GIFT OF 
 
LAWS 
 RELATING TO THE NAVY 
 
 ANNOTATED 
 
 INCLUDING THE CONSTITUTION OF THE 
 
 UNITED STATES, THE REVISED STATUTES 
 
 OF THE UNITED STATES, AND THE UNITED 
 
 STATES STATUTES AT LARGE 
 
 IN FORCE MARCH 4, 1921 
 
 COMPILED BY 
 
 GEORGE MELLING 
 
 "WASHINGTON 
 
 GOVERNMENT PRINTING OFFICE 
 
 1922 
 
v. Vi :•:'.• 
 
 ^' S. SwDf, .roor 
 
 ^tnenta. 
 
 Gift 
 
 7^' 
 /I 
 
^■ 
 
 <' 
 
 Department of the Navy, 
 Office of the Judge Advocate General, 
 
 Washington, June 28, 1922. 
 From : The Judge Advocate General of the Navy. 
 To : The Secretary of the Navy. 
 
 1. There is transmitted herewith a compilation of the laws relating to 
 the Navy, Navy Department, and Marine Corps, annotated, which has been 
 prepared by Mr. George Melling, attorney in this office, by authority of the 
 Secretary of the Navy, pursuant to the following resolution of the United 
 States Senate, adopted March 30, 1914: 
 
 Resolved, That the Secretary of the Navy be requested to prepare and submit to the Senate 
 at its next regular session, or as soon thereafter as practicable, a compilation, with complete index, 
 of existing laws relating to the Navy, Navy Department, and Marine Corps, with annotations 
 showing how such laws have been construed and applied by the Navy Department, the Comp- 
 troller of the Treasury, the Attorney General, or the courts, the cost of said compilation, not to 
 exceed $3,000, to be covered by appropriations to be reported by the Committee on Appropriations. 
 
 2. It is recommended that this compilation be published for the informa- 
 tion of the naval service, with the understanding that no inference of depart- 
 mental construction is to be drawn from the arrangement of the laws and 
 cross references embodied therein, or from the inclusion or omission of a par- 
 ticular enactment, and that no added weight is given to any decision or opinion 
 by reason of its inclusion. 
 
 J. L. Latimer. 
 Approved, June 28, 1922. 
 
 Theodore Roosevelt, 
 
 Acting Secretary of the Navy. 
 Ill 
 
 5034:] i 
 
PREFACE. 
 
 This compilation is divided into three parts, in addition to an introduction 
 briefly explaining the sources of the law governing the Navy and certain 
 elementary rules for the interpretation of statutes. 
 
 Part 1 contains the full text of the Constitution of the United States and 
 all amendments thereto, with digested decisions and opinions of especial 
 interest to the Navy, and an analytical index reproduced from official documents. 
 
 Part 2 consists of the sections of the Revised Statutes of the United States 
 relating to the Navy, Navy Department, and Marine Corps, numerically 
 arranged, as published in the second edition of the Revised Statutes * and 
 subsequent amendments to and including March 4, 1921. The annotations to 
 these sections contain references to related statutes, as well as digests of 
 decisions and opinions on the same subject. 
 
 Part 3 embodies acts and resolutions of Congress in force March 4, 1921, 
 which are not contained in the Revised Statutes, and which have been reprinted 
 from the United States Statutes at Large.^ Many of these laws are quoted 
 or summarized in Part 2, in connection with sections of the Revised Statutes 
 to which they relate; but they have nevertheless been placed in their chrono- 
 logical order in Part 3, except where they expressly amend or reenact par- 
 ticular sections of the Revised Statutes or subsequent enactments, in which 
 case they have in general been reproduced in the place of the provision for 
 which substituted, without needless duplication. In Part 3 the annotations 
 consist principally of cross references to sections of the Revised Statutes and 
 other enactments on the same subject which have been more fully an- 
 notated. 
 
 This arrangement of the compilation will make it possible for those using 
 it most frequently to turn to a particular section of the Revised Statutes or 
 to an act or resolution of a particular date, with which they are familiar, 
 without the necessity of consulting the index on every occasion; while related 
 statutes may also be readily located, from the cross references, without recourse 
 to the index. Furthermore, the sections of the Revised Statutes are grouped, 
 as in the ofTicial publication, under descriptive titles ^ and chapter headings 
 which will also facilitate the use of the compilation without constant reference 
 to the index. At the same time, no effort has been spared to make the index 
 as complete as possible. 
 
 It was naturally impracticable to annotate fully every provision of law 
 contained in the compilation, as that would have produced a work so voluminous 
 as to defeat its purpose. In this situation, certain sections have been annotated 
 copiously, and others more briefly or not at all, to the end that the compila- 
 
 > See Introduction, p. 2. 
 ' See Introduction, p. 5. 
 8 See Introduction, p. 3. 
 
PREFACE. 
 
 tiou might onibody the material which, in the light of past experience, was 
 believed to be of greatest value. 
 
 In not a few instances conflicting opinions have been rendered as to the 
 interpretation of some statutory provision concerning which there has been no 
 final adjudication. In such cases the various opinions expressed on the sub- 
 ject have been digested without regard to their effect, so that all precedents 
 might be available for consideration should the question again arise. 
 
 In order that the compilation might be found useful by those not trained 
 in the law or not having access to the decisions cited therein, the digests have 
 been stripped of technical language wherever possible, and made as full as 
 space would permit, even to the point, in some instances, of reproducing nearly 
 the entire decision, contrary to the usual practice in works of this character. 
 Other decisions which were not of general interest, or which were merely 
 cumulative, have been cited without any digest of the particular case. 
 
 It has been found necessary to include in the compilation some few statu- 
 tory provisions which were possibly not in force on March 4, 1921, but which 
 had not been expressly repealed and as to the existence of which there was 
 such doubt that their omission would have been unwarranted in the absence 
 of a definite ruling on the subject. Other provisions which were expressly 
 repealed or plainly superseded by later enactments have been omitted or, 
 when of possible liistorical value, have been included with explanatory notes. 
 
 An incomplete advance copy of the compilation, which was issued in 
 pamphlet form in 1915, has been revised and embodied in the finished work. 
 
 Certain abbreviations used in citations tlu'oughout the compilation are 
 explained in the Introduction.^ Other citations which may require explana- 
 tion are the following: "R. S." refers to the Revised Statutes of the United 
 States, second edition; ''Stat." refers to the United States Statutes at Large; 
 "Comp. Dec." refers to decisions of the Comptroller of the Treasury; "Op. 
 Atty. Gen." refers to opinions of the Attorneys General; "C. M. O." refers to 
 court-martial orders published by the Navy Department; ''S. and A. Memo." 
 refers to memoranda published monthly by the Bureau of Supplies and 
 Accounts of the Navy Department; "Naval Dig." refers to a digest published 
 by the Navy Department in 1916; file numbers refer to papers on file in the 
 office of the Secretary of the Navy. 
 
 * See Introduction, p. 6. 
 
 VI 
 
INTRODUCTION. 
 
 I. The Constitutiox. 
 II. The Revised Statutes. 
 
 III. The Statutes at Large. 
 
 IV. Decisions of Courts, Opinions of Law Officers of the Government, 
 
 Regulations, etc. 
 V. Classification of Statutes. 
 VI. The Interpretation and Construction of Statutes. 
 
 The law governing the Navy is contained principaUj in the Constitution of 
 the United States, the Revised Statutes of the United States, and the United 
 States Statutes at Large. In addition there is a large mass of naval law to be 
 found in the decisions of courts, opinions of law officers of the Government, 
 regulations issued with the express or implied approval of the President, and 
 customs and usages of the Navy. 
 
 I. The Constitution. 
 
 The ConstitutiorL consists of seven original articles, drafted in 1787, 
 and ninenteen articles in amendment thereof which have since been adopted. 
 It is provided by the original Constitution (Art. VI) that "this Constitution, 
 and the laws of the United States which shall be made in pursuance thereof; 
 and aU treaties made, or which shall be made, under the authority of the 
 United States, shall be the supreme law of the land." 
 
 Congress is authorized by the Constitution ''to provide and maintain a 
 Navy," and "to make rules for the government and regulation of the land 
 and naval forces" (Art. I, sec. 8). These clauses of the Constitution are the 
 authority for most of the statutory enactments relating to the Navy, although 
 other less explicit clauses of the Constitution impHedly authorize legislation 
 either directly or indirectly governing the Navy. 
 
(II.) INTRODUCTION. Revised Statutes. 
 
 II. The Revised Statutes. 
 
 The Re.dsed Statutes " embrace the statutes of the United States 
 general and permanent in their nature, in force on the 1st day of December, 
 1873, as revised and consohdated by commissioners appointed under an act of 
 Congress." * 
 
 The " Revised Statutes " is one act of Congress, over a thousand 
 pagfts in length, entitled ''An act to revise and consolidate the statutes of the 
 United States, in force on the first day of December, anno Domini one thou- 
 sand eight hundred and seventy-tlu-ee " ; it commences with the usual clause, 
 ^^ Be it enacted hy the Senate and House of Representatives of the United States of 
 America in Congress assembled/' contains 5,601 sections, bears the approval of 
 the President dated June 22, 1874, and provides that it "shall be designated 
 and cited, as The Revised Statutes of the United States," ^ 
 
 The main object of the revision was to incorporate all the existing 
 statutes in a single volume, that all persons desiring to know the written law 
 upon any subject might learn it by an examination of that volume without the 
 necessity of referring to prior statutes upon the subject.^ Accordingly it was 
 provided by the Revised Statutes that " all acts of Congress passed prior to said 
 first day of December, one thousand eight hundred and seventy-tliree, any 
 portion of which is embraced in any section of said revision, are hereby repealed 
 and the section applicable thereto shall be in force in lieu thereof; all parts of 
 such acts not contained in such revision, having been repealed or superseded 
 by subsequent acts, or not being general and permanent in their nature." ^ 
 However, it is further provided by the Revised Statutes that " aU acts of Con- 
 gress passed prior to said last-named day [December 1, 1873] no part of which 
 are embraced in said revision, shall not be affected or changed by its enact- 
 ment"; ^ and it is permissible, when necessary, to refer to the original statutes 
 as an aid to the interpretation of sections of the Revised Statutes where the 
 meaning of the latter is not plain. 
 
 The first edition of the Revised Statutes was published in 1874, 
 pursuant to an act of Congress approved June 20th of that year; ^ it is a tran- 
 script of the original Revised Statutes as enacted by Congress and approved 
 by the President, and which is preserved in the Department of State.^ A great 
 many errors and omissions were discovered in the Revised Statutes after the 
 publication of the first edition, and several hundreds of such errors were cor- 
 rected in subsequent acts of Congress.* 
 
 A second edition of the Revised Statutes was published in 1878, 
 having been prepared by a commissioner appointed under authority of an act 
 of Congress approved March 2, 1877.^ This second edition "is not in any 
 proper sense a new revision of the statutes of the United States. The commis- 
 
 1 Section 5595, R. S. 
 
 2 Hamilton v. Rathbone (175 U. S., 421); Murdock v. Memphis (20 WalL, 590, 617). 
 
 3 Section 5596, R. S. 
 * 18 Stat.. 113. 
 
 6 Wright V. U. S. (15 Ct. CIs., 80). 
 
 6 Act Feb. 18, 1875, 18 Stat., 316, entitled " An act to correct errors and to supply omissions in the Revised Statutes 
 o( the United States"; act Feb. 27, 1877 (19 Stat., 268), entitled "An act to perfect the revision of the statutes of the 
 United States and of the statutes relating to the District of Columbia." 
 
 ' 19 Stat., 268. 
 
Revised Statutes. INTRODUCTION. (II. 
 
 sioner was not clothed with power to change the substance or to alter the lan- 
 guage of the existing edition of the Revised Statutes, nor could he correct any 
 errors or supply any omissions therein except as authorized by the several 
 statutes of amendment. Of specific amendments there are, however, several 
 hundred, which have been incorporated with the text. The portions of the 
 statutes repealed are printed in italics and included in brackets, and the new 
 matter introduced is printed in the ordinary roman letter and also included 
 in brackets." ^ This form has been followed in the present compilation, which 
 is based on the second edition of the Revised Statutes, being the edition now in 
 general use. (See, for example, sec. 284 of the Revised Statutes, as printed 
 herein.) 
 
 This second edition of the Revised Statutes is only a new pubhcation; 
 a compilation containing the original Revised Statutes with specific amend- 
 ments afterwards made by Congress and incorporated therein according to the 
 judgment of the editor.- 
 
 By direction of Congress there was pubhshed, as part of the second edition, 
 the Articles of Confederation, the Declaration of Independence, the Ordinance 
 of 1787 for the Government of the Northwestern Territory, the Constitution 
 of the United States with footnotes referring to decisions of the Federal courts 
 thereon, the "act to provide for the revision and consohdation of the statute 
 laws of the United States," approved June 27, 1866, the ''act providing for 
 pubhcation of the Revised Statutes and the laws of the United States," ap- 
 proved June 20, 1874, and the "act to provide for the preparation and pubh- 
 cation of a new edition of the Revised Statutes of the United States," approved 
 March 2, 1877. There is also pubhshed an act amending the act last cited, 
 approved March 9, 1878. 
 
 "Titles" in the Revised Statutes. — The Revised Statutes is 
 divided into 74 "titles," which titles when of sufficient length are subdivided 
 into "chapters." Title I, which is in two chapters, contains "General Pro- 
 visions," dealing with "definitions," and "form of statutes and effect of 
 repeals"; continuing, the various titles cover "The Congress" (Title II); "The 
 President" (Title III); the "Executive Departments," collectively and sepa- 
 rately (Titles IV to XII); "The Judiciary" (Title XIII); "The Army" (Title 
 XIV); "The Navy" (Title XV); "The Militia" (Title X\^); and so on to 
 Title LXXIV, which contains "Repeal Provisions." 
 
 It is provided by the Revised Statutes that "the arrangement and classi- 
 fication of the several sections of the revision have been made for the purpose 
 of a more convenient and orderly arrangement of the same, and therefore no 
 inference or presumption of a legislative construction is to be drawn by reason 
 of the Title under which any particular section is placed." ^ Thus, for example, 
 section 1428 of the Revised Statutes, which appears under Title XV, "The 
 Navy," provides that "the officers of vessels of the United States shaU in all 
 cases be citizens of the United States." The law from which this section is 
 taken did not relate to the Navy, and no inference of a '^ legislative construction" 
 could be drawn by reason of this clause being placed in the revision under the 
 
 I Extract from preface to second edition of the Revised Statutes. » Section 5600, R. 8. 
 
 » Wright V. U. S. (15 Ct. Cls., 80). 
 
 3 
 
(II.) INTRODUCTION. Revised Statutes. 
 
 title mentioned. That is to say, the mere fact that this section is placed under 
 the title relating to the Navy is not to be taken to mean that Congress regarded 
 this law as applicable to the Navy, and intended it to be so construed. How- 
 ever, upon other considerations this section has been held to require that officers 
 of vessels of the Navy must be citizens of the United States the same as officers 
 of private vessels of the United States.* (The same provision is repeated in 
 section 4131, Revised Statutes, under the title, "Regulation of Commerce and 
 Navigation.") 
 
 Marginal notes.^ — The first edition of the Revised Statutes, by direction 
 of Congress contained marginal notes referring to the statutes from which 
 each section was compiled. Thus, under Title X, "The Department of the 
 Navy," will be found section 415 wliich provides that 'Hhere shall be at the 
 seat of Government an Executive Department, to be known as the Department 
 of the Navy, and a Secretary of the Navy, who shall be the head thereof." 
 After this section appears the following note: "30 April, 1798, c. 35, s. 1, v. 1, p. 
 553." This note means that section 415 was based on the act of Congress 
 approved April 30, 1798, chapter 35, section 1, which act is published in volume 
 1 of the Statutes at Large, page 553. By reference to the volume and page 
 cited will be fomid the original law establishing the Department of the Navy. 
 
 Many sections of the Revised Statutes w^ere compiled from several acts of 
 Congress, in which cases the margmal notes are more copious; as, for example, 
 section 161, concernmg "Departmental regulations, property, and records," 
 the notes to which section refer to nine acts of Congress, all of which must be 
 examined if it is desired to trace the history of the section. 
 
 These marginal notes can not in all cases be accepted as correct, as in some 
 instances erroneous references are given. Thus, the note to section 285 of the 
 Revised Statutes cites volume 19, instead of volume 9, of the Statutes at Large 
 for the original law upon which this section of the revision was based. Nor do 
 the margmal notes in aU cases furnish a complete history of the legislation, as 
 for example, section 1422 of the Revised Statutes, w^hich cites an act passed 
 in 1862 as its earliest authority, whereas a similar statute was enacted March 2, 
 1837. (5 Stat., 153.) 
 
 In the second edition of the Revised Statutes the original marginal ref- 
 erences are preserved, with additional notes incorporated pursuant to instruc- 
 tions given by Congress and referring to acts passed subsequent to the period 
 covered by the revision, which either expressly amend same or which, in the 
 opinion of the commissioner, "may in any manner affect or modify any of the 
 provisions of the said Revised Statutes or any of the amendments thereto." 
 References to statutes of this kind were expressly directed by Congress to be 
 indicated in the marginal notes by a difference m type. Thus, referring again 
 to section 161, the last act cited in the marginal notes thereto is "15 Aug., 
 1876, c. 287, s. 3, v. 18, p. 169, " italics being used to distinguish this reference 
 from those contained in the marginal notes which appeared in the first edition 
 under the same section and which are repeated in the second edition in roman 
 letters. 
 
 I See note tj section 1428, Revised Statutes. 
 
 ■■i In this compilation (pt. 2) the marginal notes are reprinted from tlie second edition of the Revised Statutes, but 
 appear in parentheses immediately following the text, instead o fin the margin. 
 
statutes at Large. INTRODUCTION. (III.) 
 
 The marginal notes are not only of historical value, but frequently are 
 important in interpreting sections of the Revised Statutes, where it becomes 
 necessary to refer to the original law in order to ascertain the meaning of 
 ambiguous language occurring in the revision.^ 
 
 III. The Statutes at Large. 
 
 The Statutes at Large consist at this writing of 41 volumes, extending 
 from March 4, 1789, to March 4, 1921. The laws contained in the first 17 
 volumes are practically superseded by the Revised Statutes, and occasions for 
 reference to said volumes will ordinarily be infrequent. The remainmg vol- 
 umes, however, commencing with December 1, 1873, must always be consulted 
 in connection with the Revised Statutes in order to ascertain whether any 
 particular section of the revision has been repealed, superseded, amended, or 
 otherwise affected by subsequent enactments. More than a thousand sections 
 of the revision have thus been modified by various later statutes, in addition 
 to which a "Criminal Code" and a "Judicial Code" have been enacted, revis- 
 mg and superseding the sections of the Revised Statutes as well as subsequent 
 laws on those subjects. 
 
 An " Index Analysis of the Federal Statutes," from 1789 to 1907, 
 was pubhshed by authority of Congress in 1908, and this will be found inval- 
 uable in locating the sections of the Revised Statutes on any subject and 
 amendatory acts contained in volumes 18 to 34 of the Statutes at Large. For 
 later enactments reference must be had to the official index contained in each 
 volume of the Statutes at Large, with the assistance where available of 
 unofficial pubfications, such as the "United States Compiled Statutes," the 
 "Federal Statutes Annotated," the "United States Statute Citer-Digest," etc., 
 to which pubfications supplements are issued periodically, keeping the various 
 works practically up to date. 
 
 IV. Decisions of Courts, Opinions of Law Officers of the Govern- 
 ment, Regulations, etc. 
 
 Authoritative decisions and opinions of the Federal courts and 
 law oflB.cers expounding the law contained in the Revised Statutes and the 
 Statutes at Large become, in effect, a part of the various laws which have 
 been the subject of such decisions and must be carefully consulted if it is desired 
 to know definitely what the law is on any given subject. Thus, let it be sup- 
 posed that the question is. What law authorizes the retirement of warrant 
 officers of the Navy for physical disabifity? An examination of the Revised 
 Statutes and Statutes at Large will not disclose any law specificaUy covering 
 the point at issue. Turning, then, to the decisions of the courts, we find 
 that the question was considered by the United States Supreme Court in the 
 case of Brown v. United States,^ and that it was there held to be doubtful 
 whether the retirement of warrant officers for physical disabifity was authorized 
 by law, but that the court decided to adopt the decision of the Navy Depart- 
 ment that warrant officers, the same as commissioned ojficers, should be 
 
 » See below, VI, D, 2, "Marginal Notes In Revised Statutes." *113 U. S., 571. 
 
(IV.) INTRODUCTION. Decisions, etc. 
 
 retired under sections 1448 to 1455, Revised Statutes. The result of this 
 decision is that the sections cited include warrant officers the same as if they 
 had boon spocificaUy montionod therein by Congress. 
 
 Decisions of the United States Supreme Court of course rank first 
 among the Fetk^ral authorities, and those are published officially in what are 
 known as the United States Reports, although the earlier volumes are known 
 and commonly cited by the names of the ofhcial reporters, viz, Dallas, Cranch, 
 Wheaton, Peters, Howard, Black, Wallace, and Otto. Thus, '' 1 Pet., 100," would 
 mean volume 1 of Peters's reports of the decisions of the United States Supreme 
 Court, page 100. The official pubhcations of later decisions of the Supreme 
 Court are cited simply as "U. S." Thus "200 U. S., 100," would mean volume 
 200 of the decisions of the United States Supreme Court, page 100. 
 
 Decisions of Inferior Federal courts come next, and these may be 
 found in the Federal Cases, cited as "Fed. Cas.," and extending from 1789 to 
 1880; and the Federal Reporter, cited as "Fed. Rep." or "Fed.," and extending 
 from 1880 to date; both of which reports, although unofficial publications, are 
 generally consulted and cited by lawyers and courts, the official publications of 
 the same decisions being of more limited circulation. These reports, however, 
 do not mclude the decisions of the Court of Claims, which are published officially 
 in what are known as the Court of Claims Reports, cited as "Ct. Cls." or 
 "C. Cls.," and contain a particularly large number of decisions of importance 
 to the Army and Navy. ^ 
 
 The Attorney General being the chief law officer of the Government, 
 his official opinions, which are published by authority of Congress, come next 
 in order after decisions of the Federal courts in the interpretation of Federal 
 statutes and the appUcation of judicial decisions relating thereto. Other 
 opinions and decisions are pubhshed by different departments of the Govern- 
 ment, such as the Decisions of the Comptroller of the Treasury, Decisions of 
 the Department of the Interior, Decisions of the Interstate Commerce Com- 
 mission, etc. 
 
 Decisions of State courts also contain many cases relating to naval 
 law, which, while not controlling upon the Federal Government, are usually 
 regarded as instructive and accorded more or less weight, in the consideration 
 of similar questions, where not in conflict with any Federal authority. 
 
 Short-cuts to these decisions are to be found in the digests and indexes 
 pubhshed in connection therewith, and in legal encyclopedias, text-books, and 
 unofficial indexes and digests. Among the latter the most important is the 
 "American Digest," which contains in accessible form a complete digest of all 
 reported decisions of American courts, commencing with the year 1658 and kept 
 practically up to date by new editions and supplements. Of value in this 
 connection are the unofficial reports of leading cases, published with notes, in 
 which are collected important decisions bearing upon the points discussed, 
 such as the "Lawyers Reports Annotated," cited as "L. R. A.," the "American 
 and Enghsh Annotated Cases," cited as "Ann. Cas.," etc. Also should be 
 mentioned what are known as "Shepard's Citations," which enable the lawyer 
 to trace the decisions in which a particular case has been cited, affirmed, fol- 
 
 ' For brief explanation of the judicial system of the United States, see note to the Constitution, Article I, section 8, 
 clause 9. 
 
Classes of Statutes. INTROD UCTION. (V.) 
 
 lowed, distinguished, reversed, etc. Of these, "Shepard's United States 
 Citations," and "Shepard's Federal Citations" are the ones to be consulted 
 in connection with decisions of the Federal courts. 
 
 Regulations and customs and usages of the Navy, where approved 
 by Congress, or not in conflict with any statutory enactment, have the force 
 of law and are so regarded by the courts. For reference to the authorities 
 relating to this subject, and bearing particularly upon the force and effect of 
 Navy Regulations, Naval Instructions, usages of the Navy, etc., see notes to 
 sections 161 and 1547 of the Revised Statutes, published in this compilation. 
 
 V. Classification of Statutes. 
 
 A great many classifications of statutes have been adopted and are of 
 importance in connection with rules to be appUed to their interpretation. Of 
 the different classes the following may be mentioned and briefly explained : 
 
 A declaratory statute is one which merely declares or afiirms what is 
 already the existing law by established custom or by constitutional or statutory 
 provision. Thus, by section 1458 of the Revised Statutes, under the title "The 
 Navy," it was provided that " the next officer in rank shall be promoted to the 
 place of a retired officer, according to the established rules of the service;" by 
 various laws referrmg to different classes of officers of the Navy it is required 
 that they pass prescribed examinations prior to promotion, although a general 
 requirement to the same effect is contained in sections 1493 and 1496 of the 
 Revised Statutes; by act of August 22, 1912,^ it is provided that the President 
 may mitigate or remit disabilities imposed by law upon convicted deserters 
 from the Navy, a power which he already possessed and exercised under the 
 Constitution; and by sections 177 to 182 of the Revised Statutes the President 
 is empowered to make temporary designation of an officer to perform the duties 
 of the head of a department or bureau in case of the death, resignation, absence 
 or sickness of the incumbent, although prior to the enactment of the law now 
 contained in those sections it had been held by the Attorney General that this 
 power was possessed and properly exercised by the President under the Constitu- 
 tion.- In that case, however, the Attorney General said that " a general pro- 
 vision of law is desirable to remove all doubt on the subject,"^ and this is the 
 principal value of all such declaratory statutes. 
 
 Public and private acts. — Of "public" and "private" statutes it has 
 been said that "the former embrace the whole community; the latter only 
 certain individuals or associations. The only important distinction is that 
 courts take notice of the former without special reference, but not of the latter. 
 It is usual, however, to do away with this distinction, by inserting in private 
 statutes a special clause declaring that they shall be treated as public."^ 
 
 Special or private acts are rather exceptions than rules; being those which 
 operate only upon particular persons and private concerns, the judges are not 
 bound to take notice unless they be formally shown and pleaded.* 
 
 1 37 Stat., 356. 
 
 2 See notes to sections 177 and 181, Revised Statutes. 
 
 3 Walker's American Law, section 17. See also Unity v. Barrage (103 U. S., 447, 454, 456); Beaty v. Knowler (4 Pet. 
 152); Railroad Co. v. Richmond (96 U.S., 521, 529); U. S. v. St. Anthony R. Co. (192 U. S., 524); Young y. Bark (4 Cranch, 
 384,388); Gardner v. CoUector (6 Wall., 499,508). 
 
 * 11 Enc. U. S. Rep., 71; Unity v. Barrage (103 U. S., 447, 454); People v. Wright (70 ni., 388, 398). 
 
(V.) INTRODUCTION. Classes of Statute. 
 
 "In this country the disposition has been, on the whole, to enlarge the 
 Umits of the class of public acts, and to bring within it all enactments of a 
 general character, or whicli in any way affect the community at large." ' 
 
 Congress has provided that "the term 'private bill' shall be construed to 
 mean all bills for the rehef of private parties, biUs granting pensions, bills 
 removing politicjil disabilities, and bills for the survey of rivers and harbors." ^ 
 
 A penal statute, as the name implies, is one which imposes a penalty. 
 This class embraces all such statutes as provide for the punishment of offenses 
 against the State and which are within the pardoning power of the Executive.^ 
 In a broader sense the term includes acts which are penal in their nature, 
 although not enforceable by a criminal prosecution.* A statute providing that 
 no officer or enlisted man of the Army shall receive pay for time absent from 
 duty on account of misconduct is in the nature of a penal statute and must be 
 construed strictly ; ^ but one requiring that officers of the Navy who are found 
 unfit for promotion from causes arising from their own misconduct shall be 
 discharged with not more than one year's pay, is not a penal statute,^ as it was 
 not intended for the punishment of such officers, but primarily to promote the 
 efficiency of the service. 
 
 A remedial statute is one which is beneficial in its nature, intended to 
 redress some existing grievance, to introduce some new regulation or proceeding 
 conducive to the public good, or to supply defects of the law arising from 
 mistake, change of circumstances, etc.'' Thus a law providing for the reap- 
 pointment and retirement of a former officer of the Navy is remedial, ^ as are 
 laws providing for the removal of the charge of desertion standing on the 
 records of the Army or Navy against certain classes of persons who served 
 in the Civil War, * laws authorizing the issuance of discharge certificates in true 
 name to persons who enlisted under assumed names, etc.; also a statute pro- 
 viding for extensions of enhstments by men in the Navy. '" 
 
 A mandatory statute is one which absolutely requires strict com- 
 phance with its terms, so that official acts not done in the manner it prescribes 
 are null and void. " 
 
 A directory statute is one intended merely "for the guide of officers in 
 the conduct of business devolved upon them, which " does "not limit their power 
 or render its exercise in disregard of the [statutory] requisitions ineffectual. 
 Such generally are [statutory] regulations designed to secure order, system, 
 and dispatch in proceedings, and by a disregard of which the rights of parties 
 interested can not be injuriously affected." '^ 
 
 1 Unity V. Burrage (103 U. S., 447, 45.5); Ketchum v. St. Louis (101 U. S., 315). 
 
 2 Public printing and binding act, Jan. 12, 1895, section 55 (28 Stat., 609), as amended by act Jan. 20, 1905, section 2 
 (33 Stat., 611). 
 
 « U. S. t'. Chouteau (102 U. S., 603, 611); Huntington v. AttriU (146 U. S., 657, 667). 
 
 < Huntington v. Attrill (146 U. S., 657, 660, 667). 
 
 '20Comp. Dec., 69. 
 
 « See note to act Aug. 5, 1882 (22 Stat., 286); file 26260-1392, June 29, 1911; see also Street v. U. S. (133 U. S., 300) ; and 
 see note to section 1441, Revised Statutes. 
 
 ' See Baylies t'. Curry (30 111. App., 105, 109); Van Hook v. Whitlock (N. Y.), 2 Edw. Ch., 304, 310; O'Connor v. State 
 (71 S. W. (Tex.), 409, 411); In re Lauritsen (99 Minn. 520, 109 N. W. 404, 408); Buckmaster v. McEIroy (20 Nebr., 557, 
 564, 31 N. W., 76, 80); Western Trav. Ace. Assn. v. Taylor (87 N. W., 950, 953, 62 Nebr., 783); Montpelier v. Senter (72 
 Vt.,112, 47 Atl.,392,393). 
 
 8 Quackenbush v. U. S. (177 U. S., 20, 27). 
 
 » File 26539-551, Mar. 17, 1913; 19 Op. Atty. Gen., 222; Cole v. U. S. (34 Ct. Cls., 454). 
 
 10 20 Comp. Dec., 380. 
 
 » 36Cyc., 1157; Bondw. Baltimore (118 Md., 159, 84 Atl., 258, 260); French v. Edwards (13 Wall., 506); Hubbert v. 
 Campbellsville Lumber Co. (191 U. S., 76, 77). 
 
 >2 French v. Edwards (13 WaU., 511). 
 
 8 
 
statutory Construction. INTRODUCTION. (VI, A.) 
 
 A prospective statute is one which applies to future cases and con- 
 ditions. 
 
 A retrospective statute is one which applies to and operates upon a 
 past state of facts. A retrospective statute affectmg and changing vested 
 rights is very generally considered in this country as founded on unconstitu- 
 tional principles and consequently inoperative and void. * 
 
 A curative statute is a retrospective law ordinarily passed to validate 
 irregularities in legal proceedings, or to give effect to contracts which might 
 otherwise fall for failure to comply with teclinical legal requirements.^ Cura- 
 tive acts may also be embraced in the remedial class. 
 
 "The power which can direct what proceedings shall be had can approve 
 and make valid any proceedings which are actually taken. The power which 
 can give authority to act can ratify any act that is taken, and generally leg- 
 islative recognition of an act or a corporation validates the act or the corpo- 
 ration, although neither one nor the other may have had fuU prior legal 
 authority." ^ 
 
 VI. The Interpretation and Construction of Statutes. 
 
 A. GENERAL CONSIDERATIONS. 
 
 B. THE LEGISLATIVE INTENT TO BE GIVEN EFFECT. 
 
 C. HOW LEGISLATIVE INTENT IS TO BE ASCERTAINED. 
 
 D. AIDS TO INTERPRETATION OF AMBIGUOUS STATUTES. 
 
 E. CONSTRUCTION OF PARTICULAR STATUTES. 
 
 A. GENERAL CONSIDERATIONS. 
 
 A distinction has been drawn between the words "interpretation" and 
 "construction," the former being held to mean the reading of a statute accord- 
 ing to its letter, while the latter is defined to be the reading of a statute accord- 
 ing to its spirit and intent;* it being said that "the very essence of construction 
 is the extension of the meaning of a statute beyond its letter."^ In practice, 
 however, this distinction is not always observed, the terms frequently being 
 used interchangeably. 
 
 "On the abstract principles which govern courts in construing legislative 
 acts, no difference of opinion can exist. It is only in the application of those 
 principles that the difference discovers itseK."^ It has been said that "there 
 are many rules of interpretation, but they are of little use; common sense is 
 the best guide." ^ It has also been said that "it is perfectly possible to make 
 almost anything out of a tariff act by construction without violating rules for 
 the interpretation of statutes,"^ and that "when justices of the United States 
 
 1 Heinzen v. U. S. (42 Ct. Cls., 58). See also Hubbert v. CampbellsviUe Lumber Co. (191 U. S., 76, 77); Bond v. Balti- 
 more (118 Md., 159, 84 Atl. 258, 260); 36 Cyc, 1157; Compare Schenck v. Peay, 21 Fed. Cas. No. 12451. 
 
 2 Schamblin v. Means (6 Cal. App., 261, 91 Pac, 1020, 1022); McSurely v. McGrew (140 Iowa, 163, 118 N. W., 415, 
 119); Meigs v. Roberts (162 N. Y., 371, 56 N. E. 838, 840). 
 
 3 Street v. IT. S. (133 U. S., 307); see also 13 Comp. Dec, 417. 
 
 4 U. S. V. Farenholt (206 U. S., 226); Felton v. U. S. (96 U. S. 699, 702). 
 ' Williams v. Gaylord (186 U. S., 157, 163). 
 
 6 U. S. V. Fisher (2 Cranch, 358, 386). 
 
 ' Walker's Am. L., sec. 17. 
 
 » Clay V. Erhardt (48 Fed. Rep., 294). 
 
 9 
 
(VI, B.) INTRODUCTION. Statutory Construction. 
 
 Supreme Court (or of any other court) divide on a question of statutory con- 
 struction, the minority rarely have difhculty in finding well-settled rules of 
 interpretation to support their dissent."* However, the rules by which courts 
 are guided in construing statutes are sanctioned by wisdom and experience,^ of 
 which they are the outgrowth; an examination of these rules will show that 
 "common sense" is generally their foundation; and in cases where different 
 rules, if applied, would lead to opposite results in construing a statute, ordinarily 
 little difhculty will be experienced in determining which of the rules must 
 yield in the particular case, resort being had under such circumstances to the 
 many aids to interpretation sanctioned by precedent. In involved cases, 
 where several statutes are passed at different times relating to the same subject, 
 the provisions of which to the uninitiated may appear to be hopelessly at 
 variance, apphcation of established principles of construction will generally 
 serve to evolve a systematic and harmonious legislative scheme from the whole. 
 
 However, regardless of individual opinions as to the value of rules of 
 construction, it is certam that a knowledge of the fundamental princi- 
 ples and their application is necessary if it is desired to construe a law with 
 reasonable assurance that the result reached will likely be sustained by a court, 
 if later called upon judicially to construe the same statute; for if the con- 
 struction placed upon a law can not be sustained by any estabUshed canon of 
 statutory construction, it is apparent that such construction will have diffi- 
 culty in prevailing against estabhshed rules if attacked in a court by which 
 such rules will certainly be apphed. 
 
 The principles stated in the followmg pages are well established. Gen- 
 erally, illustrative cases have been mentioned or cited, but the decisions in 
 which the different rules of construction have been applied are so numerous 
 and the circumstances so varied that to attempt more than a bare outline 
 would be beyond the scope of this introduction. 
 
 B. THE LEGISLATIVE INTENT TO BE GIVEN EFFECT. 
 
 The first rule to be observed in construing statutes is that if possible an 
 act is to be so construed as to effectuate the legislative intent. This has been 
 called "the cardmal rule of construction." ^ 
 
 1. What is the legislative intent. — The "legislative intent" does not 
 mean the mtention of the person who drafted the law, nor the intention of the 
 individual member who introduced it in the legislative body, but the intention 
 of the legislature as a whole. The purpose of the majority who voted for the 
 passage of the law may have been entirely different from that of the particular 
 individuals who proposed it or who may have been interested in securing its 
 enactment. Accordingly it is established by the authorities that the intention 
 of the individual by whom a statute was framed can not be considered in 
 determining the meaning of such statute.* 
 
 1 1 Fed. Stat. Ann. (2d ed.), 25. 
 
 2 See The Paulina's Cargo (7 Cranch, 52, 60); Cary v. Curtis (3 How., 236, 239); The Mary Ann (8 Wheat., SsO, 3S7). 
 
 > Postmaster General v. Early (12 Wheat., 136, 152); see also 9 Op. Atty. Gen., 472, In which it was stated: "It was 
 unnecessary to quote a judicial decision for the purpose of proving that all written laws are to be construed according to 
 the Intention of the legislature, for that is a fundamental principle which nobody denies." 
 
 * File 24482-34, May 1, 1911; see below, VI, D, 5, "Legislative History." 
 
 10 
 
statutory Construction. INTRODUCTION. (VI, B.) 
 
 2. The courts always presume that the legislature acts advisedly 
 and with full knowledge of the situation. ^ "We must assume that the mem- 
 bers by whose vote the act became a law fully weighed its meaning and 
 intended what it expressed. "^ Thus, in prohibiting heads of departments, 
 other than the Attorney General, from employing attorneys or counsel at the 
 expense of the United States, Congress is presumed to have contemplated, 
 inasmuch as ships of war are constantly on the high seas and in foreign ports, 
 that questions of law would arise in respect to them in the administration of 
 the Navy Department, and accordingly intended to include the employment of 
 counsel in foreign countries within the prohibition of the statute.^ And in 
 construing a statute providing for the distribution of prize money and author- 
 izing payment of a specified bounty where the enemy's vessel was "of equal 
 or superior force," it was held that the court could not suppose that Congress 
 overlooked the fact that an enemy's vessel might be supported by land bat- 
 teries, mines, and torpedoes, and accordingly that "the enemy's vessel" did 
 not mean the enemy's vessel and the land batteries, mines, and torpedoes by 
 wliich it was supported.* 
 
 3. It is the intent of the legislature, as expressed in the law itself 
 and apparent upon its face, that must govern its construction if that intent 
 can reasonably be gathered from its terms.^ 
 
 4. Where the language of the statute is plain and unambiguous, 
 *' the legislature should be intended to mean what they have plainly expressed," 
 and there is no need to resort to rules of construction to get at the intent and 
 meaning of the law.^ "Legislative enactments, where the language is unam- 
 biguous, can not be changed by construction, nor can the language be divested 
 of its plain and obvious meaning. ' ' ^ 
 
 5. It is the province of courts to construe laws and not to make 
 them; accordingly, considerations of injustice, inconvenience, and absurdity 
 which may result from interpreting a statute according to its letter, where clear 
 and unambiguous, must be addressed to the legislature.^ Where great incon- 
 venience will result from a particular construction, that construction is to be 
 avoided, unless the meaning of the legislature be plain; in which case it must be 
 obeyed.^ It is only where the proper construction is otherwise doubtful that 
 arguments based on the mconvenience, injustice, or prejudice to the public 
 interests resulting from a proposed construction may be considered.^" "It is, 
 however, an adamantine rule of interpretation that the intention of the legis- 
 lature is to be gathered from the words of the statute; and where the phrase- 
 
 1 Chesapeake, etc., Tel. Co. v. Manning (186 U. S., 238, 245); Field v. Clark (143 U. S., 649, 672); 28 Op. Atty. Gen., 87; 
 19 Op. Atty. Gen., 591. 
 
 2 Slidell V. Grandjean (111 U. S., 412, 437). 
 
 3 21 Op. Atty. Gen., 195; see section 189, Revised Statutes, and note. 
 
 < Dewey v. U. S (178 U. S., 510). [Prize money is not now allov/ed by law.] 
 i File 26253-200:1, Feb. 17, 1912; see also file 2625.3-114, Aug. 19, 1910, page 14. 
 « Lake Co. v. Rollins (1.30 U. S., 670); Dewey v. U. S. (178 U. S., 521); 27 Op. Atty. Gen., 431, 432. 
 ' State Tonnage Tax Cases (12 Wall., 204, 217); Rodger's case (36 Ct. Cls., 266); Clark's case (37 Ct. Cls., 60); 26 Op. 
 Atty. Gen., 537. 
 
 8 11 Enc. U. S. Rep., 151; Donn v. Hamdon (1 Paine 61, 9 Fed. Cas. No. 4819, reversed, 1 Wheat., 300); 20 Op. Atty. 
 Gen., 736; Thoraley v. U. S. (113 U. S., 310, 315); U.S. v. Chase(135U. S., 255, 262); U. S. v. Alger (152 U. S., 384, 397); Plessy 
 V.Ferguson (163 U. S., 537, 558); Hawaii v. Mankichi (190 U. S., 197,247); Citizens' Bank?;. Parker (192 U.S., 73, 80); New 
 Jersey U.Anderson (203 U.S., 483, 490); Texas, etc., R. Co. v. Abilene Cotton Oil Co. (204 U.S., 426); The Garden City (26 
 Fed. Rep., 766); In re Howard (63 Fed. Rep., 265). 
 
 9 U. S. V. Fisher (2 Cranch, 358, 386). 
 
 10 File 26521-30, Jan. 25, 1912; 26 Op. Atty. Gen., 537. 
 
 54641°— 22 2 11 
 
(VI, B.) INTRODUCTION. Statutory Construction. 
 
 ology admits of no doubt, the definitely expressed meaning must be recognized, 
 notwithstanding the statute as thus construed may bo deemed irrational legis- 
 lation."' The province of a court "is to declare what the law is, and not, 
 under the guise of interpretation, or under the influence of what may be sur- 
 mised to be the policy of the Government, so to depart from sound rules of 
 construction as in effect to adjudge that to be law which Congress has not 
 enacted as such."^ 
 
 6. The spirit and purpose of the act are not to be lost sight of in 
 a strict adherence to its letter; ^ for " a thing which is within the intention 
 of the makers of a statute is as much within the statute as if it were within the 
 letter; and a thing which is within the letter of the statute is not within the 
 statute imless it be within the intention of the makers."* The classical prece- 
 dent commonly cited by courts on this point is the case in which a statute pro- 
 hibiting the drawing of blood in the streets of Bologna was held not to apply to 
 a surgeon who drew blood in treating a patient suddenly taken ill in the street, 
 although literally construed he was subject to its penalties. Similarly a statute 
 providing that a prisoner who broke prison should be held guilty of a felony 
 would not be applied by the court to a prisoner who broke out of prison when it 
 was on fire; "for he is not to be hanged because he would not stay to be burnt." 
 These cases were quoted by the Supreme Court of the United States in holding 
 that a pohce officer who arrested a mail carrier upon a charge of miu^der, while 
 the mail carrier was on duty, was not guilty of a crime in delaying the mails 
 although he thereby violated the letter of a Federal statute.^ 
 
 A leading case on this point is Holy Trinity Church v. United States.^ The 
 statute prohibited the importation of aliens under a contract to perform labor 
 in this country. Certain classes of persons, such as actors, artists, lecturers, 
 etc., were expressly excepted from the prohibition of the statute, but ministers 
 were not so excepted. It was nevertheless held by the court that the intent of 
 the law was not to include ministers in its prohibition, and accordingly that the 
 bringmg of a minister to this country imder contract was not prohibited by the 
 statute, although within its letter. "The operation of such a statute must be 
 restrained within narrower limits than its words import, if the court is satisfied 
 that the hteral meaning of its language would extend to cases which the legis- 
 lature never intended to include in it." ^ 
 
 So also the meaning of the legislature may be extended beyond the precise 
 words used in the law, from the reason or motive upon which the legislature 
 proceeded, from the end in view, or the purpose which was designed; the limita- 
 tion of the rule being that to extend the meaning to any case not included 
 within the words, the case must be shown to come within the same reason 
 upon which the lawmaker proceeded, and not merely a like reason.^ Thus the 
 words "assistant surgeons," as used in the Navy personnel act of March 3, 
 
 1 1 Fed. Stat. Ann. (2d. ed.), 99; see also 9 Op. Atty. Gen., 50; 13 Op. Atty. Gen., 460. 
 2 Dewey v. U. S. (178 U. S., 521); White v. U. S. (37 Ct. Cls., 378; 191 U. S., 545, 551). 
 « Felton V. U. S. (96 U. S., 699, 702). 
 
 <26 0p. Atty. Gen., 356, 362; U. S. v. Freeman (3 How., 565); Raymond v. Thomas (91 U. S.,715); 11 Enc.U.S.Rep. 
 113, 114. 
 
 6 U. S. ». Kirby (7 Wall., 482). 
 
 « 143 U.S., 457. 
 
 ' U. S. v. American Bell Tel. Co. (159 U. S., 548, 549); see also Brewer v. Blougher (14 Pet., 198). 
 
 « U. S. V. Freeman (3 How., 656) 
 
 12 
 
statutory Construction. INTRODUCTION. (VI, B.) 
 
 1899, were construed to include passed assistant surgeons, in order to effectuate 
 the intent of the law.* 
 
 These principles must be cautiously applied, and can not be extended to 
 the point where, under the guise of construction, the power of legislation is 
 attempted to be exercised. The cases in which the letter of the statute is not 
 deemed controUing "are few and exceptional, and only arise where there are 
 cogent reasons for beheving that the letter does not fully and accurately disclose 
 the intent. No mere omission, no mere failure to provide for contingencies, 
 which it may seem wise to have specifically provided for, justify any judicial 
 addition to the language of the statute." ^ " It is not for the courts to tamper 
 with the words of a statute, or by a stramed construction of legislative enact- 
 ments, the language of which is clear and explicit, to accomplish results not 
 contemplated by Congress."^ Where a provision is omitted from a statute, 
 either by design, mistake, or oversight of the legislature, the courts have no 
 power to supply it where the language used is clear and unambiguous.* " It is 
 better to submit to a temporary inconvenience than to set the laws all afloat by 
 laying down a canon of construction which leaves the plain words and seeks to 
 speU out, or guess at, the supposed intent of the legislature, contrary or supple- 
 mentary to that which is clearly embodied in the words it has used." ^ The 
 principle that a thing may be within the intent of the law, though without the 
 letter, does not warrant includmg a thing which has been omitted by Congress, 
 because of the conjecture that, had the case been foreseen. Congress would 
 have embraced it within the intent.^ Accordingly, where the law empowered 
 the Secretary of the Navy to remit or mitigate the sentence imposed by any 
 Tiaval court-martial, although the statute was plainly intended to confer upon 
 the Secretary authority over all sentences imposed by courts-martial upon 
 persons in the naval service under his jurisdiction, it was decided that he was 
 without authority to remit or mitigate the sentence imposed by an Army 
 court-martial upon an enlisted man of the Marine Corps while serving with 
 the Army but restored to naval jurisdiction prior to execution of the sentence; 
 and that action of the President in such case was necessary.' 
 
 With reference to criminal cases, it has been held that " it would be danger- 
 ous, indeed, to carry the principle that a case which is within the reason or 
 mischief of a statute is within its provisions, so far as to punish a crime not 
 enumerated in the statute because it is of equal atrocity or of kindred character 
 with those which are enumerated."* 
 
 1 U. S. V. Fahrenholt (206 U. S., 226). 
 
 2 U. S. V. Goldenburg (168 U. S., 103). 
 
 3 Bate Refrigerating Co. v. Sulzberger (157 U. S., 37). 
 
 < Folsom V. U. S. (160 U. S., 127); Hobbs v. McLean (117 U. S , 567, 579); Leavenworth, etc., R. Co. v. U. S. (92 
 U. S., 733, 751); Kennedy v. Gibson (8 Wall., 498, 506); U. S. v. Union Pac. R. Co. (91 U. S., 72, 85); 26 Op. Atty. Gen., 
 537; see also 9 Op. Atty. Gen., 50; 13 Op. Atty. Gen., 460. 
 
 6 Merritt v. Welsh (104 U. S., 702). 
 
 6 27 0p. Atty. Gen., 136. 
 
 ' File 26267—127, Nov. 10, 1914. 
 
 8 U, S. V. Wiltberger (5 Wheat., 76, 96). 
 
 13 
 
(VI, C.) INTRODUCTION. Statutory Construction. 
 
 C. HOW LEGISLATIVE INTENT IS TO BE ASCERTAINED. 
 
 As already stated, the legislative intent is to be ascertained from the law 
 itself, whore the language is clear and unambiguous. In cases where the lan- 
 guage used is ambiguous, and only in such cases, resort may be had to extrinsic 
 aids to interpretation, which will be briefly considered below, under Section 
 VI, D, "Aids to interpretation of ambiguous statutes." First as to the princi- 
 ples which govern in ascertaining the legislative intent from the law itself: 
 
 1. Law must be coiistrued as a whole. — " In the exposition of statutes 
 the esta])hshed rule is that the intention of the lawTiiaker is to be deduced from 
 a view of the whole statute, and every material part of the same." ^ "The 
 whole statute must be examined. Single sentences and smgle provisions are 
 not to be selected and construed by themselves, but the whole must be taken 
 together." ^ "Every part of a statute must be construed in connection with 
 the whole, so as to make aU the parts harmonious if possible, and to give meaning 
 to each." ^ It may be necessary to consider every par.t of an act in its effect 
 upon other parts in order to arrive at a construction that will be effective.^ 
 In case of repugnancy between two provisions in a statute, the one general 
 and the other specific, the latter will prevail, unless a contrary intent is plain.^ 
 
 2. Effect to be given to every word. — Every word used in a statute is 
 presumed to have a separate and independent meaning of its own.^ Congress 
 is not to be presumed to have used words for no purpose.'' Accordingly words 
 can not be construed as redundant and rejected as surplusage where it is pos- 
 sible to give them full effect,* but may be rejected when they can not be given 
 effect.^ And this rule requires that effect be given to every word of a penal 
 statute. ^° " It is a cardinal rule of statutory construction that significance and 
 effect shall if possible be accorded to every word." ^^ But where, from excess 
 of caution or in accordance with custom, several words of similar import have 
 been used in the same connection in a statute, as is frequently the case, it 
 is not required that some new meaning be given to the superfluous words, 
 the general rule being inapplicable under such circumstances. ^^ And it is not 
 necessary to give every word its exact signification as an independent word, 
 if that signification be inconsistent with other words and other parts of the 
 statute, the first and controlhng rule being to ascertain what the legislature 
 intended, as indicated by all the provisions on the same subject matter, har- 
 moniously construed as far as possible; and accordingly single words must 
 sometimes yield their restricted meaning to a more general signification and 
 greater comprehensiveness, if necessary to carry out the manifest wiU of the 
 lawmakuig power. ^^ 
 
 3. Words presumed to have been used in their ordinary sense. — 
 Where the language of a statute is free from ambiguity, words must be given 
 their usually accepted meaning.^^ "The popular or received miport of words 
 
 1 Kohlsaat v. Murphy (96 U. S., 153, 159). 8 Stephens v. Cherokee Nation (174 U. S., 445). 
 
 2 PoUard v. BaUey (20 Wall., 520, 525). » 21 Op. Atty. Gen., 286, 288. 
 
 3 Washington Market Co. v. Hoflman (101 U. S., 112, 115). "U.S. v. Gooding (12 Wheat^ 460, 477). 
 
 * File 111:50-26, page 5, July 31, 1909. " Washington Market Co. v. Hoffman (101 U. S., 115). 
 
 6 36 Cyc, 1130. 12 u. S. v. Bassett (2 Story, 404; 24 Fed. Cas. No. 14539). 
 
 6 Murphy v. Utter (186 U. S., 95, HI). »3 Farden v. U. S. (13 Ct. Cls., 347). 
 
 'Piatt V. Union Pac. R. Co. (99 U. S., 48, 58) i« Merchants Nat. Bank v. U. S. (42 Ct. Cls., 6). 
 
 u 
 
(VI, C.) INTRODUCTION. Statutory Construction. 
 
 furnishes the general rule for the interpretation of public laws as well as of pri- 
 vate and social transactions." ^ Wlien a statute uses a technical term which 
 is known and its meaning clearly ascertained by the common or civil law, from 
 whichever it is taken, it is proper to refer to that law for its meaning.^ The 
 term "beyond seas" in a statute must receive the legal interpretation usually 
 given to it, unless there be an indication to the contrary; ^ and the word "enlist- 
 ment, " where used in its technical significance in an act relating to the Army, 
 does not apply to a cadet, who is not an enlisted man.^ Where the legislature 
 makes use of a word having a well-defined technical meaning, it is presumed to 
 use the word in its technical sense in the absence of an indication to the contrary 
 in the statute.* The general rule is that the same word is used with the same 
 meaning wherever it occurs in an act; ^ but where necessary to harmonize the 
 different provisions of a statute, a different meaning may be given to the same 
 word in different parts of a statute.® The same words as used in different 
 statutes may have different meanmgs; but the presumption is otherwise.^ "A 
 word is not a crystal, transparent and unchanged, it is the skin of a living 
 thought and may vary greatly m color and content according to the circum- 
 stances and the time in which it is used."* 
 
 4. General words may be restricted by context. — "There is no 
 mode by which the meaning affixed to any word or sentence, by a deliberative 
 body, can be so well ascertained as by comparing it with the words and sen- 
 tences with which it stands comiected." ^ This principle is known as "noscitur 
 a sociis," which means the interpretation of a word or phrase by reference to 
 other words with which it is associated. '° 
 
 The most common application of this principle occurs where several classes 
 of persons or things are specifically enumerated in a statute, and immediately 
 following and classed with such enumeration the clause embraces ''other" 
 persons or things, as is done, for example, throughout the Articles for the 
 Government of the Navy." In such cases the particular application of this 
 principle is known as the ''ejusdem generis" rule, in accordance with which 
 the word "other" will generally be read as "other such hke," and persons and 
 things therein comprised thus restricted to the same genus or class as those 
 specifically enumerated instead of being extended to include such as are of a 
 superior or different quality or class. ^^ Thus, in an early case, it was held by 
 the Supreme Court that the words " other place" appearing in the phrase " any 
 other place or district of country, under the sole and exclusive jurisdiction of 
 the United States," did not include a vessel of the Navy, which was not of 
 similar character with the places previously enumerated which were "objects 
 
 ' Maillaxd v. Lawrence (16 How., 251, 261). 
 
 2 Irwin V. U. S. (38 Ct. Cls., 87). 
 
 3 Babbitt's case (16 Ct. Cls., 202); and see 15 Op. Atty. Gen., 645; 28 Op. Atty. Gen., 87. 
 < Ilawley v. Diller (178 U. S., 476, 488). 
 
 5 In re Jackson (40 Fed. Rep., 374); Babbitt's case (16 Ct. CIs., 212). 
 
 6 Cherokee Nation v. Georgia (5 Pet., 1, 19; compare U. S. v. St. Anthony R. Co., 192 U. S., 524). 
 ' File 9736-18, pige 2, "Addenda" ; Greenleaf v. Goodrich (101 U. S., 278, 281). 
 
 8 Towne v. Eisner, 245 U. S., 418, 425; 31 Op. Atty. Gen., 279; Lamar v. V. S., 240 U. S., 60, 65; see also Hendee v. 
 U. S., 124 U. S., 309, and U. S. v. Mouat, 124 U. S., 303. 
 
 9 Wheaton v. Peters (8 Pet., 591, 661). 
 
 10 Virginia v. Tennessee (148 U. S., 503, 519); U. S. v. Rodgers (150 U. S., 249, 278); Stoutenburgh v. Hennick (129 U.S., 
 141, 147); HoUender v. Magone (149 U. S., 586); American Fur Co. v. U. S. (2 Pet., 358, 367); 21 Op. Atty. Gen., 124. 
 
 11 Section 1624, Revised Statutes; sec C. M. O. No. 21, 1910, p. 10. 
 
 " File 24482-34, May 1, 1911, page 14; United States v. United Verde Copper Co. (196 U. S., 207); Merchants Nat. 
 Banki;. U. S. (42 Ct. Cls., 6). 
 
 15 
 
(VI, C.) INTRODUCTION. Statutory Construction. 
 
 ill their nature fixed and territorial"; and accordingly, that under the statutes 
 then in force a Federal court did not have jurisdiction to punish the crime of 
 murder committed on board a war vessel of the United States in Boston harbor.^ 
 This prmciple, like all others relating to the interpretation and construc- 
 tion of statutes, is not inflexible; its purpose is to assist in arriving at the 
 legislative intent, and where the application of the principle would fail to 
 accomplish this purpose it is rejected, and general words may be given a 
 more comprehensive effect than specific where such appears to be the mten- 
 tion of the legislature.^ 
 
 5. Interpretation of miscellaneous words. — ^The Kevised Statutes 
 contains definitions of various words which may be apphed in interpreting the 
 provisions of Federal statutes. For example, it is provided that the word 
 "person" may include partnerships and corporations; that the plural number 
 may include the singular, and vice versa; that the mascufine gender may include 
 females; that reference to any officer may include any pereon authorized by 
 law to perform the duties of such office, etc.^ 
 
 In addition, under judicial decisions the word "or" may be construed as 
 "and";* and the word "and" may be construed as "or";^ and even in a 
 penal statute, the words "fine or imprisonment" may under certam circum- 
 stances be read "fine and imprisonment." ^ But these words are not to be 
 construed otherwise than according to their ordinary and well-understood 
 meaning except where it is necessary to effectuate the plain intent of the law.' 
 
 As to the interpretation of the words "may" and "shall," see below (VI, 
 E, 5), "Mandatory and directory statutes." 
 
 6. The expression of one thing is the exclusion of another. — 
 Another rule of value in interpreting statutes is that where certain classes of 
 persons or things are specifically included or specifically excepted in a statute, 
 this is to be understood as meaning that the legislature did not intend to include 
 or except any class of persons or thmgs not specifically mentioned. The rule 
 is known in law as "expressio unius est exclusio alterius," which means that 
 "the expression of one thing is the exclusion of another." This rule is also 
 subject to the paramount consideration of effectuating the legislative intent, 
 and was accordingly not appUed in the case of the Holy Trinity Church akeady 
 noted.^ 
 
 7. A prospective operation is to be given to a statute unless the 
 legislative intent to the contrary is expressed in unambiguous terms or is clearly 
 imphed.^ Thus a statute intended, as indicated by its title, "to reorganize 
 and increase the efficiency of the personnel of the Navy," should not be con- 
 
 1 U. S. V. Bevans (3 Wheat., 336, 390) 
 
 s Cutler V. Kouns (110 U. S., 720, 728); U. S. v. Briggs (9 How., 351); Faw v. Marsteller (2 Cranch, 10); Stevens v. U. S. 
 (41 Ct. Cls. 344), noted under section 284, Revised Statutes; see also 30 Op. Atty. Gen., 294, 295, and authorities there cited. 
 
 • See sections 1 to 6, Revised Statutes. 
 
 < Union Ins. Co. v. U. S. (6 Wall., 763); Converse v. U. S. (26 Ct. Cls., 6). 
 
 6 18 Op. Atty. Gen., 540; Long v. Palmer (16 Pet., 69). 
 
 'Carter v. McClaughry (183 U. S., 392, 393); see also U. S. v. Shawls (2 Paine 166, 28 Fed. Cas. No. 16448); Rioe v. 
 U.S. (53 Fed. Rep., 912). 
 
 ' U. S. V. Haun (26 Fed. Cas. No. 15329); 18 Op. Atty. Gen., 540; Rice v. U. S. (53 Fed. Rep., 912). 
 
 8 See above, section VI, B, 6. 
 
 « Jasper v. U. S. (43 Ct. Cls., 368, 371, citing U. S. v. Heth, 3 Cranch, 399, 413; Chew Heong v. U. S., 112 U. S., 536, 559; 
 White w. U. S., 191 U. S., 545; see also Reynolds v. McArthur, 2 Pet.434; 19 Comp. Dec, 487; U. S. v. Burr., 159 U. S., 82, 
 Warren v. Etna Ins. Co., 29 Fed. Cas. No. 17206; Auffm'ordtv. Rasin,102U.S.,622; 15 Op. Atty. Gen., 222, 259; 9 Op. Atty. 
 Gem., 437). 
 
 16 
 
statutory Construction. INTRODUCTION. (VI, D.) 
 
 strued so as to give a gratuity to certain officers for past services.' "Even 
 though the words of a statute are broad enough in their literal extent to com- 
 prehend existing cases, they must yet be construed as applicable only to cases 
 that may hereafter arise, unless the language employed expresses a contrary 
 intention in unequivocal terms. "^ 
 
 8. Controlling purpose of statute prevails in its construction. — 
 A secondary purpose, which from the nature of things would defeat the con- 
 trolUng purpose of a statute, will not be ascribed to Congress, especially when 
 it rests on mere implication.^ The specific intent of the legislature is to be 
 found in the leading provisions of a statute.^ Where the principal purpose 
 of a statute is to provide compensation to a person damaged by the wrongful 
 act of another, and not to punish the wrongdoer, it is not to be construed as 
 penal.^ Similarly, where a statute was intended primarily to increase the 
 efficiency of the Navy, and incidentally to rid the service of officers unable to 
 qualify for promotion because of their own misconduct by providing that such 
 officers should be discharged with not more than one year's pay, the controlling 
 purpose of the law should not be defeated by giving it a strict construction 
 against the Government and in favor of a particular officer.^ 
 
 D. AIDS TO INTERPRETATION OF AMBIGUOUS STATUTES. 
 
 Where the language of a statute is ambiguous or susceptible of two mean- 
 ings, certain established rules may be availed of in endeavoring to arrive at 
 the legislative intent. But m connection with the application of all such rules 
 it must be borne in mind that their purpose is to solve real and not fanciful 
 ambiguities, and that they may not be invoked as a means of escape from the 
 plain language of a statute or for the purpose of raising a doubt where none 
 in fact exists. 
 
 1. The title of a statute, although not properly a part of the law, may 
 be resorted to in case of doubt as a source of information in interpreting lan- 
 guage used in the act. Thus the word "mihtary" in a broad sense may refer 
 both to the land and naval forces; but where a statute provided for the arrest 
 of deserters from the military service, the Attorney General held that it could 
 not be construed to include deserters from the Navy, because the title of the 
 act showed plainly that the law was intended to apply only to the Army, and 
 hence that the word "military" was used in its more restricted sense.' Simi- 
 larly the title of the Navy personnel act of March 3, 1899, was referred to by 
 the courts as indicating that certain provisions contained in the act were 
 intended to operate prospectively only and not to give a gratuity to certain 
 officers for past services.^ But where the language of an act is plain, it may 
 be applied to cases not comprehended by its title; as, for example, an act 
 
 1 White's case (37 Ct. Cls., 365; 191 U. S., 545; see also 17 Op. Atty. Gen., 557); U. S. v. Moore (95 U. S., 762). 
 
 2 Twenty Per Cent cases (20 Wall., 179, 187); see also file 8627-189, May 12, 1915; but see 7 Comp. Dec, 844, noted 
 under section 1407, Revised Statutes. 
 
 » Denver Pac. R. Co. v. U. S. (12 Ct. Cls., 237, 259, 681). 
 
 < The Paquete Habana (175 U. S., 677, 681). 
 
 s Brady v. Daly (175 U. S., 148); Johnson v. Southern Pac. Co. (196 U. S., 1). 
 
 » See note to act Aug. 5, 1882, 22 Stat., 286; file 26260—1392, June 29, 1911; see also Street v. U. S. (133 U. S., 300). 
 
 ' File 5621, Nov. 17, 1906. [The arrest of deserters from the naval service is now specifically provided for by act 
 Feb. 16, 1909, sec. 15, 35 Stat., 622.] As to interpretation of the word "military," see file 26509-201:1, May 26, 1917; 24 
 Comp. Dec, 788. 
 
 8 White's case (37 Ct. Cls., 365, affirmed, 191 U. S., 550); see also Holy Trinity Churcli v. U. S. (143 U. S., 467); Robinson 
 V. U. S. (42 ct. Cls., 52); 19 Op. Atty. Gen. ,616. 
 
 IT 
 
(VI, D.) INTROD UCTION. Statutory Construction. 
 
 wliich by its title applied to "American seamen," but which was nevertheless 
 held to extend to fi)reio;nei"s.' And even when the meaning of a statute is 
 doubtful it has been said that tlie title lias little weight in its construction. ^ 
 
 2. Marginal notes in Revised Statutes. — As already explained, 
 marginal notes are incorporated in the Revised Statutes in accordance with 
 instructions of Congress, indicating the laws from which the different sections 
 of the revision were compiled. It has been held that, in case of ambiguity in 
 the language of the revision, these notes may be consulted as an aid to con- 
 struction, and that resort may be had to the original statutes to which they 
 refer.' 
 
 3. Conditions existing at the time the law was enacted. — In cases 
 of doubtful construction it is safe guidance for a court to look into the con- 
 ditions surrounding the subject matter of the legislation at the time the act 
 was passed and the situation as it existed and as it was pressed upon the atten- 
 tion of Congress.* The court should endeavor to place itself as far as possible 
 in the light that the legislature enjoyed, to look at things as they appeared to 
 it, and to discover the purpose of the law from the language used in connection 
 with attending circumstances. ^ "The general rule is that laws speak from the 
 date of their enactment," ® and they should accordingly be construed as of 
 the time of their enactment.'^ Thus where Congress authorized the appoint- 
 ment, from the Navy Dental Reserve Corps, of "dental corps officers of per- 
 manent tenure," the language quoted was construed to mean that such appoint- 
 ments were to be made to the grade of acting assistant dental surgeon, which 
 was the only grade in the regular Dental Corps at the time the law was passed, 
 as the grade of assistant dental surgeon was not to come into existence until 
 more than two years later. ^ 
 
 4. Reasons for the enactment of the law. — The evil or mischief 
 which the law was designed to remedy is also a proper subject for consideration 
 in arriving at the legislative intent in case of doubtful language.^ It is one of 
 the oldest and best recognized principles of construction that "the preexisting 
 law and the reason and purpose of the new enactment are considerations of 
 great weight." *" ''There is no better way of discovering its true meaning when 
 expressions in it are rendered ambiguous by their connection with other clauses 
 than by considering the necessity for it and the causes which induced its enact- 
 ment." " 
 
 5. Legislative history. — In arriving at the meaning of a statute where 
 the proper construction is doubtful, it is always proper to consider the history 
 of the statute and the different steps taken in the enactment of the law as dis- 
 
 1 Patterson v. Bark Eudora (190 U. S., 169, 172, 173). 
 
 » Hadden ti.The Collector (5 WaU., 107). 
 
 » Barrett v. U. S. (169 U.S., 218,227, 22S); U. S. v. AverUl (130 U. S.,335, 338); U. S. v. Lacher (134 U. S.,626, 627); U. S. 
 V. Hirsch (100 U. S., 33); Hamilton v. Rathbone (175 U. S., 414, 420); Merchants Nat. Bank v. U. S. (42 Ct. Cls., 6); see 
 also VI, E, 1, "Revised Statutes," below. 
 
 < Clark's case (37 Ct. Cls., 60); U. S. v. Smith (197 U. S., 386); Holy Trinity Church v. U. S. (143 U. S., 457). 
 
 5 File 26260-1392, June 29, 1911, p. 5; 27 Op. Atty. Gen., 78; Piatt v. Union Pac. R.Co. (99 U. S., 48,63); Dewey v. 
 U.S. (178 U.S., 510, 520); HamQton v. Rathbone (175 U. S., 414); Holy Trinity Church v. U. S. (143 U. S., 457). 
 
 «25 Op. Atty. Gen., 299; file 13707—38:9. 
 
 ' Irwin V. U. S. (38 Ct. Cls., 87). 
 
 8 File 13707-38: 9. 
 
 9 Holy Trinity Church v. U. S. (143 U. S.,457); Wilson v. Mason (58 Fed. Rep., 768); 29 Op. Atty. Gen.,344; 19 Comp» 
 Dec., 847; file 20200-1392, June 29, 1911; C. M. O., 4-1913, pp. 6, 8. 
 
 10 27 Op. Atty. Gen., 78; Hamilton w. Rathbone (175 U. S.,419); Merchants Nat. Bank u. U.S. (42 Ct. Ois., 6). 
 » Heydenfeldt v. Daney, etc., Co. (93 U. S., 634, 638). 
 
 18 
 
statutory Construction. INTRODUCTION. (VI, D.) 
 
 closed by the legislative records.^ This includes the reports of committees ^ 
 and the introduction of amendments ; ^ but the opinion of the draftsman of the 
 law can not be considered/ except as it indicates the existing conditions and 
 purpose of the law as it was pressed upon the attention of Congress. ^ 
 
 6. Debates in Congress. — The views expressed by individual Members 
 of Congress in the course of debates "are not appropriate sources of informa- 
 tion from which to discover the meaning of the language of a statute passed by 
 that body " ; ^ the law as it passed being the will of the majority of both Houses.^ 
 "It is impossible to determine with certainty what construction was put upon 
 an act by the members of a legislative body that passed it by resorting to the 
 speeches of individual members thereof. Those who did not speak may not 
 have agreed with those who did, and those who spoke might differ from each 
 other." ^ Frequently the arguments of individual members can hardly be con- 
 sidered even as the dehberate views of the persons who made them ; ^ ' ' nor have 
 there been want ing illustrious instances of great minds which, after they had, 
 as legislator or commentators, reposed upon a short and hasty opinion, have 
 deliberately withdrawn from their first impressions when they came upon the 
 judgment seat to reexamine the statute or law in its full bearings." ^° 
 
 But it has been held that ' ' the statements of those who had charge of the 
 law, made to the legislative body passing it, as to its meaning and purpose, are 
 always competent." " And debates may be referred to for information as to 
 the existmg conditions and the evil or mischief which the law was intended to 
 remedy,^^ or to confirm a construction otherwise arrived at by the court.*^ 
 
 7. Prior enactments on the same subject may be consulted in cases 
 of doubt in an effort to ascertain the legislative intent. Wliere the subject 
 of a prior act is identical with, and not merely similar to, the law mider consid- 
 eration, the two acts are said to be ''in pari materia" " and should be con- 
 strued together unless the language of the act to be construed is plain and free 
 of all uncertainty.^^ 
 
 Several statutes on the same general subject, passed at different times 
 by successive legislatures, without express repeal of former provisions, should 
 be so construed that all parts of each shall retain their force and effect, except 
 where it is apparent that by the later acts substantial changes were intended. 
 
 1 U. S. V. Burr (159 U. S., 78, 85); Blake v. Banks (23 Wall., 307); but see Andrews v. Hovey (124 U. S., 716). 
 
 2 Austin V. U. S. (25 Ct. Cls., 454); Holy Trinity Church v. U. S. (143 U. S., 457, 464); Bate Refrigerating Co. v. Sulz- 
 berger (157 U. S., 1, 42); Chesapeake, etc., Tel. Co. v. Manning (186 U. S., 238, 246); Binns v. U. S. (194 U. S., 486, 495); 
 Dubuque, etc., R. Co. v. Litchfield (23 How., 87). 
 
 3 27 Op. Atty. Gen., 437; file 26260-1392, June 29, 1911; Blake v. National Banks (23 Wall., 307). 
 < File 24482-34, May 1, 1911. 
 
 6 19 Comp. Dec, 847; Jennison v. Kirk (98 U. S., 460). 
 
 6U. S. V. Freight Assn. (166 U. S., 318); 27 Op. Atty. Gen., 78; 9 Op. Atty. Gen., 472; compare 9 Op. Atty. Gen., 
 438 ; 8 Op. Atty. Gen., 230. 
 
 ' Aldridge v. Williams (3 How., 23). 
 
 8 U. S. V. Trans-Missouri Freight Assn. (166 U. S., 290, 318). 
 
 9 Downes v. Bidwell (1S2 U. S., 244, 254). 
 
 10 Mitchell v. Great Works Milling, etc., Co. (2 Story, 653: 17 Fed. Cas. No. 9662). 
 
 " Ex parte Farley (40 Fed. Rep., 69); 27 Op. Atty. Gen., 78; 26 Op. Atty. Gen., 254. 
 
 12 Holy Trinity Church v. U. S. (143 U. S., 465); American Net & Twine Co. v. Worthington (141 U. S., 473); U. S. 
 V. Wilson (58 Fed. Rep., 768). 
 
 13 Hepburn v. Griswold (8 Wall., 610); Untermeycr v. Frcund, (50 Fed. Rep., 80); Northern Pac. R. Co. v. U. S. 
 (36 Fed. Rep., 285); U. S. t). Union Pac. R. Co., (37 Fed. Rep., 554); In re Secy, of Treasury (71 Fed. Rep., 513;) In 
 re Musser (49 Fed. Rep., 832); Wilson v. Spaulding (19 Fed. Rep., 307); Walton v. U. S. (24 Ct. Cls., 380); 16 Op. Atty. 
 Gen., 379. 
 
 " Louisiana v. Mississippi (202 U. S., 1, 41); United Soe. ti. Eagle Bank (7 Conn., 456, 469); see also U. S. v. Freeman 
 (3 How., 556). 
 
 15 Barnes v. PhUadelphia, etc., R. Co. (17 Wall., 302). 
 
 19 
 
statutory Construction. INTRODUCTION. (VI, D.) 
 
 Incidental clijuiges will not be imputed unless clearly intended by the legisla- 
 tors and within the scope of the particidar matters considered by them. Wliat 
 is to be determined is the will of the legislature, and that will as expressed in 
 the latest enactment is paramount; but on all matters in which the will of the 
 latest legislature has not been clearly manifested, that of all former legislatures 
 must stand.' 
 
 Prior enactments on the same subject may be consulted in order to ascer- 
 tam the legislative intent, even though such prior acts have been repealed,^ 
 
 8. Implied repeals never favored. — "It is a fundamental and familiar 
 rule that a repeal by implication is never held to take place unless there is an 
 irreconcilable repugnancy between the earher and later acts, and that if, by 
 any permissible construction, both may stand and be enforced, there is no 
 such repeal." ^ Every doubt should be resolved agauist a construction wliich 
 would work an unplied repeal, and it is not to be admitted unless the imphca- 
 tion is so clear as to be equivalent to an explicit declaration.^ "It nmst not 
 be supposed that the legislature intended by a later statute to repeal a prior 
 one on the same subject, unless the last statute is so broad in its terms and so 
 clear and explicit m its words as to show that it was intended to cover the whole 
 subject, and, therefore, to displace the prior statute;"^ or "unless its provisions 
 are so clearly repugnant as to imply a negative." * "Statutes which apparently 
 conflict with each other are to be reconciled, as far as may be on any fair hy- 
 pothesis;" ' " if both can exist, the repeal by implication wiU not be adjudged. " * 
 
 "The general presumption is that if a repeal was mtended it would have 
 been expressly declared; and such is the usual practice of legislation." ® 
 
 Where two acts are in apparent conflict, and one of the acts is general and 
 the other special, the rule is that the special act wiU be construed as an excep- 
 tion to the provisions of the general, and both acts thus given effect even 
 though the special act be earher in date.^" 
 
 9. Statutes not operative against the Government. — It is "the 
 settled rule of construction that the sovereign authority of the country is not 
 bound by the words of a statute, unless named therein, if the statute tends to 
 restrain or diminish the powers, rights, or interests of the sovereign;" " "unless 
 its language requires that such meaning shall be given to it." ^^ Thus a statute 
 prohibiting the transportation of merchandise from one port in the United 
 States to another port in the United States in foreign vessels was held not to 
 apply to the transportation of coal belonging to the Goveriunent and needed 
 
 » Wilcox 0. U. S. (12 Ct. Cla., 495, 502); Mills v. Scott (99 U. S., 25, 28); file 13707-38:9. 
 
 2 Bank v. Collector (3 Wall., 495, 513); Ex parte Crow Dog (109 U. S., 556, 561); InreHohorst (150 U. S., 653, 660); 
 Knowlton v. Moore(178 U. S., 41). 
 
 » 29 Op. Atty. Gen., 110; see also 24 Op. Atty. Gen., 562; 25 Op. Atty. Gen., 113; 23 Op. Atty. Gen., 411. 
 
 < Osborn v. Nicholson (13 Wall., 654, 662). 
 
 • Frost V. Wenie (157 U. S., 46, 58). 
 
 « Welch V. Cook (97 U. S., 541, 543); U. S. v. Gillis (95 U. S., 407, 416). 
 
 ' Deals V. Hale (4 How., 37, 51); and see 15 Op. Atty. Gen., 639, where it is said that tliis rule must be applied so as to 
 prevent any unnecessary disturbance of regulations by subsequent statutes. 
 
 8 Johnson u. Browne (205 U.S., 309, 321); compare Eckloff ». D. C. (135 U. S., 242); file 13707-36, Sept. 30, 1913. But, 
 " to so legislate as to prevent the application of previous legislation is to repeal the previous legislation by implication " 
 (22 Op. Atty. Gen., 255, 257; compare 32 Op. Atty. Gen. 476). 
 
 » U. S. V. Cloths (Crabbe, 370, 28 Fed. Cas. No. 16563); 9 Op. Atty. Gen., 47. 
 
 »»36 Cyc, 1151; Rodgers «;. U. S. (185 U. S., 83); Petri v. Creelman Lumber Co. (199 U. S., 497); U. S. v. Nix (189 
 U. S.,205). 
 
 11 U. S. V. Herron (20 Wall., 251, 255); see also U. S. v. Knight (14 Pet., 301); 26 Op. Atty. Gen., 415; see also Cook 
 County Nat. Bank v. U. S. (107 U. S., 451). 
 i'26 0p. Atty. Gen., 417. 
 
 20 
 
statutory Construction. INTRODUCTION. (VI, D.) 
 
 for the use of the Navy.^ But a tariff act requiring the payment of duty on 
 imports was held to apply to the importation of coal by the Government for 
 the use of the Navy, notwithstanding that the payment of duty by the Govern- 
 ment to itself would amount in effect merely to a bookkeeping transaction; the 
 practice of Congress having been to except the Government specifically from the 
 operation of tariff laws, where such was the intention, and the policy of the law 
 being to encourage American industries.^ 
 
 "Where the Government is not expressly or by necessary implication 
 included, it ought to be clear from the nature of the mischiefs to be redressed, 
 or the language used, that the Government itseK was in contemplation of the 
 legislature before a court of law would be authorized to put such an inter- 
 pretation upon any statute."^ 
 
 10. Objectionable results to be avoided. — The rule is that an act of 
 Congress must be construed as within the powers conferred upon Congress 
 unless in the judgment of the court it is plainly and palpably inconsistent with 
 the Constitution.* 
 
 Also, where the language used is susceptible of two meanings, it should be 
 so interpreted as to avoid absurd results, inconvenience, injustice, um-eason- 
 ableness, or hardship. But it is only in the case of doubt that such considerations 
 may be taken into account.^ 
 
 "All laws which derogate from the constitutional authority of the exe- 
 cutive or judiciary, and all laws giving special or unusual powers to indivi- 
 duals, must be construed strictly and according to the narrowest sense of their 
 words. No intention must in such cases be imputed to the lawgiver beyond 
 what is clearly expressed in terms too plain to be misunderstood."^ 
 
 11. Construction adopted by Congress.— Congress is presumed to 
 have known what construction has been placed upon language used by it in 
 a statute, and when the same language is used again, in a subsequent statute 
 on the same subject, without any indication of a contrary intent, it should be 
 given the same construction as it received in the former act.'' This rule applies 
 to language which has been construed in decisions of the Supreme Court and 
 Court of Claims,* and also to the construction placed upon a law in practice 
 by the proper administrative officers,^ unless the circumstances are such that 
 Congress could not be presumed to have knowledge of the departmental con- 
 struction.^" 
 
 12. Contemporaneous construction by executive departments. — 
 The contemporaneous construction placed upon a law by the officers charged 
 with its administration, where uniform and long continued, will be given great 
 weight by the courts in passing upon a statute so construed, and in case of 
 
 1 2G Op. Atty. Gen., 415. 
 
 2 26 Op. Atty. Gen., 466. 
 
 3 U. S. V. Hoar (2 Mason, 314; 26 Fed. Gas. No. 15373); 16 Comp Dec, 696. 
 
 < Boske V. Comingore (177 U. S., 459); see also Butler v. White (83 Fed. Rep., 581); U. S. v. Mackenzie (30 Fed. Gas. 
 No. 18313). 
 
 '■> See above, Section VI, B, 5. 
 
 6 9 Op. Atty. Gen., 472. 
 
 ' Sewing Machine Co.'s case (18 Wall., 553, 584). 
 
 8 U. S. V. GiUis (95 U. S., 416); File 26254-50, July 1, 1908; 25 Op. Atty. Gen., 309; but see 15 Comp. Dec., 47. 
 
 9 21 Op. Atty. Gen., 410; 21 Op. Atty. Gen., 3.39; 21 Op. Atty. Gen., 352; 15 Op. Atty. Gen., 646; 28 Op. Atty. Gen., 87; 
 Valk V. U. S. (28 Ct. Cls., 241); Jonas v. V. S. (50 Ct. Cls. , 281); U. S. v. Hermanos (209 U. S., 337); U. S. v. Talk (204 U. S., 
 143); Op. Atty. Gen., Apr. U, 1918, file 26510-1022:12; Schuetze v. U. S. (24 Ct. Cls., 299); 29 Op. Atty. Gen., 436; 17 
 Op. Atty. Gen., 60; 20 Op. Atty. Gen., 433. 
 
 " Dollar Sav. Bank v. U. S. (19 WaO., 237). 
 
 21 
 
(VI, E.) INTRODUCTION. Statutory Construction. 
 
 (louhl. will 1)0 controlliiin;.' KspecirtUv will the courts look witii disfavor upon 
 any sudtlcn ohuufjjo whoroby parties who have contracted with the Govern- 
 ment upon the faith of such construction may be prejudiced.- Where such 
 construction of tlie law has received the tacit if not express approval of Con- 
 gress, the court, will not feel at liberty to disregard it although the correctness 
 of such construction "may well be doubted."^ However, "while contempora- 
 neous and long-continued departmental construcHon of an ambiguous statute 
 is entitled to very groat weight, it is quite otherwise where the statute is clear 
 and there is no need for the assistance doi-ivod from that source."* 
 
 E. CONSTRUCTION OF PARTICULAR STATUTES. 
 
 1. Revised statutes. — "A change of language in a revised statute '^ will 
 not change the law from what it was before, unless it be apparent that such 
 was the intention of the legislature."** "The reenacted sections are to be given 
 the same meaning they had in the original statute unless a contrary intention 
 is plainly manifested." ' ' ' Upon a revision of statutes, a different interpretation 
 is not to be given, to them without some substantial change of phraseology — 
 some change other than what may have been necessary to abbreviate the form 
 of the law."^ But "where the language of the Revised Statutes is plain and 
 unambiguous, the granmiatical structure simple and accurate, and the meaning 
 of the whole intelligible and obvious, a court is not at liberty by construction 
 to reproduce the law as it stood before the revision. Whatever palpable modifi- 
 cations, alterations, or changes of preexisting laws may be found in the Revised 
 Statutes are as much in force as any of these provisions." ® 
 
 2. Appropriation acts. — The general rule of law is that when Congress 
 makes a specific appropriation for any particular purpose, no more shall be 
 expended lor that purpose than is thus appropriated; and if a general appro- 
 priation applicable to the same purpose would otherwise be available to meet 
 the same expenditure, the specific appropriation operates to repeal in part or 
 supersede the general appropriation and render its use for the specific purpose 
 illegal.^" 
 
 The rule that a specific appropriation is exclusive, and that another general 
 appropriation is not available for the same purpose, is a rule of administration 
 
 > Brown v. V. S. (n3 V. S., 568, 571); U. S. v. Moore (95 U. S., 760); U. S. v. Johnston (124 U. S., 236); Heath v. Wal- 
 lace (138 U. S., 582); 8 Op. Atty. Gen., 198; U, S. v. Finnel (185 U. S., 236); Merchants Nat. Bank v. U. S. (42Ct. Cls.,6), 
 Plummer v. U. S. (224 U. S., 137). " It is not so important that the construction of a statute as doubtful as this be 
 exactly what Congress intended, as that a construction, acted on for 20 years, should be upheld" (20 Op. Atty. Gen., 
 362). "When an act of Congress has, by actual decision or by continued usage and practice, received a eonstmction at 
 the proper department and that construction has been acted on for a succession of years, it must be a strong and pal- 
 pable case of error and injustice that would justify a change in the interprclation to be given to it " (2 Op. Atty. Gen.; 
 558). ''The ollicers concerned are usually alile men and masters of the subject. Not unfrequently they are the drafts- 
 men of the laws they arc afterwards called upon to interpret" (U. S. v. Moore, 96 U. S., 763). Schell's Exs. v. Fauche 
 (138 U. S., 572); 20 Op. Atty. Gen., 436; 10 Op. Atty. Gen., 296; compare 17 Op. Atty. Gen., 119. 
 
 2 U. S. V. Ala. R. Co. (142 U. S., 621); see also 20 Comp. Dec., 182; Comp. Digest, pp. 295, 296; Thurber v. U. S. (40 
 Ct. Cls., 489); Nelson v. U. S. (41 Ct. Cls., 163); I'lummer v. V. S. (224 V. S., 137, 140, 143). 
 
 3 Garlinger v. U. S. (30 Ct. Cls., 477). For further citation of cases see 11 Enc. U. S. Rep., 138-143; and see 1 Fed Stat. 
 Ann. (2d ed.), 78-84; 20 Op. Atty. Gen., 436. 
 
 < 29 Op. Atty. Gen., 298. 
 
 '•> This refers to any statute which has been revised by a subsequent enactment, and is not limited to " The Revised 
 Statutes of the United States." 
 
 • Stewart v. Kahn (11 Wall., 493, 502). 
 
 ' U. S. V. Le Bris (121 U. S., 278, 280); see also "Marginal notes in Revised Statutes," sec. VI, D, 2, above. 
 8 McDonald v. Ilovey (110 U. S., 619, 629). 
 » Bowen v. U. S. (14 Ct. Cls., 162; 100 U. S., 508). 
 10 27 Op. Atty. Gen., 30, 34. 
 
 22 
 
statutory Construction. INTRODUCTION. (VI, E.) 
 
 firmly established by the accountmg branch of the Government ; but there is 
 no such statutory limitation on the use of appropriations. While this rule is 
 a proper one, it may be remarked of it, first, that it operates within a narrow 
 range; second, that the Comptroller recognizes that two appropriations may 
 sometimes be available — ''cumulative" appropriations, as they are called — 
 and, finally, that the Comptroller has noticed certain reasonable limits to the 
 appUcability of the general rule m order to accomplish the evident purpose of 
 Congress. ^ 
 
 No clause, phrase, or section of an appropriation act ought to be construed 
 as permanent legislation unless such words are used therein as make that pur- 
 pose clear.2 "Annually," "hereafter," and similar words in an appropriation 
 act indicate permanent legislation.^ Permanent legislation contained in an 
 appropriation act becomes effective, where not otherwise specified, imme- 
 diately upon approval of the act.^ 
 
 3. Penal laws. — The general rule is that penal statutes are to be strictly 
 construed, which means in effect that the language is not to be extended so as 
 to include persons or things not -clearly withm its terms.^ But in construing 
 penal laws as all others the whole purpose is to effectuate the legislative intent 
 if possible; and therefore it is settled that the rule of strict construction does 
 not require that the purpose be ignored or defeated; it merely means that 
 cases must not be brought withm the provisions of the statute that are not 
 clearly embraced by it. On the other hand, a narrow, technical, or forced 
 construction of words is not to be adopted so as to exclude cases that are 
 obviously witliin its provisions.* The words of a penal statute are to be given 
 their fuU meaning; ^ and effect is to be given to every word used if it can be 
 done without violating the obvious intention of the legislature.^ 
 
 "While we are bound to give the person accused the benefit of every 
 statutory provision, we are not bound to import words into the statute which 
 are not found there." ^ "In expounding a penal statute the court wiU not 
 extend it beyond the plain meaning of its words," ^° but the rule of strict con- 
 struction is not violated by giving to words the more extended of two meanings 
 where such construction best harmonizes with the context and most fully pro- 
 motes the pohcy and objects of the legislation." 
 
 1 26 Op. Atty. Gen., 81, citing 3 Comp. Dec., 71; 6 Comp. Dec., 124; 7 Comp. Dec., 665; 9 Comp. Dec., 259; 10 Comp. 
 Dec., 655; 12 Comp. Dec, 61; 7 Comp. Dec, 142; 4 Comp. Dec, 121; 1 Comp. Dec, 357; 2 Comp. Dec, 59; 8 Comp. Dec, 
 685; 10 Comp. Dec, 832. 
 
 2 27 Op. Atty. Gen., 108; but see 7 Op. Atty. Gen., 306. Vulte's Case (47 Ct. Cls., 324, 327; 233 U. S., 509, 514); file 
 24501-26, July 11, 1911. 
 
 3 U. S. V. Jarvis (26 Fed. Cas. No. 15468); Comp. Dec. May 28, 1908 (87 S. and A. Memo. ,716). 
 
 « 7 Op. Atty. Gen., 306; Comp. Dec, May 28, 1908 (87 S. and A. Memo., 716); Chance v. U. S. (38 Ct. Cls., 75); see 
 also Arnold v. U S. (9 Cranch, 104, 119); 14 Op. Atty. Gen., 542; 14 Op. Atty. Gen., 681; 10 Comp. Dec, 281; 12 Comp. 
 Dec, 306; 13 Comp. Dec, 429; 14 Comp. Dec, 607; U. S. v. Ewing (140 U. S., 143); file 28500-54, March 5, 1915; file 
 26254-1729, Mar. 6, 1915; file 26254-1729: 1, Ckimp. Dec, Mar. 10, 1915; file 5942-192, Mar. 12, 1915; and see 30 Op. 
 Atty. Gen., 334; 22 Comp. Dec, 640; 5 Comp. Dec, 782; file 5460-70, Mar. 22, 1915; 26253-364: 1, Mar. 23, 1915; 27 Op. 
 Atty. Gen., 552; file 9644-55, Mar. 22, 1919. 
 
 '- U. S. V. Lacher (134 U. S., 624). 
 
 6 Northern Securities Co. v. U. S. (193 U. S., 197, 358); U. S. v. Wfltberger (5 Wheat., 76); U. S. v. Palmer (3 Wheat., 610, 
 629); The Emily (9 Wheat., 381, 388). 
 
 ' U. S. V. Hartwell (6 Wall., 385, 386). 
 
 8 U. S. V. Gooding (12 Wheat., 4G0, 477); see file 26260-1392, June 29, 1911. 
 
 9 Grin v. Shine (187 U. S., 181, 186). 
 
 "> U. S. V. Morris (14 Pet., 464, 475); Northern Securities Co. v. U. S. (193 U. S., 197, 358); U. S. v. Wiltberger, (5 
 Wheat., 76, 95). 
 
 11 U. S. ». Hartwell (6 WaU., 385); U. S. v. Winn (3 Sumn., 209, 28 Fed. Cas. No. 16740). 
 
 23 
 
(VI, E.) INTRODUCTION. Statutory Construction. 
 
 4. Remedial statutes are to l)c liherally construod so as to accomplish 
 the beueficial })iirpose of the legislature to the fullest extent consistent with 
 the language of the law; ' but a statute is not to be so hberally construed as 
 to violate its language.^ 
 
 5. Mandatory and directory statutes. — The cjuestion whether or not 
 a statute is mandatory or directory depends upon the intention of the legisla- 
 ture, to be ascertained from a consideration of the entire act, its nature, its 
 object, and the consequences that would result from construing it one way or 
 the other.^ 
 
 "It is well settled that 'may,' in any statute, is to be construed as equivalent 
 to 'shall' or 'must' when the public interests or rights are concerned and when 
 the public or third persons have a right de jure [in law] to claim that the power 
 granted shall be exercised." * 
 
 ''The general rule is that, where Congress confers a power upon an executive 
 officer which involves the rights or interests of private individuals or the general 
 pubhc, the language used by Congress is to be considered as imposing a duty 
 rather than a discretion." * 
 
 Thus, a statute providing that the Secretary of the Navy "is hereby author- 
 ized" to furnish a clothing bounty to apprentices on enlistment in the Navy is 
 mandator}'. Wliilc the ordinary meaning of this language is generally per- 
 missive, nevertheless in this case, the object of the statute being to encourage 
 enUstments, it "is to be construed as imposing upon the Secretary of the Navy 
 an imperative obligation and not merely discretionary power." * 
 
 "Shall" will be construed as "may" where no public or private right is 
 impaired by such construction; but where the public are interested, or where 
 the pubhc or third persons have a legal claim that the act shall be done, it is 
 imperative and wi'l be construed to mean "must." For example, section 
 1498, Revised Statutes, providing that naval examining boards "shall consist 
 of not less than three officers senior in rank to the officer to be examined," 
 was evidently framed as a protection to officers generally, and is therefore 
 construed as mandatory; hence the proceedings of a board are fatally defective 
 where one of the members was junior to the candidate.^ 
 
 "The rule of construction of statutory provisions regulating the time, 
 form, and mode of proceeding by courts and public officers is that they are 
 generally to be deemed directory and as intended merely to secure system, 
 uniformity, and dispatch in the conduct of public business. 'Provisions of 
 this character are not usually regarded as mandatory unless accompanied by 
 negative words, importing that the acts required shall not be done in any 
 other manner or time than designated.'" * 
 
 1 Jones V. Guaranty, etc., Co. (101 U. S., 622, 626); Beley v. Naphtaly (169 V. S., 353, 359, 360); Ramsey v. Tacoma Land 
 Co. (196 U. S., 360, 362); 20 Comp. Dec., 380. 
 
 2 U. S. p. St. Anthony R. Co. (192 U. S., 524, 540). 
 
 3 File 262CO-1244, April 14, 1911; see also 8 Op. Atty. Gen., 112. 
 « 25 Op. Atty. Gen., 270; file- 26539-551. 
 
 » File 26260-1244, AprU 14, 1911; see also 8 Op. Atty. Gen., 112. 
 
 « In re Stein, 105 Fed. Rep., 749, 750, quoting French v. Edwards (13 Wall., 506-511); see also Indianapolis, etc., R. Co. 
 V. Horst (93 U. S., 301); AVest Wisconsin R. Co. v. Foley (94 U. S., 100); Labadio v. U. S. (31 Ct. Cls., 436); Woolridgey. 
 McKenna (8 Fed. Rep., 650); Thomas's Motion (15 Ct. Cls., 335). 
 
 24 
 
PART 1. 
 
 THE CONSTITUTION OF THE UNITED STATES 
 
 OF AMERICA. 
 
 25 
 
HISTORICAL NOTE. 
 
 [Compiled principally from notes to Constitution in Revised Statutes of the United States, second edition, and S. Doc. 
 
 No. 427, 66th Cong., 3d sess.j 
 
 The origfinal Constitution. — In May, 
 1785, a committee of Congress made a report 
 recommending an alteration in the Articles of 
 Confederation, but no action was taken on it, 
 and it was left to the State Legislatures to pro- 
 ceed in the matter. In January, 1786, the Leg- 
 islature of Virginia passed a resolution pro\dd- 
 ing for the appointment of five commissioners, 
 who, or any three of them, should meet such 
 commissioners as might be appointed in the 
 other States of the Union, at a time and place 
 to be agreed upon, to take into consideration 
 the trade of the United States; to consider how 
 far a uniform system in their commercial regu- 
 lations may be necessary to their common in- 
 terest and their permanent harmony; and to 
 report to the several States such an act, relative 
 to this great object, as, when ratified by them, 
 will enable the United States in Congress 
 effectually to provide for the same. The Vir- 
 ginia commissioners, after some correspondence, 
 fixed the first Monday in September as the time, 
 and the city of Annapolis as the place for the 
 meeting, but only four other States were repre- 
 sented, viz: Delaware, New York, New Jersey, 
 and Pennsylvania; the commissioners ap- 
 pointed by Massachusetts, New Hampshire, 
 North Carolina, and Rhode Island failed to 
 attend. Under the circumstances of so partial 
 a representation, the commissioners present 
 agreed upon a report (drawn by Mr. Hamilton, 
 of New York), expressing their unanimous con- 
 viction that it might essentially tend to ad- 
 vance the interests of the Union if the States by 
 which they were respectively delegated would 
 concur, and use their endeavors to procure 
 the concurrence of the other States, in the 
 appointment of commissioners to meet at Phila- 
 delphia on the second Monday of May following, 
 to take into consideration the situation of the 
 LTnited States; to devise such fmther pro\'isions 
 as should appear to them necessary to render 
 the Constitution of the Federal Government 
 adequate to the exigencies of the LTnion; and 
 to report such an act for that pm-pose to the 
 United States in Congress assembled as, when 
 agreed to by them and afterwards confirmed by 
 the Legislatures of every State, would effectu- 
 ally provide for the same. 
 
 Congress, on the 21st of February, 1787, 
 adopted a resolution in favor of a convention, 
 and the Legislatures of those States which had 
 not already done so (with the exception of 
 Rhode Island) promptly appointed delegates. 
 On the 25th of May, seven States ha\'ing con- 
 vened, George Washington, of Virginia, was 
 unanimously elected President, and the con- 
 sideration of the proposed constitution was 
 commencod. _ On the 17th of September, 1787, 
 the Constitution as engrossed and agreed upon 
 was signed by all the members present, except 
 
 IVIi-. Gerry, of Massachusetts, and Messrs. 
 Mason and Randolph, of Virginia. The presi- 
 dent of the convention transmitted it to Con- 
 gress, with a resolution stating how the proposed 
 Federal Government should be put in operation, 
 and an explanatory letter. Congress, on the 
 28th of September, 1787, directed the Constitu- 
 tion so framed, with the resolutions and letter 
 concerning the same, to "be transmitted to the 
 several Legislatures in order to be submitted 
 to a convention of delegates chosen in each 
 State by the people thereof, in conformity to 
 the resolves of the convention." 
 
 On the 4th of March, 1789, the day which had 
 been fixed for commencing the operations of 
 Government under the new Constitution, it 
 had been ratified by the conventions chosen 
 in each State to consider it, as follows: Dela- 
 ware, December 7, 1787; Pennsylvania, De- 
 cember 12, 1787; New Jersey, December 18, 
 1787; Georgia, January 2, 1788; Connecticut, 
 January 9, 1788; Massachusetts, February 6, 
 1788; Marvland, April 28, 1788; South Caro- 
 lina, May'2.3, 1788; New Hampshire, June 21, 
 1788; Virginia, June 26, 1788; and New York, 
 •luly 26, 1788. 
 
 The President informed Congress, on the 28th 
 of January, 1790, that North Carolina had 
 ratified the Constitution November 21, 1789; 
 and he informed Congress on the 1st of June, 
 
 1790, that Rhode Island had ratified the Con- 
 stitution May 29, 1789. Vermont, in conven, 
 tion, ratified the Constitution January 10, 1791- 
 and was, by an act of Congress approved Feb- 
 rtiary 18, 1791, "received and admitted into 
 this Union as a new and entire member of the 
 United States." 
 
 The first ten amendments to the Constitu- 
 tion of the United States [commonly known 
 as the "Bill of Rights"] were proposed to the 
 legislatm-es of the several States by the First 
 Congress, on the 25th of Septenaber, 1789. 
 They were ratified by the following States, 
 and the notifications of ratification by the 
 governors thereof were successively communi- 
 cated by the President to Congress: New 
 Jersey, November 20, 1789; Maryland, De- 
 cember 19, 1789; North Carolina, December 
 22, 1789; South Carolina, January 19, 1790; 
 New Hampshire, January 25, 1790; Delaware, 
 January 28, 1790; Pennsylvania, March 10, 
 1790; New York, March 27, 1790; Rhode 
 Island, June 15, 1790; Vermont, November 3, 
 
 1791, and Virginia, December 15, 1791. There 
 is no evidence on the journals of Congress 
 that the legislatines of Connecticut, Georgia, 
 and Massachusetts ratified them. 
 
 The eleventh amendment to the Constitu- 
 tion of the United States was proposed to the 
 legislatiu"es of the several States by the Third 
 Congi-ess on the 5th of March, 1794; and was 
 
 54641°— 22- 
 
 27 
 
Historical Note. 
 
 PL 1. THE CONSTITUTION. 
 
 doclared in a message from the Prosidont to 
 Congress, dated th(> Stli of January, 179S, to 
 have been ratified by the k'gislatures of three- 
 fourths of the States. 
 
 The twelfth amendment to the Constitu- 
 tion of the I'uitcd Slates was proposed to the 
 U'gbUitures of llio several ytat(>s l)y the Eighth 
 Congress, on tlie 12th of December, 1S03, in 
 lieu of the original third paragraph of the fust 
 section of the sr cond artide; and was declared 
 in a proclamation of the Secretary of State, 
 dated the 2oth of Sept<>mber, 1804, to have been 
 rati lied by the K'gislatures of three-fourths 
 of the States. 
 
 The thirteenth amendment to the Con- 
 stitution of the United States was proposed to 
 the legislatures of the several States by the 
 Thirt}-eighth Congress, on the 1st of February, 
 1865, and was declared, in a proclamation of th(^ 
 Secretary of State,, dated the 18th of December, 
 
 1865, to have been ratified by the legislatures of 
 twenty-seven of the thirty-six States, viz; 
 Illinois, Rhode Island, Michigan, Maryland, 
 New York, West Virginia, Maine, Kansas, 
 Massachusetts, Pennsylvania, Virginia, Ohio, 
 Missouri, Nevada, Indiana, Louisiana, Minne- 
 sota, Wisconsin, Vermont, Tennessee, Arkansas, 
 Connecticut, New Hampshire, South Carolina, 
 Alabama, North Carolina, and Georgia. 
 
 The fourteenth amendment to the Con- 
 stitution of the United States was proposed to 
 the legislature's of the several States by the 
 Thirty-ninth Congress, on the 16th of June, 
 
 1866. On the 21st of July, 1868, Congress 
 adopted and transmitted to the Department of 
 State a concurrent resolution declaring that 
 "the legislatures of the States of Connecticut, 
 Tenijessee, New Jersey, Oregon, Vermont, New 
 York, Ohio, Illinois, West Virginia, Kansas, 
 Maine, Nevada, Missouri, Indiana, Alinnesota, 
 New Hampshire, Massachusetts, Nebraska, 
 Iowa, Arkansas, Florida, North Carolina, Ala- 
 bama, South Carolina, and Louisiana, being 
 three-fourths and more of the several States of 
 the Union, have ratified the fourteenth article 
 of amendment to the Constitution of the United 
 States, duly proposed by two-thirds of each 
 House of the Thirty-ninth Congress: Therefore 
 Resolved, That said fourteenth article is hereby 
 declared to be a part of the Constitution of the 
 United States, and it shall be duly promulgated 
 as such by the Secretary of State." The 
 Secretary of State accordingly issued a procla- 
 mation, dated the 28th of July, 1868, declaring 
 that the proposed fourteenth amendment had 
 been ratified, in the manner hereafter men- 
 tioned, by the legislatures of thirty of the thirty- 
 six States, viz: Connecticut, June 30, 1866; 
 New Hampshire, July 7, 1866; Tennessee, July 
 19, 1866; New Jersey, September 11, 1866 (and 
 the legislature of the same State passed a reso- 
 lution in April, 1868, to withdraw its consent to 
 it); Oregon, September 10, 1866; Vermont, 
 November 9, 1866; Georgia rejected it Novem- 
 ber 13, 1860, and ratified it July 21, 1868; 
 North Carolina rejected it December 4, 1866, 
 and ratified it July 4, 1868; South Carolina 
 rejected it December 20, 1866, and ratified it 
 July 9, 1868; New York ratified it January 10, 
 1867; Ohio ratified it January 11, 1867 (and the 
 legislature of the same State passed a resolu- 
 
 tion in January, 1868, to withdraw its consent 
 to it) ; Illinois ratified it January 15, 1867 ; West 
 Virgina, January 16, 1867; Kansas, January 18, 
 1867; Maine, January 19, 1867; Nevada, Janu- 
 ary 22, 1867; Missouri, January 26, 1867; Indi- 
 ana, January 20, 1867; Minnesota, February 1, 
 1867; Rhode Island, February 7, 1867; Wis- 
 consin, F(>bruary 13, 1867; Pennsylvania, 
 February 13, 1867; Michigan, February 15, 
 1867; Massachusetts, March 20, 1867; Nebraska 
 June 15, 1867; Iowa, April 3, 1868; Arkansas, 
 April 6, 1868; Florida, June 9, 1868; Louisiana, 
 July 9, 1868, and Alabama, July 13, 1868. 
 Georgia again ratified the amendment February 
 2, 1870. Texas rejected it November 1, 1866, 
 and ratified it February 18, 1870. Virginia 
 rejected it January 19, 1867, and ratified it 
 October 8, 1 869. The amendment was rejected 
 by Kentucky January 10, 1867; by Delaware 
 February 8, 1867; by Maryland March 23, 1867, 
 and was not afterwards ratified by either State. 
 
 The fifteenth amendment to the Constitu- 
 tion of the United States was proposed to the 
 legislatures of the several States by the For- 
 tieth Congress on the 27th of February, 1869, 
 and was declared, in a proclamation of the 
 Secretary of State, dated March 30, 1870, to 
 have been ratified by the legislatures of twenty- 
 nine of the thirty-seven States. The dates of 
 these ratifications (arranged in the order of 
 their reception at the Department of State) 
 were: From North Carolina, March 5, 1869; 
 West Virginia, March 3, 1869; Massachusetts, 
 March 9-12, 1869; Wisconsin, March 9, 1869; 
 Maine, March 12, 1869; Louisiana, March 5, 
 1869; Michigan, March 8, 1869; South Carolina, 
 March 16, 1869; Pennsylvania, March 26, 1869; 
 Arkansas, March 30, 1869; Connecticut, May 
 19, 1869; Florida, June 15, 1869; Illinois, 
 March 5, 1869; Indiana, May 13-14, 1869; 
 Ney? York, March 17-April 14, 1869 (and the 
 legislature of the same State passed a resolu- 
 tion January 5, 1870, to withdraw its consent to 
 it); New Hampshire, July 7, 1869; Nevada, 
 March 1, 1869; Vermont, October 21, 1869; 
 Virginia, October 8, 1869; Missouri, January 
 10, 1870; Mississippi, January 15-17, 1870; 
 Ohio, January 27, 1870; Iowa, February 3, 
 1870; Kansas, January 18-19, 1870; Minnesota, 
 February 19, 1870; Rhode Island, January 18, 
 1870; Nebraska, February 17, 1870; Texas, 
 February 18, 1870. The State of Georgia also 
 ratified the amendment February 2, 1870. 
 
 The sixteenth amendment to the Consti- 
 tution of the United States was proposed to 
 the legislatures of the several States by the 
 Sixty-first Congress on the 12th day of July, 
 1909, and was declared, in an announcement 
 by the Secretary of State, dated February 25, 
 1913, to have been ratified by the legislatures 
 of the following thirty-eight of the forty-eight 
 States. The dates of these ratifications were: 
 Alabama, August 17, 1909; Kentucky, Febru- 
 ary 8, 1910; South Carolina, February 23, 
 1910; Illinois, March 1, 1910; Mississippi, 
 March 11, 1910; Oklahoma, March 14, 1910; 
 Maryland, April 8, 1910; Georgia, August 3, 
 1910; Texas, August 17, 1910; Ohio, January 
 19, 1911; Idaho, January 20, 1911; Oregon, 
 January 23, 1911; Washington, January 26, 
 1911; California, January 31, 1911; Montana, 
 
 28 
 
Pt.l. THE CONSTITUTION. 
 
 Historical Note. 
 
 January 31, 1911; Indiana, February 6, 1911; 
 Nevada, February 8, 1911; Nebraska, Febru- 
 ary 11, 1911; North Carolina, February 11, 
 1911; Colorado, February 20, 1911; North 
 Dakota, February 21, 1911; Michigan, Febru- 
 ary 23, 1911; Iowa, February 27, 1911; Kansas, 
 March 6, 1911; Missouri, ' March 16, 1911; 
 Maine, March 31, 1911; Tennessee, April 11, 
 1911; Arkansas, April 22, 1911; Wisconsin, May 
 26, 1911; New York, July 12, 1911; South 
 Dakota, February 3, 1912; Arizona, April 9, 
 1912; Minnesota, June 12, 1912; Louisiana, 
 July 1, 1912; Delaware, February 3, 1913; 
 Wyoming, February 3, 1913; New Jersey, 
 February 5, 1913; New Mexico, February 5, 
 1913. The States of Connecticut, New Hamp- 
 shire, Rhode Island, and Utah rejected this 
 amendment. 
 
 The seventeenth amendment to the Con- 
 stitution of the United States was proposed to 
 the legislatixres of the several States by the 
 Sixty-second Congress on the 16th day of May, 
 1912, and was declared, in an announcement 
 by the Secretary of State, dated May 31, 1913, 
 to have been ratified by the legislatures of the 
 following thirty-six of the forty-eight States. 
 The dates of these ratifications were: Massachu- 
 setts, May 22, 1912; Arizona, June 3, 1912; 
 Minnesota, June 10, 1912; New York, January 
 15, 1913; Kansas, January 17, 1913; Oregon, 
 January 23, 1913; North Carolina, January 25, 
 1913; California, January 28, 1913; Michigan, 
 January 28, 1913; Idaho, January 31, 1913; 
 West Virginia, February 4, 1913"; Nebraska, 
 February 5, 1913; Iowa, February 6, 1913; 
 Montana, February 7, 1913; Texas, February 
 7, 1913; Washington, February 7, 1913; Wyom- 
 ing, February 11, 1913; Colorado, February 13, 
 1913; Illinois, February 13, 1913; North Dakota, 
 February 18, 1913; Nevada, February 19, 1913; 
 Vermont, February 19, 1913 ; Maine, February 
 20, 1913; New Hampshire, February 21, 1913; 
 Oklahoma, February 24, 1913; Ohio, February 
 25, 1913; South Dakota, February 27, 1913; 
 
 Indiana, March 6, 1913; Missouri, March 7, 
 1913; New Mexico, March 15, 1913; New Jersey. 
 March 18, 1913; Tennessee, April 1, 1913; 
 Arkansas, April 14, 1913; Connecticut, April 
 15, 1913; Pennsylvania, April 15, 1913; Wis- 
 consin, May 9, 1913. 
 
 The eighteenth amendment to the Con- 
 stitution of the United States was proposed to 
 the legislatures of the several States by the 
 Sixty-hfth Congress on the 19th day of De- 
 cember, 1917, and was declared, in an an- 
 nouncement by the Acting Secretary of State, 
 dated January 29, 1919, to have been ratified 
 by the legislatures of three-fourths of the 
 whole number of States in the United States, 
 as follows: Alabama, Arizona, California, Colo- 
 rado, Delaware, Florida, Georgia, Idaho* Illi- 
 nois, Indiana, Kansas, Kentucky, Louisiana, 
 Maine, Maryland, Massachusetts, Michigan, 
 Minnesota, Mississippi, Montana, Nebraska, 
 New Hampshire, North Carolina, North 
 Dakota, Ohio, Oklahoma, Oregon, South 
 Dakota, South Carolina, Texas, Utah, Vii'ginia, 
 Washington, West Virginia, Wisconsin, and 
 Wyoming. 
 
 The nineteenth amendment to the Con- 
 stitution of the United States was proposed to 
 the legislatures of the several States by the 
 Sixty-sixth Congress on the 5th day of June, 
 
 1919, and was declared, in an announcement 
 by the Secretary of State dated August 26, 
 
 1920, to have been ratified by the legislatures 
 of three-fourths of the whole number of States 
 in the United States, as follows: Wisconsin, 
 Illinois, Michigan, Ohio, Massachusetts, Iowa, 
 Missouri, Nebraska, Montana, Minnesota, New 
 Hampshire, Utah, California, Maine, Pennsyl- 
 vania, Kansas, Arkansas, Texas, New York, 
 South Dakota, North Dakota, Colorado, Rhode 
 Island, Indiana, Kentucky, Oregon, Wyoming, 
 Nevada, Arizona, New Jersey, Oklahoma, West 
 Virginia, New Mexico, Idaho, Washington, and 
 Tennessee. 
 
 29 
 
THE CONSTITUTION. 
 
 (The text of the Constitution and of the amendments given below is reproduced from S. Doc. No. 427, 66th Cong., 
 3d sess.] 
 
 [The preamble.] We the People of the United States, in Order to form a 
 more perfect Union, establish Justice, insure domestic Tranquihty, provide for 
 the common defence, promote the general Welfare, and secure the Blessings of 
 Liberty to ourselves and our Posterity, do ordain and estabUsh this Consti- 
 tution for the United States of America. 
 
 ARTICLE I. 
 
 Section 1. [Legislative powers vested in Congress.] All legislative Powers 
 herein granted shall be vested in a Congress of the United States, which shall 
 consist of a Senate and House of Representatives. 
 Congress can not legislate in detail. — To 
 
 attempt to regulate by statute the minute move- 
 ments of CAery part of the compUcated ma- 
 chinery of government would evince a most 
 unpanlonable ignorance on the subject. Whilst 
 the great outlines of its movements may be 
 marked out and Hmitations imposed on the 
 exercise of its powers, there are numberless 
 things which must be done that can neither be 
 anticipated nor defined and which are essen- 
 tial to the proper action of the Government. 
 (U. S. V. Macdaniel, 7 Pet., 14; U. S. v. Web- 
 ster, 28 Fed. Cas., 515; Lewis Pub. Co. v. Wy- 
 man, 182 Fed. Rep., 13, 16; Haas v. Henkel, 
 216 U. S.,462, 480; 6 Op. Atty. Gen., 358.) 
 
 Quasi legislative powers may be exer- 
 cised by heads of departments. — Congress 
 can only legislate in a general way, and lai^e 
 powers are necessarily intrusted to the different 
 departments. They really exercise in this way 
 by delegation, and necessarily so, for the pur- 
 pose of carrying on the vast affairs of the Govern- 
 ment and its details, authority which in a 
 strict sense pertains to Congress. (21 Op. Atty. 
 Gen., 438, 439.) The authority thus exercised 
 by heads of departments is "quasi legislative." 
 (16 Op. Atty. Gen., 495.) 
 
 For other decisions concerning executive 
 regulations, see note to section 161, Revised 
 Statutes. 
 
 Constitutionality of Statutes. — "To war- 
 rant a court in declaring unconstitutional a law 
 passed by Congress, the defect of legislative 
 power must be of the most plain and indispu- 
 table character. The fact that a law of Con- 
 gress has been in course of execution for many 
 years and has been acquiesced in during that 
 time is a strong reason why the coiu-ts, espe- 
 cially those of a subordinate character, should 
 not decide the same to be unconstitutional." 
 (U. S. V. Mackenzie, 30 Fed. Cas. No. 18313.) 
 
 Although the President should veto an act 
 on the ground that he believed it to be uncon- 
 stitutional, if it should subsequently be passed 
 by Congress over his veto and the President 
 proceed to carry it into execution, such action 
 by him can not be enjoined by the courts. 
 (Mississippi v. Johnson, 4 Wall., 475.) 
 
 The Attorney General is authorized by statute 
 to pass upon the constitutionaUty of acts of 
 Congi-ess when requested to render an opinion 
 thereon by the President or head of a depart- 
 ment. (Sec. 358, R. S. ; 27 Op. Atty. Gen., 259.) 
 
 "Every law is to be carried out so far forth 
 as is consistent with the Constitution, and no 
 further. The sound part of it must be exe- 
 cuted, and the vicious portion of it suffered 
 to drop. A legislative act is not to be treated 
 as void merely because it is coupled with an 
 abortive attempt to usurp executive powers. 
 It stands to reason that if a condition such as 
 this is asserted to be is void it coiild have no 
 effect whatever, either upon the subject matter 
 or upon other parts of the law to which it is 
 appended. * * * You [the President] are 
 therefore entirely justified in treating this con- 
 dition (if it be a condition) as if the paper on 
 which it is written were blank." (9 Op. Atty. 
 Gen., 462.) 
 
 Congress can not enact advice or coun- 
 sel. It can enact nothing but that which is 
 to have fidl vigor and effect of a law. (18 Op. 
 Atty. Gen., 18; but see sec. 1755, R. S.) 
 However, where Congress enacted a law which 
 was construed by the Attorney General to 
 be advisory only, and not mandatory upon 
 the President as claimed, the Attorney General 
 in his opinion to the President remarked: 
 " But it is what yoii called it in your message — 
 a recommendation; and your respectful defer- 
 ence to the wishes of Congress induced you to 
 carry it out, though you were not boimd to do 
 80." (9 Op. Atty. Gen., 462.) 
 
 "Procuring legislation by the private 
 solicitation of persons who have no official dela- 
 tions which authorize them to communicate with 
 Congress is never to be commended; it can be 
 excused only where the motive is as manifestly 
 honest as it was in this case. You, yourself, 
 speaking of this very affair in a solemn message 
 have declared it to be dangerous to the sub- 
 ordination and discipUne of the Army, since, 
 if it were encouraged, 'officers might then be 
 found, instead of performing their appropriate 
 duties, besieging the halls of Congress for the 
 purpose of obtaining special favors and choice 
 
 30 
 
Senators. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. I, Sec. 3. 
 
 places by legislative enactment.' " (Atty. 
 Gen. to the President, 9 Op. Atty. Gen., 468; 
 Messages and Papers of the Presidents, vol. 5, p. 
 597; see also acta July 11, 1919, sec. 6, 41 Stat., 
 68, and Aug. 24, 1912, sec. 6, 37 Stat., 555.) 
 
 By General Orders, No. 32, War Department, 
 March 15, 1873, it was ordered that "no officer, 
 either active or retired, shall, directly or indi- 
 rectly, without being called upon by proper 
 authority, solicit, suggest, or recommend action 
 by Members of Congress for or against military 
 affairs;" that "all petitions to Congress by 
 officers relative to subjects of a military char- 
 acter will be forwarded through the General of 
 the Army and Secretary of \\'ar for their action 
 and transmittal; " and that " an officer \TLsi ting 
 
 the seat of government during a congressional 
 session will, upon his arrival, register his name 
 at the Adjutant General's Office, as now re- 
 quii-ed, and, in addition, address a letter to the 
 Adjutant General of the Army, reciting the 
 purpose of and time that will be embraced by 
 his visit and the authority under which he is 
 absent from his command or station. The pur- 
 pose or object so recited will be the strict guide 
 of the officer during his stay. ' ' (As to authority 
 of Secretary of War to issue such an order, see 
 letter of Secretary of War in reply to House 
 Resolution of April 13, 1874, as published in 
 Executive Document No. 275, House of Rep- 
 resentatives, 43d Cong., 1st sess.; Lieber on 
 Regulations, Appendix A.) 
 
 Sectiox 2. [Clause 1. Election of Representatives.] * The House of Repre- 
 sentatives shall be composed of Members chosen every second Year by the 
 People of the several States, and the Electors in each State shall have the 
 Qualifications requisite for Electors of the most numerous Branch of the State 
 Legislature. 
 
 [Clause 2. Qualifications of Representatives.] ^ No Person shall be a Repre- 
 sentative who shall not have attained to the Age of twenty-five Years, and 
 been seven Years a Citizen of the United States, and who shall not, when 
 elected, be an Inhabitant of that State in which he shall be chosen. 
 
 [Clause 3. Apportionment of Representatives and direct taxes.] ^ Repre- 
 sentatives and direct Taxes shall be apportioned among the several States 
 which may be included within this Union, according to their respective Num- 
 bers, which shall be determined by adding to the whole Number of free Persons, 
 including those bomid to Service for a Term of Years, and excluding Indians 
 not taxed, three fifths of all other Persons. The actual Enumeration shall be 
 made within three Years after the first Meeting of the Congress of the United 
 States, and within every subsequent Term of ten Years, in such Marnier as 
 they shall by Law direct. The Number of Representatives shall not exceed 
 one for every thirty Thousand, but each State shall have at Least one Rep- 
 resentative; and until such enumeration shall be made, the State of New 
 Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island 
 and Providence Plantations one, Connecticut five, New-York six. New Jersey 
 four, Pennsylvania eight, Delaware one, Maryland six, Virgmia ten. North 
 Carohna five. South Carolina five, and Georgia three. 
 
 The first sentence of this clause is amended by the fourteenth amendment, second section. 
 
 [Clause 4. Vacancies in House of Representatives.] * When vacancies happen 
 in the Representation from any State, the Executive Authority thereof shall 
 issue Writs of Election to fill such Vacancies. 
 
 [Clause 5. Officers and impeaching" power of House of Representatives.] ^ The 
 House of Representatives shall chuse their Speaker and other Officers; and 
 shaU have the sole Power of Impeachment. 
 
 Section 3. [Clause 1. Number and election of Senators.] ^ The Senate of 
 the United States shall be composed of two Senators from each State, chosen 
 by the Legislature thereof, for six Years; and each Senator shall have one Vote. 
 
 This clause is superseded by the seventeenth amendment. 
 
 31 
 
Art. I, Sec. 5. Pt. 1. THE CONSTITUTION. The Congress. 
 
 [Clause 2. Term of Senators and filling of vacancies.] - Immediately after 
 they shall be assembled in Consequence of the first Election, they shall be 
 divided as equally as may be into three Classes. The Seats of the Senators 
 of the first Class shall be vacated at the Expiration of the second Year, of the 
 second Class at the Expiration of the fourth Year, and of the third Class at 
 the Expiration of the sixtli Year, so that one-third may be chosen every second 
 Year; and if Vacancies happen by Resignation, or otherwise, during the 
 Recess of the Legislature of any State, the Executive thereof may make tem- 
 porary Appointments until the next Meetmg of the Legislature, which shall 
 then fill such Vacancies. 
 
 This clause is modified by the seventeenth amendment. 
 
 [Clause 3. Qualifications of Senators.] ' No Person shall be a Senator who 
 shall not have attained to the Age of thirty Years, and been nine Years a Citizen 
 of the United States, and who shall not, when elected, be an Inhabitant of that 
 State for which ho shall be chosen. 
 
 [Clause 4. The Vice-President and his vote.] * The Vice President of the 
 United States shall be President of the Senate, but shall have no Vote, imless 
 they bo equally divided. 
 
 [Clause 5. Officers of the Senate.] ^ The Senate shall chuse their other 
 Officers, and also a President pro tempore, m the absence of the Vice President, 
 or when he shall exercise the Office of President of the United States. 
 
 [Clause 6. Trial by Senate of impeachments.] ^ The Senate shall liave the 
 sole Power to try aU Impeachments. When sitting for that Purpose, they shall 
 be on Oath or Affirmation. When the President of the United States is tried, 
 the Chief Justice shall preside: And no Person shall be convicted without the 
 ConcuiTence of two thirds of the Members present. 
 
 [Clause 7. Judgment in cases of impeachment.] '' Judgment in Cases of 
 Impeachment shall not extend further than to removal from Office, and dis- 
 qualification to hold and enjoy any Office of honor. Trust or Profit under the 
 United States: but the Party convicted shall nevertheless be liable and subject 
 to Indictment, Trial, Judgment and Punishment, according to Law. 
 
 Section 4. [Clause 1. Holding of elections for Senators and Representa- 
 tives.] ^ The Times, Places and Manner of holding Elections for Senators and 
 Representatives, shall be prescribed in each State by the Legislature thereof; 
 but the Congress may at any time by Law make or alter such Regulations, 
 except as to the Places of chusing Senators. 
 
 [Clause 2. Annual session of Congress.] ^ The Congress shall assemble at 
 least once in every Year, and such Meeting shall be on the first Monday in 
 December, unless they shall by Law appoint a different Day. 
 
 Section 5. [Clause 1. Regularity of elections, quorum to do business, etc.] 
 ^ Each House shall he the Judge of the Elections, Returns and Qualifications of 
 its o^^^l Members, and a Majority of each shall constitute a Quorum to do 
 Business; but a smaller Number may adjourn from day to day, and may be 
 authorized to compel the Attendance of absent Members, in such Manner, and 
 under such Penalties as each House may provide. 
 
 32 
 
The Congress. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. I, Sec. 6. 
 
 Acts of Member not legally elected. — A 
 member of Congress who has actually been 
 seated is a de facto member, and acts performed 
 by him as such are valid, although he may sub- 
 sequently be unseated as the result of an elec- 
 
 tion contest. So held with reference to the 
 nomination of a candidate for appointment as a 
 midshipman at the Naval Academy. (21 Op. 
 Atty. Gen., 342.) 
 
 [Clause 2. Rules of proceedings; punishmeiit of members.] ^ Each House 
 may determine the Rules of its Proceedings, punish its Members for disorderly 
 Behavior, and, with the Concurrence of two thirds, expel a Member. 
 
 [Clause 3. Journal of proceedings.] ^ Each House sliall keep a Journal of 
 its Proceedings, and from time to time publish the same, excepting such Parts 
 as may in their Judgment require Secrecy; and the Yeas and Nays of the Mem- 
 bers of either House on any question shall, at the Desire of one fifth of those 
 Present, be entered on the Journal. 
 
 [Clause 4. Temporary adjournments.] * Neither House, during the Session 
 of Congress, shall, without the Consent of the otlier, adjourn for more than three 
 days, nor to any other Place than that in which the two Houses shall be sitting. 
 
 A temporary adjournment is not a "re- only to the case where the Senate adjourns sine 
 
 cess of the Senate" within the meaning of die (23 Op. Atty. Gen., 599; affirmed, 29 Op. 
 
 Article II, section 2, clause 3, empowering the Atty. Gen., 602; contra, Gould v. U. S., 19 Ct. 
 
 President to fill vacancies. "Recess" refers Cls., 593, 595; 33 Op. Atty. Gen., 20.) 
 
 Section 6. [Clause 1. Compensation and privilege of Senators and Repre- 
 sentatives.] ^ The Senators and Representatives shall receive a Compensation 
 for tlieir Services, to be ascertained by Law, and paid out of the Treasury of the 
 United States. They shall in all Cases, except Treason, Felony and Breach of 
 the Peace, be privileged from Arrest during their Attendance at the Session of 
 their respective Houses, and in going to and returning from the same; and for 
 any Speech or Debate in either House, they shall not be questioned in any other 
 Place. 
 
 The privilege from arrest does not ex- 
 empt Senators and Representatives from being 
 served with, and required to obey, a subpoena 
 in a criminal case. (U. S. v. Cooper, 25 Fed. 
 Gas. No. 14861.) 
 
 Naval courts-martial and courts of in- 
 quiry have power to issue Like process to com- 
 pel witnesses to appear and testify as United 
 States courts of criminal jurisdiction; and re- 
 fusal of any person to appear and testify when 
 so subpoenaed is punishable as a misdemeanor by 
 fine and imprisonment. (Act Feb. 16, 1909, sees. 
 11 and 12, 35 Stat., 621, 622.) Held, that under 
 this law a court of inquiry is empowered to sub- 
 poena a Representati\e attending a session of 
 Congress, but that if he refused to appear, he 
 could not be compelled to do so owing to the 
 fact that under this clause of the Constitution 
 he would be pri\'ileged from arrest for the mis- 
 demeanor so committed. (Court of inquiry 
 Rec. No. 5203, pp. 1281-1286, 1293-1294, 1339- 
 1343, 1363-1365, 1422.) 
 
 [In the case cited the court of inquiry issued 
 a subpoena for Representative John W." Weeks. 
 
 The record showed that he was advised by the 
 Speaker and parliamentarians of the House not 
 to respond without an order of the House; that 
 this would necessitate the introduction of a res- 
 olution in the House, which would possibly 
 create a debate and produce considerable pub- 
 licity as to the subject of the inquiry; that he 
 was willing to appear voluntarily without a sub- 
 poena; that the Department had been consulted 
 and held as above stated. Accordingly, the 
 court decided to withdraw the subpoena, and 
 Representative Weeks thereupon voluntarily 
 appeared and testified.] 
 
 Privilege applies only to civil cases. — 
 "The words 'treason, felony, and breach of the 
 peace ' were used by the framers of the Consti- 
 tution in Sec. 6, Art. I, and should be construed, 
 in the same sense as those words were commonly 
 used and understood in England as applied to 
 the parliamentary privilege, and as excluding 
 from the privilege all arrests and prosecutions 
 for criminal offenses, and confining the privilege 
 alone to arrests in civil cases." (Williamson 
 V. U. S., 207 U. S., 427.) 
 
 [Clause 2. Appointment of Senators or Representatives to otlier oflSces.] 
 2 No Senator or Representative shall, during the Time for which he was elected, 
 be appointed to any civil Office under the Authority of the United States, 
 which shall have been created, or the Emoluments whereof shall have been 
 encreased during sucli time; and no Person holding any Office under the United 
 Statas, shall be a Member of either House during his Continuance in Office. 
 
 33 
 
Art. I, Sec. 7. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Veto Po-wer. 
 
 This clause prevents the appointment of 
 a ft)rnuT i^cnutor to a c\\\\ oilico created after 
 his resignation from the iSenate, but "during 
 the time for which he was elected." (17 Op. 
 Atty. Gen., 3G5.) It also prevents his appoint- 
 ment as a member of the Cabinet, where the 
 salary of the office was increased during his 
 service in the Senate. (See note to sec. 160, 
 R. S.) The President is not authorized to 
 nominate for office a person ineligible under 
 this clause, and such a nomination, although 
 confirmed by the Senate, can not be made the 
 
 basis of an appointment to the nominee even 
 when his disqualification ceases. (17 Op. Atty. 
 Gen., 522.) 
 
 The Secretary of War is not in the military 
 service, but is a civil officer. (U. S. v. Bums, 
 12 Wall., 246.) 
 
 Whether a retired Army officer can receive 
 pay as such while holding a seat in Congress is 
 a question of grave doubt which only a deter- 
 mination of the Supreme Court can satisfac- 
 torily settle. (20 Op. Atty. Gen., 686; see also 
 file 27231-74, May 12, 1916.) 
 
 Section 7. [Clause 1. Bills for raising revenue.] ^All Bills for raising 
 RoTonue shall originate in the House of Representatives; but the Senate may 
 propose or concur with Amendments as on other Bills. 
 
 [Clause 2. Approval and disapproval of bills by President.] - Every Bill 
 which shall have passed the House of Representatives and the Senate, shall, 
 before it become a Law, be presented to the President of the United States; 
 If he approve he shall sign it, but if not he shall return it, with his Objections 
 to that House in which it shall have originated, who shall enter the Objections 
 at large on their Journal, and proceed to reconsider it. If after such Recon- 
 sideration two thirds of that House shall agree to pass the Bill, it shall be sent, 
 together with the Objections, to the other House, by which it shall likewise 
 be reconsidered, and if approved by two thirds of that House, it shall become 
 a Law. But in all such Cases the Votes of both Houses shall be determined 
 by Yeas and Nays, and the Names of the Persons voting for and against the 
 Bill shall be entered on the Journal of each House respectively. If any BOl 
 shall not be returned by the President within ten Days (Sundays excepted) 
 after it shall have been presented to him, the Same shall be a Law, in like 
 Manner as if he had signed it, unless the Congress by their Adjournment prevent 
 its Return, in which Case it shall not be a Law. 
 
 Bills vetoed as unconstitutional and 
 becoming law without President's ap- 
 proval. — ^\Vhere certain bills were enacted into 
 law without the approval of President Johnson, 
 who had vetoed them on the ground of their 
 unconstitutionality, he proceeded to put them 
 into effect, and it was held by the Supreme 
 Court that such action on the part of the Presi- 
 dent could not be enjoined, notwithstanding 
 the alleged unconstitutionality of the statutes. 
 (Mississippi v. Johnson, 4 Wall., 475.) 
 
 Veto of bill authorizing restoration of 
 dismissed officer. — A bill passed by both 
 houses of Congress pro^•ided: That the Presi- 
 dent be, and he is hereby, authorized to nomi- 
 nate and, by and with the advice and consent 
 of the Senate, to appoint Fitz John Porter, late 
 a major general of the United States Volunteei-s 
 and a brevet brigadier general and colonel of 
 the Army, to the position of colonel in the Army 
 of the United States, of the same grade and rank 
 held by him at the time of his dismissal from the 
 Army by sentence of court-martial promul- 
 gated January 27, 1863. * * * " 
 
 This bill was vetoed by the President in a 
 message reading in part as follows: 
 
 " It is apparent that should this bill become a 
 law it will create a new office which can be 
 filled by the appointment of the particular in- 
 
 dividual whom it specifies, and can not be filled 
 otherwise; or it may be said with perhaps 
 greater precision of statement that it ■u'ill create 
 a new office upon condition that the particular 
 person designated shall be chosen to fill it. 
 Such an act, as it seems to me, is either unneces- 
 sary and ineffective or it involves an encroach- 
 ment by the legislative branch of the Govern- 
 ment upon the authority of the Executive. 
 As the Congress has no power under the Consti- 
 tution to nominate or appoint an officer and can 
 not lawfully impose upon the President the 
 duty of nominating or appointing to office any 
 particular indi\'idual of its own selection, this 
 bill, if it can fairly be constnied as requiring the 
 President to make the nomination and, by and 
 with the advice and consent of the Senate, the 
 appointment which it axithorizes is in manifest 
 violation of the Constitution. If such be not its 
 just interpretation, it must be regarded as a 
 mere enactment of advice and counsel, which 
 lacks in the very nature of things the force of 
 positive law and can serve no useful purpose 
 upon the statute books." (Veto message of 
 President Arthur, Jidy 2, 1884, Messages and 
 Papers of the Presidents, vol. 8, p. 221.) 
 
 The Attorney General advised the President that 
 the above bill was beyond the power of Congress 
 and should not be approved by the President, 
 
 34 
 
Veto Power. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. I, Sec. 7. 
 
 for reasons similar to those afterwards given in 
 the veto message above quoted. (See 18 Op. 
 Atty. Gen., 18, noted imder Art. II, sec. 2, 
 clause 2.) 
 
 The Secretary of the Navy in commenting upon 
 the above veto message stated: "The foregoing 
 clear exposition of the force of section 2 of Arti- 
 cle II of the Constitution * * * shows that 
 an effectual barrier has been established by the 
 Constitution to any restoration to the Navy, by 
 legislation, of particiilar officers who have been 
 dismissed therefrom; and the Supreme Court 
 has further established the proposition that 
 such dismissals when once accomplished can not 
 be revoked by the Executive. No more impor- 
 tant doctrines than these can be stated bearing 
 upon the welfare of our Na\'y personnel. ' ' (An- 
 nual Report, 1884, p. 43. See also note to Art. 
 II, sec. 2, clause 2, "Restoration of dismissed 
 officers.") 
 
 Veto of bill to annul the finding and sen- 
 tence of a court-martial. — "There are other 
 causes that deter me from giving this bill the 
 sanction of my approval. The judgment of the 
 court-martial by which, more than twenty years 
 since, Fitz John Porter was tried and convicted 
 was pronounced by a tribimal composed of nine 
 general officers of distinguished character and 
 ability. Its investigation of the charges for 
 which it found the accused guilty was thorough 
 and conscientious, and its findings and sentence 
 were in due coiu-se of law approved by Abraham 
 Lincoln, then President of the United States. 
 Its legal competency, its jurisdiction of the ac- 
 cused and of the subject of the accusations, and 
 the substantial regularity of all of its proceed- 
 ings are matters which have never been brought 
 into question. Its judgment, therefore, is final 
 and conclusive in its character * * *. 
 
 "The pro\isions of the bill now under con- 
 sideration are avowedly based on the assumption 
 that the findings of the court-martial have been 
 discovered to be erroneous; but it will be borne 
 in mind that the investigation which is claimed 
 to have resulted in this discovery was made 
 many years after the events to which that evi- 
 dence related and under circumstances that 
 made it impossible to reproduce the evidence 
 on which they were based. 
 
 "It seems to me that the proposed legislation 
 woTild establish a dangerous precedent, calcu- 
 lated to imperil in no small measure the binding 
 force and effect of the judgments of the various 
 tribiuials established under om- Constitution 
 and laws. 
 
 "I have already, in the exercise of the par- 
 doning power with which the President is 
 vested by the Constitution, remitted the con- 
 tinuing penalty which had made it impossible 
 for Fitz John Porter to hold any office of trust or 
 profit under the Government of the United 
 States; but I am im willing to give my sanction 
 to any legislation which shall practically annul 
 and set at naught the solemn and deliberate 
 conclusions of the tribunal by which he was 
 con\dcted and of the President by whom its 
 findings were examined and approved." (Veto 
 message of President Arthur, July 2, 1884, Mes- 
 sages and Papers of the Presidents, vol. 8. p. 
 221.) 
 
 Veto of bill to alter military records. — 
 "The bill is objectionable because, if approved, 
 it will require that for all purposes that are con- 
 trolled by the laws of the United States, Aaron 
 Cornish shall be held and considered to have 
 been honorably discharged as assistant surgeon 
 from the Ninety-seventh New York Volunteer 
 Infantry. But it is a fact that Asst. Surg. 
 Cornish was dismissed fi-om the military serv- 
 ice of the United States as of the organiza- 
 tion mentioned September 8, 1862, in pursu- 
 ance of an order issued by competent authority. 
 In addition to this the approval of this bill will 
 require an alteration of historical records that 
 should be kept inviolate. If approved, the bill 
 will also require the issuance of a certificate of 
 honorable discharge in the case of an officer 
 who, as a matter of fact, was not honorably dis- 
 charged from the military service. It is im- 
 possible to discharge Cornish honorably now, 
 because both he and the organization of which 
 he was a member passed out of the military 
 service of the United States and beyond mili- 
 tary control more than 40 years ago. And to 
 issue a certificate to show that he is now, or was 
 at some previous time, honorably discharged 
 firom the military service of the United States 
 would be to issue a false certificate. 
 
 "It is easily possible, without any alteration 
 of historical records and without the issuance 
 of a discharge certificate that is contrary to the 
 fact, to confer upon Aaron Cornish, or any other 
 person claiming under him, any right or benefit 
 to which he, or such other person, would have 
 been entitled , if it were a fact that he actually 
 was honorably discharged from the military 
 service of the United States. If, as is pre- 
 sumably the case, it is desired to give him, or 
 some other person claiming under him, a pen- 
 sionable status, of which he or such other person 
 is now deprived by reason of the fact that he 
 was not honorably discharged, that object can 
 be accomplished with certainty, without re- 
 quiring any alteration of records and without 
 the issue of an incorrect discharge certificate, 
 by enacting a law pro\dding as follows: 
 
 " 'That in the administration of the pension 
 laws, Aaron Cornish, who was assistant surgeon. 
 Ninety-seventh New York Volunteer Infantry, 
 shall hereafter be held and considered to have 
 been discharged honorably from the military 
 service of the United States as a member of said 
 organization on the eighth day of September, 
 eighteen hundred and sixty-two.' " (Veto 
 message of President Taft, Mar. 28, 1910, 
 quoting and adopting report of The Adjutant 
 General of the Army; S. Doc. No. 464, 61st 
 Cong., 2d sess.; 45 Cong. Rec, pt. 4, pp. 3848, 
 3849.) 
 
 Veto of bill to restore to active list 
 oflS,cer voluntarily retired.— "I inclose 
 herewith copy of reports of the Secretary of the 
 Navy and of the Chief of the Bureau of Na\'iga- 
 tion adverse to the signature of this bill. The 
 report of the Chief of the Bureau of Navigation 
 gives the precedents which this bill follows. 
 In each case special reasons were believed to 
 exist at the time why a special exception should 
 be made, but actual experience has shown that 
 in each case the restoration served as a prece- 
 
 35 
 
Art. I, Sec. 8. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Naturalization. 
 
 ment, and I see no reason why that action 
 should be reversed. The board was composed 
 of well-known officers, and I believe that their 
 recommendation was. in accordance \vith their 
 oaths, based upon the relative standing and 
 special fitness of the officer concerned, as well 
 as the efficiency of the naval service. If this 
 bill for the rslief of Commodore Veeder is ap- 
 proved, it will probably be followed by others 
 of a similar nature for the retm-n of all officers 
 who have been placed on the retired list in 
 accordance with the provisions of the personnel 
 act, and it is my opinion that the enacting of 
 this measure into a law will have a most inju- 
 rious effect upon the naval service." (Veto 
 message of President Taft, Mar. 4, 1911, 46 
 Cong. Rec., pt. 5, p. 4290. 61st Cons:., 3d sess. 
 But see act Mar. 3, 1915, 38 Stat., 939, making 
 provision for restoration to active list of all 
 officers compulsorily retired under the personnel 
 act of Mar. 3, 1899; and see act of Aug. 29, 
 1916, 39 Stat., 602, 603, making provision for 
 restoration to the active list of Commodore 
 Veeder and other officers named therein. 
 
 Veto of bill to make retired oflB^cers of 
 Army not amenable to court-martial. — 
 See note to section 1457, Revised Statutes. 
 
 dent for the restoration of somebody else where 
 the cause was not quite so strong. Commander 
 White was transferred to the retired list three 
 years ago on his own application. Ho now 
 seeks reinstatemeixt. All the advantages that 
 should bo derived from the legislation under 
 which he was retired will be lost if the various 
 individuals who take advantage of it are en- 
 couraged to believe that whenever they desire 
 to undo their action that end can be achieved 
 by supplemental special legislation. I agi-ee 
 entirely with Admiral Pillsbury's statement 
 that legislation of this character does not con- 
 tribute to the best interests of the service. I 
 accordingly return the bill without my ap- 
 proval."" (Veto message of President Roose- 
 velt. Apr. 7, 1908, 42 Cong. Rec, pt. 5, p. 4503, 
 60th Cong.. 1st sess.) ' 
 
 Veto of bill to restore to active list 
 officer compulsorily retired. — "In accord- 
 ance Avith the provisions of the personnel act of 
 March 3, 1899, Capt. Veeder was placed upon 
 the retired list with the rank of commodore, 
 being one of the officers deemed by the board 
 of five rear admirals less efficient than the re- 
 maining captains on the active list. The find- 
 ing of this Doard was approved by me, acting 
 upon the recommendation of the Navy Depart- 
 
 [Clause 3. President's action on joint resolutions.] ^ Every Order, Resolu- 
 tion, or Vote to which the Concurrence of the Senate and House of Representa- 
 tives may be necessary (except on a question of Adjournment) shall be pre- 
 sented to the President of the United States; and before the Same shall take 
 Effect, shall bo approved by him, or bemg disapproved by him, shall be repassed 
 by two thirds of the Senate and House of Representatives, according to the 
 Rules and Limitations prescribed m the Case of a Bill. 
 
 Section 8. The Congress shall have Power [Clause 1. Ee venue power, 
 common defense and general welfare.] ^To lay and collect Taxes, Duties, 
 Imposts and Excises, to pay the Debts and provide for the common Defence 
 and general Welfare of the United States; but all Duties, Imposts and Excises 
 shall be uniform throughout the United States; 
 
 [Clause 2. Borrowing power.] ^ To borrow money on the credit of the 
 United States ; 
 
 [Clause 3. Power over commerce.] ^ To regulate Commerce with Foreign 
 Nations, and among the several States, and vnth the Indian Tribes; 
 
 [Clause 4. Naturalization and bankruptcies.] ■* To establish an uniform 
 Rule of Naturalization, and uniform Laws on the subject of Bankruptcies 
 throughout the United States ; 
 
 "The power of naturalization, vested in 
 Congress by the Constitution, is a power to 
 confer citizenship, not a power to take it away. 
 'A naturalized citizen,' said Chief Justice Mar- 
 shall, 'becomes a member of the society, pos- 
 sessing all the rights of a native citizen, and 
 standing, in the \-iew of the Constitution, on 
 the footing of a native. The Constitution does 
 not authorize Congress to enlarge or abridge 
 those rights. The simple power of the national 
 legislature is to prescribe a uniform rule of 
 naturalization, and the exercise of this power 
 exhausts it, so far as respects the individual. 
 
 The Constitution then takes him up, and, 
 among other rights, extends to him the capac- 
 ity of suing in the courts of the Urdted States 
 precisely under the same circumstances which 
 a native might sue.' Congress having no power 
 to abridge the rights conferred by the Constitu- 
 tion upon those who have become naturalized 
 citizens by virtue of acts of Congress, a fortiori, 
 no act or omission of Congress, as to the pro- 
 viding for the naturalization of parents or chil- 
 dren of a particular nice, can affect citizenship 
 acquired as a birthright, by virtue of the Con- 
 stitution itself, without any aid of legislation." 
 
 86 
 
Inferior Courts. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. I, Sec. 8. 
 
 deemed to have voluntarily relinquished and 
 forfeited their rights of citizensliip, as well as 
 their ri^ht to become citizens; and such desert- 
 ers shall be forever incapable of holding any 
 office of trust or profit under the United states, 
 or of exercising any rightsof citizens thereof." 
 (Sec. 1998, R. S., as amended by act Aug. 22, 
 1912, 37 Stat., 356.) 
 
 For other statutes and decisions relating 
 to citizenship and naturalization, see note to 
 Amendments, Art. XIV. 
 
 (U. S. V. Wong Kim Ark, 169 U. S., 649._ As 
 to loss of citizenship, compare Mackenzie v. 
 Hare, 239 U. S., 299.) 
 
 Naturalization of enlisted men of the 
 Navy and Marine Corps. — Special provision 
 has been made by Congress in these cases, 
 which form exceptions to the general naturali- 
 zation law. (See act May 9, 1918, 40 Stat., 
 542.) 
 
 Deserters from the military or naval 
 service, who desert in time of war, "are 
 
 [Clause 5. Coinage, weights, and measures.] ^ To coin Money, regulate the 
 Value thereof, and of foreign Coin, and fix the Standard of Weights and Meas- 
 ures ; 
 
 [Clause 6. Counterfeiting.] ® To provide for the Punishment of counter- 
 feiting the Securities and current Coin of the United States; 
 
 [Clause 7. Post ojfices and post roads.] '^ To establish Post Offices and post 
 Roads; 
 
 [Clause 8. Patents and copyrights.] ^ To promote the Progress of Science 
 and useful Arts, by securing for limited Times to Authors and Inventors the 
 exclusive Right to their respective Writings and Discoveries ; 
 
 Right of Government to use a patent. — 
 
 Congress has pro\dded that the owner of any 
 patented invention may recover reasonable 
 compensation by suit in the Court of Claims 
 for the unauthorized use thereof by the United 
 States; but that this shall not apply to any 
 device invented by any person while in the 
 employment or service of the United States, 
 or who is in such employment or ser'/ice at the 
 time of making claim, or to the assignee of any 
 such patentee. (Act June 25, 1910, 36 Stat., 
 851, as amended by act July 1, 1918, 40 Stat., 
 705. See also act Oct. 6, 1917, sec. 10 (i), 40 
 Stat., 422.) 
 
 [Clause 9. Inferior courts.] ^ To 
 Supreme Court ; 
 
 Courts-martial. — ^This clause does not ap- 
 ply to military and naval courts, which form no 
 part of the judicial system of the United States, 
 but are instrumentalities of the executive, 
 created by Congress under its power "to make 
 rules for the government and regulation of the 
 land and naval forces." (See Kurtz v. Moffitt, 
 115 U. S., 500; Dynes v. Hoover, 20 How., 78; 
 Ex parte Milligan, 4 Wall., 137; U. S. i). Macken- 
 zie, 30 Fed. Cas. No. 18313; Ex parte Hender- 
 son, 11 Fed. Cas. No. 6349; Ex parte Dickey, 
 204 Fed. Rep., 322; C. M. O. 24, 1914, p. 19.) 
 
 Judicial system of United States. — The 
 United States has been divided by Congress 
 into "judicial districts" and "judicial cir- 
 cuits." Each State comprises one or more 
 judicial districts, and in each district there is 
 a court called a District Court for which there 
 are provided one or more district judges, with 
 a few exceptions in which only one judge is 
 provided for two districts in the same State. 
 There are nine judicial circuits, each of which 
 necessarily embraces a number of judicial dis- 
 tricts. In each judicial circuit there is a Cir- 
 cuit Court of Appeals consisting of three judges, 
 who may be either circuit judges, of whom two 
 
 "It has been determined that the Govern- 
 ment of the United States has no right to use a 
 patented invention without compensation to 
 the owner, under the constitutional provision 
 that in the exercise of the power of eminent 
 domain it may take private property for public 
 use, but not without making just compensation 
 therefor. (U. S. v. Burns, 12 Wall., 246; Cam- 
 meyer v. Newton, 94 U. S., 225; James v. Camp- 
 bell, 104 U. S., 356; Hollister v. Benedict Mfg. 
 Co., 113 U. S., 59; U. S. v. Palmer, 128 U. S., 
 262; Belknap 7;.Schild, 161 U.S., 10.)" 23 Op. 
 Atty. Gen., 302.) 
 
 constitute Tribunals inferior to the 
 
 or more are authorized for each judicial circuit, 
 or any of the district judges within the circuit. 
 In addition, the justices of the Supreme Court, 
 of whom there are nine including the CMef 
 Justice, are allotted one to each circuit, and 
 are authorized to sit as judges of the Circuit 
 Court of Appeals within their respective cir- 
 cuits, being designated as the "circuit justice" 
 for the circuit. 
 
 Tlie circuit courts of appeal for the respective 
 circuits exercise appellate jurisdiction over the 
 district courts within the circuit, except that 
 in certain cases appeals and writs of error may 
 be taken direct to the Supreme Court. The 
 judgments of the circuit courts of appeal are 
 final in a great many cases. In others, appeals 
 and writs of error may be taken to the Supreme 
 Court. 
 
 In addition. Congress has established special 
 tribunals of very limited jurisdiction, such as 
 consular courts, the Court of Claims, and the 
 Court of Customs Appeals. It hasalso pro- 
 vided for courts in Alaska, District of 
 Columbia, Hawaii, Philippine Islands, and 
 Porto Rico. (See Judicial Code, act Mar. 3, 
 1911, 36 Stat., 1087.) 
 
 3T 
 
Art. I, Sec. 8. 
 
 Pt. 1. THE CONSTITUTION. 
 
 War Power. 
 
 [Clause 10. Crimes at sea and offenses against law of nations.] '° To define 
 and punish Piracies iiud Felonies committed on the high Seas, and Offenses 
 ajrainst the Law of Nations ; 
 
 The judicial power of the United States 
 embraces "all cases ol" adnuralty and mariiime 
 juiisdiclion." (Art. Ill, eec. 2, clause 1.) 
 
 Piracies and felonies committed on the 
 liigli eoas are defined and punished by the 
 Criminal Code, act of March 4, 1909, sections 
 290-310 (35 iStat., 1145-1148); offenses wilhin 
 the admiralty and maritime jurisdiction are de- 
 fined and punished by same act, sees. 272-289 
 (35 Stat., 1142^1145.) 
 
 Power of Congress to punish offenses. — 
 The Constitution contains no grant to Congress 
 of power to provide for the punishment of 
 crimes except piracies and felonies committed 
 on the high seas, offenses against the law of 
 nations, treason, and counterfeiting the securi- 
 ties and current coin of the United States. 
 Nevertheless, Congress has power to provide for 
 the punishment of other crimes within the State 
 or within the territory over which Congress has 
 plenary and exclusive jurisdiction. (Logan v. 
 U. S., 144 U. S., 283.) 
 
 Any act of Congress which plainly and di- 
 rectly tends to enhance the respect and love of 
 the citizen for the institutions of his country 
 and to quicken and strengthen his motives to 
 defend them, and which is germane to and 
 intimately connected with and appropriate to 
 the exercise of some one or all of the powers 
 granted by the Constitution to Congress, must 
 be valid. (U. S. v. Gettysburg Electric R. Co., 
 160 U.S., 679.) 
 
 The Government of the Union is not de- 
 pendent on the States for the execution of the 
 great powers assigned to it; its means are ade- 
 quate to its ends. (McCulloch v. Maryland, 
 4 Wheat., 316, 424:_ In re Debs, 158 U. S., 578.) 
 
 ImpUed power in Congress to pass laws to 
 define and punish offenses is also derived from 
 the Constitutional grant to Congress to declare 
 war, to raise and support armies, to provide 
 and maintain a na\^% and to make rules for the 
 government and regulation of the land and 
 naval forces, and to provide for organizing, 
 arming and discipUning the militia and for gov- 
 erning of such part of them as may be employed 
 in the public service. Like implied author- 
 ity is also vested in Congress from the power 
 conferred to exercise exclusive jurisdiction over 
 places purchased by the consent of the legisla- 
 
 [ Clause 11. Power to declare war 
 War, grant Letters of Marque and 
 Captures on Land and Water; 
 
 I. The War Power. 
 II. Property of Belligerents. 
 III. Acquisition and Government op Ter- 
 ritory. 
 Discipline of Army. 
 Martial Law. 
 
 IV. 
 V. 
 
 I. The War Power. 
 
 Power of Congress to declare war and 
 President's power as Commander in 
 
 ture of the State in which the same shall be for 
 the erection of forts, magazines, arsenals, dock 
 yards and other needful buildings, and from 
 the clause empowering Congress to pass all laws 
 which shall be necessary and proper for carry- 
 ing into execution the foregoing powers and all 
 other powers vested by the Constitution in 
 the Government of the United States or any 
 department or ofhcer thereof. (U. S. v. Hall, 
 98 U. S., 346; see also U. S. v. Bamow, 239 
 U. S., 77.) 
 
 Any act committed with a view to evading 
 the legislation of Congress passed in the execu- 
 tion of any of its powers, or of fraudulently 
 securing the benefit of such legislation, may 
 properly be made an offense against the United 
 States. But an act committed within a State, 
 whether for a good or a bad purpose, or whether 
 with an honest or a criminal intent, can not 
 be made an offense against the United States 
 unless it has some relation to the execution of a 
 power of Congress or to some matter within the 
 jurisdiction of the United States. An act not 
 haying any such relation is one in respect to 
 wliich the State can alone legislate. (U. S. v. 
 Fox, 95 U. S., 672.) 
 
 Miscellaneous cases. — U. S. v. White, 27 
 Fed. Rep., 203 (not necessary for Congress to 
 name offense); U. S. v. Smith, 5 WTieat., 157 
 (not necessary for Congress to define the 
 offense); U. S. v. Kelly, 11 ^Mieat., 417 (judicial 
 definition of offense not defined by Congress); 
 U. S.iJ. Holmes, 5'WTieat., 417 (offense on ves- 
 sel held by phates); U. S. v. Bowers, 5 "^Tieat., 
 198 (offense committed by foreigner on foreign 
 vessel at sea); U. S. v. Arjona, 120 U. S., 484 
 (offense against law of nations). See also, U. S. 
 t'. Palmer, 3 WTieat., 610; U. S. v. Wiltberger, 
 5 WTieat., 76; U. S. v. Pirates, 5 TMieat., 184; 
 U. S. 1'. Bevans, 3 Wheat., 336. 
 
 "That the laws of nations constitute a 
 part of the laws of the land is established from 
 the face of the Constitution, upon prmciple and 
 by authority. But the laws of war constitute 
 much the greater part of the law of nations. 
 Like the other laws of nations, they exist and 
 are of binding force upon the departments and 
 citizens of the Government, though not defined 
 by any law of Congress." (11 Op. Attv. Gen., 
 I 299.) 
 
 and regulate captures, etc.] "To declare 
 Reprisal, and make Kules concerning 
 
 Chief. — "Congress has the power not only to 
 raise and support and govern armies but to 
 Tcleclare war. It has, therefore, the power to 
 provide by law for carrying on war. This 
 power necessarily extends to all legislation 
 essential to the prosecution of war with \dgor 
 and success, except such as interferes with the 
 command of forces and the conduct of cam- 
 paigns. That power and duty belong to the 
 President as Commander in Chief. Both these 
 powers are derived from the Constitution, but 
 neither is defined by that instrument. Their 
 
 38 
 
Wax Power. 
 
 Pt. 1. TEE CONSTITUTION. 
 
 Art. I, Sec. 8. 
 
 extent must be determined by their nature 
 and by the principles of our institutions. The 
 power to make the necessary laws is in Con- 
 gress, the power to execute in the President. 
 Both powers imply many subordinate and 
 auxiliary powers. Each includes all authority 
 essential to its due exercise. But neither 
 can the President in war more than in 
 peace intrude upon the proper authority of 
 Congi-ess, nor Congi-ess upon the proper author- 
 ity of the President. Both are servants of the 
 people, whose will is expressed in the funda- 
 mental law. Congress can not direct the con- 
 duct of campaigns, nor can the President or any 
 commander under him, without the sanction of 
 Congress, institute tribunals for the trial and 
 pimishment for offenses, either of soldiers or 
 civilians, unless in cases of a controlling neces- 
 sity which justifies what it compels, or at least 
 insures acts of indemnity from the justice of 
 the legislature." (Ex parte Milligan, 4 Wall., 
 2, 139, concurring opinion of four justices; see 
 also Swaim r. U. S., 28 Ct. Cls., 173, 221, 
 aflSrmed, 165 U. S., 553; and see note to Art. II, 
 sec. 2, clause 1.) 
 
 Power of President in advance of con- 
 gressional action. — "If a war be made by 
 invasion of a foreign nation, the President is not 
 only authorized but bound to resist force by 
 force. He does not initiate the war, but is 
 bound to accept the challenge without waiting 
 for any special legislative authority." ''Prize 
 Cases, 2 Black, 635.) 
 
 "WTiether the President in fulfilling his 
 duties as Commander in Chief in suppressing an 
 insurrection has met with such armed_ hostile 
 resistance and a civil war of such alarming pro- 
 portions as will compel him to accord to them 
 the character of belligerents is a question to be 
 decided by him, and this court must be gov- 
 erned by the decisions and acts of the political 
 department of the Government to which this 
 power was intrusted. He must determine 
 what degree of force the crisis demands. The 
 proclamation of blockade is itself official and 
 conclusive evidence to the coiu"t that a state 
 of war existed which demanded and authorized 
 a recourse to such a measiu-e, under the cir- 
 cumstances peculiar to the case." (Prize 
 Cases, 2 Black, 635.) 
 
 "A state of actual war may exist without 
 any formal declaration of it by either party; 
 and this is true of both a civil and a foreign 
 war." (Prize Cases, 2 Black, 635.) 
 
 "That a foreign nation, or insiu-rectionary 
 body of citizens, may by invasion of the United 
 States or by other acts bring about a condition 
 of affairs which will warrant the President in 
 declaring, in advance of congressional legisla- 
 tion, that a state of war exists, was asserted by 
 the Supreme Coiu-t in the Prize Cases." (2 
 Willoughby Const., 796.) [That power of de- 
 claring war is exclusive with Congress, see 
 Perkins v. Rogers, 35 Ind., 167.] 
 
 "The question in the present case is. When 
 did the Kebellion begin and end? * * * 
 The proclamation of intended blockade by the 
 President may, therefore, be assumed as mark- 
 ing the first of these dates, and the proclama- 
 tion that the war had closed as marking the 
 second." (The Protector, 12 Wall., 700.) 
 
 [The President's proclamations of intended 
 blockade were issued on April 19 and 27, 1861; 
 see also 102 U. S., 426, 438; 9 Wall., 71; 15 Op. 
 Atty. Gen., 572, 574; sees. 1997 and 4749, R. S.; 
 proclamations that the war had closed were 
 issued on April 2 and August 20, 1866.] 
 
 Extent of war power. — "The measures to 
 be taken in carrying on war and to suppress in- 
 surrection are not defined. The decision of all 
 such questions rests wholly in the discretion of 
 those to whom the substantial powers involved 
 are confided by the Constitution. In the 
 latter case the power is not limited to \dctories 
 in the field and to the dispersion of the insur- 
 rectionary forces. It carries with it inherently 
 the power to guard against the immediate re- 
 newal of the conflict and to remedy the evils 
 which have arisen from its rise and progress." 
 (Stewart v. Kahn, 11 Wall., 493.) 
 
 The power to prohibit the liquor traffic as a 
 means of increasing war efficiency is part of 
 the war power of Congress. (Hamilton v. 
 Kentucky Distilleries Co., 251 U. S., 146; Rup- 
 pert V. Caffey, 251 U. S., 264.) 
 
 Congress has the authority to raise and sup- 
 port armies and to make rules and regulations 
 for the protection of the health and welfare of 
 those composing them against the evils of 
 prostitution, and may leave the details of such 
 regulations to the Secretary of War. A citizen 
 may legally be convicted of setting up a house 
 of ill fame within five miles of a military 
 station, that being the distance designated by 
 the Secretary of War in regulations made by 
 him under the act of May 18, 1917, section 13 
 (40 Stat., 76). (McKinley v. U. S., 249 U. S., 
 397.) 
 
 II. Property of Belligerents. 
 
 Effect of declaration of war. — "The 
 people of the two countries become immedi- 
 ately the enemies of each other— all intercourse, 
 commercial or otherwise, between them un- 
 lawful—all contracts existing at the com- 
 mencement of the war suspended, and all made 
 during its existence utterly void. The insur- 
 ance of enemies' property, the drawing of bills 
 of exchange or purchase on the enemies' coun- 
 try, the remission of bills or money to it are 
 illegal and void. Existing partnerships be- 
 tween citizens or subjects of the two countries 
 are dissolved and, in fine, interdiction of trade 
 and intercourse, direct or indirect, is absolute 
 and complete by the mere force and effect of 
 war itself. All the property of the people of the 
 two countries on land or sea are subject to cap- 
 ture and confiscation by the adverse party as 
 enemies' property, with certain qualifications 
 as it respects property on land (Brown i;. U. S . , 8 
 Cranch, 110) . All treaties between the belliger- 
 ent parties are annulled. The ports of the 
 respective countries may be blockaded, and 
 letters of marque and reprisal granted as rights 
 of war, and the law of prizes as defined by the 
 law of nations comes into full and complete 
 operation, resulting from maritime captures, 
 jure belli. War also effects a change in the 
 mutual relations of all States or countries, not 
 dii-ectly, as in the case of belligerents, but im- 
 mediately and indirectly, though they have 
 no part in the contest, but remain neutral." 
 
 39 
 
Art. I, Sec. 8. 
 
 Pt. 1. THE CONSTITUTION. 
 
 War Power. 
 
 (Prize Cases, 2 Black, 635, 682, dissenting 
 oi)iiiion Justice Nelson; see also McCormick v. 
 iluinphrov, 27 Ind., 154; Perkins v. Rogers, 35 
 Ind.. 1(17. ■) 
 
 Confiscation of enemy property. — "War 
 gives the right to confiscate l)ut does not of it- 
 self confiscate tlie pro]ierty of tlie enemy." 
 (Brown v. U. S., 8 Crunch, 110; see also Britton 
 V. Butler, 4 I'ed. Cas. No. 1903; Wagner v. 
 Schooner Juanita, 28 Fed. Cas. No. 17039; 
 Miller v. U. S., 11 Wall., 304; Brown v. Hiatt, 
 4 Fed Cas. No. 2011.) 
 
 ''^^^len war breaks out the question what 
 shall be done with enemy property in oiir 
 countr\' is a question rather of policy than of 
 law. The rule which we apply to the property 
 of our enemy will be applied by him to the 
 property of our citizens. Like all other ques- 
 tions of policy it is proper for the consideration 
 of a department which can modify it at will; 
 not for the consideration of a department which 
 can pursue only the law as it is written. It is 
 proper for the consideration of the legislature, 
 not of the executive or judiciary." (Brown 
 V. U. S.. SCranch, 110.) 
 
 Authority of military commander to 
 seize private property. — "Private property 
 may be taken by a military commander to pre- 
 vent it from falling into the hands of the enemy 
 or for the purpose of converting it to the use of 
 the public; but the danger must be immediate 
 and impending, or the necessity urgent for the 
 public service such as will not admit of delay 
 and where the action of the civil authority 
 would be too late in providing the means which 
 the occasion calls for. The facts as they ap- 
 peared to the officer must fiirnish the rule for 
 the application of these principles. But the 
 officer can not take possession of private prop- 
 erty for the purpose of insuring the success of a 
 distant expedition upon which he is about to 
 march." (Mitchell v. Harmony, 13 How., 115.) 
 
 "If private property there [in conquered 
 territory'] was taken by an officer or a soldier of 
 the occupying army, acting in his military char- 
 acter, when by the laws of war or the proclama- 
 tion of the commanding general it should have 
 been exempt from seizure, the owner could 
 haA-e complained to that commander, who might 
 have ordered restitution or sent the offending 
 party before a military tribunal, as circum- 
 stances might have required, or he could have 
 had recourse to the Government for redress. 
 But there can be no doubt of the right of the 
 Army to appropriate any property there, 
 although belonging to private individuals, 
 which was necessary for its support or conven- 
 ient for its use. This was a belligerent right 
 which was not extinguished by the occupation 
 of the country, although the necessity for its 
 exercise was thereby lessened. However ex- 
 empt from seizure on other grounds private 
 property there may have been, it was always 
 subject to be appropriated when required by 
 the necessities or convenience of the Army, 
 though the owTier of property taken in such case 
 may nave had a jiist claim against the Govern- 
 ment for indemnity." (Dow v. Johnson, 100 
 U. S., 158, 167; compare, Heflebower v. U. S., 
 21 Ct. Cls., 2.37 ; U. S. v. Pacific R. Co., 120 U. S., 
 239; Alexander v. U. S., 39 Ct. Cls., 383; 13 Op. 
 Atty. Gen.,111; Wigging's Case, 3 Ct. Cls., 413.) 
 
 "Extraordinary and unforeseen occasions 
 arise, however, beyond a doubt, in cases of ex- 
 treme necessity in time of war or of immediate 
 or impending danger in which pri\ate ])roperty 
 may be impressed into the public service or 
 may be seized and appropriated to the public 
 use or may even be destroyed without the con- 
 sent of the owner. * * * The rule is well set- 
 tled that the officer taking private property 
 for such a purpose, if the emergency is fully 
 proved, is not a trespasser and that the Govern- 
 ment is bound to make full compensation to 
 the owner." (U. S. v. Russell, 13 Wall., 623.) 
 
 Status of inhabitants in enemy coun- 
 try. — "The district of country declared by the 
 constituted authorities during the late Civil War 
 to be in insurrection against the Government of 
 the United States was enemy territory, and all 
 the people residing within such district were, 
 according to public law and for all purposes 
 connected with the prosecution of the war, 
 lial)le to be treated by the United States, 
 pending the war and while they remained 
 within the lines of insurrection, as enemies 
 without reference to their personal sentiments 
 and dispositions." (Ford v. Surget, 97 U. S., 
 594.) 
 
 "It is said that, though remaining in rebel 
 territory, Mrs. Alexander has no personal 
 sympathy with the rebel cause and that her 
 property therefore can not be regarded as 
 enemy property; but the court can not inquire 
 into the personal character and dispositions of 
 individual inhabitants of enemy territory. We 
 must be governed by the principle of public 
 law so often announced by this Ijench as appli- 
 cable alike to civil and international wars, that 
 all the people of each State or district in insur- 
 rection against the United States must be re- 
 garded as enemies until, by action of the 
 legislature and the executive, or otherwise, 
 that relation is thoroughly and ])ermanently 
 changed." (Mrs. Alexander's Cotton, 2 Wall., 
 404; see also. Miller 3'. U. S., 11 Wall., 268, sus 
 taining laws providing for confiscation of pri- 
 vate property owned by friendly as well as 
 hostile inhabitants of the Confederate States.) 
 
 III. Acquisition and Government of 
 Territory. 
 
 Power to acqviire territory. — "The genius 
 and character of our institutions are peaceful, 
 and the power to declare war was not conferred 
 upon Congress for the purposes of aggression or 
 aggrandizement, but to enable the General Gov- 
 ernment to vindicate by arms if it should be- 
 come necessary its own rights and the rights of 
 its citizens. A war, therefore, declared by 
 Congress can never be presumed to ])e waged 
 for the purpose of conquest or the acquisition 
 of territory; nor does the law declaring the war 
 imply an authority to the President to enlarge 
 the limits of the United States by subjugating 
 the enemy's territory. The United States, it 
 is true, may enlarge its boundaries by conquest 
 or treaty and may demand the cession of ter- 
 ritory as a condition of peace in order to in- 
 demnify its citizens for the injuries they have 
 suffered, or to reimburse the Government for 
 the expense of the w^ar; but this can be done 
 only by the treaty-making power or the legisla- 
 
 te 
 
War Power. 
 
 Ft. 1. THE CONSTITUTION. 
 
 Art. I, Sec. 8. 
 
 tive authority, and is not a part of the power 
 conferred upon the President by the declara- 
 tion of war. His duty and power are purely 
 military. * * * He may invade the hostile 
 country and subject it to the sovereignty and 
 authority of the United States; but his con- 
 quests do not enlarge the boundaries of this 
 Union nor extend the operations of our insti- 
 tutions and laws beyond the limits before 
 assigned to them by the legislative power." 
 (Fleming v. Page, 9 How., 603.) 
 
 "The Constitution confers absolutely upon 
 the Government of the Union the power of 
 making war and of making treaties; conse- 
 quently that Government possesses the power 
 of acquiring territory, either by conquest or 
 treaty." (American Insurance Co. v. Canter, 
 1 Pet., 511.) 
 
 "The war power and the treaty-making 
 power each carries with it authority to acquire 
 new territory." (Stewart v. Kahn, 11 Wall., 
 493.) 
 
 '•The power to acquire territory, either by 
 conquest or treaty, is vested by the Consti- 
 tution in the United States." (U. S. v. Huck- 
 abee, 16 Wall.. 414.) 
 
 The port of Tampico, Mexico, while in the 
 military possession of the United _ States and 
 governed by its military authorities acting 
 under the orders of the President, was not a 
 part of the United States and did not cease to 
 be a foreign country in the sense in which 
 these words are used in the acts of Congress. 
 '•It is true that when Tampico had been cap- 
 tured and the state of Tamaulipas subjugated, 
 other nations were bound to regard the country 
 while our possession continued as the territory 
 of the United States and to respect it as such. 
 
 * * * As regards all other nations it was a part 
 of the United States and belonged -to them as 
 exclusively as the territory included in our 
 established boundaries. But yet it was not a 
 part of this Union. For every nation which 
 acquires territory by treaty or conquest holds 
 it according to its own institutions and laws. 
 
 * * * The power of the President under which 
 Tampico and the state of Tamaulipas were 
 conquered and held in subjection was simply 
 that of a military commander prosecuting a 
 war waged against a public enemy hy the au- 
 thority of his Government." Tampico there- 
 fore continued to be a foreign port "nor did 
 our laws extend over it." (Fleming v. Page, 
 9 How., 603.) 
 
 Status of Porto Rico while under military 
 government pre\'ious to ratification of treaty 
 of peace ceding the island to the United States: 
 '"During this period the United States and 
 Porto Rico were still foreign countries with 
 respect to each other. * * * The fact that not- 
 withstanding the military occupation of the 
 United States Porto Rico remained a foreign 
 country within the revenue laws is established 
 by the case of Fleming v. Page." (Dooley v. 
 U. S.,182U. S.,222.) 
 
 "Cuba is none tlie less foreign territorj^ 
 ■within the meaning of the act of Congi-ess, 
 because it is under a military government 
 appointed by and representing the President 
 in the work of assisting the inhabitants of that 
 island to establish a government of their own 
 
 under which as a free and independent people 
 they may control their own affairs without 
 interference by other nations." As between 
 the United States and all foreign nations, Cul)a 
 was to be treated as if it were conquered ter- 
 ritory. '"But as between the United States 
 and Cuba, that island is territory held in trust 
 for the inhabitants of Cuba to whom it right- 
 fully belongs." (Neely r. Henkel, 180 U. S., 
 109; see also 23 Op. Atty. Gen., 120.) 
 
 Government of conquered territory dur- 
 ing war. — By the conquest and military occu- 
 pation of the port of Castine, Me., by the Brit- 
 ish during the War of 1812, "the enemy ac- 
 quired that firm possession which enabled him 
 to exercise the fullest rights of sovereignty over 
 that place. The sovereignty of the United 
 States over the territory was, of course, sus- 
 pended and the laws of the United States could 
 no longer be rightfully enforced there or be 
 obligator upon the inhabitants who remained 
 and submitted to the conquerors. By the sur- 
 render the inhabitants passed under a tempo- 
 rary allegiance to the British Government and 
 were bound by such laws, and such only, as it 
 chose to recognize and impose. From the 
 nature of the case no other laws could be ol)- 
 ligator^' upon them; for where there is no pro- 
 tection or allegiance or sovereignty there can 
 be no claim to obedience." (U. S. v. Rice, 4 
 Wheat., 246.) 
 
 "Although the city of New Orleans wag con- 
 quered and taken possession of in a civil war 
 waged on the part of the United States to put 
 do'ma an insurrection and restore the supremacy 
 of the National Government in the Confederate 
 States, that Government had the same power 
 and rights in territoiy held by conquest as if 
 the territory had belonged to a foreign country 
 and had been subjugated in a foreign war. 
 * * * In such cases the conquering power 
 has a right to displace the preexisting authority 
 and to assume to such an extent as it may deem 
 proper the exercise by itself of all the powers 
 and functions of government. It may appoint 
 all the necessary officers and clothe them with 
 designated powers, larger or smaller, according 
 to its pleasure. It may prescribe the revenues 
 to be paid and apply them to its own use or 
 otherwise. It may do anything necessary to 
 strengthen itself and weaken the enemy. 
 There is no limit to the powers that may be 
 exerted in such cases saxe those which are 
 foimd in the laws and usages of war. * * * 
 In such cases the laws of wai- take the place of 
 the Constitution and laws of the United States 
 as applied in time of peace." (New Orleans v. 
 New York Mail S. S. Co., 20 Wall., 387; Dooley 
 V. U. S., 182 U.S., 222.) 
 
 "WTiile his [military commander's] power is 
 necessarily despotic, this must be imderstood 
 rather in an administrative than in a legisla- 
 tive sense. Wliile in legislating for a con- 
 quered country he may disregard the laws of 
 that country, he is not wholly above the la'ws 
 of his own. * * * His power to adminis- 
 ter would be absolute, but his power to legis- 
 late would not be •without certain restrictions — 
 in other words, they would not extend be- 
 yond the necessities of the case. * * * . I* 
 was said that the courts established in Mexico 
 
 41 
 
Art. I, Sec. 8. 
 
 Ft. 1. THE CONSTITUTION. 
 
 War Power. 
 
 duruiR the war 'were nothuig more than the 
 apentii of the military- power to a.s.sist it in pre- 
 eervLnp order iji tlie conquered territoiy and to 
 protect the ijihabitants in their persons ajid 
 property while it was occupied by the Ameri- 
 (■;ui arms. They were subject to the militar\^ 
 power luid tlieir deci.sions under its control 
 whenever the commandinfi; officer thou<i;ht 
 proper to interfere. They were not courts of 
 the United States and had no rij^ht to adjudi- 
 cate upon a question of 'prize or no prize,' 
 althoupii Congress in the exercise of its general 
 authority in relation to the national courts 
 would have power to validate their action." 
 (Dooley v. U. S., 182 U. S., 222.) 
 
 "So long as the war continued it can not be 
 denied that he [the President] might institute 
 temporary goA-ernments in insurgent districts 
 occupied by the national forces or take meas- 
 ures in any States for the restoration of State 
 goA'ernments faithful to the Union, employing, 
 however, in such efforts only such means and 
 agents as were authorized bv constitutional 
 laws." (Texas v. White, 7 Wall., 700.) 
 
 "The mimicipal laws — that is, such as affect 
 private rights of persons and property and pro- 
 vide for the pimishment of crime — are gener- 
 ally allowed to remain in force and to be ad- 
 ministered by the ordinary tribunals as they 
 were administered before the occupation. 
 They are considered as continuing unless sus- 
 pended or superseded by the occupying bellig- 
 erent. "_ (Dow V. Johnson, 100 U. S., 158.) 
 
 "While we see no reason to doubt the con- 
 clusion of the court that the port of Tampico 
 [during its occupation by the United States in 
 the Mexican War] was still a foreign port, it is 
 not perceived why the fact that there was no 
 act of Congress establishing a customhouse 
 there or authorizing the appointment of a col- 
 lector should have prevented the collector 
 appointed by the military commander from 
 granting the usual documents required to be 
 issued to a vessel engaged in the coasting trade. 
 A collector, though appointed by a miLitai-y 
 commander, may be presumed to have the 
 ordinary power of a collector under an act of 
 Congress, with authority to grant clearances to 
 ports within the United States, though, of 
 course, he would have no power to make a 
 domestic port of what was in reality a foreign 
 port." (De Lima v. Bidwell, 182 U. S., 1.) 
 
 Government of conquered and ceded ter- 
 ritory after war. — See note to Article IV, 
 section 3, clause 2. 
 
 IV. Discipline op Army. 
 
 Jurisdiction over persons in military 
 service during war. — "The question here is, 
 What is the law which governs an army invad- 
 ing an enemy's country? It is not the ci\-il 
 law of the invaded coimtry. It is not the civil 
 law of the conquering country. It is military 
 law — the law of war — and its supremacy for the 
 protection of the officers and soldiers of the 
 Army when in service in the field in the ene- 
 my's country is as essential to the efficiency of 
 the Army as the supremacy of the civil law at 
 home and in time of peace is essential to the 
 preservation of liberty." (Dow v. Johnson, 
 100 U. S., 158, 170.) 
 
 "This doctrine of nonliability to the tribu- 
 nals of the invaded country for acts of warfare 
 is as applicable to membere of the Confederate 
 Army when in Pennsylvania as to members of 
 the National Army when in the insurgent 
 States. The officers or soldiers of neither Army 
 could be called to account civilly or crimhially 
 in tliose tribunals for such acts, whether those 
 acts resulted in the destruction of property 
 or the destruction of life. Nor could they 
 be required by those tribunals to explain or 
 justify their conduct upon any averment of the 
 injured party that the acts complained of were 
 unauthorized by the necessities of war." 
 (Dow V. Johnson, 100 U. S., 158, 1G9.) 
 
 Courts-martial did not have exclusive juris- 
 diction to try persons in the Army for offenses 
 punishable by State laws during the Civil War 
 while they were in States "occupying as mem- 
 bers of the Union their normal and constitu- 
 tional relation to the Federal Government, in 
 which the supremacy of that Government was 
 recognized and the civil courts were open and 
 in the undisturbed exercise of tlieir jurisdiction. 
 WTien the armies of the United States were in 
 the territory of insurgent States, banded to- 
 gether in hostility to the National Government, 
 and making war against it — in other words, 
 when the armies of the United States were in the 
 enemy's country — the military tribunals men- 
 tioned had imder the laws of war and the 
 authority conferred by the section named ex- 
 clusive jurisdiction to try and punish offenses 
 of every grade committed by persons in the 
 military service. Officers and soldiers of the 
 armies of the Union were not subject during the 
 war to the laws of the enemy or amenable to his 
 tribunals for offenses committed by them. 
 They were answerable only to tlieir o"wn Gov- 
 ernment and only by its laws as enforced by its 
 armies could they be punished. * * * The 
 fact that when the offense was committed for 
 which the defendant was indicted the State of 
 Tennessee was in the military occupation of the 
 United States with a military governor at its 
 head appointed by the President can not alter 
 this conclusion. Tennessee was one of the in- 
 surgent States forming the organization known 
 as the Confederate States, against which the 
 war was waged. Her territory was enemy's 
 coimtry, and its character in this respect was not 
 changed until long afterwards * * *. The 
 laws of the State for the punishment of crime 
 were continued in force only for the protection 
 and benefit of its own people." (Coleman v. 
 Tennessee, 97 U. S., 513, 515; see also Tennes- 
 see V. Hibdom, 23 Fed. Rep., 795; 24 Op. Atty. 
 Gen., 570.) 
 
 When the armies of the United States are in 
 the enemy's country, the established military 
 tribunals of the United States have under the 
 laws of war and statutory authority exclusive 
 jurisdiction to try and pimish offenses of every 
 grade committed by persons in the military 
 service. (24 Op. Atty. Gen., 570, citing Cole- 
 man V. Tennessee, 97 U. S., 509.) 
 
 "While it is true that the jurisdiction of mili- 
 tary tribunals is not exclusive in time of peace 
 and in territory where the supremacy of the 
 United States is recognized and the relations 
 between the local government and the National 
 Government normal, and where also the exer- 
 
 42 
 
War Power. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. I, Sec. 8. 
 
 cise of jurisdiction of the local ciAdl courts is not 
 disturbed, it is equally true that when the 
 armies of the United States are in hostile terri- 
 tory, and as in the present case engaged in 
 actual warfare, the jurisdiction of such tribunals 
 over such offenses is exclusive ; and it is evident 
 from the decisions cited that in reference to the 
 present question [Philippine insurrection] the 
 country was none the less 'enemy's country' 
 and the territory hostile because it was harassed 
 by insiurection against a sovereignty perfect in 
 law rather than attacked or defended by a recog- 
 nized belligerent." (24 Op. Atty. Gen., 570.) 
 
 "It is well settled that a foreign army per- 
 mitted to march through a friendly country or 
 to be stationed in it by authority of its sovereign 
 or government is exempt from its civil and 
 criminal jurisdiction * * *. Much more 
 must this exemption prevail where a hostile 
 army invades an enemy's country. There 
 would be something singularly absurd in per- 
 mitting an officer or soldier of an invading army 
 to be tried by his enemy whose country it had 
 invaded. The same reasons for his exemption 
 from criminal prosecution apply to civil pro- 
 ceedings. There would be as much incon- 
 gruity and as little likelihood of freedom from 
 the irritations of the war in civil as in criminal 
 proceedings prosecuted during its continuance. 
 In both instances, from the very nature of war 
 the tribunals of the enemy must be without 
 jurisdiction to sit in judgment upon the military 
 conduct of the officers and soldiers of the in- 
 vading army * * *. It is manifest that if 
 officers or soldiers of the Army could be required 
 to leave their posts and troops upon the sum- 
 mons of every local tribunal on pain of a judg- 
 ment by default against them which at the ter- 
 mination of hostilities could be enforced by suit 
 in their own States, the efficiency of the Army as 
 a hostile force would be utterly destroyed." 
 (Dow V. Johnson, 100 U. S., 158, 165.) 
 
 " Nor is the position of the invading belligerent 
 affected or his relation to the local tribunals 
 changed by his temporary occupation and 
 domination of any portion of the enemy's coun- 
 try * * *_ Ti^e mimicipal laws — that ia, 
 such as affect private rights of persons and 
 property and pro\dde for the punishment of 
 crime — are generally allowed to remain in force 
 and to be administered by the ordinary tribu- 
 nals as they were administered before the occu- 
 pation. They are considered as continuing un- 
 less suspended or superseded by the occupying 
 belligerent. But their continued enforcement 
 is not for the protection or control of the army 
 or its officers or soldiers. These remain subject 
 to the laws of war and are responsible for their 
 conduct only to their own government and the 
 tribunals by which those laws are admmistered. 
 If guilty of wanton cruelty to persons or of un- 
 necessary spoliation of property or of other acts 
 not authorized by the laws of war, they may be 
 tried and pimished by the military tribunals. 
 They are amenable to no other tribunal except 
 that of public opinion, which it is to be hoped 
 will always brand with infamy all who author- 
 ize or sanction acts of cruelty and oppression." 
 (Dow V. Johnson, 100 U. S., 158; see also 24 Op. 
 Atty. Gen., 570.) 
 
 An officer of the Army may be sued in the 
 courts of the United States for vmauthorized 
 seizure of the property of a citizen traveling 
 with the Army as a trader during the war with 
 Mexico. "The trespass was committed out of 
 the limits of the United States. But an action 
 may be maintained in the circuit court for any 
 district in which the defendant may be found 
 upon process against him where the citizenship 
 of the respective parties gives jurisdiction to a 
 court of the United States. " (Mitchell v. Har- 
 mony, 13 How., 115.) 
 
 The validity of a seizure by a United States 
 officer in command of troops while in an insur- 
 gent State could not be tried in a municipal 
 court in a common-law proceeding, where the 
 property seized belonged to an enemy, as such 
 seizure was an act of war and no action can be 
 maintained in such court against the captor of 
 booty. This conclusion does not conflict with 
 the ruling of the Supreme Court in Mitchell v. 
 Harmony, as there the property in question be- 
 longed to a citizen and not to an enemy. (Cool- 
 idge V. Guthrie, 6 Fed. Cas. No. 3185') 
 
 An officer of the Federal Army was sued in 
 New Orleans for seizure of private property by 
 a subordinate officer under his authority, 
 alleged to be a wanton abuse of power. Judg- 
 ment was entered against defendant, with in- 
 terest and costs. Suit was brought on this 
 judgment in the Federal court for the district 
 of Maine and judgment entered by that court 
 for $2,659.67 and costs. This was reversed by 
 the Supreme Court on ground that lower courts 
 were without jurisdiction. (Dow v. Johnson, 
 100 U. S., 158.) 
 
 An officer in the Army of the United States 
 who, while operating in the Philippines during 
 the insurrection in those islands and while the 
 government of military occupation was in force 
 therein, committed homicide against a native 
 of those islands, was amenable only to the laws 
 of war and could not be tried by the civil courts 
 of those islands or of the United States; and 
 having left the military service, he could not be 
 tried for the offense by a military court. A 
 court-martial has no jurisdiction over an officer 
 after he has left the service, and a military com- 
 mission has no jurisdiction to try such officer 
 after peace has been proclaimed. (24 Op. 
 Atty. Gen., 570.) [^\^lile the United States 
 was not at war with any recognized power dur- 
 ing the Philippine insurrection, nevertheless a 
 state of war existed for certain purposes as to 
 all the military forces of the United States 
 directly engaged in the suppression of said in- 
 surrection (7 Comp. Dec, 345); see note to 
 section 290, Revised Statutes.] 
 
 An officer of United States Volunteers was 
 charged with having deliberately murdered a 
 brother officer during the Mexican War at a 
 place in Mexico occupied by the United States 
 troops and under the jurisdiction of the United 
 States. He escaped to the United States during 
 the progress of his trial by a military commis- 
 sion. Held, that he could not be tried by any 
 civil court of the United States; and the vol- 
 unteer forces to which he belonged having been 
 disbanded and mustered out of the service, he 
 could not be brought to trial by a military court 
 
 54641°— 22- 
 
 43 
 
Art. I, Sec. 8. 
 
 rt. 1. THE CONSTITUTION. 
 
 War Power. 
 
 as for a military offense. "However much it is 
 to be rej^rotted that the extraordinary case of 
 Capt. Foster should escape a judicinf or mili- 
 tary investigation, it is of iiifiiiitoly hit^hor 
 moment that the constitutional princinlos of 
 the Government as wisely exi)()undcd oy the 
 judiciary should be upheld and enforced. If 
 the country hereafter should be likely to be 
 placed in circumstances under which a similar 
 case might arise. Congress can easily pro\'ide 
 against a recurrence of the diliiculties of the 
 present case." (5 Op. Atty. Gen., 55.) 
 
 V. Martial Law. 
 
 Military jurisdiction over civilians in 
 time of war. — "There are under the Consti- 
 tution three kinds of military juri.sdiction: One 
 to be exercised both in peace and war; another 
 to be exercise<l in time of foreign war without 
 the boimdaries of the United States, or in time 
 of rebellion and civil war within the States or 
 districts occujiied by rebels treated as belliger- 
 ents; and a third to be exercised in time of 
 invasion or insurrection within the limits of the 
 United States, or during rebellii)n within the 
 limits of States maintaining adhesion to the 
 National Government, when the i)ublic danger 
 requires its exercise. The first of these may be 
 called jurisdiction under the military law, and 
 is found in acts of Congress prescribing rules 
 and articles of war, or otherwise providing for 
 the government of the national forces; the sec- 
 ond may be distinguished as military govern- 
 ment, superseding, as far as may be deemed 
 expedient, the local law, and exercised by the 
 military commander, under the direction of the 
 President, Avith the express or iniplied sanction 
 of Congress: while the third may be denomi- 
 nated martial law proper, and is called into 
 action by Congress or tem]iorarily when the 
 action of Congress can not be invited, in the 
 case of justifying or excusing peril, by the 
 President, in times of insurrection or invasion, 
 or of civil or foreign war, within districts or 
 localities whose ordinary law no longer ade- 
 quately secure? pubUc safety and private 
 rights." (Ex parte Milligan, 4 Wall., 2, 141, 
 concurring opinion of four justices.) 
 
 " Martial law is the law of military ne- 
 cessity in the actual presence of war. It is 
 administered by the general of the Army, and 
 is in fact his will." (U. S. v. Diekelman, 92 
 U. S., 520. For other definitions, see 8 Op. 
 Atty. Gen., 365; In re Egan, 8 Fed. Caa. No. 
 4303; In re Ezeta, C2 Fed. Rep., 972.) 
 
 "\Miat has been called the paramount law 
 of self-defense, common to all countries, has 
 established the rule that whatever force is 
 necessary is also lawful. 'Whatever force is 
 necessary for self-defense is also lawful. This 
 law, applied nationally, is the martial law, 
 which is an offshoot of the common law, and 
 although ordinarily dormant in peace, may be 
 called forth by insurrection or invasion.' " 
 (Commonwealth v. Shortall, 206 Pa. St., 165; 
 65 L. R. A., 193.) 
 
 "The right in the miUtary officer to govern 
 by martial law, as we have said, arises upon 
 the fact of existing or immediately imjiending 
 force at a given place and time, against legal 
 authority, which the civil authority is incom- 
 
 petent to overcome; and it is exercised pre- 
 cisely u])on the ])rinciple on which self-defense 
 justiiies the u.se of force by individuals. * * * 
 That is, thero are cases where force mu.st be 
 resisted by force, instead of waiting for the 
 civil authorities. * * * This is the doc- 
 trine expressed by the maxim, inter arma silent 
 leges ; * * * that is, that in the midst of ac- 
 tual force, for arma is used as meaning force, the 
 law is silent." (Griffin v. Wilcox, 2lTnd.,370.) 
 
 " As has been said by a distinguishod civiUan, 
 'when foreign invasion or civil war renders it 
 impo.ssible for courts of law to sit, or to enforce 
 the execution of their judgments, it becomes 
 necessary to find some rude substitute for them 
 and to employ for that purpose the military, 
 which is the only remaining force in the com- 
 munity; and, while the laws are silenced by 
 the noise of arms, the rulers of the armed force 
 must punish, as equitably as they can, those 
 Climes which threaten their own safety and that 
 of society; but no longer. ' This necessity must 
 be shown affirmatively by the party assuming 
 to exercise this extraordinary and irregular 
 power over the Ufe, liberty, and property of the 
 citizen, whenever it is called in question." 
 (In re Egan, 8 Fed. Cas. No. 4303.) 
 
 "Public danger warrants the substitution of 
 executive process for judicial process." (Mover 
 V. Peabody, 212 U. S., 78.) 
 
 "Unquestionably a State may use its military 
 power to put down an armed insurrection too 
 strong to be controlled by the civil authority. 
 The power is essential to the existence of every 
 government, essential to the preservation of 
 order and free institutions, and is as necessary 
 to the States of this Union as to any other gov- 
 ernment. The State itself must determine 
 whi t degree of force the crisis demands. And 
 if the government of Rhode Island deemed the 
 armed opposition so formidable and so ramified 
 throughout the State as to require the use of 
 the military force and the declaration of martial 
 law, we see no ground upon which this court 
 can question its authority. It was a state of 
 war, and the established government resorted 
 to the rights and usages of war to maintain itself 
 and to overcome the unlawful opposition." 
 (Luther v. Borden, 7 How., 1.) 
 
 "It is not unfrequently said that the com- 
 munity must be either in a state of peace or 
 war, as there is no intermediate state. But 
 from the point of view now under consideration 
 this is an error. There may be peace for all the 
 ordinary purposes of life and yet a state of dis- 
 order, violence, and danger in special directions, 
 which, though not technically war, has in its 
 limited field the same effect, and if important 
 enough to call for martial law for suppression 
 is not distinguishable, so far as the powers of 
 the commanding officer are concerned, from 
 actual war. The condition in fact exists, and 
 the law must recognize it, no matter how opin- 
 ions may differ as to what it should be most cor- 
 rectly called." (Commonwealth v. Shortall, 
 206 Pa. St., 165; 65 L. R. A., 193.) 
 
 Martial law "is called into action by Con- 
 gress, or temporarily, when the action of Con- 
 gress can not be invited, in the case of justifying 
 or excusing peril, by the President." (Ex 
 parte Milligan, 4 Wall., 2, concurring opinion; 
 see also Despan v. Olney, 7 Fed. Cas. No. 3822.) 
 
 44 
 
War Power. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. I, Sec. 8. 
 
 " It is to be borne in mind that this power is 
 not one to be exercised only by the highest 
 officers of the Government, in whoae hands it 
 might be exercised with moderation. It is 
 claimed for the President as Commander in 
 Chief and as incident to a state of war. But if 
 it exists at all it exists as the law of war or mar- 
 tial law, and may be exercised by the military 
 officer in command of any district without ref- 
 erence to his rank, as rightfully as by the Presi- 
 dent himself. He might be afraid to exercise 
 it without orders from his superioi, but if it 
 exists at all it belongs to him as well as to the 
 President." (Johnson v. Jones, 44 111., 143; 
 92 Am. Dec, 159.) 
 
 Limitations upon exercise of martial 
 law. — ' ' Martial law can not arise from a threat- 
 ened invasion. The necessity must be actual 
 and present; the invasion real, such as effectu- 
 ally closes the courts and deposes the civil 
 administration. * * * There are occasions 
 when martial rule can be properly applied. If 
 in foreign invasions or civil war the courts are 
 actually closed and it is impossible to admin- 
 ister criminal justice according to law, then on 
 the theater of active military operations, where 
 war really prevails, there is a necessity to fur- 
 nish a substitute for the civil authority thus 
 overthrown, to preserve the safety of the Army 
 and society; and as no power is left but the 
 military, it is allowed to govern by martial rule 
 until the laws can have their free couise. As 
 necessity creates the rule, so it limits its dur?- 
 tion, for if this government is continued after 
 the courts are reinstated it is a gross usurpation 
 of power. Martial rule can never exist where 
 the courts are open and in the ])roper and unob- 
 structed exercise of their jurisdiction. It is 
 also confined to the locaUty of actual war." 
 (Ex parte Milligan, 4 Wall., 2.) 
 
 "A citizen not connected with the military 
 service and resident in a State where the courts 
 are open and in the proper exercise of their 
 jurisdiction can not, even when the privilege 
 of the writ of habeas corpus is suspended, be 
 tried, convicted, or sentenced otherwise than 
 by the ordinary courts of law." (Ex parte Mil- 
 Ugan, 4 Wall., 3.) 
 
 The Federal authority having been unop- 
 posed in the State of Indiana and the Federal 
 courts open for the trial of offenses and the re- 
 dress of grievances, the usages of war could not, 
 under the Constitution, afford any sanction for 
 the trial there of a citizen in civil life not con- 
 nected with the military or naval service by a 
 military tribunal for any offense whatever. 
 " It is claimed that martial law covers, with its 
 broad mantle, the proceedings of this miUtary 
 commission. The proposition is this: that in a 
 time of war the commander of an armed force (if 
 in his opinion the exigencies of the country de- 
 mand it and of which he is the judge) has the 
 power, within the lines of his military district, 
 to suspend all civil rights and their remedies 
 and subject citizens, as well as soldiers, to the 
 riile of his will; and in the exercise of his lawful 
 authority can not be restrained except by his 
 superior officer or the President of the Uiiited 
 States. * * * Martial law established on 
 such a basis destroys e^'ery guaranty of the 
 Constitution and effectually renders the 'mili- 
 tary independent of and superior to the civil 
 
 power.' * * * Civil liberty and this kind 
 of martial law can not end are together. * * * 
 It will be borne in miml that this is not a ques- 
 tion of the power to proclaim martial law when 
 war exists in a community and the courts and 
 ci^il authorities are overthrown." (Ex parte 
 Milligan, 4 Wall., 3, 124-127.) 
 
 "Martial law is exercised in our country, the 
 mihtary being on the spot to execute it where 
 no civil authority exists; but where the civil 
 authority exists, the Constitution is imperative 
 that it shall be paramount to the military." 
 (Griffin v. Wilcox, 21 Ind., 370.) 
 
 "Martial law is restricted to those places 
 which are the theater of war and to their imme- 
 diate vicinity. Modified by the necessities of 
 war, it is obvious it can not operate beyond these 
 bounds." (In re Kemp, 16 Wis., 359. )_ 
 
 "Neither can even the Commander in Chief 
 of the Army extend martial law beyond the 
 sphere of military operations. If he possessed 
 this power, in time of war or insurrection, over 
 the whole extent of the Nation, whether within 
 the theater of military operations or not, the 
 political institutions and laws of the land would 
 be entirely at his mercy." (Jones v. Seward, 40 
 Barb. (N. Y.), 563.) 
 
 "But when the civil courts, in the midst of 
 loyal communities, are exercising their ordinary 
 jurisdiction, the appeal to the mihtary arm or 
 to martial law is needless." (Johnson v. Jones, 
 44 111., 143; 92 Am. Dec, 159.) 
 
 See note to Article I, section 8, clause 13, 
 "Civil responsibility of persons in military 
 service." 
 
 Effect of martial law. — When martial law 
 is declared by a State during a local insurrec- 
 tion, " the officers engaged in its mihtary service 
 might lawfully arrest anyone who, from the in- 
 formation before them, they had reasonable 
 grounds to believe was engaged in the insurrec- 
 tion, and might order a house to be forcibly en- 
 tered and searched when there were reasonable 
 grounds for supposing he might be there con- 
 cealed. Without the power to do this, martial 
 law and the miUtary array of the Government 
 would be mere parade and rather encourage at- 
 tack than repel it." (Luther v. Borden, 7 
 How., 1.) 
 
 "The effect of martial law is to put into opera- 
 tion the powers and methods vested in the com- 
 manding oflicer by military law. So far as his 
 i:)0wers for the preservation of order and security 
 of Ufe and property are concerned, there is no 
 limit but the necessities and exigency of the 
 situation; and in this respect there is no differ- 
 ence between a public war and domestic insur- 
 rection." (Commonwealth t;. Shortall, 206 Pa. 
 St., 165; 65 L. R. A., 193.) 
 
 Martial law "overrides and suppresses all 
 existing civil laws, civil officers, and civil 
 authorities by the arbitrary exercise of military 
 power; and every citizen or subject, in other 
 words the entire population of the country, 
 within the confines of its power, is subjected to 
 the mere will or caprice of the commander. He 
 holds the hves, lil:)erty, and property of all in 
 the palm of his hand. Martial law is regulated 
 by no known or established system or code of 
 laws, as it is over and above all of them. The 
 commander is the legislator, judge, and exe- 
 cutioner. His order to the provost marshal is 
 
 45 
 
Art. I, Sec. 8. 
 
 Pt. 1. THE CONSTITUTION. 
 
 War Power. 
 
 llii; bcginuinp and tho oiid of iho trial aiul coii- 
 (lemnation of the accused. There may be a 
 lioaring, or not, at his will. If ]>enni1ted. it 
 may be before a dnimheiwl court-martial or the 
 more formal board of a military commission, or 
 both forma may be dis]>en.sod with and the trial 
 and condemnation be enually legal, though not 
 equallv humane and juaicious." (In re Egan, 
 S Fed."C'as. N(.. 4;U);i.) 
 
 "The will of the military chief * * * is, 
 subject to slight limitations, the law of the mili- 
 tary zone or theater of war. It is sometimes 
 spoken of as a substitute for the c\y\\ law. It 
 is baid also that the ])roclamation of martial law 
 ousts or suspends the ('ivil jurisdiction. These 
 expressions are hardly accurate. The invasion 
 or insurrection sets aside, suspends, and nulU- 
 fiea the actual operation of the Constitution and 
 laws. The guaranties of the Constitution as 
 well ivs the common law and statutes, and the 
 functions and powers of the courts and officers, 
 become inoperative by virtue of the disturb- 
 ance. The proclamation of martial law simply 
 recognizes the status or condition of things re- 
 sulting from the invasion or insurrection and 
 declares it. In sending the army into such 
 territory to occupy it and execute the will of 
 the military chief for the time being, as a means 
 of restoring peace and order, the executive 
 merely adopts a method of restoring and making 
 effective the Constitution and laws within that 
 territory, in obedience to his sworn duty to sup- 
 port the Constitution and execute the laws." 
 (State V. Brown, 71 W. Va., 519, 521; 33 Ann. 
 Cas., 2.) 
 
 " In most, if not all, of the instances in which 
 the civil courts have treated sentences of the 
 militarj^ commissions as void, the commissions 
 acted and the sentences were pronounced in 
 tranquil territory, not covered by any procla- 
 mation of martial law, in which there was no 
 actual war, in which the Constitution and laws 
 were in full and unobstructed operation." 
 (State V. Brown, 71 W. Va., 519, 524; 33 Ann. 
 Cas., 3.) [" In some ])arts of the country, during 
 the War of 1812, our officers made arbitrary 
 arrests and by military tribunals tried citizens 
 who were not in the military service. These 
 arrests and trials when brought to the notice of 
 the courts were uniformly condemned as ille- 
 gal." (Ex parte Milligan, 4 Wall., 128.)] _ 
 
 "Power to establish a military commission 
 for the punishment of offenses committed with- 
 in the military zone is challenged in argument; 
 but we think such a comnussion is a recognized 
 and necessary inc'ident and instrumentality of 
 martial government. A mere power of deten- 
 tion of offenders may be wholly inadequate to 
 the exigencies and effectiveness of such govern- 
 ment. How long an insurrection or a war may 
 last depends u])on its character." (State v. 
 Brown, 71 W. Va., 519, 525; 33 Ann. Cas., 4.) 
 
 "So long as such arrests [without judicial 
 process] are made in good faith and in the honest 
 belief that they are needed in order to head the 
 insurrection off, the governor is the final judge 
 and can not be subjected to an action after he 
 is out of office on the ground that he had not 
 reasonable ground f(jr his belief. * * * 
 When it comes to a decision b>^ the head of the 
 state iipon a matter involving its life, the ordi- 
 nary rights of individuals must yield to what he 
 
 deem.s tho necessities of the moment." (Moyer 
 V. rcabn.ly, 212 U. S., 78.) 
 
 "N(j more force, however, can be used than 
 is nec-essary to accomplish the object. And if 
 the power is exercised for tho purposes of op- 
 pression and any injury willfully done to person 
 or property, the party by whom or by whose 
 order it is committed will undoubtedly be 
 answerable." (Luther v. Borden, 7 How., 1.) 
 
 " It is an unbending rule of law that the exer- 
 cise of military power where the rights of the 
 citizen are concerned shall never be jjushed 
 beyond what the exigency requires." (Ray- 
 mond V. Thomas, 91 U. S., 712.) 
 
 During the war of 1812 Gen. Jackson de- 
 clared martial law in New Orleans. By his 
 order some of the citizens were arrested for sedi- 
 tious publications. A %vrit of habeas corpus 
 was issued and served on Gen. Jackson, who 
 tore up the writ and sent the judge by force 
 beyond his lines. Later, news was received of 
 the treaty of peace and martial law revoked. 
 The court issued a process against Jackson for 
 contempt of court. He came into court per- 
 sonally, submitted to its jurisdiction, and paid 
 a fine of $1,000. " I have always been taught to 
 beUeve that Judge Hall was right in imposing 
 the fine and that Gen. Jackson earned the 
 brightest page in his history by paying it and 
 gracefully submitting to the judicial power. 
 Such I believe is the judgment of history and of 
 thoughtful judicial inquirers, though a grateful 
 country very properly refunded to her favorite 
 general the sum he had paid for a necessary 
 but unauthorized exercise of mihtary power." 
 (Dissenting opinion of Mr. Justice Miller, Dow 
 V. Johnson, JOO U. S., 158, 194; see also Ex parte 
 Beck (245 Fed. Rep., 967, 973.) 
 
 Military comniissions. — "The laws of war 
 constitute much the greater part of the law of 
 nations. Like the other laws of nations, they 
 exist and are of binding force upon the depart- 
 ments and citizens of the Government, though 
 not defined by any law of Congress * * * 
 It is manifest from what has been said, that mil- 
 itary tribunals exist under and according to the 
 laws and usages of war in the interest of justice 
 and mercy. They are established to save hu- 
 man life, and to prevent cruelty as far as possi- 
 ble. The commander of an army in time of war 
 has the same power to organize military tribu- 
 nals and execute their judgments that he has 
 to set his squadrons in the field and light bat- 
 tles. His authority in each case is from the law 
 and usage of war. * * * That the laws of 
 war authorized commanders to create and es- 
 tablish military commissions, courts, or tribu- 
 nals for the trial of offenders against the laws 
 of war, whether they be active or secret partici- 
 pants in the hostilities, can not be denied. 
 * * * It must be constantly borne in mind 
 that such tribunals * * * can not exist ex- 
 cept in time of war, and can not then take cogni- 
 zance of offenders or offences where the civil 
 courts are open, except offenders and offences 
 against the laws of war * * * The fact that 
 the civil courts are open does not affect the right 
 of the military tribunal to hold as a prisoner and 
 to try. The civil courts have no more right 
 to prevent the military, in time of war, from try- 
 ing an offender against the laws of war than they 
 have a right to interfere with and prevent a bat- 
 
 46 
 
The Navy. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. I, Sec. 8. 
 
 tie." (11 Op. Atty. Gen. 297, holding that " the 
 persons charged with the assassination of the 
 President in the city of "Washington, on the 14th 
 of April, 1865, may be lawfully tried before a 
 military tribunal"; see also Carver t). U. S., 16 
 Ct. Cls^ 361; 111 U. S., 609.) 
 
 A military commission was without jurisdic- 
 tion to try a member of the United States Army 
 in occupation of Cuba in 1900, for homicide, 
 notwithstanding that the offense was not cog- 
 nizable by Army court-martial. Although 
 Cuba was being governed by the President of 
 the United States, principally by means of 
 American soldiers, it did not have the status of 
 martial law or military government. (23 Op. 
 Atty. Gen., 120.) 
 
 Rules governing military commissions and 
 provost courts convened by naval authority 
 are published in C. M. O. Nos. 13, 1916, page 
 6, and 15, 1917, page 8. 
 
 See "Unconstitutional Claims of Mili- 
 tary Authority," published in Journal of the 
 American Institute of Criminal Law and Crimi- 
 nology, vol. 5, page 718, for criticism of decisions 
 of the United States Supreme Court and other 
 authorities above cited; see also, Johnson v. 
 Duncan, 3 IMartin (La.) 530, 6 Am. Dec. 675, 
 cited in dissenting opinion in Luther v. Borden, 
 7 How. 83, in dissenting opinion in Re Moyer, 
 12 L. R. A. (N. S.) 979, 35 Colo. 159, etc. 
 
 [Clause 12. Raising and support of armies.] ^^ To raise and support Armies, 
 but no Appropriation of Money to that Use shall be for a longer Term than 
 two years ; 
 
 [Clause 13. Provision for a Navy.] ^^ To provide and maintain a Navy; 
 
 I. Power to Provide Navy. 
 II. Freedom from State Interference. 
 Jurisdiction of Civil Authorities. 
 Responsibility of Military Authori- 
 ties FOR Illegal Acts. 
 Protection of Military Officers for 
 Acts Done in Performance of Duty. 
 
 III. 
 IV. 
 
 I. Power to Provide Navy. 
 
 Distinguished from power to govern 
 Navy. — "The power to formulate Articles for 
 the Government of the Navy and f>unish indi- 
 vidual officers for violation thereof is conferred 
 upon Congress by the clause of the Constitution 
 authorizing it 'to make rules for the government 
 and regulation of the land and naval forces;' 
 [Art. I, sec. 8, clause 14.] The power to pro- 
 vide what persons may be appointed or enlisted 
 in the naval service, the qualifications they 
 must possess, and the total number of the entire 
 force, is conferred by the clause authorizing 
 the Congress 'to provide and maintain a Navy.' 
 Statutes passed under the first clause mentioned 
 are penal and are to be enforced by courts-mar- 
 tial; those passed under the second clause are 
 enacted in the interest of the Na\'y at large and 
 are to be administered by the President either 
 alone or with the aid of examining boards or 
 such other instrumentalities as may be deter- 
 mined upon by Congress. Persons excluded 
 from appointment for lack of any required 
 qualification — health, age, nationality, height, 
 temperament, or any other condition that Con- 
 gress might see fit to impose — are not being pun- 
 ished under penal laws for their failure to 
 measure up to the necessary requirements, but 
 are merely incidentally affected by the Gov- 
 ernment's policy * * * ." (File 26260- 
 1392, June 29, 1911, pp. 24-25; see also Op. Atty. 
 Gen., Feb. 15, 1918, file 26282-326: 2.) 
 
 Acquiring and manning ships of war. — 
 This clause authorizes the Government to buy 
 or build any number of steam or other ships of 
 war, to man, arm, and otherwise prepare them 
 for war, and to dispatch them to any accessible 
 
 part of the globe; and to establish a naval acad- 
 emv to prepare voung men for the naval service. 
 (U.- S. V. Rhodes, 27 Fed. Cas. No. 16151.) 
 Similar authority might be implied in the 
 power to ' 'declare war. " (U. S. v. Burlington, 
 etc.. Ferry Co., 21 Fed. Rep., 340.) 
 
 Power to compel rnilitary service. — 
 Powers granted to Congress by Article I, sec- 
 tion 8, of the Constitution, include power to 
 compel military service, exercised by the se- 
 lective draft law of May 18, 1917 (40 Stat., 
 76). This conclusion, ob\'ious upon the face 
 of the Constitution, is confirmed by a histori- 
 cal examination of the subject. (Selective 
 Draft Law Cases, 245 U. S., 366.) 
 
 Allowance of pensions. — Congress is em- 
 powered to give or withhold a pension, to pre- 
 scribe who may receive it, and to determine all 
 the circumstances and conditions under which 
 any application therefor shall be prosecuted. 
 No man has a legal right to a pension; the whole 
 control of the matter is within the domain of 
 congressional powe*-. (Frisbie v. U. S., 157 
 U. S., 166; see also U. S. v. Van Leuven, 62 
 Fed. Rep., 56.) 
 
 II. Freedom from State Interference. 
 
 State interference with Federal instru- 
 mentalities. — The principle that no State has 
 the right to interfere with the instrumentalities 
 of the Federal Government has been recognized 
 from the earUest days of our Government. 
 (File 6769-21, July 19, 1911, and 26524-54, 
 Feb. 12, 1914.) 
 
 ' 'Such is the law with reference to all instru- 
 mentalities created by the Federal Government. 
 Their exemption from State control is essential 
 to the independence and sovereign authority of 
 the United States within the sphere of their 
 delegated powers." (Fort Leavenworth, etc. 
 R. Co. V. Lowe, 114 U. S., 525.) 
 
 "Such being the distinct and independent 
 character of tlie two Governments within their 
 respective spheres of action, it follows that 
 neither can intrude with its judicial process 
 into the domain of the other, except so far as 
 such intrusion may be necessary on the part of 
 
 47 
 
Art. I, Sec. 8. 
 
 Pt. 1. THE CONSTITUTION. 
 
 The Navy. 
 
 the National (.lovernment to preserve its riulit- 
 ftil supremacy iu cases of conflict of autliority. 
 In their kxwa and mode of enforcement neither 
 is resjionsilile to the other. How their respec- 
 tive laAvs shall l)e enacted; how they shall be 
 carried into execution; and in what tribunals, 
 or by what officers; and how much discretion, 
 and whether any at all, shall be vested in their 
 officers, are matters subject to their own control, 
 in the regulation of which neither can interfere 
 withtheother. Now, among the powers assigned 
 to the National Government is the power to raise 
 and support armies and the power to provide 
 for tlie government and regulation of the land 
 and naval forces. * * * No interference 
 with the execution of tliis power of the National 
 Government in the formation, organization, 
 and government of the armies l)y any Stiite offi- 
 cials could be permitted without greatly impair- 
 ing the efficiency, if it did not utterly destroy, 
 this branch of the public service." (IT. S. v. 
 Tarble, 13 Wall., 397.) 
 
 "A building on a tract of land owned by the 
 United States, used as a foit, or for other public 
 purposes of the Federal Government, is ex- 
 empted, as an instrumentality of the Govern- 
 ment, from any such control or interference by 
 the State as will defeat or embarrass its effective 
 use for those pui-poses " [although such land 
 may not be under the exclusive jurisdiction of 
 the United States]. (Chicago, etc. R. Co. v. 
 McGlinn, 114 U. S., 545, explaining Ft. Leaven- 
 worth R. Co. V. Lowe, 114 U. S., 525.) 
 
 " If any particular State had it in its power to 
 intermeddle with the police and government of 
 an Army or Na^■y * * * upon any pretext, 
 there would be an end of the exclusive authority 
 of the United States in this respect. Wars and 
 other mea,sures unpopular in particular sections 
 of the country might be impeded in their prose- 
 cution by the interference of the State authori- 
 ties. Such a conflict of jurisdictions must ter- 
 minate in anarchy and confusion." (Argument 
 of Attorney-General, U. S. v. Bevans, 3 Ulieat., 
 374.) 
 
 "National banks are instrumentalities of the 
 Federal Government. * * * It follows that 
 an attempt by a State to define their duties or 
 control the conduct of their affairs is absolutely 
 void whenever such attempted exercise of 
 authority expressly conflicts with the laws of 
 the United States and either frustrates the pur- 
 pose of the national legislation or impairs the 
 efficiency of these agencies of the Federal Gov- 
 ernment to discharge the duties for the per- 
 formance of which they were created. " (Davis 
 V. Bank, 161 U. S., 275.) 
 
 Taxation of Federal instrumentalities. — 
 "If the States may tax one instrumentality 
 employed by the Government in the execution 
 of its powers, they may tax any and every other 
 instrumentality. They may tax the mail; 
 they may tax the mint; they may tax patent 
 rights; they may tax the papers of the customs- 
 house; they may tax judicial process; they 
 may tax all the means employed by the Gov- 
 ernment to an excess which would defeat all the 
 ends of government. This was not intended by 
 the American people. They did not design to 
 make their government dependent on the 
 States." (McCuUoch v. Maryland, 4 Wheat., 
 432, per Chief Justice Marshall.) 
 
 Taxation of Federal property. — "It is 
 familiar law tiiat a State ha,s no power to tax 
 property of the United States witliin its limits. 
 This exemption of their property from State 
 taxation — and by State taxation we mean any 
 taxation by authority of the State, whether it 
 be strictly for State purposes or for more local 
 and special objects — is founded upon that 
 principle which inheres in every independent 
 government, that it must he free from any such 
 interference of another government as may tend 
 to destrov its powers or impair their efliciency." 
 (Wisconsin C. R. Co. v. Price Countv, 133 U. S., 
 496: Van Brocklin r. Tennes-see. 117 IJ. S., 151.) 
 
 Poll taxes upon persons in Navy. — "A 
 poll tax upon the person of an officer of the 
 Navy levied by a State or municipality within 
 the confines of which he is ordered officially to 
 perform duty as an agent of the Government in 
 his capacity as such officer is not such a tax as 
 he can be lawfully required to pay." (File 
 9212-22, Feb. 21, 1912: see also file 9212-^7, 
 and Ex parte White, 228 Fed. Rep., 88.) 
 
 State tax on Federal automobiles. — 
 "Automobiles purchased for the President 
 under appropriations made by Congress are not 
 subject to taxation by a State, nor can the 
 chauffeurs operating said machines be taxed 
 by a State for the privilege- of performing the 
 duties pertaining to their emplo\Tnent." (28 
 Op. Atty. Gen., 604.) 
 
 "A State may, however, in order to protect 
 the public against dangers that might arise 
 from performing the duties of a lawful employ- 
 ment in an unlawfid manner, adopt reasonable 
 police regulations which require that certain 
 conditions be complied with before entering 
 upon such occupation, and the fees intended 
 merely to pay the expenses of complying with 
 these requirements may be exacted." (28 Op. 
 Atty. Gen., 604.) 
 
 "Under existing law and appropriations an 
 employee of the Federal Government who pays 
 a fee to a State for a chauffeur's license to oper- 
 ate a Goveniment-o\vned motor vehicle on 
 public business is not entitled to reimburse- 
 ment therefor from public fimds. Quaere, 
 whether the Federal Government, while deny- 
 ing the right of a State to exact from it a motor 
 vehicle license fee, should at the same time 
 accept such a license and place the tag e\ddenc- 
 ing it upon such motor vehicle." (23 Comp. 
 Dec, 386.) 
 
 A law of a State penalizing those who operate 
 motor trucks on highways without having ob- 
 tained licenses based on examination of com- 
 petency and payment of a fee, can not consti- 
 tutionally apply to an employee of the Post 
 Office Department while engaged in driving a 
 Government motor truck over a post road in 
 the performance of his official duty. (John- 
 son v. Mai-yland, 254 U. S., 51.) 
 
 Hunters' licenses issued by States. — The 
 appropriation "General expenses. Bureau of 
 Entomology," is not available for the payment 
 of a fee for a hunter's license to be issued by 
 a State to a scientific investigator of the De- 
 partment of Agriculture as an attempted condi- 
 tion precedent to his performing his official 
 duties in that State. (23 Comp. Dec, 57.) 
 
 State taxation of Federal salaries. — 
 ' ' The powers of the National Government can 
 
 48 
 
The Navy. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. I, Sec. 8. 
 
 only be executed by officers whose services must 
 be compensated by Congress. The_ allowance 
 is in its discretion. The presumption is that 
 the compensation given by law is no more than 
 the services are worth, and only such in amount 
 as will secure from the officer the diligent per- 
 formance of his duties. * * * The com- 
 pensation of an officer of the United Statesis 
 fixed by a law made by Congress. It is in its 
 exclusive discretion to determine what shall be 
 given. * * * Does not a tax, then, by a 
 State upon the office, diminishing the recom- 
 pense, conflict with the law of the United States, 
 which secures it to the officer in its entireness? 
 It certainly has such an effect." (Dobbins v. 
 Commissioners, 16 Pet., 4.35.) 
 
 Taxation of Federal telegrams. — A State 
 tax upon telegraph messages could not be col- 
 lected upon messages sent by officers of the 
 United States on public business. (Western 
 Union Tel. Co. v. Texas. 105 U. S., 460.) 
 
 Taxation of Federal contractors. — "Can 
 a contractor for supplying a military post with 
 provisions be restrained from making purchases 
 witlun any State, or from transporting the pro- 
 visions to the place at which the troops were 
 stationed? Or could he be fined or taxed for 
 doing so? We have not yet heard these questions 
 answered in the affirmative. It is true that the 
 property of the contractor may be taxed, as the 
 property of other citizens; and so may the local 
 property of the bank. But we do not admit 
 that the act of purcliasing or of conveying the 
 articles purchased can be under State control." 
 (Osbom V. United States Bank, 9 Wheat., 867.) 
 
 Taxation of passenger transportation. — 
 "A special tax on raih-oad and stage companies 
 for every passenger carried out of the State by 
 them is a tax on the passenger for the privilege 
 of passing through the State by the ordinary 
 modes of travel and is inconsistent with objects 
 for which the Federal Government was estab- 
 lished and with rights conferred by the Consti- 
 tution on that GoA-ernment and on the people. 
 An exercise of such a power is accordingly 
 void." (Crandall v. Nevada, 6 Wall., 35.) 
 
 "The Federal power has a right to declare 
 and prosecute wars and as a necessary incident 
 to raise and transport troops tlu-ough and over 
 the territory of any State of the Union. If this 
 right is dependent in any sense, however 
 limited, upon the pleasure of a State, the Gov- 
 ernment itself may be overthrown by an ob- 
 struction to its exercise. Much the largest part 
 of transportation of troops during tiie late re- 
 bellion was by railroads, and largely through 
 States whose people were hostile to the Union. 
 If the tax levied by Nevada on railroad passen- 
 gers had been the law of Tennessee, enlarged to 
 meet the wishes of her pe(jple, the Treasiu-y of 
 the United States could not have paid the tax 
 necessary to enable its armies to pass tlirough 
 her territory." (Crandall v. Nevada, 6 Wall., 
 35.) 
 
 "The United States has a right to require the 
 services of its citizens at the seat of Federal 
 Government in all executive, legislative, and 
 judicial departments, and at all points in the 
 several States where the functions of the Gov- 
 ernment are to be performed * * *. The 
 citizens of the United States have the correla- 
 
 tive right to approach the great departments of 
 the Government, the ports of entry through 
 wliich commerce is conducted, and the various 
 Federal ofiices in the States. The taxing 
 power, being in its nature unlimited over the 
 subjects within its control, would enable the 
 State governments to destroy the above-men- 
 tioned rights of the Federal Government and of 
 its citizens if the right of transit tlirough the 
 States by railroad and other ordinary modes of 
 travel were one of the legitimate objects of 
 State taxation." (Crandall v. Nevada, 6 Wall., 
 36; compare 28 Op. Atty Gen., 604.) 
 
 Inspection of powder. — The powder offi- 
 cer for the harbor of Norfolk, appointed under the 
 laws of Virginia to superintend the handling of 
 all powder to and from vessels in the harbor, haa 
 no authority over powder belonging to the Fed- 
 eral Government, and the United States is not 
 liable for any charge for services performed by 
 him imder the authority of that law. (25 Op. 
 Atty. Gen., 234; compare 28 Op. Atty Gen., 
 604). 
 
 " It ia not open to question that such a law is 
 the legitimate exercise by the State of its police 
 power so far as its provisions do not affect the 
 agencies of the Federal Government or impair 
 their efficiency in performing the functions 
 which they are designed to perform. No police 
 regulation of a State, however, can be permitted 
 to interfere with the instrumentalities of the 
 Federal Government * * *. If the State of 
 Virginia has authority to control the shipment 
 through the State of powder belonging to the 
 Government and impose a charge therefor, it 
 may stop euch powder at its borders on the 
 ground that it is improperly boxed, or that it is 
 not boxed in accordance with regulations of the 
 State. It is obvious that such a proceeding 
 would seriously interfere with and impede an 
 agency of the Government. If Virginia may 
 make and enforce such a police regiilation, it 
 follows that every other State may do the 
 same * * *. If the State may control the 
 transfer of powder belonging to the Government, 
 it may inspect a regiment of Cavalry under a 
 police regulation providing for the inspection 
 of all horses coming within its borders. If one 
 State may inspect aregiment of Cavalry and im- 
 pose a charge therefor, it follows that every other 
 State may do the same. If a regiment of Cav- 
 alry may be inspected and turned back — for, of 
 course, the power to inspect includes the power 
 to stoj) — an army of Cavalry and Artillery may 
 be inspected and stopped at the borders of a 
 State * * *. If a State imder the exercise 
 of its police power may prevent the Federal 
 Government from sending its troops and mu- 
 nitions of war to different parts of the country, 
 the Constitution did not -in fact 'provide for 
 the common defense.'" (25 Op. Atty. Gen., 
 234.) 
 
 Inspection of battleships. — "The health 
 laws of a State do not extend to agencies of the 
 Federal Government, and as battleships belong- 
 ing to the United States are agencies of the 
 Federal Government, the charges by a health 
 officer of a State for the inspection of such bat- 
 tleships are not a legal claim against the United 
 States." (13 Comp. Dec, 672, followed, file 
 6118-3, Nov. 22, 1907.) 
 
 49 
 
Art. I, Sec. 8. 
 
 PL 1. THE CONSTITUTION. 
 
 The Navy. 
 
 "Quarantine charges have been allowed in 
 some instances where naval vessels, particularly 
 colliers which have no medical ollicers on board, 
 arrive from a foreij^n ])ort, or from an infected 
 port in the United St^ites. In such instances 
 It is always assumed that actual services are 
 rendered by the inspecting oihcer, and that 
 such services are necessary in defense and pro- 
 tection of the public health, and the payment 
 isforsuchserWces. The case reported * * * 
 is entirely different. No servdces were ren- 
 dered, and the charge is in the nature of a quar- 
 antine fee or tax. Wliile the department 
 desires to afford all reasonable facilities to 
 quarantine oflicers in making inspections, it 
 can not undertake to pay fees of this character 
 every time a war vessel enters a port of the 
 United States. Such charges are unnecessary 
 and would become onerous if made at every 
 port entered by naval vessels. The bill referred 
 to * * * should, therefore, not be paid." 
 (File 3983, Mar. 5, 190G; followed, fde 6118-2, 
 Dec. 29, 1906.) [This decision was prior to the 
 decision of the Comptroller of the Treasury 
 quoted in preceding paragraph . See also 23 Op. 
 Atty. Gen., 299, noted below.] 
 
 Inspection of horses. — Where the Federal 
 Government acquiesces in the requirement of 
 State laws and makes arrangements for inspec- 
 tion of its horses in accordance therewith, the 
 expense is properly payable from its appropri- 
 ations. (Comp. Dec, June 12, 1915, War Dept. 
 Bui. No. 26, July 16, 1915, distinguishing 21 
 Comp. Dec, 449.) 
 
 Toll for property of United States pass- 
 ing over wharves. — "The State harbor com- 
 missioners of California are charged by the laws 
 of that State with the supervision and control 
 of the wharves and landings of the harbor of San 
 Francisco, with the right to collect dockage, 
 wharfage, rent, or toll. The imposition of a 
 toll or charge by such commissioners on mer- 
 chandise, being the property of the United 
 States, passing to or over the wharves at San 
 Francisco, is constitutional and valid, the 
 charge being for a ser\dce rendered; the Gov- 
 ernment is not entitled to such services free of 
 toll." (23 0p. Atty. Gen., 299.) 
 
 "It has been adjudged that the United States 
 Government is not entitled to have property or 
 troops transported free over a railroad, even 
 where a land grant provided that the road shall 
 remain a public highway for the use of the Gov- 
 ernment free from all toll or other charges for 
 transportation, since that act did not include 
 free use of rolling stock (Lake Superior & M. R. 
 Co. v.V. S., 93 U. S., 442). This principle 
 fairly includes the Government use of State or 
 municipal wharf and harbor facilities. That is 
 to say, the different^kinds of Government prop- 
 erty affected in this'case, while used for public 
 service and in sovereign and important opera- 
 tions of the Government such as required this 
 shipment, are not instrumentalities or agencies 
 which are necessarily free from local charges 
 for services or facilities generally legitimate. 
 Indeed, from Railroad Co. v. Peniston (18 Wall., 
 5, 36), showing that a tax upon property of 
 agents of the United States does not necessarily 
 
 hinder the ellicient exercise of their powers or 
 discharge of their duties, it seems to be a conse- 
 quence that the same distinction would aj)ply 
 to the Government itself, and that a charge upon 
 Government property which was not a tax upon 
 operations of the Government or a direct 
 obstruction to the exercise of Federal powers 
 would not necessarily be invalid. This is also 
 the conclusion to be drawn from Railroad Co. 
 V. United States (93 U. S., 442); so that, while 
 Government property may not be taxed nor 
 Government instrumentalities or agencies nor 
 the operations of the Government be obstructed 
 or burdened in any such way, if the Government 
 is properly liable to pay charges for transporta- 
 tion, a charge for services or facilities analogous 
 to transportation and connected with it would 
 not be a tax and would not be invalid on that 
 score." (23 Op. Atty. Gen., 299; compare 28 
 Op. Atty Gen, 604). 
 
 State health laws. — The health authorities 
 of the State of Illinois are without j lu^isdiction 
 to require reports from the naval authorities at 
 Great Lakes, apart from any question of juris- 
 diction over the lands occupied by the naval 
 training station at that place. (File 14560-174, 
 Apr. 19, 1916. See also file 4778-95, Dec. 16, 
 1916, re training station, San Francisco, Cal.) 
 
 Exemption from State laws requiring 
 employment of pilots. — "Commanders of 
 public vessels are not required to employ and 
 pay branch pilots upon entering the ports and 
 harbors of the United States. This exemption 
 extends to all vessels belonging to the United 
 States, and employed in the public service, 
 whether they are armed or not." (4 Op. Atty. 
 Gen., 532.) 
 
 "The penalties imposed by State laws for 
 piloting vessels without due license from the 
 State have no application to persons employed 
 as pilots on board of the public vessels of the 
 United States, the latter vessels being within 
 the exclusive jurisdiction of the United States." 
 (16 Op. Atty. Gen., 647.) 
 
 Exemption from compvilsory personal 
 services under State laws. — "The salary 
 of a Federal officer may not be taxed; he may 
 be exempted from any personal services which 
 will interfere with the discharge of his official 
 duties, because those exemptions are essential 
 to enable him to perform those duties." 
 (Bank v. Commonwealth, 9 Wall., 353.) 
 
 Persons connected with the military service 
 of the United States are exempt from perform- 
 ing road duty u])on order of the county authori- 
 ties when comjiliance with such order would 
 interfere with their duty to the Federal Govern- 
 ment. The land for a military post having 
 been purchased by the United States with the 
 consent of the State, neither the State nor other 
 local authorities have power to interfere with 
 any instrumentalities necessary to the pro])er 
 use of such location as a military post. This 
 would be true even if the land had been ac- 
 quired within the State without any consent 
 whatever on the part of the legislature of the 
 State. It is certainly true that the county 
 authorities would have no right to interfere in 
 any way with the troops located at the post. 
 
 60 
 
The Navy. 
 
 Ft. 1. THE CONSTITUTION. 
 
 Art. I, Sec. 8. 
 
 It is not claimed that the officers and enlisted 
 men of the Army stationed at the fort are sub- 
 ject to road duty in the county. The same is 
 true of teamsters employed and regularly used 
 by the quartermaster's department at the fort. 
 A military post could not be properly main- 
 tained without teamsters. The character of an 
 Army teamster's service and his duties are such 
 that it would be impossible for him to perform 
 them properly and be at the call of the road 
 commissioners to work public roads of the 
 county outside of the Government's property. 
 The State and county have no right to call on 
 him to be absent from the fort when such ab- 
 sence would interfere with the proper discharge 
 of his duties as a necessary and im]>ortant, even 
 if an humble, part of the Army of the United 
 States. The necessary conclusion is that the 
 detention of the petitioner in jail for failure to 
 perform road duty is in violation of his rights 
 under the Constitution and laws of the United 
 States, such laws including the Articles of War 
 and the Army Regulations, the latter made in 
 pursuance of the statutes of the United States, 
 and therefore for present purposes considered 
 as a part of the statutes. (Pundt v. Pendleton, 
 167 Fed. Rep., 997; compare Butler v. Perry, 
 240 U. S., 328.) 
 
 As to the exemption of civil employees under 
 the War Department from jury duty in a State 
 court where such exemption is not allowed by 
 the court, the Attorney General is reluctant to 
 render an opinion, as to do so might bring him 
 in confUct with a judicial tribunal. In this 
 case the State j udge in refusing the claim noti- 
 fied the War Department that he would excuse 
 the men from such duty if in the department's 
 opinion not to do so would seriously prejudice 
 the public interest. Under these circum- 
 stances no such serious occasion has as yet arisen 
 as would justify the Attorney General in re- 
 \dewing the ruling of the State judge. *" If the 
 claim of right to jury duty from Government 
 workmen shall in the future be so far pressed 
 as to cause serious inconvenience in your [Sec- 
 retary of War's] judgment, of course I can not 
 then hesitate to meet the question." (20 Op. 
 Atty. Gen., 618; see also file 21090-3, Sept. 3, 
 1908.) 
 
 Limitation upon exemption from. State 
 interference. — "These agencies [of the Fed- 
 eral Government] are exempt from State control 
 by police regulation, or by the exercise of the 
 taxing power, so far only as that legislation may 
 interfere with or impair their efficiency in per- 
 forming the functions by which they are de- 
 signed to serve the Government." (Bank v. 
 Commonwealth, 9 Wall., 353; Railroad Co. v. 
 Peniston, 18 Wall., 5; Western Union Tel. Co. 
 V. Mayor, 38 Fed. Rep., 560.) 
 
 III. Jurisdiction of Civil Authorities. 
 
 Exemption of Federal officers and sub- 
 ordinates from arrest by State author- 
 ities.— "An officer of the United States Army, 
 in the discharge of his duty, acting in obedience 
 to commands by the Secretary of War, who in 
 turn is executing an act of Congress, is not sub- 
 ject to arrest on a warrant or order of a State 
 
 court, and * * * such arrest is wholly ille- 
 gal." (In re Turner, 119 Fed. Rep., 231; see 
 also State v. Burton, 103 Atl., 962.) 
 
 "It is begging the whole question, and it is 
 idle, to say that any and all Federal officers are 
 amenable and subject to the laws, civil and 
 criminal, of Iowa when within the State. Of 
 course they are. The Secretary of War, the 
 general of the Armies, the Chief Justice, and 
 even the President, perhaps, are subject to all 
 laws of Iowa when in Iowa. No one disputes 
 this. But that is not the question. Can any 
 one of those officers, or any subordinate, in the 
 discharge of his duties as a Government officer, 
 be subject to the laws of the State while in the 
 State? That is the question and the only ques- 
 tion. The State is not greater than the Nation, 
 but, on the contrary, the State is but a part, 
 and a small j)art, of the Nation. And, if I am 
 wrong, then instead of the President, and the 
 Secretary of War, and the general of the Army, 
 being in control, we will have army commands 
 given by and through the courts, and an officer 
 like Major Turner cashiered and dismissed from 
 the service if he refuses to obey the commands 
 from his superiors, and if he does obey them, 
 thrown into a county jail for contempt of court.'' 
 (In re Turner, 119 Fed. Rep., 231.) 
 
 "The arrest, under authority of a State, of a 
 Federal officer, and that officer one of the 
 Federal Army in the performance of a com- 
 mand by a superior which he dare not disobey, 
 presents a matter of urgency, and it is within 
 the discretion of the Federal court to at once 
 take cognizance of the case, and act at once, 
 rather than allow the case to be carried through 
 three courts, taking two or three years of time." 
 (In re Turner, 119 Fed. Rep., 231.) [In this 
 case an officer of the Army was enjoined by 
 a State court from obeying the orders of the 
 Secretary of War. He disregarded the in- 
 jimction and was attached and imprisoned for 
 contempt. His release was ordered by the 
 Federal court upon writ of habeas corpus.] 
 
 There is no act of Congress authorizing a call 
 by the governor of a State for the surrender of an 
 officer of the Navy charged with having broken 
 the peace of such State, nor any law authorizing 
 an arrest by the Executive with a view to a 
 forcible surrender by him for the purposes of 
 trial. However, advised that the accused be 
 ordered by the Navy Department to surrender 
 himself. (1 Op. Atty. Gen., 244. See further, 
 note to Art. IV, sec. 2, clause 2, and Art. I, sec. 
 8, clause 14; see also note to sec. 355, Revised 
 Statutes.) 
 
 The State authorities are not empowered to 
 arrest persons, either in the naval or the civil 
 service of the United States, within the limits 
 of a navy yard, whether on shore or on board 
 vessels at the yard, without fir.st obtaining the 
 permission of the commandant, to the end that 
 such service of process shall not interfere with 
 or obstruct operations of the United States Gov- 
 ernment. (File 6769-21, July 19, 1911.) 
 
 However, where a police officer, holding a 
 warrant for the arrest of an enlisted man upon 
 a charge of misdemeanor, persuaded the man 
 to leave his vessel on liberty and accompany 
 the police officer outside the limits of the navy 
 yard, there making the arrest, it was held by the 
 
 51 
 
Art. I, Sec. 8. 
 
 Pt. 1. THE CONSTITUTION. 
 
 The Navy. 
 
 Attorney General that while there are authori- 
 ties which iudirato that an ai>])lication to the 
 coinniandins^ otiiror is a norcssary condition 
 precedent to the State's acquirinc: jurisdiction 
 (especially Ex ]>arte McRol>crts, l(j Iowa, GOO, 
 G04), yet the better Wew, as held in the case of 
 In re O'Connor (:]7 Wis., 379), is that applica- 
 tion to the commandinfr ollicer is not juris- 
 dictional, the matter l)cin,i; one that does not go 
 to the jurisdiction ol" the civil court issuing the 
 
 Iirocess; that there is no doubt that the mem- 
 )ers of the military forces of the United States 
 are 8ul)ject in times of ]ieace to the criminal 
 laws of the States; and, accordingly, that want 
 of an ai)i)lication to the commanding oflicer 
 would be a mere informality which might make 
 the warrant of arrest irregular but would not 
 make it void or liable to be attacked upon a 
 habeas corpus ])roceeding. (File 7657-261:1, 
 Nov. M, 19J4.) 
 
 "If the civil magistrate has become de facto 
 seized of a case of murder, if indictment is 
 pending, if the accused is thus in the actual 
 jurisdiction of the law of the land, it is not mate- 
 rial to the validity of the proceedings at law 
 and the right of the magistrate to go on accord- 
 ing to the lex loci, whether the party passed 
 into the hands of the magistrate regularly, by 
 the act and with the consent of his commanding 
 officer, or whether by breach of arrest of the 
 partv, desertion, or anv other violation of mili- 
 tarj^'duty." (6 Op. Atty. Gen., 413.) 
 
 A mail carrier, although on duty, is subject 
 to arrest by the State authorities upon a charge 
 of murder. (U. S. v. ICirby, 7 Wall., 482, hold- 
 ing specifically that the police officer making 
 such arrest was not su])ject to criminal proceed- 
 ings for \dolation of the Federal statute against 
 delajdng the mails.) From this decision of the 
 Sui)reme Court it would appear that the well- 
 established principle, that the State authorities 
 can not interfere with an instrumentality of the 
 Federal Government, is subject to an excejition 
 in a case where a person of the Federal Govern- 
 ment is arrested in good faith, upon a charge of 
 felony. However, it would seem that the 
 charge upon which such an arrest is made 
 would require a very clear prima facie case to 
 warrant such action, as otherwise the Federal 
 Government might be seriously interfered with 
 and embarrassed in its official functions. In the 
 case presented, an enlisted man was arrested 
 upon a charge of felony while traveling through a 
 State under orders; was acquitted , and has been 
 released and proceeded to carry out his orders. 
 This would have been a good casein which to test 
 the question, in view of the fact, as now appears, 
 that the charge was wholly without foundation. 
 In its present status it does not a])]iear that 
 there is any action which can be taken by the 
 Government. Should another case of this 
 character arise, and the department be 
 promptly informed thereof, consideration might 
 be given to the feasiljility of having the legality 
 of the arrest tested in hal)eas corpus proceedings 
 instituted in behalf of the United States. (File 
 26524-70, Aug. 12, 1914.) 
 
 The imposition of a sentence of imprisonment 
 for 60 days on a solflier by the authorities of a city 
 for a ^dolation of a city ordinance, where the act 
 charged did not result in nor threaten any in- 
 jury to person or property, is unwarranted, and 
 
 the soldier will be discharged by the Federal 
 court and restored to the custody of his com- 
 manding oflicer, on ])etition of the latter in ha- 
 beas cor])U3 i)roceeding3. (Ex parte Schlaffer, 
 15-1 Fed. Rep.. 921.) 
 
 While an enlisted soldier in time of ])eace may 
 be subjected to arrest and punishment for vio- 
 lation of a numici])al ordinance, the same as a 
 civilian, yet where any ])unishment is sought to 
 be iullicted which will interfere Avith the per- 
 formance of the duties which he owes to the 
 United States, the utmost good faith is required 
 from the civil authorities and any unfa ir or un- 
 just discrimination against the offender because 
 he is a soldier, or departure from the strict re- 
 quirements of the law, or any cruel or unusual 
 punishment, can be as justly inquired into by 
 the Federal courts in proceedings instituted 
 by his commanding officer as it can be in pro- 
 tecting the interests of the United States in any 
 matter where its necessary governmental agen- 
 cies are involved. (Ex parte Schlaffer, 154 
 Fed. Rep., 921.) 
 
 "A court or judge of the United States has 
 power to issue a writ of habeas corpus on peti- 
 tion of the United States for the purpose of an 
 inquiry into the cause of detention of a ])risoner 
 held by a State to answer to a criminal charge, 
 where it is alleged by the petitioner that the act 
 charged as a crime was committed by the pris- 
 oner in the performance of his duty as a soldier 
 of the United States; and it has authority to de- 
 termine summarily as a fact whether or not such 
 allegation is true, and if found to be true to dis- 
 charge the prisoner on the ground that the State 
 is without jurisdiction to try him for such act." 
 (U. S. V. Lipsett, 156 Fed. Rep., 65.) 
 
 "It is an exceedingly delicate jurisdiction 
 given to the Federal courts by which a person 
 under an indictment in a State court, and sub- 
 ject to its laws, may, by the decision of a 
 single judge of the Federal court, upon a writ 
 of habeas corpus, be taken out of the custody 
 of the officers of the State and finally discharged 
 therefrom, and thus a trial by the State court 
 of an indictment foimd under the laws of that 
 State be finally prevented. Cases have oc- 
 cui'red of so exceptional a nature that this 
 course has been pursued." (Drury v. Lewis, 
 200 U. S., 1, quoting from Baker v. Grice, 169 
 U. S., 284. In the Drury case the court re- 
 manded the accused for trial to the State 
 court, the evidence being conflicting as to 
 whether or not he had in fact exceeded his 
 Federal authority.) 
 
 We are of opinion that while the circuit coiirt 
 has the power to do so, and may discharge the 
 accused in advance of his trial, if he is re- 
 strained of his liberty in violation of the 
 National Constitution, it is not bound in every 
 case to exercise such a power immediately upon 
 application for the writ. We can not suppose 
 that Congress intended to compel those courts, 
 by such means, to draw to themselves, in the 
 first instance, the control of all criminal prose- 
 cutions commenced in State courts exercising 
 authority within the same territorial limits, 
 where the accused claims that he is held in 
 custody in violation of the Constitution of the 
 United States. The Federal courts should 
 exercise their discretion in the Light of the rela- 
 tions existing under our system of Govem- 
 
 52 
 
The Navy. 
 
 PL 1. THE CONSTITUTION. 
 
 Art. I, Sec. 8. 
 
 ment between the judicial tribunals of the 
 Union and of the States, and in recognition of 
 the fact that the public good requires that those 
 relations be not disturbed by unnecessary con- 
 flict between courts equally bound to regard 
 and protect rights secured by the Constitution. 
 (Ex parte Royall, 117 U. S., 241; see also 
 Tiusley v. Anderson, 171 U. S., 101; Ex parte 
 Wood, 155 Fed. Rep., 190.) 
 
 In the absence of express statutory authori- 
 zation, the general authority of the President 
 to see that the laws of the United States are 
 faithfully executed empowered him to ap- 
 point a deputy marshal to protect a Federal 
 judge whose life was threatened in consequence 
 of the conscientious and faithful discharge of 
 his duties. Where such deputy was arrested 
 and brought to trial in a State court upon a 
 charge of minder, for a homicide committed 
 while acting witliin the line of duty thus as- 
 signed him, he was entitled to release on habeas 
 corpus issued by a Federal judge. (In re 
 Neagle, 135U. S., 1.) 
 
 It is recognized that during times of peace 
 the military power in the United States is sub- 
 ordinate to the ciWl, and that an enlisted man 
 is amenable to the statutory law and under 
 proper circumstances and on necessary occa- 
 sions may be subject to arrest and detention 
 for the violation of municipal ordinances the 
 same as any ciNilian. The relations existing 
 between the police force and the enlisted men 
 and the peace and welfare of the community 
 demand consistent and harmonious action, both 
 by the ofhcers in command on the one side and 
 the higher municipal authorities on the other, 
 in checking and controlling the forces under 
 each. The enUsted man should be as obedient 
 and sub-serxdent to cIatI law when called upon 
 as he is to mihtaiy law, and the municipal au- 
 thorities should recognize his peculiar condi- 
 tions and res])onsibilities and act in harmony 
 and accord with his officers. It is not consid- 
 ered that enlisted men should be treated and 
 held in any detention or attempted ]:)unish- 
 ment the same as though they were answerable 
 to no other power. Their position and the re- 
 cpiirements of their con'stitutional duty- demand 
 in behalf of the National Government from the 
 municipal authorities such a recognition of its 
 rights as would accomplish a preservation of 
 the peace and the observance of the city ordi- 
 nances without in any way affecting their du- 
 ties as soldiers. (Ex parte Schlaffer, 154 Fed. 
 Rep., 921.) 
 
 Where persons in the Navy or Marine Corps 
 are arrested by the Federal or State authorities 
 Avhile on leave for criminal offenses and return 
 to duty under bail, they may be granted leave 
 of absence by their commanding officer in order 
 to appear in the ciAdl court for trial. (File 
 5322, G. O. No. 121, par. 17, Navy Dept., Sept. 
 17, 1914.) 
 
 _ By enlistment a person is not absolved from 
 liability to arrest for taxes on property due pre- 
 vious to his enlistment. (Webster v. Seymour, 
 8Vt., 135.) 
 
 State courts can not order release of 
 persons held by authority of United 
 States. — "Xo State, judge, or court, after they 
 are judicially informed that a party is im- 
 prisoned under the authority of the United 
 
 States, has any right to interfere with him, or 
 require him to be brought before them. And 
 if the authority of the State, in form of judicial 
 process or otherwise, should attempt to control 
 the marshal or other authorized officer of the 
 United States, in any respect, in the custody 
 of his prisoner, it would be his duty to resist it, 
 and to call to his aid any force that might be 
 necessary' to maintain the authority of the law 
 against illegal interference." (Ableman v. 
 Booth, 21 How., 506.) 
 
 "We do not question the authority of the 
 State court, or judge, who is authorized by the 
 laws of the State to issue the writ of habeas 
 corpus, to issue it in any case where the party 
 is imprisoned within its territorial Limits, pro- 
 \'ided it does not appear, when the application 
 is made, that the person imprisoned is in cus- 
 tody under the authority of the United States. 
 Tliecourtor judge has a right to inquire, in this 
 mode of proceeding, for what cause and by 
 what authority the prisoner is confined within 
 the territorial limits of the State 80vereignt\^ 
 But after the return is made, and the State 
 judge or court is judicially apprised that the 
 party is in custody under the authority of the 
 United States, they can proceed no furtlier." 
 (Ableman v. Booth, 21 How., 506; see also 
 United States v. Tarble, 1.3 Wall., 397.) 
 
 In the event that a writ of habeas corpus 
 should be issued by a State court to a com- 
 manding officer of the Navy or Marine Corps, 
 afloat or ashore, the latter will commimicate 
 with the Secretary of the Nav^^; and, if in- 
 structions are not received by the commanding 
 officer from the Secretary of the Nai-y by the 
 return day of the writ, the officer upon whom 
 the writ is served will make return thereto, 
 showing that the party is held by authority of 
 the United States, but without producing the 
 bodv of the partv in court. (G. O. No. 121, 
 Sept. 17, 1914; compare 12 Op. Atty. Gen., 258.) 
 
 State courts cannot punish perjury 
 committed before Federal court. — "The 
 power of punishing a witness for testifying 
 falsely in a judicial proceeding belongs pecu- 
 liarly to the Government in whose tribunals 
 that proceeding is had. It is essential to the 
 impartial and efficient administration of justice 
 in the tribunals of the Nation that witnesses 
 should be able to testify freely before them, un- 
 restrained by legislation of the State or by fear 
 of punishment in the State courts. The ad- 
 ministration of justice in the national tribunals 
 would be greatly embarrassed and impeded if 
 a witness testifying before a court of the Umted 
 States, or upon a contested election of a Member 
 of Congress, were Liable to prosecution and 
 punishment in the courts of a State upon a 
 charge of perjury preferred by a disappointed 
 suitor or contestant or instituted by local pas- 
 sion or prejudice. A witness who gives his 
 testimony, pursuant to the Constitution and 
 laws of the United States, in a case pending in 
 a court or other judicial tribunal of the United 
 States, whether he testifies in the presence of 
 that tribunal, or before any magistrate or officer 
 either of the Nation or of the State) designated) 
 by act of Congress for that purpose, is account- 
 able for the truth of his testimony to the United 
 States only; and perjury committed in so testi- 
 fying is an offense against the pubhc of the 
 
 53 
 
Art. I, Sec. 8. 
 
 Pi. 1. TUE CONSTITUTION. 
 
 The Navy. 
 
 United States, and within the exchiaivc juris- 
 diction of the courta of the United fcjtates." 
 (Tlionuia r. I-,oney, 134 U. S., 372.) 
 
 Mandamus against Federal officers. — 
 See nolo to Article 11, section 1, clause 1, 
 "^huuiainurt a.u'ainst heads of d(']>artiuciit,s.'' 
 
 Habeas coi-pus proceedings in Federal 
 courts to discharge persons from the 
 Navy. — \\'here a peraon is being held for trial 
 by court-martial, he will nut bedi.sdiarged from 
 the jurisdiction of the court and from the nuli- 
 tary service even though hi.s original enlistment 
 was fraudulent. (In re Morrissey, 137 U. S., 
 157; Ex parte Rock, 171 Fed. Kep., 240; Dil- 
 lingham V. Booker, l(i3 Fed. Kei)., 090, file 
 595(>-(i; In re Scott, 144 Fed. Kep., 79, file 
 2757^; In re Lessard, 134 Fed. Kep., 305; 
 U. S. V. Reaves, 126 Fed. Kep., 127, file 152-04; 
 Solomon v. Davenport, 87 Fed. Re])., 318; see 
 also file 5624, Feb. 17, 1896; compare Ex parte 
 Baklej, 148 Fed. Rep., 56, afiirmed, Dilling- 
 ham V. Baklev, 152 Fed. Rep., 1022, file 5506-5; 
 and Ex parte Lisk, 145 Fed. Rep., 860, file 
 2757-8, in which latter cases the court ordered 
 the petitioner's release from naval custody.) 
 
 For other decisions, see note to Article I , sec- 
 tion 8, clause 14, "Judgments of courts-martial 
 acting within their jurisdiction not open to re- 
 view l)y civil courts," and see note to section 
 761, Revised Statutes. 
 
 IV. Responsibility of Military Authori- 
 ties FOR Illegal Acts. 
 
 Civil responsibility of persons in military 
 service. — "No man in this country is so high 
 that he is above the law. No officer of the law 
 may set that law at defiance with impunity. 
 All the officers of the Government, from the 
 highest to the lowest, are creatures of the law 
 and are bound to obey it. It is the only su- 
 preme power in our system of Government, and 
 every man who by accepting office participates 
 in its functions is only the more strongly bound 
 to submit to the supremacy and to observe the 
 liabilities wliich it imposes upon the exercise of 
 the authority wliicli it gives." (U. S. v. Lee, 
 106 U.S., 196.) 
 
 A person making an illegal arrest, even when 
 the privilege of the writ of habeas corpus is sus- 
 pended, is liable to damages in a civil suit for 
 such arrest, and to punishment in a criminal 
 prosecution. (Griffin v. Wilcox, 21 Ind., 372.) 
 
 Although martial law exists, "no more force 
 * * * can be used than is necessary to ac- 
 complish the object. And if the power is exer- 
 cised for the purpose of oppression and any in- 
 jury willfully done to person or property, the 
 party by whom or by whose order it is com- 
 mitted, will undoubtedly be answerable." 
 (Luther v. Borden, 7 How., 1.) 
 
 At the close of the War of 1812, Gen. Jackson 
 was sentenced to pay a fine of $1,000 for con- 
 tempt of court, in refusing obedience to a writ of 
 habeas corpus, which fine he paid. (See Dow v. 
 Johnson, 100 U. S., 158, 194, noted under Art. I, 
 sec. 8, clause 11, "Effect of martial law ".) 
 
 Captain of a ship. — "No doubt there are 
 cases where the expert on the spot may be 
 called upon to justify his conduct later in 
 court, notwithstanding that he had sole cona- 
 mand at the time and acted to the best of his 
 
 knowledge. That is the position of the cajitain 
 of a ship." (Moyer v. Peabody, 212 U. S., 78.) 
 
 A commanding officer in the Navy "is not to 
 be shielded from re.sponsibility if he acts out of 
 his authority or jurisdiction, or inflicts private 
 injury, either from malice, cruelty, or any 
 species of opi)reasion founded on considerations 
 independent of public ends. The humblest 
 seaman or marine is to be sheltered under the 
 aegis of the law from any real wrong as well as 
 the highest in office." (Wilkes v. Dinsman, 
 7 How., 89.) [In tliis case suit was brought by a 
 marine against the commanding officer of a 
 squadron, the marine alleging that he was ille- 
 gally detained on board after the expiration of 
 his term of enlistment, and that he was illegally 
 punished by the commanding officer. Judg- 
 ment was given against the squadron com- 
 mander, but was reversed by the Supreme 
 Court, which, while making the above state- 
 ment as to the responsibility of commanding 
 officers, held that in this case the detention was 
 legal, and that the commanding officer had the 
 legal right to infiict punishment; that "the 
 commander was acting as a public officer, 
 invested with certain discretionary powers, 
 and can not be made answerable for any injury 
 when acting within the scope of his authority 
 and not influenced by malice, corruption, or 
 cruelty. His position is quasi judicial. Hence 
 the burden of proof that the officer exceeded his 
 powers is upon the party complaining ; the rule 
 of law being that the acts of a public officer on 
 public matters witliin his jurisdiction, and 
 where he has a discretion, are to be presumed 
 legal until shown by others to be unjustifiable. 
 It is not enough to show that he committed an 
 error in judgment, but it must have been a 
 malicious and willful error." See Dinsman v. 
 Wilkes (12 How., 389^.] 
 
 Members of a court-raartial.— Members 
 of a duly constituted and organized naval court- 
 martial "are responsible in civil courts for any 
 abuse of power or illegal proceedings." (Par. 
 241, Naval Courts and Boards, 1917.) [On gen- 
 eral subject of responsibility of judges of civil 
 courts, see Spalding v. Vilas, 161 U. S., 483, 
 and Bradley v. Fisher, 13 Wall., 335.] 
 
 "If a court-martial has no jurisdiction over 
 the subject matter of the charge it has been 
 convened to try, or shall inflict a punishment 
 forbidden by law, though its sentence shall be 
 approved by the officers having a revisory power 
 of it, civil courts may on an action of a party 
 aggrieved by it inquire into the want of the 
 court's jurisdiction and give him redress." 
 (Dynes v. Hoover, 20 How., 65.) 
 
 "In such cases, as has just been said, all of 
 the parties to such illegal trial are trespassers 
 upon a party aggrieved by it, and he may re- 
 cover damages from them on a proper suit in a 
 civil court by the verdict of a jury. ' ' (Dynes v. 
 Hoover, 20 How., 65.) 
 
 ' ' According to our laws, all military courts are 
 under a constant subordination to the ordinary 
 courts of law. Officers who have abused their 
 powers, though only in regard to their own sol- 
 diers, are liable to prosecution in a court of law, 
 and compelled to make satisfaction. Even any 
 flagrant abuse of authority by members of a 
 court-martial, when sitting to judge their own 
 people and determine in cases entirely of a 
 
 54 
 
The Navy. 
 
 PL 1. THE CONSTITUTION. 
 
 Art. I, Sec. 8. 
 
 military kind, makes them liable to the animad- 
 version of the civil judge." (Johnson v. Dun- 
 can, 6 Am. Dec, (j7!J; 3 Martin (La.), 530.) 
 
 Judge Advocate General of the Navy. — 
 In 1904 suit was entered by Paymaster Robert 
 B. Rod uey, retired, against Capt. Sam. C. Lemly, 
 Judge Advocate General of the Navy, based 
 upon action alleged to have been taken by 
 Captain Lemly in hia official capacity. The 
 rnited States attorney for the District of Co- 
 lumbia was instructed by the Department of 
 Justice to appear in behalf of the Judge Advo- 
 cate General in response to the summoiis upon 
 the latter. June 23, 1904, an order was entered 
 by the chief justice of the Supreme Court of 
 the District of Columbia dismissing the suit. 
 (At law. No. 4G683, Supreme Couirt of the Dis- 
 trict of Columbia; file 204-04.) 
 
 Illegal order not a defense. — "It can 
 never be maintained that a military officer can 
 justify himself for doing an unlawful act by 
 producing the order of his superior. The order 
 may palliate, but it can not justify'." (Mitchell 
 V. Harmony, 13 Wall., 115.) 
 
 ''Neither the Secretary of the Treasury nor 
 the President could nullify the statute, and 
 though the defendant [collector of the port of 
 New York] may have thought himself bound to 
 obey the instructions of the former, his mis- 
 taken sense of duty could not justify his refusal 
 of the clearance, and these instructions afford 
 him no protecticm unless they were authorized 
 in law." (Hendricks i). Gonzalez, 67 Fed. Rep., 
 351; see also Kilbourn v. Thompson, 103 U. S., 
 168.) 
 
 A naval officer is liable in an action of trespass 
 for seizing the plaintiff's ship in ol^edience to 
 an order of the President based upon a misinter- 
 pretation by him of an act of Congress. ''I con- 
 fess the first bias of my mind was very strong in 
 favor of the opinion that, though the instruc- 
 tionsof the Executive could not give a right they 
 might yet excuse from damages. I was much 
 inclined to tliink that a distinction ought to be 
 taken between acts of civil and those of mili- 
 tary officers; and between proceedings within 
 the body of the country and those on the high 
 seas. That implicit obedience which military 
 men usually pay to the orders of their superiors, 
 and wliich indeed is indispensably necessary to 
 every military system appeared to me strongly 
 to imply the principle that those orders, if not 
 to perform a prohiliited act, ought to justify the 
 person whose general duty it is to obey them, 
 and who is placed by the laws of his country in 
 a situation which in general requires that he 
 should obey them. * * * But I have been 
 con\inced ihat I was mistaken, and I have re- 
 ceded from this first opinion. I acquiesce in 
 that of my brethien, wliich is that the in- 
 structions can not change the nature of the 
 transaction nor legalize an act which without 
 them would have been a plain trespass. ' ' (Lit- 
 tle D. Barreme, 2 Cranch, 170, opinion of Cliief 
 Justice Marshall.) [In this case the Supreme 
 Court affirmed the judgment of the lower court 
 against the officer, in the sum of $8,504 damages 
 and costs.] 
 
 "In time of peace, at least, an officer is not 
 obliged to obey an illegal order. * * * It 
 becomes his duty, at once or within a reason- 
 able lime, to appeal to the highest authority 
 
 for revocation, modification, or correction of 
 the illegal order." (Ide v. U. S., 25 Ct. Cls., 
 407; 150 U. S., 517. See also C. M. O. 37, 1915.) 
 
 "Captain Gambler, of the British Navy, by 
 the order of Admiral Boscawen, pulled down the 
 houses of sutlers on the coast of Nova Scotia, 
 who were supplying the sailors with spirituous 
 Liquors, the health of the sailors being injured 
 by frequenting them. The motive was evi- 
 dently a laudable one, and the act done for the 
 pubUc service. Yet it was an invasion of the 
 rights of private property and without the au- 
 thority of law, and the officer who executed the 
 order was held liable to an action, and the sut- 
 lers recovered damages against him to the value 
 of the property destroyed." (See Mitchell v. 
 Harmony, 13 How., 115.) 
 
 An officer of the Army was sued for seizing 
 property of plaintiff diuing the war with Mex- 
 ico imder the order of his superior officer. 
 Judgment was rendered against defendant and 
 affirined bv the Supreme Court, amounting to 
 $104,562.23. Plaintiff was a trader and went 
 from the United States into the adjoining Mexi- 
 can pro\inces, which were in possession of the 
 military authorities of the United States, for 
 the piu-pose of caiTying on a trade which was 
 sanctioned by the executive branch of the 
 Government (as a means to conciliation of the 
 pro\'inces bordering on the L^nited States) and 
 also by the commanding military officer. "It 
 is certainly true as a general rule that no citizen 
 could lawfully trade with a pubUc enemy; and 
 if foimd to be engaged in such illicit traffic hia 
 goods are liable to seizure and confiscation. 
 But the rule has no application to a case of this 
 kind; nor can an officer of the United States 
 seize the property of an American citizen for an 
 act which the constituted authorities, acting 
 within the scope of their lawful powers, have 
 authorized to be done." Accordingly held 
 that "it was improper for an officer of the 
 United States to seize the property upon the 
 ground of trading with the enemy;" and that 
 'the officer w^ho made the seiziu-e can not jus- 
 tify his trespass by shoA\'ing the orders of hia 
 superior officer. An order to commit a trespass 
 can afford no justification to the person by 
 whom it was executed; " that "if the jjower ex- 
 ercised by Col. Doniphan had been within the 
 limits of a discretion confided to him by law, 
 his order would have justified the defendant 
 even if the commander had abused his power 
 or acted from improper motives. But we have 
 already said that the law did not confide to 
 him a discretionary power over private prop- 
 erty. Urgent necessity would alone give him 
 the right; and the verdict finds that this ne- 
 cessity did not exist. Consequently the order 
 given was an order to do an illegal act, to com- 
 mit a trespass upon the property of another, 
 and can afford no justification to the person by 
 whom it was executed. The case of Captain 
 Gambier, to which we have just referred, is di- 
 rectly in point upon this question." (Mitchell 
 V. Harmony, 13 How., 115.) 
 
 "The willful killing of a soldier by a guard 
 may be as clearly murder as the willful killing 
 of one citizen by another. Nor will any order 
 of a superior officer to an inferior in rank justify 
 the willful killing of a person under the peace 
 and protection of the law. A soldier is bound 
 
 55 
 
Art. I, Sec. 8. 
 
 n. 1. THE CONSTITUTION. 
 
 The Navy. 
 
 to obey only the lawful orders of his superiors. 
 If he receive.s an order to do an unlawful act, he 
 is bound neitlier by his duty nor his oath to do 
 it. So far from such an order being a justifica- 
 tion, it makes the party giving the order an 
 jicconi]ilice in the crime. For instance, an or- 
 der from an officer to a soldier to shoot another 
 for disrespectfid words merely would, if obeyed, 
 be murder both in the officer and soldier." 
 (U. S. V. Carr, 25 Fed. Cas. No. 14732; see be- 
 low, " Order not clearly illegal may be defense," 
 and "Extenuating and aggravating circum- 
 stances.") 
 
 Order not clearly illegal may be de- 
 fense. — "The law is that an order given by an 
 iithcer to his private, which does not expressly 
 or clearly show on its face its illegality, the 
 soldier is bound to obey; and such order is his 
 full protection. The first duty of a soldier is 
 obedience, and without this there can be 
 neither discipline nor efficiency in an army. 
 If every subordinate officer and soldier were at 
 liberty to question the legality of the orders of 
 the commander, and obey them or not as he 
 may consider them valid or invalid, the 
 precious moment for action would be wasted. 
 Its law ia that of obedience. No question can 
 be left open of the right to command in the 
 armv, or of the duty of obedience in the soldier. " 
 (In re Fair, 100 Fed. Rep., 149; U. S. v. Lipsett, 
 156 Fed. Rep., 71.) 
 
 An order illegal in itself and not justifiable 
 by the rules and usages of war, so that a man 
 of ordinary sense and understanding would 
 know when he heard it read or given that the 
 order was illegal, would afford a soldier no 
 protection for a crime committed under such 
 order; but an order given by an officer to his 
 private which does not expressly and clearly 
 show on its face or body thereof its own illegality 
 the soldier would be bound to obey and such 
 order would be a protection to him. (Riggs v. 
 State, 43 Tenn. (3 Cold.), 85; U. S. v. Clark, 31 
 Fed. Rep., 710, 717.) 
 
 " Except in a plain case of excess of authority, 
 where at first blush it is apparent and palpable 
 to the conunonest understanding that the order 
 is illegal, I can not but think that the law 
 should excuse the military subordinate when 
 acting in obedience to the order of his com- 
 mander. Otherwise he is placed in the dan- 
 gerous dilemma of being liable for damages to 
 third persona for obedience to an order, or to 
 the loss of his commission and disgrace for 
 disobedience thereto * * *, The first duty 
 of a soldier is obedience, and without this there 
 can be neither discipline nor efficiency in the 
 Army. If every suboidinate officer and 
 soldier were at liberty to question the legality 
 of the orders of the commander, and obey them 
 or not as he may consider them vaUd or invaUd, 
 the camp would be turned into a debating 
 school where the precious moment for action 
 would be wasted in wordy conflicts between 
 the advocates of conflicting opinions. ' ' (McCall 
 V. McDowell, 15 Fed. Cas. No. 8G73; quoted 
 with approval, U. S. v. Clark, 31 Fed. Rep., 
 710, 716; U. S. v. Lipsett, 156 Fed. Rep., 71.) 
 
 "A miUtary subordinate is not hable in 
 damages for making an illegal arrest if he acted 
 in pursuance of an order from his superior wliich 
 was legal on its face; the hability for the false 
 
 imprisonment ia confined to the officer who 
 gave the order." (McCall v. McDowell, 15 
 Fed. Cas. No. 8673.) 
 
 "The defendant does not stand in the situ- 
 ation of an oflicer who merely obeys the com- 
 mand of his superior," if "it ap]>ears that he 
 advised the order and volunteered to execute 
 it when according to miLitarj' usage that duty 
 more properly belonged to an officer of inferior 
 grade." (Mitchell v. Harmony, 13 How., 115.) 
 
 " Soldiers might ieasonal)ly think that their 
 officer had good grounds for ordering them to 
 fire into a distirderly crowd which to them might 
 not appear to be at that moment engaged in 
 a(;ts of dangerous violence, but soldiers could 
 hardly su])pose that their officer could have 
 any good grounds for ordering them to fire a 
 volley down a crowded street when no disturb- 
 ance of any kind was either in progress or 
 apprehended. The doctrine that a soldier is 
 bound under all circumstances whatever to 
 obey his superior officer would be fatal to 
 military discipUne itself, for it would justify 
 the private in shooting the colonel Ijy the oiders 
 of the captain, or in deserting to the enemy on 
 the field of battle on the order of his immediate 
 superior. I think it is not less monstrous to 
 suppose that superior orders would justify a 
 soldier in the massacre of unoffending civihans 
 in time of peace, or in the exercise of inhuman 
 cruelties, such as the slaughter of women and 
 children, during a rebelUon. The only line 
 that presents itself to my mind is that a soldier 
 should be protected by orders for wliich he 
 might reasonably beUeve hia officer to have 
 good grounds. The inconvenience of being 
 subject to two jurisdictions, the sjinpathies 
 of which are not unUkely to be opposed to each 
 other, is an inevitable consequence of the 
 double necessity of preserving on the one hand 
 the supremacy of the law, and on the other the 
 discipline of the Army." (2 Willoughby 
 Con&t., 1195, quoting 1 Stephen's Hist. Cr. L. 
 Eng., 205.) 
 
 "An army is not a deliberative body. It is 
 the executive arm. Its law is that of obedi- 
 ence. No question can be left open as to the 
 right to command in the officer, or the duty of 
 obedience in the soldier." (In re Grimley, 
 137 U. S., 153. See also6 Op. Attv. Gen., 357, 
 365, and Martin v. Mott, 12 Wheat,, 30.) 
 
 Extenuating and aggravating circum- 
 stances. — "In respect to those compulsory 
 duties, whether in reenlistiug or detaining on 
 board or in punishing or imprisoning on shore, 
 while arduously endeavoring to perform them 
 in such a manner as might advance the science 
 and commerce and glory of his country rather 
 than hia own personal designs, a pubhc officer 
 invested with certain discretionary powers 
 never has been and never should be made 
 answerable for any injiu-y when acting within 
 the scope of his authority and not influenced 
 by maUce, corruption, or cruelty * * *. 
 The officer being intrusted with a discretion for 
 pubUc puq)oses is not to be punished for the 
 exercise of it, unless it is first proved against 
 him either that he exercised the power con- 
 fided to bim in cases without his jurisdiction 
 or in a manner not confided to him, as, with 
 maUce, cruehy, or willful oppression, or in the 
 words of Lord Mansfield, that he exercised it 
 
 56 
 
The Navy. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. I, Sec. 8. 
 
 as if 'the heart, is wrong.' In short, it is not 
 enough to show that he committed an error in 
 judgment, but it must have been a malicious 
 and wiUful error." (U. S. v. Clark, 31 Fed. 
 Rep., 710, 716; Wilkes v. Dinsman, 7 How., 89.) 
 
 "In an action of false imprisonment the 
 defendant [plaintiff], by his gross and incen- 
 diary language on the news of the assassination 
 of Abraham LincoLn, the President of the 
 United States, ha^ang provoked his arrest, 
 though the same was illegal, such provocation 
 must be taken into account in mitigation of 
 damages." (McCall v. McDowell, 15 Fed. 
 Cas. No. 8673.) 
 
 "In an action for false imprisonment, where 
 the arrest complained of was illegal but was 
 caused by the defendant while acting as com- 
 manding officer of a military department of the 
 United States, without malice or intention to 
 injure or oppress the plaintiff, but from good 
 motives and considerations involving the 
 public peace and safety, the plaintiff is only 
 entitlecf to recover compensatory damages." 
 (McCall V. McDowell, 15 Fed. Cas. No. 8673.) 
 
 "The move upon Chihuahua was imdoubt- 
 edly undertaken from high and patriotic mo- 
 tives. It was boldly planned and gallantly 
 executed and contributed to the successful 
 issue of the war. But it is not for the court to 
 say what protection or indemnity is due from 
 the public to an officer who, in his zeal for the 
 honor and interest of his country, and in the 
 excitement of military oi>erations, has tres- 
 passed on private rights. That question be- 
 longs to the political department of the Govern- 
 ment." (Mitchell V. Harmony, 13 How., 115.) 
 
 In Beckwith v. Bean (98 U. S., 266) a judg- 
 ment for $15,000 against two Army officers for 
 arresting a civilian during the Civil War on the 
 charge of aiding and abetting deserters from the 
 Army, was reversed on the ground that certain 
 evidence in mitigation had been erroneously 
 excluded by the trial court; and that, if the 
 officers acted in good faith, as the evidence ex- 
 cluded was intended to show, "they were 
 entitled by every consideration of justice to 
 stand before the jury in a more favorable light 
 upon the question of damages than they would 
 or should have stood had they been actuated by 
 ill-will or sought to oppress one whose conduct 
 had not justified the conclusion that he had 
 violated any law." 
 
 "If a homicide be committed by a military 
 guard without malice and in the performance of 
 his supposed duty as a soldier, such homicide 
 is excusable unless it was manifestly beyond the 
 scope of his authority or was such that a man of 
 ordinary sense and understanding would know 
 that it was illegal." (U. S. v. Clark, 31 Fed. 
 Rep., 710.) [In this case it was held that the 
 finding of an Army court of inquiry was entitled 
 to great weight as showing that guard was not to 
 blame.] 
 
 "In charging the jury in U. S. v. Carr, 1 
 Woods, 484 [25 Fed. Cas. No. 14732], Mr. Justice 
 Woods instructed them to 'inquire whether at 
 the moment he fired his piece at the deceased, 
 with his surroundings at that time, he had 
 reasonable grounds to beUeve and did believe 
 that the killing or serious wounding of the de- 
 ceased was necessary to the suppression of a 
 mutiny then and there existing, or of a disorder 
 
 which threatened speedily to ripen into a mu- 
 tiny. If he had reasonable ground so to believe, 
 and did so beUeve, then the kilUng was not un- 
 lawful. * * * But it must be understood 
 tliat the law will not require an officer charged 
 with the order and discipline of a camp or fort 
 to weigh with scrupulous nicety the amount of 
 force necessary to suppress disorder. The ex- 
 ercise of a reasonable discretion is all that is re- 
 quired." (U. S. V. Clark, 31 Fed. Rep., 716.) 
 
 "A public officer is not liable to an action if 
 he falls into error in a case where the act to be 
 done is not merely a ministerial one, but is one 
 in relation to which it is his duty to exercise 
 judgment and discretion, even although an 
 individual may suffer by his mistake. A con- 
 trary principle would, indeed, be pregnant 
 with the greatest mischiefs." (Kendall v. 
 Stokes, 3 How., 87; see also Spalding v. Vilas, 
 161 U. S., 483.) 
 
 "The defendant having caused the arrest and 
 imprisonment of the plaintiff, who was a civil- 
 ian and not amenable to military law, it was his 
 duty to make provision against his being 
 treated with undue harshness and severity or 
 subjected to any treatment or discipline not 
 necessary and proper to restrain him of his 
 liberty for the time being; and having failed to 
 do so and suffered the plaintiff to be confined 
 in the guardhouse with dnmken soldiers and 
 to be compelled to lay in common with military 
 culprits, the damages for the false imj^rison- 
 ment must be enhanced on account of such 
 treatment." (McCall v. McDowell, 15 Fed. 
 Cas. No. 8673.) 
 
 "But in this case the defendant does not 
 stand in the situation of an oflScer who merely 
 obeys the command of liis sui)erior. For it 
 appears that he advised the order and volun- 
 teered to execute it when according to military 
 usage that duty more properly belonged to an 
 officer of inferior grade." (Mitchell v. Har- 
 mony, 13 How., 115.) 
 
 V. Protection of Military Officers foe 
 Acts Done in Performance op Duty. 
 
 Congress may protect oflB.cers against 
 civil or criminal responsibility. — "Congress 
 has power to i^rotect officers and persons engaged 
 or concerned in making arbitrary arrests and im- 
 prisonments, or arrests or imprisonments with- 
 out ordinary legal warrant or cause, under the 
 authority or in pursuance of an act suspending 
 the writ of habeas corpus, by the passage of laws 
 indemnifying such officers and persons against 
 the ordinary legal consequences thereof or de- 
 claring that they shall not be liable to an action 
 or other legal proceeding therefor." (McCall 
 V. McDowell, 15 Fed. Cas. No. 8673.) 
 
 " It is not for the court to say what protection 
 or indemnity is due from the public to an officer 
 who, in his zeal for the honor and interest of his 
 country and in the excitement of military 
 operations, has trespassed on private rights. 
 That question belongs to the political depart- 
 ment of the Government." (Mitchell v. 
 Harmony, 13 How., 115.) 
 
 An act of Congress passed during the Civil 
 War (Mar. 3, 1863, 12 Stat., 756) providecl that 
 any order of the President during the existing 
 war should be a defense to any prosecution, 
 
 57 
 
Art. I, Sec. 8. 
 
 rt. 1. THE CONSTITUTION. 
 
 Land and Naval Forces. 
 
 civil or criminal, "for any search, seizure, 
 arrest or inipriii^nment, made, done, or com- 
 mitteil,or act.s omitted to l)e done," niider au- 
 thority of such order. ThL'^ act was u])held, 
 the coTirt saying: "That an act iiassed alter the 
 event which in effect ratifies what has been done 
 and declarers that no suit shall be sustained 
 agiiinst the ]iarty actina: under color of authority 
 is valid, so far as Congress could have conferred 
 sxich authority before, admifcs of no reixsonable 
 doubt. These are ordinary acta of indemnity 
 passed by all govenmients when the occasion 
 requires." (Mitchell v. Clark, 110 U. S., 633; 
 see also O'Reilly De Camara v. Brooke, 142 
 Fed. Rep., 858; 209 U. S., 45. 
 
 Referring to acta of March 3, 1863 (12 Stat., 
 756), and March 2, 1867 (14Stat.,432),itwasheld 
 by theSuiireme ( 'ourt that " these statutes were 
 enacted among other things to protect parties 
 from liability to ])rosecution for acts done in the 
 arrest and iiu])risomuent of jjersons during the 
 existence of the rebellion, under orders or 
 proclamations of the President or by his au- 
 thority or a])proval, who were charged with 
 partici]>ation in the rebellion, or as aiders or 
 abettors, or as being guilty of (lisloyal ]iractices 
 in aid thereof, or any A-iolation of the usages or 
 the laws of war": that said statutes do not 
 "cover all acts done by olTicers in the military 
 service of the United States, simply because 
 they are acting under the general authority of 
 the President as commander in chief of the 
 armies of the United States"; that, "assuming 
 that they are not liable to any constitutional 
 objection, they only cover acts done under 
 orders or proclamations issued by the President 
 or by his authority" ; that " they do not dispense 
 with the exhibition of the order or authority 
 upon which a party relies"; and, accordingly, 
 that "where certain military ofTicers of the 
 United States, being sued for the arrest and 
 imprisonment of a person in Vermont, not con- 
 nected with the military ser\T.ce of the United 
 States, alleged in their pleas that the arrest and 
 imprisonment were made under the authority 
 and by the order of the President, whose orders 
 as commander in chief of the armies of the 
 United States by the rules and regulations of 
 the Army they were bound to obey, without 
 setting forth any order, general or special, of 
 the President directing or appro\-ing of the acts 
 in question, * * * the pleas were defective 
 
 and insufTicient." (Bean v. Beckwith, 18 
 Wall., 510.) [In the case of In re Mur])hv, 17 
 Fe<l. Cas. No. 9947, it wius held that the act of 
 March 2, 1867, validating arrestof citizens by mil- 
 itary under acts of ( "ongress and jiroclamationa 
 and orders of President or ]>y his authority and 
 approval, was void ius ex post facto. In Griflm 
 i;. Wilcox (21 Ind., 370) theactof March 3, 1863, 
 was held to violate the fourth amendment.] 
 
 "A\hen an officer of the United States is sued 
 for the ])erformance of his duty, the Government 
 is bound to ])rotect him by ])aying the costs of 
 his defense. If he defends himself, and proves 
 upon his trial that he was executing the law, 
 or the orders of his siijierior, his expenses ought 
 to be reimbursed to him." (9 Op. Atty. Gen., 
 51, case of Capt. Wilkes; compare 22 Comp. 
 Dec, 264.) 
 
 "This is required by the plain principles of 
 justice as well as by sound jiolicy. No man of 
 common prudence would enter the public 
 service if he knew that the performance of his 
 duty would render him liable to be plagued to 
 death with lawsuits which he must carry on 
 at his own expense. For this reason it has been 
 the uniform practice of the Federal Govern- 
 ment, ever since its foundation, to take upon 
 itself the defense of its officers who are sued or 
 prosecuted for executing its laws. The follow- 
 ing are some of the cases in which this has been 
 done: Mitchell v. Harmony, 13 How., 115; 
 Elliott V. Swartwout, 10 Pet., 137; Tracy v. 
 Swartwout, 10 Pet., 80; Lawrence v. Allen, 7 
 How., 785; Same v. Caswell, 13 Howard, 488; 
 Greely v. Thompson, 10 How., 225; King v. 
 Maxwell, 17 How., 147; The United States v. 
 Guthi-ie, 17 How., 284; The United States v. 
 Booth, 18 How., 476; Greely v.Burgess, 18 How., 
 413; Stairs v. Peaslee, 18 How., 521; Gelston v. 
 Hoyt, 3 Wheat., 247; Fleming v. Page, 9 How., 
 603; Kendall v. The United States, 12 Pet., 51 
 [524]; Marbury v. Madison, 1 Cr., 137. In Little 
 V. Barreme, 2 Cr., 170, the Government took no 
 l^art in the defense, but it afterwards assumed 
 the judgment and paid it with interest and all 
 charges." (9 Op. Atty. Gen., 51; see also 12 
 Comp. Dec, 208, and 12 Comp. Dec, 191.) 
 
 Civil responsibility for seizure of private 
 property during war. — See note to Art. I, 
 sec 8, cl. 11, " Jiirisdiction over persons in 
 mihtary service during war." 
 
 [Clause 14. Regulation of land and naval forces.] ^* To make Rules for the 
 
 and naval Forces; 
 
 sentinels; fleets, squadrons, separate vessels, 
 boats, crews, are land and naval forces, inte- 
 grally and independently, no less than when 
 compounded in the general mass, and so is the 
 individual soldier and seaman." (U. S. v. 
 Mackenzie, 30 Fed. Cas. No. 18313.) 
 
 Government and Regulation of the land 
 
 I. General Powers of Congress and 
 President. 
 II. Power to Create Courts-Martial. 
 
 III. Finality of Court-Martial Proceed- 
 
 ings. 
 
 IV. Jurisdiction of Courts-Martial. 
 V. Jurisdiction of Civil Courts. 
 
 VI. Application op Constitution to the 
 Navy. 
 
 I. General Powers of Congress and 
 President. 
 
 Land and naval forces. — "Armies, divi- 
 eione, brigades, regiments, companies, guards, 
 
 Powers of Congress and of the Presi- 
 dent. — "The power to make the necessary 
 laws is in Congress; the power to execute in the 
 President. Both powers imply many subordi- 
 nate and auxiliary powers. Each includes all 
 authority essential to its due exercise. But 
 neither can the President in war more than in 
 peace intrude upon the proper authority of Con- 
 gress, nor Congress upon the proper authority 
 of the President. Both are servants of the peo- 
 
 58 
 
Land and Naval Forces. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. I, Sec. 8. 
 
 pie whose will is expressed in the fundamental 
 law." (Ex parte Milligan, 4 Wall., 139.) 
 
 "Congress may increase the Army or reduce 
 the Army or abolish it altogether; but so long 
 as we have a military force, Congress can not 
 take away from the President the supreme com- 
 mand. It is true that the Constitution has con- 
 ferred upon Congress the exclusive power 'to 
 make rules for the Government and regulation of 
 the land and naval forces;' but the two powers 
 are distinct; neither can trench upon the other; 
 the President can not under the guise of military 
 orders evade the legislative regulations by 
 which he in common with the Army must be 
 governed; and Congi'ess can not in the guise of 
 'rules for the government' of the Army impair 
 the authority of the President as Commander 
 in Chief." (Swaim v. U. S., 28 Ct. Cls., 173, 
 221; affirmed, 165 U. S., 553.) 
 
 For other cases see note to Article II, section 
 2, clause 1; and see note to Article II section 
 2, clause 2, as to powers of Congress and of the 
 President with reference to appointments and 
 promotions in the Army and Navy. 
 
 Delegation of power to make regula- 
 tions. — Congress can only legislate in a general 
 way, and large powers are necessarily intrusted 
 to the different departments. They really ex- 
 ercise in this way by delegation, and neces- 
 sarily so, for the purpose of carrjdng on the vast 
 affairs of the Governmentand itsdetails, author- 
 ity which in a strict sense pertains to Congress. 
 (21 Op. Atty. Gen., 438, 439.) 
 
 While of course Congress can not constitu- 
 tionally delegate to the President legislative 
 powers, "it may, in conferring powers consti- 
 tutionally exercisable by him, prescribe or 
 omit prescribing, special rules of their admin- 
 istration or may specially authorize him to make 
 the rules, ^^llen Congress neither prescribes 
 them nor expressly authorizes him to make 
 them, he has the authority, inherent in the 
 powers conferred, of making regulations neces- 
 sarily incidental to their exercise." (McCall's 
 Case,_15Fed. Cas., 1230.) 
 
 It is well settled that executive regulations 
 when directly approved by Congress have the 
 absolute force of law equally with other legis- 
 lative acts. Regulations not approved by Con- 
 gress have the force of law only when founded 
 on the President's constitutional powers as 
 Commander in Chief of the Army and Navy or 
 when consistent with and supplementary to the 
 statutes which have been enacted by Congress. 
 (In re Smith, 23 Ct. Cls., 452, 459.) 
 
 Congress has approved regulations issued bv 
 the Secretary of the Navy with the approval of 
 the President and authorized him to make 
 changes therein in the same manner. (Sec. 
 1547, R. S.) The Navy Regulations so issued 
 by the Secretary of the Na\^ have the force 
 and effect of positive law. (27 Op. Atty. Gen., 
 257; Ex parte Reed, 100 U. S., 13; Smith v. 
 Whitney, 116 U. S., 180.) 
 
 For citation of decisions on subject of ex- 
 ecutive regulations, see note to sections 161 
 and 1547, Revised Statutes; see also Article II, 
 section 2, clause 1. 
 
 Power of President to change estab- 
 lished customs. — A custom which "has come 
 
 down to us from the British Navy and which 
 has been expressed in regulations sanctioned by 
 Congress, has thus become, in effect, a national 
 policy; it is believed that a change therein 
 would involve matters more properly a subject 
 for the exercise of the constitutional powers 
 vested in Congress ' to provide and maintain a 
 Navy ' and ' to make rules for the government 
 and regulation of the land and naval forces.' 
 In other words, the regulation in this case did 
 not prescribe the rule, but was merely declara- 
 tory of the preexisting rule based on established 
 custom . Under such circumstances an amend- 
 ment of the regulation would involve something 
 more than occurs in the ordinary case ; that is 
 to say, it would involve not merely the change 
 of a regulation but a radical change in pre\'iou3 
 custom which Congress has indicated should be 
 continued. That the President's power to 
 make such changes is not without limitation is 
 supported by the Attorney General's opinion 
 holding that the President was without author- 
 ity to make radical changes in regulations pre- 
 scribing in accordance with custom the duties 
 to be performed by staff officers of the Marine 
 Corps. (30 Op. Atty. Gen., 234.)" (File3973- 
 107, Feb. 16, 1915.) 
 
 II. Power to Create Courts-Martial. 
 
 Trials by jury not required in the Navy. — 
 Among the powers conferred upon Congress by 
 the eighth section of the first article of the Con- 
 stitution are the following: "To provide and 
 maintain a Navy; " "to make rules for the gov- 
 ernment and regulation of the land and naval 
 forces; " and the fifth amendment, which re- 
 qmres a presentment of a grand jury in cases of 
 capital or otherwise infamous crimes expressly 
 excepts from its operation ' ' cases arising in the 
 land or naval forces; " and by the second section 
 of the second article of the Constitution it is 
 declared that "the President shall be Com- 
 mander in Chief of the Army and Navy of the 
 United States and of the militia of the several 
 States when called into the actual service of the 
 United States." — "These provisions show that 
 Congress has the power to provide for the trial 
 and punishment of military and naval offenses 
 in the manner then and now practiced by civil- 
 ized nations and that the power to do so is 
 given without any connection between it and 
 the third article of the Constitution defining the 
 j udicial power of the United States ; indeed that 
 the two powers are entirely independent of 
 each other." (Dynes v. Hoover, 20 How., 65; 
 see also U. S. v. Mackenzie, 30 Fed. Cas. No. 
 18313; Ex parte Henderson, 11 Fed. Cas. No. 
 6349; Ex parte Dickey, 204 Fed. Rep., 322.) 
 * ' Under these powers it has always been sup- 
 posed that Congress may provide for the trial 
 by court-martial of persons in the land or naval 
 forces, or in the militia in ser\dce, for military 
 offenses. This is the usual mode of trial for 
 these offenses which had prevailed in England, 
 the country from which we borrowed most of 
 our laws, for more than a hundred years prior 
 to the adoption of our Constitution, and, in 
 fact, ever since England has had any standing 
 i army at all It is also the mode which pre- 
 
 54641°— 22 5 
 
 59 
 
Art. I, Sec. 8. 
 
 PL 1. THE CONSTITUTION. 
 
 Land and Naval Forces. 
 
 vailed in the colonies at the time the Conven- 
 tion sat, and it has been a part of onr code of 
 laws relatino; to the governni(nit of the land and 
 naval forces and of the militia in service ever 
 since we luid a (.io\-crnment . Tliis mode of trial 
 of military men for nulitar\- offenses has become 
 too well fixed in onr system to now admit of 
 question." (Expartellenderson, 11 Fed. Cas. 
 
 No. 6349.) 
 
 "The sixth amendment affirms that 'in all 
 criminal prosecutions the acc-used shall enjoy 
 the ritrht to a speedy and pu])lic trial by an 
 impartial jury,' language broad enough to em- 
 brace all persons and cases; but the fifth, recog- 
 nizing the necessity of an indictment or pre- 
 sentment before anyone can be held to answer 
 for high crimes, excepts 'cases arising in the land 
 or naval forces or in the militia when in actual 
 service in time of war or pul)lic danger;' and 
 the framers of the Constitution doubtless meant 
 to limit the right of trial by jury in the sixth 
 amendment to" those persons who were subject 
 to indictment or presentment in the fifth . i'he 
 discipline necessary to the efficiency of the 
 Army and Navy required other and swifter 
 modes of trial than are furnished by the com- 
 mon-law courts; and in pursuance of the power 
 conferred by the Constitution Congress has de- 
 clared the kinds of trial and the manner in 
 which they shall be conducted for offenses com- 
 mitted while the party is in the military or 
 naval service. Every one connected with these 
 branches of the public service is amenable to 
 the jurisdiction which Congress has created for 
 their government, and while thus serving sur- 
 renders his right to be tried by the civil courts." 
 (Ex parte Milligan, 4 Wall., 3, 123.) 
 
 "It is not denied that the power to make 
 rules for the government of the Army arid Navy- 
 is a power to provide for trial and punishment 
 by military courts without a jury. It has been 
 so imderstood and exercised from the adoption 
 of the Constitution to the present time. " (Ex 
 parte ]\Iilligan,4 Wall., 137, concurring opinion 
 of four justices.) 
 
 In the exercise of this power Congress has 
 enacted rules for the regulation of the Army, 
 known as the Articles of War (sec. 1342, R. S.), 
 and for the Navy, known as the Articles for the 
 Government of the Na\'y (sec. 1624, R. S.). 
 Every officer before he enters on the duties of 
 his office subscribes to these articles and places 
 himself within the power of courts-martial to 
 pass on any offense which he may have com- 
 mitted in contravention of them. (Carters. 
 McClaughry, 183 U. S., 365.) 
 
 "The notion suggested by Sir Matthew Hale 
 and repeated by Sir William Blackstone(Com., 
 vol. 1, p. 213) that 'martial [military] law is 
 built on no settled principles but is entirely 
 arbitrary in its decisions and is in truth not law 
 but something indulged rather than allowed by 
 law ' is an exploded absurdity. A court-martial 
 is a lawful tribunal, existing iDy the same author- 
 ity that any other court exists by, and the law 
 military a branch of the law as valid as any 
 other^ and it differs from the general law of the 
 land m authority only in this that it applies to 
 officers and soldiers of the Army, but not to 
 other members of the body politic, and that it 
 
 islimited to breaches of military duty. * * * 
 There is the less room for the sujx'rficial remark 
 of Sir Matthew Hale to be applied in tlie United 
 States, inasmuch as the Constitution expressly 
 empowers Congress 'to make (special) rules for 
 the government of the land and naval forces' 
 and expressly excepts the trial of cases arising 
 in the land or naval service from the ordinary 
 provisions of law. " (6 Op. Atty. Gen., 413.) 
 
 III. Finality of Court-Martial Proceed- 
 ings. 
 
 Judgments of courts-martial acting 
 witliin their jurisdiction not open to re- 
 view by civil courts.— Courts-martial are law- 
 ful tribunals with autJiority to finally deter- 
 mine any case over which they have jurisdic- 
 tion, and their proceedings when confirmed as 
 provided are not open to review by the civil 
 tribunals except for the purpose of ascertaining 
 whether the military or naval court had juris- 
 diction of the person and subject matter and 
 whether, though having such jurisdiction, it 
 had exceeded its powers in the sentence pro- 
 nounced. (Carter v. McClaughry, 183 U. S., 
 365;seealsoGrafton^.U.S.,206U.S.,,333,348.) 
 
 ' ' With the sentences of courts-martial wliicli 
 have been convened regularly and have pro- 
 ceeded legally and by which punishments are 
 directed not forbidden by law or which are 
 according to the laws and customs of the eea, 
 civil courts have nothing to do nor are they in 
 any way alterable by them." (Dynes v. 
 Hoover, 20 How., 65.) 
 
 "Within the sphere of their jurisdiction the 
 judgments and sentences of courts-martial are 
 as final and conclusive as those of civil tribunals 
 of last resort, and the only authority of civil 
 courts is to inquire whether the military au- 
 thorities are proceeding regularly within their 
 jurisdiction. If they are, they can not be inter- 
 fered with no matter what errors may be com- 
 mitted in the exercise of their lawful jurisdic- 
 tion. " (In re McVey, 23 Fed. Rep., 878.) 
 
 "Undoubtedly errors are committed by 
 courts-martial which a civil tribunal would 
 regard as sufficient ground for a reversal of their 
 judgments if it were sitting as an appellate 
 court. But there is always this radical differ- 
 ence between an appellate court sitting for the 
 correction of errors and a civil court into which 
 the record of a court-martial is collateral — in the 
 former there is not a failure of justice; the ap- 
 pellate court may reverse a judgment or pre- 
 scribe another or award a new trial ; in the latter 
 the court must either give full effect to the sen- 
 tence or pronounce it wholly void. " (Swaim 
 V. U. S., 28 Ct. Cls., 217; affiimed, 165 U. S., 
 553.) 
 
 An officer of the Army attacked the sentence 
 of a court-martial on the ground, among other 
 things, that it was void because in violation of 
 the fifth amendment, declaring that no person 
 shall be subject for the same offense to be twice 
 put in j eopardy of life or limb . On behalf of the 
 Government it was argued that the question 
 was one within the power of the court-martial 
 to decide, and must be held to have been 
 waived or be assumed to have been ruled 
 
 60 
 
Land and Naval Forces. Pt. 1. THE CONSTITUTION. 
 
 Art. I, Sec. 8. 
 
 against the accused, in which case the decision 
 would be conclusive on habeas corpus, since if 
 incorrect it would be merely error and would 
 not go to the jurisdiction. It had been held by 
 the Supreme Court that the courts of the Dis- 
 trict of Columbia had jiirisdiction to decide a 
 similar question in cases tried by them, and that 
 their decision would not be reviewed in that 
 particular on habeas corpus. "It is difficult to 
 see why the sentences of courts-martial, courts 
 authorized by law in the enforcement of a sys- 
 tem of government for a separate community 
 recognized by the Constitution, are not witlrin 
 this rule. Its applicability would seem to be 
 essential to the maintenance of that discipline 
 which renders the Army efficient in war and 
 morally progressive in peace and which is 
 secured by the military code and the decisions 
 of the military courts. ' ' (Carter v. McClaughry, 
 183 U. S., 365.) 
 
 Although error was committed by a naval 
 court-martial in permitting the judge advocate 
 to be present for a short time during a closed ses- 
 sion of the court, this was an error of procedure 
 only, and could not be corrected by a civil 
 court in habeas coi-pus proceedings. "It is 
 clear that the civil courts are in no sense appel- 
 late tribimals for the revision of proceedings in 
 courts-martial. It has been decided that in 
 such cases the civil courts should not interfere 
 if it appears that the court-martial had jurisdic- 
 tion of the person and of the subject matter 
 which was tried before it and that errors in pro- 
 cedure in military courts can be corrected only 
 by the proper mi litary authorities. " (Ex parte 
 Tucker, 212 Fed. Rep., 569.) 
 
 "We must not be understood by anything we 
 have said as intending in the slightest degree to 
 impair the salutaiy rule that the sentences of 
 courts-martial when affirmed by the military 
 tribunal of last resort can not be revised by the 
 civil courts save only when void because of an 
 absolute want of power and not merely voidable 
 because of defective exercise of power pos- 
 sessed." (Carter v. McClaughry, 183 U. S., 
 365; see also Dynes v. Hoover, 20 How., 65, 82; 
 Keyes v. U. S., 109 U. S., 336; Swaim v. U. S., 
 165 U. S., 553; Smith v. Whitney, 116 U. S., 
 167.) 
 
 _ "The court-martial for the trial of Capt. Ober- 
 lin M. Carter was convened by orders issued by 
 the President; and he was therefore the review- 
 ing authority and the court of last resort." 
 (Carters. McClaughry, 183 U. S., 365, 385.) 
 
 "WTiere a court-martial had jurisdiction to 
 try i)etitioner for an offense against the naval 
 regulations and to impose sentence authorized 
 thereby, a civil court in habeas corpus proceed- 
 ing could only review the question of jurisdic- 
 tion and could not pass on alleged errors of law 
 committed by the court-martial or on the 
 severity of the sentence imposed. " (Ex parte 
 Dickey, 204 Fed. Rep., 322.) 
 
 "The case before me shows that the court- 
 martial under which the petitioner was tried 
 was properly constituted; that the charge and 
 specification were in due form and authorized 
 under the regulations for the government of the 
 Navy; that the trial court had jurisdiction of 
 the case and of the subject matter of the charge 
 and acted within the scope of its lawful author- 
 
 ity; that it also acted within its authority in 
 imposing sentence ; that such sentence was duly 
 approved by the commander in chief of the 
 Atlantic Fleet, by whom the court was con- 
 vened; that it was also approved by the Secre- 
 tary of the Navy, the final reviewing authority 
 provided by law to act upon records of courts- 
 martial in cases which do not extend to the loss 
 of life or to the dismissal of a commissioned or 
 warrant officer; that the sentence, therefore, 
 can not be revised by the civil courts. * * * 
 If the petitioner was harshly dealt with and a 
 sentence of undue severity was imposed, such 
 sentence seems to have been within the powers 
 of the court-martial, and it is held by the 
 Supreme Court of the United States that the 
 remedy must be found elsewhere than in courts 
 of law.'" (Ex parte Dickey, 204 Fed. Rep. , 322.) 
 
 WTiat is conduct unbecoming an officer and a 
 gentleman, or conduct to the prejudice of good 
 order and discipline, is a question exclusively 
 within the jurisdiction of a court-martial to 
 determine, and its decision is not subject to 
 review by a civil court. (Carter v. McClaughry, 
 183 U. S., 400; Swaim v. U. S., 165 U. S., 553; 
 Smith V. WTiitney, 116 U. S., 178; Fletcher v. 
 U. S., 26 Ct. Cls., 562. 563, reversed, on other 
 grounds, 148 U. S., 84.) 
 
 Neither the Supreme Court of the District of 
 Columbia nor the Supreme Court of the United 
 States has any appellate jurisdiction over a 
 naval court-martial nor over offenses which 
 such a court has power to try. Neither of these 
 courts is authorized to intertere with the court- 
 martial in the pert'ormance of its duty, by way 
 of writ of prohibition or any order of that nature. 
 (Wales V. Whitney, 114 tl. S., 564, 570; com- 
 pare State V. Peake, 40 L. R. A. (N. S.), 354.) 
 
 Whether the Supreme Court of the District of 
 Columbia has power to issue a writ of prohibi- 
 tion to a court-martial — quaere. (Smith v. 
 Whitney, 116 U. S., 168.) 
 
 "Where an officer of the Army during the War 
 with Spain, after ha\dng been acquitted by a 
 court-martial of charges preferred against him, 
 was, by direction of the commanding generals 
 retried by the court-martial on the same charge, 
 and was convicted and dismissed from the serv- 
 ice, and thereafter peace having been declared, 
 and its term of enlistment ha^•ing expired, his 
 regiment was mustered out and discharged, it 
 was held that mandamus would not He on his re- 
 lation against the Secretary of War to compel the 
 respondent to cause the relator to be mustered out 
 and discharged. " (Brown t'. Root,18 App. D.C., 
 239.) [In this case there was not a second trial, 
 but a re\ision by the court of its finding, by order 
 of the convening authority.] "The United 
 States Court of Claims would probably have juris- 
 diction of an action by the relator to establish 
 the validity of liis claim to salary accruing 
 after the date of his dismissal. " (Same case.) 
 
 "When the offense charged is trivial and the 
 punishment is likewise trivial, a civil court 
 should not be called upon to examine the legal- 
 ity of the sentence of a court-martial; and when 
 called upon is not required by substantial jus- 
 tice to apply a stricter rule than that which 
 I^revails in ordinary criminal cases. " (Weir- 
 man V. U. S., 36 Ct. Cls., 236, 239.) 
 
 61 
 
Art. I, Sec. 8. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Land and Naval Forces. 
 
 IV. Jurisdiction ok Couhts-Maktial. 
 
 Persons subject to jurisdiction of Federal 
 courts-martial. — Everyone connected with 
 the military and naval service is amenable 
 to the jurisdiction which Congi-ess has created 
 for their government, and while thus serving 
 surrenders his right to be tried by the civil 
 courts. (Ex parte Milliffiin, 4 Wall., 3, 123. 
 See notes to sec. 1G24, K. S.) The jurisdic- 
 tion of courts-martial includes: 
 
 Retired oncers.— (Runkle v. U. S., 19 Ct. Cls., 
 396; 122 U. S., 543; Closson v. U. S., 7 App. 
 (D C). 460; sees. 1256 and 1457, R. S.; Naval 
 Dig., 1916, 539.) 
 
 Chiefs of bureaus in the Navy Department. — 
 (18 Op Attv. Gen., 176; see also Smith v. U. S., 
 26 Ct. Cls.," 143; Smith r. Whitney, 1J6 U. S., 
 181; Wales v. Whitney, 114 U. S., 564.) 
 
 Judge Advocate General of the Army .—{SwAim 
 V. U. S., 28 Ct. Cls., 173; 165 U. S., 553.) 
 
 Clerks to paymasters in the Navy, although 
 neither oflicers (in a constitutional sense) nor 
 enlisted men. (Ex parte Reed, 100 U. S., 
 13; Johnson v. Savre, 158 U. S., 109; U. S., v. 
 Bogart, 24 Fed. Cas. No. 14616; In re Reed, 
 20 Fed. Cas. No. 11636; In re Bogart, 3 Fed. 
 Cas. No. 1596. But see Ex parte Van Vranken, 
 47 Fed. Rep., 888, reversed, 163 U. S., 694.) 
 [Paymasters' clerks were not strictly officers 
 of the Na\y at the time these decisions were 
 rendered (U. S. v. Mouat, 124 U. S., 303). 
 Their status has since been changed and they 
 are now officers of the Navy. (Naval appro- 
 priation act Mar. 3, 1915, 38 Stat., 942; 27 
 Op Atty. Gen., 157; see also U. S. v. Hendee, 
 124 U. S., 309.)] 
 
 Army contractors, under a specific statutory 
 pro\'ision subjecting them to jiu-isdiction of 
 courts-martial (Holmes v. Sheridan, 12 Fed. 
 Cas. No. 6644); but only for fraud or willful 
 neglect of duty in connection with their con- 
 tracts (Ex parte Henderson, 11 Fed. Cas. 
 No. 6349). 
 
 Naval Militiamen, when employed in the 
 service of the United States in time of war or 
 public danger (File 3973-107, Feb. 16, 1915; 
 Johnson v. Sayre, 158 U. S., 109, 114); or for 
 refusing to obey the order of the President 
 calling them forth into the ser\dce of the 
 United States (Martini). Mott, 12 Wheat., 19; 
 Houston V. Moore, 5 Wheat., 1; naval militia 
 act, Feb. 16, 1914, sec. 5, 38 Stat., 285). 
 
 Civilians. — As to trials of civilians by mili- 
 tary courts in time of war, see note to Art. I, 
 sec. 8, clause 11, "Military jurisdiction over 
 civilians in time of war." 
 
 Persons lawfully called, drafted or ordered 
 into, or to duty or for training in, the military 
 service are subject to jurisdiction of Army 
 courts-martial from the dates they are required 
 by the terms of the call, draft, or order to 
 obey same; all retainers to the camp and all per- 
 sons accompanying or serving with the armies 
 of the United States without the territorial 
 jurisdiction of the United States, and in time 
 of war all such retainers and persons accom- 
 panying or serving with the armies of the 
 United States in the field both within and 
 without the territorial jurisdiction of the 
 United States; all persons admitted into the 
 Regular Army Soldiers' Home at Washington, 
 
 D. C; all persons under sentence adjudged by 
 courts-martial. (Act Aug. 29, 1916, sec. 3, 39 
 Stat., 650, amending sec. 1342, R. S., art. 2; 
 see Ex parte (ierlach, 247 Fed. Rep., 616.) 
 
 All person.s who in lime of war, or of rebel- 
 lion against the United States, are found in the 
 capacity of spies, etc. (Sec. 1624, R .S., art. 5.) 
 l)e facto emisted man. —'Where a man without 
 enlisting in the Navy served the full term of 
 enlistment, he is entitled to an honorable dis- 
 charge and on reenlistment to the benefits 
 of his de facto enlistment. (File 5839, July 5, 
 1904; see also 26 Op. Atty. Gen., 319; Circular 
 War Department, Mar. 18, 1901.) 
 
 A fraudulent enlistment is still an enlistment, 
 and a man so enlisting is de facto in the service 
 and subject to the jurisdiction of a naval court- 
 martial. (File 5624, Feb. 17, 1896; U. S. v. 
 Reaves, 126 Fed. Rep., 127, file 152-04; Ex 
 parte Rock, 171 Fed. Rep., 240; Dillingham v. 
 Booker, 163 Fed. Rep., 696, file 5956-6; In re 
 Scott 144 Fed. Rep., 79, file 2757-4; In re Les- 
 sard, 134 Fed. Rep. , 305; Solomon v. Davenport, 
 87 Fed. Rep., 318; In re Morrissey, 137 U. S., 
 157; compare Ex parte Bakley, 148 Fed. Rep., 
 56, affirmed, Dillingham v. Bakley, 152 Fed. 
 Rep., 1022, file 5506-5, and Ex parte Lisk, 145 
 Fed. Rep., 860, file 2757-8.)] 
 
 "It seems to me illogical to say that a man 
 can commit a crime and when arrested obtain 
 a discharge on the ground that the original en- 
 listment was not regular or proper." (In re 
 Hamilton and Carroll, Superior Court, Fulton 
 Co. (Ga.) Atlanta Circuit, file 7969and 7988-04; 
 see also. In re McVey, 23 Fed. Rep., 878.) 
 
 Soldier ivhose enlistment has expired. — "The 
 proceedings against the prisoner having been 
 instituted while he was clearly within the 
 jurisdiction of the military authorities, by the 
 preferring of charges and by his arrest as well 
 as by the forwarding of the charges to head- 
 quarters with an application for the appoint- 
 ment of a coiurt-martial for his trial, the question 
 for determination is, Did that jurisdiction cease 
 and expire at the end of the prisoner's term 
 of enlistment so that all proceedings after that 
 date were void? The general rule is that when 
 the jurisdiction of a com-t attaches in a par- 
 ticular case by the commencement of pro- 
 ceedings and the arrest of the accused, it will 
 continue for all the purposes of trial, judgment, 
 and execution. * * * The general rule is 
 grounded in sound reason. Many of the 
 greatest military offenses are not cognizable by 
 the courts of common law. A soldier might be 
 guilty on the eve of the expiration of his term 
 of enlistment of the grossest insults to his 
 officers or of disobedience of orders or of deser- 
 tion in the face of an enemy; and if he could 
 not be held for trial after the end of his term 
 he would escape punishment altogether. 
 To hold that in every such case the jinisdiction 
 of a court-martial would cease with the expira- 
 tion of the term of enlistment would be to shield 
 the guilty from punishment, to encourage crime, 
 and to greatly demoralize the military service. 
 The jinisdiction, therefore, in such cases is to 
 be maintained upon the highest considerations 
 of public policy. But such considerations are 
 not alone sufficient to support the jmisdiction 
 of a court which has power to deal with Ufe, 
 liberty, and property. The jurisdiction of a 
 
 62 
 
Land and Naval Forces. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. I, Sec. 8. 
 
 criminal court must rest upon sound principles 
 of law and not merely upon considerations of 
 public interest and convenience. It fre- 
 quently happens that the guilty go acquit 
 because there is no lawful mode of trial and 
 punishment provided. The jurisdiction in 
 the cases named and in many others of like 
 character must therefore be upheld upon the 
 ground first mentioned, to- wit, that the covut- 
 martial acquired it by the proper commence- 
 ment of proceedings and could not be divested 
 of it by any subsequent change in the status 
 of the accused; and this reason applies as well 
 to a case where the crime is one known to the 
 common or statute law, as to one in which the 
 offense is pm^ely military." (Barrett v. Hop- 
 kins, 7 Fed. Rep., 312; see also, In re Bogart, 
 3 Fed. Gas. No. 1596; In re Bii'd, 3 Fed. Cas. 
 No. 1428; file 26251-5447, Dec. 8, 1911; 9 comp. 
 Dec, 229.) 
 
 If before the expiration of his term of service 
 an enlisted man commits a military crime, for 
 the purpose of trying such offense an arrest or 
 restraint would be justifiable. (U. S. v. Tra- 
 vers, 28 Fed. Cas. No. 16537, Mr. Justice 
 Story.) 
 
 The statute of limitations applicable to trials 
 by court-martial for desertion from the Navy 
 provides, ' ' That said limitation shall not begin 
 until the end of the term for which said person 
 wasenHstedin theservice." (Art. 62, A. Q. N., 
 sec. 1624, R. S., as amended by act Feb. 25, 
 1895, 28 Stat., 680.) 
 
 The statute authorizing detention of en- 
 listed men in the Navy under certain circum- 
 stances beyond the expiration of the term for 
 wliich they were enlisted provides "that all 
 persons sent home or detained by a command- 
 ing officer, according to the provisions of this 
 act, shall he subject in all respects to the laws 
 and regulations for the government of the 
 Navy until their return to an Atlantic or 
 Pacific port and then- regular discharge." 
 Sec. 1422, R. S., as amended by act Mar. 3, 
 1875, 18 Stat., 484.) 
 
 Officer dismissed from Army. — Where an ac- 
 cused is proceeded against as an officer of the 
 Army or Navy and jurisdiction attaches in 
 respect of him as such, this includes not only 
 the power to hear and determine the case, but 
 the power to execute and enforce the sentence 
 of the law. Having been sentenced, his status 
 was that of a person held by authority of the 
 United States as an offender against its laws, 
 although pursuant to the sentence he had oeen 
 dismissed before entering upon the period of 
 imprisonment adjudged. The principle that 
 where jurisdiction has attached, it can not be 
 divested by mere subsequent change of status 
 has been applied as justifying the trial and 
 sentence of an enlisted man after expiration of 
 the term of enlistment and the execution of 
 sentence after many years and the severance 
 of all connsction with the Army. (Carter v. 
 McClaughry, 183 U. S., 365, citing Barrett v. 
 Hopjiins, 7 Fed. Rep., 312, Coleman v. Ten- 
 nessee, 97 U. S., 509; 16 Op. Atty. Gen., 349; 
 and Ex parte Mason, 105 U. S., 696; see also 
 Rose V. Roberts, 99 Fed. Rep., 948.) 
 
 Soldier discharged from the Army.- — "Soldiers 
 sentenced by court-martial to dishonorable 
 discharge and confinement shall, until dis- 
 
 charged from such confinement, remain sub- 
 ject to the Articles of War and other laws re- 
 lating to the administration of military justice. " 
 (Act June 18, 1898, sec. 5, 30 Stat., 484; In re 
 Bird, 3 Fed. Cas. No. 1428; In re Craig, 70 
 Fed. Rep., 969; Ex parte Wildman, 29 P^ed. 
 Cas. No. 17653a; Carter v. McClaughry, 183 U. 
 S., 365; see also act Aug. 29, 1916, noted 
 above, under "Civilians.") 
 
 Persons discharged from the Navy. — "And if 
 any person, being guilty of any of the offenses 
 described in this article while in the naval 
 service, receives his discharge, or is dismissed 
 from the service, he shall contini.e to be liable 
 to be arrested and held for trial and sentence 
 by a court-martial in the same manner and to 
 the same extent as if he had not received such 
 discharge nor been dismissed." (Art. 14, 
 Articles for the Government of the Navy, sec. 
 1624, R. S.; In re Bogart, 3 Fed. Cas. No. 1596; 
 see also In re Bird, 3 Fed. Cas. No. 1428, noted 
 under sec. 1426, R. S., "Effect of discharge," 
 and see file 28550-951:3, May 13, 1919; U. S. 
 ex rel. Viscardi v. MacDonald, 265 Fed. Rep., 
 695; U. S. ex rel. Sartartonio v. Warden of 
 Naval Piison, 265 Fed. Rep., 787; 31 Op. Attv. 
 Gen., 521.) 
 
 Persons in constructive custody of civil courts.— 
 Where an officer of the Army is arrested by the 
 civil authorities on the charge of felony and re- 
 leased on bail, he is amenable to the military au- 
 thorities and may be tried by them for the mili- 
 tary offense involved. However, "Although 
 not necessary in the actual case, yet in deference 
 to the spirit of our institutions and to the civil 
 authorities, it may be expedient for the mili- 
 tary authorities to suspend the trial of the 
 military relations of the act of killing * * * 
 until the civil relations of that act shall have 
 been tried by the civil magistrate." (6 Op. 
 Atty. Gen., 413; see also 21 Op. Atty. Gen. 504.) 
 
 The fact that an enlisted man convicted by 
 a civil court was turned over to naval jurisdic- 
 tion, sentence being suspended, is deemed 
 sufficient authority to proceed with his trial by 
 general court-martial for unauthorized absence. 
 (File 26524-36, Jan. 15, 1912.) 
 
 The naval authorities have jurisdiction to 
 try by court-martial and confine an enlisted 
 man paroled by the civil authorities where the 
 governor of the State consents to such man's 
 delivery to the Navy for disciplinary action. 
 (File 26524-44.) 
 
 An enlisted man tried by court-martial while 
 on parole by civil authorities can not obtain 
 his release from Army jurisdiction by habeas 
 corpus proceedings. The court officials in 
 whose custody he belonged while on parole are 
 the only ones who could raise the question. 
 (Case of John W. Pieper, Supreme Court, Dis- 
 trict of Columbia, 1912; see also In re Fox, 51 
 Fed. Rep., 427.) 
 
 See cases noted below under "Persons not 
 subject to jurisdiction of Federal courts- 
 martial . ' ' 
 
 Persons not subject to jurisdiction of 
 Federal courts-martial. — Civilians — Congress 
 have no power, and never had, to subject a per- 
 son not in the military or naval service of the 
 United States to a trial by a court-martial for any 
 crime, especially one that is capital and in- 
 famous. This is plain enough upon the face of 
 
 63 
 
Art I, Sec. 8. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Land and Naval Forces. 
 
 tlie Constitution. (Ex parte Hendereon, 11 
 Fed. Oils. No. 6349. As to trial of civilians by 
 niilitary courts in time of war, see note to Art. 
 I. sec. 8, clause 11, ".Military juri.sdiction over 
 civilians in time of war, "' and see above, under 
 "Persons subject to jurisdiction of Federal 
 courts- martial;" see also Holmes v. Sheridan, 
 12 Fed. Oils. No. 6644, aa to trials of Army 
 contractors; Martin v. Mott, 12 Wlieat., 19, 
 as to trials of militiixmen prior to entering 
 service of United States; and U. S. v. Tra\'ers, 
 28 Fed. Oas. No. 16.537, as to status of civilians 
 visiting military posts.) 
 
 Officers discharr/ed from Army. — A court- 
 martial has no jurisdiction over an officer of the 
 Army after he has left the service. (24 Op. 
 Atty. Gen., 570; 5 Op. Atty. Gen., 55; compare, 
 cases noted above, "Persons subject to juris- 
 diction of Federal courts-martial. ) 
 
 Officers resigned from tlie Navy. — Unless there 
 be some act of Oongress which prolonged his 
 liability to military courts and military offenses 
 after he had been allowed to leave the ser\dce, 
 an officer is not subject to trial by naval court- 
 martial on charges preferred after that date. 
 (G. O. No. 143, Na\'y Department, Oct. 28, 1869; 
 see In re Bogart, 3 Fed. Gas. No. 1596.) 
 
 Marine whose enlistment has expired. — ^WTiere 
 the enlistment of a marine has expired, and 
 there is no legal authority for retaining him in 
 the ser\-ice, in point of law he is entirely dis- 
 charged from the Marine Ooqis. "If, therefore, 
 he had been restrained of his liberty, or pre- 
 vented from leaving the navy yard, the deten- 
 tion would have been illegal. He might, by a 
 habeas corpus to this court, have been liber- 
 ated, and might well have sustained an action 
 for damages. If under such circumstances he 
 had attempted to depart from the navy yard and 
 had been forcibly prevented, he would have had 
 a right to repel force by force, and if necessary to 
 have taken the life of his opponent. And if he 
 had been killed in this attempt to recover his 
 liberty it might under such circumstances have 
 been murder in the perpetrator. But although 
 the prisoner was thus in contemplation of law 
 discharged, yet he might remain if he and the 
 officers of the garrison pleased. He might re- 
 main in expectation of his pay or of a pension 
 or of a certificate of discharge, which should be 
 a voucher for his good behavior and of his hav- 
 ing left the garrison without desertion. And if 
 he chose to remain (however reluctantly), and 
 to perform military 8er\'ice partially until he 
 could obtain a regular discharge or receive his 
 pay, although not a soldier, he was undoubtedly 
 liable in a limited degree to the regulations 
 necessary to the peace and subordination of a 
 military garrison. And even if he was unlaw- 
 fully detained or remained under an erroneous 
 impression that he was bound so to do, this 
 would not authorize him, in collateral things, 
 to violate the laws. For even an imlawful de- 
 tention will not authorize a man to perpetrate 
 crimes against innocent persons, or on other 
 occasions disconnected with his attempts to re- 
 cover his liberty. * * * But suppose him 
 to be in the most favored condition and entitled 
 to all the rights of a stranger, still in a military 
 post or garrison every person who is voluntarily 
 there, either as a visitor or guest, is bound to 
 
 observe peace and order and to conduct himself 
 inoffensively. If he excite a riot, if he attempt 
 to stal) or wound or kill anyone within the lines, 
 he is liable to be arrested and detained until he 
 can be j)laced in the hands of the proper tri- 
 bimals having jurisdiction to punish him. It 
 is not competent for mere military officers in 
 such cases to apply imprisonment by way of 
 punishment, but it is their duty to apply it if 
 necessary to prevent bloodshed and to restore 
 peace and to keep the offender to answer over 
 to a competent tribunal." (U. S. v. Travers, 
 28 Fed. Oas. No. 16537, Mr. Justice Story.) 
 
 Naval Militia men participating in cruises roith 
 Regular Navy. — "Until they are called into the 
 service of the United States, Naval Militia men 
 are, and remain, civilians, and consequently 
 are not subject to punishment aa such. The 
 captain is charged with the safety, discipline, 
 and well-being of liis ship. He is not charged 
 by law with the discipUne of the passengers, 
 except in so far as it affects the safety or dis- 
 cipline of his ship, and he is not authorized to 
 administer any punishments on them. He is 
 clothed with full authority in virtue of his po- 
 sition to use necessary force toward Naval Mili- 
 tia men who jeopardize the safety or discipline 
 of the ship or refuse conipUance with general 
 or special orders. In effecting this he is author- 
 ized to use such ordinary methods as may be 
 necessary. He would be justified in limiting 
 offenders to certain parts of the ship or exercis- 
 ing other forms of restraint, or even, if circum- 
 stances demanded, confining the offender to a 
 room, but always with the object of preserving 
 the safety and discipline of the ship and not at 
 all in the sense of inflicting a punishment, as 
 such. * * * The naval commanding officer 
 has supreme authority over all persons on board 
 his ship, including members of militia organiza- 
 tions; and * * * while he can not try the 
 latter by court-martial or impose pimishments 
 upon them imder article 24 of the Articles for the 
 Government of the Navy [section 1624, Re\ised 
 Statutes], nevertheless he may, if necessary, 
 place them in confinement or remove them from 
 the vessel when circTimstances demand, under 
 lawful regulations to be adopted by the De- 
 partment. It should, however, be distinctly 
 understood that such action is not authorized 
 as punishment, but only in so far as is necessary 
 to maintain the discipline of the ship and the 
 supreme authority of the commanding officer." 
 (File 3973-107, Feb. 16. 1915.) 
 
 Persons in constructive custody of civil courts. — 
 An enlisted man arrested as a deserter wliile 
 on parole for a civil offense will not be tried by 
 court-martial, because constructively in the 
 custody of the civil authorities, but should be dis- 
 charged from the Navy as undesirable as of the 
 date of his conviction in the civil courts. (File 
 4495-02, May 27, 1902; see also File 26283-281; 
 In re Wall, 8 Fed. Rep., 85.) 
 
 An enlisted man released by Federal civil 
 authorities on bail should not be placed under 
 restraint upon his return to the Na^^', unless it 
 should develop that he is not to be tried in the 
 civil court, in view of the fact that the civil 
 court has adequate power to cause his appear- 
 ance when required. (File 26283-281, June 27, 
 1911; see also 21 Op. Atty. Gen., 504.) 
 
 64 
 
Land and Naval Forces. 
 
 Pt. 1. THE CONSTITUTION 
 
 Art. I, Sec. 8. 
 
 See cases noted above under "Persons sub- 
 ject to jurisdiction of Federal courts- martial." 
 
 Offenses triable by court martial. — It is 
 not possible for an officer to do any act punish- 
 able by the known laws of the land, however 
 foreign that act may be to his duties or imme- 
 diate relation as a soldier, which shall not be 
 cognizable by court-martial. To commit a 
 crime of any sort is, to say the least of it, in gen- 
 eral unofficerlike and ungentlemanly conduct. 
 Undoubtedly cases may and do occur of assault 
 or even homicide by an officer of the Army 
 which constitute a technical crime at law, the 
 facts of wliich when they come to be scrutinized 
 by the eye of a court-martial would be held the 
 reverse of crinTinal and highly honorable to the 
 party accused. These are exceptional cases. 
 The general proposition remains true, that it is 
 the part of an officer and a gentleman to observe 
 the laws of his country, and for not doing it he 
 would in most cases be censurable and in all 
 his conduct would be lawfully subject to mili- 
 tary inquiry. His con\dction or acquittal by 
 the State court of the offense against the general 
 law does not discharge him from responsibility 
 for the military offense invoh^ed in the same 
 facts. (6 Op. Attv. Gen., 413, cited with ap- 
 proval in U. S.V.Clark, 31 Fed. Rep., 710, 712; see 
 also In re Bird, 3 Fed. Cas. No. 1428. As to dou- 
 ble jeopardy, see note to Amendments, Art. V. ) 
 
 "^Yherever our Army or Navy may go be- 
 yond our territorial limits, neither can go be- 
 yond the authority of the President or the 
 jurisdiction of Congress." (Ex parte Milligan, 
 4 Wall., 141.) 
 
 "When the act charged as 'conduct to the 
 prejudice of good order and military discipline' 
 la actually a crime against society which is 
 punishable by imprisonment in the peniten- 
 tiary, it seems to us clear a court-martial is 
 authorized to inflict that kind of punishment. 
 The act done is a civil crime, and the trial is 
 for that act. The proceedings are had in a 
 court-martial because the offender is personally 
 answerable to that jurisdiction." (Ex parte 
 Mason, 105 U. S., 696.) 
 
 " Under every system of military law, for the 
 government of either land or naval forces, the 
 jurisdiction of courts-martial extends to the 
 trial and punishment of acts of military or naval 
 officers which tend to biing disgrace and re- 
 proach upon the service of wluch they are 
 members, whether those acts are done in the 
 performance of military duties, or in a civil 
 position, or in a social relation, or in private 
 business." (Smith v. Whitney, 116 U. S., 168, 
 183.) 
 
 Offense committed by de facto civilian; see 
 note to section 1426, Revised Statutes, "Revo- 
 cation of discharge issued under illegal sentence 
 of court-martial . ' ' 
 
 Court-martial can not convene in foreign 
 jurisdiction. — No naval court or assembly of 
 a judicial character shall be ordered or per- 
 mitted to asssemble or conduct any part of its 
 proceedings in any place subject to foreign 
 jurisdiction. When, however. United States 
 forces have landed in foreign territory for mili- 
 tary purposes, that part of the foreign territory 
 actually occupied by such forces is not subject 
 to foreign jurisdiction -s^-ithin the meaning of 
 this section. (Naval Courts and Boards, 1917, 
 
 sec. 215, citing C. M. O. No. 42, 1915, p. 10, 
 superseding Art. R-703, Navy Regs., 1913.) 
 
 Where naval court-martial was held in place 
 subject to foreign jurisdiction, the proceedings 
 were disapproved. (Ilarwood, p. 57). Com- 
 pare file 26504-254, Oct. 26, 1915, C. M. O. 
 No. 42,1915, p. 10.) 
 
 See note to Article I, section 8, clause 11, 
 under "IV. Discipline of Army." 
 
 Courts-martial other than naval can not 
 convene on vessel of regular Navy. — Naval 
 Militia officers can not convene State courts- 
 martial on board a vessel of the regular Navy 
 in the service of the United States; as the es- 
 tablished policy of this Government, expressed 
 in Navy Regulations which have been approved 
 by Congress and are still in effect, does not 
 permit any other than a naval court-martial 
 to be held on board a naval vessel. (Citing 
 Art. R-3845, Navy Regs., 1913; Art. 987, Navy 
 Regs.,_ 1870; sec. 1547, R. S.) This poUcy has 
 its origin in the customs and regulations of 
 the British Navy (citing McArthur on Courts- 
 Martial, 1813, vol. 1, p. 205). (File 3973-107, 
 Feb. 16, 1915.) By act of August 29, 1916 (39 
 Stat., 598), naval militia courts-martial were 
 authorized to convene on board naval vessels; 
 this act was repealed by naval appropriation 
 act of July 1, 1918 (40 Stat., 708), repealing all 
 laws "relating to the Naval Militia and the 
 National Naval Volunteers. " ) 
 
 "In the interest of the speedy administration 
 of justice, the prompt disposal of public busi- 
 ness, and the general efficiency of the armed 
 forces," it was recommended by the Judge 
 Advocate General of the Navy that article 
 R-384o, Navy Regulations, 1913, be rescinded, 
 in order that Army courts-martial might be 
 permitted to convene on naval vessels. (File 
 26504-339, Sept. 7, 1918.) 
 
 V. Jurisdiction of Civil Courts. 
 
 Jurisdiction of civil authorities over 
 persons in military and naval service. — 
 Commanding officers of the Army, in time of 
 peace, are required under certain conditions 
 to deliver to the civil authorities for trial per- 
 sons subject to military law for whom applica- 
 tion has been duly made by such civil authori- 
 ties. (Act Aug. 29, 1916, 39 Stat., 662, amend- 
 ing sec. 1342, R. S., art, 59.) [No similar 
 statute relating to the Navy; as to naval orders 
 and practice, see note to Article IV, section 2 
 clause 2.] 
 
 There can be no doubt of the power of Con- 
 gress to govern the Army and Navy by bringing 
 offenses committed in either under the cogni- 
 zance of the courts of law. This power is fully 
 executed in respect to the Army in the Rules and 
 Articles of War [cited above]. But no such 
 expression of intention is introduced in the 
 naval code. Whether, then, the courts of law 
 are to take cognizance of offenses committed in 
 the naval forces depends entirely upon the true 
 intent of Congress in that behalf, as expressed 
 in the Crimes acts and in the naval code. (U. 
 S. V. Mackenzie, 30 Fed. Cas. No. 18313.) 
 
 There is no act of Congress authorizing a call 
 by the governor of a State for the surrender of 
 an officer of the Navy charged with having 
 broken the peace of such State, nor any law 
 
 65 
 
Art. I, Sec. 8. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Land and Naval Forces. 
 
 authorizing an arrest by tho executive with a 
 view to tho forcible surrender by him for the 
 purposes of trial. However, advised that the 
 accustnl be ordcTtnl by the Navy Department 
 to surrender hiuiself. (1 Op. Atty. (jien., 244; 
 Bee also note to Art. I, see. 8, clause 13, and 
 Art. IV, sec. 2, clause 2. And see note to sec. 
 355, R. S.} 
 
 "Offenclers in the land forces in certain casee 
 were to be delivered over to the courts of law 
 for trial and punishment. A similar j^rovision 
 is contained m the EnglLsh mutiny act (2 Mc- 
 Arthur, 229), without which it would seem to be 
 thought that, under the general authority to 
 try all cases not capital, courts-martial would 
 have exclusive cognizance of that class of 
 offenses when committed in the army * * *. 
 But no such direction or authority is incor- 
 porated in the naval code, and the design of 
 Congress, therefore, to give the entire jurisdic- 
 tion over the offenses enumerated to the naval 
 courts-martial would seem indubitable * * *. 
 If Congress means its penal law shall apply to 
 ships of war, those vessels will be specifically 
 named." (U. S. v. Mackenzie, 30 Fed. Cas. 
 No. 18313.) [The Federal criminal code, ap- 
 proved Mar. 4, 1909, in terms extends to 
 crimes committed upon the high seas or any 
 other waters within the admiralty and man- 
 time jurisdiction of the United States and out 
 of the jurisdiction of any particular State, on 
 board any vessel "belonging in whole or in 
 part to the United States." 35 Stat., 1142, 1148, 
 sees. 272, 310.] 
 
 In the case of Commander Mackenzie "the 
 act of killing an inferior by a superior, which 
 came under inquiry charged as iinlawful homi- 
 cide, occurred on board a ship of war at sea; 
 and the questions pertinent to the present sub- 
 ject were whether the act was cognizable ex- 
 clusively by a naval coiu-t-martial or by that 
 concmrently with the competent ordinary 
 courts of the United States. The fact of the 
 act having occurred on board a ship of war and 
 at sea influenced materially the arguments on 
 the question of jurisdiction. For this reason 
 Ex-Chancellor Kent and Mr. Justice Betts of 
 the Southern District of New York both in- 
 clined, the former positively, the latter less so, 
 to the opinion that the jm-isdiction of the naval 
 authorities was exclusive, more especially as 
 the act of Congress for the government of the 
 Na\^ does not contain the same recognition of 
 the civil authorities as that for the government 
 of the Army * * *. At the same time each 
 of those eminent jurisconsults maintained con- 
 fidently the competency and legality of a naval 
 court-martial, at least as having concurrent 
 jurisdiction with the civil courts." (6 Op. 
 Atty. Gen., 413.) 
 
 "Undoubtedly the general rule is that the 
 jurisdiction of civil courts is concurrent as 
 to offenses triable before courts-martial." 
 (Franklin v. U. S., 216 U. S., 559, 568, citing 
 6 Op. Atty. Gen., 413, 419, U. S. v. Clark, 31 
 Fed. Rep., 710.) 
 
 " That a Government which possesses the 
 broad power of war, which 'may provide and 
 maintain a navy,' which 'may make rules for 
 the government and regulation of the land and 
 naval forces,' has power to punish an offense 
 committed by a marine on board a ship of war. 
 
 wherever that ship may lie, is a proj)Osition 
 never to be questioned in this court." The 
 intpiiry respects not the extent of the power of 
 Congress, but the extent to which that power 
 has been exercised. (U. S. v. Bevans, 3 Wheat., 
 33G.) 
 
 A Federal statute providing for the punish- 
 ment of miu-der committed on the high seas or 
 on any river, haven, basin, or bay out of the 
 jurisdiction of any particular State, does not 
 apply to murder committed on board a warship 
 while in waters within the jurisdiction of the 
 State of Massachusetts. (U. S. v. Bevans, 3 
 Wheat., 33G.) 
 
 A Federal statute providing "that if any per- 
 son or persons shall, within any fort, arsenal, 
 dockyard, magazine, or in any other place or 
 district of country under the sole and exclusive 
 jurisdiction of the United States, commit the 
 crime of willful murder, such person or persons, 
 on being thereof convicted, shall suffer death," 
 did not include murder committed on a United 
 States warship, as the word "place," the same 
 as the words with which it was associated, was 
 intended to apply to objects which are "in 
 their nature fixed and territorial." (U. S. v. 
 Bevans, 3 'Wheat., 336.) 
 
 "This construction [that the word "place" 
 does not include a warship] is strengthened by 
 the fact that at the time of passing this law the 
 United States did not possess a single ship of 
 war. It may, therefore, be reasonably sup- 
 posed that a provision for the punishment of 
 crimes in the Navy might be postponed until 
 some provision for a navy should be made. 
 While taking this view of the subject, it is not 
 entirely unworthy of remark that afterwards, 
 when a navy was created and Congress did 
 proceed to make rules for its regulation and gov- 
 ernment, no jurisdiction is given to the courts 
 of the United States of any crime committed 
 in a ship of war, wherever it may be stationed." 
 (U. S. V. Bevans, 3 WTieat., 336.) 
 
 The word "place" within the Revised Stat- 
 utes punishing homicide embraces a United 
 States battleship moored at Cob Dock, in the 
 waters of Wallabout Bay, in the East River, 
 these waters being included in the cession of 
 jurisdiction by the State of New York to the 
 Federal Government. "In the Bevans case 
 the defendant was indicted and convicted for 
 murder on board the UnitedStates ship of war 
 Independence while lying in the waters of 
 Boston Harbor and while such vessel was in 
 commission and in the actual service of the 
 United States. In this case the Supreme 
 Court held that it was not the offense com- 
 mitted but the place in which it was com- 
 mitted that determined the question of juris- 
 diction. It appeared that the United States 
 had no jurisdiction over the waters of Boston 
 Bay, in which the gunboat Independence was 
 lying when the murder was committed, but 
 that such waters were within the sole and ex- 
 clusive jiu-isdiction of the State of Massachu- 
 setts. The very opposite is true in the case at 
 bar * * *. 'While the facts of these two 
 cases are very similar, yet they are entirely 
 different and the direct opposite of each other 
 in the matter of jurisdiction * * *. We 
 must, therefore, hold that * .* .* the bat- 
 tleship Indiana was a 'place' within the mean- 
 
 66 
 
Land and Naval Forces. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. I, Sec. 8. 
 
 ing of the United States statutes." (U. S. v. 
 Carter, 84 Fed. Rep., 622.) 
 
 The coiirts of the Philippine Islands have no 
 jurisdiction over offenses committed on board 
 a naval vessel at Cavite, notwithstanding the 
 provision in act No. 1457 of the Philippine 
 Commission that "the jiuisdiction of the city 
 of Manila for police piu-poses only shall extend 
 to 3 miles from the shore into Manila Bay," 
 etc. The laws for the government of the Navy, 
 the Na^'y Regulations, and lawful orders of 
 superior naval authority, embody the only 
 poUce regulations in force on board naval ves- 
 sels. (File 26524-19, Oct. 26, 1910.) 
 
 Article 6 of the Articles for the Government 
 of the Na^'y (sec. 1624, R. S.) does not vest 
 exclusive jurisdiction in a naval court-martial 
 of the crime of miu-der. The general rule is 
 that jurisdiction of civil courts is concurrent as 
 to offenses triable before coiuts-martial. Ac- 
 cordingly, heldih^il homicide committed on a 
 naval hospital ship at Olongapo, Philippine 
 Islands, by a ci^•ihan may be tried by a Federal 
 comt in the first judicial district of the United 
 States to which the offender is brought. Coiuls 
 of the Philippine Islands did not have jurisdic- 
 tion in this case, as the offense, if any, was 
 against the United States, and the Philippine 
 courts only have jurisdiction of offenses against 
 Philippine Government. (28 Op. Atty. Gen., 
 24.) 
 
 Public ships of war of the United States "are 
 exempt even from a foreign jiu^isdiction; and 
 when lying in the domains of another nation are 
 not subject to its coiu-ts, but all civil and crim- 
 inal causes arising on board of them are exclu- 
 sively cognizable in the coiuts of the United 
 States. This is a principle of public law which 
 has its foundation in the equality and inde- 
 pendence of sovereign States, and in the fatal 
 inconveniences and confusion which any other 
 rule would introduce. * * * Every argument 
 by which this exemption is sustained as to for- 
 eign States applies with equal force as between 
 the United States and every particular State 
 of the Union; and it is fortified by other argu- 
 ments drawn from the peculiar nature and pro- 
 visions of our own municipal Constitution." 
 (Argument of Attorney General, U.S. r. Bevans, 
 3 WTieat., 373, 374.) " 
 
 "The principle that ever\' power have ex- 
 clusive jurisdiction over offenses committed 
 on board their own public ships wherever they 
 may be is also demonstrated in a speech of the 
 present Chief Justice of the United States 
 [Marshall], delivered in the House of Repre- 
 sentatives in the celebrated case of Nash aUas 
 Robins, which argument, though made in an- 
 other forum and for another object, applies with 
 irresistible force to every claim of jurisdiction 
 over a public ship that may be set up by any 
 sovereign power other than that to wliich such 
 ship belongs (Bee 266 n). All jurisdiction is 
 founded on consent; either the consent of all 
 the citizens implied in the social compact itself, 
 or the express consent of the party or his sov- 
 ereign. But in this case, so far from there being 
 any consent implied or express, that the State 
 courts should take cognizance of offenses com- 
 mitted on board of ships of war belonging to the 
 United States, those ships enter the ports of the 
 different States imder the permission of the 
 
 State governments, which is as much a waiver 
 of jiuisdiction as it would be in the case of a 
 foreign ship entering by the same permission. 
 A foreign ship would be exempt from the local 
 jurisdiction; and the sovereignty of the United 
 States on board their own ships of war can not 
 be less perfect while they remain in any of the 
 ports of the Confederacy than if they were in a 
 port wholly foreign. But we have seen that 
 when they are in a foreign port they are exempt 
 from the jurisdiction of the country. With 
 still more reason must they be exempt from the 
 jurisdiction of the local tribiuials when they are 
 in a port of the Union. " (Argument for United 
 States, U. S. v. Bevans, 3 Wheat., 352-355.) 
 [In tliis case the Supreme Court held that it 
 was "unnecessary to decide the question re- 
 specting the jurisdiction of the State court." 
 The Attorney General argued that "if the 
 offense in question be not cognizable by the 
 circuit court [of the United States] it is entirely 
 dispunishable," [the State courts being with- 
 out jurisdiction, and the naval courts-martial's 
 .jurisdiction not including this crime, under the 
 Articles for the Government of the Na^•y]. The 
 Supreme Coiu-t, however, merely decided that 
 the Federal circuit court did not have jiuis- 
 diction.] 
 
 'Wliether, if murder should be committed on 
 board a ship of war lying witliin the body of any 
 county, the courts of the State might not inter- 
 pose, may well be doubted. (6 Op. Atty. Gen., 
 413; compare Ex parte Tatem, 23 Fed. Cas. 
 No. 1759; 16 Op. Atty. Gen., 647.) 
 
 A naval court-martial has jiu"isdiction to try 
 an enlisted man of the Navy for fatally wound- 
 ing another enlisted man on board a ship of 
 war in the Thames River, opposite the city of 
 New London, Conn. The civil authorities of 
 Connecticut decided that the case "should be 
 dealt with by the authorities of the United 
 States." The Attorney General stated, among 
 other things, that the State authorities "might 
 probably " have tried the man for manslaughter. 
 (16 Op. Atty. Gen., 578.) 
 
 Murder committed by an enlisted man on 
 board a naval vessel at the navy yard, Phila- 
 delphia, may be dealt with by naval court- 
 martial aa manslaughter. (G. C. M. Rec. No 
 16098; file 6674-10, Mar. 8, 1910.) 
 
 "The charge of Mr. Justice Belts [in U. S. v. 
 Mackenzie, 30 Fed. Cas. No. 18313] is legal 
 authority to the point that a court-martial 
 having lawfully entered upon cognizance of a 
 case, the civil magistrate can not lawfully 
 interrupt or disturb its jurisdiction and right of 
 complete and final action." (6 Op. Atty. 
 Gen., 413.) 
 
 "In any case in which the delivery- of a per- 
 son in the Navy^ or Marine Corps for trial is 
 desired by the civil authorities, Federal or 
 State, and such person is a naval prisoner 
 (which includes any person serving sentence of 
 court-martial or in custody awaiting trial by 
 court-martial or disposition of charges against 
 him), he will not in general be delivered to the 
 Federal or State authorities until he has served 
 the sentence of the naval court-martial, or his 
 case has otherwise been finally disposed of by 
 the naval authorities." (G. O. No. 121, Navy 
 Department. Sept. 17, 1914; Naval Courts and 
 Boards, 1917, sec. 29 (15). 
 
 67 
 
Art. I, Sec. 8. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Land and Naval Forces. 
 
 Ae to jurisdiction of civil aulhorilies over 
 persona in niilitiiry service, see lurtluT, note to 
 Article 1, section 8, clause 11, "Jurisdiction 
 over persons in military service during war," 
 and note to Article 1, section 8, clause 13, 
 "Exemption of Federal officers and subordi- 
 nates from arrest by State authorities." 
 
 VI. Application of Constitution to the 
 Navy. 
 
 Whether constitutional limitations re- 
 strict Congress in legislating for Navy.— 
 The requirement as to presentment or indict- 
 ment by grand jury as a prerequisite to trial for 
 criminal "offenses, does not extend to "cases 
 arising in the land or naval forces, or in the 
 militia. Avhen in actual service in time of war 
 or public danger." (Art. V of the amend- 
 ments, Runkle V. V. S., 19 Ct. Cls., 410, 411.) 
 [As to trials by consular courts, see In re Ross, 
 140 U.S., 453.] 
 
 The Sixth Amendment, entitling the accused 
 to be confronted with the witnesses against 
 him, has no a])plication to the proceedings of 
 courts-martial; nevertheless the principles 
 enumerated by the civil courts are persuasive 
 in gi^^ng effect to a legislative enactment to 
 accomplish a similar intent in proceedings of 
 courts-martial. (MuUan v. U. S., 42 Ct. Cls., 
 157, 176; aflirmed 212 U. S., 516.) 
 
 The right of trial by jurj', guaranteed to 
 persons accused of crime (Art. Ill, sec. 2, clause 
 3, and Art. VI, amendments) does not apply 
 to persons in the Army and Navy, as this right 
 was evidently intended to be limited to persons 
 who were subject to presentment or indictment 
 by grand jurj', and also trial by court-martial 
 was the mode which prevailed in England and 
 in the colonies, at the time the Constitution was 
 framed, for the punishment of persons in the 
 military and naval ser^dce. (See note above, 
 under this clause, "Trials by jury not required 
 in the Navy.") . 
 
 ' ' The Constitution itself provides for military 
 government as well as for civil government. 
 And we do not understand it to be claimed that 
 the civil safeguards of the Constitution have 
 application in cases within the proper sphere of 
 the former * * *. It ia not denied that the 
 power to make rules for the government of the 
 Army and Navy is a power to provide for trial 
 and punishment by military courts without a 
 jury. It has been so understood and exercised 
 from the adoption of the Constitution to the 
 present time. Nor in our judgment does the 
 fifth or any other amendment abridge that 
 power * * *. We think, therefore, that the 
 power of Congress in the government of the 
 land and naval forces and of the militia is not 
 at all affected by the fifth or any other amend- 
 ment." (Conciuring opinion of Chief Justice 
 Chase and three other justices in Ex parte Mil- 
 ligan, 4 Wall. , 137 ; see also In re Bogart, 3 Fed. 
 Cas. No. 1596.) 
 
 ' ' Aside from constitutional provisions, it is a 
 plain dictate of common justice that no person 
 shall be deprived of life, liberty, or property 
 without due process of law." Accordingly, the 
 proceedings of a court-martial are illegal where 
 one member was detached and another substi- 
 
 tuted l)y the Chief of the Bureau of Navigation 
 without authority from the Secretary of the 
 Navy who convened the court. (22 Op. Atty. 
 Gen., 137.) 
 
 " If it be desirable or necessary that the pris- 
 oner in a civil court be present at every pro- 
 ceeding after indictment, it seems to be still 
 more so that a prisoner before a court-martial 
 should be present, for he ordinarily is not repre- 
 sented by counsel learned in the law and watch- 
 ful of his interests, but (as in this case) by some 
 naval officer acting from a humane motive." 
 (Weirman r. U. S., 36 Ct. Cls., 236. See furtlier 
 note to Amendments, Art. V, "Proceedings in 
 absence of accused.") 
 
 "The Constitution does apply, and is univer- 
 sally admitted to apply, with the same force 
 and effect to military courts as to other tribu- 
 nals." (9 Op. Atty. Gen., 230.) [It was held 
 by the same Attorney General that an article of 
 war "authorized 'depositions taken in accord- 
 ance with it to be read in cases not capital;' 
 although the Constitution provides that the 
 accused in criminal prosecutions shall have the 
 right to be confronted with the witnesses against 
 him." (File 26260-1392, June 29, 1911, p. 30, 
 citing 9 Op. Atty. Gen., 311, 312.).] 
 
 "Let us see if the sentence [of an Army 
 court-martial] was void because in violation 
 of the fifth amendment. That amendment 
 declares: 'Nor shall any person be subject 
 for the same offense to be twice put in jeopardy 
 of life or limb.' The Government objects in 
 the outset that the fifth amendment is not 
 applicable in proceedings by court-martial. 
 * * * Resei-ving, however, the determina- 
 tion of these questions, it is nevertheless clear 
 that the system under which the accused was 
 tried, and his status as an officer of the Army, 
 must be borne in mind in deciding whether 
 the amendment, if applicable, was or was not 
 violated by this sentence. * * * The result 
 is that we are of opinion that the sentence can 
 not be invalidated on any of the grounds so 
 far considered." (Carter v. McClaughry, 183 
 U. S., 365.) [It was not decided in this case 
 whether the prohibition against double jeop- 
 ardy, in the fifth amendment, applies to Army 
 courts-martial. But see Grafton v. U. S., 206 
 U. S., 352, noted below.] 
 
 Courts-martial are "courts authorized by law 
 in the enforcement of a system of government 
 for a separate community recognized by the 
 Constitution," and "it is difficult to see why" 
 the finality of their sentences should not be 
 determined by the same rule which has been 
 applied to the courts of the District of Columbia. 
 (Carter v. McClaughry, 183 U. S., 365. For de- 
 cisions as to whether constitutional limitations 
 restrict Congress in legislating for the District 
 of Columbia and for the Territories, see note to 
 Art. IV, sec. 3, clause 2.) 
 
 The fact that Congress is given power by 
 the Constitution "to make rules for the gov- 
 ernment and regulation of the land and naval 
 forces" does not enable it to control the Presi- 
 dent's discretion in respect of those appoint- 
 ments which the same supreme law [Const., 
 Art. II, sec. 2, clause 2] requires him to make. 
 The general power to regulate such forces can 
 not be taken to nullify the specific mandate 
 
 68 
 
The Militia. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. I, Sec. 8. 
 
 to the President to appoint to offices where 
 Congress has made no other provision. (30 
 Op. Atty. Gen., 177; see also note to Art. II, 
 sec. 2, clause 2.) 
 
 "Congress, by express constitutional pro- 
 vision, has the power to prescribe rules for 
 the government and regulation of the Army, 
 but those rules, must be interpreted in con- 
 nection with thie prohibition against a man's 
 being put twice in jeopardy for the same 
 offense. The former provision must not be 
 so interpreted as to nullify the latter." (Graf- 
 toQ^;. U. S.,206U. S., 352.) 
 
 A board of officers organized under an act of 
 Congress for the reduction of the Army is "not 
 a court of any kind," and it is unnecessary to 
 consider "how far its irregularities extended," 
 
 although it is contended by an officer mustered 
 out of the service pursuant to the board 's finding 
 that its proceedings "were in many respects 
 irregular, illegal, and in violation of his consti- 
 tutional rights." (Duryea v. U. S., 17 Ct. Cls., 
 24; see also file 26260-1392, June 29, 1911.) 
 
 See In re Ross (140 U. S., 453), holding that 
 "By the Constitution of the United States a 
 government is ordained and established 'for 
 the United States of America,' and not for 
 countries outside of their limits; and that 
 Constitution can have no operation in another 
 country"; and accordingly that Congress is 
 empowered to authorize the trial of a capital 
 offense by a consular court in China, etc., 
 without indictment by grand jury, and with- 
 out a jury on the trial. 
 
 [Clause 15. Calling forth of the Militia.] ^^ To provide for calling forth the 
 
 Militia to execute the Laws of the Union, suppress Insurrections and repel 
 
 Invasions; 
 
 and proper means to effectuate the object. 
 One of the best means to repel invasions is to 
 provide the requisite force for action before 
 the invader Mmself has reached the soil." 
 (Martin v. Mott, 12 Wheat., 19.) 
 
 "The Constitution, which enumerates the 
 exclusive purposes for which the militia may l)e 
 called into the service of the United States, af- 
 fords no warrant for the use of the militia by the 
 General Government, except to suppress insur- 
 rection, repel invasions, or to execute the laws 
 of the Union, and hence the President has no 
 authority to call forth the Organized Militia of 
 the States and send it into a foreign country 
 with the Regular Army as a part of an army of 
 occupation." (29 Op.' Atty. Gen., 322.) 
 
 "As 'insurrection' is necessarily internal and 
 domestic, within the territorial limits of the 
 Nation, this portion of the sentence can afford 
 no warrant for sending the militia to suppress 
 it elsewhere. And even if an insiurection of 
 our own citizens were set on foot and threaten- 
 ingly maintained in a foreign jm-isdiction and 
 upon our border, to send an armed force there 
 to suppress it would be an act of war which the 
 President can not rightfully do. " (29 Op. Atty. 
 Gen., 322.) 
 
 "The term 'to repel invasion' may be, in 
 some respects, more elastic in its meaning. 
 Thus, if the militia were called into the ser\dce 
 of the General Government to repel an invasion, 
 it would not be necessary to discontinue their 
 use at the boundary line, but they might (with- 
 in certain limits at least) pursue and capture 
 the invading force, even beyond that line, and 
 just as the Regular Army might be used for 
 that purpose. Tliis may well be held to be 
 witliin the meaning of the term 'to repel inva- 
 sion.' Then, too, if an armed force were assem- 
 bled upon our border, so near and under cir- 
 cumstances which plainly indicated hostility 
 and an intended invasion, this Government 
 might attack and captm'e or defeat such forces, 
 using either the Regular Army or the militia 
 for that purpose. This, also, would be but one 
 of the ways of repelling an invasion. But this 
 is quite different from and affords no warrant 
 
 Naval Militia. — Congress has provided ' ' that 
 in the event of war, actual or threatened, with 
 any foreign nation involving danger of inva- 
 sion, or of rebellion against the authority of the 
 Government of the United States, or whenever 
 the President is, in his judgment, unable with 
 the regular forces at his command to execute 
 the laws of the United States, it shall be lawful 
 for the President to call forth such nimiber of 
 the Naval IMilitia of a State, or of the States, or 
 Territories, or of the District of Columbia, as he 
 may deem necessary to repel such invasion, 
 suppress such rebellion, or to enable him to ex- 
 ecute such laws, and to issue liis orders for that 
 purpose, through the governor of the respective 
 State or Territory, or through the commanding 
 officer of the Naval Militia of the District of 
 Columbia, from which State, Territory, or Dis- 
 trict such Naval Militia may be called, to such 
 officers of the Naval Militia as he may think 
 proper." (Sec. 3, act Feb. 16, 1914, 38 Stat., 
 284, repealed by naval appropriation act July 
 1, 1918, 40 Stat., 708.) 
 
 "The authority to decide whether the exi- 
 gencies contemplated in the Constitution of the 
 United States, and the act of Congress * * * 
 in which the President has authority to call 
 forth the militia, to execute the laws of the 
 Union, suppress insurrections, and repel inva- 
 sions, have arisen, is exclusively vested in the 
 President, and his decision is exclusive [con- 
 clusive] upon all other persons." (Martin v. 
 Mott, 12^Vheat., 19; Luther i;. Borden, 7 How., 
 
 ''It is obvious that there are two ways by 
 which the militia may be called into service; 
 the one is under State authority, the other un- 
 der authority of the United States. * * * But 
 the possession of this power, or even the passing 
 of laws in the exercise of it, does not preclude 
 the General Government from leaning upon the 
 State authority, if they think proper, for the 
 purpose of calling the miUtia into service." 
 (Houston V. Moore, 5 Wlieat., 1, 36.) 
 
 "The power to provide for repelling invasions 
 includes the power to provide against the at- 
 tempt and danger of invasion, as the necessary 
 
 69 
 
Art. I, Sec. 8. 
 
 Ft. 1. THE CONSTITUTION. 
 
 The Militia. 
 
 for sending the militia into a foreign country in 
 time of poace and when no invasion is made or 
 throalened." (29 Op. Atty. Gen.. 322.) 
 
 "The only remaining occasion for calling out 
 the militia is 'to execute the laws of the Union.' 
 But this certainly means to execute such laws 
 where, and only where, they are in force and 
 can be executed or enforced. * * * Outside 
 of our own limits ' the laws of the Union ' are not 
 executed by armed force, either regular or mili- 
 tia. * * * ^\^lat is certainly meant by this 
 pro^'ision is, that Congress shall have power to 
 call out the militia in aid of the civil power, for 
 the peaceful execution of the laws of the Union, 
 wherever such laws are in force and may be 
 compulsorily executed^ much as a sheriff may 
 call upon a posse comitatus to peacefully dis- 
 
 gerse a riot or execute the laws. Under our 
 onstitution, as it has been uniformly con- 
 strued from the first, the military is subordinate 
 and subser^•ient to the civil power, and it can 
 be called upon to execute the laws of the Union 
 only in aid of the civil power and where the 
 ci\nl power has jurisdiction of such enforce- 
 ment. Even the Regular Ai-my can be thus 
 called upon only on such occasions; and, cer- 
 tainly, the militia can not be thus called upon 
 at any other." (29 Op. Atty. Gen., 322.) 
 
 Congress has provided that the Naval Militia, 
 when called into the service of the United 
 States, shall be required to serve "either within 
 or without the territory of the United States." 
 (Act Feb. 16, 1914, sec. 4, 38 Stat., 284, Gen. 
 Order No. 77, Feb. 25, 1914, repealed by naval 
 appropriation act July 1, 1918; 40 Stat., 708.) 
 
 Such a provision '"must be read in view of the 
 constitutional power of Congress to call forth the 
 militia only to suppress insurrection, repel in- 
 vasions, or to execute tlie laws of the Union. 
 Congress can not, by its own enactment, enlarge 
 the power conferred upon it by the Constitu- 
 tion; and if this provision were construed to 
 authorize Congress to use the Organized Militia 
 for any other than the three purposes specified, 
 it would be unconstitutional. This provision 
 applies only to cases where, under the Consti- 
 tution, said militia may l^e used outside of our 
 own borders, and was, doubtless, inserted as a 
 matter of precaution and to prevent the pos- 
 sible recurrence of what took place in our last 
 war with Great Britain, when portions of the 
 militia refused to obey orders to cross the 
 Canadian border." (29 Op. Atty. Gen., 322 ) 
 
 Duty outside the United States under 
 selective di'af t law. — The service which may 
 be exacted of tlie citizen undor the Army 
 power, which includes the power to compel 
 military service, is not limited to the specific 
 purposes for which Congress is expressly au- 
 thorized by the militia clause to call the 
 militia; the presence in the Constitution of 
 such express regulations affords no basis for an 
 inference that the Army power, when exerted, 
 is not complete and dominant to the extent of 
 its exertion. (Selective Draft Law Cases, 245 
 U.S., 366.) 
 
 Congress may conscript for military duty in 
 a foreign country; the militia clause is not a 
 limitation upon the war power. (Cox v . Wood, 
 247 U. S., 3.) 
 
 [Clause 16. Power over the militia.] ^^ To provide for organizing, arming, 
 and disciplining the Militia, and for governing such Part of them as may be 
 employed in the Service of the United States, reserving to the States respectively, 
 the Appointment of the Officers, and the Authority of trainhig the Militia 
 according to the discipline prescribed by Congress; 
 
 Naval MiUtia. — Congress made detailed 
 provision for "organizing, arming, and dis- 
 ciplining" the naval militia and " for governing 
 such part of them as may he employed in the 
 service of the United States," by act February 
 16, 1914. (38 suit., 283, G. O. No. 77, Feb. 25, 
 1914; repealed by naval appropriation act July 
 1, 1918, 40 Stat. 708.) 
 
 ' ' Congress is thus expressly vested with the 
 power to * * * provide for governing such 
 part only of the militia of the several States as, 
 having been called forth to execute the laws of 
 the Union, to 6ui)press insurrections, or to repel 
 invasions, is employed in the sei^vice of the 
 United States." (Johnson r. Sayre, 158 U. S., 
 114.) 
 
 "It is also too plain for argument that the 
 power here given to Congress over the militia 
 is of a limited nature and confined to the objects 
 specified in these clauses, and that in all other 
 respects and for all other puqjoses tlie militia are 
 subject to the control and government of the 
 State authorities." (Houston v. Moore, _ 5 
 WTieat., 1, 50, dissenting opinion of Mr. Justice 
 Story.) 
 
 "Congress have no power and never had to 
 subject a militiaman not in the military or naval 
 
 service of the United States * * * to a trial 
 by court-martial for any crime, especially one 
 that is capital or infamous. This is plain 
 enough upon the face of the Constitution." 
 (Ex parte Henderson, 11 Fed. Cas., 1076.) 
 
 The purpose of the naval militia law of 
 February 16, 1914, "is to encourage on the part 
 of the Government the development of a source 
 from which the Nation in time of war may be 
 supplied witli a body of men trained in the 
 handling of the weapons of marine warfare that 
 may immediately 1>e added to the RegularNavy 
 for the efficient handling of vessels of war." 
 Naval vessels loaned to State militia organiza- 
 tions may be used only for the training and in- 
 struction of the militia. ""WTiile it may per- 
 haps be said that in a certain sense the use by 
 the State of IMaryland of the Montgomery for the 
 purpose of quelling 'riots, insurrection, or de- 
 fiance of civil law within the State limits ' is such 
 a use as may tend to promote the efficiency of 
 the naval militia that may 1)0 aboard , it is never- 
 theless considered that such a use of a naval 
 vessel, her armament and equipment, for what 
 is in reality a purely local police work is a use 
 entirely foreign to the promotion of tlie effi- 
 ciency of th% naval militia as contemplated by 
 
 70 
 
Exclusive jurisdiction. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. I, Sec. 8. 
 
 the act of February 16, 1914 * * *." (File 
 4570-194, Mar. 15, 1915.) 
 
 "So long as the militia are acting under the 
 miUtary jurisdiction of the State to wluch they 
 belong, the powers of legislation over them are 
 concurrent in the General and State Govern- 
 ment. Congress has power to provide for organ- 
 izing, arming, and disciplining them, and this 
 power being unlimited, except in the two par- 
 ticulars of officering and training them, accord- 
 ing to the discipline to be prescribed by Con- 
 gress, it may be exercised to any extent tha- 
 may be deemed necessary by Congress. But at 
 State militia the power of the State govern- 
 ments to legislate on the same subjects having 
 existed prior to the formation of the Constitu- 
 tion and not having been prohibited by that in- 
 stniment it remains with the States, subordi- 
 nate, nevertheless, to the paramount law of the 
 General Government operating upon the same 
 subject. ' ' (Houston v . Moore, 5 \\Tieat. ,1,16.) 
 
 ' ' After a detachment of the militia have been 
 called forth, and have entered into the service 
 of the United States, tlie authority of the Gen- 
 eral Government over such detachment is ex- 
 clusive. This is also obvious. Over the na- 
 tional militia the State governments never had 
 or could have jurisdiction. None such is con- 
 ferred by the Constitution of the United States, 
 consequently none such can exist." (Houston 
 V. Moore, 5 IVheat., 1, 17.) 
 
 Congress is empowered to fix the period when 
 a portion of the militia, called forth by the Presi- 
 dent, shall enter the service of the United States 
 and change their character from State to Na- 
 tional militia. "That Congress might by law 
 have fixed the period by confining it to the 
 draft, the order given to the chief magistrate or 
 other militia officer of the State, to the arrival of 
 the men at the place of rendezvous, or to any 
 other ch'cumstance, I can entertain no doubt. 
 This would certainly be included in the more 
 extensive powers of calling forth the militia, or- 
 ganizing, arming, disciplining, and governing 
 them." (Houston v. Moore, 5 "\\lieat., 1, 17.) 
 
 Congress may provide for the punishment by 
 court-martial of a militiaman who refuses or 
 neglects to o))ey the order of the President call- 
 ing forth the militia. "This flows from the 
 power l^e&towed upon the General Government 
 to call them forth, and consequently to punish 
 disobedience to a legal order, and by no means 
 proves that the call of the President places the 
 detachment in the service of the United States." 
 (Houston V. Moore, 5 WTieat., 1, 18.) 
 
 "Although a militiaman who refused to obey 
 the orders of the President calling him into the 
 public ser\dce under the act of 1795 is not, in the 
 sense of that act, ' employed in the service of the 
 United States' so as to be subject to the rules 
 and articles of war, yet he is liable to be tried 
 for the offense under the fifth section of the same 
 act, by a court-martial, called under the au- 
 thority of the United States." (Martin v. Mott, 
 12 Wheat., 19.) Under the same circumstances 
 the militiaman might be tried by a court- 
 
 martial of the State for refusing to respond to the 
 call of the President. (Houston v. Moore, 5 
 ^^lieat., 1.) 
 
 Members of the naval militia, participating 
 with the Regular Navy in cruises for the purpose 
 of training and instruction, are not employed in 
 the service of tlie United States, but remain 
 civilians and consequently are not subject to 
 punishment under the Articles for the Govern- 
 ment of the Navy. The naval officer in com- 
 mand has, however, full authority to enforce 
 any orders which affect the discipline, safety, 
 and well-being of the sliip or any part of the 
 armament, equipment, or crew of the vessel 
 under his command, and to this end may, if 
 necessary, place militiamen in confinement or 
 remove them from the vessel under lawful regu- 
 lations issued by the Na\'y Department, not as 
 punishment, but merely to maintain discipline. 
 (File 3973-107, Feb. 16, 1915; see note to 
 Art. I, sec. 8, clause 14, concerning jurisdiction 
 of Federal courts-martial.) 
 
 Naval militia officers can not impose punish- 
 ments on men belonging to their organizations 
 while cruising on board a vessel of the Regular 
 Navy, nor can naval militia officers convene 
 State courts-martial on such vessels. (File 
 3973-107, Feb. 16, 1915.) By act of Aug. 29, 
 1916, 39 Stat., 598, naval militia courts-martial 
 were authorized to convene on board naval 
 vessels; this act was repealed by naval appro- 
 priations act July 1, 1918 (40 Stat., 708). 
 
 Naval militia officers cruising with the Regu- 
 lar Navy for training and instruction are author- 
 ized by law to perform duty and to exercise au- 
 thority over the naval personnel ot inferior rank, 
 but can not impose punishments upon persons 
 in the naval service. (Pile 3973-107, Feb. 16, 
 1915.) 
 
 "A State statute providing that all able- 
 bodied male citizens of the State between 18 
 and 45, except those exempted, shall be subject 
 to military duty, and shall be enrolled and de- 
 signated as the State militia and prohibiting all 
 bodies of men other than the regularly organized 
 volunteer militia of the State and the troops of 
 the United States from associating together as 
 military organizations or drilling or parading 
 with arms in any city of the State without 
 license from the governor, as to these provisions 
 is constitutional and does not infringe the laws 
 of the United States." (Presser v. Illinois, 116 
 U. S., 252.) 
 
 Federal power dominant. — The militia 
 power reserved to the States by the militia 
 clause of the Constitution, while separate and 
 distinct in its field, and while serving to dimin- 
 ish occasion for exercising the Army power, 
 is subject to be restricted in, or even deprived 
 of, its area of oijeration through the Army 
 power, which includes the power to compel 
 military service, according to the extent to 
 which Congress, in its discretion, finds neces- 
 sity for calling the latter into play. (Selective 
 Draft Law Cases, 245 U. S., 366.) 
 
 [Clause 17. Power of exclusive legislation.] ^' To exercise exclusive Legis- 
 lation in all Cases whatsoever, over such District (not exceeding ten ^iiles 
 square) as may, by Cession of particular States, and the acceptance of Congress, 
 
 71 
 
Art. I, Sec. 9. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Habeas Corpus. 
 
 become the Seat of the Government of the United States, and to exercise 
 hke Authority over all Places purchased l)y the Consent of the Legislature 
 of the State in which the Same shall be, for the Erection of Forts, Magazines, 
 Arsenals, dock-Yards, and other needful Buildings; — And 
 
 See note to section 355, Revised Statutes, as to jurisdiction over naval reservations 
 and other places belonging to the United States. 
 
 [Clause 18. General legislative power. 1 '^ To make all Laws which shall 
 be necessary and proper for carrying hito Execution the foregoing Powers, and 
 all other Powers vested by this Constitution in the Government of the United 
 States, or in any Department or Officer thereof. 
 
 Sectiox 9. [Clause 1. Migration or importation of persons.] ^ The Migra- 
 tion or Importation of such Persons as any of the States now existing shall 
 think proper to admit, shall not be prohibited by the Congress prior to the 
 Year one thousand eight hundred and eight, but a tax or duty may be imposed 
 on such Importation, not exceeding ten dollars for each Person. 
 
 [Clause 2. Writ of habeas corpus.] - The privilege of the Writ of Habeas 
 Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion 
 the public Safety may require it. 
 
 Cranch, 75, 101; followed by Taney, C. J., in 
 Ex parte Merryman, 17 Fed. Cas. No. 9487; 
 see also Ex parte Benedict, 3 Fed. Cas., 1292; 
 McCall V. McDowell, 15 Fed. Cas. No. 8673; In 
 re Kemp, 16 Wis., 359, 377; Griffin v. Wilcox, 21 
 Ind., 383; 8 Op. Atty. Gen., 372; Warren v. 
 Paul, 22 Ind., 277; Prigg v. Pennsylvania, 16 
 Pet., 619; Wright i-. Johnson, 5 Ark., 687; In re 
 Boyle, 6 Idaho, 609, 57 Pac, 706,45 L. R. A., 832; 
 Ex parte Moore, 64 N. C, 802.) 
 
 The President has power to declare martial 
 law, and as a necessary consequence to suspend 
 the privilege of the writ of habeas corpus. 
 Martial law and the pri^■ilege of this writ are 
 wholly incompatible. The remark of Chief 
 Justice Marshall in the Bollman case seems to 
 have been an obiter dictum [a remark made by 
 the way, or incidentally]; and at the time of 
 Chief Justice Taney's opinion, the President 
 had not declared martial law; the case of Ex 
 parte Benedict is to be distinguished for the 
 same reason. (Ex parte Field, 9 Fed. Cas. No. 
 4761; see also Ex parte Vallandigham, 27 Fed. 
 Cas. No. 16816.) 
 
 "There is a plain distinction between the 
 suspension of the writ in the sense of the clause 
 of the Constitution, and the right of a military 
 commander to refuse obedience when justified 
 by the exigencies of war, or the ipso facto sus- 
 pension which takes place wherever martial 
 law actually exists, wliich the Chief Justice 
 seems to have overlooked. But this kind of 
 suspension, which comes with war and exists 
 without proclamation or other act, is limited 
 by the necessities of war. It applies only to 
 cases where the demands upon the officer's 
 time and ser^dce8 are such that he can not con- 
 sistently with his superior military duty, yield 
 obedience to the mandates of the civil authori- 
 ties, and to cases arising within districts which 
 are properly subjected to martial law. In cases 
 of the latter description, it is probable that the 
 civil magistrates would be bound to take judi- 
 cial notice of the existence of martial law, by 
 
 Definition. — The writ of habeas corpus is a 
 high prerogative writ known to the common 
 law, the great object of which is the liberation 
 of those who may be imprisoned without suf- 
 ficient cause. It is in the nature of a writ of 
 error to examine the legality of the commit- 
 ment. (Ex parte Watkins, 3 Pet., 202.) [The 
 ordinary writ of habeas corpus, known as "ha- 
 beas corpus ad subjuciendum," is the written 
 order of a judge or court of competent jurisdic- 
 tion, addre&sed to a person who is alleged to 
 restrain another of his liberty without authority 
 of law, and requiring the speedy production in 
 court of the person so alleged to be illegally 
 restrained, together with a return or statement 
 setting forth the true cause of such restraint. 
 If satisfactory cause be shown at the hearing, 
 the court will remand the prisoner into the 
 custody of the respondent; otherwise his im- 
 mediate release will be ordered.] 
 
 "For the meaning of the term habeas corpus, 
 resort must unquestionably be had to the com- 
 mon law; but the power to award the writ by 
 any of the courts of the United States must 
 be given by the written law." (Ex parte 
 Bollman, 4 Cranch, 75.) 
 
 Only "privilege" of writ may be sus- 
 pended. — "Suspension of the privilege of the 
 writ of habeas corpus does not suspend the 
 writ itself. The writ issues as a matter of 
 course; and on its retiu-n the court decides 
 whether the applicant is denied the right of 
 proceeding any further." (Ex parte Milligan, 
 4 Wall., 2; see also, In re Fagan, 8 Fed. Cas. No. 
 4604.) 
 
 May be suspended only by authority of 
 Congress. — "If at any time the pubUc safety 
 should require the suspension of the powers 
 vested by this act in the courts of the United 
 States [that is, the power to issue writs of ha- 
 beas corpus], it is for the legislature to say bo. 
 The question depends on political considera- 
 tions on which the legislature is to decide." 
 (Per Marshall, C. J., Ex parte Bollman, 4 
 
 72 
 
Bills of Attainder. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. I, Sec. 9. 
 
 which their functions are so far suspended, but 
 as to the former, it would seem that the military 
 officer should, if practicable, make return of 
 the facts showing his excuse." (In re Kemp, 
 16 Wis., 359.) 
 
 Only Congress can repeal all power to issue 
 the writ; but the President has lawful power 
 to suspend the privilege of persons arrested in 
 case of a great and dangerous rebellion, for he is 
 especially charged by the Constitution with the 
 "public safety." (10 Op. Atty. Gen., 74; see 
 also In re Dugan, 6 D. C, 139.) 
 
 By act of March 3, 1863, Congress authorized 
 the President to suspend the privilege of the 
 wi'it of habeas corpus "during the present re- 
 bellion," whene\'er in his judgment the public 
 safety may require it. "This law was passed 
 in a time of gi'eat national peril, when oiu" 
 heritage of free government was in danger. 
 An armed rebellion against the national au- 
 thority, of greater proportion than liistory af- 
 fords an example of, was raging; and the pub- 
 lic safety required that the privilege of the 
 writ of habeas corpus should be suspended. 
 The President had practically suspended it, 
 and detained siispected persons in custody 
 without trial; but his authority to do this was 
 questioned. It was claimed that Congress 
 alone could exercise this power; and that the 
 legislature, and not the President, should 
 judge of the political considerations on which 
 the right to suspend it rested. The privilege 
 of this gi'eat writ had never before been with- 
 held from the citizen; and as the exigence of 
 the times demanded immediate action, it was 
 of the highest importance that the lawfulness 
 of the suspension should be established. It 
 was under these circumstances, which were 
 such as to arrest the attention of the country, 
 that this law was passed . " (Ex parte MilUgan, 
 4 Wall., 2, 115; see also, Matter of Dunn, 8 Fed. 
 Cas. No. 4171; Matter of Oliver, 17 Wis., 686.) 
 
 " It is essential to the safety of every Govern- 
 ment that in a great crisis like the one we have 
 just passed through [civil war] there should be 
 a power somewhere of suspending the writ of 
 habeas corpus." (ExparteMilligan, 4Wall., 2.) 
 
 When privilege of writ may be sus- 
 pended. — Under the Constitution the privilege 
 
 [Clause 3. Bills of attainder and ex post facto laws.]^ No Bill of Attainder 
 or ex post facto Law shall be passed. 
 
 oi the writ of habeas corpus may be suspended 
 only in two cases, namely, "rebellion," and 
 "invasion." (Matter of Keeler, 14 Fed. Cas. 
 No. 7637.) 
 
 Effect of suspmilion. — "A citizen not con- 
 nected with the military service and resident 
 in a State where the courts are open and in the 
 proper exercise of their jurisdiction can not, 
 even when the privilege of the writ of habeas 
 corpus is suspended, be tried, convicted, or 
 sentenced otherwise than by the ordinary 
 courts of law." (Ex parte Milligan, 4 Wall., 2; 
 but see concurring opinion of four justices in this 
 case; see also McCall v. McDowell, 15 Fed. Cas. 
 No. 8673.) 
 
 "In the emergency of the times, an imme- 
 diate public investigation according to law may 
 not be possible; and yet the peril to the country 
 may be too imminent to suffer such persons to 
 go at large. Unquestionably, there is then an 
 exigency which demands that the Government, 
 if it should see fit, in the exercise of a proper 
 discretion, to make arrests, should not be re- 
 quired to produce the person arrested in answer 
 to a writ of habeas corpus. The Constitution 
 goes no further. It does not say that after a 
 writ of habeas corpus is denied a citizen, that 
 he shall be tried otherwise than by the course 
 of common law. If it had intended tliis result, 
 it was easy by the use of direct words to have 
 accomplished it." (Ex parte Milligan, 4 
 Wall., 2.) 
 
 A person making an Ulegal arrest, even when 
 the privilege of the writ of habeas corpus is 
 suspended, is Liable to damages in a civil suit 
 for such arrest and to punishment in a criminal 
 prosecution. (Griffin v. Wilcox, 21 Ind., 372.) 
 
 Effect of President's proclamation suspend- 
 ing privilege of writ is to stop proceedings upon 
 habeas corpus although commenced prior to 
 date of proclamation. (Matter of Dunn, 8 Fed. 
 Cas. No. 4171.) 
 
 As to power of Congi'ess to protect military 
 officers against civil or criminal responsibility, 
 see note to Article I, section 8, clause 13. 
 
 On general subject of habeas corpus, see sec- 
 tions 751, et seq.. Revised Statutes. 
 
 "A bill of attainder is a legislative act 
 which intlicts punishment without a judicial 
 trial. If the punishment be less than death, 
 the act is termed a bill of pains and penalties. 
 Within the meaning of the (Constitution, bills of 
 attainder include bills of pains and penalties. 
 In these cases the legislative body, in addition 
 to its legitimate functions, exercises the powers 
 and office of judge; it assumes, in the language 
 of the textbooks, judicial magistracy; it pro- 
 nounces upon the guilt of the party without any 
 of the forms or safeguards of trial; it determines 
 the sufficiency of the proofs produced, whether 
 conformable to the rules of e\T.dence or other- 
 wise; and it fixes the degree of punishment in 
 accordance with its own notions of the enormity 
 oftheoffense." (Cummingsii. Missouri, 4 Wall., 
 277; see also In re Yung Sing Hee, 36 Fed. 
 Rep., 437; In re De Giacomo, 7 Fed. Cas. No. 
 
 3747; Anderson v. Baker, 23 Md., 623; Drehman 
 V. Stifle, 8 Wall., 601; Fletcher v. Peck, 6 
 Cranch, 138.) 
 
 The injustice and tyranny wliich characterize 
 ex post facto laws consist altogether in their re- 
 trospective operation, which applies with equal 
 force, although not exclusively, to bills of at- 
 tainder. (Ogden i). Saunders, 12 Wheat., 266.) 
 
 A provision that persons convicted of certain 
 crimes shall not be permitted to vote or hold 
 office is not in the nature of a bill of attainder, as 
 it requires conviction before the penalties are 
 made to attach. (Washington v. State, 75 Ala., 
 585.) 
 
 A federal statute, providing that deserters 
 from the military and naval ser\dce shall forfeit 
 their rights of citizenship and the right to be- 
 come citizens, is not void as a bill of attainder, 
 because it contemplates trial by a coiu-t-martial 
 
 73 
 
Art. I, Sec. 9. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Ex Post Facto Laws. 
 
 to enforce tliis penalty as well aa the other peiial- 
 tiea for desertion. (Got<"heu8 v. Matlieson, 58 
 Barb. (N. Y.), 153, Gl N. Y.,425; see also State 
 V. Synioiuls, 57 Maine, 148; Uolt v. Jlolt, 59 
 Maine, 4(i4; Severance v. liealv, 50 N. H.,44S; 
 Hiiber v. lleily, 53 Pa. St., 112; McCafferty v. 
 Guver, 59 Pa. St., 110; Kurtz v. Moffitt, 115 
 U. S., 501; and see sees. l!)!l(3 and 1998, R. S.) 
 
 Tl\e following are examples of statutes held 
 void aa bills of attainder: A federal statute pre- 
 scribing;: an oath that deponent had never volun- 
 tarily borne arms ajjainst the United States or 
 ^iven aid to its enemies, etc., as a (lualilication 
 lor admission as an attorney before the United 
 States courts (Ex jtarte Garland, 4 Wall., 333); 
 a similar reciuirement as a condition precedent 
 to holding ofiice or practicing law or mini.stry in 
 a State (Cumniings v. MLssouri, 4 Wall., 277; see 
 also In re Shorter, 22 Fed. Cas. No. 12811); a 
 statute making the nonpayment of taxes during 
 the (,'ivil War evidence of disloyalty, and pro- 
 viding for the forfeiture of lands without a judi- 
 cial liearing (Martin v. Snowden, ISGratt., 100); 
 providing castration upon couA-iction of second 
 offense ( Davis r. Berry, 21(5 Fed. Rep., 413, 419); 
 a statute excluding from the United States Chi- 
 nese citizens (In re Yung Sing Hee, 36 Fed. 
 Rep., 437; compai-e In re Chae Chan Ping, 36 
 Fed. Rep., 431). [A pro\'ision that no person 
 shall be civilly prosecuted for any act done by 
 virtue of militarv authority was held not to.be a 
 bill of attiiinder. (Drehman v. Stifle, 8 Wall., 
 590; see also Clark v. Dick, 5 Fed. Cas. No. 
 2818.)] 
 
 Ex post facto laws. — A statute belongs to 
 tills class '"which by its necessary operation 
 and 'in its relation to the offense, or its conse- 
 quences, alters the situation of the accused to 
 his disadvantage.' * * * Of course a stat- 
 ute is not of that class unless it materially im- 
 pairs the right of the accused to have the ques- 
 tion of his guilt determined according to the law 
 as it was when the offense was committed . And 
 therefore it is well settled that the accused is 
 not of right entitled to be tried in the exact 
 mode, in all respects, that may be prescribed 
 for the trial of criminal cases at the time of the 
 commission of the offense charged against Mm. ' ' 
 (Thompson v. Utah, 170 U. S., 343; see also 
 Duncan v. Missouri, 152 U. S., 382; Medley, Pe- 
 titioner, 134 U. S., 171.) 
 
 "The legislature may abolish courts and cre- 
 ate new ones, and it may prescribe altogether 
 different modes of procedure in its discretion, 
 though it can not lawfully, we think, in so doing 
 dispense with any of those substantial protec- 
 tions with which the existing law surrounds the 
 person accused of crime." (Cooley on Const. 
 Lira., quoted with approval in Thompson v. 
 Utah, 170 U. S., 343; see also Kriug v. Missouri, 
 107 U. S., 221.) 
 
 No one has a vested right in mere modes of 
 procedure. Statutes regulating procedure, if 
 they leave untouched all the substantial pro- 
 tections witli wliich existing law surrounds the 
 person accused of crime, are not within tlie con- 
 stitutional inhibition of ex post facto laws. 
 But a statute which takes from the accused a 
 substantial right given to him by the law in 
 force at the time to which liis guilt relates would 
 be ex post facto in its natiu-e and operation, and 
 
 legislation of that kind can not be sustained 
 simply because, in a general sense, it may be 
 sai(l to regulate procedure. (Thonipsoini. Utah, 
 170 U. S., 343; see also Gibson v. Mississippi. 162 
 U. S., 590; State v. Fourchy, 106 La., 749.) 
 
 "The difficulty is not so much as to the sound- 
 ness of tlie general rule that an accused has no 
 vested right in particular models of ])rocediire, as 
 in determining whetlier particular statutes by 
 their operation take from an accused any right 
 that was regarded at the time of the adoption of 
 tlie Constitution as vital for the protection of 
 life and liberty and which he enjoyed at the 
 time of the offen.se charged against him." 
 (Thompson v. Utah, 170 U. S., 343.) 
 
 Ex post facto laws include: "First, every law 
 that makes an action done before the passing 
 of the law, and which was innocent when done, 
 criminal, and punishes such action. Second, 
 every law that aggravates a crime or makes it 
 greater than it was when committed. Third, 
 every law that changes the punishment and 
 inflicts a greater punishment than the law 
 annexed to the crime when committed. 
 Fourth, every law that alters the legal rules 
 of evidence and receives less or different testi- 
 mony than the law required at the time of the 
 commission of the offense in order to convict 
 the offender." (Per Chase, J., Calder v. Bull, 
 3 Dall., 386.) 
 
 The above classification by Justice Chase, al- 
 though obiter dictum, "has often been repeated 
 by judges and text-writers in discussing the 
 subject. Still it may not be presumptuous to 
 say that doubts may be entertained whether 
 his foiirth class does not include cases outside 
 of the prohibition; whether every law that 
 alters the legal rules of evidence and receives 
 different testimony than the law required at 
 the time of the commission of the offense in 
 order to convict the offender, is an ex post 
 facto law." ^ (Moore y. State, 43 N. J. L., 216.) 
 
 A statute is not void as ex post facto because 
 it removes disability of witness, thereby en- 
 larging the classes of persons who are competent 
 to testify in criminal cases. (Hopt v. Utah, 
 110 U. S., 589.) 
 
 A statute authorizing the comparison of dis- 
 puted handwTiting with any wa-iting proved to 
 be genuine is not ex post facto, although ap- 
 plicable to crimes committed prior to its enact- 
 ment and altering the legal rules of evidence 
 in existence at the time of the commission of 
 the offense. (Thompson v. Missouri, 171 U. S., 
 380. This decision related to a State law. A 
 similar statute was passed by Congress, Feb. 
 26, 1913, 37 Stat., 683.) 
 
 "We are not to be understood as holding that 
 there may not be such a statutory alteration of 
 the fundamental rules in criminal trials as 
 might bring the statute in conflict vnth. the 
 ex post facto clause of the Constitution. If, 
 for instance, the statute had taken from the 
 jury the right to determine the sufficiency or 
 effect of the evidence which it made admis- 
 sible, a different question would have been 
 presented. We mean now only to adjudge that 
 the statute is to be regarded as one merely regu- 
 lating procedure and may be applied to crimes 
 committed prior to its passage without impair- 
 ing the siibstantial guaranties of life and liberty 
 
 74 
 
Foreign Presents. 
 
 PL 1. THE CONSTITUTION. 
 
 Art, I, Sec. 9. 
 
 58 Barb. (N. Y.), 153, reversed on other grounds, 
 61 N. Y., 425; see also Kurtz v. Moffitt, 115 
 U. S., 501; Muqihy v. Ramsey, 114 U. S., 42; 
 and see sees. 1996 and 1998, R. S.) 
 
 A law which is not penal and does not inter- 
 fere with the vested rights of individuals is 
 within the constitutional power of Congress and 
 is not objectionable as a retrospective law. 
 (McNamara v. U. S., 28 Ct. Cls., 416.) Retro- 
 spective laws which do not impair the obliga- 
 tion of contracts or partake of the character of 
 ex post facto laws are not condemned or for- 
 bidden bv any part of the Constitution. (Sat- 
 terlee r. Matthewson. 2 Pet., 410.) 
 
 The constitutional prohibition applies to 
 penal and criminal proceedings and not to 
 ci^il proceedings which affect private rights 
 retrospectively. (Watson v. Mercer, 8 Pet., ilO; 
 In re Sawyer, 124 U. S., 219; Locke ■!). New 
 Orleans, 4 Wall., 173: Calder v. Bull, 3 Dall., 
 393; DePass v. Bidwell, 124 Fed. Rep., 623.) 
 Proceedings for recovery of penalties and for- 
 feitures are included, as well as criminal laws 
 and cases. (U. S. v. Hughes, 26 Fed. Cas. 
 No. 15416.) 
 
 that are secured to an accused by the supreme 
 law of the land." (Thompson v. Missouri, 171 
 U. S., 380.) 
 
 A statute providing that "in all questions 
 affecting the credibility of a witness his general 
 moral character may be given in evidence," is 
 not ex post facto as applied to trials for offenses 
 committed before its passage. (Robinson v. 
 State, 84 Ind., 453.) 
 
 A constitutional provision that a person con- 
 victed of certain offenses should not be per- 
 mitted to hold office is not ex post facto, because 
 it does not take away a legal right nor impose 
 any legal burden, one of which is necessaiy to 
 the infliction of a penalty; but merely with- 
 holds a constitutional provision which is grant- 
 able or revocable by the sovereign power of the 
 State at pleasure. (Washington v. State, 75 
 Ala., 585; biU see Cummings v. Missouri, 4 
 Wall., 277; Ex parte Garland, 4 AValL, 333.) 
 
 Desertion from the military or naval ser\dce 
 is a continuing offense, and therefore statutes 
 increasing the penalties upon con\dction are 
 not ex post facto as applied to one in desertion 
 at the time such statutes were enacted. (Huber 
 V. Reily, 53 Pa. St., 115; Gotcheus v. Matheson, 
 
 [Clause 4. Capitation and direct taxes.] * Xo capitation, or other direct, 
 Tax shall be laid, unless in Proportion to the Census or Enumeration herein 
 before directed to be taken. 
 See Amendments, Art. XVI. 
 
 [Clause 5. Export duties.] ^ Xo Tax or Duty shall be laid on Articles 
 exported from any State. 
 
 [Clause 6. Freedom of commerce.] *• No Preference shall be given by any 
 Regulation of Commerce or Revenue to the Ports of one State over those of 
 another: nor shall Vessels bound to, or from, one State, be obliged to enter, 
 clear, or pay Duties in another, 
 
 [Clause 7. Appropriations and accounting of public money.] "^ Xo IMoney 
 shall be drawn from the Treasury, but in Consequence of Appropriations made 
 by Law ; and a regular Statement and Account of the Receipts and Expenditures 
 of all public Money shall be published from time to time. 
 
 [Clause 8. Titles of nobility and gifts from foreign States.] ^Xo Title of 
 Nobihty shall be granted by the United States: And no Person holdmg any 
 Office of Profit or Trust under them, shall, without the Consent of the Con- 
 gress, accept of any present. Emolument, Office, or Title, of any kind what- 
 ever, from any King, Prince, or foreign State. 
 
 tion of this clause of the Constitution. (File 
 
 Acceptance of presents from foreign 
 states, etc. — The provision of this clause 
 applies as well to a titular prince as to a reign- 
 ing one; and a simple remembrance of courtesy, 
 even if merely a photograph, falls under the 
 inclusion of "any present of any kind what- 
 ever. "_ (24 Op. Atty. Gen., 116.) 
 
 "This prohibition expressly relates to official 
 persons, and does not extend, under the cir- 
 ciunstances outUned, to a department of the 
 Government or to governmental institutions." 
 (24 Op. Atty. Gen., 116.) 
 
 If the present is not to be given by any king, 
 prince or foreign state, but by the citizens of 
 Ponta Delgada, Azores, its acceptance by the 
 commanding officer of a naval vessel without 
 the consent of Congress, would not be a viola- 
 
 54641°— 22 6 T6 
 
 9644-43, Apr. 6, 1918.) 
 
 ' ' A minister plenipotentiary from the United 
 States to a foreign power can not, without the 
 consent of Congress, accept a similar commis- 
 sion from a tliird power; though he is not pro- 
 hibited from rendering a friendly 8er\dce to a 
 foreign Government, even that of negotiating 
 a treaty, provided he does not become an 
 officer thereof." (13 Op. Atty. Gen., 537.) 
 
 "The marshal of the United States for the 
 southern district of Florida can not at the same 
 time hold the office of commercial agent of 
 France." (6 Op. Atty. Gen., 409 ) 
 
 "The * * * clause as to the acceptance 
 of any emoluments, title, or office from foreign 
 governments is founded in a just jealousy of 
 
Art. I, Sec. 10. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Limitations on States. 
 
 foreiga iulluencc of any sort. WTiether, in a 
 
 Eractical soiuse, it can produce much effect, 
 as been thought doubtful. A patriot will not 
 be likely to be seduced from hiy duties to his 
 country by the accei)ting of any title or present 
 from a foreign government. An intriguing or 
 corrupt a^ent will not be restrainetl from guilty 
 machinations in the 8er\ace of a foreign state 
 by such constitutional restrictions * * *." 
 (Hie 3707, June 15. 1904, quoting Story on the 
 Constitution, vol. 2, pp. 223, 224.) 
 
 "The reasons for the prohil^ition in question 
 apply as well to enlisted men in the military 
 service as to officers, the difference between 
 the cases of officers and men in this respect 
 being one of degree only; and there may be 
 dou])t as to whether such prohibition was not 
 intended to apply to all ])ersons in the service 
 of the Government, and not to those only who 
 are appointed to office in one of the modes men- 
 tioned in Article II, section 2, clause 2." 
 (File 3707, June 15, 1904, citing 16 Op. Atty. 
 Gen., 113, holding an enlisted man of the Army 
 to be an "officer" within the meaning of section 
 750, Revised Statutes, allowing expenses in- 
 curred bv witnesses for the Government; see also 
 27 Op. Atty. Gen., 468, 472; compare 28 Op. 
 Atty. Gen., 320.) 
 
 "The (question whether the provision of the 
 Constitution above quoted includes within its 
 terms any person occupying a position of trust or 
 profit under the United States, such as an enlisted 
 man in the Navy, is not free from doubt. Tliere 
 are decisions which have given the word 'officer' 
 a very broad construction in other connections 
 * * *." (File 9&44-27, Jan. 24, 1913; see also 
 file 7515-158, Sept. 27, 1917; file 1098-98, Aug. 
 9, 1918; but see 28 Op. Atty. Gen., 320.) 
 
 It is proAdded by law that "hereafter any 
 present, decoration, or other thing, which shall 
 be conferred or presented by any foreign gov- 
 ernment to any officer of the United States, 
 civil, naval, or military, shall be tendered 
 through the Department of State, and not to the 
 individual in person, but such present, decora- 
 tion, or other thing shall not be delivered by 
 the Department of State unless so authorized by 
 act of Congress." (Act June 31 1881, sec. 3, 
 21 Stat., 604.) "The within-named medals 
 were tendered through the Department of 
 State, and that department, which, under the 
 act just cited, is charged with determining in 
 what cases congressional authority for the 
 delivery of things presented by foreign govern- 
 ments is necessary, holds that such authority 
 
 Section 10. [Clause 1. States not to make treaties, coin money, pass 
 ex post facto laws, impair contracts, etc.] ^ No State shall enter into any Treaty, 
 Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; 
 emit BUls of Credit; make any Thing but gold and sUver Coin a Tender in 
 Payment of Debts; pass any Bill of Attainder, ox post facto Law, or Law im- 
 pairing the Obhgation of Contracts, or grant any Title of Nobility. 
 
 is not required in this instance, on the ground 
 that enlisted men of the Navy and Marine Corps 
 are not officers of the United States within the 
 constittitional i)r()lubition and the act of 1881 
 above quoted. The forwarding of the medals 
 to this department for distribution constitutes 
 a delivery thereof so far as the Department of 
 State is concerned." (File 3707, June 15, 
 1904, holding that the medals may properly be 
 delivered by the Navy Department to the 
 enlisted men for w^hom they were intended. 
 See also, file 9644-27, Jan. 24, 1913.) 
 
 "No decoration or other tiling, the accept- 
 ance of which is authorized by tlus act, and no 
 decoration heretofore accepted, or which may 
 hereafter be accepted, by consent of Congress, 
 by any officer of the United States, from any 
 foreign government, shall be publicly shown or 
 exposed upon the person of the officer so re- 
 ceiving the same." (Act Jan. 31, 1881, sec. 2, 
 21 Stat., 604.) 
 
 "The public wearing of medals presented by 
 foreign governments is not authorized by the 
 Navy Regulations." (File 3707, ,Iune 15, 1904.) 
 
 Members of the "military forces" of the 
 United States serving in the war with Geimany 
 were permitted and authorized to accept until 
 one year after the war, decorations from certain 
 foreign governments, and "to accept and wear 
 any medal or decoration heretofore bestowed " 
 by any of said governments, by the Army 
 appropriation act approved July 9, 1918 (40 
 Stat., 872). This statute appUee to the Navy 
 and Marine Corps. (31 Op. Atty. Gen., 445; 
 see also id., 452.) 
 
 A clerk of class 4 in the Post Office Depart- 
 ment is inhibited by this clause of the Constitu- 
 tion from accepting an insignia conferred by the 
 Gennan Emperor, unless the consent of Con- 
 gress be firat obtained. Section 3 of the act of 
 January 31, 1881 (21 Stat., 604), does not 
 authorize the delivery of decorations unless 
 authority therefor be first obtained by act of 
 Congress. (27 Op. Atty. Gen., 219.) 
 
 Acceptance by officers and enlisted men of 
 employment and compensation from the gov- 
 ernment of Brazil, the government of Haiti, 
 and the government of the Dominican Re- 
 public, respectively, was authorized October 
 13, 1914 (38 Stat., 780), June 12, 1916 (39 
 Stat., 223), and February 11, 1918 (40 
 Stat., 437). See also act of June 5, 1920 (41 
 Stat. 1056), applicable to all South American 
 Republics. 
 
 Obligation of contracts. — "The United 
 States can not, any more than a State, interfere 
 with private rights except for legitimate gov- 
 ernmental purposes. They are not included 
 within the Constitutional prohibition which 
 prevents States from passing laws impaii-ing the 
 obligation of contracts, but equally with the 
 
 States they are jjrohibited from depriving per- 
 sons or corporations of property without due 
 process of law." (Sinking P'und Cases, 99 U. S., 
 700.) 
 
 "It is unnecessary to discuss the question 
 whether Congress has unrestricted power to do 
 what the States can not do in the impairing of 
 
 76 
 
Executive Power. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. II, Sec. 1. 
 
 contract obligations. It is probable it would be 
 held that in some instances and for some pur- 
 poses it can. Such an instance niight be the 
 enactment of a bankrupt law, which necessarily 
 implies the impairment and even the entire dis- 
 charge of contract obligations. It is not im- 
 probable, however, that an act of Congress which 
 should provide for the repudiation of any sub- 
 stantial part of a valid contract would be ob- 
 noxious to those other provisions of the Federal 
 Constitution which are intended to protect the 
 citizen and his propertv against arbitrary seiz- 
 ure and confiscation." '(22 Op. Atty. Gen., 194.) 
 "Congi'ess has express power to enact bank- 
 rupt laws, and we do not say that a law made in 
 the execution of any other express power, which 
 incidentally only impairs the obligation of a 
 contract, can be held to be unconstitutional for 
 that reason. But we think it clear that those 
 who framed and those who adopted the Consti- 
 
 tution intended that the spirit of this prohibi- 
 tion should pervade the entire body of legisla- 
 tion * * *. In other words, we can not 
 doubt that a law not made in pursuance of an 
 express power, which necessarily and in its dii-ect 
 operation impairs the obligation of contracts, 
 is inconsistent with the spirit of the Consti- 
 tution." (Hepburn v. Griswold, 8 Wall., 623.) 
 "Nor can it be truly asserted that Congress 
 may not, by its action, indirectly impair the 
 obligation of contracts, if by the expression be 
 meant rendering contracts fruitless or partially 
 fruitless. Directly it may, confessedly by pass- 
 ing a bankrupt act, embracing past as well as 
 future transactions * * *. So it may relieve 
 parties from their apparent obligations indi- 
 rectly, in a multitude of ways. It may de- 
 clare war, or even in peace pass noninter course 
 acts, or direct an embargo." (Kjiox v. Lee, 12 
 Wall., 457.) 
 
 [Clause 2. States not to lay imposts or duties, except, etc.] ^No State 
 shall, without the Consent of the Congress, lay any Imposts or Duties on Im- 
 ports or Exports, except what may be absolutely necessary for executing it's 
 inspection Laws: and the net Produce of all Duties and Imposts, laid by any 
 State on Imports or Exports, shall be for the Use of the Treasury of the United 
 States; and aU such Laws shall be subject to the Revision and Control of the 
 Congress. 
 
 [Clause 3. States not to lay tonnage duty, make compacts, engage in 
 war, etc.] ^No State shall, without the Consent of Congress, lay any duty of 
 Tonnage, keep Troops, or Ships of War m time of Peace, enter into any Agree- 
 ment or Compact with another State, or with a foreign Power, or engage in 
 War, unless actually invaded, or in such imminent Danger as will not admit 
 of delay. 
 
 ARTICLE 11. 
 
 Section 1. [Clause 1. Executive power vested in President; terms of 
 President and Vice-President.] ^ The executive Power shall be vested in a 
 President of the United States of America. He shall hold his OflB.ce during 
 the Term of four Years, and, together with the Vice-President, chosen for the 
 same Term, be elected, as follows: 
 
 Covirts without power over President. — 
 
 "The executive power is vested in a President, 
 and as far as his powers are derived from the 
 Constitution he is beyond the reach of any 
 other department, except in the mode pre- 
 scribed by the Constitution, through the im- 
 peaching power." (Kendall v. U. S., 12 Pet., 
 524.) 
 
 The courts are not empowered to enjoin the 
 President from executing an act of Congress, 
 even though such act had been vetoed by the 
 President as unconstitutional and had become 
 a law without his approval. ' 'A bill prajdng 
 an injunction against the execution of an act 
 of Congress by the incumbent of the presiden- 
 tial office can not be received, v/hether it 
 described him as President or as a citizen of a 
 State. The motion for leave to file the bill is 
 therefore denied." (Mississippi v. Johnson, 4 
 Wall., 475.) 
 
 "A subpoena may issue to the President of 
 the United States to compel his attendance as 
 a witness, and an accused person is entitled to 
 it of course. " (U. S. v. Burr, 25 Fed. Gas. No. 
 14692c?.) 
 
 "A subpoena duces tecum may issue to the 
 President of the United States, directing him 
 to bring any paper of which the party praying 
 it has a right to avail himself as testimony." 
 (U. S. V. Burr, 25 Fed. Cas. No. 14692d) 
 
 "WTiile a subpoena may be directed against 
 the President to produce a paper, or for some 
 other purpose, in case of his refusal to obey the 
 subpoena, the courts would be without power 
 to enforce process. " (25 Op. Atty. Gen., 326.) 
 
 Subordinate executive oflScers. — "The 
 President's duty in general requires his super- 
 intendence of the administration; yet this duty 
 can not require of him to become the adminis- 
 trative officer of every department and bureau, 
 
 77 
 
Art. II, Sec. 1. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Executive Power. 
 
 or to perform in penson the numerous details 
 inddeut to services ^vhioll, nevertheless, he is, 
 in a correct sense, by the (Vinstitution and laws 
 required antl expected to perform This can 
 not be, because if it w ere practicable it ■would 
 be to absoib the duties and responsibilities of 
 the various departments of the Govermnent in 
 the ]>ersonal action of the one chief executive 
 oflicer. It can not be, for the strongest reason, 
 that it is impracticable — nay, impossible." 
 rWilliams v. U. S., 1 How., 290; 10 Op. Atty. 
 Gen., 527.) 
 
 The heads of the executive departments, 
 familiarly known as Cabinet officers, aid the 
 President "in the i>erformauce of the great 
 duties of his othce and represent him in a 
 thousand acts to ■which it can hardly be sup- 
 
 Kosed his personal attention is called. " (In re 
 e;\gle, 135 U. 8., 1.) 
 
 The Constitution does not specify the subor- 
 dinate administrative functionaries by whose 
 agency or counsels the details of public business 
 are to be transacted. It recognizes the exist- 
 ence of such official agents and advisers in 
 .oajdng that the President "may require the 
 opinion, in ■wTiting, of the principal officer of 
 each of the executive departments upon any 
 subject relating to the duties of their respective 
 offices" (Art. II, sec. 2, clause 1); and these 
 officers are again recognized by the Constitu- 
 tion in tlie clause wliich vests the appointment 
 of certain inferior officers "in the heads of 
 departments" (Art. II, sec. 2, clause 2), and 
 it leaves the number and organization of those 
 departments to be determined by Congress. 
 (6 Op. Atty. Gen., 326; see also note to sec. 158, 
 
 '•The President acts andspeaks through 
 the heads of the departments, and the acts 
 of the head of an executive department must 
 be piesumed to be by the direction of the Presi- 
 dent. If the surrounding circumstances show 
 that the act was that of the Secietary alone, 
 the presumption mav be othenvise." (Weller 
 r. if. S., 41 Ct. Cls.;;324.) So also, where the 
 act to be done is judicial in character, such as 
 the approval of the sentence of a court-martial, 
 the personal judgment of the President is re- 
 quired, and can not be delegated to the head 
 of a department. (Runkle v. U. S., 122 U. S., 
 543, explained, U. S. v. Fletcher, 148 U. S.,86; 
 Ide V. U. S., 25 Ct. Cls., 407, 150 U. S., 517; 
 see also note to sec. 158, B. S.) 
 
 The order of the Secretary of War is the order 
 of the President, -within the terms of a statute 
 providing that certain officers of the Army 
 should not perform any duties bejond the line 
 of their immediate profession "except by the 
 special order of the President." (9 Op. Atty. 
 Gen., 465.) 
 
 "By the Constitution of the United States the 
 President is invested with certain important 
 political powers, in the exercise of which he is 
 to use his own discretion, and is accountable 
 only to his country in his political character, 
 and to his own conscience. To aid him in the 
 performance of these duties he is authorized 
 to appoint certain officers who act by his au- 
 thority and in conformity with his orders. In 
 eucl) cases their acts are his acts; and whatever 
 opinion may be entertained of the manner in 
 ■which executive discretion may be used, still 
 
 there exists and can exist no power to control 
 that discretion. The subjects are political. 
 They re.<*pect the Nation, not individual rights, 
 and, being intrusted to the executive, the de- 
 cision of the executive is conclusive. The 
 application of this remark will be perceived by 
 adverting to tlie act of Congiess for establishing 
 the Department of Foreign Affairs [now De- 
 partment of State]. This officerj as his duties 
 were prescribed by that act, is to conform 
 precisely to the will of the President. He is 
 the mere organ by whom that will is to be com- 
 municated. The acts of such an officer, as an 
 officer, can never be examined by the courts." 
 (Marbury v. Madison, 1 Cranch, 137.) 
 
 "It is the general theory of departmental 
 administration that the heads of the executive 
 departments are the executors of the will of 
 the President." (10 Op. Atty. Gen., 527.) 
 
 "There are certain political duties imposed 
 upon many officers in the executive depart- 
 ment, the discharge of wliich is uuder the direc- 
 tion of the President. But it would be an 
 alarming doctrine that Congress can not impose 
 upon any executive officer any duty they may 
 think proper, which is not repugnant to any 
 rights secured and protected by the Constitu- 
 tion; and in such cases the duty and responsi- 
 bility grow out of and are subject to the control 
 of law and not the dii-ection of the President. 
 And tliis is emphatically the case where the 
 duty enjoined is of a mere ministerial cliar- 
 acter." (Kendall v. U. S., 12 Pet., 524.) 
 
 Legal responsibility of execu'tive offi- 
 cers. — "If one of the heads of departments 
 commits any illegal act, uuder color of office, by 
 which an individual sustains an injury, it can 
 not be pretended that his office alone exempts 
 him from being sued in the ordinary mode of 
 proceeding and being compelled to obey the 
 judgment of the law." (Marbury v. Madison, 
 1 Cranch, 137.) 
 
 "The same general considerations of public 
 policy and convenience which demand for 
 judges of courts of superior jurisdiction immu- 
 nity from ci^•il suits for damages arising from 
 acts done by them in the course of the perform- 
 ance of their j udicial functions apply to a large 
 extent to official communications made by 
 heads of executive departments Avhen engaged 
 in the discharge of duties imposed upon them 
 by law. The interests of the people require 
 that due protection be accorded to them in 
 respect of their official acts. As in the case of a 
 judicial officer, we recognize a distinction be- 
 tween action taken by the head of a department 
 in reference to matters which are manifestly or 
 palpably beyond his authority and action hav- 
 ing more or less connection -with the general 
 matters committed by law to his control or super- 
 vision. * * * Personal motives can not be 
 imputed to duly authorized official conduct. In 
 exercising the functions of his office the head of 
 an executive department keeping within the 
 limits of his authority should not be under an ap- 
 prehension that the motiA'es that control his offi- 
 cial conduct may at any time become the sub- 
 ject of inquiry in a civil suit for damages." 
 (Spalding v. Vilas, 161 U. S., 483.) 
 
 "A public officer is not liable to an action if 
 he falls into error in a case where the act to be 
 done is not merely a ministerial one but is one 
 
 78 
 
Election of President. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. II, Sec. 1. 
 
 in relation to which it is his duty to exercise 
 judgment and discretion, even although an indi- 
 vidual may suffer by liis mistake. A contrary 
 principle would, indeed, be pregnant witli the 
 greatest mischiefs." (Kendall v. Stokes, 3 
 How., 87. See also note to Art. I., sec. 8, 
 clause 13, "Civil responsibility of persons in 
 military service.") 
 
 Liability of Govemment for acts of 
 executive oflicers. — "No govemment has 
 ever held itself liable to iiidi\iduals for the mis- 
 feasance, laches, or unauthorized exercise of 
 power by its officers and agents. It does not 
 undertake to guarantee to any person the fidel- 
 ity of the officers whom it employs, since that 
 would involve it in all its operations in endless 
 embarrassments and difficulties and losses 
 which would be subversive of the public inter- 
 ests." (Gibbons v. U. S.,- 8 Wall., 269. See 
 note to sec. 236, R. S.; see also note to Art. I, 
 sec. 8, clause 13, " Congress may protect officers 
 against civil or criminal responsibility.") 
 
 Mandamus against heads of depart- 
 ments. — ' ' 1 1 is not by the office of the person to 
 whom the writ is directed, but the nature of the 
 thing to be done, that the propriety or impropri- 
 ety of issuing a mandamus is to be determined. 
 Where the head of a department acts in a case in 
 which executive discretion is to be exercised, 
 in which he is the mere organ of the executive 
 will, it is again repeated that any application to 
 a court to control in any respect his conduct 
 would be rejected without hesitation. But 
 where he is directed by law to do a certain act 
 affecting the absolute rights of individuals, in 
 the performance of which h( is not placed under 
 the particular direction of the President and the 
 perfonnance of which the President can not law- 
 fully forbid, and therefore is never presumed to 
 have forbidden, as, for example, to record a com- 
 mission or a patent for land which has received 
 all the legal solemnities, or to give a copy of 
 some record ; in such cases it is not perceived on 
 what grounds the courts of the country are fur- 
 ther excused from giving judgment that right be 
 done to an injured individual than if the same 
 services were to be performed by a person not 
 the head of a department. ' ' (Marbury v. Madi- 
 son, 1 Crench, 137. See also Gaines v. Thomp- 
 son, 7 Wall., 347; Kendall v. U. S., 12 Pet., 524; 
 U. S. V. Schurz, 102 U. S., 378; Georgia -y. Stan- 
 ton, 6 Wall., 50; Riverside Oil Co. v. Hitchcock, 
 190 U. S., 316; Bates, etc., Co. v. Payne, 194 
 U. S., 106; Marquez v. Frisbie, 101 U. S., 473; 
 U. S. V. Black, 128 U. S., 40; U. S. v. Windom, 
 137 U. S.,636; Boyntoni;. Blaine, 139U. S., 306; 
 Dudley v. James, 83 Fed. Rep., 349; Taylor v. 
 Kercheval, 82 Fed. Rep., 497; Brown v. Root, 
 18 App. D. C, 239. And see note to sec. 236, 
 R. S., "Mandamus to compel pajTnents" and 
 note to sec. 417, R. S.) 
 
 A State court has no power to issue a writ of 
 mandamus to a Federal officer. (See McClung 
 V. Silliman, 6 Wheat., 598; Kendall v. U. S., 12 
 Pet., 524; U. S. v. Schurz, 102 U. S., 378.) 
 
 Where a subordinate officer refuses to obey 
 the order of the head of a department, any per- 
 son aggrieved thereby may obtain a mandamus 
 to enforce obedience by such subordinate. 
 (U. S. V. Black, 128 U. S., 50; see also Knight y. 
 U. S. Land Assn., 142 U. S., 161.) 
 
 Subpoena to head of department. — • 
 In the absence of specilic authority on the sub- 
 ject, I am inclined to think that you are not 
 legally bound to appear and testify in obedience 
 to a subpoena of a court. This question, how- 
 ever, does not actually arise upon the facts 
 which you submit, and is therefore at present 
 hjTJothetical. Yet it is to be remembered that 
 Attorney General Lincoln saw fit to respond to a 
 subpoena to testify as a witness by appearance 
 in court for that purpose. I would suggest that 
 in this instance, inaFmuch as it is purposed to 
 take the testimony by commission, and you are 
 thus not reqtiired to appear in court, but before 
 a referee or commissioner, an arrangement might 
 readily be made which would better comport 
 with the dignity of your office, as the head of an 
 executive department of the Government, 
 whereby such testimony as you should deem 
 proper and advisable to give could be taken at 
 the Department of Commerce and Labor. ' ' (25 
 Op. Atty. Gen., 326. In this connection, see 
 file 26276-173, May 12, 1917, and see note to 
 sec. 871, R. S.) 
 
 Appeals to President and heads of de- 
 partments. — It is competent for Congress to 
 give linality to the determination of subordinate 
 administrative officers, provided due process of 
 law, that is, notice and a hearing, is provided. 
 (Orchard v. Alexander, 157 U. S., 372.) Where 
 Congress does not do this, the head of a depart- 
 ment may change the erroneous decision of a 
 subordinate (U. S. v. Cobb, 11 Fed. Rep., 76); 
 and appeals may be taken to the head of the 
 department because of his supervisory powers 
 over the whole business of the department. 
 (Knight t'. L . S. Land Assn., 142 U. S., 161.) In 
 such cases the appeal should be to the head of 
 the department and not to the President. (10 
 Op. Atty. Gen., 526.) 
 
 As a general rule, no appeal lies to the Presi- 
 dent from the head of a department, whose acts 
 are presumed to be the acts of the President 
 himself. (9 Op. Atty. Gen., 462.) However, 
 in the naval service appeals may be taken to the 
 President from the orders or decisions of the 
 Secretary of the Navy. (Art. 5323, Naval In- 
 etnictions, 1913.) 
 
 *' You have often declared that no appeal from 
 the head of any department lies to you. Such 
 appeals ai*e irregular, for reasons which have 
 often been given by this office and which need 
 not now be repeated. An official act done by 
 the Secretary of War is your act, and a demand 
 made upon you to reverse it is no more than a 
 remonstrance addressed to yourself against 
 yourself. ' ' (Attorney General to the President, 
 9 Op. Atty. Gen., 463.) 
 
 [Clause 2. Electors of President and Vice-President.] - Each State shall 
 appoint, in such Manner as the Legislature thereof may direct, a Number of 
 Electors, equal to the whole Number of Senators and Representatives to 
 which the State may be entitled in the Congress: but no Senator or Represent- 
 
 79 
 
Art. II, Sec. 1. Pt. 1. THE CONSTITUTION. Compensation of President. 
 
 ative, or Person holding an Office of Trust or Profit under the United States, 
 shall bo appointed an Elector. 
 
 The Electors shall meet in their respective States, and vote by Ballot for 
 two persons, of whom one at least shall not be an Inhabitant of the same 
 State with themselves. And they shall make a List of aU the Persons voted 
 for, and of the Number of Votes for each; which List they shall sign and 
 certify, and transmit sealed to the Seat of the Government of the United 
 States, directed to the President of the Senate. The President of the Senate 
 shall, in the Presence of the Senate and House of Representatives, open all 
 the Certificates, and the Votes shall then be comited. The Person having the 
 greatest Number of Votes shall be the President, if such Number be a Majority 
 of the whole Number of Electors appointed; and if there be more than one 
 who have such Majority, and have an equal Number of Votes, then the House 
 of Representatives shall immediately chuse by BaUot one of them for Presi- 
 dent; and if no Person have a Majority, then from the five highest on the List 
 the said House shaU in fike Manner chuse the President. But in chusing the 
 President, the Votes shall be taken by States, the Representation from each 
 State havmg one Vote; A quorum for this Purpose shall consist of a Member or 
 Members from two-thirds of the States, and a Majority of aU the States shall 
 be necessary to a Choice. In every Case, after the Choice of the President, 
 the Person having the greatest Number of Votes of the Electors shall be the 
 Vice President. But if there should remam two or more who have equal 
 Votes, the Senate shall chuse from them by BaUot the Vice-President. 
 
 This clause has been superseded by the twelfth amendment. 
 
 [Clause 3. Time of choosing electors, and voting by.] ^ The Congress may 
 determine the Time of chusing the Electors, and the Day on which they shall 
 give their Votes; which Day shall be the same throughout the United States. 
 
 [Clause 4. Qualifications of President.] * No person except a natural born 
 Citizen, or a Citizen of the United States, at the time of the Adoption of this 
 Constitution, shall be eligible to the Office of President; neither shall any 
 Person be eligible to that Office who shall not have attained to the Age of 
 thirty-five Years, and been fourteen Years a Resident within the United States. 
 
 [Clause 5. Succession to duties of Presidency.] ^ In Case of the Removal 
 of the President from Office, or of his Death, Resignation, or Inabihty to dis- 
 charge the Powers and Duties of the said Office, the same shall devolve on 
 the Vice President, and the Congress may by Law provide for the Case of 
 Removal, Death, Resignation or Inability, both of the President and Vice 
 President, declaring what Officer shall then act as President, and such Officer 
 shall act accordingly, until the Disabihty be removed, or a President shall be 
 elected. 
 
 Succession to duties of President is provided for by act of January 19, 1886 (24 Stat., 1). 
 
 [Clause 6. Compensation of President.] ' The President shall, at stated 
 Times, receive for his Services, a Compensation, which shall neither be en- 
 creased nor diminished during the Period for which he shall have been elected, 
 and he shall not receive withm that Period any other Emolument from the 
 United States, or any of them. 
 
 80 
 
Coininander in Chief. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. II, Sec. 2. 
 
 [Clause 7. Oath of President.] ^ Before he enter on the Execution of his 
 Office, he shall take the following Oath or Affirmation: — "I do solenmly swear 
 (or affirm) that I will faithfully execute the Office of President of the United 
 States, and will to the best of my Ability, preserve, protect and defend the 
 Constitution of the United States." 
 
 Section 2. [Clause 1. Commander in Chief; authority over heads of 
 departments ; pardoning power.] ^ The President shall be Commander in Chief 
 of the Army and Navy of the United States, and of the IVIilitia of the several 
 States, when called into the actual Service of the United States; he may require 
 the Opinion, m wi-iting, of the principal Officer in each of the executive Depart- 
 ments, upon any subject relating to the Duties of their respective Offices, and 
 he shall have Power to grant Reprieves and Pardons for Offenses against the 
 United States, except in Cases of Impeachment. 
 
 I. Powers of Commander in Chief. 
 II. Executive Departments. 
 III. Power to Pardon Offenses Against 
 United States. 
 
 I. Powers of Commander in Chief. 
 
 Powers of Congress and of the Presi- 
 dent. — "CongreBS has the power not only to 
 raise and support and govern armies, but to 
 declare war. It has, therefore, the power to 
 provide by law for carr^dng on war. This 
 power necessarily extends to all legislation 
 essential to the prosecution of war with vigor 
 and success, except such as interferes with the 
 command of the forces and the conduct of cam- 
 paigns. That power and duty belong to the 
 President as Commander in Chief. _ Both these 
 powers are derived from the Constitution, but 
 neither is defined by that instrument. Their 
 extent must be determined by their nature and 
 by the principles of our institutions. The 
 power to make the necessary laws is in Congress; 
 the power to execute in the President. Both 
 powers imply many subordinate and auxiliary 
 powers. Each includes all authority essential 
 to its due exercise. But neither can the Presi- 
 dent in war more than in peace intrude upon 
 the proper authority of Congress, nor Congress 
 upon the proper authority of the President. 
 Both are servants of the people, whose will is 
 expressed in the fundamental law." (Ex parte 
 Milligan, 4 Wall. , 139 ; concurring opinion of four 
 justices.) 
 
 "Congress may increase the Army, or reduce 
 the Army, or abolish it altogether; but so long 
 as we have a military force, Congress can not 
 take away from the President the supreme com- 
 mand. It is true that the Constitution has con- 
 ferred upon Congress the exclusive power 'to 
 make rules for the government and regulation 
 of the land and naval forces'; but the two 
 powers are distinct; neither can trench upon 
 the other; the President can not, under the 
 disguise of military orders, invade the legislative 
 regulations by which he, in conmion with the 
 Army, must be governed; and Congress cannot, 
 in the disguise of 'rules for the government' of 
 the Army, impair the authority of the President 
 as Commander in Chief." (Swaim v. U. S., 28 
 
 Ct. Cls., 173, 221; affirmed, 165 U. S., 553; 28 
 Op. Atty. Gen., 274. 
 
 "No act of Congress, no act even of the Presi- 
 dent himself, can, by constitutional possibility, 
 authorize or create any military officer not sub- 
 ordinate to the President." (7 Op. Atty. Gen., 
 465.) 
 
 An appropriation under the War Department 
 was made "to be expended according to the 
 plans and estimates of Capt. Meigs and under 
 his superintendence: Provided, That the office 
 of engineer of the Potomac waterworks is hereby 
 abolished, and its duties shall hereafter be dis- 
 charged by the chief engineer of the Washington 
 Aqueduct." In answer to the contention that 
 this appropriation was mandatory upon the 
 President as to the character of duties to be 
 performed by Capt. Meigs in connection with 
 its expenditure, the Attorney General said: 
 "As Commander in Chief of the Army it is your 
 right to decide, according to your own judg- 
 ment, what officer shall perform any particular 
 duty, and as the supreme executive magistrate 
 you have power of appointment. Congress 
 could not, if it would, takeaway from the Presi- 
 dent or in anywise diminish the authority con- 
 ferred upon him by the Constitution. This 
 clause of the appropriation bill was not intended 
 to appoint Capt. Meigs chief engineer of the 
 aqueduct, nor was it meant to interfere with 
 your authority over him or any other of your 
 military subordinates. * * * If Congress 
 had really intended to make him independent 
 of you, that purpose could not be accomplished 
 in this indirect manner any more than if it was 
 attempted directly. Congress is vested with 
 legislative power; the authority of the Presi- 
 dent is executive. Neither has a right to inter- 
 fere with the functions of the other. Every 
 law is to be carried out so far forth as is consistent 
 with the Constitution and no further. * * * 
 You are therefore entirely justified in treating 
 this condition (if it be a condition) as if the 
 paper on which it is written were blank." (9 
 Op. Atty. Gen., 462.) 
 
 "The first aspect in which this clause [see 
 preceding paragraph] presented itself to my 
 mind was that it interfered with the right of the 
 President to be 'Commander in Chief of the 
 Army and NaA-y of the United States.' If this 
 had really been the case there would have been 
 an end to the question. Upon further examina- 
 
 81 
 
Art. II, Sec. 2. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Commander in Chief. 
 
 tion I deemed it impossible that Oongresa could 
 have uitoiuled to interfere with the clour rij^ht 
 of the Prosidojit to command tlio Army and to 
 order its officers to any duty he might deem most 
 expedient for the public interest. If they could 
 withdraw an officer from the command of the 
 President and select him for the performance of 
 an executive duty, they miglit upon tlie same 
 principle annex to an appropriation to carry on 
 a war a condition requiring it not to be u.sod for 
 the defense of the country unless a particular 
 person of its own selection should command tlie 
 Army. It was impossible that (\ingross could 
 have had sucli an intention, aaid therefore, 
 according to my construction of the clause in 
 question, it merely designated Capt. Meigs as 
 its preference for the work, without intending 
 to deprive the President of the power to order 
 him to any other Army duty for the performance 
 of which he might consider him better adapted. 
 
 * * * Under these circumstances I have 
 deemed it but fair to inform Congress that 
 whilst I do not consider the bill unconstitu- 
 tional, this is only because, in my opinion, 
 Congress did not intend by the kuiguage which 
 they have employed to interfere ^vith my abso- 
 lute authority to order Capt. Meigs to any other 
 service I might deem expedient. My perfect 
 right still remains, notwithstanding the clause, 
 to send him away from Wafihington to any part 
 of the Union to superintend the erection of a 
 fortification or any other appropriate duty. 
 
 * * * It ia not improbable that another 
 question of grave importance may arise out of 
 this clause. Is tlie appropriation conditional 
 and will it fall pro^-ided I do not deem it proper 
 that it shall be expended under the superin- 
 tendence of ('apt. Meigs? * ■* * I desire to 
 express no opinion upon the subject. Should 
 the question ever arise, it shall have my serious 
 consideration." (Messages and Papers of the 
 Presidents, vol. 5, p. 597. As to invalidity of the 
 condition in this case, see Attorney General's 
 opinion quoted in preceding paragraph.) 
 
 An appropriation was made for the support 
 and maintenance of the Marine Corps, with a 
 condition attached that "no part of the appro- 
 priation herein made for the Marine Corps shall 
 be expended for the purposes for which said 
 appropriations are made unless officers and 
 enUsted men shall serve as heretofore on board 
 all battleships and armored cruisers, and also 
 upon such other vessels of the Navy as the Presi- 
 dent may direct, in detachments of not less 
 than eight per centum of the strength of the 
 enlisted men of the Navy on said vessels." It 
 was held by the Attorney General [without 
 citing autlioritics] that the condition attached 
 to this appiopriation was valid and constitu- 
 tional, and tliat if the President as Commander 
 in Chief desired to employ the Marine Corps he 
 must comply with the condition expressed. 
 "Inasmuch as Congress has power to create or 
 not to create, as it sliall deem expedient, a 
 marine corps, it has power to create a marine 
 corps, make appropriation for its pay, but pro- 
 vide that such appropriation shall not be avail- 
 able unless the Alanne Corps be employed in 
 some designated way." (27 Op. Atty. Gen., 
 259.) 
 
 When Congress created the office of adjutant 
 and inspector of the Marine Corps, without speci- 
 
 fying its duties or where they should be per- 
 formed, it was intended that the office should 
 l)e clothed witii tlie functions and duties which 
 by established cuotom had been performed by 
 such lui officer in a miliUiry 8er\ace. The duties 
 of an adjutant are such as rerjuire that they be 
 performed at head(|uarters of his organization. 
 Accordingly, a regulation approved by tlie 
 President, purporting to authorize or permit the 
 detail of the adjutant and inspector of the 
 Marine Corps to duty away from headquarters, 
 ajid placing the office at headquarters in charge 
 of a subordinate officer of the adjutant and 
 inspector's department, is contrary' to law and 
 of no effect. The President may have the right 
 to detail this officer temporarily away from head- 
 quarters, but this can not be established as a 
 permanent system. (30 Op. Atty. Gen., 234.) 
 fin this case it had previously been held by the 
 Navy Department tiiat the law did not specify 
 that the adjutant and inspector of the Marine 
 Corps should be permanently stationed at 
 headquarters; and, follo\\Txig the Meigs case and 
 others above cited, that Congress was not em- 
 powered to limit the authority of the President 
 m this respect; and accordingly that the matter 
 was properly a subject for regulation by the 
 President. File 26836-7:35, Feb. 13, 1913.] 
 
 "It ia * * * no degradation of the posi- 
 tion of the President to say, through the forms 
 of judicial construction in passing on his execu- 
 tive acts with reference to the retired list, that 
 his power is regulated alone by acts of Congress 
 * * *. The retired list is of comparatively 
 recent origin; and for years the Army endured 
 through peace and survived in war, efficient in 
 the hands of the President for the maintenance 
 of the national honor, and the due enforcement 
 of the law, without the existence of the retired 
 list, 80 the regulation of that department of the 
 service can in no wise interfere with the con- 
 stitutional right and power of the President as 
 Commander in Chief of the military forces of 
 the United States. Wliile the President is 
 made Commander in Chief by the Constitution, 
 Congress have the right to legislate for the Army, 
 not impairing his efficiency as such commander 
 in chief, and when a law is passed for the regu- 
 lation of the Army, having that constitutional 
 qualification, he becomes as to that law an 
 executive officer, and is limited in the discharge 
 of his duty by the statute. " (McBlair v. U. S., 
 19 Ct. Cls., 540, 541.) 
 
 "The power of the Executive to establish 
 rules and regulations for the government of 
 the Army, is undoubted." (U. S. v. EUason, 
 16 Pet., 291.) 
 
 Army regulations have the force of law 
 "when founded on the President's constitu- 
 tional powers as Commander in Chief of the 
 Army.'"' (In re Smith, 23 Ct. Cls., 459.) 
 
 For other cases, see Article I, section 8, 
 clause 14; see also note to sections 161 and 
 1547, Revised Statutes. 
 
 Power of President over subordinates. — 
 "A military ofiicer can not be invested with 
 greater authority by Congress than the Com- 
 mander in Chief, and a power of command 
 deA'olved by statute on an officer of the Army 
 or Na\'y ia necessarily shared by the President. 
 The power to command depends upon disci- 
 pline and discipline depends upon the power to 
 
 82 
 
Pardoning Power. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. II, Sec. 2. 
 
 punish; and the power to punish can only be 
 exercised in time of peace through the medium 
 of a military tribunal. If the President has no 
 authority in matters pertaining to military 
 tribunals unless it be 'expressly' granted by 
 Congress, then Congress by the simple expedi- 
 ent of exclusively granting the authority to 
 appoint courts-martial and approve sentences 
 to a few officers of the Army, tacitly ignoring 
 the President, could practically defeat the 
 express declaration of the Constitution and 
 strip the office of commander in cliief of all 
 real powers of command. The court can not 
 ascribe any such purpose to the legislation of 
 Congress." (Swaim v. U. S., 28 Ct. Cls., 173, 
 221; affirmed 165 U. S., 553; followed 28 Op. 
 Atty. Gen., 487.) 
 
 "As Commander in Chief the President is 
 authorized to give orders to his subordinates, 
 and the convening of a court-martial is simply 
 the giving of an order to certain officers to as- 
 semble as a court, and when so assembled, to 
 exercise certain powers conferred upon them 
 by the Articles of War. " (Runkle's case, 91 
 Ct. Cls., 396, 409, approved in Swaim v. U. S., 
 165 U. S., 553, 556, holding that "it is within 
 the power of the President as Commander in 
 Chief to convene a general court-martial, " in 
 the Army. In the Navy the President is ex- 
 pressly authorized by statute to convene gen- 
 eral courts- martial. Sec. 1624 R. S., art. 38.- 
 
 "It is said that courts-martial are the crea- 
 tures of statute law, but so also are regiments. 
 There can be no standing army without statu- 
 tory authority. Congress may place the com- 
 mand of a regiment in a colonel, a lieutenant 
 colonel, a major, or any other officer; but when 
 Congress so enact, they without words to that 
 effect Likewise place the command in the Com- 
 mander in Cliief. His name is to be understood 
 as written in every statute which confers upon 
 a military officer military authority. " (Swaim 
 V. U. S., 28 Ct. Cls., 173, 224; affirmed 165 U. S., 
 553.) 
 
 An order of the Secretary of War to an 
 officer of the Army is the order of the President 
 and should be obeyed as such. An appeal from 
 such order to the President is no more than a 
 remonstrance addressed to the President against 
 hiniself. (9 Op. Atty. Gen., 463, 465. For other 
 decisions, see note to Art. II, sec. 1, clause 1; 
 see also note to sec. 158, R. S.) 
 
 Militia. — The President is the Commander 
 in Chief of the Army and Navy at all times, and 
 Commander in Chief of the militia only when 
 called into the actual service of the United 
 States. (Johnson v. Sayre, 158 U. S., 115; 10 
 Op. Atty. Gen., 17.) 
 
 II. Executive Departments. 
 
 The "principal ofla.cer in each of the 
 executive departments," referred to in this 
 clause means the same as "heads of depart- 
 ments" in the next clause of this section relat- 
 ing to appointments to office. (U. S. v. Ger- 
 maine, 99 U. S., 511.) See note to section 158, 
 Revised Statutes, as to origin and growth of 
 Executive Departments, and see note to Art. 
 II, sec. 1, clause 1. 
 
 The President is authorized by this section 
 to require the opinion of the Attorney General 
 
 in any matter relating to the duties of his 
 department, and his authority in this respect is 
 not restricted by section 354, Revised Statutes, 
 to obtaining the Attorney General's opinion 
 only upon questions of law. (23 Op. Atty. 
 Gen., 360.) 
 
 The President has also required the opinion 
 in writing of officers subordinate to the head of 
 a department. (See veto message of President 
 Roosevelt, Apr. 7, 1908, 42d Cong. Rec, pt. 5, 
 p. 4503, 60th Cong., 1st sess., noted under Art. 
 I, sec. 7, clause 2, with which there was trans- 
 mitted a written opinion furnished by the Chief 
 of the Bureau of Navigation, Navy Department, 
 by direction of the President.) 
 
 III. Power to Pardon Offenses Against 
 United States. 
 
 "A pardon is an act of gfrace by which an 
 offender is released from the consequences of 
 his offense, so far as such release is practicable 
 and within control of the pardoning power, or 
 of officers under its direction. It releases the 
 offender from all disabilities imposed by the 
 offense, and restores to him all his civil rights. 
 In contemplation of law, it so far blots out the 
 offense that afterwards it can not be imputed 
 to him to prevent the assertion of his legal 
 rights. It gives to him a new credit and capac- 
 ity, and rehabilitates him to that extent in 
 his former position. But it does not make 
 amends for the past. It affords no relief for 
 what has been suffered by the offender in his 
 person by imprisonment, forced labor, or other- 
 wise; it does not give compensation for what 
 has been done or suffered, nor does it impose 
 upon the Govermnent any obligation to give it. 
 Tne offense being established by judicial pro- 
 ceedings, that which has been done or suffei'ed 
 while they were in force is presumed to have 
 been rightfully done or justly suffered, and no 
 satisfaction for it can be required." (Knote v. 
 U. S., 95 U. S., 149; Illinois Cen. R. Co. v. Boa- 
 worth, 133 U. S., 104.) 
 
 Pardoning power. — "A power to pardon 
 seems, indeed, indispensable under the most 
 correct administration of the law by human 
 tribunals. Since, otherwise, men would some- 
 times fall a prey to the vindictiveness of accu- 
 sers, the inaccuracy of testimony, and the fal- 
 libility of jurors and courts." (1 Kent, Com., 
 Lee. XIII, p. 284.) 
 
 "Under the Constitution the power of the 
 President to grant reprieves and pardons is 
 plenary^ absolute, and without limit or control 
 as to the offense, the beneficiany^, the time, or 
 the nature or extent of his pardon." (27 Op. 
 Atty. Gen., 178.) 
 
 "The power of pardon in criminal cases has 
 been exercised from time immemorial by the 
 executive of that nation whose language is our 
 language, and to whose judicial institutions 
 ours bear a close resemblance. We adopt their 
 principles respecting the operation and effect 
 of a pardon, and look into their books for the 
 rules prescribing the manner in which it is to 
 be used by the person who would avail him-self 
 of it." (U. S. V. Wilson, 7 Pet., 160, per Mar- 
 shall, C. J.; see also. Ex parte Wells, 18 How., 
 307; Burdick v. U. S., 236 U. S., 79.) 
 
 83 
 
Art. II, Sec. 2. 
 
 n. 1. THE CONSTITUTION. 
 
 Pardoning Powei 
 
 This clause confers upon the President the 
 power to pardon every offense known to the 
 law, with the single exception stated (Ex parte 
 Garland, 4 Wall., 333; Ex parte Wells, 18 How., 
 309) ; that exception, accordin;^ to a well-known 
 les^al maxim ['cxprestio unius est exclusio 
 alterius,"' — the expression of one thing is the 
 exclusion of another], slrenjrthens the applica- 
 tion of the provision to all offenses not excepted, 
 "so that we can certainly say there can be no 
 offense against the United States, except in 
 cases of impeachment, over which the Presi- 
 dent has not an absolute pardoning power." 
 (U. S. I'. Thomasson, 28 Fed. Caa. No. 16479.) 
 
 Contempt of court. — Contempts of the 
 Federal courts are offenses against the United 
 States, and therefore within the pardoning 
 power of the President. "If we adopt, as the 
 Supreme Court of the United States has decided 
 we should, the principles established by the 
 common law respecting the operation of a par- 
 don, there can be no doubt it may embrace 
 such a case." (3 Op. Attv. Gen., 622; 4 Op. 
 Atty. Gen., 458; In re Mullee, 17 Fed. Cas. No. 
 9911 .) So far as concerns the President's power 
 to pardon such contempts, "there need be no 
 he.''itation to act in the premises. Indeed, I 
 know beyond question that the power exists." 
 (19 Op. Atty. Gen., 476.) 
 
 The power of the President to pardon for 
 contempt of court is seriously doubted in any 
 case, and upon principle and authority can not 
 be held to exist in cases of civil contempt, 
 where the proceeding is instituted to enforce 
 the rights of private parties to suits, and to 
 compel obedience to orders and decrees made 
 to enforce the rights and administer the reme- 
 dies to which the coiirt has found them entitled. 
 (In re Nevitt, 117 Fed. Rep., 448; see also 
 Hendryx v. Fitzpatrick, 19 Fed. Rep., 811.) 
 
 [The Supreme Court has never passed defi- 
 nitely on the existence of the pardoning power 
 in cases of contempt of court. In the case of 
 The Laura, 114 U. S., 411, 413, it was stated: 
 "It may be conceded that, except in cases of 
 impeachment and where fines are imposed by a 
 coordinate departinent of the Governmeat, for con- 
 tempt of its authority, the President, under the 
 general, unqualified grant of power to pardon 
 offenses against the United States, may remit 
 fines, penalties, and forfeitiu-es of every descrip- 
 tion arising under the laws of the United States." 
 In Ex parte Fisk, 113 U.S. ,713, 718, after hold- 
 ing that under the laws then i n force, ' ' the exer- 
 cise of the power of punishment for contempt 
 of their orders by courts of general jurisdiction 
 is not subject to review by writ of error or appeal 
 to this court," it was remarked: "Nor is there, 
 in the system of Federal jurisprudence, any 
 relief against such orders when the court has 
 authority to make them, except through the 
 court making the order, or possibly by the exer- 
 cise of the pardoning power. ^^^ 
 
 General courts-martial in the Navy are au- 
 thorized to punish naval witnesses for contempt 
 by article 42 of the Articles for the Govermnent 
 of theNaA^- (sec. 1624, R. S.); civilian witnesses 
 guilty of contempt are punishable by informa- 
 tion in the district court of the United States, 
 
 which information it is the duty of the districi 
 attorney to file upon certification of the facts to 
 him by the naval court. (Act Feb. 16. 1909 
 sec. 12, 35 Stat., 622.) 
 
 When pardon may be granted. — The 
 President "can pardon or reprieve only when 
 an offense against tlie law has been established 
 by proof or the admissions of the party, and a 
 penalty thereby incurred." (2 Op. Atty. Gen. „ 
 485; see also Burdick v. U. S., 236 U. S., 79, in 
 which this question was discussed but not de- 
 cided.) 
 
 The power to pai'don any offense "may be 
 exercised at any time after its commission, 
 either before legal proceedings are taken, or 
 during their pendency, or after conviction and 
 judgment." (Ex parte Garland, 4 Wall., 333; 
 see also 60p. Atty. Gen., 20; 5 Op. Atty. Gen., 
 687; 2 Op. Atty. Gen., 275; 1 Op. Atty. Gen.,341; 
 compare Burdick v. U. S., 236 U. S., 79.) 
 
 The Navy Department has adopted the rule 
 formulated by the Department of Justice and 
 approved by the President, of declining to 
 recommend the issuance of a pardon in any 
 case prior to conviction. (File 26282-84; 
 Mar. 27, 1912; see also file 26262-1344:5; but see 
 file 26282-85, Apr. 8, 1912.) 
 
 In cases of enlisted men convicted of deser- 
 tion from the naval service, the rule was adopted 
 by the Navy Department of recommending that 
 a pardon be issued, for the purpose of restoring 
 rights of citizenship forfeited under sections 
 1996 _ and 1998, Revised Statutes, where the 
 applicant had served sentence for the offense, 
 and then only after two years from date of dis- 
 charge from prison and provided the applicant 
 produces satisfactory affidavits to the effect that 
 he has lived an upright and industrious life 
 since the date of his discharge. (File 26282-84; 
 loss of the rights of citizenship do not now fol- 
 low upon conviction of desertion except in time 
 of war. Act Aug. 22, 1912, 37 Stat., 356.) 
 
 ^\^lere a naval prisoner has sers^ed sentence 
 for an offense other than desertion, the Navy 
 Department will not recommend that he be 
 pardoned, as loss of the rights of citizenship 
 does not attach in his case. (File 26282-214, 
 Mar. 18, 1915. See also, 1 Op. Atty. Gen., 359; 
 23 Op. Atty. Gen., 360. As to conclusiveness of 
 finding of court-martial, see note to Art. I, sec. 
 7, clause 2, "Veto of bill to annul the finding 
 and sentence of a court-martial.") 
 
 The President may exercise his pardoning 
 power at any time, so long as any of the legal 
 consequences of the offense remain. (Stetler's 
 case, 22 Fed. Cas. No. 13380.) Thus, loss of 
 rmmbers being a continuing punishment, the 
 President may, by pardon, restore the officer to 
 his original position. (12 Op. Atty. Gen., 547; 
 17 Op. Atty. Gen., 656; see also 20 Op. Atty. 
 Gen., 243. And see 17 Op. Atty. Gen. 31, file 
 26261-246:1, Mar. 18, 1914, and 26262-1794:1.) 
 But the promotion of an officer completely ex- 
 ecutes a sentence of loss of numbers and a 
 pardon issued thereafter can not restore him to 
 his original position. (File 26261-246:1, Mar. 
 18, 1914; 26262-1794:1, Dec. 21, 1916. But see 
 contra file 1208, Mar. 31, 1905, case of Maj. 
 James E. Mahoney. See also 4 Op. Atty. Gen., 
 
 84 
 
Pardoning Power. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. II, Sec. 2. 
 
 8, and 31 Op. Atty. Gen., 419, as to effect of 
 promotion upon sentence of suspension from 
 rank and pay . ) 
 
 "I have already, in the exercise of the par- 
 doning power with which the President is 
 vested by the Constitution, remitted the con- 
 tinuing penalty which had made it impossible 
 for Fitz John Porter to hold any office of trust or 
 profit under the Government of the United 
 States." (Veto message of President Arthur, 
 July 2, 1884, noted under Art. I, sec. 7, clause 
 
 2.) 
 
 When the sentence of a court has been served, 
 a pardon may be granted to remove the dis- 
 ability of the offender to testify as a witness 
 which followed upon conviction of felony . (U . 
 S. V. Jones, 26 Fed. Cas. No. 15493; Boyd v. 
 V. S.,142U. S.,453.) 
 
 After death of a deserter a pardon can not be 
 issued at request of his representatives. (File 
 3846-98, June 10, 1898.) 
 
 "This power of the President is not sub- 
 ject to legislative control. Congress can 
 neither limit the effect of his pardon, nor ex- 
 clude from its exercise any class of offenders. 
 The benign prerogative of mercy reposed in 
 him can not be fettered by any legislative 
 restrictions." (Ex parte Garland, 4 Wall., 333. 
 See also, U. S. v. Klein, 13 Wall., 147; 5 Op. 
 Atty. Gen., 582; 8 Op. Atty. Gen., 281; 20 Op. 
 Atty. Gen., 668; 22 Op. Atty. Gen., 39; 23 Op. 
 Atty. Gen., 360. But see act Aug. 22, 1912, 37 
 Stat., 356, which provided that "the loss of 
 rights of citizenship heretofore imposed by law 
 upon deserters from the military or naval serv- 
 ice may be mitigated or remitted by the Presi- 
 dent where the offense was committed in time of 
 peace and where the exercise of such clemency 
 will not be prejudicial to the public interests.") 
 
 The power of the President "can not be in- 
 terrupted, abridged, or limited by any legisla- 
 tive enactment. "_ (The Laura, 114 U ." S . , 411 . ) 
 
 "It is not within the power of Congress to im- 
 pose or continue in force a penalty or punish- 
 ment for an offense, or conviction thereof, that 
 has been thus pardoned, nor impose or con- 
 tinue in force disabilities that have been thus 
 removed." (27 Op. Atty. Gen., 178.) 
 
 Power of Congress. — "Although the Con- 
 stitution vests in the President power to grant 
 reprieves and pardons for offenses against the 
 United States, this power has never been 
 held to take from Congress the power to pass acta 
 of general amnesty." (Brown v. Walker, 161 
 U. S., 591.) 
 
 Power of other ofilcers. — "Is that power 
 [pardoning power of President] exclusive, in 
 the sense that no other officer can remit for- 
 feitures or penalties incurred for the violation 
 of the laws of the United States? This question 
 can not be answered in the affirmative without 
 adjudging that the practice in reference to re- 
 missions by the Secretary of the Treasury and 
 other officers, which has been observed and 
 acquiesced in for nearly a century, is forbidden 
 by the Constitution. That practice com- 
 menced very shortly after the adoption of the 
 instrurnent, and was perhaps suggested by legis- 
 lation in England, which, without interfering 
 with, abridging, or restricting the power of 
 pardon belonging to the Grown, invested certain 
 
 subordinate officers with authority to remit 
 penalties and forfeitures arising from violations 
 of the revenue and customs laws of that 
 country." (The Laura, 114 U. S.,411; seealso 
 6 0p. Atty. Gen., 488.) 
 
 The powers of the President are not as broad 
 as the powers of an English king. By the Con- 
 stitution "the power to grant reprieves and 
 pardons is given, in terms, to the President; 
 but the power to remit forfeitures, fines, and 
 penalties (as distinct from the pardon of crimes) 
 is not given. Yet the king had both powers." 
 (10 Op. Atty. Gen., 454. But see The Laura, 
 114 U. S., 411, in which it wasstated: "Itmay 
 be conceded that, except in cases of impeach- 
 ment and where fines are imposed by a coordi- 
 nate department of the Government for con- 
 tempt of its authority, the President, under the 
 general unqualified grant of power to pardon 
 offenses against the United States, may remit 
 fines, penalties, and forfeitures of every descrip- 
 tion arising under the laws of Congress.") 
 
 Article 112 of the Articles of War (sec. 1342, 
 R. S.) provided, with reference to the Army, 
 that "Every officer who is authorized to order a 
 general court-martial shall have power to pardon 
 or mitigate any punishment adjudged by it, ex- 
 cept the punishment of death or of dismissal of 
 an officer. Every officer commanding a regi- 
 ment or garrison in which a regimental or gar- 
 rison court-martial may be held, shall have 
 power to pardon or mitigate any punishment 
 which such court may adjudge." (This article 
 of war has been superseded by act of Aug. 29, 
 1916, 39 Stat., 658, amending sec. 1342, R. S., 
 arts 50-53, which latter act was amended by 
 act of July 9, 1918, 40 Stat., 882, 883. See 1 Op. 
 Atty. Gen., 327; 4 Op. Atty. Gen., 444; 6 Op. 
 Atty. Gen., 124, 125; 19 Op. Atty. Gen., 106; 17 
 Op. Atty. Gen., 656; see also People -z;. Bowen, 
 43Cal.,441.) 
 
 By article 54 of the Articles for the Govern- 
 mentof the Navy (sec. 1624, R. S.) it is provided 
 that "Every officer who is authorized to convene 
 a general court-martial shall have power, on re- 
 vision of its proceedings, to remit or mitigate, 
 but not to commute, the sentence of any such 
 court which he is authorized to approve and con- 
 firm." (See 20 Op. Atty. Gen., 243; 15 Op. 
 Atty. Gen., 175; 17 Op. Atty. Gen., 31; 10 Op. 
 Atty. Gen., 64; 17 Comp. Dec, 311; 13 Comp. 
 Dec, 726; see also art. 33, A. G. N., as to sen- 
 tences of summary courts-martial.) 
 
 It may be questioned whether section 1624, 
 Revised Statutes, article 54, applies to the 
 action of the President. (Mullan v. U. S., 212 
 U.S., 516.) 
 
 "It may be conceded that there is a technical 
 difference between the commutation of a sen- 
 tence and the mitigation thereof. The first is a 
 change of a punishment to which a person has 
 been condemned into one less severe, substitut- 
 ing a less for a greater punishment by authority 
 of law. To mitigate a sentence is to reduce or 
 lessen the amount of the penalty or punish- 
 ment." (Mullan V. U. S., 212 U. S., 516.) 
 
 By act of February 16, 1909 (sec. 9, 35 Stat. 
 621), it is provided "That the Secretary of the 
 Navy may set aside the proceedings or remit or 
 mitigate, in whole or in part, the sentence im- 
 posed by any naval court-martial convened by 
 
 85 
 
Art. II, Sec. 2. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Pardoning Power. 
 
 his order or by that of any officer of the Xavy 
 or Marine Corps." 
 
 The Adjutant General of the Army has power, 
 "by direction of the President of the United 
 States," to si<;n a letter removing the disabili- 
 ties resulting from the conviction of an ofiicer, 
 which letter will operate as a pardon by the 
 President. (27 Op. Atty. Gen. 178: see below 
 "Form of pardon." l 
 
 Constructive pardon. — ^The promotion of 
 an oliicer of tlie Marine Corps is a constructive 
 pardon of a pre\dous sentence pronounced but 
 not execufecl. (6 Op. Atty. Gen., 123.) Simi- 
 larly, as to the promotion of an officer under 
 arrest on charges. [4 Op. Atty. Gen., 124; 8 Op. 
 Atty. Gen., 237.) The promotion of a passed 
 midsliipman to the office of lieutenant in the 
 Navy, 18 an implicit pardon of sentence of sus- 
 pension on half pay which he was under. (4 Op. 
 Atty. Gen., 8.) So also as to the appointment 
 of a convicted deserter as a commissioned officer 
 intheNavy. (File 5460-82, June 3, 191G). But 
 where steps have been taken with a view to the 
 promotion of an officer, before the promotion is 
 consummated he may be tried by court-mar- 
 tial for offenses previously committed. (G. C. 
 M. records, Nos. 23553, 26451, 28681 , and 28798). 
 And where an officer was nominated and con- 
 firmed for advancement in rank, after he has 
 been recommended for trial by court-martial, 
 but the commission was not signed by the 
 President, the necessary steps for his trial were 
 proceeded with until stayed by the acceptance 
 of said officer's resignation "for the good of the 
 servdce." (File 26251-2833, Mar. 31, 1910.) 
 
 An order of the Secretary of the Navy to an 
 officer, while under sentence of suspension, 
 to attend a court-martial as a witness does 
 not operate as a constructive pardon. (6 Op. 
 Atty. Gen. , 714.) Nor does the restoration of an 
 accused person to duty wdthout trial. Inas- 
 much as the Secretary of the Navy has no power 
 to expressly pardon any offense — this being a 
 power vested by the Constitution in the Presi- 
 dent, wliich can not be delegated— it follows 
 that no action of the Secretary could amount to 
 a constructive pardon. (File 26251-1963:1, 
 Aug. 17, 1910, p. 13.) 
 
 A pardon by implication or construction is a 
 thing not known to or recognized by the law. 
 Accordingly, held that the temporary promotion 
 of an officer of the Navy while under charges 
 awaiting trial by general court-martial does not 
 operate as a constructive pardon of the offenses 
 charged against him. As to effect of perma- 
 nent promotion upon execution of a sentence 
 imposed in a lower grade, quaere. (31 Op. 
 Atty. Gen. 419, overruling opinions of Attorneys 
 General above cited relating to constructive 
 pardons.) 
 
 Conditional pardon. — The power of the 
 President to grant conditional pardons is 
 unquestioned, and is commonly exercised in 
 practice. (See 1 Op. Atty. Gen., 482; 11 Op. 
 Atty. Gen., 229; Waring -y. U. S., 7 Ct. Cls., 502; 
 In re Ruhl, 20 Fed. Cas. No. 12124; U. S. v. 
 Ground, 27 Fed. Cas. No. 16299; U. S. v. 
 Klein, 13 Wall., 142; U. S. v. Wilson, 7 Pet., 161; 
 Semmes v. U. S., 91 U. S., 21; see also 5 Op. 
 Atty. Gen., 368; 14 Op. Atty. Gen., 124.) 
 
 Thus, a pardon has been granted to an 
 enlisted man in the Marine Corps on condition 
 
 that he reenlist. (Case of John L. Lennon, file 
 5945-19; see also file 3000-1898.) So also, an 
 ofiicer of the Navy, sentenced to loss of num- 
 bers, has been pardoned on condition that he 
 take rank in a specified place in his grade, below 
 his original position. (File 26282-26.) 
 
 "When a person convicted of murder accepts 
 a 'commutation of sentence or pardon' upon 
 condition that he be imprisoned at hard labor 
 for the term of his natural life, there can be no 
 question as to the binding force of the accept- 
 ance." (In re lloss, 140 U. S., 453.) 
 
 Partial pardon. — The President may by 
 pardon remit disalnlities resulting from convic- 
 tion, without pardoning the offense. Tluis he 
 may issue pardons to deserters for the purpose of 
 restoring their rights of citizenship (14 Op. 
 Atty. Gen., 124), and such pardons have been 
 frequently granted in practice (file 26282; 
 Report of Judge Advocate General to Presi- 
 dent's Commission on Economy and Efficiency, 
 Nov. 28, 1910, file 28067; see also 3 Op. Atty. 
 Gen., 418; 11 Op. Atty. Gen., 227; U. S. v. 
 Lukins, 26 Fed. Cas. No. 15638), and he may 
 mitigate a sentence of dismissal in the case of an 
 officer of the Navy to suspension for a term of 
 years without pay. (4 Op. Atty. Gen., 433: 
 15 Op. Attv. Gen., 464; Mullan v. U. S., 212 
 U. S., 516.) 
 
 General pardon and amnesty. — The Presi- 
 dent has power to grant general amnesty by 
 proclamation, without legislative authority. 
 (Armstrong v. U. S., 13 Wall., 154; 20 Op. Atty. 
 Gen., 330.) "Amnesty" is usually exercised 
 in favor of classes of persons prior to conviction. 
 (Brown v. Walker, 161 U. S., 601.) 
 
 A general pardon and amnesty, made by a 
 public proclamation of the President, has the 
 force of public law, and courts and officers must 
 take notice of it, whether especially called to 
 their attention or not. (Jenlans v. Collard, 145 
 U. S.. 560.) In this respect, a general pardon 
 is to be distinguished from an individual par- 
 don, which is the private, though official, act of 
 the Chief Executive, and will not be judicially 
 noticed by the court, but must be specially 
 pleaded. (U. S. v. Wilson, 7 Pet., 159; Bur- 
 dick i>. U. S., 236 U. S., 79.) 
 
 Amnesty and pardon "are of different char- 
 acter and have different purposes. The one 
 overlooks offense; the other remits pimishment. 
 The first is usually addressed to crimes against 
 the sovereignty of the State, to political offenses, 
 forgiveness being deemed more expedient for 
 the public welfare than prosecution and piinish- 
 ment . The second condones infractions of the 
 peace of the State. Amnesty is usually general, 
 addressed to classes, or even communities — a 
 legislative act or under legislation, constitu- 
 tional or statutorj'^the act of the siipreme mag- 
 istrate. There may or may not be distinct acts 
 of acceptance. If other rights are dependent 
 upon it and are asserted, there is aflirmative 
 evidence of acceptance. * * * If there be 
 no other rights, its only purpose is to stay the 
 movement of the law. Its function is exercised 
 when it overlooks the offense and the offender, 
 leaving both in oblivion." (Burdick v. U. S., 
 236U.'S.,79.) 
 
 Delivery and acceptance. — The pardon is 
 a deed, to the validity of which delivery is 
 essential, and the delivery is not complete 
 
 86 
 
Pardoning Power. 
 
 Pt. 1. TEE CONSTITUTION. 
 
 Art. II, Sec. 2. 
 
 without acceptance. It may be rejected by 
 the person to whom it is tendered, and, if re- 
 jected, there is no power in the court to force it 
 upon the individual. (U. S. v. "Wilson, 7 Pet., 
 150; Burdick v. U. S., 236 U. S., 79.) 
 
 A pardon must be accepted before a witness 
 may be required to answer incriminating ques- 
 tions connecting him with matters for which the 
 pardon grants liim immimity . The witness has 
 the right, if he desires to do so, to refuse the 
 pardon and decline to testify. (Burdick v. 
 U.S., 236 U.S.. 79.) 
 
 Procedure upon requests for pardon. — 
 Pursuant to an undei'standing between the 
 Department of Justice and the Departments of 
 War and Na\y , and by niles relating to applica- 
 tions for pardon adopted by the Attorney Gen- 
 eral and approved by the President, the De- 
 partment of Justice will not consider applica- 
 tions for pardon for desertion or other offenses 
 against the military and naval laws. "\Mien 
 applications are received by the Department of 
 Justice, they are referred to the Secretary of the 
 Na^"y or the Secretary of War for consideration. 
 The Department of Justice does, however, issue 
 the formal warrants of pardon in Army and 
 Na^'y cases. (Letter of Department of Justice, 
 Sept. 6, 1904, file 7466-04.) 
 
 In practice in Navy cases, where the Secre- 
 tary of the Navy approves an application for 
 pardon and transmits it to the President with 
 favorable recommendation, if a pardon is to be 
 granted, the Secretary's letter is returned wdth 
 the President's approval indorsed thereon; the 
 papers are then transmitted to the Department 
 of Justice, where the formal warrant of pardon 
 is prepared for the President's signature; when 
 signed by the President, the warrant of pardon 
 is sent by the Department of Justice to the 
 Secretary of the Navy, to be transmitted to the 
 beneficiary, together with a blank form of 
 receipt and acceptance to be signed by the 
 recipient of the pardon and returned by him to 
 the Navy Department for file. (File 26282; 
 Kept, of Judge Advocate General to President's 
 Commission on Economy and Efficiency, Nov. 
 28, 1910, file 28067.) 
 
 Form of pardon. — "Nor is the form which 
 this pardon may assume at all important, or the 
 manner of its promulgation. AXTienever the 
 President, as an act of grace or clemency, inter- 
 venes to condone, in whole or in part, an offense 
 committed, or to prevent or remit the whole or a 
 portion of a punislmient ordered, or to commute 
 the whole or a portion thereof by the substitu- 
 tion of another less severe, or to remove disa- 
 bilities conseqiient upon con\'iction, and in 
 whatever form this is done, whether by a formal 
 pardon directed and delivered to the benefi- 
 ciary, by Executive order tlirough The Adj utant 
 General, or by a proclamation of amnesty to a 
 class of offenders, this is always and necessarily 
 an exercise of the pardoning power vested in 
 the President by the Constitution. In no other 
 way can the President interfere to condone an 
 offense, prevent or mitigate a pimishment 
 adjudged, or remove disabilities consequent 
 upon conviction." (27 Op. Atty. Gen., 178; but 
 see above, " Delivery and acceptance.") 
 
 The following communication, addressed by 
 The Adjutant General of the Army to the gov- 
 ernor of Kansas, was held to constitute a pardon 
 by the President: "By direction of the Presi- 
 dent of the United States, the disabilities re- 
 sulting from the dismissal of Albert H. Camp- 
 bell, formerly a captain in the Fourteenth 
 Regiment Kansas Vohmteer Cavalry, by sen- 
 tence of general court-martial promulgated in 
 General Orders, No. 54, May 30, 1865, Depart- 
 ment of Arkansas, are hereby removed, and he 
 may be recommissioned should your excellency 
 so desire." (27 Op. Atty. Gen., 178.) 
 
 ' ' That such pardon to be effective need not be 
 addressed to the beneficiary is abundantly 
 shown by the various proclamations of pardon 
 and amnesty granted by different Presidents to 
 large classes of offenders, and which have been 
 imiformly upheld as effective by the Supreme 
 Court. (See 1 Winthrop Mil. Law, 2d ed., 714- 
 715.) In such cases all persons embraced in the 
 proclamation are entitled to its benefits, 
 although they may never before have heard of 
 the amnesty . Indeed , the usual way of pardon- 
 ing militar>- offenders is by Executive order pro- 
 mulgated and entered in the records of the War 
 Department. (1 AVinthrop, 714.)" (27 Op. 
 Atty. Gen., 178.) 
 
 The Constitution of the United States con- 
 fers upon the President "power to grant par- 
 dons for offenses against the United States," 
 thus assimilating a pardon to an express grant 
 by deed, and the general constitutional pro- 
 vision is of this character. This was but an 
 adoption of the English rule that a pardon was 
 a grant under the great seal. Even an instru- 
 ment granting a pardon under the sign manual 
 of the King was not sufficient. All the courts 
 in this country, construing the constitutional 
 pro^^sion, hold that a pardon is an express act 
 of the executive or legislature evidenced by 
 something in the nature of a formal grant. As- 
 sent of the grantee is needed to make it com- 
 plete, a meeting of the minds of the parties 
 concerned being essential. (31 Op. Atty. Gen., 
 419.) 
 
 Effect of pardon. — "A pardon reaches both 
 the pimishment prescribed for the offense and 
 the guilt of the offender; and when the pardon is 
 full it releases the pimishment and blots out the 
 existence of the guilt, so that in the eye of the 
 law the offender is as innocent as if he had never 
 committed the offense. ■* * * There is only 
 one limitation to its operation; it does not re- 
 store offices forfeited or property or interests 
 vested in others in consequence of the convic- 
 tion of judgment." (Ex parte Garland, 4 
 Wall., 333. But see In re Spenser, 22 Fed. Cas. 
 No. 13234, noted below; 11 Op. Atty. Gen., 
 228; the latter holding that the acceptance of a 
 pardon is a confession of legal guilt. See also 
 Roberts i'. State, 160 N. Y., 217.) 
 
 Where error has been committed, it is more 
 benign to grant a new trial to an officer who has 
 been convicted by court-martial than to grant 
 liim a pardon, which would be "most humili- 
 ating to the prisoner." "Is there any mode by 
 which liis honor can be rescued from the impu- 
 tation thrown upon it by an improper sentence 
 
 87 
 
Art. II, Sec. 2. 
 
 Ft. 1. THE CONSTITUTION. 
 
 Pardoning Power. 
 
 of a first court, except that of ordering a sec- 
 ond?" (1 Op. Atty. Gen., 233; see note to 
 amcndmontp. Art. V.) 
 
 A pardon may involve "consequences of even 
 greater dissrracb than those from wliich it pur- 
 ports to retievo. Cirrumstances may be made 
 to bring innocence under the penahies of the 
 law. If so brought, escape by confession of 
 griilt implied in the acceptance of a pardon may 
 be rejected— preferring to be the victim of the 
 law rather than its acknowledged transgressor; 
 preferring death. even, to such certain ignominy. 
 * * * The latter [pardon] carries an imputa- 
 tion of guilt; acceptance a confession of it." 
 (Burdicki'.U.S.,236U.S.,79.) 
 
 "Moneys once in tlie Treasury can only be 
 withdrawn by an appropriation by law. How- 
 ever large, therefore, may be the power of pardon 
 possessed by the President, and however ex- 
 tended may be its application, there isthis limit 
 to it , as there is to all his powers — it can not touch 
 moneys in the Treasury of the United States, 
 except expressly authorized by act of Congress. 
 The Constitution places this restriction upon 
 the pardoning power. AMiere, however, prop- 
 erty condemned, or its proceeds, have not thiis 
 vested, but remain imder control of the Execu- 
 tive, or of officers subject to his orders, or are in 
 the custody of the jiidicial tribunals, the prop- 
 erty will be restored or its proceeds delivered to 
 the original owner upon hie full pardon." 
 (Knote-y.U.S.,95U. S.,149.) 
 
 "The test, then, is whether the proceeds of a 
 fine, penalty, or forfeit \ire has passed into the 
 Treasury of the United States. If noc, the 
 pardoning power of the President may act upon 
 It * * *." (23 Op. Atty. Gen., 360, 363; 
 Bee also 14 Op. Atty. Gen., 599; 16 Op. Atty. 
 Gen., 1; 80p. Atty. Gen., 281; 2 Op. Atty. Gen., 
 329; 10 Op. Atty. Gen., 452; Vanderslicev. U. S., 
 19Ct.Cls.,481.') 
 
 "The effect of the pardon is prospective 
 and not retrospective. It removes the 
 guilt and restores the party to a state of inno- 
 cence. But it does not change the past and 
 can not anniliilate the established fact that he 
 was guilty of the offense." (In re Spenser, 22 
 Fed. Cas. No. 13234.) 
 
 The President's pardon does not alter the fact 
 that the service of an enlisted man convicted of 
 desertion was not "honest and faithful" 
 within the meaning of statutes relating to the 
 Army. Congress has the right to prescribe 
 qualifications and conditions for enlisted men 
 and to forbid those not possessing such qualifi- 
 cations to enter the military ser\T.ce. (22 Op. 
 Atty. Gen. ,39.) 
 
 " A pardon can not change existing or accom- 
 plished facts, although it may remove or pre- 
 vent their consequences; ana in this case the 
 Eardon can not change the fact that this officer 
 as never been honorably discharged from the 
 Army." (27 Op. Atty. Gen., 178.) '"The act 
 is plain and unequivocal; it provides for a pen- 
 sion to those only who have been ' honorably 
 discharged ' from the Army or Navy. This 
 officer has not been so discharged, and is there- 
 fore not within the terms of the grant. ' ' (Same 
 case.) 
 
 The pardon of a convicted deserter from the 
 Navy blots out his offense and he may legally 
 
 be reenlisted, notwithstanding the provisions 
 of sections 1420 and 1624 (art. 19), Revised 
 Statutes, prohil)iting the enlistment of desert- 
 ers in the naval sers-ice. (26 Op. Atty. Gen., 
 617, overruled by 31 Op. Atty. Gen., 225, 
 noted below; see also 22 Op. Atty. Gen., 39, 
 above noted.) 
 
 Section 1441, Re^dsed Statutes, and the acts 
 of February 16, 1914 (38 Stat., 283, 290), and 
 August 29, 1916 (39 Stat., 589), are rules re- 
 lating to qualifications for office in the Navy, 
 and for membership in the Naval Reserve 
 Force, which do not impose a penalty as such 
 on individual offenders, and the incidental dis- 
 abilities which they may suffer by reason of 
 these statutes are not removed by a pardon. 
 Similarly, sections 1420 and 1624, article 19, 
 Revised Statutes, as amended by act of August 
 22, 1912 (37 Stat., 356), ai-e statutes relating to 
 the general organization and efficiency of the 
 Na^y, which affect only incidentally particular 
 classes of individuals, and are ob\dously not 
 intended as punishment for offenses; they place 
 deserters in the same category with minors, 
 insane persons, and intoxicated persons as not 
 qualified for the naval service; and a pardon 
 does not remove the disqualification attached 
 to the /acf of desertion and render the deserter 
 eligible for reenlistment in the naval service. 
 On the other hand, section 1998, RoAOsed Stat- 
 utes, as amended by the act of August 22, 1912 
 (37 Stat., 356), prescribes disabilities, not 
 merely incidental to qualifications for service 
 in the Navy, but in effect and by express 
 avowal constituting punishment of offenses, 
 which as such would of course be 'niped out 
 by an unconditional pardon. (31 Op. Atty. 
 Gen., 225, overruling 26 Op. Atty. Gen., 617, 
 noted above.) 
 
 By sections 4756, 4757, Revised Statutes, 
 benefits are conferred on persons formerly in the 
 naval service who have "not been discharged 
 for misconduct." The recipient of a pardon is 
 entitlecl to the benefits of these sections in the 
 same manner and with the same force as if he 
 had never been discharged for misconduct. 
 (File 5789-99, Sept. 2, 1899.) 
 
 A pardon for desertion operates from its date 
 to relieve from all further penalties and forfei- 
 tures consequent upon desertion, but a man is 
 not entitled to arrears of pension or to relief 
 covering the period during which he was not 
 in a pensionable status; that is, prior to date of 
 pardon. (File 2443-03.) 
 
 Congress has a constitutional right to pro- 
 hibit the oflicers of the Government from pay- 
 ing persons who encouraged rebellion, and they 
 can not consider such claims, although the 
 claimants may have received an Executive 
 pardon. (Hart v. U. S., 16 Ct. Cls., 484; 
 affirmed 118 U. S., 62; compare U. S. v. Klein, 
 13 Wall., 147.) 
 
 A pardon can not restore an officer to the 
 service after a sentence of dismissal has been 
 executed (Vanderslice v. U. S., 19 Ct. Cls., 
 481; 11 Op. Atty. Gen., 19); but it may re- 
 store an officer to his original position in his 
 grade after a sentence of loss of numbers (12 
 Op. Atty. Gen., 547); and prior to execution 
 of a sentence of dismissal the President may 
 mitigate it to suspension from rank and pay. 
 (4 Op. Atty. Gen., 433.) 
 
 88 
 
Power of Appointment. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. II, Sec. 2. 
 
 Where a convicted offender has been given 
 an unconditional pardon, the President can not 
 afterwards issue him a supplemental pardon 
 for the specific purpose of relieving him of dis- 
 abilities resulting from State laws. If such 
 disabilities were not removed by the pardon 
 already issued, they are a matter under the 
 control of the State and not of the Federal 
 pardoning power. (7 Op. Atty. Gen., 760.) 
 "As to the matter of incidental disabilities of 
 conviction for crime, it has seemed to me that 
 a pardon by the proper pardoning power of one 
 jurisdiction does not affect disabilities imposed 
 by another jurisdiction." (8 Op. Atty. Gen., 
 284.) 
 
 A pardon obtained by fraud is void and of no 
 effect. (11 Op. Atty. Gen., 227.) 
 
 A pardon issued to a deserter from the Navy 
 does not authorize the Navy Department to 
 remove the mark of desertion entered on its 
 records, the entry being one of fact, which is 
 not altered by the pardon. (File 26251- 
 1963:1, Aug. 17, 1910; compare file 1768-D, 
 1902, case of Ezekiel Downey.) 
 
 A person convicted of an offense against the 
 laws of the United States, which disfranchises 
 him as a citizen, can be restored to his rights 
 by a pardon issued before or after he has suf- 
 ered the other penalties incident to his con- 
 
 viction. (9 Op. Atty. Gen., 478; see also 14 
 Op. Atty. Gen., 124; compare 7 Op. Atty. 
 Gen., 760.) 
 
 "There are two general classes of punish- 
 ments for military offenses. First, those which 
 directly affect the person or property of the 
 offender, such as death, imprisonment, or dis- 
 missal; fines; the return or restoration of prop- 
 erty or money wrongfully held, and the like. 
 These are prescribed by law or established 
 usage, and are imposed in the sentence itself. 
 Second, certain disabilities, such as the depri- 
 vation of certain civil and political rights which 
 persons otherwise similarly situated may have 
 and enjoy — such as the rights of citizenship, 
 the right to vote or to hold ofhce, to be em- 
 ployed in the Government or to enlist or be 
 appointed in the Army, and the like. These 
 are prescribed by law or established usage, but 
 are not imposed by the sentence and are rather 
 consequences of the conviction. It is with 
 these that we have to do here. From these 
 considerations it is obvious that this communi- 
 cation * * * was necessarily an exercise 
 of the pardoning power and as such was effective 
 to the extent there expressed, namely, in the 
 removal of all disabilities consequent upon the 
 conviction of the officer." (27 Op. Atty. Gen,, 
 178.) 
 
 [Clause 2. Treaty making power; appointment of officers.] ^ He shall have 
 Power, by and with the Advice and Consent of the Senate, to make Treaties, 
 provided two-thirds of the Senators present concur; and he shall nominate, 
 and by and with the Advice and Consent of the Senate, shall appoint Ambas- 
 sadors, other public Ministers and Consuls, Judges of the Supreme Court, and 
 all other Officers of the United States, whose Appointments are not herein 
 otherwise provided for, and which shall be established by Law: but the Con- 
 gress may by Law vest the Appointment of such inferior Officers, as they think 
 proper, in the President alone, in the Courts of Law, or in the Heads of Depart- 
 ments. 
 
 I. 
 II. 
 
 III. 
 IV. 
 
 Officers of the United States. 
 Constitutional Power of Appoint- 
 ment. 
 Power of Congress. 
 Statutory Requirements and Qual- 
 ifications. 
 V. Power of Senate. 
 VI. What Constitutes Appointment. 
 VII. Pay and Oath of Officers. 
 VIII. Power of Removal. 
 IX. Right of Officers to Resign. 
 
 I. Officers of the United States. 
 
 Who are officers of the United States. — 
 "What is necessary to constitute a person an 
 officer of the United States in any of the various 
 branches of its service has been fully considered 
 by this coiu-t in United States v. Germaine (99 
 U._ S., 508). In that case it was distinctly 
 pointed out that under the Constitution of the 
 United States all its officers were appointed by 
 
 the President, by and with the consent of the 
 Senate, or by a court of law, or the head of a 
 department; and the heads of departments were 
 defined in that opinion to be what are now 
 called the members of the Cabinet. Unless 
 a person in the service of the Government, 
 therefore, holds his place by virtue of an ap- 
 pointment by the President, or of one of the 
 courts of justice or heads of departments author- 
 ized by law to make such an appointment, he 
 is not, strictly speaking, an officer of the United 
 States." (U. S. v. Mouat, 124 U. S., 303; 4 
 Comp. Dec, 696.) 
 
 "This provision of the Constitution divides 
 inferior officers into two classes, according to 
 the source from which the power of appointment 
 is derived " ; namely, officers appointed by the 
 President, by and with the advice and consent 
 of the Senate, in accordance with the duty 
 directly imposed on the President by the Con- 
 stitution itself; and officers otherwise appointed 
 in accordance with the direction of Congress, 
 (30 Op. Atty. Gen., 177.) 
 
 "It would be impossible to define, except 
 arbitrarily, the meaning of the words 'inferior 
 
 89 
 
Art. II, Sec. 2. 
 
 Pt.l. THE CONSTITUTION. Power of Appointment. 
 
 officers,' in their application to officers of the 
 different bruiuhos of the public service who 
 have no ofiuiul relation to each otlier. and it 
 would not be ea.-iy to se]^arate all tlie ollicers of 
 the tiovemnient into two classes and draw a 
 satisfactory line which would define the infe- 
 rior, in the sense in which it is claimed that 
 word is used, from those of the higher class, nor 
 is it necessary to attemjit to do either. In our 
 o])inion, the words as used in connection ^\•ith 
 the other language of the same clause, have a 
 
 {)lain, definite, and intclhgible meaning, capa- 
 )le of unmistakable application to effect the 
 pur])oses of that provision of the Constitution, 
 llaving s])ecifiea certain officers, imnisters, 
 consuls, and judges of the Supreme Oourt who 
 sliall be nominated by the President and ap- 
 pointed by and with the advice and consent 
 of the Senate in all cases, the Constitution 
 leaves it to Congress to vest in the President 
 alone, the courts of law, or the heads of depart- 
 ments the a])pointment of any officer inferior 
 or subordinate to them, respectively, whenever 
 Congress thinks proper so to do." (Collins v. 
 U. S., 14 Ct. Cls., 5G8.) 
 
 "The word inferior is not here used in that 
 vague, indefinite, and quite inaccurate sense 
 which has been suggested — the sense of petty or 
 unimportant; but it means subordinate or in- 
 ferior to those officers in whom respectively the 
 power of appointment may be vested — the Presi- 
 dent, the coui'ts of law, and the heads of 
 departments." (Collins -y. U.S., 14 Ct. Cls., 
 568; see also 23 Op. Atty. Gen., 574, 578, 579.) 
 
 ' ' Whenever, therefore, Congress thinks proper 
 to vest in the President alone, in a court of law, 
 or in the head of a department the appointment 
 of any of their respective subordinate officers, 
 other than those named in the clause under 
 consideration, or whose appointment is other- 
 wise pro\'ided for by the Constitution, it must 
 be held that such officers are inferior officers 
 within the meaning of the Constitution, whose 
 api)ointment in that manner Congress has the 
 power to authorize; and the act of Congress 
 must be respected and enforced by the execu- 
 tive officers of the Government." (Collins v. 
 U. S., 14 Ct. Cls., 568; see also U. S. v. Germaine, 
 99 U. S., 508.) 
 
 "An office is a public station or employment 
 conferred by the appointment of Government. 
 The term embraces the ideas of tenure, dura- 
 tion, emolument, and duties." (U. S. v. Hart- 
 well, 6 Wall., 385, holding that a clerk in the 
 office of an Assistant Treasurer of the United 
 States is a public officer within the meaning of 
 a penal statute. For other cases, see note to 
 act July 31, 1894, sec. 2, 28 Stat., 205.) 
 
 The clerks employed in the offices of the 
 several departments of the Government are 
 not liable to militia duty, being executive 
 officers of the Government of the United States, 
 under the terms of the statute exempting from 
 such duty the Vice President, the officers, 
 judicial and executive, of the Government of 
 the United States, the members of both houses 
 of Congi'ess and their respective officers, all 
 custom-house officers, with their clerks, all 
 post officers and stage drivers employed in the 
 care and conveyance of the mail, etc. (Ex 
 parte Smith, 2 Cranch, C. C, 693, 22 Fed. 
 
 Cas. No. 12967, cited with ai)proval in U. S. v. 
 Ilartweli, 6 Wall., 385, 393.) 
 
 A person may be an officer within the mean- 
 ing of statutory enactments, although not an 
 oliicer of the United States in the constitu- 
 tional sense. Thus, clerks to i)aymasters in the 
 Navy, although not appointed in any of the 
 methods provided for by the Constitution, 
 were held oflicers of the Navy witliin the mean- 
 ing of a statute pro\'iding for increased pay 
 according to length of service (U. S. v. Hendee, 
 124 U. S., 309, affirming 22 Ct. Cls., 134), but 
 at the same time were held not to be officers in 
 the constitutional sense (U. S. v. Mouat, 124 
 U. S., 303). Later, when the appointment of 
 these clerks was vested in the Secretary of the 
 Navy by regulations issued in accordance with 
 section 1547, Revised Statutes, it was held that 
 they thus became officers of the United States 
 in the constitutional sense, as well as in the 
 popular meaning of the term. (27 Op. Atty. 
 Gen., 157; but see Ashton v. U. S., 51 Ct. Cls., 
 65. Congress has now pro\ided for the ap- 
 pointment of pay clerks in the constitutional 
 manner; see act Mar. 3, 1915, 38 Stat., 942.) 
 Similarly, a midshipman at the Naval Acad- 
 emy, although appointed by the Secretary of 
 the Navy, "by direction of the President," was 
 held not to be an officer of the Na\^ within the 
 meaning of article 36 of the Articles for the 
 Government of the Navy (sec. 1624, R. S.), re- 
 stricting dismissals from the Navy (Weller v. 
 U. S., 41 Ct. Cls., 324); although held to be an 
 officer within the meaning of various other 
 statutes. (See sec. 1512, R. S. See further, 
 Perkins v. U. S., 20 Ct. Cls., 438, affirmed 116 
 U. S., 483; U. S. v. Moore, 95 U. S., 760; U. S. 
 V. Redgrave, 116 U. S., 474, and sec. 1, R. S.) 
 
 II. Constitutional Power of Appointment. 
 
 Who are to make appointments to 
 oflB.ce. — "When Congress creates an office, but 
 does not vest the power of appointment thereto 
 in any of the persons specified, then the Con- 
 stitution operates, proprio vigore [of its own 
 force], and immediately casts upon the Presi- 
 dent, by and with the advice and consent of 
 the Senate, the duty of appointing thereto." 
 (30 Op. Atty. Gen., 177. See also note to sec. 
 169, R. S.) 
 
 In the absence of an express enactment to 
 the contrary, the appointment of any officer of 
 the United States l:)elongs to the President and 
 Senate. (29 Op. Atty. Gen., 116, citing, 6 Op. 
 Atty. Gen., 1; 15 Op. Atty. Gen., 3, 449; 17 Op. 
 Atty. Gen., 532; 18 Op. Atty. Gen., 98, 298; 
 26 Op. Atty. Gen., 627.) 
 
 "The appointing power here designated in 
 the latter part of the section was no doubt 
 intended to be exercised by the department of 
 the Government to which the officer to be 
 appointed most appropriately ])elonged . ' ' (Ex 
 parte Hennen, 13 Pet., 258; Collins v. U. S., 14 
 Ct. Cls., 568, 575.) 
 
 Congress ' ' may authorize the President or the 
 head of the ^^'ar Department to appoint an 
 Army officer, because the officer to be appointed 
 is inferior to the one thus vested with the ap- 
 pointing power." (Collins t). U. S., 14 Ct. Cls., 
 568.) 
 
 90 
 
Po^wer of Appointment. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. II, Sec. 2. 
 
 "A statute which provides that ' the President 
 be, and he is hereby, authorized to reinstate 
 Maj. C, kite of the United States Army, and 
 to retire him in that grade, as of the date he 
 was previously mustered out, ' confers authority 
 on the President alone to reinstate the officer, 
 without the advice and consent of the Senate." 
 (Collins V. U. S., 14 Ct. Cls., 568, syllabus.) 
 
 "In Moore's case (95 U. S., 760) the Supreme 
 Court has gone much further than we now go, 
 or than this case requires, in upholding the 
 validity of an appointment made without the 
 advice and consent of the Senate. The statutes 
 provided that * * * all appointments in 
 the Medical Corps [of the Navy] should be 
 with the advice and consent of the Senate. 
 (Sec. 1369, R. S.) * * * Moore was an 
 assistant surgeon who had successfully passed 
 his examination for promotion and had been 
 notified by the Secretary of the Navy that the 
 report of the board of examiners was approved 
 by the department, and from that date he 
 would be regarded as a 'passed assistant siu*- 
 geon.' It was held by the Supreme Court that 
 ' the place of passed assistant surgeon is an office, 
 and the notification by the Secretary of the 
 Navy was a valid appointment to it. " ' (Collins 
 V. U. S., 14Ct. Cls.,568.) 
 
 An officer [deputy commissioner of fisheries] 
 appointed by the head of a department without 
 statutory authority was not legally appointed, 
 and his status is therefore that of a de facto 
 officer. (29 Op. Atty. Gen., 116.) 
 
 When the President is authorized by statute 
 to appoint certain officers of the Navy and 
 Marine Cor])s, the advice and consent of the 
 Senate is not required. "The appointments 
 provided for by this legislation are not such as 
 by the Constitution are required to be made in 
 any particular way. It was within the prov- 
 ince of Congress to prescribe by whom and how 
 these additional ofticers should be chosen, 
 appointed , and commissioned . Congress might 
 have directed that they should be appointed 
 by the President, by and with the advice and 
 consent of the Senate, but such was not the 
 method actually provided for. The provision 
 of the statute is that the President is authorized 
 to appoint. I see no ground whatever for hold- 
 ing that the advice and consent of the Senate 
 is requisite to a lawful appointment under this 
 legislation. An examination of kindred enact- 
 ments relating to appointments in the Na\'y as 
 well as appointments in the Army indicates that 
 Congress frequently discriminates between 
 appointments to be made by the President 
 alone and appointments to be made by the 
 President by and with the advice and consent 
 of the Senate." (22 Op. Atty. Gen., 82.) 
 
 "The statutes appear to be entirely silent 
 upon the subject as to who shall make the 
 appointments of midshipmen at the Naval 
 Academy, except that, if Members of Congress 
 fail to nominate, such vacancies shall be filled 
 by appointment of the Secretary of the Navy. 
 (Sec. 1514, R. S.) The appointment in this 
 case was made 'by direction of the Presi- 
 dent,' and we understand that this is and has 
 been the universal practice in the making of 
 appointments with the exception a])ove stated . ' ' 
 (Weller v. U. S., 41 Ct. Cls., 324, 336; see also 
 10 Op. Atty. Gen., 46.) 
 
 54641°— 22 7 91 
 
 The only question to be solved here is 
 whether there is provision for the appointment 
 of a secretary to the Admiral by some one 
 other than by the President, by and with the 
 advice and consent of the Senate. The ex- 
 pression of the statute is, that the Admiral 
 "shall be allowed"- a secretary. That on its 
 face indicates that the appointment is to be 
 personal to the Admiral and so suggests that 
 he is to make the selection. On account of this 
 and the provisions of the Navy Regulations 
 in force when the law was passed providing 
 for appointment of his secretary by the Admiral, 
 held, that api^ointment in this case was not 
 to be made with the advice and consent of the 
 Senate. (19 Op. Atty. Gen., 589.) 
 
 By section 169, Revised Statutes, Congress 
 has vested in the heads of departments the 
 appointment of clerks, laborers, and other 
 employees in their departments. (See note of 
 decisions under that section as to positions 
 included therein.) 
 
 The following are examples of statutes in 
 which Congress has in the past vested the 
 api^ointment of naval officers in the President 
 alone: Admiral of the Navy (act Mar. 2, 1899, 
 
 30 Stat., 995; act Mar. 3, 1899, 30 Stat., 1045); 
 warrant officers (sec. 1405, R. S.; act Mar. 
 4, 1913, 37 Stat., 891; etc.); ensigns, when ap- 
 pointed from warrant officers (act Mar. 3, 1901, 
 
 31 Stat., 1129); Commandant of the Marine 
 Corps (act June 6, 1874, 18 Stat., 58); second 
 lieutenants, Marine Corps (act Mar. 3, 1899, sec. 
 19, 30 Stat., 1008); Spanish War appointments 
 (act May 4, 1898, 30 Stat., 369). See also 23 
 Op. Atty. Gen., 574, 578; 23 Op. Atty. Gen. , 138. 
 
 Power of appointment limited, by Consti- 
 tution. — "Power of appointment under the 
 United States can not be communicated by 
 act of Congress to persons not named to that 
 end by the Constitution." (8 Op. Atty. 
 Gen., 41.) 
 
 "Congress has power to distribute at its 
 pleasure the appointment of inferior officers 
 between the President, courts of law, and heads 
 of departments, or to vest such appointments 
 exclusively in one or two of those depositories; 
 but it has not power to vest appointments 
 elsewhere directly or indirectly." (13 Op. 
 Atty. Gen., 516, 521.) 
 
 Appointments made by heads of bureaus 
 in accordance with statute are presumed to 
 be made with approval of the head of the de- 
 partment and are made by the head of a de- 
 partment within the meaning of the Constitu- 
 tion. (Price V. Abbott, 17 Fed. Rep., 506; 
 Frelinghuysen v. Baldwin, 12 Fed. Rep., 396; 
 Stanton v. Wilkeson, 22 Fed. Cas. No. 13299.) 
 
 "It was argued that the appointment of 
 Hatch was illegal because it was made by the 
 Secretary of the Treasury and should have 
 been made by the superintendent of immi- 
 gration. But the Constitution does not allow 
 Congress to vest the appointment of inferior 
 officers elsewhere than 'in the President alone, 
 in the courts of law, or in the heads of depart- 
 ments; ' the act of 1891 manifestly contemplates 
 and intends that the inspectors of immigra- 
 tion shall be appointed by the Secretary of 
 the Treasury; and appointments of such officers 
 by the superintendent of immigration could 
 be upheld only by presuming them to be made 
 
Art. II, Sec. 2. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Power of Appointment. 
 
 with the concurrence or ap])roval of tlie Secre- 
 tary of the Treiuiury, his ollicial head." (Elkin 
 D. U. S., 142 r. S.,G51.). 
 
 " Congress has at various times authorized 
 appointments independently of the President, 
 courts of law, or heads of clepartmenta in de- 
 partmental bureaus, in the customs service, 
 xn the internal-revenue service, in the land 
 office, and in some other branches of the civil 
 service. Upon this legislation it may be 
 observed: First, that in some of these cases, 
 euch as those of deputy marshals and deputy 
 clerks, the persons appointed are representa- 
 tives of the officers who appoint them and who 
 in some particulars are responsible for their 
 conduct; and perhaps it was considered by 
 Congress that the office was substantially in 
 the principal. Second, that it was no doubt 
 considered by Congress that some of the per- 
 sons whose appointments were thus pro\'ided 
 for were not ofiicers in the constitutional sense 
 of the term. IMany employments now uni- 
 versally held to be oflices were not evidently 
 euch at the outset, but with the growth of the 
 Government were raised to that rank. Thus 
 the force of these legislative precedents _ is 
 somewhat weakened . Yet it can not be denied 
 that some of them take for granted that Con- 
 gress is absolute in the matter of appointments. 
 Such, however, is not the constitutional rule." 
 (13 Op. Atty. Gen., 516, 521.) 
 
 ' ' Congress has no power whatever to vest the 
 appointment of any employee coming fairly 
 ■within the definition of an inferior officer of the 
 Government in any other public authority but 
 the President, the heads of departments, or the 
 judicial tribunals." (13 Op. Atty. Gen., 522; 
 4 Op. Atty. Gen., 164.) 
 
 'Where a customs officer is appointable by the 
 collector with the approbation of the Secretary 
 of the Treasurj'', this approbation is really the 
 appointment, or else the appointment "is null 
 and void under the Constitution." (4 Op. 
 Atty. Gen., 164; 13 Op. Atty. Gen., 522.) 
 
 "So the Supreme Court has held that a clerk 
 appointed by the Assistant Treasurer ^\•ith the 
 approbation of the Secretary of the Treasury, 
 was 'appointed by the head of the department 
 ■ndthin the meaning of the constitutional pro- 
 vision on the subject of the appointing power.' 
 (U. S. V. Hartwell, 6 Wall., 393, 394.) _ Attorney 
 General Speed thought that a provision in the 
 internal revenue act of ]\Iarch 3, 1865, gi'ving to 
 assessors the appointment of assistant assessors 
 (13 Stat., 469), was 'clearly unconstitutional' 
 (11 Op. Atty. Gen., 212), and such appears to 
 have been the opinion of Congress itself, when 
 ita attention was called to the subject, for the 
 act of January 15, ]8G6, repealed that provision 
 and gave the appointment of assistant assessors 
 to the Secretary of the Treasury." (13 Op. 
 Atty. Gen., 516.) 
 
 A statute pro^dding for the a])pointment of 
 certain officers by the commandant of the 
 Marine Corj)8, "being in derogation of the 
 Constitution, is to be literally construed and 
 on its terms." Accordingly, held that said 
 statute contemplated merely occasional and 
 transitory ajtpointments under exceptional 
 conditions. (2 Op. Atty. Gen., 77.) 
 
 The power of ai)pointment, being discre- 
 tionary, can not be delegated by the head of 
 the dei)artment, though he may inquire, inves- 
 tigate, and determine bytheaid of subordinates; 
 hut the final determination must be his act, 
 and not theirs. (21 pp. Atty. Geri., 355.) 
 
 The power of appointment, especially where 
 fixed by statute in the head of the department, 
 can not be delegated to subordinates mthout 
 authority of Congress. (29 Op. Atty. Gen., 
 273.) 
 
 III. Power op Congress. 
 
 Congress may refuse appropriations. — 
 "The power of a])])ointmeut [of an agent or 
 commissioner to make certain investigations] 
 results from the obligation of the executive 
 department of the Government ' to take care 
 that the laws be faithfully executed' ; an obliga- 
 tion imposed by the Constitution [Art. II, sec. 
 3 1 and from the authority of which no mere act 
 of the legislature can occasion a dis])ensation. 
 Congress may, however, indirectly limit the 
 exercise of this power by refusing appropria- 
 tions to sustain it, and thus paralyze a function 
 which it is not competent to destroy." (4 Op. 
 Atty. Gen., 248; see also note to Art. II, sec. 3.) 
 
 Congress may change the rank or pay of 
 an officer of the Army, or transfer him to the 
 retired list, but it "can not appoint him to a 
 new and different office, because the Constitu- 
 tion vests the appointing power in the President 
 with the advice of the Senate, or iu certain 
 cases, in the President alone, the heads of the 
 executive departments, or the courts of law." 
 ("Wood V. U. S., 15 Ct. Cls., 151; affirmed 107 
 tr. S.,414; see also Moser v. U. S., 42 Ct. Cls., 
 86.) 
 
 The rank of officers of the Navy is not to be 
 changed except by and with the advice and 
 consent of the Senate. (Act June 17, 1878, 20 
 Stat., 144, amending sec. 1506, R. S.) 
 
 Congress can not control appointing 
 power. — "I entertain no doubt that the power 
 of appointment of officers, the duty to appoint 
 whom devolves dii-ectly on the President and 
 Senate by virtue of the Constitution itself, is 
 one involving a discretion not entirely to be 
 controlled by Congress. This power is from a 
 source above Congress, namely, the Constitu- 
 tion, and can not be destroyed by the inferior 
 power." (30 Op. Atty. Gen., 177, in which it 
 was also stated: "In this opinion it is only 
 necessary to consider ai^pointments the duty 
 to make which is directly imposed on the 
 President by the Constitution itself; no dis- 
 cussion of the other class [where Congress 
 designates the person or i)ersons who are to 
 appoint to a given office created by it] will be 
 entered upon. That a difference exists be- 
 tween the two is intimated in U. S. v. Perkins, 
 116 U. S., 483, 485.") 
 
 "Nor does the fact that Congress is given 
 power by the Constitution 'to make rules for 
 the government and regulation of the land and 
 naval forces,' enable it to control the President's 
 discretion in respect of those appointments 
 which the same supreme law requires him to 
 make. The general power to regulate such 
 forces can not be taken to nullify the specific 
 
 92 
 
Power of Appointment. 
 
 Pt.l. THE CONSTITUTION. 
 
 Art. II, Sec. 2, 
 
 mandate to the President to appoint to oflices 
 where Con2;ress has made no other pro\dsion." 
 (30 Op. Atty. Gen., 177; 29 Op. Atty. Gen., 254.) 
 
 Conceding that Congress has power, under its 
 constitutional authority to make rules for the 
 government and regulation of the land and 
 naval forces, to regulate appointments to oflices 
 in the Army and NaA^, such power can not 
 be earned to the designation of particular 
 individuals to fdl such oflices, without imposing 
 an unconstitutional restriction upon the 
 appointing power. (18 Op. Atty. Gen., 18; 
 see also 13 Op. Atty. Gen., 516, holding that, 
 "unless controlled by authority, I should not 
 take this power to embrace the subject of 
 appointments"; and see 8 Op. Atty. Gen., 231, 
 29 Op. Atty. Gen., 254, to the same effect.) 
 
 "It may now be considered to be definitely 
 settled by the practice of the Government, that 
 the regulation and government of the Army in- 
 clude, as being properly within their scope, the 
 regulation of appointment and promotion of 
 officers therein. Hence, as the Constitution 
 expressly confers upon Congress authority 'to 
 make rules for the government and regulation 
 of ' the Army, that body may impose such re- 
 strictions and limitations upon the appointing 
 power as it deems proper in regard to promo- 
 tions or appointments to any and all vacancies 
 in the Ajmy, pro\T.ded the restrictions and 
 limitations be not incompatible with the exer- 
 cise of the appointing power." (14 Op. Atty. 
 Gen., 164.) 
 
 "A promotion in the Army is an appoint- 
 ment to a higher office therein. The custom, 
 so far as I am aware, has always been to nomi- 
 nate the promoted officer to the Senate and 
 subsequently to appoint and commission him 
 anew." (30 Op. Atty. Gen., 177.) 
 
 Promotion by seniority is provided for in 
 the Army by section 1257, Revised Statutes, 
 which is generally similar to section 1458, Re- 
 vised Statutes, requiring that in the Navy "the 
 next officer in rank shall be promoted to the 
 I)lace of a retired officer, according to the estab- 
 lished rules of the service ; and the same rule of 
 promotion shall be applied successively to the 
 vacancies consequent upon the retirement of 
 an officer." Also, by act of October 1, 1890 (26 
 Stat., 562, sec. 3), it is provided that "if any 
 officer [of the Army] fails to pass a satisfactory 
 examination and is reported unfit for promotion, 
 the officer next below him in rank, having 
 passed said examination, shall receive the pro- 
 motion;" and by section 1480, Revised Statutes, 
 pro\'ision is made for promotion of staff officers 
 of the Navy by seniority. (As to constitu- 
 tionality of these statutes, see notes to sees. 
 1458 and 1480, R. S. By amendments to sees. 
 1458 and 1480, R. S., promotion by selec- 
 tion to certain grades in the Navy is pro- 
 vided for.) 
 
 "I do not think * * * that the act of 
 October 1, 1890, makes it obligatory upon the 
 President to promote the senior officer in the 
 grade of major when a vacancy exists in the 
 grade of lieutenant-colonel in the Quarter- 
 master Corjis, if in his opinion the record of the 
 officer has been such as to indicate that he is 
 disqualified for promotion." (30 Op. Atty. 
 Gen., 177._ The Attorney - General expressly 
 limited this opinion to the cases of officers ap- 
 
 pointed by the President with the concurrence 
 of the Senate, under direct authority of the 
 Constitution. See also Ray v. Garrison, 42 
 App. D. C, 34, and 29 Op. Atty. Gen., 254. 
 
 "Respecting promotions in the Army, I have 
 been unable, after careful examination, to find 
 a single instance where the power of Congress 
 to prescribe the rule therefor has been even 
 doubted." (14 0p. Atty. Gen., 164, Jan. 9, 1873.) 
 
 In view of section 1480, Revised Statutes, as 
 amended by act of February 27, 1877, promotions 
 of staff officers of the Navy should be made by 
 seniority; accordingly, the claim of an assistant 
 surgeon, who has passed the necessary examina- 
 tions, to be promoted according to seniority, is 
 well founded. (17 Op. Atty. Gen., 48.) 
 
 "The rules which existed at the date of the 
 act of 1866 concerning the subject of appoint- 
 ment and promotion in the Army [including 
 provisions for promotion by seniority] became, 
 as it were, fixed; and ha\'ing the force of law 
 they must be taken to control the appointing 
 power in regard to that subject until Congress 
 shall othemnise direct." (14 Op. Atty. Gen., 
 164. The act mentioned provided that the 
 existing Army Regulations should "remain in 
 force" until future action on the part of Con- 
 gress.) 
 
 "In filling original vaaincies or offices in the 
 Army newly created, the opinion was advanced 
 by President Monroe, in a message to the Senate 
 dated April 12, 1822, that 'Congress had no 
 right under the Constitution to impose any re- 
 straint bv law on the power granted to the 
 President, so as to prevent his making a free 
 selection of proper persons for these offices from 
 the whole body of his fellow-citizens.' The 
 Senate, however, disagreed vnth. that opinion, 
 maintaining that, as the Constitution conferred 
 upon Congress power to 'make rules for the 
 government and regulation of the Army, that 
 body had a right to make any which it thought 
 would benefit the public service and to fix the 
 rule both as to promotions and appointments 
 in the Army." (14 Op. Atty. Gen., 164; but 
 see 29 Op. Atty. Gen., 254.) 
 
 For other cases, see notes to sections 1458 
 and 1480, Revised Statutes. 
 
 Congress can not designate appointee. — 
 A bill providing that ''the President be, and 
 he is hereby, authorized to nominate and by 
 and with the advice and consent of the Senate 
 to appoint " a designated person to the position 
 of colonel in the Army, is beyond the power of 
 Congress and should not be approved by the 
 President for the following reasons: First. If 
 the bill be \iewed as making it imperative upon 
 the President to appoint, Congress can not im- 
 pose such requirement and thus virtually as- 
 sume a power (that of making an appointment 
 to office) which does not constitutionally belong 
 to it; and if it be regarded as advisory only, it 
 is without the essential element of a law, and 
 Congress can enact nothing but that which is to 
 have full vigor and effect of a law. Second. 
 The authority of Congress to make rules for the 
 government and regulation of the land and 
 naval forces, and ' ' to make all laws which shall 
 be necessary and proper for carrying into execu- 
 tion the foregoing powders," can not be carried 
 to the designation by law of a particular indi- 
 vidual to fill a military office, ■without conflict- 
 
 93 
 
Art. II, Sec. 2. 
 
 Ft.l. THE CONSTITUTION. Power of Appointment. 
 
 ing ^^•ith the power of app(nnt incut expressly 
 given the President. Third. By this bill Con- 
 gress in effect creates an ollice only n]ion con- 
 dition tliat it is to he filled by a particular 
 individual named. If this principle were 
 adopted generally in the creation of offices, it 
 woidd obviously result in constraining the 
 appointing power to accept the co^dition im- 
 posed and fill the offices udth the indi^dd^lals 
 designated by Congress, thus frustrating the 
 design of the Constitution, which is that officers 
 must be alone selected according to the judg- 
 ment and will of the person and body in whom 
 the powers of nominating, ad\'ising, and con- 
 senting, and ap])ointing are vested. "Regard- 
 ing the bill as imposing, or attempting to im- 
 pose, upon the President a duty to appoint the 
 person designated therein, it is without any 
 support in fhe Constitution. It is an assump- 
 tion of an implied power which is not based 
 upon any express power, and clearly invades 
 the constitutional rights of the President." 
 (18 Op. Atty. Gen., 18. See also U. S. y. Fer- 
 reira, 13 How., 40, holding unconstitutional a 
 law which directed certain Federal judges to 
 act as commissioners for adjudication of claims: 
 "If they are to be regarded as officers, holding 
 offices under the Government, the power of 
 appointment is in the President, by and with 
 the advice and consent of the Senate, and Con- 
 gress could not by law designate the persons to 
 fill these offices." And see note to Art. I, sec. 7, 
 clause 2.) 
 
 "It has been alleged, I think, without suffi- 
 cient cause, that this clause is unconstitutional 
 because it nas created a new office and has ap- 
 pointed Capt. Meigs to perform its duties. If 
 it had done this, it woidd have been a clear 
 question, because Congress have no right to ap- 
 point to any office, this being specially conferred 
 upon the President and Senate. It is evident 
 that Congress intended nothing more by this 
 clause than to express a decided opinion that 
 Capt. Meigs should be continued in the employ- 
 ment to wMch he had been previously assigned 
 by competent authority." (ilessages and Papers 
 of the Presidents, vol. 5, p. 597. See further, as 
 to this case, note to Art. II, sec. 2, clause 1, 
 "Powers of Congress and of the President.") 
 
 Restoration of dismissed oflicers. — 
 "While affirming in the strongest terms its opin- 
 ion of the general inexpediency of restoring dis- 
 missed officers, the department also relies for the 
 protection of the service upon the unconstitu- 
 tionality of legislation for such purposes, as set 
 forth in the message of July 2, 1884, returning, 
 without executive approval, a bill contem- 
 plating such action. (Annual Report Sec. 
 Nav., 1884, p. 42; see note to Art. I, sec. 7, 
 clause 2, for message cited; see also 17 Op. 
 Atty. Gen., 297.) 
 
 "No more powerful influence for the demoral- 
 ization of the naval service is to be found than 
 that which results from the restoration of officers 
 dismissed for drunkenness or other misconduct, 
 or for demonstrated incapacity. Cases of 
 restoration which have occurred in the past 
 would hardly have been possible but for a 
 lenient spirit in the service, which, although 
 it may proceed from kindly motives, indicates 
 an indifference on the part of officers them- 
 selves concerning the tone of the Navy, and a 
 
 disregard of their imperative duty to contribute 
 by evory means in their power to the main- 
 tenance of a high standard of professional char- 
 acter. PubUc opinion should not only sternly 
 condemn aU officers who are guilty of such mis- 
 conduct as to disqualify them from service on 
 the active liat of the Navy, but also those who, 
 from whatever cause, lend themselves to efforts 
 for the restoration of worthless and ejected 
 membersof their prof es.sion." (Ann. Rept.Sec. 
 Nav., 1884, p. 42.) 
 
 Additional duties imposed on officer. — 
 "It is pointed to as invalidating the act that 
 while Congress may create an office it can not 
 appoint the officer. As, however, the two per- 
 sons whose eUgibility is questioned were at the 
 time of the passage of the act and of their action 
 under it already officers of the United States 
 who had been heretofore appointed by the 
 President and confirmed by the Senate, we do 
 not think that because additional duties ger- 
 mane to the offices already held by them were 
 devolved upon them by the act it was necessary 
 that they should be again appointed by the 
 President and confirmed by the Senate. It can 
 not be doubted, and it has frequently been the 
 case, that Congress may increase the power and 
 duty of an existing office without thereby ren- 
 dering it necessary that the incumbent should 
 be again nominated and appointed." (Shoe- 
 maker V. U. S., 147 U. S., 282. In this connec- 
 tion see sees. 255 and 1550, R. S., concerning the 
 designation of officers as disbursing agents.) 
 
 A\Tiile Congress can not appoint to office, it 
 may authorize a particular person or official to 
 perform certain acts. (Kentucky v. Dennison, 
 24 How., 66, holding that Congress might 
 authorize but not compel State officers to per- 
 form certain duties with reference to the inter- 
 state extradition of fugitives from justice; see 
 also act Feb. 16, 1909, sec. 15, 35 Stat., 622, 
 authorizing arrest of deserters from the Navy by 
 State officers.) 
 
 IV. Statutory Requirements and Quaxi- 
 
 nCATIONS. 
 
 Competitive examinations for appoint- 
 raent. — "A rule, whether prescribed by Con- 
 gress or by the President in pursuance of au- 
 thority given by Congress, that a vacant civil 
 office must be given to the person who is found 
 to stand foremost in a competitive examina- 
 tion, in effect makes the judges in that exam- 
 ination the appointing power to that office and 
 thus contravenes the constitutional provisions 
 on the subjectof appointments. * * * Viewing 
 the appointing power conferred in the Consti- 
 tution as a substantial, and not merely a 
 nominal function, I can not but believe that 
 the judgment and will of the constitutional 
 depository of that power should be exercised in 
 every appointment. The power was lodged 
 where it is because the makers of the Constitu- 
 tion, after careful consideration, thought that 
 in no other depositories of it could the j udgment 
 and the will to make proper appointments so 
 certainly be found. * * * If Congress can com- 
 pel the President to nominate a person selected 
 by others, it can compel the Senate to advise 
 and consent to the nomination. * * * Advice 
 and consent imply an exercise of judgment and 
 
 94 
 
Power of Appointment. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. II, Sec. 2. 
 
 will. So does nomination. So does appoint- 
 ment. There is this difference, that the judg- 
 ment and will of the Senate can regard only 
 the person proposed by the President, while 
 there is no similar constitutional limitation 
 upon his judgment and will. But there is no 
 right in Congress to constrain either to adopt 
 the judgment and will of others. Such con- 
 straint frustrates the constitutional design, 
 that the judgment of the Senate shall revise 
 the judgment of the President, and that the 
 judgment of both shall concur in filling the 
 office." (13 Op. Atty. Gen., 516.) 
 
 Advisory board. — "The appointing power 
 may avail itself of the judgment of others as 
 one means of information. For want of per- 
 sonal knowledge of candidates, it has habit- 
 ually done so from the foundation of the Govern- 
 ment. But this has been done in its discretion. 
 I see no constitutional objection to an examin- 
 ing board rendering no imperative judgments, 
 but only aiding the appointing power with 
 information. A legal obligation to follow the 
 judgment of such a board is inconsistent with 
 the constitutional independence of the appoint- 
 ing power." (13 Op. Atty. Gen., 516.) 
 
 Discretion of appointing power. — The 
 argument has been made that the unquestioned 
 right of Congress to create ofiices implies a 
 right to prescribe qualification for them. This 
 is admitted. But this right to prescribe quali- 
 fications is limited by the necessity of leaving 
 scope for the judgment and will of the person 
 or body in whom the constitution vests the 
 power of appointment. (13 Op. Atty. Gen., 
 516.) 
 
 ' ' It has been suggested that the appointments 
 now vested in the coiuls and heads of depart- 
 ments could be trangfeiTed by Congress to the 
 President, and that he could appoint according 
 to the result of a competitive test, certified by 
 an examining board. To this mode of selection, 
 if discretionary with the President, there is no 
 constitutional objection, and the same mode, 
 under a similar condition, could be used by the 
 \'arious appointing powers under present laws; 
 it being always understood that the appointing 
 power resorts to this test as a way of finding out 
 the fittest person for the vacant office, and is 
 not bound to abide by it if satisfied that the 
 appointment of another would best serve the 
 public interests. In short, the test of a com- 
 petitive examination may be resorted to in 
 order to inform the conscience of the appoint- 
 ing power, but can not be made legally con- 
 clusive upon that power against its own judg- 
 ment and will." (13 Op. Atty. Gen., 516.) 
 
 Unconstitutional precedents. — "The leg- 
 islation of the country from an early period has 
 been supposed to authorize a different constitu- 
 tional view from that which is herein expressed 
 [see preceding paragraphs]. * * * But 
 when a congressional construction is incon- 
 sistent with the plain meaning of the Constitu- 
 tion, aa ascertained by authoritative canons, 
 that meaning can not be overruled by such 
 construction, how often soever repeated. 
 * * * It more concerns us to ascertain what 
 is the constitutional rule than to learn whether 
 the rule has always been observed. Nineteen 
 violations of the Constitution do not justify 
 a twentieth. The present question, in its 
 
 essence, is whether the appointing power be- 
 longs to Congress or to those named in the Con- 
 stitution as the depositories of that power; for 
 if Congress can ordain that an office shall be 
 filled by the person whom the examiners 
 pronounce the fittest, it can ordain that the 
 office shall be filled by the person whom 
 Congress judges the fittest, and may directly 
 appoint its favorite. * * * An enactment 
 that the President shall appoint to a certain 
 office the person adjudged by the examiners 
 to be the fittest is not different, in constitu- 
 tional principle, from an enactment that he 
 shall appoint John Doe to that office. In 
 neither case are his judgment and will called 
 into exercise." (13 Op. Atty. Gen., 516.) 
 
 Qualifications in general. — "Although the 
 appointing power alone can designate an indi- 
 vidual for an office, either Congress, by direct 
 legislation, or the President, by authority de- 
 rived from Congress, can prescribe qualifica- 
 tions and require that the designation shall be 
 made out of a class of persons ascertained by 
 proper tests to have those qualifications; and it 
 is not necessary that the judges in the tests 
 should be chosen by the appointing power. 
 Attorney General Legare has given an opinion 
 ujion a question similar in principle. Dis- 
 cussing the subject of appointment of inspectors 
 of customs by the Secretary of the Treasury, he 
 considers that it would 'be a fair constitutional 
 exercise of the power of Congress to require that 
 the Secretary should make an appointment out 
 of a certain number of nominees proposed by a 
 collector.'" (13 Op. Attv. Gen., 516, citing 
 4 Op. Atty. Gen., 164; see also, 26 Op. Atty. 
 Gen., 502; 25 Op. Atty. Gen., 341.) 
 
 "It has been argued that a right in Congress 
 to limit in the least the field of selection implies 
 a right to caiTy on the controlling process to the 
 designation of a particular individual. But I 
 do not think this a fair conclusion. Congress 
 could require that officers shall be of American 
 citizenship or of a certain age, that judges 
 should be of the legal profession and of a certain 
 standing in the profession, and still leaA'e room 
 to the appointing power for the exercise of its 
 own judgment and will; and I am not prepared 
 to affirm that to go further and require that the 
 selection shall be made from persons found by 
 an examining board to be qualified in such 
 particulars as diligence, scholarship, integrity, 
 good manners, and attachment to the Govern- 
 ment would impose an unconstitutional limita- 
 tion on the appointing power. It would still 
 have a reasonable scope for its own judgment 
 and will. But it may be asked, At what point 
 must the controlling process stop? I confess 
 my inability to answer. But the difficulty 
 between dra%ving a line between such limita- 
 tions as are, and such as are not, allowed by the 
 Constitution, is not proof that both classes do 
 not exist. In constitutional and legal inquiries 
 right or wrong is often a question of degree. Yet 
 it is impossible to tell precisely where in the 
 scale right ceases and wrong begins. * * * 
 In the matter now in question, it is not suppos- 
 able that Congress or the President would re- 
 quire of candidates for office qualifications 
 unattainable by a sufficient number to afford 
 ample room for choice." (13 Op. Atty. Gen., 
 516.) 
 
 95 
 
Art. II, Sec. 2. 
 
 Pt. 1. THE CONSTITUTION. Power of Appointment. 
 
 A statute prescribing the qualifications neces- 
 sary for appointment as an ofiit-er of the Navy, 
 "being in derogation of the appointing power 
 phould bo strictly construed and not extended 
 by implication to include anything wliich does 
 not clearh' come within the nifaning of the 
 languairc used." CFile 8(522-2, Feb. 10. lOOS.) 
 
 Nomination of inelig^ible. — The President 
 is not authorized to nominate for oflice a person 
 ineligible under Article I, section 6, clause 2, 
 and such a nomination, although confirmed by 
 the Senate, can not be made tlie basis of an 
 appointment to the nominee, even when his 
 disqualification ceases. (170p. Atty.Gen.,522.) 
 
 Appointment of ineligible. — The qualifica- 
 tions of a candidate are presumed to have been 
 ascertained and found satisfactory previous to 
 his appointment to oflice; and a subsequent 
 administration can not, in the absence of fraud, 
 deprive the incumbent of his office, although 
 evidence should be produced that he did not 
 possess the statiitorv qualifications for appoint- 
 ment. (28 0p. Atty. Gen., ISO.) 
 
 " The law presumes that persons acting in a 
 public capacity have been duly appointed, 
 and their acts as de facto officers have in the 
 interest of the public been upheld, thoush in- 
 valid as to them. (Ball v. U. S., 140 U. S., 
 118, 129; McDowell v. U. S., 159 ib. 596, and 
 authorities therein cited.)" (Northrupt). U. S., 
 45 Ct. Cls., 50.) 
 
 V. Power of Senate, 
 
 "The Senate can not originate an ap- 
 pointment; its constitutional action is con- 
 fined to a simple affirmation or rejection of the 
 President's nominations; and such nominations 
 fail whenever it disagrees to them. The Senate 
 may suggest conditions and limitations to the 
 President, but can not vary those submitted by 
 him; for no appointment can be made except 
 on his nomination, agreed to without quaUfica- 
 tion or alteration. In the case of John R. Coxe, 
 jr., nominated for lieutenant in the Navy 
 from date, and confirmed A\'ith the qualification 
 that he shall take rank next after Lieut. 
 Elisha Peck, a commission can not properly 
 issue." (3 Op. Attv. Gen., 188; see also 4 Op. 
 Atty. Gen., 218.) 
 
 "The harmony of the two subordinate branches, 
 the independence of the President, the just 
 weight of the Senate, and the useful operation 
 of the power itself, \\'ill no doubt be best secured 
 by confining each branch to its peculiar func- 
 tion and not allowing either to deviate from the 
 order of procedure prescribed by the Constitu- 
 tion. " (3 Op. Atty. Gen., 188.) 
 
 The confirmation of an officer nominated for 
 promotion may be made as well by the con- 
 firmation of his successor as in any otlier way 
 provided it shows the assent of the Senate to 
 such promotion. (23 Op. Atty. Gen., 30). 
 
 VI. What Constitutes Appointment. 
 
 "To constitute an appointment under 
 this article, it is necessary, first, that the Presi- 
 dent should nominate the person proposed to be 
 appointed; second, that the Senate should 
 adATse and consent that the nominee should be 
 
 appointed; and, third, that in pursuance of such 
 nomination and such advice and consent the 
 appointment should be actually made." (4 
 Op. Atty. Gen.. 218.) 
 
 The Constitution seems to contemplate 
 thi'ee distinct operations: First, the nomi- 
 nation. This is the sole act of the President 
 and is completely voluntary. Second, the 
 appointment. This is also the act of the Presi- 
 dent, and is also a voluntary act, though it can 
 only be performed by and with the advice and 
 consent of the Senate. Third, the commission. 
 To grant a commission to a person appointed 
 might, perhaps, be deemed a duty enjoined by 
 the Constitution. " lie shall," says that instru- 
 ment, "commission all the oflicers of the 
 United States." The acta of appointing the 
 officer and commissioning the person appointed 
 can scarcely be considered as one and the same, 
 since the power to perform them is given in two 
 separate and distinct sections of the Constitu- 
 tion. The appointment being the sole act of 
 the President must be completely evidenced 
 when it is shown that he has done everything 
 to be performed by him. Should the commis- 
 sion, instead of being evidence of an appoint- 
 ment, even be considered as constituting the 
 appointment itself, still it would be made when 
 the last act to be done by the President was per- 
 formed, or, at furtherest, when the commission 
 was complete. The last act to be done by the 
 President is the signature of the commission. 
 He has then acted on the advice and consent of 
 the Senate to his own nomination. The time 
 for deliberation has then passed. He has 
 decided. His judgment on the advice and 
 consent of the Senate concurring with his nomi- 
 nation has been made, and the officer appointed. 
 This appointment is evidenced by an open, 
 unequivocal act; and being the last act required 
 from the person making it, necessarily excludes 
 the idea of its being, so far as respects the ap- 
 pointment, an inchoate and incomplete trans- 
 action. (Marbury v. Madison, 1 Cranch, 137.) 
 
 The appointment is the sole act of the ap- 
 pointing power; the acceptance is the sole act of 
 the officer, and is, in plain common sense, pos- 
 terior to the appointment. As he may resign, 
 60 he may refuse to accept; but neither the one 
 nor tlie other is capable of rendering the ap- 
 pointment a nonentity. (Marbury v. Madison, 
 1 Cranch, 137.) 
 
 Acceptance is not necessary to render 
 the appointment complete; accordingly 
 where a candidate was not above the maximum 
 age for appointment when confirmed by the 
 Senate, the statutory requirement was fulfilled, 
 and he can legally be commissioned and accept 
 the appointment after passing said age. (File 
 8622-2, Feb. 10, 1908.) 
 
 Acceptance is necessary to vest the office in 
 the appointee, and a formal acceptance is the 
 evidence wliich in the public ser\ice generally 
 it has been customary to require. (12 Op. Atty. 
 Gen., 229.) But where a former officer of the 
 Army asked the President in writing to rein- 
 state him, under an act of Congress, and the 
 President did so, no further formal acceptance 
 was necessary. (Collins v. U. S., 15 Ct. Cls., 
 31.) Execution of the oath of office may be re- 
 garded as an acceptance of the appointment. 
 
 96 
 
Removal of Oflicers. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. II, Sec. 2. 
 
 (8 Comp. Dec, 521; 19 Op. Atty. Gen., 284.) 
 An officer need not formally accept a promo- 
 tion. Where he died before so doing accept- 
 ance is conclusively presumed. (12 Op. Atty. 
 Gen., 229.) 
 
 Date of appointment. — An appointment 
 made to take effect at a prior date is inopera- 
 tive prior to the date on which it was actually 
 made and accepted. (8 Comp. Dec, 521; 20 
 Comp. Dec, 214, citing Morey v. U. S., 35 Ct. 
 Cls., 603, Jackson v. U. S., 42 Ct. Cls., 39, 17 
 Comp. Dec, 452. But see act Mar. 4, 1913, 
 37 Stat., 892, as to pay of officers of the Navy 
 on promotion.) 
 
 VII. Pay and Oath of Officers. 
 
 Pay of ofO-cers. — With some exceptions, 
 Congress may at any time make altera- 
 tions of the salaries of public officers, to take 
 effect from the passage of the act. The 
 only contract which arises upon a statute estab- 
 lishing a salary is to pay the incimibent of the 
 office that salary while the law remains in force 
 and unchanged. When the statute is repealed, 
 superseded, or amended so as to alter the amount 
 of the salary for the time being, the contract 
 from that time forward is correspondingly 
 changed. (Fisher v. U. S., 15 Ct. Cls., 329, 
 citing Patten's Case, 7 Ct. Cls., 362; Butler v. 
 Penn, 10 How., 402; Territory i;. Pyle, 1 Oreg., 
 151; Koontz v. Franklin, 76 Penn., 156.) The 
 constitutional exceptions and limitations are 
 that the compensation of the President shall 
 neither be increased nor diminished during the 
 period for which he shall have been elected 
 (Art. II, sec. 1), and that the judges, both of the 
 Supreme and inferior comls, shall receive for 
 their services a compensation which shall not 
 be diminished during their continuance in 
 office. (Art. Ill, sec. 1.) (Fisher v. U. S., 15 
 Ct. Cls., 329. See also note to sec. 167, R. S.) 
 
 To entitle an officer to recover pay claimed 
 but not received, he must prove nis case, as 
 the compensation annexed to a public office is 
 incident to the title to the office and not to the 
 exercise of the functions of such office. (Nor- 
 thrup V. U. S., 45 Ct. Cls., 50; as to right of 
 Government to recover money paid by mistake 
 of law to persons who were not officers of the 
 United States, see note to sec. 236, R. S., 
 "VIII. Reopening of Accounts.") 
 
 Pay of disbursing officer may commence 
 prior to furnishing bond — that is, upon accept- 
 ance of appointment or entering upon duty — 
 thesame as other officers. (16 Op. Attv. Gen., 
 38; U. S. V. Eaton, 169 U. S., 346; Glavey v. 
 U. S., 182 U. S., 595; U. S. v. Bradley, 10 Pet., 
 343; U. S. V. Linn, 15 Pet., 290.) 
 
 Oath of ofla.ce. — The fact that an officer is 
 his own successor does not relieve him from the 
 requirement of taking the oath of office pre- 
 scribed by sections 1756 and 1757, Revised 
 Statutes. The law "contemplates that the 
 oath shall be taken at every new appointment 
 before entering upon the duty." (19 Op. Atty. 
 Gen., 219.) _ . 
 
 A promotion in the Army is an appointment 
 to a higher office therein. (30 Op. Atty. Gen., 
 177.) 
 
 For other cases, see notes to sections 1458 and 
 1757, Revised Statutes. 
 
 VIII. Power of Removal. 
 
 May be removed by President. — "In the 
 
 absence of a constitutional provision or statu- 
 tory regulation it would seem to be a sound and 
 necessary rule to consider the power of removal 
 as incident to the power of appointment. This 
 power of removal from office was a subject much 
 disputed and upon which a gieat diversity of 
 opinion was entertained in the early history of 
 this Government. This related, however, to 
 the power of the President to remove officers 
 appointed with the concurrence of the Senate, 
 both constituting the appointing power. No 
 one denied the power of the President and 
 Senate, jointly, to remove where the tenure of 
 the office was not fixed by the Constitution, 
 which was a full recognition of the principle 
 that the power of removal was incident to the 
 power of appointment. But it was very early 
 adopted as the practical construction of the 
 Constitution that this power was vested in the 
 President alone, and such would apj^ear to have 
 been the legislative construction of the Consti- 
 tution." (Ex parte Hennen, 13 Pet., 230.) 
 
 Congress may be empowered to fix the term of 
 an officer of the District of Columbia so that he 
 would have a right to hold during said term 
 independently of the Executive and without 
 his appointment being revocable by the Presi- 
 dent, as was indicated by Chief Justice Mar- 
 shall in Marbury v. Madison (1 Cranch, 137). 
 This power might be sustained under the au- 
 thority of Congress to exercise exclusive legis- 
 lation in all cases whatsoever over the seat of 
 government. (Art. I, sec. 8, clause 17.) A dis- 
 tinction, however, exists as to other officers ap- 
 pointed outside of such District. (Parsons v. 
 U. S., 167 U. S., 324.) 
 
 The President has the power, without the con- 
 currence of the Senate, to remove a United 
 States attorney who was appointed for a fixed 
 term prior to the expiration of such term. 
 (Paisons V. U. S., 167 U. S., 324.) 
 
 By section 1767, Revised Statutes [repealed 
 March 3, 1887], it was provided that any person 
 appointed to office by and with the advice and 
 consent of the Senate should be entitled to hold 
 during the term for wliich appointed, "unless 
 sooner removed by and with the advice and 
 consent of the Senate, or by the appointment, 
 with the Like advice and consent, of a successor 
 in his place. ' ' Under this section it was proper 
 for the President to "execute a formal act" re- 
 moving the officer, " pursuant to the resolution 
 of the Senate advising and consenting to his 
 removal." (12 Op. Atty. Gen., 408.) There- 
 peal of this section was intended to restore to the 
 Piesident the power of removal without the ad- 
 vice and consent of the Senate, if indeed that 
 power had ever been taken from him. (Parsons 
 V. U. S., 167 U. S., 327.) 
 
 Military and naval officers. — "The vari- 
 ous methods by which persons in the military 
 or naval service of the United States may be 
 involuntarily separated therefrom are embraced 
 in the terms discharged,' 'dismissed,' and 
 'wholly retired.' The word 'discharged' is 
 properly ' limited in its application to those who 
 have enlisted for definite periods' (Emory v. 
 U. S., 19 Ct. Cls., 254, 262), and unless qualified 
 by other words — as, for example, 'dishonorable' 
 
 97 
 
Art. II, Sec. 2. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Removal of OflB.cers. 
 
 discharge, 'bad-conduct' discharge, discharge 
 ' wthout honor ' — it does not carry with it any 
 Btignia of disgrace or ])uni3hment. ' Dismissed ' 
 i.s a term ])oculiarly ap])lii'al)lo to officers and ia 
 the eijuivalont vi a dishonorable discharge. 
 'Wholly retired' i.s a ])lirase coined for the pur- 
 pose of conveying, with reference to officers, the 
 Bame idea as attaches to the word 'discharged' 
 when a])])lied to enlisted men. The meaning 
 of those terms and the importance of distin- 
 guishing between them was di.scussed by the 
 Court of Claims in the case last above cited. 
 * * * It is evident that the term ' discharged' 
 as used in the act of 1882, now under considera- 
 tion [])roviding for the discharge of officers who 
 fail morally on examination for ])romotion], was 
 intended to be synonymous Avith the worda 
 ' wholly retired, ' and it has been given that con- 
 struction by the department and by Congress." 
 (File 21)260-1392, June 29, 1911, p. 25.) 
 
 Statutory restrictions upon President. — 
 By section 1229, Re\'ise(l Statutes, it was pro- 
 vided that no officer in the military or naval 
 service shall be dismissed in time of peace 
 excei)t pursuant to the sentence of a court-mar- 
 tial.^ This provision is repeated in section 1624, 
 Revised Statutes, article 36, as to officers of the 
 Navy, and in section 1342, Revised Statutes, 
 as to officers of the Army. These enactments 
 have been held constitutional in so far as 
 concerns officers whose aj^pointments were 
 not made with the advice and consent of the 
 Senate, the court saying: "Whether or notCon- 
 gi-esscan restrict the ])owerof removal incident 
 to the ])ower of appointment of those officers 
 who are appointed by the President by and 
 with the advice and consent of the Senate, 
 under the authority of the Constitution (Art. II, 
 sec. 2), does not arise in this case and need not 
 be considered. We hav^e no doubt that when 
 Congress by law vests the appointment of infe- 
 rior officers in the heads of departments it may 
 limit and restrict the power of remov'al as it 
 deems best for the public interest. The consti- 
 tutional authority in Congress to thus vest the 
 appointment implies authority to limit, restrict, 
 and regulate the removal by such laws as Con- 
 gress may enact in relation to the officers so 
 appointed. The head of a dei)artment has no 
 constitutional ]irerogative of appointment to 
 offices independently of the legislation of Con- 
 gress, and by such legislation he must be gov- 
 erned, not only in making appointments but in 
 all that is incident thereto." (Perkinsi). U. S., 
 20 Ct. Cls., 438; quoted and expressly adopted 
 by the Supreme Court in U. S. v. Perkins, 116 
 U. S., 483; compare U. S. v. Andrews, 240 
 U. S., 90.) 
 
 Where an enlisted man was appointed by the 
 President as a warrant officer in the Navy, 
 without being discharged from his enlistment; 
 Held, that it would not be legal to revoke his 
 appointment, thereby restoring him to his 
 former status as an enlisted man, and then dis- 
 charge him from the Navy without sentence of 
 court-martial. That this would be doing indi- 
 rectly what the law does not allow to be done 
 directly, and while "most desirable" in the 
 case presented, was beyond the power of the 
 President. (28 Op. Atty. Gen., 325.) 
 
 A midshipman at the Naval Academy is not 
 an officer of the Navy within the meaning of sec- 
 
 tions 1229 and 1 624 (art. 36) of the Revised Stat- 
 utes, restricting dismissals from the Navy. 
 "Whether Congress has the constitutional jjower 
 of such restricticm is not necessary to decide in 
 thiscase." (Weller d. U. S., 41Ct.Cls., 324, dis- 
 tinguishing U. S. V. Perkins, 116 U. S.,483, 
 which held that a cadet engineer who had grad- 
 uated from the Academy and had served in the 
 Navy two ycnxrs imder orders was an offiu-er 
 within the meaning of these statiites.) A cadet 
 at West Point is not an officer within the mean- 
 ing of section 1 229, Revised Statutes. (Ilartigan 
 V. U. S., 196 U. S., 169, citing on general subject 
 Mullan V. U. S., 140 U. S., 240; Shurtleff v. U. S., 
 189 U.S., 311.) 
 
 Whatever power the President may have to 
 dismiss civil officers, it does not apply to officers 
 of the Army and Navy, who, under Revised 
 Statutes, section 1229, shall not in time of peace 
 be dismissed except upon and in pursuance of 
 the sentence of a court-martial or in commu- 
 tation thereof. (U. S. v. Andrews, 240 U. S., 
 90. See note to sees. 1229 and 1624, art. 36, 
 R. S.) 
 
 It is well settled that in time of war the 
 President has the authority, under the Consti- 
 tution and laws, to dismiss an officer of the 
 Army or Navy from the service for any cause 
 which in his judgment either renders the 
 officer unsuitable for, or whose dismissal would 
 promote, the public service. (Brown v. Root, 
 18 App. D. C..2.39.) 
 
 As to right of officer to trial by court-martial 
 after dismissal, see section 1624, art. 37, Revised 
 Statutes, and Wallace v. United States (55 Ct. 
 Cls., 396.) 
 
 Power of President and Senate. — Sec- 
 tion 1229, Revised Statutes, does not deprive the 
 President of power, by and with the advice and 
 consentof the Senate, toremov^ea commissioned 
 officer of the Army or Navy. Accordingly, the 
 President.has the ]iower to remove such officers 
 by the appointment of others in their places, 
 with the concurrence of the Senate. (Blake v. 
 U. S., 103 U. S., 227; McElrath v. U. S., 102 
 U. S.,426; Keyes v. U. S., 109 U. S., 336, 339; 
 Quackenbush v. U. S., 177 U. S., 25; 24 Op. 
 Atty. Gen., 89; compare 15 Op. Atty. Gen., 
 463; 16 Op. Atty. Gen., 203.) 
 
 A nomination made by the President to the 
 Senate of A B in the place of C D, removed, 
 operates to remove the incumbent upon confir- 
 mation of the Senate, notwithstanding that no 
 letter of dismissal was pre viously addressed to 
 C D. The removal takes effect upon notifica- 
 tion to the incumbent by letter in the name of 
 the President, or upon arriv^al of his successor to 
 enter upon duty. (8 Op. Atty. Gen., 379.) 
 
 Reduction of Army. — The President was 
 authorized by act of July 15, 1870, providing for 
 the reduction of the Army, to "muster out" 
 officers reported unlit for duty; and this author- 
 ity was not limited by the act of Jiily 17, 1866, 
 now embodied in section 1229, Revised Stat- 
 utes. "The purpose of the act 17th July, 1866, 
 was not to attach a life tenure or element of 
 vested right to the olTice, but to save officers ' in 
 time of peace ' from the ignominy of a hasty and 
 dishonorable dismissal. The practical results 
 of that statute in connection with the other pro- 
 visions of law bearing upon the subject are these: 
 That in time of war the President may dismiss 
 
 98 
 
Recess Appointments. 
 
 Pt. 1. TEE CONSTITUTION. 
 
 Art. II, Sec. 2. 
 
 an oflicer from the service at any moment and 
 for any cause; that in time of peace he may dis- 
 miss him for cause with the cooperation of a 
 court-mai-tial, or remove him without cause 
 with tlie consent of tlie Senate. The acts of 
 18G6 and 1870 are, therefore, neither in conflict 
 nor in pari materia. They spring from different 
 provisions of the Constitution. The one is an 
 exercise of the legislative power 'to make rules 
 for the government and regulation of the land 
 and naval forces'; the other of the power 'to 
 raise and support armies.' The former relates 
 to the punishment or protection of the indi- 
 vidual oflicer; the latter to the Army at large. 
 It was the purpose of the one to secure to each 
 oflicer a trial by court-martial in all cases 'in 
 time of peace' ; it was the purpose of the other to 
 reduce the Army of the United States from 
 45 to 25 regiments." (Sherburne v. U. S., 16 
 Ct. Cls., 491; see also Street v. U. S., 24 Ct. Cls., 
 230; Duryea v. U. S., 17 Ct. Cls., 24; and file 
 262G0-1392, June 29, 1911.) 
 
 The courts will not grant an injunction 
 to prevent the removal of an officer from the 
 classified civil service (White v. Berry, 171 
 U. S., 366): "The appointment to an official 
 position in the Government, even if it be 
 simply a clerical position, is not a mere minis- 
 terial act, but one Involving the exercise of 
 judgment. The appointing power must deter- 
 mine the fitness of the applicant; whether or 
 not he is the proper one to discharge the duties 
 of the position. Therefore it is one of those 
 acts over which the courts have no general 
 supervising power. In the absence of specific 
 provision to the contrary, the power of removal 
 is incident to the power of appointment. * * * 
 Unless, therefore, there be some specific pro- 
 
 \'ision to the cont'-ary, the .action of the Secre- 
 tary of the Interior in removing the petitioner 
 from office on account of inefficiency is beyond 
 review in the courts, either by mandamus to 
 rein?tate him or by compelling payment of 
 salary as though he had not been removed." 
 (Keimt). U. S., 177 U. S., 290; see also Brown v. 
 Root, 18 App. D. C, 239.) 
 
 "Under the former laws the courts had no 
 power to review the action of the head of a de- 
 partment in discharging an employee for in- 
 efficiency. Keim v. United States, 177 U. S., 
 290; Tayiori;. Taft, 24 App. D. C, 95." Whether 
 that rule is changed by act August 23. 1912 
 (37 Stat. 413), not decided, as that act has not 
 been made effective by the action of the Civil 
 Service Commission as therein provided. 
 (Persing v. Daniels, 43 App. D. C, 470.) 
 
 Where a statute specifies certain causes 
 of removal from office, the incumbent is en- 
 titled to a hearing prior to his removal (Reagan 
 V. U. S., 182 U. S., 419); however, the specific 
 mention of certain causes for removal is not 
 exclusive, and the incumbent of an office may 
 accordingly be removed for other causes; and 
 in the case of removal for causes not specified 
 in the statute he can not demand a hearing. 
 (Shurtleff v. U. S., 189 U. S., 311.) 
 
 IX. Right op Officers to Resign. 
 
 "The resignation of an oflS.cer of the 
 Navy is not effective until it has been duly ac- 
 cepted by the President, who possesses the 
 power of compelling the officer to remain in 
 the service by declining to accept such resig- 
 nation." (File 26505-21 and 28, citing Edwards 
 V. U. S.. 103 U. S., 471; sec. 1624, R. S., art. 
 10; file 26262-2146.) 
 
 [Clause 3. Eecess appointments.] ^Tlie President shall have Power to fill 
 up all Vacancies that may happen during the Recess of the Senate, by grant- 
 ing Commissions which shall expire at the End of their next Session. 
 
 Recess of Senate. — It was held by the 
 Court of Claims, May 26, 1884, that there was 
 "no doubt " that a vacancy occurring while the 
 Senate wag temporarily adjourned could be 
 and was legally filled by appointment of the 
 President in accordance with this clause of the 
 Constitution, and that the appointee legally 
 held the office until he was notified of his rejec- 
 tion by the Senate at its next regular session 
 established by law, which Ijegan on the first 
 Monday of the following December. (Gould v. 
 U. S., 19 Ct. Cls., 593, 595.) The Attorney 
 General, thereafter (Dec. 24, 1901), expressly 
 dissented from the Court of Claims decision, 
 and advised the President that a vacancy oc- 
 curring during a temporary adjournment of 
 the Senate could not be filled by him as a 
 recess appointment, but that such appointments 
 could l)e made only when the Senate adjoiirned 
 sine die. (23 Op. Atty. Gen., 599; affirmed 
 29 Op. Atty. Gen., 602; modified, 33 Op. Atty. 
 Gen., 20.) 
 
 Vacancies in heads of Departments, 
 bureaus, etc.— The President has the right 
 under the Constitution, and impliedly under 
 section 181, Revised Statutes, to make a tem- 
 porary appointment, designation, or assign- 
 ment of one officer to perform the duties of 
 
 another in the case of a vacancy caused l)y 
 death, disability, or otherwise during the recess 
 of the Senate; and such temporary appointment, 
 designation, or assignment is not limited by law 
 to any particular period. (25 Op. Atty. Gen., 
 258. See sec. 181, R. S., and note.) 
 
 Form of appointment. — A temporary ap- 
 pointment during a recess of the Senate need 
 not be made in any prescribed form. A com- 
 munication from the Secretary of War informing 
 the recipient that he has been aj)pointed an 
 officer of the Army liy the President is sufficient, 
 and answers the purpose of a commission if a 
 commission is necessary. (O'Shea v. U. S., 
 28 Ct. Cls., 392.) 
 
 Effect of temporary appointinent. — 
 
 Where the term of an officer, such as the chief 
 of a bureau in the Navy Department, is limited 
 by law to four years (see sec. 421, R. S.), the 
 period during which the appointee serves under 
 an ad interim ajipointment by the President is 
 not counted, but the four years do not com- 
 mence to run until the appointment has been 
 made with the advice and consent of the Senate, 
 even though the nomination is worded to take 
 effect from the date of the ad interim appoint- 
 ment. (16 Op. Atty. Gen., 648.) 
 
 99 
 
Art. II, Sec. 3. 
 
 Ft. 1. THE CONSTITUTION. 
 
 Commissions. 
 
 Teniporai-y appointment not accepted. — 
 A recess commiH.siou which was iiul accepted, 
 and was iherel'ore never of any practical effect, 
 should not bo accepted after the ai)i>(iintnient 
 has been conlirmed by the Senate, but nliould be 
 <lisn>pir(kHl and a perman(>nt commission issued 
 in the usual manner. (File 8G22-2, Feb. 10, 
 1908; eee also 2 Op. Atty. Gen., 336; U. S. v. 
 Kirkpatrick, 9 Wheat., 721.) 
 
 Vacancy may be filled during recess, 
 although it existed while Senate was in 
 session. — "If we interpret the word 'happen' 
 as being merely equivalent to 'happen to exist' 
 (aa I ihink we may legitimately do), then all 
 vacancies which, from any casualty, nappen to 
 exist at a time when the Senate can not be con- 
 sulted as to filling them, may l)e temporarily 
 filled by the President ;_ and the whole pur])ose 
 of the Constitution is completely accom- 
 plished." (1 Op. Atty. Gen., 631; see also 
 Matter of Farrow, 3 Fed. Rep., 115.) Accord- 
 ingly, the President has power to fill not only 
 vacancies which originated in the recess of the 
 Senate, biit also vacancies which existed while 
 the Senate was in session. (16 Op. Atty. Gen., 
 522; see also 12 Op. Atty. Gen., 449.) 
 
 "Mr. Wirt in 1823, Mr. Taney in 1833, and 
 Mr. Legare in 1841, concur in oj^inion that 
 vacancies first occurring during the session of 
 the Senate may be filled by the President in 
 the recess." (12 Op. Atty. Gen., 33.) 
 
 "If the question were new, and now for the 
 first time to be considered, I might have serious 
 doubts of your constitutional power to fill up 
 the vacancy, by temporary appointment, in the 
 recess of the Senate. But the question is not 
 new. It is settled in favor of the power, so far at 
 least as a constitTitional question can be settled, 
 by the continued practice of your predecessors, 
 and the reiterated opinions of mine, and sanc- 
 tioned, as far as I know or believe, by the 
 unbroken acquiescence of the Senate." (10 
 Op. Atty. Gen., 356.) 
 
 Where an office was created by Congress, to 
 be filled by and with the advice and consent 
 of the Senate, but was not filled during the 
 session in which it was created, the President 
 has power to make a recess appointment 
 thereto after the Senate adjourns. (26 Op. 
 Atty. Gen., 234; see also 19 Op. Atty. Gen., 
 261; Inre Yancey, 28 Fed. Rep., 445; compare 
 file 6288-2, Mar. 29, 1907.) 
 
 Where the Senate fails or refuses to confirm 
 the President's nominee, and the President 
 durin<j the next recess of the Senate makes an 
 appointment thereto, such appointment is 
 valid. (Matter of Farrow, 3 Fed. Rep., 112; 
 12 Op. Atty. Gen., 32.) 
 
 "No money shall be paid from the Treasury, 
 as salary, to any person appointed during the 
 recess of the Senate to fill a vacancy in any 
 
 existing oflice, if the vacancy existed while 
 the Senate was in session and was by law 
 required to be filled by and with the advice 
 and consent of the Senate, until such appointee 
 has been confirmed bv the Senate." (Sec. 
 1761, R. S.; 26 Op. Atty ."Gen. 234; 30 Op. Atty. 
 Gen., 314; 21 Comp. Dec, 722; but eee 17 
 Comp. Dec, 95.) 
 
 A commission issued by the President dur- 
 ing a recess of the Senate continues in force 
 until the end of the next session, even though 
 the President's appointee is in the meantime 
 rejected by the Senate. (4 Op. Atty. Gen., 30; 
 2 Op. Atty. Gen., 336; In re Marshalship, etc., 
 20 Fed. Rep., 382.) 
 
 A vacancy having occurred during the 
 session of the Senate and the Senate having 
 failed to confirm an appointment, the Presi- 
 dent may then appoint the nominee or any 
 other person to fill the vacancy by temporary 
 commission to expire at the end of the next 
 session of the Senate. (30 Op. Atty. Gen., 314, 
 citing 1 Op. Atty. Gen., 031; 2 Op. Atty. Gen., 
 525; 3 Op. Atty. Gen., 673; 4 Op. Atty. Gen., 
 523; 7 Op. Atty. Gen., 186; 10 Op. Atty. Gen., 
 356; 12 Op. Atty. Gen., 32; 12 Op. Atty. Gen., 
 455; 14 Op. Atty. Gen., 562, 16 Op. Atty. Gen., 
 522; 26 Op. Atty. Gen., 234.) "As several of 
 the opinions to which I have just referred 
 discuss the entire subject with marked thor- 
 oughness, I have concluded to simply state 
 the conclusion at which my predecessors 
 arrived. These opinions announce, as a doc- 
 trine of administrative law, that the expression 
 in the Constitution, 'all vacancies that may 
 happen during the recess,' signifies 'all vacan- 
 cies that may happen to exist during the recess.' 
 Furthermore, these opinions concur in the 
 general conclusion that howsoever a vacancy 
 happens to exist it may be filled by temporary 
 appointment of the President, and they agree 
 that it is the true spirit and meaning of the 
 Constitution to have all the offices, which 
 Congress indicates to be needful for the ends 
 of government by creating them, filled pro- 
 visionally rather than that they remain vacant 
 or that a special call of the Senate be required 
 for the purpose of confirmation." (30 Op. 
 Atty. Gen., 314.) 
 
 "A^Tien an office is created and takes effect 
 during a session of the Senate and a subsequent 
 session of Congress passes without the same 
 being filled , the President can not make a valid 
 appointment to such office during a recess of 
 the Senate." (Schenck v. Peay, 21 Fed. Cas. 
 No. 12451.) 
 
 Revocation of commission. — A commis- 
 sion as lieutenant commander in the Navy, 
 issued during a recess of the Senate, can not, 
 after acceptance, be revoked. (File 4389, 
 Nov. 18, 1907.) 
 
 Section 3. [Messages to Congress; execution of laws; commissioning of 
 officers; etc.] lie shall from time to time give to the Congress Information of 
 the State of the Union, and recommend to their Consideration such Measures 
 as he shall judge necessary and expedient; he may, on extraordinary Occasions, 
 convene both Houses, or either of them, and in Case of Disagreement between 
 them, with Respect to the Time of Adjournment, he may adjourn them to 
 
 100 
 
Coramissions. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. II, Sec. 3. 
 
 such Time as he shall think proper; he shall receive Ambassadors and other 
 pubUc Ministers; he shall take Care that the Laws be faithfully executed, and 
 shall Commission all the Officers of the United States. 
 
 I. Duty to See that Laws are Executed. 
 II. Duty to Commission Officers. 
 
 I. DtJTY to See that' Laws are Executed. 
 
 Execution of laws. — "The Constitution, 
 section 3, Article II, declares that the President 
 'shall take care that the laws be faithfully exe- 
 cuted,' and he is provided with the means of 
 fulfilling this ol)ligation by his authority to 
 commission all the officers of the L'nited States, 
 and by and with the ad^'ice and consent of the 
 Senate to appoint the most important of them, 
 and to fill vacancies. He is declared to be 
 Commander in Chief of the Army and Navy of 
 the United States. The duties which are thus 
 imposed upon him he is further enabled to per- 
 form by the recognition in the Constitution, 
 and the creation by acts of Congress, of execu- 
 tive departments. * * * These aid him in 
 the performance of the great duties of his office, 
 and represent him in a thousand acts to which 
 it can hardly be supposed his personal attention 
 is called, and thus he is enabled to fulfill the 
 duty of his great department, expressed in the 
 phrase that 'he shall take care that the laws be 
 faithfully executed.' * * * We can not 
 doubt the power of the President to take meas- 
 ures for the protection of a judge of one of the 
 courts of the United States, who, while in the 
 discharge of the duties of his office is threatened 
 with a personal attack which may probably 
 result in his death, and we think it clear that 
 where this protection is to be afforded through 
 the ci^"il power, the Department of Justice is 
 the proper one to set in motion the necessary 
 means of protection." (In re Neagle, 135 
 U. S., 1.) 
 
 The duty of the President under this clause 
 is not limited to the enforcement of acts of 
 Congress or of treaties of the United States 
 according to their express tenns, but includes 
 the rights, duties, and obligations growing out 
 of the Constitution itself, our international rela- 
 tions, and all the protection implied by the 
 nature of the government under the Constitu- 
 tion. (In re Neagle, 135 U. S., 1.) 
 
 The Secretary of War is authorized by this 
 section to appoint an agent or commissioner to 
 conduct certain investigations, although such 
 agent or commissioner can not be paid for his 
 serAdcea but must await the action of Congress, 
 in view of a statute prohibiting any payments 
 to agents or commissioners thereafter appointed, 
 except out of specific appropriations to be made 
 by law. "The power of appointment results 
 fi-om the obligation of the executive department 
 of the Government 'to take care that the laws 
 be faithfully executed ; ' an obligation imposed 
 by the Constitution and from the authority of 
 which no mere act of the legislature can occa- 
 sion a dispensation. Congress may, however, 
 indirectly limit the exercise of this power by 
 refusing ai:)propriations to sustain it, and thus 
 paralyze a function which it is not competent 
 
 to destroy. This would seem to be the purpose 
 of the act of August 26, 1842, which may 
 be regarded as an exposition of the legislative 
 will, and to which, except in cases of command- 
 ing exigency, I think the executive action 
 should be conformed ; for whilst it is quite clear 
 that the power of appointment is unimpaired 
 by the acts of Congress referred to, it is equally 
 obAdous that the intention of those by whom 
 they were passed was to discountenance its 
 ordinary execution." (4 Op. Atty. Gen., 248.) 
 
 It is one of the highest duties of the President 
 to take care that the laws be faithfully executed, 
 and consequently that they may not be abused 
 by any officer under his authority or control, to 
 the grievance of any citizen. Accordingly, the 
 President has constitutional power to order the 
 discontinuance of a suit by the Attorney General 
 or his subordinates. (2 Op. Atty. Gen., 53.) 
 
 If a district attorney should refuse to obey the 
 President's order, the prosecution, while he 
 remained in office, would still go on ; in such case 
 the removal of the disobedient olScer and the 
 substitution of one more worthy in his place 
 would enable the President, thi'ough him, 
 faithfully to execute the law; and it is for this, 
 among other reasons, that the power of remov- 
 ing the district attorney resides in the Presi- 
 dent. (2 Op. Atty. Gen., 482.) 
 
 "The only power, therefore, which the 
 President possesses where the 'life, liberty, or 
 property ' of a private citizen are concerned, is 
 the power and duty prescribed in the third 
 section of the second article, which requirea 
 'that he shall take care that the laws shall be 
 faithfully executed.' He is not authorized to 
 execute them himself, or through agents or 
 officers, civil or military, appointed by himself; 
 but he is to take care that they be faithfully 
 carried into execution as they are expounded 
 and adjudged by the coordinate branch of the 
 Government to which that duty is assigned by 
 the Constitution. It is thus made his duty to 
 come to the aid of the judicial authority if it 
 shall be resisted by a force too strong to be over- 
 come without the assistance of the executive 
 arm. But in exercising this power he acts in 
 subordination to judicial authority, assisting it 
 to execute the process and enforce its judg- 
 ments." (Ex parte Merryman, 17 Fed. Cas. 
 No. 9487.) 
 
 "The President has, under the Constitution 
 and laws, certain duties to perform, among 
 these being to take care that the laws be faith- 
 fully executed; that is, that the other executive 
 and administrative officers of the Government 
 faithfully perform their duties; but the statu tea 
 regulate and prescribe these duties, and he has 
 no more power to add to or subtract from the 
 duties imposed upon subordinate executive 
 and administrative officers by the law thaxi 
 those officers have to add or subtract from his 
 duties." (19 Op. Atty. Gen., 686.) 
 
 "It was urged at the bar that the Postmaster 
 General was alone subject to the direction and 
 control of the President with respect to the 
 
 101 
 
Art. II, Sec. 3. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Commissions, 
 
 execution of the duty imposed upon him by 
 this hiw, and this nf;;ht of tlie President is 
 chunu'd lis growing out of the obligation im- 
 posed upon liim by the Constitution to take care 
 that tlie laws be fiuthfully executed. This is 
 8 doctrine that can not receive the sanction of 
 this court. It would be vesting in the Presi- 
 dent a dispen.sing power W'iii<h has no counte- 
 nance for its support in any part of the Constitu- 
 tion and is asserting a principle which, if car- 
 ried out in its results to all cases falling witliin 
 it, would be clothing the President with a 
 power entirely to control the legislation of 
 Congress and paralyze the administration of 
 justice." (Kendall v. U. S., 12 Pet., 524.) 
 
 II. Duty to Commission Officers. 
 
 Commissioning officers. — "Hereafter the 
 commissions of all ofhcers under the direction 
 and control of the Secretary of the Treasury, the 
 Secretary of War, the Secretary of the Navy, 
 and the Secretary of Agriculture shall be made 
 out and recorded in the respective departrdents 
 under which they are to serve, and the depart- 
 ment seal affixed thereto, any laws to the con- 
 trary notwithstanding: Provided, That the said 
 seal shall not be affixed to any such commis- 
 sion before the same shall have been signed by 
 the President of the United States." (Act 
 Mar. 28, 1896, 29 Stat., 75.) 
 
 "The President is authorized to make out 
 and deliver, after the adjournment of the Sen- 
 ate, commissions for all officers whose appoint- 
 ments have been ad\-lsed and consented to by 
 the Senate." (Sec. 1773, R. S.) 
 
 It is not necessary for the President personally 
 to sign the commissions of officers appointed by 
 him without the advice and consent of the 
 Senate, but such commissions may be issued 
 by the Secretary' of the Navy . However, " it is 
 proper" that the commission should declare 
 the act to be an act of the President, performed 
 bv the head of the department as his represen- 
 tative. (22 Op. Attv. Gen., 82; file 28687-22, 
 June 14, 1917; 22724-34, July 28, Aug. 1, and 
 Aug. 6, 1917.) 
 
 Form of commission, where appointment is 
 made during recess of the Senate. (See note to 
 Art. II, 6ec.2,clause3, "Form of appointment.") 
 
 To grant a commission to a person appointed 
 might, perhaps, be deemed a duty enjoined by 
 the Constitution. "Heshall," says that instru- 
 ment, ' ' commission all the officers of the United 
 States." (Marbury v. Madison, ICranch, 137.) 
 
 The commission is not necessarily the appoint- 
 ment, though conclusive evidence of it. (Mar- 
 bury r. Madison, 1 Cranch, 137; see note to Art. 
 II, sec. 2, clause 2.)_ The acta of appointing the 
 officer and commissioning the person appointed 
 can scarcely be considered as one and the same, 
 since the power to perform them is given in two 
 separate and distinct sections of the Constitu- 
 tion. (Marbury v. Madison, 1 Cranch, 137; 
 25 Op. Attv. Gen., 292; Quackenbush v. U. S., 
 177 U.S., 27.) 
 
 Appointments by the President are always 
 evidenced by commissions. (19 Op. Atty. 
 Gen., 589, 592.) 
 
 Retired officers advanced in rank "sliall be 
 entitled to and shall receive commissions in 
 accordance with such advanced rank." (Act 
 
 Mar. 4, 1911, 36 Stat. 1354; see file 26509-33, 
 Mar. 24, 1910.) 
 
 Advancement in rank only. — An assistant 
 
 f)aymaster advanced in rank from ensign to 
 ieutcnant (junior grade), without receiving an 
 advancement in grade, need not be commis- 
 sioned, as this is merely an advancement in 
 rank, without change in office, which remains, 
 as before, that of assi.'^tant paymaster. (File 
 26254-542; see also 19 Op. Atty. Gen., 169, 173; 
 20 Op. Atty. Gen., 358; 16 Op. Atty. Gen., 652; 
 25 Op. Atty. Gen., 185, 313; Cloud v. U. S., 43 
 Ct . Cls., 69; 17 Comp. Dec, 255; 16 Comp. Dec, 
 662; sec 1506, R.S., as amended; file 28687^:1, 
 Sept. 16, 1916; 4649-02, July 17, 1902, noted 
 under sec 421, R. S.; 28687-16, Dec. 30, 1916; 
 26254-2171, Jan. 16, 1917; 22 Op. Atty. Gen., 
 480; but see file 1282-01 , Mar. 19, 1901, in which 
 the Secretary of the Navy directed that staff 
 officers advanced in rank without advancement 
 in grade or change of office, should be nomi- 
 nated, and after confirmation by the Senate, 
 commissioned with the higher rank, thereby 
 expressly changing the "long established cus. 
 tom of the department to advise officers of th 
 staff corps of the Navy of the attainment of e 
 higher rank in their grade by a letter of notifia 
 cation only." See also file 28687-4:1, Sept- 
 16, 1916, holding that former practice might 
 legally be reverted to; and file 28687-22, June 
 14, 1917, to same effect. And see Op. Atty. 
 Gen., Dec. 27, 1916, file 28687-4:8, stating chat 
 rank may be conferred by mere notification 
 without confiiTnation or commission.) 
 
 Governors of Guam and Tutuila. — Naval 
 officers appointed by the Secretarj- of the Navy, 
 under the direction of the President, as gover- 
 nors of the islands of Guam and Tutuila, may 
 be issued commissions by the President in the 
 usual form, such commissions being desirable 
 "for administrative reasons," and merely evi- 
 dence of appointments already made under the 
 fiower of the President as Commander in Chief. 
 25 Op. Atty. Gen., 292.) 
 
 Withliolding commission. — "Even after 
 confirmation by the Senate, the President may 
 in his discretion withhold a commission from 
 the applicant. And until a commission, signi- 
 fying that the purpose of the President has not 
 been changed, the appointment is not fully 
 con.mmmated." (4 Op. Atty. Gen., 218, citing 
 Marbury v. Madison, 1 Cranch, 137; see also 
 12 Op. Atty. Gen., 306; 13 Op. Attv. Gen., 44; 
 file 4996, June 1, 1906; file 26251-2833, Mar. 31, 
 1910.) 
 
 The President is not required to issue a com- 
 mission to an officer who had been recom- 
 mended for trial by general court-martial for 
 shortages in his accounts and indebtedness, and 
 who thereafter presented his resignation, which 
 was accepted "for the good of the service," in 
 the meantime having been nominated by the 
 President for promotion, which nomination was 
 confirmed by the Senate, but whose commis- 
 sion had not been signed by the President. 
 (File 26251-2833.) 
 
 But if the commission be signed and sealed, 
 and the officer be of a class not removable by 
 the President, in that case the President's 
 right over the office no longer exists. The right 
 of the appointee thereto is vested, his commis- 
 sion irrevocable. (12 Op. Atty. Gen., 304.) 
 
 102 
 
Coraniissions. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. II, Sec. 3. 
 
 A commission should not be issued for senti- 
 mental reasons where no services are to be 
 rendered under it, the appointment having 
 been declined after confirmation by the 
 Senate. (4 Op. J. A. G., 443, Oct. 19, 1893; 
 quoted, file 26251-2833, Mar. 31, 1910; see also 
 file 8622-2, Feb. 10,1908.) 
 
 When the Senate, in confirming the nomina- 
 tion of a candidate for lieutenant in the Navy, 
 specifies that he shall take rank next after a 
 designated officer, thus varying the terms of 
 the nomination, a commission can not properly 
 issue. (3 Op. Atty. Gen., 188; see also 4 Op. 
 Atty. Gen., 218; and see note to Art. II, sec. 2, 
 clause 2.) 
 
 When the President nominates for office a 
 person ineligible thereto, under Article I, sec- 
 tion 6, clause 2, although the Senate confirms 
 the nomination, it can not be made the basia of 
 an appointment even when liis disqualification 
 ceases. (17 Op. Atty. Gen., 522.) 
 
 Erroneous commission. — A commission 
 issued to an officer who had not qualified for 
 promotion, but was nominated and confirmed 
 through error, is null and void. (File 26260- 
 1193:1, Jan. 11, 1912; see also 11 Comp. Dec, 43; 
 file 26260-110:1, June 21, 1909; file 26260-132; 
 file 26254-645, Comp. Dec. Feb. 21, 1911, 120 
 S. and A. Memo. 1684; file 26254-482, Comp. 
 Dec, Sept. 15, 1910; file 26254-655, Comp. Dec, 
 Feb. 28, 1911; file 26254-654, Comp. Dec, Feb. 
 27, 1911, 120 S. and A. Memo., 1687; 17 Comp. 
 Dec, 611; and see file 5172-93, Apr. 16, 1907, 
 file 26254-286^0, May 27, 1909; 15 Comp. Dec, 
 584.) 
 
 The President and Senate, by nomination 
 and confirmation, may correct an error in the 
 date of a military commission. (3 Op. Atty. 
 Gen., 307; 8 Op. Atty. Gen., 223.) 
 
 Where a militia officer mustered into the serv- 
 ice of the United States had been erroneously 
 commissioned by the governor of his State, it 
 was proper for the governor to issue him a 
 second commission to correct the error, and 
 such new commission being in accordance with 
 the law of the State, would relate back to the 
 time when he entered the service of the United 
 States. (Nutt v. U. S., 41 Ct. Cls., 368.) 
 
 Date of. — WTiere an officer is transferred from 
 the retired list to the active list by special act 
 of Congress, without stating the position he is 
 to take on the active list, the only appropriate 
 date which can be fixed for his restoration is 
 the date of the act itself. (File 2871-7, Oct. 11, 
 1907.) 
 
 When naval officers are commissioned on the 
 same date, the numbering of the commissions to 
 determine the relative rank of the officers, is, 
 in the absence of statutes, a matter of practice 
 in the Navy Department, and not governed by 
 law. (1 Op. Attv. Gen., 325; file 28026-1209:4, 
 Oct. 25, 1915; 11130-27, Aug. 26, 1915; Toulon 
 V. U. S., 52Ct. Cls. 333.)_ 
 
 In cases where appointing power did not fill 
 a vacancy at the time it was created, or the 
 person at the time was ineligible for appoint- 
 ment, and the department acted promptly, 
 it is not deemed advisable to antedate the 
 commission. (File 9466-03.) 
 
 Where the filling of vacancies is discretionary 
 with the President, the commissions need not 
 
 be made to date from the occiurence of the 
 vacancy unless the appointing power so decides. 
 (File 7151-03; see also file 3089-04, 9 Comp. 
 Dec. 612.) 
 
 Where new offices are created by law, and it 
 is provided therein that no person shall be 
 appointed until he has been found qualified by 
 examination, the commissions issued should not 
 bear a date prior to that when the candidate 
 qualified by examination. (File 5460-72:1, 
 May 19, 1915; see also 14 Op. Atty. Gen. 192. 
 On general subject of antedating commissions 
 see 19 Ct. Cls. 145, 17 Op. Atty. Gen., 319, 19 
 Ct. Cls. 137. 
 
 An ensign who failed on examination for 
 promotion, was suspended, and after six months 
 qualified and was promoted, should not be 
 given in his commission the same date as that 
 on which he would have been promoted had he 
 been found qualified upon his first examina- 
 tion, as this would entitle him to pay for a 
 period of six months during which he was not 
 performing the duties of the higher grade and 
 had demonstrated his incompetency therefor. 
 File 26266-475, May, 1915; see act Mar. 4, 
 913, 37 Stat., 892.) 
 
 When the term of an officer, such as the 
 chief of a biu-eau in the Navy Department, is 
 limited by law to four years (see sec. 421, R. S.), 
 the period during which the appointee serves 
 under ail ad interim appointment by the Presi- 
 dent is not counted, but the four years do not 
 commence to run until the apj^ointment has 
 been made with ihe advice and consent of the 
 Senate, even though the nomination is worded 
 to take effect from the date of the ad interim 
 appointment. (16 Op. Atty. Gen., 656.) 
 
 For other cases, see note to section 1458, Re- 
 vised Statutes. 
 
 Changes in date. — See above, "Erroneous 
 commission." 
 
 While an officer might have been promoted 
 to the grade of captain in the Marine Corps 
 when a vacancy in that grade occurred, such 
 action was discretionary with the appointing 
 power; and since such action was not taken, 
 but the officer was promoted and commissioned 
 as of a later date, there is no law or regulation 
 entitling him to have his commission date from 
 the occurrence of tlie vacancy. (File 2518-04.) 
 
 The statutes and regulations governing pre- 
 cedence having once been determined in any 
 particular case, considerations of repose inter- 
 vene and become important. Disturbance of 
 the Navy lists is prejudicial to the service, and 
 should not be sanctioned where doubt exists 
 respecting the appropriate action, and where a 
 considerable length of time has elapsed. (File 
 8171-03; file 9019-04; 13 Op. J. A. G., 127; see 
 also file 1957-03, 7794-02; 26255-83:4, Aug. 4, 
 1911; 11130-35, Dec. 20, 1916.) 
 
 The action taken at the time an officer's 
 commission was issued should be regarded ae 
 conclusive by subsequent administrations, 
 and his case should not therefore be reopened. 
 Opinions regarding doctrine of res judicata in 
 administrative action considered and applied. 
 (File 11130-6, Dec. 28, 1909; see also note to 
 sec. 417, R. S.; and see file 2346-1, Aug. 23, 
 1905.) 
 
 103 
 
Art. Ill, Sec. 2. 
 
 ri. 1. THE CONSrirUTION. 
 
 Judicial Power. 
 
 courts of inferior jurisdiction necessarily im- 
 plies the power to limit the jurisdiction of those 
 courts to particular objects * * *. The 
 legislative authority of the Union must first 
 make an act a crime, affix a punishment to it, 
 and declare the court that shall have jurisdic- 
 tion of the offense." (U. S. v. Hudson, 7 
 Cranch, 32.) 
 
 See note to Article I, section 8, clause 9, as 
 to the judicial system of the United States, and 
 the status of courts-martial. 
 
 Section 4. [Impeachment of civil officers.] The President, Vice President 
 and all civil Ollicers of the United States, shall be removed from Office on 
 Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes 
 and Misdemeanors. 
 
 ARTICLE III. 
 
 Sectiox 1. [Courts of United States; terms and compensation of judges.] 
 
 The judicial Power of the United States, shall be vested hi one supreme Court, 
 
 and in such inferior Courts as the Congress may from time to time ordain and 
 
 establish. The Judges, both of the supreme and inferior Courts, shall liold 
 
 their Offices during good Behaviour, and shall,- at stated Times, receive for 
 
 their Services a Compensation which shall not be diminished during their 
 
 Contmuance in Office. 
 
 "Of all the courts which the United States 
 may, under their general powers, constitute, 
 one only — the Supreme Court — possesses juris- 
 diction derived immediately from the Consti- 
 tution, and of which the legislative power can 
 not deprive it. All other courts created by 
 the General Government possess no jurisdic- 
 tion but what is given them by the power that 
 creates them, and can be vested with none but 
 what the power ceded to the General Govern- 
 ment will authorize them to confer * * *. 
 The power which Congress possesses to create 
 
 Section 2. [Clause 1. Extent of the judicial power.] — ^ The judicial Power 
 shall extend to all Cases, in Law and Equity, arising under this Constitution, 
 the Laws of the United States, and Treaties made, or which shall be made, 
 imder their Authority; — to all Cases affecting Ambassadors, other public Min- 
 isters and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to 
 Controversies to which the United States shall be a Party; — to Controversies 
 between two or more States; — between a State and Citizens of another State; — 
 between Citizens of different States; — between Citizens of the same Stat© claim- 
 ing Lands under Grants of different States, and between a State, or the Citizens 
 thereof, and foreign States, Citizens, or Subjects. 
 
 Political questions. — "Those questions 
 which respect the rights of a part of a foreign 
 empire which asserts, or is contending for, its 
 independence, and the conduct which must be 
 obserA-ed by the courts of the Union toward the 
 subjects of such section of an empire who may 
 be brought before the tribunals of this counti-y 
 * * * are_ generally rather political than 
 legal La their character. They belong more 
 properly to those who can declare what the law 
 shall be; who can place the nation in such a 
 position with respect to foreign powers as to 
 their own judgment shall appear wise, to whom 
 are intrusted all its foreign relations, than to 
 that tribunal whose power as well as duty is 
 confined to tlie application of the rule which 
 the legislature may prescribe for it. In such 
 contests a nation may engage itself with the one 
 party or the other — may observe absolute neu- 
 trality — or may make a limited recognition of 
 it. The proceedings in the court must depend 
 80 entirely on the course of the Government 
 that it is dilficult to give a precise answer to 
 questions which do not refer to a particular 
 nation. It may be said, generally, that if the 
 
 Government remains neutral, and recognizes 
 the existence of a civil war, its courts can not 
 consider as criminal those acts of hostility 
 which war authorizes, and which the new Gov- 
 ernment may direct against the enemy. To 
 decide otherwise, would be to determine that 
 the war prosecuted by one of the parties waa 
 imlawful, and would be to array the nation to 
 which the court belongs against that party. 
 This would transcend tlie limits prescribed to 
 the judicial department." (U. S. v. Palmer, 
 3 Wheat., 610; see also The Di\-ina Pastora, 4 
 Wheat., 52; The Santissima Trinidad, 7 Wheat., 
 283; and Kennett v. Chambers, 14 How., 38.) 
 
 "Can there be any doubt that when the 
 executive branch of the Government, which is 
 charged with the foreign relations, shall in its 
 correspondence with a foreign nation assume 
 a fact in regard to the sovereignty of any island 
 or country, it is conclusive on tlie judicial de- 
 partment? And in this view, it is not material 
 to biquire nor is it the province of the court to 
 determine whether the Executive be right or 
 wrong. It is enough to know that in the exer- 
 cise of his constitutional functions he has de- 
 
 104 
 
Judicial Power. 
 
 PL 1. THE CONSTITUTION. 
 
 Art. Ill, Sec. 2. 
 
 cided the question. Having done this under 
 the responsibilities which belong to him, it is 
 obligatory on the people and Government of the 
 Union. If this were not the rule, cases might 
 often arise in which, on most importimt ques- 
 tions of foreign jurisdiction, there would be an 
 irreconcilable difference between the executive 
 and judicial departments. By one of these 
 departments, a foreign island or country might 
 be considered as at peace with the United 
 States, whilst the other would consider it in a 
 state of war. No well-regulated goAernment 
 has ever sanctioned a principle so unwise and 
 so destructive of national character." (Wil- 
 liams V. Suffolk Ins. Co., 13 Pet., 415.) 
 
 "Who is the sovereign de jure or de facto of 
 a territory is not a judicial but a political ques- 
 tion, the determination of which by the legisla- 
 tive and executive departments of any Govern- 
 ment conclusively binds the judges, as well as 
 all other officers, citizens, and subjects of the 
 Government. All courts are bound to take 
 judicial notice of the territorial extent of the 
 jurisdiction exercised by the Government whose 
 laws they administer, or of its recognition or 
 denial of the sovereignty of a foreign power, as 
 appearing from the public acta of the legisla- 
 ture and executive, although those acts are not 
 formally put in eAddence nor in accord with the 
 pleadings." (Jones v. U. S., 137 U. S., 202.) 
 
 "If those departments which are intrusted 
 with the foreign intercourse of the nation, 
 which assert and maintain its interests against 
 foreign powers, have unequivocally asserted 
 its rights of dominion over a country of which 
 it is in possession and which it claims under 
 a treaty ; if the legislature has acted on the con- 
 struction thus asserted, it is not in its own 
 courts that this construction is to be denied. 
 A question like this, respecting the boundaries 
 of nations, is, as has been truly said, more a 
 poUtical than a legal question, and in its dis- 
 cussion the courts of e^'el•y coimtry must re- 
 spect the announced will of the legislature." 
 (Foster t). Neilson, 2 Pet., 253; see also Ex parte 
 Cooper, 143 U. S., 472.) 
 
 The ratification and existence of a treaty are 
 political questions. (Doe v. Braden, 16 How., 
 635; Terlinden v. Ames,_ 184 _U. S., 270.) 
 Wliether a particular individual is to be recog- 
 nized as the accredited diplomatic representa- 
 tive of a foreign Government, is a political 
 question. (In re Baiz, 135 U. S., 403.) As to 
 which of two contesting factions is the de jure 
 government of a State of the Union is a political 
 question (Luther v. Borden, 7 How., 1), as ia 
 the question of the necessity for calling out the 
 militia (Martin v. Mott, 12 Wheat., 19), and also 
 the question when troops of the United States 
 should be withdrawn from Cuba, which was 
 presented during its military occupation. 
 (Neely v. Henkel, 180 U. S., 109.) 
 
 With reference to a bill filed to restrain the 
 Secretary of War and officers of the Army from 
 executing certain acts of Congress providing for 
 a military government in the State of Georgia, 
 the court stated in its opinion: "That these 
 matters, both as stated in the body of the bill 
 and in the prayers for relief, call for the judg- 
 ment of the court upon political questions and 
 ujaon rights, not of person or property but of a 
 political character, will hardly be denied. For 
 
 the rights for the protection of which our au- 
 thority is invoked are the rights of sovereignty, 
 of political jurisdiction, of government, of cor- 
 porate existence as a State with all its constitu- 
 tional powers and privileges. No case of pri- 
 vate rights or private property infringed or in 
 danger of actual or threatened infringement, 
 is presented by the bill in a judicial form for the 
 judgment of the court." (Georgia v. Stanton, 
 6 Wall., 50.) 
 
 International law. — "International law is 
 part of our law, and must be ascertained and 
 administered by the courts of justice of appro- 
 priate jurisdiction as often as questions of right 
 depending upon it are duly presented for their 
 determination. For this purpose, where there 
 is no treaty, no controlling executive or legis- 
 lative act or judicial decision, resort must be 
 had to the customs and usages of civilized 
 nations; and as evidence of these to the works 
 of jurists and commentators who, by years of 
 labor, research, and experience, have made 
 themselves peculiarly well acquainted with the 
 subjects of which they treat." (The Paquete 
 Habana, 175 U. S., 677.) 
 
 "International law, in its widest and most 
 comprehensive sense, * * * is part of our 
 law and must be ascertained and administered 
 by the courts of justice as often as such ques- 
 tions are presented in litigation between man 
 and man, duly submitted to their determina- 
 tion. The most certain guide, no doubt, for the 
 decisions of such questions, is a treaty or a 
 statute of this country. But when * * * 
 there is no written law upon the subject, the 
 duty still rests upon the judicial tribunals of 
 ascertaining and declaring what the law is, 
 whenever it becomes necessary to do so in 
 order to determine the rights of parties to 
 suits regularly brought before them. In doing 
 this, the courts must obtain such aid as they 
 can from judicial decisions, from the works 
 of jurists and commentators, and from the acts 
 and usages of civilized nations." (Hilton v. 
 Guyot, 159 U. S., 113.) 
 
 "An act of Congress ought never to be con- 
 strued to violate the law of nations, if any other 
 possible construction remains." (The Charm- 
 ing Betsy, 2 Cranch, 64.) 
 
 "Until an act be passed, the court is bound 
 by the law of nations, which is a part of the law 
 of the land." (The Nereide, 9 Cranch, 388.) 
 
 A public vessel of war of a foreign sovereign 
 at peace with the United States, coming into our 
 ports and demeaning herself in a friendly man- 
 ner, is exempt from the jurisdiction of the 
 country. (The Exchange, 7 Cranch, 116.) 
 
 Adrniralty and maritime jurisdiction. — 
 "The general maritime law is only so far ap- 
 plicable as law in any country as it is adopted 
 by the laws and usages of that country. In 
 this respect it is like international law, or the 
 laws of war, which have the effect of law in no 
 country further than they are accepted and re- 
 ceived as such." (The Lottawanna, 21 Wall., 
 558.) 
 
 The cession of aU cases of admiralty and 
 maritime jurisdiction to the Federal Govern- 
 ment can not be construed as a cession of the 
 waters on which those cases may arise. This 
 article was not intended for the cession of terri- 
 tory or of general j urisdiction . It was obviously 
 
 105 
 
Art. Ill, Sec. 3. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Treason. 
 
 designed for other purposes. It is in the 
 eighth section of the s(>ron(l article that we are 
 to k)ok for cessions of territory and of exchisive 
 jurisiliction. It is to be observed that the power 
 of exchisivo le;j;ishition (which is jurisdiction) is 
 united with cession of territory which is to be 
 the free act of the States. It is diliicult to com- 
 pare the two sections together without feeling a 
 conviction, not to be strengthened by any com- 
 mentary on them, that in descri hing the judicial 
 power the framers of our Constitution had not 
 in view any cession of territory, or which is 
 essentially the same, of general jurisdiction. It 
 is not questioned that whatever may be neces- 
 sary to the full and unlimited exercise of ad- 
 miralty and maritime jurisdiction is in the 
 
 government of the Union. Congress may pass 
 all laws which are necessary and proper for 
 giving the most complete effect to this power. 
 .Still the general jurisdiction over the place sub- 
 ject to this grant of power adheres to the terri- 
 tory as a portion of the sovereignty of the 
 State not yet given away. Accordingly, under 
 a Federal law providing for the punishment of 
 murder committed on the high seas, or in any 
 river, haven, basin, or bay out of the jurisdiction 
 of any particular State, it was held that murder 
 committed on board a warship of the United 
 States in Boston Harbor was not cognizable by 
 the Federal courts, as the waters of the harbor 
 were within the jurisdiction of the State of Mas- 
 sachusetts. (U. S. V. Bevans, 3 Wheat., 336.) 
 
 [Clause 2. Jurisdiction of Supreme Court.] ^ In all Cases affecting Am- 
 bassadors, other public Ministers and Consuls, and those in which a State shall 
 be Party, the supreme Court shall have origmal Jurisdiction. In all the other 
 Cases before mentioned, the supreme Court shaU have appellate Jurisdiction, 
 both as to Law and Fact, with such Exceptions, and under such Regulations 
 as the Congress shall make. 
 
 [Clause 3. Jury trials; places of holding.] ^ The trial of all Crimes, except 
 
 in Cases of Impeachment, shall be by Jury; and such Trial shaU be held in the 
 
 State where the said Crimes shall have been committed ; but when not committed 
 
 within any State, the Trial shall be at such Place or Places as the Congress 
 
 may by Law have directed. 
 
 See note to Article I, section 8, clause 14, "Trials by jury not required in the Navy; and 
 Amendments, Article VI, "Jury trial." 
 
 Section 3. [Clause 1. Treason defined; evidence required to convict.] 
 ^ Treason against the United States, shall consist only in levying War against 
 them, or, in adhering to their Enemies, giving them Aid and Comfort. No 
 Person shaU be convicted of Treason unless on the Testimony of two Witnesses 
 to the same overt Act, or on Confession in open Court. 
 
 War must be actually levied against the 
 United States. — ''However flagitious may be 
 the crime of conspiring to subvert by force the 
 government of our country, such conspiracy is 
 not treason. To conspire to levy war and actu- 
 ally to levy war are distinct offenses. * * * 
 It is not the intention of the court to say that 
 no individual can be guilty of this crime who 
 has not appeared in arms again^st his country. 
 On the contrary, if war be actually levied, that 
 is, if a body of men be actually assembled for 
 the purpose of effecting by force a treasonable 
 purpose, all those who perform any part, how- 
 ever minute or however remote from the scene 
 of action, and who are actually leagued in the 
 general conspiracy, are to be considered as 
 traitors. * * * It is, therefore, more safe, 
 as well as more consonant to the principles of 
 our Constitution, that the crime of treason 
 should not be extended by construction to 
 doubtful cases; and that crimes not clearly 
 within the Constitutional delinition should re- 
 ceive such punishment as the legislature in its 
 wisdom may provide." (Ex parte Bollman, 4 
 Cranch, 75; see also U. S. v. The Insurgents, 2 
 
 Dall., 335; U. S. v. Mitchell, 2 Ball., 348: U. S. v. 
 Burr, 4 Cranch, 469. 25 Fed. Cas. No. 14692; 
 U. S. V. Hoxie, 26 Fed. Cas. No. 15407.) 
 
 Foreigner may be guilty. — "As a foreigner 
 domiciled in the country he was bound to obey 
 all the laws of the United States not immedi- 
 ately relating to citizenship, and was equally 
 amenable with citizens to the penalties pre- 
 scribed for their infraction. He owed allegiance 
 to the government of the country so long as he 
 resided Avithin its limits, and can claim no ex- 
 emption from the statutes passed to punish 
 treason, or the giving of aid and comfort to the 
 insiugent states. The law on this subject is 
 well settled and universally recognized." 
 (Radich v. Hutcliins, 95 U. S., 210; see also 
 CarUsle v. U. S., 16 Wall., 147; U. S. v. Villato, 
 2 Dall., 370.) 
 
 Statutory definition. — "Whoever, owing 
 allegiance to the United States, levies Avar 
 against them or adheres to their enemies, giv- 
 ing them aid and comfort Avithin the United 
 States or elsewhere, is guilty of treason." (Sec. 
 1, Criminal Code, act Mar. 4, 1909, 35 Stat., 
 1088.) 
 
 [Clause 2. Punishment of treason.] ^ The Congress shall have power to 
 declare the Punishment of Treason, but no Attainder of Treason shall work 
 Corruption of Blood, or Forfeiture except during the Life of the Person attainted. 
 
 106 
 
Extradition. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. IV, Sec. 2. 
 
 Punishment. — "Whoever ia convicted of 
 treason shall suffer death; or at the discretion of 
 the court, shall be imprisoned not less than five 
 years and lined not less than ten thousand dol- 
 lars, to be levied on and collected out of any or 
 all of his property, real and personal, of which 
 he was the owner at the time of committing 
 
 such treason, any sale or conveyance to the 
 contrary notwithstanding; and every person so 
 convicted of treason shall, moreover, be in- 
 capable of holding any office under the United 
 States." (Sec. 2, Criminal Code, Act Mar. 4, 
 1909, 35 Stat., 1088; see also sec. 1624, R. S., 
 art. 4.) 
 
 ARTICLE IV. 
 
 Section 1. [Full faith and credit between States as to public records, etc.] 
 Full Faith and Credit shall be given in eacli State to the pubhc Acts, Records, 
 and judicial Proceedings of every other State. And the Congress may by 
 general Laws prescribe the Manner in which such Acts, Records and Proceed- 
 ings shall be proved, and the Effect thereof. 
 
 Section 2. [Clause 1. Privileges and immunities of citizens.] ^ Tlie Citi- 
 zens of each State shaU be entitled to aU Privileges and Immunities of Citizens 
 in the several States. 
 
 [Clause 2. Extradition between States.] - A Person charged in any State 
 with Treason, Felony, or other Crime, who shall flee from Justice, and be found 
 in another State, shall on demand of the executive Authority of the State from 
 which he fled, be delivered up, to be removed to the State having Jurisdiction 
 of the Crime. 
 
 Persons in Navy. — There is no act of Con- 
 gress authorizing a call by the governor of a 
 State for the siu-render of an officer of the Navy 
 charged with having broken the peace of such 
 State, nor any law authorizing an arrest by the 
 Executive with a view to a forcible surrender 
 by him for the purposes of trial. (1 Op. Atty. 
 Gen., 244. See also note to Art. I, sec. 8, clause 
 13, "Exemption of Federal officers and sub- 
 ordinates from arrest by State authorities;" Art. 
 I, sec. 8, clause 14, "Jurisdiction of civil au- 
 thorities over persons in military and naval 
 service;" and note to sec. 355, R. S.) 
 
 In the absence of legal provision for delivery 
 to the civil authorities of a State of persons in the 
 military service, on original demand made upon 
 the President, it rests in "the discretion of the 
 President in what cases he will exercise his 
 military authority over the citizens composing 
 the Army to constrain them to 8iu*render them- 
 selves to the civil authorities of the States." 
 The President in such cases may properly 
 adopt, by analogy, the principle of the Consti- 
 tution relative to the surrender of fugitives by 
 the governors of the States, applying the 
 details of the statute enacted thereunder, "so 
 far as to require the demand to be made by 
 tlie governor of the State or Territory to which 
 the complainant belongs, on the copy of an 
 indictment found or an affidavit made specify- 
 ing the particular offense and authenticated 
 as by that act is provided." (2 Op. Atty. Gen., 
 12.) 
 
 Should the civil authorities undertake collu- 
 sively to obstruct or impede the military 
 authorities in the exercise of their just and 
 
 appropriate jurisdiction of a charge in its mili- 
 tary relations, it would be the bounden duty 
 of the military authorities to maintain their 
 jirrisdiction and to yield it only to an order of 
 the President for good cause or to the ultimate 
 decision of the law by the Supreme Court of the 
 United States. (6 Op. Atty. Gen., 413, 429.) 
 In cases where a person in the Navy is desired 
 by State authorities for trial upon criminal 
 charges the Secretary of the Navy in practice 
 authorizes his surrender by the immediate 
 commanding officer of the man upon presen- 
 tation of warrant in due form and proper hands, 
 provided that the man concerned is not a naval 
 prisoner and satisfactory assurances are given 
 as to his return without expense to the United 
 States when the proceedings against him are 
 completed, provided his return is then desired 
 by the naval authorities. This applies to cases 
 where the man is serving at a navy yard or 
 other place within the limits of the State which 
 desires his surrender. In other cases— that is, 
 where the man is outside the State— "requisi- 
 tion for the delivery of the party must be made 
 by the governor or chief executive of such State, 
 addressed to the Secretary of the Navy, show- 
 ing that the party desired is charged with a 
 crime in that State for which be could be ex- 
 tradited under the Constitution of the United 
 States, the enactments of Congress, and the laws 
 of the State desiring his delivery." (See G. O. 
 No. 121, Navy Dept., Sept. 17, 1914, which con- 
 tains detailed instructions concerning the deliv- 
 ery of men to civil authorities; see also sec. 
 5278, R. S., as to interstate extradition of fugi- 
 tives from justice.) 
 
 [Clause 3. Persons held to service or labor.] ^No Person held to Service or 
 Labour in one State, under the Laws thereof, escapmg into another, shall, in 
 Consequence of any Law or Regulation therein, be discharged from such 
 
 54641°— 22- 
 
 107 
 
Art. IV, Sec. 3. 
 
 PL 1. THE CONSTITUTION. 
 
 Territories. 
 
 I. 
 II. 
 
 III. 
 
 Power of Congress Over Territory. 
 
 Government of Ceded and Conquered 
 Territory. 
 
 Military Governor's Power in Ab- 
 sence OF Legislation. 
 
 IV. Status of; Insular Possessions. 
 V. Application of Constitution to Terri- 
 tories. 
 VI. Status of Inhabitants of Insular 
 Possessions. 
 
 Service or Labour, but shall be dolivered up on Claim of the Party to whom 
 such Service or Labour may be due. 
 
 Section 3. [Clause 1. Admission and formation of new States.] ^ New 
 States may be admitted by the Congress into this Union; but no new State 
 shall be formed or erected within the Jurisdiction of any other State; nor any 
 State be formed by the Junction of two or more States, or parts of States, 
 without the Consent of the Legislatures of the States concerned as well as of 
 the Congress. 
 
 [Clause 2. Power of Congress over territory and other property.] ^ The 
 Congress shall have Power to dispose of and make all needful Rules and Regula- 
 tions respecting the Territory or other Property belonging to the United States; 
 and nothing in this Constitution shall be so construed as to Prejudice any Claims 
 of the United States, or of amy particular State. 
 
 "The power of Congress over the territories 
 of the United States is * * * general and 
 plenary, arising from and incidental to the right 
 to acquire the territory itself and from the 
 power given by the Constitution to make all 
 needful rules and regulations respecting the 
 territory or other property of the United States. 
 It would be absurd to hold that the United 
 States has the power to acquire territory and 
 no power to govern it when acqiiired." (Late 
 Corporation of the Church of Jesus Christ v. 
 U.S., 136U. S.,1.) 
 
 "Tlie power there given [Art. IV, sec. 3, 
 clause 2], whatever it may be, is confined, and 
 was intended to be confined, to the territory 
 which at that time belonged to or was claimed 
 by the United States, and was within their 
 boundaries as stated by the treaty with Great 
 Britain, and can have no influence upon a terri- 
 tory afterwards acquii'ed from a foreign Govern- 
 ment. It wag a special provision for a known 
 and particular territory and to meet a present 
 emergency and nothing more. A brief sum- 
 mary of the history of the times, as well as the 
 careful and measured terms in which the article 
 is framed, will show the correctness of this 
 proposition." (Scott t). Sandford, 19 How., 393; 
 opinion of Chief Justice Taney.) 
 
 "There is certainly no power given by the 
 Constitution to the Federal Government to 
 establish or maintain colonies bordering on the 
 United States, or at a distance, to be ruled and 
 governed at its own pleasure; nor to enlarge its 
 territorial limits in any way except by the 
 admission of new States. * * * But no 
 power is given to acquire a territory to be held 
 and governed permanently in that character. 
 * * * It is acquired to become a State and 
 not to be held as a colony and governed by 
 Congress with absolute authority; and as the 
 propriety of admitting a new State is committed 
 to the sound discretion of Congress, the power 
 to acquire territory for that purpose, to be held 
 by the United States until it is in a suitable 
 condition to become a State upon an equal 
 footing with the other States, must rest upon 
 the same discretion. It is a question for the 
 political department of the Government and 
 not the judicial; and whatever the political 
 department of the Government shall recognize 
 as within the limits of the United States the 
 judicial department is also bound to recognize 
 
 I. Power of Congress Over Territory. 
 
 Sources of power to govern territories. — 
 
 "The term territory as here used is merely 
 descriptive of one kind of property and is 
 equivalent to the word lands. And Congress 
 has the same power over it as over any other 
 property belonging to the United States; and 
 tliis power is vested in Congress without limita- 
 tion, and has been considered the foundation 
 upon which the territorial governments rest." 
 (U. S. V. Gratiot, 14 Pet., 526.) 
 
 "The power of Congress to organize terri- 
 torial governments and make laws for their 
 inhabitants arises not so much from the clause 
 in the Constitution in regard to disposing of and 
 making rules and regulations concerning the 
 territory and other property of the United 
 States as from the ownership of the country' in 
 which its territories are, and the right of ex- 
 clusive sovereignty ■which must exist in the 
 National Government and can be found nowhere 
 else." (U. S. V. Kagama, 118 U. S., 375.) 
 
 The power to govern "is an authority which 
 arises not necessarily from the territorial clause 
 of the Constitution but from the necessities of 
 the case and from the inability of the States to 
 act on the subject." (De Lima v. Bidwell, 
 182 U. S.,1.) 
 
 "The power of governing and legislating for 
 a territory is the inevitable consequence of the 
 right to acquire and hold property. Could tliis 
 possibly be contested, the Constitution of the 
 United States declares that 'Congress shall have 
 the power to dispose of and make all needful 
 rules and regulations respecting the territory 
 and other property belonging to the United 
 States.'" (Sere v. Pitot, 6 Cranch, 332; see 
 also American Ins. Co. v. Canter, 1 Pet., 511.) 
 
 108 
 
Territories. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Sec. IV, Art. 3. 
 
 and to administer in it the laws of tlie United 
 States so far as they apply, and to maintain in 
 the territory the authority and rights of the 
 Government and also the personal rights and 
 rights of property of the individual citizens as 
 secured by the Constitution. All we mean to 
 say on this point is that, as there is no express 
 regulation in the Constitution defining the 
 power which the General Government may 
 exercise over a person or property of a citizen 
 in a territory thus acquired, the court must 
 necessarily look to the provisions and princi- 
 ples of the Constitution and its distribution of 
 powers for the rules and principles by which its 
 decision must be governed." (Scott v. Sandford, 
 19 How., 393; opinion of Chief Justice Taney.) 
 
 II. Government of Ceded and Conquered 
 Territory. 
 
 Government of conquered territory dur- 
 ing war. — See note to Article I, section 8, 
 clause 11. 
 
 Government of conquered and cededi;er- 
 ritory after war. — The government estab- 
 lished by the military commanders, by author- 
 ity of the President as Commander-in-Chief, in 
 upper California, which was conquered by the 
 United States forces during the War with Mex- 
 ico, lawfully continued in existence after the 
 treaty of peace by which the territory was for- 
 mally annexed to the United States, and until 
 Congress had legislated for its government. 
 "The territory had been ceded as a conquest, 
 and was to be preserved and governed as such 
 until the sovereignty to which it had passed had 
 legislated for it. That sovereignty was the 
 United States, under the Constitution, by which 
 power had been given to Congi-ess to dispose of 
 and make all needful rules and regulations re- 
 specting the territory or other property belong- 
 ing to the United States, with power also to 
 admit new States into this Union, with only 
 such limitations as are expressed in the section 
 in which this power is given. The government 
 of which Col. Mason was the executive, had its 
 origin in the lawful exercise of a belligerent 
 right over a conquered territory. It had been 
 instituted during the war by the command of the 
 President of the United States. It was the gov- 
 ernment when the territory was ceded as a con- 
 quest, and it did not cease, as a matter of course, 
 or as a necessary consequence of the restoration 
 of peace. The President might have dissolved 
 it by withdra%ving the Army and Navy officers 
 who administered it, but he did not do so. Con- 
 gress could have put an end to it, but that was 
 not done. The right inference from the inac- 
 tion of both is, that it was meant to be continued 
 until it had been legislatively changed. No 
 presumption of a contrary intention can be 
 made. WTiatever may have been the causes of 
 delay, it must be presumed that the delay was 
 consistent with the true policy of the Govern- 
 ment. And the more so as it was continued un- 
 til the people of the territory met in convention 
 to form a State government, which was subse- 
 quently recognized by Congi'ess under its pow- 
 ers to admit new States into the Union . ' ' (Cross 
 V. Harrison, 16 How., 164.) 
 
 "The opinion [Cross v. Harrison] which is a 
 long one, establishes the three following propo- 
 
 sitions: (1) That under the war power the mili- 
 tary governor of California was authorized to 
 prescribe a scale of duties upon importations 
 from foreign countries to San Francisco and to 
 collect the same through a collector appointed 
 by himself until the ratification of the treaty 
 of peace. (2) That after such ratification du- 
 ties were legally exacted under the tariff laws 
 of the United States, which took effect imme- 
 diately. (3) That the civil government estab- 
 lished in California continued from the neces- 
 sities of the case until Congress provided a 
 Territorial government." (De Limai). Bid well, 
 182 U.S., 1.) 
 
 "We have no doubt, however, that from the 
 necessities of the case, the right to administer 
 the government of Porto Rico continued in the 
 military commander after the ratification of the 
 treaty and until further action by Congress." 
 (Eooley v. U. S., 182 U. S., 222.) 
 
 "By the ratification of the treaty of peace, 
 Porto Rico ceased to be subject to the Crown of 
 Spain and became subject to the legislative 
 power of Congress. But the civil government 
 of the United States can not extend immedi- 
 ately and of its own force over conquered and 
 ceded territory. Theoretically Congress might 
 prepare and enact a scheme of civil government 
 to take effect immediately upon the cession, 
 but practically there always have been delays 
 and always will be. Time is required for a 
 study of the situation and for the matiuing and 
 enacting of an adequate scheme of civil govern- 
 ment. In the meantime, pending the action of 
 Congi-ess, there is no civil power under our sys- 
 tem of government, not even that of the Presi- 
 dent as ciAT.1 executive, which can take the 
 place of the government which has ceased to 
 exist by the cession. Is it possible that under 
 such circumstances there must be an interreg- 
 num? We think cleai'ly not. The authority 
 to govern such ceded territory is found in the 
 laws applicable to conquest and cession. That 
 authority is the military power under the con- 
 trol of the President as Commander in Chief." 
 (Santiago v. Nogueras, 214 U. S., 260.) 
 
 Guam and Tutuila. — "The political status 
 of these islands is anomalous. Neither the Con- 
 stitution nor the laws of the United States have 
 been extended to them, and the only adminis- 
 trative authority existing in them is that de- 
 rived mediately or immediately from the Presi- 
 dent as Commander in Chief of the Army and 
 Navy of the United States. On December 23, 
 1898, the President placed the island of Guam 
 under the control of the Department of the 
 Navy with direction that the Secretary 'will 
 take such steps as may be necessary to establish 
 the authority of the United States and to give 
 it the necessary protection and government'; 
 and in pursuance of the authority thus conferred 
 the then Secretary appointed a naval officer as 
 'naval governor of the island of Guam, this duty 
 being in addition to yoiu" (his) duty as com- 
 mander of a division of the Asiatic Fleet.' And 
 on February 19, 1900, the President likewise 
 turned over to your [Navy] department the 
 control of the island of Tutuila and the other 
 islands of the Samoan group belonging to the 
 United States, for the purposes of a naval sta- 
 tion. A naval officer was detailed by the Sec- 
 retary to assume command of such station, the 
 
 109 
 
Art. IV, Sec. 3. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Territories. 
 
 order concludinG; as follows: 'Your position as 
 coinmaiulaiit will invest you with authority 
 over the islands in the group within the limits 
 of the station. ' In the one case, therefore, a 
 naval governor was apjiointed, and in the other 
 the commandant was invested with guberna- 
 torial functions over the islands in the group 
 embraced within tlie limits of the station. ' 
 (25 Op. Atty. Gen., 292, holding that commis- 
 sions m the usual form may bo issued by the 
 President to the naval officers serving as gov- 
 ernors of these islands; see also 25 Op. Atty. 
 Gen., 59, 128, 242.) 
 
 "Guam is an unorganized territory of small 
 extent, concerning which Congress has ab- 
 stained from legislating almost wholly; * * * 
 Congress will doubtless, at the proper time, take 
 up the subject and legislate for Guam, either by 
 special laws fitted to its situation and condition, 
 or by extending to it, as it did in the case of 
 Alaska, Porto Rico, and Hawaii, the general 
 laws of the United States not locally inappli- 
 cable." (25 Op. Atty. Gen., 128; see also An- 
 nual lleport of Secretary of the Navy, 1907, pp. 
 25, 2G, recommending that Congress by legis- 
 lation provide a system of government for these 
 islands.) 
 
 In Guam "a complete government has been 
 instituted and conducted by the Navy Depart- 
 ment through an officer of the Navy appointed 
 as governor by the Secretary and commissioned 
 by the President under an order of President 
 McKinley * * *. This order was dated 
 December 23, 1898, and of course was an exer- 
 cise of the war power, and the executive gov- 
 ernment thus established seems to have sur- 
 vived and continued since the ratification of 
 the treaty, with the silent acquiescence of Con- 
 gress, in accordance with the doctrine that a 
 temporary and provisional government of this 
 nature continues ex necessitate rei until further 
 action by Congress. (Dooley v. United States, 
 182 U. S., 222, citing Cross i;. Harrison, 16 How., 
 164.) The Guam government did not grow out 
 of a military reservation, but was a military 
 government of the entire island in consequence 
 of occupation and conquest from Spain." (26 
 Op. Atty. Gen., 98.) 
 
 The Supreme Court of the District of Colum- 
 bia has no jurisdiction in a habeas corpus pro- 
 ceeding instituted against the Secretary of the 
 Navy to inquire into the grounds of the deten- 
 tion of a person in the island of Guam pursuant 
 to the sentence of the civil court established in 
 that island. "We are compelled to give a neg- 
 ative answer to the question, notwithstanding 
 it may possibly be that the party on whose be- 
 half the petition is presented is restrained of 
 his liberty under the order of a tribunal un- 
 known to the Constitution and law, and is with- 
 out certain remedv in any other com-t." (Mc- 
 Gowan v. Moody, 22 App. D. C, 148.) 
 
 Guam having been ceded to the United 
 States by the Treaty of Paris of December 10, 
 1898, was necessarily governed by the military 
 power of this country because the island has 
 never been organized as a Territory. Those 
 acts of Congress which provide for the punish- 
 ment of offenses not specially provided for by 
 any law of the United States and which also 
 provide for the trial of such offenses in courts 
 of the United States Territories provided with 
 
 organized Territorial government do not ex- 
 clude the exercise of the military authority to 
 punish offenders bv virtue of the regulations. 
 (Woog V. U. S.,48Ct. Cls., 80.) 
 
 The existing governments in Guam and 
 Samoa have been recognized by Congress in 
 various enactments, as, for example, the act of 
 June 28, 1906 (34 Stat., 552), providing for the 
 acknowledgment of deeds, etc., affecting lands 
 in the District of Columbia or any territory 
 of the United States. 
 
 III. Military Governor's Power in Ab- 
 sence OF Legislation. 
 
 Authority of military commander. — "It 
 
 is a general rule of public law, recognized and 
 acted upon by the United States, that when- 
 ever political jinisdiction and legislative power 
 over any territory are transferred from one na- 
 tion or sovereign to another, the municipal laws 
 of the country — that is, laws which are intended 
 for the protection of private rights — continue in 
 force until abrogated or changed by the new 
 government or sovereign. * * * As a matter 
 of course, all laws, ordinances, and regulations 
 in conflict with the political character, institu- 
 tions, and constitution of the new government 
 are at once displaced. Thus * * * the laws 
 of a countrj' in support of an established re- 
 ligion or abiddging the freedom of the press, or 
 authorizing cruel and luiusual punisliments and 
 the like would at once cease to be of ol^ligatory 
 force, mthout any declaration to that effect; 
 and the laws of the country on other subjects 
 would necessarily be superseded by existing 
 laws of the new government upon the same 
 matters. But with respect to other laws, affect- 
 ing the possession, use, and transfer of property 
 and designed to secure good order and peace in 
 the community and promote its health and 
 prosperity, wliich are strictly of a municipal 
 character, the rule is general that a change of 
 government leaves them in force until by direct 
 action of the new government they are" altered 
 or repealed." (Cliicago, etc., R. Co. v. 
 McGlinn, 114 U. S., 547.) 
 
 [The joint resolution of Congress pro\dding 
 for the annexation of the Hawaiian Islands as a 
 part of the territory of the United States con- 
 tained a prov-ision that "the municipal legis- 
 lation of the Hawaiian Islands * * * not 
 inconsistent with this joint resolution nor con- 
 trary to the Constitution of the United States, 
 nor to any existing treaty of the United States, 
 shall remain in force until the Congress of 
 the United States shall otherwise determine." 
 Held, that the laws of Hawaii continued in 
 effect, which pro\'ided for the trial of criminal 
 offenses without compliance wdth the require- 
 ments of the Federal Constitution as to present- 
 ment and indictment by grand jury and trial 
 by jury. (Hawaii v. Mankichi, 190 U. S., 
 
 197.)] 
 
 "\\Tiile his [military commander's] power is 
 necessarily despotic, this must be understood 
 rather in an admin istratiA'e than in a legislative 
 sense. ^Miile in legislating for a conquered ter- 
 ritory he may disregard the laws of that country, 
 lie is not wholly above the laws of his owii. 
 For instance, it is clear that wliile a military 
 commander dining the Civil War was in occupa- 
 
 110 
 
Territories. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Art. IV, Sec. 3. 
 
 tion of a Southern port he could impose duties 
 upon merchandise arriving from abroad, it 
 would hardly be contended that he could also 
 impose duties upon merchandise arriving from 
 ports of his own country. His power to admin- 
 ister would be absolute, but his power to legis- 
 late would not be without certain restrictions— 
 in other words, they would not extend beyond 
 the necessities of the case." (Dooley v. U. S., 
 182 U. S.,222.) 
 
 "The authority of the President as Com- 
 mander in Chief to exact duties upon imports 
 from the United States [into Porto Rico] ceased 
 with the ratification of the treaty of peace, and 
 her right to the free entry of goods from the 
 Ijorts of the United States continued until Con- 
 gres.s should constitutionally legislate upon the 
 subject." (Dooley v. U. S., 182 U. S.,~236.) 
 
 An order issued by the officer in command of 
 the forces of the United States in South Carolina 
 during the period of reconstruction, wholly an- 
 nulling a decree rendered by a court of chancery 
 in that State in a case within its jurisdiction, 
 was void. It was an arbitrary stretch of author- 
 ity, needful to no good end that can be im- 
 agined. Whether Congress could have con- 
 ferred the power to do such an act is a question 
 not presented. "It is an unbending rule of 
 law that the exercise of miUtary power where 
 the rights of the citizen are concerned shall 
 never be pushed beyond what the exigency 
 requires." (Raymond v. Thomas, 91 U. S., 
 712.) 
 
 "The instructions to the governor [of Guam], 
 dated January 12, 1899, prior to the ratification 
 of the treaty of peace with Spain, contained the 
 following: 'Within the absolute domain of 
 naval authority, which necessarily is and must 
 remain supreme in the ceded territory imtil the 
 legislation of the United States shall otherwise 
 provide, the municipal laws of the territory, in 
 respect to private rights and property and the 
 repression of crime, are to be considered as con- 
 tinuing in force and to be administered by the 
 ordinary tribunals as far as practicable. The 
 operations of civil and municipal government 
 are to be performed by such officers as may 
 accept the supremacy of the United States by 
 taking the oath of allegiance or by officers 
 chosen as far as may be practicable from the 
 inhabitants of the island.' These instructions 
 seem not to have been superseded in June and 
 July, 1900. Their recognition of the continu- 
 ance in force of the munici])al laws of the terri- 
 tory was not intended as more than a recogni- 
 tion of what would have been presumed in the 
 absence of instructions and can not be regarded 
 as intended to deny the power of the governor 
 to alter the laws. _ They were continued in force 
 as to the inhabitants among themselves, but 
 not to control the governor; that is to say, the 
 government itself. His power as military gov- 
 ernor was intended to be plenary. He had 
 authority to do what the exigencies of military 
 government required, and held the supreme 
 legislative, executive, and judicial authority 
 of the island. At that time, in that distant and 
 little-known island, the President could not do 
 otherwise than leave him a large discretion, 
 and his acts should not be held void upon 
 strictly technical reasoning." (25 Op. Atty. 
 Gen., 59.) 
 
 The naval governor of Guam "exercises ple- 
 nary powers, sul^ject to the supervision of the 
 Secretary of the Navy and, of course, of the 
 President, over all public affairs of the island 
 of Guam, including the organization and pro- 
 cedure of the local courts in civil and criminal 
 matters;" his authority extends "to the grant- 
 ing of reprieves and pardons, one of the highest 
 prerogatives of sovereignty and executive 
 power," and includes "the modification of laws 
 and the abolition and institution of courts;" 
 he "has authority to prescribe the form of penal 
 code to be administered and to modify said 
 code at his pleasm-e, subject to the approval of 
 his superiors." (File 9351-976, Dec. 3, 1910.) 
 
 In a case in which an enlisted man of the 
 Marine Corps was sentenced by the civil courts 
 in Guam to "banishment for six months," this 
 being an undesirable punishment to impose 
 upon members of the Government forces, the 
 governor of Guam may be directed by the Sec- 
 retary of the Navy to remit that portion of the 
 sentence in the case presented and "to issue 
 immediately the necessary order or decree 
 abolishing the punishment of banishment as an 
 appropriate sentence to be adjudged by the 
 civil courts of said island in the cases of all 
 persons in the naval or military service of the 
 United States." (File 9351-976, Dec. 3, 1910.) 
 
 In the absence of congressional legislation, 
 authority of the naval governor of Guam is 
 supreme. He is accordingly authorized to des- 
 ignate place of confinement for prisoner of the 
 naval government of Guam, within territory 
 under sovereignty of the United States. His 
 action in designating a prison in the Philippine 
 Islands as place of confinement meets with 
 approval of the Secretary of the Navy in the 
 case of a civilian convicted by the courts of 
 Guam of misappropriation of pul^lic funds 
 while postmaster at Guam. (File 9351-1436:4, 
 June 3, 1915.) 
 
 IV. Status of Insular Possessions, 
 
 Status of conquered and ceded territory 
 after war. — Military possession of foreign ter- 
 ritory is not of itself sufficient to change its 
 foreign character. (See cases noted undei 
 Art. I, sec. 8, clause 11, "Power to acquire 
 territory.") "Nor is a treaty ceding such ter- 
 ritory sufficient without a surrender of posses- 
 sion." But there is no authority "for holding 
 that a district ceded to and in the possession of 
 the United States remains for any purpose a 
 foreign country. Both these conditions must 
 exist to produce a change of nationality for 
 revenue purjwses." (De Lima v. Bid well, 182 
 U. S., 1, as to status of Porto Rico; see also 
 Dooley v. U. S., 182 U. S., 236; and Downes v. 
 Bidwell, 182 U. S., 263.) 
 
 "The theory that a country remains foreign 
 with respect to the tariff laws until Congress 
 has acted by embracing it within the customs 
 union presupposes that a country may be 
 domestic for one purpose and foreign for an- 
 other. It may undoubtedly become necessary 
 for the adequate administration of a domestic 
 territory to pass a special act providing the 
 proper machinery and officers, as the President 
 would have no authority, except under the war 
 power, to administer it himself; but no act is 
 necessary to make it domestic territory if once 
 
 111 
 
Art. IV, Sec. 3. 
 
 PL 1. THE CONSTITUTION. 
 
 Territories. 
 
 it has been ceded to the United States." (De 
 Lima r. Bidwell, 182 U. S., 1.) 
 
 "Tlie rhilipj)ines, like Porto llico, became 
 by virtue of the treaty ceded conquered terri- 
 tory, or territory ceded by way of indemnity. 
 Tlie territory ceased to be situated as Castine 
 was when occupied by the British forces in the 
 '.Var of 1812, or as Tanipico was when occupied 
 by the troops of the United States (hiring the 
 Mexican ^\'ar, 'cases of temporary possession 
 of territory by hiwful and regular governments 
 at war with the country of which tlie territory 
 so possessed was a part.' * * *. The Phil- 
 ippines were not simply occupied, but ac- 
 quired, and, having been granted and delivered 
 to the United States by their former master, 
 were no longer under the sovereignty of any 
 foreign nation." (Fourteen Diamond Rings v. 
 U. S., 183 U. S., 177; see also Lincoln v. U. S., 
 197 U. S.,427.)_ 
 
 A port in the island of Guam is not a "port of 
 the United States" within the meaning of sec- 
 tion 4347, Revised Statutes, as amended, pro- 
 hibiting the transportation of merchandise in 
 foreign bottoms from one port of the United 
 States to another port of the United States. 
 This legislation has not been expressly ex- 
 tended to include trade with Guam, which is an 
 unorganized territory of small extent, concern- 
 ing which Congress has abstained from legis- 
 lating almost entirely; "and I do not think, in 
 view of this inaction of the legislative body, 
 that we should search among old statutes for 
 fragments of law which we can, by construc- 
 tion, apply to the island." (25 Op. Atty. Gen., 
 128.) 
 
 V. Application of Constitution to Terri- 
 tories. 
 
 Whether constitutional limitations re- 
 strict Congress in legislating for Territo- 
 ries. — "The people of the United States, as 
 sovereign owners of the National Territories, 
 have supreme power over them and their 
 inhabitants. In the exercise of this sovereign 
 dominion they are represented by the Gov- 
 ernment of the United States, to whom all the 
 powers of government over that subject have 
 been delegated, subject only to such restric- 
 tions as are expressed in the Constitution, or 
 are necessarily implied in its terms, or in the 
 purposes and objects of the power itself; for 
 it may well be admitted in respect to this as 
 to every power of society over its members, 
 that it 18 not absolute and unlimited." (Mur- 
 phy V. Ramsey, 114 U. S., 15.) 
 
 "Doubtless Congress, in legislating for the 
 Territories, would be subject to those funda- 
 mental limitations in favor of personal rights 
 which are formulated in the Constitution and 
 its amendments; but these limitations would 
 exist rather by inference and the general spirit 
 of the Constitution, from which Congress 
 derives all its powers, than by any express 
 and distinct application of its provisions." 
 (Mormon Church Case, 136 U. S., 1; American 
 Publishing Co. v. Fisher, 166 U. S., 464.) 
 
 "WTiile, therefore, there is no express or 
 implied limitation on Congress in exercising 
 its power to create local governments for any 
 
 or all of the Territories, by which that body 
 is restrained from the widest latitude of dis- 
 cretion, it does not follow that there may not 
 be inherent, although unexpressed, principles 
 which are the basis of all free governments, 
 which can not bo with immunity transcended. 
 * * * But this does not suggest that every 
 express limitation of the Constitution which is 
 applicable has not force, but only signifies 
 that even in cases where there is no direct 
 command of the Constitution which applies, 
 there may nevertheless be restrictions of so 
 fundamental a nature that they can not be 
 transgressed, although not expressed in so many 
 words in the Constitution." (Downes v. Bid- 
 well, 182 U. S., 244.) 
 
 " LFndoubtedly there are general prohibitions 
 in the Constitution in favor of the liberty and 
 property of the citizen, which are not mere 
 regulations as to form and manner in which a 
 conceded power may be exercised, but which 
 are absolute denials of all authority under any 
 circumstances or conditions, to do particular 
 acts. In the nature of things, limitations of 
 this character can not, under any circumstances, 
 be transcended, because of complete absence 
 of power." (Downes v. Bidwell, 182 U. S., 
 244.) 
 
 "There is a clear distinction between such 
 prohibitions as go to the very root of the power 
 of Congress to act at all, irrespective oi time 
 and place, and such as are operative only 
 'throughout the United States,' or among the 
 several States. Thus, when the Constitution 
 declares that 'no bill of attainder or ex post 
 facto law shall be passed,' and that 'no title 
 of nobility shall be granted by the United 
 States,' it goes to the competency of Congress 
 to pass a bill of that description. Perhaps the 
 same remark may be applied to the fifth amend- 
 ment, that 'Congress shall make no law respect- 
 ing an establishment of religion or prohibiting 
 the free exercise thereof; or abridging the 
 freedom of speech; or of the press; or the right 
 of the people to peacefully assemble and to 
 petition the Government for a redress of 
 grievances.' We do not wish, however, to be 
 understood as expressing an opinion how far 
 the Bill of Rights contained in the first eight 
 amendments is of general and how far of local 
 application. * * * We suggest, without 
 intending to decide, that there may be a dis- 
 tinction between certain natural rights enforced 
 in the Constitution by proliibitions against 
 interference with them, and what may be 
 termed artificial or remedial rights which are 
 peculiar to our system of jurisprudence. Of 
 the former class are the rights to one's own 
 religious opinions and to a public expression of 
 them, or, as sometimes said, to worship God 
 according to the dictates of one's own con- 
 science; the right to personal liberty and indi- 
 vidual property, to freedom of speech and of 
 the press; to free access to courts of justice, to 
 due process of law, and to an equal protection 
 of the laws; to immunities from unreasonable 
 searches and seizures, as well as cruel and un- 
 usual punishments; and to such other immu- 
 nities as are indispensable to a free govern- 
 ment." (Downes v. Bidwell, 182 U. S., 244, 
 opinion Mr. Justice Brown.) 
 
 112 
 
Territories. 
 
 Ft. 1. THE CONSTITUTION. 
 
 Art. IV, Sec. 3. 
 
 To hold that the prohibitions of the fourth 
 amendment, against imreasonable searches and 
 seizures, is a restriction upon Congress and yet 
 not a restriction upon a government created by 
 Congress, would be a contradiction of terms. 
 Accordingly, held that tlie fourth amendment 
 is applicable to territorial governments. (Ter- 
 ritory V. Cutinola, 4 N. Mex., 305, 14 Pac, 809.) 
 
 "AMiatever may be finally decided by the 
 American people as to the status of these is- 
 lands and their inhabitants — whether they shall 
 be introduced into the sisterhood of States or be 
 permitted to form independent governments- 
 it does not follow that in the meantime, await- 
 ing that decision, the people are in the matter 
 of personal rights unprotected by the pro\isions 
 of our Constitution and subject to the nierely 
 arbitrary control of Congress. Even if re- 
 garded as aliens, they are entitled, under the 
 principles of the Constitution, to be protected 
 in life, liberty, and property. Tlus has been 
 frequently held by tliis court in respect to the 
 Chinese, even when aliens, not possessed of the 
 political rights of citizens of the United States. 
 * * * We do not desire, however, to antici- 
 pate the difficulties which would naturally 
 arise in this connection, but merely to disclaim 
 any intention to hold that the inhabitants of 
 these territories are subject to an unrestrained 
 power on the part of Congress to deal with them 
 upon the theory that they have no rights which 
 it is bound to respect." (Downes •?;. Bidwell, 
 182 U. S., 244, opinion Mr. Justice Brown.) 
 
 "The Constitution speaks, not simply to the 
 States in their organized capacities, but to all 
 peoples, whether of States or Territories, who 
 are subject to the authoritv of the United 
 States." (Downes v. Bidwell, 182 U. S., 244, 
 opinion Mr. Justice Harlan, dissenting.) 
 
 "There is nothing in the history of the Con- 
 stitution or of the original amendments to 
 justify the assertion that the people of this dis- 
 trict [District of Columbia] may be lawfully 
 deprived of the benefit of any of the constitu- 
 tional guaranties of life, liberty, and property — 
 especially of the privilege of trial by jury in 
 criminal cases." (Callan v. Wilson, 127 U. S., 
 540; see also Capital Traction Co. v. Hof, 174 
 U. S., 5.) 
 
 SeeRassmussenv.U. S. (197U.S., 522), hold- 
 ing the provisions of the Constitution appli- 
 cable to Alaska; Neely v. Henkel (180 U. S., 
 122), holding Constitution not applicable to 
 Cuba during military occupation by United 
 States; Hawaii v. Mankichi (190 U. S., 211), as 
 to Hawaii, holding that "'most, if not all, the 
 pri\'ileges and immunities contained in the 
 Bill of Rights of the Constitution were intended 
 to apply from the moment of annexation;" see 
 also Dorr r. U. S. (195 U. S., 138) as to Philip- 
 pines; and Reynolds v. U. S. (98 U. S., 145) and 
 Wilkerson v. Utah (99 U.S., 133) as to Territory 
 of Utah. 
 
 By section 1891, Revised Statutes, it was 
 provided that "The Constitution and all laws 
 of the United States which are not locally inap- 
 plicable shall have the same force and effect 
 within all the organized Territories, and in 
 every Territory hereafter organized, as else- 
 where within the United States." ["Guam is 
 an unorganized territory * * *." (25 Op. 
 
 Atty. Gen., 128.) So also are the Virgin Is- 
 lands of the United States, notwithstanding 
 the act of March 3, 1917 (39 Stat., 1132), pro- 
 viding a temporary government therefor. (32 
 Op. Atty. Gen., 118, construing sec. 1860, R. 
 S., as amended.)] 
 
 When the Constitution has once been form- 
 ally extended by Congress to Territories, neither 
 Congress nor the Territorial legislature can enact 
 laws inconsistent therewith. (Downes v. Bid- 
 well, 182 U. S., 270.) 
 
 For decisions as to whether constitutional 
 limitations restrict Congress in legislating for 
 the Na^'y, see note to Article 1, section 8, 
 clause 14. 
 
 VI. Status of Inhabitants of Insular 
 Possessions. 
 
 Citizenship in territories. — The treaty of 
 peace with Spain, ceding to the United States 
 Porto Rico, Guam, and the Philippine Islands, 
 provided that "the civil rights and political 
 status of the native inhabitants of the terri- 
 tories hereby ceded to the United States shall 
 be determined by Congress." The inhabitants 
 of the Philippine Islands were declared "citi- 
 zens of the Philippine Islands and as such en- 
 titled to the protection of the United States." 
 (Act July 1, 1902, 32 Stat., 691.) The inhabit- 
 ants of Porto Rico were declared "citizens of 
 Porto Rico and as such entitled to the protec- 
 tion of the United States." (Act Apr. 12, 1900, 
 31 Stat., 77.) The naturalization act of June 29, 
 1906, section 30 (34 Stat., 606), provided for the 
 naturalization, upon compliance therewith, of 
 persons "not citizens who owe permanent alle- 
 giance to the United States." Inhabitants of 
 Guam desiring to become citizens of the United 
 States may be naturalized by application to a 
 court of competent jurisdiction in the United 
 States, but can not be naturalized by any 
 court in Guam. (File 262.52-90, Feb. 27, 1914, 
 see also file 26252-96, Feb. 10, 1915; compare 
 29 Op. Atty. Gen., 521, as to Porto Rico, and 
 see note to amendments, Article XIV.) The 
 citizen.'? of Hawaii were made citizens of the 
 United States by act of April 30, 1900 (31 Stat., 
 141). 
 
 A citizen of Porto Rico is not eligible for 
 appointment as second lieutenant in the Marine 
 Corps (file 6730-04; as to eligibility for employ- 
 ment at navy yards, see file 3194-3 and 3194-4; 
 and seeU. S. v. Bowyer, 25 App. D. C, 121.) 
 
 By act of March 2, 1917 (39 Stat., 953, sec. 
 5), certain "citizens of Porto Rico " were de- 
 clared citizens of the United States and pro- 
 vision was made for the naturalization of others. 
 
 Certain Danish citizens residing in the Vir- 
 gin Islands of the United States were to be 
 held "to have accepted citizenship in the 
 United States," and provision was made for 
 the naturalization of others by convention be- 
 tween the United States and Denmark, pro- 
 claimed January 25, 1917 (39 Stat. 1706, 1712). 
 (See file 26252-143:3, July 14, 1919.) 
 
 Native inhabitants of island possessions 
 are not "aliens." — "Citizens of Porto Rico, 
 whose permanent allegiance is due to_ the 
 United States; who live in the peace of the 
 dominion of the United States; the organic law 
 
 113 
 
Art. VI. 
 
 PL 1. THE CONSTITUTION. 
 
 Validity of Debts. 
 
 of whose domicile was enacted by the United 
 States and is enforced through officials sworn 
 to support the Constitution of the United 
 States, are not 'aliens' and upon their arrival 
 by water at the ports of our mainland are not 
 'alien immigrants' within the intent and mean- 
 ing of the act of 1891" providing for detention 
 and deportation under certain conditions. 
 (Gonzales v. Williams, 192 U. S., 1.) 
 
 Naturalization of natives. — "Citizens of 
 the Philippine Islands or of Porto Rico, while 
 not citizens of the United States, are not aliens, 
 and, prior to the passage of the act of 1906 [34 
 Stat . , 596] , were not capable of being naturalized 
 for two reasons: First, the naturalization laws 
 of the United States applied only to aliens; 
 and, second, they required a renunciation of 
 former allegiance * * *, The effect of sec- 
 tion 30 [act of 1906] was to make applicable to 
 
 citizens of the Philippine Islands and Porto 
 Rico those provisions which had theretofore 
 applied only to aliens * * *. Congress did 
 not intend to extend the privilege of citizen- 
 ship to those who had become citizens of the 
 Philippine Islands under the act of 1902, unless 
 they were free white persons or of African 
 nativity or descent," as required by section 
 2109, Revised Statutes. Accordingly, held that 
 "a citizen of the Philippine Islands who ethno- 
 logically was one-fourth white and three-fourths 
 brown or Malay could not be naturalized," and 
 the fact that he had service in the Navy did 
 not affect his status under section 2169, Revised 
 Statutes. (In re Alverto, 198 Fed. Rep., 688; 
 see also note to amendments, Article XIV and 
 see naturalization act of May 9, 1918.) 
 
 For other cases, as to citizenship in gen- 
 eral, see note to amendments, Article XIV. 
 
 Section 4. [States guaranteed protection and republican form of govern- 
 ment.] The United States shall guarantee to every State in this Union a Republi- 
 can Form of Government, and shall protect each of them against Invasion; 
 and on Apphcation of the Legislature, or of the Executive (when the Legis- 
 lature cannot be convened) against domestic Violence. 
 
 TJse of naval vessel loaned to State for 
 training of naval militia. — "In accordance 
 with the pro\dsions of the Constitution and of 
 the laws enacted in pursuance thereof, the Presi- 
 dent, incases not affecting the execution of the 
 laws or the protection of the property of the 
 United States, may use the military or naval 
 forces of the United States within the boundaries 
 of the several States only on application of the 
 legislature of the State, or, in case the legislature 
 cannot be convened, on application of the gov- 
 ernor. In other words, it is considered that the 
 President, except as indicated, is not legally 
 authorized to use, or permit to be used, the 
 naval forces under his command to assist any 
 particular State in the maintenance of law and 
 order within its boundaries. As a naval vessel 
 
 is one of the integral and most important units 
 going to make up the naval forces of the United 
 States, it would seem that this proliibition to the 
 use of the naval forces would extend to such an 
 important part thereof as a naval vessel that 
 is armed and equipped for war. * * * 
 Should occasion ever arise in the future making 
 desirable the use of the Montgomery for the pur- 
 poses referred to by the State, [to quell "riots, 
 insurrection, or defiance of civil law witliin the 
 State limits " ] it is considered that the only law- 
 ful manner in which the vessel could be so used 
 would be in accordance with the provisions of 
 the Constitution, upon 'application of the legis- 
 lature or of the executive (when the legislature 
 cannot be convened)' made to the President." 
 (File 4570-194, Mar., 15, 1915.) 
 
 ARTICLE V. 
 
 [Procedure to amend Constitution,] The Congress, whenever two-thirds of 
 both Houses shall deem it necessary, shall propose Amendments to this Con- 
 stitution, or, on the Application of the Legislatures of two-thirds of the several 
 States, shall caU a Convention for proposing Amendments, which, in either 
 Case, shall be vahd to all Intents and Purposes, as part of this Constitution, 
 when ratified by the Legislatures of three-fourths of the several States, or by 
 Conventions in three-fourths thereof, as the one or the other Mode of Ratifica- 
 tion may be proposed by the Congress; Provided that no Amendment which 
 may be made prior to the Year One thousand eight hundred and eight shall in 
 any Manner affect the first and fourth Clauses in the Ninth Section of the first 
 Article ; and that no State, without its Consent, shall be deprived of it's equal 
 Suffrage in the Senate. 
 
 ARTICLE VI. 
 
 [Clause 1. Validity of debts and engagements.] ^ All Debts contracted and 
 Engagements entered into, before the Adoption of this Constitution, shall be as 
 
 114 
 
Ratification. Pt. 1. THE CONSTITUTION. Art. VII. 
 
 valid against the United States under this Constitution, as under the Confed- 
 eration. 
 
 [Clause 2. Supreme law of the land.] ^ This Constitution, and the Laws of 
 the United States which shaU be made in Pursuance thereof; and all Treaties 
 made, or which shall be made, under the Authority of the United States, shall 
 be the supreme Law of the Land; and the Judges in every State shall be bound 
 thereby, any Thing in the Constitution or Laws of any State to the Contrary 
 notwithstanding. 
 
 [Clause 3. Oaths of public officers; no religious test.] ^ The Senators and 
 Representatives before mentioned, and the Members of the several State 
 Legislatures, and all executive and judicial Officers, both of the United States 
 and of the several States, shall be bound by Oath or Affirmation, to support 
 this Constitution ; but no religious Test shall ever be required as a Qualification 
 to any Office or public Trust under the United States. 
 
 ARTICLE VII. 
 
 [Ratification of Constitution.] The Ratification of the Conventions of nine 
 States shall be sufficient for the Establishment of this Constitution between 
 the States so ratifying the Same. 
 
 Done in Convention by the Unanimous Consent of the States present the 
 Seventeenth Day of September in the Year of our Lord one thousand seven 
 hundred and Eighty seven and of the Independence of the United States of 
 America the Twehth. In Witness whereof We have hereunto subscribed 
 our Names, 
 
 Go WASHINGTON 
 Presidt and deputy from Virginia 
 
 New HampsMre. 
 John Langdon Nicholas Oilman 
 
 Massachusetts. 
 Nathaniel Gorham Rueus Ejng 
 
 Connecticut. 
 Wm Saml Johnson ~ Roger Sherman 
 
 New YorJc. 
 
 Alexander Hamilton 
 
 New Jersey. 
 
 Wil: Livingston Wm Patterson 
 
 David Brearley, Jona: Dayton 
 
 Pennsylvania. 
 
 B. Franexin Thomas Mifflin 
 
 Robt. Morris Geo. Clymer 
 
 Thos. Fitzsimons Jared Ingersoll 
 
 James Wilson Gouv Morris 
 
 115 
 
First Amendment. 
 
 Geo: Read 
 John Dickinson 
 Jaco: Broom 
 
 James McHenry 
 Danl Carroll 
 
 John Blair — 
 
 Wm Blount 
 Hu Williamson 
 
 J. Rutledge 
 Charles Pinckney 
 
 William Few 
 Attest: 
 
 PL 1. THE CONSTITUTION. 
 Delaware. 
 
 Freedom of Speech. 
 
 Gunning Bedford jun 
 Richard Bassett 
 
 Maryland. 
 
 Dan: of St Thos Jenifer 
 
 Virginia. 
 
 James Madison Jr. 
 North Carolina. 
 
 RiCHD DOBBS SpAIGHT, 
 
 South Carolina. 
 
 Charles Cotesworth Pinckney 
 Pierce Butler. 
 
 Georgia. 
 
 Abr Baldwin 
 WILLIAM JACKSON, Secretary. 
 
 Articles in Addition To, and Amendment Of, the Constitution of 
 THE United States of America, Proposed by Congress, and Ratified 
 by the Legislatures of the Several States, Pursuant to the Fifth 
 Article of the Original Constitution. 
 
 [ARTICLE I.] 
 
 [Freedom of religion, speech, and press ; and right of assembly and petition.] 
 Congress shall make no law respecting an establishment of religion, or pro- 
 hibiting the free exercise thereof; or abridging the freedom of speech, or of the 
 press; or the right of the people peaceably to assemble, and to petition the 
 Government for a redress of grievances. 
 
 The Bill of Rights.— "The law is perfectly 
 well settled that the first 10 amendments of the 
 Constitution, commonly known as the Bill of 
 Rights, were not intended to lay down any 
 novel principles of government, but simply to 
 embody certain guaranties and immunities 
 which we had inherited from our English an- 
 cestors, and which had from time immemorial 
 been subject to certain well recognized excep- 
 tions arising from the necessities of the case." 
 (Robertson v. Baldwin, 165 U. S., 275.) 
 
 "These securities in personal liberty, thus 
 embodied , were such as wisdom and experience 
 had demonstrated to be necessary for the pro- 
 tection of those accused of crime. * * * 
 Time has proven the discernment of our ances- 
 tors. * * * Those great and good men fore- 
 
 saw that troublous times would arise when ruiers 
 and people would become restive under restraint 
 and seek by sharp and decisive measures to 
 accomplish ends deemed just and proper; and 
 that the principles of Constitutional liberty 
 would be in peril unless established by irre- 
 pealable law. * * * The Constitution of 
 the United States is a law for rulers and people, 
 equally in war and in peace. * * * No 
 doctrine involving more pernicious conse- 
 quences was ever invented by the wit of man 
 than that any of its provisions can be suspended 
 during any of the great exigencies of govern- 
 ment." (Ex parte Milligan, 4 Wall., 3, 120. 
 But see note to Art. I, sec. 8, clause 11, "Mili- 
 tary jurisdiction over civilians in time of war," 
 and Art. I, sec. 9, clause 2.) 
 
 116 
 
Searches and Seizures. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Fourth Amendment. 
 
 [ARTICLE II.] 
 
 [The right to bear arms.] A well regulated Militia, being necessary to the 
 security of a free State, the right of the people to keep and bear Arms, shall 
 not be infringed. 
 
 reserved military' force of the National Govern- 
 ment, as well as in view of its general powers, 
 the State can not prohibit the people from 
 keeping and bearing arms, so as to deprive the 
 United States of their rightful resource for main- 
 taining the public security." (Presser v. Illi- 
 nois, 116 U. S., 252.) 
 
 "The provision of the Second Amend- 
 ment to the Constitution, that 'the right of the 
 people to keep and bear arms shall not be in- 
 fringed,' is a limitation only on the power of 
 Congress and the National Government, and not 
 of the States. But in view of the fact that all 
 citizens capable of bearing arms constitute the 
 
 [ARTICLE III.j 
 
 [Quartering of soldiers in houses.] Xo Soldier shall, in time of peace be 
 quartered in any house, without the consent of the Owner, nor in time of war, 
 but in a manner to be prescribed by law. 
 
 [ARTICLE IV.] 
 
 [Security from unreasonable searches and seizures.] The right of the people 
 to be secure in their persons, houses, papers, and effects, against unreasonable 
 searches and seizures, shall not be violated, and no Warrants shaU issue, but 
 upon probable cause, supported by Oath or affirmation, and particularly describ- 
 ing the place to be searched, and the persons or things to be seized. 
 
 Unreasonable searches and seizures. — 
 
 "The constitutional guaranties of the right of 
 the people to be secure in their papers against 
 unreasonable searches and seizures extends to 
 their papers, thus closed against inspection, 
 wherever they may be. Whilst in the mail 
 they can only be opened and examined under 
 like warrant, issued upon similar oath or affirma- 
 tion and particularly describing the thing to be 
 seized, as is required when papers are subjected 
 to search in one's own household. No law of 
 Congress can place in the hands of officials 
 connected with the postal service any authority 
 to invade the secrecy of letters and such sealed 
 packages in the mail; and all regulations 
 adopted as to mail matter of this kind must be 
 in subordination to the great principle em- 
 bodied in the fourth amendment of the Con- 
 stitution." (Ex parte Jackson, 96 U. S., 727.) 
 
 "Prison authorities have no right to open and 
 inspect letters to or sent by prisoners without 
 the consent of such prisoners. They may, how- 
 ever, retain unopened letters until the prisoner 
 is released or the letters otherwise lawfully dis- 
 posed of." (Art. 68, Manual for Government of 
 United States Naval Prisons. "l 
 
 The fourth and fifth amendments "throw 
 great light on each other. For the 'unreason- 
 able searches and seizures' condemned in the 
 fourth amendment are almost always made for 
 the purpose of compelling a man to give evi- 
 dence against himself, which in criminal cases 
 is condemned in the fifth amendment; and 
 compelling a man 'in a criminal case to be a 
 witness against himself,' which is condemned 
 in the fifth amendment, throws light on the 
 
 question as to what is an ' imreasonable search 
 and seizure' within the meaning of the fourth 
 amendment. And we have been unable to 
 perceive that the seizure of a man's private 
 books and papers to be used in evidence against 
 him is substantially different from compelling 
 him to be a witness against himself." (Boyd v. 
 U. S., 116 U.S., 633.) 
 
 "The security intended to be guaranteed by 
 the fourth amendment against wrongful search 
 and seizures is designed to prevent violations 
 of private security in person and property and 
 unlawful invasion of the sanctity of the home 
 of the citizen by officers of the law, acting 
 under legislative or judicial sanction, and to 
 give remedy against such usurpations when 
 attempted. But the English and nearly all of 
 the American cases have declined to extend 
 this doctrine to the extent of excluding testi- 
 mony which has been obtained by such means, 
 if it is otherwise competent." (Adams v. New 
 York, 192 U. S., 597.) But one whose property 
 has been illegally seized and is being held by 
 officers of the law for the purpose of using same 
 as evidence in a criminal prosecution, may 
 recover the possession thereof by legal pro- 
 ceedings and thus prevent its being used 
 against him. (Weeks v. U. S., 232 U. S., 383. 
 See further, note to Amendments, Art. V, 
 ' ' Self-Crimination . " ) 
 
 Arrest of military offenders. — "A de- 
 serter may be arrested by a military officer, or 
 private duly authorized to make the arrest." 
 (In re Fair, 100 Fed. Rep., 149, 152.) 
 
 An officer of the Army may lawfully arrest a 
 deserter and hold him for trial by court-martial 
 
 117 
 
Fifth Amendment. 
 
 Ft. 1. THE CONSTITUTION. 
 
 Indictment, 
 
 (IIut('hin<irs v. 
 cited in is.iirtz 
 
 Van r.ok- 
 V. Mollitt, 
 
 without a warrant, 
 kelk'n, \\\ Me., 120; 
 115 U. S., 504.) 
 
 "Of course the right of military otlicers, 
 whether of the Army or Navy, to apprehend 
 and return deserters is interwoven in the very 
 fabric of the organization and administration 
 both of the Army and the Navy." (File 
 5021-1, Nov. 17, 1906, Attorney General to 
 Secretary of the Navy.) 
 
 In the absence of legislation, "a police officer 
 of a State, or a private citizen, has no authority 
 as such, without any warrant or military order, 
 to arrest and detain a deserter from the Army 
 of the United States." (Kurtz v. Molfitt, 115 
 U. S., 487; compare file 5621, letters from 
 Attorney General to Secretary of the Navy, 
 Sept. 18 and Nov. 17, 1906.) 
 
 It has been provided by statute "that it shall 
 be lawful for any civil ollicer having authority 
 under the laws of the United States or of any 
 State, Territory, or District to arrest offenders, 
 to summarily arrest a deserter from the Navy 
 or Marine Corps of the United States and de- 
 liver him into the custody of the naval author- 
 ities." (Act Feb. 16, 1909, sec. 15, 35 Stat., 622; 
 see also act June 18, 1898, 30 Stat., 484, with 
 reference to the Army.) 
 
 "Deserters may legally be arrested (1) by 
 any officer or duly authorized enlisted man in 
 the naval service; (2) by any civil officer hav- 
 ing general or special authority to arrest offend- 
 ers within any given jurisdiction; (3) by private 
 
 detectives who are authorized to make arrests; 
 and (4) by any person who is e.xpressly author- 
 ized by the naval authorities to arrest deser- 
 ters." (File 26516-92:1, Sept. 27, 1912; see also 
 26516-218.) 
 
 "WTien a deserter is delivered to the Navy, 
 the fact that the person who arrested liim was 
 not authorized to make such an arrest is not 
 legal ground for his discharge from naval cus- 
 tody * * *. This is a matter in which the 
 Government has no concern, persons who as- 
 sume to arrest deserters without legal authority 
 therefor doing so at their peril." (File 26516- 
 92:1, Sept. 27, 1912.) 
 
 "A reward for the arrest of a deserter or strag- 
 gler with authorized expenses incurred in his 
 return to the service may be paid to a private 
 detective agency notwithstanding the prohibi- 
 tion in the act of March 3, 1893 (27 Stat., 591), 
 against the employment in any Government 
 service of an 'employee of the Finkerton De- 
 tective Agency, or similar agency.' " (File 
 26516-38, Dec. 3, 1910; file 26516-92:1, Sept. 
 27, 1912.) 
 
 The Navy Department "desires that detec- 
 tive work in connection with the apprehension 
 and delivery of deserters from the Navy in the 
 United States shall be confined to recognized 
 police officers. It is considered undignified 
 and undesirable to encourage or employ the 
 services of private detectives or agents for such 
 purposes, and the practice will be discon- 
 tinued." (File 24918, July 17, 1907.) 
 
 [ARTICLE v.] 
 
 [Indictment required ; provision against double jeopardy and compulsory self- 
 incrimination ; protection of life, liberty, and property.] No person shall be held 
 to answer for a capital, or otherwise infamous crime, unless on a presentment or 
 indictment of a Grand Jury, except in cases arising in the land or naval forces, 
 or in the Militia, when in actual service in time of War or public danger; nor 
 shall any person be subject for the same offence to be twice put in jeopardy of 
 life or limb ; nor shall be compelled in any criminal case to be a witness against 
 himself, nor be deprived of life, liberty, or property, without clue process of 
 law; nor shall private property be taken for public use, without just compen- 
 sation. 
 
 Indictment by Grand Jury. 
 Protection Against Double Jeopardy. 
 Compelling Person to be Witness 
 
 Against Himself. 
 Protection op Life, Liberty, and 
 Property. 
 V. Presence of Accused at Trial. 
 VI. Remedy when Due Process Denied. 
 
 I. 
 
 II. 
 
 III. 
 
 IV. 
 
 I. Indictment by Grand Jury. 
 
 Infamous crime. — A crime is "infamous" 
 where it is punishable by imprisonment in a 
 state prison or penitentiary, whether the ac- 
 cused is or is not sentenced or put, to hard labor. 
 "In determining whether the crime is infa- 
 mous, the question is, Whether it is one for 
 
 which the statute authorizes the court to award 
 an infamous punishment, and not whether the 
 punishment ultimately awarded is an infamous 
 one." (In re Claasen, 140 U. S., 200.) 
 
 "\Vhat punishments may be considered as in- 
 famous may be affected by the changes of public 
 opinion from one age to another. In former 
 times, being put in the stocks was not consid- 
 ered as necessarily infamous. And by the first 
 judiciary act of the United States whipping was 
 classed with moderate fines and short terms of 
 imprisonment in limiting the criminal jurisdic- 
 tion of the District coiurts to cases 'where no other 
 pimishment than whipping, not exceeding thirty 
 stripes, a fine not exceeding one hundred dollars, 
 or a term of imprisonment not exceeding six 
 months, is to be inflicted.' * * * But at the 
 present day either stocks or whipping might be 
 thought an infamous punishment. For more 
 than a century imprisonment at hard labor in the 
 
 118 
 
Double Jeopardy. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Fifth. Amendment. 
 
 State prison or penitentiary or other institution 
 has been considered an infamous punishment in 
 England and America." (^Ex parte Wilson, 
 114 U. S.,417.) 
 
 Grand jtiry. — The limitation, "When in 
 actual service in time of war or public danger," 
 in this article, refers only to the militia, and 
 does not apply to the regular land and naval 
 forces. In respect to these latter, the power of 
 Congress is in-espective of the actual condition 
 of the country, and the same in time of peace as 
 in time of war or public danger. (U. S. v. Mac- 
 kenzie, 30 Fed. Cas. Xo. 18313; Johnson v. Sayre, 
 158 U. S., 114; In re Bogart, 3 Fed. Cas. Xo. 1596; 
 see also Ex parte Mason, 105 U. S., 700.) 
 
 (As to trials by courts-martial, see note to 
 Art. I, sec. 8, clause 14.) 
 
 II. Protection Against Double Jeopardy. 
 
 Double jeopardy. — By the Articles of War 
 it is pro\'ided that "Xo person [in the Army] 
 shall be tried a second time for the same of- 
 fense.'; (Art. 102, sec. 1342, R. S.) There is 
 no similar statute with reference to the Xa\y. 
 As to whether this amendment of the Constitu- 
 tion applies to the Army and Xa\y, see note to 
 Article I, section 8, clause 14, "Whether Consti- 
 tutional limitations restrict Congress in legis- 
 lating fo"r Xa^'y." 
 
 By the Articles for the Government of the 
 Navy it is provided that ''it shall be his [con- 
 vening authority's] duty either to remit any 
 part or the whole of any sentence [of a summary 
 court-martial] the execution of which would, in 
 the opinion of the surgeon or senior medical of- 
 ficer on board, given in writing, produce serious 
 injury to the health of the person sentenced; or 
 to submit the case again, without delay, to the 
 same or to another summary court-martial, 
 which shall have the power, upon the testimony 
 aheady taken, to remit the former punishment 
 and to assign some other of the authorized pun- 
 ishments in the place thereof." (Art. 33, sec. 
 1624, R. S.) 
 
 "The jeopardy of the law means a real peril, 
 originally of life or Limb, and always of substan- 
 tial punishment or penalty. The pro^dsion of 
 the Constitution is (fifth amendment) : ' Xor shall 
 any person be subject for the same offence to be 
 twice put in jeopardy of Life or limb.' Another 
 fundamental idea is that there must be a trial 
 upon an indictment for an offense, or upon some 
 equiyalent charge and presentment, as by court- 
 martial, submittiag a definite issue and involv- 
 ing con\-iction or acquittal. The person must 
 be in danger of condemnation; a mere inquiry or 
 other informal proceeding (informal in a judi- 
 cial sense), ending in a reprimand, does not sat- 
 isfy either element of the principle of second 
 jeopardy. Of course, if there is a trial in some 
 form which might result in con\T.ction and pun- 
 ishment, the jeopardy is none the less complete 
 and valid as a bar to another trial because, in 
 fact, it issues in a simple rebuke; for absolute ac- 
 quittal, if the peril is real, is equally a bar. 
 These principles indicate the logic underlying 
 the old common-law pleas of autrefois con\ict 
 and autrefois acquit." (^25 Op. Atty.Gen.,623.) 
 
 An investigation by a board of inquest or by a 
 court of inquiry is not a " trial" in any sense of 
 an issue or of an accused person. (25 Op. Atty. 
 Gen., 623.) 
 
 The reprimand of an officer by the com- 
 mander in chief of a fleet, or by the Secretary of 
 the Xavy, does not bar subsequent trial by 
 court-martial of the same oflicer for the same 
 offense. (25 Op. Atty. Gen., 623; 28 Op. Atty. 
 Gen., 622.) 
 
 Suspension of an officer from duty by his com- 
 manding officer, although imposed as punish- 
 ment for an offense, does not bar subsequent 
 trial by general com't-martial for the same of- 
 fense. (C. M. O. Xo. 7, 1914; C. M. 0. No. 31, 
 1914.) 
 
 The commanding officer of a naval vessel in 
 imposing punishment is not a court; his inves- 
 tigation of a charge is not a trial; his finding is 
 not a conviction or acquittal; and the punish- 
 ment which he decides to impose is not a sen- 
 tence. (File 26251-6297:9, Dec. 28, 1914; 
 C. M. O. 7, 1914; C. M. O. 31, 1914.) 
 
 A plea before a court-martial of a former arrest 
 and discharge is bad; a former trial only is a 
 defense under the Articles of War. Also, under 
 this amendment, "a mere arrest, even incases 
 punishable in life or limb, is not considered as 
 constituting this jeopardy. The principle is 
 derived to us immediately from the common 
 law. It is a maxim of this law, 'that a man 
 shall not be brought into danger of his life more 
 than once for the same offense;' but, to give 
 the benefit of this maxim, it is necessary that he 
 should have been actually acquitted or convicted 
 on a former trial, and the record of this fact must 
 be produced." (1 Op. Atty. Gen., 294.) 
 
 While not a Legal bar to trial, it is "not free 
 from legal censure" to bring an officer of the 
 Army to trial for a charge which has once been 
 "knowingly passed over." In such case the 
 charge "' ought not, either in candor or in justice, 
 to be in futui'e brought into question." (1 Op. 
 Atty. Gen., 294.) 
 
 "The weight of authority, as well as deci- 
 sions of this court, have sanctioned the rule that 
 a person has been in jeopardy when he is regu- 
 larly charged with a crime before a tribunal 
 properly organized and competent to try him; 
 certainly so after acquittal . " ( Kepner t) . U . S . , 
 195 U. S., 100, citing Coleman v. Tennessee, 97 
 U. S., 509; see also Ex parte Glenn, 111 Fed. 
 Rep., 261.) 
 
 "Undoubtedly in those jurisdictions where a 
 trial of one accused of crime can only be by a 
 jury and a verdict of acquittal or conviction 
 must be by a juiy, no legal jeopardy can attach 
 until a jury has been called and charged with 
 the deliverance of the accused. But protection 
 being against a second trial for the same offense, 
 it is obvious that where one has been tried be- 
 fore a competent tribunai having jurisdiction 
 he has been put in jeopardy as much as he 
 could have been in those tribunals where a jury 
 is alone competent to convict or acquit." 
 (Kepner v. U. S., 195 U. S., 100.) 
 
 " This principle is derived to us immediately 
 from the common law. ' ' ( 1 Op. Atty. Gen., 294 ; 
 6 Op. Atty. Gen., 204.) It embodies the com- 
 mon-law rule in criminal trials, as expressed in 
 the pleas of "autres foits acquit," or a former 
 acquittal, and " autres foits convict" or a former 
 conviction. (1 Op. Atty. Gen., 240.) 
 
 Court must have jurisdiction. — "We as- 
 sume as indisputable, on principle and au- 
 thority, that before a person can be said to have 
 
 119 
 
Fifth Amendment. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Double Jeopaxdy. 
 
 been put in jeopardy of life or linil) \hv court in 
 which he wsis acquitted or convicted must have 
 had jurisdiction to try him for the offense 
 charged." (Cirafton v'. U.' S.. 206 U. S., 345.) 
 
 Acquittal on defective indictment is bar 
 to second trial. — "It is, then, the settled law 
 of this court that former jeopardy includes one 
 who has been acquitted l)y a verdict duly ren- 
 dered, although no judgme' t be entered on the 
 verdict, and it was found upon a defective 
 indictment. The protection is not * * * 
 against the peril of second punishment, but 
 agixinst being tried for the same offense." 
 (Kepner v. U. S., 195 U. S., 100.) 
 
 "A general verdict of acqiuttal upon the 
 issue of not guilty to an indictment undertak- 
 ing to charge murder, and not objected to before 
 the verdict as insufficient in that respect, is a 
 bar to a second indictment for the same kill- 
 ing." (U. S. V. Ball, 163 U. S., 662.) 
 
 "As to the defendant who had been acquitted 
 by the verdict duly rendered and received, 
 the court could take no other action than to 
 order his discharge. The verdict of acquittal 
 waa final and could not be re\dewed on error 
 or othermse Without putting him twice in 
 jeopardy and thereby violating the Constitu- 
 tion, ilowever it may be in England, in this 
 countrA' a verdict of acquittal, although not 
 followed by any judgment, is a bar to a subse- 
 quent prosecution for the same offense." (U.S. 
 V. Ball, 163 U. S., 662.) 
 
 "As the judgment [against an accused] stands 
 before he appeals, it is a complete bar to any 
 further prosecution for the offense set forth in 
 the indictment or of any lesser degree thereof. 
 No power can wrest from him the right to so 
 use that judgment." (TronoiJ.U. S., 199U. S., 
 521.) 
 
 Returning record of court-martial for 
 revision of its findings or sentence does not con- 
 stitute trying the accused a second time for the 
 same offense, in violation of this aiticle. (Ex 
 parte Reed, 100 U. S., 13; Swaim v. U. S., 165 
 U. S., 553; Carter v. McClaughry, 183 U. S., 365; 
 6 Op. Atty. Gen., 204, 205.) 
 
 "Undoubtedly, errors are committed by 
 courts-martial which a civil tribimal would 
 regard as sufficient ground for a reversal for 
 their judgments if it were sitting as an appel- 
 late court. But there is always this radical 
 difference between an appellate court sitting 
 for the correction of errors and a cIa^I court into 
 which the record of a court-martial is collateral; 
 in the former there is not a failure of justice: 
 the appellate court may reverse a judgment or 
 
 {)rescribe another or award a new trial; in the 
 atter the court must either give full effect to 
 the sentence or pronounce it wholly void." 
 (Swaim v. U. S., 28 Ct. Cls., 217.) 
 
 When a naval court-martial is ordered by the 
 convening authority to revise its proceedings, 
 new evidence shall not be admissible. (Naval 
 Courts and Boards, 1917, sec. 375.) 
 
 "A court-martial on revisal does not rehear 
 the case; it only reconsiders the record for the 
 purpose of correcting or modifying any conclu- 
 sions thereon. The true analogy of such a re- 
 visal, to take an example from the practice of 
 civil courts, is the case of a jur)- sent out by the 
 court to reconsider the verdict. Such is the 
 
 whole current of authorities, as well in the 
 United States as in Great Britain." (6 Op. 
 Atty. Gen., 205.) 
 
 Offenses different in degree only. — An 
 acciuiltal of murder may be pleaded in bar of 
 an indictment lor manslaughter based upon the 
 same kilUng; "because the latter charge was 
 included in the former, and if it had so appeared 
 on the triyl the defendajit might have been con- 
 victed of the inferior offense; " and an accjuittal 
 of manslaughter will preclude a future prosecu- 
 tion for murder, "for if he were innocent of the 
 modified crime he could not be guilty of the 
 same fact, with the addition of malice and de- 
 sign." (Grafton v. U. S., 206 U. S., 333, 350, 
 quoting Chitty Cr. L.) 
 
 Offenses violating both, mihtary and 
 civil law. — "The subject of the civil respon- 
 sibility of the Army was very carefully con- 
 sidered by Attorney General Gushing in Stein- 
 er's case (6 Op. Atty. Gen., 413) and the con- 
 clusion reached that an act criminal both by 
 military and general law is subject to be tried 
 either by a military or civil court, and that a 
 conviction or acquittal by the civil authorities 
 of the offense against the general law does not 
 discharge from responsibility for the military 
 offense involved in the same facts. The con- 
 verse of this proposition is equally true." (U. 
 S. V. Clark, 31 Fed. Rep., 710, 712.) [Note: 
 In the Steiner case the Attorney General's opin- 
 ion related to the jurisdiction of military and 
 State courts, in a case where the offense was 
 cognizable by both.] 
 
 But where both courts derive their jurisdic- 
 tion from the United States, an acquittal by one 
 may be pleaded in bar of trial by the other for 
 an offense substantially identical, although 
 called by a different name. Thus tlie acquittal 
 by court-martial of a person belonging to the 
 Army upon a charge of liomicide was a A'alid 
 bar to a trial of the same person for the same 
 homicide by the courts of the Philippine Is- 
 lands. (Grafton v. U. S., 206 U. S., 333.) 
 
 "It may be difficult at times to determine 
 whether the offense for which an officer or 
 soldier is being tried is in every substantial re- 
 spect the same offense for wlxich he had been 
 previously tried. We will not therefore at- 
 tempt to formulate any rule by wlxich every 
 conceivable case must be solved." (Grafton 
 V. U. S., 206 U. S., 355.) 
 
 "Undoubtedly the general rule is that the ju- 
 risdiction of civil courts is concurrent as to 
 offenses triable before courts-martial. ' ' (Frank- 
 lin t;. U. S., 216 U. S., 559, 568, citing 6 Op. 
 Atty. Gen., 413, 419, U. S. v. Clark, 31 Fed. 
 Rep., 710.) 
 
 Offenses violating the laws of two gov- 
 ernments. — "Every citizen of the United 
 States is also a citizen of a State or Territory. 
 He may be said to owe allegiance to two sov- 
 ereigns, and may be liable to punishment for 
 an infraction of the laws of either. The same 
 act may be an offense or transgression of the 
 laws of both. Thus, an assault upon the mar- 
 shal of the United States, and hindering him 
 in the execution of legal process, is a high of- 
 fense against the United States, for wliich the 
 perpetrator is liable to punishment; and tlie 
 same act may be also a gross breach of the peace 
 
 120 
 
S eK-crimination . 
 
 Pt. 1. THE CONSTITUTION 
 
 Fifth Amendment. 
 
 of tlie State, a riot, an assault, or a murder, and 
 subject the same person to a punishment, under 
 the State laws, for a misdemeanor or felony. 
 That either or both may (if they see fit) punish 
 such an offender can not be doubted. Yet it 
 can not be truly aA'erred that the offender has 
 been twice punished for the same offense; but 
 only that by one act he has committed two of- 
 fenses, for each of wliich he is justly punish- 
 able." (Moore v. Illinois, 14 Kow., 20.) 
 
 "We do not call in question the correctness 
 of the general doctrine * * * that the 
 same act may in some instances be an offense 
 against two goA'ernments, and that the trans- 
 gressor may be held liable to punishment by 
 both when the punishment is of such a char- 
 acter that it can be twice inflicted, or by either 
 of the two governments if the punishment from 
 its nature can be only once suffered. It may 
 well be that the satisfaction wliich the trans- 
 gressor makes for the violated law of the United 
 States is no atonement for the ^dolated law of 
 Tennessee." (Coleman v. Tennessee, 97 U. S., 
 509.) 
 
 The trial and punishment of a naval officer 
 by the court of a foreign country for violating 
 the laws of that country is not a bar to his trial 
 by naval court-martial for \'iolating the Arti- 
 cles for the Government of the Na\^ (sec. 1624, 
 R. S.) by the same acts. (File 26251-8144, 
 Nov. 22, 1913.) 
 
 New trial upon motion of accused. — If the 
 accused seeks a new trial, or appeals from the 
 judgment against him and asks for its reversal, 
 he can not thereafter plead former jeopardy if 
 he is successful in obtaining a reversal of the 
 judgment. And if the judgment convicted him 
 of a lesser offense than that charged and thereby 
 acquitted him of the greater offense, he can not 
 avail himself even of that part of the judgment 
 which contained an acquittal, but upon his new 
 trial may be con\'icted of the greater offense. 
 By seeking a new trial the accused waives his 
 right to the plea of former jeopard v. (Trono v. 
 U. S., 199 U. S., 521; U. S. v. Ball, 163 U. S., 
 662.) 
 
 Where an error has been committed in a trial 
 by court-martial wliich is prejudicial to the 
 accused, and the accused himself seeks to have 
 the conviction disapproved and a new trial 
 granted, he thereby waives his right to plead 
 former jeopardy when brought to trial a second 
 time for the same offense, and the court-martial 
 is compelled to proceed with the trial. It was 
 not the intention of the law to deny the ac- 
 cused the right to a new trial where prejudicial 
 error has been committed and he liimself seeks 
 it. "Is there any mode by which liis honor 
 can be rescued from the imputation thrown 
 upon it by an improper sentence of a first court, 
 except that of ordering a second?" (1 Op. 
 Atty. Gen., 233; see also 27 Op. Atty. Gen., 200.) 
 
 This principle is designed for the benefit of 
 the accused, not for his prejudice; and "there 
 is no principle in law better settled than that 
 a party has the right to waive a rule designed 
 merely for his own benefit." (1 Op. Atty. 
 Gen. ,'233.) 
 
 "This provision is in accordance with a well- 
 known doctrine of the law of England to the 
 same effect. That is to say, by the common 
 
 law, as understood and administered both in 
 England and the United States, there can not 
 be a new trial at the instance of the Government, 
 in a case of treason or felony, though there may 
 be in a case of misdemeanor where a party la 
 alleged to be improperly convicted, but not 
 where he has been acquitted." (6 Op. Atty. 
 Gen., 204, 205.) 
 
 "The granting of new trials after conviction 
 and approval of sentence is not in accordance 
 with the practice of military and naval courts. 
 * * ■* ' It is to be noted that it is only upon 
 and as an incident to a disapproval of a sentence 
 that a new trial can be allowed; after approval 
 there can legally be no such proceeding.' Any 
 newly discovered matter of defense deemed to 
 be of such importance as in a proceeding before 
 a civil court to be made the basis of an applica- 
 tion for a new trial may, in a naval case, be 
 presented for consideration in connection with 
 an application for Executive clemency. " 
 (File 6674-38, Apr. 30, 1907; C. M. O. 92-1918, 
 p. 16.) 
 
 ["The Secretary of the Navy may set aside 
 the proceedings, or remit or mitigate, in whole 
 or in part, the sentence imposed by any naval 
 court-martial convened by his order or by that 
 of any officer of the Navv or Marine Corps. " 
 (Act Feb. 16, 1909, sec. 9", 35 Stat., 621.)] 
 
 Trial interrupted before completion. — 
 "The law has invested courts of justice with the 
 authority to discharge a jury from giving any 
 verdict whenever in their opinion, taking all 
 the circumstances into consideration, there is 
 a manifest necessity for the act, or the ends of 
 public justice would otherwise be defeated. 
 They are to exercise a sound discretion on the 
 subject; and it is impossible to define all the 
 circumstances which would render it proper to 
 interfere. * * * Such a discharge consti- 
 tutes no bar to further proceedings, and gives 
 no right of exemption to the prisoner from being 
 again put upon trial." (U. S. v. Perez, 9 
 Wheat., 579.) 
 
 "This is the settled law of the Federal courts. " 
 (Keerl v. Montana. 213 U. S., 135.) 
 
 III. Compelling Peeson to be Witness 
 Against Himself. 
 
 Self-crimination. — The pri\'ilege granted 
 by this article is not limited to the defendant on 
 trial for crime, but includes all witnesses in 
 criminal proceedings. (Counselman v. Hitch- 
 cock, 142 U. S., 562; U. S. v. Kimball. 117 Fed. 
 Rep., 160.) 
 
 It is provided by statute with reference to 
 naval general courts-martial and courts of in- 
 quiry "that no witness shall be compelled to 
 incriminate himself or to answer any question 
 which may tend to incriminate or degrade 
 him." (Act Feb. 16, 1909, sec. 12, 35 Stat., 
 622.) 
 
 In trials by court-martial and proceedings 
 before courts of inquiry the accused or person 
 charged "shall, at his own request but not 
 otherwise, be a competent witness." (Act 
 Mar. 16, 1878, 20 Stat., 30; Naval Courts and 
 Boards, 1917, sees. 138, 512.) 
 
 Waiver of privilege. — Wlien an accused per- 
 son voluntarily testifies in his own behalf, he 
 
 121 
 
Rfth Amendment. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Self-crimination. 
 
 thereby waives his constitutional privilege as 
 to the subject-matter of such testimony, and 
 may be cross-examined thereon with the same 
 latitude which ia allowed in the cross-examina- 
 tion of ordinary witnesses. (Fitzpatrick v. 
 U. S., 178U. S.,304.) 
 
 It a witness waives his privilege l)y answering 
 questions of a criminating character, it is then 
 too late for him to stop and he may be required 
 to make a full disclosure of the facts relating 
 thereto regarding which he is interrogated. 
 (Brown v. Walker, 1(51 U. S., 591.) 
 
 It is decided by an abundance of authority 
 that the privilege of refusing to testify is a 
 purely personal one; that the -wdtness may 
 waive it; that no objection from the parties, on 
 the score of crimination of the witness, can be 
 entertained; and that tlie counsel for the wit- 
 ness can only be heard in defense of his right. 
 It would seem to follow that where this right has 
 been \'iolated, it is for the witness to complain, 
 and not the defendant. If ordered to testify in 
 a case where he is privileged, it is a matter ex- 
 clusively between the court and the mtness. 
 The latter may stand out and be committed for 
 contempt, or he may submit; but the party has 
 no right to interfere or complain of the error. 
 Accordingly, if a court-martial committed an 
 error in requiring a witness to answer, the error 
 is not such as to require a disapproval of the 
 proceedings. (17 Op. Atty. Gen., 616.) 
 
 Duty of court. — A witness can not avoid 
 answering any question by the mere statement 
 that the answer would tend to incriminate him, 
 without regard to whether the statement is 
 reasonable or not. It is for the judge before 
 whom the question arises to decide whether an 
 answer to the question may reasonably have a 
 tendency to criminate the witness, or to furnish 
 proof of an element or link in the chain of evi- 
 dence necessary to convict him of a crime. 
 (Ex parte Irvine, 74 Fed. Kep., 954.) 
 
 It is not sufficient to excuse the witness from 
 testifying that he may, in his own mind, think 
 his answer to the question might, by possibility, 
 lead to a criminal charge against him, or tend to 
 convict him of it if made. The court must be 
 able to perceive that there is reasonable ground 
 to apprehend danger to the witness from his 
 being compelled to answer. (U. S. v. McCarthy, 
 18 Fed. Rep., 87.) 
 
 However, "if the question be of such a de- 
 scription that an answer to it may or may not 
 criminate the witness, according to the purport 
 of that answer, it must rest with himself, who 
 alone can tell what it would be, to answer the 
 question or not. If in such a case, he say upon 
 his oath that his answer would criminate him- 
 self, the court can demand no other testimony 
 of the fact." (U. S. v. Burr, 25 Fed. Cas. No. 
 14692e, per Chief Justice Marshall; see also 
 Counselman v. Hitchcock, 142 U. S., 547; In re 
 Shera, 114 Fed. Rep., 207; In re Kanter, 117 
 Fed. Rep., 356.) But the court may compel an 
 answer, if of opinion that no direct answer to 
 the question could furnish evidence against the 
 witness. (U. S. v. :Miller, 26 Fed. Cas. No. 
 15772; see also, In re Levin, 1.31 Fed. Rep., 388.) 
 
 When required, to answer. — Where it 
 clearly appears to the court that a witness con- 
 tumaciously or mistakenly refuses to furnish 
 evidence which can not possibly injure him, he 
 
 will not be permitted to shield himself behind 
 the privilege (In re Kanter, 117 Fed. Rep., 356); 
 but the motive of the witness in pleading the 
 privilege will not be inquired into "where, 
 from the evidence and the nature of the question 
 the court can definitely determine tliat the 
 question, if answered in a particular way, will 
 form a link in the chain of evidence to establish 
 the commission of a crime by the witness. 
 * * * It is only where the criminating 
 effect of the question is doubtful that the 
 motive of the witness may be (considered, for 
 in such a case his bad faith would have a tend- 
 ency to show that his answer would not sub- 
 ject him to the danger of a criminal prosecution 
 or help to prove him guilty of crime." (Ex 
 parte Irvine, 74 Fed. Rep., 964.) 
 
 "If the testimony relate to criminal acts long 
 since past, and against the prosecution of 
 which the statute of limitations has run, or for 
 which he has already received a pardon or is 
 guaranteed an immunity, the amendment does 
 not apply. * * * The criminality pro- 
 vided against is a present, not a past crimi- 
 nality, which lingers only as a memory and 
 involves no present danger of prosecution." 
 (Hale V. Henkel, 201 U. S., 43.) 
 
 Witness may be required to answer by a Fed- 
 eral court, if there is a Federal statute granting 
 him immunity, although his answers may ex- 
 pose him to prosecution in the State courts to 
 which the Federal statute has no appUcation. 
 (Brown i;. Walker, 161 U. S., 591.) 
 
 By section 860, Revised Statutes, a general 
 provision was enacted ^vith reference to wit- 
 nesses giving criminating testimony in judicial 
 proceedings, under which it was claimed that 
 witnesses might be compelled to answer crimi- 
 nating questions, as they were protected from 
 prosecution therefor by said section. However, 
 section 860 proved ineffective for this purpose, 
 as it was held by the courts not to be as broad aa 
 the priAdlege conferred by the Constitution. 
 (See Counselman v. Hitchcock, 142 U. S.,547.) 
 It was repealed by act of May 7, 1910, (36 Stat., 
 352). By act of February 11, 1893 (27 Stat., 443), 
 Congress passed an immunity statute applicable 
 to testimony given before the Interstate Com- 
 merce Commission, which was broader in its 
 terms than section 860, Revised Statutes, and 
 was upheld by the Supreme Court as requiring 
 witnesses to answer. (Brown v. Walker, 161 U. 
 S., 591; see also Hale v. Henkel, 201 U. S., 43, 
 upholding an immunity statute enacted Feb. 25, 
 1903, 32 Stat., 904, with reference to prosecutions 
 under the antitrust act.) 
 
 A pardon must be accepted before a wit- 
 ness may be required to answer questions con- 
 necting him with matters for which the pardon 
 grants him immunity. The witness has the 
 right, if he desires to do so, to refuse the pardon 
 and decline to testify. (Bur dick v.V. S.,236 
 U. S., 79.) [The President "can pardon or re- 
 prieve only when an offense against the law 
 has been established by proof or the admissions 
 of the party, and a penalty thereby incurred." 
 (2 Op. Atty. Gen., 485; see also Burdick v. U. S., 
 236 U. S., 79, in which this question was dis- 
 cussed but not decided.)] 
 
 "It is to be borne in mind that the power of 
 the President under the Constitution to grant 
 pardons and the right of a witness must be kept 
 
 122 
 
Due Process of Law. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Fifth. Amendment. 
 
 in accommodation. Both have sanction in the 
 Constitution, and it should therefore be the 
 anxiety of the law to preserve both — to leave to 
 each its proper place. In this, as in other con- 
 flicts between personal rights and the powers of 
 government, technical — even nice — distinc- 
 tions are proper to be regarded." (Burdick v. 
 U. S.,236 U. S., 79.) 
 
 "The seizure or compulsory production 
 of a man's private papers to be used in evi- 
 dence against him is equivalent to compelling 
 him to be a witness against himself, and, in a 
 prosecution for a crime, penalty, or forfeiture is 
 equally ^\•ithin the prohibition of the fifth 
 amendment." (Boyd v. U. S., 116 U. S., 616.) 
 
 "We have been unable to perceive that the 
 seizure of a man's private books and papers to 
 be used in e\'idence against him is substantially 
 different from compelling him to be a witness 
 against himself." (Boyd v. U. S., 116 U. S., 
 633; compare Adams v. New York, 192 U. S., 
 585.) 
 
 ' ' The fact that papers which are pertinent to 
 the issue may have been illegally taken from 
 the possession of the party against whom they 
 are offered is not a valid objection to their ad- 
 missibility. The court considers the compe- 
 tency of the evidence, and not the method by 
 which it was obtained * * * and by the 
 introduction of such evidence defendant is not 
 compelled to incriminate himself." (Adams v. 
 New York, 192 U. S., 585, distinguishing Boyd 
 V. U. S., on the ground that in that case it was 
 attempted to compel defendant to produce his 
 books and papers, on the pain of having state- 
 ments of Government's counsel as to the con- 
 tents thereof taken as true and used as testi- 
 mony for the Government, and that the law 
 there held to be unconstitutional "\irtually 
 compelled the defendant to furnish testimony 
 against himself.") 
 
 "While an incidental seizure of incriminating 
 papers, made in the execution of a legal war- 
 rant, and their use as evidence may be justified, 
 and a collateral issue will not be raised to ascer- 
 tain the source of competent evidence * * * 
 that rule does not justify the retention of letters 
 seized in violation of the protection given by 
 the fourth amendment where an application in 
 the cause for their return has been made by the 
 accused before trial." (Weeks v. U. S., 232 
 U. S., 383.) 
 
 "Where letters and papers of the accused 
 were taken from his premises by an official of 
 the United States, acting under color of office 
 but without any search warrant and in viola- 
 tion of the constitutional rights of accused un- 
 der the fourth amendment, and a seasonable 
 application for return of the letters and papers 
 has been refused and they are used in evidence 
 over his objection, prejudicial error is com- 
 mitted, and the judgment should be reversed." 
 (Weeks v. U. S., 232 U. S., 383.) 
 
 "The tendency of those executing Federal 
 criminal laws to obtain convictions by means of 
 unlawful seizures and enforced confessions in 
 violation of Federal rights is not to be sanc- 
 tioned by the courts which ar? charged with 
 the support of constitutional rights." (Weeks 
 I'. IT. S., 232 U. S.,_383.) 
 
 See note to section 1624, Revised Statutes, 
 article 42. 
 
 Compelling: witness to exhibit himself. — 
 
 "The prohibit icm of compelling a man in a 
 criminal court to be witness against himself is a 
 prohibition of the use of physical or moral com- 
 pulsion to extort communications from him, 
 not an exclusion of his body as evidence when 
 it may be material. The objection in principle 
 would forbid a jury to look at a prisoner and 
 compare his features with a photograph in 
 proof. Moreover, we need not consider how far 
 a comt would go in compelling a man to exhibit 
 himself. For when he is exhibited, whether 
 voluntarily or by order, and even if the order 
 goes too far, the evidence, if material, is compe- 
 tent." (Holt V. U. S., 218 U. S., 253, citing 
 Adams v. New York, 192 U. S., 585.) 
 
 "A question arose as to whether a blouse be- 
 longed to the prisoner. A witness testified that 
 the prisoner put it on and it fitted him. It is 
 objected that he did this under the same duress 
 that made his statements inadmissible, and that 
 it should be excluded for the same reasons." 
 Held, that this objection "is based upon an 
 extravagant extension of the fifth amendment," 
 and that the testimony is admissible. (Holt v. 
 U. S., 218 U. S.. 245.) 
 
 "A confession freely and voluntarily 
 made is evidence of the most satisfactory char- 
 acter. But the presumption upon which 
 weight is given to such evidence, namjly, that 
 an innocent man will not imperil his safety or 
 prejudice his interests by an untrue statement, 
 ceases when the confession appeal's to have been 
 made, either in consequence of inducements of 
 a temporal nature held out by one in authority 
 touching the charge preferred, or because of a 
 threat or promise made by or in presence of 
 such person in reference to such charge." 
 (Hopt V. Utah, 110 U. S., 574.) 
 
 If the testimony may tend merely to de- 
 grade and not to incriminate the witness, he 
 may be required to answer, unless the question 
 is one which is not material to the issue and is 
 intended to impair the credibility of the wit- 
 ness, in which case he may refuse to answer. 
 (Brown v. Walker, 161 U. S., 591, and cases 
 there cited; see also C. M. 0., No. 29, 1914.) 
 
 IV. Protection op Life, Liberty, and 
 Property. 
 
 Due process of law. — The proposition has 
 been uniformly accepted by American courts 
 that the words "due process of law" are equiv- 
 alent in meaning to the words "law of the 
 land" contained in Magna Charta. (Twining 
 V. New Jersey, 211 U. S., 78.) 
 
 "By the law of the land is most clearly in- 
 tended the general law which hears before it 
 condemns; which proceeds upon inquiry and 
 renders judgment only after trial. The mean- 
 ing is that every citizen shall hold his life, 
 liberty, and property, and immunities under 
 the protection of the general rules which govern 
 society. Everything which may pass under 
 the form of an enactment is not law of the 
 land." (Dartmouth College v. Woodward, 4 
 ^\lieat., 518, argument of Webster; quoted in 
 Hurtado v. California, 110 U. S., 516.) 
 
 The Supreme Coint has always declined to 
 give a comprehensive definition of this phrase, 
 "and has preferred that its full meaning should 
 be gradually ascertained by the process of in. 
 
 54641°— 22- 
 
 -9 
 
 123 
 
Fifth Amendment. 
 
 Ft. 1. THE CONSTITUTION. 
 
 Due Process of Law. 
 
 elusion and exilusion in the course of the de- 
 cisions of cases as thev arise." (Twining r. 
 New Jersey, 211 U. S., 78.) 
 
 "To those in the military or naval service of 
 the United States the military law is due 
 process. The decision, therefore, of a military 
 tribunal acting within the scope of its lawful 
 powers can not be reviewed or set aside by the 
 courts." (Reaves v. Ainsw^orth, 219 U. S., 
 296, 304.; 
 
 "It is sufficient to say that by due process of 
 law is meant one which, following the forms of 
 law, is appropriate to the case and just to the 
 parties to oe affected. It must be pursued in 
 tlie ordinary mode prescribed by law; it must 
 be adapted "to the end to be attained, and when- 
 ever it is necessary for the protection of the 
 Earties it must give them an opportunity to be 
 eard rosjjecting the justness of the judgment 
 sought. The clause, therefore, means that 
 there can be no proceeding against life, liberty, 
 or property which may result in deprivation of 
 either without the observance of those general 
 rules established in our system of jurisprudence 
 for the security of private rights." (Hagar v. 
 Reclamation District, 111 U. S., 701.) 
 
 "Any legal proceeding enforced by public 
 authority, whether sanctioned by age and cus- 
 tom or newly devised in the discretion of the 
 legislative power, in furtherance of the general 
 public good, which regards and preserves these 
 principles of liberty and justice, must be held 
 to be due process of law." (Hurtado v. Cali- 
 fornia, 110 U. S., 516.) And this expression is 
 not, therefore, necessarily limited to "settled 
 usages and modes of proceedings existing in the 
 common and statute law of England before the 
 emigration of our ancestors, and shown not to 
 have been unsuited to their civil and political 
 condition by having been acted on by them 
 after the settlement of this country." (Twin- 
 ing V. New Jersey, 211 U. S., 78. See also 
 Holden v. Hardy, 169 U. S., 366.) 
 
 "If the laws enacted by a State be within 
 the legitimate sphere of legislative power, and 
 their enforcement be attended with the observ- 
 ance of those general rules which our system of 
 jurisprudence prescribes for the security of 
 private rights, the harshness, injustice, and 
 oppressive character of such law^s will not in- 
 validate them as affecting life, liberty, or 
 property without due process of law." (Mis- 
 souri Pac. Ry. Co. v. Humes, 115 U. S., 512.) 
 
 "Due process of law * * * is secured if 
 the laws operate on all alike and do not subject 
 the individual to an arbitrary exercise of the 
 powers of the Government." (Giozza i^. Tier- 
 nan, HSU. S.,657.) 
 
 "Liberty" means "not only the right of 
 the citizen to be free from the mere physical 
 restraint of his person, as by incarceration, but 
 the term is deemed to embrace the right of the 
 citizen to be free in the engagement of all his 
 faculties; to be free to use them in all lawful 
 ways; to live and work where he will; to earn 
 his livelihood by any lawful calling; to pursue 
 any livelihood or avocation; and for that pur- 
 pose to enter into all contracts which may be 
 proper, necessary, and essential to his carrying 
 out to a successful conclusion the purposes 
 above mentioned." (Allgeyer v. Louisiana, 
 165 U. S., 578.) 
 
 An officer of the Navy placed under arrest 
 for trial by court-martial and ordered to con- 
 fine himself to the Uniils of the city of Wash- 
 ington, is not deprived of his liberty so as to 
 entitle him to a writ of habeas corpus on the 
 allegation that he was unlawfully restrained by 
 the Secretary of the Navy. "In the case of a 
 man in the military or naval service, where he 
 is, whether as an ofiicer or a private, always 
 more or less su})ject in his mo^'ements, l)y the 
 very necessity of military' rule and subordina- 
 tion, to the orders of his superior officer, it 
 should be made clear that some unusual re- 
 straint upon his lil)erty of personal movement 
 exists to justify the issue of the writ; otherwise, 
 eveiy order of the superior officer directing the 
 movements of his subordinate, which neces- 
 sarily to some extent curtails his freedom of 
 will, may be held to be a restraint of his liberty, 
 and the party so ordered may seek relief from 
 obedience by means of a writ of habeas corpus." 
 (Wales V. Whitney, 114 U. S., 564.) 
 
 Office is not "property." — "An ofiicer in 
 the Army or Navy of t he United States does not 
 hold his office by contract, but at the will of the 
 sovereign power." (Crenshaw v. U. S., 134 
 U. S., 99.) "Whatever the form of the statute, 
 the officer under it does not hold by contract. 
 He enjoys a privilege revocable by the sover- 
 eignty at will; and one legislature can not 
 deprive its successor of the power of revoca- 
 tion." (Same case.) 
 
 "An office created by statute is not the 
 property of the incumbent. Being given by 
 statute it can be taken away by statute, and 
 therefore the rules of law applicable to pro- 
 ceedings to deprive a person of property law- 
 fully acquired are not, in general, applicable 
 to proceedings of examining boards in cases of 
 promotion. The rules of procedure, even in 
 ci\il cases, where rights of property are in- 
 volved, are not applicable here except in so 
 far as they are made so by statute and regula- 
 tions adopted by the Navy Department in ac- 
 cordance with statute laws. * * * Neither 
 can such examinations be assimilated in any 
 manner to criminal proceedings, which they 
 in no sense resemble. * * * The offices 
 held by naval officers Congress creates, abol- 
 ishes, and limits at will. Congress has com- 
 plete power, if it wishes, not only to stop pro- 
 motions but to abolish these offices. It might 
 declare that no one should hereafter be pro- 
 moted who was not over 6 feet high; or it 
 might direct that all officers not of the required 
 height should be discharged; and it can cer- 
 tainly pass an act like that of ] 882 directing the 
 discharge of officers whose unfitness arises fiom 
 their own misconduct." (File 26260-1392, 
 June 29, ]91], quoting Secretary of Navy's 
 "General Instructions" of Dec. 14, 1894, in 
 case of Frederick W. Crocker.) 
 
 However, "if the constitutional provision 
 relating to due process of law applied " to the 
 case of an ofiicer discharged from the Na^y for 
 failing morally to qualify for promotion, "it 
 would be more than satisfied by the procedure 
 established;" under which "his case is heard 
 by a board constituted in accordance with ex- 
 press provisions of law and sworn to 'honestly 
 and impartially examine and report upon the 
 case of , now before the 
 
 124: 
 
Due Process of Law. 
 
 Pt. 1. TEE CONSTITUTION. 
 
 Fifth Amendment. 
 
 board and about to be examined;' all matters 
 considered by the board, -nhether affecting the 
 officer's physical, mental, moral, or professional 
 qualifications for promotion, ai^e entered of 
 record : the candidate, if his record shows him 
 prima facie unfit for promotion, is so informed 
 by the lioard and given an opportunity to be 
 heard; the finding and recommendation of the 
 board are expressly stated in all cases to be 
 based upon matters recorded, and are so re- 
 ferred to the department and the President for 
 re\dew.'' (File 26260-1392, June 29, 1911, p. 
 31, citing In re Sing Lee, 54 Fed. Rep., 336; 
 Turner rT Williams, 194 U. S., 289, 290; :Murray 
 V. Hoboken Land Company, 18 How., 274.) 
 
 Private property taken for public use. — 
 See note to Article I, section 8, clause 11, '"Au- 
 thority of military commander to seize private 
 property"; see also note to Article I, sections, 
 clause 8, "Right of Government to use a pat- 
 ent"; and see act of August 1, 1888 (25_Stat., 
 357), as to acquisition of lands for public uses 
 by condemnation. 
 
 "Aside from constitutional provisions, 
 it is a plain dictate of common justice that no 
 person shall be deprived of Life, liberty, or i^rop- 
 erty -without due process of law." (22 Op. 
 Atty. Gen., 137. See note to Art. I, sec. 8, 
 clause 14, ""\Miether constitutional limitations 
 restrict Congress in legislating for Ka\"5^") 
 
 Court illegally constituted. — "Trial by a 
 court [martial J not regularly constituted is not 
 a trial which can be said to be 'due process 
 of law.' I am of opinion, therefore, that the 
 so-called court-martial, so far as the trial of 
 Brown is concerned, must remain illegal, and 
 its judgment ought not to be enforced." (22 
 Op. Atty. Gen., 137. In this case, one member 
 of a naval court-martial was detached and 
 another substituted bj' the Chief of the Bureau 
 of Navigation without authority from the Sec- 
 retary of the Xaw, who convened the court.) 
 
 Court must have jurisdiction.— To con- 
 stitute due process of law, the court which 
 renders judgment in a case must have juris- 
 diction, both of the parties and of the subject- 
 matter of the proceedings. (Pennoyer v. Neff, 
 95 LT. S., 714.) Consent of the accused can not 
 confer jurisdiction upon a court not possessing 
 it by \irtue of statutory authority. (22 Op. 
 Atty. Gen., 137.) 
 
 Review not required. — "A review by an 
 appellate court of the final judgment in a 
 criminal case, however grave the offense of 
 which the accused is convicted, was not at 
 common law and is not now a necessarj^ element 
 of due process of law." (McKane r. Durston, 
 153 U. S., 684; see also Reetz v. Michigan, 188 
 U. S., 505; Andrews v. Swartz, 156 U. S., 272; 
 Fallbrook v. Bradley, 164 U. S., 112; Rogers v. 
 Peck, 199 U. S., 425; Frank v. Mangum, 237 
 U. S., 309.) 
 
 Use of depositions. — Due process of law 
 does not require that the accused in a criminal 
 case be confronted with the witnesses against 
 him. The provision of the sixth amendment 
 on this subject does not apply to State coiirts, 
 and is not extended to them by the due process 
 provision of the fourteenth amendment. Ac- 
 cordingly, held that the deposition of a witness 
 may be admitted against an accused in a State 
 
 court without violating the Federal Constitu- 
 tion: "We are of opinion that no Federal right 
 of the plaintifls in error was violated by admit- 
 ting this deposition in evidence. Its admission 
 was but a sHght extension of the rule of the com- 
 mon law, even as contended for by counsel. 
 The extension is not of such a fundamental 
 character as to deprive the accused of due 
 process of law * * *. The accused has, as 
 held by the State court in such case, been once 
 confronted with the witness, and has had oppor- 
 timity to cross-examine him, and it seems rea- 
 sonable that when the State can not proctire the 
 attendance of the witness at the trial, and he is 
 a nonresident and is permanently beyond the 
 jurisdiction of the State, that his deposition 
 might be read equally as well as when his at- 
 tendance could not be enforced because of 
 death or of illness, or his evidence given by 
 reason of insanity." (West v. Louisiana, 194 
 U. S.,258.'^ 
 
 Self-incrimination. — Due process of law 
 does not include exemption_ by witnesses from 
 compulsory self-incrimination. (Twining r. 
 New Jersey, 211 U. S. , 78. That right is guaran- 
 teed witnesses in the Federal comis by another 
 clause of this amendment. See above, "Self- 
 crimination.") 
 
 Excessive bail, excessive fines, and cruel 
 and unusual punishments are prohibited by 
 the eighth amendment, and are not included in 
 the due-process clause. (In re Kemmler, 136 
 U. S.,436.) 
 
 Errors of procedure. — "The due process of 
 law guaranteed by the fourteenth amendment 
 has regard to substance of right, and not to 
 matters of form or procedure. * * * This 
 familiar phrase does not mean that the opera- 
 tions of the State government shall be con- 
 ducted without error or fault in any particular 
 case, nor that the Federal courts may substitute 
 their jtidgment for that of the State courts, or 
 exercise any general review over their pro- 
 ceedings, but only that the fundamental 
 rights of the prisoner shall not be taken from 
 birn arbitrarily or v\ithout the right to be heard 
 according to the usual course of law in such 
 cases." (Frank r. Mangum, 237 U. S., 309.) 
 
 "If a trial is in fact dominated by a mob, 
 so that the jury is intimidated and the trial 
 judge yields, and so that there is an actual 
 interference with the course of justice, there is, 
 in that court, a departure from due process 
 of law in the proper sense of that term. And 
 if the State, supplying no corrective process, 
 carries into execution a judgment of death or 
 imprisonment based upon a verdict thus pro- 
 duced by mob domination, the State deprives 
 the accused of his life or liberty -without due 
 process of law. But the State may supply such 
 corrective process as to it seems proper. -^^ -* -**• 
 Repeated instances are reported of verdicts and 
 judgments set aside and new trials granted for 
 disorder or mob violence interfering -with the 
 prisoner's right to a fair trial. ■* •* * The 
 Georgia courts, in the present case, proceeded 
 upon the theory that Frank would have been 
 entitled to this relief had his charges been true, 
 and they refused a new trial only _ because 
 they found his charges untrue save in a few 
 minor particulars not amotmting to more than 
 
 125 
 
Fifth Aiuendment. 
 
 /v. /. THE CONSTITUTION 
 
 Presence of Accused. 
 
 irregularities and not prejudicial to the ac- 
 cused. There was here no denial of due 
 Erocess of law." (l">ank v. Mangum, 237 
 r. S.,309.) 
 
 Prisoner unable to hear testimony. — 
 "\\'lK'ie t lio j)rLs()nor wad couvictod of the crime 
 of munlcr and sentenced to imprisonment for 
 life, althou.i!;li he did not hear a word of the 
 evidence given upon the trial because of his 
 alnu)st total deafness, hLs inability to hear 
 being such that it required a person to speak 
 through an ear trumpet close to his ear in order 
 that such person should be heard by him, and 
 the trial court having failed to see to it that the 
 testimony in the caae was repeated to him 
 through his ear trumpet, this court said that 
 this was 'at most an error, which did not take 
 away from the court its jurisdiction over the 
 subject matter and over the person accused.' " 
 (Frank v. Mangum, 237 U. S., 309, explaining 
 Felts V. Murphy, 201 U. S., 123, 129.) 
 
 Failure to arraign. — "In Garland v. Wash- 
 ington, 232 U. S., 042, 045, it was held that the 
 want of a formal arraignment, treated by the 
 State as depriving the accused of no sub- 
 stantial right, and as having been waived, and 
 thereby lost, did not amount to depriving de- 
 fendant of his liberty vdthout due process of 
 law." (Frank v. Mangum, 237 U. S., 309.) 
 
 V. Presence of Accused at Trial. 
 
 Proceedings in absence of accused. — It 
 was provided by a statute of Utah that, "if the 
 indictment is for a felony, the defendant must 
 be personally present at his trial; but if for a 
 misdemeanor, the trial may be had in the 
 absence of the defendant." Held that, under 
 this statute, the accused can not waive his right 
 to be present at a trial for felony, even durmg 
 the trial of challenges of jurors. "We are of 
 opinion that it was not witnin the power of the 
 accused or hia counsel to dispense with the 
 statutory requirement as to his personal presence 
 at the trial. The argument to the contrary 
 necessarily proceeds upon the ground that he 
 alone is concerned as to the mode by which he ' 
 may be deprived of his life or liberty, and that 
 the chief object of the prosecution is to punish 
 him for the crime charged. But this is a mis- 
 taken view, as well of the relations which the 
 accused holds to the public as of the end of 
 human punishment. * * * The public has 
 an interest in his life and liberty. Neither can 
 be lawfully taken except in the mode pre 
 scribed by^ law. That which the law makes 
 essential in proceedings involving the depriva- 
 tion of life or liberty can not be dispensed with 
 or affected by the consent of the accused, much 
 less by his mere failure to object to unauthor- 
 ized methods. The great end of punishment 
 is not the expiation or atonement of the offense 
 committed, but the prevention of future 
 offenses of the same kind. * * * Such be- 
 ing the relation which the citizen holds to the 
 public, and the object of punishment for public 
 wrongs, the legislature has deemed it esssential 
 to the protection of one whose life or liberty 
 is involved in a prosecution for felony that he 
 shall be personally present at the trial ; that is, 
 at every stage of the trial when his substantial 
 
 rights may be affected by the proceedings 
 against him. If he be deprived of his life or 
 hborty without being so present, such depriva- 
 tion would be without that due process of law 
 required by the ("(mstitution." (Hopt v. Utah, 
 110 U. S., 574; distinguished in Diaz v. U. S., 
 223 U. S., 442, 458, and in Frank v. Mangum, 
 237 U. S., 309.) 
 
 "The personal presence of the accused, from 
 the beginning to the end of a trial for felony, 
 involving life or liberty, as well as at the time 
 final judgment is rendered against him, may be, 
 and must be a.ssumed to be, vital to the proper 
 conduct of his defense, and can not be dis- 
 pensed with." (Schwab v. Berggren, 143 U. S., 
 442, distinguished in Diaz v. U. S., 223 U. S., 
 442, 458.) 
 
 Due process of law does not require the pres- 
 ence of the accused in an appellate court at the 
 time the judgment sentencing him to death is 
 affirmed. (Schwab v. Berggren, 143 U. S., 442.) 
 
 "In trials for felonies, it is not in the power of 
 the prisoner, either by himself or his counsel, 
 to waive the right to be personally jiresent dur- 
 ing the trial. The making of challenges is an 
 essential part of the trial of a person accused of 
 crime, and it is one of his substantial rights to 
 be brought face to face with the jurors when the 
 challenges are made." (Lewis v. U. S., 146 
 U. S., 370; distinguished in Diaz v. U. S., 223 
 U.S., 442, 458.) 
 
 "It is the law of Kentucky that occasional 
 absence of the accused from the trial from 
 which no injury results to his substantial rights 
 is not reversible error. And we think, in apply- 
 ing that rule to the case at bar, plaintiff in error 
 was not deprived of due process of law within 
 the meaning of the fourteenth amendment of 
 the Constitution of the United States." (How- 
 ard V. Kentucky, 200 U. S., 164.) "It may be 
 admitted that the words 'due process of law,' 
 as used in the fourteenth amendment, protect 
 fundamental rights. What those are can not 
 ever be the cause of much dispute. In giving 
 them protection, however, it was not designed, 
 as was observed by the Chief Justice in In re 
 Converse, supra (137 U. S., 024) 'to interfere with 
 the power of the State to protect the lives, 
 liberty, and property of its citizens; nor with 
 the exercise of that power in the_ ad judication 
 of the courts of the State in administering the 
 process provided by the law of the State.'" 
 (Howard V. Kentucky, 200 U. S., 164, 173.) 
 
 "While the rule may be otherwise in cases 
 that are capital, or where the accused is in 
 custody imder the control of the court, or where 
 special statutory provisions apply," neverthe- 
 less, "where the offense is not capital, and the 
 accused is not in custody, his voluntary absence 
 does not nullify what has been done in, or pre- 
 vent the completion of, his trial, but operates 
 as a waiver of his right to be present and leaves 
 the court free to proceed." (Diaz v. U. S., 223 
 U. S., 442.) 
 
 "The accused was represented and heard by 
 cotmsel at every stage of the proceedings. He 
 also was present in person at all the proceed- 
 ings preliminary to the trial and at the time it 
 was begun and during the major part of it. 
 But on two occasions, in the latter part of the 
 trial, he voluntarily absented himself and sent 
 
 126 
 
Presence of Accused. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Fifth Amendment. 
 
 to the court a message expressly consenting 
 that the trial proceed in his absence, which was 
 done. On these occasions two witnesses for 
 the Government were both examined and cross- 
 examined. No complaint grounded upon liis 
 absence was made in the trial court or in the 
 Supreme Court of the Philippines; and the 
 objection now made is, not that he did not 
 voluntarily waive his ri<jht to be present, if he 
 could waive it, but that it coidd not be waived, 
 and that the court was therefore without power 
 to proceed in his absence." Under these cir- 
 cumstances ' ' held that the continuation of the 
 trial during the voluntary absence of the ac- 
 cused in this case wliile it proceeded with his 
 counsel present did not violate the provisions 
 of section 5 of the Philippine act of July 1, 1902, 
 gi\ang him a right to be present and heard." 
 (Diaz V. U. S., 223 U. S., 442.) 
 
 "In cases of felony our courts, with substan- 
 tial accord, have regarded it [right of accused to 
 be present] as extending to every stage of the 
 trial, inclusive of the empaneling of the jury 
 and the reception of the verdict, and as being 
 scarcely less important to the accused than the 
 right of trial itself. And with like accord they 
 have regarded an accused who is in custody and 
 one who is charged with a capital offense as in- 
 capable of waiving the right; the one, because 
 his presence or absence is not within his own 
 control, and the other, because, in addition to 
 being usually in custody, he is deemed to suffer 
 the constraint naturally incident to an appre- 
 hension of the awful penalty that would follow 
 conviction." (Diaz v. U. S., 223 U. S., 442, 
 455.) 
 
 "But, where the offense is not capital and the 
 accused is not in custody, the prevailing rule 
 has been, that if, after the trial has begun in his 
 presence, he voluntarily absents himself, this 
 does not nullify what has been done or prevent 
 the completion of the trial, but, on the contrary, 
 operates as a waiver of his right to be present 
 and leaves the court free to proceed with the 
 trial in like manner and with like effect as if he 
 were present." (Diaz v. U. S., 223 U. S., 442, 
 455.) 
 
 Where an accused who was at large on bail 
 was present when his trial was begun and during 
 the taking of a portion of the evidence for the 
 Government, and then fled the jurisdiction, the 
 trial proceeded in his absence, the remaining 
 evidence being taken and a verdict of guilt 
 returned. Subsequently he was apprehended, 
 and sentence was then imposed, notwithstand- 
 ing his objection that the trial had proceeded in 
 his absence. On appeal the judgment was 
 affirmed, the court stating: "It does not seem to 
 us to be consonant with the dictates of common 
 sense that an accused person, being at large 
 upon bail, should be at liberty, whenever he 
 pleased, to withdraw himself from the courts of 
 his country and to break up a trial already com- 
 menced. The practical result of such a propo- 
 sition, if allowed to be law, would be to prevent 
 any trial whatever until the accused person 
 himself should be pleased to permit it. For by 
 thestatute (Rev. Stat, of U. S., sec. 1015) he is 
 entitled as a matter of right to be enlarged upon 
 bail 'in all criminal cases where the offense 
 is not punishable by death' ; and, therefore, in 
 
 all such cases he may by absconding prevent a 
 trial. This would be a travesty of justice which 
 could not be tolerated; and it is not required or 
 justified by any regard for the right of personal 
 liberty. On the contrary, the inevitable result 
 would be to abridge the right of personal liberty 
 by abridging or restricting the right now granted 
 by the statute to be abroad on bail until the ver- 
 dict is rendered. But we do not think that any 
 rule of law or constitutional principle leads us to 
 any conclusion that would be so disastrous as 
 well to the administration of justice as to the 
 true interests of civil liberty." (Falk v. U. S., 
 15 App. D. C, 446, 454, quoted approvingly in 
 Diaz V. U. S., 223 U. S., 442, 457.) 
 
 "The question is one of broad public policy 
 whether an accused person, placed upon trial for 
 crime and protected by all the safeguards with 
 which the humanity of our present criminal law 
 sedulously surrounds him, can with impunity 
 defy the processes of that law, paralyze the pro- 
 ceedings of courts and juries and turn them into 
 a solemn farce, and ultimately compel society, 
 for its own safety, to restrict the operation of the 
 principle of personal liberty. Neither in crim- 
 inal nor in civil cases will the law allow a person 
 to take advantage of his own wrong. And yet 
 this would be precisely what it would do if it 
 permitted an escape from pri.son, or an abscond- 
 ing from the jurisdiction while at large on bail, 
 during the pendency of a trial before a jury, to 
 operate as a shield." (Falk v. U. S., 15 App. 
 D. C, 446, 460, quoted approvingly in Diaz v. 
 U. S., 223 U. S.,442, 458.) 
 
 "The right of a prisoner to be present at his 
 trial does not include the right to prevent a 
 trial by unseemly disturbance. The defendant 
 had the opportunity to be present at the whole 
 of his trial. He was, in fact, present while the 
 jury were being empaneled and the evidence 
 was being introduced. He was absent during a 
 part of the opening, only because of his own 
 disorderly conduct. It does not lie in his 
 mouth to complain of the order which was made 
 necessary by his own misconduct, and which he 
 could at any time have terminated by signi- 
 fying his willingness to avoid creating disturb- 
 ance. " (U. S. V. Davis, 25 Fed. Cas. No. 14923, 
 cited in Diaz v. U. S., 223 U. S., 442, 456.) 
 
 "If, after the trial of an indictment is com- 
 menced, the accused escapes from custody, and, 
 for that reason, his further attendance can not 
 be had, the trial may proceed in his absence. " 
 (U. S. V. Loughery, 26 Fed. Cas. No. 15631; cited 
 in Diaz v. U. S., 223 U. S., 442, 456.) 
 
 "In cases where the prisoner's life or Liberty 
 is in peril he must be present during the whole 
 of the trial and until final judgment. If absent, 
 there is a want of jurisdiction of the person, and 
 the court can not proceed with the trial or re- 
 ceive the verdict or pronounce the final judg- 
 ment. A prisoner in custody is not a free agent; 
 his being in court depends upon proper author- 
 ity bringing him there; he can not waive any- 
 thing b>^ his absence. * * * But where the 
 offense is trivial and life or liberty is not in 
 eopardy, therule is to be relaxed. " (Weirman 
 I). U. S.,_36Ct. Cls., 236.) 
 
 "If it is desirable or necessary that the pris- 
 oner in a civil court be present at every proceed- 
 ing after indictment, it seems to be still more so 
 
 127 
 
Filth Amendment. 
 
 rt. 1. THE CONSTITUTION. 
 
 Remedy of Accused. 
 
 tliat a prisoner l)efore a coiirt-martial should he 
 present, for ho onliiuirily is not ropreHcntcd l>y 
 counsel learned in the law and watch lul of his 
 interests, but (as in this case) by some naval 
 officer acting from a humane motive. " (Weir- 
 man V. U. S., 36 Ot. 01s., 23G.) 
 
 "The court will always roipiire the ])re8ence 
 of the prisoner in court during trial, if he l)e in 
 close custody of the law, unless in case the 
 prisoner exi)re88ly himself, and not l)y counsel, 
 waives his right to l)e present, but the court 
 may require it if it shall deem it advisaljle 
 to do so." (State v. Kelly, 97 N. C, 404, 
 quoting Falk v. U. S., 15 App. D. C, 457.) 
 
 The action of a naval court-martial, in per- 
 mitting the accused upon a request made ex- 
 pressly l)y himself and not merely l>y counsel to 
 be absent from the immediate presence of the 
 court during the testimony of expert witnesses 
 for the defense concerning the physical and 
 mental condition of the accused, did not invali- 
 date the proceedings, such action l)eing due to 
 hTimanitarian confiiderations based upon repre- 
 Bentations of counsel for the accused as to the 
 latter 's health, and that it would be "cruel" to 
 require his personal attendance during speci- 
 fied portions of the trial. (G. C. M. Rec. 29422. 
 See also Simon r. Craft, 182 U. S., 427, 435, ex- 
 plained in Frank v. Mangum, 237 U. S.,309.) 
 Nevertheless courts-martial are empowered to 
 require the j^resence of the accused during the 
 entire proceedings^ and should always exercise 
 this power to avoid any possible irregularity. 
 (C. M. 0. 51, 1914.) 
 
 The presence of the judge-advocate when a 
 naval court-martial is closed for deliberation and 
 when the accused, his counsel, and spectators 
 have consequently withdrawn, while a grave 
 irregularity and a disregard of Navy Regula- 
 tions, would not necessarily render the proceed- 
 ings invalid. (C. M. O. 6, 1915; see also Ex 
 parte Tucker, 212 Fed. Rep., 569.) 
 
 A distinction exists "between what the com- 
 mon law requires with resjiect to trial l>y jury in 
 crimijial cases and what the States may enact 
 without contravening the 'due process' clause 
 of the fourteenth amendment. " Thus "in the 
 Lewis case [above noted] which was a convic- 
 tion of murder in a circuit court of the United 
 States, the trial practice being regulated by the 
 common law, it was held to be a leading prin- 
 ciple, pervading the entire law of criminal pro- 
 cedure, that after indictment nothing shoiild be 
 done in the absence of the prisoner; that the 
 making of challenges is an essential part of the 
 triiil, and it was one of the substantial rights of 
 the prisoner to l)e brought face to face with the 
 jurors at the time the challenges were made; 
 and that in the absence of a statute, this right as 
 it existed at common law must not beabridged ; " 
 while in Howard v. Kentucky (above noted) 
 "this court, finding that by the law of the State 
 an occasional absence of the accused from the 
 trial, from which no injury resulted to his sub- 
 stantial rights, was not deemed material error, 
 held that the application of this rule of law did 
 not amount to a denial of due process within the 
 meaning of the fourteenth amendment. In 
 fact, this coTirt has sustained the States in estab- 
 lishing a great variety of departures from the 
 common-law procedure respecting jiuy trials." 
 (Frank v. Mangum, 237 U. S., 309.) 
 
 "The practice established in the criminal 
 courts of Georgia that a defendant may waive 
 his right to be present when the jury'renders 
 its verdict and that such waiver may be given 
 after as well as before the CAent * * * is a 
 regulation of criminal procedure that it is 
 within the authority of the State to adopt. In 
 adopting it the State declares in effect, as it 
 reasonably may declare, that the right of the 
 accused to be present at the reception of the 
 verdict is but an incident of the right of trial l\v 
 jury; and since the State may, without infring- 
 ing the fourteenth amendment, abolish trial by 
 jury, it may limit the effect to be given to an 
 error respecting one of the incidents of such 
 trial. The presence of the prisoner when the 
 verdict is rendered is not so essential a part of 
 the hearing that a rule of practice permitting 
 the accused to waive it, and holding him bound 
 by the waiver, amounts to a deprivation of 'due 
 process of law.' " (Frank v. Mangum, 237 
 U. S., 309.) 
 
 "As to the 'due process of law' that is re- 
 quired by the fourteenth amendment, it is 
 perfectly well-settled that a criminal {prosecu- 
 tion in the courts of a State, based upon a law 
 not in itself repugnant to the Federal Con- 
 stitution, and conducted according to the 
 settled course of judicial proceedings as es- 
 tablished by the law of the State, so long as it 
 includes notice and a hearing, or an opportunity 
 to be heard, before a court of competent juris- 
 diction, according to established modes of 
 procedure, is 'due process' in the constitutional 
 sense." (Frank v. Mangum, 237 U. S., 309.) 
 
 VI. Remedy when Due Process Denied. 
 
 Habeas corpus proceeding's where due 
 process of law alleged to have been 
 denied. — "It is clear that the civil courts are 
 in no sense appellate tribunals for the revision 
 of proceedings in courts-martial. It has been 
 decided that in such cases the civil courts 
 should not interfere if it appears that the court- 
 martial has jurisdiction of the person and of the 
 subject matter wliich was tried before it, 
 and that errors of procedure in military courts 
 can be corrected only by the proper military 
 authorities. * * * It is true that Tucker's 
 legal rights were disregarded by the court- 
 martial when it allowed the judge advocate to 
 be present, even for a short time, at the closed 
 session; but I do not think it is the business of 
 this court to correct the error. The statute in 
 question relates to procedure, not to jurisdiction, 
 and the nonobservance of it by military tribu- 
 nals is a matter for the revising military authori- 
 ties, not for the civil courts." (Ex parte Tucker, 
 212 Fed. Rep., 569, citing act July 27, 1892, 
 sec. 2, 27 Stat., 277, relating to the Army; 
 there is no similar statute relating to trials 
 by naval court-martial.) 
 
 "If he is held in custody by reason of his con- 
 viction upon a criminal charge before a court 
 ha\ing plenary jurisdiction over the subject 
 matter or offense, the place where it was com- 
 mitted, and the person of the prisoner, it 
 results from the nature of the writ itself that 
 he can not have relief on habeas corpus. 
 Mere errors in point of law, however serious, 
 
 128 
 
Speedy Trial. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Sixth Amendment. 
 
 committed by a criminal court in the exercise 
 of its jurisdiction over a case properly subject 
 to its cognizance, can not be reviewed by 
 habeas corpus. That writ can not be employed 
 as a substitute for the writ of error." (Frank v. 
 Mangum, 237 U. S., 309.) 
 
 " Wliere it is made to appear to a court of the 
 United States that an applicant for habeas cor- 
 pus is in the custody of a State officer in the 
 ordinary course of a criminal prosecution, under 
 a law of tlie State not in itself repugnant to the 
 Federal Constitution, the writ, in the absence 
 of very special circumstances, ought not to be 
 issued until the State prosecution has reached 
 its conclusion, and not even then until the 
 Federal questions arising upon the record have 
 been brought before this court upon writ of 
 error." (Frank v. Mangum, 237 U. S., 309.) 
 
 "It is perfectly obvious that where such an 
 appeal is provided for, and the prisoner has had 
 the benefit of it, the proceedings in the appel- 
 late tribunal are to be regarded as a part of the 
 process of law under wliich he is held in custody 
 by the State, and to be considered in determin- 
 ing any question of alleged deprivation of his 
 life or liberty contrary to the fourteenth amend- 
 ment.'/ (Frank v. Mangum, 237 U.S., 309.) 
 
 " It is open to the courts of the United States, 
 upon an application for a writ of habeas corpus, 
 to look beyond forms and inquire into the very 
 substance of tlie matter, to the extent of 
 deciding whether the prisoner has been de- 
 prived of his liberty without due process of law, 
 and for tliis purpose to inquire into jurisdictional 
 facts, whether they appear upon the record or 
 not." (Frank v. Mangum, 237 U. S., 309.) 
 
 [ARTICLE VI.] 
 
 [Right to speedy and public trial by jury ; to confront witnesses ; to have 
 counsel, etc.] In all criminal prosecutions, the accused shall enjoy the right to a 
 speedy and public trial, by an impartial jury of the State and district wherein 
 the crime shall have been committed, which district shall have been previously 
 ascertained by law, and to be informed of the nature and cause of the accusa- 
 tion; to be confronted with the witnesses against liim; to have compulsory 
 process for obtaining witnesses in his favor, and to have the Assistance of Coun- 
 sel for his defence. 
 
 I. Speedy Trial. 
 II. Public Trial. 
 
 III. Jury Trial. 
 
 IV. Impartial Trial. 
 Right to be Informed of Accusation. 
 Confronting Witnesses. 
 Compulsory Process for Obtaining 
 
 Witnesses. 
 Assistance of Counsel. 
 
 V 
 
 VI 
 
 VII 
 
 VIII 
 
 I. Speedy Trial. 
 
 In general.^" The right of a speedy trial 
 is necessarily relative. It is consistent with 
 delays and depends upon circumstances. It 
 secures rights to a defendant. It does not pre- 
 clude the rights of public justice." (Beavers 
 V. Haubert, 198 U. S., 86.) 
 
 "The discipline necessary to the efficiency 
 of the Army and Navy required other and 
 swifter modes of trial than are furnished by the 
 common law courts." (Ex parte Milligan, 4 
 Wall., 3, 123.) 
 
 Provisions to secure this right in the 
 Navy. — No person shall be tried by naval court- 
 martial for any offense committed more than 
 two years before the issuing of the order for 
 his trial, unless by reason of some manifest 
 impediment he shall not have been amenable 
 to justice within that period. (Art. 61, A. G. 
 N., sec. 1624, R. S., as amended by act Feb. 
 25, 1895, 28 Stat., 680. As to special provisions 
 relating to trials for desertion, see same act. 
 
 art. 62, A. G. N.) This legislation was in- 
 tended "to require reasonable diligence on 
 the part of public officers in apjirehending 
 offenders and bringing them to justice, and 
 not to place a premium on the ingenuity of 
 such offenders as succeeded in concealing 
 their whereabouts and escaping apprehension 
 for a limited period." (C. M. O. 27, 1913; 
 file 26251-9538, Oct. 30, 1914.) 
 
 "Offenses shall not be allowed to accumu- 
 late in order that sufficient matter may thus 
 be collectively obtained for a trial, without 
 giving due notice to the offender." (Art. 
 R-1411, Navy Regs., 1913.) 
 
 "The certainty of prompt punishment ia 
 more conducive to discipline than punish- 
 ment deferred long after the offense." (Art. 
 R-1404, Navy Regs., 1913.) 
 
 'Whenever practicable, the trial by deck 
 court of a person in the Navy shall take place 
 "within 48 hours after the offense ia commit- 
 ted" (Naval Courts and Boards, 1917, sec. 480.) 
 If it is decided by the competent officer that 
 the accused shall be brought to trial before a 
 courts-martial, "the court shall be assembled 
 for that purpose as soon as the nature of the 
 case and the interests of the public service 
 will allow." (Art. R-1408, Navy Regs., 1913.) 
 
 " WTien the proceedings of any general court- 
 martial have commenced, they shall not be 
 suspended or delayed on account of the ab- 
 sence of any of the members, provided five or 
 more are assembled; but the court is enjoined 
 to sit from day to day, Sundays excepted, until 
 sentence is given, unless temporarily ad- 
 journed by the authority which convened it," 
 (Art. 45, A. G. N., sec. 1624, R. S.) 
 
 129 
 
Sixth Amendment. 
 
 PL 1. THE CONSTITUTION. 
 
 Jury Trial. 
 
 It should not be attempted to conduct a 
 trial by general court-martial in undue 
 haste ami at unusual hours. The aclioii of a 
 naval cdurt-martial, after completing a trial 
 whieh hail lasted several days, in immediately 
 commencing another trial at 5.15 in the after- 
 noon and completing it the same day, when the 
 case was not one of extraordinary urgency, is not 
 a]ii)roved by the Navy Department. In this 
 case, the court's findings and the errors made 
 in the record strikingly exemplified the con- 
 sequences of its action, and must be attributed 
 to some extent to "overfatigue of the mind" 
 and undue haste resulting from the unusual 
 hour at which the proceedings were com- 
 menced and hurried to a conclusion. Had the 
 accused been convicted and given a substan- 
 tial punishment, counsel in his behalf might 
 well have urged that the case had not been 
 given the time and careful consideration to 
 which it was entitled. (C. M. O. 27, 1913; 
 Naval Courts and Boards, 1917, sec. 216.) 
 
 II. Public Trial. 
 
 In general.— "The sessions of courts-mar- 
 tial shall be public, and all persons except such 
 as may be required to give evidence shall be 
 admitted." (Naval Courts and Boards, 1917, 
 sec. 217.) 
 
 All deliberation of a court-martial takes 
 
 f)lace with closed doors. "At other times 
 except as to those persons who have been 
 summoned as witnesses] it is open to the pub- 
 lic, military or otherwise, with such limita- 
 tion as the capacity of the room or tent in 
 which it is held, and the convenience of the 
 court and parties before it, may dictate." 
 (Simmons, 3d ed., 175.) 
 
 [By act of March 3, 1913 (37 Stat., 731), re- 
 lating to the taking of evidence in equity pro- 
 ceedings under the Antitrust Act, it was pro- 
 vided that "the proceedings shall be open to 
 the public as freely as are trials in open court; 
 and no order excluding the public from at- 
 tendance on any sucli proceedings shall be 
 valid or enforceable."] 
 
 "A court of the United States ought 
 never to sit -with its doors of entrance 
 closed, so as to prevent publicity in its proceed- 
 ings, but its i)olice must be maintained. Where 
 the court has not prescribed any general rule or 
 made any special or particular order on the 
 subject, the specific duty of the marshal to 
 maintain and regulate its police according to 
 law is an incident of his general duty to at- 
 tend the court. WTien, during the pendency 
 of a particular proceeding, there is reason to 
 believe that an unrestricted admission of per- 
 sons of a known class or association would en- 
 danger the security of the administration of 
 justice, or in any manner prevent the police 
 of the court from being properly maintained, 
 the marshal, without excluding absolutely 
 such persons as a class, may adopt prudential 
 measures to prevent their indiscriminate ad- 
 mission, regulating the exercise of his discre- 
 tion so that their exclusion is not carried be- 
 yond the exigency of the particular occasion." 
 (U. S. V. Buck, 24 Fed. Cas. No. 14680.) 
 
 "The statutes regulating the course of pro- 
 cedure in military courts show that, in con- 
 
 templation of Congress, these courts stand on 
 the same footing as other judicial tribunals of 
 the country. Their sittings, for example, are 
 free to the attendance of the public, like those 
 of other courts * * *." (11 Op. Atty. 
 Gen., 137, 141.) 
 
 "^\^letller a court-martial may technically 
 within its legal right close its doors to the 
 public during the trial of an accused, such a 
 procedure is contrary to the authority of text 
 ■svriters on the subject, to the spirit of the Con- 
 stitution, and to the usual practice of the Fed- 
 eral courts. To permit closed sessions would 
 be to introduce a practice into the service that 
 might be made an instrument of oppression 
 contrary to the genius of our laws and institu- 
 tions, to a sound public policy, and one which, 
 while upon occasion might be of benefit to an 
 accused, could be made in cases a most objec- 
 tionable procedure." (File 2G504-115, Jan. 
 24, 1911.) 
 
 "The exclusion of persons in certain 
 cases [where the evidence is indecent], as 
 above indicated [decisions of State courts], may 
 have been allowed, but it seems to be contrary 
 to the spirit if not to the letter of the Constitu- 
 tion; and in the case of courts-martial [Navy] 
 it is certainly contrary to a practice that has 
 extended uniformly, so far as precedents have 
 been discovered, for very many years." 
 (File 26504-115, Jan. 24, 1911.) As to the ex- 
 clusion of certain classes of persons in trials by 
 State courts, see State v. Henslev (75 Ohio 
 Stat., 255, 9 Ann. Cas., 108); State v. Nyhus 
 (19 N. D., 326, 27 L. R. A. (N. S.), 487). 
 
 "The sessions of a general court-martial shall 
 be public, and in general all persons except 
 such as may be required to give evidence 
 shall be admitted . However, in cases where it 
 may seem desirable that certain classes of spec- 
 tators, such as women, children, and others, 
 should be excluded during the trial, the court, 
 when convened by the Secretary of the Navy 
 or the convening authority in other cases, 
 should communicate with the Secretary of 
 the Navy requesting permission therefor and 
 giving a full statement of the reasons." (C. 
 M. O. 51, 1914.) 
 
 III. Jury Trial. 
 
 Special cases. — See note to Article I, section 
 8, clause 14, "Trials by jury not required in the 
 Navy." 
 
 "The trial of all offenses committed upon the 
 high seas, or elsewhere out of the jurisdiction 
 of any particular State or district, shall be in 
 the district where the offender is found, or into 
 which he is first brought." (Act Mai-. 3, 1911, 
 sec. 41, 36 Stat., 1100.) 
 
 This legislation is not exclusive of the juris- 
 diction of a consular tribunal in China, etc., to 
 try for a similar offense committed on board a 
 private ship of the United States in a port of 
 the country in which the tribunal is established, 
 when the offender is not taken to the United 
 States. (In re Ross, 140 U. S., 453.) 
 
 A homicide committed on a naval hospital 
 ship at Olongapo, P. I., occurred "out of the 
 jurisdiction of any particular State or district." 
 (28 Op. Atty. Gen., 24. ^ 
 
 130 
 
Confronting Witnesses. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Sixth Amendment. 
 
 IV. Impartial Trial. 
 
 Right of challenge. — In trials by naval gen- 
 eral court-martial, ''the accused and the judge 
 advocate have the mutual right of challenge. It 
 is the duty of the judge advocate to ask the ac- 
 cused if he objects to anj^ member of tlie court 
 appointed to try him, and a minute of this in- 
 quiry and the answer thereto is invariably to 
 be entered on the record. As a general rule, 
 whatever objection either party may make to 
 any member shall be decided upon before the 
 court is sworn, but at any stage of the proceed- 
 ings prior to the findings challenges may be 
 made, either by tlie judge advocate or the ac- 
 cused, for cause not j^reviously known. * * * 
 The objection, the cause assigned, the state- 
 ment, if any, of the challenged member, and 
 the decision of the court shall be regularly and 
 specifically entered on the record." (Naval 
 Courts and Boards, 1917, sec. 277.) 
 
 Members of a naval court-martial may 
 testify as witnesses in a case and then resume 
 their seats as members. (Naval Courts and 
 Boards, 1917, sec. 139.) "Under the settled 
 law of e\'idence members of a jury are competent 
 witnesses in a criminal case on trial before them, 
 and it has been held that 'the analogy of a court- 
 martial is that of a jury in the trial of a ci\-il 
 case, the approving power in the former occu- 
 pying the relation of the judge in the latter.' " 
 Furthermore, the practice of permitti.ig the 
 judge in a civil court to testify as a witness in a 
 case before him is authorized by statute in at 
 least one State, has been judicially upheld in 
 other States, and has been practiced and upheld 
 in the highest court of England. (File 26251- 
 6020:11; see also Keves v. U. S., 15 Ct. Cls., 533; 
 affirmed 109 U. S., 336.) 
 
 The objection to a membei of a court-martial 
 continuing to sit as si;ch after testifying against 
 the accused, goes to the propriety of his sitting 
 under the circumstances, not to his legal capacity 
 thus to sit. Qo Op. Atty. Gen., 434.) 
 
 "Tlie rules in regard to tlie competency of 
 witnesses are the same in courts-martial as in 
 the courts of the common law. Hence, as we 
 have seen, the prosecutor is admissible as a 
 witness, as also are the members of the court." 
 Where a member testifies as a witness "he is 
 not thereby disqualified from resuming his seat 
 as a member of the court, but where there is a 
 sufficient number of members without him to 
 constitute the court, it is more in accordance 
 with the usage in ci-vil courts that he should 
 withdraw." (Greenleaf on Evidence, 16th ed., 
 sec. 487, p. 465.) 
 
 V. Right to be Informed of Accusation. 
 
 Arrests in the Navy.— "The person ac- 
 cused shall be furnished with a true copy of 
 the charges, with the specifications, at the time 
 he is put under arrest; and no other charges 
 than those so furnished shall be urged against 
 him at the trial, unless it shall appear to the 
 court that intelligence of such other charges had 
 not reached the officer ordering the court when 
 the accused was put under arrest, or that some 
 witness material to the support of such charge 
 was at that time absent and can be produced 
 at the trial; in which case reasonable time shall 
 
 be given to the accused to make his defense 
 against such new charge." (Art. 43, A. G. N., 
 sec. 1624, R. S. See note to said section for 
 cases construing and applying this article.) 
 
 VI. Confronting Witnesses. 
 
 This constitutional provision does not apply 
 to the Navy. (MuUan v. U. S., 42 Ct. Cls., 157, 
 176; affirmed 212 U.S., 516.) 
 
 Use of depositions. — It is provided by 
 statute that "the depositions of witnesses may 
 be taken on reasonable notice to the opposite 
 party, and when duly authenticated, may be 
 put in evidence before naval courts, except 
 in capital cases and cases where the pun- 
 ishment may be imprisonment or confinement 
 for more than one year as follows: First, depo- 
 sitions of civilian witnesses residing outside 
 the State, Territory, or district in which a 
 naval court is ordered to sit; second, deposi- 
 tions of persons in the naval or military service 
 stationed or residing outside the State, Terri- 
 torj', or District in which a naval court is 
 ordered to sit, or who are under orders to go 
 outside of such State, Territory, or District; 
 third, where such naval court is convened on 
 boai'd a vessel of the United States, or at a 
 nav^al station not within any State, Territory, or 
 District of the United States, the depositions 
 of witnesses may be taken and used as herein 
 proA'ided whenever such witnesses reside or are 
 stationed at such a distance from the place 
 where said naval com't is ordered to sit, or are 
 about to go to such a distance as, in the judg- 
 ment of the convening authority, would render 
 it impracticable to secure their personal at- 
 tendance." (Act Feb. 16, 1909, sec. 16, 35 
 Stat., 622; see also art. 25 Articles of War. sec. 
 1342, R. S., as amended by act of Aug. 29, 
 1916, 39 Stat., 655, which contains broader pro- 
 visions with reference to use of depositions 
 before Army courts; and see 9 Op. Attv. Gen., 
 311, 312, and file 26260-1392, June 29, 1911, 
 p. 30; see also 2 Op. Atty. Gen., 344.) 
 
 "In any case where it is necessaiy to use 
 depositions at the trial thereof and depositions 
 are so used, the maximum punishment under 
 such circumstances shall in no case exceed im- 
 prisonment or confinement for one year." 
 (Naval Courts and Boards, 1917, sec. 390.) 
 
 *'The proceedings of courts of inquiry 
 shall * * * in all cases not capital, nor ex- 
 tending to the dismissal of a commissioned or 
 warrant officer, be e\'idence before a court-mar- 
 tial, provided oral testimony can not be ob- 
 tained." (Art. 60, A. G. N., sec. 1624, R. S.; 
 C. M. 0. 46, 1917, p. 13; Naval Courts and 
 Boards, 1917, sec. 198, Changes No. 1.) 
 
 "If, in the case of a commissioned or warrant 
 officer, the maximum sentence, under the 
 * * * limitations of punishment, extends to 
 dismissal, and if, upon the trial, oral testimony 
 can not be obtained, by reason of which fact 
 the record of proceedings of the court of inquiry, 
 upon whose findings such trial is wholly or 
 partially based is used in CAddence, the maxi- 
 mum punishment which may be imposed shall 
 not extend to dismissal, but shall, instead, be 
 limited not to exceed the loss of 100 numbers 
 in rank." (Naval Courts and Boards, 1917, 
 sec. 390.) 
 
 131 
 
Sixth Amendment. 
 
 Ft. 1. THE CONSTITUTION. Attendance of Witnesses. 
 
 " All testimony before a summary conrt- 
 martialsluill be, tjiveu orally, upon oath or allir- 
 nuition, administered by the senior member of 
 the court." (Art. 29. A. G. N., sec. 1G24, K. S.) 
 
 In proceedings before courts of inquiry 
 ' ' the ]iarty whose conduct shall be tlie subject of 
 inquiry, or his attorney, shall have the right to 
 cross-examine all the wdtnesses." (Art. 59, 
 A. G. N., sec. 1G24, R. S.) 
 
 "The primary object of the constitu- 
 tional provision in question was to prevent 
 depositions or ex parte aflidavits, such as were 
 Bometimes admitted in civil cases, being used 
 against the prisoner in lieu of a personal exam- 
 ination and cross-examination of tlie witness in 
 which the accused has an opportunity, not only 
 of testing the recollection and sifting the con- 
 science of the witness, but of compelling him 
 to stand face to face with the jury in order that 
 they may look at him, and judge by his de- 
 meanor upon the stand and the manner vn 
 which he gives his testimony whether he is 
 worthy of belief." (Mattox v. U. S., 156 U. S., 
 240.) 
 
 The admission of a deposition in evidence 
 against an accused on trial in a State court does 
 not violate any right which he possesses under 
 the Federal Constitution. The provision of the 
 sixth amendment relating to the subject does 
 not apply to State courts, and the right to be 
 confronted with the witnesses against him does 
 not extend to the defendant in a State cotirt 
 under the provision of the fourteenth amend- 
 ment that no State shall deprive any person of 
 life, liberty, or property "without due process 
 of law. ' ' The admission of the deposition ' ' was 
 but a slight extension of the rule of the common 
 law, even as contended for by counsel. The 
 extension is not of such a fundamental char- 
 acter as to deprive the accused of due process of 
 law * * *. The accused has, as held by 
 the State court in such case, been once con- 
 fronted with the witness and has had oppor- 
 tunity to cross-examine him, and it seems rea- 
 sonable that when the State can not procure 
 the attendance of the witness at the trial and 
 he is a nonresident and is permanently beyond 
 the jurisdiction of the State that his deposition 
 might be read equally as well as when his at- 
 tendance could not be enforced because of 
 death or of illness or his evidence given by 
 reason of insanity." (West v. Louisiana, 194 
 U. S., 258.) 
 
 Dying declarations. — This provision of the 
 Constitution does not prevent the admission of 
 dying declarations in accordance with rules of 
 evidence which were well established long be- 
 fore the adoption of the ConstitTition. (Kirby 
 V. U. S., 174 U. S., 61.) 
 
 "Witness absent by fault of accused. — 
 ' 'The Constitution gi\'es the accused the right to 
 a trial at which he should be confronted with 
 the witnesses against him; biit if a witness is 
 absent by his own ^vrongful proctirement he 
 can not complain if competent evidence is ad- 
 mitted to supply the place of that which he 
 had kept away. The Constitution does not 
 guarantee an accused person against the legiti- 
 mate consequences of his o^vn wrongful acts. 
 It grants him the privilege of being confronted 
 
 with the witnesses against him, but if he vol- 
 untarily keeps the witnesses away he can not 
 insist on his privilege. If, therefore, when 
 absent ))y his procurement, their evidence is 
 supplied in some lawful way, he is in no con- 
 dition to assert that his constitutional rights 
 have been violated." (Reynolds v. U. S., 98 
 U. S.,160.) 
 
 Admissions as to what -witness would 
 testify if present. — "Article 6 of the amend- 
 ments * * * gives the accused a right to a 
 trial l)y jury. But the same article gives him 
 the fiirlher right to be confronted with the wit- 
 nesses against him and to have the assistance of 
 counsel . Is it possible than an accused can not 
 admit and be bound by the admission that a 
 witness not present would testify to certain 
 facts? Can it be that if he does not wish the 
 assistance of counsel and waives it the trial is 
 invalid? It seems only necessary to ask these 
 questions to answer them. "NMien there is no 
 const itTitional nor statutory mandate and no 
 public policy prohibiting, an accused may 
 waive any privilege which he is given the 
 right to enjoy." (Schick v. U.S., 195 U. S., 65, 
 71; MuUan v. U. S., 212 U. S., 516, 520.) 
 
 '* A commissioned oflBLcer of the Navy can 
 waive the provisions of article 60 of section 
 1624, Revised Statutes, and allow the proceed- 
 ings of a court of inquiry to be evidence on a 
 court-martial the sentence of which may extend 
 to his dismissal; * * * and where, at the 
 reqxiest of such an officer, the Secretary of the 
 Navy convenes a court-martial to try him on 
 matter which had already been the subject of 
 a court of inquiry, on condition that the pro- 
 ceedings of such court of inquiry be evidence, 
 each party having the privilege, however, of 
 introducing other evidence, the accused is not 
 deprived of any substantial right so that the 
 sentence of the court-martial is invalidated." 
 (Mullan V. U. S., 212 U. S., 516.) 
 
 VII. Compulsory Process for Obtaining 
 Witnesses. 
 
 A naval court-martial or court of in- 
 quiry has power to issue like process to com- 
 pel witnesses to appear and testify which 
 United States courts of criminal jurisdiction 
 within the State, Tenitory, or district where 
 such naval court is ordered to sit may lawfully 
 issue; and persons duly subpoenaed as wit- 
 nesses before general courts-martial or courts of 
 inquiry, who refuse to appear or to testify, may 
 be punished by fine and imprisonment, except 
 where such persons reside beyond the State, 
 Territory, or district in which such naval court 
 is held. (Act Feb. 16, 1909, sees. 11 and 12, 35 
 Stat., 621, 622.) 
 
 ' ' The accused is, in general, entitled to have 
 all the material witnesses for his defense sum- 
 moned, except when their testimony would be 
 merely cumulative and evidently add nothing 
 to the strength of his case. As far as possible 
 he should be allowed a full and free defense, as 
 the least denial to him of any proper facility, 
 opportunity, or latitude for it may serve to de- 
 feat the ends of justice." (Naval Courts and 
 Boards, 1917, sec. 126.) 
 
 132 
 
Suits at Common Law. 
 
 PL 1. THE CONSTITUTION. 
 
 Seventh. Amendment. 
 
 The Navy Department will not, at the ex- 
 pense of the United States, summon witnesses 
 from a distance, either for the prosecution or 
 the defense, who have no personal knowledge 
 of the facts at issue. The best e\ddence of the 
 character of the accused is his official record in 
 the service, which is furnished the judge advo- 
 cate; while members of the court-martial in this 
 case, and officers who are on duty at the place 
 of trial, have had service which should render 
 them fully competent to qualify as experts and 
 testify as such either for the prosecution or the 
 defense. (File 26251-7777:3, July 5, 1913; 
 Naval Courts and Boards, 1917, sec. 125.) 
 
 [Medical experts are in practice employed 
 and paid by the accused, ancl are not summoned 
 by the Government as witnesses for the accused. 
 G. C. M. Rec. Nos. 28613, 29422; Ct. oflnq. 
 Rec. No. 5777; C. M. O. 20-1915, p. 6; see also 
 note to sec. 848, R. S.] 
 
 As to right of compulsory process to compel 
 Members of Congress to attend and testify be- 
 fore naval courts, see note to Article I, section 
 6, clause 1. Upon question of issuing process 
 to secure the attendance of the President as a 
 witness, see note to Article II, section 1, 
 clause 1. 
 
 VIII. Assistance of Counsel. 
 
 Trials in the Navy. — In trials by naval 
 court-martial the accused is entitled to coun- 
 sel as a right, and the court can not properly 
 deny him the assistance of a professional or other 
 adviser. Enlisted men to be tried shall be par- 
 ticularly advised of their rights in the premises, 
 and should be represented by counsel, if prac- 
 ticable, unless they explicitly state that they do 
 not desire such assistance. "VMien the accused 
 has no legal adviser, the commandant of the navy- 
 yard or station, the commander in chief, or the 
 senior officer present, within whose jurisdiction 
 the court sits, shall, if the accused so requests, 
 detail a suitable officer to act as his counsel. 
 If there be no such officer available, the fact 
 shall be reported to the convening authority 
 for action. An officer so detailed shall perform 
 such duties as usually devolve upon the counsel 
 for the defense before civil courts in criminal 
 cases. As such counsel he shall use all legal 
 means to protect the interests of the accused 
 and to present to the court such defense as the 
 accused may have. (Naval Courts and Boards, 
 1917; sees. 265, 266.) 
 
 "The accused and his counsel have a right to 
 the opinion of the judge advocate, in or out of 
 court, upon any question of law arising out of 
 the proceedings." (Naval Courts and Boards, 
 1917, sec. 254.) 
 
 "In the event that the accused has no coun- 
 
 sel, the judge advocate shall protect his inter- 
 ests, having in mind, however, at all times his 
 duties as prosecutor." (Naval Courts and 
 Boards, 1917, sec. 255.) 
 
 "The complainant and all defendants or in- 
 terested parties before a court of inquiry may 
 be allowed to have friends or counsel present 
 during open court. " (Naval Courts and Boards, 
 1917, sec. 508.) "The party whose conduct 
 shall be the subject of inquiry, or his attorney, 
 shall have the right to cross-examine all the wit- 
 nesses." (Art. 59, A. G. N., sec. 1624, R. S.) 
 
 \\'hen an enUsted man, while a prisoner at 
 large aAvaiting trial by summary court-martial, 
 was afforded ample time in which to secure 
 civilian counsel, but at his trial requested a 
 postponement, for such time as he would be per- 
 mitted, to go in person to some city in the State 
 for the puqiose of engaging counsel, the court 
 pro23erly decided that this request was unrea- 
 sonable. This action of the court did not deny 
 the accused the right to be represented by civil- 
 ian counsel, but decided in effect that, as he had 
 had ample time and opportunity to secure coun- 
 sel and had failed to do so, his demand that he 
 be set at Uberty for this purpose was unreason- 
 able. The accused refused to allow any officer 
 of the Na\^' on duty at place of trial to act as his 
 counsel, whereupon the court properly decided 
 that the accused " had denied himself the bene- 
 fit of counsel," and proceeded with the trial. 
 (File 26287-15:37, Apr. 7, 1913, S. C. M. Rec. 
 No. 5131, 1913.) 
 
 " The courts have repeatedly decided that the 
 defendant in a criminal case in which counsel is 
 appointed for him by the Government has no 
 choice in the matter and his wishes even are not 
 to be consulted as to the individual who shall be 
 designated to defend him." (File 26251-6020: 
 11, July 7, 1913.) 
 
 When it is contended by civilian counsel em- 
 ployed by the accused after completion of the 
 trial, " that the accused was not properly repre- 
 sented by counsel," the commissioned officer 
 appointed to defend him being incompetent, 
 and at the same time it is asserted "that the 
 accused should have been acquitted upon the 
 evidence before the court," the contention is 
 considered "as being wholly without merit." 
 Such contentions have been many times urged 
 in criminal cases, and likewise have been many 
 times frowned down upon and discouraged by 
 the courts. As stated by the supreme court of 
 Missouri in such a case, with reference to coun- 
 sel representing the accused at his trial, "if he 
 did nothing else he seems to have convinced his 
 successor, the present counsel in the case, that 
 upon the facts disclosed he ought to have ob- 
 tained an acquittal." (File 26251--6020:11, 
 July 7, 1913.) 
 
 [ARTICLE VII.] 
 
 [Jury trial in suits at common law.] In suits at common law, where the 
 value in controversy shall exceed twenty dollars, the right of trial by jury shall 
 be preserved, and no fact tried by a jury, shall be otherwise reexamined in 
 any Court of the United States, than according to the rules of the common law. 
 
 133 
 
Eighth Amendment. 
 
 ri. 1. THE CONSTITUTION. 
 
 Punishments. 
 
 [AKTICLE VIII.] 
 
 [Excessive bail or fines and cruel punishments prohibited.] Excessive bail 
 shall not be required, nor excessive fines imposed, nor cruel and unusual punish- 
 ments inflicted. 
 
 Cruel and unusual punishments. — The 
 
 imposition of a hea\ier punislunent for a second 
 offense is not prohibited by tliis article. (Mc- 
 Donald V. Massachusetts, 180 U. S., 311.) 
 
 " runishments are cruel when they inA'olve 
 torture or a lingering death; but the punish- 
 ment of death is not cruel within the meaning 
 of that word as used in the Constitution. It 
 implies something inhuman and barbarous, 
 something more than the mere extinguishment 
 of hfe." (Ex parte Kemmler, 136 U. S., 436. 
 See also Wilkerson v. Utah, 99 U. S., 130, hold- 
 ing that death by shooting is not cruel and un- 
 usual witliin the meaning of this amendment.) 
 
 "Infamous" punishments ■svathin the mean- 
 ing of the fifth amendment "can not be limited 
 to those punishments which are cruel or un- 
 usual; because, by the seventh [eighth] 
 amendment of the Constitution, 'cruel and 
 unusual punishments' are wholly forbidden, 
 and can not therefore be lawfully inflicted even 
 in cases of con\ictions upon indictments duly 
 presented by a grand jury. * * «• WTiat 
 punishments may be considered as infamous 
 may be affected by the changes of public 
 opinion from one age to another. In former 
 times, being put in the stocks was not consid- 
 ered as necessarily infamous. And by the first 
 judiciary act of the United States, whipping 
 was classed with moderate fines and short terms 
 of imprisonment in limiting the criminal jiu-is- 
 diction of the district coiu-ts to cases 'where no 
 other punishment than wliipping, not exceed- 
 ing thirty stripes, a fine not exceeding one hun- 
 dred dollars, or a term of imprisonment not ex- 
 ceeding six months, is to be inflicted.' * * * 
 But at the present day either stocks or whipping 
 might be thought an infamous punishment. 
 For more than a century, imprisonment at hard 
 labor in the State prison or penitentiary or other 
 institution has been considered an infamous 
 punishment in England and America." (Ex 
 parte Wilson, 114 U. S., 417.) 
 
 "In no case shall punishment by flogging, 
 or by branding, marking, or tattooing on the 
 body be adjudged by any court-martial or be in- 
 flicted upon any person in the Navy." (Art. 
 49, A. G. N., sec. 1624, E. S.) 
 
 "The use of irons, single or double^ as a form 
 of punishment in the I'la vy of the Umted States 
 is hereby abolished, except for the purposes of 
 safe cus-tody or when part of the sentence im- 
 posed by a general court-martial." (Act May 
 13, 1908, 35 Stat., 132; see also act Feb. 16, 1909, 
 sec. 8, 35 Stat., 621.) 
 
 "It shall be the duty of a court-martial, in all 
 cases of conviction, to adjudge a punishment 
 adequate to the nature of the offense; but the 
 members thereof may recommend the person 
 con\dcted as deserving of clemency, and state, 
 on the record, their reasons for so doing. ' ' (Art. 
 51, A. G. N.,sec. 1624, R. S.) 
 
 "In interpreting the eighth amendment it 
 will be regarded as a precept of justice that 
 punishment for crime should be graduated and 
 proportioned to the offense. * * * "What 
 constitutes a cruel and unusual punishment 
 prohibited by the eighth amendment has not 
 been exactly defined and no case has heretofore 
 occurred in this court calling for an exhaustive 
 definition. * * * The eighth amendment 
 is progressive and does not prohibit merely the 
 cruel and unusual punishments known in 1689 
 and 1787, but may acqiure wider meaning as 
 public opinion becomes enlightened by humane 
 justice; and a similar provision in the PhiUppine 
 bill of rights applies to long-continued imprison- 
 ment with accessories disproportionate to the 
 offense." (Weems v. U. S., 217 U. S., 349.) 
 
 "In determining whether a punishment is 
 cruel and unusual as fixed by the Pliilippine 
 Commission, tliis court will consider the punish- 
 ment of the same or similar crimes in other parts 
 of the United States, as exhibiting the differ- 
 ence between power unrestrained and that ex- 
 ercised under the spirit of constitutional limita- 
 tions formed to establish justice." (Weems v. 
 U. S., 217 U. S., 349.) 
 
 "Where the minimum sentence wliich the 
 coiu*t might impose is cruel and unusual within 
 the prohibition of a bill of rights, the fault is in 
 the law and not in the sentence, and if there is 
 no other law under which sentence can be im- 
 posed, it is the duty of the court to declare 
 the law void." (Weems v. U. S., 217 U. S., 
 349.) 
 
 [ARTICLE IX.] 
 
 [Rights reserved to the people.] The enumeration in the Constitution, of 
 certain rights, shall not be construed to deny or disparage others retained by 
 the people. 
 
 [ARTICLE X.] 
 
 [Powers reserved to the States.] The powers not delegated to the United 
 States by the Constitution, nor prohibited by it to the States, are reserved to 
 the States respectively, or to the people. 
 
 134 
 
Involuntary Servitude. Ft. 1. THE CONSTITUTION. Thirteenth Amendment. 
 
 ARTICLE XI. 
 
 [limitations upon judicial powers.] The Judicial power of the United 
 States shall not be construed to extend to any suit in law or equity, commenced 
 or prosecuted against one of the United States by Citizens of another State, or 
 by Citizens or Subjects of any Foreign State. 
 
 ARTICLE XII. 
 
 [Election of President and Vice-President.] The Electors shall meet in 
 their respective states and vote by ballot for President and Vice-President, one 
 of whom, at least, shall not be an inhabitant of the same state with themselves; 
 they shall name in their ballots the person voted for as President, and in dis- 
 tinct ballots the person voted for as Vice-President, and they shall make dis- 
 tinct lists of all persons voted for as President, and of all persons voted for as 
 Vice-President, and of the number of votes for each, which lists they shall 
 sign and certify, and transmit sealed to the seat of the government of the 
 United States, directed to the President of the Senate; — The President of the 
 Senate shall, in presence of the Senate and House of Representatives, open all 
 the certificates and the votes shall then be counted ;^The person having the 
 greatest number of votes for President, shall be the President, if such number 
 be a majority of the whole number of Electors appointed; and if no person 
 have such majority, then from the persons having the highest numbers not 
 exceeding three on the list of those voted for as President, the House of Rep- 
 resentatives shall choose immediately, by ballot, the President. But in choos- 
 ing the President, the votes shall be taken by states, the representation from 
 each state having one vote; a quorum for this purpose shall consist of a mem- 
 ber or members from two-thirds of tlie states, and a majority of all the states 
 shall be necessary to a choice. And if the House of Representatives shall not 
 choose a President whenever the right of choice shall devolve upon them, 
 before the fourth day of March next following, then the Vice-President shaU act as 
 President, as in the case of the death or other constitutional disability of the 
 President. — The person having the greatest number of votes as Vice-President, 
 shaU be the Vice-President, if such number be a majority of the whole number 
 of Electors appointed, and if no person have a majority, then from the two 
 highest numbers on the fist, the Senate shall choose the Vice-President; a 
 quorum for the purpose shall consist of two-thirds of the whole number of Sen- 
 ators, and a majority of the whole number shall be necessary to a choice. But 
 no person constitutionally inehgible to the office of President shall be eligible 
 to that of Vice-President of the United States. 
 
 ARTICLE XIII. 
 
 Section 1. [Slavery and involuntary servitude prohibited.] Neither slavery 
 nor involuntary servitude, except as a punishment for crime whereof the party 
 shall have been duly convicted, shall exist within the United States, or any 
 place subject to their jurisdiction. 
 
 135 
 
Fourteenth Amendment. Ft. 1. TEE CONSTITUTION. 
 
 Citizenship. 
 
 Section 2. [Power of Congress.] Congress shall have power to enforce this 
 article by appropriate legislation. 
 
 Involuntary servitude. — "It is clear 
 * * * tliat theauumdiiK'Utwasnotiuteiided 
 to introduce any novel doctrine \vith respect 
 to certain descriptions of ser\dce wliich have 
 always been treated as exceptions — such as 
 military and na^■al enUstments — or to the right 
 of parents and guardians as to their minor 
 children or wards. The amendment, however, 
 makes no distinction between a pubUc and a 
 pri\-ate service. To say that persons engaged 
 in a pubUc serAdce are not Avithin the amend- 
 ment is to admit that tliere are exceptions to 
 its genera] language, and the fiuther question 
 is at once presented. Where shall the liixe be 
 dra\vn? We know of no better answer to make 
 than to say that services which havefrom time 
 immemorial been treated as exceptional shall 
 not be regarded as within its piuview. From 
 the earliest historical period the contract of the 
 sailor has been treated as an exceptional one 
 and involving to a certain extent the siurender 
 of his personal hberty during the life of the con- 
 tract." (Robertson v. Baldwin, 165 U. S., 
 275; see also Butler v. Perry, 240 U. S., 
 328.) 
 
 "Does the epithet 'involuntary' attach to 
 the word 'servitude' continuously, and make 
 illegal any service which becomes involuntary 
 at any tune during its existence; or does it 
 attach only at the inception of the sei-vitude, 
 and characterize it as unlawful because un- 
 lawfully entered into? If the former be the 
 true construction, then no one, not even a 
 soldier, sailor, or apprentice can smrender his 
 liberty even for a day; and the soldier may 
 desert his regiment upon the eve of battle and 
 the sailor abandon his sliip at any intermediate 
 port or landing, or even in a storm at sea, pro- 
 vided only he can find means of escaping to 
 another vessel. If the latter, then an individ- 
 ual may, for a valuable consideration, contract 
 for the surrender of his personal hberty for a 
 definite time and for a recognized purpose, and 
 subordinate his going and coming to the will 
 of another during the continuance of the con- 
 tract. * * * Not that all such contracts 
 would be lawful, but that a service which was 
 knowingly and willfully entered into could 
 not be termed involuntary. Thus if one should 
 agree, for a yearly wage, to serve another in a 
 particular capacity during his hfe, and never 
 to leave liis estate without his consent, the 
 contract might not be enforceable for the want 
 
 of a legal remedy, or might be void upon the 
 grounds of public policy, but the servitude 
 could not be properly termed involuntaiy. 
 Such agreements for a limited personal servi- 
 tude at one time were very common in England, 
 and by statute * * * it was enacted that 
 if any servant in husbandry or any artificer, 
 caUco printer, hands-crafteman, miner, collier, 
 keelman, pitman, glassman, potter, laborer, 
 or other person should contract to serve another 
 for a definite time and should desert such 
 service during the term of the contract he was 
 made Uable to a criminal punishment. The 
 breach of a contract for personal serAice has 
 not, however, been recognized in tliis country 
 as involving a habiUty to criminal punishment 
 except in the cases of soldiers, sailors, and 
 possibly some others, nor would public opinion 
 tolerate a statute to that effect. But we are 
 also of opinion that, even if the contract of a 
 seaman could be considered Avitliin the letter 
 of the thirteenth amendment, it is not, witliin 
 its spirit, a case of involuntarv ser\dtude." 
 (Robertson v. Baldwin, 165 U. S.", 275.) 
 
 The Supreme Court is unable to conceive 
 upon what theory the exaction by government 
 from the citizen of the performance of his 
 supreme and noble duty of contributing to the 
 defense of the rights and honor of the nation, as 
 the result of a war declared by the great repre- 
 sentative body of the people can be said to be 
 the imposition of involuntary servitude in 
 violation of the proMbitions of the Thirteenth 
 Amendment, and is constrained to the con- 
 clusion that the contention to that effect is 
 refuted by its mere statement. (Selection 
 Draft Law Cases, 245 U. S., 366.) 
 
 A person in the miUtary or naval service, 
 whether an officer or a private, is always more 
 or less subject in his movements, by the very 
 necessity of miUtary rule and subordination, 
 to the orders of his superior officer; and unless 
 it is clear that some unusual restraint upon his 
 liberty of personal movement exists he can not 
 claim that he is unlawfully deprived of his 
 hberty; "otherwise every order of the superior 
 officer directing the movements of his subor- 
 dinate, which necessarily to some extent cur- 
 tails his freedom of will, may be held to be a 
 restraint of his liberty, and the party so ordered 
 may seek reUef from obedience by means of a 
 writ of habeas corpus." (Wales v, Whitney, 
 114 U. S., 564.) 
 
 ARTICLE XIV. 
 
 Section 1. [Citizenship; privileges and immunities of citizens.] All persons 
 bom or naturaUzed in the United States, and subject to the jurisdiction thereof, 
 are citizens of the United States and of the State wherein they reside. No 
 State shall make or enforce any law which shall abridge the privileges or immuni- 
 ties of citizens of the United States; nor shall any State deprive any person 
 
 136 
 
Citizenship. 
 
 PL 1. THE CONSTITUTION. 
 
 Fourteenth Amendment. 
 
 of life, liberty, or property, without due process of law ; nor deny to any person 
 within its jurisdiction the equal protection of the laws. 
 
 Citizenship. — "There can not be a nation 
 without a people. The very idea of a poUtical 
 community, such as a nation is, impUes an 
 association of persons for the promotion of 
 their general welfare. Each one of the persons 
 associated becomes a member of the nation 
 formed by the association. He owes it alle- 
 giance and is entitled to its protection. Alle- 
 giance and protection are in this connection 
 reciprocal obligations. The one is a compen- 
 sation for the other; allegiance for protection 
 and protection for allegiance. For conven- 
 ience it has been found necessary to give a 
 name to this membership. The object is to 
 designate by a title the person and the rela- 
 tion he bears to the nation. For this purpose 
 the words 'subject,' 'inhabitant,' and 'citizen' 
 have been used, and the choice between them 
 is sometimes made to depend upon the form 
 of the government. Citizen is now more 
 commonly employed, however, and as it has 
 been considered better suited to the descrip- 
 tion of one living under a republican govern- 
 ment, it was adopted by nearly all of the 
 States upon their separation from Great Britain 
 and was afterwards adopted in the Articles of 
 Confederation and in the Constitution of the 
 United States. When used in this sense, it 
 is understood as conveying the idea of member- 
 ship of a nation and nothing more." (Minor 
 V. Happersett, 21 Wall., 162.) 
 
 "As appears upon the face of the amend- 
 ment as well as from the history of the times, 
 this was not intended to impose any new 
 restrictions upon citizenship or to prevent 
 any persons from becoming citizens by the 
 fact of birth within the United States, who 
 would thereby have become citizens accord- 
 ing to the law existing before its adoption. 
 It is declaratory in form and enabling and 
 extending in effect. Its main purpose doubt- 
 less was, as has been often recognized by this 
 court to establish the citizenship of free negroes, 
 which had been denied in the opinion deUv- 
 ered by Chief Justice Taney in Dred Scott v. 
 Sandford, 1857, and to put it beyond doubt 
 that all blacks, as well as whites, born or 
 naturalized within the jurisdiction of the 
 United States, are citizens of the United States. 
 * * * But the opening words, 'All per- 
 sons bom,' are general, not to say universal, 
 restricted only by place and jurisdiction and 
 not by color or race, as was clearly recognized 
 in all the opinions delivered in the Slaughter 
 House Cases above cited [16 Wall., 36]. " (U. S. 
 V. Wong Kim Ark, 169 U. S., 649.) 
 
 This amendment "declares that persons may 
 be citizens of the United States without regard 
 to the citizenship of a particular State * * * 
 the distinction between citizenship of the 
 United States and citizenship of a State is 
 clearly recognized and established. Not only 
 may a man be a citizen of the United States 
 without being a citizen of a State, but an 
 important element is necessary to convert the 
 former into the latter. He must reside within 
 the State to make him a citizen of it, but it is 
 
 only necessary that he should be born or 
 naturalized in the United States to be a citi- 
 zen of the Union. It is quite clear then that 
 there is a citizenship of the United States 
 and a citizenship of a State, which are distinct 
 from each other and which depend upon differ- 
 ent characteristics or circumstances in the 
 individual." (Slaughter House Cases, 16 
 Wall., 36.) 
 
 Subject to jurisdiction thereof. — "The 
 real object of the fourteenth amendment of 
 the Constitution in qualifying the words, 'all 
 persons born in the United States,' by the 
 addition, 'and subject to the jurisdiction 
 thereof,' would appear to have been to exclude 
 by thefewest and fittest words (besides children 
 of members of the Indian tribes standing in 
 peculiar relation to the National Government, 
 unknown to the common law), the two classes 
 of cases — children born of alien enemies in 
 hostile occupation and children of diplomatic 
 representatives of a foreign State — both of 
 which, as has already been shown by the law 
 of England and by our own law from the time 
 of the first settlement of the Enghsh colonies 
 in America, had been recognized exceptions to 
 the fundamental rule of citizenship by birth 
 within the country." (U. S. v. Wong Kim 
 Ark, 169 U. S., 649, modifying as incorrect a 
 remark in Slaughter House Cases, 16 Wall., 36, 
 that "the phrase, 'subject to its jurisdiction,' 
 was intended to exclude from its operation 
 children of ministers, consuls, and citizens or 
 subjects of foreign States born within the 
 United States.") 
 
 Indians. — "Indians bom within the terri- 
 torial limits of the United States, members of 
 and owing immediate allegiance to one of the 
 Indian tribes (an alien though dependent 
 power), although in a geographical sense 
 born in the United States, are no more 'born 
 in the United States and subject to the juris- 
 diction thereof within the meaning of the 
 first section of the fourteenth amendment, 
 than the children of subjects of any foreign 
 government born within the domain of that 
 government, or the children born within the 
 United States of ambassadors or other public 
 ministers of foreign nations. * * * Such 
 Indians, then, not being citizens by birth, 
 can only become citizens in the second way 
 mentioned in the fourteenth amendment, 
 by being naturalized in the United States, 
 bv or under some treaty or statute." (Elk v. 
 Wilkins, 112 U. S., 94; file 9212-48, Aug. 3, 
 1914; see also, as to status of Indians, U. S. v. 
 Hadley, 99 Fed. Rep., 437; U. S. v. Elm, 25 
 Fed. Cas. No. 15048; Matter of Heff, 197 U. S., 
 504; 7 Op. Atty. Gen., 746; McKay v. Camp- 
 bell, 16 Fed. Cas. No. 8840; U. S. v. Wong 
 Kim Ark, 169 U. S., 680.) 
 
 Special pro\dsion has been made for the 
 naturalization of Indians by various acts of 
 Congress. Thiis by act of Febmary 8, 1887 
 (24 Stat., 390), after providing for the allotment 
 of lands in Indian reservations to any Indian 
 located thereon, it was provided by section 6, 
 
 137 
 
Fourteenth Amendment. Ft. 1. THE CONSTITUTION. 
 
 Citizenship. 
 
 as amended l)y act of March 3, 1901 (31 Stat., 
 1447): "That upon the completion of said 
 allotmcnta and the patenting of the lands to 
 said allottees, each and even' membei' of the 
 respective bands or tribes of "Indians to whom 
 allotments have been ma<le shall have the 
 benefit of and be subject to the laws, both 
 ciAnl and criminal, of the State or Territory in 
 which they may reside; and no Territoiy sliall 
 pass or enforce any law denying any such 
 Indian within its jurisdiction the equal pro- 
 tection of the law. And even,' Indian born 
 within the territorial limits of the United 
 States to whom allotments shall have been 
 made under the provisions of this act, or under 
 any law or treaty, and everi' Indian born 
 within the territorial limits of the United 
 States who has voluntarily taken up, within 
 said limits, his residence separate and apart 
 from any tribe of Indians therein, and has 
 adopted the habits of civilized life, and every 
 Indian in Indian Territory is hereby declared 
 to be a citizen of the United States, and is 
 entitled to all the rights, pri\'ileges, and 
 immunities of such citizens, whether said 
 Indian has been or not, by birth or otherwise, a 
 member of any tribe of Indians within the terri- 
 torial limits of the United States, without in 
 any manner impairing or otherwise affecting 
 the right of any such Indian to tribal or other 
 property." [The words in italics were added 
 by the amendatory act above cited. The 
 original act provided (section 8) that its pro- 
 visions should not extend to certain tribes of 
 Indiana in the Indian Territory, "nor to any 
 of the reservations of the Seneca Nation of 
 New York Indians in the State of New York, 
 nor to that strip of territory in the State 
 of Nebraska adjoining the Sioux Nation on the 
 south added by Executive order."] 
 
 By act of May 8, 1906 (34 Stat., 182), section 
 6 of the act of 1887, above quoted, was amended 
 to read as follows: "That at the expiration of 
 the trust period and when the lands have 
 been conveyed to the Indians by patent in 
 fee, as provided in section 5 of this act, then 
 each and every allottee shall have the benefit 
 of and be subject to the laws, both civil and 
 criminal, of the State or Territory in which 
 they may reside; and no Territory shall pass 
 or enforce any law denying any such Indian 
 within its jurisdiction the equal protection of 
 the law. And every Indian born within the 
 territorial limits of the United States to whom 
 allotments shall have been made and who 
 has received a patent in fee simple under the 
 provisions of this act, or under any law or 
 treaty, and every Indian bom within the 
 territorial limits of the United States who has 
 voluntarily taken up within said limits his 
 residence separate and apart from any tribe 
 of Indians therein, and has adopted the habits 
 of civilized life, is hereby declared to be a 
 citizen of the United States, and is entitled to 
 all the rights, privileges, and immunities of 
 such citizens, whether said Indian has been 
 or not, by birth or otherwise, a member of 
 any tribe of Indians within the territorial 
 limits of the United States without in any 
 manner impairing or otherwise affecting the 
 right of any such Indian to tribal or other 
 
 property: Provided, That the Secretary of 
 the Interior may, in his discretion, and he is 
 hereby authorized, whenever he shall be 
 satisfied that any Indian allottee is competent 
 and capable of managing his or her affairs at 
 any time to cause to be issued to such allottee 
 a patent in fee simple, and thereafter all 
 restrictions as to sale, incumbrance, or taxa- 
 tion of said land shall be removed and said 
 land shall not be liable to the satisfaction of 
 any debt contracted prior to the issuing of 
 such patent: Provided further, That until the 
 issuance of fee-simple patents all allottees to 
 whom trust patents shall hereafter be issued 
 shall be subjected to the exclusive jurisdiction 
 of the United States: And provided further, 
 That the provisions of this act shall not extend 
 to any Indians in the Indian Territory." 
 
 By section 1992, Revised Statutes, it was pro- 
 vided that, "All persons born in the United 
 States and not subject to any foreign power, 
 excluding Indians not taxed, are declared to be 
 citizens of the United States." 
 
 An Indian born in Indian Territory, and who 
 had resided in Oklahoma after its admission 
 as a State, was held to be a citizen of the United 
 States by virtue of the above statutes, and ac- 
 cordingly ehgible, if otherwise quahlied, for 
 appointment as an assistant surgeon in the 
 Medical Reserve Corps of the Navy. (File 
 26252-99, May, 1915. In this case the Secre- 
 tary of the Interior reported: " Inasmuch as all 
 allotments to members of the Cherokee Tribe 
 have been completed and the Cherokee citizen- 
 ship rolls have been closed as of March 4, 1907, 
 it appears that * * * is now a citizen of 
 the United States and of the State of Oklahoma, 
 and is entitled to all the rights, privileges and 
 immunities of such citizens, as prescribed by 
 section 6 of the act of Congress approved Feb- 
 ruary 8, 1887 (24 Stat., 390), as amended by the 
 act of Congress approved March 3, 1901 (31 Stat., 
 1447).") _ 
 
 An Indian who belonged to the Seneca Nation 
 in the State of New York is prima facie not a 
 citizen of the United States, and should be re- 
 quired to estabUsh his citizenship by satisfac- 
 tory evidence when he applies for enlistment 
 in "the Navy. Suggested, however, as there is 
 no law making citizenship a condition prece- 
 dent to enlistment, the Navy Department is 
 authorized to enUst such Indians, regardless of 
 citizenship, if considered desirable, this being 
 a matter of departmental regulation. (File 
 9212-48, Aug. 3, 1914, citing, as to status of New 
 York Indians, Hatch v. Luckman, 118 N. Y. S. 
 694, affirmed, 140 N. Y. S., 1123, holding that 
 "the Indians of this State do not possess the 
 rights of citizenship and are regarded as wards 
 of the State"; compare 18 Op. Atty. Gen., 181.) 
 
 Chinese. — A person of the Chinese race, 
 born in the United States of aUen parents, sub- 
 ject to the jurisdiction of this country, is a citi- 
 zen of United States by birth without regard to 
 whether or not the laws permit the naturaUza- 
 tion of persons of his race. "The fourteenth 
 amendment, while it leaves the power where it 
 was before, in Congress, to regulate naturaliza- 
 tion, has conferred no authority upon Congress 
 to restrict the effect of birth, declared by the 
 Constitution to constitute a sirfficient and com- 
 
 138 
 
Citizenship. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Fourteenth Amendment. 
 
 plete right to citizenship. No one doubts that 
 the amendmejit, as soon as it wai- promulgated, 
 appUed to persons of African descent born in 
 the United States, wherever the birthplace of 
 their parents might have been; and yet, for two 
 years af terwiwds, there was no statute authorizhig 
 persons of that race to be natiu'aUzed. If the 
 omission or the refusal of Congress to permit 
 certain classes of persons to be made citizens by 
 naturalization could be allowed the effect of 
 correspondingly restiictiug the classes of per- 
 sons who should become citizens by birth, it 
 would be in the power of Congress at any time, 
 by striking negroes out of the naturalization 
 laws, and limiting those laws, as they were 
 foimerly Umited, to white persons only, to 
 defeat the main purpose of the constitutional 
 amendment." (U. S. v. Wong Kim Ark, 169 
 U. S.,_649.)_ 
 
 "This claim of American citizenship by a 
 person of Chinese descent is one wliich can be 
 easily fabricated, and wliich if fabricated is 
 very difficult to be disproved by the Govern- 
 ment. On the other hand, if it is true there are 
 generally no witnesses who can prove it except 
 Chinese witnesses. It is easy to decide such 
 cases on the theory that all such claims are 
 false. Probably many of them are false, but 
 some of them must be true, for there must be a 
 considerable number of persons of Chinese 
 descent born here since Chinese immigration 
 into this country began." (U. S. v. Len Jin, 
 192 Fed. Rep., 580; file 26252-68, June 19, 1912; 
 file 26252-100, June 1, 1915.) 
 
 "In matters of this kind it is the duty of 
 claimants to submit the best possible evidence. 
 As there is no record evidence, the next best 
 must be considered instead. That should 
 contain the affidavit of the claimant, setting 
 forth all he knows of his early Ufe; where he 
 lives, what he did before enhsting in the Navy; 
 all about his parents, if he knows anything 
 about them; when they came to this country; 
 what business, if any, his father engaged in, 
 particularly whether or not he was employed 
 in any diplomatic or official capacity under 
 the Emperor; when his parents left, and 
 where they are at the present time; whether 
 he himself has been out of the country, and if 
 so, when and Avhere, and how long a time he 
 remained away. In other words, a detailed 
 statement of facts tending to support liis claim 
 which may be the subject of an independent 
 investigation as to their truth." (Comp. Dec, 
 May 27, 1914, file 26252-84; see also, file 26252- 
 100, June 1, 1915.) 
 
 It is the practice of the Navy Department, in 
 cases of this character, after consideration of 
 affidavits submitted by claimants, to refer the 
 papers to the Department of Labor with request 
 for a statement of such pertinent facts as it 
 might be able to furnish. Then when papers 
 are returned, with additional information, it is 
 usually possible to determine whether the evi- 
 dence is sufficient to establish citizenship. 
 (File 26252-100, June 1, 1915.) 
 
 Japanese. — An alien born abroad of Japa- 
 nese parents is not eligible to become a natur- 
 alized citizen of the United States; and where a 
 certificate of naturalization was issued such 
 alien by a court of competent jurisdiction, 
 
 such certificate ia null and void and does 
 not entitle him to the benefits of citizenship. 
 (File 26252, Apr. 9, 1908, 85 S.and A. Memo., 
 622.) 
 
 The son of a German father and a Japanese 
 mother is not a "white person" within the 
 meaning of section 2169, Revised Stp.tutes, and 
 therefore is not eligible to naturalization. (In re 
 Young, 198 Fed. Rep., 714.) 
 
 For other cases, see below, ' ' Persona who 
 serve in the Navy or Marine Corps." 
 
 Children born on foreign vessel, although 
 witliin the waters of the United States, are con- 
 sidered as born in the country to which the ves- 
 sel belongs, and not witliin the jurisdiction of 
 the United States. Accordingly, they are not 
 citizens of this country by birth. (In re Look 
 Tin Sing, 21 Fed. Rep., 906.) 
 
 Citizenship in insular possessions. — See 
 note to Article IV, section 3, clause 2. 
 
 Children born abroad of citizen parents 
 "are declared to be citizens of the United 
 States; but the rights of citizenship shall not 
 descend to children whose fathers never re- 
 sided in the United States." (Sec. 1993, R. S.) 
 In order for such childi-en to receive the protec- 
 tion of the Government, if they continue to re- 
 side outside the United States, they are "re- 
 quired, upon reaching the age of 18 years, to 
 record at an American consulate their intention 
 to become residents and remain citizens of the 
 United States, ' ' and ' ' to take the oath of alle- 
 giance to the United States upon attaining their 
 majority." (Act Mar. 2, 1907, sec. 6, 34 Stat., 
 1229.) 
 
 Children bom abroad of aUen parents 
 shall be deemed citizens of the United States 
 by virtue of the naturalization of or resumption 
 of American citizenslup by the parent; pro- 
 vided such naturalization or resumption takes 
 place during the minority of such children. 
 The citizensliip of such children shall begin at 
 the time such children begin to reside perma- 
 nently in the United States. (Act Mar. 2, 1907, 
 sec. 5, 34 Stat., 1229.) 
 
 Alien adopted by American parents. — • 
 See file 3194-1, October 17, 1906, recommending 
 that rule forbidding the employment of aliens 
 at navy yards be suspended in this case, with- 
 out deciding question of citizenship. 
 
 Stepchildren bom of foreign parents. — 
 Should a minor's stepfather become naturalized 
 during the lifetime of said minor's mother, the 
 mother would become a citizen as the result of 
 her hu.sband'a naturalization, and being a citi- 
 zen, her son would also become a citizen. But 
 naturalization of the stepfather after the death 
 of the mother could not have the effect to make 
 the minor child a citizen. (Comp. Dec, June 
 16, 1913, 148 S. and A. Memo. 2656; U. S. v. 
 Rodgers, 144 Fed. Rep., 711; U. S. v. Keller, 
 13 Fed. Rep., 82.) 
 
 A minor son is not made a citizen by virtue of 
 the fact that his stepfather took out his first 
 citizenship paper prior to his death. (Comp. 
 Dec, June 26, 1913, 148 S. and A. Memo., 2674.) 
 
 Any woman who marries a citizen of the 
 United States, and who mi^ht herself be law- 
 fully naturalized, ia deemed a citizen. (Sec. 
 1994, R. S.) In such cases the woman shall 
 be assumed to retain her American citizenship 
 
 54641°— 22- 
 
 -10 
 
 139 
 
Fourteenth Amendment. Ft. 1. THE CONSTITUTION. 
 
 Citizenship. 
 
 after the termination of the marital relation if 
 ehe continues to reside in the United States, un- 
 less she makes formal renunciation thereof 
 before a court havinj]; jurisdiction to naturalize 
 aliens, or if she resides abroad she may retain 
 her citizenship by registering as such before a 
 United States consul within one year after the 
 termination of such marital relation. (Act 
 Mar. 2, 1907, sec. 4, 34 Stat., 1229.) 
 
 Persons who serve in the Navy or Marine 
 Corps, or Coast Guard, or on board of any ves- 
 sel of the United States Government, maybe 
 naturalized under special provisions contained 
 in the act of May 9, 1918 (40 Stat., 542), amend- 
 ing the general naturalization act of June 29, 
 1906 (34 Stat., 596). Special pro^^sions as to 
 aliens serving \nth Naval Reserve Force are 
 contained in act of May 22, 1917 (40 Stat., 84). 
 
 The law providing specifically for natiu-aliza- 
 tion of persons who have served as enUsted men 
 of the Navy or ]\Iarine Corps does not extend the 
 right of natimiUzation to persons who are ex- 
 cluded by section 21 69, Revised Statutes, which 
 is hmited to "free white persons and to aliens of 
 African nati-\dty and to persons of African de- 
 scent." That section of the Revised Statutes 
 has not been repealed by subsequent naturaU- 
 zation laws, but is still iii effect. Accordingly, 
 "a citizen of the Pliilippine Islands who ethno- 
 logically was one-fourth white and three- 
 fourthsbrown or Malay could not l^e natural- 
 ized," notvvithstanding his ser\'ice in the 
 Navy. (In re Alverto, 198 Fed. Rep., 688; see, 
 also,' In re Buntaro Kumagai, 163 Fed. Rep., 
 922, and Bessho v. U. S., 178 Fed. Rep., 245, 
 as to naturalization of Japanese; but see con- 
 tra, as to Filipinos, 27 Op. Atty. Gen., 12; In 
 re }»Ionico Lopez, C. M. O. 49, 1915, p. 23, and 
 In re Engracio Bawtista, C. M. O. 72, 1917, p. 
 16. The act of May 9, 1918 (40 Stat., 542), spe- 
 cifically provides for naturalization of Filipinos 
 who serve in the Navy, Marine Corps, or Naval 
 Auxiliary Service. 
 
 For general naturalization law, see acts 
 of June 29, 1906 (34 Stat., 596), and May 9, 
 1918 (40 Stat., 542). 
 
 Forfeiture of citizenship. — "The power of 
 naturalization vested in Congress by the Consti- 
 tution, is a power to confer citizenship, not a 
 power to take it away. 'A naturalized citizen,' 
 said Chief Justice Marshall, 'becomes a member 
 of the society, possessing all the rights of a native 
 citizen, and standing, in the view of the Consti- 
 tution, on the footing of a native. The Consti- 
 tution does not authorize Congress to enlarge or 
 abridge those rights. The simple power of the 
 national legislature is to prescribe a uniform 
 rule of naturalization, and the exercise of this 
 power exhausts it, so far as respects the individ- 
 ual * * *.' Congress having no power to 
 abridge the rights conferred by the Constitution 
 upon those who have become naturalized citi- 
 zens by virtue of acta of Congress, a fortiori [for 
 stronger reasons], no act or omission of Congress 
 * * * can affect citizenship acquired as a 
 birthright, by virtue of the Constitution itself, 
 without any aid of legislation." (U. S. v. 
 Wong Kim Ark, 169 U. S., 649.) 
 
 Persons who desert from the military or naval 
 service in time of war are deemed to have vol- 
 
 untarily relinquished and forfeited their rights 
 of citizenship, as well as their right to become 
 citizens; and such deserters shall be forever in- 
 capable of exercising any rights of citizenship. 
 The same penalties apply to persons who leave 
 the jurisdiction with intent to avoid the draft. 
 (Sees. 1996 and 1998, R. S., as amended by act 
 Aug. 22, 1912, 37 Stat., 356. As to constitution- 
 ality of this enactment, see cases noted under 
 Art. I, sec. 9, clause 3.) 
 
 Cancellation of certificate. — ^Mien a natu- 
 ralized alien takes up permanent residence in 
 any foreign country within five years after his 
 naturalization, in the absence of countervailing 
 evidence, it shall be deemed that it was not his 
 intention to become a permanent citizen of the 
 United States, and his certificate of citizenship 
 mav be canceled as fraudulent. (Act June 29, 
 
 1906, sec. 15, 34 Stat., 601.) 
 Expatriation. — The right of expatriation is 
 
 expressly recognized by section 1999, Revised 
 Statutes. But "no American citizen shall be 
 allowed to expatriate himself when this coun- 
 try is at war." (Act Mar. 2, 1907, sec. 2, 34 
 Stat., 1228; file 26252-105, Aug. 30, 1916.) 
 
 "Any American citizen shall be deemed to 
 have expatriated himself when he has been 
 naturalized in any foreign state in conformity 
 with its laws, or when he has taken an oath of 
 allegiance to anv foreign state." (Act Mar. 2, 
 
 1907, sec. 2, 34 Stat., 1228.) 
 
 "\Mien any naturaUzed citizen shall have 
 resided for two years in the foreign state from 
 wliich he came, or for five years in any other 
 foreign state, it shall be presumed that he has 
 ceased to be an American citizen, and the place 
 of his general abode shall be deemed his place 
 of residence during said years: Provided, how- 
 ever, That such presumption may be overcome 
 on the presentation of satisfactory evidence to a 
 diplomatic or consulai* officer of the United 
 States, under such rules and regulations as the 
 Department of State mav prescribe." (Act 
 Mar. 2, 1907, sec. 2, 34 Stat., 1228.) 
 
 "Any American woman who marries a 
 foreigner shall take the nationaUty of her 
 husband. At the termination of the marital 
 relation she may resume her American citizen- 
 ship, if abroad, by registering as an American 
 citizen within one year with a consul of the 
 United States, or by returning to reside in the 
 United States, or, if residing in the United 
 States at the termination of the marital rela- 
 tion, by continuing to reside therein." (Act 
 Mar. 2, 1907, sec. 3, 34 Stat., 1228.) 
 
 Repatriation of citizens who were deemed 
 to have expatriated themselves by service in 
 foreign armies engaged in war with a country 
 with which the United States was also at war, 
 was provided for by act of October 5, 1917 (40 
 Stat., 340). 
 
 Right to vote not right of citizenship. — 
 "Certainly, if the courts can consider any ques- 
 tion as settled, this is one. For nearly ninety 
 years the people have acted upon the idea that 
 the Constitution, when it conferred citizenship, 
 did not necessarily confer the right of suffrage." 
 (Minor v. Happersett, 21 "Wall., 162. See also 
 U. S. v. Reese, 92 U. S., 214.) 
 
 "Sex has never been made one of the elements 
 of citizenship in the United States. In this 
 
 140 
 
Suffrage. Pt. 1. THE CONSTITUTION. Fifteenth Amendment. 
 
 respect men have never had an advantage over 
 women. The same laws precisely apply to 
 both. The fourteenth amendment did not 
 affect the citizenship of women any more than 
 it did of men. In this particular, therefore, the 
 rights of Mrs. Minor do not depend upon the 
 amendment. She has always been a citizen 
 from her birth and entitled to all the privileges 
 and immunities of citizenship. The amend- 
 ment proliibited the State, of which she is a 
 citizen, from abridging any of her privileges and 
 immunities as a citizen of the United States; 
 but it did not confer citizenship on her. That 
 she had before its adoption. * * * The 
 amendment did not add to the privileges and 
 
 immunities of a citizen. It simply furnished 
 an additional guaranty for the protection of 
 such as he already had. No new voters were 
 necessarily made by it. Indirectly it may have 
 had that effect, because it may have increased 
 the number of citizens entitled to suffrage under 
 the constitution and laws of the States, but it 
 operates for this purpose, if at all, through the 
 States and the State laws, and not directly upon 
 the citizen. It is clear, therefore, we think, 
 that the Constitution has not added the right 
 of suffrage to the privileges and immunities of 
 citizenship as they existed at the time it was 
 adopted." (Minor v. Happersett, 21 Wall., 
 162.) 
 
 Section 2. [Apportionment of Representation.] Representatives shall be 
 apportioned among the several States according to their respective numbers, 
 counting the whole number of persons in each State, excluding IncUans not 
 taxed. But when the right to vote at any election for the choice of electors 
 for President and Vice-President of the United States, Representatives in 
 Congress, the Executive and JucUcial officers of a State, or the members of the 
 Legislature thereof, is denied to any of the male inhabitants of such State, 
 being twenty-one years of age, and citizens of the United States, or in any way 
 abridged, except for participation in rebellion, or other crime, the basis of 
 representation therein shall be reduced in the proportion wliich the number of 
 such male citizens shall bear to the whole number of male citizens twenty-one 
 years of age in such State. 
 
 Section 3. [Disabilities resulting from disloyalty of officers.] No person 
 shall be a Senator or Representative in Congress, or elector of President and 
 Vice-President, or hold any office, civil or military, under the United States, or 
 imder any State, who, having previously taken an oath, as a member of Congress, 
 or as an officer of the United States, or as a member of any State legislature, or 
 as an executive or judicial officer of any State, to support the Constitution of 
 the United States, shall have engaged in insurrection or rebellion against the 
 same, or given aid or comfort to the enemies thereof. But Congress may by a 
 vote of two-thirds of each House, remove such disability. 
 
 Section 4. [Validity of the public debt, etc.] The validity of the public 
 debt of the United States, authorized by law, including debts incurred for pay- 
 ment of pensions and bounties for services in suppressing insurrection or 
 rebellion, shall not be questioned. But neither the United States nor any 
 State shall assume or pay any debt or obligation incurred in aid of insurrection 
 or rebellion against the United States, or any claim for the loss or emancipation 
 of any slave; but all such debts, obligations and claims shall be held illegal 
 and void. 
 
 Section 5. [Power of Congress.] The Congress shall have power to enforce, 
 by appropriate legislation, the provisions of tliis article. 
 
 ARTICLE XV. 
 
 Section 1. [Suffrage not to be abridged for race, color, etc.] The right of 
 citizens of the United States to vote shall not be denied or abridged by the United 
 States or by any State on account of race, color, or previous condition of 
 servitude — 
 
 141 
 
Nineteenth Amendment. Pt. 1. THE CONSTITUTION. Woman Suffrage. 
 
 Section 2. [Power of Congress.] The Congress shall have power to enforce 
 this article by appropriate legislation. 
 
 ARTICLE XVI. 
 
 [Income taxes.] The Congress shall liave power to lay and collect taxes on 
 incomes, from whatever som-ce derived, without apportionment among the 
 several States, and without regard to any census or enumeration. 
 
 ARTICLE XVII. 
 
 [Clause 1. Election of Senators.] The Senate of the United States shall be 
 composed of two Senators from each State, elected by the people thereof, for 
 six vears; and each Senator shall have one vote. The electors in, each State 
 shall have the qualifications requisite for electors of the most numerous branch 
 of the State legislatures. 
 
 [Clause 2. Vacancies in Senate, how filled.] - Wlien vacancies happen in 
 the representation of any State in the Senate, the executive authority of such 
 State shall issue wiits of election to fiU such vacancies: Provided, That the 
 legislature of any State may empower the executive thereof to make temporary 
 appointment until the people fill the vacancies by election as the legislature 
 may direct. 
 
 [Clause 3. Amendment not retroactive.] ^ This amendment shall not be so 
 construed as to affect the election or term of any Senator chosen before it 
 becomes valid as part of the Constitution. 
 
 ARTICLE XVIII. 
 
 Section 1 . [Prohibition of intoxicating liquors for beverage purposes.] After 
 one year from the ratification of this article the manufacture, sale, or trans- 
 portation of intoxicating liquors within, the importation thereof into, or the 
 exportation tliereof from the United States and all territory subject to the 
 jurisdiction thereof for beverage purposes is hereby prohibited. 
 
 Section 2. [Power of Congress and States.] The Congress and the several 
 States shall have concurrent power to enforce this article by appropriate 
 legislation. 
 
 Section 3. [Eatification required within seven years.] This article shall be 
 inoperative unless it shall have been ratified as an amendment to the Consti- 
 tution by the legislatures of the several States, as provided in the Constitution 
 within seven years from the date of the submission hereof to the States by 
 the Congress. 
 
 ARTICLE XIX. 
 
 Section 1. [Woman suffrage.] The right of citizens of the United States 
 
 to vote shall not be denied or abridged by the United States or by any State 
 on account of sex. 
 
 Section 2. [Power of Congress.] Congress shall have power to enforce this 
 article by appropriate legislation. 
 
 142 
 
ANALYTICAL INDEX TO THE 
 
 CONSTITUTION OF THE UNITED STATES 
 
 AND THE AMENDMENTS THERETO. 
 
 (Reprinted from Revised Statutes of the United States, second edition, and Senate Document No. 12, Sixty-third Con. 
 gress, first session, with necessary additions to include eighteenth and nineteenth amendments.] 
 
 A. 
 
 Arti- Sec- Clause, 
 cle. tion. 
 
 ABRIDGED. The privileges or immunities of citizens of the United States 
 
 shall not be. [Amendments] 14 
 
 ABSENT ME]\IBERS, in such manner and under such penalties as it may 
 
 pro\dde. Each House is authorized to compel the attendance of 1 
 
 ACCOUNTS of receipts and expenditures of public money shall be published from 
 
 time to time. A statement of the 1 
 
 ACCUSATION. In all criminal prosecutions the accused shall be informed of 
 
 the cause and nature of the. [Amendments] 6 
 
 ACCUSED shall have a speedy public trial. In all criminal prosecutions the. 
 
 [Amendments] 6 
 
 He shall be tried by an impartial jury of the State and district where the 
 
 crime was committed . [Amendments] 6 
 
 He shall be informed of the nature of the accusation. [Amendments] 6 
 
 He shall be confronted with the witnesses against him. [Amendments] 6 
 
 He shall have compulsory process for obtaining witnesses in his favor. 
 
 [Amendments] 6 
 
 He shall have the assistance of counsel for his defense. [Amendments] 6 
 
 ACTIONS at common law involving over twenty dollars shall be tried by jury. 
 
 [Amendments] 7 
 
 ACTS, records, and judicial proceedings of another State. Full faith and credit 
 
 shall be given in each State to the 4 
 
 ACTS. Congress shall prescribe the manner of proving such acts, records, and 
 
 proceedings 4 
 
 ADJOURN from day to day. A smaller number than a quorum of each House 
 
 may 1 
 
 ADJOURN for more than three days, nor to any other place than that in which 
 they shall be sitting. Neither House shall, during the session of Con- 
 gress, without the consent of the other 1 
 
 ADJOURNMENT, the President may adjourn them to such time as he shall think 
 
 proper. In case of disagreement between the two Houses as to 2 
 
 ADMIRALTY and maritime jurisdiction. The judicial power shall extend to 
 
 all cases of 3 
 
 ADMITTED by the Congress into this Union, but no new State shall be formed 
 
 or erected within the jurisdiction of any other State. New States may be. . 4 
 Nor shall any State be formed by the junction of two or more States, or parts 
 of States, Avithout the consent of the legislatures and of Congress 4 
 
 ADOPTION of the Constitution shall be valid. All debts and engagements con- 
 tracted by the Confederation and before the 6 
 
 143 
 
Analytical Index. 
 
 Pt. 1. THE CONSTITUTION. 
 
 Arti- Sec- p,an<!fi 
 cle. tion. Clause. 
 
 3 
 
 1 
 
 2 
 3 
 
 5 
 
 5 
 
 5 
 
 5 
 
 5 
 
 3 
 4 
 5 
 1 
 
 2 
 2 
 
 2 
 3 
 1 
 
 2 
 3 
 
 10 
 
 3 
 
 10 
 
 2 
 2 
 
 ADVICE and consent of the Senate. The President shall have power to make 
 
 treaties by and with the 2 
 
 To appoint ambassadors or other public ministers and consuls by and with 
 
 the 2 
 
 To appoint all other oflicers of the United States not herein otherwise pro- 
 vided for by and with the 2 
 
 AFFIRMATION. Senators sitting to try impeachments shall be on oath or 1 
 
 To be taken by the President of the United States. Form of the oath or. . . 2 
 No warrants shall be issued but upon probable cause and on oath or. 
 
 [Amendments] 4 
 
 To support the Constitution. Senators and Representatives, members of 
 State legislatures, executive and judicial officers, both State and Federal, 
 
 shall be bound by oath or 6 
 
 AGE. No person shall be a Representative who shall not have attained twenty- 
 five years of 1 
 
 No person shall be a Senator who shall not have attained thirty years of 1 
 
 AGREEMENT or compact with another State without the consent of Congress. 
 
 No State shall enter into any 1 
 
 AID AND COMFORT. Treason against the United States shall consist in 
 
 lowing war against them, adhering to their enemies, and giving them 
 
 ALLIANCE or confederation. No State shall enter into any treaty of 
 
 AMBASSADORS, or other public ministers and consuls. The President may 
 
 appoint 
 
 The judicial power of the United States shall extend to all cases affecting. . 
 AMENDMENTS TO THE CONSTITUTION. Whenever two-thirds of both 
 
 Houses shall deem it necessary. Congress shaU propose 
 
 On application of the legislatures of two-thirds of the States, Congress shaU 
 
 call a convention to propose 
 
 Shall be valid when ratified by the legislatures of, or by conventions in, 
 
 three-fourths of the States 
 
 ANSWER for a capital or infamous crime unless on presentment of a grand jury. 
 
 No person shall be held to. [Amendments] 
 
 Except in cases in the land or naval forces, or in the militia when in actual 
 
 service. [Amendments] 
 
 APPELLATE JURISDICTION both as to law and fact, with such exceptions and 
 under such regulations as Congress shall make. In what oases the Supreme 
 
 Court shall have 
 
 APPLICATION of the legislature or the executive of a State. The United States 
 
 shall protect each State against invasion and domestic violence on the — 
 
 APPLICATION of the legislatm-es of two-thirds of the States, Congress shall call 
 
 a convention for proposing amendments to the Constitution. On the. . . . 
 
 APPOINTMENT of officers and authority to train the militia reserved to the 
 
 States respectively 
 
 Of such inferior officers as they may think proper in the President alone. 
 
 Congress may by law vest the 
 
 APPOINTMENTS in the courts of law or in the Jieads of Departments. Congress 
 
 may by law vest the 
 
 APPORTIONMENT of representation and direct taxation among the several 
 States. Provisions relating to the. [Repealed by section 2 of fourteenth 
 
 amendment.] 1 2 
 
 APPORTIONMENT. Congress shaU have power to lay and collect taxes on 
 incomes, from whatever source derived, without apportionment among the 
 
 several States. The sixteenth amendment. [Amendments.] 16 
 
 Of Representatives among the several States. Provisions relating to the. 
 [Amendments] 14 2 
 
 2 
 4 
 
 8 
 2 
 2 
 
 6 
 
 7 
 
 2 
 3 
 
 1 
 
 1 
 
 2 
 1 
 
 16 
 2 
 2 
 
 144 
 
PL 1. THE CONSTITUTION. Analytical Index. 
 
 Arti- Sec- niaiise 
 cle. tion. *-ia,use. 
 
 APPROPRIATE LEGISLATION, Congress shall have power to make all laws 
 necessary and proper for carrying into execution the foregoing powers, and 
 all other powers vested by the Constitution in the Government of the 
 
 United States, or in any department or officer thereof 1 8 18 
 
 Congress shall have power to enforce the thirteenth article, prohibiting 
 
 slavery, by. [Amendments] 13 2 
 
 Congress shall have power to enforce the pro\'isione of the fourteenth article 
 
 by. [Amendments] 14 5 
 
 Congress shall have power to enforce the provisions of the fifteenth article by. 
 [Amendments] 15 2 
 
 APPROPRIATION of money for raising and supporting armies shall be for a 
 
 longer term than two years. But no 1 8 12 
 
 APPROPRIATIONS made by law. No money shall be drawn from the Treasiury 
 
 but in consequence of 1 9 7 
 
 APPROVE and sign a bill before it shaU become a law. The President shall... 17 2 
 He shall return it to the House in which it originated, with his objections, if 
 he do not 17 2 
 
 ARMIES, but no appropriation for that use shall be for a longer term than two 
 
 years. Congress shall have power to raise and support 1 8 12 
 
 ARMIES. Congress shall make rules for the government and regulation of the 
 
 land and naval forces 1 8 14 
 
 ARMS shall not be infringed. A well-regulated militia being necessary to the 
 seciu-ity of a free State, the right of the people to keep and bear. [Amend- 
 ments] 2 
 
 ARREST during their attendance at the session of their respective Houses, and 
 in going to and returning from the same. Members shall in all cases, 
 except treason, felony, and breach of the peace, be privileged from 1 6 1 
 
 ARSENALS. Congress shall exercise exclusive authority over all places pur- 
 chased for the erection of 1 8 17 
 
 ARTICLES exported from any State. No tax or duty shall be laid on 19 5 
 
 ARTS by securing to authors and inventors their patent rights. Congress may 
 
 promote the progress of science and the useful 18 8 
 
 ASSISTANCE of counsel for his defense. In all criminal prosecutions the ac- 
 cused shall have the. [Amendments] 6 
 
 ASSUMPTION of the debt or obligations incurred in aid of rebellion or insurrec- 
 tion against the United States. Provisions against the. [Amendments].. 14 4 
 
 ATTAINDER or EX POST FACTO law shall be passed. No bill of 19 3 
 
 ATTAINDER, EX POST FACTO law, or law impairing the obligation of con- 
 tracts. No State shall pass any bill of 1 10 1 
 
 ATTAINDER of treason shall not work corruption of blood or forfeiture, except 
 
 during the life of the person attainted 3 3 2 
 
 AUTHORS and inventors the exclusive right of their writings and inventions. 
 
 Congress shall have power to secure to 1 8 
 
 B. 
 
 BAIL. Excessive bail shall not be required, nor excessive fines nor cruel and 
 
 unusual punishments imposed. [Amendments] 8 
 
 BALLOT for President and Vice-President. The electors shall vote by. 
 
 [Amendments] 12 
 
 BALLOT. If no person have a majority of the electoral votes for President and 
 Vice-President, the House of Representatives shall immediately choose 
 the President by. [Amendments] 12 
 
 BANKRUPTCIES. Congress shall have power to pass imiform laws on the sub- 
 ject of 18 4 
 
 145 
 
Analytical Index. Ft. 1. TUB CONSTITUTION. 
 
 Arti- Sec- ^, 
 cle. tion. ^^a^®- 
 
 BASIS of representation among the several States. Provisions relating to the. 
 
 [Amendments] 14 2 
 
 BEAR ARMS shall not be infringed. A well-regulated militia being neces- 
 sary to the security of a free State, the right of the people to keep and. 
 [Amendments] 2 
 
 BEHAVIOR. The judges of the Supreme and inferior courts shall hold their 
 
 offices during good 3 1 
 
 BILL OF ATTAINDER or EX POST FACTO law shall be passed. No 1 9 3 
 
 BILL OF ATTAINDER, EX POST FACTO law, or law impairing the obUga- 
 
 tion of contracts. No State shall pass any 1 lO 1 
 
 BILLS of credit No State shall emit 1 10 1 
 
 BILLS for raising revenue shall originate in the House of Representatives. All. 1 7 1 
 
 BILLS which have passed the Senate and House of Representatives shall, before 
 
 they become laws, be presented to the President 1 7 2 
 
 If he approve, he shall sign them; if he disapprove, he shall return them, 
 with his objections, to that House in which they originated 1 7 2 
 
 BILLS. Upon the reconsideration of a bill returned by the President, with his 
 objections, if two-thirds of each House agree to pass the same, it shall be- 
 come a law 1 7 2 
 
 Upon the reconsideration of a bill returned by the President, the question 
 
 shall be taken by yeas and nays 17 2 
 
 Not retiu-ned by the President within ten days (Sundays excepted), shall, 
 unless Congress adjourn, become laws 17 2 
 
 BORROW money on the credit of the United States. Congress shall have 
 
 power to 18 2 
 
 BOUNTIES and pensions, shall not be questioned. The validity of the public 
 debt incurred in suppressing insurrection and rebellion against the United 
 States, including the debt for. [Amendments] 14 4 
 
 BREACH of the peace, shall be privileged from arrest while attending the ses- 
 sion, and in going to and returning from the same. Senators and Repre- 
 sentatives, except for treason, felony, and 16 1 
 
 BRIBERY, or other high crimes and misdemeanors. The President, Vice- 
 President, and all civil officers shall be removed on impeachment for and 
 conviction of treason 2 4 
 
 C. 
 
 CAPITAL or otherwise infamous crime, unless on indictment of a grand jury, 
 
 except in certain specified cases. No person shall be held to answer for a. 
 
 [Amendments] 5 
 
 CAPITATION or other direct tax shall be laid unless in proportion to the census 
 
 or enumeration. [See sixteenth amendment] No 1 9 4 
 
 CAPTURES on land and water. Congress shall make rules concerning 1 8 11 
 
 CASTING VOTE. The Vice-President shall have no vote unless the Senate be 
 
 equally di\'ided 1 3 4 
 
 CENSUS or enumeration of the inhabitants shall be made within three years 
 
 after the first meeting of Congress, and within every subsequent term of 
 
 ten years thereafter 1 2 3 
 
 CENSUS or enumeration. No capitation or other direct tax shall be laid except 
 
 in proportion to the. [See sixteenth amendment] 1 9 4 
 
 CHIEF JUSTICE shall preside when the President of the United States is tried 
 
 upon impeachment. The 1 3 6 
 
 CHOOSING the electors and the day on which they shall give their votes, which 
 
 shall be the same throughout the United States. Congress may determine 
 
 the time of 2 1 3 
 
 146 
 
Pt.l. THE CONSTITUTION. Analytical Index. 
 
 Arti- Sec- p, 
 cle. tion. ^'^"^6. 
 
 CITIZEN of the United States at the adoption of the Constitution shall be eligi- 
 ble to the office of President. No person not a natural born 2 14 
 
 CITIZEN of the United States. No person shall be a Senator who shall not have 
 
 attained the age of thirty years and been nine years a 13 3 
 
 No person shall be a Representative who shall not have attained the age of 
 twenty-five years and been seven years a 1 2 2 
 
 CITIZENSHIP. Citizens of each State shall be entitled to all the privileges and 
 
 immunities of citizens of the several States 4 2 1 
 
 All persons born or naturalized in the United States, and subject to the juris- 
 diction thereof, are citizens of the United States and of the State in which 
 
 they reside. [Amendments] 14 1 
 
 No State shall make or enforce any law which shall abridge the privileges or 
 
 immunities of citizens of the United States. [Amendments] 14 1 
 
 Nor shall any State deprive any person of life, liberty, or property without 
 
 due process of law. [Amendments] 14 1 
 
 Nor deny to any person within its jiu-isdiction the equal protection of the 
 laws. [Amendments] 14 1 
 
 CITIZENS OR SUBJECTS of a foreign state. The judicial power of the United 
 States shall not extend to suits in law or equity brought against one of the 
 States by the citizens of another State, or by. [Amendments] 11 
 
 CIVIL OFFICERS of the United States shall, on impeachment for and conviction 
 of treason, bribery, and other high crimes and misdemeanors, be removed. 
 All 2 4 
 
 CIjAIMS of the United States or any particular State in the Territory or public 
 
 property. Nothing in this Constitution shall be construed to prejudice. . 4 3 2 
 
 CLASSIFICATION OF SENATORS. Immediately after they shall be assem- 
 bled after the first election, they shall be divided as equally as may be into 
 
 three classes 13 2 
 
 The seats of the Senators of the first class shall be vacated at the expiration 
 
 of the second year 13 2 
 
 The seats of the Senators of the second class at the expiration of the foiuth 
 
 year 13 2 
 
 The seats of the Senators of the tliird class at the expiration of the sixth year. 13 2 
 
 COIN a tender in payment of debts. No State shall make anything but gold and 
 
 silver 1 10 1 
 
 COIN money and regulate the value thereof and of foreign coin. Congress shall 
 
 have power to 1 8 5 
 
 COIN of the United States. Congress shall provide for punishing the counter- 
 feiting the securities and current 1 8 6 
 
 COLOR, or previous condition of ser\dtude. The right of citizens of the United 
 States to vote shall not be denied or abridged by the United States or by 
 any State on account of race. [Amendments] 15 1 
 
 COMFORT. Treason against the United States shall consist in levying war 
 
 against them, and giving their enemies aid and 3 3 1 
 
 COMMANDER IN CHIEF of the Army and Navy, and of the militia when in 
 
 actual ser\dce. The President shall be 2 2 1 
 
 COMMERCE with foreign nations, among the States, and with Indian tribes. 
 
 Congress shall have power to regulate 1 8 3 
 
 COMMERCE OR REVENUE. No preference shall be given to the ports of one 
 
 State over those of another by any regulation of 19 6 
 
 Vessels clearing from the ports of one State shall not pay duties in those of 
 
 another 19 6 
 
 COMMISSIONS to expire at the end of the next session. The President may 
 
 fill vacancies that happen in the recess of the Senate by granting 2 2 3 
 
 COMMON DEFENSE, promote the general welfare, etc. To insure the. [Pre- 
 amble.] 
 
 147 
 
Analjrtical Index. Pt. 1. THE CONSTITUTION. 
 
 Arti- Sec- p, 
 cle. tion. ^'^use. 
 
 COMMON DEFENSE and general welfare. Congress shall have power to provide 
 
 for the 18 1 
 
 COMMON LAW, where the amount involved exceeds twenty dollars, shall be 
 
 tried by jury. Suits at. [Amendments] 7 
 
 No fact tried by a jury shall bo otherwise reexamined in any coiut of the 
 
 United States than according to the rules of the. [Amendments].... 7 
 
 COMPACT with another State. No State shall, without the consent of Congress, 
 
 enter into any agreement or 1 lo 3 
 
 COMPACT with a foreign power. No State shall, without the consent of Con- 
 gress, enter into any agreement or 1 10 3 
 
 COMPENSATION of Senators and Representatives to be ascertained by law. . . 16 1 
 
 COMPENSATION of the President shall not be increased nor diminished during 
 
 the period for which he shall be elected 2 1 6 
 
 COMPENSATION of the judges of the Supreme and inferior coiuls shall not be 
 
 diminished during their continuance in office 3 1 
 
 COMPENSATION. Private property shaU not be taken for public use without 
 
 just. [Amendments] 5 
 
 COMPULSORY PROCESS for obtaining witnesses in his favor. In criminal 
 
 prosecutions the accused shall have. [Amendments] 6 
 
 CONFEDERATION. No State shall enter into any treaty, alUance, or 1 10 1 
 
 CONFEDERATION. All debts contracted and engagements entered into before 
 the adoption of this Constitution shall be as valid against the United States 
 
 under it as under the 6 .. 1 
 
 CONFESSION in open court. Conviction of treason shaU be on the testimony 
 
 of two persons to the overt act, or upon 3 3 1 
 
 CONGRESS of the United States. All legislative powers shall be vested in a. . 1 1 
 
 Shall consist of a Senate and House of Representatives 1 1 
 
 Shall assemble at least once in every year, wliich shall be on the first Mon- 
 day of December, unless they by law appoint a different day 1 4 2 
 
 May at any time alter regulations for elections of Senators and Representa- 
 tives, except as to the places of choosing Senators 14 1 
 
 Each House shall be the judge of the elections, returns, and qualifications of 
 
 its own members 1 5 1 
 
 A majority of each House shall constitute a quorum to do business 15 1 
 
 A smaller number may adjourn from day to day and may be authorized to 
 
 compel the attendance of absent members 1 5 1 
 
 Each House may determine the rules of its proceedings, punish its members 
 for disorderly behavior, and, with the concurrence of two-thirds, expel a 
 
 member 15 2 
 
 Each House shall keep a journal of its proceedings 1 5 3 
 
 Neither House, during the session of Congress, shall, without the consent of 
 
 the other, adjourn for more than three days 1 5 4 
 
 Senators and Representatives shall receive a compensation to be ascertained 
 
 bylaw 16 1 
 
 They shall in all cases, except treason, felony, and breach of the peace, be 
 privileged from arrest during attendance at their respective Houses, and 
 
 in going to and returning from the same 1 6 1 
 
 No Senator or Representative shall, during his term, be appointed to any 
 civil office which shall have been created, or of which the emoluments 
 
 shall have been increased during such term 16 2 
 
 No person holding any oflace under the United States shall, while in office, be 
 
 a member of either House of Congress 16 2 
 
 All bills for raising revenue shall originate in the House of Representatives. 17 1 
 
 Proceedings in cases of bills returned by the President with his objections.. 17 1 
 
 Shall have power to lay and collect duties, imposts, and excises, pay the 
 debts, and provide for the common defense and general welfare 1 8 1 
 
 148 
 
1 
 
 8 
 
 G 
 
 1 
 
 8 
 
 7 
 
 1 
 
 8 
 
 8 
 
 1 
 
 8 
 
 9 
 
 1 
 
 8 
 
 12 
 
 1 
 
 8 
 
 13 
 
 1 
 
 8 
 
 14 
 
 1 
 
 8 
 
 15 
 
 1 
 
 8 
 
 16 
 
 Ft. 1. THE CONSTITUTION. Analytical Index. 
 
 Arti- Sec- p,„„<,p 
 cle. tion. ^'^use. 
 
 CONGRESS of the United States— Continued. 
 
 Shall have power to borrow money on the credit of the United States 1 8 2 
 
 To regulate foreign and domestic commerce, and with the Indian tribes 1 8 3 
 
 To establish a uniform rule of naturalization and uniform laws on the subject 
 
 of bankruptcies 18 4 
 
 To coin money, regulate its value, and the value of foreign coin, and to fix 
 the standard of weights and measures 1 8 5 
 
 To punish the counterfeiting the securities and current coin of the United 
 States 
 
 To establish post-offices and post-roads 
 
 To promote the progress of science and the useful arts 
 
 To constitute tribunals inferior to the Supreme Court 
 
 To define and to punish piracies and felonies on the high seas and to punish 
 offenses against the law of nations 1 8 10 
 
 To declare war, grant letters of marque and reprisal, and make rules concern- 
 ing captures on land and water 1 8 11 
 
 To raise and support armies, but no appropriation of money to that use shall 
 be for a longer term than two years 
 
 To provide and maintain a Navy 
 
 To make rules for the government of the Army and Navy 
 
 To call out the militia to execute the laws, suppress insurrections, and repel 
 invasions 
 
 To provide for organizing, arming, and equipping the mihtia 
 
 To exercise exclusive legislation over the District fixed for the seat of gov- 
 ernment, and over forts, magazines, arsenals, and dockyards 1 8 17 
 
 To make all laws necessary and proper to carry into execution all powers 
 
 vested by the Constitution in the Government of the United States 1 8 18 
 
 No person holding any office under the United States shall accept of any 
 present, emolument, office, or title of any kind from any foreign State, 
 without consent of 19 8 
 
 May determine the time of choosing the the electors for President and Vice- 
 President and the day on which they shall give their votes 2 13 
 
 The President may, on extraordinary occasions, convene either House of 2 3 
 
 The manner in which the acts, records, and judicial proceedings of the States 
 
 shall be proved, shall be prescribed by 4 1 
 
 New States may be admitted by Congress into this Union 4 3 1 
 
 Shall have power to make all needful rules and regulations respecting the 
 
 territory or other property belonging to the United States 4 3 2 
 
 Amendments to the Constitution shall be proposed whenever it shall be 
 deemed necessary by two-thirds of both Houses of 5 
 
 Persons engaged in insurrection or rebellion against the United States dis- 
 qualified for Senators or Representatives in. [Amendments] 14 
 
 But such disqualifications may be removed by a vote of two-thirds of both 
 Houses of. [Amendments] 14 
 
 Shall have power to enforce, by appropriate legislation, the thirteenth 
 amendment. [Amendments] 13 
 
 Shall have power to enforce, by appropriate legislation, the fourteenth 
 amendment. [Amendments] 14 
 
 Shall have power to enforce, by appropriate legislation, the fifteenth amend- 
 ment. [Amendments] 15 
 
 Shall have power to lay and collect taxes on incomes, from whatever source 
 derived, without apportionment, and without regard to any census or enu- 
 meration, the sixteenth amendment. [Amendments] 16 
 
 Shall have concurrent power with the States to enforce, by appropriate leg- 
 islation, the eighteenth amendment. [Amendments] 18 
 
 149 
 
Analytical Index Pt.l. THE CONSTITUTION 
 
 Arti- Sec- pi„,,„ 
 cle. tion. ^'^use. 
 
 CONSENT. No State shall bo deprived of its equal suffrage in the Senate with- 
 out its 5 
 
 CONSENT OF CONGRESS. No person holding any office of profit or trust 
 under the United States shall accej)! of any present, emolument, office, or 
 title of any kind whatever, from any king, prince, or foreign potentate, 
 
 without the 1 9 8 
 
 No State shall lay any imposts or duties on imports, except what may be 
 
 absolutely necessary for executing its inspection laws, mthout the 1 10 2 
 
 No State shall lay any duty of tonnage, keep troops or ships of war in time 
 
 of peace, without the 1 10 3 
 
 No State shall enter into any agreement or compact with another State, or 
 
 with a foreign power, ^vithout the 1 10 3 
 
 No State shall engage in war unless actually invaded, or in such imminent 
 
 danger as will not admit of delay, without the 1 10 3 
 
 No new State shall be formed or erected within the jurisdiction of any other 
 State, or any State be formed by the junction of two or more States, or 
 parts of States, without the consent of the legislatures thereof, as well as 
 the 4 3 1 
 
 CONSENT of the legislature of the State in which the same may be. Congress 
 shall exercise exclusive authority over all places purchased for the erec- 
 tion of forts, magazines, arsenals, dockyards, and other needful buildings 
 with the 1 8 17 
 
 CONSENT of the legislatures of the States and of Congress. No State shall 
 be formed by the junction of two or more States or parts of States without 
 the 4 3 
 
 CONSENT OF THE OTHER. Neither House, during the session of Congress, 
 shall adjourn for more than three days, nor to any other place than that in 
 which they shall be sitting, without the 1 5 4 
 
 CONSENT OF THE OWNER. No soldier shall be quartered in time of peace 
 
 in any house without the. [Amendments] 3 
 
 CONSENT OF THE SENATE. The President shall have power to make 
 
 treaties, by and with the advice and 2 2 2 
 
 The President shall appoint ambassadors, other public ministers and consuls, 
 judges of the Supreme Court, and all other officers created by law and not 
 otherwise herein provided for, by and with the advice and 2 2 2 
 
 CONSTITUTION, in the Government of the United States, or in any depart- 
 ment or officer thereof. Congress shall have power to pass all laws neces- 
 sary to the execution of the powers vested by 1 8 18 
 
 CONSTITUTION, shall be eUgible to the office of President. No person, except 
 
 a natural-born citizen, or a citizen at the time of the adoption of the 2 1 4 
 
 CONSTITUTION. The President, before he enters upon the execution of his 
 
 office, shall take an oath to preserve, protect, and defend the 2 '' 7 
 
 CONSTITUTION, laws, and treaties of the United States. The judicial power 
 
 shall extend to all cases arising under the 3 2 1 
 
 CONSTITUTION shall be so construed as to prejudice any claims of the United 
 States, or of any State (in respect to territory or other property of the 
 United States). Nothing in the 4 3 2 
 
 CONSTITUTION. The manner in which amendments to, may be propo.-ed and 
 
 ratified 5 
 
 CONSTITUTION shall be as valid under it as under the Confederation. All 
 
 debts and engagements contracted before the adoption of the 6 . . 1 
 
 CONSTITUTION and the laws made in pursuance thereof, and all treaties made, 
 or which shall be made, by the United States, shall be the supreme law of 
 
 the land. The 6 .. 2 
 
 The judges in every State, anything in the constitution or laws of a State to 
 the contrary notwithstanding, shall be bound thereby 6 .. 2 
 
 150 
 
Pt.l. THE CONSTITUTION. Analytical Index. 
 
 Arti- Sec- n\„.,^^ 
 cle. tion. Clause. 
 
 CONSTITUTION. All officers, legislative, executive, and judicial, of the 
 United States, and of the several States, shall be bound by an oath to sup- 
 port the 6 .. 3 
 
 But no religious test shall ever be required as a qualification for any office or 
 public trust 6 . . 3 
 
 CONSTITUTION, between the States so ratifying the same. The ratification of 
 the conventions of nine States shall be sufficient for the establishment of 
 the 7 
 
 CONSTITUTION of certain rights shall not be construed to deny or disparage 
 others retained by the people. The enumeration in the. [Amend- 
 ments] 9 
 
 CONSTITUTION, nor prohibited by it to the States, are reserved to the States 
 respectively or to the people. Powers not delegated to the United States 
 by the. [Amendments] 10 
 
 CONSTITUTION, and then engaged in rebellion against the United States. 
 Disqualification for office imposed upon certain classes of persons who took 
 an oath to support the. [Amendments] 14 3 
 
 CONSTITUTION. Done in convention by the unanimous consent of the States 
 present, September 17, 1787. 
 
 CONTRACTS. No State shall pass any ex post facto law, or law impairing the 
 
 obligation of 1 10 1 
 
 CONTROVERSIES to which the United States shall be a party; between two or 
 more States; between a State and citizens of another State; between citizens 
 of different States; between citizens of the same State claiming lands 
 under grants of different States; between a State or its citizens and foreign 
 States, citizens, or subjects. The judicial power shall extend to 3 2 1 
 
 CONVENE CONGRESS or either House, on extraordinary occasion. The Presi- 
 dent may 2 3 
 
 CONVENTION for proposing amendments to the Constitution. Congress, on the 
 
 application of two-thirds of the legislatures of the States, may call a 5 
 
 CONVENTION, by the unanimous consent of the States present on the 17th of 
 
 September, 1787. Adoption of the Constitution in 7 
 
 CONVENTIONS of nine States shall be sufficient for the establishment of the 
 
 Constitution. The ratification of the 7 
 
 CONVICTION in cases of impeachment shall not be had without the concur- 
 rence of two-thirds of the members present 1 3 6 
 
 COPYRIGHTS to authors for limited times. Congress shall have power to pro- 
 vide for 1 8 8 
 
 CORRUPTION OF BLOOD. Attainder of treason shall not work 3 3 2 
 
 COUNSEL for his defense. In all criminal prosecutions the accused shall have 
 
 the assistance of. [Amendments] 6 
 
 COUNTERFEITING the securities and current coin of the United States. Con- 
 gress shall provide for the punishment of 1 8 6 
 
 COURTS. Congress shall have power to constitute tribunals inferior to the Su- 
 preme Court 1 8 9 
 
 COURTS OF LAW. Congress may by law vest the appointment of such inferior 
 officers as they think proper in the President alone, in the heads of De- 
 partments, or in the 2 2 2 
 
 COURTS as Congress may establish. The judicial power of the United States 
 
 shall be vested in one Supreme Court and such inferior 3 1 
 
 COURTS. The judges of the Supreme and inferior coiu-ts shall hold their offices 
 
 during good behavior 3 1 
 
 Their compensation shall not be diminished during their continuance in 
 
 office 3 1 
 
 CREDIT. No State shall emit bills of 1 10 1 
 
 151 
 
Analytical Index. 
 
 Pt. 1. THE CONSTITUTION. 
 
 CREDIT of the United States. Congress shall have power to borrow money on 
 the 
 
 CREDIT shall be given in every other State to the public acts, records, and judi- 
 cial proceedings of each State. Full faith and 
 
 CRIME, unless on a presentment of a grand jiu"y. No person shall be held to 
 
 answer for a capital or otherwise infamous. [Amendments] 
 
 Except in cases in the milifairy and naval forces, or in the militia, when in 
 
 actual service. [Amendments] 
 
 CRIMES AND MISDEMEANORS. The President, Vice-President, and all 
 civil officers shall be removed on impeachment for and conviction of trea- 
 son, bribery, or other 
 
 CRIMES, except in cases of impeachment, shall be tried by jiu-y. All 
 
 They shall be tried in the State within which they may be committed 
 
 "When not committed in a State, they shall be tried at the places which Con- 
 gress may by law have provided 
 
 CRIMINAL PROSECUTIONS, the accused shall have a speedy and public trial 
 by jury in the State and district where the crime was committed. In all. 
 
 [Amendments] 
 
 He shall be informed of the nature and cause of the accusation. [Amend- 
 ments] 
 
 He shall be confronted with the witnesses against him. [Amendments] 
 
 He shall have compulsory process for obtaining witnesses in his favor. 
 
 [Amendments]. 
 
 He shall have the assistance of counsel in his defense. [Amendments] 
 
 CRIMINATE HIMSELF. No person as a witness shall be compelled to. 
 
 [Amendments] 
 
 CRUEL AND UNUSUAL PUNISHMENTS inflicted. Excessive bail shaU 
 not be required, nor excessive fines imposed, nor. [Amendments] 
 
 Arti- Seo- 
 cle. tion. 
 
 1 8 
 
 4 1 
 
 5 .. 
 
 5 .. 
 
 2 4 
 
 3 2 
 3 2 
 
 6 
 6 
 
 6 
 6 
 
 5 
 
 8 
 
 D. 
 
 DANGER as will not admit of delay. No State shall, without the consent of 
 
 Congress, engage in war, unless actually invaded or in such imminent 1 
 
 DAY on which they shall vote for President and Vice-President, which shall be 
 the same throughout the United States. Congress may determine the time 
 of choosing the electors and the 2 
 
 DAY TO DAY, and may be authorized to compel the attendance of absent mem- 
 bers. A smaller number than a quorum of each House may adjourn from. 1 
 
 DEATH, resignation, or inabihty of the President, the powers and duties of his 
 
 ofiice shall devolve on the Vice-President. In case of the 2 
 
 DEATH, resignation, or inability of the President. Congress may provide by 
 
 law for the case of the removal 2 
 
 DEBT of the United States, including debts for pensions and bounties incurred 
 in suppressing insiurection or rebellion, shall not be questioned. The 
 validity of the public. [Amendments] 14 
 
 DEBTS. No State shall make anything but gold and silver coin a tender in pay- 
 ment of 1 
 
 DEBTS and provide for the common defense and general welfare of the United 
 
 States. Congress shall have power to pay the 1 
 
 DEBTS and engagements contracted before the adoption of this Constitution 
 
 shall be as valid against the United States under it as under the Confederation 6 
 
 DEBTS or obligations incurred in aid of insurrection or rebellion against the 
 United States, or claims for the loss or emancipation of any slave. Neither 
 the United States nor any State shall assume or pay an}\ [Amendments]. 14 
 
 DECLARE "WAR, grant letters of marque and reprisal, and make rules concern- 
 ing captures on land and water. Congress shall have power to 1 
 
 Clause, 
 2 
 
 3 
 3 
 
 10 
 
 3 
 1 
 5 
 5 
 
 10 
 
 1 
 1 
 1 
 
 11 
 
 152 
 
Pt.l. THE CONSTITUTION. Analytical Index. 
 
 Arti- Sec- (,,„,„. 
 cle. tion. "-'^use. 
 
 DEFENSE, promote the general welfare, etc. To insure the common. [Pre- 
 amble.] 
 
 DEFENSE and general welfare throughout the United States. Congress shall 
 
 have power to pay the debts and provide for the common 1 8 1 
 
 DEFENSE. In all criminal prosecutions the accused shall have the assistance 
 
 of counsel for his. [Amendments] 6 
 
 DELAWARE entitled to one Representative in the First Congress 1 2 3 
 
 DELAY. No State shall, without the consent of Congress, engage in war unless 
 
 actually invaded, or in such imminent danger as will not admit of 1 10 3 
 
 DELEGATED to the United States, nor prohibited to the States, are reserved to 
 
 the States or to the people. The powers not. [Amendments] 10 
 
 DENY OR DISPARAGE others retained by the people. The enumeration in 
 
 the Constitution of certain rights shall not be construed to. [Amendments] 9 
 
 DEPARTMENTS upon any subject relating to their duties. The President may 
 
 require the written opinion of the principal officers in each of the Executive .221 
 
 DEPARTMENTS. Congress may by law vest the appointment of inferior officers 
 
 in the heads of 2 2 2 
 
 DIRECT TAX shall be laid unless in proportion to the census or enumeration. 
 
 No capitation or other 1 9 4 
 
 DIRECT TAXES and Representatives, how apportioned among the several 
 
 States. [Repealed by the second section of the fourteenth amendment] . . 12 3 
 
 DISABILITY of the President and Vice-President. Provisions in case of the. .215 
 
 DISABILITY. No person shall be a Senator or Representative in Congress, or 
 Presidential elector, or hold any office, civil or military, xmder the United 
 States, or any State, who having previously taken an oath as a legislative, 
 executive, or judicial officer of the United States, or of any State, to support 
 the Constitution, afterwards engaged in insurrection or rebellion against 
 the United States. [Amendments] 14 3 
 
 DISABILITY. But Congress may, by a vote of two-thirds of each House, re- 
 move Buch. [Amendments] 14 3 
 
 DISAGREEMENT between the two Houses as to the time of adjournment, the 
 President may adjourn them to such time as he may think proper. In 
 case of 2 3 
 
 DISORDERLY BEHAVIOR. Each House may punish its members for 15 2 
 
 And with the concurrence of two-thirds expel a member for 1 5 2 
 
 DISPARAGE others retained by the people. The enumeration in the Consti- 
 tution of certain rights shall not be construed to deny or. [Amendments] . 9 
 
 DISQUALIFICATION. No Senator or Representative shall, during the time 
 for which he was elected, be appointed to any office under the United 
 States which shall have been created or its emoluments increased during 
 
 such term 16 2 
 
 No person holding any office under the United States shall be a member of 
 
 either House during his continuance in office 1 6 2 
 
 No person shall be a member of either House, Presidential elector, or hold 
 any office under the United States, or any State, who, having previously 
 sworn to support the Constitution, afterwards engaged in insurrection or 
 
 rebellion. [Amendments] 14 3 
 
 But Congress may, by a vote of two-thirds of each House, remove such dis- 
 ability. [Amendments] 14 3 
 
 DISTRICT OF COLUMBIA. Congress shall exercise exclusive legislation in 
 
 all cases over the 1 8 17 
 
 DOCKYARDS. Congress shall have exclusive authority over all places pur- 
 chased for the erection of 1 8 17 
 
 DOMESTIC TRANQUILLITY, provide for the common defense, etc. To in- 
 sure. [Preamble.] 
 
 163 
 
Analytical Index. Pt.l. THE CONSTITUTION. 
 
 Arti- Sec- p, 
 cle. tion. '^"*"'"=' 
 
 DOMESTIC VIOLENCE. The United States shall protect each State against 
 
 invasion and 4 4 
 
 DUE PROCESS OF LAW. No person shall be compelled, in any criminal 
 case, to be a ^vnitness against himself, nor be deprived of life, liberty, or 
 
 property without. [Amendments] 5 
 
 No State shall deprive any person of life, liberty, or property without. 
 
 [Amendments] 14 1 
 
 DUTIES AND POWERS of the office of President, in case of his death, removal, 
 
 or inability to act, shall devolve on the Vice-President 2 1 5 
 
 DUTIES AND PO^^^RS. In case of the disability of the President and Vice- 
 President, Congress shall declare what ofHccr shall act , 2 15 
 
 DUTIES, imposts, and excises. Congress shall have power to lay and collect 
 
 taxes 1 8 1 
 
 Shall be uniform throughout the United States 18 1 
 
 DUTIES shall bo laid on articles exported from any State. No tax or 1 9 5 
 
 DUTIES in another State. Vessels clearing in the ports of one State shall not 
 
 be obliged to pay 19 6 
 
 On imports and exports, without the consent of Congress, except where 
 
 necessary for executing its inspection laws. No State shall lay any 1 10 2 
 
 DUTIES on imports or exports. The net produce of all such duties shall be for 
 
 the use of the Treasury of the United States 1 10 2 
 
 All laws laying such duties shall be subject to the revision and control of 
 
 Congress 1 10 2 
 
 DUTY OF TONNAGE without the consent of Congress. No State shall lay any. 1 10 3 
 
 E. 
 
 ELECTION of President and Vice-President. Congress may determine the day 
 
 for the 2 13 
 
 Shall be the same throughout the United States. The day of the 2 13 
 
 ELECTIONS for Senators and Representatives. The legislatures of the States 
 
 shall prescribe the times, places, and manner of holding 1 4 1 
 
 But Congress may, at any time, alter such regulations, except as to the places 
 
 of choosing Senators 1 4 1 
 
 ELECTIONS for Senators and Representatives. Returns and qualifications of 
 
 its own members. Each House shall be judge of the 15 1 
 
 ELECTORS for members of the House of Representatives. Qualifications of. .. 12 1 
 
 ELECTORS for members of the Senate, qualifications of. The seventeenth 
 
 amendment. [Amendments] 17 
 
 ELECTORS for President and Vice-President. Each State shall appoint, in such 
 manner as the legislature thereof may direct, a number of electors equal to 
 the whole number of Senators and Representatives to which the State may 
 
 be entitled in the Congress 2 1 2 
 
 But no Senator or Representative, or person holding an office of trust or 
 
 profit under the United States shall be appointed an elector 2 1 2 
 
 ELECTORS. Congress may determine the time of choosing the electors and the 
 
 day on which they shall give their votes 2 1 3 
 
 Which day shall be the same throughout the United States 2 1 3 
 
 The electors shall meet in their respective States and vote by ballot for Presi- 
 dent and Vice-President, one of whom, at least, shall not be an inhabitant 
 
 of the same State with themselves. [Amendments] 12 
 
 ELECTORS shall name, in their ballots, the person voted for as President; and 
 
 in distinct ballots the person voted for as Vice-President. [Amendments]. 12 
 They shall make distinct lists of the persons voted for as President and of 
 persons voted for as Vice-President, which they shall sign and certify, and 
 transmit sealed to the seat of government, directed to the President of the 
 Senate. [Amendments] 12 
 
 154 
 
Pt. 1. THE CONSTITUTION. Analytical Index. 
 
 Arti- Sec- p. 
 cle. tion. *-iause. 
 
 ELECTORS— Continued. 
 
 No person having taken an oath as a legislative, executive, or judicial officer 
 of the United States, or of any State, and afterwards engaged in insurrection 
 or rebellion against the United States, shall be an elector. [Amendments].. 14 3 
 But Congress may, by a vote of two-thirds of each House, remove such disa- 
 bility. [Amendments] 14 3 
 
 EMANCIPATION of any slave shall be held to be illegal and void. Claims for 
 
 the loss or. [Amendments] 14 4 
 
 EMIT BILLS OF CREDIT. No State shall 1 10 1 
 
 EMOLUMENT of any kind from any king, prince, or foreign State, without the 
 consent of Congress. No person holding any office under the United States 
 shall accept any 1 9 
 
 ENEMIES. Treason shall consist in levying war against the United States, in 
 
 adhering to, or giving aid and comfort to their 3 3 1 
 
 ENGAGEMENTS contracted before the adoption of this Constitution shall be 
 
 valid. All debts and 6 . . 1 
 
 ENUMERATION of the inhabitants shall be made within three years after the 
 first meeting of Congress, and within every subsequent term of ten years 
 
 thereafter 1 2 3 
 
 Ratio of representation not to exceed one for every 30,000 until the first 
 
 enumeration shall be made 1 2 3 
 
 In the Constitution, of certain rights, shall not be construed to deny or dis- 
 parage others retained by the people. The. [Amendments.] [See six- 
 teenth amendment] 9 
 
 EQUAL PROTECTION of the laws. No State shall deny to any person within 
 
 its jurisdiction the. [Amendments] 14 1 
 
 EQUAL SUFFRAGE in the Senate. No State shall be deprived without its 
 
 consent of its 5 
 
 ESTABLISHMENT of this Constitution between the States ratifying the same. 
 
 The ratification of nine States shall be sufficient for the 7 
 
 EXCESSIVE BAIL shall not be required, nor excessive fines imposed, nor cruel 
 
 and unusual punishments inflicted. [Amendments] 8 
 
 EXCISES. Congress shall have power to lay and collect taxes, duties, imposts, 
 
 and 18 1 
 
 Shall be uniform throughout the United States. All duties, imposts, and. . 18 1 
 
 EXCLUSIVE LEGISLATION, in all cases, over such district as may become 
 
 the seat of government. Congress shall exercise 1 8 17 
 
 EXCLUSIVE LEGISLATION over all places purchased for the erection of forts, 
 magazines, arsenals, dockyards, and other needful buildings. Congress 
 shall exercise 1 8 17 
 
 EXECUTIVE OF A STATE . The United States shall protect each State against 
 
 invasion and domestic violence on the application of the legislature or the . . 4 4 
 
 EXECUTIVE AND JUDICIAL OFFICERS of the United States and of the 
 
 several States shall be bound by an oath to support the Constitution 6 . . 3 
 
 EXECUTIVE DEPARTMENTS. On subjects relating to their duties the Presi- 
 dent may require the written opinions of the principal officers in each of 
 
 the 2 2 1 
 
 Congressmay by law vest the appointment of inferior officers in the heads of. . 2 2 2 
 
 EXECUTIVE POWER shall be vested in a President of the United States of 
 
 America. The 2 11 
 
 EXPEL A MEMBER. Each House, with the concurrence of two-thirds, may. 15 2 
 
 EXPENDITURES of public money shall be published from time to time. A 
 
 regular statement of the receipts and 1 9 7 
 
 EXPORTATION OF INTOXICATING LIQUORS for beverage purposes pro- 
 hibited. [Amendments] 18 1 
 
 EXPORTATIONS from any State. No tax or duty shall be laid on 1 9 5 
 
 54641°— 22 11 165 
 
Analytical Index. Pt.l. THE CONSTITUTION. 
 
 Arti- Sec- p,„,„„ 
 cle. tion. Clause. 
 
 EXPORTS OR IMPORTS, except upon certain conditions. No State shall, 
 
 witliout the consent of Congress, lay any duties on 1 10 2 
 
 Laid by any State shall be for the use of the Treasury. The net produce of 
 
 all duties on 1 JO 2 
 
 Shall be subject to the revision and control of Congress. All laws of the 
 
 States laying duties on 1 10 2 
 
 EX POST FACTO law shall be passed. No bill of attainder or 1 9 3 
 
 EX POST FACTO law, or law impairing the obligation of contracts. No State 
 
 shall pass any bill of attainder 1 10 1 
 
 EXTRAORDINARY OCCASIONS. The President may convene both Houses 
 
 or either of them 2 3 
 
 F. 
 
 FAITH and credit in each State shall be given to the acts, records, and judicial 
 
 proceedings of another State. Full 4 1 
 
 FELONY, and breach of the peace. Members of Congress shall not be privileged 
 
 from arrest for treason 16 1 
 
 FELONIES committed on the high seas. Congress shall have power to define 
 
 and punish ])iracies and 1 8 10 
 
 FINES. Excessive fines shall not be imposed. [Amendments] 8 
 
 FOREIGN COIN. Congress shall have power to coin money, fix the standard of 
 
 weights and measures, and to regulate the value of 1 8 ^ 
 
 FOREIGN NATIONS among the States and with the Indian tribes. Congress 
 
 shall have power to regulate commerce with 18 3 
 
 FOREIGN POWER. No State shall, without the consent of Congress, enter into 
 
 any compact or agreement with any 1 10 3 
 
 FORFEITURE except during the life of the person attainted. Attainder of 
 
 treason shall not work 3 3 2 
 
 FORMATION of new States. Provisions relating to the 4 3 1 
 
 FORM OF GOVERNMENT. The United States shall guarantee to every State 
 
 in this Union a republican 4 4 
 
 And shall protect each of them against invasion; and on application of the leg- 
 islature or of the executive (when the legislature can not be convened) 
 against domestic violence 4 4 
 
 FORTS, magazines, arsenals, dockyards, and other needfiil buildings. Congress 
 shall exercise exclusive authority over all places purchased for the erec- 
 tion of 1 8 17 
 
 FREEDOM of speech or the press. Congress shall make no law abridging the. 
 
 [Amendments] 1 
 
 FREE STATE, the right of the people to keep and bear arms shall not be infringed. 
 A well-regulated militia being necessary to the security of a. [Amend- 
 ments] 2 
 
 FUGITIVES from crime found in another State shall, on demand, be delivered up 
 
 totheauthoritiesof the State from which they may flee 4 2 2 
 
 FUGITIVES from service or labor in one State, escaping into another State, shall 
 
 be delivered up to the party to whom such service or labor may be due 4 2 3 
 
 G. 
 
 GENERAL WELFARE and secure the blessings of liberty, etc. To promote the. 
 
 [Preamble.] 
 GENERAL WELFARE. Congress shall have power to provide for the common 
 
 defense and 1 8 1 
 
 GEORGIA shall be entitled to three Representatives in the First Congress 1 2 3 
 
 GOLD AND SILVER coin a tender in payment of debts. No State shall make 
 
 anything but 1 10 1 
 
 156 
 
Pt.l. THE CO NSTITD TIO N. Analytical Index . 
 
 Arti- Sec- p,;,,,,- 
 cle. tion. ^'^use. 
 
 GOOD BEHAVIOR. The judges of the Supreme and inferior courts shall hold 
 
 their offices during 3 1 
 
 GOVERNMENT . The United States shall guarantee to every State in this Union 
 
 a republican form of 4 4 
 
 And shall protect each of them against invasion ; and on application of the leg- 
 islature or of the executive (when the legislature can not be convened) 
 against domestic violence 4 4 
 
 GRAND JURY. No person shall be held to answer for a capital or otherwise in- 
 famous crime, unless on the presentment of a. [Amendments] 5 
 
 Except in cases arising in the land and naval forces, and in the militia when in 
 actual service. [Amendments] 5 
 
 GUARANTEE to every State in this Union a republican form of government. 
 
 The United States shall 4 4 
 
 GUARANTEE. And shall protect each of them against invasion, and on applica- 
 tion of the legislature or of the executive (when the legislature can not be 
 convened) against domestic violence 4 4 
 
 H. 
 
 HABEAS CORPUS shall not be suspended unless in cases of rebellion or invasion. 
 
 The writ of 19 2 
 
 HEADS OF DEPARTMENTS. Congress may by law vest the appointment of 
 
 inferior officers in the 2 2 2 
 
 On any subject relating to their duties, the President may require the written 
 
 opinion of the principal officers in each of the Execiitive Departments 2 2 1 
 
 HIGH CRIMES AND MISDEMEANORS. The President, Vice-President, and 
 all civil officers shall be removed on impeachment for and conviction of 
 
 treason, bribery, or other 2 4 
 
 HOUSE OF REPRESENTATIVES. Congress shall consist of a Senate and. . . . 1 1 
 
 Shall be composed of members chosen every second year 1 2 1 
 
 Qualifications of electors for members of the 1 2 1 
 
 No person shall be a member who shall not have attained the age of twenty- 
 five years, and been seven years a citizen of the United States 1 2 2 
 
 The executives of the several States shall issue writs of election to fill vacan- 
 cies in the 12 4 
 
 Shall choose their Speaker and other officers 1 2 5 
 
 Shall have the sole power of impeachment 1 2 5 
 
 Shall be the judge of the elections, returns, and qualifications of its own 
 
 members 15 1 
 
 A majority shall constitute a quorum to do business 1 5 1 
 
 Less than a majority may adjourn from day to day, and compel the attend- 
 ance of absent members 1 5 1 
 
 May determine its own rules of proceedings 1 5 2 
 
 May punish its members for disorderly behavior, and, with the concurrence 
 
 of two-thirds, expel a member 1 5 2 
 
 Shall keep a journal of its proceedings 1 5 3 
 
 Shall not adjourn for more than three days during the session of Congress 
 
 without the consent of the Senate 15 4 
 
 For any speech or debate in either House, members shall not be questioned 
 
 in any other place 16 1 
 
 No person holding any office under the United States shall, while holding 
 
 such office, be a member of the 1 6 2 
 
 No member shall, during the time for which he was elected, be appointed 
 to an office which shall have been created or the emoluments increased 
 
 during his membership 16 2 
 
 All bills for raising revenue shall originate in the 1 7 1 
 
 157 
 
Analytical Index. I't. 1. THE CONSTITUTION. 
 
 Arti- Sec- ny „ 
 
 cle. tion. Cl*"^** 
 
 HOUSE OF REPRESENTATIVES— Continued. 
 
 The votes for President and Vice-President shall be counted in the presence 
 of the Senate and. [Amendments] 12 
 
 If no person have a majority of electoral votes, then from the three highest 
 on the list the House of Representatives shall immediately, by ballot, 
 choose a President. [Amendments] 12 
 
 They shall vote by States, each State counting one vote. [Amendments].. 12 
 
 A quorum shall consist of a member or members from two-thirds of the States, 
 and a majority of all the States shall be necessary to the choice of a Presi- 
 dent. [Amendments] 12 
 
 No person having as a legislative, executive, or judicial officer of the United 
 States, or of any State, taken an oath to support the Constitution, and after- 
 wards engaged in insurrection or rebellion against the United States, shall 
 be a member of the. [Amendments] 14 3 
 
 But Congress may, by a vote of two-thirds of each House, remove such disa- 
 bility. [Amendments] 14 3 
 
 I. 
 
 IMMINENT DANGER as will not admit of delay. No state shall, without the 
 
 consent of Congress, engage in war, unless actually invaded or in such 1 10 3 
 
 IMMUNITIES. Members of Congress shall, in all cases except treason, felony, 
 and breach of the peace, be privileged from arrest during their attendance 
 at the session of their respective Houses, and in going to and returning from 
 the same 1 6 1 
 
 No soldier shall be quartered in any house without the consent of the owner 
 in time of peace. [Amendments] 3 
 
 No person shall be twice put in jeopardy of Life or limb for the same offense. 
 [Amendments] 5 
 
 All persons born or naturalized in the United States, and subject to the juris- 
 diction thereof, are citizens of the United States and of the State in which 
 they reside. [Amendments] 14 1 
 
 No State shall make or enforce any law which shall abridge the privileges or 
 immunities of citizens of the United States. [Amendments] 14 1 
 
 Nor shall any State deprive any person of life, liberty, or property without 
 due process of law. [Amendments] 14 1 
 
 Nor deny to any person within its jurisdiction the equal protection of the 
 
 laws. [Amendments] 14 1 
 
 IMPEACHMENT. The President may grant reprieves and pardons except in 
 
 cases of 2 2 1 
 
 The House of Representatives shall have the sole power of 1 2 5 
 
 The trial of all crimes shall be by jury, except in cases of 3 2 3 
 
 IMPEACHMENT for and conviction of treason, bribery, and other high crimes 
 and misdemeanors. The President, Vice-President, and all civil officers 
 
 shall be removed iipon 2 4 
 
 IMPEACHMENTS. The Senate shall have sole power to try all 1 3 6 
 
 The Senate shall be on oath or affirmation when sitting for the trial of 1 3 6 
 
 When the President of the United States is tried the Chief Justice shall pre- 
 side 13 6 
 
 No person shall be convicted without the concurrence of two-thirds of the 
 members present 13 6 
 
 Judgment shall not extend beyond removal from office and disqualification 
 
 toholdoffice 13 7 
 
 But the party convicted shall be liable to indictment and punishment 
 
 according to law 1 3 7 
 
 IMPORTATION OF INTOXICATING LIQUORS for beverage purposes pro- 
 hibited. [Amendments] 18 1 
 
 158 
 
 M 
 
Pt.l. THE CONSTITUTION. Analytical Index. 
 
 Arti- Sec- n\^.,^^ 
 cle. tion. ^^aus*- 
 
 IMPORTATION of slaves prior to 1808 shall not be prohibited by the Congress. 19 1 
 
 But a tax or duty of ten dollars for each person may be imposed on such 19 1 
 
 IMPORTS OR EXPORTS except what may be absolutely necessary for exe- 
 cuting its inspection laws. No State shall, without the consent of Con- 
 gress, lay any imposts or duties on 1 10 2 
 
 IMPORTS OR EXPORTS laid by any State shall be for the use of the Treasury. 
 
 The net produce of all duties on 1 10 2 
 
 IMPORTS OR EXPORTS shall be subject to the revision and control of Con- 
 gress. All laws of States laying duties on 1 10 2 
 
 IMPOSTS AND EXCISES. Congress shall have power to lay and collect taxes, 
 
 duties 1 8 1 
 
 Shall be uniform throughout the United States. All taxes, duties 1 8 1 
 
 INABILITY of the President, the powers and duties of his office shall devolve 
 
 on the Vice-President. In case of the death, resignation, or 2 1 5 
 
 INABILITY of the President or Vice-President. Congress may provide by law 
 
 for the case of the removal, death, resignation, or 2 1 5 
 
 INCOMES, the Congress shall have power to lay and collect taxes on. The six- 
 teenth amendment. [Amendments] 16 
 
 INDIAN TRIBES. Congress shall have power to regulate commerce with the. 18 3 
 
 INDICTMENT or presentment of a grand jury. No person shall be held to 
 
 answer for a capital or infamous crime unless on. [Amendments] 5 
 
 Except in cases arising in the land or naval forces or in the militia when 
 in actual service. [Amendments] 5 
 
 INDICTMENT, trial, judgment, and punishment, according to law. The party 
 convicted in case of impeachment shall nevertheless be liable and sub- 
 ject to 13 7 
 
 INFAMOUS CRIME unless on presentment or indictment of a grand jury. No 
 
 person shall be held to answer for a capital or. [Amendments] 5 
 
 INFERIOR COURTS. Congress shall have power to constitute tribunals 
 
 inferior to the Supreme Court 1 8 9 
 
 INFERIOR COURTS as Congress may establish. The judicial power of the 
 
 United States shall be vested in one Supreme Court and such 3 1 
 
 The judges of both the Supreme and inferior cotu"ts shall hold their offices 
 
 during good behavior 3 1 
 
 Their compensation shall not be diminished during their continuance in 
 office 3 1 
 
 INFERIOR OFFICERS in the courts of law, in the President alone, or in the 
 heads of Departments. Congress, if they think proper, may by law vest 
 the appointment of 2 2 2 
 
 INHABITANT OF THE STATE for which he shall be chosen. No person 
 shall be a Senator who shall not have attained the age of thirty years, 
 been nine years a citizen of the United States, and who shall not, when 
 elected, be an 13 3 
 
 INSURRECTION OR REBELLION against the United States. No person 
 shall be a Senator or Representative in Congress, or Presidential elector, 
 or hold any office, civil or military, under the United States, or any State, 
 who, having taken an oath as a legislative, executive, or judicial officer 
 of the United States, or of a State, afterwards engaged in. [Amendments]. 14 3 
 But Congress may, by a vote of two-thirds of each House, remove such dis- 
 abilities. [Amendments] 14 3 
 
 Debts declared illegal and void which were contracted in aid of. [Amend- 
 ments] 14 4 
 
 INSURRECTIONS and repel invasions. Congress shall provide for calling 
 
 forth the militia to suppress 1 8 15 
 
 INTOXICATING LIQUORS, for beverage purposes, prohibited. [Amend- 
 ments] 18 1 
 
 159 
 
Analytical Index. Pt.l. THE CONSTITUTION. 
 
 Arti- 
 cle. 
 
 INVASION. No State shall, without the consent of Oono^ress, engage in war 
 unless actually invaded, or in such imminent danger as will not admit of 
 
 delay 1 
 
 The WTit of habeas corpus shall not be susjiended unless in case of rebellion or . 1 
 
 INVASION and domestic violence. The United States shall protect each State 
 
 against 4 
 
 INVASIONS. Congress shall provide for calling forth the militia to suppress 
 
 insurrections and repel 1 
 
 INVENTORS AND AUTHORS in their inventions and writings. Congress 
 
 may pass laws to secure for limited times exclusive rights to 1 
 
 INVOLUNTARY SERVITUDE, except as a punishment for crime, abolished 
 
 in the United States. Slavery and. [Amendments] 13 
 
 J. 
 
 JEOPARDY of life or limb for the same offense. No person shall be twice put 
 
 in. [Amendments] 5 
 
 JOURNAL of its proceedings. Each House shall keep a 1 
 
 JUDGES in every State shall be bound by the Constitution, the laws made in 
 pursuance thereof, and treaties of the United States, which shall be the 
 
 supreme law of the land 6 
 
 JUDGES of the Supreme and inferior courts shall hold their offices during good 
 
 behavior 3 
 
 Their compensation shall not be diminished during their continuance in 
 
 office 3 
 
 JUDGMENT in cases of impeachment shall not extend further than to removal 
 from office and disqualification to hold any office of honor, trust, or profit 
 
 under the United States 1 
 
 But the party convicted shall nevertheless be liable and subject to indict- 
 ment, trial, judgment, and punishment according to law 1 
 
 JUDICIAL POWER OF THE UNITED STATES. Congress shall have power 
 
 to constitute tribunals inferior to the Supreme Court 1 
 
 The judicial power of the United States shall be vested in one Supreme Court, 
 and in such inferior courts as Congress may from time to time ordain and 
 
 establish 3 
 
 The judges of the Supreme and inferior courts shall hold their offices during 
 
 good behavior 3 
 
 Their compensation shall not be diminished during their continuance in 
 
 olfice 3 
 
 It shall extend to all cases in law and equity arising under the Constitution, 
 
 laws, and treaties of the United States 3 
 
 To all cases affecting ambassadors, other public ministers and consuls 3 
 
 To all cases of admiralty and maritime jurisdiction 3 
 
 To controversies to which the United States shall be a party 3 
 
 To controversies between two or more States 3 
 
 To controversies between a State and citizens of another State 3 
 
 To controversies between citizens of different States 3 
 
 To citizens of the same State claiming lands under grants of different States. . 3 
 To controversies between a State or its citizens and foreign states, citizens, or 
 
 subjects 3 
 
 In all cases affecting ambassadors, other public ministers and consuls, and 
 those in which a State shall be a party, the Supreme Court shall have 
 
 original jurisdiction 3 
 
 In all other cases before mentioned it shall have appellate jurisdiction, both 
 as to law and fact, with such exceptions and under such regulations as 
 Congress shall make 3 
 
 Sec- 
 tion. 
 
 Clause. 
 
 10 
 9 
 
 1 
 1 
 
 3 
 3 
 
 2 
 2 
 2 
 2 
 2 
 2 
 2 
 2 
 
 15 
 
 7 
 7 
 9 
 
 160 
 
Pt.l. THE CONSTITUTION. Analytical Index. 
 
 Arti- Sec- pi-.jsp 
 cle. tion. Clause. 
 
 JUDICIAL POWER OF THE UNITED STATES— Continued. 
 
 The trial of all crimes, except in cases of impeachment, shall be by jury- 3 2 3 
 
 The trial shall be held in the State where the crimes shall have been com- 
 mitted .,... 3 2 3 
 
 But when not committed in a State, the trial shall be at such place or places 
 
 as Congress may by law have directed 3 2 3 
 
 The judicial power of the United States shall not be held to extend to any 
 suit in law or equity commenced or prosecuted against one of the United 
 States by citizens of another State, or by citizens or subjects of any foreign 
 
 state. [Amendments] 11 
 
 JUDICIAL PROCEEDINGS of every other State. Full faith and credit shall 
 
 be given in each State to the acts, records, and 4 1 
 
 Congress shall prescribe the manner of proving such acts, records, and 
 
 proceedings 4 1 
 
 JUDICIAL and executive officers of the United States and of the several States 
 
 shall be bound by an oath to support the Constitution 6 .. 3 
 
 JUDICIARY. The Supreme Court shall have original jurisdiction in all cases 
 affecting ambassadors, other public ministers and consuls, and those in 
 
 which a State may be a party 3 2 2 
 
 The Supreme Court shall have appellate jurisdiction both as to law and fact, 
 
 with such exceptions and regulations as Congress may make 3 2 2 
 
 JUNCTION of two or more States or parts of States without the consent of the 
 
 legislatures and of Congress. No State shall be formed by the 4 3 1 
 
 JURISDICTION of another State. No new State shall be formed or erected 
 
 within the 4 3 1 
 
 JURISDICTION, both as to law and fact, with such exceptions and under such 
 regulations as Congress may make. The Supreme Court shall have appel- 
 late - 3 2 2 
 
 JURISDICTION. In all cases affecting ambassadors, and other pubUc ministers 
 and consuls, and in cases where a State is a party, the Supreme Court shall 
 
 have original 3 2 2 
 
 JURY. The trial of all crimes, except in cases of impeachment, shall be by 3 2 3 
 
 In all criminal prosecutions the accused shall have a speedy and public trial 
 
 by. [Amendments] 6 
 
 All suits at common law, where the value exceeds twenty dollars, shall be 
 
 tried by. [Amendments] 7 
 
 Where a fact has been tried by a jury it shall not be reexamined except by 
 
 the rules of the common law. [Amendments] 7 
 
 JUST COMPENSATION. Private property shall not be taken for public use 
 
 without. [Amendments] 5 
 
 JUSTICE, insure domestic tranquillity, etc. To establish. [Preamble.] 
 
 L. 
 
 LABOR, in one State, escaping into another State, shall be delivered up to the 
 
 party to whom such service or labor may be due. Fugitives from service or. 4 2 3 
 
 LAND and naval forces. Congress shall make rules for the government and regu- 
 lation of the 1 8 14 
 
 LAW and fact, with exceptions and under regulations to be made by Congress. 
 
 The Supreme Court shall have appellate jurisdiction as to 3 2 2 
 
 LAW of the land. The Constitution, the laws made in pursuance thereof, and 
 
 treaties of the United States shall be the supreme 6 .. 2 
 
 The judges in every State shall be bound thereby 6 .. 2 
 
 LAW of nations. Congress shall provide for punishing offenses against the 1 8 10 
 
 LAWS. Congress shall have power to provide for calling forth the militia to sup- 
 press insurrection, repel invasions, and to execute the 1 8 15 
 
 161 
 
Analytical Index. Pt.l. THE CONSTITUTION. 
 
 i,t tlrn. Clause. 
 
 LAWS AND TREATIES of the United States. The judicial power shall extend 
 
 to all cases in law and equity arising under the Constitution or the 3 2 1 
 
 LAWS necessary to carry into execution tne powers vested in the Government, 
 or in any department or officer of the United States. Congress shall have 
 power to make all 1 8 18 
 
 LEGAL TENDER in payment of debts. No State shall make anything but gold 
 
 and silver coin a 1 10 1 
 
 LEGISLATION in all cases over such district aa may become the seat of govern- 
 ment. Congress shall have power to exercise exclusive 1 8 17 
 
 Over all places purchased by consent of the legislatures in the different States 
 for the erection of forts, magazines, arsenals, dockyards, and other needful 
 buildings. Congress shall have power to exercise exclusive 1 8 17 
 
 LEGISLATION. Congress shall have power to make all laws necessary and 
 proper for carrjdng into execution all the powers vested by the Constitu- 
 tion in the Government of the United States, or in any department or officer 
 
 thereof 1 8 18 
 
 Congress shall ha\-e power to enforce the thirteenth amendment by appro- 
 priate. [Amendments] 13 2 
 
 Congress shall have power to enforce the fourteenth amendment by appro- 
 priate. [Amendments] 14 5 
 
 Congress shall have power to enforce the fifteenth amendment by appropriate. 
 
 [Amendments] 15 2 
 
 LEGISLATIVE powers herein granted shall be vested in a Congress. All 1 1 
 
 LEGISLATURE OR THE EXECUTIVE (when the legislature can not be con- 
 vened). The United States shall protect each State against invasion; and 
 against domestic \iolence on the application of the 4 4 
 
 LEGISLATURES of two-thirds of the States, Congress shall call a convention for 
 
 proposing amendments to the Constitution. On the application of the 5 
 
 LETTERS of marque and reprisal. Congress shall have power to grant 1 8 11 
 
 No State shall grant 1 10 1 
 
 LIBERTY to ourselves and our posterity, etc. To secure the blessings of. [Pre- 
 amble.] 
 
 LIFE, LIBERTY, AND PROPERTY without due process of law. No person 
 shall be compelled in any criminal case to be a witness against himself, 
 
 nor be deprived of. [Amendments] 5 
 
 No State shall abridge the privileges or immunities of citizens of the United 
 
 States, nor deprive any person of. [Amendments] 14 1 
 
 LIFE or Umb for the same offense. No person shall be twice put in jeopardy of. 
 
 [Amendments] 5 
 
 LOSS or emancipation of any slave shall be held illegal and void. Claims for the. 
 
 [Amendments] 14 4 
 
 M. 
 
 MAGAZINES, arsenals, dockyards, and other needful buildings. Congress shall 
 
 have exclusive authority over all places purchased for the erection of 1 
 
 MAJORITY of each House shall constitute a quorum to do business. A 1 
 
 But a smaller number may adjourn from day to day and may be authorized 
 to compel the attendance of absent members 1 
 
 MAJORITY of all the States shall be necessary to a choice 1 
 
 When the choice of a President shall devolve on the House of Representa- 
 tives, a quorum shall consist of a member or members from two-thirds of 
 the States; but a. [Amendments] 12 
 
 MAJORITY. When the choice of a Vice President shall devolve on the Senate, 
 a quorum shall consist of two-thirds of the whole number of Senators, and a 
 majority of the whole number shall be necessary to a choice. [Amend- 
 ments] 12 
 
 162 
 
 8 
 
 17 
 
 5 
 
 1 
 
 5 
 
 1 
 
 5 
 
 1 
 
Pt.l. THE CONSTITUTION. Analytical Index. 
 
 Arti- Sec- 
 cle. tion. 
 
 Clause. 
 
 MANUFACTURE of intoxicating liquors for beverage purposes prohibited. 
 
 [Amendments] 18 1 
 
 MARITIME JURISDICTION. The judicial power shall extend to all cases of 
 
 admiralty and 3 2 1 
 
 MARQUE and reprisal. Congress shall have power to grant letters of 1 8 11 
 
 No State shall grant any letters of 1 10 1 
 
 MARYLAND entitled to six Representatives in the First Congress 1 2 3 
 
 MASSACHUSETTS entitled to eight Representatives in the First Congress 1 2 3 
 
 MEASURES. Congress shall fix the standard of weights and 1 8 5 
 
 MEETING OF CONGRESS. The Congress shall assemble at least once in 
 every year, and such meeting shall be on the first Monday in December, 
 
 unless they shall by law appoint a different day 14 2 
 
 MEMBERS of Congress and of State legislatures shall be bound by oath or affirma- 
 tion to support the Constitution 6 . . 3 
 
 MILITIA to execute the laws, suppress insurrections, and repel invasions. Con- 
 gress shall provide for calling forth the 1 8 15 
 
 Congress shall provide for organizing, arming, and disciplining the 1 8 16 
 
 Congress shall provide for governing such part of them as may be employed 
 
 by the United States 1 8 16 
 
 Reserving to the States the appointment of the officers and the right to train 
 
 the militia according to the discipline prescribed by Congress 1 8 16 
 
 A well-regulated militia being necessary to the security of a free State, the 
 right of the people to keep and bear arms shall not be infringed . [Amend- 
 ments] 2 
 
 MISDEMEANORS. The President, Vice President, and all civil officers shall 
 be removed on impeachment for and conviction of treason, bribery, or 
 
 other high crimes and 2 4 
 
 MONEY on the credit of the United States. Congress shall ha^'e power to borrow. 18 2 
 
 Regulate the value thereof and of foreign coin. Congress shall have power to 
 
 coin 18 5 
 
 Shall be drawn from the Treasury but in consequence of appropriations made 
 
 bylaw. No 19 7 
 
 Shall be published from time to time. A regular statement and account of 
 
 receipts and expenditures of public 1 9 7 
 
 For raising and supporting armies. No appropriation of money shall be for 
 a longer term than two years 1 8 12 
 
 N. 
 
 NATIONS. Congress shall have power to regulate commerce with foreign 18 3 
 
 Congress shall provide for punishing offenses against the law of 1 8 10 
 
 NATURAL-BORN CITIZEN, or a citizen at the adoption of the Constitution, 
 
 shall be eligible to the office of President. No person except a 2 14 
 
 NATURALIZATION. Congress shall have power to establish a uniform rule of. 18 4 
 NATURALIZED in the United States, and subject to their jurisdiction, shall be 
 citizens of the United States and of the State in which they reside. All 
 
 persons born or. [Amendments] 14 1 
 
 NAVAL FORCES. Congress shall make rules and regulations for the govern- 
 ment and regulation of the land and 1 8 14 
 
 NAVY. Congress shall have power to provide and maintain a 1 8 13 
 
 NEW HAMPSIII RE entitled to three Representatives in the First Congress 1 2 3 
 
 NEW JERSEY entitled to four Representatives in the First Congress 1 2 3 
 
 NEW STATES may be admitted by Congress into this Union 4 3 1 
 
 But no new State shall be formed within the jurisdiction of another State 4 3 1 
 
 Nor shall any State be formed by the junction of two or more States, or parts 
 
 of States, without the consent of the legislatures and of Congress 4 3 1 
 
 NEW YORK entitled to six Representatives in the First Congress 1 2 3 
 
 163 
 
Analytical Index. Pt. 1. THE CONSTITUTION. 
 
 Arti- Sec- clause 
 cle. tion. *^^^^- 
 
 NOBILITY shall be graiittnl by the United States. No title of 1 9 8 
 
 No State shall grant any title of 1 10 1 
 
 NOMINATIONS FOR OFFICE by the President. The President diall nomi- 
 nate, and, by and ^nth the advice and consent of the Senate, shall appoint 
 
 ambassadors and other public officers 2 2 2 
 
 He may grant commissions to fill vacancies that happen in the recess of the 
 Senate, ■which shall expire at the end of their next session 2 2 3 
 
 NORTH CAROLINA entitled to five Representatives in the First Congress 1 2 3 
 
 NUMBER OF ELECTORS for President and Vice President in each State shall 
 be equal to the number of Senators and Representatives to which such 
 State may be entitled in Congress 2 1 2 
 
 O. 
 
 OATH OF OFFICE of the President of the United States. Form of the 2 1 7 
 
 OATH OR AFFIRMATION. No warrants shall be issued but upon probable 
 
 cause, supported by. [Amendments] 4 
 
 OATH OR AFFIRMATION to support the Constitution. Senators and Repre- 
 sentatives, members of State legislatures, executive and judicial officers 
 
 of the United States and of the several States, shall be bound by 6 . . 3 
 
 But no religious test shall ever be required as a qualification for office 6 .. 3 
 
 The Senators when sitting to try impeachment shall be on 1 3 6 
 
 OBJECTIONS. If he shall not approve it, the President shall return the bill to 
 
 the House in which it originated with his 1 7 2 
 
 OBLIGATION OF CONTRACTS. No State shall pass any ex post facto law, or 
 
 law impairing the 1 10 1 
 
 OBLIGATIONS incurred in aid of insurrection or rebellion against the United 
 
 States to be held illegal and void. All debts or. [Amendments] 14 4 
 
 OFFENSE. No person shall be twice put in jeopardy of life or limb for the same. 
 
 [Amendments] 5 
 
 OFFENSES against the law of nations. Congress shall provide for punishing. . 1 8 10 
 
 OFFENSES against the United States, except in cases of impeachment. The 
 
 President may grant reprieves or pardons for 2 2 1 
 
 OFFICE under the United States. No person shall be a member of either House 
 
 while holding any ci\il 1 6 2 
 
 No Senator or Representative shall be appointed to any office under the 
 United States which shall have been created, or its emoluments increased, 
 
 during the term for which he is elected 1 6 2 
 
 Or title of any kind from any king, prince, or foreign State, without the con- 
 sent of Congress. No person holding any office under the United States 
 shall accept of any present, emolument 1 9 8 
 
 OFFICE of President, in case of his removal, death, resignation, or inability, 
 
 shall devolve on the Vice President. The powers and duties of the 2 15 
 
 OFFICE during the term of four years. The President and Vice President shall 
 
 hold 2 11 
 
 Of trust or profit under the United States shall be an elector for President 
 and Vice President. No person holding an 2 12 
 
 OFFICE, civil or military imder the United States, or any State, who had taken 
 an oath as a legislative, executive, or judicial officer of the United States, 
 or of any State, and afterwards engaged in insurrection or rebellion. No 
 person shall be a Senator, Representative, or Presidential elector, or hold 
 any. [Amendments] 14 3 
 
 OFFICERS in the President alone, in the courts of law, or in the heads of Depart- 
 ments. Congress may vest the appointment of inferior 2 2 2 
 
 OFFICERS of the United States shall be removed on impeachment for and con- 
 \iction of treason, bribery, or other high crimes and misdemeanors. The 
 President, Vice-President, and all civil 2 4 
 
 164 
 
Pt.l. THE CONSTITUTION. Analytical Index. 
 
 Arti- Sec- pi„,,,_ 
 cle. tion. ^'a^se. 
 
 OFFICERS. The House of Representatives shall choose their Speaker and 
 
 other 12 5 
 
 The Senate, in the absence of the Vice-President, shall choose a President 
 
 pro tempore, and also their other 1 3 5 
 
 OFFICES becoming vacant in the recess of the Senate may be filled by the 
 
 President, the commissions to expire at the end of the next session 2 2 3 
 
 ONE-FIFTH of the members present, be entered on the journal of each House. 
 
 The yeas and nays shall, at the desire of 1 5 3 
 
 OPINION of the principal officers in each of the Executive Departments on any 
 
 subject relating to their duties. The President may require the written. .22 1 
 
 ORDER, resolution, or vote (except on a question of adjournment), requiring 
 
 the concurrence of the two Houses, shall be presented to the President. 
 
 Every 17 3 
 
 ORIGINAL JURISDICTION in all cases affecting ambassadors, other public 
 
 ministers and consuls, and in which a State may be a party. The Supreme 
 
 Court shall have 3 2 2 
 
 OVERT ACT, or on confession in open court. Conviction of treason shall be on 
 
 the testimony of two witnesses to the 3 3 1 
 
 P. 
 
 PARDONS, except in cases of impeachment. The President may grant reprieves 
 
 and 2 2 1 
 
 PATENT RIGHTS to inventors. Congress may pass laws for securing 1 8 8 
 
 PEACE. Members of Congress shall not be privileged from arrest for treason, 
 
 felony, and breach of the 1 6 1 
 
 No State shall, without the consent of Congress, keep troops or ships of war 
 
 in time of 1 10 3 
 
 No soldier shall be quartered in any house without the consent of the owner 
 in time of. [Amendments] 3 
 
 PENSIONS AND BOUNTIES, shall not be questioned. The validity of the 
 public debt incurred in suppressing insurrection and rebellion against the 
 United States, including the debt for. [Amendments] 14 4 
 
 PENNSYLVANIA entitled to eight Representatives in the first Congress 1 2 
 
 PEOPLE peaceably to assemble and petition for redress of giievances shall not 
 
 be abridged by Congress. The right of the. [Amendments] 1 
 
 To keep and bear arms shall not be infringed. A well-regulated militia being 
 
 necessary to the security of a free State, the right of the. [Amendments] ... 2 
 To be secure in their persons, houses, papers, and effects against unreason- 
 able searches and seizures shall not be violated. The right of the. [Amend- 
 ments] 4 
 
 The enumeration of certain rights in the Constitution shall not be held to 
 
 deny or disparage others retained by the. [Amendments] 9 
 
 Powers not delegated to the United States, nor prohibited to the States, are 
 reserved to the States or to the. [Amendments] 10 
 
 PERFECT UNION, ETC. To establish a more. [Preamble.] 
 
 PERSONS, HOUSES, PAPERS, and effects against unreasonable searches and 
 
 seizures. The people shall be secure in their. [Amendments] 4 
 
 PERSONS as any State may think proper to admit, shall not be prohibited prior 
 
 to 1808. The migration or importation of such 19 1 
 
 But a tax or duty of ten dollars shall be imposed on the importation of each 
 of such 19 1 
 
 PETITION for the redress of grievances. Congress shall make no law abridging 
 
 the right of the people peaceably to assemble and to. [Amendments] 1 
 
 PIRACIES AND FELONIES committed on the high seas. Congress shall 
 
 define and punish 1 8 10 
 
 165 
 
Analytical Index. Pi. 1. THE CONSTITUTION. 
 
 Arti- Sec- /^i„„„ 
 cle. tion. Clause. 
 
 PLACE than that in which the tAvo Houses shall be sitting. Neither House dur- 
 ing the session shall, without the consent of the other, adjourn for more 
 
 than three days, nor to any other 1 5 4 
 
 PLACES OF CHOOSING SENATORS. Congress may by law make or alter 
 regulations for the election of Senators and Representatives, except as to 
 
 the 14 1 
 
 PORTS of one State over those of another. Preference shall not be given by any 
 
 regulation of commerce or revenue to the 1 9 6 
 
 PORTS. Vessels clearing from the ports of one State shall not pay duties in 
 
 another 19 6 
 
 POST-OFFICES AND POST-ROADS. Congress shall establish 18 7 
 
 POWERS herein granted shall be vested in Congress. All legislative 1 1 
 
 POWIERS vested by the Constitution in the Government or in any Department 
 or officer of the United States. Congress shall make all laws necessary to 
 
 carry into execution the .- 1 8 18 
 
 POWERS and duties of the office shall devolve on the Vice-President on the 
 
 removal, death, resignation, or inability of the President. The 2 1 5 
 
 POWERS not delegated to the United States nor prohibited to the States are 
 
 reserv^ed to the States and to the people. [Amendments] 10 
 
 The enumeration of certain rights in this Constitution shall not be held to 
 
 deny or disjjarage others retained by the people. [Amendments] 9 
 
 PREFERENCE, by any regulation of commerce or revenue, shall not be given to 
 
 the ports of one State over those of another 1 9 6 
 
 PREJUDICE any claims of the United States or of any particular State respecting 
 the territory or property of the United States. Nothing in this Constitution 
 
 shall 4 3 2 
 
 PRESENT, emolument, office, or title of any kind whatever from any king, 
 prince, or foreign State. No person holding any office under the United 
 
 States shall, without the consent of Congress, accept any 19 8 
 
 PRESENTMENT or indictment of a grand jur>% except in cases arising in the 
 land or naval forces or in the militia when in actual service. No person 
 shall be held to answer for a capital or otherwise infamous crime unless on a. 
 
 [Amendments] 5 
 
 PRESIDENT OF THE UNITED STATES. The Senate shall choose a Presi- 
 dent pro tempore when the Vice-President shall exercise the office of 1 3 5 
 
 The Chief Justice shall preside upon the trial of the 13 6 
 
 Shall approve and sign all bills passed by Congress before they shall become 
 
 laws j. 7 2 
 
 Shall return to the House in which it originated, with his objections, any bill 
 
 which he shall not approve 1 7 2 
 
 If not returned within ten days (Sundays excepted) it shall become a law, 
 
 unless Congress shall adjourn before the expiration of that time 17 2 
 
 Every order, resolution, or vote which requires the concurrence of both 
 
 Houses, except on a question of adjournment, shall be presented to the 1 7 3 
 
 If disapproved by him, shall be returned and proceeded on as in the case of a 
 
 bill 1 7 3 
 
 The executive power shall be vested in a 2 1 1 
 
 He shall hold his office during the term of four years 2 1 1 
 
 In case of the removal of the President from office, or of his death, resignation, 
 or inability to discharge the duties of his office, the Vice-President shall 
 
 perform the duties of 2 1 5 
 
 Congress may declare, by law, in the case of the removal, death, resignation, 
 
 or inability of the President, what officer shall act as 2 1 5 
 
 The President shall receive a compensation which shall not be increased nor 
 diminished during his term, nor shall he receive any other emolument 
 from the United States 2 16 
 
 166 
 
Pt.l. THE CONSTITUTION. Analytical Index. 
 
 Arti- Sec- r..^^^ 
 cle. tion. ^'^use. 
 
 PRESIDENT OF THE UNITED STATES— Continued. 
 
 Before he enters upon the execution of hia office he shall take an oath of 
 office 2 1 7 
 
 Shall be Commander in Chief of the Army and Navy, and of the militia of the 
 States when called into actual service 2 2 1 
 
 He may require the opinion, in vsTiting, of the principal officer in each of the 
 
 Executive Departments 2 2 1 
 
 He may grant reprieves or pardons for offenses, except in cases of impeach- 
 ment 2 2 1 
 
 He may make treaties, by and vsdth the advice and consent of the Senate, 
 two-thirds of the Senators present concurring 2 2 2 
 
 He may appoint, by and with the advice and consent of the Senate, ambassa- 
 dors, other public ministers and consuls, judges of the Supreme Court, and 
 all other officers whose appointments may be authorized by law and not 
 herein provided for 2 2 2 
 
 Congress may vest the appointment of inferior officers in the 2 2 2 
 
 He may fill up all vacancies that may happen in the recess of the Senate by 
 
 commissions which shall expire at the end of their next session 2 2 3 
 
 He shall give information to Congress of the state of the Union, and recom- 
 mend measures 2 3 
 
 On extraordinary occasions he may convene both Houses or either House of 
 
 Congress 2 3 
 
 In case of disagreement between the two Houses as to the time of adjoiu"n- 
 ment, he may adjourn them to such time as he may think proper 2 3 
 
 He shall receive ambassadors and other public ministers 2 3 
 
 He shall take care that the laws be faithfully executed 2 3 
 
 He shall commission all the officers of the United States 2 3 
 
 Shall be removed from office on impeachment for, and conviction of, treason, 
 bribery, or other high crimes and misdemeanors 2 4 
 
 No person except a natural-born citizen or a citizen of the United States at the 
 adoption of the Constitution shall be eligible to the office of 2 1 4 
 
 No person who shall not ha^-e attained the age of thirty-five years and been 
 fourteen years a citizen of the United States shall be eligible to the office of . . 2 1 4 
 
 PRESIDENT AND VICE-PRESIDENT. MANNER OF CHOOSING. Each 
 State, by its legislature, shall appoint a number of electors equal to the 
 whole number of Senators and Representatives to which the State may be 
 entitled in the Congress 2 1 2 
 
 No Senator or Representative or person holding an office of trust or profit 
 under the United States shall be an elector 2 1 2 
 
 Congress may determine the time of choosing the electors and the day on 
 which they shall give their votes, which day shall be the same throughout 
 the United States 2 13 
 
 The electors shall meet in their respective States and vote by ballot for Presi- 
 dent and Vice-President, one of whom, at least, shall not be an inhabitant 
 of the same State with themselves. [Amendments] 12 
 
 They shall name in distinct ballots the person voted for as President and the 
 person voted for as Vice-President. [Amendments] 12 
 
 They shall make distinct lists of the persons voted for as President and as 
 Vice-President, which they shall sign and certify and transmit sealed to 
 the President of the Senate at the seat of government. [Amendments].. 12 
 
 The President of the Senate shall, in the presence of the Senate and House of 
 Representatives, open all the certificates, and the votes shall then be 
 counted. [Amendments] 12 
 
 The person ha\dng the greatest number of votes shall be the President, if 
 such numl)er be a majority of the whole number of electors appointed. 
 [Amendments] 12 
 
 167 
 
Analytical Index. Ft. l. THE CONSTITUTION. 
 
 Arti- Sec- oin..^^ 
 cle. tion. ^^"^«- 
 
 PRESIDENT AND VICE PRESIDENT. MANNER OF CHOOSING— Con. 
 
 If no person have such majority, tlien from the persons having the highest 
 
 numbers, not exceeding three, on the list of those voted for aa President, 
 
 the House of Representatives shall choose immediately, by ballot, the 
 
 President. [Amendments] 12 
 
 In choosing the President, the votes shall be taken by States, the representa- 
 tion from each State having one vote. [Amendments] 12 
 
 A quorum for this purpose shall consist of a member or members from two- 
 thirds of the States, and a majority of all the States shall be necessary to a 
 
 choice. [Amendments] 12 
 
 But if no choice shall be made before the 4th of March next following, then 
 the Vice-President shall act as President, as in the case of the death ordie- 
 
 abiUty of the President. [Amendments] 12 
 
 PRESIDENT OF THE SENATE, but shall have no vote unless the Senate be 
 
 equally di\-ided. The Vice-President shall be 13 4 
 
 PRESIDENT PRO TEMPORE. In the absence of the Vice-President the 
 
 Senate shall choose a 1 3 5 
 
 When the Vice-President shall exercise the office oi President of the United 
 
 States, the Senate shall choose a 1 3 5 
 
 PRESS. Congress shall pass no law abridging the freedom of speech or of the. 
 
 [Amendments] 1 
 
 PREVIOUS CONDITION OF SERVITUDE. The right of citizens of the 
 United States to vote shall not be denied or abridged by the United States, 
 
 or by any State, on account of race, color, or. [Amendments] 15 1 
 
 PRIVATE PROPERTY shall not be taken for public use without just compen- 
 sation. [Amendments] 5 
 
 PRIVILEGE. Senators and Representatives shall, in all cases except treason, 
 felony, and breach of the peace, be privileged from arrest during their 
 attendance at the session of their respective Houses, and in going to and 
 
 returning from the same 1 6 1 
 
 They shall not be questioned for any speech or debate in either House in any 
 
 other place 16 1 
 
 PRIVILEGES AND IMMUNITIES OF CITIZENS OF THE UNITED 
 STATES. The citizens of each State shall be entitled to all the privileges 
 
 and immunities of the citizens of the several States 4 2 1 
 
 No soldier shall be quartered in any house without the consent of the owner 
 
 in time of peace. [Amendments] 3 
 
 No person shall be twice put in jeopardy of life or Umb for the same offense. 
 
 [Amendments] 5 
 
 All persons born or naturalized in the United States, and subject to the juris- 
 diction thereof, are citizens of the United States and of the State in which 
 
 they reside. [Amendments] 14 1 
 
 No State shall make or enforce any law which shall abridge the. [Amend- 
 ments] 14 1 
 
 No State shall deprive any person of life, liberty, or property without due 
 
 process of law. [Amendments] 14 1 
 
 Nor deny to any person within its jurisdiction the equal protection of its laws. 
 
 [Amendments] 14 1 
 
 PRIZES captured on land or water. Congress shall make rules concerning 1 8 11 
 
 PROBABLE CAUSE. The right of the people to be secure in their persons, 
 houses, papers, and effects against unreasonable searches and seizures shall 
 not be violated, and no warrant shall issue for such but upon. [Amend- 
 ments] 4 
 
 PROCESS OF LAW. No person shall be compelled in any criminal case to be 
 a witness against himself , nor be deprived of life, liberty, or property with- 
 out due. [Amendments] 5 
 
 168 
 
Pt. 1. THE CONSTITUTION. Analytical Index. 
 
 , Artl- Sec- (.,„„„„ 
 
 cle. tion. ^^ause. 
 
 PROCESS OF LAW. No State shall deprive any person of life, liberty, or 
 
 property without due. [Amendments] 14 1 
 
 PROCESS for obtaining witnesses in his favor. In all criminal prosecutions the 
 
 accused shall have. [Amendments] 6 
 
 PROGRESS of science and useful arts. Congress shall have power to promote 
 
 the 18 8 
 
 PROHIBITION of intoxicating liquors for beverage purposes. [Amendments]. 18 1 
 
 PROPERTY of the United States. Congress may dispose of and make all needful 
 
 rules and regulations respecting the territory or 4 3 2 
 
 PROPERTY without due process of law. No person shall be compelled in any 
 criminal case to be a witness against himself; nor shall he be deprived of 
 
 his life, liberty, or. [Amendments] 5 
 
 No State shall abridge the privileges or immunities of citizens of the United 
 
 States, nor deprive any person of his life, liberty, or. [Amendments] .... 14 1 
 
 PROSECUTIONS. The accused shall have a speedy and public trial in all 
 
 criminal. [Amendments] 6 
 
 He shall be tried by a jury in the State or district where the crime was com- 
 mitted. [Amendments] 6 
 
 He shall be informed of the nature and cause of the accusation. [Amend- 
 ments] 6 
 
 He shall be confronted with the witnesses against him. [Amendments] 6 
 
 He shall have compulsory process for obtaining witnesses. [Amendments].. 6 
 He shall have counsel for his defense. [Amendments] 6 
 
 PROTECTION of the laws. No State shall deny to any person within its juris- 
 diction the equal. [Amendments] 14 1 
 
 PUBLIC DEBT of the United States incurred in suppressing insurrection or 
 
 rebellion shall not be questioned. The validity of the. [Amendments]. 14 4 
 
 PUBLIC SAFETY may require it. The writ of habeas corpus shall not be sus- 
 pended, unless when in cases of rebellion or invasion the 19 2 
 
 PUBLIC TRIAL by jury. In all criminal prosecutions the accused shall have 
 
 a speedy and. [Amendments] 6 
 
 PUBLIC USE. Private property shall not be taken for, without just compen- 
 sation. [Amendments] 5 
 
 PUNISHMENT according to law. Judgment in cases of impeachment shall not 
 extend further than to removal from, and disqualification for, office; but 
 the party convicted shall nevertheless be liable and subject to indictment, 
 trial, judgment, and 1 3 7 
 
 PUNISHMENTS inflicted. Excessive bail shall not be required nor excessive 
 
 fines imposed nor cruel and unusual. [Amendments] 8 
 
 Q. 
 
 QUALIFICATION FOR OFFICE. No religious test shall ever be required 
 
 as a 6 . . 3 
 
 QUALIFICATIONS of electors of Members of the Senate shall be the same aa 
 electors for the most numerous branch of the State legislature. The seven- 
 teenth amendment. [Amendments] 17 
 
 QUALIFICATIONS of electors of Members of the House of Representatives 
 shall be the same as electors for the most numerous branch of the State 
 legislature 1 2 1 
 
 QUALIFICATIONS of Members of the House of Representatives. They shall 
 be 25 years of age, 7 years a citizen of the United States, and an inhabitant 
 of the State in which chosen 1 2 2 
 
 QUALIFICATIONS of Senators. They shall be 30 years of age, 9 years a citizen 
 
 of the United States, and an inhabitant of the State in which chosen. .13 3 
 
 Of its own Members. Each House shall be the judge of the election, returns, 
 and 15 1 
 
 169 
 
Analytical Index. Pt. 1. THE CONSTITUTION. 
 
 , Arti- Sea 
 
 cle. tion. Clause. 
 
 QUALIFICATIONS of the President. No person except a natural-born citizen, 
 or a citizen of the United States at the time of the adoption of the Consti- 
 tution, shall be eligible to the office of President 2 
 
 Neither shall any person be eligible to the office of President who shall not 
 have attained the age of 35 years, and been 14 years a resident within the 
 
 United States 2 
 
 Of the Vice President. No person constitutionally ineligible to the office 
 of President shall be eligible to that of Vice President. [Amendments] 12 
 
 QUARTERED in any house without the consent of the owner in time of peace. 
 
 No soldier shall be. [Amendments] 3 
 
 QUORUM to do business. A majority of each House shall constitute a 1 
 
 But a smaller number than a quorum may adjourn from day to day, and may 
 
 be authorized to compel the attendance of absent Members 1 
 
 Of the House of Representatives for choosing a President shall consist of a 
 Member or Members from two-thirds of the States, and a majority of all 
 
 the States shall be necessary to a choice. [Amendments] 12 
 
 QUORUM to elect a Vice President by the Senate. Two- thirds of the whole 
 
 number of Senators shall be a. [Amendments] 12 
 
 A majority of the whole number shall be necessary to a choice. [Amend- 
 ments] 12 
 
 R. 
 
 RACE, color, or previous condition of servitude. The right of citizens of the 
 United States to vote shall not be denied or abridged by the United 
 States or by any State on account of. [Amendments] 15 
 
 RATIFICATION of amendments to the Constitution shall be by the legislatures 
 of three-fourths of the several States or by conventions in three-fourths of 
 
 the States, accordingly as Congress may propose 5 
 
 Of the conventions of nine States shall be sufficient to establish the Con- 
 stitution between the States so ratifying the same 7 
 
 RATIO of representation until the first enumeration under the Constitution 
 
 shall be made not to exceed one for every thirty thousand 1 
 
 RATIO of representation shall be apportioned among the several States according 
 to their respective numbers, counting the whole number of persons in each 
 State, excluding Indians not taxed. [Amendments] 14 
 
 RATIO. But when the right to vote for presidential electors or Members of Con- 
 gress, or the legislative, executive, and judicial officers of the State, except 
 for engaging in rebellion or other crime, shall be denied or abridged by a 
 State, the basis of representation shall be reduced therein in the proportion 
 of such denial or abridgment of the right to vote. [Amendments] 14 
 
 REBELLION against the United States. Persons who, while holding certain 
 Federal and State offices, took an oath to support tlie Constitution, after- 
 wards engaged in insurrection or rebellion, disabled from holding office 
 
 under the United States. [Amendments.] 14 
 
 But Congress may by a vote of two-thirds of each House remove such disa- 
 bility. [Amendments] 14 
 
 REBELLION against the United States. Debts incurred for pensions and boun- 
 ties for services in suppressing the rebellion shall not be questioned. 
 
 [Amendments] 14 
 
 All debts and obligations incurred in aid of the rebellion, and all claims for 
 the loss or emancipation of slaves, declared and held to be illegal and void. 
 [Amendments] 14 
 
 REBELLION or invasion. The writ of habeas corpus shall not be suspended 
 
 except when the public safety may require it in cases of 1 
 
 RECEIPTS and expenditures of all public money shall be published from time 
 
 to time. A regular statement of 1 
 
 170 
 
Pt.l. THE CONSTITUTION. Analytical Index , 
 
 Arti- Sec- p,„,,,„ 
 cle. tion. ^'^'^se. 
 
 RECESS OF THE SENATE. The President may grant commissions, which 
 shall expire at the end of the next session, to fill vacancies that may happen 
 
 during the 2 2 3 
 
 RECONSIDERATION of a bill returned by the President with his- objections. 
 
 Proceedings to be had upon the 1 7 2 
 
 RECORDS, and judicial proceedings of every other State. Full faith and credit 
 
 shall be given in each State to the acta 4 1 
 
 Congress shall prescribe the manner of proving such acts, records, and pro- 
 ceedings 4 1 
 
 REDRESS OF GRIEVANCES. Congress shall make no law abridging the 
 right of the people peaceably to assemble and to petition for the. [Amend- 
 ments] 1 
 
 REGULATIONS, except as to the places of choosing Senators. The time, places, 
 and manner of holding elections for Senators and Representatives shall be 
 prescribed by the legislatures of the States, but Congress may at any time 
 
 by law make or alter such 14 1 
 
 REGULATIONS of commerce or revenue. Preference to the ports of one State 
 
 over those of anotlier shall not be given by any 19 6 
 
 RELIGION or prohibiting the free exercise thereof. Congress shall make no 
 
 law respecting the establishment of. [Amendments] 1 
 
 RELIGIOUS test shall ever be required as a qualification for any oflace or public 
 
 trust under the L'nited States. No 6 .. 3 
 
 REMOVAL of the President from office, the same shall devolve on the Vice- 
 President. In case of the 2 15 
 
 REPRESENTATION. No State, without its consent, shall be deprived of its 
 
 equal suffrage in the Senate 5 
 
 REPRESENTATION and direct taxation, how apportioned among the several 
 States. [Tliis pro^i8ion is changed by the fourteenth amendment, sec- 
 tion 2] 12 3 
 
 REPRESENTATION until the first enumeration under the Constitution not to 
 
 exceed one for every thirty thousand. The ratio of 12 3 
 
 REPRESENTATION in any State. The executive thereof shall issue writs of 
 
 election to fill vacancies in the 1 2 4 
 
 REPRESENTATION among the several States shall be according to their re- 
 spective numbers, counting the whole number of persons in each State, 
 
 excluding Indians not taxed. The ratio of. [Amendments] 14 2 
 
 But where the right to vote in certain Federal and State elections is abridged 
 for any cause other than rebellion or other crime the baaia of representation 
 
 shall be reduced. [Amendments] 14 2 
 
 REPRESENTATIVES. Congress shall consist of a Senate and House of 1 1 
 
 Qualifications of electors of members of the House of 12 1 
 
 No person shall be a Representative who shall not have attained the age of 
 twenty-five years, been seven years a citizen of the United States, and an 
 
 inhabitant of the State in which he shall be chosen 12 2 
 
 And direct taxes, how apportioned among the several States. [Amended by 
 
 fourteenth amendment, section 2] 12 3 
 
 Shall choose their Speaker and other officers. The House of 12 5 
 
 Shall have the sole power of impeachment. The House of 1 2 5 
 
 Executives of the States shall issue writs of election to fill vacancies in the 
 
 House of 12 4 
 
 The times, places, and manner of choosing Representatives shall be pre- 
 scribed by the legislatures of the States 1 4 1 
 
 But Congress may at any time by law make or alter such regulations except 
 
 as to the places of choo.sing Senators 1 4 1 
 
 And Senators shall receive a compensation to be ascertained by law 1 6 1 
 
 54641 ° —22 12 171 
 
Analytical Index. Pt.l. THE CONSTITUTION. 
 
 Arti- Sec- 
 cle. lion. 
 
 Clause. 
 
 2 
 
 1 
 
 8 
 
 11 
 
 10 
 
 1 
 
 REPRESENTATIVES— Continued. 
 
 Shall iu all cases, except treason, felony, and breach of the peace, be privi- 
 leged from arrest during attendance at the session of the House, and in 
 
 going to and returning from the same 1 6 1 
 
 Shall not be questioned in any otlier place for any speech or debate. Mem- 
 bers of the House of 16 1 
 
 No member shall be appointed during his term to any civil office which shall 
 have been created, or the emoluments of which shall have been increased, 
 
 during such term 16 2 
 
 No person holding any office under the United States shall, while holding 
 
 such office, be a Member of the House of 16 2 
 
 All bills for raising revenue shall originate in the House of 17 1 
 
 No Senator or Representative shall be an elector for President or Vice-Presi- 
 dent 2 1 2 
 
 REPRESENTATIVES shall be bound by an oath or affirmation to support the 
 
 Constitution of the United States. The Senators and 6 . . 3 
 
 REPRESENTATIVES among the several States. Provisions relative to the 
 
 apportionment of. [Amendments] 11 2 
 
 REPRESENTATIVES AND SENATORS. Prescribing certain disqualifica- 
 tions for office as. [Amendments] 14 3 
 
 But Congress may, by a vote of two-thirds of each House, remove such dis- 
 qualification. [Amendments] 14 3 
 
 REPRIEVES and pardons except in cases of impeachment. The President 
 
 may grant 2 
 
 REPRISAL. Congress shall have power to grant letters of marque and 1 
 
 No State shall grant any letters of marque and 1 
 
 REPUBLICAN form of government. The United States shall guarantee to 
 
 every State in this Uniou a 4 
 
 And shall protect each of them against invasion; and on the application of 
 the legislature or of the executive (when the legislatiu-e can not be con- 
 vened), against domestic violence 4 
 
 RESERVED RIGHTS of the States and the people. The enumeration in the 
 Constitution of certain rights shall not be construed to deny or disparage 
 
 others retained by the people. [Amendments] 9 
 
 The powers not delegated to the United States by the Constitution, nor pro- 
 liibited by it to the States, are reserved to the States, respectively, or to 
 the people. [Amendments] 10 
 
 RESIGNATION, or inability of the President, the duties and powers of his 
 
 office shall devolve on the Vice-President. In case of the death 2 
 
 RESIGNATION, or inability of the President. Congress may by lau provide 
 
 for the case of the removal, death 2 
 
 RESOLUTION, or vote (except on a question of adjournment) requiring the 
 concm-rence of the two Houses shall, before it becomes a law, be presented 
 to the President. Every order 1 
 
 REVENUE shall originate in the House of Representatives. All bills for raising . 1 
 
 REVENUE. Preference shall not be given to the ports of one State over those 
 
 of another by any regulations of commerce or 1 
 
 RHODE ISLAND entitled to one Representative in the First Congress 1 
 
 RIGHT OF PETITION. Congress shall make no law abridging the right of the 
 people peaceably to assemble and to petition for the redress of grievances. 
 [Amendments] 1 
 
 RIGHT TO KEEP AND BEAR ARMS. A well-regulated militia being neces- 
 sary to the security of a free State, the right of the people to keep and bear 
 arms shall not be infringed. [Amendments] 2 
 
 RIGHTS in the Constitution shall not be construed to deny or disparage others 
 
 retained by the people. The enumeration of certain. [Amendments]... 9 
 
 172 
 
 7 
 
 3 
 
 7 
 
 1 
 
 9 
 
 6 
 
 2 
 
 3 
 
Pt. 1. THE CONSTITUTION. Analytical Index. 
 
 Arti- Sec- rio„^» 
 cle. tion. <^1^"^«- 
 
 RIGHTS not delegated to the United States nor prohibited to the States are 
 
 reserved to the States resijectively or to the people. [Amendments] 10 
 
 RULES of its proceedings. Each House may determine the 15 2 
 
 RULES AND REGULATIONS respecting the territory or other property of the 
 
 LTnited States. Congress shall dispose of and make all needful 4 3 2 
 
 RULES OF THE COMMON LAW. All suits involving over twenty dollars 
 
 shall be tried by jury according to the. [Amendments] 7 
 
 No fact tried by a jury shall be reexamined except according to the. [Amend- 
 ments] 7 
 
 S. 
 
 SALE of intoxicating liquors for beverage purposes prohibited. [Amendments]. 18 1 
 SCIENCE AND THE USEFUL ARTS by securing to authors and inventors the 
 exclusive right to their writings and discoveries. Congress shall have 
 
 power to promote the progress of 1 8 8 
 
 SEARCHES AND SEIZURES shall not be violated. The right of the people to 
 
 be secure against unreasonable. [Amendments] 4 
 
 And no warrants shall be issued but upon probable cause, on oath or affirma- 
 tion, describing the place to be searched and the person or things to be 
 
 seized. [Amendments] .* 4 
 
 SEAT OF GOVERNMENT. Congress shall exercise exclusive legislation in all 
 
 cases over such district as may become the 1 8 17 
 
 SECURITIES and cm-rent coin of the United States. Congress shall provide for 
 
 punishing the counterfeiting of the 1 8 6 
 
 SECURITY OF A FREE STATE, the right of the people to keep and bear arms 
 shall not be infringed. A well-regulated militia being necessary to the. 
 
 [Amendments] 2 
 
 SENATE AND HOUSE OF REPRESENTATIVES. The Congress of the 
 
 United States shall consist of a 1 1 
 
 SENATE OF THE UNITED STATES. The Senate shall be composed of two 
 
 Senators from each State, chosen by the legislatiu*e for six years 1 3 1 
 
 [Repealed by the seventeenth amendment] 17 . . 1 
 
 If vacancies happen during the recess of the legislature of a State, the execu- 
 tive thereof may make temporary appointments until the next meeting of 
 the legislature 1 3 2 
 
 [Repealed by the seventeenth amendment] 17 . . 1 
 
 The Vice President shall be President of the Senate, but shall have no vote 
 
 unless the Senate be equally divided 1 3 4 
 
 The Senate shall choose their other officers, and also a President pro tempore 
 in the absence of the Vice President or when he shall exercise the office of 
 President 1 3 5 
 
 The Senate shall have the sole power to trj^ all impeachments. "UTien sitting 
 
 for that purpose they shall be on oath or affirmation 1 3 6 
 
 When the President of the Ignited States is tried the Chief Justice shall 
 preside; and no person shall be convicted without the concurrence of two- 
 thirds of the members present 1 3 6 
 
 It shall be the judge of elections, returns, and qualifications of its own mem- 
 bers 15 1 
 
 A majority shall constitute a quorum to do business, but a smaller number 
 may adjoiu-n from day to day, and may be authorized to compel the attend- 
 ance of absent members 1 5 1 
 
 It may determine the rules of its proceedings, punish a member for disorderly 
 behavior, and with the concurrence of two-thirds expel a member 1 5 2 
 
 It shall keep a journal of its proceedings, and from time to time publish the 
 same, except such parts as may in their judgment require secrecy 1 5 3 
 
 173 
 
Analytical Index. I't. 1. TUE CONSTITUTION. 
 
 Artl- Sec- 
 
 cle. tion. Clause. 
 
 SENATE OF THE UNITED STATES— Continued. 
 
 It shiill not adjourn for more than three days during a session without the 
 consent of the other House 1 5 
 
 It may propose amendments to bills for raising revenue, but such bills shall 
 originate in the House of Representatives 1 7 
 
 The Senate shall advise and consent to the ratification of all treaties, provided 
 two-thirds of the memljers present concur 2 2 
 
 It shall advise and consent to the appointment of ambassadors, other public 
 ministers and consuls, judges of the Supreme Court, and all other officers 
 not herein otherwise provided for 2 2 
 
 It may be convened by the President on extraordinary occasions 2 3 
 
 No State, without its consent, shall be deprived of its equal suffrage in the 
 
 Senate 5 
 
 SENATORS shall, immediately after assembling, under their first election, be 
 divided into three classes, so that the seats of one-third shall become 
 vacant at the expiration of every second year 1 3 
 
 No person shall be a Senator who shall not be thirty years of age, nine years a 
 citizen of the United States, and an inhabitant when elected of the State 
 for which he shall be chosen 1 3 
 
 The times, places, and manner of choosing Senators may be fixed by the 
 legislatiu-e of a State, but Congress may by law make or alter such regula- 
 tions, except as to the places of choosing 1 4 
 
 If vacancies happen during the recess of the legislature of a State, the execu- 
 tive thereof may make temporary appointments until the next meeting of 
 the legislature. [Amendments] 1 
 
 [Repealed by the seventeenth amendment] 17 
 
 They shall in all cases, except treason, felony, and breach of the peace, be 
 privileged from arrest during their attendance at the session of the Senate 
 and in going to and returning from the same 1 
 
 And Representatives shall receive a compensation to be ascertained by law. . 1 
 
 Senators and Representatives shall not be questioned for any speech or debate 
 in either House in any other place 1 
 
 No Senator or Representative shall, during the time for which he was elected, 
 be appointed to any civil office under the United States which shall have 
 been created, or of which the emoluments shall have been increased, 
 dm-ing such term 1 
 
 No person holding any office under the United States shall be a member of 
 either House during his continuance in office 1 
 
 No Senator or Representative or person holding an office of trust or profit 
 under the United States shall be an elector for President and Vice President . 2 
 
 Senators and Representatives shall be bound by an oath or affirmation to 
 support the Constitution 6 
 
 No person shall be a Senator or Representative who having, as a Federal or 
 State officer, taken an oath to support the Constitution, afterwards engaged 
 in rebellion against the United States. [Amendments] 14 
 
 But Congress may, by a vote of two-thirds of each House, remove such dis- 
 ability. [Amendments] 14 
 
 SERVICE OR LABOR in one State, escaping into another State, shall be de- 
 livered up to the party to whom such service or labor may be due. Fugi- 
 tives from 4 
 
 SERVITUDE, except as a punishment for crime, whereof the party shall have 
 been duly convicted, shall exist in the United States or any place subject 
 to their jurisdiction. Neither slavery nor involuntary. [Amendments].. 13 
 SERVITUDE. The right of citizens of the United States to vote shall not be 
 denied or abridged by the United States or by any State on account of 
 race, color, or previous condition of. [Amendments] 15 
 
 174 
 
 3 
 
 2 
 
 - 
 
 2 
 
 6 
 
 1 
 
 6 
 
 1 
 
Pt.l. THE CONSTITUTION. Analytical Index. 
 
 Arti- Sec- p,„,„„ 
 cle. tion. ^'ause. 
 
 SHIPS OF WAR in time of peace, without the consent of Congrees. No State 
 
 shall keep troops or 1 10 3 
 
 SILVER COIN a tender in payment of debts. No State shall make anything 
 
 but gold and 1 10 1 
 
 SLAVE. Neither the United States nor any State shall assume or pay any debt 
 or obligation incurred in aid of insurrection or rebellion, or any claim for 
 
 the loss or emancipation of any. [Amendments] 14 4 
 
 SLAVERY nor involuntary servitude, except as a punishment for crime, whereof 
 the party shall have been dtdy convicted, shall exist in the United States, 
 
 or any places subject to their jiu-isdiction. Neither. [Amendments] 13 1 
 
 SOLDIERS shall not be quartered, in time of peace. In any house without the 
 
 consent of the owner. [Amendments] 3 
 
 SOUTH CAROLINA entitled to five Representatives in the First Congress 12 3 
 
 SPEAKER and other officers. The House of Representatives shall choose their.. 12 5 
 
 SPEECH OR OF THE PRESS. Congress shall make no law abridging the 
 
 freedom of. [Amendments] 1 
 
 SPEEDY AND PUBLIC trial by a jiu-y. In all criminal prosecutions the 
 
 accused shall have a. [Amendments] 6 
 
 STANDARD OF WEIGHTS and measiu-es. Congress shall fix the 1 8 5 
 
 STATE OF THE ITNION. The President shall, from time to time, give Con- 
 gress information of the 2 3 
 
 STATE LEGISLATURES, and all executive and judicial officers of the United 
 States, shall take an oath to support the Constitution. All members of the 
 
 several 6 .. 3 
 
 STATES. When vacancies happen in the representation from any State, the 
 executive authority shall issue writs of election to fill such vacancies. 
 
 [See seventeenth amendment] 1 2 4 
 
 Congress shall have power to regulate commerce among the several 1 8 3 
 
 No State shall enter into any treaty, alliance, or confederation 1 10 1 
 
 Shall not grant letters of marque and reprisal _ 1 10 1 
 
 Shall not coin money 1 10 1 
 
 Shall not emit bills of credit 1 10 1 
 
 Shall not make anything but gold and silver coin a tender in payment of 
 
 debts 1 10 1 
 
 Shall not pass any bill of attainder, ex post facto law, or law impairing the 
 
 obligation of contracts 1 10 1 
 
 Shall not grant any title of nobility 1 10 1 
 
 Shall not, without the consent of Congress, lay any duties on imports or 
 exports, except what may be absolutely necessary for executing its inspec- 
 tion laws 1 10 2 
 
 Shall not, without the consent of Congress, lay any duty of tonnage, keep 
 troops or ships of war in time of peace, enter into any agreement or compact 
 with another State or with a foreign power, or engage in war unless actually 
 
 invaded or in such imminent danger as will not admit of delay 1 10 3 
 
 Full faith and credit in every other State shall be given to the public acts, 
 
 records, and judicial proceedings of each State 4 1 
 
 Congress shall prescribe the manner of proving such acts, records, and pro- 
 ceedings 4 1 
 
 Citizens of each State shall be entitled to all privileges and immunities of 
 
 citizens in the several States 4 2 1 
 
 New States may be admitted by Congress into tliis Union 4 3 1 
 
 But no new State shall be formed or erected within the jurisdiction of another 
 
 State 4 3 1 
 
 Nor any State formed by the junction of two or more States or parts of States, 
 without the consent of the legislatures as well as of Congress 4 3 1 
 
 175 
 
cle. tion. C'^'^^- 
 
 Analytical Index. Pt.l. TUE CONSTITUTION. 
 
 Arti- Seo 
 
 STATES— Continued . 
 
 No State shall l)e deprived, without its consent, of its equal suffrage in the 
 
 Senate 5 
 
 Three-fourths of the legislatures of the States or conventions of three-fourths 
 of the States, as Congress shall prescribe, may ratify amendments to the 
 
 Constitution 5 
 
 The United States shall guarantee a republican form of government to every 
 
 State in the Union 4 4 
 
 They shall protect each State against invasion 4 4 
 
 And on application of the legislature, or the executive (when the legislature 
 
 can not be convened), against domestic violence 4 4 
 
 The ratification by nine States shall be sufficient to establish the Constitution 
 
 between the States so ratifying the same 7 
 
 When the choice of President shall devolve on the House of Representatives, 
 
 the vote shall be taken by States. [Amendments] 12 
 
 But in choosing the President the vote shall be taken by States, the repre- 
 sentation from each State having one vote. [Amendments] 12 
 
 A quorum for choice of President shall consist of a member or members from 
 two- thirds of the States, and a majority of all the States shall be necessary 
 
 to a choice. [Amendments] 12 
 
 Shall have concurrent power with Congress to enforce, by appropriate legisla- 
 tion, eighteenth amendment. [Amendments] 18 2 
 
 STATES or to the people. Powers not delegated to the United States, nor pro- 
 hibited to the States, are reserved to the. [Amendments] 10 
 
 SUFFRAGE in the Senate. No State shall be deprived without its consent of 
 
 its equal 5 
 
 SUFFRAGE, Woman, nineteenth amendment. [Amendments] 19 
 
 SUITS at common law, where the value in controversy shall exceed twenty 
 
 dollars, shall be tried by jury. [Amendments] 7 
 
 In law or equity against one of the States by citizens of another State or by 
 citizens of a foreign State. The judicial power of the United States shall 
 
 not extend to. [Amendments] 11 
 
 SUPREME COURT. Congress shall have power to constitute tribunals inferior 
 
 to the 18 9 
 
 SUPREME COURT, and such inferior courts as Congress may establish. The 
 
 judicial power of the United States shall be vested in one 3 1 
 
 The judges of the Supreme and inferior courts shall hold their offices during 
 
 good behavior 3 1 
 
 The compensation of the judges shall not be diminished during their con- 
 tinuance in office 3 1 
 
 SUPREME COURT shall have original jurisdiction in all cases affecting ambas- 
 sadors, other public ministers and consuls, and in which a State may be a 
 
 party. The 3 2 2 
 
 Shall have appellate jurisdiction, both as to law and fact, with such excep- 
 tions and regulations as Congress may make. The 3 2 2 
 
 SUPREME LAW of the land. This Constitution, the laws made in pursuance 
 
 thereof, and the treaties of the United States shall be the 6 . . 2 
 
 The judges in every State shall be bound thereby 6 .. 2 
 
 SUPPRESS insurrections, and repel invasions. Congress shall provide for call- 
 ing forth the militia to execute the laws 1 8 15 
 
 SUPPRESSION of insurrection or rebellion, shall not be questioned. The 
 public debt, including the debt for pensions and bounties incurred in the. 
 [Amendments] 14 4 
 
 176 
 
Pt. 1. THE CONSTITUTION. Analytical Index. 
 
 Arti- Sec- r^i^.-.^^ 
 cle. tion. Clause. 
 
 T. 
 
 TAX shall be laid unless in proportion to the census or enumeration. No capi- 
 tation or other direct. [See sixteenth amendment] 1 9 4 
 
 TAX or duty shall be laid on articles exported from any State. No 19 5 
 
 TAXES (direct) and Representatives, how apportioned among the several 
 
 States. [See fourteenth amendment, section 2] 12 3 
 
 TAXES (direct). Congress shall have power to collect taxes on incomes, from 
 whatever source derived, without apportionment among the several States, 
 and without regard to any census or enumeration. The sixteenth amend- 
 ment. [Amendments] 16 
 
 TAXES, duties, imposts, and excises. Congress shall have power to lay 18 1 
 
 They shall be uniform throughout the United States. [See sixteenth amend- 
 ment] 18 1 
 
 TEMPORARY APPOINTMENTS until the next meeting of the legislature. If 
 vacancies happen in the Senate in the recess of the legislature of a State, the 
 executive of the State shall make. [Repealed by seventeenth amendment]. 13 2 
 
 TENDER in payment of debts. No State shall make anything but gold and 
 
 silver coin a 1 10 1 
 
 TERM OF FOUR YEARS. The President and Vice-President shall hold their 
 
 offices for the 2 11 
 
 TERM for which he is elected. No Senator or Representative shall be appointed 
 to any office under the United States which shall have been created or its 
 emoluments increased during the 16 2 
 
 TERRITORY or other property of the United States. Congress shall dispose of 
 
 and make all needful rules and regulations respecting the 4 3 2 
 
 TEST as a qualification for any office or public trust shall ever be required. No 
 
 religious 6 .. 3 
 
 TESTIMONY of two witnesses to the same overt act, or on confession in open 
 
 court. No person shall be convicted of treason except on the 3 3 1 
 
 THREE-FOURTHS OF THE LEGISLATURES of the States, or conventions 
 in three-fourths of the States, as Congress shall prescribe, may ratify 
 amendment? to the Constitution 5 
 
 TIE. The Vice-President shall have no vote unless the Senate be equally 
 
 divided 13 4 
 
 TIMES, PLACES, AND MANNER of holding elections for Senators and Repre- 
 sentatives shall be prescribed in each State by the legislature thereof 14 1 
 
 But Congress may at any time by law make or alter such regulations, except 
 as to the places of choosing Senators 14 1 
 
 TITLE OF NOBILITY. The United States shall not grant any 19 8 
 
 No State shall grant any 1 10 1 
 
 TITLE of any kind, from any king, prince, or foreign State, without the consent of 
 Congress. No person holding any office under the United States shall 
 accept of any 19 8 
 
 TONNAGE without the consent of Congress. No State shall lay any duty of 1 10 3 
 
 TRANQUILLITY, provide for the common defense, etc. To insure domestic. 
 [Preamble.] 
 
 TRANSPORTATION of intoxicating liquors for beverage purposes prohibited. 
 
 [Amendments] 18 1 
 
 TREASON shall consist only in levying war against the United States, or in 
 
 adhering to their enemies, giving them aid and comfort 3 3 1 
 
 TREASON. No person shall, unless on the testimony of two witnesses to the 
 
 same overt act, or on confession in open coiu"t, be convicted of 3 3 1 
 
 Congress shall have the power to declare the punishment of 3 3 2 
 
 Shall not work corruption of blood. Attainder of 3 3 2 
 
 1T7 
 
Analytical Index. Pt. 1. THE CONSTITUTION. 
 
 Artl- Sec- ^, 
 cle. tion. ^i"^^®- 
 
 TREASON. Shall not work forfeiture, except during the life of the person 
 
 attainted. Attainder of 3 3 2 
 
 TREASON, BRIBERY, or other high crimes and misdemeanors. The Presi- 
 dent, Vice-President, and all civil officers shall be removed from office on 
 impeachment for and conviction of 2 4 
 
 TREASON, FELONY, AND BREACH OF THE PEACE. Senators and Repre- 
 sentatives shall be privileged from arrest while attending or while going 
 to or returning from the sessions of Congress, except in cases of 1 6 1 
 
 TREASURY, but in consequence of appropriations made by law. No money 
 
 shall be drawn from the 1 9 7 
 
 TREATIES. The president shall have power, with the advice and consent of 
 
 the Senate, provided two-thirds of the Senators present concur, to make 2 2 2 
 
 The judicial power shall extend to all cases arising under the Constitution, 
 
 laws, and 3 2 1 
 
 They shall be the supreme law of the land, and the judges in every State shall 
 be bound thereby 6 .. 2 
 
 TREATY, alliance, or confederation. No State shall enter into any 1 10 1 
 
 TRIAL, judgment, and punishment according to law. Judgment in cases of im- 
 peachment shall not extend further than to removal from and disqualifi- 
 cation for office; but the party convicted shall nevertheless be liable and 
 subject to indictment 13 7 
 
 TRIAL BY JURY. All crimes, except in cases of impeachment, shall be tried 
 
 by jury 3 2 3 
 
 Such trial shall be held in the State within which the crime shall have been 
 
 committed 3 2 3 
 
 But when not committed within a State, the trial shall be at such place as 
 
 Congress may by law have directed 3 2 3 
 
 In all criminal prosecutions the accused shall have a speedy and public. 
 
 [Amendments] 6 
 
 Suits at common law, when the amount exceeds twenty dollars, shall be by. 
 [Amendments] 7 
 
 TRIBUNALS inferior to the Supreme Court. Congress shall have power to con- 
 stitute 18 9 
 
 TROOPS or ships of war in time of peace without the consent of Congress. No 
 
 State shall keep 1 10 3 
 
 TRUST AND PROFIT under the United States shall be an elector for President 
 and Vice President. No Senator, Representative, or person holding any 
 office of 2 12 
 
 TWO-THIRDS of the members present. No person shall be convicted on 
 
 impeachment without the concurrence of 1 3 6 
 
 TWO-THIRDS, may expel a member. Each House, with the concurrence of . . 1 5 2 
 
 TWO-THIRDS. A bill returned by the President with his objections may be 
 
 repassed by each House by a vote of 1 7 2 
 
 TWO-THIRDS of the Senators present concur. The President shall have power, 
 by and with the advice and consent of the Senate, to make treaties, pro- 
 vided 2 2 2 
 
 TWO-THIRDS of the legislatures of the several States. Congress shall call a 
 convention for proposing amendments to the Constitution on the applica- 
 tion of 5 
 
 TWO-THIRDS of both Houses shall deem it necessary. Congress shall propose 
 
 amendments to the Constitution whenever 5 
 
 TWO-THIRDS of the States. WTien the choice of a President shall devolve on 
 the House of Representatives, a quorum shall consist of a member or 
 members from. [Amendments] 12 ' .. 
 
 178 
 
Pt.l. THE CONSTITUTION. Analytical Index. 
 
 Arti- Sec- (;.i„,,_(, 
 cle. tion. ^^^^^°' 
 
 TWO-THIRDS of the whole number of Senators. A quorum of the Senate, when 
 
 choosing a Vice President, shall consist of. [Amendments] 12 
 
 TWO-THIRDS, may remove the disabilities imposed by the third section of the 
 
 fourteenth amendment. Congress, by a vote of. [Amendments] 14 3 
 
 TWO YEARS. Appropriations for raising and supporting armies shall not be 
 
 for a longer term than 1 8 12 
 
 U. 
 
 UNION. To establish a more perfect. [Preamble.] 
 
 The President shall, from time to time, give to Congress information of the 
 
 state of the 2 3 
 
 New States may be admitted by Congress into this 4 3 1 
 
 But no new State shall be formed or erected within the jurisdiction of another 
 
 State 4 3 1 
 
 UNREASONABLE searches and seizures. The people shall be secured in their 
 
 persons, houses, papers, and effects against. [Amendments] 4 
 
 And no warrants shall be issued but upon probable cause, supported by oath 
 
 or affirmation, and particularly describing the place to be searched and the 9 
 
 persons or things to be seized . [Amendments] 4 
 
 UNUSUAL punishments inflicted. Excessive bail shall not be required, nor 
 
 excessive fines imposed, nor cruel and. [Amendments] 8 
 
 USE without just compensation. Private property shall not be taken for public. 
 
 [Amendments] 5 
 
 USEFUL arts, by securing for limited times to authors and inventors the exclusive 
 right to their writings and inventions. Congress shall have power to 
 promote the progress of science and the 1 8 8 
 
 V. 
 
 VACANCIES happening in the representation of a State. The executive thereof 
 
 shall issue writs of election to fill I 2 4 
 
 VACANCIES happening in the Senate in the recess of the legislature of a State. 
 
 How filled. [See seventeenth amendment] 13 2 
 
 VACANCIES that happened during the recess of the Senate, by granting com- 
 missions which shall expire at the end of the next session. The President 
 
 shall have power to fill 2 2 3 
 
 VALIDITY of the public debt incurred in suppressing insurrection against the 
 United States, including debt for pensions and bounties, shall not be 
 
 questioned. [Amendments] 14 4 
 
 VESSELS bound to or from the ports of one State shall not be obliged to enter, 
 
 clear, or pay duties in another State 1 9 6 
 
 VETO of a bill by the President. Proceedings of the two Houses upon the 1 7 2 
 
 VICE-PRESIDENT of the United States shall be President of the Senate 13 4 
 
 He shall have no vote unless the Senate be equally divided 13 4 
 
 The Senate shall elect a President pro tempore in the absence of the I 3 5 
 
 He shall be chosen for the term of four years 2 1 1 
 
 The number and the manner of appointing electors for President and 2 12 
 
 In case of the removal, death, resignation, or inability of the President, the 
 
 powers and duties of his office shall devolve on the 2 1 5 
 
 VICE-PRESIDENT. Congress may provide by law for the case of the removal, 
 
 death, resignation, or inability both of the President and 2 1 5 
 
 On impeachment for and conviction of treason, bribery, and other high 
 
 crimes and misdemeanors shall be removed from office. The 2 4 
 
 The manner of choosing the. The electors shall meet in their respective States 
 and vote by ballot for President and Vice-President, one of whom, at least, 
 shall not be an inhabitant of the same State with themselves. [Amend- 
 ments] 12 
 
 179 
 
Analytical Index. Pt. 1. THE CONSTITUTION. 
 
 "St So^ Clause. 
 
 VICE-PRESIDENT. The electors shall name, in distinct ballots, the person 
 
 voted for as Vice-President. [Amendments] 12 
 
 They shall make distinct lists of the persons voted for as Vice-President, 
 which lists they shall sign and certify, and send sealed to the seat of gov- 
 ernment, directed to the President of the Senate. [Amendments] 12 
 
 The President of the Senate shall, in the presence of the Senate and House of 
 Representatives, open all the certificates, and the votes shall then be 
 counted. [Amendments] 12 
 
 The person having the greatest number of votes shall be Vice-President, if 
 such number be a majority of the whole number of electors. [Amend- 
 ments] 12 
 
 If no person have a majority, then from the two highest numbers on the list 
 the Senate shall choose the Vice-President. [Amendments] 12 
 
 A quorum for this purpose shall consist of two-thirds of the whole number of 
 Senators; and a majority of the whole number shall be necessary to a choice. 
 [Amendments] 12 
 
 But if the House shall make no choice of a President before the 4th of March 
 next following, then the Vice-President shall act as President, as in the 
 case of the death or other constitutional disability of the President. 
 [Amendments] 12 
 
 No person constitutionally ineligible as President shall be eligible as. 
 
 [Amendments] 12 
 
 VIOLENCE. The United States shall guarantee to every State a republican 
 form of government, and shall protect each State against invasion and 
 
 domestic 4 4 
 
 VIRGINIA entitled to ten representatives in the First Congress 1 2 3 
 
 VOTE. Each Senator shall have one 13 1 
 
 The Vice-President, unless the Senate be equally divided, shall have no. . . 1 3 4 
 VOTE requiring the concurrence of the two Houses (except upon a question of 
 adjournment) shall be presented to the President. Every order, resolu- 
 tion, or 17 3 
 
 Shall not be denied or abridged by the United States or by any State on ac- 
 count of race, color, or previous condition of servitude. The right of citi- 
 zens of the United States to. [Amendments] 15 1 
 
 Shall not be denied or abridged on account of sex. [Amendments] 19 
 
 VOTE OF TWO-THIRDS. Each House may expel a member by a 1 5 2 
 
 A bill vetoed by the President may be repassed in each House by a 1 7 2 
 
 No person shall be convicted on an impeachment except by a 13 6 
 
 Whenever both Houses shall deem it necessary, Congress may propose amend- 
 ments to the Constitution by a 5 
 
 The President may make treaties, vnth. the advice and consent of the Sen- 
 ate, by a 2 2 2 
 
 Disabilities incurred by participation in insurrection or rebellion may be 
 relieved by Congress by a. [Amendments] 14 3 
 
 W. 
 
 WAR, grant letters of marque and reprisal, and make rules concerning captures 
 
 on land and water. Congress shall have power to declare 1 8 11 
 
 For governing the land and naval forces. Congress shall have power to make 
 
 rules and articles of 1 8 14 
 
 No State shall, ^vithout the consent of Congress, unless actually invaded, or 
 
 in such imminent danger as -ttdll not admit of delay, engage in 1 10 3 
 
 WAR against the United States, adhering to their enemies, and gi^^.ng them aid 
 
 and comfort. Treason shall consist only in levying 3 3 1 
 
 180 
 
Pt.l. THE CONSTITUTION. Analytical Index. 
 
 ^"- ^^ Clause. 
 
 cle. tion, 
 
 WARRANTS shall issue but upon probable cause, on oath or affirmation, de- 
 scribing the place to be searched and the persons or things to be seized. 
 No. [Amendments] 4 
 
 WEIGHTS AND MEASURES. Congress shall fix the standard of 1 
 
 WELFARE, and to secure the blessings of liberty, etc. To promote the general. 
 [Preamble.] 
 
 WELFARE. Congress shall have power to provide for the common defense and 
 
 general 1 
 
 WITNESS against himself. No person shall, in a criminal case, be compelled 
 
 to be a. [Amendments] 5 
 
 WITNESSES against him. In all criminal prosecutions the accused shall be 
 
 confronted with the. [Amendments] 6 
 
 WITNESSES in his favor. In all criminal prosecutions the accused shall have 
 
 compulsory process for obtaining. [Amendments] 6 
 
 WITNESSES to the same overt act, or on confession in open court. No person 
 
 shall be convicted of treason unless on the testimony of two 3 
 
 WRIT OF HABEAS CORPUS shall not be suspended, unless in case of rebellion 
 
 or invasion the public safety may require it 1 
 
 WRITS of election to fill vacancies in the representation of any State. The ex- 
 ecutive of the State shall issue 1 
 
 WRITTEN opinion of the principal officer in each of the Executive Departments 
 on any subject relating to the duties of his office. The President may re- 
 quire the 2 
 
 Y. 
 
 YEAS AND NAYS of the members of either House shall, at the desire of one- 
 fifth of those present, be entered on the journals I 
 
 The votes of both Houses upon the reconsideration of a bill returned by the 
 President with his objections shall be determined by 1 
 
 181 
 
PART 2. 
 
 THE REVISED STATUTES OF THE UNITED STATES, 
 
 183 
 
To revise and consolidate the statutes of the United States, in force 
 on tlie first day of December, anno Domini one thousand eight 
 hundred and seventy-three. 
 
 TITLE I. 
 GENERAL PROVISIONS. 
 
 CHAPTER ONE. 
 
 Sec. 
 
 1. Definitionfi. 
 
 2. County. 
 
 3. Vessel. 
 
 Sec. 
 
 4. Vehicle. 
 
 5. Company, association. 
 
 6. Seal. 
 
 Be it enacted by the Senate and House of Rej^resentatives of the United States 
 of America in Congress assembled, [Definitions.] In determining the meaning 
 of the revised statutes, or of any act or resolution of Congress passed sub- 
 sequent to February twenty-fifth, eighteen hundred and seventy-one, words 
 importing the singular number may extend and be apphed to several persons or 
 things; words importing the plural " number may include the singular; words 
 importing the mascuHne gender may be applied to females; the words "insane 
 person" and "lunatic" shall include every idiot, non compos, lunatic, and 
 insane person; the word '/person" may extend and be applied to partnersliips 
 and corporations, and the reference to any officer shall include any person 
 authorized by law to perform the duties of such office, unless the context shows 
 thixt such words were intended to be used in a more limited sense ; and a require- 
 ment of an "oath" shall be deemed compHed with by making affirmation in 
 judicial form.— (25 Feb., 1871, c. 71, s. 2, v. 16, p. 431 ; 13 July, 1866, c. 184, s. 
 44, V. 14, p. 163 ; 30 June, 1864, c. 173, ss. 82, 126, v. 13, pp. 258, 287; 20 July, 
 1868, c. 186, s. 104, v. 15, p. 166.) 
 
 Sec. 2. [County.] The word "county" includes a parish, or any other 
 equivalent subdivision of a State or Territory of the United States. — (13 July, 
 1866, c. 184, s. 9, v. 14, pp. 98, 110.) 
 
 Sec. 3. [Vessel.] Tlie word "vessel" includes every description of water- 
 craft or other artificial contrivance used, or capable of being used, as a means of 
 transportation on water.— (18 July, 1866, c. 201, s. 1, v. 14, p. 178; 29 June, 
 1870, c. 169, s. 7, V. 16, p. 170.) 
 
 Sec. 4. [Vehicle.] The word "vehicle" includes every description of 
 carriage or other artificial contrivance used, or capable of being used, as a 
 means of transportation on land. — (18 July, 1866, c. 201, s. 1, v. 14, p. 178.) 
 
 185 
 
Sec. 6. PT.2. REVISED STATUTES. General Provisions. 
 
 Sec. 5. [Company, association.] The word "company" or "association," 
 when used in reference to a corporation, shall be deemed to embrace the words 
 "successors and assigns of sucli company or association," in like manner as if 
 these last-named words, or words of similar import, were expressed. — (25 July, 
 1866, c. 242, s. 9, v. 14, p. 241.) 
 
 Sec. 6. [Seal.] In all cases where a seal is necessary by law to any commis- 
 sion, process, or other instrument provided for by the laws of Congress, it shall 
 be la^\'ful to affix the proper seal by making an impression therewith directly 
 on the paper to which such seal is necessary; which shall be as valid as if made 
 on wax or other adhesive substance. — (31 May, 1854, c. 60, s. 2, v. 10, p. 297.) 
 
 186 
 
 A 
 
CHAPTER TWO. 
 
 FORM OF STATUTES AND EFFECT OF REPEALS. 
 
 Sec. 
 
 7. Enacting clause. 
 
 8. Resolving clause. 
 
 9. No enacting words after first section. 
 10. Numbering and frame of sections. 
 
 Sec. 
 
 11. Title of appropriation acts. 
 
 12. Repeal not to revive former act. 
 
 13. Repeals not to affect Liabilities, unless, etc. 
 
 Sec. 7. [Enacting clause.] The enacting clause of all acts of Congress 
 hereafter enacted shall be in the f oUo^ving form : ' ' Be it enacted by the Senate 
 and House of Representatives of the United States of America in Congress 
 assembled."— (25 Feb., 1871, c. 71, s. 1, v. 16, p. 431.) 
 
 Sec. 8. [Resolving clause.] The resolving clause of all joint resolutions 
 shall be in the following form: "Resolved by the Senate and House of Repre- 
 sentatives of the United States of America in Congress assembled." — -(25 Feb. 
 1871, c. 71, s. 1, V. 16, p. 431.) 
 
 Sec. 9. [No enacting words after first section.] No enacting or resolving 
 words shall be used in any section of an act or resolution of Congress except in 
 the first.— (25 Feb., 1871, c. 71, s. 1, v. 16, p. 431.) 
 
 Sec. 10. [Numbering and frame of sections.] Each section shall be numbered, 
 and shall contain, as nearly as may be, a single proposition of enactment. — 
 (25 Feb., 1871, c. 71, s. 1, v. 16, p. 431.) 
 
 Sec. 11. [Title of appropriation acts.] The style and title of all acts making 
 appropriations for the support of Government shall be as follows: "An act 
 making appropriations, (here insert the object) for the year ending June 
 thirtieth (here insert the calendar year). — (26 Aug., 1842, c. 207, s. 2, v. 5, 
 V. 537 [should be ''p. 537."]) 
 
 Sec. 12. [Repeal not to revive former act.] Whenever an act is repealed, 
 which repealed a former act, such former act shall not thereby be revived, 
 imless it shall be expressly so provided. — (25 Feb., 1871, c. 71, s. 3, v. 16, p. 431.) 
 
 Sec. 13. [Repeals not to affect liabilities, unless, &c.] The repeal of any 
 statute shall not have the effect to release or extinguish any penalty, forfeiture, 
 or liabihty incm-red under such statute, unless the repealing act shall so expressly 
 provide, and such statute shall be treated as still remaming in force for the 
 purpose of sustaining any proper action or prosecution for the enforcement of 
 such penalty, forfeiture, or Uabihty.— (25 Feb., 1871, c. 71, s. 4, v. 16, p. 432; 
 United States v. Ukici, 3 Dill., 532.) 
 
 54641°— 22- 
 
 13 
 
 187 
 
TITLE IV. 
 
 PROVISIONS APPLICABLE TO ALL THE EXECUTIVE 
 
 DEPARTMENTS. 
 
 Sec. 
 
 158. Application of pro\-isions of this title. 
 
 159. "Department" defined. 
 
 160. Salaries of heads of departments. 
 
 161. Departmental regulations, property, and 
 
 records. 
 
 162. Hours of business. 
 
 163. Classification of department clerks. 
 
 164. Examinations for appointment. 
 
 165. Clerkships open to vromen. 
 
 166. Distribution of clerks, temporary" detail. 
 
 167. Salaries of persons employed in the de- 
 
 partments. 
 
 168. Temporary' clerks. 
 
 169. Appointrnent, number, and compensation 
 
 of employees authorized . 
 
 170. Extra compensation to clerks restricted. 
 
 171. Employment of extra clerks during ses- 
 
 sions of Congress. 
 
 172. Restriction on employment of messengers 
 
 and laborers. 
 
 173. Duties of chief clerk; supervising subor- 
 
 dinates. 
 
 174. Duties of chief clerks; monthly reports, 
 
 etc. 
 
 175. Action on reports of chief clerks. 
 
 176. Disbursing clerks. 
 
 177. Vacancies in head of department; how 
 
 temj)orarily filled. 
 
 178. Vacancies in subordinate offices. 
 
 Sec. 
 
 179. Vacancies, authority of President to fill 
 
 temporarily. 
 
 180. Temporary appointments limited to 30 
 
 days. 
 
 181. Restriction on temporary appointments. 
 
 182. Extra compensation disallowed. 
 
 183. Oaths, when administered by officers, etc. 
 
 184. Claims pending in depaitments— Sub- 
 
 poenas to witnesses. 
 
 185. Witnesses' fees. 
 
 186. Compelling testimony. 
 
 187. Legal assistance in connection with claims. 
 
 188. Suits in Court of Claims — Evidence fur- 
 
 nished by departments. 
 
 189. Employment of attorneys or counsel. 
 
 190. Persons formerly in departments not to 
 
 prosecute claims. 
 
 191. Certified balances conclusive in settle- 
 
 ment of public accounts. 
 
 192. Expenditures for newspapers. 
 
 193. Annual report of expenditures from con- 
 
 tingent funds. 
 
 194. Report of clerks employed. 
 
 195. Time of making annual reports to Con- 
 
 gress. 
 
 196. Time of furnishing annual reports to 
 
 printer. 
 
 197. Inventories of department property. 
 
 198. Data to be furnished for biennial register. 
 
 Sec. 158. [Application of provisions of this Title.] The provisions of this 
 Title shall apply to the following Executive Departments : 
 First. The Department of State. 
 Second. The Department of War. 
 Third. The Department of the Treasury. 
 Fourth. The Department of Justice. 
 Fifth. The Post Office Department. 
 Sixth. The Department of the Navy. 
 Seventh. The Department of the Interior. 
 
 For laws and decisions relating to the organiza- 
 tion of the Department of the Navy, its 
 bureaus and offices, see Title X, "The 
 Department of the Navy," sections 415 to 
 436, Rexdsed Statutes. 
 
 Origin and Growth of Executive Depart- 
 ments. 
 
 Recognized by the Constitution. — The 
 Constitution provides that "the Executive 
 power shall be vested in the President of the 
 
 United States," but the Constitution does not 
 specify the subordinate administrative func- 
 tionaries by whose agency or counsels the de- 
 tails of the public business are to be transacted. 
 It recognizes the existence of such ofiicial agents 
 and advisers in saying that the President "may 
 require the opinion, in writing, of the principal 
 officer in each of the executive departments 
 upon any subject relating to the duties of their 
 respective offices"; and these ofiicers are again 
 recognized by the Constitution in the clause 
 which vests the appointment of certain inferior 
 
 189 
 
Sec. 158. 
 
 Pt.2. REVISED STATUTES. Executive Departments. 
 
 oflicers "ill the heads of departments"; and it 
 leaves the number and the organization of those 
 departments to be detennined by Congress. 
 
 Department of State.— In tiie execution 
 of this duty tlie Constitutional Congress pro- 
 ceeded, at an early day of its lirst session (J uly 
 27, 1789), to establish the Department of For- 
 eign Affairs, with "a principal oflicer therein," 
 to be called the Secretary for the Department 
 of Foreign Affairs. 
 
 But this act, which was the commencement 
 of the organization of executive departments 
 under the Constitution, and a commencement 
 in the direction of a systematic and proper dis- 
 tribution of duties, gave place, after the lapse 
 of a few months (Sept. 15, 1789), to an act 
 which changed the name of the Department of 
 Foreign Al'fairs to that of Department of State. 
 Department of War. — Next, Congress es- 
 tablished the Department of War (Aug. 7, 1789), 
 with a principal ofiicer therein to be called the 
 Secretary for the Department of War, and re- 
 quired to perform duties relative to military or 
 naval affairs. 
 
 Department of Treasury. — Next came a 
 Departmentof Treasury' (Sept.2, 1789), the head 
 of it being called tlie Secretary of the Treasury. 
 Attorney General. — ^ft the same eetjsion of 
 Congress, in organizing the judicial business of 
 the United States (Sept. 24, 1789), provision was 
 made for an Attorney General. 
 
 Postmaster General. — By another act 
 (Sept. 22, 1789) theofficeof Postmaster General 
 was appointed, subject to the direction of the 
 President, but not in other respects then placed 
 en the same high official relation to the Gov- 
 irmnent as at the present time. 
 
 Original Cabinet. — Such was the original 
 basis of the executive organization of the Gov- 
 ernment. The Secretary of State for political 
 and foreign affairs, the Secretary of War for 
 military and naval matters, the Secretary of the 
 Treasury for those of finance, and the Attorney 
 General for legal and judicial ones, were the 
 immediate superior ministerial officers of the 
 President, and his constitutional counselors 
 during the whole period of the administration 
 of Washington. The Cabinet, so called, con- 
 sisted of these four officers, who, though not in 
 any sense an organized body with legal attri- 
 butes as such, yet proceeded to act in concert. 
 Department of the Navy. — No material 
 modification occurred in the great outlines of 
 superior administration until during the ad- 
 ministration of John Adams, when the magni- 
 tude of our commerce and the importance of 
 our maritime relations induced the Govern- 
 ment to pay more attention to the military 
 marine and to establish the Department of the 
 Navy, the chief officer of which to be called the 
 Secretary of the Navy, whose duty it should be 
 to execute such orders as he might receive from 
 the President relative to the procurement of 
 naval stores and materials, and the construc- 
 tion, armament, eciuipment, and employment 
 of vessels of w^ar, as well as to all other matters 
 connected with the naval establishment of the 
 United States. (Act Apr. 30, 1798.) 
 
 Postmaster General elevated to Cabi- 
 net. — Subsequently to this, and in the long 
 period of the administrations of Jefferson, Madi- 
 son, Monroe, and John Quincy Adams, no change 
 
 in the general character of the executive de- 
 partments took place, although all of them 
 underwent more or less mothfication in details. 
 But, at the opening of Jackson's administration 
 [1829], the Postmaster General, whose duties 
 and responsibilities had grown with the growth 
 of the country to be of vast importance, was 
 called, as the public interests required he 
 should be, to the same duties of a cabinet coun- 
 selor of the President which had been dis- 
 charged theretofore by the four Secretaries 
 (State, War, Treasury, and Navy) and the 
 Attorney General. This fact constituted the 
 first important alteration in the arrangements 
 of superior administrative duty and accounta- 
 bility which had occurred since 1798, when the 
 Department of the Navy was established. 
 
 Department of the Interior. — By an act 
 passed at the close of Mr. Polk's administration 
 (Mar. 3, 1S49), in order to relieve the Depart- 
 ments of State, War, Treasury, and Navy of 
 branches of public business which now required 
 to be placed in other hands, a new executive 
 department was organized, to be called the 
 Department of the Interior. 
 
 (6 Op. Atty. Gen., 326, Mar. 8, 1854.) 
 
 Department of Agriculture. — Was estab- 
 lished by act of May 15, 1862 (12 Stat., 387), sec- 
 tion 520, Revised Statutes, but was not made 
 one of the "executive departments" within the 
 meaning of section 158, Revised Statutes, until 
 the act of February 9, 1889 (25 Stat., 659). 
 
 Department of Commerce. — Was estab- 
 lished as an executive department, under the 
 name of Department of Commerce and Labor, 
 byact of February 14, 1903 (32 Stat., 825). Its 
 name was changed to Department of Commerce 
 by act of March 4, 1913 (37 Stat., 736). 
 
 Department of Labor. — A\'as established 
 as a separate executive department by act of 
 March 4, 1913 (37 Stat., 736), which amended 
 the act establisliing the Department of Com- 
 merce and Labor accordingly, making two de- 
 partments, viz, the Department of Commerce 
 and the Department of Labor, instead of one 
 department, as theretofore. 
 
 Precedence of executive departraents 
 and Cabinet oflS.cers. — The Department of 
 the Navy is sixth in order of precedence among 
 the executive departments (see sec. 158, R. S., 
 above); and by act of January 19, 1886 (24 Stat., 
 1), the Secretary of the Navy is sixth in order 
 of precedence among the Cabinet officers in the 
 matter of succession to the duties of the Presi- 
 dent, following next after the Postmaster 
 General. 
 
 Status of executive departments. — Ex- 
 ecutive departments, with their heads, are not 
 mere agents of the Government, with no power 
 except such as is expressly conferred, but are, 
 on the contrary, parts of the Government itself, 
 of the executive and coordinate branch of the 
 Government, and their acts when executive 
 are the acts of the Government itself. (22 Op. 
 Atty. Gen., 437, 444.) 
 
 Nature of duties. — In general, the official 
 duties of the head of one of the executive de- 
 partments, whether imposed by act of Congress 
 or by resolution, are not mere ministerial duties; 
 the head of an executive department of the 
 
 190 
 
Executive Departments. PL 2. REVISED STATUTES 
 
 Sec. 159. 
 
 Government, in the administration of the vari- 
 ous and important concerns of his office, is 
 continually required to exercise judgment and 
 discretion; he must exercise his judgment in 
 expoimding the laws and resolutions of Congress 
 under which he is, from time to time, required 
 to act; if he doubts, he has a right to call on 
 the Attorney General to assist him with his 
 counsel; and it would be difficult to imagine 
 why a legal adviser was provided by law for the 
 heads of departments, as well as for the Presi- 
 dent, unless their duties were regarded as execu- 
 tive,in which judgmentand discretion were to be 
 exercised. (Decatur v. Paulding, 14 Pet., 497.) 
 The President speaks and acts through 
 the heads of the several departments in rela- 
 tion to subjects which appertain to their respec- 
 tive duties. Hence the act of the Secretary of 
 War or Secretary of the Navy in a matter under 
 his jurisdiction is considered as being in legal 
 contemplation the act of the President. (Wil- 
 cox -?;. Jackson, 13 Pet. ,498, 513; U.S.i;. Cutter, 
 25 Fed. Cas. No. 14911; see also, Wolsey v. Chap- 
 man, 101 U. S.,755, 769; Williams ^ij. U. S., 1 
 How., 290; Jones^;. U. S., 137U. S., 202; Truitt 
 V. U. S., 38 Ct. Cls., 398; U. S. v. Eliason, 16 Pet., 
 291, 302; Confiscation Cases, 20 Wall., 92, 109; 
 U. S. V. Farden, 99 U. S., 10, 19; Runkle -y. U. S., 
 122 U. S., 543, 557; U. S. v. Fletcher, 148 U. S., 
 84, 88; Wood v. Beach, 156 U. S., 548.) Their 
 acts in such matters may be presumed to have 
 been done by the approbation and direction of 
 the President (Weller v. U. S., 41 Ct. Cls., 324; 
 Adams v. U. S., 42 Ct. Cls., 211), except where 
 he must act judiciallv (Truitt v. U. S., 38 Ct. 
 Cls., 398; Runkle v. U. S., 122 U. S., 543,_ 557), 
 for they are the eyes and hands of the President, 
 to execute the laws and his executive rules and 
 regulations (6 Comp. Dec, 61); and it is not nec- 
 essary that orders issued by them should contain 
 express reference to the direction of the Presi- 
 dent; whether he is named or not, the act or 
 order is to have legal effect as by construction 
 the act or the order of the supreme executive 
 authority, civil and military, of the United 
 
 States. (7 Op. Atty. Gen., 453.) See also 
 Adams v. U. S., 42 Ct. Cls., 191. Many things 
 may be done by the head of an executive de- 
 partment without the actual signature of the 
 President which when done are his acts; but 
 in such case the document should declare it 
 to be the act of the President, performed by 
 the head of the department as his representa- 
 tive. (22 Op. Atty. Gen., 82.) 
 
 Where an order purports on its face to 
 be issued by direction, not of the Presi- 
 dent but of the Secretary of War, there is 
 nothing to show that the President exercised 
 his discretion under a law providing that the 
 act should be done in the discretion of the 
 President. No one but the President, or the 
 Secretary acting for him as his constitutional 
 organ, can fulfill the requirements of the act; 
 nor can the Secretary delegate to a subordinate 
 the authority to act for the President so as to 
 fix liability upon the Government. (Truitt v. 
 U. S., 38 Ct. Cls., 398. See also Weller -w. U. S., 
 41 Ct. Cls., 324, 336, and note 8, sec. 1393, R. S.) 
 
 In all the cases considered — and we are aware 
 of no authority to the contrary — it will be noted 
 that the power of the President was exercised 
 through the head of the department and not by 
 a subordinate. (Truitt?;. U. S., 38 Ct. Cls., 404.) 
 
 Tlie signature of the head of a department 
 does not recniire the use of pen and ink, lield 
 and guided by the hand of the person himself. 
 The impress of his name with a stamp or 
 copperplate by himself or in his presence is 
 legally sufficient. (1 Op. Atty. Gen., 670.) 
 
 Ofl&cers of the Navy are not agents of 
 the Secretary of the Navy, but, like the 
 Secretary himself, are the agents and repre- 
 sentatives of the President, who is the Com- 
 mander in Chief of the Army and Navy; and 
 any authority the Secretary may exercise over 
 them he exercises solely as representative of 
 the President. (McGowan v. Moody, 22 App. 
 D.C.,148.) 
 
 For other decisions, see note to section 417, 
 Revised Statutes. 
 
 Sec. 159. ["Department," defined.] The word "Department," when used 
 alone in this Title, and Titles five, six, seven, eight, nine, ten, and eleven, means 
 one of the Executive Departments enumerated in the preceding section. 
 
 have no existence elsewhere. Only those 
 bureaus and offices can be deemed bm-eaus and 
 offices in any of these departments which are 
 constituted such by law of its organization. 
 The department, with its bureaus or offices, is 
 in the contemplation of the law an establish- 
 ment distinct from the branches of the public 
 service and the offices thereof which are under 
 its supervision. Thus the office of postmaster 
 or of collector of internal revenue or of pension 
 agent or of consul is not properly a department 
 office — not an office in the department having 
 supervision over the branch of the public 
 service to which it belongs. True^ an official 
 relation exists here between the office and the 
 department, one, moreover, of subordination of 
 the former to the latter; but this does not make 
 the office a part of the department. (15 Op. 
 Atty. Gen., 262, 267; 26 Op. Atty. Gen., 254.) 
 The Marine Corps headquarters is a part 
 of the Naval Establishment, but it is not a part 
 
 Application op Section. 
 
 Departments established since Revised 
 Statutes. — The terms "departments" and 
 "executive departments" as used in acts of 
 Congress and in the Revised Statutes invariably 
 apply to one or more of the several executive 
 departments mentioned in section 158, Revised 
 Statutes, or included within the terms of that 
 section by subsequent enactments, unless a 
 different meaning is clearly indicated by the 
 context. (26 Op. Atty. Gen., 209.) 
 
 The term "executive departments" in the 
 Federal statutes refers only to those depart- 
 ments specified in section 158, Revised Stat- 
 utes, to which certain other departments have 
 since been added. (22 Op. Atty. Gen., 62.) 
 See note to section 158, Revised Statutes. 
 
 Offices not at seat of government. — The 
 several executive departments are by law 
 established at the seat of govermuent; they 
 
 191 
 
Sec. 169. 
 
 rt. 2. REVISED STATUTES. Executive Departments. 
 
 of the Navy Department as established at the 
 eeat of Government; it ia under the supervision 
 of the executive department, but that rehition 
 to the department is not the same as being a 
 part of it. (11 Comp. Dec, 558; file 4600, Apr. 
 10, 1SK)6; 21686, Apr. 11, 1906.) 
 
 Field services, Army, Postal Service. — 
 The term "executive department" refers 
 only to what may be called the department 
 proper located at Wa.shin,<;ton, and does not 
 include those adjuncts of a department ensj^aged 
 wholly in field service; nor the Army, which is 
 not a part of the War Department proper. (4 
 Comp. Dec., 551; see also 5 Comp. Dec, 667; 
 7 Comp. Dec, 126.) 
 
 Several of the executive departments have 
 field services as parts thereof, and have bureaus 
 and offices attached to them by law with their 
 respective field services. Certain other general 
 Govermuent establishments, such as the Recla- 
 mation Service, put under the control of the 
 Secretary of the Interior by law, are not parts 
 of the Interior Department (within the sense 
 of the public printing act). Like conditions 
 are found in other departments of the Govern- 
 ment. The Army is under the administrative 
 control of the Secretary of War, but is not a part 
 of the executive department called the War 
 Department located at the seat of government, 
 and its support is specifically appropriated for. 
 A like condition exists as to the Postal Service 
 as distinguished from the Post Office Depart- 
 ment here at the seat of government. (11 Comp. 
 Dec, 601; 27 Op. Atty. Gen., 427; 13 Comp. 
 Dec, 733; 15 Comp. Dec, 297; 10 Comp. Dec, 
 771; 15 Comp. Dec, 111; 20 Comp. Dec, 4.) 
 
 The Reclamation Service is not a department 
 or establishment of the Government in Wash- 
 ington, but a field ser\ice. (20 Comp. Dec, 42.) 
 
 A clerk in a navy yard is not a clerk in an 
 executive department, although the navy yard 
 is under the supervision of one of the executive 
 departments. But a clerk who is performing 
 duties away from a department but by direct 
 orders from and under supervision of the de- 
 partment is regarded as a clerk in the depart- 
 ment within the act of June 22, 1906, section 5 
 (34 Stat., 449), restricting transfers of employees 
 from one department to another department. 
 (26 Op. Atty. Gen., 254.) 
 
 Employees of the navy yard and gun factory 
 in Washington are under the Navy Depart- 
 ment but are not a part of an executive de- 
 partment. (11 Comp. Dec, 97.) 
 
 Forest Service, Department of Agri- 
 culture. — A clerk in the field service of the 
 Forest Service, Department of Agriculture, is 
 not a clerk in an executive department. (27 
 Op. Atty. Gen., 100.) 
 
 The Forest Service in Washington is part of 
 the Department of Agriculture, and clerks on 
 the rolls of the Forest Service in Washington 
 are clerks in an executive department. (27 
 Op. Atty. Gen., 421.) 
 
 That portion of the Forest Service in the field 
 outside of Washington is not a part of the De- 
 partment of Agriculture proper, and printing for 
 such field service is not printing for an execu- 
 tive department. (14 Comp. Dec, 723; see 27 
 Op. Atty. Gen. ,426.) 
 
 Independent commission, board, or of- 
 fice. — No board, bureau, or office which is not 
 
 expressly or by implication under the control 
 of one of the executive departments can be 
 considered as belonging properly to one of 
 them. The Civil Service Commission is not 
 attached in any way to any of the executive 
 departments, nor is it subject in any wise to 
 the control of any of the heads of such depart- 
 ments. (22 Op. Atty. Gen., 62.) 
 
 The Civil Service Commission is not an exec- 
 utive department within the meaning of section 
 190, Revised Statutes, respecting the prosecu- 
 tion of claims. (25 Op. Atty. Gen., 6.) 
 
 The Government Printing Office is not a 
 bureau or division of either of the executive 
 departments. (U. S. v. Allison, 91 U. S., 303, 
 reversing 10 Ct. Cls., 449.) 
 
 The office of the warden of the jail. District 
 of Columbia, is a bureau or division of the De- 
 partment of the Interior, it appearing that the 
 whole subject of the jail is under the super- 
 vision of the Secretary of the Interior, to whom 
 the warden is required to report. (Manning's 
 case, 13 Wall., 578; explained in U. S. v. Alli- 
 son, 91 U. S., 307.) 
 
 The term "department" as used in laws 
 relating to the civil service is distinguished 
 from "office," "bureau," and "branch," and 
 subordinates of the several executive depart- 
 ments are distinguished from employees of the 
 last-mentioned governmental agencies. The 
 Government Printing Office, the Interstate 
 Commerce Commission, and the Smithsonian 
 Institution are independent of any of the ex- 
 ecutive departments mentioned in section 158, 
 Revised Statutes. The Bureau of Insular Affairs 
 is an integral part of the War Department. (26 
 Op. Atty. Gen., 209.) 
 
 The accounting oflB.cers of the Treasury 
 do not constitute a "department" within the 
 meaning of an act of Congress referring to claims 
 "rejected or reported on adversely by any 
 court, department, or commission authorized 
 to hear and determine the same." (U. S. v. 
 Harmon, 147 U. S., 273.) 
 
 Persons employed in a bureau or divi- 
 sion of a department are as much employees 
 in a department as the messengers and others 
 rendering service imder the immediate super- 
 vision of the Secretary. (Manning's case, 13 
 Wall., 578.) 
 
 The term "executive and judicial de- 
 partments," as used in section 87 of the public 
 printing act, January 12, 1895 (28 Stat., 622), 
 was intended to include all branches of the 
 executive department of the Government and 
 is not limited in its application to that branch 
 of the service to the principal executive 
 departments, enumerated in section 158, 
 Revised Statutes. Accordingly, held that it 
 includes printing and binding for the Interstate 
 Commerce Commission at Washington. (4 
 Comp. Dec, 273.) 
 
 The words "branch" and "department" 
 of the Government are not used synonymously 
 (in sec. 365, R. S.). The latter refers to the exec- 
 utive departments recognized by the Constitu- 
 tion and regularly established by law, and the 
 former to those parts of the Government which 
 are created by statute as independent of any 
 de|)artnient, such as the Government Printing 
 Office, the Smithsonian Institution, and other 
 organizations. (Perry v. U. S. 28 Ct. Cls., 493.) 
 
 192 
 
Executive Departments. Pt. 2. REVISED STATUTES. 
 
 Sec. 161. 
 
 under the authority of the United States, which 
 shall have been created, or the emoluments 
 whereof shall have been increased, during such 
 time." (Const., Art. I, sec. 6, clause 2.)] 
 
 The salary of the Secretary of Labor was 
 fixed at $12,000 per annum by act of March 4, 
 1913 (37 Stat., 736), which established the De- 
 partment of Labor. 
 
 By section 6, legislative, etc., appropriation 
 act, July 16, 1914 (38 Stat., 509), it was provided 
 that "the rates of salary or compensation of 
 officers or employees herein appropriated shall 
 constitute the rate of salary or compensation 
 of such officers or employees, respectively, 
 imtil otherwise fixed by annual rate of appro- 
 priation or other law." 
 
 Sec. 160. [Salaries of Heads of Departments.] Each head of a Department 
 is entitled to a salary of ten thousand dollars a year, to be paid monthly. — (3 
 Mar., 1873, c. 226, s. 1, v. 17, p. 486; 20 Jan., 1874, c. 11, v. 18, p. 4; 3 Mar., 
 1875, c. 130, V. 18, p. 396.) 
 
 Amendments. — By act of January 20, 1874 
 (18 Stat., 4), the salaries of heads of departments 
 were reduced to $8,000; by act of February 26, 
 1907 (34 Stat., 993), their salaries were increased 
 to $12,000 each; by act of February 17, 1909 (35 
 Stat., 626), the salary of the Secretary of State 
 was again fixed at $8,000, until it was increased 
 to $12,000 by appropriation in the act of March 
 4, 1911 (36 Stat., 1186). [This exception to the 
 general law fixing salaries of heads of depart- 
 ments was made in the case of the Secretary of 
 State, in order to render eligible for that office 
 a former member of the Senate who would 
 otherwise have been disqualified under the 
 constitutional provision that "no Senator or 
 Representative shall, during the time for which 
 he was elected, be appointed to any civil office 
 
 Sec. 161. [Departmental Regulations, Property and Records.] The head of 
 each Department is authorized to prescribe regulations, not inconsistent with 
 law, for the government of his Department, the conduct of its officers and clerks, 
 the distribution and performance of its busmess, and the custody, use, and 
 preservation of the records, papers, and property appertaining to it. — (27 July, 
 1789,0. 4, V. 1, p. 28; 15 Sept., 1789, c. 14, v. 1, p. 68; 7 Aug., 1849, c. 7, v. 1, 
 p. 49; 2 Sept., 1789, c. 12, v. 1, p. 65; 8 June, 1872, c. 335, v. 17, p. 283; 30 
 Apr., 1798, c. 35, v. 1, p. 553; 22 June, 1870, c. 150, s. 8, v. 16, p. 163; 3 Mar., 
 1849, c. 108, V. 9, p. 395; 15 Aug., 1876, c. 287, s. 3, v. 18, p. 169.) 
 
 The "distribution and performance" of the 
 business of the Department of the Navy, 
 and the custody of its records and property 
 are provided for by sections 418-420, Re- 
 vised Statutes. 
 
 Regulations for the purchase, preservation, and 
 disposition of supplies, etc., for the Navy 
 are to be made by the President, under sec- 
 tion 1549, Revised Statutes. 
 
 Jurisdiction over property accounts in the Navy 
 is conferred upon the Paymaster General of 
 the Navy by act of March 29, 1894 (28 Stat., 
 
 47). 
 Offenses against public property by persons m 
 
 the naval service are made punishable by 
 
 section 1624, Revised Statutes, articles 4, 
 
 8, and 14. 
 Inventories of property in departments are 
 
 required by section 197, Revised Statutes. 
 
 Distribution of Business. 
 
 Custody of Property and Records. 
 
 Navy Regulations. 
 
 Constitutionality and Necessity of 
 Laws Authorizing Regulations. 
 
 Regulations Defined. 
 
 Weight of Regulations. 
 
 Limitations upon Power to Make 
 Regulations. 
 
 Rules for Testing Validity of Regu- 
 lations. 
 IX. Waiver of Regulations. 
 
 I. 
 
 II. 
 
 III. 
 
 IV. 
 
 V. 
 
 VI. 
 
 VII. 
 
 VIII. 
 
 I. Distribution of Business. 
 
 Delegation of duties by head of depart- 
 ment. — As Congress well knew that it would 
 be impossible for the head of an executive 
 department to give a hearing in person to all 
 matters coming before that department, it has 
 authorized the head of each department to pre- 
 scribe rules and regulations for the conduct of 
 the officers and clerks and the distribution and 
 performance of its business. In pursuance of 
 this authority the head of a department may 
 intrust the determination of matters to his as- 
 sistant, subject of course to his approval. The 
 actions of the assistant on matters of this kind 
 are merely those of a master or referee of a court 
 to hear proofs and report his findings of fact and 
 probably conclusions of law. It is the judge of 
 the court, or in cases of this kind the head oi 
 the department, who finally acts on the matter, 
 either adopting the recommendations of the ref- 
 eree or assistant or rejecting them. It is the 
 head of the department who promulgates the 
 conclusion as his own, independent of what the 
 recommendations of his assistant might have 
 been. The courts will conclusively presume 
 that the head of the department acted on the 
 testimony submitted to him as fully as if he had 
 been present at the hearing and had not sub- 
 mitted it to one of his assistants. (Lewis Pub- 
 lishing Co. V. Wyman, 152 Fed. Rep., 787). [In 
 this case the statute required that a hearing be 
 had, and the court held that the head of the de- 
 
 193 
 
Sec. 161. 
 
 Pt.2. REVISED STATUTES. Executive Departments. 
 
 partment properly aasigned the duty of con- 
 diictinc;thehearinp to one of hia assistants.] To 
 same effect, Shillito Co. v. Mct'lung, 51 Fed. 
 Rep., 8(i8; Parish v. U. S., 100 U. S., 500; Chad- 
 wick v. U.S., 3 Fed. Rep.,75C; U.S.i;.Adama,24 
 Fed. Rep., 348; Smith v. Hitchcock, 226 U. S., 
 53; 1 Comp. Dec, 370; 3 Corap. Dec, 730; 4 
 Comp. Dec, 462. See also note to section 177, 
 Revised Statutes. 
 
 Transfer of duties. — This section does not 
 authorize the Secretary of Commerce and Labor 
 to transfer to the disbursing clerk of that de- 
 partment the duties formerly performed by the 
 dL«bursing clerk of the Bureau of the Censvis, 
 in the same department. The position of dis- 
 bursing clerk in the Census Office was estab- 
 lished oy Congress and has since been regularly 
 appropriated for. Such position must there- 
 fore be regarded as essential to the Census or- 
 ganization until Congress other\\ise pro-\ides, 
 and it would be ' ' inconsistent with law " within 
 the meaning of this section to make the pro- 
 posed change. (29 Op. Atty. Gen., 247.) 
 
 Authority and signature of assistant. — 
 So long as the powers delegated to the assistant 
 secretary by his superior remain unrevoked, 
 the authority of the former is coordinate and 
 concurrent with that of the latter. "\Mien the 
 assistant acts at a time the Secretary is not 
 absent or sick, under a regulation made by the 
 Secretary' prescribing his powers and duties, 
 he should sign with his own proper official 
 designation, ^\^len the Secretary is absent or 
 eick, if the assistant is in charge of the depart- 
 ment in pursuance of section 177 or 179, Re- 
 vised Statutes, he should sign as Acting Secre- 
 tary. (19 Op. Atty. Gen., 133.) 
 
 II. Custody of Property and Records. 
 
 Authority of Secretary. — From this sec- 
 tion it appears that the head of a department 
 has full charge and control of all the records and 
 papers belonging to the department. His au- 
 thority to prescribe whatever rules and regula- 
 tions he may deem proper regarding their use 
 and custody is unlimited so long as ' not incon- 
 sistent with law." Such broad discretion 
 would necessarily include the right to deter- 
 mine whether certain documents should or 
 should not be taken from the files of the de- 
 partment for any purpose except for use in 
 connection with departmental business and in 
 accordance -with his determination so to instruct 
 the chiefs of bureaus or other officers concerned . 
 (25 Op. Atty. Gen., 326.) 
 
 That the head of a department may legally 
 prohibit an officer from producing in court or 
 elsewhere official records was authoritati^'ely 
 decided in Boske v. Comingore, 177 U. S., 459. 
 (25 Op. Atty. Gen., 326.) 
 
 The head of an executive department may 
 properly decline to furnish official records of 
 his department or copies thereof or to give testi- 
 mony in a cause pending in court between 
 private parties respecting facts which haAe 
 come to his knowledge officially, whenever in 
 his judgment the production of such papers or 
 the gi\T.ngof such testimony might prove prej- 
 udicial for any reason to the Government or to 
 the public interests. (25 Op. Atty. Gen., 326.) 
 
 The head of an executive department may 
 legally prohibit the chief of a bureau from pro- 
 ducing in court any official records of the de- 
 partment or certified copies thereof in obedience 
 to a subpoena duces tecum, and from making 
 or certifying copies of such official records. (2.5 
 Op. Atty. Gen,, 326.) 
 
 The records of executive departments 
 are quasi-confidential in their nature and 
 must De classed as pri\dleged communications 
 whose production can not be compelled by a 
 court without express authority of a law of the 
 United States. (25 Op. Atty. Gen., 326.) See 
 Navy Department General Order No. 121, Sep- 
 tember 17, 1914. 
 
 Transfer of public property. — The duties 
 of a public officer as custodian of public prop- 
 erty do not impliedly authorize him to transfer 
 such property to some other branch or estab- 
 lishment of the Government; on the contrary, 
 such duties impliedly prohibit him from trans- 
 ferring the possession of property committed to 
 his care to some one else. Even though the 
 transfer of property would be to the pecuniary 
 advantage of the Government, and even though 
 such transfer if made would meet with the 
 approval of Congress, the custodian of the prop- 
 erty has no legal authority to make such transfer. 
 It is for Congress, under the constitutional 
 grant with respect to the regulation and dispo- 
 sition of the territory and other property of the 
 United States, to say what shall be done with 
 the property in question; mere custodians have 
 no such authority. (29 Op. Atty. Gen., 524; 
 compare 17 Op. Atty. Gen., 480.) See also 
 note to section 355, Revised Statutes. 
 
 Ownership of public property. — The ar- 
 chives or other property of any department are 
 not in the possession of the head of the depart- 
 ment, chief of bureau, or clerk under either, 
 but in the possession of the United States. 
 Hence a party can not by writ of replevin 
 against such head of department or other public 
 officer take papers from the pubUc archives on 
 the allegation of their being his private prop- 
 erty. By the writ of reple\an a party claiming 
 the rightful possession of a tiling takes it away 
 from another party alleged to be wrongfully in 
 possession of the thing. There must be a party 
 possessory, as well as a party claiming adverse 
 right of possession. A writ of reple\dn issued 
 against a pubUc officer in such a case is a nulUty. 
 It is the right and duty of the head of the 
 department, and of all persons under his au- 
 thority, to resist by force any attempt by writ 
 of replevin or otherwise to abstract any docu- 
 ment from the archives of the Government. 
 (6 Op. Atty. Gen., 7.) 
 
 For other cases, see note to section 418, 
 Revised Statutes. 
 
 III. Navy Regulations. 
 
 "There are two general classes of reg- 
 ulations issued by the Secretary of the 
 
 Navy, namely, first, those which are expressly 
 approved by the President in accordance with 
 an order issued by Secretary Moody, June 22, 
 1904. These are known as Navy Regulations 
 and are specifically stated to be issued by au- 
 thority of section 1547, Revised Statutes; and 
 
 194 
 
Executive Departments. PL 2. REVISED STATUTES. 
 
 Sec. 161. 
 
 Becond, those wliich. are not expressly approved 
 by the President, such as Naval Instructions, 
 Forms of Procediire for Courts and Boards in the 
 Navy and Marine Corps, [now entitled ' Naval 
 Courts and Boards'], Uniform Regulations, 
 Signal Books and Drill Books, General Orders, 
 Court-Martial Orders, Manual for Recruiting 
 Officers, Manual Governing the Transportation 
 of Enlisted Men, Manual for the Medical De- 
 partment, and Rules for Target Practice and 
 Engineering Competitions. These publications 
 have full force and effect as regulations for the 
 guidance of all persons in the Naval Establish- 
 ment (Art. 901 (3), Navy Regs., 1913), and have 
 been regarded as authorized by section 161, 
 Revised Statutes (File 3980-942, Apr. 10, 1914), 
 which has never been held to require the Presi- 
 dent's approval." (File 3980-1044, Mar. 19, 
 1915.) 
 
 Even under section 1547, Revised Statutes, 
 express approval of the President is not re- 
 quired by law, although as a general policy it 
 is obtained in practice. (File 3980-1044, Mar. 
 19, 1915, citing Adams v. U. S., 42 Ct. Cls., 191; 
 see also 16 Comp. Dec, 354, 358; compare Phil- 
 lips V. Grain Corporation, 279 Fed. Rep. 244, 
 248.) 
 
 Regulations of the United States Naval 
 Academy are presiunably issued by the Sec- 
 retary of the Navy pursuant to section 1547, 
 Revised Statutes. (Weller v. U. S., 41 Ct. Cls., 
 324, 343; but see contra file 313-51, Mar. 19, 
 1907.) [These regulations, however, are not 
 issued with the express approval of the Presi- 
 dent as is the practice under that section.] 
 
 Regulations governing deck courts in the 
 Navy are to be prescribed by the President. 
 (Act of February 16, 1909, section 5, 35 Stat., 
 621). 
 
 IV. Constitutionality and Necessity of 
 Laws Authorizing Regulations. 
 
 Not a delegation of legislative power. — 
 
 The Supreme Court has held that under the 
 Constitution the power of legislation possessed 
 by Congress can not be delegated (Field v. 
 Clark, 143 U. S., 649; see also Cooperville, etc., 
 Co. -y. Lemon, 163 Fed. Rep., 147); butthe power 
 conferred by these laws is in no sense a dele- 
 gated power of legislation. (Butler v. WTiite, 
 83 Fed. Rep., 578, reversed, on other grounds, 
 171 U. S., 379; 25_Op. Atty. Gen., 249.) Con- 
 gress "may commit something to the discretion 
 of the other departments, and the precise bound- 
 ary of this power is a subject of delicate and 
 difficult inquiry, into which a court will not 
 enter unnecessarily." (Wayman v. Southard, 
 per Chief Justice Marshall, 10 WTieat., 1.) 
 \\Tiile of course Congress can not constitu- 
 tionally delegate to the President (or head of 
 a department) legislative powers, "it may, 
 in conferring powers constitutionally exer- 
 cisable by him, prescribe or omit prescribing, 
 special rules of their administration, or may 
 specially authorize him to make the rules. 
 When Congress neither prescribes them, nor 
 expressly authorizes him to make them, he has 
 the authority, inherent in the powers conferred, 
 of making regulations necessarily incidental to 
 their exercise." (McCall's Case, 15 Fed. Cas., 
 1230.) The power to make laws can not be dele- 
 
 gated to an executive department; but prescrib- 
 ing conditions to enforcement of law is not legis- 
 lation. (Dunlap V. U. S., 33 Ct. Cls., 135; 173 
 U. S., 65.) Section 161, Revised Statutes, con- 
 fers administrative power only, and, under the 
 guise of regulation, legislation can not be exer- 
 cised. (U. S. V. United Verde Copper Co., 196 
 U. S., 207; U. S. v. George, 228 U. S., 14.) That 
 Congress may enact a law and delegate the 
 power to make all needful rules and regulations 
 not inconsistent therewith is clear. This is not 
 a grant of legislative power; it is only an au- 
 thority to determine a fact upon which the 
 operation of the law is made to depend. 
 (Cooperville, etc., Co. r. Lemon, 163 Fed. Rep., 
 147 . ) The operation of the law may be post- 
 poned until the regulations are issued. (Dun- 
 lap v. U. S., 173 U. S.,65.) 
 
 Congress can not legislate in detail. — To 
 attempt to regulate by statute the minute 
 movements of every part of the complicated 
 machinery of government would evince a most 
 unpardonable ignorance on the subject. Whilst 
 the great outlines of its movements may be 
 marked out, and limitations imposed on the ex- 
 ercise of its powers, there are numberless things 
 which must be done that can neither be antici- 
 pated nor defined, and which are essential to the 
 proper action of the government. (U. S. v. 
 Macdanicl, 7 Pet., 14; U. S. v. Webster, 28 Fed. 
 Cas., 515; Lewis Publishing Co. v. Wyman, 182 
 Fed. Rep., 13, 16; Haas v. Henkel, 216 U. S.,462, 
 480; 6 Op. Atty. Gen., 358.) Congress can only 
 legislate in a general way, and large powers are 
 necessarily intrusted to the different depart- 
 ments. They really exercise in this way by 
 delegation, and necessarily so, for the purpose of 
 carrying on the vast affairs of the Government 
 and its details, authority which in a strict sense 
 pertains to Congress. (21 Op. Atty. Gen., 438, 
 439.) The authority thus exercised by heads 
 of departments is "quasi legislative." (16 Op. 
 Atty. Gen., 495.) 
 
 Constitution vests discretion in Con- 
 gress. — The Constitution gives Congress power 
 to make all laws necessary and proper for carry- 
 ing into execution the powers vested by that 
 instrument in the Government of the United 
 States or in any department or officer thereof. 
 That power was exercised by Congress when it 
 authorized the head of a department to provide 
 by regulations not inconsistent with law for the 
 government of his department, the conduct of 
 its officers and clerks, the distribution and per- 
 formance of its business, and the custody, use, 
 and preservation of the records, papers, and 
 property appertaining to it. A particular regu- 
 lation may not have been absolutely or indis- 
 pensably necessary to accomplish the objects 
 indicated by the statute; but that is not the 
 test to be appUed when we are determining 
 whether an act of Congress transcends the pow- 
 ers conferred ui^on it by the Constitution. Con- 
 gress has a large tUscretion as to the means to be 
 employed in the execution of a power conferred 
 upon it. (Boske v. Comingore, 177 U. S., 459.) 
 
 V. "Regulations" Defined. 
 
 Must be general. — A regulation is a general 
 rule which affects a class of persons, and not 
 merely an order or instruction issued in a par- 
 
 195 
 
Sec. 161. 
 
 PL 2. REVISED STATUTES. Executive Departments. 
 
 ticular case. (Harvey v. U. S., 3 Ct. Cls. , 38, 42; 
 Lanclram v. U. S., IG Ct. Cls., 74.) The term 
 ' ' regulation ' ' implies a rule for a general course 
 of actioHj and does not apply to a case in which 
 specific instructions are i.s.sued applicable to 
 that case alone. (Christopher v. City of New 
 York, 13 Barb., 5G7, 573.) The term "regula- 
 tion" implies uniformity in operation; it must 
 be general in .scope and not discriminate in its 
 application. The function of an order relates 
 more particularly to the execution or enforce- 
 ment of a rule pre\nously made. (Morris v. 
 Board of Pilot Commissioners, 7 Del. Ch., 136; 
 30 Atl., 6G7, 6G9; Indianapolis Union By. Co. v. 
 Dohn, 153 Ind., 10, 45 L. R. A., 427.) Regula- 
 tions must be iniiform and applicable to all 
 officers under the same circumstances. (U. S. 
 V. Ripley, 7 Pet., 18.) [Congress has recognized 
 the distinction between regulations and occa- 
 sional orders, as, for example, in the act of 
 July 31, 1894, section 12 (28 Stat., 209), which 
 provided that "The Secretary of the Treasury 
 shall prescribe suitable rules and regulations, 
 and may make orders in particular cases, re- 
 laxing the requirement of mailing or otherwise 
 sending accounts as aforesaid," etc.] The 
 decision of the head of a department is not 
 in any sense a regulation under section 161, 
 Revised Statutes. Such decision is entitled to 
 and receives great respect and consideration by 
 the court, but it is not binding upon us as a valid 
 regulation of the Department, and can not be so 
 regarded. (Smith v. U. S., 170 U. S., 372, 380.) 
 The power to make regulations does not contem- 
 plate pro re nata interventions by the Secretary 
 of the Navy. (15 Op. Atty. Gen., 634.) 
 
 A regulation is an order in cases in which 
 it applies, as much so as a special command 
 reiterated on each particular occasion. (30 Op. 
 Atty. Gen., 376, 171 S. and A. Memo., 3611; file 
 26254-1451:11, Apr. 12, 1915.) 
 
 Not limited to a particular book. — The 
 expression "United States Naval Regulations." 
 as used in the act of March 2, 1895 (28 Stat. , 962) , 
 has been held by the Comptroller of the Treasury 
 to include Uniform Regulations and a state- 
 ment of the Chief of the Bureau of Navigation 
 giving the number and character of articles of 
 clothing required as the necessary outfit of offi- 
 cers and seamen; although the Comptroller 
 stated that a strict construction of the expres- 
 sion might limit it to the volume known as 
 "Navy Regulations." (2 Comp. Dec., 150.) 
 
 All orders not included. — Publications or 
 orders of the Secretary of the Navy or of bureau 
 chiefs or of any officer may be binding upon 
 officers of the Navy, but they are not properly 
 described as "lawful regulations issued by the 
 Secretary of the Navy," the violation of which 
 is punishable under the Articles for the Gov- 
 ernment of the Navy (sec. 1624, R. S.). Such 
 regulations are those described in sections 1547 
 and 1548, Revised Statutes, and consist of 
 orders, regulations, and instructions issued by 
 the Secretary prior to July 14, 18G2, with such 
 alterations as he may have since adopted with 
 the approval of the President. (25 Op. Atty. 
 Gen., 270). But see above, "III. Navy Regu- 
 lations." 
 
 Usages included. — A regulation within the 
 meaning of this section need not be promul- 
 gated in any set form, nor in WTiting, but may 
 
 con.sist of established usages and practices 
 which have become a kind of common law of 
 the Department. (Haas v. Henkel, 216 U.S., 
 462 ; 167 Fed. Rep., 211.) A usage becomes estab- 
 ILshed in no other way than by the practice of 
 the department; and the same authority which 
 establishes a usage may change it, for a cus- 
 tomary law is abrogated by the establishment 
 of a contrary custom; but whUe it remains un- 
 changed, it is binding. (U. S. v. Web.ster, 28 
 Fed. Cas., 509.) No change in such usage can 
 have a retroactive effect but must be limited to 
 the future. (U. S. v. Macdaniel, 7 Pet., 1, 15.) 
 In the Webster case (above), with reference to 
 the Army, the court said: "Such customs and 
 usages in the military service may be proved 
 by the same kind of evidence as is competent 
 to prove a custom in other cases, but the best 
 e\adence will be the regulations of the Army, 
 printed and promulgated by the War Depart- 
 ment; for these regulations, if I have a correct 
 view on the subject, are nothing more than an 
 authoritative digest of these customs. These 
 usages and customs, the gradual product of time 
 and circumstances, constitute a sort of comple- 
 ment to the statute law upon the subject; and 
 they may affect the rights and obligations of 
 those who are subject to them in various ways; 
 they may regulate and define their priA-ileges 
 and immunities, the nature of the services 
 which may be required of them, and the kind 
 or amount of compensation to which they may 
 be entitled for the performance of ser^dce3 
 superadded to the ordinary duties attached to 
 their office. But all tliis must be consistent 
 with the will of the legislature, expressed in the 
 public laws and not in opposition to it." And 
 a practice of disregarding the terms of an ex- 
 press provision of regulations, although with 
 the acquiescence of the head of the dejmrtment 
 who issued them, will not accomplish a repeal 
 of the regulation, which nevertheless continues 
 in effect. (Arthur v. U. S., 16 Ct. Cls., 433.) 
 There can be no such thing as a legal custom to 
 disregard a valid regulation. (G. C. M. O. 43, 
 1906, p. 3.) Customs and usages of the ser\dce, 
 whether originating in tradition or in specific 
 orders or rulings, are now, as such, not numerous 
 in the Army (or Navy), a large proportion, in 
 obedience to a natural law, having changed 
 their form by becoming merged in written regu- 
 lations. (1 Winth., 42; file 26836-7: 35, Feb. 13, 
 1913, p. 4.) 
 
 Classes of Regulations. — Regulations of 
 the Army [and Na\y] consist of four classes: 
 (1) General orders promulgated by the Presi- 
 dent under his constitutional prerogative as 
 Commander in Chief; (2) departmental regu- 
 lations prescribed by tne Secretary under sec- 
 tion 161, Revised Statutes; (3) regulations not 
 approved by Congress but made by the Presi- 
 dent in the exercise of legislative authority 
 conferred by Congress [see sec. 1547, R. S.]; 
 and (4) regulations expressly approved by Con- 
 gress. (In re Smith, 23 Ct. Cls., 452.) Orders, 
 regulations, and instructions issued by the 
 Secretary of the Na-vy under section 1547, 
 Revised Statutes, are presumed to be issued 
 with the approval of the President, though they 
 do not bear his signature. (Adams v. United 
 States, 42 Ct. Cls., 191,211; file 3980-1044, Mar. 
 19, 1915.) 
 
 196 
 
Executive Departments. Pt.2. REVISED STATUTES. 
 
 Sec. 161 
 
 VI. Weight of Regulations. 
 
 Have force of law. — Regulations issued by 
 the head of a department have the force and 
 effect of law and are as binding as if incorpor- 
 ated in the statute law of the United States. 
 (Stegallr.Thurman, 175 Fed. Rep., 813; U. S. v. 
 Barrows, 24 Fed. Cas. No. 14529; Haas i;. Henkel, 
 216 U. S., 462; Ex parte Reed, 100 U. S., 13; 
 U. S. V. Eliason, 16 Pet., 291; Gratiot v.V. S., 
 4 How., 80; U. S. v. Runkle, 122 U. S., 543; 
 U. S. V. Freeman, 3 How., 556; Kurtz -i). Moffit, 
 115 U. S.. 487, 503; U. S. v. Hutton, 26 Fed. Cas. 
 No. 15433; In re Huttman, 70 Fed. Rep., 699; 
 In re Weeks, 82 Fed. Rep., 729; Flynn?;. Fuell- 
 hart, 106 Fed. Rep., 911; In re Lamberton, 124 
 Fed. Rep., 446; Alvord v. U. S., 95 U. S., 356; 
 Peters V. U.S. ,33 Pac, 1031, 2 Okla., 116; Stans- 
 bury V. U. S., 37 Pac, 1083, 2 Okla., 151; Demp- 
 eey v. U. S., 44 Pac, 382, 2 Okla., 151; Katzer 
 V. U. S., 49 Ct. Cls., 294, decided Feb. 9, 1914, 
 No. 31888; Adams ii.U. S., 42 Ct. Cls., 191; Smith 
 V. Whitney, 116, U. S. 180; Pundti;. Pendleton, 
 167 Fed. Rep., 997.) 
 
 Anny regulations concerning the procedure 
 of courts-martial have the force of law. (23 Op. 
 Atty. Gen., 27.) 
 
 The Navy Regulations have the force and 
 effect of positive law. (27 Op. Atty. Gen., 257.) 
 
 It is well settled that regulations when di- 
 rectly approved by Congress have the absolute 
 force of law, equally with other legislative acts, 
 until repealed by the same power. Congress 
 has treated regulations so approved by it as 
 having the same force as congressional enact- 
 ments. (In re Smith, 23 Ct. Cls., 459.) Wlien 
 Congress expressly adopted and ratified certain 
 general orders issued by the Secretary of the 
 Navy, specifically describing them, and pro- 
 vided that they "shall have the force of law," 
 and further provided that a certain general 
 order, which was quoted in the act, "be and 
 the same is hereby confirmed," it was held by 
 the Attorney General that these orders "were 
 placed upon the footing of legislative acts, and 
 were incorporated into the statute law on the 
 subject of the Navy," and accordingly that 
 alterations therein could be made only by Con- 
 gress. (13 Op. Atty. Gen., 10; see also Maddux 
 V. U. S., 20 Ct. Cls., 193.) [This opinion of the 
 Attorney-General would apparently be appli- 
 cable to any regulation or order which had 
 been specifically adopted by Congress, either 
 expressly or by necessary implication, as for 
 example, executive orders fixing the pay of 
 enlisted men in the Na^'y, which were adopted 
 by Congress in the naval appropriation act 
 which made an increase of 10 per cent in the 
 existing pay of enlisted men and provided that 
 such pay should continue in effect until 
 changed by Congress. (Act May 13, 1908, 35 
 Stat., 128.) File 26509-106; see Comp. Dec, 
 May 19, 1915, file 26254-1784.] 
 
 Must be consistent with law. — Regula- 
 tions not approved by Congress have the force 
 of law only when founded on the President's 
 constitutional powers as Commander in Chief 
 of the Army and Navy, or when consistent 
 with and supplementary to the statutes which 
 have been enacted by Congress. (In re Smith, 
 23 Ct. Cls., 452.) Regulations to have the force 
 of law must be consistent with the statutes, and 
 
 the Supreme Court of the United States has 
 never held otherwise. (U. S. v. Symonds, 120 
 U. S. 46; U. S. V. Ross, 239 U. S., 530; Scheide v. 
 U. S. 52 Ct. Cls., 247.) The regulations of the 
 Army and Navy have the force of law with respect 
 to a person or subject matter of which the Secre- 
 tary has control, but to have the force of law 
 they must conform to the law. (Adams •?;. U. S . , 
 42 Ct. Cls., 191). It will not be pretended that 
 department regulations can control or annul 
 an act of Congress, and when it is said they have 
 the force of law nothing more is meant than 
 that they have that virtue when they are con- 
 sistent with the laws established by the legis- 
 lature. (U. S. V. Webster, 28 Fed. Cas., 515, 
 516.) 
 
 Must be limited as to persons and sub- 
 ject matter. — While in general terms it is 
 often said that the Army and Navy Regula- 
 tions have the force and effect of law, this can 
 only be proijeiiy so where we are dealing with a 
 person or subject matter over which the Secre- 
 tary has official control. (16 Op. Atty. Gen., 
 494.) But where the Secretary of the Navyhas 
 control of the subject matter, a lawful regula- 
 tion issued by him is binding on the account- 
 ing officers of the Treasury, and will protect 
 disbursing officers from responsibility for com- 
 pliance therewith, (30 Op. Atty. Gen., 376, 
 l71 S. and A. Memo., 3611. See also file 
 26254-1451:11, Apr. 12, 1915.) Army regula- 
 tions, issued pursuant to the explicit pro- 
 visions of a statute and in execution thereof, 
 when sanctioned by the President, have the 
 force of law, and are conclusive upon the ac- 
 counting officers of the Treasury; accord- 
 ingly, when an officer presents with his account 
 an authentic document or certificate of his hav- 
 ing commanded a post or arsenal for which an 
 order has been issued from the War Department 
 in conformity with the provisions of the Army 
 Regulations allowing double rations, his right 
 to them is estabhshed, nor can they be withheld 
 without doing him a wrong for which the law 
 giveshim a remedy. (U. S. v. Freeman, 3 How., 
 567.) 
 
 Are not the law itself. — Regulations pro- 
 mulgated under section 161, Revised Statutes, 
 have the force of law, but they are not the law 
 itself. (Laureyv. U.S.,32Ct.Cls.,265.) Regu- 
 lations prescribed by the President and heads of 
 departments under authority granted by Con- 
 gress may be regulations prescribed by law so as 
 to lawfully support acts done under them and 
 in accordance with them, and may thus have, in 
 a proper sense, the force of law; but it does not 
 follow that a thing required by them is a thing 
 so required by law as to make the neglect to 
 do the thing a criminal offense in a citizen 
 where a statute does not distinctly make the 
 neglect in question a criminal offense. Ac- 
 cordingly, held that a provision in an act of 
 Congress authorizing the Commissioner of 
 Internal Revenue, with the approval of the 
 Secretary of the Treasury, to make all needful 
 regulations for the can-ying into effect of the 
 act authorized a regulation requiring dealers 
 to keep certain books; but violation of said 
 regulation was not omitting or failing to do a 
 thing "required by law for the carrying on or 
 conducting of his business " mthin the meaning 
 of another section of the same act affixing a 
 
 197 
 
Sec. 161. 
 
 PL 2. REVISED STATUTES. Executive Departments. 
 
 l)i'nalty. [In tliis case the language of the law 
 wivs held not to intend to allix a i)('naUy for the 
 failure to keep the books in question.] U. S. v. 
 Eaton, 144 U. !S., 677; explained and distin- 
 guished in Caha v. U. S., 152 U. S., 211, and In re 
 Kollock, 1(;5 U. S., 520; see also U. S. v. Butter, 
 li>5 Fed. Rep., 657; U. S. v. Maid, 116 Fed. Rep., 
 650; compare Coopersville Cooperative Cream- 
 ery Co. V. Lemon, 163 Fed. Rep., 145; 21 Op. 
 Atty. Gen., 440. (See below, "VII. Limita- 
 tions Upon Powekto Make Regulations.") 
 
 Regulations made by the head of a depart- 
 ment piu-suant to statutory authority and in 
 administration thereof, not being demanded by 
 law, are not law in the sense in which that term 
 \3 used in section 356, Revised Statutes. (25 
 Op. Atty. Gen., 183.) 
 
 A departmental regulation relating to internal 
 administration and practice, when not specially 
 authorized or demanded by law, is not law in 
 the sense in which that term is used in section 
 356, Revised Statutes. (18 Op. Atty. Gen., 521.) 
 
 Violation of a regulation may be made 
 criminal offense by statute. — Congress may 
 enact that the violation of certain rules and 
 regulations of the Secretary, not inconsistent 
 with law, which it authorized him to make, 
 should subject property to forfeiture or persons 
 to fine and imprisonment; but such penalties 
 can not be inflicted for violation of a regulation 
 of an executive department without previous 
 legislative sanction. (U. S. v. Butter, 195 Fed. 
 Rep., 657; see also McKirleyt). U. S., 249 U.S., 
 397; Buttfield v. Stranahan, 192 U. S., 470; 
 Union Bridge Co. v. U. S., 204 U. S., 364; U. S. 
 V. Grimaud, 220 U. S., 506; U. S. v. Breen, 40 
 Fed. Rep., 403; U. S. v. Ormsbee, 74 Fed. Rep., 
 208.) Congress has provided that violation of 
 any lawful general order or regulation issued by 
 the Secretary of the Navy shall be punishable 
 by court-martial when the offender is a person 
 in the naval service. (Sec. 1624, R. S., art. 8, 
 clause 20; see also U. S. v. Moody, 164 Fed. 
 Rep., 269.) 
 
 Where a statute made it a crime to bribe an 
 officer of the United States to violate his "lawful 
 duty," the Supreme Court held that bribery of 
 an officer to violate a department regulation 
 was punishable under the statute. (Haas v. 
 Henkel, 216 U. S., 462.) Where the law made 
 it the duty of the Secretary of the Treasury 
 to adjust certain claims, but did not prescribe 
 the manner in which he should obtain the 
 necessary evidence prior to making payments, 
 it was held by the Supreme Court, per Mr. 
 Justice Story, that it devolved upon the Secre- 
 tary by regulations to prescribe what evidence 
 should be furnished in support of claims; that 
 a regulation made by the Secretary requiring 
 the submission of affidavits and authorizing 
 such affidavits to be made before an officer who 
 was not expressly authorized by any law of the 
 United States to administer an oath in support 
 of claims was a valid regulation; and that any 
 person making a false aiiidavit in accordance 
 with such a regulation was guilty of false 
 swearing and punishable as for willful and cor- 
 rupt perjury under an act of Congress then in 
 effect. (U. S. V. Bailey, 9 Pet., 2.38; see also 
 14 Op. Atty. Gen., 420; and see 29 Op. Atty. 
 Gen., 14, and file 26543-87 :2 Apr. 28, 1913, as to 
 affidavits required in Navy cases.) 
 
 Not punishable if regulation invalid. — In 
 a case in which the Secretary of the Interior 
 by regulation required an affidavit to be sub- 
 mitted by a homestead claimant, it was held 
 by the Supreme Court that submitting a false 
 affidavit under such regulation was not perjury 
 within the statute which dealt with "any case 
 in which a law of the United States authorizes 
 an oath to be administered." In its opinion, 
 the court remarked: "Where the charge is of 
 crime, it must have clear legislative basis," 
 citing WilUamson v. U. S., 207 U. S., 425; U. S. v. 
 Keitel, 211 U. S., 370; U. S. v. Eaton, 144 U. S., 
 677; MorrUl v. Jones, 106 U. S., 466; U. S. v. 
 Biggs, 211 U.S. ,507;andDwyeri;. U.S. ,170 Fed. 
 Rep., 160. However, in this case it appeared 
 that the law itself provided what evidence and 
 affidavits should be required of homestead 
 claimants, and that the regulation of the Inte- 
 rior Department added to the statutory require- 
 ment; and tlie court held that this was not an 
 exercise of administrative power, as contem- 
 plated by Congress in authorizing regulations 
 to be made, but was an attempted exercise of 
 legislative powers, as the authority to make 
 regulations did not authorize the Secretary 
 either to abridge or enlarge the statute. (U.S. 
 V. George, 228 U. S., 14.) 
 
 Regulation may operate as contract. — 
 A regidation which has not the force of law, 
 may nevertheless, if not inconsistent wnth law, 
 operate as a contract between the Government 
 and those who work under it, and thereby 
 acquire full force and effect, (Adams t^. U.S., 
 42 Ct. Cls., 191; 13 Comp. Dec, 819; 5 Comp. 
 Dec, 666.) 
 
 The Secretary of the Navy is authorized 
 by this section to issue regulations prescribing 
 the duties of pay officers, and requiring theni to 
 make payments upon certain contingencies. 
 Such regulations must be read as applying only 
 to items fair on their face. In such case an 
 officer refusing to pay would both breach his 
 bond and render himself liable to court-martial, 
 while an officer obeying the regulation can not 
 be held responsible, eitner financially or crimi- 
 nally. The regulation in such case has bind- 
 ing force of law on the accounting officers of the 
 Government. (30 Op. Atty. Gen., 376, 171 S. 
 and A. Memo., 3611, reversing 21 Comp. Dec, 
 554, 357, 245.) 
 
 VII. Limitations Upon Power to Make 
 Regulations. 
 
 Must be consistent with law. — Section 
 161, Revised Statutes, specifically provides 
 that regulations made thereunder shall be 
 "not inconsistent with law.'.' 
 
 Must not usurp power of Congress. — 
 Where a regulation issued by the head of a de- 
 partment amounts to an attempted exercise of 
 the power of legislation, it is invalid (U. S. v. 
 United Verde Copper Co., 196 U. S., 207; U. S. 
 V. George, 228 U. S., 14; 25 Op. Atty. Gen., 249). 
 The head of a department can not by his regu- 
 lations alter or amend a statute; all that he 
 can do is to regulate the mode of proceeding 
 to carry into effect what Congress has enacted. 
 (Morrill v. Jones, 106 U. S., 466; see also U. S. 
 V. Symonds, 120 U. S., 46, 49; U. S. v. Bishop, 
 120 U. S.,51; Campbell v. U. S., 107 U. S.,407; 
 
 198 
 
Executive Departments. PL 2. REVISED STATUTES. 
 
 Sec. 161. 
 
 U. S. V. Garlinger, 169 U. S., 316; Merritt v. 
 Welsh, 104 U. S., 694.) Rights, duties, and ob- 
 ligations defined by statute can not be taken 
 away or abridged bv regulations. (Laurey v. U. 
 S., 32 Ct. Cls., 259") 
 
 Must not be retroactive. — A regulation 
 manifestly can not have a retroactive effect so 
 as to invalidate a claim for services performed 
 before it was in existence. (U. S. v. Da\ds, 
 132 U. S., 334; Taylor v.V. S., 33 Ct. Cls., 393; 
 see also 17. S. v. Macdaniel, 7 Pet. 1, 15; Camp- 
 bell V. U. S., 107 U. S., 407; U. S. v. Ala. R. 
 Co., 142 U. S.,621.) 
 
 Can not prescribe a criminal offense. — A 
 departmental regulation can not prescribe a 
 criminal offense. (U. S. v. Eaton, 144 U. S., 677; 
 U. S. -y. George, 228 U. S., 14; U. S. v. Butter, 
 195 Fed. Rep., 657. But see U. S. v. Bailey, 
 9 Pet., 238; Haas v. Henkel, 216 U. S.,462.) 
 See above, "VI Weight of Regulations." 
 
 Limitation as to persons. — The law does 
 not authorize the head of a department to dic- 
 tate to a civil employee where he shall live (9 
 Op. Atty. Gen., 23); nor can he make regula- 
 tions for the conduct of persons not connected 
 with his department (17 Op. Attv. Gen., 524; 
 16 Op. Atty. Gen., 494; 16 Comp. Dec, 529; 18 
 Comp. Dec, 992; but see U. S. v. Freeman, 3 
 How., 567; Op. Atty. Gen., May 19, 1915, 171 
 S. and A. Memo., 3611; however, persons deal- 
 ing with agents of the government are bound to 
 take notice of the extent of the authority con- 
 ferred by law and regulation upon such agents 
 (Whiteside et al v. tl. S., 93 U. S., 247; Noble 
 V. U. S., 11 Ct. Cls., 608; Lind v. U. S., 49 Ct. 
 Cls., 648). 
 
 Can not change terms of statute. — A 
 regulation can not enlarge the terms of a statute 
 by requiring a public officer to furnish a bond 
 with a condition different from that which the 
 statute called for (U. S. v. Tingey, 5 Pet., 115; 
 Moses V. U. S., 166 U. S., 571); nor by requiring 
 a homestead claimant to furnish affidavits ad- 
 ditional to those required by statute (U. S. v. 
 Eaton,_ 144 U. S., 677); but where a statute 
 authorized publishers to send sample copies 
 through the mails at a reduced rate of postage, 
 without limiting the number of sample copies 
 so sent, a regulation issued by the Postmaster 
 General prescribing the maximum number of 
 sample copies to be so transported at reduced 
 rate was valid. (Lewis Publishing Co. v. 
 Wyman, 182 Fed. Rep., 13.) A regulation can 
 not enlarge or restrict the liability of an officer 
 on his bond (Meads v. U. S., 81 Fed. Rep., 
 684; Smith v. U. S., 170 U. S., 372). A regu- 
 lation may supplement a statute, but can not 
 supersede it. (Roberts v. U. S., 44 Ct. Cls., 411; 
 15 Comp. Dec, 658.) 
 
 The authority to make rules and regulations 
 is to make such administrative regulations as 
 are necessary to carry out the existing law. 
 The right is not given to amend or enlarge the 
 law. (28 Op. Attv. Gen., 389; see also notes to 
 sees. 436 and 1409, R. S.) 
 
 Private debts. — In the absence of statute, 
 no public officer can make the United States 
 an agent or trustee for the collection of private 
 debts between citizens. (Taggart's case, 17 Ct. 
 Cls., 322, compare file 26254-1709.) 
 
 VIII. Rules for Testing Validity op Regu- 
 lations. 
 
 Validity sustained if possible. — In deter- 
 mining whether a regulation promulgated by 
 the head of a department is consistent with law, 
 we must apply the rule of decision which con- 
 trols when an act of Congress is assailed as not 
 being within the powers conferred upon it by 
 the Constitution; that is to say, a regulation 
 adopted under section 161 of the Revised Stat- 
 utes should not be disregarded or annulled 
 unless, in the judgment of the court, it is plainly 
 and palpably inconsistent with law. Those 
 who insist that such a regulation is invalid 
 must make its invalidity so manifest that the 
 court has no choice except to hold that the 
 Secretary has exceeded his authority and 
 employed means that are not at aU appropriate 
 to the end specified in the act of Congress. 
 (Boske V. Comingore, 177 U. S., 459; 29 Op. Atty. 
 Gen., 478.) A regulation must be interpreted, 
 if possible, to harmonize with the law. (Rob- 
 erts V. U. S., 44 Ct. Cls., 411.) 
 
 Valid unless clearly contrary to stat- 
 ute. — In determining whether a regulation 
 issued by the Secretary of the Navy is valid, 
 the only proper inquiry is whether and how far 
 a rule has been laid down by the statute which 
 restrains the disposition of the subject by 
 executive order or department regulation and 
 usage. Unless the laws on the subject posi- 
 tively require a different action, or altogether 
 prohibit that taken, the questions are subject 
 to administrative settlement by the Secretary 
 of the Navy. In other words, the law pre- 
 scribes certain rules on the subject; beyond 
 these rules, executive order, regulation or usage 
 have full scope and play. (25 Op. Atty. Gen., 
 122.) 
 
 Valid when approved by Congress. — A 
 regulation directly approved by Congress has 
 the absolute force of law. (In re Smith, 23 
 Ct. Cls., 459; file 26254-1451:11, Apr. 12, 1915, 
 citing Ex parte Reed, 100 U. S. 22; Smith v. 
 Whitney, 116 U. S., 180, 181; see also Op. 
 Atty. Gen., May 19, 1915, 171 S. and A. Memo., 
 3611.) 
 
 Ratification of Congress implied. — ^\Tien 
 Congress allows a regulation to be formulated 
 and published and carried into effect year after 
 year, the legislative ratification must be im- 
 plied, and it does not comport with national 
 honor to allow such a regulation of an executive 
 department to exist and individuals to acquire 
 rights upon the faith thereof, and then to with- 
 hold payment and question the legality of the 
 regulation. (Maddux v. U. S., 20 Ct. Cls., 193.) 
 Congress has not hesitated to annul Navy regu- 
 lations of which it did not approve, as, for exam- 
 ple, Executive order of November 12, 1908 
 (file 27109), limiting the duty of the Marine 
 Corps to shore stations. (Act Mar. 3, 1909, 35 
 Stat.,_ 773; 27 Op. Atty. Gen., 259.) Hence, 
 inaction by Congress is equivalent to legis- 
 lative sanction of regulations, and should be 
 so regarded in testing the validity of a regu- 
 lation or construing a statute on the same 
 subject. (Maddux v. U. S., above; Benja- 
 min V. U. S., 10 Ct. Cls., 482; file 5262-36 
 May 5, 1910; 15 Op. Atty. Gen., 646,647; 
 
 199 
 
Sec. 161. 
 
 Pt. 2. REVISED STATUTES. Executive Departments. 
 
 see also 22 Op. Atty. Gen., 626; 19 Op. Atty. 
 Gen., 591; file 7657-167, Jan. 17, 1913; 7657- 
 389, Sept. 25, 1916.) Otherwise, however, 
 where there is a direct conflict between the 
 regulation and a statute. (20 Comp. Dec, 
 741.) 
 
 Where regulations have been in force for a 
 number of years and have received the tacit 
 if not express approval of Congress, the court 
 does not leel at liberty to disregard them and 
 hold that they are not authorized by law, even 
 though it "may well be doubted" that they 
 are authorized by law. (Garlinger v. U. S., 30 
 Ct. Cls. 477.) 
 
 IX. Waiver of Regulations. 
 
 Regulations not binding on head of de- 
 partment. — The Supreme Coiut has held that 
 an Army regulation which in terms applies 
 only to persons in the military service does not 
 bind the Secretary of War, as he "is not in the 
 military service in the sense of the regulation, 
 but on the contrary is a civil officer" (U. S. v. 
 Burns, 12 Wall., 246); and the Court of Claims, 
 citing this case, held that Army Regulations, 
 "which are intended for the direction and gov- 
 ernment of the officers and agents of the depart- 
 ment, do not bind the Commander in Chief nor 
 the head of the War Department" (Smith v. 
 U. S., 24 Ct. Cls., 215). 
 
 May be waived by power which, made 
 them. — The above decision of the Court of 
 Claims was cited by the Comptroller of the 
 Treasury (9 Comp. Dec, 280) in holding that a 
 provision of the Army Regulations which was 
 adopted pursuant to and in execution of a stat- 
 ute was one " of ordinary departmental regu- 
 lations, made to administer the annual appro- 
 priations by the heads of departments," and 
 was binding upon the subordinates of the Secre- 
 tary of War so long as he did not abrogate or 
 waive it; but that "you [Secretary of War] are 
 at hberty in my judgment to change, modify, 
 or waive it at your pleasure, always provided 
 that you do not violate some law in your changed 
 or modified regulation, or by such change, 
 modification, or waiver you do not encroach 
 upon or abrogate some contractual right fully 
 vested before notice of such change, modifica- 
 tion, or waiver. " (See also 2 Comp. Dec, 306; 
 3 Comp. Dec, 218; 4 Comp. Dec, 40, 266, 387; 
 6 Comp. Dec, 589.) 
 
 In a decision of the Comptroller of the Treas- 
 ury, July 22, 1899, it was said: "It has been 
 held time out of mind in this oflice * * * by such 
 able lawyers and officers as Whittlesey, Tayler, 
 and Lawrence, not mentioning its later incum- 
 bents, that the authority making a regulation 
 could waive its enforcement, and that any 
 aflirmative act by such power contrary to the 
 provisions of such regulation would be treated 
 as a waiver. " (6 Comp. Dec, GO.) 
 
 WTiere the Secretary of the Navy suspended 
 the operation of a regulation in a particular 
 case, the Comptroller of the Treasury, January 
 8, 1900 (6 Comp. Dec, 589), held that the regu- 
 lation " was waived by the power which made 
 these regulations," and continued: "I know of 
 no law or rule which forbids the head of a de- 
 partment from suspending the operation of a 
 
 regulation similar to this in individual in- 
 stances. The effect of such suspension is to 
 cause a want of uniformity in the operation of 
 these regulations, but if this be a fault it is 
 chargeable to the administration of the regula- 
 tions and does not imply the want of power to 
 so suspend the operation of a regulation in indi- 
 vidual cases." 
 
 " Where a rule or regulation is not the essence 
 of a law, but is simply a vehicle for its proper 
 administration, the authority making such rule 
 or regulation may waive its performance or non- 
 performance." (4 Comp. Dec, 387.) 
 
 Regulations issued by the head of a depart- 
 ment pursuant to statutory authority and in 
 administration thereof can be made or annulled 
 at will and enforced or waived as seems ex- 
 pedient. (25 Op. Atty. Gen., 183.) 
 
 A departmental regulation relating to internal 
 administration and practice, when not specially 
 authorized or demanded by law, is such as the 
 officers of bureaus and departments can make 
 or annul at will or enforce or waive as seems 
 expedient. (18 Op. Atty. Gen., 521.) 
 
 View that regulations can not be 
 waived. — In a decision of the Comptroller of 
 the Treasury, above-cited (9 Comp. Dec, 280), 
 there was quoted an opinion of the Judge Ad- 
 vocate General of the Army showing that his 
 office had " uniformly and consistently held to 
 the view that Army Regulations made in pur- 
 suance of a statute, although subject to modifi- 
 cation by the Secretary of War, are not subject 
 to exceptions or waiver in individual cases by 
 the same authority." The Comptroller did 
 not concur in the Judge Advocate General's 
 opinion in that case. However, in 21 Comp. 
 Dec, 482, it was held that relations "made 
 pursuant to or in execution of a statute, are 
 quasi-legislative, and may be held to become a 
 part of the law and to be of the same force as 
 the statute itself, and though they may be 
 changed by the authority making them they 
 are binding on such authority as well as others 
 so long as they are not changed and exceptions 
 can not be granted to them. The power to 
 make regulations involves the power to alter, 
 amend, modify, or revoke the same, but said 
 action must be general and not by specific ex- 
 ception or waiver, and can only be prospective, 
 not retrospective. The distinction should be 
 made between essential regulations made in aid 
 of a statute, such as are necessary to the execu- 
 tion of the statute, and thus have the appear- 
 ance of being of a decidedly legislative char- 
 acter and regulations which are merely sup- 
 plemental to them and relate to the minor 
 details of the machinery for the execution of 
 the statute. These latter are made in aid of 
 the statute also, but are not of the character 
 referred to and may more properly be termed 
 administrative and directory. The line of de- 
 marcation may not be easily defined but there 
 is a clear distinction between the two classes 
 of regulation." (See also Op. Atty. Gen. to 
 Sec. of Navy, July 19, 1918; file 26254-2476:5.) 
 
 Upon the question whether a provision in the 
 Navy Regulations of 1909 could be waived in an 
 individual case, the Judge Advocate General of 
 the Navy, January 22, 1913 (file 54G0-60), re- 
 marked that said regulation was substantially 
 
 200 
 
Executive Departments. Pt.2. REVISED STATUTES. 
 
 Sec. 162. 
 
 identical with a provision contained in the 
 Navy Regulations which received the express 
 sanction of Congress in the enactment of section 
 1547, Revised Statutes (citing Atty. Gen.'s 
 opinion of Oct. 27, 1909, file 3890-530); that 
 ' ' there are authorities both ways upon the cjues- 
 tion whether a regulation such as the foregoing 
 may be waived in individual cases. The spe- 
 cific question has never been decided by the 
 Supreme Court of the United States"; and for 
 these and other reasons, recommended that the 
 regulation in ciuestion be not waived. 
 
 A regulation which has been specifically ap- 
 proved and adopted by Congress, and has thus 
 been placed on the footing of legislative enact- 
 ments, can be altered only oy Congress and can 
 not be waived by the Secretary of the Navy or 
 the President. (13 Op. Atty." Gen., 10; in re 
 Smith, 23 Ct. Cls., 452; IMaddux v. U. S., 20 
 Ct. Cls., 193; file 26509-106.) 
 
 The waiver of a regulation, the same as the 
 revocation or amendment thereof, can not, how- 
 ever, be given a retroactive effect so as to dis- 
 turb vested rights. (U. S. v. Mardaniel, 7 
 Pet., 1, 15; Campbell v. U. S., 107 U. S., 407.) 
 
 Necessity of President's authority to 
 waive. — The ('omptroller of the Treasury has 
 announced the principle that regulations pro- 
 mulgated by the President may be waived by 
 the head of a department; for the heads of the 
 several departments "are the eyes and hands 
 of the President, to execute the laws and his 
 executive rules and regulations; their acts are 
 in a sense his acts; when they waive a regu- 
 lation, he waives it; for they act for and repre- 
 sent the power and authority of the President." 
 (6 Comp. Dec, 60.) 
 
 In the case of Navy Regulations issued under 
 section 1547, Revised Statutes, it has been held 
 that if they may be waived in any case, express 
 authority of the President for such waiver is 
 necessary, for the principle is recognized in the 
 decisions that regulations can be waived only 
 by the authority which made them, and the 
 President and the Secretary of the Navy both 
 act in issuing regulations under section 1547, 
 
 Revised Statutes. (File 5460-60.) [In6Gomp. 
 Dec. 589, it was held that a regulation issued 
 under section 1547, Revised Statutes, might be 
 waived by the Secretary of the Navy, who was 
 "the power which made these regulations." 
 At the time said decision was rendered, this 
 statement of the Comptroller was literally true, 
 as the regulations in question were not expressly 
 approved by the President. Section 1547 was 
 afterwards construed by the Attorney General 
 (25 Op. Atty. Gen., 270) to require the express 
 appro\-al of the President, both for the issuing 
 of regulations thereunder, and the making of 
 changes and alterations therein, which opinion 
 has ever since been followed in practice, 
 although it was later held by the Court of 
 Claims that regulations issued by the Secretary 
 of the Navy under section 1547, Revised Stat- 
 utes, are presumed to have been issued with 
 the approval of the President, though they do 
 not bear his signature (Adams v. U. S., 42 Ct. 
 Cls., 211; file 3980-1044, Mar. 19, 1915.)] 
 
 Evidence of waiver. — Usually an approval 
 of an act by the head of a department, where a 
 rule or regulation has not been complied with, 
 is sufficient evidence of its waiver. (4 Comp. 
 Dec, 387; 6 Comp. Dec, 60.) 
 
 In Arthur i;. U. S., 16 Ct. Cls., 433, the Court 
 of Claims held that the Army Regulations were 
 obligatory \ipon the Surgeon General of the 
 Army; and where that officer, with the acqui- 
 escence of the Secretary of War and of the ac- 
 counting officers, repeatedly disregarded such 
 regulations in practice during a period of many 
 years, this did not constitute a legal custom and 
 operate to annul the regulations in question. 
 In this case, however, the court stated that it 
 was unnecessary to decide whether the Secre- 
 tary of War's approval of contracts varying 
 ^'om the regulations had the effect of suspend- 
 ing their operation in the individual cases. 
 
 Policy of Navy Department.— On May 5, 
 1909, the Secretary of the Navy (Meyer) an- 
 nounced that "The department is averse to 
 waiving the provisions of the regulations except 
 in cases of great necessity". (File 17789-10.) 
 
 Sec. 162. [Hours of business.] From the first day of October until ttie 
 first day of April, in each year, all the Bureaus and offices in the State, War, 
 Treasury, Navy, and Post-Office Departments, and in the General Land-Office, 
 shall be open for the transaction of the public business at least eight hours in 
 each day; and from the first day of April until the first day of October, in each 
 year, at least ten hours in each day; except Sundays and days declared public 
 holidays by law.— (4 July, 1836, c. 352, s. 12, y. 5, p. 112; 20 June, 1874, c. 
 328, V. 18, 'p. 109.) 
 
 Closing the departments for deceased ex-officials 
 is prohibited by act of March 3, 1893, section 
 4 (27 Stat., 715). Draping of biulding in 
 mourning is prohibited by the same act, 
 sections (27 Stat., 715). 
 
 The public buildings are to be kept open dur- 
 ing stated hom-s for the transaction of pub- 
 lic business. (Palmer's case, 17 Ct. Cls., 
 230, 234; argument for United States.) 
 "Days declared public holidays by 
 
 law." — The following days in each year are 
 
 holidays in the District of Colimibia "for all 
 
 purposes," viz., the first day of January, com- 
 monly called New Year's Day; the twenty- 
 second day of February, known as Washing- 
 ton's Birthday; the Fourth of July; the thir- 
 tieth day of May, commonly called Decoration 
 Day; the first Monday in September, known as 
 Labor's Holiday; the twenty-fifth clay of De- 
 cember, commonly called Christmas Day; 
 every Saturday after twelve o'clock noon ; any 
 day appointed or recommended by the Presi- 
 dent of the United States as a day of public 
 fasting or thanksgiving; and the day of the 
 
 201 
 
Sec. 164. 
 
 Ft. 2. REVISED STATUTES. Executive Departments. 
 
 inauguration of the rresiclent, in every fourth 
 year. (District of Cohimbia Code, act Mar. 3, 
 IWl, sec. 1389, 31 Stat., 1404; amended by act 
 June 30, 1902, 32 Stat., 543.) 
 
 Every Saturday after 12 o'clock noon in the 
 District of Oohimlna is one of the days declared 
 })ublic holidays by law. Consequently, heads 
 of departments are not obliged to require labor 
 of employees after the hour of noon on Satur- 
 days. (25 Op. Atty. Gen., 40j see also Adams 
 V. U. S., 42 Ct. Cis.", 191.) 
 
 The "hours of business" as fixed by this 
 section were, by act of June 20, 1874 (18 Stat., 
 109), also made the maximum hours of labor 
 which could be required of employees in the 
 de])artmeuts. The act cited read as follows: 
 
 "That it shall be the duty of heads of the 
 several executi%-e departments, and of the 
 heads of the respective bureaus therein, in the 
 interests of the public service, to require of all 
 clerks of class one and above, and of chiefs of 
 divisions, such hours of labor as may be deemed 
 necessary for the proper dispatch of the public 
 business, not exceeding, however, the time for 
 which said departments are by law required 
 to be open for business, any usage to the con- 
 
 trary notwithstanding." (See 25 Op. Atty. 
 Gen., 40.) 
 
 The "hours of labor" of employees in the 
 de])artmeuts are now fixed at not less than 
 seven, "except Sundays and days declared 
 public holidays by law or Executive order," by 
 act of March 3, 1893 (27 Stat., 715), as amended 
 by act of March 15, 1898, section 7 (30 Stat., 
 316). See 22 Op. Atty. Gen., 472, 474, as to 
 pay of employees "during the temporary sus- 
 pension of actual work in the departments in 
 obedience to an Executive order." See also 
 22Comp. Dec, 425. 
 
 Hours of labor for Government laborers, 
 workmen, and mechanics are fixed at eight by 
 section 3738, Revised Statutes, and act of Au- 
 gust 1, 1892 (^27 Stat., 340), and amendments 
 thereto.. 
 
 Heads of departments are required to extend 
 hours of labor in certain cases, when public 
 business is in arrears. (Act Mar. 3, 1893, 27 
 Stat., 715, as amended by act Mar. 15, 1898, 30 
 Stat., 317). 
 
 By Naval Instructions (art. 82) the usual 
 hours of labor for clerks in the Navy Depart- 
 ment are fixed at from 9 a. m. to 4.30 p. m. 
 
 Sec. 163. [Classification of Department clerks.] Tlie clerks in the Depart- 
 ments shall be arranged in four classes, distinguished as the first, second, 
 t'hird, and fourth classes.— (3 Mar., 1853, c. 77, s, 3, v. 10, p. 209; 3 Mar., 1855, 
 c. 175, s. 4, V. 10, p. G69; 15 Aug., 1876, c. 287, s. 3, v. 19, p. 169.) 
 
 For compensation allowed clerks of these four 
 classes see section 167, Revised Statutes. 
 Other provisions concerning the classi- 
 fication of clerks are contained in section C, 
 act January 16, 1883, "to regulate and improve 
 the civil service of the United States"(22 Stat., 
 405). Pursuant to said act a classification of the 
 civil service, based upon section 163, Revised 
 Statutes, was adopted by each head of a de- 
 partment and Government establishment by 
 direction of the President on June 9, 1896. It 
 arranges officers and employees, other than 
 mere laborers and persons whose appointments 
 are confirmed by the Senate, in classes accord- 
 ing to annual salary or compensation, as follows: 
 
 A. Less than §720. 
 
 B. $720 or more and less than |840. 
 
 C. $840 or more and less than $900. 
 
 D. $900 or more and less than $1,000. 
 
 E. $1,000 or more and le.-^s than $1,200. 
 
 1. $1 ,200 or more and loss than $1,400. 
 
 2. $] ,400 or more and less than $1,600. 
 
 3. $1,600 or more and less than $1,800. 
 
 4. $1,800 or more and less than $2,000. 
 
 5. $2,000 or more and less than $2,500. 
 
 6. $2,500 or more. 
 
 The classification further provides that no 
 person appointed as a laborer without examina- 
 tion under the rules shall be assigned to work of 
 the same grade as that perfonned by classified 
 employees, and no person shall be admitted to 
 any place not excepted from examination by 
 the rules until he shall have passed an appropri- 
 ate examination before the Civil Service Com- 
 mission and his eligibility has been certified to 
 the appointing officer hy the commission. 
 (Report of United States Civil Service Commis- 
 sion, 1912, p. 128; art,. 53, Naval Instructions.) 
 
 The Railway Mail Service has a different 
 classification, prescribed by section 1402, Re- 
 vised Statutes, as amended by an act approved 
 August 24, 1912 (37 Stat., 555), and a different 
 classification of certain employees under the 
 Post Office Department is prescribed by act 
 of March 2, 1907 (34 Stat., 1206). 
 
 Sec. 164. [Examinations for appointment. Repealed.] 
 
 This section provided as follows: "Sec. 
 164. No clerk shall be appointed in any de- 
 partment in either of the four classes above des- 
 ignated until he has been examined and found 
 qualified by a board of tliree examiners, to con- 
 sist of the chief of the bureau or office into 
 which such clerk is to be appointed and two 
 other clerks to be selected by the head of the 
 department." (3 Mar., 1853, c. 97, s. 3, v. 10, 
 p. 209; 3 Mar., 1855, c. 175, s. 4, v. 10, p. 669.) 
 
 It was repealed by act of Jsnuary 16, 1883 
 (22 Stat., 403), which act provides for examina- 
 tions to be conducted by the Civil Service 
 Commission. (18 Op. Atty. Gen., 245.) 
 
 See also provision of section 1753, Revised 
 Statutes, authorizing President to prescribe 
 regulations for admission to the ci\'il service; 
 and see sections 1754 and 1755 as to preference 
 of persons disabled in the military or naval 
 service. 
 
 202 
 
Executive Departments. Pt. 2. REVISED STATUTES. 
 
 Sec. 166. 
 
 Sec. 165. [Clerkships open to women.] Women may, in the discretion of the 
 head of any Department, be appointed to any of the clerkships therein author- 
 ized by law, upon the same requisites and conditions, and \vith the same com- 
 pensations, as are prescribed for men. — (12 July, 1870, c. 251, s. 2, v. 16, pp. 
 230, 250.) 
 
 See sec. 167 R. S. 
 
 Sec. 166. [Distribution of clerks, temporary detail.] Each head of a Depart- 
 ment may, from time to time, alter the distribution among the various bureaus 
 and offices of his Department, of the clerks and other employees allowed by 
 law, except such clerks or employees as may be required by law to be exclu- 
 sively engaged upon some specific work, as he may find it necessary and proper 
 to do, but all details hereunder shall be made by written order of the head of the 
 Department, and in no case be for a period of time exceeding one hundred and 
 twenty days. Provided, That details so made may, on expiration, be renfewed 
 from time to time by written order of the head of the Department, in each 
 particular case, for periods of not exceeding one hundred and twenty days. 
 All details heretofore made are hereby revoked, but may be renewed as provided 
 herein. 
 
 Thig section was amended to read as above by 
 section 3 of the act of May 28, 1896 (29 Stat.*, 
 179). Originally it provided as follows: 
 "Sec. 166. Each head of a department may 
 from time to time alter the distribution 
 among the various bureaus and offices of his 
 department of the clerks allowed by law, as 
 he may find it necessary and proper to 
 do."— (3 Mar., 1853, c. 97, s. 3, v. 10, p. 
 211.) 
 
 Heads of departments are required to make 
 annual report to Congress of employees de- 
 tailed to other offices. (Act Mar. 2, 1895, 
 sec. 7, 28 Stat., 808.) 
 
 By the legislative, executive, and judicial ap- 
 propriation act of March 3, 1917 (39 Stat., 
 1098) and other years, it was provided that 
 all employees appropriated for in the Office 
 of Naval Records and Library "shall be 
 exclusively engaged on the work of this 
 office during the fiscal year" for which 
 the appropriations were made. 
 
 As to delegation of duties required by law to 
 be performed by "head of the department" 
 see note to sections 161 and 177, Revised 
 Statutes, and 19 Op. Atty. Gen., 133. 
 
 For references to laws concerning detail of em- 
 ployees from executive departments to the 
 Ci"\dl Service Commission, from executive 
 departments to the office of the President 
 of the United States, from duty outside of 
 the District of Columbia to duty in the 
 executive departments in the District of 
 Columbia, and concerning transfer of em- 
 ployees from one department to another 
 department, see note to section 169, Re- 
 vised Statutes. 
 
 Expenditures for personal services in the Navy 
 Department from appropriations made for 
 the naval service, are restricted by the 
 naval appropriation act of June 4, 1920 
 (41 Stat., 833), the legislative, executive, 
 and judicial appropriation act of March 3, 
 1921 (41 Stat., 1287), and by similar acts 
 for other years. 
 
 Scope of section. — This section as amended 
 restricts the detail of employees to the depart- 
 ment in which they are regularly employed. 
 From a consideration of other laws bearing on 
 the subject (sees. 3678 and 3682, R. S.; act Aug. 
 5, 1882, sec. 4, 22_Stat., 255) it seems clear that 
 Congress has strictly limited the power and 
 discretion of a head of department in this mat- 
 ter of employment and detail to cases falling 
 within the amended section 166, Revised 
 Statutes. (25 Op. Atty. Gen., 302.) 
 
 But see, 30 Op. Atty. Gen., 131, holding that 
 "there appears to be notliing in the statutes 
 which proliibits the head of a department from 
 permitting a clerk of his department to render 
 additional services, withoutextra compensation 
 the necessity for which arises in his or in other 
 departments." Specifically it was held in this 
 case that the disbursing clerk of one depart- 
 ment might legally be designated to disburse 
 moneys for another department, pending the 
 appointment of a disbursing clerk as authorized 
 by law for the latter department. 
 
 Payment of clerks transferred. — In mak- 
 ing distribution of clerks among the various 
 bureaus and offices in accordance with this sec- 
 tion, care should be taken that in no case shall 
 any such clerk be paid from any appropriation 
 made for contingent expenses or for any specific 
 or general purpose, unless such payment is 
 specifically provided for in the law granting the 
 appropriation. (20 Op. Atty. Gen., 750.) The 
 use of contingent appropriations for clerical 
 compensation is restricted by section 3682, Re- 
 vised Statutes, and by act of August 5, 1882, 
 section 4 (22 Stat., 255). 
 
 "Chiefs of divisions" of the Department of 
 Agriculture are "clerks" within tlie language 
 of this section. (20 Op. Atty. Gen., 703; see 
 also note to sec. 169, R. S.) 
 
 Increasing- and diminishing clerks of dif- 
 ferent grades. — By act of August 15, 1876, sec- 
 tion 3 (19 Stat., 169), it was provided: "That 
 whenever, in the judgment of the head of any 
 department, the duties assigned to a clerk of one 
 
 54641°— 22- 
 
 ■14 
 
 203 
 
Sec. 167. 
 
 Pt.2. REVISED STATUTES. Executive Departments. 
 
 at a different rate of pay or in excess of the num- 
 bers authorized by appropriations made by 
 Congress be, and thev are hereby, repealed." 
 See also 19 Comp. Dec, 708.] 
 
 WTiere the position of disbursing clerk in a 
 bureau was established by Congress, and has 
 since been regularly appropriated for, such 
 position must be regarded as essential to the 
 organization of the bureau in question, and 
 until Congress otherwise provides it would be 
 "inconsistent with law," within the meaning 
 of section 161, Revised Statutes, for the head 
 of the department to transfer the duties for- 
 merly performed by such disbursing clerk to 
 the disbursing clerk of the department to which 
 the bureau is attached. (29 Op. Atty. Gen., 
 247.) See, in this connection, 30 Op. Atty. 
 Gen., 131, noted above, under "Scope of 
 section." 
 
 class can be as well performed by a clerk of a 
 lower class or by a female clerk, it shall be lawful 
 for him to diminLsh the number of clerks of the 
 liigher grade and increase the number of the 
 clerks of the lower grade within the limit of the 
 total appropriation for such clerical service," etc. 
 [This provision is apparently repealed by the 
 act of August 5, 1882, section 4 (22 Stat.,'255), 
 which act in part provides as follows: "That no 
 civil officer, clerk * * * or other em- 
 ployee shall, after the first day of October next, 
 be employed in any of the executive depart- 
 ments, or subordinate bureaus or offices there- 
 of at the seat of government, except only at 
 such rates, and in such numbers, respectively, 
 as may be specifically appropriated for by Con- 
 gress for such clerical and other personal serv- 
 icer for each fiscal year. * * * And all laws 
 and parts of laws authorizing the employment 
 of officers, clerks * * * or other employees 
 
 Sec. 167. [Salaries of persons employed in the Departments.] The aimual 
 salaries of clerks and employes in the Departments, whose compensation is 
 not otherwise prescribed, shall be as follows: 
 
 First. To clerks of the fourth class, eighteen hundred dollars. 
 
 Second. To clerks of the third class, sixteen hundred dollars. 
 
 Third. To clerks of the second class, fourteen hundred dollars. 
 
 Fourth. To clerks of the first class, twelve hundred dollars. 
 
 Fifth. To the women employed in duties of a clerical character, subor- 
 dinate to those assigned to clerks of the first class, including copyists and 
 counters, or temjDorarily employed to perform the duties of a clerk, nine hun- 
 dred dollars. 
 
 Sixth. To messengers, eight hundred and forty dollars. 
 
 Seventh. To assistant messengers, seven hundred and twenty dollars. 
 
 Eighth. To laborers, seven hundred and twenty dollars. 
 
 Ninth. To watchmen, seven hundred and twenty dollars. 
 
 (3 Mar., 1853, c. 97, s. 3, v. 10, pp. 209, 211; 22 Apr., 1854, c. 52, s 1, v. 
 10, p. 276; 18 Aug., 1856, Res. 18, v. 11, p. 145; 23 July, 1866, c. 208, s. 6, 
 V. 14, p. 207; 12 July, 1870, c. 251, s. 3, v. 16, pp. 230, 250.) 
 
 As to classification of department clerks, see sec- 
 tion 163, Revised Statutes,and note thereto. 
 
 EmplojTnent and compensation of women — see 
 section 16.5, Re\nsed Statutes. 
 
 This section is modified by act of March 4, 1913, 
 section 2 (37 Stat., 790), fixing the pay of 
 telephone-switchboard operators, assistant 
 messengers, firemen, watchmen, laborers, 
 and charwomen. 
 
 Rules for di\'ision of time and computation of 
 pay, in the cases of persons in the civil 
 service whose stated compensation is an- 
 nual or monthly, are gi^-en in the act of June 
 30, 1906, section 6 (34 Stat., 763). Similar 
 rules for computation in cases of persons 
 in the Army are contained in the act of 
 June 12, 1906 (34 Stat., 248). 
 
 Congress has pro\'ided that appropriations made 
 in the annual legislative, executive, and 
 judicial appropriation act are not to be 
 used for compensation of any person inca- 
 pacitated otherwise than temporarily for 
 performing service. (Act Mar. 3, 1917, 
 sec. 3, 39 Stat., 1121.) 
 
 Annual report to Congress of employees "below 
 a fair standard of efficiency" is required 
 by act of July 11, 1890 (26 Stat., 268). 
 Compensation may be paid in certain cases 
 where employee is injured in course of em- 
 ployment. (Act Sept. 7, 1916, 39 Stat., 
 742.) 
 An employee of the Government is 
 entitled to the compensation allowed by 
 law, and is not limited by the amount appro- 
 priated by Congress. (Graham's case, 1 Ct. 
 Cls., 380.) 
 
 ^^^lere one statute establishes the salary of 
 an officer at $5,000 and another appropriates 
 only $3,600 therefor, and the latter contains no 
 provision repealing acts inconsistent and none 
 declaring that payment of the amounts appro- 
 priated shall be in full compensation, it is sim- 
 ply a case of inadequate appropriation, and the 
 officer can recover the difference. (French's, 
 Case, 16 Ct. Cls., 419.) 
 
 The compensation of pubUc officers depends 
 upon general and continuing laws, irrespective 
 of the annual appropriation acts. (Collins v. 
 
 204 
 
Executive Departments. Ft. 2. REVISED STATUTES. 
 
 Sec. 169. 
 
 U. S., 15 Ct. CLs., 22; see also Briggs. v. U. S., 15 
 Ct. Cls., 48; Freedmau's Bank v. U. S., 16 Ct. 
 Cls., 19.) 
 
 A statute wliicli fixes the annual salary of 
 a public officer at a designated sum without 
 limitation as to time, is not abrogated or sus- 
 pended by subsequent enactments appropriat- 
 ing a less amount for his ser\ices for a particular 
 fiscal year, but containing no words which 
 expressly or impliedly modify or repeal it. 
 (U. S. V. Langston, 118 U. S., 389; Vulte's case, 
 47 Ct. Cls., 324, 327, 233 U. S., 509, 514; 20 
 Comp. Dec, 821; 22 Comp. Dec, 691.) 
 
 Where a salary is fixed by statute, and by 
 inadvertence or mistake an inadequate sum 
 is appropriated, no intention to reduce the 
 compensation can be imputed. But where 
 Congress by prospective appropriation acts 
 gives notice to officers that their salaries will be 
 reduced, and this notice is given before the 
 service is rendered, and the intention is clear, 
 the legislative will must be given effect. This 
 would not apply to services performed before 
 the appropriation act was passed. (Dyer v. 
 U. S., 20 Ct. Cls., 171, distinguishing Graham's 
 case. See also sec. 169 and note.) 
 
 Where the words "in full compensation" are 
 contained in an appropriation act where the 
 amount appropriated is less than the salary 
 fixed ])y law, such words have a clear, distinct, 
 and well-understood signification, which can 
 not be overlooked or argued out of the act. 
 (Fisher v. U. S., 15 Ct. Cls., 323; U. S. v. Fisher, 
 109 U. S., 143; see also U. S. v. Mitchell, 109 
 U. S., 146.) 
 
 The failure of Congress to make specific ap- 
 propriation for the salary of the disl)ursing clerk 
 of a department would not appear to be an in- 
 superable objection to the appointment of such 
 clerk in view of section 176, Revised Statutes, 
 which fixes the total compensation of such 
 appointee until otherwise provided by Congress. 
 (30 Op. Atty. Gen., 130.) 
 
 The whole ciuestion depends on the intention 
 of Congress as expressed in the statutes. (Bel- 
 knap V. U. S. 150 U. S., 594, quoting U. S. v. 
 TVIitchell, 109 U. S., 146, 150, and holding that 
 ' ' the payment to an Indian agent of the amount 
 appropriated by Congress for the payment of 
 his salary being less than the amount fixed by 
 general law as the salary of the office, and liia 
 receipt of the sum paid ' in full of my pay for 
 services for the period herein expressed', is a 
 full satisfaction of the claim." See also Dun- 
 woody V. U. S., 143 U. S., 578; Wallace v. U. S., 
 133 U. S., 180; Kidder v. U. S. 20 Ct. Cls., 46; 
 Francis v. U. S., 22 Ct. Cls., 403.) 
 
 [Act of August 5, 1882, section 4 (22 Stat., 255), 
 provides that no persons shall be employed in 
 any executive department except at such rates 
 and in such numbers as may be specifically 
 appropriated for by Congress. By legislative, 
 executive, and judicial appropriation act of 
 July 16, 1914, section 6 (38 Stat., 509), it is pro- 
 vided that "the rates of salaries or compensa- 
 tion of officers or employees herein appropriated 
 shall constitute the rate of salary or compensa- 
 tion of such officers or employees, respectively, 
 until otherwise fixed by annual rate of appro- 
 priation or other law."] 
 
 Sec. 168. [Temporary clerks.] Except when a different compensation is 
 expressly prescribed by law, any clerk temporarily employed to perform the 
 same or similar duties with those belonging to clerks of either class, is entitled 
 to the same salary as is allowed to clerks of that class. — (22 April, 1854, c. 52, 
 s. 1, V. 10, p. 276.) 
 
 Any person temporarily appointed under cer- 
 tain circmnstances to perform the duties of 
 a pay officer in the Navy during a vacancy 
 shall be entitled to receive the pay of such 
 grade while so acting. See sections 1381 
 and 1564, Revised Statutes. 
 
 Section 242, Revised Statutes, provides that 
 "No clerk temporarily employed in the 
 
 Department of the Treasury shall receive 
 a greater compensation than at the rate of 
 $1,200 a year for the time actually em- 
 ployed." 
 See section 171, Revised Statutes, as to em- 
 ployment of extra clerks during sessions of 
 Congress. 
 
 Sec. 169. [Appointment, number, and compensation of employes author- 
 ized.] Each head of a Department is authorized to employ in his Department 
 such number of clerks of the several classes recognized by law, and such mes- 
 sengers, assistant messengers, copyists, watchmen, laborers, and other employes, 
 and at such rates of compensation, respectively, as may be ajij^ropriated for by 
 Congress from year to year. — (Ex parte Hennen, 13 Pet. 230; 3 Mar. 1875, c. 129, 
 V. 18, ff. 360, 361, and 365; 3 Mar., 1875, c. 130, ss. 2, 3, v. 18, f. 399.) 
 
 See note to section 166, re distribution of clerks 
 and temporary details. 
 
 Employment of persons beyond appropriations 
 made by law is prohibited by act of August 
 5, 1882, section 4 (22 Stat., 255), and act 
 of August 15, 1876, section 5 (19 Stat., 
 169). 
 
 Expenditures beyond appropriations prohibited 
 by section 3679, Revised Statutes. 
 
 Acceptance of voluntary service prohibited, 
 except in sudden emergencies. (Act Mav 
 1, 1884, 23 Stat., 17; act Mar. 3, 1905, 33 
 Stat., 1257; and act Feb. 27, 1906, 34 
 Stat., 49.) 
 
 205 
 
Sec. 169. 
 
 rt.2. REVISED STATUTES. Executive Departments. 
 
 Salaries paid from "lump sum" appropriations 
 can not be increased except under certain 
 prescribed conditions. (Act Aug. 2G, 1912, 
 sec. 7, 37 Stat., (52(5, as amended l)v act 
 Mar. 4, 1913, sec. 4, 37 Stat., 790; 19 Comp. 
 Dec, 184, 270, 303, 569, 578, 789; 20 Comp. 
 Dec, 9, 128, 131.) 
 
 Oath of office prior to appointment is prescribed 
 by section 1757, Revised Statutes, ae 
 amended. 
 
 Employees serving for a less period than a year 
 are limited to the maximum pro rata rate 
 proA^ded bv law for the time thev mav be in 
 service. (Sec.2GS7, R.S.; 27 Op.\A.tty.Gen., 
 358; Marston v. U. S., 71 Fed. Rep., 496.) 
 
 Civil employees paid from appropriations for 
 the military or naval establishment or other 
 branch of t'he public service outside of Dis- 
 trict of Columbia can not be detailed for 
 duty in any division of any executive de- 
 partment in the District of C'olumbia. (Act 
 June 22, 1906, sec. 6, 34 Stat., 449; similar 
 pro\'ision is contained in act of Aug. 5, 
 1882, sec 4, 22 Stat., 255.) 
 
 Classified employees not to be detailed for 
 duty outside of District of Columbia at 
 expense of appropriations in legislative, 
 executive and judicial act, except for 
 duty pertaining directly to their work at 
 seat of Government. (Act May 10, 1916, 
 sec. 5, 39 Stat., 120.) 
 
 Expenditures for personal services in the Navy 
 Department from appropriations made for 
 the naval service. (See note to section 
 166, R. S.) 
 
 The emplojTnent of enlisted men of the Marine 
 Corps on clerical duty at headquarters of 
 the Marine Corps is permitted by law. 
 (File 4600, Apr. 10, 1906; 21686, Apr. 11, 
 1906.) 
 
 Detail of employees from the executive depart- 
 ments to the Civil Service Commission for 
 duty in the District of -Columbia is pro- 
 hibited by act of March 4, 1913 (37 Stat., 
 750); 20 Comp. Dec, 106. 
 
 Temporary detail of employees in executive 
 departments to office of President of the 
 United States is authorized by act of 
 March 4, 1913 (37 Stat., 749). 
 
 Transfer of employees from one department to 
 another department is restricted bv act 
 of June 22, 1906, section 5(34 Stat.,' 449), 
 as amended bv acts of October 6, 1917 (40 
 Stat., 383), and March 28, 1918 (40 Stat.. 
 498). 
 
 As to payment of employees temporarily de- 
 tailed to other departments, see 22 Comp. 
 Dec, 145, and section 3678, Revised Stat- 
 utes. 
 
 For number and compensation of employees 
 authorized by appropriations of Congress, 
 in accordance with this section, to be em- 
 ployed in the Xavv Department, see act of 
 July 16, 1914 (38 Stat., 403) and subsequent 
 appropriation acts. See also section 416, 
 Revised Statutes, which specified number 
 and compensation of certain principal em- 
 ployees who "shall be" in the Navy De- 
 partment; and section 6, legislative, execu- 
 tive, and judicial appropriation act of July 
 16, 1914 (38 Stat., 509), providing that "'the 
 rates of salaries or compensation of officers 
 
 or employees herein appropriated shall con- 
 stitute the rate of salary or compensation 
 of such oflicers or employees, respectively, 
 until othervvi.se fixed by annual rate of 
 appropriation or other law." 
 The word "employ" as used in this section 
 is equivalent to "appoint" (21 Op. Atty. Gen., 
 355. 3(53). 
 
 The expression "clerks of the several 
 classes recognized by law," as used in this 
 section, is not limited in its effect to the four 
 main classes of clerks mentioned in sections 163 
 and 167, Revised Statutes, but has always been 
 treated as including chiefs of division, chief 
 clerks, and disbursing clerks of the various de- 
 partments. Accordingly, held that the chief 
 clerk, chiefs of bureaus, and translator in the 
 State Department are all "clerks" within the 
 meaning of this section, and are to be appointed 
 by the Secretary of State. (21 Op. Atty. Gen., 
 363.) In this case the so-called "bureaus" in 
 the State Department were originally estab- 
 lished by regulation, and although recognized 
 by (Congress in appropriation acts they were not 
 bureaus within the meaning of section 178, Re- 
 vised Statutes. The Attorney General said: 
 The word ' ' bureau, ' ' like many others, is loosely 
 used in the revision, the terminology of the 
 codified statutes not having been made entirely 
 definite and uniform. 
 
 The position of chief of the division of Alaska 
 fisheries in the Bureau of Fisheries ($3,500) was 
 established by an appropriation item, silent as 
 to how or by \vhom the position should be filled. 
 The general character of his duties is not unlike 
 that of chiefs of divisions generally in the sev- 
 eral executive departments. Accordingly, 
 held that appointment should be made by head 
 of the department. (29 Op. Atty. Gen., 116.) 
 This section was unquestionably intended to 
 have a very comprehensive scope, and to em- 
 brace a variety of subordinate officers in the 
 different departments, besides those designated 
 as clerks of the first, second, third, and fourth 
 classes; and in view of the fact that section 169 
 is a standing provision it is also fair to assume 
 that Congress did not intend it to be limited to 
 the classes of clerks "recognized by law" at the 
 time of the revision. (29 Op. Atty. Gen., 116.) 
 Engravers, electrotypers, photographers 
 (Coast and (leodetic Survey), and also physi- 
 cists, assistant physicists, assistant chemists, 
 laboratory assistants, aids, and superintendent 
 of mechanical plant (Bureau of Standards), fall 
 within the provisions of this section and should 
 be appointed by the head of the department. 
 Wliile they are in the main positions requiring 
 technical skill, they are "clerks" within the 
 meaning of section 169. (29 Op. Atty. Gen., 
 116; approving 15 Op. Atty. Gen., 6.) 
 
 In the Navy Department the solicitor, the 
 chief clerk of the department, and the chief 
 clerks of the different bureaus are in practice 
 appointed by the Secretary of the Navy in ac- 
 cordance with this section. The appointment 
 of disbursing clerks is specifically provided for 
 by section 176, Revised Statutes. 
 
 A local agent at Seattle, Wash., should be 
 employed by the head of the department under 
 this section. I am advised informally by the 
 Bureau of Fisheries that his duties are to be 
 strictly clerical. (29 Op. Atty. Gen., 116.) 
 
 206 
 
Executive Departments. rt. 2. REVISED STATUTES. 
 
 Sec. 169. 
 
 This section does not invest the head of the 
 Treasury Department with authority to appoint 
 certain deputy bureau officers authorized by law 
 in tliat departmen t ; but their api:)ointment must 
 be made under the Constitution by the Presi- 
 dent, with the advice and coubent of the Senate. 
 (See Constitution, Art. II, sec. 2, par. 2.; 15 
 Op. Atty. Gen., 3; 26 Op. Atty. Gen., 627.) 
 
 The office of Deputy Commissioner of Fish- 
 eries, at an annual salary of $3,000, created by 
 an item in an appropriation act, which failed 
 to specify how or by whom the appointment 
 should be made, or to prescribe its duties, 
 should be filled by the President, by and with 
 the advice and consent of the Senate. In the 
 absence of an express enactment to the con- 
 trary the appointment of any officer of the 
 United States belongs to the President and 
 Senate (citing 6 Op. Atty. Gen., 1; 15 Op. Atty. 
 Gen.,3, 449; 17 Op. Atty. Gen., 532; 18 Op. Atty. 
 Gen., 98, 298; 26 Op. Atty. Gen., 627). The 
 title of the office in this case necessarily implies 
 a power to perform all the duties which might 
 be performed by the Commissioner of Fisheries, 
 the nature of whose duties is defined by statute, 
 and whose appointment is vested in the Presi- 
 dent, by and with the advice and consent of 
 the Senate. Accordingly, held that a Deputy 
 Commissioner of Fisheries appointed by the 
 head of the department was not legally ap- 
 pointed, his status being that of a de facto 
 officer. (29 Op. Atty. Gen., 116.) 
 
 The positions of assistant salmon agent 
 ($1,800), salmon warden ($1,200), and deputy 
 wardens ($600), must be filled by the President, 
 by and with the advice and consent of the 
 Senate. There is no express statutory author- 
 ity giving the head of the department power to 
 make such appointments. These are officers 
 whose duties are manifestly not clerical, nor 
 can they be considered otherwise within the 
 scope of section 169, Revised Statutes. (29 
 Op. Atty. Gen., 116.) 
 
 The sole responsibility of every appoint- 
 ment in a department rests upon the head of 
 that department, except where the power to 
 appoint is otherwise specially provided for by 
 statute. The power of appointment carries 
 with it the power of removal. These powers, 
 being discretionary, can not be delegated 
 by the head of the department, though he may 
 inquire, investigate, and determine by the aid 
 of subordinates; but the final determination 
 must be his act and not theirs. (21 Op. Atty. 
 Gen., 355; 29 Op. Atty. Gen., 274. See note 
 to sec. 177, R. S.) 
 
 The power of appointment, especially where 
 fixed by statute in the head of the department, 
 can not be delegated to subordinates without 
 authority of Congress; but where Congress au- 
 thorizes the chief clerk of a department to sign 
 official papers during the temporary absence of 
 the Secretary and Assistant Secretaries of the 
 department, this is sufficient authority to sign 
 appointment of a special disbursing agent, 
 although the law required such agents be ap- 
 pointed bv the head of the department. (29 
 Op. Atty. Gen., 273.) 
 
 The written appointment of the Secretary of 
 the Navy, or his approval in writing, is required 
 for the employment of any clerk, etc., in the 
 
 Navy Department. (Art. 52, Naval Instruc- 
 tions, 1913.) 
 
 Appointments made by the heads of bu- 
 reaus in accordance with statute are presumed 
 to be made with approval of the head of the 
 department, and are made by the head of a 
 department within the meaning of section 2, 
 Article II, of the Constitution. (Price v. 
 Abbott, 17 Fed. Rep., 506; Frelinghuvsen v. 
 Baldwin, 12 Fed. Rep., 396; Stanton f). Wilke- 
 son, 22 Fed. Cas. No. 13299; Ekiu v. U. S., 
 142 U. S., 651.) 
 
 A substitute clerk can not be employed 
 in place of a clerk in the Navy Department on 
 leave without pav. (15 Comp. Dec, 856; com- 
 pare Chisolm V. tJ. S., 27 Ct. Cls., 94.) 
 
 A substitute clerk can be employed 
 under a rule of the Civil Service Commission, 
 if approved by the President, where such em- 
 ployment would impose no additional expendi- 
 ture upon the Government, i. e., where the 
 regular clerk is temporarily absent without pay. 
 And such a rule would not be contrary to the 
 act of August 5, 1882, section 4 (22 Stat., 255). 
 (19 Op. Atty. Gen., 507.) 
 
 An employee entering upon duty on 
 the last day of a month which has 31 days 
 can not lawfully be paid for services rendered 
 on that day. (20 Comp. Dec, 165, affirming 
 13 Comp. Dec, 64 and 75; see also 20 Comp. 
 Dec, 772, 867.) 
 
 Date of appointment. — An appointment 
 made to take effect at a prior date is inoperative 
 prior to the date on which it was actually made 
 and accepted. (8 Comp. Dec, 521; 20 Comp. 
 Dec, 214, citing Morey v. U. S., 35 Ct. Cls., 603; 
 Jackson v. U. S., 42 Ct. Cls., 39; 17 Comp. Dec, 
 452.) 
 
 An appointment to office is an act done, a 
 direct exercise of power in some particular 
 direction, not necessarily evidenced in writing 
 but none the less complete at a particular point 
 of time; and until the act is done it remains 
 undone. Something more than the act of ap- 
 pointment also is necessary to invest the person 
 appointed with the office and to give him the 
 right to compensation. It must be accepted, 
 and it is not understood how an appointment 
 can be accepted, either formally or impliedly, 
 before it has been made. (8 Comp. Dec, 
 521; Lee v. U. S., 45 Ct. Cls., 62.) 
 
 Acceptance is a distinct act from the 
 appointment. — The appointment is the sole 
 act of the appointing power; the acceptance is 
 the sole act of the officer, and is in plain com- 
 mon sense posterior to the appointment. As 
 he may resign, so may he refuse to accept; but 
 neither the one nor the other is capable of 
 rendering the appointment a nonentity. (Mar- 
 bury V. Madison, 1 Cranch., 137.) 
 
 Acceptance is necessary to vest the office in 
 the appointee, and a formal acceptance is the 
 evidence which in the public service generally, 
 it has been customary to require. (12 Op. 
 Atty. Gen., 229.) But where a former officer of 
 the Army asked the President in writing to re- 
 instate him under an act of Congress, and the 
 President did so, no further formal acceptance 
 was necessary. (Collins ti. U. S., 15 Ct.Cls., 31.) 
 
 Execution of the oath of office may be re- 
 garded as an acceptance of the office. (8 Comp. 
 Dec, 521; 19 Op. Atty. Gen., 284.) 
 
 207 
 
Sec. 171. 
 
 Pt.2. REVISED STATUTES. Executive Departments. 
 
 Expiration of appointment. — ^^^lere the 
 appointment ifl to tenninato, nncler its terms, 
 upon the happening of an event which is un- 
 certain, notice to the employee of its happening 
 is necessary to entl his contract of employment, 
 notwithstanding the prior occurrence of the 
 event which fixed the termination. (20 Comp. 
 Dec, 149.) 
 
 Right to compensation. — A salary that is 
 established by statute can not be increased or 
 diminished by executive ofiicers. (Adams v. 
 U. S., 20 Ct. Cla., 115; Dyer v. U. S., 20 Ct. 
 Cls., 166.) 
 
 A jniblic officer may recover the lawful com- 
 pensation of his office, notwithstanding that he 
 accepted a less amount and receipted in full 
 therefor. (Adams v. U. S., 20 Ct. Cls., 115; 
 quoted with approval, Glavey v. U. S., 182 
 U. S., 607.) 
 
 It is not within the power of the head of a 
 department to reduce or change the salary of 
 
 scribed; and an agreement to that effect, being 
 contrary to public policy, will not be enforced 
 or given effect as an estoppel. (Miller v. U. S., 
 103 Fed. Rep., 413; Glavey v. U. S., 182 U. S., 
 605. (See also notes to sees. 166 and 167, 
 Revised Statutes.) 
 
 There is no legal necessity for the re- 
 appointment of the present inciunbents of 
 offices where there appears to be no evidence 
 that Congress intended to abolish the existing 
 positions and create new ones. The mere crea- 
 tion of a new administrative division in which 
 such positions are placed does not establish 
 new offices. The existing offices are continued . 
 (29 Op. Atty. Gen., 116; compare 21 Comp. 
 Dec, 49.) 
 
 A new appointment is not made necessary 
 merely by reason of an increase in the salary of 
 an office. (29 Atty. Gen., 116; citing 1 Comp. 
 Dec, 267; 1 Comp. Dec, 313; 3 Comp. Dec, 336; 
 compare 4 Comp. Dec, 28.) 
 
 an officer which Congress has specifically pre- 
 
 Sec. 170. [Extra compensation to clerks restricted.] No money shall be 
 paid to any clerk employed in either Department at an annual salary, as com- 
 pensation for extra services, miless expressly authorized by law. — (3 Mar., 1863, 
 c. 97, s. 3, V. 10, pp. 209, 211; 17 June, 1844, c. 105, s. 1, v. 5, pp. 681, 687; 
 28 Feb., 1867, Res. 30, s. 2, v. 14, p. 569.) 
 
 also by act of March 4, 1907 (34 Stat., 1372), 
 providing that, "To enable the Secretary 
 of the Treasury to effect a change in the 
 methods of bookkeeping in the Treasury 
 Department, and to install a double entry 
 system of bookkeeping, 15,000, or so much 
 thereof as may be necessary, is hereby ap- 
 propriated, to remain available until ex- 
 pended; said sum to be used by the Secre- 
 tary of the Treasury, as he shall determine, 
 in payment for services of such of the force 
 of the Division of Bookkeeping and War- 
 rants of the Treasury Department as may 
 be needed to carry the change into effect, 
 notwithstanding the provisions of sections 
 170, 1763, 1764, and 1765 of the Revised 
 Statutes." 
 
 Compensation for extra services "which any 
 officer or clerk may be required to per- 
 form," imless expressly authorized by law, 
 is prohibited by section 1764, Revised 
 Statutes. See that section and note 
 thereto. 
 
 Compensation not to be charged by persons in 
 departments for administering oaths of 
 office to emplovees on appointment or 
 promotion. (Act Aug. 29, 1890, 26 Stat., 
 371.) 
 
 This section was expressly modified by act of 
 March 3, 1879 (20 Stat., 384), which author- 
 ized the Secretary of the Treasury to pay 
 additional compensation to clerks of his 
 department during that year, for work done 
 "in addition to the usual business hours;" 
 
 Sec. 171. [Employment of extra clerks during sessions of Congress.] No 
 extra clerk shall be employed in any Department, Bureau, or office, at the seat of 
 Government, except durmg the session of Congress, or when indispensably 
 necessary in answering some call made by either House of Congress at one 
 session to be answered at another; nor then, except by order of the head of the 
 Department in which, or in some Bureau or office of which, such extra clerk 
 shall be employed. And no extra clerk employed in either of the Departments 
 shall receive compensation except for time actually and necessarily employed, 
 nor any greater compensation than three dollars a day for copying, or four 
 dollars a day for any other service. — (26 Aug., 1842, c. 202, s. 15, v. 5, p. 526; 
 15 Aug., 1876, c. 287, s. 5, v. 19, p. 169.) 
 
 In connection with this section consult 
 
 actof August 5,1882, section 4 (22 Stat., 255), and 
 act of August 15, 1876, section 5 (19 Stat., 169), 
 which acts prohibit employment of clerks, etc., 
 by heads of departments beyond appropriations 
 made by law. Although the former act ex- 
 pressly repealed section 172, Revised Statutes, 
 it contained no specific reference to this sec- 
 
 tion. Section 3682, Revised Statutes, and actof 
 August 5, 1882, section 4 (22 Stat., 255), restrict 
 use of contingent and miscellaneous appropria- 
 tions for clerical compensation. 
 
 This section was repealed (according to 
 the Comptroller) by the act of August 5, 1882, 
 section 4 (22 Stat., 255). (Comp. Dec, Oct. 28, 
 1915, file 26254-1906.) 
 
 208 
 
Executive Departments. Ft. 2. REVISED STATUTES. 
 
 Sec. 176. 
 
 Sec. 172. [Restriction on employment of messengers and laborers, 
 pealed.] 
 
 Re- 
 
 by law, or is necessary to carry into effect some 
 object for which an appropriation has been 
 specifically made."— (26 Aug., 1842, c. 202, e. 
 15, V. 5, p. 526.) 
 
 It was repealed by act of August 5, 1882, 
 8ection4 (22 Stat., 255; 25 Op. Atty. Gen., 302.) 
 
 This section was as follows: " Sec. 172. 
 No messenger, assistant messenger, laborer, nor 
 other subordinate assistant shall be employed 
 in any department, bureau, or office at the seat 
 of Government, or paid out of the contingent 
 fund appropriated to such department, bureau, 
 or office, unless such employment is authorized 
 
 Sec. 173. [Duties of chief clerks, supervising subordinates.] Each chief 
 clerk in the several Departments, and Bureaus, and other offices connected 
 with the Departments, shall supervise, under the direction of his immediate 
 superior, the duties of the other clerks therein, and see that they are faithfully 
 performed.— (26 Aug., 1842, c. 202, s. 13, v. 5, p. 525.) 
 
 the exercise of his many and varied and impor- 
 tant duties and responsibilities, he has an office 
 force, super\ised by the chief clerk of the 
 department, which is required to determine 
 and pass upon all matters requiring his action 
 which, by law or regulation, are not otherwise 
 required to be handled. (File 22353-13.) 
 
 For authority of chief clerks to administer oaths 
 
 of office, see act of August 29, 1890 (26 Stat., 
 
 371.) 
 For authority of chief clerk to act as chief of 
 
 bureau, see section 178, Revised Statutes. 
 As to meaning of "chief clerk" see note to 
 
 section 178, Revised Statutes. 
 Chief Clerk, Navy Department.— To fa- 
 cilitate and aid the Secretary of the Navy in 
 
 Sec. 174. [Duties of chief clerks ; monthly reports, etc.] Each chief clerk 
 shall take care, from time to time, that the duties of the other clerks are distrib- 
 uted with equality and uniformity, according to the nature of the case. He shall 
 revise such distribution from time to tune, for the purpose of correcting any 
 tendency to undue accumulation or reduction of duties, whether arising from 
 individual negligence or incapacity, or from increase or diminution of particular 
 kinds of business. And he shall report monthly to his superior officer any 
 existing defect that he may be aware of in the arrangement or dispatch of 
 business.— (26 Aug., 1842, c. 202, s. 13, v. 5, p. 525.) 
 
 Heads of departments are required to make 
 quarterly reports to the President of the 
 condition of business by act March 15, 1898, 
 section 7 (30 Stat., 316.) 
 
 Condition of business is required to be reported 
 monthly to head of department by chiefs 
 of bureaus and offices, by act of March 15, 
 1898 (30 Stat., 317). In the Navy Depart- 
 ment a report of condition of business is 
 required quarterly from bureaus and offices. 
 (Art. 11, Naval Instructions.) 
 
 Sec. 175. [Action on reports of chief clerks.] Each head of a Department, 
 chief of a Bureau, or other superior officer, shall, upon receiving each monthly 
 report of his chief clerk, rendered pursuant to the preceding section, examine 
 the facts stated therein, and take such measures, in the exercise of the powers 
 conferred upon him by law, as may be necessary and proper to amend any 
 existing defects in the arrangement or dispatch of business disclosed by such 
 report.— (26 Aug., 1842, c. 202, s. 13, v. 5, p. 525.) 
 
 see. 5, 27 Stat., 715, as amended by act 
 Mar. 15, 1898, 30 Stat., 317.) 
 
 Heads of departments are required to extend 
 hours of labor in certain cases when public 
 business is in arrears. (Act Mar. 3, 1893, 
 
 Sec. 176. [Disbursing clerks.] The disbursing clerks authorized by law 
 in the several Departments shall be appointed by the heads of the respective 
 Departments, from clerks of the fourth class; and shall each give a bond to the 
 United States for the faithful discharge of the duties of his office according to 
 law in such amount as shall be directed by the Secretary of the Treasury, and 
 
 209 
 
Sec. 176. 
 
 Pt.2. REVISED STATUTES. Executive Departments. 
 
 with sureties to the satisfaction of the Solicitor of the Treasury; and shall 
 from time to time renew, strengthen, and increase liis ollicial bond, as the 
 Secretary of the Treasury may direct. Each disbursing clerk, except the 
 disbursmg clerk of the Treasury Department, umst, when directed so to do by 
 the head of the Department, superintend the buildmg occupied by his Depart- 
 ment. Each disbursing clerk is entitled to receive, in compensation for his 
 services in disbursing, such sum in addition to his salary as a clerk of the fourth 
 class as shall make his whole annual compensation two thousand dollars a 
 year.— (3 Mar., 1853, c. 97, s. 3, v. 10, pp. 209, 211; 3 Mar., 1855, c. 175, s. 4, 
 V. 10, p. 669; 3 Mar., 1873, c. 226, s. X, v. 17, p. 485 (492).) 
 
 The salary of the disbursing clerk in the Navy 
 Department was lixed at §2,250 per annum 
 by act of May 29, 1920 (41 Stat., 663), and 
 appropriation acts for prior yeai-s. Specific 
 provision for salary of a disbursing clerk in 
 the Navy Department was omitted in the 
 appropriation act of March 3, 1921 (41 
 Stat.. 1282), the position of "disbursing 
 officer" at $3,000 per annum having in the 
 meantime been created from lump sum 
 appropriations. (See Estimates of Appro- 
 priations, 1922, p. 102.) 
 
 The appointment of a superintendent for the 
 State, War, and Na\y Department Build- 
 ing, by detail from officers of the Army or 
 Navy, is provided for by act of March 3, 
 1883 (22 Stat., 553). See note to section 
 415, Revised Statutes. 
 
 Temporary appointment in case of absence or 
 sickness of disbursing clerk is authorized 
 by act of March 4, 1909 (35 Stat., 1027). 
 
 The emplojTnent of special disbursing agents 
 is provided for by section 3614, ile^dsed 
 Statutes. (30 Op. Atty. Gen., 132.) 
 
 Disbursing agents abroad are not to be employed 
 for naval ser\'ice, under contract or other- 
 wise, unless they hold appointments con- 
 firmed by tlxe Senate. (Sec. 1550, R. S.) 
 
 Duty of disbursing officers to examine pay- 
 rolls and vouchers. (Act Aug. 23, 1912, 37 
 Stat., 375.) 
 
 Disbursing officers may apply for and obtain 
 decision of Comptroller of the Treasury 
 concerning legahty of proposed payments 
 (act July 31, 1894, sec. 8, 28 Stat., 208); 
 and may appeal to Comptroller of the Treas- 
 ury from disallowances in their accounts by 
 auditor. (Same act and section.) 
 
 On general subject of accounting, see section 
 236, Revised Statutes, and note thereto. 
 
 All books, papers, and other matters relating to 
 the office or accounts of disbursing officers 
 of the executive departments shall at all 
 times be subject to inspection and exami- 
 nation by the Comptroller of the Treasury, 
 and the auditor of tlie Treasury authorized 
 to settle such accounts, or by the duly 
 authorized agents of either of said officials. 
 (Act Feb. 19, 1897, 29 SUit., 550. )_ 
 Disbursing officers are required to furmish heads 
 of departments with certain data for annual 
 reports to Congress (sec. 193, R. S.) and are 
 required to make annual report to the 
 Secretary of the Treasury of checks out- 
 standing for three years or more. (Sec. 
 310, R. S.) 
 
 Secretary of the Treasury is required to report 
 annually to Congress disbursing officers 
 delinquent in rendering accounts. (Act 
 May 28, 1896, 29 Stat., 179.) 
 
 Embezzlement — on general subject of, see sec- 
 tions 86-96, Criminal Code, act of March 4, 
 1909 (35 Stat., 1105, 1106), and note to sec- 
 tion 1624, Revised Statutes, article 14. 
 
 Advances of public money are prohibited by 
 section 3648, Remed Statutes; and such 
 unauthorized advances are punishable as 
 embezzlement under section 87, Criminal 
 Code, act of March 4, 1909 (35 Stat., 1109). 
 
 A disbursing officer who fails safely to keep 
 public moneys in his care is guilty of em- 
 bezzlement. (Sec. 88, Criminal Code, act 
 Mar. 4, 1909, 35 Stat., 1105. See note to 
 sec. 1624, R. S., art. 14.) 
 
 A disbursing officer who deposits money in a 
 bank not designated as a depository in 
 accordance with sections 3620 and 3639, 
 Revised Statutes, is liable with his sureties 
 for any loss that may arise from the failure 
 of such bank (20 Op. Atty. Gen., 24); and 
 his conduct in depositing public money in 
 a place not authonzed by law is punishable 
 as embezzlement under section 87, Crimi- 
 nal Code, act of March 4, 1909 (35 Stat., 
 1105) ; and the conduct of the banker or offi- 
 cers of the bank in knowingly recei\ing 
 such money on deposit is also punishable 
 as embezzlement by section 96, Criminal 
 Code, act of March 4, 1909 (35 Stat., 1106). 
 
 Disbursing officers are prohibited by law from 
 exchanging Government funds in their 
 control for other funds, with certain excep- 
 tions. Head of department is required im- 
 mediately to suspend from duty any dis- 
 bursing officer who \'iolates tliis proliibi- 
 tion, and make report to the President to 
 the end that such disbursing officer may be 
 promptly removed from office or restored 
 to duty. (Sees. 3639 and 3651, R.S.) And 
 such unauthorized exchange of Govern- 
 ment funds is punishable as embezzlement 
 under section 89, Criminal Code, act of 
 March 4, 1909 (35 Stat., 1105). See note t<i 
 section 1624, Revised Statutes, article 14. 
 
 Taking receipt for larger sum than paid is 
 punishable as embezzlement under sections 
 86 and 95, Criminal Code, act of March 4, 
 1909 (35 Stat., 1105, 1106). 
 
 Trading in Federal or State funds is punishable 
 under section 103, Criminal Code, act of 
 March 4, 1909 (35 Stat., 1107). 
 
 210 
 
Executive Departments. Pt. 2. REVISED STATUTES. 
 
 Sec. 176. 
 
 Failure in rendering accounts as provided by 
 law is punishable as embezzlement by sec- 
 tion 90, Criminal Code, actof March 4, 1909 
 (35 Stat., 1105); other proceedings against 
 delinquent officer are provided for by sec- 
 tions 3625-3638, Revised Statutes, and acta 
 of July 31, 1894 (28 Stat., 206), and May 28, 
 1896, section 4 (29 Stat., 179). 
 
 Embezzlement of public or private money or 
 property, keeping false accounts, or making 
 false returns shall be punished by fine and 
 imprisonment by any court, civil or mili- 
 tary, having jurisdiction. (Sec. 5306, R. S.) 
 
 All moneys received by any officer for the 
 United States must be promptly paid into 
 the Treasury, without deduction (sec. 3617, 
 R. S.); officers violating tliis requirement 
 shall be removed from office and forfeit 
 moneys withheld (sec. 3619, R. S.); and 
 such failure to deposit public money 
 when required so to do is punishable as em- 
 bezzlement. (Sec. 91, Criminal Code, act 
 Mar. 4, 1909, 35 Stat., 1105.) But see note 
 to section 236, Revised Statutes, under 
 "Set-Off." 
 
 Any officer of United States who sells for a 
 premium any Treasury note or other pubUc 
 security not his own property, without ac- 
 coiinting for such premium, shall be forth- 
 with dismissed from office. (Sec. 3652, R. S.) 
 
 Disbursing officers are not allowed to take re- 
 ceipts for payments by check; nor dupli- 
 cate receipts for cash payments; nor to re- 
 quire a receipt in advance of actual pay- 
 ments. (Na\-y Regs., 1913, art. R-4303.) 
 
 Disbursing officers are not allowed to pay ex- 
 pense connected with any commission or 
 inquiry, except courts-martial or courts of 
 inquiry in the mihtary or naval service, 
 unless special appropriation therefor la 
 made by law. (Sec. 3681, R. S.) 
 
 No money can be paid to any bonded officer as 
 compensation who is in arrears to the United 
 States. (Sec. 1766, R. S.) 
 
 Upon application to Court of Claims, disbursing 
 officers may be relieved of responsibihty 
 for losses incurred without fault or neglect 
 on their part. (Judicial Code, act Mar. 3, 
 1911, sees. 145, 147, 36 Stat., 1136, 1137.) 
 
 Settlement of outstanding checks and accounts 
 of disbursing officers. (See sees. 306-310, 
 R. S., and arts. R-433 et seq.. Navy Regs. 
 1913.) 
 
 Lost checks, procedure with reference to. (See 
 sees. 3646, 3647, R. S.; act Feb. 23, 1909, 
 35 Stat., 643, and art. R-4337, Navy Regs., 
 1913.) 
 
 Laws and decisions concerning bonds — for 
 complete reference to, see section 1383, Re- 
 vised Statutes, and note thereto. 
 
 The President is authorized to increase the 
 sums for which bonds are required by law 
 of all naval agents and other officers em- 
 ployed in the disbursement of public 
 money under direction of the Navy De- 
 partment. (Sec. 3639, R. S ) 
 
 It is expressly provided by law that the United 
 States shall not pay any part of the pre- 
 mium or other cost of furnishing a bond, 
 required by law or otherwise, of any officer 
 or employee of the United States. (Act 
 Aug. 5, 1909, 36 Stat., 118, 125.) 
 
 Guaranty companies may be accepted as sole 
 surety on bonds. (Act Aug. 13, 1894, sees. 1 
 and 3, 28 Stat., 279; 27 Op. Atty. Gen. ,627.) 
 
 Historical note. — It appears to have been 
 originally designed that no demand for the pay- 
 ment of money by the United States should be 
 paid until a claim or account therefor had been 
 audited and certified by the accounting officers. 
 But early in the history of the Government a 
 practice grew up, without express authority of 
 law, of employing agents to disburse moneys 
 appropriated for various objects. Subsequent- 
 ly disbursing officers were expressly authorized 
 by statute and in 1853 were provided for the 
 several departments. (4 Comp. Dec, 334.) 
 
 Compensation of disbursing officers. — 
 The disbursing clerk of a department is not en- 
 titled to any commission over and above the 
 amount of liis salary for keeping and disbursing 
 the funds of liis department, and other services 
 enunaerated. (10 Op. Atty. Gen., 31.) 
 
 This section does not authorize the hc^ad of a 
 department to diminish or take away the salary 
 of a disbursing clerk as fixed by another pro- 
 vision of law. (Dunwoody v. U. S., 143 U. S., 
 578; 22 Ct. Cls., 269.) 
 
 Departmental regulations can not enlarge 
 or restrict the Liability of an officer on his bond. 
 (Meads v. United States, 81 Fed. Rep., 684.) 
 
 The expense incurred by an officer in 
 furnishing bond required by law of all dis- 
 bursing officers of the Government is not a 
 proper charge against the Government, even 
 though the officer serves without compensa- 
 tion. (2 Comp. Dec, 262; U. S. v. Van Duzee, 
 140 U. S., 171; see also 30 Op. Atty. Gen., 129.) 
 
 The premium allowed to be charged on 
 bonds of disbursing officers is limited by act 
 of August 5, 1909 (36 Stat., 125). This act does 
 not apply to bonds of acting or deputy disburs- 
 ing clerks. (27 Op. Atty. Gen., 624; 28 Op. 
 Atty. Gen., 28.) 
 
 A bond furnished to the United States 
 by the disbursing officer in a department takes 
 effect on the date when it is accepted by the 
 Government. (Moses v. United States, 166 U. 
 S., 571.) 
 
 Pay of disbursing officer may commence 
 prior to furnishing bond — that is, upon accept- 
 ance of appointment or entering upon duty — 
 the same as other officers. (16 Op. Atty. Gen., 
 38; U. S. V. Eaton, 169 U. S., 346; Glavey v. 
 U. S., 182 U. S., 595; U. S. v. Bradley, 10 Pet., 
 343; U. S. V. Linn, 15 Pet., 290. But see note 
 to sec. 1383, R. S., and 21 Comp. Dec, 49, 51.) 
 
 The failure of Congress to make specific 
 appropriation for the salary of the disbursing 
 clerk of a department would not appear to be an 
 insuperable objection to the appointment of 
 such clerk in view of this section, which fixes 
 the total compensation of such appointee until 
 otherwise provided by Congress. (30 Op. Atty. 
 Gen., 130.) 
 
 The head of a department has power to 
 demand a bond from an officer appointed to 
 a place of trust, although there is no statutory 
 authority to take such bond. It was held in 
 United States v. Tingey (5 Pet., 115) that the 
 United States had the right to take a bond to 
 insure the faithful performance of duty on the 
 part of an individual or officer where such bond 
 was voluntarily given and was not in violation 
 
 211 
 
Sec. 177. 
 
 Pt.2. REVISED STATUTES. Executive Departments. 
 
 of any provision of law; but that no officer of 
 the Goveruraont has a right, under color of his 
 ollice, to require from any subordinate officer. 
 as a condition of holding office, that he should 
 execute a bond " with a condition different 
 from that prescribed by law." The power of 
 the Goveriunent to take bonds in cases where 
 not required by any law or regulation, but only 
 by direction of the head of a department, was 
 recognized ag-ain in United States v. Bradley 
 (10 Pet., 343, 359) . The term " voluntary bond " 
 does not mean that it must have been offered 
 and pressed upon the Government when never 
 asked for or demanded by it. It is a voluntary 
 bond wlien it is not demanded by any particu- 
 lar statute or regulation based thereon, and 
 when it is not exacted in violation of any law 
 or valid regulation of a department. The Gov- 
 ernment in such cases has the right to demand 
 a bond, in the al^sence of any law; but can not 
 extort a bond from a reluctant officer with a 
 condition therein contained different from that 
 which a statute calls for. (Moses v. U. S., 166 
 U. S., 571; see also U. S. v. Maurice, 2 Brock., 96, 
 26 Fed. Cas. No. 15747; Jessupr. U. S., 106 U. S., 
 147; U. S. V. Rogers, 28 P^ed. Rep., 607; 6 Op. 
 Atty. Gen., 24; and see note to sec. 1383, R.S.). 
 
 The authority of disbursing oflB.cers of 
 executive departments to make payments 
 is restricted to the payment of fixed salaries, 
 bills for supplies purchased and approved, and 
 other similar demands which do not requne for 
 the ascertainment of their validity the exercise 
 of judicial functions in weighing e\idence or in 
 the application of general principles of law. 
 (4 Comp. Dec, 336, 337.) 
 
 Responsibility of disbursing ofi&cers. — 
 The rule that the Government can not be held 
 responsible for the mistakes of its agents in- 
 cludes mistakes of law as well as mistakes of 
 fact, where made by disbursing officers, and as 
 to such officers the policy of the Government 
 has been to acknowledge no payments as made 
 on its behalf save those whicn were authorized 
 by law. If a disbursing officer makes a mistake 
 of law, the pa\Tnent is disallowed when his 
 accountr^ come in for settlement and charged 
 to him as if the money were still in his hands. 
 (McKee v. U. S., 12 Ct. Cls., 532, explaining 
 McElrath's case, 12 Ct. Cls., 201. See further, 
 note to sec. 236, R. S.) 
 
 Disbursing officers can avoid responsibility 
 by applying to the Comptroller of the Treasury 
 for an advance decision in cases where they 
 may have doubts. (7 Comp. Dec, 271. t 
 
 Sec. 177. [Vacancies in head of Department; how temporarily filled.] In 
 case of the death, resignation, absence, or sickness of the head of any De- 
 partment, the first or sole assistant thereof shall, unless otherwise directed 
 by the President, as provided by section one hundred and seventy-nine, 
 perform the duties of such head until a successor is appointed, or such 
 absence or sickness shall cease. — (23 July, 1868, c. 227, s. 1, v. 15, p. 168.) 
 
 The accounts of disbursing officers never 
 being closed, the accounting officers may re- 
 adjust their accounts at any time. (Stevens v. 
 U. S., 41 Ct. Cls., 344. See further, note to sec. 
 236, R. S.) 
 
 A disbursing officer is not responsible for 
 illegal payments made by him in good faith 
 and in accordance with the certificate of another 
 officer as to the facts. An ajjpropriation being 
 under the control of the head of a department, 
 it is within the latter's power to prescribe rules 
 to govern the disbursing agent in making dis- 
 bursements therefrom. (9 Comp. Dec, 545; 
 see also Maj. Smith's Case, 23 Ct. Cls., 452; 
 21 Comp. Dec, 314; Comp. Dec, Nov. 21, 1914, 
 file 26254-1672; 21 Comjj. Dec, 357; file 26251- 
 1451:5, Oct. 31, 1914; file 26254-1451:11, Apr. 
 12, 1915; Op. Atty. Gen., May 19, 1915, 171 
 S. and A. Memo., 3611.) 
 
 Under ordinary circumstances it is the duty 
 of a disbursing officer to pay clerks and employ- 
 ees as set out on the properly certified pay rolls 
 presented to them for payment, but a payment 
 should never be made by a disbursing officer 
 untQ properly certified. The head of a bureau, 
 through his timekeeper and the appointment 
 division of his department, is supposed to have 
 the information upon which the pay rolls are 
 made up, and is necessarily in possession of the 
 information requisite to make the proper certifi- 
 cate thereto, which the disbursing officer is not, 
 nor can he be. (8 Comp. Dec, 776, 785; see also 
 20 Comp. Dec, 859.) 
 
 For other cases see note to section 285, 
 Revised Statutes. 
 
 Abolishing the position. — ^Tiere the posi- 
 tion of disbursing clerk in a bureau was estab- 
 lished by Congress, and has since been regu- 
 larly appropriated for, such position must be 
 regarded as essential to the organization of the 
 bureau in question, and until Congress other- 
 wise provides, it would be "inconsistent with 
 law," within the meaning of section 161, Re- 
 vised Statutes, for the head of the department 
 to transfer the duties formerly performed by 
 such disbursing clerk to the disbursing clerk of 
 the department to which the bureau is attached . 
 (29 Op. Atty. Gen., 247.) 
 
 The disbursing clerk of one department 
 might legally be designated to disburse 
 moneys for another department, pending the 
 appointment of a disbursing clerk as authorized 
 by law for the latter department. (30 Op. Atty. 
 Gen., 131.) 
 
 See limitation contained in section 180, Re- 
 vised Statutes. 
 
 As to vacancy in office of Attorney General, or 
 his absence or disability, see section 347, 
 Revised Statutes. 
 
 "Death, resignation, absence, or sickness." 
 As to construction of these words, see note 
 to section 179, Revised Statutes. 
 
 In case of the absence of both the Secretary and 
 Assistant Secretary of the Navy, ' ' the Chief 
 of Naval Operations shall be next in suc- 
 cession to act as Secretary of the Navy." 
 (Act Mar. 3, 1915, 38 Stat., 929; see file 
 22724-40, Apr. 24, 1919.) 
 Power inherent in President. — The power 
 
 of the President to make temporary appoint- 
 
 212 
 
Executive Departments. Pt. 2. REVISED STATUTES. 
 
 Sec. 178. 
 
 ment in all such cases is a constitutional one. 
 The power was exercised by the President in 
 regard to the heads of departments in cases in 
 which the law was silent. In the most ques- 
 tionable of the cases, that of Attorney General, 
 whose quasi judicial functions especially would 
 seem to require to stand on legislative authority, 
 proof exists in the files of the 'Department of 
 Justice that temporary appointment was made 
 by the President prior to the enactment of 
 statutory authority therefor. But a general 
 provision of law is desirable to remove all 
 doubt on the subject. (6 Op. Atty. Gen., 
 351, 352.) 
 
 There can be no question that the President 
 has the fundamental right as Chief Executive 
 to make such temporary appointment, designa- 
 tion, or assigmnent of one oiBcer to perform the 
 duties of another whenever the administration 
 of the Government requires it; otherwise the 
 Government would be menaced with a serious 
 interruption of its administration. (25 Op. 
 Atty. Gen., 258. But see contra 27 Op. Atty. 
 Gen., 344;seealso 28 Op. Atty. Gen., 487; and 
 see note to sec. 1381, R. S.) 
 
 Authority of assistant. — The signature of 
 a "first or sole assistant" as the acting head of 
 a department, w-hen attached to a document of 
 that department, implies that one of the con- 
 ditions provided in section 177, Revised Stat- 
 utes, which authorizes him to act in that ca- 
 pacity, had arisen. (Marsh v. Nichols, 128 
 U. S., 615; U. S. V. Twining, 132 Fed. Rep., 129.) 
 
 It is clear that, in the absence of the head of 
 a department, the authority with which he is 
 invested can be exercised by the officer who, 
 under the law, becomes for the time acting 
 secretary. (Ryan v. U. S., 136 U. S., 81.) 
 
 Under the provisions of this section and sec- 
 tion 161, Revised Statutes, the head of a depart- 
 ment has authority to assign certain of his duties 
 
 Sec. 178. [Vacancies in subordinate offices.] In case of the death, resigna- 
 tion, absence, or sickness of the chief of any Bureau, or of any officer thereof 
 whose appointment is not vested in the head of the Department, the assistant 
 or deputy of such chief or of such officer, or if there be none, then the cliief clerk 
 of such Bureau, shall, unless otherwise directed by the President, as provided 
 by section one hundred and seventy-nine, perform the duties of such chief or of 
 such officer until a successor is appointed or such absence or sickness shall 
 cease.— (23 July, 1868, c. 227, s. 2, v. 15, p. 168.) 
 
 • to the assistant head thereof, and in the absence 
 or sickness of the head of a department such 
 assistant head may lawfully perform his duties 
 in respect to such matters which have to be 
 determined, settled, and adjudicated in that 
 department. And it not appearing to the con- 
 trary, it must be presumed that a legitimate 
 authority existed for official acts performed by 
 the assistant. (Shillito v. McClung, 51 Fed. 
 Rep., 872; Parish ^;. U. S., 100 U. S., 500; U. S. 
 V. Adams, 24 Fed. Rep., 348; Chadwick v. U. S., 
 3 Fed. Rep., 756; U. S. v. Peralta, 19 How., 347.) 
 Where the assistant head of a department per- 
 forms a duty required by law of the head of the 
 department, it will be presumed, in the ab- 
 sence of evidence to the contrary, that he was 
 performing a duty in accordance with law. 
 (P>anklin^Sugar Refining Co. v. U. S., 178 Fed. 
 Rep., 743.) \\Tiere an appeal was heard and 
 decided by the assistant head of a department, 
 it will be presumed, the contrary not appearing, 
 that the Assistant Secretary was lawfully exer- 
 cising the Secretary's powers, as he was author- 
 ized to do by this section. (In re Jem Yuen, 
 188 Fed. Rep., 350, 354; see U. S. v. Redfem, 
 180 Fed. Rep., 508; and see note to sec. 178, 
 R. S.) 
 
 So long as the powers delegated to the Assist- 
 ant Secretary by his superior remain unrevoked, 
 the authority of the former is coordinate and 
 concurrent with that of the latter. When the 
 assistant acts at a time the Secretary is not 
 absent or sick, under a regulation made by the 
 Secretary prescribing his powers and duties, he 
 should sign with his own proper official desig- 
 nation. When the Secretary is absent or sick, 
 if the assistant is in charge of the department 
 in pursuance of sections 177 or 179, Revised 
 Statutes, he should sign as Acting Secretary. 
 (19 Op. Atty. Gen., 133.) 
 
 See limitation contained in section 180, Re- 
 vised Statutes. 
 "Death, resignation, absence, or sickness." 
 As to construction of these words, see note 
 to section 179, Revised Statutes. 
 The courts take judicial notice of the 
 fact that a deputy or assistant to a public officer, 
 in a particular case, is provided for by law, and 
 that such deputy or assistant may exercise the 
 powers and discharge the duties attached to the 
 office during a vacancy in that office, or during 
 the absence or inability of his superior. Where 
 such deputy or assistant signed as "acting" a 
 document required by statute to be signed by 
 his superior, it will be presumed that at the date 
 he so signed he was authorized to exercise the 
 powers and discharge the duties of the office 
 
 and was therefore at the time 
 
 acting 
 
 as such 
 
 officer. (Keyser v. Hitz, 133 U. S., 138, 145.) 
 For other cases see note to section 177, Re- 
 vised Statutes. 
 
 The words "the assistant or deputy of 
 such chief or of such officer," and "the 
 chief clerk of such Bureau," in this section, 
 can only refer to assistants or deputies and chief 
 clerks whose appointment is specifically pro- 
 vided for by statute. Accordingly, an officer 
 of the Navy detailed by the Secretary of the 
 Navy as assistant to the chief of a bureau in the 
 Navy Department is not, in the absence of a 
 statute making provision for such assistant, 
 authorized to perform the duties of the chief in 
 case of a vacancy or the absence or sickness of 
 his superior. This section must be read in con- 
 nection with laws providing for the establish- 
 ment of the Department of the Navy, and spe- 
 
 213 
 
Sec. 179. 
 
 Pt. 2. REVISED STATUTES. Executive Departments. 
 
 cifically authorizins; chief clerks and assistants 
 in certain bureaus. (19 Op. Atty. Gen., 503; 28 
 Op. Atty. Gen.. 05.) 
 
 Assistants to chiefs of bureaus in the 
 Navy Department are specifically provided 
 for by the following laws: Bureau of Naviga- 
 tion, "act of March 3, 1893 (27 Stat., 717); Bureau 
 of Supplies and Accounts, act of Julv 26, 1894 
 (2S Stat., 132); February 25, 1903 (32 Stat., 890); 
 Bureau of Ordnance, act of May 4, 1898 (30 
 Stat., 373); Bureau of Steam Engineering, act 
 of March 3, 1905 (33 Stat., 1111); Bureau of 
 Yards and Docks, Bureau of Construction and 
 Repair, and .Tudce Advocate General, act of 
 August 29, 1916, 39 Stat., 558. In all of these 
 cases the laws cited specifically provide that the 
 assistant shall perform the duties of the chief of 
 the bureau in the latter's absence. An assistant 
 to the Chief of the Bureau of Medicine and Sur- 
 gery is authorized by section 1375, Revised 
 Statutes; that section does not contain any 
 
 S revision that such assistant shall perform the 
 uties of the chief of the bureau in the latter's 
 absence, but he is an "assistant" specifically 
 provided for by law and therefore authorized 
 to act as Chief of the Bureau of Medicine and 
 Surgery in accordance with the provisions of 
 section 178, Revised Statutes, and the Attorney 
 General's opinion above cited (19 Op. Attv. 
 Gen., 503). The detail of "not less than fifteen 
 officers of and above the rank of lieutenant 
 commander of the Navy or major of the Marine 
 Corps," to "assist the Chief of Naval Opera- I 
 
 Sec. 179. [Vacancies, authority of President to fill temporarily.] In any of 
 the cases mentioned in the two preceding sections, except the death, resignation, 
 absence, or sickness of the Attorney-General, the President may, in his discre- 
 tion, authorize and direct the head of any other Department or any other 
 ofTicer in either Department, whose appointment is vested in the President, 
 by and with the advice and consent of the Senate, to perform the duties of 
 the vacant oflice until a successor is appointed, or the sickness or absence of 
 the incumbent shall cease. — (23 July, 1868, c. 227, s. 3, v. 15, p. 168; 22 June, 
 1870, c. 150, s. 2, V. 16, p. 162.) 
 
 tions in performing the dudes of his office," 
 was authorized by act of August 29, 1916 (39 
 Stat., 558; see file 22724-40, Apr. 24, 1919.) 
 
 In bureaus of the Navy Department where as- 
 sistants are not specifically provided for by law, 
 officers of the Navy detailed to duty as assist- 
 ants to the chiqfs of such bureaus are not author- 
 ized to perform the duties of their chief in case 
 of the latter's absence or sickness. "Without 
 making a question that the assignment of com- 
 missioned officers of the Navy to act as assist- 
 ants to chiefs of bureaus may be within the gen- 
 eral powers of the Secretary of the Navy, I 
 think that section 178 can only refer to assistants 
 or deputies whose appointment is specifically 
 provided for by statute." (19 Op. Atty. Gen., 
 503.) Accordingly, in such cases the chief clerk 
 of the bureau becomes acting chief thereof in 
 case of the latter's absence or sickness, unless 
 otherwise directed by the President inider 
 section 179, Revised Statutes. (File 22724-14, 
 Dec. 17, 1909.) 
 
 In certain offices of the Navy Depart- 
 ment, as, for example, the office of the Judge 
 Advocate General, when there was neither an 
 "assistant" nor "chief clerk" specifically pro- 
 vided for by law, the Secretary of the Navy 
 designated officers of the Navy or Marine Corps 
 on duty in the office to perform the duty of the 
 head of the office in the latter's absence. (File 
 22724-26.) See note to section 179, Revised 
 Statutes. 
 
 As to vacancy in the office of Attorney Gen- 
 eral, or his absence or sickness, see sec- 
 tion 347, Revised Statutes. 
 The Commanding General of the Army or the 
 chief of any military bureau of the War De- 
 partment may be assigned to perform the 
 duties of the Secretary of War, under this 
 section. (Act Aug. 5,' 1882; 22 Stat., 238.) 
 [It had previously been held by the Attor- 
 ney General that such assignment could 
 not be made, because of a law forbidding 
 officers of the Army to hold any civil office, 
 either by election or appointment. (14 
 Op, Atty. Gen., 200.)] 
 In the absence of the Secretary and 
 Assistant Secretary of the Navy, and the 
 Chief of Naval Operations, the President 
 has directed that, "until further orders," the 
 duties of the Secretary of the Navy shall be per- 
 formed by the following designated persons, in 
 the order named: The Chief of the Bureaii of 
 Navigation ; in his absence, the Chief of the Bu- 
 reau of Ordnance; and in the absence of those 
 two, the Chief of the Bureau of Engineering. 
 
 (File 1159-765, Bu. Nav.; Navy Regs., 1920, 
 art. 392, as amended; see also file 22724-40, 
 Apr. 24, 1919.) 
 
 By act of March 3, 1915 (38 Stat., 929), the 
 Chief of Naval Operations "shall be next in 
 succession to act as Secretary of the Navy" 
 during the temporary absence of the Secretary 
 and the Assistant Secretary. 
 
 Authority of Acting Secretary. — It is 
 clear that, in the absence of the Secretary, the 
 authoi'ity with which he is invested can be ex- 
 ercised by the officer who, under this section, 
 becomes for the time Acting Secretary. (Ryan 
 V. U. S., 136 U. S., 81; Shillito v. McClung, 51 
 Fed. Rep., 871; 20 Comp. Dec, 11. See note 
 to sec. 177, R. S.) 
 
 "Death, resignation, absence, or sick- 
 ness." — The word "death" requires no defi- 
 nition, and the word "sickness" has received 
 none under this law. As to the word ' ' absence " 
 the decisions are not harmonious. The Attor- 
 ney General's opinions are both ways upon the 
 question whether a vacancy caused by retire- 
 ment is due to "absence," the later opinions 
 
 214 
 
Executive Departments. Pt. 2. REVISED STATUTES. 
 
 Sec. 179. 
 
 holdiBg that it is not. An interruption of busi- 
 ness caused by suspension of an officer is due to 
 absence, according to the Attorney General, 
 although Congress, in section 1768, Revised 
 Statutes (now repealed), made specific provi- 
 sion for such cases, so that they were not gov- 
 erned by section 179, Revised Statutes. The 
 cases on this subject are as follows: 
 
 A vacancy canned by the retirement of the 
 Paymaster General of the Army may be tempo- 
 rarily filled Tuider this section. It may well be 
 said that in the eye of the law a retired officer is 
 "absent," he being incapable of rendering the 
 service required. If tliis construction maj^ not 
 be given to the act, it is clearly casus omissus 
 [a case which is not provided for]". There would 
 in that event be no power to provide for the 
 duties of the office ad interim. (19 Op. Atty. 
 Gen., 500.) 
 
 In a later opinion, the Attorney General held 
 that no pro^'ision is made by this section for 
 filling a vacancy caused by retirement, and 
 that, upon the retirement of the Chief of the 
 Bureau of Steam Engineering in the Navy De- 
 partment, the President was not authorized to 
 designate the Chief of the Bureau of Construc- 
 tion and Repair as Acting Chief of the Bureau of 
 Steam Engineering; that Congress had made no 
 p^o^•ision for the temporary discharge of his 
 duties, and accordingly the Bureau of Steam 
 Engineering must remain without a head imtil 
 the place should be filled by new appomtment 
 pursuant to sections 421 and 424, Revised 
 Statutes; that "absence" implies a temporary 
 state of being away from the office and a pos- 
 sibility of returning, which is entirely incon- 
 sistent with the idea of retirement for ph^-sical 
 incapacity, which is a permanent condition. 
 (27 Op. Atty. Gen., 344.) In this later opinion 
 no reference is made to the former opinion with 
 which it is in conflict and which was apparently 
 overlooked . As to inherent power of the Presi- 
 dent in such cases, see note to sec. 177, 
 R. S.) 
 
 Again, the Attorney General held that, aside 
 from the question v\-hether the Marine Corps can 
 be regarded as a bureau of the Navy Depart- 
 ment, sections 177, 179, and 180, Revised 
 Statutes, hav? no application in the case of the 
 retirement of the Commandant of the Marine 
 Corps on accoimt of age, as the vacancy in such 
 case does not result from "death, resignation, 
 absence, or sickness" of the incumbent. (28 
 Op. Atty. Gen., 487.) 
 
 In case of the suspension of an officer during a 
 recess of the Senate, the President was 
 authorized, imder section 1768, Revised Stat- 
 utes (now repealed), to designate "some suit- 
 able person," to perform the duties of the sus- 
 pended officer until the end of the next session 
 of the Senate. The suspension of an officer did 
 not create a vacancy, as the suspended officer 
 continued to hold the office, although not enti- 
 tled to pay under section 1768, Revised Stat- 
 utes. The word "suspended " imports that the 
 person suspended is still the incumbent of the 
 office; that the interruption of his performance 
 of its duties is temporary and provisional. 
 Temporary designation of an acting officer 
 in this case was properly made under section 
 1768, Revised Statutes. (13 Op. Atty. Gen., 
 512.) 
 
 The Judge Advocate General of the Army was 
 
 suspended from rank and duty pursuant to sen- 
 tence of a general court-martial. (Swaim v. 
 U. S., 165 U. S., 554.) The Secretary of War, 
 July 25, 1884, by direction of the President, des- 
 ignated the senior Assistant Judge Advocate 
 General to ' ' take charge of the office of the Judge 
 Advocate General and perform his duties" dur- 
 ing the suspension of the Judge Advocate Gen- 
 eral. Under this order the Assistant Judge 
 Advocate General became "Acting Judge Ad- 
 vocate General of the Army " from July 25, 1884, 
 toJanuarj'3, 1895. (See Dig., J. A. G., Army, 
 1912, p. 4.) The Attorney General held that 
 "the order assigning Col. I.ieber to duty as Act- 
 ing Judge Advocate General was made in pur- 
 suance of section 179 of the Revised Statutes," 
 and that as such Acting JudgeAdvocate General 
 he was qualified to act as a member of the Board 
 of Commissioners of the Soldiers' Home, imder 
 the law which provided that said board should 
 include in its membership "the Judge Advo- 
 cate General." (20 Op. Atty. Gen., 483.) 
 
 "Resignation'^ of an office implies the con- 
 sent of the incumbent to the giving up of the 
 office and does not include the compulsory re- 
 tirement of an officer by reason of disability to 
 perform the duties of the office. (27 Op. Atty. 
 Gen., 337.) 
 
 The words "any other officer in either 
 Department," apply only to an officer who 
 holds a position in the Department to which he 
 has been appointed by the President by and 
 with the advice and consent of the Senate. Ac- 
 cordingly, these words do not embrace an offi- 
 cer of the Navy detailed to duty in the Navy 
 Department, because such officer, although ap- 
 pointed to his grade in the Navy by and with 
 the advice and consent of the Senate, does not 
 hold any office in the department to which he 
 has been so appointed . Such an officer can not, 
 therefore, be assigned by the President to per- 
 form the duties of the Secretary of the Navy or 
 the chief of a biu-eau in the Navy Department 
 during the temporary absence of the officials 
 mentioned. (28 Op. Atty. Gen., 95.) See note 
 to section 178, Revised Statutes. 
 
 The holder of an office vacates it by the 
 acceptance of another iucompatible office. He 
 does not vacate it by temporarily performing 
 the duties of another office, when such tempo- 
 rarv performance is permitted by law. (13 Op. 
 Atty. Gen., 512. But see 14 Op. Atty. Gen. ,200, 
 holding that the Commanding General of the 
 Army could not, under laws then in force, act 
 as Secretary of War without vacating his com- 
 mission.) 
 
 Power of Secretary to perform duties 
 of subordinate. — In any case where a vacancy 
 exists in a subordinate position under the Secre- 
 tary of the Navy, the Secretary has the power 
 to perform the duties of said position until the 
 vacancy is filled. In such a case the Secretary 
 must sign all papers in person, and can not dele- 
 gate general authority to another to perform the 
 duties of the office and sign papers "By direc- 
 tion of the Secretary of the Navy." So held 
 with reference to vacancy existing in the posi- 
 tion of Commandant of the Marine Corps. (28 
 Op. Atty. Gen., 487. Compare Williams Eng. 
 and Cont. Co. v. U. S., 55 Ct. Cls., 349, noted 
 under sec. 419, R. S.) 
 
 215 
 
Sec. 181. 
 
 Pt.2. REVISED STATUTES. Executive Departments. 
 
 Sec. 180. [Temporary appointments limited to thirty days.] A vacancy 
 occasioned by death or resi»,aiation must not be temporarily filled under the 
 three preceding sections for a longer period than thirty days. — (23 July, 1868, 
 c. 227, s. 3, V. 15, p. 1G8.) 
 
 This section was amended to read as above by 
 act of February 6, 1891, section 91 (26 Stat. 
 733), which act substituted the word 
 "thirty" for the word "ten" which 
 appeared in the original section. 
 President can not make second designa- 
 tion on expiration of first. — In a case in 
 which tlie Secretary of War was designated by 
 the President to act as Secretary of the Navy 
 under the provisions of sections 177-180, Re- 
 vised Statutes, it was held that upon the expi- 
 ration of the period fixed by this section it was 
 not in the power of the President to designate 
 another officer or the same officer to act for an 
 additional period; that when the vacancy was 
 once temporarily filled for the statutory period 
 the power conferred by the statute is exhausted, 
 and the President is remitted to his constitu- 
 tional power of appointment; and that no such 
 appointment having been made, "there is and 
 can be no person authorized by designation to 
 sign requisitions upon the Treasury Department 
 on account of Navy payments as Acting Secre- 
 tarv of the Navy.'" (16 Op. Atty. Gen., 596; 
 affirmed 17 Op. Atty. Gen., 530, 18 Op. Atty. 
 Gen., 58.) 
 
 Purpose of section. — The temporary term 
 authorized by sections 178 and 180, either by 
 mere operation of the statute or by action of the 
 President, is for no longer period than that 
 limited by this section. The theory seems to 
 be, and very properly, that the department 
 has no more than a sufficiency of officers to 
 transact the public business properly; and 
 therefore, that in case of death or resignation 
 this normal equipment is to be restored within 
 the brief period named. (18 Op. Atty. Gen. ,50.) 
 Computed from date of President's ac- 
 tion. — The limitation imposed by this section 
 upon the temporary filling of vacancies occa- 
 sioned by death or resignation is to be com- 
 puted from the date of the President's action. 
 Where the officer appointed to act performed 
 the duties of the vacant office prior to his des- 
 ignation by the President, he was not acting 
 under authority of sections 178-180, Revised 
 Statutes, and such period during which he was 
 acting without authority of these sections is not 
 to be counted in computing the time during 
 which his temporary appointment by the Presi- 
 dent has force. [In this case the officer was not 
 the "assistant or deputy," and therefore did not 
 succeed to the vacancy by operation of section 
 178, Revised Statutes.] (15 Op. Atty. Gen., 457.) 
 Vacancy can not be filled by operation of 
 law and then by designation of President 
 in excess of 30 days. — Where an officer 
 succeeds to a vacancy by operation of section 
 177 or 178, Re\dsed Statutes, and performs the 
 duties of the vacant office during the full period 
 
 prescribed by this section, the President can 
 not thereafter designate the same or a different 
 officer to perform the duties of the vacant office 
 during an additional period of 30 days, under 
 authority of section 179, Revised Statutes; but 
 the total period for which the vacancy can be 
 temporarily filled under these sections, either 
 by operation of. law or by designation of the 
 President, is 30 days. The legislative purpose 
 was that a vacancy caused by death or resigna- 
 tion shall be permanently filled by constitu- 
 tional appointment within 30 days. It may be 
 tliat the action of an assistant after the expira- 
 tion of the statutory period would not be 
 invalid, being the action of an officer de facto; 
 but the statute, even if directory, is no less 
 obligatory upon those called upon to act under 
 it than if mandatory, although the legal effect 
 of action or nonaction under a directory stat- 
 ute may be very different from the effect 
 under a mandatory statute. (20 Op. Atty. Gen., 
 8, reversing 17 Op. Atty. Gen., 535.) [Note: In 
 the case of a "mandatory" statute, all acts 
 done in violation of its terms are absolutely 
 null and void; while in the case of a "direc- 
 tory" statute, acts performed contrary to its 
 terms may be valid, although the officer guilty 
 of violating the statute may otherwise be held 
 responsible therefor. With reference to direc- 
 tory statutes, it was said by Mr. Justice Field, 
 in French v. Edwards, 13 Wall., 511: "There 
 are undoubtedly many statutory requisitions 
 intended for the guide of officers in the conduct 
 of business devolved upon them which do not 
 limit their power or render its exercise in dis. 
 regard of the requisitions ineffectual. Such 
 generally are regulations designed to secure 
 order, system, and dispatch in proceedings, and 
 by a disregard of which the rights of parties 
 interested can not be injuriously affected."] 
 
 Vacancy occurring during recess of the 
 Senate. — The limitation contained in this sec- 
 tion applies only to temporary appointments 
 made while the Senate is in session. It appears 
 from an examination of the Journals of Congress 
 that the Senate was in session when the vacan- 
 cies referred to in Mr. Devens's opinions occurred . 
 (15 Op. Atty. Gen., 458; 16 Op. Atty. Gen., 596), 
 and presumably in the case presented to Mr. 
 Brewster (17 Op. Atty. Gen., 530)._ The ab- 
 sence of any reference in those opinions to the 
 excepting clause of section 181, Revised Stat- 
 utes, would seem to place it entirely beyond 
 doubt that the sections referred to were not 
 being construed with reference to vacancies 
 occurring during a recess of the Senate. In the 
 latter case the temporary appointment, desig- 
 nation, or assignment is not limited by law to 
 any particular period. (25 Op. Atty. Gen., 258. 
 See note to sec. 181, R. S.) 
 
 Sec. 181. [Restriction on temporary appointments.] No temporary appomt- 
 ment, designation, or assignment of one officer to perform the duties of another, 
 in the cases covered by sections one hundred and seventy-seven and one hun- 
 
 216 
 
Executive Departments. Ft. 2. REVISED STATUTES. 
 
 Sec. 183. 
 
 dred and seventy-eight, shall be made otherwise than as provided by those 
 sections, except to fill a vacancy happening durmg a recess of the Senate. — (23 
 July, 1868, c. 227, s. 2, v. 15, p. 168.) 
 
 "The President shall have power to fill up all 
 vacancies that may happen during the re- 
 cess of the Senate, by granting commissions 
 which shall expire at the end of their next 
 session." (Const., Art. II, sec. 2, clause 3.) 
 Senate temporarily adjourned. — It was 
 held by the Court of Claims, :May 26, 1884, that 
 there was "no doubt " that a vacancy occurring 
 while the Senate was temporarily adjourned 
 could be and was legally filled by appointment 
 of the President in accordance with the above 
 pro\dsion of the Constitution and that the ap- 
 pointee legally held the oflice until he was noti- 
 fied of his refection by the Senate at its next 
 regular session established by law, which began 
 on the first Monday of the following December. 
 (Gould V. U. S., 19 Ct. Cls., 593, 595.) The At- 
 torney General thereafter, December 24, 1901, 
 expressly dissented from the Court of Claims 
 decision, and advised the President that a 
 vacancy occurriag during a temporary adjourn- 
 ment of the Senate could not be filled by him 
 as a "recess" appointment, but that such ap- 
 pointments could be made only when the 
 Senate adjourned sine die. C23 Op. Atty. Gen., 
 599; affirmed 29 Op. Attv. Gen., 602.; but see 
 33 Op. Atty. Gen., 20.) 
 
 A temporary appointment during a re- 
 cess of the Senate need not be made in any 
 prescribed form. A communication from the 
 Secretary of War informing the recipient that 
 he has been appointed an officer of the Army 
 by the President is sufficient, and answers 
 the purpose of a commission if a commission 
 is necessary. (O'Shea v. U. S., 28 Ct. Cls., 392.) 
 The President has the right under the 
 Constitution, and impliedly under section 
 181, Revised Statutes, to make a temporary 
 appointment, designation, or assignment of one 
 officer to perform the duties of another in the 
 
 Sec. 182. [Extra compensation disallowed.] An officer performing the 
 duties of another office, during a vacancy, as authorized by sections one hundred 
 and seventy-seven, one hundred and seventy-eight, and one hundred and 
 seventy-nine, is not by reason thereof entitled to any other compensation than 
 that attached to his proper office. — (23 July, 1868, c. 227, s. 3, v. 15, p. 168.) 
 
 case of a vacancy caused by death, disabihty, 
 or otherwise during the recess of the Senate, 
 and such temporary appointment, designation, 
 or assignment is not limited by law to any par- 
 ticular period. The excepting clause in sec- 
 tion 181 makes it clear that Congress only in- 
 tended by the provisions in question to restrict 
 the power of the President temporarily to ap- 
 point, designate, or assign one officer to perform 
 the duties of another in the case of vacancies 
 happening while the Senate was in session, the 
 reason for which is manifest, and to leave un- 
 restricted not only the President's constitu- 
 tional right to fill vacancies happening during 
 a recess of the Senate by granting commissions 
 which shall expire at the end of the next session, 
 but his fundamental right as Chief Executive 
 to make such a temporary appointment, desig- 
 nation, or assignment of one officer to perform 
 the duties of another whenever the administra- 
 tion of the Government requires it. There can 
 be no question as to the existence of such right. 
 It could not have been the purpose of the Con- 
 stitution to compel the President to act imme- 
 diately upon the occurrence of the vacancy. 
 That would frequently be impossible, and if 
 such were the rule, and no other officer could act 
 until a successor was appointed, the Govern- 
 ment would be menaced with a serious inter- 
 ruption of its administration. The opinions of 
 Attorneys General Devens and Brewster (15 
 Op. Atty. Gen., 458; 16 Op. Atty. Gen., 596; 
 17 Op. Atty. Gen., 530; noted under sec. 180, 
 R. S.) were not rendered with reference to 
 vacancies occurring during a recess of the 
 Senate. (25 Op. Atty. Gen., 258.) 
 
 For other decisions see note to Constitu- 
 tion, Article II, section 2, clause 3, and to sec- 
 tion 1381, Re\dsed Statutes. 
 
 The prohibition in this section against 
 additional compensation was designed to be 
 general and to apply to ever\' officer performing 
 the duties of an office temporarily vacant, 
 whether the vacancy was caused by death, 
 resignation, absence, or sickness, and whether 
 
 such duties devolved upon him by force of the 
 statute or by designation of the President, and 
 such officer is not entitled to any salarj- other 
 than that which is annexed to the office he 
 holds. (13 Op. Atty. Gen., 8; 13 Op. Atty. Gen., 
 512, 514.) 
 
 Sec. 183. [Oaths, when administered by officers, etc.] Any officer or clerk 
 of any of the departments lawfulh' detailed to investigate frauds on, or attempts 
 to defraud, the Government, or any irregularity or misconduct of any officer or 
 agent of the United States, and any officer of the Army, Navy, Marine Corps 
 or Revenue-Cutter Service, detailed to conduct an investigation, and the 
 recorder, and if there be none the presiding officer, of any military, naval, or 
 
 217 
 
Sec. 183. 
 
 rt.2. REVISED STATUTES. Executive Departments. 
 
 Revenue-Cutter Service board appointed for such purpose, shall have authority 
 to administer an oath to any witness attending to testify or depose in the course 
 of such investigation. 
 
 This section was amended and reenacted to 
 
 read as above by act of P'ebruary 13, 1911 
 
 (36 Stat., 898), which act also superseded 
 
 the act of March 2, 1901 (31 Stat., 951). 
 Ae originally enacted this section provided as 
 
 follows: "Sec. 183. xVny officer or clerk of 
 
 any of the departments lawfully detailed 
 
 to investigate frauds or attempt to defraud 
 
 on the Government, or any irregularity or 
 
 misconduct of any officer or agent of the 
 
 United States, shall have authority to ad- 
 minister an oath to any witness attending 
 
 to testify or depose in the course of such 
 
 investigation."— (10 Apr., 1869, Res. No. 
 
 15, 8. 2, v. 16, p. 55; 7 Mar., 1870, c. 23, v. 
 
 16, p. 75.) 
 The "Revenue Cutter Service" is now the 
 
 "Coast Guard." (Act Jan. 28, 1915, 38 
 Stat., 800.) 
 
 The solicitor in the ofla.ce of the Judge 
 Advocate General, Navy Department, was 
 detailed by the Secretary of the Navy, May 2, 
 1907 (file 5421-11), to investigate reported dis- 
 crimination against marines in uniform visiting 
 the Library of Congress, and was authorized 
 to administer oaths to witnesses under this 
 section. See also file 26263. 
 
 A lieutenant commander in the Navy 
 was detailed by the Secretary of the NaA-y, 
 April 14, 1914, to investigate and ascertain 
 whether any officer or person in the naval serv- 
 ice or connected with the Navy Department 
 had been guilty of any irregularity or miscon- 
 duct in originating or circulating reports or 
 rumors by means of the public press concerning 
 the relations between an officer of the Navy and 
 Government contractors, and was authorized to 
 administer oaths to witnesses under this section . 
 (File 26251-8827:5; see also 16711-3, July 12, 
 
 1911.) 
 
 Boards of investigation. — It has never 
 been decided that boards of investigation in 
 the Navy have general authority to administer 
 oaths to witnesses in every case. So far as prec- 
 edent goes, it supports' the conclusion that 
 such boards are authorized to swear witnesses 
 only when the subject of the investigation re- 
 lates to "frauds on, or attempts to defraud, the 
 Government or any irregularity or misconduct 
 of any officer or agent of the United States." 
 (File 3980-842, Sept. 29, 1913.) 
 
 The Navy Regulations, 1913, provide that 
 boards of investigation, "although they may 
 collect material information froin apparent or 
 known facts, or from written evidence which 
 they may possess, and may record the declara- 
 tions of persons examined before thein, will 
 not take testimony under oath except in im- 
 portant cases in which the order convening 
 the board expressly states that such board js 
 authorized to administer oaths to witnesses in 
 accordance with " the above law. (R-316 (3) 
 and (4).) 
 
 Other laws authorizing oaths to be ad- 
 ministered by persons in the naval service 
 
 or connected with the Navy Department, 
 are as followt; : 
 
 For purposes of naval administration. — 
 Act of March 4, 1917 (39 Stat., 1171), amending 
 the act of March 3, 1901 (31 Stat., 1086), which 
 amended the act of January 25, 1895 (28 Stat., 
 639), authorizes certain officers of the Navy, 
 Marine Corps, Naval Reserve Force, and Marine 
 Corps Reserve, to administer oaths ' ' for the pur- 
 poses of the administration of naval justice and 
 for other purposes of naval administration." 
 This law authorizesany of the officers designated 
 therein to administer an oath for any purpose of 
 naval administration (file 26806-94, Nov. 23, 
 1912; 19037-45, May 26, 1914); but it does not 
 authorize such officers to administer an oath for 
 other purposes, such as in matters relating to 
 the private business of either officers or enlisted 
 men. (File 19037-27, Mar. 30, 1912.) 
 
 Income tax returns. — The Secretary' of the 
 Treasury' authorized annual returns of persons 
 in the naval sen,dce under the income tax pro- 
 \Tsions of the act October 3, 1913 (38 Stat., 
 166-181), and amendments thereto, to be exe- 
 cuted before any official authorized to admin- 
 ister oaths for the purposes of that service. 
 (Art. 406, Treas. Regs., 1922; see also U. S. v. 
 Bailey, 9 Pet., 238; 19 Op. Atty. Gen., 401). 
 
 Accounts for travel, etc. — The sundry 
 civil appropriation act, August 24, 1912, section 
 8 (37 Stat., 487), authorizes certain officers of the 
 Government, including "chief clerks of the 
 various executive departments and bureaus or 
 clerks designated by them for the purpose," to 
 administer oaths to accounts for travel or other 
 expenses against the United States. See also 
 19 Op. Atty. Gen., 401. 
 
 Oaths of office.— The act of August 29, 1890 
 (26 Stat., 371),authorizes and directs chief clerks 
 of the several executive departments and of the 
 various bureaus and offices thereof in Washing- 
 ton, to administer oaths of office to employees 
 on appointment or promotion. (See also sec. 
 392, R. S., as amended.) 
 
 The Articles for the Government of the 
 Navy authorize oaths to be administered by 
 the following officers: Judges advocate and 
 presiding officers of general courts-martial 
 (arts. 40, 41); judges advocate and presiding 
 officers of courts of inquiry (art. 57); recorders 
 and senior members of summarv courts-martial 
 (arts. 28 and 29). (Sec. 1624, R. S.) 
 
 Deck courts are authorized to administer 
 oaths by act of February 16, 1909, section 2 (35 
 Stat., 621). 
 
 Naval Examining Boards are authorized 
 to administer oaths by section 1499, Revised 
 Statutes. 
 
 Naval retiring boards have this authority 
 under sections 1449 and 1450, Revised Statutes. 
 
 Consular powers may be exercised by offi- 
 cers of the Navy in relation to mariners of the 
 United States, under conditions prescribed by 
 section 1433, Revised Statutes. 
 
 218 
 
Executive Departments. Ft. 2. REVISED STATUTES. 
 
 Sec. 184. 
 
 Acknowledgment of deeds and other in- to be verified by the certificate of thegoverilor 
 
 struments affecting lands situate in the District or acting governor. (Act June 28, 1906,' 34 
 
 of Columbia or any Territory, may be taken in Stat., 552.) 
 
 Guam and Samoa before any notary public or On general subject of administration of 
 
 judge appointed therein by proper authority, oaths by officers of the Navy, see file 19037-45, 
 
 or by any officer therein who has ex officio the May 26, 1914. 
 powers of a notary; such acknowledgments 
 
 Sec. 184. [Claims pending in Departments — Subpoenas to witnesses.] Any- 
 head of a Department or Bureau in which a claim against the United States 
 is properly pending may apply to any judge or clerk of any court of the United 
 States, in any State, District, or Territory, to issue a subpoena for a witness 
 being within the jurisdiction of such court, to appear at a time and place in the 
 subpoena stated, before any officer authorized to take depositions to be used 
 in the courts of the United States, there to give full and true answers to such 
 written interrogatories and cross-interrogatories as may be submitted with the 
 apphcation, or to be orally examined and cross-examined upon the subject of 
 such claim.— (14 Feb., 1871, c. 51, s. 1, v. 16, p. 412.) 
 
 Thissection was modified by actof July 25, 1882, 
 section 3 (22 Stat., 175), relative to exami- 
 nation of witnesses in pension claims; which 
 act, however, related to Pension Office 
 only. 
 Constitutionality. — In re McLean (37 Fed. 
 Rep., 648) the court held that Congress is not 
 authorized to permit the judicial power to be 
 invoked in aid of an examination pending in 
 an executive de])artment, and accordingly that 
 legislation of this kind was null and would not 
 be enforced. In so holding the court cited and 
 followed In re Railway Commission (32 Fed. 
 Rep., 241). The McLean case was approved 
 and followed in In re Interstate Commerce Com- 
 mission (53 Fed. Rep., 476), which involved a 
 similar question; but all of these cases were 
 reversed in Commerce Commissions. Brimson, 
 decided by the Supreme Court (154 U. S., 
 447). 
 
 Statutes of this class were expressly held to 
 be constitutional in In re Gross (78 Fed. Rep., 
 107), in which case the court cited and applied 
 the decision of the Supreme Court in Brim- 
 son's case and dissented from McLean's case, 
 both above cited. (See Haybum's case, 2 
 Ball., 409.) 
 
 Procedure. — This section does not author- 
 ize ah ex parte procedure. Witnesses are to be 
 subjected not only to examination but to cross- 
 examination. Claimants are therefore entitled 
 to have notice of the time and place of the ex- 
 amination and may be present to cross-examine 
 the witnesses of the Government if they choose 
 to do so. Their attorney may represent them at 
 the examination. A witness examined by the 
 Government is also entitled to consult counsel. 
 The examination is not before a court which 
 may protect the witness in liis constitutional 
 right to refuse to answer incriminating ques- 
 tions. The possibility of converting these ad- 
 ministrative examinations into very obnoxious 
 inquisitorial proceedings is apparent. The pro- 
 ceeding is not a secret one, like an inquest by a 
 grand jury. So long as counsel for a witness 
 conducts himself with propriety and does not 
 interfere with the examination he has a right to 
 be present. If in the course of the examination 
 
 any questions are propounded to a witness the 
 answers to which will tend to incriminate liim, 
 he may refuse to answer them. Such refusal, 
 however, must be claimed by the witness as his 
 personal privilege and can not be claimed for 
 him by his counsel. The examiner has no 
 power or right to extort a confession from a wit- 
 ness, even though there is no inten tion of prose- 
 cuting the witness therefor. (In re O'Shea, 166 
 Fed. Rep., 180.) 
 
 Protection of witness. — The courts can not 
 be expected to neglect the duty which belongs 
 to them of watching against any stealthy en- 
 croachment upon the constitutional rights of the 
 citizen; "and the least that they can require of 
 these examiners, so armed with such dangerous 
 power, and invested with such tempting oppor- 
 tunities to invade the constitutional guaranty, 
 is that they shall conduct their examinations in 
 such a manner that the citizen shall be fully 
 warned of his constitutional right, and offered 
 an opportunity to assert it by a refusal to answer; 
 and where the witness is ignorant and helpless, 
 and such warning is neglected, protection can 
 be afforded to him by the courts in no other way 
 than by refusing to give any effect to the exami- 
 nation by way of any criminal prosecution to 
 support it and its object. * * * Until Con- 
 gress shall set about improving the system of 
 inquisition it is not to be expected that the 
 courts shall aid its usefulness at the expense of 
 the constitutional i)rotection of every citizen. 
 All that we now decide to be necessary to afford 
 the protection of the Constitution to this defend- 
 ant is that, unless a witness manifestly ignorant 
 of his privilege is informed of it by the examiner 
 so that he may protect himself, consult counsel 
 if he desires, and assert his right to remain 
 silent, the examination can not be used in evi- 
 dence against him, even on an indictment for 
 false swearing in the progress of the examination 
 itseh." (U.S.i'.Bell,8lFed.Rep.,849.) [This 
 decision related particularly to an examination 
 conducted under the pension act of 1882, above 
 cited.] 
 
 Scope of section. — It is noticeable that this 
 section provides only for investigations "upon 
 the subject " of the claims. It is clear that Con- 
 
 .54641°— 22- 
 
 15 
 
 219 
 
Sec. 188. 
 
 Pt.2. REVISED STATUTES. Executive Departments, 
 
 press intended to limit the scope of the investi- 
 gations, and that an examination wliich would 
 not be " upon the subject " of a claim would not 
 be within the pundew of this section. Accord- 
 ingly, the application for a subpoena should be 
 drawn with reasonable certainty and precision, 
 so that it should clearly appear iipon its face to 
 be in accordance with the act, and that the 
 cliiim in which the testimony is required should 
 be reasonably identified. Where this was not 
 done, held that the court will notrequire witness 
 who refuses to answer questions to show cause 
 why he should not ans%ver the interrogatories or 
 be adjudged in contempt of court. (In re 
 Gross, 78 Fed. Rep., 107.) 
 
 Power to require oaths. — "WTienever the 
 law imposes upon an officer the duty to exam- 
 ine, adjust, and settle claims against the Govern- 
 ment, it gives him authority to 'require' that 
 those claims shall be established, or supported 
 at least, by the oaths of witnesses." When 
 power is given to the examining officer to ad- 
 minister oaths there must be the implied power 
 
 Sec. 185. [Witnesses' fees.] Witnesses subpoenaed pursuant to the preced- 
 ing section shall be allowed the same compensation as is allowed witnesses in 
 the courts of the United States.— (14 Feb., 1871, c. 51, s. 1, v. 16, p. 412.) 
 
 to require them to be taken. If the needed tes- 
 timony can be had by affidavits or depositions 
 without the process of the courts, of course such 
 process need not be resorted to. (14 Op. Atty. 
 Gen., 419, 420, citing U. S. v. Bailey (9 Pet., 238, 
 253) as to implied power to require testimony to 
 be submitted under oath .) The original act up- 
 on which section 184, Revised .Statutes, is based 
 expressly provided that any witness attending 
 in accordance with said act who should be guilty 
 of intentional false swearing in his testimony 
 should be deemed guilty of the crime of perjury. 
 Punishment for perjury is now provided for by 
 section 12r), Criminal Code, act of March 4, 1909 
 (35 Stat., 1111). With reference to the original 
 statute, the Attorney General, in the opinion 
 cited, said: "This statute assumes that there is 
 authority in the heads of departments and bu- 
 reaus to require oaths in cases of claims against 
 the Government, and gives them very effective 
 process for the exercise of that authority." 
 (14 Op. Atty. Gen., 420.) 
 
 and paid by the United States marshal of 
 the district on the certificate or order of the 
 United States commissioner before whom the 
 examination was conducted; while the fees of 
 the commissioner should be paid as in ordinary 
 course, on settling his accounts at the Treasury 
 from the appropriation ' ' for fees of United States 
 commissioners," belonging to the judiciary 
 fund. (17 Op. Atty. Gen., 247.) 
 
 Fees of witnesses before naval courts-martial 
 
 and courts of inquiry are provided for by 
 
 act of February 16, 1909, section 12 (35 
 
 Stat., 622). See note to section 848, Revised 
 
 Statutes. 
 Appropriation available. — In the absence 
 of a special provision for defraying the ex- 
 penses of witnesses, they may properly be 
 allowed out of the judiciary fund, which 
 makes appropriation "for fees of witnesses," 
 
 Sec. 186. [Compelling testimony.] If any witness, after being duly served 
 with such subpoena, neglects or refuses to appear, or, appearing, refuses to testify, 
 the judge of the district in which the subpoena issued may proceed, upon proper 
 process, to enforce obedience to the subpoena, or to punish the disobedience, in 
 like manner as any court of the United States may do in case of process of sub- 
 poena ad testificandum issued by such court. — (14 Feb., 1871, c. 51, s. l,v. 16, 
 p. 412.) 
 
 See note of decisions under section 184, Revised Statutes. 
 
 Sec. 187. [Legal assistance in connection with claims.] Whenever any head 
 of a Department or Bureau having made application pursuant to section one 
 hundred and eighty-four, for a subpoena to procure the attendance of a witness 
 to be examined, is of opinion that the interests of the United States require the 
 attendance of counsel at the examination, or require legal investigation of any 
 claim pending in his Department or Bureau, he shall give notice thereof to the 
 Attorney-General, and of all facts necessary to enable the Attorney-General to 
 furnish proper professional service in attending such examination, or making 
 such investigation, and it shall be the duty of the Attorney-General to provide 
 for such service.— (14 Feb., 1871, c. 51, s. 3, v. 16, p. 412.) 
 A similar provision is contained in section 364, Revised Statutes. 
 
 Sec. 188. [Suits in Court of Claims — Evidence furnished by Departments.] 
 In all suits brought against the United States in the Court of Claims founded 
 
 220 
 
Executive Departments. Pt.2. REVISED STATUTES. Sec. 189. 
 
 upon any contract, agreement, or transaction with any Department, or any 
 Bureau, officer, or agent of a Department, or where the matter or thing on which 
 the claim is based has been passed upon and decided by any Department, 
 Bureau, or officer authorized to adjust it, the Attorney-General shall transmit 
 to such Department, Bureau, or officer, a printed copy of the petition filed by 
 the claimant, with a request that the Department, Bureau, or officer, shall fur- 
 nish to the Attorney-General all facts, circumstances, and evidence touching 
 the claim in the possession or knowledge of the Department, Bureau, or officer. 
 Such Department, Bureau, or officer shall, without delay, and within a reason- 
 able time, furnish the Attorney-General wdth a full statement, in writing, of all 
 such facts, information, and proofs. The statement shall contain a reference to 
 or description of all such official documents or papers, if any, as may furnish 
 proof of facts referred to in it, or may be necessary and proper for the defense 
 of the United States against the claim, mentioning the Department, office, or 
 place where the same is kept or may be procured. If the claim has been passed 
 upon and decided by the Department, Bureau, or officer, the statement shall 
 succinctly state the reasons and principles upon which such decision was based. 
 In all cases where such decision was founded upon any act of Congress, or upon 
 any section or clause of such act, the same shall be cited specifically; and if any 
 previous interpretation or construction has been given to such act, section, or 
 clause by the Department, Bureau, or officer, the same shall be set forth suc- 
 cinctly in the statement, and a copy of the opinion filed, if any, shaU be annexed 
 to it. Where any decision in the case has been based upon any regulation of a 
 Department, or where such regulation has, in the opinion of the Department, 
 Bureau, or officer transmitting such statement, any bearing upon the claim in 
 suit, the same shall be distinctly quoted at length in the statement. But where 
 more than one case, or a class of cases, is pending, the defense to which rests 
 upon the same facts, circumstances, and proofs, the Department, Bureau, or 
 officer shaU only be required to certify and transmit one statement of the same,, 
 and such statement shall be held to apply to all such cases, as if made out, certi- 
 fied, and transmitted in each case respectively. — (25 June, 1868, c. 71, s. 6, v» 
 15, p. 76.) 
 
 See Title VIII, Revised Statutes, " Depart- 
 ment of Justice." 
 Confidential information. — By act of Feb- 
 ruary 24, 1855, embodied in section 1076, Re- 
 vised Statutes, the Court of Claims was au- 
 thorized to "call upon any of the departments 
 for any information or papers it may deem nec- 
 essary * * * Provided, That the head of no 
 department shall answer any call for informa- 
 tion or papers if in his opinion it would be 
 injurious to the pubUc interest." Under this 
 provision, it is clear that the head of a depart- 
 
 ment is not at liberty to furnish to the court 
 information or papers when to do so would in 
 his opinion be injurious to the public interest, 
 and a return setting forth such opinion would 
 in all such cases be a sufficient answer to the 
 rule. (13 0p.Atty.Gen.,539.) For other cases, 
 see note to sections 161, 418, and 871, Re\dsed 
 Statutes. 
 
 Public policy forbids the maintenance of 
 any suit requiring the disclosure of confiden- 
 tial matters. (Totten v. U. S., 92 U. S., 105.) 
 
 Sec. 189. [Employment of attorneys or counsel.] No head of a Department 
 shall employ attorneys or counsel at the expense of the United States; but 
 when in need of counsel or advice, shall call upon the Department of Justice, 
 the officers of which shall attend to the same. — (22 June, 1870, c. 150, s. 17, v. 
 16, p. 164.) 
 
 the former practice, which permitted heads of 
 departments to employ counsel without ap- 
 plying to the Attorney General. (19 Op. Atty. 
 Gen., 330; 21 Op. Atty. Gen., 195.) 
 
 See Title VIII, Revised Statutes, " Depart- 
 ment of Justice." 
 Purpose of enactment. — This law was 
 passed to correct abuses which existed under 
 
 221 
 
Sec. 189. 
 
 Pt. 2. REVISED STATUTES. Executive Departments. 
 
 The provisions of law concerning the 
 Department of Justice (see Title VllI, 11. 
 S.) "are too conclusive and too specific to leave 
 any doubt thatConj^ress intended to gather into 
 the Department of Justice, under the super- 
 vision and control of the Attorney General, all 
 the litiKation and all the law business in which 
 the United States are interested, and which 
 previously had been scattered among different 
 public olHcers, departments, and branches of 
 the Government, and to break up the practice 
 of frequently emplojing unofficial attornevs for 
 the public service." (Perry v. U. S., 28 Ct. 
 Cls., 491.) 
 
 Employment of district attorneys. — By 
 anactapproved February 26, 1853(10Stat., 161), 
 it was provided that, for the services of counsel 
 rendered at the request of a head of a depart- 
 ment, the compensation should be such sum 
 as might be stipulated or agreed on. This pro- 
 vision recognized the authority of heads of 
 departments to employ counsel, and under it 
 they employed district attorneys to examine 
 titles and prepare abstracts thereof for submis- 
 sion to the Attorney General, and allowed them 
 special compensation therefor. But the act of 
 1853 was repealed by a clause in the act of 1870, 
 now embodied in section 189, Revised Statutes. 
 That repeal only altered the mode of employ- 
 ment; that is to say, it in effect invested the 
 Attorney General with sole authority thereafter 
 to employ district attorneys where the per- 
 formance of such services by him is called for. 
 (19 Op. Atty. Gen., 64.) 
 
 Before the passage of the act on which section 
 189, Revised Statutes, is based, the heads of the 
 several departments were accustomed to employ 
 district attorneys to examine into the titles to 
 lands sought to be purchased by the United 
 States. Under such employment the district 
 attorneys performing the services received 
 compensation for such services over and above 
 the usual compensation allowed by law for 
 district attorneys. Since the passage of this 
 law such services have been required of dis- 
 trict attorneys by the Department of Justice. 
 (Weed i;_. U.S., 82 Fed. Rep., 414, 419.) In this 
 connection see section 355, Revised Statutes. 
 
 The Secretary of War has no authority 
 without the consent of the Attorney General 
 to employ counsel to appear in court in certain 
 habeas corpus cases (13 Op. Atty. Gen., 583); 
 nor to employ a patent attorney to prosecute an 
 application for a patent (10 Comp. Dec, 686). 
 
 Formerly it was competent for the head 
 of any of the executive departments to 
 employ a district attorney or other counsel in 
 connection with proceedings in a State court 
 in which the United States was interested; and 
 such district attorney or other counsel was 
 entitled to receive for his services such sum as 
 might be agreed upon. But the authority of 
 the various heads of departments thus to employ 
 counsel at the expense of the United States was 
 taken away by the law now embodied in sec- 
 tion 189, Revised Statutes, and it was provided 
 that this power should thereafter be exercised 
 only by the Attorney General. (16 Op. Atty. 
 Gen., 101.) As to proceedings in State courts, 
 see section 367, Revised Statutes. 
 
 Wliere Congress, in an appropriation act 
 
 passed subsequent to the enactment of this 
 section, authorized the head of a bureau in an 
 executive dei)artmcnt ''to employ as many 
 persons as he may deem necessary" for the 
 purposes of said approi)riation, this did not 
 carry with it authority for the head of the bureau 
 or executive dei>artment to which it was at- 
 tached to employ counsel; as the employment 
 of counsel in executive departments is specifi- 
 cally covered by sections 189, 362, and 363, 
 Revised Statutes; and the general language of 
 an appropriation can not be given such scope 
 as to operate as a rejjeal, so far as a particular 
 bureau is concerned, of legislation regulating 
 the subject of employing counsel for the Gov- 
 ernment — legislation which was intended to 
 apply to all branches of the Government, which 
 has remained in force for many years, and the 
 want of which had led to some abuses. (19 Op. 
 Atty. Gen., 330.) 
 
 Duties of Comptroller of the Treas- 
 ury. — In practice the Comptroller of the Treas- 
 ury is asked, in form, for legal advice; La fact, 
 what is desired is information as to his future 
 action in a case, which may come before him 
 for decision. Where, however, the Secretary 
 of the Treasury asks the advice of the accoimt- 
 ing officers upon legal questions which do not 
 involve future action by them up6n questions 
 of payments, the advice so rendered by the 
 accounting officers is a purely voluntary matter, 
 and to compensate them for such work would 
 be a violation of section 189, Revised Statutes. 
 (20 Op. Atty. Gen., 655, 657.) [The view that 
 the opinions of the Comptroller upon legal ques- 
 tions are purely extraofficial is no longer ten- 
 able; by act of July 31, 1894 (28 Stat., 208), he is 
 authorized to render an advance decision upon 
 any question involving a payment. (22 Op. 
 Atty. Gen., 581.) See note to section 236, Re- 
 vised Statutes.] 
 
 Judge advocate, naval court-martial. — 
 According to the law regulating courts-martial, 
 the judge advocate is the official prosecutor; 
 and in cases arising in the Navy he is by cus- 
 tom either a naval officer specially designated 
 or a counselor at law employed for that purpose. 
 If a naval officer, he receives no special compen- 
 sation. If a counselor at law, it has been the 
 custom to pay him as for a professional service. 
 The law now embodied in seccion 189, Revised 
 Statutes, prohibits the Secretary of any of the 
 executive departments from employing attor- 
 neys or counsel at the expense of the United 
 States. Considering it settled that the desired 
 services (judge advocate) are such as can be 
 properly performed only by a naval officer or a 
 counselor at law, the Attorney General holds 
 that if, in the judgment of the Secretary of the 
 Navy, the cases in hand should be conducted by 
 a person of the latter description, the Secretary 
 of the Navy is not at liberty to employ such 
 counsel, but should call upon the Department 
 of Justice which will furnish an officer for the 
 service. (13 Op. Atty. Gen., 515; affirmed 14 
 Op. Atty. Gen., 13; see U. S. v. Mackenzie, 26 
 Fed. Gas., 1121.) In this connection, see note 
 to section 362, Revised Statutes. 
 
 Legal assistance for judge advocate. — 
 Special counsel may be employed by the 
 
 222 
 
Executive Departments. Pt. 2. REVISED STATUTES. 
 
 Sec. 189. 
 
 Attorney General at the request of the Secre- 
 tary of the Navy to assist the judge advocate 
 in a trial by court-martial; the compensation 
 of such counsel (in the absence of other provi- 
 sion) to be paid from the appropriation for 
 contingent expenses of the Navy. Such coun- 
 sel should be commissioned by the Attorney 
 General under section 366, E,e\T.sed Statutes. 
 (18 Op. Atty. Gen., 135.) 
 
 The Secretary of the Navy is not author- 
 ized by sections 3676 and 3681, Revised Stat- 
 utes, to employ special counsel in his discretion, 
 in connection with cases before naval courts- 
 martial, without applying to the Attorney Gen- 
 eral. (18 Op. Atty. Gen., 136. See file 26251- 
 10398:6, in which the Secretary of the Navy 
 assigned the law clerk in the office of the Judge 
 Advocate General as counsel to the judge advo- 
 cate in the trial of a commissioned officer by 
 court-martial ; and see Court of Inquiry Record, 
 No. 4952, in which the solicitor in the office of 
 the Judge Advocate General was assigned by 
 the Secretary of the Navy as associate and as- 
 sistant to the judge advocate.) 
 
 A judge advocate need not be a profes- 
 sional person. His qualifications must, of 
 course, be of the sort required by members of 
 the bar, but there is no law limiting choice of 
 judge advocates or of their assistants, when 
 needed, to that class. Although there is no 
 statutory provision in . regard to naval judge 
 advocates like that for those of the Army, to 
 the effect that they shall belong to the Navy, 
 yet in fact this is generally the case. So, also, 
 assistants for judge advocates might be detailed 
 from the same branch of service, or, indeed, 
 specially intelligent persons might be selected 
 from anv line of civil life. (18 Op. Atty. 
 Gen., 137.) 
 
 Counsel in foreign countries. — In view 
 of section 189, Revised Statutes, the Secretary 
 of the Nav>^ is not authorized to employ counsel 
 in foreign countries to institute suit in behalf 
 of the United States to recover for damages 
 caused to a war vessel of the United States, but 
 the case should be refen-ed to the Department 
 of Justice, which is charged with the duty of 
 determining when the United States shall sue, 
 for what it shall sue, and that such suits shall be 
 brought in appropriate cases. (21 Op. Atty. 
 Gen., 195, citing U. S. v. San Jacinto Tin Co., 
 125 U. S., 273, 279, 280; and In re Neagle, 135 
 U.S.,65, 67;seealso2Comp. Dec, 340). The 
 right and duty of the commander of a naval 
 vessel, or of the Secretary of the Navy, to 
 employ in an emergency counsel in a foreign 
 country, when necessary for the protection of 
 such vessel and all that pertains to it, are 
 not now decided, and would involve princi- 
 ples other than those passed upon in de- 
 termining the general question of employing 
 counsel in a foreign country in behalf of the 
 United States. Section 189,however, was passed 
 to correct what was considered an abuse by 
 tlie heads of departments of the power to employ 
 counsel. Its terms are undoubtedly broad 
 enough to cover any employment of counsel in 
 cases like that now in question, although they 
 have been so rare that they probably were not 
 a moving cause of the enactment of the law. 
 Congress, however, must have contemplated, 
 
 inasmuch as ships of war are constantly on the 
 high seas and in foreign ports, that questions 
 of law would arise in respect to them in the 
 administration of the Navy Department. 
 However, no exception whatever is made of 
 such cases in the law. (21 Op. Atty. Gen. , 195.) 
 
 Wliile as the law stands at the present time 
 it is doubtless within the pruvince of the Attor- 
 ney General only to employ counsel in foreign 
 coimtries to defend the United States against 
 suit for collision by a naval vessel, the Attorney 
 General has neither facilities for communicat- 
 ing with the naval officers abroad, nor has he 
 any method of ascertaining who would be the 
 most desirable attorneys to employ, or by what 
 particular method such employment should be 
 made. The Attorney General, therefore, re- 
 quested that the Secretary of the Navy act in 
 his stead in arranging for the employment of 
 counsel to defend a suit brought in the Supreme 
 Court of Hongkong by o^^^lers of a Chinese jimk, 
 Tung on Tai, against the master of the U . S . N . A . 
 Alexander. (File 4729-1, Apr. 24, 1906.) 
 
 If it was the intention of the Attorney Gen- 
 eral that the Secretary of the Navy should act 
 for him in selecting coxmsel, such employment 
 to be approved by the Attorney General and 
 the compensation of said counsel to be sti]m- 
 lated by him as provided by section 363, Re- 
 vised Statutes, counsel so employed would 
 be entitled to such compensation on the certifi- 
 cate of the Attorney General provided forin sec- 
 tion 365, Revised Statutes. But such compen- 
 sation is payable only from the appropriation for 
 payment of assistants to United States district 
 attorneys employed by the Attorney General to 
 aid in special cases, which appropriation spe- 
 cifically provides that it "shall be available also 
 for the payment of foreign counsel employed by 
 the Attorney General in special cases, and such 
 counsel shall not be required to take oath of office 
 in accordance with section 366, Revised Statutes 
 of the United States." (33 Stat., 1207; see also 
 act Aug. 24, 1912, 37 Stat., 465.) The employ- 
 ment by the Secretary of the Na\'y , and payment 
 from the appropriation for the Navy entitled 
 "Pay, Miscellaneous," of coimsel to defend the 
 master of the U. S. N. A. Alexander in the suit 
 referred to would be in direct contravention of 
 sections 189, 357, 363, and 365, Revised Statutes. 
 In view of these provisions, the item in that ap- 
 propriation, "cost of suits," can not properly be 
 construed as authorizing the employment and 
 payment of coimsel by the Navy Department. 
 (Comp. Dec, June 5, 1906; file 4729-5.) 
 
 If, as is understood to be the case, the fund 
 appropriated to the Department of Justice for 
 the payment of special counsel for the current 
 fiscal year is exhausted, it may be that the ap- 
 propriation for the next fiscal year may be ap- 
 propriately drawn upon in a case in which the 
 services of counsel, if now engaged, would 
 actually be rendered in the next fiscal year. 
 (Secretary of the Navy to Attorney General, 
 June 7, 1906; file 4729-1, 5.) This suggestion 
 was adopted, and upon completion of the 
 services the Attorney General advised the 
 Secretary of the Na\y that if the counsel em- 
 ployed will make out and forward an account 
 for"^his services in the case mentioned, from 
 Julv 1 of the current year to the date of the 
 
 223 
 
Sec. 190. 
 
 Pt. 2. REVISED STATUTES. Executive Departments. 
 
 conclusion of the case, the same will be ap- 
 proved by the Department of Justice and for- 
 warde<l to the Autlitor for the State and Other 
 Departments for examination, settlement, and 
 payment by warrant transmitted through the 
 United States consul at Hongkong. Such ac- 
 countshould not make any mention of expenses. 
 Owing to delay in payment which had already 
 occurred, the Secretary of the Navy, in pursu- 
 ance of an infornuil understanding with the De- 
 partment of Justice, cabled the commander in 
 chief of naval forces on the Asiatic station to 
 "pay and forward receipted bill" of counsel in 
 question. (File 4729-20, Nov., 1906.) 
 
 Difficulties are naturally to be expected when 
 statutes general in their terms, such as section 
 363 (and 189), Revised Statutes, are applied to 
 a case where counsel nmst be employed in a for- 
 eign country under unusual conditions. (Sec- 
 retary of the Navy to Attorney General, Nov. 
 9, 1906, file 4729-18.) The Department of Jus- 
 tice is without representatives abroad, and 
 therefore has no direct means of selecting suit- 
 able counsel. It seems appropriate that where 
 admiralty proceedings within the jurisdiction of 
 foreign countries are necessary, for the protec- 
 tion of the interests of the United States or those 
 of officers against whom suits are brought for 
 acts done in the line of duty, the Navy Depart- 
 ment, through the senior naval officer i)resent, 
 having direct knowle<lge of the matter, should 
 
 be authorized to employ counsel without delay. 
 (Secretary of the Navy to chairmen of the Com- 
 mittees on Naval Affairs, House of Representa- 
 tives and United States Senate, Apr. 28, 1906, 
 file 4729-1.) See also, to same effect. Annual 
 Report, Secretary of the Navy, 1906, page 17, 
 ana Appendix B, which refers to and quotes 
 memorandum of Judge Advocate General, No- 
 vember 24, 1906 (file 4729-21). 
 
 Naval officer detailed by Commander inChief, 
 Asiatic Fleet, as counsel for enlisted men in pro- 
 ceedings before U. S. Court for the Consular 
 District of Hankow, upon charge of manslaugh- 
 ter. (See file 12671-35.) 
 
 Oath of special counsel. — Special counsel 
 employed by the Attorney General at the re- 
 quest of heads of other departments, to assist in 
 the trial of a case in which the Government is 
 interested, must be commissioned by the De- 
 partment of Justice as a special assistant to the 
 Attorney General, or to some one of the district 
 attorneys, as the nature of the appointment may 
 require; and shall take the oath required by 
 law to be taken by the district attorneys. (Sec. 
 366, R. S.; 18 Op. Atty. Gen., 135.) But this 
 does nut apply to counsel employed in foreign 
 countries, ft-ho are not required to take oath of 
 office. (Act Aug. 24, 1912, 37 Stat., 465; file 
 4729-18.) 
 
 For other cases see note to section 362, Re- 
 vised Statutes. 
 
 Sec. 190. [Persons formerly in Departments not to prosecute claims.] It 
 shall not be la^^'flll for any person appointed after the first day of June, one 
 thousand eight hundred and seventy-two, as an ofricer, clerk, or employe in 
 any of the Departments, to act as counsel, attorney, or agent for prosecuting 
 any claim against the United States which was pending in either of said De- 
 partments while he was such officer, clerk, or employe, nor in any manner, nor 
 by any means, to aid in the prosecution of any such clami, within two years 
 next after he shall have ceased to be such officer, clerk, or employe. — (1 June, 
 1872, c. 256, s. 5, vol. 17, p. 202.) 
 
 Sec. 113, Criminal Code, act of March 4, 1909(35 
 Stat., 1109), prohibits any Senator, Repre- 
 sentative, or Delegate in Congress, and offi- 
 cers and clerks in the employ of the Gov- 
 ernment, from accepting compensation for 
 services rendered to any person in rela- 
 tion to any proceeding in which the United 
 States is a party, before any department, 
 court-martial, bureau, officer, or civil, 
 miUtary, or naval commission whatever. 
 
 Sec. 109, Criminal Code, act of March 4, 1909 (35 
 Stat., 1107), prohibits every officer of the 
 United States, or person holding any place 
 of trust or profit or discharging any official 
 function in connection with any executive 
 department, the Senate, or House of Rep- 
 resentatives, to act as agent or attorney for 
 prosecuting any claims against the United 
 States, or otherwise than in the discharge 
 of his proper official duties to assist in the 
 prosecution of any such claim. 
 A retired oflB.cer of the Army is "an officer 
 
 of the United States" within the meaning of 
 
 section 5498, Revised Statutes [superseded by 
 
 section 109, Criminal Code, act of March 4, 1909, 
 35 Stat., 1107], and therefore prohibited from act- 
 ing as an agent or attorney for prosecuting any 
 claim against the United States. (Tyler's case, 
 18 Ct. Cls., 25.) In this case the Court of Claims 
 followed the decision of the Supreme Court in 
 Tyler v. United States (105 U. S., 244) wliich 
 held that a retired officer of the Army is in the 
 service of the United States. In Winthrop's 
 case (31 Ct. Cls., 35), the Court of Claims affirmed 
 its previous decision in Tyler's case, and ex- 
 pressly dissented from the decision of the New 
 York Court of Appeals, rendered in People v. 
 Duane (121 N. Y., 373), which held that a 
 retired officer of the Army does not hold a 
 Federal office. In the Winthrop case the Court 
 of Claims cited in support of its decision Wood's 
 case (15 Ct. Cls., 151; affirmed 107 U. S., 414), 
 Franklin's case (29 Ct. Cls., 6), Badeau's case 
 (130 U. S., 439), and Texas v. De Gress (53 Tex., 
 400) . The cases were reviewed by the Attorney 
 General in an opinion to the Secretary of the 
 Navy, May 17, 1912 (29 Op. Atty. Gen., 397), 
 holding that a retired officer of the Marine Corps 
 
 224 
 
Executive Departments. Pt.2. REVISED STATUTES. 
 
 Sec. 192. 
 
 is an officer in the employ of the Government, 
 and, as such, is prohibited by section 1782, Re- 
 vised Statutes, from accepting compensation for 
 appearing before any department, coiu"t-martial, 
 etc. In this opinion, the Attorney General also 
 dissented from the case of People v. Duane, 
 and the case of Reed v. Schon (2 Cal. App., 57). 
 [Note: Section 1782, Revised Statutes, was su- 
 
 perseded and repealed by Criminal Code, act 
 of March 4, 1909, sections 113 and 341, 35 Stat , 
 1109 and 1153.] 
 
 The Civil Service Coinmission ie not an 
 executive department within the meaning of 
 this section. (25 Op. Atty. Gen., 6.) As to 
 definition of " Departments," see note to sec- 
 tion 159, Revised Statutes. 
 
 Sec. 191. [Certified balances conclusive in settlement of public accounts. 
 Repealed.] 
 
 This section provided as foUovrs: 
 
 "Sec. 191. The balances which may from 
 time to time be stated by the auditor and certi- 
 fied to the heads of departments by the Com- 
 missioner of Customs, or the Comptrollers of the 
 Treasury, upon the settlement of public ac- 
 counts, shall not be subject to be changed or 
 modified by the heads of departments, but 
 shall be conclusive upon the executive branch 
 of the Government, and be subject to revision 
 only by Congress or the proper courts. The 
 head of the proper department, before sign- 
 ing a warrant for any balance certified to him 
 by a Comptroller, may, however, submit to 
 
 such Comptroller any facts in his judgment 
 affecting the correctness of such balance, 
 but the decision of the Comptroller thereon 
 shall be final and conclusive, as hereinbefore 
 provided."— (30 Mar., 1868, c. 36, s. 1, v. 15, 
 p. 54.) 
 
 It was expresslyrepealedbyactof July 31, 
 1894, section 8 (28 Stat., 208), which act con- 
 tained proA-isions completely covering the sub- 
 ject matter of this section. 
 
 As to effect of accounting officers' ac- 
 tion, and references to cases in which this sec- 
 tion has been considered, see on general sub- 
 ject section 236, Revised Statutes, and note. 
 
 Sec. 192. [Expenditures for newspapers.] The amount expended in any one 
 year for newspapers, for any Department, except the Department of State, in- 
 cluding all the Bureaus and offices connected therewith, shall not exceed one hun- 
 dred dollars. And all newspapers purchased with the public money for the 
 use of either of the Departments must be preserved as files for such Depart- 
 ment.— (26 Aug., 1842, c. 202, s. 16, v. 5, p. 526.) 
 
 The latter portion of this section requiring 
 newspapers purchased for the use of execu- 
 tive departments to be preserved for the 
 permanent files of such departments, was 
 expressly repealed by act of June 22, 1906, 
 section 7 (34 Stat., 449). 
 
 By act of June 19, 1878 (20 Stat., 171), punish- 
 ment was provided for stealing, wrongfully 
 defacing, injuring, mutilating, tearing, or 
 destroying any newspaper, the property of 
 the United States. 
 
 By section 1779, Revised Statutes, it is pro- 
 vided that "no executive officer other than 
 the heads of departments, shall apply more 
 than $30 annually out of the contingent 
 fund under his control to pay for newspa- 
 pers, pamphlets, periodicals, or other books 
 or prints not necessary for the business of 
 his office." 
 
 Section 192 has been modified so as not to apply 
 to subscriptions to newspapers by the Alili- 
 tary Information Division, Adjutant Gen- 
 eral's Office of the Army, for the fiscal years 
 1898 and thereafter. (Armv appropriation 
 act. Mar. 2, 1903, 32 Stat., 929; joint reso- 
 lution, June 29, 1898, 30 Stat., 749.) 
 
 Section 3648, Re\'ised Statutes, provides that 
 "no advance of public money shall be made 
 in any case whatever," and that payment 
 shall not exceed the value of articles previ- 
 ously delivered. Congress has repeatedly 
 enacted that this prohibition shall not apply 
 
 to subscriptions to newspapers in specified 
 cases. See Naval appropriation act, Au- 
 gust 22, 1912 (37 Stat., 350), and subsequent 
 years, as to foreign and domestic periodicals 
 for the Naval Academy; Army appropria- 
 tion act, April 23, 1904 (33 Stat., 260), as to 
 foreign and professional newspapers and 
 periodicals for Military Information Divi- 
 sion, General Staff Corps; Army appropria- 
 tion act, March 3, 1911 (36 Stat., 102-5), as to 
 foreign, professional, and other newspapers 
 and periodicals for Military Academy; Army 
 appropriation act, March 3, 1909 (35 Stat., 
 733), as to subscriptions from the appropria- 
 tions for the Coast Artillery School, Fort 
 Monroe, Va. ; sundry civil appropriation act, 
 March 3, 1905 (33 Stat., 1182), as to subscrip- 
 tions for publications for use in the Immi- 
 gration Service at large; agricultural appro- 
 priation act, March 4, 1909 (35 Stat., 1054), 
 as to publications for use of Department of 
 Agriculture. (This prohibition does not 
 apply to subscriptions from profits on sales 
 by ships stores in the Navv. Comp. Dec, 
 Aug. 11, 1914, file 26254-1571:2; see also 
 act June 24, 1910, 36 Stat., 619.) 
 
 Subscriptions for "periodicals" required for 
 official use may be paid in advance. 
 (Act Mar. 4, 1915, 38 Stat., 1049.) 
 
 Hereafter subscriptions for newspapers and 
 periodicals for the naval service may be 
 paid for in advance. (Act Mar. 3, 1915, 
 38 Stat., 929.) 
 
 225 
 
Sec. 193. 
 
 PL 2. REVISED STATUTES. 
 
 Executive Departments. 
 
 " No executive department or other Government 
 establishment of the United States shall ex- 
 pend, in any one fiscal year, any sum in 
 excess of a])i)ro]>riations nuule by Congress 
 for that fiscal year, or involve the Govern- 
 ment in any contract or other obligation for 
 the future payment of money in excess of 
 such appropriations unless such contractor 
 obligation is authorized by law." (Sec. 
 367!), R. S., as amended by act Feb. 27, 
 1906, 34 Stat., 48; see also section 3732, 
 R. S,, as amended by act of June 12, 1906, 
 34 Stat., 205.) 
 Newspapers are not periodicals within 
 the meaning of act of March 15, 1898, section 3 (30 
 Stat., 316), providing that thereafter periodicals 
 
 for the use of any executive department at the 
 seat of Government shall not be paid for from 
 any appro])riation for contingent expenses or 
 for any s])ecili(; or general purpose uidess spe- 
 cifically authorized by the law granting the ap- 
 ])roi)riation. (4 Comp. Dec, 694.) 
 
 Purchase after advertisement. — The 
 Navy Department desires that all newspapers 
 and periodicals, both American and foreign, for 
 the Naval Establishment, for use on shore, both 
 in and outside the continental limits of the 
 United States, except such as may be purchased 
 by naval attaches, shall be purchased after ad- 
 vertisement in the public press. (Circular, 
 Oct. 6, 1914, file 12809-83.) 
 
 Sec. 193. [Annual report of expenditures from contingent funds.] The head 
 of each Department shall make an annual report to Congress, giving a detailed 
 statement of the manner in which the contingent fund for his Department, and 
 for the Bureaus and offices therein, has been expended, giving the names of 
 every person to whom any portion thereof has been paid; and if for anything 
 furnished, the quantity and price; and if for any service rendered, the nature 
 of such service, and the time employed, and the particular occasion or cause, 
 in brief, that rendered such service necessary; and the amount of all former 
 appropriations in each case on hand, either in the Treasury or in the hands of 
 any disbursing officer or agent. And he shall require of the disbursing officers, 
 acting under his direction and authority, the return of precise and analytical 
 statements and receipts for all the moneys which may have been from time to 
 time during the next preceding year expended by them, and shall communicate 
 the results of such returns and the sums total, annually, to Congress. — (26 Aug., 
 1842, c. 202, s. 20, v. 5, p. 527.) 
 
 Shnilar provisions were contained in acts of 
 June 20, 1874 (18 Stat., 96); March 3, 1875 
 (18 Stat., 355); August 15, 1876 (19 Stat., 
 156); March 3, 1877 (19 Stat., 306). _ _ 
 
 For complete references to laws requiring re- 
 ports to be made by Secretary of the Navy, 
 see section 429, Revised Statutes, and note 
 thereto. 
 
 "All appropriations for specific, general, and 
 contingent expenses of the Navy Depart- 
 ment shall be under the control and ex- 
 pended by direction of the Secretary of the 
 Navy." (Sec. 3676, R. S.) 
 
 "No moneys appropriated for contingent, in- 
 cidental, or miscellaneous purposes shall 
 be expended or paid for official or clerical 
 compensation." (Sec. 3682, R. S.) 
 
 No person shall be employed in any executive 
 department or be paid from any appropria- 
 tion made for contingent expenses, unless 
 such employment is authorized and pay- 
 ment therefor specifically provided in the 
 law granting the appropriation. (Act 
 Aug. 5, 1882, sec. 4, 22 Stat., 255.) 
 
 No purchases shall be made from the contin- 
 gent fund of any department, bureau, or 
 office, except upon written order of the 
 head of the department. (Sec. 3683. R. S.) 
 
 Expenditures from contingent funds for news- 
 papers, pamphlets, periodicals, or other 
 books or prints, are limited by section 1779, 
 Revised Statutes. (See note to sec. 192, 
 R. S.) 
 
 Expenditures from contingent funds for law 
 books, books of reference, and periodicals, 
 are prohibited, unless specifically author- 
 ized by the appropriation. (Act Mar. 15, 
 1898, sec. 3, 30 Stat., 316.) 
 
 Appropriations for contingent expenses must 
 be apportioned by monthly or other allot- 
 ments at the beginning of fiscal year, so as 
 to prevent deficiency before end of year; 
 and such apportionment must be adhered 
 to, under penalty of summary dismissal and 
 fine or imprisonment, except in case of 
 extraordinary emergency. (Act Feb. 27, 
 1906, 34 Stat., 48.) 
 
 Use of contingent funds is authorized for in- 
 vestigations of title to land purchased for 
 navv yards, public buildings, etc. (Sec. 
 355,' R. S.) 
 
 Expenses of insane persons belonging to the 
 Navy or Marine Corps may be paid from 
 annual appropriation for naval service un- 
 der head of contingent eniunerated. (Sec. 
 1551, R. S.) 
 
 226 
 
Executive Departments. Ft. 2. REVISED STATUTES. 
 
 Sec. 197. 
 
 Sec. 194. [Report of clerks employed. Repealed.] 
 
 This section read as follows: 
 
 "Sec. 194. The head of each, department 
 shall make an annual report to Congress of the 
 names of the clerks and other persona that have 
 been employed in his department and the 
 offices thereof; stating the time that each clerk 
 or other person was actually employed, and the 
 Bums paid to each; also, whether they have 
 been usefully employed; whether the services 
 of any of them can be dispensed with without 
 detriment to the public service, and whether 
 the removal of any individuals, and the appoint- 
 ment of others in their stead, is required for the 
 better dispatch of business. " — (26 Aug., 1842, c. 
 202, s. 11, V. 5, p. 525.) 
 
 It was repealed by act of March 2, 1895, 
 sections (28 Stat., 808). 
 
 The Secretary of the Navy is required 
 to make annual report to Congress of civil- 
 ians employed on clerical duty from ' 'Pay of the 
 Navy," and other naval appropriations (act 
 Jan. 30, 1885, 23 Stat., 295); and is required to 
 make a similar report of the number and com- 
 
 pensation of persons employed from "Increase 
 of the Navy" and other general appropriations 
 (act Apr. 17, 1900, 31 Stat., 117); also, a report of 
 persons employed for technical services from ap- 
 propriations "Equipment of Vessels," "Steam 
 Machinery, " "Construction and Repair, "'"Ord- 
 nance and Ordnance Stores, " and from appro- 
 priations and allotments under the Bureau of 
 Yards and Docks. (Act Mar. 4, 1913, 37 Stat., 
 768, 770, 771, and appropriation acts for subse- 
 quent years.) 
 
 Heads of departments are required to 
 report to Congress employees detailed to other 
 offices in accordance with section 166, Revised 
 Statutes, as amended. (Act Mar. 2, 1895, sec. 
 7, 28 Stat., 808.) Also required to report 
 number of employees in each bureau and office 
 below a fair standard of efficiencv, and the 
 salary of each. (Act Julv 11, 1890, sec. 2, 26 
 Stat., 268.^ 
 
 For other reports required of the Secretary 
 of the Navy, see section 429, Revised Statutes, 
 and note. 
 
 Sec. 195. [Time of making annual reports to Congress.] Except where a 
 different time is expressly prescribed by law, the various annual reports re- 
 quired to be submitted to Congress by the heads of Departments shall be made 
 at the commencement of eacli regular session, and shall embrace the transac- 
 tions of the preceding year. — (See all acts requiring reports.) 
 
 For reports required to be made by the Secre- 
 tary of Navy, see section 429, Revised 
 Statutes, and note. 
 
 Neglect or refusal of any officer to make any 
 report within the time prescribed by law is 
 punishable bv fine of not more than .?1,000. 
 (Sec. 101, Criminal Code, act Mar. 4, 1909, 
 35 Stat., 1107.) 
 
 Sec. 196. [Time of furnishing annual reports to printer.] The head of each 
 Department, except the Department of Justice, shall furnish to the Congres- 
 sional Printer copies of the docmnents usually accompanying his annual report, 
 on or before the first day of November in each year, and a copy of his annual 
 report on or before the third Monday of November in each year. — (25 June, 
 1864, c. 155, ss. 1, 3, v. 13, pp. 184, 5; 22 June, 1870, c. 150, s. 12, v. 16, 
 p. 164.) 
 
 The above section was amended by a clause 
 contained in the sundrv ci\dl appropriation 
 act of August 1, 1914 (38 Stat., 680), requir- 
 ing that, during that fiscal year, copy be fur- 
 nished to the Public Printer as follows: 
 Copies of documents accompanying annual 
 reports, on or before the 15th day of Oc- 
 tober; copies of annual reports, on or before 
 the 15th day of November; and complete 
 revised proofs of accompan\-ing documents 
 and annual reports, on the 10th and 20th 
 days of November, respectively. (30 Op. 
 Atty. Gen., 293.) This provision was re- 
 
 f)eated in the sundry civil act for the fol- 
 owing year, and was made permanent by 
 
 act of July 1, 1916 (39 Stat., 336). which 
 further requires that said reports and ac- 
 companying documents be printed, made 
 public and available for distribution with- 
 in the first five days after the assembling 
 of each regular session of Congress. 
 
 Illustrations, maps, etc., are to be excluded 
 from annual reports, except such as are nec- 
 essary. (Act Aug. 30, 1890, 26 Stat., 411.) 
 
 Reports are not to be distributed with "the 
 compliments " of any officer of the Govern- 
 ment. (Act Jan. 12, 1895, sec. 73, 28 Stat., 
 620; act Mar. 3, 1893, 27 Stat., 612; act 
 Aug. 5, 1892, 27 Stat., 388.) 
 
 Sec. 197. [Inventories of Department property.] The Secretary of State, 
 the Secretary of the Treasuiy, the Secretary of the Interior, the Secretary of 
 War, the Secretary of the Navy, the Postmaster-General, the Attorney-General, 
 
 227 
 
Sec. 198. 
 
 Pt. 2. REVISED STATUTES. Executive Departments. 
 
 and Commissioner of Agriculture shall keep, in proper books, a complete inven- 
 tory of all the property belonging to the United States in the buildings, rooms, 
 offices, and grounds occupied by them, respectively, and under their charge, 
 adding thereto, from time to time, an account of such property as may be 
 procured subsequently to the taking of such inventory, as well as an account 
 of the sale or other disposition of any of such property, [except suppUes of 
 stationery and fuel in the public offices and books, pamphlets, and papers in 
 the Library of Congress].— (15 July, 1870, c. 300, s. 1, v. 16, p. 364; 27 Feb., 
 1877, c. 69, V. 19, p. 241.) 
 
 22 Stat., 296.) The Bureau of Supplies and 
 Accounts is required to report annually to 
 Congress an account of supplies at the various 
 stations pertaining to the Naval Establish- 
 ment. (Act Mar. 2, 1889, 25 Stat., 817.) 
 
 Disposition of useless papers in executive 
 departments is provided for by act of Febru- 
 ary 16, 1889 (25 Stat., 672), amended by act 
 of March 2, 1895 (28 Stat., 933). Other pro- 
 visions of law on the same subject, relating 
 specifically to the Navy, are contained in 
 act of February 16, 1909, section 14 (35 
 Stat., 622), act of August 22, 1912 (37 Stat., 
 329), and naval appropriation act of March 
 3, 1915 (38 Stat., 929). 
 
 On general subject of custody of public property, 
 see note to section 161, Revised Statutes. 
 
 This section was amended to read as above by 
 act of February 27, 1877, section 1 (19 Stat., 
 241), the amendment consisting in adding 
 to the original section the words printed in 
 brackets. 
 
 A similar provision with reference to the Post 
 Office Department is contained in section 
 397, Revised Statutes, and with reference to 
 the Capitol, Botanical Garden, and the Pres- 
 ident's House in section 1833, Revised 
 Statutes. Both of these sections require an 
 annual report to Congress of the required 
 inventory and account. 
 
 The Secretary of the Navy is required to report 
 to Congress armually account of proceeds 
 from sales of public property. (Sees. 429, 
 1541, and 3672, R. S., and act Aug. 5, 1882, 
 
 Sec. 198. [Data to be furnished for Biennial Register.— Superseded.] 
 
 This section provided as follows: 
 
 "Sec. 198. The head of each department 
 shall, as soon as practicable after the last day 
 In September in each year in which a new 
 Congress is to assemble, cause to be filed in the 
 Department of the Interior a full and complete 
 list of all officers, agents, clerks, and employees 
 employed in his department, or in any of 
 the offices or bureaus connected therewith. 
 He shall include in such list all the sta- 
 tistics peculiar to his department required 
 to enable the Secretary of the Interior to pre- 
 pare the biennial register." — (27 Apr., 1816, 
 Res. No. 6, s. 1, v. 3, p. 342; 3 Mar., 1851, c. 
 32, 8. 1, V. 9, p. 600; 14 July, 1832, Res. No. 
 11, V. 4, p. 608.) 
 
 It-was supersededbyactof January 12, 1895, 
 section 73 (28 Stat., 618), which contained de- 
 tailed provisions concerning data to be fur- 
 nished the Secretary of the Interior for publi- 
 cation in the "Official Register of the United 
 States" every two years. By act of June 7, 1906 
 (34 Stat., 219), it was provided that "The Direc- 
 tor of Census shall edit, index, and publish the 
 Official Register of the United States, and the 
 provisions of existing law imposing that duty 
 upon the Department of the Interior are hereby 
 repealed, and the data to be included in the 
 Official Register, which is now required to be 
 transmitted to the Secretary of the Interior, 
 shall hereafter be transmitted to the Director 
 of the Census." 
 
 228 
 
TITLE yil. 
 DEPARTMENT OF THE TREASURY. 
 
 Sec. 
 
 233. Establishment of Department of the 
 Treasury. 
 
 236. Settlement of public accounts. 
 
 237. Commencement of fiscal year. 
 
 248. Forms of keeping and rendering accounts, 
 etc. 
 
 250. Settlement of accounts within fiscal year. 
 
 251. Rules, regulations, and forms. 
 255. Appointment of disbursing agents. 
 
 260. Reports upon appropriations for Depart- 
 ments of War and Navy. 
 
 264. Report of Coast Survey expenditures. 
 
 266. Quarterly publication of receipts and ex- 
 penditures. 
 
 268. Comptrollers. 
 
 269. Duties of First Comptroller. 
 
 271. Power to direct settlement of accounts. 
 
 272. Report of officers failing to make settle- 
 
 ment. 
 
 273. Duties of Second Comptroller. 
 
 274. Arrears of pay due deceased seamen. 
 
 275. Signing bounty certificates. 
 
 276. Auditors. 
 
 277. Duties of auditors. 
 
 Sec. 
 
 283. Accounts of Departments of War and the 
 
 Navy. 
 
 284. Accounts of pay officer of lost vessel. 
 
 285. Disbursements by order of commanding 
 
 officer. 
 
 286. Fixing date of loss of missing vessels. 
 
 287. Accounts of seamen on lost vessel. 
 
 288. Compensation for personal effects lost. 
 
 289. Payment in case of death. 
 
 290. Allowance to officers for personal effects 
 
 lost. 
 297. Auditors may administer oaths. 
 
 300. Allowance of lost checks. 
 
 301. Treasurer. 
 
 303 . Assistant Treasurer. 
 
 305. Duties of the Treasurer. 
 
 306. Liabilities outstanding three or more 
 
 years. 
 
 307 . Vouchers for drafts remaining unpaid . 
 
 308. Payment upon presentation of outstanding 
 
 drafts. 
 
 309. Accounts of disbursing officers unchanged 
 
 for three years. 
 
 310. Annual reports of disbursing officers, etc. 
 
 CHAPTER ONE. 
 THE DEPARTMENT. 
 
 Sec. 233. [Establishment of Department of the Treasury.] There shall be 
 at the seat of Government an Executive Department to be known as the De- 
 partment of the Treasury, and a Secretary of the Treasury, who shall be the 
 head thereof.— (2 Sept., 1789, c. 12, s. 1, v. 1, p. 65.) 
 
 See note to section 158 Revised Statutes, concerning executive departments in general. 
 
 Sec. 236. [Settlement of public accounts.] All claims and demands what- 
 ever by the United States or against them, and all accoimts whatever in which 
 the United States are concerned, either as debtors or as creditors, shall be settled 
 and adjusted in the Department of the Treasury. — (3 March, 1817, c. 45, s. 2, 
 V. 3, p. 366. U. S. V. Mann, 1 Brock, 9 [should be 2 Brock, 9]. Cooke et al. 
 V. U. S., 91 U. S., 389.) 
 
 See act of July 31, 1891 (28 Stat., 205 et seq.), 
 relating to the duties of Comptroller of the 
 Treasury and Auditor for the Navy Depart- 
 ment. 
 
 Property accounts. — Settlement of, is provided 
 for by act of March 29, 1894 (28 Stat., 
 47). 
 
 Inspection of books and records. — By act of 
 March 15, 1898 (30 Stat., 316), it is provided 
 
 that "all books, papers, and other matters 
 relating to the accounts of officers of the 
 Government in the District of Columbia 
 shall at all times be subject to inspection 
 and examination by the Comptroller of the 
 Treasury and the Auditor of the Treasury 
 authorized to settle such accounts, or by 
 the duly authorized agents of either of said 
 officials." 
 
 229 
 
Sec. 236. 
 
 Pt.2. REVISED STATUTES. 
 
 Treasury Department. 
 
 Report of claims allowed. — "The Secretary of 
 the Treasury shall, at the commencement 
 of each session of Congress, report the 
 amount due each claimant whose claim has 
 been allowed in whole or in part to the 
 Speaker of the House of Representatives 
 and the presiding officer of the Senate, who 
 shall lay the same before their respective 
 houses for consideration." (Act July 7, 
 1884, 23 Stat., 254.) 
 
 Report of delinquent officers. — Provision for 
 annual report to Congress by the Secre- 
 tary of the Treasury of officers delinquent 
 in rendering accounts is contained in act 
 May 28, 1896, section 4 (29 Stat., 179). 
 
 Assigmnent of claims against United States is 
 restricted by section 3477, Revised Stat- 
 utes; assignment of pay by enlisted men, 
 Navy , isperiuitted by section 1576, Revised 
 Statutes ; to be discouraged by commanding 
 officer, section 1430, Revised Statutes; al- 
 lotment of pay by officers. Navy, is per- 
 mitted by act of June 10, 1896 (29 Stat., 361) . 
 
 I. Scope of Section. 
 II. Jurisdiction of Accounting Officers. 
 
 III. Limitations upon Jurisdiction. 
 
 IV. Jurisdiction, Accounting Officers 
 
 AND Federal Courts. 
 V. Jurisdiction, Accounting Officers 
 AND Heads of Executive Depart- 
 ments. 
 VI. Set-off. 
 
 VII. Effect of Accounting Officers' Ac- 
 tion. 
 VIII. Reopening of Accounts. 
 IX. Mandamus Proceedings to Compel 
 Payments. 
 
 I. Scope of Section. 
 
 Applies only to Treasury Department 
 proper. — All claims against the United States 
 are to be settled and adjusted in the Treasury 
 Department; and that is located "at the seat 
 of Government." The assistant treasurer in 
 New York is a custodian of public money, 
 which he may pay out or transfer upon the 
 order of the proper department or officer; but 
 he has no authority to settle and adjust — that 
 is to say, to determine upon the validity of, 
 any claim against the Government. He can 
 pay only after the adjustment has been made 
 "in the Department of the Treasury," and then 
 upon drafts drawn for that purpose by the 
 Treasurer. (Cooke v. U. S., 91 U. S., 399.) 
 
 Ofl&cers charged ■«rith. execution of sec- 
 tion. — The principal officers to whom the 
 great responsibility of settling and adjusting 
 accounts under this section is committed by 
 law are called "accounting officers," which in- 
 cludes the auditors, each acting separately 
 upon different classes of accounts, and the 
 Comptroller of the Treasury. The different 
 processes in the settlement of claims and de- 
 mands upon the Government, from their re- 
 ceipt by the auditor, through the several stages 
 
 of examination, certification, and drawing of 
 warrants for payment, up to the time when the 
 Treasurer issues his drafts, are all matters of 
 accounting to justify the Treasurer in paying 
 out the public money, and are not consummated 
 beyond recall until the claimants receive the 
 negotiable drafts of that officer, drawn, accord- 
 ing to the convenience of the parties, upon the 
 Treasury proper, in Washington, or upon one 
 of the several assistant treasurers or designated 
 depositaries in other places. (McKnight's 
 case, 13 Ct. Cls., 305; affirmed 98 U. S., 179.) 
 
 "Accounting officers " is a phrase well known 
 as referring to the auditors and Comptroller 
 of the Treasury, who pass upon all claims 
 against the Government before they can be, 
 paid out of the Public Treasury. (Moncure v.' 
 Zunts, 11 Wall., 416, 422.) 
 
 In matters of accounting, the several public 
 officers act independently of each other, al- 
 though the Secretary of the Treasury, being the 
 head of the department, has a right generally 
 to control or revise, to some extent, the action 
 of others in subordinate official positions, and 
 the Comptroller has some power over an 
 auditor and is not bound by the action of that 
 officer which is certified to him. (McKnight's 
 case, 13 Ct. Cls., 306, 307; affirmed 98 U. S., 179.) 
 
 The Secretary of the Treasury may, when in 
 his judgment the interests of the Government 
 require it, suspend payment and direct the re- 
 examination of any account. (Act July 31, 
 1894, sec. 8, 28 Stat., 207.) 
 
 Section 236, Revised Statutes, must be con- 
 strued in connection with sections 273-277, Re- 
 vised Statutes, which specify the jurisdiction 
 of the accounting officers. (Dig. Dec. Second 
 Comptroller, v. 3, par. 735.) 
 
 The general provision of law governing the 
 manner of settling claims against the Govern- 
 ment is found in section 236, Revised Statutes. 
 This section was taken from section 2 of act of 
 March 3, 1817 (3 Stat., 366), and ^vithout detail- 
 ing the minor changes which have been made in 
 special cases, it is suflicieut to state that the law 
 has continued substantially the same ever since. 
 This power of the Treasury Department to settle 
 claims against the United States is exercised 
 by the accounting officers, and under the pres- 
 ent law the Auditor for the Navy Department 
 is charged with the duty of settling all claims 
 arising under the naval establishment. (4 
 Comp. Dec, 587.) 
 
 Tills section provides that all claims and de- 
 mands against and by the United States shall 
 be settled and adjusted in the Treasury Depart- 
 ment, and by section 7 of the act of July 31, 1894 
 (28 Stat., 206), the Auditor for the Navy De- 
 partment shall receive and examine all ac- 
 counts of the naval establishment. The intent 
 of these laws is that bona fide claimants shall 
 have their claims considered by the account- 
 ing officers. (Comp. Dec, Dec. 17, 1904, 46 
 S. and A. Memo., 459.) 
 
 Status of accounting officers. — The ac- 
 counting officers do not constitute a "depart- 
 ment" within the meaning of a law referring 
 to claims "rejected or reported on adversely 
 by any court, department, or commission au- 
 thorized to hear and determine the same." 
 (U. S. V. Harmon, 147 U. S., 273.) 
 
 230 
 
Treasury Department. 
 
 Ft. 2. RE VISED S TA T UTES.. 
 
 Sec. 236. 
 
 The accounting officers of the Treasury are 
 neither contracting nor disbursing officers. In 
 the case of disbursing officers, the policy of the 
 Government has been to acknowledge no pay- 
 ments as made on its behalf save those wliich 
 were authorized by law. However, where the 
 accounting officers of the Treasury have juris- 
 diction to settle an account or claim against the 
 Government, a mistake of law committed inci- 
 dentally in the adjustment will not, after pay- 
 ment of the balance found to be due, affect the 
 finality of the settlement or entitle the Govern- 
 ment to recover back the money paid in mis- 
 take of law. (McKee v. U. S., 12 Ct. Cls., 533, 
 534; reversed on other grounds, 97 U. S., 233.) 
 See below " \"III, Reopening of accounts." 
 
 Under a special statute providing that the 
 accounting officers shall "settle and adjust" a 
 claim therunder, the duties of the accounting 
 officers were administrative, not judicial, and 
 the Court of Claims was not divested of juris- 
 diction over said claim. (McLean v. U. S., 
 226 U. S., 374, 378, citing Medbury v. U. S., 
 173 U. S. 492.) 
 
 Itemized accounts required. — For the ex- 
 penditure of all public moneys it is the invaria- 
 ble rule to require that accounts shall be item- 
 ized as far as practicable, in order that the ac- 
 counting officers may properly audit them. 
 The law may permit the exercise of discretion 
 in the use of public funds without dispensing 
 with the usual requirement of an itemized ac- 
 count showing fully for what purposes the 
 money has been expended. (4 Comp. Dec, 
 159; 4 Comp. Dec, 271.) 
 
 The rules prescribed by the Treasury 
 Department for the adjustment of claims 
 against the Government will, if reasonable, be 
 regarded by the courts; but if these rules go to 
 a complete denial of justice to the individual 
 the court, if it have jurisdiction of the subject, 
 can not disregard the rights of tlie parties. 
 (U. S. V. Maun, 26 Fed. Cas. No. 15716, per Mar- 
 shall, C. J.) 
 
 Taking security for debt to the Govern- 
 ment. — It is not generally within the duties 
 of public officers to take collateral security, and 
 whenever they do so they are usually acting 
 beyond the scope of their official authority and 
 the United States are not bound by their 
 agreements. However, where public officers, 
 looking to the best interests of the Government, 
 do sometimes accept such security without re- 
 leasing the debtors or subjecting the United 
 States to liability, in so far as the arrangements 
 are consummated for the benefit of the Gov- 
 ernment they may l^e upheld, and the officers 
 commended for their vigilance and zeal in the 
 public service. (Taggart v. U. S., 17 Ct. Cls., 
 322.) _ 
 
 Claims against Government voluntarily 
 settled from private funds. — A naval 
 militia officer who voluntarily pays an obliga- 
 tion of the United States is not entitled to 
 reimbursement from the Government. (Comp. 
 Dec, Feb. 17, 1915, Appeal No. 24365, file 
 26254-1709, citing 4 Comp. Dec, 409; 6 
 Comp. Dec, 594; 8 Comp. Dec, 584; 11 Comp. 
 Dec, 486; 12Comp.Dec,48.) [In a reconsider- 
 ation in this case May 22, 1915, it was held that, 
 owing to exceptional circumstances, reimburse- 
 
 ment should be allowed, applying 18 Comp. 
 Dec, 299, holding that "Anofficer of the United 
 States is not, ordinarily, authorized to advance 
 his private funds in payment of any claim 
 against the United States except for expenses 
 incurred by him personally for travel or other 
 personal expense allowed by the terms of his 
 employment. But this is a rule of accounting 
 and should not be permitted to hinder the pub- 
 lic business or prevent the payment of just and 
 lawful claims against the Government."] 
 
 II. Juris DicTioisr op Accounting Officers. 
 
 In general. — Substantially all accounts 
 must pass under the eye and receive the ap- 
 proval of the accounting officers of the Treas- 
 ury. Even the accounts of the Secretary of 
 the Treasury and of the President come to them 
 for allowance. The business of the account- 
 ing officers ia to determine what payments 
 shall or shall not be made on behalf of the 
 United States. These functions of office were 
 a part of the wondrous birth of the Treasury 
 system, and have remained unchanged from 
 the foundation of the Government to the pres- 
 ent time. It is well known that the Comp- 
 trollers have sometimes construed statutes in 
 one way and the courts subsequently in another. 
 Such diversity of judgment is inevitable in the 
 administration of human affairs, and the wonder 
 is that there has been so little of it on the part 
 of these officers. (McKee v. U. S., 12 Ct. Cls., 
 532, 534; reversed on other grounds, 97 U. S., 
 233.) 
 
 The law devolves upon the accounting offi- 
 cers of the Treasury the duties of examining, 
 settling, and adjusting all accounts, claims and 
 demands in which the United States are con- 
 cerned, either as debtors or as creditors, and to 
 certify balances arising thereon; their exercise 
 of such duties includes the weighing of evi- 
 dence, the construction of statutes, and the 
 application of general principles of law in con- 
 nection therewith. (5 Comp. Dec, 410; 14 
 Comp. Dec, 169.) 
 
 It IS the theory, and a wise one, upon which 
 the final adjustment and settlement of accounts 
 in the Treasury Department is founded, that 
 the officers who pass upon them shall be wholly 
 distinct from those who expend the money or 
 incur the liabilities. For the manner in which 
 these latter officers perform the trust imposed 
 upon them they alone are responsible; the 
 Comptroller is only charged with the duty of 
 seeing that they keep within the law. (Waters -y. 
 U. S., 21 Ct.Cls., 38.) 
 
 The organization of the Department of the 
 Treasury is comprehensive, thorough, and 
 exact; it is supplied not only with skilled 
 accountants but special law officers, and be- 
 sides has on i)roper occasions the right to call 
 in aid the opinion of the Attorney General of 
 the United States; it seems fully equipped for 
 the discharge of every fiscal duty and exigency. 
 (State of Mississippi v. Durham, 4 Mackey 
 (D. C), 237.) 
 
 The accounting system of the Treasury is one 
 of the oldest, best known, and most highly 
 esteemed parts of our governmental machinery. 
 To its scrutiny all accounts are subjected of per- 
 
 231 
 
Sec. 236. 
 
 Ft. 2. REVISED STATUTES. 
 
 Treasury Department. 
 
 eons having business or financial relations with 
 the Government, from the President to the 
 pmallest contractor. (Dennison v. U. S., 25 
 Ct. Cls., 320.) 
 
 The machinery of the Treasury Department 
 for the adjustment of accounts is only adapted 
 to the passing upon ordinary accounts upon 
 which controversies are not expected to arise 
 to any great extent, and not at all beyond the 
 means of adjusting from the records and files of 
 the several departments. One of the primary, 
 most important, and most useful objects to be 
 attained in establishing the Court of Claims was 
 to provide a tribunal where claims against the 
 Government should be determined upon legal 
 evidence, taken under the forms and subject to 
 the rules of law, which they are not and never 
 can be in the process of accounting in the Treas- 
 ury Department. (McKnight's case, 13 Ct. 
 Cls., 310; affirmed 98 U. S. 179.) 
 
 Judgments of Court of Claims. — Even 
 the judgments of the Court of Claims rnustpass 
 through the same processes of accounting, not 
 for the purpose of review, but to justify the 
 Treasiu-er in issuing his draft for the payment 
 thereof; and that is what all the long process of 
 accounting leads to. (McKnight's case, 13 Ct. 
 Cls., 309; affirmed 98 U. S. 179.) 
 
 It is the duty of the Secretary of the Treasury 
 to pay judgments of the Court of Claims; this 
 section does not confer power upon him to go 
 behind the judgment. The accounting officers 
 have no authority to reexamine the judgment, 
 which is conclusive as to everything it em- 
 braces. (U. S. V. Jones, 119 U. S., 477; see also 
 Meigs V. U. S., 20 Ct. Cls. 181; U. S. v. O'Grady, 
 22 Wall., 641; Wis. Cent. R. R. Co. v. U. S., 
 164 U. S., 190.) 
 
 Public money. — The pay and allowances of 
 midshipmen coming out of the general fund of 
 the Treasury is public money to start with, and 
 it will remain public money until it passes 
 from the absolute control of the Government. 
 Accordingly, held that funds received by a 
 naval pay officer as commissary officer of the 
 midshipmen's mess at the Naval Academy are 
 public funds, and that he should be required to 
 account for the proper disbursement thereof to 
 the accounting officers of the Treasury, the same 
 aa any other public money placed in his hands 
 for disbursement in his official capacity. (14 
 Comp. Dec, 680.) This decision is not affected 
 by the fact that the midshipmen receipt on the 
 pay roll for their proportionate share of the cost 
 of running the midshipmen's mess; the pay- 
 master does not in fact pay this money to the 
 midshipmen but pays it to himself as commis- 
 sary of the mess and accounts for it as such com- 
 missary; a receipt for money by a midshipman 
 which he did not actually receive is not a good 
 acquittance to the Government. It therefore 
 becomes necessary to show by other evidence 
 what he actually received, and tliis is accom- 
 plished by requiring the commissary officer to 
 render an accounting of the funds paid to him 
 from the pay and rations due the midshipmen 
 and expended by him for their benefit. (Comp. 
 Dec, Dec. 31, 1908, 94 S. and A. Memo., 923.) 
 [The Navy Regulations forbid disbursing offi- 
 cers to require receipts in advance of actual 
 
 payment. (Art. R-4303 (2), Navy Regs. 1913; 
 see also art. R-4384, (3).)] 
 
 Under Navy regulations prior to July 1, 1907 
 (revoked byG. O. No. 44, Apr. 16, 1907), the com- 
 mutation value of rations due enlisted men was 
 credited by the pay ofiicer to himself as such, 
 and debited against himself as commissary offi- 
 cer in charge of the general mess, composed of 
 such enlisted men, the money never actually 
 leaving the pay officer's hands until finally paid 
 out in the shape of mess expenditures and not 
 being paid over to the individual enlisted men 
 who composed the mess. It was held by the 
 Comptroller of the Treasury that such commu- 
 tation money in the hands of the pay officer was 
 public money until actually expended by him, 
 and he should be required to account for its 
 proper disbursement to the accounting officers 
 of the Treasury, the same as any other public 
 money placed in his hands for disbursement 
 in his official capacity. (12 Comp. Dec, 678; 
 see also 94 S. and A. Memo., 923.) 
 
 A sum of $24,500 was advanced from the ap- 
 propriation ' ' Pay of the Navy " in 1867 and 1868 
 for the purpose of conducting a midshipmen's 
 store at the Naval Academy; accumulated 
 profits from this investment amounted in 1908 
 to about $31,000: Held, that the total sum, rep- 
 resenting the original amount and the profits 
 thereon, belongs to the Government and is 
 public money, although the establishment of 
 this fund and its maintenance was without 
 authority of law; further held that such funds 
 should be accounted for to the Treasury De- 
 partment. (14 Comp. Dec, 680.) 
 
 The proceeds from sale of garbage from a 
 receiving ship, including that from the general 
 mess, is public money and must be covered 
 into the Treasury under the provisions of sec- 
 tion 3618 of the Revised Statutes as "Miscel- 
 laneous receipts. " (19 Comp. Dec, 450.) 
 
 The profits from sales made by ships' stores in 
 the Navy, as authorized by act of June 24, 1910 
 (36 Stat., 619), are not public money within the 
 meaning of section 3648 of the Revised Statutes. 
 (Comp. Dec, Aug. 11, 1914, file 26254-1571:2; 
 see also file 26254-1759, Apr. 20, 1915.) 
 
 For other cases see note to section 1383, Re- 
 vised Statutes, under "IX. Liability of Sure- 
 ties." 
 
 III. Limitations Upon Jurisdiction. 
 
 Jurisdiction limited by language of 
 statutes in special cases. — This section un- 
 doubtedly gives to the Treasury Department 
 the settlement of all disputed money claims but 
 it is entirely competent for Congress to alter this 
 arrangement, and it has repeatedly done so. 
 Where ( 'ongress expressly provides that before 
 payment a claim shall be "examined and set- 
 tled by the Secretary of War," the obvious 
 construction is that in the case referred to the 
 decision of the Secretary of War was to be the 
 final adjudication. (16 Op. Atty. Gen., 492; 
 affirmed 19 Op. Atty. Gen., 387.) [But noth- 
 ing short of a clear intent, unequivocally ex- 
 pressed in a statute, will warrant a court ia hold- 
 ing that the involved accounts of a public 
 officer are not to be settled at the Treasury aa 
 other public accounts are settled, or that Con- 
 
 232 
 
Treasury Department. 
 
 Pt.2. RE VISED STAT UTES . 
 
 Sec. 236. 
 
 grass has intended to create an extraordinary 
 exception to the accounting system of the 
 United States where no need of such exception 
 exists and where none is in terms declared. 
 Dennison v. U. S., 25 Ct. Cls., 321.] 
 
 The word "settle ' ' means to adjust, liquidate, 
 balance or pay. (15 Comp. Dec, 557, citing 
 Applegate v. Baxley, 93 Ind., 149.) Where 
 Congress provided that the "settlement" of 
 certain claims "shall be under the direction of 
 the Commissioner of Pensions, " held that the 
 word "settlement" was used in the sense of 
 an adjustment, liquidation and payment of the 
 claim, and that the effect of the act was to 
 transfer to the Commissioner of Pensions the 
 power to adjust and settle the claims referred 
 to, and to that extent to deprive the accounting 
 ofhcersof the general jurisdiction to settle such 
 claims, conferred by this section ; that the final 
 payments as made under the direction of the 
 Commissioner of Pensions would, of course, 
 come before the accounting officers for settle- 
 ment; but such settlement would only involve 
 the allowance of credit for the payment of an 
 adjusted claim, and not the settlement of the 
 claim itself. (15 Comp. Dec, 557.) 
 
 Where Congress, by act of May 13, 1908 (35 
 Stat., 128) provided that, upon the existence of 
 certain facts, tlie Paymaster General of the 
 Navy "shall cause to be paid " a gratuity to the 
 beneficiary of a deceased officer or enlisted man 
 of the Navy or Marine Corps, and that the Sec- 
 retary of the Navy shall establish regulations 
 requiring each officer and enlisted man to desig- 
 nate the "proper person" to whom the amount 
 should be paid, it was held by the Na\'y De- 
 partment that the decision of the Paymaster 
 General, that the facts necessary to authorize 
 payment did not exist in a given case, was 
 necessarily conclusive of the question, except 
 for the right of the claimant to appeal from the 
 action of the Paymaster General to the Secre- 
 tary of the Na\"y; and that the Auditor for the 
 Navy Department did not have jurisdiction to 
 review the decision of the Pa>Tnaster General. 
 (File 26543-66, Sept. S and 9, 1911; compare 22 
 Comp. Dec, 532; file 26543-148.) 
 
 In all cases the officer charged by statute with 
 the duty of allowing or disallowing a claim in 
 his discretion, or according to his judgment, 
 must first act, before the claimant's right is 
 fixed. Then, when he has obtained a decision 
 in his favor, the claimant's demand, of which 
 that decision is prima facie if not conclusive 
 determination, if the officer acts within the 
 scope of his authority and in accordance with 
 the provisions of law, may be the foundation 
 of an action in the Court of Claims, or may pass 
 the accounting officers and be paid by draft 
 upon warrant duly issued, as in other cases. 
 (McKnight's case, 13 Ct. Cls., 309; affirmed 98 
 U. S., 179.) 
 
 By act of March 2, 1895 (28 Stat., 768) it was 
 provided that "all paymei^ts made out of the 
 contingent fund of the House of Repre.senta- 
 tives, upon vouchers approved by said tempo- 
 rary committee on accounts, shall be deemed, 
 held and taken and are hereby declared to be 
 conclusive upon all the departments and audit- 
 ing officers of the government." Held, that the 
 Comptroller of the Treasury has no jurisdiction 
 
 to render a decision upon any question involved 
 in the payment of accounts which have been so 
 approved by the temporary committee on ac- 
 counts; that Congress intended by the pro- 
 vision above quoted to place upon said com- 
 mittee the fuial responsibility of approving all 
 payments to be made from the contingent fund 
 of the House of Representatives, and to make 
 their action conclusive. (2 Comp. Dec, 24.) 
 
 The certificate of the Speaker of the House of 
 Representatives as to the salary and mileage of 
 members, beingby law (sees. 47,48, R.S.)made 
 conclusive upon all departments of the Govern- 
 ment, the Comptroller has no jurisdiction to ren- 
 der a decision upon the amount due to a mem- 
 ber for salary or mileage. (2 Comp. Dec, 339.) 
 
 The naval appropriation act of June 24, 1910 
 (36 Stat., 619), provided that profits from sales 
 by ships' stores in the Navy should be ac- 
 counted for to the Bureau of Supplies and Ac- 
 counts, Navy Department. In view of this 
 provision, the Comptroller of the Treasury is 
 without jurisdiction to render a decision as to 
 the legality of proposed expenditures from this 
 fund. (Comp. Dec, Apr. 28, 1915, file 262-54- 
 1759:2.) 
 
 The accounting officers are without jurisdic- 
 tion to receive and settle claims of individual 
 officers and enlisted men of the organized militia 
 for pay while engaged in field or camp service 
 for instruction, and are without revisory power 
 in such cases. The officers and men must look 
 to the State, Territory, or District of Columbia 
 in whose service they are engaged; when the 
 United States turns over to the State, Territory 
 or District of Columbia its allotted portion of 
 the appropriation made by Congress for the 
 militia, the disbursing officer is accountable in 
 case he pays out said money for purposes other 
 than that for which it was appropriated by 
 Congress; but if he refuses to pay officers 
 and enlisted men of the militia money to 
 which they are entitled, they can not present 
 individual claims and have them paid through 
 the accounting officers. The accounting officers 
 are without jurisdiction to compel the disburs- 
 ing officer to make any payment or to afford 
 said officers and enlisted men any remedy. (10 
 Comp. Dec, 635.) [But this does not apply to 
 pay due the naval militia for joint service or 
 maneuvers with the Navy, as pa\Tnents in such 
 cases are not required to be made through the 
 disbursing officer of the naval militia organiza- 
 tions. (Com]). Dec, June 20, 1914, file 3973- 
 64:2, and see act Feb. 16, 1914, sec. 12, 38 Stat., 
 286, later repealed).] 
 
 No jurisdiction to determine whether 
 deductions shall be made from pay of 
 public ofl3.cers on account of alleged in- 
 debtedness. — The Comptroller of the Treasury 
 is authorized by law (act July 31, 1894, sec 8, 
 28 Stat., 207) to render decisions upon ques- 
 tions of payment to be made by disbursing 
 officers of the Government. But the law con- 
 fers no such function upon the Comptroller nor 
 upon an auditor as deciding that the pay of 
 
 Eublic officers fixed by statute should be with- 
 eld on account of alleged indebtedness of such 
 officers to the United States. When such in- 
 debtedness is denied by the officer to whom 
 salary is lawfully due, the matter is one for judi- 
 
 233 
 
Sec. 236. 
 
 Pt.2. REVISED STATUTES. 
 
 Treasury Department. 
 
 cial rather than administrative determination, 
 and a decision of tlie Comptroller rendered in 
 such case is extraothcial, not required by law, 
 and affords no warrant for the action of the dis- 
 bursinji; oliicer in withholding^ the olhcer's 
 salary, in whole or in part. Payment of salary 
 in such case may be enforced by mandamus 
 
 Eroceedins^, and the othcer is not required to 
 ring suit in the Court of Claims. (Smith v. 
 Jackson, 241 Fed. Rep., 747; affirmed 246 U. S., 
 388.) 
 
 Jurisdiction, limited to accounts.— The 
 terms "debtors" and "creditors" used in this 
 section limit and qualify the nature of the 
 claims and demands which are to be settled and 
 adjusted in the Treasury Department. The 
 assumption of the adjudication of private claims 
 against the government by the accounting 
 officers, except as incident to the settlement of 
 accounts, or except when authorized by private 
 act, would impair their functions and defeat 
 the real object for which their offices were 
 created. (Dig. Dec. Second Comp. v. 3, par. 
 735.) 
 
 Where the Paymaster General of the i\avy 
 declined to pay a claim for death gratuity under 
 the act of May 13, 1908 (35 Stat., 128), there was 
 nothing in any account which had been ren- 
 dered to the auditor upon which that officer 
 could review the action of the Paymaster Gen- 
 eral. Accordingly, held that the Auditor for the 
 Navy Department did not have jurisdiction to 
 settle and adjust the claim in this case, although 
 claimant took the matter up with the auditor's 
 office; that under the law the duties of the 
 auditor relate to the examination of accounts 
 and the certification of balances; that if pay- 
 ment had been made to the beneficiary in this 
 case of a less sum than claimed, the accounts, 
 including the payment of such amount, would 
 be before the auditor, but such was not the fact, 
 as no payment at all had been made; and that 
 claimant's appeal was to the Secretary of the 
 Navy from the Paymaster General's action and 
 not to the accounting officers of the Treasurv. 
 (File 26543-66, Sept. 8, 1911.) 
 
 Property accounts. — The settlement of 
 property accounts is provided for by act of March 
 29, 1894 (28 Stat., 47). Under said act, the juris- 
 diction of the accounting officers does not ex- 
 tend back of the decision of the officer whose 
 duty it is to audit property accounts in each 
 department [in the Navy Department, the Pay- 
 master General of the Navy, and the quarter- 
 master of the Marine Corps]; and where such 
 officer has fixed the responsibility for loss or 
 damage to property, and ascertained its value 
 and certified a charge against the responsible 
 officer to the accounting officers, it is not within 
 the jurisdiction of the accounting officers to re- 
 move the charge. (Comp. Dec, May 13, 1908, 
 87 S. and A. Memo., 703; Comp. Dec, July 26, 
 1915, 173 S. and A., Memo., 3728.) Appeal 
 in such cases arising in the Navy or Marine 
 Corps, may be taken to the Secretary of the 
 Navy who has jurisdiction to cause the charge 
 to be removed. (File 18140-10:2, May 16, 
 1911.) 
 
 The effect of said act of March 29, 1894, was 
 to divest the auditor of the jurisdiction there- 
 tofore possessed by him over property accounts 
 
 and t ansactions of the officers of the Navy 
 Department, and to relieve him of all responsi- 
 bility in relation to the disposition of property 
 intrusted to said officers. Under this act the 
 duty and responsibility of determining ques- 
 tions relating to the correct disposition or loss 
 of property have been transferred to and vested 
 in the proper officer of the Navy Department, 
 and it seems clear that the auditor will have 
 no authority over or in relation to the property 
 mentioned in a cash voucher evidencing the 
 purchase of forage, until he has been furnished 
 with a certificate of the Paymaster General in 
 accordance with said act; jurisdiction over 
 property accounts can not be given to the 
 auditor by injecting papers into cash accounts 
 tending to show what disposition has been made 
 of such property. (2 Comp. Dec, 267; Comp. 
 Dec, June 23, 1908, appeal No. 15210, file 
 26254-19; 23 Comp. Dec, 28.) 
 
 The accounting officers of the Treasury have 
 no jurisdiction to settle accounts of rations 
 issued in kind. (Comp. Dec, June 23, 1908, 
 appeal No. 15210, file 26254-19; Comp. Dec, 
 Mar. 19, 1909, 97 S. and A. Memo., 995.) It fol- 
 lows that the Comptroller of the Treasury has no 
 jurisdiction to render a decision with reference 
 to over-issues of rations to men absent with or 
 without leave. (Comp. Dec, June 27, 1908, 
 file 26254-17. [Quaere, Whether Comptroller has 
 jurisdiction to render decisions upon questions 
 relating to the issue of heat and light in kind to 
 officers of the Navy; this question discussed but 
 not decided in file 26254-394, Jan. 29 and Feb. 
 8, 1910.] 
 
 The Comptroller of the Treasury is not author- 
 ized to render a decision to the Secretary of War 
 upon the question whether certain members 
 of the organized militia are entitled to issues of 
 uniforms, etc.; as the accounting for such 
 property is regulated by the act of March 29, 
 1894(28 Stat., 47). (20 Comp. Dec, 49, 55; see 
 also Comp. Dec, Feb. 3, 1917, file 26254-2177:1). 
 
 TJnliquidated damages. — Under section 
 236, Revised Statutes, the accounting officers 
 have jurisdiction of all claims against the 
 United States, whether liquidated or unliqui- 
 dated, but by long-continued practice a rule of 
 law has been established which precludes these 
 officers from allowing claims for unliquidated 
 damages. (5 Comp. Dec, 770.) 
 
 Section 236, Revised Statutes, refers to liqui- 
 dated contract obligations. (Dig. Dec, Second 
 Comp., V. 3, par. 735. See also 4 Op. Atty. Gen., 
 327,627; 6 Op. Atty. Gen., 524; 14 Op. Atty. 
 Gen., 424; Carraicki;. U. S., 2Ct. Cls., 126, 140.) 
 
 The accounting officers of the Treasury have 
 no jurisdiction to settle claims for unliquidated 
 damages, whether the claims arise from un- 
 avoidable accident or from torts. Accordingly, 
 held that there is no jurisdiction to settle claim 
 for damage done to wharf by navy yard tug. (1 
 Comp. Dec, 283.) [This in the absence of ex- 
 press statutory authority for payment of such 
 claims.] 
 
 The head of an executive department is not 
 authorized to pay the actual expenses of repair- 
 ing a vessel injured in a collision with a Gov- 
 ernment vessel, the claim arising from the col- 
 lision being one for imliquidated damages 
 caused by the tort of the Government's officers. 
 
 234 
 
Treasury Department. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 236. 
 
 (1 Comp. Dec, 261.) It seems to be the ap- 
 proved practice to commit such claims to the 
 tender mercies of Congress for settlement. (1 
 Comp. Dec, 285.) [The Court of Claims has 
 said : ' ' We do not find it to be witliin the official 
 duties of the head of any department to make 
 estimates for appropriations to pay claims which 
 the Government is not in law bound to pay, 
 however much they may be urged to do so by 
 claimants who feel aggrieved by the tortious 
 conduct of public officers. An executive de- 
 partment is not the place to apply for redress of 
 grievances not founded on legal rights." (Pit- 
 man?;. U. S., 20 Ct. Cls., 256.) The naval ap- 
 propriation act, June 24, 1910 (36 Stat., 607), 
 authorizes the Secretary of the Navy "to con- 
 sider, ascertain, adjust and determine" the 
 amounts due on all claims for damages occa- 
 sioned by collisions for which vessels of the 
 Navy are responsible, where the amount of the 
 claim does not exceed $500; and to report the 
 amounts due to Congress at ^ch session, 
 through the Treasury Department, for payment 
 as legal claims." The naval appropriation act 
 of July 1, 1918(40Stat., 705), authorized the Sec- 
 retary of the Navy to "consider, ascertain, 
 adjust, determine, and pay" amounts due, not 
 exceeding $1,000, on claims for damages to and 
 loss of private property of inhabitants of Euro- 
 pean countries noL enemies or their allies, occa- 
 sioned by men in the naval service during the 
 existing war.] 
 
 The accounting officers of the Treasury have 
 jurisdiction to settle claims based on a contract 
 with the Government, either expressed or im- 
 plied, where it is possible to ascertain either 
 from the terms of the contract, or fi-om extrane- 
 ous proof, the justice of the claim and the cor- 
 rectness of the amount; but they can not take 
 cognizance of claims for unliquidated damages 
 arising from torts or breach of contract. Tliis 
 has been repeatedly held by the Court of 
 Claims and in opinions of Attorneys General. 
 (2 Comp. Dec, 174; citing McKee's case, 12 Ct. 
 Cls., 556 [reversed, 97 U. S., 233]; Dennis v. U. 
 S., 20 Ct. Cls., 119, 14 Op. Atty. Gen., 24; and 
 see. 20 Comp. Dec, 661.) 
 
 The jurisdiction of the accounting officers is 
 limited to claims arising on contracts, express 
 or implied, and does not extend to a claim for 
 imliquidated damages, even though such claim 
 does not arise from the tort of an officer of the 
 Government. Accordingly, held that account- 
 ing officers have no jurisdiction of claim for re- 
 imbursement for private property destroyed by 
 fire. (2 Comp. Dec, 487.) [Reimbursement 
 for loss or damage of private property belonging 
 to persons in the Navy or Marine Corps has been 
 provided for by various acts of Congress. (See 
 sec. 290, R. S., and note thereto.)] 
 
 The accounting officers and heads of depart- 
 ments have no cognizance of claims for unli- 
 quidated damages founded on neglect or breach 
 of duty of public officers, even where they grow 
 out of nonperformance of written contracts, 
 other than in payment for work actually done 
 or material furnished and received . (Pitman v. 
 U. S., 20 Ct. Cls., 253; 1 Comp. Dec, 261.) 
 
 It is plain that the Government itself is not 
 responsible for the misfeasances, or wrongs, or 
 
 neglects, or omissions of duty of subordinate 
 officers or agents employed in the public serv- 
 ice; for it does not undertake to guarantee to 
 any person the fidelity of any of the officers or 
 agents whom it employs; since that would in- 
 volve it, in all its operations, in endless em- 
 barrassments, and difficulties, and losses, which 
 would be subversive of the public interests. 
 (Pitman v. U. S., 20 Ct. Cls., 255, quoting Judge 
 Story in his work on Agency.) 
 
 Equitable claims. — The accounting officers 
 have no jiu-isdiction in a case in which claimant 
 has an equitable claim only, wliich, however 
 just, the executive officers of the Government 
 are not authorized to settle. (9 Comp. Dec. 
 663.) [See section 287, Revised Statutes, which 
 requires accounting officers to settle certain 
 classes of accounts in the Navy "on principles 
 of equity and justice."] 
 
 IV. JuKiSDicTiON, Accounting Officers and 
 Federal Courts. 
 
 The Court of Claims at first had a rule 
 that "in every case where the claim is such 
 as is ordinarily settled in any Executive 
 Department, the petition shall show that appli- 
 cation for its allowance has been made to that 
 department, and without success, and its de- 
 cision thereon;" and a petition was dismissed 
 because it did not set forth those facts. On 
 appeal the Supreme Court decided the rule 
 to be unauthorized and void, and remitted the 
 case with directions to proceed to a hearing 
 on the petition, and the rule was thereupon 
 abrogated and the Court of Claims has ever 
 since proceeded to hear cases without reference 
 to the action of the accounting officers thereon. 
 (McKnight v. U. S., 13 Ct. Cls., 312; affirmed 
 98 U. S., 179; Clyde -y.U. S., 13 Wall., 35.) 
 
 Decisions binding on accounting oflS.- 
 cers. — By express legislation (act Mar. 4, 1907, 
 34 Stat., 1356), as well as the ruling of the 
 Supreme Court, the decisions of the Court of 
 Claims, when not appealed from, furnish the 
 rules by which the accounting officers are to 
 be guided in their settlement and adjustment 
 of Uke cases. (Leighv. U. S., 43 Ct. Cls., 387; 
 18 Comp. Dec, 493; Comp. Dec, Sept. 26, 1910. 
 file 26254-539. But see 21 Comp. Dec, 431; 
 reversed 21 Comp. Dec. 561; also, Comp. Dec, 
 Apr. 13, 1916, file 26543-140:2, and 20 Comp. 
 Dec, 821.^ 
 
 "Clearly it is the duty of the accounting 
 officers, as well as of all other officers of the 
 Government in the discharge of their official 
 duties, to follow the rulings of the United States 
 courts where applicable. * * * Notwith- 
 standing a claim may have been allowed or 
 rejected, if subsequent thereto the Supreme 
 Court or this court has adjudicated such claim 
 or a like claim such adjudication creates a new 
 rule of decision binding on the accounting offi- 
 cers in the subsequent consideration of like 
 claims, whether then pending or subsequently 
 filed." (Blazek v. U. S., 44 Ct. Cls., 188, 191, 
 192.) 
 
 Any doubt which an auditor may have had 
 as to the legality of making deductions from 
 the salary of a public officer in a particular 
 
 54641°— 22- 
 
 ■IG 
 
 235 
 
Sec. 236. 
 
 Pt.2. REVISED STATUTES. 
 
 Treasury Department. 
 
 case "should have been subordinated, first, to 
 the ruling of the Attorney General and, second, 
 beyond all possible question to the jiidgments 
 of the courts below." (Smith v. Jackson, 246 
 U. S., 388, aflirming 241 Fed. Rep., 747.) 
 
 The judgments of the Court of Claims, not ap- 
 pealed from, are conclusive upon the accounting 
 officers, who have no authority to reexamine 
 such a judgment. (U. S. tJ. Jones, 119 U. S.,477; 
 McKnight v. U. S., 13 Ct. Cls., 309, affirmed 
 98 U. S., 179; Meigs v. U. S., 20 Ct. Cls. 181; U. 
 S. V. O'Grady, 22 Wall., 641; Wis. Cent. R. R. 
 Co. V. U. S., 164 U. S., 190.) 
 
 The action of the accounting oflEicers 
 is not conclusive in a suit between the 
 United States and the individual. (U. S. v. 
 Harmon, 147 U. S., 274, 275); nor is it even 
 prima facie evidence of the indebtedness of 
 the Government. (McKnight's case, 13 Ct. 
 Cls., 292.) 
 
 The Court of Claims has jurisdiction, 
 upon reference of the head of any de- 
 partment, to report its findings of fact and 
 conclusions of law with reference to any claim 
 or matter pending in such department which 
 involves controverted questions of fact or law; 
 and the report of the Court of Claims in such 
 a case shall be for the "guidance and action" 
 of the department making the reference. 
 Judiciary Act, IMarch 3, 1911, section 148 (36 
 Stat., 1137). Where the Comptroller of the 
 Treasury held a provision of the Army Regu- 
 lations to be null and void, the question was 
 referred by the Secretary of War to the Court 
 of Claim.s, which reversed the Comptroller of 
 the Treasury and sustained the validity of the 
 regulation. (In re Smith, 23 Ct. Cls., 452; see 
 also Smith v. U. S., 24 Ct. Cls., 209.) 
 
 ^Mienever any claim is made against any 
 executive department over which it has ju- 
 risdiction, such department may, withoutaction 
 in the Treasury Department, refer such claim 
 to the Court of Claims, provided it be one w^hich 
 the court might, under existing laws, take ju- 
 risdiction of on the voluntary action of the 
 claimant. (Baltimore & Ohio R. Co. v. U. S., 
 34 Ct. Cls., 503.) 
 
 The Court of Claims has jurisdiction to try 
 and adjudicate claims or matters which the 
 Secretary of the Treasury may, upon the cer- 
 tificate of any auditor or of the Comptroller of 
 the Treasury, direct to be transmitted to said 
 court, and of which the court might have juris- 
 diction on the voluntary action of the claimant. 
 (Act Mar. 3, 1911, sec.'l48, 36 Stat, 1137.) 
 
 Suits for lost checks. — When a Govern- 
 ment check is lost or stolen, the Revised Stat- 
 utes (sees. 306-310, 3646) do not require that 
 payment must be postponed for three years or 
 preclude a suit. They simply authorize dis- 
 bursing officers to duplicate small checks in 
 certain cases. The power given to the ac- 
 counting officers to duplicate lost checks is not 
 exclusive and does not affect the jurisdiction 
 of the courts. (Becker v. U. S., 26 Ct. Cls., 
 172, 177.) 
 
 For other cases, see "VII. Effect of accotmt- 
 ing officers' action." 
 
 V. Jurisdiction, Accounting Officers and 
 Heads of Executive Departments. 
 
 (A) Secretary of the Navy. 
 
 (B) Secretary of War. 
 
 (C) Miscellaneous. 
 
 Attorney General. — See note to section 356, Re- 
 vised Statutes. 
 
 Secretary of the Treasury. — The Secretary of 
 the Treasury, being the head of the de- 
 partment, has a right generally to control 
 or revise to some extent the action of others 
 in subordinate official positions. (Mc- 
 Knights' case, 13 Ct. Cls., 30(), 307, affirmed 
 98 U. S. , 179.) "The Secretary of the Treas- 
 ury may, when in his judgment the inter- 
 ests of the Government require it, suspend 
 payment, and direct the reexamination of 
 any account. " (Act July 31, 1894, sec. 8, 
 28 Stat., 208.) 
 * 
 (A) Secretary of the Navy. 
 
 The accounting officers of the Treasury 
 have not the burden of responsibility cast 
 upon them of revising the judgments, correct- 
 ing the supposed mistakes, or annulling the 
 orders of heads of departments. The Secre- 
 tary of the Navy represents the President, and 
 exercises his power on subjects confided to his 
 department. He is responsible to the people 
 and the law for any abuse of the powers in- 
 trusted to him. His acts and decisions on 
 subjects submitted to his jurisdiction and con- 
 trol by the Constitution and laws do not require 
 the approval of any officer of another depart- 
 ment to make them valid and conclusive. The 
 Executive Department of the Government to 
 which is intrusted the control of the subject- 
 matter must necessarilj' determine all ques- 
 tions appertaining thereto. Where the Comp- 
 troller of the Treasury was of the opinion that 
 the Secretary of the Navy had mistaken the 
 law or abused his discretion, and undertook to 
 correct the Secretary's supposed mistake or 
 abuse of discretion, held that the Comptroller 
 "was not bound to assume this responsibility. " 
 The propriety of the action taken was a subject 
 peculiarly within the jurisdiction and discre- 
 tion of the head of the Navy Department, and 
 not subject to revision or correction by the 
 officers of any other department. (U. S. v. 
 Jones, 18 How., 92.) 
 
 In the Jones case, above-cited, the facts were 
 that an officer of the Navy was detached on 
 special duty in France, and a sum of money 
 was transmitted to him by the Secretary of the 
 Navy, to be disbursed for medical attendance 
 required by said officer for a severe and danger- 
 ous wound accidentally received by him. The 
 money was disbursed accordingly; however, 
 the accounting officers of the Treasury charged 
 the amount so disbursed by this officer against 
 him on his pay account, and refused to recog- 
 nize the authority of the Secretary of the Navy 
 in the premises. The Supreme Court, for the 
 reasons set forth above, sustained the Secre- 
 tary's action and overruled that of the account- 
 ing officers. 
 
 236 
 
Treasury Department. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 236. 
 
 The Jones case was decided by the Supreme 
 Court in 1855. It has since been quoted and 
 applied in numerous cases, including the fol- 
 lowing: U. S. V. Johnston, 124 U. S., 236, 252; 
 Barnettv.U. S., 16 Ct. Cls., 515; Waters v. U. S., 
 21 Ct. Cls., 38; Dyer v. U. S., 37 Ct. Cls., 340; 
 Hayden v. U. S., 38 Ct. Cls., 51; Billings v. U. 
 S., 23 Ct. Cls., 179; file 26260-347: C, Oct. 20, 
 1909, and 26543-66, Sept. 8, 1911; Op. Atty. 
 Gen., May 19, 1915, 171_S.and A. Memo., 3611. 
 [In the case last cited it was held that a Navy 
 regulation concerning responsibility of pay 
 officers is binding on the accounting officers, 
 and that a decision of the Comptroller to the 
 contrary is not conclusive upon the Navy De- 
 partment. See also file 26254-1451:11, Apr. 
 1915.] 
 
 The designation of navy mail clerks is by 
 act of May 27, 1908 (35 Stat., 417), vested in the 
 uncontrolled discretion of the Postmaster Gen- 
 eral and Secretary of the Navy, with like 
 uncontrolled discretion to fix theii' compensa- 
 tion within the prescribed maximum . Accord- 
 ingly, a decision of the Comptroller of the Treas- 
 ury that a certain Navy mail clerk designated 
 pursuant to the statute had not been validly 
 designated because such designation was not 
 in accordance with certain general regulations 
 issued by the Secretary of the Navy, was extra- 
 official and not binding upon the Navy De- 
 partment. Held further, that the designation 
 in question was entii'ely valid. (Op. Atty. 
 Gen. to Secy. Navy, July 19, 1918, file 26254- 
 2476:5.) 
 
 The question whether or not the record 
 of an enlisted man in the Marine Corps is 
 "honest and faithful" within the meaning of 
 section 1281, Revised Statutes, governing pay- 
 ment of retained pay, is one for the naval au- 
 thorities to decide, and the accounting oflicers 
 and the courts are not required to reconsider the 
 alleged misconduct and add to the penalty pre- 
 scribed by the military authorities. The Presi- 
 dent, acting through the Navy Department, 
 not having declared a forfeiture of retained pay, 
 in addition to discharge from the service, the 
 record of the man in question cannot be reex- 
 amined in a collateral proceeding for the pur- 
 pose of imposing such forfeiture. (Kingsley v. 
 U. S., 24 Ct. Cls., 219.) [In adecision rendered 
 April 21, 1914 (20 Comp. Dec, 751), the Comp- 
 troller of the Treasury held that, while he has 
 no jurisdiction to decide as to the character 
 of an enlisted man's discharge, "from a naval 
 standpoint, " nevertheless, when a question of 
 paj^ing travel allowance to such man is pre- 
 sented, he may decide that a man discharged 
 by the naval authorities on account of expira- 
 tion of enlistment, was, '^for the purposes of 
 such payment" not so discharged; that ''even 
 though in terms a discharge by reason of expi- 
 ration of enlistment, and properly so from a 
 naval standpoint, it may for the purposes of 
 this office be regarded otherwise." But see 21 
 Comp. Dec, 539, noted below, under "(B);S'ec- 
 retary of War"; and see 28 Op. Atty. Gen., 83, 
 holding that when the Navy Department in 
 discharging a man determines the character of 
 his discharge, "the executive branch of the 
 Govermnent thereby becomes functus officio." 
 
 Secretary's discretion not reviewable. — 
 It is not for the court, and it is not for the 
 accounting officers, to say how much or how 
 little shall be allowed to a naval attache from 
 the appropriation for ' ' maintenance of students 
 and attaches and information from abroad." 
 There being no limit in the statute upon the 
 amount of maintenance which may be allowed, 
 that amount is necessarily within the exclusive 
 jurisdiction of the Secretary of the Navy. The 
 appropriation is in the nature of a contingent 
 fund, to be disbursed by the Secretary of the 
 Navy in his discretion, which is not subject to 
 judicial review. (Dyer v. U. S., 37 Ct. Cls., 
 340.) 
 
 An order of the Secretary of the Navy, ap- 
 pointiiig a retired officer of the Navy as meteor- 
 ologist at a navy yard, to perform work ordina- 
 rily performed by officers of the Navy, is the order 
 of the President, and the officer is entitled to the 
 salary prescribed by the Secretary of the Navy, 
 from the appropriation for ' 'National Defense, " 
 notwithstanding disallowance thereof by the 
 accounting officers. The appropriation in ques- 
 tion expressly provides that it is to be expended 
 "at the discretion of the President. ' ' (Hayden 
 V. U. S., 38Ct. Cls., 51.) 
 
 Secretary's approval of travel claims. — 
 When the Secretary of the Navy has approved 
 an amount claimed as actually exj^ended for 
 steward 's fees by a naval officer traveling abroad 
 under orders, it must be treated as conclusive 
 under the provisions of the act August 5, 1882 
 (22 Stat., 286), it being the practice to allow offi- 
 cers of the Government reimbursement for such 
 expenditures, as a necessary expense of travel 
 abroad. As to the amount of the claim, inas- 
 much as it has been approved by the Secretary 
 of the Navy, it is clear that the accounting 
 officers have no right to question the reasonable- 
 ness of such amount, in \'iew of the act above 
 cited; by the terms of the statute, the reason- 
 ableness of expenses is left to the discretion of 
 the Secreta»'y of the Navy, and when deter- 
 mined by lum, such determination must be 
 taken as conclusive. [The law cited provided 
 that officers traveling abroad under orders shall 
 receive, in lieu of mileage, "only their actual 
 and reasonable expenses, certified under their 
 own signatures and approved by the Secretary 
 of the Navy."] (3 Comp. Dec, 121.) In a later 
 decision, the Comptroller of the Treasury, con- 
 struing this same act, held that it was intended 
 merely as a safeguard against the allowance of 
 unjust and exorbitant claims, and to place a 
 Umit upon the jurisdiction of the accounting 
 officers, and to preclude the allowance of any- 
 thing not approved by the Secretary of the 
 Navy; but that the accounting officers' jurisdic- 
 tion remains unimpaired as to items and 
 amounts approved by the Secretary; in other 
 words, the accounting officers cannot allow any 
 items not approved by the Secretary of the 
 Navy; but they are not bound by his approval 
 and may disallow items which he has approved. 
 (14 Comp. Dec, 143.) 
 
 The Secretary of the Navy 's approval or dis- 
 approval of a claim, while entitled to great 
 weight, is not conclusive upon the accounting 
 officers in cases arising under the act of July 1, 
 
 237 
 
Sec. 236. 
 
 Pt.2. REVISED STATUTES. 
 
 Treasury Department. 
 
 1902 (32 Stat., 602, 663), which provided that 
 the Secretary of tl\e Na\-y may direct that actual 
 and necessary ex]ienscs only be allowed to offi- 
 cers performing travel repeatedly between two 
 or more places. And the same tiling applies to 
 ci\-ilian emplovees performing travel under the 
 act of Afarch 3,' 1875 (18 Stat., 452). (14 Comp. 
 Dec, 143. But see 3 Comp. Dec, 121, noted 
 above.) 
 
 The accounting officers are not bound by the 
 approval by the Navy Department of traveling 
 expense accounts of officers or employees of 
 that department; nor are they bound by the 
 disapproval by the Navy Department of such 
 accounts, except in the case of officers of the 
 Navy traveling abroad under orders. (14 Comp. 
 Dec, 143.) 
 
 The determination of the classes of expendi- 
 ture to be allowed as traveling expenses is a 
 proper subject for regulation by the head of the 
 department, and where such regulations have 
 been made they must ordinarily be regarded as 
 controlling. (14 Comp. Dec, 143; see also 9 
 Comp. Dec, 156.) 
 
 The approval by the Secretary of the 
 Navy -was held not conclusive upon the 
 accounting officers in cases arising under the 
 act of March 30, 1898 (published in note to sec. 
 290, R. S.), which provided that "the account- 
 ing officers of the Treasury shall in all cases 
 require a schedule and affida\-it from each per- 
 son making a claim " for losses incurred by the 
 destruction of the U. S. S. Maine, "such 
 schedule to be approved by the Secretaiy of 
 the Na\-y." The Comptroller of the Treasury 
 held that the requirement that such schedules 
 be approved by the Secretary of the Navy 
 seems not only to be entirely consistent with 
 the exercise by the auditor of his usual func- 
 tions in the settlement of accounts, but to be a 
 wise and salutary safeguaid against the allow- 
 ance of improper claims; that the reasonable 
 construction of the act was that the schedule 
 was required to be approved by the Secretary 
 as a safeguard against the allowance of unjust 
 and exorbitant claims arising from the fact that 
 the accounting officers, without the advice and 
 approval of the Navy Department, were not in 
 position to judge so intelligently as to what 
 articles were suitable and appropriate for an 
 officer or enlisted man of the rank or rating and 
 duty of the person by whom the claim was 
 made; that the effect was to put a limitation 
 upon the jurisdiction of the accounting officers 
 and to preclude the allowance of anytliing not 
 having the approval of the Secretary, but leav- 
 ing their jurisdiction unuupaired as to items 
 and amounts approved by him. While, there- 
 fore, the approved schedule and affidavit of an 
 officer making claim under said act, were held 
 to constitute a prima facie claim as contem- 
 plated by tlie act, it was further held that they 
 were by no means conclusive upon tlie ac- 
 counting officers, except to limit their jurisdic- 
 tion to a consideration of the items and amounts 
 so presented; that while the approved schedule 
 and affidavit might be sufficient alone to jus- 
 tify the allowance of a claim, the auditor was not 
 concluded by them if in his judgment addi- 
 tional proof M^as necessary and proper to a fair 
 and just adjudication of the claim for which 
 
 reimbursement was provided. (4 Comp. Dec, 
 
 587.) 
 
 Approval of medical claims. — The deter- 
 mination of the Secretary of the Navy that ex- 
 penses of an officer of the Navy for medicines 
 and medical attendance are incurred under cir- 
 cumstances entitling liim to reimbursement 
 (sec 1586, R. S.), is conclusive. Although the 
 Surgeon-General of the Navy decUned to rec- 
 ommend this allowance, the Secretary of the 
 Navy has approved same, and this action of the 
 head of the department must be regarded as 
 binding upon all. (2 Comp. Dec, 241, citing 
 U. S. r. Ehason, 16 Pet., 291, 302.) 
 
 The approval of the administrative 
 officer is prima facie evidence of the correct- 
 ness of the items of the account; and in the 
 absence of clear and unequivocal proof of mis- 
 take on the part of such officer, it should be 
 conclusive. (U . S. v. Jones, 134 U. S., 483, 488.) 
 
 The date of appointment of an officer as 
 specified in his commission, where such date is 
 subsequent to the date of the vacancy he was 
 appointed to fill, is conclusive upon the ac- 
 counting officers, who have no authority to 
 allow pay from a prior date. (9 Comp. Dec, 612, 
 citing U. S. V. Vinton, 28 Fed. Cas. No. 16624, 
 and 4 Op. Atty. Gen., 603. See act of March 4, 
 1913, 37 Stat., 892.) 
 
 The action of the President, by and with 
 the advice and consent of the Senate, in 
 advancing an officer of the Navy on the 
 retired list under the provisions of the act of 
 June 29, 1906 (34 Stat., 554), is not conclusive 
 upon the accounting officers where it subse- 
 quently apjjears that the officer did not [in 
 the opinion of the accounting officers] possess 
 the qualifications necessary to entitle him to 
 such advancement under the law. (14 Comp. 
 Dec, 169.) [In this case, the question was 
 whether the officer was retired for any of the 
 causes mentioned in the act cited; the Comp- 
 troller fiist held, April 30, 1907, that he was not; 
 subsequently, on September 20, 1907 (14 Comp. 
 Dec, 162), the Comptroller reversed his proA-ioua 
 decision, and held that the officer was letired for 
 disability originating in line of duty, wliich was 
 one of the causes mentioned in the act under 
 consideration; thereafter it was held by the 
 Attorney General in a similar case, that he 
 could not agree Avith the decision of the Comp- 
 troller last cited, but coacmred in the opinion 
 of the Judge Advocate General that the officer 
 was not retired for disabiUty originating in line 
 of duty (27 Op. Atty. Gen., 221). Thereupon, 
 the Comptroller of the Treasury reopened the 
 case and followed the opinion of the Attorney 
 General, reversing liis own last pre^'ious deci- 
 sion. 15 Comp. Dec, 584; 97 S. and A. Memo., 
 1004. This final decision of the Comptroller 
 was upheld bv the Supreme Court in Morse v. 
 U. S., 229U. S., 208.] 
 
 Navy Department may decline to fur- 
 nish information to accounting officers. — 
 The Navy Department maintains that the pro- 
 motion of officers of the Navy and the de- 
 termination of all questions relating thereto, 
 including the qualifications of the officer, the 
 existence of the vacancy, and the application 
 of section 1505, Revised Statutes, are matters 
 exclusively within the jurisdiction of the Navy 
 
 238 
 
Treasury Department. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 236. 
 
 Department, whose action thereupon ia not sub- 
 ject to review by any other executive depart- 
 ment of the Government or office thereof. The 
 Navy Department accordingly would not fur- 
 nish the Auditor for the Navy Department with 
 certain information which he requested for the 
 evident purpose of reviewing and possibly over- 
 ruling tlie action taken by the department in 
 the case presented. (File 26260-347: C, Oct. 20, 
 1909.) 
 
 In another case, the Navy Department de- 
 clined to furnish the auditor with papers con- 
 cerning a claim for payment of death gratuity 
 under the act of May 13, 1908 (35 Stat., 128); 
 holding that the law cited reposes the respon- 
 sibility for payment of said gratuity in the 
 Paymaster General, under the Secretary of the 
 Navy; that accordingly the decision of the 
 Paymaster General as to the facts involved is 
 necessarily conclusive; and inasmuch as the 
 facts in the particular case showed tliat the 
 beneficiary named by the deceased was not 
 entitled to payment, the matter was regarded 
 as closed by the Navy Department's decision 
 to that effect, which was not subject to review 
 by the Auditor for the Navy Department. It 
 was also asserted in this case that the account- 
 ing officers have no jurisdiction to consider a 
 claim for payment of death gratuity until the 
 Paymaster General has acted upon and allowed 
 same; and when a claim is allowed by the Pay- 
 master General, this establishes claimant's 
 right and he is entitled to demand payment 
 without being required to establish his claim 
 anew to the satisfaction of the accounting 
 officers. (File 26543-66, Sept. 8, 1911; compare 
 22 Comp. Dec, 532; file 26543-148; see also 20 
 Comp. Dec, 93.) 
 
 The policy of the Navy Department has 
 been to disapprove the submission to the 
 Comptroller of the Treasury of specific ques- 
 tions involving administrative matters under 
 its own jurisdiction, and the department has 
 not been inclined to invite controversy by spe- 
 cifically requesting his decision upon questions 
 which the law places under the cognizance of 
 the Secretary of the Navy. (File 11112-476, 
 Feb. 20, 1915.) 
 
 The Comptroller's decision upon a ques- 
 tion of law involved in the settlement of 
 accounts under his cognizance, is not binding 
 upon the Navy Department in taking action 
 upon matters under its cognizance, even though 
 the identical question of law may be involved. 
 There are many authorities to this effect. 
 (File 26254-1451:11, Apr. 12, 1915, citing 
 cases.) 
 
 Comptroller's decision as to validity of a 
 Navy regulation held not binding on the 
 Navy Department, but said regulation is bind- 
 ing on the accounting officers (30 Op. Atty. 
 Gen., 376, 171 S. and k. Memo., 3611, noted 
 under sees. 161 and 285, R. S.) 
 
 A paragraph in the " Regulations Governing 
 the Organization and Administration of the 
 Naval Reserve Force, 1917," article 406, chap- 
 ter 4, authorizing enrollment of aliens who are 
 citizens of countries friendly to the United 
 States and who have declared their intention 
 to become citizens of the United States, held 
 inconsistent with law and men enrolled in ac- 
 
 cordance therewith not entitled to pay and 
 allowances. (Comp. Dec, Oct. 29, 1918, file 
 28550-470:3.) This decision modified and the 
 regulation in question held to be valid as being 
 specifically authorized by act of May 22, 1917 
 (40 Stat., 84), overlooked when said regulation 
 was held to be invalid. (Comp. Dec, Nov. 1, 
 1918, file 28550-470:5.) 
 
 Citizenship of enlisted men. — Where the 
 Bureau of Navigation decided, after considera- 
 tion of all the evidence in the case, that a 
 Chinaman who was an enlisted man in the 
 Navy, was a citizen of the United States, and 
 changed his birthplace and citizenship on the 
 department's records accordingly; and the 
 Auditor for the Navy Department, upon a ques- 
 tion of pay, decided, after consideration of the 
 same eviclence, that it was not sufficient to 
 establish the fact of his birth in the United 
 States; it was held by the Navy Department 
 that the decision of the accounting officers is 
 not in any sense binding upon the Navy De- 
 partment in its determination of the citizenship 
 or identity of an enlisted man, and that no new 
 evidence having been obtained, the decision 
 of the Bureau of Na\agation would not be 
 reopened. (File 26252-56, Feb. 1, 1910.) 
 [Subsequently the Comptroller of the Treasury 
 reversed the auditor's action upon considera- 
 tion of the same evidence. (Comp. Dec, 
 Mar. 12, 1910, file 26254^24.)] 
 
 Status of personnel question under Navy 
 Department. — The Navy Department regards 
 the status of an officer of the Navy, under his 
 orders, as a question of fact for its determination, 
 and not that of the accounting officers. (See 
 12 Comp. Dec, 563, 566; 9 Comp. Dec, 826; 29 
 Ct.Cls.,403; 16 S. and A. Memo., 145.) Accord- 
 ingly, held that, upon the facts stated, an officer 
 of the Navy was not detached from his vessel 
 while in a naval hospital under treatment. 
 This being so, he clearly comes within tlie 
 decisions of the Comptroller of the Treasury and 
 the Court of Claims, which entitle him to sea 
 pay when not detached from his vessel, and a 
 decision of the Comjatroller of the Treasury in 
 the specific case was not necessary. (File 
 26254-2, Apr. 29, 1908. See also 21 Comp. 
 Dec, 539, noted below under "(B) Secretary of 
 War." 
 
 "If men are properly enlisted in the naval 
 service, it is not material to the accounting 
 officers in the settlement of their pay and allow- 
 ances whether they are at all times lawfully . 
 engaged or not. That is a matter to be regu- 
 lated by the Navy Department, and even 
 though enlisted men be employed in service 
 forbidden by law it is beyond the power of the 
 accounting officers to withhold the pay and 
 allowances which the law prescribes. The 
 legality of such service can become material to 
 the accounting oflicers only where the enlist- 
 ments are made solely for such illegal purpose, 
 and then only in passing upon the payments 
 made under said enlistments." (6 Comp. 
 Dec, 758.) 
 
 Comptroller can not reheve officers of 
 duty to obey orders. — Officers of the Navy 
 must at all times be governed by orders of the 
 Navy Department, and the Comptroller of the 
 Treasury has no jurisdiction to authorize a disre- 
 
 239 
 
Sec. 236. 
 
 Pi. 2. RE VISED STAT UTES . 
 
 Treasury Department. 
 
 gard of such orders. The Na\-y Department 
 having, by special order, limited the allowance 
 to officers of travel, an officer performing travel 
 igoverned by such order is guilty of impropriety 
 in requesting the Comptroller ot the Treasury to 
 authorize him to exceed the allowance so fixed. 
 Uis letter, which was addressed to the Comp- 
 troller through official channels, was accord- 
 ingly placed on file in the Navy Department 
 wiiljout reference to the Comptroller of the 
 Treaaury. (File 26254-58, June 27, 1908.) 
 
 The Navy Department fully understands 
 that officers have a right at all times to make 
 claim upon the auditor for any sums to which 
 they may consider themselves legally entitled, 
 and upon the auditor's disallowance to appeal 
 therefrom to the Comptroller of tlie Treasury, 
 the right of a pay officer in this respect being 
 neither greater nor less than that of any other 
 officer of the Navy. However, in cases where 
 the officer has been guilty of direct disobedience 
 of or negligent failure to comply with a lawful 
 order of the Secretarj/ of the Navy, it is obvious 
 that the accounting officers can no more relieve 
 him from responsibility for his conduct than 
 they could in advance authorize a disobedience 
 of such order. When an officer has been in- 
 formed to this effect by the Navy Department, 
 his action in thereafter taking the matter up 
 with the accounting officers was not merely an 
 impropriety on his part but was conduct indica- 
 tive of a disposition to insubordination. (File 
 26251-3352:1, July 14, 1910.) [In this case the 
 officer failed to comply with a general order 
 requiring him to check the value of clothing 
 outfit against an enlisted man on discharge. It 
 was held by the Navy Department that under 
 the law full discretion was conferred upon the 
 Secretary of the Navy as to whether or not 
 clothing outfit should be checked on discharge, 
 and that the Comptroller of the Treasury had 
 no jurisdiction to relieve a pay officer from 
 responsibility for failing to check the value of 
 clothing outfit when required so to do by the 
 Secretary of the Navy.] 
 
 The accounting officers can not require 
 a disbursing officer of the Navy to make 
 a payment. Such power is possessed only by 
 the officer's superior. (File 26543-66, Sept. 8, 
 1911; see also sec. 285, R. S.; Smith v. U. S., 
 24 Ct. Cls., 215; 10 Comp. Dec, 635.) 
 
 Questions pertaining to the correct pay 
 and allo"wances of officers of the Navy are 
 placed by law under the jurisdiction of the 
 accounting officers of the Treasury, and do not 
 in general come under the cognizance of the 
 Navy Department, which can not with pro- 
 
 {)riety express an opinion upon a question simi- 
 ar to one pending before the Comptroller. 
 (File 26254^599, Jan. 4, 1911.) 
 
 If there is a balance due to officers of the 
 Navy, the matter is one for adjustment between 
 them and the accounting officers. The Navy 
 Department can not be regarded as having such 
 an interest in the adjustment of individual 
 accounts as to warrant its appealing to the 
 Comptroller of the Treasury in such cases, and 
 feels that to do so in certain cases would set a 
 bad precedent, following which numerous indi- 
 vidual officers might thereafter endeavor to 
 have the Navy Department prosecute their 
 
 claims. [Letter, August 19, 1912, file 26254- 
 1003, to the Auditor for tlie Navy Department, 
 in reply to the latter's suggestion that the Secre- 
 tary of the Navy appeal to the Comptroller of 
 the Treasury for revision of certain accounts in 
 which errors in calculation were made, and the 
 Comptroller had declined to make revision on 
 his own motion at the suggestion of the au- 
 ditor.] 
 
 The Navy Department can not be regarded as 
 having such an interest in the adjustment of 
 individual accounts as to warrant an appeal to 
 the Comptroller of the Treasury; the matter is 
 one for adjustment between such individuals 
 and the accounting officers. (File 26254-431:1, 
 May 4, 1910.) 
 
 (B) Secretary of War. 
 
 The decisions of the War Department 
 should be regarded by the Treasury De- 
 partment as estabHshing matters of fact 
 concerning the military relations which exist 
 between the Government and the officers; but 
 upon the facts as thus determined by ttie War 
 Department, all questions of law involving the 
 financial relations existing between the Gov- 
 ernment and the officers, and the financial 
 obligations of the Government to the officers 
 must be determined and decided by the ac- 
 counting officers of the Treasury. (Parkhurst 
 ■y. U. S.,29Ct. Cls.,403.) 
 
 The records of the War Department 
 (apart from opinions and conclusions of the 
 officer having the custody thereof) are the best 
 evidence of an officer's status in the service; 
 but if the record does not disclose the facts essen- 
 tial to the accounting officers administering the 
 law they may accept from other sources the 
 necessary competent evidence. (Northrup v. 
 U. S., 45 Ct. Cls., 50; see also Brewington v. 
 U. S., 39 Ct. Cls., 399; and act Apr. 19, 1910, 
 36 Stat. 324, making "the decision of the War 
 Department" conclusive in certain cases.) 
 
 It is the province of the War Depart- 
 ment to decide military questions which 
 relate to the cause or manner of severance from 
 the service of officers and enlisted men of the 
 Army; and where that department has deter- 
 mined as a fact that an officer's services ended 
 by the acceptance of his resignation the record 
 of that fact will be accepted as correct by the 
 Comptroller of the Treasury in the adjustment 
 of the claim for pay and allowances in case of 
 the officer. (21 Comp. Dec, 539.) 
 
 "It is peculiarly the province of the War 
 Department to make deductions of fact from 
 the records of miUtary service of which that 
 department is the natural and legal custodian, 
 and to decide mihtary questions which relate 
 not only to the entrance into service but also 
 the cause or manner of severance from service 
 of officers and enUsted men." (21 Comp. Dec, 
 539, 547.) 
 
 Reason or wisdom of orders to officers 
 cannot be reviewed by accounting offi- 
 cers. — Where the accounting officers held that 
 the War Department had no authority to send 
 a surgeon to the International Medical Congress 
 at London at the expense of the Government, 
 this decision was reversed by the Court of 
 
 240 
 
Treasury Department. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 236. 
 
 Claims, which held that the President himself, 
 or tlirough the War Department, may direct 
 the movements of all officers of the Army, and 
 to whatever place and on whatever business 
 connected with the military service he may 
 order them to proceed, they are bound to obey, 
 at least when such order is not forbidden by 
 law. And in such case the officer is entitled 
 to mileage. It is not for the accounting officers 
 to inquire into the reasons nor to take excep- 
 tions to the expediency and wisdom of the 
 orders of the President or of a department 
 when issued within the scope of thair authority. 
 Section 191, Revised Statutes [act JulySl, 1894, 
 section 8 (28 Stat., 208)], relates only to matters 
 of accounting in the Treasury Department and 
 of ascertaining the balance in each particular 
 account which shall be drawn for the Treasurer. 
 Before the enactment of the provisions of that 
 section, it had been the practice of the Presi- 
 dent and the heads of departments to interfere 
 and give directions to the accounting officers 
 in the matter of settling accounts, and to 
 change or attempt to change the balances 
 stated by them. The accounting officers re- 
 sisted the practice, and the controversy, in 
 different forms, was several times referred to 
 the Attorney General, who advised that the 
 President was without such authority, but that 
 the heads of departments, especially the Secre- 
 tary of the Treasury, did have the power from 
 the nature and general duties of their offices. 
 (Citing 1 Op. Atty. Gen., 624, 678, 705; 2 Op. 
 Atty. Gen., 303, 652; 5 Op. Atty. Gen., 87, 630.) 
 The act was passed apparently to settle con- 
 clusively that long standing controversy 
 between executive officers, and to prevent the 
 interferences of others in the settlement of 
 accounts by the accounting officers. (Citing 
 McKee's Case, 12 Ct. Cls., 554.) It makes con- 
 clusive upon the executive branch of the 
 Government only the "balances" stated by 
 the latter officers, and their "decision thereon, " 
 for the purpose of determining for what amounts, 
 if any, warrants may be drawn on the Treasury. 
 It does not make such decisions conclusive 
 upon the head of a department in the exercise 
 of his discretion as to ordors to be issued to his 
 subordinates in such connections as the one 
 now under consideration. (Billings v. U. S., 
 23 Ct. Cls., 179; file 26254-1451:11, April 12, 
 1915.) 
 
 The accounting oflB.cers are not author- 
 ized to inquire into the -wisdom, expediency, 
 or necessity of assigning an officer to a com- 
 mand above that pertaining to his grade; but it 
 is within their authority to inquire whether 
 the order of assignment to higher command 
 was carried into effect according to law, and to 
 what extent the officer performed the service 
 to which he was assigned. (Glenn v. U. S., 
 37 Ct. Cls., 254.) 
 
 Legal acts of Secretary are conclusive. — 
 Whatever may be the legal prerequisites of 
 brevet commanders in the Army, their exist- 
 ence is to be presumed from the order or 
 decision of the Secretary of War assigning or 
 determining those commands. That being a 
 legal presumption is conclusive, and the fact 
 must be regarded by the Auditor and Comp- 
 troller as established by and according to the 
 
 Secretary's decision and orders. Acts done 
 by the Secretary of War within the peculiar 
 and legitimate .sphere of his olficial duty are 
 to be taken and Tinderstood as rightly done, 
 and to preclude all collateral inqiiiry by ac- 
 counting officers. (5 Op. Atty. Gen., 386, 
 quoted approvingly in Billings v. U. S., 23 
 Ct. Cls., 179.) 
 
 Army Regulations binding on account- 
 ing officers. — Army Regulations issued pur- 
 suant to the explicit provisions of a statute, 
 and in execution thereof, when sanctioned by 
 the President, have the force of law, and are 
 conclusive upon tlie accounting officers of the 
 Treasury; accordingly, when an officer of the 
 Marine Corps presents with his account an 
 authentic document or certificate of his having 
 commanded a post or arsenal, for which an 
 order has been issued from the War Depart- 
 ment in conformity with the provisions of the 
 Army Regulations, allowing double rations, his 
 right to them is established, nor can they be 
 withheld without doing him a "wrong for which 
 the law gives liim a remedy. (U. S. v. Free- 
 man, 3 How., 566. ) For other decisions concern- 
 ing executive regulations, see note to section 
 161, Revised Statutes. 
 
 Accounting officers refused to allow 
 compensation for expert employed by 
 authority of Secretary of War at a trial by 
 coiurt-martial. It was held by the Court of 
 Claims, that the employment of experts before 
 a court-martial is within the legal and proper 
 discretion of the Secretary of War; and his 
 order to employ and pay them is official au- 
 thority to an officer who, in the ordinary dis- 
 charge of his duty, makes such payments, 
 and protects him from the summary remedy 
 of having his pay stopped. (In re Maj . William 
 Smith, 24 Ct. Cls., 209.) 
 
 The accounting officers have no juris- 
 diction to review a decision of the Secre- 
 tary of War that a soldier did not serve 
 honestly and faithfully. Except in cases of 
 deserters, the act (June 16, 1890, 26 Stat., 157), 
 makes tlie Secretary of War the judge as to 
 what misconduct shall constitute a failure to 
 render honest and faithful service within the 
 meaning of the laws relatir^ to retained pay 
 therein specified. The Secretary of War hav- 
 ing decided that a soldier did not serve hon- 
 estly and faithfully, he is not entitled to the 
 retained pay therein specified. (3 Comp. Dec, 
 557.) 
 
 The accounting officers have no authority to 
 review the action of the War Department re- 
 fusing to discharge a soldier for disability and 
 reqiuring him to piu-chase his discharge as a 
 condition precedent to his release from the 
 service, prior to the date on which he was 
 entitled to his discharge. (2 Comp. Dec, 546.) 
 
 In the absence of fraud or plain error, 
 a finding by the military authorities as to the 
 cause of disease and the period of absence from 
 duty on account thereof, is conclusive upon 
 the accounting officers with reference to stop- 
 page of pay in the accounts of an officer or 
 enlisted man so absent. (20 Comp. Dec, 69.) 
 
 The powers of the Secretary of War, 
 and the authority which had been attempted 
 to be exercised by subordinate officers of other 
 
 241 
 
Sec. 236. 
 
 Pt. 2. REVISED STATUTES. 
 
 Treasury Department. 
 
 departments of reviewing anil overruling the 
 decisions of the Seeretaryof War upon military 
 questions and matters arising in the adminis- 
 tration of the War Department, were con- 
 sidered at some length in War De])artment 
 Circular of November 2, 1901 ; and the decision 
 of the Secretary of War (^^r. Root) was stated 
 therein as follows: "The department will not 
 hereafter furnish copies of records or statements 
 from them to enable ofhcors or em])loyeea of 
 other executive departments to review de- 
 cisions made by the War Department upon 
 ])urely military questions, or to make indepen- 
 dent decisions with regard to such questions." 
 [This decision of the War Department was 
 quoted by the Navy Department, October 20, 
 1909 (fde 26260-347:0), and September 8, 1911 
 (file 26543-66), in cases in which the Auditor for 
 the Navy Department requested information 
 for the evident purpose of reviewing and possi- 
 bly overruling decisions of the Navy Depart- 
 ment upon questions of a purely military na- 
 ture.] 
 
 The War Department does not find it 
 necessary or desirable to decide for the infor- 
 mation of the Comptroller whether a former 
 officer of the Army is regarded as having left his 
 command without jDroper authority, when the 
 records disclose that the War Department had 
 previously determined that the officer's service 
 terminated by acceptance of resignation, and 
 that this decision was not followed by the 
 auditor. (21 Comp. Dec, 540.) 
 
 The promotion of a civilian employee by 
 the Secretary of War is not ordinarily open 
 to question, but where it is patent upon its 
 face that the increase of pay was to be tem- 
 porary and merely for the purpose of accom- 
 plishing indirectly something that could not be 
 accomplished directly, namely, to antedate an 
 increase of paj', the accounting officers are war- 
 ranted in refusing to recognize such promotion 
 ashaving any legal effect. (23 Comp. Dec, 6.) 
 
 {C) Miscellaneous. 
 
 Approval of expense accounts. — Where 
 the execution of a statute is committed to the 
 head of a Department, subject to the President's 
 ajiproval of rules and regulations prescribed 
 pursuant thereto, with no other restriction than 
 that certain expenses be proper and necessary 
 and approved by the Secretary, held that the 
 ap])roval of the Secretary of an account of ex- 
 penses pursuant to said act is conclusive evi- 
 dence that they were proi>er and necessary, 
 unless it appears that their allowance was pro- 
 cured by fraud, or that they were incurred in 
 violation of an act of Congress or of public 
 policy; and that, if the law be held to require 
 that the accounts be audited and ])assed by the 
 accounting officers, then in auditing those ac- 
 counts they would have been bound to regard 
 the action of the Secretary in allowing certain 
 expenses, as final. (U. S. v. Johnston, 124 
 U. S., 236, 252.) 
 
 It is impossible to suppose that Congress 
 intended that every account, after being 
 approved by the Secretary, should be sub- 
 ject to review by some subordinate officer of 
 the Treasury, or even by the courts, and to be 
 
 disallowed merely because in the judgment of 
 that olUcer or of the courts, such expenses 
 should not have been incurred. (U. S. v. John- 
 st«m, ]24U. S., 249,250.) 
 
 Under a law providing that accounts of 
 chief supervisors of elections were to be 
 api>roved by the circuit or district court, such 
 approval determines the fact that the services 
 were necessary and proper, and of a character 
 sufficient to entitle the officer to the fee pre- 
 scri])ed by law for such services; but such ap- 
 proval of the court does not establish the accu- 
 racy of the accoinit, nor take it, as an account, 
 out of the supervision of the accounting officers 
 whose duty still remains to examine it, revise 
 it, verify its calculations, scrutinize its ^•ouch- 
 ers, and ascertain its true amount; nor will the 
 approval of the court render the Government 
 liable, either before the accounting officers or in 
 the Court of C laims, for a service or expenditure 
 not authorized by law. (Dennison v. U. S., 
 25 Ct. Cls., 322. )_ But the approval of the court 
 in such a case is prima facie e\'idence of the 
 correctness of the items of the account; and in 
 the absence of clear and unequivocal proof of 
 mistake on the part of the court, it should be 
 conclusive. (U. S.r. Jones, 134 U.S., 483,488.) 
 
 Discretion of Secretary not review- 
 able. — Where Congress intrusts to a public 
 officer the expenditure of a sum of money for a 
 designated purpose, without restriction or limi- 
 tation as to details, the exercise of judgment 
 and discretion by such officer cannot be re- 
 viewed by the accounting officers or the courts, 
 for the mere purpose of determining whether or 
 not the authority was exercised in the most 
 judicious manner. If the officer acts in good 
 faith, keeps within the general scoi>e and au- 
 thority of the law, and does not undertake to 
 apply the money tx) other and wholly different 
 purposes from those designated in the act of 
 appropriation, his action cannot be questioned 
 in the final settlement of the accounts, espe- 
 cially as against an innocent employee who, 
 though bound by the law, has no discretion to 
 exercise over the ^iropriety of the orders of his 
 employers. (Plummer y. U. S., 24Ct.Cls., 519.) 
 
 It is the theory, and a wise one, upon 
 which the final adjustment and settle- 
 ment of accounts in the Treasury Depart- 
 ment is founded, that the officers who pass 
 upon them shall be wholly distinct from those 
 who expend the money or incur the liabilities. 
 For the manner in which these latter officers 
 perform the trust imposed upon them, they 
 alone are resptmsible; the Com])trolIer is only 
 charged with the duty of seeing that they keep 
 within the latv. (Waters -y. U. S. , 21 Ct. Cls., 38, 
 citing Longwill's Case, 17 Ct. Cls., 288; Ridg- 
 way'sCase, 18 Ct. Cls., 715; etc.) 
 
 The Comptroller of the Treasury has no 
 power to review, revise, or alter items ex- 
 pressly allowed by statute, nor items of ex- 
 penditure or allowances made upon the judg- 
 ment and discretion of other officers charged 
 with the duty of expendmg the money or of 
 making the allowances. His duty extends no 
 further than to see that the officers charged with 
 that duty have authorized the expenditures or 
 have made the allowances. (U. S. v. Waters, 
 133 U. S., 215; followed 17 Comp. Dec, 263.) 
 
 242 
 
Treasury Department. 
 
 Pt.2. RE VISED STAT UTES . 
 
 Sec. 236. 
 
 [This statement of the power of the Comptroller 
 applies as well to the Auditors, who also have 
 no power to disallow an item when the question 
 involved in the expenditure is one committed 
 to the judgment and discretion of the head of 
 the Department. 2 ('omp. Dec, .330.] 
 
 The duty of the accounting officers in 
 respect to pensions is to audit the accounts 
 relatbig to them, and to certify the balances. 
 But this does not require that they shall take 
 from the Commissioner of Pensions the juris- 
 diction with which the law clothes him to con- 
 strue and administer the pension laws, or inter- 
 fere with his instructions to pension agents. 
 On the contrary, thev are bound to conform to 
 his decisions. (17 Op. Atty. Gen., 339, 340; 
 20 Op. Atty. Gen., 178.) 
 
 The propriety of keeping every branch 
 of the executive government within its 
 legal sphere is clear. The confusion which 
 would unavoidably arise, if one branch was per- 
 mitted to usurp the functions of another, would 
 be disastrous to the proper working of the whole. 
 When, therefore, a '• difference of opinion" 
 arises between several executive departments 
 as to the construction of the law, the primary 
 question is as to which is vested with the deter- 
 mination and responsibility of the question. 
 That one only can ha^e jurisdiction over the 
 subject-matter is plam. (20 Op. Atty. Gen., 
 178, 180.) 
 
 Whenever a statute gives a discretion- 
 ary power to any person, to bo exercised by 
 him upon his own o])inion of certain facts, it is 
 a sound rule of construction that the statute 
 constitutes him the sole and exclusive judge of 
 the existence of those facts. In such a case, 
 the courts must ordinarily assume that discre- 
 tion conferred ujjon the officer was properlv 
 exercised. (Mullan v. U. S., 140 U. S., 245; 
 Martin v. Mott, 12 Wheat., 19, 31.) 
 
 It is fully recognized by the accounting 
 officers that where a particular power or discre- 
 tion has been conferred upon the head of a 
 department or other officer, either by express 
 law or by necessary implication, his acts within 
 the scope of that power, or in the exercise of 
 that discretion, if not prohibited by law, can 
 not be set aside or called in question, either by 
 the accounting officers or by the courts. (5 
 Comp. Dec, 410, 416; 14 Comp. Dec, 143.) 
 
 W^here the law (sec 4577, R. S.) makes it the 
 duty of consular officers to provide subsistence 
 and transportation for destitute seamen, the 
 question whether an American seaman is or is 
 not destitute within the meaning of the law is 
 one to be determined by the consular officer to 
 whom he applies for relief, and tlie latter's de- 
 cision will, in the absence of fraud, be con- 
 clusive; and it is not within the power of the 
 accounting officers to overrule his determina- 
 tion of that fact. (3 Comp. Dec, 40; 26 Op. 
 Atty. Gen., 631.) 
 
 Where an act of Congress vests in the 
 Secretary of the Interior authority to deter- 
 mine the method of disbursing money due to 
 Indians, either by paying them in cash or "by 
 expending the same for their benefit, in such 
 manner as he may deem for their best inter- 
 ests," and the Secretary has made such deter- 
 mination, all other officers are bound by this 
 exercise of power by him. (2 Comp. Dec, 642.) 
 
 When the Secretary of the Interior in the 
 exercise of a reasonable discretion determines 
 as to the validity of title to rights and property 
 to be acquired by him under the provisions of 
 law, his decision is conclusive upon the ac- 
 counting officers. (12 Comp. Dec, 691.) 
 
 When the head of a Department ap- 
 proves a voucher for the traveling expenses 
 of an employee at sea, containing items for wine 
 or carbonated waters used for the specific pur- 
 pose of controlling seasickness, and not merely 
 as a beverage, with knowledge that the liquids 
 are so used, the amount thereof must be allowed. 
 It is for the head of the Department to deter- 
 mine ^\dtllin his discretion whether such items 
 are a necessary expense of travel under the 
 circumstances. (1 Comp. Dec, 404.) 
 
 When an item is properly payable from 
 an appropriation for contingent expenses, 
 and is not prohibited by any law or regulation, 
 the discretion of the officer charged with the 
 duty of expending said fund is not subject to 
 review by the accounting officers upon any 
 question as to the necessity or adAdsability of 
 his expenditures. The responsibility for in- 
 curring an expense, as to the necessity or ex- 
 pediency of wliich opinions may differ, must 
 be assumed by the officer under whose control 
 the appropriation is put. [The question in 
 this case related to purchasing portraits of his 
 predecessors for the office of a public officer. 
 The Comptroller said: " I know of no provision 
 of lawprohibiting the purchase of poi'traits or pic- 
 tures for your office. The responsibility for the 
 payment of this bill, as an incidental expense of 
 youroffice, restswithyou."] (2Comp. Dec, 80.) 
 
 In the absence of any law or regulation 
 fixing the amount which may be allowed for 
 the expenses of a secret agent, the matter is 
 entirely within the discretion of the Post- 
 master General in the management of the postal 
 service; and his decision as to the amount of 
 expenses, when that discretion is properly 
 exercised, is conclusive upon the accounting 
 officers of the Treasury. (2 Comp. Dec, 336, 
 citing U. S. -y. Waters, 133 U. S., 208.) 
 
 Where a statute provides that "heads 
 of Departments shall cause this rule to 
 be enforced," it is made their duty, and not 
 that of the accounting officers, to determine 
 questions of fact arising thereunder. (20 Comp. 
 Dec, 10.) 
 
 It has frequently been urged upon the 
 accounting officers that it is their duty 
 to recognize the action of the heads of 
 Departments in approving claims as con- 
 clusive. (14 Comp. Dec, 143.) The general 
 provision of law governing the manner of set- 
 tling claims against the Government is found in 
 section 236, Revised Statutes. Such being the 
 general law upon the subject of the settlement 
 of claims against the United States, special 
 acts, according to established rules of inter- 
 pretation, must, if possible, be coiiistrued in 
 harmony therewith. It is not to be supposed 
 that Congress intended to repeal or modify the 
 general law by implication. Such an inten- 
 tion should clearly appear by apt words to that 
 end, or by necessary intendment. A\Tien it is 
 designed to vest in some officer the power of 
 determining certain questions of fact, it is 
 usual to eniploy clear and unmistakable words 
 
 243 
 
Sec. 236. 
 
 Pt.2. REVISED STATUTES. 
 
 Treasury Department. 
 
 to convey that intention. Where the approval 
 of an expenditure is intended to be binding 
 upon the accounting officers it is usual to so 
 state. \\Tiero no such intention is expressed, 
 the mere ap])roval by an administrative officer 
 carries ■with it no such conchisive force. When 
 a statute designates an officer to determine 
 some question of fact, and expressly or by neces- 
 sary implication shows that such determina- 
 tion is to be conclusive, the validity of such 
 action, in the absence of fraud, can not generally 
 be questioned by officers of another depart- 
 ment of the Government; and this is also true 
 where the matter is one involving the exercise 
 of discretion vested in an administrative officer. 
 But in the determination of facts arising in the 
 ordinary course of business in the several execu- 
 tive departments, the decisions of the adminis- 
 trative official, though of great weight, are not 
 regarded by the accounting officers as conclu- 
 sive. The opportunity for administrative offi- 
 cials to pass intelligently upon questions of 
 fact arising in their department^ is much 
 greater than is that of the accounting officers, 
 and it has accordingly been the purpose of 
 legislation upon the subject of accounts to 
 thi-ow upon the administrative officers the 
 burden of making such decisions. But tliis is 
 far from admitting that the accounting officers 
 are relieved of the responsibility of inquiring 
 for themselves into the facts of any particular 
 case. Claims bearing the approval of adminis- 
 trative officers and heads of departments are 
 frequently disallowed. The approval of the 
 head of the department does not control the 
 action of the accounting officers, except to 
 cause a disallowance of an expenditure not so 
 approved, if such approval is required by law. 
 (4 Comp. Dec, 587.) 
 
 Items of expense bearing the approval 
 of heads of departments are disaUowed 
 every day by the accounting officers. 
 The latter are required to examine accounts to 
 see if the expenditures are allowed by law. If 
 of such a character that the approval of the 
 head of department is essential, items not ap- 
 proved are promptly disallowed. Only in 
 rare instances, and when so provided by law, 
 is the approval of the head of a department 
 final and conclusive upon the accoimting offi- 
 cers. Congress has provided that the approval 
 of vouchers for its contingent expenses shall be 
 final and conclusive, and that the certificate of 
 the Speaker of the House of Representatives as 
 to salary and mileage shall be final. When it 
 is intended that the accounting officers shall 
 not examine and audit accoimts upon their 
 merits — that is, determine questions of law and 
 of fact arising therein — plain language can be 
 and is employed by Congress. It is not to be 
 understood that the Comptroller will refuse to 
 give to the approval of the head of a depart- 
 ment or of an independent commission that 
 effect wliich is contemplated by law. Ordi- 
 narily that approval is conclusive as to the 
 propriety of expending an appropriation for the 
 purpose for which it is applicable. Nor does 
 the Comptroller in an ordinary case question 
 the necessity for travel made by an employee 
 or the reasonableness of expenses incurred for 
 subsistence, etc. But when the proper execu- 
 
 tive officer fixes a limit to such expenses, no 
 employee's voucher for a greater amoimt will 
 be passed, unless the regulation is waived by 
 the one who made it. (4 Comp. Dec. , 270, 271.) 
 
 Nothing short of a clear intent, un- 
 equivocally expressed in a statute, will 
 warrant a court in holding that Congress has 
 intended to create an extraordinary exception 
 to the accounting system of the United States, 
 where no need of such exception exists and 
 where none is in terms declared. (Dennison v. 
 U. S.,25Ct. Cls., 321.) 
 
 Evidence required. — The accounting offi- 
 cers are charged with the duty of settling the 
 public accounts. The cliaracter and quantity 
 of evidence needed to establish a fact must 
 be determined by them; otherwise, the conclu- 
 sion reached, which is "final and conclusive 
 upon the executive branch of the government," 
 will be in effect that of the officer who decides 
 what evidence shall go to them. (20 Comp. 
 Dec, 93.) 
 
 It is understood so generally as hardly to 
 need a statement now, that the accounting offi- 
 cers do audit the public accounts upon the evi- 
 dence furnished largely by the certificates of 
 fact made by responsible government officers. 
 But with very few exceptions, made by law, 
 the certificate or approval of an officer is not 
 intended to be conclusive upon the accounting 
 officers. The latter must render a decision 
 upon the legality of a claim for payment or for 
 credit in an account, upon the facts. Upon 
 them is cast the responsibility for securing the 
 facts. Upon other officers is the duty of fur- 
 nishing upon request such evidence, in addi- 
 tion to certificates, as may be called for by the 
 accounting officers. This right to call for evi- 
 dence is inseparable from the duty to audit and 
 to decide questions of law and of fact. It must 
 be exercised reasonably, as must any public 
 duty, but the accounting officer, and not an 
 administrative officer incurring liabilities or 
 expending the public funds, must determine 
 the extent to which it is necessary to go in any 
 particular case in collecting the evidence to 
 establish what he believes to be an essential 
 fact as a basis for decision. (20 Comp. Dec, 93.) 
 
 In the expenditure of all public moneys 
 it is the invariable rule to require that ac- 
 counts shall be furnished itemized as far as 
 practicable, in order that the accounting offi- 
 cers may properly audit them. The law may 
 permit the exercise of discretion in the use of 
 public funds, without dispensing with the 
 usual requirement of an itemized account show- 
 ing fully for what purposes the money has been 
 expended. (4 Comp. Dec, 159; 4 Comp. 
 Dec, 271.) 
 
 VI. Set-off. 
 
 Duty of accounting officers. — \Vhere a 
 person is both debtor and creditor of the United 
 States in any form, the officers of the Treasury 
 Department in settling the accounts not only 
 have the power but are required, in the proper 
 discharge of theh* duties, to set off the one in- 
 debtedness against the other, and to allow and 
 certify for payment only the balance found due 
 on one side or the other. Provisions on this 
 subject are contained in section 1766, Revised 
 
 244 
 
Treasury Department. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 236. 
 
 Statutes, and act of March 3, 1875 (18 Stat. ,481) ; 
 but the right to set off exists in such cases inde- 
 pendently of those special statutory enactments, 
 and is founded upon what is now section 236, 
 Revised Statutes. (Taggart v. U. S., 17 Ct. 
 Cls.,327.) 
 
 It may be regarded as settled law, in accord- 
 ance with the uniform practice, that the ac- 
 counting officers have jurisdiction, in proper 
 cases, in the course of settling accounts in the 
 Treasury Department, to set off one debt 
 against another, when a claimant is both debtor 
 and creditor. (McRnight v. U. S., 13 Ct. Cls., 
 306; affirmed 98 U. S., 179. See also The 
 Schooner Henry, 35 Ct. Cls., 393; Bonnafon's 
 case, 14 Ct. Cls., 489; Howe's case, 24 Ct. Cls., 
 170; Labadie v. U. S., 33 Ct. Cls., 476.) 
 
 It is but the exercise of the common right, 
 which belongs to any creditor, to apply the 
 imappropriated moneys of his debtor, in his 
 hands, in extinguishment of the debts due to 
 him. (Gratiot v. U. S., 15 Pet., 336.) 
 
 I understand it to be the duty of the officers 
 of the Government to enforce this right, as is 
 constantly done by the courts. (Comp. Dec, 
 Apr. 23, 1908, 86 S. and A. Memo., 638.) [In this 
 case the Comptroller held that the indebted- 
 ness of naval court-martial prisoners should be 
 set off against pay due such prisoners. In a 
 previous decision the Comptroller based this 
 ruUng upon section 1766, Revised Statutes, 
 which provides in part that "no money shall 
 be paid to any person for his compensation who 
 is in an-ears to the United States." Subse- 
 quently that section was construed by the At- 
 torney General as applicable only to persons who 
 were in a relation of trust to the Government, as 
 contractors or disbursers of the pubUc funds, 
 and as such would have in their hands sums or 
 balances of the public funds for which they 
 were bound to render accounts and to turn the 
 balance of moneys into the Treasury; and that 
 it did not apply to ordinary debtors of the Gov- 
 ernment. (26 Op. Atty. Gen., 77.) This opin- 
 ion of the Attorney General was brought to the 
 Comptroller's attention by the Secretary of the 
 Navy, in connection with the indebtedness of 
 court-martial prisoners. The Comptroller, how- 
 ever, in the decision above cited, adhered to 
 his former conclusion, holdmg that the result 
 was the same irrespective of whether or not the 
 matter was covered by section 1766, Revised 
 Statutes.] 
 
 Extent of right. — The duty of the account- 
 ing officers in matters of set-off has been fre- 
 quently recognized by the courts. But it does 
 not extend beyond the interest of the United 
 States in matters involved in the settlements. 
 In the absence of statutory authority, neither 
 the accounting officers of the Treasury nor any 
 other public officer can make the United States 
 agents or trustees for the collection of private 
 debts between citizens, nor make contracts in 
 relation to the taking of security for the pay- 
 ment of debts due to the Government so as to 
 bind the United States for any breach of the 
 contract by neglect or otherwise. (Taggart v. 
 U. S., 17 Ct. Cls., 327.) [In this case it was 
 held that where the debtor assigned to the Gov- 
 ernment as collateral security for his debt, a 
 judgment against a third person to whom the 
 
 Government was indebted in a larger amount, 
 the accounting officers were not bound to collect 
 the whole amount of the judgment and pay the 
 balance to the claimant; but performed their 
 full duty in setting off against the Government's 
 indebtedness to the third person so much of said 
 judgment as was necessary to discharge the in- 
 debtednessof theclaimantto the United States.] 
 
 Where a judgment creditor assents to the ap- 
 plication of the amount of his judgment, or a 
 part thereof, to the payment of a debt due from 
 him to the United States, the action of the 
 Auditor in settling his accounts accordingly 
 will not be disturbed upon a subsequent objec- 
 tion by him to such action, (7 Comp. Dec, 
 585; act Mar. 3, 1875, 18 Stat., 481.) 
 
 Allowances made by mistake of law. — 
 The Government has authority to withhold 
 money due an officer of the Navy to whom an 
 erroneous payment has been made, notwith- 
 standing that the payment was found to be 
 en'oueous only upon a construction of law made 
 after the settlement of an account in which pay- 
 ment was allowed. (8 Comp. Dec, 24, citing 
 Wis. Cent. R. R. Co. v. U. S., 164 U. S., 190, 211; 
 but see Hedrick's Case, 16 Ct, Cls., 103. For 
 other cases, see below "VIII. Reopening op 
 
 ACCOUXTS.") 
 
 Gratuities. — Extra pay in the nature of a 
 gratuity, due at the time of his death to an offi- 
 cer of the temporary force of the Navy for the 
 war with Spain, may be properly set off against 
 a debt arising from an overpayment of pay to 
 such officer, but not against a debt arising other- 
 wise. [In this case the officer at the time of his 
 death was entitled to the extra pay, but had not 
 received it; however, any pay which he had 
 received in excess of the amount to which he 
 was entitled, was regarded as to that exteiit a 
 prepayment of the extra pay.] (6 Comp. Dec, 
 353; explained, 8 Comp. Dec, 310; see also Sem- 
 plei;. tJ. S.,24Ct. Cls., 422.) 
 
 However, where extra pay in the natiure of a 
 gratuity was granted by statute to officers of the 
 Na\'y who served during the war with Mexico, 
 and the statute specified the beneficiaries to 
 whom the gratuity should be paid in event of 
 the death of the officer before recei\dng same, 
 held that indebtedness of an officer to the 
 United States, even because of overpayments of 
 pay, could not be set off against the gratuity due 
 liis next of kin, the officer in this case ha\'ing 
 died before the statute was passed and therefore 
 not having acquired any right to the extra pay 
 at the time of his death. Under such circum- 
 stances the extra pay under the statute was in 
 the nature of a direct grant to the officer's heirs. 
 (8 Comp. Dec, 308.) 
 
 "WTiere an appropriation was made to be paid 
 to the administrator of a decedent's estate, said 
 decedent having been an original sufferer from 
 the French spoliations, the Secretary of the 
 Treasiny was not authorized to withhold the 
 amount of decedent's indebtedness to the 
 United States, the appropriation having been 
 made for the benefit of the next of kin of the 
 original sufferer. (5 Comp. Dec, 866.) 
 
 Indebtedness under a previous enlist- 
 raent. — ^^^lere an enlisted man is discharged 
 from the Navy in debt to the United States, and 
 is subsequently reenlisted, the amount of his 
 
 246 
 
Sec. 236. 
 
 Pt.2. REVISED STATUTES. 
 
 Treasury Department. 
 
 indebtedness on discharge from the previous 
 enlistment may legally be set-off against pay 
 coming due liim under his current enlistment. 
 (Comp. Dec, Apr. 7, 1914, 158 S. and A. Memo., 
 3037.) 
 
 However, where a man is discharged from the 
 Navy upon expiration of enlistment without 
 having been fully checked the amount of a 
 sximmary court-martial sentence, because of 
 BufTuient pay not having accrued to satisfy the 
 forfeiture, the amount of such sentence which 
 remained unchecked at date of discharge, can 
 not be set off against pay coming due the man 
 under a subsequent enlistment in the Na\'y. 
 His discharge from the previous enlistment 
 operated as a remission of the unexecuted por- 
 .tion of the forfeiture, and the man was not, 
 therefore, indebted to the United States on that 
 account. (Comp. Dec, Apr. 6, 1914, 158 S. and 
 A. Memo., 3035; file 7657-241, June 26, 1914.) 
 
 Where a man is paid all money coming due 
 him under his current enlistment, without set- 
 ting off hia indebtedness to tlie United States 
 under a former enlistment, the pay officer is not 
 liable to checkage if it appear that he had no 
 knowledge of the man's indebtedness accruing 
 under a former enlistment; and there were not 
 sufficient facts to put him on his inquiry. Pre- 
 sumption of indebtedness in such case does not 
 arise from knowledge of former service, and it is 
 not the duty of a pay officer in the Navy to in- 
 vestigate upon reenlistment the account of a 
 man under a previous enlistment. (Comp. 
 Dec, Apr. 7, 1914, 158 S. and A. Memo., 3037.) 
 
 Set-oflf of imadjudicated claim by the 
 Government.— The salary of a public officer 
 fixed by statute and indisputably due him, 
 can not be withheld because of alleged indebt- 
 edness by him to the Government, denied by 
 the officer, and never adjudicated against him 
 by any court. The officer in such case can re- 
 quire payment of his lawful salary by man- 
 damus proceedings, the question of his indebt- 
 edness being a matter for judicial determination 
 upon suit against him by the Government. 
 (Smith 1). Jackson, 241 Fed. Rep., 747; affirmed 
 246 U. S., 388.) 
 
 Set-off against Government. — An officer 
 of the Government who has in his hands money 
 of the United States is entitled to retain it by 
 way of set-off where the United States are in- 
 debted to such officer for fees of office; and on a 
 motion made on the part of the United States to 
 commit the officer for failure to pay over the 
 money in his hands, he will be permitted to 
 show that the United States are indebted to 
 him, and if this be shown it is a sufficient cause 
 why he should not be attached. (U. S. v. 
 Mann. 26 Fed. Cas. No. 15716, per Marshall, Cir- 
 cuit Justice. See also U. S. v. Ripley, 7 Pet., 
 24; compare U. S. v. Giles, 9 Cranch, 236.) 
 
 VIl. Effect of Accounting Officers' Ac- 
 tion. 
 
 Conclusive upon Executive Depart- 
 ments. — For a long series of years, extending 
 from the first organization of the Treasury 
 Department to 1868, there was a controversy 
 as to how far, if at all, the balances and action 
 of a Comptroller were subject to revision and 
 
 change by the heads of departments or the 
 President. Upon the advice of several Attor- 
 neys General, the question was practically set- 
 tled against the right of the President, aiid in 
 favor of the Secretary of the Treasury. But the 
 Comptrollers yielded with reluctance, and in 
 1868 an act was passed which was afterwards in- 
 corporated into the Revised Statutes as section 
 191, which provided that the balances certified 
 by the Comptrollers "shall be conclusive upon 
 the Executive branch of the Government and 
 be subject to re\dsion only by Congress or the 
 proper courts." (McKnigh't v. United States, 
 13 Ct. Cls., 307, affirmed 98 U. S., 179; McKee 
 V. U. S., 12 Ct. Cls., 553, reversed 97 U. S., 233.) 
 The object of this law (sec. 191, R. S.) appears 
 to have been to settle a long-standing contro- 
 versy and render the Comptrollers independent 
 in their action of the heads of departments in 
 certifying balances of accounts, and not to give 
 to the decisions of those officers the character 
 of awards absolutely binding upon the United 
 States. It will be observed that the inde- 
 pendence of the Comptrollers provided for by 
 that act only extends to the certified balances 
 which cannot be changed or modified by 
 other executive officers; but in all other mat- 
 ters of accounting, the superiority of the power 
 of the Secretary of the Treasuiy is not modified 
 but is left as it was before . [Section 191 , Revised 
 Statutes, was repealed and superseded by the 
 act of July 31, 1894, section 8 (28 Stat., "208), 
 which also provided that ' ' the Secretary of the 
 Treasury may, when in his judgment the inter- 
 ests of the Government require it, suspend 
 payment and direct the reexamination of any 
 account."] (McKnight^). U. S., 13 Ct. Cls., 307, 
 affirmed 98 U. S., 179.) 
 
 Before the enactment of the provisions of that 
 section (191, R. S.), it had been the practice of 
 the President and heads of departments to 
 interfere and give directions to the accounting 
 officers in the matter of settling accounts, and 
 to change or attempt to change the balances 
 stated by them. The accounting officers re- 
 sisted the practice, and the controversy in dif- 
 ferent forms was several times referred to the 
 Attorney General, who advised that the Presi- 
 dent was without such authority, but that the 
 heads of departments, especially the Secretary 
 of the Treasury did have the power, from the 
 nature and general duties of their offices. (1 
 Op. Atty. Gen., 624, 678, 705; 2 Op. Attv. Gen., 
 303, 652; 5 Op. Atty. Gen., 87, 630). T?he act 
 was passed apparently to settle conclusively 
 the long-standing controversy between execu- 
 tive officers, and to prevent the interferences 
 of others in the settlement of accounts by the 
 accounting officers. (McKee's case, 12 Ct. Cls., 
 554, reversed 97- U. S., 233.) It makes conclu- 
 sive upon the executive branch of the Govern- 
 ment only the "balances" stated by the latter 
 officers and their "decision thereon," for the 
 purpose of determining for what amounts, if 
 any, warrants may be drawn on the Treasurer. 
 It does not make such decisions conclusive 
 upon the head of a department in the exercise 
 of his discretion as to orders to be issued to 
 his subordinates. (Billings v. U. S., 23 Ct. 
 Cls., 179; see file 26254-1451:11; and see above, 
 V (A)). 
 
 246 
 
Treasury Department. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 236. 
 
 The law devolves upon the accounting offi- 
 cers of the Treasury the duties of examining, 
 settling and adjusting all accounts, claims and 
 demands in which the United States are con- 
 cerned, either as debtors or as creditors, and to 
 certify balances arising thereon, and their 
 exercise of such duties, including the weighing 
 of evidence, the construction of statutes, and 
 the application of general principles of law in 
 connection therewith, is exclusive unless other- 
 wise provided by special statute. (14 Comp. 
 Dec, 143.) [But see note to section 356, Re- 
 vised Statutes, ' ' Jurisdiction, Accounting Offi- 
 cers and Attorney-General."] 
 
 ^^^lere the action of the Comptroller of the 
 Treasury is final and conclusive upon the head 
 of an executive department, the latter' s action 
 in directing that the settled accounts be reex- 
 amined bv a subordinate is of no validity. 
 (Baltiniore&OhioR.Co.i'.U.S.,34Ct.Cls.,504.) 
 
 The act of July 31, 1894, section 8, provides 
 that balances certified by the auditors shall be 
 '■final and conclusive upon the executive 
 branch of the Government," except that a 
 revision thereof by the Comptroller of the 
 Treasury may be obtained within a year, 
 "whose decision upon such revision shall be 
 final and conclusive upon the executive 
 branch of the Government;" and "that the 
 Secretary of the Treasury may, when in his 
 judgment the interests of the Government 
 require it, suspend payment and direct the 
 reexamination of any accoiint" (28 Stat., 207); 
 the same section also authorizes the Comptroller 
 of the Treasuiy to render a decision in advance 
 of payments, "which decision, when rendered, 
 shall govern the auditor and the Comptroller of 
 the Treasury in passing upon the account con- 
 taining said disbursement." (28 Stat., 208.) 
 
 Not conclusive upon Congress or 
 Courts. — The action of the accounting officers 
 of an executive department was never con- 
 sidered as a conclusive determination when the 
 question was brought before a court of justice. 
 The law intended to make the decisions of the 
 accounting officers final and conclusive so far 
 as the executive department was concerned, 
 but not to affect the powers of the legislature 
 or of the judiciary. The action of the account- 
 ing officers is not conclusive in a suit between 
 the United States and the individual. (U. S. 
 t;, Harmon, 147 U. S., 274, 275.) 
 
 Whatever the conclusiveness of executive 
 acts so far as executive departments are con- 
 cerned, as a rule of administration, it has long 
 been settled that the action of executive offi- 
 cers in matters of account and payment cannot 
 be regarded as a conclusive determination when 
 brought in question in a court of justice. (Wis- 
 consin Cent. R. R. Co. v. U. S., 164 U. S., 205, 
 citing U. S. V. Harmon, 43 Fed. Rep., 560, 147 
 U. S. 268; Hunter v. U. S., 5 Pet, 173; U. S. v. 
 Jones, 8 Pet., 387; U. S. v. Bank of Metropolis, 
 15 Pet., 377.) 
 
 Accounts and balances stated and certified 
 by the accounting officers are neither conclusive 
 nor prima facie evidence of the indebtedness 
 of the Government, in a judicial proceeding, 
 nor can an action be brought upon them. 
 (McKnight's case, 13 Ct. Cls., 292; affirmed 
 98 U. S., 179.) 
 
 A settlement of an account is not consum- 
 mated and payment authorized until a warrant 
 has been prepared and issued to the payee or his 
 attorney; the different processes of accounting 
 are not consummated beyond recall until the 
 claimants receive the negotiable drafts of the 
 Treasurer; such drafts are understood to con- 
 stitute new contracts on the part of the Govern- 
 ment, in which the previous claim, upon which 
 they issue, are merged. The certificates and 
 orders made previous to the issuing of the drafts 
 are departmental proceedings. Parties gain 
 no new rights thereby into which their former 
 rights of action are merged, and upon which ac- 
 tions can and must be brought as upon an 
 award. Accordingly, held that a certificate of 
 the Comptroller of the Treasury, certifying the 
 amount of a l^alance due to a Government con- 
 tractor, and a warrant addressed to the Treas- 
 urer, duly countersigned and registered for 
 payment of the same, did not constitute con- 
 clusive e\'idence in a suit in the Court of Claims 
 to recover an uni^aid balance of the original 
 amount so certified to be due by the Comp- 
 troller, but which was withheld upon order of 
 the Secretary of the Treasury as a set-off on 
 account of a debt due the United States. 
 Further, held that the decision of the account- 
 ing officers in favor of the claimant is not even 
 prima facie evidence of indebtedness when suit 
 is l)rought in the Court of Claims. The func- 
 tions of that court are to hear and determine 
 original claims and demands against the United 
 States, founded on contract, statute, or De- 
 partmental regulation, and not upon the reports 
 and action of accovmting officers made for pur- 
 poses altogether different from that of submis- 
 sion to any court. Claimants are required to 
 establish their rights in the Court of Claims by 
 original and legal evidence, and are not to 
 rely upon reports and certificates of officers 
 who pass upon claims without the formality 
 of such evidence and proofs as are required in 
 courts of justice; certificates made upon ex 
 parte affidavits, often of claimants and inter- 
 ested parties; documents not proA^en under 
 oath, and reports of other officers not sworn to, 
 and other evidence satisfactory to them, and 
 which under all the circumstances may be 
 trustworthy to a greater or lesser extent, as is 
 the unsworn and hearsay e\adence on which 
 most of the business of daily life outside of the 
 courts is conducted, but which may be wholly 
 incompetent in the Court of Claims. The 
 statement of accounts upon such evidence, by 
 accounting officers who have no other knowl- 
 edge of the facts, would he an unsatisfactory 
 foundation on which to rest a prima facie case 
 against the United States when parties come 
 into court to set up and enforce their legal 
 rights. (McKnight v. U. S., 13 Ct. Cls., 292; 
 affirmed 98 U. S., 179.) 
 
 [However, there are certain classes of claims, 
 where the claimant's rights and the UabiUty 
 of the United States are not fixed until the dis- 
 cretion of some designated officer has been ex- 
 ercised thereon, and an allowance made by 
 him; in all these cases, the officer charged by 
 statute with the duty of allowing or disallow- 
 ing the claim in his discretion, or according to 
 his judgment, must first act before the claim- , 
 
 247 
 
Sec. 236. 
 
 Pt.2. REVISED STATUTES. 
 
 Treasury Department. 
 
 ant's right is fixed. Then when claimant haa 
 obtained a decision of such oflicer in his favor 
 his demand, of which that decision is a prima 
 facie if not conchisive determination, if the 
 othccr acts within the scope of his authority and 
 in accordance with the provisions of law, may 
 be the foundation of an action in the Court of 
 Clainis or may pass the accoimting olRcers and 
 be paid by drafts upon warrant duly issued, as 
 in other cases. (McKnighti;. U. S., 13 Ct. Cls., 
 308, 309 affii-med 98 U. S., 179; file 26543-66, 
 Sept. 8, 1911.)] 
 
 The idea that the Government is finally con- 
 cluded by the result at which the accounting 
 officers of the Government may arrive, would be 
 regarded as a novelty within and without the 
 several departments. (Chorpenning v. U. S., 
 94 U. S., 397.) 
 
 In the case of an unliquidated claim 
 against the United States, where such claim 
 is settled by the accounting officers, and the 
 claimant accepts payment under such settle- 
 ment without objection, this ia a complete 
 discharge of his demand against the Govern- 
 ment, and he can not thereafter recover a fur- 
 ther sum by suit in the Court of Claims. [In 
 this case, there was a contract by which the 
 Government was bound to pay in accordance 
 with the terms agreed upon, but the entire 
 price to be paid was not fixed, a part being 
 contingent and being made to depend upon a 
 variety of circumstances.] (Baird v. U. S., 96 
 U. S.,430.) 
 
 In case of a liquidated debt or demand, 
 part payment of the amount due cannot dis- 
 charge the liability of the Government for the 
 balance, any more than in similar transactions 
 between individuals. (Baird v. U. S., 96 U. S., 
 430.) 
 
 For other cases, see 'IV. Jurisdiction, 
 Accounting Officers, and Federal Courts." 
 
 VIII. Reopening op Accounts. 
 
 (A) In general. 
 
 (B) Mistake of fact. 
 
 (C) Mistake of law . 
 
 (D) Subsequent administration. 
 
 (E) Same administration. 
 
 See note to section 417, Revised Statutes, 
 "Power of Secretary to review acts of pred- 
 ecessor." 
 
 The Secretary of the Treasury may, when in 
 his judgment the interests of the Govern- 
 naent require it, suspend payment and 
 direct the reexamination of any account. 
 (Act July 31, 1894, sec. 8, 28 Stat., 207.) 
 
 Any person whose accounts may have been 
 settled, tlie head of the executive depart- 
 ment, or of the board, commission, or es- 
 tablishment not under the jurisdiction of 
 an executive department, to which the 
 account pertains, or the Comptroller of the 
 Treasury, may, within a year, obtain a re- 
 vision of an account by the Comptroller of 
 the Treasury, whose decision upon such re- 
 vision shall be final and conclusive upon 
 the executive branch of the Government. 
 (Act July 31, 1894, sec. 8, 28 Stat., 207.) 
 
 (A) In general. 
 
 After the expiration of a year from the 
 date of an auditor's settlement of an account, 
 which has not been revised by the Comptroller 
 of the Treasury, under the established rules for 
 reopening accounts the auditor would be au- 
 thorized to reopen his previous settlement 
 upon newly discovered material evidence. (4 
 Conip. Dec, 303; 8 Comp. Dec, 24.) 
 
 Where the account of a disbursing ofli- 
 cer of the Navy has been settled by the 
 accounting officers, it is not competent for the 
 auditor at an after time, upon an allegation of 
 error or omission, or for other cause, to open 
 the account, restate it, and upon the account 
 thus restated to institute proceedings by a war- 
 rant of distress against the debtor. If, after the 
 account had once been stated and closed, the 
 accounting officers could open it again, there 
 would be no limitation either as to the length 
 of time or the frequency with which such ac- 
 tion might be taken. Also, if it be competent 
 to open the account in favor of the United 
 States, the converse of the proposition must be 
 equally true, upon the principles of justice. 
 A doctrine which leads to such consequences 
 can not be sound. The Government is not 
 without ample remedy tliough this power 
 should be denied to the auditor, as it could re- 
 cover in an action at law any sums of which it 
 had been unjustly deprived. (Ex parte Ran- 
 dolph, 20 Fed. Cas. No. 11558, opinion of 
 Barbom-, J., concizrred in by Marshall, Circuit 
 Justice.) 
 
 The accounts of paymasters never being 
 closed, the accounting officers may secm-e im- 
 mediate payment of balances due from them 
 and yet open and readjust their accounts at 
 any time. (Stevens v. U. S., 41 Ct. Cls., 344.) 
 
 Similarly, the account of a retired 
 oflH.cer is never closed from the date of his re- 
 tirement. Overpayments made at one time by 
 mistake can be corrected and properly charged 
 against credits coming in afterwards. (U.S. v. 
 Burchard, 125 U. S., 176.) 
 
 No settlements are agreed upon as final 
 between a contractor and the United States, 
 where the contract relations still continue and 
 have continued consecutively since the first 
 overpayment; although it is true that accounts 
 have been stated by the accounting officers 
 and payments made quarterly. For the pur- 
 pose of rectifying mistakes, the items of the 
 several statements upon which the auditor 
 certifies balances due for carrying the mails, 
 ordinarily and in the absence of special cir- 
 cumstances, may be regarded as running ac- 
 counts, at least while the parties continue in 
 the same dealings between themselves. (Du- 
 val's case, 25 Ct. Cls., 46, 58; approved Wiscon- 
 sin Cent. R. R. Co. v. U. S., 164 U. S., 190, 211.) 
 
 (B) Mistake of fact. 
 It is estabhshed by numerous decisions on 
 the subject that where payments are made by 
 a public officer in violation of law, but through 
 nustake of fact as distinguished from mistake 
 or error of law, the Government has a clear 
 right to recover back the overpayment. (Du- 
 val's case, 25 Ct. Cls., 58.) 
 
 248 
 
Treasury Department. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 236. 
 
 (C) Mistake of law. 
 
 1. OPINIONS OF ATTORNEYS-GENERAL. 
 
 2. COURT OP CLAIMS DECISIONS. 
 
 3. DECISIONS OF SUPREME COURT. 
 
 4. MISCELLANEOUS DECISIONS. 
 
 [In private dealings between individuals the 
 general rule has been established that money 
 paid with full knowledge of all the facts 
 involved, but through a mistaken view of the 
 law applicable to such facts, can not be 
 recovered back, the rule being founded on 
 the legal maxim "Ignorantia legis neminem 
 excusat". In some cases it has been broadly 
 stated that this rule applies to overpayments 
 made by a public officer, the same as in the case 
 of private parties; while in others it has been 
 stated that upon grounds of public policy the 
 rule has no application whatever to the Govern- 
 ment, which can not be bound by the mistakes 
 of its officers, whether of fact or of law. How- 
 ever, an examination of the authorities will dis- 
 close that the question whether or not the rule 
 shall be applied to overpayments made by pub- 
 lic officers has been governed by the facts of the 
 particular case. Thus, where the circumstances 
 are such that the one receiving the overpay- 
 ment could not, ex aequo et bono, be required 
 to refund same to the Government, the general 
 rule has been applied ; while, on the other hand, 
 when the situation was reversed, it has been 
 held that the Government was entitled to re- 
 cover back the amount of the overpayment. 
 (See file 26254-2160:2, June 7, 1917, Sec. Navy 
 to Comp. Treas.) 
 
 [It is also settled that where the one receiv- 
 ing the overpayment does not acquiesce in the 
 settlement, but himself seeks to have the ac- 
 count reopened and corrected to his advantage, 
 the Government has the right, at the same 
 time, to have corrected errors committed in the 
 settlement, to its prejudice, although due to 
 mistake of law. (See 2 Ency. U. S. Rept., 515.) 
 
 [The decisions on this subject are set forth 
 below.] 
 
 1. OPINIONS OP ATTORNEYS GENERAL. 
 
 Where the Govemin.ent has voluntarily 
 paid money in consequence of an erroneous 
 construction of the law, _ adopted without 
 due reflection and examination of the Treasury 
 Department, I do not recommend that the 
 claimant be called upon to refund the moneys 
 he has received. I am accustomed to advise 
 acquiescence in what is done as done. (6 Op. 
 Atty. Gen., 568.) 
 
 But if claimant insists on having his 
 accounts opened to readjust them, with a 
 view to correcting errors committed to his 
 prejudice, it would be right, and the duty of 
 the accounting officers, to correct at the same 
 time any error committed to the prejudice of 
 the Government. The effect of this will be 
 that if the accounts are reopened at the instance 
 of the claimant, the readjustment must be com- 
 plete and legal in all its parts, and he may be 
 called upon to account for the money which he 
 
 has received heretofore by mistake of law. (6 
 Op. Atty. Gen., 576.) 
 
 Where an account has once been duly 
 adjusted, settled, and closed by the proper 
 officers, with full knowledge of all the factsand 
 where no errors in calculation have been made, 
 it has been repeatedly held that it can not be 
 reopened without express authority of law, and 
 must be regarded as final and conclusive. No 
 subsequent decision upon a doubtful or con- 
 troverted question of law, essentially modify- 
 ing a prevailing rule which was applied to the 
 settlement of an account, would authorize the 
 reopening of it, with a view to a readjustment 
 of it in accordance wdth such decision. (12 
 Op. Atty. Gen., 386.) 
 
 Upon principles of administrative pohcy 
 which ought to be considered firmly estab- 
 lished, settlements made between an officer of 
 the Army and the accounting officers in the 
 matter of his pay are conchisive upon the 
 executive department of the Government; and 
 such settlements can not be reopened years 
 afterwards, upon the allegation that overpay- 
 ments had been made to the officer with full 
 knowledge of all the facts, but under a mis- 
 taken view of the law, and that such overpay- 
 ments should be recovered by set-off against 
 allowances coming due and to which he is 
 legally entitled. (17 Op. Atty. Gen., 448; fol- 
 lowed, 19 Op. Atty. Gen., 439.) 
 
 The principle that every one is assumed 
 to know the law can be rehed on by the 
 citizen in his defense when sued by the Gov- 
 ernment for an overpayment made to him under 
 a mistake of law; and the Government may 
 equally rely on the same principle as a defense 
 when sued by the citizen. Accordingly, a 
 settlement of the accounting officers can not be 
 reopened on application of claimant because of 
 a subsequent decision of the Supreme Court 
 holding the accounting officers' construction of 
 the law to be erroneous. If it had happened 
 that the claimant had , through a mistake of law 
 of the accounting officers of the United States, 
 been paid too much instead of too little, it 
 would seem quite clear that the excess could 
 not be recovered back, if the principle appli- 
 cable to a similar case between individuals 
 should govern; and the Supreme Court of the 
 United States have said that, "with a few ex- 
 ceptions, growing out of considerations of 
 public policy, rules of law which apply to the 
 Government and to individuals are the same. 
 There is not one law for the former and another 
 for the latter." (19 Op. Atty. Gen., 439, citing 
 McKnightt'.U.S.,98U.S., 186.) 
 
 A voluntary payment made with full 
 knowledge of aU the facts and circumstances 
 of the case, althoiigh made under a mistaken 
 view of the law, can not be revoked and the 
 money so paid can not be recovered back; this 
 principle applies in the case where an officer 
 of the Army was allowed a claim for ser^ace pay 
 by the accounting officers, and the Supreme 
 Court thereafter held all such allowances to be 
 without authority of law. Afterwards the 
 officer filed a claim for certain pay and allow- 
 ances to which he was justly entitled, and it 
 was proposed to set off against the amount of 
 this claim the sum which had been improperly 
 
 249 
 
Sec. 236. 
 
 Pt. 2. REVISED STATUTES. 
 
 Treasury Department. 
 
 paid liim. In such case the settlement could 
 not be reopened upon the ground that it pro- 
 ceeded on a mistaken view of the legislation 
 covering the sul)ject involved. (21 O]). Atty. 
 Gen., ;52r), explaining 19 Op. Atty. Gen., 439.) 
 
 In the case of an ignorant and unlettered 
 private soldier the rule of law should apply, 
 a multo l\)rtiori (for much stronger reasons), 
 which has been invoked for the relief of edu- 
 cated and experiencetl ofKcers of the Army, 
 viz, that payments made by mistake of law 
 can not be recovered by the Government. (21 
 Op. .\tty. Gen.,323.) 
 
 Navy pay officers are not responsible for 
 payments made by mistake of law, if such pay- 
 meiits are made on certified pay rolls, as re- 
 quired by the Navy regulations, and the items 
 are fair on their face. (Op. Atty. Gen., May 19, 
 1915, 171 S. and A. Memo., 3611.) 
 
 2. COURT OF CLAIMS DECISIONS. 
 
 The rule that the Government can not 
 be held responsible for the mistakes of its 
 agents includes mistakes of law as well as mis- 
 takes of fact, and extends to a mistake of law 
 committed by the accounting officers in adjust- 
 ing and allowing an account of one supposed to 
 be but not an officer of the Government. (Mc- 
 Elrath v. U. S., 12 ("t. Cls., 202.) (See decision 
 of Supreme Court affirming this case, noted be- 
 low under "3. Decisions of Supreme Court.") 
 
 Where one has received raoney to which, 
 ex aequo et bono, he is not entitled, the 
 general rule of law and equity is that an action 
 lies for its recovery. The only exception to this 
 rule is that where between individuals the 
 money has been paid by a mistake of law it can 
 not be recovered ; and we think this exception 
 is not applicable to the United States. (McEl- 
 rathv. U. S., 12 Ct. Cls., 217.) 
 
 The United States do not guarantee 
 either the capacity, the integrity, or the 
 care of their officers, and are not responsible 
 for their deficiencies in either. As the reason of 
 this rule is the public protection, it overrules 
 individual equities; and as this rule is founded 
 on "a great public policy" established for the 
 public protection, it does not admit of excep- 
 tions but includes mistakes of law as well as 
 mistakes of fact, because the one may be as inju- 
 rious to the public interests as the other. 
 (McElrath v. U. S., 12 Ct. Cls., 216.) 
 
 It is manifest the petitioner has no 
 equitable claim to the money he received by 
 mistake of the accounting officers. He was 
 legally dismissed as an officer of the Marine 
 Corps, and seven years later there was an at- 
 tempted revocation of the order of dismissal, 
 and claimant then tendered his resignation, 
 ■which was accepted. He rendered no 8er^dce 
 to the Government after his dismissal and he 
 intended to render none. But the accounting 
 officers allowed him half pay for this period, 
 ■when he was not in law or in fact an officer of the 
 Marine Corps, and he thereupon sued for the 
 difference between half pay and full pay for said 
 period. Under such circumstances 'the Gov- 
 ernment is entitled to recover the unanthorized 
 payment by counterclaim. (McEhath v. U. S., 
 12 Ct. Cls., 217.) (The court gave judgment 
 
 against McElrath because the accounting offi- 
 cers exceeded their jurisdiction in allowing him 
 pay when he was not in oOice and rendered no 
 service, and therefore had no legal claim to the 
 money paid him and could not in conscience 
 retain it. McKeeti. U. S., 12 Ct. Cls., 562, dis- 
 senting opinion Richardson, J.) 
 
 The principles stated in McElrath 's case 
 might not applyiftheComptroller were to give 
 a construction to a statute different from that 
 which the judiciary might subsequently give, 
 whereby the officer would receive greater pay 
 or larger allowances than the law intended . In 
 such a case I am not prepared to say that the 
 Government could reopen the transaction and 
 recover back the overpayment as money paid 
 without legal authority in its official agents. 
 But in this case the claimant was an utter 
 stranger to the Government. No business or 
 official relations suV)sisted between him and the 
 Government and he had no claim or account 
 against the Government for the Comptroller to 
 adjust. (McElrath v. U. S., 12 Ct. Cls., 218, 
 concurring opinion, Nott, J.) 
 
 McElrath -was not an officer in the Navy, 
 nor had he been for any part of the period over 
 which his pretended account extended; nor 
 had he rendered any ser^vice as such; nor had 
 any legal relations between him and the Gov- 
 ernment existed. The Comptroller therefore 
 acted ab initio -without authority; and his mis- 
 take, whether of law or of fact, that he had 
 jurisdiction of the pretended account, gave him 
 none. There is a very broad difference between 
 that case and one in which the Comptroller has 
 jurisdiction of the account, where the claimant 
 is a verital^le officer of the Na-V7»^ but through 
 an incidental mistake of law in the settlement 
 of the account, the officer is allowed some item 
 of pay which in the judgment of the courts 
 should have been disallowed. (McKee v. U. S., 
 12 Ct Cls., 532.) 
 
 In the case of disbursing officers the 
 policy of the Government has been to ac- 
 knowledge no payments as made on its behalf 
 save those which were authorized by law. If a 
 disbursing officer makes a mistake of law, the 
 payment is disallowed when his accounts come 
 in for settlement and charged to him as if the 
 money were still in his hands. But the Comp- 
 trollers of the Treasury are not disbursing offi- 
 cers. Within the proper functions of their 
 offices, they are above the re^view of the highest 
 executive authority and their decisions are 
 subject only to judicial re"vision. (McKee v. 
 U. S., 12 Ct. Cls., 532, 533.) 
 
 Se'ttlements made by the accounting 
 officers of the Government with its cred- 
 itors, untainted by fraud, and free from mis- 
 take of fact, possess the element of finality. 
 (McKee v. U. S., 12 Ct. Cls., 532.) 
 
 A practical construction going back to 
 the very beginning of the Government is 
 overwhelming, and can not be overtm-ned with 
 safety by anything short of statutory amend- 
 ment. From the first day the Treasury did 
 business until this case was brought (1876), it 
 is safe to say that the Government has never 
 gone into aiiy court as plaintiff and sued the 
 party to whom money was paid in mistake of 
 law. The courts have been open to the Gov- 
 
 250 
 
Treasury Department. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 236. 
 
 ernment ever since courts were established and 
 it has never been supposed that such an 
 action could be maintained. If the Govern- 
 ment has such power, all the settlements which 
 present and past comptrollers have ever made 
 will be liable to be reopened, as no statute of 
 limitations runs against the Government. 
 Such a ruling can not promote the public 
 welfare but would be prolific in public mis- 
 chiefs. (McKee v. U. S., 12 Ct. Gs., 533, 534.) 
 
 The true rule to be laid down is this: 
 AVhere the accounting officers of the Treasiu-y 
 are authorized to settle an account or claim 
 against the GoA-ernment, a mistake of law 
 committed incidentally in the adjustment will 
 not, after payment of "the balance found to be 
 due, affect the finality of the settlement or 
 entitle the Government to recover back the 
 money paid in mistake of law ex aequo et bono. 
 (McKee v. U. S., 12 Ct. Cls., 534.) Reversed on 
 other grounds (U. S. v. McKee, 97 U. S., 233). 
 
 The question to be determined in these 
 cases, when public money is paid away by 
 public officers with full knowledge of the facts 
 but in mistake of law upon an honest inter- 
 pretation and decision, is how far those officers 
 have been intrusted by the Government with 
 the authority to decide, because if they have 
 no such authority, the Government would 
 under no circumstances be bound by their 
 decisions. (McKee v.^ U. S., 12 Ct. Cls., 552; 
 dissenting opinion, Richardson, J., concurred 
 in by Drake, Ch. J.) 
 
 The accounting officers stand in differ- 
 ent relations to the Government from dis- 
 bursing officers who have only ministerial 
 duties to perform; they must of necessity de- 
 cide questions of law and fact which arise in 
 the settlement of accounts. To some extent 
 the Comptrollers are quasi judicial officers. 
 (McKee v. U. S., 12 Ct. Cls., 553, 554, opinion 
 Richardson, J.) 
 
 Public policy requires that the Govern- 
 ment should not be bound by the mistakes of 
 its officers; it also requires that the settlements 
 of the accounting officers, within the exact 
 scope of their authority, when followed by pay- 
 ment and acquiesced in by the claimants, should 
 be held final and conclusive on the Govern- 
 ment unless impeached by fraud, or mistake 
 of fact, as in like cases between individuals. 
 Such settlements involve vast accounts of col- 
 lectors and disbursing officers under heavy 
 bonds; the complicated accounts of persons 
 furnishing supplies to the Army, Navj', and 
 other branches of the Government; the ac- 
 counts of individuals dealing in thousands of 
 ways with the constituted authorities, as well 
 as accoimts for the salaries of public officers 
 to whom it is often of great importance to 
 know exactly how much they can depend 
 upon receiving. (McKee v. U. S., 12 Ct. Cls., 
 557, opinion Richardson, J.) 
 
 If nothing could be regarded as settled 
 against the Government in the adjustment 
 of accounts except what is determined by the 
 final judgment of the courts, it would follow 
 that whenever a new construction is placed on 
 a statute different from that which the same 
 or a former comptroller adopted in the settle- 
 ment of earlier accounts, although there were 
 
 no frauds, mistakes or concealments of facts 
 and the parties had dealt with the Govern- 
 ment on the basis of the former rulings, and 
 had long acquiesced in the settlement, the 
 accounts might nevertheless be reopened and 
 the parties brought into court upon a claim 
 for money paid them in mistake of law. And 
 as no statute of limitations bars actions brought 
 by the United States, any account settled since 
 the first organization of the Government might 
 be so reopened. (McKee v. U. S., 12 Ct. Cls., 
 559, opinion Richardson, J.) 
 
 If claimant does not acquiesce in the 
 settlement but brings an action in the Court 
 of Claims to recover an additional amount, he 
 can not, in law or justice, well complain if the 
 United States on their part no longer acquiesce 
 in the payment, and, in defending themselves, 
 have the account opened throughout, stated 
 anew, and a balance found against him, when 
 it appears that the officers of the department 
 exceeded their powers in exercising jurisdic- 
 tion over the claim and mistook the law appli- 
 cable thereto, and the money paid was not 
 legally due to the claimant and could not 
 have been recovered by an action in the Court 
 of Claims or otherwise, and can not in con- 
 science be retained by him. Had claimant 
 himself not disturbed the settlement by bring- 
 ing suit, the United States would, no doubt, 
 have abided by the action of their officers as 
 they have done before in hundreds of similar 
 cases where executive officers have acted upon 
 a mistaken interpretation of statutes, honestly 
 and fairly arrived at. And because the United 
 States do not in their ordinary business dis- 
 turb settlements in which the claimants ac- 
 quiesce, it does not follow that they have no 
 right to recover back pajmaents illegally made 
 on those which the claimants themselves re- 
 open by actions bringing the Government into 
 court. (McKee v. U. S., 12 Ct. Cls., 560, 561, 
 564, opinion Richardson, J.; Baxter v. U. S., 
 32 Ct. Cls., 75, 80.) 
 
 The Government can no more recover 
 back money paid under a mistake of law 
 than an individual, in a case where a settle- 
 ment made by the parties in good faith, under a 
 mistaken construction of the statute, is sought 
 to be reopened by the United States without the 
 consent of the other party for the purpose of re- 
 covering back money paid under it for services 
 actually rendered at an honest valuation. [In 
 this case it was decided that settlements made 
 with a 8uper\'isor of internal revenue, crediting 
 him with clerk hire paid to a person who wag 
 at the same time a ganger, and who could not, 
 therefore, legally receive additional compensa- 
 tion as clerk, were conclusive on the judicial 
 department of the Government ; that there was 
 nothing contrary to good morals or conscience 
 in the payment or receipt of the money; and 
 that in allowing the payments the Treasury 
 officers acted strictly within the scope of offi- 
 cial authority and discretion.] (Hedrick'a 
 case, 16 Ct. Cls., 88, distinguishing McElrath's 
 case.) 
 
 "No money shall be paid to any person 
 for his compensation who is in arrears 
 to the United States, until he has accounted for 
 and paid into the Treasury all sums for which 
 
 54641°— 22 17 
 
 251 
 
Sec. 236. 
 
 Pt. 2. REVISED STATUTES. 
 
 Treasury Department. 
 
 he is liable * * *" (Sec. 1766, R. S.) This 
 section ajiplies only to cases in which the party 
 is liable to the United States. But the parties 
 are not liable to the United States for moneys 
 paid and received under the circumstances 
 shown in this case (payments made in good 
 faith, by mistake of law, for services actually 
 rendered). (Hedrick's case, 16 Ct. Cls., 104.) 
 (See "VI. Set-Off" above.) 
 
 Where payments sought to be recovered 
 back were made in good faith, with no im- 
 pro])er ])urpose on either side, witli full knowl- 
 edge of all the facts but under a mistaken con- 
 struction of the law, it is quite clear that, if 
 the controversy were between private parties, 
 the money under such circumstances could not 
 be recovered back. The fact that the transac- 
 tions took place with an agent of the Govern- 
 ment does not change the rule. (Arthur v. 
 U. S., 16 Ct. Cls., 433, citing and following U. S. 
 V. Freeman, 3 How., 564.) 
 
 Salary paid by mistake of law can not be 
 recovered back by the Government, even 
 though the recipient was not, in law, a public 
 officer; where both parties proceeded in good 
 faith, and the claimant did occupy the position, 
 in fact, of an officer on the retired list of the 
 Army, and as such was subject to the disquali- 
 fications of law, and the performance of such 
 duties as by law are incident to that relation. 
 This case differs from McElrath's case in the 
 essential particular that the claimant has made 
 no effort to disturb the settlement; and also in 
 that McElrath rendered no service and occupied 
 no relation to the Government either in law or 
 in fact. (Miller v. U. S., 19 Ct. Cls., 353.) 
 
 Where money is paid in mutual mistake of 
 law, and the court can not restore the parties to 
 their original position before the happening of 
 their mutual error, it will leave them in statu 
 quo. (Palen v. U. S., 19 Ct. Cls., 389; Bennett 
 V. U. S., 19 Ct. Cls., 388.) 
 
 The doctrine does not have such general 
 appUcation to public ofl&cers as to indi- 
 \'iduals, that money paid can be recovered 
 back when paid in mistake of fact and not of 
 law. Public officers use the funds of the 
 people, while individuals deal with their own 
 money, where nobody but themselves suffer 
 for their ignorance, carelessness, or indiscretion. 
 In the former case, the elements of agency, and 
 the authority and duty of officers and their 
 obligations to the public, of which all persona 
 dealing with them are bound to take notice, 
 are always involved. (Barnes v. District of 
 Columbia, 22 Ct. Cls., 336, 394; approved Wis. 
 Cent. R. R. Co. v. U. S., 164 U. S., 212.) 
 
 A manifest wrong and injury will be 
 caused by a subsequent judicial interpretation 
 which leaves the party without redress in a 
 case where an executive department chai'ged 
 with the administration of a statute has pre- 
 viously given to it an interpretation upon the 
 faith of which the party acts. For if the con- 
 struction afterwards adopted had been given the 
 statute by the executive officers at the proper 
 time, the claimant might have declined to 
 enter into the contract and to jjerform the ser- 
 vice. (Wis. Cent. R. R. Co. r'. U. S., 27 Ct. 
 Cls., 468; explaining and distinguishing U. S. 
 V. Ala. R. R. Co., 142 U. S., 621, noted below.) 
 
 A different question is presented in a 
 case where the claimant had no option 
 but to render the service which formed the 
 basis of the claim; as where a land-grant rail- 
 road had to perform the required service for the 
 Government and to perform it under the terms 
 prescribed by Congress. If the executive de- 
 partment in that case had originally given the 
 statute the same construction aftenvards given 
 it by the court, the claimant could not have 
 declined to perform. The only effect which 
 the original interpretation of the department 
 caused in this case was that the claimant, by 
 reason of overpayment, had in its possession 
 money which it was not entitled to have, and 
 that it had the use of such money without the 
 payment of interest. Therefore no injury was 
 done the claimant in such a sense as to prevent 
 the proper construction now being given the 
 law. (Wis. Cen. R. R. Co. v. U. S., 27 Ct. Cls., 
 468.) (See decision of Supreme Court in this 
 case, noted below.) 
 
 When money is paid after careful considera- 
 tion by the proper officers of the Government, 
 upon settlements made by the accounting 
 officers, it can not be recovered back because 
 paid in mistake of law. (Hillborn v. U. S., 27 
 Ct. Cls., 547; 28 Ct. Cls., 237.) 
 
 "Whatever doubt may have existed hereto- 
 fore as to the right of the Government to main- 
 tain a counterclaim for money paid by its 
 agents or officers without authority of law or 
 paid through a misconstruction of the law has 
 now been removed by the decision in the case 
 of the W^isconsin Central Railroad Company v. 
 United States, 164 U. S., 190, 210 (affirming 
 the decision of this court)." (Baxter v. U. S., 
 32 Ct. Cls., 75, 81; Wis. Cent. R. Co. v. U. S., 
 noted below.) 
 
 "It has been held in many cases that pay- 
 ments made in good faith through a mistaken 
 interpretation of the law may not be recovered . ' ' 
 (Downes v. U. S., 52 Ct. Cls., 327.) 
 
 3. DECISIONS OP SUPREME COUET. 
 
 The settlements of the accounting oflS.- 
 cers have always been considered as con- 
 clusive upon the Government, but not as 
 against the individual. The law expressly 
 provides that rejected items may be allowed 
 by the court. Accounts amounting to many 
 millions annually come under the action of 
 these officers. It is therefore of great impor- 
 tance to the fjublic and to individuals that the 
 rules by which they exercise their powers 
 should be fixed and known. (U. S. v. Jones, 8 
 Pet., 375.) 
 
 What has been done under an erroneous 
 construction of the law is binding upon 
 the Government and can not be recalled to 
 the pecuniary disadvantage of any officer who 
 may have received pay and emoluments under 
 such erroneotis practice. (U. S. v. Freeman, 3 
 How., 564; followed Arthur i). U. S., 16 Ct. Cls., 
 433.) 
 
 If a credit has been given or an allow- 
 ance made by the head of a department, and 
 it is alleged to be an illegal allowance, the judi- 
 cial tribunals of the country must be resorted 
 to to construe the law under which the allow- 
 
 252 
 
Treasury Department. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 236. 
 
 ance was made, and to settle the rights between 
 the United States and the party to whom the 
 credit was given. (U. S. v. Bank of the Me- 
 tropolis, 15 Pet., 377.) ["The mistake referred 
 to in this citation was assumed and expressed 
 to be a mistake of law, for the resort to the Judi- 
 cial tribunals was to be had 'to constnie the 
 law under which the allowance was made.' 
 And we think that the citation is an aiithorita- 
 tive declaration of the Supreme Court that 
 where a payment ia made to an officer by a 
 mistake of law in a department, a suit may be 
 maintained by the United States for the recov- 
 ery of the money paid." (McElrath v. U. S., 
 12 Ct. Cls.,217.) "The view thus indicated 
 that executive decisions in cases like the pres- 
 ent are not binding on the coiirts, has been re- 
 peatedly affirmed and steadily adhered to." 
 (Wis. Cent. R. R. Co. v. U. S., 164 U. S., 207.)] 
 
 Had the appellant rested upon the set- 
 tlement of his account by the proper officers 
 of the Government, his right to invoke the gen- 
 eral nile (that payments made under a mistake 
 of law can not be recovered back) would have 
 been entitled to more consideration than it can 
 now receive. If the general rule applicable in 
 such cases would preclude the Government 
 from reclaiming money which had been paid 
 under a mistake of law simply, that rule is inap- 
 plicable under the cu'cumstances disclosed in 
 the present case. Upon recei\'ing the amount 
 awarded to him by the representatives of the 
 Government, he distinctly announced his pur- 
 pose not to abide by their settlement of his ac- 
 counts; but in disregard thereof to demand an 
 additional sum upon the basis of full pay and 
 allowances. * * * This suit itself invites 
 the court to go behind that settlement to reex- 
 amine all the qiiestions arising out of appellant's 
 claim for full pay and allowances and to con-ect 
 the error which he insists was committed to hia 
 prejudice by the accounting officers of the Gov- 
 ernment. The Government, declining to plead 
 the former settlement in bar of suit, meets him 
 upon hia own chosen ground, and insisting that 
 its officers, misapprehending the law, paid to 
 him out of the Treasury money to which he was 
 not legally entitled, asks as we think it may 
 rightfully do judgment for the amount thus 
 improperly paid to him. (McElrath v. U. S., 
 102 U. S., 441; distinguished Hedrick's case, 16 
 Ct. Cls., 88, Miller's case, 19 Ct. Cls., 353, Walker 
 V. U. S., 139 Fed. Rep., 409, 418; affirmed 148 
 Fed. Rep., 1022; followed V. S. v. Dempsey, 
 104 Fed. Rep., 197.) 
 
 The Government is not bound by the 
 action of the Navy Department in deliver- 
 ing old materials to a contractor at an agreed 
 price, considerably less than their real value. 
 Such action was without waiTant of law, and in 
 a suit brought by the contractor for payment 
 on hia contract, it was held that, the material 
 having been disposed of, he should be required 
 to account for it at its true value. The fact that 
 the account of appellant was settled by the 
 officers of the Na\'y Department by charging 
 him with the value of the old material at the 
 agreed price is no bar to the recovery of its real 
 value by the Government. The whole trans- 
 action was illegal and the appellant is charge- 
 able with knowledge of the fact. (Steele v. U. S. 
 113 U. S., 128.) 
 
 When the remedy of the party against 
 the Government is barred by the statute of 
 limitations, and the remedies of the United 
 States on the other side are intact, owing to its 
 not being subject to any statute of limitation, 
 settled accounts, where the United States has 
 paid the balance found due, can not be opened 
 and set aside on account of technical irregulari- 
 ties in the allowance of expenses, or merely be- 
 cause some of the prescribed steps in the ac- 
 counting, which it was the duty of a head of a 
 department to see had been taken, have in fact 
 been omitted. (U. S. v. Johnston, 124 U. S., 
 236, 254.) [This observation of the Supreme 
 Court illustrates the danger of the doctrine 
 which the GoA'ernment pushes in a case where 
 it attempts to recover back overpayments, 
 years after final settlement, on the ground that 
 such overpayments were made by mistake of 
 law. (Walker-!). U. S., 139 Fed. Rep., 409, 417.)] 
 
 When an oflB.cer brings suit in the Court 
 of Claims to recover a balance claimed to be 
 due him on his pay account, the Government 
 by counterclaim can recover overpayments 
 made to him on that account. \\Tiether the 
 Government can in any case be precluded from 
 reclaiming money wliicli has been paid by its 
 disbm'sing and accounting officers inider a mis- 
 take of law is a question which it is not now 
 necessary to decide any more than it was in 
 McElrath v. U. S. (above). This is a case 
 where the disbursing officer, supposing that a 
 retired officer of the Navy was entitled to more 
 than it tiu-ns out the law allowed, overpaid 
 him. Certainly under such circumstances the 
 mistake may be corrected. The action was 
 brought to recover a balance claimed by the 
 officer to be due him on pay account from the 
 date of his retirement. In reality the account 
 had never been closed and was always open to 
 adjustment. His pay was fixed by law, and 
 the disbursing officers of the department had no 
 authority to allow him any more. If they did, 
 it was in violation of law, and he has no right to 
 keep what he has thus obtained. (U. S. v. 
 Biu-chard. 125 U. S., 176.) 
 
 Where money has been paid under a 
 mistake of law it can not be recovered 
 back. It is denied that this rule is applicable 
 to the United States upon the ground that the 
 Government is not bound by the mistakes of its 
 officers, whether of law or of fact; but inasmuch 
 as the claimant's name was placed in the retired 
 list of the Army by the Secretary of War in ap- 
 parent compliance with the pro\'ision8 of law, 
 and as he acted as an officer de facto (in fact), 
 we are not inclined to hold that he has received 
 money as salary which, ex aequo et bono, he 
 ought to retiu-n. (Badeau v. U. S., 130 U. S., 
 439.) 
 
 Where payment was made by the United 
 States in consequence of a misrepresentation 
 by the defendant to the Secretary of the Treas- 
 ury which created a misapprehension on his 
 part of the nature of the defendant's services, 
 the amount so paid ought in equity and good 
 conscience to be returned to the United States. 
 (Sanborn v. U. S., 135 U. S., 271.) 
 
 It is a settled doctrine of this court that 
 in case of ambiguity the judicial department 
 will lean in favor of a construction given to a 
 statute by the department charged with its 
 
 253 
 
Sec. 236. 
 
 Pt.2. REVISED STATUTES. 
 
 Treasury Department. 
 
 execution, and if such construction be acted 
 upon for a number of years will look with dis- 
 favor upon any sudden change whereby parties 
 who have contracted with the Government upon 
 the faith of such construction may be preju- 
 diced. It is especially objectionable that a 
 construction of a statute favorable to the indi- 
 vidual citizen should be changed in such man- 
 ner as to become retroactive and to require from 
 him the repayment of moneys to which he had 
 supposed liimself entitled and upon the expec- 
 tation of which he had made his contracts with 
 the Government. (U. S. v. Ala. R. R. Co., 142 
 U. S.,621.) 
 
 Where a naval officer sues for a defi- 
 ciency claimed to exist in hie previous grade, 
 and his contention is sustained, there may be 
 deducted from the sum due him the amount of 
 overpajmients made in his present grade upon a 
 difference of opinion as to the law. (U. S. v. 
 Stahl, 151 U. S.,366.) 
 
 Where no peculiar circumstances ap- 
 pear to make such recovery inequitable 
 and unjust, money paid in violation of law 
 upon balances certified by the accounting offi- 
 cers generally may be recovered back by coun- 
 terclaim or otherwise; the items of the several 
 statements upon which the auditor certifies 
 balances due for carrying the mails, ordinarily 
 and in the absence of special circumstances, 
 may be regarded as running accounts, at least 
 while the parties continue the same dealings 
 between themselves. This statement was 
 made by the Court of Claims in a case in which 
 the mistake was treated as one of fact, but the 
 governing principle is the same in the present 
 case which is one of misconstruction of law. 
 (Wisconsin Cent. R. R. Co. v. U. S., 164 U. S., 
 211, quoting Duval v. U. S., 25 Ct. Cls., 46.) 
 
 As a general mle and on grounds of 
 public policy the Goverimaent can not be 
 bound by the action of its ofticers, who must be 
 held to the performance of their duties within 
 the strict limits of their legal authority, where, 
 by misconstruction of the law under which they 
 have assumed to act unauthorized payments 
 are made. The question is not presented as 
 between the Government and its officer, or be- 
 tween the officer and the recipient of such pay- 
 ments, but as between the Govenmient and the 
 recipient, and is then a question whether the 
 latter can be allowed to retain the fruits of ac- 
 tions not authorized by law, resulting from an 
 erroneous conclusion by the agent of the Gov- 
 ernment as to the legal effect of the particular 
 8tatutc)ry law under or in reference to which he 
 is proceeding. (Wisconsin Cent. R. R. Co. v. 
 U. S., 164 U. S. 210; followed U. S. v. Demp- 
 sey, 104 Fed. Rep., 197.) (In the decision of 
 the Coiu-t of Claims in this case, noted above, it 
 was pointed out that the claimant was not 
 equitably entitled to retain the overpayments; 
 and the Supreme Com-t's conclusion was, "that 
 there is nothing on this record to take the case 
 out of the scope of the principle that parties re- 
 ceiving moneys illegally paid by a public offi- 
 cer are liable, ex aequo et bono, to refund 
 them.") 
 
 Where money has been paid without 
 authority of law, and the Government has 
 money of the same claimant in its hands, it is 
 
 not compelled to pay such money over and sue 
 to recover the illegal pajmients; but may hold 
 it subject to the decision of the court when the 
 claimant sues. And in that way multiplicity 
 of suits and circuity of action are avoided. 
 (Wisconsin Cent. R. R. Co. v. U. S., 164 U. S., 
 211.) (See "VI. Set-Off" above.) 
 
 4. MISCELLANEOUS DECISIONS. 
 
 Where the accounting officers have 
 passed the account, and payment is made, 
 it seems clear that the officer whose accounts 
 are thus approved and paid can not afterwards 
 be called upon for repayment. The Govern- 
 ment's claim in such case could have no possi- 
 ble standing, except upon the ground of fraud 
 or palpable mistake. (Tuthill v. U. S., 38 
 Feci. Rep., 538.) [This decision seems to 
 approve the same doctrine which was applied 
 by the Court of Claims in Hedrick's case, above 
 noted. (19 Op. Atty. Gen., 441.) ] 
 
 The United States may recover an 
 overpayment made by mistake of law, 
 with interest from the date when the officer's 
 accounts were settled by the Treasury Depart- 
 ment. (U. S. V. Dempsey, 104 Fed. Rep., 
 197.) [In this case an Army officer was, by 
 mistake of law, paid commutation of quarters 
 for a period during which he occupied a build- 
 ing provided by the United States for his occu- 
 pancy and use, and which was suitable for an 
 officer of his rank. The United States brought 
 suit to recover the overpayment. The court 
 said that the paymaster who paid the defend- 
 ant the above sum of money could go no further 
 in this matter than he was authorized by law. 
 The law limited his powers. The Government 
 was not bound when he exceeded the authority 
 given him by the Federal statutes. The Gov- 
 ernment having provided the defendant with 
 suitable quarters free of charge, the paymaster 
 was not authorized to pay him this money. 
 Thatundersuch circumstances, the followingde- 
 cisions maintain the rule that the Government 
 may sue for and recover back this sum of money 
 so paid — citing decisions of Supreme Court in 
 McElrath v. U. S. and Wisconsin Cent. R. R. 
 Co. V. U. S., noted above.] Compare U. S. v. 
 Sanborn (135 U. S., 271). 
 
 Whatever may be the general rule, the 
 United States stands upon no better 
 footing than woiHd a private citizen in a 
 case where money has been paid by its officers 
 under mistake of law, and the circumstances 
 are such that the Government is not entitled, 
 ex aequo et bono, to recover such money 
 from the recipient. (Walker v. U. S., 139 
 Fed. Rep., 409; affirmed 148 Fed. Rep., 1022.) 
 [In this case the money was paid to a United 
 States marshal as fees, and m the course of 
 his duty he "paid three-fourths of the amount 
 of these fees to his deputies, from time to 
 time as he made settlements, and retained 
 the balance, as was his duty to do, under 
 the law as then construed by every depart- 
 ment of the Government which had acted 
 or spoken on the subject." It was held that 
 the Government could not recover either the 
 amount paid to his deputies or the portion 
 retained by the marshal, after years had elapsed 
 
 254 
 
Treasury Department. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 236. 
 
 and the marshal had gone out of office, and was 
 without remedy to recoup his losses, and dur- 
 ing which time no objection had been made to 
 such payments by the executive departments 
 or by Congress, which continued to appropriate 
 money therefor, even though the allowances 
 may have been made under an erroneous con- 
 struction of the law.] 
 
 Where, by mistake of law for which he was 
 not responsible, an officer of the Navy was paid 
 increased compensation as an appointee from 
 civil life, when he was not, under the law as 
 construed by the Supreme Court, entitled to 
 such additional compensation, held that the 
 Government could not recover the amount of 
 the overpayment for the period from the date 
 of his appointment until the time when his 
 rating was corrected. (U. S. ?;. U. S. Fidelity 
 and Guaranty Co., 244 Fed. Rep., 310.) 
 
 The underlying principle of the deci- 
 sions is that when the sovereign comes into 
 court to assert a pecuniary demand against the 
 citizen, the court has authority and is under 
 the duty to withhold relief to the sovereign 
 except upon terms which do justice to the 
 citizen or subject as determined by the juris- 
 prudence of the forum in like subject matter 
 between man and man. (Walker v. U. S., 139 
 Fed. Rep., 409, 413.) 
 
 It is not material whether the pay- 
 ments were in fact authorized by the 
 existing statutes at the time they were made, 
 if it appears that the transactions have been 
 executed and closed, and Congress, the legis- 
 lative power which could treat them as legal 
 at that time and thereby make them legal, did 
 treat them as legal at that time. (Walker v. 
 U. S., 139 Fed. Rep., 409, 416.) 
 
 It would seem the burden is on the 
 Government to show that the accounts could 
 be reopened without doing injustice to the 
 citizen in a case where money has been paid to 
 him as a public officer by mistake of law, and 
 the settlements closed and executed before he 
 went out of office, and he accepted them aa 
 finalities. (Walker v. U. S., 139 Fed. Rep., 
 409, 417.) 
 
 When an officer accepts the final set- 
 tlements made with the auditing department 
 in full of his accounts, and does not commence 
 suit against the Government to avoid its ruling 
 as to any matters involved in those settled 
 accounts, his conduct does not bring him with- 
 in the principle of McElrath v. U. S. (noted 
 above). His attitude does not, as did that of 
 the plaintiff in McELrath's case, "invite the 
 court to go behind the settlement. " (Walker 
 V. U. S., 139 Fed. Rep., 409, 418.) 
 
 In general, the holding of the courts is 
 that the Government is not bound by the acts 
 of its officers or agents, but exceptions are made 
 by the courts in cases where the circumstances 
 are such that the refimdment under compulsion 
 of moneys so paid would be a violation of equity 
 and good conscience. (Comp. Dec, July 17, 
 1914, 161 S. and A. Memo., 3303; Comp. Dec, 
 Dec. 1, 1914, 165 S. and A. Memo., 3409; Comp. 
 Dec, Mar. 26, 1915, file 26254-1748.) 
 
 Men who have furnished all the evidence of 
 citizenship required by the administrative offi- 
 
 cers of the Navy, and who have accordingly 
 been allowed the additional pay provided tor 
 citizens of the United States, have not received 
 money "which inequity and good conscience 
 they ought to be required to return to the United 
 States." There is no principle of law which 
 in such case requires the accounting officers to 
 reopen, upon their own motion, accounts which 
 have been settled and closed, although such 
 
 Sayments would not be conclusive upon the 
 overnment if the men should seek, through 
 the accounting officers or the courts, to reopen 
 their pay accounts in order to secure something 
 claimed to be due them under a new ruling or 
 decision. (Comp. Dec, July 28, 1913, 149 
 S. and A. Memo., 2715. Where, contrary to these 
 principles, the Comptroller holds an officer in- 
 debted for overpayments made by mistake of 
 law, the Secretary of the Navy will not take 
 any action tending to the collection of the 
 amount from such officer, but should the Comp- 
 troller attempt to have suit brought against the 
 officer the Secretary will present all facts in the 
 case to the Department of Justice. (File 26254- 
 2160:4, Aug. 7, 1917; see also 26254-2160:2, June 
 7, 1917.) 
 
 Where pa3rments have been made under 
 a long-continued practice of the adminis- 
 trative department, sanctioned by the account- 
 ing officers of the Treasury, payments so made 
 by disbursing officers prior to the promulgation 
 of a Comptroller's decision reversing the former 
 construction of the law, if otherwise correct, 
 will be passed to their official credit. (20 
 Comp. Dec. 182; 72 S. and A. Memo., 225; see 
 also Comp. Dig., 295,296.) 
 
 Errors of judgment in the application of 
 legal rules to the facts which were before the 
 accounting officers can not be corrected by any 
 subsequent action of the accounting officers 
 themselves. (Dec of Second Comptroller, 
 Sept. 9, 1885, quoted in 34 Ct. Cls., 490, 493, Bal- 
 timore & Ohio R. Co. V. U. S.) [In this case the 
 accounts had been settled by a former admin- 
 istration.] 
 
 (D) Subsequent administration. 
 
 Can not generally reopen accounts set- 
 tled by predecessors. — After a final settle- 
 ment of a claimant's accounts by the Comp- 
 troller, the same can not be reopened by his 
 successor in office, except to correct "mistakes 
 in matters of fact arising upon errors in calcula- 
 tion, and in cases of rejected claims in which 
 material testimony is afterwards discovered and 
 produced." (Balto. & Ohio R. R. Co. v. U. S., 
 34 Ct. Cls., 504; H.^.v. Bank of the Metropolis, 
 15 Pet., 377, 401; Rollins and Presbrey i;. U. S., 
 23 Ct. Cls., 123.) This has become the settled 
 rule of administrative law. (Balto. & Ohio 
 R. R. Co. V. U. S., 34 Ct. Cls., 504, citing Jack- 
 son V. U. S., 19 Ct. Cls., 605, 509.) 
 
 Except in cases of fraud, mistakes in calcula- 
 tion, or the filing of material new evidence, the 
 disallowance of a claim by the Comptroller is 
 final and conclusive and the case is res judicata 
 (a thing adjudicated) in the department. 
 (Armstrong's case, 29 Ct. Cls., 148, 169.) 
 
 255 
 
Sec. 236. 
 
 Pt.2. REVISED STATUTES. 
 
 Treasury Department. 
 
 The allowance of a claim by an auditor under 
 a special act of Congress, followed by payment, 
 can not be set a«ide by his successor. Where 
 one atiditor settles an account, his successors 
 are bound by his decision. (5 Op. Atty. Gen., 
 97.) 
 
 It has repeatedly beoTi held by the Court of 
 Claims and by the Supreme Court that the final 
 decision of a matter by a })ublic officer is bind- 
 ing upon his successtJr, and that the right of an 
 incumbent to review a predecessor's decision 
 extends only to mistakes of fact arising from 
 errors in calculation, and to cases of rejected 
 claims in which material evidence is afterward 
 discovered and produced. (Cotton case, 29 Ct. 
 Cls., 207, 223.) 
 
 The right of a public officer to review a prede- 
 cessor's decisions extends to mistakes in mat- 
 ters of fact arising from errors of calculation, 
 and to cases of rejected claims in which material 
 testimony is afterwards discovered and pro- 
 duced; but if a credit has been given or an al- 
 lowance made by the head of a department, and 
 it is alleged to be an illegal allowance, the judi- 
 cial tribimals of the country must be resorted to 
 to construe the law under which the allowance 
 was made and to settle the rights between the 
 United States and the party to whom the credit 
 was given. It is no longer a case between the 
 correctness of one officer's judgment and that 
 of his successor. A third party is interested, 
 and he can not be deprived of a payment, on a 
 credit so given, but by the intervention of a 
 court to pass upon his right. (U. S. v. Bank of 
 the Metropolis, 15 Pet., 401.) 
 
 It is well settled that the Comptroller has no 
 right to review the decision of his predecessor 
 upon a question of law, whether such decision 
 be correct or erroneous. This principle has been 
 so long recognized and exercised, as evidenced 
 by numerous rulings of the Comptrollers, opin- 
 ions of the Attorneys-General, and decisions of 
 the courts, that citations are scarcely necessary. 
 (20 Comp. Dec, 680, 687. See also 19 Comp. 
 Dec. 110, and authorities there cited; compare 
 4 Comp. Dec, 697.) 
 
 By act of March 4, 1907 (34 Stat., 1356), relat- 
 ing to the payment of back pay and bounty in 
 certain cases, it was provided that thereafter in 
 all such cases, ' ' the said accounting officers shall, 
 in stating balances, follow the decisions of the 
 United States Supreme Court or the Court of 
 Claims of the United States after the time for 
 appeal has expired, if no appeal be taken, with- 
 out regard to former settlements or adjudica- 
 tions by their predecessors." (See Leigh v. 
 U. S. 43 Ct. Cls., 387.) 
 
 (E) Same administration. 
 
 May reopen accounts settled by them- 
 selves. — "It has never been doubted that any 
 public officer in the departments may correct 
 his own errors, and open , reconsider, and reverse, 
 in whole or in part, any case decided by him- 
 self." (Rollins and Presbrey's case, 23 Ct. Cls., 
 123.) [In this cise, the officer's action did not 
 purport to be a final settlement, and the case 
 was treated by him as still pendiiig.] 
 
 The accounting officers have a right to reopen 
 accounts which have been settled by them- 
 selves, to correct errors either of law or fact, 
 but they are not authorized to reopen accounts 
 which had been settled by their predecessors 
 except upon the production of newly discovered 
 material evidence, or to correct mistakes of 
 fact, or for fraud or collusion. (11 Comp. Dec, 
 459; followed 15 Comp. Dec, 584, 97 S. and A. 
 Memo., 1004. But see above, "(C) Mistake of 
 Law.'") [Previously it had been decided by 
 the Comptroller that the accounting officers of 
 the Treasury are not authorized to reopen ac- 
 counts for the purpose of correcting decisions 
 upon questions of law subsequently held to be 
 erroneous; and that to admit such a proposition 
 would bring endless confusion into the settle- 
 ment of accounts and substitute the judgment 
 of one officer for that of another on doubtful 
 questions of law (6 Comp. Dec, 91); and 
 again, that it is an established rule that the 
 accounting officers are not authorized to re- 
 open accounts which have been settled, either 
 by themselves or their predecessors, for the 
 purpose of correcting decisions of law subse- 
 quently held to be erroneous (8 Comp. Dec. 
 24); but that "the Government has authority 
 to withhold money due to an officer of the Navy 
 to whom an erroneous payment has been made, 
 notwithstanding that the payment was found 
 to be erroneous only upon a construction of law 
 made after the settlement of an account in 
 which the payment was allowed; the burden is 
 upon claimant to bring suit therefor and have 
 the question of right determined by the courts. 
 (8 Comp. Dec, 24, citing Wis. Cent. R. R. Co. v. 
 U. S.,164U. S., 190, 211.)] 
 
 IX. Mandamus Proceedings to Compel 
 Payments. 
 
 Mandamus will lie against an auditor 
 
 in the Treasury Department to compel the tak- 
 ing of such steps by him as may be necessary 
 to accomplish the payment to a public officer 
 of the salary of his office as fixed by law, where 
 there is no dispute that the amount of such 
 salary is lawfully due the officer, but its pay- 
 ment has been withheld in accordance with 
 decisions of the Comptroller of the Treasury 
 and contrary to an opinion of the Attorney 
 General, on the ground, that said officer was 
 indebted to the United States, which alleged 
 indebtedness was denied by the officer and had 
 not been adjudicated in any court. (Smith v. 
 Jackson, 241 Fed. Rep., 747; 246 U. S., 388.) 
 
 The courts have no power to issue a 
 writ of mandamus commanding the Secre- 
 tary of the Treasury to withdraw money from 
 the Trea.sury to pay the claim of an individual. 
 The only acts to which the power of the courts 
 by mandamus extends are such as are purely 
 ministerial — that is, which do not require the 
 exercise of judgment or discretion — but when- 
 ever the right of judgment or discretion is left 
 to an officer, he can not be controlled in its 
 exercise by the courts. (U. S. v. Guthrie, 17 
 How., 284.) 
 
 The duties of the accounting officers are not 
 merely ministerial. (20 Comp. Dec, 741.) 
 
 256 
 
Treasury Department. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 237. 
 
 The suggestion that a court can command the 
 withdrawal of a sum of money from the Treasury 
 of the United States, to be applied in satisfac- 
 tion of disputed or controverted claims against 
 the United States, is such that its simple state- 
 ment must carry with it the most startling con- 
 siderations and unavoidable negative; for it 
 would occur, a priori, to every mind that a 
 Treasury not fenced round and shielded by 
 fixed and established modes and rules of ad- 
 ministration but which could be subjected 
 to any number or description of demands, as- 
 sorted and sustained through the undefined and 
 undefinable discretion of courts, would con- 
 stitute a feeble and inadequate provision for 
 the great and inevitable necessities of the 
 Nation. The Government, under such a 
 regime, or rather such an absence of all rule, 
 would, if practicable at all, be administered 
 not by the great departments ordained by the 
 Constitution and laws, and guided by the modes 
 therein prescribed, but by the uncertain, and 
 perhaps contradictory, action of the courts in 
 the enforcement of their views of private in- 
 terest. (U. S. V. Guthrie, 17 How., 303; State 
 of Mississippi v. Durham, 4 Mackey (D. C), 238. 
 See also Kendall i;. U. S., 12 Pet., 524; Decatur 
 V. Paulding,14 Pet., 497, 515; Brashear-y. Mason, 
 6 How., 101.) 
 
 The Department of the Treasury seems fully 
 equipped for the discharge of every fiscal duty 
 and exigency; and therefore, independently of 
 general considerations of abstract policy, the 
 Government would seem to be justified in main- 
 
 taining, in all its integrity, the dogma that it 
 can not by any form of process, base its rights 
 of property subjected to the arbitrament of a 
 judicial tribunal, without its explicit consent 
 in due form of law. (State of Mississippi v. 
 Durham, 4 Mackey (D. C), 237.) 
 
 Mandamus will not lie against an officer of 
 the Treasury Department who refuses to allow 
 and pay a claim against the United States; for, 
 however obviously without legal justification 
 his refusal may be, mandamus against him to 
 compel such allowance is none the less, in 
 effect, a suit against the United States, and it 
 is well settled that no action can be sustained 
 against the Government itself, for any supposed 
 debt, unless by its consent under some special 
 statute allowing it. (State of Mississippi v. 
 Durham, 4 Mackey_ (D. C), 235.) [But in 
 Moser v. Meyer, which was a mandamus pro- 
 ceeding against the Secretary of the Navy, the 
 Court of Appeals of the District of Columbia 
 said : ' ' Nor are we prepared to give the opinion 
 that the Secretary of the Navy, sued with re- 
 spect to a matter Ijing entirely within the 
 duties of his office, is the same defendant as 
 the United States when sued for pay by an 
 ofhcer of the Nav>'.'' 38 App. (D. C), 13, and 
 see Goldberg v. Daniels, 231 U. S., 218, holding 
 that the United States is not a party to manda- 
 mus proceedings against the Secretary of the 
 Navy.] 
 
 For other decisions see note to section 417, 
 Revised Statutes; and see McElrath v. Mcin- 
 tosh (16 Fed. Cas. No. 8781.) 
 
 Sec. 237. [Commencement of fiscal year.] The fiscal year of the Treasury 
 of the United States in all matters of accounts, receipts, expenditures, estimates, 
 and appropriations, except accounts of the Secretary of the Senate for com- 
 pensation and traveling expenses of Senators, and accounts of the Sergeant-at- 
 Arms of the House of Representatives for compensation and mileage of members 
 and delegates shall commence on the first day of July in each year; and all 
 accounts of receipts and expenditures required by law to be published annually 
 shall be prepared and pubhshed for the fiscal year, as thus established. The 
 fiscal year for the adjustment of the accounts of Secretary of the Senate for 
 compensation and traveling expenses of Senators, and of the Sergeant-of-Arms 
 of the House of Representatives for compensation and mileage of members and 
 delegates shall extend to and include the third day of July. 
 
 This section -was amended to read as 
 above by act October 1, 1890 (26 Stat., 646). 
 Originally it provided as follows : 
 
 "Sec. 237. The fiscal year of the Treasury of 
 the United States in all matters of accounts, 
 receipts, expenditures, estimates, and appro- 
 priations, except accounts of the Secretary of 
 the Senate for compensation and traveling 
 expenses of Senators, shall commence on the 
 first day of July in each year; and all accounts 
 of receipts and expenditures required by law 
 to be published annually shall be prepared and 
 published for the fiscal year, as thus established. 
 The fiscal year for thv, adjustment of the ac- 
 
 counts of the Secretary of the Senate for com- 
 pensation and traveling expenses of Senators 
 shall extend to and include tlie third day of 
 July."— (26 Aug., 1842, c. 207, ss. 1, 2, v. 5, p. 
 536; 8 May, 1872, c. 139, s. 1, v. 17, p. 61; 3 
 Mar., 1873, c. 226, s. 1, v. 17, p. 486.) 
 
 Purpose and effect of la-w. — Before the 
 passage of the act of August 26, 1842 (5 Stat. 
 536), afterwards incorporated in section 237, 
 Revised Statutes, the fiscal year commenced 
 with and ended Avith the calendar year; but 
 for the convenience of the public service, in 
 the administration of the expense, accounts, 
 and estimates of the Government, Congress 
 
 257 
 
Sec. 237. 
 
 PL 2. REVISED STATUTES. 
 
 Treasury Department. 
 
 dianged Uie law so as to make the first day of 
 July the commencement of the fiscal year. 
 (Sweet V. U. S., 34 Ct. Cls., 377, 385.) 
 
 This section does not forbid a public officer 
 to demand payment of fees due htm at any 
 time. It merely pro\ides that the fiscal year 
 shall commence on the first day of July, and that 
 the annual accounts shall be for the fiscal year. 
 There is not a word that bears even remotely 
 upon the time when accounts or claims shall 
 become due or when they shall be paid. No 
 payments are hastened and none deferred by 
 this law. It might be claimed with equal 
 propriety that this enactment postpones to the 
 
 end of the fiscal year the liquidation of all 
 claims which have no special day designated 
 for payment. (Patterson v. U. S., 21 Ct. Cls., 
 322.) 
 
 However, where officers are entitled to annual 
 salaries, varying in amount according to the 
 amoirut of business transacted in therr offices 
 during each current year, the maximum com- 
 pensation to which they are entitled is an 
 annual compensation, and is not due until the 
 end of each fiscal year. (Bachelor v. U. S., 
 8 Ct. Cls., 239; Patterson v. U. S., 21 Ct. Cls., 
 324.) 
 
 258 
 
CHAPTER TWO. 
 
 THE SECRETARY OF THE TREASURY. 
 
 Sec. 248. [Forms of keeping and rendering accounts; etc.] The Secretary 
 of the Treasury shall, from time to time, digest and prepare plans for the improve- 
 ment and management of the revenue, and for the support of the public credit ; 
 shall superintend the collection of the revenue; shall, from time to time, pre- 
 scribe the forms of keeping and rendering all public accoimcs and making returns ; 
 shall grant, xmder the limitations herein established, or to be hereafter provided, 
 all warrants for moneys to be issued from the Treasury in pursuance of appro- 
 priations by law; shall make report, and give information to either branch of the 
 legislature m person or in writing, as may be required, respecting all matters re- 
 ferred to him by the Senate or House of Representatives, or which shall apper- 
 tain to his office; and generally shall perform all such services relative to the 
 finances as he shall be directed to perform. [See §§ 3660-3665, 3669, 3670, 
 3672.]— (2 Sept., 1789, c. 12, s. 2, v. 1, p. 65; 8 May, 1792, c. 37, s. 9, v. 1, p. 281 ; 
 3 Mar., 1849, c. 108, s. 3, v. 9, p. 395, 20 June, 1874, c. 344, v, 18, p. 127; Ex 
 parte Hennen, 13 Pet., 230; Neilson v. Lagow, 12 How., 98, (107).) 
 
 This section was amended by act of July 
 31, 1894, section 5 (28 Stat., 206), which pro- 
 vides that "The Comptroller of the Treasury 
 shall, under the direction of the Secretary of 
 the Treasury, prescribe the forms of keeping 
 and rendering all public accounts, except those 
 relating to the postal revenues and expendi- 
 tures therefrom." 
 
 In the expenditure of all public moneys 
 it is the invariable rule to require that accounts 
 shall be furnished itemized as far as practicable, 
 in order that the accounting officers may prop- 
 erly audit them. * * * The law may per- 
 mit the exercise ot discretion in the use of public 
 funds, without dispensing with the usual re- 
 quirement of an itemized account showing fully 
 for what purposes the money has been expended . 
 (4 Comp. Dec, 159; 4 Comp. Dec, 271.) 
 
 The Comptroller of the Treasury has no 
 
 jurisdiction to approve or disapprove forms 
 which are not accounting forms; as, for exam- 
 ple, forms issued by the Secretary of the Navy 
 for the use of the naval service in designating 
 beneficiaries to receive death gratuity under the 
 act May 13, 1908 (35 Stat., 128). (Comp. Dec, 
 June 8, 1908, file 26254-44.) 
 
 The Secretary of the Treasury may im- 
 press his name with a stamp or copperplate 
 upon a document, provided he keep the stamp 
 or copperplate in his own possession and apply 
 it himself or cause it to be appUed in his pres- 
 ence; and this is a sufficient signing in law 
 where a statute requires that certain documents 
 be signed by him. The word "signing" does 
 not necessarily imply, in legal acceptation at 
 least, the use of pen and ink, held and guided 
 by the hand of the person himself. (1 Op. 
 Atty. Gen., 670.) 
 
 Sec. 250. [Settlement of accounts within fiscal year. Repealed.] 
 
 This section provided as foUows: 
 
 "Sec. 250. The Secretary of the Treasury 
 shall cause all accounts of the expenditure of 
 public money to be settled within each fiscal 
 year, except where the distance of the places 
 where such expenditure occurs may be such as 
 to make further time necessary; and in respect 
 
 to expenditures at such places, the Secretary 
 of the Treasury, with the assent of the President, 
 shall establish fixed periods at which a settle- 
 ment shall be required." — (3 Mar., 1817, c 45, 
 8. 13, V. 3, p. 368.) 
 
 It was superseded and repealed by act 
 July 31, 1894, section 12 (28 Stat., 209). 
 
 Sec. 251. [Rules, regulations, and forms.] The Secretary of the Treasury 
 shall make and issue from time to time such instructions and regulations to 
 the several collectors, receivers, depositaries, officers, and others who may 
 receive Treasury notes. United States notes, or other securities of the United 
 
 259 
 
Sec. 251. 
 
 Pt.2. REVISED STATUTES. 
 
 Treasury Department. 
 
 States, or who may be in any way engaged or employed in the preparation 
 and issue of the same, as he shall deem best calculated to promote the public 
 convenience and security, and to protect the United States, as well as individ- 
 uals, from fraud and loss; he shall prescribe forms of entries, oaths, bonds, and 
 other papers, and rules and regulations, not inconsistent with law, to be used 
 under and in the execution and enforcement of the various provisions of the 
 internal-revenue laws, or in carrying out the provisions of law relating to rais- 
 ing revenue from imports, or to duties on imports, or to warehousing; he shall 
 give such directions to collectors and prescribe such rules and forms to be ob- 
 served by them as may be necessary for the proper execution of the law; he 
 shall also prescribe the forms of the annual statements to be submitted to Con- 
 gress by him. showing the actual state of commerce and navigation between 
 the United States and foreign countries, or coastwise between the collection 
 districts of the United States, in each year. — (10 Feb., 1820, c. 11, ss. 14, 15, 
 V. 3, p. 548; 6 Aug. 1846, c. 84, s. 5, v. 9, p. 55; 30 June, 1864, c. 172, s. 8, 
 v. 13, p. 221; 14 July, 1870, c. 255, s. 34, v. 16, p. 271; 14 May, 1856, Res. 9, 
 V. 11, p. 144; Lennig v. Maxwell, 3 Blatch., 125; Munsell v. Maxwell, 3 
 Blatch., 364.) 
 
 On general subject of regulations, see section 
 161, Revised Statutes, and note thereto. 
 
 As to forms of keeping and rendering accounts, 
 see section 248, Revised Statutes, and note 
 thereto. 
 
 Persons connected with the Navy are forbidden 
 to import in a public vessel any article 
 which is liable to the payment of duty. 
 (Sec. 1624, R. S., art. 12.) 
 
 Punishment by general coiu-t-martial is pro- 
 vided for transporting on naval vessels any 
 goods or merchandise for freight, sale, or 
 traffic, except gold, silver, or jewels for 
 freight or safekeeping. (Sec. 1624, R. S., 
 art. 8, clause 13.) 
 
 The Naval Instructions, 1913, contain 
 the f ollo'wlng rules relative to customs in- 
 spections of naval vessels: 
 
 " 1321. (1) When any sliip under the control 
 of the Navy Department arrives within the 
 territory of the United States, after having 
 visited a foreign port or ports, the command- 
 ing officer thereof or, in the case of a number 
 of ships in company, the senior officer present, 
 shall inform the collector of such United States 
 port of the arrival of tlae said ship or ships, and 
 shall hold such ship or ships subject to such 
 customs inspection as the collector of the port 
 shall be directed to make by the Treasury De- 
 partment. Commanding officers shall see that 
 no dutiable articles are landed until after such 
 action has been taken by the collector of the 
 port. If the first port visited be not a port of 
 entry, the provisions of this order shall be com- 
 plied with at the first i:)ort of entry visited 
 thereafter. 
 
 "(2) The commanding officer of each such 
 ship shall cause each person on board who has 
 purchased or othervvise acquired articles abroad 
 which he intends to land from the ship to 
 furnish a list of such articles and the prices 
 paid therefor, separately stating articles of wear- 
 
 ing apparel and similar personal effects intended 
 for then- personal use and articles intended for 
 others. AH such articles shall be conveniently 
 packed, ready for examination by the customs 
 officials upon arrival. 
 
 "(3) The Secretary of the Treasury has in- 
 structed the customs officers to examine and 
 appraise such articles and to collect the duties 
 accruing thereon, after allo^ving the one hun- 
 dred dollars exemption upon wearing apparel 
 and similar personal effects intended for per- 
 sonal use. No customs examination of baggage 
 other than that so listed and presented for ex- 
 amination will be made. 
 
 ' ' (4) The provisions of this article shall not 
 be construed to delay the movements of any 
 naval vessel engaged in the performance of her 
 duty." 
 
 Treasury Regulations, scope and effect 
 of. — Where a statute is silent in matters of de- 
 tail, the Secretary of the Treasury is doubtless 
 vested with a certain discretion under the power 
 given him by this section to make rules and 
 regulations not inconsistent with law for carry- 
 ing out the provisions of law relating to raising 
 revenue from imports. In construing regula- 
 tions so adopted, it must be borne in mind that 
 the Secretary of the Treasury is an officer of 
 the Government; that his powers are limited 
 by law; that his duty is to protect the revenues 
 of the Government and to prevent smuggling 
 or other illegal practices whereby the Govern- 
 ment may be defrauded of its revenue; and 
 that he owes no duty to individuals beyond 
 seeing that their rights are not prejudiced any 
 further than is necessary by the action of cus- 
 toms officers. (Constable v. National Steam- 
 sliip Co., 154 U. S., 75, 76.) 
 
 The contention that under the guise of regu- 
 lations the Secretary of the Treasury has as- 
 sumed legislative power confided by the Con- 
 stitution solely to Congress, does not constitute 
 a real and substantial dispute or controversy 
 concerning the construction or application of 
 
 260 
 
Treasury Department. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 260. 
 
 the Constitution, so as to authorize a direct 
 appeal to the Supreme Court of the United 
 States from a decision of the Circuit Court of 
 Appeals. (American Sugar Refining Co. v. 
 U. S., 211 U. S., 161.) 
 
 Wliere regulations of the Treasury Depart- 
 ment are such as are warranted by, and not in- 
 consistent with, the law, they have the effect 
 of law. (Von Cotzhausen v. Nazro, 15 Fed. 
 Rep., 897.) 
 
 However extensive may be the general 
 powers of the Secretary of the Treasury under 
 this and other sections, they can not authorize 
 any acts in conflict ^vith the particular provi- 
 sions of the law. (U. S.i;.Leng,18Fed.Rep.,21.) 
 
 A regulation and circular which the Secre- 
 tary of the Treasury was authorized to make 
 and issue under this section, not being incon- 
 sistent with any pro\dsion of law, objections to 
 their admission in evidence (their authentica- 
 tion being conceded) are unsound. (U. S. v. 
 Brendel, 136 Fed. Rep., 740.) 
 
 Wliere regulations promulgated by the Sec- 
 retary of the Treasury under this section are 
 substantially followed by Government officers, 
 the findings by those officers are conclusive. 
 (U. S. V. Lueder, 154 Fed. Rep., 1.) 
 
 Congress may enact a law and delegate the 
 power of finding some fact or state of things 
 upon which the operation of the law is made 
 to depend . Where Congress instead of includ- 
 ing in a statute a matter of detail, left the de- 
 termination of the fact to the Secretary of the 
 Treasury, a regulation of the Secretary of the 
 
 Treasury pursuant thereto, determining the 
 act, is as conclusive as if the standard fixed by 
 the regulation had been named in the law it- 
 self. If in fixing the standard, the Secretary 
 of the Treasury does not legislate by amending 
 the law or altering it, nor act judicially by 
 deciding a fact which was one which, in its 
 intrinsic nature, required judicial determina- 
 tion, it is difficult to see, in the absence of fraud 
 or bad faith, upon what theory a fact which 
 Congress has submitted to his determination 
 can be subject to review. (Cooperville, etc., 
 Co. V. Lemon, 163 Fed. Rep., 145, decided by 
 Circuit Court of Appeals for the Sixth Circuit.) 
 [The Circuit Court of Appeals for the Eighth 
 Circuit reached a directly opposite conclusion 
 as to tlie validity of the particular regulation 
 which was sustained in this case, holding that 
 the legal effect of said regulation was to modify, 
 radically, an act of Congress, and to bring under 
 its penal provisions property and persons ex- 
 pressly excluded therefrom by the terms of the 
 law, and therefore that the regulation was void, 
 as the Secretary of the Treasury has no authority 
 thus to create and punish crimes. (U. S. v. 
 Butter (Milton Dairy Co., Claimant) 195 Fed. 
 Rep., 657.)] 
 
 Regulations issued by the Secretary of the 
 Treasury with reference to the internal revenue 
 and for the government of the officers of the 
 Revenue Department, have the force and effect 
 of law and are as binding as if incori^orated in 
 the statute law of the United States. (Stegall 
 V. Thurman, 175 Fed. Rep., 813.) 
 
 Sec. 255. [Appointment of disbursing agents.] The Secretary of the 
 Treasury may designate any officer of the United States, who has given bonds 
 for the faithful performance of his duties, to be disbursing agent for the pay- 
 ment of all moneys appropriated for the construction of pubUc buildings 
 authorized by law within the district of such officer. — (3 Mar., 1869, c. 122, s. 1, 
 V. 15, pp. 301, 306.) 
 
 Employment of special disbursing agents by the 
 Secretary of the Navy: See section 3614, 
 Revised Statutes. 
 The Secretary of the Treasury can not 
 designate an officer in the city of Washing- 
 ton to be a disburshxg agent in another place 
 under this section; because, not being attached 
 to any district, the buildings for which his dis- 
 l)ursements would be made would not be 
 within his district; nor can a special disbursing 
 agent be designated at a place where there is a 
 collector of customs, in view of the provisions 
 of section 3658, Revised Statutes (Bartlett v. 
 U. S., 25 Ct. Cls., 389; affirmed 197 U. S., 230.) 
 
 This law is general and without limita- 
 tion as to place. It applies to "all moneys 
 appropriated for the construction of public 
 buildings authorized by law, within the district 
 of such officer." (19 Op. Atty. Gen., 393.) 
 
 Additional pay prohibited. — An officer of 
 the United States designated as disbursing 
 agent within his district under this section, 
 would not be entitled to any additional pay, 
 because of the provisions of sections 1764, 1765, 
 Revised Statutes. (Bartlett v. U. S., 197 
 U. S., 234.) 
 
 Sec. 260. [Reports upon appropriations for Departments of War and Navy.] 
 The Secretary of the Treasury shall lay before Congress at the commencement 
 of each regular session, accompanyuig his annual statement of the public 
 expenditure, the reports which may be made to him by the Auditors charged 
 with the examination of the accounts of the Department of War and the Depart- 
 
 261 
 
Sec. 266. 
 
 Pt.2. REVISED STATUTES. 
 
 Treasury Department. 
 
 ment of the Navy, respectively, showing the application of the money appro- 
 priated for those Departments for the preceding year. — (3 Mar., 1817, c. 45, 
 s. 6, V. 3, p. 367.) 
 
 By act of June 19, 1878 (20 Stat., 167) it was 
 provided: "That from and after the pas- 
 sage of this act, it shall be the duty of the 
 Secretary of the Treasury to transmit to 
 Congress annually a tabular statement 
 showing in detail the receipts and expendi- 
 tures in the naval service under each ap- 
 propriation, as made up and determined 
 
 by the proper officers of the Treasury De- 
 partment, upon the accounts of disbursing 
 officers renclered for settlement. Sec. 2. 
 There shall be appended to this statement 
 an account of balances in the hands of 
 disbursing agents at the close of each fiscal 
 year, and a report of any amounts lost or 
 unaccounted for by vouchers." 
 
 Sec. 264. [Report of Coast Survey expenditures.] The Secretary of the 
 Treasury shall report to Congress annually the number and names of the per- 
 sons employed during the last preceding fiscal year upon the Coast Survey 
 and business connected therewith; the amomit of compensation of every 
 kind respectively paid them, for what purpose, and the length of time 
 employed; and shall report a full statement of all other expenditures made 
 under the direction of the Superintendent of the Coast Survey. — (3 Mar., 1853, 
 c. 97, s. 3, V. 10, p. 209; 15 Aug., 1876, c. 287, v. 19, f. 156.) 
 
 The Coast and Geodetic Survey was transferred 
 from the Treasury Department to the 
 Department of Commerce and Labor by 
 acts of February 14, 1903 (32 Stat., 826), 
 and March 3, 1903 (32 Stat. 1082). The 
 name of the Department of Commerce and 
 Labor was changed to Department of Com- 
 merce by act of March 4, 1913 (37 Stat., 
 736) . Transfer to the War or N avy Depart- 
 ment, in time of national emergency, of 
 the Coast and Geodetic Survey, was author- 
 ized by act of May 22, 1917 (40 Stat., 87). 
 
 The President was authorized to employ public 
 vessels in Coast Survey by section 4686, 
 Revised Statutes. 
 
 Employment of Navy officers in Coast Survey 
 was provided for by sections 4684 and 4687, 
 Revised Statutes. 
 
 Employment of enUsted men of the Navy in the 
 Coast Survey was authorized by annual ap- 
 propriations under " Pay of the Navy " prior 
 to act of June 7, 1900 (31 Stat., 684). See 
 Comp. Dec, Oct. 27, 1910 (116 S. and A. 
 Memo., 1595); and file 3809-434, Nov. 17, 
 1914. 
 
 Officers of the Navy are entitled to sea pay 
 while attached to and serving on board 
 any ship in commission under the control 
 of the Coast Survey. (Art. R-4405 (1), 
 Navy Regs., 1913.) 
 
 Officers of the Navy ordered to report by letter 
 to the Secretary of Commerce for duty in 
 
 the Coast Survey, are entitled to shore 
 pay from the dale they so report. (Art. 
 R-4407 (4), Navy Regs., 1913.) 
 
 Members of the Naval Hospital Corps were re- 
 quired to perform all necessary hospital 
 and ambulance service in vessels of the 
 Coast Survey by act of June 17, 1898 (30 
 Stat., 475), superseded by other provisions 
 contained in the act of August 29, 1916 (39 
 Stat., 573); see also art. 1-3261, Naval In- 
 structions, 1913. 
 
 Extra allowance for subsistence of officers and 
 men of the Navy employed in Coast Sur- 
 vey was authorized by section 4688, Re- 
 vised Statutes, which was amended by 
 acts of August 4, 1886 (24 Stat., 233), and 
 March 3, 1887 (24 Stat., 521), prohibiting 
 allowance for subsistence to Navy officers 
 attached to Coast and Geodetic Survey. 
 Further amendment was contained in 
 acts of March 2, 1889 (25 Stat., 952), and 
 August 30, 1890 (26 Stat. 382). authorizing 
 allowance for subsistence to detailed Navy 
 officers, detached to do work away from 
 their vessels under circumstances involving 
 extra expenditures. 
 
 Annual reports w^ere required of Coast Survey 
 by section 4690, Revised Statutes; pro- 
 visions for printing and distribution of 
 repoi'ts were contained in acts of January 
 12, 1895 (28 Stat., 613), and April 20, 1896 
 (29 Stat., 471). 
 
 Sec. 266. [Quarterly publication of receipts and expenditures.] The Secre- 
 tary of the Treasury, at the expiration of tliirty days from the end of each 
 quarter, shall cause to be pubhshed in some newspaper at the seat of govern- 
 ment a statement of the whole receipts of such quarter, specifying the amount 
 received from customs, from pubhc lands, and from miscellaneous sources, 
 and, also, the whole amount of payments made during the said quarter, speci- 
 fymg the general head of appropriation, whether for the civil list, the Army, 
 the Navy, Indian Affairs, fortifications, or pensions. — (17 June, 1844, c. 105, 
 s. 6, V. 5, p. 696.) 
 
 262 
 
CHAPTER THREE. 
 
 THE COMPTROLLERS. 
 
 [Foe Laws in Effect March 4, 1921, with Reference to the Powers aito Duties of the Compteollee of the 
 Treasxiry and the Auditor for the Navy Department, see Act of July 31, 1894 (28 Stat., 205). Section 9 of 
 SAID Act (28 Stat., 208) Provided That "This Act, in so far as it Relates to the First Comptroller of the 
 Treasury and the Several Auditors and Deputy Auditors of the Treasury, shall be Held and Construed 
 TO Operate Merely as Changing Their Designation and as Adding to and Modifying Their Duties and 
 Powers, and not as Creating New Officers."] 
 
 Sec. 268. [Comptrollers.] There shall be in the Department of the Treasury 
 a Fu"st Comptroller and a Second Comptroller, each of whom shall be appomted 
 by the Presidetit, by and with the advice and consent of the Senate, and shall 
 be entitled to a salary of five thousand dollars a year. — (2 Sept., 1789j c. 12, 
 s. l,v. l,p. 65; 3 Mar., 1817, c. 45, s. 3, v. 3, p. 366; 18 May, 1872, c. 172, s. 1, 
 V. 17, p. 127; 3 Mar., 1875, c. 130, s. 2, v. 18, p. 396.) 
 
 For modification of this section see act of July 
 31, 1894, section 4 (28 Stat., 206), which 
 abolished the office of Second Comptroller 
 
 and changed the designation of the First 
 Comptroller to Comptroller of the Treasury. 
 
 Sec. 269. [Duties of First Comptroller. Repealed.] 
 
 This section provided as follows: 
 
 "Sec. 269. It shall be the duty of the First 
 Comptroller: 
 
 "First. To examine all accounts settled by 
 the First Auditor, except those relating to re- 
 ceipts from customs, and all accounts settled by 
 the Fifth Auditor, and by the Commissioner of 
 the General Land-Office, and to certify the 
 balances arising thereon to the Register. 
 
 ' ' Second . To superintend the ad j ustment and 
 preservation of the pubUc accounts subject to 
 his revision. 
 
 "Third. To countersign all warrants drawn 
 by the Secretary of the Treasury, which shall 
 be warranted by law. 
 
 "Fourth. To superintend the recovery of all 
 debts certified by him to be due to the United 
 States, and for that purpose to direct all such 
 suits and legal proceedings, and to take such 
 measures as may be authorized by law, and are 
 adapf^ed to enforce prompt payment thereof." 
 [See § 1660.]— (2 Sept., 1789, c. 12, s. 3, v. 1, 
 p. 66; 3 Mar., 1817, c. 45, ss. 8, 10, v. 3, p. 367; 
 3 Mar., 1849, c. 108, s. 12, v. 9, p. 396; Neilson 
 V. Lagow, 12 How., 98.) 
 
 It wa^ expressly repealed by act of July 
 31, 1894, section 11 (28 Stat., 209); the designa- 
 tion of the First Comptroller was changed to 
 Comptroller of the Treasury by section 4 of the 
 same act (28 Stat., 206). 
 
 Sec. 271. [Power to direct settlement of accounts. Superseded.] 
 
 This section provided as foUows: 
 
 "Sec. 271. The First Comptroller, in every 
 case where, in his opinion, further delays would 
 be injurious to the United States, shall direct 
 the First and Fifth Auditors of the Treasury 
 forthwith to audit and settle any particular ac- 
 count which such officers may be authorized to 
 audit and settle, and to report such settlement 
 
 by 
 
 28, 
 
 the First 
 
 s. 2, v. 2, 
 
 for revision and final decision 
 Comptroller."— (3 Mar., 1809, c. 
 p. 536.) 
 
 It was superseded by act of July 31, 1894, 
 section 6 (28 Stat., 206), which authorized the 
 Comptroller of the Treasury to direct any of the 
 Auditors to audit and settle any particular ac- 
 count. 
 
 Sec. 272. [Report of officers failing to make settlement. Repealed.] 
 
 This section provided as foUows: 
 
 "Sec. 272. The First Comptroller shall make 
 an annual report to Congress of such officers as 
 shall have failed to make settlement of their 
 accounts for the preceding fiscal year, within 
 the year, or within such further time as may 
 have been prescribed by the Secretary of the 
 Treasury for such settlement." [See §§ 195, 
 196.]— (3 Mar., 1817, c. 45, e. 13, v. 3, p. 368.) 
 
 It was expressly repealed by act of July 
 31, 1894, section 12 (28 Stat., 209). Provision 
 for annual report to Congress by the Secretary 
 of the Treasury, of officers delinquent in render- 
 ing accounts, is contained in act of May 28, 
 1896, section 4 (29 Stat., 179). 
 
 263 
 
Sec. 278. 
 
 Pt.2. RE VISED STAT UTES . 
 
 Treasury Department. 
 
 Sec. 273. [Duties of Second Comptroller. Repealed.] 
 
 This section provided as follows: 
 
 "Sec. 273. It shall be the duty of the Second 
 Comptroller: 
 
 "First. To examine all accounts settled by 
 the Second, Third, and Fourth Auditors, and 
 certify the balances arising thereon to the Secre- 
 tary of the Department in which the expendi- 
 ture has been incurred. 
 
 "Second. To countersign all warrants drawn 
 by the Secretaries of War and of the Navy, which 
 shall be warranted by law. [See § 3673.] 
 
 "Third. To report to the Secretaries of War 
 and of the Navv the official forms to be issued 
 
 in the different offices for disbursing the pub- 
 lic money in those Departments, and the man- 
 ner and form of keeping and stating the ac- 
 counts of the persons employed therein. 
 
 "Fourth. To superintend the preservation of 
 the public accounts subject to his revision." — 
 (3 Mar., 1817, c. 45, s. 9, v. 3, p. 367; 7 May, 
 1822, c. 90, s. 3, v. 3, p. 689.) 
 
 It was expressly repealed by act of July 
 31, 1894, section 7 (28 Stat., 206). 
 
 Sec. 274. [Arrears of pay due deceased seamen.] The Second Comptroller 
 may prescribe rules to govern the payment of arrears of pay due to any petty 
 officer, seaman, or other person not an officer, on board any vessel in the employ 
 of the United States, which has been sunk or destroyed, in case of the death 
 of such petty officer, seaman, or person, to the person designated by law to 
 receive the same.— (4 July, 1864, c. 248, s. 3, v. 13, p. 390.) 
 
 The duties of the Second Comptroller were 
 transferred to the Comptroller of the Treas- 
 ury bv act of July 31, 1894, section 4 (28 
 Stat, 205). 
 
 The manner of settling accounts of deceased 
 officers and enlisted men in the Navy 
 where the amount due is less than $500, 
 is provided for by act of May 27, 1908 (35 
 Stat., 373). 
 
 Disposition of pensions and other moneys due 
 deceased beneficiaries of Naval Home is 
 provided for by act of June 30, 1914 (38 
 Stat., 398). 
 
 Payment of pension money in case of death of 
 pensioners in Government Hospital for the 
 
 Insane is provided for by section 4839. 
 Revised Statutes, as amended by act of 
 February 2, 1909 (35 Stat., 592). 
 
 Payment in case of death of persons in the 
 Navy, entitled to reimbursement for 
 losses at sea, was provided for by section 
 289, Revised Statutes, repealed by act of 
 October 6, 1917 (40 Stat., 390). 
 
 Disposition of money and other effects of 
 deceased persons in the naval service is 
 regulated by act of March 29, 1918 (40 
 Stat., 499). 
 
 Sec. 275. [Signing bounty certificates. Repealed.] 
 
 This section provided as follows: 
 
 "Sec. 275. The Second Comptroller may de- 
 tail one clerk to sign, in the place of the Comp- 
 troller, all certificates and papers issued under 
 any provisions of law relating to bounties; but 
 
 the Comptroller shall be responsible for the 
 official acts of such clerk." — (19 Mar., 1868, c. 
 31, s. 4, V. 15, p. 44.) 
 
 It was expressly repealed by act of July 
 31, 1894, section 7 (28 Stat., 206). 
 
 264 
 
CHAPTER FOUR. 
 
 THE AUDITORS. 
 
 [For Laws in Effect March 4, 1921, with Reference to the Powers and Duties of the Comptroller of the 
 Treasury and Auditor for the Navy Department, See Act of July 31, 1894 (28 Stat., 205). Section 9 of Said 
 Act (28 Stat., 208) Provided that "This Act, in so far as it Relates to the First Comptroller of the 
 Treasury and the Several Auditors and Deputy Auditors of the Treasury, shall be held and Construed 
 TO Operate Merely as Changing Their Designation and as Adding to and Modifying Their Duties and 
 Powers, and not as Creating New Officers. All Laws not Inconsistent with this Act, Relating to the 
 Auditors of the Treasury in Connection with any Matter, shall be Understood in Each Case to Relate 
 TO the Auditor to Whom this Act Assigns the Business of the Executive Department or Other Estab- 
 lishment Concerned in that Matter."] 
 
 Sec. 276. [Auditors.] There shall be connected with the Department of 
 the Treasury six auditors of accounts, who shall be appointed by the President, 
 by and with the advice and consent of the Senate, and shall be known as the 
 First, Second, Third, Fourth, Fifth, and Sixth Auditors, respectively. Each 
 Auditor is entitled to a salary of four thousand dollars a year. — (2 Sept., 1789, 
 c. 12, s. 1, V. 1, p. 65; 3 Mar., 1817, c. 45, ss. 3, 15, v. 3, pp. 366, 368; 2 July, 
 1836, c. 270, s. 8, v. 5, p. 81; Ibid., s. 44, p. 89; 8 June, 1872, c. 335, s. 21, v. 
 17, p. 287; 2 Mar., 1799, c. 38, s. 1, v. 1, p. 729; 3 Mar., 1873, c. 226, s. 3, v. 
 17, p. 508; 3 Mar., 1875, c. 130, s. 2, v. 18, i^ 397.) 
 
 The designation of the Auditors was altered by 
 act of July 31, 1894, section 3 (28 Stat., 205), 
 
 'Fourth Au- 
 
 which changed the title of 
 
 ditor" to "Auditor for the Navy Depart- 
 ment." 
 
 Sec. 277. [Duties of Auditors.] The duties of the auditors shall be as 
 folio w"s : 
 
 ******* 
 
 Fifth. The Fourth Auditor shall receive and examine all accounts accruing 
 in the Navy Department or relative thereto, and all accounts relating to Navy 
 pensions; and, after examination of such accounts, he shaU certify the balances, 
 and shall transmit such accounts, with the vouchers and certificate, to the 
 Second Comptroller for his decision thereon. 
 
 * 
 
 * 
 
 The duties of the Auditor for the Navy Depart- 
 ment, designated in the above section as 
 Fourth Auditor, are prescribed by act of 
 July 31, 1894, section 7 (28 Stat. , 207). The 
 
 duties of the Second Comptroller were 
 transferred to the Comptroller of the Treas- 
 ury by section 4 of the same act (28 Stat., 
 205). 
 
 Sec. 283. [Accounts of Departments of War and the Navy.] The Auditors 
 charged with the examination of the accounts of the Departments of War and of 
 the Navy, shall keep all accounts of the receipts and expenditures of the public 
 money in regard to those Departments, and of all debts due to the United 
 States on moneys advanced relative to those Departments; shall receive from 
 the Second Comptroller the accounts which shall have been finally adjusted, 
 and shall preserve such accounts, with their vouchers and certificates, and 
 record all requisitions drawn by the Secretaries of those Departments, the 
 examination of the accounts of which has been assigned to them. They shall 
 
 265 
 
Sec. 285. 
 
 Pt. 2. REVISED STATUTES. 
 
 Treasury Department. 
 
 aimually, on the first Monday in November, severally report to the Secretary of 
 the Treasury the apphcation of the money appropriated for the Department of 
 War and the Department of the Navy, and they shall make such reports on 
 the business assigned to them as the Secretaries of those Departments may 
 deem necessary and require. — (3 Mar., 1817, c. 45, ss. 5, 6, v. 3, p. 3G7.) 
 
 in the Division of Bookkeeping and War" 
 rants of the Treasury Department. 
 The office of Second Comptroller was abolished 
 and his duties transferred to the Comp- 
 troller of the Treasury by section 4, act of 
 July 31, 1894 (28 Stat., 205). 
 
 So much of this section as requii'es accounts to 
 be kept by certain auditors was repealed 
 by act of July 31, 1894, section 10 (28 Stat., 
 208), which provides that all accounts of 
 receipts and expenditures of public money, 
 except those relating to the postal revenues 
 and expenditures therefrom, shall be kept 
 
 Sec. 284. [Accounts of pay officer of lost vessel.] In every case of the loss 
 
 or capture of a vessel belonging to the Navy of the United States, the proper 
 
 accounting officers of the Treasury, under the direction of the Secretary of the 
 
 Navy, are authorized, in the settlement of the accounts of the [paymaster] 
 
 [purser] of such vessel, to credit him with such portion of the amount of the 
 
 provisions, clothing, small stores, and money, with which he stands charged 
 
 on the books of the Fourth Auditor of the Treasury, as they shall be satisfied 
 
 was inevitably lost by such capture or loss of a public vessel ; and such purser 
 
 shall be fully exonerated by such credit from all liability on account of the 
 
 provisions, clothing, small stores, and money so proved to have been captured 
 
 or lost.— (3 Mar., 1847, c. 48, s. 6, v. 9, p. 173 ; 18 Feb., 1875, c. 80, v. 18, p. 317.) 
 
 See note to section 287, Revised Statutes. 
 
 The title "Fourth Auditor of the Treasury" 
 was changed to "Auditor for the Navy De- 
 partment" by act of July 31, 1894, section 3 
 (28 Stat., 205). 
 
 By the Judicial Code, March 3, 1911 , sections 
 145, 147 (36 Stat., 1136, 1137), it is provided 
 that the Court of Claims shall have juris- 
 diction to relieve any disbursing officer of 
 responsibility on account of loss, by cap- 
 ture or otherwise while in the Line of his 
 duty, of Government funds, vouchers, 
 records or papers in his charge, where such 
 loss occurred without fault or negligence on 
 the part of the officer, but he has been held 
 
 responsible therefor. ["Capture or other- 
 wise " means not only loss by capture and 
 kindred ways, under the rule of ejusdem 
 generis, but loss occurring in any other way 
 while the officer was in line of duty and 
 free from fault. (Stevens v. U. S., 41 Ct. 
 Cls.,344.)] 
 'In case of fire or shipwreck, it shall be the 
 special duty of every officer of the Pay 
 Cor])s to secure and preserve the accounts 
 of officers and men, the public money, and 
 such other public papers and property, in 
 the order of their value, as circumstances 
 permit." (Art. R-3004 (1), Navy Regs., 
 1913.) 
 
 Sec. 285. [Disbursements by order of commanding officer.] Every disburse- 
 ment of public moneys, or disposal of public stores, made by a disbursing officer 
 pursuant to an order of any commanding officer of the Navy, shall be allowed 
 by the proper accounting officers of the Treasury, in the settlement of the 
 accounts of the officer, upon satisfactory evidence of the making of such order, 
 and of the payment of money or disposal of stores in conformity with it; and 
 the commanding officer by whose order such disbursement or disposal was 
 made, shall be held accountable for the same. — (3 Mar., 1849, Res. No. 17, s. 
 2, V. 19, p. 419. [This reference is in error in the Revised Statutes. Should 
 be ''v. 9, p. 419."]) 
 
 Order of Secretary of the Navy. — An 
 order by the Secretary of the Navy to an officer 
 has been held to be within this section: If 
 money is disbursed by an officer of the N avy in 
 faithful compliance with the Secretary's order, 
 under this law the Secretary and not the officer 
 must account and answer to the United States. 
 (Opinion of Dunlop, Cii'cuit Judge, in U. S. v. 
 Jones, 26 Fed. Cas. No. 15493a, p. 653.) [In this 
 
 case, on appeal to the Supreme Court, it was ar- 
 gued by the Attorney General that this law 
 applies only to disbursements made "in pur- 
 suance of an order from an officer in command." 
 For the defendant, it was argued that this law 
 "requires the disbursement to be allowed and 
 the commanding officer to be held responsible. 
 In this case it would be the President." The 
 Supreme Court affirmed the judgment of the 
 
 266 
 
Treasury Department. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 285. 
 
 Circuit Court, which was for the defendant, 
 without referring to this statute. (U. S. v. 
 Jones, 18 How., 92.) Accordingly, the case 
 must be deemed an authority for the proposi- 
 tion that the order of the Secretary of the Navy 
 was the order of defendant's "commanding offi- 
 cer of the Navy " within the meaning of section 
 285, Revised Statutes. (File 26254-1451 : 11, Apr. 
 12, 1915, citing Swaim v. U. S., 165 U. S., 557; 
 Op. Atty. Gen., May 19, 1915, 171 S. and A. 
 Memo., 3611.] 
 
 Regulations adopted under this sec- 
 tion. — This section does not authorize an ad- 
 vance of public money by the pay officer to the 
 commanding officer or to any other person by 
 his order. The disbursement presupposes an 
 indebtedness, and whether the objects for which 
 the indebtedness accrued were sanctioned or 
 not by law or regulation, the pay officer would 
 be entitled to a credit for payment therefor, 
 when made by order of the commanding officer; 
 but the disbursement must be for some service 
 or article furnished in accordance with law. 
 (Art. R-4310 (2), Navy Regs., 1913.) 
 
 When ordered by his commanding officer to 
 make an expenditure of money or stores which 
 the pay officer believes to be illegal or contrary 
 to regulations, the latter shall state in writing 
 the grounds on which he objects to obejdng the 
 order, and request that the order be reiterated 
 in writing. On receipt of such order, the ex- 
 penditure shall be made. (Art. R-4309, Navy 
 Regs., 1913.) 
 
 The commanding officer will be held account- 
 able by the Navy Department for every expen- 
 diture of funds or property made by his author- 
 ity; but in order to charge a commanding offi- 
 cer with pecuniary responsibility for a payment 
 made by his order, it is necessary that there 
 should be a compliance with the preceding par- 
 agraph, for in the absence of such written order 
 from the commanding officer, after a statement 
 of objections has been duly made, the pay 
 officer and not the commanding officer will be 
 held responsible. (Art. R-4310 (3) Navy Regs., 
 1913.) 
 
 Regulations must be complied with. — In 
 order to charge a commanding officer of the 
 Navy with a payment made by his order under 
 this section, it is necessary that there should 
 be a compliance with the Navy regulation 
 as to an order in writing. This requirement 
 is eminentlv proper and fair. (8 Comp. Dec, 
 756; 1 S. and A. Memo., June 1, 1902, p. 28.) 
 
 Neither the regulation nor the Comptroller's 
 ruling alters fundamentally the scope of this 
 section. The regulation relates merely to the 
 responsibility of the commanding officer, and 
 has nothing to do with the position of the 'pay- 
 ing officer; it also presupposes a belief on the 
 part of the latter that the expenditure is illegal; 
 it does not apply to any case in which the pay 
 officer, in good faith, renders his obedience. 
 (30 Op. Attv. Gen., 376, 171 S. and A. Memo., 
 3611.) 
 
 A pay officer making a payment assumes re- 
 sponsibility for its acciu'acy. Therefore, in 
 withholding payment until the receipt of full 
 information necessary to a correct settlement, 
 the paymaster is doing no more than his duty 
 and is acting strictly within his authority. If 
 the commanding: officer feels satisfied that a 
 
 payment should be made in advance of the 
 receipt of full information, he is at liberty to 
 order said pay^ment, assuming the responsi- 
 bility therefor in accordance with section 285, 
 Revised Statutes. (3 Comp. Dec, 449.) 
 
 Responsibility of pay oflS.cer. — \ATienever 
 Congress has desired to relieve di.sbursing offi- 
 cers from liability for payments made on the 
 authority of others, it has had no difficulty in 
 finding language to express that intent. Ex- 
 amples of this are found in sections 285 and 846, 
 Revised Statutes; act of March 3, 1879 (20 
 Stat., 419); and paragraph 6 of section 8, act of 
 July 31, 1894 (28 Stat., 208). Under the last- 
 mentioned act, general provision has been 
 made by which disbursing officers can avoid 
 responsibility by applying to the Comptroller 
 of the Treasury for an advance decision in 
 cases where they may have doubts. The 
 enactment of the special provisions above men- 
 tioned is a clear indication that Congress in- 
 tended that the general rules of accounting 
 should apply in other cases, upon the well- 
 known rule of construction, expressio unius est 
 exclusio alterixis [the expression of one thing is 
 the exclusion of another] . (7 Comp . Dec. , 271 . ) 
 
 The party to whom payment has not been 
 made by a disbursing officer may present his 
 demand, or claim, to such disbursing officer's 
 superior, who, if he deems the claim to be a 
 just one, may require the subordinate to make 
 the payment. But in such a case, the pay 
 officer is no longer responsible financially; the 
 order of his superior has relieved him from 
 danger of checkage, and the disallowance, if 
 any, would fall upon the superior. In such 
 cases it is not the accounting officers who have 
 power to order payment, but the disbursing 
 officer's superior. (File 26543—66, Sept. 8, 
 1911.) 
 
 Congress never intended that a Secretary of 
 War should order a jjaymaster or quartermaster 
 to make a payment, and then upon the requisi- 
 tion of the accounting officers of the Treasury, 
 punish the officer for having made it by stop- 
 ping his pay. (Smith v. U. S., 24 Ct. Cls., 215.) 
 
 A disbursing officer is not responsible for 
 illegal payments made by him in good faith and 
 in accordance with the certificate of another 
 officer as to the facts. An appropriation being 
 under the control of the head of a department 
 it is within the latter's power to prescribe rules 
 governing the disbursing agent m making dis- 
 bursements therefrom. (9 Comp. Dec, 545; see 
 also, Maj. Smith's case, 23 Ct. Cls., 452; 21 
 Comp. Dec, 314; Comp. Dec, Nov. 21, 1914, 
 file 26254-1672; 21 Comp. Dec, 357, file 26254- 
 1451:5, Oct. 31, 1914; file 26254-1451:11, Apr. 
 12, 1915. But see Comp. Dec, Mar. 26, 1914, 
 App. No. 23482, file 26254-1451:2; Comp. Dec, 
 Oct. 9, 1914, App. No. 23482, file 26254-1451:12; 
 21 Comp. Dec 245, reversed 21 Comp. Dec, 
 357.) 
 
 A Navy regulation (art. R-3991, 1913) re- 
 quiring pay officers to disburse money under 
 certain contingencies is an order of the Secre- 
 tary of the Navy, and as such protects the pay 
 officer from responsibility and is conclusive 
 upon the accounting officers. (30 Op. Atty. 
 Gen., 376, 171 S and A. Memo., 3611, revers- 
 ing 21 Comp. Dec, 554, 357, 245; see also file 
 26254-1451:11.) 
 
 54641°— 22- 
 
 18 
 
 267 
 
Sec. 28'; 
 
 Pt. 2. REVISED STATUTES. 
 
 Treasury Department. 
 
 Sec. 286. [Fixing date of loss of missing vessels.] The proper accounting 
 officers of the Treasury are authorized, under the direction of the Secretary of 
 the Navy, in settling the accounts of seamen, and others, not officers, borne 
 on the books of any vessel in the Navy which shall have been wrecked, or which 
 shall have been unheard from so long that her Avreck may be presumed, or 
 which shall have been destroyed or lost with the rolls and papers necessary to 
 a regular and exact settlement of such accounts, to fix a day when such wreck, 
 destruction, or loss shall be deemed to have occurred. — (4 July, 1864, c. 248, 
 s. 1, V. 13, p. 389.) 
 
 S. and A. Memo., 1352.) In the same case, on 
 January 20, 1911, nothing further having been 
 heard from the men supposed to have been 
 drowned by the capsizing of their boat, the 
 Comptroller held that "the presumption of the 
 existence of life for seven years after a person 
 was last heard from, is not an absolute presump- 
 tion, but is a disputable one, and is subject to 
 be controlled by facts and circumstances and 
 other legitimate evidence; " that so long a time 
 had elapsed that, if the men had been picked 
 up by a passing vessel, they doubtless would 
 have been heard from; and it is improbable 
 that they all agreed to desert. Accordingly, 
 held that the men in question were drowned 
 on November 27, 1909, and payment of death 
 gratuity should be made. (File 26254—399:1; 
 see also 17 Comp. Dec, 528; compare Dig. 
 Comp. Dec. (1902), p. 144.) 
 
 " If I am to draw a conclusion at all, I 
 should infer that a person in the position of a 
 sergeant [U. S. Marine Corps] having nothing 
 against his character would not desert, and 
 that he died while on leave, and so was not 
 heard of by the authorities." (In re Phone's 
 Trusts, L. R. 5 ch. 139; Thayer's Cases on 
 Evidence, 57.) 
 
 "Vessel" defined. — See section 3, Revised 
 Statutes. 
 
 The Secretary of the Navy issued orders 
 
 on March 15, l!>iO, daclaring the U. S. S. Nina 
 to have been lost, and that the commanding 
 officer and enlisted men attached to said vessel 
 "will be regarded as having died on this date." 
 (File 7054—136.) 
 
 Jurisdiction of accounting officers. — 
 Under this section, the determination by the 
 Secretary of the Navy of the day when the 
 wreck, destruction, or loss shall be deemed to 
 have occurred is binding upon the accounting 
 officers of the Treasury in settling the accounts 
 of seamen and others, not officers, borne on 
 the books of the vessel. (32 Op. Atty. Gen., 
 427, file 26254—3048:2; contra, 26 Comp. Dec, 
 336.) 
 
 All presumptions of death, other than 
 the legal presumption of death after seven 
 years' unexplained absence, should be dis- 
 regarded unless the evidence leaves no con- 
 clusion reasonable other than that, under the 
 known facts, death must have residted. A\Tiere 
 it is possible that the men may have been 
 picked up by a sailing vessel, payment of death 
 gratuity under the act of May 13, 1908 (35 Stat., 
 128), should not be made to the designated 
 beneficiaries of such men until further time has 
 elapsed without their being heard from. 
 (Comp. Dec, Mar. 15, 1910, file 26254—399, 109 
 
 Sec. 287. [Accounts of seamen on lost vessel.] The proper accounting 
 officers of the Treasury are authorized, in settling the accounts of the petty 
 officers, seamen, and others, not officers, on board of any vessel in the employ 
 of the United States, which by any casualty, or in action with the enemy, has 
 been or may be sunk or otherwise destroyed, together with the rolls and papers 
 necessary to the exact ascertainment of the several accounts of the same at 
 the date of such loss, to assume the last quarterly return of the paymaster of 
 any such vessel as the basis for the computation of the subsequent credits to 
 those on board, to the date of such loss, if there be no official evidence to the 
 contrary. Where such quarterly return has, from any cause, not been made, 
 the accounting officers are authorized to adjust and settle such accounts on 
 principles of equity and justice. — (4 July, 1864, c. 948, s. 2, v, 13, p. 390.) 
 
 See note to section 284, Revised Statutes. 
 
 The Navy Regulations, 1913, contain 
 the following article: 
 
 "2042. (1) In case of the loss of the ship, her 
 commanding officer shall remain by her with 
 officers and crew as long as necessary and save 
 as much Government property as possible. 
 Every reasonable effort shall be made to save 
 the log book, muster roll, accounts of officers 
 and crew, and other valuable papers. 
 
 " (2) If it becomes necessary to abandon the 
 ship, ho should be the last person to leave her. 
 
 " (3) He shall make a report of the circum- 
 stances to the Secretary of the Navy as soon as 
 possible and, if wrecked within the United 
 States, shall repair to the nearest naval station 
 with the crew of the ship. 
 
 "(4) He shall, if in a foreign country, lose 
 no time, after making all efforts to save prop- 
 erty, in returning with the officers and crew to 
 
 268 
 
Treasury Department. 
 
 Ft. 2. RE VISED STAT UTES. 
 
 Sec. 290. 
 
 tlie fleet or squadron to which, they belong or, 
 if acting singly, to the United States. He shall 
 take steps for the preservation of the Govern- 
 ment property saved, until it shall be disposed 
 of in such manner as the department may direct. 
 
 "(5) In the event of the loss of accounts of 
 any person in the Navy, caused by wreck or 
 otherwise, he shall proceed in accordance with 
 article 1^924." 
 
 The foUo-wing article is frora Naval In- 
 structions, 1913: 
 
 "4924. In the event of the loss of accounts 
 occurring from the loss or capture of a ship of the 
 
 Navy, the pay officer, on receiving a written 
 order from the conamanding officer, shall open 
 other accounts with the survivors, from the date 
 of the disaster, giving to each person the rating 
 he held at the time the accounts were lost; and 
 the accounts so made out shall accompany the 
 survivors on their transfer to a ship or station, 
 the pay officer of which is to govern himself by 
 these accounts in making payments or issues, 
 until he receives further instructions from the 
 Na\^ Department or the Auditor for the Navy 
 Department." 
 
 Sec. 288. [Compensation for personal effects lost. Repealed.] 
 
 This section provided as follows: 
 
 "The proper accounting officers of the Treas- 
 ury Department are authorized, in settling the 
 accounts of the petty officers, seamen, and 
 others, not officers, on board of any vessel in 
 the employ of the United States, which, by 
 any casualty, or in action with the enemy, has 
 been or may be sunk or otherwise destroyed, 
 to allow and pay to each person, not an officer, 
 employed on the vessel so sunk or destroyed, 
 and whose personal effects have been lost, a 
 sum not exceeding sixty dollars, as compensa- 
 tion for the loss of his personal effects." — (4 
 July, 1864, c. 248, s. 2, v. 13, p. 390.) 
 
 It was repealed by act of October 6, 1917 
 
 (40 Stat., 390). 
 
 See note to section 290, Revised Statutes. 
 
 A permanent annual appropriation is matle 
 by section 3689, Revised Statutes, for "indem- 
 nity to seamen and marines for lost clothing: 
 To allow and pay to each person, not an officer, 
 employed on a vessel of the United States sunk 
 or otherwise destroyed, and whose personal 
 effects have been lost, a sum not exceeding $60. 
 In the event of the death of the person, this 
 sum is to be paid to his proper legal representa- 
 tives." 
 
 Sec. 289. [Payment in case of death. Repealed.] 
 
 This section provided as follows: 
 
 " In case of the death of any such petty offi- 
 cer, seaman, or other person, not an officer, 
 stich payment shall be made to the widow, 
 child or children, father, mother, or brothers 
 and sisters jointly, following that order of pref- 
 erence; such credits and gratuity to be paid . 
 out of any money in the Treasury not otherwise 
 appropriated."— (4 July, 1864, c. 248, s. 3, v. 
 13, p. 390.) 
 
 It was repealed by act of October 6, 1917 
 (40 Stat., 390). 
 
 See notes to sections 286, 288, and 290, Re- 
 vised Statutes. 
 
 The manner of settling accounts of deceased 
 officers and enlisted men in the Na\'y and Ma- 
 rine Corps, where the amotmt due is less than 
 
 $500, is provided for by act of May 27, 1908 (35 
 Stat., 373). 
 
 Payment of arrears due deceased enUsted 
 men was pro^dded for by section 274, Revised 
 Statutes. 
 
 Payment of pension money in case of death 
 of pensioners in Government Hospital for the 
 Insane is pro\dded for by section 4839, Revised 
 Statutes, as amended by act of February 2, 
 1909 (35 Stat., 592). 
 
 Disposition of pensions and other moneys due 
 deceased beneficiaries of Naval Home is pro- 
 vided for by act of June 30, 1914 (38 Stat., 398). 
 
 Disposition of money and effects of deceased 
 persons in the naval service is regulated by act 
 of March 29, 1918 (40 Stat., 499). See also 16 
 Op. Atty. Gen., 494. 
 
 Sec. 290. [Allowance to officers for personal effects lost. Repealed.] 
 
 This section provided as follows: 
 " In case any officer of the Navy or Marine 
 Corps on board a vessel in the employ of the 
 United States which, by any casualty, or in 
 action with the enemy, at any time since 
 the nineteenth day of April, eighteen. hundred 
 and sixty-one, has been or may be sunk or de- 
 stroyed, shall thereby have lost his personal 
 effects, without negligence or want of skill or 
 foresight on his part, the proper accotmting 
 officers are authorized, with the approval of the 
 Secretary of the Navy, to allow to stich officer 
 a sum not exceeding the amount of his sea- 
 pay for one month as compensation for such loss. 
 But the accounting officers shall in all cases 
 require a schedule and certificate from the 
 officer making the claim for effects so lost." — 
 (6 April, 1866, c. 27, s. 1, v. 14, p. 14.) 
 
 It was repealed by act of October 6, 1917 
 (40 Stat., 390), which contained new and com- 
 plete provisions on the subject. 
 
 Losses in time of peace. — By act of March 
 2, 1895 (28 Stat. 962), provision was made for 
 adjustment of losses of officers and men in the 
 naval service, in time of peace, due to ship- 
 wreck or other marine disaster, limiting reim- 
 bursement to such articles of personal property 
 as are required by the Navy Regulations, and 
 reqidring all claims to be submitted within 
 two years from the occurrence of the loss; and 
 stipidating that reimbursement shall be based 
 on value of articles at the time of loss. Under 
 this act it was made the duty of the accounting 
 officers of the Treasur\^ to determine the value 
 of the property so lost,' and the Secretary of the 
 Treasur>' was required to certify all such losses 
 
 269 
 
Sec. 290. 
 
 Pt.2. REVISED STATUTES. 
 
 Treasury Department. 
 
 to tlie Speaker of the House of Representatives 
 at tlie commencemeut of each res^ular session, 
 who should lay same before Congress for con- 
 sideration. 
 
 This act was repealed and new provisions 
 subtil ituted therefor by act of October 6, 1917 
 (40 Stat., 390). 
 
 Destruction of TJ. S. S. "Maine."— By 
 act iMarch 30, 1898 (30 Stat. 340), provision 
 was made for relief of sufferers by the destruc- 
 tion of the U. S. S. Maine, as follows: 
 
 "That to reimburse the survivors of the offi- 
 cers and crew of the United States steamer 
 Maine, destroyed by an explosion in the harbor 
 of Havana, Ciiba, on the fifteenth day of Feb- 
 ruary-, eighteen hundred and ninety-eight, for 
 losses incurred by them, respectively, in the 
 destruction of said A'essel, there shall be paid 
 to each of said survdvors, out of any money in 
 the Trerusur^' of the United States not other- 
 wise appropriated, a sum equal to the losses so 
 sustained by them: Provided, That the account- 
 ing officers of the Treasury shall in all cases 
 require a schedule and affidavit from each per- 
 son making a claim iinder tliis act, such sched- 
 ule to be approved by the Secretary of the 
 Na^-J'; and reimbursement shall be made for 
 such articles of clothing, outfit, and for such 
 personal effects only as are of a character and 
 value and in quantity suitable and appropriate 
 to the rank or rating and duty of the person by 
 whom the claim is made: Provided further, That 
 in no case shall the aggregate sum allowed for 
 siich losses exceed the amoimt of twelve 
 montlis' sea pay (\vithout rations) of the grade 
 or rating held by such person at the time the 
 losses were incurred. 
 
 "Sec. 2. That the widow, child, or children, 
 and in case there be not such, that the parent 
 or parents, and if there be no parent, the 
 brothers and sisters, of the officers, enlisted 
 men, and others who were lost in the destriic- 
 tion of said vessel, or who have died or who 
 may die ^vithin one year from date of the dis- 
 aster in consequence of injuries received in 
 the destruction of said vessel, shall be entitled 
 to and shall receive, out of any money in the 
 Treasury of the United States not otherwise 
 appropriated, to wit: The relative, in the order 
 named, of the persons heretofore referred to, a 
 sum equal to tweh'e months' sea pay of the 
 grade or rating of each person deceased as afore- 
 said: Provided, That the legal representatives 
 of the deceased persons hereinbefore referred 
 to shall also be paid from the Treasury of the 
 United States any arrears of pay due the de- 
 ceased at the time of their death: Provided 
 further, That if any person who shall receive 
 reimbursement under tliis act, for losses in- 
 curred in said disaster, shall die witliin the 
 year in consequence of injuries incurred in the 
 destruction of said vessel, the amount so paid 
 shall be deducted from the amount of twelve 
 months' sea pay (without rations) allowed to 
 such beneficiary^ by virtue of this act of relief. 
 
 "Sec. 3. That the accoimting officers of the 
 Treasury be, and they are hereby, authorized 
 to continue for a period of three months any 
 allotments which may have been made in 
 favor of any relatives of the degrees herein- 
 before enumerated by any of the officers and 
 men attached to the United States ship Maine 
 
 who lost their lives in or in consequence of 
 the disaster to that vessel: Provided, That the 
 amount of the allotments so continued shall be 
 deducted from the amount of twelve months' 
 sea pay allowed to such beneficiaries by virtue 
 of this act for their relief. 
 
 "Sec. 4. That the relief granted by the ^provi- 
 sions of tliis act shall be in full satisfaction of 
 any and all claims whatever against the United 
 States on account of losses or death by the 
 destruction of the United States steamer Maine, 
 and any claim against the United States wliich 
 shall be presented and acted upon under the 
 authority of this act shall be held to be finally 
 determined and shall not in any manner there- 
 after be reopened, reconsidered, supplemented 
 nor be subject to appeal in any form; and the 
 method of presenting and establishing said 
 claims hereinbefore presented shall be followed 
 in lieu of those prescribed by acta or parts of 
 acts heretofore enacted relating to the presenta- 
 tion and allowance of similar claims: Provided, 
 That nothing herein shall affect the right of any 
 of the beneficiaries under this act to any pen- 
 sion to which they may be entitled under exist- 
 ing law after the expiration of one year from 
 said fifteenth day of Februarj', eighteen hun- 
 dred and ninety-eight. 
 
 "Sec. 5. That no claims shall be allowed 
 under the pro^-isions of this act wliich shall not 
 be presented within two years after the date of 
 its passage. 
 
 "Sec 6. That the Secretary' of the Na^n,' be, 
 and he is hereby, authorized, whenever in his 
 discretion it may be deemed practicable and 
 expedient, to cause the remains of all or any 
 of those who perished in consequence of said 
 disaster to be removed to the United States 
 cemetery at Arlington: Provided, That the 
 relatives of any of such deceased officers and 
 others mentioned in this act who prefer that the 
 remains of such be taken to their homes witlun 
 the United States shall have such privilege 
 extended to them, and the expense thereof 
 shall be borne by the United States; and the 
 sum of ten thousand dollars, or so much thereof 
 as may be necessary, is hereby appropriated, 
 out of any money in the Treasury not othermse 
 appropriated, to carrj' out the provisions of this 
 section . ' ' 
 
 Fires at Washington Navy Yard. — The 
 naval apj)ropr'ation act, JNIay 4, 1898 (30 Stat., 
 388), contained the follo"ning clause: 
 
 ' ' To reimburse the enlisted men of the United 
 States Marine Corps who incurred loss of cloth- 
 ing by the fires which occurred at the naAn,'- 
 yard, Washington, District of Columbia, on the 
 twenty-second and twenty-ninth days of April, 
 eighteen hundred and ninety-seven, fifty-one 
 dollars and seventy-three cents: Provided, 
 That the accounting officers of the Treasury^ 
 shall in all cases require a schedule and certifi- 
 cate from each person making a claim under 
 this act." 
 
 Wreck of TJ. S. S. "Charleston."— Bv act 
 of February 7, 1903 (32 Stat., 804), provision 
 was made for reimbursement of losses sus- 
 tained in the wreck of the U. S. S. Charleston, as 
 follows: 
 
 ' ' That to reimburse the officers and crew of the 
 United States steamship Charleston, destroyed 
 on a coral reef off Camiguin Island, in the Phil- 
 
 270 
 
Treasury Department. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 290. 
 
 ippiues, November second, eighteen hundred 
 and ninety-nine, for losses incurred by them, 
 respectively, in the destruction of said vessel, 
 there shall be paid to each of said officers and 
 crew or to the personal representatives of any 
 which may be deceased, out of any money in 
 the Treasury of the United States not other- 
 wise appropriated, a sum equal to the losses so 
 sustained by them: Provided, That the ac- 
 counting officers of the Treasury shall in all 
 cases reqaii-e a schedule and certificate from 
 each person making a claim under this act, 
 such schedule to be approved by the Secretary 
 of the Navy, who may require other satisfac- 
 tory proof of said losses, and reimbursements 
 shall be made for such losses as are of a char- 
 acter and value suitable and appropriate to the 
 rank, rating, or duty of the person suffering 
 such loss: Provided, however, That in no case 
 shall the aggregate sum allowed any claimant 
 or person for such loss exceed the value of such 
 articles of personal i)roperty as were required 
 by the United States Naval Regulations in 
 force at the time of such loss, and there shall be 
 deducted therefrom any sum heretofore paid 
 any of them under section two hundred and 
 ninety of the Revised Statutes. 
 
 "Sec. 2. That the relief granted by the pro- 
 visions of this act siiall be in full satisfaction 
 of any and all claims wiiatever against the 
 United States on account of losses by the 
 destruction of the United States steamship 
 Charleston, and any claim which shall be 
 presented and acted upon \inder the authority 
 of this act shall be held to be finally deter- 
 mined, and shall not in any manner thereafter 
 be reopened, reconsidered, supplemented, nor 
 be subject to ajjpeal in any form. 
 
 " Sec. 3. That no claim for losses by reason of 
 the destruction of said vessel not heretofore 
 presented shall be allowed under the provisions 
 of this act which shall not be presented within 
 two years after the date of its passage. 
 
 "Sec. 4. That any amounts that have been 
 paid under sections two hundred and eighty- 
 eight, two hundred and eighty-nine, and two 
 hundred and ninety of the Revised Statutes 
 shall be deducted in the settlement of all 
 claims under this act." 
 
 San Francisco fire. — The naval appropria- 
 tion act of June 29, 1906 (34 Stat., 554), con- 
 tained the following: 
 
 "To reimburse officers and enlisted men of 
 the Navy and Marine Corps who were on duty 
 under orders in San Francisco during the recent 
 fire in that city for losses of clothing and other 
 personal effects sustained by them tlirough 
 said fire, seven thousand dollars, or so much 
 thereof as may be necessary: Provided, That 
 such reimbursement shall be made under regu- 
 lations to be prescribed by the Secretary of the 
 Navy and ui)on vouchers to be approved by 
 him in each case." 
 
 Efifects destroyed to prevent spread of 
 disease, — The Naval Instructions, 1913, con- 
 tain the following provisions: 
 
 "4750. Cl) Should it become necessary to 
 destroy clotliing or other personal effects of 
 officers or men to prevent the spread of disease, 
 the commandant of the station or commanding 
 officer of the ship shall direct a survey to be 
 held on the articles, and the report, containing 
 
 a list of the articles, with an estimate of tlieir 
 value, approved by him, shall be transmitted 
 to the Navy Department. The surveying 
 officer shall base Ms estimate on the actual 
 value of the articles destroyed and not on the 
 original cost of the arti(des. 
 
 " (2) No issue shall be made to persons in lieu 
 of their effects so destroyed. They can only 
 be reimbursed for such loss by certificate from 
 the Treasury Department after the approval of 
 the report of survey by the Secretary of the 
 Navy." 
 
 The annual deficiency appropriation acts 
 contain appropriations under "Claims allowed 
 by the Auditor for the Navy Department," 
 for payment of claims "for destruction of 
 clothing and bedding for sanitary reasons," 
 cei'tified to Congress under section 2, act of 
 July 7, 1884 (23 Stat., 254), which reads in part 
 as follows: 
 
 "That the Secretary of the Treasury shall, 
 at the commencement of eac;h session of Con- 
 gress, report the amount due each claimant 
 whose claim has been allowed in whole or in 
 part to the Speaker of the House of Repre- 
 sentatives and the presiding officer of the Sen- 
 ate, who shall lay tlie same before their respec- 
 tive Houses for consideration. " 
 
 In the Army the Secretary of War is author- 
 ized to order gratuitous issues of clothing to 
 soldiers who have had contagious diseases, and 
 to hospital attendants who have niu-sed them, 
 to replace any articles of their clothing de- 
 stroyed by order of the proper medical officers 
 to prevent contagion. (Sec. 1298, R. S.; 4 
 Comp. Dec, 26; see also act June 30, 1902, 32 
 Stat., 517. )_ 
 
 Where private property is destroyed by the 
 Government for its own benefit, with the assent 
 of the o^vner, a contract is implied to make 
 compensation for its value. (7 Comp. Dec, 
 767.) 
 
 Payment of the value of a house belonging to 
 an Indian and located on an Indian reserva- 
 tion, which was destroyed by officers of 
 the Government to prevent the spread of dis- 
 ease, may be made from an appropriation pro- 
 viding for the support and civilization of 
 Indians. (12 MSS. Comp. Dec, 1098.) 
 
 Reimbursement for articles of clothing be- 
 longing to Government employees, destroyed 
 to prevent the spread of smallpox, may fairly 
 be considered as coming within the scope of 
 medical attendance to which such employees 
 were entitled. (12 MSS., Comp. Dec. 462. See 
 Comp. Dig., p. 610.) 
 
 New statutory provisions superseding 
 prior laws and providing generally for the 
 reimbursement of persons in the naval service 
 for property lost or destroyed in such service, 
 are contained in the act of October 6, 1917 (40 
 Stat., 389.) 
 
 CLAIMS FOR REIMBURSEMENT. 
 
 Jurisdiction was not conferred upon the 
 Court of Claims by the act of March 2, 1895, 
 and suit for such losses was not authorized 
 under that act. (Harllee v. U. S., 51 Ct. Cls., 
 342; see also U. S. r. Babcock, 250 U. S., 328). 
 
 Marine Corps. — Officers and enlisted men 
 of the Marine Corps are not entitled to reim- 
 
 271 
 
Sec. 290. 
 
 Ft. 2. REVISED STATUTES. 
 
 Treasury Department. 
 
 barsement for loss of personal effects in accord- 
 ance with laws relating to the Army; but are 
 entitknl to such reimbursement under the same 
 circumstances as if they were in the Navy 
 proper. (3 Comp. Doc, G59; Ilarllee v. U. S., 
 51 Ct. Cls., 342; compare 4 Comp. Dec, 26.) 
 
 Not a gratuity. ^The amount to which an 
 officer or enlisted man is entitled under the law 
 for private property lost or destroyed is by way 
 of reimbursement, and is not a gratuity; and 
 accordingly, where an officer died before re- 
 ceiving the amount due him for private prop- 
 erty lost by the wreck of a vessel, held that such 
 amount may be paid to the legal representati v^es 
 of the deceased officer or to the persons entitled 
 to take his personal propertv upon his decease. 
 (8 Comp. Dec, 688.) [See note to section 289.] 
 
 Losses in time of war. — The act of March 
 2, 1895 (28 Stat., 962), above noted, which pro- 
 vided for reimbursement for private property 
 belonging to officer? or enlisted men of the 
 Navy, lost or destroyed by shipwreck or other 
 marine disasster, and which further provided 
 ' ' that this act sliall Jiot apply to losses sxistained 
 in time of war," was not applicable to private 
 property lost on the U. S. S. Charleston while 
 operating with the land forces of the United 
 States in the suppression of the local insurrection 
 in the Philippine Islands on November 2, 1899. 
 WTiile the United States was not at war with 
 any recognized power, nevertheless, held, for 
 the purpose of this act (Mar. 2, 1895), a state of 
 war existed as to all the military forces of the 
 United States directly engaged in the suppres- 
 sion of said insurrection. However, in such 
 cases reimbursement was allowed under sec- 
 tions 288-290, Revised Statutes. (7 Comp. 
 Dec, 345; see also, 9 Comp. Dec, 527.) [Spe- 
 cial provision was subsequently made by Con- 
 gress for the relief of officers and crew of the 
 Charleston, as shown by act above quoted.] 
 
 Prior laws enlarged by act of March 2, 
 1895.— Sections 288-290 provided for certain 
 limited payments to officers and men, only 
 when they were "on board a vessel in the em- 
 ploy of the United States." Under the act of 
 March 2, 1895, payment was authorized in any 
 case where the property was lost in the naval 
 service by shipwreck or marine disaster, without 
 regard to the character of the vessel the goods 
 were on at the time of the loss. The claimant, 
 however, was required to show that such loss 
 was without fault or negligence on his part, 
 unless the property was shipped in an unsea- 
 Avorthy vessel by order of an officer autliorized 
 to give such order, in which case such proof 
 was not required. (2 Comp, Dec, 30.) 
 
 The act of March 2, 1895, was intended to be 
 an enlargement of previous laws providing for 
 the reimbursement of officers and seamen for 
 property lost or destroyed in the naval service, 
 and therefore was to be liberally construed. It 
 appeared from this act that sections 288-290, 
 Revised Statutes, were directly under the con- 
 sideration of Congress at the time of its enact- 
 ment. (2 Comp. Dec, 30; 1 Comp. Dec, 441.) 
 
 The act of March 2, 1895, authorized payment 
 in the case of petty officers and seamen who 
 died prior to the passage of the said act. It has 
 several times been held that acts making pro- 
 vision for the payment of additional compensa- 
 tion or bounty are personal and for the benefit 
 
 only of those living at the time the act takes 
 effect, unless something therein clearly indi- 
 cates tluit the intention of Congress was that 
 others should receive the beneiit of the pro- 
 vision. As section 289, Revised Statutes, pro- 
 vided for payment in the cases of persons, other 
 than officers, who had tlied, and as the act of 
 March 2, 1895, required any payment under 
 section 289 to be deducted from the amount to 
 to be paid under tlie provisions of said act, an 
 intention upon the part of Congress to make the 
 act apply to patty officers, seamen, and others 
 in the naval service, not officers, who were 
 already dead when the act was passed, seems 
 clear. Wliether the act also applied to the 
 cases of officers wlio had died before that date 
 was not decided in this case. (1 Comp. Dec, 
 473.) [As to officers who die before recei\'ing 
 payment, see note above, " Not a gratuity."] 
 
 "Shipwreck or other marine disaster," 
 within the meaning of the act of March 2, 1895, 
 was intended to cover shipwreck or marine dis- 
 aster to the ship itself, involving a total or 
 partial destruction or casting away of tlie ship, 
 and not suck a temporary disaster as waves 
 washing over the sliip's decks or like misfortune 
 necessarily incident to sea service. (1 Comp. 
 Dec. 441; followed Comp. Dec, Apr. 25, 1911, 
 App. No. 19972, file 26254-692.) 
 
 JURISDICTION, ACCOUNTING OFFICERS AND 
 SECRETARY OP THE NAVY. 
 
 See note to section 236, Revised Statutes, on 
 general subject of jurisdiction of account- 
 ing officers and heads of executive depart- 
 ments. 
 
 Secretary's approval not conclusive. — 
 In settlements under section 290, Revised 
 Statutes, it was never regarded that the sched- 
 ule and certificate of the officer, with the ap- 
 proval of the Secretary, were conclusive upon 
 the accounting officers or relieved them from 
 responsibility of making further investigations 
 and disallowing any portion of a claim which 
 to them seemed unwarranted by the law or 
 the facts. (4 Comp. Dec, 590.) 
 
 Under the act of February 7, 1903, for reim- 
 bursing the officers and crew of the U. S. S. 
 Charleston, an officer was not entitled to reim- 
 bursement of a greater amount than the aggregate 
 value of the articles of personal property which 
 were required by the naval regulations in force 
 at the time of the loss, even though his claim for 
 a greater amount had been approved by the 
 Secretary of the Navy. (10 Comp. Dec, 456; 
 see also Little v. U. S., 41 Ct. Cls., 408.) 
 
 See act of October 6, 1917 (40 Stat., 389), and 
 see United States v. Babcock (250 U. S., 328). 
 
 Secretary's approval limits maximum 
 amount to be allowed. — Under the act of 
 March 30, 1898 (quoted above), providing that 
 ' ' the accounting officers of the Treasury shall in 
 all cases require a schedule and affidavit from 
 each person making a claim " for losses incurred 
 by them by the destruction of the U. S. S. 
 Maine, "such schedule to be approved by the 
 Secretary of the Navy," the approval by the 
 Secretary of the Navy was not conclusive upon 
 the accounting officers. The reasonable inter- 
 pretation of the act was that the schedule was 
 
 272 
 
Treasury Department. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 290, 
 
 required to be approved by the Secretary of the 
 Navy as a safeguard against the allowance of 
 unjust and exorbitant claims, arising from the 
 fact that the accounting officers, without the ad- 
 vice and approval of the Navy Department, 
 were not in a position to judge so intelligently as 
 to what articles are suitable and appropriate for 
 an officer or enlisted man of the rank or rating and 
 duty of the claimant. The effect was to put a 
 limitation upon the jurisdiction of the account- 
 ing officers, and to preclude the allowance of 
 anything not having the approval of the Secre- 
 tary of the Navy, but leaving their jm-isdiction 
 unimpaired as to items and amounts approved 
 by him. While, therefore, the schedule and 
 affidavit of an officer making claim under this 
 act (Mar. 30, 1898), when approved by the 
 Secretary, made out on their face a prima facie 
 claim as contemplated by the act, they were by 
 no means conclusive upon the accounting offi- 
 cers except to limit their jurisdiction to a con- 
 sideration of items and amounts so presented. 
 The approval of the Secretary of the Na\'y was 
 required by the law before the claim could be 
 considered by the accounting officers, and while 
 the Auditor might be justified in allowing a 
 claim upon such approval of the Secretary of the 
 Navy, the Auditor was not concluded thereby 
 if in his judgment additional proof wasnecessary 
 and proper to a fair and just adjudication of 
 the claim. In reaching his conclusions, great 
 weight should, of course, be given to the de- 
 cision of the Secretary, both as to what articles 
 were necessary and appropriate for the rank of 
 the claimant, and also as to the value of such 
 articles. But within the limitations imposed 
 by the Secretary's approval, the claim should 
 be settled in the same manner as other claims 
 of a similar nature. (4 Comp. Dec, 587.) 
 
 [It will be noted that the act of June 29, 1906, 
 above quoted, relative to the San Francisco 
 fire, was broader in its terms than that con- 
 sidered in the Comptroller's decision last above 
 cited. No question of jurisdiction arose under 
 the San Francisco act, which provided that 
 "reimbursement shall be made under regula- 
 tions to be prescribed by the Secretary of the 
 Navy and upon vouchers to be approved by 
 him in each case." Only one claim under this 
 act was considered by the Comptroller of the 
 Treasury, and was allowed as of course, the 
 Comptroller saying: "The said claim was ap- 
 proved on August 27, 1907, by the Secretary of 
 the Navy in the amount of 147.44. Upon this 
 revision, therefore, the claimant will be al- 
 lowed $47.44, the amount approved by the 
 Secretary of the Navy." (Comp. Dec, Sept. 
 16, 1907, Appeal No. 12726, file 4753-95.)] 
 
 Accounting' oflB.cers bound by naval reg- 
 ulations. — Under the act of March 2, 1895 (28 
 Stat. 962, above noted), the accounting officers 
 were bound by the official statement of the Chief 
 of the Bureau of Navigation as to what articles 
 were a part of the necessary outfit required by 
 the regulations. While the number required 
 by the regulations might be below that with 
 which the men were usually provided, still no 
 discretion lay in the accounting officers to go 
 behind the regulations fixed by the naval au- 
 thorities who were famiUar with the needs of 
 the men. (2 Comp. Dec, 150.) 
 
 LIMITATIONS UPON CLAIMS. 
 
 Value at date of loss. — In settling claims 
 under the act of March 2, 1895 (above noted), 
 it was held that the accounting officers must al- 
 low the actual value of private property at the 
 date of the loss or destruction, when such actual 
 value is proved by the claimant. As petty offi- 
 cers and seamen in the naval service are not 
 required to procure their clothing and personal 
 effects from the paymaster upon requisitions, 
 they are not limited to the paymaster's issuing 
 price, but may prove their claims by such evi- 
 dence as is required to clearly establish the 
 actual value of their property at the date of 
 loss or destruction. In the absence of such 
 proof, the "issuing price" may be accepted aa 
 a fair valuation. (2 Comp. Dec, 150.) 
 
 Articles required by regulations. — Offi- 
 cers and men presenting claims under the act 
 of March 2, 1895 (above noted), could be reim- 
 bursed only for "such articles of personal 
 property as are required by the U. S. Naval 
 Regulations" both as to number and kind, 
 and the accounting officers could not allow 
 claims for articles in excess of the regulation 
 requirements, which they were permitted to 
 carry for their personal comfort or convenience. 
 (2 Comp. Dec, 150; 1 Comp. Dec, 441.) 
 
 Articles not required by regulations 
 but within limit of amount. — The act of 
 February 7, 1903 (quoted above), did not 
 limit reimbursement for losses on the Charles- 
 ton to articles required by the regulations, 
 but on the contrary permitted payment to 
 be made for any article lost that was suit- 
 able and appropriate to the rank, rating, or 
 duty of the person suffering such loss, though 
 such article may not have been required 
 by the regulations; but the whole amount 
 which could be allowed was strictly limited to 
 the total value of articles required by the Navy 
 Regulations. To illustrate, if a special full 
 dress suit was required, and it appeared that 
 the officer did not lose such an article, the value 
 of that article could be allowed him through 
 reimbursement for the loss of some other article 
 or articles which, while not required by the 
 regulations, were nevertheless suitable to the 
 rank or duty of the officer. It was possible 
 under this law for an officer or enlisted man who 
 had lost no article required by the regulations, 
 to receive a large sum for the loss of other arti- 
 cles, but the sum allowed could be no greater 
 than the total value of the articles required by 
 the regulations. (Letter of Comptroller of the 
 Treasury to the Secretary of the Navy, Nov. 5, 
 1903, Appeal No. 9569, file 9410, 2527, 1903; 
 1370-1903.) 
 
 What articles required by regulations. — 
 An examination of the volume entitled "U. S. 
 Navy Regulations " fails to disclose information 
 as to what articles are required. Under these 
 circumstances, not only have the Uniform 
 Regulations been followed, but also, in order to 
 ascertain what was required by the regulations 
 of the Navy, an official itemized statement was 
 obtained from the Chief of the Bureau of Navi- 
 gation, giving the character and number of such 
 articles. If this statement could not be ac- 
 cepted, then it appears that there were in fact 
 
 273 
 
Sec. 300. 
 
 Pt.2. REVISED STATUTES. 
 
 Treasury Department. 
 
 no Naval Regulations as contemplated in the 
 act (Mar. 2, 1895). However, the expression 
 "naval roj;ulations" should be construed in 
 accordance with the intention of Congress, and 
 the manifest purpose of the act being to reim- 
 burse the officers and seamen for the loss of 
 clothing required by the rules and rej^ulations 
 of the Navy, the statement of the Chief of the 
 
 Bureau of Navigation, transmitted by the Secre- 
 tary of the Navy, giving the number and char- 
 acter of the articles required by the regula- 
 tions, must be treated as the best evidence of 
 what was required by the U. S. Naval Regula- 
 tions referred to in the act. (2 Comp. Dec. 150.) 
 [See note to section 161, Revised Statutes.] 
 
 Sec. 297. [Auditors may administer oaths.] Tlie several Auditors are 
 empowered to administer oaths to witnesses in any case in which they may deem 
 it necessary for the due examination of the accounts with which they shall be 
 charged.— (3 Mar., 1817, c. 45, s. 12, v. 3, p. 368. 8 Jmie, 1872, c. 335, s. 24, 
 V. 17, p. 228.) 
 
 See sections 184, 185, and 186, Revised Statutes, 
 relative to seciu*ing attendance of witnesses. 
 
 See note to section 183, Re-vdsed Statutes, con- 
 cerning oaths in cases arising in the Navy. 
 
 Sec. 300. [Allowance of lost checks.] Whenever the disbursing officer or 
 agent by whom was issued any check which has been lost, destroyed, or stolen 
 is dead, or no longer in the service of the United States, the proper accounting 
 oflScer shall, under such regulations as the Secretary of the Treasury may pre- 
 scribe, state an account in favor of the owner of such original check for the 
 amount thereof, and charge such amount to the account of such officer or 
 agent.— (2 Feb., 1872, c. 12, ss. 1, 2, v. 17, p. 29.) 
 
 The substance of this provision is repeated in 
 section 3647, Revised Statutes, which sec- 
 tion was amended and reenacted by act of 
 February 23, 1909 (35 Stat., 643.) 
 
 Regulations prescribed by the Secretary of the 
 
 Treasury concerning lost checks are given 
 in article 4337, Navy Regulations, 1913. 
 See note to section 251, Revised Statutes, on 
 general subject of regulations of the Treas- 
 ury Department. 
 
 274 
 
CHAPTER FIVE. 
 
 THE TREASURER. 
 
 Sec. 301. [Treasurer.] There shall be in the Department of the Treasury 
 a Treasurer of the United States, who shall be appointed by the President, by 
 and with the advice and consent of the Senate, and shall be entitled to a salary 
 of six thousand five hundred dollars a year. — (2 Sept., 1789, c. 12, s. 1, v. 1, p. 
 65. 23 July, 1866, c. 208, s. 2, v. 14, p. 206. 3 Mar., 1875, c. 130, s. 2, v. 18, 
 p. 397.) 
 
 The salary of the Treasurer of the United 
 States was fixed at |S,000 per annum by the 
 act of March 4, 1909 (35 Stat., 1065). 
 The rooms provided in the Treasury 
 Building' at the seat of government for 
 the use of the Treasirrer are by law the 
 "Treasury of the United States" (sec. 3591, 
 R. S.); assistant treasurers are authorized and 
 have been appointed to serve at New York and 
 other cities (sec. 3595, R. S. ) ; the rooms assigned 
 by law to be occupied by them are appropri- 
 ated to their use and for the safekeeping of the 
 public money deposited with them (sec. 3598, 
 R. S.); the assistant treasurers are to have the 
 charge and care of the rooms, etc., assigned to 
 them, and to perform the duties required of 
 them relating to the receipt, safekeeping, and 
 disbursement of public money (sec. 3599, R. S.); 
 all collectors and receivers of public money of 
 every description within the city of New York 
 and other cities are required, as often as may be 
 directed by the Secretary of the Treasury, to 
 pay over to the assistant treasurer in their re- 
 spective cities all public money collected by 
 them or in their hands (sec. 3615, R. S.); the 
 Treasurer of the United States and all assistant 
 treasurers are requu'ed to keep all public money 
 placed in their possession until the same is 
 ordered by the proper department or officer of 
 the Government to be transferred or paid out, 
 
 and when such orders are received, faithfully 
 and promptly to comply with same ; and to per- 
 form all other duties as fiscal agents of the Gov- 
 ernment that may be imposed by any law or by 
 any regulation of the Treasury Department 
 made in conformity with law (sec. 3639, R. S.); 
 all money paid into the Treasury of the United 
 States is subject to the draft of the Treasurer; 
 and for the purpose of payment on the public 
 account the Treasurer is authorized to draw 
 on any of the depositories as he may think most 
 conducive to the public interest and the con- 
 venience of pubUc creditors. (Sec. 3644, R. 
 S.) (Cooke V. U. S., 91 U. S., 398.) 
 
 Adjustment of accounts. — All claims 
 against the United States are to be settled and 
 adjusted in the Treasury Department, and that 
 is located "at the seat of Government." The 
 assistant treasurer in New York [or elsewhere] 
 is a custodian of public money which he may pay 
 out or transfer upon the order of the proper de- 
 partment or officer; but he has no authority to 
 settle and adjust — that is to say, to determine 
 upon the validity of, any claim against the Gov- 
 ernment. He can pay only after the adjust- 
 ment has been made "in the Department of the 
 Treasury," and then upon drafts drawn for that 
 purpose by the Treasurer. (Cooke v. U. S., 
 91 U. S., 399.^ 
 
 Sec. 303. [Assistant Treasurer.] There shall be in the Department of ths 
 Treasury an Assistant Treasurer of the United States, who shall be appointed 
 by the President, by and with the advice and consent of the Senate, and shall 
 be entitled to a salary of two thousand eight hundred dollars a year. — (3 Mar., 
 1863, c. 89, s. 1, V. 12, p. 761. 25 June, 1864, c. 147, s. 2, v. 13, p. 159.) 
 
 See note to preceding section. 
 
 The compensation of the Assistant Treasurer 
 has been increased in annual appropria- 
 tion acts to 13,600 per annum. See act of 
 March 4, 1913 (37 Stat., 755). 
 
 Additional "assistant treasurers of the United 
 States," located in various cities, are pro- 
 vided for by sections 3594 and 3595, Re- 
 vised Statutes. 
 
 Sec. 305. [Duties of the Treasurer.] The Treasurer shall receive and keep 
 the moneys of the United States, and disburse the same upon warrants drawn 
 
 275 
 
Sec. 306. 
 
 Ft. 2. REVISED STATUTES. 
 
 Treasury Department. 
 
 by the Secretary of the Treasury, countersigned by either Comptroller, and 
 recorded by the Rc2:istcr, and not other^^'ise. He shall take receipts for all 
 moneys paid by him, and shall give receipts for all moneys received by him; 
 and all receipts for moneys received by him shall be indorsed upon warrants 
 signed by the Secretary of the Treasury, without which warrant, so signed, no 
 acknowledgment for money received into the public Treasury shall be valid. 
 He shall render his accounts to the Fu*st Comptroller quarterly, or oftener if 
 required, and shall transmit a copy thereof, when settled, to the Secretary of 
 the Treasury. He shall at all times submit to the Secretary of the Treasury 
 and the First Comptroller, or either of them, the inspection of the moneys m 
 his hands.— (2 Sept., 1789, c. 12, s. 4, v. 1, p. 65.) 
 
 See note to section 301, Revised Statutes. 
 
 So much of this section as required the Register 
 
 of the Treasury to record warrants was re- 
 pealed by act of July 31, 1894, section 11 
 
 (28 Stat., 209). 
 The title "First Comptroller" was changed to 
 
 "Comptroller of the Treasury" and the 
 
 office of Second Comptroller was abolished 
 
 by act of July 31, 1894, section 4 (28 Stat., 
 
 206). 
 The accounts of the Treasurer are to be received 
 
 and examined by the Auditor for the 
 
 Treasury Department. (Act July 31, 1894, 
 
 sec. 7, 28 Stat., 206.) 
 Payments upon warrants. — The judg- 
 ments of the Court of Claims, even when affirmed 
 by the Supreme Court, and allowances made by 
 the Secretary of the Treasury or other public 
 officers under authority of law, can not be paid 
 
 Sec. 306. [Liabilities outstanding three or more years.] At the termina- 
 tion of each fiscal year all amounts of moneys that are represented by certifi- 
 cates, drafts, or checks, issued by the Treasurer, or by any disbursing officer of 
 any Department of the Government, upon the Treasurer or any assistant 
 treasurer, or designated depositary of the United States, or upon any national 
 bank designated as a depositary of the United States, and which shall be 
 represented on the books of either of such offices as standing to the credit of 
 any disbursing officer, and which were issued to facilitate the payment of 
 warrants, or for any other purpose in liquidation of a debt due from the United 
 States, and which have for three years or more remained outstanding, unsat- 
 isfied, and unpaid, shall be deposited by the Treasurer, to be covered into the 
 Treasury by warrant, and to be carried to the credit of the parties in whose 
 favor such certificates, di'afts, or checks were respectively issued, or to the 
 persons who are entitled to receive pay therefor, and into an appropriation 
 accoimt to be denominated "outstanding Uabilities." — (2 May, 1866, c. 70, ss. 
 1, 4, V. 14, pp. 41, 42.) 
 
 by the Treasurer except upon a warrant drawn 
 by the Secretary of the Treasury, counter- 
 signed by the Comptroller of the Treasury, in 
 pursuance of appropriations made by law. 
 (Ravesies v. U. S., 21 Ct. Cls., 243.) [See note 
 to section 236, Revised Statutes.] 
 
 All warrants are required to be countersigned 
 by the Comptroller of the Treasury under 
 section 11, act of July 31, 1894 (28 Stat., 209); 
 under section 4 of the same act (28 Stat., 206), 
 power is given to the Assistant Comptroller of 
 the Treasury, under direction of the Comp- 
 troller of the Treasury, to countersign all war- 
 rants; and the chief clerk in the office of the 
 Comptroller of the Treasury is empowered, in 
 the name of the Comptroller of the Treasury, 
 to countersign all warrants except accountable 
 warrants. 
 
 See sections of the Revised Statutes set forth 
 below, and notes thereto. 
 
 Regulations in pursuance of sections 
 306-310, Revised Statutes.— The Navy 
 Regulations, 1913, contain tlie following article: 
 
 " 4334. The following regulations made by the 
 Secretary of the Treasury, in pursuance of sec- 
 tions 306 to 310 of the Revised Statutes, shall be 
 observed by all officers: 
 
 " (a) Any Treasury draft or any check drawn 
 by a public disbursing officer still in service, 
 
 which shall be presented for payment before it 
 shall have been issued three full fiscal years, will 
 be paid in the usual manner by the oflicer or bai^ k 
 on wliich it is drawn, and from funds to the 
 credit of the drawer. Thus, any such draft or 
 check issued on or after July 1, 1909, will be 
 paid as above stated until June 30, 1913, and 
 the same rule will apply for subsequent years. 
 " (6) Any such draft or check which has been 
 issued for a longer period than three full fiscal 
 years will be paid only by the settlement of 
 
 276 
 
 ^ 
 
Treasury Department. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 306. 
 
 an account in the Treasurj^ Department, as 
 pro^^.ded in section 308, Revised Statutes, and 
 for this purpose the draft or check will be trans- 
 mitted to the Secretary of the Treasury for the 
 necessary action . 
 
 ' ' (c) At the close of each fiscal year, the Treas- 
 urer, the several assistant treasurers, and the 
 national-bank depositaries will render to the 
 Secretary of the Treasury, as required by sec- 
 tion 310, a list of all disbursing officers' accounts 
 still unclosed which have remained unchanged 
 on the books of their respective offices or banks, 
 either by debit or credit, more than three fiscal 
 years, giving in each case the name and official 
 designation of the officer, the date when the 
 accoimt with him was opened, the date of last 
 debit and last credit, and the balance remain- 
 ing to hia credit. 
 
 ^\d) Every disbursing officer will, on the 30th 
 of June of each year, as also required by section 
 310, make a return to the Secretary of the 
 Treasury of all checks drawn by him which 
 have been outstanding and unpaid for three 
 full fiscal years, stating the number of each 
 check, its date, amount, in whose favor, on 
 what office or bank, and for what purpose 
 drawn , the number of the voucher in payment 
 of which it was drawn, and, if known, the 
 residence of the payee. 
 
 "(e) Whenever any disbursing officer of the 
 United States shall cease to act in that capacity, 
 he will at once inform the Secretary of the 
 Treasury whether he has any public funds to 
 his credit in any office or bank, and, if so, what 
 checks, if any, he has drawn against the same 
 which are still outstandmg and unpaid. Until 
 satisfactory information of this character shall 
 have been furnished, the whole amount of such 
 moneys will be held to meet the payment of 
 his checks properly payable therefrom. 
 
 "(/) In case of the death, resignation, or re- 
 moval of a public disbursing ofiicer, any check 
 pre^iou8ly drawn by him and not presented 
 for payment within four months of its date will 
 not be paid until its correctness shall have 
 been attested by the Secretary or Assistant 
 Secretary of the Treasury. 
 
 " {g) If the object or purpose for which any 
 check of a public disbursing officer is drawn is 
 not stated thereon, as required by the follow- 
 ing article, or if any reason exists for suspecting 
 fraud, the office or bank on which such check 
 is drawn will refuse its payment." 
 
 Statute of Limitations. 
 
 Does not run until demand and refusal. — 
 Where the amount of lost checks was covered 
 into the Treasury in pursuance of this section, 
 the promise of the Government, contained in 
 the statute, to hold money so paid into the 
 Treasury, was a continuing promise, available 
 to the drawee or his administratrix at any time, 
 to which full force should be given; when 
 application was made by the administratrix 
 to the Secretary of the Treasury for payment 
 of the checks by the issue of Treasury warrants 
 under the authority conferred by sections 306, 
 307, 308, Revised Statutes, and such application 
 was refused, then for the first time a claim for 
 the breach of the contract accrued, and the 
 statute of limitations began to run from the 
 
 date of the refusal. (U. S. v. Wardwell, 172 
 U. S., 48; 26 Op. Atty. Gen., 194.) 
 
 Where it is established that funds in the 
 hands of the Government are held in trust, it 
 follows that no part of such funds is subject to 
 the operation of the statute of limitations. 
 (State of Louisiana v. U. S., 23 Ct. Cls., 53.) 
 The claim for such funds first accrues, within 
 the meaning of the statute of limitations, when 
 it is first presented to the Secretary of the 
 Treasury. (Harrison v. U. S., 20 Ct. Cls., 175.) 
 [In U. S. V. Taylor, 104 U. S., 216, it was held 
 that when the surplus proceeds of real estate, 
 sold for a direct tax due the United States, is 
 deposited in the Treasury to be there held for 
 the use of the owner of the property, the statute 
 of limitations runs from the date of his appli- 
 cation to the Secretary of the Treasury for that 
 surplus.] 
 
 Analogous to trust fund. — Wliere the 
 amount of an unclaimed draft issued by the 
 Government was covered into the Treasury, 
 and about 16 years later demand for paj-Tnent 
 was made and refused; held, that after the 
 draft was issued the Government held the fimd 
 in the nature of a trust, and that the statute of 
 limitations as to claims cognizable by the Court 
 of Claims did not begin to run until the date of 
 demand. (Ray ^.U. S., 50 Fed. Rep., 166. See 
 also Ravenel et al. v. U. S., 23 Ct. Cls., 192.) 
 
 Disavowal of trust. — An act repealing an 
 appropriation must be regarded as a disavowal 
 of the trust; and it must be held that the statute 
 of limitations began to run at the date of the 
 repealing act. (Russell v. U. S., 37 Ct. Cls., 
 113.) 
 
 Where money appropriated by Congress is 
 not paid to the beneficiary but is covered into 
 the Treasury under this section and carried to 
 the credit of the party for whose benefit the 
 appropriation was made, it may be regarded as 
 an express trust, subject to the qualification 
 that the statute of limitations will begin to run 
 as soon as the trust is openly disavowed by the 
 trustee. (Russell v. U. S., 37 Ct. Cls., 113.) 
 
 The statute of limitations can not be set up 
 against money credited to a claimant in the 
 appropriation account of "outstanding liabil- 
 ities. " Such money is held as a trust fund, 
 payable on demand without limit of time. 
 The statute of limitations does not run against 
 it until the trustee disavows the trust. (Wayne 
 V. U. S., 26 Ct. Cls., 274.) 
 
 Proof of identity sufl&cient. — There is 
 much indebtedness of the United States which 
 no lapse of time in making appUcation for pay- 
 ment renders stale, such as interest on regis- 
 tered bonds and other balances stated in favor 
 of parties on the books of the Treasury Depart- 
 ment, as to which the only proof to be made is 
 the identity of the claimant or his right to 
 represent the record creditor. (Waddell v. 
 U. S., 25 Ct. Cls., 323, citing sees. 306, 307, 308, 
 R. S., and Hall's Case, 17 Ct. Cls., 39.) 
 
 Merger of original claim.^ — It has been held 
 that an action may be maintained against the 
 Government upon a Treasury draft issued in 
 payment of an account which has been audited 
 and certified at the Treasury, notwithstanding 
 that the original cause of action is barred by 
 the statute of limitations. (Buffalo Bayou R. 
 Co. V. U. S., 16 Ct. Cls., 238.) 
 
 277 
 
Sec. 308. 
 
 Pt.2. REVISED STATUTES. 
 
 Treasury Department. 
 
 WTieu a claim passes intxD the form of checks, 
 its legal character changes from that of a (leniaud 
 for goods 8t)ld and delivered to a claim repre- 
 sented by the checks given in liquidation of the 
 original demand. It then becomes a legal 
 obligation arising upon the new form of indebt- 
 edness. The fund establi.*hed by section 306, 
 Revised Statutes, bears upon it the impress of a 
 trust, payable on demand ^vilhout limit of time; 
 and the statutes of limitations can not be set up 
 against money so credited to the claimant in 
 the permanent appropriation for outstanding 
 liabilities. (Wardwell v. U. S., 32 Ct. Cls., 30.) 
 
 Juiisdiction. of Court of Claims. — Where 
 a Government check is lost or stolen, the 
 Re\nsed Statutes (sees. 306-310, 3646) do not 
 require that payment must be postponed for 
 three years or preclude a suit. They simply 
 
 authorize disbursing officers to dupUcate small 
 checks in certain cases. The power given to 
 the accounting officers to duplicate lost checksis 
 not exclusive and does not affect the jurisdic- 
 tion of the courts. (Becker v. U. S., 26 Ct. Cls 
 172, 177.) 
 
 Character of outstanding draft. — A 
 Treasury draft outstanding for more than three 
 years, the appropriation to pay it covered into 
 the Treasury, has ceased to be negotiable 
 paper. (Harris i;. U. S., 27 Ct. Cls., 177.) 
 
 A claimant having an amount rightly due to 
 her, standing to her credit on the books of the 
 Treasury under section 306, Revised Statutes, is 
 entitled to recover though a draft more than 
 three years outstanding for the same debt is in 
 the hands of a thu-d person. (Harris v. U. S., 
 27 Ct. Cls., 177.) 
 
 Sec. 307. [Vouchers for drafts remaining unpaid.] The certificate of the 
 Register of the Treasury, stating that the amount of any draft issued by the 
 Treasurer, to facihtate the payment of a warrant directed to him for payment, 
 has remained outstanding and unpaid for three years or more, and has been 
 deposited and covered into tlie Treasury in the manner prescribed by the pre- 
 ceding section, shall be, when attached to any such warrant, a sufficient voucher 
 in satisfaction of any such warrant or part of any warrant, the same as if the 
 drafts correctly indorsed and fully satisfied were attached to such warrant or 
 part of warrant. And all such moneys mentioned in this and in the preceding 
 section shall remain as a permanent appropriation for the redemption and 
 payment of aU such outstanding and unpaid certificates, drafts, and checks.— (2 
 May, 1866, c. 70, s. 2, v. 14, p. 41.) 
 
 This section was amended byactof July31, 1894, 
 section 16 (28 Stat., 210); by substituting 
 the words "Secretary of the Treasury" for 
 
 the words "Register of the Treasury" as 
 given above. 
 See note to preceding section. 
 
 Sec. 308. [Payment upon presentation of outstanding drafts.] The payee 
 or the bona-fide holder of any draft or check the amount of which has been 
 deposited and covered into the Treasury pursuant to the preceding sections, 
 shall, on presenting the same to the proper officer of the Treasury, be entitled 
 to have it paid by the settlement of an account and the issuing of a warrant 
 in his favor, according to the practice in other cases of authorized and liqui- 
 dated claims against the United States. — (2 May, 1866, c. 70, s. 3, v. 14, p. 42.) 
 
 See note to section 306, Revised Statutes. 
 
 Not merely matter of bookkeeping. — If 
 bookkeeping was the only matter sought to be 
 provided for by sections 306, 307, and 308, Re- 
 vised Statutes, there were no need of section 
 308. That prescribes payment, and payment 
 in a particular way. The payee does not 
 simply surrender his check and receive money; 
 but "on presenting the same to tlie proper 
 officer" he is "entitled to have it paid by the 
 settlement of an account and the issuing of a 
 warrant in liis favor." This may be mere 
 machinery for payment, but it is machinery 
 not used or required until after the money has 
 been "covered into the Treasury by warrant" 
 and "carried to the credit" of the payee. The 
 right given is the right to surrender the check 
 and receive a wan'ant on the Treasury. It will 
 
 also be noticed that the purpose of the act of 
 1866 upon which these sections are based was, 
 as expressed in its title, not merely to "facili- 
 tate the settlement of the accounts of the 
 Treasurer of the United States," not merely to 
 perfect a system of bookkeeping, but also "to 
 secure certain moneys * * * to persons to 
 whom they are due and who are entitled to 
 receive the same." In other words, the pur- 
 pose of the Government by this statute is to 
 secure to each party who holds Government 
 paper the amount thereof, to place it in the 
 Treasury to his credit, and to prescribe a 
 method by wliich, whenever he wishes, he can 
 obtain it. No time is mentioned in which he 
 must apply for a warrant or after which the 
 money is forfeited to the Government. When 
 the contract created by the promise made in 
 
 278 
 
Treasury Department. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 310. 
 
 section 308 is broken, then a claim for the for by proof that it was stolen and has not been 
 
 breach of such contract first accrues and the lieard of for more than seventeen years. In 
 
 limitation begins to run. (U. S. v. Wardwell, such a case it is not necessary for the claimant 
 
 172 U.S., 48; see also Ray t;.U. S., 50 Fed. Rep., to give a bond of indemnity. (Wayne v. U. S., 
 
 166.) 26 Ct. Cls., 274. See also U. S. v. Wardwell, 
 
 Payment without bond. — The nonproduc- 172 U. S., 48.) 
 tion of a Treasury draft is sufficiently accounted 
 
 Sec. 309. [Accounts of disbursing officers unchanged for three years.] The 
 amounts, except such as are provided for in section three hundred and six, of 
 the accounts of every kind of disbursing officer, which shall have remained un- 
 changed, or which shall not have been increased by any new deposit thereto, 
 nor decreased by drafts drawn thereon, for the space of tkree years, shall in like 
 manner be covered into the Treasuiy, to the proper appropriation to which they 
 belong; and the amounts thereof shall, on the certificate of the Treasurer that 
 such amount has been deposited in the Treasury, be credited by the proper 
 accounting officer of the Department of the Treasury on the books of the 
 Department, to the officer in whose name it had stood on the books of any 
 agency of the Treasury, if it appears that he is entitled to such credit. — (2 May, 
 1866, c. 70, s. 5, V. 14, p. 42.) 
 
 See notes to sections 306-308, Revised Statutes. 
 
 Sec. 310. [Annual reports of disbursing officers, etc.] The Treasurer, each 
 assistant treasurer, and each designated depositary of the United States, and 
 the cashier of each of the national banks designated as such depositaries, shaU, 
 at the close of business on every thirtieth day of June, report to the Secretary 
 of the Treasury the condition of every account standing, as in the preceding 
 section specified, on the books of their respective offices, stating the name of 
 each depositor, with his official designation, the total amount remaining on 
 deposit to his credit, and the dates, respectively, of the last credit and the last 
 debit made to each account. And each disbursuig officer shall make a like 
 return of all checks issued by him, and which may then have been outstanding 
 and unpaid for three years and more, stating fuUy in such report the name of 
 the payee, for what purpose each check was given, the office on which drawn, 
 the number of the voucher received therefor, the date, number, and amount 
 for which it was drawn, and, when known, the residence of the payee. — (2 ]V[ay, 
 1866, c. 70, s. 6, V. 14, p. 42.) 
 
 For modification of this section, see act of 
 
 July 1, 1916, section 5 (39 Stat., 336). 
 Disbursiug officers are required to furnish 
 
 heads of departments with certain infor- 
 mation for annual report to Congress (sec. 
 193, R. S.) 
 
 279 
 
TITLE yill. 
 THE DEPARTMENT OF JUSTICE. 
 
 Sec. 
 
 346. Establishment of Department of Justice. 
 
 347. Solicitor General. 
 349. Naval solicitor, etc. 
 
 354. Opinions of Attorney General required by 
 
 the President. 
 
 355. Title to and jurisdiction over land pur- 
 
 chased by the United States. 
 
 356. Opinions of Attorney General required by 
 
 heads of departments. 
 
 357. Legal advice to Departments of War and 
 
 Navy. 
 
 358. Reference of questions by Attorney Gen- 
 
 eral to subordinates. 
 
 359. Conduct and argument of cases. 
 
 360. Performance of duty by officers of Depart- 
 
 ment of Justice. 
 
 Sec. 
 
 361. Legal services required by the President, 
 
 heads of departments, and subordinates. 
 
 362. Superintendence of district attorneys and 
 
 marshals. 
 
 363. Retaining counsel to aid district attorneys. 
 
 364. Attendance of counsel to be provided by 
 
 Attorney General. 
 
 365. Counsel fees restricted. 
 
 366. Appointment and oath of special attorneys 
 
 or counsel. 
 
 367. Interest of United States in pending suits, 
 
 who may attend to. 
 383. Publication of opinions. 
 
 Sec. 346. [Establishment of Department of Justice.] There shall be at the 
 seat of Government an Executive Department to be known as the Department 
 of Justice, and an Attorney-General, who shall be the head thereof. — (24 Sept., 
 1789, c. 20, s. 35, v. 1, p. 92. 22 June, 1870, c. 150, s. 1, v. 16, p. 162.) 
 
 See sections 187, 188 and 189, Revised Statutes, 
 and sections 180. 185, Judicial Code, act of 
 March 3, 1911 (36 Stat., 1142), as to duties of 
 the Attorney General. 
 See note to section 158, Revised Statutes, as to 
 organization and growth of executive de- 
 partments, etc. 
 There is no very specific statement of 
 the general duties of the Attorney Gen- 
 eral, but it is seen from the whole chapter that 
 he has authority, and it is made his duty, to 
 supervise the conduct of all suits brought by or 
 against the United States, and to give advice to 
 the President and the heads of other depart- 
 ments of the Government. He is invested with 
 the general superintendence of all suits to be 
 brought against the debtors of the Government, 
 or upon bonds, or to begin criminal prosecu- 
 tions or to institute proceedings in any of the 
 numerous cases in which the United States is 
 plaintiff. All the district attorneys who do 
 bring them in the various courts in the country 
 are placed under his immediate direction and 
 control . He is undoubtedly the officer who has 
 charge of the institution and conduct of the 
 pleas of the United States and of the litigation 
 which is necessary to establish the rights of the 
 Government. He is the officer to determine 
 when the United States shall sue, for whatit 
 shall sue, and to be responsible that such suits 
 are brought in appropriate cases. In all this, 
 however, the Attorney General acts as the head 
 of one of the executive departments, repre- 
 senting the authority of the President in the 
 class of subjects within the domain of that 
 department and under his control. (U. S. v. 
 San Jacinto Tin Co., 125 U. S., 273.) 
 
 The Attorney General is given "general su- 
 perintendence and direction" of the district 
 attorneys, in whom Congress has vested the 
 initial power of prosecution. (In re Beavers, 
 131 Fed. Rep., 366.) 
 
 The provisions of law concerning the 
 Department of Justice "are too conclusive 
 and too specific to leave any doubt that Con- 
 gress intended to gather into the Department of 
 Justice, under the supervision and control of 
 the Attorney General, all the litigation and all 
 the law business in which the United States 
 are interested, and which previously had been 
 scattered among different pubUc officers, de- 
 partments, and branches of the Government, 
 and to break up the practice of frequently em- 
 ploying unofficial attorneys for the public serv- 
 ice." (Perry v. U. S., 28 Ct. Cls., 491.) 
 
 Proceedings before grand jury. — Neither 
 the Attorney General, the Solicitor General, 
 nor any officer of the Department of Justice is 
 authorized by sections 359, 367, or other provi- 
 sions of the Revised Statutes of theUnited States, 
 to conduct or to aid in the conduct of proceed- 
 ings before a grand jury, nor has a special as- 
 sistant to the Attorney General such power. 
 (U. S. V. Rosenthal, 121 Fed. Rep., 862.) 
 [This is now authorized by act of June 30, 1906, 
 noted under section 359, "Revised Statutes.] 
 
 Relation of Attorney General to Con- 
 gress. — The Attorney General is not authorized 
 to give his official opinion upon a call of either 
 House of Congress or any committee or Member 
 thereof. (17 Op. Atty. Gen., 358. For other 
 cases, see note to sec. 356, R. S.) 
 
 281 
 
Sec. 355. 
 
 Pt.2. REVISED STATUTES. 
 
 Justice Department. 
 
 See sections 177-182 Revised Statutes, as to 
 officers authorized to act temporarily iu 
 cases of death, resignation, absence, or sick- 
 ness of heads of Departments, generally. 
 
 The salary of the Solicitor-General has been 
 increased to $10,000 per annum. 
 
 Sec. 347. [Solicitor General.] There shall be in the Department of Justice 
 an officer learned in the law, to assist the Attorney-General in the performance 
 of his duties, called the Solicitor-General, who shall be appointed by the Presi- 
 dent, by and with the advice and consent of the Senate, and shall be entitled 
 to a salary of seven thousand five hundred dollars a year. In case of a vacancy 
 in the office of Attorney-General, or of liis absence or disability, the Solicitor 
 General shall have power to exercise all the duties of that office. — (22 June, 
 1870, c. 150, s. 2, V. 16, p. 162.) 
 
 Where the Solicitor General signs a 
 docuraent as "Acting Attorney General," 
 the absence of the Attorney General will be 
 presumed in support of the legality of the docu- 
 ment so signed. (U. S. v. Twining, 132 Fed. 
 Rep., 129. For other decisions, see notes to 
 sees. 161 and 177, Revised Statutes.) 
 
 Sec. 349. [Naval Solicitor, etc.] There shall be in tlie Department of 
 Justice a Solicitor of the Treasury, an Assistant Solicitor of the Treasury, a 
 Solicitor of Internal Revenue, a Naval Solicitor, and an Examiner of Claims for 
 the Department of State, who shall be appointed by tlie President, by and with 
 the advice and consent of the Senate, and shall be entitled to the following 
 salaries: The Solicitor of the Treasury to four thousand dollars a year, the 
 Assistant Solicitor of the Treasm^y to three thousand dollars a year, the Solicitor 
 of Internal Revenue to five thousand dollars a year, the Naval Solicitor to three 
 thousand five hundred dollars a year, and the Examiner of Claims for the 
 Department of State fom- thousand dollars a year. — (22 June, 1870, c. 150, ss. 
 3, 9, 10, V. 16, pp. 162, 3. 29 May, 1830, c. 153, s. 1, v. 4, p. 414. 3 Mar., 
 1865, c. 76, s. 1, V. 13, p. 468. 23 July, 1866, c. 208, s. 5, v. 14, p. 207. 13 
 July, 1866, c. 184, s. 64, v. 14, p. 170. 23 July, 1866, c. 208, s. 5, v. 14, p. 207. 
 27 May, 1870, Res. 66, s. 1, v. 16, p. 378. 3 Mar., 1873, c. 226, s. 3, v. 17, p. 
 508.) 
 
 So much of the above section as provided for 
 
 the appointment of, and payment of a 
 
 salary to, a "naval solicitor," was repealed 
 
 and that office abolished by act June 19, 
 
 1878 (20 Stat., 205). 
 The office of the Judge Advocate General of the 
 
 Navy was established by act of June 8, 1880 
 (21 Stat., 164). And see act of May 22, 1908 
 (35 Stat., 218), noted under section 419, 
 Revised Statutes, as to office of the solic- 
 itor in the Navy Department. 
 Other amendments to this section do not relate 
 to the Navv, and are not noted. 
 
 Sec. 354. [Opinions of Attorney General required by the President.] The 
 Attorney General shall give his advice and opinion upon questions [of] law, 
 whenever required by the President. — (24 Sept., 1789, c. 20, s. 35, v. 1, p. 92- 
 27 Feh., 1877, c. 69, v. 19, 'p. 241.) 
 
 The President's right to call for an 
 opinion from the Attorney General is not 
 limited to questions of law. Article II, section 
 2, clause 1, of the Constitution, provides that he 
 "may require the opinion of the principal 
 
 officer of each of the executive departments 
 upon any subject relating to the duties of their 
 respective offices." (23 Op. Atty. Gen., 360. 
 For other cases see note to section 356, Revised 
 Statutes.) 
 
 Sec. 355. [Title to, and jurisdiction over, land purchased by United States.] 
 No public money shall be expended upon any site or land purchased by the 
 United States for the purposes of erecting thereon any armory, arsenal, fort, 
 fortification, navy-yaid, custom-house, light-house, or other public building, 
 of an}" kind whatever, until the written opinion of the Attorney-General shall 
 be had in favor of the validity of the title, nor imtil the consent of the legis- 
 
 282 
 
Justice Department. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 855. 
 
 lature of the State in which the land or site may be, to such purchase, has been 
 given. The district attorneys of the United States, upon the appUcation of 
 the Attorney-General, shall furnish any assistance or information in then- 
 power in relation to the titles of the public property lying within their respec- 
 tive districts. And the Secretaries of the Departments, upon the appUcation 
 of the Attorney-General, shall procure any additional evidence of title which 
 he may deem necessary, and which may not be in the possession of the officers 
 of the Government, and the expense of procuring it shall be paid out of the 
 appropriations made for the contingencies of the Departments respectively. — 
 (11 Sept., 1841, Res. No. 6, v. 5, p. 468.) 
 
 Art. R-117 (1) Navy Regulations, 1913, pro- 
 vides that the solicitor in the Navy Depart- 
 ment "shall be charged, under the special 
 instructions of the Secretary of the Navy, 
 with the searching of titles, purchase, sale, 
 transfer, and other questions affecting lands 
 and buildings pertaining to the Navy, and 
 with the care and preservation of all muni- 
 ments of title to land acqiiired for naval 
 uses." 
 
 By act of February 27, 1877, it was pro\'ided 
 that "it shall be the duty of all officers of 
 the United States having any of the title pa- 
 pers (of property purchased, or about to be 
 purchased, for the erection of pubUc build- 
 ings) in their possession, to furnish them, 
 forthwith, to the Attorney General. No 
 public money shall be expended until the 
 written opinion of the Attorney General 
 shall be had." (19 Stat., 242. Thisactwas 
 amendatory of sec. 1136, R. S., relating to 
 the Army.) 
 
 By act of March 2, 1889 (25 Stat., 941) it was pro- 
 vided that "Hereafter all legal services con- 
 nected with the procurement of titles to 
 sites for public buildings, other than for 
 life-saving stations and pierhead lights, 
 shall be rendered by United States district 
 attorneys: Provided further, That hereafter, 
 in the procurement of sites for such public 
 buildings, it shall be the duty of the Attor- 
 ney General to require the grantors in each 
 case to furnish free of all expense to the 
 Government, all requisite abstracts, official 
 certificates, and evidences of title that the 
 Attorney General may deem necessary." 
 
 By joint resolution, April 11, 1898, it was pro- 
 vided that the requirements of this section 
 shall not be applicable to cases in which a 
 temporary fort or fortification may be con- 
 structed upon the written consent of the 
 owner of the land in an emergency in 
 which, in the opinion of the President, the 
 immediate erection of such temporary fort 
 or fortification is deemed important and 
 urgent. (30 Stat. 737.) 
 
 By act of October 6, 1917 (40 Stat., 427), it was 
 provided that this section "shall not apply 
 to the expenditure of appropriations for the 
 Ordnance Department of the Army now 
 available for the purchase of land and for 
 improvements upon such land." 
 
 By act of March 30, 1900, the provisions of this 
 section were "waived " in a case in which it 
 was impracticable to apply to the State 
 legislature for consent to the purchase until 
 
 its next session, and the buildings were ur- 
 gently required for the shelter of troops 
 (31 Stat., 55.) 
 
 Other statutes making exception to the pro- 
 visions of this section in specific cases in- 
 clude the following: July 2, 1917 (40 Stat., 
 241); October 6, 1917 (40 Stat., 353); March 
 1, 1918 (40 Stat., 439); March 28, 1918 (40 
 Stat., 460); April 11, 1918 (40 Stat., 519); 
 May 6, 1918 (40 Stat., 552); July 8, 1918 
 (40 Stat., 818); July 9, 1918 (40 Stat., 860, 
 888); July 18, 1918 (40 Stat., 916). 
 
 By act of June 20, 1878, it was provided that the 
 provisions of this section and section 4661, 
 Revised Statutes, should not apply to the 
 erection of a sma,ll pierhead light. (20 Stat., 
 214 . ) Exception has also been made in the 
 case of a hghthouse and fog signal. (See 
 2 Conip. Dec, 626.) 
 
 The acquisition of land by condemnation for 
 public use is provided for by act of August 
 1,1888 (25 Stat., 357). 
 
 The President is authorized to procure assent 
 of the legislature of any State in which 
 lands have been purchased for the erection 
 of forts, etc., without such consent having 
 been obtained. (Sec. 1838, R. S.) ["Have 
 been purchased" construed: 10 Op. Atty. 
 Gen.34.] 
 
 The President is authorized to obtain a release 
 to the United States from any person to 
 whom lands are conveyed for the use of the 
 United States. (Sec. 3752, R. S.) 
 
 The Constitution provides that Congress shall 
 have power "to exercise exclusive legisla- 
 tion in all cases whatsoever * * * over 
 all places purchased by the consent of the 
 legislature of the State in which the same 
 shall be, for the erection of forts, magazines, 
 arsenals, dockyards, and other needful 
 buildings." (Art. I, sec. 8, cl3,use 17.) 
 
 The punishment of offenses committed on lands 
 used for public purposes, the punishment 
 of which is not provided for by any law 
 of the United States, shall be the same as 
 provided by laws of the State in which situ- 
 ated. (Sec. 289, Criminal Code, act Mar. 
 4, 1909, 35 Stat., 1145; file 4143-04; 5103- 
 164 :4.) 
 
 The punishment for cutting or injuring trees, 
 breaking fences, etc., on lands of the United 
 States reserved or purchased for pubUc use, 
 is governed by Criminal Code, act of March 
 4, 1909, sections 49-58 (35 Stat., 1098, 1099). 
 
 Private persons prohibited from asserting a right 
 to the exclusive use and occupancy of pub- 
 
 54641°— 22- 
 
 19 
 
 283 
 
Sec. 365. 
 
 Pt. 2. REVISED STATUTES. 
 
 Justice Department. 
 
 lie lands; m-il proceedings to be instituted 
 by United States in such cases; and Presi- 
 dent authorized to employ civil or military 
 force to remove and destroy any unlawful 
 inclosureof said lands; etc. (Act Feb. 25, 
 1885, 23 Stat., 321.) 
 
 No contract shall be made for the erection of any 
 public building or for any improvement in 
 excess of the amount specifically appropri- 
 ated therefor. (Sec. 3733, R. S.; Cnminal 
 Code, act Mar. 4, 1909, sec. 98, 35 Stat., 
 1106.) 
 
 No land shall be purchased on account of the 
 United States, except under a law author- 
 izing such purchase. (Sec. 3736, R. S.) 
 
 Authority to purchase a site and erect a public 
 building thereon is not appropriation there- 
 for. (Act Aug. 7, 1882, 22 Stat., 305.) 
 
 I. Effect of Section. 
 II. What Lands Included, 
 
 III. Validity of Title. 
 
 IV. Consent of Legislature. 
 
 V. Jurisdiction of the United States. 
 VI. Jurisdiction, Naval Reservations. 
 VII. Miscellaneous. 
 
 I. Effect of Section. 
 
 It is clear this section was drafted with 
 a view to the language of the Constitu- 
 tion, Article I, section 8, clause 17, although 
 section 355 says nothing about a cession of jmis- 
 diction. (26 Op. Atty. Gen., 12.) 
 
 This section demands that a transfer of juris- 
 diction, in order to satisfy its requu'ements, 
 must be coextensive with that contemplated 
 by the Constitution. (20 Op. Atty. Gen., 
 611.) 
 
 The prohibition seems to be against 
 expenditures for improvements or struc- 
 tures upon land purchased, that is, aheady 
 acquired, by the Government until the con- 
 sent is obtained, and not against the expendi- 
 ture of money for the purchase of the land. 
 Section 1838, Revised Statutes, appears to con- 
 template, as something permissible under the 
 existing law, that land may be purchased for the 
 Government without the consent of the State 
 thereto previously being given. (15 Op. Attv. 
 Gen., 212.) 
 
 The payment of the purchase money 
 for land before the consent of the legislature 
 of the State is given to the purchase is not for- 
 bidden by the law embodied in this section; 
 but it does prohibit the expenditure of public 
 money upon the improvement of the land by 
 the erection of needful buildings thereon until 
 consent is given to the purchase. (10 Op. 
 Atty. Gen., 34; 15 Op. Atty. Gen., 212; 3 Comp. 
 Dec, 530; 17 Comp. Dec, 242; Op. Atty. Gen., 
 Mar. 3, 1908, file 7101-6. Seebelow, "Validity 
 of title.") 
 
 The Government has tied its own hands 
 if the State legislature for any or no assigned 
 reason withholds its consent to a purchase of 
 the site. It may purchase and hold the land, 
 yet it can not spend a dollar of money upon the 
 
 site for the erection of the necessary buildings 
 thereon. (10 Op. Atty. Gen., 34.) 
 
 The public money expended on such 
 places, and the jiublic properly deposited in 
 them, require that they shall be exempt from 
 the authority of the particular State. Nor 
 would it be proper for the places on which the 
 security of the entire Union may depend to be 
 in any degree dependent on a particular mem- 
 ber of it. (Fort Leavenworth R. R. Co. v. 
 Lowe, 114 U. S., 525, quoting the Federalist.) 
 
 It is at the option of every State to give 
 or withhold its consent at its own pleasure. 
 The United States has no power and ought not 
 to have a desire to compel a State to cede ex- 
 clusive jurisdiction over any part of its soil. 
 (10 Op. Atty. Gen., 34.) 
 
 Congress can not acquire or assert ex- 
 clusive jimsdiction over any part of the terri- 
 tory of a State without the consent of the State 
 legislature. Hence before such jurisdiction can 
 become vested in the United States the consent 
 of the legislature of the State must be obtained, 
 notwithstanding an enactment of Congress that 
 upon purchase of real estate suitable and neces- 
 sary for the purposes of the act the fee simple 
 shall "be vested in the United States and its 
 jurisdiction over said real estate shall be ex- 
 clusive and the same as its jurisdiction over 
 real estate purchased, ceded, or appropriated 
 for the purposes of navv yards, forts, and 
 arsenals." (13 Op. Atty.^Gen., 131. See In 
 re Kelly, 71 Fed. Rep., 545; see also sec. 4882, 
 R. S.) 
 
 Where compensation has been paid for 
 land without consent of the legislature of 
 the State to its acquisition, the proper course 
 to be pursued is for the head of the department 
 to apply to such legislatiu'e for its consent. (13 
 Op. Atty. Gen., 131. See also sec. 1838, R. S.) 
 
 II. "What Lands Included. 
 
 This section includes lands located 
 under navigable waters of the United States, 
 to be used as a site for a Ughthouse for the es- 
 tablishment of which provision is made by 
 statute. Accordingly, it is not competent for 
 the Lighthouse Board to erect a structure on 
 such site until title thereto has been obtained 
 by the Government. (16 Op. Atty. Gen., 369.) 
 
 Lands acquired by condemnation. — This 
 law refers only to lands to be purchased by the 
 United Sta,tes, and does not apply to a case 
 where the law contemplates -not only purchase 
 but appropriation under the right of eminent 
 domain. (13 Op. Atty. Gen., 131, 134; 23 
 Comp. Dec, 53, 56.) 
 
 In common parlance "purchase" imports 
 the buying of property by contract, and there- 
 fore woul(i not include the case of acquisition 
 by statute or by condemnation and expropria- 
 tion. But the legal meaning of "purchase" 
 applied to real estate goes much beyond this, 
 for the phrase "title by purchase" is often em- 
 ployed to embrace all the forms of acquisition 
 except that by "descent." WTien accurately 
 defined, the distinction is between titles ac- 
 quired through some agreement or other act of 
 the party acquiring, which is "purchase;" and 
 titles acquired by the mere devolution of law 
 without any act of the party, which is "de- 
 
 284 
 
Justice Department. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 365. 
 
 scent." Undoubtedly title acc^iiired by the 
 United States by expropriation is "purchase" 
 within the scope of this section, such as, if done 
 in strict accordance with the form of the statute, 
 may be certified by the Attorney General as 
 vesting a valid title in the United States. 
 (7 Op. Atty. Gen., 114, 121.) 
 
 Lands acquired by donation. — The word 
 "purchased " does not include lands or interests 
 in lands acquired by the United States without 
 consideration or for a mere nominal sum; and 
 such cases are not included within the terms of 
 section 355. (28 Oji. Atty. Gen., 413. )_ 
 
 Under the law now embodied in section 355, 
 Kevised Statutes, before any money could law- 
 fully be expended upon land donated to the 
 United States it would be necessary to obtain a 
 cession of jiuisdiction from the State. (13 Op. 
 A.tty. Gen., 465.) 
 
 The ceding of land by a State to the United 
 States probably constitutes a "purchase" 
 thereof by the United States in the broad sense 
 of that word. (U. S. v. Tucker, 122 Fed. Rep., 
 518.) 
 
 If the site were acquired by donation, section 
 355 would require the opinion of the Attorney 
 General in favor of the validity of the title 
 before any money could be expended thereon. 
 (5 Comp. Dec, 682.) 
 
 Where land is donated to the United States 
 for the purpose of a site for a certain public 
 building, for the construction of which an appro- 
 priation has been made by Congress, the consent 
 of the legislature of the State to the grant is 
 required by section 355 before any part of the 
 appropriation can be laArfully expended in the 
 erection of the building. (16 Op. Atty. Gen., 
 414.) 
 
 Land rented to the United States, to be 
 used temporarily as a camp, is not a "place" 
 within the terms of the Constitution, over which 
 the United States have "sole and exclusive 
 jurisdiction." (U. S. v. Tiemey, 28 Fed. Cas. 
 No. 16517.) 
 
 Neither section 355 nor section 1136, Revised 
 Statutes, applies to the erection of public build- 
 ings or other structures upon land leased to the 
 United States. By their terms they are restrict- 
 ed to the expenditure of public money upon or in 
 connection with land purchased by the United 
 States for the erection of such buildings or 
 structures. (6 Comp. Dec, 877. See below, 
 " Lands acquired in foreign country." 
 
 The law embodied in this section con- 
 templates purchases of lands for all pubHc 
 purposes and establishes as a general rule 
 applicable to them that no public money shall 
 be expended in the purchase until the opinion 
 of the Attorney General on the validity of the 
 title shall be obtained and the consent of the 
 legislature of the State in which the lands are 
 situated is given. (13 Op. Atty. Gen., 131, 133; 
 but see above, "Effect of section.") 
 
 Locks and dams. — The cases seem to leave 
 no doubt that the broadest construction has 
 been wisely put upon the language of the 
 Constitution, "for the erection of forts, maga- 
 zines, arsenals, dockyards, and other needful 
 buildings, "a construction which makes it cover 
 all structures and all places necessary for carry- 
 ing on the business of the National Government. 
 Specifically held to include locks and dams. 
 
 (U. S. V. Tucker, 122 Fed. Rep., 518; but see In 
 re Kelly, 71 Fed. Rep., 545.) 
 
 A lock and dam to be erected by the War 
 Department, not a public building within the 
 meaning of this section, and may be erected on 
 land belonging to the United States although 
 consent of the legislature to the purchase has 
 not been given. (6 Comp. Dec, 843.) 
 
 The erection of a monument from an 
 appropriation under the War Department is not 
 included in this section. Not necessary that 
 title to the land should be conveyed to the 
 United States. (6 Comp. Dec, 791.) [In this 
 case the Attorney General had decided that a 
 deed to such land "vests in the United States a 
 valid title," but the Comptroller decided there 
 was no authority to purchase the land and pay- 
 ment therefor could not be made.] 
 
 Wharf not public building. — The term 
 "building" in its broadest sense includes any 
 artificial structure erected on land, but it is 
 not used in this broad sense in the statutes 
 relating to pubUc buildings under the control 
 of the Treasury Department (citing 6 Comp. 
 Dec, 877). A wharf, however extensive or 
 permanent in its nature, can not properly be 
 regarded as a pubUc building within such 
 statutes, which contemplate only such build- 
 ings as are designed for occupation by Govern- 
 ment officials or for use in affording shelter to 
 and protection of movable pubhc property. (7 
 Comp. Dec, 533, distinguishing a contrary de- 
 cision of the First Comptroller, May 22, 1894.) 
 
 Land acquired for construction of irriga- 
 tion works. — This section does not apply as to 
 manner in which the validity of title to lands 
 acquired by the Secretary of the Interior under 
 the act June 17, 1902 (32 Stat., 388), shall be 
 evidenced. Question of validity of title is 
 one for the determination of the Secretary of the 
 Interior, whose decision has the same force as 
 would an opinion of the Attorney General 
 under this section, and is conclusive on the 
 accounting oQicers. (12 Comp. Dec, 691, 
 citing letter of Acting Attorney General.) 
 
 Land for use of militia. — The purchase of 
 property for shooting galleries and target ranges 
 in the several States and Territories and the 
 District of Columbia is made upon the recom- 
 mendation of the governors of the States or 
 Territories or the commanding general of the 
 District of Columbia, approved by the Secretary 
 of War. The title to the property is convej^ed 
 to and vested in the United States. Before 
 payment for the same is made, the title must 
 be approved by the Attorney General of the 
 United States as required by this section, to 
 whom all necessary papers to prove title shall 
 be transmitted by the Secretary of War. The 
 relation of the States and Territories, and Dis- 
 trict of Columbia to such property is that of 
 trustees, vested with the use and charged with 
 the administration of it for the purpose for 
 which it is acquired. (17 Comp. Dec, 242.) 
 
 Lands acquired for cemeteries. — ^The 
 purposes enumerated in the law now embodied 
 in this section do not distinctly embrace 
 national cemeteries. Question whether such 
 cemeteries are included, not decided. (12 Op. 
 Atty. Gen., 428.) 
 
 Before jurisdiction over a national cemetery 
 can become vested in the United States the 
 
 285 
 
Sec. 355. 
 
 Pt. 2. REVISED STATUTES. 
 
 Justice Department. 
 
 consent of tho lop^islatiiro of the State in which 
 the cemetery is situated must be obtained. 
 (13 Op. Atty. Gen., 131.) 
 
 To authorize payment for land appropriated 
 for the purpose of a national cemetery, the 
 consent of the lepiislature of the State in which 
 the land lies is not necessary; nor in such case 
 is the opinion of the Attorney General as to the 
 validity of the title required. (13 Op. Atty. 
 Gen., 131.) 
 
 If the consent of the legislature of a State in 
 which a cemetery is situated can be obtained, 
 it might well be held to be included under the 
 terms of the constitutional provision vesting 
 exclusive legislation in Congress. (13 Op. Atty. 
 Gen., 131.) 
 
 See section 4882, Revised Statutes, providing 
 for exercise of exclusive jurisdiction by the 
 United States over national cemeteries pur- 
 chased with consent of the State. 
 
 Temporary building.— It is the general 
 policy of Congress that no public building shall 
 be erected on ground not owned by the United 
 States. But a small temporary building for 
 the shelter of a light keeper is not a "public 
 building" within the meaning of sections 355 
 and 1136, Revised Statutes. (6 Comp. Dec, 877.) 
 
 Lands acquiredfor temporary purpose. — 
 In practice the requirements of section 355 
 have not been regarded as applicable to reser- 
 vations deemed to be temporary properties of 
 the Government, temporarily used. (Lee v. 
 Kaufman, 15 Fed. Cas., 191. See also U. S. v. 
 World's Columbian Exposition, 56 Fed. Rep., 
 630.) 
 
 Lands acquired in foreign country. — 
 The word "State" as used in this section 
 signifies a State of the Union and has no 
 application to the erection of improvements to 
 the naval hospital, Yokohama, Japan, upon 
 land to which the United States purchases a 
 lease in perpetuity, subject to an annual rental 
 to the Japanese Government. (26 Op. Atty. 
 Gen., 12.) 
 
 This section does not apply to the purchase of 
 lands with buildings thereon at Constantinople, 
 Turkey, since no erection of a building is con- 
 templated or provided for by the appropriation 
 for such purchase. (26 Op. Atty. Gen., 380.) 
 
 The provisions of this section are not applica- 
 ble to the expenditures authorized by the act 
 of March 3, 1903 (32 Stat., 1188), for the erec- 
 tion of necessary improvements on lands at 
 Guantanamo, Cuba, leased by the United States 
 from the Republic of Cuba for the purposes of a 
 naval station. (25 Op. Atty. Gen., 160.) 
 
 III. Validity of Title. 
 
 Attorney General must certify title 
 before purchase. — The contract of a head of 
 department to purchase land can not be carried 
 out unless the Attorney General shall examine 
 the title and certify to its validity. Property 
 bargained for by the Government is always to 
 be taken and paid for if the title shall be 
 pronounced valid by the Attorney General and 
 not otherwise. This law enters into and forms 
 part of every such contract. (9 Op. Atty. 
 Gen., 100.) 
 
 Under this section it has been held that no 
 money can be expended for the purchase of 
 
 land until the Attorney General's opinion as 
 to the validity of the title has been given 
 (citing 10 Op. Atty. Gen., 353, 354); although 
 it has been held that such purchase can be 
 made ni>t\vithstanding the consent of the legis- 
 lature thereto has not been given. (3 Comp. 
 Dec, 531, citing 10 Op. Atty. Gen., 35; 15 Op. 
 Atty. Gen., 212; 4 Lawrence's Comp. Dec, 
 152.) 
 
 This section prohibits payment for land to 
 be used for the purposes therein enumerated 
 until the Attorney General shall have certified 
 as to the validity of the title. It was also 
 intended to make the opinion of the Attorney 
 General conclusive upon that question. The 
 Comptroller has not jurisdiction to pass upon 
 question of payment until written opinion of 
 Attorney General has been had in favor of the 
 validity of the title. (3 Comp. Dec, 195.) 
 
 See above, "I. Effect of Section." 
 
 If title bad, purchase can not be com- 
 pleted. — Where the Attorney General has 
 officially refused to certify the title, the head 
 of the department through which the negotia- 
 tion is conducted ought at once to declare the 
 contract rescinded; and when he does so, the 
 end of that contract has come. It can have no 
 more force afterwards than if it had never 
 been made. (9 Op. Atty. Gen., 100.) 
 
 Section 355, Revised Statutes, forbids the 
 acquisition of real estate by the Government for 
 any permanent military purpose until a perfect 
 legal title and cession of State jurisdiction shall 
 first have been obtained. (Lee v. Kaufman, 15 
 Fed. Cas., 191.) 
 
 If title good, purchase must be com- 
 pleted.— Where the head of a department 
 under authority of an act of Congress made a 
 contract for the purchase of land which stipu- 
 lated for payment of the agreed price when the 
 Attorney General approved the title and the 
 conveyance was executed, held that, after the 
 execution of the deed by the vendors and the 
 Attorney General certified that a valid title 
 to the land had been thereby vested in the 
 United States, the head of the department had 
 no power to make any new contract of purchase 
 for the same or other property, and the vendors 
 were entitled to receive the purchase money. 
 (10 Op. Atty. Gen., 34.) 
 
 Duty of the Attorney General. — This law 
 does not require the Attorney General to in- 
 quire into and report upon the fact or question, 
 whether the State in which the land lies has 
 consented to the purchase. That was supposed 
 to be a patent fact which needed no examina- 
 tion; yet it is obvious that difficulties may 
 arise upon that point of fact, requiring a nice 
 and hypercritical examination of the State's 
 act of consent, which is often incumbered with 
 conditions and reservations. (10 Op. Atty. 
 Gen., 34.) 
 
 The Attorney General, in certifying the title 
 of land purchased by the Government, must 
 look at the question as one of pure law, and 
 can not relax the rule on account either of de- 
 sirableness of the object or the smallnessof the 
 value of the land. (6 Op. Atty. Gen., 432.) The 
 validity of titleis a question of law. (12 Comp. 
 Dec, 691.) 
 
 When the Attorney General, in passing upon 
 the validity of titles to property purchased by 
 
 286 
 
Justice Depaxtment. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 360. 
 
 the United States, certifies that the title will be 
 good upon the release of certain mortgages, it is 
 proper that the sufiiciency of the releases should 
 be decided by him, and not by the Comptroller 
 of the Treasury upon the question of payment 
 for the land. (1 Comp. Dec, 348.) 
 
 Where question is submitted to the Comptrol- 
 ler of the Treasury as to legality of a proposed 
 payment for certain buildings and outfit, but 
 back of the question of expenditure of the 
 money is that of the acquisition of the site, this 
 involves questions of law unconnected with any 
 expenditure of public moneys, and hence not 
 within the comptroller's jurisdiction. There- 
 fore suggested that the opinion of the Attorney 
 General should be obtained upon the primary 
 question involved in the acquisition of the site. 
 (5 Comp. Dec, 682. But see 6 Comp. Dec, 
 791.) 
 
 Regardless of whether this section be 
 applicable or not, the validity of titles to 
 lands proposed to be acquired should be sub- 
 mitted to the Attorney General as a wise pre- 
 caution, before erecting structures thereon. (28 
 Op. Atty. Gen., 413, 463.) 
 
 Though the opinion of the Attorney General 
 is not required in a particular case as to the 
 validity of the title, as a prudential measure, 
 for the security of the Government, it would 
 seem to be highly expedient to obtain his opin- 
 ion. (13 Op. Atty. Gen., 131. But see 12 
 Comp. Dec, 691.) 
 
 Lands incumbered by outstanding 
 liens. — There is nothing in this law that forbids 
 the j)urchase of land incumbered by outstand- 
 ing liens which have not yet matured; but in 
 such case the department making the purchase 
 should stipulate with the vendors that the 
 amount of the purchase money necessary to pay 
 off the incumbrances shall be withheld until 
 they are due, when, if they are discharged by 
 the vendors the purchase money so withheld 
 shall be paid, or if not then discharged by the 
 vendors, that the retained purchase money 
 shall be applied by the Government to their 
 payment. (10 Op. Atty. Gen., 353.) 
 
 There is no law which prohibits the United 
 States from purchasing property incumbered 
 by liens. (12 Comp. Dec, 691, 697. See also 
 1 Comp. Dec, 348.) 
 
 IV. Consent of Legislature. 
 
 Consent of constitutional convention 
 not sufBLcient. — An ordinance passed by the 
 constitutional convention of a State, purporting 
 to cede jurisdiction over land purchased by the 
 United States, is not a consent to the purchase 
 by the legislature of the State, within the sense 
 of the Constitution and this section. Such a 
 body is not "the legislature of the State." (12 
 Op. Atty. Gen., 428.) 
 
 Consent to use of land not consent to 
 purchase. — The provisions of this section are 
 not satisfied by an act which contains neither 
 an assent to the purchase nor a grant of juris- 
 diction. It merely gives the consent of the 
 State to the use of the land for a specific pur- 
 pose, which consent is declared to be "as pro- 
 vided in the 16th clause of the 8th section of 
 the 1st article of the Constitution of the United 
 States and in the acta of Congress in such case 
 made and provided." I find nothing in that 
 
 clause of the Constitution which is applicable 
 to the subject, and am unable to determine 
 what particular statute is referred to by the 
 words "acts of Congress in such case made and 
 provided." (13 Op. Atty. Gen., 460; compare 
 file 14560-174, Apr. 19, 1916, with reference to 
 statute of Illinois in which same error was 
 made.) 
 
 Consent not necessary before pur- 
 chase. — There is nothing in the Constitution 
 nor in this section which prohibits the United 
 States purchasing land within a State without 
 the consent of the State legislature; but when 
 land is purchased by them in a State without 
 such consent, the United States can not exer- 
 cise "exclusive legislation" over the place. 
 (10 Op. Atty. Gen., 34; 15 Op. Atty. Gen., 212; 
 3 Comp. Dec, 530. Compare Lee v. Kaufman, 
 15 Fed. Cas., 191.) 
 
 The Comptroller of the Treasury will not 
 render a decision as to the sufficiency of a 
 general statute of a State consenting to pur- 
 chases of lands by the United States when it 
 appears that purchase of the particular land in 
 question had not been authorized by Congress, 
 as required by section 3736, Revised Statutes, 
 (7 Comp. Dec, 524.) 
 
 Consent necessary before improvements 
 are made. — Under this section, no money can 
 be expended upon the lands mentioned therein, 
 for any purpose whatever, until consent of the 
 legislature has been given. It is hardly to be 
 presumed that Congress would authorize the 
 expenditure of money for the preparation of a 
 lot for the erection of a building and not for the 
 erection of the building itself. (3 Comp. Dec, 
 530. See also 10 Op. Atty. Gen., 34; 15 Op. Atty. 
 Gen., 212; 17 Comp. Dec, 242.) 
 
 Consent sufficient although certain 
 rights reserved. — In acts of the different 
 State legislatures giving consent to the pur- 
 chase of land by the United States, as well as 
 in their acts expressly ceding jurisdiction over 
 such lands, it is usual to reserve to the State 
 the right to serve on the land purchased its civil 
 and criminal process, and a reservation of juris- 
 diction to that extent has always been regarded 
 as consistent with the requirements of the pro- 
 vision in section 355. (20 Op. Atty. Gen., 611; 
 23 Op. Atty Gen., 254; 24 Op. Atty. Gen., 617; 
 Railroad Co. v. Lowe, 114 U. S., 525.) 
 
 Where law of State contains a proviso that all 
 civil and criminal process issued under author- 
 ity of the State or any oflicer thereof may be 
 executed on the lands so ceded, and within the 
 fortifications which may be erected thereon, in 
 the same way and manner as if such lands had 
 not been ceded, such process must, of course, 
 be for acts done within and cognizable by the 
 State. It can not be inferred from such proviso 
 that it was intended that the State should have 
 a right to punish for acts done within the ceded 
 lands. The whole apparent object is answered 
 by considering the clause as meant to prevent 
 these lands from becoming a sanctuary for fugi- 
 tives from justice for acts done within the 
 acknowledged jurisdiction of the State. This 
 proviso leaves the sole and exclusive jurisdic- 
 tion of the lands in question in the United 
 States. (U. S. v. Cornell, 25 Fed. Cas. No. 
 14867, per Story, Circuit Justice; U. S. v. 
 Meagher, 37 Fed. Rep., 875; U. S. v. Travere, 
 
 287 
 
Sec. 355. 
 
 Pt. 2. REVISED STATUTES. 
 
 Justice Department. 
 
 28 Fed. Caa. No. 16537; U. S. v. Davis, 25 Fed. 
 Cas. No. 14930, cited in Lasher v. State, 30 
 Tox. App., 387, 17 S. W., 1065; Sinker. Reese, 
 19 Ohio St., 318.) 
 
 The reservation which has usually accom- 
 panied the consent of the States, that civil and 
 criminal process of the State courts may be 
 served in the places purchased, is not considered 
 as interfering in any respect with the supremacy 
 of the United States over them; but is admitted 
 to prevent them from becoming an asylum for 
 fugitives from justice. (Fort Leavenworth R. 
 R. Co. V. Lowe, 114 U. S., 525.) 
 
 The e.xpression reserving to the State its 
 jurisdiction, so far aa to have a right to execute 
 all civil and criminal process lawfully issued 
 under the authority of the State, means, aa 
 mav not be incompatible with Federal juris- 
 diction. (7 Op. Atty. Gen., 628, 632.) 
 
 An act providing that "nothing herein con- 
 tained shall be so construed as to prevent the 
 ofRcers of this State from executing any process 
 whatever within the jurisdiction hereby directed 
 to be ceded to the United States," must be 
 understood to embrace only such process as 
 may lawfully run within such premises, 
 notwithstanding and without derogation of or 
 conflict with the jurisdiction acquired by the 
 United States. (7 Op. Atty. Gen., 628, 635.) 
 
 By legislative as well as judicial construction 
 the right retained by States to serve civil and 
 criminal process has been regarded as con- 
 sistent with exclusive Federal jurisdiction. 
 This is shown by act March 2, 1795 (1 Stat., 426), 
 providing that "Where cessions have been or 
 hereafter may be made by any State of juris- 
 diction of places where lighthouses, beacons, 
 buoys, or public piers have been erected and 
 fixed or may by law be provided to be erected 
 or fixed, with reservation that process, civil 
 and criminal, issuing under the authority 
 of such State may be executed and served 
 therein, such cessions shall be deemed sufficient 
 under the laws of the United States providing 
 for the supporting or erecting of lighthouses, 
 beacons, buoys, and public piers. * * * 
 Where any State hath made or shall make a 
 cession of jurisdiction for the purposes afore- 
 said without reservation, all process, civil and 
 criminal, issuing under the authority of such 
 State or the United States may be served and 
 executed within the places the jurisdiction of 
 which has been so ceded, in the same manner 
 as if no such cession had been made." (9 Op. 
 Atty. Gen., 263.) 
 
 Consent insufficient where reservations 
 incompatible with Federal jurisdiction. — 
 The settled construction of the Department of 
 Justice is that the "consent" of the legisla- 
 ture of a State to the purchase of lands therein 
 by the United States, required by section 355, 
 Revised Statutes, must be free from any condi- 
 tions or reservations inconsistent with the exer- 
 cise by Congress of ' 'exclusive legislation" there- 
 over. (24 Op. Atty. Gen., 617.) 
 
 It is manifest that a reservation to the State 
 of the right to administer its criminal laws in the 
 place purchased, is inconsistent with the 
 exercise of "exclusive legislation" thereover 
 by Congress, as it leaves to the State the cog- 
 nizance of offenses against its laws committed 
 
 thereon as fully as the same existed before 
 such acquisition. (24 Op. Atty. Gen., 617.) 
 
 A condition that, "if the purposes of this 
 grant should cease, or there should be for five 
 years consecutively a failure upon the part of 
 the United States to use the said place for any 
 of the purposes aforesaid, then the jurisdiction 
 hereby granted shall cease and determine," 
 is not objectionable. (7 Op. Atty. Gen., 628.) 
 
 Where a State's consent to the purchase of 
 land by the United States provides that the 
 State 'shall forever retain concurrent jurisdic- 
 tion over any such place to the extent that all 
 legal and military process issued under the au- 
 thority of the State may be executed any- 
 where on such place or in any building thereon 
 or any part thereof, and that any offense against 
 the laws of the State committed on such place 
 may be tried and punished by any competent 
 court or magistrate of the State, it does not 
 satisfy the provisions of section 355, Revised 
 Statutes (20 Op. Atty. Gen., 611, quoting and 
 following 8 Op. Atty. Gen., 419, holding that it is 
 impossible to allow the courts of the State 
 jurisdiction of crimes committed on such sites, 
 to the exclusion of, or even in concurrence "with, 
 the proper jurisdiction of the United States. 
 But see file 7101-10, Apr. 17, 1908, authorizing 
 expenditures of public moneys on improve- 
 ments at naval proving ground, Indianhead, 
 Md., although the State expressly retained 
 jurisdiction _ to execute its criminal process 
 therein against persons charged with offenses 
 committed "Mdthin or without" the limits of 
 said lands. See below, ' 'VI. Jurisdiction Naval 
 Reservations.") 
 
 As the State's consent "is coupled with an 
 express retention of jurisdiction over offenses 
 against its laws committed on the premises, 
 this qualification of the consent is such as, in 
 my opinion, renders it insufficient to satisfy 
 that provision," viz, section 355, Revised Stat- 
 utes. (20 Op. Atty. Gen., 611.) 
 
 I should hesitate to advise the United States 
 to accept a cession which in terms reserved the 
 full concurrent jurisdiction of the State in 
 order to guard against controversy as to whether 
 the consent would be legally inoperative, or 
 whether the condition and reservation would 
 be void, or whether the jurisdiction would be 
 deemed concurrent. (7 Op. Atty. Gen., 628.) 
 
 Effect of consent coupled with incom- 
 patible reservation. — It is not perfectly 
 clear from the authorities what is the effect of 
 such a reservation; tliat is, whether the consent 
 expressed would be legally [in]operative, or 
 the reservation alone void. (24 Op. Atty. 
 Gen., 617.) 
 
 If the legislative act of the State wherein the 
 land lies amounts to a consent to the purchase 
 of the property by the United States, any ex- 
 ceptions, reservations, or qualifications con- 
 tained in the act are void, because the consent 
 being given by the legislature the Constitution 
 vests in Congress exclusive legislation over the 
 place, beyond the reach both of Congress and 
 the legislature. If the act does not amount 
 to a consent to the purchase, it is null. (10 Op. 
 Atty. Gen., 34.) 
 
 If the State had simply passed an act con- 
 senting to the purchase, the constitutional 
 
 288 
 
Justice Department. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 855. 
 
 consequences would certainly have ensued 
 and jurisdiction might have been assumed. 
 As it is, however, the conclusion seems to me 
 questionable. The declared retention of juris- 
 diction is an express qualification of the assent, 
 and such a qualification as causes it to fail to 
 satisfy the act of Congress, if it does the Con- 
 stitution. (8 Op. Atty. Gen., 102; see also 8 
 Op. Atty. Gen., 30.) 
 
 There is a clear distinction between acts in 
 which the reserv^aticn of jurisdiction is made an 
 express condition of the consent, and an act 
 which unequivocally expresses the consent of 
 the legislature and does not make any objec- 
 tionable reservation which may contain an 
 absolute and inseparable condition of the 
 consent. In the former case it has been de- 
 cided that such consent does not satisfy the law 
 (citings Op. Atty. Gen., 102; 8 Op. Atty. Gen., 
 418; 20 Op. Atty. Gen., 611). In the latter case, 
 there seems to be no good reason for holding that 
 the reservation invalidates the entire act. (24 
 Op. Atty. Gen., 617.) 
 
 Where the consent of the legislature to the 
 purchase or condemnation of lands within the 
 State by the United States for public purposes 
 is plainly and unequivocally given, and there 
 is nothing whatever in any other part of the act 
 to indicate that the reservation of jurisdiction 
 which it contains is made an express condition of 
 the consent, the act may be taken as satisfying 
 the requirements of section 355, Revised Stat- 
 utes, and no further cession of jurisdiction is 
 legally required. (24 Op. Atty. Gen., 617.) 
 
 It may well be doubted whether Congress is, 
 by the terms of the Constitution, at liberty to 
 purchase lands for forts, dockyards, etc., with 
 the consent of the State legislature, where such 
 consent is so qualified that it will not justify the 
 exclusive legislation of Congress there. It 
 may well be doubted if such consent be not 
 utterly void. (Fort Leavenworth R. R. Co. v. 
 Lowe, 114 U. S., 534, quoting U. S. v. Cornell, 
 2 Mason, 60, 25 Fed. Cas. No. 14867.) 
 
 The Executive can not lawfully expend 
 money on a site for public uses, purchased 
 with assent of the State in wliich it lies, if such 
 assent be coupled with express refusal of the 
 State to cede jurisdiction to the United States. 
 (8 Op. Atty. Gen., 102; seealsoSOp. Atty.Gen., 
 (30; Op. Atty. Gen., Mar. 3, 1908, file 7101-6.) 
 
 In order to guard against controversies, 
 I should hesitate to advise the United States to 
 accept a cession wliich in terms reserved the 
 full concurrent jurisdiction of the State. (7 
 Op. Atty. Gen., 628.) 
 
 In such cases, the Government would enter 
 upon the land with explicit notice of contro- 
 versy on the part of the State. Other States 
 might follow the example, greatly to the in- 
 convenience of the United States. (8 Op. 
 Atty. Gen., 102; see also 8 Op. Atty. Gen., 30.) 
 
 If any conflicting claims of jurisdiction should 
 arise after the purchase between the two 
 Governments, they would be judicial ques- 
 tions. (10 Op. Atty. Gen., 34.) 
 
 V. Jurisdiction of the United States. 
 
 Where State consents to purchase. — 
 
 When the United States acquire lands within 
 
 the limits of a State by purchase, with the 
 consent of the legislature of the State, for the 
 erection of forts, magazines, arsenals, dock- 
 yards, and other needful buildings, the Con- 
 stitution confers upon them exclusive juris- 
 diction of the tract so acquired. (Fort Leaven- 
 worth R. R. Co. V. Lowe, 114 U. S., 525, 539; 
 Chicago & Pacific Ry. Co. v. McGlinn, 114 
 U. S., 542; Benson v. U. S., 146 U. S., 325.) 
 
 The purchase of land in a State by the General 
 Goverument, with legislative consent, does not, 
 ipso facto confer upon the General Govern- 
 ment exclusive jurisdiction, unless the pur- 
 chase is for a fort or for some other purpose 
 distinctly named in Article I, section 8, of the 
 Constitution. (In re Kelly, 71 Fed. Rep., 545.) 
 
 Cession of jurisdiction by the State may take 
 place in two ways; indirectly, by an act of the 
 State legislature consenting to the purchase of 
 the lancl by the United States; and directly, 
 by an act of the State legislature granting the 
 jurisdiction to the United States. (l3 Op. Atty. 
 Gen., 460; V.^.v. Tucker, 122 Fed. Rep., 520.) 
 
 It is thoroughly settled by numerous ad- 
 judications that all such Federal jurisdiction 
 as the Constitution contemplates is acquired by 
 the United States in the mere consent of the 
 State to the purchase; and that upon such con- 
 sent the jurisdiction of the State ceases and that 
 of Congress comes in, by virtue of the Constitu- 
 tion. _ (7 Op. Atty. Gen., 628.) 
 
 This law does not require the cession of juris- 
 diction, exclusive or otherwise. When the 
 legislature consents to the purchase, the Con- 
 stitution provides for exercising exclusive 
 legislation, which is full jurisdiction, over all 
 places so purchased for the erection of dock- 
 yards, etc. (9 Op. Atty. Gen., 129.) 
 
 " 'Exclusive legislation' signifies exclusive 
 jurisdiction." (6 Op. Atty. Gen., 578.) 
 
 Section 355 proliibits the expenditure of 
 money only upon any site or land purchased by 
 the United States until the written opinion of 
 the Attorney General shall be had in favor of the 
 validity of the title and until the consent of the 
 legislature of the State in which the land or site 
 may be to such purchase has been given. It 
 does not limit the expenditure of money to 
 cession of jurisdiction. (Op. Atty. Gen., 
 Mar. 3, 1908, file 7101-6.) 
 
 The purchase of lands by the United States 
 for public purposes within the territorial limits 
 of a State does not of itself oust the jurisdiction 
 of sovereignty of such State over lands so pur- 
 chased . But when a purchase of lands for any 
 of the Constitutional purposes is made by the 
 National Government, and the State le.gislature 
 has given its consent to the purchase, the land 
 so purchased by the very terms of the Constitu- 
 tion, ipso facto falls within the exclusive legis- 
 lation of Congress, and the State jurisdiction 
 is completely ousted. Exclusive jurisdiction 
 is the necessary attendant upon exclusive leg- 
 islation. (U. S. V. Cornell, 25 Fed. Cas. No. 
 14867, per Storj', Circuit Justice.) 
 
 Where the State consents to the purchase, 
 with reservation of power to serve civil and 
 criminal process, and the United States accepts 
 such condition, it follows that the officers of the 
 State, in executing such process, act under the 
 authority of the United States. No offenses 
 
 289 
 
Sec. 366. 
 
 Pt.2. REVISED STATUTES. 
 
 Justice Department. 
 
 committed within the territory eo purchased 
 are committed iijiainft the laws of the State, nor 
 can such offenses be punishable by the courta 
 of the State unless the Congress of the United 
 States should give said courts jurisdiction 
 thereof. (Commonwealth v. Clary, 8 Mass., 72; 
 U. S. r.Travers, 28 Fed. Cas. No. 16537; file 
 67G0-21, July in, 1911.) 
 
 Where jurisdiction expressly ceded. — 
 The law from which section 355 is taken re- 
 quired "the consent of the legislature" and 
 provaded in another section that application 
 should be made to the State for "a cession of 
 jurisdiction." Thus it appears that Congress 
 understood "consent to the purchase" and 
 "cession of jurisdiction" as concurrent, if not 
 identical facts, and rightfully. (7 Op. Atty. 
 Gen., 628.) 
 
 It has become usual in the action of the legis- 
 latures of the States in these cases not to stop at 
 consent to the purchase, but to add cession of 
 jurisdiction in express terms, but most fre- 
 quently with reservation of certain concurrent 
 jurisdiction to the State. (7 Op. Atty. Gen., 
 628; 9 Op. Atty. Gen., 129.) 
 
 The effect of all such actions is to confer on 
 the United States the whole jurisdiction of the 
 Constitution — that is, rights of Federal legisla- 
 tion coextensive with the subject matter. (7 
 Op. Atty. Gen., 628; U. S. v. Carter, 84 Fed. 
 Rep., 622; In re Ladd, 74 Fed. Rep., 31; West- 
 ern Union Tel. Co. v. Chiles, 214 U. S., 274; 
 U. S. V. Tucker, 122 Fed. Rep., 518, citing 
 Palmer v. Barrett, 162 U. S., 402; Sharon v. 
 Hill, 24 Fed. Rep., 729; Martin v. House, 39 
 Fed. Rep., 694; Bannon v. Burnes, 39 Fed. 
 Rep., 899; State v. Mack, 23 Nev., 359, 47 Pac, 
 763; Foley v. Shriver, 81 Va., 572.) _ 
 
 Of course the property of the United States 
 in such places is not subject to the jurisdiction 
 of the State. Civil acts done there will be of 
 Federal resort; and crimes committed there 
 must be justiciable by the courts of the United 
 States. On the other hand, such ceded lands 
 within a State are not to be made places of 
 refuge from its civil or criminal jurisdiction or 
 of escape from civil obligations due to any of its 
 inhabitants. (7 Op. Atty. Gen., 628.) 
 
 It is competent for the State in relinquishing 
 its sovereignty and ceding it to the United 
 States to reserve the right to serve civil and 
 criminal process; but where such a reservation 
 was not made the United States has exclusive 
 jurisdiction over the reservation, and the sheriff 
 of the county within which it is situated has no 
 power to serve thereon any process whatsoever 
 issued by a court of that State, for it is an ele- 
 mentary principle of law that a judicial officer 
 can not serve process beyond his jurisdiction. 
 (23 Op. Atty. Gen., 254.) 
 
 Where neither consent nor cession of 
 jurisdiction. — Where lands are acquii-ed in 
 any other way by the United States within the 
 limits of a State than by purchase with its con- 
 sent [and jurisdiction is not ceded by the State], 
 they will hold the lands subject to this qualifi- 
 cation: That if upon them forts, arsenals, or 
 other public buildings are erected for the use 
 of the General Government, such buildings, 
 with their appurtenances, as instrimientalities 
 for the execution of its powers, will be free from 
 any such interference and jurisdiction of the 
 
 State as would destroy or impair their effective 
 use for the purjioses designed. Such is the law 
 with reference to all instrumentalities created 
 by the General Government. Their exemption 
 from State control is essential to the indepen- 
 dence and sovereign authority of the United 
 States wdthin the sphere of their delegated 
 powers; but when not used as such instru- 
 mentalities the legislative power of the State 
 over the places acquired will be as full and com- 
 plete as over any other places within her limits. 
 (Fort Lea venwoVthR. R. Co. v. Lowe, 114 U. S., 
 525, 539; Chicago & Pacific Ry. Co. v. McGlinn, 
 114 U. S., 542; Benson v. U. S., 146 U. S., 325; 
 U. S. V. Tiernev, 28 Fed. Cas. No. 16517; 
 U. S. V. Tucker, 122 Fed. Rep., 518.) 
 
 WTiere the State has neither consented to the 
 purchase nor ceded jurisdiction to the United 
 States, the State retains complete and ex- 
 clusive political jurisdiction over such land, 
 and there can be no question that persons there 
 committing crime are subject to trial and pun- 
 ishment by the State and not by the United 
 States. (U. S. v. San Francisco Bridge Co.. 88 
 Fed. Rep., 891, 894; U. S. v. Penn, 48 Fed. 
 Rep., 669; In re O'Connor, 37 Wis., 384.) 
 
 Mere o^vnership and occupancy by the United 
 States of land within a State do not suffice to 
 oust the jurisdiction of the State, even when 
 such occupancy is with the full knowledge and 
 tacit consent of such State, and even though 
 the title of the United States antedates the 
 existence of the State (7 Op. Atty. Gen., 573); 
 where no reservation was made by Congress, 
 either in an act giving existence to a new Terri- 
 tory, or in the act admitting the Territory as a 
 State. (Gary v. State, 4 Kans., 49; U. S. v. 
 Stahl. 27 Fed. Cas. No. 16373.) 
 
 Status of residents. — Persons residing in 
 places so ceded are in many respects exterri- 
 torialized, so as not to be subject to personal 
 taxation by the State, not to acquire a pauper 
 settlement therein, not to be entitled to the 
 benefit of its public schools, nor to the enjoy- 
 ment of its elective franchise. (7 Op. Atty. 
 Gen., 628.) 
 
 When Congress possesses exclusive legislative 
 power over a naval reservation, the laws of the 
 State can not be allowed any operation or effect 
 within the limits thereof. (Western Union 
 Tel. Co. V. Chiles, 214 U. S., 274— suit to recover 
 penalty provided by laws of Virginia for non- 
 receipt of a telegram.) 
 
 WTiere the general consent of the State is 
 given to the purchase and where there is no 
 other condition or reservation in the act grant- 
 ing such consent but that of a concurrent juris- 
 diction of the State for the serving of civil 
 process and criminal process against persons 
 charged with crimes committed out of such 
 territory, the Government of the United States 
 has the sole and exclusive jurisdiction over 
 such territory for all purposes of legislation and 
 jurisprudence with the single exception ex- 
 pressed, and consequently no persons are 
 amenable to the laws of the State for crimes and 
 offenses committed within said territory, and 
 persons residing within the same do not acquire 
 the civil and political pri^dIeges nor do they 
 become subject to the ci^dl duties and obliga- 
 tions of inhabitants of the towns within which 
 such territory is situated. (Fort Leavenworth 
 
 290 
 
Justice Depaxtment. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 355. 
 
 R. R. Co. r. Lowe, 114 U. S., 536, citing 1 
 Met., 580.) 
 
 Persons in the employment of the United 
 States actually residing in the limits of the 
 armory at Harpers Ferry do not possess the 
 civil and political rights, nor are they subject 
 to taxation and other obligations of citizens of 
 the State of Virginia. The privilege of not 
 paying taxes in such a case is a personal one of 
 the party claiming it and not, like the exemp- 
 tion of property of the United States from 
 taxation, a right of the Government as such 
 which it would be the duty of the Government 
 to maintain. (6 Op. Atty. Gen., 577.) 
 
 A State may cede to the United States ex- 
 clusive jurisdiction over a tract of land within 
 its limits and may prescribe conditions to the 
 cession if they are not inconsistent with the 
 effective use of the property for the purposes 
 intended . If a State thus ceding to the United 
 States exclusive jurisdiction over a tract within 
 its limits reserves to itself the right to tax private 
 property therein, and the United States do not 
 dissent, their acceptance of the grant vnth. the 
 reservation will be implied. (Fort Leaven- 
 worth R. R. Co. V. Lowe, 114 U. S., 525.) 
 
 WTiere an act of Ohio ceding to the United 
 States its jurisdiction over lands within that 
 State for the purposes of a National Asylum 
 for Disabled Volunteer Soldiers, pro\'ided that 
 nothing in said act should be construed to pre- 
 vent the officers, employees, and inmates of 
 the asylum who were qualified voters of the 
 State from exercising the right of suffrage at 
 all township, county, and State elections in 
 the township in which the national asylum 
 should be located, it was held that, upon the 
 pm'chase of the territory by the United States 
 with the consent of the legislature of the State, 
 the General Government became invested 
 with exclusive jurisdiction over it and its ap- 
 purtenances in all cases whatsoever; and that 
 the inmates of such asylum resident within the 
 territory, being within such exclusive juris- 
 diction, were not residents of the State so as to 
 entitle them to vote within the meaning of the 
 State constitution, which conferred the elec- 
 tive franchise upon its residents alone. (Sinks 
 V. Reese, 19 Ohio St., 306; Ft. Leavenworth 
 R. R. Co. V. Lowe, 114 U. S., 536.) [The case of 
 Sinks t'. Reese was disapproved in In re O'Con- 
 nor, 37 Wis., 379, which latter case was in 
 effect reaffirmed in Clarke v. Milwaukee Co., 
 53 Wis., 65, 9 N. W., 782. The O'Connor case 
 held that act of State legislature purporting to 
 cede jurisdiction to the United States was void, 
 as it is not competent for the legislature to ab- 
 dicate its jurisdiction over its territory except 
 where the lands are purchased by the United 
 States for the specific pm-poses contemplated 
 by the Constitution. The cases were reviewed 
 in In re Kelly, 71 Fed. Rep.. 545, concerning 
 jurisdiction of Northwestern Branch National 
 Home for Disabled Volunteer Soldiers.] 
 
 Right of Secretary to grant revocable 
 license for use of Government land. — The 
 Secretary' of War has authority to grant a re- 
 vocable license to a railway company to lay a 
 single track on a Government reserv^ation. 
 Long-continued exercise of a power of this 
 kind, and the open and notorious use of Gov- 
 ernment reservations bv such licensees with- 
 
 out legislative objection from Congress and 
 without the adoption of any legislative rule 
 upon the subject, impUes the tacit assent of 
 Congress to this custom. At the same time 
 this custom can not be maintained upon any 
 ground except benefit to the public interests, 
 either directly or indirectly. It can not be 
 used as a basis for granting, under the guise of 
 a temporary license, a substantially permanent 
 right to maintain a raUroad. (22 Op. Atty. 
 Gen., 245; see also 21 Op. Atty. Gen., 537, 565; 
 22 01). Atty. Gen., 544.) 
 
 While the opinions cited were confined to the 
 question of granting a license to a private per- 
 son for the use of Government reser\-ations, 
 yet the same principles apply wherever the 
 proposal is to permit the use of the property of 
 the United States Government by persons or 
 agencies other than its own departments. 
 Specifically, held applicable to use of naval 
 reservations by government of Porto Rico. 
 (29 Op. Atty. Gen., 205.) 
 
 Power of Congress to limit or surrender 
 its jurisdiction. — In numerous cases, espe- 
 cially in acts authorizing the acquisition of 
 sites for public buildings. Congress has latterly 
 required from the States a cession of jurisdic- 
 tion for all purposes excepting "the adminis- 
 tration of the criminal laws of the State and the 
 service of civil process therein." (See 21 Stat., 
 142; 22 Stat., 94, 152, 161; 23 Stat., 282; 24Stat., 
 544; 25 Stat., 444; 26 Stat., 724.) "In these cases, 
 by force of the exception, there is left to the 
 State the administration of its criminal laws 
 over the premises acquii'ed by the General 
 Government, and consequently the cognizance 
 of offenses against its laws committed thereon, 
 as fully as the same existed before such acqui- 
 sition." (20 Op. Atty. Gen., 611.) 
 
 WTiere the State assents to the purchase, no 
 offenses committed within the territory so pur- 
 chased can be punishable by the courts of the 
 State "unless the Congress of the United States 
 shall give to said courts jurisdiction thereof." 
 (Commonwealth v. Clary, 8 Mass., 72; file 
 6769-21, July 19, 1911.) 
 
 In this connection, consult Fort Leaven- 
 worth R. R. Co. V. Lowe, 114 U. S., 534, quot- 
 ing U. S. V. Cornell, 25 Fed. Cas. No. 14867, to 
 the effect that ' ' It may well be doubted whether 
 Congress is, by the terms of the Constitution, 
 at liberty to purchase lands for forts, dock- 
 yards, etc., with the consent of the State legis- 
 lature, where such consent is so qualified that 
 it will not justify the exclusive legislation of 
 Congress there." See also 10 Op. Atty. Gen., 
 34, holding that, if the act of the State legisla- 
 ture amount to consent, any exceptions, reser- 
 vations, or qualifications contained in the act 
 are void, because the consent being given by 
 the legislature, the Constitution vests in Con- 
 gress exclusive legislation over the place be- 
 yond the reach both of Congress and the legislature, 
 and in In re Ladd, 74 Fed. Rep., 31, holding 
 that jurisdiction having once been ceded by the 
 State and accepted by the United States, it 
 "could not be recaptured by the action of the 
 State alone." 
 
 By joint resolution, approved October 22, 
 1914, Congress ceded jurisdiction to the State 
 of California over certain lands in the Presidio 
 of San Francisco and Fort Mason Military Res- 
 
 291 
 
Sec. 356. 
 
 Pt. 2. REVISED STATUTES. 
 
 Justice Department. 
 
 ervations dnrinp thoir occupancy by the 
 Panaina-Pacilic International Exposition Co., 
 the United States having possessed exclusive 
 jurisdiction over said reservations. (See also 
 act Jan. 21. 1871 (16 Stat., 399), and in In re 
 Kelly, 71 Fed. Rep., 545.) 
 
 VI. Jurisdiction, Naval Reservations. 
 
 Miscellaneous decisions. — U. S. v. Travers, 
 28 Fed. Cas. No. I(j537 (navy yard, Boston, 
 Mass.); U. S. v. Carter, 84 Fed. Rep., 622 (naval 
 vessel in Wallabout Bay, at Cob Dock, navy 
 yard, New York); Western Union Tel. Co. v. 
 Chiles, 214 U.S. ,274 (naval vessel at navy yard, 
 Norfolk, Va.); U. S. v. Davis, 25 Fed. Cas. No. 
 14930 (marine hospital, Chelsea, Mass.); U. S. 
 V. Dolan, 25 Fed. Cas. No. 14978, 5 Blatch., 284 
 (navy yard. New York); U. S. v. Bevans, 3 
 Wheat., 336 (naval vessel in Boston Harbor); 7 
 Op. Atty. Gen., 573 (na\'y yard, Pensacola, 
 Fla.); file 5716-486 (Pensacola); file 6769-21 
 (navy yard, New York); file 6807 (navy yard. 
 New York); file 6769-21 (naval proving ground, 
 Indianhead, Md.); Op. Atty. Gen., Mar. 3, 
 1908, file 7101-6 (naval proving ground, Indian- 
 head, Md.); file 7101-10, Apr. 17, 1908 (naval 
 pro\'ing ground, Indianhead, Md.); file 26524- 
 57 (navy yard, Philadelphia, Pa.); files 14560- 
 174, Apr. 19, 1916, and 26250-331, Feb. 24, 1912, 
 naval training station, Great Lakes, 111. Ex 
 parte Tatem, 23 Fed. Cas. No. 13759 (naval 
 vessel at navy yard, Norfolk, Va.); file 26283- 
 988:2 (navy yard. New York); General Order 
 No. 121, September 17,1914 (general instructions 
 relative to jurisdiction, civil and naval author- 
 ities). As to naval reservations in State of 
 Maryland and particularly Indianhead, see 
 below "Right of coroners to hold inquests on 
 reservations." 
 
 Service of process on persons in naval 
 or civil service. — The reservation of power to 
 the State to serve civil or criminal process 
 within the limits of a naval reservation em- 
 powers the State or municipal authorities forci- 
 bly to take possession of persons in the naval 
 or civil service within such limits, whether on 
 shore or on vessels permanently stationed at the 
 yard, subject to the qualification that, in order 
 that such service of process may not interfere 
 with the operations of^the Federal Government, 
 the person deputed to perform that duty should 
 first obtain the permission of the commandant, 
 and such permission should only be withheld 
 upon the most forcible and cogent reasons of 
 public necessity. (File6769-21, July 19, 1911.) 
 
 The principle that no State has the right to 
 interfere with the instrumentalities of the 
 Federal Government has been recognized from 
 the earliest davs of our Government. (File 
 6769-21, July 19, 1911, citing Raiboad Co. v. 
 Lowe, 114 U. S., 525- Railway Co. v. McGlinn, 
 114 U. S., 542, 545; McCulIoch v. Maryland, 4 
 Wheat., 316; Osborn v. The Bank, 9 WTieat., 
 738; Dobbins v. Erie Co., 16 Pet., 435; see also 
 file 26524-57, Feb. 12, 1914.) 
 
 There is no act of Congress authorizing a 
 call by a governor for the surrender of an 
 officer of the Navy charged with having broken 
 the peace of a State, nor any law authorizing 
 an arrest by the executive with a view to a 
 forcible surrender of him for the purposes of 
 
 trial. However, advised that the accused be 
 ordered by the Navy Department to smrender 
 himself. (1 Op. Atty. Gen., 244.) 
 
 The civil authorities are not empowered to 
 ariest persons, either in the naval or the civil 
 service of the United States, within the limits 
 of a naA^ yard, whether on shore or on board 
 vessels at the yard, even where jurisdiction has 
 been retained by the State to serve process, 
 without first ol)taining the permission of the 
 commandant, to the end that such service of 
 process shall not interfere with or obstruct the 
 operations of the United States Government. 
 (File 6769-21, July 19, 1911.) However, the 
 application to the commanding officer ia not 
 jurisdictional, the matter being one that does 
 not go to the jurisdiction of the civil court 
 issuing the process. Accordingly the want of 
 an application to the commanding officer would 
 be a mere informality which might make the 
 warrant of arrest irregular but would not make 
 it void or Liable to be attacked upon a habeas 
 corpus proceeding. (Attorney General to Sec- 
 retary of the Navy, Nov. 14, 1914, file 7657- 
 261:1.) 
 
 It is not intended that there should be any 
 friction between the civil and naval authorities 
 in this matter. Should a question arise at any 
 time the commandant should inform the local 
 authorities that the Navy Department has no 
 desire to olsstruct the operation of State laws by 
 preventing the punishment of persons in the 
 Navy or of persons in the civil service for viola- 
 tion of such laws; and that upon presentation 
 of lawful process in proper hands the person 
 wanted will invarialdy l>e delivered to the civil 
 officer or such officer will be allowed to serve 
 the process himself, whicheA^er course appears 
 the more advisable, provided that the case 
 is not one in which, l)y reason of any Federal 
 interest involved, the United States should 
 intervene. (File 6769-21, July 19, 1911.) 
 
 Commanding officers of vessels and shore 
 stations of the Navy or Marine Corps must com- 
 municate with the Secretary of the Navy and 
 await his instructions before delivering to civil 
 authorities, State or Federal, any person in 
 their custody or under their control. (G. O. No. 
 121, Sept. 17, 1914.) 
 
 Before delivering any such person to State 
 authorities for trial assurance must be obtained 
 from the State authorities that the person so 
 delivered will l:ie returned to the naval author- 
 ities at the place of his delivery without ex- 
 pense to the United States, if the naval author- 
 ities shall desire his return. (G. O. No. 121, 
 Sept. 17, 1914.) 
 
 The preceding paragraph applies even though 
 the State authorities have expressly retained 
 jurisdiction to serve civil or criminal process. 
 (G. O. No. 121, Sept. 17, 1914.) Otherwise there 
 would be an interference with instrumentali- 
 ties of the Federal Government, no appropria- 
 tion 1)eing available for the return of men to 
 naval jurisdiction under such circumstances. 
 (File 26524-57, Feb. 12, 1914.) 
 
 Even where land is purchased for use as a 
 military post without the consent of the legis- 
 lature, neither the State nor any county of the 
 State would have the right to interfere with 
 any instrumentalities necessary to the proper 
 use of such lands as a military post, and to 
 
 292 
 
Justice Depaortment. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 356. 
 
 V 
 
 render that use effective and complete. (Pundt 
 V. Pendleton, 167 Fed. Rep., 1001.) 
 
 Requisition must be made by the governor, 
 addressed to the Secretary of the Na\'y and 
 complying with the rules governing interstate 
 extradition of criminals in civil life,_in all cases 
 in which the person whose delivery is desired is 
 in the naval service and is not serving at a navy 
 yard or other place within the territorial limits 
 of the State making tlie request. (G. O. No. 
 121, Sept. 17, 1914; 2 Op. Atty. Gen., 10.) 
 
 Before delivering to the civil authorities of a 
 State any person in the naval service, "the 
 convenience of the public service requires 
 that we should know at what time his trial 
 will come on." The man may be indicted in 
 his absence, and if this is done the governor 
 will be able to inform the Navy Department 
 at what time the trial will take place. (See 
 1 Op. Atty. Gen., 244; see also file 26524-126, 
 May 17, 1915.) 
 
 A naval prisoner will not be delivered to the 
 civil authorities, Federal or State, for trial until 
 his case has lieen finally disposed of Ijy the 
 naval authorities except in certain cases where 
 his surrender is desired upon a serious charge, 
 such as felonious homicide. (G. O. No. 121, 
 Sept. 17,- 1914.) 
 
 The expression "naval prisoner" includes 
 any person serving sentence of court-martial, or 
 in custody awaiting trial by court-martial, or 
 disposition of charges against him. (G. O. No. 
 121, Sept. 17, 1914. As to definition of "cus- 
 tody" see Wales v. Whitney, 114 U. S., 564.) 
 
 Service of subpoenas by the civil authorities 
 on persons in the naval service, afloat or ashore, 
 will not be allowed until the permission of the 
 commanding officer has fiist been obtained. 
 (G. O. No. 121, Sept. 17, 1914.) 
 
 '\\Tiere an enlisted man was charged with a 
 crime against a civilian, alleged to have been 
 committed on a vessel of the Atlantic Reserve 
 Fleet at the navy yard, Philadelphia, the 
 department declined to deliver him to the 
 civil authorities of Pennsylvania on the ground 
 that the latter were without jurisdiction. 
 (File 26524-127, Mar. 23, 1915.) 
 
 Right of coroners to hold inquests on 
 reservations. — In places over which Congress 
 has exclusive power of legislation, it may un- 
 doubtedly exclude coroners and all other State 
 ofiicers from exercising their functions upon 
 such premises; but where Congress not having 
 exercised this right, a coroner enters the reser- 
 vation to investigate an accident, and no 
 government official attempts to keep him out, 
 and the Federal Government does not complain 
 of an invasion of its exclusive jurisdiction: 
 Held, that the coroner's presence and proceed- 
 ings were attended with the implied if not the 
 express sanction of both governments and were 
 demanded by the exigencies of the occasion; 
 and that he was entitled to recover his usual 
 fees from the county for holding such inquest. 
 (County of Allegheny v. McClung, 53 Pa. St., 
 
 482.) 
 
 A coroner is not authorized to hold inquests 
 on the bodies of persons dying at a place within 
 the exclusive jurisdiction of the United States; 
 but he may be permitted to enter such place to 
 hold inquests on the bodies of unknown persons 
 
 found washed upon its shores or floating in 
 the neighboring waters (McClure's Dig., 1901, 
 par. 689) ; or upon the bodies of persons dying as 
 a result of criminal acts committed upon them 
 outside the reservation (Armv Dig., 1912, p. 
 270). 
 
 If a death occurs upon lands over which the 
 United States has exclusive jurisdiction, and 
 such death was not caused by any act within 
 the acknowledged jurisdiction of the State 
 within whose boundaries such land is situated, 
 then a coroner could have no jurisdiction in the 
 matter and could not, under the reserved right 
 of the State to serve process upon such lands, 
 come upon them and hold an inquest. Further- 
 more, such a proceeding would be of no use as a 
 step in the criminal procedure of the State, 
 because the State would have no jurisdiction 
 to trv the offender. (File 6769-21, July 19, 1911; 
 see also file 26283-988:2, Jan. 18, 27, 1916.) 
 
 But if the body of a drowned person were 
 found in waters within the limits of a nav) 
 yard, and no drowning had occurred at the yard, 
 it would be proper to allow the coroner to hole 
 an inquest. (File 6769-21, July 19, 1911.) 
 
 Where a person in the naval service who has 
 been injured outside the navy yard, returns 
 thereto and dies from the injury, the coroner if 
 he should so desire should be permitted to hold 
 an inquest, because the injury was inflicted or 
 occurred while the deceased was within the 
 jurisdiction of the State. (File 6769-21, July 
 19, 1911.) 
 
 In proper cases, and when thought advisable, 
 but as not establishing a precedent or as ac- 
 knowledging any jurisdiction of the State to do 
 so, a coroner might be allowed, as a matter of 
 courtesy, to come into a navy yard to hold an 
 inquest; but before permitting such action, the 
 commanding officer or commandant should feel 
 convinced that such a course would be ad- 
 visable or accomplish some desirable end. 
 (File 6769-21, July 19, 1911.) 
 
 A coroner has the right to hold an inquest in 
 case of accident resulting in death, occurring 
 within the limits of a naval reservation where 
 concurrent jurisdiction exists. (File 3727-97.) 
 
 In the case of an enlisted man of the Navy 
 killed on board a battleship at the navy yard, 
 Philadelphia, the coroner attempted to hold an 
 inquest outside the yard and applied for 
 delivery of the enlisted man charged with the 
 homicide and against whom court-martial pro- 
 ceedings had been commenced. On advice of 
 the Department of Justice this application was 
 denied. (File 6674-29, Apr., 1907.) 
 
 By laws of Maryland (act Apr. 8, 1902, 
 amended Mar. 30, 1908) the State retained 
 concurrent jurisdiction with the United States 
 so far as that "* * * such criminal or other 
 process as shall issue under the authority of the 
 State of Maryland against any person or persons 
 charged with crimes or misdemeanors com- 
 mitted within or without the limits of the said 
 lands may be executed therein, in the same 
 manner as if no jurisdiction had been hereby 
 ceded." It appears extremely doubtful 
 whether the right of the State to serve criininal 
 process in the case of an offense committed 
 within Government land would be of much 
 avail, since the courts of Maryland would 
 
 293 
 
Sec. 355. 
 
 Pt. 2. REVISED STATUTES. 
 
 Justice Department, 
 
 certainly have no jurisdiction to try a person 
 for a crime committed within the limits of the 
 naval proving pround at Indianhead or on any 
 otlier naval reservation in that State. Never- 
 theless, the law gives the State the right to 
 serve its criminal process thereon, and such 
 right should be respected. An offender under 
 such circumstances, when called upon to plead 
 to the indictment in a State court, might inter- 
 pose a plea to the jurisdiction of such court, 
 and it is believed that such plea would be 
 sustained. It would seem further that a 
 coroner should be allowed to hold his inquest 
 if he so desires within the limits of any naval 
 reservation in the State of Maryland; but that 
 the result would be as stated, if it should be 
 found that any crime had been committed on 
 the reservation. (File 67G9-21, July 19, 1911.) 
 
 Indianhead. — The land purchased for the naval 
 proving grourid was acquired at three different 
 times, to wit: May, 1890, September, 1891, and 
 August, 1901. In 1900 there was an act passed 
 by the General Assembly of Maryland giving 
 consent to the purchase, generally, by the 
 United States of lands for the purpose of forts, 
 magazines, arsenals, coast defenses, etc., and 
 the erection of barracks, garrisons, and other 
 needful buildings. Before 1900 there was no 
 law authorizing the purchase of land in Mary- 
 land except for special purposes (lighthouse 
 stations, buoys, etc.), and the acquisition of 
 lands under certain circumstances by condem- 
 nation. The act of 1900 must be taken as 
 operating prospectively only, and therefore 
 does not cover the purchases of 1890 and 1891. 
 The land acquired in 1901 would come within 
 the act of 1900 gi\"ing consent to the purchase. 
 There was also an act passed April 5, 1906, 
 ceding jurisdiction to the United States over 
 lands acquired in Maryland, which act appar- 
 ently had reference to lands to be acquired 
 after its passage, and did not operate retro- 
 actively. The act April 8, 1902, had relation 
 to lands which had been theretofore or were 
 afterwards to be acquired, but expressly ex- 
 cepted from its operation Charles County, in 
 which Indianhead is located. (Op. Atty. 
 Gen., Mar. 3, 1908, file 7101-6.) This excep- 
 tion as to Charles County was repealed by act 
 Mar. 30, 1908. See file 7101-10, Apr. 17, 
 1908, and 7101-9.) 
 
 In an opinion rendered by the Attorney 
 General of the State of Maryland, February 
 7, 1916, it was held that the United States un- 
 questionably have exclusive jurisdiction over 
 the Naval Proving Ground, Indianhead, except 
 for the right of the State to execute process 
 upon the reservation for offenses committed 
 outside, but the State has no right to punish 
 offenses committed on the reservation. (See 
 file 6692-233:7.) 
 
 VII. Miscellaneous. 
 
 TJse of appropriations. — When in an act 
 appropriating for the purchase of additional 
 land for a public building the piece of ground 
 to be purchased is particularly described, the 
 appropriation can not be used for the purchase 
 of another tract equally suitable for the purpose 
 and at a price within the sum provided, 
 although the piece named in the act can not be 
 
 secured within the amount appropriated. 
 (2 Comp. Dec, 77.) 
 
 An appropriation for construction of a dam 
 impliedly autlujrizes the purchase of necessarv 
 land. (15 Op. Atty. Gen., 212. See also 22 
 Op. Atty. Gen., 665.) 
 
 An appropriation under the War Department 
 for erection of a monument is not authority for 
 purchase of land. (6 Comp. Dec, 791; see also 
 7 Comp. Dec, 524.) 
 
 The expense of procuring an abstract of 
 title to land to be used as a site for a fortifica- 
 tion is a proper charge against the appropriation 
 made for the purchase of the site, if the abstract 
 is needed by the United States attorney to 
 assist him in examining the title, provided the 
 land is to be purchased and not condemned. 
 (3 Comp. Dec, 216; compare 23 Comp, Dec, 
 53.) 
 
 Payment for the services of a special assistant 
 United States attorney in examining titles to 
 land can not be made from the appropriation 
 available for the work in connection with which 
 the land was needed, the appropriation under 
 the Department of Justice for pay of such assist- 
 ants being exclusive. (1 Comp. Dec, 317; com- 
 pare 9 Comp. Dec, 793.) 
 
 Where an abstract of title is furnished as a 
 preliminary to the purchase of the land, the 
 expense is properly chargeable to the appropria- 
 tion provided to pay for the land, the expense 
 being regarded as part of the cost of the prop- 
 erty. (Citing 3 Comp. Dec, 216, 217.) But 
 the expense of procuring an abstract of title to 
 land already acquired by the United States is 
 payable from the appropriation for contingen- 
 cies of the department procuring the abstract 
 and not against an appropriation made specific- 
 ally for improvements on the land. (4 Comp. 
 Dec, 62.) 
 
 Bjr act of March 2, 1889 (25 Stat. 941), it was 
 provided that in the procurement of sites for 
 public buildings the grantors must furnish, free 
 of charge, all requisite abstracts, official certifi- 
 cates, and evidences of title. Referring to this 
 law the Comptroller said: "The exact public 
 buildings to which it refers is not entirely free 
 from doubt, but I am clearly of the opinion that 
 it has no relation whatever to sites for fortifica- 
 tions under the War Department." (3 Comp. 
 Dec, 218.) 
 
 By necessary implication the latter proviso 
 of the act of March 2, 1889 (25 Stat., 941), pos- 
 itively prohibits the payment for an abstract 
 of title to land purchased by the United States 
 as a site for any public building. If such an 
 abstract could be procured and paid for prior 
 to the agreement for the purchase of the site, 
 the purpose of this provision would be entirely 
 defeated. The provision must therefore be con- 
 strued as prohibiting payment for an abstract 
 procured prior to, as well as for one procured at 
 the time of, the purchase. (7 Comp. Dec, 51.) 
 
 Payment for abstract of title for land not pur- 
 chased as a site for a public building may be 
 made from the appropriation for purchase of the 
 land and the making of the improvement 
 thereby authorized. The act of March 2, 1889 
 (25 Stat., 941), does not apply to such case. 
 (8 Comp. Dec, 212.) 
 
 It is well settled that in the purchase of land 
 on account of the United States the preliminary 
 
 294 
 
Justice Depaxtraent. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 356. 
 
 expenses of such purchase, as procuring ab- 
 stracts of title, etc., and such other services as 
 are not legal services, are payable from the 
 appropriation for the purchase of the land ; but 
 that the expense of any legal proceedings taken 
 by the Department of Justice in connection 
 therewith are payable from an appropriation of 
 that department. (9 Comp. Dec, 793, citing 
 3 Comp. Dec, 216.) 
 
 Section 355 has been modified by the pro- 
 visions of the act of March 2, 1889 (25_Stat., 941). 
 It has been held that this act prohibits the pay- 
 ment by the Government of the expense of an 
 abstract of title to land purchased by the 
 United States as a site for a public building, and 
 that this prohibition applies to an abstract pro- 
 cured either prior to or at the time of the pur- 
 chase of such land. (14 Comp. Dec, 579, citing 
 7 Comp. Dec, 51.) 
 
 When a suit for condemnation is brought 
 the expense of such suit, like all other suits in 
 which the United States is a party, is payable 
 from the appropriations made for the Depart- 
 ment of Justice. (3 Comp. Dec, 216; see also 
 1 Comp. Dec, 317; 2 Comp. Dec, 201.) 
 
 Transfer of public lands. — Lands reserved 
 for militarj' purposes can not be restored to the 
 public domain without an act of Congress; and 
 it would also seem that they can not be trans- 
 ferred to another department. (28 Op. Atty. 
 Gen., 143; 21 Op. Atty. Gen., 120; file 984-3, 
 Oct., 1905. See also note to sec. 161, R. S., 
 "Custody of Property and Records.") 
 
 The President has authority to transfer the 
 use and control of lands in the Philippine 
 Islands, reserved by Executive Order for naval 
 purposes, to the ^^'a^ Department for military 
 purposes. (28 Op. Atty. Gen., 262.) 
 
 Any part or parts of the naval stations in 
 Porto Rico no longer needed for the purposes of 
 the Navy' Department may be transferred to the 
 control of the \\'ar Department or of any other 
 department, either by formal Executive Order 
 or by arrangement between the Secretary of the 
 Navy and the head of the other department. 
 (29 Op. Atty. Gen., 205, citing 25 Op. Atty. 
 Gen., 269; 28 Op. Atty. Gen., 262; 16 Op. Atty. 
 Gen., 124.) 
 
 Any part of the naval stations in Porto Rico 
 may be transferred to the Government of Porto 
 Rico under express authority contained in the 
 act June 14, 1910 (36 Stat., 467), provided it is 
 embraced witliin the terms of that act. While 
 this transfer may be made by the Secretary of 
 the Navj', it would be preferable to have the 
 formal transfer effected by presidential procla- 
 mation. (29 Op. Atty. Gen., 205.) 
 
 As to those parts of the naval stations in Porto 
 Rico \\'hich are not within the provisions of the 
 act of 1910, there is no warrant of law for their 
 formal transfer or cession to the Government of 
 Porto Rico. Permission, however, may be 
 given to the Insular Government through a 
 letter or instrument in the nature of a revocable 
 license for the use of these parts of the stations 
 and the buildings thereon and for the construc- 
 tion of improvements temporary in their 
 nature. (29 Op. Atty. Gen., 205.) 
 
 It would be difficult to lay down complete 
 rules in regard to these reservations. They are 
 made under such a variety of circumstances, for 
 such various purposes, and under such different 
 laws that each case is more conveniently con- 
 sidered and discussed as it arises in connection 
 with the facts relating to it. (16 Op! Atty. 
 Gen., 124.) 
 
 OF 
 
 Sec. 356. [Opinions of Attorney-General required by heads of Departments.] 
 
 The head of any Executive Department may require the opinion of the 
 
 Attorney-General on any questions of law arising in the administration of his 
 
 Department.— (22 Jime, 1870, c. 150, s. 6, v. 16, p. 163.) 
 
 acta, in iserforming this legal duty, simply as 
 the law adviser of the President and heads of 
 departments. He is bound upon points of law 
 and facts stated by them to give legal opinions 
 in aid of their judgment in matters for their 
 decision. (11 Op. Atty. Gen., 4.) 
 
 When in the course of discharging the duties 
 of their departments, a question of law shall 
 arise, whose solution is a prerequisite to the dis- 
 charge of those duties, the head of any depart- 
 ment has a right to request the opinion of the 
 Attorney General on such question of law and he 
 is bound by his oath to answer it. (1 Op. Atty. 
 Gen., 608, 611.) 
 
 The Attorney General is not authorized or 
 required to give an official opinion except to the 
 President or to the head of an Executive 
 Department, and the opinion must be needed for 
 the guidance of the head of the department and 
 should relate to some matter calling for action 
 or decision on his part. (21 Op. Atty. Gen., 
 174; 20 Op. Atty. Gen., 609, 723.) 
 
 An opinion of the Attorney General may be 
 requested by two or more heads of departments 
 jointly, and will be rendered to all who joined 
 in the request. (See 29 Op. Atty. Gen., 303; 
 29 Op. Atty. Gen., 494.) 
 
 I. Who May Request Opinion. 
 II. Must be Question op Law. 
 
 III. Must Arise in Administeation 
 
 Department. 
 
 IV. Form of Request. 
 
 V. Weight of Opinions. 
 
 VI. Jurisdiction, Attorney General and 
 Comptroller of the Treasury. 
 
 VII. Miscellaneous. 
 
 I. Who May Request Opinion. 
 
 President or head of department. — It has 
 repeatedly been held that the Attorney General 
 is not authorized to give his official opinion 
 upon a question of law where it is not called for 
 by the t'resident or by the head of a depart- 
 ment. (14 Op. Atty. Gen., 21.) 
 
 The Attorney General is not authorized to 
 give an official opinion in any case except on the 
 call of the President or some one of the heads of 
 departments. (1 Op. Atty. Gen., 211.) 
 
 By long and unbroken construction and prac- 
 tice it has been settled that the Attorney General 
 
 296 
 
Sec. 366. 
 
 Pt. g. REVISED STATUTES. 
 
 Justice Department. 
 
 When a "difference of opinion" arises be- 
 tween several executive departments as to the 
 construction of the law, the primary question is 
 as to which is vested with the determination 
 and responsibility of the question. That one 
 only can have jurisdiction over the subject- 
 matter is plain. (20 Op, Atty. Gen., 178, 180.) 
 
 As to opinions which may be required of the 
 Attorney General by the President, see section 
 354, Revised Statutes. 
 
 Subordinate officers of the Government 
 who desue an oOicial opinion must seek it 
 through the head of the department to which 
 such subordinate is accountable. (1 Op. Atty. 
 Gen., 211.) [Where an opinion was requested 
 by a subordinate officer of a department, the 
 Attorney General has replied to the head of the 
 department. (20 Op. Atty. Gen., 220.) In 
 another case the Attorney General addressed his 
 opinion to a subordinate officer of a department, 
 it appearing that he requested the opinion "By 
 direction of the President." (27 Op. Atty. 
 Gen., 150.) An opinion was rendered to the 
 Secretary of the Navy in response to a request 
 from the latter's aid. (28 Op. Atty. Gen., 531.)] 
 
 For the guidance of the heads of bureaus and 
 other officers of the departments in the dis- 
 charge of their duties provision is made by sec- 
 tion 361, Revised Statutes, for assistance from 
 the officers of the Department of Justice, under 
 the direction of the Attorney General. The At- 
 torney General can not render an opinion in 
 such cases, even though it be requested through 
 the head of the department, where the matter 
 is not one calling for action or decision of the 
 latter. (21 Op. Atty. Gen., 174; 20 Op. Atty. 
 Gen., 609, 723.) 
 
 Question suggested but not decided whether 
 law allows questions in the War and Navy 
 Departments to be sent to the Attorney General 
 by somebody else than the Secretary. (18 Op. 
 Atty. Gen., 59. See sec. 357, R. S., and note.) 
 
 It is true that the Attorneys General have 
 given to heads of departments ad\'ice and 
 opinion upon questions arising in the bureaus of 
 their respective departments; but such advice 
 and opinion are intended to aid only_ the judg- 
 ment of the Secretary himself in deciding sucn 
 questions. (11 Op. Atty. Gen., 4.) 
 
 The Attorney General is not, in general, to 
 give official opinions to subordinate officers of the 
 Government. (6 Op. Atty. Gen., 326, 334.) 
 
 An opinion of the Attorney General upon any 
 question arising in the administration of the 
 Treasury Department can only be had at the 
 instance of the Secretary. (18 Op. Atty. Gen. 
 59.) 
 
 Legislative Department. — In the absence 
 of any statutory authority to give official opin- 
 ions to the legislative department of the Gov- 
 ernment, the assumption of such a power by the 
 Attorney General would be in violation of his 
 oath of office and of dangerous example. (10 
 Op. Atty. Gen., 164.) 
 
 The Attorney General is not authorized to 
 give his official opinion upon a call of either 
 House of Congress or any committee or Member 
 thereof. (17 Op. Atty. Gen., 358.) _ 
 
 The Attorney General can not, without vio- 
 lating his oath , render an opinion to the Speaker 
 upon the order of the House of Representatives. 
 (1 Op. Atty. Gen., 335.) 
 
 The Attorney General is not authorized by 
 law to give an official opinion to the House of 
 Ile])resentatives in response to a resolution 
 tliereof. (18 Op. Atty. Gen., 87; citing 2 Op. 
 Atty. Gen., 499; 5 Op. Atty. Gen., 561; 10 Op. 
 Atty, Gen., 164; 12 Op. Atty. Gen., 544; 12 Op. 
 Atty. Gen., 546; 14 Op. Atty. Gen., 17; 14 Op. 
 Atty. Gen., 177; 15 Op. Atty. Gen., 475.) 
 
 It is not within the ])rovince of the Attorney 
 General to advise committees of Congress upon 
 questions of law occurring in matters before 
 them. (14 Op. Atty. Gen., 17.) 
 
 [The Attorney General rendered a lengthy 
 opinion to the Senate Committee on Interstate 
 Commerce, May 5, 1905, which is published 
 with the following note: "This opinion, prop- 
 erly speaking, is not an official one, but is to be 
 regarded as a letter of adA'ice. It is printed 
 with the official opinions solely because of the 
 importance of the subject considered." (25 
 Op. Atty. Gen., 422.) The Attorney General 
 has also rendered an opinion to the House of 
 Representatives. (1 Op. Atty. Gen., 253.) 
 Compare 30 Op. Atty. Gen., 88.] 
 
 II. Must be Question op Law. 
 
 In General. — The authority of the Attorney 
 General to give opinions is limited by Congress 
 to "questions of law," (20 Op. Atty. Gen., 
 590.) 
 
 The Attorney General can not give official 
 opinions except upon questions of law. (21 
 Op. Atty. Gen., 36.) 
 
 Being thus limited to questions of law, the 
 Attorney General has not been clothed with 
 power to investigate matters of fact. He has 
 no authority to compel the attendance of wit- 
 nesses, or to administer oaths to them; and in 
 short has none of the machinery by which, 
 through the control of persons and papers, 
 truth may be elicited and falsehood exposed. 
 Tlius deficient in the means of ascertaining the 
 facts, his conclusions u])on the law would nec- 
 essarily be valueless, since their accuracy would 
 depend on the fullness and certainty with 
 which the facts were established. (10 Op. 
 Atty. Gen., 164.) 
 
 Can not decide questions of fact. — The 
 Attorney General has no ])ower to investigate 
 or decide questions of fact, but only to give 
 advice on questions of law as they arise out of 
 facts authoritatively laid before him by the 
 head of a department. (JO Op. Atty. Gen., 267.) 
 
 It is not the province of the Attorney General 
 to settle a controversy involving matters of fact. 
 He can only give his opinion on questions of 
 law. _ (12 Op. Atty. Gen., 206.) 
 
 It is not within the competency of the Attor- 
 ney General to make a finding of facts in any 
 case, but he can only give an opinion on ques- 
 tions of law arising upon a statement of facta 
 presented to him by the officer requesting an 
 opinion. (19 Op. Atty. Gen., 696.) 
 
 Tlie Attorney General only has jurisdiction 
 of questions of law, and must be furnished with 
 a definite statement of the facts. (21 Op. Atty, 
 Gen. 36; see also 1 Op. Atty. Gen., 253.) 
 
 As the Attorney General is not at liberty 
 under the law to make a finding of facts, he will 
 lay aside the evidence submitted for his con- 
 sideration with request for an opinion, and take 
 as the case for opinion the statement contained 
 
 296 
 
Justice Department. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 366. 
 
 in the communication from the head of the 
 department. (19 Op. Atty. Gen., 547.) 
 
 The Attorney General is not permitted by 
 law to render an official opinion to the head of a 
 department upon questions of fact. (21 Op. 
 Atty. Gen., 174; citing 20 Op. Atty. Gen., 697, 
 711,717,740.) 
 
 The Attorney General is under no obligation 
 to render an award, or to determine a question 
 of fact in cases referred to him. (6 Op. Atty. 
 Gen., 326, 334.) 
 
 The law is settled that the Attorney General 
 can not properly decide questions of fact. Such 
 questions must be determined by the head 
 of the department in which they arise. (20 
 Op. Atty. Gen., 384.) 
 
 The Attorney General, in discharging the 
 duties imposed upon him by section 356, Re- 
 vised Statutes, is required only to answer ques- 
 tions of law and can not consider questions of 
 fact upon evidence submitted. Where papers 
 containing e\'idence accompany the request for 
 tlie Attorney General's opinion, he will not ex- 
 amine same, but will assume that all the facts 
 have been found in favor of the applicant. (20 
 Op. Atty. Gen., 253.) 
 
 The Attorney General has no authority to 
 give an official opinion upon questions of fact 
 submitted by the head of a department. (3 Op. 
 Atty. Gen., 1.) 
 
 It is obvious thpt when the Attorney General 
 proceeds to give his opinion and ad^^.ce on any 
 question of law the facts giving rise to such 
 question must be either stated to or assumed by 
 him; and when the head of the department 
 calUng for his opimon gives him those facts, he 
 must necessarily adopt them as the bases of his 
 reflections and judgment. Whether they are 
 presented in the form of a direct statement or of 
 an argumentative examination of the circum- 
 stances can make no difference. In either case 
 it would be manifestly improper to receive from 
 any other source statements or inferences con- 
 flicting with those which are put before him 
 by the only authority legally known to him in 
 the premises. To act otherwise would involve 
 a usurpation of power; for it would be convert- 
 ing an office created for the sole purpose of assist- 
 ing and advising the executive departments 
 on questions of law into an appellate tribunal 
 for the reexamination of their decisions on mat- 
 ters of fact. (3 Op. Atty. Gen., 1.) 
 
 The Attorney General has no authority to set- 
 tle questions of fact. He is obliged to take the 
 facts of a case as they are stated to him and to 
 predicate his opinion thereon. (3 Op. Atty. 
 Gen., 309.) 
 
 It has been held from a very early date that 
 an official opinion can be recjuired and given 
 only when the question submitted is a question 
 of law. (20 Op. Atty. Gen., 614.) 
 
 The Attorney General can not undertake to 
 settle conflicting questions of fact raised by 
 various papers submitted, but \'iiil look to the 
 submitted statement of facts alone. (22 Op. 
 Atty. Gen., 156.) 
 
 The Attorney General's duty is limited to 
 questions of law arising in the administration of 
 the respective departments. Where the sub- 
 ject matter is not of that character, and conse- 
 quently not within the scope of duty thus 
 
 marked out, he is without authority to officially 
 advise thereon. (18 Op. Atty. Gen., 365.) 
 
 ^Vhat constitutes prompt delivery by a con- 
 tractor is a question of fact, in regard to which 
 the Attorney General is not required to express 
 an opinion. (28 Op. Atty. Gen., 47.) 
 
 The Attorney General declines to render an 
 opinion upon a matter submitted which in- 
 volves the determination of questions of fact 
 (26 Op. Atty. Gen., 604.) 
 
 The advisory powers of the Attorney General 
 do not extend to an examination of e\idence to 
 ascertain what is established by a preponder- 
 ance of the testimony (citing 17 Op. Atty. Gen., 
 172); nor can he settle facts from papers sub- 
 mitted, and then proceed to give an opinion 
 thereon (citing 18 Op. Atty. Gen., 487; 19 Op. 
 Atty. Gen., 672). (28 Op. Atty. Gen., 218.) 
 
 The Attorney General will not enter into the 
 consideration of disputed questions of evi- 
 dence. (28 Op. Atty. Gen., 239.) 
 
 The Attorney General will not undertake to 
 find the facts involved in a request for an 
 opinion. (28 Op. Atty. Gen., 393.) 
 
 WTiere the record of a court-martial trial waa 
 sent to the Attorney General by the President 
 for a report, among other things, upon the ques- 
 tion whether it contained any "unjustified con- 
 clusion of fact " which would render it the duty 
 of the President to withhold approval of the 
 findings of the court-martial, or any part thereof, 
 and generally to ad\ise the President as to the 
 action he should take upon the record as trana- 
 mitted to him from the court-martial; the At- 
 torney General rendered an opinion upon the 
 questions of fact thus presented, as well as upon 
 the questions of law involved. (Case of Capt. 
 Oberlin M. Carter, U. S. A., 22 Op. Atty. Gen., 
 589.) 
 
 In general, the Attorney General will render 
 an opinion to the Secretary of the Navy upon 
 questions of law presented by the records of 
 court-martial proceedings (28 Op. Atty. Gen., 
 286; 29 Op. Atty. Gen., 563; C. M. O. No. 4— 
 1913); but will not render an opinion to the 
 Secretary of the Navy upon questions of fact 
 connected the^e^vith nor review the proceedings 
 of a court-martial in search of questions of law. 
 (5 Op. Atty. Gen., 626.) 
 
 Can not decide questions of expediency, 
 administrative discretion, etc. — The advisa- 
 bility of bringing a suit is not a question of 
 law upon which the Attorney General's opinion 
 may be asked. (20 Op. Atty. Gen., 702.) 
 
 The Attorney General can not with propriety 
 express any judgment concerning the disposi- 
 tion of the matter to which his opinion relates, 
 that being something wholly within the admin- 
 istrative sphere and direction of the head of the 
 department. The Attorney General's duty 
 ends with the rendition of the opinion. (17 Op. 
 Atty. Gen., 332.) 
 
 The Attorney General's opinion iipon a purely 
 administrative matter entirely within the dis- 
 cretion of the head of a department must be con- 
 sidered CAtra-official and as coming from one 
 whose lack of practical knowledge of the admin- 
 istration of the department makes his opiiuon 
 on this point far inferior in value to that of the 
 head of the department to whom it is addressed. 
 (20 Op. Atty. Gen., 654, 658.) 
 
 297 
 
Sec. 366. 
 
 Pt. 2. REVISED STATUTES. 
 
 Justice Department. 
 
 The Attorney General is not authorized to 
 give an oiiicialopinion upon a nuestion which 
 proposes for his consideration nothing more than 
 a subject of controversy between subordinates 
 of a department and private parties. (18 Op. 
 Atty. Gen., 365.} 
 
 Inquiries involA-ing considerations of adminis- 
 trative discretion and judgment, of practica- 
 bility and advisability, must be solely deter- 
 mined by the head of the department in his 
 discretion. (24 Op. Atty. Gen., 118.) 
 
 Where there is no doubt that terms are used in 
 a statute in their ordinary acceptation, the duty 
 of applying the statute to a particiilar state of 
 facts IS one of administration merely, involving 
 the determination of questions of fact, and the 
 duty of applying the statute to the facts can not 
 be devolved upon the Attorney General. (20 
 Op. Atty. Gen., 487.) 
 
 The Attorney General can not, with propri- 
 ety, give an otticial opinion to the head of a de- 
 partment upon the qxiestion whether it is expe- 
 dient for him to prosecute an appeal from the 
 decision of a chief of bureau in another depart- 
 ment to the latter's superior in the same de- 
 partment. The question is not necessarily one 
 of law, but may involve merely official discre- 
 tion. Any questions of law which arise may be 
 presented to the Attorney General by the head 
 of the department in which the appeal is pend- 
 ing. (15 Op. Atty. Gen., 574.) 
 
 The Attorney General is not authorized to ex- 
 press any views upon a matter of propriety lying 
 within the executive jiidgment and discretion 
 of the head of the department requesting the 
 opinion. (25 Op. Atty. Gen., 93.) 
 
 It is not within the pro^^nce of the Attorney 
 General to constnie the reasons, affecting his 
 administrative judgment and discretion, which 
 might impel the head of a departrnent to take 
 any action one way or the other in a matter 
 pending before him for decision; he is neither 
 empowered nor required to pass upon the pro- 
 priety of the exercise by the head of a depart- 
 ment of an official discretion. (25 Op. Atty. 
 Gen., 524.) 
 
 Whether charges proposed to be made by the 
 Secretary of Agrictilt\ire for the use of lands or 
 resources within the limits of the national-forest 
 reserves would or would not be reasonable is a 
 matter left by law entirely to the Secretary's 
 discretion. The responsibility, as well as the 
 power, rests with the Secretary. It is not, 
 therefore, a question which can properly be de- 
 termined by the Attorney General. (26 Op. 
 Atty. Gen., 421.) 
 
 An inquiry which raises a question of pro- 
 priety and expediency, rather than a question 
 of law, is one to be determined by the head of 
 the department only, and upon which the At- 
 torney General can not advise. [In this case, 
 however, the Attorney General stated that he 
 agreed with the officer requesting his opinion, 
 that the action proposed was of very doubtful 
 expediency.] (26 Op. Atty. Gen., 579.) 
 
 The Attorney General declines to express an 
 opinion to the Secretary of the Treasury as to 
 the propriety of a proposed instruction to cxis- 
 toms officials, as he is not authorized to express 
 his ^'iews upon matters of propriety involving 
 executive judgment and discretion. (25 Op. 
 Atty. Gen., 94.) 
 
 The advisory powers of the Attorney General 
 do not extend to a question which would appear 
 to turn wholly tipon a conclusion of fact as to 
 the status of a'bidder, and to involve, therefore, 
 the exercise of judgment and discretion by the 
 head of the department, with which the Attor- 
 ney General can not under the law or with pro- 
 priety interfere. (28 Op. Atty. Gen., 218.) 
 
 The Attorney General refrains from adAdsing 
 as to the propriety of issuing a regulation. (25 
 Op. Atty. Gen., 93.) 
 
 Can not construe executive regula- 
 tions. — It is the province of the head of a 
 department, rather than of the Attorney Gen- 
 eral, to construe regulations issued by the for- 
 mer. (21 Op. Atty. Gen., 36.) 
 
 The Attorney General will not interpret a 
 regulation of practice made by the Commis- 
 sioner of Patents for his own guidance and that 
 of his stibordinates for the convenient, intelli- 
 gent, and orderly disposal of the business of hia 
 office. Such regfulations, which the heads of 
 bureaus and departments can make, modify, or 
 annul at will, or enforce or waive, as seems ex- 
 pedient, may well be left for their interpreta- 
 tion to the head of the department or bureau to 
 which they pertain. (18 Op. Atty. Gen., 521.) 
 A regulation, when not specially authorized 
 or demanded by law, is not law in the sense in 
 which that term is tised in this section. _ It is 
 simply a rule of administrative practice in the 
 present instance with reference to the classifica- 
 tion and order of precedence in the considera- 
 tion of cases in the Patent Office. (18 Op. Atty. 
 Gen., 521.) 
 
 The construction of regulations of the Civil 
 Service Commission is a matter entirely within 
 the province of the commission, and should 
 not be attempted by the Attorney General. 
 Where the question presented is whether the 
 regulation is one that was ■within the power of 
 the commission to make, the Attorney General's 
 answer will be, that if the regulation is con- 
 stnied to mean thus and so, it is a lawful regu- 
 lation; otherwise, it is unauthorized. (20 Op. 
 Atty. Gen., 649.) 
 
 The Attorney General can not give an official 
 opinion upon the construction of customs regu- 
 lations, which may be modified, at any time 
 by the Secretary "of the Treasury. (21 Op. 
 Atty. Gen., 255.) 
 
 A departmental regulation _ which is not 
 demanded by law is not law in the sense in 
 which that term is used in section 356. It may 
 more properly be left for interpretation by the 
 head of the department or bureaii to which 
 it pertains, and wliich is responsible for its 
 existence and execution. As the basis of the 
 regulation is to be found only in the will of its 
 maker, to ad\-ise him what meaning his lan- 
 guage conveys would be useless, since an inter- 
 pretation unsuitable to him could only result 
 m a revision. (25 Op. Atty. Gen., 183.) 
 
 Will decide whether proposed or exist- 
 ing regulation is legal. — ^The question as to 
 the power of an executive officer to issue a rule 
 or regulation or as to its legality, is distinguished 
 from a question as to the proper interpretation 
 of a regulation, wliich latter question the Attor- 
 ney General will not answer. (18 Op. Atty. 
 Gen., 521; 20 Op. Atty. Gen., 649.) 
 
 298 
 
Justice Department. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 356. 
 
 The Attorney General will examine regula- 
 tions proposed to be issued by the Secretary of 
 the Treasury for the information of residents of 
 the United States returning from foreign coun- 
 tries, and decide whether or not same are in 
 harmony with the tariff act, and legal. (25 
 Op. Atty. Gen., 93.) 
 
 Similarly, the Attorney General will render 
 an opinion to the Secretary of the Navy as to 
 the latter' s authority to make certain proposed 
 changes in Navy Reflations. (29 Op. Atty. 
 Gen., 264; also unpublished opinion, Oct. 27, 
 1909, file 3980-530.) 
 
 The Attorney General will examine a pro- 
 posed regulation of the State Department with 
 reference to the compensation of consular 
 agents, and decide that such regulation, "being 
 consistent with the provisions of law, may be 
 carried into effect." (22 Op. Atty. Gen., 163.) 
 
 The Attorney General will not render an 
 opinion as to whether or not certain proposed 
 regulations may be adopted and put into effect 
 by the head of a Department, unless it affirma- 
 tively appear that such head of Department, as 
 a matter of policy and administrative discre- 
 tion, is prepared or intends to adopt such regu- 
 lations or any modification thereof, provided 
 such action would be legal on his part; as it is 
 only then that a question of this character can 
 be said to have so arisen in the administration 
 of the department as to come witliin the terms 
 of section 356, Revised Statutes. (27 Op. Atty. 
 Gen., 49.) 
 
 The Attorney General can not answer the 
 question whether a regulation if issued could 
 be enforced, as it is hypothetical as well as 
 judicial. (25 Op. Atty. Gen., 93.) (However, 
 m this case, in view of the special object of the 
 proposed regulation, the Attorney General 
 states that, while refraining from advising as to 
 the propriety of issuing the regulation, or aa to 
 its fate if it should come before the courts, "it 
 does not seem to me, speaking from the present 
 standpoint, that its general legality can be 
 seriously questioned.") 
 
 The validity of a Navy regulation, as applied 
 to cases that might arise in the future, is hardly 
 a proper subject for the Attorney General to 
 pass upon. (28 Op. Atty. Gen., 129, citing 
 20Op. Atty. Gen., 738.) 
 
 The law does not require the Attorney Gen- 
 eral to undertake the task of examining codes 
 of rules adopted to meet future cases. The 
 establishment of such a practice would require 
 his entire time, and necessitate the imagining 
 of the various contingencies in which their 
 validity might in future cases be questioned, 
 and passing judgment on these possible future 
 problems. (20 Op. Atty. Gen., 738.) 
 
 The Attorney General will render an opinion 
 as to whether or not an existing regulation is 
 legal. (20 Op. Atty. Gen. 649; 30 Op. Atty. 
 Gen., 234.) 
 
 The Attorney General will determine that a 
 Navy regulation is valid and "has binding 
 force upon the accounting officers of the Gov- 
 ernment." (Op. Atty. Gen., May 19, 1915, 171 
 S. and A. Memo., 8611.) 
 
 Will not advise as to foreign law. — The 
 existence of a foreign law is a question of fact 
 to be proved by competent evidence. The 
 Attorney General can not give an opinion as 
 
 to the law of a foreign nation. Whether the 
 statements of a foreign ambassador as to the 
 true construction of the legislation of his own 
 Governmentand the practice thereunder should 
 be accepted as true is a question to be decided 
 by the Secretary of State and not by the Attor- 
 ney General. (21 Op. Atty. Gen., 377; 21 Op. 
 Atty._ Gen., 80; file 26543-124, Aug. 4, 1914. 
 In this connection, see 7 Op. Atty. Gen., 9.) 
 
 Will not examine and approve blank 
 forms. — The law does not require the Attor- 
 ney General to examine and approve forms of 
 obligations, permits, bonds, and affidavits for 
 future use in the other departments. The 
 establishment of such a practice would require 
 his entire time and necessitate the imagining 
 of the various contingencies in which their 
 validity might in future be questioned and 
 passing judgment on these possible future 
 problems. (20 Op. Atty. Gen., 738. But see 
 27 Op. Atty. Gen., 173; and file 3355-88, 
 Nov. 7, 1906.) 
 
 Questions as to desirability of changing 
 the law. — This section limits the functions of 
 the Attorney General, in the matter of opinions 
 requested by the heads of departments, to 
 questions arising out of the law as it is, and 
 does not seem to call upon him to give his views 
 and opinions upon the advisability of making 
 changes by treaty in any department of juris- 
 prudence. (19 Op. Atty. Gen., 598.) 
 
 [However, in 6 Opinions Attorney General, 
 432, the Attorney General expressed the view 
 that " Congress may undoubtedly relax the law 
 in this case," but that it seemed to him "pre- 
 mature" to do so in the existing status of the 
 matter. In 22 Opinions Attorney General, 512, 
 he suggested " that relief be had through Con- 
 gressional action;" in 24 Opinions Attorney 
 General, 69, he stated, " I have the honor to 
 say, responding to your alternative suggestion, 
 that it may be well to propose to Congress 
 legislation which shall explicitly authorize the 
 issue of letters rogatory by the Patent Office of 
 the United States, and shall clothe Federal 
 courts with the power to execute letters issued 
 by those patent offices of recognized powers 
 which possess and exercise well defined judicial 
 functions;" in 25 Opinions Attorney General, 
 98, he suggested " that Congressional action be 
 sought to provide for the various features of 
 expense, compensation to the Government or 
 its officers, official liability for the faithful per- 
 formance of the trust," etc.; on May 27, 1909, 
 he submitted draft of a bill to the Secretary of 
 the Navy, with suggestion that it be introduced 
 in Congress for the purpose of curing defects in 
 a law considered by him in an official opinion. 
 File 22724-7i. See also 26 Op. Atty. Gen., 
 70, 74.] 
 
 III. Must Arise in Administration op 
 Department. 
 
 Will not answ^er hypothetical question. — 
 
 The Attorney General will not give a specula- 
 tive opinion on an abstract question of law 
 which does not arise in any case presented for 
 the action of an executive department. (11 
 Op. Atty. Gen., 189; 20 Op. Atty. Gen., 288, 
 440; 28 Op. Atty Gen., 129, 239, 417; 29 Op. 
 Atty. Gen., 99; 22 Op. Atty. Gen., 77; com- 
 pare 28 O^. Atty. Gen., 34, 38.^ 
 
 54641°— 22- 
 
 ■20 
 
 299 
 
Sec. 356. 
 
 Pt.t. REVISED STATUTES. 
 
 Justice Department. 
 
 It has been held from a very early day that 
 an ollicial opinion can be required and given 
 onlv when the question for decision is one 
 which has already actually arisen, and not a 
 question upon a hypothetical case which may 
 or may not arise in the future. (20 Op. Atty. 
 Gen., 614.) 
 
 The opinion of the Attorney General may be 
 required on questions of law arising in the 
 administration of a department, but not \ipon 
 hypothetical cases merely. Q3 Op. Atty. Gen., 
 531; 19 Op. Atty. Gen., 414.) 
 
 It is not the duty or practice of the Attorney 
 General to officially answer abstract or hypo- 
 thetical questions of law. (13 Op. Atty. Gen., 
 568; 19 Op. Atty. Gen., 414.) 
 
 To attempt in advance to settle such ques- 
 tions is to anticipate trouble, and it may well 
 be added, to promote trouble. (19 Op. Atty. 
 Gen., 414; 13 Op. Atty. Gen., 531; 9 Op. Atty. 
 Gen., 421; 20 Op. Atty. Gen., 440.) 
 
 The Attorney General is not required to write 
 abstract essays on any subject. (20 Op. Atty. 
 Gen., 440; 9 Op. Atty. Gen., 82.) . 
 
 The inconvenience will be readily perceived 
 of giving, upon a hypothetical case, an opinion 
 which, upon the consideration of an actual case, 
 may require modification on account of circum- 
 stances not imagined, and therefore not con- 
 sidered in the preparation of the opinion. (13 
 Op. Atty. Gen., 531; 19 Op. Atty. Gen., 414; 
 20 Op. Atty. Gen., 440.) 
 
 The Attorney General is not permitted, by 
 statute or precedent, to give an opinion upon a 
 question which does not spring out of any 
 present, actually existing case arising m the 
 administration of the department requesting the 
 opinion, but which is a question in a hypotheti- 
 cal case, and one, indeed, which may never 
 arise, and calls in advance for an opinion as to 
 what the department would hold in the future 
 upon a somewhat indefinite state of facts. 
 (19 Op. Atty. Gen., 414.) 
 
 The Attorney General, for obvious reasons, 
 must decline to answer a hypothetical question. 
 He will not, therefore, render an opinion upon 
 a question which, is not actually pending at the 
 time before the head of the department request- 
 ing it. (20 Op. Atty. Gen., 251.) 
 
 The inquiry must relate not to a mere moot 
 question but to one which requires immediate 
 action. The answer must be necessary for the 
 protection of the officer making the inquiry, or 
 to insure the lawfulness of the action which he 
 is about to take. (21 Op. Atty. Gen., 509.) 
 It has been the uniform practice of the De- 
 
 Eartment of Justice, established by an unbroken 
 ne of opinions, to decline to give an opinion 
 upon a question of law which will be of no assist- 
 ance to the head of a department or the officers 
 under him in the proper and complete per- 
 formance of their duties; the necessity for such 
 a practice is at once apparent, and unless it be 
 rigorously adhered to_, the Attorney General 
 will frequently find himself placed in the em- 
 barrassing situation of being called iipon to ren- 
 der opinions upon mere moot questions of law. 
 (25 Op. Atty. Gen., 543.) 
 
 It is beyond the competency of the Attorney 
 General to give an official opinion upon a ques- 
 tion which is purely abstract and hypothetical, 
 
 and not arising out of an actual case calling for 
 official action. (19 Op. Atty. Gen., 559, 564.) 
 
 It is impossible to reply to mere speculative 
 points or supposed cases. It has always been 
 the rule of the Attorney General to give opin- 
 ions only in actual cases. (9 Op. Atty. Gen., 
 82; 19 Op. Atty. Gen., 414; 25 Op. Atty. Gen., 
 440.) 
 
 Whether the head of a department should 
 enter into a certain contract, is hypothetical in 
 its nature, unless it should be afiirmatively 
 stated, in substance, that the acceptance of the 
 proposal ha\'ing been determined to be proper 
 and ad\dsable from the administrative point of 
 view, and the head of the department being 
 ready, accordingly, to enter into a contract, 
 desired to kno^/ whether that step was justified 
 by existing provisions of law. (24 Op. Atty. 
 Gen., 118.) 
 
 Whether a regulation, if issued, could be en- 
 forced, is hypothetical as well as judicial; in- 
 volving speculation, as if the requirement is 
 adopted, proceedings in court to enforce it may 
 or may not be successful. (25 Op. Atty. Gen., 
 93.) 
 
 Whether certain regulations may be adopted 
 and put into effect by the head of a department 
 is hypothetical, unless the head of the depart- 
 ment has decided to adopt such regulations or 
 any modification thereof, provided such action 
 would be legal on his part; and it is only under 
 these circumstances that the Attorney General 
 can render an opinion on the subject, as it is 
 only then that a question of this character can 
 be said to have so arisen in the administration 
 of the department as to come within the terms 
 of section 356. (27 Op. Atty. Gen., 49.) 
 
 The Attorney General is prohibited by the 
 restriction contained in section 356, Revised 
 Statutes, from giving an opinion unless an 
 occasion has actually arisen requiring the action 
 of the head of the department submitting it. 
 (20 Op. Atty. Gen., 583.) 
 
 The established practice of the Department 
 of Justice has been to consider this section as 
 containing an implied prohibition against the 
 rendering of an opinion by the Attorney Gen- 
 eral unless upon a question of law which has 
 actually arisen, and not upon one which might 
 or could, under certain contingencies, arise in 
 the administration of the department request- 
 ing the opinion. (27 Op. Atty. Gen., 49.) 
 
 The settled policy of the Attorney General is 
 that no opinion should be rendered upon any 
 question of law unless it is specifically formu- 
 lated in a case actually arising in the adminis- 
 tration of a department. (24 Op. Atty. Gen., 
 59.) 
 
 The Attorney General declines to give an 
 opinion as to the meaning of a statute, where 
 the question does not appear to have arisen in 
 the administration of the department propos- 
 ing it. (19 Op. Atty. Gen., 695.) 
 
 In accordance with the well-established rule, 
 declines to answer the question whether citizens 
 of the Philippine Islands are entitled to the 
 benefits of the patent laws of the United States, 
 there being no case invohang that question 
 pending before the department' making the in- 
 quhy. (25 Op. Atty. Gen.. 179.) 
 
 Declines to express an opinion as to whether 
 a joint resolution has any retroactive force, for 
 
 300 
 
Justice Department. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 366. 
 
 the reason that the question is not predicated 
 upon any actual case arising in the department 
 requesting it. (24 Op. Atty. Gen., 556.) 
 
 Where no occasion has arisen for the official 
 action of a head of department, the Attorney 
 General will not give an opinion upon a ques- 
 tion proposed by him. (21 Op. Atty. Gen., 
 457.) 
 
 Will not answer question which is not 
 "pending," has already been decided, 
 etc. — It is required not only that the question 
 must be one arising in the administration of a 
 department, but it" must be one which is still 
 pending. A matter which has been consid- 
 ered and decided is not now a " question" upon 
 which the head of a department may require 
 an opinion of the Department of Justice. (20 
 Op. Atty. Gen., 440; 28 Op. Atty. Gen., 596.) 
 
 Where a claim has already been administered 
 by the head of a department, and consequently 
 no question remains, the Attorney General will 
 not render an opinion even though the head of 
 the department submits the question to him at 
 the request of a committee of Congress. ( 15 Op . 
 Atty. Gen., 138.) 
 
 To authorize the Attorney General to express 
 an opinion upon a question of law propounded, 
 it is necessary that a statement of facts should 
 be submitted showing that the question has 
 actually arisen in the administration of a de- 
 partment, in an existing case calling for action. 
 He is not authorized to answer an inquiry with 
 reference to action already taken, whether re- 
 garded as an abstract question of law or an in- 
 quiry into the legality of the course of a prede- 
 cessor in office in matters not now demanding 
 official action. (22 Op. Atty. Gen., 85.) 
 
 The Attorney General declines to give an 
 opinion upon a question submitted which ap- 
 pears to have been decided and definitively 
 disposed of by the department. (3 Op. Atty. 
 Gen., 39; 20 Op. Atty. Gen., 440.) 
 
 A question is not practically raised in a case 
 where the Attorney General's opinion is de- 
 sired only because the same difficulty which has 
 previously arisen may occur again; but it may 
 not, and to settle it in advance is to anticipate 
 trouble. (9 Op. Atty. Gen., 421: 20 Op. Atty. 
 Gen., 440.) 
 
 The Attorney General can give official opin- 
 ions only upon questions of law actually arising 
 in the administration of the department, which 
 are at the time pending, and which must be de- 
 termined in order that the work of the depart- 
 ment may be properly administered. (20 Op. 
 Atty. Gen., 618.) 
 
 The Attorney General will not give an opin- 
 ion upon a question where it appea,rs that the 
 department has reached a decision thereupon, 
 and that an opinion is desired as to the " correct- 
 ness of the interpretations and applications of 
 said law." (28 0p. Atty. Gen., 596; 20 Op. Atty. 
 Gen., 440.) 
 
 The Attorney General declines to give an 
 opinion to the head of a department upon a 
 question where no case involving that question 
 is now pending before that department. (29 
 Op. Atty. Gen., 46; 29 Op. Atty. Gen., 99.) 
 
 An opinion will not be given by the Attorney 
 General where it does not appear that some 
 question exists calling for the action of the de- 
 partment requesting it. (20 Op. Atty. Gen., 
 383.) 
 
 The Attorney General is not permitted by 
 statute to respond to a request for an opinion 
 by the head of a department which does not 
 show that a case has presently arisen in the ad- 
 ministration of the department. (21 Op. Atty. 
 Gen., 506.) 
 
 The Attorney General will not give an opin- 
 ion upon an important legal question when it 
 is not practically presented by an existing case 
 before a department. (21 Op. Atty. Gen., 506, 
 citing 9 Op. Atty. Gen., 421; 10 Op. Atty. Gen., 
 50; 13 Op. Atty. Gen., 531; 19 Op. Atty. Gen., 
 3.32.) 
 
 From the foundation of the Government it 
 has been held that the Attorney General is 
 neither required nor authorized to give an 
 opinion upon the request of the head of a de- 
 partment except in cases actually pending for 
 decision bv him in such department. (20 
 Op. Atty. Gen., 536, citing 19 Op. Atty. Gen., 
 7; 19 Op. Atty. Gen., 331.) 
 
 The Attorney General is not authorized by 
 statute or precedent to respond by an official 
 opinion as to a question of law not shown to be 
 pending and of present executive consequence. 
 (20Op.Atty.Gen.,50.) 
 
 An opinion will not be given by the Attorney 
 General where it does not appear that some 
 question exists calling for the action of the de- 
 partment requesting it. (20 Op. Atty. Gen., 
 383; 19 Op. Atty. Gen., 342; 19 Op. Atty. Gen., 
 439.) 
 
 The cases in which the Attorney General is 
 authorized to give ooiniona to the heads of 
 executive departments are such as are actually 
 pending in such departments and involve the 
 legal questions submitted. A convicted de- 
 serter from tlie Army, undergoing sentence, 
 must become the recipient of executive clem- 
 ency and must make application for reenlist- 
 ment, before the question of the effect of the 
 President's pardon upon his right to reenlist 
 can arise. (21 Op. Atty. Gen., 568.) 
 
 The question whether a Chinaman resident 
 of the United States could lawfully return if 
 he should revisit his n?tive country, is not a 
 question arising in the administration of the 
 Treasury Department, and can not arise until 
 this Chinaman's return to this country, if he 
 shall decide to depart. Therefore the Attorriey 
 General could not properly give the opinion 
 requested. (20 Op. Atty. Gen., 667.) 
 
 WTiether a certain American steamer, if re- 
 built in Canada, can be reregistered on her 
 return as a vessel built in the United States, 
 is not a question for the present action of the 
 Secretary of the Treasury, and the Attorney 
 General can not properly give an opinion 
 thereon. (20 Op. Atty. Gen., 723; following 20 
 Op. Atty. Gen., 667.) 
 
 When the solution of the question is not nec- 
 essary to the discharge of any duty properly 
 belonging to the department, it is not the duty 
 of the Attorney General to give an opinion 
 thereon, and such opinion would consequently 
 be extra-official and unauthorized. (10 Op. 
 Atty. Gen., 220; 19 Op. Atty. Gen., 7; 20 Op. 
 Atty. Gen., 724; see also, 1 Op. Atty. Gen., 
 611; 1 Op. Atty. Gen., 575; 2 Op. Atty. Gen., 
 311; 2 Op. Atty. Gen., 513; 3 Op. Atty. Gen., 
 368; 6 Op. Atty. Gen., 325.) 
 
 301 
 
Sec. 366. 
 
 Pt. 2. REVISED STATUTES. 
 
 Justice Department. 
 
 Will not review decision of a depart- 
 ment. — The Attorney General does not possess 
 tho power to revise the decisions of an execu- 
 tive dej)artment, delil)orately made, and en- 
 tirely satisfactory to the Secretary thereof. 
 (28 Op. Atty. Gen., 596; 3 Op. Atty. Gen., 39.) 
 
 The Attorney General can not pro7)erly ex- 
 
 firess an official opinion upon a question which 
 las been decided I>y a department and is pre- 
 sented merely because of tne request of counsel 
 for parties interested. (28 Op. Atty. Gen., 596.) 
 
 Where a question appears to have been de- 
 cided and definitively disposed of by a de- 
 partment, after very full consideration, upon 
 grounds then and still believed by it to be 
 indisputable, and to be referred to the Attorney 
 General solely in compliance with request of 
 the claimant, the Attorney General can not 
 undertake to give an official opinion thereon 
 without assumiuo; that his office possesses a 
 revisory jurisdiction not conferred upon it by 
 law. (3 Op. Atty. Gen., 39; 20 Op. Atty. Gen., 
 440; file 11130-2:0. Mar. 26, 1910.) 
 
 An appeal does not lie to the Attorney Gen- 
 eral from another department liy any party 
 assuming to l^e aggrieved by its action and seek- 
 ing to have it reviewed. (6 Op. Atty. Gen., 
 326, 3.34.) 
 
 The Attorney General is not an appellate 
 tribunal for the reexamination of decisions of 
 the executive departments on matters of fact. 
 In rendering an opinion he must accept the 
 facts given him by the head of the department 
 calling for his opinion. To act otherwise would 
 involve a usurpation of power. (3 Op. Atty. 
 Gen., 1.) The Attorney General is ol)liged to 
 take the facts of a ca-se as they are stated to 
 him hy the head of the department requesting 
 his opinion, and to predicate his opinion there- 
 on. (3 Op. Atty. Gen., 309.) 
 
 It is not within the authority of the Attorney 
 General to reverse a decision of the Civil Service 
 Commis.sion or to require it to issue a certificate 
 of reinstatement; as the Civil Ser\ice Commis- 
 sion is vested with authority in the matter of 
 certification, and when it has exercised that 
 authority it is not apparent that any question 
 in the premises remains upon which the statute 
 permits the head of a department to reqiure the 
 opinion of the Attorney General. (20 Op. 
 Atty. Gen., 270.) 
 
 No statute exists which authorizes the head 
 of a department, or the Attorney General at his 
 suggestion, to reverse or review the decision of 
 the Civil Service Commission that a person is 
 not entitled to reinstatement. Accordingly 
 the Attorney General declines to render an 
 opinion, upon request of the head of a depart- 
 ment, as to whether or not the commission 
 interpreted the law correctly. (20 Op. Atty. 
 Gen., 158.) 
 
 The Attorney General is not permitted to 
 give an opinion where he is asked to review 
 and express his conclusions upon the correct- 
 ness of the interpretation and application of the 
 law previously made by the head of a depart- 
 ment and not upon a question pending and 
 undetermined. (20 Op. Atty. Gen., 440.) 
 
 The Attorney General will not render an 
 opinion where it appears that the department 
 has reached conclusions thereupon, and that an 
 opinion is desired as to the correctness of its 
 
 interpretation and application of the law. (28 
 Op. Atty. Gen., 590.) 
 
 A matter which has ])een considered and de- 
 (ided is not now a "question" upon which the 
 head of the department may require an opinion 
 of the Attorney General. (28 Op. Atty. Gen., 
 596; 20 Op. Atty. Gen., 441. 442.) 
 
 The Attorney General will not, at the request 
 of a head of a department, review the decision 
 of the head of another dei)artment, which latter 
 department had complete and lawful jurisdic- 
 ti(m. (II Oj). Atty. Gen.. 189.) 
 
 Will not answer question submitted by 
 head of a department merely for informa- 
 tion of subordinate. — The Attorney General 
 is not authorized or required to give an offic ial 
 opinion to the head of a department, except 
 where it is needed for the latter's guidance in 
 some matter calling for action or decision on 
 his part. Accordingly he can not render an 
 opinion to the Secretary of the Interior upon a 
 question wliich arose in the administration of 
 the office of Commissioner of Patents, and re- 
 lates to his duties under the law; as to do eo 
 would be to overstep the boundaries prescribed 
 for him by a long line of decisions and uniform 
 practice, and to commit himself upon a ques- 
 tion which might properly be submitted to him 
 thereafter by the Secretary of the Interior. 
 (21 Op. Atty. Gen., 174; 20 Op. Atty. Gen., 
 609, 723.) 
 
 The Attorney General's opinion can not be 
 asked upon questions relating only to the duties 
 of the Commission to the Five Civilized Tribes; 
 advice which can not be asked directly by the 
 Commissioners the Attorney General is not 
 authorized to furnish even when they put the 
 question through the head of a department. 
 His opinion should be needed for the guidance 
 of the head of a department, and should relate 
 to some matter calling for the latter's action or 
 decision. (20 Op. Atty. Gen., 724.) 
 
 The Attorney General is not the official legal 
 adviser of subordinate officers in tlie depart- 
 ments. It is true that he often gives the heads 
 of departments ad\'ice and opinions upon ques- 
 tions arising in the bureaus of their respective 
 departments, but such advice and opimons are 
 intended to aid only the judgment of the Sec- 
 retary himself in deciding such questions. To 
 enlarge the rule beyond this extent would not 
 only he unwarrantecl by law, but would convert 
 the Attorney General into a sort of general 
 appellate court, where dissatisfied claimants 
 might seek relief from adverse decisions and 
 subordinate executive officers find a way of 
 escaping from official labor and responsibility. 
 (11 Op. Atty. Gen., 4.) As to whether an excep- 
 tion exists in the special cases of questions aris- 
 ing in the War and Naw Departments, see 18 
 Op. Atty. Gen., 59, noteci under sec. 357, H. S.) 
 
 The Attorney General is not required to give 
 an opinion except on such questions as are 
 necessary to guide the heads of departments in 
 their actions. Accordingly he has no power to 
 give an official opinion ui)on questions referred 
 to him by the Secretary of the Treasurj-- for the 
 guidance not of the Secretary' Vmt of an auditor. 
 (20 Op. Atty. Gen., 251.) 
 
 The questions which the Attorney General is 
 required to answer are only those the decision 
 of which is needed to govern the action of the 
 
 302 
 
Justice Depaxtment. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 356. 
 
 head of a department in cases actually arising 
 therein, and the Attorney General must decline 
 to answer a question asked by the head of a 
 department which pertains only to the powers 
 and duties of a commission, although such a 
 commission is properly to be regarded as within 
 the department. (19 Op. Atty. Gen., 673.) 
 
 The Attorney General has no power to give 
 an official opinion on questions referred by the 
 Secretary of the Treasury at the request of an 
 auditor for the guidance of the latter, in a case 
 where, under the law, no appeal could be taken 
 from the auditor's action to the head of the 
 Treasury Department. The question there- 
 fore was not pending before the Secretary of the 
 Treasury and evidently could not reach him. 
 ill Op. Atty. Gen., 4.) 
 
 The Attorney General has no authority to 
 give an opinion to the Secretary of the Treasury 
 upon questions relating to the past action of the 
 Board of Supervising Inspectors, which is not 
 reviewable by the Secretary. (18 Op. Attv. 
 Gen., 77.) 
 
 The Attorney General declines to express an 
 opinion upon a question asked him by the Sec- 
 retary of the Interior for the reason that it is not 
 predicated upon an actual case arising in the 
 department; and also because that department 
 has an officer clothed with authority to deter- 
 mine questions of that nature in the first in- 
 stance, coming up on appeal from the Pension 
 Bureau. (24 Op. Atty. Gen., 556.) 
 
 Wliere the question is one within the exclu- 
 sive jurisdiction of the Comptroller of the Treas- 
 ury, the Attorney General will not render an 
 opinion upon the request of the Secretary of the 
 Treasury. If, however, the matter is one upon 
 which ti.e Secretary's action will be necessary, 
 an opinion will be rendered on it. (20 Op. 
 Atty. Gen., 279.) [In 23 Op. Atty. Gen., 30, 
 the Attorney General rendered an opinion with 
 reference to the question of pay of certain naval 
 officers on promotion, which was pending before 
 the Comptroller of the Treasury; in this case 
 the Secretary of the Treasury requested the 
 opinion of the Attorney General upon certain 
 questions proposed by the Comptroller of the 
 Treasury and transmitted with the Secretary's 
 note. The opinion was for the guidance of the 
 Comptroller. See also below, "Jurisdiction, At- 
 torney General and Comptroller of the Treas- 
 ury."] 
 
 With reference to the question whether the 
 accounting officers of the Treasury may legally 
 allow claims for transportation upon requests 
 fraudulently issued by an officer of the Army, 
 which question was transmitted to the Attorney 
 General by indorsement of the Secretary of the 
 Treasury on a letter of the Comptroller of the 
 Treasmy, the Attorney General rendered an 
 opinion to the Secretary. (23 Op. Atty. Gen., 
 161.) 
 
 Upon request of the Secretary of the Treasury, 
 the Attorney General rendered an opinion upon 
 questions proposed by the Comptroller of the 
 Currency. (27 Op. Atty. Gen., 324.) [In 27 
 Op. Atty. Gen., 38, the Attorney General 
 expressed doubt as to whether he was required 
 to render an opinion to the Secretary of the 
 Treasury upon questions referred to him at the 
 instance of the Comptroller of the Currency, 
 requiring action by the latter, although the 
 
 comptroller could perform the duty only under 
 the general direction of the Secretary. How- 
 ever, as a matter of courtesy and public policy, 
 the doubt was resolved in favor of the propriety 
 of rendering the opinion requested.] 
 
 Wni not answer question submitted by 
 head of department merely for informa- 
 tion of Congress. — The Attorney General will 
 not render an opinion upon a claim which has 
 aheady been administered by the head of a 
 department, who submits the question to hhn 
 at the request of a committee of Congress. (15 
 Op. Atty. Gen., 138.) 
 
 Congress has not thought proper to empower 
 its committees to require the Attorney General's 
 opinion directly, and he will not render an 
 opinion upon the request of the head of a de- 
 partment at the suggestion of a congressional 
 committee where it is not required for the 
 guidance of the head of the department. (15 
 Op. Atty. Gen., 138.) 
 
 Where a call for an opinion from the Attorney 
 General was made by the head of a department 
 in comphance with a resolution of the House 
 of Representatives, for the information of the 
 latter, without reference to any question of 
 law arising in the administration of such de- 
 partment, the Attorney General is without 
 authority to give an official opinion in such 
 case. (18 Op. Atty. Gen., 107.) (In this case 
 the Attorney General's opinion had previously 
 been directly requested by resolution of the 
 House of Representatives and declined. (See 
 18 Op. Atty. Gen., 87.) 
 
 The Attorney General is not authorized to 
 give his official opinion to the head of a de- 
 partment upon a question not involving de- 
 partmental administration but referred to him 
 at the request of a Senator in order that such 
 opinion might be laid before a committee of the 
 Senate. (17 Op. Atty. Gen., 358.) 
 
 The Attorney General is not authorized to 
 render an opinion upon the request of a head 
 of department, upon a question not demanding 
 any present official action by the latter but 
 intended for the information of a congressional 
 committee. (22 Op. Atty. Gen., 85.) 
 
 Will not answer question submitted by 
 head of department merely for informa- 
 tion of contractors. — It is not the duty of the 
 Attorney General, nor has he a right, to give 
 an official opinion with a view to the guidance 
 of persons who may propose to enter into con- 
 tract relations with the United States. It is 
 not permissible for the Attorney General to 
 give an opinion except in a case actually arising 
 in the administration of one of the departments. 
 (20 Op. Atty. Gen., 465.) 
 
 The function of the Attorney General is to 
 advise the several heads of the other executive 
 departments upon the questions of law which, 
 in the administration of their respective de- 
 partments, they are required to decide. But 
 the head of a department is not required by 
 law to become the legal adviser of a party pro- 
 posing to enter into a contract with the Govern- 
 ment. Where the Attorney General's opinion 
 is requested by the head of a department to 
 enable the latter to advise contractors, the At- 
 torney General is not authorized to give an 
 opinion. (20 Op. Atty. Gen., 463.) 
 
 303 
 
Sec. 356. 
 
 Pt. 2. REVISED STATUTES. 
 
 Justice Department. 
 
 It is clear that a question propounded !>>• a 
 Government contractor is one which the Secre- 
 tary of the Treasury is not called upon to answer; 
 hence it is not, witliin the language of this sec- 
 tion, "a question of law arising in the adminis- 
 tration of his department." (20 Op. Atty. 
 Gen., 500, 502.) 
 
 The Attorney General is not authorized to 
 render an official opinion at the request of the 
 head of a department where the information is 
 desired for tne guidance of certain prospective 
 bidders, as the question is not one which such 
 head of department is called upon to decide in 
 the administration of his department. (28 
 Op. Atty. Gen., 534.) 
 
 Will not answer question submitted by- 
 head of department in ■which United 
 States has no interest. — The Attorney Gen- 
 eral will not render an opinion upon a question 
 where it appears upon a perusal of the papers 
 that the L'nited States have no interest in the 
 incjuiry, and consequently that any opinion 
 on his part would be not only gratuitous but 
 unauthorized. (2 Op. Atty. Gen., 311.) 
 
 It is not the duty of the Attorney General to 
 give official opinions except in cases in which 
 the Government is interested. Nor will the 
 Attorney General render an unofficial opinion 
 in such a case, even as an individual, because 
 in the relation he stands to the Government an 
 opinion from him on the subject might be 
 looked upon as an official one, and thus con- 
 nect the Government with an individual con- 
 troversy in which it has no concern and with 
 which it ought not to interfere. (2 Op. Atty. 
 Gen., 531.) 
 
 The question whether a bond taken by the 
 collector of a port from one of his subordinates, 
 for his own protection, is valid in the absence 
 of a statute authorizing it, not appearing to be a 
 question in which the United States are con- 
 cerned, or one arising in the administration of 
 a department, the Attorney General decHnes 
 to give an official opinion thereon. (19 Op. 
 Atty. Gen., 556.) 
 
 Questions of law, of concern to private 
 parties, and in which the Government has no 
 interest, are to be settled by courts and juries. 
 The individuals may, if they choose, consult 
 counsel on such questions for their own guid- 
 ance; but the law gives them no authority to 
 bring such questions to the head of a depart- 
 ment, nor will the Attorney General render his 
 opinion thereon upon request of the latter. (1 
 Op. Atty. Gen., 575.) 
 
 The Attorney General is not to give advice 
 to heads of departments on matters which do 
 not concern their departments, and in which 
 the United States have no interest; nor is he 
 authorized to give official opinions in any case 
 not falling within the scope of his duties, so 
 as to connect the Ciovemment with individual 
 controversies in which it has no concern and 
 with which it ought not to interfere; nor ought 
 he to advise individuals in regard to any ques- 
 tion of legal right depending between them and 
 the Government. (6 Op. Atty. Gen., 326, 334.) 
 
 It is not the duty of the Attorney General to 
 give an opinion on a question with which the 
 Government has no present concern. (9 Op. 
 Atty. Gen., 355; 19 Op. Atty. Gen., 414.) He 
 has no authority to give any opinion or advice 
 
 on questions of law except for the assistance of 
 the oflScer calling for his opinion. (3 Op. Atty. 
 Gen., 309.) 
 
 The Attorney General is not authorized to 
 answer questions of law submitted to him by 
 the Secretary of the Interior only at the request 
 of the ("herokoe Nation and which do not con- 
 cern the "administration" of the Interior 
 Department. (IG Op. Atty. Gen., 404.) 
 
 The question whether, if a certain American 
 steamer shall be rebuilt in Canada, she can be 
 reregistered on her return as a vessel built in 
 the United States is not for the present action 
 of the Secretary of the Treasury, but that the 
 owners of the vessel may know what his future 
 action would be in case they decided to have 
 the repairs done in Canada. It would not be 
 proi)er for the Attorney General to give the 
 opinion requested. (20 Op. Atty. Gen., 723; 
 following 20 Op. Atty. Gen., 667, as to whether 
 a Chinaman resident of the United States could 
 lawfully return if he should revisit his native 
 country.) 
 
 Where a question presented to the Attorney 
 General by the Secretary of War is one of 
 strictly private concern to certain officers of 
 the Army and in no sense of pubUc interest, it 
 is not a question arising in the administration 
 of the War Department on which the Attorney 
 General will render an opinion. The obvious 
 course for such officers to pursue is that which 
 is open to every person inclined to pursue a 
 course as to the legal consequences of which he 
 is in ignorance or doubt. He should seek the 
 advice of private counsel learned in the law 
 and obtain their opinion, for which if given 
 without due care such counsel can be held to 
 a personal accountability. (21 Op. Atty. Gen., 
 510.) 
 
 The question whether a retired officer of the 
 Army can accept another public office is not a 
 subject with which the United States can be 
 concerned until some action has been taken by 
 such officer contrary to law. Manifestly, the 
 solution of that question by any retired officer 
 of the Army and the course of conduct which he 
 may adopt in pursuance of that solution, is a 
 matter of his private concern only. The At- 
 torney General can not, therefore, render an 
 opinion upon the questicm at the request of the 
 Secretary of War, as the Attorney General is 
 not permitted to give an opinion as to the con- 
 struction or interpretation of a statute except 
 in an actual case which has arisen before one 
 of the executive departments calling for its 
 action in the regular course of its affairs. (21 
 Op. Atty. Gen., 510; but see 29 Op. Atty. Gen., 
 397, where the Attorney General rendered an 
 opinion to the Secretary of the Navy upon a 
 somewhat analogous question, viz, whether a 
 retired officer of the Marine Corps could accept 
 compensation for appearing as counsel before 
 any department, court-martial, etc.; and in 29 
 Op. Atty. Gen., 503, the Attorney General ren- 
 dered an opinion concerning the legality of 
 appointing a retired officer of the Navy as a 
 clerk in the civil service, but in this case the 
 appointment had already been made, and the 
 opinion was requested by the President.) 
 
 Will not answer question unless it arises 
 in the department which requests opin- 
 ion, — The Attorney General is not authorized 
 
 304 
 
Justice Department. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 356. 
 
 by statute or precedent to respond by an official 
 opinioD as to a question of law not arising in the 
 department from which the inquiry is sent. 
 (20 0p. Atty. Gen.,50.) 
 
 "WTiere there is no way of enforcing a statute 
 except tlirough the courts, the question is one 
 arising in the Department of Justice, and the 
 official opinion of the Attorney General can not 
 be required thereon by the head of another 
 department. (21 Op. Atty. Gen., 6.) 
 
 The question whether or not to commence a 
 civil action or a criminal prosecution is one 
 which must ordinarily be decided by some 
 officer of the Department of Justice, and is not, 
 therefore, a question upon which the opinion 
 of the Attorney General can be requested by 
 the head of another department. If any other 
 department of the Government is informed of 
 facts which seem to require such action to be 
 taken, its duty is to communicate them, to- 
 gether with any suggestion which it desires to 
 make, to the Department of Justice, whose 
 duty it is to decide whether proceedings shall 
 be instituted, and if so, against whom. (21 
 Op. Atty. Gen., 509.) 
 
 The Attorney General will not, at the request 
 of the head of a department, re\dew the deci- 
 sion of the head of another department, which 
 latter department had complete and lawful 
 jurisdiction. (11 Op. Atty. Gen., 189; Op. Attv. 
 Gen., Nov. 7, 1917, file 26510-1022:11, C. M. O. 
 37-1918, p. 21). 
 
 The power of the Attorney General to give an 
 opinion on request of the head of a department 
 is confined to questions arising in the adminis- 
 tration of the department calling for the opinion . 
 T^Tiere a question had been finally disposed of 
 by the War Department, but the accounting 
 officers had gone behind the Secretary's action 
 and decided the case against the claimant, it is 
 quite evident that the questions involved have 
 no relation to a matter before the War Depart- 
 ment for action. (20 Op. Atty. Gen., 588.) 
 
 The question whether a former employee can 
 be reinstated in a department is not a question 
 pending in that department, but in the Civil 
 Service Commission, which is vested with 
 authority in the matter of certification. Ac- 
 cordingly, when the commission has exercised 
 that authority, no question remains with the 
 department upon which the statute permits the 
 Attorney General to render an opinion upon 
 request of the Secretary. (20 Op. Atty. Gen., 
 270; 20 Op. Atty. Gen., 158.) 
 
 The eligibility of a person for appointment 
 in a department under the civil serAdce is not 
 a question arising in the department, but is one 
 uiider the jurisdiction of the Civil Service Com- 
 mission. The Attorney General can not, there- 
 fore, render an opinion upon request of the 
 head of the department. (28 Op. Atty. Gen., 
 393.) The law and uniform practice of the 
 Attorney General precludes him from respond- 
 ing. (28 Op. Atty. Gen., 431.) 
 
 ^\^lere a law provides for indemnity to officers 
 and enlisted men of the Army, and vests the 
 accounting officers of the Treasury with juris- 
 diction to determine whether the loss occmred 
 under the circumstances set forth in the act, 
 the Attorney General will not render an opinion 
 
 to the Secretary of War upon the question, as it 
 does not appertain to the administration of the 
 War Department. (19 Op. Atty. Gen., 693.) 
 
 Where an auditor directs a suspension against 
 an officer of the Army, the same being the 
 amount of an alleged excessive allowance made 
 to liim by the Deputy Paymaster General, such 
 action of the auditor does not relate in any way 
 to a matter which requires the action of the 
 Secretary of War as falling within the scope of 
 his official duties. The Attorney General will 
 express no opinion where the matter is not one 
 requiring the official action of the head of the 
 department. (20 Op. Atty. Gen., 420.) 
 
 The Attorney General is not authorized to 
 give an opinion to the Secretary of the Treasury 
 as to the proper construction of a pension appro- 
 priation act, inasmuch as it appears that the 
 Treasury Department is bound by the rulings 
 of the Department of the Interior in construing 
 that law, and therefore no question is pending 
 in the Treasury Department arising in the 
 administration of that department. (20 Op. 
 Atty. Gen., 178.) 
 
 The propriety of keeping every branch of the 
 executive Government within its legal sphere 
 is clear. The confusion which would unavoid- 
 ably ai-ise if one branch was permitted to usurp 
 the functions of another would be disastrous to 
 the proper work of the whole. When, there- 
 fore, a "difference of opinion" arises between 
 several executive departments as to the con- 
 struction of the law, the primary question is as 
 to which is vested with the determination and 
 responsibility of the question. That only one 
 can have jurisdiction over the subject matter 
 is plain. (20 Op. Atty. Gen., 178, 180.) 
 
 The Attorney General, upon request of the 
 Secretary of the Na\'y, will render an opinion 
 as to the validity of a Navy regulation, and 
 whether it is binding upon the accounting 
 officers, in a case where the Comptroller of the 
 Treasiuy had previously held the regulation 
 to be void, and declined to concm- in a refer- 
 ence of the question to the Attorney General. 
 (30 Op. Atty. Gen., 376, 171 S.andA. Memo., 
 3611, reversing21Comp.Dec.,554, 357, 245.) 
 
 Where a claim pending in the Department of 
 State was referred by the Secretary of State to 
 the Secretary of the Treasury for the latter's 
 opinion, this did not make the question one 
 arising in the Treasury Department and author- 
 ize the Secretary of the Treasmy to require an 
 opinion of the Attorney General on it. The 
 whole subject belonged and still belongs to the 
 State Department. The Attorney General 
 can not give an opinion upon a matter referred 
 to him by the head of a department who is not 
 authorized to act on such matter. (20 Op. 
 Atty. Gen., 249.) 
 
 The Attorney General can not render an 
 opinion to the Secretary of the Treasury upon 
 a question concerning the Board of Health of 
 the District of Columbia, such question not 
 arising in the administration of any of the Ex- 
 ecutive Departments. (13 Op. Atty. Gen., 535.) 
 
 The Attorney General decHnes to render an 
 opinion upon a question not arising in the 
 administration of the department asking the 
 opinion. (29 Op. Atty. Gen., 226.) 
 
 305 
 
Sec. 356. 
 
 PL 2. REVISED STATUTES. 
 
 Justice Department. 
 
 The Attorney General will not render an 
 o])inion upon the request of the head of a 
 dopurtmeut where it is intended for the in- 
 fornuition of a commission appointed to revise 
 the hvw3 of the United States. The commis- 
 sion was invested by Congress with discretion 
 to determine what existing laws are of a per- 
 manent and general nature. \\'here the chair- 
 man of the commission asked the head of a 
 dei)artmeut whether a portion of the revision 
 correctly embodied the provisions of existing 
 law upon that subject, that did not make the 
 cjuestion one arising in the department requir- 
 ing a determination thereof. The question was 
 one essentially arising in the commission, and 
 not therefore one upon which it was the duty 
 or province of the head of the department to 
 act. (25 Op. Atty. Gen., 584.) 
 
 [The Attorney General rendered an opinion 
 to the Secretary of the Interior upon a ques- 
 tion not pending before that department, viz, 
 as to the sufficiency of the return of a public 
 contract made by the Secretary of the Navy; 
 because, while the question was not pending 
 before the Interior Department, it was proper 
 that the Secretary of the Interior should be 
 advised whether the case submitted presented 
 a violation of the statute, since it is his duty to 
 call apparent violations of the statute to the 
 attention of the Department of Justice. (29 
 Op. Atty. Gen., 293.)] 
 
 Will not answer a judicial question. — 
 Where questions propounded are judicial in 
 character and must be decided by the courts, 
 if decided at all, an expression of an opinion 
 on them by the Attorney General would have 
 no more weight than the opinion of any unoffi- 
 cial person. The Attorney General must 
 confine his opinions to questions strictly ap- 
 pertaining to executive administration. (20 
 Op. Atty. Gen., 383.) 
 
 The Department of Justice has always been 
 reluctant to pass upon questions which properly 
 belong to the judicial rather than to the execu- 
 tive branch of the Government. (20 Op. 
 Atty. Gen., 673; 19 Op. Atty. Gen., 56.) 
 
 The Attorney General declines to render an 
 opinion upon a question judicial in character. 
 (29 Op. Atty. Gen., 226.) 
 
 The statutes in providing for official opinions 
 by the Attorney General did not intend to 
 cover questions which are substantially a re- 
 quest for advice as to whether or not a prose- 
 cution had better be instituted. The Attorney 
 General's opinion on such a question w-ould 
 not bind a court in any way. It could as well 
 be asked before instituting every civil suit or 
 prosecution for crime. (20 Op. Atty. Gen., 673.) 
 
 The organic distinctions between the tliree 
 great divisions of Government established 
 by the Constitution must be respected or 
 collisions and discords inimical to good gov- 
 ernment will inevitably take place. The 
 executive department of the Government 
 is not warranted in assuming to determine 
 a controversy properly cognizable by the 
 judicial department of the Government. For 
 the Attorney General to render an opinion 
 might be regarded as an attempt of the execu- 
 tive branch of the Government to forestall 
 judicial proceedings. (19 Op. Atty. Gen., 56.) 
 
 [This case involved the j)ower of the State of 
 California to divest certain rights claimed by 
 the Indians.] 
 
 The Attorney General has always exliibited 
 great and proper reluctance to pass upon any 
 question whose answer might bring the Depart- 
 ment of Justice into conflict with a judicial 
 trilninal. (20 Op. Atty. Gen., 618.) 
 
 The Department of Justice will not consider 
 any question committed to judicial review. 
 To do so might l)ring it in conflict with a judi- 
 cial tribunal. (24 Op. Atty. Gen., 59; 23 Op. 
 Atty. Gen., 221.) 
 
 The Attorney General can not g'\e an 
 opinion upon a judicial question, such as 
 whether or not the head of a department has 
 any remedy at law against private parties 
 who have had dealings with the Government. 
 (21 Op. Atty. Gen., 369.) 
 
 The Attorney General declines to give an 
 opinion where the question presented is a 
 judicial one (whether an objection made to 
 the naturalization of an alien should have 
 been sustained). (29 Op. Atty. Gen., 99.) 
 
 It is not the practice of the Department of 
 Justice to give an opinion in a matter where 
 the question involved is disputable and is the 
 subject of a pending suit, as such action would 
 be equivalent to expressing an opinion as to 
 whether the question ought to be decided 
 in favor of the Government and might Ijring 
 the department into conflict with a judicial 
 tribunal. (23 Op. Atty. Gen., 221.) 
 
 The question whether a proceeding under 
 any law would or would not be successful 
 is a judicial question, on which it is not neces- 
 sary or proper for the Attorney General to give 
 an official opinion. (22 Op. Atty. Gen., 181.) 
 
 It is inexpedient for the Attorney General 
 to render an official opinion as to whether a 
 civil suit or criminal prosecution, if brought 
 by the Government, ought to be decided by the 
 courts in its favor, such question being essen- 
 tially judicial in character. (20 Op. Atty. 
 Gen., 702.) 
 
 "Whether or not an express company or its 
 agents in carrying unmailable matter is guilty 
 of a crime for which the statutes impose a 
 penalty is essentially judicial in character, 
 and one wliich must ultimately be decided 
 by the judicial department of the Govern- 
 ment. The Attorney General will not decide 
 such question further than to say that the 
 facts stated seem to make a prima facie case, 
 and to render it proper that the Postmaster 
 General should direct a prosecution of the 
 guilty parties. Such prosecution will result 
 in a judicial construction of the law. (19 Oj). 
 Atty, Gen., 670.) 
 
 The question of the right of a State to tax 
 lands in an Indian reservation is judicial and 
 not administrative. The Attorney General 
 ought not to express an opinion upon it. The 
 better coxirse would be to make a test case, with 
 a view to the determination of the Federal 
 question by the Supreme Court of the United 
 States. The Attorney General will be glad to 
 cooperate with the officer requesting his opinion 
 in the proper measures to get a judicial deter- 
 mination of the important question involved. 
 (20 Op. Atty. Gen., 277.) 
 
 306 
 
Justice Department. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 356. 
 
 Whether any giveu acts or practices consti- 
 tute a crime is a question for the determination 
 of the courts, not of the Executive Departments, 
 except where some executive action depends 
 upon that determination. Such are not ques- 
 tions of law arising in the administration of the 
 department asking an opinion. (20 Op. 
 Atty. Gen., 210.) [The question in this case 
 was whether or not pictures of coins constitute 
 a violation of an act defining a criminal offense 
 and prescribing the penalty upon conviction 
 thereof.] 
 
 Statutes of limitation apply to the legal reme- 
 dies and not to the rights of the parties. 
 Whether the statute of limitations does or does 
 not bar a claim on behalf of the Government is, 
 therefore, a judicial question to be determined 
 by the courts and not bv the Attorney General. 
 C21 Op. Atty. Gen., 557, 564.) 
 
 The matters covered by certain questions 
 submitted for opinion held clearly justiciable 
 in the appropriate courts at the suit of the par- 
 ties themselves who are interested in them. 
 They are essentially judicial in their character, 
 and as each is readily resolvable into a case at 
 law or in equity it can not be said to be a ques- 
 tion arising in a course of executive adminis- 
 tration. (19 Op. Atty. Gen., 56.) 
 
 The jurisdiction of consuls as courts is a 
 judicial question, subject to review by regular 
 appeal provided by statute, and any opinion 
 thereon would be beyond the power conferred 
 upon the Attorney General and might be re- 
 garded as an invasion by the executive branch 
 of the Government of another and independent 
 branch, so far as judicial functions are exer- 
 cised. [Also, in this case the question was 
 purely hypothetical.] (20 Op. Atty. Gen., 391, 
 393.) 
 
 The Attorney General can not properly ex- 
 press an official opinion upon a question which 
 must ultimately be decided by the courts. 
 [Also in this case the question had already 
 been decided by the department and was pre- 
 sented to the Attorney General merely because 
 of therequestof counsel for parties interested.] 
 (28 Op. Atty. Gen., 596.) 
 
 The Attorney General can not answer the 
 question whether a regulation if issued under 
 the tariff act could be enforced, as the question 
 is both hypothetical and_ judicial j involving 
 speculation as if the requirement is adopted, 
 proceedings in court to enforce it may or may 
 not be successful. (25 Op. Atty. Gen., 93.) 
 
 The Attorney General can not properly pass 
 upon the question whether the courts in this 
 country have authority to execute letters roga- 
 tory issued out of the German Patent Office, as 
 that is a matter for judicial and not for execu- 
 tive determination. "I can not speak for the 
 courts. It is for the different courts of the 
 various jurisdictions. Federal and State, to say 
 when the motion comes before them for deci- 
 sion, whether or not they have the necessary 
 authority in the premises." (24 Op. Atty. 
 Gen., 69.) 
 
 Declines to express an opinion as to the lia- 
 bility of the postmaster at Baltimore, Md., for 
 a sum of money paid by him to a former clerk 
 in the Baltimore post office and for which no 
 service was performed, for the reason that the 
 question is essentially a judicial one, amount- 
 
 ing to an inquiry whether in regular legal pro- 
 ceedings a court and jury would hold that 
 officer liable. Advised, however, that the cir- 
 cumstances may be regarded as showing a prima 
 facie case of liability, calling for action in the 
 way of securing a judicial determination of the 
 question of Liability. (25 Op. Atty. Gen., 97.) 
 
 DecUnes to express an opinion upon question 
 whether a willful refusal to give true answers 
 to inquiries concerning census statistics would 
 subject a person to the penalties prescribed by 
 a certain law, for the reason that the question 
 is preeminently one for judicial and not execu- 
 tive determination. Whatever the proper con- 
 struction of the law may be, the punishment 
 referred to could be inflicted in no other way 
 than by proceedings in court. (25 Op. Atty. 
 Gen., 369.) 
 
 Whether proceedings by court-martial would 
 bar proceedings in the civil courts for an assault 
 or other crime involved in the offense of hazing, 
 not answered, for the reason that it would be 
 of no assistance to the Secretary of the Navy or 
 the Sui^erintendent of the Naval Academy in 
 the proper discharge of their duties ; and should 
 such action be taken the matter would pecu- 
 liarly be one for the consideration of the Depart- 
 ment of Justice. (25 Op. Atty. Gen., 543.) 
 
 Whether a suit by the Government to enforce 
 recovery from the owners of a vessel of amounts 
 expended by the United States in the trans- 
 portation back to this country of destitute 
 seamen would be successful is speculative and 
 hypothetical, and beyond the powers and 
 functions of the Attorney General ujider the 
 statutes to answer. The question of the actual 
 Liability of the vessel owners is judicial in its 
 nature, and must be determined by the courts. 
 (26 Op. Atty. Gen., 631.) 
 
 If any conflicting claims should arise between 
 the Federal and State governments as to juris- 
 diction over lands owned by the United States, 
 they will be judicial questions. (10 Op. Atty. 
 Gen., 34.) 
 
 IV. Form of Request for Opinion. 
 
 Facts must be definitely stated. — When 
 an opinion is requested of the Department of 
 Justice on behalf of the head of another Execu- 
 tive Department, the facts must be definitely 
 formulated and clearly stated by the person 
 asking the opinion. The Attorney General can 
 not be required to extract a finding of facts 
 from correspondence or reports. (22 Op. Atty. 
 Gen., 342.) 
 
 The Attorney General can not give official 
 opinions without a definite statement of the 
 facts upon which the question is submitted. 
 (21 Op. Atty. Gen., 36; 28 Op. Atty. Gen., 393.) 
 
 The Attorney General can not properly make 
 a statement of the facts for his own use out of 
 the correspondence submitted to him for an 
 opinion. "The facts upon which the question 
 is submitted should be agreed and stated as 
 facts established." (21 Op. Atty. Gen., 36; 12 
 Op. Attv. Gen., 206; 20 Op. Atty. Gen., 440; 
 18 Op. Atty. Gen., 488; 9 Op. Atty. Gen., 82.) 
 
 The reason for this is that if the Attorney 
 General should render an opinion upon such a 
 case as he might collect from the papers, he 
 might not see the case in all its parts in the same 
 light as that in which it is seen by the officer 
 
 307 
 
Sec. 366. 
 
 Pt.2. REVISED STATUTES. 
 
 Justice Department. 
 
 requesting liis opiuion. (21 Op. Atty. Gen., 36; 
 19 Op. Atty. Gen., 396.) 
 
 Also, by obspn-ing the simple rule of stating 
 the material facts of the case and the precise 
 questions on wliich advice is wanted, "the real 
 point of diflliculty in the ca.>^e will be at once 
 perceived, much inconvenience avoided, and 
 more practicable and satisfactory results ob- 
 tained." (21 Op. Atty. Gen., 36; 14 Op. Atty. 
 Gen., 367, 368.) 
 
 The head of the department requesting an 
 opinion need not hunself state the facta, but it 
 is essential that the facta should be laid before 
 the Attorney General ^vith the assurance of the 
 head of the department that they are accurate 
 and tmstworthy. The Attorney General is 
 willing to disregard any informality in the 
 manner of presenting such facts. (10 Op. Atty. 
 Gen., 267.) 
 
 It is not within the competency of the Attor- 
 ney General to make a finding of facts in any 
 case; he can only give his opinion on questions 
 of law arising upon a statement of facts pre- 
 sented by the officer requesting liis opinion. 
 (19 Op. Atty. Gen., 696.) 
 
 The Attorney General must have a definite 
 statement of the facts before responding to a 
 request for his opinion. (21 Op. Atty. Gen., 36; 
 18 Op. Atty. Gen., 487.) 
 
 The Attorney General will lay aside the evi- 
 dence submitted for his consideration with re- 
 quest for an opinion, and take as the case for 
 opinion the statement contained in the com- 
 munication from the head of the department. 
 (19 Op. Atty. Gen., 547.) 
 
 "^Tiere papers containing evidence accom- 
 pany request for an opinion, the Attorney 
 General will not examine same but will assume 
 that all the facts have been found in favor of 
 the applicant. He can not consider questions 
 of fact iipon evidence submitted. (20 Op. Atty. 
 Gen., 253, 256.) 
 
 WTiether the facts are presented by the head 
 of a department in the form of a direct state- 
 ment or of an argumentative examination of the 
 circumstances can make no difference; they 
 must be accepted by the Attorney General as 
 the bases of Ids reflections and judgment in 
 rendering liis opinion. (3 Op. Atty. Gen., 1.) 
 
 It is inappropriate for the Attorney General 
 to re-\dew certain briefs and correspondence 
 submitted to Mm by the liead of a department 
 ^\ith request for an opinion thereon, as to do so 
 would require liim to consider questions of fact 
 and some questions of law which clearly have 
 not arisen m the administration of the depart- 
 ment. (27 Op. Atty. Gen., 49.) 
 
 It has been held from a verj^ early date that 
 to obtain an official opinion of the Attorney 
 General, the request therefor should embody a 
 statement of facts in the nature of an agreed 
 case in an action at law, and not leave it to the 
 Attorney General to draw inferences of fact from 
 correspondence or documents. (20 Op. Attv. 
 Gen., 614.) 
 
 WTiere no statement of the facts is presented, 
 the Attorney General can not render an opinion. 
 "Without, so far as I know a single exception, 
 it has been held that under section 356, Revised 
 Statutes, it is penni'ssible for the Attorney 
 General to give an opinion only upon a case 
 succinctly stated — that is, to answer specific 
 
 questions of law upon facta set forth." (20 Op. 
 Atty. Gen., 526, citing 19 Op. Atty. Gen., 396, 
 465; 18 Op. Atty. Gen., 487. See also 20 Op. 
 Atty. Gen., 493.) 
 
 "Accompanying the letter [requesting opin- 
 ion] is a considerable bundle of papers from 
 which it is apparently expected I vdW glean the 
 facts and then communicate the desired infor- 
 mation. I am very sorry that under the uni- 
 form ridings of this office I am unable to com- 
 ply with this request." (20 Op. Atty. Gen., 526.) 
 
 The Attorney General is not permitted by 
 statute to respond to a request for an opinion by 
 the head of a department which does not show 
 what the facts are. (21 Op. Atty. Gen., 506.) 
 
 It must be deemed settled that the Attorney 
 General can only act upon a determinate state- 
 ment of the facts furnished by the officer asking 
 his opinion. (10 Op. Attv. "Gen., 267; 11 Op. 
 Atty. Gen., 189; 21 Op. Atty. Gen., 506.) 
 
 Where an official oi)inion from the Attorney 
 General is desired on questions of law arising in 
 any case, the request should be accompanied 
 with a statement of the material facts of the 
 case. (21 Op. Atty. Gen., 506; 14 Op. Atty. 
 Gen., 367.) 
 
 To authorize the Attorney General to express 
 an opinion upon a question of law propounded, 
 it is necessary that a statement of the facts be 
 submitted showing that the question has actu- 
 ally arisen in the administration of a depart- 
 ment in an existing case calling for action. (22 
 Op. Atty. Gen., 85.) 
 
 The settled policy of the Department of Jus- 
 tice is that no opinion should be rendered upon 
 any question of law unless it is accompanied by 
 a statement or finding of the facts involved. 
 (24 0p. Atty. Gen., 59.) 
 
 " You do not give me as the basis for an opin- 
 ion any agreed statement of facts, but on the 
 contrary ask for an expression of my opinion 
 upon facts to be gathered from the inclosures of 
 your letter. It has been the invariable rule of 
 this department to decline to give an opinion 
 except when the request is 'accompanied by a 
 statement or findings of the facts involved.'" 
 (24 Op. Atty. Gen., 102, citing 23 Op. Atty. 
 Gen., 331.) 
 
 The Attorney General can not properly re- 
 view a record and memorandum submitted, and 
 render his opinion, based upon facts deduced 
 therefrom. (26 Op. Atty. Gen., 378.) 
 
 It has been the invariable rule of the Depart- 
 ment of Justice to decline to give an opinion 
 upon any question of law unless it is accom- 
 panied by a statement or finding of the facts in- 
 volved. (26 Op. Atty. Gen., 378, citing 23 
 Op. Atty. Gen., 330; 23 Op. Atty. Gen., 473; 24 
 Op. Atty. Gen., 59; 24 Op. Atty. Gen., 102.) 
 
 The facts upon which the question of law 
 arises must be found and definitely stated in the 
 request for an opinion, and not left for the Attor- 
 nev General to extract from the papers submit- 
 ted. (26 Op. Atty. Gen., 609.) 
 
 The Attorney General must express his regret 
 that the request of the Department of Justice, 
 so often made, which requires that a request for 
 an official opinion shall be accompanied by a 
 statement of the facts, should have been disre- 
 garded. (26 Op. Atty. Gen., 579.) 
 
 When the opinion of the Attorney General is 
 required by the head of an Executive Depart- 
 
 308 
 
Justice Department. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 356. 
 
 ment, it is necessary that the facts should be 
 plainly stated, and the question upon which the 
 opinion is desired should be specifically pro- 
 pounded. The Attorney General can not take 
 the responsibility of examining all the papers 
 in the case, and gathering therefrom a conclu- 
 sion as to what particular matters he shall pass 
 upon. [In this case the Secretary of War re- 
 ferred papers to the Attorney General by 
 indorsement "with request for opinion on the 
 questions presented by the Judge Advocate 
 General of the Army."] (22 Op. Atty. Gen., 
 498.) 
 
 Question of law must be specifically for- 
 mulated.— The settled policy of the Attorney 
 General is that no opinion should be rendered 
 upon any question of law unless it is specifically 
 formulated in a case actually arising in the ad- 
 ministration of a department. [In this case the 
 head of the department did not request an opin- 
 ion upon any specific question, but referred to a 
 communication inclosed.] (24 Op. Atty. Gen., 
 59.) 
 
 It has been the invariable rule of the Attorney 
 General to decline to give an opinion upon any 
 question of law unless it is "specifically formu- 
 lated." (26 Op. Atty. Gen., 378.) 
 
 The question of law upon which the opinion 
 of the Attorney General is desired must be 
 clearly and definitely formulated. (26 Op. 
 Atty. Gen., 609.) 
 
 The Attorney General can not give an opinion 
 upon a general subject but only on one or more 
 specific questions of law based on a case stated. 
 (20 Op. Atty. Gen., 249.) 
 
 The precise question on which advice is 
 wanted must be stated. The omission to 
 specify any particular points of law for an opin- 
 ion would alone prevent the Attorney General 
 acting on the case. (21 Op. Atty. Gen., 36; 19 
 Op. Atty. Gen., 396; 14 Op. Atty. Gen., 367, 
 368; 18 Op. Atty. Gen., 487.) 
 
 It is inappropriate for the Attorney General 
 to review certain briefs and correspondence 
 submitted to him by the head of a department 
 with request for an opinion thereon, as to do so 
 would require him to consider questions of law 
 which clearly have not arisen in the administra- 
 tion of the department. (27 Op. Atty. Gen., 49.) 
 
 It is permissible for the Attorney General to 
 give an opinion only upon a case succinctly 
 stated — that is, to answer specific questions of 
 law arising upon facts set forth. (20 Op. Atty. 
 Gen., 526; 19 Op. Atty. Gen., 396; 19 Op. Atty. 
 Gen., 465; 18 Op. Atty. Gen., 487.) 
 
 Where an official opinion of the Attorney Gen- 
 eral is desired on questions of law arising in any 
 case, the request should be accompanied with a 
 statement of the precise questions on which 
 advice is wanted. (21 Op. Atty. Gen., 506; 
 14 0p. Atty. Gen., 367.) 
 
 When the opinion of the Attorney General is 
 requested by the head of a department it is 
 necessaiy that the question upon which the 
 opinion is desired should be specifically pro- 
 pounded. The Attorney General can not take 
 the responsibility of examining all the papers 
 in the case and gathering therefrom a conclusion 
 as to what particular matters he shall pass upon. 
 (22 Op. Atty. Gen., 498.) 
 
 The Attorney General must express his regret 
 that the request of his department, so often 
 
 made, which requires that a request for an 
 official opinion shall so formulate a precise 
 question that it may be answered as a question 
 of law, should have been disregarded. (26 Op. 
 Atty. Gen., 579.) 
 
 Should be accompanied by opinion of law 
 oflicer of department making inquiry. — In 
 a communication addressed by the Attorney 
 General to the heads of ail the Executive De- 
 partments under date of October 15, 1906, it 
 was suggested "that Executive Departments 
 having a law officer, for example, the Judge 
 Advocate General of the Army or of the Navy, 
 the Comptroller or Solicitor of the Treasmy, 
 the Assistant Attorney General for a depart- 
 ment, when desiring an opinion of the Attorney 
 General, accompany the request therefor with 
 the written opinion of such law officer; referring 
 to all legislation or decisions or any ruUng, 
 usage, or practice of the department, affecting 
 the question; and with a brief statement of 
 such reasons, for and against such opinion, as 
 may occm- or be presented to him." (File 
 49-38; file 22724-16:1, Jan. 25, 1911; file 22991-1, 
 Dec. 29, 1914.) 
 
 "It does not appear from yom- letter that an 
 opinion upon these questions by the law officer 
 of your department has been obtained. * * * 
 It seems to me that, before attempting to 
 answer the questions submitted, I should have 
 the benefit and assistance of such an opinion 
 by the Judge Advocate General, or at least a 
 memorandum by him 'referring to all legisla- 
 tion or decisions or any ruling, usage, or prac- 
 tice' of your department affecting these ques- 
 tions. If, after such an opinion or memoran- 
 dum has been prepared by that officer, you 
 still desire my advice in the premises, I shall 
 be pleased to respond to your request for my 
 opinion upon the questions presented." (At- 
 torney General to Secretary of the Navy, Jan. 
 25, 1911, file 22724-16:1; see also letter from 
 Attorney General to Secretary of the Navy. 
 Jan. 20, 1915, file 27223-12.)' [In the latter 
 case, after obtaining the opinion of the Judge 
 Advocate General, the Secretary of the Navy 
 withdrew his request for the Attorney General's 
 opinion, stating that he no longer entertained 
 doubt upon the question presented. File 
 27223-12, Jan. 27, 1915.] 
 
 "I beg leave respectfully to suggest that it 
 would very much tend to facilitate my inquiries 
 in references made from yom" department, and 
 probably to promote the public interest, if 
 these were accompanied by a statement show- 
 ing the views of the department in relation to 
 the several acte which are supposed to be 
 involved in the inquiry, and the precedents, if 
 any, which are to be found in its archives." 
 (2 Op. Atty. Gen., 311, to the Secretarj-^ of the 
 Navy.)_ 
 
 "It is directed that all requests for opinions 
 of the Attorney General be accompamed by 
 the written opinion of the Judge Advocate Gen- 
 eral or the solicitor, who will also prepare the 
 request for the Attorney General's opinion in 
 accordance with articles K-117 (1) and 134 (2), 
 Navy Regulations, 1913." (Order Sec. Nav.. 
 Jan. 15, 1915, file 22991-1 . See also file 20400- 
 200, Op. 13, Sept. 25, 1920. quoting letter from 
 Atty. Gen. to Sec. Navv, Sept. 13, 1920, file 
 204625.) 
 
 309 
 
Sec. 356. 
 
 Pt.2. REVISED STATUTES. 
 
 Justice Department. 
 
 V. Weight of Opinions. 
 
 Are conclusive on administrative oflB.- 
 cez's. — The law inteiuls that the opinions of 
 the Attorney General >shonl(l have authority. 
 (20 Op. Atty. Gen., 388.) 
 
 Congress evidently contemplated that the 
 official opinions, signed or indorsed by the 
 Attorney General, should have some actual and 
 practical force. (See sec. 358, R. S.) Con- 
 gress's intention can not be doubted tnat ad- 
 ministrative ofiicers should regard them as law 
 until withdrawn by the Attorney General or 
 overruled by the com'ts, thus confirming the 
 view which generally prevailed, though some- 
 times hesitatingly expressed, previous to the 
 establishment of the Department of Justice. 
 (20 Op. Atty. Gen., 654, 659 quoted ^vith ap- 
 proval in Smith v. Jackson, 241 Fed. Rep., 747; 
 affirmed 246 U. S., 388; 20 Op. Attv. Gen., 
 719, 722.) 
 
 The ruling of the Attorney General upon a 
 
 Suestion submitted by the Secretary of the 
 avy, although the validity of a disbursement 
 was involved which had been otherwise de- 
 cided by the Comptroller of the Treasury is 
 binding upon the Department of Justice and 
 upon other departments of the Government. 
 (Attorney General to the Solicitor of the Treas- 
 ury, Apr. 30, 1918, W. C. F. 191681-1 W. C. H., 
 Navy Dept. file 26254-1451: 15, citing Smith v. 
 Jackson, 246 U. S., 388, 241 Fed. Rep., 747, 
 instructing the Solicitor not to institute suit 
 against the officer making the payment although 
 requested so to do by the Comptroller.) 
 
 Of course the opinion of the Attorney General, 
 when rendered in a proper case — as must be the 
 presumption always from the fact that it is 
 rendered — must be controlling and conclusive, 
 establishing a rule for the guidance of other 
 officers of the Government, and must not be 
 treated as nugatory and ineffective. (25 Op. 
 Atty. Gen., 301; citing 20 Op. Atty. Gen., 648, 
 5 Op. Atty. Gen., 97, 6 Op. Atty. Gen., 334. 
 7 Op. Atty. Gen., 699, 9 Op. Atty. Gen., 37.) 
 
 If a question is presented to the Attorney 
 General in accordance with law — that is, if it 
 is submitted by the President or the head of a 
 department — his opinion thereon is final and 
 authoritative under the law, and should be so 
 treated by the accounting officers, even if the 
 question involves a payment to be made. 
 Congress in establishing the office of the Comp- 
 troller of the Treasury did not intend to shorten 
 the reach of sections 354 and 356, Revised Stat- 
 utes, as construed to give the opinions of the 
 Attorney General controlling authority. (25 
 Op. Atty. Gen., 301.) 
 
 For other cases, see below, "VI Jurisdic- 
 tion Attorney General and Comptroller of the 
 Treasury." 
 
 Are generally followed in practice. — It 
 is true the law does not say what effect shall be 
 given to the opinions of the Attorney General, 
 yet the general practice of the Government has 
 been to follow it, and this for the reasons stated 
 by Attorney General Cushing, viz, that an 
 officer going against it "would be subject to the 
 imputation of disregarding the law as officially 
 pronounced," and that, without "the guidance 
 of a single department of assumed special quali- 
 fications and official authority," uniformity and 
 
 stability in the application of the laws would 
 be hardily atUunable. (20 Op. Atty. Gen., 383, 
 citing 6 Op. Atty. Gen., 334.) 
 
 In rendering opinions to the President and 
 heads of departments, the action of the Attorney 
 General is quasi judicial. His opinions offi- 
 cially define the law in a multitude of cases, 
 where his decision is in practice final and con- 
 clusive. Accordingly, tne opinions of succes- 
 sive Attorneys General, possessed of greater or 
 less amount of legal acumen, acquirement, and 
 experience, have come to constitute a body of 
 legal precedents and exposition, having au- 
 thority the same in kind if not the same in de- 
 gree, with decisions of the courts of justice. 
 Although the act requiring this duty of the 
 Attorney General does not expressly declare 
 what effect shall be given to his opinion, yet the 
 general practice of the Government has been to 
 follow it; partly for the reason suggested, that 
 an officer going against it would be subject to 
 the imputation of disregarding the law as offi- 
 cially pronounced, and partly from the great 
 advantage and almost necessity of acting ac- 
 cording to uniform rules of law in the manage- 
 ment of the public business; a result only at- 
 tainable under the guidance of a single depart- 
 ment of assumed special qualifications and offi- 
 cial authority. (6 Op. Atty. Gen., 326, 334.) 
 
 The law does not declare what effect shall be 
 given to the advice and opinion of the Attorney 
 General, but it is beUeved that the practice of 
 the Government has invariably been to follow 
 it. This has been done from the great advan- 
 tage and almost absolute necessity of having 
 uniform rules of decision for all questions of law 
 in analogous cases, a result much more certain 
 under the guidance and decision of a single 
 department constituted for the very purpose of 
 advising upon all questions and with supposed 
 special qualifications for such a duty. In my 
 opinion this practice should be considered as 
 law. (5 Op. Atty. Gen., 97.) 
 
 Have been held not conclusive. — It must 
 be conceded that an opinion of the Attorney 
 General is not conclusive ; that is, it is not com- 
 pulsory on the President or even on the head of 
 a department. It is inconvenient, however, to 
 have a conflict of opinion between the Attorney 
 General and a head of department; and that 
 inconvenience is placed in the strongest light 
 by the facts of this case, where the affirmative 
 opinion of one Attorney General went disre- 
 garded by one Secretary, and a negative opinion 
 of another Attorney General, by the succeeding 
 Secretary. There can be no more flagrant ex- 
 ample of confusion of opinion and action. 
 (7 Op. Atty. Gen. 691, 699.) 
 
 Though opinions of the Attorney General 
 have technically no binding effect, it is sug- 
 gested that it is generally safer and better to 
 adopt them. Uniformity of decision in the 
 different departments on similar subjects is 
 necessary and can not be secured otherwise. 
 (9 Op. Atty. Gen., 33, 36.) 
 
 While the Attorneys General have never 
 claimed for their official opinions the force of 
 law, it has always been regarded as the proper 
 practice to follow their guidance. And Con- 
 gress, while never legislating on this point, 
 seems to contemplate that they are to be given 
 practical effect. (20 Op. Atty. Gen., 648.) 
 
 310 
 
Justice Department. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 356. 
 
 Vie-w that opinions are advisory only. — 
 The duty of the Attorney General is to advise, 
 not to decide. A thing is not to be considered 
 as done by the head of a department merely be- 
 cause the Attorney General has advised him to 
 do it. The heads of departments may disre- 
 gard his opinion if sure it is wrong. The Attor- 
 ney General aids them in forming a judgment 
 on questions of law; but still the judgment is 
 theirs, not his. They are not bound to see with 
 his eyes, but only to use the light which he fur- 
 nishes, in order to see the better with their own. 
 (9 Op. Atty. Gen., 33, 36; see also 10 Op. Atty. 
 Gen., 48.) 
 
 By long and unbroken construction and prac- 
 tice, it has been settled that the Attorney Gen- 
 eral acts, in performing this legal duty, simply 
 as the law adviser of the President and heads of 
 departments. He is bound, upon points of 
 law and facts stated by them, to give legal 
 opinions in aid of their judgment, in matters 
 for their decision. (11 Op. Atty. Gen., 4, 
 quoting opinion of Oct. 23, 1863.) 
 
 The opinion of the Attorney General is ad- 
 visory only. The Attorney General has no con- 
 trol over the action of the head of the depart- 
 ment to whom the opinion is addressed, nor 
 could he with propriety express any judgment 
 concerning the disposition of the matter to which 
 the opinion relates, that being something 
 wholly within the administrative sphere and 
 direction of such head of department. (17 Op. 
 Atty. Gen., 332.) 
 
 The Court of Claims, in holding that its find- 
 ings and opinions are binding upon heads of 
 departments in cases referred to it by the latter, 
 pursuant to act of Congress, remarked that to 
 hold otherwise, "would be construing the act as 
 requiring a useless procedure; and that if it be 
 contended that the report of the court is only 
 ad\-i3ory, then the answer is that the Attorney- 
 General is the law officer of the Government 
 and under the Revised Statutes the head of any 
 Executive Department may require his opinion 
 on any questions of law arising in the adminis- 
 tration of his department. " The conclusion of 
 the court, as stated in the syllabus, was that 
 "the findings and decisions of the court are not 
 open to revision in the department. Legal 
 opinions for the guidance of the head of a de- 
 partment, not obligatory, are to be given by the 
 Attorney General, pursuant to Revised Stat- 
 utes, section 356, and not by the judiciary. " 
 (Berger^^ U. S., 36 Ct. Cls., 243, 247.) 
 
 In case of conflict, should be submitted 
 to President. — A Secretary undoubtedly is 
 entitled to have and to act upon his conscien- 
 tious opinion of a question, even after he has 
 taken the opinion of the Attorney General; but 
 it would seem that any such conflict of opinion 
 between the Secretary asking and the Attorney 
 General giving official advice should be re- 
 ferred at once to their common superior, the 
 President, in order that the particular question 
 of administration itself may receive the au- 
 thoritative decision of the executive Govern- 
 ment. (7 Op. Atty. Gen., 691, 699.) [In this 
 case the Attorney General remarked that its 
 history exhibits a spectacle of vacillation and 
 contradiction of opinion on the part of the Gov- 
 ernment which it is humiliating to contem- 
 plate.] 
 
 irnoflB.cial opinion. — An expression of opin- 
 ion by the Attorney General on a question 
 which it is not his official duty to answer would 
 have no more weight than the opinions of 
 any unofficial person. (20 Op. Atty. Gen., 
 383; 17 Op. Atty. Gen., 357; 20 Op. Atty. Gen., 
 667; 20 Op. Atty. Gen., 440; 2 Op. Atty. Gen., 
 531.) 
 
 Obiter dicta. — Remarks in an opinion of the 
 Attorney General which are merely obiter do 
 not have the force and effect of an official opin- 
 ion. (21 Op. Atty. Gen., 25.) 
 
 VI. Jurisdiction, Attorney General and 
 Comptroller of the Treasury. 
 
 (A) In general. 
 
 (B) Questions which should be asked comptroller. 
 
 (C) When Attorney General icill render opinion. 
 
 (D) Effect of Attorney General's opinion. 
 
 (E) Views of Comptroller of the Treasury as to 
 
 jurisdiction. 
 
 A. In general. 
 
 The Attorney General's office should not 
 be allowed to become a refuge for doubt- 
 ful claims from the more thorough and search- 
 ing investigations of the accounting officers 
 and the Court of Claims. The Attorney Gen- 
 eral has no machinery to ascertain and test the 
 trustworthiness of alleged facts. (11 Op. Attv. 
 Gen., 4.) 
 
 Opinions of Comptroller on questions of 
 law.— Prior to the act of JulvSl, 1894, section 8 
 (28 Stat., 208), the Comptroller of the Treasury 
 had no legal status as an adviser upon legal 
 questions. He was an accounting officer hold- 
 ing great power, but his function was to take 
 action, not to advise others how to act. (20 
 Op. Atty. Gen., 654.) 
 
 The act of July 31, 1894, makes it obligatory 
 upon the Comptroller of the Treasury to make 
 a decision upon any question involving a pay- 
 ment to be made by or under the head of any 
 executive department, and it contemplates 
 the construction by him of statutes. (21 Op. 
 Atty. Gen., 181.) 
 
 In form the Comptroller is asked for legal ad- 
 \dce; in fact, what is desired is information as 
 to his future action. Even prior to the act 
 of July 31, 1894, it was customary to ask his 
 opinion on questions of law and this custom 
 was a convenient and proper and even neces- 
 sary one, within certain limits. The custom 
 doubtless arose from the importance of knowing 
 beforehand, when expenses were to be incurred, 
 what the decision of the comptroller would be 
 afterwards when the question of legality came 
 up upon the settlement of the accounts. (20 
 Op. Atty. Gen., 654.) 
 
 Where the Comptroller gives advice upon 
 questions of law which are not anticipatory of 
 future decisions by himself, such adA-ice is, of 
 course, purely extraofficial. The advice thus 
 given is doubtless intrinsically most valuable, 
 but otherwise it differs in no way from advice 
 on the same subject by any outsider. (20 Op. 
 Atty. Gen., 654.) 
 
 The view that the opinions of theComptroller, 
 rendered to the head of a department upon 
 legal questions, are purely extraofficial and 
 
 311 
 
Sec. 356. 
 
 Pi. 2. REVISED STATUTES. 
 
 Justice Department. 
 
 rendered by courtesy only, is no longer tenable 
 in view of the act of July 31, 1894. section 8 (28 
 Stat., 208), which authorizes the Comptroller to 
 render an advance decision upon ' 'any question 
 involvini/ a payvi€7it." (22 Op. A(ty(icn., 581.) 
 Whetlier a Navy regulation Iuuh binding force 
 as law on the accountiug olliccrs of the Govern- 
 ment, is a question of law and not one of ac- 
 counting, and the Attorney-General will render 
 an opinion thereon upon request of the Secre- 
 tary of the Navy, although the Comptroller 
 claims his jurisdiction to be conclusive and 
 declines to concur in the submission to the 
 Attorney General. (30 Op. Atty. Gen., 376, 
 171 S. and A. Memo., 3611; file 26254-1451:11, 
 Apr.l3, 1915; 21 Comp.Dec, 554, 560.) 
 
 Attorney General's jurisdiction not cur- 
 tailed by powers given Comptroller. — ^Con- 
 gress intended to confine the power of the 
 Comptroller within a relatively narrow range 
 and did not mean to curtail the occasions for 
 the rendering of opinions by the Attorney Gen- 
 eral or to diminish their scope and weight. 
 The act of 1894 does not establish a rule which 
 is universal and without exception under all 
 circumstances. Congress did not by that en- 
 actment intend to shorten the reach of sections 
 354 and 356, Revised Statutes, as construed to 
 give the opinions of the Attorney General con- 
 trolling authority ; or to repeal pro tan to [for so 
 much] those sections. (25 Op. Atty. Gen., 301.) 
 "Shortly after the act of July 31, 1894, was 
 enacted, the question arose as to its effect upon 
 the Attorney General's jurisdiction under sec- 
 tion 356 of the Revised Statutes, and the rule 
 was established by the Attorney General that 
 he was not to render an opinion iipon questions 
 which might be referr3d to the Comptroller of 
 the Treasury except in cases of great impor- 
 tance, or where the Comptroller of the Treasury 
 concurred in the reference, but that in such 
 cases he was authorized to render an opinion. 
 In other words, that the jurisdiction of the At- 
 torney General was not restricted by the act of 
 1894, but that the occasions for the exercise of 
 such jurisdiction, in cases involving disburse- 
 ments, would be infrequent in view of the 
 latter act. The Comptroller of the Treasury 
 fully concurred in the ruling that the Attorney 
 General's jurisdiction continued under section 
 356 of the Revised Statutes even in cases 
 covered by the act of 1894, and encouraged the 
 Attorney General to exercise liis jurisdiction in 
 such cases by frequently suggesting to heads of 
 departments tliat they refer questions of law to 
 the Attorney General for opinion. * * * 
 The Comptroller of the Treasury has thus uni- 
 formly recognized the superior facilities of the 
 Department of Justice to decide important 
 questions of law, even where disbursements are 
 involved; while on the other hand the Attorney 
 General has repeatedly recognized the superior 
 qualifications of the Comptroller of the Treasury 
 to decide certain classes of questions which in- 
 volve the use of appropriations and technical 
 questions of accounting." (File 26254-1451:11, 
 Apr. 12, 1915.) 
 
 Question one of etiquette. — There is, of 
 course, in this matter a large element of pro- 
 priety and etiquette, which has led Attorneys 
 General to decline to pass upon many ques- 
 tions, however important in their essential and 
 
 abstract bearings, because payments are also 
 involved. (25 Op. Atty. Gen., 301.) 
 
 Reference to Comptroller not re- 
 qmred. — The law permits, but does not re- 
 quire the reference of any question involving 
 a payment to the Comptroller of the Treasury; 
 and it is thus suggested that, whatever the final 
 action of the auditor and Comptroller may be 
 upon the account, the reference of every ques- 
 tion to the Comptroller for decision is not de- 
 manded by the law simply because such a 
 question may ultimately reach the accounting 
 stage. (26 Op. Atty. Gen., 81.) 
 
 B. Qiiestions which should be asked the Comp- 
 troller. 
 
 Except in matters of great importance, 
 or where the question is a general one, 
 applicable to all the departments, the opin- 
 ion of the Attorney General should no longer 
 be asked upon questions which the Comptroller 
 of the Treasury was authorized to decide upon 
 request of the head of any department, by the 
 actofJuly31, 1894; they arequestionswhich the 
 Comptroller, by his greater experience is better 
 qualified to pass upon, and it is desirable to 
 avoid any possible conflict of precedents. An 
 opinion of the Comptroller of the Treasury 
 forms a complete protection. (21 Op. Atty, 
 Gen., 178; 21 Op. Atty. Gen., 181; 26 Op. 
 Atty. Gen., 81.) 
 
 Upon questions of the disbursement of 
 money and payment of claims, which have 
 been relegated by law to the Comptroller of the 
 Treasury, the Attorney General should not 
 render opinions, especially in view of the fact 
 that if the matter is doubtful it can be referred 
 to the Court of Claims for authoritative decision. 
 (21 Op. Atty. Gen., 530.) 
 
 Except in matters of great importance, the 
 Attorney General will not express an opinion 
 upon any question involving a payment to be 
 made by or under the head of an executive de- 
 partment. That duty under the law is imposed 
 upon the Comptroller of the Treasury, whose 
 opinion is binding and conclusive. (23 Op. 
 Atty. Gen., 1.) 
 
 The authority of the Comptroller is com- 
 plete to decide a question involving a payment 
 to be made from the Treasury, so as to govern 
 the auditing officers and himself in passing 
 upon accounts. Accordingly, in various in- 
 stances the Attorneys General have declined to 
 give an opinion upon a question of this nature. 
 (25 Op. Atty. Gen., 301; citing 21 Op. Atty. 
 Gen., 178, 530; 22 Op. Atty. Gen., 581; 23 Op. 
 Atty. Gen., 468; 24 Op. Atty. Gen., 553. See 
 also 26 Op. Ally. Gen., 609.) 
 
 To which of two appropriations certain 
 expenses should be charged is a question 
 which may be asked of the Comptroller of the 
 Treasury. It belongs to a class of questions 
 which require for their decision a superior 
 knowledge of our appropriation acts and the 
 course of decisions thereunder. They are 
 questions which the Comptroller, by his great 
 experience, is better qualified to pass upon, and 
 it is desirable to avoid any possible conflict of 
 precedents. Therefore it seems inadvisable for 
 the Attorney General to attempt to pass upon 
 these inquiries. (21 Op. Atty. Gen., 405. 
 
 312 
 
Justice Department. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 356. 
 
 [Later the Attorney General rendered an opin- 
 ion on this question, it appearing that it did not 
 belong to the Comptroller of the Treasiuy. 
 Question concerned appropriation for public 
 printing. (21 Op. Atty. Gen., 423.)] 
 
 Specific questions which Attorney Gen- 
 eral has declined to answer. — \Miether cer- 
 tain expenses of Department of Agriculture are 
 payable from a certain appropriation for that 
 department. (21 Op. Atty. Gen., 221.) 
 
 Use of appropriation by Secretary of War for 
 "transportation of the Army and its supplies." 
 (22 Op. Atty. Gen., 665.) 
 
 \^Tiether expense of preparing certain blank 
 forms and furnishing them to collectors can be 
 paid out of appropriation for defraying the ex- 
 penses of collecting the revenue from customs. 
 (25 0p.Atty. Gen.,50.) 
 
 Allowance of extra compensation, in lieu of 
 annual leave, to certain former employees of 
 Census Office; which question, in its ultimate 
 effect, relates solely to payments out of the 
 Treasury. (24 Op. Atty. Gen., 85.) 
 
 WTiether a retired officer advanced in rank 
 and pay by the Executive, may be paid at the 
 advanced rate before the Senate has consented 
 to the advancement; which question had al- 
 ready been decided by the Comptroller of the 
 Treasury. (25 Op. Atty. Gen. ,185.) 
 
 Questions of disbursement of money or pay- 
 ment of claims. (22 Op. Atty. Gen., 581.) 
 
 Question involved in and arising out of a 
 claim for payment of money which is pending 
 before the Treasury Department. (23 Op. 
 Atty. Gen., 2.) 
 
 Claim for payment of a sum of money by the 
 War Department, as compensation for the can- 
 cellation of a contract. (23 Op. Atty. Gen., 86.) 
 
 Payment for rent of a letter box in a post office 
 for use of an Army officer; where comptroller 
 decided that the rent could not be paid in 
 advance, and the Postmaster General decided 
 that such boxes can not be rented to an officer 
 of the Government unless payment is made 
 before they are used. The Comptroller has 
 passed upon the precise question submitted; 
 he does not request any review of that decision ; 
 and the question is not one of sufficient im- 
 portance to bring it within the class of cases 
 which, while concernuig disbursements of 
 money, nevertheless by reason of their great 
 importance or general character have been held 
 to warrant an expression of opinion by the 
 Attorney General. (25 Op. Atty. Gen., 614; 
 25 Op. Atty. Gen., 185. But see below "Where 
 Comptroller does not join in request.") 
 
 WTiether, under the annual appropriation for 
 the care of patients in a designated hospital, 
 the Surgeon General, United States Army, 
 may contract with the institution to pay a 
 stipulated sum per month for keeping in a state 
 of preparedness for a specified number of pa- 
 tients; there not being in every month an aver- 
 age of that number of patients in the hospital, 
 but where the monthly average per year equals 
 or exceeds that number. The Attorney Gen- 
 eral deems it inexpedient to give an opinion 
 upon this question, which is clearly proper for 
 the Comptroller to decide. (26 Op. Atty. Gen., 
 431.) 
 
 Authority to refund duties and appropriation 
 to which chargeable; especially where such 
 
 questions have already been decided by the 
 Comptroller of the Treasury. (23 Op. Atty. 
 Gen., 468; affirmed 23 Op. Atty. Gen., 586; 
 24 Op. Atty. Gen., 553; cited 25 Op. Atty. Gen., 
 50.) 
 
 Manner of drawing funds from the Treasury, 
 and the administrative examination of accounts 
 of officers disbursing them. (22 Op. Atty. Gen., 
 414.) 
 
 Questions which involve the payment of 
 money by the Treasurv Department. (23 
 Op. Atty. Gen., 431.) 
 
 Question involving the pay to which an 
 officer of the Navy is entitled under certain 
 conditions, where this question has been de- 
 cided by the Comptroller, who does not concur 
 in its reference to the Attorney General, and the 
 question is not of sufficient importance to 
 justify a departiu-e from the general rule. 
 (28 Op. Atty. Gen., 129.) 
 
 C. When Attorney General will render an opinion. 
 
 Questions of general and great impor- 
 tance, where Comptroller concurs in re- 
 quest. — \Mien the question is of general and 
 great importance, and especially when the 
 Comptroller, in advance of decision by himself, 
 requests or suggests that the matter be referred 
 to the Attorney General, and states that the 
 opinion of the Attorney General will be fol- 
 lowed by him, the question may properly be an- 
 swered by the Attorney General, although a 
 disbursement may be involved. (25 Op. Atty. 
 Gen., 301, citing 21 Op. Atty. Gen., 181, 224, 
 402.) 
 
 If the Attorney General considers the question 
 presented one of great importance in other direc- 
 tions than disbursements, and especially when 
 the Comptroller suggests an examination of the 
 matter by him, an opinion on his part will be 
 proper and the decision final and authoritative. 
 (25 Op. Atty. Gen., 601.) 
 
 Generally speaicing, the decision of the Comp- 
 troller of the Treasury is conclusive in cases in- 
 volving the application of an appropriation and 
 the expenditure of public moneys. However, 
 when the disbursement is a question of general 
 and great importance, and especially when the 
 comptroller, in advance of a decision by him- 
 self, requests that the matter be refeiTed to the 
 Attorney General for opinion, and states that he 
 will be gtiided by such opinion, the question 
 may properly be answered by the Attorney 
 General. (26 Op. Atty. Gen., 609.) 
 
 WTiere the Comptroller of the Treasury states 
 that the opinion of the Attorney General will be 
 followed by him, the Attorney General will 
 comply with the request of the head of a depart- 
 ment for his opinion in the premises, the qties- 
 tion being one of importance, and the Comp- 
 troller thus joining in asking that it be answered. 
 (21 Op. Atty. Gen., 224. But see 21 Op. Atty. 
 Gen., 251, and 21 Op. Atty. Gen., 320, where 
 opinions upon similar questions were rendered, 
 although it did not appear that the Comptroller 
 joined in the reference.) 
 
 A question which was referred to the Comp- 
 troller of the Treasurj^ and at his request re- 
 ferred to the Attorney General, was answered by 
 the latter because it was an important one. (21 
 Op. Atty. Gen., 402.) 
 
 313 
 
Sec. 356. 
 
 Pt. 2. REVISED STATUTES. 
 
 Justice Department. 
 
 With reference to the question of pay of cer- 
 tain Navy oflicers on promotion, which was 
 pending before the Comptroller of the Treasury, 
 the Secretary of the Treasury reqtiested the 
 oj)inion of the Attorney General upon certain 
 questions proposed by the Comptroller of the 
 Treasury, and transmitted with the Secretary's 
 note. An opinion was rendered upon such 
 questions for the guidance of the Comptroller. 
 (2;U)p. Atty. Gen..30.) 
 
 With reference to the question whether the 
 accounting officers of the Treasury may legally 
 allow claims for transportation upon requests 
 fraudulently issued by an officer of the Army, 
 which question was submitted to the Attorney 
 General by indorsement of the Secretary of the 
 Treasury on a letter of the Comptroller of the 
 Treastiry, the Attorney General rendered an 
 opinionto the Secretary. (23 Op. Atty. Gen., 
 161.) 
 
 The Secretary of War, in accordance with the 
 sxiggestion of the Comptroller of the Treasury, 
 reqtiested and received an opinion of the Attor- 
 ney General as to use of an appropriation for in- 
 stallation of range and position finders in Porto 
 Rico. (23 Op. Atty. Gen., 390.) 
 
 Concerning the pay of retired officers of the 
 Army, the Attorney General rendered an opin- 
 ion to the Secretary of War, remarking: "The 
 Comptroller of the Treasury requests or concurs 
 in the reference of the question to me, and it is 
 proper, therefore, that I should respond." (25 
 Op. Atty. Gen., 299.) 
 
 The Secretary of the Navy, with the concur- 
 rence of the Comptroller of the Treasury, re- 
 qxiested an opinion which was rendered by the 
 Attorney General, concerning the pay of a cer- 
 tain retired mate in the Navy. (26 Op. Atty. 
 Gen., 599; file 3031-34.) 
 
 The Attorney General refrains from rendering 
 an opinion upon a qxiestion submitted to him by 
 the Secretary of the Treasury, for the reason 
 that the question can be asked of the Comptrol- 
 ler of the Treasury. (21 Op. Atty. Gen., 188.) 
 Opinion rendered later by the Attorney General 
 upon same question, the Comptroller joining in 
 the request and the question being of impor- 
 tance. (21 Op. Atty. Gen., 224.) 
 
 Where Comptroller does not join in re- 
 quest. — Unless the Comptroller joins in the 
 request, the Attorney General has hesitated to 
 express an opinion even as to questions of great 
 importance, or of general application to all 
 departments. (26 Op. Atty. Gen., 81, citing 21 
 Op. Atty. Gen., 181.) However, where the 
 question is general in its bearings, and of great 
 importance, the Attorney General may prop- 
 erly express an opinion notwithstanding the 
 statutory authority of the Comptroller of the 
 Treasury, and notwithstamling the fact that the 
 question comes to him in the first instance and 
 not after reference to the Comptroller and by his 
 request. (26 Op. Atty. Gen., 81, re use of ap- 
 propriation under the Secretary of War for the 
 erection of marine barracks at the Canal Zone. 
 See also 24 Op. Atty. Gen., 699; 25 Op. Atty. 
 Gen., 127.) 
 
 Upon request of the Secretary of the Navy 
 the Attorney General re-viewed several deci- 
 sions rendered by the Comptroller of the Treas- 
 ury concerning the leave pay of officers of the 
 construction corps, professors of mathematics, 
 
 and civil engineers. No reference was made in 
 the opinion to the question of jurisdiction. 
 (27 Op. Atty. Gen. , 261 . ) [Before referring this 
 question to the Attorney General, the Navy 
 Department suggested to the Comptroller that 
 the matter be submitted to the Attorney Gen- 
 eral for opinion, in order thereby to obviate 
 delay and expense, both to the Government and 
 the officers concerned, that would result from 
 the placing of the matter before the Court of 
 Claims for decision. In response the Comp- 
 troller stated that he preferred that the Navy 
 Department use its own judgment relative to 
 the submission of the legal question involved 
 to the Attorney General, and that the Attorney 
 General determine, without suggestion from 
 him, whether he would entertain such submis- 
 sion; but added that, if the question were sub- 
 mitted and the Attorney General rendered an 
 opinion thereon, such opinion would be treated 
 with that respect due to the opinion of the chief 
 legal adviser of the Government. This state- 
 ment of the Comptroller's attitude was commu- 
 nicated to the Attorney General in the Navy 
 Department's request for opinion. (File 
 262,54-1.55:e, Dec. 15, 1908.) The Attorney 
 General, in the opinion cited, dissented from 
 the decision of the Comptroller of the Treasury 
 upon the questions presented, and concurred in 
 the views of the Navy Department thereon. 
 The Comptroller of the Treasury thereupon re- 
 opened and reversed his former decision, and 
 followed the opinion of the Attorney General. 
 (Comp. Dec, Apr. 16, 1909, 98 S. & A. Memo., 
 1036.)] 
 
 Upon request of the Secretary of the Navy 
 the Attorney General reviewed and reversed 
 several decisions of the Comptroller of the 
 Treasury concerning the legality of a Navy 
 regulation, although the Comptroller declined 
 to concur in a reference of the matter to the 
 Attorney General, holding that his decisions 
 were final and conclusive upon the executive 
 branch of the Government. (Op. Atty. Gen., 
 May 19, 1915, 171 S. & A. Memo., 3611; 21 
 Comp. Dec, 554, 357, 245; file 26254-1451:11.) 
 
 Upon request of the Secretary of the Navy 
 the Attorney General reviewed the decision of 
 the Comptroller of the Treasury that the des- 
 ignation of a Navy mail clerk was not valid, 
 and held that said decision of the Comptroller 
 was extraofficial and that the mail clerk in 
 question had been validly designated as such. 
 (31 Op. Atty. Gen., 320. "See also 32 Op. Atty. 
 Gen., 427 reviewing and dissenting from 26 
 Comp. Dec, 3,36.) 
 
 The Comptroller of the Treasury held that the 
 cost of transporting certain destitute seamen to 
 this country was a proper charge against the 
 Government (14 Comp. Dec, 867), and sug- 
 gested that the Attorney General's opinion be 
 requested as to whether the owners of the vessel 
 to wliich such seamen belonged should refund 
 to the Government the amount so expended. 
 This latter question was referred to the Attorney- 
 General with request for his opinion upon that 
 specific question. However, the Attorney-Gen- 
 eral, in his opinion, considered the whole sub- 
 ject, and held, among other things, that "the 
 cost of transportation furnished by the Govern- 
 ment is a proper charge against the appropria- 
 
 314 
 
Justice Department. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 356. 
 
 tion for ' relief and protection of American Bea- 
 men in foreign countries,' " wliich question had 
 already been decided by the Comptroller. (26 
 Op. Atty. Gen. , 631. In this connection see 29 
 Op. Atty. Gen., 54.) 
 
 In the case of a retired officer of the Navy, the 
 Comptroller of the Treasury held that under the 
 the law and facts of the case he was entitled to 
 the rank and retii-ed pay of the next higher 
 grade. (14 Comp. Dec, 167.) In the case of 
 another retired officer, invohing precisely the 
 same question, the Na^^ Department requested 
 an opinion of the Attorney General, who held 
 that the officer in question was not entitled to 
 the rank and retii-ed pay of the next higher 
 grade, expressly dissenting from the Comp- 
 troller's decision above cited and concurring in 
 the opinion of the Navy Department. [This 
 question was referred to the Attorney General 
 by the Secretary of the Navy without the sug- 
 gestion or concmrence of the Comptroller.] (27 
 Op. Atty. Gen., 221.) The Comptroller of the 
 Treasury reopened and reversed his former deci- 
 sion and followed the opinion of the Attorney 
 General. (15 Comp. Dec, 584.) 
 
 Where the Comptroller has passed upon the 
 precise question submitted ancf does not request 
 any review of his decision, the Attorney General 
 will not render an opinion where the matter, in 
 his judgment, is not one of sufficient impor- 
 tance to bring it witMn the class of cases which, 
 while concerning disbm-sements of money, nev- 
 ertheless, by reason of their great importance or 
 general character, have been held to wai-rant an 
 expression of opinion by the Attorney General. 
 (25 Op. Atty, Gen., 614.) In such a case, be- 
 fore rendering an opinion, the Attorney General 
 requires a presentation of the reasons of the head 
 of the department for ref en'ing the matter to him 
 and not accepting the opinion of the Comp- 
 troller. (26 Op. Atty. Gen., 609.) 
 
 In no case, so far as I am advised, has the 
 Attorney General undertaken to review a mat- 
 ter which has been before the Comptroller with- 
 out being advised that it would be entirely 
 agreeable to the latter to do so. (28 Op. Atty. 
 Gen., 129. But see cases noted above.) 
 
 Where the Comptroller of the Treasury has 
 decided the question (pay of a retired officer of 
 the Army, advanced in rank by the Executive), 
 his decision is conclusive, and the question will 
 not be answered by the Attorney General. It 
 is true that an exception has been noted in the 
 opinions of the Attorneys General, where a ques- 
 tion is of great importance and general applica- 
 tion and a confUct of precedents might ensue, 
 and especially where the Comptroller joins in 
 the request and states that he will be guided by 
 the opinion of the Attorney General. But here 
 the Comptroller has already acted and has ren- 
 dered his decision upon the reference to him of 
 the real question involved in its practical 
 aspect, and this decision under the law must 
 govern him in determining the matter when- 
 ever it is presented to him in his function of 
 passing upon accounts, unless, indeed, he him- 
 self should see fit to reconsider and revise or 
 reverse his ruling. (25 Op. Atty. Gen., 185. 
 But see cases noted above.) 
 
 Questions which have been held of gen- 
 eral and great importance. — Upon a ques- 
 tion relating to the purchase of envelopes by 
 
 54641°— 22 21 
 
 executive departments in cases of public 
 exigency, it appeared from papers transmitted 
 to the Attorney General that the Comptroller 
 of the Treasury stated: "As the question in 
 the form presented is a general one, appUcable 
 to all the departments, it is respectfully sug- 
 gested that it would be expedient to have the 
 matter determined by an opinion from the 
 Attorney General. " Accordingly the Attorney 
 General rendered an opinion upon the ques- 
 tion, sajdng: "This case falls within the excep- 
 tion stated in my previous opinion (21 Op. 
 Atty. Gen., 178) concerning matters of great 
 importance, and I therefore, without departing 
 from the precedent therein established, com- 
 ply with your request." (21 Op. Atty. Gen., 
 181.) 
 
 Availability of appropriation. — Respecting 
 the availability for census purposes of the 
 unexpended balance of a previous appropria- 
 tion, the Attorney General rendered an opinion 
 to the Secretary of the Interior, stating: "This 
 question might have been presented to the 
 Comptroller of the Treasmy, under the act of 
 July 31, 1894, section 8. * * * Upon the 
 passage of that act this department assumed 
 the position, which it has ever since main- 
 tained, that except in matters of great im- 
 portance, questions of the character referred to 
 therein should be submitted to the Comptroller, 
 whose opinion is binding and conclusive and 
 affords complete protection. (21 Op. Atty. 
 Gen., 178, 188, 530; 22 Op. Atty. Gen., 413, 
 581; 23 Op. Atty. Gen., 1, 2, 86, 431, 468, 586; 
 24 Op. Atty. Gen., 85.) The present question, 
 however, is administrative in its nature and of 
 sufficient importance to come within the excep- 
 tion stated . Its gravity is more than commen- 
 surate with that of the question considered by 
 Mr. Olney (who fu'st announced the rule 
 referred to) in his opinion of May 23, 1895 (21 
 Op. AttJ^ Gen., 181), and wliich related to the 
 power of the several executive departments 
 to purchase envelopes in cases of public exi- 
 gency. Upon the availability of the balance 
 referred to by the proviso in the act of March 3, 
 1903, as the letter of the director indicates, 
 depends the execution of a great deal of census 
 work now in progress or contemplation, and 
 the retention or discharge of a considerable 
 portion of his present force." (24 Op. Atty. 
 Gen., 699.) 
 
 Fay of employees in Fhilippines. — Concerning 
 compensation on holidays of navy yard em- 
 ployees in the Philippine Islands, the Attorney 
 General rendered an opinion to the Secretary 
 of the Navy, stating: "This question might 
 have been submitted to the Comptroller of the 
 Treasury', but in view of the importance of 
 determining whether or not such statutes apply 
 in the Philippine Islands, I shaU endeavor to 
 answer it." (25 Op. Atty. Gen., 127.) 
 
 Validity of Navy regulation. — In rendering 
 an opinion requested by the Secretary of the 
 Treasury at tlie suggestion of the Comptroller, 
 concerning refund of bounty required of 
 enlisted men of the Navy discharged within a 
 year after enlistment, for disabiUty noc incurred 
 in the Une of duty, the Attorney General said: 
 "I should hesitate to render you my opinion 
 upon this subject, in view of the well-estab- 
 lished rule holding the opinions of the Comp- 
 
 315 
 
Sec. 366. 
 
 Pt. 2. REVISED STATUTES. 
 
 Justice Department. 
 
 troller of tlie Treaaurj', upon a quoslion involv- 
 ing the payment of money by any executive 
 department of the Government to l)e final 
 and conclusive, were it not for tlie fact that 
 the present ca.ie is unusually important, since 
 it involves the validity of the regulations 
 issued by the head of an executive depart- 
 ment and therefore appears to fall ^vithin the 
 exception to tliat rule recognized l)y the 
 Attorney General wlion he is duly asked for 
 his opinion before the Comptroller has passed 
 upon the question, and the Comptroller himself 
 joins in the request." (25 Op. Atty. CJen., 271; 
 BcealsoOp. Atty. Gen., May 19, 1915, 171 S. & A. 
 Memo., ;>611, reviewing and reversing decisions 
 of the Comptroller of the Treasury as to the val- 
 idity of a Isavy regulation, although the Comp- 
 troller declined to concur with the Secretary of 
 the Navy in the submission of the question to 
 the Attorney General.) 
 
 Use of appro priution for construction of 
 marine barracks at the Canal Zone is a question 
 of general and great importance, upon which 
 the Attorney General will render an opinion 
 notwitlistanding the fact that the question 
 comes to him in the first instance and not after 
 reference to the comptroller and by his re- 
 quest. (26 Op. Atty. Gen., 81.) 
 
 Where opirLion is requested by the Presi- 
 dent. — Upon instructions to him by the Presi- 
 dent, the Attorney General reviewed two deci- 
 sions rendered by the Comptroller of the Treas- 
 iiry concerning expenditures from appropria- 
 tions for the Agricultural Department, and 
 submitted his opinion to the President upon 
 the questions of law discussed therein. (26 Op. 
 Atty. Gen., 269.) 
 
 Upon reference to him by the President, the 
 Attorney General rendered an opinion upon a 
 question raised by a decision of the Comptroller 
 of the Treasury as to authority of the Secretary 
 of the Treasury to purchase land from the State 
 of Texas for a life-saving station and to pay the 
 consideration fixed therefor (29 Op. Atty. 
 Gen., 48); and later, in the same case, the 
 Attorney General addressed a supplementary 
 opinion to the President as to the appropriation 
 available for payment for the land so acquired. 
 (29 Op. Atty. Gen., 51.) 
 
 Opinion rendered to the President concern- 
 ing his authority to allot funds appropriated by 
 Congress for the purpose of equipping and 
 building schoolhouses in the island of Porto 
 Rico. (23 Op. Atty. Gen., 329.) 
 
 That Commissioner of Labor could be ap- 
 pointed a member of the immigration comnus- 
 sion and receive compensation for his services 
 on that commission, in addition to the salary 
 attached to his office as Commissioner of Labor. 
 (26 Op. Atty. Gen., 247.) 
 
 Authority to grant leave of absence with pay 
 to members of the Grand Army of the Republic 
 in Government service who attend annual en- 
 campment of that order. (26 Op. Atty. Gen., 
 336.) 
 
 That a retired officer of the Revenue-Cutter 
 Service could be employed to superintend the 
 construction of life-sa\dng apparatus for such 
 period as his services might be required, at a 
 rate of compensation to be fixed by the Secre- 
 tary of the Treasury. (26 Op. Atty. Gen., 460.) 
 
 Use of appropriations to pay contractors for 
 
 material to be used in constructing a public 
 building. (26 Op. Atty. Gen., 572.) 
 
 That the Secretary of the Navy has no power, 
 after exhausting an appropriation for the erec- 
 tion of a dry dock, to use funds from other 
 appropriations not strictly applicable to that 
 work in order to meet the payments to be 
 made on the contract until a deficiency appro- 
 priation should be made. (28 Op. Atty. Gen., 
 466.) 
 
 Specific questions answered by the At- 
 torney General without reference to 
 Comptroller's jurisdiction. — in the follow- 
 ing specific cases the Attorney General ren- 
 dered opinions without making any reference 
 to the question of jiu^isdiction: 
 
 Payment of damages. — That the Secretary of 
 War is authorized to pay $15,000, as recom- 
 mended by a commission and the Chief of En- 
 gineers, for raising the height of the dam at 
 Great Falls and for damages on account of the 
 flooding of land and other damages. (21 Op. 
 Atty. Gen., 223.) 
 
 Use of appropriation for reimbursement of 
 militia for stores taken in war with Spain. (22 
 Op. Atty. Gen., 372.) 
 
 Use of approi^riation by Secretary of War for 
 
 Eayment of compensation to parties after a 
 reach of contract by the Secretary. (22 Op. 
 Atty. Gen., 437.) 
 
 Payment of money to contractors for damages 
 sustained by delay. (23 Op. Atty. Gen., 106.) 
 
 Use of appropriations. — Concerning the use of 
 an apjiropriation for expenses of the Agricul- 
 tural Department. (21 Op. Attv. Gen., 321; 
 21 Op. Atty. Gen., 372; 22 Op. Atty. Gen., 470.) 
 
 Use of appropriations, and to what appropri- 
 ation certain expenses are chargeable. (21 Op. 
 Atty. Gen., 414.) 
 
 Construction of an appropriation; whether 
 language mandatory or directory. (22 Op. 
 Atty. Gen., 295.) 
 
 Expenditure of $3,000,000 appropriation for 
 emergencies arising in military administration 
 of Cuba. (22 Op. Atty. Gen., 301.) 
 
 Use of appropriation for rivers and harbors. 
 (22 Op. Atty. Gen., 489; 22 Op. Attv. Gen., 519; 
 25 Op. Atty. Gen., 145; 29 Op. Atty. Gen., 173.) 
 
 Use of an appropriation under the Secretary 
 of State and its availability for paying expenses 
 or compensation of counsel for the delegation to 
 the Pan-American conference. Question was, 
 first, as to legality of appointing counsel; and 
 second, as to question of pay. (23 Op. Atty. 
 Gen., 533.) 
 
 Ojiinion to Secretary of State which "relates 
 wholly to the legality of the expenditures 
 recommended" — that is, certain expenditures 
 out of an a])propriation made in connection with 
 the Panama Canal project. (25 Op. Atty. Gen., 
 54.) 
 
 Advised Secretary of War that he was au- 
 thorized to enter into a contract for the payment 
 of royalty on account of the construction of cer- 
 tain guns, carriages, etc., payable out of appro- 
 priations "for the armament of fortifications 
 and for other purposes;" notwithstanding the 
 fact that the fulfillment of such contract might 
 extend over a period of more than two years. 
 (25 Op. Atty. Glen., 105.) 
 
 That appropriation for purchase of land may 
 properly be expended for the purchase of a 
 
 316 
 
Justice Department. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 356. 
 
 lease in perpetuity to said land. (26 Op. Atty. 
 Gen., 12.) 
 
 That Secretary of the Treasury is authorized 
 to acquire a certain site and erect a public 
 building thereon, at total cost of §125,000; that 
 the Secretary is not limited as to the cost of the 
 Bite, but a sufficient amount should be reserved 
 to properly erect the building. (26 Op. Atty. 
 Gen., 20.) 
 
 . Opinion to Secretary of the Navy in answer to 
 following questions: (1) ^\^lether, upon the 
 facts presented, the Navy Department is au- 
 thorized to expend any portion of the moneys 
 appropriated by the acts in question for the 
 construction or purchase of a submarine boat 
 or boats of the Lake type; (2) whether under 
 the facts as stated the Secretary of the Navy is 
 authorized to expend any portion of the appro- 
 priations referred to, for the purchase of sub- 
 surface boats of the type subjected to trial, as 
 above set forth. (26 Op. Atty. Gen., 321.) 
 
 Appropriation available for payment of ex- 
 pense of maintenance and treatment of an in- 
 mate of the National Soldiers' Home who is 
 transferred to the Government Hospital for the 
 Insane. (26 Op. Atty. Gen., 512.) 
 
 That Secretary of the Navy has authority to 
 acquire and pay for the right to manufacture 
 and install patented forms of turbine machinery 
 on board a ship under construction, and this 
 authority extends to the license fee, royalties, 
 and preparation of drawings. (27 Op. Atty. 
 Gen., 173.) 
 
 Use of appropriation to defray expenses of a 
 board under the Secretary of War. (27 Op. 
 Atty. Gen., 459.) 
 
 Use of Naval Hospital fund to supplement 
 appropriation for construction of hospital at 
 Norfolk, A'a. (27 Op. A,tty. Gen., 30.) 
 
 That moneys appropriated for the mainte- 
 nance of the Bureau of Mines may be used for 
 erection of certain temporary structures. (28 
 Op. Atty. Gen., 413.) 
 
 Use of appropriation for construction of bat- 
 tleship, where not sufficient for completion of 
 the vessel. (28 Op. Atty. Gen., 477.) 
 
 Use of naval appropriation for purchases 
 from combinations or monopolies. (29 Op. 
 Atty. Gen., 14, 35, 44.) 
 
 That in absence of statutory prohibition, 
 partial payments may be made on account of 
 work done in construction of vessels for the 
 Navy. (29 Op. Atty. Gen., 46.) 
 
 Use of appropriation under Secretary of War 
 for purchase and partial construction of canal 
 and locks, where not sufficient for total cost. 
 (29 Op. Atty. Gen., 236.) 
 
 Use of appropriation by the Secretary of the 
 Treasury for rental of building in District of 
 Columbia and construction of vault. (27 Op. 
 Atty. Gen., 270.) 
 
 Pay of Army, Navy, etc. — Stoppage of pay 
 against the account of soldier in Army. (21 Op. 
 Atty. Gen., 323.) 
 
 That the Secretary of the Navy is authorized 
 to employ a retired officer to supervise the com- 
 pletion of certain tables of planets, at a com- 
 pensation of $2,500 per annum. (21 Op. Atty. 
 Gen.. 507.) 
 
 Concerning extra pay of Army officers. (22 
 Op. Atty. Gen., 95.) 
 
 That a proposed regulation of the State De- 
 partment, A\dth reference to the compensation 
 of consular agents, being consistent %vith law, 
 may be carried into effect. (22 Op. Attv. Gen. , 
 16.30 
 
 Extra compensation of a United States judge 
 appointed as a commissioner under a conven- 
 tion with Great Britain. (22 Op. Atty. Gen., 
 184.) 
 
 Increased pav and allowances of Army offi- 
 cers. (22 Op. Atty. Gen., 2.58.) 
 
 Compensation of per diem employees at 
 Washington navy yard for half day when yard 
 was closed on account of ceremonies attending 
 the interment of the bodies of soldiers and 
 sailors whose lives were lost in the war with 
 Spain. (22 Op. Atty. Gen.. 472.) 
 
 Date from which officer of Navy" is entitled 
 to rank and pav of higher grade on promotion. 
 (22 Op. Atty. Gen., 657.) 
 
 Rank and pay of retired officers of the Marine 
 Corps having Civil War service. (24 Op. Atty. 
 Gen., 709.) 
 
 Pay of a retired officer of the Navy. "He 
 now claims that he is entitled to the additional 
 pay pro\'ided in the proAdsion before quoted, 
 and your question is in substance whether he 
 is so entitled. * * * I am, therefore, of 
 opinion * * * that he is entitled to the 
 increased pay provided for in said act." (26 
 Op. Atty. Gen., 57.) 
 
 That the salary of a clerk in a pension agency 
 might legally be paid, and need not be with- 
 held by the Secretary of the Interior because 
 of his indebtedness to the United States; and 
 that section 1766, Revised Statutes, is not appli- 
 cable to such clerk. (26 Op. Atty. Gen., 77.) 
 
 That the salary of a naval officer appointed 
 during a recess of the Senate can not be paid 
 until confirmed by the Senate, where the va- 
 cancy existed while the Senate was in session. 
 (26 Op. Atty. Gen.. 2.34.) 
 
 Rank and pay of retired officers of the Navy 
 having Civil War service. (27 Op. Attv. Gen., 
 221.) 
 
 Compensation of certain officers employed 
 under the Department of Agriculture. (27 
 Op. Atty. Gen., 358.) 
 
 Payment of compensation and expenses of 
 board on life-saving appliances. (27 Op. 
 Atty. Gen., 406.) 
 
 Compensation and expenses of a committee 
 under the Secretary of War. (27 Op. Atty. 
 Gen., 432, 437.) 
 
 Leave of absence of per diem employees 
 under the Secretary of War. (27 Op. Atty. 
 Gen., 613.) 
 
 Payment of compensation to expert witness 
 employed by the Government in cases arising 
 under the food and drugs act. (28 Op. Atty. 
 Gen., 75.) 
 
 Leave of absence to certain employees under 
 the War Department. (28 Op. Attv. Gen., 
 339.) 
 
 Pay of chief of bureau, Navy Department, 
 after resignation or removal from office. (28 
 Op. Atty. Gen., 429.) 
 
 Rank and pay of naval officers serving as 
 bureau chiefs. (28 Op. Atty. Gen., 531.) 
 
 Payment of miscellaneous claims. — Claim for 
 arrears in pension. (21 Op. Atty. Gen., 408; 
 21 Op. Atty. Gen., 453.) 
 
 317 
 
Sec. 356. 
 
 Pt. ,i. REVISED STATUTES. 
 
 Justice Department. 
 
 That unexpondod balance of an a])propria- 
 tion should be used to reimburse a claimant 
 against the United States. (21 Op. Atty. Gen., 
 523.) 
 
 Claims of officers and men in the Navy for 
 payment of prize money. (22 Op. Atty. Gen., 
 17i.) 
 
 Leirality of bills submitted to the Secretary 
 of ^\'ar for State tolls on property of the United 
 States passing to or over the wharves at San 
 Francisco. (23 Op. Atty. Gen., 299.) 
 
 Whether Navy Department may rightfully 
 withhold its apjiroval of vouchers providing for 
 
 1)ayinent of a bill j)resented to that department 
 )y the Carnegie Steel Co. until decision of a 
 suit pending in the Court of Claims. (23 Op. 
 Attv. Gen., 422; affirmed 23 Op. Atty. Gen., 
 495!) 
 
 Authority of Secretary of the Treasury to 
 pay claim of a municipal corporation for reim- 
 bursement on account of burial expenses of a 
 pensioner from accrued pension. (23 Op. Atty. 
 Gen.. 428.) 
 
 \'alidity of claim made for rent of a building 
 occupied as a post office. (23 Op. Atty. Gen., 
 571.) 
 
 Authority of Secretary of the Treasury to 
 allow claim for compensation as informer. 
 Held that the Treasury Department is author- 
 ized to award compensation in the case sub- 
 mitted. (24 Op. Atty. Gen., 61.) 
 
 Use of an appropriation for payment of attor- 
 neys' claims for fees on account of services 
 rendered to Indians. (24 Op. Atty. Gen., 624; 
 25 Op. Atty. Gen., 308; 25 Op. Atty. Gen., 320.) 
 
 Distribution of fund appropriated for the 
 payment of the so-called "loyal Creek claims" 
 in cases of deceased claimants. (25 Op. Atty. 
 Gen., 163.) 
 
 Payment of claim of Government employee 
 for compensation on account of disability sus- 
 tained in the course of his employment. (27 
 Op. Atty. Gen., 346.) 
 
 Settlement of claim on Secretary of the 
 Treasury, made by an officer of the Government 
 for an award for detecting fraudulent weighing 
 of sugars. (28 Op. Atty. Gen., 329.) 
 
 Use of appropriations for payment of claims 
 of a wrecking company in connection with the 
 removal of an obstruction to navigation. (28 
 Op. Atty. Gen., 626, 633.) 
 
 ^liether the claim of a wrecking company 
 against the Government for services in removing 
 an obstruction to navigation, which claim was 
 pending before the War Department, could be 
 paid. Answered in the affirmative, but held 
 that interest could not be paid. (29 Op. Atty. 
 Gen., 277.) 
 
 Payment of claim for compensation on 
 account of a fatal accident to a laborer employed 
 by the United States. (29 Op. Atty. Gen., 
 415.) 
 
 Refund of duties, taxes, etc. — Authority of 
 Secretary of the Treasury to refund duties out of 
 an appropriation for that purpose. (23 (Jp. Attv. 
 Gen.. 442; 21 Op. Atty. Gen., 454. Claims for 
 refund of taxes. 26 Op. Atty. Gen., 472.) 
 
 Payment of claims for refund of moneys col- 
 lecteli by the United States for taxes. Ques- 
 tion submitted by the Secretary of the Treasury, 
 "is there any legal objection to now paying that 
 part of the claim of * * * which comes 
 
 under the decision of the Supreme Court in the 
 * * * case, allowing the balance to remain 
 in the Treasury pending the decision of the 
 court in the * * * case?" Answered in 
 the negative. (26 Op. Atty. Gen., 194.) 
 
 Miscellanpous . — -Making of final paj'ment to a 
 contractor by the Secretary of War under a cer- 
 tain contract. (22 Op. Atty. Gen., 465.) 
 
 Payment from the naval pension fund to 
 personal representatives of a deceased bene- 
 ficiary or to the Naval Home. (25 Op. Atty. 
 Gen., 85.) 
 
 Authority of Director of the Mint, with 
 aj)proval of the Secretary of the Treasury, to 
 purchase bullion for subsidiary coinage without 
 limitation. (25 Op. Atty. Gen., 170.) 
 
 (D) Effect of Attorney Generals opinion. 
 
 Binding on Comptroller. — Without touch- 
 ing upon the question whether a Comptroller of 
 the Treasury may delegate his authority, when 
 he waives his right to determine a matter in- 
 volving disbursements, within the scope of his 
 authority under the law and regulations, or 
 suggests a ruling by the Attorney General, 
 there is no doubt that the Attorney General's 
 opinion should not only be justly persuasive to 
 the accounting officers, but should be con- 
 trolling; and should be followed by them 
 unless contrary to some authoritative judicial 
 decision which puts the matter at rest. It is 
 always to be assumed that the Attorney General 
 would not overlook or ignore such a decision 
 in announcing his own conclusion. (25 Op. 
 Atty. Gen., 301.) 
 
 Of course the opinion of the Attorney General 
 when rendered in a proper case — as must be the 
 presumption always from the fact that it is 
 rendered — ^^must be controlling and conclusi^=e, 
 establishing a rule for the guidance of other 
 officers of the Government, and must not be 
 treated as nugatory and ineffective. (25 Op. 
 Attv. Gen., 301, citing 20 Op. Atty. Gen., 648; 
 9 Op. Atty. Gen., 37, 7 Up. Atty. Gen., 699, 
 6 Op. Atty. Gen., 334, 5 Op. Atty. Gen., 97.) 
 
 Where the question is general and important 
 in other directions than disbursements, and is 
 presented to the Attorney General in accord- 
 ance Avith law — that is, if it is submitted by the 
 President or the head of a department; if it 
 is a question of law and actually arises in the 
 administration of a department; and the At- 
 torney General conceives that it is proper for 
 him to deliver his opinion, it is final and 
 authoritative under the law, and should be so 
 treated by the accounting officers, even if the 
 question involves a payment to be made. 
 (25 Op. Atty. Gen., 301.) 
 
 If the Attorney General considers the ques- 
 tion presented one of great importance in other 
 directions than disbursements, and especially 
 when the Comptroller suggests an examination 
 of the matter by him, an oi)inion on liis part 
 will be proper and the decision final and 
 authoritative. (25 Op. Atty. Gen., 601.) 
 
 W^here an opinion was rendered by the At- 
 torney General upon a question which was after- 
 wards considered and otherwise decided by the 
 Comptroller of the Treasury, it was held by the 
 Supreme Court that any doubt which the Au- 
 ditor might have had should have been sub- 
 
 318 
 
Justice Department. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 356. 
 
 ordinated to the ruling of the Attorney General; 
 affii-ming the decision of the lower court in 
 which there was quo Led with approval the At- 
 torney General's opinion of September 8, 1893, 
 to the Secretary of the Treasury (20 Op. Atty. 
 Gen. 659), digested above under "V. Weight of 
 Opinions" (Smiths. Jackson, 246 U. S., 388, 
 241 Fed. Rep., 747; C. M. O. 50, 1918, p. 20.) 
 
 (E) Views of Comptroller of the Treasury as to 
 jurisdiction. 
 
 Test is whether main question involved, 
 is one of payment. — The question was sub- 
 mitted to the Comptroller of the Treasury 
 whether the Interstate Commerce Commis- 
 sion is authorized to purchase furniture and 
 office equipment from dealers not parties to the 
 common supply contract. This question had 
 previously been passed upon by the Attorney 
 General in an opinion rendered to the President 
 under section 354, Revised Statutes. ('Op. Atty. 
 Gen., Feb. 27, 1913.) The Comptroller held that 
 the question was one for him to decide, under 
 the act of JulySl, 1894(28Stat., 208), saying: "I 
 have no discretion in the matter and must ren- 
 der a decision, and such decision as my con- 
 science dictates, notwithstanding this opinion 
 by the Attorney General." Upon the general 
 subject of jurisdiction in such cases, the Comp- 
 troller said: 
 
 "If there is sometimes conflict of jurisdiction 
 between the Attorney General and the Comp- 
 troller of the Treasury, it is by reason of the dif- 
 ferent constructions which are given these two 
 provisions of the statutes. I have never 1 irought 
 myself to the \iew that my jurisdiction de- 
 pended upon the magnitiide of the question 
 submitted. I have always thought that the 
 primary question to be determined was, 
 whether the main question involved the pay- 
 ment of money out of an appropriation, and if 
 so the jurisdiction was with the Comptroller; if, 
 on the contrary, the main question was the 
 authority of the President, the head of an 
 executive department, or other Government 
 official to perform a certain act regardless of 
 the use of an appropriation, then the jurisdic- 
 tion is with the Attorney General. 
 
 "If the President or the Secretary of the 
 Treasury had in this case sulimitted the ques- 
 tion whether he, the Secretary, was authorized 
 to schedule and contract for, under the act of 
 June 17, 1910 (36 Stat., 468, 531), such articles 
 as desks, tables, or sectional filing cases to be 
 used by the Interstate Commerce Commission, 
 and the Attorney General upon such request 
 had rendered the opinion he has rendered, I 
 have no doubt that the Secretary of the Treas- 
 ury would have acquiesced in such opinion, 
 and not scheduled and contracted for such 
 articles. Under such circumstances, I would 
 have felt myself morally boxind to follow the 
 opinion of the Attorney General, notwithstand- 
 ing my own personal views as to its correctness. 
 But the Secretary of the Treasury has, and had 
 before the date of the opinion of the Attorney 
 General, scheduled and contracted for such arti- 
 cles under the said act * * * 
 
 "The articles here in question are purchased 
 on a considerable scale, and used alike by all 
 departments of the GoAornment * * * I 
 
 am unable to agree with the Attorney General 
 in his narrow and nonbeneficial construction 
 of this law." 
 
 This decision of the Comptroller of the Treas- 
 ury, under date of March 31, 1913, was pub- 
 lished with the following note: "The above 
 decision was prepared on the 12tli day of March, 
 1913, but withheld pending the action of the 
 Attorney General on a submission by the Secre- 
 tary of the Treasury relative to a reconsidera- 
 tion of the opinion of February 27, 1913, the 
 one mentioned in the submission to tliis office 
 and referred to in the above decision. Said 
 sul)mission resulted in a withdrawal of the 
 opinion, supra, of the Attorney General, under 
 date of March 26, 1913, in which he held that 
 the question involved in said withdrawn opin- 
 ion was one involving a payment by the head 
 of a Government establishment, and hence for 
 the Comptroller of the Treasury to decide." 
 (19 Comp. Dec, 617. But see above, VI (A) 
 "Attorney General's jurisdiction not curtailed 
 by the powers given Comptroller; and VI (C), 
 " When Attorney General will render an opin- 
 ion.") 
 
 Will not concur in referring question 
 of law to Attorney General. — ' ' With refer- 
 ence to your further suggestion that I concur 
 in a submission of the question with reference 
 to the validity of this regulation to the Attor- 
 ney General, permit me to say that I can see 
 no propriety in or reason for my so doing. The 
 law has cast upon the Comptroller of the Treas- 
 ury the duty not only of deciding upon the 
 facts but also of construing the law in con- 
 nection with the settlement of the public 
 accounts and particularly those accounts that 
 involve the expenditure of public moneys. " 
 (21 Comp. Dec, 554, 560. But see cases noted 
 above, in which Comptroller of the Treasury 
 has acquiesced in the submission to the Attor- 
 ney General by the head of a department of 
 questions involving payments; and has, in a 
 number of instances, himself suggested such 
 reference.) 
 
 The Comptroller of the Treasury is not 
 authorized to render an advance decision upon 
 a question not involving a payment to be made 
 by or under the officer requesting the opinion. 
 It is one of the functions of the Attorney Gen- 
 eral to give his opinion at the request of a head 
 of a department upon cjuestions of law arising 
 in the administration of his department; which 
 is to be distinguished from the duty of the 
 Comptroller of the Treasury to render decisions 
 upon questions involving payments, which 
 decisions govern the settlement of accounts 
 therefor. (10 Comp. Dec, 812.) (The ques- 
 tion in this case was whether the chief clerk 
 of the Railway Mail Service is competent to 
 administer the oath of office to appointees.) 
 
 Where the disl^ursement of an appropriation 
 was under the charge of the Secretary of the 
 Interior, and the question arose whether under 
 said appropriation the Secretary of the Interior 
 had authority to authorize the United States 
 attorney to employ witnesses and incur costs 
 contemplated by liim in connection with cer- 
 tain condemnation proceedings, the comp- 
 troller stated that in his opinion "all such ex- 
 penses should be ordered and approved by the 
 Attorney General and paid from an appropria- 
 
 319 
 
Sec. 366. 
 
 Pt.2. REVISED STATUTES. 
 
 Justice Department. 
 
 tion under the Department of Justice;" but that 
 the question presented 'appears to be cue of 
 administration." wliich the Seiretary of the 
 Interior, if he so desired . nii^dit sul imit to the At- 
 torney Cieneral for an ad visory opinion under sec- 
 tion 1")(), Revised Statutes. "(9 Comp. Dec, 793; 
 see also 9 Comp. Dec, 446, 451.) 
 
 Wliere the (piestion submitted is one as to 
 the h'uality of a pro])osed payment for certain 
 buiUlinv'S and outlit, lait back of the question 
 of the expenditure of the money is that of the 
 acciuisition of tlie site, tliis involves questions 
 of law unconnected with any expenditure of 
 
 guldic money, and hence not within the 
 omptroller's jurisdiction. Therefore suggested 
 tJiat the opinion of the Attorney General should 
 be ol)tained upon the primary question in- 
 volved in the acquisition of the site. (5 
 Comp. Dec, 682; see also 3 Comp. Dec, 730.) 
 
 VII. MiSCELLAXEOUS. 
 
 The Attorney General will not review 
 the opinion of a former Attorney General 
 unless a prnper case is presented therefor and 
 submitted by the head of a department. (11 
 Op. Atty. Gen., 189.) 
 
 A question once definitely answered by the 
 Attorney General and left at rest for a long 
 term of years should be reconsidered by one of 
 his successors only in a very exceptional case. 
 (21 Op. Attv. Gen., 24; affirmed 24 Op. Atty. 
 Gen., 53; 24 'Op. Atty. Gen. 127, 132; compare 27 
 Op. Attv. Gen. 212, 215. See also 17 Op. Atty. 
 Gen. 193.) 
 
 The conclusions of a Federal coirrt are 
 binding upon the Attorney General until 
 reversed l>y a higher court. (24 Op. Atty. 
 Gen., 59.) [The Attorney General has not al- 
 ways followed decisions of the Court of Claims. 
 Thus, the Court of Claims held that a vacancy 
 occurring while the Senate was temporarily 
 adjourned was legally filled by the President 
 as a "recess" appointment. (Gould v. U. S., 
 19 Ct. Cls., 593, 595.) Thereafter the Attorney 
 General, with knowledge of this decision, ad- 
 vised the President that a vacancy occurring 
 during a temporary adjournment could not be 
 filled by him as a ''recess'' appointment. (23 
 Op. Atty. Gen., 599; but see 33 Op. Atty. 
 Gen.. 20.) Also in 29 Op. Atty. Gen., 397, 
 407, the Attorney General cjuoted from the 
 decision of the Court of Claims in Geddes v. 
 U. S.. 38 Ct. Cls., 428, 445, and then said: 
 "This reascming, as the minority hold, is in 
 direct conflict with that of United States v. 
 Tyler, supra, and can not be accepted as a 
 correct statement of the law." It will be noted 
 that here the Attorney General declmed to 
 accept the "reasoning" and not the conclu- 
 sions of the Court of Claims.] 
 
 The Attorney General's opinions should be 
 followed unless contrary to some authoritative 
 judicial decision which puts the matter at rest. 
 (25 Op. Atty. Gen., 301.) 
 
 The opinions of the Attorney General should 
 be regarded by the heads of departments as law 
 until wathdrawn bv him or overruled by the 
 courts. (20 Op. Atty. Gen., 654, 659; 20 Op. 
 Atty. Gen., 719, 722.) 
 
 Reasons for declining to render opinions 
 except when required by law. — The Attor- 
 ney General has no right to give an official opin- 
 
 ion except in those cases in which it is required 
 of him by law. (6 Op. Atty. Gen., 24.) 
 
 To step beyond the circle of his duties as 
 defined by law would in itself be a violation of 
 law, independentiv of other relations of the 
 subject. (6 Op. Atty. Gen., 25.) 
 
 I should consider myself as transcending the 
 limits of my commiasion in a very unjustifiable 
 manner in attempting to attach the weight of 
 my ojjice to any opinion not authorized by the 
 law which prescribes my duties. (1 Op. Atty 
 Gen., 211.) 
 
 The Attorney General is sworn to discharge 
 the duties of his oflice according to law. To be 
 instrumental in enlarging the sphere of his 
 official diitios beyond that which is prescribed 
 by law would, in my opinion, be a \aolation of 
 his oath. It would be incalculably dangerous 
 to permit an officer to act, under color of his 
 office, beyond the pale of the law. The pre- 
 cedent would not be the less dangerous on ac- 
 count of the purity of motives in which it 
 originated. (1 Op. Atty. Gen., 335.) 
 
 The Attorney General should not feel at lib- 
 erty to augment the duties of his office, already 
 sufficiently laborious, by setting a precedent 
 by the voluntary assumption of others which 
 do not belong to the office. (1 Op. Atty. Gen., 
 608, 609.) 
 
 Is very imwilling to create a precedent which 
 shall incumber his burdensome office with du- 
 ties foreign to it. (1 Op. Atty. Gen., 608, 613.) 
 • His opinion would not only be gratuitous, but 
 unauthorized. (2 Op. Atty. Gen., 311.) 
 
 Nor will the Attorney General render an un- 
 official opinion in such a case, even as an indi- 
 vidual, ])ecause in the relation he stands to the 
 Government an opinion from him might be 
 looked upon as an official one, and thus connect 
 the Government with an individual contro- 
 versy in which it has no concern and with 
 which it ought not to interfere. (2 Op. Atty. 
 Gen., 531.) 
 
 For the Attorney General to render an opin- 
 ion in such a case would be to lend the name of 
 the Government to matters of controversy with 
 which it is not connected by law, and would 
 thus involve unauthorized interference with 
 private rights. (6 Op. Atty. Gen., 24.) 
 
 He has no warrant to act outside of the stat- 
 utes which define his office. (15 Op. Attv. 
 Gen., 138; 18 Op. Atty. Gen., 365.) 
 
 He is not authorized or required to give an 
 official opiiuon except in the cases specified by 
 law. If he should do so, he would overstep the 
 boundaries which appear to be prescribed for 
 him by a long line of decisions and uniform 
 practice, and would commit himself upon a 
 question which might be properly submitted to 
 him thereafter in accordance with law. (21 
 Op. Attv. Gen., 174; 20 Op. Atty. Gen., 609, 
 723.) 
 
 His opinion, where not required by law, 
 would be extraofficial and unauthorized. (10 
 Op. Atty. Gen., 220; 19 Op. Attv. Gen., 7; 20 
 Op. Atty. Gen., 724.) 
 
 He is not permitted by law to render an offi- 
 cial opinion upon questions not covered by the 
 statute. (21 Op. Atty. Gen., 174.) 
 
 His opinion, if rendered in a case not speci- 
 fied by law, would be entitled to no more con- 
 sideration than the opinion of any person 
 
 320 
 
Justice Department. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 358. 
 
 presumed to have some knowledge of the point 
 in question. (17 Op. Atty. Gen., 357; 20 Op. 
 Attv. Gen., 383,667, 440; 2 Op. Atty. Gen., 
 531") 
 
 He is not authorized to give an official opin- 
 ion in any case not falling ■within the scope of 
 hia duties, so as to connect the Government 
 with iuf livid ual controversies in which it has 
 no concern and with Avhich it ought not to inter- 
 fere. (6 Op. Atty. Gen., 326, 334.) 
 
 Such opinions would be in violation of hia 
 oath of office and of dangerous example. (10 
 Op. Atty. Gen., 164.) 
 
 Woidd make it impossible for the Attorney 
 General to attend to his duties as prescribed by 
 law. (5 Op. Atty. Gen., 165.) 
 
 Would be unwarranted by law (11 Op. 
 Atty. Gen., 4); not the duty or practice of the 
 
 Attorney General (13 Op. Atty. Gen., 568; 19 
 Op. Atty. Gen., 414); not permitted by statute 
 or precedent (19 Op. Atty. Gen., 414); would 
 be inexpedient. (13 Op. Atty. Gen., 535.) 
 
 No officer should be permitted to stretch his 
 authority and carry the influence of his office 
 beyond the circle which the positive law of the 
 land has drawn around him. (1 Op. Atty. Gen., 
 493; 20 Op. Atty. Gen., 440.) 
 
 Will render opinion where jurisdiction is 
 doubtful. — Where the Attorney General en- 
 tertains a doubt as to whether a case presented 
 constitutes one of a character prescribed by 
 statute as justifying and requiring the expres- 
 sion of an opinion by him, he will as a matter of 
 public policy aa well as of courtesy determine 
 such doubt in favor of the propriety of such ad- 
 vice. (27 Op. Atty. Gep., 38.) 
 
 Sec. 357. [Legal advice to Departments of War and Navy.] Whenever a 
 question of law arises in the administration of the Department of War or the 
 Department of the Navy, the cognizance of which is not given by statute to 
 some other officer from whom the head of the Department may require advice 
 it shall be sent to the Attorney-General, to be by him referred to the proper 
 officer in his Department, or otherwise disposed of as he may deem proper. — 
 (22 June, 1870, c. 150, s. 6, v. 16, p. 163.) 
 
 Whether subordinate oflElcers of the War 
 and Navy Departments may refer ques- 
 tions to the Attorney General, as well as 
 the heads of those departments, has been sug- 
 gested but not decided by the Attorney Gen- 
 eral. If this section allows such action, "it is 
 evident that it makes a distinction therein be- 
 twixt these departments and all others, and 
 that for a reason wliich upon its face it suggests. ' ' 
 (18 Op. Atty. Gen., 59. See decisions noted 
 under section 356, holding that the opinion of 
 the Attorney General may be required unde 
 that section only by the President or the head 
 of a department, and will not be rendered to 
 subordinate officers; see also file No. 20400-200 
 Op. 13, Sept. 25, 1920, quoting Atty. Gen.'s 
 letter of Sept. 13, 1920, file No. 204625, re- 
 questing that all references from the Navy 
 Dept. come directly through or by direction 
 of the Secretary of the Navy.) 
 
 Questions of law arising in the Navy De- 
 partment. — In the Navy Department the law 
 authorizes a Judge Advocate General who is by 
 statute given cognizance, among other things, 
 of such duties "as have heretofore been per- 
 formed by the Solicitor and Naval Judge Ad- 
 vocate General." (Act June 8, 1880, 21 Stat., 
 164). The duties of the Judge Advocate Gen- 
 eral, as defined by the Navy Regulations, 1920, 
 include "all matters of law arising in the Navy 
 Department." (Art. 469 C. N. R. 2; art. 393 
 
 (3), C. N. R. 2. ) Provision has also been made 
 in annual appropriation acts for a Solicitor in 
 the Navy Department, whose duties are not 
 defined by statute. (See legislative, executive 
 and judicial appropriation act, May 22, 1908, 
 35 Stat. 218, and subsequent years.) By Navy 
 Regulations, 1920, it is provided that "the So- 
 licitor shall perform such duties as may be 
 assigned by the Judse Advocate General of the 
 Navy." (Art. 393 (4), C. N. R. 2.) 
 
 The Attorney General has requested 
 that the opinion of the law officer of a depart- 
 ment accompany request for his opinion by 
 the head of such department; and has de- 
 clined to render an opinion upon a question of 
 law involving the personnel of the Navy until 
 an opinion on such question had been prepared 
 by the Judge Advocate General of the Navy. 
 (File 22724-16:1, Jan. 25, 1911; file 27223-12, 
 Jan. 20, 1915. See note to sec. 356, R. S.) 
 
 Suits in foreign countries. — In view of 
 sections 189, 357, and 365, Revised Statutes, 
 the Secretary of the Navy is not authorized to 
 employ counsel in foreign countries to institute 
 suit in behalf of the United States to recover 
 for damages caused to a vessel of the United 
 States; but the case should be referred to the 
 Department of Justice for attention. (21 Op. 
 Atty. Gen. 195. For other cases, see note to 
 sec. 189, R. S.) 
 
 Sec. 358. [Reference of questions by Attorney-General to subordinates.] 
 Any question of law submitted to the Attorney-General for his opinion, except 
 questions involving a construction of the Constitution of the United States, 
 may be by him referred to such of his subordinates as he may deem appro- 
 priate, and he may require the vsTitten opinion thereon of the officer to whom 
 
 321 
 
Sec. 369. 
 
 Pt.2. REVISED STATUTES. 
 
 Justice Department. 
 
 the same may be referred. If the opinion given by such officer is approved by 
 the Attorney-General, such approval indorsed thereon shall give the opinion 
 the same force and effect as belong to the opinions of the Attorney-General. — 
 (22 June, 1870, c. 170, s. 4, v. 16, p. 162.) 
 
 As to "force and effect" of opinions rendered 
 by Attornev General, see note to section 
 356, Revised Statutes. 
 The Attorney General must personally 
 pass upon every question submitted to him 
 for opinion; for although he may under this 
 section rol'or the ciuo-stion to a subordinate for 
 a written opinion, the action of the subordinate 
 must be examined and appi'oved by the At- 
 torney General to give it effect. (21 Op. 
 Atty. Gen., 174, 176.) 
 
 Questions involving the construction 
 of the Constitution should be submitted to 
 the Attorney General for his personal opinion. 
 The advice of the Solicitor of the Treasury 
 may be asked upon any other question of law 
 arising in the Treasury Department, and such 
 advice is regarded as rendered by him in his 
 character as assistant to the Attorney General. 
 (20 Op. Atty. Gen., 656, 657.) 
 
 Sec. 359. [Conduct and argument of cases.] Except when the Attorney- 
 General in particular cases otherwise directs, the Attorney-General and Solicitor- 
 General shall conduct and argue suits and writs of error and appeals in the 
 Supreme Court and suits in the Court of Claims in which the United States is 
 interested, and the Attorney-General may, whenever he deems it for the interest 
 of the United States, either in person conduct and argue any case in any court 
 of the United States in which the United States is interested, or may direct the 
 Solicitor-General or any officer of the Department of Justice to do so. — (24 Sept., 
 1789, c. 20, s. 35, v. 1, p. 92. 25 Jirne, 1868, c. 71, s. 5, v. 15, p. 75. 22 June, 
 1870, c. 150, s. 5, V. 16, p. 162. U. S. v. Lawrence, 13 Blatch., 295.) 
 
 This section is modified by act of June 30, 1906 
 (34 Stat., 816), which authorizes the Attor- 
 ney General or any attorney appointed by 
 him to conduct any kind of legal proceed- 
 ing which district attorneys are authorized 
 to conduct, including grand jury proceed- 
 ings. 
 
 As to duty of Attorney General in connection 
 with proceedings in Court of Claims, see 
 sections 180, 185, Judicial Code, act March 
 3, 1911 (36 Stat., 1142). 
 
 Attorney General may require certain informa- 
 tion to be furnished him by departments in 
 connection with suits in the Court of 
 Claims. (Sec. 188, R. S.) 
 Suits in the Court of Claims. — The Attor- 
 ney General is the only officer of the Govern- 
 ment, except his assistants authorized by him, 
 who has any right to represent the United States 
 in suits in the Court of Claims. (Campbell v. 
 U. S., 19 Ct. Cls., 426, 429.) 
 
 The authority of the Attorney General to 
 "conduct suits" in the Court of Claims on be- 
 half of the Government may fairly be held to 
 include at least every act in the conduct of such 
 suits which an attorney at law in a suit between 
 individuals might lawfully do, with this reser- 
 vation, as has uniformly been held by the Court 
 of Claims, that he can not on the trial of a cause 
 bind the Government by admitting facts ad- 
 verse to it unless they are such as it is his offi- 
 cial duty to know and as have become known to 
 him offifially in the course of the discharge of 
 such duty. (Campbell v. U. S., 19 Ct. Cls., 
 426, 429.) 
 
 Proceedings in Supreme Court. — When a 
 case in which the Government is interested 
 comes to the Supreme Court from any lower 
 court, it passes beyond the limits within which 
 a district attorney has jurisdiction and exercises 
 his powers and falls by the terms of this section 
 within the special care of the Attorney General. 
 The Attorney General may in his discretion 
 make other arrangements for the management of 
 such a case, but this discretion does not abridge 
 the fact that full responsibility and control are 
 imposed directly upon him as the head of the 
 Department of Justice. (U. S. v. Winston, 170 
 U. S., 522, 524.) 
 
 The solicitor in the office of the Judge Advo- 
 cate General of the Navy has represented the 
 United States in the Supreme Court (U. S. v. 
 Smith, 197 U.S., 386; hie 469-1904); as has also 
 a commissioned officer of the Marine Corps, who 
 appeared in behalf of the United States "by 
 special leave of the court. ' ' (Johnson v. Sayre, 
 158 U. S., 113; file 5728-1894. See also U. S. v. 
 Freeman, 3 How., 560, in which defendant, an 
 officer of the Marine Corps, submitted printed 
 argument for himself and was not represented 
 by counsel.) 
 
 Proceedings in inferior Federal courts. — 
 It is at least doubtful whether the authority 
 given the Attorney General to "conduct and 
 argue any case in any court of the United States 
 in which the United States is interested " con- 
 fers upon him any authority to commence and 
 institute i)roceedings except through the dis- 
 trict attornevs. (Attorney General v. Rumford 
 Chemical Works, 32 Fed. Rep., 608, 623. But 
 see act June 30, 1906, noted above.) 
 
 322 
 
Justice Department. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 362. 
 
 It is probable that the intention of this section 
 was to settle the right of the highest law officer 
 of the United States and the Solicitor General 
 and the officers of the Department of Justice to 
 "conduct and argue" cases "in any court" as 
 they had been permitted to do in the Supreme 
 Court and in the Court of Claims, and to leave 
 public prosecutions until they come before the 
 court to which they are returnable within the 
 exclusive direction of the district attorney as 
 theretofore declared. (U. S. v. Rosenthal, 121 
 Fed. Rep., 866. But see act June 30, 1906, 
 noted above.) 
 
 Proceedings before grand jury.— The At- 
 torney General, the Solicitor General, nor any 
 
 officer of the Department of Justice is authorized 
 by sections 359, 367, or other provisions of the 
 Revised Statutes to conduct or to aid in the con- 
 duct of proceedings before a grand jury, nor has 
 a special assistant to the Attorney General such 
 power. (U. S. v. Rosenthal, 121 Fed. Rep., 
 862.) [This is now authorized by act June 30, 
 1906, above noted.] 
 
 Suits in State courts. — It should be ob- 
 served that by section 359 the Attorney General 
 may not "conduct and argue any case" in a 
 State court. Section 367 gives that power. 
 (U. S. V. Rosenthal, 121 Fed. Rep., 867.) 
 
 Sec. 360. [Performance of duty by officers of the Department of Justice.] 
 The Attorney-General may require any solicitor or officer of the Department 
 of Justice to perform any duty required of the Department or any officer 
 thereof.— (22 June, 1870, c. 150, s. 14, v. 16, p. 164.) 
 
 The Attorney General has express au- 
 thority under this section and section 367 to 
 send an officer of the Department of Justice to 
 any State in the United States to attend to the 
 
 taking of a deposition in a suit in which the 
 United States is interested and which is pending 
 in another State. (U. S. v. Ady, 76 Fed. Rep., 
 359, 363.) 
 
 Sec. 361. [Legal services required by the President, heads of depart- 
 ments and subordinates.] The officers ' of the Department of Justice, 
 under the direction of the Attorney-General, shall give all opinions and render 
 all services requiring the skill of persons learned in the law necessary to enable 
 the President and heads of Departments, and the heads of Bureaus and other 
 officers in the Departments, to discharge their respective duties; and shall, on 
 behaK of the United States, procure the proper evidence for, and conduct, 
 prosecute, or defend all suits and proceedings in the Supreme Court and in the 
 Court of Claims, in vs^hich the United States, or any officer thereof, as such 
 officer, is a party or may be interested; and no fees shall be allowed or paid to 
 any other attorney or counselor at law for any service herein required of the 
 officers of the Department of Justice, except in the cases provided by section 
 three hundred and sixty-three. — (22 June, 1870, . 150, s. 14, v. 16, p. 164.) 
 
 See section 188, Revised Statutes, concerning 
 evidence to be furnished Attorney General 
 to defend suits in Court of Claims. 
 
 See section 189, Revised Statutes, and note, as 
 to employment of attorneys or counsel by 
 the heads of departments generally, employ- 
 ment of counsel to serve as judge advocate 
 or to assist the judge advocate of a naval 
 court-martial, employment and pajinent 
 of counsel in foreign countries, etc. See 
 also note to section 362, Revised Statutes. 
 
 Legal assistance to subordinate offi- 
 cers. — P^or the guidance of the heads of bureaus 
 and other officers of the departments in the 
 discharge of their duties, provision is made by 
 this section for assistance from the oflicers of the 
 Department of Justice under the direction of 
 the Attorney General. (20 Op. Atty. Gen., 
 608, 609. See also note to sees. 356 and 357, 
 R. S.) 
 
 Sec. 362. [Superintendence of district attorneys and marshals.] The Attorney- 
 General shall exercise general superintendence and direction over the attorneys 
 and marshals of all the districts in the United States and the Territories as to the 
 manner of discharging their respective duties ; and the several district attorneys 
 and marshals are required to report to the Attorney-General an account of 
 their official proceedings, and of the state and condition of their respective 
 offices, in such time and manner as the Attorney-General may direct. — (2 Aug., 
 1861, c. 37, s. 1, V. 12, p. 285. 22 June, 1870, c. 150, ss. 16, 17, v. 16, p. 164.) 
 
 323 
 
Sec. 363. 
 
 Pt. 2. REVISED STATUTES. 
 
 Justice Department. 
 
 Purpose of section. — The Attorney Gen- 
 eral being the chief law oHker of the Govern- 
 ment, Cons;ros.s docMued it i^rojicr to sul)ject to 
 his general sii))orint(Mi(len(e tnese subordinate 
 law oHiccrs to the end tluil the legal l)usiness of 
 the I'nited States in their luuids, whether civil 
 or criminal, should l)e placed more directly 
 under the eye and witliin the control of the 
 Government! (10 ()]i. Atty. (!cn., 95.^ 
 
 This section does not authorize the At- 
 torney General to control the action of the 
 district attorneys in criminal cases by general 
 regulation. His power must be exercised by 
 giving jKxrticular instructions in particular 
 cases and based on the facts of such cases. 
 (Fish D. U. S., 36 Fed. Rep., 677.) 
 
 Instructions to district attorneys in 
 naval cases. — In cases in which persons in 
 the naval service applj^ for writs of habeas 
 corpus, it is the practice of the Attorney Gen- 
 eral, upon request of the Secretary of the Navy, 
 to instruct the United States attorney for the 
 district in which the proceeding is instituted, 
 to render all necessary assistance to the officer 
 upon whom the writ is served in order to protect 
 the interests of the Government. (File 26522; 
 G. 0. 121, Sept. 17, 1914.) 
 
 Similar instructions are issued by the Attor- 
 ney General in other cases of legal proceedings 
 instituted against officers of the Na\'y as the 
 result of official acts performed by them. (File 
 204-04, Jan. 15, 1904, suit of Paymaster Robt. 
 B. Rodney, retired, against Capt. Sam. C. 
 Lemly, Judge Advocate General; file 27231- 
 8:6, Feb. 6, 1911, mandamus proceeding by 
 Capt. Jefferson F. Moser, U. S. N., retired, 
 against Hon. George von L. Meyer, Secretary 
 of the Nav}^; file 26522-19:4, December 3, 
 1912, suit of W. W. Dickey, chief commissary 
 steward, against Rear Admiral Doyle, Capt. 
 Huse, Capt. Welles, Capt. Quimby, U. S. N., 
 and Capt. Marix, U. S. M. C; file 28478^2:1. 
 suit of I3enj. B. Abrahams against First Lieut. 
 Howard C. Judson, U. S. M. C; see also, 9 Op. 
 Atty. Gen., 51.) 
 
 In cases in which persons fratidulently imper- 
 sonate officers or enlisted men of the Navy, the 
 Attorney General causes criminal prosecutions 
 to be instituted by the United States attorneys 
 where the matter is brought to his attention by 
 the Secretary of the Navy (file 21355); and ap- 
 propriate instructions are issued by him to dis- 
 trict attorneys in other classes of cases concern- 
 ing the Navy Department, such as reported 
 violations of the 8-noiir law by contractors (file 
 10107), etc. 
 
 In trials before courts-martial the Attorney 
 General, upon request of the Secretary of the 
 Na\-y in special cases, has instriicted a United 
 States attorney to assist the judge advocate 
 (file 26251-5816:2); and has issued similar in- 
 stnictions in cases under investigation by courts 
 of inqiury (file 14625-183:1; 9608-44:4. See 
 also note to sec. 189, R. S.). 
 
 The Attorney General, upon request of the 
 Secretary of the Navy, has instructed a United 
 
 States attorney to assist in the prosecution of a 
 civil suit brought by a chief petty ofiicer 
 against private parties for discrimination against 
 the naval uniform. (File 5421-3; see also file 
 7657-330.) 
 
 The Secretary of the Navy will not request 
 the Attorney General to instruct United States 
 attorneys to institute criminal proceedings 
 against applicants for enlistment in the Marine 
 Coqjs alleged to have fraiidulently obtained 
 Government transportation, it appearing that 
 such attorneys have declined to prosecute these 
 cases, and that the necessity for proceedings in 
 the civil courts might be ob\dated by enlisting 
 the men l)efore furnishing them with transi^orta- 
 tion, thereby subjecting them to the juris- 
 diction of naval courts-martial. (File 7657- 
 180.) 
 
 \\ here an officer asking that legal assistance 
 be furnished him has failed to give the full facts 
 of the case to the Navy Department, although 
 afforded ample opportunity to do so, and in 
 consequence the department has not sufficient 
 information to enable it to act intelligently 
 upon the request, the case is not a proper one 
 for reference to the Attorney General. (File 
 26262-1705:3, May 21, 1915.) 
 
 The Attorney General can not instruct a 
 United States attorney to appear in a State court 
 to assist in the prosecution of a private citizen 
 charged with killing a person in the naval serv- 
 ice; it must be assumed in the absence of facta 
 tending to show the contrary that the State 
 authorities will do their full duty in the matter; 
 and attempted interference with the State au- 
 thorities woidd be improper. (File 26250- 
 340:3, June 11, 1912, following letter of Attorney 
 General, Apr. 18, 1912, file 26250-340:2; 7657- 
 374.) 
 
 Although the Attorney General may enter- 
 tain doubt whether, in view of the peculiar 
 circumstances of hardship in a particular case, 
 it is desirable to proceed ^vith a criminal prose- 
 cution institiitecl at the instance of the Navy 
 Department, he will nevertheless direct the 
 United States attorney to proceed with the 
 case if in the opinion of the Secretary of the 
 Navy the interests of the Navy Department 
 render it desirable that such a prosecution be 
 had. (File 5939-6, Feb. 12, 1907.) [The Sec- 
 retary of the Navy concurring in the recom- 
 mendation of the United States attorney in this 
 case, the Attorney General authorized the latter 
 to dismiss the case, which was a prosecution for 
 perjury against a former enlisted man who had 
 been discharged from the Marine Corps upon 
 writ of habeas corinis on account of fraudulent 
 enlistment. (File5939-7,Feb. 18, 1907.)] 
 
 Instructions to marshals.-The Attorney 
 General declines to instruct United States mar- 
 shals to apprehend and return deserters from 
 the Navy where Congress has not seen fit to 
 confer such authority upon civil officers. (File 
 5621-1, Nov. 17, 1906. For subsequent legis- 
 lation on this sTibject see act Feb. 16, 1909, sec. 
 15, 35 Stat.. 622.) 
 
 Sec. 363. [Retaining counsel to aid district attorneys.] The Attorney-Gen- 
 eral shall, whenever in his opinion the pubHc interest requires it, employ and 
 retain, in the name of the United States, such attorneys and counselors at law 
 as he may think necessary to assist the district attorneys in the discharge of 
 
 324 
 
Justice Department. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 366. 
 
 their duties, and shall stipulate with such assistant attorneys and counsel the 
 amount of compensation, and shall have supervision of their conduct and pro- 
 ceedings.— (2 Aug., 1861, c. 37, s. 2, v. 12, p. 285. 3 Mar., 1869, c. 121, s. 1, 
 V. 15, pp. 283, 294. 10 April, 1869, c. 25, v. 16, p. 46. 22 June, 1870, c. 150, 
 s. 16, V. 16, p. 164.) 
 
 See note to section 3G6, Revised Statutes. 
 
 Sec. 364. [Attendance of counsel to be provided by Attorney-General.] 
 Whenever the head of a Department or Bureau gives the Attorney-General 
 due notice that the interests of the United States require the service of counsel 
 upon the examination of witnesses toucliing any claim, or upon the legal in- 
 vestigation of any claim, pending in such Department or Bureau, the Attorney- 
 General shall provide for such service. — 14 Feb., 1871, c. 51, s. 3, v. 16, p. 412.) 
 
 A similar provision is contained in section 187, 
 Revised Statutes. 
 The object of these statutory provisions 
 (sees. 363, 364, and 365, R. S.) is manifest. 
 vMule giving the Attorney General full power 
 to employ counsel for tne United States to 
 assist those upon whom regiilarly devolve the 
 duty of representing the Government in the 
 courts without special compensation, Congress 
 intended to restrict the exercise of that power 
 to the extent indicated in section 365. It was 
 left to that officer to determine whether the 
 public interests required the employment of 
 special counsel, but that the discretion given 
 
 him might not be abused and that unnecessary 
 expense might be avoided it was declared (sec. 
 365) that except in the cases of the respective 
 district attorneys and assistant district attorneys 
 no compensation should be allowed to any per- 
 son as an attorney or counsel for the United 
 States imless specially authorized by law, and 
 then only on the certificate of the Attorney 
 General that such services were actually ren- 
 dered and that the same could not have been 
 performed by the Attorney General or by the 
 Solicitor General or by the officers of the De- 
 partment of Justice or by the district attorneys. 
 (U. S. V. Crosthwaite, 168 U. S., 375, 379.) 
 
 Sec. 365. [Counsel fees restricted.] No compensation shall hereafter be 
 allowed to any person, besides the respective district attorneys and assistant 
 district attorneys for services as an attorney or counselor to the United States, 
 or to any branch or Department of the Government thereof, except in cases 
 specially authorized by law, and then only on the certificate of the Attorney- 
 General that such services were actually rendered, and tliat the same could 
 not be performed by the Attorney-General, or Solicitor-General, or the officers 
 of the Department of Justice, or by the district attorneys. — (22 June, 1870, 
 c. 150, s. 17, V. 16, p. 164.) 
 
 See note to section 364, Revised Statutes. 
 
 Sec. 366. [Appointment and oath of special attorneys or counsel.] Every 
 attorney or counselor who is specially retained, under the authority of the 
 Department of Justice, to assist in the trial of any case in which the Govern- 
 ment is interested, shall receive a commission from the head of such Depart- 
 ment, as a special assistant to the Attdrney-General, or to some one of the 
 district attorneys, as the nature of the appointment may require; and shall 
 take the oath required by law to be taken by the district attorneys, and shall 
 be subject to all the liabilities imposed upon them by law. — (22 June, 1870, 
 c. 150, s. 17, V. 16, p. 164.) 
 
 See section 189, Revised Statutes, and note 
 thereto. 
 
 Counsel employed in foreign country to 
 defend master of a United States naval aux- 
 iliary in suit for collision, not required to take 
 oath of office. File 4729-18. (See note to 
 sec. 189, R. S.) 
 
 Sections 363 and 366 must be construed 
 together and as referring to the same class of 
 
 special assistants. They do not authorize the 
 Attorney General to appoint special assistants 
 to a district attorney having the authority or 
 right to appear before and participate in the 
 proceedings of a grand jury. (U. S. v. Chem- 
 ical Co., 163 Fed. Rep., 66; but see note to sec. 
 359, R. S.) 
 
 325 
 
Sec. 383. Pt. 2. REVISED STATUTES. Justice Department. 
 
 Sec. 367. [Interest of United States in pending suits — who may attend to.] 
 The Solicitor-General, or any officer of the Department of Justice, may be sent 
 by the Attorney-General to any State or District in the United States to attend 
 to the interests of the United States in any suit pending in any of the courts 
 of the United States, or in the courts of any State, or to attend to any other 
 interest of the United States.— (22 June, 1870, c. 150, s. 5, \. 16, p. 162.) 
 
 See note to section 360, Revised Statutes. 
 
 Sec. 383. [Publication of opinions.] The Attorney-General shaU from time 
 to time cause to be edited, and printed at the Government Printing-Office, an 
 edition of one thousand copies of such of the opinions of the law-officers herein 
 authorized to be given as he may deem valuable for preservation in volumes, 
 whicli sliall be, as to size, quality of paper, printing, and binding, of uniform 
 style and appearance, as nearly as practicable, with volume eight of such 
 opinions, published, by Robert Farnham, in the year eighteen hundred and 
 sixty-eight. Each volume shaU contain proper head-notes, a complete and 
 full index, and such foot-notes as the Attorney-General may approve. Such 
 volumes shall be distributed in such manner as the Attorney-General may from 
 time to time prescribe. — (22 June, 1870, c. 150, s. 18, v. 16, p. 165.) 
 
 The opinions of the successive Attor- 
 neys General, possessed of greater or less 
 amovmt of legal acumen, acquirement, and 
 experience, have come to constitute a body of 
 legal precedents and exposition, having author- 
 
 ity the same in kind if not the same in degree 
 with decisions of the courts of justice. (6 Op. 
 Atty. Gen., 326, 334. See note to sec. 356, R. S., 
 as to weight of Attorney General's opinions.) 
 
 326 
 
TITLE IX. 
 THE POST-OFFICE DEPARTMENT. 
 
 Sec. 
 
 388. Establishment of Post-Office Department. 
 
 391. Oath of office. 
 
 392. Oath, before whom taken. 
 
 Sec. 
 
 39G. Duties of Postmaster-General. 
 398. Postal arrangements with foreign 
 tries. 
 
 coun- 
 
 Sec. 388. [Establishment of Post-Office Department.] There shall be at the 
 seat of Government an Executive Department to be known as the Post-Office 
 Department, and a Postmaster-General, who shall be the head thereof, and who 
 shall be appointed by the President, by and with the advice and consent of the 
 Senate, and who may be removed in the same manner; and the term of the 
 Postmaster-General shall be for and during the term of the President by whom 
 he is appointed, and for one month thereafter, unless sooner removed. — (8 
 May, 1794, c. 23, s. 3, v. 1, p. 357; 8 June, 1872, c. 335, ss. 1, 2, v. 17, p. 283.) 
 
 Envelopes for use by all executive depart- 
 ments and branches of the service under 
 their jmisdiction shall be contracted for by 
 the Postmaster General for periods not ex- 
 ceeding four years, such envelopes to be 
 plain or printed as may be prescribed by 
 the department making the requisition. 
 (Act June 26, 1906, 34 Stat., 476.) 
 
 History and growth of executive departments — 
 Bee note to section 158, Prevised Statutes. 
 
 Navy mail clerks and assistant navy mail 
 clerks, appointed from enUsted men of the 
 Navy and Marine Corps, as to their duties 
 as such clerks shall be "governed by the 
 postal laws and regulations of the United 
 States." (Act May 27, 1908, 35 Stat., 417, 
 as amended by acts Aug. 24, 1912, 37 Stat., 
 554, Aug. 24, 1912, sec. 11, 37 Stat., 560, 
 Mar. 4, 1917, 39 Stat., 1188, and July 1, 
 1918, 40 Stat., 718..) 
 
 Ocean mail vessels are to be constructed ac- 
 cording to plans approved by the Secre- 
 tary of the Navy with reference to their 
 conversion into naval auxiliary cruisers; 
 no vessel to be employed by the Post- 
 master General in such service which is not 
 approved by the Secretary of the Navv. 
 (Act Mar. 3, 1891, sec. 4, 26 Stat., 831.) " 
 
 Ocean mail vessels may be taken by the United 
 States and used as transports or cruisers, 
 upon payment to owners of the full actual 
 value. (Act Mar. 3, 1891, sec. 9, 26 Stat., 
 832.) 
 
 Officers of the Navy may be detailed by Secre- 
 tary of the Navy for duty on ocean mail 
 vessels, if accepted by the contractor, and 
 while so employed they shall receive fur- 
 lough pay from the Government. (Act 
 Mar. 3, 1891, sec. 7, 26 Stat., 832.) 
 
 Penalty envelopes: Letters, packages, etc., 
 relating exclusively to business of the Gov- 
 
 ernment of the United States may be trans- 
 mitted free tln-ough the mail (act Mar. 3, 
 1877, sec. 5, 19_Stat., 335). The envelopes 
 of such matter in all cases shall bear appro- 
 priate indorsements containing the proper 
 designation of the office from which or 
 officer from whom the same are transmitted, 
 with a statement of the penal tv for their 
 misuse. (Act Mar. 3, 1879, sec. 29, 20 
 Stat., 362, amended by act Julv 5, 1884, 
 sec. 3, 23 Stat., 158. See Art. 5481, Naval 
 Insti-uctions, 1913. See also note to sec. 
 398, R. S., file 25885-6, and file 10726-15, 
 May 1, 1914.) 
 
 Penalty envelopes: Any department or officer 
 authorized to use penalty envelopes may 
 inclose them with return address to persons 
 from whom official information is desired. 
 (Act Mar. 3, 1879, sec. 29, 20 Stat., 362, 
 amended by act July 5, 1884, sec. 3, 23 
 Stat., 158.) But such envelopes shall not 
 be furnished for use to contractors with the 
 Government or to enable private persons 
 or concerns to send free reports, etc., which 
 they are required by law to make. (Sec. 
 500, "Postal Laws and Regulations," 1913.) 
 
 Penalty envelopes: No article or package shall 
 be admitted to the mails under the penalty 
 privilege unless it would be entitled to ad- 
 mission to the mails under laws requiring 
 pavment of postage. (Act June 26, 1906, 
 34 Stat., 477.) 
 
 Penalty envelopes: Lending or permitting use 
 of frank by or for benefit of any committee, 
 organization, or association, other than 
 committees composed of members of Con- 
 gress, declared unlawful. (Act June 26, 
 1906, 34 Stat., 477. )_ Fraudulent use of 
 official envelopes punishable by fine of not 
 more than .f300. (Criminal Code, act Mar. 
 4, 1909, sec. 227, 35 Stat., 1134.) 
 
 327 
 
Sec. 392. 
 
 Pt. 2. REVISED STATUTES. Post-Office Department, 
 
 Soldiers, sailors, and marines in service of the 
 X'nited States, may transmit unpaid and 
 duly certified letters to their destination, 
 iui(fer regulations i)rescribed by the Post- 
 master General, to be paid for on delivery. 
 (Act Mar. 3, 1879, sec. 9, 20 Stat., 358.) 
 During the present war such letters writ- 
 ten by soldiers, sailoi^s and marines in a 
 foreign country may be mailed free of 
 postage. (Act Oct. 3, 1917, 40 Stat., 327.) 
 
 President authorized to use armed forces to pre- 
 vent obstruction of mails durLng exist- 
 ing war. (Act Aug. 10, 1917, 40 Stat, 
 272.) 
 
 Registered mail: Lettere or packages may be 
 registered by executive departments and 
 bureaus without payment of registry fee. 
 (Act Mar. 3, 1879, sec. 29, 20 Stat., 362, 
 amended by act Julv 5, 1884, sec. 3, 23 
 Sta,t., 158.) 
 
 Sec. 391. [Oath of office.] Before entering upon the duties of his office, and 
 
 before he shall receive any salary, the Postmaster-General and each of the 
 
 persons employed in the postal service shall respectively take and subscribe, 
 
 before some magistrate or other competent officer, the following oath: "I, 
 
 A. B., do solemnly swear (or affirm) that I will faithfully perform all the duties 
 
 required of me, and abstain from everything forbidden by the laws in relation 
 
 to the estabhshment of post-offices and post^roads within the United States; and 
 
 that I wiU honestly and truly account for and pay over any money belonging 
 
 to the said United States which may come into my possession or control: So 
 
 help me, God."— (8 June, 1872, c. 335, s. 15, v. 17, p. 287; 5 Mar., 1874, c. 46, 
 
 V. 18, p. 19.) 
 
 Enlisted men of the Navy or Marine Corps, 
 designated as navy mail clerks or assistant 
 navy mail clerks, are required by law to 
 "take the oath of office prescribed for 
 employees of the Postal Service." (Act 
 May 27, 1908, 35 Stat., 417, as amended by 
 acts Aug. 24, 1912, 37 Stat., 554, Aug. 24, 
 1912, sec. 11, 37 Stat., 560, Mar. 4, 1917, 39 
 Stat., 1188, and July 1, 1918, 40 Stat., 718.) 
 By Naval Instructions, 1913 (art. 5401 (4)), 
 navy mail clerks and assistant navy mail 
 clerks are required to take an oath of 
 office which combines that prescribed in 
 
 section 1757, Re^"ised Statutes, with that 
 prescribed for the Postal Ser\'ice. (See 
 18 Op. Atty. Gen., 181. See also "Postal 
 Laws and Regulations, sec. 153;" and see 
 file 3980-1185, Jan. 15, 1916.) 
 
 "Every person employed in the Postal Service 
 shall be subject to all j^enalties and for- 
 feitures for the violation of the laws relating 
 to such service, whether he has taken the 
 oath of office or not." (Criminal Code, act 
 Mar. 4, 1909, sec. 230, 35 Stat., 1134.) 
 
 For modification of this section, see note to 
 section 392, Revised Statutes. 
 
 Sec. 392. [Oath, before whom taken.] Any officer, civil or military, holding 
 
 a commission under the United States, is authorized to administer and certify 
 
 the oath prescribed by the preceding section. — (8 June, 1872, c. 335, s. 15, 
 
 v. 17, p. 287; 5 2Iar., 1874, c. 46, v, 18, p. 19.) 
 
 forbidden by the laws in relation to the estab- 
 lishment of post-offices and post-roads within 
 the United States; and that I ■will honestly 
 and truly account for and pay over any money 
 belonging to the said United States which may 
 come into my possession or control; and I akso 
 further swear (or affirm) that I 'wdll support the 
 Constitution of the United States; so help me 
 God.' And this oath or affirmation may be 
 taken before any officer civil or mihtary hold- 
 ing a commission under the United States, and 
 such officer is hereby authorized to administer 
 and certify such oath or affirmation." 
 
 This act of March 5, 1874, is amendatory of 
 sections 391 and 392, in so far as said act varies 
 from those sections, this being provided for by 
 section 5601, Revised Statutes. Also, by act of 
 March 2, 1877 (19 Stat., 268), as amended by 
 actof March 9, 1878 (20 Stat. , 27), it was provided 
 that the second edition of the Revised Statutes 
 shall "not control, in case of any discrepancy, 
 the effect of any original act as passed by Con- 
 gress since the first day of December, eighteen 
 hundred and seventy-three." 
 
 As to persons in the naval service authorized to 
 administer oaths, see section 183, Revised 
 Statutes, and note thereto. 
 Naval Instructions, 1913, article 5401 (4), pro- 
 vides that the oath administered to navy 
 mail clerks and assistant navy mail clerks 
 shall be taken and subscribed "before a 
 magistrate or commissioned officer of the 
 Navy." 
 Sections 391 and 392, as printed above, 
 are in the same lansruage as these sections appear 
 in the second edition of the ReWsed Statutes. 
 However, by act of March 5, 1874 (18 Stat., 19), 
 it was provided as follows: "That before en- 
 tering upon the duties, and before they shall 
 receive any salary, the Postmaster General, 
 and all persons employed in the postal ser^dce, 
 shall respectively take and subscribe before 
 some magistrate or other competent officer 
 authorized to administer oaths by the laws of 
 the United States, or of any State or Territory, 
 the following oath or affirmation: 'I, A. 13. 
 do solemnly swear (or affirm, as the case may 
 be,) that I will faithfully perform all the duties 
 required of me and abstain from everything 
 
 328 
 
Post-Office Department. 
 
 PL 2. RE VISED S TA T UTES. 
 
 Sec. 398. 
 
 Sec. 396. [Duties of Postmaster-General.] It shall be the duty of the 
 Postmaster-General : 
 
 Fu^t. To establish and discontinue post-offices. 
 
 Second. To instruct all persons in the postal service with reference to their 
 duties. 
 
 Thu'd. To decide on the forms of all official papers. 
 
 Fourth. To prescribe the manner of keeping and stating accounts. 
 
 Fifth. To enforce the prompt rendition of returns relative to accounts. 
 
 Sixth. To control, according to law, and subject to the settlement of the 
 Sixth Auditor, aU expenses incident to the service of the Department. 
 
 Seventh. To superintend the disposal of the moneys of the Department. 
 
 Eighth. To direct the manner in which balances shall be paid over; issue 
 warrants to cover money into the Treasury; and to pay out the same. 
 
 Nmth. To superintend generally the business of the department, and 
 execute all laws relative to the postal service. [See sees. 3660-3665, 3668, 
 3669.]— (8 June, 1872, c. 335, s. 6, v. 17, p. 285; 3 Mar., 1877, c. 103, s. 2, 
 V. 19, p. 335; Locke v. U. S. 3 Mas., 446.) 
 
 The title of the "Sixth Auditor" was 
 
 chajiged to "Auditor for the Post Office Depart- 
 ment," by act of July 31, 1894, section 3 (28 
 Stat., 205). 
 
 Navy mail clerks and assistant Navy mail 
 clerks are to perform such postal duties as may 
 
 be authorized by the Postmaster-General, and 
 to give bond in such penal sum as the Post- 
 master-General may prescribe. (Act May 27, 
 1908, 34 Stat., 417, as amended bv act Aug. 24, 
 1912, sees. 3 and 11, 37 Stat., 554,' 560.) 
 
 Sec. 398. [Postal arrangements with foreign countries.] For the purpose 
 of making better postal arrangements with foreign countries, or to counteract 
 their adverse measures affecting our postal mtercourse with them, the Post- 
 master-General, by and with the advice and consent of the President, may 
 negotiate and conclude postal treaties or conventions, and may reduce or 
 increase the rates of postage on mail-matter conveyed between the United 
 
 (8 June, 1872, c. 335, s. 167, v. 17, p. 304.) 
 
 label may also be dispatched in the same man- 
 ner to Canada, Cuba, Mexico, the Republic of 
 Panama, and to the city of Shanghai, China." 
 (Sec. 518, Postal Laws and Regulations, 1913; 
 see also file 3980-1185, Jan. 15, 1916.) 
 
 Newfoundland is not a part of Canada, but a 
 separate province of the British Empire; and 
 official letters to Newfoundland are required to 
 be prepaid. (File 7538-176, Aug. 2, 1915.) 
 
 See section 388, Revised Statutes, and laws 
 noted thereunder. 
 
 States and foreign countries 
 
 Articles 25 and 26 of the Universal Postal Con- 
 vection, concerning the handling of closed 
 mails to and from vessels of the Navy, are 
 published in Naval Instructions, 1913, 
 article 5442. 
 
 Customs regulations relating to mails are pub- 
 lished in articles 5421 and 5423, Naval 
 instructions, 1913. 
 Under the Universal Postal Convention 
 
 "official correspondence which is admissible to 
 
 the domestic mails under penalty envelope or 
 
 329 
 
TITLE X. 
 THE DEPARTMENT OF THE NAVY. 
 
 Sec. Sec. 
 
 415. Establishment of the Department of the 426. 
 
 Navy. 427. 
 
 416. Clerks and employees. 
 
 417. Duties of the Secretary of the Navy. 428. 
 
 418. Department property, books, and records. 429. 
 
 419. Establishment of bureaus and distribution 
 
 of business. 430. 
 
 420. Orders considered as emanating from 431. 
 
 Secretary. 432. 
 
 421. Chiefs of bureaus. 433. 
 
 422. Bureaus of Yards and Docks, Equipment, 
 
 Navigation, and Ordnance. 434. 
 
 423. Bureau of Construction and Repair. 435. 
 
 424. Bureau of Steam Engineering. 436. 
 
 425. Bureau of Supplies and Accounts. 
 
 Sec. 416. [Establishment of the Department of the Navy.] There shall be 
 at the seat of Government an Executive Department, to be known as the 
 Department of the Navy, and a Secretary of the Navy, who shall be the head 
 thereof.— (30 Apr., 1798, c. 35, s. 1, v. 1, p. 553.) 
 
 Bureau of Medicine and Surgery. 
 
 Use of engraved plates of Wilkes's Ex- 
 pedition. 
 
 Collection of enemies' flags. 
 
 Reports to be made by Secretary of the 
 Navy. 
 
 Estimates for expenses. 
 
 Hydrographic office. 
 
 Maps, charts, etc. 
 
 Money received from sale of maps, charts, 
 etc. 
 
 Naval Observatory. 
 
 Meridans. 
 
 Nautical Almanac. 
 
 As to "origin and grswth of executive depart- 
 ments," see note to section 158, Revised 
 Statutes. 
 For "provisions applicable to all the executive 
 departments," see Title IV, sections 
 158-198, Revised Statutes. 
 
 The permanent "seat of Govemment" 
 is the District of Columbia (sec. 1795, R. S.). 
 "All offices attached to the seat of Government 
 shall be exercised in the District of Columbia, 
 and not elsewhere, except as otherwise ex- 
 pressly provided by law" (sec. 1796, R. S.). 
 In case of a contagious or epidemic disease at 
 the seat of Government, the President is author- 
 ized to remove the public ofiices therefrom. 
 (Sec. 4798, R. S.; see also sees. 34, 1776, 4797, 
 and 4799, R. S.) 
 
 The term "executive department" refers 
 only to what may be called the department 
 proper located at Washington, and does not 
 include those adjuncts of a department en- 
 gaged wholly in field service. (4 Comp. Dec, 
 551; see also 5 Comp. Dec, 667; 7 Comp. Dec, 
 126.) 
 
 The several executive departments are by 
 law established at the seat of Government; 
 they have no existence elsewhere. Only those 
 bureaus and offices can be deemed bureaus and 
 offices in any of these departments which are 
 constituted such by law of its organization. 
 The department, with its bureaus or offices, is 
 in the contemplation of the law an establish- 
 ment distinct from the branches of the public 
 service and the offices thereof which are under 
 its supervision. (15 Op. Atty. Gen., 262, 267: 
 26 Op. Atty. Gen., 254.) 
 
 The Marine Corps headquarters is a part of 
 the Naval Establishment, but it is not a part 
 of the Navy Department as established at the 
 seat of Government; it is under the super- 
 vision of the executive department, but that 
 relation to the department is not the same as 
 being a part of it. (11 Comp. Dec, 558; file 
 4600, Apr. 10, 1906; file 21686, Apr. 11, 1906.) 
 
 A clerk in a navy yard is not a clerk in an 
 executive department, although the navy yard 
 is under the supervision of one of the executive 
 departments. (26 Op. Atty. Gen., 254.) 
 
 Employees of the navy yard and gun factory 
 in Washington are under the Navy Department, 
 but are not a part of an executive department. 
 (11 Comp. Dec, 97.) 
 
 For other cases, see note to section 159, 
 Revised Statutes. 
 
 State, War, and Navy Building. — The 
 Navy Department was to occupy such rooms 
 in the State, War, and Navy Building as were 
 assigned for its use by a joint committee of 
 Congress, pursuant to act of August 5, 1882, 
 section 6 (22 Stat., 256). Reapportionment at 
 any time of space in said bmlding was author- 
 ized by act of May 10, 1916 (39 Stat., 94). 
 
 Navy Department Annex. — Additional 
 quarters to be rented for the Navy Departroetut, 
 for a period not exceeding 10 years from July 1, 
 1913, at an annual rental of not exceecling 
 $30,000, %vere authorized to be contracted for by 
 theSecretaryof theNavybyactof March4, 1913 
 (37 Stat., 771). [Such additional quarters, 
 designated by law as the "Na^y Department 
 Annex, New York Avenue near Seventeenth 
 Street Northwest, ' ' were occupied by the Navy 
 
 54641°— 22- 
 
 -22 
 
 331 
 
Sec. 416. 
 
 PL 2. REVISED STATUTES. 
 
 Navy Department. 
 
 Department pursuant to the act cited, in lieu of 
 quarters formerly usetl aa an annex by the Navy 
 Department ana knomi as the "Mills Builci- 
 
 Temporary office buihiiiigs for use of the War 
 and Navy Departments in Henry Park were 
 authorized bv act of October 6, 1917 (39 Stat., 
 368) and in Potomac Park bv act of March 28, 
 1918 (40 Stat., 483). 
 
 A superintendent of the State, War, and 
 Navy Department Building, to be detailed 
 from the Engineer Corps of the Army or Navy, 
 was authorized by act of March 3, 1883 (22 Stat., 
 563); and his duties were extended to include 
 the "Na\'y Department Annex, or Mills Build- 
 ing/' by act May 22, 1908 (35 Stat., 218), and 
 to include temporary additional buildings by 
 act of March 28, 1918 (40 Stat., 482, 483). (See 
 notes to sees. 1390, 1413, and 1462, R. S.; and 
 see act Jime 4, 1918, 40 Stat., 598). 
 
 The Secretaries of State, War, and Navy 
 constitute a commission for the care and super- 
 vision of the State, War, and Navy Department 
 Building; the duties of the superintendent of 
 the building being discharged under their direc- 
 tion. (Act Mar. 3, 1883, 22 Stat., 553.) 
 
 Laws and regulations VTithin the District 
 of Columbia for protection of property and 
 preservation of peace and order were extended 
 to all public buildings and gtounds belonging 
 to the United States within the said district, by 
 act of July 29, 1892, section 15 (27 Stat., 
 325). 
 
 Disorderly and unlawful conduct in public 
 buildings within the District of Columbia, or 
 the injury of pipes, hydrants, etc., therein, is 
 punishable by fine of not more than $50. (Act 
 July 29, 1892, sec. 15, 27 Stat., 325.) 
 
 Pubhc buildings not to be closed as mark 
 of respect for deceased exofiicials (act Mar. 3, 
 1893, sec. 4, 27 Stat., 715); nor to be draped in 
 mourning (same act, sec. 3). 
 
 The Na\-y Department is required to be kept 
 open_ during stated hours for the transaction of 
 public business. (See sec. 162, R. S.) 
 
 Buildings rented. — Annual report to Con- 
 gress of buildings rented is required of heads of 
 departments by act of March 3, 1883 (22 Stat., 
 552) ; act of July 16, 1892 (27 Stat. , 199) ; and act 
 of May 1, 1913, section 3 (38 Stat., 3). 
 
 Contracts for the renting of buildings in Wash- 
 ington are prohibited in the absence of .specific 
 authority (Act Mar. 3, 1877, 19 Stat., 370). 
 
 "Whenever buildings are rented for public 
 use in the District of Columbia, the executive 
 departments are authorized, whenever it shall 
 be advantageous to the public interest, to rent 
 others in their stead: Provided, That no increase 
 in the number of buildings now in use, nor in 
 the amounts paid for rent, sliall result there- 
 from." (Act Aug. 5, 1882, 22 Stat., 241.) 
 
 Heads of departments are authorized to con- 
 tract for the lease of modern fireproof storage 
 accommodations in the District of Columbia 
 payable from appropriations for rent of build- 
 ings for their departments. (Act Mar. 2, 1913, 
 37 Stat., 718.) 
 
 The Department of the Navy was orig- 
 inally established by act of April 30, 1798 (1 
 Stat., 553). Prior to that date its duties were 
 discharged bv the Secretary of War. (See note 
 to sec. 158, R. S.) 
 
 The designation, "Navy Department," in- 
 stead of "Department of the Navy," is now 
 exclusively used by Congress in legislation 
 relating to this department. 
 
 The Department oi the Navy is sixth in order 
 of precedence among the executive depart- 
 ments. (Sec. 158, 11. S.) 
 
 Not a naval station. — The Navy Depart- 
 ment, Washington, D. C, is not a naval station 
 within the meaning of section 1386, Revised 
 Statutes [now repealed] allowing clerks to 
 "paymasters at stations." The word "station" 
 as used in that section means "naval station." 
 (13Comp. Dec, 693.) 
 
 Secretary of the Navy. — The compensa- 
 tion of the Secretary of the Navy is fixed at 
 $12,000 a year, by act of February 26, 1907 (34 
 Stat., 993). (See note to section 160, R. S.) 
 
 The statutes do not provide by whom the 
 Secretary of the Navy is to be appointed. In 
 the absence of such a provision, his appoint- 
 ment is vested in the President, by and with 
 the advice and consent of the Senate. (See 
 note to Constitution, Art. II, sec. 2, clause 2, 
 In the cases of the Postmastei General, the Sec- 
 retary of Agriculture, the Secretary of Com- 
 merce, and the Secretary of Labor, it is specifi- 
 cally provided by statute that they are to be 
 appointed by the President, by and with the 
 advice and consent of the Senate. See sec. 388, 
 R. S., and acts of Feb. 9, 1889, 25 Stat., 659; 
 Feb. 14, 1903, 32 Stat., 825; and Mar. 4, 1913, 
 37 Stat., 736.) 
 
 The Secretary of the Navy is required to take 
 the oath of office prescribed by section 1757, 
 Revised Statutes, which applies to all persona 
 appointed to any office of honor or profit in the 
 civil, military, or naval service. (See act May 
 13, 1884, sec. 2, 23 Stat.. 22.) 
 
 The term for which the Secretary of the Navy 
 is appointed is not fixed by statute. [The law 
 establishing the Department of Commerce and 
 Labor (now Department of Commerce) provided 
 for the appointment of a head of that depart- 
 ment, " whose term and tenure of office shall be 
 like that of the heads of the other executive de- 
 partments." (Act Feb. 14, 1903, 32 Stat., 825). 
 A similar provision was embodied in the act 
 creating the Department of Labor. (Act Mar. 
 4, 1913, 37 Stat., 736.) Section 388, Revised 
 Statutes, provided that the term of the Post- 
 master General shall be for and during the term 
 of the President by whom appointed, and one 
 month thereafter, unless sooner removed.] 
 
 The Secretary of the Navy is removable by the 
 President: " When the Navy Department was es- 
 tablished in the year 1798 (1 Stat. , 553), pro vision 
 is made for the charge and custody of the books, 
 records, and documents of the department in 
 case of vacancy in the office of Secretary by re- 
 moval or otherwise. It is not here said by re- 
 moval by the President, as is done with respect 
 to the heads of the other departments; and yet 
 there can be no doubt that he holds his office by 
 the same tenure as the other Secretaries and is 
 removable by the President. The change of 
 
 Ehraseology arose, probably, from its having 
 ecome the settled and well understood con- 
 struction of the Constitution that the power of 
 removal was vested in the President alone in 
 such cases, although the appointment of the 
 officer was by the President and Senate." 
 
 332 
 
Navy Department. 
 
 PL f. REVISED STATUTES. 
 
 Sec. 415. 
 
 (Matter of Hennen, 13 Pet., 259. See also note 
 to Constitution, Art. II, sec. 2, clause 2.) 
 
 In case of the death, resignation, absence, or 
 sickness of the Secretary of the Navy, unless 
 otherwise directed by the President, the duties 
 of the office devolve upon the Assistant Secre- 
 tary of the Navy (sec. 177, R. S.). During the 
 temporary absence of the Secretary and the As- 
 sistant Secretary of the Navy, the Chief of Naval 
 Operations shall be next in succession to act as 
 Secretary of the Navy. (Act Mar. 3, 1915, 38 
 Stat., 929, amended by act Aug.29, 1916, 39 Stat., 
 558.) The President, however, maydirectsome 
 other officer in the Navy Department, or in some 
 other department, to perform the duties of the 
 Secretary of the Navy (sec. 179, R. S.). But 
 neither the Assistant Secretary of the Navy 
 nor any other officer designated by the Presi- 
 dent, may perform the duties of the Secretary 
 of the Navy, in case of the latter 's death or res- 
 ignation, for a longer period than 30 days (sec. 
 180, R. S.); except where the vacancy hap- 
 pens during a recess of the Senate (sec. 181, 
 R. S.). The officer temporarily performing 
 the duties of the Secretary of the Navy is not 
 thereby entitled to additional compensation 
 (sec. 182, R. S.). 
 
 During the temporary absence of the Secre- 
 tary and Assistant Secretary of the Navy and 
 the Chief of Naval Operations the duties of 
 the Secretary of the Navy, by direction of the 
 President, are to be performed by the following 
 designated persons, in the order named: The 
 Chief of the Bureau of Navigation; in his 
 absence, the Chief of the Bureau of Ordnance; 
 and in the absence of those two, the Chief of the 
 Bureau of Engineering. (File 1159-765, Bu. 
 Nav., July 2, 1915; Navy Regs., 1920, art. 
 392, as amended; see also file 22724-40, Apr. 
 24, 1919.) 
 
 Officers of the Navy on duty in the Navy 
 Department as aids or advisers of the Secretary 
 of the Navy, but who do not hold any office in 
 the department to which they have been ap- 
 pointed pursuant to law, can not be legally 
 designated by the President to act as Secre- 
 tary of the Navy during the latter's absence. 
 Wliile these aids, as rear admirals, captains, or 
 commanders, are officers in the public service 
 of the Government, they are not officers in the 
 department eligible for these temporary ap- 
 pointments, and do not come within the class 
 designated in section 179, Revised Statutes. 
 They perform no duties imposed upon them by 
 law; they hold no office in the department cre- 
 ated by act of Congress; they are agents ap- 
 pointed by the Secretary, and removable by 
 him at Ms pleasure, to procure information 
 needed to aid in the performance of his own 
 official duties. There is no more authority to 
 authorize them to perform the duties of the Sec- 
 retary of the Navy than there is to authorize any 
 officer of the Navy not connected directly with 
 the business of the department. (28 Op. Atty. 
 Gen._, 95.) [The "aids" referred to in this 
 opinion, namely, "Aid for Operations," "Aid 
 for Personnel," "Aid for Material," and "Aid 
 for Inspections," were authorized by Changes 
 in Navy Regulations No. 6, of November 18, 
 1909, revoked by Changes in Navy Regulations 
 No. 5, July 15, 1915 by which latter Changes 
 their duties were transferred to other officers.] 
 
 Officers of the Navy are appointed, by pro- 
 vision of law, to perform duties in the Navy 
 Department which constitute them officers in 
 the department, as, for example, the chiefs of 
 bureaus provided for by section 421, Revised 
 Statutes. These bureau chiefs are officers hold- 
 ing offices in the Navy Department which have 
 been created by law, and are witliin the class 
 designated in section 179, Revised Statutes, as 
 eligible for appointment to temporary vacan- 
 cies in the ofhce of the Secretary of the Navy. 
 (28 Op. Atty. Gen., 95.) 
 
 For other decisions concerning officers tem- 
 porarily acting as Secretary of the Navy, see 
 notes to sections 177-182 and 868, Revised 
 Statutes. 
 
 "It is very_ clear that the office of Secretary 
 of the Navy is a civil office. Congress has not 
 attempted to confine the appointing power to 
 any class or profession in choosing the incum- 
 bent for that position." (18 Op. Atty. Gen., 
 176. See also U. S. v. Burns, 12 Wall., 246, 
 holding that the Secretaiy of War "is not in the 
 military service," but, "on the contrary, is a 
 civil officer"; and see 1 Op. Atty. Gen., 457, 
 holding that the Secretary of War is not required 
 to perform duties in the field, does not compose 
 any part of the Army, and has no service to per- 
 form that may not be done at the seat of govern- 
 ment.) 
 
 The Secretary of the Navy is sixth in or- 
 der of succession to the powers and duties of 
 the Presidency, in case of the removal, death, 
 resignation, or inability of both the President 
 and Vice President (act of Jan. 19, 1886, 24 
 Stat., 1); he is ex officio a member of the Smith- 
 sonian Institution (sec. 5579, R. S., as amend- 
 ed); is a member of the Council of National 
 Defense (act Aug. 29, 1916, 39 Stat., 649), and 
 of the Commission for Memorial to John Erics- 
 son (act Aug. 31, 1916,39 Stat., 671); is to ex- 
 ercise control of the Aircraft Board (act Oct. 1, 
 1917, 40 Stat., 296); is privileged to draw books 
 from the Library of Congress (sec. 94, R. S.); 
 and is entitled to a set of the Supreme Court 
 Reports for official use, to be preserved and 
 turned over to his successor in office (sec. 227, 
 Judicial Code, act Mar. 3, 1911, 36 Stat., 1154.) 
 
 As to duties of the Secretary of the Navy, see 
 sections 417 and 418, Revised Statutes, and 
 notes thereto. 
 
 For decisions relating generally to heads of 
 departments, see notes to Constitution, Article 
 II, section 2, clause 1; Article II, section 1, 
 clause 1; and section 158, Revised Statutes. 
 
 Assistant Secretary of the Navy. — The 
 office of "Assistant Secretary of the Navy" was 
 created by act of July 31, 1861 (12 Stat., 282), 
 the duties thereof to be such as were prescribed 
 by the Secretary of the Navy or required by 
 law. An additional Assistant Secretary of the 
 Navy was authorized, to serve for a period of 
 six months, by act of May 26, 1866 (14 Stat., 
 54). The office of Assistant Secretaiy of the 
 Navy was abolished by act of March 3, 1869 (15 
 Stat., 296). An Assistant Secretary of the Navy 
 was again authorized by act of August 5, 1882(22 
 Stat. ,243) , wliich was repealed by act of March 3, 
 1883 (22 Stat., 550) [no a]>pointment ha\ang in 
 the meantime been made]. 
 
 The present law is contained in the act of 
 July 11, 1890 (26 Stat., 254), which provides for 
 
 333 
 
Sec. 416. 
 
 Pi. 2. REVISED STATUTES. 
 
 Navy Department. 
 
 '■;iii Assistant Secretar>- of the Navy, to be 
 appointed from civil liie by the President, by 
 anil with the advice and consent of the Senate" ; 
 and the act of Manh 3, 18!)1. (2G Stat., 934), 
 ■\vliich provides that the Assistant Secretary of 
 the Navy shall ''i)erforui such duties as may be 
 prescribed by the Secretary of the Navy or 
 required by law." 
 
 It ha3 been found in regard to the heads of 
 depart nients that it is impossible for a single 
 individual to perform in person all the duties 
 imposed on liim by his ollice. Hence, statutes 
 have been made creating the olhce of assistant 
 secretaries for all the heads of departments. 
 It would be a very sinsjular doctrine, and sub- 
 versive of the purposes for which these latter 
 oliices were createcl, if their acts are to be held 
 of no force until ratified by the principal Secre- 
 tary or head of the department. It was to re- 
 lieve the overburdened principal of some part 
 of those duties that the office of assistant was 
 created. (Parish v. U. S., 100 U. S., 504; 
 McCollumr. U. S., 17 Ct. Cls., 101.) 
 
 The duties of these assistants are generally 
 not specifically defined by law, but are left to 
 the direction and regulation of superior officers. 
 Such .assistants are supposed to have the confi- 
 dence of those immediately above them and 
 to be oflicially engaged in carrying out the will 
 of their principals iu the details of the work of 
 the department in which they are employed. 
 When their acts, decisions, or directions are 
 reduced to writing, signed by them in their 
 official capacity, filed or recorded among the 
 archives of the department, and do not ajipear 
 to have been revoked, annulled, or modified 
 by the head of the department, they must be 
 held, in the absence of fraud, mistake, or irreg- 
 ularity, to have been done within the scope of 
 the authority of the assistant, and to be as 
 binding on the Government as though expressly 
 ordered by the superior. Especially will this 
 be held when copies of such written documents 
 are sent out by the head of the department in 
 which they are found, without objection on his 
 part to their having been made in the due and 
 regular course of business under his control. 
 (McCollum V. U. S., 17 Ct. Cls., 101.) 
 
 A statute (sec. 245, R. S.) providing that the 
 Assistant Secretary of a department shall per- 
 form certain specified duties, and such other 
 duties as may be prescribed by the Secretary 
 or by law, does not confine the powers of the 
 assistant to duties of a like nature with those 
 
 enumerated, especially when read in connec- 
 tion witli sections 101 and 177, Revised Stat- 
 utes, which impose more enlarged duties in 
 certain contingencies. (Shillito Co. v. Mc- 
 Clung, 51 Fed. Rep., 8G8.) 
 
 Where the law provides that the Assistant 
 Secretary in a department is to perform such 
 duties "as shall be prescribed by the Secretary, 
 or may be required by law," it empowers the 
 Secretary to make the assistant, as it were, his 
 deputy m all things. So long as the powers 
 delegated to the assistant by his su))erior remain 
 Tinrevoked, the authority of the former is coor- 
 dinate and concurrent with tliat of the latter. 
 As to the authority so prescribed tlie Assistant 
 Secretary has the full power of the Secretary 
 himself. Accordingly, the Assistant Secretary, 
 while in the exercise of authority prescribed 
 for him by the Secretary, is authorized to give 
 orders for purchases payable from the contin- 
 gent fund and to approve vouchers therefor, 
 although under section 3()83, Revised Statutes, 
 heads of departments are alone authorized to 
 give such orders and approve such vouchers. 
 (18 Op. Atty. Gen., 432, modifying 18 Op. 
 Atty. Gen., 424.) 
 
 So long as the powers delegated to the Assist- 
 ant Secretary by his superior remain unre- 
 voked, the authority of the former is coordinate 
 and concurrent with that of the latter. When 
 the assistant acts at a time the Secretary is not 
 absent or sick, under a regulation made by the 
 Secretary prescribing his powers and duties, he 
 should sign with his own proper oflicial desig- 
 nation. When the Secretary is absent or sick, 
 if the assistant is in charge of the department 
 in pursuance of sections 177 or 179, Revised 
 Statutes, he should sign as Acting Secretary. 
 (19 Op. Atty. Gen., 133.) 
 
 As to legal proceedings which may be insti- 
 tuted in the case of an officer who signs as "Act- 
 ing Secretary" while the Secretary is at the 
 department, see note to section 868, Re\Tsed 
 Statutes. 
 
 An officer temporarily performing the duties 
 of his superior in accordance \vith law is au- 
 thorized to serve as member of a board which 
 by statute included his superior in its member- 
 ship. (20 Op. Atty. Gen., 483; see also file 
 22724--i0, Apr. 24, 1919.) 
 
 For other decisions as to authority of Assist- 
 ant Secretary, see note to section 177, Revised 
 Statutes. 
 
 Sec. 416. [Clerks and Employees. Repealed.] 
 
 This section provided as follows: 
 "Skc. 410. Theie shall be in the Department 
 of the Navy: 
 
 "One chief clerk, at a salary of two thousand 
 five hundred dollars a year, so long as there is 
 no A.ssistant Secretary of the Navy, and at a 
 salary of two thousand two hundred dollars a 
 
 Sear when there is an Assistant Secretary of the 
 avy. 
 
 "One disbursing clerk. 
 
 "One superintendent of the Navy Depart- 
 ment building, at a salary of two hundred and 
 fifty dollars a year. 
 
 "In the Bureau of Yards and Docks: 
 "One civil engineer, at a salary of three thou- 
 sand dollars a year. 
 
 "One chief clerk, at a salary of one thousand 
 eight hundred dollars a year. 
 
 "One draughtsman, at a salary of one thou- 
 sand eight hundred dollars a year. 
 
 "In the Bureau of Equipment and Re- 
 cruiting: 
 
 "One chief clerk, at a salary of one thousand 
 eight hundred dollars a year. 
 
 "In the Bureau of Construction and Repair: 
 
 "One chief clerk, at a salary of one thousand 
 eight hundred dollars a year. 
 
 "One draughtsman, at a salary of one thou- 
 sand eight hundred dollars a year. 
 
 "In the Bureau of Steam Engineering: 
 
 "One chief clerk, at a salary of one thousand 
 eight hundred dollars a year. 
 
 334 
 
Navy Department. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 416. 
 
 "Oue draughtsman, at a salary of one thou- 
 sand eight hundred dollars a year. 
 
 "One assistant draughtsman, at a salary of 
 one thousand two hundred dollars a year. 
 
 "In the Biu-eau of Navigation: 
 
 "One chief clerk, at a salary of one thousand 
 eight hundred dollars a year. 
 
 "In the Bureau of Ordnance: 
 
 "One chief clerk, at a salary of one thousand 
 eight hundred dollars a year. 
 
 "One draughtsman, at a salary of one thou- 
 sand eight hundred dollars a year. 
 
 "In the Bureau of Provisions and Clothing: 
 
 "One chief clerk, at a salary of one thousand 
 eight hundred dollars a year. 
 
 "In the Bureau of Medicine and Surgery: 
 
 "One chief clerk, at a salary of one thousand 
 eight hundred dollars a year." 5 July, 1862, 
 c. 134, V. 12, p. 510; 2 .July. 1864, c. 219, s. 4, 
 V. 13, p. 373; 23 Julv, 1866, c. 208, s. 8, v. 14, 
 p. 207; 3 Mar., 1871,' c. 113, s. 3, v. 16, p. 494; 
 3 Mar., 1873, c. 226, s. 1, v. 17, pp. 501, 502. 
 
 It is superseded and repealed by the 
 following laws: 
 
 Act August 5, 1882, section 4 (22 Stat., 255): 
 "That no civil officer, clerk, draughtsman, 
 cop\dst, messenger, assistant messenger, me- 
 chanic, watchman, laborer, or other employee 
 shall after the first day of October next be em- 
 ployed in any of the executive departments, or 
 subordinate bureaus or offices thereof at the seat 
 of government, except only at such rates and in 
 such numbers, respectively, as may Ije specific- 
 ally appropriated for by Congress for such cler- 
 ical and other personal services for each fiscal 
 year; * * * and after the first day of Oc- 
 tober next * * * all laws and parts of laws 
 authorizing the employment of officers, clerks, 
 draughtsmen, copj-ists, messengers, assistant 
 messengers, mechanics, w-atchmen, laborers, or 
 other employees at a different rate of pay or in 
 excess of the numbers authorized by appropria- 
 tions made by Congress, be and they are hereby, 
 repealed * * *." 
 
 Act of August 23. ] 912, section 5 (37 Stat. , 414) : 
 ' ' Any person violating section four of the legis- 
 lative, executive, and judicial appropriation 
 Act approved August fifth, eighteen hundred 
 and eighty-two (Statutes at Large, volume 
 twenty-two, page two himdred and fifty-five), 
 shall be summarily removed from office, and 
 may also upon conviction thereof be punished 
 by a fine of not more than one thousand dollars 
 or bv imprisonment for not more than one vear." 
 Act of July 16. 1914 (38 Stat., 509), making ap- 
 propriations for the legislative, executive, and 
 judicial expenses of the Government for the 
 fiscal year 1915: "That all laws or parts of laws 
 to the extent they are inconsistent with rates of 
 salaries or compensation appropriated by this 
 Act are repealed, and the rates of salaries or 
 compensation of officers or employees herein 
 appropriated shall constitute the rate of salary 
 or compensation of such officers or employees, 
 respectively, until otherwise fixed by annual 
 rate of appropriation or other law." 
 
 Act of March 4, 1915 (38 Stat., 1049, sec. 6), 
 
 maldng appropriations for the legislative, exec- 
 utive, and judicial expenses of the Government 
 for the fiscal year 1916: "The officers and em- 
 ployees of the United States whose salaries are 
 herein appropriated for are established and shall 
 
 continue from year to year to the extent they 
 shall be aj)pro])riatod for ]>y Congress." 
 
 Specific changes made hj existing law in 
 this section of the Re\ised Statutes are as fol- 
 lows: 
 
 The position of ■ ' superintendent of the Na\'>' 
 Department building, at a salary of $250 a year," 
 is aboli-shed, and an officer of the Army or Navy 
 is detailed as superintendent of the State, War, 
 and Na\'A' Department Building, pursuant to act 
 of March' 3, 1883 (22 Stat., 553 1, his duties being 
 performed under the supervision of a commis- 
 sion consisting of the Secretaries of State, War, 
 and Na\^ (.same act), and embracing the "Navy 
 Department Annex," pursuant to act of May 22, 
 1908 (35 Stat., 218 1, and subsequent appropria- 
 tions in the annual legislative, executive, and 
 judicial ajipropriation act. 
 
 The Bureau of Equipment and Recruiting 
 was designated as Biu^eau of Equipment in an- 
 nual appropi iation acts commencing with the 
 fiscal year 1892. By naval appropriation acts for 
 the fiscal years 1912, 1913, and 1914pro\-ision was 
 made for distribution of the duties, funds, and 
 employees of the Bureau of Equipment among 
 the other bureaus and offices of the Na\^' Depart- 
 ment, and by act of June 30, 1914 (38 Stat., 
 408), the Bureau of Equipment was abolished. 
 The Bureau of Provisions and Clothing was 
 designated as Bureau of Supplies and Accounts 
 by act of July 19, 1892 (27 Stat., 243, 245). 
 
 The Bureau of Steam Engineering was desig- 
 nated as the Bnreau of Engineering bv act of 
 June 4, 1920 (41 Stat., 828)_. 
 
 The position of civil engineer in the Bureau 
 of Yards and Docks, at S3, 000 per annum, was 
 appropriated for in the legislative, executive, 
 and judicial appropriation acts, including the 
 act of March 3, 1873 (17 Stat., 501), but was 
 omitted from the legislative, executive, and 
 judicial appropriation act of June 20, 1874 (18 
 Stat., 102), and subsequent years. (See sec. 
 1413, R. S., and note thereto, concerning Civil 
 Engineer Corps of the Navy.) 
 
 The chief clerk in the office of the Secretary 
 of the Navy receives an annual salarj^ of 83,000, 
 this increased compensation being first pro- 
 vided for by act of March 3, 1901 (31 Stat., 992). 
 Prior to that act his salary was $2,500 a year, 
 although an Assistant Secretary of the Navy 
 had been authorized, without interruption, 
 since the act of July 11, 1890 (26 Stat., 254). 
 Thus his salarj' was not reduced to $2,200 a 
 year "when there is an Assistant Secretarj- of 
 the Na\'3\ " as proA-ided in this section. 
 
 The disbursing clerk in the Na\y Depart- 
 ment received an annual salaiy of $2,250 bv 
 the act of March 3, 1883 (22 Stat!, 553) and sub- 
 sequent acts, including the act of May 29, 1920 
 (41 Stat., 663). Specific provision for salary 
 of a disbursing clerk in the Navy Department 
 was omitted in the appropriation act of March 
 3, 1921 (41 Stat., 1282), the position of " dis- 
 bursing officer," at $3,()00 per annum having in 
 the meantime been created from lump sum 
 appropriations. (See estimates of appropria- 
 tions, 1922, p. 102.) As to appointment and 
 compensation of disbursing clerks in the several 
 departments, see section 176, Re\ised Statutes, 
 and note thereto. 
 
 The chief clerks in the Bureaus of Yards 
 and Docks, Construction and Repair, Engi- 
 
 335 
 
Sec. 416. 
 
 Pt. 2. REVISED STATUTES. 
 
 Navy Department. 
 
 neering, Navigation, Ordnance, and Medicine 
 and yurgerv' nave received an annual salary 
 of i?2,li50 since the act of March 4, 1913 (37 Stat., 
 7(18, 771). 
 
 The chief clerk in the Bureau of Supplies and 
 Accounts was designated as "'civilian assistant" 
 and his compensation increased to $2,500 by 
 act of Februarj- 25, liio:? (32 Stat., 890). 
 
 An ''appointment clerk."' at $1,800 per an- 
 num, ^va.s provided for in the oflice of the Sec- 
 retary, Navy Department, hy act of May 2S, 1896 
 (29Stat., Iti4), which was amended by actof June 
 8, 1896 (29 Stat., 285), providing for a "clerk 
 in charge of civil employments and labor regu- 
 lations at navy yards, who shall also perform the 
 duties of appointment clerk of the Nav-y De- 
 partment,'' at $2,250 per annum. This latter 
 provision was repeated, with an immaterial 
 modilication in language, in the acts of Febru- 
 ary 19, 1897, and March 15, 1898, but has since 
 been omitted and is not now in force. An "ap- 
 pointment clerk," at $2,000 per annum was 
 appropriated for by act of May 10, 1916 (39 
 SUit., 94;, and following vears, until the act of 
 March 1, 1919, (40 Stat., 1241), which increased 
 the salary of the appointment clerk to $2,250. 
 
 The following additional positions are 
 specilically authorized in the Navy Depart- 
 ment, at annual salaries in excess of $1,800, by 
 the legislative, executive, and judicial appro- 
 priation act of March 3, 1921 (41 Stat., 1282): 
 
 Olhce of the Secretary: Private secretary to 
 Secretary, $2,500; clerk to Secretary, $2,250; 
 private secretary to Assistant Secretary, $2,400; 
 clerk to Assistant Secretary, $2,000; printing 
 clerk, $2,000. 
 
 Office of Solicitor: Solicitor, $4,000; law 
 clerks, one at $2,500, one at $2,400, one at $2,250, 
 and two at $2,000 each. 
 
 Office of Naval Records and Library: Chief 
 clerk, $2,000. 
 
 Office of Judge Advocate General: Attorneys, 
 two at $2,500 each; chief law clerk, $2,250; law 
 clerks, one at $2,200 and one at $2,000. 
 
 Office of Chief ot Naval Operations: Chief 
 clerk, $2,250. 
 
 Office of Director of Naval Communications, 
 one at $4,000, two at $3,000 each, one at $2,500, 
 and three at $1,900 each. 
 
 Bureau of Navigation: Clerks, one at $2,200, 
 two at $2,000 each. 
 
 Hydrographic Office: Hydrographic engi- 
 neer, $3,000; assistants, one at $2,200 and one 
 at $2,000; chief engraver, $2,000. 
 
 Naval Observatory: Astronomers, one at 
 $3,200 and one at $2,800; assistant astronomers, 
 one at $2,400 and one at $2,000. 
 
 Nautical Almanac Office: Assistants in pre- 
 paring for publication the American Ephemeris 
 and Nautical Almanac, one at $2,500 and one 
 at $2,000. 
 
 Bureau of Construction and Repair: Chief 
 of section, $2,000. 
 
 Bureau of Supplies and Accounts: Principal 
 clerk, $2,250; two chief bookkeepers, at $2,000 
 each. 
 
 The minor positions specifically authorized 
 in the A-arious bureaus and offices of the Navy 
 Department are set forth in detail in the annual 
 legislative, executive, and judicial appropria- 
 tion act. The same act. in addition, author- 
 izes the employment of draftsmen and other 
 
 technical ser\ ices in the Bureaus of Engineer- 
 ing, Construction and Repair, Ordnance, and 
 Yards and Docks, to be paid for from the annual 
 appropriations made by the naval appropria- 
 tion act for ''Engineering,'' "Construction and 
 re})air,'' "Ordnance and ordnance stores," and 
 Aarious appropriations and allotments under 
 the Bureau of Yards and Docks. The number 
 of employees so authorized from "lump-sum" 
 appropriations is not specified, but it is pro- 
 vided that the rates of compensation to be paid 
 such employees in the Bureaus of Engi- 
 neering, Construction and Repair, and Ord- 
 nance shall not exceed those paid under similar 
 authorization j)rior to January 1. 1920. The 
 total amounts to be ])aid for this purpose are 
 lixed at a delinite sum each year, the amounts 
 authorized for the fiscal year 1922 by the legis- 
 lative, executive, and judicial appropriation 
 actof March 3, 1921 (41 Stat., 1285, 1286), being 
 as follows: Bureau of Engineering, $190,000; 
 Bureau of Construction and Repair, $275,000; 
 Btu'eau of Ordnance, $70,000; Bureau of Yards 
 and Docks, $200,000. A statement of the per- 
 sons employed from such lump-sum appropria- 
 tions, their duties, and the compensation paid 
 to each is required by a provision contained in 
 the authorization therefor to "be made to Con- 
 gress each year in the annual estimates." (See 
 also Act Aug. 29, 1916, 39 Stat., 558.) 
 
 Additional civil force in the Navy Depart- 
 ment ' 'on accomit of the existing emergency, ' ' 
 was authorized in various appropriation acts, 
 commencing Avith the act of June 15, 1917 (40 
 Stat., 202). 
 
 Lump-sum appropriations are not avail- 
 able for payment of personal services at a rate 
 of compensation in excess of that paid for the 
 same or similar services during the preceding 
 fiscal year; and no person employed at a specific 
 salary can be transferred and paid from a lump- 
 simi appropriation a rate of compensation 
 greater than such specific salary. These 
 restrictions are not applica1)le to mechanics, 
 artisans, their helpers and assistants, laborers, 
 or any other employees whose duties are of 
 similar character and required in carrying on 
 the various manufacturing or constructing 
 operations of the Govermnent. (Act Aug. 26, 
 1912, sec. 7, 37 Stat.. 626, amended by act Mar. 
 4, 1913, sec. 4, 37 Stat., 790; see 20 Comp. Dec, 
 128; 20 Comp. Dec, 131: 20 Comp. Dec, 10; 19 
 Comp. Dec, 248. See also acts Oct. 6, 1917, 40 
 Stat., 383 and Mar. 28, 1918, 40 Stat., 498.) 
 
 Restrictions on employment of clerical 
 services. — It is provided in the annual legis- 
 lative, executive, and judicial appropriation 
 act that "no part of any appropriations made 
 for the naval service shall be expended for any 
 of the purposes, including freight, herein pro- 
 vided for on account of the Navy Department 
 in the District of Columbia, except for personal 
 services in certain bureaus, as herein expressly 
 authorized" (namely, the services of draftsmen 
 and other technical services, as above men- 
 tioned, in the Bureaus of Engineering, Con- 
 struction and Repair, Ordnance, and Y'ards and 
 Docks). See, for example, act of March 3. 1921 
 (41 Stat., 1287). 
 
 It is also provided by the annual legislative, 
 executive, and judicial appropriation act that 
 personal services or other expenditures are not 
 
 336 
 
Navy Department. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 416. 
 
 to be authorized under the Hydrographic Office 
 in the District of Columbia, except as appro- 
 priated for under the Navy Department in that 
 act, or under appropriations for the public 
 printing and binding. See, for example, act of 
 March 3, 1921 (41 Slat., 1285). 
 
 It is also provided by the annual naval appro- 
 priation act ' ' that no part of any sum appropri- 
 ated by this act shall be used for any expense 
 of the Na^-y Department at Washington, Dis- 
 trict of Columbia, unless specific authority is 
 given by law for such expenditure." See, for 
 example, act of June 4, 1920 (40 Stat., 833). 
 
 It is not lawful for the Secretary of the Na\'y 
 to employ in the Navy Department at Wash- 
 ington, D. C, and pay out of appropriations 
 for new ships, any civilian expert aids, addi- 
 tional draftsmen, writers, copyists, and model 
 makers, except as specifically authorized. 
 (Act Mar. 18, 1904, sec. 1, 33 Stat., 117.) 
 
 Civil employees paid from appropriations for 
 the Naval EstabUslunent or other branch of the 
 public service outside of the District of Co- 
 lumbia, can not be detailed for duty in any 
 division of any executive department in the 
 District of Colmnbia. (Act June 22, 1906, 
 sec. 6, 34 Stat., 449; similar provision is con- 
 tained in act Aug. 5, 1882, sec. 4, 22 Stat., 
 255.) [But Washington may be chosen as a 
 local headquarters by the "field force" of an 
 executive department, provided such force is 
 not used to augment the ' " departmental estab- 
 lishment" by engaging in departmental ac- 
 ti\ities (21 Comp. Dec, 709).] 
 
 Persons in the classified service at Washing- 
 ton, District of Columbia (except the Depart- 
 ment of Justice in certain cases), shall not be 
 detailed for service outside of the District of Co- 
 lumbia, except for or in connection ^vith work 
 pertaining directly to the service at the seat of 
 government of the Departmeut or other Gov- 
 ernment establishment from which the detail 
 is made. _ (Act Mar. 3, 1917, 39 Stat., 1121, 
 repeated in legislative, executive and judi- 
 cial appropriation acts for subsequent years.) 
 
 As to detail of enlisted men for duty in an 
 executive department, see statutes cited above 
 imder "Restrictions on employment of clerical 
 8er\ices," and see act of June 19, 1878, (20 Stat., 
 196), authorizing the employment of "not ex- 
 ceeding 10 enlisted men" in the office of the 
 Chief of Ordnance, War Department. See also 
 act of June 3, 1916 (39 Stat., 188, sec. 35), re- 
 garding employment of enlisted men in civil 
 occupations. 
 
 Officers of the Navy may be detailed for 
 duty in the Navy Department, but where 
 such an officer on the active list is appointed to 
 the office of draftsman in the Hydrographic Of- 
 fice he is not entitled to both salaries, although 
 he holds both offices. In such case he is enti- 
 tled to the larger salary when different salaries 
 are attached to the two offices. (Winchell v. 
 U. S., 28 Ct. Cls., 30; 5 Comp. Dec, 885. See 
 note to sec 431 R. S.; and see 19 Op. Atty. 
 Gen., 503; 28 Op. Atty. Gen 95.) 
 
 Not exceeding four naval officers may be de- 
 tailed as necessary to the Hydrographic Office 
 by the Secretary of the Navy. (Act Mar. 4, 
 1917, 39 Stat., 1172. See note to sec. 431, R. S.) 
 
 "The Secretary of the Navy is authorized 
 to detail such naval officers as may be neces- 
 
 sary to the Hydrographic Office". (Act July 1, 
 1918, 40 Stat., 708.) 
 
 An officer on the retired list of the Navy 
 may take the civil-service examination, and his 
 status on the retired list does not preclude him 
 from accepting a clerical position, assvmiing the 
 compensation of such position to be less than 
 $2,500 per annum, subject to possible recall to 
 active dutv. (File 4901-1904; 5650-1900; 
 4642-1903.) " 
 
 A retired officer of the Navy whose retired 
 pay amounts to $2,500 per annum is within the 
 prohibition of section 2 of the act of July 31, 
 1894 (28 Stat., 205), and is ineligible to hold 
 office as clerk of class 3 under the Ci\dl Service 
 Commission. (29 Op. Atty. Gen., 503.) 
 
 A retired officer can not hold an office in the 
 diplomatic or consular service . (Sec. 1440, R. S . ; 
 15 Op. Atty. Gen., 306; Badeau v. U. S., 130 
 U. S., 439.) 
 
 The emplojrment of retired enlisted men 
 of the Navy in ci\-il positions under the United 
 States is not contrarv to any Federal law or Navy 
 regulation. (File 7657-123, Dec. 29, 1911; file 
 7657-57.) 
 
 See "Provisions applicable to all the 
 executive departments," Title IV, sections 
 158-198, Revised Statutes, and particularly 
 sections 166-170 relating to appointment, com- 
 pensation, and distril:iution of clerks. 
 
 Civilian employees at navy yards. — For 
 laws applicable to, see sections 1542 to 1546, Re- 
 vised Statutes. 
 
 Appointments made by Secretary of the 
 Navy. — "No person shall be employed at a 
 per diem, monthly, or annual compensation 
 and paid from the appropriation for the legis- 
 lative, executive, and judicial expenses of the 
 Government to do any kind of clerical, draft- 
 ing, technical, messengers' or laborers' work, 
 except after a written appointment by the Sec- 
 retary of the Navy or with his approval in writ- 
 ing. Nor shall a ci\nlian be employed to per- 
 form work of any character in the bureaus and 
 offices of the department except by written 
 authority of the Secretary of the Navy." 
 (Naval Instructions, 1913, art. 52.) 
 
 Appointments to office under the United 
 States may be made only by the President, by 
 and with the advice and consent of the Senate, 
 the President alone, the courts of law, or the 
 heads of departments. (See Constitution, Art. 
 II, sec. 2, clause 2, and note thereto.) 
 
 Congress has vested in the heads of depart- 
 ments the appointment of clerks, laborers, and 
 other employees in their departments, and this 
 power can not be delegated. (See sec. 169, 
 R. S., and note thereto.) 
 
 Oath of office. — The oath to be taken by aU 
 persons elected or appointed to any office of 
 honor or profit in the civil, military, or naval 
 service, except the President, is that prescribed 
 by section 1757, Revised Statutes. (See act 
 May 13, 1884,_ sec. 2, 23 Stat., 22.) [A special 
 oath of office is required to be taken by all per- 
 sons employed in the postal service, by sections 
 391 and 392, Revised Statutes, as amended by 
 act of Mar. 5, 1874 (18 Stat., 19).] 
 
 The oath of office may be taken before any 
 officer who is authorized either by the laws of 
 the United States or by local laws to adminis- 
 ter oaths (sec. 1758, R. S.). The chief clerks 
 
 337 
 
Sec. 416. 
 
 Pi. 2. REVISED STATUTES. 
 
 Navy Department. 
 
 of the exei'uti\e departmente, aiul of the 
 bureaus and ollices thereof in Washington, 
 D. C, are required, on application, to adminis- 
 ter oaths to eni]ilo\ees on a]ipointnient and 
 promotit)n without eharginu; tlierefor (act Aug. 
 29, 1S!K), 2(i 8tat., 371); an<l no olhcer or em- 
 ployee of any executive tlejmrtment Avho is 
 also a notary public or othen\-ise authorized to 
 administer oaths shall charge or accept any fee 
 for administering the oatli of oliice to employees 
 in the same department on appointment or pro- 
 motion (s;xme act). 
 
 The oatlis of office taken by persons appointed 
 to office in any department shall be preserved 
 among the files of such department (sec. 1759, 
 R. S.). 
 
 As to persons authorized by law to adminis- 
 ter oatlis in connection with naval matters, see 
 note to section 183, Revised Statutes. 
 
 Judicial decisions concerning appoint- 
 ment and removal of employees. — "The 
 power to appoint carries the power to dismiss. 
 The authorities on this proposition are too 
 numerous to cite. * * * The Government 
 does not contract to keep its employees in its 
 service if their services are not needed, and the 
 right of the appointing power to dismiss at dis- 
 cretion exists with no general supervising power 
 in the courts to review the exercise of such 
 authority. * * * This power of appoint- 
 ment and removal is discretionary in character, 
 and without sj^ecific authority such power can- 
 not be delegated. * * * The interposition 
 of the courts Anth the performance of the ord- 
 nary duties of an executive department is not 
 within the power of the court." (Wheelock v. 
 U. S., 46 Ct. Cls., 1.) 
 
 A court of equity has no jurisdiction over the 
 appointment and removal of public officers. 
 The jurisdiction to determine the title to a 
 public office belongs exclusively to the courts 
 of law and is exercised either by certiorari, 
 error, or appeal, or by mandamus, prohibition, 
 quo warranto, or information in the nature of 
 a writ of quo warranto, according to the 
 circumstances of tlie case and the mode of 
 procedure established by common law or by 
 statute. (White v. Berry, 171 U. S., 366; see 
 also Sawyer's case, 124 U. S., 200; Morgan v. 
 Numi, 84 Fed. Rep., 551; Couper v. Smyth, 84 
 Fed. Rep., 757; Page v. Moffett, 85 F'ed. Rep., 
 38; Carrzj. Gordon, 82 Fed Rep., 373,379; Tay- 
 lor V. Kercheval, 82 Fed. Rep., 497, 499.) 
 
 A court of equity will not by injunction 
 restrain an executive officer from making a 
 wrongful removal of a subordinate appointee 
 nor restrain the appointment of another. 
 (Morgan v. Nunn, 84 l-'ed. Rep., 551.) 
 
 The appointment to an official position in the 
 Government, even if it be simply a clerical 
 position, is not a mere ministerial act, but one 
 mvohdng the exercise of judgment. The ap- 
 pointing power must determine the fitness of 
 the applicant; whether or not he is the proper 
 one to discharge the duties of the position. 
 Therefore it is one of those acts over which the 
 courts have no general supervising power. In 
 the absence of specific provision to the contrary, 
 the power of removal from office is incident to 
 the power of appointment. * * * Unless 
 therefore there be some specific provision to 
 the contrary, the action of the Secretary of the 
 
 Interior in removing the petitioner from -office 
 on account of inefficiency is beyond review in 
 the courts, either by mandamus to reinstate 
 him or by compelling payment of salary as 
 though he had not been removed. (Keim v. 
 U. S., 177 U. S., 290.) 
 
 The courts have no power, by mandamus or 
 otherwise, to review the action of the head of an 
 executive department of the Government in 
 removing a clerk from office, on the ground that 
 the removal was not in accordance with civil- 
 service rules requiring notice to be given and 
 an opportunity to reply to charges, where the 
 charge is that the clerk wrote and caused to be 
 published a newspaper article derogatory to the 
 President. (U. S. v. Taft, 24 App. D. C, 95.) 
 
 The power of appointment to the classified 
 civil service of the United States carries with it 
 the power of removal, which is unrestricted ex- 
 cept as controlled by the civil-service act of 
 January 16, 1883 (22 Stat., 403), which does not 
 limit the power of removal except for the single 
 cause of failure to contribute money or services 
 to a political party. (U. S. v. Taft, 24 App. D. 
 C, 95. — See other statutes relating to removal, 
 noted below.) 
 
 Honorably discharged soldiers or sail- 
 ors. — Section 1754, Revised Statutes, gives 
 preference for appointment to persons honor- 
 ably discharged from the military or naval serv- 
 ice. The act of August 15, 1876 (19 Stat., 169, 
 sec. 3), provides for preference in retention, 
 when force is reduced, of " those persons who 
 may be equally qualified who have been hon- 
 orably dischai-ged from the military or naval 
 service of the United States, and the widows 
 and orphans of deceased soldiers and sailors. " 
 The legislative, executive, and judicial appro- 
 priation act of August 23, 1912, section 4 (37 
 Stat., 413), provides for a system of efficiency 
 ratings to be established by the Civil Service 
 Commission, and that no honorably discharged 
 soldier or sailor whose record is rated good is to 
 be discharged or dropped, or reduced in rank or 
 salary in the event of reductions being made. 
 The legislative, executive, and judicial appro- 
 priation act of March 4, 1915 (38 Stat., 1007), 
 provides for the establishment of a Division of 
 Efficiency for the purpose of carrying into effect 
 the provisions of the act of 1912. The Army 
 appropriation act of May 12, 1917 (40 Stat., 72), 
 pro^ddes that employees of the Government 
 who are members of the Officers' Reserve 
 Corps shall, when relieved from duty, be re- 
 stored to the positions held by them when 
 ordered to dutv. 
 
 The act of March 3, 1919, section 6 (40 Stat., 
 1293) provides that '' hereafter in making ap- 
 pointments to clerical and other positions in 
 the executive departments and in independent 
 governmental establishments, preference shall 
 be given to honorably discharged soldiers, 
 sailors, and marines, and widows of such, if 
 they are qualified to hold such positions." 
 The act of March 1, 1919 (40 Stat., 1224) pro- 
 vides that ' ' the period of time during which 
 soldiers, sailors, and marines, both enlisted and 
 drafted men, who prior to entering the service 
 of their country, had a civil service status, 
 and whose names appear upon the eligible list 
 of the Civil Service Commission, shall not be 
 counted against them in the determination of 
 
 338 
 
Navy Department. 
 
 PL. 2. REVISED STATUTES. 
 
 Sec. 416. 
 
 their eligibility for appointment under the 
 law, rules and regulations of the Civil Service 
 Commission now in effect, and at the time of 
 demobilization their civil-service status shall 
 be the same as when they entered the service. " 
 The act of February 25, 1919 (40 Stat., 1164), 
 provided that "all former Government em- 
 ployees who have been drafted or enlisted in 
 the military service of the United States in 
 the war with Germany shall be reinstated on 
 application to their former positions, if they 
 have received an honorable discharge and are 
 qunlified to perform the duties of the position." 
 The act of July 11, 1919 (41 Stat., 142), pro- 
 vided that "all former Government employees 
 who have entered the military or naval service 
 of the United States in the war with the Ger- 
 man Government shall be reinstated on appli- 
 cation to their former positions if they have 
 received an honorable discharge and are quali- 
 fied to perform the duties of the position." 
 
 No thoughtful person questions the obliga- 
 tions which the Nation is under to those who 
 have done faithful service in its Army or Navy. 
 Congress has generously provided for the dis- 
 charge of those obligations in a system of pen- 
 sions more munificent than has ever before been 
 known in the history of the world. But it 
 would be an insult to the intelligence of Con- 
 gress to suppose that it contemplated any degra- 
 dation of the civil service by the appointment 
 to or continuance in office of incompetent or 
 inefficient clerks, simply because they had been 
 honorably discharged from the military or naval 
 service. (Keim v. U. S., 177 U. S., 295.) 
 
 The act of 1876 provides for the retention of 
 veterans who may be "equally qualified." 
 Under this law a court could not enter an execu- 
 tive department, examine the acts of its head, 
 inquire into the exercise of his discretion, and 
 investigate as to causes of its exercise. (Keim 
 V. U. S., 33 Ct. Cls., 174; 177 U. S., 290.) The 
 power of removal is a purely executive power, 
 which is not intrusted to the judicial branch of 
 the Government (same case). 
 
 The enactment of 1876 is not mandatory, and 
 the courts can not review the action of the 
 executive officers when they reduce the force of 
 a department. The administrative officers 
 charged with the authority must investigate 
 and settle for themselves the matter of actual 
 work done by various employees, by a com- 
 parison of one with another as to competency 
 and attention to duty. (Wheelock v. U. S., 46 
 Ct. Cls., 1, citing Keim -y. U. S., above; see also 
 Medrick v. U. S., 44 Ct. Cls., 469.) 
 
 Under former laws the courts had no power to 
 review the action of the head of a department 
 in discharging an employee for inefficiency. 
 Whether that rule is changed by the act of 
 August 23, 1912 (37 Stat., 413), not decided, as 
 that act has not been made effective by the ac- 
 tion of the Civil Service Commission as therein 
 provided. (Persing v. Daniels, 43 App. D. C, 
 470. [In this connection, see act of March 4, 
 1915 (38 Stat. 1007), noted above.] 
 
 Civil-service law and regulations. — The 
 civil-service law (act Jan. 16, 1883, 22 Stat., 403) 
 was intended to provide a body of civil officers 
 selected solely tor competency and fitness, 
 protect them against accountability to any 
 political party, and prevent their discharge, 
 
 promotion, or degradation for giving or with- 
 holding political contributions; but it did not 
 deprive the appointing power of any existing 
 rights to remove or change in rank for other rea- 
 sons. (Carr v. Gordon, 82 Fed. Kep., 373.) 
 
 An Executive order dated July 27, 1897, con- 
 tained the following: "No removal shall be 
 made from any position subject to competitive 
 examination except for just cause and upon 
 written charges filed with the head of the de- 
 partment or other appointing officer, and of 
 which the accused shall have full notice and 
 an opportunity to make defense." [Similar 
 provisions since embodied in act of Aug. 24, 1912, 
 section C, 37 Stat., 555.] Notwithstanding this 
 order an employee was removed by the Com- 
 missioner of Pensions without written charges 
 filed against him and without notice or oppor- 
 tunity to make defense, but in consequence of 
 the reduction of the clerical force required by 
 law. Held that in legal contemplation the 
 head of a department is an arm of the Execu- 
 tive, and the Pension Office is a branch of the 
 Interior Department; an order sent out in the 
 regular course of business from the appropriate 
 executiA e department is the legal equivalent 
 of the President's own order. The order which 
 discontinued plaintiff's services was special in 
 character and superseded the general order for 
 the purposes of this case. Wlien the head of 
 the Pension Office exercises discretion as to 
 capacity between clerks in his office, the exer- 
 cise of his discretion can not be reviewed in 
 the courts. (Medrick v. U. S., 44 Ct. Cls., 469.) 
 The protection of the President's order of 
 July 27, 1897, against removals from the civil 
 senice except upon written charges with op- 
 portunity for defense extends to an employee 
 in the office of the United States Surveyor Gen- 
 eral in tl e State of Idaho. (U. S. v. Wicker- 
 sham, 201 U. S.,390.) 
 
 The order of the President of July 27, 1897, 
 prohibiting removals from positions subject to 
 competitive examination except upon written 
 charges and notice, is an administrative order 
 regulating the conduct of the President's sub- 
 ordinates; but it Las not the force of law and 
 confers upon an incumbent no right to hold in- 
 definitely, and no right of which a court of 
 eciuity can take cognizance. (Carr v. Gordon, 
 82Fed. Eep.,373.) 
 
 Neither Revised Statutes, section 1753, nor the 
 civil -service act of January 16, 1883, puts any re- 
 strictions upon tl;e power of removal from ap- 
 pointive offices, except for refusal to contribute 
 to political funds or neglect to render political 
 services; hence presid,ential rule 11, relating 
 to the civil service and providing, as amended 
 July 27, 1897, that no removal shall be made 
 without giving the accused notice and an op- 
 portunity to make defense, has not such au- 
 thority as law as confers upon the holder of an 
 office a vested right thereto, with the right to 
 invoke the equitable power of the courts to 
 restrain his removal for violation of such rule. 
 (Page -i;. Moffett, 85 Fed. Rep., 38.) 
 
 The ci\-il-serA-ice law cloes not prohibit 
 removal or discharge except for gi^'ing, wTth- 
 holding, or neglecting to make contributions of 
 money for political purposes. (Morgan v. 
 Nunn, 84 Fed. Rep., 551.) 
 
 339 
 
Sec. 416. 
 
 PL 2. REVISED STATUTES. 
 
 Navy Department. 
 
 Removal of employee on probation. — 
 Neither the .•statutes nor the rule^ ])r()inu)«i;ated 
 cast upon the Government the oblipjation of 
 employing: men on probation or in the perma- 
 nent service whose serA-ices are not needed ; and 
 a i)rol)at inner has no ri^rht to be retained for the 
 full j)eriod of six months if his serA-ices are not 
 neecled. (Hrown v. IJ. S., 39 Ot. Cls., 255.) 
 
 In the absence of a statute or express contract 
 bindins; the Government to employ a person 
 for a definite period, his employment comes 
 under the general rule of master and servant, 
 that a person who is not hired for a specified 
 time may be dischar<^ed when his servnces are 
 no longer needed. (Brown v. U. S., 39 €t. 
 CIs.,255.) 
 
 The civil-service laws and rules were enacted 
 and promulgated to prevent the discharge of 
 employees whose services are needed but who 
 may be discharged because of other considera- 
 tions than the welfare of the public semce. 
 (Brown v. U. S., 39 Ct. Cls., 255.) 
 
 Status of employee who refuses to 
 resign.— Where the head oi a department 
 makes a request for a resignation and it is not 
 handed in, the officer forfeits no right either 
 because of his failure to resign or because re- 
 quested to do ,so. (Knight v. U. S., 35 Ct. 01s., 
 129.) 
 
 Neglect of duty as ground for removal. — 
 "A neglected duty often works as much against 
 the interests of the Government as a duty 
 wrongfully performed, and the Government has 
 a right to demand and expect of its employees 
 not merely competency but fidelity and atten- 
 tion to the duties of their positions." (Keim v. 
 U. S., 177 U.S., 295.) 
 
 Suspension of employees. — The power to 
 suspend an officer without compensation is inci- 
 dental to the power to appoint and discharge. 
 The exercise of this power enables the head of 
 a department to retain an officer who otherwise 
 would have to be discharged. (Wertz v. U. S., 
 40 Ct. Cls., 397; 11 Comp. Dec, 570; see also 
 file 2704-04; file 103-98.) 
 
 An order directing an officer appointed by the 
 President to proceed to his home, notifying 
 him that his daily pay Avill cease from and after 
 the date of his arrival, does not discharge him 
 from service. His status is that of an officer 
 awaiting employment, and not entitled to his 
 per diem compensation until emploved. 
 (Wertz v.V. S.,40 Ct. Cls., 397.) 
 
 An employee can not recover compensation 
 from the time the appointing power furloughs 
 him, if the furlough be without pay, to the time 
 the employee is restored to duty. There is 
 nothing to prevent the head of a department 
 from putting an employee on furlough wathout 
 pay at any time when the exigencies of the 
 service require it. (Wheelock v. U. S., 46 Ct. 
 Cls., 1, citing Stillings v. U. S., 41 Ct. Cls., 61, 
 and U. S. ?;. Murray, 100 U. S., 5.36.) 
 
 The head of a department may put an em- 
 ployee on furlough without pay at any time if 
 the exigencies of the service require it. He 
 may be dismissed absolutely, and it is difficult 
 to see why, if this can be done, he may not be 
 furloughed \vithout pay, which is the effect of 
 a partial dismissal. (U. S. f . Murray, 100 U. S., 
 530; see also 11 Comp. Dec, 560.) 
 
 The head of a department is authorized to 
 suspend an employee from duty without pay, 
 
 {lending the investigation of charges against 
 lim, whether said employee is paid from lump- 
 sum apjiropriations or is specifically a])])ropri- 
 ate<l for bv law. (11 Comp. Dec, 560; 21 ( 'omp. 
 Dec. 478; see al?o 10 Comp. Dec, 301, U 
 Comp. Dec, 605, 20 Comp. Dec, 505; file 6696- 
 212:4.) 
 
 Where the suspension of an employee from 
 duty is clearly wrongful, he is entitled to re- 
 co\-er salary for the time of the suspension. 
 (Lellmann's case, 37 Ct. Cls., 128; Wickersham's 
 case, 201 U. S., 390, affirming 39 Ct. Cls., 558; 
 see also Medrick v. U. S., 44 Ct. Cls., 479.) 
 But where thc^re was probable cause for the sus- 
 pension, the fact that the employee is restored 
 to duty because on in\estigation the eA'idence 
 is found insuificient to support the charges does 
 not entitle him to recover pay for the period of 
 the suspension. (11 Comp. Dec, 500; 11 
 Comp. Dec, 661; see also 11 Comp. Dec, 
 776.) 
 
 Where a clerk in the classified service was 
 suspended and charges were preferred against 
 him by a surveyor general, and the commis- 
 sioner investigated the charges and ordered that 
 the suspension lie permanent, the action of the 
 commissioner was in legal effect a dismissal and 
 can not be reviewed by the judiciary. (Lell- 
 mann v. U. S., 37 Ct. Cls., 128.) 
 
 Investigation of charges. — The head of 
 any department is authorized to detail any 
 officer or clerk in his department to investigate 
 any irregularity or misconduct of any officer or 
 agent of the United States under his jurisdic- 
 tion; and such officer or clerk so detailed, or 
 any officer of the Navy or Marine Corps detailed 
 to conduct an investigation, is authorized to 
 administer oaths to witnesses. (See sec. 183, 
 R. S., as amended ])y act Feb. 13, 1911, 36 Stat. 
 898.) 
 
 Perjury committed by a witness in such in- 
 vestigation is punishable by fine and imprison- 
 ment. (Sec. 125, Criminal Code, act Mar. 4, 
 1909, 35 Stat 1111). 
 
 In the Navy Department investigations of 
 employees have been conducted under section 
 183, Revised Statutes, as amended (see file 
 26263); while investigations of misconduct by 
 employees at naval stations have been con- 
 ducted by court of inquiry authorized by sec- 
 tion 1624, Revised Statutes, articles 56-60 (see 
 file 6692-212:3) or by a naval board of investi- 
 gation (see file 26283-166; Ct. Inq. No. 6171). 
 
 No examination of witnesses, nor any trial or 
 hearing is required by law prior to removal of 
 an employee, except in the discretion of the 
 officer making the removal (act Aug. 24, 1912, 
 sec. 6, 37 Stat.. 555), but the person accused 
 is entitled to notice and copy of the charges, 
 with reasonable time to answer same prior to 
 his removal. (Same act.) 
 
 Political contributions. — A statute (act 
 Aug. 15, 1876, 19 Stat., 169) prohibiting executive 
 officers or employees of the United States from 
 giving to or receiving from each other contri- 
 butions for political purposes, was designed to 
 promote efficiency and integrity in the discharge 
 of official duties and is constitutional. (Ex 
 
 340 
 
Navy Department. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 416. 
 
 parte Curtis, 106 U. S., 371; affirming U. S. v. 
 Curtis, 12 Fed. Rep., 824.) 
 
 Increases in pay not promotion to new 
 office. — \\Tiere a clerk takes but one oath of 
 office, receives but one letter of appointment, 
 and during his whole period of service acts as 
 a clerk in the same office, promotions, so-called, 
 are but increases in pay and in no sense a pro- 
 motion to a different office. (Butler v. U. S., 
 47 Ct. Cls., 39.) 
 
 A new appointment is not made necessary 
 merely by reason of an increase in the salary of 
 an office. (29 Op. Atty. Gen., 116, citing 1 
 Comp. Dec, 267, 1 Comp. Dec, 313, 3 Comp. 
 Dec, 336.) 
 
 Where a civilian dentist employed at the 
 Naval jicademy was by act of Congress given 
 "the same official status, pay, and allowances" 
 as an officer of the Army serving as dental siu-- 
 geon at the Military Academy, it was held that 
 the law was self-operative, and did not require 
 any action by the appointing power or the 
 Navy Department to give it effect; that it did 
 not create a new office and accordingly that no 
 appointment or commission was necessary or 
 could properly be issued to the dentist in 
 question under its provisions. (File 13707-25, 
 Oct. 24, 1915, construing proviso in act Aug. 
 22, 1912, 37 Stat. 345. The foUomng year Con- 
 gress specifically provided for the appointment 
 of this civilian dentist as "a dental surgeon in 
 the Navy, " (act Mar. 4, 1913, 37 Stat. 891), and 
 a new appointment was issued to him accord- 
 ingly . ) 
 
 Assignment of employees to duty. — A 
 court of equity ought not to control the discre- 
 tion which, under existing statutes, the execu- 
 tive department has in all such matters as the as- 
 signment and detachment of employees from 
 duty. Interference by the judicial depart- 
 ment in such cases would lead to the utmost 
 confusion in the management of executive 
 affairs. (White v. Berry, 171 U. S., 366.) 
 
 Employees doing' duty at their homes. — 
 Where a female clerk in an executive depart- 
 ment, in consideration of the sickness of her 
 husband, is excused from attendance and is to 
 have her work sent to her residence, if it be not 
 sent she is bound to report to the department; 
 if she neglects to report, her tenure can not be 
 deemed to extend beyond the current month. 
 (Palmer v. U. S., 17 Ct. Cls., 230.) 
 
 Extra pay on discharge. — Clerks dis- 
 charged without fault on their part, by reason 
 of reductions in force made necessary at the 
 close of a fiscal year, by special authority of 
 Congress have been allowed two months' pay 
 as a gratuity on discharge. (See joint resolu- 
 tion, June 23, 1874, 18 Stat., pt. 3, p. 289; U. S. 
 V. Miuray, 100 U. S., 536; Schaeffer v. U. S., 
 11 Ct. Cls., 730.) 
 
 Employees incapacitated for duty. — 
 The annual legislative, executive, and judicial 
 appropriation act contains the following provi- 
 sion: "That the appropriations herein made 
 for the officers, clerks, and persons employed 
 in the public service shall not be available for 
 the compensation of any persons incapacitated 
 otherwise than temporarily for performing such 
 service." (See, for example, act Mar. 3, 1917, 
 
 sec 3, 39 Stat., 1121.) However, compensa- 
 tion may be paid in certain cases where em- 
 ployees are injured in course of employment. 
 (Act Sept. 7, 1916, 39 Stat., 742.) 
 
 As to distribution of clerks, temporary 
 details, transfers between departments, 
 etc., see sections 166 and 169, Revised Statutes, 
 and references thereunder. 
 
 Under the provisions of the act of March 4, 
 1915 (38 Stat., 1084), when one bureau of the 
 War or Navy Departments performs any service 
 for another bureau of such departments, the 
 head of the department for which the service 
 is to be performed may cause its funds to be 
 transferred on the books of the Treasiu-y De- 
 partment to the prociuing department for 
 direct expenditm-e by it. The funds so trans- 
 ferred are to be expended and accounted for 
 under the riiles and regulations of the depart- 
 ment to which they are advanced. (21 Comp. 
 Dec. 819; see also 22 Comp. Dec. 145, and sec. 
 3678, R. S.) 
 
 Voluntary services shall not be accepted, 
 nor personal service employed in excess of that 
 authorized by law, except in cases of sudden 
 emergency involving loss of life or destruction 
 of property. (Act May 1, 1884, 23 Stat., 17; 
 act Mar. 3, 1905, 33 Stat., 1257; and act Feb. 27, 
 1906, 34 Stat., 49; see sec. 3679, R. S.) 
 
 Use of contingent and miscellaneous 
 appropriations for clerical compensation is 
 restricted liy section 3682, Revised Statutes, and 
 act of August 5, 1882, section 4 (22 Stat., 
 255). 
 
 During the sessions of Congress an 
 additional clerk can not 1)6 employed in the of- 
 fice of the Judge Advocate General of the Navy, 
 as allowed l^y section 171, Revised Statutes, as 
 that section is repealed by later laws prohibiting 
 employment of clerical services in excess of an- 
 nual appropriations therefor. Additional clerk 
 may ]>e detailed to office of Judge Advocate 
 General, if necessary, from some other office or 
 bureau of the Navy Department in accordance 
 with section 166, Revised Statutes. (Comp. 
 Dec, Oct. 28, 1915, file 26254-1906.) 
 
 Statutes authorizing assistant chiefs 
 and chief clerks in the bureaus of the Navy 
 Department are to be read in connection with 
 section 178, Revised Statutes, ,as explaining who 
 are authorized to act as chief of bureau during 
 the latter's absence. Section 178 applies only 
 to "assistants" to chiefs of bureaus who aie 
 specifically provided for by statute. (19 Op. 
 Atty. Gen., 503.) 
 
 Recording clocks not to be used in record- 
 ing time of clerks or other employees in any of 
 the executive departments at Washington. 
 (Act Feb. 24, 1899, 30 Stat., 864.) 
 
 No part of the appropriations for the naval 
 service shall be available for salary of any per- 
 son making, with a stop watch or other time- 
 measuring device, a time study of any job of any 
 employee of the United States Government or 
 of the movements of any such employee; nor 
 for use as premium or bonus or cash reward to 
 any employee in addition to his regular wages, 
 except for suggestions of improvements or econ- 
 omy in the operation of any Government plant. 
 (See act Mar. 4, 1917, 39 Stat., 1195.) 
 
 341 
 
Sec. 41"; 
 
 Pt.'2. REVISED STATUTES. 
 
 Navy Department. 
 
 Sec. 417. [Duties of the Secretary of the Navy. J The Secretary of the Navy 
 shall execute such orders as he shall receive from the President relative to tlie 
 procurement of naval stores and materials, and the construction, armament, 
 o((iii])ment, and employment of vessels of war, as well as all other matter's con- 
 nected ^vith the naval establishment. [See title Public contracts. Also sees. 
 3660-3667,3669.]— (30 Apr., 1798, c. 35, s. 1, v. 1, p. 353.) 
 
 Aumial reports required to be made to Congress 
 by Secretary of the Navy — see section 429, 
 Re\ised Statutes. 
 
 Appointment of employees in the Navy De- 
 partment to be made by the Secretary of 
 the Navy — see section 169, Revised Stat- 
 utes. 
 
 Appro])riations for Navy Department controlled 
 and expended by direction of the Secretary 
 of the Navy. (Sec. 307(1, R. S.) 
 
 Arlington Memorial Ampitheater, Secretary of 
 the Navy to serve on commission to make 
 annual recommendations as to memorials, 
 entombments, etc., in. (Act Mar. 4, 1921, 
 41 Stat., 1440.) 
 
 Business of Navy Department to be distrib- 
 uted by Secretary of the Navy between the 
 bureau's and offices therein. (Sees. 161 and 
 419, R. S.) 
 
 Coast Guard to be under the orders of the Sec- 
 retary of the Navy in time of war or when 
 the President may direct. (Act Jan. 28, 
 1915, 38 Stat., 800.) 
 
 Congressional Record, daily examination of, to 
 be required by the Secretary of the Na\^ 
 in his department. (Act Jan. 12, 1895, sec. 
 90, 28 Stat., 623.) 
 
 Contracts and piu-chases of supplies to be under 
 the direction of the Secretary of the Navy. 
 (Sec. 3714, R. S., as amended by act Feb. 
 27, 1877, sec. 1, 19 Stat., 249; see also sec. 
 3747, R. S.; sees. 3718-3730, R. S.) 
 
 Courts-martial and courtsof inquiry may be con- 
 vened by the Secretary of the Navy. (Sec. 
 1624, R. S., art. 38, as amended by act Feb. 
 16, 1909, sec. 10, 35 Stat., 621; and sec. 
 1624, R. S., art. 55.) 
 
 Courts-martial proceedings may be set aside, or 
 their sentences remitted or mitigated by 
 the Secretary of the Navy. (Sec. 1624, R. 
 S., as amended by act Feb. 16, 1909, sec. 9, 
 35 Stat. 621.) 
 
 Custody of property appertaining to the Navy 
 Department to be in the Secretary of the 
 Navy. (Sec. 418, R. S.) _ 
 
 Desertion charge entered against enlisted men 
 during Civil War may be removed by Sec- 
 retary of the Navy. (Act Aug. 14, 1888, 25 
 Stat., 442, as amended by act May 24, 1900, 
 31 Stat., 183.) 
 
 Discharge certificates in true names to be issued 
 by Secretary of the Navy, in certain cases 
 to persons who served in Navy under as- 
 sumed name.-?. (Act Aug. 22, 1912, 37 Stat., 
 324.) 
 Duplicate discharge certificates may be issued 
 by Secretary of Navy to officers and men in 
 certain cases in lieu of lost discharges. (Act 
 Feb. 7, 1890, 26 Stat., 6.) 
 Duties of bureaus in the Navy Department to be 
 under the direction of the Secretary of the 
 Navy. (Sec. 420, R. S.) 
 
 Duties of Chief of Naval Operations to be under 
 the direction of the Secretary of the Navy. 
 (Act Mar. 3, 1915, 38 Stat., 929.) 
 
 Duties of Judge Advocate General to be under 
 the direction of the Secretary of the Navy. 
 (Act June 8, 1880, 21 Stat., 164, as amended 
 by act June 5, 1896, 29 Stat., 251.) 
 
 Estimates to be submitted annually to Con- 
 gress by Secretary of the Navy through the 
 Secretaiy of the Treasury. (Sees. 3660, 
 3669, R. S.; see references under sec. 430, 
 R. S.) 
 
 Insane persons belonging to the Navy or Ma- 
 rine Corps to be placed in hospitals for the 
 insane upon order of the Secretary of the 
 Navy. (Sees. 1551 and 4843, R. S. ; act Feb. 
 9, 1900, 31 Stat., 7.) 
 
 Marine Corps, subject to the orders of the Secre- 
 tary of the Navy except when detached by 
 • President for duty with the Army. (Sec. 
 1621, R. S.) 
 
 ]Midshipmen may be appointed to Naval Acad- 
 emy by Secretary of the Navy w ithout con- 
 gressional nomination. (Acts June 29, 1906 
 
 34 Stat., 578; June 30, 1914, 38 Stat. 
 410; Feb. 15, 1916, 39 Stat., 9; Aug. 29 
 1916, 39 Stat., 576; Mar. 4, 1917, 39 Stat. 
 1182; Dec. 20, 1917, 40 Stat., 4.30.) 
 
 Midshipmen may be dismissed by Secretary of 
 Navy upon written approval of the Presi- 
 dent. (Act Apr. 9, 1906, sec. 1, 34 Stat. 
 104.) 
 
 Midshipmen on graduation may be assigned by 
 Secretary of the Navy to fill vacancies in 
 Marine Corps or Staff Corps of the Navy. 
 (Act July 9, 1913, 38 Stat., 103.) 
 
 Navy-yard employees, number and compensa- 
 tion of clerical, drafting, inspection, and 
 messenger force to be fixed by Secretary of 
 the Navy. (Act Mar. 3, 1909, 35 Stat., 754.) 
 
 Ocean mail vessels to be constructed according 
 to plans approved by Secretary of the 
 Navy, with reference to their conversion 
 into auxiliary naval cruisers; Postmaster 
 General not to employ any vessel in ocean 
 mail service which is not approved bv the 
 Secretary of the Navy. (Act Mar. 3, 1891, 
 sec. 4, 26 Stat., 831.) 
 
 Officers may be furloughed by the Secretary of 
 the Navy (sec. 1442, R. S.) ; maybe assigned 
 to duty on ocean mail vessels with furlough 
 pay (act Mar. 3, 1891, sec. 7, 26 Stat. 832); 
 may be employed on active duty after re- 
 tirement (sees. 1462--14G5, R. S.; acts Aug. 
 22. 1912, 37 Stat., 329, and July 1, 1918, 40 
 Stat., 717); settlement of claims for travel- 
 ing expenses under the control of the 
 Secretary of the Navy (act Mar. 3, 1909, 
 
 35 Stat., 774.) 
 
 Official Register of the United States: Informa- 
 tion for publication in, must be fm'nished 
 biennially by the Secretary of the Navy 
 
 342 
 
Navy Department. 
 
 Pt. 2. REVISED STATUTES 
 
 Sec. 417. 
 
 to the Director of the Census. (Act Jan. 12, 
 1895, sec. 73, 28 Stat., 618, as amended by 
 act June 7, 1906, 34 Stat., 219, and act Oct. 
 22, 1913, 38 Stat., 224.) 
 
 Opinion of the Attorney General may be ob- 
 tained by the Secretaiy of the Navy upon 
 questions of law pending in the Navy De- 
 partment (sees. 356, 357, R. S.); decision of 
 the Comptroller of the Treasiuy may be 
 obtained by the Secretary of the Navy 
 upon any question involving a pajinent to 
 be made by or under the Secretary (act 
 July 31, 1894, sec. 8, 28 Stat., 208); and a 
 report by the Court of Claims of its findings 
 of fact and conclusions of law may be ob- 
 tained by the Secretary of the Navy for 
 his guidance upon any claim or matter 
 pending in the Navy Department which 
 involves controverted questions of fact or 
 law. (Judicial Code, act Mar. 3, 1911, 
 sees 148-150, 36 Stat., 1137, 1138; Berger 
 v.V. S.,36Ct. Cls.,243, 247.) 
 
 Regulations for the Na\y Department and 
 Naval Establishment are to be issued by the 
 Secretary of the Navy. (Sees. 161 and 
 1547, R.S.; see also sees. 1548, 1549, 1620, 
 1621, and 1624, art. 34, R. S.; acts Feb. 9, 
 1889, 25 Stat., 658; May 22, 1896, 29 Stat., 
 133; May 13, 1908, 35 Stat., 128, amended 
 Aug. 22, 1912, 37 Stat., 329; May 13, 1908, 
 35 Stat., 153; Feb. 16, 1909, sees. 5, 14, 35 
 Stat., 621, 622; Mar. 3, 1909, 35 Stat., 768; 
 June 24, 1910, 36 Stat., 619; Aug. 22, 1912, 
 
 37 Stat., 341; Mar. 4, 1913, 37 Stat., 909; 
 Feb. 16, 1914, 38 Stat., 283; Mar. 3, 1915, 
 
 38 Stat., 930, 939, 941, 942, 943; etc.). 
 Requisitions on Treasury for moneys appro- 
 priated for the Navy, to be made by the 
 Secretary of the Navy. (Sec. 3673, R. S.) 
 
 Requisitions on Treasury for advances to dis- 
 bursing officers to be made bv the Secre- 
 tary of the Navy. (Act June' 19, 1878, 20 
 Stat.. 167.) _ 
 
 Smithsonian institution. Secretary of the Navy 
 is member of. (Sec. 5579, R.S.,asamended. 
 See also note to sec. 415, R. S.) 
 
 State, War, and Navy Department Building to 
 be under the care and super\'ision of a com- 
 mission composed of Secretaries of State, 
 War, and Navy. (Act Mai'. 3, 1883, 22 
 Stat., 553.) 
 
 Superintendence of Na\'y hospitals (sec. 4807, 
 R. S.) and of Naval Home (sec. 4811, R. S.) 
 to be under the Secretary of the Navy. 
 
 Trustee of Na\'y Pension Fund, Secretary of 
 the Navy to be. (Sec. 4750, R. S.) 
 
 Vessels to be named by Secretary of the Navy 
 (sees. 1531-1533, R. S. ; act May 4, 1898, 30 
 Stat., 390; act May 13, 1908, 35 Stat., 159); 
 may be loaned by Secretary to nautical 
 schools (act Mar. 4, 1911, 36 Stat., 1353). 
 Naval equipment may be loaned to military 
 schools. (Act Mar. 3, 1901, 31 Stat., 1440, 
 as amended by act June 29, 1906, 34 Stat., 
 620, and act June 24, 1910, 36 Stat., 
 613.) 
 
 Y. M. C. A. buildings in navy yards and stations 
 may be furnished heat and light without 
 charge, in the discretion of the Secretary 
 of the Na\'y. (Act Mar. 4, 1911, 36 Stat., 
 1274.) 
 
 "The Secretary of the Navy represents 
 the President, and exercises his power on the 
 subjects contided to his department." (U. S. 
 V. Jones, 18 How., 92.) 
 
 As a general rule, no appeal lies to the Presi- 
 dent from the head of a department, whose acts 
 are presumed to be the acts of the President 
 himseh. (9 Op. Atty. Gen., 462.) However, 
 in the naval service appeals may be taken to 
 the President from the orders or decisions of 
 the Secretary of the Navy. (Art. 5323, Naval 
 Instructions, 1913.) 
 
 "The President acts and speaks through the 
 heads of the departments, and the acts of the 
 head of an executive department must be pre- 
 sumed to be by the direction of the President." 
 (Weller v. U. S., 41 Ct. Cls., 324, holding that 
 the Secretary of the Navy acts for the_ Presi- 
 dent in appointing and dismissing midshipmen. 
 But see act Apr. ''9, 1906, sec. 1,34 Stat. 104, 
 providing for dismissal of midshipmen by the 
 Secretary of the Navy "upon ^vritten approval 
 of the President.") 
 
 The Secretary of the Navy's action in ad- 
 vancing money to contractors is the action of 
 the President within the terms of the statute 
 relating thereto. "In reference to this subject 
 it may be said, with even more propriety than 
 in Wilcox V. Jackson [13 Pet., 498, 513] that 
 whatever the President is to do, he is to do 
 through and by the Secretary. So far as the 
 authority of the President was necessary, I must 
 consider him as speaking and acting tluough 
 the Secretary to whom the subject was com- 
 mitted by Congress. I must presume, in the 
 absence of all evidence, that the advances made 
 were with his approbation and under his direc- 
 t ion within the meaning of the act of Congress. ' ' 
 (U. S. V. Cutter, 25 Fed. Cas. No. 14911.) 
 
 An order issued by the Secretary of the Navy 
 is presumed to be issued with the approval of 
 the President and meets the requirements of 
 section 1547, Revised Statutes, although it does 
 not bear the express approval of the President; 
 and this applies even though the order pay be 
 in conflict with a prior regulation which was 
 expressly approved by the President. (Adams 
 i;. U. S.,42 Ct. Cls., 211.) 
 
 The Secretary of the Navy may sign commis- 
 sions issued to officers; but "it is proper" that 
 the commission should declare the act to be an 
 act of the President, performed by the head of 
 the department as his representative. (22 Op. 
 Atty. Gen., 82. See also O'Shea v. U. S., 28 
 Ct. Cls., 392; 25 Op. Atty. Gen., 292.) 
 
 The transfer of a part of the naval station in 
 Porto Rico to the Government of Porto Rico in 
 accordance with law may be made by the 
 Secretary of the Navy, since in contemplation 
 of law the acts of the heads of the executive 
 departments are the acts of the President; but 
 it would be preferable to have the formal 
 transfer effected by Presidential proclamation. 
 (29 Op. Atty. Gen., 205.) 
 
 By the Constitution, the President is made 
 Commander in Chief of the Army and Navy of 
 the United States. The Departments of War 
 and of the Navy are the channels, through 
 which his orders proceed to them, respectively, 
 and the Secretaries of those departments are the 
 organs by which he makes his will known to 
 
 343 
 
Sec. 417. 
 
 PL 2. REVISED STATUTES. 
 
 Navy Department. 
 
 them. The orders issued by those officers are, 
 in contemplation of law, not their orders, but 
 the ortlers of the President of the United States. 
 (10p.Atty.Gen..:^SO;6qp.Atty.Gen.,357,365.) 
 
 Wnere an approj)riation was made "to be 
 expencled at tlie tliscretion of the President," 
 it evinces the utmost conscience of Conscress in 
 the President to make proper distribution of 
 the fund. The order of the Secretary of the 
 Navy, in the administration of the appropria- 
 tion, must be regarded as the order of the 
 President, and was an exercise of the discretion 
 veste<l in the President. (Hayden v. U. S., 
 38 Ct. Cls., 39.) 
 
 A letter was addressed by the Secretary of 
 the NaA'y- to an officer of the Marine Corps, 
 stating "you are hereby dismissed from tlie 
 service from this date." At this time the 
 power of summarily di.-^missing officers was pos- 
 sessed by the President. It was contended 
 that "since the order in question simply pur- 
 ported to be the act of the Secretary, and did 
 not purport to be the act of the President, or to 
 have been issued in pursuance of any previous 
 direction by him given, the presumption can 
 not be indulged that the dismissal of Lieuten- 
 ant McElrath was by order of the President." 
 The court stated in its opinion: "These propo- 
 sitions open up a very broad field of inquiry as 
 to what exceptions there are to the general rule 
 that the direction of the President is to be pre- 
 sumed in all instructions and orders issuing 
 from the proper department concerning exec- 
 utive business, notwithstanding they may 
 contain no express statement of any direction 
 from him, as to the matters to which such 
 instructions or orders refer. There are un- 
 doubtedly official acts which the Constitution 
 and laws require to be performed by the Presi- 
 dent personally, and the performance of which 
 may not be delegated to heads of departments; 
 or to other officers in the executi\e branch of 
 the Government. It is equally true that as to 
 the vast multiplicity of matters involved in 
 the administration of the executive business 
 of the Government, it is physically impossble 
 for the President to give them his personal 
 super\-ision. Of necessity he must, as to such 
 matters, discharge his duty through the instru- 
 mentality or by the agency of others. Whether 
 a particular act belongs to one or the other of 
 these classes may sometimes be very difficult 
 to detennine, and we shall not attempt now to 
 lay down any general rule upon the subject. 
 Nor shall we extend this opinion by any con- 
 sideration of the question whether the particu- 
 lar order signed by Secretary Welles should not 
 be presumed to have been issued by direction 
 of the President. The determination of that 
 question is not essential to the dii^position of 
 tnis case, since if that order should, for the 
 reasons urged by the claimant's counsel, be 
 deemed a nullity, the nomination and con- 
 firmation subsequently of Lieutenant Haycock, 
 followed by his commission as a first lieutenant 
 in the Marine Corps in place of Lieutenant 
 McElrath, as certain'y operated under the law 
 as it then was to remove the latter from the 
 service as if he had been dismissed by direct 
 order of the President under his own signature. ' ' 
 (McElrath v. U. S., 102 U. S., 426.) 
 
 For other decisions, see notes to Constitution, 
 Article II, sectitm 1, clause 1, and Article II, 
 section 2, clause 1; and section 158, Revised 
 Statutes. (See also Bishop v. U. S., 38 Ct. 
 Cls., 473; McCollum v. U. S., 17 Ct. Cls., 101, 
 and cases there cited; Nortliern Pac. R. Co. v. 
 Mitchell. 208 Fed. Rep., 469; De Arnaud v. 
 Ainsworth. 24 App. D. C. 167, 5 L. R. A. 
 (N. S.) 163; Hegler v. Faulkner, 153 U. S., 
 109, 117.) 
 
 Deliberate delays in performing du- 
 ties. — An executive department has no right, at 
 the recjuest of a committee of Congress, to omit 
 or delay the discharge of duties imposed upon it 
 by law. When a right is created by law and a 
 duty devolved upon an executive department 
 under the same law, the enjoyment or enforce- 
 ment of such right can not be suspended be- 
 cause of the possibility that the law may be 
 changed. To deprive any person of a right 
 which the law creates, at the request of any- 
 body, would be a novel idea under a system of 
 government which is supposed to be a govern- 
 ment of laws and not of men. Such a result 
 could not be attained by any action even of 
 the whole House of Representatives, or of both 
 branches of Congress, unless by a change in the 
 law itself. (13 Op. Atty. Gen., 113.) 
 
 Duties generally require judgment and 
 discretion. — In general the official duties of 
 the Secretary of the Navy, whether imposed 
 by act of Congress or by resolution, are not mere 
 ministerial duties. The head of an executive 
 department of the Government in the admin- 
 istration of the various and important concerns 
 of his office is continually required to exercise 
 judgment and discretion. He must exercise 
 his judgment in expounding the laws and reso- 
 lutions of Congress under which he is from time 
 to time required to act; if he doubts, he has a 
 right to call on the Attorney General to assist 
 him with his counsel; and it would be diffi- 
 cult to imagine why a legal adviser was pro- 
 vided by law for the heads of departments as 
 well as for the President unless their duties 
 were regarded as executive, in which judg- 
 ment and discretion were to be exercised. 
 (Decatur v. Paulding, 14 Pet., 497.) 
 
 Where the Secretary of the Navy is author- 
 ized by law to construct vessels in the most 
 improved way, he is necessarily clothed with 
 large tliscretion, both as to the materials and 
 methods to be used. (Brooks v. U. S., 39 Ct. 
 Cls., 494.) 
 
 The Secretary of the Navy has authority to 
 settle the amounts due under a contract for the 
 building of a ship of war, and demands for extra 
 work agreed upon, and expenses incurred be- 
 cause of the department's action of which the 
 Government has received the benefit. (Myerle 
 V. U. S., 31 Ct. Cls., 105.) 
 
 When the law constitutes the Secretary of 
 tlie Navy, together with the headsof certain 
 other departments, a board of commissioners of 
 a fund for the benefit of the Navy, and gives 
 some general directions in what way the fund 
 is to be employed, but the mode and manner 
 of transacting their business is not in any way 
 prescribed, it rests in the discretion of the 
 board whether or not its proceedings shall be 
 in writing. It is fit and proper that important 
 
 344 
 
Navy Department. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 417. 
 
 transactions should be reduced to writing, but 
 the law imposes no such indispensable duty. 
 (U. S. V. Fillebrown, 7 Pet., 28, concerning 
 "commissioners of navy hospitals," which ex- 
 isted under laws not now in force.) 
 
 The Secretary of the Navy is authorized, in 
 his discretion, to appoint a firm in London to 
 act as his agent in paying drafts drawn by naval 
 officers, and he may, when necessary, exact and 
 receive all such securities as he can obtain 
 to protect his department against loss by rea- 
 son of the apprehended insolvency of such firm. 
 (Weetjen v. St. Paul & P. R. Co., 4 Hun. 
 (N. Y.), 529. But see sec. 1550, R. S., pro- 
 viding that "no person shall be employed or 
 continued abroad to receive and pay money 
 for the use of the naval service on foreign sta- 
 tions, whether under contract or otherwise, 
 who has not been, or shall not be, appointed by 
 and with the advice and consent of the Sen- 
 ate.") 
 
 The head of a department of the Federal Gov- 
 ernment is authorized, in the administration 
 of the duties of his office, to employ agents and 
 to determine when an exigency arises demand- 
 ing their employment. Section 3614, Revised 
 Statutes, recognizes this right. (U. S. v. Pot- 
 ter, 27 Fed. Cas. No. 16076; compare Weeks 
 V. U. S., 21 Ct. Cls., 124.) 
 
 Jurisdiction of courts over business of 
 department. — The court can not entertain an 
 ai)peal from the decision of the Secretary of the 
 Navy nor revise his judgment in any case where 
 the law authorized him to exercise his discre- 
 tion or judgment; nor can it by mandamus con- 
 trol his judgment or discretion in the matters 
 committed to his care in the ordinary discharge 
 of his official duties. The interference of the 
 courts with the performance of the ordinary 
 duties of the executive departments of the 
 Government would be productive of nothing 
 but mischief, and this power was never intend- 
 ed to be given to them. (Decatur v. Paulding, 
 14 Pet., 497; see also U. S. ex rel. Dunlap v. 
 Black, 128 U. S., 40; U. S. ex rel. Redfield v. 
 Windom, 137 U. S., 636; Boynton v. Blaine, 
 139 U. S., 306; U. S. v. Schurz, 102 U. S., 378; 
 Keim v. U. S., 177 U. S., 290; Ness v. Fisher, 
 223U. S.,683; Ray v. Garrison, 42 App. D. C. 34; 
 Martin v. Mott, 12 Wheat., 31, 32.) 
 
 Where the administration of a statute rests 
 within the discretion of the Secretary of the 
 Navy, the exercise of his discretion is not sub- 
 ject to review by the courts or by the accounting 
 officers. (Dyer v. U. S., 37 Ct. Cls., 337.) 
 
 The Secretary of the Navy can not be com- 
 pelled by mandamus to accept the highest bid 
 for a naval vessel offered for sale. He has dis- 
 cretionary power under the act of March 3, 1883 
 (22 Stat. 599), to reject any bid, and unless he 
 decides to accept it, there has been no sale. 
 "It is reasonably practicable for Congress to 
 provide on broad lines only for the control and 
 disposition of vessels belonging to the United 
 States, and wide discretion in respect of the 
 many details thereof has necessarily been com- 
 mitted to the discretion of the executive de- 
 partment. " (Goldberg v. Meyer, 37 App. 
 D. C, 282; affirmed Goldberg v. Daniels, 231 
 U. S., 218.) 
 
 The Secretary of the Navy can not be com- 
 pelled, by writ of mandamus, to record the 
 
 name of a person upon the register of retired 
 officers of the Navy as a paymaeter'a clerk 
 where the court is of the opinion that the peti- 
 tioner was not a paymaster's clerk within the 
 meaning of the law. "He was no more an 
 officer of the Navy than any one of the many 
 employees of the Navy Department at Wash- 
 ington. We rule, therefore, that he never pos- 
 sessed any right to retirement." (U. S. ex rel 
 Foreman v. Meyer, 38 App. D. C, 472; 227 
 U. S., 452.) 
 
 Where an officer of the Navy has been retired 
 by order of the President with the rank of cap- 
 tain, the Secretary of the Navy can not be com- 
 pelled, by writ of mandamus, to place his name 
 upon the retired list with the rank of rear 
 admiral. (U. S. ex rel Moser v. Meyer, 38 App. 
 D. C.,13.) 
 
 The courts will not by mandamus compel the 
 Secretary of War to change the position of an 
 officer's name in the Army Register, even 
 though it be conceded that an error exists there- 
 in. \\lien an officer claims that, by reason of 
 the erroneous position in which his name ap- 
 pears in the Army Register, he is deprived of a 
 rank or position that might be of benefit to him 
 in a future claim to promotion to the rank of 
 captain, nevertheless he is not deprived of any 
 right that he can appeal to a court of justice to 
 enforce. His rank as shown by the official 
 Army Register is conclusive of no such right 
 of promotion. "Promotion in a certain sense 
 is a new appointment, and to the position of 
 captain can only be effected by the nomination 
 of the President with the advice and consent 
 of the Senate. The mere entry, therefore, in 
 the official Army Register of the name and 
 rank of the appellant would not operate to 
 entitle him to, or to control, such promotion. 
 That must rest primarily vipon the judgment 
 and discretion of the President. " (U. S. ex 
 rel. Edwards v. Root, 24 App. D. C, 419, 431; 
 file 27231-8, Feb. 7, 1911.) 
 
 WTiile the wTit of mandamus may now be 
 regarded as having become a writ of right, there 
 is yet a sound judicial discretion reposing in 
 the courts, even though the petitioner for it 
 may be technically entitled to it, to refuse to 
 grant it when its issuance would not promote 
 the substantial ends of justice, or when it 
 would be without beneficial results to the 
 relator or petitioner. (Dancy v. Clark, 24 App. 
 D. C, 487; see file 27231-8, Feb. 7, 1911.) 
 
 A mere abstract right unattended by any 
 substantial benefit to the relator will not be 
 enforced by mandamus; the writ will issue to 
 enforce only a right the denial of which affects 
 the party's pecuniary interest, and the writ 
 must be denied where the value of the thing in 
 demand is insignificant and no substantial inter- 
 est is involved. (See file 27231-8, Feb. 7, 191L) 
 
 Where the petition for a writ of mandamus is 
 merely an attempt to obtain a decision of the 
 court with a view to using such dscision in fur- 
 therance of claims undoubtedly to be presented 
 Ijy petitioner later, it should not be granted. 
 (See file 27231-8, Feb. 7, 1911.) . "The grant 
 of the writ in this instance in the circumstances 
 in which we find the case can have but one 
 effect; that is, to encourage * * * in future 
 petty Litigation for the fees and emoluments of 
 the office. The writ of mandamus should not 
 
 345 
 
Sec. 417. 
 
 Pl.t. REVISED STATUTES. 
 
 Navy Department. 
 
 1)6 used for such purpose." (State r. Finlov, 
 74 Mo. App. 213, 216; see file 27231-8, Feb. 7, 
 1911.) 
 
 "The principle that there can be no inter- 
 ference 01 the courts with the performance of the 
 ordinary duties of the executive departments is 
 too well established for the court to group the 
 authorities." (Medrick r. U. S., 44 Ct. (Jls., 
 469, 481.) 
 
 The coiuts will hesitate before requiring the 
 executive heads of the departments of the Gov- 
 ernment to abandon their construction of de- 
 partmental regulations, and their administra- 
 tive action thereunder. (Hitchcock v. U. S., 
 22 App. D. C.,275.) 
 
 The national courts can not rightfully inter- 
 fere with executive action in any case where an 
 executive oflicer is authorized to exercise judg- 
 ment or discretion in the performance of an 
 official act. (Taylor v. Kercheval, 82 Fed. 
 Rep., 497.) 
 
 The coiuts can not properly interfere with 
 executive action, either by mandamus or in- 
 junction, in a matter in which the executive offi- 
 cer is authorized to exercise his judgment or dis- 
 cretion. (Dudley v. James, 83 Fed. Rep. , 345.) 
 
 The courts have no power by mandamus to 
 compel an executive officer to perform an act 
 which is discretionary with him. (U. S. v. 
 Leamen, 17 How., 225; Gaines v. Thompson, 
 7 Wall. ,347; Cox i'. U. S., 9 Wall., 298; V.^.v. 
 Black, 128 U. S., 40; U. S. v. Hitchcock, 205 
 U. S., 80, affirming 26 App. D. C, 290.) 
 
 The courts of the United States have no au- 
 thority to enjoin the officers of the Government 
 against performing any act not merely minis- 
 terial, but involving the exercise of discretion. 
 (McEbathr. Mcintosh, 16 Fed. Cas. No. 8781; 
 Gaines v. Thompson, 7 Wall., 347; Maese v. 
 Hermann, 17 App. D. C, 52, affirmed 183 
 U. S., 572; Cummins Co. v. Burleson, 40 App. 
 D. C, 500; Louisiana?). McAdoo, 234U. S., 627; 
 Bee also, to same effect. Enterprise Sav. Assn. 
 V. Zumstein, 67 Fed. Rep., 1000; Walker v. 
 Smith, 21 How., 579; Litchfield v. Register, 
 15 Fed. Cas. No. 8388, affirmed Litchfield v. 
 Richards, 9 Wall., 575; Koehler v. Barin, 25 
 Fed. Rep., 161; Sioux City, etc., R. Co. v. 
 U. S., 34 Fed. Rep., 835; Lane v. Anderson, 
 67 Fed. Rep., 563; Chapman v. Keindel, 46 
 Fed. Rep., 99.) 
 
 WTiere the head of a department in construing 
 a statute has placed a construction thereon 
 which is a possible one, and has acted accord- 
 ingly, his action will not be restrained by in- 
 junction. (O'Brient). Lane, 40App.D.C., 493.) 
 
 WTiere an act of Congress, proAiding for an in- 
 creaae and reorganization of the Army, imposed 
 upon the President and Secretary of War many 
 and complicated duties in carrying out its pur- 
 pose, it would require a Aery plain and unmis- 
 takable departure from its provisions to justify 
 the judiciary in interposing by mandamus to 
 control and reverse the action of the War De- 
 partment in its work of reorganization. (U. S. 
 1). Root, 22 App. D. C, 419.) 
 
 Mandamus may not lawfully issue to com- 
 mand or control an executive officer in the dis- 
 charge of those of his duties which involve the 
 exercise of his judgment or discretion, either in 
 the construction of the law or in determining the 
 existence or effect of the facts, though there 
 
 may l)e no other method of review or correction 
 provided by law. (KimberUn v. Commission, 
 105 Fed Rep., 653.) 
 
 The Secretiu-y of State is the confidential 
 ])olitical agent of the President for the execu- 
 tion of hiri will in matters committed to his dis- 
 cretion l)y the Constitution; and to coerce the 
 action of the Secretary is to attempt the coer- 
 cion of the President. (U. S. v. Hay, 20 App. 
 D. C.,576.) ^^ 
 
 ^\'hateve^ may be thought of the propriety of 
 a particular direction of the President to the 
 Secretary in respect to the business of his de- 
 
 {)artment, the latter simply compUes with the 
 aw in ol>eying that direction, and mandamus 
 will not lie to compel him to a contrary course. 
 (U. S. V. Bayard, 4 Mackey, D. C, 310.) 
 
 It being the duty of the Secretary of State, in 
 the conduct of every matter which constitutes 
 a part of the business of his department, to act 
 "in such manner as the President shall direct, " 
 and the acts of the Secretary in matters which 
 the President is authorized to direct being pre- 
 sumed to have been directed by the President 
 the Secretary can not be compelled by manda- 
 mus to pay over to a claimant moneys received 
 from Spain in satisfaction of a judgment in his 
 favor, as in refusing pajonent the Secretary is 
 presumed to be acting under the dii-ection of 
 the President and therefore according to law. 
 (U. S. V. Bayard, 4 Mackey, D. C, 310; but see 
 U. S. V. Bayard, 5 Mackey, D. C, 428.) 
 
 The decision of the head of a department in 
 restoring an attorney to good standing who had 
 previously been disbarred can not be rcAdewed 
 by the courts where the order of restoration is 
 not completely satisfactory to the attorney. As 
 the order of restoration was made in the exer- 
 cise of the Secretary's unquestioned jurisdic- 
 tion, the court has no power tc review his judg- 
 ment. (U. S. V. BalUnger, 35 App. D. C, 520.) 
 
 Under the Constitution the Supreme Coiut of 
 the United States has no power to issue a writ 
 of mandamus to the head of an executive depart- 
 ment in the city of Washington; the issue of 
 such writ being the exercise of an original juris- 
 diction not conferred by the Constitution. 
 (Marbury v. Madison, 1 Cranch, 137.) 
 
 The Supreme Court of the United States has 
 neither an original nor an appellate jurisdiction 
 to issue a mandamus to persons holding offices 
 under the authority of the United States. 
 (McClung V. Silliman, 2 Wlieat., 369.) 
 
 Mandamus will not lie to the head of a depart- 
 ment to direct a subordinate official to perform 
 a mere ministerial duty, such as countersigning 
 a check. If the duty be a mere ministerial one, 
 no order of the head of the department could be 
 justification for refusal on the part of the subor- 
 dinate to perform it. (Hitchcock v. U. S., 22 
 App. D. C, 275.) 
 
 The United States can not be bound by a 
 decision relating to its property rendered in 
 mandamus proceedings against the Secretary 
 of the Navy. The United States is not a party 
 to such mandamus proceedings, and can not 
 be "interfered with behind its back." (Gold- 
 berg V. Daniels, 231 U. S., 218.) 
 
 As to jurisdiction of the courts with reference 
 to the appointment, removal, and assignment to 
 duty of public officers, see cases noted under 
 section 416, Revised Statutes. 
 
 846 
 
Navy Departraent. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 417. 
 
 As to freedom of Federal officers from inter- 
 ference by State courts, see note to Constitution 
 Article I, section 8, clause 13. 
 
 For other decisions on subject of mandamus, 
 see note to section 236, Re\ised Statutes. 
 
 When courts will interfere with business 
 of department.— While the head of a govern- 
 mental department is not subject to mandamus 
 in any matter involving the exercise of discre- 
 tion, this writ may issue against him in relation 
 to matters wherein he performs a mere ministe- 
 rial duty. (Marbury v. ]\Iadison, 1 Cranch, 137 ; 
 Kendall v. U. S., 12 Pet., 524; Board of Liqui- 
 dation of Louisiana v. McCombs, 92 U. S., 531.) 
 
 In a case where it is sought by mandamus to 
 compel a public officer to perform a certain act, 
 the question is whether the act is of a ministe- 
 rial or of a judicial character, as those terms 
 have been defined and Hmited by the courts; 
 for there is no ministerial act to which the wut 
 would be applicable that does not in some meas- 
 lu-e and to some extent involve ttie exercise of 
 judgment and discretion; and there are acts 
 apparently judicial which ai-e not such in con- 
 templation of law. (Payne v. U. S., 20 App. 
 D.C., 581.) 
 
 Mandamus may issue to command an execu- 
 tive officer to act and to decide, though his act 
 and decision involve the exercise of judgment 
 and discretion; but in such case it may not di- 
 rect him in what particuar way or in whose favor 
 he shall decide. (Kimberhn v. Commission, 
 105 Fed Rep., 653.) 
 
 Courts will not compel executive officers to 
 perform their ofiicial duties, even though such 
 duties require an iuterpretatioti of the law, 
 unless they refuse to act at all, or the act which 
 it is sought to compel them to perform is purely 
 ministerial. (U. S. v. Windom, 137 U. S., 636.) 
 
 While the exercise of discretion by executive 
 officers acting witliin the scope of their au- 
 thority will not be questioned by mandamus, 
 when such ofiicers exceed their authority and 
 act without warrant of law, mandamus will lie. 
 (Griffin v. U. S., 30 App. D. C, 177, 188, 190; 
 31 App. D. C, 231, 232, 233, 234.) 
 
 The court is powerless to direct the action of 
 an executive officer by mandamus unless a 
 positive legal right is being invaded by him in 
 violation of a duty clearly imposed upon him 
 by law; and such duty must be so plain and 
 positive that he has no discretion left. (Moore 
 V. U. S., 32 App. D. C, 243.) 
 
 While the action of an officer clothed with a 
 discretion is not reviewable if exercised upon 
 matters left to his discretion, yet his judgment 
 as to the extent of his discretion under the law, 
 and the matters on which it may be exercised, 
 are re^^ewable on mandamus; and where a 
 discretion is abused and made to work injustice, 
 it may be controlled by mandamus. (U. S. v. 
 Custis, 35 App. D. C, 247; see also U. S. v. 
 Cortelyou, 26 App. D. C, 298.) 
 
 The necessary ground of an application for the 
 writ of mandamus against an executive officer 
 of the LTuited States is that it shall appear that 
 he has been charged by law with the perform- 
 ance of a specific official duty to which the 
 petitioner is entitled, and that he refuses to 
 perform that duty. (U. S. v. Bayard, 4 Mackey, 
 D.C.,310.) 
 
 While the lawful exercise of discretion by 
 public agents and officei's can not be controlled 
 by mandamus, the writ will Lie to compel the 
 person or body in whom the discretion is 
 lodged to proceed to exercise its discretion, 
 and in case the manner of such exercise has 
 been prescribed by law, to compel the person 
 or body not to proceed in any other way. 
 (Huidekoper II. Hadley, 177 Fed. Rep., 1.) 
 
 Mandamus is the proper remedy, and the only 
 remedy to compel the auditor of the Panama 
 Canal to pay the United States judge for the 
 Canal Zone the salary proAdded by law for the 
 latter, the auditor's refusal being based upon 
 an alleged indebtedness of the judge to the 
 United States. (Smith r. Jackson, 241 Fed. 
 Rep., 747; affirmed Smith r. Jackson (246 
 U. S., 388). 
 
 Mandamus will lie to compel the Secretary 
 of State to pay over money to which, under an 
 act of Congress, the petitioner has a clear legal 
 right; and the Secretarj^ can not justify under 
 an order from the President. (U. S. v. Bayard, 
 5 Mackey, D. C., 428.) 
 
 Mandamus will lie to compel the members of 
 the Board of Labor Employment at tlie United 
 States usivy yard in the city of Washington, to 
 register an applicant for examination for em- 
 ployment as mechanic or laborer, where they 
 rest their refusal solely on the gi'ound that the 
 applicant is not a citizen of the United States, 
 although a resident of Porto Rico, and owing 
 allegiance to the United States. Rule 5 of 
 the Civil Service Commission, promulgated by 
 the President April 15, 1903, which modifies 
 previous regulations of the Navy Department, 
 provides that "no person shall be admitted 
 to examination unless he be a citizen of or 
 owe allegiance to the United States"; and that 
 an applicant who claims citizenship by virtue 
 of residence in Porto Rico and who shows birth 
 or naturalization in Porto Rico, will not be 
 required to show further evidence of citizen- 
 ship. (U. S. V. Bowyer, 25 App. D. C, 121.) 
 
 The members of the United States Board of 
 Labor Employment at the United States navy 
 yard in the city of Washington are ministerial 
 officers, and their duty to register an applicant 
 for employment does not cease to be ministerial 
 because they rest their refusal of the registration 
 on the determination of a pure question of law, 
 involving the ascertainment of no fact what- 
 ever. (U. S. V. Bowyer, 25 App. D. C, 
 
 121-) 
 
 The covu-ts of the District of Columbia have 
 power by mandamus proceedings to compel the 
 head of an executive department in the city of 
 Washington to do a ministerial act. (Kendall 
 V. U. S., 12 Pet., 524; affirmed Decatur v. 
 Paulding, 14 Pet., 497.) 
 
 A cabinet officer may be enjoined from doing 
 an act which was not authorized by the statutes 
 under which he assumed to act. (American 
 School of Magnetic Healing v. McAnnulty, 187 
 U. S., 94; see also Caldwell v. Robinson, 59 
 Fed. Rep., 053; Frayser v. Russell, 9 Fed. Cas. 
 No. 5067; Kirwin v. Murphy, 83 Fed. Rep., 275, 
 170 U. 8., 205; Sang Lung v. Jackson, 85 Fed. 
 Rep., 502; Wong Wai v. Williamson, 103 Fed. 
 Rep., 1; Lane v. Watts, 234 U. S., 525, affinuing 
 41 App. D. C, 139.) 
 
 54641°— 22- 
 
 ■23 
 
 347 
 
Sec. 417. 
 
 Pt.e. REVISED STATUTES. 
 
 Navy Department. 
 
 \Miere a Cabinet officer reopens and read- 
 judicates a case decided by iiis predecessor, 
 there being no contention that tlie loriuer deci- 
 ftion was obtained by fraud, and the hiw ])ro- 
 viding that such decision sliuuhl bi* "final and 
 conclusive," a court of equity has jurisdiction 
 to re(|uire such officer to recop:nize and enforce 
 the prior decision. (Mickadiet r. Lane, 43 
 App. 1). ('., 41i.) 
 
 Subpcenas for heads of departments. — 
 See note to Constitution. Article II, section 1, 
 clause 1, and section 871, Revised Statutes; 
 see also note to section 418, Revised Statutes, 
 concerning power of courts to compel produc- 
 tion of public records and documents. 
 
 Decisions of heads of departments not 
 binding on courts. — If a suit should come 
 before the Supreme Court which Involved the 
 construction of any of the laws imposing duties 
 on the heads of the executive departments, the 
 court certainly would not be bound to adopt the 
 construction given by the head of the depart- 
 ment; and if they supposed his decision to be 
 wrong, they would of course so pronounce their 
 judgment. But the judgment of the court upon 
 the construction of a law must be given in a case 
 in which they have jurisdiction, and in which it 
 is their dutv to interpret the act of Congress. 
 (Decatur v. Paulding, ]4 Pet., 497.) 
 
 Whatever the conclusiveness of executiv'e 
 acts so far as executive departments are con- 
 cerned, IS a rule of administration, it has long 
 been settled that the action of executive officers 
 in matters of account and pajonent can not be 
 regarded as a conclusive determination when 
 brought in question in a court of justice. (Wis- 
 consin Cent. R. Co. v. U. S., 164 U. S., 205. 
 For other cases, see note to sec. 236, R. S.) 
 
 Where the head of a department is authorized 
 by law to ascertain "the legal heirs" of a dece- 
 dent, and it is pro\nded that his decision shall 
 be "final and conclusive," this does not mean 
 that he could arbitrarily ignore the leeal heirs 
 and decide in favor of a collateral heir or a 
 stranger in blood; and when he does this, his 
 decision is arbitrary and capricious and not 
 binding on the courts. (Mickadiet v. Lane, 
 43 App. D. C, 414.) 
 
 Decisions of heads of departments are 
 binding on their successors.^ — "The law is 
 well settled 'that puldic officers can not open 
 and reexamine cases decided 1 y their predeces- 
 sors except for fraud, mistake in matters of fact 
 arising from errors in calculations, or newly dis- 
 covered material cA-idence.' " (Maine v. tj. S., 
 36 Ct. Cls., 531, 553, quoting W'addell v. TJ. S., 
 25 Ct. Cls., 325, 328, and cases there cited.) 
 
 "It has long been held in the executive 
 departments that when a claim or controversy 
 between the United States and individuals 
 therein pending has once been fully considered, 
 and fnal action and determination had thereon 
 by any executive officer having jurisdiction of 
 the same, it can not be reopened, setaside, anda 
 different result ordered by any successor of 
 such officer, except for fraud, manifest error on 
 the face of the proceedings, such as a mathe- 
 matical miscalculation or newly discovered 
 CA-idence, presented within a reasonable time 
 and under such circumstances as would be a 
 sufficient cause for gi-anting a new trial in a 
 court of law. This ruling and practice of the 
 
 departments has been approved elsewhere and 
 has been sustained by the courts." (Rollins 
 and Presbrey v. U. S., 23 Ct. Cls., 123, citing, 
 9 Op. Atty.'Gen., 34; 12 Op. Atty. Gen., 172, 
 358; 14 Op. Atty. Gen., 387, 456; 14 Op. Atty. 
 Gen., 275; U. S. v. Bank of Metropolis, 15 Pet., 
 401 ; Lavelette's case, 1 Ct. Cls., 147; Jackson's 
 case. 19 Ct. Cls., 504; State of Illinois case, 20 
 Ct. Cls., 342; McKee's case, 12 Ct. Cls., 560; 
 Day's case, 21 Ct. Cls., 264; and opinion of the 
 Judiciary Committee of the Senate, reported 
 by Senator and Judge David Da\TS, quoted in 
 Jackson's case, above referred to.) 
 
 "The doctrine of res judicata [a thing adju- 
 dicated — meaning that a specific case which 
 has once been finally adjudicated can not l^e 
 reopened] as being applicable to the jiuisdic- 
 tion of the head of a department is fully recog- 
 nized by this court in several adjudications." 
 (Day V. U. S., 21 Ct. Cls., 264.) 
 
 "It is desirable upon all accounts that there 
 should be an end of controver.'^ies. * * * 
 Unless such is the case, as each successive 
 incumbent of one of the great administrative 
 offices assumes his position he may be com- 
 pelled to review all the decisions of his prede- 
 cessors which have been against applicants and 
 claimants." (15 Op. Atty. Gen., 315.) 
 
 It is "a rule of action prescribed to itself by 
 each administration, to consider the acts of its 
 predecessors conclusive, as far as the Executive 
 is concerned. It is but a decent degree of 
 respect for each administration to entertain of 
 its predecessor, to suppose it as well qualified 
 as itself to execute the laws according to the 
 intention of their makers; and not to set an 
 example of review and reversal, which, in its 
 turn, may be brought to bear upon itself, and 
 thus keep the acts of the Executive perpetually 
 unsettled and afloat. In conversing with 
 President Adams on this subject, I understood 
 him to concur in the general rule of considering 
 all acts of the preceding administration as 
 final; and, although pailial injuries may now 
 and then remain unredressed by the operation 
 of this, in common with all other general rules, 
 yet it is better to bear that partial evil, or leave 
 it to legislative redress, than to introduce the 
 more extensive, incalculable evils which must 
 result from considering all the past acts of all 
 the past Executives as open to reconsideration 
 and readjudication, at the pleasure of the indi- 
 viduals who were interested in them. And 
 if a decision made in regard to these gentlemen, 
 eight years ago, during the presidency of ^Mr. 
 Monroe, is open to reA-iew and reversal, I do 
 not see upon what principle of discrimination 
 we can refuse to reA'iew and reverse a decision 
 made during the presidency of Mr. Washington, 
 upon the application of any other indi\idual 
 supposing liimself aggrieved by it." (2 Op. 
 Atty. Gen., 9.) 
 
 If the present administration has authority 
 to rcA-iew the acts of its predecessors, "the Exec- 
 utive which is to follow us must have the like 
 authority to re\-iew and unsettle our decisions, 
 and to set up again those of our predecessors; 
 and upon this principle, no question can be 
 con.sidered as finally settled. The establish- 
 ment of such a principle, besides the uncer- 
 tainty and confusion just noticed, would throw 
 upon the Executive a load of duties which it 
 
 348 
 
Navy Department. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 417. 
 
 could not possibly sustain. Each administra- 
 tion has already as much as it can do, in the 
 current business which belongs to it; but if to 
 this is to be superadded the burden of reviewing 
 all the acts of preceding administrations by 
 which individuals may suppose themselves to 
 have been aggrieved, it is manifest that the 
 biu-den will become immediately insupport- 
 able." (2 Op. Atty. Gen., 9.) 
 
 "The principle has been so frequently de- 
 clared that the final decision of a matter before 
 the head of a department is binding upon his 
 successors in the same department, under cer- 
 tain well-defined exceptions, that it is now 
 entitled to be regarded as a settled rule of 
 administrative law. (See on this subject. 
 United States v. Bank of Metropolis, 15 Pet., 
 401; Opinion of Mr. Wirt, 2 Opins., 9; of Mr. 
 Taney, 2 Opins., 464; of Mr. Nelson, 4 Opins., 
 341; of Mr. Toucey, 5 Opins., 29; of Mr. Johnson, 
 5 Opins., 123; of Mr. Black, 9 Opins., 101, 301-2, 
 387; of Mr. Stanberry, 12 Opins., 358; of Mr. 
 Hoar, dated Apr. 26, 1869, in relation to the 
 case of Admiral Goldsborough , ante, p. 33; and 
 another, dated May 5, 1870, in relation to the 
 claim of George Chorpenning, ante, p., 226; all 
 of which authorities are cited and approved in 
 a recent opinion addressed to you by the Attor- 
 ney General, dated Mar. 7, 1871, in the case of 
 R. C. Sargent and others against the Western 
 Pacific Railroad Company.) None of the ex- 
 ceptions referred to are shown to exist in the 
 case submitted; and thus, as it seems to me, the 
 rule just stated being properly applicable here, 
 under its operation you clearly have no author- 
 ity to disturb the decision of your predecessor 
 or reopen the case finally determined by him. " 
 (13 Op. Atty. Gen., 457.) 
 
 The head of a depaitment is without jurisdic- 
 tion to reopen and readjudicate a case finally 
 decided by his predecessor," there being no alle- 
 gation that the previous decision was obtained 
 by fraud, and it being, under the law, "final 
 and conclusive." In such a case, it was held 
 that a coiu-t of equity has jurisdiction to order 
 the Secretary to recognize and enforce the for- 
 mer decision, upon petition of parties injuii- 
 ously affected by its reversal. (Mickadiet v. 
 Lane, 43_App. D. 0., 414.) 
 
 The principles enunciated in the authorities 
 above quoted have been consistently followed 
 by the Navy Department in the past with 
 reference to decisions of previous administra- 
 tions. (File 5252-32, re legality of appoint- 
 ment to the Naval Academy of Midshipman 
 Douglas, and 28 Op. Atty. Gen., 180, in same 
 case; file 26256-111:2, naval service of Captain 
 Owen S. Willey, U. S. R. C. S.; file 11130-6, 
 application of Captain Julius S. Turrill, U. S. 
 M. C, for change in date of commission; file 
 27231^2, Civil-War service of Captain Robert 
 E. Impey, Commander Charles A. Adams, 
 Commander Dennis W. Mullan, and Chief 
 Boatswain John B. F. Langston, U. S. N., 
 retired, and file 27231^2:2 and 3, in same cases; 
 see also file 20971-19:1, Apr. 14, 1913; file 
 26252-71:2, Aug. 29, 1913; file 26836-15, Nov. 
 17, 1913.) 
 
 For other cases, see note to section 236, Re- 
 vised Statutes. 
 
 • Decision not binding on successors ex- 
 cept as to specific case adjudicated. — The 
 
 head of an executive department of the Govern- 
 ment has the right to reverse a departmental 
 practice, based on the decisions of a predeces- 
 sor, even if a long-continued one, and such a 
 former decision can be said to have no elements 
 of estoppel or res judicata save in respect of 
 subject matter finally settled and closed under 
 it. (Payne v. Houghton, 22 App. D. C, 234; 
 Smith i). Payne, 22 App. D. C, 463.) 
 
 But "it is almost as important that the law 
 should be settled permanently as that it should 
 be settled correctly. Its rules should be fixed 
 deliberately and adhered to firmly, imless 
 clearly erroneous. Vacillation is a serious 
 evil." (File 5252-68. May 15, 1915, quoting 
 Oilman v. Philadelphia, 3 Wall., 724.) 
 
 According to the doctrine of stare decisis, 
 where a statute has been construed by the 
 Navy Department in a previous administration 
 and such construction is not clearly erroneous, 
 the matter should be regarded as settled so far 
 as the law is concerned, and the previous con- 
 struction should not be disturbed. (File 5252- 
 68, May 15, 1915.) 
 
 The Navy Department having decided in a 
 specific case that the law does not prohibit the 
 appointment of an alien to the Naval Academy, 
 although he can not be commissioned as an 
 officer without in the meantime becoming a 
 citizen, and this decision not being "clearly 
 erroneous," it should be adhered to as the cor- 
 rect interpretation of the law, but the regula- 
 tions may be amended so as to prohibit the 
 appointment of aliens to the Naval Academy, 
 this not being contrary to statute. (File 5252- 
 68, May 15, 1915.) 
 
 No change in a usage can have a retroactive 
 effect, but must be limited to the future. (U. 
 S. V. Macdaniel, 7 Pet., 1, 15; see also Camp- 
 bell V. U. S., 107 U. S., 407.) Where payments 
 have been made under a long-continued prac- 
 tice of the administrative department, sanc- 
 tioned by the accounting officers of the Treas- 
 ury, payments so made by disbursing officers 
 prior to the promulgation of a Comptroller's 
 decision reversing the former construction of 
 the law, if otherwise correct, will be passed to 
 their official credit. (20 Comp. Dec, 182; see 
 also Comp. Dig., 295, 296. In this connec- 
 tion, consult Muhlker v. New York & Harlem 
 R. Co., 197 U. S., 544; Gelpcke v. Dubuque, 1 
 WaU., 175; Ohio Life & Trust Co. v. Debolt, 16 
 How., 432; compare Weber v. Rogan, 188 U. S., 
 10, and cases there cited.) 
 
 Jurisdiction of Secretary of the Navy 
 and accounting officers of the Treasury.— 
 See cases collected on this subject in note to 
 section 236, Revised Statutes. 
 
 Secretary of the Navy will not decide 
 hypothetical questions. — The official busi- 
 ness of the Navy Department is such that it is 
 compelled to decline answering hypothetical 
 questions, assuming facts which may never 
 actually be presented to the person requesting 
 decision. As was stated by the Attorney 
 General in an opinion to the Secretary of the 
 Treasury, "you will readily perceive the 
 incon\^enience of giving, upon a hypothetical 
 case, an opinion which, upon the consideration 
 of an actual case, might require modification 
 on account of circumstances not imagined, 
 and, therefore, not considered in the prepara- 
 
 349 
 
Sec. 417. 
 
 PL 2. REVISED STATUTES. 
 
 Navy Department. 
 
 tion of the opinion." (File 26287-1776, Oct. 
 28, 1913, citins; 13 Op. Atty. Gen., 531. See 
 in this fonn('(^tion. note to sec. 3r>0, R. S.) 
 
 Legal liability of Secretary for official 
 acts. — Th(> head of a department incurH no 
 personal liability in appro^^nQ; by his si,i:;nature 
 voncherg or other instrnnients in writins; in- 
 vohing the expenditure of public moneys if 
 he acts in reliance upon properly chosen sub- 
 ordinates \vhose ability and pood faith he has 
 no rea-son to question, even if it turns out that 
 the voucher or other instrument should not 
 haA-e been executed. The head of a depart- 
 ment must, of course, exercise due care in 
 every ofRcial act connected wnth his depart- 
 ment. But as his ])ersonal investigation of 
 every detail is in the nature of things impos- 
 sil)le, he has a right to act in reliance upon 
 properly chosen subordinates whose ability and 
 good faith he has no reason to question. (20 Op. 
 Atty. Gen., 573.) 
 
 The same general considerations of public 
 policy which demand, for judges of courts of 
 superior jurisdiction, immunity from civil 
 siuta for damages arising from acts done by 
 them in the course of the performance of their 
 judicial functions, apply to a large extent to 
 oflicial communications made by heads of 
 executi^-e departments when engaged in the 
 discharge of the duties imposed upon them by 
 law. The inteiests of the people requiie that 
 due protection be accorded to them in respect 
 of tlieir official acts. As in the case of a judicial 
 officer, a distinction exists between action 
 taken b>' the head of a department in reference 
 to matters which are manifestly or palpably 
 beyond his authority and action having more 
 or less connection mth general matters com- 
 mitted by law to his control or supervision. 
 Whatever difficulty may aiise in applying these 
 principles to particular cases in which the 
 richts of the citizen may have been materially 
 imjiaired by the inconsiderate or wrongful 
 action of the head ot a department, it is clear 
 that he can not be held liable to a chnl suit for 
 damages on account of official communications 
 made by him pursuant to an act of Congress 
 and in respect of matters witliin his authoiity 
 by reason of any personal motiA'e that might 
 be alleged to have prompted his action, for 
 personal motives can not be imputed to duly 
 authorized otficial conduct. In exercising the 
 functions of his office the head of an executive 
 dej)artment, keeping within the limits of his 
 authority, should not be under an apprehension 
 that the motives that control his official conduct 
 may at any time become the subject of inquiry 
 in a civil suit for damages. It would seriously 
 cripple the ])roper and effective administration 
 of public affairs as intrusted to the executive 
 branch of the Goveniment if he were subjected 
 to any such restraint. He may have legal 
 authority to act, but he may have such large 
 discretion in the premises that it will not always 
 be his absolute duty to exercise the authority 
 with which he is invested. But if he acts, 
 having authority, Ms conduct can not be made 
 the foundation of a suit against him personally 
 for damages, even if the circumstances show that 
 he is not disagreeably impressed by the fact that 
 his action injuriously affects the claims of par- 
 ticular individuals. Where the head of a 
 
 department does not exceed hie authority nor 
 pass the line of his duty the motive that im- 
 pelled him to act is wholly immaterial. Even 
 though he acted maliciously, that could not 
 change the law. (Spalding v. Vilas, 161 U. S., 
 483; see al.so Hodgson v. Dexter, 1 Cranch, 345; 
 Lamar v. Browne, 92 U. S., 187.) 
 
 A report made by the chief of a bureau or 
 office in a department to the head of the depart- 
 ment as to the merits of a claim for a medal of 
 honor which has been referred to him for in- 
 vestigation, which report contains nothing that 
 does not relate to or reflect upon the alleged 
 questionable character of the claimant and the 
 want of just foundation for his claim, is abso- 
 lutely privileged, notwithstanding the motive 
 which may have actuated the maker, or the 
 mistakes of fact which it may contain. If the 
 report complained of as a libel had been made 
 by the head of the department to the President 
 for his action, it could hardly be contended for 
 a moment that an action for libel could l)e main- 
 tained against the Secretary. The latter is the 
 regularly constituted organ of the President for 
 the administration of the military establish- 
 ment of the nation; and rules and orders pub- 
 licly promulgated through him must be received 
 as those of the Executive. And as it is impos- 
 sible for a single individual to perform in person 
 all the various duties assigned to the particular 
 department of which he is head, he must of 
 necessity, under proper orders and regulations, 
 perform the larger portion of euch duties 
 through the agencies of the heads of bureaus 
 and divisions of his department. But the work 
 when done is in contemplation of law the work 
 of the department, and is entitled to all the 
 privilege and protection that would attach to 
 it if done by the Secretary in person. It is, 
 therefore, not the particular position of the 
 party making the report or communication that 
 entitles it to absolute privilege, so much as the 
 occasion of making it and the reasons of public 
 policy for the immunity. (De Arnaud v. 
 Ainsworth, 24 App. D. C, 167; 5 L. R. A. 
 (N. S.), 163.) 
 
 The question of motive is not material. A 
 party is not liable for the motives with which 
 he discharges an official duty; nor is he liable 
 for any mistake of fact he may commit in the 
 course of the exercise of that duty. Public pol- 
 icy affords alisolute protection and immunity 
 for what may be said or written by an officer 
 in his official report or communication to a 
 superior, when such report or communication 
 is made in the course and discharge of official 
 duty. Otherwise the perfect freedom which 
 ought to exist in the dischai^e of public duty 
 might be seriously restrained, and often to the 
 detriment of the pubUc service. Of course, 
 when a party steps aside from duty and intro- 
 duces into his report or communication de- 
 famatory matter wholly irrelevant and foreign 
 to the subject of inquiry, a different question 
 is presented. (De Arnaud v. Ainsworth, 24 
 App. D. C, 167; 5 L. R. A. (N. S.), 163.) 
 
 Section 1547 of the Revised Statutes, by ex- 
 press terms, provides that orders, regulations, 
 and instructions issued by the Secretary of the 
 Navy are to be recognized as the regulations of 
 the Navy. One of these regulations directs 
 that "all officers through whom communica- 
 
 350 
 
Navy Department. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 417. 
 
 tions from inferiors are to be forwarded to the de- 
 partment, one of the bureaus, or any authority 
 higher than themselves, must forward the same, 
 if couched in respectful language, as soon after 
 being received as practicable, and they will 
 invariably state their opinion in writing, by 
 indorsement or otherwise, in relation to every 
 subject presented for decision." [Similar pro- 
 vision was contained in Art. 1-5305, Naval 
 Instructions, 1913.] M. was a professor at the 
 United States Naval Academy at Annapolis, 
 and placed his resignation in the hands of W., 
 then superintendent of the academy, to be for- 
 warded to the Secretary of the Navy for his 
 decision. The resignation was forwarded by 
 W. with his indorsement thereon of reasons 
 why it should be accepted. In an action for 
 libel, based upon this indorsement, brought by 
 M. against W., it was held, (1) that the in- 
 dorsement in question did not fall within the 
 class of communications which are absolutely 
 privileged; (2) that it was, however, privi- 
 leged to the extent that the occasion of making 
 it rebutted the presumption of malice, and 
 threw upon the plaintiff the onus of proving 
 that it was not made from duty, but from actual 
 malice and without reasonable and probable 
 (Maurice 'v. Worden, 54 Md., 233.) 
 
 cause. 
 
 The mere sending to the head of a depart- 
 ment, by a subordinate officer in the course of 
 official duty, of a communication reflecting 
 upon the character and conduct of a subordi- 
 nate is not such a publication as is essential to 
 maintain an action for a libel. (Gardner v. 
 Anderson, 9 Fed. Cas. No. 5220.) 
 
 Handing to another a copy of a Senate docu- 
 ment containing a report of an official of the War 
 Department adverse to a claim for a medal of 
 honor for distinguished service in the Army is 
 not a libelous publication of the matter therein 
 contained, since the report is a public document 
 which every one may circulate, receive, and 
 inspect. (De Amaud v. Ainsworth, 24 App. 
 D. C, 167; 5 L. R. A. (N. S.), 163.) 
 
 For decieions concerning the production in 
 court of papers on file in the departments, for 
 use in libel suits against public officers, see note 
 to section 418, Revised Statutes. 
 
 "No man in this country is so high that he is 
 above the law. No officer of the law may set 
 that law at defiance with impunity. All the 
 officers of the Government, from the highest to 
 the lowest, are creatures of the law and are 
 1)oimd to obey it. It is the only supreme power 
 in our system of Government, and every man 
 who by accepting office participates in its func- 
 tions is only the more strongly bound to submit 
 to the supremacy and to observe the liabilities 
 which it imposes upon the exercise of the 
 authority which it gives." (U. S. v. Lee, 106 
 U. S., 196.) 
 
 Executive Federal officers are personally lia- 
 ble at law in the ordinary forms of action for 
 illegal official ministerial acts or omissions to 
 the injury of an indi^ddual. (U. S. v. Kendall, 
 26 Fed. Cas. No. 15517; aflSrmed Kendall v. 
 U. S., 12 Pet., 526.) 
 
 An officer is bound to use that care and dili- 
 gence in the discharge of his duties that a con- 
 scientious and pnident man, acting under a 
 just sense of his obligations, would exercise 
 under the circumstances of a particular case; 
 
 and if he fails and neglects to do so he is culpa- 
 ble. (U. S. V. Baldridge, 11 Fed. Rep., 552.) 
 
 Where a public act or order rests in executive 
 discretion, neither the President nor his 
 authorized agent is personally ci\'illy respon- 
 sible for the consequences. (Durand v. Hol- 
 lins, 8 Fed. Cas. No. 4186.) 
 
 For other decisions concerning legal liability 
 of public officers, see notes to Constitution, 
 Article II, section 1, clause 1, and Article I, 
 section 8, clause 13. 
 
 The signature of the head of a depart- 
 ment does not require the use of pen and ink, 
 held and guided by the hand of the person him- 
 self. The imjjress of his name with a stamp or 
 copperplate by himself or in his presence ia 
 legally sufficient. (1 Op. Atty. Gen., 670.) 
 
 The head of a department can not delegate 
 authority to other officers to sign his name in 
 attestation of commissions, Treasury warrants, 
 passports, and the Like without authority of 
 Congress. If the time occupied in signing his 
 name becomes a serious impediment to the 
 prompt p<'rformance of his merely intellectual 
 duties, relief should be obtained from Congress. 
 (7 Op. Atty. Gen.. 594.) 
 
 The abbreviation employed by the head of 
 a department is in legal contemplation his 
 signature, if used for that purpose; and if in 
 any case it should become material to estab- 
 lish it by evidence, the same testimony would 
 avail as would suffice to verify his name written 
 out at length. (4 Op. Atty. Gen. 187.) 
 
 The signature of a public official, in the form 
 of a facsimile stamp affixed by a subordinate 
 under the direction of such officer and ini- 
 tialed by the subordinate authorized to affix the 
 same, is a valid signature and conveys the au- 
 thority of the officer in all cases where he is 
 authorized to act. (31 Op. Atty. Gen-., 349, 
 file 22724-39:3.) 
 
 Secretary of the Navy may exercise 
 powers vested by law in subordinates. — 
 The office of Commandant of the Marine Corps 
 is imder the direct supervision and control of 
 the Secretary of the Na\y, and its duties may 
 be performed by him or by the Acting Secretary 
 while the office of commandant is vacant. (28 
 Op. Attv. Gen., 486, citing Swaim v. U. S.. 165 
 U. S., 553, 28 Ct. Cls., 221, in which the courts 
 held that "a military officer can not be invested 
 with greater authority by Congress than the 
 Commander in Chief.") 
 
 Similarly, held that the Secretary' or Acting 
 Secretary of the Navy, as the case may be, may 
 sign all mail which requires the signature of 
 the Chief of the Bureau of Steam Engineering 
 during a vacancy in that office. (File 22724-7e, 
 May 14. 1909; compare Williams Eng. and 
 Cont. Co. V. U. S., 55 Ct. Cls., 349.) 
 
 Power of Secretary to reprimand sub- 
 ordinates. — "No doubt the Secretary of the 
 Navy may, within his discretion, when he 
 believes it for the good of the service, send 
 communications to subordinate officers which 
 may be in the nature of a reprimand. This 
 right is necessarily vested in him as the chief 
 officer of a department; but such communica- 
 tions can not be regarded in the nature of a pun- 
 ishment as defined in the Regulations." (28 
 Op. Atty. Gen., 625.) 
 
 351 
 
Sec. 418. 
 
 PL 2. REVISED STATUTES. 
 
 Navy Department. 
 
 "The assumption that the Secretary of the 
 Navy can not pronounce a rebuke, public or 
 private, upon an oflicer for a breach of dis- 
 cipline, or a failure in the performance of duty, 
 without ol)tiuning the sanction of a comt, is 
 an unlieard of proposition. The depai-traent 
 impartially awai'ds praise or blame to the officer 
 who deserves one or the other, as occasion may 
 arise; and the practice is as old as the depart- 
 ment itself. Cases have occurred where the 
 department, without trial, has pronounced 
 emphatic reprimand upon officers in general 
 orders. The publicity that is given either to its 
 commendation or its reproof is a matter within 
 its own discretion, in the exercise of which it 
 consults only the public interests." (File 
 20251-2993, Mar. 10, 1910, quoting letter of 
 Jan. 14, 1891, to Commander George C. Reiter, 
 U. S. Navy; see also, G. C. M. Order No.9, Jan. 
 31, 1893, citing precedents, and see file 26283- 
 522, Feb. 12, 1913.) 
 
 The Secretary of the Navy has authority 
 to detail enlisted men of the Marine Corps to 
 guard and protect property of the Government 
 placed on exhibition at an exposition. (20 Op. 
 Atty. Gen., 576); to order a naval detachment 
 to Raleigh, N. C., to participate in ceremonies 
 attending the unveiling of monument to late 
 Ensign Bagley (file 3679-2); and to detail the 
 Maiine Band to appropriate duty anywhere 
 (file 4288-6, Apr. 22, 1907), including its par- 
 ticipation in a charity fete (file 4288-4, Apr. 18, 
 1907). 
 
 The act of June 3, 1916, section 35 (39 Stat., 
 188), does not prohibit the detail or permitting 
 of enlisted men, including members of the Ma- 
 rine Band, to engage in their profession in civil 
 life without renumeration, even though this 
 may possibly interefere with the employment 
 of local ci\dlians. (File 4924-435, June 20, 
 1916). 
 
 By act of August 29, 1916 (39 Stat., 612), 
 members of the Marine Band are prohibited 
 as individuals from furnishing music in com- 
 petition with civilian musicians, and from ac- 
 cepting renumeration for furnishing music ex- 
 cept under special circumstances when author- 
 ized by the President. 
 
 As to detail of enlisted men to duty in an 
 executive department, see statutes noted under 
 section 416, Revised Statutes, "Restrictions 
 on employment of clerical services." 
 
 Sec. 418. [Department property, books, and records.] The Secretary of the 
 Navy shall have the custody and charge of all the books, records, and other 
 property now remainmg m and appertaming to the Department of the Navy, 
 or hereafter acquired by it. — (30 Apr., 1798, c. 35, s. 3, v. 1, p. 554.) 
 
 Miscellaneous. — The head of a department 
 should see that contracts wliich belong to hia 
 office are properly and faithfully executed, 
 whether he made the contracts or conferred 
 authority on others to do so; and if he becomes 
 satisfied that contracts wliicn hf made are being 
 fraudulently executed, or that contracts made 
 by others were made in disregard of the rights 
 of the GoA'ernment, or with intent to defraud, 
 it is his duty to interpose, arrest execution 
 thereof, and adopt measures to protect the Gov- 
 ernment against the dishonesty of his subordi- 
 nates. (U. S. V. Adams, 7 Wall., 463.) 
 
 Navy regulations are binding on the sub- 
 ordinates of the Secretary of the Navy, but do 
 not bind the Secretary himself. (See U. S. v. 
 Bm-ns, 12 Wall., 246; Smith v. U. S., 24 Ct. Cls., 
 215; and 9 Comp. Dec, 280; noted under sec. 
 161, R. S., "IX. Waiver of Regulations.") 
 
 The presumption is that officers of the Gov- 
 erment perform their duty, and the presump- 
 tion is strengthened in a particular case by the 
 fact that heavy statutory penalties will be in- 
 cmred by neglect. (Crussell v. U. S., 7 Ct. 
 Cls., 276, publishing decision of Supreme 
 Court.) 
 
 The failure of an officer of the United States 
 to discharge a plain duty imposed on him by 
 law does not charge the Government itself with 
 the loss caused by the default. (In re Schmalz, 
 4 Ct. Cls., 142.) 
 
 All the officers of the Government, from the 
 highest to the lowest, are but agents with dele- 
 gated powers; and if they act beyond the scope 
 of those delegated powers, their acts do not 
 bind the principal. (U. S. v. Maxwell, etc., 
 Co., 21 Fed. Rep., 19; see also Steele v. U. S., 
 113 U. S., 128, holding Government not bound 
 by illegal action of Navy Department, noted 
 under sec. 236, R. S., VIII, (C), 3.) _ 
 
 All instructions from the executive which 
 are not supported by law are illegal, and no 
 inferior officer is bound to obey them. (Gil- 
 christ V. Collector, 10 Fed. Cas. No. 5420; see 
 cases on this subject collected in note to Con- 
 stitution, Art. I, sec. 8, clause 13.) 
 
 The fact that one is an officer of the Navy of 
 the United States, and is acting under orders, 
 gives him no justification for the retention_ of 
 premises hehl by him under that authority 
 against the claim of the true owner. (San 
 Francisco Sav. Union v. Irwin, 28 Fed. Rep., 708. 
 
 Accounts, property : ' ' Clothing and small stores ' ' 
 fund created by act of June 30, 1890 (26 
 Stat., 197). 
 
 Accounts: "Naval supply account" was cre- 
 ated and the "naval supply fund" abol- 
 ished by acts of June 25, 1910 (36 Stat., 792), 
 and March 4, 1911 (36 Stat., 1279) ._ 
 
 Accounts: Property returns to be audited and 
 responsibiUty for losses determined by 
 Paymaster General of the Navy and officer 
 in charge of the Quartermaster's Depart- 
 ment of the Marine Corps. (Act Mar. 29, 
 1894, 28 Stat., 47.) 
 
 Army supplies: Transfer of, as needed, to naval 
 or marine officers commanding detachments 
 on shore, was required by sections 1135 and 
 1143, Revised Statutes. 
 
 Bids may be rejected under certain circum- 
 stances. (Sees. 3722 and 3724, R. S.) 
 
 Coal produced by certain mines in Alaska re- 
 quired to be sold to United States for use 
 of Navy at price fixed by President. (Act 
 May 28, 1908, sec. 2, 35 Stat., 424.) 
 
 Coal on Government lands in Alaska may be 
 mined under the direction of the President, 
 
 352 
 
Navy Department. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 418. 
 
 when necessary for the Navy. (Act Oct. 
 20, 1914, 38 Stat., 741.) 
 Congressional Record: One bound copy to be 
 furnished to the libraiy of the Na\'y De- 
 partment and to the Naval Observatory. 
 (Act Jan. 12, 1895, sec. 73, 28 Stat., 617). 
 Contracts for supplies are to be made by or 
 under direction of Secretary of the Navy^ 
 (Sec. 3714, R. S., as amended by act Feb. 
 27, 1877, 19 Stat., 249.) 
 Contracts for provisions are to be awarded to low- 
 est responsible bidder on each item. (Act 
 Mar. 4, 1913, 37 Stat., 904.) 
 Contracts or purchases are not to be made unless 
 authorized by law or under appropriation 
 adequate to their fulfillment, except in the 
 War and Navy Departments for clothing, 
 subsistence, forage, fuel, quarters, trans- 
 portation, or medical and hospital supplies, 
 which, however, shall not exceed necessi- 
 ties of current year. (Sec. 3732, R. S.,as 
 amended by act June 12, 1906, 34 Stat., 255) 
 Contractors required to furnish bond or certi- 
 fied check. (Sec. 3719, R. S., as amended, 
 act May 25, 1896, 29 Stat., 136, and Dec. 11, 
 1906, 34 Stat., 841.) _ 
 Contractors liable to forfeiture, as liquidated 
 damages, for failure to perform. (Sec. 
 3720, R. S., as amended, June 22, 1910, 36 
 Stat., 591.) 
 Contractors may be ])aid reservations on deliv- 
 eries. (Sec. 3730, R. S.) 
 Contractors may be paid partial payments dur- 
 ing progress of work. (Acts Aug. 22, 1911, 
 37 Stat., 32; Oct. 6, 1917, sec. 5, 40 Stat., 
 383.) 
 Contractor's name required to be marked on 
 
 supplies. (Sec. 3731, R. S.) 
 Copies of books, records, papers, or documents, 
 under seal of department, admissible in evi- 
 dence in Federal courts. (Sec. 882, R. S.) 
 Domestic steel material to be used in construc- 
 tion of naval vessels. (Act Aug. 3, 1886, 
 sec. 2, 24 Stat., 215, as amended by act May 
 4, 1898, 30 Stat., 390.) 
 Domestic hemp to be purchased for Navy, sub- 
 ject to price and quality. (Sec. 3725, 
 R. S.) 
 Domestic articles to be preferred in purchases 
 
 for Navy. (Sec. 3728, R. S.) 
 Exchange of typewriters, adding machines, and 
 other labor-sa\ing devices, authorized in 
 part pavment for new macliines. (Act 
 Mar. 4, 1915, sec. 5, 38 Stat., 1161.) 
 Flags captured by Na\'y to be collected by 
 Secretary of Navj' and delivered to the 
 President. (Sees. 428, 1554, 1555, R_. S.) 
 Foreign materials for construction or repair and 
 equipment of naval vessels mav be im- 
 ported without dutv. (Act Oct' 3, 1913, 
 sec. IV, J, subsecs. o, 6, 38 Stat., 196.) 
 Foreign war material may be purchased in 
 emergencies and imported free of duty. 
 (Act Mar. 4, 1913, 37 Stat., 896. See also 
 act June 30, 1914, 38 Stat., 399.1 
 Foreign supplies not to be purchased in excess 
 of prevailing market prices. (Sec. 3723, 
 R. S.) 
 Gifts of flags used for draping coffins may be 
 made by Secretary of the Navy to relatives 
 of deceased, or to schools, patriotic orders, 
 
 or societies. (Act June 30, 1914, 38 Stat. 
 406.) 
 
 Gifts to vessels of silver, colors, books, and 
 articles of equipment or furniture, to be 
 accepted and cared for by Secretary of 
 the Navy. (Act May 20, 1908, 35 Stat., 
 171.) 
 
 Government publications (one copy) are to be 
 furnished by the Superintendent of Docu- 
 ments to the libraries of the Executive De- 
 partments, and of the United States Mili- 
 tary and Naval Academies, which libraries 
 are constituted designated depositories of 
 such publications. (Act Jan. 12, 1895, sec. 
 98, 28 Stat., 624.) 
 
 Inventory of property pertaining to Navy is 
 required to be kept by the Secretary of the 
 Navy. (Sec. 197, R. S.; amended by act 
 Feb. 27, 1877, sec. 1, 19 Stat., 241.) 
 
 Inventory to be kept of all supplies pertaining 
 to Naval Establishment, and annual report 
 thereof made to Congress, by Bureau of 
 Supplies and Accounts. (Act Mar. 2, 1889, 
 25 Stat., 817.) 
 
 Life-saving dress authorized as part of naval 
 equipment. (Act Mar. 3, 1883, 22 Stat., 
 475.) 
 
 Loan of naval vessels to nautical schools, author- 
 ized by act of March 4, 1911 (36 Stat., 1353). 
 
 Loan or permanent transfer of naval vessels 
 to U. S. Shipping Board, authorized by 
 act of September 7, 1916, section 6 (39 
 Stat., 730). 
 
 Loan of naval equipment to military schools, 
 authorized by act of March 3, 1901 (31 Stat., 
 1440), as amended by act of June 29, 1906 
 (34 Stat., 620), and June 24, 1910 (36 Stat., 
 613). 
 
 Loan or gift of condemned ordnance, gims, and 
 cannon balls by the Secretarjr of the Navy 
 to soldiers' monument associations, posts 
 of Grand Army of the Republic, and 
 municipal corporations, authorized by act 
 of May 22, 1896 (29 Stat., 133). 
 
 Loan of scientific instruments by Secretary of 
 the Navy to the Weather Bureau was 
 authorized by act of October 19, 1888, sec- 
 tion 3 (25 Stat., 600), as amended by act of 
 October 1, 1890 (26 Stat., 653). 
 
 Loan of articles to Red Cross was authorized by 
 joint resolution of May 8, 1914 (38 Stat., 
 771), as amended by joint resolution of 
 May 18, 1916 (39 Stat., 164). 
 
 Official Register of the United States — 20 copies 
 of each edition to be furnished to the Na\'y 
 Department under Public Printing ana 
 Binding Act, January 12, 1895, section 73 
 (28 Stat., 618). 
 
 Punishment for injuring or destroying naval 
 supplies and property is provided by 
 Criminal Code, act of March 4, 1909, sec- 
 tion 286 (35 Stat., 1144); and section 1624, 
 Revised Statutes, article 4. 
 
 Punishment for injuring naval vessel or equip- 
 ment is provided by section 1624, Revised 
 Statutes, article 4. 
 
 Punishment for failure to prevent destruction 
 of public property is provided by section 
 1624, Revised Statutes, article 8. 
 
 Punishment for wasting ammunition, provi- 
 sions, or other public property, or permit- 
 
 353 
 
Sec. 418. 
 
 Pt. 2. REVISED STATUTES. 
 
 Navy Department. 
 
 ting such waste, is provided by section 
 1624, Ileviaed Statutes, article 8. 
 
 Punishment for unlawfully purchasing naval 
 property from person not having lawful 
 right to sell same is provided by section 
 1624, Revised Statutes, article H; and 
 Criminal Code, act of March 4, 1909, sec- 
 tion 35 (35 Stat., 1095). 
 
 Punishment for stealing, embezzling, or unlaw- 
 fully selling ordnance, arms, equipment, 
 ammunition, clothing, subsistence stores, 
 or other naval property is provided by 
 section 1624 Revised Statutes, article 14; 
 and Criminal Code, act of March 4, 1909, 
 sections 36 and 47 (35 Stat., 1096, 1097). 
 
 Punishment for unlawfully concealing, remov- 
 ing, mutilating, obliterating, falsifying, or 
 destroying any public record, book, paper, 
 etc. , is provided by Criminal Code, sections 
 128 and 129 (35 Stat., 1111, 1112). 
 
 Punishment for forging or altering public 
 records for purpose of defrauding United 
 States is provided by section 28, Criminal 
 Code, act of March 4, 1909 (35 Stat., 1094); 
 and section 1624, Re\rised Statutes, article 
 14. (See also act Mar. 4, 1911, 36 Stat., 
 1355.) 
 
 Purchase of supplies is deemed to be for the 
 Navy, and not for any bureau thereof, and 
 they shall be classified and issued accord- 
 ingly. (Act Mar. 2, 1891, 26 Stat., 807; 
 act June 30, 1890, 26 Stat., 205.) 
 
 Purchase of structural steel, ship plates, armor, 
 armament, or machinery from unlawful 
 comb'mations or monopolies, or at price in 
 excess of a reasonable profit, is prohibited 
 by a claiise in the annual naval appropria- 
 tion act imder "Increase of the Nav-y." 
 (See act Mar. 4, 1917, 39 Stat., 1195.) 
 
 Purchase of naval supplies, when time will 
 permit, is to be made by contract after 
 advertisement and from lowest bidder. 
 (Sec. 3718, R. S., as amended by act June 
 30, 1890, 26 Stat., 189; act July 19, 1892, 
 27 Stat., 243;andactMar. 3, 1893,27Stat., 
 715.) 
 
 Purchase of material for steam boilers is author- 
 ized without advertisement. (Res., June 
 14, 1878, 20 Stat., 253.) 
 
 Purchase of gun steel or armor for the Navy, 
 without public competition, is prohibited 
 by act of March 3, 1893 (27 Stat., 732). 
 
 Purchase of shells or projectiles, except for ex- 
 perimental purposes, is not to be made 
 without bids. (Act Mar. 4, 1913, 37 Stat., 
 896; act June 30, 1914, 38 Stat., 398.) _ 
 
 Purchase of ordnance, gunpowder, medicines, 
 bunting, butter and cheese, contraband of 
 war, and supplies abroad for vessels on for- 
 eign stations may be made without adver- 
 tisement. (Sec. 3721, R. S.) 
 
 Purchase of tobacco for the Na^•y is to be made 
 after advertisement in the same manner as 
 other supplies. (Act Jime 10, 1896, 29 
 Stat., 370.) 
 
 Purchase of supplies in open market for all 
 branches of the naval ser\ice without for- 
 mal contract or bond is authoiized where 
 amount does not exceed $500. (Act Mar. 
 2. 1907, 34 Stat., 1193.) 
 
 Piuchase of material, supplies, and equipment, 
 so far as possible, shall be made from other 
 
 services of the Government, possessing ma- 
 terial, supplies, and equipment no longer 
 required because of cessation of war activi- 
 ties. (Act Mar. 1, 1919, sec. 8, Pub. No. 
 314; see also act Feb. 25, 1919, Pub. No. 
 275, and Executive Order of Dec. 3, 
 1918.) 
 
 Purchase of preserved meats, pickles, butter, 
 desiccated vegetables, and flour is to be 
 made in such manner as Secretaiy of the 
 Navy mav deem best. (Sees. 3726 and 
 3727", R. S") ^ 
 
 Piu-chase of bunting mav be made in open mar- 
 ket. (Sec. 3729, R^ S.) 
 
 Purchases not to be made of vessels, aiTnament, 
 articles, or materials wliich the na-\y yards, 
 gim factories, or other industrial plants of 
 the Navy ai'e equipped to supply, except in 
 cases of emergency, etc. (See annual naval 
 appropriation acts, e. g., act of Mar. 3, 1915, 
 38 Stat., 952.) 
 
 Record is to be kept of proceedings of naval 
 examining boards. (Sec. 1501, R. S.) 
 
 Record of officer in Ixis existing grade shall be 
 considered by naval examining board and 
 the President in determining his fitness for 
 promotion. (Sec. 1502, R. S., as amended 
 by act June 18, 1878, sec. 1, 20 Stat., 165.) 
 
 Records of all courts-martial, courts of inquirj', 
 and boards for the examination of officers 
 for retirement and promotion are to be re- 
 ceived and recorded by the Judge Advo- 
 cate General under the direction of the 
 Secretary of the Navy. (Act June 8, 1880, 
 21 Stat., "164; amended by act June 5, 1896, 
 29 Stat., 251.) 
 
 Records are to be kept of all proposals for naval 
 supplies. (Sec. 3720, R. S., as amended by 
 act June 22, 1910, 36 Stat., 591.) 
 
 Records are to be kept in Na\y Department of 
 commissions of all officers under the direc- 
 tion and control of the Secretary of the 
 Navy. (Act Mar. 28, 1896, 29 Stat., 75.) 
 
 Records of character and treatment of diseases 
 are to be transmitted to '^a.xy Department 
 by surgeon of the fleet. (Sec. 1374, R. S.) 
 
 Records of naval contracts are to be kept in Re- 
 turns Office, Interior Department. (Sees. 
 512-515, 3744-3747, R. S.) 
 
 Records of Revolutionary War pertaining to the 
 Navy, in the possession of any official of the 
 United States, are required to be transfened 
 to the Navy Department. (Act Mar. 2, 1913, 
 37 Stat., 723; act June 29, 1906, 34 Stat., 
 579.) 
 
 Records pertaining to the Navy, from beginning 
 of the Navy Department to the Civil War, 
 in the possession of any of the executive 
 departments, are requii-ed to be transferred 
 to the Secretary of the Navy. (Act Apr. 
 27, 1904, 33 Stat., 403.) 
 
 Records and books of bureaus in the Navy De- 
 partment are to be retained in custody of 
 the bureaus. (Sec. 420, R. S.) 
 
 Records of courts of inquiry are admissible in 
 evidence before courts-martial. (Sec. 1624, 
 R. S., art. 60.) 
 
 Records of naval retiring boards are to be laid 
 before the President by Secretary of the 
 Navy. (Sec. 1452, R. S.) 
 
 Records of Revolutionary War are to be classified 
 by Secretary of the Navy with view to pub- 
 
 354 
 
Navy Department. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 418. 
 
 lication. (Act Mar. 2, 1913, 37 Stat., 723; 
 act June 29, 1906, 34 Stat., 579.) 
 
 Records of Civil War are to be published by the 
 Secretary of the Navy. (Act July 31, 1894, 
 28 Stat., 190; see also legislative, executive, 
 and judicial appropriation acts for subse- 
 quent years.) 
 
 Regulations for the purchase, preservation, and 
 disposition of naval supplies are to be made 
 by the President. (Sec. 1549, R. S.) 
 
 Regulations for the custody, use, and preserva- 
 tion of the records, papers, and property ap- 
 pertaining to any executive department, are 
 to be made by the head of such department. 
 (Sec. 161, R. S.) 
 
 Regulations and general orders shall be f m'nished 
 each commissioned and warrant ofBcer of 
 the Navy. (Sec. 1548, R. S.) _ 
 
 Repairs to naval vessels are restricted by sec- 
 tions 1538 and 1539, Revised Statutes, and 
 laws noted thereunder. 
 
 Sale of naval stores to persons in the Navy and 
 Marine Corps and civilian employees at 
 certain naval stations is authorized by act 
 of March 3, 1909 (35 Stat., 768); act of June 
 24, 1910 (36 Stat., 619); and act of March 4, 
 1913 (37 Stat., 909). 
 
 Sale of Navy and Marine Corps susbsistence 
 supplies to officers and enlisted men of the 
 Army is authorized by annual appropriation 
 acts. (See act Mar. 4, 1915, 38 Stat. , 1072. 
 See also sec. 1135, R. S., and note thereto.) 
 
 Sale of vessels unfit to be repaired is authorized 
 by sections 1540 and 1541, Revised Statutes, 
 and subsequent laws noted thereunder. 
 
 Sale of unserviceable materials and condemned 
 naval supplies and stores is authorized by 
 section 1541, Revised Statutes, and subse- 
 quent laws noted thereunder. [The chief 
 of the Bureau of Ordnance was authorized 
 to sell certain small arms on hand and use 
 proceeds for piu-chase of new arms and 
 ammunition by act of June 20, 1878 (20 
 Stat., 242). See also act of March 3, 1875 
 (18 Stat., 388).] 
 
 Sale of useless papers in the Navy Department, 
 on naval vessels, and at navy yards, is au- 
 thorized by acts of February 16, 1889 (25 
 Stat.,672);March2,1895(28Stat., 933); Feb- 
 ruary 16, 1909, section 14 (35 Stat., 622); Au- 
 gust 22, 1912 (37 Stat., 329); and March 3, 
 1915 (38 Stat., 929). 
 
 Sale of individual pieces of United States ar- 
 mament, when sentimental reasons exist 
 for such sale, is authorized l)y act of March 
 2, 1905 (33 Stat., 841). 
 
 Sale or gift of lubricating oil and gasoline to 
 vessels of Volunteer Patrol Squadron. 
 (See act of Aug. 29, 1916, 39 Stat., 600.) 
 
 Sales of vessels and materials are to be reported 
 to Congress (sees. 429, 1541, R. S. ; sec. 3672, 
 R. S., as amended by act Feb. 27, 1877, 
 sec. 1, 19 Stat., 249; act Aug. 5, 1882, sec. 2, 
 22 Stat., 296)._ 
 
 Sales of old material, etc.: Proceeds in certain 
 cases are to be covered into the Treasury 
 as "Miscellaneous receipts." (Sec. 3618, 
 R.S.)_ 
 
 Scientific investigators and students shall be 
 afforded the facilities for study and research 
 in the Government departments under 
 such restrictions as heads of departments 
 
 may prescribe. (Act Mar. 3, 1901, 31 Stat., 
 1039.) 
 
 Statutes at Large — 100 pamphlet copies are re- 
 quired to be furnished to the Navy Depart- 
 ment by Secretary of State at close of each 
 session of Congress. (Public Printing and 
 Binding Act, Jan. 12, 1895, sec. 73, 28 Stat., 
 614.) 
 
 Statutes at Large — 75 bound copies are required 
 to be furnished l)y Secretary of State to Navy 
 Department at close of each Congress. 
 (Public Printing and Binding Act, Jan. 12, 
 1895, sec. 73, 28 Stat., 615.) 
 
 Supreme Court reports are to be furnished to the 
 Secretary of the Navy, the Assistant Sec- 
 retary of the Navy, the Judge Advocate 
 General of the Navy, and the Naval Acad- 
 emy, for official use. (Judicial Code, act 
 Mar. 3, 1911, sec. 227, 36 Stat., 1154.) 
 
 Tim ber lands are reserved for naval purposes , and 
 removal or destruction of timber thereon is 
 made punishable by sections 2458-2463, 
 Revised Statutes. 
 
 Transfer of aeroplanes and equipment to Post 
 Office Department was authorized by Act 
 of February 28, 1919 (40 Stat., 1194). 
 
 Transfer of supplies from one bureau of the War 
 or Navy Departments to another bureau of 
 such departments. See act of March 4, 191 5 
 (38 Stat. 1084), and 21 Comp. Dec, 819. 
 See also section 1135, Revised Statutes, 
 and note thereto. 
 
 Transfer of supplies between Bureaus of the 
 Navy Department was authorized by act 
 ofMarch2, 1889 (25 Stat., 818). 
 
 Transfer of naval vessels to the Department of 
 Commerce was authorized by Act of June 
 5, 1920 (41 Stat., 1058) ; and to the Shipping 
 Board by Act of September 7, 1916, sec. 6 
 (39 Stat"., 730; compare Act June 5, 1920, 
 41 Stat., 990; see also Act May 12, 1917, 
 40 Stat., 75). 
 
 Transportation of naval supplies by Army trans- 
 port service, is authorized by act of March 2, 
 1907 (34 Stat., 1170). 
 
 Transportation of naval supplies shall be in ves- 
 sels of United States, unless freight charges 
 are unreasonable and excessive. (Act Apr. 
 28, 1904, 33 Stat., 518.) 
 
 Vehicles, passenger-carrying, are not to be 
 purchased, operated, or repaired from any 
 appropriation without specific authority 
 of Congress. (Act July 16, 1914, sec. 5. 
 38 Stat., 508). 
 
 Vessels, foreign built and registered as vessels 
 of United States, may be taken and used 
 as cniisers or transports. (Act May 10, 
 1892, sec. 4, 27 Stat., 28.) _ 
 
 Vessels used in ocean mail service may be taken 
 and used as transports or cruisers. (Act 
 Mar. 3, 1891, sec. 9, 26 Stat., 832.) 
 
 Transfer of property. — ^\Tiere articles of 
 equipment, purchased for use of a particular 
 bm'eau of a department have served the pur- 
 pose for which purchased, they maybe trans- 
 ferred for use of another bm-eau of said depart- 
 ment without any adjustment of appropria- 
 tions. (21 Comp. Dec, 788.) 
 
 Under the provisions of the act of March 4, 
 1915 (38 Stat. 1084), when one bureau of the War 
 
 355 
 
Sec. 418. 
 
 PL 2. REVISED STATUTES. 
 
 Navy Department. 
 
 or Navy Departments procures supplies or 
 perforins any soivice for another buieau 
 of such departments the head of the de- 
 partment lor which the supplies are to be 
 f)rocured or the scr%ice performed may cause its 
 unds to be transferred on the books of the 
 Treasury' Department to the prociu-ino; depart- 
 ment for direct expenditure by it. The funds 
 80 transferred are to be expended and accounted 
 for under the rules and regulations of the 
 department to which they are advanced (21 
 Comp. Dec, 819; see also 17 Op. Atty. 
 Gen., 480). 
 
 Authority of Congress is necessary for trans- 
 fer of naval vessel to the Revenue-Cutter Serv- 
 ice. (File 3160-54, May 4, 1907.) 
 
 Tliere is no authority for the Navy Depart- 
 ment to transfer to another department al)so- 
 lutely, or temporarily (under certain circum- 
 stances), property piu"chased from its appro- 
 priations. Accordingly, declined to loan model 
 of the U. S. S. Bancroft to the Revenue-Cutter 
 Service, to which the vessel itself had been 
 transferred pursuant to act of June 30, 1906 
 (34 Stat., 702). (File 3160-36, Nov. 15, 1906. 
 See also 17 Op. Atty. Gen., 480; 20 Op. Atty. 
 Gren., 93, 96; 23 Comp. Dec, 175. Compare file 
 80^3, Sept. 28, 1906, holding that the loan of a 
 gun to the State of Virginia might be made 
 under the general powers of the Secretary of 
 the Navy, there being no express statutory 
 authority covering the case.) 
 
 The Secretary of the Navy can not exchange 
 a vessel belonging to the Navy, which has been 
 condemned as unfit for naval purposes, for 
 another vessel, notwithstanding the exchange 
 might be of advantage to the public service. 
 The disposition of such vessel is controlled by 
 the law providing for the sale of vessels and 
 materials which can not be advantageously 
 used. (14 Op. Atty. Gen., 369.) 
 
 For other cases, see notes to sections 161 and 
 355, Revised Statutes; and see various laws au- 
 thorizing loan or transfer of Gov-ernment prop- 
 erty — for example, joint resolutions of Febru- 
 ary 3, 1913 (37 Stat., 1024), and February 9, 
 1917 (39 Stat., 902), authorizing Secretary of 
 Navy to loan flags to inaugural committee, 
 subject to certain restrictions — and see laws 
 noted above and section 427, Revised Statutes. 
 
 Records of department. — The Navy De- 
 partment is unable to comply with the request 
 of attorneys that original correspondence be 
 furnished them from the files of the department, 
 notwithstanding their offer to give any reason- 
 able security for its custody and retm-n. The 
 law requires that the records shall be kept safely 
 in the_ department, and the Secretary of the 
 Navy is made personally the custodian. (Let- 
 ter of Hon. R. W. Thompst^n, Secretary of the 
 Navy, May 12, 1879, published in Maurice v. 
 Worden, 54 Md., 237; see also file 12475-64, 
 Aug. 9, 1915.) 
 
 it has been the iuA^ariable practice of the 
 Navy Department to decUne to furnish in the 
 case of legal controversies, at the request of the 
 parties litigant, copies of papers or other infor- 
 mation to be used in the course of the proceed- 
 ings. (G. O. No. 121, Navy Dept., Sept. 17, 
 1914; see also file 1959-99, and 12475-53:1, 
 Jan. 30, 1915.) 
 
 The Na\y Department does not grant per- 
 mission to attorn ey.s to make preliminary and 
 informal examination of the records, but will 
 promptly furidsh copies of papers or records 
 upon call of a civil court before which proceed- 
 ings are pending. (G. O. No. 121, Navy Dept., 
 Sept. 17, 1914; see also file 5467-8, Mar. 27, 
 1907.) 
 
 "No information shall be furnished from the 
 records of the NaAy Department to attorneys 
 or agents concerning the naval service of 
 officers or enlisted men of the Navy until such 
 attorneys or agents shall file a power of attorney 
 in the department, sho^\■ing that they have 
 authority from the person whose record is 
 desired, or his legal representatives, to request 
 such information, and!^ shall also file a state- 
 ment of the purpose for which such information 
 is desired. If such statement be deemed satis- 
 factory to the department, the information will 
 be furnished, provided the attorney or agent 
 submits to the department the same proof of 
 the identity of the person or persons he repre- 
 sents, as is reqidred when the application for 
 such information is made by the person or 
 persons themselves." (Art. 26, Naval Instruc- 
 tions, 1913.) 
 
 It would be establishing a dangerous prece- 
 dent for the Secretary of the NaAy to fmnish 
 information fiom the official records for the use 
 of an attorney in preparing a case against the 
 United States in the Court of Claims, even 
 though such attorney file a power of attorney 
 from the legal representative of the person 
 whose record is desired. The furnishing of 
 such Information "might be construed in viola- 
 tion of section 5498 Revised Statutes." The 
 information sought might be furnished very 
 properly upon the call of the Court of Claims. 
 (Attorney-General to Secretary of the Navy, 
 Jan. 18. 1915, file 12475-53: 1; see also sec. 
 164, Judicial Code, act Mar. 3, 1911, 36 Stat.,* 
 1141, and sec. 188, R. S.) [Section 5498, Re- 
 vised Statutes, above-mentioned, was repealed 
 by section 341, Criminal Code, act of March 4, 
 1909 (35 Stat., 1153), and similar provi'-ions 
 were embodied in section 109 of said Criminal 
 Code (35 Stat., 1107).] 
 
 There is a class of communications which the 
 courts will not reqiure to be produced in evi- 
 dence where those having the custody of them 
 object to their publicity on the ground of pub- 
 lic policy. Such are ofiicial communications 
 to the heads of Government, and between its 
 different departments. "And where the law is 
 restrained by public policy from enforcing the 
 production of papers,the like necessity restrains 
 it from doing what would be the same in effect, 
 namely, receiving secondary evidence of their 
 contents." (Maurice v. Worden, 54 Md., 254; 
 citing 1 Green. Ev., sec. 251.) 
 
 HowoA-er, where the Secretary of the Navy 
 furnished copies of correspondence from the 
 files of the department, for use by attorneys in 
 the pjrosecution of a libel suit against the 
 superintendent of the Naval Academy, it was 
 held that such copies under the department's 
 seal might be used in eAidence, as the Secre- 
 tary of the Na-\y, by furnishing such copies, 
 showed that he did not object to their pub- 
 licity. (Maurice v. Worden, 54 Md., 254.) 
 
 356 
 
Navy Department. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 419. 
 
 Communications in writing passing between 
 officers of the Government, in the course of 
 official duty, relating to the business of their 
 offices, are privileged from disclosure on the 
 ground of public policy, and their production 
 will not be compelled by courts of law or equity. 
 Neither will secondary evidence of their con- 
 tents be admis able, whether in the form of 
 copies or of oral statements of witnesses who 
 have read and recollected the same. An 
 official letter from the head of an olfice to the 
 head of the department, recommending a 
 person for appointment as clerk in the former's 
 office in place of one whose removal is recom- 
 mended for inefficiency and bad conduct, is a 
 privileged communication within the rule, 
 and can not be admittted in evidence to sus- 
 tain an action for libel brought against the 
 head of the office by the person whose removal 
 is recommended. (Gardner v. Anderson, 9- 
 Fed. Gas. No. 5220. In this case, the head of 
 the department declined to appear before a 
 commission to take his testimony, or to produce 
 any paper or copy, and sent the commissioner 
 a letter to that effect. The appointment clerk 
 who attended and was examined, by direction 
 of the Secretary declined to produce any paper 
 or to speak of the contents of any. _ The Secre- 
 tary later declined to attend the trial in obedi- 
 ence to a subpoena, and directed the United 
 States attorney to state his reasons to the court. 
 The court refused to proceed against the Secre- 
 
 tary for contempt, as moved by plaintiff. The 
 court advised plaintiff to apply to the Secretary 
 for a copy of the letter. The Secretary replied 
 that, at the date of alleged letter, the defendant 
 was appraiser of merchandise, and any com- 
 munications from him to the department were 
 official in their nature, confidential, and pro- 
 tected from disclosiu-e; and he, the Secretary, 
 was not at liberty to furnish a copy of the same 
 to enable the plaintiff to maintain an action 
 against a late appraiser whose defense the 
 Government had assumed. The plaintiff then 
 called a clerk in the appraiser's office, who had 
 charge of the official letter copying book. The 
 court, however, excluded such secondary evi- 
 dence, its decision being as stated above.) 
 
 Removal of papers from existing records of 
 officers is not approved. (File 4435-5, May 13, 
 1908.) 
 
 The official records of the Navy Department 
 should remain inviolate, and should not be 
 changed a hundred years after the events they 
 purport to record. Where it is alleged that 
 the record of an officer is in error, the evidence 
 in support of such claim may be filed with his 
 record, thus showing just what is claimed and 
 just what authority there is for each claim. 
 (File 24413-5, July 12, 1913. See also note to 
 Constitution, Art. I, sec. 7, clause 2.) 
 
 For other cases, see notes to sections 161, 
 188, and 871, Revised Statutes. 
 
 Sec. 419. [Establishment of Bureaus and Distribution of Business.] The busi- 
 ness of the Department of the Navy shall be distributed in such manner as the 
 Secretary of the Navy shall judge to be expedient and proper among the follow- 
 ing Bureaus: 
 
 First. A Bureau of Yards and Docks. 
 
 Second. A Bureau of Equipment and Recruiting, 
 
 Third. A Bureau of Navigation. 
 
 Foiu-th. A Bureau of Ordnance. 
 
 Fifth. A Bureau of Construction and Repair. 
 
 Sixth. A Bm'eau of Steam Engineering. 
 
 Seventh. A Bureau of Provisions and Clothing. 
 
 Eighth. A Bureau of Medicine and Surgery. — (31 Aug., 1842, c. 286, s. 2, 
 V. 5, p. 579; 5 July, 1862, c. 134, s. 1, v. 12, pp. 510, 511.) 
 
 Advisory committee for aeronautics was estab- 
 Ushed, and its duties prescribed, by act of 
 March 3, 1915 (38 Stat., 930). 
 
 Aircraft Board was established by act of 
 _ October 1, 1917 (40 Stat., 296). 
 
 Assistant Secretary of the Navv is authorized 
 by act of July 11, 1890 (26 Stat. , 254) , and is to 
 * ' perform such duties as may be prescribed 
 by the Secretary of the Navy or required 
 by law. " (Act Mar. 3, 1891, 26 Stat., 934.) 
 
 Boards, commissions, coimcils, etc., are not 
 authorized to perform any work at the ex- 
 pense of appropriations made by Congr-ess, 
 unless the creation thereof has been author- 
 ized by law; no personal services from any 
 executive department shall be employed by 
 such boards, etc., nor expenses of members 
 paid. (Act Mar. 4, 1909, sec. 9, 35 Stat., 
 1027.) 
 
 Boards: The General Board was created by 
 Navy Department General Order No. 544 
 of March 13, 1900. Its composition and 
 duties were prescribed by Navy Regula- 
 tions, 1913, Arts. R-104,_ 166, 167. It re- 
 ceived statutory recognition in the act of 
 August 29, 1916 (39 Stat., 563 and 39 Stat., 
 581). As to precedence of members of Gen- 
 eral Board, see note to section 421, Revised 
 Statutes, under "IV. Rank, Titles, and 
 Precedence." 
 
 Biu-eau of Construction and Repair is to desig- 
 nate members of board to report cost, etc., 
 of repairs to vessels (sec. 1538, R. S.), and 
 to conduct work of investigating and deter- 
 mining the most suitable and desirable 
 shapes and forms to be adopted for naval 
 vessels, by means of model tank at navy 
 yard, Washington, D. C. (Act June 10, 
 
 357 
 
Sec. 419. 
 
 J't. 2. REVISED STATUTES. 
 
 Navy Department. 
 
 1896, 29 Stat. , 372 . ) The Chief Conetructor 
 to be member of Aircraft Board. (Act 
 Oct. 1, 1917, 40 Stat., 297.) 
 
 Bm"eau of Eqiiipmont and Recruiting; was des- 
 ignated as Bureau of Equipment in annual 
 appropriation acts commencing vAih the 
 fiscal year 1892 ; pro^^siou was rnade for dis- 
 tribution of the duties, funds, and em- 
 ployees of the Bureau of Equipment among 
 the other bm^eaus and offices of the Navy 
 Department )iy naval appropriation acts 
 for the fiscal years 19J 1-1914; and the Bu- 
 reau of Equipment was abolished by act of 
 June 30, 1914 (38 Stat., 408). 
 
 Bureau of Medicine and Siu-gery is to recommend 
 Medical Corps officers for appointment to 
 the regular Medical Corps (act Aug. 22, 
 1912, 37 Stat., 344), and to detail expert as 
 member of advisory board of hygiene 
 laboratory (act July 1, 1902, sec. 5, 32 Stat., 
 713). Surgeon-General of the Navy is to 
 be member of board to hear appeals from 
 decision of Commissioner of Internal 
 Revenue as to deleterious ingredients of 
 imitation butter (act Aug. 2, 1886, sec. 
 14, 24 Stat. , 212) and of filled cheese (act 
 June 6, 1896, sec. 15, 29 Stat., 256). 
 
 Bureau of Pro\dsions and Clothing was desig- 
 nated as Bureau of Supplies and Accounts 
 byactof July 19, 1892 (27 Stat., 243, 245); it 
 was required to keep property accounts of 
 all supplies pertaining to the nava! estab- 
 lishment anci to make annual report thereof 
 to Congress, by act of March 2, 1889 (25 Stat. , 
 817) ; to audit property returns from officers 
 of the Navy and determine responsibility 
 for losses, by act of March 29, 1894 (28 Stat., 
 47); to make annual report of receipts and 
 expenditures to the Secretary of the Navy, 
 byactof May 13, 1908(35 Stat., 153); to cause 
 payment of death gratuity to be made in 
 cases of officers and enlisted men of the Navy 
 and Marine Corps by act of June 4, 1920 
 (41 Stat., 824); to receive quai'terly re- 
 turns of property from storekeeper at the 
 Naval Academy, by act of May 13, 1908 (35 
 Stat., 153); to receive report of inspection 
 and recommendation from general inspec- 
 tor of the Pay Corps, on accounts of store- 
 keeper at the Naval Academy, by act of 
 May 13, 1908 (35 Stat., 153); to pay witness 
 fees in naval coiu1;s by act of February 16, 
 1909 (sec. 12, 35 Stat., 622); to audit ac- 
 counts of ships' stores profits, by act of June 
 24, 1910 (36 Stat., 619); and to keep money 
 accoimts so as to show direct and indirect 
 charges incident to cost of work, and make 
 annual report thereof to Congress, by act 
 of March 4, 1911 (36 Stat., 1267). 
 
 Bureau of Steam Engineering was designated 
 as Bureau of Engineering by act of June 4, 
 1920 (41 Stat., 828). 
 
 Bureau of Yards and Docks to have super- 
 vision of power plants at navy yards. (Act 
 Apr. 27, ]904, .33 Stat., 337). 
 
 Bureaus in contracting for naval supplies shall 
 be at liberty to reject bids of persons who 
 have previously defaulted (sec. 3722, R. 
 S.), and shall not contract for supplies in 
 foreign country except after advertisement 
 in New York (sec. 3723, R. S. See laws 
 
 relating to conti-acts noted under sec. 418, 
 R. S.). 
 
 Chief of Naval Operations, authorized by act of 
 March 3, 1915 (38 Stat., 929), as amended 
 by act of August 29, 1916 (39 Stat., 5.58), is 
 charged, under the direction of the Secre- 
 tary of the Navy, with the operations of the 
 fleet and with the preparation and readi- 
 ness of plans for its use in war; and is to 
 succeed to duties of the Secretary of the 
 Navy during the temporary absence of the 
 Secretary and the Assistant Secretary. 
 
 Hydrographic Office was established by law as 
 a part of the Bureau of Navigation, and its 
 duties prescribed by Congi-esa. (See sees. 
 431-433, R. S.) 
 
 Judge Advocate General's Office was estab- 
 lished by act of Junes, 1880 (21 Stat., 164), 
 amended by act June 5, 1896 (29 Stat., 251), 
 the duties of the Judge Advocate General 
 as prescribed by Congi-ess being, under the 
 direction of the Secretary of the Navy, to 
 "receive, revise, and have recorded the 
 proceedings of all com*ts-martial, courts of 
 inquiry, and boards for the examination of 
 officers for retirement and promotion in 
 the naval service," and to "perform such 
 other duties as have heretofore been per- 
 formed by the solicitor and naval Judge 
 Ad vocate General . " 
 
 Nautical Almanac Office is provided for by 
 section 436, Revised Statutes. (See note 
 to that section as to consolidation of Nau- 
 tical Almanac Office with the Naval Obser- 
 vatory.) 
 
 Naval Communications Office was established 
 by appropiiations contained in act of May 
 29, 1920 (41 Stat., 664). 
 
 Naval Intelligence Office was established by 
 act February 24, 1899 (30 Stai., 874). See 
 also General Order No. 292, March 23, 1882. 
 
 Naval Observatory is included in Title X, 
 "The Department of the Navy," by sec- 
 tion 434, Revised Statutes, and is included 
 in the annual appropriations for the Navy 
 Department in the legislative, executive, 
 and judicial appropriation act. 
 
 Naval Records and!^ Library Office was estab- 
 lished by the legislative, executive, and 
 judicial appropriation act of March 4, 1915 
 (38 Stat., 1025), which consolidated appro- 
 priations made in previous years for "Li- 
 brary of the Navy Department" and 
 "Office of Naval Records of the Rebel- 
 lion." 
 
 Solicitor's Office was created by the legislative, 
 executive, and judicial appropriation act 
 of May 22, 1908 (35 Stat., 218), which trans- 
 ferred certain clerical positions fi-om the 
 office of the Judge Advocate General to the 
 "office of the solicitor." The duties of the 
 solicitor were not fixed by statute, except 
 that he should "perform the duties of the 
 Judge Advocate Geneml of the Navy in 
 case of the death, resignation, absence, or 
 sickness of that officer " ; which pro\'ision, 
 however, was omitted from appropriation 
 acts for the following years, and is not now 
 in force. (See file 24690-77^ Feb. 12, 21, 
 1908; file 25462-6, Apr. 22, 1909; file 3980- 
 1450, Nov. 6, 1918; and file 22724-51.) 
 
 358 
 
Navy Department. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 410 
 
 The Navy pay ofl3.ce at Washington is not 
 one of the "Isiireaus and offices" of the Navy 
 Department within the meaning of a contract 
 to deliver ice to the Navy Department and its 
 various bureaus and offices. (File 6482, July 
 26, 1904.) 
 
 The Marine Corps is not one of the bureaus 
 of the Navy Department. _ It is a part of the 
 Naval Establishment, but it is not a part of the 
 Navy Department as established at the seat of 
 government; it is under the supervision of an 
 executive department, but that relation to the 
 department is not the same as being a part of it. 
 (11 Comp. Dec, 558; see also 28 Op. Atty. 
 Gen., 487, and note to sec. 159, R. S.) 
 
 "The office of the Judge Advocate 
 General of the Navy, while simply designated 
 as an office, is, nevertheless, one of the coordi- 
 nate branches of the Navy Department, with 
 responsibilities of no less importance than those 
 of the chiefs of bureaus.'-' (S. Repts., vol. 2, 
 54th Cong., Istsess., 1895-96, No. 472.) 
 
 "The office of Judge Advocate General is one 
 of great responsibility and requires a high order 
 of talent to successfidly perform the duties 
 thereof." (H. Repts., vol. 1, 54th Cong.,- 1st 
 sess., 1895-96, No. 285.) 
 
 "Owing to the peculiar nature of the duties 
 pertaining to the office of Judge Advocate Gen- 
 eral in the Navy Department, it seems to be 
 absolutely necessary that the officer appointed 
 to said office shoidd be familiar with the law, 
 forms and practice of courts-martial, the rules, 
 regidations, and established customs of the 
 Navy ; that he shoidd have practical experience 
 in the naval service and an acquaintance with 
 the application of the law and regulations to 
 the rank, grades, ratings, and of the various 
 classes of officers and enlisted men in the service, 
 and that he should possess proper legal attain- 
 ments to enable him to discharge satisfactorily 
 the duties of that office.'' (H. Repts., vol. 2, 
 46th Cong., 2d sess., 1879-80, No. 459.) 
 
 The duties required to be performed by the 
 Judge Advocate General "areamoiig the most 
 important branches of the public business which 
 have been confided to the Navy Department." 
 (H. Repts., vol. 2, 46th Cong., 2d sess., 1879-80, 
 No. 459.) 
 
 The office of the naval solicitor, as it existed 
 under the Department of Justice [sec. 349, 
 R. S.], wasunsuited to the requirements of the 
 naval service. After that office was abolished 
 [act June 19, 1878, 20 Stat., 205] and prior to the 
 establishment of the office of Judge Advocate 
 General [act June 8, 1880, 21 Stat., 164], the 
 necessity of having an officer of the service, 
 possessing the necessary qualifications, to sys- 
 tematize the details or administration of law 
 and justice in the Navy and perform the duties 
 of Judge Advocate General was partially met 
 by the detail of a suitable officer by the Secre- 
 tary of the Navy to act in that capacity. But 
 in view of the changes to which such office was 
 subjected by their temporary assignments it 
 was found important that Congress should fix 
 the status of such officer by a provision for the 
 Navy analogous to that which had long been 
 estabUshed in the Army, except that the rank 
 and pay of the Judge Advocate General of the 
 Army are of a higher relative grade (brigadier 
 general) than that given by law to the officer 
 
 appointed to discharge similar duties as Judge 
 Advocate General of the Navy (captain in the 
 Navy or colonel in the Marine Corps). (H. 
 Repts., vol. 2, 46th Cong., 2d sess., 1879-80, 
 No. 459.) 
 
 The business which it was proposed to assign 
 to the office of Judge Advocate General by the 
 act of June 8, 1880, ' consists of the records of all 
 courts-martial, coiu-ts of inquiry, boards for the 
 examination of officers for retirement and pro- 
 motion, the preparation of charges and specifi- 
 cations for coiu"ts-martial, the organization of 
 courts and boards, the various claims fijed for 
 investigation, numerous questions of law, regu- 
 lation, and other matters. The records of pro- 
 ceedings of the various courts and examining 
 boards, many of them being voluminous, re- 
 quire careful reading and examination prelimi- 
 nary to action thereon by the Secretary. The 
 claims filed for investigation and the questions 
 of law and regulation arising in the department 
 necessitate a thorough examination and con- 
 sideration of the statutes, regidations, and estab- 
 lished customs of the service relating thereto; 
 and the bxisinesa generally of the office being so 
 extensive, it is impossible for the Secretary, in 
 the midst of other varied and important duties 
 required of him, to give to this branch of the 
 public business the attention and consideration 
 that its importance demands. * * * All 
 other executive depai'tments of the Government 
 are provided by law with an officer to perform 
 the duties therein similar to those required of 
 the officer who may be appointed to the office of 
 Judge Advocate General of the Navy." (H. 
 Repts., vol. 2, 46th Cong., 2d sess., 1879-80, 
 No. 459.) 
 
 The word "revise" as used in section 1199, 
 Revised Statutes, prescribing the duties of the 
 Judge Advocate General of the Army with re- 
 spect to court-martial proceedings, implies no 
 authority to reverse; it indicates the discharge 
 of a clerical duty, analogous to that of receiv- 
 ing and recording the proceedings. (Ex parte 
 Mason, 256 Fed. Rep., 384.) 
 
 The creation of a new bureau in a depart- 
 ment can only be authorized by act of Congress, 
 designating its chief, defining his duties, and 
 providing for the appointment or transfer of the 
 necessary clerical force and messenger. (10 Op. 
 Atty. Gen., 11, holding that the President was 
 not authorized, without statutory enactment, to 
 create a militia bureau in the War Department.) 
 
 Contracts for bureaus. — "TheBin"eau of 
 Supplies and Accounts is the piu"chasing agent 
 of the Navy Department for all supplies, and 
 should be so recognized," (File 28233-1216, 
 June 1, 1914.) 
 
 The law expressly authorizes the Secretary 
 of the Navy to distribute the business of the 
 department between the bureaus concerned in 
 such manner as he deems fit. The Naval In- 
 structions, 1913 (art. 1^651), provides that "all 
 purchases and payments therefor shall be made 
 under the dii-ection of the Bureau of Supplies 
 and Accoimts, and orders directing such pur- 
 chases and payments shall be given only by 
 that bineau. When open purchase requisitions 
 have been approved by chiefs of bureau, they 
 shall be transmitted to the Bureau of Supplies 
 and Accounts for action." It is also provided 
 bv the Navy Regulations, 1913 (art. R-4641), 
 
 359 
 
Sec. 419. 
 
 PL 2. REVISED STATUTES. 
 
 Navy Department. 
 
 that "the word 'i>uivhase,' when used in the 
 Navy Reguhitions or Naval Instructions, shall 
 be construed a.s relating * * * to the con- 
 tract or aijreement for the sale and delivery of 
 any article or for the iicrformance of any serv- 
 ing * * * " Thus interpreted, as it must 
 be, the above article of the Naval Instructions 
 expressly provides that the "contract or agree- 
 ment * * * for the performance of any 
 service" shall be made under the direction of 
 the Bureau of Supplies and Accounts, and that 
 "orders directing'' such contract or agreement 
 shall be given "only by that bureau." (File 
 3973-120. Mar. 31, 1916.) 
 
 The terms of naval contracts are settled by 
 the administrative bureau; a requisition em- 
 bodying the transaction is then sent to the 
 Bureau of Sui)plies and Accounts, which pre- 
 pares a formal contract in writing, in accordance 
 ^vith section 3744, Revised Statutes. The con- 
 tract is made by the United Slates through the 
 administrative bureau, and the formal contract 
 ^\^.ll be reformed where, through clerical error in 
 the requisition, it did not embody the agreed 
 terms. (Ackerlind r. U. S., 240 U. S., 531, 
 reversing Lind v. XJ. S., 49 Ct. Cls., 635, and 12 
 Com]i. Dec, 447.) 
 
 Duties of the various bureaus. — In the 
 Navy, while the different bureaus and the 
 manner of appointments of chiefs of bureaus 
 are established by law, the descriptions and 
 distribution of the duties performed in each 
 bureau are left to the discretion and authority 
 of the Secretary of the Navy, with the approval 
 of the President. The powers vested in the 
 Secretary- of the Na\y are of more than usual 
 extent. Thus, for instance, in the organization 
 of the Army the statutes define the duties of 
 the chiefs of bureaus (or departments, as they 
 are styled), suih as the Quartermaster, the Com- 
 missary, the Ordnance officers, etc. (Op. Atty. 
 Gen., Oct. 27, 1909, file 3980-530.) 
 
 It is unquestionable that Congress has in- 
 tended that the administration of affairs in the 
 Navy should be through the bureaus created 
 by the statutes now embodied in section 419, 
 Revised Statutes. In isolated instances some 
 of the duties of officers in one of the bureaus 
 have been made the subject of statutory defini- 
 tion; but the business of the department 
 "shall be distribiited among these bureaus." 
 This language is mandatory. The manner of 
 the distribution is left to the discretion of 
 the Set-retary. The instrumentalities through 
 which he performs the business are fixed by the 
 statute. Having the power to make the regu- 
 lations, he can repeal, modify, or alter them. 
 Having the power to distribute the business, 
 he can change the distribution and make new 
 distribution. Subject to restrictions in the 
 appropriation acts, he can take duties from one 
 bureau and a.ssign them to another bureau. 
 (Op. Atty. Gen., Oct. 27, 1909, file 3980-530.) 
 
 Congress makes appropriations for the naval 
 service in recognition of the distribution of 
 duties under section 419. In the appropriation 
 acts the moneys appropriated for expenses are 
 placed under the headings of the different 
 bureaus in conformity with the requirements 
 of sections 430 and 3676, Revised Statutes. 
 WTiile, therefore, it is within the authority of 
 the Secretary of the Navy to make any changes 
 
 in the distribution of business that may seem 
 to him expedient and proper, sui'h authority 
 must be exercised so as not to conflict with any 
 act of Congress. (Op. Atty. Gen., Oct. 27, 
 1909, file 3980-530.) 
 
 The grant of power by Congress to distribute 
 the business of the department, although 
 general and extensive, must be considered in 
 connection with other statutes in relation to the 
 same subject matter. Thus, by the act of June 
 22, 1906, section 4 (34 Stat., 448), it is required 
 that the annual estimates shall be prepared and 
 submitted ' ' according to the order and arrange- 
 ment of the appropriation acts for the year 
 preceding," and that "any changes in such 
 order and arrangement and transfers of salaries 
 from one office or bureau to another office or 
 bureau, or the consolidation of oflices or bureaus 
 desired by the head of any executive depart- 
 ment, may be submitted by note in the esti- 
 mates. ' ' This provision does not interfere with 
 the authority to redistribute the matters of 
 administration or to transfer duties from one 
 bureau to another, nor does it alter the manner 
 of appropriations for the different bureaus. 
 Indeed, it clearly recognizes the authority to 
 change the duties of the several bureaus. But 
 it also declares the manner in whii h changes 
 in the appropriations shall be made. This 
 applies to specific appropriations made for 
 disbursements in the different bureaus. (Op. 
 Atty. Gen., Oct. 27, 1909, file 3980-530. In 
 this connection see act of Mar. 4, 1915, 38 Stat., 
 1084, with respect to transfer of funds between 
 bureaus and departments.) 
 
 Grouping of bureaus in "divisions." — 
 The work of the Navy Department may be 
 grouped under general divisions, each of which 
 may include different bureaus; and in each 
 division the Secretary of the Na\'y may detail 
 an officer of the Navy as an "aid" to ad\'ise 
 the Secretary on all matters pertaining to the 
 duties of the division and to transmit orders 
 of the Secretary to the various chiefs of bureaus 
 and to other subordinates of the department, 
 signing such orders "by direction of the Secre- 
 tary of the Na\'y." However, such aids can 
 not, individually or collectiA^ely, exercise any 
 supervisory authority over the chiefs of bureaus. 
 That is the exclusive pro\anceof the Secretary 
 and can not be delegated by him. The author- 
 ity of the aids to transmit orders "by direction 
 of the Secretary" can not be considered as 
 conferring authority to issue orders. This 
 formula can not be used to warrant any inde- 
 pendent action by fhe aids. The aids are 
 merely the eyes and hands of the Secretary, 
 and the grouping of the bureaus under divisions 
 are merely convenient methods of enabling 
 the Secretary to exercise his legal authority 
 over them. (Op. Atty. Gen., Oct. 27, 1909', 
 file 3980-530.) 
 
 If the plan involved the creation of new 
 offices and the appointment of new officers to 
 perform the business of the department, it 
 would be beyond the power of the Secretary, 
 with the approval of the President, to make 
 such regulations. That work has been provided 
 for by the establishment of the bureaus and the 
 appointment by the President, under his con- 
 stitutional power, of the officers to administer 
 their duties. To assign those duties to other of- 
 
 360 
 
Navy Department. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 420. 
 
 ficers in other bureaus or boards would be to cre- 
 ate new offices and new officers, which would be 
 not authorized and in conflict with existing law. 
 (Op. Atty. Gen., Oct. 27, 1909, file 3980-530.) 
 
 That officers detailed as aids under this plan 
 can not by virtue of such detail perform the 
 duties of the Secretary during the latter' s ab- 
 sence, see note to section 179, Revised Statutes. 
 
 [The "aids" referred to above, namely "Aid 
 for Operations," "Aid for Personnel," "Aid for 
 Material," and "Aid for Inspections," were 
 established by Changes in Navy Regulations 
 No. 6, of November 18, 1909, and were abol- 
 
 ished by Changes in Navy Regulations No. 5, 
 of July 15, 1915.] 
 
 The Secretary of the Navy may performL 
 any duties vested by law in the chief of a 
 bureau during a temporary vacancy in such 
 bureau chiefship. (File22724-7e, May 14, 1909, 
 and see 28 Op. Atty. Gen., 487.) But where 
 a contract provides that the chief of a bureau 
 may under certain conditions annul the same, 
 the Secretary of the Navy, during the tempo- 
 rary absence of the bureau chief, has no author- 
 ity to annul said contract. (Williams Eng. 
 and Cont. Co., v. U. S., 55 Ct. Cls., 349.) 
 
 Sec. 420. [Orders considered as emanating from Secretary.] The several 
 Bureaus shall retain the charge and custody of the books of records and accounts 
 pertaining to their respective duties ; and all of the duties of the Bureaus shall be 
 performed under the authority of the Secretary of the Navy, and their orders 
 shall be considered as emanating from him, and shall have full force and effect 
 as such.— (.31 Aug., 1842, c. 286, s. 8, v. 5, p. 580; 5 July, 1862, c. 134. s. 4, 
 V. 12, p. 511.) 
 
 See note to section 418 Revised Statutes, as to 
 department's books, records, and property. 
 The orders of the Chief of Naval Operations shall 
 be considered as emanating from the Secre- 
 tary and shall have full force and effect as 
 such. (Act Aug. 29, 1916, 39 Stat., 558.) 
 The duties of the JudgeAdvocate General shall 
 be performed under the direction of the 
 Secretary of the NaA^. (Act June 8, 1880, 
 21 Stat., 164.) 
 Legal liability of chiefs of bureaus for 
 official acts. — See note to section 417, Revised 
 Statutes, "Legal liability of Secretary for offi- 
 cial acts." 
 
 Orders issued by bureaus.— This statute 
 does not mean to say that those bureaus, and the 
 Secretary of the Navy in relation to them, are 
 independent of the President. Of coiuse the 
 chief of the bureau does not profess to speak in 
 the name of the President, but in that of the 
 Secretary-; yet his acts have legal effect as the 
 acts of the President, represented, pro hac \'ice, 
 by the Secretary of the Navy. (7 Op. Atty. 
 Gen., 453, 474; see also McGowan v. Moody, 22 
 App. D. C, 148, noted under sec. 158, R. S.) 
 
 It is well settled that the President may act 
 through the heads of the different departments, 
 and if the head of one of the executive depart- 
 ments a( ts it will be presumed, in the absence 
 of cA-idence to the contrary, that he acted by 
 direction of the Preside nt. But no such power 
 has been delegated to other subordinate officers 
 , of the Government, whether civil or military, 
 and the acts of such officers, without express 
 authorization from the President or from Con- 
 gress, are ineffectual for any purpose. Although 
 the court will presume that the head of a de- 
 partment acts by direction of the President in 
 the absence of evidence to the contrary, this 
 presumption does not extend down the line to 
 all civil and military officers of the Government, 
 of whatever grade. (Northern Pac. Ry. Co. v. 
 Mitchell, 208 Fed. Rep., 469.) 
 
 In all the cases considered — and We are aware 
 of no authority to the contrary — it will be noted 
 that the power of the President was exercised 
 through the head of the department and not by 
 
 a subordinate. (Truitt v. U. S., 38 Ct. Cls., 
 404.) 
 
 The Chief of the Bureau of Navigation is not 
 empowered to detach one member of a naval 
 court-martial and substitute another without 
 authority from the Secretary of the Navy who 
 convened the court. Where this was done, the 
 court was illegally constituted, and its judg- 
 ment ought not to be enforced. (22 Op. Atty. 
 Gen., 137.) _ 
 
 Under this section, appointments issued by 
 the Chief of the Bureau of Navigation to officers 
 in the naval auxiliary servdce have the same 
 legal effect as if they had been signed by the 
 Secretary of the Navy. (14 Comp. Dec, 334. 
 But ci\dlian employees of the bureaus and 
 offices of the Navy Department must be 
 appointed by the Secretary of the Navy or with 
 his written approval, by express requirement of 
 Art. 52, Naval Instructions, 1913, quoted under 
 sec. 416, R. S.) _ 
 
 This statute gives full authority to the heads 
 of the varicus bureaus, and to the acting heads 
 thereof, when properly designated, to issue 
 under the authority of the Secretary of the Navy 
 all orders pertaining to the business of their 
 respective bureaus with the same force and 
 effect as though the orders were issued by the 
 Secretary himself. Nor is it necessary that 
 such orders should afterwards be approved by 
 the Secretary, but only that they should be 
 issued under his authority. It is understood 
 that the Acting Secretary has lately directed 
 that all orders signed by the Chief of the Bureau 
 of Navigation shall have the same force and 
 effect as though signed by the Secretary. It 
 may be doubted whether such an order was 
 necessary, in view of the law and regulations 
 defining the duties of that bureau; but suppcs- 
 ing such specific authority necessary, this 
 action on the part of the Acting Secretary would 
 supply such authority. (9 Comp. Dec, 351.) 
 
 "An order * * * issued by the Bureau 
 of Navigation under authority of the Secretary 
 of the Na\n>?, directing an officer to perform a 
 journey, is 'sufficient authority for him to per- 
 form the travel and to entitle him to mileage 
 
 361 
 
Sec. 421. 
 
 Pt. 2. REVISED STATUTES. 
 
 Navy Department. 
 
 therefor, without the approval of the Secre- 
 tary." (OCoinp. Dec, 351.) 
 
 The gi'iu-ral rule that orclere of the Bureau of 
 Navigation have full force aud effect as orders 
 of the Secretary of the Navy has no application 
 where the law B])eci(ically directs otlicnnse, 
 aud such special cases must be given ellect aa 
 exceptions to the general rule. Thus where the 
 law vests in the Secretary the exercise of per- 
 sonal judgment or discretion, or reciuiri's nim 
 personally to perform a certain duty he can not 
 delegate to another the authority to exercise 
 such judgment or discretion or designate 
 another to perform the special duty which the 
 law devolves upon him. (9 Comp. Dec., 351, 
 citing 18 Op. Atty. Gen., 424, 432, and Reeside 
 r. U. S.,2Ct. Cls.,1.) 
 
 A statute, providing that where repeated 
 travel b ^tween two or more points is performed 
 by officers, "in such vicinity as in the discre- 
 tion of the Secretary of the Navy is appropri- 
 ate," he may direct that actual and necessary 
 expenses only be allowed (act July 1, 1902, 32 
 Stat., 6G3), requires that the Secretary person- 
 ally exercise his discretion in determining 
 whether an allowance of expenses instead of 
 
 mileage is appropriate, being limited in this 
 respect to repeated journeys made between two 
 or more places in such vicinity as he may decide 
 upon. The decision of these questions can not 
 be delegated to the head of a bureau of the Navy 
 Department, nor to any one, bvit is imposed 
 upon the Secretary himself. (9 Comp. Dec., 
 351.) 
 
 See cases noted imder section 415, Revised 
 Statutes, "Assistant Secretary of the Navy." 
 
 Appeals from chiefs of bureaus. — It is 
 competent for Congress to give finality to the 
 determination of subordinate administrative 
 officers, provided due process of law, that is, a 
 notice and a hearing, is pro\'ided (Orchard v. 
 Alexander, 157 U. S., 372). Where Congress 
 does not do this, the head of a department may 
 change the erroneous decision of a subordinate 
 (U. S. V. Cobb, 11 Fed. Rep., 76); and appeals 
 may be taken to the head of the department 
 because of his supervisory powers over the 
 whole business of the department (Knight v. 
 U. S. Land Assn., 142 U. S., 161). In such 
 cases the appeal should be to the head of the 
 department and not to the President. (10 Op. 
 Atty. Gen., 526.) 
 
 Sec. 421. [Chiefs of Bureaus.] The chiefs of the several Bureaus in the 
 Department of the Navy shall be appomted by the President, by and with the 
 advice and consent of the Senate, from the classes of officers mentioned in the 
 next five sections respectively, or from officers having the relative rank of 
 captain in the staff corps of the Navy, on the active fist, and shall hold their 
 ofiices for the term of four years. — (5 July, 1862, c. 134, ss. 1, 2, v. 12, p. 510; 
 3 Mar., 1871, c. 117, s. 10, v. 16, p. 537.) 
 
 Amendment to this section was made by act 
 of March 3, 1899, section 7 (30 Stat., 1006), 
 by changing the words ' ' the relative rank 
 of " to read ' ' the rank of . " 
 
 Assistants to chiefs of bureaus are specifically 
 provided for by the following laws: Biu'eau 
 of Medicine and Surgery, section 1375 Re- 
 vised Statutes. Bureau of Navigation, act 
 of March 3, 1893 (27 Stat., 717). Bureau of 
 Supplies and Accoimts, acts of July 26, 
 1894 (28 Stat., 132); March 3, 1899 (30 Stat., 
 1038) ; and f^ebruury 25, 1903 (32 Stat. , 890). 
 Bureau of Orcbiance, act of May 4, 1898 (30 
 Stat., 373). Bureau of Steam Engineeiing, 
 actof March3, 1905 (33 Stat., 1111). Bureau 
 of Yards and Docks, Bureau of Construc- 
 tion and Repair, Office of the Judge Advo- 
 cate General, and Office of Chief of Naval 
 Operations, act of August 29, 1916 (39 Stat. 
 558). 
 
 Judge Advocate General is to be appointed 
 ' ' from the officers of the Navy or the Marine 
 Corps." (Act June 8, 1880, 21 Stat., 
 164.) 
 
 Pay of chiefs of bureaus was fixed by section 1565, 
 Revised Statutes, as highest pay of gi'ade 
 to which they belong, not below that of 
 commodore; the act of llarch 3, 1899, section 
 7 (30 Stat., 1005), provided that they 
 should receive the same pay and allowances 
 as a brigadier-general in the Army: the act 
 of May 13, 1908 (35 Stat. , 128), provided that 
 their pay and allowances "shall be the 
 
 highest pay of the gi-ade to which they 
 belong, and not below that of rear admiral 
 of the lower nine;" the act of June 24, 1910 
 (36 Stat., 607), provided that their pay and 
 allowances should be the highest shore- 
 duty pay and allowances of the rear admiral 
 of the lower nine; and the act of August 
 22, 1912 (37 Stat., 328), repealed the pro- 
 vision of the act of June 24, 1910, without 
 making any further provision on the sub- 
 ject. [Act of May 13, 1908, was revived by 
 the law last quoted. Comp. Dec, June 22, 
 1916, file 26254-2045.] By act of July 1, 
 1918 (40 Stat., 717), chiefs of bureaus in 
 the Navy Department are to receive the 
 same pay and allowaxices as chiefs of bu- 
 reaus in the War Department. 
 
 Pay of Chief of Na\'al Operations shall be 
 $10,000 per annum (act Aug. 29, 1916, 39 
 Stat., 558); and he shall have such allow- 
 ances as are or may be prescribed by or in 
 pursuance of law for the grade of Cfeneral 
 in the Army. (Act July 1, 1918, 40 Stat., 
 716.) 
 
 Pay of Judge Advocate General was the high- 
 est pay of a captain in the Navy or the pay 
 and allowances of a colonel in the Marine 
 Corps under the act of June 8, 1880 (21 
 Stat., 164), as amended by act of June 5, 
 1896 (29 Stat., 251); by act of July 1, 1918 
 (40 Stat., 717), he is to receive the same 
 pay and allowances as the Judge Advocate 
 General of the Army. 
 
 362 
 
Navy Department. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 421. 
 
 Eank of chiefs of bureaus was fixed as commo- 
 dore by sections 1471 and 1472, Revised 
 Statutes; the act of March 3, 1899, section 7 
 (30 Stat., 1005), provided that they should 
 have rank of rear admii-al, if below that 
 grade; the act of July 1, 1918 (40 Stat., 717), 
 gave them rank corresponding to that of 
 chiefs of bureaus in the War Department. 
 Rank of Judge Advocate General was that of 
 captain in the Navy or colonel in the 
 Marine Corps, under the act of June 8, 1880 
 (21 Stat., 164), as amended by act of June 
 5, 1896 (29 Stat., 251); by act of July 1, 
 1918 (40 Stat., 717), he is given rank cor- 
 responding to that of the Judge Advocate 
 General of the Army. 
 Rank of Chief of Naval Operations is that of 
 Admiral. (Act Aug. 29, 1916, 39 Stat., 
 558.) 
 Retirement of Chiefs of the Bui'eaus of Medicine 
 and Siu-gery, Supplies and Accounts, 
 Steam Engineering [now Engineering] and 
 Construction and Repair, with rank of com- 
 modore [now rear admiral] , if retired for age 
 or length of service, was authorized by sec- 
 tion 1473, Revised Statutes. 
 Retirement of any officer who shall serve as 
 chief of a bureau "and shall subsequently 
 be retired," with "the rank, pay, and al- 
 lowances authorized by law for the retire- 
 ment of such bureau chief, ' ' was authorized 
 by act of May 13, 1908 (35 Stat., 128). 
 Retirement. — Chiefs of bureaus eligible for 
 retirement after 30 years' service were 
 entitled to the permanent rank, title, and 
 emoluments of a chief of bureau, while on 
 the active list, the same as they would 
 have received if retired for age or length of 
 service. (Act June 24, 1910, 36 Stat., 607.) 
 This provision was repealed by act of Au- 
 gust 22, 1912 (37 Stat., 328), which contained 
 a proviso that no officer who had received 
 the benefits of the act of 1910 should be 
 deprived thereof on account of such 
 repeal. 
 Retirement of Chief of Naval Operations shall 
 be with the lineal rank and retired pay to 
 which he would be entitled if not so serv- 
 ing. (Act Aug. 29, 1916, 39 Stat., 558.) 
 Service. — Any officer with the rank of rear 
 admiral who has heretofore served a full 
 term and is now serving as chief of any 
 bureau of the Navy Department shall be 
 credited with service for all purposes as 
 provided by section 1486 of the Revised 
 Statutes, and nothing herein contained 
 shall operate to increase the rank or pay 
 of any such officer as now authorized by 
 law. (Act July 11, 1919, 41 Stat., 140.) 
 Staff officers who have served a full term as 
 chief of bureau were thereafter exempted 
 from sea duty, except in time of war, by 
 section 1436, Revised Statutes. 
 Titles of Chiefs of Bureaus of Medicine and 
 Sin-gery, Supplies and Accounts, Steam 
 Engineering [now Engineering], and Con- 
 struction and Repair, shall be Siu-geon-Gen- 
 eral. Paymaster General, Engineer in Chief, 
 and Chief Constructor, respectively. (Sec. 
 1471, R. S.) 
 
 I. Appointment of Chiefs of Bureaus. 
 II. Term of Office, 
 
 III. Status of Chiefs of Bureaus. 
 
 IV. Rank, Titles, and Precedence. 
 
 V. Pay of Chiefs of Bureaus and Assist- 
 ants. 
 VI. Retirement of Chiefs of Bureaus. 
 VII. Assistants to Chiefs of Bureaus. 
 
 I. Appointment of Chiefs of Bureaus. 
 
 Who may be appointed chiefs of bu- 
 reaus. — The act of July 5, 1862, reorganizing 
 the Navy Department (12 Stat., 510), estab- 
 lished eight bureaus therein, and in the second 
 section made the following provisions with 
 respect to the appointment of chiefs: "The 
 President of the United States, by and with the 
 advice and consent of the Senate, shall appoint 
 from the List of officers of the Navy, not below 
 the grade of commander, a chief for each of the 
 Bureaus of Yards and Docks, Navigation, 
 Equipment and Recruiting, and of Ordnance, 
 and shall in like manner appoint a chief of the 
 Bureau of Construction and Repair, who shall 
 be a skillful naval constructor; and shall also 
 appoint a chief of the Bureau of Steam Engi- 
 neering, who shall be a skillful engineer, and be 
 selected from the list of chief engineers of the 
 Navy; and shall also appoint a chief of the 
 Bureau of Medicine and Surgery, who shall be 
 selected from the list of surgeons of the Navy; 
 and a chief of the Bureau of Provisions and 
 Clothing, who shall be selected from the list of 
 paymasters of the Navy of not less than ten 
 years standing." 
 
 The subsequent act of March 3, 1871, which 
 prescribes the number, rank, and pay of the 
 officers of the various staff corps of tha Navy, 
 contained near the close of the tenth section 
 the following pro\iso (sec. 10, chap. 117, 16 
 Stat., 537): ^^And provided further, That chiefs 
 of bureaus may be appointed from the officers 
 having the relative rank of captain in the staff 
 corps of the Navy on the active Hst." 
 
 The commissioners who drafted the Revised 
 Statutes treated the act of 1871, not as super- 
 seding but as supplementing the act of 1862, 
 and enlarging the power of the President with 
 respect to the appointment of chiefs, so they 
 brought the two together in section 421, with 
 this explanation (Commissioner's Draft Rev. 
 Stats., p. 235): 
 
 "The Commissioners have treated the act of 
 1871, cited in the margin, not as repealing or 
 superseding the restrictions in the act of 1862 
 on the appointment of chiefs of bureaus, but as 
 giving an alternative or optional power of 
 appointment; so that the President may make 
 a given appointment either from the class 
 indicated by the act of 1862 or from that indi- 
 cated by the act of 1871, as he judges best." 
 
 Congress adopted the revision as recom- 
 mended, thus giving its apparent approval to 
 the intsi-jiretation placed on the acts of 1862 
 and 1871 by the commissioners. (22 Op. Atty. 
 Gen., 47; see also note to section 422, Pv,. S.) 
 
 Retired ofl3.cer may be appointed. — Sec- 
 tion 421, Revised Statutes, as punctuated, 
 would apparently limit appointments to officers 
 
 54641°— 22- 
 
 24 
 
 363 
 
Sec. 421. 
 
 PL 2. REVISED STATUTES. 
 
 Navy Department. 
 
 on the active list, the clause, "on the active 
 list." being separated from the other clauses by 
 commit, and therefore qualifpng them all. 
 Without the commas, the words '"on the active 
 Ust' ' apply to appointments from the staff corps 
 only. The original statutes wliich are consoli- 
 dated in section 421 restricted appointments 
 to the active list, only where made from the 
 staff corps. Tlie change in the law, if made, 
 rest-^, tlierefore, upon the mere in.sertiou of a 
 comma in the revision. Wliere doubt exists 
 as to the meaning of a section of the Revised 
 Statutes, it is atlmissible in construction to 
 se(>k: liglit in the hi.story of the legislation. 
 AI.SO, a construction that tlie revision amends 
 the law Ls not favored. Nor is a construction 
 favored which is restrictive of the right of 
 selection in making appointments. Accord- 
 ingly, held, -while not tree from doubt, that a 
 retired line officer is eligible for appointment as 
 Chief of the Bureau of Navigation. (File 21-5, 
 Dec. 11, 1907, Opinion of Solicitor. See also 
 22 Op. Atty. Gen., 47, noted above.) 
 
 The statute authorizing the employment of 
 retired officers on active duty would not em- 
 power the Secretary of the Navy to order a, 
 retired officer to perform the duty of Cliief of 
 the Biu-eau of Navigation. Doubtless, however, 
 such statute should be liberally construed, and, 
 in so far as it has any bearing on the matter, its 
 obvious puj-pose wiis to enlarge the eligiljility 
 of retired officers for active duty. The inten- 
 tion of Congress in passing it was to make 
 retired officers generally available for whatever 
 active duty they were able to perform. (File 
 21-5, Dec. 11, 1907, opinion of Solicitor.) 
 
 The selection of the Judge Advocate General 
 is not limited to the active Ust of the Navy or 
 Marine Corps, but may be made from the re- 
 tired list as well, since officers on the retired 
 list come witliin the description of "officers" 
 within the meaning of the act authorizing the 
 appointment to be made. (8 Comp. Dec, 895.) 
 
 Retired. oflB.cer not eligible. — Retired 
 officers are not eligible for appointment as chiefs 
 of bureaus, since section 421 in terms requires 
 that bureau chiefs shall be appointed from 
 officers on the active list. This requirement is 
 not modified by the subsequent statute with 
 respect to the assignment of retired officers to 
 active duty, since by such assignment officers 
 are not in fact placed on the active list, but are 
 merely detailed for the performance of active 
 duty. (See file 21, Nov. 25, 1902, Op. J. A. G.) 
 
 The construction placed upon the law by the 
 department, in its practice, is against the eligi- 
 bility of retired officers for appointment as 
 chiefs of bureaus. Officers so serving have, 
 during their terms of office, been retired with- 
 out vacating their positions; but it is under- 
 etood that no officers on the retired Ust, during 
 the past 15 years at least, have been selected to 
 act as chiefs of bureaus, (l^^le 21-5, Dec. 11, 
 1907, Opinion of SoUcitor.) 
 
 It would seem that under the laws authoriz- 
 ing the assignment of retired naval officers to 
 active duty, the Secretary of the Naw is not 
 authorized to assign a retired officer to duty as 
 chief of a bureau in the Navy Department in 
 case of a vacancy, when the officer is below the 
 required grade as fixed by sections 421-426, 
 Revised Statutes. (28 Op. Atty. Gen., 489.) 
 
 As to effect of retirement upon status of officer 
 serving as chief of bureau, see below under "VI. 
 Retirement of Chiefs of Bureaus." 
 
 Temporary vacancies. — A naval officer 
 assigned to duty as an assistant to the chief of a 
 bureau in the Navy Department is not author- 
 ized by section 178, Revised Statutes, in case 
 of the death, resignation, absence, or sickness 
 of the incumbent, to perform the duties of such 
 chief until a successor is appointed or tlie 
 absence or sickness shall cease, unless the ap- 
 pointment of .such assistant is specifically pro- 
 vided for by statute. In determining who is to 
 act in the place of a chief of bureau during his 
 absence, section 178, Revised Statutes, is to be 
 read in connection with the laws which make 
 provision for the appointment of officers in the 
 bureaus of the Navy Department. Where the 
 highest officer recognized by statute after the 
 cliief of the bureau is the chief clerk in such 
 bureau, the latter succeeds to the duties of the 
 chief during a temporary absence unless other- 
 wise directed by the President in accordance 
 wT.th section 179, Revised Statutes. (19 Op. 
 Atty. Gen., 503.) 
 
 Officers who hold commissions in the naval 
 service issued by the President, by and with 
 the ad\dce and consent of the Senate, but do 
 not hold any office in the Na\'y Department or 
 in a bureau by such appointment of the Presi- 
 dent after confirmation by the Senate, can not 
 be legally designated by the President to act as 
 cliiefs of biu-eaus, under section 179, Re\ised 
 Statutes, in the absence of the incumbents. 
 Accordingly, an officer of the Navy detailed as 
 assistant to the chief of a bureau in the Navy 
 Department, but whose appointment as such 
 assistant is not specifically provided for by 
 statute, is not eUgible for designation by the 
 President, under section 179, Revised Statutes, 
 to act as chief of bureau in the latter's al)sence. 
 There is no more authority to authorize such an 
 officer to perform the duties of the vacant office 
 than there is to authorize any officer of the 
 Navy not connected directly \vith the business 
 of the department. (28 Op. Atty. Gen., 95.) 
 
 During a vacancy in the office of chief of a 
 bureau in the Navy Department, the Secretary 
 or Acting Secretary of the Navy may sign mail 
 requiring the signature of the chief of bureau. 
 (File 22724-7f, May 14, 1909; see also 28 Op. 
 Atty. Gen., 487, noted under sec. 179, R. S.; 
 compare Williams Eng. and Cont. Co. v. U. S., 
 55Ct. Cls., 349.) 
 
 A vacancy caused by the retirement of the 
 chief of a bureau in the Navy Department can 
 not be temporarily filled by the President 
 under sections 178-181, Revised Statutes. (27 
 Op. Atty. Gen., 337.) 
 
 For other cases, see notes to sections 177-182, 
 RoA-ised Statutes. 
 
 II. Term of Office. 
 
 Commencement of term. — The four-year 
 term of office of a chief of bureau commences on 
 the date of his confirmation by the Senate. 
 (10 Comp. Dec, 56.) 
 
 "TMiere a new commission is accepted, it 
 supersedes the old one; and the four years pre- 
 scribed by law as the official term of the ap- 
 pointee must commence to run from its date." 
 
 364 
 
Navy Department. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 421. 
 
 (2 Op. Atty. Gen., 333. This related to the 
 appointment of a Navy agent, wMchwas for 
 the term of four years under laws then in force, 
 the same as chiefs of bureau.) 
 
 The law, of course, controls special language 
 in the nomination and confirmation. Section 
 421, Revised Statutes, makes the term of a chief 
 of bureau four years from the appointment with 
 the consent of the Senate. The term during 
 which he served under a temporary appoint- 
 ment was, by law, a different term from that 
 which commenced when he was appointed with 
 the consent of the Senate. Accordingly, where 
 an officer was commissioned as chief construc- 
 tor in April, 1878, after confirmation by the 
 Senate, "from April 28, 1877," having pre- 
 viously served under a recess appointment, held 
 that notwithstanding the special wording of the 
 nomination and the confirmation by the Senate, 
 the term of office of the appointee as prescribed 
 by section 421, Re\'ised Statutes, must be 
 deemed to begin from the date of his appoint- 
 ment, namely, in April, 1878, and not from 
 "April 28, 1877," the date specified in the 
 nomination. (16 Op. Atty. Gen., 656.) 
 
 "The fiction famiUar to lawy-ers under the 
 phrase nunc pro tunc [now for then] has no 
 application in cases of appointments to office. 
 Such executive action cannot, in the nature of 
 things, operate by relation. Especially must 
 that be so where, as here, the office during one 
 portion of the very time to which the regular 
 appointment and commission are made to re- 
 late had been occupied by the appointee under 
 another competent appointment and commis- 
 sion, and during a second portion had been 
 occupied by others in due course of law." (16 
 Op. Atty. Gen., 656.) 
 
 Nominations to take effect from past dates 
 are familiar in the naval service, but these are 
 made under statutes relating to promotions, to 
 fill vacancies occurring in due course, which are 
 not apphcable to the appointment of an officer 
 as chief of bureau. (File 21-5, Dec. 11, 1907.) 
 
 Where a chief of bureau retired while serving 
 under an ad interim commission, held that, if 
 8uch retirement rendered him ineligible for 
 regular appointment by and with the advice 
 and consent of the Senate [as to which point see 
 cases noted above], the difiiculty could not be 
 overcome by wording the nomination to take 
 effect from a prior date when he was on the 
 active list and when his ad interim commission 
 as chief of bureau took effect. (File 21-5, Dec. 
 11, 1907.) 
 
 Expiration of term. — "The chief of a 
 bureau in the Na\^ Department can not law- 
 fully hold over after the expiration of the term 
 for which he was appointed. The general rule 
 is that where Congress has not authorized the 
 officer to hold over, his incumbency must be 
 deemed to cease at the end of his term, though 
 no appointment of a successor may then be 
 made." (17 Op. Atty. Gen., 648; see also 
 Romero v. U. S.^ 24 Ct. Cls., 331.) 
 
 There is nothing in section 421 nor in any 
 other of which I am aware which confers au- 
 thority upon the incumbent of the office of 
 chief of bureau to continue therein after the 
 expiration of his term; and I am of opinion 
 that in the absence of a statutory provision con- 
 ferring it, such authority does not exist. Con- 
 
 gress has in terms provided that certain officers 
 whose appointments are for a definite term shall 
 hold until their successors are appointed and 
 qualified (see, for example, sees, 1841,1843, 1875, 
 and 1876, R. S., concerning certain appoint- 
 ments in Tenitories); from which it is plainly 
 to be inferred that officers not thus authorized 
 can not lawfully hold over: "Expressio uniua 
 est exclusio alterius" — -the expression of one 
 thing is the exclusion of another. (17 Op. 
 Atty. Gen., 648, citing U. S. v. Eckford's Ex- 
 ecutors, 1 How., 250, and 14 Op. Atty. Gen., 
 262, 263.) 
 
 Chiefs of bureaus in the Navy Department 
 do not hold over after expiration of the term of 
 office for which they were appointed. In the 
 draft of a proposed new revision of the statutes, 
 the revisers added to section 421 the provision, 
 "or until their successors are appointed and 
 qualified," explaining that this addition was 
 made in view of the opinion of the Attorney Gen- 
 eral above cited ; but of course these words are 
 not yet incorporated into the statute. Accord- 
 ingly, where the term of the chief of a bureau 
 in the Navy Department expires while the 
 Senate is not in session, a recess commission 
 should appropriately be issued, filling the 
 vacancy thus created. (File 21-3, Nov. 13, 
 1907, Opinion of Solicitor. As to inherent 
 power of President to fill temporary vacancies, 
 see notes to sees. 177 and 181, R. S.) 
 
 Removal by President. — The President 
 has the power, without the concurrence of the 
 Senate, to remove an officer (United States 
 attorney) who was appointed for a fixed term, 
 prior to the expiration of such term. (Parsons 
 V. U. S., 167 U. S., 324; for other cases, see note 
 to Constitution, Art. II, sec. 2, clause 2.) 
 
 As to trial by court-martial, see below, "III. 
 Status of Chiefs of Bureaus. ' ' 
 
 III. Status of Chiefs op Bureaus. 
 
 Not civil offices.^ — It is very clear that the 
 office of Secretary of the Navy is a civil office. 
 Congi-ess has not attempted to confine the ap- 
 pointing power to any class or profession m 
 choosing the incumbent for that position. But 
 this can not be said of the several bureaus of the 
 Navy Department, the chiefs of which must be 
 appointed from certain classes of officers of the 
 Navy. Wlien, therefore, it is said that these 
 offices are civil, it must be shown satisfactorily 
 why it was that Congress denied the appointing 
 power the same range of selection in filling 
 them as in filling the office of Secretary of the 
 Navy and civil offices generally. _ It is quite 
 clear to me that if Congress had intended to 
 make the several bureaus of the Navy Depart- 
 ment civil offices, it would have provided for 
 the appointment of civilians to fill them, and 
 not frustrated its purpose to secure the benefits 
 of a civil administration by declaring that these 
 offices should be filled by naval officers exclu- 
 sively. (18 Op. Atty. Gen., 176.) 
 
 Rank, title, pay, and retirement are the 
 indicia of military, not civil, officers. No 
 statute directly or indirectly classes these 
 bureau chiefs as civilians, and it does not 
 appear that they have ever been so regarded in 
 the department. Gi^dng them a dual charac- 
 ter, civil and military, might not only lead to 
 
 365 
 
Sec. 421. 
 
 Pt.2. REVISED STATUTES: 
 
 Navy Department. 
 
 confusion and inconvenience in the depart- 
 ment, but deprive the chiefs themselves of 
 some advantages secured to tliem bv tlie oppo- 
 site practice. (Smith v. U. S., 26 Ct. Cls., 143.) 
 
 Trial by court-martial. — "Under every 
 system of niilitary hvw, for the government of 
 either land or naval forces, the jurisdiction of 
 courts-martial extends to the trial and punish- 
 ment of acts of military' or naval ofticers wliich 
 tend to bring disgrace and reproach upon the 
 ser\dce of which they are members, whether 
 those acts are done in the performance of mili- 
 tary duties, or in a ci\'il position, or in a social 
 relation, or in private business." (Smith v. 
 \Mutney, 116 U. S., 168, 183.) 
 
 The ('hief of the Bureau of Medicine and 
 Surgery in the Kavy department is amenable 
 to the jurisdiction of a naval court-martial upon 
 charges and specifications preferred against him 
 for acts done as such chief. (18 Op. Attv. Gen., 
 176; see also W ales v. Whitney, 114 U. S., 564.) 
 
 The chief of a bureau (Paymaster General), 
 may be removed from that oflice by Bentence of 
 court-martial. (Smith v. U. S., 26 Ct. Cls., 143; 
 see also Smith v. Whitney, 116 U. S., 181.) 
 
 "As to the case of staff bureau ofTicers whose 
 service has not been creditable and who have 
 been guilty of misconduct or malfeasance in 
 office, the law and practice provide for that 
 case. Such an officer would be relieved of his 
 duties, or, depending upon the seriousness of 
 the offense, would be court-martialed. And 
 section 1446, Revised Statutes, provides that no 
 officer of the Kavy shall be placed on the 
 retired list becauss of misconduct, but he shall 
 be brought to trial by court-martial for such 
 misconduct." (25 Op. Atty. Gen., 294, 298.) 
 
 The office of chief of bureau is a military one, 
 to the extent that its incumbent is amenable to 
 trial by court-martial. (5 Comp. Dec, 822.) 
 
 The Judge Advocate General of the Army 
 may be tried by court-martial and suspended 
 from rank and duty pursuant to the sentence 
 of such court. (Swaim v. U. S., 28 Ct. Cls., 173; 
 165 U. S., 553; see also note to sec. 179, R. S.) 
 
 Dual status of bureau chiefs. — The law 
 requires the President to appoint chiefs of 
 bureaus in the Navy Department from the list 
 of 'officers in the Navy. Compliance with this 
 law certainly could not have the effect to with- 
 draw the appointed officer from that list, or to 
 deprve him of the rank or pay to which he was 
 or might become entitled by law. Such a 
 result would involve injustice too gross to be 
 imputed to Congress. The act limited the 
 selection to naval officers, not below a certain 
 grade, for the purpose of securing at the head 
 of the bureaus named, the skill and experience 
 ol prolonged service. But nothing could be 
 more unjust, indeed, more absurd, than to de- 
 prive the Navy of officers who possessed these 
 qualities, by transferring them to positions 
 which, under the law, they could hold but four 
 years, when, if not reappointed, tliey would be 
 retired from the public service altogether. The 
 law has no such operation. It simply means 
 that the officers appointed shall, for the term 
 specified, be assigned to these positions, and it 
 implies no withdrawal from the list of officers, 
 and no loss of rank or pay. If the officer so 
 assigned receive less pay by virtue of his rank 
 in the Navy than the salary provided by the 
 
 law for the chief of bureau, he is entitled to 
 draw the latter salary in lieu of his pay. But 
 if his naval pay exceed the salary of the office, 
 he is not bound to accept the latter and relin- 
 quish the former. If he be a rear admiral, he 
 is entitled to the pay allotted by the law to the 
 class of service he renders. (10 Op. Atty. Gen., 
 377; 27 Op. Attv. Gen., 337; Op. Attv. Gen., 
 Mar. 15, 1911, file 22724-16:3.) 
 
 The appointment by the President, by and 
 with the advice and consent of the Senate, of a 
 naval officer to be Chief of tlie Bureau of Na^•i- 
 gation is an investiture of him with an addi- 
 tional office. Wliile Chief of the Bureau of 
 Navigation he remains a captain in the NaAy. 
 By virtue of the former office, his orders have 
 the force and effect of an order emanating from 
 the Secretary of the Navy, and while he con- 
 tinues to hold said office he has the higher rank 
 attached thereto by law. (17 Op. Atty. Gen., 
 154; see also, as to Chief of Bureau of Steam 
 Engineering, 27 Op. Atty. Gen., 340.) 
 
 A naval officer by accepting the office of Cliief 
 of the Bureau of Steam Engineering did not 
 vacate the office and grade he already held of 
 captain. His appointment as chief of bureau 
 invested him with an additional office and an 
 additional rank. His status "while holding 
 said office" was that of an officer ot the line of 
 the 'Ka.Yj of the grade of captain, with the addi- 
 tional rank of rear admiral and the additional 
 office of Chief of the Bureau of Steam Engineer- 
 ing. (15 Comp. Dec, 860, citing 17 Op. Atty. 
 Gen., 154, and 10 Op. Atty. Gen., 378.) 
 
 An officer appointed to be chief of one of the 
 Navy bureaus is in effect detailed to perform 
 shore duty, retaining during the period of his 
 incumbency his regular rank and grade on the 
 Na\-y Register, and also filling the post of chief 
 of bureau with the rank and emoluments inci- 
 dental thereto. (27 Op. Atty. Gen., 337, 341, 
 citing 10 Op. Atty. Gen., 378, 379.) 
 
 A chief of bureau in the Na\^ Department is, 
 therefore, an incumbent of two offices. First, 
 he is an officer of the Na-\y holding in this case 
 the rank of captain; second, he had been de- 
 tailed by the President, by and with the ad^dce 
 and consent of the Senate, to hold the office of 
 chief of bureau, with the rank of rear admii-al 
 for a period of four years. (27 Op. Atty. Gen., 
 337, 341.) 
 
 For other cases see below, "TV. Rank, Titles, 
 and Precedence." and particularly Opinion of 
 Attorney General, March 15, 1911 (file 22724- 
 16:3) noted under "Rank of chiefs of bureaus." 
 
 Ofl&ce of chief of bureau not a "grade" 
 in the Navy. — While the office of chief of 
 bureau is a military one, to the extent that its 
 incumbent is amenable to trial by court-mar- 
 tial, the office itself does not constitute a grade 
 in the Navy. The next higher "grade" re- 
 ferred to in section 11 of the Na^-y personnel act 
 (i\Iar. 3, 1899, 30 Stat. , 1007) is one of the differ- 
 ent gradations in the line of the Na^^ or in the 
 several staff corps, and does not include the of- 
 fice of chief of bureau. (5 Comp. Dec, 822.) 
 
 The grade to which an officer belongs, under 
 section 1457, Revised Statutes, while liolding 
 the office of Chief of the Bureau of Navigation 
 is that of captain, which in this case was his 
 regular grade in the line, and not that of the 
 rank incidental to his temporary occupation of 
 
 366 
 
Navy Department. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 421. 
 
 another and distinct office. For it is by virtue 
 of liis office of captain, and not of chief of bu- 
 reau, that he is entitled to examination for pro- 
 motion and that he is entitled or subject to re- 
 tirement. It may be further remarked that, 
 within the language of section 1457, he "con- 
 timies to be borne on the Navy Register" as 
 captain, and that the moment he ceases to be 
 chief of Ijureau he loses his temporary rank in- 
 cident to that office. (17 Op. Atty. Gen., 154.) 
 
 That Congress regards the grade to which the 
 bureau chief belongs as something different 
 from the position of chief of bureau is further 
 evidenced by the provisions of the naval appro- 
 priation act of May 13, 1908 (35 Stat., 128), that 
 "the pay and allowances of chiefs of bureaus in 
 the Na\'y Department shall be the highest pay 
 of the grade to which they belong, and not below 
 that of rear admiral of the lower nine." (27 
 Op. Atty. Gen., 376, 383; 15 Comp. Dec, 860.) 
 
 As I have lieretofore pointed out, the office of 
 chief of bureau in tlie Navy Department is not 
 designated in the acts of Congress as a grade. 
 On the contrary, in section 421 of the Bevised 
 Statutes it is called an "office," and in section 
 1471 a "position"; by section 1471 the Chief of 
 the Bureau of Construction and Kepair has tlie 
 "title" of Chief Constructor. Under the act of 
 March 3, 1899, the incumlient, if an officer be- 
 low the rank of rear admiral, has that "rank" 
 while holding the office. The office of Chief 
 Constructor was not formerly a grade in the 
 Navy, and was not made such because the rank, 
 title, and emoluments of the incumbent, there- 
 tofore temporary, were made permanent 1)y the 
 act of June 24, 1910 [now repealed]. (28 Op. 
 Atty. Gen., 526, citing 27 Op. Atty. Gen., 376, 
 379. See also file 5038-19, Feb. 29, 1912.) 
 
 Neither, in my opinion, was the honorary 
 "rank " of rear admiral, which he held as an in- 
 cident to his occupation of the office of chief of 
 l)ureau, a "grade" within the meaning of the 
 act of June 7, 1900. (31 Stat., 703, reenacted, 
 with modifications, by act Aug. 22, 1912, 37 
 Stat., 329. )_ The grade from which he was re- 
 tired , within the meaning of said act, was there- 
 fore tliat of captain. (15 Comp. Dec, 860.) 
 
 Ofl3.ce held to be a grade. — Section 1457, 
 Ke^ised Statutes, which occurs in a chapter of 
 law relating to retired officers of the Na^y in 
 general, although perhaps especially contem- 
 plating the line, provides that officers retired 
 from active serAdce shall be placed on the re- 
 tired list of officers of the gixide to wliich they 
 belonged, respectively, at the time of their 
 retirement, and continue to be Itorne on the 
 Navy I .egister. Grade here appears to mean 
 rank in the line, or by relation to the line — 
 using rank and grade interchangealily, as those 
 words sometimes are used , and not as indicating 
 an officer's number in a particular grade. Sec- 
 tion 1471 speaks of the headship of a bureau as a 
 "position"; section 1472 as an office; section 
 1473 again as a position; and the Navy Regula- 
 tions, incorporating the statutes and adding to 
 thena administrative details, use both terms. 
 I think, however, that grade may include such 
 staff office-i, and may mean in an untechnical 
 sense and by a certain equity, the liighest post 
 to the rank and title of which an officer has at- 
 tained upon his retirement, and that section 
 1457 fairly includes the office or position of Pay- 
 
 master General. (25 Op. Atty. Gen., 294; dis- 
 approved, 27 Op. Atty. Gen., 376.) 
 
 By the use of the word "grade" Congress 
 intended to indicate any marked distinction 
 fixed by law among officers which would be 
 expressed in their commission, title, or pay, 
 not excluding chiefs of bureaus having a cer- 
 tain rank. (31 Op. Atty. Gen., 505, 515.) 
 
 For other cases, see below, "VI. Retirement 
 of Chiefs of Bureaus." 
 
 IV. Rank, Titles, and Precedence. 
 
 Rank of chiefs of bureaus. — The Navy per- 
 sonnel act of March 3, 1899, section 7 (30 Stat., 
 1005), provides that "when the office of chief 
 of bureau is filled by an officer below the rank 
 of rear-admiral, said officer shall, while holding 
 said office, have the rank of rear-admiral." 
 Similar provisions were previously contained 
 in sections 1471 and 1472, Revised Statutes, 
 except that the rank of bureau chiefs was there 
 fixea as the "relative rank" of commodore 
 instead of the actual rank of rear admiral. 
 
 By act of July 1, 1918 (40 Stat., 717), chiefs 
 of bureaus in the Navy Department, including 
 the Judge Advocate General, shall while so 
 serving have corresponding rank as prescribed 
 by law for chiefs of bureaus of the War Depart- 
 ment and the Judge Advocate General of the 
 Army. 
 
 Of coiuse, it is not to be doubted that the 
 advanced rank and pay attached to service as 
 a bureau chief ceases when the term of service 
 is over and other active service resumed. The 
 former relative rank pro tempore, the present 
 actual rank, are only while holding said posi- 
 tion; and no doubt a corollary to be drawn 
 from this is that the title falls also if and when 
 an officer returns fx'om active service in the 
 bureau to active service in his corps. (25 Op. 
 Atty. Gen., 294; other portions of this opinion 
 were disapproved in 27 Op. Atty. Gen., 376.) 
 
 The moment an officer ceases to be chief of 
 bureau he loses his temporary rank incident to 
 that office. _ (17 Op. Atty. Gen., 1.54.) 
 
 In the opinion of the department, where the 
 law creates an office with a fixed term and con- 
 fers upon the holder of that office a certain rani 
 dming his occupancy thereof, the rank thus 
 conferred ends for all purposes and in all re- 
 spects with the term of the office, except as 
 otherwise proAided by law. When the terms 
 of office held by the chiefs of bureaus to wliich 
 the rank of rear admiral was by statute annexed 
 have ended, with them have ended the accom- 
 panying rank. Without a new appointment 
 the officers holding these j)ositions would return 
 to their respective ranks in the line or staff of 
 the Navy, and their ranks there would be af- 
 fected in no way by the fact that they had, as 
 an incident of service in the bureaus, tempo- 
 rarily enjoyed a higher rank. All the force and 
 effect of their commissions as chief of bureau 
 have been expended when the term of office 
 ends, and unless reappointed they would 
 hold only effective and living commissions as 
 officers of their regular grade in the Navy. 
 (File 4649--02, July 17, 1902.) 
 
 "In the course of my investigation it has 
 appeared that upon the appointment of Rear- 
 Admiral Taylor on the 29th day of April, 1902, 
 
 367 
 
Sec. 421. 
 
 Pt. 2. REVISED STATUTES. 
 
 Navy Department. 
 
 lis chief of the Bureau of Navigation, a com- 
 mission was issued to him as such ' with the rank 
 of rear-admiral from the 2')th dav of April 1902.' 
 This commission was erroni'ou.sly expressed, as 
 the provision of the 'Personnel Act' which 
 gives the rank of rear-admiral to the chiefs of 
 bureaus while holding such office is applicable 
 only in case the 'otfice is filled by an officer 
 below the rank of rear-admiral.' As at the 
 time Rear-Admiral Taylor was not an officer 
 within the description of the act, it had no 
 effect upon his rank and his commission as 
 chief of the Bureau of Navigation should not 
 have attempted to confer upon him a rank 
 which he already possessed independently of 
 the statute." (File 4G49-02 July 17, 1902; see 
 also 31 Op. Atty. Gen., 557.) 
 
 The Navy personnel act changed the rank of 
 chiefs of bureaus from the "relative rank of 
 commodore" to the "rank of rear-admiral." 
 New commissions were issued to those holding 
 the offices of chiefs of bureaus at the time of the 
 passage of this act, for the unexpired portions 
 of the terms for which they had been appointed, 
 "with the raiik of rear-admiral." It may well 
 be doubted whether these commissions were 
 not entirely superfluous. They were not of 
 such character as to amoimt to new appoint- 
 ments or reappointments. The chiefs of bu- 
 reaus were already appointed to their positions 
 for a period of four years, and the new rank 
 which they enjoyed came not by virtue of any 
 new appointment or commission but was 
 annexed to their office by statute law. (File 
 464&-02, July 17, 1902; see also file 22724-33, 
 Aug. 22, 191G; 22 Op. Atty. Gen., 480. As to 
 whether officers should be given new commis- 
 sions when merely advanced in rank, without 
 change in office or grade, see note to Constitu- 
 tion, Art. II, sec. 3.) 
 
 An officer of the Na\^'^ or Marine Corps serving 
 as Judge Advocate General has actual rank as 
 a captain in the Navy or a colonel in the Marine 
 Corps. His rank while he holds this office is 
 not an assimilated rank, but an actual rank. 
 His rank is a fact, not a courtesy. (Remey v. 
 U. R., 33 Ct. Cls., 218; 8 Comp. Dec, 895.) 
 
 The act of June 24, 1910 (36 Stat., 607) [re- 
 peated by act Aug. 22, 1912 (37 Stat., 328)], 
 provided that "all officers of the NaAy who are 
 now serving or shall hereafter serve as chief of 
 bureau in the Na^-y De])artment, and are eli- 
 gible for retirement after thirty years service, 
 shall have, while on the active list, the rank, 
 title and emolitments of a chief of bureau, in 
 the same manner as is already pro\'iiled by stat- 
 ute law for such officers upon retirement by 
 reason of age or length of service, and such offi- 
 cers after thirty years service shall be entitled 
 to and shall receive new commissions in accord- 
 ance with the rank and title hereby conferred." 
 Under this law a naval ofiicer who was a bureau 
 chief in the Na^y Department, and who attained 
 30 years' service, thereby becoming eligi])le for 
 retirement, was entitled to retain the rank, pay, 
 and emoluments of such bureau c:hief on the 
 active list if he then resigned or was reIllo^ ed 
 from his position of bureau chief and returned 
 to general service. This is the only interpre- 
 tation which can give force and effect to ail the 
 language used. For if the intention had been 
 to confer this "rank, title, and emoluments ' 
 
 only duruig the continuance of such ofiicer as 
 chief of bureau, this ])royision as to continu- 
 ance would have been (juite unnecessary; for 
 the rank, title, and emoluments would, of 
 course, contuuie unless otherwise pro%ided by 
 law so long as the officer continued in such 
 office, and the other provisions would have 
 meant precisely the same without this clause as 
 with it. The only possible effect of that clause 
 is to continue, as it i)lainly does, such rank, 
 title, and emoluments (hiring the time that the 
 officer remains on the active list of the Navy, 
 whether as bureau chief or otherwise. (28 Op. 
 Atty. Gen., 429; quoted in 28 Op. Atty. Gen., 
 529; and Op. Atty. Gen., Mar. 15, 1911, file 
 22724-16:3.) [The oflicers who received per- 
 manent commissions under tliis act prior to its 
 repeal and wlio were not affected by such 
 repeal were Rear Admiral R. F. Nicholson, 
 chief of the Bureau of Navigation, ( hief ( on- 
 structor ^\"ashington L. C apps. Paymaster Gen- 
 eral Eustace B. Rogers (I-ile 22724-18), and 
 Paymaster General Thomas J. Cowie.] 
 
 \\here the ofiicer was ser^dng as chief of bu- 
 reau on June 24, 1910, and then had 30 years' 
 service, he is entitled to a permanent commis- 
 sion from the date of the act. (Op. Atty. Gen., 
 Mar. 15, 1911, file 22724-16:3.) 
 
 A rear admiral of the senior nine, serving as 
 chief of the Biu-eau of Ordnance, should not be 
 given another commission imder the act of 
 June 24, 1910, as he already had the permanent 
 rank of rear admiral, and that act did not, there- 
 fore, confer any rank upon him. Also, the law 
 should not be construed so as to require the 
 doing of a futile or useless thing. (Op. Atty. 
 Gen., Mar. 15, 1911, file 22724-16:3). 
 
 The chief of the Bureau of Supplies and Ac- 
 counts, upon completion of 30 years' service, is 
 entitled under the act of June 24, 1910, to a per- 
 manent commission with the rank of rear admi- 
 ral, and not commodore. (Op. Atty. Gen., 
 Mar. 15, 1911, file 22724-16:3.) 
 
 Where an officer was serving as chief of bu- 
 reau on June 24, 1910, and then had 30 years' 
 service, he is entitled to a permanent commis- 
 sion from the date of the act, although before 
 such commission was issued he was retired. 
 Under these circumstances a commission under 
 the act of June 24, 1910, may be issued nunc pro 
 tunc, and confirmation by the Senate is not re- 
 quired. (File 22724-18, Dec. 4, 6, 1911, and 
 Jan. 3, 1912.) 
 
 The purpose of the act of 1910 qiute clearly 
 was to extend to chiefs of bureaus becoming 
 eligible for retirement the same privileges as 
 under the prior law they could claim upon ac- 
 tual retirement. This affords an adequate 
 motive for and explanation of the new legisla- 
 tion ; and it serves to show at once that the act 
 of 1910 had a logical and important purpose. 
 (28 Op. Atty. Gen., 531.) 
 
 The sole ])urpose of the act of June 24, 1910, 
 was to make permanent the rank, titl3, and 
 emoluments of an ofiicer serving as chief of 
 bureau, who had become eUgible for retirement 
 by reason of age or length of service, but who 
 preferred to remain on the active list. Accord- 
 ingly, the passage of said act and the issuing of 
 a permanent commission thereunder to the Chief 
 Constructor, did not operate to create a new 
 grade in the Construction Corps. No vacancy 
 
 368 
 
Navy Department. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 421. 
 
 was created thereby in the grade of naval con- 
 structor nor in the total number of naval con- 
 structors and assistant naval constructors pro- 
 vided by law. Since the office of cliief of 
 bureau was not a graile prior to the time the 
 incumbent became eligible to retirement after 
 30 years' service, it would seem necessarily to 
 follow that the mere issuance of another com- 
 mission "in accordance with the rank and 
 title" theretofore conferred, and the making 
 permanent of such theretofore temporary rank, 
 title, and emoluments, would not have the 
 effect of making it a grade. To hold otherwise 
 would operate to increase to that extent the 
 Naval Establishment, although there is no in- 
 dication of such an intention on the part of 
 Congress in the language of the statute. (28 
 Op. Atty. Gen., 526; followe I in case of line 
 ofhcer serving as Chief of the Bureau of Naviga- 
 tion, Op. Atty. Gen., Mar. 15, 1911, file 22724- 
 16:3.) 
 
 A line officer serving as Chief of the Bureau of 
 Navigation continues in his regalar grade, that 
 of captain, notwithstanding the issuance to him 
 of a permanent commission with the rank of 
 rear admiral in accordance vA\h the act of June 
 24, 1910. Accordingly, when he is reached in 
 regular course for promotion to the grade of rear 
 admiral, he must qualify physically and pro- 
 fessionally prior to such promotion. (Op. Atty. 
 Gen., Mar. 15, 1911, file 22724-16:3.) 
 
 The only way to give effect to the law of 
 June 24, 1910, as construed by the Attorney 
 General, is to hold that its result was to make 
 permanent the dual status formerly occupied 
 temporarily by the officer serA'ing as ( hief Con- 
 structor at the head of the Bureau of ( onstruc- 
 tion and Repair. Accordingly, held that such 
 oflicer continue«l to hold his regular place in 
 the grade of naval constructor, although at the 
 same time enjoying the rank, title, and emol- 
 uments of Chief ( onstructor under a permanent 
 commission. (File 5038-19, Feb. 29, 1912.) 
 
 Titles of chiefs of bureaus. — Unless the 
 numerous laws which have established the offi- 
 ces of the service or subsequently affected them, 
 positively affix or altogether prohibit the titles 
 which it is claimed or suggested should be used 
 by chiefs of bureaus, the matter is subject to 
 the administrative settlement of the Secretary 
 of the Navy, and does not involve legal ques- 
 tions upon which the Attorney General may 
 render an opinion. That is to say, the only 
 proper inquiry for the Attorney General is 
 whether, and how far, a rule has been laid down 
 by the statutes which restrains the disposition 
 of the subject by Executive order or depart- 
 ment regulation and usage. (25 Op. Atty. Gen., 
 122.) 
 
 Section 1471, Revised Statutes, as amended, 
 provides that the Chiefs of the Bureau of 
 Medicine and Surgery, SuppUes and Ac- 
 counts, Steam Engineering [now P^ngineering], 
 and Construction and Repair, "shall have, 
 respectively, the title of Surgeon-General, 
 Paymaster-General, Engineer-in- Chief, and 
 Chief Constructor." The titles thus fixed by 
 statute were not affected by the Navy per- 
 sonnel act of March 3, 1899 (30 Stat., 1005), 
 providing that "when the office of chief of 
 bureau is filled by an officer below the rank 
 of rear-admiral, said officer shall, while hold- 
 
 ing said office, have the rank of rear-admi- 
 ral," for the same act provided that it should 
 not be construed "as changing the titles of offi- 
 cers in the staff corps of the Navy." The bu- 
 reaus named in section 1471 are the staff bureaus 
 of the Navy, under the existing organization, 
 excepting that the Engineer Corps (steam engi- 
 neenng) has now been transferred to the line 
 by the personnel act of 1899. Accordingly, 
 held that the titles of the existing staff bureaus 
 are positively fixed by section 1471, Re\d8ed 
 Statutes, and are unchanged by the later legis- 
 lation of March 3, 1899. (25 Op. Atty. Gen., 
 122. See note to sec. 422, R. S., as to " line " 
 and "staff" bureaus as now existing.) 
 
 "Nor is it necessary to discuss and consider 
 the distinctions between 'rank,' 'grade,' and 
 'title,' which are different aspects or attributes 
 of office. It is sufficient to say that the terms 
 bespeak relations and functions of the thing, 
 and are not to be confounded ; and that a statute 
 which confers upon an officer the rank and pay 
 of another grade does not, also, necessarily con- 
 fer the title." (25 Op. Atty. Gen., 122, 123.) 
 
 Respecting bureaus \\hich, though aiding in 
 central administration, are not technically of 
 the staff, and respecting line officers serving as 
 chiefs of those bureaus, and respecting the 
 special case of the Judge Advocate General, in 
 all these cases the law lays down no explicit 
 rule relative to titles, and hence in those situ- 
 ations and aspects the subject may and should 
 be disposed of by Executive order, or Navy 
 regulations and u-sage, paying due regard to' 
 such logical inferences or uecessaiy effect re- 
 specting staff t'.tles in general as the Secretary 
 of the Navy may deem to be derivable from the 
 statutes. (25 Op. Atty. Gen., 122; affirmed 25 
 Op. Atty. Gen., 294.) 
 
 "The post of Paymaster-General is an office 
 known immemorially in the military service, 
 with as definite, if not as technical, status as 
 regards rank, grade, and title as any office of the 
 line. 'Paymaster-General of the forces,' is a 
 historical phrase, applied either to land or sea 
 forces, not restricted to a particular force in the 
 field or at sea, and not to be narrowed to the 
 conception of a mere detail in administration, 
 so as to strip the name of a certain independent 
 rank and dignity as a definite office." (25 Op. 
 Atty. Gen., 294, 295.) 
 
 "It seems certain that military usage uni- 
 versally recognizes that the highest legal rank 
 which an officer attains marks the title accorded 
 to him in practice for all purposes of courtesy 
 and etiquette." (25 Op. Atty. Gen., 294, 295.) 
 
 The head of a department for his own purposes 
 as such has authority to designate bureaus and 
 offices therein and to cause his subordinates to 
 designate them in official communications by 
 names other than those theretofore borne by 
 such offices. There is no statute or rule of law 
 which forbids the employment of certain names 
 in such cases, where the head of the depart- 
 ment considers that new relations acquired by 
 such branches of business under a reorganiza- 
 tion of hisdepartment so requires. Congress has 
 not seen fit to so hamper a coordinate branch of 
 the Government. Its own use of names is not 
 such a prohibition. There is no legal objection 
 to the employment of two names or many names 
 for the same object nor will it be "inconsistent 
 
 369 
 
Sec. 421. 
 
 PL 2. REVISED STATUTES. 
 
 Navy Department. 
 
 with law '■ for the head of the department under 
 section IGl, Revised Statutes, to make use of 
 other names than those used by ("ongress. 
 Names are ordinarily free for the person speak- 
 ing or writing to choose. (24 Op. Atty. Gen., 
 697). 
 
 "The chiefs of the Bureaus of Medicine and 
 Surgery, Sujjplies and Accounts, Engineering, 
 Construction and Repair, and Yards and Docks, 
 while holding these oliices, shall have, respec- 
 tively, the title of Surgeon General of the 
 Navy, Paymaster General of the Navy, En- 
 gineer in Chief of the Navy, Chief Constructor 
 of the Navy, and Chief of Civil Engineers 
 of the Navy. Each such chief of bureau, 
 however, shall be addressed and designated by 
 the title of his rank, in written communi- 
 cations the title of his ofhce to be stated next 
 after his name. ' ' (Art. 152, Navy Regs. , 1920 ; 
 see also Art. R.-1006 (2) Navy Regs. 1913, as 
 amended by C. N. R. 12, Sept. 12, 1918.) 
 
 See section 1471, Revised Statutes, and 
 note thereto. 
 
 Precedence of chiefs of bureaus. — Chiefs 
 of bureaus sliould sign papers, where joint signa- 
 tures are necessary', in order of their seniority in 
 the service, and not in order of the seniority of 
 bureaus. _ "While the question is, perhaps, not 
 of grave importance, the department considers 
 tliat, since it has been raisetl, it must be held 
 that the rule universally governing in military 
 organizations, that papers should be signed in 
 order of rank, must prevail." (File 6417, Feb. 
 18, 1907, re precedence of Chiefs of Bureaus of 
 Construction and Repair, and Steam Engineer- 
 ing-. > 
 
 The precedence of a chief of bureau is deter- 
 mined by the date of the existing commission 
 which confers upon him the rank of rear admiral 
 and is not at all ai'lected by the date he first at- 
 tained the rank of rear admiral under previous 
 appointments as chief of bureau. The effect of 
 reappointment is not to continue the former 
 term, but to create a new one. (File 4649-02, 
 July 17, 1902.) 
 
 Where a naval officer with the rank of rear ad- 
 miral is commissioned as chief of bureau, his 
 precedence is determined by the date of his 
 commission as rear admiral and not by the date 
 of his subsequent commission as chief of bureau. 
 The latter commission did not confer upon him 
 the rank of rear admiral which he already held, 
 as under the statute it is only "when the office 
 of chief of bureau is filled by an officer below the 
 rank of rear admiral,"' that his commission as 
 chief of bureau confers upon him the rank of 
 rear admiral "while holding said office." 
 (File 4649-02, July 17, 1902.) 
 
 Where the Chief of the Bureau of Navigation 
 was commissioned as such ou April 29, 1902, but 
 had previously been co;umi.ssioned as rear 
 admiral in the line in the ordinary course of 
 promotion on February 11, 1901, by virtue of 
 the latter commission he takes precedence of 
 the Chief of the Bureau of Equipment [now 
 abolished], whose commission as such is dated 
 December 18, 1901, notwithstanding that the 
 latter had pre\'iously served as cliief of bureau 
 ■with the rank of rear admiral under commissions 
 dated August 19, 1899, and December 1, 1899, 
 the first being an ad interim commission. If the 
 two officers concerned were requested to pro- 
 
 duce the commissions by which they claim and 
 holdtherankof rearadmiral, one would produce 
 his commis.sion dated February 11, 1901, as rear 
 admiral in the line, and the other would produce 
 his e.\.iBting commission as chief of bureau dated 
 December 18, 1901. Without the commission 
 of December 18, 1901, the latter officer would 
 hold only an effective and living commission as 
 captain in the line, all the force and effect of his 
 former commissions as chief of bureau having 
 been expended. (File 4649-02, July 17, 1902.) 
 
 Section 1467 of the Revised Statutes provides 
 that " line officers shall take rank in each grade 
 according to the dates of their commissions." 
 Whether this section of the statute applies to a 
 case where one line officer holds a commission 
 as rear admiral I y virtue of promotion in the 
 ordinary course, and another line officer has the 
 rank of rear admiral by virtue of his position as 
 cliief of bureau, may not be entirely clear. 
 Nevertheless it states the rule of priority which 
 must, by m-litary usage and apart from statute 
 law, ) e applied to officers having rank in the 
 same grade in the Navy. (File 4649-02, July 
 17, 1902.) 
 
 The personnel act of March 3, 1899, changed 
 the rank of chiefs of bureaus from commodore 
 to rear admiral. Accordingly, commissions 
 were issued to those holding the offices of chiefs 
 of bureaus at the time of the passiige of the per- 
 sonnel act for the unexpired portions of the 
 terms for which they had been appointed, 
 "with the rank of reai'-admiral." These com- 
 missions "were not of such character as to 
 amount to new appointments or reappoint- 
 ments," as the chiefs of bureaus were already 
 appointed to their positions for a period of four 
 years, and the new rank which they enjoyed 
 came not by virtue of any new appointment or 
 commission, Lut was annexed to their office by 
 statute law. It may well be dou")ted whether 
 the new commissions were not entirely super- 
 fluous. Held, that these commissions for the 
 unexpired portions of the terms of office to 
 which chiefs of l)ureaus had been respectively 
 previously appointed did not affect their rela- 
 tive rank and precedence. (File 4649-02, July 
 17, 1902.) 
 
 Assuming, without deciding, that General 
 Order 544, constituting the General Board, des- 
 ignating the Chief of the Bureau of Navigation 
 as the second member thereof, and providing 
 that "in the a' sence of the Admiral of the Navy 
 the chief of the Bureau of Navigation will pre- 
 side at meetings of the Board and exercise the 
 functions of President of the Board," does not 
 affect the order of precedence established by 
 law, nevertheless held that the Chief of the Bu- 
 reau of Navigation takes precedence, l)y virtue 
 of his commission as a rear admiral in the line, 
 ahead of the chief of another l)ureau whose rank 
 in the line is captain and whose commission as 
 chief of 1 >ureau is later in date than the commis- 
 sion of the Chief of the Bureau of Navigation as 
 rear admiral in the line. (File 4649-02, July 17, 
 1902, afiu-ming decision of the Admiral of the 
 Navy as to seating of members of the General 
 Board.) 
 
 In the absence of the Secretary of the Navy, 
 the Assistant Secretary of the Navy, and the 
 Chief of Naval Operations, the duties of the 
 Secretary of the Navy, by airection of the Presi- 
 
 370 
 
Navy Department. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 421. 
 
 dent, are to be performed l)y the following des- 
 ignated chiefs of lureaus, in the order named: 
 The Chief of the Bureau of Navigation; in his 
 absence, the ( hief of the Bureau of Ordnance; 
 and in the absence of those two, the Chief of the 
 Bureau of Engineering. (File 1159-765, Bu. 
 Nav.; Navy Reg., 1920, art. 392, as amended; 
 see also file 22724^0, Apr. 24, J 919, and see 
 note to sec. 415, R. S., under "Secretary of 
 Navy.") 
 
 A Paymaster General in the Navy having the 
 permanent rank, title, and emoluments of a 
 chief of 1 ureau 1 y virtue of the act of June 24, 
 1910 (36 Stat., 607— now repealed), although his 
 term of oUice as i. ureau chief has expired, does 
 not, while serving as member of a general court- 
 martial, take precedence of line officers whose 
 commissions as rear admiral are of a later date 
 than his, 1 ut whose length of service in the 
 Navy exceeds his total length of actual and con- 
 structive service. Precedence in such case is 
 determined by length of service, under sections 
 1485, 1486, Revised Statutes, and not by date of 
 commission. (File 28025-385:5, Oct. 30, 1915, 
 overruled by file 22724-40, Apr. 24, 1919, con- 
 struing act of Aug. 29, 1916 (39 Stat., 578), 
 under which it is held that all officers, line 
 and staff, take precedence by date of com- 
 mission. Compare 32 Op. Atty. Gen., 476, 
 file 11130-63:8, noted under sec. 1485, R. S.) 
 
 V. Pay of Chiefs op Bureaus and 
 
 Assistants. 
 
 By act of July 1, 1918 (40 Stat., 717), chiefs 
 of bureaus in the Navy Department, including 
 the Judge Advocate General, shall receive the 
 same pay and allowances as chiefs of bureaus 
 and the Judge Advocate General in the War 
 Department. Prior to this enactment the pay 
 of these officers was governed by the statutes 
 and decisions noted below: 
 
 Entitled only to shore-duty pay. — The 
 10 per cent additional pay provided by the act 
 of May 13, 1908, for officers of the Navy \ hile 
 serving on sea duty and on shore duty beyond 
 the continental limits of the United States is 
 not a part of the ' ' pay of the grade " and should 
 not be included in computing the "highest pay 
 of the grade to a hich they belong" of chiefs of 
 bureaus in the Navy Department and the as- 
 sistants thereto under said act. (14Comp. Dec, 
 929,88 S. and A. Memo., 756; aflirmed Comp. 
 Dec, Aug._ 7, 1908, 90 S. and A. Menio., 817.) 
 
 It is a primary rule in the construction of stat- 
 utes that the intention of the legislature shall 
 be followed when the intention is shown. Re- 
 ports of committee show that the purpose of the 
 Navy Pay Act of May 13, 1908, was to place 
 chiefs of bureaus in the Navy Department on 
 the same basis as officers holding like positions 
 in the Army. If the chief of a bureau in the 
 N avy Department of the grade of rear admiral 
 of the lower nine be allowed .$G,GOO per annum — 
 the pay of his grade increased by 10 per cent for 
 service at sea — he would not be paid on the same 
 basis as ofiicers holding like positions in the 
 Army, but $600 per annum more. (90 S. and A. 
 Memo., 817.) _ 
 
 A rear admiral of the second nine when chief 
 of bureau is entitled to the pay of a rear admiral 
 of the eecond nine and not to the pay provided 
 
 for a rear admiral of the first nine. The Navy 
 Pay Act of May 13, 1908, divides rear admirals 
 into two grades, at least as to pay. In this pro- 
 vision for pay the pay of rear admiral of the first 
 nine is as distinct from that of a rear admiral of 
 the second nine as is the pay for captain or any 
 other gi-ade. (98 S. and A. Memo., 1034; see 
 also Terry v. U. S., 39 Ct. CIs., 353; Gibson v. 
 U. S.,194U. S., 182.) 
 
 The pay of chiefs of bureaus in the Navy De- 
 partment is the grade or shore-duty pay of a 
 rear admiral of the lower nine, $6,000 per an- 
 num, without the increase for service on sea 
 duty, and is not affected by the fact that the 
 commandant of the navy yard at Mare Island 
 and the Superintendent of the Naval Academy, 
 although serving on shore, are allowed sea-duty 
 pay by joint resolution of March 3, 1863 (12 
 Stat., 825), and act of September 28, 1850 (9 
 Stat., 515). (18 Comp. Dec, 15.) 
 
 Assistant chiefs of bureaus in the Navy De- 
 partment are not entitled to the 10 per cent ad- 
 ditional of their salaries allowed for sea duty, or 
 shore duty beyond seas, asapartof the "highest 
 pay of their grade." (90S. and A. Memo., 826.) 
 
 Under the provision in the act of June 8, 1880 
 (21 Stat., 164), as amended by the act of June 5, 
 1896 (29 Stat., 251), providing that the Judge 
 Advocate General should receive the "highest 
 pay of a captain in the Navy, " an officer of the 
 Navy serving as Judge Advocate General is en- 
 titled to the sea pay of a captain, but he is not 
 entitled to the additional laay provided by law 
 for officers of the Navy serving in insular posses- 
 sions. "The evident purpose of said act of 
 June 15, 1896, was to give claimant the sea pay 
 of a captain instead of shore-duty pay. It con- 
 tains no phrase looking to the future. It pro- 
 vides the highest pay of a captain, but not the 
 pay which a captain in the Navy mightthere- 
 after have; no words of anticipation are in this 
 act * * * By the acts of June 8, 1880, and 
 June 5, 1896, the pay of the Judge Advocate 
 General was fixed at $4,500 a year as distinctly 
 as if they had specifically named said amount. ' 
 (11 Comp. Dec, 11; compare Schuetze'j;. U. S., 
 24 Ct. CIs., 299; but see Plummer v. U. S., 
 224 U. S., 137, holding that the act of May 4, 
 1898 (30 Stat., 380), providing that acting assist- 
 ant surgeons in the Navy shall have the "com- 
 pensation of assistant surgeons, " did not, as 
 held by the Comptroller of the Treasury, limit 
 the pay of acting assistant surgeons to the amount 
 of pay received by assistant surgeons on May 4, 
 1898, but entitled them to increases in pay 
 thereafter allowed by law to assistant surgeons. 
 The pay of the Judge Advocate General under 
 the act of May 13, 1908, was not the subject of 
 decision, but in practice he was allowed $5,000 
 per annum, being the highest shore-duty pay of 
 a captain. See in this connection House Re- 
 ports, volume 1, No. 285, and Senate Reports, 
 volume 2, No. 472, Fifty-fourth Congress, first 
 session, 1895-96, which explain that the purpose 
 of the act of June 5, 1896, was to allow the Judge 
 Advocate General, when an officer of the Navy, 
 the "sea pay " of a captain, which had been de- 
 nied under the previous laws by the Court of 
 Claims in Lemiy v. U. S. (28 Ct. CIs., 468); see 
 also H. Rpts., vol. 1, 52d Cong., 2d sess., 1892- 
 93, No. 2191; and S. Rpts., vol. 1, 52d Cong., 
 2d sess., 1892-93, No. 1188). 
 
 371 
 
Sec. 421. 
 
 PL 2. REVISED STATUTES. 
 
 Navy Department. 
 
 Prior to the naval poi-sonnel act of March 3, 
 1899 (30 Stat., 1004), the pay of chiefs of bu- 
 reaus of the Navy Department was provided for 
 by section 15G5 of tJie Revised Statutes, as fol- 
 lows: "Thepay of chiefs of bureaus in the Navy 
 Department shall be the highest pay of the 
 f^rade to which they belong, but not below 
 tliat of commodore. " The said personnel act 
 provided for their pay as follows: " That 
 when the office of chief of bureau is filled 
 by an officer below the rank of n'ar-admiral, 
 said officer shall, while holding said office, have 
 the rank of rear-admiral and receive the same 
 j)ay and allowances as are now allowed a briga- 
 dier-genei-al in the Army." The law now cov- 
 ering the pay of chiefs of bureaus is the follow- 
 ing provision of the act of May 13, 1908: "That 
 tlie pay and allowances of chiefs of bureaus in 
 the Navy Department shall be the highest pay 
 of the grade to which they belong, and not below 
 that of rear-admiral of the lower nine. " By 
 section 1375 of the Revised Statutes the officer 
 detailed as assistant to the Bureau of Medicine 
 and Surgery is entitled to the "highest shore 
 pay of nis" gmde." The other assistants to 
 chiefs of bureaus are each entitled to the "high- 
 est pay of his grade "by the following acts in the 
 different cases: March 3, 1893 (27 Stat., 717); 
 May 4, 1898 (30 Stat., 373); March 3, 1899 (30 
 Stat., 1038), and March 3, 1905 (33 Stat., 1111). 
 Section 1556 of the Revised Statutes, the pay 
 statute for naval officers in effect before the 
 Navy personnel act, provided three distinct 
 rates of pay for each grade — one for sea duty, an- 
 other for shore or other duty, and another for an 
 officer on leave or waiting orders, and each of 
 these rates was graduated by length of service. 
 The act of May 13, 1908, fixes one annual pay 
 only for each grade, with an increase of such pay, 
 and equally permanent, for each five years' 
 service. "When the longevity pay is earned by 
 service it becomes a part of the permanent pay 
 of the grade. But the 10 per cent additional 
 allowed by the act of May 13, 1908, for sea duty 
 and for shore duty abroad is pay for particular 
 duty and to be given only "while so serving. " 
 It is true that old Navy sea pay was only earned 
 while on sea duty, but it was an established pay 
 of the grade, just as the other two rates were. 
 There is no longevity pay attached to the grade 
 of rear admiral of the nine lower numbers, so that 
 there appears to be only one rate of pay pro- 
 vided for that grade notwithstanding the use of 
 the words "highest pay. " It is difficult to give 
 the word "highest" a meaning in this case, and 
 its use in the above provision seems to create an 
 ambiguity as to the meaning of the law. Rear 
 admirals of the nine lower numbers receive the 
 same advance in pay by the act of May 13, 1908, 
 as brigadier-generals of the Army receive under 
 the Army act of May 11, 1908, viz, $500 per 
 annum ; so that the present pay of each is $6,000 
 per annum, and I am of opinion that chiefs of 
 bureaus in the Navy Department are entitled 
 to the same unle.ss thev are of higher grade. (14 
 Comp. Cec, 929.) 
 
 Formerly there were thi-ee separate and dis- 
 tinct rates of pay of each grade, sea pay, leave 
 or waiting-orders pay, and shore-duty pay. 
 Under the act of I^Iay 13, 1908, in lieii of the 
 three there is only the one rate t f pay for each 
 gi'ade, with' increases for certain purposes, the 
 
 pay of the grade of rear-admiral of the lower 
 nine being .$6,000 per annum, with a 10 per 
 cent increase thereon for serving on sea duty 
 or on shore duty beyond the continental Limits 
 of the United States. No express mention ia 
 made in the act of any increase for shore duty 
 in the United States, and therefore the grade 
 pay alone remains the pay for that duty, or 
 "snore-duty pay," within the commonly ac- 
 cepted meaning of the term. While no mean- 
 ing can be attached to the word "highest, " yet 
 the intent of Congress should not be defeated 
 for the purpose of conferring upon it a meaning. 
 (18 Comp. Dec, 15.) 
 
 The term "highest pay of his grade," in the 
 cases of assistant chiefs of bureaus, is given 
 effect by including full longevity pay, as it is a 
 part of the pay of the grade; but the additional 
 pay provided by the act of May 13, 1908, for a 
 particular duty, such as sea duty and shore 
 duty a])road, is not a part of the yearly pay of 
 the grade. Under the act of May 13, 1908, as 
 interpreted by the Comptroller, assistant chiefs 
 of bureaus receive an increase of pay of at least 
 $500 per annum over their former pay, which 
 is the increase generally provided by that act. 
 (90 S. and A. Memo., 826. Note.— Pay Direc- 
 tor C. J. Peoples, while serving as assistant to 
 the Bureau of Supplies and Accounts, was paid 
 the highest pay of the grade of pay director, 
 viz, that of rear admiral of the upper half.) 
 
 [Note.— The act of May 13, 1908 (35 Stat., 
 129), and act of March 3, 1909 (35 Stat., 754), 
 each provided that "the estimates for the sup- 
 port of the Navy shall hereafter show, under 
 the head of Pay of the Na^^, the sums allowed 
 for pay of officers belonging to the line, to the 
 several departments of the staff, and to the 
 retired list; the estimates to show under each 
 head the amount allowed for pay proper, for 
 increases due to longevity and foreign service, 
 and for pay at sea rates la officers employed on 
 shore * * *."] 
 
 Pay not reduced by appointment as 
 chief of bureau. — A rear admiral of the senior 
 nine, sei^vingas chief of the Bureau of Ordnance, 
 is entitled to the pay of a rear admiral of the 
 senior nine, and is not restricted to " the liighest 
 shore-duty pay and allowances of the rear 
 admiral of the lower nine," notwithstanding 
 the provision to that effect in the act of June 
 24, 1910 [since repealed]. (31 Op. Atty. 
 Gen., 557, file 22724-16:3, approving 10 Op. 
 Atty. Gen., 377.) 
 
 VI. Retirement of Chiefs of Bureaus. 
 
 Rank on retirement same as -while 
 serving. — Section 1254, Re\'ised Statutes, relat- 
 ing to the Army, and made applicable to the 
 Marine Corps by section 1622, Revised Statutes, 
 provides that ' ' officers hereafter retired from 
 active service shall be retired upon the actual 
 rank held by them at the date of retirement." 
 Held that, under these statutes, a captain in the 
 Marine Clorps, holding the office of Judge 
 Advocate General of the Navy, with the rank 
 of colonel while so serving, is entitled to be 
 retired with the latter rank. While he held 
 this office he held actual rank as a colonel of the 
 Marine Corps, and not assimilated rank; liis 
 rank was a fact, not a courtesv. (Remey v. 
 U. S., 33 Ct. Cls., 218.) 
 
 372 
 
Navy Department. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 421. 
 
 Sectiou 1457, Revised Statutes, pro^dde8 that 
 "officers retired from active service shall be 
 placed on the retii'ed list of officers of the grades 
 to which they belonged, respectively, at the 
 time of their retirement, and continue to be 
 borne on the Navy register. They shall be 
 entitled to wear the uniform of their respective 
 grades * * *." The effect of this statute 
 upon the retirement of naval officers while 
 8er\T.ng as chiefs of biu*eaus has never been 
 judicially decided. The decisions of the 
 executive officers on the subject have been 
 conflicting, the cases being noted below: 
 
 The decision of the Court of Claims in 
 Remey's ciise (above noted) was extended to 
 the case of Capt. Samuel C. Lemly, U. S. Navy, 
 who was retired under section 1457, Reused 
 Statutes, from the office of Judge Advocate 
 General, with the rank of captain, which he held 
 wliile so ser\T.ng on the active list, although his 
 rank in the line was lieutenant commander. 
 (See file 21-2, Mar. 12, 1906.) 
 
 The act authorizing the appointment of a 
 Judge Advocate General confers actual and not 
 assimilated rank upon the officer so appointed, 
 and an officer of the Navy retired wliile holding 
 the rank confeiTed by such appointment is 
 retired on said rank. (8 Comp. Dec, 895.) 
 
 The Attorney General (25 Op. Atty. Gen., 
 294) held that the word "grade " in section 1457 
 "appears to mean ranh in the line or by relation 
 to the line — using rank and gi'ade interchange- 
 ably, as those words sometimes are used, and 
 not as indicating an officer's number in a 
 particular grade. Section 1471 speaks of the 
 headsliip of a bureau as a 'position,' section 
 1472 as an office, section 1473 again as a position, 
 and the Navy Regulations, incorporating the 
 statutes and adding to them administrative 
 details, use both terms * * *. I think, 
 however, that grade may include such staff 
 offices and may mean in an untechnical sense 
 and by a certain equity the highest post to the 
 rank and title of which an officer has attained 
 upon liis retirement, and that section 1457 
 fairly includes the office or position of Pay- 
 master-General." (See note to section 1362, 
 Revised Statutes, for other citations in which 
 "grade " and " rank " have been used synony- 
 mously.) 
 
 In the opinion noted in the preceding para- 
 graph, the Attorney General further stated: 
 "As I understand the matter, the situation is 
 precisely the same in the line. An officer 
 serving as chief of a bureau, who is a rear- 
 admiral in fact, or is in the next lower grade. 
 \-iz. captain, if he were retired during Lis in- 
 cumbency of the bureau headship would be 
 retired with the rank, pay and title of rear- 
 admiral." 
 
 The above opinion of the Attorney General 
 was followed in an opinion of the Judge Advo- 
 cate General (file 21-2, Mai-. 12, 1906), holding 
 that "a captain in the Navy reaching the 
 retiring age while ser\dng as chief of bureau 
 ^\ith the rank of rear-admiral, is retired with 
 the latter rank." It was stated by the Judge 
 Advocate General that the Attorney General's 
 opinion was followed in the case of PaATiiaster 
 General Kenny, who was "retired as a rear- 
 admiral while a pay director in a staff cori)s 
 of the Navy having no rank corresponding to 
 
 that of rear-admiral; also in the case of the 
 present Paymaster-General [Harris], retired as 
 rear-admiral, liis rauk in his corps being that of 
 pay director." The Judge Advocate General 
 also supported his opinion by the decision of 
 the Coint of Claims in the Remey case, above 
 noted, and the fact that a marine officer ser\dng 
 as Judge Advocate General was retired with 
 the rank of colonel, and a naval officer in the 
 same position was retired with the rank of 
 captain, although their lineal ranks were 
 captain in the Marine Corps and lieutenant 
 commander in the Navv', respectively. The 
 Judge Advocate General further supported his 
 opinion by the act of August 5, 1882 (22 Stat., 
 286), providing that "hereafter there shall be no 
 promotion or increase of pay in the retired list 
 of the Navy hut the ranh and pay of officers on 
 the retired list shall be the same that they are luhen 
 such officers shall be retired." 
 
 The Navy Regulations of 1905 and 1909 pro- 
 vided that "officers retired while serving as 
 chiefs of biu-eau or as Judge Advocate General 
 shall retain the rank and titles held by them, 
 respectivelv, while so serving." (Art. 24, Regs. 
 1909; art. 23, Regs. 1905; file 22724--7c?. May 17, 
 1909. There is no similar provision in the Navy 
 Regulations of 1913.) 
 
 The Attorney General's opinion, above noted, 
 (25 Op. Atty. Gen., 294) reversed a former opin- 
 ion of his department (17 Op. Atty. Gen., 154), 
 which was as follows: "Where W., while hold- 
 ing a commission as captain in the Navy, was 
 appointed to the office of chief of the Bureau of 
 Navigation, with the relative rank of commo- 
 dore: Held that, in case of his retirement by 
 reason of a disability incident to the service, or 
 on his own application, during his incumbency 
 of that office, and whilst he is borne on the Navy 
 Register as a captain, he should be placed on the 
 retired list with the rank of captain." Never- 
 theless, in this opinion the Attorney General 
 stated: "The interchangeability of the words 
 rank and grade throughout the statutes leads me 
 to the conclusion that whatever may have been 
 their original differences in meaning, they are 
 now to a gi-eat extent used synonymously," but 
 his conclusion was that the word " rank " in sec- 
 tion 1588, Re\T.sed Statutes, pro\'iding that re- 
 tired officers shall receive 75 per cent of the pay 
 of the "grade or rank which they held, respec- 
 tively, at the time of their retirement," meant 
 "grade," which was the reverse of the conclu- 
 sion reached later (25 Op. Atty. Gen., 294) ; that 
 the word "grade" in section 1457, Re\T.sed Stat- 
 utes, meant "rank." 
 
 The decisions of the Court of Claims and of the 
 Comptroller of the Treasury, the opinion of the 
 Attorney General (25 Op. Atty. Gen., 294), and 
 the Navy Regulations (art. 24, Regs., 1909), all 
 support the view that the chief of a bureau in 
 the Navy Department, retired for physical disa- 
 bility, is entitled to the rank and retired pay of 
 a rear admiral of the lower nine. ('File 22724-7d, 
 May 17, 1909, memo. J. A. G.) 
 
 By act of May 13, 1908, Congress provided that 
 "any officer of the Nav>^ who is now serving or 
 shall hereafter serve as chief of a bureau in the 
 Navy Department, and shall subsequently be 
 retired, shall be retired with the rank, pay. and 
 allowances authorized by law for the retiremen- 
 of such bureau chief." At the time this legist 
 
 373 
 
Sec. 421. 
 
 PL 2. REVISED STATUTES. 
 
 Navy Department. 
 
 lalioii was enacted the law as construed by the 
 Attorney General (Jo Op. Atty. den., 294), by 
 the Navy Department (tile 21-2. Mar. 12, 1906), 
 and by Navy regulations approved by the Presi- 
 defit (art. 23, Regs., 1905), authorized the retire- 
 ment of bureau chiefs \sith the rank held by 
 them while so serving, and the contrary opinion 
 (17 Op. Atty. Gen., 154) had been reversed. 
 [In this connection see "Introduction," ante, 
 VI, D, 'Aids to Interpretation of Ambiguous 
 Statntes."] 
 
 Referring to this act of May 13, 1908, the At- 
 torney General stated : " It is obvious under the 
 language last quoted that an officer actually re- 
 tired from active service while still acting as 
 chief of bureau became entitled * * * to 
 pay during retirement of not less than three- 
 fourths of the pay of a ' rear-admiral of the lower 
 nine.'" (28 Op. Atty. Gen., 531.) 
 
 It is the opinion of the Navy Department 
 that the existing laws entitle a line oflicer of 
 the Navy, on retirement, while serving as 
 Judge Advocate General or chief of bureau, to 
 the rank held by him while so serving, the 
 same as a Marine otiicer retired while serving 
 as Judge Advocate General and a staff officer 
 retired while serving as chief of a bureau or 
 Judge Advocate General in the Navy Depart- 
 ment, and any officer of the Ajmy retired 
 while serving as Judge Advocate General or 
 chief of a bureau in the War Department re- 
 tains on retirement the rank held by him while 
 80 serving. (File 22724-41, May 14, 1919.) 
 
 The former opinions and decisions were re- 
 viewed by the Attorney General, July 3, 1919, 
 and the conclusion reached that " a line officer 
 of the Navy, retired while serving as chief of 
 bureau or Judge Advocate General, should be 
 placed on the retired list wdth the rank attached 
 Dy law to the said position of chief of bureau 
 or Judge Advocate General." (31 Op. Atty. 
 Gen., 505.) 
 
 Rank on retirement not same as while 
 serving.— In 27 Op. Attv. Gen., 376, the Attor- 
 ney General disapproved the opinion expressed 
 in 25 Op. Atty. Gen., 294 (above quoted), and 
 reverted to tliat expressed in 17 Op. Atty. Gen, 
 154 (above quoted), that the word "grade," 
 in section 1457, Revised Statutes, does not 
 mean "rank," but requires that a captain in 
 the Navy, serving as chief of bureau with 
 the rank of rear admiral, be retired with the 
 rank of his grade in the line, namely, with the 
 rank of captain, except as specified in section 
 1473, Revised Statutes, quoted below. [In this 
 opinion the Attorney General did not consider 
 the effect of the act of May 13, 1908, as consti- 
 tuting legislative approval of the existing con- 
 struction of the law under which chiefs of bu- 
 reaus were held entitled to retirement with the 
 rank attached to the office of chief of bureau.] 
 
 In 27 Op. Atty. Gen., 376, the Attorney 
 General stated that the Court of Claims' deci- 
 sion in Remey's case (33 Ct. Cls., 218), that a 
 marine officer serving as Judge Advocate Gen- 
 eral is entitled to retirement with the rank of 
 colonel, which he held by virtue of his office as 
 Judge Advocate General, does not apply to the 
 retirement of an officer of the Navy serving as 
 chief of bureau, for the reason, among others, 
 that section 1254, which applies to the retire- 
 ment of marine officers, uses the word "rank," 
 
 while section 1457, which applies to the retire- 
 ment of officers of the Nav>% uses the word 
 "grade"; and that while a chief of bureau has 
 the rank of rear admiral he does not by virtue 
 of his office belong to the "grade" of rear 
 admiral. 
 
 In 28 Op. Atty. Gen., 529, the Attorney Gen- 
 eral quoted approvingly from his opinion of 
 May 26, 1909 (27 Op. Atty. Gen., 376, 379), that 
 a chief of bureau whose actual grade is below 
 that of rear admiral is not entitled to retire- 
 ment with the rank of rear admiral except 
 in the cases specified by section 1473, Revised 
 Statutes (quoted below). 
 
 The Chief of Naval Operations, by express en- 
 actment, if retii'ed while so serving, shall have 
 the lineal rank and retired pay to which he 
 would be entitled if not so serving. (Act Aug. 
 29, 1916, 39 Stat., 558). 
 
 Rank on retirement of chiefs of "staff" 
 bureaus. — Section 1482, Revised Statutes, pro- 
 vides that "staff officers, who have been or 
 shall be retired for causes incident to the service 
 before arriving at 62 years of age, shall have the 
 same rank on the retired list as pertained to their 
 position on the active list." [The effect of this 
 section upon the retirement of a staff officer 
 serving as cliief of bureau has not been decided. 
 See, however, file 22724-4], May 14, 1919, and 
 31 Op. Atty. Gen., 505, noted above.] 
 
 Section 1473, Re\dsed Statutes, as amended, 
 provides that "officers who have been or who 
 shall be retired from the position of Chiefs of 
 the Bureau of Medicine and Surgery, of Sup- 
 plies and Accounts, of Steam Engineering [now 
 Engineering] or of Construction and Repair, by 
 reason of age or length of ser\4ce, shall have the 
 rank of commodore [now rear admiral]." 
 
 Rank of commodore in certain cases. — 
 In 5 Comp. Dec, 823, it was held by the Comp- 
 troller of the Treasury that under section 1473, 
 Revised Statutes, the officers therein men- 
 tioned would retire, under the conditions spe- 
 cified, wdth the rank of commodore, and not 
 rear admiral; notwithstanding the fact that the 
 grade of commodore on the active List was abol- 
 ished by the Navy personnel act of March 3, 
 1899, and that chiefs of biueau now h^.ve the 
 rank of rear admiral instead of commodore, aa 
 was the case when section 1473 was enacted. 
 (See also, to same effect, file 22724-16:1, Feb. 
 13, 1911, overruled by Attorney General, Mar. 
 15, 1911, file 22724-16:3; and see note to sec. 
 1362 R. S.) [The pay of commodore and rear 
 admiral of the lower nine is the same, and as 
 the Comptroller of the Treasury has Jurisdic- 
 tion only of questions involving payments, 
 and the case before him involved the pay of 
 an officer retired under section 1473, Re^dsed 
 Statutes, the question of rank to which such 
 oflBcer was entitled was not under the juris- 
 diction of the Comptroller to decide. The 
 Comptroller of the Treasury, in a subsequent 
 letter to the Secretary of the Navy, relating to 
 a similar matter, stated: "The decision of 
 * * * referred only to the pay of such re- 
 tired oflScers and not to the rank upon which 
 they should be retired, as that was a question 
 outside of my jinisdiction and in any event did 
 not affect the rate of pay in the particular case 
 considered. * * * In this decision the as- 
 sistant comptroller had in mind the question of 
 
 374 
 
Navy Department. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 421. 
 
 pay, which was the only question before him 
 and the only one over which he had jurisdiction 
 to render a binding decision. * * * The 
 question of the rank upon which such an officer 
 should be retired has therefore no bearing upon 
 the rate of pay which he is to receive when so 
 retired. The question of rank is one peculiarly 
 witliin the pro\ince of your department to deter- 
 mine and a proper one for submission to the 
 Attorney General for his opinion in case of 
 doubt." (File 4784-99, Dec. 8, 1899.)] 
 
 Rank of commodore no-w rear admiral. — 
 In the following opinions the Attorney General 
 has indicated the view that the rank of officers 
 retired under section 1473, Re\ised Statutes, is 
 now rear admiral instead of commodore: 25 
 Op. Atty. Gen., 296; 27 Op. Atty. Gen., 337, 
 344; 27 Op. Attv. Gen., 376; 31 Op. Atty. Gen., 
 505, 518, 519. (See also file 21-2, Mar. 12, 1906.) 
 
 In 27 Op. Atty. Gen., 337, 344, the Attorney 
 General stated that under section 1473 " 'offi- 
 cers who have been or who shall be retired 
 fi'om the position of chiefs of the bureau of 
 * * * Steam Engineering * * * by 
 reason of age or length of service, shall have the 
 relative rank of commodore,' {now the actual 
 rank of rear-admiral * * *)." 
 
 In 27 Op. Atty. Gen., 376, the Attorney Gen- 
 eral stated that Congress has provided that 
 officers retired from the position of Chief of the 
 Bureau of Steam Engineering by reason of age 
 or length of service shall have the rank of rear 
 admiral. 
 
 Had the Chief of the Bureau of Steam Engi- 
 neering been retired on his own application, 
 after 30 years' service, he would have been en- 
 titled, under section 1473, Revised Statutes, to 
 the rank of rear admiral on the retired list. 
 (File 22724-7Z, July 13 and Dec. 9, 1909, letters 
 from Secretary of the NaAJy to House and Sen- 
 ate Committees on Naval Affairs.) 
 
 The Navy Regulations of 1905 and 1909 pro- 
 vided that a chief of bureau retired while so 
 serving was entitled to the rank of rear admiral. 
 (.\rt. 24, Regs., 1909, and art. 23, Regs., 1905. 
 No similar pro\dsion in Regulations of 1913.) 
 
 According to the department's practice, the 
 Paymaster General of the Nav}^, if retired under 
 section 1473, Revised Statutes, is retired with 
 the rank of rear admiral. (See file 22724-18, 
 Nov. 28, 1911; Bu. Nav. file 2425-61, 2108.) 
 
 The Surgeon General of the Navy, Presley 
 M. Rixey, was retired February 4, 1910, on his 
 own application after 30 years' sei*vice, with 
 the rank of rear admii-al. (See Navy Register, 
 ■Jan. 1, 1915, p. 168.) 
 
 The act of June 24, 1910 (36 Stat., 607) [re- 
 pealed by the act of August 22, 1912 (37 Stat., 
 328)], provided that chiefs of biu-eau becoming 
 eligible for retirement after 30 years' service 
 "shall have, while on the active list, the rank, 
 title and emoluments of a chief of bureau, in 
 the same manner as is already provided by statute 
 law for such officers iipon retirement hy reason of 
 aye or length of service, and such officers after 
 tliirty years' ser\dce shall be entitled to and 
 shall receive new commissions in accordance 
 with the rank and title hereby conferred." 
 The piupose of the act of 1910 "quite clearly 
 was to extend to chiefs of bureau becoming 
 eligible for retirement the same privileges as 
 under the prior law they could claim upon 
 
 actual retirement." (28 Op. Atty. Gen., 531.) 
 Under this act of 1910, the officers affected 
 thereby became entitled to permanent com- 
 missions with the rank of rear admiral (28 Op. 
 Atty. Gen., 429); and such officers were com- 
 missioned accordingly with the rank of rear 
 admiral, including Rear Admiral R. F. Niohol- 
 son. Chief of the Bureau of Na^dgation. 
 
 Section 1473, Revised Statutes, does 
 not restrict retirement with same rank as 
 while serving to cases specified. — Section 
 1473, Revised Statutes, in providing that chiefs 
 of certain bureaus shall be retired with the 
 rank of commodore, was not intended to dis- 
 criminate against the chiefs of the other bu- 
 reaus, but the inference is that Congress in- 
 tended thereby to confer upon chiefs of the 
 so-called staff bureaus a rank on retirement 
 wMch it thought already appertained to the 
 chiefs of the so-called line bureaus. (31 Op. 
 Atty. Gen., 505, 519, holding that line officers 
 serving as chiefs of bureaus are entitled to 
 retire with the rank of rear admiral.) 
 
 Section 1473 expressly provides that the chiefs 
 of ioMX biu-eaus shall, on retirement for age or 
 length of service, retain the rank which they 
 held while so serving. "Expressio unius ex- 
 clusio alterius" — the expression of one thing 
 excludes another. Accordingly, held that a 
 captain in the Navy, serving as Chief of the 
 Bureau of Na\dgation, which is not one of the 
 bureaus mentioned in section 1473, should be 
 retired with the rank of captain. (17 Op. Atty. 
 Gen., 154; overruled by 31 Op. Atty. Gen., 505.) 
 
 Section 1473 would have been entirely un- 
 necessary if in the view of Congress or of the 
 revisers of the statutes the effect of section 1457, 
 in the event of the retirement of a chief of bu- 
 reau, was to place him on the retired list of 
 officers of the grade temporarily held by him 
 during his incumbency of the office of chief of 
 bm-eau. It was because of the expression of 
 such intention only in the two cases mentioned, 
 viz, first, on rethement by reason of age, and 
 second, on retirement by length of service, 
 "thus inferentially excluding all other cases," 
 that Attorney General McVey reached the con- 
 clusion expressed by him in the Whiting case 
 that chiefs of bureaus not coming within the 
 provisions of section 1473 are entitled to retire- 
 ment only with the rank of theii" regular grade 
 in the Navy — an opinion in which I am con- 
 strained to conciu". (27 Op. Atty. Gen., 376, 
 affirming 17 Op. Atty. Gen., 155, and disap- 
 proving"25 Op. Atty. Gen., 294; but see 31 Op. 
 Atty. Gen., 505, noted above.) 
 
 "\\Tien, therefore, a line officer of the Navy, 
 holding the position of Engineer in Chief, is 
 retired from active ser\'ice by reason of physical 
 disability and not because of age or length of 
 service, he is to be placed on the retired list of 
 officers of the grade to which he belonged at 
 the time of retirement — in this case the grade of 
 captain — and not on the retired Ust of Engineers 
 in Chief, for such office is not a grade. (27 Op. 
 Atty. Gen., 376.) [Following this opinion, a 
 special act of Congress was enacted May 6, 1910 
 (36 Stat., 352), providing for the appointment 
 of John K. Barton as Engineer in Chief on the 
 retired list, with the rank of rear admiral, from 
 December 22, 1908, the date of his original 
 retirement, under the Attorney General's 
 
 375 
 
Sec. 421. 
 
 PL 2. REVISED STATUTES. 
 
 Navy Department. 
 
 opinion, with tho rank of captain. Thereafter 
 tnia opinion was reversed by the Attorney Gen- 
 eral, (see 31 Op. Atty. Gen., 505, noted 
 above.)] 
 
 Rank on retirement of former bureau 
 chief who has returned to general serv- 
 ice.— Prior to the act of May 13, 1908, tho 
 authorities clearly supported the following pro- 
 position: A chief of bureau appointed from the 
 grade of captain, whose time of bureauship ex- 
 pires, then reverts to the grade from which he 
 was appointed, and, if afterwards retired, re- 
 tires in tlie lower grade to which he so reverts. 
 (File 21-2, Mar. 12, 1906.) 
 
 However, by the act of May 13, 1908 (35 Stat., 
 128) it was provided that "any officer of the 
 Naxy who is now serA-ing or shall hereafter sen'e 
 as chief of a bureau in the Navy Department, 
 and shall siihseqaently be retired, shall ])0 retired 
 with the rank, pay, and allowances autliorized 
 by law for the retirement of such bureau chief." 
 
 In an informal opinion of the Attorney Gen- 
 eral it w;\8 held that the above legislation of 
 May 13, 1908, refers only "to the case of retire- 
 ment during service as chief of bureau," and 
 does not extend to the retirement of one who 
 has left the office of chief of biueau and retimied 
 to general duty in the service at large. (28 Op. 
 Atty. Gen., 531.) This informal opinion was 
 not rendered in any specific case, and had 
 not the force and effect of an official opinion. 
 (See cases noted under sec. 356, K. S., "V. 
 Weight of Opinions. ' ') However the informal 
 opinion of the Attorney General was followed 
 by the Court of Claims in the case of Stokes v. 
 United States. (54 Ct. Cls., 70.) 
 
 The above provision of the act of May 13, 
 1908, was copied from the following clause in the 
 Army act of February 2, 1901, section 26 (31 
 Stat. 755): "And any officer now holding office 
 in any corps or department who shall hereafter 
 serve as chief of a staff corps or department and 
 shall subsequently be retired, shall be retired 
 with the rank, pay, and allowances authorized 
 by law for the retirement of such corps or depart- 
 ment chief." (See file 22724-7to, Nov. 22, 
 1909). By act of June 4, 1920 (41 Stat., 762), 
 relating to the Army, it was provided that 
 "any officer who shall have served four years 
 as chief of a branch, and who may subsequently 
 be retii-ed, shall be retired with the rank, pay 
 and allowances authorized by law for the grade 
 held by him as such chief." 
 
 No actual case has been judicially decided in 
 the Army involving the interpretation of this 
 legislation. For memoranda relating to the in- 
 formal opinion of the Attorney General aliove 
 cited, and presenting certain considerations 
 which were not before the Attorney General at 
 that time, see file 27231-66:3, Office of the 
 Judge Advocate General of the Na\-y, and file 
 88-400, Office of the Judge Advocate General 
 of the Army. 
 
 Orders to chief of bureau to appear 
 before retiring board. — WTiile immaterial, 
 it seems to l)e an in-cgularity to order a cliief of 
 biu-eau before a retiring board by his title as 
 chief of bureau — e. g., as "engineer in chief" — 
 instead of the title of his office in the Une, viz, 
 "captain," for it ia by virtue of liis office of 
 captain and not of chief of bureau that he is 
 
 entitled or subject to retirement. (27 Op. Atty. 
 Gen., 337, 343. Compare cases noted above.) 
 
 Titles of chiefs of bureau after retire- 
 ment. -1 have no doubt whatever, in view of 
 the authorities which I have cited and the 
 various conj^iderations affecting the subject 
 wliich I have indicated, that when retirement 
 occurs during service as head of one of the staff 
 bureau.'^, tlie titles for the cliiefs of which are 
 provided for in section 1471, the retired officer 
 IS entitled under the law to be borne upon the 
 Na\y Register as a retired officer under that 
 title permanently. (25 Op. Atty. Gen., 294; 
 alfirming 25 Op. Atty. Gen., 122; compare 27 
 Op. Atty. Gen., 376.) 
 
 Effect of retirement upon status of 
 chief of bureau. — Chiefs of bureaus are el- 
 igible, after retirement, to serve out unexpired 
 terms, particularly in view of the statute 
 authorizing the employment of retired officers 
 on active duty. (File 21, Nov. 2, 1902.) 
 
 An officer of the Navy on the active Utit is 
 eligible for appointment as chief of bureau 
 although he A\all be retired about a year later; 
 and when the date of his retirement arrives he 
 may be ordered to continue in the performance 
 of his duties as cMef of biu^eau during the unex- 
 pired portion of his term. (File 21-1, Mar. 7, 
 1906.) 
 
 At least one Engineer in Chief and two Pay- 
 masters General, retired while chiefs of bureaus, 
 have been ordered to active duty upon retire- 
 ment and have continued serving as chiefs of 
 bureau until the expiration of their respective 
 terms. The same is true of a former Judge 
 Advocate General. Such action is therefore in 
 accordance with precedents. (File 21-1, Mar. 
 7, 1906.) 
 
 The retirement of an officer of the Navy wliile 
 holding the office of Judge Advocate General 
 of the Navy did not vacate that office, and the 
 incumbent continued to be entitled to the pay 
 attached thereto, if continued on active duty 
 as Judge Advocate General under the order of 
 the Secretary of the Navy after his retirement. 
 (8 Comp. Dec, 895.) 
 
 The Paymaster General of the Navy having 
 been retired under section 1444, Revised Stat- 
 utes [age], was ordered by the Secretary of the 
 Navy to continue his duties as Paymaster Gen- 
 eral and Chief of the Bureau of Supplies and 
 Accounts until further orders. Held, that he 
 is entitled to the pay of that office until the 
 expiration of his term of appointment, unless 
 sooner relieved from active duty as chief of 
 said biu"eau. (10 Comp. Dec, 56.) 
 
 It was quit« properly held by the Comptroller 
 in 8 Comp. Dec, 895, that a captain in the 
 Navy, serving as Judge Advocate General, who 
 after his retirement as captain was by the Sec- 
 retary of the Navy directed to continue his du- 
 ties as Judge Advocate General pursuant to 
 the statute authorizing the employment of re- 
 tired officers on active duty, was entitled to 
 hold the rank and enjoy the pay adhering in 
 such office so long as he continued to fill the 
 office and perform the duties of Judge Advocate 
 General, even though he had been retired as an 
 officer of the line. (27 Op. Atty. Gen., 376.) 
 
 The retirement of an officer while Chief of the 
 Bureau of Steam Engineering "vacated the 
 
 376 
 
Navy Department. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 422. 
 
 office of Engineer in Chief of the Navy, and left 
 his legal status that of an officer on the retired 
 list of the Navj^ holding the rank of captain." 
 (27 Op. Atty. Gen., 337, 344.) 
 
 An officer retired for physical disabiUty while 
 serving as chief of the Biureau of Stearn Engi- 
 neering became incapable of performing his 
 active shore duties as Engineer in Chief unless 
 the Secretary of the Navy, under the statute 
 authorizing employment of retired officers on 
 active duty, ordered him to continue Ms duties 
 as chief of bureau, wliich was not done. (27 
 Op. Atty. Gen., 376, 382.) 
 
 Pay after retirement of oflS.cers serving 
 as chiefs of bureaus. — See cases noted above 
 under "Rank of chiefs of bureaus on retire- 
 ment," "Rank on retirement of former biireau 
 chief who has returned to general service," and 
 "Effect of retirement upon status of chief of 
 bureau." 
 
 A line officer of the grade of captain, retired 
 while holding the office of Chief of the Bureau of 
 Navigation, is entitled to the retired pay of an 
 officer of the rank of captain. (17 Op. Atty. 
 Gen., 154.) 
 
 Chiefs of bureaus coming within the terms of 
 section 1473 are entitled to the retired pay of 
 commodore if retired while holding such posi- 
 tions, but chiefs of bureaus who do not fall with- 
 in said section are entitled on retirement only 
 to the retired pav of their commissioned grade. 
 (5Comp. Dec, 823.) 
 
 An officer of the Marine Corps retired while 
 serving as Judge Advocate General of the Na\'y 
 is entitled to the retired pay of colonel. (Re- 
 mey i;. U. S., 33 Ct. Cls., 218.) 
 
 An officer of the Navy ser\'ing as Judge Advo- 
 cate General is retired with the rank of captain 
 and is entitled to be paid accordingly. If con- 
 tinued on active duty as Judge Advocate Gen- 
 eral under the order of the Secretary of the 
 Navy after retirement, he is entitled to receive 
 the active-duty pay of a captain. (8 Comp. 
 Dec, 895. Capt. Lemly,.in whose case this 
 decision was rendered, performed other active 
 duty under orders of the Secretary of the Navy, 
 after expiration of his ser\-ice as Judge Advocate 
 General, and received the active-duty pay of a 
 captain for such service; and when not on any 
 active duty he received the retired pay of a 
 captain; see file 22724-7f/, May 17, 1909.) 
 
 Where a line officer of the grade of captain was 
 retired from the office of chief of bureau and was 
 continued on active duty but not as chief of 
 bureau, he was entitled by statute to the active- 
 duty pay of the grade from which he was re- 
 tired, which, in his case, was that of captain. 
 (15 Comp. Dec, 860.) 
 
 VII. Assistants to Chiefs of Bureaus. 
 
 Status and powers of assistant. — Without 
 making a question that the assignment of com- 
 missioned officers of the Navy to act as assist- 
 ants to chiefs of bureaus may be within the 
 general power of the Secretary of the Navy, 
 
 officers so detailed are not legally " the assistant 
 or deputy of such chief, ' ' unless their appoint- 
 ment is specifically authorized by statute. (19 
 Op. Atty. Gen., 503; affirmed 28 Op. Atty. Gen., 
 95. See also note to sec. 178, R. S.) 
 
 The office of Surgeon General (Army) is one 
 of the distinct or separate bureaus of the admin- 
 istrative service of the War Department. It 
 has been found in regard to many of these 
 bureaus, and even to the heads of departments, 
 that it is impossible for a single individual to 
 perform in person all the duties imposed on 
 him by his office. It was to relieve the over- 
 burdened principal of some part of those duties 
 that the office of assistant was created. If no 
 \drtue attached to the acts of the assistant until 
 approved by the Surgeon General, any inferior 
 clerk would have answered the purpose as well 
 It is not intended to deny that the Assistant 
 Surgeon General was subordinate to the chief 
 of his bureau, could be ordered to do or not to 
 do particular things, and when an order made 
 by him was disapproved it might be revoked 
 by that officer. But imtil so revoked or disap- 
 proved it was valid, and parties required to act 
 under it had a right to rely on it. (Parish v. 
 U. S., 100 U. S., 504; McCollum v. U. S., 17 Ct. 
 Cls., 101.) 
 
 In some of the executive departments the 
 statutes provide for assistants to the heads 
 thereof, and also assistants and deputies to the 
 heads of some of the bureaus. The duties of 
 these assistants are generally not specifically 
 defined by law, but are left to the direction and 
 regulation of superior officers. Such assistants 
 are supposed to have the confidence of those 
 immediately above them, and to be officially 
 engaged in carrying out the will of their prin- 
 cipals in the details of the work of the depart- 
 ment or bureau in which they are employed. 
 Wlien their acts, decisions, or directions are 
 reduced to wiiting, signed by them in their 
 official capacity, filed, or recorded among the 
 archives of the aepartment, and do not appear 
 to have been revoked, annulled, or modified by 
 the head of the department or bureau, they 
 must be held in the absence of fraud, mistake, 
 or irregularity to have been done within the 
 scope of the authority of the assistant and to be 
 as binding on the Government as though 
 expressly ordered by the superior. Especially 
 is that so when copies of such written documents 
 are sent out by the head of the department in 
 which they are found, without objection on his 
 part to their having been made in the due and 
 regular course of business under his control. 
 (McCollum V. U. S., 17 Ct. Cls., 101.) 
 
 The assistant to an officer designated to per- 
 form the latter "s duties under section 179, 
 Revised Statutes, is quahfied to act as member 
 of a board which the law pro\ddes shall include 
 in its membership the officer whose duties he is 
 temporarily performing. (20 Op. Atty. Gen. 
 483.) 
 
 For other cases, see notes to sections 177 
 182, Revised Statutes. 
 
 Sec. 422. [Bureaus of Yards and Docks, Equipment, Navigation, and Ord- 
 nance.] The cliicfs of the Biu'eau of Yards and Docks, of the Bureau of 
 Equipment and Recruiting, of the Bureau of Navigation, and of the Bureau 
 
 377 
 
Sec. 423. 
 
 Ft. 2. HE VISED STATUTES. 
 
 Navy Department. 
 
 ot Ortliiance, shall be appointed from the list of officers of the Navy, not below 
 the grade of commander. — (5 July, 1862, c. 134, s. 1, v. 12, p. 510.) 
 
 Bureau of Equipment and Recruiting: Was des- 
 ignated as Bureau of Equipment in annual 
 appropriation acta conunencing witli the 
 fiscal year 1892; provision was made for dis- 
 tribution of the duties, funds, and em- 
 ployees of the Bureau of Equipment among 
 the other biu-eaua and offices of the Navy 
 Department by naval appropriation acts 
 for the fiscal years 1912^ 1913, and 1914; 
 and the Bureau of Equipment was abol- 
 ished by act of June 30, 1914(38 Stat., 408). 
 Bureau of Navigation: Detail of an officer of the 
 Navy as assistant to the chief of the Bureau 
 of Navigation was authorized by act of 
 March 3, 1893 (27 Stat., 717). 
 Bureau of Ordnance: Detail of a line officer of 
 the Navy temporarily as assistant to the 
 cliief of the Biu^eau of Ordnance was author- 
 ized by act of May 4, 1898 (30 Stat., 373). 
 Bureau of Yards and Docks: Chief shall be se- 
 lected from Corps of Ci^•il Engineers and 
 have had not less than seven years' active 
 service. (Act June 29, 1906, 34 Stat., 564.) 
 Detail of an officer of the Corps of Civil 
 Engineers as assistant to the Chief of the 
 Bureau of Yards and Docks was authorized 
 by act of August 29, 1916 (39 Stat., 558), 
 Line bureaus. — These four bureaus are 
 essentially line bureaus, while those mentioned 
 in sections 423-426, inclusive, are staff bureaus 
 (22 Op. Atty. Gen., 47); excepting that the en- 
 gineer ecrps (steam engineering) has now been 
 transferred to the line by the personnel act of 
 1899 (25 Op.Atty. Gen., 122). [By amend- 
 ments to sections 422 and 424, the chief of the 
 Bureau of Yards and Docks is now appointed 
 from staff officers (civil engineer corps), and the 
 chief of the Bureau of Steam Engineering is 
 now appointed from line officers.] 
 
 The Bureau of Steam Engineering [now En- 
 gineering] has now become a line bureau 
 through the amalgamation of the Engineer 
 Corps with the line by act of March 3, 1899 
 30 Stat., 1001. (File 22724-16:1, P>b. 13, 1911.) 
 The Bureau of Yards and Docks forme 
 a part of the Navy Department, and the Navy 
 Department is an executive department; ac- 
 cordingly the embossing of envelopes for the use 
 of the Bureau of Yards and Docks is printing for 
 an executive department and must be done at 
 
 Sec. 423. [Bureau of Construction and Eepair.] The cliief of the Bureau of 
 Construction and Repair shall be appointed from the list of officers of the Navy, 
 not below the grade of commander, and shall be a skillful naval constructor.^ — 
 (5 July, 1862, c. 134, s. 1, v. 12, p. 510.) 
 
 the Goverrmient Printing Office. The procure- 
 ment of such em bossing ny a private establish- 
 ment being contrary to law there is no authority 
 for the payment of a voucher therefor. (13 
 Comp. Dec, 366.) 
 
 Only line officers eligible for appoint- 
 ment under this section. — This section re- 
 stricts the President in his choice of chiefs of the 
 four bureaus mentioned to officers of the line 
 not below the grade of commander; and the act 
 of March 3, 1871, incorporated in section 421, 
 enlarges the President's power, gi\-ing him the 
 alternative of making the appointment "from 
 officers ha^dng the relative rank of captain in the 
 etaff corps of the Navy on the active list. " Ac- 
 cordingly the appointment may be made either 
 from line officers not below the grade of com- 
 mander, under this section, or from staff officers 
 of the rank of captain on the active list, under 
 section 421. It may be said that the law as 
 thus construed discriminates against the officers 
 of the staff corps in the matter of a])pointment of 
 chiefs of the four bureaus mentioned in this 
 section by requiring them to hold a higher rank 
 than officers of the line in order to be eligible; 
 but the answer is that since line officers are not 
 eligible at all to the chiefsliip of staff bineaus it 
 is not unfair to require some extra evidence of 
 fitness in a staff officer who is to be made head 
 of a line bureau. (22 Op. Atty. Gen., 47. 
 Chief of Bureau of Yards and Docks is now ap- 
 pointed from staff officers. See law noted 
 above.) 
 
 An officer of the corps of civil engineers, not 
 below the rank of captain, is eligible for appoint- ■ 
 ment as Chief of the Bureau of Yards and Docks 
 under section 421 ; but a civil engineer with the 
 rank of commander is not an officer of the 
 "grade " of commander, and therefore is not eli- 
 gible for appointment as Chief of the Bureau of 
 Yards and Docks under section 422. (22 Op. 
 Atty. Gen., 47. But see subsequent amend- 
 ment to this section noted above; see also note 
 to sec. 421, "Appointment of Chiefs of Bu- 
 reaus, " and note to sec. 423, below.) 
 
 For other cases, see note to section 421, 
 concerning appointment, etatns, rank, title, 
 precedence, pay, retirement, etc., of chiefs of 
 bureaus. 
 
 Byactof March 3, 1893 (27 Stat., 716), it was pro- 
 vided that "any naval constructor ha\dng 
 the rank of captain, commander, or lieu- 
 tenant commander shall be eligible as 
 Chief of the Biireau of Constniction and 
 Repair." 
 
 By section 147], Revised Statutes, it was pro- 
 vided that the Chief of the Bureau of Con- 
 struction and Repair shall have the relative 
 rank of commodore [now the rank of rear 
 admiral], while holding said position, and 
 
 the title of Chief Constructor. (See note 
 to sec. 421, concerning the rank and titles 
 of chiefs of bureaus.) 
 By section 1473, Revised Statutes, it was pro- 
 vided that officers retired from the position 
 of Chief of the Bureau of Constniction and 
 Repair, by reason of age or length of serv- 
 ice, shall have the relative rank of commo- 
 dore [now the rank of rear admiral — see 
 note to section 421, ReAised Statutes, con- 
 cerning retirement of chiefs of bureaus.] 
 
 378 
 
Navy Department. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 425. 
 
 Officer of the Corps of Naval Constructors may 
 be detailed as assistant to the Chief of 
 Bureau of Constructiou and Repair. (Act 
 Aug. 29, 1916, 39 Stat., 558.) 
 Tlie expression, "the list of ofla.cers of 
 the Navy, not below the grade of com- 
 mander," in sections 422 and 423, strictly 
 construed, applies only to officers of the line. 
 Naval constructors belong to the staff; never- 
 theless, they have been treated as eligible, 
 under section 423, for appointment as Chief of 
 the Bureau of Construction and Repair. Thus, 
 imderthe practical interpretation of section 423, 
 naval constructors are treated as officers of the 
 Navy, and their rank as the "grade" required 
 by the section ; but it is to be observed that, in 
 no other way could compliance be had with 
 the explicit requirement that the officer ap- 
 pointed Chief of the Bureau of Construction and 
 
 Repair shall be "a skillful naval constructor." 
 Faults in expression were disregarded in order 
 to carry out the manifest intention of the law- 
 maker. (22 Op. Atty. Gen., 47; see also note 
 to sec. 422, R. S., and note to sec. 421, R. S., 
 "Appointment of Chiefs of Bureaus.") 
 
 The oflace of Cliief of the Bureau of Con- 
 struction and Repair is not a "grade " in the 
 Navy, and was not made so because the rank, 
 title, and emoluments of the incumbent, there- 
 tofore temporary, were made permanent by 
 the act of June 24, 1910 [now repealed]. (28 
 Op. Atty. Gen., 526. But see cases noted un- 
 der sec. 421, R. S., "Ill status of Chief of 
 Bureaus.") 
 
 For other cases, see note to section 421 
 Revised Statutes, concerning appointment, 
 status, rank, title, precedence, pay, retirement, 
 etc., of chiefs of bureaus. 
 
 Sec. 424. [Bureau of Steam Engineering.] Tlie Chief of the Bureau of Steam 
 Engineering shall be appointed from the line of officers of the Navy not below 
 the grade of lieutenant-commander, and shall be a skillful engineer. 
 
 This section was amended to read as above by 
 act of June 7, 1900 (31 Stat._, 702). 
 
 As originally enacted, this section read as fol- 
 lows: "Sec. 424. The chief of the Bureau 
 of Steam Engineering shall be appointed 
 from the chief engineers of the Navy, and 
 shall be a skillful engineer." — (5 July, 
 1862, c. 134, s. 1, V. 12, p. 510.) 
 
 The Engineer Corps of the Navy was trans- 
 ferred to the line by act of ]\Iarch 3, 1899 
 (30 Stat., 1004), and the grade of chief 
 engineers on the active list thereupon 
 
 By act of June 4, 1920, (41 Stat., 828), the 
 Bureau of Steam Engineering was desig- 
 nated as the "Bureau of Engineering." 
 
 By section 1471, Revised Statutes, it was pro- 
 vided that the Chief of the Bureau of Steam 
 Engineering [now Engineering] shall have 
 the relative rank of commodore [now the 
 rank of rear admiral], while holding said 
 position, and the title of engineer in chief. 
 (See note to sec. 421, concerning the rank 
 and titles of chiefs of bureaus.) 
 
 By section 1473, Revised Statutes, it was pro- 
 vided that officers retired from the position 
 of Chief of the Bureau of Steam Engineer- 
 
 length of service, shall have the relative 
 rank of commodore [now the rank of rear 
 admiral — see note to section 421, concern- 
 ing retirement of chiefs of bureaus]. 
 By act of March 3, 1905 (33 Stat., 1111), the 
 detail of a line officer of the Navy was 
 authorized as assistant to the Chief of the 
 Bureau of Steam Engineering [now Engi- 
 neering]. 
 The retirement of the Chief of the 
 Bureau of Engineering creates a vacancy 
 in that office, unless the Secretary of the Navy 
 order the incumbent, in accordance with law, 
 to continue to perform the duties of said office 
 after his retirement, wliich was not done in 
 this case. The vacancy so created can not 
 legally be filled by the assignment of the Chief 
 of the Bureau of Construction and Repair to 
 perform the duties of Chief of the Bureau of 
 Engineering. (27 Op. Atty. Gen., 337, 344; 27 
 Op. Atty. Gen., 376, 382.) 
 
 The Bureau of Engineering has now be- 
 come a line bureau. (See note to sec. 422, 
 R. S.) 
 
 For other cases, see note to section 421, 
 concerning appointment, status, rank, title, 
 precedence, pay, retirement, etc., of chiefs of 
 bureaus. 
 
 ing, [now Engineering] by reason of age or 
 Sec. 425. [Bureau of Supplies and Accounts.] The chief of the Bureau 
 of Provisions and Clothing shall be appointed from the list of paymasters of 
 the Navy of not less than ten years' standing. — (5 July, 1862, c. 134, s. 1, 
 V. 12, p. 510.) 
 
 "Bureau of Provisions and Clothing" was 
 changed to "Bureau of Supplies and Ac- 
 counts" by act of July 19, 1892 (27 Stat., 
 243, 245). 
 
 Chief of the Bureau of Supplies and Accounts 
 to have the relative rank of commodore 
 [now the rank of rear admiral] while hold- 
 ing said position, ard the title of paymas- 
 ter general. (Sec. 1471, R. S. See note to 
 
 sec. 421, concerning the rank and titles of 
 chiefs of bureaus.) 
 Retirement of Chief of the Bureau of Supplies 
 and Accounts, by reason of age or length of 
 service, with the relative rank of commo- 
 dore [now the rank of rear admiral] was au- 
 thorized by section 1473, Revised Statutes. 
 (See note to sec. 421, concerning retire- 
 ment of chiefs of bureaus.) 
 
 54641°— 22- 
 
 -25 
 
 379 
 
Sec. 42' 
 
 PL 2. REVISED STATUTES. 
 
 Navy Department. 
 
 Petail of a pay oflicer of the Navy as assistant 
 
 to the Chief of the Bureau of Supplies and 
 
 Accounts, was authorized hy act of July 
 
 26, 1894 (28 Stat., 132 1, and the pay of the 
 
 oflicer eo detailed was fixed by act of 
 
 March 3. 1899 (30 Stat., 1038). 
 Civilian assistant to Chief of the Bureau of Sup- 
 plies and Accounts, to perform also tne 
 
 duties of chief clerk, was provided for by 
 
 act of February 25. 1903 (32 Stat., 890), and 
 
 by appropriation acts for subsequent years. 
 
 Sec. 426, [Bureau of Medicine and Surgery.] The chief of the Bureau 
 of Mechcine and Surgery shall be appointed from the list of the surgeons of the 
 Nav3^— (5 July, 1862, c. 134, s. 1, t. 12, p. 510.) 
 
 Duties of Bureau of Supplies and Accounts: 
 
 See note to section 419, Re-vised Statutes. 
 
 Appointment, status, rank, title, precedence, 
 
 pay, retirement, etc., of chiefs of bureaus: 
 
 See note to section 421, Revised Statutes. 
 
 The Avord '"paymasters" in this section is 
 
 construed in practice as meaning officers of the 
 
 Supply Corpp, and is not restricted to officers in 
 
 the f;;rade of paymaster. (See note to sec. 1376, 
 
 R. S., as to organization of the Supply Corps.) 
 
 Chief of the Bureau of Medicine and Surgery to 
 have the relative rank of commotlore [now 
 the rank of rear admiral] while holding said 
 position, and the title of Surtreon General. 
 (Sec. 1471, R. S. See note to sec. 421, con- 
 cerning the rank and titles of chiefs of 
 bureaus.) 
 
 Retirement of Chief of the Biu-eau of Medicine 
 and Surgery, by reason of age or length of 
 service, with the relative rank of commo- 
 
 dore [now the rank of rear admiral], was au- 
 thorized by section 1473, Revised Statutes. 
 (See note to sec. 421 concerning retirement 
 of chiefs of bureaus.) 
 
 Detail of a medical officer as assistant to the Bu- 
 reau of Medicine and Surgery, was author- 
 ized by section 1375, Revised Statutes. 
 
 Appointment, status, rank, title, precedence, 
 pay, retirement, etc., of chiefs of bureaus: 
 See note to section 421, Re\dsed Statutes. 
 
 Sec. 427. [Use of engraved plates of Wilkes's Expedition.] The Joint 
 Committee on the Library shall grant to the Department of the Nary the 
 use of such of the engraved plates of the United States Exploring Expedition 
 under Captain Wilkes, in charge of the committee, as may be desired for 
 the purpose of printing a supply of charts for the use of the Department. — (26 
 July, 1866, Res. No. 80, v. 14, p. 366.) 
 
 Historical note. — By act of May 14, 1836 
 (sec. 2, 5 Stat., 29), Congress authorized the 
 President to send a survepng and exploring 
 expedition to the Pacific Ocean and the South 
 Seas, and made an appropriation of $150,000 for 
 that purpose. On April 20, 1838, Lieut. Charles 
 Wilkes was appointed to the command of the 
 expedition, which sailed in the month of Au- 
 gust, 1838. (See Wilkes v. Dinsman, 7 How., 
 91; see also, "The Wilkes Exploring Expedi- 
 tion," U. S. Naval Institute Proceedings, vol. 
 
 40, no. 5, p. 1323.) 
 
 The Wilkes Exploring Expedition ' ' was a pub 
 
 specially authorized by 
 * for purposes of commerce 
 
 lie enterprise 
 Congress * * 
 
 and science, very valuable to the country', and 
 not entirely without interest to most of the civ- 
 ilized world." (Wilkes v. Dinsman, 7 How., 
 122; see also Dinsman v. Wilkes, 12 How., 389.) 
 
 By act of August 26, 1842 (5 Stat., 534), Con- 
 gress provided for publishing, imder the super- 
 vision and direction of the Joint Committee on 
 the Librarj^, "an account of the discoveries 
 made by the exploring expedition, under the 
 command of Lieut. \\'ilkes, of the United States 
 Navy, ' ' and by act of March 3, 1843 (5 Stat. , 645), 
 made an appropriation of $20,000 ' ' for preparing 
 and publii^hing charts, and otherwise carrying 
 into effect " the act of August 26, 1842. 
 
 By act of March 3, 1851 (9 Stat., 599), the 
 plates and engraAings, which were made at the 
 expense of the United States, were to be de- 
 livered to the Smithsonian Institution, to enable 
 that institution to publish a new edition of 
 Wilkes' Narrative. 
 
 July 7, 1866 (Congress Letter Book, Navy 
 Dept., vol. 14, p. 332), the Secretary of the 
 Navy advised the chairman of the Joint Com- 
 mittee on the Library, United States Senate, 
 that the charts published imder the authority 
 of the act of March 3, 1843, had been exhausted, 
 and that the Navy Department desired to be 
 put in possession of the plates to enable it to 
 have additional charts printed therefrom for the 
 use of the Na\y and the Commercial Marine, and 
 suggesting, in case the committee should not 
 feel authorized to transfer the plates to the 
 Na\y Department, a joint resolution be sub- 
 mitted to Congress authorizing such transfer to 
 be made. As a result, the joint resolution was 
 adopted, which was afterwards embodied in 
 section 427, Revised Statutes. 
 
 From the records of the Hydrographic Office 
 it appears that there were originally 106 copper 
 plates covering the above mentioned exploring 
 expedition, which were apparently turned over 
 to the Na\y Department in compliance with the 
 joint resolution now embodied in section 427, 
 Re^■ised Statutes. These copper plates were 
 not returned to the Joint Committee on the Li- 
 brary', but were used in the Hydrographic Office 
 for several years. Thirty-eight of them are still 
 in use by that office for printing charts and 27 
 others are stored as record plates, but have not 
 been used for some time. Of the remaining 41, 
 some were turned over to the Superintendent 
 of the Coast and Geodetic Survey in 1881 as 
 covering areas coming within the jurisdiction 
 of that office, and the balance were scoured off 
 and the copper plates used for other purposes. 
 
 380 
 
Navy Department. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 429. 
 
 So far as known, the Joint Committee on the 
 Library has never requested the return of any 
 of these plates, and they are regarded by the 
 Hydrographic Office as the property of that 
 office and^of the Coast and Geodetic Survey. 
 (File 9386-14:18, Jan. 19, 1916.) 
 
 In the Commissioners' Draft of the Revised 
 Statutes (vol. 1, p. 214), it was stated with ref- 
 erence to the joint resolution now embodied iii 
 the revision as section 427 : "Very probably this 
 provision may have become obsolete. Itstands 
 however, in the Statutes at Large unrepealed." 
 [However, inasmuch as it appears frona the 
 above that certain of these plates are still in use 
 by the Hydrographic Office, it would seem that 
 section 427, Revised Statutes, can not be re- 
 garded as obsolete unless it should be construed 
 as having provided for an absolute transfer of 
 said plates to the Navy Department. In this 
 
 connection see United States Compiled Statutes 
 1917, in which section 427, Revised Statutes, is 
 treated by the publishers as obsolete.] 
 
 September 4, 1908 (file 15567-6), the presi- 
 dent of the Carnegie Institute of Washington 
 was informed by the Navy Department that 
 "certain unpublished magnetic data obtained 
 on the Wilkes expedition," comprising several 
 hundred miscellaneous books and sheets, form- 
 ing part of the archives of the Hydrographic 
 Office, were not arranged for access to the pub- 
 lic, and could not be spared for publication, as 
 suggested, by the said institute ; but that ' 'later, 
 the results obtained from them will be made 
 generally available, if their scientific value is 
 clear ; it is in times placed iu question by certain 
 gaps in the continuity of observation. To fill 
 these, much search for further material, has so 
 far, proven unavailing." 
 
 Sec. 428. [Collection of enemies' flags.] The Secretary of tlie Navy shall 
 I'rom time to time cause to be collected and transmitted to him at the seat of 
 Government all flags, standards, and colors taken by the Navy from the enemies 
 of the United States.— (18 Apr., 1814, c. 78, s. 1, v. 3, p. 133.) 
 
 A similar provision to this is contained in sec- 
 tion 1554, Revised Statutes. 
 Preservation and public display of captm-ed 
 
 flags, under the direction of the President, 
 is provided for by section 1555, Revised 
 Statutes. 
 
 Sec. 429. [Reports to be made by Secretary of the Navy.] The Secretary 
 of the Navy shall make annual reports to Congress upon the following 
 subjects: [See §§ 19.5, 196.] 
 
 First. A statement of the appropriations of the preceding fiscal year for the 
 Department of the Navy, showing the amount appropriated under each specific 
 head of appropriation, the amount expended under each head, and the balance 
 which, on the thirtieth day of June preceding such report, remained imex- 
 pended. Such report shall be accompanied by estimates of the probable 
 demands which may remain on each appropriation. 
 
 Second. A statement of all offers for contracts for supplies and services made 
 during the preceding year, by classes, indicating such as have been accepted. 
 
 Tliird. A statement showing the amounts expended during the preceding 
 fiscal year for wages of mechanics and laborers employed in building, repairing, 
 or equipping vessels of the Navy, or in receiving and securing stores and ma- 
 terials for those purposes, and for the pm^chase of material and stores for the 
 same pm-pose; and showing the cost or estimated value of the stores on hand, 
 under this ai)propriation, in the navy-yards, at the commencement of the next 
 preceding liscal year; and the cost or estimated value of articles received and 
 expended during the year; and the cost or estimated value of the articles 
 belonging to this appropriation which may be on hand in the navy-yards at 
 the close of the next preceding fiscal year. 
 
 Fourtli. A statement of all acts done by him in making sale of any vessel 
 or materials of the Navy; specifying all vessels and materials sold, the parties 
 buying the same, and the amount realized therefrom, together with such other 
 facts as may be necessary to a fidl understanding of his acts. — (1 May, 1820, 
 c. 52, s. 2, V. 3, p. 567; 3 Mar., 1843, c. 83, v. 5, p. 617; 27 July, 1866^ c. 287, 
 s. 3, V. 14, p. 305.) 
 
 381 
 
Sec. 420. 
 
 Pt.2. REVISED STATUTES. 
 
 Navy Departnient. 
 
 Ainoiulment to this section was made by the 
 act of Juno 22, 1910 (36 SUit., 591), \yhich 
 repealed the second clause of the section as 
 quoted above with reference to contracts, 
 and at the same time repealed a similar 
 provision of section 3720, Revised Statutes. 
 
 Other Reports Required to be Made. 
 
 Accounts: Bureau of Supplies and Accounts 
 shall keep money accounts of the Naval 
 Establishment so as to show direct and in- 
 direct charges in the cost of work and shall 
 report same annually for the information 
 of Congress (act Mar. 4, 19 LI, 36 Stat., 1267); 
 shall also report annually to Secretary of 
 the Navy all receipts and expenditures 
 (act May 13, 1908, 35 Stat., 153). 
 
 Advisory Committee for Aeronautics is required 
 to submit annual report to Congress through 
 the President, including itemized state- 
 ment of expenditures. (Act Mar. 3, 1915, 
 38 Stat.. 930.) 
 
 Buildings rented: Heads of departments are re- 
 quired to report to Congress in annual esti- 
 mates buildings rented for their depart- 
 ments, and the purpose and cost thereof. 
 (Act Mar. 3, 1883, 22 Stat., 552.) The Sec- 
 retary of the Treasury' is required to report 
 annually to Congress, in Book of Estimates, 
 buildings rented by the Government in the 
 District of Columbia, and the purpose and 
 cost thereof. (Act July 16, 1892 (27 Stat., 
 199); amended by act May 1, 1913, sec. 3, 
 38 Stat., 3.) 
 
 Claims: Secretary of the Navy is required to re- 
 port annually to Congress for payment, 
 through the ' Secretary of the Treasury, 
 amounts found to be due claimants for dam- 
 ages by collisions for which vessels of the 
 Navy are considered responsible, where 
 amount of claim does not exceed $500. 
 (Act June 24, 1910, 36 Stat., 607.) Also 
 shall report annually to Congress amount 
 of claims adjusted by him for damage to 
 privately owned property not occasioned 
 by vessels of the Navy. (Act July 11, 
 1919, 41 Stat., 132.) 
 
 Condition of business: Heads of departments are 
 required to make annual report to Congress, 
 in the Book of Estimates, as to the condi- 
 tion of business in the department, and 
 whether in arrears. (Act Alar. 2, 1895, 
 sec. 7, 28 Stat.. 808.) Monthly reports are 
 to be made to head of department as to 
 condition of business in the bureaus and 
 offices of the department at Washington 
 (act Mar. 15, 1898. sec. 7. 30 Stat., 317); 
 and quarterly reports are to be made to the 
 President by the heads of departments as 
 to the condition of the public business and 
 whether any branch thereof is in arrears 
 (act Mar. 15, 1898, sec. 7, 30 Stat., 317). 
 
 Contingent funds: Heads of departments are re- 
 quii-ed to make annual report to Congress 
 of detailed expenditures from contingent 
 funds of the department and of the bureaus 
 and offices thereof. (Sec. 193, R. S.; act 
 Mar. 3, 1877, 19 Stat., 306.) 
 
 Disbursing officers are reqiured to make annual 
 reports to heads of departments of disburse- 
 ments by them, and heads of departments 
 
 are required to communicate result of such 
 reports to Congress. (Sec. 193, R. S.) 
 
 Employees: Annual report by Secretary of the 
 Navy to Congress is required, of amount ex- 
 pended for ci^ilians employed on clerical 
 duty, or in any other capacity than ordi- 
 nary mechanics and workingmen, from 
 " Pav of the Navy." and other naval appro- 
 priations (act Jan. 30, 1885, sec. 3, 23 
 Stat., 295); a similar report is reqiiired to 
 be made by the Secretary of the Navy in 
 the annual Book of Estimates of the num- 
 ber and compensation of persons employed 
 from "Increase of the Navy," and other 
 general appropriations (act Apr. 17, 1900, 
 31 Stat., 117); report is also to be made in 
 the annual estimates of persons employed 
 for technical services from appropriations, 
 "Engineering," " Constniction and re- 
 pair," "Ordnance and ordnance stores," 
 and from appropriations and allotments 
 under the Bureau of Yards and Docks (see 
 annual legislative, executive, and judicial 
 appropriation acts — e. g., act Mar. 3, 1917, 
 39 Stat., 1100, 1101). 
 
 Employees at navy yards: Secretary of the 
 Navy shall each year, in the annual esti- 
 mates, report to Congress the number of 
 persons employed from lump sum appro- 
 priations for clerical, drafting, inspection, 
 and messenger ser\dce at navy yards and 
 stations and offices under the Navy Depart- 
 ment, their duties, and the amount paid to 
 each. (Act Mar. 3, 1909, 35 Stat., 
 755.) 
 
 Employees detailed: Heads of departments are 
 required to report to Congress, in the 
 annual Book of Estimates, employees de- 
 tailed to other offices, in accordance with 
 section 166, Revised Statutes, as amended. 
 (Act Mar. 2, 1895, sec. 7, 28 Stat., 808.) 
 
 Employees inefficient: Heads of departments 
 are required to report, in the annual Book 
 of Estimates, number of employees in each 
 bureau and office below a fair standard of 
 efficiency, and the salary of each. (Act 
 July 11, 1890, sec. 2, 26 Stat., 268.) 
 
 Estimates: Extracts from annual reports of 
 heads of departments and bureaus relating 
 to estimates for appropriations and the 
 necessity therefor, are to be included in 
 the Book of Estimates by the Secretary of 
 the Treasurj\ (Act Mar. 3, 1875, sec. 3, 18 
 Stat. , 370. ) Report to accompany estimates 
 showing amount of outstanding appropria- 
 tion, if any, which will probably be re- 
 quired for each particular item of expendi- 
 tm-e. (Sec. 3665, R. S.) [Compare laws 
 cited under section 430, Revised Statutes, 
 as to restriction upon "notes" following 
 estimates.] 
 
 Exchanges of typewriters and labor-saving 
 de\dces in part payment for new machines 
 shall be reported annually to Congress, 
 with details relating thereto. (Act Mar. 
 4, 1915, sec. 5, 38 Stat., 1161.) 
 
 Pay of naval personnel: Secretary of the Navy 
 is required to report anniially to Congress 
 amount of pay and allowances for all offi- 
 cers and enlisted men. (See annual naval 
 appropriation acts, e. g., act Mar. 3, 1915, 38 
 Stat., 928.) 
 
 382 
 
Navy Department. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 429. 
 
 Public printing: Quarterly report of work done 
 in departmental branches of Government 
 Printing Office is to be made to the head of 
 each department by the person designated 
 to approve requisitions for the department, 
 and such reports are to be transmitted to 
 the Public Printer for his annual report to 
 Congress. (Act Jan. 12, 1895, sec. 31, 28 
 Stat., 605.) Public Printer to report an- 
 nually to Congress the cost of operating 
 each "departmental branch of the Govern- 
 ment Printing Office (act Jan. 12, 1895, 
 sec. 31, 28 Stat., 605); a detailed statement 
 of each account with the departments for 
 printing and binding (act Jan. 12, 1895, 
 sec. 22, 28 Stat., 604); and number of 
 copies of each department report and docu- 
 ment printed ujjon requisition by the de- 
 partment, and titles and numbers of books 
 bound for officers (act Jan. 12, 1895, sec. 19, 
 28 Stat., 603.) 
 
 Publications received and distributed: De- 
 tailed report thereof is to be made annually 
 to Congi-ess by the head of department. 
 (Act Jan. 12, 1895, sec. 92, 28 Stat., 623.) 
 
 Register of officers of the Navy: By Senate 
 resolution of December 13, 1815 (Annals of 
 Congress, 14 Cong., Istsess., 1815-1816, pp. 
 21, 22), it was ''Resolved, That the Secre- 
 tary of War and the Secretary of the Navy 
 be requested to furnish annually, on the 
 first of Januarj^ each member of the Senate 
 with a copy of the Register of the Officers 
 of the Army and Navy of the United 
 States." [From 1840 to 1861, inclusive, 
 the annual Navy Register bore on its title 
 page "Printed by order of the Secretary of 
 the Navy, in compliance with a resolution 
 of the Senate of the United States of 
 December 13, 1815." A House resolution 
 of January 23, 1812 (Annals of Congress, 12 
 Cong., 1st sess., pt. 1, p. 929), and another 
 of March 3, 1813, required registers to be 
 submitted for those years only. Provision 
 is made by act of January 12, 1895, section 
 73 (28 Stat., 616), for the printing of 1,500 
 copies of the Navy Register for the use of 
 the Senate and House. See file 27231-8, 
 Feb. 7, 1911, and note to section 1457, R. S.] 
 
 Repairs or changes proposed upon vessels 
 amounting to more than $300,000 in any 
 case : Annual report thereof is to be made to 
 Congress by Secretary of the Navy. (Act 
 Mar. 2. 1907, 34 Stat., 1195, as amended by 
 act Aug. 29, 1916, 39 Stat., 605.) Annual 
 report also to be made to Congress liy the 
 Secretary of the Navy, in detail, of amount 
 expended for repairs to vessels, where such 
 amounts exceed $200,000, for any one ship 
 in anv one fiscal year. (Act Mar. 3, 1909, 
 35 Stat., 769.) 
 
 Sales of imserviceable vessels and materials are 
 to 1)6 reported annually to Congress by 
 Secretary of the Navy. (Sec. 1541, R. S.; 
 act Aug. 5, 1882, sec. 2, 22 Stat., 296.) A 
 detiiiled statement of the proceeds of all 
 sales of old material, condemned stores, 
 supplies, or other public property of any 
 kind, shall be submitted to Congress at the 
 beginning of each regular session, as a 
 separate communication and not in the 
 
 Book of Estimates. (Sec. 3672, R. S., 
 amended by act Feb 27, 1877, 19 Stat., 
 249, and act June 25, 1910, sec. 6, 36 Stat., 
 773.) Heads of departments must furnish 
 Secretary of the Treasury, within 30 days 
 after close of each fiscal year, statement of 
 money arising from proceeds of public 
 property or other source, which was not 
 paid into the General Treasury, and de- 
 tailed expenditiu-es, if any, from such 
 fund, which statement shall be transmitted 
 by the Secietaiy of the Treasirry to Con- 
 gress at beginning of each regular session. 
 (Act June 30, 1906, sec. 5, 34 Stat., 763.) 
 
 Secretary of Treasury is to report to Congress an- 
 nually application of money appropriated 
 for the Navy Department (sec. 260, R.S.); 
 also, to report annually to Congress detailed 
 receipts and expenditures in the naval 
 service, balances on hand, and amounts 
 lost or imaccounted for (act June 19, 1878, 
 20 Stat., 167); and to report annually to 
 Congress officers who have been delinquent 
 in rendering their accounts and officers in- 
 debted to the United States (act May 28, 
 1896, sec. 4, 29 Stat., 179, amending act 
 July 31, 1894, 28 Stat., 209). 
 
 Supplies: Bureau of Supplies and Accounts is 
 required to report annually to Congress the 
 money value of supplies on hand, supplies 
 purchased and expended during year, and 
 balances remaining (act Mar. 2, 1889, 25 
 Stat., 817); also, to report annually to the 
 Secretary of the Navy all receipts and ex- 
 penditures (act May 13, 1908, 35 Stat., 
 153). 
 
 Travel: Annual report is required to be made to 
 Congress in detail by heads of departments 
 ,of travel performed on official business, 
 from ^^'ashington to points outside of Dis- 
 trict of Columbia, by officers or employees 
 of such departments other than special 
 agents. Inspectors, or employees who are 
 required to constantly travel. (Act May 
 22, 1908, sec. 4, 35 Stat., 244.) 
 
 Useless papers: Report to Congress by head of 
 department is required whenever useless pa- 
 pers accumulated in files of department 
 should be disposed of. (Act Feb. 16, 1889, 
 25 Stat., 672; act Mar. 2, 1895, 28 Stat., 933.) 
 Commanders in chief of fleets are to make 
 report to the Secretary of the Na\'y of use- 
 less papers accumulated in files of vessels of 
 the Navy (act Aug. 22, 1912, 37 Stat., 329); 
 and Secretary of the Navy is required to 
 make detailed report to Congress of useless 
 papers destroyed at navy yards (act Mar. 3, 
 1915, 38 Stat.", 929). 
 
 Distribution, Printing, etc., of Reports. 
 
 Distribution: No report, document, or publica- 
 tion of any kind distributed from an execu- 
 tive department shall contain any notice 
 that the same is sent with "the compli- 
 ments" of an officer of the Government, or 
 with any special notice that it is so sent, 
 except that notice that it has been sent, 
 with a request for an acknowledgment of 
 its receipt, may be given. (Act Jan. 12, 
 1895, sec. 73, 28 Stat. 620; see also acts 
 
 383 
 
Sec. 429. 
 
 Pt. 2. REVISED STATUTES. 
 
 Navy Department. 
 
 Mar. 3, 1893, 27 Stat., 612; ami Aug. 5, 
 1892, 27 Stat., 388.) 
 
 Dislriliution of publuations for any executive 
 ilei)artmeiit, e.\(.'ei)t inap.s, weather rei)<>rt.s, 
 weather cards, orders, iustruction.s, diroc- 
 tioiis, notices, or circuhirs of information, 
 shall be made by the Public Printer, in- 
 cluding addressing, wrapi>ing, mailing, 
 etc., in accordance with mailing lists or 
 frankeil slij)S furnished by the dei>artment. 
 (Act Aug. 23, 1912, sec. 8, 37 Stat., 414.) 
 All reports or documents to be distributed 
 for Senators, Representatives, and Dale- 
 gates shall be folcied and distributed from 
 the folding rooms of the Senate and House 
 ot Representatives. (Act Jan. 12, 1895, 
 sec. 71, 28 Stat., 612.) 
 
 Ownership of pul)lications: Government puldi- 
 cations furnished ofiicers for oflicial use 
 shall be delivered to their successors on the 
 ex])iration of their official terra. (Act Jan. 
 12, 1895, sec. 74, 28 Stat., 620.) 
 
 Printing authorized: Heads of executive de- 
 partments shall direct whether reports 
 made to them by bureau chiefs and chiefs 
 of divi.'^ions shall be printed or not. (Act 
 Jan. 12, 1895, sec. 89, 28 Stat., 622.) No 
 book or document not ha\'ing to do with the 
 ordinary business tiansactious of the execu- 
 tive departments shall be printed on the 
 requisition of any executive department 
 unless expressly authorized by Congress. 
 (Act Mar. 3, 1905, 33 Stat., 1249.) No doc- 
 ument or matter shail be printed except 
 that which is authorized by law, and nec- 
 essary to the public business; and execu- 
 ti\'e officers before transmitting their an- 
 nual reports shab carefully examine same 
 and all accompanying documents and ex- 
 clude therefrom all matter, including en- 
 gra\'ings, maps, drawings, and illustrations, 
 except such as they shall certify in their 
 letters transmitting such reports are neces- 
 sary and relate entirely to the transaction 
 of the public business. (Act Jan. 12, 1895, 
 sec. 94, 28 Stat., 623.) Illustrations, maps, 
 etc., are to be excluded from annual reports 
 except as necessary (act Aug. 30, 1890, 26 
 Stat., 411); appropriation for printing and 
 binding shall not be used for any illustra- 
 tion, engraving, or photograph in any docu- 
 ment or report ordered printed by Congress 
 unless the order to print expressly author- 
 izes the same, nor in any document or report 
 of any executive department until the head 
 of the department shall certify in a letter 
 transmitting such rejwrt that the illustra- 
 tion is necessary and relates entirely to the 
 tran-saction of public business (act Mar. 3, 
 1905, 33 Start;., 1213). 
 
 Printing, cost of: Printing and binding of 
 documents and reports emanating from the 
 executive departments shall be charged in 
 part to allotment of appropriation for print- 
 ing and binding of the department, and in 
 part to the allotment for printing and bind- 
 ing for Congi-ess. (Act Mar. 30, 1906, 34 
 Stat., 825.) Any executive department sub- 
 mitting reports or documents in response to 
 inquiries from Congress shall submit there- 
 with estimate of the probable cost of print- 
 
 ing the usual number, where such reports 
 or documents exceed 50 pages. (Act Jan. 
 12, 1895, sec. 2, 28 Stat., 601, as amended 
 by Act Mar. 1, 1907, 34 Stat., 1012.) 
 
 Printing, nundjer of copies: No report, publica- 
 tion, or document shall be printed in excess 
 of 1 ,000 of each in any one fiscal year, mth- 
 out authorization therefor by Congress, 
 except that of the annual report of the head 
 of the department, without appendices, 
 there may be printed not to exceed 5,000 
 co])ies bound in pamphlet form; and of the 
 reports of chiefs of bureaus without appen- 
 dices there may be printed not to exceed 
 2,500 copies bound in pamphlet form; etc. 
 (Act Jan. 12, 1895, sec. 89, 28 Stat., 622.) 
 
 Printing, by Government Printing Office: All 
 printing, binding, and blank books for 
 the executive depaitment of the Govern- 
 ment shall be done at the Government 
 Printing Office, unless otherwise pro\'ided 
 by law. (ActJao. 12, 1895, sec. 87, 28 
 Stat., 622.) 
 
 Printing ordered by Congress: Publications 
 ordered printed by Congress, other than 
 reports of committees, shall be known as 
 Senate and House documents, and num- 
 bered consecutively. (Res. Jan. 15, 1908, 
 sec. 1, 35 Stat., 565.) "Usual number" of 
 reports and documents, prescribed by 
 statute, shall be printed when ordered by 
 Congress and distributed as specifically 
 provided for to libraries and other desig- 
 nated depositories, etc. (Act Jan. 12, 
 1895, sec. 54, amended by act June 25, 
 1910, 36 Stat., 868.) Of the annual reports 
 of the departments to Congress, there shall 
 be printed, in addition to the "usual 
 number," 1,000 copies for the Senate, and 
 2,000 for the House. (Act Jan. 12, 1895, 
 see. 73, 28 Stat., 612, 615.) The depart- 
 mental edition, if any, of publications 
 originating in or prepared by an executive 
 department, shall be printed concurrently 
 wth the "usual number." (Res. Jan. 15, 
 1908, sec. 1, 35 Stat., 565.) Public docu- 
 ments and reports may be printed for Con- 
 gress or executive departments in two or 
 more editions, not to exceed the total num- 
 ber of copies authorized. (Res. Mar. 30, 
 1906, 34 Stat., 826.) Title of publications 
 printed by order of Congress for distribution 
 by the Superintendent of Documents to 
 State and Territorial Libraries and other 
 designated depositories shall be the title 
 suggested by the subject of the volume. 
 (Res. Jan. 15, 1908, see. 2, 35 Stat., 566.) 
 
 Printing lequisition: No printing shall be done 
 for the executive departments without a 
 special requisition, .signed by the chief of 
 the department, and filed with the Public 
 Printer. (Act Jan. 12, 1895, sees. 89 and 
 93, 28 Stat., 622 and 623.) 
 
 Sale authorized: Copies of reports are to be 
 furnished by Public Printer to all appli- 
 cants, upon payment in advance of print- 
 ing, not to exceed 250 to any one applicant. 
 (Act Jan. 12, 1895, sec. 42, 28 Stat., 607.) 
 Public documents may be reprinted for 
 sale by order of the Superintendent of 
 Documents, approved by the department 
 
 384 
 
Navy Department. 
 
 rt.2. REVISED STATUTES. 
 
 Sec. 430. 
 
 from which they originated. (Res. Mar. 
 28, 1904, 33 Stat. 584.) 
 
 Time of making annual reports: Where not oth- 
 erwise specified, annual reports to Congress 
 are to be made at commencement of each 
 regular session. (Sec. 195, R. S.) Neglect 
 or refusal of any officer to make any report 
 within the time prescribed by law is pun- 
 ishable by fine of not more than $1,000. 
 (Criminal Code, act Mar. 4, 1909, sec. 101, 
 35 Stat., 1107.) 
 
 Time of furnishing copy to printer: By section 
 196, Revised Statutes, it was provided that 
 copy of annual reports must be furnished 
 Public Printer by heads of departments on 
 or before the third Monday of Norember 
 and copies of documents usually accompa- 
 nying annual reports, on or before the 1st 
 day of November. This section has been 
 amended by clauses in the annual appro- 
 priation acts providing that copies of docu- 
 ments accompanying annual reports must 
 be furnished to Public Printer on or befoie 
 the 15th day of October; copies of annual 
 reports on or before November 15; and 
 complete revised proofs of accompanying 
 documents and annual reports on the 10th 
 and 20th days of November, respectively. 
 (See sundry civil acts, Aug. 1, 1914, 38 Stat., 
 ■ 680, and July 1, 1916, sec. 3, 39 Stat., 336; 
 see also, 30 Op. Atty. Gen., 293.) Docu- 
 ments and reports are not to be printed 
 until illustrations or maps designed there- 
 for shall be ready for publication; nor 
 unless entire copy and illustrations for the 
 work are furnished Public Printer within 
 one year. (Act Jan. 12, 1895, sec. 80, 28 
 Stat., 621.) 
 
 Miscellaneous Reports. 
 
 Accidents to employees: In certain cases report 
 of accidents is to be made by heads of de- 
 partments to Employees' Compensation 
 Commission. (Act Sept. 7, 1916, sec. 24, 
 39 Stat., 747.) 
 
 Appointments without advice and consent of 
 Senate: Report to be made to Secretary of 
 the Treasury by the President whenever 
 he designates, authorizes, or employs any 
 person to perform the duties of any office 
 without the advice and consent of the Sen- 
 ate. (Sec. 1774, R. S.) 
 
 Board of Visitors to Naval Observatory is to re- 
 port to Secretary of the Navy annually, or 
 oftener, condition of observatory buildings 
 and apparatus, efficiency of its scientific 
 work, and expenditures in administration. 
 (Act Mar. 3, 1901, 31 Stat., 1122.) 
 
 Chaplains shall report annually to the Secretary 
 of the Na\'y the official services performed 
 _ by them. (Sec. 1398, R. S.) 
 
 Chief clerks in departm ants are required to make 
 monthly reports to their superiors of any 
 existing defect in the arrangement or dis- 
 patch of business. (Sec. 174, R. S.) 
 
 Official Register: Secretary of the Navy is to 
 furnish the Director of the Census full and 
 complete list of all officers, agents, clerks, 
 and employees under the Navy Depart- 
 ment, including naval officers and mid- 
 shipmen, for pulilication in Official Regis- 
 ter of the United States, such information 
 to be furnished on the 1st of July in each 
 year in which a new Congress is to assem- 
 ble. (Act Jan. 12, 1895, sec. 73, 28 Stat., 
 618, as amended by act June 7, 1906, 34 
 Stat., 219, superseding sec. 198, R. S.) 
 
 Sec. 430. [Estimates for expenses.] All estimates for specific, general, and 
 contingent expenses of tlie Department, and of the several Bureaus, shall be 
 furnished to the Secretary of the Navy by the chiefs of the respective 
 Bureaus. [See § 3666.]— (5 July, 1862, c. 134, s. 5, v. 12, p. 511.) 
 
 Appropriations for the service of the year, 
 which have been made by former acts, are 
 to be stated by the Secretary of the Treas- 
 ury in annual estimates of appropriations 
 required for the pubUc service. (Sec. 
 3670, R. S.) 
 
 Arrangement and order of estimates are to be 
 same as appropriation acts for the preceding 
 year. Any changes therein, and transfers 
 of salaries from one office or bureau to 
 another office or bureau, or consolidation of 
 offices or bureaus desired by head of 
 department, may be indicated by note in 
 estimates. (Act June 22, 1906, sec. 4, 
 
 34 Stat., 448.) 
 
 Arrangement of estimates is to be changed, 
 under direction of the Secretary of the 
 Treasury, before submission to Congress, 
 when not in the form prescribed by act 
 June 22, 1906. (Act Mar. 4, 1909, sec. 4, 
 
 35 Stat., 907.) 
 
 Book of Estimates is to contain all estimates of 
 appropriations required for the fiscal vear 
 for^which prepared and submitted. (Act 
 June 22, 1906, sec. 4, 34 Stat., 448.) 
 
 Book of Estimates is to be prepared under the 
 direction of the Secretary of the Treasury, 
 through whom all annual estimates for the 
 public service shall be submitted to 
 Congress. (Sec. 3669, R. S.) _ 
 
 Compensation of officers is to be estimated for in 
 accordance \n.t\\ express provisions of law, 
 and not in accordance with executive dis- 
 tribution. (Sec. 3662, R. S.) 
 
 Conjectural estimates are to be distinguished 
 from such as are framed upon actual infor- 
 mation and applications from disbursing 
 officers. (Sec. 3660, R. S.) 
 
 Date and section of law, and volume and page 
 of Statutes at Large or section of the 
 Revised Statutes by which proposed ex- 
 penditures are authorized, are to be cited by 
 heads of departments in submitting esti- 
 mates to Congress. (Sec. 3660, R. _S.) 
 
 Form of estimates, and time of submission to 
 Congress, shall be as required by law, and 
 no estimates shall be submitted in any other 
 form or at any other time. (Act Aug. 23, 
 1912, sec. 9, 37 Stat., 415.) 
 
 385 
 
Sec. 430. 
 
 PL 2. REVISED STATUTES. 
 
 Navy Department. 
 
 General or lump-sum estimates are to be accom- 
 
 fianiod in certain cases by a statement in 
 5ooK of Estimates showing, in parallel col- 
 umns, number and compensation of persons 
 intended to be employed, and other ex- 
 penditures contemplated therefrom; and 
 number and compensation of persons em- 
 ployed and other expenditnres out of 
 corresponding appropriation for preceding 
 fiscal year. (Act Aug. 24, 1912, sec. 6, 37 
 Stat., 487, aa amended by act Aug. 1, 1914, 
 sec. 10, 38 Stat., CSO.) Such information 
 shall be submitted according to uniform 
 and concise methods which shall be pre- 
 scribed by the Secretary of the Trea.sur\% 
 but ^^'ith reference to estimates for pay of 
 mechanics and laborers there shall be sub- 
 mitted in detail only the ratings and trades 
 and the rates per diem paid or to be paid. 
 (Act July 1, 1916, sec. 4, 39 Stat., 336). 
 
 Na\'j' : Estimates for pay of 1 he Navy shall show 
 pay of line, staff, and retired officers, 
 amount of pay proper, longevity and for- 
 eign serAdce increases, sea pay for officers 
 on shore, total number of warrant and petty 
 officers and seamen and their pay proper 
 and longe\dty or service increases, and 
 rates of pay for all petty officers and other 
 enlisted men. (Act Mar. 3, 1909, 35 Stat., 
 754.) 
 
 Navy: Estimates for expenditures required by 
 the Navy Department for certain purposes 
 must be given in detail, including trans- 
 portation, advertising, purchase and repair 
 of machinery, traveling expenses, funeral 
 expenses, recruiting, apprehending de- 
 serters, witnesses before courts-martial 
 and coiuts of inquiry, etc. (Sec. 3666, 
 R. S.) _ 
 
 Navy pension fund: Estimates of claims and 
 demands chargeable upon and payable out 
 of Navy pension fund are to be submitted 
 annuallv to Congress by Secretary of the 
 Navy. '(Sec. 3667,_R. S.)_ 
 
 New items, or material variations in usual 
 items, are to be accompanied by explana- 
 tions in estimates. (Sec. 3664, R. S.) 
 
 Notes shall not be submitted following any esti- 
 mate other than as provided for "general or 
 lump sum" estimates (.see above) except 
 such as suggest changes in form or order of 
 arrangement of estimates and appropria- 
 tions and reasons for such changes. (Act 
 Aug. 24, 1912. sec. 6, 37 Stat., 487, as 
 amended by act Aug. 1, 1914, sec. 10, 38 
 Stat., 680.) 
 
 Official is to be designated by head of each de- 
 partment to supervise the classification and 
 compilation of all estimates to be submitted 
 by such department. Said official shall 
 have due regard for the requirements of 
 all laws respecting preparation of estimates, 
 including manner and time of their sub- 
 mission to Congress througli the Secretary 
 of the Treasury; all unnecessary words to be 
 eliminated from all such estimates. (Act 
 June 23, 1913, sec. 3, 38 Stat., 75.) An 
 ' ' estimate clerk ' ' in the Navy Department 
 is provided for in the annual legislative, 
 executive, and judicial appropriation act. 
 
 Per diem allowance.s in lieu of subsi-stence to 
 persons engaged in field work or travel on 
 
 official business may be prescribed by 
 heads of departments, and estimates of ap- 
 propriations from which paid shall specifi- 
 cally state the rates of such allowances. 
 (Act Aug. 1, 1914, sec. 13, 38 Stat., 680.) 
 
 President is to recommend reduction by Con- 
 gress in amounts estimated for, where in 
 excess of estimated revenues, if practicable 
 without undue injury to the public service; 
 or otherwise he shall recommend such loans 
 or new taxes as necessary to cover the 
 deficiencv. (Act Mar. 4, 1909, sec. 7, 
 35Stat.,i027.) 
 
 Printing and binding estimates are to be sub- 
 mitted annually by head of department (sec. 
 3661, R. S.); printing and binding estimates 
 are to be submitted to Congress in detail by 
 the Public Printer, covering all work to be 
 done under his direction (act Mar. 2, 1895, 
 sec. 1, 28 Stat., 961); printing and binding 
 estimates are to be submitted in regular an- 
 nual estimates to Congress under "Printing 
 and binding," and to include all printing 
 and binding required by each of the execu- 
 tive departments, their bureaus and offices, 
 for each fiscal year, ^vith exception of en- 
 velopes and certain articles of stationery 
 printed in the course of manufacture (act 
 June 30, 1906, sec. 2, 34 Stat., 762). 
 
 Printing and engraving for the Ilydrographic 
 Office of the Navy Department are to be 
 estimated for separately and in detail, and 
 appropriated for separately. (Act Aug. 4, 
 1886, 24 Stat., 255.) 
 
 Public works estimates are to be accompanied by 
 full plans and detailed estimates of the cost 
 of the whole work. Subsequent estimates 
 therefor shall state original estimated cost, 
 amount already appropriated and ex- 
 pended, amount required in excess of 
 original estimate, and reasons for the excess. 
 (Sec. 3663, R. S., as amended by act Feb. 
 27, 1877, 19 Stat., 249.) _ _ 
 
 Reports to Congress of certain information are 
 required to be made by heads of depart- 
 ments in the Book of Estimates. — See notes 
 to section 429, Revised Statutes. 
 
 Secretary of the Treasury: All estimates of 
 appropriations and of deficiencies in appro- 
 priations, shall be transmitted through the 
 Secretary of the Treasury, and in no other 
 manner. Secretary of the Treasury shall 
 cause same to be classified, compiled, in- 
 dexed, and printed. (Act July 7, 1884, 23 
 Stat., 254.) 
 
 Secretary of the Treasury: Estimates are to be 
 furnished Secretary of the Treasury by heads 
 of departments on or before 15th day of 
 October of each year; in case of their failure 
 to do so, he shall cause estimates to be pre- 
 pared in the Treasury Department for such 
 appropriations as in his judgment shall be 
 requisite, which estimates shall be sub- 
 mitted to Congress in the Book of Estimates. 
 (Act Mar. 3, 1901, sec. 5, 31 Stat., 1009.) 
 
 Sources from which estimates are derived shall 
 be specified by heads of departments, as 
 nearly as may be convenient, in communi- 
 cating estimates to Congress. (Sec. 3660, 
 R. S.) 
 
 Special or additional estimates are to be submit- 
 ted only under exceptional circumstances. 
 
 386 
 
Navy Department. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 431. 
 
 and shall be accompanied by full statement 
 of their imperative necessity and reasons for 
 omission in the annual estimates. (Act 
 June 22, 1906, sec. 4, 34 Stat., 448.) 
 Vehicles, passenger-carrying: Purchase and 
 maintenance of, shall be estimated for in 
 detail, specifying use for which intended, 
 etc. (Act July 16, 1914, sec. 5, 38 Stat.. 
 508.) 
 Appropriations only for one fiscalyear. — - 
 The annual appropriation acts are enacted in 
 conformity with the mandatory provisions 
 of sections 430, 3676, and 3678, Revised 
 Statutes. They always are for the service 
 of the given year for which they are esti- 
 mated and appropriated. It is undoubtedly 
 true that in the ordinary conduct of administra- 
 tion, materials and supplies properly pur- 
 chased remain unconsumed and unused at the 
 
 end of the fiscal year. This is recognized and 
 has been provided for with reference to the 
 Navfil Establishment by statute (act Mar. 2, 1889, 
 25 Stat., 817, 818). If the statutes providing 
 appropriations for a current fiscal year can re- 
 ceive the latitudinarian construction of per- 
 mitting purchases of supplies avowedly for use 
 not in that but in another and succeeding year, 
 this would do away with the force of all the 
 statutes making annual appropriations. It 
 would utterly destroy the relation between the 
 laws governing appropriations and expenditures. 
 The intentional acquisition of naval supplies 
 for consumption or use in succeeding years 
 by purchase from appropriations for a current 
 fiscal year is inconsistent vdXh. the provisions of 
 the act of March 2, 1889. (28 Op. Atty. Gen., 
 634.) 
 
 Sec. 431. [Hydrographic Ofl5ce.] There shall be a Hydrograpliic Office 
 attached to the Bureau of Navigation in the Navy Department, for the improve- 
 ment of the means for navigating safely the vessels of the Navy and of the 
 mercantile marine, by providing, under the authority of the Secretary of the 
 Navy, accurate and cheap nautical charts, sailing directions, navigators, and 
 manuals of instructions for the use of all vessels of the United States, and for 
 the benefit and use of navigators generally. — (21 June, 1866, c. 129, s. 1, v. 14, 
 p. 69.) 
 
 Amendment was made to this section bv act of 
 May 4, 1898 (30 Stat., 374), which provided 
 that the Hydrographic Office should be at- 
 tached to and made a part of the Bureau of 
 Equipment. By naval appropriation acts 
 for the fiscal years 1912, 1913, and 1914, 
 pronsions were made for the distribution 
 of the duties, funds, and employees of the 
 Bureau of Equipment among the other 
 bureaus and offices of the Naw Depart- 
 ment, and by act of June 30, 1914^(38 Stat., 
 408), the Bureau of Equipment was abol- 
 ished. Pursuant to these statutes the Hy- 
 drographic Office was again attached to the 
 Bureau of Navigation by Navy Regulations, 
 and has since been appropriated for under 
 that bureau. (See, for example, act Mar. 
 4, 1915, 38 Stat., 1026.) 
 
 Appropriations for the preparation or publica- 
 tion of forei.^n hydi-ographic surveys shall 
 only be applicable to their object upon ap- 
 proval of the Secretary of the Navy after a 
 report from three competent naval officers 
 to the effect that the original data for pro- 
 posed charts are such as to justify their pub- 
 lication. (Sec. 3686, R. S., reenacted as 
 sec. 78, act Jan. 12_, 1895, 28 Stat., 621.) 
 
 International Code of Signals, sale of to the pub- 
 lic at cost was authorized by act of March 3, 
 1901 (31 Stat., 1187, sundry civil act, print- 
 ing and binding). 
 
 Naval officers, not exceeding four, may be de- 
 tailed as necessary to the Hydrographic 
 Office by the Secretary of the Na\'y. (Act 
 Mar. 4, 1917, 39 Stat., 1172.) The Secre- 
 tary of the Navy is authorized to detail 
 such naval officers as may be necessary to 
 the Hydrographic Office" during the con- 
 
 tinuance of the present war. (Act Apr. 25, 
 1917, 40 Stat., 38.) "The Secretary of the 
 Navy is authorized to detail such naval 
 officers as may be necessary to the Hydro- 
 graphic Office. ' ' (Act July 1, 1918, 40 Stat. , 
 708.) 
 
 Personal services or other expenditures are not 
 to be authoriz' d under the Hydrographic 
 Officeat Washington, D. C, except asappro- 
 priated for under the Navy Department in 
 the annual legislative, executive, and judi- 
 cial appropriation act, or under appropria- 
 tions for the public printing and binding. 
 (See act Mar. 3, 1917, 39 Stat., 1099.) 
 
 Printing of charts, maps, notices to mariners, 
 tide tables, light lists, sailing directions, 
 bulletins, and other special publications of 
 the Hydrographic Office, may be authorized 
 by the Secretary of the Navy in such edi- 
 tions as the interests of the "Government 
 and of the public may require. (Act Jan. 
 12, 1895, sec. 89, 28 Stat., 622.) 
 
 Printing and engraving for the Hydrographic 
 Office are to he estimated for separately and 
 in detail, and appropriated for separately. 
 (Act Aug. 4, 1886, 24 Stat., 255.) 
 
 Weather Bureau shall continue fiu-nishing 
 meteorological information to the Hydro- 
 graphic Office for use in preparation of 
 Pilot Charts; and said charts shall have 
 conspicuously printed thereon: "Prepared 
 from data furnished by the Hydrographic 
 Office of the NaA^ Department and by the 
 Weather Bureau of the Department of 
 Agriculture, and publL-^^hed at the Hydro- 
 graphic Office under the authority of the 
 Secretary of the Navy." (Act June 17, 
 1910, 36 Stat., 508.) 
 
 387 
 
Sec. 431. 
 
 Pi. J. REVISED STATUTES. 
 
 Navy Department. 
 
 General duties of Hydrograpliic Office. — 
 
 The work of the llydroj^raphic OHkt' comprises 
 the making, revision, correction, and issue of 
 charts and sailiufi; directions for all parts of the 
 world, including? monthly Pilot Charts of the 
 North Atlantic and Pacific Oceans; compila- 
 tion, printinj,', and issue of weekly and other 
 periodical notices to mariners; re\dsion and 
 issue of navigation tables; supervision of ocean 
 and lake surveys, and the direction and su- 
 porvL^ion of branch hydropraphic offices and 
 sales agencies, distributed among the principal 
 sea and lake ports of the country. (File 24501- 
 26:1, Jan. 25, 1912.) 
 
 The work of the Hydrographic Office ever 
 since its inception has been directed to improv- 
 ing the means for navigating safely the vessels 
 of the Naxy and the Mercantile Marine by pro- 
 ducing accurate and cheap nautical charts, 
 books, numuals, and such secondary publica- 
 tions as would be of service to navigators and 
 the maritime world as the organic law (sees. 
 431-433, R. S.) requires. (File 24501-22, Dec. 
 29, 1910.) 
 
 It is the opinion of the Na\^ Department that 
 the work of the Hydrographic Office merits the 
 heartiest confidence and support; also that 
 there should be no reduction in the branch 
 hydrographic offices, as they are important 
 feeders or nautical information required by the 
 main office. (File 24501-22, Dec. 29, 1910.) 
 
 Pilot Charts. — The Pilot Chart grew into 
 being as the result of the labors and research of 
 Lieut. Maury. The Navy of the United States 
 was the pioneer in publishing work of this kind. 
 Neither its usefulness nor its accuracy has ever 
 been questioned. It is kno^vn throughout the 
 world as being published by the Hydrographic 
 Office. (Ann. Kept, of Hydrographic Office, 
 1910.) 
 
 Between 1844 and 1861 there were compiled 
 and issued under the Navy Department, 
 "Maury's Wind and Current Charts," upon 
 which the present Pilot Charts are fotmcled. 
 (File 24501-19, Aug. 2, 1910.) 
 
 The Pilot Charts have been published since 
 1883 by the Hydrographic Office of the NaA'y 
 Department imder the provisions of eections 431 
 and 432, Revised Statutes. (File 24501-19, 
 Aug. 3, 1910.) 
 
 These charts contain information concerning 
 the North Atlantic, South Atlantic, North 
 Pacific, South Pacific, and Indian Oceans. 
 They are invaluable for the purposes of the 
 Na\'y and almost indispensable to navigators of 
 merchant vessels. They include the prevailing 
 winds, as shown by averat^es collected for the 
 past 10 years, the best sailing routes for vessels 
 in view of these prevailing winds, meteoro- 
 logical conditions that may be expected in the 
 various portions of the ocean, ancl a number of 
 other matters of great interest to the mariner. 
 (File 24501-19, Aug. 3, 1910.) 
 
 The Pilot Chart shows graphically naviga- 
 tional features (magnetic variation, currents, 
 sail and steam ship tracks, etc.), and meteoro- 
 logical data. (File 24501-24, Mar. 8, 1911.) 
 
 The Pilot Charts constitute an essential link 
 between the Hydrographic Office and the ship- 
 masters of all nations, whereby important 
 hydrographic and navigational reports are con- 
 
 sUuitly and promptly acquired for use on the 
 other navigational charts and nautical books 
 which the Hydrographer is charged with pre- 
 paring and keeping corrected up to date. The 
 JPilot Charts were designed and developed to 
 insure the Hydrographic Office obtaining the 
 various data shown upon the printed sheet en- 
 titled "Utilization of Marine Data." (File 
 24501-24, Mar. 8, 1911.) 
 
 Data furnished by Weather Bureau.— 
 The meteorological data for the Pilot Chart have 
 been supplied to the Hydrographic Office by 
 the Weather Bureau since 1905. Prior to that 
 time the meteorological data shown on Pilot 
 Charts were obtained by the Hydro^aphic 
 Office, but in accordance with the decision of 
 the Interdepartmental Board in 1904 the work 
 of collecting such data was transferred to the 
 Weather Bureau. The data other than meteoro- 
 logical incorporated in the Pilot Chart are fur- 
 nished by observers in all parts of the world in 
 return for the finished charts and requires 
 nautical experience for its proper arrangement 
 on the chart. (File 24501-19, Aug. 3, 1910.) 
 
 Duplication of work.— In 1909 the Weather 
 Bureau began to publish the Ocean Meteor- 
 ological charts, containing information practi- 
 cally the same as is furnished by the Pilot 
 Charts of the Na\'y Department. By the act 
 of June 17, 1910 [above cited], the Hydrographic 
 Office has charge of the publication of Pilot 
 Charts, making the proper acknowledgment to 
 the Weather Bureau for the meteorological 
 data secured. Although not definitely stated, 
 this provision would seem to imply the neces- 
 sary abandonment of the duplication of the 
 work in the publication of the Ocean Meteor- 
 ological Charts by the Weather Bureau. This, 
 however, was not the case, the Chief of the 
 Weather Bureau continuing, after the act men- 
 tioned, to publish the meteorological chart and 
 in fact to extend its operation by collecting cer- 
 tain data also collected by the Hydrographic 
 Office, this undoubtedly contrary to the in- 
 tent of Congress and certainly contrary to the 
 spirit of the above provision of law. (File 
 24501-19, Aug. 3, 1910.) 
 
 There is no question that this work should be 
 performed by one department alone. It is so 
 essential to the future welfare of the Navy, and 
 necessarily requires such technical supervision 
 as can only be given by a trained mariner, that 
 the Secretary of the Navy feels sure that the 
 work should be done by the Navy Department, 
 and that this is the view of practically all the 
 marine associations throughout the United 
 States. When it was rumored that Congress 
 might possibly abolish the Pilot Charts of the 
 Na\"y Department, that department received 
 countless letters of protest and offers of assist- 
 ance to retain the publication of the Pilot 
 Charts in the Hydrographic Office. (File 
 24501-19, Aug. 3, 1910.) 
 
 Jurisdiction, Hydrographic Office and 
 Weather Bureau. — By agreement between 
 the Navy Department and the Department of 
 Agriculture, relative to the work of the Hydro- 
 graphic Office and the Weather Bureai', it was 
 decided : 
 
 "(a) That the Weather Bureau discontinue 
 the Ocean and Lake Meteorological Charts; 
 
 388 
 
Navy Department. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 431. 
 
 "(b) That the Hydrographic Office continue 
 the publication of the Pilot Charts; 
 
 "(c) That the Weather Bureau continue the 
 control of ocean meteorology, eo far as concerns 
 the collection of meteorological observations 
 and their compilation and the use of such obser- 
 vations in research work; 
 
 "(d) That the Hydrographic Office continue 
 the distribution of the Pilot Charts at its main 
 office and branch offices; and that it furnish all 
 marine obser^•ers taking observations for the 
 Weather Bureau, and all regular Weather Bu- 
 reau coast stations, necessary copies of the 
 issues of the several Pilot Charts. 
 
 "(e) That the Weather Bureau furnish all 
 meteorological data necessary to the preparation 
 of the Pilot Charts, and in such forms as may be 
 mutually agreed upon between the two offices, 
 in accordance with existing law; 
 
 "(f) That the Hydrographic Office give the 
 Weather Bureau due credit on the Pilot Chart 
 for the data thus published, as required bv 
 law." (File 24501-31, Aug. 14, 1913.) 
 
 Miscellaneous. — The fact that sections 431- 
 433, Revised Statutes, require certain publica- 
 tions to be prepared at the Hydrographic Office 
 in the interest of the Navy "and the Mercantile 
 Marine," gives private citizens, having to do 
 with shipping, interest in the proper conduct of 
 that office. So far as the NaAy Department can 
 learn, the Hydrographic Office merits and has 
 received from the whole maritime community 
 only praise for its work, which so vitally con- 
 cerns the welfare of our fleet at sea and the safe 
 carriage of our goods in mercantile bottoms. 
 (File 24501-22, Dec. 29, 1910.) 
 
 As to the naval service, the charts, books, and 
 other publications of the Hydrographic Office 
 are requii'ed by the Navy because our fleet 
 could not safely and expeditiously na\'igate the 
 high seas and foreign coasts without them. 
 (File 24501-22, Dec. 29, 1910.) 
 
 The fleet is dependent upon the Hydrographic 
 Office for its charts and sailing directions. (File 
 24.501-23, Jan. 31, 1911). 
 
 The supply of charts, sailing directions, and 
 current nautical information is indispensable 
 to the seagoing ships, and becomes more and 
 more important with the great increase in the 
 size, value, and speed of vessels in the last few 
 years. Besides the Navy, the work of our 
 Hydrographic Office is invaluable to the mer- 
 chant maiine. domestic and foreign, and its 
 charts and publications have hitherto enjoyed 
 a world-wide reputation for being second' to 
 none in accuracy, scope, reliability, and 
 promptness of issue — the last item being of 
 equal value with accuracy. (File 24501-26:1, 
 Jan. 25, 1912.) 
 
 Tlie Navy Department is endeavoring to 
 reduce the number of foreign charts used in 
 our ships, and the Hydrographic Office will 
 ultimately produce all charts needed if the 
 requisite money can be secured. This is nec- 
 essary because m time of war the foreign supply 
 would cease. (File 24501-23, Jan. 31, 1911.) 
 
 At all times, from its inception, the Hydro- 
 graphic Office has been in charge of and oper- 
 ated by naval officers. This is clearly neces- 
 sary, as the work of the office requires naval as 
 well as scientific and nautical knowledge; and 
 
 furthermore, the hydrographer and his assist- 
 ants should not only have such knowledge, but 
 be capable of administering the activities of 
 the office. In addition, the Navy benefits by 
 the experience its officers get in the Hydro- 
 graphic Office, as their intimate association 
 with the preparation and issue of charts, sailing 
 directions, and navigational works fits them the 
 better to perform their navigational duties at 
 sea. (File 24501-16, Apr. 19, 1910.) 
 
 Naval officers have the practical training 
 essential to the superAdsion of the work of the 
 Hydrograjihic Office, and it goes without saying 
 that they have a greater interest in, and a larger 
 feeling of responsibility for, the accuracy of the 
 work than would civilians, whom it is impossi- 
 ble to secure with the proper ability to super- 
 vise the technical work involved. (File 
 24501-23, Jan. 31, 1911.) 
 
 The preparation of the charts, books, and 
 other publications of the Hydrographic Office 
 could not be intrusted to a nonnavigational 
 bureau, l)ut should be continued in the hands 
 of capable and trained naval officers, familiar 
 with the requirements of the navigator and the 
 practical use of these publications. Such has 
 been the custom with us, and such is the un- 
 varjdng practice under foreign Governments, 
 for it is well recognized that any other course 
 might jeopardize an important element of 
 national defense. (File 24501-22, Dec. 29, 
 1910.) 
 
 Legislation restricting the number of naval 
 officers who may be detailed to the Hydro- 
 graphic Office, although contained in an annual 
 appropriation act, is in effect perpetual and is 
 the law until repealed, such provision not 
 being expressly or otherwise limited in its 
 operation to any particular period of time. 
 (File 24501-26, July 11, 1911. But see act of 
 July 1, 1918, 40 Stat., 708, which removes lim- 
 itation upon number of naval officers detailed 
 to Hydrographic Office.) 
 
 See note to section 434, Revised Statutes, as 
 to proposed consolidation of Hydrographic 
 Office and Naval Observatory. 
 
 An officer of the Navy is not entitled 
 to the salary of a draftsman in the Hydro- 
 graphic Office in addition to his own, though he 
 hold both offices. The office of draftsman in 
 the Hydrographic Office is incompatible with 
 that of ca^et engineer [now abolished]. The 
 Secretary of the Na\'y may detail an engineer 
 for service in the Hydrographic Office, but the 
 detail will not entitle the officer to additional 
 pay. \Miere two incompatible offices are held 
 by the same person, to which are attached differ- 
 ent salaries, he is entitled to the larger. (Win- 
 chell V. U. S., 28 Ct. Cls., 30. In this case the 
 officer was erroneously discharged fi'om the 
 Na\'y', and thereafter appointed to a ci\dl posi- 
 tion "in the Hydrographic Office. When later 
 restored to the Navy, he sought to recover the 
 pay of both offices. See also 5 Comp. Dec, 
 88o.) 
 
 The purchase of supplies for the Hydro- 
 gi-aphic Office is governed by the laws relating 
 to the purchase of supplies and contracts for sup- 
 plies "^for any of the departments of the Govern- 
 ment." (21 Op. Atty. Gen., 59.) 
 
 389 
 
Sec. 434. 
 
 PL 2. REVISED STATUTES. 
 
 Navy Department. 
 
 Sec. 432. [Maps, charts, etc.] The Secretary of the Navy is authorized 
 to cause to be prepared, at the Hydrographic Ofiice attached to the Bureau 
 of Navigation in the Navy Department, maps, charts, and nautical books 
 relating to and required in navigation, and to publish and furnish them to 
 navigators at the cost of printing and paper, and to purchase the plates and 
 copyrights of such existing maps, charts, navigators, saihng directions and 
 instructions, as he may consider necessary, and when he may deem it expedient 
 to do so, and under such regulations and instructions as he may prescribe. — 
 (21 June, 1866, c. 129, s. 2, v. 14, p. 69.) 
 
 See note to section 431, llevised Statutes. 
 
 This section was reenacted by act of January 12, 
 1895, section 77 (28 Stat., 621), as follows: 
 "The Secretary of the Na\^ is authorized 
 to cause to be prepared at the Hydro- 
 graphic Office attached to the Bureau of 
 Navigation, in the Navy Department, 
 maps, charts, and nautical books relating 
 to and required in navigation, and to pub- 
 
 lish and furnish them to navigators at tlie 
 cost of printing and paper, and to purchase 
 the plates and copyiights of such existing 
 maps, charts, navigators' sailing directions 
 and instructions as he may consider neces- 
 sary and when he may deem it expedient 
 to do so, and under such regulations and 
 instructions as he may prescribe." 
 
 Sec. 433. [Money received from sale of maps, charts, etc.] All moneys 
 which may be received from the sale of maps, charts, and nautical books shall 
 be returned by the Secretary of the Navy into the Treasury of the United 
 States, to be used in the further preparation and publication of maps, charts, 
 navigators, sailing directions, and instructions for the use of seamen, to be sold 
 at the rates as set forth in the preceding section. — (21 June, 1866, c. 129, s. 3, 
 V. 14, p. 69.) 
 
 See note to section 431, Revised Statutes. 
 
 This section was reenacted by act of January 12, 
 1895, section 77 (28 Stat., 621), as follows: 
 "All moneys which may be received from 
 the sale of maps, charts, and nautical books 
 shall be paid by the Secretary of the Navy 
 into the Treasury of the United States, to 
 be used in the further preparation and pub 
 
 lication of maps, charts, 
 
 navigators 
 
 sailing 
 
 directions, and instructions for the use of 
 seamen, to be sold at the cost of printing 
 and paper." 
 It was amended by act of May 29, 1920 (41 
 Stat., 665), which provided that receipts 
 from sales of publications "shall be cov- 
 ered into the Treasury of the United States 
 as miscellaneous receipts." 
 
 Sec. 434. [Naval Observatory.] The officer of the Navy employed as super- 
 intendent of the Naval Observatory at Washington shall be entitled to receive 
 the shore-duty pay of his grade, and no other. — (3 Mar., 1865, c. 114, v. 13, p. 
 533.) 
 
 American Ephemeris and Nautical Almanac: 
 Publication of, by the Naval Observatory, is 
 authorized by Article 1-604 (3 a). Naval 
 Instructions, 1913. Assignment of a pro- 
 fessor of mathematics to duty at the Naval 
 Observatory in charge of the Nautical Al- 
 manac is provided for by Article R-3111, 
 Navy Regulations, 1913. (See sec. 436, 
 R. S.) 
 
 Appointment or detail to office of astronomical 
 director, director of the Nautical Almanac, 
 astronomer, or assistant astronomer may be 
 made upon recommendation of the Board of 
 Visitors to the Naval Observatory. (Act 
 Mar. 3, 1901, 31 Stat., 1122.) 
 
 Board of Visitors to the Naval Observatory is to 
 be appointed by the President, by and with 
 the adA-ice and consent of the Senate, for a 
 
 period of three years without compensation 
 other than actual expenses; four members 
 to be astronomers of high professional stand- 
 ing and two members eminent citizens of 
 the United States. (Act Mar. 8, 1901, 31 
 Stat., 1122.) 
 
 Library of Naval Observatory may have books 
 for its exclusive use bound in half Turkey 
 or material no more expensive. (Act Jan. 
 12, 1895, sec. 86, 28 Stat., 622.) 
 
 01)servatory Circle: No street, avenue, or pub- 
 lic thoroughfare shall extend within the 
 area of a circle described with a radius of 
 1,000 feet from the center of the building 
 known as the clock room of the observatory. 
 (Res., Aug. ] , 1894, 28 Stat., 588.) 
 
 Printing authorized of 1,800 additional copies 
 of the Observations of the Naval Observa- 
 
 390 
 
Navy Department. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 436. 
 
 tory, of which 800 shall be for distribution 
 
 by the Naval Observatory, and the re- 
 mainder for the Senate and House; arid 
 
 of the astronomical appendixes to said 
 
 observations, 1,200 separate copies, and 
 
 of the meteorological and magnetic ob- 
 
 serA-ations, 1,000 copies, shall be printed for 
 
 distribution by the Naval Observatory. 
 
 (Act Jan. 12, 1895, sec. 73, 28 Stat., 613.) 
 Professors of mathematics shall perform such 
 
 duties at the Naval Observatory as may be 
 
 assigned them by order of the Secretary of 
 
 the Navy. (Sec. 1401, R. S.) 
 Public Printer shall fiu-nish one bound copy of 
 
 the Congressional Record gratuitously to 
 
 the Naval Observatory. (Act Jan. 12,1895, 
 
 sec. 73, 28 Stat., 617.) 
 Regulations prescribing scope of astronomical 
 
 and other researches of the Observatory and 
 
 duties of its staff shall be prepared and sub- 
 mitted to the Secretary of the Navy by the 
 
 Board of Visitors. (Act Mar. 3, 1901, 31 
 
 Stat., 1122.) 
 Report to the Secretary of the NaA^y shall be 
 
 made at least once each year by the Board 
 
 of Visitors respecting condition of build- 
 ings, instruments, apparatus, efficiency, 
 
 and expenditures of the observatory 
 
 (Act Mar. 3, 1901, 31 Stat., 1122.) 
 
 Scientific investigators and students of certain 
 educational institutions shall be afforded 
 the facilities of the Naval Observatory for 
 research and illustration, under such re- 
 strictions as the officers in charge may pre- 
 scribe. (Res., Apr. 12, 1892, 27 Stat., 395.) 
 They shall similarly be afforded facilities 
 for study and research in the Government 
 departments under such restrictions as 
 heads of departments may prescribe. 
 (Act Mar. 3, 1901, 31 Stat., 1039.) 
 
 Superintendent of the Naval Observatory shall 
 be a line officer of the Navy not below the 
 rank of captain. (Act Mar. 3, 1901, 31 
 Stat., 1122.) 
 
 A superintendent of the Naval Observa- 
 tory, "who shall be either a captain, com- 
 mander, or lieutenant in the Navy," at a 
 salary of $3,000 per annum, was authorized by 
 act of March 3, 1847 (9 Stat., 169), as amended 
 by act of Aug. 3, 1848 (9 Stat., 266). 
 
 This provision as to the rank of the super- 
 intendent was repealed by act of March 3, 1865 
 (13 Stat., 533), which act further provided that 
 ,'no officer of the Navy employed as super- 
 
 Sec. 435. [Meridians. Repealed.] 
 
 This section provided as follows: 
 
 "Sec._485. The meridian of the Observatory 
 at Washington shall be adopted and used as the 
 American meridian for all astronomical pur- 
 poses, and the meridian of Greenwich shall be 
 
 Sec. 436. [Nautical Almanac] The Secretary of the Navy may place the 
 supervision of the Nautical Almanac in charge of any officer or professor of 
 mathematics in the Navy who is competent for that service. Such officer or 
 professor, when so employed, shall be entitled to receive the shore-duty pay 
 of his grade, and no other.— (3 Mar., 1857, c. Ill, s. 3, v. 11, p. 246.) 
 
 intendent shall receive other than the shore 
 duty pay of his grade." 
 
 The superintendent should be carefully 
 selected with reference to special fitness, 
 and there can be no doubt that there can al- 
 ways be found officers in the Navy competent 
 to administer this institution, which had its 
 beginnings through the ability and zeal of naval 
 officers, as also its rise to high eminence. Dis- 
 tinction in astronomy does not by any means 
 go to show that its possessor will be a good ad- 
 ministrator. The most eminent astronomer that 
 France has produced was an utter failure in the 
 administration of the National Observatory at 
 Paris, and was succeeded by an admiral of the 
 Navy, under whose direction it was excellently 
 administered. (File 5331, Sept. 7, 1894.) 
 
 The regular work of the Naval Observa- 
 tory is essential to the Navy; it can be sys- 
 tematically and successfully accomplished only 
 under Government control; and no portion of 
 it should be discontinued or transferred to other 
 than the control of the Navy Department. The 
 observations made in addition to those neces- 
 sary for the regular work are of more interest to 
 astronomers, do not interfere with the regular 
 work, and should be continued. (File 15924, 
 Apr. 3, 1903.) 
 
 Both the Naval Observatory and the 
 Hydrographic OfiB.ce are employed in supply- 
 ing the fleet with na\'igation equipment, both 
 are concerned in the instruction of navigators; 
 the Hydrographic Office controls the marine 
 survejdng parties, yet the Observatory provides 
 and attends to the repairing of instruments for 
 them, instructs surveying officers in the use 
 of astronomical instruments^ and cooperates 
 with them in the determination of longitudes. 
 In numerous ways the two institutions have 
 unity of interests and should harmonize and 
 strengthen each other imder one management. 
 (File 26509-97, Feb. 4, 1913, recommending 
 legislation "for consolidating the activities of 
 the Naval Observatory and Hydrographic Of- 
 fice." See sec. 431, R. S., for law relating to 
 Hydrographic Office.) 
 
 The Naval Observatory is a naval sta- 
 tion, and the Superintendent of the Naval 
 Observatory is the commandant of a naval sta- 
 tion within the meaning of the act of Janu- 
 ary 25, 1895 (28 Stat., 639), "authorizing cer- 
 tain officers of the Navy and Marine Corps to 
 administer oaths, " as amended by the act of 
 March 3, 1909 (31 Stat., 1086). (File 19037-45, 
 May 26, 1914.) 
 
 adopted for all nautical purposes." — 28 Sept., 
 1850, c. 80, s. 1, V. 9, p. 515. 
 It was repealed bv act of August 22, 1912 
 
 (37 Stat., 342). 
 
 391 
 
Sec. 436. 
 
 PL 2. REVISED STATUTES. 
 
 Navy Department. 
 
 Assignmoiit of a profossor of matheinatii-s to 
 duty at the >iaval Observatory in cliarge 
 of Xho Nautiral Alinanar, is provided for 
 by Article R-:il 1 1 . Navy Hogulations, 1913. 
 Director of the Nautical Almanac may be rec- 
 ommended for appointment by the Board 
 of \'isitors to the Naval Observatory. (Act 
 Mar. 3, 1901. 31 Stat., 1122.) 
 Employees of Nautical Almanac Office whose 
 ser\-ices can be spared from duty of pre- 
 paring for publication the annual volumes 
 of the American Ephemeris and Nautical 
 Almanac, may be employed by said office 
 in duty of improving the tables of the 
 planet.s, moon, and stars, to be used in 
 preparing for publication the annual vol- 
 umes of the office. (Act Aug. 22, 1912, 37 
 Stat., 342.) 
 Exchange of data with foreign almanac offices 
 may be arranged for by the Secretary of the 
 Na^^, any such arrangement to be termin- 
 able on one year's notice; the work of the 
 Nautical Almanac Office to be so conducted 
 that in case of emergency the entire portion 
 of the work intended for the use of na^'iga- 
 tors may be computed by it, without for- 
 eign cooperation. (Act Aug. 22, 1912, 37 
 Stat., 342.) 
 Printing is authorized of 1,500 cof>ies of Ephem- 
 eris and Nautical Almanac, in addition to 
 the "usual number" — 500 copies to be for 
 use of Senate and House, and 1,000 copies 
 for distribution or sale by the Navy De- 
 partment (act Jan. 12, 1895, sec. 73, 28 
 Stat., 613). "Usual number" of American 
 Ephemeris and Nautical Almanac is not to 
 be printed; in lieu thereof, 1,100 copies of 
 same shall be printed and bound, uniform 
 ^vith the editions printed for the Navy De- 
 partment — 500 copies for Senate and House 
 and 600 for Superintendent of Documents 
 for distribution to State and Territorial li- 
 braries and designated depositories (res., 
 May 13, 1902, 32 Stat., 740); 2,500 copies of 
 American Ephemeris and Nautical Al- 
 manac are to be pu]:>lished — 1,500 copies for 
 the Senate and House and 1,000 for dis- 
 tribution or sale by the Navy Department 
 (act July 1, 1902, 32 Stat. , 678). Secretary 
 of the Navy is authorized to have additional 
 copies of the Ephemeris and of the Nautical 
 Almanacs extracted therefrom, printed for 
 the public service and for sale to navigators 
 and others. All moneys received from 
 sale of the Ephemeris and of the Nautical 
 Almanacs shall be deposited in the Treas- 
 ury and placed to the credit of the general 
 fund for public printing (act Jan. 12, 
 1895, sec. 73, 28 Stat., 613). 
 Professor of Mathematics, corps shall cease to 
 exist: See note to section 1399, Revised 
 Statutes. 
 The first statute relating to the Nautical 
 Almanac was ihe act of March 3, 1849 (9 Stat., 
 375), providing that "a competent officer of 
 the Navy, not below the grade of lieutenant, 
 be charged with the duty of preparing the 
 Nautical Almanac for publication." 
 
 By act of August 5, 1854 (10 Stat., 583), it was 
 provided that "any naval officer who may be 
 charged with the preparation, superintendence, 
 or publication of the Nautical Almanac, shall 
 
 receive no compensation for such duty beyond 
 what he would receive while on duty at sea." 
 Further provisions on the subject were con- 
 tained in the act of March 3, 1857, upon which 
 the above section of the Revised Statutes is 
 ba.«od . 
 
 Nautical Almanac Office a department 
 of the Naval Observatory. — The Regulations 
 of the United States Naval Observatory, ap- 
 proved by the Secretory of the Navy January 
 25, 1904, provide in partasfollows: "TheNaval 
 Observatory, under the control of the Secretary 
 of the Navy, is subject to the direct supervision 
 of the Bureau of Equipment [now Bureau of 
 Navigation], Navy Department, and shall be 
 governed in accordance with the U. S. Navy 
 Regulations relating to the general admin- 
 istration of shore stations where applicable" 
 (par. 1); "the observatory work shall be divided 
 into two branches, astronomical and nautical. 
 The first shall include * * * the depart- 
 ment of the Nautical Almanac " (par. 3); "there 
 shall be * * * a director of the Nautical 
 Almanac * * *" (par. 5); "the Superin- 
 tendent of the Naval Observatory * * * 
 shall exercise entire control over every depart- 
 ment of the observatory * * *" (par. 7); 
 "he [the superintendent of the observatory] 
 shall have charge of and be responsible for the 
 direction, scope, character, quantity, and 
 preparation for publication of all work which 
 IS performed at the Naval Observatory * * *" 
 (par. 9) ; " the director of the Nautical Almanac 
 shall be held directly responsible to the super- 
 intendent for the preparation and publication 
 of the Nautical Almanac and Ephemorides for 
 use of naval vessels, merchant vessels, and for 
 astronomical purposes, as provided for by law 
 and the regulations and orders of the Navy 
 Department" (par. 17). These regulations and 
 others in line therewith, which make the Nauti- 
 cal Almanac Office a department of the observ- 
 atory, and place the supervision thereof in 
 charge of the superintendent of that institution, 
 the department regards as within its power to 
 prescribe under the authority conferred upon the 
 Secretary of the Navy by sees. 419 and 436 of 
 the Revised Statutes, relating, respectively, to 
 the distribution of the business of the Navy 
 Department and the superintendence of the 
 Nautical Almanac. The fact that the Nautical 
 Almanac Office is appropriated for separately 
 in the annual legislative, executive, and judi- 
 cial appropriation act does not, it is believed, 
 constitute it a separate shore station, and its 
 treatment as such would appear to be incom- 
 patible with its status as fixed by the regulations 
 above mentioned. It may be added that the 
 department's recent order, gi^^ng the present 
 superintendent of the observatory, as such, 
 "charge of the supervision of the Nautical 
 Almanac," establishes his authority in matters 
 pertaining to that work independently of the 
 regulations cited. (File 9449-04, Jan. 19, 1905.) 
 
 The fact that the Nautical Almanac was in- 
 tended to become an integral part of the Naval 
 Observatory is established Ijy the regulations 
 issued by the Secretary of the Navy, Septem- 
 ber 20, 1894, and by those approved January 
 25, 1904. There is no question that in the early 
 days of the existence of the Nautical Almanac 
 it was recognized as quite distinct and separate 
 
 392 
 
Navy Department. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 436. 
 
 from the Naval Observatory, l)ut the removal of 
 that office to the Observatory buildings and the 
 issuance of regulations making it a liranch of 
 the Naval Observ^atory soon after such removal, 
 changed it to a department of the Naval Obser- 
 vatory. (File 17626, and 9449-04, March 18, 
 1904, letter of Superintendent of the Naval Ob- 
 servatory.) 
 
 The fact that the appropriations for the Naval 
 Observatory and the Nautical Almanac Office 
 ha^•e continued since the amalgamation of the 
 two departments in 1894, to be provided for 
 separately has caused some question in dealing 
 with other departments of the Government, 
 in view of which the recommendation of the 
 Superintendent of the Naval Observ^atory as to 
 change in the appropriations to conform to the 
 existing regulations was approved by the Sec- 
 retary of the Navy. (File 18168-25, and 
 9449-04, Dec. 2, 1904; and 17279-3, May 11, 
 1905.) 
 
 The Na\'y Department has estalslished the 
 Nautical Almanac as a department of the Naval 
 Obsers'atory, and appointed the Superintend- 
 ent of the Naval Observ'atory as super\'isor of 
 the Nautical Almanac in accordance with sec- 
 tion 436 , Revised Statutes . There seems , there- 
 fore, no warrant for styling the head of the de- 
 partment of the Nautical Almanac as the "Di- 
 rector of the Nautical Almanac." (File 17279- 
 3, May 11, 1905, letter of Superintendent of the 
 Naval Obser\-atory.) 
 
 The Director of the Nautical Almanac in- 
 vited attention to the fact that the Na\'y Regis- 
 ter of January, 1904, did not, as did those for 
 the preceding 17 years, make mention of the 
 Nautical Almanac Office as a separate shore sta- 
 tion, and to the fact that his "present duty" 
 was given in that Register as "Naval Observa- 
 tory" instead of, asformerly, '• Director Nautical 
 Almanac," and requested that in subsequent 
 issues of the Navy Register the Nautical Al- 
 manac Office be restored to its former status: 
 
 Held, That the Navy Register, in the particu- 
 lars mentioned, is not regarded as in error, 
 and the department is therefore constrained to 
 deny the request that in subsequent issues the 
 changes suggested be made. (File 9449-04, 
 and 17626. Jan. 19, 1905.) 
 
 Supervision of Nautical Almanac can 
 not be limited to line officers.— A regulation 
 providing that "a line officer not below the rank 
 of captain shall be assigned by the Secretary of 
 the Navy as superintendent of the Naval Ob- 
 servatory," and that "in his charge shall also 
 be placed the supervision of the Na.utical 
 Almanac, " in so far as the latter portion thereof 
 is concerned, would be illegal, as it would place 
 upon the_ super\dsion of the Nautical Almanac 
 a restriction not prescribed by law, to wit, that 
 it should be under "a line officer not below the 
 rank of captain," whereas the law (sec. 436, 
 R. S.) leaves the super\ision of the publication 
 open to "a»y officer or professor of mathematics 
 in the Navy who is competent for that service . ' ' 
 (File 1112-04, Feb. 12, 1904; 17279-2, Feb. 13, 
 1904; see also note to sec. 161, R. S.) 
 
 A nautical almanac is well known to be 
 a book. It is a "nautical book" of the sort 
 mentioned in section 432 of the Revised Stat- 
 utes. The machinery' by which the Secretary 
 is authorized from year to year to have this 
 book made is to be found in section 3661 of the 
 Revised Statutes in connection with annual re- 
 ports by and appropriations for that officer. 
 By this pro\'ision the Secretary is to submit to 
 Congress an estimate ' ' for printing and binding 
 to be executed under the direction of the Con- 
 gressional Printer." Accordingly, held, that 
 the printing and binding at tfie Government 
 Printing Office of the book called "The Amer- 
 ican Ephemeris and Nautical Almanac " for the 
 Na\'y Department, are within the appropria- 
 tion made for printing and binding for that 
 department, and accordinglv are authorized b> 
 law. (16 Op. Atty. Gen., 127.) 
 
 393 
 
TITLE XL 
 THE DEPARTMENT OF THE INTERIOR. 
 
 Sec. 
 437. 
 
 441. 
 442. 
 470. 
 
 Establishment of Department of the In- 
 terior. 
 Duties of Secretary. 
 Duties concerning territories. 
 Commissioner of Pensions. 
 
 Sec. 
 471. 
 512. 
 513. 
 514. 
 515. 
 
 Duties of Commissioner. 
 
 Retiu"ns Office. 
 
 Clerk to file returns. 
 
 Indexes. 
 
 Copies of returns. 
 
 Sec. 437. [Establishmeiit of Departmenc of the Interior.] There shall be at 
 the seat of Government an Executive Department to be known as the Depart- 
 ment of the Interior, and a Secretary of the Interior, who shall be the head 
 thereof.— (3 Mar., 1849, c. 108, s. 1, v. 9, p. 395.) 
 
 Origin and growth of executive departments — see note to section 158 Revised Statutes, 
 
 Sec. 441. [Duties of Secretary.] The Secretary of the Interior is charged 
 wi th the supervision of pubhc business relating to the following subj ects ; * * * 
 
 Second. The public lands, including mines. 
 
 Third. The Indians. 
 
 Fourth. Pensions and bounty-lands. 
 
 Fifth. Patents for inventions. * * * 
 
 Seventh. Education. 
 
 Eighth. Government Hospital for the Insane. 
 
 Ninth. Columbia Asylum for the Deaf and Dmnb. — (3 Mar., 1849, c. 108, 
 ss. 3, 5, 6, 7, 8, 9, v. 9, p. 395; 8 July, 1870, c. 230, s. 1, v. 16, p. 198; 5 Feb., 
 1859, c. 22, s. 1, T. 11, p. 379; 20 July, 1868, c. 176, s. 1, v. 15, pp. 92, 106; 
 Maguire v. Tyler, 1 Bl., 195.) 
 
 Govermnent Hospital for the Insane. — 
 
 The designation of this institution was changed 
 to "Saint Elizabeths Hospital " by act of July 
 
 1, 1916 (39 Stat., 309). See sections 4838- 
 4843, Revised Statutes, and notes thereto. 
 
 Sec. 442. [Duties concerning Territories.] The Secretary of the Interior 
 shall hereafter exercise all the powers and perform all the duties in relation to 
 the Territories of the United States that were, prior to March first, eighteen 
 himdred and seventy-three, by law or by custom exercised and performed 
 by the Secretary of State.— (1 Mar., 1873, c. 217, v. 17, p. 484.) 
 
 Guam and Samoa. — On and after June 1, 
 1907, all official communications from and to 
 executive officers of the Territories and terri- 
 torial possessions, including Samoa and Guam, 
 shall be transmitted through the Secretary of 
 the Interior in such manner and under such 
 regulations as he may prescribe. (Exec. 0., 
 May 11, 1907.) 
 
 It will be entirely satisfactory to the Interior 
 Department to receive copies of the official 
 
 reports relative to Guam and Samoa instead of 
 the originals direct. (File 21393-26, June 4, 
 1907.) 
 
 The governors of Guam and of Tutuila, 
 Samoa, are directed to forward all reports, etc., 
 relating to territorial matters, as distinguished 
 from matters of purely naval administration, to 
 the Navy Department in duplicate in order that 
 one copy may be forwarded to the Secretary 
 of the Interior. (File 21393-26, June 6, 1907.) 
 
 54641°— 22- 
 
 -26 
 
 395 
 
Sec. 471. 
 
 PL 2. REVISED STATUTES. 
 
 Interior Department. 
 
 Sec. 470. [Commissioner of Pensions.] There shall be in the Department 
 of the Interior a Commissioner of Pensions, who shall be appointed by the 
 President, by and with the advice and consent of the Senate, and shall be en- 
 titled to receive a salary of four thousand dollars a 3^ear. — (2 Mar., 1833, c. 54, 
 s. 1, V. 4, pp. 619, 622; 3 Mar., 1835, c. 46, ss. 1, 2, 3, v. 4, p. 779; 3 Mar., 1837, 
 c. 43, V. 5, p. 187; 4 Mar., 1840, c. 4, ss. 1, 2, 3, v. 5, p. 369; 4 Mar., 1840, c. 4, 
 s. 4, V. 5, p. 370; 20 Jan., 1843, c. 4, v. 5, p. 597; 14 Jan., 1846, c. 4, s. 1, v. 9, 
 p. 3; 19 Jan., 1849, c. 20, s. 1, v. 9, p. 341; 3 Mar., 1873, c. 226, s. 3, v. 17, p. 
 508.) 
 
 This section has been amended with reference to the salary of the Commissioner. 
 
 Sec. 471. [Duties of Commissioner.] The Commissioner of Pensions shall 
 perform, under the direction of the Secretary of the Interior, such duties in 
 the execution of the various pension and bounty-land laws as may be pre- 
 scribed by the President.— (2 Mar., 1833, c. 54, s. 1, v. 4, pp. 619, 622; 3 Mar., 
 1835, c. 46, s. 2, v. 4, p. 779; 3 Mar., 1837, c. 43, s. 2, v. 5, p. 187; 4 Mar., 1840, 
 c. 4, s. 2, V. 5, p. 369; 4 Mar., 1840, c. 4, s. 4, v. 5, p. 370; 20 Jan., 1843, c. 4, 
 s. 2, V. 5, p. 597; 19 Jan., 1877, c. 27, v. 19, p. 224.) 
 
 Service pensions to disabled enlisted men are to 
 be granted under the direction of the Sec- 
 retary of the Navy. (Sees. 4756^757, R. S.) 
 
 Jurisdiction, Commissioner of Pen- 
 sions. — Requests for information concerning 
 pensions should be addressed to the Commis- 
 sioner of Pensions, under whose jurisdiction 
 lies the authority of granting pensions to claim- 
 ants and deciding questions of law and fact 
 relative thereto. (File 26250-709:1, Jan. 5, 
 1916; see also file 26510-1247.) 
 
 The law (act of May 11, 1912, 37 Stat., 112) 
 requires proof of the length of service of pen- 
 sion claimants to be made "according to such 
 rules and regulations as the Secretary of the 
 Interior may provide." This language is 
 similar to that contained in the act of August 
 5. 1892, under which it Avas held by the Interior 
 Department (16 P. D., 492, 493) that evidence 
 as to whether a person rendered the required 
 service "must be considered and passed upon 
 by the Commissioner of Pensions, subject only 
 to the superAisory jurisdiction of the Secretary 
 of the Interior;" that where the evidence con- 
 cerning claimant's length of service is indefi- 
 nite and contradictory, "the record is not con- 
 clusive either as to the length or character of 
 the emplojTuent;" and that "the fact of such 
 Ber\dce, or emplojmient, may be proved by any 
 competent witness, whether officer, enlisted 
 man, or civilian." (File 26510-1214, Sept. 2. 
 1915.) 
 
 ^ The exclusive jurisdiction of the Commis- 
 sioner of Pensions to determine all such ques- 
 tions, under the direction of the Secretary of 
 the Interior, was again expressed by the Assist- 
 ant Secretary of the Interior (18 P. D., 480) as 
 follows: "It is the duty of the Commissioner of 
 Pensions to jiidge and determine all applica- 
 tions for pensions and to construe and interpret 
 all questions which may arise as to the con- 
 struction of the several acts of Congress relating 
 to pensions; and said officer is the exclusive 
 judge of the law and the facts in all cases within 
 the scope of hia authority, subject only to the 
 
 direction of the Secretary of the Interior 
 Thus, acting under the direction of the Secre- 
 tary of the Interior, the Commissioner of Pen- 
 sions constitutes a special tribunal for the adju- 
 dication of pension claims, and his judgments, 
 awards, and decrees in such claims are final; 
 they are in the nature of judicial decrees which 
 necessarily conclude the rights of all persons 
 within the scope of his authority." See also 
 19 P. D., 269, 272, and cases there cited. (File 
 26510-1214, Sept. 2, 1915.) 
 
 In 19 P. D., 188, the decision of the War De- 
 partment that the death of a soldier occurred 
 in line of duty was rejected by the Commis- 
 sioner of Pensions. On appeal, the action of 
 the Commissioner of Pensions was reversed by 
 the Assistant Secretary of the Interior, who, 
 nevertheless, stated: "This department does 
 not — can not, under the law — accept the con- 
 clusion that this soldier was in line of duty when 
 he was killed merely because the War Depart- 
 ment so holds. It does, however, upon the 
 facts in the case, conclude that * * * 
 he is held for pensionable purposes to have 
 been in line of duty when he met his death." 
 (File 26510-1214, Sept. 2, 1915.) 
 
 In answer to inquiries, the Navy^ Department 
 should furnish the Commissioner of Pensions 
 with all facts of record bearing upon the serv- 
 ice of claimants, leaA-ing the determination of 
 doubtful questions and the drawing of infer- 
 ences from such facts to the jurisdiction of the 
 Pension Bureau, which is claimed by the In- 
 terior Department in the decisions above cited 
 to be exclusive. The law, as interpreted by 
 the Interior Department, ha^dng made it the 
 duty of the Commissioner of Pensions and his 
 superiors to decide all questions of Imo and fact 
 which may be involved in pension claims, the 
 Navy Department should not be called upon 
 to render an "opinion " upon such questions for 
 the information or guidance of another depart- 
 ment of the Government which claims that its 
 jurisdiction thereof is exclusive. (File 26510- 
 1214, Sept. 2, 1915.) 
 
 396 
 
Interior Department. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 512. 
 
 Where the records are incomplete, the estab- 
 lishment therefrom of a definite date when an 
 enlisted man should be regarded as having been 
 discharged from the Navy during the Civil War 
 "would at best be merely a matter of conjec- 
 ture." Whether or not such man was dis- 
 charged, and if so, on what date, is a question 
 of fact which may be established by competent 
 e\'idence in any case in which it becomes neces- 
 sary to decide such question. _ However, where 
 a claim is filed and pending in the Bureau of 
 Pensions, this does not present a case pending 
 before the Navy Department^ which requires a 
 decision of this question, but is a case requiring 
 determination thereof by the Bureau of Pen- 
 sions. Accordingly, held that the Navy De- 
 partment can not with propriety render a deci- 
 sion as to the date when said man should be 
 regarded as having been discharged from the 
 Navy for pension purposes, first, because the 
 records of the Navy Department do not dis- 
 close this fact; second, because the evidence 
 submitted on this point is contradictory; third, 
 because the determination of this question, 
 upon the facts shown l^y the records of the Navy 
 and Treasury Departments and evidence sub- 
 mitted by the claimant, is a question which, 
 under the law as interpreted by the Interior 
 
 Department, is within the exclusive jurisdic- 
 tion of the Commissioner of Pensions, subject 
 only to the direction of his official superiors. 
 (File 26510-1214, Sept. 2, 1915. In this con- 
 nection, see War Department Circular of Nov. 
 2, 1901, pul)lishing clecision of the Secretary of 
 War (Mr. Root) concerning the powers of the 
 Secretary of War and the authority which had 
 been attempted to be exercised by subordinate 
 officers of other departments of reviewing and 
 overruling the decisions of the Secretary of 
 War upon military questions and matters aris- 
 ing in the administration of the War Depart- 
 ment.) 
 
 The Secretary of the Navy and not the Sec- 
 retary of the Interior has exclusive jurisdic- 
 tion to determine whether applicants are en- 
 titled to pensions imder sections 4756 and 
 4757, Revised Statutes; the Commissioner of 
 Pensions in making payments under said sec- 
 tions acts only in a ministerial capacity; it is 
 immaterial whether he concurs or differs in 
 such judgments as may be arrived at by the 
 Secretary of the Navy .(31 Op. Atty. Gen., 127, 
 affirmed Op. Atty. Gen., Nov. 7. 1917, file 
 26510-1022:11; see also 31 Op. Atty. Gen., 268, 
 and C. M. O. 37, 1918, p. 20.) 
 
 Sec. 612. [Returns Office.] The Secretary of the Interior shall from time 
 to time provide a proper apartment, to be called the Returns Office, in which 
 he shall cause to be filed the returns of contracts made by the Secretary of 
 War, the Secretary of the Navy, and the Secretary of the Interior, and shall 
 appoint a clerk of the first class to attend to the same. [See §§ 3744-3747.] — 
 (2 June, 1862, c. 93, s. 4, v. 2, p. 412. 
 
 Contracts made by or under the Secretary of 
 the Navy shall be reduced to writing, 
 signed by the contracting parties, and 
 copy thereof filed, by the officer makirig 
 and signing the contract, in the Returns 
 Office within 30 days, together with all 
 bids, offers, proposals and advertisements 
 relating thereto, and affidavit of the officer 
 making the return. (Sees. 3744-3745, 
 R. S.) Time maybe extended to 90 days 
 in discretion of Secretary of the Navy. 
 (Act of June 15, 1917, 40 Stat., 198.) 
 Copies of returns of contracts, certified and 
 authenticated imder the seal of the Interior 
 Department, shall be evidence in prose- 
 cutions against officers for falsely swearing 
 _ to returns. (Sec. 888, R. S.) 
 Failure of any officer to make return as required 
 is punisnaljle by fine and imprisonment. 
 (Sec. 3746, R. S.) 
 Secreta,ry of the Navy shall furnish printed 
 instructions and blank forms of contracts 
 and affidavits to officers authorized to 
 make contracts. (Sec. 3747, R. S.) 
 The Secretary of the Interior has no 
 jurisdiction over the contracts entered into by 
 the Secretary of War or the Secretary of the 
 Navy because of the fact that returns are to be 
 made to an office in his department. (29 Op. 
 Atty. Gen., 293.) 
 
 It is the duty of the Secretary of the 
 Interior to call apparent violations of section 
 3746, Revised Statutes, to the attention of the 
 
 Department of Justice in order that, if the law 
 has been violated, appropriate criminal pro- 
 ceedings may be instituted for its enforcement. 
 (29 Op. Atty. Gen., 293.) 
 
 The duty rests upon each head of de- 
 partment to reduce to writing and make a 
 proper return to the Returns Office of all con- 
 tracts made by him referred to in section 3744, 
 Revised Statutes. (29 Op. Atty. Gen., 293.) 
 
 SuflB.ciency of return. — ^The return made 
 by the Assistant Secretary of the Navy, stating 
 that there were excepted therefrom "certain 
 plans that are confidential and can not be di- 
 vulged at this time without detriment to the 
 public interests," is a sufficient compUance 
 with the law. (29 Op. Atty. Gen., 293.) _ 
 
 ConfLdential plans. — Section 3744, Revised 
 Statutes, should not be construed as requiring 
 the disclosure of plans that are confidential 
 and can not be divulged without detriment to 
 the public interests, notwithstanding such 
 plans form part of the contract by express 
 stipulation contained therein. It is manifest 
 that if the Secretary of War and the Secretary 
 of the Navy were required in making returns 
 of contracts made by them for the construction 
 of things authorized for the national defense, 
 such as vessels of war, fortifications, armor and 
 armament, to accompany such contracts with 
 copies of plans and specifications, secrets per- 
 taining to the national defense would be ex- 
 posed to the pubUc view. (29 Op. Atty. Gen.. 
 293.) 
 
 397 
 
Sec. 616. Pt.2. REVISED STATUTES. Interior Department. 
 
 Sec. 613. [Clerk to file returns.] The clerk of the Returns Office shall file 
 all returns made to the Office, so that the same may be of easy access, keeping 
 all returns made by the same officer in the same place, and nmnbering them 
 m the order in which they are made. — (2 June, 1862, c. 93, s. 4, v. 12, p. 412.) 
 
 Sec. 514. [Indexes.] The clerk of the Returns Office shall provide and 
 keep an index-book, with the names of the contracting parties, and the number 
 of each contract opposite to the names; and shall submit the index-book and 
 returns to any person desiring to inspect it. — (2 June, 1862, c. 93, s. 4, v. 12, 
 p. 412.) 
 
 Sec. 516. [Copies of returns.] The clerk of the Returns Office shall furnish 
 copies of such returns to any person paying therefor at the rate of five cents 
 for every one hundred words, to which copies certificates shall be appended in 
 every case by the clerk making the same, attesting their correctness, and that 
 each copy so certified is a full and complete copy of the return. — (2 June, 1862, 
 c. 93, s. 4, V. 12, p. 412.) 
 
 398 
 
TITLE XIII. 
 THE JUDICIARY. 
 
 CHAPTER THIRTEEN. 
 
 HABEAS CORPUS. 
 
 Sec. 
 
 751 . Courts authorized to issue writ. 
 
 752. Judges authorized to grant writ. 
 
 753. Writ in case of prisoner in jail. 
 
 754. Application for writ. 
 
 755. Allowance and direction of writ. 
 
 756. Time of return. 
 
 Sec. 
 
 757. Form of return. 
 
 758. Body of party to be produced. 
 
 759. Day for hearing. 
 
 760. Denial of facts in return; amendments. 
 
 761. Summary hearing; disposition of party. 
 
 Sec. 761. [Courts authorized to issue writ.] The Supreme Court and the 
 circuit and district courts shall have power to issue writs of habeas corpus. — 
 (24 Sept., 1789, c. 20, s. 14, v. 1, p. 81; 10 Apr., 1869, c. 22, s. 2, v. 16, p. 44; 
 2 Mar., 1833, c. 57, s. 7, v. 4, p. 634; 5 Feb., 1867, c. 28, s. 1, v. 14, p. 385; 29 
 Aug., 1842, c. 257, s. 1, v. 5, p. 539; U. S. v. Hamilton, 3 Dall., 17; Ex parte 
 Burford, 3 Cr., 448; Ex parte Bollman, 4 Cr., 75; Ex parte Wilson, 6 Cr., 52; 
 Ex parte Kearney , 7 Wh. , 38 ; Ex parte Watkins, 3 Pet. ,193; Ex parte Watkins, 
 7 Pet., 568; Ex parte Milburn, 9 Pet., 704; Holmes v. Jennison, 14 Pet., 540; 
 Ex parte Barry, 2 How., 65; Ex parte Dorr, 3 How., 103; Barry v. Mercem, 5 
 How., 103; In re Metzger, 5 How., 176; In re Kaine, 14 How., 103; Ex parte 
 Wells, 18 How., 307; Ex parte MiUigan, 4 Wall., 2; Ex parte McCardle, 6 Wall., 
 318; Ex parte McCardle, 7 Wall., 506; Ex parte Yerger, 8 Wall., 85; Ex 
 parte Lange, 18 Wall., 163; In re Heinrich, 5 Blatch., 414; Ex parte Keeler, 
 Hemps., 306; U. S. v. Williamson, 3 Am. Law Rep., 729; Bennet v. Bennet, 
 
 I Deady, 299; Ex parte Evarts, 7 Am. Law Rep., 79; Norris v. Newton, 5 
 McLean, 22; U. S. v. Rector, 5 McLean, 174; Veremaitre's Case, 13 Law Rep., 
 608; Ex parte Sifford, 5 Am. Law Rep., 659; Ex parte McCan, 14 Am. Law 
 Rep., 158; U. vS. v. French, 1 Galhs., 1; Ex parte Cheeney, 5 Law Rep., 19; 
 Ex parte Des Roches, 1 McAUis., 68; Ex parte Pleasants, 4 Cr. C. C, 314; 
 Ex parte Turner, 6 Int. Rev. Rec, 147; Ex parte Jenkins, 2 Wall., jr., 521; 
 Ex parte Robinson, 6 McLean, 355; Ex parte Smith, 3 McLean, 121; Meade's 
 Case, 1 Brock., 324; U. S. v. Anderson, Cooke, 143; Fisk v. Union Pacific 
 Railway, 10 Blatch., 518; In re Joseph Stupp, 11 Blatch., 124; In re MacDonneU 
 
 II Blatch., 79, 170; In re Thomas, 12 Blatch., 370; In re Giacamo, 12 Blatch., 
 391 ; In re Joseph Stupp, 12 Blatch., 501; In re W. B. Bird, 2 Saw., 33; In re 
 Bogart, 2 Saw., 396.) 
 
 Circuit courts were abolished and their powers 
 and duties transferred to the district courts 
 by the Judicial Code, act of March 3, 1911, 
 sections 289-291 (36 Stat., 1167). 
 
 Due process of law denied accused, habeas 
 corpus proceedings as remedy — see note to 
 Constitution, fifth amendment, under "VI. 
 Remedy when Due Process Denied." 
 
 399 
 
Sec. 752. 
 
 Pt.2. REVISED STATUTES. 
 
 The Judiciary. 
 
 Power of Federal courts to order release of per- 
 son held l)y State authorities— see note to 
 section 753, RcvumhI Statutes, and to Con- 
 stitution, Artirle I, section 8, clause 1:5. 
 under ■III. .lurisdiction of Civil Authori- 
 ties." 
 
 Power to review proceedings of courts-martiul 
 by hal)eas corpus — see note to .section 75:5 
 Revised Statutes, and to Constitution, 
 Article I, section 8, clause 14, under "III. 
 Finality of court-martial proceedingp." 
 
 State courts without juris<liction to order relea'ie 
 of persons held l)y authority of United 
 States— see note to Constitution, Article 1. 
 section 8, clause 13, under "III. .Juris- 
 diction of Civil Authorities." 
 
 Suspension of privilege of writ of habea.s 
 corpus — «ee Constitution, Article I, section 
 9, clau.se 2, and note thereto. 
 The writ of habeas corpus ad subju- 
 
 ciendura, which Ls the oniiiuiry writ of hal)eas 
 
 corpus, is the written order of a judge or court 
 of competent jurisdiction, addressed to a person 
 who is alleged to be restraining another of his 
 liberty without authority of law, requiring the 
 si)eedy production in court of the party re- 
 strained, together with a return or statement set- 
 ting forth the true cause of such restraint. (See 
 note to Constitution, Art. I, sec. 9, clause 2.) 
 
 The writ of habeas corpus ad testifi- 
 candum is the judicial process issued to the 
 officer in charge of a prison, commanding the 
 production in court of a prisoner in his custody 
 for the purpose of having such prisoner testify 
 as a witness in a case there pending. (See 
 note to sec. 753, R. S.) 
 
 Under section 876, Revised Statutes, a writ 
 of subpoena in a criminal case will run into any 
 district; and it is held that the writ of habeas 
 corpus ad testificandum will run where a sub- 
 psena runs, it being but a substitute for a 
 subpoena. (12 Comp. Dec, 538.) 
 
 Sec. 752. [Judges authorized to grant writ.] The several justices and judges 
 of the said courts, within their respective jurisdictions, shall have power to 
 grant writs of habeas corpus for the purpose of an inquiry into the cause of 
 restraint of liberty.— (24 Sept., 1789, c. 20, s. 14, v. 1, p. 81; 10 Apr., 1869, c. 
 22, s. 2, v. 16, p. 44; 2 Mar., 1833, c. 57, s. 7, v. 4, p. 634; 5 Feb., 1867, c. 28, 
 s. 1, v. 14, p. 385; 29 Aug., 1842, c. 257, s. 1, v. 5, p. 539.) 
 
 "Within their respective jurisdic- 
 tions. "^Wli ere the party is alleged to be un- 
 lawfidlv restrained of his liberty in a distant 
 pa-^session of the United States (island of 
 Guam), by or under authority of a naval officer 
 serving as governor thereof, a writ of habeas 
 corpus can not be directed to the Secretary of 
 the Navy commanding him to produce such 
 party in the Suj)reme Court of the District of 
 Columbia, in order that the court may inquire 
 into tlie grounds of the detention . The prisoner 
 not being in the actual custody of the Secre- 
 tary of the Navy, jurisdiction to issue the writ 
 can not be conferred upon the court by the 
 allegation that the Secretary of the Navy has 
 the final control over his imprisonment. Even 
 though the court were authorized to inquire 
 into the grounds of detention, where the party 
 is confined out of its jurisdiction, the writ coidd 
 not be L«sued to the Secretary of the Navy, 
 because the officers of the Navy are not his 
 agents, but are the agents of the President, who 
 is Commander in Chief; therefore the power to 
 release the prisoner or to produce him in 
 obedience to the writ would be in the President 
 and not in the Secretary. (McGowan v. 
 Moofly, 22 App. D. C, 148.) 
 
 It is possible that the court might issue a writ 
 of habeas corpus addressed to a person within 
 its jurisdiction, commanding him to produce 
 in court a person confined by his order and 
 unfler his control outside of the court's jurisdic- 
 tion, should it be made to appear that the party 
 had been confined within the jurisdiction of 
 the court and had been removed therefrom to 
 evade its process. (McGowan v. Moody, 22 
 App. D. C, 148, reviewing authorities.) 
 
 The provisions of the Revised Statutes "con- 
 template a proceeding against some person who 
 has the immediate custody of the party de- 
 
 tained, with the power to produce the body of 
 such party before the court or judge, that he 
 may be liberated if no sufficient reason is shown 
 to the contrary." (Wales v. Whitney, 114 
 U. S., 574.) 
 
 "Restraint of liberty." — "In the case of a 
 man in the military or naval service, where he 
 is, whether as an officer or a private, always 
 more or less subject in his movements, by the 
 very necessity of military ride and subordina- 
 tion, to the orders of his superior officer it 
 should "be made clear that some unusual re- 
 straint upon his liberty of personal movement 
 exists to justify the issue of the writ; otherwise, 
 every order of the superior officer directing the 
 movements of his subordinate, which neces- 
 sarily to some extent curtails his freedom of 
 will, may be held to be a restraint of his liberty, 
 and the party so ordered may seek reUef from 
 obedience by means of a writ of habeas corpus." 
 (Wales V. ^yhitney, 114 U. S., 564.) 
 
 "Something more than moral restraint is 
 necessary to make a case of habeas corpus. 
 There must be actual confinement, or the 
 present means of enforcing it." (Wales v. 
 Whitney, 114 U. S., 564.) 
 
 An officer of the Navy, against whom charges 
 had been preferred for trial by court-martial, 
 was given the following order by the Secretary 
 of the Navy: "You are placed under arrest and 
 you will confine yourself to the limits of the 
 city of Washington." The facts showed that 
 he was not under "physical restraint;" and 
 that the above-mentioned order did not operate 
 to restrain his movements any more than would 
 have been the case had it directed him to 
 remain in Washington to serve as a member of 
 the court-martial. Held, that there was no 
 such "restraint of liberty" in this case as to 
 justify the use of habeas corpus; and that the 
 
 400 
 
The Judiciary. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 753. 
 
 fear of being forcibly arrested and returned 
 should he leave the city of Washington, if 
 sufficient to keep the ofiicer within the limits 
 of the city, "is a moral restraint, which con- 
 cerns his own convenience, and in regard to 
 which he exercises his own will." (Wales v. 
 Whitney, 114 U. S., 564.) 
 
 "In case of a person who is going at large, 
 with no one controlling or watching him, or 
 detaining him, his body cannot be produced 
 by the person to whom the writ is directed, 
 unless by consent of the alleged prisoner, or 
 by his capture and forcible traduction into the 
 presence of the court." (Wales v. Whitney, 
 114 U. S., 564.) 
 
 Sec. 753. [Writ in case of prisoner in jail.] The writ of habeas corpus shall 
 in no case extend to a prisoner in jail, unless where he is in custody under or 
 by color of the authority of the United States, or is committed for trial before 
 gome court thereof; or is in custody for an act done or omitted in pursuance 
 of a law of the United States, or of an order, process, or decree of a court or 
 judge thereof; or is in custody in violation of the Constitution or of a law or 
 treaty of the United States; or, being a subject or citizen of a foreign state, 
 and domiciled therein, is in custody for an act done or omitted under any 
 alleged right, title, authority, privilege, protection, or exemption claimed 
 under the commission, or order, or sanction of any foreign state, or under 
 color thereof, the validity and effect whereof depend upon the law of nations; 
 or unless it is necessary to bring the prisoner into court to testify. — (24 Sept., 
 1789, c. 20, s. 14, V. 1, p. 81; 2 Mar., 1833, c. 57, s. 7, v. 4, p. 634; 5 Feb., 1867, 
 c. 28, s. 1, V. 14, p. 385; 29 Aug., 1842, c. 257, s. 1, v. 5, p. 539; Ex parte Dorr, 
 3 How., 103; Ex parte Barnes, 1 Sprague, 133; Ex parte Bridges, 2 Woods, 428.) 
 
 I. Persons in Custody by Sentence of 
 
 CoURT-ilARTIAL. 
 
 II. Persons in Custody for Act Done in 
 Pursuance of a Law of the United 
 States. 
 
 III. Persons in Custody in Violation of 
 
 the Constitution of the United 
 States. 
 
 IV. Bringing Prisoner into Court to Tes- 
 
 tify. 
 
 I. Persons in Custody by Sentence of 
 Court-Martial. 
 
 Jurisdiction of courts-martial subject to 
 review. — "It cannot be doubted that the 
 civil courts may in any case inquire into the 
 jurisdiction of a court-martial, and if it appears 
 that the party condemned was not amenable 
 to its jurisdiction, may discharge him from the 
 sentence. And, on the other hand, it is equally 
 clear that by habeas corpus the ci\'il courts 
 exercise no superi-isory or correcting power 
 over the proceedings of a court-martial; and that 
 no mere errors in their proceedings are open to 
 consideration. The single inquiry, the test, is 
 
 i'urisdiction. That being established, the 
 labeas corpus must be denied and the peti- 
 tioner remanded. But wanting, it must be 
 sustained and the petitioner discharged." (In 
 re Grunley, 137 U. S., 147.) 
 
 An enUsted man of the Marine Corps is not 
 amenable to trial by naval court-martial under 
 section 1624 of the Revised Statutes (Articles 
 for the Government of the Na\'y) where the 
 offense charged was committed by him while 
 detached for service with the Army, in accord- 
 ance with section 1621, Revised Statutes, at 
 which time he was subject to the Articles of 
 
 War (sec. 1342, R. S.) and not subject to the 
 laws or regulations for the government of the 
 Navy. Accordingly, in habeas corpus pro- 
 ceedings the prisoner is entitled to discharge 
 from custody under the sentence of the naval 
 court-martial. (U. S. v. Waller, 225 Fed. 
 Rep., 673; C. M. O. 31, 1915, p. 6. But see sub- 
 sequent amendment to sec. 1342, R. S., art. 2 
 (c), made by act Aug. 29, 1916, 39 Stat., 651.) 
 
 Errors of procedirre cannot be re- 
 viewed. — ^Wliere the military authorities pro- 
 ceed regularly within their jurisdiction, tney 
 cannot be interfered with "no matter what 
 errors may be committed in the exercise of 
 their lawful jurisdiction." (In re McVey, 23 
 Fed. Rep., 878.) 
 
 "\Miere a court-martial had jurisdiction to 
 try petitioner for an offense against the naval 
 regulations, and to impose sentence authorized 
 thereby, a civil court in habeas corpus proceed- 
 ings could only review the question of juris- 
 diction and could not pass on alleged errors of 
 law committed by the court-martial or on the 
 severity of the sentence imposed." (Ex parte 
 Dickey, 204 Fed. Rep., 322.) 
 
 A statute providing that the judge advocate 
 shall not be present during a closed session of 
 the courtj relates to procedure merely, and not 
 to jurisdiction; and, while the rights of the 
 accused are \'iolated by allowing the judge 
 advocate to be present for a short time during 
 a closed session, the nonobservance of the 
 statute is a matter for the revising military 
 authorities, not for the ci\'il courts in habeas 
 corpus proceedings. (Ex parte Tucker, 212 
 Fed. Rep., 569. The statute referred to was the 
 act of July 27, 1892, sec. 2, 27 Stat., 277, relat- 
 ing to Army courts-martial, and was errone- 
 ously cited by the court as applicable to naval 
 courts- martial; there was no similar statute with 
 
 401 
 
Sec. 763. 
 
 Pi. 2. REVISED STATUTES. 
 
 The Judiciary. 
 
 reference to the Navy, but the Nav'y Refla- 
 tions rontainod a provi.sioii to (ho 8anie efiect.) 
 
 Where a court-martial has juri.s<^liction over 
 the porson and subject niattor. ita jirocccdinga 
 can not ho collaterally impeached for any 
 mere error or irregularity, if there were such 
 committed, within the Bjihere of its authority. 
 (Ex parte Reed, 100 I T. S., 2:1.) 
 
 "We must not he understood Ity anything 
 we have said as intending in the slightest degree 
 to impair tlie salutary rule that the s(>ntences 
 of co\irtvS-martial, when affirmed l)y the mili- 
 tary tril)unal of last resort, cannot be revised 
 by the civil courts s;ive only when void because 
 of an absolute want of power, and not merely 
 voidable because of the defective exercise of 
 power possessed." (Carter v. McClaughry, 
 183U. S.,401.) 
 
 "Undoubtedly errors are committed liy 
 courts-martial which a civil tribunal would 
 regard as sulficient grounds for a reversal of 
 their judgments if it were sitting as an appel- 
 late court. But there is always this radical 
 difference between an appellate court sitting 
 for the correction of errors and a ci\'il court 
 into which the record of a court-martial is 
 collateral — in the former there is not a failure 
 of justice; the appellate court may reverse a 
 judgment or prescribe another or award a new 
 trial: in the latter the court miist either give 
 full effect to the sentence or pronounce it 
 whollv void." (Swaim v. U. S., 28 Ct. Cls., 
 217; affirmed 165 U. S., 563.) 
 
 "Courts-martial are lawful tribunals, with 
 authority to finally determine any case over 
 which they have jurisdiction, and their pro- 
 ceedings, when confirmed as pro\'ided, are not 
 open to re^•iew by the civil tribunals, except 
 for the purpose of ascertaining whether the 
 military court had jurisdiction of the person 
 and subject matter, and whether, though 
 ha^•ing such jurisdiction, it had exceeded its 
 powers in the sentence pronoimced." (Carter 
 V. Roberts, 177 U. S., 496; Ex parte Mason, 105 
 U. S., 697; Johnson v. Sayre, 158 U. S., 109.) 
 
 "With the sentences of courts-martial which 
 have been convened regularly, and have pro- 
 ceeded legally, and by which punishments 
 are directed, not forbidden by law, or which are 
 according to the laws and customs of the sea, 
 ci\^l courts have nothing to do, nor are they in 
 any way alterable by them. If it were other- 
 wise, the civil courts would virtually admin- 
 ister the rules and articles of war, irrespective 
 of tho.'^e to whom that duty and obligation has 
 been confided by the laws of the United States, 
 from who.se decisions no appeal or jurisdiction 
 of any kind has been given to the civil magis- 
 trate or ciN-il court." (Dynes v. Hoover, 20 
 IIow., 55, 82.) 
 
 SufSciency of charges and specifications 
 can not be reviewed. — "^^^lere a charge 
 against a person tried by a military court is 
 within the court's jurisdiction, and is author- 
 ized by the Army or Navy Regulations, the 
 manner of setting out the offense is a matter of 
 pleading, rather than jurisdiction, the suffi- 
 ciency of which is for the exclusive determina- 
 tion of the court-martial." (Ex parte Dickey, 
 204 Fed. Rep., 322.) 
 
 In the case of Carter v. McClaughry (183 
 
 itended in habeas 
 
 U. S., 355, 400), it was contended 
 
 corpus proceedings that the offense of embez- 
 zlement l)y an oliicer of the Army was errone- 
 ously charged as a violation of article 02 of the 
 Articles of War (sec. 1342, R. 8.), which pro- 
 vides for the punishment of offenses "to the 
 prejudice of good order and military disci- 
 pline." In overruling this contention it was 
 stated by the Su])r(Mne Court: 
 
 "We should suppose that embezzlement 
 would be detrimental to the service within the 
 intent and meaning of the article, but it is 
 enough that it was peculiarly for the court- 
 martial to determine whether the crime charged 
 was 'to the prejudice of good order and military 
 discipline.' (Swaim v. United States, 165 
 U. S., 553; Smith v. Wliitney, 116 U. S., 178; 
 United States v. Fletcher, 148 U. S., 84.) In 
 Swaim v. United States, which involved a 
 sentence under the sixty-second Article of War, 
 Mr. Justice Shiras, delivering the opinion, 
 said: 'But, as the authorities heretofore cited 
 show, this is the very matter that falls within 
 the province of courts-martial, and in respect 
 of which their conclusions cannot be con- 
 trolled or reviewed by the civil courts. As was 
 said in Smith v. Whitney, 116 U. S., 178, "of 
 questions not depending upon the construction 
 of the statutes, but upon unwritten military 
 law or usage, within the jurisdiction of courts- 
 martial, military or naval officers, from their 
 training and experience in the ser-\dce, are 
 more competent judges than the courts of com- 
 mon law . . . Under every system of mili- 
 tary law for the goA-ernment of either land or 
 naval forces, the jurisdiction of courts-martial 
 extends to the trial and punishment of acts of 
 military or naval officers which tend to bring 
 disgrace and reproach upon the ser^dce of 
 which they are members, whether those acts 
 are done in the performance of military duties, 
 or in a civil position, or in a social relation, or 
 in private business." '" 
 
 Sentence final when confirmed by the 
 proper military authority. — In cases which 
 do not extend to the loss of life, or to the dis- 
 missal of a commissioned or warrant officer, the 
 Secretary of the Navy is "the final reviewing 
 authority provided by law to act upon records 
 of courts-martial." (Ex parte Dickev, 204 
 Fed. Rep., 322, 326.) \^^lere the court-martial 
 is ordered by the Secretary of the Navy, its 
 sentence can not be carried into effect until 
 confirmed by him (Dynes v. Hoover, 20 How., 
 81); where ordered by an officer of the Navy 
 vested with such authority, its sentence may be 
 carried into execution on confirmation by such 
 officer (sec. 1624, R. S., art. 53). W^hc-ve the 
 sentence extends to loss of life, or to the dis- 
 missal of a commissioned or warrant officer, it 
 can not be carried into execution until con- 
 firmed by the President. (Sec. 1624. R. S., 
 art. 53.) In any of these cases, where the 
 sentence has been so confirmed by the proper 
 reviewing officer, "it becomes final, and must 
 be executed, unless the President pardons the 
 offender. It is in the nature of an appeal to 
 the officer ordering the court, who is made by 
 law the arbiter of the legality and propriety of 
 the court's sentence, ^^^len confirmed, it is 
 altogether beyond the jurisdiction or inquiry 
 of any civil tribunal whatever, unless it shall 
 be in a case in which the court had not jurisdic- 
 
 402 
 
The Judiciary. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 753. 
 
 tion over the subject matter or charge, or one 
 in which, having jurisdiction over the subject 
 matter, it has failed to observe the rules pre- 
 scribed by the statute for its exercise." 
 (Dynes r. Hoover, 20 How., 81.) 
 
 '"'^lien affirmed by the military tribunal of 
 last resort," the sentences of courts-martial can 
 not be revised by the civil courts, "save only 
 when void because of an absolute want of 
 power." (Carter r. McClaughry, 183 U. S., 
 
 380.) 
 
 The judgments of a court-martial when ap- 
 proved as required, rest on the same basis 
 and are surrounded by the same considerations 
 which give conclusiveness to the judgments 
 of other legal tribunals. (Ex parte Reed, 100 
 U. S., 23.) 
 
 ^^■here the sentence of a court-martial has 
 been approved by the Secretary of the Navy, 
 in a case not extending to loss of life or dis- 
 missal of a commissioned or wan-ant officer, it 
 can not be revised by the civil coiuts on the 
 ground that alleged errors of law were com- 
 mitted by the court-martial, or that the 
 prisoner was harshly dealt -nith and a sentence 
 of undue severitv was imposed. (Ex parte 
 Dickey, 204 Fed. 'Rep., 322.) 
 
 Excessive sentence not void. — "Under a 
 writ of habeas corpus, the inquiry is not ad- 
 » dressed to errors, but to the question whether 
 the proceedings and judgment are nullities; 
 and unless it appears that the judgment or 
 sentence under which the prisoner is con- 
 fined is void, he is not entitled to his dis- 
 charge." "NMiere a court "has juridsiction of 
 the person and the offense, the imposition of 
 a sentence in excess of what the law permits, 
 does not render the legal or authorized portion 
 of the sentence void, but only leaves such 
 part of it as mav be in exce.ss, open to question 
 and attack." (U. S. r. Pridgeon. 153 U. S., 
 48; see also file 26287-1543;'' and G. C. M. 
 Rec. No. 23271.) 
 
 The prisoner "cannot be discharged on 
 habeas corpus until he has performed so much 
 of the judgment, or served out so much of the 
 sentence as it was within the power of the 
 court to impose." (In re Swan, 150 U. S., 
 637, 653; U. S. v. Pridgeon, 153 U. S., 48.) 
 
 Discharge not required by subsequent 
 change in party's status. — An officer con- 
 A-icted by court-martial and sentenced to dis- 
 missal and imprisonment, which sentence is 
 duly approved by the President, can not be 
 released from custody on habeas corpus on the 
 ground that upon execution of the sentence of 
 dismissal he ceased to be amenable to military 
 jurisdiction and could not be held to serve his 
 period of imprisonment. ' ' Wliere the jurisdic- 
 tion of the military court has attached in respect 
 of an officer of the Army, this includes not only 
 the power to hear and determine the case, but 
 the power to execute and enforce the sen- 
 tence." (Carter v. McClaughry, 183 U, S., 
 365.) 
 
 Where jurisdiction has attached, it can not 
 be divested by mere subsequent change of 
 status. (Carter r. McClaughrv, 183 U. S.', 383, 
 citing Barrett r. Hopkins, 7" Fed. Rep., 312; 
 Coleman v. Tennessee, 97 U. S., 509; see al.-^o 
 file 26251-5447, Dec. 8, 1911.) 
 
 II. Persons in Custody for Act Done in 
 Pursuance of a Law of the United 
 
 States. 
 
 Military guard charged -with man- 
 slaughter. — There is no question that an act 
 done by a soldier in the performance of his duty 
 in the military service of the United States, is 
 done in pursuance of a law of the United States, 
 and so not within the jurisdiction of a State court 
 to try. Accordingly, where a soldier on guard 
 duty shot at an escaping prisoner, as required 
 by the manual of guard duty, and killed a 
 young woman pedestrian, there being no claim 
 that the killing was intentional or that the guard 
 acted maliciously or wantonly or otherwise than 
 in good faith, held that the guard in shooting 
 was acting in the supposed performance of his 
 duty as a soldier, and was not subject to arrest 
 and trial by the State authorities for man- 
 slaughter, even though it might have been 
 more prudent for him to have exercised still 
 greater care; and accordingly, the judge of a 
 district court of the United States has authority 
 under sections 752, 753, and 761 Revised Stat- 
 utes, to inquire into the facts of the case and 
 direct his release from the custody of the State 
 authorities. (U. S. v. Lipsett, 156 Fed. Rep., 
 65: see also In re Fair, 100 Fed. Rep., 149.) 
 
 For other cases, see note to Constitution, 
 Article I, section 8, clause 13, under "III. 
 Jurisdiction of Civil Authorities." 
 
 III. Persons in Custody in Violation of 
 the Constitution of the United States. 
 
 Imprisonment without due process of 
 law. — "It is open to the courts of the United 
 States, upon an application for a writ of habeas 
 corpus, to look beyond forms and inquire into 
 the very substance of the matter, to the extent 
 of deciding whether the prisoner has been de- 
 prived of his liberty without due process of law, 
 and for this purpose to inquire into jurisdic- 
 tional facts, whether they appear upon the 
 record or not." (Frank v. Mangum. 237 U. S., 
 309.) 
 
 One committed for refusing to incrimi- 
 nate himself, in the exercise of his right under 
 the Constitution, should be released on habeas 
 corpus. (Foot V. Buchanan, 113 Fed. Rep., 
 156.) 
 
 For other cases see note to Constitution, 
 fifth amendment. 
 
 lY. Bringing Prisoner into Court to 
 Testify. 
 
 Naval prisoners as witnesses or parties 
 in civil courts. — "If the Federal or State 
 authorities desire the attendance of a naval 
 prisoner as a witness in a criminal case pending 
 in a civil court, upon the submission of such 
 a request to the Secretary of the Navy authority 
 will be given in a proper case for the production 
 of the man in court without resort being had to 
 a writ of habeas corpus ad testificandum." 
 (G. O. No. 121, Navy Dept., Sept. 17, 1914, 
 par. 16, citing file 26251-8684:2, June 10, 1914; 
 26276-93, May 29, 1914; 26276-40, June 10, 1912; 
 26276-33, June 5, 1911; 26276-17, Nov. 10, 1909; 
 etc.) 
 
 403 
 
Sec. 765. 
 
 Pt.2. REVISED STATUTES. 
 
 The Judiciary. 
 
 However, the Navy Department "will not but the department will allow the deposition 
 
 authorize the attendance of a naval prisoner in a of such naval prisoner to be taken in the case." 
 
 Federal or State court, either a.s a party or as a (G. O. No. 121, Navy Dept., Sept. 17, 1914, par. 
 
 witness in private litiixaiion pendiiii,' before Ki, citing file 20251-4913:1, Oct. 12, 1911; 
 
 such court, as in such ca.-^es the court may grant 2G276-3G, Dec. 9, 1911.) 
 a postponement or a continuance of the trial: 
 
 Sec. 754. [Application for writ.] Ai)pliciiti()n for writ of habeas corpus 
 shall bo made to the court, or justice, or judge authorized to issue the same, 
 by complaint in \vriting, signed by the person for whose relief it is intended, 
 setting forth the facts concerning the detention of the party restrained, in 
 wliose custody he is detained, and by virtue of what claim or authority, if 
 kno^^^l. The facts set forth in the complaint shall be verified by the oath of 
 the person making the apphcation.— (5 Feb., 1867, c. 28, s. 1, v. 14, p. 385.) 
 
 Averments of conclusions of law, inade- 
 quate. — "If the detention is claimed to be un- 
 lawful by reason of the invalidity of the process 
 or proceedings under which the party is held 
 in custody, copies of such process or proceedings 
 must be annexed to or the essential parts 
 thereof set out in the petition, and mere aver- 
 ments of conclusions of law are necessarily 
 inadequate." (Creamer v. Washington, 168 
 U. S., 128. See also ^^'hitten v. Tomlinson, 
 IGO U. S., 231: Kohl r. Lehlback, 160 U. S., 
 293; Cuddy, Petitioner, 131, U. S., 280; An- 
 dersen V. Treat, 172 U. S., 24.) 
 
 Where a petition for habeas corpus alleges 
 that the petitioner is the father of the person 
 whose release is sought, and that such person, 
 being between the ages of 18 and 21 years, 
 entered into the United States Navy without 
 
 the parent's consent, and is himself desirous 
 of being released therefrom; and that, under 
 the statutes of the United States in such case 
 made and provided, the enlistment of such 
 person was illegal and invalid: Held, That no 
 issue as to the intoxication of the recruit at 
 the time of enlistment is presented, especially 
 in view of the fact that the Revised Statutes, 
 section 1624, article 19, requires the dishonor- 
 able dismissal of an officer who knowingly 
 enlists an intoxicated person. Held, also, That 
 no issue as to intoxication at the time of enlist- 
 ment being presented by the pleadings, the 
 fact that the recruit was permitted, apparently 
 without objection, to testify to such intoxica- 
 tion, does not constrain the court on appeal to 
 review the latter question. (Thomas v. Winne, 
 122 Fed. Rep., 395.) 
 
 Sec. 755. [Allowance and direction of writ.] The court, or justice, or judge 
 to whom such application is made sliall forthwith, award a writ of habeas corpus, 
 unless it appears from the petition itself that the party is not entitled thereto. 
 The wT-it shall be directed to the person in whose custody the party is de- 
 tained.— (5 Feb., 1867, c. 28, s. 1, v. 14, p. 385; Ex parte Watkins, 3 Pet., 193; 
 Ex parte Milligan, 4 Wall., 2, (110). 
 
 Suspension of privilege of writ — see note to 
 Constitution, Article I, section 9, clause 2. 
 
 The writ need not be awarded where it 
 is obvious that, before a return to the writ can 
 be made, or any other action can be taken, the 
 restraint of which the petitioner complains 
 would have terminated. (Ex parte Baez, 177 
 r. S., 378.) 
 
 Persons confined by naval oflB.cers are not 
 in the custody of the Secretary of the Navy so 
 as to warrant the issuance of a writ of habeas 
 corjius directed to him. (McGowan v. Moody, 
 22 Ap]). D. C, 148; see note to sec. 752, R. S.) 
 
 " If the party is not in the custody of the 
 officer to whom the ^vrit is directed, he will so 
 state in his return." (G. 0. No. 121, Navy^ 
 Dept., Sept. 17, 1914, par. 7; see also file 26262- 
 1665: 41, Inc. 1, p. 26.) 
 
 Service of writ. — A writ of habeas corpus 
 was issued by a Federal judge, directed to the 
 commanding officer of the Arkansas, which 
 vessel was under orders to sail from the navy 
 yard, Norfolk, Va. , on the morning thatthe writ 
 was returnable. The writ was not served, but 
 the United States marshal communicated with 
 
 the commandant of the navy yard, who informed 
 the commanding officer of the Arkansas by 
 radiogram that the wi'it had been issued ; where- 
 upon the commanding officer delivered the 
 party named therein to the commandant of the 
 navy yard, and sailed in accordance with pre- 
 vious orders. Held, That the radiogram from 
 the commandant was in no sense legal service 
 on the commanding officer of the Arkansas of 
 the WTit of habeas corpus; however, thelatter's 
 action in delivering the party to the com- 
 mandant, under the circumstances, was ap- 
 proved. (File 26522-26, Nov. 30, 1914.) 
 
 A writ of habeas corpus was issued by a 
 United States judge, addressed to the Secretary 
 of the Navy, the commandant of the navy yard, 
 Brooklyn, N. Y., "and any other person having 
 custody of" the enlisted man named in said 
 writ. The writ was delivered at the naval 
 prison, navy yard. New York, about 3.45 p. m. 
 The prisoner had been transferred under guard 
 from said prison at about 3p.m. the same day. 
 The original of the writ was then served upon the 
 prisoner's guard, while waiting on the Bay State 
 Line pier for instructions just prior to leaving 
 
 404 
 
The Judiciary. 
 
 Pt.2. RE VISED STAT UTES . 
 
 Sec. 757, 
 
 with his prisoner for the naval prison, Ports- 
 mouth, N . H . The circumstances were reported 
 to the commandant, navy yard, New York' 
 who directed that the guard carry out his orders 
 to deliver the prisoner at Portsmouth, which was 
 done. The matter being brought to the atten- 
 tion of the Secretary of the Navy, orders were 
 immediately issued for the return of the prisoner 
 to New York and his production in court in 
 answer to the writ of habeas corpus, the com- 
 
 mandant's attention being invited to the erro- 
 neous procedure adopted by him in directing 
 the guard to proceed with his prisoner to Ports- 
 mouth after a writ of habeas corpus had been 
 served upon said guard ; the fact that a writ of 
 habeas corpus issued by a Federal court must 
 always be obeyed ; and the unnecessary annoy- 
 ance and expense caused by the erroneous pro- 
 cedure in this case. (File 26522-25.) 
 
 Sec. 756. [Time of return.] Any person to whom such writ is directed shall 
 make due return thereof within three days thereafter, unless the party be 
 detained beyond the distance of twenty miles; and if beyond that distance 
 and not beyond a distance of a hundred miles, within ten days; and if beyond 
 the distance of a hundred miles, within twenty days.— ^(5 Feb., 1867, c. 28, s. 1, 
 V. 14, p. 385.) 
 
 Full time permitted. — "The officer upon 
 whom such a writ of habeas corpus is served 
 can not be required to obey same in any shorter 
 period after the service of the writ than that 
 specified in the above section of the Revised 
 Statutes, even though the writ should in terms 
 require that the person named therein be pro- 
 duced 'forthwith,' or 'immediately,' or at a 
 specified time." (G. O. No. 121, Na^T Dept., 
 Sept. 17, 1914, par. 5, citing Ex parte Baez, 177 
 U. S., 389, and United States v. Bollman, 24 
 Fed. Cas., 1190.) 
 
 Commanding oflB.cers of vessels or shore 
 stations of the Navy or Marine Corps are for- 
 bidden to deliver any person in their custody 
 or under their control to the civil authorities, 
 in obedience to writs of habeas corpus, without 
 first communicating with the Secretary of the 
 Navy and awaiting his instructions in the 
 premises. "The Secretary of the Na\^ will 
 promptly issue the necessary orders in the case 
 or make request upon the Attorney-General, 
 in accordance with Title VIII of the Revised 
 Statutes of the United States, to furnish such 
 legal assistance to the commanding officer con- 
 cerned as the interests of the United States 
 involved in such case may demand." Should 
 instructions for any reason not be received by 
 the commanding officer from the Secretary of 
 the Navy by the last day of the period allowed 
 by law for making return, he will comply with 
 sections 757 and 758 of the Revised Statutes, 
 and request the court to delay the hearing of 
 the cause for the full period of five days allowed 
 by section 759, Revised Statutes, so that fur- 
 ther opportunity may be afforded for the re- 
 ceipt of instructions in the premises from the 
 Secretarv of the Navy. (G. O. No. 121, Na\y 
 Dept., Sept. 17, 1914.) 
 
 A fine of $1,000 for contempt of court 
 was imposed upon General Jackson, at the close 
 
 of the War of 1812, for refusing obedience to a 
 writ of habeas corpus, which fine he paid. 
 (See Dow v. Johnson, 100 U. S., 158, 194, noted 
 under Constitution, Art. I, sec. 8, clause 11, 
 "Effect of martial law.") 
 
 An oflS^cer of the Army refused during the 
 Civil War to receive service of a writ of habeas 
 corpus issued by the Chief Justice of the United 
 States on the ground that the privilege of the 
 writ had been suspended by him, under author- 
 ity from the President. The chief justice held 
 that he was without power to proceed further 
 in the premises, and that it became the duty 
 of the President under the Constitution, Arti- 
 cle II, section 3, to come to the aid of the judi- 
 cial authority when resisted by a force too 
 strong to be overcome, assisting it to execute 
 the process and enforce its judgments. (Ex 
 parte Merryman, 17 Fed. Cas. No. 9487; see 
 note to Constitution, Art. I, sec. 9, clause 2, 
 and Art. II, sec. 3.) 
 
 When service of the writ is prevented by 
 force, the court does not perceive that any- 
 thing more can be done. "The court deeply 
 regrets that officers of the United States should 
 obstruct process out of a court of the United 
 States, especially this process;" nevertheless, 
 "those officers are at present beyond the con- 
 trol of the law, and the court has not the com- 
 mand of the physical force needful to effect a 
 service of this writ at the present time. Let 
 the MTit be placed on file, to be served when 
 and where service may become practicable." 
 (In re Winder, 30 Fed. Cas. No. 17867.) 
 
 An order from the War Department to a 
 United States marshal not to obey a writ of 
 habeas corpus is no protection to such officer, 
 who is answerable for contempt of court for 
 refusing obedience to the writ. (Ex parte 
 Field, 9 Fed. Cas. No. 4761.) 
 
 Sec. 757. [Form of return.] The person to whom the writ is directed shall 
 certify to the court, or justice, or judge before whom it is returnable the true 
 cause of the detention of such party. — (5 Feb., 1867, c. 28, s. 1, v. 14, p. 385.) 
 
 "If the party is not in the custody of the Dept., Sept. 17, 1914, par. 7; see also file 262G2- 
 olficer to whom the writ is directed, he will so 1625:41, Inc. 1, p. 26.) 
 state in his return." (G. O. No. 121, Navy 
 
 405 
 
Sec. 767. 
 
 Pt.2. REVISED STATUTES. 
 
 The Judiciary. 
 
 The following; is a form of return which has 
 been used in such a case (see citation last 
 above noted): 
 
 "Return of Respondent. 
 
 "U.S.S. , 
 
 "Hampton Roads, Va., Nov. 13, 1912. 
 "In re W. \V. D. , Chief Com- 
 missary Steward, U. S. Navy. 
 "To the Honorable The Judge of the 
 U. S. District Court, Eastern District 
 of N'irginia: 
 "The respondent, Captain J. A. 
 
 H , U. S. Navy, having been served 
 
 a writ for the production of W. W. 
 
 D , respectfully makes return and 
 
 states that the said W. W. D is not 
 
 now under his command. 
 
 "J \ jj_ 
 
 "Captain, U. S. Navy, 
 
 "Commanding U. S. S.- 
 
 For form of return filed in the case of an officer 
 of the Navy who applied for a writ of habeas 
 corpus while under arrest awaiting trial by 
 court-martial, but not in actual custody, merely 
 being confined "to the limits of the city, " in 
 which such trial was to be had, see Wales v. 
 WTiitney, 114 U. S., 567. 
 
 The following form of return has been 
 prescribed by the Secretary of the Navy for the 
 guidance of officers on whom writs of habeas 
 corpus are served by Federal courts or judges 
 (see Naval Courts and Boards, 1917): 
 
 • 
 
 "In the District Court of the United States 
 for the (Eastern) District of (Virginia). 
 
 "In the Matter of 
 A F. B- 
 
 IReturn of re- 
 — ./ spondent. 
 
 "Upon application for writ of Habeas 
 Corpus. 
 
 "To the Honorable G— H. R , 
 
 Judge of said Court {or To the said 
 Court): 
 
 "1. Comes now M H. C , 
 
 captain, U. S. Navy {or U. S. Marine 
 
 Corps), commanding officer of the , 
 
 and by way of return to the writ of habeas 
 corpus issued herein, states, in conformity 
 with the provisions of section 757 of the 
 Revised Statutes of the United States, as 
 follows, to wit: 
 
 "2. That the said A F. B 
 
 enlisted in the United States Navy {or in 
 
 the United States Marine Corps) as 
 
 on the day of , 19 — , at (Boston, 
 
 Massachusetts), for a term of four years 
 from that date. 
 
 "3. That the said A F. B , 
 
 at the time of his enlistment as aforesaid, 
 stated on oath that ho was born on the 
 
 day of , 1— — , thus making 
 
 him more than eighteen years of age, as will 
 appear from a copy of the enlistment record 
 
 of said A— F. B , hereto attached 
 
 asapartof thisrotiu'n; that since the enlist- 
 ment of said A F. B he has 
 
 received pay and allowances from time to 
 
 time thereunder; that on the day 
 
 of , 19—, the said A F. B 
 
 was detained and recommended for trial by 
 
 general court-martial for fraudulent enlist- 
 ment in the United States Navy, in viola- 
 tion of the act of (.'ongress approved March 
 3, 1893, United States Statutes at Large, 
 volume twenty-seven, page seven hundred 
 and sixteen ; and that said action was before 
 the issuing of the writ herein. 
 
 "4. That the said A F. B 
 
 deserted from said United States Navy {or 
 United States Marine Corps), at (Boston, 
 Massachusetts), on the - — — ■ — day of 
 
 , 19 — , and rejuained absent in 
 
 desertion until he was apprehended at 
 
 (Norfolk, Virginia), on the day of 
 
 — ;— — •, 19 — •, and was thereupon com- 
 mitted to the custody of the respondent, as 
 commanding officer of the • — ; and that 
 
 the said A- 
 
 F. B- 
 
 — was detained 
 
 and recommended for trial by general court- 
 martial for said offense of desertion in vio- 
 lation of section 1624 of the Revised 
 Statutes of the United States. 
 
 "5. That the said A F. B 
 
 has been duly arraigned and tried for the 
 said offenses before a general court-martial 
 convened by order of the Secretary of the 
 Navy (and is now held, awaiting the action 
 of the convening authority upon the pro- 
 ceedings and findings of said court) {or 
 was convicted thereof by said court and 
 was sentenced to , which sen- 
 tence was appro^Td) {or was mitigated to 
 
 , and approved) on the 
 
 day of , 19 — , by the Secretary of the 
 
 Navy, as required by article 53, section 
 1624, of the Revised Statutes of the United 
 States. (A copy of the order promulgating 
 said sentence and the action of the Secre- 
 tary of the Navv^ thereon is hereto at- 
 tached.) 
 
 "6. This respondent here produces in 
 
 court the body of the said A F. 
 
 B , as commanded by the writ of 
 
 habeas corpus issued in this matter as 
 aforesaid, but he prays that your honor 
 {or this honorable court) will refuse to 
 
 discharge the said A F. B , and 
 
 will return and remand him to the custody 
 of this respondent. 
 
 "Respectfully submitted. 
 
 "M— H. C , 
 
 "Captain, U. S. Navy, 
 
 "Commanding . 
 
 " , 19—. 
 
 " Var. 1. — If the offense is not fraudulent 
 enlistment by a minor under 18 years of 
 age, omit paragraph 3 above. 
 
 "Var. 2. — If the offense is fraudulent 
 enlistment by a minor under 18 years of 
 age without desertion, omit paragraph 4 
 above. 
 
 "Var. 3. — If the offense is neither fraudu- 
 lent enlistment by a minor under 18 years 
 of age, nor desertion, omit paragraphs 3 
 and 4 above and substitute an appropriate 
 description of the offense for which the 
 accused is detained, and state whether or 
 not he has been recommended for trial by 
 general court-martial for said offense. 
 
 "Var. 4. — If the accused has not been 
 tried by general court-martial, omit para- 
 graph 5 above." 
 
 406 
 
The Judiciary. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 761. 
 
 Sec. 768. [Body of party to be produced.] The person making the return 
 shall at the same time bring the body of the party before the judge who granted 
 the A\Tit.— (5 Feb., 1867, c. 28, s. 1, v. 14, p. 385.) 
 
 See note to section 756, Revised Statutes. 
 
 " In case of a person who is going at 
 large, with no one controlling or watching 
 him, or detaining him, his body cannot be pro- 
 duced by the person to whom the writ is di- 
 rected, unless by consent of the alleged jirisoner, 
 or by his capture and forcible traduction into 
 
 the presence of the court." In such a case 
 there is nothing to support a habeas corpus. 
 (Wales V. Whitney, 114 U. S., 564; see note to 
 sec. 752, R. S.) 
 
 " If the party is not in the custody of the 
 officer to whom the writ is directed, he will so 
 state in hisreturn." (See note to sec. 757, R. S.) 
 
 Sec. 769. [Day for hearing.] Wlien the writ is returned, a day shall be set 
 for the liearing of the cause, not exceeding five days thereafter, unless the party 
 petitioning requests a longer time. — (5 Feb., 1867, c. 28, s. 1 v. 14, p. 385.) 
 
 See note to section 756, Revised Statutes. 
 
 Sec. 760. [Denial of facts in the return ; amendments.] The petitioner or the 
 party imprisoned or restrained may deny any of the facts set forth in the return, 
 or may allege any other facts that may be material in the case. Said denials 
 or allegations shall be under oath. The return and all suggestions made against 
 it may be amended, by leave of the court, or justice, or judge, before or after 
 the same are filed, so that thereby the material facts may be ascertained. — 
 (5 Feb., 1867, c. 28, s. 1, v. 14, p. 385.) 
 
 Sec. 761. [Summary hearing; disposition of party.] The court, or justice, 
 or judge shall proceed in a summary way to determine the facts of the case, 
 by hearing the testimony and arguments, and thereupon to dispose of the party 
 as law and justice require. — (5 Feb., 1867, c. 28, s. 1, v. 14, p. 385.) 
 
 Summary hearing. — "The injunction to 
 hear the case summarily, and thereupon ' dis- 
 pose of the party as law and justice recpiire ' does 
 not deprive the court of discretion as to the 
 time and mode in which it will exert the powers 
 conferred upon it." (Ex parte Royall, 117 U. 
 S., 251.) 
 
 Issues of fact. — This section confers ex- 
 press power upon a Federal judge in halieas 
 corpus proceedings to pass upon questions of 
 fact; accordingly, where a soldier was arrested 
 by the civil authorities of a State upon a charge 
 of manslaughter growing out of the killing by 
 him of a young woman while shooting at an 
 escaping prisoner, Held, that the Federal judge 
 was empowered in habeas corpus proceedings 
 to inquire into the facts and decide that the 
 soldier was free from blame and therefore not 
 subject to prosecution in the State courts for 
 manslaughter. (United States v. Lipsett, 156 
 Fed. Rep., 65; see also, note to Constitution, 
 Art. I, sec. 8, clause 13, under ''III. Jurisdic- 
 tion of Ci\-il Authorities.") 
 
 [However, when the party is held pursuant to 
 the laws and regulations governing the Navy, 
 the onljr "facts" which the civil courts may 
 inquire into on habeas corpus are whether the 
 naval authorities have jurisdiction. (See note 
 to sec. 753, R. S.) AMiere he is held pursuant to 
 the finding of a court-martial the sufficiency of 
 the evidence is no part of such facts. (See In 
 re Stupp, 23 Fed. Cas. No. 13563.)] 
 
 Disposition of party upon subsequent 
 change of status. — A ^vrit of habeas corpus 
 was issued to determine the legality of the 
 confinement of a Chinaman held by the immi- 
 gi-ation authorities upon order of deportation 
 signed by the "Acting Secretary" of Labor, it 
 being contended that such officer was not in 
 fact the Acting Secretary at the time the order 
 was signed, and that his order was therefore 
 illegal and void. "WTiile the case was pending 
 the Secretary of Labor personally re\'iewed the 
 deportation proceedings and affirmed the pre- 
 \dous order signed by the "Acting Secretary." 
 Thereupon the court discharged the writ and 
 remanded the petitioner to the custody of the 
 immigration authorities, holding that in view 
 of the action personally taken ])y the Secretary 
 there remained "nothing at issue," and that 
 "courts are not organized to do idle things, but 
 to deternune issues presented," and it was un- 
 necessary to examine into the right of the 
 "Acting Secretarv." (Ex parte Ching Hing, 
 224 Fed. Rep., 261.) 
 
 Disposition of party claiming discharge 
 from Navy on ground of fraudulent en- 
 listraent. — It is the policy of the Navy De- 
 partment, upon return of the writ in fraudulent 
 enlistment cases to request the court to make 
 the order of discharge, if granted, to take effect 
 only after trial and punishment by naval court- 
 martial for the statutory offense involved. For 
 cases where this request has been granted and 
 
 407 
 
Sec. 761, 
 
 Pt.2. REVISED STATUTES. 
 
 The Judiciary. 
 
 full statement of this policy, Bee file 2757-8 of 
 August 27, li)0(i. (In this connection see pro- 
 \ision in the naval appropriation act of March 
 3, 1915 (3S Stat.. 931). that any minor who 
 fraudulently procures his enlistment in the 
 Navy by making false oath as to age 'shall, 
 upon request of either parent, or, in case of their 
 death, by the legal guardian, be released from 
 service in the Na\'y, u])on payment of full cost 
 of first outfit, unless, in any given case, the 
 Secretary, in his discretion, shall relieve said 
 recruit of such payment. ")_ 
 
 A minor who cnlista while under the statu- 
 tory age wdthout the reciuired consent of his 
 parents or guardian is "not only de facto, but 
 de jure, a soldier — amenable to military juris- 
 diction,"' and can not seciu"e his discharge upon 
 habeas corpus proceedings instituted by him- 
 self. The statutory requirement of consent in 
 such cases "is for the benefit of the parent or 
 guardian. It means simply that the Govern- 
 ment will not distiu"b the control of the parent 
 or guardian over his or her child without con- 
 sent. It gives the right to such parent or guar- 
 dian to invoke the aid of the court and secure 
 the restoration of a minor to his or her control; 
 but it gives no pri\-ilege to the minor." (In re 
 Morrissev, 137 U. S., 157; Solomon v. Daven- 
 port, 87 Fed. Rep., 318.) 
 
 Since the decision of the Supreme Court in 
 Morrissey's case (above noted) it is the settled 
 law that the enlistment of a minor in the Army 
 or Navy without the written consent of his 
 parents or guardian and against the prohibition 
 of the statutes of the United States is not void, 
 but voidable only ; that it is good as to the minor 
 but voidable at the instance of the parent or 
 guardian. But not\\'ithstanding such enlist- 
 ment is voidable, the civil courts on habeas 
 corpus will not interfere to discharge one who 
 is thus enlisted, "if at time of presentation of 
 petition for the writ he has been arrested and 
 is ])cing held on any charge cognizalile by a 
 military court." It does not follow from the 
 fact that such an enlistment is voidable that 
 the enlisted minor may obtain immunity from 
 prosecution for an offense committed by him 
 against the law of the United States. (In re 
 Scott, 144 Fed. Rep., 79; file 2757-1. In this 
 case the minor was arrested on a charge of fraud- 
 ulent enlistment preferred against him by his 
 commanding officer to the Commandant of the 
 Marine Corps, ^^^lile said charges were pending 
 and undetermined the minor's father applied 
 for a writ of hal^eas corpus; the court denied the 
 petition without prejudice to the petitioner to 
 renew same at the termination of the military 
 proceedings and at the expiration of the sen- 
 tence, if any be imposed thereunder; see also 
 Dillingham r. Booker, 1G3 Fed. Rep., (i9G; 16 
 Ann. Cas., 127, file 595G-6; United States v. 
 Pendleton, 1G7 Fed. Rep., 690.) 
 
 \Miere the Secretary of the Navy preferred 
 charges against a minor after hearing had been 
 had upon a writ of habeas corpus gi-anted upon 
 
 {)etition of minor's father to inquire into the 
 egality of his enlistment, and while the court 
 had the matter under advisement before ren- 
 dering a decision, Ueld, that although the en- 
 listment was voidable at the instance of minor's 
 father, who had not consented thereto, ne^■er- 
 theless he could not be discharged from the 
 
 custody of the naval authorities on writ of 
 habeas corpus until he had answered and sat- 
 isfied the cnarges pending against him. (U. S. 
 V. Reaves, 126 Fed. Rep., 127; file 15204. In 
 this case the minor, after fraudulently enlist- 
 ing and receiving pay from the (Government, 
 deserted; was arrested by the civil authorities 
 and held as a deserter; his father sued out a 
 writ of habeas corpus; the chief of police made 
 return on Jan. 5, 1903, the hearing of which 
 was set for Jan. 15, 1903, and the matter held 
 under advisement until Feb. 16, 1903. In the 
 meantime, Feb. 12, 1903, the Secretary of the 
 Navy preferred charges against the minor for 
 desertion and fraudulent enlistment, which 
 were served upon the prisoner. His discharge 
 was ordered by the circuit coiut (121 Fed. Rep., 
 848), but on appeal the decision was reversed.) 
 
 A minor under 18 years of age enlisted in the 
 Navy without the consent of his parents; 
 deserted; was arrested by the civil authorities 
 on a charge of desertion; while confined for 
 safe-keeping his father applied for his discharge 
 on habeas corpus. Held, that the minor was 
 subject to arrest and punishment for desertion 
 and other infractions of the rules and regula- 
 tions of the Navy, and can not be discharged 
 on writ of habeas corpus pending proceedings 
 against him therefor. (Ex parte Rock, 171 
 Fed. Rep., 240; see also In re Lessard, 134 
 Fed. Rep., 305.) 
 
 A minor under the age of 18 years enlisted 
 in the Navy without the consent of his parents, 
 who petitioned for a writ of habeas corpus. 
 In the meantime, prior to the suing out of the 
 writ, said minor was "detained and recom- 
 mended" for trial by court-martial for fraudu- 
 lent enlistment. Upon the hearing it did not 
 appear that charges had been preferred against 
 him. Held, that the petitioners are entitled 
 to the discharge of the minor on habeas corpus, 
 and the right can not be denied because of 
 contemplated or possible court-martial pro- 
 ceedings against the minor for fraudulent 
 enlistment, especially where between the time 
 demand for his discharge was made by his 
 parents of the naval authorities and the pro- 
 curing of the writ, several months elapsed, 
 during which no proceedings were taken 
 against him. (Ex parte Bakley, 148 Fed. Rep., 
 56; affirmed Dillingham v. Bakley, 152 Fed. 
 Rep., 1022; file 5506-5; compare Dillingham 
 V. Booker, 163 Fed. Rep., G9G, 16 Ann.Vas., 
 127, file 5956-6, which arose in the same juris- 
 diction, and in which the minor was remanded 
 to the custody of his commanding officer; in 
 the latter case it was shown beyond question 
 that the minor was being held for trial by court- 
 martial for desertion.) 
 
 An enlisted man arrested by a civil officer 
 as a deserter from the Navy will not be dis- 
 charged on habeas coi-pus upon the allegation 
 that he was intoxicated at the time of enlist- 
 ment. "It seems to me illogical to say that a 
 man can commit a crime and when arrested 
 obtain a discharge on the ground that the 
 original enlistment was not regular or proper." 
 (In re Hamilton and Carroll, Superior Court, 
 Fulton County (Ga.), Atlanta Circuit, file 
 ■ 7969 and 7988-04; see also In re McVey, 23 
 Fed. Rep., 878.) 
 
 408 
 
The Judiciary. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 761. 
 
 An enlisted soldier can not avoid a charge 
 of desertion by showing at the time when he 
 voluntarily enlisted he had passed the age at 
 which the law allows recruits to be enlisted for 
 the Army. (In re Grimley, 137 U. S., 147.) 
 
 Minors between the ages of 18 and 21 years 
 may be enlisted in the Navy without the con- 
 sent of their parents or guardians, being in- 
 cluded in the term "other persons" in section 
 1418, Revised Statutes, as amended. (Thomas 
 V. Winne, 122 Fed. Rep., 395; see also In re 
 Doyle, 18 Fed. Rep., 3(39; In re Norton, 98 
 Fed. Rep., 606.) The age at which an infant 
 shall be competent to do any acts or perform 
 any duties, civil or military, depends wholly 
 upon the legislature. (In re Morrissey, 137 
 U. S., 157.) 
 
 Disposition of party claiming discharge 
 from Marine Corps on ground of fraudu- 
 lent enlistment. — The Marine Corps is not 
 an independent organization, but is part of the 
 Navy rather than of the Army; and sections 
 1418-1419, Revised Statutes, which, taken 
 together, authorize the enlistment of minors 
 over 18 years of age to serve in the Navy without 
 the consent of their parents or guardians, apply 
 to enlistments in the Marine Corps as well; 
 so that a minor who has enlisted in the Marine 
 Corps -when over 18 years of age will not be dis- 
 charged from the custody of the officers of the 
 Marine Corps in habeas corpus proceedings 
 brought by the father, who did not consent to 
 the enlistment. (Elliott v. Harris, 24 App. 
 D. C, 11, follovs-ing In re Doyle, 18 Fed. Rep., 
 369, and overruling In re Shugrue, 3 Mackey 
 (D. C), 325, as being "in manifest conflict 
 with the principle upon which the subsequent 
 case of United States v. Dunn (120 U. S., 
 249) -was decided by the Supreme Court of 
 the United States." See also file 26251- 
 6297:7, May 18, 1914, and 26251-6297:8, June 
 4, 1914. But see McCalla v. Facer (144 Fed. 
 Rep., 61), in which the court approved and 
 followed In re Shugrue, apparently overlook- 
 ing the fact that said case had been overruled.) 
 
 Section 1117, Revised Statutes, proAdding 
 that no person under 21 years of age shall be 
 enlisted or mustered into the military service of 
 the United States, refers exclusively to enlist- 
 ments in the Army and does not include enlist- 
 ments in the Navy or Marine Corps. (Elliott v. 
 Harris 24 App. D. C, 11.) 
 
 As to status of Marine Corps, see note to sec- 
 tion 1621, Revised Statutes. 
 
 Appeal from decision of court or judge 
 granting -writ. — It is required by regulations 
 of the Navy Department (published in Naval 
 Courts and Boards, 1917), that whenever an 
 adverse decision is rendered in habeas corpus 
 proceedings against any officer of the Navy or 
 Marine Corps, such officer or counsel shall note 
 an appeal pending instructions from the Navy- 
 Department, and shall immediately make re- 
 port to the Judge Advocate General, forwarding 
 to him direct a copy of the opinion of the court 
 as soon as it can be obtained. 
 
 Insane persons in the Army and Navy law- 
 fully committed by the Secretary of War or Sec- 
 retary of the Navy to the Government Hospital 
 for the Insane should continue to be held by 
 the superintendent of that hospital until the 
 court orders otherwise or imtil they are cured. 
 
 The United States attorney for the District of 
 Columbia has been instructed to advise the 
 Department of Justice of any proceedings 
 through which such patients secure their release 
 from the hospital, so that consideration can be 
 given to the question of securing a review of the 
 case by the court of appeals. In this way an 
 authoritative ruling can be had which will set 
 at rest any question as to the right of the super- 
 intendent to hold persons after their discharge 
 from the Army or the Navy. (File 26251- 
 4927-10, July 8, 1911, quoting letter from De- 
 partment of Justice to the Interior Department, 
 dated Mar. 28, 1912.) 
 
 Arrest of petitioner after discharge. — 
 An enlisted man of the Marine Corps, discharged 
 on habeas corpus proceedings, was afterwards 
 arrested upon the charge of perjury in connec- 
 tion with his sworn statements at time of enlist- 
 ment and held for trial in the civil courts of the 
 United States at the instance of the Navy De- 
 partment. (File 5939-1, Oct. 12, 1906.) Later 
 the prosecution was discontinued, because of 
 the peculiar circumstances of hardship which 
 it involved, the Secretary of the Na\'y con- 
 curring in the recommendation of the United 
 States attorney to this effect. (File 5939-7, 
 Feb. 18, 1907.) In this connection see U. S. v. 
 Chung Shee (71 Fed. Rep., 277), holding that 
 the discharge of the party upon habeas corpus 
 is res judicata as to the issues of law and fact 
 involved, and that he is not subject to reaiTest 
 for the same cause. Compare In re White (45 
 Fed. Rep., 237) and Ex parte Kaine (14 Fed. 
 Cas., No. 7597), the latter holding that a deci- 
 sion under one writ refusing the discharge of a 
 prisoner is no bar to the issuing of any number 
 of other successive writs by any coiu-t or m agis- 
 trate having jurisdiction, and accordingly that 
 the decision of a circuit court of the United 
 States dismissing the Avrit and remanding the 
 prisoner was no bar to an inqiiiry by a justice of 
 the Supreme Com*t of the United States upon a 
 habeas corpus issued by him into the legality 
 of the detention of the prisoner. (Upon ques- 
 tion whether decision adverse to petitioner pre- 
 vents a new petition being filed for the same 
 cause, where an appeal was not taken see King 
 V. McLean Asylum, 64 Fed. Rep., 331.) 
 
 The Navy Department has authority under 
 the law to recommit an officer to the Govern- 
 ment Hospital for the Insane after his discharge 
 therefrom has been ordered by the Supreme 
 Court of the District of Columbia in accordance 
 with the finding of a jury that he is of sound 
 mind. However, to avoid placing itself in the 
 position of disregarding the court's action suffi- 
 cient time should elapse and new evidence be 
 obtained, so that a second habeas corpus pro- 
 ceeding could be successfully met. (File 
 8528-327, Apr. 18, 1911.) 
 
 Wliere the Supreme Court of the District of 
 Colum1)ia decided that an officer of the Navy 
 was entitled to his discharge from the Govern- 
 ment Hospital for the Insane but the chief 
 justice agreed to withhold the signing of an 
 order until the Navy Department could be com- 
 municated with and be heard on the subject, 
 the Navy Department ordered the officer in 
 question to a naval hospital for treatment, and 
 decided to take no further action in the case. 
 (File 8528-327:2, Jan. 31, 1911.) 
 
 409 
 
CHAPTER SIXTEEN". 
 
 WITNESSES' FEES. 
 
 Sec. 
 848. 
 849. 
 850. 
 
 Witnesses' fees. 
 
 No officer of court to have witness fees. 
 Witnesses in Government service allowed 
 actual expenses. 
 
 Sec. 
 851. 
 
 Witnesses transported on Government or 
 private vessel. 
 
 Sec. 848. [Witnesses' fees.] For each day's attendance in court, or before 
 any officer pursuant to law, one dollar and fifty cents, and five cents a mile for 
 going from his place of residence to the place of trial or hearing, and five cents 
 a mile for returning. When a witness is subpoenaed in more than one cause 
 between the same parties, at the same court, only one travel fee and one per 
 diem compensation shall be allowed for attendance. Both shall be taxed in 
 the case first disposed of, after which the per diem attendance fee alone shall be 
 taxed in the other cases in the order in which they are disposed of. 
 
 When a witness is detained in prison for want of security for "his appearance, 
 he shall be entitled, in addition to his subsistence, to a compensation of one 
 dollar a day. [See §§ 879, 881.]— (26 Feb., 1853, c. 80, s. 3, v. 10, p. 167; 1 
 May, 1876, c. 88, v. 19, p. 41; Dennis v. Eddy, 12 Blatch., 195.) 
 
 Witnesses before naval courts are to be allowed 
 fees and mileage at the rates provided for 
 witnesses in the United States district 
 courts for the State, Territory, or district in 
 which such naval court is held. (Act Feb. 
 16, 1909, sec. 12, 35 Stat., 622.) 
 Witness fees allowed for giving depositions for 
 use in Federal courts — see section 870, 
 Revised Statutes. 
 Witness fees allowed for giving depositions for 
 use in. State courts — see section 874, Re- 
 vised Statutes. 
 Witness fees allowed for giving depositions for 
 use before departments in pending claims — 
 see section 185, Revised Statutes. 
 Witnesses in Government employ — see section 
 
 850, Revised Statutes. 
 Witnesses in United States courts in Wyoming, 
 Montana, Washington, Oregon, California, 
 Nevada, Idaho, Colorado, Utah, New 
 Mexico, and Arizona are allowed $3 a day 
 during attendance and necessary travel 
 time; and 15 cents a mile for travel by 
 stage or private conveyance; and 5 cents 
 a mile for other travel. (Act May 27, 
 1908, sec. 1,35 Stat., 377.) 
 Witnesses in courts in District of Columbia are 
 allowed $1.25 a day and 5 cents a mile com- 
 ing and returning when summoned from 
 without the District. (Sec. 1] 14. Code, D. 
 C, act Mar. 3, 1901, 31 Stat., 1367). 
 Courts-martial. — Section 1202, Revised 
 Statutes, which authorizes judge advocates of 
 Army courts- martial "to issue like process to 
 compel witnesses to appear and testify which 
 courts of criminal jurisdiction within the 
 State, Territory, or District where such mili- 
 tary courts shall be ordered to sit, may lawfully 
 
 issue," operates to make applicable to such 
 courts-martial the provisions of section 848, 
 Revised Statutes, fixing the amount of fees 
 and mileage of such witnesses before courts of 
 the United States. As there is but one statute 
 upon the subject of witnesses attending in 
 court or before an officer, I feel compelled to 
 hold that the words ' ' in court " are Inroad enough 
 to include a court-martial, and that the analogy 
 existing between what is exacted of a witness, 
 both in the matter of attendance upon and the 
 giving of testimony, whether in a civil or 
 criminal court on the one hand or in a court- 
 martial on the other, is so great, coupled with 
 the fact that there is but one statute, as above 
 stated, regulating the compensation of wit- 
 nesses in attendance upon any court or any 
 officer pursuant to law, that I see no way of 
 escape from the conclusion that a witness in 
 attendance upon a court-martial vshall be paid 
 the same, and no more than is paid to a wit- 
 ness in attendance upon a civil or criminal 
 court. Since there is a statute regulating the 
 amount of per diem and traveling expenses of 
 a witness in attendance "in court," it seems 
 clear to my mind that that shall be made ap" 
 plicable to cover the compensation of a witness 
 "in a court-martial" rather than leave it to 
 the discretion of even so high an authority 
 as that of the honorable Secretary of War. 
 (1 Comp. Dec, 79. In this case the War De- 
 partment took the position that the appropri- 
 ation for compensation of witnesses attending 
 courts-martial is to be expended under the 
 rules and regulations prescril:)ed by the Sec- 
 retary of War, and the rate of compensation is 
 a matter to be left entirely to the discretion of 
 the Secretary of War. The Comptroller took 
 
 410 
 
The Judiciary. 
 
 Pt.2. REVISED STAT UTES . 
 
 Sec. 848. 
 
 the %'lew that there being a statute in force 
 regulating the compensation of witnesses in 
 attendance upon courts and before judges and 
 others authorized to compel their attendance, 
 it was applicable also to a witness compelled 
 by process of law to attend Ijefore a court- 
 martial; and accordingly concluded that 
 civilian witnesses duly sulipoenaed to attend 
 before a court-martial are entitled only to such 
 compensation as is paid to witnesses in attend- 
 ance upon United States courts.) 
 
 A military commission is not a court-martial. 
 (Dig. Comp. Dec, 89.) 
 
 For other cases, see below, "Expert wit- 
 nesses"; and see note to section 850, Revised 
 Statutes. 
 
 Departmental regulations govern the use 
 of departmental appropriations, but do not 
 apply to appropriations for expenses of wit- 
 nesses, which are by law audited by and dis- 
 bursed upon order of the court. (18 Comp. 
 Dec, 992, citing U. S. v. Sanborn, 135 U. S., 
 271, 284; see also "Courts-martial," above.) 
 
 Fees allowed for Sunday. — I have not 
 found any case specifically holding that under 
 section 848, Revised Statutes, which provides 
 for compensation to witnesses for attendance in 
 Federal courts, a witness is entitled to a per 
 diem for Sunday when obliged to remain over 
 from one week to another in the hearing of a case . 
 There are cases, however, to that effect in State 
 courts, under State laws similar to section 848. 
 It has also been held that a witness in attend- 
 ance upon the court, although not actually tes- 
 tifying, is entitled to his per diem compensation 
 for the days which he thus necessarily attends. 
 It would seem, therefore, not improper, when 
 in the discretion of the court or commissioner 
 such action is necessary, to allow a witness his 
 per diem for Sunday under the circumstances 
 stated. (1 Comp. Dec, 252.) 
 
 Witness in two cases. — A witness who at- 
 tended under subpoenaes on behalf of the 
 United States before the same commissioner on 
 the same day in two cases against different 
 defendants, and was sworn and testified in 
 each case and was allowed a separate per diem 
 therefor in each case for the same day by the 
 commissioner, is entitled to the separate per 
 diem as allowed. (14 Comp. Dec, 378.) 
 
 A witness who attends before a United States 
 commissioner in Kentucky in different cases 
 on the same day is entitled under section 848, 
 Revised Statutes, to 5 cents a mile for each 
 mile he actually travels in going from his place 
 of residence to the place of hearing, and 5 cents 
 a mile for returning, but is not entitled to 
 double or constructive mileage. (15 Comp. 
 Dec, 796.) 
 
 Voluntary attendance of witness. — 
 Where a person voluntarily present at proceed- 
 ings before a United States commissioner is 
 called upon to testify, he is entitled for his 
 services as such witness to the usual per diem, 
 but not to mileage. (11 Comp. Dec, 792.) 
 
 Amount of fees can not be exceeded. — 
 Section 848 is mandatory and limits the amount 
 that may be paid to any witness under ordi- 
 nary circumstances, however much said wit- 
 ness may lose in obeying a summons of a court. 
 Accordingly, held that a Chinese in.spectorin 
 charge is not entitled to reimbursement for an 
 
 amount paid by him to a railroad employee 
 residing within the jurisdiction of the court's 
 process for loss sustained by such employee by 
 reason of his serving as a witness for the Gov- 
 ernment in Chinese-exclusion cases, for which 
 service such employee received from the Gov- 
 ernment fees and mileage as provided bv sec- 
 tion 848. (12 Comp. Dec, 660; see also 6 Op. 
 Atty. Gen., 356.) 
 
 Additional allowance to witness outside 
 of jurisdiction. — If the Secretary of the Treas- 
 ury, in the exercise of his discretion, deems it a 
 necessary expense in the enforcement of the 
 Chinese-exclusion acts, the sum of $68 may be 
 paid from the appropriation for enforcing said 
 acts, to secure the attendance in a Chinese 
 smuggling case of an important witness living 
 in Mexico, who refuses to attend without such 
 payment. (4 Comp. Dec, 106.) 
 
 The appropriation for expenses of collecting 
 the revenue from customs is applicable to the 
 compensation and expenses of witnesses under 
 agreements to come within the jurisdiction of 
 the courts, and the expenses incurred by an 
 assistant district attorney in collecting evidence 
 when the testimony of the witnesses and the 
 evidence collected are necessary in proceedings 
 for the forfeiture of goods seized by customs 
 officers. (4 Comp. Dec, 519.) 
 
 The Secretary of the Treasury is authorized 
 to enter into an agreement to compensate a 
 witness whose testimony is necessary in the 
 prosecution of a smuggler, for coming within 
 the jurisdiction of the courts, and to reimburse 
 him for the necessary expenses incurred in 
 performing the service. The appropriation for 
 prevention and detection of frauds upon the 
 customs service is applicable to the expenses 
 of procuring evidence to be used in the prosecu- 
 tion of a smuggler. (4 Comp. Dec, 495.) 
 
 If the Secretary of Commerce and Labor in the 
 exercise of his discretion deems it a necessary 
 expense in the enforcement of the alien im- 
 migration act, the sum of $3.50 per day may 
 be paid by him from the appropriation for the 
 expenses of regulating immigration to secure 
 the attendance of a witness living in Mexico 
 who refuses to attend unless paid that amount 
 in addition to the witness fee provided for by 
 section 848 of the Revised Statutes. (12 Comp. 
 Dec, 438, citing 4 Comp. Dec, 106.) 
 
 A United States commissioner has no au- 
 thority to issue process to be served outside of 
 his district. Accordingly, a witness attending 
 a hearing before a commissioner in a district 
 other than that of the residence of such witness 
 is entitled to mileage only from a point within 
 the commissioner's district nearest the resi- 
 dence of the witness to the place of the hearing 
 and return therefrom to said point; if the sub- 
 poena is issued in such case by a United States 
 court, whose process runs into any other district, 
 the witness would be entitled to mileage for 
 going from his residence to the place of hearing 
 and returning therefrom. (14 Comp. Dec, 
 752.) 
 
 A United States commissioner is not au- 
 thorized to issue a subpoena for a witness outside 
 of his district, and a witness attending before 
 a commissioner upon a subpoena issued by 
 him is entitled to mileage for travel within 
 his district only. (9 Comp. Dec, 121.) 
 
 54641°— 22 27 
 
 411 
 
Sec. 848. 
 
 Ft. 2. REVISED STATUTES. 
 
 The Judiciary. 
 
 A subpoena issued under section 4 of the 
 act of January 31, 1903 (32 Stat., 790, relative 
 to depositions for use before registers and re- 
 ceivers of the land ollice) does not run outside 
 of the county in which the witness resides; 
 and when a witness in obedience to such 
 subpoena testifies in another county, said wdt- 
 ness is entitled only to mileage from his resi- 
 dence to the border of the county nearest to 
 the pliice where the deposition is taken. 
 (17 Oomp. Dec, 983.) 
 
 Expense of witness in preparing to tes- 
 tify. — Wlien it becomes necessary for a witness 
 to proceed from (^hicago to New York and 
 return, for the purpose of refreshing his memory 
 before testifying in an antitrust case in Chicago, 
 compensation and expense of travel by such 
 witness may be paid from the appropriation 
 "Enforcement of the Anti-Trust laws, etc., 
 1912. " This preliminary preparation could not 
 h ave been rec^uired of him under his obligation 
 as a witness m the case, and he did not. by 
 reason of this employment, become entitled to 
 the fees and mileage allowed by law to wit- 
 nesses. He is entitled, however, subject to 
 the Attorney General's approval, to such com- 
 pensation as may have been agreed upon, 
 whether fixed by reference to fees of witnesses 
 or otherwise. The appropriation for fees of 
 witnesses is clearly not applicable, as it applies 
 only to mileage and attendance in court or 
 before any officer pursuant to law. The ex- 
 pense was incident to the preparation of the 
 case rather than to its trial. (18 Comp. Dec, 
 541.) 
 
 Expert witnesses.— A witness is one who 
 may be compelled to testify concerning a trans- 
 action which he has fortuitously beheld; an 
 expert is one who testifies as to his own self- 
 acquired knowledge, which he can not be com- 
 pelled to impart by the expedient of calling 
 him as a -witness. (In re Maj. William Smith, 
 24 Ct. Cls., 209; 0. M. O. 19-1915, p. 4.) 
 
 The Government can not acquire the serv- 
 ices, skill, or knowledge of an expert without 
 his consent and without just compensation. 
 (In re Maj. William Smith, 24 Ct. Cls., 209.) 
 
 The employment of experts before a court- 
 martial is within the legal and proper discretion 
 of the Secretary of War, and his order to employ 
 and pay them is official authority to an officer 
 who, in the ordinary discharge of his duty, 
 makes such payments, and protects him from 
 the summary remedy of having his pay stopped . 
 (In re Maj . William Smith, 24 Ct. Cls. , 209. As 
 to emplojTTient of expert witnesses by accused 
 before na^al courts-martial, see note to Consti- 
 tution, sixth amendment.) 
 
 Where a civilian physician was subpoenaed to 
 attend before a naval court of inquiry as an 
 ordinary witness to testify to facts within his 
 knowledge, he is entitled merely to ordinary 
 witness fees, notwithstanding that in the course 
 of his examination his testimony may have de- 
 veloped into the nature of expert testimony. 
 In both civil and military courts, compensation 
 for expert testimony is a matter for determina- 
 tion between the witness and the party calling 
 him for such testimony. In the Na\^% if the 
 testimony of an expert, as such, is desired, the 
 question is one which must be submitted in 
 each specific instance to the Navy Department 
 
 for its determination as to whether the circum- 
 stances warrant the expenditure. In this case, 
 the judge advocate having summoned the 
 claimant as an ordinary witness, and having no 
 authority to summon him for any other purpose, 
 the claim for compensation as an expert witness 
 can not be approved. (File 26276-105, Mar. 
 16, 1915.) 
 
 The compensation of expert witnesses, the 
 expenses of collecting evidence, and the pur- 
 chase and preparation of exhibits in connection 
 with suits against collectors of customs may, 
 under the long-established practice, be paid 
 from the appropriation made for the expenses 
 of collecting the revenue from customs. (1 
 Comp. Dec, 249.) 
 
 An expert witness summoned to appear 
 before the Board of United States General Ap- 
 praisers may be allowed, in addition to the 
 ordinary witness fees, such sum as the Secretary 
 of the Treasury may direct, payable from the 
 appropriation for collecting the revenue from 
 customs. (2 Comp. Dec, 449.) 
 
 Where the employment of expert witnesses 
 is necessary to properly enforce the pm-e food 
 and drugs act, the Secretary of Agriculture is 
 authorized to employ and pay such expert wit- 
 nesses from the appropriations made to caiTy 
 into effect the pro\isions of said act. (15 
 Comp. Dec, 757.) 
 
 Interpreter not witness. — The expenses 
 of a person M'ho did not attend as a witness in 
 the case, but who was present as an "inter- 
 preter," are not chargeable to the appropriation 
 "Fees of witnesses, United States courts," but 
 to the appropriation "Miscellaneous expenses, 
 United States courts," upon the authorization 
 and approval of the Attornev General. (16 
 Comp. Dec, 92.) 
 
 Increased allowances in certain States. — 
 The act of August 3, 1892 (27 Stat., 347, super- 
 seded by act of May 27, 1908, sec. 1, 35 Stat., 377, 
 noted above), does not apply to witnesses at- 
 tending before United States commissioners, as 
 such proceedings are not in any court of the 
 United States. (2 Comp. Dec, 66.) 
 
 Larger fees and mileage are allowed to wit- 
 nesses in some districts than in others, because 
 local conditions make the hardships and ex- 
 pense of travel greater. The reason does not 
 apply where the deposition of a witness is taken 
 elsewhere for use in one of the districts where 
 the larger allowance is paid witnesses for testi- 
 fying therein. The act of January 31, 1903 (32 
 Stat., 790), relating to compulsory attendance 
 of witnesses before registers and receivers of the 
 land office, provides that when the witness 
 resides outside of the county in which the 
 hearing is held, any party to the proceedings 
 may take his testimony by deposition in the 
 county of his residence, and provides further 
 that such witness "shall receive the same fees 
 and mileage, and be subject to the same pen- 
 alties in all respects, as in cases of the \'iolation 
 of sul)poena to appear l)efore the register or 
 receiver and subject to the same limitations." 
 The act provides that the fees and mileage of 
 witnesses l^ef ore a register or receiver ' ' shall be 
 the same as that provided by law in the district 
 courts of the United States in the district in 
 which such land offices are situated." Held, 
 that a witness whose deposition is taken under 
 
 412 
 
The Judiciary. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 850. 
 
 the act of January 31, 1903, for use in a hearing 
 before a register or receiver of the General Land 
 Office is entitled to the fees allowed to witnesses 
 in the United States district court in the district 
 in tvhich the deposition is taken. (20 Com p. 
 Dec, 308, overruling 16 Comp. Dec, 153, which 
 held that witnesses residing in New York City, 
 while testifying in the county of their residence 
 by deposition before a commissioner under ap- 
 pointment issued by the authorized ofhcers of 
 the land office in Wyoming, are entitled to $3 
 a day, payable in advance if necessary to secure 
 their testimony, this being the amount allowed 
 by the act of May 27, 1908, for witnesses in 
 Wyoming, and the law providing that wit- 
 nesses in proceedings before registers and re- 
 ceivers shall be entitled to the same fees as 
 provided by law in the district court of the 
 United States in the district in which such 
 land offices are located.) 
 
 Such witness, testifying by deposition in 
 Alaska, is entitled to the witness fees allowed 
 in the United States district court in the judi- 
 cial division of the district of Alaska in which 
 the deposition is taken. (20 Comp. Dec, 
 
 308.) 
 
 Witness against the United States. — As 
 a general rule, when the United States is a 
 party to a suit it is not liable to pay costs in- 
 curred by the adverse party, even though such 
 adverse party prevail in the suit, unless there 
 is an affinnative statute clearly making the 
 United States liable therefoi-. (16 Comp. Dec, 
 693.) 
 
 The act of Augustl, 1888 (25 Stat., 357), re- 
 lating to condemnation proceedings to acquire 
 sites for public bu'ldings, does not imply that 
 the United States should stand upon the same 
 footing in a State as would a quasi public cor- 
 poration, or other artificial entity with refer- 
 ence to the payment of costs. (16 Comp. Dec, 
 693.) 
 
 When the defendant in condemnation pro- 
 ceedings has incurred expenses in procuring 
 the attendance of witnesses upon the day set 
 for trial, and the case was on said day continued 
 upon motion of the district attorney and was 
 subsequently dismissed at the request of the 
 Government, and there is no Federal or State 
 statute clearly authorizing the taxing of de- 
 fendant's costs against the Government or their 
 payment by the Government , such expenses are 
 not legally payable from Government funds. 
 (16 Comp. Dec, 693.) 
 
 When land has been condemned and the court 
 in rendering judgment includes in said judg- 
 ment or award certain costs, such judgment in- 
 cluding the costs, would be a legal charge 
 against the appropriation to acquire the site 
 when the payment of the judgment was made 
 a condition precedent to vesting title in the 
 Government. (16 Comp. Dec, 693.) _ 
 
 Nothing said in the above decision isintended 
 to relieve the judicial appropriations from the 
 payment of fees to witnesses subpoenaed by 
 and for the United States, and who attend 
 court as witnesses for the Government in con- 
 demnation proceedings, when such witnesses 
 are paid by the marshal upon order of the 
 court. (16 Comp. Dec, 693.) 
 
 For other cases, see "Courts-martial," under 
 section 850, Revised Statutes, "II. Witnesses 
 for the Government." 
 
 Appropriation from which paid. — A wit- 
 ness summoned to appear before the board of 
 United States General Appraisers is entitled 
 to the allowances for witnesses prescribed in 
 section 848, Revised Statutes, payable from the 
 appropriation for collecting the revenue from 
 customs. (2 Comp. Dec, 449.) 
 
 For other cases, see decisions noted above 
 under this section; and see note to section 
 850, Revised Statutes, under "V. Appropria- 
 tion from which Paid." 
 
 Sec. 849. [No officer of court to have witness fees.] No officer of the United 
 States courts, in any State or Territory, or in the District of Columbia, shall be 
 entitled to witness fees for attending before any court or commissioner where 
 he is officiating.— (16 Aug., 1856, c. 124, s. 8, v. 11, p. 50. 21 July, 1852, c. 66, 
 s. 1, V. 10, p. 16, (22).) 
 
 Sec. 850. [Witnesses in Government service allowed actual expenses.] 
 When any clerk or other officer of the United States is sent away from his place 
 of business as a witness for the Government, his necessary expenses, stated in 
 items and sworn to, in going, returning, and attendance on the court, shall be 
 audited and paid; but no mileage, or other compensation in addition to his 
 salary, shall in any case be allowed. — (26 Feb., 1853, c. 80, s. 3, v. 10, pp. 
 167, 168.) 
 
 Witness fees in general — see note to section 848, 
 
 Revised Statutes. 
 Expenses of subsistence limited to $5 per day. 
 
 (Act Apr. 6, 1914, 38 Stat., 318; 22 Comp. 
 
 Dec, 484.) 
 
 I. What Persons Included. 
 II. Witness for the Government. 
 
 III. Nature of Proceedings. 
 
 IV. Character op Expenses Allowed. 
 V. Appropriation from Which Paid. 
 
 I. What Persons Included. 
 
 The words "clerk or other officer" must 
 be construed in the broad sense of "official," 
 and includes an employee. (9 Comp. Dec, 276; 
 17 Comp. Dec, 586: 22_Comp Dec, 126.) 
 
 The word "officer" in this section has been 
 construed in the broad sense of "ofiicial" and 
 includes an employee. (18 Comp. Dec, 896, 
 citing 5 Comp. Dec, 797; 9 Comp. Dec, 276; 
 17 Comp. Dec, 584.) 
 
 413 
 
Sec. 850. 
 
 Pt.2. REVISED STATUTES. 
 
 The Judiciary. 
 
 A department clerk when subcepnaed to 
 testify on behalf of the United States has no 
 rif2:ht to witness fees, but his expenses are allow- 
 able. (21 t)p. Atty. Gen., 263.) 
 
 See below, "Persons in Army and Navy." 
 
 Waiver of salary. — An oflicer or employee 
 for whom a salary i.s provided by law can not, 
 by relinquishing his salary, become entitled to 
 fees or mileage as a witness for the Govern- 
 ment. (9 Comp. Pec, 27G.) 
 
 Persons in Army and Navy. — An officer 
 of the NaA^ who travels to testify as a witness 
 for the Government is entitled, under this sec- 
 tion, to his actual and necessary expenses only, 
 notAvithstanding that such officer may have 
 been ordered by his superior officer to travel 
 for that purpose. (19 Comp. Dec, 752, cit- 
 ing 4 Comp. Dec, 147; but see below, "Courts- 
 martial," under "III. Nature of Proceedings." 
 
 These general statutes regulate the fees for 
 attendance as witnesses before civil courts, and 
 the compensation to Army and Navy officers 
 for attendance as witnesses before such courts 
 must conform to them, whether the attendance 
 is in obedience to a subpoena or to an order 
 from the head of their department. (10 Comp. 
 Dec, 55, citing 4 Comp. Dec, 146, and Dig. 
 Sec. Comp., vol. 2, sec. 1211.) 
 
 This section is found under the title of "The 
 Judiciary" in the Revised Statutes, and un- 
 doubtedly applies to clerks and officers of the 
 United States who are witnesses before the 
 Federal civil courts. (Comp. Dec. Apr. 14, 
 1914, file 26254-1476:1.) 
 
 "The word 'officer' in this section is to re- 
 ceive a liberal construction. It does not im- 
 port an officer as distinguished from a soldier, 
 but any person who is an employee or is in the 
 service of the United States, in however humble 
 a capacity." (16 Op. Atty. Gen., 113, holding 
 that Army officers and enlisted men who appear 
 as witnesses for the Government before any 
 court of the United States are entitled to 
 receive their necessary expenses in going, 
 returning, and attendance on the court, and 
 are not entitled to any mileage or witness fees; 
 see also 15 Op. Atty. Gen., 486; 16 Op. Atty. 
 Gen., 147; 17 Comp. Dec, 584.) 
 
 Retired oflB.cers. — A retired Army officer 
 who is called to testify before a civil court as a 
 witness for the United States is entitled to 
 lawful fees as a witness and not to actual ex- 
 penses as provided by section 850 of the Re- 
 vised Statutes. (19 Comp. Dec, 966, following 
 10 Comp. Dec, 51, holding that retired officers 
 are not within the purview of section 850 be- 
 cause not subject to orders to testify as wit- 
 nesses. In this connection, see act of August 22, 
 1912, 37 Stat., 329, providing that retired offi- 
 cers of the Navy and Marine Corps may, with 
 their consent, be ordered to any active duty at 
 sea or on shore. And see below, "Courts- 
 martial," under " III. Natureof Proceedings.") 
 
 A Naval Militia member subpoenaed as a 
 witness before a naval court-martial when his 
 organization is not in the service of the United 
 States is in the status of a civilian witness, not 
 in Government employ, and he is entitled to fees 
 and mileage accordingly. (File 26251-10968: 9, 
 Dec 1, 1915; 26276-119, Dec. 22, 1915. See 
 below, "Courts- martial," under "III. Nature 
 of Proceedings.") 
 
 United States Senators. — The provision 
 in section 850, Revised Statutes, does not 
 apply to Senators of the United States. To fall 
 within its terrns the clerk or officer must have 
 a place of business and be sent away therefrom, 
 indicating very clearly that class of officials 
 who occupy subordinate positions and are sub- 
 ject to the control and direction of their supe- 
 rior officers. It is hardly necessary to add that 
 United States Senators are not of this class. 
 Such witnesses are accordingly entitled to the 
 compensation fixed by section 848, Revised 
 Statutes. (7 Comp. Dec, 764. As to compul- 
 sory attendance of Senators and Representa- 
 tives as witnesses in judicial proceedings, see 
 note to Constitution, Art. I, sec. 6, clause 1.) 
 
 Federal prisoners. — A person in custody 
 awaiting trial for an alleged offense who at- 
 tended before a United States commissioner as 
 a witness is entitled to the fee provided by law 
 for such attendance. He is not, however, 
 entitled to mileage for at least two reasons: 
 First, the Government necessarily bears the 
 expenses of his transportation, if there are 
 such, from the jail to the place where he testi- 
 fies; second, the jail can not be said to be his 
 place of residence. (6 Comp. Dec, 588.) 
 
 However, where a person in custody has been 
 convicted of crime, has forfeited his residence, 
 and his time and services belong to the Gov- 
 ernment, which is charged with his care and 
 support while imprisoned in a penitentiary or 
 jail, per diem for attendance and mileage are 
 not allowable. (6 Comp. Dec, 588.) 
 
 If a convicted person were called upon to 
 testify in a civil suit, the Government would 
 be entitled to charge for and collect, as against 
 the person subpoenaing him as a witness, a per 
 diem on account thereof, as his services laelong 
 to the Government. (6 Comp. Dec, 588.) 
 
 Temporary employee. — A temporary mail 
 weigher is an employee of the United States, 
 and if said mail weigher is subpoenaed to tes- 
 tify in a United States district court on behalf 
 of the Government, he is entitled to be paid 
 his actual and necessary expenses in addition 
 to his regular compensation as mail weigher, 
 while going to, returning from, and attendance 
 on the court. (18 Comp. Dec, 896.) 
 
 A person who has been paid $3 for a day's 
 service as bailiff under a United States mar- 
 shal, is not entitled to the statutory fee of $1.50 
 for his attendance as a witness for the Govern- 
 ment before a United States commissioner on 
 the same day. After adjournment of the court, 
 he was summoned and attended as a witness 
 before the commissioner. However, the per 
 diem allowed him as bailiff covered his time 
 and services as baiUff for an entire day, and the 
 adjournment of the court did not release him 
 from liability to serve for the remainder of the 
 day for which he was paid. (22 Comp. Dec, 
 126.) 
 
 Private clerk of Government ofllcial. — 
 "The theory of the statute manifestly is that 
 where the Government is entitled to an officer's 
 time, the diversion of it from his official routine 
 to attend in court as a witness in its behalf shall 
 not entitle him to dual compensation. The 
 court does not overlook the fact that a marshal's 
 clerk is appointed by him and that his com- 
 pensation is conditional and dependent upon 
 
 414 
 
The Judiciary. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 850. 
 
 the fees and emoluments of the marshal's 
 office * * * ; but nevertheless the service is 
 rendered for the government, the expense is 
 additional to the marshal's compensation, and 
 the money with which the clerk is paid is the 
 money of the Government and would other- 
 wise go into the Treasmy. The marshal, 
 therefore, is not the employer but the appoixit- 
 ing power, and his chief clerk is as much an 
 employee of the Government as is the private 
 secretary of the President." (Duval v. U. S., 
 23 Ct. CIs., 102; 17 Comp. Dec, 584.) 
 
 A person emploA'ed by a postmaster, who re- 
 ceives a fixed salary without any allowance for 
 clerk hire, and who himself pays such person 
 as his deputy, is not a "clerk or ofHcer of the 
 United States" within the meaning of this sec- 
 tion, (In re Waller, 49 Fed. Rep., 271.) 
 
 District of Columbia employee. — Officers 
 and employees of the District of Columbia are 
 not officers or employees of the United States 
 within the meaning of this section; they are 
 accordingly entitled to the fees allowed by law 
 to other witnesses, unless it is a part of their 
 official duty under their appointments to at- 
 tend and testify in proceedings of the character 
 involved. (18' Comp. Dec, 382, citing 17 
 Comp. Dec, 153.) 
 
 II. WnXESS FOR THE GoVERXMEXT. 
 
 No testimony given. — An officer of the 
 Na\y was ordered to "proceed to Norfolk, Va., 
 and on December 27, 1912, confer with the 
 district attorney. Upon the completion of this 
 conference report to the commandant of the 
 navy yard for temporary duty as witness before 
 a court of inquiry at the station under his com- 
 mand." The Auditor for the Navy Depart- 
 ment held that the travel involved was pri- 
 marily performed in order that claimant might 
 testifj' on behalf of the Government in the 
 United States Court for the Eastern District of 
 Virginia. This ruling was reversed by the 
 Comptroller of the Treasury, who decided that 
 there was nothing in the orders in ciuestion to 
 direct the officer to appear as a witness in the 
 United States District Court for the Eastern 
 District of Virginia, and the officer stated that 
 he did not so appear. Accordingly, held that 
 the officer was entitled to mileage for the travel 
 in ciuestion, and that section 850, Ile\-ised Stat- 
 utes, was not applicable thereto. (Comp. Dec. 
 Apr. 14, 1914, file 26254-1476:1; see below, 
 "Courts-martial," under "III. Nature of Pro- 
 ceedings.") 
 
 An officer of the Navy ordered to perform 
 travel in order that he might be present to 
 testify, if needed, in a suit to which the Gov- 
 ernment was not a party, but in which it had 
 sufficient interest to make it nece.^sary, or at 
 least advisable, in the opinion of the Secretary 
 of the Na^y , for the officer to be present, could 
 not be considered as a witness for the Govern- 
 nient within the meaning of section 850, Re- 
 vised Statutes. In performing the travel in 
 question appellant should be regarded as travel- 
 ing on public business under orders of the Sec- 
 retary of the Na-vy, and entitled to mileage 
 accordinglv. (Comp. Dec, July 28, 1915, 173 
 S. and A. Memo., 3729.) 
 
 Identifying party under charges. — A 
 clerk in the Na\-y Department who performed 
 
 travel to New York City, at the request of the 
 police department of the District of Columbia, 
 for the purpose of identif^-ing and securing the 
 arrest of a party wanted for trial in the District 
 of Columbia upon charges of larceny and big- 
 amy, was not in the status of a witness for the 
 Government during her absence from duty for 
 the purpose stated. (File 4488-61, June 24, 
 1911.) 
 
 Witness for private party. — \\'hen sub- 
 poenaed by a private party a department clerk 
 may demand and accept witness fees. (21 Op. 
 Atty. Gen., 263.) 
 
 A naval officer giving expert testimony in a 
 suit between private parties may receive com- 
 pensation therefor at the usual rates, in accoid- 
 ance with his agreement with the party for 
 whom he appeared. (File 1981-1900; see" also 
 file 6053, Oct. 30, 1906; and file 26276-125, Nov. 
 22, 1915.) 
 
 An employee of the Navy Department v>-ho 
 attends com-t as a witness otherwise than as a 
 witness for the Government is not entitled to 
 draw salary during the period absent from work, 
 unless such absence is charged to his annual 
 leave. (File 6036-2. Apr. 5, 1907.) 
 
 Witness against the Government. — 
 Wliere a naval constructor appeared as a wit- 
 ness in behalf of the defendant, the complain- 
 ant being the United States, he was informed 
 that there appeared from the facts stated to be 
 no reason why he should not accept "ordinary 
 mileage and attendance fees." (File 4565-4, 
 Oct. 23, 1906.) 
 
 Courts-martial. — This section clearly recog- 
 nizes the fact that persoios in the employ of the 
 Government may be called upon to testify 
 before the courts in matters not necessarily 
 connected with the service for which they are 
 paid, and that their salaries shall continue 
 while so absent from their regular duties. Since 
 no distinction is made in miLitar\' courts be- 
 tween payment of witnesses, whether for or 
 against the Government, it must be held that 
 they are equally entitled to their salaries while 
 in attendance before a military' court, if they 
 were acting under proper orders, although they 
 appeared as witnesses for the accused. Their 
 attendance was reciuired at this court-martial 
 by proper subpoena issued by the judge advo- 
 cate of the court. It was requested by the 
 Secretary of War in a letter addressed to the 
 Secretary- of State. The Secretary of State 
 ordered them, through the proper channels, to 
 attend the trial and at the same time directed 
 that they be retained in the employ of the 
 Government and receive their compensation 
 during their attendance. Accordingly, held 
 that they were entitled to their salaries until 
 the time they were discharged from attendance 
 upon the court-martial, and that the same 
 should be paid from the appropriations for their 
 regular duties with the Nicaragua Canal Com- 
 mission. (5 Comp. Dec, 797.) 
 
 III. Nature of Proceedixgs. 
 
 Coxirts-martial. — Civilian employees of the 
 United States subpoenaed on behalf of the Gov- 
 ernment as witnesses before naval courts are not 
 entitled to mileage or per diem as witnesses, 
 but to their regular salaries and actual and 
 necessary expenses only, their rights being con- 
 
 415 
 
Sec. 860. 
 
 Pt.2. REVISED STATUTES. 
 
 The Judiciary. 
 
 trolled by section 850 of the Revised Statutes. 
 (14 Comp. Dec, 143; see also, 1 Comp. Dec, 
 79. noted under sec 848, R. S.) 
 
 A per diem employee of a navy yard is en- 
 titled to his actual and necessary expenses 
 while attending under orders as a v-itness before 
 a court of inquiry and while going to and re- 
 turning from the court. (8 Comp. Dec, 211.) 
 
 This section does not apply to military olli- 
 cers when witnes.ses before military courts; it 
 appears under the title of vThe .Judiciary," 
 in the Re\dsed Statutes, and undoubtedly ap- 
 plies to clerks and ofliccrs of the I'nited States 
 when witne&''es before the Federal civil courts; 
 accordingly, held that an officer of the Na^'y is 
 entitled to mileage for travel ]ierfornied under 
 orders for the purpose of appearing as a witness 
 before a naval court of inquiry. (Comp. Dec. 
 Apr. 14, 1914, file 20254-1470:1; see above, "No 
 testimony given," under "II. Witness for the 
 Government.") 
 
 A contract surgeon in the Army who is di- 
 rected by special orders to attend as a witness 
 before a general court-martial by which he had 
 been duly summoned is not entitled to reim- 
 bursement of expenses as a civilian employee 
 of the Government, but is limited to the mile- 
 age allowance payable to commi.s.sioned officers 
 traveling under orders. (9 Comp. Dec, 461.) 
 
 Section 850, Re^'ised Statutes, has never, so 
 far as I am aware, been applied in fixing the com- 
 pensation of officers of the Army and Navy on 
 the active List for attendance as witnesses be- 
 fore general courts-martial, when in attendance 
 in obedience to orders: and I know of no reason 
 why it should apply in the case of a retired offi- 
 cer if it does not apply to an officer on the active 
 list. The retired officer has no place of business 
 to be sent away from, within the meaning of 
 that section, and he is not an officer subject to 
 be ordered to such duty, and is not, therefore, 
 within the purview of the said section. (10 
 Comp. Dec, 55, citing 7 Comp. Dec, 764.) 
 
 A retired officer of the Army is not entitled 
 to commutation of quarters while in attendance 
 as a witness before a general court-martial, but 
 he is entitled to the per diem compensation and 
 mileage provided for civilian witnesses not in 
 the employ of the Government. (10 Comp. 
 Dec, 51.) 
 
 A summons to a retired officer of the Navy to 
 attend as a witness before a general court-mar- 
 tial does not place him on active duty, and he is 
 not, therefore, entitled to the difference be- 
 tween active duty and retired pay in conse- 
 quence thereof. (5 Comp. Dec, 244. At the 
 time this decision was rendered retired officers 
 of the Naw could not be ordered to active duty 
 except in time of war; accordingly, it had been 
 held by the accounting officers (Dig. Sec 
 Comp. Dec, vol. 2, sec. 1211) that in time of 
 peace officers on the retired list of the Navj'- 
 while attending upon courts-martial as wit- 
 nesses were not entitled to active-duty pay. 
 This case arose in time of war, but it was held 
 that the effect of an ordinary summons to at- 
 tend as a witness before a court-martial in time 
 of war, even though approved by the Secretary 
 of the Navy, did not place the officer in any 
 different position than he would have occupied 
 had the summons been Lssued and the travel 
 performed in time of peace. An order which 
 
 places a retired naval officer upon duty in time 
 of war should clearly express such intention, 
 and no such intention can properly be imputed 
 in the case of an ordinary summons to attend 
 as a witneas, approved by the Secretary of the 
 Navy after it is issued. The existing law, 
 act of Aug. 22, 1912, 37 Stat., 329, provides that 
 retired oflicers of the Na\'y and Marine Cori)8 
 mav, with their consent, be ordered to any 
 active duty at sea or on shore.) 
 
 A member of the Naval Militia subpoenaed 
 as a witness before a naval court-martial is not 
 thereby called into the service of the United 
 States under the provisions of the Constitution 
 (Art. I, sec 8, clause 15) and the Naval ]\Iilitia 
 Act of Feb. 10, 1914, sec. 3 (38 Stat., 284). He 
 is not, therefore, by virtue of such subpoena 
 entitled to the pay and allowances provided 
 for the Naval Militia when called into the serv- 
 ice of the United States. (File 26270-119:3, 
 Jan. 20, 1910.) 
 
 See cases noted above, under "I. "WTiat Per- 
 sons Included." 
 
 In courts-martial the United States pays not 
 only its own witnesses but the witnesses of the 
 accused; accordingly, while section 850 refers 
 directly to witnesses for the Government, the 
 fact that all witnesses before military courts 
 are paid by the Government bring the latter 
 within the spirit of this section. (5 Comp. 
 Dec, 802. See note to Constitution, sixth 
 amendment, as to compulsory process for ob- 
 taining -witnesses in behalf of the accused before 
 naval courts-martial.) 
 
 District of Columbia coiu'ts. — Salaried 
 employees of the Government are not entitled, 
 under the provisions of section 850 of the 
 Revised Statutes, to witness fees for attendance 
 as witnesses on behalf of the United States before 
 a United States grand jury in the District of 
 Columbia. Accordingly, held that a clerk in 
 the Treasury Department at Washington, D. C, 
 is not legally entitled to witness fees, either per 
 diem or mileage, for her attendance before the 
 United States grand jury, Supreme Court of the 
 District of Columbia, as a witness on behalf of 
 the United States. (17 Comp. Dec, 282.) 
 
 Salaried officers or employees of the United 
 States who attend before the Supreme Court 
 of the District of Columbia as witnesses for tlie 
 Government are not entitled to the compensa- 
 tion proAdded by law for witnesses who are not 
 such officers or employees. (18 Comp. Dec, 
 382, citing 17 Comp. Dec, 282; see above, 
 "Identifying party under charges," under 
 "II. Witness for the Government.") 
 
 State courts. — The actual expenses of 
 officers of the Army in attending, by authority 
 of the Secretary of War, upon a State court as 
 witnesses for the United States in a case in 
 which the United States is a party, may be paid 
 from the approj)riation for contingent expenses 
 of the War Department. (12 Comp. Dec, 649; 
 see above, "No testimony given," under 
 "II. Witness for the Government.") 
 
 Extradition proceedings before commis- 
 sioner. — An employee of the Government is 
 not entitled to mileage and fees, but only to 
 actual and necessary expenses, for attendance as 
 a witness before a United States commissioner 
 in extradition proceedings instituted in the 
 name of the United States. (llComp. Dec, 605.) 
 
 416 
 
The Judiciary. 
 
 Pt.2. RE VISED STAT UTES . 
 
 Sec. 850. 
 
 Justice of the peace.— This section applies 
 to payment of -witnesses in attendance upon a 
 preliminary hearing before a justice of the 
 peace. (16 Comp. Dec, 92.) 
 
 Civil Service Commission. — A civil-service 
 employee of the War Department on duty in the 
 ordnance office at Frankford Arsenal, Philadel- 
 phia, Pa., who appears as a witness before the 
 Civil Service Commission in obedience to a 
 duly authorized summons of the commission 
 under Civil Service Rule XIV approved by the 
 President, should, while going to, attending on, 
 and returning from the commission be treated 
 as in a duty status, and as in the performance 
 of duty under his employment, and should be 
 paid accordingly from the appropriation for the 
 ordnance service. (18 Comp. Dec, 135.) 
 
 IV. Character of Expenses Allowed. 
 
 Employment of a substitute. — The neces- 
 sary expenses of travel, board, and lodging of 
 salaried employees of the Government attend- 
 ing a United States court or before a United 
 States commissioner as witnesses on behalf of 
 the Government, are usually payable, under 
 section 850 of the Revised Statutes, from the 
 appropriation for "Fees of witnesses. United 
 States courts"; but there is no provision for 
 the payment of the hire of a substitute whom it 
 may be necessary to engage by reason of the 
 salaried employee's absence. (16 Comp. Dec, 
 630.) 
 
 Section 850, Revised Statutes, does not 
 authorize the payment to a consul of an amount 
 paid by him as compensation to his vice consul 
 while in charge of the consulate during the 
 absence of the consul as such witness. (9 Comp 
 Dec, 521.) 
 
 This section provides for the ordinary and 
 usual expenses of' the witness, and does not 
 include the loss of salary because of such 
 absence. The items of expense of such a wit- 
 ness are his necessary traveling expenses in 
 going and retiuning, and his necessary expenses 
 while in attendance upon the court. (9 Comp. 
 Dec, 521.) 
 
 Leave of absence. — A per diem employee 
 of a navy yard is entitled to his compensation 
 as such per diem employee, and actual expenses 
 while attending imder orders a court of inc^uiry 
 as a witness, and while going to and returning 
 from the court; and the time he is so absent 
 from his emploATuent is not to be deducted from 
 the time for which he may be granted leave of 
 absence. (8 Comp. Dec, 211.) 
 
 Employees of the Navy Department attend- 
 ing as witnesses for the Government, as to leave 
 to which they may be entitled by law, are in 
 the same status as if they had been actually at 
 work at their regular place of work and had not 
 been absent as such witnesses. (17 Comp. 
 Dec, 584.) 
 
 Employees of the Navy Department who at- 
 tend court as mtnesses otherwise than as wit- 
 nesses for the Government are not entitled to 
 draw salary during the period absent from work 
 unless charged to annual leave. (File 6036-2, 
 Apr. 5, 1907. But see 5 Comp. Dec, 797, noted 
 below, as to witnesses for accused in court- 
 martial cases.) 
 
 An employee of the Na\-y Department ab- 
 sent from duty at the request of the police 
 
 department of the District of Columbia, for the 
 purpose of identifying and securing the arrest 
 of a person in New York wanted for trial in the 
 District for larceny and bigamy, is not within 
 the pur\dew of the decision of the Comptroller 
 which treats employees of the Governrnent as 
 in a duty status when in attendance as witnesses 
 for the Government in Federal courts. The 
 absence from duty in such case should, there- 
 fore, be charged to the employee's leave. 
 (File 4488-61, June 23, 1911.) 
 
 An employee of the War Department should 
 be treated as in a duty status while going to, 
 attending on, and retmrning from an inquiry 
 by the Civil Service Commission in obedience 
 to a subpoena issued by the commission. (18 
 Comp. Dec, 135.) 
 
 CiA-ilian employees of the State Department 
 appearing before an Army court-martial, in 
 obedience to a subpoena issued by the judge 
 advocate of the court and proper orders issued 
 by the Secretary of State upon request of the 
 Secretary of War, should be treated as in a 
 duty status, notwithstanding that they were 
 subpoenaed as witnesses against the Govern- 
 ment and for the accused. (5 Comp. Dec, 
 797.) 
 
 While attending as a witness for the Govern- 
 ment in a United States district court, an em- 
 ployee was performing a service for and on be- 
 half of the Government other than the service 
 required under his appointment, and such 
 compulsory absence would not have the effect 
 of relieving him of his pay status for the reason 
 that during that time he is to be regarded as in 
 the performance of duty under his employ- 
 ment and therefore should be paid his regular 
 compensation in addition to liis actual and 
 necessary expenses. (18 Comp. Dec, 896.) 
 
 Witness outside jurisdiction. — ^Where an 
 office deputy marshal attends as a witness before 
 a United States commissioner in a district other 
 than his own, the allowance of his expenses of 
 subsistence is a matter within the discretion of 
 the commissioner, unlimited by the statutory 
 maximum fixed for deputy marshals. (19 
 Comp. Dec. 91.) 
 
 A deputy collector of internal revenue is enti- 
 tled to all necessary and lawful expenses in- 
 ciu-red in attending a hearing before a United 
 States commissioner pursuant to the subpoena 
 of said commissioner, although the hearing is 
 held in a district other than that of the deputy 
 collector's residence. (20 Comp. Dec, 195.) 
 
 It has been held that a witness from another 
 district attending before a commissioner upon 
 a subpoena issued by the commissioner, is not 
 entitled to the mileage provided by section 848, 
 Revised Statutes, for tra^'el outside of the com- 
 missioner's district. (9 Comp. Dec, 121.) 
 This ruling does not apply to ofiicers or em- 
 ployees of the Government whose official duty 
 it is to testify in behalf of the Government and 
 who are bound to attend for that purpose 
 whether in the district in which they_ reside 
 or elsewhere. Such officer or employee is enti- 
 tled to his necessary expenses in going, return- 
 ing, and attending, when sent away from hia 
 place of business as a witness for the Govern- 
 ment. (20 Comp. Dec, 195.) 
 
 See, in this connection, note to section 848, 
 Revised Statutes, relative to expense of bring- 
 ing witnesses within jurisdiction of the court. 
 
 41T 
 
Sec. 850. 
 
 Pt.2. REVISED STATUTES. 
 
 The Judiciary. 
 
 ""■. Appropriation from Which Paid. 
 
 Judiciary appropriation. — The necessary 
 expenses of travel, board, and lodging of sala- 
 ried employees of the Government attending a 
 United States court or before a United States 
 commissioner as witnesses on behalf of the Gov- 
 ernment are usually payable, under section 
 850, Revised Statutes, from the appropriation 
 for "Fees of w-itnesses. United States courts." 
 (leComp.Dec, 630.) 
 
 In 12 Comp. Dec, 391, it was held that the 
 expenses of officers of the United States in- 
 curred in going, returning, and in attendance 
 on courts when sent away from the usual place 
 of the performance of their duties as witnesses 
 for the Government are payable from the ap- 
 propriate fund of the dejiartment from which 
 they are sent, and not from the judicial appro- 
 priation for fees of witnesses. However, this 
 decision is published with a footnote, stating 
 that since it was rendered it had been discoA-- 
 ered that the decision therein relied upon had 
 been overruled by the Supreme Court of the 
 United States. Hence, the necessary expenses 
 of a clerk sent away as a witnees for the Gov- 
 ernment should be audited by the court, taxed 
 as witness fees, and paid in full from the proper 
 judicial appropriation. 
 
 The auditing contemplated by section 850 
 must be done, primarily, in the court in which 
 the case is pending and where it can best be 
 determined what expenses have been neces- 
 sarily incurred by the witness. It was not 
 intended by section 850 to deny to the Govern- 
 ment the right, when successful in a suit, to 
 have even the necessary expenses of witnesses 
 of the class described in that section included 
 in the judgment for costs, nor did the United 
 States intend to remit to its defeated adver- 
 sary not only witness fees for per diem and 
 mileage, but the necessarj' expenses of wit- 
 nesses who happened to be in its employment 
 and whom it sent away from their place of 
 business to testify in its behalf. As a person 
 of that class receives while absent his stipu- 
 lated salary and is paid in that way for his 
 time, it is not deemed just that he should also 
 receive mileage and per diem; but, instead 
 thereof, he is allowed his necessary' expenses, 
 which, being audited by or under the direc- 
 tion of the court upon which he attends as a 
 witness, he is entitled to have paid to him, 
 and the Government, being under an obliga- 
 tion to pay them, is entitled to have the amount 
 so audited included in its bill of costs and in 
 any judgments rendered in its favor. In other 
 words, when the Government is successful in 
 a suit, the "necessary expenses" of its wit- 
 nesses of the class described in section 850 
 take the place in its bill of costs of the per 
 diem and mileage which, but for that section, 
 would have been taxed and allowed in its 
 favor. (U. S. v. Sanborn, 135 U. S., 271.) 
 
 Necessary expenses of soldiers as witnesses 
 for the Government allowed under this section 
 may be paid by marshals upon proper proof 
 thereof. (16 Op. Atty. Gen., 147.) [Enlisted 
 men detained by a United States marshal as 
 witnesses, and by him paid $1.70 per day, are 
 not entitled to rations during the period they 
 were absent from their ship. (File 1098-94.)] 
 
 Where a tiustee in bankruptcy is called to 
 testif)' as an expert witness in a criminal prose- 
 cution, growing out of transactions in connec- 
 tion with the bankrupt estate, the act of August 
 24, 1912 (37 Stat., 402), prohibits the payment 
 to him of any compensation whatever for serv- 
 ices as such expert from the appropriation 
 "Miscellaneous expenses, United States courts, 
 1913." (10 Comp. Dec, 395.) 
 
 Other appropriations available. — "At- 
 tention is invited to the fact that while section 
 850, Revised Statutes, allows a clerk or ofDcerhia 
 actual expenses when sent away from his place 
 of business, it does not provide that such ex- 
 penses shall be paid from the judiciary appro- 
 priations. On the contrary, the inference is 
 that such expenses will be paid from whatever 
 appropriation is applicable." (5 Comp. Dec, 2.) 
 
 Naval appropriation. — The claim of an 
 enlisted man of the Army for reimbursement of 
 expenses incurred in complying with a sub- 
 poena issued by a naval court-martial is a 
 proper charge against the naval appropriation, 
 "Pay, miscellaneous." (File 26276-14.) 
 
 "Expenses of courts-martial, prisoners and 
 prisons, and courts of inquiry, boards of inspec- 
 tion, examining boaids, with clerks' and wit- 
 nesses' fees, and traveling expenses and costs," 
 are appropriated for each year in the naval 
 appropriation act under the heading, "Pay, 
 miscellaneous." (See, for example, naval 
 appropriation act ^Mar. 3, 1915, 38 Stat., 929.) 
 
 Appropriation for department where 
 witness is employed. — If an officer of the 
 Government attends upon the United States 
 courts, or before United States commissioners, 
 in his official capacity, in connection with the 
 examination or trial of persons charged with 
 violations of certain laws relating to the work 
 of his department, and it is his duty under the 
 laws or regulations governing his appointment, 
 to aid in the prevention, detection, suppres- 
 sion, punishment, or prosecution of such vio- 
 lators or offenses, then his proper actual travel- 
 ing expenses, incun'ed by reason of his attend- 
 ance upon euch examination or trial , are prop- 
 erly chargeable to the appropriation out of 
 which his ordinary traveling expenses are usu- 
 ally paid, notwithstanding the fact that he may 
 be called and testify in the case as a witness; but 
 when a salaried government employee is sub- 
 poenaed as a witness and he so attends other- 
 wise than as above stated, he is entitled to re- 
 imbursement of his actual expenses by the 
 marshal from the appropriation "Fees of wit- 
 nesses. United States courts." (15 Comp. Dec, 
 298.) 
 
 As early as January 4, 1879, the Attorney 
 General issued a circular, section 2 of which is 
 as follows; "2. That section 850 is regarded by 
 this department as not extending to officers or 
 employees of the government for whose neces- 
 sary expenses while traveling to and from 
 court, and also during their attendance thereon, 
 provision is otherwise made by Congress. 
 Within this category', it is believed, come the 
 special agents of the Post-Office Department, 
 the special agents of the Pension Office, the 
 special agents of the Treasury Department, In- 
 ternal Revenue agents, and Secret Ser\-ice 
 operatives under the control of the Treasury 
 Department, [see below, "Special lawsgovem- 
 
 418 
 
The Judiciary. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 850. 
 
 ins: use of appropriations"] especially when 
 called as 'sv'itness for the Government in those 
 cases wherein they are employed by direction of 
 their respective bureaus or departments. 
 These agents and operatives (in addition to 
 certain salaries or per diem paid them as com- 
 pensation for their servdces) are understood to 
 receive allowances for traveling and other inci- 
 dental expenses, incurred while in the dis- 
 charge of their duties, out of appropriations 
 specially providing for these objects. Sec- 
 tion 850 does not comprehend expenses for 
 which Congress has thus specially provided. 
 District attorneys and marshals are instructed, 
 in dealing with the claims of witnesses under 
 section 850, to act in conformity hereto. They 
 are directed, before allowing or paying under 
 that section any officer or employee of the 
 United F tatea who has been subpoenaed as a wit- 
 ness for the Government his necessary expenses 
 for travel and attendance on court, to require 
 from the claimant a declai'ation, to be inserted 
 in and made a part of the affidavit to his ac- 
 count, that he has not received, and is not enti- 
 tled by the regulations of the bureau or depart- 
 ment in whose service he is or was employed, 
 to claim or receive, and will not claim, from such 
 bureau or department, any allowance what- 
 ever for those expenses." (5 Comp. Dec, 2.) 
 
 The Comptroller of the Treasury concurs in 
 the opinion of the Attorney General that sec- 
 tion 850, Revised Statutes, "does not compre- 
 hend expenses for which Congress has thus 
 specially provided." (5 Comp. Dec, 2, affirm- 
 ing 4 Comp. Dec, 649.) 
 
 The actual expenses of a salaried officer of 
 the Government who testifies as a witness for the 
 Government may be paid in either of two ways, 
 according to the nature of his emplojanent and 
 the character of the testimony given. (18 
 Comp. Dec, 992, citing 16 Comp. Dec, 411.) 
 
 In order to relieve tiie appropriation, "Fees 
 of witnesses, United States courts," from the 
 payment of the expenses of officers, employees 
 or agents of the Government while in attend- 
 ance as witnesses, two things must concur : First, 
 it must be the actual duty of such officers, em- 
 ployees or agents who are called as witnesses 
 beforea commissioner, grand jury or court, to 
 investigate the facts upon which the proceed- 
 ings are based, and to appear in their official 
 capacity to testify as to the facts so acquired ; 
 and, second, there must be an appropriation 
 controlled by that particular department of the 
 Government, under which such officers, em- 
 ployees or agents are serving, applicable to the 
 payment of such expenses. (16 Comp. Dec, 
 411.) 
 
 Where Government employees are required 
 to attend the sessions of a court in the discharge 
 of their ofticial duties, testimony given by 
 them is incidental to such official attendance, 
 whether subpoenaed as witnesses or not, and 
 their expenses incurred thereby are not payable 
 from the appropriation for "Fees of witnesses," 
 but are a charge against the proper appropria- 
 tion for their department. (14 Comp. Dec, 80.) 
 
 Where it is the duty of an officer, either under 
 law or rule or regulation, to aid in the detection, 
 prosecution, and punishment of a certain class 
 of offenders, he is not entitled to his expenses 
 from the appropriation for witnesses, his attend- 
 
 ance being incidental to the performance of his 
 duties and the expenses thereof being charge- 
 able to the appropriation of his department. 
 (14 Comp._ Dec, 113; 14 Comp. Dec, 80.) 
 
 Where inspectors who are employed under 
 appropriations to carry into effect the pure food 
 and drugs act attend as witnesses for the prose- 
 cution of offenses under said act, based on facta 
 certified to the district attorney by the Secre- 
 tary of Agriculture, they should be considered 
 as attending in their official capacity unless 
 they are called to give evidence of facts not 
 found by them in the discharge of their duties 
 as inspectors, and while in attendance in their 
 official capacity their actual and necessary 
 traveling expenses should be paid from appro- 
 priations under the Department of Agriculture. 
 (15 Comp. Dec, 757.) 
 
 The actual, necessary expenses of customs 
 officers, while attending as witnesses before a 
 United States commissioner, grand jury, or 
 district court, to testify on behalf of the Govern- 
 ment as a result of knowledge gained by them 
 in the discharge of their official duties, are pay- 
 able from the appropriation for ' ' Collecting the 
 revenue from customs." It is the duty of the 
 customs officer in the cases now under con- 
 sideration to attend before the commissioner 
 or upon the court, and when so attending he is 
 not present as an ordinary witness (in obedience 
 to a subpoena and for no other reason), but is 
 present in his capacity as a customs officer to 
 aid in the detection, prevention, and suppres- 
 sion of violations of the customs laws and in 
 the discharge of duties for which he is ap- 
 pointed. His presence in the character of a 
 witness in a case wherein he made the seizure 
 and arrest must be regarded as incidental to 
 the real j)urpose for which he is present, and 
 expenses incurred in attending such hearing or 
 trial should be considered as incurred in his 
 official capacity as a customs officer and in the 
 interests of the customs service; accordingly, 
 such expenses, actually and necessarily in- 
 curred under the proper departmental regula- 
 tions, are payable from the appropriation out 
 of which his other expenses incurred in the 
 line of his duty are paid. (15 Comp. Dec, 
 154.) 
 
 The attendance of a naturalization examiner 
 before a United States commissioner in a hear- 
 ing of a case upon a warrant sworn out by him 
 for a violation of the naturalization laws, and 
 his subsequent attendance before a grand jury 
 relative to the same case for the purpose of hav- 
 ing the defendant indicted for such violation, 
 are a part of his official duties and whether he 
 was subpoenaed or not testimony given by him 
 at such hearing or before the grand jury, as a re- 
 sult of knowledge gained by him in the dis- 
 charge of his official duties, was only incidental 
 thereto and his expenses incurred thereby, 
 witlun the limits of his appointment, are pay- 
 able from the a^jpropriation for ' ' Pay of assistant 
 attorneys in naturalization cases," and not 
 from the judicial appropriation for fees of wit- 
 nesses. (14 Comp. Dec, 516.) 
 
 The law makes it a part of the duty of a 
 special examiner to aid in the prosecution of 
 persons violating the pension laws. He there- 
 fore appears as a witness in such cases as an 
 official dutj'. Accordingly, held that the ap- 
 
 419 
 
Sec. 861. 
 
 rt.2. REVISED STATUTES. 
 
 The Judiciary. 
 
 propriation for cxamiiiors in the Bureau of 
 rensions is excliisivoly applicable to the ex- 
 penses of such exaniinors for attendance upon 
 court as witnesses, there bein^ no provision in 
 that ajiprojiriatiou that no part thereof shall be 
 used in dcfrayino: such expenses, such as ap- 
 pears in some ajjprojtriations for other depart- 
 ments. (5 C'onip. Dec, 2.) 
 
 In the matter of the appropriations chargeable 
 with the traveling expenses incurred by salaried 
 employees of the (.iovernment by reason of 
 their attendance upon a trial or examination 
 before a United States couit or a United States 
 commissioner, the Comptroller of the Treasury' 
 can not undertake to determine the exact status 
 of such em]iloyees and the nature of the trial 
 or examination in each and every one of the 
 cases which arise. (15 Comp. Dec, 298.) 
 
 The payment of expenses of a witness in the 
 Government service should be governed by the 
 rule laid down in 15 Comp. Dec, 298 (above 
 noted). WTiether said witness attended in his 
 official capacity as an officer, or as an ordinary 
 witness, is unknown to the comptroller, and 
 it is the duty of the marshal to develop the 
 facts and apply the rule to sucji facts when 
 definitely ascertained. (16 Comp. Dec, 92.) 
 
 Expenditures incurred by a departmental 
 clerk in obeying a subpoena issued by a district 
 court of the United States are properly charge- 
 able to the appropriation '"Fees of witnesses. 
 United States courts," when it is shown that 
 said clerk was summoned for no other purpose 
 than that of an ordinary witness. The subpoena 
 in this case was addressed to the Chief of the 
 Division of Naturalization, Department of 
 Commerce and Labor, Washington, D. C, and 
 was issued for the purpose of securing the pro- 
 duction before the grand jury of a certain 
 "duplicate declaration of intention" on file in 
 the department; a clerk of class 4 in the depart- 
 ment at ^\'ashington was directed to attend in 
 answer to this subpoena, which he did and in 
 so doing incurred the expenses in question. 
 It does not appear that said clerk officially 
 
 investigated or found out and developed the 
 facts upon which the case before the giand 
 jury was ])redicated, or that it was his ollicial 
 duty untler the law or regulations to aid in 
 the prosecution of the case. In fact, there is 
 nothing to show that this departmental clerk 
 attended otherwise than in the character of 
 an ordinarv witness under section 850 Revised 
 Statutes. "(16 Comp. Dec, 672.) 
 
 Special laws governing use of appropria- 
 tions. — The principle announced in previous 
 decisions (4 Comp. Dec, 649; 5 Comp. Dec, 2; 
 14 Comp. Dec, 80; 14 Comp. Dec, 516; 15 
 Comp. Dec, 154; 15 Comp. Dec, 298, ail 
 above noted) is correct and should be adhered 
 to in determining the particular appropriation 
 chargeable with the expenses of employees 
 in attendance upon the United States courts 
 whose duties under their appointments or 
 under the law involve aiding in the detection, 
 prevention, prosecution or suppression of viola- 
 tions of certain laws, except in cases where 
 Congress has seen fit to exempt any class of 
 employees from the operation of such rule by 
 special legislation. (15 Comp. Dec, 594.) 
 
 By act of May 22, 1908 (35 Stat., 207) an ex- 
 emption was made with reference to officers of 
 the Internal Revenue Service, and similar 
 provisions have been enacted with reterence to 
 Secret Service employees. Accordingly, held 
 that, "in view of the provisions of the act of 
 May 22, 1908, the actual and necessary expenses 
 of a deputy collector of internal revenue, under 
 section 850 of the Revised Statutes, incurred 
 by reason of his attendance as a witness on 
 behalf of the United States before the grand 
 jury in obedience to a subpoena issued by the 
 United States district court are payable from 
 the appropriation "Fees of witnesses, United 
 States courts." (15 Comp. Dec, 594; followed, 
 16 Comp. Dec, 838, and 20 Comp. Dec, 195, 
 with reference to expenses of attendance as 
 witnesses before United States commissioners 
 in obedience to subpoenas.) 
 
 Sec. 851. [Witnesses transported on Government or private vessel.] There shall 
 be paid to each seaman or other person who is sent to the United States from 
 any foreign port, station, sea, or ocean, by any United States minister, charge 
 d'affaires, consul, captain, or commander, to give testimony in any criminal 
 case depending in any court of the United States, such compensation, exclusive 
 of subsistence and transportation, as such court may adjudge to be proper, 
 not exceeding one dollar for each day necessarily employed in such voyage, 
 and in arriving at the place of examination or trial. In fLxing such compensa- 
 tion, the court shall take into consideration the condition of said seaman or 
 witness, and whether his voyage has been broken up, to his injury, by his 
 being sent to the United States. 
 
 Wlien such seaman or person is transported in an armed vessel of the 
 United States no charge for subsistence or transportation shall be allowed. 
 When he is transported in any other vessel, the compensation for his trans- 
 portation and subsistence, not exceeding in any case fifty cents a day, may be 
 fixed by the court, and sliall be paid to the captain of said vessel accordingly. — 
 (26 Feb., 1853, c. SO, s. 3, v. 10, p. 168.) 
 
 420 
 
CHAPTER SEVENTEEN. 
 
 EVIDENCE. 
 
 Sec. Sec. 
 
 859. Evidence in criminal proceedings. 879. 
 
 8G8. Depositions for use in Federal coui-ts. 881. 
 
 869. Compelling production of records before 
 
 commissioner appointed to take deposi- 882. 
 
 tions. 883. 
 
 870. Fees of witness before commissioner to be 
 
 paid in advance. 886. 
 
 871. Depositions for use in State com-ts. 887. 
 
 872. Depositions when no commission issued. 888. 
 
 873. Manner of taking and transmitting depo- 895. 
 
 eitions. 896. 
 
 874. Witness fees allowed for giving depositions . 905 . 
 877. Witnesses; form of subpoena. 906. 
 
 Imprisonment or recognizance of witnesses. 
 Confinement of witnesses at any time to 
 
 insure appearance. 
 Copies of department records and papers. 
 Copies of records in office of Solicitor of 
 
 Treasury. 
 Transcripts from records of Treasury. 
 Evidence in embezzlement cases. 
 Copies of records in Returns Office. 
 Extracts from Journals of Congress. 
 Copies of records in consular offices. 
 Authentication of State laws and records. 
 Proof of State records other than judicial. 
 
 Sec. 859. [Evidence in criminal proceedings.] No testimony given by a witness 
 before either House, or before any committee of either House of Congress, 
 shall be used as evidence in any criminal proceeding against him in any court, 
 except in a prosecution for perjmy committed in giving such testimony. But 
 an official paper or record produced by him is not within the said privilege. 
 [See § 103.]— (24 Jan., 1862, c. 11, v. 12, p. 333. 24 Jan., 1857, c. 19, s. 2, 
 V. 11, p. 156.) 
 
 Accused shall, at his own request but not other- 
 wise, be a competent witness in proceed- 
 ings before coiuts-martial, courts of in- 
 quiry, and civil courts of the United States. 
 His failure to make such request shall not 
 create anv presumption against him. (Act 
 Mar. 16, 1878, 20 Stat., 30.) 
 
 Admissibility of evidence in Federal criminal 
 cases is to be determined by the law of 
 the State where the court is held, as it 
 existed when the courts of the IJnited 
 States were established by the judiciary 
 act of 1789. (U. S. v. Reid, 12 How., 
 .361; Fitter i;. U. S., 258 Fed. Rep., 576.) 
 
 Court of inquiry records admissible in evidence 
 before naval courts-martial in cases not 
 capital nor extending to dismissal of com- 
 missioned or warrant officer, provided oral 
 testimony can not be obtained. (Sec. 1624, 
 R. S., art. 60.) 
 
 Courts-martial— see section 1624, Revised Sta- 
 tutes, articles 29, 40-42 and 60. 
 
 Depositions may be used in evidence before 
 naval courts in cases not capital nor ex- 
 tending to imprisonment for more than one 
 year. (Act Feb. 16, 1909, sec. 16, 35 Stat., 
 622.) 
 
 Handwriting may be proved by comparison 
 with any admitted or proved handwriting 
 of the party which may be offered in evi- 
 dence. (Act Feb. 26, 1913, 37 Stat., 683.) 
 
 Husband or wife of accused shall be competent 
 witness in prosecutions for bigamy, polyg- 
 amy, or unlawful cohabitation, but shall 
 not be compelled to testify, nor shall such 
 ^\itness be permitted to testify as to any 
 confidential communication. (Act Mar. 3, 
 1887,_ sec. 1, 24 Stat., 635. In other cases 
 wife is not competent to testify for or against 
 husband in United States coiirts, except 
 where he is charged with personal injury 
 to her. See C. M. O. 31, June 12, 1914; 
 C. M. O. 22, 1916, p. 8; compare Fitter v. 
 U. S., 258 Fed. Rep., 576.) 
 
 Incriminating or degrading testimony — See 
 note to Constitution, fifth amendment. 
 
 Possession of goods imported contrary to law 
 sufficient evidence to sustain conviction 
 unless satisfactorily explained. (Sec. 3082, 
 R.S.) 
 
 Possession of opium imported contrary to law 
 sufficient e\ddence to sustain conviction 
 unless satisfactorily explained. (Act Feb. 
 9, 1909, sec. 2, 35 Stat., 614.) 
 
 Sec. 868. [Deposition for use in Federal courts.] When a commission is issued 
 by any court of the United States for taking the testimony of a witness named 
 therein at any place within any district or Territory, the clerk of any court of 
 the United States for such district or Territory shall, on the application of 
 either party to the suit, or of his agent, issue a subpoena for such witness, 
 
 421 
 
Sec. 868. 
 
 PL 2. REVISED STATUTES. 
 
 The Judiciary. 
 
 cominaiuling liim to appear and testify before the commissioner named in the 
 commission, at a time and place stated in the subpoena; and if any witness, 
 after being duly served with such subpoena, refuses or neglects to appear, or, 
 after appearing, refuses to testify, not being privileged from giving testimony, 
 and such refusal or neglect is proven to the satisfaction of any judge of the 
 court whose clerk issues such subpoena, such judge may proceed to enforce 
 obedience to the process, or punish the disobedience, as any com't of the United 
 States may proceed in case of disobedience to process of subpoena to testify 
 issued by such court. — (24 Jan., 1827, c. 4, s, 1, v. 4, p. 197; York Co. v. Central 
 R. R., 3 Wall, 113.) 
 
 Depositions for use before naval courts are 
 authorized by actof February 16, 1909, sec- 
 tion 16 (35 Stat., 622). 
 
 Depositions for use before departments in con- 
 nection with pending claims are authorized 
 by section 184, Revised Statutes. 
 
 Deposition.s for use in the Court of Claims are 
 authorized by the Judicial Code, act of 
 March 3, 1911, sections 163, 168-171 (36 
 Stat., 1140, 1141). 
 
 Depositions in ci\il cases, without the previous 
 issuance of a commission by the court in 
 which pending, are authorized by sections 
 863, 864, and 865, Revised Statutes. 
 
 Depositions, taken in mode prescribed by State 
 laws, for use in Federal courts, are author- 
 ized by act of March 9, 1892 (27 Stat., 7). 
 
 Depositions for use in Federal courts, upon the 
 previous issuance of a commission, are 
 authorized by sections 866-868, Revised 
 Statutes. 
 
 Depositions for use in State courts are author- 
 ized by sections 871-874, Revised Statutes. 
 
 Notaries public of the States, Territories, and 
 District of Columbia were authorized to 
 take depositions, by act of August 15, 1876 
 (19 Stat., 206). 
 
 Heads of departments, — See note to sec- 
 tion 871, Revised Statutes, as to duty of heads 
 of departments to testify or furnish depositions. 
 
 Assistant to head of department re- 
 quired to appear and testify before commis- 
 sioner appointed to take his deposition. — In 
 habeas corpus proceedings instituted by a Chi- 
 naman in the United States Court for the West- 
 ern District of Washington it was contended by 
 petitioner that proceedings for his deportation 
 were invalid for the reason that his appeal to 
 the Secretary of Labor was heard and disposed 
 of by a subordinate officer of the Department of 
 Labor, who signed his action thereon as Acting 
 Secretary, whereas such officer had been author- 
 ized to perform the duties of the Secretary, 
 under section 179, Re\dsed Statutes, only when 
 the Secretary and Assistant Secretary were 
 both absent from the department, and at the 
 time in question both the Secretary and As- 
 sistant Secretary were present at their offices. 
 A commission was issued by the court to take 
 the deposition of the Assistant Secretary of 
 Labor before a commissioner in the District of 
 Columbia. A subpopna was duly issued by the 
 Supreme Court of the District of Columbia, re- 
 quiring the Assistant Secretary to appear and 
 testify before the said commissioner. The 
 
 Assistant Secretary appeared, but declined to 
 answer the interrogatories or cross- interroga- 
 tories propounded, on the ground that each 
 question "relates to the internal administration 
 of the department and I regard it as calling for 
 an answer that might be prejudicial to the pub- 
 lic interest. For this reason I decUne to answer 
 until instructed otherwise by the Secretary of 
 Labor." The first and material question was: 
 "Were you on duty at the Department of Labor 
 on each of the following dates: September 24, 
 1914, September 25, 1914, and September 26, 
 1914? " A rule was issued to the Assistant Sec- 
 retary by the Supreme Court of the District of 
 Columbia, requiring him to show cause why he 
 should not answer the questions propounded. 
 In his return the Assistant Secretary stated, in 
 part, that he had been instructed by the Sec- 
 retary of Labor "that the disclosures sought to 
 be obtained by the interrogatories propounded 
 would be prejudicial to the public interest," 
 and that "he was advised by the Solicitor of the 
 Department of Justice for the Department of 
 Labor, as a matter of law, that he was privileged 
 to decline to answer the said questions pursuant 
 to such instructions and for the reasons stated 
 in said declination. ' ' It was thereupon ordered 
 by the court that the Assistant Secretary appear 
 before the commissioner and make full and true 
 response to the question above quoted. In the 
 opinion of the court it was stated in part: 
 
 " It will therefore be seen that the question 
 propounded to the witness Post, which he 
 decUned to answer, goes to the jurisdiction of 
 the officer who assumed to act as Secretary of 
 Labor in signing the mandate, or order of 
 exclusion, under which Ching Hing is detained. 
 
 "As stated by Judge Dooling of the United 
 States District Court for the Northern District 
 of California in the case of In re Tsuie Shoe 
 et al., on October 23, 1914: 'The appellants 
 were by law entitled to appeal to the Secretary 
 of Labor, and entitled to have their appeal 
 heard and determined by him except as above 
 stated, and the determination of their appeal 
 by another not authorized is neither a fair 
 hearing, nor due process of law.' 
 
 "Briefly stated , the question asked respondent 
 was whether or not he was on duty in the de- 
 partment on three named days. Upon his 
 answer to an extent, depends the liberty of 
 Ching Hing. He declined to answer because 
 the answer 'might be prejudicial to the public 
 interest.' In exactly what manner it might 
 be 'prejudicial to the public interest' for 
 any official to testify as to whether he was, at a 
 given time, performing the duties charged 
 
 422 
 
The Judiciary. 
 
 Pt.2. RE VISED STAT UTES . 
 
 Sec. 869. 
 
 upon him by law and for which he was being 
 paid at public expense, when the fact becomes 
 important in a judicial investigation affecting 
 the hberty of an individual — even a China- 
 -is not apparent on this record. In the 
 
 man- 
 
 refuse to permit an investigation as to the fact 
 of such jurisdiction. If the Department of 
 Labor has acted without authority, and an 
 individual has been denied his hberty as a 
 result of such action, it is most extraordinary 
 for the department to assert that pubhc policy 
 requires a concealment of the truth in regard 
 to such lack of authority. Indeed, if the 
 department had authority to act, and that 
 authority were questioned in a proper judicial 
 proceeding, by a court having jurisdiction of 
 the matter, it would seem reasonable that the 
 respect due by one coordinate branch of the 
 Government to another would discountenance 
 a concealment of the facts upon which the 
 department acted." (In the matter of Ching 
 Hing, Supreme Court of the District of Co- 
 lumbia, decided June 10, 1915, file 26276-127; 
 for other cases, see note to sees. 161, 417, and 
 418, R. S., and Constitution, Art. II, sec. 1, 
 clause 1. See also Ex parte Ching Hing, 
 224 Fed. Rep., 261, in which the commis- 
 sion to take testimony in the case above 
 quoted was recalled by the United States 
 Court for the Western District of Washington, 
 for the reason that after such commission was 
 issued the Secretary of Labor personally re- 
 \T.ewed and affirmed the decision of the "Act- 
 ing Secretary" in the same proceedings; af- 
 firmed Ching Hing v. White, 234 Fed." Rep., 
 616.) 
 
 instant case, upon the record before the court, 
 it is impossible to find any prejudice to the 
 public interest in requiring an answer to the 
 question propounded. 
 
 "This case is differentiated from Boske v. 
 Comingore (177 U. S., 459), where the infor- 
 mation sought of the collector of internal rev- 
 enue was prohibited by a regulation of the 
 Secretary of the Treasury made under authority 
 of law and for the purpose of making more 
 efficient the Internal Revenue Service, and 
 also from such cases as Gody v. Pentland 
 (85 Pa., 22), in which public officials are pro- 
 tected in their refusal to produce records on 
 grounds of public policy. Here the question 
 of the public policy involved in the answer 
 sought is as capable of being decided by the 
 court as by the executive official, because 
 apparently all the information sin-rounding the 
 alleged privilege of respondent is before the 
 court. And upon this information, the court 
 is of the opinion that it is the duty of respondent 
 to answer the qviestion put to him. An analo- 
 gous situation might be supposed if the judg- 
 ment of a com't against a citizen was questioned 
 because of the lack of jmisdiction in the court 
 to render the judgment, and the court should 
 
 Sec. 869. [Compelling production of records before commissioner appointed to 
 take deposition.] When either party in such suit appUes to any judge of a United 
 States court in such district or Territory for a subpoena commanding the wit- 
 ness, therein to be named, to appear and testify before said commissioner, at 
 the time and place to be stated m the subpoena, and to bring with him and pro- 
 duce to such commissioner any paper or writmg or written instrmnent or book 
 or other document, supposed to be in the possession or power of such witness, 
 and to be described in the subpoena, such judge, on being satisfied by the 
 affidavit of the person applymg, or otherwise, that there is reason to beUeve 
 that such paper, writing, written instrument, book, or other document is in 
 the possession or power of the witness, and that the same, if produced, would 
 be competent and material evidence for the party applying therefor, may 
 order the clerk of said court to issue such subpoena accordmgly. And if the 
 witness, after being served with such subpoena, fails to produce to the com- 
 missioner, at the time and place stated in the subpoena, any such paper, writ- 
 ing, written instrument, book, or other dociunent, being in his possession or 
 power, and described in the subpoena, and such failure is proved to the satis- 
 faction of said judge, he may proceed to enforce obedience to said process of 
 subpoena, or punish the disobedience in like maimer as any court of the United 
 States may proceed in case of disobedience to like process issued by such court. 
 When any such paper, writing, written instrument, book, or other document 
 is produced to such commissioner, he shall, at the cost of the party requiring 
 the same, cause to be made a correct copy thereof, or of so much thereof as 
 shall be required by either of the parties. — (24 Jan., 1827, c. 4, s. 2, v. 4, p. 
 199; 1 Burr's Trial,' 183.) 
 
 See notes to sections 161, 418, and 871, Revised Statutes, concerning records of executive 
 departments. 
 
 423 
 
Sec. 871. 
 
 Pt.2. RE VISED STAT UTES . 
 
 The Judiciary. 
 
 Sec. 870. [Fees of witness before commissioner to be paid in advance.] No 
 witness shall be required, under the provisions of either of the two preced- 
 ing sections, to attend at any place out of the county where he resides, nor 
 more than forty miles from the place of his residence, to give his deposition; 
 nor shall any witness be deemed guilty of contempt for disobeying any sub- 
 poena directed to him by virtue of either of the said sections, unless his fee for 
 gohig to, returning from, and one day's attendance at, the place of examina- 
 tion, are paid or tendered to him at the time of the service of the subpoena. — 
 (24 Jan., 1S27, c. 4, ss. 1, 2, v. 4, pp. 197, 199.) 
 
 Sec. 871. [Depositions for use in State courts.] When a commission to take 
 the testunony of any witness found within the District of Columbia, to be used 
 in a suit depending in any State or territorial or foreign court, is issued from such 
 court, or a notice to the same effect is given according to its rules of practice, 
 and such commission or notice is produced to a justice of the supreme court 
 of said District, and due proof is made to him that the testimony of such wdtness 
 is material to the party desiring the same, the said justice shall issue a sunmions 
 to the witness, requiring him to appear before the commissioners named in the 
 commission or notice, to testify in such suit, at a time and at a place within said 
 District therein specified.— (.3 Mar., 1869, c. 128, s. 1, v. 15, p. 324.) 
 
 See note to section 868, Revised Statutes, for 
 references to other laws authorizing depo- 
 sitions in various cases. 
 
 Heads of departments. — In the absence 
 of specific authority on the subject the Attorney 
 General is inclined to hold that the head of a 
 department is not legally bound to appear and 
 testify in obedience to a subpa?na of a court. 
 However, where it is proposed to take the testi- 
 mony by commission, and the head of the 
 department is not thus reqvured to appear in 
 court but before a commissioner, suggested that 
 an arrangement might readily be made which 
 would better comport with the dignity of his 
 office as head of an executive department of the 
 Government, wherebj' such testimony as he 
 should deem proper and ad\dsable to give could 
 be taken at the department of which he is the 
 head. (25 Op. Atty. Gen., 326; see also 
 Gardner v. Anderson," 9 Fed. Gas. No. 5220, 
 noted under sec. 418, R. S., in which head of 
 department refused to respond to subpoena and 
 court refused to proceed against him for con- 
 tempt. Compare In the matter of Ching 
 Hing. noted under sec. 868, R. S.) 
 
 Chiefs of bureaus in the Navy Depart- 
 ment have been authorized by the Secretary 
 of the Navy to answer interrogatories pro- 
 pounded before a commissioner duly appointed 
 by a State court to take their testimony, without 
 any summons being issued by a justice of the 
 Supreme Court of the District of Columbia as 
 provided for by the above section of the Revised 
 Statutes. (See for example, file 12475-52, Oct. 
 31, UtH.) 
 
 Copies of records will not be furnished 
 parties litigant for use in the course of pro- 
 ceedings in a Federal or State court; but the 
 Navy Department will promptly furnish such 
 copies upon call of the court before which the 
 litigation is pending. (G. 0. No. 121, Navy 
 Dept., Sept. 17, 19i4, par. 18; see also file 
 12475-65, Jan. 12, 1916.) 
 
 Officers of the Navy or Marine Corps are pro- 
 hibited from producing official records or copies 
 thereof in a State court in answer to subpoena- 
 duces tecum or other\\'ise, \vithout first obtain- 
 ing authority therefor from the Secretary of the 
 Navy. (G. O. No._ 121, Navy Dept., Sept. 
 17, 1914, par. 18, citing Boske v. Comingore. 
 177 U. S., 460.) 
 
 The Navy Department will permit the duly 
 authorized commissioner appointed by a State 
 court to obtain copies of records, at the expense 
 of the party desiring them, the same as such 
 copies would have been furnished upon call of 
 the court before which litigation is pending in 
 which they are to be used. (File 12475-52:1, 
 Aug. 15, 1914.) 
 
 In accordance with Navy Regulations (Art. 
 R-2958, 1913) and the practice of the Navy 
 Department, a medical officer is not authorized , 
 without approval by the department in each 
 specific case, to (a) sign the form used in secret 
 fraternal orders to secure sick dues; (b) sign a 
 death certificate for presentation to a secret 
 society or lodge having death benefits; or (c) 
 fill out insurance blanks in the case of the 
 death of a naval patient. This relates to 
 medical records of officers and enlisted men in 
 the naval ser\dce who have been patients of the 
 medical officer of whom the certificates are 
 requested, ^^^lere certificates of death are re- 
 quired by State laws in connection with the 
 transportation of remains, such certificates 
 would be "official certificates" and would not 
 come under the prohibition of the regulation.^ . 
 (File 12475-52:10, Aug. 5, 1915; see also 
 12475-52:8, Dec. 5, 1914; 12475-71, Mar. 16, 
 1916; 26806-15, Apr. 8, 1909; 5195-61:1, Mar. 
 21, 1912.) 
 
 It has been the practice of the Na\y Depart- 
 ment to consider a man's medical record as 
 private and confidential, and that it should be 
 given to no one but the man himself, or if dead 
 to his next of kin, and furthermore that such 
 
 424 
 
The Judiciary. Pt.2. REVISED STATUTES. Sec. 879. 
 
 action in to be taken only upon application to 
 the department direct. (File 12475-52:8, Dec. 
 12, 1914; C. M. O. 6, 1915, p. 14.) Attorneys or 
 agents may obtain information concerning the 
 service of officers or enlisted men, by filing 
 with the department a power of attorney from 
 
 the party or his next of kin, and giving a satis- 
 factory statement as to the purpose for which 
 the desired information is to be used. (Art. 
 1-26, Naval Instructions, 1913.) 
 
 For other cases, see note to sections 161 and 
 418, Kevised Statutes. 
 
 Sec. 872. [Depositions when no commission issued.] Wlicn it satisfactorily 
 appears by affidavit to any justice of the supreme court of the District of 
 Cohimbia, or to any commissioner for taldng depositions appointed by said 
 court — 
 
 Fu'st. That any person within said District is a material witness for either 
 party in a suit pending in any State or territorial or foreign court; 
 
 Second. That no commission nor notice to take the testimony of such 
 witness has been issued or given; and 
 
 Third. That, accorduig to the practice of the court in which the suit is 
 pending, the deposition of a witness taken without the presence and consent 
 of both parties will be received on the trial or hearing thereof, such officer shall 
 issue his summons, requiring the witness to appear before him at a place within 
 the District, at some reasonable time, to be stated therem, to testify in such 
 suit.— (3 Mar., 1869, c. 128, s. 2, v. 15, p. 325.) 
 
 Sec. 873. [Manner of taking and transmitting depositions.] Testimony 
 obtained under the two preceding sections shall be taken do%\ai m writmg by 
 the officer before whom the witness appears, and shall be certified and trans- 
 mitted by him to the court in which the suit is pending, in such manner as the 
 practice of that court may require. If any person refuses or neglects to appear 
 at the time and place mentioned in the summons, or, on his appearance, refuses 
 to testify, he shall be liable to the same penalties as would be incurred for a 
 hke offense on the trial of a suit. — (3 Mar., 1869, c. 128, s. 3, v. 15, p. 325.) 
 
 Sec. 874. [Witness fees allowed for giving depositions.] Every witness 
 
 appearing and testifying under the said provisions relatmg to the District of 
 
 Columbia shall be entitled to receive for each day's attendance, from the party 
 
 at whose instance he is summoned, tlie fees now provided by law for each day 
 
 he shall give attendance. — (3 Mar., 1869, c. 128, s. 4, v. 15, p. 325.) 
 
 See section 185, Revised Statutes, as to fees 
 allowed witnesses giving depositions for use 
 before departments in pending claims. 
 
 Sec. 877. [Witnesses; form of subpoena.] Witnesses who are required to 
 attend any term of a circuit or district court on the part of the United States, 
 shall be subpoenaed to attend to testify generally on their behalf, and not to 
 depart the court without leave thereof, or of the district attorney; and under 
 such process they shall appear before the grand or petit jury, or both, as they 
 may be required by the court or district attorney. — (6 Feb., 1853, c. 80, s. 3, v. 
 10, p. 169.) 
 
 See sections 848-851, Revised Statutes, for 
 amount of fees allowed witnesses. 
 
 which United States courts of criminal 
 jurisdiction may lawfully issue. (Act Feb. 
 16, 1909, sec. 11, 35 Stat., 621.) 
 
 Circuit courts were abolished by the Judicial 
 
 Code, act of March 3, 1911, sections 289- 
 
 291 (36 Stat., 1167). 
 Naval courts have power to issue like process 
 
 to compel witnesses to appear and testify 
 
 Sec. 879. [Imprisonment or recognizance of witnesses.] Any judge or other 
 officer who may be authorized to arrest and imprison or bail persons charged 
 with any crime or offense against the United States may, at the hearing of any 
 
 425 
 
Sec. 882. 
 
 Pt.2. REVISED STATUTES. 
 
 The Judiciary. 
 
 such char<]::e, rcHjuiro of any witness produced against the prisoner, on pain of 
 imprisojunent, a recognizance, with or without sureties, in his discretion, for 
 his appearance to testify in the case. And where the crime or ofiFense is charged 
 to have been connnitted on the high seas, or elsewhere within the admiralty 
 and maritime jurisdiction of the United States, he may, m his discretion, require 
 a hke recognizance, with such sureties as he may deem necessary, of any witness 
 produced in behalf of the accused, whose testimony in his opinion is important, 
 and is in danger of being otherwise lost. [See §§ 848, 1014.] — (24 Sept., 1789, 
 c 20, s. 33, r. 1, p. 91; 23 Aug., 1842, c. 188, s. 2, v. 5, p. 517; 8 Aug., 1846, 
 c. 98, s. 7, V. 9, p. 73.) 
 
 See note to section 877, Revised Statutes, as to power of naval courts to compel attend- 
 ance of witnesses. 
 
 Sec. 881. [Confinement of witnesses at any time to insure appearance.] 
 Any judge of the United States, on the application of a district attorney, and 
 on being satisfied by proof that the testimony of any person is competent and 
 will be necessary on the trial of any criminal proceeding in w^hich the United 
 States are parties or are interested, may compel such person to give recognizance; 
 with or without sureties, at his discretion, to appear to testify therein; and, for 
 that purpose, may issue a warrant against such person, under his hand, with 
 or without seal, directed to the marshal or other officer authorized to execute 
 process in behaK of the United States, to arrest and bring before him such 
 person. If the pereon so arrested neglects or refuses to give recognizance in the 
 manner required, the judge ma}- issue a warrant of commitment agamst him, 
 and the officer shall convey him to the prison mentioned therein. And the said 
 person shall remain in confinement until he is removed to the court for the 
 purpose of giving his testimony, or until lie gives the recognizance required by 
 said judge.— (8 Aug., 1846, c. 98, s. 7, v. 9, p. 73.) 
 
 See note to section 877, Revised Statutes, as to 
 power of naval courts to compel attendance 
 of witnesses. 
 
 In prosecutions for unlawful cohabitation, 
 when it appears that there is reasonable 
 ground to believe that a witness will refuse 
 
 to obey a subpoena, an attachment for such 
 witness may be issued without pre\'iou8 
 subpoena, and the witness held until he 
 executes a recognizance for his appearance. 
 (Act Mar. 3, 1887, sec. 2, 24 Stat,. 635.) 
 
 Sec. 882. [Copies of Department records and papers.] Copies of any books, 
 records, papers, or documents m any of the Executive Departments, authen- 
 ticated under the seals of such Departments, respectively, shall be admitted 
 in evidence equally with the originals thereof. — ^(15 Sept., 1789, c. 14, s. 5, 
 V. 1, p. 69. 22 Feb., 1849, c. 61, s. 3, v. 9, p. 347. 31 May, 1854, c, 60, s. 2, 
 V. 10, p. 297.) 
 
 Certified copies of records in naturalization 
 cases are evidence in any case in which 
 originals might be admissible. (Act June 
 29, 1906, sec. 28, 34 Stat., 606.) 
 
 Courts-martial — As to admissibility of evidence 
 and competency of witnesses before naval 
 courts-martial, see section 1624, Revised 
 Statutes, articles 40-42. and 60. 
 
 Practice of Navy Department as to fiirnishing 
 copies of records for use in court proceed- 
 ings — See note to section 871, Revised 
 Statutes. 
 
 Scope of section. — Only papers or docu- 
 ments which were made by an officer or agent 
 of the Government in the course of his official 
 duty are embraced by this section, which can 
 not be held to include every document or 
 paper on file. (Block's case, 7 Ct. Cls. , 406.) 
 
 The words "documents" and "papers" used 
 in acts of Congress do not mean every document 
 or paper on file in a department, but such as 
 were made public documents by officers of the 
 Government in the discharge of their duties. 
 (The Ship Parkman, 35 Ct. Cls., 407.) 
 
 426 
 
The Judiciary. 
 
 Pt.2. RE VISED S TA T UTES . 
 
 Sec. 886. 
 
 The statutes pro^^ding for the authentica- 
 tion of copies of books, papers, and documents 
 in the executive departments employ sub- 
 stantially the same language that is used by 
 common-law writers on the same subject and 
 they must be understood and interpreted by 
 the same reasons that govern at common law. 
 (Block's case, 7 Ct. Cls., 406.) 
 
 Transcripts from the records of the executive 
 departments, when authenticated by the seal 
 of the department, are e\iden-ce both at com- 
 mon law and by statute; but the words ■"docu- 
 ments" and '"papers" used in the act of 
 Congress can not be held to mean evei-y docu- 
 ment or paper on file, but such only as were 
 made by an officer or agent of the Government 
 in the course of his official duty. Official docu- 
 ments duly certified need no further proof; but 
 other documents, though on file, do not by the 
 mere fact of certification become so authenti- 
 cated as to entitle them to be read in evidence. 
 (Block's Ci-ise, 7 Ct. Cls., 406.) 
 
 A receipt for property captured, procured 
 from a military governor by a claimant and by 
 him filed in an executive department, is not a 
 public dociunent; and an authenticated copy 
 thereof can not be read in evidence. The 
 original must be produced and proved accord- 
 ing to the rule^ of evidence. (Block's case, 
 7 Ct. Cls., 406.) 
 
 This statute applies at least to any paper 
 which is by law required to be kept on file in 
 any executive department; it is not limited to 
 papei"s written by an officer in his official ca- 
 pacity. (Cohn V. U. S., 258 Fed. Rep., 355, 
 362.) 
 
 See notes to section 1624, Re"vised Statutes, 
 articles 34 and 42. 
 
 Form of authentication. — It is a sufficient 
 compliance with this section for the liead of 
 the office where the record is kept to certify 
 that it is a true copy of the original, and for 
 
 the head of the department to certify under 
 seal to the official character of the head of the 
 ofiice. (Ballew v. U. S., 160_ U. S., 187.) 
 
 State courts may admit in e\'idence certi- 
 fied copies of papers and documents on file in 
 the Navy Department, pursuant to State stat- 
 utes similar to the above provision of section 
 882. (See, for example, Maurice v. Worden, 
 54Md.,233.) 
 
 When documentary evidence is offered 
 before a naval court-martial it must be in a 
 public session of the court, and if admitted the 
 document in full or an authenticated copy 
 thereof must be appended to the record or set 
 out in full in the recorded testimony of the wit- 
 ness who reads from the document (Naval 
 Courts and Boards, 1917, arts. 187, 203), except 
 that it is not necessary for a court-martial to ap- 
 pend either the originals or certified copies of 
 efficiency reports to the record of proceedings 
 when introduced in evidence, a simple nota- 
 tion in the record that they were admitted in 
 evidence being sufficient, as the originals form 
 a part of the officer's official record on file in 
 the Navy Department, where they may readily 
 be examined at any time in connection with the 
 court-martial proceedings. (C. M. O. 19, May 
 25, 1915, citing file 26'251-7777, July 2, 1913.) 
 
 When it is desired to put any part of the offi- 
 cial record of an officer in evidence, the origi- 
 nal, where available, should be offered, and 
 the action of a judge advocate in making ad- 
 missions as to its contents would not in general 
 meet "with the approval of the Navy Depart- 
 ment. (C. M. O. 19, May 25, 1915; Naval 
 Courts and Boards, 1917, art. 191.) 
 
 Court-martial orders, general and special 
 orders, circulars, regulations, and similar pub- 
 lications of the Navy Department should be 
 judicially noticed by courts-martial without 
 being offered in evidence. (See Naval Coui"ta 
 and Boards, 1917.) 
 
 Sec. 883. [Copies of records in oflace of Solicitor of Treasury.] Copies of any 
 documents, records, books, or papers in the office of the Solicitor of the Treas- 
 ury, certified by him under the seal of his office, or, when his office is vacant, 
 by the officer acthig as SoHcitor for the time, shall be evidence equally "with 
 the originals.— (22 Feb., 1849, c. 61, s. 2, v. 9, p. 347.) 
 
 Sec. 886. [Transcripts from records of Treasury.] Wlien suit is brought in 
 any case of delinquency of a revenue officer, or other person accoimtable for 
 public money, a transcript from the books and proceedings of the Treasury 
 Department, certified by the Register and authenticated under the seal of 
 the Department, or, when the suit involves the accounts of the War or Navy 
 Departments, certified by the Auditors respectively charged with the exami- 
 nation of those accounts, and authenticated under the seal of the Treasmy 
 Department, shall be admitted as evidence, and the court trying the cause 
 shall be authorized to grant judgment and award execution accordmgly. And 
 all copies of bonds, contracts, or other papers relatmg to, or connected with, 
 the settlement of any account between the United States and an individual, 
 when certified by the Register, or by such Auditor, as the case may be, to be 
 true copies of the originals on file, and authenticated imder the seal of the 
 Department, may be annexed to such transcripts, and shall have equal validity, 
 and be entitled to the same degree of credit which would be due to the original 
 
 54641°— 22- 
 
 -28 
 
 427 
 
Sec. 806. Pt. 2. REVISED STATUTES. The Judiciary. 
 
 papers if produced and authenticated in court: Provided, That where suit is 
 brought upon a bond or other sealed instrument, and the defendant pleads 
 "non est factum," or makes his motion to the court, verifying such plea or 
 motion by his oath, the court may take the same into consideration, and, if it 
 appears to be necessary for the attainment of justice, may require the produc- 
 tion of the original bond, contract, or other paper specified in such affidavit. — 
 (3 Mar., 1797, c. 20, s. 1, v. 1, p. 512; 3 Mar., 1817, c. 45, s. 11, v. 3, p. 367; 
 Walton V. U. S., 9 Wh., 651 ; U. S. v. Buford, 3 Pet., 12; Smith v. U. S., 5 Pet., 
 292; Coxv. U.S., 6 Pet., 172; U. S. v. Jones, 8 Pet., 375; Gratiot v. U. S., 
 15 Pet., 336; U. S. v. Irving, 1 How., 250; Hoyt v, U. S., 10 How., 109; Bruce 
 V. U. S., 17 How., 437; U. S. v. Edwards, 1 McLean, 467; U. S. v. Hilhard 
 et al., 3 McLean, 324; U. S. v. Lent, 1 Paine, 417; U. S. v. Martin, 2 Paine, 
 68; U. S. V. Van Zandt, 2 Cr. C. C, 328; U. S. v. Griffith, 2 Cr. C. C, 336; 
 U. S. V. Lee, 2 Cr. C. C, 462; U. S. v. Harrill, 1 McAll., 243; U. S. v. Mattison, 
 Gilp., 44; U. S. v. Corwin, 1 Bond, 149; U. S. v. Gaussen, 19 Wall., 198.) 
 
 This section was amended by act of July 31, 1894, 
 eection 17 (28 Stat., 210), as amended by 
 act of March 2, 1895, section 10 (28 Stat., 809), 
 
 80 as to require that "the transcripts from 
 the books and proceeding of the Depart- 
 ment of the Treasury and the copies of the 
 
 bonds, contracts, and other papers pro- 
 vided for" in section 886, Revised Stat- 
 utes, "shall hereafter be certified by the 
 Secretary or an Assistant Secretary of the 
 Treasury imder the seal of the Depart- 
 ment." 
 
 Sec. 887. [Evidence in embezzlement cases.] Upon the trial of any indict- 
 ment agamst any person for embezzling public moneys, it shall be sufficient 
 evidence, for the purpose of showing a balance against such person, to produce 
 a transcript from the books and proceedings of the Treasury Department, as 
 provided by the preceding section. — (6 Aug., 1846, c. 90, s. 16, v. 9, p. 63; 
 2 Mar., 1797, c. 20, s. 1, v. 1, p. 512. U. S. v. Gaussen, 19 Wall., 198.) 
 
 A similar provision is contained in the Criminal 
 
 Code, act March 4, 1909, section 93 (35 
 
 Stat., 1105). 
 A provision that transcript from account books 
 
 of Auditor for Post Office Department shall 
 
 be prima facie evidence of balance against 
 
 person on trial for embezzlement of postal 
 
 funds, is contained in the Criminal Code, 
 
 act of March 4, 1909, section 225 (35 Stat., 
 
 1133.) 
 Accepting or transmitting to Treasury Depart- 
 ment for allowance, receipt from creditor 
 
 of the United States without having paid 
 
 full amount specified therein, is evidence 
 
 of conversion. (Criminal Code, act Mar. 4, 
 1909, sec. 95, 35 Stat., 1106.) 
 
 Failure to produce or pay over postal funds 
 when required is prima facie evidence of 
 embezzlement. (Criminal Code, act Mar. 
 4, 1909, sec. 225, 35 Stat., 1133.) 
 
 On general subject of embezzlement see sec- 
 tions 89-96, Criminal Code, act March 4, 
 1909 (35 Stat., 1105, 1106), and section 
 1624, Revised Statutes, article 14. 
 
 Refusal of officer to surrender or transfer pubUc 
 funds when required is prima facie evidence 
 of embezzlement. (Criminal Code, act 
 Mar. 4, 1909, sec. 94, 35 Stat., 1106.) 
 
 Sec. 888. [Copies of records in Returns Office.] A copy of any return of a 
 contract returned and filed in the returns-office of the Department of the Inte- 
 rior, as provided by law, when certified by the clerk of the said office to be full and 
 complete, and when authenticated by the seal of tlie Department, shall be evi- 
 dence in any prosecution agamst any officer for falsely and corruptly swearmg 
 to the affidavit required by law to be made by such officer in making his return 
 of any contract, as required by law, to said returns-office. [See § 3744,] — (2 
 June, 1862, c. 93, s. 4, v. 12, p. 412.) 
 
 See sections 512-515, Revised Statutes, relating to Returns Office. 
 
 Sec. 895. [Extracts from Journals of Congress.] Extracts from the Journals 
 of the Senate, or of the House of Representatives, and of the Executive Journal 
 of the Senate when the injunction of secrecy is removed, certified by the Secre- 
 
 428 
 
The Judiciary. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 90d. 
 
 tary of the Senate or by the Clerk of the House of Representatives, shall be 
 admitted as evidence in the courts of the United States, and shall have the 
 same force and effect as the originals would have if produced and authenticated 
 in court.— (8 Aug., 1846, c. 107, s. 1, v. 9, p. 80.) 
 
 See section 859, Revised Statutes, concerning testimony given by witnesses before Congress. 
 
 Sec. 896. [Copies of records in consular offices.] Copies of all official docu- 
 ments and papers in the office of any consul, vice-consul, or commercial agent 
 of the United States, and of all official entries in the books or records of any 
 such office, certffied imder the hand and seal of such officer, shall be admitted 
 in evidence in the courts of the United States. [See § 1707.] — (8 Jan., 1869, 
 c. 7, V. 15, p. 266.) 
 
 Copies of protests or declarations before consular officers are admissible in evidence under 
 section 1707, Revised Statutes. 
 
 Sec. 905. [Authentication of State laws and records.] The acts of the legis- 
 lature of any State or Territory, or of any country subject to the jurisdiction 
 of the United States, shall be authenticated by having the seals of such State, 
 Territory, or country affijced thereto. The records and judicial proceedings of 
 the courts of any State or Territory, or of any such country, shall be proved or 
 admitted in any other court within the United States, by the attestation of the 
 clerk, and the seal of the court amiexed, if there be a seal, together with a cer- 
 tificate of the judge, chief justice, or presiding magistrate, that the said attesta- 
 tion is in due form. And the said records and judicial proceedings, so authenti- 
 cated, shall have such faith and credit given to them in every court within the 
 United States as they have by law or usage in the courts of the State from which 
 they are taken.— (26 May., 1790, c. 11, v. 1, p. 122; 27 Mar., 1804, c. 56, s. 2, 
 v. 2, p. 299; Ferguson v. Harwood, 7 Cr., 408; Mills v. Duryee, 7 Cr., 481; 
 U. S. V. Amedy, 11 Wh., 392; Buckner v. Finley, 2 Pet., 592; Owings v. Hull, 
 9 Pet., 627; Urtetiqui v. D'Arbel, 9 Pet., 700; McEhnoyle v. Cohen, 13 Pet., 
 312; Stacey v. Thrasher, 6 How., 44; Bank of Alabama v. Dal ton, 9 How., 
 522; D'Arcy v. Ketchum, 11 How., 165; Railroad v. Howard, 13 How., 307; 
 Booth V. Clark, 17 How., 322; Mason v. Lawrason, 1 Cr. C. C, 190; Buford v. 
 Hickman, Hemp., 232; Craig v. Brown, Pet. C. C, 354; Stewart v. Gray, 
 Hemp., 94; Gardner v. Lindo, 1 Cr. C. C, 78; Trigg v. Conway, Hemp., 538; 
 Turner v. Waddington, 3 Wash. C. C, 126; Cathn v. Underbill, 4 McLean, 199; 
 Morgan v. Curtenius, 4 McLean, 366; Hale v. Brotherton, 3 Cr. C. C, 594; 
 Mewster v. Spaldmg, 6 McLean, 24; Parrot v. Habersham, 1 Cr. C. C, 14; 
 Talcott V. Delaware Ins. Co., 2 Wash. C. C, 449; James v. Stookey, 1 Wash. 
 C. C, 330; Bennett v. Bennett, District Court, Oregon, 1867.) 
 
 Revised Statutes of the United States (first 
 edition ): Printed volume legal evidence of 
 the laws therein contained (act June 20, 
 1874, sec. 2, 18 Stat., 113). 
 
 Revised Statutes of the United States (^second 
 edition): Printed volume legal evidence of 
 the laws therein contained, but shall not 
 preclude reference to nor control in case of 
 discrepancy the effect of any original act 
 as passed by Congress since December 1, 
 1873. (Act Mar. 2, 1877, sec. 4, 19 Stat., 
 269, as amended by act Mar. 9, 1878, 20 
 Stat., 27.) 
 
 Statutes at Large: Printed volumes legal evi- 
 dence of laws and treaties therein con- 
 tained. (Act June 20, 1874, sec. 8, 18 
 Stat., 114; act Jan. 12, 1894, sec. 73, 28 
 Stat., 612.) 
 Judicial notice of State laws. — The 
 National and State courts, not being foreign to 
 one another, as the State courts are, but sub- 
 ordinate courts of a complete system of Govern- 
 ment, with limited and separate jurisdiction; 
 and the former having judicial knowledge of 
 the laws of the several States, and therefore of 
 the mode of authenticating the judicial records 
 
 429 
 
Sec. 906. Pt. 2. REVISED STATUTES. The Judiciary. 
 
 thereof, a statute prescribing the mode of prov- 
 ing the judicial records of a State when used in 
 another State does not apply to a case where 
 such record is sought to be used in a national 
 court. (Bennett v. Bennett, 3 Fed. Cas. No. 
 1318; see also, as to judicial notice by courts 
 of the United States of the public statutes of 
 the several States, Merchants Exch. Bank v. 
 McGraw, 59 Fed. Rep., 972; Owinga v. Hull, 
 9 Pet., 625; Bank v. Francklyn, 120 U. S., 747; 
 Lamar v. Micou, 114 U. S., 857; Gormley v. 
 Bunyan, 138 U. S., 453.) 
 All Federal courts, when exercising original 
 
 State where they are sitting, but of every other 
 State and of every Territory. All courts in 
 the United States take judicial notice of the 
 United States Constitution and amendments 
 thereto, and of the public statutes enacted by 
 Congress. Judicial knowledge of a statute in- 
 cludes the date when it went into effect, when 
 it was suspended or repealed, and facta recited 
 or recognized in the statute. (See 16 Cyc, 889, 
 890, 892, and cases there cited.) 
 
 Naval cotirts-m.artial must take judicial 
 notice of the law of a State which is pertinent 
 to a case on trial, without such law having been 
 
 jurisdiction, take judicial notice of the consti- j offered in evidence. (C. M. O. 27, 1913, p. 8.) 
 tutions and public statutes, not only of the | 
 
 Sec. 906. [Proof of State records other than judicial.] iVll records and exem- 
 plifications of books, which may be kept in any pubUc office of any State or 
 Territory, or of any country subject to the jurisdiction of the United States, 
 not appertaumig to a court, shall be proved or admitted m any court or office 
 in any other State or Territory, or in any such country, by the attestation of 
 the keeper of the said records or books, and the seal of his office annexed, if 
 there be a seal, together with a certificate of the presidmg justice of the court 
 of the county, parish, or district in which such office may be kept, or of the 
 governor, or secretary of state, the chancellor or keeper of the great seal, of 
 the State, or Territory, or country, that the said attestation is in due form, 
 and by the proper officers. If the said certificate is given by the presiding 
 justice of a court, it shall be further authenticated by the clerk or prothonotary 
 of the said court, who shaU certify, under his hand and the seal of his office, 
 that the said presiduig justice is duly commissioned and qualified; or, if given 
 by such governor, secretary, chancellor, or keeper of the great seal, it shall be 
 under the great seal of the State, Territory, or country aforesaid m which it is 
 made. And the said records and exemphfications, so authenticated, shall have 
 such faith and credit given to them in every court and office within the United 
 States as they have by law or usage in the courts or offices of the State, Terri- 
 tory, or country, as aforesaid, from which they are taken. — (27 Mar., 1804, 
 c. 56, ss. 1, 2, V. 2, pp. 298, 299; 21 Feb., 1871, c. 62, v. 16, p. 419.) 
 
 430 
 
CHAPTER EIGHTEEN. 
 
 PROCEDURE. 
 
 Sec. 1023. [Perjury before naval court-martial.] In prosecutions for per- 
 jury committed on examination before a naval general court-martial, or for the 
 subornation thereof, it shaU be sufficient to set forth the offense charged on 
 the defendant, without setting forth the authority by which the court was 
 held, or the particular matters brought before, or intended to be brought 
 before said court.— (17 July, 1862, c. 204, s. 1, art. 13, v. 12, p. 604.) 
 
 Perjury committed by persons in the naval 
 servdce is punishable under section 1624, 
 Re^dsed Statutes, article 14, clause 4, and 
 articles 22 and 42. 
 
 Perjury is defined and made punishable by fine 
 and imprisonment, by the Criminal Code, 
 act March 4, 1909, section 125 (35 Stat.,. 
 nil). 
 
 431 
 
CHAPTER TWENTY-ONE. 
 
 THE COURT OF CLAIMS— JURISDICTION, POWERS, AND 
 
 PROCEDURE. 
 
 [The Provisions of Existing Law Concerning the Court of Claims Are Contained m the Judicial Code, Act of 
 March 3, 1911, Sections 136-187 (36 Stat., 1135-1143). The Following Sections of the Revised Statutes, which 
 Are Repealed by Section 297 of the Judiclal Code (36 Stat., 1168), Are Noted Below for Convenience in 
 Locating the Corresponding Sections of the Judiclal Code to which They Have Been Transferred.] 
 
 Sec. 1059. [Jurisdiction : Claims against United States ; set-offs ; disbursing 
 officers' responsibility for losses.] See section 145, Judicial Code (36 Stat., 1136). 
 
 Sec. 1061. [Judgments for set-off or counterclaim.] See section 146, 
 Judicial Code (36 Stat., 1137.) 
 
 Sec. 1062. [Decree relieving disbursing officers of responsibility for losses.] 
 See section 147, Judicial Code (36 Stat., 1137). 
 
 Sec. 1063. [Questions referred to Court of Claims by heads of departments.] 
 
 See section 148, Judicial Code (36 Stat., 1137). 
 
 Sec. 1064. [Procedure in cases transmitted by departments.] See section 
 149, Judicial Code (36 Stat., 1138). 
 
 Sec. 1065. [Judgments in cases transmitted by departments; how paid. 
 See section 150, Judicial Code (36 Stat., 1138). 
 
 Sec. 1075. [Commissioners to take testimony.] See section 163, Judicial 
 Code (36 Stat., 1140). 
 
 Sec. 1076. [Power to call upon departments for information.] See section 
 164, Judicial Code (36 Stat., 1140). 
 
 Sec. 1088. [New trial on motion of United States.] See section 175, Judicial 
 Code (36 Stat., 1141). 
 
 432 
 
TITLE XIY. 
 THE ARMY. 
 
 Sec. 
 
 1135. Supplies and transportation for naval and 
 marine detachments. 
 
 1143. Rations, to be furnished naval detach- 
 ments. 
 
 1176. Trusses, to whom furnished. 
 
 1177. Trusses, applications for. 
 
 1178. Trusses, purchase of. 
 
 1225. Detail of Army and Navy officers to 
 educational institutions. 
 
 Sec. 
 
 1229. Dismissal of officers in military or naval 
 service. 
 
 1342, Art. 2. Persons subject to military law. 
 
 1342, Art. 4. Who may serve on courts- 
 martial. 
 
 1342, Art. 120. Command, when different 
 corps happen to join. 
 
 Sec. 1135. [Supplies and transportation for naval and marine detachments.] 
 The officers of the Quartermaster's Department shall, upon the requisition of 
 the naval or marine officer commanding any detachment of seamen or marines 
 under orders to act on shore, in co-operation with land troops, and during the 
 time such detachment is so acting or proceeding to act, furnish the officers and 
 seamen with camp-equip^age, together with transportation for said officers, 
 seamen, and marines, their baggage, provisions, and cannon, and shall furnish 
 the naval officer commanding any such detachment, and his necessary aids, 
 with horses, accouterments, and forage. — (15 Dec, 1814, c. 13, ss. 1,2, v. 3, p. 151.) 
 
 Ordnance or ordnance stores may be trans- 
 ferred or sold to other executive depart- 
 ments, payment to be made by the proper 
 disbursing officer of the department con- 
 cerned, the price to include cost price of 
 the stores and the costs of inspection and 
 transportation. (Act Aug. 24, 1912, 37 
 Stat., 589.) 
 
 Quartermaster-General of Army may sell arti- 
 cles of ser\'iceable quartermaster property 
 to officers of the Navy and Marine Corps 
 for use in the public serv-ice. the same as 
 such articles are sold to officers of the 
 Army. (Act Mar. 4, 1915, 38 Stat., 
 1079.) 
 
 Subsistence supplies of the Army may be sold 
 to officers and enUsted men of the Navy 
 and Marine Corps at same prices charged 
 officers and enlisted men of the Army. 
 (Act Mar. 4, 1915, 38 Stat., 1072.) 
 
 Subsistence supplies furnished by the War 
 Department to another executive depart- 
 ment are to be paid for in cash by the proper 
 disbursing officer of the bureau, office, or 
 department concerned . or by the employee 
 to whom the sale is mafle; the price charged 
 to include the contract or invoice price and 
 10 per cent additional to cover wastage in 
 transit, and the cost of transportation. "(Act 
 Mar. 3, 1911, 36 Stat., 1047.) 
 
 Transportation by or under the instructions of 
 the Quartermaster General of the Army, of 
 property for the civil or naval departments 
 of the Government in Washington or else- 
 
 where, under the regulations governing the 
 transportation of Army supplies, was au- 
 thorized byactof July 5, 1884 (23 Stat., Ill), 
 which provided that the amount paid for 
 such transportation should be refunded or 
 paid by the bureau to wliich such property 
 or stores pertained . 
 
 When in the opinion of the Secretary of War 
 accommodations are available, transporta- 
 tion may be provided for the officers, en- 
 listed men, employees, and supplies of the 
 Navy, the Marine Corps, and other officers 
 of the Government while traveling on offi- 
 cial business, and without expense to the 
 United States for the families of those per- 
 sons herein authorized to be transported. 
 (Act Mar. 2,1907, 34 Stat., 1170.) 
 
 When in the opinion of the Secretary of War 
 accommodations are available, transporta- 
 tion on vessels of the Army transport serv- 
 ice may be furnished to officers, employees, 
 and enlisted men of the Coast Guard and 
 their families, without expense to the 
 United States, and also secretaries and 
 supplies of the Army and Navy depart- 
 ment of the Young Men's Christian Asso- 
 ciation. (Act Mar. 3, 1911, 36 Stat., 1051.) 
 
 When the War Department procures stores or 
 material, or performs any service, for the 
 Navy Department, the funds of the Navy 
 Department may be placed subject to the 
 requisition of the ^^'ar Department for 
 direct expenditure bv it. (Act Mar. 4, 
 1915, 38 Stat., 1084.) 
 
 Sec. 1143. [Rations to be furnished naval detachments.] The officers of the 
 Subsistence Department shall, upon the requisition of the naval or marine offi- 
 
 433 
 
Sec. 1178. 
 
 Pt.2. REVISED STATUTES. 
 
 The Army. 
 
 ccr commanding any dotachmont of seamen or marines under orders to act on 
 shore, in co-operation with the hind troops, and during the time such detach- 
 ment is so acting or proceeding to act, furnish rations to the officers, seamen, 
 and marines of the same. — (15 Dec, 1814, c. 13, s. 1, v. 3, p. 151.) 
 
 Provision for supplyinc; enlisted men of the Ma- 
 rine Corps with the Army or Navy ration, 
 or commutation therefor, under varying 
 
 conditions, was made by section 1615, Re- 
 vised Statutes, and act of March 4, 1913(37 
 Stat., 909). 
 
 Sec. 1176. [Trusses, to whom furnished. Superseded.] 
 
 This section provided as follows: 
 
 "Sec. 117(). Every soldier of the Union Army 
 who was ruptured while in the line of duty dur- 
 ing the war for the suppression of the rebellion, 
 is entitled to receive a single or double truss, of 
 such style as may be designated by the Surgeon 
 General, as best suited for his disability." — (28 
 May, 1872, c. 228, s. 1, v. 17, p. 164.) 
 
 It was superseded by the following pro- 
 vL^^ion of the actof ^hirch 3, 1879 (20 Stat., 353): 
 
 "That section one of the act entitled 'An act 
 to provide for furni.-^hing tnisses to disabled sol- 
 diers,' approved May twenty -eighth, eighteen 
 hundred and seventy-two [incorporated in sec- 
 tion 1176, Revised Statutes], be, and the same is 
 hereby, amended so that said section shall read 
 as follows: 
 
 "That every soldier of the Union Army, or 
 petty-officer, seaman, or marine in the naval 
 service, who was ruptured while in the line of 
 duty during the late war for the suppression of 
 the rebellion, or who shall be so ruptured there- 
 after in any war, shall be entitled to receive a 
 single or double truss of such style as may be 
 designated by the Surgeon General of the 
 United States Army as best suited for such 
 disability ; 
 
 "And whenever the said truss or trusses so 
 furnished shall become useless from wear, de- 
 struction, or loss, such soldier, petty-officer, sea- 
 man, or marine shall be supplied with another 
 truss on making a like application as provided 
 for in section two of the original act of which 
 this is an amendment: 
 
 ^^ Provided, That such application shall not be 
 made more than once in two years and six 
 months; * * *" 
 
 The words "section two of the original 
 act," as used in the above enactment of March 
 3, 1879, refer to section 2 of the act of May 28, 
 1872, which is incorporated in section 1177, Re- 
 vised Statutes, set forth below. 
 
 Artificial limbs or commutation therefor are 
 allowed officers, soldiers, seamen, and marines 
 who shall have lost a limb in the line of duty in 
 the military or naval service, by act of August 
 15, 1876 (19 Stat., 203). See also section 4787, 
 Revised Statutes, as amended by acts of Febru- 
 ary 27, 1877, section 1(19 Stat., 252) and March 3, 
 1891 (26 Stat., 1103); and see sections 4788-4791, 
 Revised Statutes, as amended by acts of Febru- 
 ary 27, 1877 (19 Stat., 252) and March 3, 1891 
 (26 Stat, 979). 
 
 Sec. 1177. [Trusses, application for.] Application for such truss shall be 
 made by the ruptured soldier, to an examining surgeon for pensions, whose 
 duty it shall be to examine the applicant, and when found to have a rupture or 
 hernia, to prepare and forward to the Surgeon-General an application for such 
 truss without charge to the soldier. [See § 4787.] — (28 May, 1872, c. 228, s. 2, 
 V. 17, p. 164.) 
 
 ice, as well as to soldiers of the Army." Sec- 
 tion 2 of the act mentioned was incorporated in 
 section 1177, Revised Statutes, and section 3 of 
 said act was embodied in section 1178, Revised 
 Statutes. 
 
 This section was amended by act of March 
 3, 1879 (20 Stat., 353), which provided, "That 
 sections two and three of the said act of May 
 twenty-eighth, eighteen hundred and seventy- 
 two, shall be construed so as to apply to petty 
 officers, seamen, and marines of the naval serv- 
 
 Sec. 1178. [Trusses, purchase of.] The Surgeon-General is authorized and 
 directed to purcliase tlic trusses required for such soldiers, at wholesale prices, 
 and tlie cost of the same shall be paid upon the requisition of the Surgeon- 
 General out of any moneys in the Treasury not otherwise apiDropriated. — (26 
 May, 1872, c. 228, s. 3, v. 17, p. 164.) 
 
 This section was amended by act of March 
 3, 1879, quoted above, under section 1177, Re- 
 vised Statutes. 
 
 It was repealed in part by the following 
 provision of the act of I\Iay 27, 1908 (35 Stat. , 367) : 
 "So much of section eleven hundred and 
 eeventy-eight of the Revised Statutes of the 
 United States as makes a permanent indefinite 
 
 appropriation to purchase trusses for soldiers, 
 is repealed, to take effect after June thirtieth, 
 nineteen hundred and nine, and estimates of 
 sufficient sums for the purchase of such trusses 
 shall be submitted to Congress for the fiscal 
 year nineteen hundred and ten, and annually 
 thereafter, in the regular Book of Estimates." 
 
 434 
 
The Army. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1225. 
 
 Sec. 1225. [Detail of Army and Navy officers to educational institutions.] 
 The President may, upon the apphcation of any estabhshed mihtary institute, 
 seminary or academy, college or university, within the United States having 
 capacity to educate at the same time not less than one hundred and fifty male 
 students, detail an officer of the Army or Navy to act as superintendent, or 
 professor thereof; but the number of officers so detailed shall not exceed fifty 
 from the Army, and ten from the Navy, being a maximum of sixty, at any time, 
 and they shall be apportioned throughout the United States, first, to those 
 State institutions applying for such detail that are required to provide instruc- 
 tion in mihtary tactics under the provisions of the act of Congress of Jaly 
 second, eighteen hundi-ed and sixty-two, donating lands for the estabHshment 
 of colleges where the leading object shall be the practical instruction of the 
 industrial classes in agriculture and the mechanic arts, including mihtary 
 tactics; and after that, said details to be distributed, as nearly as may be 
 practicable, according to population. Tho Secretary of War is authorized to 
 issue, at his discretion and under proper regulations to be prescribed by him, 
 out of ordnance and ordnance stores belonging to the Government, and which 
 can be spared for that purpose, such number of the same as may appear to 
 be required for mihtary instruction and practice by the students of any coUege 
 or university under the provisions of this section, and the Secretary shall 
 require a bond in each case, in double the value of the property, for the care 
 and safe keeping thereof, and for the retiu'n of the same when required. 
 
 This section •was expressly amended and 
 reenacted to read as above by act of September 
 26, 1888 (25 Stat., 491), section 2 of which act 
 provided "That the said section twelve hun- 
 dred and twenty-five of the Revised St.;tutes 
 of the United States, as amended by the said 
 act of Congress approved July fiith, eighteen 
 hundred and eighty-four, and all acts and parts 
 of acts inconsistent or in conflict with the pro- 
 visions of this act, be, and the same are hereby, 
 repealed, saving always, however, all acts and 
 things done under the said amended section as 
 heretofore existing." 
 
 As originally enacted, this section pro- 
 \'ided as follows : 
 
 "Sec. 1225. The President may, upon the 
 application of any established college or uni- 
 versity within the United States, having capac- 
 ity to educate, at the same time, not less than 
 one hundred and fifty male students, detail an 
 officer of the Army to act as president, superin- 
 tendent, or professor thereof; but the number 
 of officers so detailed shall not exceed twenty 
 at any time, and they shall be apportioned 
 throughout the United States, as nearly as may 
 be practicable, according to population. Offi- 
 cers so detailed shall be governed by general 
 rules prescribed, from time to time, by the 
 President. The Secretary of War is authorized 
 to issue at his discretion and under proper regu- 
 lations to be prescribed by him, out of any 
 small arms or pieces of field artillery belonging 
 to the Government and which can be spared 
 for that purpose, such nimiber of the same as 
 may appear to be required for military instruc- 
 tion and practice, by the students of any college 
 or university under the provisions of this sec- 
 tion; and the Secretary shall require a bond in 
 each case, in double the value of the property, 
 
 for the care and safe-keeping thereof, and for 
 the return of the same when required." 28 
 July, 1866, c. 229, s. 26, v. 14, p. 336. 4 May, 
 1870, res. 40, v. 16, p. 373. 
 
 By act of July 6, 1876 (19 Stat., 74), the 
 maximum number of officers to be detailed to 
 educational institutions was increased from 
 twenty, as authorized by the original section 
 1225, to thirty, and by act of July 5, 1884 (23 
 Stat., 108), was further increased to forty, until 
 section 1225 was amended and reenacted as set 
 forth above by act of September 26, 1888 (25 
 Stat., 491). 
 
 OTHER LAWS AUTHORIZING DETAILS TO gDXJCA- 
 • TIONAL INSTITUTIONS. 
 
 Sec. 1260, R.S.: "Any retired officer may, on 
 his own application, be detailed to serve as pro- 
 fessor in any college. [But while so serving, 
 such officer shall be allowed no additional com- 
 pensation.]" — (15 July, 1870, C.294, s. 23, v. 
 16, p. 320. 27 Feb., 1877, c. 69, v. 19, p. 243.) 
 
 Act Fchruary 26, 1879 {20 Stat., 322): "That 
 for the pm-pose of promoting a knowledge 
 of steam engineering and iron shipbuilding 
 among the young men of the United States, 
 the President may, upon the application of an 
 established scientific school or college within 
 the United States, detail an officer from the 
 Engineer Corps of the Navy as professor in such 
 school or college: Provided, That the number of 
 officers so detailed shall not at any time exceed 
 twenty-five, and such details shall be governed 
 by rules to be prescribed from time to time by 
 the President: And provided further. That such 
 details may be withheld or withdrawn when- 
 ever, in the judgment of the President, the in- 
 terests of the public service shall so require." 
 
 435 
 
Sec. 1225. 
 
 Pt.2. REVISED STATUTES. 
 
 The Army. 
 
 [The "Eiifxinoer Corps of the Navy" was 
 abolishod and (heporsonnol thereof transferred 
 to the line of the Navy by act of March 3, 1899 
 (30 Stat., 1004). See note to section 1390, Re- 
 vised Statute.] 
 
 Act Mivj <, ISSO {21 Stat., /iJ).- "Upon the 
 application of any college, university, or insti- 
 tution of k'arninu; incorporated under the laws 
 of any State witliin the United States, having 
 capacity at the same time to educate not less 
 than one liundred and lifty male students, the 
 President may detail an oilicer of the Army on 
 the retired list to act as president, superintend- 
 ent, or professor thereof; and such oilicer may 
 receive from the institution to which he may be 
 detailed the difference between his retired and 
 full pay, and shall not receive any additional 
 pay or allowance from the United States." 
 
 Act September 26, 1S8S {25 Slat., 491): ''Pro- 
 vided, That nothing in this act shall be so con- 
 strued as to prevent the detail of officers of the 
 En<:ineer Corps of the Navy as professors in 
 scientific schools or colleges as now provided by 
 act of Congress approved February twenty- 
 sixth, eighteen hundred and seventy-nine, 
 entitled 'An act to promote a knowledge of 
 steam engineering and iron shipbuilding among 
 the students of scientific schools or colleges in 
 the United States.' " [The act of September 26, 
 1888, from which this provision is taken, reen- 
 acted section 1225, Revised Statutes, as set forth 
 above. As to the "Engineer Corps of the 
 Navy ' ' see note above to act of February 26, 
 1879.] 
 
 Act January 13, 1891 (26 Stat., 716): "That 
 section twelve hxindred and twenty-five of the 
 Re^^sed Statutes, concerning details of officers 
 of the Army and Navy to educational institu- 
 tions, be, and the same is hereby, amended so as 
 permit the President to detail, under the pro- 
 visions of said act, not to exceed seventy-five 
 officers of the Army of the United States; and 
 the maximum number of officers of the Army 
 and Na\'j^ to be detailed at any one time under 
 the provision of the act passed September 
 twenty-sixth, eighteen hundred and eighty- 
 eight, amending said section twelve hundred 
 and twenty-five of the Revised Statutes, is 
 hereby increased to eighty-five: Provided, That 
 no officer shall be detailed to or maintained at 
 any of the educational institutions mentioned 
 in said act where instruction and drill in mili- 
 tary tactics is not given: Provided further, That 
 nothing in this act shall be so construed as to 
 prevent the detail of officers of the Engineer 
 Corps of the Navy as professors in scientific 
 schools or colleges as now provided by act of 
 Congress approved February twenty-sixth, 
 eighteen hundred and seventy-nine, entitled 
 'An act to promote a knowledge of steam 
 engineering and iron shipbuilding among the 
 students of scientific schools or colleges in the 
 United States.' " [As to the "Engineer Corps 
 of the Navy," see note above to act of February 
 26, 1879.] 
 
 _ Act Novembers, 1893 (28 Stat., 7): "That sec- 
 tion twelve hundred and twenty-five of the 
 Revised Statutes, concerning details of officers 
 of the Army and Navy to educational institu- 
 tions, be, and the same is hereby, amended so 
 as to permit the President to detail under the 
 provisions of said act not to exceed one hundred 
 
 officers of the Army of the United States; and 
 no ofiicer shall be thus detailed who has not had 
 five years' service in the Army, and no detail to 
 such duty shall extend for more than four years; 
 and officers on the retired list of the Army may 
 upon their own application be detailed to such 
 duty, and when sodetailed shall receive the full 
 pay of their rank; and the maximum number 
 of officers of the Army and Navy to be detailed 
 at any one time under the provisions of the act 
 approved January thirteenth, eighteen hundred 
 and ninety-one, amending section twelve hun- 
 dred and twenty-five of the Revised Statutes as 
 amended by an act approved September 
 twenty-sixth, eighteen hundred and eighty- 
 eight, is hereby increased to one hundred and 
 ten." 
 
 Act August 6, 1894 {28 Stat., 235): "Nothing 
 in the act entitled 'An act to increase the num- 
 ber of officers of the Army to l)e detailed to col- 
 leges, ' approved November third, eighteen hun- 
 dred and ninety- three, shall be so construed as 
 to prevent, limit, or restrict the detail of retired 
 officers of the Army at institutions of learning 
 under the provisions of section twelve hundred 
 and sixty. Revised Statutes, and the act mak- 
 ing appropriations for the support of the Army, 
 and so forth, approved May fourth, eighteen 
 hundred and eighty, nor to forl)id the issue of 
 ordnance and ordnance stores, as provided in 
 the act approved September twenty-sixth, 
 eighteen hundred and eighty-eight, amending 
 section twelve hundred and twenty-five, Re- 
 used Statutes, to the institutions at which re- 
 tired officers may be so detailed; and said act 
 of November third, eighteen hundred and 
 ninety-three, and said act of May fourth, eight- 
 een hundred and eighty, shall not be construed 
 to allow the full pay of their rank to retired offi- 
 cers detailed under said section twelve hundred 
 and sixty, Revised Statutes, and said act of May 
 fourth, eighteen hundred and eighty." 
 
 Act March 2, 1895 {28 Stat., 826): "Any re- 
 tired officer of the Navy or Marine Corps may, 
 on his own application, be detailed to service as 
 a teacher or professor in any school or college, 
 but while so serving such officer shall be allowed 
 no additional compensation." 
 
 ActFehruan/26,1901 (31 Stat., 810): "Whereas 
 the national defense must depend upon the vol- 
 unteer service of the people of the several States; 
 and 
 
 "Whereas those schools which shall adopt a 
 system of military instruction are entitled to the 
 assistance of the Government in order to secure 
 to the United States such a knowledge of mili- 
 tary affairs among the youth of the country as 
 will render them efficient as volunteers if called 
 upon for the national defense: Therefore, 
 
 "Be it enacted by the Senate and House of Rep- 
 resentatives o J the United States of Americain Con- 
 gress assembled, That section twelve hundred 
 and twenty-five of the Revised Statutes, con- 
 cerning the detail of officers of the Army and 
 Navy to educational institutions be, and the 
 same is hereby, amended so as fo permit the 
 President to detail under the provisions of that 
 act, and in addition to the detail of the officers 
 of the Army and Navy now authorized to be 
 detailed under the existing provisions of said 
 act, such retired officers of the Army and Naw 
 of the United States as in his judgment may be 
 
 436 
 
The Army. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1225. 
 
 required for that purpose, to act aa instructors 
 in. military'' drill and tactics in schools in the 
 United States, where such instruction shall 
 have been authorized by the educational au- 
 thorities thereof, and where the ser\'ices of sucli 
 instructors shall have been applied for by said 
 authorities. 
 
 "Sec. 2. That no detail shall lie made under 
 this act to any school unless it shall pay the 
 cost of commutation of quarters of the retired 
 officers detailed thereto and the extra-duty pay 
 to which the latter may be entitled by law to 
 receive for the performance of special duty: 
 Provided, That no detail shall be made under 
 the provisions of this act unless the officers to 
 be detailed are willing to accept such position 
 without compensation from the Goverimient 
 other than their retired pay." 
 
 Act April 21, 1904 {33 Stat., 225): "That sec- 
 tion twelve hundred and twenty-five of the 
 Revised Statutes, concerning the detail of 
 officers of the Army and Navy to educational 
 institutions, be, and the same is hereby, 
 amended so as to permit the President to detail 
 under the provisions of that act, and in addi- 
 tion to the detail of the officers of the Army and 
 Navy now authorized to be detailed under the 
 existing provisions of said act, such retired 
 officers and noncommissioned officers of the 
 Army and Navy of the United States as in his 
 judgment may be required for that purpose to 
 act as instructors in military drill and tactics 
 in schools in the United States and Territories 
 where such instructions shall have been 
 authorized by the educational authorities 
 thereof, and where the services of such instruc- 
 tors shall have been applied for by said 
 authorities. 
 
 "Sec. 2. That no detail shall be made under 
 this act to any school unless it shall pay the 
 cost of commutation of quarters of the 
 retired officers or noncommissioned officers 
 detailed thereto and the extra-duty pay to 
 which they may be entitled by law to receive 
 for the performance of special duty: Provided, 
 That no detail shall be made under the provi- 
 sions of this act unless the officers and non- 
 commissioned officers to be detailed are willing 
 to accept such position : Provided further , That 
 they shall receive no compensation from the 
 Government other than their retired pay." 
 
 Act March 3, 1909 (35 Stat., 738): "That the 
 act approved November third, eighteen hun- 
 dred and ninety-three, authorizing the detail 
 of officers of the Army and Navy to educational 
 institutions, be amended so as to provide that 
 retired officers, when so detailed, shall receive 
 the full pay and allowances of their rank, ex- 
 cept that the limitations on the pay of officers 
 of the Army above the grade of major as pro- 
 vided in the acts of March second, nineteen 
 hundred and five, and June twelfth, nineteen 
 hundred and and six, shall remain in force." 
 
 Act March 4, 1911, section 3 (33 Stat., 1353): 
 "That the President of the United States is 
 hereby authorized, when in his opinion the 
 same can be done without detriment to the 
 public service, to detail proper officers of the 
 Navy as superintendents of or instructors in 
 such schools: Provided, That if any such school 
 shall be discontinued, or the good of the naval 
 service shall require, such vessel shall be imme- 
 
 diately restored to the Secretary of the Navy 
 and the officers so detailed recalled: And pro- 
 vided further , That no person shall be sentenced 
 to or received at such schools as a punishment 
 or commutation of punishment for crime." 
 [The schools referred to in this section are 
 certain nautical schools, or schools or colleges 
 having a nautical branch.] 
 
 Act June 3, 1916, section 45 (39 Stat., 192): 
 "The President is hereby authorized to detail 
 such numbers of officers of the Army, either 
 active or retired, not above the grade of colonel, 
 as may be necessary, for duty as professors and 
 assistant professors of military science and 
 tactics at institutions where one or more units 
 of the Reserve Officers' Training Corps are 
 maintained; but the total number of active 
 officers so detailed at educational institutions 
 shall not exceed three hundred, and no active 
 officer shall be so detailed who has not had five 
 years' commissioned service in the Army. In 
 time of peace retired officers shall not be 
 detailed under the provisions of this section 
 without their consent. Retired officers below 
 the grade of lieutenant colonel so detailed shall 
 receive the full pay and allowances of their 
 grade, and retired officers above the grade of 
 major so detailed shall receive the same pay 
 and allowances as a retired major would receive 
 under a like detail. No detail of officers on the 
 active list of the Regular Army under the pro- 
 visions of this section shall extend for more 
 than four years." 
 
 Act June3, 1916, section46 (39 Stat., 192): "The 
 President is hereby authorized to detail for 
 duty at institutions where one or more units of 
 the Reserve Officers' Training Corps are main- 
 tained such number of enlisted men, either 
 active or retired orof the Regular Army Reserve, 
 as he may deem necessarj^ Itut the number of 
 active noncommissioned officers so detailed 
 shall not exceed five hundred, and all active 
 noncommissioned officers so detailed shall be 
 additional in their respective grades to those 
 otherwise authorized for the Army. Retired 
 enlisted men or members of the Regular Army 
 Reser\^e shall not be detailed under the pro- 
 \T.sions of this section ^vithout their consent. 
 WTiile so detailed they shall receive acti^'e pay 
 and allowances. ' ' 
 
 Act June3 ,1916, section56(39 Stat. J97):"Such. 
 arms, tentage, and equipment as the Secretary 
 of War shall deem necessary for proper military 
 training shall be supplied by the Government 
 to schools and colleges, other than those pro- 
 vided for in section forty-seven of this act, 
 having a course of military training prescribed 
 by the Secretaiy of War and having not less 
 than one hundred physically fit male students 
 above the age of fourteen years, imder such 
 rules and regulations as he may prescrilie; and 
 the Secretary of War is hereby authorized to 
 detail such commissioned and noncommissioned 
 officers of the Army to said schools and colleges, 
 other than those pro\dded for in sections forty- 
 five and forty-six of this act, detailing not less 
 than one such officer or noncommissioned 
 officer to each five hundred students iinder 
 military instruction." [Section 47 of this act 
 provides for ' ' institutions at which one or more 
 units of the Reserve Officers' Training Corps 
 are maintained. ' '] 
 
 437 
 
Sec. 1225. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Army. 
 
 Act September 17, 1919 (41 Stat., 286): "That 
 no officer on the activ'e list [Army] shall be de- 
 tailed for * ■* * duty at schools and col- 
 lejjes, not including; schools of the service, 
 where officers on the retired list can be secured 
 who are competent for such duty." (Similar 
 provision contained in act June 4, 1920, 41 
 Stat., 777.) 
 
 Generous policy in respect to educa- 
 tional institutions. — The policy of the 
 United States has always l)een a generous one in 
 respect to educational institutions. Statutes 
 have been enacted appropriating a particular 
 section in each township of the pul)lic lands 
 for use of schools. By the acts of July 30, 1890 
 (26 Stat., 417), and ]\rarch 4, 1907 (34 Stat., 
 1281), money is annually appropriated to each 
 State and Territory for the more complete en- 
 dowment and maintenance of colleges for the 
 benefit of agriculture and the mechanical arts 
 now established or which may be hereafter 
 established in accordance ^vith the act of Julv 
 2, 1862 (12 Stat., 503). Accordingly, the pro- 
 visions of section 1225, Revised Statutes, should 
 be gi^'en a broad interpretation. (17 Comp. 
 Dec. 691. Mar. 22, 1911.) 
 
 "Within the United States," includes 
 college in Porto Rico. — The words, "upon 
 the application of an established college or 
 university within the United States." as used 
 in section 1225 of the Revised Statutes, were not 
 intended to restrict the benefits of said statute 
 to colleges or universities "within the United 
 States," in the sense of the States united, but 
 were used in a l^roader sense and embrace the 
 organized contiguous Territories; and the act 
 of April 12, 1900 (31 Stat., 79), authorizes the 
 extension of the lienefits of section 1225 as 
 amended to Porto Rico. (17 Comp. Dec, 691, 
 Mar. 22, 1911.) 
 
 "An officer of the Army or Navy" in- 
 cludes a retired officer. — T\Tien the law 
 speaks of "officers of the Army," ^^athout any 
 qualifjang words, it includes officers on the re- 
 tired list as well as those on the active list. 
 Section 1225, as amended by the act of Septem- 
 ber 26, 1888, authorizes the President to detail 
 officers of the Army (without qualif\dng words) 
 for duty at educational institutions; retu-ed 
 officers are included in this authorization. (6 
 Comp. Dec, 120, Aug. 15, 1899.) 
 
 Until the pa-ssage of the act of November 3, 
 1893, there was no authority of law for the detail 
 of retired officers to such duty with the full pay 
 of their rank, details of this kind being limitei 
 to officers on the active list. "I can not be- 
 lieve that a duty to which for many years only 
 officers on the active list were permitted to be 
 assigned is not active duty or ceases to be such 
 when retired officers are permitted on their own 
 application to undertake it." (U Comp. Dec, 
 698, May 18, 1905. As to pay cf retired officers 
 detailed to colleges, see cases noted below.) 
 
 It will be noted that section 1225, Revised 
 Statutes, as amended bv the act of September 26, 
 1888 (25 Stat., 491), refers to the detail of officers 
 "of the Army," butit was never held to apply to 
 retired officers until amended by the act of No- 
 vember 3, 1893 (28 Stat., 7), so as to pro^■ide 
 that "officers on the retired list of the Army 
 
 may upon their own application be detailed to 
 isuch duty, and when so detailed .shall receive 
 the full pay of their rank." This appears to 
 have been the first law authorizing the payment 
 of full pay to retired officers on duty at educa- 
 tional institutions, and it would not apply to or 
 affect details under section 1260, Revised 
 Statutes, or the act of May 4, 1880. (23 Comp. 
 Dec, 500.) 
 
 The act of November 3, 1893, was amended by 
 the act of March 3, 1909. The next legislation 
 on this subject was the act of June 3, 1916. 
 PYom an examination of the various laws rela- 
 tive to the detail of officers to educational in- 
 stitutions, it appears to have been the uniform 
 practice of Congress whenever it intended to 
 provide for the detail of retired officers to desig- 
 nate them specifically and also to stipulate as 
 to the pay they should receive. Section 56 of 
 the act of 1916 makes no specific reference to 
 retired officers or to pay, and Congress did not 
 intend by said section to grant any new 
 authority for the detail of retired officers to 
 educational institutions. Accordingly, held, 
 that the term "commissioned and noncommis- 
 sioned officers of the Armv," as used in section 
 56, act of June 3, 1916 (39 Stat., 197), does not 
 include retired officers, although in its broad 
 sense the Army of the United States does in- 
 clude officers and enlisted men on the retired 
 list. (23 Comp. Dec, 500.) 
 
 For other cases, see note to section 1457, Re- 
 vised Statutes. 
 
 Limitation upon number of officers de- 
 tailed applies both to active and retired 
 List. — The act of November 3, 1893, authorizes 
 the detail of 100 officers from the active list 
 of the Army, but does not require it. Said 
 act leaves it within the discretion of the Presi- 
 dent to make the detail of officers of the Army 
 for colleges wholly from the active list of the 
 Army, or wholly from retired officers, who, 
 "upon their own application," may be detailed 
 for those ser\-ices, or from both lists, in such 
 proportion as he sees fit and as the applications 
 for such detail from the retired officers will 
 allow. No other limit than 100 is set to the 
 number of such officers that can be detailed 
 and these may be taken by the President from 
 either the active or retired list of the Armv, or 
 both. (20 Op. Atty. Gen., 687, Dec. 8, 1893.) 
 
 Restrictions as to length of service in 
 Army and period of detail apply both to 
 active and retired lists. — The ' ' five years' ser- 
 vice in the Army," as well as the limit of detail 
 to four years, applies to officers detailed from 
 the retired as well as from the active list. (20 
 Op. Atty. Gen., 687, Dec 8, 1893.) 
 
 Number of active and retired officers 
 detailed must be apportioned. — By section 
 1225, Revised Statutes, and the acts of Sep- 
 tember 26, 1888, November 3, 1893, and March 3, 
 1909, the President may, upon the application 
 of any established military institute, seminary 
 or academy, college or university, withn the 
 United States, ha\ing a certain capacity, detail 
 an officer of the Army on the active or retired list 
 to act as superintendent, or professor thereof, 
 but such officers so detailed shall be apportioned 
 throughout the United States, first, to those State 
 institutions applying for such detail that are re- 
 quired to provide instruction in military tac- 
 
 438 
 
The Army. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1225, 
 
 tica under the provisions of the act of Congress 
 of July 2, 1862 (12 Stat., 503), donating lands 
 for the establishment of colleges, etc., and after 
 that said details to be distributed as nearly as 
 may be practicable according to population, 
 etc. (17 Comp. Dec, 691, Mar. 22, 1911.) 
 
 Officer bound to obey order to act as 
 professor. — \\Tiere an officer of the Army is 
 detailed by peremptory order to act as professor 
 in a college, under the act of July 28, 1866 (14 
 Stat., 336, sec 26), [embodied in section 1225, 
 Revised Statutes], the order so detailing him 
 is one which he is bound to obev. (Long v. 
 U. S., 8 Ct. Cls., 398, Dec. Term, 1872.) 
 
 Ser\dce as an instructor in an institution of 
 learning, under a detail pursuant to section 1225, 
 Revised Statutes, as amended, is active service 
 to which a retired naval officer may be ordered 
 in time of war; but to which he could not be as- 
 signed, -without his consent, in time of peace. 
 The act of INIarch 2, 1895, applies to cases where 
 retired officers desire to engage as instructors 
 on their own account in purely private institu- 
 tions where military tactics are not taught, 
 and to which Government officers could not 
 therefore be assigned for duty as such; and said 
 act has no reference to the case where an officer 
 might lawfully be ordered to perform such 
 ser\ice "without his consent. A similar provi- 
 sion to the act of March 2, 1895, is found in 
 section 1260, Revised Statutes, with regard to 
 retired officers of the Army, and Congress has 
 made a distinction between employment under 
 that section and under section 1225. See act of 
 August 6, 1894. (5 Comp. Dec, 326, Dec. 19, 
 1898. When this decision was rendered, retired 
 officers of the Navy and Marine Corps could not 
 be employed on active duty except in time of 
 war. See note to sec. 1462, R. S.) 
 
 The act of August 6, 1894, leaves it in the 
 power of the President to detail retired officers 
 of the Army, under the act of May 4, 1880, upon 
 application by the institutions; that is, to make 
 compulsory details. (6 Comp. Dec, 120, Aug. 
 15, 1899.) 
 
 Retired officer may be allowed addi- 
 tional compensation by college. — Section 
 1260, Revised Statutes, refers to additional 
 compensation from the United States, not from 
 the colleges. That this does not refer to any 
 additional compensation from the college, but 
 from the United States, is evident from the lan- 
 guage employed, which does not prohibit the re- 
 ceiving, but the allowing of additional compen- 
 sation. (20 Op. Atty. Gen., 687, Dec. 8, 1893.) 
 
 Pay of retired officers. — A retired officer 
 of the Navy who, in time of war, is detailed to 
 act as superintendent or professor at any edu- 
 cational institution, as provided by section 
 1225, Revised Statutes, and the act of Septem- 
 ber 26, 1888 (25 Stat., 491), is engaged in active 
 service and entitled to active-duty pay, under 
 section 1592, Revised Statutes, dmiiig the con- 
 tinuance of the war. (5 Comp. Dec, 326, 
 Dec. 19, 1898.) 
 
 Officers of the Army on the retired lisi; who, 
 upon their own application, are detailed to 
 educational institutions in accordance with 
 the provisions of the act of November 3, 1893 
 [as part of the limited num):)er of officers author- 
 ized to be detailed by said act], are entitled 
 
 to the full pay of their rank. (6 Comp. Dec, 
 120, Aug. 15, 1899.) 
 
 When, under the act of November 3, 1893, a 
 retired Army officer is detailed as a professor of 
 military science and tactics at a university 
 located in the Island of Porto Rico, such officer 
 is entitled while so detailed to the full pay of 
 his rank. (17 Comp. Dec, 691, Mar. 22, 1911.) 
 
 Officers of the retired list detailed for college 
 duties prior to November 3, 1893, and still on 
 duty under such detail, are entitled to full pay 
 only from the passage of the act of that date, 
 under and by virtue of which alone is their 
 right to full pay derived. (20 Op. Atty. Gen., 
 687, Dec. 8, 1893.) 
 
 Undersectionl225, as amended byact of Sep- 
 tember 26, 1888, which says nothing about pay, 
 retired officers, if so detailed, would be placed 
 on duty and would thereby ordinarily become 
 entitled to the full pay of their grades (citing 
 Long V. U. S., 8 Ct. Cls., 403, holding that "a 
 retired officer when called into service and 
 assigned to duty is entitled to receive the full 
 pay and the emoluments of his rank "). This 
 view would, however, be subject to modifica- 
 tion in case some statute should require it. The 
 act of May 4, 1880, provides that a retired officer 
 ' ' may receive from the institution to which he 
 may be detailed the difference between his 
 retired and full pay, and shall not receive any 
 additional pay or allowance from the United 
 States. ' ' As the law stood after the act of May 
 4, 1880, retired officers detailed to educational 
 institutions could not receive full pay of their 
 grade from the United States, and it would not 
 be material whether the detail was compulsory 
 or made upon application of the officers. (See 
 also sec. 1260, R. S.) The act of November 3, 
 1893, amended section 1225 and entitled retired 
 officers to receive the full pay of their rank, 
 provided the detail is not compulsory, but is 
 made upon the application of said retired offi- 
 cers. The act of August 6, 1894, does not 
 attempt to repeal or modify the act of 1893 in 
 so far as said act of 1893 authorizes full pay for 
 retired officers when they are detailed "upon 
 their own appUcation' ' in making up the maxi- 
 mum of 100 ofhcers, both active and retired, 
 authorized by the act. The act of 1894 still 
 leaves it in the power of the President to detail 
 retired officers under the act of 1880, upon appU- 
 cation by the institutions (or compulsory de- 
 tails), and under section 1260, Revised Statutes, 
 upon apphcation of said retired officers, but 
 when so detailed under the act of 1880 or sec- 
 tion 1260 the officers will not be entitled to any 
 pay or allowance from the United States beyond 
 their pay as retired officers. It is difficult to 
 understand why officers detailed upon their own 
 application under the act of 1893 should be 
 given full pay, and denied it when detailed 
 upon their own appUcation vmder section 1260; 
 or why denied, it when compulsorily detailed 
 under the act of 1880 and other acts; but such 
 must be the construction of the law as it is. 
 (6 Comp. Dec, 120, Aug. 15, 1899.) 
 
 It will be observed that retired officers 
 detailed to educational institutions under the 
 acts of May 4, 1880 (21 Stat., 113), and May 21, 
 1904 (33 Stat., 225), receive only their retired 
 pay and such additional compensation or allow- 
 
 439 
 
Sec. 1225. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Army. 
 
 ances as may be paid by the institution to 
 which cK>lail(Hl. (2S C'omp. Doc. 500.) 
 
 Pay of retired Army officers governed 
 by general laws relating to active duty. — 
 A retired oliicer of the Army with the rank of 
 colonel who was detailed under the act of 
 November 3, 1S93, for duty at an educational 
 institution, was while so detailed "assigned to 
 active duty" within the meaning: of the act of 
 March 2, 1905 (33 Stat., 831), and therefore, 
 under the pro\'ision8 of said act, he was only 
 entitled while so detailed to the full pay and 
 allowances of a major on the active list. (11 
 Comp. Dec, 698, May 18, 1905.) 
 
 The act of March 2, 1905 (33 Stat., 831), refers 
 to the pay of retired odicers of the Army when 
 "assigned "to active duty; the term " assigned " 
 includes "detailed," as a detail is only one 
 method of assignment ; the act of March 2. 1905, 
 therefore applies to retired officers detailed to 
 duty at educational institutions, as such duty 
 is to be regarded as "active duty," and officers 
 so assigned to active duty are entitled only to 
 the rates of pay authorized by that act. (11 
 Comp. Dec., 098, May 18, 1905.) 
 
 An officer of the Army on the retired Ust 
 detailed to duty at an ediicational institution 
 under the act of November 3, 1893, who was 
 advanced from the rank of major to the rank of 
 Ueutenant colonel, under the act of April 23, 
 1904 (33 Stat., 264), on account of civil-war 
 servace, should be regarded for pay purposes as 
 a Ueutenant colonel, and under the act of ^larch 
 2, 1905 (33 Stat., 831), he is, while on such duty, 
 entitled to receive the full pay and allowance 
 of a major on the active List. (16 Comp. Dec, 
 716, May 13, 1910.) 
 
 Pay of retired Navy officers not gov- 
 erned by general laws relating to active 
 duty. — A retired officer of the Navy detailed 
 to service under the act of March 2, 1895, dur- 
 ing tlie period February 7, 1903, to September 
 30, 1903, is not entitled to active-duty pay and 
 commutation of quarters. (Comp. Dec, July 
 18, 1905, 53 S. and A. Memo., 572.) 
 
 The act of June 7, 1900 (31 Stat., 703), which 
 authorized the detail of any retired naval of- 
 ficer to active duty (during a period of twelve 
 years from its date), with "the pay and allow- 
 ances of an officer of the active list of the grade 
 from wliich he was retired," did not apply so 
 as to entitle the officer to active-duty pay dur- 
 ing his detail to active duty under the act of 
 March 2, 1895. (Comp. Dec, July 18, 1905, 
 53 S. and A. Memo., 572.) 
 
 The act of March 2, 1895, is a special statute, 
 while the later one of June 7, 1900, was general, 
 and under establi.«lied rules a subsequent act 
 treating a subject in general terms and not ex- 
 pressly contradicting the provisions of a prior 
 special statute is not to be considered as in- 
 tended to affect the more particular and specific 
 {)ro\dsions of the earlier act, unless it is abso- 
 utely necessary so to construe it in order to 
 give its words any meaning at all. As the act 
 of March 2, 1895, under which this officer was 
 detailed, provides that while so detailed he 
 shall be allowed no additional pay, he is not 
 entitled to active-duty pay and commutation 
 of quarters. (Comp. Dec, July 18, 1905, 53 
 S. and A. Memo., 572.) 
 
 As to interpretation of act of March 2, 1895, 
 see 5 Comp. Dec, 326, noted above, under 
 "Officer bound to obey order to act as pro- 
 fessor." 
 
 Commutation of quarters. — Under the 
 provision of the act of November 3, 1893, that 
 retired ofiicers of the Army detailed at educa- 
 tional institutions "shall receive the full pay 
 of their rank," but which does not include 
 allowances, such officers so detailed are not 
 entitled to commutation of quarters. (6 
 Comp. Dec, 506, Nov. 23, 1899; Spencer v. 
 U. S., 41 Ct. Cls., 430.) 
 
 The act of May 4, 1880, prohibits both pay 
 and allowances, while the act of November 3, 
 1893, merely removes the restriction as to pay, 
 but says nothing about allowances. This omis- 
 sion is significant and controlling in the con- 
 struction of the act of 1893. The general rule 
 in military matters is that where the word pay 
 is used alone, it does not include allowances. 
 (6 Comp. Dec, 506, Nov. 23, 1899.) 
 
 ^^^lere an officer of the Army is detailed by 
 peremptory order to act as professor in a college 
 under the act of July 28, 1866 (14 Stat., 336, 
 sec 26) [embodied in section 1225, Revised 
 Statutes], he is entitled to fuel and quarters or 
 commutation therefor, and his right to com- 
 mutation is not affected by the fact that his 
 detail was procured by the president of the 
 college with his cooperation. In such a case, 
 if there be no quarters at the place, it will be 
 a station without troops within the meaning of 
 the Army Regulations , and he need not make 
 reqmsition for quarters. (Long i'. U. S., 8 Ct. 
 Cls., 398, Dec. Term, 1872.) 
 
 An officer relieved from duty at a station 
 where he had quarters in kind, and ordered to 
 report in person for duty at a college during 
 vacation, is not entitled to commutation of 
 quarters prior to the date on which he reports 
 in person at the college. A report by letter 
 does not have the effect of placing him on duty 
 at the college in such a sense as to entitle him 
 to commutation of quarters at that station. (4 
 Comp. Dec, 254; Nov. 26, 1897.) 
 
 Medical attendance. — A retired officer of 
 the Army wlio is detailed as a professor at an 
 educational institution is not entitled to reim- 
 bursement for expenditures for medicines or 
 for medical attendance. (7 Comp. Dec, 89, 
 Aug. 14, 1900.) 
 
 It seems clear that medicines and medical 
 attendance can not be considered as part of the 
 pay of an officer, and they must therefore be 
 regarded as in the nature of an allowance, which 
 is not authorized to be given to a retired officer 
 detailed vuider the act of November 3, 1893. 
 (7 Comp. Dec, 89, Aug. 14, 1900.) 
 
 A retired colonel or Jievitenant colonel of the 
 Army, detailed under the act of November 3, 
 1893, to duty at an educational institution, 
 being entitled under the provisions of the act 
 of March 2 1905 (33 Stat., 831), to the full pay 
 and allowances of a major on the active list, is 
 entitled to such medical attendance and medi- 
 cines at the expense of the United States as 
 are authorized for a major on the active list; 
 but under the provisions of said act of March 2, 
 1905, a retired officer above the rank of colonel 
 is not entitled while so detailed to said allow- 
 ances. (11 Comp. Dec, 758, June 14, 1905.) 
 
 440 
 
The Army. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1229. 
 
 Mounted pay. — Cavalry and Field Artillery 
 oflicers on the active list of the Army below the 
 grade of major, who are detailed at educational 
 institutions, are required to be mounted during 
 such detail within the meaning of the act of 
 May 11, 1908 (35 Stat., 108), and if they provide 
 8uital)le mount or mounts at their own expense 
 they are entitled to the addition to their pay on 
 that account and to the allowances for mounts 
 as authorized by law. (16 Comp. Dec, 638, 
 Mar. 31, 1910.) 
 
 Detail of retired Marine officer. — The act 
 of March 2, 1895 (above quoted) does not 
 appear to have been affected by any subse- 
 quent legislation in so far as officers of the 
 Marine Corps are concerned. The Navy De- 
 partment is therefore of opinion that a retired 
 Marine officer is eligible under that act to 
 detail to service as a teacher or professor in any 
 school or college. (File 9736-22, Aug. 12, 
 1911.) 
 
 There appears to have been no change in the 
 act of March 2, 1895, so far as retired officers of 
 the Marine Corps are concerned. As specific 
 authority thus exists for the detail of the retired 
 Marine officer concerned, it is unnecessary to 
 pass upon the question whether said officer 
 may properly be considered an officer of the 
 Navy within the intent of the act of April 21, 
 1904 (above quoted). The act of March 2, 1895, 
 as construed by the Attorney General, does not 
 
 prohibit additional compensation from the 
 college, but from the United States. (File 
 11112-649, Sept. 8, 1916.) 
 
 Detail of petty officer in the Navy. — 
 There is no statutory authority for detailing a 
 petty officer on the active list to an educational 
 institution as instructor therein. However, the 
 act of April 21, 1904 (above quoted), includes 
 retired petty officers in the Navy by the phrase 
 " retired officers and noncommissioned officers of 
 the Army and Navy. " It follows that a retired 
 petty officer of the Navy may be detailed as 
 instructor in an educational institution, and 
 while so detailed such institution is, under the 
 terms of the act cited, reqiured to pay him 
 commutation of quarters. Further, the pro- 
 hibition in said act against payment of compen- 
 sation from the Government, other than retired 
 pay, to the ''noncommissioned" officers so 
 detailed, does not prohibit the acceptance by 
 such noncommissioned or petty officers of addi- 
 tional compensation from the institution to 
 which detailed. It should be noted that sec- 
 tion 1225, Revised Statutes, as amended, limits 
 the details in question to colleges or umversities 
 having capacity to educate at the same time 
 "not less than 150 male students," and pre- 
 vents details thereunder of retired noncommis- 
 sioned or petty officers unless they "are willing 
 to accept such position." (File 7657-361, Ma> 
 6, 1916.) 
 
 Sec. 1229. [Dismissal of officers in military or naval service.] The Presi- 
 dent is authorized to drop from the rolls of the Army for desertion any 
 officer who is absent from duty tliree months without leave ; and no officer so 
 dropped shall be eligible for re-appointment. And no officer in the military, 
 or naval service shall in time of peace be dismissed from service except 
 upon and in pursuance of the sentence of a court-martial to that effect, or in 
 commutation thereof. — (Art. of war, 99; art. of war, 106; 15 July, 1870, c. 294, 
 s. 17, V. 16, p. 319; 13 July, 1866, c. 176, s. 5, v. 14, p. 92.) 
 
 By act of April 2, 1918 (40 Stat., 501), the 
 President was authorized "to drop from 
 the rolls of the Navy or Marine Corps any 
 officer thereof who is absent from duty 
 without leave for a period of three months 
 or more, or who, having been found guilty 
 by the civil authorities of any offense, is 
 finally sentenced to confinement in a State 
 or Federal penitentiary : Provided, That no 
 officer so dropped shall be eligible for 
 reappointment." 
 
 Dismissals from the naval service are further 
 provided for by section 1624, Revised 
 Statutes, article 36. 
 
 Dismissals from the Army are further provided 
 for by section 1342, Revised Statutes, article 
 118, as amended by act of August 29, 1916 
 (39 Stat., 669). 
 
 Dropping an officer from the rolls of the Army 
 is authorized, where he has been absent 
 in confinement in a prison or penitentiary 
 for more than three months after final con- 
 viction by a civil court of competent 
 jurisdiction. (See act Jan. 19, 1911, 36 
 Stat., 894; and art. 118, sec. 1342, R. S., as 
 amended by act Aug. 29, 1916 (39 Stat., 
 669.) 
 
 Historical note. — As recommended to Con- 
 gress by the Commission to Revise the Laws 
 (1872), this section read as follows: "The Presi- 
 dent is authorized to drop from the rolls of the 
 Army for desertion any officer who is absent 
 from duty three months without leave; and no 
 officer so dropped shall [be eligible for re-ap- 
 pointment] ever be restored to the m ilitary service, 
 except by a re-appointment confirmed by theSenate. 
 But such dismissal shall be subject to the provi- 
 sions of the next section." The "next section" 
 contained provisions similar to those of article 
 37 of the Articles for the Government of the 
 Navy. (Sec. 1624, R. S.) In the notes to the 
 proposed section (Commrs. Draft, R. S., pp. 610, 
 611), it was stated: 
 
 "The act of 3 March, 1865, ch. 79, §12, vol. 
 13, p. 489, provides: 'That in case any officer 
 of the military or naval service who may be 
 hereafter dismissed by authority of the Presi- 
 dent shall make an application in writing for 
 a trial, setting forth under oath that he has 
 been wrongfully and unjustly dismissed, the 
 President shall, as soon as the necessities of 
 the public service may permit, convene a 
 court-martial to try such officer on the charges 
 on which he was dismissed. And if such court- 
 
 441 
 
Sec. 1342. 
 
 Pt.2. REVISED STATUTES. 
 
 The Army. 
 
 martial shall not award dismi'sal or death as 
 the punLshraent of such olticer, the order of 
 dismissal shall be void. And if the court- 
 martial aforesaid shall not be convene<l for the 
 trial of such oHicor within six months from the 
 presentation of his application for trial, the sen- 
 tence of dismissal sliall be void.' 
 
 "Section 17 of act 15 July, 1870, ch. 294, vol. 
 16, p. 319, provides for dropping an officer 
 'from the rolls,' but as it declares him there- 
 after ineligible 'for re-appointment,' it appears 
 that this process of dropping is absolute dis- 
 missal. Taken by itself the later provision 
 seems to imply that the action of the r resident 
 is conclusive; but it is assumed by this com- 
 mission that it can not be construed separately 
 from the existing general provision as to all 
 dismissals by the President. The last clause 
 of the section in the text is not inserted as a 
 new suggestion, therefore, but as the necessary 
 construction of the provision. 
 
 " It is to be observed that the act of 20 July, 
 1868, ch. 185, vol. 15, p. 125, provides that 
 officers cashiered by sentence of court-martial 
 shall not be restored to the military service 
 except by re-appointment confirmed by the 
 Senate, while the act of 15 July, 1870, cuts off 
 such re-appointment. The earlier act treats 
 the appointing and confirming power as a trust- 
 worthy authority to review all the circumstances 
 
 of a dismissal by court-martial, as well as to 
 consider the subsequent history of the con- 
 victed person. Cases might very well occur in 
 which a j^rolonged absence without leave could 
 be explained, but after a certain tune the 
 party would be without remedy. It seems 
 probable that no distinction in this respect 
 between the cases of dismissal by court-marlial 
 and cases of dismissal by the President was 
 intended. The words in italics are inserted for 
 the purpose of placing them on the same foot- 
 ing." 
 
 However, the recommendations of the com- 
 missioners were not accepted by Congress, 
 which enacted this provision in the Revised 
 Statutes as section 1229, in the language given 
 above. (As to the effect of pardon with refer- 
 ence to the reappointment of dismissed olficers 
 to the Navy, see note to section 1441, Revised 
 Statutes; as to distinction between various 
 methods by which the service of officers may be 
 terminated without theii* consent, see note to 
 section 1454, Revised Statutes, under "Mean- 
 ing of 'wholly retii-ed,'" and note to section 
 1456, Revised Statutes, under "Character of 
 discharge issued under act of 1882.") 
 
 See note to Constitution, Art. II, sec- 
 tion 2, clause 2, under " VIII. Power of Re- 
 moval." and section 1624, Revised Statutes, 
 article 36. 
 
 Sec. 1342. [Articles of War. Repealed.] 
 
 This section of the Revised Statutes, which 
 contained the Articles of War, and statutes 
 amendatory thereof, were repealed by act ap- 
 proved Jime 4, 1920 (41 Stat., 812), which same 
 act contained new articles of war (id., pp. 787- 
 812). However, article 2 of the original sec- 
 tion 1342, which prescribed the oath of alle- 
 giance to betaken by enlisted men, is continued 
 in force for enlisted men of the Navy by act of 
 March 3, 1899, sec. 25, noted under section 
 1418, Revised Statutes. 
 
 The Navy is governed by the articles 
 embodied in section 1624 of the Re\T.sed 
 Statutes, known as the "Articles for the 
 Government of the Navy." 
 
 The Marine Corps is govei'ned by "the 
 laws and regulations established for the govern- 
 ment of the Navy," except when detached for 
 service with the Army by order of the President; 
 and when so detached it is subject to the rules 
 and articles of war prescribed for the govern- 
 ment of the Army. (See sec. 1621, R. S.; and 
 art. 2 (c\ quoted' below.) 
 
 * 'Officers and enhsted men of the Medical 
 Department of the Navy, serving with a 
 body of marines detached for service with the 
 Army in accordance with the provisions of sec- 
 tion sixteen hundred and twenty-one of the 
 Revised Statutes, shall, while so serving, be 
 subject to the rules and articles of war pre- 
 scribed for the government of the Army in the 
 same manner as the officers and men of the 
 Marine Corps while so serving." (Act Aug. 29, 
 1916, 39 Stat., 573.) 
 
 Article 2 of the Articles of War (June 4, 
 1920) reads as follows: 
 
 "Art. 2. Persons subject to military 
 LAW. — The following persons are subject to 
 these articles and shall be understood as in- 
 
 cluded in the term 'any person subject to 
 military law,' or 'persons subject to military 
 law,' w^henever used in these articles: Pro- 
 vided, That nothing contained in this Act, ex- 
 cept as specifically provided in Article two, 
 subparagi'aph (r), shall be construed to apply 
 to any person under the United States naval 
 jurisdiction unless otherwise specifically pro- 
 vided by law. 
 
 <«* * -x- ^(.) Officers and soldiers of the 
 Marine Corps when detached for service with 
 the Armies of the United States by order of the 
 President: Provided, That an officer or soldier 
 of the Marine Corps when so detached may be 
 tried by military court-martial for an offense 
 committed against the laws for the government 
 of the naval service prior to his detachment, 
 and for an offense committed against these ar- 
 ticles he may be tried by a naval court-martial 
 after such detachment ceases * * *." 
 
 As to persons i n the Navy and Marine Corps 
 subject to the Articles of War, see notes above, 
 under this section, and see notes to section 1621, 
 Revised Statutes. 
 
 The only case in which it is "otherwise speci- 
 fically provided by law" that any person un- 
 der the United States naval jurisdiction shall 
 be subject to the Articles of War is that set 
 forth in the act of August 29, 1916 (39 Stat., 
 573, quoted above under this section), relating 
 to members of the Medical Department of the 
 Navy serving with a body of marines de- 
 tached for service with the Army. By sec- 
 tion 6 of this act of August 29, 1916, "All laws 
 and parts of laws in so far as they are inconsist- 
 ent with this act are hereby repealed." Ac- 
 cordingly held, that a fireman second class in 
 the Navy was not subject to the jurisdiction 
 of an Army court-martial for absence without 
 
 442 
 
The Army. 
 
 Pi. 2. REVISED STATUTES. 
 
 Sec. 1342. 
 
 leave from U. S. Army Base Hospital No. 6, 
 A. E. F., and that the sentence of an Army 
 summary comt-martial purporting to require 
 forfeiture of pay in his case was null and void 
 and should be disregarded and ignored by the 
 naval authorities. (File 26287-5459, Feb. 28, 
 1919.) 
 
 Men enlisted in the Army may on their own 
 application be transferred to the Navy or 
 ilarine Corps, but such transfer shall not re- 
 lease them ' ' from any penalty incurred for a 
 breach of military law." (Sec. 1421, R. S.) 
 
 Article 4 of the Articles of War (June 4, 
 1920) reads as follows: 
 
 "Art. 4. Who may serve on courts-mar- 
 tial. — All officers in the military service of 
 the United States, and officers of the Marine 
 Corps when detached for service with the Army 
 by order of the President, shall be competent 
 to serve on courts-martial for the trial of any 
 persons who may lawfully be brought before 
 such courts for trial. * * * " 
 
 It was originally provided by section 1342, 
 as article 78 of said section, that "officers of 
 the Marine Corps, detached for service with 
 the Army by order of the President, may be 
 associated with officers of the Regular Army on 
 courts-martial for the trial of offenders belonging 
 to the Regular Army, or to forces of the Marine 
 Corps so detached ; and in such cases the orders 
 of the senior officer of either corps, who may 
 be present and duly authorized, shall be 
 obeyed." 
 
 As to status of Marine Corps when detached 
 for service with the Army, see note to section 
 1621, Revised Statutes; see also note to article 
 120, below. 
 
 Articles 119 and 120 of the Articles of 
 War (June 4, 1920) read as follows: 
 
 "Art. 119. Rank and precedence among 
 Regulars, Militia, and Volunteers. — 
 That in time of war or public danger, when 
 two or more officers of the same grade are on 
 duty in the same field, department, or com- 
 mand, or of organizations thereof, the Presi- 
 dent may assign the command of the forces of 
 such field, department, or command, or of any 
 organization thereof, without regard to senior- 
 ity of rank in the same grade. 
 
 "Art. 120. Command when different 
 CORPS OR commands HAPPEN TO JOIN. — When 
 different corps or commands of the military 
 forces of the United States happen to join or 
 do duty tocjether. the officer highest in rank of 
 the line or the Regular Army, Marine Corps, 
 forces drafted or called into the service of the 
 United States, or Volunteers, there on duty, 
 shall, subject to the provisions of the last pre- 
 ceding article, command the whole and give 
 orders for what is needful in the service, unless 
 otherwise directed by the President." 
 
 It was originally provided by section 1342, 
 as article 122 of said section, that, "if, upon 
 marches, guards, or in quarters, different corps 
 of the Army happen to join or do duty to- 
 gether, the officer highest in rank of the line 
 of the Army, Marine Corps, or militia, by com- 
 mission, there on duty or in quarters, shall 
 command the whole, and give orders for what 
 is needful to the service, unless otherwise 
 specially directed by the President, according 
 to the nature of the case." 
 
 By amendment of March 8, 1910, (36 Stat., 
 234), article 122 of the original section 1342, 
 was changed to read as follows: "If, upon 
 marches, guards, or in quarters, different corps 
 of the Army happen to join or do duty together, 
 the officer highest in rank of the line of the 
 Army, Marine Corps, or militia, by commission, 
 there on duty or in quarters, shall command the 
 whole, and give orders for what is needful to the 
 service, unless otherwise specially directed by 
 the President, according to the nature of the 
 case." 
 
 Scope of article. — "The one hundred and 
 twenty-second [now 120th] article of war above 
 quoted applies only when 'different corps of the 
 Army ' happen to join or do duty together. It 
 has no pertinency when a portion of the naval 
 force of the United States and a part of the 
 Army happen to join or do duty together, or 
 when any portion of the Marine Corps happens 
 to serve in conjunction with the Army, unless 
 such portion of the Marine Corps can be deemed 
 at the time a part of the Army or at least organ- 
 ically attached to it." (28 Op. Atty. Gen., 
 15.) ■ 
 
 Marine Corps detached for service with 
 Army. — When the Marine Corps is detached 
 for service with the Army, by order of the Presi- 
 dent, in accordance with section 1621, Revised 
 Statutes, "then of course it becomes a 'corps of 
 the Army ' within the scope of the one hundred 
 and twenty-second [now 120th] article of war. 
 When any part of the Marine Corps is present 
 with the Army and engaged in a common enter- 
 prise with it, without an order of the President 
 detaching it for service with the Army, the case 
 is one of cooperation, but not of incorporation; 
 and then no officer of the Marine Corps can ex- 
 ercise command over the Army any more than 
 a naval officer can when some part of the 
 Navy is cooperating with the Army; and 
 conversely it is true that no officer of the 
 Army can exercise command over the Ma- 
 rine Corps when the Army and Marine Corps 
 are merely cooperating, without the Marine 
 Corps having been attached to the Army by 
 order of the President, any more than an Army 
 officer can exercise command over the Navy 
 under like circumstances. Indeed, this case 
 of some part of the Marine Corps and some part 
 of the Army being together engaged in a com- 
 mon enterprise is but a special instance of the 
 many cases in which the Army and Navy coop- 
 erate to a common end. It becomes different 
 only when some portion of the Marine Corps has 
 been attached to the Army by the President's 
 order." (28 Op. Atty. Gen., 15.) 
 
 "The one hundred and twenty-second [now 
 120th] article of war does not operate to give 
 to officers of the Marine Corjjs any authority 
 to exercise command in the Army unless they 
 have been detached for service with the Army 
 by order of the President and are still serving 
 with the Army under that order." (28 Op. 
 Atty. Gen., 15.) 
 
 Command of joint forces of Army and 
 Navy. — "At the present time there is no law 
 which purports to provide who shall command 
 joint forces of the Army and Navy doing duty 
 together, this matter having heretofore been 
 left by Congress where it properly belongs — to 
 the President, who, as Commander in Chief of 
 
 54641°— 22- 
 
 -29 
 
 443 
 
Sec. 1342. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Army. 
 
 the Army and Navy, is the only authority vested 
 by the Constitution with the power to determine 
 what officers shall take command of such forces 
 either by virtue of rank or by special designa- 
 tion. As an example of this authority of the 
 President, the following article (1050) of the 
 Navy Regulations, all of which are issued with 
 the written apj>roval of the President, may be 
 cited : 
 
 "An officer of the Navy can not assume com- 
 mand of Army forces on shore, nor can an officer 
 of the Army assume command over any ship of 
 the Navy, or over its officers or men afloat, ex- 
 cept in either case by special authority for a 
 particular service; birt when officers of the Navy 
 are on duty on shore with the Army, they shall 
 be entitled to the precedence of the rank in the 
 Army to which their own corresponds, except 
 
 command as aforesaid, and this precedence will 
 regulate their right to quarters." 
 
 "Similarly the regulations governing the re- 
 lationship of Army and naval officers while 
 engaged in convoy operations or in the trans- 
 portation of Army forces aboard naval vessels 
 which have recently been amplified, indicate 
 again the authority of the President in the mat- 
 ter of determining questions of command. 
 Therefore, it appears clear to this department 
 that the President may issue immediately 
 whatever regulations he may deem wise on the 
 subject of command of joint forces of the Army, 
 Navy, and Marine Corps, and no enactment of 
 Congress can increase the power which he 
 already possesses over this subject matter." 
 (Secretary of the Navy to the Secretary of War, 
 Mar. 4, 1918, file 3980-1402:3.) 
 
 444 
 
TITLE XV. 
 THE NAVY. 
 
 Chap. Sec. 
 
 1. Organization 1362-1427 
 
 2. General provisions relating to officers 1428-1442 
 
 3. Retired officers of the Navy 1443-1465 
 
 4. Rank and precedence, promotion and advancement 1466-1510 
 
 5. The Naval Academy 1511-1528 
 
 6. Vessels and navy yards 1529-1546 
 
 7. General provisions relating to the Navy 1547-1555 
 
 8. Pay, emoluments, and allowances 1556-1595 
 
 9. The Marine Corps 1596-1623 
 
 10. Articles for the Government of the Navy 1624 
 
 445 
 
CHAPTER ONE. 
 ORGANIZATION. 
 
 organization of. 
 appointmenta in, 
 
 how 
 
 Seo. 
 
 1362. Grades of line officers. 
 
 1363. Number of line officers. 
 
 1364. WTien number of line officers may be ex- 
 
 ceeded. 
 
 1365. Selection of rear admirals during war. 
 
 1366. Promotion to rear admiral during peace. 
 
 1367. Secretaries to Admiral and \'ice Ad- 
 
 miral. 
 
 1368. Medical Corps; 
 
 1369. Medical Corps; 
 
 made. 
 
 1370. Medical Corps; qualifications for assist- 
 
 ant surgeons. 
 
 1371. Medical Corps; promotions in. 
 
 1372. Medical Corps; rank of assistant surgeons 
 
 in case of delayed examination. 
 
 1373. Medical Corps; surgeon of the fleet. 
 
 1374. Medical Corps; duties of surgeon of the 
 
 fleet. 
 
 1375. Medical Corps; assistant to Bureau of 
 
 Medicine and Surgery. 
 
 1376. Supply Corps; organization of. 
 
 1377. Supply Corps; no promotion or appoint- 
 
 ment in certain grades until reduced. 
 
 1378. Supply Corps; appointments in, how 
 
 made. 
 
 1379. Supply Corps; qualifications for assistant 
 
 paymasters. 
 
 1380. Supply Corps; promotions in. 
 
 1381. Supply Corps; acting appointments on 
 
 ships at sea. 
 
 1382. Supply Corps; paymaster of the fleet. 
 
 1383. Supply Corps; bonds of officers. 
 
 1384. Supply Corps; new bonds required. 
 
 1385. Supply Corps; bonds not affected by new 
 
 commissions. 
 
 1386. Supply Corps; when clerks allowed offi- 
 
 cers. 
 
 1387. Supply Corps; when clerks not allowed 
 
 officers. 
 
 1388. Supply Corps; clerks to passed assistant 
 
 and assistant paymasters. 
 
 1389. Supply Corps; loans to officers prohib- 
 
 ited. 
 
 1390. Engineer Corps; organization of. 
 
 1391. Engineer Corps; appointments in, how 
 
 made. 
 
 1392. Engineer Corps; qualifications for ap- 
 
 pointment and promotion. 
 
 1393. Engineer of the fleet. 
 
 Sec. 
 
 1394. Engineer Corps; appointments from cadet 
 
 engineers. 
 
 1395. Chaplains; number and appointment of . 
 
 1396. Chaplains; qualifications of . 
 
 1397. Chaplains; form of worship. 
 
 1398. Chaplains; annual report by. 
 
 1399. Professors of mathematic." ; number of . 
 
 1400. Professors of mathematics; appointment 
 
 of. 
 
 1401. Professors of mathematics; duties of. 
 
 1402. Construction Corps; number and appoint- 
 
 ment of naval constructors. 
 
 1403. Construction Corps; appointment of as- 
 
 sistant naval constructors. 
 
 1404. Construction Corps; duties of . 
 
 1405. Warrant officers; number and appoint- 
 
 ment of. 
 
 1406. Warrant officers; title. 
 
 1407. Warrant officers; seamen promoted for 
 
 heroism; medals of honor. 
 
 1408. Mates; rating of enlisted men as. 
 
 1409. Mates and warrant officers; not dis- 
 
 charged from enlistment. 
 
 1410. Acting officers; petty officers; secretaries 
 
 and clerks. 
 
 1411. Acting assistant surgeons. 
 
 1412. Volunteer officers; transfer to Regular 
 
 Navy, etc. 
 
 1413. Civil Engineer Corps and Storekeepers. 
 
 1414. Civilian storekeepers on foreign stations. 
 
 1415. Civilian storekeepers to give bond. 
 
 1416 . Civil offices at yards may be discontinued . 
 
 1417. Enlisted men, number of; advancement 
 
 to warrant officers. 
 
 1418. Enlistment; age and term of. 
 
 1419. Enlistment, minors, consent of parents 
 
 and guardians. 
 
 1420. Enlistment; prohibited classes. 
 
 1421. Enlisted men; transfer from military to 
 
 naval service. 
 
 1422. Enlistment; detention after expiration 
 
 of; transportation home. 
 
 1423. Enlisted men; subject to regulations 
 
 while sent home or detained. 
 
 1424. Enlisted men; limit of detention. 
 
 1425. Enlistment; shipping articles to contain 
 
 provisions of preceding sections. 
 
 1426. Enlisted men; honorable discharge of. 
 
 1427. Enlisted men; form of honorable dis- 
 
 charge. 
 
 446 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1362. 
 
 Sec. 1362. [Grades of line oflBlcers. Superseded.] 
 
 This section provided as follows: 
 
 "Sec. 1362. The active list of the line officers 
 of the Navy of the United States shall be 
 divided into eleven grades, as follows, namely: 
 
 "First. Admiral. 
 
 "Second. Vice Admiral. 
 
 "Third. Rear admirals. 
 
 "Fourth. Commodores. 
 
 "Fifth. Captains. 
 
 "Sixth. Commanders. 
 
 "Seventh. Lieutenant commanders 
 
 "Eighth. Lieutenants. 
 
 "Ninth. Masters. 
 
 "Teath. Ensigns. 
 
 "Eleventh. Midshipmen. 
 
 ^^ Provided, That vacancies occurring in the 
 grades of Admiral and Vice Admiral shall not 
 be filled by promotion, or in any other manner; 
 and that when the offices of said grades shall 
 become vacant, the grade itself shall cease to 
 exist.';— (16 July, 1862, c. 183, s. 1, v. 12, p. 583. 
 21 Dec, 1864, c. 6, e. 1, v. 13, p. 420. 25 July, 
 1866, c. 231, 8. I, V. 14, p. 222. 2 Mar., 1867, c. 
 174, s. 1, V. 14, p. 516. 24 Jan., 1873, c. 62, v. 
 17, p. 418). 
 
 It was superseded by the Navv personnel 
 actj March 3, 1899, section 7 (30 Stat., 1005), 
 which provided that "the active list of the line 
 of the Navy" shall be composed of 
 Rear admirals; 
 Captains; 
 Commanders; 
 Lieutenant commanders ; 
 Lieutenants ; 
 
 Lieutenants (junior grade); and 
 Ensigns. 
 
 Rear admirals were divided into two 
 grades for pay purposes by section 7 of the 
 personnel act above cited, rear admirals of the 
 "nine lower numbers " being given the pay and 
 allowances of brigadier generals in the Army, 
 while rear admirals of the upper nine numbers 
 were not specifically provided for, but, under 
 the general provisions contained in section 13 
 of the same act they received the same pay and 
 allowances as officers of corresponding rank in 
 the Army, namely, major general, that being 
 the rank corresponding with the rank of rear 
 admiral according to section 1466, Revined 
 Statutes. This division of rear admirals into 
 two grades for pay purposes was continued in 
 effect by the act of May 13, 1908 (35 Stat. 127), 
 which provided different rates of pay for "rear 
 admiral, first nine," and "rear admiral, second 
 nine." (See Terry v. U. S., 39 Ct. Cls., 353.) 
 
 By act of August 29, 1916 (39 Stat., 576, 577), 
 provision was made for increasing the number 
 of officers allowed in the various grades and 
 ranks of the Navy, and it was further enacted 
 that "hereafter pay and allowances of officers 
 in the upper half of the grade or rank of rear 
 admiral, including the staff corps and including 
 staff officers heretofore permanently com- 
 missioned with the r.ank of rear admiral, shall 
 be that now allowed by law for the first nine 
 rear admirals, and the pay and allowances of 
 officers in the lower half of the grade or rank of 
 rear admiral, including the staff corps, shall be 
 that now allowed by law for the second nine 
 rear admirals. ' ' 
 
 The grade of commodore was omitted 
 from the active list by the Navy personnel act, 
 section 7, above cited. That act, however, 
 while thus abolishing the grade of commodore 
 on the active list, did not thereby affect the 
 rank of officers then on the retired list having 
 the rank of commodore, and it contained several 
 provisions for the future retirement of officers 
 with that rank under certain prescribed con- 
 ditions, viz, by section 7 of said act (30 Stat., 
 1005) it was provided "that nothing contained 
 in this section shall be construed to prevent the 
 retirement of officers who now have the rank or 
 relative rank of commodore with the rank and 
 pay of thatgrade; " by section 8 (30 Stat., 1006), 
 it was provided that officers retired on their own 
 application for the purpose of creating a pre- 
 scribed minimum of annual vacancies should 
 be placed on the retired list with the rank and 
 pay of the "next higher grade, as now existing, 
 including the grade of commodore;" by sec- 
 tion 9 (30 Stat., 1006), it was provided that 
 officers retired by selection for the purpose of 
 creating a prescribed minimum of annual 
 vacancies should be placed on the retired list 
 with the rank and pay of the "next higher 
 grade, including the grade of commodore, which 
 is retained on the retired list for this purpose. " 
 None of these provisions for retirement with the 
 rank of commodore is now in force. By section 
 11 of the personnel act (30 Stat.j 1006), it w&s 
 provided that officers having Civil-War service 
 should, when retired, be retired with the rank 
 "of the next higher grade; " under that section, 
 officers with the rank of captain on the active 
 list were retired with the rank of rear admiral 
 and not commodore. Under section 1481, Re- 
 vised Statutes, certain staff oflicers are retired 
 with the rank of commodore, this being the 
 only case in which any officers are now 
 placed on the retired list with that rank. 
 (In this connection, see notes to sees. 421 
 and 1473, R. S., concerning the retirement of 
 chiefs of bureaus in the Navy Department.) 
 The naval appropriation act of May 13, 1908 
 (35 Stat., 127), which established new rates 
 of pay for the Navy, provided that "hereafter 
 all commissioned officers of the active list of 
 the Navy shall receive the same pay and allow- 
 ances according to rank and length of service, 
 and the annual pay of each grade shall be as 
 follows: * * * rear admiral, second nine, 
 or commodore, six thousand dollars." How- 
 ever, there were no commodores on the active 
 list at the time of this enactment and none 
 have since been appointed. 
 
 The grade of Admiral ceased to exist, in 
 accordance with section 1362, Revised Stat- 
 utes, February 13, 1891, in consequence of the 
 death of Admiral David D. Porter. The grade 
 of Vice Admiral had previously ceased to exist, 
 Vice Admiral Stephen C. Rowan having retired 
 February 26, 1889, and died March 31, 189 0. 
 However, by act March 2, 1899 (30 Stat., 905), 
 the President was authorized to appoint an 
 "Admiral of the Nav>'," with the condition 
 that "whenever such office shall be vacated 
 by death or otherwise the office shall cease to 
 exist." The following day, March 3, 1899, 
 the Navy personnel act became law, providing, 
 
 447 
 
Sec. 1362. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 as above set forth, what officers should compose 
 "the active list of the line of the Navy," and 
 making no mention of "Admiral of the Navy." 
 In anticipation of a possible decision that 
 this omission of the grade of "Admiral of 
 the Navy" from the personnel act impliedly 
 repealed the prior enactment of March 2, 1899, 
 authorizing tne appointment of such officer, 
 the said act of March 2, 1899, authorizing the 
 appointment of an "Admiral of the Navy," 
 was reenacted in the same words as a clause 
 in the naval appropriation act of March 3, 1899 
 (30 Stat. 1045). The grade of "Admiral of the 
 Na\'y" accordingly continued as part of the 
 active list of the Navy until such office was 
 "vacated" by the death of Admiral George 
 Dewey on January 16, 1917, when such grade in 
 accordance with law ceased to exist. 
 
 The naval appropriation act of March 3, 1915 
 (38 Stat., 941, 942), provided that the com- 
 manders in chief of the Atlantic, Pacific, and 
 Asiatic Fleets shall have the rank of admiral, 
 and the officers second in command of said 
 fleets shall have the rank of vice admiral, from 
 the date each such officer shall assume duty as 
 commander in chief or second in command, 
 respectively, until his relinquishment of such 
 duty ; and that ' ' the grades of admiral and vice 
 admiral in the Navy are hereby reestablished 
 and authorized for the purposes of this section. " 
 It was further provided that when an officer is 
 detached from duty as such commander in chief 
 or second in command, "he shall return to his 
 regular rank in the list of rear admirals ' ' from 
 which appointed . This act has been construed 
 as not investing the officers concerned with the 
 offices of admiral and vice admiral, but merely 
 as conferring upon them temporarily the rank 
 and pay of those offices, while they continued 
 at the same time to be officers of the grade of 
 rear admiral. (21 Comp. Dec, 840.) See note 
 below, "'Title,' 'grade,' 'rank,' and 'office' 
 defined and distinguished." 
 
 By act of May 22, 1917, section 18 (40 Stat., 89) 
 the pro\'ision in the act of March 3, 1915, 
 quoted in the preceding paragraph, was ex- 
 pressly repealed, and in lieu thereof it was 
 proAdded that the President be authorized to 
 designate six officers of the Navy for the com- 
 mand of fleets or subdivisions thereof, and that, 
 after such designation, from the date of assum- 
 ing such command until relinquishing thereof, 
 not more than three of such officers shall each 
 have the rank and pay of an admiral and the 
 others shall each have the rank and pay of a 
 vice admiral; and that "the grades of admiral 
 and \ice admiral are hereby authorized and 
 continued for the purpose of this Act;" pro- 
 \ided, that in time of war the selections under 
 the provisions of said act shall be made from the 
 grades of rear admiral or captain on the active 
 list of the Navy, and that in time of peace such 
 selections shall be made from among the rear 
 admirals on the active list of the Navj'; pro- 
 vided further, that nothing contained herein 
 shall create any vacancy in any grade in the 
 Navy or increase the total number of officers 
 authorized by law; provided further, that when 
 any officer •nith the rank of admiral or vice ad- 
 miral is detached from the command of a fleet or 
 subdivision thereof he shall return to his regular 
 rank in the list of officers of the Navy and shall 
 
 thereafter receive only the pay and allowances 
 of such rank ; and provided further that nothing 
 in said act shall be held or construed as amend- 
 ing or repealing sections 1434, 1463, and 1464 of 
 the Re\Tsed Statutes. 
 
 By act of August 29, 1916 (39 Stat., 558), it 
 was provided that the Chief of Naval Opera- 
 tions, while so serving, shall have the rank 
 and title of admiral, to take rank next after The 
 Admiral of the Navy, and if retired while so 
 serving he shall be retired with the lineal rank 
 and retired pay to which he would be entitled 
 had he not been serving as Chief of Naval 
 Operations. - 
 
 The grades of master and midshipman 
 as part of the active list of the line, under sec- 
 tion 1362, Revised Statutes, were abolished, 
 and the grades of lieutenant (junior grade) and 
 junior ensign, created by actof March3, 1883 (22 
 Stat., 472), which had the effect of changing the 
 title "master" to "lieutenant (junior grade)" 
 and the title "midshipman" to ''ensign" (see 
 Schuetze v. U.S., 24 Ct. Cls., 299; Weller v. 
 U. S., 41 Ct. Cls., 324, 337), and the grade of 
 junior ensign thus created was abolished by act 
 of June 26, 1884, section 2 (23 Stat., 60). The 
 title of ''midshipman" was applied to students 
 at the Naval Academy by actof July 1, 1902(32 
 Stat., 686). "Midshipmen are, by law, officers 
 in a qualified sense. They are classed as being 
 of the line. " (Art. R-1002, par. 3, Navy Regu- 
 lations, 1913. See Weller v. U. S., 41 Ct. Cls., 
 324; Schuetze v. U. S., 24 Ct. Cls., 299.) 
 
 Who are line oflB.cers; status of warrant 
 and commissioned warrant officers. — In 
 1862 Congress passed an act purporting to estab- 
 lish the grade of line officers in the Navy. Prior 
 to that time there is little or nothing in the stat- 
 utes about the line of the Navy. In that stat- 
 ute, without explaining which of the v^arious 
 meanings of the word "line" Congress had in 
 mind, it left no doubt as to the officers it 
 intended to embrace among the line officers of 
 the Navy, for it mentioned them all. This 
 specification was practically repeated in the 
 acts of July, 1866, in the Revised Statutes of 
 1873, in an act of August 5, 1882, and in the 
 naval personnel act of March 3, 1899. (22 Op. 
 Atty. Gen., 620.) 
 
 It is obvious that all officers specified by 
 Congress as line officers were thereby distin- 
 guished from all officers not specified, whether 
 those officers were staff officers, properly so 
 called, or officers belonging to special corps, 
 such as the Pay Corps, the Medical Corps, 
 and the like, warrant officers, or petty officers. 
 (22 Op. Atty. Gen., 620.) 
 
 "From the earliest times the officers of the 
 Navy have been divided into commission offi- 
 cers, warrant officers, and petty officers, the 
 difference being rather a difference in the mode 
 of the appointment or designation than one 
 growing out of the function to be performed. 
 The commission officers were those holding 
 commissions from the President like the com- 
 missions of other officers of the United States; 
 warrant officers had no such commissions but 
 only warrants given by the President or Navy 
 Department; and petty officers were rated or 
 designated by the commanders of their respec- 
 tive vessels from among the enlisted men on 
 board." (22 Op. Atty. Gen., 620.) 
 
 448 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1362. 
 
 It seems to be ciear that, within the meaning 
 of the Revised Statutes and subsequent laws, 
 line officers of the Navy are the officers specified 
 as such by Congress, and that no others are such 
 officers of the line. It follows that no warrant 
 officers are, within 'the meaning of those laws, 
 officers of the line. (22 Op. Atty. Gen., 620.) 
 
 However, Congress in speaking of "the line" 
 evidently does not mean "the line of com- 
 mand," and there is nothing in its classification 
 to indicate an intent to make unlawful the exer- 
 cise of command by boatswains and gunners. 
 "It would seem that boatswains and gunners 
 have been in the line of command as a matter of 
 fact for a century. Both of them are officers 
 whose functions and business are ancient and 
 are involved in the customs of the British and 
 American navies. As a navy is an organic 
 growth, its antecedents and customs should not 
 be ignored * * *. From all that has been 
 said I think we may conclude that treating those 
 officers as in the line of command was not with- 
 out lawful authority before 1862 * * *. 
 These things being so, I think those officers are 
 not improperly; classed in the Regulations as 
 officers of the line, and that they can properly 
 be given the star upon their uniforms." (22 
 Op. Atty. Gen., 620.) 
 
 "The machinist has existed in the Navy for 
 Bome time, of course, and yet for no great 
 period. He has been a rated or petty officer 
 (Art. 794, Regulations of 1893). The personnel 
 act of this year [1899] creating the office of war- 
 rant machinist [now "machinist"] shows 
 plainly that Congress did not intend to place 
 the machinists in its own list of line officers, 
 for it repeated that Ust in section 7, and 
 omitted them. They had previously been con- 
 nected with the Engineer CJorps or its business, 
 a staff or special corps, no part of which had 
 been exercising miUtary command. The per- 
 sonnel bill has not been regarded as ipso facto 
 transferring all the officers of that corps to the 
 line of command. (See General Orders 524.) 
 As these machinists do not appear to have pre- 
 viously exercised miUtary command, I think 
 that, before they are to be held entitled to 
 command, and others, including senior officers, 
 held to be under obUgations to obey them, 
 something positive to that effect should be pro- 
 duced from the personnel acts or from the gen- 
 eral nature of their duties or elsewhere. The 
 presumption is the other way, and I find noth- 
 ing to overcome it." (22 Op. Atty. Gen., C20.) 
 
 Since the above opinion was rendered by the 
 Attorney General, it has been held by the Navy 
 Department (file 17789-15, Dec. 13, 21, 1909) 
 that machinists should be classified as line 
 officers, the same as boatswains and gunners, 
 and accordingly it was provided by Navy 
 Regulations that chief boatswains, cliief gun- 
 ners, and chief machinists (who are commis- 
 sioned officers, designated by the Navy Regu- 
 lations as "commissioned warrant officers," 
 Art. R-1013, par. 2, Navy Regs., 1913), and 
 boatswains, gunners, and machinists (who are 
 warrant officers), are line officers of the Navy 
 (Art. R-1013, par. 3, Navy Regs., 1913); but 
 that "so far as succession to command or 
 succession to duties aboard ship outside the 
 engineer department are concerned chief ma- 
 chinists and machinists are restricted to the 
 
 performance of engineering duty only." (Art. 
 R-1013, par. 3, Navy Regs., 1913.) 
 
 As to the appointment of warrant officers and 
 commissioned warrant officers, see note to sec- 
 tion 1405, Revised Statutes. 
 
 "Title," "grade," "rank," and "office" 
 defined and distinguished. — Title is the 
 name by which an office or the holder of an 
 office is designated and distinguished in the 
 statute and by which the officer has a right to 
 be known and addressed; grade expresses one 
 of the divisions or degrees in the particular 
 department or branch of the service according 
 to which offices therein are classified or graded ; 
 and rank, which originally signified that which 
 determines the right to command and is still 
 an inseparable incident to such right, expresses 
 the position of officers of different grades or of 
 the same grade in point of authority, prece- 
 dence, or the Like, of one over another. (16 Op. 
 Atty. Gen., 414.) 
 
 The word "rank" is sometimes used, how- 
 ever, as synonymous with "grade"; thus, when 
 it is said that a particular officer shall have the 
 rank of captain, commander, and so forth, there 
 being no qualifying word, it is used in the sense 
 of grade, and this whether the rank is perma- 
 nently or temporarily given. (16 Op. Atty. 
 Gen., 414; see also Wood v. U. S., 15 Ct. Cls., 
 151, 160.) 
 
 In some cases the same word or appellation 
 may express, aUke, title, grade, and rank with 
 clearness. Thus, in section 1362, which pro- 
 vides that "the active Ust of the line officers of 
 the Navy of the United States shall be divided 
 into eleven grades, as follows, namely," etc., 
 each of the words " Admiral," and " Vice 
 Admiral," expresses the title of the officer hold- 
 ing either of those respective positions, his 
 grade, and his rank; in other words, the name 
 hj which he is entitled to be addressed, the 
 division or degree in the line of the Navy to 
 which he belongs, and the rank which he holds 
 in it. If, however, there were more than one 
 officer of the same title and grade, it would not 
 necessarily express rank. Thus, "rear ad- 
 miral," which is a grade composed of more 
 officers than one, each having a right to the 
 same title, does not express the rank which they 
 hold inter sese, although it expresses the rank 
 so far as those above and below that grade are 
 concerned. (16 Op. Atty. Gen., 414.) 
 
 "Grade is a step or degree in either office or 
 rank, and has reference to the divisions of the 
 one or the other or both, according to the con- 
 nection in which the word is employed." 
 (Wood-D. U.S.,15Ct.Cls., 151, 160; aftu-med 107 
 U. S., 414; seealso Moseri;. U. S., 42 Ct. Cls., 86; 
 Thornley v. U. S., 18 Ct. Cls., 111.) 
 
 The distinction between rank and office is 
 more clearly apparent with reference to staff 
 officers than to officers of the line, because in 
 the latter case the words used to designate the 
 rank and the office are usually the same, while 
 in the former case they are always different. 
 (Wood V. U. S., 15 Ct. Cls., 151, 159.) 
 
 While "grade" has the same meaning as 
 "office," "rank" is merely a classification to 
 fix the position of officers Avith respect to other 
 officers in the same or in other grades, as to 
 command, precedence, privilege, or pay. 
 "Rank" may be conferred by mere notinca- 
 
 449 
 
Sec. 1363. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 tion, and without cither examination, con- 
 firmation, or commission (citing Gen. Wood's 
 Case, 15 Ct. Cls., 151, 159; Wood v. U. S., 107 
 U. S., 414; 20 Op. Atty. Gen., 358, 362, 363; 19 
 Op. Atty. Gen., 169; 27 Op. Atty. Gen., 376). 
 So also, while "grade " is only partially, "rank " 
 is wholly, witliin the control of Congress (citing 
 Wood V. U. S., 107 U. S., 414, 417; Sen. Rept. 
 No. 2163, 3Sth Cong., 2d sess.). But whenever 
 Congress creates a new gi*ade or rank, without 
 making any provision for filling it, the selec- 
 tion, in the case of a vacancy in grade, is made 
 by the President, by and with the ad\dce and 
 consent of the Senate (citing 29 Op. Atty. Gen., 
 117); wliile in the case of a vacancy in rank it 
 is made by the President as Commander in 
 Chief of the Navy, without any action on the 
 part of the Senate (citing Gen. Ainsworth's 
 Case, 22 Op. Atty. Gen., 480). (Op. Atty. Gen., 
 Dec. 27, 1916, file 28687-4:8.) 
 
 Rank is often used to express something 
 different from office. It then becomes a desig- 
 nation or title of honor, dignity, or distinction 
 conferred upon an oflicer in order to fix his rela- 
 tive position with reference to other officers in 
 matters of privilege, precedence, and some- 
 times of command, or by which to determine 
 his pay and emolimients. (Wood v. U. S., 15 
 Ct. Cls., 151, 159.) 
 
 In some cases, officers of the line have a rank 
 assigned to them different from that of the title 
 of their office. Congress has frequently exer- 
 cised the power of changing the mere rank of 
 officers, without invoking the constitutional 
 power of the Executive to appoint the incum- 
 bents to new offices. Accordingly, held that 
 when a line officer is retired upon a higher rank 
 pursuant to act of Congress, as a reward for serv- 
 ices rendered in battle, his office remains the 
 
 same as it was on the active list, but he acquires 
 a higher rank without in any sense being ap- 
 
 gointed to a new office. (Wood v. U. S., 15 Ct. 
 Is., 151, 159, 161, 162; affirmed 107 U. S., 414.) 
 
 The titles or names of offices to which line 
 officers are appointed are employed also as the 
 designation of rank, and when no other rank is 
 conferred upon them the titles of their respec- 
 tive offices also express their rank; but it does 
 not follow that rank and office are therefore 
 always identical, and in point of fact they are 
 not so. (Wood V. U. S., 15 Ct. Cls., 151, 158, 
 159.) 
 
 The office remaining the same, the officer may 
 have a different rank conferred on liim, as a 
 title of distinction, to fix his relative position 
 with reference to others. (Wood v. U. S., 107 
 U. S., 414.) 
 
 The word "grade" in Revised Statutes, sec- 
 tion 1588, which fixes the pay of retired officers 
 of the Navy at 75 per cent of the pay of the 
 grade or rank held by them at the time of re- 
 tii-ement, refers to the di\dsions of officers into 
 five-year periods of service. (Rutherford v. 
 U. S., 18 Ct. Cls., 339.) 
 
 Where the law provided that certain officers 
 should have "the highest rates of pay attached 
 to their respective grades," it was held that the 
 officers in question were thereby entitled to the 
 highest pay of their rank, the court saying: "A 
 grade is a step in a series, a rank; * * * a 
 grade is a rank, and in oiu- opinion Congress in- 
 tended to give plaintiff the liighest pay of his 
 rank." (Schuetze v. U. S., 24 Ct. Cls., 299.) 
 
 For other cases, see notes to sections 421, 422, 
 423, and 1457, Revised Statutes. 
 
 Relative rank bet-ween Army and Navy 
 officers. — See section 1466, Revised Statutes. 
 
 Sec. 1363. [Number of line officers. Superseded.] 
 
 This section provided as foUo-ws: 
 
 "Sec. 1363. There shall be allowed on the 
 active list of the line officers of the Navy one 
 Admiral, one Vice-Admiral, ten rear-admirals, 
 twenty-five commodores, fifty captains, ninety 
 commanders, eighty lieutenant-commanders, 
 two hundred and eighty lieutenants, one hun- 
 dred masters, and one hundred ensigns; and 
 no promotion to the grade of lieutenant-com- 
 mander shall be made until the number of such 
 grade is reduced below eighty." — (25 July, 1866, 
 c. 231, s. 1, v. 14, p. 222. 15 July, 1870, c. 295, 
 8S. 9, 10, v. 16, p. 333.) 
 
 It -was amended by act of August 5, 1882 
 (22 Stat., 286), which reduced the number of 
 officers in the various gi-ades of the line to the 
 following: Rear admirals, 6; commodores, 10; 
 captains, 45; commanders, 85; lieutenant com- 
 manders, 74; lieutenants, 250; masters, 75; and 
 ensigns, 75. 
 
 It was superseded by the Navy personnel 
 act of March 3, 1899, section 1 of which act (30 
 Stat., 1004) transferred the officers of the Engi- 
 neer Corps of the Navj' to the line, and section 7 
 of which act (.30 Stat., 1005) provided that "the 
 active list of the line of the Navy, as consti- 
 tuted by section one of this act, shall be com- 
 posed of" the follo^\^ng: 18 rear admirals, 70 
 captains, 112 commanders, 170 lieutenant com- 
 manders, 300 lieutenants, and not more than a 
 
 total of 350 lieutenants (junior grade) and 
 ensigns. 
 
 The number of line officers was in- 
 creased by act of March 3, 1903 (32 Stat., 1197), 
 which authorized 30 additional lieutenant com- 
 manders, in all 200; 50 additional lieutenants, 
 in all 350; and such total numbers of lieuten- 
 ants (junior grade) and ensigns as may qualify 
 for said grades under existing law. 
 
 The nxunber of line officers was again in- 
 creased by act of August 29, 1916 (39 Stat., 576, 
 577), which provided that "hereafter the total 
 number of commissioned officers of the active list 
 of the Une of the Navy, exclusive of commis- 
 sioned warrant officers, shall be four per centum 
 of the total authorized enlisted strength of the 
 active list, exclusive of the Hospital Corps, 
 prisoners undergoing sentence of discharge, 
 enlisted men detailed for duty with the Naval 
 Militia, and the Fljdng Corps: Provided, That 
 the total number of commissioned line officers 
 on the active Ust at any one time, exclusive of 
 commissioned warrant officers, shall be dis- 
 tributed in the proportion of one of the grade of 
 rear admiral to four in the gi'ade of captain, to 
 seven in the grade of commander, to fourteen in 
 the grade of lieutenant commander, to thirty- 
 two and one-half in the grade of lieutenant, to 
 forty-one and one-half in the grades of Ueuten- 
 ant (junior grade) and ensign, inclusive: 
 
 450 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1363. 
 
 Provided further, That lieutenants (junior 
 grade) shall have had not less than three years' 
 service in that gi-ade before being eligible for 
 promotion to the grade of lieutenant. * * * 
 When there is an odd number of officers in the 
 grade or rank of rear admiral in the line or in 
 each corps, the lower di^dsion thereof shall in- 
 clude the excess in number, except where there 
 is but one. Whenever a final fa-action occurs in 
 computing the authorized number of any corps, 
 gi-ade or rank in the naval ser\-ice, the nearest 
 whole number shall be regarded as the author- 
 ized number: Provided, That at least one officer 
 shall be allowed in each grade or rank. For 
 the purpose of determining the authorized 
 number of officers in any grade or rank of the 
 line or of the staff corps, there shall be excluded 
 from consideration those officers carried by law 
 as additional numbers, including staff officers 
 heretofore permanently commissioned with the 
 rank of rear admiral, and nothing contained 
 herein shall be held to reduce below that here- 
 tofore authorized by law the number of officers 
 in any grade or rank in the staff corps. ' ' (As to 
 the total authorized number of enlisted men, 
 see note to sec. 1417, R. S.) 
 
 The act of Mav 22, 1917 (40 Stat., 84), as 
 amended by act of July 1, 1918 (40 Stat., 715), 
 which authorized a temporary increase in the 
 number of enUsted men, pro\dded (sec. 4) for the 
 temporary appointment and promotion of addi- 
 tional commissioned officers, based upon such 
 temporary increase in the enlisted strength, such 
 additional tempoi-ary officers to be distributed 
 between the various grades and ranks, not above 
 lieutenant commander, in accordance with the 
 provisions of the act of August 29, 1916 (above 
 cited). The same act and section further pro- 
 vided for temporary appointments and promo- 
 tions to fill, during the period of the war, the 
 deficiency existing prior to May 22, 1917, in the 
 total number of commissioned officers authorized 
 by the act of August 29, 1916, and ' ' that lieuten- 
 ants (junior grade) and ensigns may be consid- 
 ered eligible for temporary promotions to the 
 grades of Lieutenant and Lieutenant(jumor grade) 
 without regard to length of service in grade." 
 
 The act of July 11, 1919 (41 Stat., 137, 138), 
 which temporarily increased the enlisted 
 strength for specified periods, provided that 
 during such periods the "average number" of 
 commissioned officers of the line, including 
 temporary officers and reserves on active duty, 
 shall not exceed 4 per centum of the total tem- 
 porary authorized enlisted strength of the 
 Regular and Temporary Navy, and members 
 of the Naval Reserve Force in enlisted ratings 
 on active duty; with a pro\-iso that nothing in 
 said act "shall be construed as affecting "the 
 permanent commissioned strength of the Navy 
 as authorized bv existing law." 
 
 The act of June 4, 1920 (41 Stat., 834) pro- 
 vided "That the number of commissioned 
 officers of the line, permanent, temporary, and 
 reserve on active duty shall not exceed 4 per 
 centum of the total authorized enlisted strength 
 of the Regular Navy," with the pro\'iso that 
 nothing therein contained should be construed 
 as reducing the permanent commissioned 
 strength of the Regular Na\'y as authorized by 
 existing law. 
 
 Ensigns are commissioned as such from 
 among the graduates of the Naval Academy 
 (see acts Mar. 7, 1912, 37 Stat., 73, and July 9, 
 1913, 38 Stat., 103), and the appointment of 12 
 ensigns each year from among the boatswains, 
 gunners, machinists, chief boatswains, chief 
 gunners, and chief machinists in the Navy was 
 authorized by acts of ]\Iarch 3, 1903 (32 Stat., 
 1197), and March 3, 1909 (35 Stat., 771); see 
 also acts of March 3, 1899, section 12 (30 Stat., 
 1007); March 3, 1901 (31 Stat., 1129); and April 
 27, 1904 (33 Stat., 346). 
 
 Lieutenants (junior grade) are ap- 
 pointed by promotion from ensigns who have 
 had three vears' ser\dce as such (act Mar. 3, 
 1899, sec. 7, 30 Stat., 1005). By act of June 4, 
 1920, section 5 (41 Stat., 836) it was provided 
 that until June 30, 1923, promotions to lieu- 
 tenant (junior grade) and lieutenant may be 
 made without regard to length of service. 
 
 Additional ofla.cers are authorized by 
 various enactments, including the following: 
 Advancement of officers for "eminent and con- 
 spicuous conduct in battle or extraordinary 
 heroism" is authorized by sections 1506-1507, 
 Re^dsed Statutes, notwithstanding that the 
 higher grades to which such officers may be so 
 advanced already have the full number of offi- 
 cers specified bv law. Bv acts of March 3, 1901 
 (31 Stat., 1108) and June 16, 1906 (34 Stat., 296), 
 officers so advanced are to be carried as addi- 
 tional to the numbers of each grade in which 
 they serve. By sections 1508-1510, Re\ased 
 Statutes, any line officer receiving the thanks 
 of Congress for "highly distinguished conduct 
 in conflict with the enemy, or for extraordinary 
 heroism in the line of his profession," may be 
 advanced one grade, and such vote of thanks 
 shall be held "to affect such officer only." 
 Retired officers detailed for the command* of 
 squadrons or single ships in time of war may be 
 restored to the active list if they receive a vote 
 of thanks of Congress for their ser\'ices and 
 gallantrv in action aa:ainst the enemv (sec. 
 1465, R! S.). See also file 26521-iOO, June 19, 
 1920, noted below under "Effect of exceeding 
 number of officers allowed in anv grade." 
 
 The act of March 3. 1901 (31 Stat., 1108), pro- 
 vides that no promotion shall be made to fill a 
 vacancy occasioned by the promotion, retire- 
 ment, (ieath, resignation, or dismissal of any 
 officer who is an additional number in his grade 
 under the provisions of the said act; and sec- 
 tion 1510, Revised Statutes, provides that no 
 promotion shall be made to fill a vacancy occa- 
 sioned by the final retirement, death, resigna- 
 tion, or dismissal of an officer who has received 
 a vote of thanks. 
 
 Officers on the active list of the line who, 
 under the provisions of section 5 of the Navy 
 personnel act of March 3, 1899 (.30 Stat., 1005), 
 perform engineering duty on shore only, were 
 made "additional to the numbers in the grades" 
 in which they were serving or to which they 
 might be promoted, by act of March 4, 1911 (36 
 Stat., 1267). [Note: Such former engineer offi- 
 cers are now made available by law for any 
 shore duty compatible with their rank and grade. 
 See note to section 1390, Revised Statutes.] 
 
 The act of March 3, 1915 (38 Stat., 939). author- 
 ized the President to restore to the active list 
 
 451 
 
Sec. 1363. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 officers who were oompulsorily retiretl to create 
 vacamies in accordance mth section 9 of the 
 Navy i)erst)nnol act approved March 3, 1899 (;W 
 Stat", 100(1), and provided that ofhcers so tran.s- 
 ferrod to the active list shall be carried as addi- 
 tional numbers in the grades to Avhich trans- 
 ferred or thereafter promoted. Provision for 
 restoration to the active list of certain desig- 
 nated retired officers, as additional numbers in 
 grade, waa made by act of August 29, 1916 (39 
 Stat., 602). 
 
 The act of August 29, 1916 (39 Stat., 580), 
 pro^•ided for the appointment and detail of line 
 officers of the Navy for engineering duty only, 
 and the same act (39 Stat., 578, 579) provided 
 that such officers, and officers of the former 
 Engineer Corps "who are restricted by law to 
 the performance of shore duty only," shall, 
 when promoted by selection to the grades of 
 commander, captain, and rear admiral, "be 
 carried as additional numbers in grade." 
 
 The act of August 29, 1916 (39 Stat., 582, 586), 
 created a naval flying corps, to be composed in 
 
 8 art of 150 officers, detailed from the line of the 
 avy and from the Marine Corps, or appointed 
 to the line of the Navy or Marine Corps, for 
 aeronautic duties only, and provided that said 
 number of officers shall be in addition to the 
 total number of officers provided by law "for 
 the other branches of the naval service." 
 
 Warrant oflB.cers and commissioned war- 
 rant officers. — As to number of, authorized 
 by law, see note to section 1405, Revised Stat- 
 utes. 
 
 Naval Reserve. — The Secretary of the 
 Navy is authorized to establish a Ust of persons 
 who have been found eligible by examination 
 for commissions in any reserve or volunteer 
 naval force hereafter organized, other than the 
 Naval Militia, and, when exigency demands, the 
 President is authorized to issue commissions in 
 the Regular Navy to persons so qualified. The 
 President is also authorized to commission or 
 warrant former officers who have been honora- 
 bly discharged from the Navy. (Act Feb. 16, 
 1914, aec. 21, 38 Stat., 289.) 
 
 The act of August 29, 1916 (39 Stat., 587), 
 amended by acts of March 4, 1917 (39 Stat. , 1174), 
 April 25, 1917 (40 Stat., 37), April 25, 1917 (40 
 Stat., 38), May 22, 1917 (40 Stat., 84), July 1, 
 1918 (40 Stat., 708-712). and June 4, 1920 (41 
 Stat., 834), created a "Naval Reserve Force" 
 and provided for enrollment therein, for "gen- 
 eral service" only, of former officers and citizens 
 of the United States or of the insular possessions 
 and aliens, not enemies, who have declared 
 their intention to become citizens, who "may 
 be ordered into active serATice in the Navy by 
 the President in time of war or when, in his 
 opinion, a national emergency exists"; said 
 Naval Reserve Force to have the various grades 
 and ranks, not above the rank of lieutenant 
 commander, corresponding to those in the Navy. 
 
 National Naval Volunteers. — Bv act of 
 August 29, 1916 (39 Stat., 595), the "National 
 Naval Volunteers" was created, to be composed 
 of members of the Naval Militia, "to pro\dde a 
 force for use in any emergency, including that 
 of actual or imminent war, requiring the use of 
 naval forces in addition to those of the Regular 
 Navy." By act of July 1, 1918 (40 Stat. 708), 
 all laws relating to the Naval Militia and Na- 
 
 tional Naval Volunteers were repealed and the 
 President was authorized to transfer as a class 
 all members of the National Naval Volunteers 
 to the Naval Reserve Force or Marine Corps 
 Reserve. 
 
 The Coast Guard. — By act of January 28, 
 1915 (38 Stat., 800), amended by act of August 
 29, 1916 (39 Stat., 600), the Coast Guard was es- 
 tablished, to "constitute a part of the military 
 forces of the United States, ' ' and ' ' to operate as 
 a part of the Navy, subject to the orders of the 
 Secretary of the Navy, in time of war or when 
 the President shall so direct." 
 
 The Lighthouse Service. — By actof August 
 29, 1916 (39 Stat., 602), it was provided that 
 "the President is hereby authorized, whenever 
 in his judgment a sufficient national emergency 
 exists, to transfer to the service and jurisdiction 
 of the Navy Department, or of the War Depart- 
 ment, such vessels, equipment, stations, and 
 personnel of the Lighthouse Service as he may 
 deem to the best interest of the country." 
 
 Coast and Geodetic Survey. — By act of May 
 22, 1917, section 16(40 Stat., 87), it was pro- 
 vided ' ' that the President is hereby authorized, 
 whenever in his judgment a sufficient national 
 emergency exists, to transfer to the service and 
 jurisdiction of the War Department, or of the 
 Navy Department, such vessels, equipment, 
 stations, and personnel of the Coast and Geo- 
 detic Survey as he may deem to the best interest 
 of the country." 
 
 Public Health Service. — In times of threat- 
 ened or actual war the President is authorized 
 in his discretion to utilize the Public Health 
 Service in such manner as in his judgment shall 
 promote the public interest without impairing 
 the efficiency of the service for the purposes for 
 which created. (Act July 1, 1902, sec. 4, 32 
 Stat., 713.) 
 
 When detailed in time of war for duty with the 
 Navy, officers of the Public Health Service shall 
 be subject to the laws prescribed for the govern- 
 ment of the Navy (act July 9, 1917, 40 Stat., 
 242); and are empowered to serve on naval 
 courts-martial (act Oct. 6, 1917, 40 Stat., 393). 
 
 Acting officers. — As to authority for ap- 
 pointment of, see note to section 1410, Revised 
 Statutes. 
 
 During the Spanish War, by act of May 4, 
 1898 (30 Stat., 369), the President was author- 
 ized, for a period of twelve months, in case of an 
 exigency, to appoint officers of the Line and staff 
 not above the rank of commander, and warrant 
 officers, and officers of the Marine Corps not 
 above the rank of captain, as might be requisite; " 
 such officers to serve only during the continu- 
 ance of the exigency under which their services 
 were required in the then existing war. (In 
 this connection, see 22 Op. Atty. Gen., 82; and 
 U. S. V. Hite, 204U. S.,343.) 
 
 Number of officers not to be increased 
 ■without explicit legislation. — Legislation 
 relating to the Navy should not be construed 
 as impliedly increasing the number of officers 
 authorized by law, where no such result was 
 intended by Congress. Thus a law providing 
 that increased rank and pay should be conferred 
 upon certain officers on the active list who had 
 served as chiefs of bureaus in the Navy Depart- 
 ment should not be construed as creating a 
 vacancy in the list of officers of their former 
 
 452 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1364. 
 
 rank, with a resultant increase in the total num- 
 ber of officers. Such provision was intended 
 to affect only the officers for whose benefit it 
 was enacted, and not to increase the number of 
 officers in the Navy. When Congress has seen 
 fit to make increases in the number of officers in 
 the Navy, either generally or in particular corps 
 or grades, it has generally used specific and apt 
 language to accomplish that object. (28 Op. 
 Atty. Gen., 526; see also note to sec. 421, R. S.) 
 
 In accordance with the above opinion of the 
 Attorney General, held, that an act of Congress 
 providing that pharmacists in the Navy having 
 six years' service as such should be commis- 
 sioned as chief pharmacists, which grade had 
 not theretofore existed, was intended merely 
 to confer increased rank and emoluments upon 
 officers who had served a specified period as 
 pharmacists, and not to increase the total num- 
 ber of such officers; accordingly, the law having 
 previously limited the total number of pharma- 
 cists to 25, this limitation must be held to 
 embrace the new grade of chief pharmacist, and 
 said grades of pharmacist and chief pharmacist 
 combined, should be limited to a maximum of 
 25. (File 27213-3, May 6, 1913; see also 
 5460-81, May 12, 1916, and see note to sec. 
 1405, R, S.) 
 
 Effect of exceeding number of officers 
 alloAvedin any grade. — The law fixes the max- 
 mum number of officers in various grades in the 
 Navy; and where the number in each of the 
 grades is full , no newappointment, either original 
 or by promotion, can be made in those grades, 
 without either increasing the number allowed by 
 law, or removing some other officer. Therefore, 
 the nomination and confirmation of an officer 
 for appointment to a grade already full (com- 
 mander), vice M, "promoted," at a t me when 
 M had been nominated for promotion but 
 not confirmed and was therefore still in the 
 grade of commander, must either, first, increase 
 the number of commanders beyond that allowed 
 by law ; or second , operate to remove M from the 
 Navy; or third, operate to confirm M as a cap- 
 tain; or, fourth, be ineffectual or void. (23 Op. 
 Atty. Gen., 30, holding that in this case effect of 
 nomination and confirmation of successor to M, 
 was to confirm M's nomination as captain. 
 Compare 13 Op. Atty. Gen., 44, noted under 
 sec. 1457, R. S., '"Correction of erroneous re- 
 tirement.") 
 
 The President has not power, by and with the 
 advice and consent of the Senate, to increase 
 the number of commanders in the Navy beyond 
 the number expressly fixed and limited by Con- 
 gress. ^Vhile the Constitution gives the Presi- 
 dent the power, with the advice and consent of 
 the Senate, to appoint officers, it does not confer 
 power to create such offices as these, nor to 
 increase their number. He may appoint such 
 officers as are created by the Constitution or by 
 law, but there can be no doubt of the power of 
 Congress to fix and limit the number of such 
 officers as these, and such action is binding upon 
 
 both the Executive and the Senate, and can be 
 changed by Congress alone. (23 Op. Atty. 
 Gen., 30.) 
 
 The act of August 29, 1916 (39 Stat., 576), 
 while it does not in numbers fix the comple- 
 ment of the various commissioned grades and 
 ranks of the Navy, does specify a definite 
 method of determining the maximum number 
 of such officers by mathematical calculation. 
 The result of such calculation is the fixed num- 
 ber of officers allowed by law in each grade and 
 rank for the period covered thereby and the 
 number thus arrived at for any period can not 
 be exceeded during said period any more than 
 if the law had specified same in actual figures. 
 The power of Congress to reduce the number 
 of officers is undoubted. Accordingly, should 
 subsequent computations result in decreasing 
 the number of officers as previously fixed, it is 
 not unlikely that the excess number of officers 
 would be legislated out of office, in the absence 
 of further legislation. (File 28687-19, Jan. 24, 
 1917, citing 23 Comp. Dec, 33. But see file 
 26521-400, June 19, 1920, holding that officers 
 found to be in excess of the authorized number 
 in any grade, as the result of new computations, 
 should be carried as additional numbers in 
 grade until such time as the number is reduced 
 by death, resignation, promotion, retirement, 
 etc., no provision having been made by Con- 
 gress for the reduction of such officers to lower 
 grades, and the President not being required 
 or directed by law to revoke their commissions. 
 
 As to removal of officer by noraination and 
 confirmation of successor, see note to Constitu- 
 tion, Art. II, sec. 2, clause 2, under "VIII. 
 Power of Removal." 
 
 Vacancies necessary prior to promo- 
 tion. — "Officers subject to examination before 
 promotion to a grade limited in number by law 
 shall not be entitled to examination in such a 
 sense as to give increase of pay until designated 
 by the Secretary of the Navy to fill vacancies 
 in the higher grade." (Sec. 1495, R. S.) 
 
 Where an officer in a grade Limited in num- 
 ber by law, which grade counting him is full, 
 becomes due for promotion to fill a vacancy in 
 a higher grade, but his promotion is delayed, 
 a successor to such officer can not lawfully be 
 appointed until the latter's promotion is con- 
 summated. (File 26521-67, June 4, 1913; 
 26521-67:1, Dec. 4, 1913; see also 11 Comp. 
 Dec, 764; and file 28762-277, Dec 10, 1917.) 
 
 The act of June 22, 1874 (18 Stat., 191) [noted 
 under section 1561, Revised Statutes], provid- 
 ing that officers on promotion in certain cases 
 shall be entitled to the pay of the grade to which 
 promoted from date of rank therein, does not 
 apply so as to entitle officers to pay in the 
 higher grade from date of rank when it appears 
 that there were no vacancies in the higher grade 
 on that date. (23 Op. Atty. Gen., 30, 40.) 
 
 See note to section 1364, Revised Statutes, 
 under "Vacancies necessary prior to promo- 
 tion." 
 
 Sec. 1364. [When number of line officers may be exceeded. Obsolete.] 
 
 This section provided as follows: 
 
 "Sec. 1364. The provisions of the foregoing 
 section shall not have the effect to vacate the 
 commission of any lieutenant-commander. 
 
 lieutenant, master, or ensign appointed accord- 
 ing to law, in excess of the respective number 
 therein fixed ; nor to preclude the advancement 
 of any officer to a higher grade, for distinguished 
 
 453 
 
Sec. 1366. 
 
 Pt.2. RE VISED STAT UTES. 
 
 The Navy. 
 
 conduct in battle, or for extraordinary heroism, 
 under the provisions of sectiona liftooii hundred 
 and six and lifteen hundred and eight." — (16 
 July, 1862, c. 183, s. 9, v. 12, p. 584. 25 July, 
 1866, c. 231, S.S. ], 2. v. 14, p. 222.) 
 
 It was rendered obsolete by the Navy 
 personnel act of March 3, 1899, section 7 (30 
 Stat., 1005), which superseded "the foregoing 
 section" referred to herein, namely, section 
 1363, Revised Statutes, by making new and 
 complete provisions as to the number of officers 
 who should compose the active list of the line 
 of the N^u-y. 
 
 Provisions relating to the advancement 
 of ofl&cers to higher grades for distinguished 
 conduct in battle or for extraordinary heroism, 
 notwithstanding that such grades already had 
 the full number of ofiicers specified by law, 
 were contained in sections 1507 and 1509, Re- 
 vised Statutes, and the acts of March 3, 1901 
 (31 Stat., 1108) and June 16, 1906 (34 Stat., 296), 
 noted above, under section 1363, Revised Stat- 
 utes. Also, the act of March 3, 1903 (32 Stat., 
 1197, 1198), noted above under section 1363, 
 Revised Statutes, after increasing the number 
 of officers in certain gratles of the active list of 
 the line, and fixing a new total for such grades, 
 provided that "nothing contained in this act 
 shall affect the officers of the Navy who may 
 have been or may hereafter be advanced in 
 rank under existing provisions of law by which 
 
 they become extra numbers in their respective 
 graxles, or operate to vacate the commi.ssion of 
 any officers now in the service." See also note 
 to section 1363, Revised Statutes, under "Effect 
 of exceeding number of ofiicers allowed in any 
 grade." 
 
 Vacancies necessary prior to promo- 
 tion. — Section 1364 provides that the provisions 
 of the foregoing section shall not have the effect 
 to vacate the commission of certain grades of 
 officers appointed according to law, in excess 
 of the respective number therein fixed — thus, 
 by a familiar rule of construction, implying that 
 the commissions of other officers in excess of 
 the number fixed, might be thereby vacated. 
 (23 Op. Atty. Gen., 30.) 
 
 Sections 1364, 1506, and 1507 authorize the 
 advancement of officers of the Navy to higher 
 grades for eminent and conspicuous conduct in 
 battle or extraordinary heroism, even though 
 in excess of the number in such grade as fixed 
 by statute. These sections do not apply in the 
 cases of officers promoted in turn to fill vacan- 
 cies, and such promotions could not be sus- 
 tained if they increased the number of officers 
 of these grad.es beyond the number fixed by 
 law. (23 Op. Atty. Gen., 30, 39.) 
 
 See note to section 1363 Revised Statutes, 
 under "Vacancies necessary prior to promo- 
 tion." 
 
 Sec. 1365. [Selection of rear admirals during war.] During war rear- 
 admirals shall be selected from those officers on the active list, not below the 
 grade of commanders, who shall have eminently distinguished themselves by 
 courage, skill, and genius in their profession; but no officer shall be so promoted, 
 under this provision, unless, upon recommendation of the President by name, 
 he has received the thanks of Congress for distinguished service. — (16 July, 
 1862, c. 183, s. 7, v. 12, p. 584.) 
 
 Examinations prior to promotion on the active 
 list are required by sections 1493-1497, 
 Revised Statutes. See also section 1366, 
 Revised Statutes, belov,-. 
 
 In time of war the President may, by and with 
 the advice and consent of the Senate, 
 detail any officer on the retired list, not 
 below the grade of commander, for the 
 command of a squadron, with the rank and 
 title of "flag officer"; and retired officers 
 so detailed may be restored to the active 
 list if they receive a vote of thanks of 
 Congress. (Sees. 1463-1465, R. S.) 
 
 Temporary promotions to all grades in the 
 Navy, "during the period of the present 
 war," were authorized by act of May 22, 
 1917, section 4 (40 Stat., 85), as amended 
 by act of July 1, 1918 (40 Stat., 715, 716.) 
 
 President may select any officer not below 
 the grade of commander on the active list 
 of the Navy and assign him to the com- 
 
 mand of a squadron, with the rank and 
 titleof "flagoflicer. " (Sec. 1434, R. S.) 
 
 Thanks of (Congress, effect of: See sections 1465, 
 1508-1510, Revised Statutes. Persons who 
 have by name received the thanks of 
 Congress are entitled to the privilege of 
 admission to the floor of the House of 
 Representatives. (See Rules of the House 
 of Representatives.) 
 
 The act of August 29, 1916 (39 Stat., 578), pro- 
 vides that "hereafter all promotions to the 
 grades of commander, captain, and rear ad- 
 miral of the line of the Navy, including the 
 promotion of those captains, commanders, 
 and lieutenant commanders who are, or may 
 be, carried on the Navy list as additional 
 to the numbers of such grades, shall be by 
 selection only from the next lower respec- 
 tive grade upon the recommendation of a 
 board of naval officers as herein provided." 
 
 Sec. 1366. [Promotion to rear admiral during peace. Superseded.] 
 
 This section provided as follows: 
 "Sec. 1366. During peace, vacancies in the 
 grade of rear-admiral shall be filled by regular 
 promotion from the list of commodores, sub- 
 
 ject to examination according to law." — (16 
 July, 1862, c. 183, s. 7, v. 12, p. 584.) 
 
 It was superseded bv the act of March 3, 
 1899, section 7 (30 Stat., 1005), which abolished 
 
 454 
 
The Navy. 
 
 Pt.2. RE VISED STAT UTES . 
 
 Sec. 1368. 
 
 the grade of commodore on the active list of 
 the Navy. (See note to sec. 1362, R. S.) 
 Thereafter, promotions to the grade of rear ad- 
 miral were made by seniority from the grade 
 of captain. (See sec. 1458, R. S.) 
 
 New provisions for promotion to the 
 grade of rear admiral were contained in the 
 act of August 29, 1916 (39 Stat., 578), noted 
 under section 1365, above. 
 
 See also sections 1434, 1463, 1464, and 
 1497, Revised Statutes. 
 
 Sec. 1367. [Secretaries to Admiral and Vice Admiral.] The Admiral and 
 Vice Admiral shall each be allowed a secretary, who shall be entitled to the 
 rank and allowances of a lieutenant in the Navy. — (21 Dec. 1864, c. 6, s. 2, 
 V. 13, p. 420. 16 May, 1866, c. 84, v. 14, p. 48. 25 July, 1866, c. 231, s. 6, 
 V. 14, p. 223. 2 Mar., 1867, c. 174, s. 1, v. 14, p. 516.) 
 
 Appointments from civil life of secretaries or 
 clerks to the Admiral or Vice Admiral when 
 on sea service were prohibited by act of May 
 4, 1878 (20 Stat., 50) , which further provided 
 that an officer not above the grade of lieu- 
 tenant shall be detailed to perform the 
 duties of secretary to the Admiral or Vice 
 Admiral when on sea service. 
 Pay of secretaries to the Admiral and Vice Ad- 
 miral was fixed at $2,500 per annum by sec- 
 tion 1556, Revised Statutes. 
 Secretaries and clerks are not petty officers of 
 
 the Navy. (See sec. 1410,_R. S.) 
 See note to section 1362, Revised Statutes, as 
 to the grades of Admiral and Vice Admiral 
 in the Navy. 
 Appointment of secretary. — The appoint- 
 ment of secretary allowed the Admiral of the 
 Navy by section 1367, Revised Statutes, does 
 not belong to the President with the advice and 
 consent of the Senate, but devolves upon the 
 Admiral as one personal to himself, and the con- 
 temporaneous construction of the statute and 
 uniform practice thereunder by the executive 
 branch of the Government have accorded with 
 this view. (19 Op. Atty Gen., 589. As to ap- 
 pointment of officers in general, see note to Con- 
 stitution, Art. II, sec. 2, clause 2.) 
 
 It can not be supposed , in the absence of ex- 
 press pro\'ision, that Congress wished to deprive 
 the Admiral and Vice Admiral of the important 
 privilege of selecting their confidential assist- 
 ants, especially when such a privilege had 
 always been accorded to officers inferior to 
 them in rank. (19 Op. Atty. Gen., 589.) 
 
 The office of secretary to the Admiral is not an 
 independent office to be filled without regard to 
 the Admiral's nomination and for a life term 
 like that of a lieutenant in the line. By section 
 1362, Revised Statutes, it is provided that when 
 the office of Admiral becomes vacant, the grade 
 shall cease to exist. Thus, if the foregoing 
 opinion were not correct, we should have a sec- 
 retary to the Admiral without an Admiral. It 
 would then be a puzzling question to define the 
 scope of his official duties. Congress could not 
 have intended such an anomalous state of 
 affairs. (19 Op. Atty. Gen., 589.) 
 
 Section 1410, Revised Statutes, provides that 
 "all officers not holding commissions or war- 
 rants, or who are not entitled to them, except 
 such as are temporarily appointed to the duties 
 of a commissioned or warrant officer, and except 
 secretaries and clerks, shall be deemed petty 
 officers," etc. The necessary implication of 
 this section is that secretaries are officers not 
 holding commissions or warrants, and are 
 not entitled to them. (19 Op. Atty. Gen., 
 589.) 
 
 When Congress gave the Admiral and Vice 
 Admiral secretaries, it had been the established 
 practice in the Navy Department for 40 years 
 to allow commanders of fleets, squadrons, and 
 divisions to appoint secretaries to serve them 
 while in command; and such secretaries were 
 staff officers with the relative rank of lieutenant. 
 Without any legislation, therefore, the Admiral 
 and Vice Admiral, while in command on the 
 sea, would have been allowed secretaries on 
 their own appointment. The statutory pro- 
 vision embodied in section 1367 simply ex- 
 tended the privilege of a secretary to these 
 high officers of the Navy for their shore service 
 also. (19 Op. Atty. Gen., 589.) 
 
 Pay of secretary. — The position of secre- 
 tary to the Admiral was necessarily in abeyance 
 until the grade of Admiral was revived. 
 However, when the grade was revived, the 
 provisions of law relating to the secretary to 
 the Admiral became again operative. Not 
 being a commissioned officer, his pay was not 
 affected by the Navy personnel act of March 
 3, 1899. Accordingly, he is entitled to a salary 
 of $2, 500 per annum under section 1556, Revised 
 Statutes, and to the allowances of a lieutenant 
 in the Navy, under section 1367. (6 Comp. 
 Dec, 828.) 
 
 By special enactment of Congress the 
 appointment was authorized, as an assistant 
 paymaster in the Na\y, of Leonard G. Hoffman, 
 secretary to the late Admiral of the Navy, as 
 an additional number in grade, the services of 
 said Hoffman as secretary to be credited to 
 him, for purposes of pay, as service in the Navy. 
 (Act Mar. 4, 1917, 39 Stat., 1184). 
 
 Sec. 1368. [Medical Corps ; organization of. Superseded.] 
 
 This section provided as follows: 
 
 "Sec. 13(i8. The active list of the Medical 
 Corps of the Na\y shall consist of fifteen medical 
 directors, fifteen medical inspectors, fifty sur- 
 
 geons, and one hundred assistant surgeons." — 
 (3 Mar., 1871, c. 117, s. 5, v. 16, p. 535.) 
 
 It was superseded by a clause in the naval 
 appropriation act of August 5, 1882 (22 Stat., 285), 
 
 455 
 
Sec. 1368. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 which provided that " the active list of the Med- 
 ical Corps of the Navy shall hereafter consist 
 of fifteen medical directors, fifteen medical 
 ins])ecti)rs, fifty surgeons, and ninety assistant 
 and jKU'^^cd as.-<istant surLreons." 
 
 The number of oflB.cers was increased 
 bv act of June 7, 1900 (;U Stat., 697), which pro- 
 vided that ■ ■ the active list of surgeons shall here- 
 after consist of fifty-five, and that of passed 
 assistant and assistant surgeons of one hundred 
 and ten." 
 
 A further increase was made by the act 
 of March 3, liKW (32 Stat., 1197), which provided 
 that "the grades of the active list of the Navy 
 hereinafter designated shall be so increased that 
 there shall be * * * thirty additional sui'- 
 geons vvith the rank of lieutenant commander, 
 m all eighty-five; one hundred and twenty 
 additional passed assistant and assistant sur- 
 geons, with the rank, respectively, of Lieuten- 
 ant, and lieutenant (junior grade), in all two 
 hundred and thirty; * * * and not more 
 than twenty-five assistant surgeons * * * 
 in addition to those necessary to fill vacancies 
 in said grades, shall be appointed in any one 
 calendar year." 
 
 A further increase was made by the act of 
 June 12, 1916, section 4 (39 Stat., 224), entitled 
 "An act to authorizi and empower officers and 
 enlisted men of the Navy and Marine Corps to 
 Berve under the Government of the Republic of 
 Haiti, and for other purposes," which provided 
 for the follo\ving increase in the Navy: ] 
 surgeon, 2 pas.sed assi.stant surgeons, 5 hospital 
 stewards, and 13 hospital apprentices, first class. 
 
 The number of officers was again in- 
 creased by act of August 29, 1916 (39 Stat. , 576) , 
 which provided that "the total authorized 
 number of commissioned officers of the Medical 
 Corps shall be sixty-five one-hundred ths of one 
 per centum of the total authorized number oi 
 the officers and enlisted men of the Navy and 
 Marine Corps, including midshipmen. Hospital 
 Corps, prisoners undergoing sentence of dis- 
 charge, enlisted men detailed for duty with the 
 Naval Militia, and the Flying Corps." 
 
 The same act (39 Stat., 577^ pro\dded that 
 "the total number of commissioned officers 
 of the active list of the following mentioned 
 staff corps at any one time, exclusive of com- 
 missioned warrant officers, shall be distributed 
 in the various grades of the respective corps 
 as follows: Medical Corps: One-half medical 
 directors with the rank of rear admiral to four 
 medical directors with the rank of captain, to 
 eight medical inspectors with rank of com- 
 mander, to eighty-seven and one-half in the 
 grades below medical inspector * * *. 
 vVTien there is an odd number of officers in the 
 g;rade or rank of rear admiral in the line or 
 m each corps, the lower division thereof shall 
 include the excess in number, except where 
 there is but one. ^\^lenever a final fraction 
 occurs in computing the authorized number of 
 any corps, grade or rank in the naval service, 
 the nearest whole number shall be regarded as 
 the authorized number: Provided, That at 
 least one officer shall be allowed in each grade 
 or rank. For the purpose of determining the 
 authorized number of officers in any grade or 
 rank of the Une or of the staff corps, there shall 
 be excluded from consideration those officers 
 
 carried by law as additional numbers, including 
 staff officers heretofore permanently commis- 
 sioned with the rank of rear admiral, and noth- 
 ing contained herein shall be held to reduce 
 below that heretofore authorized by law the 
 number of officers in any grade or rank in the 
 staff cor])s." 
 
 In the same act (39 Stat., 581) it was provided 
 that "hereafter the authorized number of sur- 
 geons in the United States Navy be, and it is 
 hereby, increased by one; and that hereafter 
 the Secretary of the Navy be, and he is hereby, 
 authorized to detail one or more officers of the 
 Medical Corps of the United States Navy for 
 duty with the Military Relief Di^^.8ion of the 
 American National Red Cross. " 
 
 Distribution of medical officers between 
 lower grades. — In the distribution of medical 
 officers between the grades below medical 
 inspector under the act of August 29, 1916, the 
 following numbers fixed by prior laws should 
 be regarded as established by law and not 
 to be reduced in consequence of anything 
 contained in the act of August 29, 1916: 87 
 in the grade of surgeon and 232 in the grades 
 of passed assistant and assistant surgeon. 
 There is no fixed dLstribution between the 
 grades of passed assistant and assistant sur- 
 geon, except for the specific authorization of 
 two passed assistant surgeons contained in the 
 act of June 12, 1916, section 4, above cited. 
 Subject to these restrictions, the increase in the 
 grades of the Medical Corps below medical 
 inspector resulting from the act of August 29, 
 
 1916, may be distributed among the three lower 
 grades in such proportions as may, in the discre- 
 tion of the Secretary of the Navy, best serve 
 the interests of the Navy. (File 27223-37, 
 Mar. 20, 1918. See also note to sec. 1376, 
 R. S.) 
 
 The temporary appointment of addi- 
 tional officers during the period of the exist- 
 ing war was authorized by the act of May 22, 
 
 1917, section 4 (40 Stat., 85), as amended by 
 act of July 1, 1918 (40 Stat., 715), which also 
 authorized temporary appointments and pro- 
 motions to fill, during the period of the war, the 
 deficiency existing prior to May 22, 1917, in the 
 total number of commissioned officers author- 
 ized by the act of August 29, 1916. 
 
 Acting assistant surgeons, not to exceed 
 twenty-five may be appointed by the President 
 for temporary service (act May 4, 1898, 30 Stat., 
 380); and such acting assistant surgeons as the 
 exigencies of the service may require, may be 
 appointed by the Secretary of the Navy for tem- 
 porary service in case of war. (Sec. 1411, R. S., 
 as amended by act Feb. 15, 1879, sec. 2, 20 
 Stat., 295; see also note to sec. 1410, R. S.) 
 
 A Dental Corps, to be a part of the Medical 
 Department of the Naw, was authorized by the 
 act of August 22, 1912 (37 Stat., 344), which was 
 superseded by new proAOsions on the same sub- 
 ject contained in the act of August 29, 1916 
 (39 Stat., 573), which was in turn superseded 
 by act of July 1, 1918 (40 Stat., 708). 
 
 A dental surgeon in the Navy for duty 
 at the Naval Academy was authorized by 
 act of March 4, 1913 (37 Stat., 891), as amended 
 by act of July 1, 1918 (40 Stat., 709), as a special 
 provision for the civilian dentist then employed 
 at the Naval Academy. 
 
 456 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1368. 
 
 A Medical Reserve Corps, to be a con- 
 stituent part of the Medical Department of the 
 Navy, was established by the act of August 22, 
 1912 (37 Stat., 344), " under the same provisions, 
 in all respects (except as may be necessary to 
 adapt the said provisions to the Navy), as those 
 providing a Medical Reserve Corps for the 
 Army." This law was repealed and provision 
 for transfer of Medical Reserve Corps officers to 
 the Naval Reserve Force was made by act of 
 July 1, 1918 (40 Stat., 708). 
 
 A Navy Dental Reserve Corps wa=i 
 authorized by the act of March 4, 1913 (37 Stat., 
 903), to be organized and operated under the 
 provisions of law providing for the Navy Med- 
 ical Reserve Corps. This act was superseded by 
 new provisions on the same subject contained 
 in the act of August 29, 1916 (39 Stat., 574), and 
 the latter act was repealed and provision made 
 for transfer of Dental Reserve Corps officers to 
 the Naval Reserve Force, by act of July 1, 1918 
 (40 Scat., 708). 
 
 A Hospital Corps, to be permanently 
 attached to the Medical Department of the 
 Navy, was established by act of June 17, 1898 
 (30 Stat., 474), as amended by acts of August 
 22, 1912 (37 Stat., 345), and August 29, 1916 (39 
 Stat., 572). 
 
 A Nurse Corps (female) was established 
 by the act of May 13, 1908 (35 Stat., 146). 
 
 Public Health Service. — By act of July 
 1, 1902, section 4 (32 Stat, 713) it was provided 
 that "the President is authorized, in his 
 discretion, to utilize the Public Health and 
 Marine-Hospital Service in times of threatened 
 or actual war to such extent and in such manner 
 as shall in his judgment promote the public 
 interest without, however, in any wise impair- 
 ing the efficiency of the service for the purposes 
 for which the same was created and is main- 
 tained." 
 
 By act of February 3, 1905 (33 Stat., 650) it 
 was provided that "said Service shall remain 
 under the jurisdiction of the Treasury Depart- 
 ment until otherwise hereafter specifically 
 provided by law." 
 
 By resolution of July 9, 1917(40 Stat., 242), it 
 was provided that ' ' when officers of the United 
 States Public Health Service are serving on 
 Coast Guard vessels in time of war, or are de- 
 tailed in time of war for duty with the Army 
 or Navy in accordance with law, they * * * 
 shall be subject to the laws prescribed for the 
 government of the service to which they are 
 respectively detailed." 
 
 By act of October 6, 1917 (40 Stat., 393) com- 
 missioned officers of the Public Health Service 
 were authorized to serve on naval courts-martial 
 "when actively serving under the Navy De- 
 partment in time of war or during the existence 
 of an emergency, pursuant to law, as a part of 
 the naval forces of the United States." 
 
 The designation of the Public Health and 
 Marine-Hospital Service was changed to Public 
 Health Service by act of August 14, 1912 (37 
 Stat., 309). 
 
 A Naval Reserve, composed of persons 
 who have been found qualified by examination 
 for commissions in any reserve or volunteer 
 naval force hereafter organized, other than the 
 Naval Militia, is authorized by the act of Febru- 
 ary 16, 1914 section 21 ^38 Stat., 289); and the 
 
 same act provides that when exigency demands 
 the President is authorized to issue commis- 
 sions in the Regular Navy to persons so quali- 
 fied; and also authorizes the President to com- 
 mission or warrant former officers who have been 
 honorably discharged from the Navy. 
 
 As to other auxiliary naval forces, see note 
 to section 1363, Revised Statutes. 
 
 Number of oflBlcers not to be increased 
 ■without explicit legislation. (See note to 
 sec. 1363, R. S.) 
 
 Passed assistant surgeons. — Section 1368, 
 Revised Statutes, did not include the grade of 
 passed assistant surgeon as a part of the Medical 
 Corps. However, by section 1556, Revised 
 Statutes, • provision was made for the pay of 
 passed assistant surgeons at a higher rate than 
 that allowed assistant surgeons by the same 
 section; it was also provided by said section 
 that "assistant surgeons of three years' service, 
 who have been found qualified for promotion 
 by a medical board of examiners," shall be 
 allowed "the pay of passed assistant surgeons." 
 Where an assistant surgeon had successfully 
 passed his examination for promotion, the 
 practice was for the Secretary of the Navy to 
 notify him by letter that the report of the board 
 of examiners had been approved by the depart- 
 ment, and from that date he would be regarded 
 as a "passed assistant surgeon." In a case 
 where this procedure was followed, it was held 
 by the Supreme Court that "the place of passed 
 assistant surgeon is an oflice, and the notification 
 by the Secretary of the Na\7^ was a valid 
 appointment to it," notwithstanding that the 
 law (see sec. 1369, R. S.) provided that all 
 appointments in the Medical Corps of the Navy 
 should be made by the President, by and with 
 the advice and consent of the Senate. (Moore 
 V. U. S., 95 U. S., 760, see also Collins v. U. S. 
 14 Ct. Cls., 568.) 
 
 In the organization of the Medical Corps of 
 the Navy a passed assistant surgeon and an as- 
 sistant surgeon were, under the Revised Stat- 
 utes (sees. 1368, 1375, 1474, 1480, and 1556), offi- 
 cers 01 one and the same grade, but belonging to 
 different classes in such grade. A passed as- 
 sistant surgeon was simply an assistant surgeon 
 who had been officially notified that he had 
 passed successfully the examination necessary 
 to be imdergone before he could be appointed a 
 full surgeon when a vacancy might occur. If 
 it had been the purpose of Congress in adopting 
 the Re\dsed Statutes to make passed assistant 
 surgeon a distinct grade, instead of a mere classi- 
 fication under a grade, the same particularity 
 of enactment would have been used in their case 
 as in the case of passed assistant paymasters 
 (sees. 1376, 1377, 1380, and 1383) and passed as- 
 sistant engineers (sees. 1390, 1392). But no 
 such legislation is to be found. (19 Op. Atty. 
 Gen., 169.) 
 
 In United States v._ Moore (95 I^ S., 760), it 
 was held that a nomination by the President 
 and confirmation by the Senate were not neces- 
 sary to make a passed assistant surgeon out of an 
 assistant surgeon, a position that could not have 
 been taken if there had been such a grade as 
 passed assistant surgeon. (19 Op. Attv. Gen., 
 169.) 
 
 The reference in section 1480, Re\ised Stat- 
 utes, to the "grades" established in the six nre- 
 
 457 
 
Sec. 1368. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 ccdiii" eections, which inchided mention of 
 piusscd assistant eurgeons, was an error on the 
 part of the revisers, and could not beionstrued 
 as an intention to make a change in the organi- 
 zation of the Medical Corps of the Navy by es- 
 Uiblisliinp passed assistant surgeon as a separate 
 grade. (1!) Op. Atty. Gen., 1()9.) 
 
 It seems vorv clear that under the law, as it 
 stood when the act of August 5, 1882 (22 Stat., 
 285), was passed, there was no such "grade" in 
 the Navy as that of pa.sscd assistant surgeon. 
 That act was intended merely to cut down the 
 number of assistant and j)asscd a.^sistant siu'- 
 geons, ''and to deduce anything more, espe- 
 cially anything so radical as a change in the or- 
 ganization of the Medical Corps, by establishing 
 a new grade, would be * * * to take an un- 
 warrantable liberty with the language of the 
 statute. (19 Op. Atty. Gen., 169.). 
 
 A court is not always confined to the written 
 words of a statute; in order to avoid giving 
 higher pay to an inferior officer, the words " as- 
 sistant siu'geon," as used in a statute maybe 
 cons^^rued to include passed assistant surgeons, 
 and the latter, as well as assistant surgeons, 
 thus held to rank wilh captains in the Army 
 (U. S. V. Farenholt, 206 U. S., 226.) 
 
 [Passed as.sistant surgeons now clearly consti- 
 tute a separate ' ' grade " in the Navy, by A-irtue of 
 theactofFebruaiy 13, 1897 (29 Stat., 52G), which 
 proA^ided that "passed assistant surgeons now 
 borne upon the Navy Register shall be commis- 
 sioned as such by the President, such commis- 
 sions to bear the dates upon which said passed 
 assistant surgeons, respectively, received their 
 appointments as such; and hereafter assistant 
 surgeons shall be regularly promoted and com- 
 missioned as passed assistant surgeons, and 
 passed assistant surgeons as surgeons, subject to 
 such examinations as may be prescribed by the 
 Secretary' of the Navy. "] 
 
 Medical attendance allowed persons in 
 Navy. — See section 1586, Revised Statutes. 
 
 Compulsory medical treatment of per- 
 sons in Navy. — An enlisted man refused to 
 permit an injection, for the purpose of im- 
 munization, of anti-diphtheritic serum during 
 the prevalence of an epidemic of diphtheria on 
 board his ship; for his refusal he was reported 
 by Ills commanding officer to the Navy Depart- 
 ment; liis trial by general court-martial was 
 ordered, resulting in liis conA-iction. which was 
 approved by the Secretary of the Navy on 
 February 11, 1910. (G. C. M. Rec. No. 21477; 
 see file 26253-98, May 17, 1910.) 
 
 An enli.sted man refused to submit to an 
 injection of typhoid prophylactic, as recjuired 
 by general order issued by the Secretary of 
 the Navy and the order of his commanding 
 officer; he was tried by general court-martial 
 and convicted of "refusing to obey the lawful 
 order of his sujjerior officer." Held, that he 
 was legally convicted, and the fact that the 
 proposed treatment violated the tenets of his re- 
 ligious faith . could not legally justify his refusal 
 to obey the orders of his official superiors. 
 (File 26251-6149:4, .Tune 21, 1912.) 
 
 An enlisted man refused to allow the medical 
 officer properly to treat him; the treatment 
 contemplated was not dangerous nor very pain- 
 ful; the result of his refusal was carefully ex- 
 plained to Mm and he persisted in his refusal. 
 
 He was accordingly tried therefor by summary 
 court-martial. (File 1117-2, Oct. 11, 1906; see 
 file 26253-98, May 17, 1910.) 
 
 Wliile the Navy Department will not under- 
 take to lay down, as a general rule, that a man 
 mu.st, ])articularly in cases involving risk of 
 life or loss of Umb, submit to a surgical opera- 
 tion, on the other hand it can not accept the 
 opinion that it is optional with the man con- 
 cerned whether or not he shall submit to such 
 an operation in the course of medical treat- 
 ment. In ordinary ca.«es when, in the 
 opinion of the medical officer, after consulta- 
 tion, if advisable, with other surgeons available, 
 it is deemed necessary, in order to restore a 
 man to his capacity for the performance of his 
 duties, that a minor surgical operation be made 
 upon him, he can be required to undergo the 
 same, under penalty of punishment, as by 
 sentence of court-martial, m case of his refusal 
 to submit thereto. (File 1165-02, Feb. 12, 
 1902.) 
 
 The Navy Department is of the opinion that 
 an enlisted man should not be required to 
 undergo a surgical oiieration for hernia in 
 opposition to his wishes, and that disciplinary 
 action should not be taken against him on 
 account of his refusal to permit such operation. 
 (File 1117, Mar. 17, 1905; file 1117-1, Mar. 10, 
 1906.) 
 
 The Navy Department has heretofore held 
 that a man need not submit to an operation for 
 hernia against his wishes, while the War De- 
 partment has held otherwise. The principle 
 seems to be the same in both departments as 
 to an operation involving risk of life even 
 though there be diversity in the application of 
 the rule. Held, that one in the naval service 
 may not, against his will, be ordered to submit 
 to an operation which is dangerous to life or 
 limb, whereas he may be ordered to submit to 
 an operation which would correct a condition 
 which destroys his usefulness, when such oper- 
 ation may fairly be said, by a responsible 
 medical officer, to be of such a character as not 
 to endanger the life or limb of the patient, under 
 the conditions existing at the time of operation 
 or under the conditions which were believed 
 then to exist and which an experienced medical 
 officer would, in the exercise of due care, be 
 justified in believing to exist. (File 7036-382. 
 Nov. 9, 1917; C. M. O. 72, 1917, p. 18.) 
 
 "It will be noted, from the foregoing, that 
 so far as the Department's policy in such 
 matters is concerned, a distinction is made 
 between a minor operation and one of greater 
 magnitude or danger, such as an operation for 
 hernia. In the former case a man, and doubt- 
 less an officer, may be required to submit to 
 such an operation under penalty of punishment 
 upon his refusal. But in the case of an opera- 
 tion for hernia, that is, one of greater danger, 
 he 'should not be reciuired to undergo a surgical 
 operation' therefor in opposition to his wishes." 
 (File 26253-98, May 17, 1910.) 
 
 The finding of a retiring board, that the 
 incapacity of an officer of the Marine Corps is 
 due to the fact that he will not submit to an 
 operation recommended by responsible medical 
 officers of the Navy, and is therefore not the 
 result of an incident of the service, should be 
 disapproved. It appears to be clear upon 
 
 458 
 
The Navy. 
 
 Pt. 
 
 REVISED STATUTES. 
 
 Sec. 1368. 
 
 principle, and in accordance witli precedent, 
 that he should not be required to submit to the 
 operation which was advised in his case, and 
 which was of a serious nature. (File 26253-98, 
 May 17, 1910.) 
 
 If a disability results from an incident of the 
 service, and is of such a serious character that 
 a person in the service may properly decline 
 to be operated upon, such person is entitled to 
 a finding of ' 'in line of duty." But where one 
 may properly be ordered to submit to opera- 
 tion, and is punishable for failure so to submit, 
 the notation of record, "not in line of duty, 
 due to his own misconduct," correctly reflects 
 the facts. A condition having its inception in 
 an incident of the service ceases to be due to 
 that cause and becomes instead traceable to 
 the recalcitrance of the patient. (File 7036- 
 382, Nov. 9, 1917.) 
 
 Medical attendance to persons not in 
 the Navy. — ^Medical officers are required by 
 the Na^'y Regulations, in addition to their ofli- 
 cial duties, to attend the families of officers and 
 enlisted men residing within a prescribed dis- 
 tance from navy yards, na^■al stations, recruit- 
 ing offices, and the Navy Department; and to 
 render professional assistance to mechanics or 
 laborers injured while at work in na\y yards. 
 (R-1006, Navy Regs. 1913.) 
 
 There is no provision of law which prohibits 
 professional attendance by medical officers 
 upon families of officers of the naval service, 
 and if such attendance does not interfere with 
 the necessary service to officers and men of the 
 Navy and Marine Corps, it is not contrary to 
 law. _ (File 28019-17, Jan. 26, 1912.) 
 
 United States medical officers, where practi- 
 cable, shall furnish reasonable medical, surgical, 
 and hospital ser^•ices to Federal employees in- 
 jured while in the performance of duty. (Act 
 Sept. 7, 1916, 39 Stat., 742.) 
 
 The Bureau of War Risk Insurance shall, by 
 arrangement -with the Secretary of the Na\y, 
 make use of the serAices of surgeons in the Navy. 
 (Act Oct. 6, 1917, sec._ K, 40 Stat., 399.) 
 
 Persons injured while in the naval ser\-ice in 
 the line of duty shall be furnished by the United 
 States such reasonable governmental medical, 
 surgical, and hospital services as the director of 
 the Bureau of War Risk Insiu-ance may deter- 
 mine to be useful and reasonablv necessary. 
 (Act Oct. 6, 1917, sec. 302 (4), 40 Stat., 406.) 
 
 Persons apphdng for or in receipt of compen- 
 sation under the War Risk Insurance Act, Art. 
 Ill, shall, as frequently and at such times and 
 places as may lie reasonably required, submit to 
 examination by medical officers of the United 
 States. (Act Oct. 6, 1917, sec. 303, 40 Stat., 
 406.) 
 
 [Medical officers of the Army are required by 
 law to attend the families of officers and soldiers 
 free of charge whenever practicable. (Act July 
 5, 1884, 23 Stat.j 112.)] 
 
 Commanders m chief, senior officers present, 
 and division commanders may require the med- 
 ical officers of their commands to render profes- 
 sional aid to persons not in the naval service, 
 when such aid can be rendered without detri- 
 ment to the interests of the Government, and 
 is necessary and demanded by the laws of 
 humanity or the principles of international 
 courtesy. (R-1607, Navy Regs. 1913.) 
 
 A medical officer in the Navy is entitled to 
 compensation from appropriations under con- 
 trol of the Department of Justice for professional 
 services rendered by him to United States pris- 
 oners in a United States jail. In this case it 
 appeared that it had been the custom of the De- 
 partment of Justice for many years to employ 
 medical officers of the Navy to render necessary 
 medical services to prisoners confined in the 
 jail in question, for which services the medical 
 officers were paid by the local United States 
 marshal from the appropriation "support of 
 prisoners." In passing upon the marshal's ac- 
 counts, certain fees thus paid were disallowed 
 by the Auditor for the State and Other Depart- 
 ments, on the ground that, as the medical officer 
 was an assistant surgeon in the Navy, his com- 
 pensation was fixed by law, and therefore under 
 section 1765, Revised Statutes, he was not en- 
 titled to receive any further salary or fees from 
 the Government. The marshal called upon 
 the medical officer to refund the amounts disal- 
 lowed, which the latter refused to do, where- 
 upon the marshal made a report to the Secretary 
 of the Na\'y, who declined to take any action 
 in the matter. Thereafter, the action of the 
 auditor was reversed by the Comptroller of the 
 Treasury, who stated that the medical officer 
 in question was not required by virtue of his 
 office to attend the prisoners in question, and 
 followed the principle applied in 18 Comp. 
 Dec, 156, inwhich it was held that, "where a 
 clerk to a United States attorney tj-pewrites 
 official reports for an examiner of the Bureau of 
 Investigation, Department of Justice, and the 
 making of such reports is not authorized or di- 
 rected by a superior officer, such typewriting 
 is not a part of the official duties of said clerk, 
 and compensation therefor is not prohibited by 
 sections 1764 and 1765 of the Revised Stat- 
 utes." (Comp. Dec, May 15, 1912, 45 MS. 
 Comp. Dec, 300; see file 6320-15, Bu. Nav. 
 As to appropriation chargeable with expenses 
 of officer detailed for duty under another de- 
 partment, see note to sec. 1437, R. S.) 
 
 The private practice of medicine and surgery 
 by a medical officer of the Navy in competition 
 with a private physician is not disapproved by 
 the Navy Department under the circmnstances 
 of the case presented. (File 17088-8, Jan. 4 
 and 19, 1910. In this case the facts as accepted 
 by the department were that for many years 
 there had never been a civilian doctor resident 
 in the vicinity of the naval hospital, which 
 compelled the naval medical officer to assume 
 private practice, for a large portion of which he 
 received no remuneration; that the private 
 physician who protested to the department was 
 not permanently located in the immediate 
 vicinity of the hospital, but had a sanitarium 
 and business interests at a distance, which 
 necessitated his absence from town for periods 
 of a month at a time; that should the naval 
 medical officer be prohibited from practicing 
 outside of Navy limits, the inhabitants of the 
 town and surrounding country, a number of 
 whom were destitute, would be left without the 
 services of a physician; that the professional 
 and personal probity of the medical officer in 
 question was satisfactorily established ; that the 
 resources of the naval hospital were not being 
 used by him for personal profit or in any manner 
 
 54641°— 22 30 
 
 459 
 
Sec. 1368. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 inconsistent with proper practice; that said 
 nunlical olhcer had observed professional 
 ethics in liis association with patients and with 
 other medical practitioners, and would unques- 
 tionably continue to do so. See also, as to 
 same ca-^ie. lile 118514 Bu. M. and S., and file 
 6320-9, Bu. Nav.) 
 
 A member of the Hospital Corps of the Navy 
 treated a private patient who called at the naval 
 dispensary and whose case reciuircd immediate 
 attention. He acce]>ted compensation for such 
 treatment. A warrant for his arrest for practic- 
 ing medicine without a license was issued at the 
 instanceof a private medical practitioner located 
 inthe\'icinity of the naval station. Upon report 
 of the occurrence to the Navy Department the 
 case was immediately referred to the Attorney 
 General, who detailed counsel for the defense, 
 with the result that the case was dismissed by 
 the civil magistrate. (File 6092-2.3.3.) 
 
 Right to practice medicine and sur- 
 gery.— "It is well settled that under the 
 p<ilice power inherent in the State, the legis- 
 lature may enact regulations for the examina- 
 tion and registration of physicians, and the 
 practice of medicine and surgery, and such 
 statutes violate neither the Federal nor the 
 State constitutions. Similar statutes have 
 been sustained for the regidation of the practice 
 of dentistry." (.30 Cyc, 1547.) 
 
 "The qualifications prescribed by the sev- 
 eral States to entitle one to enter upon the 
 practice of medicine and surgery may be gen- 
 erally classified as follows: (1) The candidate 
 must have a diploma from a medical college in 
 good standing and, in addition, must pass a 
 satisfactory examination before a board of ex- 
 aminers. (2) The candidate must pass a satis- 
 factory examination, as in the first class, but is 
 not required to have a diploma. (3) The can- 
 didate may either present an acceptable di- 
 ploma, or, if he has no diploma, he may be 
 examined as to his qualifications. (4) The ap- 
 plicant must hold a diploma issued by a rep- 
 utable medical college, which must be satis- 
 factorily shown to belong to him." (30 Cyc, 
 1548.) 
 
 "The statutes in many States except from 
 their operation certain classes of persons, and 
 services rendered in particular cases. Thus it 
 is commonly provided that the statute shall not 
 apply to any commissioned medical officer of 
 the United States Army, Naw, or Marine 
 service; * * * physicians called into con- 
 sultation from another State, or to treat a par- 
 ticular case, and who do not otherwise practice 
 in the State; * * * or to ser\dces rendered 
 gratuitously, or in case of emergency, or to the 
 administration of domestic medicines. These 
 exemptions have been attacked as unconsti- 
 tutional on the ground of discrimination, but 
 have been upheld by the courts." (30 Cyc, 
 1560.) 
 
 The act of March 3, 1896 (29 Stat., 198), "to 
 regulate the practice of medicine and surgery, 
 to license physicians and surgeons, and to 
 punish persons violating the provisions thereof 
 in the District of Columbia," provided (sec. 
 12) "that this act shall not apply to commis- 
 sioned surgeons of the United States Army, 
 Nav-y, or Marine Hospital Service, nor to regu- 
 larly licensed physicians and surgeons in actual 
 
 consultation from other States or Territories, nor 
 to regidarly licensed physicians and surgeons 
 actually called from other States or Territories 
 to attend specified cases in the District of Co- 
 lumbia, nor to the treatment of any case of 
 actual emergency, * * * nor to the use of 
 ordinary domestic remedies without fee, gift, 
 or consideration of any kind." 
 
 "An emergency means a case in which ordi- 
 nary medical practitioners are not available, 
 as where the exigency is of so pressing a char- 
 acter that some kind of action must be taken 
 before such parties can be found or procured." 
 (30Cvc., 1560, citing People i'. Lee Wah, 71 Cal., 
 80, li Pac, 851.) 
 
 The treatment of civilian patients by a med- 
 ical officer of the Navy within the limits of the 
 Naval Reservation at Indianhead, Md., can not 
 be prosecuted by the State authorities as a 
 violation of State laws prohibiting the practice 
 of medicine and surgery without a License. 
 (File 6692-233; see also note to sec. 355, R. S., 
 under "VI. Jurisdiction, Naval Reservations.") 
 
 Right of medical officers to perform 
 autopsies on deceased members of the 
 naval personnel. — The following princijiles 
 are established by judicial decisions concerning 
 the power of coroners and attending physicians 
 to perform autopsies without consent of rela- 
 tives of the deceased: 
 
 "1. In general, coroners are authorized to 
 hold inquests and perform autopsies only in 
 cases of death accompanied by suspicious cir- 
 cumstances such as to indicate that death 
 resulted from violence or other unlawful means. 
 This matter, however, is regulated by statutes 
 in the different jurisdictions, some of which are 
 very much broader in their terms than others. 
 
 "2. WTiere the attending physician is re- 
 quired by law to make a report of death showing 
 the cause thereof, or where the law requires a 
 burial certificate to be issued before interment 
 of the remains, a post-mortem examination is 
 authorized, regardless of the consent of the 
 relatives, where such an examination is nec- 
 essary to determine the cause of death. This 
 question is wholly distinct from the subject of 
 coroner's inquests, and in cases of this character 
 an autopsy may be performed -without the 
 existence of any suspicious circumstances. In 
 some of the cases considered in support of this 
 statement, the autopsy was authorized by the 
 appropriate city authorities. In others, the 
 autopsy was performed by the attending phy- 
 sician upon his OAvn responsibility and his 
 action sustained by the courts. 
 
 "3. In cases where an autopsy is proper, it 
 must be performed in a decent manner, with 
 due regard to the sensibilities of the family and 
 the respect due to the dead. Accordingly, 
 there should be no further disfigurement of the 
 body than is absolutely necessary, and any 
 parts of the body removed should be restored 
 for burial, unless it be necessary to preserve 
 some particular organ for further examination 
 as to whether a crime had been committed or 
 for e^ddence. " (File 13673-1587, Apr. 22, 1912). 
 
 The Na\T Regulations, 1909, articles 1644 
 (1), 1645 (3), and 1646 (2) [embodied in 
 "Naval Courts and Boards," 1917, articles 596- 
 608, superseding Na\y Regulations, 1913, arti- 
 cles R 321, 322, and 323], are similar to the 
 
 460 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1369. 
 
 various State Btatutee relating to the duties of 
 coroners, and clearly authorize the making of 
 a post-mortem examination, without the con- 
 sent of the family; whenever death occurs in 
 the Navy under the conditions stated by the 
 Regulations, i.e., "as the result of an accident, 
 or attended with unnatural or suspicious cir- 
 cumstances," in which cases a board of inquest 
 must be convened. (File 13673-1587, Apr. 22, 
 1912.) 
 
 The Instructions for Medical Officers, U. S. 
 Navy, 1909, pages 109, 110, required that a post- 
 mortem examination be made "in every case 
 of death" occiuring in the Navy, whether nec- 
 essary to determine cause of death or not. 
 These instructions, which were incorporated 
 in the Navy Regulations, 1909, by article 1143 
 of said Regulations, are too broad. A post- 
 mortem examination should be required only 
 in eases of death occurring under circumstances 
 which afford a reasonable necessity for the 
 performance of an autopsy. (File 13673-1587, 
 Apr. 22, 1912 — The instructions mentioned 
 were modified in accordance with the foregoing, 
 in Manual for Medical Department, U. S. Navy, 
 par. 2443, incorporated in the Navy Regula- 
 tions, 1913, by art. R-4562; see also art. 964, 
 Navy Regs., 1909, now art. R-2963, Navy 
 Regs., 1913.) 
 
 As to force and effect of Navy Regulations, 
 see note to section 161, Revised Statutes; as to 
 responsibility of naval officers for illegal acts, see 
 
 cases noted under Constitution, Article I, sec- 
 tion 8, clause 13; as to right of coroners to hold 
 inquests on naval reservations, see note to sec- 
 tion 355, Revised Statutes. 
 
 Reports by medical officers of the Navy 
 to State authorities can not be required in 
 cases of communicable diseases occurring in 
 naval reservations, as the State laws do not 
 operate within such places under the jurisdic- 
 tion of the Federal Government. (File 14560- 
 174, Apr. 19, 1916. See also file 4778-95, 
 Dec. ], 1916, 7657^58, July 27, 1917, and 7657- 
 458; 1, Dec. 13, 1917; and see note to sec. 355, 
 R. S.) 
 
 Medical records confidential. — See notes 
 to section 161, Revised Statutes, under "II. 
 Custody of Property and Records" ; section 418, 
 Revised Statutes, under "Records of depart- 
 ment"; and section 871, Revised Statutes, 
 under "Copies of records." 
 
 Medical officers serving with the 
 Army. — "Officers and enlisted men of the Med- 
 ical Department of the Navj^, serving with a body 
 of marines detached for service with the Army 
 in accordance with the provisions of section 
 sixteen hundred and twenty-one of the Revised 
 Statutes, shall, while so serving, be subject to 
 the rules and articles of war prescribed for the 
 government of the Army in the same manner 
 as the officers and men of the Marine Corps 
 while so serving." (Act Aug. 29, 1916, 36 
 Stat., 573). 
 
 Sec. 1369. [Medical Corps ; appointments in, how made.] AU appointments 
 in the Medical Corps shall be made by the President, by and with the advice 
 and consent of the Senate.— (21 April, 1806, c. 35, s. 3, v. 2, p. 390. 16 April, 
 1814, c. 58, s. 5, V. 3, p. 125. 24 May, 1828, c. 121, s. 3, v. 4, p. 313.) 
 
 As to appointment of officers in general, see 
 note to Constitution, Article II, section 2, 
 clause 2. 
 
 Acting assistant siu-geons may be appointed by 
 the President (act May 4, 1898, 30 Stat., 
 380) ; or in time of war by the Secretary of 
 the Navy (sec. 1411, R. S., as amended by 
 act Feb. 15, 1879, sec. 2, 20 Stat., 295.) 
 
 Appointments in the Naval Reserve Force, 
 to commissioned grades, shall be made by 
 the President alone, and to warrant grades 
 shall be made by the Secretary of the Navy. 
 (Act Aug. 29, 1916, 39 Stat., 587.) 
 
 Appointments in the Dental Corps of the Navy 
 are made by the President, by and with the 
 advice and consent of the Senate. (Act 
 July 1, 1918, 40 Stat., 708, superseding 
 act Aug. 29, 1916, 39 Stat., 573, which 
 superseded act Aug. 22, 1912, 37 Stat., 
 345.) 
 
 Appointments of temporary commissioned 
 officers during the war with Germany were 
 to be made by the President, by and with 
 the advice and consent of the Senate. 
 (Act May 22, 1917, sec. 12, 40 Stat., 87). 
 
 Nurses (female) are appointed by the Surgeon 
 General with the approval of the Secretary 
 of the Navy; except the superintendent of 
 the Nurse Corps, who is appointed by the 
 Secretary of the Navy. (Act ]\Iay 13, 1908, 
 35 Stat., 146.) 
 
 Passed assistant surgeons are appointed by the 
 President, by and with the ad%dce and 
 
 consent of the Senate. (See note to sec. 
 1368, R. S.) 
 Pharmacists in the Hospital Corps are to be 
 appointed by the President (act Aug. 29, 
 1916, 39 Stat., 572, amending act June 17, 
 1898, sec. 1, 30 Stat., 474). Chief phar- 
 macists in the Hospital Corps are to be 
 appointed by the President, by and with 
 the advice and consent of the Senate. 
 (Act Aug. 22, 1912, 37 Stat., 345; amended 
 by act Aug. 29, 1916, 39 Stat., 572.) 
 Promotion of medical officers — see note to 
 
 section 1371, Revised Statutes. 
 Rank of officers of the Navy shall not be 
 changed, "except in accordance with the 
 provisions of existing law, and by and with 
 the advice and consent of the Senate." 
 (Sec. 1506, R. S., as amended by act June 
 17, 1878, 20 Stat., 143.) 
 Recess appointments, when Senate not in ses- 
 sion — see note to Constitution, Article III 
 section 2, clause 3. 
 The Secretary of the Navy was authorized to 
 make "temporary appointments as warrant 
 officers of the Navy" by act May 22, 1917, 
 section 5 (40 Stat., 85). 
 Recess appointment not accepted. — A 
 recess commission issued to a candidate who 
 had qualified for appointment as assistant 
 surgeon, which, however, was not accepted 
 and was therefore never of any practical effect, 
 should not be accepted after the appointment 
 has been confirmed by the Senate, but should 
 
 461 
 
Sec. 1370. 
 
 Ft. 2. REVISED STATUTES. 
 
 The Navy. 
 
 bo disregarded and a permanent commission 
 issued in the usual manner. (File 8622-2, Feb. 
 10, 1908.) 
 
 An examination of statutes relating to 
 appointments in the Navy, as well as 
 appointments in the Army, indicates that 
 Congress frequently discriminates between 
 appointments to be made by the President 
 alone, and appointments to be made by the 
 President by and vdih the advice and consent 
 of the Senate. For example, section 13G9, 
 Re\'i8ed Statutes, provides that all appoint- 
 ments in the Medical Corps shall be made by 
 the President, by and with the ad\dce and 
 consent of the Senate; section 1378 contains a 
 similar pro^'ision with reference to appoint- 
 ments in the Pay Corps; section 1394 provides 
 in a similar manner for the appointment of 
 cadet engineers as second assistant engineers 
 [now repealed]; section 1395 contains a similar 
 provision as to chaplains in the Navy; section 
 1382 empowers the President alone to appoint 
 a paymaster of the fleet; section 1393 author- 
 izes the President to appoint an engineer of the 
 fleet; section 1403 authorizes cadet engineers of 
 
 certain merit to be immediately appointed as 
 assistant naval constructors [now amended]; 
 section 1405 authorizes the President to appoint 
 as many boatswains, guimers, eailmakers, and 
 carpenters as may in liis opinion be necessary 
 and proper; section 1111 authorizes the Secre- 
 tary of the Navy to appoint acting assistant 
 surgeons for temporary service; section 1414 
 authorizes the Secretary of the Navy to ap- 
 point storekeepers on foreign stations. WTiere 
 the statute pro^ides for the appointment of an 
 officer by the President, without reqidring the 
 consent of the Senate, such consent is unneces- 
 sary, and the President may make such appoint- 
 ment without submitting the same to the Sen- 
 ate for confirmation. In the latter case the 
 commission may be signed by the Secretary of 
 the Navy as the act of the President. (22 Op. 
 Atty. Gen., 82; for other examples of cases in 
 which the President has been authorized to 
 appoint officers of the Navy without consent 
 of the Senate, see note to Constitution, Art. 
 II, sec. 2, clause 2, under "II. Constitutional 
 Power of Appointment.") 
 
 Sec. 1370. [Medical Corps ; qualifications for assistant surgeons.] No person 
 shall be appointed assistant surgeon mitil he has been examined and approved 
 by a board of naval surgeons, designated by the Secretary of the Navy, nor 
 who is under twenty-one or over tliirty years of age, inclusive. 
 
 This section was expressly amended to read 
 as above by a clause in the naval appro- 
 priation act of May 4, 1898 (30 Stat., 380). 
 As originally enacted it provided as fol- 
 lows: "Sec. 1370. No person shall be 
 appointed assistant surgeon until he has 
 been examined and approved by a board 
 of naval surgeons, designated by the Sec- 
 retary^ of the Navy; nor who is under 
 twenty-one or over twenty-six years of 
 age."— (24 May, 1828, c. 121, s. 1, v. 4, 
 p. 313. 3 Mar., 1871, c. 117, s. 5, v. 16, p. 536.) 
 Amendment to this section, as reenacted by the 
 act of May 4, 1898, was made bv the act 
 of August 29, 1916 (39 Stat., 577), which 
 provided "that hereafter appointees to the 
 grade of assistant surgeon shall be between 
 the ages of twenty-one and thirty-two at 
 the time of appointment;" and by act of 
 March 4, 1917 (39 Stat., 1171), as to boards 
 being convened by officers on foreign 
 stations. 
 Qualifications for appointment as dental sur- 
 geon in the Dental Corps — see act of August 
 29, 1916 (39 Stat., 573). 
 Qualifications for appointment in the Naval 
 Reserve Force are prescribed by the act 
 of August 29, 1916 (39 Stat., 587), as 
 amended. 
 Special age limits were prescribed for ofl5cers 
 appointed to the Regular Navy, by transfer 
 from the temporary Navy and Naval 
 Reserve Force, by act approved June 4, 
 1920, section 5 (41 Stat., 835). 
 Appointments to temporary service. — 
 The above law, as its language imports, was 
 to guard against the appointment of incom- 
 petent surgeons in the Navy, and evidently 
 applies to appointments to be made in the 
 
 regular or permanent service, as contradis- 
 tinguished from appointments in the temporary 
 service; for in the next succeeding clause or 
 paragraph of the act of May 4, 1898 (amending 
 section 1370), there is a pro\dsion authorizing 
 the President "to appoint for temporary 
 service twenty-five acting assistant surgeons, 
 who shall have the relative rank and compen- 
 sation of assistant surgeons" [and containing 
 no restrictions as to the qualifications necessary 
 for such temporary appointments]. The Con- 
 gress by their legislation have recognized the 
 distinction between officers in the permanent 
 and temporary service in the Navy. (Taylor 
 V. U. S. 38 Ct. Cls., 155, 161; see also file 27231- 
 51:5, July 10, 1915; and see note to sec. 1411, 
 
 The act of May 22, 1917 (40 Stat., 84), pro- 
 viding for temporary appointments and pro- 
 motions Ln the Navy, does not require compli- 
 ance with statutory provisions governing per- 
 manent promotions. The decision of the Court 
 of Claims in Taylor v. U. S. (38 Ct. Cls., 155), 
 [noted above], is directly in point in connection 
 with the administration of the act of May 22, 
 1917. (File 28687-22, June 14, 1917; see also 
 Op. Atty. Gen., Oct. 20, 1917, file 28550-123:4.) 
 
 Acting assistant surgeons may be appointed 
 for temporary service after such examination 
 as the Secretary of the Navy may prescribe. 
 (Art. R-3305, Navy Regs., 1913; see note to sec. 
 1411, R. S.) 
 
 Application of statutory requirements 
 to appointments under subsequent laws. — 
 "When a general law prescribes what persons 
 may be appointed to any class or kind of office 
 or place, the time or manner of their appoint- 
 ment, the tenure of their office, their qualifi- 
 cations or the test of their qualifications and 
 
 462 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1370. 
 
 fitness, any appointment of that kind there- 
 after authorized, must, unless otherwise pro- 
 vided, be made with reference to and in con- 
 formity with the requirements of such general 
 law. I think it a mistake to suppose that, in 
 order to bring such appointments within the 
 pur\-iew of the general law, it would be neces- 
 sary to state specifically in the act authorizing 
 them, that they are to be made as thus pre- 
 scribed, or as provided by law, or that such idea 
 be expressed in any form. On the contrary, 
 I think that in order to exempt such appoint- 
 ments from the operation of the general law, 
 a specific exemption therefrom would be re- 
 quired. Indeed, as a general rule, it may be 
 said that in every statute authorizing or requir- 
 ing a certain act, there is implied, as if there 
 written, the direction that such act shall be 
 done with reference to and in conformity with 
 existing laws on the subject, if there are any. 
 All laws in pari materia should be construed to- 
 gether, and so as to give effect to all and to not 
 conflict with each other." (25 Op. Attv. Gen., 
 341.) 
 
 General requirements for appoint- 
 ment. — No person shall be appointed to any 
 office in the Navy unless he is a citizen of the 
 United States, nor until he shall have passed 
 aphysical, amental, and a prof essional examina- 
 tion. The physical examination shall pre- 
 cede the mental and professional, and if a 
 candidate be physically unfit he shall not be 
 examined otherwise. (Art. R-3301, Navy 
 Regs., 1913; see note to sec. 1428, R. S., as to 
 citizenship of officers of the Na\'^^) 
 
 "Board of naval surgeons." — ^The word 
 "surgeons" in this section is construed to 
 mean "medical officers," and not as restrict- 
 ing the membership of the examining board to 
 officers in the grade of surgeon. (See Art. R- 
 3305, Navy Regs., 1913, providing that a 
 candidate for assistant surgeon must be 
 examined physically, morally, mentally, and 
 professionally by a board of "medical offi- 
 cers"; see also note to sec. 1493, R. S. As to 
 the grades of officers constituting the Medical 
 Corps, see note to sec. 1368, R. S.) 
 
 Age of candidates for appointment. — 
 See notes to section 1379, Re\'ised Statutes, as 
 to age of candidates for appointment as assistant 
 pajonasters; section 1517, Revised Statutes, as 
 to age of candidates for appointment as mid- 
 shipman at the Naval Academy; and act March 
 3, 1899, section 14 (30 Stat., 1007), as to age of 
 candidates for appointment as warrant machin- 
 ists, now designated as "machinists." 
 
 Where a candidate for assistant surgeon had 
 not passed his thirtieth birthday when con- 
 firmed by the Senate, the statutory require- 
 ment was fulfilled, and he can legally be com- 
 mis-sioned and accept the appointment after 
 passing said age. (File 8622-2, Feb. 10, 1908; 
 see also note to Constitution, Art. II, sec. 2, 
 clause 2, imder "VI. \\Tiat Constitutes Ap- 
 pointment.") 
 
 In the case noted in the preceding paragraph 
 it was assumed that the words "over thirty 
 years of age" excluded candidates who had 
 passed their thirtieth birthday, but it was held 
 that the particular candidate in question, hav- 
 ing been under thirty years of age at the time he 
 was nominated by the President and confirmed 
 
 by the Senate, was eligible under the law, and 
 might legally accept his appointment after 
 passing his thirtieth birthday, the acceptance 
 of the office by the appointee being distinct 
 from the appointment and not necessary to 
 render the appointment complete. In other 
 words, that the candidate in question was not 
 over thirty years of age when "appointed " and 
 might, therefore, accept such appointment 
 after passing his thirtieth birthday. (File 
 27223-12:1, Jan. 27, 1915.) 
 
 An act of July 25, 1861, section 3, relating to 
 an increase in the Marine Corps, provided ' ' that 
 the appointment of commissioned officers to be 
 made under the provisions of this act shall be of 
 persons between the ages of twenty and twenty- 
 five years; and shall be subjected, under the 
 direction of the Secretary of the 'Rz.xy to an ex- 
 amination as to their qualifications for the serv- 
 ice to which they are to be appointed . " A can- 
 didate attained the age of twenty-five years on 
 the 24th day of April; he had been examined 
 and foimd qualified on the 22d of April ; on the 
 23d he was nominated to the Senate; his nomi- 
 nation was confirmed on the 14th of June follow- 
 ing: Held, that the President may lawfully 
 issue a commission to the candidate as second 
 Lieutenant in the Marine Corps under the clr- 
 cumstan ces of his case as above-stated . ( 10 Op . 
 Atty. Gen., 308.) 
 
 In the case noted in the preceding paragraph, 
 the Attorney General stated: "I need not dis- 
 cuss the significance of the word appointment, 
 for it has various meanings and the true sense 
 can only be known by a study of the subject 
 matter and the context in which it is used. 
 This case does not present the question, at what 
 time an officer is so authentically certified as to 
 be known and respected in his official relations; 
 nor the question, when he is so inducted into his 
 office as to be entitled to be paid for his official 
 services; nor yet the question, at what time the 
 officer has a legal right to receive the final e\-i- 
 dence of his appointment, to wit, the commis- 
 sion." The question applies solely to the 
 eligibility of the candidate; that is, had the 
 President lawful power to choose him to be a 
 second Lieutenant of Marines at the time when 
 he did actually choose him and name him to the 
 Senate for office, asking the Senate to consent to 
 and ratify his act. ' ' That is the question in this 
 case, and I am clearly of the opinion that 
 Stoddard was eUgible and that the President 
 had lawful power to appoint him, subject only 
 to the consent of the Senate. In such case the 
 Senate has no power to appoint but the power 
 only to arrest and prevent the appointment by 
 the President. The action by the Senate upon 
 the President's nomination is always and neces- 
 sarily relative, for all that it can do is to reject or 
 affirm what the President has already done. I 
 am of opinion that it is lawful and right to give 
 Mr. Stoddard his commission." (10 Op. Atty. 
 Gen., 308.) 
 
 An act of July 14, 1862, section 7, prescribed 
 the age of chaplains in the Nax-y. Under that 
 act it was held that the President could not 
 appoint a person to that office above the age 
 hmit of 35 years, although before the passage of 
 that act the President had instructed the Sec- 
 retary of the Na\'y to prepare a nomination of 
 the person in question to the Senate for the 
 
 463 
 
Sec. 1371. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 ofllto which nommation had not, however, 
 actually been made. If the nomination had 
 actually been made by the President prior to 
 the act of July 14, 1862, the appointment mifj;ht 
 lawfully have been made after confirmation by 
 the Senate, whether such action of the Senate 
 had been taken before or after the date of said 
 act, this being in accordance vnth. the prior 
 
 opinion (10 Op. Atty. Gen., 308) holding valid 
 the appointment of a lieutenant of Marines who 
 was of lawful age when nominated, but over age 
 when confirmed. (10 Op. Atty. Gen., 324.) 
 
 Date of appointment. — See note to section 
 1371, below, under "Length of service prior to 
 promotion." 
 
 Sec. 1371. [Medical Corps ; promotions in. Superseded.] 
 
 Tliis section provided as follows: 
 
 "Sec. 1371. No person shall be appointed 
 surgeon until he has served as an assistant sur- 
 geon at least two years, on board a public vessel 
 of the United States at sea, nor until he has 
 been examined and approved for such appoint- 
 ment, by a board of naval surgeons, designated 
 bv the Secretary of the Navy."— (24 May, 1828, 
 c. 121, v. 4, p. 313.) 
 
 It was superseded by the following pro- 
 vision in the act of February 13, 1897 (29 Stat. 
 526): "Hereafter assistant surgeons shall be 
 regularly promoted and commissioned as passed 
 assistant surgeons, and passed assistant siu-geons 
 as surgeons, subject to such examinations as 
 may be prescribed by the Secretary of the 
 Na\T." 
 
 Examinations were discontinued for pro- 
 motion of staff officers in grade by act of May 22, 
 1917, section 20 (40 Stat., 89), which act and 
 section also reenacted a pro\'ision in the act of 
 March 4, 1917 (39 Stat., 1182), requiring exami- 
 nations of staff officers for advancement in 
 rank. 
 
 As to status of passed assistant sur- 
 geons, see note to section 1368, Revised 
 Statutes. 
 
 Assistant surgeons are promoted to 
 passed assistant surgeons after three years' serv- 
 ice. Tliis practice was originally in accordance 
 with the provision of section 1556, Revised Stat- 
 utes, that "assistant surgeons of three years serv- 
 ice, who have been found qualified for promo- 
 tion by a medical board of examiners," shall 
 be allowed "the pay of passed assistant sur- 
 geons." The practice has continued, although 
 not now specifically provided for by law, sec- 
 tion 1556, Re\dsed Statutes, with reference to 
 the pay of assistant surgeons, being no longer in 
 force. (File 26280-68, Apr. 12, 1916.) 
 
 Assistant surgeons on original appointment 
 have the rank of lieutenant (junior grade). 
 (Act Aug. 29, 1916, 39 Stat., 577.) Theyare 
 entitled to advancement to the rank of lieu- 
 tenant with the line officer with whom or next 
 after whom they take precedence. (Act Aug. 
 29, 191G, 39 Stat., 576.) Lieutenants (junior 
 grade) of the line are entitled to promotion to 
 Lieutenant after not less than three years' serv- 
 ice in grade (act Aug. 29, 1916, 39 Stat., 576), 
 except that durin» the existing war this re- 
 quirement as to length of service shall not 
 applv to temporary promotions (act May 22, 
 1917; sec. 5, 40 Stat!, 86.) The Secretary of the 
 NaAy has discretion to provide that all assist- 
 ant surgeons may be promoted to passed as- 
 sistant surgeons at the same time that they 
 are advanced to the rank of lieutenant. (File 
 27223-37, Apr. G, 1918.) 
 
 Passed assistant surgeons are promoted 
 to surgeons, surgeons are promoted to medical 
 
 inspectors, and medical inspectors are pro- 
 moted to medical directors, all by seniority, to 
 fill vacancies, in accordance with section 1480, 
 Revised Statutes, and the "estabUshed rules of 
 the service" (see sec. 1458, R. S.), subject to ex- 
 amination, as required by sections 1493 and 
 1496, Revised Statutes, and the act of Febru- 
 ary 13, 1897, above quoted. {In this connection 
 see note to sec. 1372, R. S.) As to constitu- 
 tionality of laws requiring promotion by sen- 
 iority, see notes to sections 1458 and 1480, 
 Revised Statutes. 
 
 Advancement to the ranks of commander, 
 captain, and rear admiral in the Staff Corps of 
 the Navy are to be made by selection upon 
 recommendation of a board of officers of the 
 coi-ps concerned. (Act July X, 1918, 40 Stat., 
 718.) 
 
 Subject to the limitations contained in laws 
 prior to August 29, 1916, as to the number of 
 officers in certain lower grades of the Medical 
 Corps (see note to sec. 1368, R. S.), the Secre- 
 tary of the Navy has discretion to provide that 
 all passed assistant surgeons shall be promoted 
 to surgeons at the same time that they are ad- 
 vanced to the rank of lieutenant commander 
 (File 27223-37, Apr. 6. 1918.) 
 
 Pay on promotion. — All officers of the 
 Navy advanced in grade or rank pursuant to 
 law shall be allowed the pay and allowances of 
 the higher grade or rank from the dates stated 
 in their commissions. (Act Mar. 4, 1913, 37, 
 Stat., 892; see sec. 1561, R. S.) 
 
 Suspension from promotion of officers 
 who fail to qualify when examined is required 
 by section 1505, Revised Statutes, as amended 
 by act of March 11, 1912 (37 Stat., 73). 
 
 Length of service prior to promotion. — 
 The three years' service of assistant surgeons 
 prior to promotion may lawfully be regarded 
 as commencing on the date of their appoint- 
 ment rather than on the date of actual entry 
 upon the duties of the office. "In support of 
 this view it is urged that the uniform practice 
 of the Navy Department, extending through 
 many years, has been to have regard to the date 
 of appointment rather than the other date as 
 fixing the beginning of the required three 
 years' ser\dce, a practice which is said to rest 
 in the custom in the Navy of advancing by 
 seniority. As illustrating the reason of the 
 practice it is said that wnen several men are 
 examined for appointment as assistant surgeon 
 the respective numbers assigned to them upon 
 qualifying professionally are based upon the 
 order of proficiency shown by the examination. 
 If the circumstance of location nearer Wash- 
 ington, which would enable one applicant to 
 execute his oath of office earlier than could one 
 who was not so conveniently located, should 
 be gi-\'en effect, then it could follow that the 
 
 464 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1372. 
 
 one entitled by his examination to the first 
 number might have to fall below the others, 
 and this for no other reason than that the one 
 entitled to the higher position in the grade 
 could not get his oath of office executed 
 as soon as one more conveniently located 
 * * *. We find no statute which prohibits 
 said practice, and administrative action is 
 entitled to consideration. Ross's case, 283 
 U. S., 530, 538. It does not appear that any 
 positive law has been disregarded, nor does it 
 appear that the four or five days' difference 
 in the dates was caused by any fault or negli- 
 gence of the plaintiff or resulted from any other 
 cause than a supposed orderly practice long 
 continued. As stated by the Judge Advocate 
 General in re John A. Nelson, April 12, 1916, 
 'The only argument in favor of the legality of 
 the present practice is that it is expedient and 
 has so long continued that it may be regarded 
 as having been known to and acquiesced in 
 by Congress.'" (Toulon v. U. S., 52 Ct. Cls., 
 333). 
 
 Advancement in rank. — By act of August 
 29, 1916 (39 Stat., 576), it was provided that 
 
 "Ofiicers of the lower grades of the Medical 
 Corps, Pay Corps, Construction Corps, and 
 Corps of Civil Engineers shall be advanced in 
 rank up to and including the rank of lieutenant 
 commander with the officers of the line with 
 whom or next after whom they take precedence 
 under existing law: Provided, That all assistant 
 surgeons shall from date of their original ap- 
 pointment take rank and precedence with 
 lieutenants (junior grade)." 
 
 By act of May 22, 1917, section 17 (40 Stat., 
 89), it was enacted that the above clause in the 
 act of August 29, 1916, shall not operate "to 
 disturb the relative position of ofiicers in the 
 Medical Corps with reference to precedence or 
 promotion, but all such officers otherwise 
 
 Sualified shall be advanced in rank with or 
 liead of ofiicers in said corps who were their 
 juniors on the date of said act." 
 
 By act of July 1, 1918 (40 Stat., 718), it was 
 provided that advancement to the ranks of 
 commander, captain, and rear admiral in the 
 Staff Corps of the Navy shall be made by se- 
 lection in the manner therein prescribed. 
 See note to section 1474, Revised Statutes. 
 
 Sec. 1372. [Medical Corps; rank of assistant surgeons in case of delayed 
 examination. Obsolete.] 
 
 This section provided as follows: 
 
 '"Sec. 1372. WTien any assistant sui-geon 
 was absent from the United States, on duty, 
 at the time when others of his date were ex- 
 amined, he shall, if not rejected at a subsequent 
 examination, be entitled to the same rank with 
 them; and if, from any cause, his relative rank 
 can not be assigned to him, he shall retain his 
 original position on the register." — (3 Mar., 
 1835, c. 27, s. 1, V. 4, p. 757.) 
 
 It was rendered obsolete by the abolish- 
 ment of competitive examinations in accord- 
 ance with the Attorney General's opinion 
 noted below. Also, examinations for promo- 
 tion of assistant surgeons to higher grades have 
 now been discontinued, in accordance with the 
 act of May 22, 1917, noted above under section 
 
 1371, and the advancement in rank of staff 
 officers is regulated by the acts of August 29, 
 1916, and July 1, 1918, noted above, under sec- 
 tion 1371. 
 
 Promotion by seniority and not competi- 
 tive examination. — The practice of the Navy 
 Department, requiring competitive examina- 
 tions to determine the relative position of med- 
 ical officers of the Navy preparatory to pro- 
 motion to the grade of surgeon, which originated 
 prior to the act of May 24, 1828 [now sections 
 1370 and 1371, Revised Statutes], was recog- 
 nized and confirmed by a clause in the act of 
 Congress approved March 3, 1835, which is 
 embodied in the Re\-ised Statutes as section 
 
 1372. (17 Op. Atty. Gen., 48.) 
 
 The system of competitive examinations to 
 determine the relative merit of assistant sur- 
 geons preliminary to promotion, and thus to 
 define their rank by seniority, has, under author- 
 ity of section 1372, been continued to the pres- 
 ent time [February 25, 1881], and the imiiorm 
 practice of the Na\'y Department has been to 
 assign to the members of each class of assistant 
 surgeons examuied and found qualified for 
 promotion, positions in accordance with their 
 
 relative standing as determined and reported 
 by the board of examiners. (17 Op. Atty. 
 Gen., 48.) 
 
 However, the custom of requiring competi- 
 tive examination of assistant surgeons and 
 assigning them positions in the Navy Register 
 in order of relative merit as ascertained and 
 reported by the board of examiners, is not cor- 
 rect under the present law. A clause in the act 
 of March 3, 1871 (16 Stat., 536), contemplated 
 that promotion in the staff corps, including the 
 Medical Corps, should be by seniority, and not 
 by competitive examination. This clause did 
 not find its way into the first edition of the 
 Revised Statutes. It was reenacted by act of 
 February 27, 1877 (19 Stat., 249), and as so reen- 
 acted was included in the second edition of the 
 Revised Statutes as section 1480. The effect of 
 it is to adopt the rule of seniority in regard to 
 promotions from one grade to another in the Staff 
 Corps, including, among others, the Medical 
 Corps. (17 Op. Atty. Gen., 48.) 
 
 The rule that officers shall be assigned rank 
 in the order of merit as determined by competi- 
 tive examinations was never prescribed by law, 
 but was a usage that had grown up in the Navy 
 Department. The propriety of that usage was, 
 perhaps, recognized by the act of 1835, later 
 embodied in section 1372, Revised Statutes. 
 However, that act was at most a recognition of 
 the previous practice in an impUed way, and 
 not by a very clear implication. The Secretary 
 of the Navy was not required by law to assign 
 relative rank according to the results of com- 
 petitive examinations, but the matter was 
 within his discretion. The Secretary had a 
 right to maintain this as a rule, or to rescind it 
 the moment after it was carried into execution. 
 (U. S. ex rel. Hall v. Whitney, 5 Mackey (D. C), 
 370.) 
 
 Following the Attorney General's opinion 
 above noted, the Secretary did rescind the pre- 
 vious rule of assigning relative rank by com- 
 
 465 
 
Sec. 1376. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 petitive examinationg. WTiether he thought 
 that the act of 1877 required that officers should 
 rank according to seniority alone, or whatever 
 were the grounds of liis action, it wa*. within the 
 Bcope of his authority. Accordingly, where an 
 assistant sui^eon was assigned relative rank 
 according to the previous nile, as the result of a 
 competitive examination, and later, following 
 the Attorney General's opinion, was reduced 
 from the rank which he had already been 
 assigned and given a lower position to which his 
 seniority entitled him, held, that the court 
 could not by mandamus proceedings compel 
 
 the Secretary of the Navy to restore him to his 
 former position in the N'avy Register. (U. S. 
 ex rel. Hall i;.Whitney,5Mackey (D.C.), 370.) 
 "It is within the authority of the Secretary 
 of the Navy to adopt a rule by which the rela- 
 tive rank of officers of the Navy shall be regu- 
 lated, and afterwards to rescind such rule and 
 adopt another, although the latter rule may 
 have the effect of placing an oflicer in a lower 
 relative rank than that assigned him under the 
 provisions of the pre\dou3 rule. " (U.S. ex rel. 
 nail V. \\liitney, 5 Mackey (D. C), 370.) 
 
 Sec. 1373. [Medical Corps; surgeon of the fleet.] The President may 
 designate among the surgeons in the service, and appoint to every fleet or 
 squadron an experienced and intelligent surgeon, who shall be denominated 
 "surgeon of the fleet," and shall be surgeon of the flag-ship. — (24 May, 1828. 
 c. 121, s. 2, V. 4, p. 313.) 
 
 Pay of fleet surgeons was fixed at $4,400 per 
 
 annum by section 1556, Revised Statutes. 
 
 The word "surgeons" as used in this 
 
 section has been construed to mean "medical 
 
 officers, " and not as restricting details for this 
 
 duty to officers in the grade of "surgeon." (See 
 Art. R-1826 (2), Navy Regs., 1913.) 
 
 See note to sections 1382 and 1393, 
 Revised Statutes, for cases relating to 
 appointment and pay of fleet officers. 
 
 Sec. 1374. [Medical Corps; duties of surgeon of the fleet.] The surgeon 
 of the fleet shall, in addition to his duties as surgeon of the flag-ship, examine 
 and approve all requisitions for medical and hospital stores for the squadron 
 or fleet, and inspect their quaUty. He shall, in diflicult cases, consult with 
 the surgeons of the several ships, and he shall make, and transmit to the Navy 
 Department, records of the character and treatment of diseases in the squad- 
 ron or fleet.— (24 May, 1828, c. 121, s. 2, v. 4, p. 313.) 
 
 Sec. 1375. [Medical Corps; assistant to Bureau of Medicine and Surgery.] 
 A surgeon, assistant surgeon, or passed assistant surgeon, may be detailed as 
 assistant to the Bureau of Medicine and Surgery, [who shaU receive the highest 
 shore pay of his grade.]— (16 July, 1862, c. 183, s. 18, v. 12, p. 587. 27 Feh., 
 1877, c. 69, V. 19, p. 244.) 
 
 See note to section 421, Revised Statutes, for 
 
 cases relating to assistants to chiefs of bureaus 
 
 in the Navy Department. 
 
 The amendment to this section, con- 
 cerning the pay of officers detailed thereunder 
 as assistants to the Bureau of Medicine and 
 Surgery, contained language which clearly 
 gave it a retrospective character. (15 Op. 
 Atty. Gen., 259.) 
 
 Pay of assistant. — Both the Navy and 
 Treasury Departments have in practice uni- 
 
 formly interpreted tliis law as entitling surgeons 
 detailed as assistants to the Bureau of Medicine 
 and Surgery to the shore pay given to a siirgeon 
 after 20 years' service, although they may 
 not have served as surgeons over 5 years; and 
 these officers have always been so paid. This 
 shows that the word "grade" is intended to 
 give the officer the liighest pay of liis "rank. " 
 (Schuetze v. U. S., 24 Ct. Cls., 299; as to differ- 
 ence between "grade" and "rank," see note 
 to sec. 1362, R. S.) 
 
 Sec. 1376. [Supply Corps ; organization of. Superseded.] 
 
 This section provided as follows: 
 "Sec. 1376. The active list of the Pay Corps 
 of the Navy shall consist of thirteen pay direc- 
 tors, thirteen pay inspectors, fifty paymasters, 
 thirty passed assistant paymasters, and twenty 
 assistant paymasters." — (15 July, 1870, c .295, 
 s. 11, V. 16, p. 334. 3 Mar., 1871, c. 117, s. 6, 
 V. 16, p. 5.36.) 
 
 It was superseded by a clause in the naval 
 appropriation act of August 5, 1882 (22 Stat. 
 285), which provided that "the active list of 
 
 the Pay Corps of the Navy shall hereafter con- 
 sist of thirteen pay directors, thirteen pay in- 
 spectors, forty paymasters, twenty passed 
 assistant paymasters, and ten assistant pay- 
 masters." 
 
 The number of officers was increased 
 by act of March 3, 1899 (30 Stat., 1038), which 
 provided that ' ' the active list of passed assistant 
 and assistant paymasters of the Pay Corps shall 
 hereafter consist of thirty and forty, respec- 
 tively." 
 
 466 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1376. 
 
 A further increase was made by act of 
 March 3, 1903 (32 Stat., 1197), which provided 
 that "the grades of the active list of the Navy 
 hereinafter designated shall be so increased that 
 there shall be * * * two additional i)ay in- 
 spectors, iu all fifteen; thirty-six additional 
 paymasters, in all seventy-six j twenty-six addi- 
 tional passed assistant and assistant paymasters, 
 in all ninety-six; * * * not more_ than 
 twenty assistant paymasters, * * * in ad- 
 dition to those necessary to fill vacancies in said 
 grades, shall be appointed in any one calendar 
 year. ' ' 
 
 The Pay Corps was again increased by 
 act of August 22, 1912 (37 Stat., 328), which pro- 
 vided that "the grades of the active list of the 
 Pay Corps of the Navy are hereby increased by 
 ten additional paymasters, in all eighty-six 
 paymasters, and by twenty additional passed 
 assistant and assistant paymasters, in all one 
 hundred and sixteen passed assistant and assist- 
 ant paymasters: Provided, That the total in- 
 crease of the Pay Corps of the Navy shall not 
 exceed twenty during the first fiscal year." 
 
 The number of oflB.cers was again in- 
 creased by act of August 29, 1916 (39 Stat., 
 576), which provided that "the total author- 
 ized number of commissioned officers of the 
 active list of the following staff corps, exclusive 
 of commissioned warrant officers, shall be based 
 on percentages of the total number of com- 
 missioned officers of the active list of the line 
 of the Navy, as follows: Pay Corps, twelve 
 per centum * * *." 
 
 The same act (39 Stat., 577) provided that 
 "the total number of commissioned officers of 
 the active list of the following mentioned staff 
 corps at any one time, exclusive of commis- 
 sioned warrant officers, shall be distributed in 
 the various grades of the respective corps as 
 follows: * * * Pay Corps: One-half pay di- 
 rectors with the rank of rear admiral to four pay 
 directors with the rank of captain, to eight pay 
 inspectors with the rank of commander, to 
 eighty-seven and one-half in the grades below 
 pay inspector. * * * "WTien there is an odd 
 number of officers in the grade or rank of rear 
 admiral in the line or in each corps, the lower 
 division thereof shall include the excess in num- 
 ber, except where there is but one. ^Vheneve^ 
 a final fraction occurs in computing the author- 
 ized number of any corps, grade, or rank in the 
 naval service, the nearest whole number shall 
 be regarded as the authorized number: Provided, 
 That at least one officer shall be allowed in 
 each grade or rank. For the purpose of deter- 
 mining the authorized number of officers in any 
 grade or rank of the line or of the staff corps, 
 there shall be excluded from consideration 
 those officers carried by law as additional num- 
 bers, including staff officers heretofore perma- 
 nently commissioned with the rank of rear 
 admiral, and nothing contained herein shall be 
 held to reduce below that heretofore authorized 
 by law the number of officers in any grade or 
 rank in the staff corps." 
 
 By act of June 4, 1920 (41 Stat., 834), it was 
 pro\'ided "that the number of commissioned 
 officers of the line, permanent, temporary, and 
 reserve on active duty shall not exceed 4 per 
 centum of the total authorized enlisted strength 
 of the Regular Navy, and the niunber of staff 
 
 officers on active duty of whatever kind shall 
 be in the same proportions as authorized by 
 existing law * * * That nothing herein 
 shall be construed as reducing the permanent 
 commissioned * * * strength of the Regu- 
 lar Navy as authorized by existing law." 
 
 The temporary appointment of addi- 
 tional oflB.cers during the period of the existing 
 war was authorized by the act of May 22, 1917, 
 section 4 (40 Stat., 85), as amended by act of 
 July 1, 1918 (40 Stat., 715), which also author- 
 ized temporary appointments and promotions to 
 fill, during the period of the war, the deficiency 
 existing prior to May 22, 1917, in the total num- 
 ber of commissioned officers authorized by the 
 act of August 29, 1916. 
 
 The desigfnation of the "Pay Corps" was 
 changed to "Supply Corps" by act of July 11, 
 1919 (41 Stat., 147). 
 
 "The number of passed assistant and 
 assistant paymasters in the Navy to be 
 appointed in each of the two grades under the 
 act of March 3, 1903 (32 Stat., 1197), not being 
 prescribed by that act, is necessarily left to 
 Executive discretion, to be controlled by the 
 general terms and regulations providing for the 
 advancement of officers in the naval service. 
 Nor is it required that the relative proportion 
 of officers in each of those grades shall remain 
 always the same, a change in the proportion 
 being within the discretion of the Executive, 
 unless controlled by general laws or regula- 
 tions." (26 Op. Atty. Gen., 511; see also 
 Williams v. U. S., 47 Ct. Cls., 316; Crapo v. 
 U. S.,50Ct. Cls., 337.) 
 
 While the total increase of 26 in the number 
 of assistant and passed assistant paymasters, 
 made by the act of March 3, 1903, may be 
 placed in the grade of passed assistant paymas- 
 ter, which was limited by the act of March 3, 
 1899, to 30, thereby increasing the total nurn- 
 ber of passed assistant paymasters to 56, this 
 ifumber can not be exceeded under the act of 
 March 3, 1903. That act did not have the 
 effect of also authorizing the transfer of the 40 
 assistant paymasters, prescribed by the act of 
 March 3, 1899, to the grade of passed assistant 
 paymaster, thereby increasing the latter grade 
 to 76, and leaving no officers in the grade of 
 assistantpayniaster. (File3022-7, Apr. 10,1908.) 
 The above interpretations of the act of March 
 3, 1903, were applied to the increase made by 
 the act of August 22, 1912, of "twenty addi- 
 tional passed assistant and assistant paymas- 
 ters," this total increase being placed in the 
 grade of passed assistant paymaster, thereby 
 increasing that grade to 76, and retaining in the 
 grade of assistant paymaster the 40 positions 
 authorized by the act of March 3, 1899. (File 
 1660-139, Bu. Nav.) 
 
 The act of August 29, _ 1916, authorizes 87* 
 per cent of the commissioned officers of the 
 Pay Corps in the grades below pay insj^ector 
 without fixing the number in each grade. In 
 other words, it authorizes an increase in the 
 number of officers allowed in the three grades 
 of paymaster, passed assistant pajonaster, and 
 assistant pajTuaster, combined, just as the acts 
 of March 3, 1903, and August 22, 1912, provided 
 increases in the grades of passed assistant pay- 
 master and assistant paymaster, without pro- 
 adding how the increases should be distributed. 
 
 467 
 
Sec. 1376. 
 
 Pt.J. REVISED STATUTES. 
 
 The Navy. 
 
 Accord ini,'ly. hchl. that the act of August 2!>, 
 lOK), should receive the same construction as 
 the previous acts, and that the distribution of 
 the increase among tlie grades below pay 
 inspector has been left to the executive dis- 
 cretion. Hence, S7i per cent of the increase 
 in the Pay Corps may be distributed among the 
 three lower grades in such proportions as may 
 best serve the interests of the Navy. This 
 would result in having at least 40 officers in 
 the grade of assistant ]iaymaster when the three 
 lower grades are full, the act of August 29, 191G, 
 not having the el'lect of repealing the act of 
 March 3, 1899, which fixed the number of assist- 
 ant paymasters at 40. In other words, although 
 additional officers, authorized from time to 
 time, may be distributed between the lower 
 grades of the Pay Corps where not otherwise 
 provided by Congress, the number of assistant 
 paymasters specifically authorized by previous 
 laws can not be distributed so as, for example, 
 to place in the grades of passed assistant pay- 
 master and pajTnaster the total number of pay 
 officers allowed below the grade of pay inspector 
 without retaining any oflicers in the grade of 
 assistant paymaster. " (File 27223-37, Mar. 20, 
 1918.) 
 
 See note to section 1380, Revised Statutes, re 
 promotion of assistant paymasters. 
 
 Acting officers. — See section 1381, Revised 
 Statutes, and note to section 1410, Revdsed 
 Statutes. 
 
 Clerks to officers of the Supply Corps. — 
 By naval appropriation act of March 3, 1915 
 (38 Stat., 942), three grades were established 
 of clerks to pay officers, viz, acting pay clerks, 
 appointed by the Secretary of the Navy; pay 
 clerks, warranted by the President; and chief 
 pay clerks, commissioned by the President by 
 and with the advice and consent of the Senate. 
 
 Special disbursing agents are authorized 
 to be employed by section 3614, Revised Stat- 
 utes. (30 Op. Atty. Gen., 132.) 
 
 Disbursing officers abroad are not to be 
 employed for naval service, under contract or 
 otherwise, unless they hold appointments con- 
 firmed by the Senate. (Sec. 1550, R. S.) 
 
 A naval reserve, composed of persons who 
 have been found qualified by examination for 
 commissions in any reserve or volunteer naval 
 force hereafter organized, other than the Naval 
 Militia, is authorized by act of February 16, 1914, 
 section 21 (38 Stat., 289); which act authorizes 
 the President, when exigency demands, to issue 
 commissions in tlie Regular Navy to persons 
 so qualified; and also authorizes him to com- 
 mission or warrant former officers who have 
 been honorably discharged from the Navy. 
 
 As to other auxiliaiy naval forces, see note 
 to section 13()3, Revised Statutes. 
 
 Number of officers not to be increased 
 without explicit legislation. — (See note to 
 sec. 1363, R. S.) 
 
 The Pay Corps consists of officers commis- 
 sioned by the President^ and clerks and others 
 who are not so commissioned do not belong to 
 the Pay Corps. This is obvious from the lan- 
 guage of section 1378, Revised Statutes (U. S. 
 V. Mouat, 124 U. S., 303.) 
 
 Duties of Supply Corps. — The number of 
 pay officers for the Navy is fixed by law, and 
 each must give bond for the faithful discharge of 
 
 his duties. They are prohibited from loaning 
 money to brother officers. With these excep- 
 tions there are no statutes prescribing their 
 duties or functions. These latter spring from 
 regulations issued from time to time by the 
 Secretary of the Na\'j^ pursuant to section 161, 
 Revised Statutes. Such regulations, when not 
 inconsistent with law, are binding upon the 
 Comptroller of the Treasury, and pay officers 
 are amenable to court-martial for violation 
 thereof. (30 Op. Atty. Gen., 376, 171 S. and A. 
 Memo., 3611.) 
 
 Decisions of Comptroller. — Disbursing 
 officers may apply for and obtain decision of the 
 Comptroller of the Treasury concerning legal- 
 ity of proposed payments (act July 31 , 1984 , sec. 
 8, 28 Stat., 208); and may appeal to the Comp- 
 troller of the Treasury from disallowances in 
 their accounts by the Auditor for the Navy 
 Department. (Same act and section.) Re- 
 quests for advance decisions of the Comptroller 
 of the Treasury must be forwarded by pay 
 officers through the Secretary of the Navy; 
 but appeals to the Comptroller from disallow- 
 ances by the Auditor for the Navy Department 
 may be forwarded by them direct. (Art. 
 1-2205, Naval Instructions, 1913; 90 S. and A. 
 Memo., 836.) 
 
 On general subject of accounting see 
 note to section 236, Revised Statutes; and see 
 Title XL, "The PubUc Moneys," sections 
 3591-3659, Revised Statutes. 
 
 Disbursing officers of the Navy shall render 
 their accounts and vouchers direct to the 
 proper accounting officer of the Treasury. (Sec. 
 3622, R. S., as amended.) 
 
 Secretary of the Treasury is required to 
 report annually to Congress disbursing officers 
 delinquent in rendering accounts. (Act May 
 28, 1896, 29 Stat., 179.) 
 
 Failure in rendering accounts as provided 
 by law is punishable as embezzlement by sec- 
 tion 90, Criminal Code, act of March 4, 1909 (35 
 Stat., 1105); other proceedings against delin- 
 quent officer are provided for by sections 
 3624-3638, Revised Statutes, and acts of July 
 31, 1894 (28 Stat., 206), and May 28, 1896, sec- 
 tion 4 (29 Stat., 179.) 
 
 Accounts of pay officer of lost or captured 
 vessel; see section 284, Revised Statutes for 
 provisions concerning. 
 
 Settlement of outstanding checks and ac- 
 counts of disbursing officers. (See sees. 306- 
 310, R. S., and art. R-4334, Navy Regs. 1913.) 
 
 Lost checks, procedure with reference to. (See 
 sees. 3646, 3647, R. S.; act of Feb. 23, 1909, 35 
 Stat., 643, and art. R-4337, Navy Regs., 1913.) 
 
 Advances of publicmoney are prohibited 
 by section 3648, Revised Statutes, with certain 
 exceptions contained in that section and in 
 section 1563, Revised Statutes, as amended 
 by act of March 4, 1917 (39 Stat., 1181); and 
 unauthorized advances are punishable as em- 
 bezzlement under section 87, Criminal Code, 
 act of March 4, 1909 (35 Stat., 1109.) 
 
 Requisitions for advances to disbursing offi- 
 cers and agents of the Navy may be issued by 
 the Secretary of the Navy under a "general 
 account of advances." (Act June 19, 1878, 
 sec. 1, 20 Stat., 167.) 
 
 Exchange of Government funds for other 
 funds, with certain exceptions, is prohibited; 
 
 468 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1378. 
 
 disbursing officer violating this prohibition 
 shall be suspended from duty immediately, 
 and the matter reported to the President to 
 the end that he may be promptly removed 
 from office or restored to duty (Sec. 3639 and 
 8651, R. S.); and such unauthorized exchange 
 of govermnent funds is punishable as embez- 
 zlement under section 89, Criminal Code, act 
 of March 4, 1909 (35 Stat., 1105). See sec- 
 tion 1624. Revised Statutes, article 14. 
 
 Depositing- public money in place not 
 authorized by law is punishable as embezzle- 
 ment under section 87, Criminal Code, act of 
 March 4, 1909 (35 Stat., 1105); a disbursing offi- 
 cer who deposits money in a bank not desig- 
 nated as a depositor}^ in accordance with sec- 
 tions 3620 and 3639, Revised Statutes, is liable 
 with his sureties for any loss that may arise from 
 the failure of such bank (20 Op. Atty. Gen., 24); 
 and the conduct of bankers or officers of banks 
 in knowingly receiving such money on deposit 
 is punishable as embezzlement by section 96, 
 Criminal Code, act of March 4, 1909 (35 Stat., 
 1106.) 
 
 All moneys received by any officer for the 
 United States must 1)e promptly paid into the 
 Treasury, without deduction (sec. 3617, R. S.); 
 officers violating this requirement shall be re- 
 moved from office and forfeit moneys withheld 
 (sec. 3619, R. S.); and such failure to deposit 
 public money when required so to do is punish- 
 able as embezzlement (sec. 91, Criminal Code, 
 act Mar. 4, 1909, 35 Stat., 1105). But see note to 
 section 236, Revised Statutes, under "Set-off." 
 
 Failing' safely to keep public moneys in 
 the care of a disbursing officer is punishal)le as 
 embezzlement. (Sec. 88, Criminal Code, act 
 Mar.4, 1909, 35 Stat., 1105.) See section 1624, 
 Re^dsed Statutes, article 14. 
 
 Making false returns, keeping false ac- 
 counts, or embezzling public or private money 
 or property, shall be punished by fine and im- 
 prisonment by any court, civil or military, hav- 
 ing jurisdiction. (See. 5306, R.S.) See section 
 1624, Revised Statutes, article 14. 
 
 Making false or fictitious entries in accoimts 
 or records, or making false reports of moneys or 
 securities belon^g to the United States or to 
 any person, or aiding or abetting therein, shall 
 be punished by fine of not more than $5,000, or 
 imprisonment for not more than 10 years, or 
 both. (Act Mar. 4, 1911, 36 Stat., 1355.) 
 
 Trading in Federal or State funds is 
 punishal)le under section 103, Criminal Code, 
 act of March 4, 1909 (35 Stat., 1107). 
 
 Any officer of the United States who sells for 
 a premium any Treasury note or other public 
 
 security not his own property, without account- 
 ing for such premium, shall be forthwith dis- 
 missed from office. (Sec. 3652, R. S.) 
 
 Responsibility of disbursing oflB.cers. — 
 Upon application to Court of Claims, disbursing 
 officers may be relieved of responsibility for 
 losses incurred without fault or neglect on their 
 part. (Judicial Code, act Mar. 3, 1911, sees. 
 145, 147, 36 Stat., 1136, 11.37.) 
 
 Disbursing officers of the Navy shall be 
 relieved by the accounting officers of responsi- 
 bility on account of loss or deficiency deter- 
 mined by the Secretary of the Navy to have 
 occurred without fault or negligence on the 
 part of such disbursing officers while they were 
 in the line of their duty. (Act July 11, 1919, 
 41 Stat., 132; see also similar provision in the 
 same act (41 Stat., 153) as to losses incurred 
 during the "present emergency" due to mili- 
 tary necessity or accidental circumstances.) 
 
 Responsibility of disbursing officers for pay- 
 ments made by order of commanding officers: 
 See section 285, Revised Statutes, and cases 
 noted thereunder; see also note to section 176, 
 Revised Statutes. 
 
 Embezzlement. — On general subject, see 
 sections 86-96, Criminal Code, act of March 4, 
 1909 (35 Stat., 1105, 1106), and section 1624, 
 Revised Statutes, article 14. 
 
 Receipts. — Taking receipt for larger sum 
 than paid is punishable as embezzlement under 
 sections 86 and 95, Criminal Code, act of March 
 4, 1909 (35 Stat., 1105, 1106); taking receipts for 
 payments by check, duplicate receipts for cash 
 payments, or receipts in advance of actual pay- 
 ments, is prohibited by Navy Regulations, 1913, 
 article R-4303. 
 
 Miscellaneous. — Disbursing officers are re- 
 quired to furnish heads of departments with cer- 
 tain data for annual reports to Congress (sec. 193, 
 R. S.); and are required to make annual report 
 to the Secretary of the Treasury of checks out- 
 standing for three years or more (sec. 310, R. S.). 
 
 Disbursing officers are not allowed to pay ex- 
 pense connected with any commission or in- 
 cjuiry, except courts-martial or courts of in- 
 quiry in the military or naval service, unless 
 special appropriation therefor is made by law 
 (sec. 3681, R. S.); nor to pay compensation or 
 expenses of any commission, council, board, or 
 similar body, unless the creation of the same 
 shall be authorized by law. (Act Mar. 4, 1909. 
 sec. 9, 35 Stat., 1027.) 
 
 No money can be paid to any person as com- 
 pensation who is in arrears to the United States. 
 (Sec. 1766, R. S. See note to sec. 236, R. S., 
 under "VI. Set-Off.") 
 
 Sec. 1377. [Supply Corps; no promotion or appointment in certain grades 
 until reduced. Obsolete.] 
 
 It became obsolete as soon as the number 
 of passed assistant paymasters was reduced 
 below 30. See also later laws, noted above 
 under section 1376, increasing the number of 
 passed assistant and assistant paymasters. 
 
 This section provided as follows: 
 
 "Sec. 1377. Until the number of passed 
 assistant paymasters shall have been reduced 
 below tlilrty, there shall be no promotion to 
 that grade, nor any appointment to the grade 
 of assistant paymaster." — (15 July, 1870, c. 295, 
 s. 11, V. 16, p. 334.) 
 
 Sec. 1378. [Supply Corps ; appointments in, how made.] All appointments in 
 the Pay Corps shall be made by the President, by and with the advice and 
 
 469 
 
Sec. 1379. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 consent of the Senate.— (30 Mar., 1812, c. 47, s. 6, v. 2, p. 699. 22 June, 1860, 
 c. 181, s. 3, V. 12, p. 83. 17 July, 1861, c. 4, s. 1, v. 12, p. 258. 3 May, 1866, 
 c. 72, s. 1, r. 14, p. 43.) 
 
 Amendment to this section was made by act 
 of July 11, 1019 (41 Stat., 147), which 
 changed the designation of the Pay Corps 
 to "Supply Corps." 
 As to appointment of officers in general, see 
 note to Constitution, Article II, section 2, 
 clause 2. 
 Acting pay officers may be appointed at sea by 
 senior officer present, in cases authorized 
 by section 1381, Revised Statutes; see also 
 note to section 1410, Revised Statutes. 
 Appointments as acting pay clerks are made 
 by the Secretary of the Navy; appoint- 
 ments as pay clerks are matle by the Presi- 
 dent; and appointments as cliief pay clerks 
 are made by the President, by and with 
 the advice and consent of the Senate. 
 (Act Mar. 3, 1915, 38 Stat., 942.) 
 Appointments in the Naval Reserve Force, to 
 commissioned grades, shall be made by the 
 President alone, and to warrant grades shall 
 be made by the Secretary of the Navy. 
 (Act Aug. 29, 1916, 39 Stat., 587.) 
 Appointments of temporary commissioned offi- 
 cers during the war ■ndth Germany were to be 
 
 made by the President, by and with the 
 advice and consent of the Senate. (Act 
 May 22, 1917, sec. 12, 40 Stat., 87.) 
 Promotion of officers; for provisions relating to, 
 
 see section 1380, Revised Statutes. 
 Rank of officers of the Navy shall not be 
 changed "except in accordance with the 
 provisions of existing law, and by and with 
 the advice and consent of the Senate." 
 (Sec. 1506, R. S. as amended byact June 17, 
 1878, 20 Stat. 143.) 
 Recess appointments when Senate not in ses- 
 sion. (See note to Constitution, Art. II, 
 sec. 2, clause 3; see also note to sec. 1381, 
 R. S.) 
 Supply Corps limited to commissioned 
 oflicers. — "It is ob\-ious from the language of 
 section 1378 that the Pay Corps is limited to offi- 
 cers commissioned by the President, and that 
 clerks and others who are not so commissioned 
 do not belong to the Pay Corps." (U. S. v. 
 Mouat, 124 U. S., 303.) 
 
 See note to section 1369, Revised Stat- 
 utes, concerning appointments in the Navy. 
 
 Sec. 1379. [Supply Corps ; qualifications for assistant paymasters.] No per- 
 son shaU be appointed assistant paymaster who is, at the time of such appoint- 
 ment, less than twenty-one or more than twenty-six years of age; nor until his 
 physical, mental, and moral qualifications have been examined and approved by 
 a board of paymasters appointed by the Secretary of the Navy, and according 
 to such regulations as he may prescribe. — (17 July, 1861, c. 4, s. 2, v. 12, p. 258.) 
 
 Age for appointment as assistant paymaster 
 from among chief pay clerks and pay clerks, 
 was fixed by act of March 3, 1915 (38 Stat., 
 943), at "between the ages of twenty-one 
 and thirty-five years at the time of appoint- 
 ment. " 
 
 Boards may be convened by officers on foreign 
 stations. (Act March 4, 1917, 39 Stat., 
 1171.) 
 
 Midshipmen on graduation may be appointed 
 assistant paymasters in the Navj', by au- 
 thority of act of July 9, 1913 (38 Stat., 103); 
 see also note to section 1521, Revised 
 Statutes. 
 
 The age limit fixed by this section was waived 
 by act of July 3, 1894 (28 Stat., 99), for the 
 benefit of certain graduates of the Naval 
 Academy who had been discharged from 
 the service; and by act of March 3, 1899 (30 
 Stat., 1038), for the benefit of persons who 
 had served as assistant paymasters in the 
 war with Spain. The age limit has also 
 been waived by special act of Congress in 
 individual cases (see, for example, act May 
 9, 1914, 38 Stat., 39). Special age limits 
 were prescribed for officers appointed in 
 the Regular Navy by transfer from the 
 temporary Navj'^ and Naval Reserve Force, 
 by act of June \ 1920, section 5 (41 Stat., 
 835). 
 
 A candidate who has passed his twenty- 
 sixth birthday is ineligible and can not, 
 therefore, legally be appointed to the Pay Corps 
 under section 1379, Revised Statutes. This has 
 been the prior interpretation of the law by the 
 Na\'y Department, and such interpretation 
 received the approval of Congress in the enact- 
 ment of a special act of May 9, 1914 (38 Stat., 39), 
 wai\-ing the age limit in the case of a candidate 
 who successfully passed the Pay Corps examina- 
 tion while under 26 years of age, but who at- 
 tained that age the day after the board's finding 
 was approved and before his nomination could 
 be made by the President, owing to an adjourn- 
 ment of the Senate for the Chi-istmas holidays. 
 Other statutes relating to the ages of candidates 
 for appointment to the Navy have beem. simi- 
 larly interpreted by the Navy Department and 
 the Attorney General, and there have been judi- 
 cial decisions in civil cases which support such 
 interpretation. (File 27223-12:1, Jan. 27, 1915, 
 citing authorities.) 
 
 For other decisions, see note to section 1370, 
 Revised Statutes, as to age of candidates for 
 appointment as assistant surgeons ; see also sec- 
 tion 1517, ReAdsed Statutes, as to age of candi- 
 dates for appointment as midshipmen at the 
 Naval Academy; and act of March 3, 1899, sec- 
 tion 14 (30 Stat., 1007), as to age of candidates 
 for appointment as warrant machinists (now 
 designated as "machinists"). 
 
 470 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1380. 
 
 As to wnat constitutes appointment, see 
 note to Constitution, Aiticle II, section 2, clause 
 2; and see note to section 1370, Revised Stat- 
 utes, as to when an appointment as assistant 
 siugeon is complete. 
 
 Examination by "board of paymas- 
 ters." — The term "paymasters" in this section 
 has been construed to mean "officers of the 
 Supply Corps," and not as restricting the mem- 
 bership of the examining board to officers in the 
 grade of "paymaster." (See T^Jt. 1640, Navy 
 Regs. , 1920 . As to grades of officers constituting 
 the Supply Corps, see note to sec. 1376, R. S.) 
 
 [This section is pecuUar in requiring the phys- 
 ical qualifications of candidates for the Supply 
 Corps to be examined and approved by a board 
 not composed of medical officers. In practice, 
 nevertheless, candidates for this corps are phys- 
 ically examined by a board of medical officers, 
 who report the result of such examination to the 
 statutory board, and the latter thus have the 
 benefit of the medical officers' opinion to guide 
 
 them in making their report upon the physical 
 qualifications of the candidates. (See Art. 
 R-3306, Navy Regs. , 1913. See also in this con- 
 nection act Mar. 3, 1915, 38 Stat., 942, providing 
 that candidates for appointment as acting pay 
 clerk, pay clerk, and cliief pay clerk shall be 
 physically, as well as mentally, morally, and 
 professionally examined by a board, composed 
 when practicable of officers of the Pay [now 
 Supply] Corps.) Report of medical officers is 
 not, however, binding upon the statutory 
 board, which may legally find physically qual- 
 ified for appointment a candidate who has been 
 adversely reported upon by the medical officers. 
 (See, for example, records of examining boards 
 in cases of Assistant Paymasters Charles L. 
 Austin, Walter Maudry, and Maury W. Boy- 
 kin.)] 
 
 Qualifications for temporary appoint- 
 ment. — See note to section 1370, Revised 
 Statutes, under "Appointments to temporary 
 service." 
 
 Sec. 1380. [Supply Corps ; promotions in.] Passed assistant paymasters shall 
 be regularly promoted and commissioned from assistant paymasters, and pay- 
 masters from passed assistant paymasters; subject to sucli examinations as 
 may be prescribed by the Secretary of the Navy. — (17 July, 1861, c. 4, s. 5, v. 
 12, p. 258. 3 May, 1866, c. 72, s. 1, v. 14, p. 43.) 
 
 Examinations were discontinued for promotion 
 of staff officersingradebyactof May 22, 1917, 
 section 20 (40 Stat., 89), which act and 
 section also reenacted a provision in the act 
 of March 4, 1917 (39 Stat., 1182), requiring 
 examinations of staff officers for advance- 
 ment in rank. 
 It was provided by act of August 29, 1916 (39 
 Stat., 576), that "officers of the lower grades 
 of the Medical Corps, Pay [now Supply] 
 Corps, Construction Corps, and Corps of Civil 
 Engineers shall be advanced in rank up to 
 and including the rank of lieutenant com- 
 mander with the officers of the line with 
 whom or next after whom they take prece- 
 dence under existing law." (See note to 
 sec. 1475, R. S.) 
 By act of July 1, 1918 (40 Stat., 718), it was 
 provided that advancement to the ranks of 
 commander, captain, and rear admiral in 
 the Staff Corps of the Navy shall be made 
 by selection in the manner therein pre- 
 scribed. 
 
 Assistant paymasters are promoted to 
 passed assistant paymasters after three years' 
 service, provided vacancies exist in the upper 
 grade. 
 
 The following order was issued by the Secre- 
 tary of the Navy, February 21, 1908: "It is 
 directed that hereafter assistant paymasters 
 shall be considered as due for promotion to be 
 passed assistant paymasters as soon as they have 
 served three years in the grade of assistant pay- 
 master: Provided, That the number of passed 
 assistant paymasters shall not exceed fifty-six." 
 (File 3022-5; as to increase by law in total of 
 passed assistant pavmasters, see note to sec. 
 1376,_R. S.) 
 
 This order was modified by the President, 
 upon recommendation of the Secretary of the 
 
 Navy, August 23, 1912 (file 1660-139, Bu. Nav.), 
 by increasing the grade of passed assistant pay- 
 master to 76, pursuant to act of August 22, 1912, 
 (noted under sec. 1376, R. S.), and providing 
 that "no assistant paymaster shall be promoted 
 to passed assistant paymaster until he shall have 
 served three years in the grade of assistant 
 paymaster." 
 
 The promotions of assistant paymasters in 
 accordance with the above order of the Secre- 
 tary of the Navy are promotions "in coiu:se," 
 within the meaning of the act of June 27, 1874 
 (18 Stat., 191), and are advancements in grade 
 "pursuant to law," within the meaning of the 
 act of March 4, 1913 (37 Stat., 892). (See Wil- 
 liams V. U. S., 47 Ct. Cls., 316, and Crapo v. 
 U. S., 50 Ct. Cls., 337; see also sec. 1561, R. S.) 
 
 The law does not regulate the length of time 
 which an officer must serve in the grade of 
 assistant paymaster before being eligible, if 
 otherwise qualified, to fill a vacancy which may 
 exist in the grade of passed assistant paymaster. 
 The department has, however, adopted the 
 procedure, which is now well established, by 
 which such advancements are regulated by 
 length of service, but it may modify in a par- 
 ticular case the procedure thus established. 
 (File 11130-30:1, May 4, 1916.) 
 
 Subject to the limitations contained in laws 
 prior to August 29, 1916, as to the number of offi- 
 cers in certain lower grades of the Pay Corps (see 
 note to sec. 1376, R. S.), the Secretary of the 
 Navy has discretion to pro^dde that all assistant 
 paymasters shall be promoted to passed assistant 
 paymasters at the same time that they are ad- 
 vanced to the rank of lieutenant, and that all 
 passed assistant paymasters shall be promoted 
 to paymaster at the same time that they are 
 advanced to the rank of lieutenant commander. 
 (File 27223-37, Mar. 20, 1918.) 
 
 471 
 
Sec. 1381. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 Pay on promotion. — All officers of the 
 Navy advanci'd in i^^rade or rank pursuant to law 
 shall be alldwod the i)ay and allowances of the 
 higher frrade or rank from the dates stated in 
 their conmussions. (Act Mar. 4, 1913, 37 Stat., 
 892; see note to sec. 1561, R. S.) 
 
 Suspension from promotion of officers 
 who fail to (jualify when examined is required 
 by section J 505, lie vised Statutes, as amended 
 by act of March 11, 1912 (37 Stat., 73), and May 
 22, 1917, section 20 (40 Stat., 89). 
 
 Sec. 1381. [Supply Corps ; acting appointments on ships at sea.] When the 
 office of paymaster or assistant paymaster becomes vacant, by death or other- 
 wise, in ships at sea, or on foreign stations, or on the Pacific coast of the United 
 States, the senior officer present may make an acting appointment of any fit 
 pei-son, who shall perform the duties thereof until another paymaster or assistant 
 pa3^master shall report for duty, and shall be entitled to receive the pay of 
 such grade while so acting. — (17 July, 18G1, c. 4, s. 4, v. 12, p. 258.) 
 
 Acting appointee continues to hold his 
 regular office. — "An acting appointment of a 
 paymaster's clerk to perform the duties of pay 
 officer on board a naval vessel at sea, under sec- 
 tion 1381, Revised Statutes, does not change 
 his official status as a paymaster's clerk." (21 
 Comp. Dec, 548.) 
 
 Not entitled to dual compensation. — "A 
 naval officer acting as paymaster is appointed 
 to discharge the duties of an office which he 
 does not hold , and is prohibited from receiving 
 dual compensation by the Revised Statutes, 
 sections 1763, 1765." (Webster v. U. S., 28 
 Ct. Cls., 25.) 
 
 It is true that Revised Statutes, sections 1381 
 and 1564, provide that any person performing 
 the duties of paymaster by appointment of the 
 senior officer, shall be entitled to receive the 
 pay of such grade while so acting. Those sec- 
 tions must be construed with reference to other 
 provisions of the statute, and while they may 
 operate literally if the appointee holds no 
 office under the Government, as may be the 
 case, if he holds an office he can not escape 
 from the prohibitions of the Revised Statutes, 
 sections 1763, 1765. It does not appear that 
 Congress intended to allow an officer two sala- 
 ries when temporarily discharging the duties of 
 acting paymaster by appointment under sec- 
 tion 1381. (Webster v. U. S., 28 Ct.Cls., 25.) 
 
 Entitled to larger compensation of the 
 two positions. — ' ' It is the liberal custom of 
 the Treasury Department to allow a person 
 holding more than one office the compensation 
 of that which is the larger." (Webster v. 
 U. S., 28 Ct. Cls., 25. )_ 
 
 "The offices of engineer and paymaster in 
 the Navy are incompatible, and he who holds 
 them is not entitled to the compensation of 
 both, but is entitled to the larger of the two." 
 (Webster v. U. S., 28 Ct. Cls., 25.) 
 
 Not entitled to pay officer's longevity 
 pay. — "Where a paymaster's clerk of the Navy 
 is appointed, under sections 1381 and 1564 of 
 the Revised Statutes, to perfora the duties of a 
 paymaster, such acting paymaster is entitled 
 to receive the base pay of the paymaster whose 
 duties he is appointed to perform, but not his 
 longevity pay." (18 Comp. Dec, 491; see 
 also 21 Comp. Dec, 548; Ostrander v. U. S., 
 22 Ct. Cls., 218,222; Webster v. U. S., 28 Ct. 
 Cls., 25.) 
 
 Where the officer whose place is vacant held 
 the grade of paymaster, with the rank of 
 
 Acting appointments in general; see note to 
 
 section 1410, Revised Statutes. 
 Pay of officer under acting appointment; see 
 
 section 1564, Revised Statutes. 
 Restrictions upon employment of persons to 
 receive and. pay money for use of the naval 
 service on foreign stations, are contained 
 in section 1550, Revised Statutes. 
 Status of appointee w^hile acting. — "An 
 officer duly appointed to act in any grade shall, 
 while serving under such appointment, be 
 entitled to the same command, precedence, 
 and honors as if he held a commission in that 
 grade of the same date as his appointment." 
 (Art. R-1048, Navy Regs., 1913.) 
 
 In determining the meaning of the Revised 
 Statutes, and of subsequent acts of Congress, 
 "the reference to any officer shall include any 
 person authorized by law to perform the duties 
 of such office, unless the context shows that 
 such words were intended to be used in a more 
 limited sense." (Sec. 1, R. S.) 
 
 The words "paymaster or assistant pay- 
 master" have been construed as including 
 "any officer of the Pay Corps on duty"; (Art. 
 .R-3006, Navy Regs., 1913; see also 22 Comp. 
 Dec., 171); and as including assistant pay- 
 masters of the Marine Corps, by virtue of sec- 
 tion 1621, Revised Statutes (22 Comp. Dec, 
 171). 
 
 Acting appointment not an office. — "An 
 acting paymaster appointed by the senior offi- 
 cer present is not an officer. He is not ap- 
 pointed as required by the Constitution, takes 
 no oath of office, and gives no bond as paymas- 
 ter." (Webster v. U. S., 28 Ct. Cls., 25; see 
 note to Constitution, Art. II, sec. 2, clause 2.) 
 "From the above it will be seen that, strictly 
 speaking, there is no such office in the Navy 
 as acting assistant paymaster to which appel- 
 lant could have been appointed. As a matter 
 of law he was given an acting appointment to 
 perform the duties of the assistant paymaster 
 as pay officer on board a vessel at sea. * * * 
 There is no evidence in the papers in the case 
 that he took any oath as acting assistant pay- 
 master, and even though he did it would not 
 make him an incumbent of the office of acting 
 assistant paymaster, because there is in law no 
 such office. The distinction is between one 
 acting as a.ssistant paymaster, and holding 
 the office of acting assistant j)aymaster. He 
 continued to hold office under his appointment 
 as a paymaster's clerk;" (21 Comp. Dec, 548.) 
 
 472 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1381. 
 
 lieutenant commander, there being two ranks 
 in the grade of paymaster ^ — namely, lieutenant 
 commander and lieutenant; held, that a pay- 
 master's clerk appointed to perform the pay- 
 master's duties is entitled to pay based upon 
 the rank of lieutenant commander. (18 Comp. 
 Dec, 491.) 
 
 "The claimant was paid the salary of a 
 paymaster in the first five years of service. 
 He claims the pay of paymaster in the 
 fourth five years, in whose place he was 
 acting. Increase of pay for length of service 
 in the Na\'y' is founded on the theory that an 
 officer acquires experience and efficiency by 
 the long performance of the same duties. It 
 is not to be presumed that Congress intended 
 to pay from the beginning the increased com- 
 pensation allowed for length of service to one 
 who is appointed temporarily to dischai'ge the 
 duties of paymaster." (Webster v. U. S., 28 
 Ct. Cls., 25; "18 Comp. Dec, 491.) 
 
 Termination of acting appointment. — 
 Under section 1381 the continuance of the 
 acting appointment "does not depend upon a 
 discharge or revocation. It terminates when 
 another paymaster reports for duty, and the 
 pay continues at farthest only to the time when 
 the acting officer's accounts are made up and 
 filed." (Ostrander v. U. S., 22 Ct. Cls., 
 218.) 
 
 By virtue of an appointment imder this law 
 the claimant was authorized to perform the 
 duties of the invaUd officer "until another pay- 
 master or assistant paymaster should report for 
 duty," and no longer. No phraseology in the 
 appointment could confer greater rights than 
 are herein authorized. Words which confer 
 more, if any such are employed, are simply 
 void. (Ostrander v. U. S., 22 Ct. Cls., 218.) 
 
 A paymaster's clerk in the Navy, authorized 
 under section 1381, Revised Statutes, to perform 
 the duties of assistant paymaster, was delin- 
 quent in settling his accounts in the latter 
 capacity. During the period of delinquency 
 he was a witness before a naval general court- 
 martial. Held, That from the date his accounts 
 should have been settled until he was dis- 
 charged as a witness before the general court- 
 martial his status was that of paymaster's clerk, 
 to which status he reverted on the date that hia 
 accounts should have been settled. Held, fur- 
 ther. That a waiver of delinquency which was 
 granted in forwarding his accounts to the 
 Treasury Department did not operate to place 
 htm in the duty status of settling accounts, 
 and consequently did not entitle htm during 
 that period to the pay of the officer whose duties 
 he was appointed to perform. (21 Comp. Dec, 
 548.) 
 
 Temporary absence of ofl&cer not a va- 
 cancy. — The office of pa^onaster or assistant 
 paymaster must become vacant before the con- 
 ditions exist in which a person may be ap- 
 pointed to act "until another paymaster or 
 assistant paymaster shall report for duty." 
 The temporary absence of a paymaster from his 
 ship or station does not create a vacancy in his 
 office as contemplated by the statute. (10 
 Comp. Dec, 135; compare sec. 179, R. S.,and 
 cases noted thereunder.) 
 
 Where an officer was acting in a double 
 capacity, as pay ofiicer of a vessel and general 
 
 storekeeper at the naval station, and while 
 absent performing his duties as pay officer of 
 the ship was directed to turn over to a pay 
 clerk such of the duties of his station as coulS 
 be legally executed by said clerk during his 
 absence. Held, That this did not operate to 
 detach the officer from the office of general 
 storekeeper, and did not create a vacancy 
 therein, so as to authorize the appointment of 
 an acting assistant paymaster during such tem- 
 porary absence. (10 Comp. Dec, 135.) 
 
 Inherent power of President to provide 
 for acting appointments. — Section 1381 ap- 
 plies in terms to a vacancy in the office of ' ' pay- 
 master or assistant paymaster." However, by 
 Navy Regulations 1920 (Art. 1228), provision 
 is made for actmg appointments by the senior 
 officer present in case of the death, etc., of 
 "any officer of the Supply Corps on duty." 
 (See also Art. 1229.) 
 
 Statutory authority was not necessaiy for the 
 President to make a valid regulation providing 
 that "on foreign stations a commander may, 
 when absolutely necessary, give acting appoint- 
 ments to fill vacancies which may be occa- 
 sioned by death or other circumstances; but in 
 such cases he shall take the earliest opportunity 
 to make known the circumstances to the Secre- 
 tary of the Na\'3', and state his reasons for 
 making such acting appointments." This 
 regulation was published in the Navy Regula- 
 tions of 1818, commonly called the "Blue 
 Book," under the head of "Appointments." 
 After its promulgation it was considered "as 
 entitled to respect and obedience. Many 
 acting appointments, including acting pursers, 
 have been made under it, which have received 
 the recognition of the President, the Na\'y 
 Department, and the accounting officers of the 
 Treasury and the courts of law. * * * To 
 fiU up a vacancy by an appointment of one to 
 act ad interim and for a particular exigency in a 
 distant service, is in its nature an executive, 
 ministerial, and administrative power. " (6 Op. 
 Atty, Gen., 357.) 
 
 A statute which provides that an officer shall 
 not act unless first approved by the Senate, 
 must have a construction consistent with the 
 exception to the power of the Senate, contained 
 in the Constitution, whereby the President is 
 authorized to fill up all vacancies that may 
 happen during the recess of the Senate, by 
 granting commissions which shall expire at the 
 end of their next session, so that the statute 
 shall not be in conflict with the Constitution. 
 That is to say, there is an exception not ex- 
 pressed in the statute but necessarily implied. 
 The Constitution itself, in relation to the power 
 of the President to fill up vacancies which may 
 happen during the recess of the Senate, must 
 have a reasonable construction, adapted to the 
 end, utility, and practical effect intended in 
 confen'ing that power. In the cases of officers 
 of the Navy, on far distant ser\dce, in the dif- 
 ferent seas and oceans, vacancies will happen 
 which can not abide to be filled until the Presi- 
 dent may be informed and exercise his appouit- 
 iug power. To meet such exigencies, the Presi- 
 dent may provide by regulation for the tem- 
 porary filling of such vacancies by the naval 
 commander. (6 Op. Atty. Gen., 357; in this 
 connection, see sec. 1378, R. S.) 
 
 473 
 
Sec. 1383. 
 
 PI. 2. REVISED STATUTES. 
 
 The Navy. 
 
 Ill tlie absence of los;i3lati\'e authority, the 
 comraaiuk'r of a squadron of the Navy on a 
 foroipn station has power to appoint a pro- 
 visional or acting dl'^hursing ofHccr in the ab- 
 sence of any such ollicer duly appointed by 
 the President. Although such appointment be 
 subsequently disapproved by the Secretary of 
 
 the Navy, still the acts which the acting officer 
 may have performed while so acting are not 
 thereby invalidated. (6 Op. Atty. Gen., 
 357.) 
 
 F'or other cases, see notes to sections 177 
 and 181, Revised Statutes, and to Constitu- 
 tion, Article II, section 2, clause 3. 
 
 Sec. 1382. [Supply Corps ; paymaster of the fleet.] The President may desig- 
 nate among the paymasters in the service, and appoint to every fleet or squadron 
 a paymaster, who shall be denominated "paymaster of the fleet." — (24 May, 
 1828, c. 121, s. 2, V. 4, p. 313. 21 April, 1864, c. 63, s. 7, v. 13, p. 54.) 
 
 Pay of fleet paymasters was fixed at $4,400 per 
 annum by section 1556, Revised Statutes. 
 (See note to that section.) 
 See section 1373, Re\dsed Statutes, as to ap- 
 pointment of fleet surgeons; and section 
 1393, Re\rised Statutes, as to appointment 
 of fleet engineers. 
 The -word "paymasters" as used in this 
 section has been construed to mean any officer 
 of the Supply Corps, and not as restricting 
 details for this duty to officers in the grade of 
 "paymaster." (See Art. R-1826 (2), Navy 
 Regs., 1913, as amended.) 
 
 Must be designated hy the President. — 
 No designation other than that made by the 
 President entitles a naval paymaster to the 
 place and perquisites of paymaster of the fleet. 
 (18 Op. Atty. Gen., 156; followed 5 Comp. Dec, 
 466; compare Art. R-1826 (2), Navy Regs., 1913.) 
 The powers conferred by sections 1381 and 
 1382, respectively, are quite distinct. (18 Op. 
 Atty. Gen,, 156.) 
 
 Secretary of the Navy acts for the 
 President. — "The action of the Secretary of 
 the XaA^ in approving the designation of the 
 fleet officers named by general squadron order 
 may be regarded as the action of the President, 
 and as a sufficient compliance with the law 
 which authorizes him to make such appoint- 
 ment. The action of the head of a department 
 witliin the scope of his authority is to be taken 
 as the action of the President himself." (5 
 Comp. Dec, 888, citing Wolsey v. Chapman, 101 
 U. S,, 755, 769; Wilcox v. Jackson, 13 Pet., 498, 
 513; U. S. V. Eliason, 16 Pet., 291; 4 Comp. Dec, 
 463; see also note to sec. 1393, R. S.) 
 
 For other cases, see note to section 417, Re- 
 vised Statutes, 
 
 Approval by Secretary of the Navy not 
 retroactive. — "The designation by the com- 
 mander in chief of a naval squadron of a pay- 
 master of the Navy as paymaster of the fleet 
 does not entitle him to the increased pay of 
 that position, and a subsequent approval of 
 
 such designation by the Secretary of the Navy 
 can not have a retroactive effect." (5 Comp 
 Dec, 466,) 
 
 Where designation was made by a com- 
 mander in chief, and subsequently (more than a 
 year later), was approved by the President, he 
 did not become entitled from the date of his 
 designation to pay as paymaster of the fleet. 
 There is not any relation by the subsequent 
 approval to the time of the designation by the 
 Admiral, The latter act has no significance in 
 point of law, no more than as any other recom- 
 mendation made to an appointing power. (18 
 Op. Atty. Gen,, 156 : followed 5 Comp. Dec, 466,) 
 
 Termination of appointment. — In the 
 case of Denig v. U. S. (37 Ct. Cls,, 383) it was 
 shown that the officer (fleet engineer) had no 
 duties to perform as fleet engineer from the 
 date the commander in chief was detached 
 until his designation by the new commander 
 in chief was approved by the Secretary of the 
 Navy, his vessel in the meantime being sepa- 
 rated from the rest of the fleet and no duty re- 
 quired of claimant as fleet engineer. It was 
 held that the officer was not entitled to pay as 
 fleet engineer during the interim, "even if the 
 detachment of the commander in chief was not 
 of itself a revocation of his appointment as fleet 
 engineer." (10 Comp. Dec, 817.) 
 
 Pay when not performing duty.— "The 
 effect of this decision [Denig v. U, S,, noted in 
 preceding paragi-aph] is that, although Denig's 
 appointment as fleet engineer continued un- 
 revoked during said fifty-four days, he was not 
 entitled to receive the pay of fleet engineer 
 during that period, because the flagship upon 
 wliich he was serving was separated from the 
 rest of the fleet and no duties were required of 
 him as fleet engineer." (10 Comp, Dec, 817,) 
 
 "An oflicer of the Navy serving as paymaster 
 of a fleet is not entitled while on leave of ab- 
 sence to the pay of a fleet paymaster, but only 
 to the shore pay of Ms rank." (10 Comp. Dec, 
 817,) 
 
 Sec. 1383. [Supply Corps; bonds of officers.] Every paymaster, passed 
 assistant paymaster, and assistant paymaster shall, before entering on the 
 duties of his office, give bond, with two or more sufficient sureties, to be 
 approved by the Secretary of the Navy, for the faithful performance thereof. 
 Paymasters shall give bonds in the sum of twenty-five thousand dollars, passed 
 assistant paymasters in the sum of fifteen thousand dollars, and assistant 
 paymasters in the sum of ten thousand dollars. — (30 Mar., 1812, c. 47, s. 6, v. 2, 
 p. G99; 1 Mar., 1817, c. 24, s. 1, v. 3, p. 350; 22 June, 1860, c. 181, s. 3, v. 12, 
 
 474 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1383. 
 
 p. 83; 17 July, 1861, c. 4, s. 5, v. 12, p. 258; 14 July, 1862, c. 175, s. 1, v. 12, 
 p 575; 3 May, 1866, c. 72, s. 2, v. 14, p. 43.— U. S. v. Tingey, 5 Pet., 115.) 
 
 Deficiency, when discovered, shall be reported 
 
 by accounting officers to head of depart- 
 ment, who shall immediately notify all 
 
 obligors thereof; but failure to give such 
 
 notice shall not discharge the sureties. 
 
 (Act Aug. 8, 1888, sec. 1, 25 Stat., 387.) 
 Disbursing clerks in executive departments: 
 
 See section 176, Re^'ised Statutes, and note 
 
 thereto, as to bonds required to be fur- 
 nished. 
 Disbursing officers against whom a warrant of 
 
 distress has been issued for failure to ac- 
 count for public moneys, must furnish bond 
 
 in a prescribed sum before an injunction 
 
 shall issue upon their complaint to stay pro- 
 ceedings on such warrant. (Sec. 3636, R. S.) 
 Examination of bonds shall be made at least 
 
 once in two years by officers having power 
 
 to take and approve such bonds, and by 
 
 officers having power to fix the amount 
 
 thereof, for purpose of ascertaining suffi- 
 ciency of sureties and of approving or fix- 
 ing the amount. (Act Mar. 2, 1895, sec. 5, 
 
 28 Stat., 807.) 
 Navy* imail clerks and assistant Navy mail 
 
 clerks are required to give bond in such 
 
 sum as the Postmaster General may deem 
 
 sufficient. (Act May 27, 1908, 35 Stat., 417, 
 
 as amended by act Aug. 24, 1912, sees. 3 
 
 and 11, 37 Stat., 554, 560.) All bonds taken 
 
 by the Post Office Department shall be 
 
 made to the United States of America. 
 
 (Sec. 403, R. S.) 
 Pay of naval officer required to give bond 
 
 commences, upon original entry into the 
 
 service, upon date of approval of his bond. 
 
 (See sec. 1560, R. S.) 
 Premium on bonds furnished by surety or 
 
 bonding company for any officer or em- 
 ployee of the United States shall not be 
 
 more than 35 per centum in excess of the 
 
 rate of premium charged for a like bond 
 
 during the calendar year 1908. (Act Aug. 
 
 5, 1909, 36 Stat., 125.) The United States 
 
 shall not pay any part of the premium or 
 
 other cost of furnishing a bond required by 
 
 law or otherwise of any officer or employee 
 
 of the United States. (Same act.) 
 President is authorized, if in his opinion the in- 
 
 terestof the United States require the same, 
 
 to regulate and increase the sums for which 
 
 bonds are or may be required by law of 
 
 officers employed in the disbursement of 
 
 the public moneys under the direction of 
 
 the Navy Department. (Sec. 3639, R. S.) 
 Renewal of bonds necessary at least once every 
 
 four years; but where not so renewed, 
 
 liability of principal or sureties shall not 
 
 be affected. (Act Mar. 2, 1895, sec. 5. 28 
 
 Stat., 807; see also sec. 1384, R. S.) 
 Special disbursing agents, other than officers of 
 
 Army or Navj^ are required to give bond. 
 
 (Sec. 3614, R. S.) 
 Storekeepers on foreign stations: Civilian store- 
 keepers appointed by Secretary of the Navy 
 
 on foreign stations are required to give 
 
 bond in amount fixed by Secretary of the 
 
 Nav^r. (Sec. 1415, R. S.) 
 
 Storekeepers on foreign stations: Officers of the 
 Navy acting in such capacity are required 
 to give bond in amount fixed by Secretary 
 of the Navy. (Sec. 1439, R. S.) 
 
 Suit on bonds: Sureties discharged if suit not 
 instituted witliin five years after discovery 
 of indebtedness. (Act Aug. 8, 1888, sec. 
 2, 25 Stat., 387.) 
 
 Suit on bonds: Judgment at return term shall 
 be granted by court when suit is brought 
 by United States upon a bond, unless the 
 defendant pleads "non est factum," or 
 makes a motion to the court, verifying such 
 plea or motion by his oath, and the court 
 thereupon requires the production of the 
 original bond, in which case a continuance 
 may be granted until the next succeeding 
 term. (Sec. 957, R. S.) 
 
 Suit on bonds: Judgment that plaintiff recover 
 so much as is due according to equity shall 
 be rendered in suits to recover forfeitures 
 annexed to bonds, where the forfeiture, 
 breach, or nonperformance appears by de- 
 fault or confession of the defendant, or 
 upon demurrer; and when the sum for 
 wnich judgment should be rendered is 
 uncertain, it shall, if either of the parties 
 requests it, be assessed by a jury. (Sec. 
 961, R. S.) 
 
 Suit on bonds: Copies of bonds duly certified 
 and authenticated are admissible in evi- 
 dence in suits against delinquent officers, 
 unless defendant pleads "non est factum" 
 or makes his motion to the court, verifying 
 such plea or motion by his oath, in which 
 case the court may, if it appears to be neces- 
 sary for the attainment of justice, require 
 the production of the original bond. (Sec. 
 886, R. S.) 
 
 Surety or guaranty company which complies 
 with necessary requirements may be ac- 
 cepted as sole surety on a bond. (Act Aug. 
 13, 1894, 28 Stat., 279, as amended by act 
 Mar. 23, 1910, 36 Stat., 241.) 
 
 I. Who Are Requieed to Give Bonds. 
 II. Necessity of Furnishing Bond Be- 
 fore Entering Upon Duty. 
 
 III. Date from Which Bond Takes 
 
 Effect. 
 
 IV. Form of Bond. 
 
 V. Sufficiency of Sureties. 
 VI. Approval of Bond. 
 VII. Condition of Bond. 
 VIII. Conflict of Laws. 
 IX. Liability of Sureties. 
 X. Miscellaneous. 
 
 I. Who Are Required to Give Bonds. 
 
 See statutes noted above, under this 
 section. 
 
 Pay directors and pay inspectors, 
 although not specified in the above section of 
 the Revised Statutes, are required to give bond 
 
 54641 ' 
 
 -31 
 
 475 
 
Sec. 1383. 
 
 Pt. 
 
 RE VISED STAT UTES. 
 
 The Navy. 
 
 byNavy RogulatioTis, 1913 (art. R-3002), which 
 
 jirovido that "before entering npon the dnties 
 of his oflice every ollieer of the Pay Corps shall 
 give bond for the faithful performance thereof, 
 with snfllcient surety, to be approved by the 
 Secretary of the Navy, and under such regula- 
 tions or instructions as may ho issued from time 
 to time by proper authority'"; and by Naval 
 Instnictions, 1913 (art. 1-3901), which provide 
 that "officers of the Pay Corps of the Navy, 
 * * * and such other officers or officials as 
 the Secretary of the Navy may direct, are re- 
 quired to furnish bonds for the faithful per- 
 formance of their duties." 
 
 "\\'hile there is no express statutory author- 
 ity requiring pay directors and pay inspectors 
 to give bond, the department, in view of the 
 fact that such officers have or may have dis- 
 bursing accounts, requires that they give bond 
 in the sum of twenty-five thousand dollars." 
 (File 26284-94, May 8, 1909.) 
 
 The Chief of the Bureau of Supphes and 
 Accounts has no disliursing account and is not 
 held personally responsible for the disburse- 
 ment of public moneys under the bureau. 
 Therefore in the absence of an express statutory 
 requirement it is not considered necessary that 
 he furnish a bond. * * * Should there be 
 such a change in the business methods of the 
 Bureau of Supplies and Accounts as would 
 place public funds in the hands of the Pay- 
 master General, in any capacity, it is consid- 
 ered in such case that the public interests 
 would indicate that a bond be required." 
 (File 26284-94, May 8, 1909, Memo, of Solicitor, 
 Nax-y Dept.) 
 
 "Chief pay clerks, pay clerks, and acting 
 pay clerks will be required to furnish bond for 
 the faithful performance of their duties in the 
 sum of five thousand dollars; and will be respon- 
 sible imder said bond for all money and stores 
 in their custody." (Art. R-3318A, par. 7, 
 Navy Regs., 1913, file 3980-1283, Oct. 18, 1916, 
 201 S. and A. Memo. 4423, Dec. 1 , 1917; C. N. R. 
 11, Dec. 1, 1918. See 24 Comp. Dec, 650; 
 25 Comp. Dec, 550; and see decisions of the 
 Supreme Court, noted below, as to the power 
 of the head of a department to demand a bond 
 in cases not required liy statute; see also above, 
 as to pay directors and pay inspectors.) 
 
 Enlisted men on duty iuA'olving the han- 
 dling of Government stores and money may be 
 required by the Secretary of the Navy to give 
 bond. (Fi'le 3980-1283, Oct. 18, 1916, May 
 2, 1917, and July 31, 1917.) 
 
 Pay OflB.cers, Naval Reserve Force, 
 whether of the Fleet Naval Reserve or Naval 
 Coast Defense Reserve, must furnish bond in 
 conformity with section 1383, Revised Statutes, 
 before their pav can commence. (Comp. Dec, 
 Apr. 30, 1917, file 26254-2224:5; see also Comp. 
 Dec, Apr. 14, 1917, file 26254-2222:1; Comp. 
 Dec, Apr. 7, 1917, file 26254-2224:2.) 
 
 Pay Officers, Naval Militia, assigned to 
 duty under the provisions of section 11 of the 
 Naval Militia Act of February 16, 1914 (38 
 Stat., 286, repealed by act July 1, 1918, 40 
 Stat., 708), not called into the service of the 
 United States and not required to disburse 
 Federal funds, are not required to give bond 
 as officers of the Navy. (Comp. Dec, Julv 6, 
 1917, file 26254-2224:7.) 
 
 The head of a department has power 
 to demand a bond from an officer appointed 
 to a place of trust, although there is no stat- 
 utory authority to take such bond . It was held 
 in United States v. Tingey (5 Pet., 115) that the 
 United States had the right to take a bond to 
 insure the faithful performance of duty on the 
 part of an indiAidual or officer where such bond 
 was voluntarily given and was not in viola- 
 tion of any provision of law; but that no officer 
 of the Government has a right, under color of his 
 office, to require from any subordinate officer, 
 as a condition of holding office, that he should 
 execute a bond "with a condition different 
 from that prescribed by law." The pow(>r of 
 the Government to take bonds in cases where 
 not required by any law or regulation , but only 
 by direction of the head of a department, was 
 recognized again in United States v. Bradley 
 (10 Pet., 343, 359). (Moses v. U. S., 166 U. S., 
 571, 586, 587; but see, contra, 24 Comp. Dec, 
 650; compare 25 Comp. Dec, 550.) 
 
 It is in the discretion of the President whether 
 or not to reqiiire bond of an officer of the Engi- 
 neer Corps employed as disbursing agent of the 
 Government. (6 Op. Atty. Gen., 24; compare 
 sec. 3614, R. S.) 
 
 Although the general functions and diities 
 of certain officers do not include specifically 
 the disbursement of public money, and those 
 officers are not required by statute to give bond, 
 yet the head .of the department may lawfiilly 
 assign to them duties within the general scope 
 of their employment other than and in addition 
 to those prescribed, whenever the exigencies of 
 the public service require it. ^Mierethe partic- 
 ular duty thus assigned involves the receipt or 
 disbursement of public money, it is competent 
 for the Secretary to take a bond for the protec- 
 tion of the Government against loss, although 
 such bond may not be required by statute ; and 
 the bond would be valid and binding upon both 
 principal and sureties if voluntarily given by 
 the officer. (17 Op. Atty. Gen., 391.) 
 
 The term "voluntary bond" does not 
 mean that it must have been offered and pressed 
 upon the Government when never asked for or 
 demanded by it. It is a voluntary bond when 
 it is not demanded by any particular statute or 
 regulation based thereon, and when it is not 
 exacted in violation of any law or valid regula- 
 tion of a department. The Government in such 
 cases has the right to demand a bond, in the 
 absence of any law; but can not extort a bond 
 from a reluctant officer with a condition therein 
 contained different from that which a statute 
 calls for. (Moses v. U. S., 166 U. S., 571 ; see also 
 U. S. V. Maurice, 26 Fed. Cas. No. 15747; 
 Jessup V. U. S., 106 U. S. 147; U. S. v. Rogers, 
 28 Fed. Rep., 607; Boehm v. U. S., 20 Ct. Cls., 
 241; 6 Op. Atty. Gen., 24.) 
 
 The head of a department may "require" an 
 officer to execute a "voluntary" bond in such 
 penalty as the former may deem adequate to 
 protect the public interests. (26 Op. Atty. Gen., 
 627.) 
 
 Although there is no statute specially 
 providing for the execution of a bond by 
 one holding a particular office, the order of the 
 head of the dei^artment that a bond bo executed 
 is one which the Secretary has power to make. 
 "The consideration or the condition of the bond 
 
 476 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1383. 
 
 must not be in violation of law ; it must not run 
 counter to any statute; it must not be either 
 malum prohibitum or malum in se. Otherwise 
 and for all purposes of security, a bond may be 
 valid, though no statute directs its delivery." 
 (Moses 1'. U.S., 166 U.S., 571; but see 24 Comp. 
 Dec, 650. Compare 25 Comp. Dec, 550.) 
 
 In Moses v. U. S. (1G6 U. S., 571), and U. S. v. 
 Dieckerhoff (202 U. S., 302), the court concluded 
 by lajdng down the general rule that if the bond 
 does not run counter to a statute, and is neither 
 malum prohibitum nor malum in se, it is bind- 
 ing upon all parties. And even though it run 
 counter to a statute in one or more of its provi- 
 sions, the bond is valid as to the others, pro\dd- 
 ing they are properly severable from those 
 which are invalid. (26 Op. Atty. Gen., 70, 72; 
 citing also U. S. r. Mora, 97 U. S., 421, and U. S. 
 V. Hodson, 10 Wall., 395.) 
 
 Having the right to take a bond in a case 
 where it is not required by statute, the Govern- 
 ment has the right to demand it from the officer 
 and to say to him that if he do not give it he 
 will not be continued in the office. Such a 
 demand, when complied with, does not amount 
 to the illegal exaction or extortion of the bond. 
 The case of a bond so prociu-ed differs radically 
 from a case in which a bond is extorted from a 
 reluctant officer with a condition therein con- 
 tained different from that which a statute calls 
 for. (Moses t;. U. S . , 166 U. S . , 571 . ) 
 
 The chief of an office in the War Department 
 has the power to designate one of the officers de- 
 tailed for service under him as a "property 
 and disbiu-sing officer," to whom shall belong, 
 as provided for in the order of such chief, the 
 custody of all Government property and funds 
 pertaining to the office; and such chief has the 
 power, under the general direction of the Secre- 
 tary of War, to provide that the property and 
 disbursing officer shall be responsible for the 
 due execution of his duties as such. Where in 
 such a case the Secretary of War directed the 
 property and disbursing officer so designated 
 to give bond as such officer, he thereby recog- 
 nized and in effect pro\'ided that there should 
 be such an office. A bond having accordingly 
 been given for such faithful performance, and 
 such officer having been guilty of the forgery of 
 vouchers and the embezzlement of public 
 moneys officially received by him, such con- 
 duct was a plain violation of his duty as such 
 officer, and the condition of the bond, as it 
 plainly covered such conduct, was \'iolated 
 thereby. (Moses v. U. S., 166 U. S., 571.) 
 
 "A distinction is drawn in this class of 
 cases between a bond compulsorily executed, 
 as in the case under consideration, and a bond 
 or other obligation voluntarily given to the Gov- 
 ernment for which there is no statutory author- 
 ity. In this latter case the bond has been held 
 to be valid." (Constable v. National Steam- 
 ship Co., 154 U. S., 51, 78.) 
 
 "The United States, for instance, as 
 incident to the general right of sover- 
 eignty, have the capacity, within the sphere 
 of their constitutional powers, and through the 
 instrumentality of the proper department, to 
 enter into contracts and take bonds, not pro- 
 hibited by law, and appropriate to the just 
 exercise of those powers, although not expressly 
 directed or authorized to do so by any legisla- 
 
 tive act. ' ' (Van Brocklin v. State of Tennessee, 
 117 U. S., 154.) 
 
 WTiere a bond given by an officer is objection- 
 able in point of form, the direction of the head of 
 the office to execute a new bond must be con- 
 sidered as that of the head of the department, 
 and the bond given in compliance therewitli 
 can not be considered as ha\T.ng been extorted 
 from the officer and his sureties contrary to stat- 
 ute. (Soule V. U. S., 100 U. S., 8.) 
 
 "Every one is presumed to know the 
 law. Ignorance standing alone can never be 
 the basis of a legal right. If a bond is liable to 
 the objection taken in this case and the jjarties 
 are dissatisfied, the objection should be made 
 when the bond is presented for execution. If 
 executed under constraint, the constraint will 
 destroy it. But where it is voluntarily entered 
 into, and the principal enjoys the benefits which 
 itisintended to secure, and a breach occurs, it is 
 then too late to raise the question of its validity. 
 The parties are estopped from availing them- 
 selves of such a defense. In such case there is 
 neither injustice nor hardship in holding that 
 the contract as made is the measure of the right 
 of the Government and of the liability of the 
 obligors." (U. S. v. Hodson, 10 Wall., 395, 409.) 
 
 Where a statute directs a bond to the Govern- 
 ment to be given by persons exercising certain 
 employments, and to be conditioned for the 
 performance of several particular acts which it 
 specifically states, and the agent of the Govern- 
 ment takes a bond conditioned , not in the spe- 
 cific way that the statute directed but for the 
 party's compliance with "aZZ the pro\T.sions" of 
 the act, ' ' and such other acts as are now or may 
 hereafter be in this behalf enacted," the bond, 
 if it has been voluntarily given, and is not con- 
 trary' to law or public policy, is valid as against 
 a party who has enjoyed benefits under it. 
 And this although the statute which required 
 the bond to be conditioned in a particular way 
 contain numerous other provisions which it 
 makes the duty of persons exercising employ- 
 ments under it to comply with, but for which 
 it does not contemplate the gi\'ing of any bond. 
 (U. S. V. Hodson, 10 Wall., 395.) 
 
 II. Necessity op Furnishing Bond Before 
 Entering upon Duty. 
 
 Requirement held to be mandatory. — 
 Where public officers are reciuired to give bond 
 previously to entering upon the execution of 
 their respective offices, held that they can not 
 execute their offices before giving bond, because 
 the bond is a preliminary to the execution. (5 
 Op. Atty. Gen., 687.) 
 
 Requirement held not mandatory. — 
 Where a statute required that pajnnasters in the 
 Ajmy "shall, previously to entering on the 
 duties of their offices, give good and sufficient 
 bonds to the United States, fully to account for 
 all moneys and public property wliich they may 
 receive, in such sum as the Secretary of War 
 shall direct," held that an officer's "appoint- 
 ment as paymaster was complete when his ap- 
 pointment was duly made by the President and 
 confirmed by the Senate. The giving of the 
 bond was a mere ministerial act for the security 
 of the Government, and not a condition prece- 
 dent to his authority to act as pav-master. 
 
 477 
 
Sec. 1383. 
 
 Pt. f. REVISED STATUTES. 
 
 The Navy. 
 
 Having received the public moneys as pay- 
 master, he must account for them as paymaster. ' ' 
 (U. S. r. Bradley, 10 Tet., 343, 3G4.) 
 
 Where a statute required an officer, "before he 
 enter upon the duties of his oflice," to give 
 bond: i/cW That the emoluments of the office 
 "were the considerations allowed him for the 
 execution of the duties of his office; and his 
 appi^intmcnt and commission entitled him to 
 receive this compensation, whether he gave 
 any security or not"; held, fur thrr, that he was 
 a de jure as well as a de facto officer prior to 
 furnishing bond. (U. S. v. Linn, 15 Pet., 290, 
 313.) 
 
 "When a person has been nominated to an 
 office by the President, confirmed by the Sen- 
 ate, and his commission has been signed by the 
 President, and the seal of the United States 
 affixed thereto, his appointment to that office 
 is complete. Congress may provide, as it has 
 done in this case, that certain acts shall be done 
 by the appointee before he shall enter on the 
 possession of the ofiice under his appointment. 
 These acts then become conditions precedent to 
 the complete investiture of the office; but they 
 are to be performed by the appointee, not by 
 the executive; all that the executive can do to 
 invest the person with his office has been com- 
 pleted when the commission has been signed 
 and sealed; and when the person has performed 
 the required conditions, his title to enter on the 
 possession of the office is also complete." (U. S. 
 V. Le Baron, 19 How., 73, 78.) 
 
 In view of former decisions (U. S. v. Bradley, 
 U. S. V. Linn, and U. S. v. Le Baron, above 
 noted), ' ' it can not be held that the execution by 
 Glavey of the bond required bj^ the act of 1882 
 was a condition precedent to his right to exer- 
 cise the functions of the office to which he was 
 appointed by the Secretary of the Treasury. 
 Congress did not so direct. His appointment 
 was complete, at least, when he took the re- 
 quired oath and transmitted e\'idence of the 
 fact to the Secretary. After taking the oath, 
 evidencing thereby his acceptance of the ap- 
 pointment, he was entitled to proceed in the 
 execution of the duties of his office, and became 
 liable for any failure to properly discharge 
 them." (Glavey v. U. S., 182 U. S., 595, 604. 
 In this case the statute did not require the bond 
 to be executed before entering on the duties of 
 the office.) 
 
 "^Mien an office with a fixed salary has been 
 created by statute, an appointment thereto is 
 complete when duly made by the President 
 and confirmed by the Senate, and the giving 
 of a bond required by law is a mere ministerial 
 act for the security of the Government, and 
 not a condition precedent to his authority to 
 act in performance of duties of the office. " 
 (Glavey v. U. S., 182 U. S., 595; see also U. S. 
 V. Eaton. 169 U. S., 331.) 
 
 The provisions of section 1383, Revised 
 Statutes, are directory only and do not pre- 
 clude a paymaster who has given bond and 
 whose bond has been approved from the receipt 
 of the pay of that office for a period prior to the 
 date of its approval (citing 4 Comp. Dec, 496). 
 There is, however, a separate general statute 
 (sec. 1560, R. S.) which does preclude assistant 
 paymasters of the regular naval service from 
 the receipt of pay prior to the date of the ap- 
 
 proval of their bond as assistant paymasters. 
 (Comp. Dec, Apr. 7, 1917, file 26254-2224:2.) 
 
 Pay commences prior to furnishing' 
 bond. — Pay of disl)urHing officers may com- 
 mence prior to furnishing bond^ — that is, upon 
 acceptance of appointment or entering upon 
 duty — the same as other officers, although 
 statute requires that said officers shall give bond 
 "before entering upon the duties of their re- 
 spective offices." (16 Op. Atty. Gen., 38; see 
 also U. S. V. Eaton, 169 U. S., 346; Glavey v. 
 U. S., 182 U. S., 595; U. S. v. Bradley, 10 Pet., 
 343; U. S. t;. Linn, 15 Pet., 290.) 
 
 The giving of a bond required by law by a 
 person appointed to an office is a ministerial 
 act, and not a condition precedent to the per- 
 formance of duty or to the right to compensa- 
 tion. (9 Comp. Dec, 101.) 
 
 Statutes which require that an officer shall 
 give a bond before entering upon the duties of 
 his office are directory only, and a receiver of 
 public moneys who after his appointment en- 
 tered ui)on the duties of his office prior to giviog 
 a bond, is entitled to the compensation of the 
 office from the date of his entry upon duty. 
 (20 MSS. Comp. Dec, 473; see also 4 Comp. 
 Dec, 496.) 
 
 [Prior to the above decisions, it was held by 
 the Comptroller of the Treasury that where 
 there are certain acts to be done by the ap- 
 pointee, as for instance the giving of a bond, 
 those acts are conditions precedent to the com- 
 plete investiture of the office, and accord- 
 ingly where a statute required an ofiicer to 
 give bond satisfactory to his chief, he was not 
 entitled to be paid for his services prior to the 
 date of approval of his bond by liis chief. (2 
 Comp. Dec, 26; see also 2 Comp. Dec, 330; 2 
 Comp. Dec, 448; and 3 Comp. Dec, 447.)] 
 
 Compensation can not be paid prior to 
 furnishing bond. — It has been repeatedly held 
 that officers are not entitled to salary or com- 
 pensation where they have failed to give the 
 bond required by a statute providing that such 
 bond shall be given before the officer "enters 
 upon the duties of his office. " In the case of 
 U. S. V. Eaton (169 U. S., 331), it was held that 
 the requirement as to giving bond by a consular 
 officer before entering upon the duties of his 
 office was directory, and in that case, where the 
 officer did actually give bond, he was entitled 
 to compensation for a period during which he 
 performed the duties of the office before his 
 official bond was received and approved. The 
 Comptroller has regarded this decision of the 
 Supreme Court as meaning that the statutory 
 provision is directory as to the time of perform- 
 ance merely; it is nowhere suggested in the 
 Eaton case t;hat the requirement as to the giving 
 of the bond was merely directory. All the pro- 
 visions of a statute are meant to be obeyed, or 
 they would not be enacted. Accordingly, held 
 that an officer who was appointed and took the 
 oath of office, but died before execution of bond 
 required to be given before entering upon duty, 
 was not entitled to an allowance of salary for the 
 period between the date of oath and his death, 
 notwithstanding that the failure to give bond 
 was dtie to his absence from the United States 
 when appointed, and his death prior to his 
 qualifying under such appointment, and not to 
 fault or neglect on his part. (15 Comp. Dec, 
 
 478 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1383. 
 
 418; citing 8 Comp. Dec, 201; compare 21 
 Comp. Dec, 49.) 
 
 In the case of Glavey v. U. S. (182 U. S., 595), 
 it was decided that an officer was entitled to 
 the salary of his office although he had failed 
 to execute an official bond; but in that case, 
 although the statute required that he should 
 "execute a proper bond," the bond itself 
 was to be "in such form and upon such condi- 
 tions as the Secretary of the Treasury may 
 prescribe," and there was no inhibition as to 
 his entering upon duty before giving such 
 bond. The bond was not given for the reason 
 that the Secretary of the Treasury failed to 
 prescribe the form of the bond or the condi- 
 tions thereof and did not require any bond of 
 the officer. It will be readily seen that the 
 law and facts in the Glavey case differ mate- 
 rially from those in a case where the statute 
 requires the bond to be given by the officer 
 before entering upon the duties of his office 
 and can not be construed to entitle the latter 
 officer to salary where he failed absolutely 
 to give a bond. (15 Comp. Dec, 418.) 
 
 "Where an officer was temporarily appointed 
 to a vacancy, but did not take the oath of 
 office nor give bond, and was subsequently 
 given a new appointment to the same position 
 for which he duly qualified : Held, That he was 
 not entitled to the salary of the office under 
 the first appointment until he had qualified by 
 taking the proper oath and gi\dng bond as 
 required by law; and that the fact that he had 
 qualified under the second appointment would 
 not prohibit him from subsequently qualifjing 
 under the pre\'ious appointment, it being 
 understood that he had accepted such pre\T.ous 
 appointment and immediately entered upon the 
 duties of the office thereunder. (17 Comp. Dec, 
 95; see also Comp. Dec, Jan. 30, 1917, file 
 26254-2189, regarding pay of Na\-y mail 
 clerks.) 
 
 An officer is not invested with the office 
 imtil he gives the bond required by law; nor 
 can he recover the salary of the office where 
 he has neglected to give bond. (Dainese v. 
 U. S., 15 Ct. Cls., 64.) 
 
 An appointee is not invested with an office 
 nor entitled to the salary thereof until he 
 complies with the conditions imposed by law, 
 such as taking the oath of office and gi\ing 
 bond, if one be required. (WilUams v. U. S., 
 23 Ct. Cls., 46.) 
 
 Compensation of naval ofl3.cer com- 
 mences upon date of approval of bond. — 
 The pay of a naval officer required to give 
 bond commences upon original entry into the 
 service upon date of approval of his bond. 
 (Sec. 1560, R. S.) 
 
 The Nav-y Regulations provide that, when 
 an officer is required to give bond, "his pay 
 shall begin upon the date of approval of his 
 bond by the Secretary of the ^*a\-y, provided 
 he has already accepted his appointment and 
 taken the oath of office" (Art. R-4416, Navy 
 Regs., 1913); but "an officer of the Pay Corps, 
 when promoted, is entitled to increased pay 
 from the date of his promotion, his bond in the 
 lower grade being binding until his new bond 
 in the higher grade is approved " (Art. R-4418, 
 Navy Regs., 1913, as amended by C. N. R. 7, 
 Sept. 15, 1916). 
 
 There is no statute requiring the pay of an 
 assistant paymaster on his advancement to the 
 rank of lieutenant (junior grade) to commence 
 from the date of the approval of his bond. 
 (Comp. Dec, Apr. 7, 1917, file 26254-2224:2.) 
 
 "^Tiile section 1383, Revised Statutes, is direc- 
 tory only, and does not preclude a paymaster 
 who has given bond and whose bond has been 
 approved, from the receipt of the pay of that 
 office for a period prior to the date of its ap- 
 proval, section 1560, Revised Statutes, does 
 preclude assistant paymasters of the regular 
 naval service, in common v^ith all other regular 
 naval officers, from the receipt of pay prior to 
 the date of the approval of their bond. The 
 same law is made applicable to assistant pay- 
 masters on their original entry into the Naval 
 Reserve Force, and the pay of the latter is like- 
 wise prohibited from beginning prior to the 
 date of the approval of their bond, (Comp. Dec,, 
 Apr. 7, 1917, file 26254-2224:2; see also Comp. 
 Dec, Apr. 14, 1917, file 26254-2222:1.) 
 
 Section 1560, Revised Statutes, as applied to 
 the Naval Reserve Force, relates to the original 
 entry of a Naval Reserve officer into the Naval 
 Reserve Force; the fact that the officer origi- 
 nally entering that force had pre\iously served 
 in the Na^y would not differentiate him from 
 one who had entered it without previous naval 
 service. (Comp. Dec, Apr. 30, 1917, file 26254- 
 2224:5.) 
 
 Should a fonner officer be reappointed to the 
 regular naval service as a passed assistant pay- 
 master or paymaster, directly from civil life, 
 he would come within the piu^iew of section 
 1560, and his pay would be, by that section, 
 precluded from commencing from a date prior 
 to that of the approval of his bond. (Comp. 
 Dec, Apr. 30, 1917, file 26254-2224:5.) 
 
 The payment of compensation to an officer 
 of the Navy upon his original entry into the 
 service, for a period from the date he accepted 
 his appointment until the date his bond was 
 approved by the proper authority, is in viola- 
 tion of section 1560, Revised Statutes. The 
 evident object of that section is to protect 
 the Government by insuring the giving of the 
 required security in handling the public funds. 
 Before approval of his bond the officer is in 
 a status similar to that of a de facto officer, as 
 he is not fully qualified as an officer de jure. 
 Where, therefore, he has been paid his salary" 
 under the circumstances stated, he is entitled 
 to retain same, itappearing that he subsequently 
 gave bond a few days before his discharge from 
 the service took effect. (18 Comp. Dec, 596.) 
 
 ^Tiere a candidate for appointment as 
 assistant paymaster in the Navy after his 
 commission has been issued but prior to its 
 receipt by him and prior to receipt of notice 
 by him that he had been commissioned and 
 prior to accepting the office or taking the oath 
 of office or entering upon duty, executed^ an 
 official bond in anticipation of his appoint- 
 ment: Held, That under section 1560, Revised 
 Statutes, and the Navy regulations pursuant 
 thereto, he was not entitled to pay prior to the 
 date of his acceptance of the appointment 
 and taking the oath of office. (19 Comp. Dec, 
 358.) 
 
 The appointment as a temporary assistant 
 paymaster of an acting pay clerk, temporarj-. 
 
 479 
 
Sec. 1383. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 who. as sucli actinp; pay clerk had given a bond 
 for $5,000, was not. an original entry into the 
 BL-rvice within the meaning of section 1560, 
 Revised Statutes, but was substantially a pro- 
 motion, and he is entitled to })ay as assistant 
 paymaster prior to approval of his bond as 
 such. (25 Comp. Dec, 550; compare 24 Comp. 
 Dec, 650.) 
 
 Date of bond. — "Every bond shall bear 
 date even with or subsequent to the date of the 
 commission or appointment." (Art. 1-3903, 
 Naval Instructions, 1913.) 
 
 "Every bond shall bear date even with or 
 prior to that of the affidavits of the sureties and 
 to that of the certificates as to their sufficiency." 
 (Art. 1-3904, Naval Instructions, 1913.) 
 
 III. Date from which Bond Takes Effect 
 
 From date of delivery. — "A bond may 
 not be a complete contract until it has been 
 accepted by the obligee; but if it be delivered 
 to him to be accepted if he should choose to do 
 so, that is not a conditional delivery, which 
 will postpone the obligor's undertaking to the 
 time of its acceptance, but an admission that 
 the bond is then binding upon him and will be 
 BO from that time, if it shall be accepted. 
 When accepted, it is not only binding from 
 that time forward, but it becomes so upon both 
 from the time of delivery. This is the offer 
 which the obligor makes when he hands the 
 bond to the obligee, and in that sense the 
 obligee received it." (Broome v. U. S., 15 
 How., 143, 153. In this case the statute did 
 not require the officer to give bond before enter- 
 ing upon duty, but within three months there- 
 after.) 
 
 It is not necessary that the bond be handed 
 to the officer charged with its approval. It 
 may be handed to an agent appointed by that 
 officer to receive it, or it may be put into the 
 possession of any person to deliver it, or it may 
 be transmitted by mail. If done in any one of 
 these ways, it is a delivery from the moment 
 that the collector and his sureties part with it. 
 It is from that moment in the course of trans- 
 mission, wdth the intention that the law may 
 act upon it through the agency of the approving 
 officer, and his subsequent approval is an ac- 
 ceptance with relation to the time beginning 
 the transmission. A written acceptance dated 
 after a delivery is not to be taken as the time 
 from which the completeness of the contract 
 is to be computed ; but such an acceptance has 
 a relation to the time of delivery, making that 
 time the beginning of its obligation upon the 
 parties to the bond . (Broome -y . U . S . , 15 How . , 
 143.) 
 
 "The possession of the bond by the Treasury 
 Department was prima facie evidence of de- 
 livery." (Duncan v. U. S., 7 Pet., 435, 447.) 
 
 The general rule of law is that. Like a deed, 
 an official bond becomes operative from the 
 date of its delivery. In the absence of evi- 
 dence to the contrary, the delivery wiU be 
 presumed to have been made on the day of 
 its date. But where it is pro\'ided by statute 
 that the official bond to be given by an officer 
 shall be approved by another officer, other 
 considerations arise. In Broome v. United 
 States [above noted] it was held that an official 
 
 bond, when aiccepted, is binding from the time 
 of its delivery; but in that case the statute 
 provided that the officer should give bond 
 ' ' within three months after he enters upon the 
 execution of the duties of his office"; and in 
 United States v. Le Baron [noted below] the 
 court distinguished this case from one where 
 no time is allowed after entering upon the 
 duties of the office for giving the bond required 
 by law, and held that in the latter case the bond 
 speaks only from the time of its accept- 
 ance and "can not be intended to relate 
 back to any earlier date." But in Glavey v. 
 United States (182 U. S., 595) the court, after 
 reviewing prior decisions, including United 
 States V. Le Baron, held that the giving of an 
 official bond required by law to be given by an 
 officer is a mere ministerial act for the secm-ity 
 of the Government, and not a condition prece- 
 dent to his authority to act in the performance 
 of the duties of his office. "I think, therefore, 
 the principle enunciated in Broome v. United 
 States, supra, that when a bond is accepted 
 it becomes binding from the time of delivery 
 must be regarded as controlling. This princi- 
 ple is sometimes expressed in different lan- 
 guage, it being held that a subsequent approval 
 of an official bond must be deemed to relate 
 back to the time the bond was delivered for 
 approval." (14 Comp. Dec, 428; compare 17 
 Comp. Dec, 86, noted below, under "Intention 
 of parties controlling.") 
 
 From date of approval. — "The bond of 
 an officer of the Pay Corps takes effect from 
 the date of its approval by the Secretary of 
 the Navy." (Art. R-3002 (3), Navy Regs. 
 1913.) 
 
 In Broome v. United States [noted above] it 
 was held that a bond may be deemed to be de- 
 livered when it is put in course of transmission 
 to the officer whose duty it is to examine and 
 approve or reject such bonds. But this de- 
 cision proceeded upon the ground that the act 
 of Congress there under consideration allowed 
 the officer to exercise his office for three months 
 without a bond; and that consequently the 
 approval and delivery were not necessarily 
 simultaneous acts, nor need the approval pre- 
 cede the delivery; and the distinction was ad- 
 verted to between the case then presented and 
 one in which the statute required the officers to 
 give bond with approved security on their ap- 
 pointment, and allowed them no time, after 
 entering on their offices, to comply with this 
 requirement. In the latter case the bond must 
 be accepted by the head of the department as 
 sufficient in point of amount and security before 
 it can have any effect as a contract; otherwise 
 the officer might enter on the office merely on 
 giving a bond which, on its presentation, the 
 head of the department might reject as insuffi- 
 cient. In other words, the person appointed 
 might act without any operative bond, which 
 was not intended by Congress. The purpose of 
 the surety was to become security for one 
 legally authorized to exercise the office, not for 
 one who entei'S on it unlawfully because he 
 failed to comply with the requirement to fur- 
 nish an approved bond; and this purpose can 
 be accomplished only by holding that the ap- 
 pointee can not act, and the bond can not take 
 effect, until it is approved. Our opinion is, 
 
 480 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1383. 
 
 therefore, that this bond speaks only from the 
 time when it reached the head of the depart- 
 ment and was accepted by him; that until that 
 time it was only an offer or proposal of an obh- 
 gation which became complete and effectual by 
 acceptance; and that, unlike the case of an 
 officer's bond which is not a condition precedent 
 to his taking office and which may be intended 
 to have a retrospective operation, the bond in 
 this case can not be intended to relate back to 
 any earher date than the time of its acceptance, 
 because it is only after its acceptance that there 
 can be any such holding of the office as the bond 
 was meant to apply to. (U. S. v. Le Baron, 
 19 How., 73; compare Glavey v. U. S., 182 
 U. S., 595, and 14 Comp. Dec, 428, noted above, 
 under "From date of dehvery.") 
 
 The officer was required by law to give bond 
 before entering upon the duties of his office. 
 According to the principles laid down in the 
 case of United States v. Le Baron, a bond given 
 under that provision must be considered to 
 speak and to take effect, not from the day of 
 its date, but from the date upon which it was 
 approved. (14 Op. Atty. Gen., 7.) 
 
 ■'It is settled that a bond of that character 
 takes effect on the date of acceptance, and it is 
 from that time it speaks." (Moses v. U. S., 166 
 U. S., 571, citing U. S. v. Le Baron, 19 How., 
 73 and 4 Wall., 642. 647.) 
 
 For cases as to what constitutes approval, see 
 below, "VI. Approval of Bond." 
 
 Intention of parties controlling. — WTiere 
 the bond is tendered under such circumstances 
 as to show that it is intended, if accepted, to be 
 effective from its date, it relates back, when 
 accepted, to its date. '\Miere. however, it is 
 executed under such circumstances as to show 
 that it is tendered as an offer of an obligation 
 to take effect when approved, it neither relates 
 back nor is completely executed until ap- 
 proved. In such case the date of approval will 
 be taken as the date of final deliveiy, and all 
 accounts under such bond should be started by 
 taking that as the date of delivery. (17 Comp. 
 Dec, ^86.) 
 
 It is not ordinarily a prerequisite to the legal 
 holding of an office that a bond be approved 
 when a person enters upon the duties of his 
 office. A bond afterwards given may relate 
 back to his entry upon office, or may be effec- 
 tive from the time it was delivered, or when it 
 was approved, or when he entered upon office, 
 depending upon the circumstances of its exe- 
 cution. (17 Comp. Dec, 86.) 
 
 The liability upon a renewal bond in some 
 instances commences when it is delivered, in 
 other instances when it is approved. No in- 
 flexible rule can be laid down covering all 
 cases as to when the liabilitj' of one bond ceases 
 and when the other commences. These are 
 questions of law, in no way depending upon 
 the convenience of the auditors in stating 
 accounts under them. Q7 Comp. Dec, 86.) 
 
 The presumption that delivery was made on 
 the date of the bond would not obtain where it 
 was clear that the delivery of the bond was a 
 mere offer, or was intended as an escrow. In 
 Buch case it could only become operatiA-e from 
 its date by relating back to the time of its exe- 
 cution. (17 Comp. Dec, 86.) 
 
 May be made retroactive. — A bond volun- 
 tarily given by an officer of the United States 
 for the faithful discharge of the duties of his 
 office, under a statute requiring such officers 
 to give bond "for the faithful discharge of the 
 duties of their respective offices," may be 
 worded so as to operate retroactively. Such a 
 bond does not contain provisions or conditions 
 differing from or in any wise inconsistent with 
 those prescribed or required by law. (29 Op. 
 Atty. Gen., 28.) 
 
 The manifest purpose and intent of the law 
 is that the United States shall be fully secured 
 for the faithful discharge by public officers of 
 their duties, and therefore it is in entire con- 
 formity with the purpose of the act to require 
 that a bond given by such an officer shall cover 
 his entire term. It frequently occurs, however, 
 that the public interests require that an officer 
 enter upon the discharge of his duties before 
 he is able to give the requisite bonds, or, as the 
 statute contemplates, a new bond may be 
 necessary in order to increase or strengthen 
 existing bonds. To hold, therefore, that in 
 such a case the bond could not be made to 
 cover his prior ser\-ice, even if voluntarily 
 given, would be to say that the statute requires 
 the Government to go unprotected to that ex- 
 tent. Such a view is contrary to sound princi- 
 ples of public policy, and is not required by 
 any consideration of justice or protection to 
 the official who gives the bond. (29 Op. Atty. 
 Gen., 28.) 
 
 Where an officer was temporarily appointed 
 to a vacancy, but did not take the oath of office 
 nor give bond, and was subsequently given a 
 new appointment to the same position, for 
 which he duly qualified: Held, That the fact 
 that he had qualified under the second ap- 
 pointment would not prohibit him from sub- 
 sequently qualifying under the pre\-ious ap- 
 pointment by taking the proper oath and giv- 
 ing bond as required by law, it being imder- 
 stood that he had accepted such previous ap- 
 pointment and immediately entered upon the 
 duties of the office thereunder. (17 Comp. 
 Dec, 95.) 
 
 IV. Form of Bond. 
 
 In general. — In the case of some officers 
 the form of bond is prescribed by statute (e. g., 
 see sec. 2619, R. S.. as amended by act Feb. 
 27, 1877, chap. 69, secl,]9 Stat., 245). In the 
 case of other officers, the form of the bond, by 
 express terms of the statute requiring it, is to 
 be prescribed by or to be subject to the ap- 
 proval of the President, head of department, 
 or other officer named therein (e. g., see sec. 
 1697, R. S.). In most cases, however, where 
 offiical bonds are reqiiired, the form thereof is 
 tacitly or impliedly left by Congress to be regu- 
 lated or fixed by the officers by whom the bonds 
 are to be approved. Section 1383, RoAdsed 
 Statutes, belongs to this class of cases (18 Op. 
 Atty. Gen., 274). 
 
 Must be under seal. — "The term bond, 
 ex vi termini, imports a sealed instrument, and, 
 as a general rule, independent of any statute 
 proA-iding otherwise, sealing is neces.sary to 
 constitute a perfect bond. * * * The seal 
 is not a mere formality of execution, but a mat- 
 
 481 
 
Sec. 1383. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 ter of substance which gives to the paper cer- 
 tain lofral effects which cannot be attached to 
 an unsealed paper. * * *" (26 Op. Atty. 
 Gen., 507.) 
 
 Where an act of Congi-ess directs the security 
 to be taken by bond, an instrument not under 
 seal was not a bond and was not in form the 
 instrument required by the act of Congress. 
 (U. S. V. Linn, 15 Pet., 290; see also Moses v. 
 U. S.,166U.S.,571;U.S. t'.Linn.,inow.,104.) 
 
 ^Tiere the bond sued on had no seal opposite 
 the name of one of the oblitrors, and there was 
 no e\'idence that he had adopted the seal of 
 any of the other parties to the instrument, it 
 was held that the mstniment was not his bond, 
 because in fact there was no e\ddence of any 
 seal belonging to him ever having been affixed, 
 and no siu'h seal was on the instrument when 
 it was produced on the trial. (Moses v. U. S., 
 166 U. S., 571,582.) 
 
 Bonds must be sealed, and for abundant 
 caution they should be sealed with wax or 
 wafer and paper cap, which are everywhere 
 acknowledged to be seals; although scrolls or 
 any other sealing would be valid wliich is a 
 good sealing in the place where they are exe- 
 cuted. (2 Op. Atty. Gen., 93.) 
 
 "Seals of wafer or wax shall be attached to 
 the bond at the place indicated, opposite the 
 places for the signatures of the principal and 
 Biireties." (Art. 1-3905, Naval Instructions, 
 1913.) 
 
 " In all cases where a seal is necessary by law 
 to any commission, process, or other instrument 
 provided for by the laws of Congress, it shall be 
 lawful to affix the proper seal by making an 
 impression therewith dii'ectly on the paper to 
 whjch such seal is necessary; which shall be as 
 valid as if made on wax or other adhesive sub- 
 stance." (Sec. 6, R. S.) 
 
 In an action on an official bond, although 
 the copy of the bond sued on, which was certi- 
 fied from the Treasury Department of the 
 United States, exhibited a scroll instead of a 
 seal, it may be presumed that the original bond 
 had been executed according to law. (Dun- 
 can V. U. S., 7 Pet., 435.) 
 
 A corporation may adopt for the purpose and 
 use a seal other than its corporate seal on a bond 
 so as to make the bond a corporate deed of the 
 corporation. An agent of a corporation, ap- 
 pointed by an instrument under the corporate 
 seal of the corporation, may on its behalf adopt 
 a special seal so as to make it, in executing the 
 purpose for which he was appointed, the cor- 
 porate seal of the corporation. (26 Op. Atty. 
 Gen., 507.) 
 
 For other cases, see below "Alteration of 
 bond." 
 
 May be valid instrument although not 
 under seal. — Although an unsealed instru- 
 ment purporting to be an official bond is not a 
 "bond" and does not meet the statutory 
 requirement, nevertheless held that such 
 instrument was good at common law. The 
 actual difference between an instrument under 
 seal and one not under seal is that in the one 
 case the seal imports a consideration and in the 
 other it must be proved. There ought to be 
 some very strong grounds to authorize a court 
 to declare a contract absolutely void which 
 has been voluntarily made upon a good con- 
 
 sideration and delivered to the party for whose 
 benefit it was intended. The mere want of 
 seals is not such a departure from the statute 
 as to warrant the court, upon any supposed 
 principles of public pohcy, to pronounce the 
 iuKtrimient utterly void; it being good at com- 
 mon law, and given in furtherance of the great 
 object of the statute, and as security for the 
 faithful discharge of the duties required of the 
 office. (U. S. V. Linn, 15 Pet., 290.) 
 
 "The United States v. Linn was an action 
 against a receiver of public moneys and his 
 sureties. The statute in that case required 
 that the receiver should 'give bond, with 
 approved security, in the sum of ten thousand 
 dollars, for the faithfiil discharge of his trust.' 
 The instrument given was without seal, and 
 was, therefore, not the security required by 
 the statute. The counsel for the defendants 
 insisted that the instrument was void for the 
 reasons, among others, that it was not the form 
 of security required by the statute; that the 
 prescribing of one security was an implied 
 prohibition of all others; and that if the instru- 
 ment in question could be sustained, the 
 statute might in all cases be disregarded and a 
 mortgage of realty or personalty or any other 
 imaginable security might be substituted for 
 that which the statute required. The court 
 responded: 'If this is a contract, entered into 
 by competent parties and for a lawful purpose, 
 not prohibited by law, and is founded upon a 
 sufficient consideration, it is a valid contract 
 at common law. A mortgage, or any other 
 approved security voluntarily given, would no 
 doubt be vaUd.' " (U S. v. Hodson, 10 Wall., 
 395, 408.) 
 
 Names of parties. — The law recognizes but 
 one Christian name; hence the bond with 
 siu-eties, and the oath of office of a receiver of 
 public moneys, subscribed "Benjamin F. 
 Edwards," where the commission had issued 
 to "Benjamin Edwards," are valid. (2 Op. 
 Atty. Gen., 332.) 
 
 "A mistake in the baptismal name of an 
 obligor to abend, executed by his attorney didy 
 authorized to execute a bond in his right name, 
 does not ^dtiate the bond, the error being shown 
 to be purely accidental." (Dolton -y. Cain, 14 
 Wall., 472.) See 9 Op. Atty. Gen., 128, holding 
 that a bond, to be accepted by the Govern- 
 ment, ought to be executed by the parties, 
 and not by their attorney. 
 
 ^Vhere the statute requires the giving of 
 seciu-ity to seciire payment "to the Treasurer 
 of the United States," this does not mean that 
 the bond should be made payable to the Treas- 
 urer of the United States; it may be made pay- 
 able directly to the United States and con- 
 ditioned that payment shall be made to the 
 Treasurer and not depart from any express 
 provision of the law. But if the statute should 
 be construed to mean that the bond shall be 
 payable to the Treasurer, still we are of opinion 
 that a bond in which the Uiuted States is the 
 obligee, and which is conditioned that payment 
 shall be made to the Treasiu-er, is a valid and 
 binding obligation. The authorities show 
 that the United States can, without the au- 
 thority of any statute, make a valid contract, 
 and that when the form of a contract is pre- 
 scribed by the statute a departure from its 
 
 482 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1383. 
 
 directions will not render the contract invalid. 
 The bond is good at common law. (Jessup 
 V. U. S., 106 U. S., 147.) 
 
 Where the United States of America are the 
 obligees, a misdescription of the incorporate or 
 political name in the bond by calling them 
 "United States of North America" furnishes 
 no valid ground of exception, there being an 
 averment of identity in the declaration. 
 (U. S. V. Bradley, 10 Pet., 343.) 
 
 Witnesses. — The attestation of witnesses to 
 a bond is merely for convenience of proof. 
 The law does not requii'e such witnesses, but 
 it is expedient and safe always to require them. 
 (17 Op. Atty. Gen., 285.) 
 
 No attestation is necessary to their validity, 
 although witnesses may be useful and con- 
 venient to make proof of handiATiting in case 
 of necessity. (2 Op. Atty. Gen., 93.) 
 
 Acknowledgment. — "An acknowledgment 
 is the act of one who executes a deed on going 
 before some competent officer or court and de- 
 claring it to be his act and deed. The functions 
 of an acknowledgment are twofold, to authorize 
 the deed to be given in e'vidence without f lu^ther 
 proof of its execution, and to entitle it to be 
 recorded. * * * Bonds differ from deeds 
 in that the former are not required to be re- 
 corded. For that reason, no acknowledgment 
 as to them is, in my opinion, necessary." 
 (26 Op. Atty. Gen., 507.) 
 
 Certificate of sufficiency. — There is no law 
 requiring a United States judge or a United 
 States attorney to certify as to the sufficiency 
 of guarantors or bondsmen, and no fees are 
 chargeable against the Government for such 
 sei-vice. (19 Op. Atty. Gen., 181. See below 
 "Expense of fiunisliing bond," under "X. 
 Miscellaneous.") 
 
 Where the law then in force required the 
 bond of a purser in the Xa\-y to be approved 
 by the judge or attorney for the United States 
 of the district in which the purser resided, 
 it was held that to save the necessity of 
 proof on this subject, the residence should be 
 expressed in the body of the instrtiment; 
 held, further, that the certificate of the district 
 attorney approving the sureties is, to all sub- 
 stantial purposes, an approval of the bond. 
 (2 0p. Atty. Gen., 93.) 
 
 Where the law required that the sureties on 
 a naval officer's bond shall be approved by the 
 judge or attorney for the United States of the 
 district in which such naval officer shall reside, 
 it was held that the certificate of a district at- 
 torney was sufficient although he did not use 
 the word "approved," which was used in the 
 statute; but his certificate that the sureties 
 were "good and sufficient" was, to all substan- 
 tial purposes, an approval. (2 Op. Atty. Gen., 
 -93.) 
 
 By Naval Instructions, 1913 (art. 1-3910), 
 it is pro\'ided that "the sufficiency of the 
 sureties shall be certified to by a judge or a 
 clerk of a United States court for the district 
 in which the sureties reside, or by a United 
 States attorney for such district." 
 
 [Theact of March 1,1817, chapter 24, section 1, 
 3 Stat., 350, which is one of the statutes cited 
 by the revisers in their note to section 1383, pro- 
 vided that the sureties on bonds of naval offi- 
 cers "shall be approved by the judge or attor- 
 
 ney for the United States, for the district" in 
 wliich such naval officers shall reside. How- 
 ever, this provision of the original law was not 
 embodied in the Revised Statutes, and was 
 therefore repealed by section 5596, Revised 
 Statutes. In this connection see below, "Re- 
 newal of bonds," under "V. Sufficiency of 
 Sureties.''] 
 
 Temporary appointment. — AMiere a tem- 
 porary appointment of an officer has been made 
 by the President, the recital in the official 
 bond should be in conformity with the nature 
 of the appointment. (9 Op. Atty. Gen., 53.) 
 
 Parties jointly and severally bound for 
 full amount. — The form of bond required to 
 be given by a public officer — whether the par- 
 ties thereto are to be jointly and severally or 
 may be only jointly bound, and whether each 
 surety is to bind himself for the full amount 
 of the penalty or may restrict his liability to 
 a less amount — where not made the subject 
 of statutory regulation is left to the determina- 
 tion of the officers by whom the bond is to be 
 approved. (18 Op. Atty. Gen., 274.) 
 
 The form ordinarily made use of in practice 
 is that wherein the principal and sureties are 
 jointly and severally botmd for the full amount 
 of the penalty. _ (18 Op. Atty. Gen., 274.) 
 
 This form being preferable to any other, and 
 its use sanctioned by long practice, the adop- 
 tion of a different form, though it may not be 
 inconsistent with the terms of the statute so 
 to do, would not be warranted unless the cir- 
 cumstances of the particular case were such 
 that the public interests could not otherwise 
 be ser\^ed. (18 Op. Atty. Gen., 274.) 
 
 Departure from statutory form. — "The 
 authorities show that the United States can, 
 without the authority of any statute, make a 
 valid contract, and that when the form of a 
 contract is prescribed by the statute, a depar- 
 tiu"e from its directions will not render the 
 contract invalid. The bond is good at com- 
 mon law." {19> Op. Atty. Gen., 458,460, quot- 
 ing Jessup V. U. S. 106 U. S., 152; see also 
 to same effect 26 Op. Atty. Gen., 70, 72, citing 
 Moses V. U. S., 166 U. S., 571, and U. S. v. 
 Dieckerhoff, 202 U. S., 302.) 
 
 Nothing but very strong and express lan- 
 guage should induce a court of justice to adopt 
 the interpretation that a bond taken in a form 
 not prescribed by the statute, because of 
 mutual mistake or accident and wholly without 
 design, should be utterly void; it would be a 
 very mischievous interpretation of the act to 
 suppose that it intended such consequence. 
 (U. S. V. Bradley, 10 Pet., 343; U. S. v. Linn, 
 15 Pet., 290.) 
 
 The case of United States v. Bradley 1 10 Pet., 
 343, 365), holding that bonds not taken in the 
 prescribed form are not titterly void, "has been 
 frequently sustained by the Supreme Court, 
 and was ( ited as the law in the case of Jessup r. 
 The United States (106 U. S., 151), where a 
 number of the decisions of the Supreme Court 
 upon this question are re\dewed. The decisions 
 of the Supreme Court sustaining the validity of 
 bonds executed under directory statutes, 
 where mistakes and omissions have occurred 
 therein, are as follows: Jessup v. United States 
 (106 U. S , 147), United States v. Mora (97 U. S., 
 421), United States v. Bradley (10 Pet., 362), 
 
 483 
 
Sec. 1383. 
 
 Ft. 2. RE VISED STAT UTES. 
 
 The Navy. 
 
 Farrar r. The United States (5 Pet., 373)." (18 
 Op. Atty. Gen., 458.) 
 
 where a statute expressly requires a public 
 odirer to give l)ond for the fail hlul disbursement 
 of public money, and in the bond given the 
 words which relate to disbursement are omitted, 
 and the only words inserted are "that lie shall 
 faithfully discharge the duties of his office," 
 held that, ''the court feel no difficulty in main- 
 taining, that where the conditions are cumula- 
 ti\'e, the omission of one condition can not in- 
 validate the bond, so far as the other operates 
 to bind the party." (Farrar v. U. S., 5 Pet., 
 373.) 
 
 " It is a settled principle of law that where a 
 bond contains conditions, some of which are 
 legal and others illegal, and they are severable 
 and separable, the latter may be disregarded 
 and the former enforced." (U. S. v. Hodson, 
 10 Wall., 395, 408.) 
 
 In a case where the statute specified the pre- 
 cise form of the bond to be given by certain 
 public officers (sec. 2619, R. S.), and certain 
 words prescribed by the statutory form were 
 omitted in the bond furnished, held that "the 
 statute authorizing the execution of the bond 
 is a directory one," and that '"the omission of 
 the words as stated does not impair the valid- 
 ity" of the bond, but that the bond is a valid 
 one, "either under the statute or at common 
 law." (18 Op. Atty. Gen., 458.) 
 
 When the legal effect of an official bond is 
 questionable, it should be rejected. (9 Op. 
 Atty. Gen., 263.) 
 
 For other cases, see below, "VII. Condition 
 of Bond." 
 
 Alteration of bond. — If any material 
 change is made in a bond subsequent to its exe- 
 cution, the instrument is thereby rendered 
 void, unless it can clearly be shown that after 
 the change the parties assented to it and still 
 acknowledge the signing and sealing to be their 
 act. (17 Op. Atty. Gen., 285.) 
 
 "A party who claims under an instrument 
 which appears on its face to have been altered, 
 is bound to explain the alteration; but not so, 
 when the alteration is averred by the opposite 
 party, and does not appear upon the face of the 
 instrument." (U. S. v. Linn, 1 How., 104.) 
 
 An obligation to the United States, duly 
 signed by the sureties, was presented to the 
 proper Government official and rejected by 
 Yam as lacking seals; it was taken away by the 
 print ipal and returned -with proper seals. Held, 
 That it will be presumed, in the absence of proof 
 to the contrary, that the sureties consented to 
 the seals being attached. (Moses v. U. S., 166 
 U. S., 571.) 
 
 An erasure and interlineation in a bond, in- 
 creasing the amount of the penalty, does not 
 invalidate that instrument or impair its legal 
 effect if in fact it was made prior to its execu- 
 tion. (17 Op. Atty. Gen., 285.) 
 
 WTiether an instrument that was produced on 
 the trial and had no seals attached to it, had 
 had them attached when the instrument was 
 originally executed, many years prior thereto, 
 has been held to be a question of fact which 
 should be submitted to the jury. (Moses v. 
 U. S., 166U. S., 571.) 
 
 After a bond had been signed by the obligors, 
 the omission of seals to the signers of the instru- 
 
 ment was noted; thereupon one of tlie obligors 
 took a pen and added scrolls by way of seals 
 to each name subscribed as makers of the in- 
 strument. Held, That "the adding of the 
 scroll by Linn to his own name did not vitiate 
 the instrument as to him; he had a right to 
 add the seal, or at least he can have no right 
 to set up his own act in tliis respect to avoid 
 his own deed. It was therefore his deed, and 
 the plea of non est factum as to him is false." 
 (U. S. r. Linn, 1 IIow., 104, 107.) 
 
 Where a commissary general of the Anny 
 had omitted, through mistake, to sign his ofli- 
 cial bond, but had deUvered it to the proper 
 department signed only by the sureties, such 
 bond is probably incurably defective as a 
 statutory bond, though perhaps it may avail 
 as a bond at common law. Advised that it be 
 returned to be signed by the officers, and at- 
 tested specially in the form prescribed by the 
 Attorney General. This might have the de- 
 sired effect. At all events, it would not im- 
 pair the obUgation of the bond as to those who 
 signed it at the proper time, whatever that 
 obligation might be ; and it would be obligatory 
 on the principal, at least from the time of its 
 execution by him, which is all that could be 
 effected by an original bond now executed by 
 him. (5 Op. Atty. Gen., 718; but see above, 
 "III. Date from Which Bond Takes Effect.") 
 
 V. Sufficiency of Sureties. 
 
 Certificate of snfllciency. — See above, 
 under "IV. Form of Bond," and see below, 
 "Renewal of bonds." 
 
 Married woman as surety. — " In case a 
 married woman be offered as surety, an addi- 
 tional certificate shall be required to the effect 
 that such surety holds her property in her own 
 right, and is competent to bind herself as surety 
 in such cases, under the laws of the State in 
 which she resides." (Art. 1-3910, Naval In- 
 etructions, 1913.) 
 
 In determining whether or not a married 
 woman is competent to contract as surety on a 
 bond, it is first necessary to determine whether 
 the contract is to be considered as a contract 
 made in the State where she signed or in the 
 District of Columbia, as the laws of the State 
 and of the District of Columbia may be dif- 
 ferent in regard to the capacity of married 
 women to make contracts. Upon this point, 
 held that the place of contract must be con- 
 sidered at Washington, D. C. Although the 
 bond was actually signed in Missouri, it was 
 there executed imperfectly and only with the 
 intention that it should be delivered in Wash- 
 ington and there acquire its vaUdity. This 
 view of contracts made elsewhere and yet in- 
 tended to have force and effect at Washington 
 ia maintained in the cases of Cox v. United 
 States (6 Pet., 172) and Duncan v. The United 
 States (7 Pet., 435). The validity of her con- 
 tract is therefore to be decided by the law pre- 
 vailing in the District of Columbia. (15 Op. 
 Atty. Gen., 472, holding that, under the laws 
 of the District of Columbia a married woman 
 can not bind her separate property as surety 
 on a bond. See sec. 1155, D. C. Code.) 
 
 A bond would not be rendered invaUd by 
 reason of the fact that one of the sureties was 
 
 484 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1383. 
 
 the wife of the principal, even if she were not 
 competent to contract. It would still be a 
 sufficient contract as against the other surety 
 or sureties who might be upon it. (15 Op. 
 Atty. Gen., 472.) 
 
 "The wife of a principal shall not be 
 accepted as a surety." (Art. 1-3907, Naval 
 Instructions, 1913.) 
 
 For other cases, see below, "VIII. Conflict 
 of Laws." 
 
 Surety induced to execute by misrepre- 
 sentation. — A bond perfect upon its face, 
 apparently duly executed by all whose namea 
 appear thereto, purporting to be signed and 
 delivered and actually delivered without a 
 stipulation, can not be avoided by the sureties 
 upon the ground that they signed it on a condi- 
 tion that it should not be delivered unless it 
 was executed by other persons who did not exe- 
 cute it, where it appears that the obligee had no 
 notice of such condition and there was nothing 
 to put him upon inquiry as to the manner of its 
 execution, and that he had been induced upon 
 the faith of such bond to act to his own preju- 
 dice. (Dair v. U. S., 16 Wall., 1.) 
 
 In any case, if the bond is so written that it 
 appears that several were expected to sign it, 
 the obligee takes it with notice that the obligors 
 who do sign it can set up in defense the want of 
 execution by the others, if they agreed to be- 
 come bound only on condition that the other 
 cosureties join in the execution. (Dair v. U. S. , 
 16 Wall., 1, 6; see also. Pawling v. U. S.; 4 
 Cranch, 219, and Duncan v. U. S., 7 Pet., 435, 
 448.) 
 
 "A person who signs, as surety, a printed form 
 of Government bond, already signed by another 
 as principal, but the spaces in which for names, 
 dates, amounts, etc., remain blank, and who 
 then gives it to the person who has signed as 
 principal, in order that he may fill the blanks 
 with a sum agreed on between the two parties as 
 the sum to be put there, and with the names of 
 two sureties who shall each be worth another 
 sum agreed on, and then have those two persons 
 sign it, makes such person signing as principal 
 his agent to fill up the blanks and prociu-e the 
 sureties, and if such person fraudulently fill up 
 the blanks with a larger sum than that agreed 
 on between the two persons and have the names 
 of worthless sureties inserted, and such sureties 
 to sign the bond, and the bond thus filled up 
 and signed be delivered by the principal to the 
 Government, who accepts it in the belief that it 
 has been properly executed, the party so 
 wronged can not on suit on the bond again set 
 up the private understandings which he had 
 with the principal." (Butler i;. U. S., 21 Wall., 
 272; see also Veach v. Rice, 131 U. S., 293, 
 318.) 
 
 Surety company as surety. — The Secre- 
 tary of the Navy has power, under section 1383, 
 Revised Statutes, to approve a pay officer's 
 bond in which the sureties are corporations, or a 
 corporation joined \\'ith a natural person, if he 
 deem such sureties sufficient. (19 Op. Atty. 
 Gen., 175; see also 19 Op. Atty. Gen., 57; 20 
 Op. Atty. Gen., 16.) 
 
 The act of August 13, 1894 (28 Stat., 279), 
 authorizing guaranty companies to become sure- 
 ties on official bonds, is permissive only, and 
 where an officer elects to furnish such suretv it is 
 
 for his personal convenience and not for the pur- 
 pose of furnishing better security to the United 
 States. (13 Comp. Dec, 375.) 
 
 The act of August 13, 1894 (28 Stat. 279), 
 authorizing the acceptance of bonds and under- 
 takings of surety and fidelity companies does 
 not permit the imposition of conditions and 
 regulations by Government officials relative to 
 the percentage of capital stock to liability on a 
 single official bond, or the minimum rates to be 
 charged for such insurance, etc. (22 Op. Atty. 
 Gen., 421.) 
 
 If the laws of a State under wliich a surety 
 company is incorporated limit the amount of 
 liability to a certain percentage of the capital, 
 which can be incurred on account of any one 
 partnership or association, and if a greater 
 amount of liability is incurred it is to be secured 
 by a collateral agreement of indemnity, such 
 provision is thereby made a part of its charter, 
 and to that extent is it restricted in its dealings 
 with the United States. (22 Op. Atty., Gen., 
 421.) 
 
 The validity of the bond or the obligation 
 of either of the sureties is not impaired by the 
 fact that one of them (a surety company) has 
 not the written authority of the Attorney 
 General to do business as required by the act 
 of Congress of August 13, 1894. (26 Op. Atty. 
 Gen., 276.) 
 
 Bonds of surety companies, executed in 
 States in which they are not licensed, for 
 principals residing in those States, or for con- 
 tracts to be performed therein, are valid and 
 enforceable against such companies, no matter 
 how flagrant their violation of the law of the 
 State may have been as regards failure to 
 qualify to do business in the State. (28 Op. 
 Atty. Gen., 127.) 
 
 The execution of a bond by a surety com- 
 pany at its home office, or outside of the bound- 
 aries of the State wherein it is not licensed, for 
 a principal residing in such State or for a con- 
 tract to be performed there, would not be the 
 doing of business by the surety within the State. 
 (28 Op. Atty. Gen., 127.) 
 
 The Treasury Department should not accept 
 the bond of a sm-ety company in a State where 
 the company is forbidden by the laws of the 
 State to do business, notwithstanding the com- 
 pany may have complied ^vith the provisions 
 of section 2 of the act of August 13, 1894. (28 
 Op. Atty. Gen., 34.) 
 
 The act of August 13, 1894, requires the ap- 
 pointment of a process agent in the district 
 where the principal resides, and also in the 
 district where the contract is to be performed. 
 (28 Op. Atty. Gen., 34.) 
 
 Surety companies may, under the provisions 
 of the act of August 13, 1894, appoint process 
 agents in Porto Rico but not in the Philippine 
 Islands. (27 Op. Atty. Gen., 208.) 
 
 A surety company may be accepted as surety 
 on the official bond of an officer of the Govern- 
 ment who is to discharge his duties in the 
 Panama Canal Zone, provided the surety com- 
 pany has appointed process agents in the 
 judicial district in which the principal in the 
 bond resided at the time it was made or guar- 
 anteed and in the judicial district in which 
 the office is located to which it is returnable, 
 and provided the company has also complied 
 
 485 
 
Sec. 1383. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 with all other legal requirements. (27 Op. 
 Atty. Gen., 208.) 
 
 The Canal Zone is not within the contempla- 
 tion of the act of August 13, 1894, which pro- 
 vides tluit surety cornpanios doing business 
 out'jide of the States or Territories under which 
 they are incorporated shall appoint agents re- 
 siding within the juritidiction of the court 
 where such suretyship is to be undertaken 
 upon whom process may be served. (27 Op. 
 Atty. Gen., 136.) 
 
 A surety company of Kansas City, Mo., 
 ha\'ing tlie power to guarantee the fidelity of 
 persons holding positions of public or private 
 trust and the power to execute and guarantee 
 bonds and undertakings injudicial proceedings, 
 possesses appropriate corporate powers to en- 
 title it to certificate as a sole surety under the 
 provisions of the acts of Congress of August 
 13, 1894 (28 Stat., 279), and March 23, 1910 
 (36 Stat., 241). (28 Op. Atty. Gen., 411.) 
 
 Voluntary bonds given by an employee or 
 ofhcer of the United States to a supeiior officer, 
 do not come within the pur\'iew of the act of 
 August 13, 1894, which prescribes the character 
 and qualifications of guaranty companies 
 which may be accepted on official bonds re- 
 quired by law. (28 Op. Atty. Gen., 28.) 
 
 Renewal of bonds. — Every officer of the 
 Supply Corps "shall give a new bond, with suffi- 
 cient surety, every four years, or whenever 
 required to do so by the Secretary of the Navy; 
 and all such bonds shall be examined every 
 two years for the purpose of ascertaining the 
 sufficiency of the surety thereon." (Art. 
 R-3002, Navy Regs., 1913; see sec. 1384, R. S., 
 and act of Mar. 2, 1895, see. 5, 28 Stat., 807.) 
 
 Prior to the actof March 2, 1895 (28 Stat. , 807), 
 new or additional bonds, under certain con- 
 tingencies, such as the death or insolvency of 
 the surety, etc., might be and were required 
 of public officers, and the purpose of that act 
 was to make general what was theretofore spo- 
 radic and subject to the discretionary power of 
 some Government department or official. It 
 is believed that the failure to give such renewal 
 at any time would operate to disqualify the 
 defaulting official from exercising the office to 
 which he had been appointed just as the failure 
 to give the bond required by law on the original 
 appointment would operate. (13 Comp. Dec. 
 375; see below, "Failure to give new bond," 
 under "X. Miscellaneous.") 
 
 ' ' As there is no express statutory requirement 
 that the Paymaster General of the Navy give 
 a bond and as the public interests do not re- 
 quire that he furnish one, it is not considered 
 necessary to call upon the present Paymaster 
 General to renew his last bond given as a pay 
 director at the expiration of the four-year 
 period, June 22, 1909. Nothing in this opinion 
 should be considered as applying to the renewal 
 of bonds of pay directors or pay inspectors, offi- 
 cers of which rank while not required l^y stat- 
 ute to furnish bond are properly required by 
 the Department so to do, for the reason that 
 public funds may from time to time be placed 
 in their hands." (File 26284-94, May 8, 1909, 
 Memo, of Solicitor, Navy Dept.) 
 
 Where a bond given by an officer is objec- 
 tionable in point of form, the direction of his 
 official superior to execute a new one must be 
 
 considered as that of the head of the depart- 
 ment, and the bond given in compliance there- 
 with can not be considered as ha\'ing been 
 e.xtorted from the officer and his sureties con- 
 trary to statute. (Soule v. U. S., 100 U. S., 8.) 
 
 For other cases, see below, "IX. Liability 
 of Sureties." 
 
 Biennial examination of official bonds.— 
 The law as it now stands provides for the bien- 
 nial examination of the bonds of all pay officers 
 of the Navy, without providing adequate ma- 
 chinery for or defraying the cost of such exam- 
 ination. Prior to the act of March 2, 1895, it 
 was the practice of the Navy Department to 
 require pay officers to renew their bonds at the 
 end of each five years. By the terms of the 
 present law it is made compulsory to renew 
 them every four years at least, and to examine 
 them every two years. The Secretary of the 
 Navy requested the Attorney General's opinion 
 upon "the question of having the necessary 
 examination into the character and value of the 
 property of the sureties on the official bonds 
 approved by this Department made by the 
 Ignited States attorneys for the respective dis- 
 tricts in which the various bondsmen reside. 
 The opinion of the Attorney General, rendered 
 March 30, 1895, stated: "I am not advised of 
 any statute which either requires or authorizes 
 a United States attorney to make an examina- 
 tion of the character suggested, and am of the 
 opinion that he can not be called upon to render 
 any such service to any officer of the Navy 
 Department charged with the duty of approving 
 official bonds." (21 Op. Atty. Gen., 154.) The 
 aforesaid opinion ha\'ing rendered it impossible 
 to refer official bonds to the Department of 
 Justice for the certification as to the solvency 
 of the sureties thereon, the Navy Department 
 has been constrained to adopt the only remain- 
 ing available method of making the required 
 biennial examinations of bonds, i. e. , to forward 
 to each pay officer concerned a "certificate of 
 sufficiency of sureties" for execution, said cer- 
 tificate containing forms for the justification of 
 the several sureties on such officer's bond, and 
 also a form for the certification, by a United 
 States attorney or a judge or clerk of a United 
 States court, to the effect that he has personally 
 inquu-ed into the solvency of the sureties and 
 is satisfied that they are sufficient for an amoimt 
 double that of the bond. In case the surety is 
 a corporation qualified to become sole surety 
 on a bond, under the act approved August 13, 
 1894, the certificate differs slightly in detail 
 from the one just described. (Ann. Rept. Judge 
 Adv. Gen. to the Sec. of the Navy, 1895; see 
 also 2 Comp. Dec., 444, and 3 Comp. Dec, 135, 
 noted below, under "X. ]\[iscellaneous * * * 
 Expense of furnishing bond.") 
 
 VI. Approval op Bond. 
 
 What constitutes approval. — There is no 
 rule which can be applied to determine what 
 constitutes the approval of official bonds. 
 Every case must depend upon the laws direct- 
 ing such an approval. The piupose for which 
 such a bond is required must be looked to. 
 The character of the office and its duties must 
 be examined. The time within which such a 
 bond must be given and approved, and whether 
 it is retrospective or for the future only, must 
 
 486 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1383. 
 
 be considered before it can be determined how 
 and when the approval must be made. (Broome 
 V. U. S., 15 How., 143.) 
 
 The statute does not require the approval to 
 be in wi'iting. It may be so, or may be done 
 verbally; or it may not be done in either way. 
 Receiving the bond, and retaining it for a con- 
 siderable time ^vithout objection, will be suffi- 
 cient evidence of acceptance to complete the 
 delivery, especially when the exception is 
 taken by the party who had done all he could 
 to complete it. Presumptive ex^idence is ad- 
 missible to prove the approval and acceptance 
 of a bond, such as its being in the possession of 
 the obligee, having been retained without 
 objection, and the obligor continuing to act 
 under it without ha\T.ng called for a more formal 
 acceptance. (Broome v. U. S., 15 How., 143.) 
 
 The law prescribes no form of acceptance; 
 nor does it even require that the acceptance 
 should be evidenced by writing. The date of 
 acceptance should be indorsed on the bond for 
 the security of the smreties bound in the old 
 bond; yet the parties to the new bond are 
 bound by the acceptance in fact of their bond, 
 and this acceptance may be shown as any other 
 fact is required to be. (4 Op. Atty. Gen., 187.) 
 
 The receipt of the instrument, its indorse- 
 ment, its being filed among the archives of the 
 department, or its record, and so forth, may be 
 invoked as evidence of its acceptance by the 
 officer authorized to require it. The more 
 obvious and ordinary mode of evidencing this 
 fact, it is true, is by the signature of the officer 
 authorized to act; but it is by no means indis- 
 
 Eensable. The abbreviation employed by the 
 ead of a department is in legal contemplation 
 his signature, if used for that purpose; and 
 if in any case it should become material to 
 establish it by evidence, the same testimony 
 would avail as would suffice to verify his name 
 written out at length. (4 Op. Atty. Gen., 187, 
 citing U. S. r. Dandridge, 12 Wheat., 64.) 
 
 "The possession of the original bond by the 
 proper officers of the United States, was prima 
 facie evidence that it had been delivered and 
 accepted. " (U. S. v. Wilkinson, 12 How., 246, 
 253.) 
 
 Power of approving officer. — The officer 
 charged with the approval of the bond may 
 accept the sureties or reject them. He may 
 call at any future time for other sureties, if cir- 
 cumstances shall occur, or information shall be 
 received, which make it necessaiy that the 
 United States shall have a more responsible 
 security. Or he may call for a new bond. He 
 may decide upon the sufficiency of the sureties 
 before they have made themselves such, or 
 after they have signed the bond. (Broome v. 
 U. S., 15 How., 143,154.) 
 
 Delegation by Secretary of power of 
 approval. — " ' The duty of approval of all bonds 
 that have heretofore been transmitted to this 
 office for examination and recommendation 
 only, has, by order of the Secretary, devolved 
 upon the Solicitor * * *." (Ann. Rept. 
 of the Solicitor to. the Sec. of the Navy, 1917, 
 p. 8.) 
 
 VII. Condition op Bond. 
 
 Departure from statutory form. — See 
 cases noted above, under "IV. Form of Bond . " 
 
 Binds officer as insurer of Government 
 funds. — ^^'hen a receiver of public money 
 binds himself in a penal sum to perform the 
 duties of his office without exception, he 
 ' ' makes himself an insurer by express contract " 
 of moneys coming into his hands . ' ' There is an 
 established difference between a duty created 
 merely by law, and one to which is added the 
 obligation of an express undertaking. The 
 law does not compel to impossibilities, but it 
 is a settled rule that if performance of an ex- 
 press engagement becomes impossible by rea- 
 son of anything occurring after the contract 
 was made, though unforeseen by the contract- 
 ing party and not within his control, he will 
 not be excused * * *. If, as we have seen, 
 his liability is to lie measured by his bond, 
 and that binds him to pay the money, then the 
 cause which renders it impossible for him to 
 pay is of no importance, for he has assumed the 
 risk of it. " (Boyden v. U. S., 13 Wall., 17, 21, 
 holding that it is no defense to an action upon 
 the bond of a receiver of public moneys that 
 he had been by irresistible force robbed of the 
 moneys sued for. See also Smythe v. U. S., 
 188 U. S., 167.) 
 
 The liability of a public officer on his bond 
 for moneys collected for the United States and 
 not paid over, is determined by his bond; and, 
 if the case can be likened to that of private con- 
 tracts at common law, it is that of a common 
 carrier, to transmit them to the Treasury, in 
 doing which he is not exonerated by ordinary 
 diligence, but must answer for loss by larceny 
 and even robbery. (U. S. v. Morgan, 11 How., 
 154, 158. See also Smythe v. U. S., 188 U. S., 
 164.) 
 
 Officers of the Na\'y are liable upon their 
 bonds for public stores committed to their 
 charge, even though such stores are destroyed 
 by inevitable accident. (4 Op. Atty. Gen., 355.) 
 
 In an action on the bond of a paymaster in the 
 Army for not paj-ing over or accounting for 
 public money that came into his hands, held, 
 no defense that, without any want of proper 
 care and ^dgilance on the part of the pajTaaster, 
 a certain part of the moneys had been stolen 
 from him. (U. S. v. Dashiel, 4 Wall., 182; see 
 also Smj^he v. U. S., 188 U. S., 165.) 
 
 "By his bond he had insured the safekeeping 
 and prompt paj-ment of the public money 
 which came to his hands. His obligation was 
 therefore no less stringent than that of a common 
 carrier, and in some respects it was greater." 
 (Be vans v. U. S., 13 Wall., 56, 60; see also 
 Sm>i.he v. U. S., 188 U. S., 168.) 
 
 Held, no defense to an action on the bond 
 of a receiver of public moneys that the money, 
 for the nonpajanent of which the United 
 States sued, had been feloniously stolen, taken 
 and carried away from his posses.sion by some 
 unknown person or persons, without fault or 
 negUgence on his part. (U. S. v. Prescott, 
 3 How., 578, 587: see also Smythe v. U. S., 188 
 U. S., 163.) 
 
 Does not bind officer for losses due to 
 overruling necessity or the pubhc 
 enemy. — "No rule of public policy requires 
 an officer to account for moneys wnic>h have 
 been destroyed by an oA^erruling necessity 
 or taken from him by a public enemy, without 
 any fault or neglect on his part."- (U. S. v. 
 
 487 
 
Sec. 1383. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Thomas, 15 Wall., 337; see also Smythe v. U. 
 S., 188 U. S., 168.) 
 
 An action was brought on the bond of a sur- 
 veyor of customs at NashA-ille, he being also a 
 depositary of'public moneys at that fity. The 
 special defense was that the moneys in question 
 were seized bv the Confederate authorities, 
 against the will and consent of the surveyor 
 and by the exercise of force which he was 
 unable" to resist, being a loyal citizen and en- 
 deavoring faithfully to perform his duty. 
 Held, That the act of a public enemy, in forcibly 
 seizing or destro>dng property of the Govern- 
 ment in the hands of a puldic officer, against 
 his will, and without his fault, is a discharge 
 of his obligation to keep such property safely, 
 and of his official bond, given to secure the 
 faithful performance of that duty and to have 
 the property forthcoming when required. (U. 
 S. V. Thomas, 15 Wall., 337; see also Smythe 
 V. U. S., 188 U. S., 168.) 
 
 "The Thomas case does not materially 
 modify the decisions in pre^dous cases. The 
 general rule announced in these cases * * * 
 is that the obligations of a public officer, who 
 received pubUc moneys under a bond con- 
 ditioned that he would discharge his duties 
 according to law, and safely keep such moneys 
 as came to his hands, by virtue of his office, 
 are not to be determined by the principles 
 of the law of bailment, but by the special 
 contract evidenced by his bond conditioned as 
 above stated; consequently, it is no defense to 
 a suit brought by the Government upon such 
 a bond that the moneys, which were in the 
 custody of the officer, had been destroyed by 
 lire occurring without his fault or negligence. 
 This rule, so far from being modified by the 
 Thomas case, is reaffirmed by it, subject, how- 
 ever, to the exception (which, indeed, some 
 of the prior cases had in effect intimated), that 
 it was a vaUd defense that the failure of the 
 officer to account for public moneys was attribu- 
 table to overruling necessity or to the public 
 enemy. The case now before us [loss by fire 
 without negligence] is not embraced by either 
 exception. The result is that the special de- 
 fense here made can not, in view of former adju- 
 dications, avail the superintendent or his sure- 
 ties." (Smythe _i;. U. S., 188 U. S., 15fi, 170.) 
 
 "WTiere a receiver of public moneys has such 
 moneys in his hands, which would rot have 
 been in his hands at all, if he had paid them 
 over with the promptness that the acts of Con- 
 gress and the Treasury regulations made in 
 pursuance of them, prescribing the duties of 
 receivers, in this respect made it his duty to do, 
 and which therefore — ^inasmuch as the duties of 
 receivers mider their official bonds are defined 
 by those acts and Treasury regulations — it was 
 also his duty under his official bond to do — 
 evidence that the moneys were forcibly taken 
 from him by the agents of the so-called 'Con- 
 federate States,' usurping the authority of the 
 rightful government, and compelling obedience 
 to itself exclusively throughout the State in 
 which the receiver was, held to have been 
 rightly refused in a suit by the Government 
 on the official bond of such receiver, as short of 
 meeting the necessity of the case; it haAdng 
 been omng to the default of the receiver in not 
 paying over promptly and at the right times, that 
 
 the moneys were exposed to seizure at all by 
 the rebel usurping government." (Bevans v. 
 U. S., 13 Wall., 5G.) 
 
 In accordance with a Confederate statute a 
 postmaster in North Carolina paid Government 
 moneys in his hands over to a party claiming 
 against the United States: Held, That he was 
 responsible on his bond for the moneys so paid. 
 "We cannot concede that a man who, as a 
 citizen, owes allegiance to the United States, 
 and, as an officer of the Government holds its 
 money or property, is at liberty to turn over the 
 latter to an insurrectionary government wdiich 
 only demands it by ordinances and drafts 
 dra\^ni on the bailee, but which exercises no 
 force or threat of personal violence to himself or 
 property in the enforcement of its illegal orders. ' ' 
 In tliis case it was not proved that the post- 
 master would have suffered any inconvenience 
 or been punished by the Confederate authori- 
 ties if he had refused to pay the draft of the 
 insurrectionarv post office department on him. 
 (U. S. V. Keehler, 9 Wall., 83; see also Smvthe 
 r. U. S., 188U. S., 165.) 
 
 Officer may be relieved from liability 
 for losses for which he is responsible 
 under the terms of his bond. — By the 
 Judicial Code (act Mar. 3, 1911, sees. 145, 147, 
 36 Stat., 1136, 1137), it is proAided that the 
 Court of Claims shall have jurisdiction to relieve 
 any disbursiiig officer of responsibility on ac- 
 count of loss, by capture or otherwise 'while in 
 the line of his duty, of Government funds, 
 vouchers, records, or papers in his charge, where 
 such loss occurred without fault or negligence 
 on the part of the officer, but he has been held 
 responsible therefor. 
 
 By act of July 11, 1919 (41 Stat., 132), the 
 accounting officers are required to relieve any 
 disbursing officer of the Navy of responsibility 
 for lo.ss or deficiency of Government funds, 
 when determined by the Secretary of the Navy 
 that the officer was not guilty of fault or negli- 
 gence and was in the line of his duty. The 
 same act ("41 Stat., 153) contained similar pro- 
 visions \\ath respect to unauthorized pajinents 
 made during the "present emergency" under 
 military necessity or as the result of accidental 
 circumstances for which the officer was not 
 responsible. 
 
 In cases of hardship not covered by statute 
 relief must be sought from Congress. The court 
 is not authorized to make other exceptions than 
 those made by the statute. (U. S. v. Keehler, 
 9 Wall., 83, 89.) 
 
 Condition of bond is prospective; does 
 not cover past transactions. — The condi- 
 tion of the bond was prospective, and fraud in 
 respect to past transactions, not within the con- 
 dition, could not render the instrument void 
 prospectively. (U. S. v. Boyd, 5 How., 29.) 
 
 The condition of a bond can not, by implica- 
 tion, be held retrospective, and to cover all 
 defaults of the officer from the date of his com- 
 mission, merely because it recites the date from 
 which he had been appointed. The court is 
 precluded by the authorities from maintaining 
 that the sureties are liable by impUcation, con- 
 trary to the plain prospective obUgation of the 
 bond, "that the said Boyd shall faithfully 
 execute and discharge the duties of his office." 
 If intended to cover past derelictions, the bond 
 
 488 
 
The Navy, 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1383. 
 
 should have been made retrospective in its 
 language. (U. S. v. Boyd, 15 Pet., 187, 208; 
 Farrar v. U. S., 5 Pet.. 374, 389.) 
 
 For other cases, see above, "III. Date from 
 which Bond takes Effect." 
 
 Binds oflScer as long as he remains in 
 office. — "Bondsof officers of the United States, 
 given for the faithful discharge of their duties, 
 which are not in terms limited to a specified 
 period expressed in dates, remain in force so 
 long as such officers continue in office, even 
 though another and different bond be given by 
 way of renewal.'' (26 Op.Atty. Gen., 70.) _ 
 
 "A provision in an official bond, shortening 
 the life of the bond from the entire period dur- 
 ing which the office is held until such time as 'a 
 new official bond shall be accepted by the 
 proper authority and substituted ' therefor, runs 
 counter to the statute and would be without 
 effect. In its other particulars, the bond would 
 be good." (26 Op. Atty. Gen., 70. See above, 
 "Departure from statutory form," under "IV. 
 Form of Bond.") 
 
 Although the limitation is intended "to 
 overcome the embarrassing effect of existing 
 law, under which renewal bonds do not operate 
 as a discharge of the bonds theretofore given, ' ' it 
 is nevertheless unauthorized. Heads of de- 
 partments are given wide latitude in the con- 
 duct of their departments by section 161, Re- 
 vised Statutes, the only restriction contained in 
 that section being that they shall not prescribe 
 regulations inconsistent with law. However, 
 such an attempt to surrender the legal rights of 
 the Government as is contemplated by the pro- 
 posed limitation upon the duration of official 
 bonds is so ^dtal as to be clearly within that re- 
 striction, and can not, therefore, be of any legal 
 effect. (26 Op. Atty. Gen., 70.) 
 
 In view of section 1385, Revised Statutes, it 
 becomes a serious question whether or not a 
 bond given as assistant paymaster would not be 
 binding upon the sureties as long as the officer 
 remained in the Pay Corps of the Navy, even 
 after his promotion to passed assistant and to 
 full paymaster. It is to be presumed that this 
 condition of affairs is not desired, and it would 
 seem necessary that some provision be made in 
 the form of bond which would obviate the legal 
 effect of section 1385. (10 Comp. Dec, 44; but 
 see 26 Op. Atty. Gen., 70, noted above.) 
 
 The bond of an officer of the Supply Corps 
 in the lower grade continues binding "until 
 his new bond in the higher grade is approved." 
 (Art. R.-4418, Navy Regs., 1913, as amended 
 by C. N. R. 7, Sept. 15, 1916; see sec. 1385, 
 R. S.) 
 
 For other cases, see below, "Where new bond 
 is given," under "IX. Liability of Sureties, 
 and "Amount of bond," under "X. Miscel- 
 aneous." 
 
 Binds officer for faithful disbursement of 
 public moneys, whatever their amount. — 
 "Although when the bond was executed it 
 might not have been supposed that the officer 
 would have such large sums to disbiuse, that 
 fact forms no defense to an action on the bond, 
 which was conditioned for the honest disburse- 
 ment of the public moneys, whatever might 
 be their amoimt." (Moses v. U. S., 166 U. S., 
 571, 592.) 
 
 Binds officer for faithful performance of 
 duties imposed by subsequent laws. — 
 "The bond of a receiver of public money is 
 given to insure the performance of all of his 
 duties, and those duties are defined by the acts 
 of Congress and by Treasury regulations made 
 under the acts." (Bevans v. U. S., 13 Wall., 
 56, 61.) 
 
 ' ' The official bond of parties covers not merely 
 duties imposed by existing law, but duties be- 
 longing to and naturally connected with their 
 offices or business imposed by subsequent law, 
 but the new duties must have some relation to 
 or connection with such office or business, and 
 not be disconnected from and foreign to both." 
 (U. S. V. Singer, 15 Wall., 111.) 
 
 ^^^lere the condition of the bond is that the 
 party shall in all respects faithfully comply 
 with all the provisions of law in relation to the 
 duties upon which he is engaged, this signifies 
 an intention to stipulate that the principal in 
 the bond should comply with duties subse- 
 quently Imposed by law. Both parties, it 
 must be assumed, knew that Congress might, at 
 any time, enact new provisions imposing new 
 duties or varying those already imposed; and 
 the defendants must have understood that it 
 never could have been intended that a new 
 bond should be required with every modifica- 
 tion made in relation to the existing duties. 
 (IT. S. t'. Powell, 14 Wall., 493.) 
 
 Bonds of public officers are required to secure 
 the faithful discharge of the duties ordinarily 
 imposed upon the principal obligor, without 
 reference to the time when the law was passed 
 imposing the duties, and where the language 
 of the bond is sufficiently comprehensive to 
 embrace duties subsequently imposed of a char- 
 acter corresponding with those required at the 
 date of the bond , the construction which gives 
 a prospective, as well as a retrospective, oper- 
 ation to the condition of the bond may well be 
 adopted as both reasonable and just to all con- 
 cerned. (U. S. V. Powell, 14 Wall., 493.) 
 
 The Navy Department, in requiring the prin- 
 cipal in the bond to perform duties which would 
 have been performed by an officer of a different 
 character if there had been such an officer at 
 the navy yard, did not thereby require of him 
 the performance of duties against defaults in 
 which his sureties had not undertaken to pro- 
 tect the Government. (Strong v. U. S., 6 
 Wall., 788.) 
 
 Does not cover duties imposed by sub- 
 sequent laws, in certain cases.— Excep- 
 tional cases may doubtless arise, as where the 
 condition of the bond is in terms, or by a fair 
 and reasonable construction, limited to existing 
 duties, or where the appointment is a tempo- 
 rary one to expire at the end of the next session 
 of the Senate. Different rules are applied in 
 the case of a temporary appointment, as the 
 commission is for a different tenure, and imless 
 there is something in the act under which the 
 first commission issued, showing that it con- 
 templated a permanent and continuing respon- 
 sibility under laws subsequently passed, the 
 rule is that the liability of sureties must be 
 strictly confined to the duties created by the 
 acts passed antecedent to the date of the bond. 
 (U. S. V. Powell, 14 Wall., 493, 502.) 
 
 489 
 
Sec. 1383. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 A bond given by an officer under a recess 
 appointment of the President, and who is sub- 
 sequently appointed by the President with the 
 advice and consent of the Senate, is to be re- 
 stricted to the duties and obligations created 
 by the statutes passed antecedently to the date 
 of the bond. (U. S. v. Kirkpatrick, 9 ^V^leat., 
 720.) 
 
 It must be admitted that any substantial 
 addition by law to the duties of the obligor of 
 a bond, after the execution of the instrument, 
 materially enlarging his liabilities, will not 
 impose any additional responsibility upon his 
 .sureties unless the words of the bond, by a fair 
 and reasonable construction, bring such subse- 
 quently imposed duties within its provisions. 
 (U. S. V. Powell, 14 Wall., 501.) 
 
 '"If, after an official bond has been signed, 
 the nature«of the office be changed by law, the 
 bond ceases to be obligatory. In such a case 
 the office is no longer the same, within the 
 meaning of the bond." (Gaussen v. U. S., 97 
 U.S., 584, 592; Converse?;. U. S., 21 How., 463.) 
 
 "Where bonds were given by pay officers of 
 the Army for the performance of particular 
 duties specified therein, it is manifest that such 
 bonds have no effect in securing the perform- 
 ance of any other duties than those to which 
 they expressly point; because this would be to 
 vary the contract of the sureties without their 
 consent. The duties contemplated in future 
 for the paymasters, being variant Irom those to 
 which their bonds are adapted, will be no 
 longer secured by those bonds; and it conse- 
 quently becomes requisite that new bonds 
 should be given in every case in which new 
 and different duties are to be performed. 
 (5 Op. Atty. Gen., 733.) 
 
 Public officers ought to give new bonds with 
 sureties when required to exercise additional 
 duties (3 Op. Atty. Gen., 575); are required to 
 give new bonds with sureties, conditioned for 
 the performance of the new duties required by 
 a subsequent law, as well as those before re- 
 quired (3 Op. Atty. Gen., 584); are not required 
 to give bonds in a larger amount than before, 
 unless it shall be deemed necessary by the 
 proper officers of the department; but they are 
 required to give new bonds with new condi- 
 tions, embracing the new duties devolved upon 
 them as well as those pre\'it)usly required (3 Op. 
 Atty. Gen., 586) ; if the proper department shall 
 deem it expedient, it may, in lieu of a new bond 
 embracing all the duties of the officer, take a 
 new bond in a suitable penalty embracing the 
 new duties onlv, leavins the old one outstand- 
 ing (3 Op. Attv. Gen., 600; see al8o3 Op. Atty. 
 Gen., 610). 
 
 The addition of duties different in their na- 
 ture from those which belonged to the office 
 when the official bond was given will not im- 
 pose upim the obligor in the bond as such addi- 
 tional responsibilities, but such an addition of 
 now duties does not render void the bond of the 
 officer as a security for the performance of the 
 duties at first assumed. It will still remain a 
 security for what it was originally given to se- 
 cure. (Gaussen v. U. S., 97 U. S., 584, 590.) 
 
 A collector of internal revtmue, directed to 
 act as disbursing agent, must give bond as such 
 in addition to his bond as collector; liis ac- 
 counts in the two capacities are kept in separate 
 
 books at the Treasury. (Hall v. V. S., 17 Ct. 
 Cls. 39.) 
 
 The reimbursement to the United States of 
 moneys paid by them to their own officers or 
 agents in pursuance of a law in existence when 
 tiie bond was executed, is not a duty so con- 
 nected with or naturally belonging to the busi- 
 ness of the principal as to bo within the reasona- 
 ble contemplation of the parties to the bond at 
 the time of its execution. "It would be ex- 
 tending the liabilities of obligors on such bonds 
 beyond principle and precedent to hold them 
 responsible for the reimbursement of moneys 
 paid by Government to its own officers or 
 agents, because, subsequent to their payment. 
 Government declares that such reimbursement 
 shall be made." (U. S. v. Singer, 15 Wall., 
 111.) 
 
 VIII. Conflict of Laws. 
 
 Local law of a particular State can not 
 affect the contract. — An official bond, given 
 in pursuance of a law of the United States, is 
 not to be governed by the laws of the State in 
 which it was signed, but must be considered as 
 having been executed at the seat of the Gov- 
 ernment of the United States and to be gov- 
 erned by the principles of the common law. 
 (Duncan y. U. S., 7 Pet., 435.) 
 
 "Tliis is an official bond, and was given in 
 pursuance of a law of the United States. By 
 this law, the conditions of the bond were fixed, 
 and also the manner in wliich its obligations 
 should be enforced. It was delivered to the 
 Treasury Department at Washington, and to the 
 Treasury did the payma.'^ter and his sureties 
 become bound to pay any moneys in his hands. 
 These powers, exercised by the Federal Gov- 
 ernment, can not be questioned. It has the 
 power of prescribing, under its own laws, what 
 kind of security shall be given by its agents for 
 a faithful discharge of their public duties. And 
 in such cases, the local law cannot affect the 
 contract; as it is made with the Government, 
 and in contemplation of law, at the place where 
 its principal powers are exercised. (Duncan 
 V. U. S., 7 Pet., 435.) 
 
 Liability of parties governed by rules of 
 common law. — The general rule of law is well 
 settled that the law of the place where the con- 
 tract is made, and not where the action is 
 brought, is to govern in enforcing and expound- 
 ing the_ contract, unless the parties have a 
 \'iew to its being executed elsewhere, in which 
 case it is to be governed according to the law 
 of the place where it is to be executed. Al- 
 though the official bond of a naval officer was 
 signed at New Orleans, it is very clear that the 
 obligation imposed upon the parties thereby 
 looked for its execution to the city of Washing- 
 ton. It is immaterial where the services of the 
 officer were to be performed; his accounta- 
 bility for nonperformance was to be at the seat 
 of government; he was bound to account, and 
 the sureties undertook that he should account, 
 for all public moneys received by him with 
 such officers of the Government of the United 
 States as are duly authorized to settle and 
 adjust his accounts. The bond was given with 
 reference to the laws of the United States on 
 that subject, and such accounting is required 
 to be with the Treasury Department at the seat 
 
 490 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1383. 
 
 of government; the officer is bound by the 
 terms of the bond to pay over such sums as 
 may be found due to the Uiuted States on such 
 settlement, and such pajdng o^'er must be to 
 the Treasury Department or in such manner as 
 shall be directed by the Secretary'. The bond 
 is therefore, in every point of view in which 
 it can be considered, a contract to be executed 
 at Washington; and the liability of the parties 
 must be governed by the rules of the common 
 law. (t"ox V. U. S., 6 Pet., 172; see also 
 Pritchard v. Norton, 106 U. S., 124, 139.) 
 
 Construction of bond governed by deci- 
 sions of Federal courts. — "A bond given in 
 piu-suance of a law of the United States is gov- 
 erned, as to its construction, not by the local 
 law of a particular State, but by the principles 
 of law as determined by this court, and opera- 
 tive throughout the courts of the United States." 
 (TuUock V. Mulvane, 184 U. S., 497, 514.) 
 
 Competency of married "woman as 
 surety depends upon law prevailing in 
 District of Columbia.^See 15 Op. Atty. 
 Gen., 472, cited above under "V. Sufficiency 
 of Sureties." 
 
 IX. LiABrLiTY OF Sureties. 
 
 In general. — "Nothing is plainer than the 
 rule that a surety in a bond is liable to the same 
 extent to which his principal is Liable, by force 
 of the bond." (Gaussen v. U. S., 97 U. S., 
 584, 590.) 
 
 All the pro\ision3 of the statutes regulating 
 the institution of suits and the recovery by 
 judgment of unpaid balances from delinquent 
 officers, are as much a part of their bonds as if 
 they were recited in them; and officers and 
 their securities are, in contemplation of law, 
 apprised of those provisions when their bonds 
 are executed. (U. S. v. Hawkins, 10 Pet., 125.) 
 
 "The Government is not responsible for the 
 laches or the wrongful acts of its officers 
 * * *. Every sui-ety upon an official bond 
 to the Government is presumed to enter into 
 his contract with a full knowledge of this 
 principle of law, and to consent to be dealt with 
 accordingly. The Government enters into no 
 contract with them that its officers shall per- 
 form their duties. A government may be a 
 loser by the negUgence of its officers, but it 
 never becomes bound to others for the conse- 
 quences of such negUgence, unless it be by ex- 
 press agreement to that effect." (Hart v. 
 U. S., 95 U. S., 316.) 
 
 Strictissimi juris. — "The obligation of the 
 surety is strictissimi jiu-is, and he can not be 
 called upon to pay more than the penalty of his 
 bond." (Leggetti;. Humphreys, 21 How.^ 66.) 
 
 It is perfectly clear as to the sureties m an 
 official bond that a judgment cannot be ren- 
 dered beyond the penalty, to be discharged on 
 payment" of what is due, which of course can 
 only be, where it is less than the penalty. 
 (Farrar v. U. S., 5 Pet., 373.) 
 
 "The liability of a surety is not to extend, by 
 implication, beyond the terms of his contract; 
 this undertaking is to receive a strict inter- 
 pretation, and not to extend beyond the fair 
 scope of its terms." (U. S. v. Bovd, 15 Pet., 
 187; Miller v. Stewart, 9 ^Vheat., 702.) 
 
 "Nothing can be clearer, both upon principle 
 and authority, than the doctrine that the lia- 
 
 54641°— 22 32 491 
 
 bility of a surety is not to be extended by impli- 
 cation beyond the terms of his contract. To 
 the extent and in the manner and under the cir- 
 cumstances pointed out in his obligation, he is 
 bound, and no further. It is not sufficient that 
 he may sustain no injury by a change in the 
 contract, or that it may even be for his benefit. 
 He has a right to stand upon the very terms of 
 his contract ; and if he does not assent to any 
 variation of it, and a variation is made, it is 
 fatal. And courts of equity, as well as of law, 
 have been in the constant habit of scanning the 
 contracts of siu-eties with considerable strict- 
 ness. * * * The undertaking of the surety 
 is to receive a strict inter])retation, and is not 
 to be extended beyond the fair scope of its 
 terms." (Miilert'. Stewart, 9 Wheat., 680, 702.) 
 
 Money received prior to giving bond. — 
 "It matters not at what time the moneys had 
 been received, if, after the appointment, they 
 were held by the officer in trust for the United 
 States, and so continued to be held, at and after 
 the date of the bond." (U. S. v. Boyd, 15 Pet., 
 187, 207.) 
 
 If an officer, before the date of his official 
 bond, receive money belonging to the United 
 States with orders from the Comptroller to pay 
 it into a United States depository, which he 
 neglects to do, the sureties on his official bond, 
 executed afterwards, are not liable therefor 
 upon the bond, although the money remain in 
 the officer's hands after the execution of the 
 bond. (U. S. V. Giles, 9 Cranch, 212; see also 
 Farrar r.U. S., 5 Pet., 373.) 
 
 Money falsely claimed by principal to be 
 in his hands. — The sureties are responsible for 
 all the public moneys which were in the hands 
 of their principal at the date of the bond, or that 
 may have come into them afterwards, and not 
 properly accounted for; but not for moneys 
 which the officer may choose falsely to admit 
 in his hands in his accounts with the Govern- 
 ment. (U. S. V. Boyd, 5 How., 29, 50.) 
 
 The sureties can not be concluded by a 
 fabricated account of their principal with his 
 creditors; they may always inquire into the 
 reaUty and truth of the transaction existing 
 between them. (U. S. v. Boyd, 5 How., 29.) 
 
 The returns of the receiver to the Treasury 
 Department are not conclusive evidence in an 
 action by the Govenmient against the sureties 
 upon the receiver's bond. If the sums of 
 money stated in such returns were not actually 
 in the hands of the receiver, the sureties are 
 allowed to show how the fact was. (U. S. v. 
 Boyd, 5 How., 29.) 
 
 In United States v. Boyd (5 How., 29), the 
 receipts which had been returped to the 
 Treasiuy Department, upon which the in- 
 debtedness was found, and which had been 
 given on entries of public lands without 
 exacting the money, in fraud of the Go\'ern- 
 ment, were all given before the execution of 
 the official bond, upon which the suit was 
 brought. The svueties were not, therefore, 
 responsible for the fraud; and it was these 
 transactions on the part of the receiver, which 
 had transpired anterior to the time when the 
 sureties became answerable for the faithful 
 execution of his duties, in respect to which it 
 was held that they could not be estopped by 
 his returns to the Government. No part of 
 
Sec. 1383. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 them fell ^\•itllin the time covered by the official 
 bond. (U. S. V. Girault, 11 How., 22.) 
 
 In this case the defense is attempted that 
 the receiver never had received money which 
 he admitted receiving in his returns to the 
 Treasury Department. This is not a good 
 defense, because the sureties in the bond were 
 bound to protect the United States from the 
 commission of the very fraud which they at- 
 tempt to set up as a defense. (U. S. v. Girault, 
 11 How., 22, distinguishing U. S. v. Boyd, 
 5 How., 29, noted above.) 
 
 Money received after termination, of 
 oflice. — "The sureties are not res|>oiiHiblo for 
 moneys placed by the Govemmcnt in the 
 hands of the principal after the legal termina- 
 tion of his onice; but they are responsible for 
 moneys which came into his hands, while in 
 office, and which he subsequently failed to 
 account for and pav over." (U. S. v. Nicholl, 
 12\Mieat., 505; Bryan ;;. U. S., 1 Black, 140, 149.) 
 
 The liability of sureties upon the official bond 
 of an officer is limited to acts done by him 
 during his term of office. They are not re- 
 sponsible for defaults committed in relation 
 to public moneys received by him after the 
 term for which he was appointed. (15 Op. 
 Atty. Gen. ,214.) 
 
 A surety in the bond of a public officer is en- 
 titled to credit for all payments made by his 
 principal during the time he remained in 
 office, and is chargeable only with the moneys 
 received by him during the same time and 
 which he subsequently fails to account for and 
 pay over. (Bryan v. U. S., 1 Black. 140.) 
 
 Failure of principal to account after 
 removal from office. — There may have been 
 no breach of the bond at the time of his re- 
 moval from office, but the liability of the re- 
 ceiver to account remained, and the bond con- 
 tinued in force until he had fully accounted 
 and thus had fulfilled all the conditions of his 
 bond. (Smith v. U. S., 170 U. S., 372, 380.) 
 
 Money received in a different capacity. — 
 The sureties of a bond of a quartermaster of the 
 Army are not liable for his default in safely 
 keeping and disbursing money advanced to him 
 as acting chief commissary. (8 Gomp. Dec, 
 269.) 
 
 Money disbursed as accommodation to 
 another officer. — If B, without a receipt 
 from A, upon a requisition for money, volun- 
 teers to pay demands which it is A's duty to 
 pay, or pay the orders of A and permit the 
 receipts for the sums paid by him to get into 
 A's possession, by whom they are exhibited at 
 the Treasury and allowed in the final settle- 
 ment of his account, without A's having given 
 credit to_ B, or to the Government, for the 
 amount,_ it assumes the character of a private 
 transaction between A and B, or becomes a 
 debt due from A, as an individual, to B, as a 
 private person; and the latter can not claim the 
 amount at the Treasury, as an allowance in the 
 settlement of his account, nor as a legal and 
 equitable credit in a suit against him by the 
 United States. (U. S. v. Hawkins. 10 Pet., 124.) 
 
 Principal under suspension. — ^The sus- 
 pension of an officer involves the suspension of 
 his bond; the bond required of the person 
 designated to take the place of the former 
 being substituted therefor while the person so 
 
 designated is performing the duties of the 
 office. (18 Op. Atty. Gen., 318.) 
 
 One bonded officer acting as assistant 
 to another. — "The bond of an officer of the 
 Pay C()r])s acting as an assistant to anotlier 
 ]my officer covers the public property actually 
 in his custody, and for which he has receipted, 
 but does not release the senior from a proper 
 su])ervision over the acts of his subordinate." 
 (Art. R-3002 (5) Navy Regs., 1913.) 
 
 Acts done colore officii. — The sureties on 
 the official bond of a public officer are liable 
 for acts done by the officer colore officii, al- 
 though he acts without sufficient warrant. 
 (Lamar v. McCulloch, 115 U. S., 163, 187, citing 
 Lammon I'. Fensier, 111 U. S., 17.) 
 
 Money transferred by Government to 
 officer's agent. — A transfer of moneys by the 
 Government to an agent of the officer does not 
 affect the liability of the surety as a transfer to 
 the officer himself. The fidelity or responsi- 
 bility of the agent through whom the Govern- 
 ment sees fit to transfer public money is not 
 within the obligation assumed by the surety. 
 (Bryan v. U. S., 1 Black, 140.) 
 
 Public moneys. — Where an officer receives 
 moneys as public moneys, and charges himself 
 with them in his accounts with the Govern- 
 ment, his sureties are estopped to raise an objec- 
 tion to the payment of the moneys to the officer, 
 which he could not raise and which is not raised 
 by the parties paying or the United States. 
 Their responsibility for the moneys so received 
 is therefore clear. (Potter v. U. S., 107 U. S., 
 126, 130; King v. U. S., 99 U. S., 229.) 
 
 "Pu])lic money in the sense of the law, and 
 as used in this ])ond, is money which legally 
 comes to the receiver by virtue of his office, and 
 as a public officer, and wliile carrying out the 
 duties of his office, and he cannot be permitted 
 to say that it was not public money when so re- 
 ceived. Being public money, he is bound to 
 account." (Smith v. U. S., 170 U. S., 372, 381; 
 12 Comp. Dec, 678, 688.) 
 
 A sum of money deposited with a pay officer 
 of the Navy by a civil officer as security for the 
 return of an enUsted man of the Navy delivered 
 to the State authorities for trial is not public 
 money. (17Comp. Dec, 635; seealso 16 Comp. 
 Dec, 219, citing Branch v. U. S., 100 U. S., 673, 
 674, and Courdert v. U. S., 175 U. S., 178, 183.) 
 
 "It may be assumed, as a general doctrine of 
 administrative law, that public officers, 
 whether of deposit or disbursement, can make 
 the Government and their sureties responsible 
 only for official acts. As a plain corollary from 
 this doctrine, it may in like manner be as- 
 sumed that, if any citizen of the United States 
 deposit his own private money for safe-keeping, 
 or for transmission and remittance, in the hands 
 of a public officer, such as a collector of customs, 
 assistant treasurer of the United States, a pay- 
 master in the Army, or a purser in the Navy, 
 no liability in the premises can be thereby cast 
 on the Government. It is quite immaterial in 
 such a case what writings may have passed be- 
 tween the depositor and the bailee, what en- 
 gagements the latter may have entered into 
 with the former." Accordingly, held, that the 
 official bond of an officer of the Navy is not 
 liable for private funds paid him by his prede- 
 cessor. (6 Op. Atty. Gen., 357, 366.) 
 
 492 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1383. 
 
 For other decisions as to what constitutes 
 public money, see note to section 236, Revised 
 Statutes, under "II. Jurisdiction of Account- 
 ing Officers." 
 
 Where new bond is given. — T^Tiere, under 
 the act of March 2, 1895 (28 Stat., 807), which 
 proxides that ''every officer whose duty it is 
 to take and approve official bonds shall cause 
 all such bonds to be renewed every four years 
 after their dates," an officer renews his bond by 
 gi\ing a bond during the same term of office, 
 the new bond does not operate to release the 
 sureties on the first bond from Liability for 
 future transactions, but the sureties on the old 
 and new bonds are jointly and severally liable 
 therefor. (5 Oomp. Dec, 918.) 
 
 WTiere the law relating to the bonds of per- 
 sons in the Navy reqiiired that every person 
 then in service, etc., shall, instead of the bond 
 required by a former act, enter into a new 
 bond with sureties conditioned for the faithful 
 performance of his duties, etc., the sureties on 
 the old bond are discharged from all respon- 
 sibility for moneys received by any person 
 after he has given the new bond, the latter 
 being, by the act, a substitute for the former. 
 (U. S. V. Wardwell, 28 Fed. Cas. No. 16640, 
 per Storj', circuit justice.) 
 
 An act of Congress which requires new sure- 
 ties to be given by certain public officers on or 
 before a specified date does not expressly or 
 bv implication discharge the former sureties 
 from their liability. (U. S. v. Nicholl, 12 
 ■Wheat., 505; see below, " Failure to give new 
 bond," under "X. Miscellaneous.") 
 
 ■Whether the new bond is retroactive or not, 
 a full account of the money on hand should be 
 made in order to avoid any dispute between 
 the sureties as to which bond is Hable in the 
 event of default. Furthermore, the new bond is 
 merely cumulative, the former bond remaining 
 in force throughout the term of his office. This 
 being so, it would seem adAisable to adhere to 
 the present practice of requiring such account. 
 (29 Op. Atty. Gen., 28.) 
 
 The rules as to the settlement of their 
 accounts by disbursing officers on rebonding 
 should be adhered to, when possible, and only 
 departed from when it is shown that great 
 hardship would result from a strict compli- 
 ance with them; in other words, in cases where 
 the law could excuse a noncompliance. 
 (Comp. Dec, Apr. 21,1903. 23 S. and A. Memo., 
 183.) 
 
 The regulation reqiuring that when a new 
 bond is given the officer should close his 
 accounts under the former bond and deposit 
 any unexpended balance before an advance is 
 made under the new bond, in order that the 
 lia])ility of the sureties on the respective bonds 
 may be definitely fixed, contains requirements 
 demanded by proper care for the interests of 
 the Government. It is not doubted that the 
 regulation may be waived, even retroactively, 
 but the effect of waiver and the de])arture from 
 the usual practice upon the liability of the 
 sureties is a more difficult question. Of course 
 the sxu*ety is bound by the terms of his contract , 
 but it is a maxim of law that the liability of 
 sureties is strictissimi juris, and that lial)ility 
 sometimes depends upon fine distinctions made 
 by the courts and upon questions which in the 
 
 abstract seem without significance, but when 
 apphed in certain cases turn out to be matters 
 of great importance. It therefore seems best 
 in all cases in dealing with official bonds to 
 follow closelj^ the beaten tracks, and strictly 
 to adhere to the law and regulations made 
 in pursuance thereto. (Comp. Dec, Apr. 21, 
 1903, 23 S. and A. Memo., 183.) 
 
 "Where an action was brought by the United 
 States upon the official bond of a receiver of 
 public money, a plea that the United States 
 had accepted another bond from the receiver 
 wasbad. The new bond could be no satis- 
 faction for the damages that had accrued for 
 the breach of the condition of the old one." 
 (U. S. V. Girault, H How._, 22.) 
 
 When an officer is continued in office for 
 more than one term, but gives different sure- 
 ties the liabihty of the sureties is to be esti- 
 mated just as if a new person had been ap- 
 pointed to fill the second term. (U. S. v. 
 Eckford, 1 How., 250; but see sec. 1385, R. S.) 
 
 "The retrospective obligation of the bond 
 is as much limited by the term of the new 
 appointment as the prospective. And in 
 this view it would be as logical and just to hold 
 that the sureties are liable for defalcations after 
 the expiration of the term as for those which 
 occurred before its commencement. There 
 is no such condition in the instrument. It 
 recites the new appointment and by conse- 
 quence limits the obligation to the term of 
 office fixed bylaw." (U.S.i). Eckford, IHow., 
 250, 260.) 
 
 "Where there were two consecutive com- 
 mis.sions and two sets of sureties, the latter set 
 were responsible for all money which remained 
 in the hands of the principal at the expira- 
 tion of the first commission. If it was misap- 
 plied during the first term of office, it was in- 
 cumbent upon the second set of sureties to 
 showthatit was so." (Bruce v. U. S., 17 How., 
 437.) 
 
 The second commission, issued imder the 
 appointment with the advice and consent of 
 the Senate, operates as a revocation of the first 
 commission issued under the appointment 
 by the President, which was to continue until 
 the end of the next session of the Senate and 
 no longer; and the liability of the sureties in 
 the bond did not extend beyond the diiration 
 of the first commission. (U. S. v. Kirk- 
 patrick, 9 Wheat., 720.) 
 
 The bond given by a na-v-al officer under 
 his first commission, wliich was issued upon a 
 temporary appointment made during a recess 
 of the Senate, ceased to have effect after the 
 acceptance of a new commis.sion imder an 
 appointment made vdth. the consent of the 
 Senate. (2 Op. Atty. Gen., 333.) 
 
 A former disbursing officer in the Navy 
 reappointed to that office should give a new 
 bond; but not definitely decided that the 
 original sureties of the officer are wholly dis- 
 charged of responsibility after the reappoint- 
 ment: "This point should be saved on behalf 
 of the United States." (1 Op_. Atty. Gen., 175.) 
 
 The issuing of a new appointment and com- 
 mission to any officer of the Supply Corps of the 
 Navy shall not affect or annul any existing 
 bond, but the same shall remain in force and 
 apply to such new appointment and commis- 
 
 493 
 
Sec. 1383. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 sion. (See sec. 1385, R. S.; and see above, 
 "]3inds oflicer as \on^ as he remains in office," 
 under "VII. Condition of Bond.") 
 
 Where disbursing oflicer is allowed to 
 remain in ofllce after defalcation. — On a 
 suit by the Government against the sureties of 
 a public officer on his official bond, it ia no 
 defense that the Government, through the ac- 
 counting officers of the Treasury, had full notice 
 of the defalcation and embezzlement of funds 
 of the United States, and yet neglectfully per- 
 mitted the said officer to remain in office. 
 (Jones r. U. S., 18 Wall., 6C2. In this case it 
 was contended that the knowledge of the Gov- 
 ernment that the officer had embezzled its 
 funds should have caused his immediate dis- 
 missal; thus terminating the liability of his 
 sureties and limiting it to the amount then due, 
 and that, when the Government chooses to con- 
 tinue in office an officer known to have com- 
 mitted such an act, it takes upon itself the trust 
 of his future honesty.) 
 
 "\Miere a statute expressly directs a defaulting 
 officer to be recalled at the expiration of six 
 months from the time of his fault, his sureties 
 are not discharged but remain liable for his 
 defaults thereafter until he is actually recalled. 
 (U. S. V. Nicholl, 12 Wheat., 505, 509, citing 
 U. S. V. Vanzandt, 11 Wheat., 184.) 
 
 An omission of the proper officer to recall a 
 delinquent paymaster under the injunction of 
 a statute requiring such recall does not dis- 
 charge his surety. The provisions of the stat- 
 ute are merely directory and intended for the 
 security of the Government but form no part 
 of the contract with the surety. The statute 
 does not ipso facto remove the delinquent pay- 
 master from office but only make it the duty 
 of the proper officer to remove him. The officer 
 whose duty it may be to recall him acts upon 
 his own responsibility to the Government by 
 declining to do so; but until he acts otherwise 
 the paymaster is authorized, notwithstanding 
 his delinquency, to receive and to disbm-se the 
 funds which may be placed in his hands. The 
 circumstance of new funds being placed in his 
 hands after his delinquency does not discharge 
 the surety. (U. S. v. Vanzandt, llWheat., 184.) 
 
 An officer of the Supply Corps of the Navy, 
 under arrest awaiting action upon charges of 
 embezzlement, may be released temporarily 
 and put on duty by the commanding officer of 
 a ship, or other competent authority, should 
 an emergency of the service or other sufficient 
 cause make such measure necessary. (See art. 
 R-1410, Na\-y Regs., 1913; file 26251-8072:4, 
 Oct. 17, 1913; see also file 20251-8072:6, Oct. 28, 
 1913; 26251-8344, Dec. 24, 1913.) 
 
 Certificate given in ignorance of fraud 
 does not discliarge sureties. — A certificate 
 given to a disbursing ofiicer, before the discov- 
 ery of his fraud, that his accounts had been ex- 
 amined, found correct, and were closed, did not 
 operate to release him or his sureties from 
 habiUty on the bond. (Moses v. U. S., 166 
 U. S., 571.) _ 
 
 Such certificates were undoubtedly piima 
 facie evidence of the facts they certified to, 
 and in the absence of any evidence of mistake 
 or fraud attacking the integrity of the items, or 
 any of them appearing on the books and upon 
 which the certificates were based, they would 
 
 be conclusive in favor of the officer in any ac- 
 tion against him. * * * They would not, 
 however, be conclusive as against evidence of 
 forgery of any vouchers upon which the accounts 
 had been founded and the settlement arrived 
 at; this is too plain for argument. (Moses v. 
 U. S., IGO U. S., 571, 594.) 
 
 Laches of Govemment ofllcers not a 
 discharge. — The failure of the receiver to 
 account and pay quarterly, as prescribed by 
 the rules of the Treasury Department, was no 
 legal defalcation of which the securities can 
 avail themselves. Laches are not imputable 
 to the Government. The regulations requiring 
 settlements to be made by its officers at short 
 periods are designed for the protection of the 
 Government, and merely directory to the 
 officers and form no part of the contract. (U. S. 
 V. Boyd, 15 Pet., 187, 208.) 
 
 Where the act of Congress does not in terma 
 discharge the obligors from the direct claim of 
 the United States on them, on the failure of 
 the proper officer to commence a suit against 
 the defaulter within the time it prescribes, 
 their Uability continues; they remain debtors 
 of the United States; the responsibiUty of the 
 proper officer under the statute is superadded 
 to, not substituted for, that of the obligors. 
 The claim of the United States upon an official 
 bond, and upon all parties thereto, is not re- 
 leased by the laches of the officer to whom 
 the assertion of the claim is entrusted by law; 
 such laches have no effect whatsoever on the 
 right of the United States, as well against the 
 sureties as the principal in the bond. (Dox 
 V. Postmaster General, 1 Pet., 318; see also 
 Postmaster General v. Early, 12 WTieat., 136.) 
 
 " Sound policy requires, that the accounts of 
 disbiu"sing officers should be adjusted at the 
 proper department, with as much dispatch as 
 is practicable; this is aUke due to the public 
 and to the persons who are held responsible 
 as sureties; to the individual who has received 
 advances of money, no lapse of time nor change 
 of circumstances can weaken the claim of Gov- 
 ernment for reimbursement; but there may be 
 some cases of hardship where, after a great 
 lapse of time, and the insolvency of the prin- 
 cipal, the amount of the defalcation is sought 
 to be recovered from the sureties. The law on 
 this subject is founded upon consideration of 
 public poUcy; while various acts of hmitation 
 apply to the concerns of individuals, none of 
 them operate against the Government; on this 
 point, there is no difference of opinion among 
 the Federal or State coiu-ts." (Smith v. U. S. 
 5 Pet., 292.) 
 
 "The fiscal operations of the Government 
 are extensive and often compUcated; it is ex- 
 tremely difficult, at all times, and sometimes, 
 impracticable, to settle the accounts of pubhc 
 oflicers with as little delay as attends the pri- 
 vate accounts of a mercantile establishment; 
 but it is always in the power of an individual 
 who may be held responsible for the faithful 
 conduct of a pubhc agent, to see that his ac- 
 coimts are settled, and the payment of any bal- 
 ance enforced. A notice to the Govemment, 
 by the surety, that he is unwiUing to continue 
 his responsibility, would induce it, in most in- 
 stances, to take the necessary steps for his 
 release." (Smith v. U. S., 5 Pet. 292.) 
 
 494 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1383. 
 
 In general, laches is not imputable to the 
 Government; and where the laws require quar- 
 terly or other periodical accounts and settle- 
 ments, a mere omission to bring a suit, upon 
 the neglect of the officer or agent to account, 
 will not discharge his sureties. (U. S. v. Kixk- 
 patrick, 9 Wheat., 720.) 
 
 Failure to institute suit operates as 
 discharge. — Section 2 of the act of August 8, 
 1888 (25 Stat., 387), is absolute as regards the dis- 
 charge of sureties if suit on the bond be not 
 instituted "within five years after such state- 
 ment of said account" by the accounting 
 officer of the Treasury. It makes no exception 
 in case the accounting officer does not make such 
 statement as early as he should, or when a de- 
 ficiency is discovered by him. (22 Op. Atty. 
 Gen., 612.) 
 
 It was not intended by the act of August 8, 
 1888, section 1 (25 Stat., 387), thatthe accounting 
 officer should delay notice until it has become 
 certain that there is a deficiency; nor, on the 
 other hand, should he always report a deficiency 
 whenever, from the account of a disbmsing 
 ofiicer, it may appear prima facie that there is 
 one. This may be from insufficient vouchers or 
 evidence, or from clerical error or omission, or 
 in one or more of various ways not inconsistent 
 with a proper disbursement of the moneys in 
 his hands. Whenever, in the exercise of a 
 sound judgment and after a reasonable time al- 
 lowed for explanation and correction, it ap- 
 pears to the accounting officer that there is a 
 probable deficiency, he should notify the head 
 of the department as provided in section 1 
 of the act. (22 Op. Atty. Gen., 613.) 
 
 The five-year limitation fixed by section 2 of 
 the act of August 8, 1888 (25 Stat., 387), within 
 which suits may be brought upon the official 
 bonds of disbursing officers, begins to run from 
 the time the accounting officers of the Treasmy 
 make the statement of the account showing an 
 indebtedness to the United States. (22 Op. 
 Atty. Gen., 611.) 
 
 Giving time to principal might discharge 
 sureties. — In general, laches is not imput- 
 able to the Government, but quaere, WTiether 
 in case there is an express agreement between 
 the Government and the principal, giving time 
 to the latter and suspending the right of the 
 former to sue, the sureties are not discharged, 
 as in a similar case between private individ- 
 uals? (U. S. V. Nicholl, 12 Wheat., 505.) 
 
 "A mere proposition to give time, and sus- 
 pend the right to sue, upon certain conditions 
 and contingencies, which are not proved to have 
 been complied with, or to have happened, will 
 not discharge the sureties." (U. S. v. Nicholl, 
 12 Wheat., 505.) 
 
 The President has no authority to re- 
 lease the sureties on a bond given to the 
 United States by a public officer for the faith- 
 ful discharge of the duties of his office. (7 Op. 
 Atty. Gen., 02.) 
 
 X. Miscellaneous. 
 
 Bond should not be surrendered to 
 officer. — It is a sound regulation, conformable 
 to law, for the head of a department not to give 
 up to officers their original bonds on the execu- 
 tion of new ones. (4 Op. Atty. Gen., 312.) 
 
 There is no act authorizing a withdrawal of 
 oflBcial bonds, except for the purposes of suit. 
 (4 Op. Atty. Gen., 312.) 
 
 Accounts in the Treasury are never closed. 
 In neither the legal nor mercantile sense of 
 the term is an accoimt between the Government 
 and one of its officers ever "finally adjusted," 
 nor is his official bond ever canceled or surren- 
 dered. (Smith V. U. S., 14 Ct. Cls., 114, 118; 
 see U. S. V. Smith, 105 U. S., 620.) 
 
 Amount of bond. — A paymaster of the 
 Navy who, on promotion from passed assistant 
 paymaster, filed an additional bond with the 
 same sureties in a penal sum equal to the differ- 
 ence between the amount of his bond as passed 
 assistant paymaster and that required of him 
 as paymaster, sufficiently complied with the 
 provisions of the statutes fixing the amount 
 of bond which shall be required of a paymaster. 
 (10 Comp. Dec., 44. See sec. 1385, R. S., and 
 see above, "Binds officer as long as he remains 
 in office," under "VII. Condition of Bond.") 
 
 Expense of furnishing bond. — If the bond 
 given by an officer is required by law, the 
 expense is not chargeable to the United States, 
 since it is the duty of persons receiving appoint- 
 ments from the Government to prepare and 
 tender to the proper officer the oaths and bonds 
 required by law; in other words, to qualify 
 themselves for the office. (U. S. v. Van Duzee, 
 140 U. S., 171; see also 13 Comp. Dec, 386, and 
 2 Comp. Dec, 262.) 
 
 If the bond is not required by law, but is a 
 voluntary bond, there is no authority for charg- 
 ing the expense of furnishing it to the United 
 States, in the absence of an appropriation for 
 such expenses. (12 Comp. Dec, 678. ) 
 
 The expense incurred by an officer in furnish- 
 ing the bond required by law of all disbursing 
 officers of the Government is not a proper charge 
 against the Government, even though the 
 officer serves without compensation. (2 Comp. 
 Dec, 262.) _ 
 
 Anofficer is not entitled to reimbursement for 
 premium paid by him to a guaranty company as 
 surety on his original and renewal bonds. (13 
 Comp. Dec, 375, affirming 12 Comp. Dec, 678.) 
 
 The incidental expenses incurred by a special 
 examiner of the Pension Office in investigating 
 the sufficiency of the sureties on a pension 
 agent'sbond, by direction of the Interior Depart- 
 ment, are a proper charge against the appropria- 
 tion for investigation of pension cases. (2 
 Comp. Dec, 444; but see act Aug. 5, 1909, 36 
 Stat., 125; and see above, "Certificate of suffi- 
 ciency," under "IV. Form of Bond.") 
 
 When the Secretary of the Navy, in order to 
 ascertain the sufficiency of the sm'eties on the 
 bond of a pay officer, as is required of him by 
 section 5 of the act of March 2, 1895 (28 Stat., 
 807), orders certain evidence to be procured by 
 the officer himself, the latter is entitled to be 
 reimbursed for the expenses inciuTed in execut- 
 ing the order. (3 Comp. Dec, 135; but see act 
 Aug. 5, 1909, 36 Stat., 125.) 
 
 Rate of premium. — The provision of the 
 act of August 5, 1909 (36 Stat., 125), regulating 
 the charge which may be made by surety or 
 bonding companies for becoming surety on the 
 official bonds of officers or employees of the 
 United States, contemplates that the charge 
 shall not be more than 35 per cent above the 
 
 495 
 
Sec. 1386. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 rate paid during 1908 on any bond belonging to 
 the same general class, proAided that charge 
 did not constitute an isolated instance of an 
 unusual or extortionate premium. (27 Op. 
 Atty. Gen., 597.) 
 
 In determining what the charge was during 
 1908 for other bonds of like character, depart- 
 ments may exclude any premium which was 
 60 high as to be outside the range of the usual 
 or customary charge, and include any charge 
 even though it be the highest paid, if it be not 
 so high as to fall \vithin the inhibition above 
 stated. (27 Op. Atty. Gen., 597.) 
 
 The rate of premium paid by the incumbent 
 of any particular office during 1908 on an offi- 
 cial bond may be used as the base for computing 
 the rate which shall be paid upon the bond of 
 the incumbent of the same office under the act 
 of August 5, 1909, provided such rate did not 
 constitute an isolated instance of an unusual or 
 extortionate premium. (28 Op. Atty. Gen. , 28. ) 
 
 The act of August 5, 1909, applies to bonds 
 running to the United States, and which are 
 accepted in each case by the properly desig- 
 nated officer of the United States; but does not 
 apply to bonds voluntarily given by an em- 
 ployee or officer of the United States to a su- 
 perior officer. (28 Op. Atty. Gen., 28.) 
 
 Failure to give new bond. — ^\^lere a stat- 
 ute was enacted increasing the amount of bond 
 required of disbursing officers in the Navy, 
 and providing that from and after a specified 
 date no person shall act in the capacity of such 
 disbursing officer who shall not enter into such 
 bond as required, disbursing officers who have 
 neglected to give bond on or before the speci- 
 fied date "are out of office by the neglect," and 
 can no longer, "without a new appointment" 
 act in the character of such officers. (5 Op. 
 Atty. Gen., 706; see also U. S. v. Zantzinger, 28 
 Fed. Cas. No. 16785; 13 Comp. Dec, 375.) 
 
 Sec. 1384. [Supply Corps ; new bonds required.] Officers of the Pay Corps 
 shall give new bonds with sufficient sureties, whenever required to do so by 
 the Secretary of the Navy.— (26 Aug., 1842, c. 206, s. 4, v. 5, p. 535.) 
 
 Amendment to this section was made by act of 
 July 11, 1919 (41 Stat., 147), which changed 
 the designation of the Pay Corps to "Supply 
 Corps." 
 
 See note to section 1383, Revised Statutes, 
 under "V. Sufficiency of Sureties," "IX. 
 Liability of Sureties," and "X. Aliscella- 
 neous; " see also act of March 2, 1895, sec- 
 tion 5 (28 Stat., 807). 
 
 Sec. 1386, [Supply Corps; bonds not affected by new commissions.] The 
 issuing of a new appointment and commission to any officer of the Pay Corps 
 shall not affect or annul any existing bond, but the same shall remain in force, 
 and apply to such new appointment and commission. — (3 IVIar., 1871, c. 117, 
 s. 6,.v. 16, p. 536.) 
 
 Amendment to this section was made bv act of 
 July 11, 1919 (41 Stat., 147), which changed 
 the designation of the Pay Corps to "Supply 
 Corps." 
 
 See note to section 1383, Revised Statutes, 
 under "VII. Condition of Bond — binds 
 
 officer as long as he remains in office;" and 
 "IX. Liability of Sureties — ^where new 
 bond is given.'' See also 10 Oomp. Dec, 
 44, noted under section 1383, Re\Tsed Stat- 
 utes, "X. Miscellaneous." 
 
 Sec. 1386. [Supply Corps ; when clerks allowed officers. Repealed.] 
 
 This section provided as follows: 
 
 "Sec. 1386. Paymasters of the fleet, paymas- 
 ters on vessels having complements of more than 
 one hundred and seventy-five persons, on sup- 
 ply-steamers, store-veasels, and recei\ing-ships, 
 pay masters at stations and at theNaval Academy, 
 and paymasters detailed at stations as inspectors 
 of provisions and clothing, shall each be allowed 
 a clerk."— (14 July, 1862, c. 164, s. 3, v. 12, p. 
 565; 26 May, 1864, c. 96, v. 13, p. 92.) 
 
 It -was repealed by act of March 3, 1915 (38 
 Stat., 942, 943), which made provision for the 
 appointment of acting pay clerks, pay clerks, 
 and chief pay clerks to the total number of one 
 for each 250 enlisted men allowed by law in the 
 Na^^, and provided that said clerks "shall be 
 assigned to duty with pay officers under such 
 rules as the Secretarj- of the NaA'y may pre- 
 scribe." For number of enlisted rnen allowed 
 by law, see note to section 1417, Revised Stat- 
 utes. See also act of May 22, 1917 (40 Stat., 84), 
 as amended by act of July 1, 1918 (40 Stat., 715), 
 
 providing for temporary appointment of addi- 
 tional officers for service during the existing war. 
 
 It had previously been amended by 
 clauses in the annual naval appropriation act, 
 under the heading, "Pay of the Navy," increas- 
 ing the number of positions for which such 
 clerks were allowed, the latest amendment hav- 
 ing been contained in the act of August 22, 1912 
 (37 Stat., 328), which made appropriation for 
 "clerks to paymasters at yards and stations, 
 general storekeepers ashore and afloat, and re- 
 ceiving ships and other vessels; two clerks to 
 general inspectors of the Pay Corps; one clerk 
 to pay officer in charge of deserters' rolls; not 
 exceeding ten clerks to accounting officers at 
 yards and stations. ' ' 
 
 Pay, allowances, and retirement. — By 
 actof Mayl3, 1908(35Stat., 128), it was provided 
 that "all paymasters' clerks shall, while on duty, 
 receive the same pay and allowances as warrant 
 officers of Uke length of service in the Na-vy;" 
 this provision was superseded by the following 
 
 496 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1389. 
 
 clause in the act of June 24, 1910 (36 Stat., 606): 
 "All paymasters' clerks shall, while holding 
 appointment in accordance with law, receive 
 the same pay and allowances and have the 
 same rights of retirement as warrant officers of 
 like length of service in the Navy. ' ' The latter 
 pro\ision was, in turn, superseded by the act of 
 March 3, 1915, above cited, which p^o^'ided 
 that "pay clerks and acting pay clerks shall 
 have the same pay, allowances, and other bene- 
 fits as are now or may hereafter be allowed other 
 warrant officers and acting warrant officers, re- 
 spectively;" and that "all pay clerks shall, 
 after six years' serv'ice as such, be commissioned 
 chief pay clerks and shall on promotion have 
 the rank, pay, and allowances of chief boat- 
 swain." 
 
 The status of clerks to officers of the 
 Pay Corps prior to the act of March 3, 1915, 
 above cited, was the subject of numerous de- 
 cisions. They were held not officers of the 
 Navy in the case of United States v. Mouat (124 
 U. S., 303); were held to be officers in a qualified 
 sense in the case of United States v. Hendee (124 
 U. S., 309); and were held to be officers in the 
 constitutional as well as the popular sense, by 
 the Attorney General, in view of certain changes 
 
 which had been made in the Navy Regulations 
 (27 Op. Atty. Gen., 157); but a contrary opinion 
 was expressed by the Court of Claims in the 
 case of Ashton v. United States (51 Ct. Cls., 65), 
 which modified a previous decision by that 
 court in the case of Katzer v. United States (49 
 Ct. Cls., 294). 
 
 They were at all times held amenable to trial 
 by court-martial as oflicers of the Navy (see Ex 
 parte Reed, 100 U. S. 13; Johnson v. Sayre, 158 
 U. S.,109; U. S. V. Bogart, 24 Fed. Cas. No. 
 14616; In re Reed, 20 Fed. Cas. No. 11636; In 
 re Bogart, 3 Fed. Cas. No. 1596; but see. Ex 
 parte Van Vranken, 47 Fed. Rep., 888, reversed 
 163 U. S., 694). 
 
 Their status as officers of the United States is 
 now definitely established by the act of March 
 3, 1915, above cited, which vests the appoint- 
 ment of acting pay clerks in the Secretary of the 
 Navy, the appointment of pay clerks in the 
 President, the same as other warrant officers, 
 and the appointment of chief pay clerks in the 
 President, by and with the advice and consent 
 of the Senate, the same as other commissioned 
 officers of the Navy. (See note to Constitution, 
 Art. II, sec. 2, clause 2, as to who are officers of 
 the United States.) 
 
 Sec. 1387. [Supply Corps ; when clerks not allowed officers. Repealed.] 
 
 This section provided as follows: 
 
 " Sec. 1387. No paymaster shall be allowed a 
 clerk in a vessel having the complement of one 
 hundred and seventy- five persons or less, except- 
 ing in supply-steamers and store-vessels." — (26 
 May, 1864, c. 96, v. 13, p. 92.) 
 
 It was repealed by act of March 3, 1915 (38 
 Stat., 942, 943). 
 
 See note to section 1386, Revised Stat- 
 utes. 
 
 Sec. 1388. [Supply Corps ; clerks to passed assistant and assistant paymasters. 
 Repealed.] 
 
 This section provided as follows: 
 
 "Sec. 1388. Passed assistant paymasters and 
 assistant paymasters attached to vessels of war 
 shall be allowed clerks, if clerks would be 
 allowed by law to paymasters so attached." — (3 
 Mar. 1863, c. 118, s. 5, v. 12, p. 818.) 
 
 It was repealed by act of March 3, 1915 (38 
 Stat., 942, 943). 
 
 See note to section 1386, Revised Stat- 
 utes. 
 
 Sec. 1389. [Supply Corps; loans to officers prohibited.] It shall not be lawful 
 for any paymaster, passed assistant paymaster, or assistant paymaster, to 
 advance or loan, under any pretense whatever, to any officer in the naval 
 service, any sum of money, public or private, or any credit, or any article or 
 commodity whatever. — (26 Aug., 1842, c. 206, s. 6, v. 5, p. 536. 22 June, 
 1860, c. 181, s. 3, V. 12, p. 83.) 
 
 Secretary of the Navy in advance of travel, 
 and may be paid for prior to actual per- 
 formance of the travel involved. (Act 
 Apr. 27, 1904, sec. 1, 33 Stat., 403.) 
 No money shall be paid to any person as com- 
 pensation who is in arrears to the United 
 States. (Sec. 1766, R. S. See note to sec. 
 236, R. S., under "VI. Set-off." 
 The words, "paymaster, passed as- 
 sistant paymaster, or assistant pay- 
 master," as used in the above section, have 
 been construed to include "any officer of the 
 Supplv Corps." (See Art. 1745, Na\y Regs., 
 1920.)" 
 
 Advances of pay to naval officers in certain 
 cases are authorized by sections 1563 and 
 3648, Revi.sed Statutes, as modified by act 
 of March 4, 1917 (39 Stat., 1181), and are 
 prohibited in other cases by the latter 
 section. 
 
 Loans of public money or unauthorized with- 
 drawals thereof by any disbursing officer 
 are punishable as embezzlement by sec- 
 tion 87 of the Criminal Code, act of March 4, 
 1909_ (35 Stat., 1105). See section 1624, 
 Revised Statutes, article 14. 
 
 Mileage books and transportation tickets may 
 be furnished officers and others by the 
 
 497 
 
Sec. 1390. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 An order of the commanding officer, 
 
 ])ursuant. to section 285, Revised Statutes, does 
 not authorize an advance of public money by 
 
 an officer of the Supply Corps to the command- 
 ing officer or to any other person by his order. 
 (Art. 1749 (2), Navy Regs., 1920.) 
 
 Sec. 1390. [Engineer Corps ; organization of . Superseded.] 
 
 Tills section provided as follows: 
 
 "Sec. 1390. The active list of the Engineer 
 Cor])s of the Navy shall consist of seventy 
 chief engineers, wno shall be divided into 
 three grades, by relative rank, as pro\dded in 
 Chapter Four of this Title; 
 
 "Ten chief engineers; 
 
 "Fifteen chief engineers; and 
 
 "Forty-five chief engineers, who shall have 
 the relative rank of lieutenant commander or 
 lieutenant. 
 
 ' ' And each and all of the above-named officers 
 of the Engineer Corps shall have the pay of 
 chief engineers of the Navy, as now provided. 
 
 "One hundred first assistant engineers, who 
 shall have the relative rank of lieutenant or 
 master; and 
 
 "One hundred second assistant engineers, 
 who shall have the relative rank of master or 
 ensign; and the said assistant engineers shall 
 ha^■e the pay of first and second assistant engi- 
 neers of the Navy respectively, as now pro- 
 wled."— (3 Mar., 1871, c. 117, s. 7, v. 16, p. 
 536; 24 Feb., 1874, c. 35, v. 18, p. 17.) 
 
 It was amended by act of February 24, 1874, 
 section 1 (18 Stat., 17), which changed the title 
 of first assistant engineer to passed assistant 
 engineer, and changed the title of second assist- 
 ant engineer to assistant engineer. 
 
 It was superseded by act of August 5, 1882, 
 section 1 (22 Stat., 286), which provided that 
 the active list of the Engineer Corps should 
 thereafter consist of 10 chief engineers with the 
 relative rank of captain, 15 chief engineers with 
 the relative rank of commander, 45 chief engi- 
 neers with the relative rank of lieutenant com- 
 mander or lieutenant, 60 passed assistant engi- 
 neers, and 40 assistant engineers with the rela- 
 tive rank for each as pre\dously fixed by law. 
 
 By the same act it was provided that when 
 vacancies occurred in any of the grades of the 
 Engineer Corps, "no promotion shall be made 
 to fill the same until the number in said grade 
 shall be reduced below the number which is 
 fixed by the provisions of this act for such 
 grade." 
 
 Further changes were made by act of 
 March 3, 1883 (22 Stat., 472), which provided 
 that thereafter "only one-half of the vacancies 
 in the various grades in the Staff Corps of the 
 Navy shall be filled by promotion until such 
 grades shall be reduced to the numbers fixed for 
 the several grades of the Staff Corps of the 
 Navy" by act of August 5, 1882, above noted; 
 by act of March 2, 1889 (25 Stat., 878), which 
 authorized the appointment of five assistant 
 engineers from among former graduates of the 
 Naval Academy, and "enlarged " the Engineer 
 Corps for the purpose of such additional ap- 
 pointments; and by act of December 16, 1892 
 (27 Stat., 405), which provided that the reduc- 
 tion in the numbers of the Engineer Corps pro- 
 vided for in act of August 5, 1882, "shall be con- 
 sidered as having ceased on the thirtieth day of 
 June, eighteen hundred and ninety -one." 
 
 The Engineer Corps was abolished by 
 
 the Navy personnel act of March 3, 1899 (30 
 Stat., 1004), section 1 of which act provided 
 "that the officers constituting the Engineer 
 Corps of the Navy be, and are hereby, trans- 
 ferred to the line of the NaA^y, and shall be 
 commissioned accordingly." 
 
 As the officers who constituted the Engineer 
 Corps were transferred to the line of the Na^^, 
 it follows that the corps was abolished. But it 
 will be observed that, while such officers were 
 transferred to the hne, the duties of engineers 
 are not abolished. There will continue to be 
 engineers and chief engineers, though under 
 another name. (Denig v. U. S., 37 Ct. Cls., 
 383, 392. See also note to sec. 1393, R. S.) 
 
 The appointment and assignment of 
 line officers for engineering duty only are 
 authorized by acts of February 16, 1914, sec- 
 tion 21 (38 Stat., 283), and August 29, 1916 (39 
 Stat., 580). 
 
 The detail of an officer from the Engi- 
 neer Corps as professor in any established 
 scientific school or college was authorized to be 
 made by the President upon appUcation of such 
 school or college, for the purpose of promoting 
 a knowledge of steam engineering and iron ship- 
 building, such details not at any time to exceed 
 25. (Act Feb. 26, 1879, 20 Stat., 322; see also 
 act Jan. 13, 1891, 26 Stat., 716, and note to sec. 
 1225, R. S.) 
 
 Former engineer officers who under the act 
 of March 3, 1899 (30 Stat., 1004), perform engi- 
 neering duty on shore only "shall be eligible 
 for any shore duty compatible with their rank 
 and grade to which the Secretary of the Navy 
 may assign them." (Act June 30, 1914, 38 
 Stat., 394; act Mar. 3, 1915, 38 Stat., 930; see 
 note to sec. 1404, R. S.) 
 
 The effect of the act of March 3, 1915 (38 
 Stat., 930), so far as concerns former engineer 
 officers now of the line is to remove the restric- 
 tion which existed in the case of certain of said 
 officers by which they were eligible only for 
 engineering duty on shore. Such officers are 
 now eUgible for any shore duty assignable to 
 other hne officers of their rank. (File 26806- 
 140, June 9, 1916.) 
 
 Line officers assigned to engineering duty 
 only shall retain "the right to succession to 
 command on shore in accordance with their 
 seniority." (Act Aug. 29, 1916, 39 Stat., .580.) 
 
 The detail of an officer from the Engineer 
 Corps of the Army or Navy as superintendent 
 of the State, War, and Navy Department build- 
 ing was authorized by act of March 3, 1883 (22 
 Stat., 553.) 
 
 The transfer of the Engineer Corps of the 
 Navy to the line by the Navy personnel act of 
 March 3, 1899 (30 Stat., 1004), does not preclude 
 the appointment of a naval officer on the active 
 list, formerly an ofticer of that corps, and now 
 restricted to the performance of engineering 
 duty, to the superintendency of the State, War, 
 and' Navy building, as provided in the act of 
 
 498 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1393. 
 
 March 3, 1883 (22 Stat., 553). (25 Op. Atty. Gen., 
 508.) 
 
 The act of March 3, 1883, does not authorize 
 the detail as superintendent of the State, War, 
 and Navy building of a retired officer of the 
 Na\-j' transferred from the Engineer Corps to 
 the Line for engineering duty only by the Navy 
 personnel act of March 3, 1899. (25 Op. Atty. 
 Gen., 508; see also note to sec. 1462, R. S.) 
 
 The detail of officers in the Engineer Corps in 
 the Army or Navy to perform services under the 
 act of March 12, 1914 (38 Stat., 305), providing 
 for the location, construction, and operation of 
 railroads in the Territory of Alaska, was author- 
 ized by section 1 of that act. 
 
 "Grades" and "ranks" in Engineer 
 Corps. — Under this section it was held that 
 chief engineers constituted only one grade in 
 the Na\y, although divided into four different 
 ranks; that their rank changed with their 
 
 seniority in that grade, but such change of 
 rank did not constitute a change in office or 
 grade; accordingly, that their changes in rank 
 might be indicated by notification from the 
 Secretary of the Navy, and that no examina- 
 tion or appointment or confirmation by the 
 Senate was necessary; that the mere fact that 
 different rank is assigned to officers whose 
 office is designated by the same title does not 
 necessarily put such officers in different grades; 
 the office remains the same. (20 Op. Atty. 
 Gen., 358, citing Wood v. U. S., 107 U. S., 
 414, as to difference between rank and office; 
 and explaining 16 Op. Attv. Gen., 417; see 
 also Rutherford v. U. S., IS Ct. Cls., 339; 
 and see note to Constitution, Art. II, sec. 3, 
 under "Advancement in rank only." As to 
 difference between "rank" and "grade," see 
 generally, notes to sees. 1362 and 1457, R. S.) 
 
 Sec. 1391. [Engineer Corps; appointments in, how made. Superseded.] 
 
 It was superseded by the Xa\y personnel 
 act of March 3, 1899 (30 Stat., 1004), by which 
 the Engineer Corps was abolished. (See note 
 to preceding section.) 
 
 This section provided as follows: 
 
 "Sec. 1391. Engineers shall be appointed 
 by the President, by and with the advice and 
 consent of the Senate." — (31 Aug., 1842, c. 
 279, 8. 6, V. 5, p 577. 3 Mar., 1845, c. 77, 
 8. 7, V. 5, p. 794. 25 July, 1866, c. 231, s. 7, 
 V. 14, p. 223.) 
 
 Sec. 1392. [Engineer Corps; qualifications for appointment and promotion. 
 Superseded.] 
 
 This section provided as follows: 
 
 "Sec. 1392. No person under nineteen or 
 over twenty-six years of age shall be appointed 
 a second assistant engineer in the Na\^; nor 
 shall any person be appointed or promoted in 
 the Engineer Corps until after he has been 
 found qualified by a board of competent 
 engineers and medical officers designated by 
 the Secretary of the Navy, and has complied 
 with existing regulations." — (3 Mar., 1871, c. 
 117, s. 8, V. 16, p. 536; 24 Feb., 1874, c. 35, 
 V. 18, p. 17.) 
 
 It was superseded hy act of August 5, 1882 
 (22 Stat., 285), as amended by acts of March 2, 
 1889 (25 Stat., 878), and July 26, 1894 (28 
 Stat., 124), noted more fully iinder sections 
 1394 and 1521, Re\dsed Statutes, which made 
 provision for the filling of all vacancies in the 
 Engineer Corps by appointment from graduates 
 of the Naval Academy. See also note to section 
 1390, Re\dsed Statutes, concerning the abolish- 
 ment of the Engineer Corps, and see U. S. v. 
 Redgrave, 116 U. S., 474, in which this section 
 was cited . 
 
 Sec. 1393. [Engineer of the fleet.] The President may designate among 
 the chief engineers in the service, and appoint to every fleet or squadron, an 
 engineer, who shall be denominated "engineer of the fleet." — (21 Apr., 1864, 
 c. 63, s. 7, V. 13, p. 54.) 
 
 Pay of fleet engineers was fixed at $4,400 per 
 annum, by section 1556, Revised Statutes. 
 See note to that section. 
 See section 1373, Re\dsed Statutes, as to ap- 
 pointment of fleet singeons; and section 
 1382, Revised Statutes, as to appointment 
 of fleet paymasters. 
 Section 1393 is not repealed by the 
 NaA^ personnel act of March 3, 1899 (30 Stat., 
 1004), abolishing the Engineer Corps of the 
 Navy. The office of "engineer of the fleet" 
 continues, notwithstanding the provision in 
 the later statute that ' 'the officers constituting 
 the Engineer Corps of the Navy are transferred 
 to the line of the Navy and shall be com- 
 missioned accordingly." The duties of chief 
 engineer in the Na\'y continue, though the 
 officers have become merged in the line and 
 are designated by another name. (Denig v. 
 U. S., 37 Ct. Cls., 383.) 
 
 What ofl&cers eligible for appointment 
 as fleet engineer. — It was held by the 
 Comptroller of the Treasmy (7 Comp. Dec, 
 24) that as the Navy personnel act of !March 
 3, 1899 (30 Stat., 1004), practically abolished 
 the Engineer Coi-ps of the Na\'y, and with it 
 the grade of chief engineer, by transferring 
 that cor]3S to the line, the provision of section 
 1556 of the Revised Statutes for a special rate 
 of pay for engineers of the fleet became inopera- 
 tive, since there existed thereafter no grade 
 from which the President might designate 
 engineers of the fleet in pursuance of section 
 1393. The Court of Claims, however, in the 
 case of Denig v. U. S., above cited, laid down 
 a different rule and held that, where an of- 
 ficer of the Naw who on March_ 3, 1899, 
 belonged to the grade of chief engineer, has 
 since that date been duly designated to per- 
 form the duties of engineer of the fleet, he is 
 
 499 
 
Sec. 1393. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 entitletl ti> the pay provided for that position 
 by section 155() of tne Revised Statutes, not- 
 withstanding the ])nivisiiiu of the Navy per- 
 sonnel act transferrint!; the Coros of Engineers 
 to the line of the Navy. The comptroller 
 subsequently followed the decision of the 
 Court of Claims in the Denig case, and laid 
 down the rule as follows (8 ('omp. Dec, 842): 
 "An oliicer of the Navy who, on March 3, 
 1899, belonged to the grade of chief engineers 
 and who was duly designated as engineer of 
 the fleet, ib entit led to pay at the rate of $4,400 
 per annum while performing such duty." 
 Both the Denig case and the above decision 
 were limited by the fact that the officer was a 
 chief engineer on March 3, 1899, the date the 
 Navy personnel act was approved. (9 Comp. 
 Dec, 301.) 
 
 It must be conceded, as stated by the Court 
 of Claims, that the duties of chief engineers 
 were not abolished by the Navy personnel act; 
 that it was therefore in the power of the Presi- 
 dent to designate some officer to perform those 
 duties; and that whether he designated such 
 officer to perform them as chief_ engineer or by 
 some other title is immaterial in so far as the 
 performance of the duties is concerned. The 
 Court of Claims has decided that the change 
 effected by the Navy personnel act was merely 
 a change of name or of official title; accepting 
 this decision as a judicial interpretation of the 
 law, the distinction is immaterial between the 
 case of a person who was a chief engineer at the 
 time the law was changed and who continued 
 to perform the duties of chief engineer, and the 
 case of a person who was a passed assistant engi- 
 neer at the time and who continued to perform 
 the duties of passed assistant engineer until 
 promoted to lieutenant commander and as- 
 signed to the duties of chief engineer. If the 
 former is held to be a chief engineer under a 
 different official title, the latter may also be. 
 The Navy Regulations proceed upon the theory 
 that the limitation of appointments of engineers 
 of the fleet to the grade of chief engineer no 
 longer applies, and that the statute is satisfied 
 if such appointments are made from among 
 lieutenant commanders, irrespective of whether 
 the appointees were formerly chief engineers or 
 not. Accordingly, held that an officer of the 
 Navy who, on March 3, 1899, belonged to the 
 grade of passed assistant engineer with the 
 relative rank of lieutenant, and who was sub- 
 sequently promoted to the grade of lieutenant- 
 commander and thereafter designated an engi- 
 neer of the fleet, is entitled to pay at the rate of 
 $4,400 per annum while performing such duty, 
 under authority of section 1556, Revised Stat- 
 utes. (9 Comp. Dec, 301.) 
 
 Retired officer eligible for appointment 
 as fleet engineer. — A retired officer of the 
 Navy is "in the service " within the meaning of 
 section 1393, and therefore eligible for assign- 
 ment to said duties. A lieutenant-commander 
 in the Navy who was retired with the rank of 
 commander and afterwards assigned to sea duty 
 under the act of June /, 1900 (.31 Stat., 703), aa 
 lleet engineer, was entitled while serving under 
 that assignment to the pay of a fleet engineer, 
 which is $4,400 per annum. (12 Comp. Dec, 
 185; compare 25 Op. Atty. Gen., 508, noted 
 
 under sec. 1390, R. S.; see also not(^ to sec. 
 1462, R. S.) 
 
 Appointment does not require advice 
 and consent of the Senate. — Section 1393, 
 Revised Statutes, authorizes the President to 
 appoint an engineer of the fleet; the consent of 
 the Senate not having been required by Con- 
 
 fress, such consent is unnecessary, and the 
 'resident may make such appointment with- 
 out submitting the same to the Senate for con- 
 firmation. _ (22 Op. Atty. Gen., 82.) 
 
 It is universally true that when Congress, in 
 pursuance of its authority imder the provision 
 of the Constitution (Art. II, sec. 2, clause 2), 
 sees fit to give the sole power of appointment to 
 the President, it does so by language appropri- 
 ate to that end, such as the imqualified phrase 
 "may appoint." Under such language the 
 President is vested with power of appointing 
 alone. (23 Op. Atty. Gen., 136.) _ 
 
 For other cases, see note to Constitution, Art. 
 II, sec. 2, clause 2, under, "II. Constitutional 
 power of appointment." 
 
 Section 1393 is rather permissive of a 
 power that existed in the President to designate 
 fleet engineers when in his judgment they be- 
 come necessary, though said section carries 
 with it the right to the additional compensation 
 provided for by section 1556. The necessity 
 for the appointment of a fleet engineer must be 
 left to the discretion of the President, and when 
 he acta the presumption is that he has per- 
 formed his duty according to law. (Denig v. 
 U. S., 37 Ct. Cls., 383, 393.) 
 
 Secretary of the Navy acts for the Presi- 
 dent. — The provision of the statute is satisfied 
 when the Secretary of the Navy, acting, as he 
 does in such matters, for the President, ap- 
 proves the designation of officers selected by a 
 commander in chief to act as his general staff. 
 (Denig v. U. S., 37 Ct. Cls., 383, 391. See also 
 note to sec. 1382, R. S.) 
 
 Under sections 1373, 1382, and 1393, Revised 
 Statutes, which authorize the designation and 
 appointment by the President of certain officers 
 of the fleet, officers designated and appointed 
 by an order of the commander in chief of a 
 naval force, approved by the Secretary of the 
 Navy, are entitled to the pay provided for 
 those positions, respectively, from the date of 
 such approval. (5 Comp. Dec, 888.) 
 
 Chief of Bureau of Navigation does not 
 act for the President. — An officer ordered by 
 the Chief of the Bm-eau of Navigation to duty 
 as fleet engineer is not entitled to the pay pro- 
 vided by section 1556, Revised Statutes, for fleet 
 engineers. To entitle an officer to the pay of 
 fleet engineer, such designation must be made 
 by the Secretary of the Navy acting for the 
 President. There is no authority for the Chief 
 of the Bureau of Navigation to act for the Presi- 
 dent in making such designation. (Comp. 
 Dec, Feb. 14, 1912, 132 S. and A. Memo., 1994. 
 See also Truitt v. U. S., 38 Ct. Cls., 398, and 
 Weller v. U. S., 41 Ct. Cls., 324, 336, noted 
 under sec. 158, R. S.) 
 
 Commander in chief acts for President 
 when authorized by Navy Regulations. — 
 The statute requires the appointment to be 
 made by the President. However, the Navy 
 Regulations of 1900 (par. 2 of art. 367), provide 
 
 500 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1395. 
 
 that "when not designated by the department, 
 the senior engineer, medical, pay, and marine 
 officers of the fleet or squadron may be detailed 
 by the commander in chief to act as fleet staff 
 officers. ' ' The Navy Regulations are issued by 
 the authority of the President. The above pro- 
 vision must therefore be construed as authority 
 from him to the commander in chief of a naval 
 force, under certain conditions, to designate cer- 
 tain officers to act as fleet officers, and the action 
 of the commander in chief in pursuance of the 
 regulation becomes the action of the President. 
 TVliere the designation of an engineer of the 
 fleet was made in accordance with the above 
 regulation, he is entitled to the pay of fleet engi- 
 neer from the date of his designation as such; if 
 not, the beginning of such pay dates from the 
 time when his designation was approved by the 
 department. (9 Comp. Dec, 301, citing 5 
 Comp. Dec, 889.) [Art. 367 (2) Navy Regs., 
 1900, was embodied in Navy Regulations, 1913, 
 ae art. R-1826 (2), except that the latter article 
 did not authorize the commander in chief to 
 designate the senior engineer as a fleet staff 
 officer, the engineer of the fleet under said 
 Regulations not being a member of the fleet 
 staff, but instead, under arts. R-1816, 1817, 
 being made a member of the personal staff of 
 the commander in chief. By changes in Navy 
 Regulations and Instructions, No. 6, of Apr. 15, 
 
 1916, the designations "personal" staff and 
 "fleet staff" were abolished.] 
 
 The duties of a fl.eet engineer, as defined 
 by Naval Instructions, are duties relating to the 
 vessels of a fleet, in connection with their stores, 
 engines, boilers, machinery, etc., and the exer- 
 cise of supervision over the other engineer offi- 
 cers of the fleet, rather than duties of a pecu- 
 liarly confidential and personal nature to the 
 commander in chief; and are not in themselves 
 of a character for the performance of which the 
 law confers additional pay aa aid. (Comp. 
 Dec, June 10, 1914, 160 S. and A. Memo., 3256; 
 see also act May 13, 1908, 35 Stat., 128, as to 
 pay of aids to rear admirals.) 
 
 An engineer of the fleet is a member of the 
 fleet staff of a flag officer, and as such has special 
 duties to perform, in consideration of which he 
 receives increased pay. The position is some- 
 what analogous in this respect to that of aid, 
 who is a member of the personal staff of the flag 
 officer, and who receives additional pay for the 
 additional services performed as such. (12 
 Comp. Dec, 185.) [Under Navy Regulations, 
 1913, the fleet en^eer was not a member of the 
 fleet staff, but of the personal staff of the flag 
 officer. By changes in Navy Regulations and 
 Instructions, No. 6, of Apr. 15, 1916, the desig- 
 nations "personal" staff and "fleet staff" were 
 abolished.] 
 
 1394. [Engineer Corps; appointments from cadet engineers. Super- 
 
 Sec, 
 seded.] 
 
 This section provided as follo"ws: 
 
 "Sec. 1394. Cadet engineers who are gradu- 
 ated with credit in the scientific and mechan- 
 ical class of the Naval Academy may, upon the 
 recommendation of the academic board, be ap- 
 pointed by the President and confirmed by 
 the Senate as second assistant engineers." — (31 
 Aug., 1842, c 279, s. 6, v. 5, p. 577; 4 July, 
 1864, c 252, B. 2, v. 13, p. 393- 24 Feb., 1874, 
 c. 35, V. 18, p. 17.) 
 
 It was amended by act of February 24, 1874, 
 section 1 (18 Stat., 17), which changed the title 
 of second assistant engineer to "assistant engi- 
 neer." 
 
 It was superseded by act of August 5, 1882 
 (22 Stat., 285), which provided that thereafter 
 no appointments of cadet-engineers should be 
 made to the Naval Academy, but that all under- 
 graduates at the Academy should be styled 
 naval cadets, and final graduates of the acad- 
 emy should be appointed to the line and Engi- 
 neer Corps of the Navy, and to the Marine 
 Corps, as necessary to fill vacancies. 
 
 Said act was in turn superseded by act of 
 March 2, 1889 (25 Stat., 878), which made pro- 
 vision for separating students at the Naval 
 Academy into a "line and Marine Corps divi- 
 sion," and an "Engineer Corps division," and 
 provided that "the vacancies in the lowest 
 grades of the commissioned officers of the Engi- 
 neer Corps of the Navy" should be filled "by 
 appointments from the final graduates of the 
 engineer division at the end of their six years' 
 
 Sec. 1395. [Chaplains; number and appointment of.] There shall be in the 
 Navy, for the pubUc armed vessels of the United States m actual service not 
 exceeding twenty-four chaplains, who shall be appointed by the President 
 
 course," and that "if the number of vacancies 
 in the lowest grades aforesaid, occurring in any 
 year shall be greater than the number of final 
 graduates of that year, the surplus vacancies 
 shall be filled from the final graduates of fol- 
 lowing years, as they shall become available." 
 
 The latter act was amended by act of July 
 26, 1894 (28 Stat., 124), which provided that, 
 in case the number of vacancies in the grade of 
 assistant engineer should exceed the number of 
 naval cadets in the engineer division of the 
 class finally graduated in any one year, the 
 Secretary of the Navy should select a number 
 equal to such excess from the final graduates of 
 said class in the line di\dsion, and such final 
 graduates should be appointed to fill vacancies 
 in the grade of assistant engineer. 
 
 The appointment of cadet engineers to 
 the Naval Academy was authorized by section 
 1522, Revised Statutes. ^ The act of August 5, 
 1882, above noted, prohibited further appoint- 
 ments of cadet-engineers and changed the title 
 of all undergraduates at the Naval Academy to 
 "naval cadets." This title of naval cadet was 
 changed to "midshipman" by act of July 1, 1902 
 (32 Stat., 686). 
 
 The Engineer Corps w^as abolished by 
 the Navy personnel act of March 3, 1899, noted 
 above, under section 1390, Re\'ised Statutes. 
 
 See section 1521, Revised Statutes, and 
 U. S. f. Redgrave (116 U. S., 474), in which 
 this section was cited. 
 
 501 
 
Sec. 1397. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 with the advice and consent of the Senate. — (21 Apr., 1806, c. 35, s. 3, v. 2, 
 p. 390. 16 Apr., 1814, c. 58, s. 5, v. 3, p. 125. 4 Aug., 1842, c. 121, s. 1, v. 
 5, p. 500.) 
 
 Amendment to this section was made by act of 
 June 30, 1914 (38 Stat., 403), which created 
 the grade of acting chaplain in the Na\^ 
 and pro^dded that "hereafter the total 
 number of chaplains and acting chaplains 
 in the Navy shall be one to each twelve 
 hundred and fifty of the total personnel of 
 the Navy and Marine Corps as fixed by law, 
 including midshipmen, apprentice seamen, 
 and naval prisoners." The same act pro- 
 \rided that "original appointments" should 
 be made by the Secretary of the Navy in 
 the grade of acting chaplain, and that acting 
 chaplains should be commissioned as chap- 
 lains after three years' sea service, and after 
 successfully passing the prescribed exami- 
 nation. '^Provided, That not more than 
 seven acting chaplains shall be commis- 
 sioned chaplains in any one year." The 
 
 act of May 22, 1917 (40 Stat., 85), as 
 amended By act of July 1, 1918 (40 Stat., 
 715), which temporarily increased the per- 
 sonnel of the Navy, provided (sec. 4) that 
 ''temporary chaplains and temporary act- 
 ing chaplains in the Navy may be ap- 
 pointed for service during the period of 
 the war in the proportion of the personnel 
 of the Navy as now prescribed by existing 
 law." 
 
 Pay of chaplains: See act of August 29, J 916 
 (39 Stat., 581), providing that " hereafter 
 all commissioned officers of the active list 
 of the Navy shall receive the same pay 
 and allowances according to rank and 
 length of service." (See also note to sec. 
 1556, R. S.) 
 
 Rank of chaplains: See act of June 30, 1914 
 (38 Stat., 403). 
 
 Sec. 1396. [Chaplains; qualifications of.] A chaplain shall not be less 
 than twenty-one nor more than thirty-five years of age at the time of his 
 appointment. — (14 July, 1862, c. 164, s. 7, v. 12, p. 565.) 
 
 Amendment to this section was made by act of 
 June 30, 1914 (38 Stat., 403), which pro- 
 vided that chaplains should be commis- 
 sioned from acting chaplains who shall have 
 had three years' sea service, and shall have 
 established their physical, mental, moral, 
 and professional fitness to the satisfaction 
 of the Secretary of the Navy by examina- 
 tion by a board of chaplains and medical 
 officers of the Navy. 
 Temporary chaplains and temporary acting 
 chaplains appointed for war service in 
 accordance with act of May 22, 1917, sec- 
 tion 5 (40 Stat., 85), as amended by act of 
 July 1, 1918 (140 Stat., 716), shall be not 
 more than 50 years of age. Special age 
 limits were also prescribed for officers 
 transferred to the Regular Na\'y from the 
 temporary Navy and Naval Reserve Force, 
 by act of June 4, 1920, section 5 (41 Stat., 
 835). 
 Age of candidates for appointment. — See 
 cases noted under section 1370, Revised Stat- 
 utes. 
 
 The act of June 30, 1914, does not prescribe 
 the age limit of appointees as acting chaplains. 
 Section 1396, Revised Statutes, prescribes that 
 chaplains on the date of appointment as such 
 shall be between the ages of 21 and 35 years, 
 and not being specifically repealed, and not 
 being in conflict with the act of 1914, still 
 governs appointments to the grade of chaplain. 
 If, after serving at least three years in the grade 
 of acting chaplain, appointees as chaplains must 
 be between the ages of 21 and 35 years, the act 
 of 1914 impliedly requires that appointees as 
 acting chaplains shall be of such an age at the 
 time of appointment that when they have 
 served at sea as acting chaplains for at least 
 three years it will be possible for them to 
 qualify under the terms of section 1396 for 
 appointment as chaplains. (File 15721-7, 
 Aug. 31, 1914.) 
 
 The Secretary of the Navy has instructed that 
 acting chaplains at the time of appointment as 
 such shall be between the ages of 21 and 31^ 
 years. (File 15721-15, Feb. 11, 1918.) 
 
 Sec. 1397. [Chaplains; form of worship.] Every chaplain shall be permitted 
 to conduct pubHc worship according to the manner and forms of the church 
 of which he may be a member. — (1 June, 1860, c. 67, s. 1, v. 12, p. 24.) 
 
 Commanders of vessels and naval stations to 
 which chaplains are attached shall cause 
 divine service to be performed on Sunday 
 whenever the weather and other circum- 
 stances allow it to be done. (Sec. 1624, 
 R. S., art. 2.) 
 
 Officers, seamen, and others in the naval service 
 are earnestly recommended diligently to 
 attend at every performance of the worship 
 of Almighty God. (Sec. 1624, R. S., art. 2.) 
 
 Students at Naval Academy not to pursue 
 studies on Sunday. (Sec. 1526, R. S.) 
 
 General courts-martial are enjoined to sit 
 from day to day "Sundays excepted." 
 (Sec. 1624, R. S., art. 45.) Unnecessary 
 work on Sundays by persons under naval 
 jurisdiction is prohibited by Naval In- 
 structions, 1913 (art. 86), and General 
 Order No. 456, March 15, 1919. _ 
 Unbecoming behavior during divine service 
 shall be punished as a general or summary 
 court-martial may direct. (Sec. 1624, 
 R. S., art. 3.) 
 
 502 
 
Tlie Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1400. 
 
 Sec. 1398. [Chaplains; annual report by.] Chaplains shall report annually 
 to the Secretary of the Navy the official services performed by them. — (1 June, 
 1860, c. 67, s. 1, V. 12, p. 24.) 
 
 (Sec. 101, Criminal Code, act Mar. 4, 1909, 
 35 Stat., 1107.) 
 
 Neglect or refusal of any officer to make any re- 
 port within the time prescribed by law is 
 punishable by fine of not more than $1,000. 
 
 Sec. 1399. [Professors of Mathematics, number of.] The number of pro- 
 fessors of mathematics in the Navy shall not exceed twelve. — (3 Aug., 1848, 
 c. 121, s. 12, V. 9, p. 272. 31 May, 1872, c. 240, s. 1, v. 17, p. 192. 
 
 "Hereafter no further appointments shall be 
 made to the corps of professors of mathe- 
 matice, and that corps shall cease to exist 
 upon the death, resignation, or dismissal of 
 the officers now carried in that corps on the 
 active and retired lists of the Navy." 
 (Act Aug. 29, lOlfr, 39 Stat._, 577.) 
 Rank of professors of mathematics: See section 
 1480, Revised Statutes. 
 
 Historical note. — The act of August 3, 1848, 
 section 12 (9 Stat., 272), provided, "That the 
 number of professors of mathematics in the 
 Navy shall not exceed twelve; that they shall 
 be appointed and commissioned by the Presi- 
 dent of the United States, by and with the ad- 
 vice and consent of the Senate, and shall per- 
 form such duties as may be assigned them by 
 order of the Secretary of the Navy, at the Naval 
 School, the Ob8er\'atory, and on board ships of 
 war, in instructing the midshipmen of the Navy 
 or otherwise." 
 
 The act of May 21, 1864, section 3 (13 Stat., 
 85), provided, '"that there shall be added three 
 professors to the number of professors of mathe- 
 matics now authorized by law, who shall be 
 appointed and commissioned as now pro^dded 
 by law, and who shall be a professor of ethics 
 and English studies, a professor of Spanish, and 
 a professor of drawing, at the Naval Academy." 
 
 By act of April 17, 1866, section 7 (14 Stat., 
 38), it was provided ' ' that hereafter no vacancy 
 in the grade of professor of mathematics in the 
 Navy shall be filled." 
 
 The act of May 31, 1872 (17 Stat., 192), pro- 
 vided that "there shall be three professors of 
 mathematics who shall have the relative rank 
 of captain; four that of commander; and five 
 that of lieutenant commander or lieutenant." 
 
 The act of 1848, with reference to the number 
 of professors of mathematics, is embodied in 
 section 1399 Re-\dsed Statutes; the act of 1864, 
 concerning additional professors for duty at the 
 Naval Academy, is embodied in section 1528, 
 Revised Statutes; and the act of 1872, confer- 
 ring relative rank upon twelve professors of 
 mathematics, was carried into the Revised 
 Statutes as section 1480. 
 
 [The inteqiretation of these sections of the 
 Revised Statutes has been, in practice, that 
 section 1399 limits the total number of professors 
 
 of mathematics to twelve; and that section 1528 
 relates to the assignment to duty of three of 
 these twelve professors of mathematics.] 
 
 The appointment of additional profes- 
 sors of mathematics has been authorized in 
 specific cases as follows: 
 
 By act of April 27, 1904 (33 Stat., 345), the ap- 
 pointment was authorized of a professor of 
 mathematics of the rank of commander, "to be 
 an extra number in the list of professors of 
 mathematics in the Navy." 
 
 By act of June 29, 1906 (34 Stat., 579), the ap- 
 pointment was authorized of "two additional 
 professors of mathematics in the Navy, who 
 shall be extra numbers in said list." 
 
 By act of May 6, 1910 (36 Stat., 352), the ap- 
 pointment was authorized of a particular indi- 
 vidual (Guy K. Calhoun) "as additional pro- 
 fessor of mathematics in the Navy, as an extra 
 niimber." 
 
 By act of March 4, 1913 (37 Stat., 906), the ap- 
 pointment was authorized of two particular 
 individuals (Nathaniel Matson Terry and Wil- 
 liam Woolsey Johnson) as "professors in the 
 corps of professors of mathematics in the Navy 
 with the rank of lieutenant as extra numbers 
 not in the line of promotion," and it was further 
 provided that in these cases "limitations as to 
 age at the time of appointment shall not apply 
 nor shall age constitute a claim for retirement." 
 ["Limitations as to age" for appointment as 
 professor of mathematics are not fixed by any 
 law, other than that prescribing the age for 
 retirement of officers. See note to section 1444, 
 Re\-ised Statutes.] 
 
 Increases in number of professors of 
 mathematics not favored. — The Na\y De- 
 partment considers it inadvisable to make any 
 further increase in the corps of professors of 
 mathematics. There is no need for such in- 
 crease, either at the Naval Academy or for the 
 service at large. There are already certain addi- 
 tional professors of mathematics, some of whom 
 are on duty at the Naval Academy, and the 
 policy of the department is to reduce to a mini- 
 mum the niunber of instructors at the academy 
 who are not seagoing naval officers. (File 
 26289-11, Dec. 17, 1911. See note to sec. 1401, 
 R. S. and see act of Aug. 29, 1916, noted 
 above.) 
 
 Sec. 1400. [Professors of mathematics ; appointment of. Obsolete.] 
 
 This section provided as follows: 
 
 "Sec 1400. Professors of mathematics shall 
 be appointed and conamissioned by the Presi- 
 dent of the United States, by and with the ad- 
 vice and consent of the Senate." — (3 Aug., 1848, 
 c. 121, 6. 12, V. 9, p. 272.) 
 
 It is rendered obsolete bv the act of August 
 29, 1916 (39 Stat., 577), quoted under section 
 1399, Revised Statutes. 
 
 Appointments as professors of mathe- 
 matics were prohibited unless appointees had 
 passed a physical examination before a board 
 
 503 
 
Sec. 1401. 
 
 PL i\ REVISED STATUTES. 
 
 The Navy. 
 
 of naval Burgcone and a profcesional examina- 
 tion before a board of proieesors of mathematics 
 in the Navy, and received a favorable report 
 from eaid boarde. (Act Jan. 20, 1881, 21 Stat., 
 317. See 17 Op. Atty. Gen., 103, noted under 
 sec. 1101, R. S.) 
 
 See note to section 1528, Revised 
 Statutes, concerning civilian professors at the 
 iS'aval Academy. 
 
 Civilian professors not entitled to prefer- 
 ence in appointment. — Section 1528, Revised 
 Statutes, does not entitle civiUan professors of 
 English, Spanish, and drawing at the Naval 
 Academy to be promoted as a matter of right to 
 the dorps of professors of mathematics, for 
 assignment to these subjects. The contention 
 that the appointing power is thus restricted in 
 ita selection to the civilian professors serving at 
 the academy is without support in the law 
 or the practice of the Navy Department ex- 
 tending through a long period of years. Ac- 
 cordingly, held thait a vacancy existing in the 
 regular corps of professors of mathematics in the 
 Navy may be filled by the appointment of any 
 candidate possessing the necessary qualifica- 
 tions, and that no person can claim that he is 
 entitled to be appointed thereto as a matter of 
 law. (File 26289-11, Dec. 17, 1911.) 
 
 The provisions of section 1528, Revised 
 Statutes, concerning the assignment of three 
 professors of mathematics to special duty, re- 
 lates to the performance of duty by such pro- 
 fessors after appointment, and does not pur- 
 port to restrict the appointing power in the 
 matter of filling vacancies. (File 26289-11, 
 Dec. 17, 1911.) 
 
 Candidate must qualify physically for 
 general duty. — A candidate for appointment 
 
 as professor of mathematics to fill a vacancy 
 in said corps was found by the board of medical 
 examiners "physically qualified to perform all 
 his duties as professor of mathematics, U. S. 
 Navy, for duty in coimection with instruction 
 in drawing at the Naval Academy, AnnapolLs, 
 Md." Held, that such a qualified finding is 
 erroneous and irregular. Should the candidate 
 be appointed he W(mld be commissioned as 
 an officer of the Navy and be subject to all the 
 laws and regulaticms governing commissioned 
 officers, including the benefit of the retirement 
 laws and the provisions of section 1401, Re- 
 vised Statutes, relating to the duties to which 
 professors of mathematics may be assigned. 
 The duty to be assigned this particular indi- 
 vidual, should he be commissioned, is not a 
 question which the board of medical examiners 
 is authorized to consider in connection with 
 his physical qualifications for appointment. 
 The finding of the board in this case, if ap- 
 proved, might be construed as a restriction 
 upon the department in exercising its discre- 
 tion in the matter of assignment to duty of the 
 candidate after his appointment and commis- 
 sioning as a professor of mathematics of the 
 Navy. Such a condition of affairs would oper- 
 ate as a dangerous precedent in making the 
 assignment to duty of officers of the corps of 
 professors of mathematics permanent, would 
 have the practical effect of reducing the num- 
 ber of officers of that corps who would be avail- 
 able for the duty contemplated by law and by 
 regulations, and would be in contravention of 
 the existing laws and regulations. (File 26289- 
 13:2, Aug. 3 and July 28, 1913.) 
 
 Sec. 1401. [Professors of mathematics; duties of.] Professors of mathe- 
 matics shall perform such duties as may be assigned them by order of the Secre- 
 tary of the Navy, at the Naval Academy, the Naval Observatory, and on 
 board ships of war, in instructing the midshipmen of the Navy, or otherwise. — 
 (3 Aug., 1848, c. 121, s. 12, v. 9, p. 272.) 
 
 Nautical Almanac: Secretary of the Navy may 
 place the supervision of the Nautical 
 Almanac in charge of any officer or pro- 
 fessor of mathematics in the Navy who is 
 competent for that service. (Sec. 436, 
 R. S.) 
 Naval Academy: Three professors of mathe- 
 matics shall be assigned to duty at the 
 Naval Academy, one as professor of ethics 
 and English studies, one as professor of the 
 Spanish language, and one as professor of 
 drawing. (Sec. 1528, R. S.) 
 Assignment to duty governed by tliis 
 section. — \Miile the law provides that "three 
 professors of mathematics shall be assigned to 
 duty at the Naval Academy, one as professor of 
 ethics and English studies, one as professor of 
 the Spanish language, and one as professor of 
 drawing" (sec. 1528, R.S.), it is also provided by 
 another section of the Revised Stftutes (sec. 
 1401) that "professors of mathematics shall per- 
 form such duties as may be assigned them by 
 order of the Secretary of the Navy, at the Naval 
 Academy, the Naval Observatory, and on board 
 
 ships of war, in instructing the midshipmen of 
 the Navy, or otherwise." Under the contempo- 
 raneous and long continued construction of the 
 Navy Department, the former provision has been 
 treated as advisory and not mandatory. (File 
 26289-11, Dec. 17, 1911; see also note to sec. 
 1400, R. S.; and see notes to Constitution, Art. 
 I, sec. 8, clause 14, under "I. General powers of 
 Congress and President," and Art. II, sec. 2, 
 clause 1, under "I. Powers of Commander in 
 Chief." 
 
 "Professors of mathematics" a mis- 
 nomer; duties not necessarily mathe- 
 matical. — The heads of the departments of 
 ethics and English studies, of Spanish and 
 other modern languages, and of d rawing, at the 
 Naval Academy, should, although the title is 
 a misnomer, be commissioned as "professors of 
 mathematics" (sec. 1528, R. S.), after passing 
 the examinations required by the act of Janu- 
 ary 20, 1881 (21 Stat., 317). The purpose of 
 section 1528, that persons known to the law and 
 the naval register as "professors of mathe- 
 matics" should be engaged in teaching these 
 
 504 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1402. 
 
 other branches of learning, is too obvious for 
 construction. That the name did not indicate 
 the sole duty of the office is further apparent 
 from the express declaration of the act of 
 August 3, 1848, section 12 (now sees. 1399- 
 1401, R. S.), "that the number of professors of 
 mathematics in the Navy shall not exceed 
 twelve ; that they shall be appointed and com- 
 missioned by the President of the United States 
 by and with the advice and consent of the 
 Senate, and shall perform such duties as may he 
 assigned them by order of the Secretary of the 
 Navy at the naval school, the observatory, and 
 on board ships of war, or otherwise.'" Section 
 1528, ReWsed Statutes, shows that, certainly as 
 to three of these professors, the duties to be 
 assigned them were not to be mathematical in 
 their nature. (17 Op. Atty. Gen., 103.) 
 
 Policy of the Navy Department. — In 
 practice the policy of the Navy Department 
 has been to secure seagoing officers as instruc- 
 tors at the Naval Academy, and to reduce to a 
 minimum the number of instructors at the 
 
 Academy who are not seagoing naval officers; 
 and for this reason it has been considered inad- 
 visable to make any further increase in the 
 corps of professors of mathematics. (File 
 26289-11, Dec. 17, 1911.) [But see provision 
 in naval appropriation actfe, under "Naval 
 Academy," that "no part of any sum in this 
 act appropriated shall be expended in the pay 
 or allowances of any commissioned officer of 
 the Navy detailed for duty as an instructor at 
 the United States Naval Academy to perform 
 duties which were performed by civilian in- 
 structors on January first, nineteen hundred 
 and thirteen." This was contained in the 
 naval appropriation acts of March 4, 1913 (37 
 Stat., 906), June 30, 1914 (38 Stat., 408), March 
 3, 1915 (38 Stat., 947), August 29, 1916 (39 
 Stat., 607), and March 4. 1917 (39 Stat.. 1187). 
 It was omitted in the naval appropriation act 
 of July 1, 1918 (40 Stat., 733).] 
 
 See act of August 29, 1916, noted under section 
 1399, Revised Statutes. 
 
 Sec. 1402. [Construction Corps; number and appointment of naval con- 
 structors.] The President, by and with the advice and consent of the Senate, 
 may appomt naval constructors, who shall have rank and pay as officers of 
 the Navy.— (25 July, 1866, c. 231, s. 7, v. 14, p. 223. 3 Mar., 1871, c. 117, 
 s. 9, V. 16, p. 536.) 
 
 Appointments as naval constructors are to be 
 made by promotion of assistant naval con- 
 structors who have had not less than eight 
 nor more than fourteen years' ser\ice as 
 assistant naval constructors. (Act Mar. 3, 
 1899, sec. 10, 30 Stat., 1006.) 
 
 Appointments as naval constructors are to be 
 made ' 'from the highest members " in the 
 Construction Corps, "according to sen- 
 iority." (Sec. 1480, R. S.. as amended by 
 act Feb. 27, 1877, 19 Stat.,' 244.) 
 
 Number of naval constructors and assistant 
 naval constructors on the active list was 
 fixed at 40 by act March 3, 1899, section 
 10 (30 Stat., 1006). This number was 
 increased by act July 1, 1902 (32 Stat., 
 683), which authorized the appointment 
 of 6 additional assistant naval constructors. 
 A further increase was made by act March 
 3, 1903 (32 Stat., 1197), which authorized 
 the appointment of 29 "additional naval 
 constructors and assistant naval con- 
 structors, in all seventv-five." By act 
 March 3, 1915 (38 Stat., 945), the transfer 
 was authorized to the grade of assistant 
 naval constructor of not more than 24 
 line officers of the Navy, making a total 
 of 99 naval constructors and assistant 
 naval constructors authorized by law. 
 (See note to sec. 1403, R. S.) Bv act of 
 August 29, 1916 (39 Stat., 576, 577), it 
 was provided that "the total authorized 
 number of commissioned officers of the 
 active list of the following staff corps, 
 exclusive of commissioned warrant officers, 
 shall be based on percentages of the total 
 number of commissioned officers of the 
 active list of the line of the Navy as 
 follows: * * * Construction Corps, five 
 
 per centum. * * * The total number 
 of commissioned officers of the active list of 
 the following mentioned staff corps at any 
 one time, exclusive of cornmissioned 
 warrant officers, shall be distributed in the 
 various grades of the respective corps as 
 follows: * * * Construction Corps : One- 
 half naval constructors mth the rank of 
 rear admiral to eight and one-half naval 
 constructors with the rank of captain, to 
 fourteen naval constructors with the rank 
 of commander, to seventy-seven naval 
 constructors and assistant naval construc- 
 tors with rank below commander. * * * 
 When there is an odd number of officers in 
 the grade or rank of rear admiral in the line, 
 or in each corps, the lower di\dsion thereof 
 shall include the excess in number, except 
 where there is but one. WTierever a final 
 fraction occurs in computing the authorized 
 number of any corps, grade, or rank in the 
 naval 8er\dce", the nearest whole number 
 shall be regarded as the authorized number: 
 Provided, That at least one officer shall be 
 allowed in each grade or rank. For the 
 purpose of determining the authorized 
 number of officers in any grade or rank of 
 the line or of the staff corps, there shall be 
 excluded from consideration those officers 
 carried by law as additional numbers, in- 
 cluding staff officers heretofore permanently 
 commissioned with the rank of rear admiral, 
 and nothing contained herein shall be held 
 to reduce below that heretofore authorized 
 by law the number of officers in any grade 
 or rank in the staff corps. ' ' The temporary 
 appointment of additional officers during 
 the period of the existing war was author- 
 ized by the act of May 22, 1917, section 4 
 
 605 
 
Sec. 1403. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 (40 Stat., 85), as amended by act of July 
 1, 1918 (40 Stat., 715), which also author- 
 izetl temporary appointments and promo- 
 tions to lill, during the period of the war, 
 the deficiency existing prior to May 22, 
 1917, in the total number of commissioned 
 officers authorized by the act of August 
 29, 1916. By act of June 4, 1920 (41 Stat., 
 834), it was provided ''that the number of 
 commissioned oflicers of the line, perma- 
 nent, temporary, and reserve on active 
 duty shall not exceed 4 per centum of the 
 total authorized enlisted strength of the 
 Regular Navy, and the number of staff 
 officers on active duty of whatever kind 
 shall be in the same j^roportions as author- 
 ized by existing law. * * * That noth- 
 ing herein shall l^e construed as reducing 
 the permanent commissioned * * * 
 strength of the Regular Navy as authorized 
 by existing law." 
 
 Pay of all officers of the Navy is prescribed by 
 act of May 13, 1908, and amendments, noted 
 under section 1556, Revised Statutes. 
 
 Rank of naval constructors is fixed by act of 
 March 3, 1899, section 10, as amended by 
 act of August 29, 1916 (39 Stat., 577). Ad- 
 vancement in rank of staff officers, up to 
 and including the rank of lieutenant com- 
 mander, is regulated by act of August 29, 
 1916 (39 Stat., 576). Advancement to the 
 ranks of commander, captain, and rear 
 admiral in the Staff Corps of the Navy are 
 to be made by selection upon recommen- 
 dation of a board of officers of the corps 
 concerned. (Act of July 1, 1918, 40 Stat., 
 718.) 
 
 "Vacancies in the Construction Corps shall be 
 filled in the manner now prescribed by 
 law, at such annual rate as the Secretary 
 of the Navy may prescribe." (Act Aug. 
 29, 1916, 39 Stat., 577.) 
 
 Number not to be increased by implica- 
 tion. — It will be observed from the statutes 
 that in legislating with respect to naval con- 
 structors Congress has been very careful to 
 limit their number. The number thus fixed 
 by law should not be increased without legisla- 
 tion sufficiently explicit to clearly justify it. 
 WTien Congress has seen fit to make increases 
 in the numbers of officers in the Navy, either 
 
 generally or in particular corps or grades, it 
 as generally used specific and apt language 
 to accomplish that object. Accordingly, held 
 that where, in accordance with law, a naval 
 constructor with the rank of captain, who had 
 served as Chief of the Bureau of Construction 
 and Repair, with the rank of rear admiral and 
 title of Chief Constructor while so serving, 
 was given a permanent commission with the 
 title of Chief Constructor and the rank of rear 
 admiral, and continued on the active list as 
 such, although no longer Chief of the Bureau 
 of Construction and Repair, the sole purpose 
 of the law authorizing such action was to 
 make permanent the rank, title, and emolu- 
 ments which this officer had theretofore tem- 
 porarily held as chief of bureau, and that 
 Congress did not intend thereby to increase 
 the number of officers in the Construction 
 Corps of the Navy; and therefore the com- 
 missioning of this ofiicer as a Chief Constructor 
 in the Navy with the rank of rear admiral did 
 not create a new grade in the Navy, nor did 
 the same fact create a vacancy in the grade of 
 naval constructor with the rank of captain or 
 in the total number of naval constructors and 
 assistant naval constructors as provided by 
 law. (28 Op. Atty. Gen., 526. The act of 
 June 24, 1910, 36 Stat., 607, 608, providing 
 for the issuance of permanent commissions to 
 officers, under the circumstances in this case, 
 as Chief Constructor with the rank of rear 
 admiral, was repealed by act August 22, 1912, 37 
 Stat., 328. See note to sec. 421, R. S.) 
 
 Sec. 1403. [Construction Corps; appointment of assistant naval constructors.] 
 Cadet engineers who are graduated with credit in the scientific and mechanical 
 class of the Naval Academy may, upon the recommendation of the academic 
 board, be immediately appointed as assistant naval constructors. — (4 July, 
 1864, c. 252, s. 2, v. 13, p. 393.) 
 
 Amendment to this section was made by act of 
 August 5, 1882 (22 Stat., 285). which pro- 
 vided that thereafter no appointments of 
 cadet-engineers shoidd be made to the 
 Naval Academy, but that all undergradu- 
 ates at the Academy should be styled 
 "naval cadets." This title of naval cadet 
 was changed to "midshipman" bv act of 
 July 1, 1902 (32 Stat., 686). 
 
 Authority is given the Secretary of the Navy by 
 section 1522, Re\ised Statutes, to make 
 pro\ision by regulations for educating at 
 the Naval Academy as naval constructors 
 such persons as may show a pecuhar apti- 
 tude therefor, and to afford such persons 
 all proper facilities for such a "scientific 
 mechanical education " as will fit them for 
 said profession. 
 
 Appointments to the grade of assistant naval 
 constructor may be made by transfer from 
 
 officers of the line of the Na\y who have 
 had not less than three years' service in the 
 grade of ensign and have taken, or are 
 taking, satisfactorily, a post-graduate course 
 in naval architecture under orders from the 
 Secretary of the Naw; the total increase 
 in the nmnber of naval constructors and 
 assistant naval constructors by reason 
 of such transfers not to exceed 24, of which 
 not more than 5 may be made in any 
 one calendar vear. (Act Mar. 3, 1915, 38 
 Stat., 945.) By act of August 29, 1916 (39 
 Stat., 577V it was pro\'ided that "vacancies 
 in the Construction Corps shall be filled in 
 the manner now prescribed by law. at such 
 annual rate as the Secretary of the Navy^ 
 may prescribe," and "that hereafter 
 ensigns of not less than one year's service 
 as such shall be eligible for transfer to the 
 Construction Corps." 
 
 506 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1404. 
 
 ByactofJuly9,1913(38Stat.,103),itisprovided 
 that "midshipmen on graduation * * * 
 may be assigned by the Secretary of the 
 Navy to fill vacancies in the lowest com- 
 missioned grades of the * * * staff 
 corps of the Na^'^^" 
 
 Number of naval constructors and assistant 
 naval constructors: See note to section 
 1402, Revised Statutes. 
 
 Rank of assistant naval constructors is fixed by 
 act of March 8, 1899, section 10, as amended 
 by act of August 29, 1916 (39 Stat., 577). 
 
 Sec. 1404. [Construction Corps; duties of. Superseded.] 
 
 I 
 
 This section provided as follows: 
 
 "Sec. 1404. Naval constructors may be re- 
 quired to perform duty at any navy yard or 
 other station." — (3 Mar., 1845, c". 77, s. 2, v. 5, p. 
 794.) 
 
 It was superseded by the following pro- 
 vision in the act of June 30, 1914 (38 Stat. , 394), 
 repeated in act of March 3, 1915 (38 Stat., 930): 
 << * * * officers of the Construction Corps 
 shall be eligible for any shore duty compatible 
 Avith their rank and grade to which the Secre- 
 tary of the Navy may assign them." 
 
 "Line oflBLcers may be detailed for duty 
 under staff oflB.cers in the manufacturing and 
 repair departments of the navy yards and naval 
 stations, and all laws or parts of laws in con- 
 flict herewith are herebv repealed . ' ' (Act June 
 24, 1910, 36 Stat., 614.) 
 
 Sea duty. — "Naval constructors and assist- 
 ant naval constructors shall when practicable be 
 detailed for service afloat in such fleets or on 
 such repair ships as the department may desig- 
 nate." (Art. R-3122, Navy Regs., 1913.) 
 
 General nature of duties. — Naval con- 
 structors are appointed by the President and 
 have rank and pay as officers of the Na\'^', and 
 may be required to perform duty at any navy 
 yard or other station. Their duties in general 
 are to haA^e general superintendence and charge 
 of the construction and repair of all ships, and 
 to cause thorough examination at least once a 
 month of all ships in reserve to see that they are 
 carefullv guarded against deterioration or de- 
 cay. (Stacker v. U. S., 39 Ct. Cls., 300.) 
 
 Performance of duty under War Depart- 
 ment. — The statute creating the office of naval 
 constructor is broad enough to include the re- 
 quirement of service on vessels in the employ- 
 ment of the War Department, and gives the 
 Government the right to demand such services 
 when required, and at such times and places 
 as may seem expedient; and this right is not 
 affected by the omission to include such duty 
 by specific mention in the Navy Regulations. 
 (Stocker v. U. S., 39 Ct. Cls., 300.) 
 
 Where a naval constructor is detailed by the 
 Secretary of the Navy to inspect a vessel, the 
 fact that she is chartered by the War Depart- 
 ment as an Armj^ transport does not burden the 
 officer with services not incident to his office. 
 The duties required of him were of the general 
 nature performed by him in the Navy. Addi- 
 tional compensation for such inspection service 
 is prohibited bv Revised Statutes, section 1765. 
 (Stocker i;. U. S., 39 Ct. Cls., 300.) 
 
 The Army and Navy constitute the military 
 force of the Government, and their duties are 
 to cooperate when necessity or emergency de- 
 mands it. For this purpose they are a unit 
 under the authority of one Commander in Chief. 
 The Army has no officer corresponding to a 
 naval constructor, and when it becomes neces- 
 sary to use ships at sea to transport the troops of 
 
 the Army it becomes and is the duty of the 
 Navy, with all its equipment and forces, when 
 properly directed, to give necessary assistance 
 and protection to such transportation. (Stocker 
 V. U. S., 39 Ct. Cls., 300.) 
 
 See also section 1437, Revised Statutes, pro- 
 viding that "the President may detail, tempo- 
 rarily, three competent naval officers for the 
 service of the War Department in the inspec- 
 tion of transport vessels, and for such other 
 services as may be designated by the Secretary 
 of War." (This statute was not cited by the 
 Court of Claims in the case above noted . ) 
 
 Military duties are not compatible with 
 grades of the Construction Corps. — Duties 
 of a purely military nature, such as contem- 
 plated by Article R-1003, paragraphs 1 and 4, 
 Na\'y Regulations, 1913 (military command and 
 senior officer present), are not compatible with 
 thegradesof the Construction Corps, and are not, 
 therefore, within the scope of the clause above- 
 quoted from the naval appropriation act of 
 March 3, 1915. (File 26806-140, June 9, 1916.) 
 
 The law does not say that officers of the Con- 
 struction Corps shall be eligible for any shore 
 duty which they may individually be compe- 
 tent to perform; but for any shore duty compati- 
 ble with their rank and grade. It is not the 
 competency of the particular officer to perform 
 certain duties, but the compatibility of those 
 duties with the grade of naval constructor that 
 governs. Military duties, such as are required 
 of the commandant of a navy yard and his aid 
 or executive, are not compatible with the grade 
 of naval constructor, even though there may be 
 found in that grade some officer who by special 
 training or experience might be individually 
 competent to perform such duties. (File 5038- 
 20:1, Jan. 18, 1915.) 
 
 Construction officer can not be comman- 
 dant of navy yard. — Section 1542, Revised 
 Statutes, provides that the commandants of the 
 several navy yards are to be officers of the line; 
 that is, they are to be "officers not below the 
 grade of commander," which grade exists only 
 in the line of the Navy. In conformity with 
 this law, line officers have from time imme- 
 morial been selected for duty as commandants 
 of navy yards. The duties of commandant 
 have thus become part of the duties of the line. 
 The Navy Regulations provide that, in the 
 absence of the commandant, "the line officer 
 next in rank," if not restricted to special duty, 
 shall become the acting commandant. The 
 words in the act of June 30, 1914, "compatible 
 with their rank and grade," which Congress 
 wrote into the law evidently for some purpose, 
 would be rendered meaningless if naval con- 
 structors could nevertheless be assigned to duty 
 which, from its very nature, as well as in ac- 
 cordance with military usage and specific pro- 
 visions of law and regulations, belongs exclu- 
 sively to other grades. Any argument which 
 
 54641°— 22- 
 
 -33 
 
 507 
 
Sec. 1404. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 might be advanced to show that it is compatible 
 with the grade of naval constructor to perform 
 the duties of commandant, might be urged 
 with equal force to show that it is compatiDle 
 with said grade to perform the duties of the pay 
 corps, medical corps, professors of mathematics, 
 chaplains, or civil engineers. The duties per- 
 formed by the different grades in the Navy are 
 well understood, are defined by regulations, 
 orders, and customs of the service, as well as by 
 law in some cases. It must be presumed that 
 Congress in enacting the act of 1914 legislated 
 with reference to the duties of the various 
 grades as they then existed, and if it had in- 
 tended that naval constructors could be as- 
 signed to duties belonging to other grades, it 
 would have omitted the restriction expressed 
 by the phrase "compatible with their rank and 
 grade." These words were put into the law as 
 a limitation upon the Secretary's authority; 
 they must be given effect; and they exclude 
 assignment of naval constructors to duty in 
 command of a navy yard. (File 5038-20:1, 
 Jan. 18, 191.5.) 
 
 Construction oflB.cer can not be aid or 
 executive of comniandant or succeed to 
 command. — Section 1469, Revised Statutes, 
 which limits details as aid or executive of com- 
 mandants at naval stations to officers of the 
 line, is not repealed or modified by the act of 
 June 30, 1914, which authorizes the assignment 
 of construction officers to duties "compatible 
 with their rank and grade." (File 5038-20:1, 
 Jan. 18, 1915.) 
 
 A naval constructor can not under the law be 
 assigned to duty as aid or executive to the com- 
 mandant of a naval station, nor succeed to 
 command of a naval station in the absence of 
 the commandant. (File 5038-20:1, Jan. 18, 
 1915.) 
 
 The duties of aid to a commandant may be 
 compatible with the rank of a construction 
 officer, but are not compatible with his grade. 
 All commissioned officers of the Navy, both of 
 the line and staff, have rank, and therefore, if 
 rank only were considered, there would be 
 nothing incompatible in ordering a naval con- 
 structor to perform any duty which might be 
 assigned to any officer of corresponding rank in 
 the line or in any staff corps. Grade and not 
 rank is the distinguishing characteristic by 
 which the duties of commissioned officers are 
 known and defined. A naval constructor may 
 have the rank of commander; so also may a 
 medical officer in command of a naval hospital. 
 Therefore it would not be incompatible with 
 the rank of a naval constructor to command a 
 naval hospital, but certainly it would be in- 
 compatible with his grade to perform such duty. 
 Similarly with reference to officers of the line; 
 regardless of rank, the military duties per- 
 formed by such officers are as incompatible 
 with the grade of naval constructor as are the 
 duties of a medical officer in command of a 
 naval hospital. A naval constructor assigned 
 to duty as aid or executive to the commandant 
 would, in so acting, perform duties of a purely 
 military character, duties which have always 
 been limited to the line, duties of so important 
 a character that the law itself says they shall 
 be performed not only by "a line officer," but 
 "when not impracticable" by the line officer 
 
 "next in rank" to the commandant; duties 
 which are wholly foreign to the grade of naval 
 constructor, which are not embraced in a naval 
 constructor's special training and experience, 
 and which are as incompatible with the grade 
 of naval constructor as are the duties of that 
 grade incompatible with the grade of a line 
 officer. (File 5038-20:1, Jan. 18, 1915. As to 
 distinction between "rank" and "grade" see 
 generally, notes to sees. 1362 and 1457, R. S.) 
 
 Construction oflBLcer can not be assigned 
 duties belonging to other grades, either 
 in line or staflf. — Staff officers presumably 
 know something about the duties performed by 
 line officers, and line officers know something 
 about the duties performed by staff officers; 
 but these officers are all specially trained in 
 the duties pertaining to their respective grades, 
 and these are the duties which they are sup- 
 posed to be fitted to perform. A line officer 
 might individually know something about the 
 treatment prescribeel by medical officers for cer- 
 tain ailments, but the law does not contemplate 
 that he should be intrusted with the respon- 
 sibility of treating such ailments. Similarly the 
 law does not contemplate that a medical officer 
 or naval constructor shoukl be intrusted with 
 the responsibility of discharging the duties for 
 which line officers have been apecially trained 
 and equipped. Congress, in deliberately and 
 specifically limiting the duties of construction 
 officers to such as are "compatible' ' with their 
 "grade" diel not intend that they should be 
 assigneel to duties belonging to other grades, 
 either in the line or staff. (File 5038-20:1, 
 Jan. 18, 1915.) 
 
 Construction officers may exercise com- 
 mand in the line or other staff corps inci- 
 dent to performance of their duties. — The 
 act of June 30, 1914, limits the detail of officers 
 of the construction corps in accorelance ^vith 
 its provisions, to "shore duty" and to such 
 shore duty as is "compatible with their rank 
 and grade." The intention of this law was 
 evidently to enlarge the power of the Secre- 
 tary of the Navy in assigning construction 
 officers to duty, but at the same time to pro- 
 hibit their assignment to duty of a wholly 
 different character from that which they had 
 customarily performed. The only effect of 
 the statute was to remove any disability which 
 had previously stood in the way of assigning 
 construction officers to duties pertaining to 
 their grade. This disability was found in the 
 law prohibiting staff officers from exercising 
 command in the line or in other staff corps 
 [sec. 1488, R. S., as amended bv act Mar. 3, 
 1899, sec. 7, 30 Stat., 1006]. A clause in the 
 naval appropriation act of June 24, 1910 (36 
 Stat., 614), partially removed this disability, 
 but was restricted in its scope, limiting the 
 detail of line officers under staff officers to 
 the manufacturing and repair departments of 
 navy yards and naval stations. It had the 
 same effect as if it had specifically stated 
 that line officers may not be detailed for duty 
 under staff officers except in the manufactur- 
 ing and rt^pair elepartmeuts of the navy yards 
 and naval stations. The act of 1914 is broader, 
 and construction officers may, by its authority, 
 be detailed to any shore duty "compatible 
 with their rank aiid grade," notwithstanding 
 
 508 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1405. 
 
 that they are thereby placed in command of cers to duty properly embraced by their grade, 
 
 line officers or officers of other staff corps. where the performance of euch duty might 
 
 (File 5038-20:1, Jan. 18, 1915.) involve the exercise of command in the Une 
 
 The only effect of said act of June 30, 1914, or other staff corps. (File 5038-20:1, Jan. 18, 
 
 is to remove the obstacle which theretofore 1915.) 
 prevented the assignment of construction offi- 
 
 Sec. 1405. [ Warrant officers; number and appointment of.] The President 
 may appoint for the vessels in actual service as many boatswains, gunners, 
 sailmakers, and carpenters as may, in bis opinion, be necessary and proper. — 
 (21 Apr., 1806, c. 35, s. 3, v. 2, p. 390. 4 Aug., 1842, c. 121, s. 1, v. 5, p. 500. 
 3 Mar., 1847, c. 48, s. 1, v. 9, p. 172.) 
 
 Acting appointments as warrant officers. See 
 
 note to section 1410, Revised Statutes. 
 Appointments from enlisted men provided for 
 by sections 1407 and 1417, Revised Statutes. 
 Duties of warrant officers. See sections 1416 
 
 and 1438, Revised Statutes. 
 Pay of warrant officers. See section 1556, 
 
 Revised Statutes. 
 Rank of warrant officers. See section 1491, 
 
 Revised Statutes. 
 Temporary appointments as warrant officers of 
 the Navy may be made by the Secretary 
 of the Navy. (Act May 22,' 1917, sec. 5, 40 
 Stat., 85, as amended by act July 1, 1918, 
 40 Stat., 716.) 
 
 Sailmakers. — So much of this section as 
 provides for the appointme nt of sailmakers has 
 become obsolete, there being no officer in that 
 grade now in the Navy, and no such appoint- 
 ments having been made since May 4, 1888. 
 (See Annual Navy Registers.) The Navy Reg- 
 ister of 1917 (pp. 158, 159) shows one officer 
 serving in the grade of chief sailmaker. 
 
 (See note below as to the promotion of war- 
 rant officers.) 
 
 "The sailmaker was, as in the British service, 
 to report the condition of the sails to the boat- 
 swain. He has at the present day ceased, for 
 obvious reasons, to have importance in the 
 Navy." (22 Op. Atty. Gen., 620.) 
 
 Machinists. — The appointment of 100 war- 
 rant machinists was authorized by the Navy 
 personnel act of March 3, 1899, section 14 (30 
 Stat., 1007). The appointment of 50 addi- 
 tional warrant machinists was authorized by 
 act of March 3, 1901 (31 Stat., 1108); and pro- 
 vision for the appointment of as many warrant 
 machinists "as the President may from time 
 to time deem necessary to appoint, not to exceed 
 twenty in any one year," was made by act of 
 April 27, 1904 (33 Stat., 324), repeated in the 
 naval appropriation act for each subsequent 
 year until the act of August 29, 1916 (39 Stat., 
 o75), when the limitation upon the number to 
 be appointed in any one year was omitted. 
 
 The title of ' ' warrant machinist " was changed 
 to " machinist " by actof March3, 1909(35Stat., 
 771). 
 
 Pharmacists. — The appointment by the 
 Secretary of the Navy of 25 pharmacists in the 
 Hospital Corps of the Navy, "with the rank, 
 pay, and privileges of warrant officers, remov- 
 able in the discretion of the Secretary," was 
 authorized by act of June 17, 1898, section 1 (30 
 Stat., 474). By section 4 of the same act (30 
 Stat., 475), it was provided that "all benefits 
 derived from existing laws, or that may here- 
 
 after be allowed by law, to other warrant offi- 
 cers or enlisted men in the Navy shall be 
 allowed in the same manner to the warrant offi- 
 cers or enlisted men in the Hospital Corps of the 
 Navy." 
 
 By act of August 29, 1916 (39 Stat., 572), the 
 President was authorized to appoint "as many 
 pharmacists as may be deemed necessary," 
 who "shall have the same rank, pay, and 
 allowances as are now or may hereafter be 
 allowed other warrant officers." 
 
 Pay clerks. — A grade of warrant officers 
 designated as pay clerks was established by act 
 of March 3, 1915"(38 Stat., 942), appointments 
 thereto being regularly made by promotion 
 from the grade of acting pay clerk; and it was 
 provided "that pay clerks and acting pay clerks 
 shall have the same pay, allowances, and other 
 benefits as are now or may hereafter be allowed 
 other warrant officers and acting warrant offi- 
 cers, respectively." 
 
 The total number of pay clerks was not spe- 
 cifically fixed, but the act above cited provided 
 that the total number of chief pay clerks, pay 
 clerks, and acting pay clerks shall not exceed 
 one for each 250 enlisted men allowed by law 
 in the Navy. 
 
 Clerks to assistant paymasters in the 
 Marine Corps are not warrant oflB.cers. — 
 The provision of the act of March 3, 1915 (38 
 Stat., 942), in regard to warranting pay clerks 
 of the Navy, is not sufficiently broad to include 
 clerks to assistant paymasters in the Marine 
 Corps. The fact that the grades of warrant offi- 
 cers, at the time of the statute's enactment, 
 existed exclusively in the Navy proper, and 
 that there were no warrant officers designated 
 as such by law in the Marine Corps, strongly 
 accentuates the view that the Marine Corps was 
 not in contemplation of Congress when this 
 legislation was enacted. It is clear that Con- 
 gress did not intend its legislation with refer- 
 ence to clerks to pay officers in the Navy to 
 apply to clerks to assistant paymasters in the 
 Marine Corps, but on the contrary intended 
 that the pay, allowances, and other benefits 
 allowed the latter class of clerks should be the 
 same as in the Army. (File 5460-81, May 12, 
 1916. By act July 1, 1918 (40 Stat., 735), the 
 title of clerks for assistant paymasters in the 
 Marine Corps was changed to "pay clerk," 
 and it was provided that pay clerks "shall 
 hereafter receive the same pay, allowances, 
 and other benefits now pro"\dded by law for 
 clerks for assistant paymasters.") 
 
 The warrant grades of marine gunner 
 and quartermaster clerk were established 
 
 509 
 
Sec. 1406. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 by the act of August 29, 1916 (39 Stat., 611), 
 which provided that officers in said grades 
 "ehall nave the rank and receive the pay, 
 allowances, and pri\ilege8 of retirement of 
 Avarrant «)llicors in the Na\'y." 
 
 Mates are not warrant officers. — See 
 note to section 1408, Revised Statutes. 
 
 Promotion of warrant officers. — Boat- 
 swains, gunners, carpenters, and sailniakers 
 were, after ten years from date of warrant, to 
 be commissioned as chief boatswains, chief 
 gunners, chief carpenters, and chief sail- 
 makers, to rank with but after ensign, by act of 
 March 3, 1899, section 12 (30 Stat., 1007). 
 This provision was amended by act of April 27, 
 1904 (33 Stat., 346), providing for the promo- 
 tion of the officers mentioned after six years 
 from date of warrant, instead of ten years, as 
 theretofore. 
 
 Machinists are, after six years from dateof 
 warrant, to be commissioned as chief machin- 
 ists. (Act Mar. 3, 1909, 35 Stat., 771.) 
 
 Pharmacists were, after six years from date 
 of warrant, to be commissioned as chief phar- 
 macists, by a provision in the act of August 
 22, 1912 (37 Stat., 345). Under that pro- 
 vision it was held that the total number of 
 pharmacists and chief pharmacists was limited 
 to 25, that being the maximum number fixed 
 by previous law for the grade of pharmacist, 
 and the provision for the promotion of phar- 
 macists not being intended to increase the 
 total number of officers in the Navy. (File 
 27213-3, May 6, 1913; 27218-4, Dec. 5, 1913.) 
 Prior to the act of August 22, 1912, the com- 
 missioning of pharmacists as chief pharmacists 
 was not authorized, as sections one and four 
 of the act approved June 17, 1898 (noted 
 above under "Pharmacists"), did not have 
 that effect. (File 27213, Apr. 24, 1909.) By 
 act of August 29, 1916 (39 Stat., 572, 573), it 
 was provided that "pharmacists shall, after 
 six years from the date of warrant, be com- 
 missioned chief pharmacists after passing satis- 
 factorily Buch examinations as the Secretary 
 of the Navy may prescribe, and shall, when 
 so commissioned, have the same rank, pay, 
 and allowances as now or may hereafter be 
 allowed other commissioned warrant officers"; 
 and the restriction upon the number of phar- 
 macists and chief pharmacists was removed. 
 
 Pay clerks are, _ after six years' service as 
 such, to be commissioned as chief pay clerks. 
 (Act Mar. 3, 1915, 38 Stat., 942.) 
 
 By act of May 22, 1917 (40 Stat., 84), as 
 amended bjr act of July 1, 1918 (40 Stat., 716), 
 temporarily increasing the number of officers and 
 enlisted men of the Navy and Marine Corps, it 
 was provided (sec. 5) that "the additional 
 temporary officers authorized in the various 
 grades and ranks of the Navy and Marine Corps 
 in accordance with the next preceding section 
 may be temporarily appointed to serve in the 
 grades or ranks to whicn appointed or promoted 
 * * * by temporary appointment of * * * 
 warrant officers * * * of the Navy, and 
 warrant officers * * * of the Marine Corps." 
 
 By act of Jime 4, 1920 (41 Stat., 834, 835), 
 provision was made for the issuance of perma- 
 nent commissions and warrants to officers who 
 served temporarily in commissioned and war- 
 
 rant grades during the World War. 
 
 Commissioned warrant officers on the actiA-e 
 list Avith creditable records shall, after six 
 years from date of commission, receive the pay 
 and allowances of a lieutenant (junior grade); 
 and after twelve years from date of commission 
 the pay and allowances of a lieutenant. (Act 
 Aug. 29, 1916, 39 Stat., 578.) 
 
 Ensigfns and assistant paymasters ap- 
 pointed from warrant officers. — The ap- 
 pointment annually of not more than six 
 ensigns from among the boatswains, gunners, 
 or rnachinists, having not less than six years' 
 service as warrant officers, was authorized by 
 act of March 3, 1901 (31 Stat., 1129). This pro- 
 vision was amended by act of March 3, 1903 
 (32 Stat., 1197), providing that 12 ensigns may 
 be so appointed annually instead of 6. It 
 was further amended by act of April 27, 1904 
 (33 Stat., 346), providing that such appoint- 
 ments may be made from among boatswains, 
 gunners, and machinists having four years' 
 service as warrant officers, instead of six years 
 as previously required. It was again amended 
 by act of March 3, 1909 (35 Stat., 771), which 
 provided that chief boatswains, chief gunners, 
 and chief machinists should be eligible for 
 appointment as ensigns under ttie same restric- 
 tions as imposed by law upon the appointment 
 of boatswains, gunners, and machinists to that 
 grade. 
 
 The law does not require that warrant officers 
 who qualify for ensign be commissioned as of 
 July 30 of each year. By act of March 3, 1901 
 (31 Stat., 1129), it was provided that ' 'whenever 
 in view of the vacancies in the grade of ensign 
 on July tliirtieth of any year unfilled by 
 graduates of the Naval Academy, the Secretary 
 of the Navy shall so recommend, the President 
 may appoint to that grade, as of July thirtieth, 
 from among the boatswains, gunners, or warrant 
 machinists, not exceeding six in any one 
 calendar year." The same act contained re- 
 strictions concerning the qualifications of 
 warrant officers eligible for such appointment 
 as ensign. At the time this law was enacted the 
 grades of lieutenant (junior grade) and ensign 
 were limited by law. However, by act of 
 March 3, 1903 (32 Stat., 1197), the appointment 
 was authorized of such total numbers of lieuten- 
 ants (jiinior grade) and ensigns as may be quali- 
 fied for said grades under existing law, there- 
 by making said grades unlimited in number. 
 In the same act it was provided that "hereafter, 
 in each calendar year there may, under the 
 restrictions imposed by existing law, be ap- 
 pointed from the boatswains, gunners, and 
 warrant machinists of the Navy, twelve en- 
 signs." This act amended the prior law in so 
 far as same authorized appointments of ensigns 
 from warrant officers to be made only in the 
 case of vacancies existing in the grade of 
 ensign on July 30 of each year and required 
 that such appointments be made as of July 30. 
 Accordingly, since the act of 1903, it has not 
 been required that the appointments of en- 
 signs from warrant officers be made as of July 
 30, but same were authorized to be made at any 
 time "in each calendar year," subject to the 
 limitation upon the number to be so appointed. 
 (File 28687-i, Sept. 16, 1916.) 
 
 The act of April 27, 1904 (33 Stat., 346), 
 provided "that subject to the restrictions 
 
 610 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1405. 
 
 imposed by existing law, boatswains, gunners, 
 and warrant machinists shall be eligible for 
 appointment to the grade of ensign after four 
 years' service as warrant officers." Under the 
 act of August 29, 1916 (39 Stat, 577) [which 
 limited the number of officers in the various 
 grades and ranks of the Navy, including the 
 lowest grades of the line, in accordance with 
 computations to be made by the Secretary of 
 the Navy on January 1 and July 1 of each year, 
 and provided that the numbers in each grade 
 and rank resulting from such computations 
 should not be varied between said dates], 
 warrant officers qualifjnng for the grade of 
 ensign should be commissioned in such grade 
 on January 1 or July 1 of each year, and can 
 not be commissioned between said dates except 
 to fill vacancies occurring in the authorized 
 number of ofiicers in the grades of lieutenant 
 (junior grade) and ensign, computed in accord- 
 ance with the act of August 29, 1916. (File 
 28687-4, Sept. 16, 1916.) 
 
 The act of May 22, 1917, section 6 (40 Stat., 
 86), authorizing computations to be made 
 "during the period of the present war," at such 
 times other than January 1 and July 1 as the 
 Secretary of the Navy "may deem nec&ssary," 
 suspends temporarily the restriction contained 
 in the act of August 29, 1916, upon varying the 
 number of officers between specified dates. 
 The result is that additional appointments of 
 commissioned officers in the lowest grades, line 
 and staff, may be made at any time that 
 eligibles become available. Such additional 
 appointments may be made permanently where 
 vacancies exist in the permanent service, and 
 eligibles are available for permanent appoint- 
 ment, or may be made temporarily to fill any 
 existing deficiency therein until eligibles are 
 available for regular appointment in accordance 
 with existing law. (File 28687-22, June 14, 
 1917. By act of July 11, 1919 (41 Stat., 139), 
 permanent provision was made for computa- 
 tions by the Secretary of the Navy at least 
 once each year and at such times as the Secre- 
 tary may direct.) 
 
 Chief pay clerks and pay clerks between the 
 ages of 21 and 35 years are eligible for appoint- 
 ment as assistant paymasters, but shall not 
 have any preference for such appointment 
 except as to this modification of the limitations 
 fixed by section 1379, Revised Statutes, as to 
 the ages of appointees. (Act Mar. 3, 1915, 38 
 Stat., 943.) 
 
 As to temporary appointment of warrant 
 officers to commissioned rank, see act of May 
 22, 1917, as amended by act of July 1, 1918, 
 noted above, under "Promotion of warrant 
 officers." 
 
 Warrant oflB.cers belonging to line and 
 stafif of Navy. — See note to section 1362, 
 Revised Statutes. 
 
 Appointments by President and Secre- 
 tary of the Navy. — See note to Constitution, 
 Article II, section 2, clause 2, under "II. Con- 
 stitutional power of appointment." 
 
 Section 1405 authorizes the President to 
 appoint as many boatswains, gunners, sail- 
 makers, and carpenters as may in his opinion 
 be necessary and proper. The consent of the 
 Senate not having been required by Congress, 
 euch consent is unnecessary, and the President 
 
 may make such appointments without sub- 
 mitting the same to the Senate for confirmation. 
 (22 Op. Atty. Gen., 82; see also 23 Op. Atty. 
 Gen., 136.) 
 
 By act of May 22, 1917, section 5 (40 Stat., 
 85), as amended by act of July 1, 1918 (40 Stat., 
 716), temporary appointments as warrant offi- 
 cers were authorized to be made by the Secre- 
 tary of the Navy. 
 
 Warrant officers not commissioned of- 
 ficers. — Warrant officers designated as boat- 
 swains, gunners, carpenters, and sailmakers are 
 appointed under authority of section 1405, 
 Revised Statutes, and in addition thereto 
 Congress has from time to time authorized the 
 appointment of other warrant officers in the 
 Navy. Such officers have always been re- 
 garded as a separate and distinct class from 
 commissioned officers, whose appointments in 
 the Regular Navy are evidenced by commis- 
 sions signed by the President and under the 
 seal of the United States. Accordingly, held 
 that a warrant officer is not a commissioned 
 officer within the meaning of the provision in 
 the Navy personnel act of March 3, 1899, section 
 13 (30 Stat., 1007), that certain commissioned 
 officers of the Navy shall receive the same pay 
 and allowances as are provided for officers of the 
 Army. (6 Comp. Dec, 495.) 
 
 "Warrant" and "commission," outside of 
 naval technicality, are synonymous words. 
 There is no difference in form between a com- 
 mission and a warrant as used in the Navy, 
 except that one recites that the appointment 
 is made "by and with the advice and consent 
 of the Senate," and the other does not. (28 
 Op. Atty. Gen., 325; quoting Brown v. U. S., 
 18 Ct. Cls., 537, 543.) 
 
 Within the meaning of Articles II, III, and 
 IV of the War Risk Insurance Act, unless the 
 context otherwise requires, "the term 'com- 
 missioned officer' includes a warrant officer." 
 (Act Oct. 6, 1917, 40 Stat., 401.) 
 
 See note to section 1408, Revised Statutes, 
 under "Mates are not warrant officers." 
 
 Retirement of warrant officers. — See note 
 to section 1448, Revised Statutes. 
 
 The laws relating to the retirement of officers 
 of the Navy ha\ing been uniformly held by 
 the officers charged with their execution to be 
 applicable to warrant as well as commissioned 
 officers, such holding is sustained, although it 
 must be conceded that were the question a new 
 one the true construction of the law would be 
 open to doubt. (Brown v. U. S., 113 U. S., 
 568.) 
 
 A mate who served during the Civil War was 
 not entitled to retirement with higher rank and 
 pay as allowed by law to officers of the Navy 
 na\ing such service, because he was not one of 
 the mates to whom Congress had granted the 
 benefit of the retirement laws relating to war- 
 rant officers. (See note to sec. 1408, R. S.) If 
 appointed a boatswain, this mate would be en- 
 titled, on account of his Civil War service, to 
 retirement with the rank and retired pay of a 
 chief boatswain six months after such appoint- 
 ment. Held, that he may validly waive his 
 right to retirement as chief boatswain, in con- 
 sideration of his appointment as boatswain and 
 retirement with that rank. (File 3031-57, 
 July 31, 1908, case of Thomas G. McDonough, 
 
 511 
 
Sec. 140' 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 app<>inte<l a boatswain in the Navy Aug. G, 
 1908, and retire<l as boatswain Feb. 6, 1909, 
 upon his own application after 30 years' 
 service. Compare U. S. v. Andrews, 240 U. 
 S., 90.) 
 
 Revocation of warrant. — See note to sec- 
 tion 1109, Revised Statutes. 
 
 Ages of candidates for appointment. — 
 Candidates from civil life for machinist in 
 the Navy must by law be "not above thirty 
 vears of age." (Act Mar. 3, 1899, sec. 14, 30 
 Stat., 1007.) 
 
 No person shall be appointed a pay clerk in 
 the Nii\'y "unless his accumulated previous 
 service in the Army, Navy, and Marine Corps, 
 together with his possible future service prior 
 to attaining the age of sixty-two years, will 
 amount to at least thirty years." (Act Mar. 3, 
 1915, 38 Stat., 942.) 
 
 In making temporary appointments author- 
 ized by the act of May 22, 1917 (40 Stat., 85, 
 sec. 5), as amended by act of July 1, 1918 (40 
 Stat., 716), "the maximum age limit shall be 
 fifty years for * * * enlisted men of the 
 Navy to warrant rank." 
 
 A "candidate for appointment as boatswain or 
 gunner in the Navy, other than such as are pre- 
 \'ided for in section 1407, Revised Statutes, 
 must be under thirty-five years of age. (Arts. 
 R-3313, 3314, Navy Regs.. 1913.) 
 
 A candidate for appointment as machinist in 
 the Na^^, who at the time of making applica- 
 
 Sec. 1406. [Warrant officers; title.] Boatswains, gunners, carpenters, 
 and sailmakers shall be known and shall be entered upon the Naval Register 
 as " warrant officers in the naval service of the United States." — (2 July, 1864, 
 c. 219, s. 2, V. 13, p. 373.) 
 
 t ion is enlisted in the Navy, other than such 
 as are provided for in section 1407, Revised 
 Statutes, "must not be more than thirty-five 
 yearsof age." (Art. R-3315, Navy Regs., 1913.) 
 
 A candidate for carpenter in the Navy, other 
 than such as are provided for in section 1407, 
 Revised Statutes, must be under thirty-five 
 years of age. (Art. R-3316, Navy Regs., 
 1913.) 
 
 No person shall be appointed a pharmacist 
 unless his accumulated previous service in the 
 Army, Navy, and Marine Corps, together with 
 his possible future service prior to attaining the 
 age of 64 years, will amount to at least 30 
 years. 
 
 Special age limits for officers appointed to 
 the Regular Navy by transfer from the tem- 
 porary Navy and Naval Reserve Force were 
 prescribed by act of June 4, 1920, section 5 
 (41 Stat., 835). 
 
 For cases construing statutory ages for 
 appointment in the Navy, see note to section 
 1370, Revise<l Statutes. 
 
 The Navy Department does not deem it desir- 
 able to make an exception in the case of a mate 
 who makes application to take the examination 
 for boatswain in the Navy, and who, at the date 
 of the next examination, would be about nine 
 and one-half years over the maximum age pre- 
 scribed for candidates for that grade. (File 
 3031-55, June 16, 1908.) 
 
 Amendment to this section has been made by 
 the acts noted under section 1405, creating 
 the additional grades of warrant officers 
 designated as machinists, pharmacists, and 
 pay clerks. 
 
 Sailmakers now obsolete. See note to section 
 1405. 
 
 Commissioned warrant oflB.cers. — Chief 
 boatswains, chief gunners, chief machinists, 
 chief carpenters, chief sailmakers, chief phar- 
 macists, and chief pay clerks, are designated as 
 "commissioned warrant officers." (See Art. 
 R-1013 (2), Navy Regs., 1913.) 
 
 Sec. 1407. [Warrant officers; seamen promoted for heroism. Medals of 
 honor.] Seamen distinguishing themselves in battle, or by extraordinary 
 heroism in the line of their profession, may "be promoted to forward warrant 
 officers, upon the recommendation of their commanding officer, approved by 
 the flag-officer and Secretary of the Navy. And upon such recommendation 
 they shall receive a gratuity of one hundred doUars and a medal of honor, to 
 be prepared under the direction of the Navy Department. — (17 May, 1864, c. 
 89, s. 3, V. 13, pp. 79, 80.) 
 
 Amendment to this section was made by act of 
 March 3, 1901 (31 Stat., 1099), which ex- 
 tended the benefits of a gratuity and medal 
 of honor under this section to "any en- 
 listed man of the Navy or Marine Corps 
 who shall have distinguished himself in 
 battle or displayed extraordinary heroism 
 in the line of his profession." 
 
 Appointment as warrant officer does not dis- 
 charge man from his enlistment. (Sec. 
 1409, R. S.) 
 
 Appointment of warrant officers from enlisted 
 men is further provided for by section 1417, 
 
 Revised Statutes, as amended, which pro- 
 vides that nothing contained therein shall 
 be held to abrogate the provisions of sec- 
 tion 1407, Revised Statutes. 
 
 Appointment of acting warrant officers, see note 
 to section 1410, Revised Statutes. 
 
 By resolution May 4, 1898 (30 Stat., 741), the 
 Secretary of the Navy was authorized to 
 issue a rosette or knot to persons awarded 
 medals of honor under the law embodied 
 in this section, "to be worn in lieu of the 
 medal, and a ribbon to be worn with the 
 medal"; also, additional ribbons in place 
 
 512 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1407. 
 
 of those lost or destroyed without fault of 
 persons to whom issued. 
 
 Campaign badges and ribbons for officers and 
 men of the Navy and Marine Corps who 
 have participated in engagements and cam- 
 paigns deemed worthy of such commemo- 
 ration, authorized bv act of Mav 13, 1908 
 (35 Stat., 132). 
 
 Duplicate medals in lieu of lost medals issued 
 prior to April 15, 1904, by authority of any 
 law, for distinguished or meritorious serv- 
 ices, may be prepared and delivered 
 without charge to persons to whom original 
 medals were presented, when loss was with- 
 out fault of beneficiarv . (Res. Apr. 15, 
 190-1, 33 Stat., 588.) 
 
 Foreign decoration or other thing, accepted by 
 consent of Congi'ess, shall not be publicly 
 shown or exposed upon the person of the 
 officer recei\dng same. (Act Jan. 31, 1881, 
 sec. 2, 21 Stat., 604; see note to Constitu- 
 tion, Art. I, sec. 9, clause 8.) The accept- 
 ance and wearing of foreign medals and 
 decorations under certain prescribed con- 
 ditions was authorized bv the Armv act of 
 July 9, 1918 (40 Stat., 872). wMch act ap- 
 plies to the Navy and Marine Corps. (Op. 
 Atty. Gen., May 9, 1919, file 9644-55.) 
 
 Life-sa\'ing medals of honor are to be awarded 
 by Secretary of the Treasiu^^ to any per- 
 sons ''making signal exertions in rescuing 
 and succoring the shipwrecked and saving 
 persons from drowning in the waters over 
 which the United States has jurisdiction." 
 (Act June 20, 1874, sec. 7, 18 Stat., 127; 
 act June 18, 1878, sec. 12, 20 Stat., 165; 
 act May 4, 1882, sec. 9, 22 Stat., 57; act 
 Jan. 21, 1897, 29 Stat., 494; Navy Regs., 
 1913, art. R-3663.) 
 
 Life-saving medals of honor axe to be awarded 
 to any persons who, by extreme daring, 
 endanger their own lives in saving or en- 
 deavoring to save lives from any wreck 
 upon railroads within the United States: 
 also, rosettes or knots to be worn in lieu of 
 such medals, and ribbons to be worn with 
 medals and replaced when lost or de- 
 stroved without fault of person to whom 
 issued. (Act Feb. 23, 1905, 33 Stat., 743.) 
 
 "Medal of honor roll" established in the Navy 
 Department, upon which shall be entered 
 names of persons awarded medals of honor 
 under certain conditions, and who are cer- 
 tified by the Secretary of Navy to be en- 
 titled to a special pension. (Act Apr. 27, 
 1916, 39 Stat., 53.) 
 
 Officers of the Navy, Marine Corps, or Coast 
 Guard may be awarded medals of honor 
 for distinguished conduct in battle or ex- 
 traordinary heroism in the line of their 
 profession. (Act Mar. 3, 1915, 38 Stat., 
 931.) 
 
 Officers and enlisted men of the naval service 
 may be awarded medais of honor, distin- 
 guished service meda's, and Navy crosses, 
 with rosettes or other devices to be worn 
 in lieu thereof, imder certain prescribed 
 conditions. (Act Feb. 4, 1919, 40 Stat., 
 1056.) 
 
 Pensions are to be allowed certain medal of 
 honor men, in addition to other pensions 
 
 or benefits. (Act Apr. 27, 1916, 39 Stat., 
 53.) 
 
 Spanish War medals, commemorating battle of 
 Manila Bay, were authorized for issuance 
 to officers and men of the Asiatic Squadron 
 under command of Commodore George 
 Dewey, by resolution June 3, 1898 (30 
 Stat., 746); and medals commemorative of 
 the naval and other engagements in the 
 waters of the West Indies and on the shores 
 of Cuba during said war were authorized 
 for issuance to officers and men of the Navy 
 and Marine Corps who participated therein, 
 by resolution of March 3, 1901 (31 Stat., 
 1465), and actof February 27, 1906(34 Stat., 
 35), which also authorized issuance of a 
 bronze bar instead of a second medal to any 
 person entitled to receive recognition in 
 more than one instance. 
 
 Wearing, upon occasions of ceremony, of dis- 
 tinctive badges adopted by certain mili- 
 tary societies by officers and men of the 
 Army and Navy who are members of such 
 organizations in their own right is author- 
 ized bv following statutes: Resolution 
 September 25, 1890, 26 Stat., 681 (Mexican 
 and Ci\al War societies); resolution May 
 
 11, 1894, 28 Stat., 583 (Regular Army and 
 Na\^ Union of the United States); act 
 February 2, 1901, sec. 41, 31 Stat., 758 
 (Spanish- American War and Philippine 
 Insurrection societies); resolution January 
 
 12, 1903, 32 Stat., 1229 (Chinese Relief 
 Expedition societies); resolution March 2, 
 1907, 34 Stat., ^ 1423 (Army and Navy 
 Union of the United States). 
 
 " Forward warrant ofla.cers." — ^Formerly 
 warrant officers' rooms were forward, and they 
 were then called "forward" officers, but this 
 name is no longer used. (Hamersly's Naval 
 Encyclopedia, 1884, p. 834.) 
 
 By Na\y Regulations, 1913 (Art. R 3661) it 
 is provided that seamen distinguishing them- 
 selves in battle, or by extraordinary heroism in 
 the line of their profession, may be promoted to 
 ''warrant officers," if foimd fitted, etc., as pro- 
 vided in this section. 
 
 Appointment of enlisted man as warrant 
 oflB.cer not a "promotion." — The appoint- 
 ment of enlisted men to be warrant or commis- 
 sioned officers is not regarded as a promotion. 
 (5 Comp. Dec, 142. But note language of sec. 
 1407 refers to promotion. As to difference be- 
 tween appointment and promotion, see note to 
 sec. 1458, R. S.) 
 
 The term "flag oflB.cer " is defrned by the 
 Navy Regulations, as used therein, to mean 
 "all officers of the line of the Navy above the 
 rank of captain." (Art. R-1605, Navy Regs., 
 1913.) 
 
 Flag officer is a generic term, signifying a 
 naval officer of rank high enough to cormnand 
 a fleet or one of the subdivisions of a fleet; is 
 the naval equivalent of the military term 
 ' 'general officer." The symbol of his rank is a 
 flag, as distinguished from the broad pennant of 
 a commodore. There are three grades of flag 
 officers — admiral, vice admiral, and rear ad- 
 miral. (Johnson's Universal Cyclopedia.) 
 
 Previous to the abolishing of the grade of 
 commodore, officers of that rank were included 
 
 513 
 
Sec. 1407. 
 
 Pt. 2. REVISED STA TUTES. 
 
 The Navy. 
 
 among flag oflScers. (International Encyclo- 
 pedia.) 
 
 Flap oflBcers are admiral, vice admiral, rear 
 admiral, and commodore. (Hamersly's Naval 
 Encyclopedia.) 
 
 Falconer's ^larine Dictionary mentions ae 
 flag ofiicers, admiral, vice admiral, and rear 
 admiral. 
 
 The King's Regulations (British Navy) do 
 not include commodore among flag officers. 
 
 Ofiicers not below the grade of commander 
 may be assigned by the President to the com- 
 mand of squadrons with the rank and title of 
 "flag-oflicers." (Sees. 1434, 1464, R. S.) 
 
 The annual Na\'y Register, under the head- 
 ing "Flag Officers of the Navy," enters the 
 names of line officers on the active list in the 
 grade of "Rear Admirals." (See Navy Regis- 
 ter, 1921, pp. 10 and 11.) 
 
 Special examination for promotion of 
 warrant oflB.cer appointed for heroism. — 
 An enUsted man was promoted to boatswain, 
 not by Adrtue of his professional qualifications 
 for the position, but for an act of braverj- in face 
 of the enemy ^ as authorized by this section. 
 In due time ne was examined for promotion to 
 chief boatswain, in accordance wdth the Navy 
 personnel act of March 3, 1899, section 12 (30 
 Stat., 1007), as amended by act of April 27, 1904 
 (33 Stat., 346), pro\'iding for promotion of warrant 
 officers after six years from_ date of warrant, 
 subject to prescribed examinations. He was 
 foimd not professionally ^ qualified and sus- 
 pended from promotion in accordance with 
 section 1505, Re\dsed Statutes. He was again 
 examined, at the end of his period of suspen- 
 sion, and found not professionally qualified by 
 reason of deficiency in his knowledge of writ- 
 ing and spelling the English language to a 
 degree that would incapacitate him from per- 
 forming the duties of a chief boatswain," and 
 also lack of "knowledge of signals and rules of 
 the road." If this finding were approved, the 
 candidate must "be dropped from the servdce" 
 under the pro\dsion8 of section 1505. How- 
 ever, the Navy Department "does not believe 
 that a warrant officer of the Na\^, appointed 
 under such conditions, should be dropped from 
 the naval service on account of a failure to pass 
 a written professional examination." Held, 
 that the finding of the examining board in this 
 case need not be either approved or disapproved 
 in its present form, but the record may be re- 
 turned for a further examination of the candi- 
 date in the subjects of signals and rules of the 
 road, with directions that the board omit from 
 consideration his deficiency in "writing and 
 spelling the English language," and amend its 
 miding accordingly; or the record may be dis- 
 approved and the candidate ordered before 
 another board for such examination as may be 
 considered necessary, as the law does not. pre- 
 scribe the nature of the examination required, 
 i. e., whether written or oral, the character of 
 questions to be asked the candidate, nor the 
 subjects covered thereby. Further, held that 
 action upon the record can not be indefinitely 
 withheld, and the officer continued in the 
 grade of boatswain, as the law requires the 
 entire record be presented to the President for 
 his approval or disapproval of the finding, and 
 
 if approved, the officer must be dropped from 
 the service. (File 26260-684, Jan. 8, 1910. 
 The President disapproved the finding of the 
 board and directed that the candidate be ex- 
 amined orally in such subjects as might be 
 necessary to establish his professional qualifi- 
 cations for promotion. Upon such oral ex- 
 amination he was found qualified and pro- 
 moted. (File 26260-^84:2, June 3, 1910.) 
 
 Marines entitled to gratuity and medal 
 of honor under this section and not under 
 Army statutes. — Section 1216, Re\dsed Stat- 
 utes, as amended, which empowers the Presi- 
 dent to grant a certificate of merit to an enlisted 
 man of the Army who has distinguished himself 
 in the service and has been recommended 
 therefor by the commanding officer of the 
 regiment or the chief of the corps to which such 
 man belongs, applies only to enlisted men of 
 the Army and not to members of the Marine 
 Corps who have been similarly commended. 
 The latter are provided for by a specific pro- 
 vision which in its original form (sec. 1407, 
 R. S.) conferred upon seamen a gratuity and 
 medal of honor for distinguished and heroic 
 servdce; and by the act of March 3, 1901 (31 
 Stat., 1099), this reward was expressly extended 
 to any enlisted man of the Navy or Marine 
 Corps who shall have distinguished himself 
 in battle or displayed extraordinary heroism 
 in the line of his profession. In \dew of the 
 clear distinction created by the terms of the 
 law between the enlisted men of the Army and 
 of the Navy and Marine Corps, respectively, in 
 regard to extraordinary reward for distinguished 
 sen,dce, section 1612, iFlevised Statutes, assimi- 
 lating the Marine Corps to the Army in respect 
 to ordinary pay, allowances, and bounty for 
 reenlisting, is not applicable to the special 
 reward for gallant service so as to bring the 
 Marine Corps within section 1216. (24 Op. 
 Atty. Gen., 579.) 
 
 Time of making award. — The change in 
 the language, "upon such promotion," found 
 in the original law (acts July 16, 1862, and 
 May 17, 1864), to "upon such recommenda- 
 tion," as found in section 1407, clearly changed, 
 after the passage of the Re^dsed Statutes, the 
 conditions upon which the gratuity should be 
 received. (3 Comp. Dec, 736.) 
 
 By section 3 of the act approved May 17, 
 1864 (13 Stat., 79), a seaman 'distinguishing" 
 himself in battle, etc., could receive the 
 gratuity and medal of honor, as p^o^dded 
 therein, only on being promoted. By section 
 1407 the act of 1864 was enlarged by not re- 
 quiring the promotion of the seaman as a pre- 
 requisite to his receiving the gratuity of $100 
 and the medal of honor. (7 Comp. Dec, 844.) 
 
 [See 24 Op. Atty. Gen., 580, holding that in 
 the Army "a medal of honor cannot be awarded 
 where the application or recommendation 
 therefor is made after the officer or pri-\-ate has 
 been discharged from the militarv service"; 
 following 24 Op. Atty. Gen., 127, which held 
 that "the President cannot grant a certificate 
 of merit (to an enlisted man of the Army who 
 has distinguished himself in service) if the 
 recommendation therefor by the commanding 
 officer or chief of his corps was made after the 
 enlisted man was discharged from the military 
 
 514 
 
The Navy- 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1408. 
 
 Bervice " ; construing sections 1216 and 1285, 
 Revised Statutes, as amended; see also, 
 8 Comp. Dec, 875; 9 Comp. Dec, 160.] 
 
 Amendment of 1901 held to be retro- 
 active. — Neither section 1407 nor the law on 
 which it was based included the Marine 
 Corps; the term "seamen" has a limited 
 application in the Navy and applies only to 
 a certain class of enlisted men. The words of 
 the act of 1864 and section 1407, "seamen dis- 
 tinguishing themselves" are prospective. 
 Congress changed the language in the act of 
 March 3, 1901, above quoted, to embrace any 
 enlisted man of the Na\y or Marine Corps, 
 "who shall have distinguished himself," and 
 provided that he should receive the benefits 
 of gratuity and medal of honor authorized^ for 
 seamen in section 1407. The act of 1901 is a 
 beneficial statute and should be liberally 
 construed. The words quoted, when taken 
 in connection with the subject matter with 
 which Congress was legislating, a.nd the other 
 language of the act, render the act retro- 
 spective in its operation and give to the act 
 the same effect as if it had been a part of section 
 1407 when it was enacted. The Judge Advo- 
 cate General of the Na^^/, in an opinion con- 
 struing the act of 1901, held that said act is 
 retroactive to the date of the enactment of 
 section 1407 of the Revised Statutes; that had 
 Congress intended that the act of 1901 should 
 be limited in its benefits to the future only, 
 it is not unreasonable to suppose that it would 
 have employed the language used in previous 
 acts, instead of changing the language so as 
 to be susceptible of both past and future 
 application. (7 Comp. Dec, 844. Compare 
 cases noted in Introduction, under "Statutory 
 Construction," VI, C, 7; and compare, file 
 8627-189, May 12, 1915.) 
 
 Jurisdiction to determine merits of 
 case.— By the act of 1901 it devolves upon the 
 commanding officer, the flag officer, and the 
 Secretary of the Navy to determine when an 
 enlisted man of the Navy or Marine Corps shall 
 have 80 distinguished himself in battle or dis- 
 played extraordinary heroism in the line of his 
 profession as to entitle him to a medal of honor 
 by virtue of said act, and if he is so entitled, and 
 has received a medal of honor as provided for 
 in said act, but has not received the gratuity of 
 $100, he is entitled to receive same. (7 Comp. 
 Dec, 844.) 
 
 Appropriation available for payment of 
 gratuity. — The gratuity of $100 allowed sea- 
 men in the Navy by section 1407, Revised Stat- 
 utes, is in the nature of extra compensation or 
 extra pay, and is properly payable from the 
 appropriation "Pay of the Navy." The act of 
 June 19, 1878 (20 Stat., 167), which established 
 a "General account of advances" in the Navy, 
 and provided "that 'Pay of the Navy' shall 
 hereafter be used only for its legitimate pur- 
 pose, as provided by law," was intended to pro- 
 hibit the use of the appropriation "Pay of the 
 
 Navy" for the purpose of paying in the first 
 instance items properly chargeable to other 
 appropriations, subject to transfer upon settle- 
 ment by the accounting oflScers to the appropri- 
 ation pro]>erly chargeable with such items, as 
 had theretofore been the practice, and not to 
 change the purposes for which the appropria- 
 tion "Pay of the Navy" could be properly 
 used. (3 Comp. Dec, 736.) 
 
 Medal is personal property of man to 
 whom awarded. — A medal of honor is the per- 
 sonal property of the man to whom awarded, 
 and the na\ai authorities can not prevent him 
 from wearing same after his discharge for bad 
 conduct or undesirability, and when he ia not 
 under naval jurisdiction. Buttons, cap orna- 
 ments, figures, letters, and chevrons, etc, are 
 part of a marine's uniform, furnished to him 
 under a clothing allowance, and may properly 
 be removed and retained when he is so dis- 
 charged ; but medals of honor, campaign badges, 
 and insignia received because of past meri- 
 torious services do not come under the same 
 category. (File 26519-3:1, Dec. 19, 1914, and 
 Jan. 13, 1915; see also 25 Op. Atty. Gen., 529, 
 and act June 3, 1916, sec. 125, 39 Stat., 216, 
 forbidding unauthorized wearing of \mi- 
 form.) 
 
 Withholding medal after award but prior 
 to deUvery. — By desertion, an enlisted man 
 forfeits his right to pay and allowances earned 
 but not received, and the term "allowances," 
 as defined in United States v. Landers (92 
 U. S., 77), includes medals of honor, good con- 
 duct medals, and campaign badges. Accord- 
 ingly, medals of honor, awarded but not de- 
 livered, should be refused in cases of men who 
 have subsequently deserted during the enlist- 
 ment in which the award was made, even 
 though they were not tried therefor by court- 
 martial and dishonorably discharged. How- 
 ever, if the desertion occurs in a subsequent 
 enlistment, the man does not thereby forfeit 
 any medal or badge earned but not delivered 
 in a previous enlistment. (File 26519-3, Dec. 
 1, 1914.) 
 
 "If the man is not a deserter, but his service 
 for other reasons has not been honorable, he 
 must, nevertheless, be given any medal of 
 honor to which he would otherwise be entitled, 
 his right thereto being absolute under the law." 
 (File 26519-3, Dec. 1, 1914.) 
 
 Whether section 1407 has been re- 
 pealed as to medals. — \\Tiile the act of 
 February 4, 1919 (40 Stat., 1056) authorizing 
 the presentation of medals of honor, etc., to 
 persons in the naval service does not expressly 
 repeal the provisions of section 1407, Revised 
 Statutes, as enlarged by the act of March 3, 
 1901 (31 Stat., 1099), yet as the scope of the 
 later legislation indicates that Congress was 
 dealing ^\'ith the entire subject involved, the 
 subsequent provision is to be regarded as a 
 complete substitute for the earlier law. (26 
 Comp. Dec, 464; but see file 9644-489.) 
 
 Sec. 1408. [Mates; rating of enlisted men as.] Mates may be rated, 
 under authority of tlie Secretary of the Navy, from seamen and ordinary 
 seamen who have enlisted in the naval service for not less than two years. — 
 (17 May, 1864, c. 89, s. 3, v. 13, p. 79. 3 Mar., 1865, c. 124, s. 3, v. 13, p. 539.) 
 
 515 
 
Sec. 1408. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 Mates of steam vessels licensed under Title LI I 
 of the Revised Statute's shall be subject to 
 draft in time of war, only for the perform- 
 ance of duties such as rerjiured by their 
 license, and while performing; such dutieo 
 in the service of the United States shall be 
 entitled to the highest rate of wages paid in 
 the Merchant Marine of the United States 
 for similar services; and if killed or wound- 
 ed while performing such duties imder the 
 United States, they or their heirs, or their 
 legal representatives shall be entitled to 
 all the privileges accorded to soldiers and 
 sailors serving in the Army and Navy, un- 
 der the pension laws of the United States. 
 (Act May 28, 1896, sec. 2, 29 Stat., 188, 
 which relates also to licensed masters, 
 pilots, and engineers.) 
 Pay of mates who were serving as such on Au- 
 gust 1, 1894, was fixed by act of that 
 date (28 Stat., 212); the pay of other mates 
 was fixed by section 1556, Revised Statutes. 
 The pay of all mates was increased 25 per 
 cent by act May 13, 1908 (35 Stat., 128). 
 (See below, "Pay and allowances of 
 mates.") 
 Retirement of mates who were serving as such 
 on August 1, 1894, was provided for bv act 
 of that date (28 Stat., 212). As to re- 
 tirement of other mates, see act March 3, 
 1899, section 17 (30 Stat., 1008), relating to 
 the retirement of enlisted men and ap- 
 pointed petty officers, and amendments to 
 said act; see also cases noted below. 
 Term of enlistment in the Navy, see note to 
 section 1418, Revised Statutes. 
 Historical note. — From the year 1799 
 master's mates in the U. S. Navy were warrant 
 officers, except when acting under temporary 
 and probationary appointments. Warrants 
 were issued to them after at least one year's 
 sea ser\dce under a probationary appoint- 
 ment. No such warrants were, however, issued 
 after 1843, and in 1847 a regulation of the Navy 
 Department forbade commanding ofiicers to 
 make such probationary appointments. (U. S. 
 V. Fuller, 160 U. S., 593.) 
 
 On October 7, 18G3, the Secretary of the 
 Na\'y issued the following circular: "Seamen 
 enlisted in the naval servdce may hereafter, as 
 formerly, be advanced to the rating of master's 
 mate, and such rating may be bestowed by the 
 commander of a squadron, subject to the ap- 
 proval of the department, or by the commander 
 of a vessel, with the previous sanction of the 
 department. Seamen so rated will be entitled 
 to the same pay, rank, and pri\'ileges as ap- 
 pointed or warranted master's mates, but vdll 
 not be released by their rating from the obliga- 
 tions of their enlistment, and may be disrated 
 by the order or with the sanction of the depart- 
 ment. They will not, while rated as master's 
 mates, be considered as subject to trial by a 
 summary court-martial, nor be disrated by 
 transfer, as in the case of petty officers. Sea- 
 men rated as master's mates will not be dis- 
 charged with that rating, and will be con- 
 sidered as disrated to seamen upon the expira- 
 tion of their enlistment, but upon their imme- 
 diate reenlistment the rating of master's mate 
 may be considered as renewed. The accept- 
 ance of such renewed rating will be considered 
 
 as renunciation of anv claim to additional pay 
 for reenlistment. All ratings of master's mates 
 made by order of the commander of a sfjuadron, 
 and all such ratings renewed by reenlistment, 
 will be reported to the department as early as 
 practicable." (U. S. r. Fuller, 160 U. S., 593.) 
 
 Prior to 1843, "masters mates" were recog- 
 nized by the law as warrant officers, or as "war- 
 ranted master's mates," and appear to have 
 been sometimes appointed by the President 
 and sometimes rated (that is, promoted from 
 lower grades) by commanding officers. But 
 shortly after this time they seem to have fallen 
 into disuse, and no further appointments were 
 made, although the grade was not formally 
 abolished and those who had been previously 
 appointed continued to hold their offices and 
 receive their pay. At the outbreak of the civil 
 war, however, a great increase in all the naval 
 forces became necessary, and the Secretary of 
 the Navy made temporary appointments of 
 "acting masters and master's mates," which 
 were confirmed by act of Congress of July 24, 
 1861, c. 13, 12 Stat., 272. By act of March 3, 
 1865, c. 124, 13 Stat., 539, their names were 
 changed to that of "mates," and the Secretary 
 of the Navy was authorized to increase their pay 
 and to rate them from seamen and ordinary 
 seamen who had enlisted in the naval sei-vice 
 for not less than two years. By the act of Julv 
 15, 1870, c. 294, 16 Stat., 321, 330, they were 
 formally recognized as a part of the naval forces 
 and their pay was fixed at S900 when at sea, 
 $700 on shore duty, and $500 on leave or waiting 
 orders. These amounts were raised in 1894, 28 
 Stat., 212. Act of August 1, c. 176. (U. S. v. 
 Fuller, 160 U. S., 593.) 
 
 The act of March 3, 1865 (13 Stat., 539, sec. 2), 
 provided as follows: "That acting masters' 
 mates shall be styled mates, and the Secretary 
 of the Navy is hereby authorized to increase 
 their pay to the sum of not exceeding sixty 
 dollars per month." (9 Comp. Dec, 600.) 
 
 The appointment of mates as at present 
 designated was first authorized by Congress in 
 the acts of May 17, 1864, and March 3, 1865 (13 
 Stat., 79, 539), now embodied in the Revised 
 Statutes, section 1408. The quota was not 
 fixed, but from a maximum of about 842 on 
 January 1, 1865, the number gradually dimin- 
 ished until July 1, 1894, when there were 27 
 remaining, the majority of whom had had 
 servdce during the civil war. Prior to August 
 1, 1894, there had been no authority for the 
 retirement of mates, but on that date a law 
 was passed increasing the pay of mates then in 
 the service and providing that said mates should 
 have the benefits of retirement the same as 
 warrant officers. (File 3031-40, Mar. 11, 1908.) 
 
 One purpose of the act of August 1, 1894 (28 
 Stat., 212), was, by increasing the rates of pay 
 for active service, to make the retired pay of 
 mates large enough to induce the retirement of 
 these officers, which was also provided for in 
 this act. At the time of the enactment of this 
 legislation, it was the intention to allow the 
 grade of mate to gradually go into abeyance, 
 but it now appears to be the purpose of the 
 naval authorities to revive it, which may be 
 done under the authority conferred by section 
 1408 of the Revised Statutes. (4 Comp. Dec, 
 124. See also file 26255-14, May 4, 1909, quot- 
 
 516 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1408. 
 
 ing debates in Congress upon act of Aug. 1, 
 1894, to the effect that after retirement of mates 
 then in the ser\'it'e no further apjjointments 
 were to be made to that grade.) 
 
 Mates are enlisted men and should be 
 discharged upon expiration of enlist- 
 ment. — The contract of an enlisted man is a 
 contract to serve the Government in that capac- 
 ity for a period specified. In this case, upon 
 the expiration of the mate 's term of enlistment, 
 his contract was performed and was no longer a 
 bar to his discharge by the Government. 
 Strictly in this case the mates should have been 
 given their discharges on the expiration of their 
 enlistments. (26 Op. Atty. Gen., 319.) 
 
 "Mates in the Navy should be discharged 
 from the service on the expiration of their en- 
 listments." (File 3031-16, Aug. 15, 1907.) 
 
 "I do not agree with the Attorney General 
 that strictly mates should be discharged on the 
 expiration of their enlistments, as section 1409, 
 supra, clearly contemplates that no further en- 
 listment after their rating as mates is necessary 
 for their continuance in the service as mates. 
 Of course they may be discharged at any time, 
 and the Secretary of the Navy, upon the sug- 
 gestion contained in the Attorney General's 
 opinion, has ordered the discharge of mates 
 and has directed that they may reenlist in the 
 rating of mate, thus establishing a new prac- 
 tice." (14 Comp. Dec, 457; compare Navy 
 Department circular of Oct. 7, 1863, quoted 
 above, under "Historical Note.") 
 
 Mates are enlisted men who are rated by the 
 Secretary of the Navy, and such rating does 
 not discharge them from their enlistment. 
 They may be reenlisted and discharged the 
 same as other enlisted men. (File 3031-57, 
 June 25, 1908; file 7657-445, June 21, 1917.) 
 
 Status of mates when not discharged 
 upon expiration of enlistment. — An en- 
 listed man in the Navy who was appointed as 
 mate and continued to serve as such after the 
 expiration of his term of enlistment without 
 receiving a discharge is still in the service and 
 entitled to his discharge and may be permitted 
 to reenlist with the benefits of continuous serv- 
 ice. (26 Op. Atty. Gen., 319.) 
 
 As far as concerns any question here, the 
 contract of an enlisted man differs in no respect 
 from a contract by one individual to serve 
 another during a specified period. In either 
 case, if the man continues to perform the serv- 
 ice until the end of the period specified, and if 
 the other party has also performed, the contract 
 is at an end. Under such circumstances an 
 enlisted man could not require the Govern- 
 ment to retain him in the service, nor would 
 the Government ordinarily compel him to 
 remain. This does not refer to those special 
 circumstances, such as absence from the United 
 States, etc., which might exceptionally affect 
 this general statement. But in this case, as in 
 a case of a contract between individuals, if 
 neither party desires to terminate the service, 
 but it continues without any express contract, 
 it will be held to be a continuance of the service 
 upon the same terms as before, but not for any 
 defimte period. That the mates in this case 
 were not discharged upon expiration of their 
 enlistments was due to the Government, which 
 is estopped to say that these men are not in the 
 
 service as before. Being in the service and 
 their terms of enlistment having expired, they 
 are, of course, entitled to be discharged; and 
 where they have rendered the continuous serv- 
 ice required by the regulations, may be per- 
 mitted to reenlist with the benefits thereof. 
 (26 Op. Atty. Gen., 319.) 
 
 Where a mate was not discharged from the 
 service on the expiration of his enlistment, in 
 accordance with the Navy Department's in- 
 structions of August 15, 1907, he should be given 
 a discharge to take effect from the date on which 
 issued. (File 3031-19, Oct. 25, 1907.) 
 
 A mate of the Navy who was not discharged 
 at the expiration of the term of his enlistment 
 continues to be an enlisted man so long as he 
 holds the position or rating of mate. (14 Comp. 
 Dec, 457, loUowing 26 Op. Atty. Gen., 319.) 
 
 Mates are not "officers of the Navy." — 
 The act of June 30, 1876, section 1 (19 Stat., 
 65), provided that "officers of the Navy" 
 should be allowed mileage while traveling on 
 public business. Mates being rated by the 
 Secretary of the Navy "from seamen and ordi- 
 nary seamen who have enlisted in the naval 
 service for not less than two years" (sec. 1408, 
 R. S), and not being otherwise appointed, can 
 not be classed as officers within the meaning 
 given thereto by the court in the case of U. S. 
 V. Mouat, 124 U. S., 303, 307 [noted under Con- 
 stitution, Art. II, sec. 2, clause 2, "I. Officers 
 of the United States " j. In the act of 1876 Con- 
 gress is presumed to have used the word in the 
 sense in which "officers" has been defined; 
 and there being no language in the act con- 
 veying a different sense, the court must give it 
 the meaning the word unequivocally imports. 
 Held, therefore, that claimant, a mate, was not 
 an officer within the meaning of the law; that 
 he was not appointed by the President or by a 
 court of law, and that the action of the Secre- 
 tary of the Navy in rating or promoting him 
 from seaman, as pro\"ided in section 1408, was 
 not sufficient action on the part of the Secretary 
 as head of the Navy Department to constitute 
 him an appointed officer, nor even an officer 
 within the meaning of the mUeage act. (Bax- 
 ter i;. U. S., 32 Ct. Cls., 75.) 
 
 The rating of an enlisted man of the Navy 
 as mate is not an appointment by the Secretary 
 of the Navy. He remains in the service all the 
 time, and this rating is in effect but an order 
 which he must obey after being rated. The 
 question of acceptance does not, therefore, 
 arise, because he has no choice whether he will 
 or will not accept the rating and perform the 
 duties. (13 Comp. Dec, 514.) 
 
 For other cases, see note to Constitution, 
 Article II, section 2, clause 2, under "I. 
 Officers of the United States," and see below, 
 "Mates are 'officers of the Navy' for certain 
 purposes." 
 
 Mates are not warrant officers.— The 
 personnel of the Navy is divided, generally, 
 into commissioned officers, noncommissioned 
 or warrant officers, petty officers, and seamen of 
 various grades and denominations. That a 
 mate is not a commissioned officer is entirely 
 clear; it is equally clear that he is above the 
 grade of seaman, and the real question is 
 whether he is a noncommissioned or warrant 
 officer, a person "temporarily appointed to the 
 
 517 
 
Sec. 1408. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 duties of a commissioned or warrant officer" 
 or a "petty officer." (U. S. v. Fuller, 160 
 U. S., 593.) 
 
 Mates are not warrant officers. The act of 
 August 1, 1894, providing that "the law regu- 
 lating the retirement of warrant officers in the 
 Navy shall be construed to apply to the twenty- 
 eight officers now serving as mates in the Navy " 
 "would be quite unnecessary if, under the gen- 
 eral provisions of law, they fell within the 
 designation of warrant officers." (U. S. v. 
 Fuller, 160 U. S., 593.) 
 
 The argument that a ' 'warrant' ' is defined to 
 be "an instrument conferring authority upon 
 persons, inferior to a commission," and that 
 mates must therefore be warrant officers, 
 because they are appointed by the Secretary of 
 the Navy, proves too much, since all petty 
 officers hold some sort of designation from a 
 superior authority; and if a warrant be an in- 
 strument inferior to a commission, this would 
 make all petty officers warrant officers. On 
 the other hand, as by section 1405 warrant 
 officers are appointed by the President, it 
 would seem to follow that if they held their 
 appointments from an inferior authority they 
 were not to be considered as warrant officers. 
 After some hesitation and apparent confusion 
 of opinion on the part of the Navy Department, 
 this was the construction of the Revised Stat- 
 utes finally settled upon by the Navy Regula- 
 tions of 1893, article 28, and we think it is cor- 
 rect. The only difficulty in the case seems to 
 have arisen from certain acts prior to the Re- 
 vised Statutes, notably the act of 1813, which 
 dealt with warranted "master's mates," under 
 which mates continued to be classified by the 
 Navy Department as warrant officers until the 
 Re\dsed Statutes were adopted. (U. S. v. 
 Fuller, 160 U. S., 593. See also note to sec. 
 1405, R. S., under "Warrant officers not com- 
 missioned officers.") 
 
 Mates retired with the rank and pay of war- 
 rant officer, in accordance with the Attorney 
 General's opinion, on account of Civil War 
 service, do not obtain the grade of warrant 
 officers, but continue to be mates and should 
 be eo designated. The Navy Department 
 can not, therefore, confer upon them the title 
 of a grade of warrant officers to which they do 
 not belong. (File 3031-28, Dec. 12, 1907.) 
 
 Mates are not "temporarily appointed 
 to the duties of a commissioned or -war- 
 rant oflB.cer." — We think there is no authority 
 for saying that they are ternj:)orarily appointed 
 to the duties of a warrant officer within the ex- 
 ception to section 1410, Revised Statutes. 
 WTiile the words "acting master's mates," 
 sometimes employed prior to the Revised 
 Statutes, might indicate, by the use of the word 
 "acting," a person temporarily appointed to 
 the duties of a master's mate, officers who are 
 recognized by law and whose pay is fixed by a 
 permanent statute can not be said to be tem- 
 porarily appointed. (U. S. v. Fuller, 160 U. S., 
 593.) 
 
 Mates are " petty officers." — Mates are 
 petty officers, and as such are entitled to 
 rations or commutation therefor, under sec- 
 tions 1579 and 1585, Revised Statutes. (U. S. 
 V. Fuller, 160 U. S., 593, afiirming 30 Ct. Cls., 
 108; see also Baxter v. U. S., 32 Ct. Cls., 108.) 
 
 Mates had not been regarded as petty officers 
 by the Treasury Department nor by tjfie Navy 
 Department prior to the adoption of the Navy 
 Regulations of 1893. (U. S. v. Fuller, 160 
 U. S.,593.) 
 
 Mates are officers not holding commissions 
 or warrants and not entitled to them within the 
 meaning of section 1410, Revised Statutes, 
 and are therefore jietty officers, promoted by 
 the Secretary of the Navy from seamen of 
 inferior grades, who have enlisted for not less 
 than two years, and they are distinguished from 
 other petty officers only in the fact that their 
 pay is fixed by statute instead of by the Presi- 
 dent. The exception of mates from other 
 petty officers, in section 1569, indicates that 
 they are petty officers. (U. S. v. Fuller, 160 
 U. S., 593.) 
 
 Mates are "officers of the Navy" for 
 certain purposes. — Mates whose names are 
 borne on the retired list of officers of the Na\^'^, 
 in accordance with the act of August 1, 1894 
 (28 Stat., 212), are officers of the Navy, but they 
 are neither commissioned nor warrant officers, 
 although with respect to the law regulating 
 retirements, they are placed upon the same 
 footing as warrant officers under the act of June 
 29, 1906 (34 Stat., 554), providing for advanced 
 rank on retirement of officers who served 
 during the Civil War._ (260p. Atty. Gen., 433.) 
 
 Although commissioned officers of the Navy 
 are appointed by the President, by and with 
 the advice and consent of the Senate, warrant 
 officers by the President alone, and mates by 
 the head of a department, all are alike officers 
 of the United States, and in accordance with 
 the acts of 1894 and 1906, all are alike entitled 
 to the benefits of the advancement provided 
 for by the last-mentioned act whenever other- 
 wise qualified. (26 Op. Atty. Gen., 433. But 
 see above, "Mates are not 'officers of the 
 Navy.'") 
 
 Not only is it expressly provided in section 
 1409 that when an enlisted man becomes a 
 mate, his duties and rights as an enlisted man 
 remain unaffected, but the same provision is 
 made with respect to warrant officers; and if 
 the fact of enlistment should be held a bar to 
 securing the benefits of the act of 1906 in the 
 case of mates, this might be equally true with 
 respect to warrant officers as well. (26 Op. 
 Atty. Gen., 433.) 
 
 Mates who were in the Navy on August 1, 
 1894, are officers within the meaning of section 
 11 of the Navy personnel act of March 3, 1899 
 (30 Stat., 1007), and of the act of June 29, 1906 
 (34 Stat., 554), both relating to advanced rank 
 on retirement of officers who served during the 
 Civil War. (26 Op. Atty. Gen., 615.) 
 
 "For the purposes of retirement certain 
 mates are considered as officers." (File 3031- 
 28, Dec. 12, 1907.) 
 
 Article 1-4912 (3\ Naval Instructions, 1913, 
 provides for the witnessing of signatures, and 
 states that "in the case of enlisted men each 
 signature shall be wntnessed by an officer." 
 Article R-4384 (1), Navy Regulations, 1913, 
 requires that pay receipts shall bear "an 
 officer's signature as witness to the genuineness 
 of that of the man," and that "no officer shall 
 witness a receipt unless it be actually signed in 
 his presence and he be personally acquainted 
 
 518 
 
The Navy. 
 
 PL 2. RE VISED STAT UTES . 
 
 Sec. 1408. 
 
 with the signer." Held, "as it is not specified 
 that the witnessing officer be of any particular 
 rank, but merely that the signature shall be 
 witnessed by an officer, and as it was decided 
 by the Attorney General (26 Op. Atty. Gen., 
 433), that a mate is an officer of the Navy, the 
 department sees no objection to the witnessing 
 of the pay receipts of enlisted men by a mate 
 in the Navy." (P'ile 4856-15, June 18, 1913.) 
 
 In the summary court-martial case of W. J. 
 Stookey, chief commissary steward on the 
 receiving ship at Mare Island, in 1908, Mate 
 G. Johnson was recorder of the court. Accused 
 applied to have the proceedings set aside on 
 the ground that Mate Johnson was not an 
 officer, and that article 27 of the Articles for 
 the Government of the Navy (sec. 1624, R. S.), 
 required an "officer" to act as recorder; that 
 the court-martial was therefore illegal.- The 
 point was decided that Mate Johnson was an 
 officer, and that the court was therefore legal. 
 Accused was discharged pursuant to sentence. 
 (File 26287^7, Aug. 22, 1908; see also file 
 4856-15, May 14, 1913, letter from captain of 
 the yard, navy yard. Mare Island, Cal.) 
 
 "Mate Johnson has acted as recorder of sev- 
 eral courts-martial recently, and performed this 
 duty for a long time on the receiving ship, which 
 would seem to establish the point definitely." 
 (File 4856-15, May 14, 1913, letter from captain 
 of the yard, navv yard, Mare Island, Cal.) 
 
 Article R-4512 (l),_Navy Regulations, 1913, 
 provides that certain "officers," including 
 mates on duty at certain stations or any such 
 "officers" on special duty or on detached 
 service on shore, are entitled to commutation 
 for quarters, etc. 
 
 Certain mates held to be both " ofi&cers 
 of the Navy " and " enlisted men." — 
 Mates who were in the Navy on August 1, 1894, 
 are officers of the Navy for the purpose of re- 
 tirement, although enlisted men, and entitled 
 as such to discharge upon expiration of en- 
 listment. A person can, under the provisions 
 of sections 1409 and 1410, Revised Statutes, 
 be at the same time an officer of the Navy and 
 an enlisted man. (26 Op. Atty. Gen., 433.) 
 
 " The status of mates in the Navy is 
 in the highest degree anomalous. — They 
 have been considered as petty officers, ap- 
 pointed from the enlisted force, and regarded 
 as enlisted men. This view has been re- 
 enforced by an opinion of the Attorney General, 
 dated July 22, 1907, in which it is held that a 
 man who was enlisted for service in the Navy 
 for a period of four years and was appointed 
 as mate and continued to serve as such after 
 the expiration of his term of enlistment without 
 receiving any discharge, may have hia appoint- 
 ment as mate revoked and be permitted to 
 reenlist, with the benefit of continuous service. 
 This condition has, however, been complicated 
 by a later opinion, given October 15, 1907, 
 in which the Attorney General holds that 
 certain mates whose names are borne on the 
 retired list of the officers of the Navy, having 
 been placed there in accordance with the 
 statute approved August 1, 1894 (28 Stat., 212), 
 are entitled to advancement in accordance 
 with the provisions of the act of June 29, 
 1906 (34 Stat., 554), to the lowest grade of 
 warrant officers. Hence, for the purposes of 
 
 retirement, certain mates are considered as 
 officers * * *. Also, it may be stated that, 
 although mates are considered as enlisted men 
 for the purposes of discharge and reenlistment, 
 yet they are debarred from the benefits of the 
 additional pay allowed other enlisted men for 
 succeeding reenlist me nts. They are usually 
 appointed from chief petty officers having long 
 and creditable records, who may receive a 
 maximum pay of approximately * * *, but 
 upon appointment as mate their pay drops 
 immediately to * * *, notwithstanding the 
 greater responsibilities of the position." (File 
 3031-32, Feb. 12, 1908.) 
 
 There are no similar grades in the Army to 
 those of warrant officers and mates. (File 3031- 
 40, Mar. 11, 1908.) [By act of July 9, 1918 (40 
 Stat., 881), the grades of master, first mate, 
 second mate, chief engineer, and assistant en- 
 gineer were established in the Army Mine 
 Planter Service of the Coast Artillery Corps 
 of the Regular Army, "who shall be warrant 
 officers ajipointed by and holding their offices 
 at the discretion of the Secretary of War." 
 By act of June 4, 1920 (41 Stat., 761), the ap- 
 pointment was authorized of not more than 
 1,120 warrant officers, including band leaders.] 
 
 Retirement of mates -who -were in, the 
 service August 1, 1894. — There was doubt 
 whether the law relating to the retirement of 
 officers of the Navy [sees. 1443-1455, 1588, R. 
 S.], applied to any but commissioned officers, 
 but this doubt was, by the Navy Department, 
 resolved in 'favor of warrant officers, which con- 
 struction was confirmed by the Supreme Court 
 in Brown v. U. S., 113 U. S., 568. However, 
 it was never held to apply to mates; and in 
 order that the 28 officers then serving as mates 
 might have the benefit of its provisions, the act 
 of August 1, 1894 (28 Stat., 212), was passed. 
 This act went no further than merely to extend 
 the provisions of the retirement law to these 
 mates, and had not the effect of promoting them 
 on retirement to the rank and pay of retired 
 warrant officers, but entitled them to be placed 
 on the retired list with the rank of mate and 
 three-fourths the sea pav of that grade. (27 
 Op. Atty. Gen., 334.) 
 
 Doubtless "warrant officers" were specially 
 mentioned in the act of August 1, 1894, because 
 they were the only noncommissioned officers to 
 whom the statute had been construed to apply, 
 and it was intended thereby to emphasize the 
 purpose that section 1588, Revised Statutes, was 
 to be just as applicable to these mates as to 
 warrant officers, by entitling them to three- 
 fourths of the pay of their grade, and not to 
 confer upon them on retirement the retired pay 
 of an advanced grade. Furthermore, this act 
 was thus construed by the Navy Department 
 ever since its passage, which fact would be 
 controlling in case of doubt. (27 Op. Atty. 
 Gen., 334.) 
 
 Prior to the act of August 1, 1894, mates had 
 not enjoyed the privilege of retirement. The 
 "law regulating the retirement of warrant 
 officers," which by the terms of this act was to 
 be construed to apply to certain mates, is con- 
 tained in sections 1443-1455, Revised Statutes. 
 (See Brown v. U. S., 18 Ct. Cls., 537; 113 U. S., 
 568.) The retired pay of officers of the Navy at 
 the time of the enactment of this law was fixed 
 
 519 
 
Sec. 1408. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 by section 1588 of the Revised Statutes. Were 
 the question a new one, it wouUl still seem 
 phiin that the purpose of the act of 1894 was 
 merely to extend to mates the same privilege 
 of retirement, with three-fourths of their sea 
 pay, that was enjovetl by warrant officers of 
 the Navn^. (Kle 26"255-14, May 4, 1909.) 
 
 Retii-ement of mates who served during 
 the Civil War. — The mates who were in the 
 service on August 1, 1891, were place<l by the 
 act of that date on the same footing as warrant 
 officers for purposes of retirement; and when 
 such mates had creditable Civil War service, 
 they are entitled, in the discretion of the Presi- 
 dent, by and with the advice and consent of 
 the Senate, to the benefit of the advancement 
 provided in the case of retired officers under the 
 circumstances enumerated in the act of June 
 29, 1906 (34 Stat., 554). ^^^ule the effect oi 
 such advancement will not be to place them in 
 a different grade, they will obtain the rank and 
 retired pay belonging to the next higher grade, 
 being that of the lowest grade of warrant officers. 
 (26 Op. Atty. Gen., 433.) 
 
 The retired pay of a mate in the Navy, 
 whether retired under section 11 of the Navy 
 personnel act of March 3, 1899 (30 Stat., 1007), 
 or under the act of June 29, 1906 (34 Stat., 554), 
 is the retired pay of a warrant officer with the 
 same length of previous service, which is three- 
 fourths of the sea pay of such officer. (26 Op. 
 Atty. Gen., 599.) 
 
 Tiie only mates who have the benefits of re- 
 tirement with the rank and retired pay of war- 
 rant officers, are those who were in the service 
 at the time of the passage of the act approved 
 August 1, 1894, and who had creditable Civil 
 War service in accordance with the terms of the 
 act of June 29, 1906 (34 Stat., 554). (File 
 3031-38, Mar. 6, 1908.) 
 
 Where a mate was retired by reason of age, in 
 accordance with the act of August 1, 1894, but 
 was not on such retirement advanced in rank 
 on account of Civil War service, in accordance 
 with section 11 of the Navy personnel act of 
 March 3, 1899 (30 Stat., 1007); and thereafter 
 his retirement was corrected in conformity with 
 the Attorney General's opinion (26 Op. Atty. 
 Gen., 433) above noted: Held, that he should 
 be given the advancement from the date of his 
 retirement (September 26, 1899) and not from 
 the date of the Navv Department's letter to 
 him of November 26, 1907. (26 Op. Atty. 
 Gen., 599.) 
 
 Mates who were in the service on August 1, 
 1894, were entitled to retirement by act of 
 that date under the following circumstances: 
 (a) After 40 years' service; (6) upon reacliing 
 the age of 62 years; (c) for physical disability 
 incurred in line of duty (file 3031-40, Mar. 11, 
 1908). By section 17 of the Navy personnel 
 act of March 3, 1899 (30 Stat. 1008), provision 
 was made for the retirement of enlisted men, 
 upon their own ap])lication, after thirty years' 
 service. This law was applicable to mates who 
 were not already entitled to retirement, under 
 laws relating to oflicers. [See cases noted be- 
 low.] On March 31, 1899, a mate (one of those 
 in the service on Aug. 1, 1894) was, upon his 
 own application, placed upon the retired list 
 in accordance with section 17 of the Navy 
 personnel act, the Navy Department deciding 
 
 that he was entitled to the benefits of retire- 
 ment aa an enlisted man after thirty years' 
 service, although he could not otherwise have 
 i)een retired (as an officer) until April 16, 1902, 
 the date on which he would have attained the 
 age of 62 years. Thereafter it was contended 
 by this mate that he was erroneously retired by 
 the Navy Department under the law relating 
 to enlisted men, and was entitled to retirement 
 under the laws relating to warrant officers, 
 which would give him the retired pay of 
 advanced rank on account of civil war service: 
 Held, that his contention should be sustained, 
 and his retirement corrected so as to show him 
 retired with the rank and retired pay of the 
 next higher grade, namely, that of a warrant 
 officer having twelve years' service, in accord- 
 ance with the act of August 1, 1894, and sec- 
 tion 11 of the Navy personnel act of March 3, 
 1899, and that he should be given the benefit 
 of such increased rank and pay from April 16, 
 1902, the earliest date on whicli he could have 
 been retired under the laws relating to officers. 
 By accepting the erroneous decision of the 
 Navy Department, this mate did not waiv^e or 
 forfeit any legal right which he had to be 
 retired otherwise. (26 Op. Atty. Gen., 615; 
 27 Op. Atty. Gen., 66.) 
 
 The mates held by the Attorney General to 
 be entitled to the rank and pay of "the lowest 
 grade of warrant officer," under the act of June 
 29, 1906 (34 Stat., 554), should be nominated 
 to have the "rank and retired pay of a warrant 
 officer in the Navy," and not to have the rank 
 and retired pay of any particular grade of war- 
 rant officer, inasmuch as all warrant officers 
 are on the same footing as relates to rank, pay, 
 and allowances. (File 3031-21, Nov. 20, 
 1907.) 
 
 The nomination of a deceased mate, in whose 
 case the President approved a recommenda- 
 tion that he be advanced one grade under the 
 act of June 29, 1906 (34 Stat.. 554), but who 
 died after such approval but prior to nomina- 
 tion, should read in the usual form, with the 
 addition thereto of the word "died," with the 
 date on which death occurred. (File 3031-21, 
 Nov. 20, 1907; see also 25 Op. Atty. Gen., 
 312, noted under sec. 1458, R. S., "Death of 
 officer before promotion complete.") 
 
 Retirement of mates as enlisted men. — 
 Mates rated as such since August 1, 1894, are 
 entitled to retirement under the provisions of 
 an act of Congress approved ]\Iarch 2, 1907 (34 
 Stat., 1217), providing for the retirement of 
 enlisted men after thirty years' service. (File 
 3031-17, Sept. 13, 1907.) 
 
 A mate whose rating as such was subsequent 
 to the passage of the act of August 1, 1894 (28 
 Stat., 212), is an "enlisted man" within the 
 meaning of the act of March 2, 1907 (34 Stat., 
 1217), providing for the retirement of enlisted 
 men of the Army, Nav>% and Marine Corps. 
 The rating of an enlisted man as mate did not 
 discharge him from his enlistment, and the 
 term "enlisted man" in the general sense in 
 which it is used in the above act is broad 
 enough to bring him within its provisions. 
 (18 Comp. Dec, 575.) 
 
 Mates may be retired after thirty years' serv- 
 ice under the acts of IMarch 3, 1899, section 17 
 (30 Stat., 1008), and March 2, 1907 (34 Stat., 
 
 520 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1408. 
 
 1217); there is no restriction as to age. (File 
 3031-38, Mar. 6, 1908.) 
 
 The pro\dsions of the Revised Statutes relat- 
 ing to the retirement of commissioned officers 
 (sees. 1448-1455) have been held to apply to 
 warrant officers; but in order that they might 
 apply to mates who were in the service on 
 August 1, 1894, a special act approved on that 
 date was required. Mates who were not in 
 the service on that date were not as such eli- 
 gible to retirement until the passage of the act 
 of March 3, 1899, section 17 of which provided 
 for the retirement of enlisted men or appointed 
 petty officers after thirty years' service. The 
 manner of computing the 30 years' service was 
 somewhat modified by an act approved June 
 22, 1906, the pro\T.sions of which are embodied 
 in the act of March 2, 1907 (34 Stat., 1217). 
 The act of 1899 provides specially for the retire- 
 ment of enlisted men and appointed petty 
 officers; the act of 1907, which has been held 
 to apply to mates, refers to enlisted men, with 
 no mention of officers or petty officers. Com- 
 missioned and warrant officers were obviously 
 not entitled to thirty-year retirement by the 
 language of the act of 1899 as modified by the 
 act of 1907, and did not become entitled thereto 
 until the act of May 13, 1908. (File 3031-57, 
 June 25, 1908.) 
 
 Inasmuch as retirement for enlisted men and 
 appointed petty officers after thirty years' 
 service is covered in prior acts which specific- 
 ally refer to such persons, and as it has already 
 been held that mates are eligible to retirement 
 thereunder, it must be held that the words "an 
 officer of the Navy," in the thirty-year retire- 
 ment clause of the act of May 13, 1908, did not 
 include mates appointed since August 1, 1894. 
 Accordingly held that such mates may be re- 
 tired in conformity with the laws relating to 
 enlisted men, but may not retire as officers 
 under the thirty-year retirement clause in the 
 act of May 13, 1908; and that such mates may 
 not on retirement be given the rank of the next 
 higher grade on account of Civil War service, 
 as provided for officers by the act of June 29, 
 1906. (File 3031-57, June 25, 1908.) 
 
 Waiver of retirement privileges. — A 
 mate appointed since August 1, 1894, but who 
 had service as an enlisted man during the Civil 
 War, not being entitled to retirement with the 
 rank of the next higher grade, as authorized by 
 law for commissioned and warrant officers 
 having Civil War ser\ace, may be appointed 
 a boatswain shortly before retirement on con- 
 dition that, in consideration of said appoint- 
 ment and his retirement as boatswain, he 
 waive his right to retirement with the rank of 
 chief boatswain, to which, upon appointment 
 as boatswain, he would legally become entitled 
 on account of his Civil War service. (File 
 3031-57, July 31, 1908, case of Mate Thomas G. 
 McDonough, appointed a boatswain in the 
 NaA^ Aug. 6, 1908, and retired as boatswain 
 Feb. 6, 1909, upon his own application after 
 30 years' service. Compare U. S. v. Andrews, 
 240U. S.,9q.) 
 
 Bj accepting retirement, under an erroneous 
 decision of the Xavy Department, with a lower 
 rank and rate of pay than that to which he was 
 legally entitled, a mate did not waive or forfeit 
 any legal right which he had to be retired other- 
 
 wise; and his retirement should be corrected, 
 retroactively, so as to confer upon him the 
 higher rank and pay to which he was entitled. 
 (26 Op. Atty. Gen., 615; 27 Op. Atty. Gen., 66, 
 noted more fully above, under "Retirement of 
 mates who served during the Civil War.") 
 
 Pay and allowances of mates. — The pay 
 of mates is fixed by law; those in the servdce 
 August 1, 1894, by the act of that date (28 Stat., 
 212); those appointed since, by section 1556 of 
 the Revised Statutes. When a man is appoint- 
 ed a mate his pay_ does not depend upon his 
 length of service, it merely depends upon the 
 character of his duty — whether at sea, on shore, 
 or on leave, or waiting orders; he receives no 
 increase for longevity, as do the warrant and 
 other officers. (File 3031-40, Mar. 11, 1908. 
 See also 4 Comp. Dec, 124. The pay of all 
 mates was increased 25 per cent by act of May 
 13, 1908, 35 Stat., 128.) 
 
 Although mates are considered as enlisted 
 men for the purjjoses of discharge and reenlist- 
 ment, yet they are debarred from the benefits 
 of the additional pay allowed other enlisted 
 men for succeeding reenlistments. They are 
 usually appointed from chief petty officers 
 having long and creditable records, whose pay 
 upon appointment as mate may immediately 
 be reduced, notwithstanding the greater respon- 
 sibilities of the position. (File 3031-32, Feb. 
 12, 1908.) 
 
 The pay of an enlisted man as mate begins on 
 the date of his rating as mate, or on the date 
 such rating is made to take effect, without re- 
 gard to the date of the administering to him of 
 an oath for the performance of his duties as such ; 
 his rating is not an appointment, but an order 
 which he must obey, and which he has no" 
 choice but to accept. (13 Comp. Dec, 514.) 
 
 "^Tiere a mate of the Navy, upon being honor- 
 ably discharged while serving as such after the 
 expiration of the term of his enlistment, reen- 
 lists in the rating of mate within four months 
 from such discharge, he is entitled to the four 
 months' gratuity pay provided by section 1573, 
 Revised Statutes, as amended by act of March 
 3, 1899, computed on the pay he was recei\dng 
 at the time he was discharged. (14 Comp. Dec, 
 457; file3031-19, Oct. 25, 1907; Comp. Dec, Feb. 
 27, 1908, file 3031-35, 84 S. and A. Memo., 589.) 
 
 Mates in the Navy are petty officers, and their 
 pay being specifically fixed by section 1556 of 
 the Re\dsed Statutes, and any additional pay 
 or allowance thereto being prohibited by sec- 
 tion 1558 of the Re\dsed Statutes, they are not 
 entitled upon reenlistment within the provi- 
 sions of section 1573 of the Revised Statutes, as 
 amended by act of March 3, 1899, in the rating of 
 mates, to theincrease of pay per month pro\aded 
 therein for enlisted men who reenlist within 
 such pro^dslons. (14 Comp. Dec, 457; see also 
 9 Comp. Dec, 600; Comp. Dec, Feb. 27, 1908, 
 file 3031-35, 84 S. and A. Memo., 589.) 
 
 Mates of the Navy being specifically excepted 
 from the pro\dsions of section 1569 of the Re- 
 vised Statutes, under authority of which the 
 extra compensation for good-conduct medals and 
 bars, seamen gunners' certificates, and petty 
 officers' certificates, is prowled, they are not 
 entitled to such extra compensation. (14 
 Comp. Dec, 457; see also 9 Comp. Dec, 600, 
 and file 3031-7, Jan. 12, 1907.) 
 
 521 
 
Sec. 1408. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 Mates are not entitled to one-fourth addi- 
 tional pay for detention beyond expiration of 
 enlistment, as pnndded by section 1422, Re- 
 vised Statutes, as amended, for the reason that 
 this 18 additional pay to that specifically pro- 
 \'ided by eet^tion 1556, Rexdsea Statutes, and 
 therefore prohibited by section 1558, Revised 
 Statutes. Also, the detention of mates who 
 were not discharged upon expiration of enlist- 
 ment, was not such a detention in the service 
 as contemplated by the statute. (14 Comp. 
 Dec., 457.) 
 
 A mate honorably discharged on account of 
 the expiration of his enlistment, while serving 
 after the expiration of the term of his enlist- 
 ment, is entitled to travel allowance on dis- 
 charge provided for enlisted men bv act of 
 June 29, 1906 (34 Stat., 555). This is not pay, 
 but a provision to assist enlisted men of the 
 Navy to return to their homes or places where 
 the Government took them into the service; 
 is a beneficial statute, and following the rule 
 in such cases, the Comptroller has been liberal 
 in construing it and other similar provisions 
 for enlisted men of the military service. (14 
 Comp. Dec, 457.) 
 
 Mates, although their pay is fixed by law, 
 instead of by the President, are in other re- 
 spects entitled to the emoluments of petty 
 officers, among which are rations. The ex- 
 ception of mates from section 1569, Revised 
 Statutes, merely indicates that Congress, 
 having already fixed their pay, such pay 
 need not be fixed by the President. But they 
 are still within the exception of "petty ofiicers, 
 seamen, and ordinary seamen attached to 
 receiving ships," who are inferentially allowed 
 a ration by section 1579, and the exception 
 of petty officers, from those who are not en- 
 titled to rations under section 1579, indicates 
 that as such they are entitled to a ration. 
 (U. S. V. Fuller, 160 U. S., 593.) 
 
 In the case of United States v. Fuller (160 
 U. S., 593), affirming the judgment of the Court 
 of Claims (30 Ct. Cls., 108), it was held that 
 "mates are petty officers, and as such entitled 
 to rations or commutation therefor." The 
 claimant, therefore, being a petty officer, 
 clearly has a right to recover the commutation 
 price of a Navy ration while 8er^^Jlg as a mate 
 on board a receiving ship. (Baxter v. U. S., 
 32 Ct. Cls., 75; 12 Comp. Dec, 728.) 
 
 The status of a mate as to rations, or com- 
 mutation thereof, while serving at sea, is not 
 affected by his discharge and reenlistment in 
 the rating of mate. (Comp. Dec, Feb. 27, 
 1908, file 3031-35, 84 S. and A. Memo., 589.) 
 
 \\Tiile on shore duty a mate would be en- 
 titled, while performing such duty, to com- 
 mutation of quarters, provided he did not 
 occupy public quarters. (Comp. Dec, Feb. 
 27, 1908, file 3031-35, 84 S. and A. Memo., 589.) 
 
 The act of March 3, 1901 (31 Stat., 1107), pro- 
 vided under the head of Pay of the Navj^, for 
 ' ' commutation of quarters for officers on shore, 
 not occupying public quarters, including 
 * * * mates, who shall hereafter receive 
 the same commutation for quarters as second 
 lieutenants of the Marine Corps." (12 Comp. 
 Dec, 728.) 
 
 ' For other references to the pay of mates, see 
 note to section 1556, Revised Statutes. 
 
 Mates eligible for appointment and pay- 
 as Navy mail clerks. — "A mate being an 
 enlisted man is eligible for selection and desig- 
 nation as Navy mail clerk under the act of 
 May 27, 1908" (35 Stat., 417). It has been 
 held that, as the pay of mates is fixed by sec- 
 tion 1556, Revised Statutes, they are not en- 
 titled to any additional pay as enlisted men or 
 as mates, by reason of section 1558, Revised 
 Statutes. The prohibition in the latter section, 
 however, applies only to compensation for 
 performance of duties as mate, and the addi- 
 tional allowances refer to such allowances for 
 duties required by the enlistment and rating 
 as mate. Navy mail clerks and assistant Navy 
 mail clerks perform new and additional duties, 
 which are not those of enlisted men or of mates, 
 and were not contemplated by the prohibition 
 contained in_ section 1558. Accordingly, held, 
 that a mate is entitled to receive the pay pro- 
 vided for Navy mail clerk, when duly desig- 
 nated as such, in addition to his pay as mate. 
 (Comp. Dec, Oct. 21, 1908, 92 S. and A. Memo. 
 870.) 
 
 Revocation of appointment. — The ap- 
 pointment of a mate should not be revoked, 
 unless requested by the holder. If so re- 
 quested, it may_ be revoked, in which case 
 he would be considered as holding a permanent 
 appointment in the rating from which last 
 advanced, and if discharged in that rating, 
 should be reenlisted therein. (File 3031-19, 
 Oct. 25, 1907.) 
 
 Mates cannot legally be rated from men 
 enlisted for less than two years. — To en- 
 title an enlisted man to the pay pro\dded by 
 section 1556 of the Revised Statutes for mates, 
 he must have been rated during an enlistment 
 of not less than two years. A man rated as mate 
 on August 24, 1897, while serving in an enlist- 
 ment of one year, was not entitled to the pay of 
 mate on that • rating. He was actually dis- 
 charged from his enlistment on December 13, 
 1897, and served thereafter under his appoint- 
 ment as mate, without reenlistment, until 
 November, 1907. As he was recognized by 
 the Navy Department as a mate and performed 
 the duties of a mate, he may be considered as a 
 de facto mate during that service (Aug. 24, 
 1897 to Nov., 1907); and having received the 
 pay provided by law for a mate, he is, for the 
 reasons stated in the case of Badeau v. U. S. 
 (130 U. S., 439), entitled to retain it. (Comp. 
 Dec, Jan. 30, 1908, 83 S. and A. Memo., 565, 
 566; see also note to sec. 236, R. S., under VIII 
 (C), "Mistake of law.") 
 
 Appointment as wrarrant ofla.cers. — 
 Mates appointed to the grades of warrant 
 officers are not "promoted" to said grades, but 
 are "appointed" thereto, in the same manner 
 as any enlisted man of the Nai'y might have 
 been appointed. The grade of boatswain is 
 not the next higher grade above the rating of 
 mate, any more than is any other warrant 
 grade, or in fact any other corps of the Navy. 
 (File 3031-12, July 10, 1907. For other cases 
 see note to sec 1458, R. S., under " 'Promotion' 
 and 'appointment' compared.") 
 
 The Navy Department does not deem it de- 
 sirable to make an exception in the case of a 
 mate who makes application to take the exami- 
 nation for boatswain in the Navy, and who, at 
 
 522 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1409. 
 
 the date of the next examination, would be 
 about 9^ years above the maximum age pre- 
 scribed for candidates for that grade. (File 
 3031-55, June 16, 1908; see note to sec. 1405, 
 R. S., under "Ages of candidates for appoint- 
 ment.") 
 
 A mate may be appointed a boatswain a few 
 months before he becomes eligible for retire- 
 ment, on condition that he waive his right to 
 
 retirement with the rank of chief boatswain on 
 account of civil war service, to which he would 
 become entitled upon his appointment as 
 boatswain. (File 3031-57, July 31, 1908, case 
 of Thomas G. McDonough, appointed a boat- 
 swain in the Navy Aug. 6, 1908, and retired 
 as boatswain Feb. 6, 1909, upon his own appli- 
 cation after 30 years' service. Compare U. S. 
 V. Andrews, 240 U. S.. 90.) 
 
 Sec. 1409. [Mates and warrant officers; not discharged from enlistment.] 
 The rating of an enlisted man as a mate, or his appointment as a warrant officer, 
 shall not discharge him from his enlistment. — (17 May, 1864, c. 89, s. 3, r. 13, 
 p. 79. 3 Mar., 1865, c. 124, s. 3, v. 13, p. 539.) 
 
 Historical note. — Section 3 of the act of 
 March 3, 1865 (13 Stat., 539), provided "that 
 hereafter mates may be rated, under authority 
 of the Secretary of the Navy, from seamen and 
 ordinary seamen who have enlisted in the naval 
 service for not less than two years, and such 
 rating of an enlisted man, or his appointment 
 as an officer, shall not discharge him from his 
 enlistment." The substance of this section 
 was embodied in sections 1408 and 1409 of the 
 ReA-ised Statutes, the portion relating to the 
 appointment of an enlisted man as an "officer" 
 being interpreted to mean his appointment as a 
 "warrant officer." (9 Comp. Dec, 600.) 
 
 Sec. 1409 does not apply to appoint- 
 ments as commissioned officers. — A man 
 while ser\'ing an enlistment as chief yeoman was 
 appointed paymaster's clerk and then giA-en an 
 appointment as assistant paymaster. Beld, that 
 the continuity of his service was broken by his 
 acceptance of a commission; that his enlistment 
 was as effectually terminated by his appoint- 
 ment as assistant paymaster as though he had 
 served out the term for which he enlisted; and 
 that "it certainly can not be ruled that an ajj- 
 pointment as a commissioned officer causes no 
 separation from an enlisted service under which 
 the appointee was serving, and that no break 
 in the enlisted serAdce would be occasioned if 
 the service as commissioned officer continued 
 for four months." (Comp. Dec, Nov. 29, 
 
 1899, 11 MS. Comp. Dec, 628; and Feb. 15, 
 
 1900, 12 MS. Comp. Dec, 547; see also Comp. 
 Dec, June 24, 1903, 27 S. and A. Memo., 222.) 
 
 Ser\ice as a commissioned officer is incom- 
 patible with service as an enlisted man. 
 (Comp. Dec, June 24, 1903, 27 S. and A. 
 Memo., 222.) 
 
 The act of May 22, 1917 (40 Stat., 84), con- 
 templates the preservation of the enlisted 
 status of men temporarily appointed to warrant 
 and commissioned rank under that act; other- 
 wise there would be nothing to which they 
 could "revert" upon the termination of their 
 temporary appointment as required by section 
 7 of said act. Accordingly, there is no legal 
 objection to providing that enlisted men, tem- 
 porarily appointed warrant or commissioned 
 officers, shall not be discharged from their en- 
 listments upon the acceptance of such appoint- 
 ments; and, if their enlistments expire while 
 holding under temporary appointments as war- 
 rant or commissioned officers they shall not be 
 discharged until the termination of their tem- 
 porary appointments. Upon reverting to his 
 
 former status, if his enlistment has expired 
 while holding such temporary appointment, 
 the man will immediately be given his dis- 
 charge and final settlement. The act thus 
 ajiplied creates the apparent anomaly of a per- 
 son occupying the dual status of officer and en- 
 listed man, but such a status is not unknown to 
 the naval service (citing sec 1409, R. S.). 
 Withholding their discharges and final settle- 
 ments under such circumstances does not 
 amount to detaining them in the service; by 
 their acceptance of such appointments under 
 the conditions imposed by the statute they are 
 deemed to have voluntarily waived their right 
 to discharge upon the expiration of their terms 
 of enlistment and to have accepted all of the 
 conditions imposed by the_ statute, including 
 the recjuirement as to reverting upon the termi- 
 nation of their temporary appointments. (File 
 7657-445, June 21, 1917.) 
 
 Applies only to mates and warrant 
 officers. — The Navy Regulations, 1900, article 
 861, provided: "^^Tien enlisted men accept 
 * * * appointments as paymasters' clerks 
 their enlistments terminate on the date of tak- 
 ing the oath under such * * * appoint- 
 ments, and ser\dce thereunder for a longer 
 period than four months debars them from all 
 benefits of previous enlisted service in com- 
 puting increased pay under subsequent enlist- 
 ments." An enlisted man who accepted an 
 appointment as paymaster's clerk while this 
 regulation was in force thereby terminated his 
 eiilistment. Section 1409 of the Revised 
 Statutes is not applicable to this case, as the 
 claimant, a paymaster's clerk, is neither a mate 
 nor warrant officer. (10 Comp. Dec, 529. 
 Note: The title "paymaster's clerk" wag 
 changed to ' ' pay clerk ' ' and the status of pay 
 clerks changed to that of warrant officers, by 
 act Mar. 3, 1915, _ 38 Stat., 942, which also 
 created a subordinate grade designated as 
 "acting pay clerk" and the commissioned 
 grade of chief pay clerk. The acceptance of 
 an appointment as acting pay clerk ipso facto 
 terminates the appointee's enlistment. File 
 26254-2020:4, Mar. 15, 1918; C. M. 30, 1918, 
 p. 24.) 
 
 May be extended by regulations to in- 
 clude others than mates and warrant 
 officers. — The NaAy Regulations, 1896, article 
 821, provided that "an enlisted man rated as a 
 mate or appointed a warrant officer or clerk is 
 not thereby discharged from his enlistment." 
 This regulation was a repetition of section 1409 
 
 54641°— 22- 
 
 523 
 
Sec. 1409. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 with the adclltion of the word "clerk." A 
 di'i):ir(inontal rcj^ulation has the force of law 
 when not contrary to })opiti\e law, and thore is 
 no such law that would nes^ti\e the regulation 
 quoted. Accordingly, held that an enlisted 
 man apiiointed a paymaster's clerk while thia 
 regulation waa in force, and who continued to 
 serve out the unexpired portion of his enlist- 
 ment after his appointment as paymaster's 
 clerk was revoked, was continuously in the 
 service as an enlisted man and that there was 
 no break in his enlistment by reason of his serv- 
 ice as temporary paymaster's clerk, but that 
 the service was fully authorized by article 821 
 of the Navy Regulations then in force, and 
 therefore the appellant is entitled to the bene- 
 fits of continuous service authorized by section 
 1573, Revised Statutes, as amended by section 
 16 of the NaA-y personnel act of March 3, 1899 
 (30 Stat., 1008). (Comp. Dec, June 24, 1903, 
 27 S. and A. Memo. , 222. See note to preceding 
 paragraph concerning change in status of pay- 
 master's clerks.) 
 
 Clerical service is not incompatible with 
 service as an enlisted man. Enlisted men are 
 frequently required to perform clerical duties, 
 and in such cases in the Army are entitled to 
 extra pay for such duty. (Comp. Dec, June 
 24, 1903, 27 S. and A. Memo., 222.) 
 
 Regulation can not extend provisions of 
 this section to include other than mates 
 and warrant oflB.cers. — Statutory law can not 
 be amended by regulation, and it is well settled 
 that where certain grants are made, or privileges 
 conferred by statute, such grants or privileges 
 can not be enlarged or extended by regulation 
 to persons or classes to whom they are not ex- 
 tended by the statute. It is not within the 
 power of the executive to write the words "or 
 paymaster's clerks" into section 1409. That 
 would be legislation. The history of the regu- 
 lations shows that the Navy Department former- 
 ly attempted to do this by framing a regulation 
 in the terms of section 1409 except that the 
 words "or clerk" were inserted after the words 
 "warrant officer"; but in a later edition of the 
 regulations this was corrected. The views ex- 
 
 Eressed by the Comptroller of the Treasury in 
 is decision of June 24, 1903 [noted above], are 
 contrary to this conclusion, but nevertheless 
 held, that the power to extend such a statutory 
 provision _ by means of a Navy regulation, 
 although it would be convenient to do so in 
 many instances, does not_ exist; further, held, 
 that the existing regulation, which provides 
 that when enlisted men accept appointments as 
 paymaster's clerks their enlistments terminate 
 on the date of taking the oath under such ap- 
 pointments, can not be waived in an individual 
 case, because, while any Navy regulation may 
 be annulled, amended, suspended, or waived 
 by the same power that framed it in the first 
 instance, this rule is sul)ject to the proviso that 
 such action must not be in conflict with any 
 statute. (File 8C27-03, Dec. 30, 1903; see, 
 generally, note to sec. 161, R. S.) 
 
 Revocation of warrant officer's ap- 
 pointment. — The President has no power to 
 revoke the warrant of a boatswain in the Navy 
 and discharge him from tlie service, without the 
 sentence of a court-martial, in disregard of 
 
 sections 1229 and 1624 (art. 36) of the Revised 
 
 Statutes. (28 Op. Atty. Gen., 325.) 
 
 A boatswain is an oflicer of the NaA^ -within 
 the restrictions of the above sections of the 
 Revised Statutes (1229 and 1624, art. 36), con- 
 cerning dismissal. (28 Op. Atty. Gen., 325; 
 see also 15 Op. Atty. Gen., 635.) 
 
 The tenure of a boatswain's office is fixed by 
 legislation. After it was thus established, it 
 was not within the power of the President to 
 limit it by tlie incorporation in the warrant of 
 the provision that it was to continu3 in force 
 during the pleasure of the President. The 
 revocation of the warrant effects a discharge 
 from the office, and, by a reasonable construc- 
 tion of sec. 1229, a dismissal from service. (28 
 Op. Atty. Gen., 325.) 
 
 The question is not affected by the provisions 
 of section 1409. A warrant officer may, before 
 the term of his enlistment has expired, by the 
 sentence of a court-martial, or by resignation of 
 his office, be returned to the condition of an 
 enlisted man; but there is no statutory authority 
 for the President to relegate to his former in- 
 ferior position a regularly warranted officer, 
 who has been promoted from his place as an 
 enlisted man, for the purpose of discharging 
 him. This is contrary to the spirit, if it is not 
 to the very letter, of the law of section 1229, 
 Revised Statutes. (28 Op. Atty. Gen., 325.) 
 
 "T^Tiile it would be most ' desirable that 
 authority should be given to the President to 
 revoke the commission or warrant of an officer 
 con^'icted of an offense and sentenced to im- 
 prisonment by a civil court, yet no such ex- 
 ception is found in the law to the sweeping 
 provisions of section 1229." (28 Op. Atty. 
 Gen., 325.) 
 
 Revocation of rating as mate. — See note 
 to section 1408, Revised Statutes. 
 
 Reduction of warrant officer to ordinary 
 seaman. — Under article 9 of the Articles for 
 the Government of the Navy (sec. 1624, R. S.), 
 an officer who absents himself from his com- 
 mand without leave may, by the sentence of a 
 court-martial, be reduced to the rating of an 
 ordinary seaman. Inasmuch as such a sen- 
 tence deprives a warrant officer of his position 
 as a warrant officer in the U. S. Navy, and 
 as article 53 (sec 1624, R. S.) provides that 
 no sentence extending to the dismissal of a 
 commissioned or warrant officer shall be carried 
 into execution until confirmed by the President, 
 it is deemed advisable as a matter of policy, 
 although not specifically required by the 
 statute, to submit the record of the general court- 
 martial in such case to the President for con- 
 firmation of the sentence ad j udged . ( File 2625 1- 
 11440, Mar. 30, 1916; C.M.O. 11-1916.) [Inthis 
 case the sentence was confirmed by the Presi- 
 dent April 3,1916; shortly thereafter, the warrant 
 officer thus reduced to ordinary seaman was 
 tried by general court-martial as an ordinary 
 seaman on other charges, sentenced to be dis- 
 honorably discharged from the Navy, and upon 
 approval of the sentence by the Secretary of 
 the Navy it was dulv carried into effect. G. C. 
 M. Rec, No. 31934."J 
 
 Deposit accounts of mates and warrant 
 officers. — Upon the appointment of an en- 
 listed man as a mate, his deposit account should 
 
 524 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1410. 
 
 be treated as thou?:h his enlistment had ex- 
 pired, i. e., he should be paid principal and in- 
 terest to the date of his appointment as mate. 
 (File 16407, July 28, 1903, and 3031-5, Nov. 27, 
 1906, construing act Feb. 9, 1889, sec. 1, 25 
 Stat., 657. Note: These rulings were made 
 before the practice of discharging mates upon 
 expiration of enlistment, as explained in note 
 to sec. 1408, R. S., was commenced.) 
 
 While ser^-ing under an acting appointment 
 as warrant officer, the status of an enlisted man 
 clearly continues as that of an enlisted man; 
 he must qualify for a permanent appointment 
 by probationary service, or otherwise would be 
 discharged from the ser\dce as an enlisted 
 man. He should accordingly, while serving 
 under such acting appointment, be permitted 
 to make deposits, and to draw interest on de- 
 posits already made. Upon permanent ap- 
 pointment his deposit account should be 
 treated as though his enlistment had expired, 
 that is, he should be paid principal and interest 
 to the date of his appointment, as was held by 
 the Navy Department in the case of mates, be- 
 fore the present practice was commenced of 
 discharging and reenlisting them. (File 26254- 
 2020, June 6, 1916.) 
 
 The act of February 9, 1889 ^25 Stat., 657), 
 provides that deposits may be made by "any 
 enlisted man or appointed petty officer of the 
 Navy." Had it been intended to include 
 warrant officers it would undoubtedly have 
 specifically so pro\dded, as it did with petty 
 officers. Warrant officers are not in practice 
 discharged after a fixed period of service, but 
 their tenure of office is practically for life, 
 unless sooner terminated by resignation, sen- 
 tence of court-martial, or in other exceptional 
 manner. A^Tiile section 1409, Re\-ised Statutes, 
 
 provides that the appointment of an enlisted 
 man as a warrant officer "shall not discharge 
 him from his enlistment," nevertheless, since 
 the act of P^ebruary 9, 1889, does not include 
 warrant officers, it is necessary that upon ap- 
 pointment as such their deposits, made while 
 enlisted men, be returned in the same manner 
 as though discharged; otherwise the men 
 might be deprived of deposits for life. (File 
 26254-2020, June 6, 1916.) 
 
 Warrant officers not regarded as en- 
 listed men. — In the case of an enlisted man 
 appointed as warrant officer, although his ap- 
 pointment does not discharge him from his en- 
 listment, he is not reenlisted upon the expira- 
 tion of his enlistment contract, but continues 
 on under his sole status as warrant officer. He 
 is not regarded as an enlisted man after he gets 
 his warrant, even before the expiration of his 
 enlistment. There is no reason for preserving 
 his enlisted status after he has received his 
 warrant, because he does not at any time, by 
 operation of law, revert to his previous status 
 as an enlisted man. (File 7657^^45, June 21, 
 1917.) 
 
 Discharge and reenlistment of acting- 
 ■warrant oflS.cer. — Inasmuch as section 1409 
 clearly contemplates the concurrence of the 
 status, duties, and obligations of an enlisted 
 man and that of a warrant officer, and in view 
 of the practice of the Bureau of Navigation in 
 the matter, held, that there is no objection to 
 the reenlistment of an acting warrant officer 
 whose term of four years has expired; this ^^ith 
 a view to preserving to the man his continuous 
 service should he fail to be warranted. (File 
 7267-03.) 
 
 Discharge and reenlistment of mates. — 
 See note to section 1408, ReAised Statutes. 
 
 Sec. 1410. [Acting officers; petty officers; secretaries and clerks.] All 
 officers not holding commissions or warrants, or who are not entitled to them, 
 except such as are temporarily appointed to the duties of a commissioned or 
 warrant officer, and except secretaries and clerks, shall be deemed petty 
 officers, and shall be entitled to obedience, in the execution of their offices, from 
 persons of inferior ratings.— (17 July, 1862, c. 204, s. 18, v. 12, p. 610.) 
 
 See 
 
 Acting appointments as pay officers 
 
 section 1381, Revised Statutes. 
 Acting assistant surgeons. See section 1411, 
 
 Revised Statutes. 
 Acting chaplains. See act of June 30, 1914 (38 
 
 Stat., 403). 
 Acting ensigns for engineering duty only were 
 
 authorized by act of August 29, 1916 (39 
 
 Stat., 580). 
 Acting ensigns and acting lieutenants (junior 
 
 grade) in the Navy, and acting second 
 
 lieutenants and acting first lieutenants, 
 
 in the Marine Corps, for aeronautic duty 
 
 only, were authorized bv act of August 29, 
 
 191(3 (39 Stat., 583). 
 Acting flag officers. See sections 1434 and 1464, 
 
 Revised Statutes. 
 Acting machinists. See act of March 3, 1899, 
 
 section 15 (30 Stat., 1007). 
 Acting pay clerks. See act of March 3, 1915 
 
 (38 Stat., 942). 
 Acting -warrant oflB.cers.— The Secretary 
 of the Navy may legally appoint acting gunners 
 
 in the Navy, and the power to make such ap- 
 pointments is strongly implied by section 1410, 
 Revised Statutes. A right to appoint gunners 
 to an undefined extent (see sec. 1405, R. S.) 
 does not conclude against the power to appoint 
 acting gunners also. (15 Op. Attv. Gen., 564. 
 Note: By act July 15, 1870, sec."l3, 16 Stat., 
 334, it was provided "that all acts or parts of 
 acts authorizing the appointment of tem- 
 porary acting officers in the Navy be, and the 
 same are hereby, repealed, except as to as- 
 sistant surgeons.") 
 
 An acting gunner is not, as such, even a 
 petty officer. Accordingly, the laws (sees. 
 1229 and 1624, art. 36, R. S.) making provision 
 as to dismissals of "officers" from the naval 
 service, do not apply to the case of an acting 
 gunner. (15 Op. Atty. Gen., 564.) 
 
 Acting appointments as boatswains, gunners, 
 and carpenters are issued pursuant to Navy 
 Regulations, 1913, article R-3312. Other 
 acting appointments are specifically authorized 
 by laws noted above. 
 
 525 
 
Sec. 1410. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 Acting commissioned officers. — "An of- 
 ficer duly appoinUHi to act in any grade sliall, 
 while serving under such appointment, be 
 entitled to the same command, precedence, 
 and honors as if he held a commisaion in that 
 grade of the etime date as his appointment." 
 (Art. R-1048, Navy Regs., 1913.) 
 
 In accordance with the general custom, 
 acting oiiicerf, both in the Army and Navy, 
 do not hold commissions. (File 13707-38:7, 
 Aug. 20, 1914.) 
 
 "Officers" and " eniisted men" de- 
 fined. — The term "all officers" in sectiqn 1410, 
 Revised Statutes, is a general designation, 
 which includes petty officers. (Muse v. U. S., 
 19 Ct. Cls., 441.) 
 
 Petty officers and warrant officers in the 
 Navv are generally spoken of as officers, and 
 the jlevised Statutes, section 1410, recognizes 
 the usage; but all petty officers are not officers 
 within the sense of the" Constitution or of penal 
 stiitutes. (Muse v. U. S., 19 Ct. Cls., 441; 
 see also note to Constitution, Art. II, sec. 2, 
 clause 2, under "I. Officers of the United 
 States.") 
 
 Within the meaning of the Articles for the 
 Government of the Navy (sec. 1624, R. S.), 
 "unless there be something in the context or 
 subject matter repugnant to or inconsistent 
 with such construction, officers shall mean 
 commissioned and warrant officers; superior 
 officers shall be held to include mates and 
 petty officers of the Navy and noncommis- 
 sioned officers of the Marine Corps, in addition 
 to the officers enumerated." (Naval Courts and 
 Boards, 1917, p. 86.) 
 
 Witliin the meaning of the Articles of War 
 relating to the Army, ' 'unless the context shows 
 that a different sense is intended, * * * the 
 word 'officer' shall be construed to refer to a 
 commissioned officer." (Sec. 1342, R. S., art. 1, 
 as amended by act Aug. 29, 1916, 39 Stat., 650.) 
 
 Within the meaning of the War Risk Insur- 
 ance Act of October 6, 1917 (40 Stat., 401), ' 'the 
 term 'commissioned officer' includes a warrant 
 officer, but includes only an officer in active 
 service in the military or naval forces of the 
 United States. * * * The terms ' man ' and 
 'enlisted man' mean a person, whether male or 
 female, and whether enlisted, enrolled, or 
 drafted into active service in the military or 
 naval forces of the United States, and include 
 noncommissioned and petty officers, and mem- 
 bers of training camps authorized by law." 
 (See sec. 22 of act cited.) 
 
 The Navy consists of officers, warrant officers, 
 petty officers, and seamen. Some of the war- 
 rant and petty officers of the Navy may be 
 officers technically, because appointed by the 
 head of a department; and others may be 
 officers only by courtesy, because they are 
 appointed by the chief of a bureau or the com- 
 mander of a ship; but the two terms, "officers" 
 and "enlisted men" are manifestly used in 
 section 1600, Revised Statutes, to include the 
 four classes of the Navy. (Muse v. U. S., 
 19 Ct. Cls., 441.) 
 
 "There are three sorts of officers known to 
 the Navy, viz., commissioned, warrant, and 
 petty (sec. 1410); and inasmuch as, by section 
 1624, article 30, petty officers may be 'dis- 
 
 charged from the service with bad conduct 
 discharge, ' by order of a summary court-martial, 
 it seems that by 'officers' in article 36 is meant 
 at most only warrant and commissioned 
 officers." (15"0p. Atty. Gen., 635.) 
 
 Cadets at the Naval Academy, by statutory 
 definition^ are not to be included in general 
 in legislation confined to "officers" of the Navy. 
 (15 Op. Atty. Gen., 635; see also Weller v. 
 U. S., 41 Ct. Cls., 324; and see note to sec. 
 1512, R. S.) 
 
 The expression "officers or enlisted men," 
 in a statute relating to longevity, is not to be 
 construed distributively as requiring that a 
 person should be an enlisted man or an officer 
 nominateil and appointed by the President, 
 or by the head of a department, but was meant 
 to include all men in service, either by enlist- 
 ment or regular appointment. (U. S. i'. Hen- 
 dee, 124 U. S., 309.) 
 
 Section 1410, Revised Statutes, which defines 
 who are petty officers, most clearly classes 
 clerks as officers not holding commissions or 
 warrants, and not entitled to them, but still 
 officers of the Navy. Excepting clerks from 
 those "officers" who would otherwise be petty 
 officers, leaves them classed among the officers 
 previously described. (Hendee v. U. S., 22 
 Ct. Cls., 134; affirmed 124 U. S., 309. See 
 note to sec. 1386, R. S., concerning present 
 status of paymasters' clerks.) 
 
 Section 1410, Revised Statutes, classes pay- 
 master's clerks in the Navy among ' 'all officers 
 not holding commissions or warrants, or who 
 are not entitled to them," by excepting them, 
 with others, from such officers as are to be 
 deemed petty officers. (Mouat v. U. S., 22 Ct. 
 Cls., 293, 297; reversed, U. S. v. Mouat, 124 
 U. S., 303.) 
 
 The confused condition of our statute law 
 relating to the officers, warrant officers, petty 
 officers, and seamen of the Navy may be best 
 illustrated by the fact that a paymaster's clerk 
 was held to be an officer and was held not to be 
 an officer by the same court, on the same day, 
 and through the same judge; these decisions, 
 of course, meant that a paymaster's clerk was 
 and was not an officer within the intent of 
 certain statutes, the one decision relating to 
 mileage, the other to longevity pay. (Brown 
 V. U. S., 32 Ct. Cls., 379, 383, citing U. S. v. 
 Mouat, 124 U. S., 303, and U. S. v. Hendee, 
 124 U. S., 309.) 
 
 A clerk to a pay officer, appointed by au- 
 thority of section 1386, Revised Statutes, was 
 not one of the petty officers who, under section 
 1410, Revised Statutes, are entitled to obedi- 
 ence in the execution of their offices from 
 persons of inferior ratings. (Johnson v. Sayre, 
 158 U. S.. 109.) 
 
 For other cases see note to section 1457, 
 Re\'ised Statutes, under "General legislation 
 not applicable to retired officers," and "Retired 
 officers may be included in general legislation." 
 
 Mates are petty officers. — See note to 
 section 1408, Revised Statutes. 
 
 Temporary officers. — There is a class recog- 
 nized in the Navy who are neither commis- 
 sioned nor warrant officers, who perform the 
 duties of the station in which they are tempo- 
 rarily placed. They are generally, though not 
 
 626 
 
The 2^avy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1411. 
 
 nocessarily, styled acting, as acting boatswain, 
 acting gunner, etc., and have an appointment 
 with that title. Temporary appointments are 
 also recognized by section 1410, Revised Stat- 
 utes. The appointment referred to in this sec- 
 tion is confined to "officers not holding com- 
 missions or warrants, or who are not entitled to 
 them." The officer receives no commission 
 or warrant. He is simply appointed to the 
 duties of a commissioned or warrant officer. 
 (28 Op. Atty. Gen., 32.5.) 
 
 Officers holding temporary appointments in 
 the Navy are not either commissioned or war- 
 rant officers, as is recognized by section 1410, 
 Revised Statutes. Legislation, therefore, as to 
 the manner in which such officers are to be 
 cashiered, etc., does not apply in the present 
 case (where party was appointed "an acting 
 master in the Navy on temporary service," 
 and was dismissed from the service by the 
 Secretary of the Navy). The assignment of a 
 reason in the letter of dismissal was-surplusage 
 and perhaps might well have been omitted. 
 (15 Op. Atty. Gen., 560.) 
 
 Mates are not "temporarily appointed to the 
 duties of a commissioned or warrant officer" 
 within the exception to section 1410, Revised 
 Statutes. AVhile the words "acting master's 
 mates," sometimes employed prior to the Re- 
 vised Statutes, might indicate, by the use of 
 the word "acting," a person temporarily ap- 
 pointed to the duties of a master's mate, officers 
 who are recognized by law, and whose pay is 
 fi.xed by a permanent statute, can not be said 
 to be temporarily appointed. (U. S. v. Fuller, 
 
 160 U. S., 593; for other decisions concerning 
 status of mates see note to sec. 1408, R. S.) 
 
 Acting assistant dental surgeons in the regular 
 Dental Corps of the Navy, appointed with a 
 view to permanent as distinguished from tem- 
 porary service, and having the same rights in 
 respect to rank, pay, and retirement as other 
 officers in the Regular Navy, are not temporary 
 officers, but are officers of ' 'permanent tenure " 
 within the meaning of the act of March 4, 1913 
 (37 Stat., 903, since repealed). Strictly speak- 
 ing, the term "permanent tenure" is a misno- 
 mer in any case where applied to officers of the 
 Navy, as all such officers are subject to removal 
 in various ways. The expression was used by 
 Congress as applying to officers whose tenure 
 of office is for 1 if e unless sooner terminated in 
 some authorized manner generally applicable 
 to officers of the Regular Navy. (File 13707- 
 38:9, Sept. 2, 1914.) 
 
 Secretary to the Admiral of the Navy. — - 
 The necessary implication of this section is 
 that secretaries are officers not holding commis- 
 sions or warrants and not entitled to them. If 
 secretaries do not hold commissions and are 
 not entitled to them, it follows that they are 
 not appointed by the President, because ap- 
 pointments by the President are always evi- 
 denced by a commission. Accordingly the 
 appointment of the secretary allowed the 
 Admiral of the Navy, by section 1367, Revised 
 Statutes, does not belong to the President, with 
 the advice and consent of the Senate, but 
 devolves upon the Admiral as one personal to 
 himself. (19 Op. Atty. Gen., 589.) 
 
 Sec. 1411. [Acting assistant surgeons.] The Secretary of the Navy may 
 appoint, for temporary service, such acting assistant surgeons as the exigencies 
 of the service may require, who shall receive the compensation of assistant 
 surgeons.— (3 Mar., 1865, c. 124, s. 6, v. 13, p. 539. 15 July, 1870, c. 295, 
 s. 13, V. 16, p. 334.) 
 
 Amendment to this section was made by act of 
 February 15, 1879, section 2 (20 Stat., 295), 
 which provided "That from and after the 
 passage of this act the Secretary of the 
 Navy shall not appoint acting assistant 
 surgeons for temporary service, as author- 
 ized by section fourteen hundred and 
 eleven, Re\-ised Statutes, except in case 
 of war." 
 By act of May 4, 1898 (30 Stat., 380), it was pro- 
 vided that "The President is hereby au- 
 thorized to appoint for temporary service 
 twenty-five acting assistant surgeons, who 
 shall have the relative rank and com- 
 pensation of assistant surgeons." The 
 words "the relative rank of" as used 
 in sections of the Revised Statutes in de- 
 fining the -rank of officers were amended 
 to read "the rank of" by the Navy per- 
 sonnel act, March 3, 1899, section 7 (30 Stat., 
 1006). 
 See sections 1381 and 1410, Re^-ised Statutes, 
 concerning acting appointments in gen- 
 eral. 
 Appointments by the President and 
 Secretary of the Navy. — See note to Con- 
 stitution, Article II, section 2, clause 2, under 
 "II. Constitutional power of appointment." 
 
 It is universally true that when Congress, in 
 pursuance of its authority under the provision 
 of the Constitution (Art. II, sec. 2, clause 2), 
 sees fit to give the sole power of appointment to 
 the President, it does so by language appro- 
 priate to that end, such as the unqualified 
 phrase, "may appoint." Under such lan- 
 guage the President is vested with power of 
 appointing alone. (23 Op. Atty. Gen., 136; 
 see alfco 22 Op. Atty. Gen., 82.) 
 
 For form of commission which has been issued 
 by the President to officers appointed acting 
 assistant surgeons in the Navy under the act of 
 May 4, 1898, see Nelson v. U. S., 41 Ct. Cls., 157. 
 [In practice, commissions are no longer issued to 
 acting assistant surgeons.] 
 
 Acting assistant surgeons are "oflicers" 
 on the active list of the Navy. — The term 
 "officer or enlisted man " in act of May 13, 1908 
 (35 Stat., 128, since repealed), proi-iding for 
 allowance of death gratuity, includes all per- 
 eons in the service and applies to acting assist- 
 ant surgeons. (File 26543-10, Sept. 11, 1908.) 
 
 An acting assistant surgeon m the Navy, 
 appointed under the act of May 4, 1898, is an 
 officer on the active list of the Navy within the 
 meaning of the death gratuity law of May 13, 
 1908 (since repealed). (15 Comp. Dec, 176.) 
 
 527 
 
Sec. 1411. 
 
 Ft. 2. REVISED STATUTES. 
 
 The Navy. 
 
 Acting assistant surgeons are not 
 officei's of the Regular Navy. — Congress by 
 their legishitidii lia\e n-coirnizcd the distinction 
 between officers in the permanent and tem- 
 porary Borvice in the Navy. Thus by section 
 1370, Re\i8ed Statutes, as amended by the 
 naval approi)riation act of May 4, 1898 (30 Stat., 
 369, 380), in respect to assistant surji;eons, it 
 was provided that "no person shall be ap- 
 pointed assistant surgeon until he has been 
 examined and approved by a board of naval 
 surgeons designated by the Secretary of the 
 Navy, nor who is under twenty-one or over 
 thirty yearsof age, inclusive." That provision, 
 as its language imports, was to guard against 
 the appointment of incompet<;nt surgeons in 
 the Navy, and evidently applies to appoint- 
 ments to be made in the regular or permanent 
 service as contradistinguished from appoint- 
 ments in the temporary 8er\-ice, for in the next 
 succeeding clause or paragraph in the same 
 act is the provision authoriziilg the President 
 "to appoint for temporary service twenty-five 
 acting assistant surgeons, who shall have the 
 relative rank and compensation of assistant 
 surgeons" (without requiring an examination, 
 or fixing any limitations as to age). (Tavlor v. 
 U. S., 38Ct._Cls., 155, 161.) 
 
 Acting assistant surgeons are not "medical 
 officers of the Navy," ^vithin the meaning of 
 the act of July 28, 1892 (27 Stat., 321), but are 
 officers in the temporary service of the Navy, 
 and are not eligible for duty as members of 
 marine examining boards. (File 15229-12; see 
 also file 947 M, June 13, 1910.) 
 
 Acting assistant surgeons are officers merely 
 in the temporary service, and not officers of the 
 Regular Naw. (9 Comp. Dec, 827.) 
 
 The act of February 15. 1879 (20 Stat., 294), 
 provides for a board to make an examination of 
 "the eighteen acting and three acting passed 
 assistant surgeons now in the 8er\'ice, should 
 they desire to present themselves," and au- 
 thorized the President, by and with the advice 
 and consent of the Senate, to appoint those 
 found qualified as assistant surgeons "in the 
 Regular Navy of the United States," and to 
 muster^ out those found not qualified, except 
 that, "in the event of physical disqualifications 
 which occurred in the line of duty, such officer 
 may, upon the recommendation of a retiring 
 board, be placed upon the retired list." (File 
 27231-51:5, July 10, 1915.) 
 
 Again, the act of June 7, 1900 (31 Stat., 684, 
 697), provided that "assistant surgeons under 
 the age of fifty years, appointed for temporary 
 service during the War with Spain, having 
 creditable records, who are now in the Navy, 
 may be given permanent commissions." 
 (Taylor v. U. S., 38 Ct. Cls., 155, 161.) 
 
 [Section 4693, Revised Statutes, providing 
 the classes of persons entitled to pensions speci- 
 fied "any officer " of the Army, Navy, or Marine 
 Corps, disabled "while in the service of the 
 United States and in the line of duty," and in 
 addition specified "any acting assistant or con- 
 tract surgeon," disabled "while actually per- 
 forming the duties of assistant surgeon or acting 
 assistant surgeon wnth any military force in the 
 field, or in transitu, or in hospital." The fact 
 that a pension was granted to a contract surgeon 
 by the express terms of the statute was held 
 
 not to authorize a court to hold that it was 
 because he was an officer in the Army. See 
 Byrnes v. U. S., 26 Ct. Cls., 302.] 
 
 Not eligible for retirement. — Thiit an act- 
 ing assistant surgeon can not legally be retired 
 for physical disability is not open to doubt, as 
 acting assistant surgeons have alwa>-s been 
 appointed and discharged from the Navy eu- 
 tirelv in the discretion of the Executive. (File 
 27231-51 :5, July 10, 1915; see also file 27231-106, 
 Oct. 22, 1917.) 
 
 In no case has any acting assistant surgeon 
 been placed on the retired list, with tlu-ee ex- 
 ceptions which were expressly authorized by 
 the law enacted '"to abolish the Volunteer 
 Navy of the United States," viz, the act of 
 February 15, 1879, section 1 (20 Stat., 294). 
 (File 27231-51:5, July 10, 1915.) 
 
 Except in the cases specifically provided for 
 by the act of 1879, the appointments of these 
 temporary officers have invariably been re- 
 voked for physical disability; their retirement 
 being not only unauthorized by existing law, 
 but contrary to the best interesls of the Navy. 
 Thus, one purpose of the law is to authorize 
 temporary appointments, when required, of 
 doctors who are able to perform the duties for 
 which appointed, regardless of whether they 
 are qualified for the regular Medical Corps. 
 For example, in the present case the officer 
 was appointed an acting assistant surgeon after 
 he had resigned from the regular Medical Corps 
 following his failure to meet the professional 
 requirements for that corps. Similarly, other 
 acting assistant siugeons are appointed who are 
 above the age limit for entering the regular 
 Medical Corps and who could not, therefore, 
 possibly serve the required period before reach- 
 ing the retirement age. Others may be ap- 
 pointed for temporary service who could not 
 qualify physically for the regular corps, the 
 requirements for wliich are naturally more 
 severe because of the privilege of retirement to 
 which its members are entitled. If acting 
 assistant surgeons were legally entitled to re- 
 tirement, the Navy Department could not. in 
 the interest of the Government, recommend the 
 appointment of any applicant unless he pos- 
 sessed all of the requirements necessary for the 
 regular service, and thus one object of the law 
 would be defeated. (File 27231-51:5, July 
 10, 1915.) 
 
 When applicants accept appointments as 
 acting assistant surgeons, they are chargeable 
 with knowledge of the law as above stated, and 
 of the fact that such appointments are revoked 
 when for any reason the appointees are either 
 unable to serve, or are no longer needed. (File 
 27231-51:5, July 10, 1915.) 
 
 Concerning the retirement of acting assistant 
 surgeons for physical disabiUty, " the law on the 
 subject has been re\-iewed at length, and the 
 conclusion reached, after consideration of all 
 matters bearing on the subject, is that an act- 
 ing assistant surgeon of the Navy, appointed 
 for temporary service under the provisions of 
 the act of May 4, 1898, is not eligible for retire- 
 ment on account of phvsical disability. " 
 (File 27231-51:4, June 30, 1915.) 
 
 The Secretary of the Navy declines to re- 
 quest an opinion of the Attorney General as to 
 tlie retirement of acting assistant sturgeons, as 
 
 528 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1411. 
 
 the question has been decided by the Navy 
 Department, and the Attorney General does not 
 possess the power to review the decisions of 
 otiier executive departments. Even when re- 
 quested by the head of a department, the At- 
 torney General has consistently declined to 
 render opinions when it appears that the officer 
 requesting the opinion has already decided the 
 case and requests the Attorney General's 
 opinion merely at the instance of claimants or 
 interested parties who seek to have the existing 
 decision reversed. (File 27231-51:6, July 15, 
 1915.) 
 
 [Note.— The act of May 22, 1917 (40 Stat., 84), 
 authorizing temporary appointments in the 
 Navy, to continue in force "not later than six 
 months after the termination of the present 
 war," provided (sec. 9) that "any person origi- 
 nally appointed temporarily, as provided in 
 this act, shall not be entitled to any rights of 
 retirement, except for physical disability in- 
 curred in line of duty." See also act June 4, 
 1920, section 2 (41 Stat., 834).] 
 
 Revocation of appointment for physical 
 disabiUty. — In view of the fact that acting as- 
 sistant surgeons can not, under the law, be 
 retired for physical disability, the most liberal 
 an-angement which is possible in their case is 
 to direct that the revocation of appointment be 
 made to take effect three months after date; 
 this is, in itself, in the nature of a gratuity, 
 which is not expressly authorized by law, but 
 which, under special circumstances, the Sec- 
 retary of the Navy has decided may legally be 
 regarded as within the range of executive 
 discretion to grant. (File 27231-51:7, July 14, 
 1915; see also 27231-51:5, July 10, 1915.) 
 
 Implied resignation of acting appoint- 
 ment by acceptance of appointment in 
 Regular Navy. — The appointment of an acting 
 assistant surgeon (appointed under the act of 
 May 4, 1898) to the regular service as an 
 assistant surgeon, while still holding a position 
 in the temporary force, operated as a discharge 
 from his former position, and an appointment 
 to the latter; and although the two services are 
 for some purposes to be regarded as continuous 
 the one with the other, yet the position of 
 assistant surgeon held by him in the temporary 
 force is a different and distinct position from 
 that of assistant surgeon in the permanent force 
 to which he was afterwards appointed. (Tavlor 
 V. U. S., 38 Ct. Cls., 155, 159, quoting decision 
 of Comptroller of the Treasury.) 
 
 Imphed resignation of position in Regu- 
 lar Navy by acceptance of acting appoint- 
 ment. — An assistant surgeon failed in his pro- 
 fessional examination for promotion, was sus- 
 pended from promotion in accordance with 
 section 1505, Kevised Statutes, and during the 
 period of such suspension resigned from the 
 Navy. Thereafter he was appointed an acting 
 assistant surgeon in the Navy, which position 
 he later resigned. It was then contended that 
 he was insane at the time of his resignation as 
 an assistant surgeon, and that said resignation 
 was accordingly invalid and should be revoked. 
 Held, that even though he was insane at the 
 time of his resignation as an assistant surgeon the 
 finding of the board of medical examiners 
 established his sanity at the time he was ap- 
 
 pointed an acting assistant surgeon, and his 
 acceptance of such appointment was tanta- 
 mount to the resignation of his former office of 
 assistant surgeon inthe Navy, if he still held 
 such office at the time of his acting appoint- 
 ment. However, the evidence clearly estab- 
 lishes this officer's sanity, inasmuch as he was 
 found physically and mentally qualified by a 
 board of examiners at the time of his appoint- 
 ment as an assistant surgeon, at the time of his 
 examination for promotion, and again at the 
 time of his appointment as an acting assistant 
 surgeon. _ In the absence of evidence definitely 
 establishing as a fact that he was of unsound 
 mind when he resigned as assistant surgeon, his 
 sanity under the circumstances stated must be 
 conclusively presumed; his resignation of that 
 office was accordingly valid, and he can be re- 
 instated in the Navy only by a new exercise of 
 the appointing power. (File 27231-51:1, Feb. 
 24, 1913.) 
 
 Rank and pay of acting assistant sur- 
 geons.— By act of May 4, 1898 (30 Stat., 369, 
 380), the President was authorized "to appoint 
 for temporary 8er\T.ce twenty-five acting assist- 
 ant surgeons, who shall have the relative rank 
 and compensation of assistant surgeons." 
 When this act was passed, the pay of officers in 
 the naval service was generally regulated by 
 section 1556, Revised Statutes. By section 13 
 of the Navy personnel act of March 3, 1899 (30 
 Stat., 1004, 1007), it was provided that com- 
 missioned officers of the line of the Navy and 
 of the Medical and Pay Corps "shall receive 
 the same pay and allowances, except forage, 
 as are or may be provided by or in pursuance of 
 law, for the officers of corresponding rank in 
 the Army." The effect of this act was to in- 
 crease the pay of naval officers generally, and 
 therefore to enhance the pay of assistant sur- 
 geons. (Plummer v. U. S., 224 U. S., 137.) 
 
 The act of June 7, 1900 (31 Stat., 697), raised 
 the rank of assistant surgeons in the Navy by 
 providing that "assistant surgeons shall rank 
 with assistant surgeons in the Army." The 
 effect of tliis act was to give assistant surgeons 
 in the Navy a higher rank — that is, to raise 
 them from the rank of ensign, under section 
 1474, Revised Statutes, to that of lieutenant 
 (junior grade), corresponding with the rank 
 held by assistant surgeons in the Army. 
 (Plummer v. U. S., 224 U. S., 137.) 
 
 The act of 1898 provided for a standard by 
 which to determine the rank and pay of acting 
 assistant surgeons, and that standard is the 
 rank and pay in force at the time when the 
 services of the acting assistant surgeons are 
 rendered ; accordingly h Id that under section 
 13 of the Navy personnel act of March 3, 1899 
 (30 Stat., 1007), and the acts of June 7, 1900 (31 
 Stat., 697), March 2, 1907 (34 Stat., 1167), and 
 May 13, 1908 (35 Stat., 127), the pay of acting 
 assistant surgeons was enhanced and assimi- 
 lated to that of assistant surgeons, and did not 
 remain fixed as regulated by section 1556, 
 Revised Statutes. (Plummer v. U. S., 224 
 U. S., 137.) 
 
 It may not be doubted that the relation 
 which the act of 1898 established between the 
 rank and pay of acting assistant surgeons and 
 assistant surgeons in reason must rest upon the 
 
 629 
 
Sec. 1412. 
 
 Pt.e. REVISED STATUTES. 
 
 The Navy. 
 
 euV>ptantial identity of the services to be ren- 
 dered hv the incumbents of both offices. 
 (Plummer r. U. S., 224 U. S., 137.) 
 
 The pay of actinfj assistant surgeon in the 
 Navy was temporarily increased by specific 
 provision in the act of May 18, 1920, section 1 
 (41 Stat., 602). See note to section 1556, 
 ReN-ised Statutes. 
 
 The act of May 4, 1898 (30 Stat., 380), 
 is permanent legislation in so far as it 
 authorizes the appointment of acting as- 
 sistant surgeons for temporary sei-vice. 
 Although passed at a time when the United 
 Slates was at war with Spain, it is not limited in 
 
 its application to the emergencies then existing 
 or presently arising. If Congress had intended 
 that the authority conferred upon the President 
 to appoint acting assistant surgeons for t(»mpo- 
 rary service should be a temporary grant of 
 power, such limitations would have been ex- 
 pressly inserted. Accordingly, hiid that the 
 power conferred upon the President by said act 
 was not exhausted by its exercise during the 
 emergencies then existing and which led to its 
 passage, but still exists and may be exercised 
 whenever necessity therefor arises. (9 Comp, 
 Dec, 827.) 
 
 Sec. 1412. [Volunteer officers; transfer to Regular Navy, etc.] Officers 
 who have been, or may be, transferred from the volunteer service to the Regular 
 Navy shall be credited v^^th the sea-service perfonned by them as volunteer 
 officers, and shall receive all the benefits of such duty in the same manner 
 as if they had been, during such service, in the Regular Navy. — (2 Mar., 1867, 
 c. 174, s. 3, V. 14, p. 516.) 
 
 quirement of three years' sea service prior 
 to promotion of acting chaplains is con- 
 tained in act of June 30, 1914 (38 Stat., 403). 
 Service as midshipman at the Naval Academy 
 or as cadet at the ^Military Academy not to 
 be credited to officers of the Navy who were 
 appointed to said academies after March 4, 
 1913. (Act Mar. 4, 1913, 37 Stat., 891.) 
 Staff officers appointed since March 4, 1913, not 
 to be credited with constructive ser-vice for 
 purposes of precedence. (Act Mar. 4, 
 1913, 37 Stat., 892.) 
 Staff officers and others appointed from civil 
 life since March 4, 1913, not to be credited 
 with constructiA-e service for purposes of 
 pay. (Act Mar. 4, 1913, 37 Stat., 891.) 
 Transfer of officers fi-om the temporary Navy 
 and Naval Reserve Force to the Regular 
 NaA'y was authorized bv act of June 4, 
 1920 (41 Stat., 834-836.)." 
 Vessels in merchant marine may be taken pos- 
 session of by President for naval purposes. 
 (Act Sept. 7, 1916, 39 Stat., 731.) 
 Volimteer Naval Resers-e established. (Act 
 Aug. 29, 1916, 39 Stat., 592, as amended 
 by act of July 1, 1918, 40 Stat., 710.) 
 Volunteer Patrol Squadrons: See act of August 
 29, 1916 (39 Stat.. 600), 
 The effect of the la-w embodied in this 
 section is to give the officers concerned the 
 full benefit of sea duty performed by them 
 while in the volunteer ser\-ice. Such duty may 
 go to complete the period of sea service re- 
 quired in certain grades of the Regular Navy 
 prior to promotion, or may be properly taken 
 into account in the matter of assignment to 
 duty. It does not confer upon the officers 
 referred to the right to have their commissions 
 or their rank antedated. (14 Op. Atty. Gen., 
 198; see also 16 Op. Atty. Gen., 45, 17 Op. 
 Atty. Gen., 189, and 17 Op. Atty. Gen., 399.) 
 By the regulations of the Navy in force when 
 this law was adopted a certain period of sea 
 service, formerly two years and later one year, 
 was required of officers in the four grades "from 
 ensign to Ueutenant commander, inclusive, be- 
 fore, as a general rule, they were nominated 
 
 "An act to abolish the Volunteer Navy of the 
 United States," approved February 15, 
 1879 (20 Stat., 294), made provision for 
 transferring to the Regular Navy line offi- 
 cers and medical officers in the Volunteer 
 NaA'y, and for mustering out volunteer offi- 
 cers not quaUfied to discharge the duties of 
 their position. 
 
 Any Hne officer of volunteers may be advanced 
 in grade if given a vote of thanks by Con- 
 gress for heroism. (Sec. 1508, R. S.) 
 
 Honorably discharged volunteer officers and 
 sailors are eligible for admission to the Na- 
 tional Home for Disabled Volunteer Sol- 
 diers. (Act May 26, 1900, 31 Stat., 217.) 
 
 Other provisions for crediting officers of the 
 Navy with service in the Volunteer Army 
 or Na\'y are contained in the act of March 3, 
 1883 (22 Stat., 473). 
 
 Pay of officers in a volunteer naval service, 
 when authorized by law, is provided for by 
 section 1559, Revised Statutes. 
 
 Previous service to be credited to officers ap- 
 pointed to any corps of the Navy or to the 
 Marine Corps, after serving in a different 
 corps of the Navy or of the Marine Corps. 
 (Act June 10, 1896, 29 Stat., 361.) 
 
 Previous service to be credited to certain sur- 
 geons in the Navy appointed for meritorious 
 services during yellow fever epidemics. 
 (Act June 10, 1896, 29 Stat., 361.) 
 
 "Sea service" defined: See section 1571, Re- 
 visQd Statutes. By act of August 29, 1916 
 (39 Stat., 579), it was proWded that "on 
 and after June thirtieth, nineteen hundred 
 and twenty, no captiiiri, commander, or 
 lieutenant commander shall be promoted 
 unless he has had not less than two years' 
 actual sea ser\-ice on seagoing ships in the 
 grade in which ser\-ing. * * * Pro- 
 vided, That the qualification of sea serxdce 
 shall not apply to ofiicers restricted to the 
 performance of engineering duty only." 
 This requirement as to sea service was 
 modified in its application to exceptional 
 cases during war or national emergency bv 
 act of July 1, 1918 (40 Stat., 718). A re- 
 
 530 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1413. 
 
 for promotion to the next higher grades. (See 
 Regulations of 1865, p. 46, par. 257; Regulations 
 of 1870, p. 130, par. 299.) Besides, officers of 
 the Navy generally are credited with their sea 
 service with a view to its being taken into con- 
 sideration in theii" future assignment to duty. 
 The design of the provision referred to, then, 
 was to give the transferred officers the full bene- 
 
 fit of their former sea service, in so far as it 
 might go to complete the period of such service 
 required in their respective grades previous 
 to nomination for promotion, and in so far as 
 it ought properly to be taken into account in 
 the matter of assignment to duty. Beyond 
 these advantages the provision would seem to 
 confer nothing. (14 Op. Atty. Gen., 358.) 
 
 Sec. 1413. [Civil Engineer Corps; and Storekeepers.] The President, by 
 and with the advice and consent of the Senate, may appoint a civil engineer 
 and a naval store-keeper at each of the navy-yards where such officers may be 
 necessary.— (2 Mar., 1867, c. 172, s. 1, v. 14, p. 490. 17 June, 1868, c. 61, s. 1, 
 V. 15, p. 69.) 
 
 Amendment to this section was made by act of 
 March 3, 1899, section 7 (30 Stat., 1006), 
 which provided that "no appointments 
 shall be made of civil engineers in the Navy 
 on the active list under section fourteen 
 hundred and thirteen of the Revised 
 Statutes in excess of the present number, 
 twenty-one." 
 
 Further amendment was made by act of July 1 , 
 
 1902 (32 Stat., 671), which provided that 
 "the appointment of six additional civil 
 engineers is hereby authorized, three to be 
 appointed during the present calendar 
 year, and the other three in the calendar 
 year of nineteen hundred and three." 
 
 " One additional civil engineer, in all twenty- 
 eight, and twelve assistant ci^•il engineers, 
 of whom six shall haA e the rank of lieu- 
 tenant (junior grade) and six the rank of 
 ensign," were authorized by act of March 3, 
 
 1903 (32 Stat., 1197). By act of March 4, 
 1917 (39 Stat., 1184), it was provided that 
 "officers of the Corps of Civil Engineers 
 hereafter appointed shall, from the date 
 of their original appointment, take rank 
 and precedence with Lieutenants (junior 
 grade)." 
 
 One civil engineer (Leonard Martin Cox), was 
 authorized by name to be restored to the 
 Corps of Ci^•il Engineers, to be "carried as 
 an additional to the number of the grade 
 to wliich he may be appointed under this 
 act, or at any time thereafter." (Act 
 Mar. 4, 1907, 34 Stat., 1407.) The total 
 number of civil engineers in the Navy was 
 thereby increased, temporarily, to 29. By 
 act of August 29, 1916 (39 Stat., 576), it was 
 provided that "the total number of com- 
 missioned officers of the active list of the 
 following staff corps, exclusive of com- 
 missioned warrant officers, shall be based 
 on percentages of the total number of 
 commissioned officers of the active list of 
 the line of the Navy, as follows: * * * 
 Corps of Civil Engineers, two per cen- 
 tum * * *. The total number of com- 
 missioned officers of the active list of the 
 following mentioned staff corps at any one 
 time, exclusive of commissioned warrant 
 officers, shall be distributed in the various 
 grades of the respective corps as follows: 
 *. * * Corpsof Civil Engineers: One-half 
 civil engineers with the rank of rear ad- 
 miral to five and one-half civil engineers 
 with the rank of captain, to fourteen civil 
 
 engineers with the rank of commander, to 
 eighty civil engineers and assistant civil 
 engineers with the rank below commander. 
 * * * When there is an odd number of 
 officers in the grade or rank of rear admii-al 
 in the line or in each corps, the lower di- 
 vision thereof shall include the excess in 
 number, except where there is but one. 
 Whenever a final fraction occurs in comput- 
 ing the authorized numlier of any corps, 
 grade, or rank in the naval service, the 
 nearest whole number shall be regarded as 
 the authorized number: Provided, That at 
 least one officer shall be allowed in each 
 grade or rank. For the purpose of deter- 
 mining the authorized number of officers in 
 any grade or rank of the line or of the staff 
 corps, there shall be excluded from consid- 
 eration those officers carried by law as addi- 
 tional numbers, including staff officers here- 
 tofore permanently commissioned with the 
 rank of rear admiral, and nothing contained 
 herein shall be held to reduce below that 
 heretofore authorized by law the number of 
 officers in any grade or rank in the staff 
 corps." The temporary appointment of 
 additional officers during the period of the 
 existing war was authorized by the act of 
 May 22, 1917, section 4 (40 Stat., 85), as 
 amended by act of July 1, 1918 (40 Stat., 
 715), which also authorized temporary ap- 
 pointments and promotions to fill dming 
 the period of the war the deficiency exist- 
 ing prior to May 22, 1917, in the total 
 number of commissioned officers author- 
 ized by the act of August 29, 1916. By act 
 of June 4, 1920 (41 Stat., 834), it was pro- 
 vided that ''the number of staff officers on 
 active duty of whatever kind shall be in 
 the same proportions as authorized by 
 existing law." 
 " Promotions in the corps of civil engineers shall 
 be after such examination as the Seci'etary 
 of the Navy may prescribe." (Act Mar. 
 3, 1903, 32 Stat., 1197.) Examinations 
 were discontinued for promotion of staff 
 officers in grade by act of May 22, 1917, 
 section 20 (40 Stat., 89), which act and 
 section also reenacted a provision in the 
 act of March 4, 1917 (39 Stat., 1182), re- 
 quiring examinations of staff officers for 
 advancement in rank. Advancement in 
 rank of staff officers up to and including the 
 rank of lieutenant commander is regulated 
 by act August 29, 1916 (39 Stat., 576). 
 
 531 
 
Sec. 1413. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Advancement to the ranks of commander, 
 captam, and rear admiral in the Staff 
 Corps of the Navy are to be made by selec- 
 tion upon recommendation of a l)oard of 
 oHicers of the corps concerned. (Act July 
 1, ]!)18, 10 Stat., 718.) 
 Rank of civil engineers is fixed by section 1478, 
 Revised Statutes, as amended by act of 
 August 29, 191G (39 Stat., 577). 
 Rank of assistant ci\il engineers. See acts of 
 March 3, 1903, and March 4, 1917, noted 
 above. 
 Storekeepers; civilians may be appointed for 
 
 foreign stations. (Sec. 1414, R. S.) 
 Storekeepers; bonds required of civilians. 
 
 (Sec. 1415, R. S.) 
 Storekeepers; officers required to act as. (Sec. 
 
 1438, R. S.) 
 Storekeepers; bonds required of officers acting 
 
 as. (Sec. 1439, R. S.) 
 Storekeepers; mileage was allowed for travel 
 by section 15(J6, Revised Statutes, now 
 superseded. 
 Storekeepers; pay of officers acting as. (Sec. 
 
 1567, R. S.) 
 Storekeepers; pay of civilians. (Sec. 1568, 
 
 R. S.) 
 Storekeeper at Naval Academy to be detailed 
 from Pay [now Supplv] Corps. (Sec. 1527, 
 R. S.) 
 Historical note. — Prior to the act of March 
 2, 1867 (14 Stat., 490), civil engineers were 
 appointed by the Secretary of the Navy; 
 since then, under authority of that act (now 
 embodied in sec. 1413, R. S.), they have 
 been commissioned by the President by 
 and with the advice and consent of the 
 Senate; they were appropriated for as part of 
 the civil establishment at the several navy 
 yards and stations under the control of the Bu- 
 reau of Yards and Docks until 1870, when their 
 pay was regulated by section 3 of the act of July 
 15 of that year (now embodied in section 1556, 
 Revised Statutes), fixing the annual pay of 
 officers of the Navy on the active list, and ap- 
 propriations for their pay have been made since 
 1870 under the head of "Pay of the Navy." 
 (17 Op. Atty. Gen., 126.) 
 
 Prior to 1867 civil engineers in the Navy were 
 appointed by the Secretary of the Navy, and 
 their duties were shore duties — the superin- 
 tendence and charge of buildings in navy yards. 
 (Brown v. U. S., 32 Ct. Cls., 379.) 
 
 The authority of the Pre.'^ident under the act 
 of March 3, 1871 (now embodied in sec. 1478, 
 R. S.), "to determine and fix the relative rank 
 of civil engineers," was not exercised until 
 February 24, 1881. (17 Op. Atty. Gen., 
 126.) 
 
 In 16 Op. Atty. Gen., 203, it was held that 
 civil engineers, in the absence of action by the 
 President conferring rank upon them as au- 
 thorized by law, were civil officers, and not 
 naval officers, and might be removed by nomi- 
 nation and confirmation of a successor in any 
 case; and that no notice of dismissal need be 
 sent the officer so removed. Also held that sec- 
 tion 1413, Revised Statutes, "necessarily im- 
 pUes that such appointments are only to be 
 made where such officers are found necessary, 
 and inferentially that their services may be 
 
 dispensed with when unnecessary; and indi- 
 cates that the appointment is to some extent a 
 local one, and that the ajjpointee can not be a 
 naval officer in the full sense of the term." 
 
 In 17 Op. Atty. Gen., 126, it was held that 
 civil engineers are not merely "civil officers 
 connected with the Navy," but are officers in 
 the Navy, plainly included among those con- 
 templated by the amended section 1480, Re- 
 vised Statutes, as belonging to the "staff corps of 
 the Navy," and possessing, under a then recent 
 order issued pursuant to section 1478, Revised 
 Statutes, defined relative rank with other offi- 
 cers in the Navy; and accordingly, that they 
 may be retired from active service and placed 
 on the retired list under the statutory provi- 
 sions (sees. 1443 et seq.) regulating the retire- 
 ment of officers in the Navy. (It had previ- 
 ously been held, in 15 Op. Atty. Gen., 165, that 
 civil engineers appointed under sec. 1413, R. 
 S., are officers of the Navv within the meaning 
 of arts. 36 and 37 of sec. 1624, R. S.; and in 15 
 Op. Atty. Gen., 597, that they were persons be- 
 longing to the Navy and as such subject to the 
 jurisdiction of naval courts- martial.) 
 
 In Brown v. U. S. (32 Ct. Cls., 379), it was 
 held that the acts of March 2, 1867 (sec. 1413, 
 R. S.), and July 15, 1870 (16 Stat., 321, 330, sec. 
 3), and March 3, 1871 (16 Stat., 526, 536), did 
 not change the legal status of ciWl engineers in 
 the Navy, but were merely a legislative recog- 
 nition of civil engineers as officials who were 
 then and always had been in the naval and not 
 in the civil service; that both the Navy De- 
 partment and" the accounting officers of the 
 Treasury had uniformly held that civil engi- 
 neers in the Navy were in the naval service; 
 and accordingly that civil engineers in the 
 Navy prior to the act of March 2, 1867 (sec. 1413, 
 R. S.), were officers and were in the naval serv- 
 ice mthin the intent of the act of March 3, 1883 
 (22 Stat., 473), relating to longevity pay. 
 
 Civil Engineer Corps, increases for 
 benefit of designated individuals not 
 favored.- — "The Department is not satisfied as 
 to the necessity for increase in the corj^s of civil 
 engineers, and even if an increase should be 
 deemed advisable, believes that it should be 
 made in the regular way, by an authorized 
 increase in the corps, and not by a bill designed 
 to benefit a particular individual to be ap- 
 pointed as an additional number." (File 
 532-43, Mar. 31, 1908.) 
 
 "If the corps is to be increased it would seem 
 that the increase should be made first and the 
 candidate qualify afterwards, rather than to pass 
 a special law creating a vacancy for any person, 
 however worthy." (File 532^2, Feb. 29, 
 1908.) 
 
 As to unconstitutionality of such legis- 
 lation, see note to Constitution, Article II 
 section 2, clause 2, "Congress cannot designate 
 appointee," under "III. Power of Congress." 
 
 Superintendent of State, War, and Navy 
 Building.— The act of March 3, 1883 (22 Stat. 
 553), does not contemplate that an officer of 
 the CorjDB of Civil Engineers of the Navy shall 
 be eligible for appointment as superintendent 
 of the State, War, and Navy Building. (25 
 Op, Attv. Gen., 508. See also notes to sees. 
 1390 and 1462, R. S.) 
 
 532 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1416. 
 
 Sec. 1414. [Civilian storekeepers on foreign stations.] The Secretary of 
 the Navy may appoint citizens who are not officers of the Navy to be store- 
 keepers on foreign stations, when suitable officers of the Navy can not be 
 ordered on such service, or when, in his opinion, the pubHc interest will be 
 thereby promoted. — (17 June, 1844, c. 107, s. 1, v. 5, p. 700. 3 Mar., 1847, c. 48, 
 s. 3, r. 9, p. 72.) 
 
 Except as pro\T.ded in this section, the Secre- 
 tary of the Na^^ shall order a suitable 
 commissioned or warrant officer to take 
 charge of the naval stores at foreign sta- 
 tions where a storekeeper may be neces- 
 sary. (Sec. 1438, R. S.) 
 Pay of civilian storekeepers on foreign stations 
 is fixed by section 1568, Revised Statutes. 
 Supply officer to be general store- 
 keeper. — At each navy yard and station there 
 shall be an officer of the pay [supply] corps 
 detailed as the general storekeeper. (Art. 
 R-4622, Navy Regs., 1913.) 
 
 Appointment raxist be made by the 
 Secretary of the Navy. — The appointment 
 of a ci\T.lian naval storekeeper by the com- 
 mander of a squadron is not authorized by law, 
 and is therefore void, and furnishes no ground 
 upon wMch the salary for that office can be 
 claimed. (Larkin v. tJ. S., 5 Ct. Cls., 535. )_ 
 
 It is clear that under the law embodied in 
 this section a citizen could only be appointed 
 to the office of naval storekeeper by the Secre- 
 tary of the Navy when a suitable naval officer 
 could not be ordered on such service or when 
 in the Secretary's opinion the public service 
 would be promoted by the appointment of a 
 citizen. The commander of a squadron cer- 
 tainly had no authority tomake such an ap- 
 pointment. Possibly he might under a neces- 
 sity have ordered a commissioned or warrant 
 officer of the Navy to discharge the duties of 
 
 the office temporarily [see section 1438, Revised 
 Statutes], but it cannot be contended that he 
 had any authority of law to order a citizen or 
 to clothe him witn the functions of the office. 
 (Larking. U. S., 5 Ct. Cls., 535.) 
 
 Sale of stores to officers and enlisted, 
 men. — The Secretary of the Navy is not 
 authorized, in the absence of a provision of 
 law therefor, to purchase for sale to officers and 
 enlisted men of the Navy articles not included 
 in the regular naval stores. (6 Comp. Dec.: 
 321.) 
 
 Sections 1414 and 1438 of the Revised 
 Statutes refer only to such naval stores and 
 provisions as are authorized to be issued 
 to the Navy, and do not include anything more 
 than the components of the Navy ration as 
 prescribed by law; and the appropriation for 
 subsistence of the Navy is not available for 
 the purchase of any article of subsistence 
 except such as the law authorizes to be pur- 
 chased and issued to the enlisted men of the 
 Navy, and cannot be used for the purchase of 
 articles of subsistence which may be authorized 
 to be purchased and sold in the commissary 
 stores of the Army under section 144, Revised 
 Statutes, and the act of July 5, 1884 (23 Stat., 
 108). (6 Comp. Dec, 321.) 
 
 See laws noted under section 418, Revised 
 Statutes, with reference to sale of naval stores 
 to persons in the Anny, Navy, and Marine 
 Corps, and to civilian employees. 
 
 Sec. 1415. [Civilian storekeepers to give bond.] Every person who is ap- 
 pointed store-keeper under the provisions of the preceding section shall be 
 required to give a bond, in such amount as may be fixed by the Secretary of the 
 Navy, for the faithful performance of his duty. — (17 June, 1844, c. 107, s. 1, 
 V. 5, p. 700; 3 IVIar., 1847, c. 48, s. 3, v. 9, p. 172.) 
 
 On general subject of bonds, see note to section 1383, Revised Statutes. 
 
 Sec. 1416. [Civil offices at yards may be discontinued. Superseded.] 
 
 This section provided as follows: 
 
 '"Sec. 1416. The Secretary of the Navy is 
 authorized, when in his opinion the public 
 interest will permit it, to discontinue the office 
 or employment of any measurer and inspector 
 of timber, clerk of the yard, clerk of the com- 
 mandant, clerk of the storekeeper, clerk of the 
 naval constructor, and the keeper of the maga- 
 zine employed at any navy yard , and to require 
 the duties of the keeper of the magazine to be 
 performed by gunners." 10 Aug., 1846, c. 176, 
 8. 1, V. 9, pp. 98, 99. 
 
 It was superseded by a clause in the naval 
 appropriation act of March 3, 1909 (35 Stat., 
 754), noted below under "Clerks to comman- 
 dants of yards and stations." 
 
 Clerks to commandants of yards and 
 stations. — By section 1556, Revised Statutes, 
 
 provision was made for the pay of clerks to com- 
 mandants of yards and stations, and pa>Tnent 
 in accordance therewith was specifically au- 
 thorized in the annual naval appropriation act 
 under "Pay of the Navy," including the act of 
 May 13, 1908 (35 Stat., 127). By naval appro- 
 priation act of March 3, 1909 (35 Stat., 754), the 
 Secretary of the Navy was authorized to fix the 
 pay of the "clerical, drafting, inspection, and 
 messenger force at navy yards and naval sta- 
 tions" on a per annum or per diem basis as he 
 may elect; it was further provided therein ' 'that 
 the number may be increased or decreased at 
 his option, and shall be distributed at the 
 various navy yards and naval stations by the 
 Secretary of the Navy to meet the needs of the 
 naval ser\-ice." The same act repealed "so 
 much of section fifteen hundred and fifty-six of 
 
 533 
 
Sec. 1417. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 the Revised Statutes as relates to pay of clerks Service as commandant's clerk is not military 
 
 to commandants of navy yards and naval eta- service, and the Navy Department does not 
 
 tions," and omitted the specific pro\d8ion approve of proposed legislation crediting such 
 
 theretofore made under "Pay of the Navy" for service to oriicers of the Na\-y or Marine Corps 
 
 such dorks. for longevity purposes. (File 26255-274:2, 
 
 The term "officer or enlisted man'' as used in Jan. 21, 1913.) But see contra. 25 Comp. Dec, 
 
 the death gratuity law of May 13, 1908 (35 Stat . , 745. 
 128), does not apply to commandant's clerks. 
 (File54(iO-31.) 
 
 Sec. 1417. [Enlisted men, number of; advancement to warrant officers.] The 
 number of persons who may at one time be enhsted into the Navy of the 
 United States, including seamen, ordinary seamen, landsmen, mechanics, fire- 
 men, and coal-heavers, and including seven hundred and fifty apprentices and 
 boys, hereby authorized to be enlisted annually, shall not exceed eight thousand 
 two hundred and fifty: Provided, That in the appointment of warrant-officers 
 in the naval service of the United States, preference shall be given to men who 
 have been honorabl}^ discharged upon the expiration of an enlistment as an 
 apprentice or boy, to serve during minority, and re-enlisted ^vithin tliree months 
 after such discharge, to serve during a term of three or more years : Provided 
 further, That nothing in this act shall be held to abrogate the provisions of 
 section fourteen hundred and seven of the Revised Statutes of the United States, 
 
 ? 
 
 This section was expressly amended and re- 
 enacted to read as above by act of May 12, 
 1879 (21 Stat., 3). As it appeared in the 
 second edition of the Re^d8ed Statutes, it 
 read as follows: 
 
 "Sec. 1417. [The nuviber of persons who may 
 at one time be enlisted into the Navy of the United 
 States, including seamen, ordinary seamen, 
 landsmen, mechanics, firemen, coal heavers, ap- 
 prentices, and boys, shall not exceed eight thousand 
 fivehundred.^ [Thenumber of persons whomay at 
 one time be enlisted into the Navy of the United 
 States, including seamen, ordinary seamen, 
 landsmen, mechanics, firemen, coal heavers, 
 apprentices, and boys, shall not exceed seven 
 thousand and fivehundred.]"— (7 June, 1864, c. 
 Ill, v. 13, p. 120; 17 June, 1868, c. 61, s. 2, v. 15, 
 
 72; 30 June, 1876, c. 159, v. 19, p. 66; U. S. v. 
 hompson, 2 Spr., 103.) 
 
 The number of enlisted men has from 
 time to tim.e been increased as follows: 
 
 "The number of persons who may at one 
 time be enlisted into the Navy of the United 
 States, including seamen, ordinary seamen, 
 landsmen, mechanics, firemen, and coal heav- 
 ers, and including one thousand five hundred 
 apprentices and boys, hereby authorized to be 
 enlisted annually, shall not exceed nine thou- 
 sand." (Act Mar. 3, 1893, 27 Stat., 730.) 
 
 "The Secretary of the Navy is hereby author- 
 ized to enlist as many additional seamen as in 
 his discretion he may deem necessarj-, not to 
 exceed one thousand." (Act Mar. 2, 1895, 28 
 Stat., 826.) 
 
 "The Secretary of the Na\'y is hereby au- 
 thorized to enlist at any time after the passage 
 of this act as many additional men as in his dis- 
 cretion he may deem necessanv-, not to exceed 
 one thousand." (Act June 10, 1896, 29 Stat., 
 361.) 
 
 Subsequent acts fixed the number of euUsted 
 men in the Navy as follows: 
 
 11,000 Petty officers, seamen, landsmen, and 
 boys, including men in the engineers' 
 force and for the Coast Survey Service 
 and Fish Commission; and 
 750 Boys under training at training stations 
 and on board training ships. (Act 
 Mar. 3, 1897, 29 Stat., 648.) 
 
 12, 750 Petty officers, seamen, landsmen, and 
 boys, including men in the engineers' 
 force and for the Coast Survey Ser\dce 
 and Fish Commission; 
 1, 000 Boys under training at training stations 
 and on board training ships; and 
 Men detailed for duty ^\'ith Naval 
 Militia. (Act May 4, 1898, 30 Stat., 
 369. Pro\'ision was made by the 
 same act for a temporary increase of 
 the enlisted force during the existing 
 War ^\ith. Spain.) 
 
 17, 500 Petty officers, seamen, landsmen, and 
 apprentice boys, including men in 
 the engineers' force and for the Coast 
 Survey Service and Fish Commission; 
 2, 500 Apprentices under training at training 
 stations and on board training ships; 
 and 
 Men detailed for duty with Naval Mili- 
 tia. (Act Mar. 3, 1899, 30 Stat., 
 1025.) 
 
 22, 500 Petty officers, seamen, landsmen, and 
 apprentice boys, including men in 
 the engineers' force, and for the Fish 
 Commission ; 
 2, 500 Apprentices under training at training 
 stations and on board training ships; 
 and 
 Men detailed for duty with Naval Mi- 
 litia. (Act Mar. 3, 1901, 31 Stat., 
 1108). 
 
 534 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1417. 
 
 25, 500 Petty officers, seamen, landsmen, and 
 apprentice boys, including men in 
 the engineers' force, and for the Fish 
 Commission ; 
 2, 500 Apprentices under training at trairiing 
 stations and on board training ships; 
 and 
 Men detailed for duty with Naval 
 MiUtia. (Act Julv 1, 1902, 32 Stat., 
 662.) 
 
 28,500 Petty officers, seamen, landsmen, and 
 apprentices, including men in the 
 engineers' force, and men detailed 
 for duty with Naval Militia, and for 
 the Fisn Commission; and 
 2, 500 Apprentices under training^ at training 
 stations and on board training ships. 
 (Act Mar. 3, 1903, 32 Stat., 1177.) 
 
 31, 500 Petty officers, seamen, landsmen, and 
 apprentices, including men in the 
 engineers' force, and men detailed for 
 duty with Naval Militia, and for the 
 Fish Commission ; and 
 2,500 Apprentices under training at training 
 stations and on board training ships. 
 (Act Apr. 27, 1904, 33 Stat., 324.) 
 
 34, 500 Petty officers, seamen, landsmen, and 
 apprentices, including men in the 
 engineers' force, and men detailed 
 for duty with Naval Militia, and for 
 the Fish Commission ; 
 2, 500 Apprentices under training at trairiing 
 stations and on board training ships; 
 and 
 Men undergoing imprisonment with 
 sentence of dishonorable discharge 
 from the Ber\'ice at expiration of such 
 confinement. (Act Mar. 3, 1905, 33 
 Stat., 1092.) 
 
 36, 000 Petty officers, seamen, landsmen, and 
 apprentice seamen, including men in 
 the engineers' force, and men detailed 
 for duty with Naval Militia, and for 
 the Fish Commission ; 
 2, 500 Apprentice seamen under training at 
 training stations and on board training 
 ships; and 
 Men undergoing imprisonment with 
 sentence of dishonorable discharge 
 from the service at expiration of such 
 confinement. (Act Mar, 2, 1907, 34 
 Stat., 1176.) 
 
 42, 000 Petty officers, seamen, landsmen, and 
 apprentice seamen, including men in 
 the engineers' force, and men detailed 
 for duty wnth Naval Militia, and for 
 the Fish Commission; 
 2, 500 Apprentice seamen under training at 
 training stations and on board train- 
 ing ships; and 
 Men undergoing imprisonment with 
 sentence of dishonorable discharge 
 from the service at expiration of such 
 confinement. (Act May 13, 1908, 35 
 Stat., 127.) 
 
 44,000 Petty officers, seamen, landsmen, and 
 apprentice seamen, including men in 
 
 the engineers' force and men detailed 
 for duty with Naval Militia, and for 
 the Fish Commission ; 
 3, 500 Apprentice seamen under training at 
 training stations and on board train- 
 ing ships; and 
 Men undergoing imprisonment with 
 sentence of dishonorable discharge 
 from the service at expiration of such 
 confinement. (Act June 24, 1910, 36 
 Stat., 606.) 
 
 48,000 Petty officers, seamen, landsmen, and 
 apprentice seamen, including men in 
 the engineers' force and men detailed 
 for duty with Naval Militia, and for 
 the Fish Commission; 
 3, 500 Apprentice seamen under training at 
 training stations and on board train- 
 ing ships; and 
 Men undergoing imprisonment ^\'ith 
 sentence of dishonorable discharge 
 from the service at expiration of such 
 confinement. (Act Aug. 22, 1912, 37 
 Stat., 328.) 
 
 48,000 Petty officers, seamen, landsmen, and 
 apprentice seamen, including men in 
 the engineers' force and men detailed 
 for duty with the Fish Commission; 
 3,500 Apprentice seamen under training at 
 training stations and on board train- 
 ing ships ; 
 Men detailed for duty with the Naval 
 
 Militia; and 
 Men undergoing imprisonment with 
 sentence of dishonorable discharge 
 from the service at the expiration of 
 such confinement. (Act March 3, 
 1915, 38 Stat., 938.) 
 
 68, 700 Petty officers, seamen, landsmen, and 
 apprentice seamen, including men 
 in the engineers' force and men de- 
 tailed for duty with the Fish Com- 
 mission ; 
 6,000 Apprentice seamen under training at 
 training stations and on board train- 
 ing ships; 
 
 Men detailed for duty with the Naval 
 Militia; 
 
 Men sentenced by court-martial to 
 discharge ; 
 
 Men furloughed without pay, subject to 
 recall in time of emergency; 
 
 Men in the Hospital Corps; and 
 350 Enlisted men of the Naval Flying Corps. 
 (Act Aug. 29, 1916, 39 Stat., 572, 575, 
 582.) 
 
 87,000 "The President is hereafter authorized 
 whenever in his judgment a sufficient 
 national emergency exists, to increase 
 the authorized enlisted strength of the 
 Navy to eighty-seven thousand men." 
 (Act Aug. 29, 1916, 39 Stat., 575.) 
 
 150,000 "The authorized enlisted strength of 
 the active list of the Navy is hereby 
 temporarily increased from eighty- 
 seven thousand to one hundred and 
 fifty thousand, including four thou- 
 
 535 
 
Sec. 1417. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 saiul iidditioiKil apprentice peamcn." 
 (ActMayL'2, 1917, sec. 1,40 Stat., 84.; 
 
 131,485 "The authorized enlisted strength of 
 the active list of the Navy is hereby 
 increased f rom oifjhty-seven thousand 
 to one hundred and tliirty-one thou- 
 sand four hundred and eightv-five." 
 (Act July 1, 1918, 40 Stat., 714.) 
 
 181,485 "The authorized enlisted strength of 
 the active list of the Navy is hereby 
 temporarily increased from one hun- 
 dred and thirty-one thousand four 
 hundred and eighty-five to one hun- 
 dred and eighty-one thousand four 
 hundred and eighty-five; the author- 
 ized number of apprentice seamen 
 is hereby temporarily increased from 
 six thousand to twenty-four thousand ; 
 and the authorized number of enlist- 
 ed men of the Flying Corps is hereby 
 temporarily increased from three 
 hundred and fifty to ten thousand. 
 
 * * * Provided further, That the 
 number of enlisted men for instruc- 
 tion in trade schools shall not at any 
 time exceed fourteen thousand, 
 which number is hereby temporarily 
 authorized: Provided further, That 
 the President is authorized, at any 
 time during the period of the present 
 war, when in his judgment it be- 
 comes necessary, temporarily to in- 
 crease the authorized enlisted 
 strength of the Navy, as provided 
 for herein, by the addition of fifty 
 thousand men." (Act July 1, 1918, 
 40 Stat., 714, expressly amending 
 and reenacting section 1 of the act 
 approved May 22, 1917, 40 Stat., 
 84.) 
 
 241,000 "The total authorized enlisted strength 
 of the active list of the Navy is hereby 
 temporarily increased from 131,485 
 during the period from July 1, 1919, to 
 September 30, 1919, to 241,000 men, 
 and from October 1, 1919, to December 
 31, 1919, to 191,000 men, and from 
 January 1, 1920, to June 30, 1920, to 
 170,000 men and the President is 
 hereby authorized, whenever in his 
 judgment a sufficient national emer- 
 gency exists, to increase the author- 
 ized enlisted strength of the Navy to 
 191,000 men * * *, The foregoing 
 total authorized enlisted strength shall 
 include the hospital corps, apprentice 
 seamen, those sentenced by court- 
 martial to discharge, enlisted men of 
 the Flying Corps, those under instruc- 
 tion in trade schools and members of 
 the Naval Reserve Force so serving. 
 
 * * *'■ , Provided further, That noth- 
 ing herein shall be construed as 
 affecting the permanent * * * en- 
 listed strength of the Regular Navy 
 as authorized bv existing law." (Act 
 July 11, 1919, 41 Stat., 138. )_ 
 
 "That the Secretary of the Navy is hereby 
 authorized to employ on active duty, ^vith their 
 own consent, members of the Naval Reserve 
 Force in enlisted ratings, the number so em- 
 
 ployed not to exceed during any fiscal year the 
 average of twenty thousand men: Provided, 
 That the number of naval reservists, so em- 
 ployed on active duty, together with the 
 total number of enlisted men in the Regular 
 Navy, shall not exceed the total enlisted 
 strength of the Navy as authorized by laM'." 
 (Act June 4, 1920, 41 Stat., 834.) 
 
 Apprentice seamen under training. — By 
 act of April 24, 1896, section 2(29 Stat., 97), it 
 was provided that " all a])prenticos of the Navy% 
 whether at a training station or on board an 
 apprentice training ship, shall be additional to 
 the number of enlisted persons allowed by law 
 for the Navy." The term "apprentices" was 
 changed to "apprentice seamen" by act of 
 June 29, 1906 (34 Stat., 553). _ 
 
 The expression "any enlisted man in the 
 Navy," as used in the naval appropriation act 
 of August 22, 1912 (37 Stat., 330), is broad 
 enough to include a minor enlisted as appren- 
 tice seaman, although the same act in another 
 connection specifically mentions "any enlisted 
 man or apprentice." (20 Comp. Dec, 429; see 
 also note to sec. 1418, R. S.) 
 
 Men under sentence of dishonorable dis- 
 charge.— The act of March 3, 1905 (33 Stat., 
 1092), provided that "the number of enlisted 
 men shall be exclusive of those undergoing im- 
 prisonment with sentence of dishonorable dis- 
 charge from the service at expiration of such 
 confinement." This provision was rej^eated in 
 the subsequent naval appropriation acts, each 
 year, unril the act of August 2.9, 1916 (39 Stat., 
 575), which provided that "hereafter the num- 
 ber of enlisted men of the Navy shall be exclu- 
 sive of those sentenced by court-martial to dis- 
 charge." The latter clause is permanent legis- 
 lation, and modifies that contained in the pre- 
 vious acts relating to the same subject. (File 
 28687-4, Sept. 16, 1916.) 
 
 Men detailed, for duty with Naval Mili- 
 tia. — The Naval Militia act of February 16, 
 1914, section 2 (38 Stat., 283), authorized the 
 Secreta,ry of the Nav^y to detail enhsted men for 
 duty with the Naval MiUtia as "ship keepers," 
 and provided "that such enhsted men shall be 
 in addition to the number now or hereafter 
 allowed by law for the regular Naval Establish- 
 ment." Section 17 of the same act (38 Stat., 
 288) authorized the Secretary of the Navy, 
 upon appUcation of the governor of any State 
 or Territory or the commanding general. Dis- 
 trict of Columbia Militia, to detail enhsted men 
 of the Navy to report to the officers mentioned 
 "for duty in connection with the Naval Mil- 
 itia," but did not provide that men so detailed 
 should be in addition to the number allowed by 
 law for the Navy. The naval appropriation act 
 of March 3, 1915(38 Stat., 938), authorized 48,000 
 petty officers, etc., as in the previous year, but 
 omitted therefrom the clause "including 
 * * * men detailed for duty with Naval 
 Militia," which appeared in the prior acts, and 
 instead made specific provision "for the pay 
 of enhsted men detailed for duty with the 
 Naval Militia," in addition to the 48,000 other- 
 wise authorized. 
 
 Prior to the act of March 3, 1915, above noted, 
 it was held that "the total number of enhsted 
 men appropriated for by the current naval ap- 
 propriation act includes 'men detailed for duty 
 
 536 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1417. 
 
 with Naval Militia, ' under the general authority 
 conferred upon the Secretary of the Navy to 
 detail officers and enlisted men and report to the 
 governors of the various States, etc., but does 
 not include men attached to vessels of the Navy 
 loaned to the Naval Militia under section 2 of 
 the Naval Militia law, who act as ship keepers, 
 and, under the proAisions of that act are 'in 
 addition to the number now or hereafter allowed 
 by law for the regular Naval Establishment. '" 
 Also, that "the department is authorized to 
 enlist the full number of men appropriated for, 
 if necessary, in addition to the number detailed 
 as ship keepers pursuant to section 2 of the 
 Naval Militia law; and that the enlistment of 
 such additional number of men in excess of 
 appropriations is not prohibited by sections 
 3G79 and 3732, Re\'ised Statutes, as amended." 
 (File 3973-106, Feb. 8, 1915.) 
 
 By act of July 1,. 1918 (40 Stat., 708), "all 
 laws heretofore enacted by the Congress relat- 
 ing to the Naval Militia" were repealed. By 
 act of June 4, 1920 (41 Stat., 817) the Naval 
 Militia was revived until June 30, 1922. 
 
 Men detailed for duty -with. Coast and 
 Geodetic Survey. — See note to section 264, 
 Re^dsed Statutes. 
 
 Men detailed to nautical schools in the 
 Philippines are additional to the authorized 
 enlisted strength. (Act June 30, 1906, 34 
 Stat., 817.) 
 
 Enlisted men of the Hospital Corps. — 
 The naval appropriation act of August 29, 1916 
 ^9 Stat., 572), provides that the Hospital 
 Corps shall consist of chief phaiTnacists, phar- 
 macists, and enlisted men; that its authorized 
 strength shall equal 3J per centum of the 
 authorized enlisted strength of the Na\'y and 
 Marine Corps; and that it shall be " in addition" 
 to such authorized enlisted strength. 
 
 Enlisted men of the Flying Corps. — The 
 naval appropriation act of August 29, 1916 (39 
 Stat., 582), provides that "the Naval Flying 
 Corps shall be composed of 150 officers and 350 
 enlisted men, and that the said number of 
 officers, student flyers, and enlisted men shall 
 be in addition to the total number of officers 
 and enlisted men which is now or may hereafter 
 be provided by law for the other branches of 
 the naval service." (See laws noted above as 
 to temporary increase of the Flying Corps.) 
 
 EnHsted men furloughed without pay. — 
 The act of August 29, 1916 (39 Stat., 580), 
 authorized the Secretary of the Navy to fxir- 
 lough enlisted men, without pay, for the un- 
 expired portion of their enlistment, in lieu of 
 discharge by purchase, and subject to recall in 
 time of emergency ; enlisted men so furloughed 
 to be "in addition to the authorized number of 
 enlisted men of the Na\'y." 
 
 A soldier on f m-lough is a soldier of the United 
 States and is in the service, but not on duty. 
 (Union Pac. R. Co. v. U. S., 52 Ct. Cls., 226.) 
 
 'WTien an enlisted man is furloughed without 
 pay for the unexpired portion of his enlistment, 
 his deposit, if any, with interest, should be paid 
 on the date the fuiiough is granted. (File 7657- 
 402:1, Oct. 18, 1916, constnungact Feb. 9, 1889, 
 sec. 1, 25 Stat., 657, providing for payment of 
 deposits and interest on discharge.) 
 
 An enUsted man furloughed without pay is 
 nevertheless an enlisted man in the Navy, and 
 as such is entitled to treatment in Navy "hospi- 
 
 tals. (File 7657-411, Nov. 18, 1916, and Feb. 
 5, 1917.) 
 
 The Navy Department is not authorized to 
 defray the burial expenses of an enlisted man of 
 the Navy who died while fiu-loughed under the 
 act of August 29, 1916 (23 Comp. Dec., 504. 
 Although the Navy Department recognizes as 
 binding the decision of the comptroDer in this 
 case, no modification is made in the previous 
 holding of this department with reference to 
 medical treatment of men on furlough. File 
 7657-411:2, Mar. 15, 1917). 
 
 The "authorized enlisted strength" of 
 the Navy as used in the nav^al appropriation 
 act of August 29, 1916 (39 Stat., 575), refers to 
 the 68,700 men who are exclusive of all such 
 classes of enlisted men as are appropriated for 
 in addition to the authorized enlisted strength. 
 The 6,000 apprentice seamen are within the 
 latter classification, as are also enlisted men of 
 the Hospital Corps, enlisted men sentenced to 
 discharge, enlisted men detailed to the Naval 
 Militia, and enlisted men of the Filing Corps. 
 The words "authorized enlisted strength" are 
 sufficiently broad to include all enlisted men 
 authorized by law, but it is evident that these 
 words are iised in the act of August 29, 1916, in 
 their technical signification as intended to refer 
 merely to the specific numbers of 68,700 men, 
 and 87,000 men, authorized for ordinary times 
 and for national emergency, respectively. 
 (File 28687-4, Sept. 16, 1916.) 
 
 "The plirase 'authorized enlisted strength,' 
 as applied to the personnel of the Navy, shall 
 mean the total number of enlisted men of the 
 Navy authorized by law, exclusive of the 
 Hospital Corps, apprentice seamen, those sen- 
 tenced by court-martial to discharge, those 
 detailed for duty with Naval Militia, those 
 furloughed without pay, enlisted men of the 
 Flying Corps, and those under instruction in 
 trade schools. " (Act May 22, 1917. 40 Stat. , 84, 
 as amended by act July 1, 1918, 40 Stat., 714.) 
 
 The words "total authorized enlisted 
 strength of the active list," as used in the 
 act of August 29, 1916 (39 Stat., 576), are in- 
 tended to designate all classes of enlisted men 
 for whom appropriation is made; that is to say, 
 they include the 68,700 enlisted men proper, 
 and also apprentice seamen, enlisted men of 
 the Hospital Coqjs, enlisted men of the Flving 
 Corps, nav^al prisoners sentenced to discharge, 
 and enlisted men detailed to the Naval Militia. 
 (File 28687-1, Sept. 16, 1916.) 
 
 Authorized niunber of men is daily 
 average. — The naval appropriation act of 
 June 30, 1914 (38 Stat., 403), provided, "That 
 hereafter the number of enlisted men of the 
 Navy and Marine Corps provided for shall be 
 construed to mean the daily av^erage number 
 of enlisted men in the naval service during the 
 fiscal year." 
 
 Naval reserve. — A naval reserve of enlisted 
 men was established by act of March 3, 1915 (38 
 Stat., 940), to consist of men enlisted therem, 
 or transferred thereto from the Regular Navy, 
 and it was provided that "members of the naval 
 reserve may, in time of peace, be requiredto 
 perform not less than one month's active service 
 on board a vessel of the Navy, during each year 
 of service in the naval reserve, and such active 
 service shall not exceed two months in any one 
 year"; and that "in time of war they may be 
 
 537 
 
Sec. 1417. 
 
 PL 2. RE VISED STAT UTES. 
 
 The Navy. 
 
 required to perform active service mth the 
 Navy lhroii,c;nout the war, not to exceed the 
 term of enlistment in the case of those enlisted 
 in the naval reserve.'' This was held to be 
 superseded by act of August 29, 1916 (39 Stat., 
 587), establishino; a Naval Reserve Force to con- 
 sist of six classes, viz, the Fleet Naval Reserve, 
 the Naval Reserve, the Naval Auxiliary 
 Reserve, the Naval Coast Defense Reserve, the 
 Volunteer Naval Reserve, and the Naval Re- 
 servo Flpug Corps. (23 Comp. Dec, 190. 
 The act last cited also established a Marine 
 Corps Reserve and National Naval Vohniteers, 
 and was amended by acts of March 4, 1917, 39 
 Stat., 1174; April 25, 1917, 40 Stat., 38; May 
 22, 1917, 40 Stat., 84; July 1, 1918, 40 Stat., 
 708, 712; Jidv 11, 1919, 41 Stat., 138-141; and 
 June 4, 1920, 41 Stat., 817, 824, 834, 837.) 
 
 Retired enlisted men. — A retired list of 
 enlisted men and appointed petty officers in 
 the Navy was authorized by act of March 3, 1899, 
 section 17 (30 Stat., 1008), which has been 
 amended by subsequent enactments (see acts 
 June 26, 1906,. 34 Stat., 451; Mar. 2, 1907, 38 
 Stat., 1217); and by act of March 3, 1915 (34 
 Stat., 941), it was provided that "the Secretary 
 of the Navy is authorized in time of war, or 
 when, in the opinion of the President, war is 
 threatened, to call any enlisted man on the re- 
 tired list into active service for such duty as he 
 may be able to perform." The act of August 
 29, 1916(39 Stat., 591), enacted that " the Secre- 
 tary of the Navy is authorized in time of war or 
 when a national emergency exists to call any 
 enlisted man on the retired list into active serv- 
 ice for such duty as he may be able to perform. 
 While so employed such enUsted men shall re- 
 ceive the same pay and allowances they were 
 recei\'ing wnen placed on the retired Ust. " By 
 act of July 1, 1918 (40 Stat.,_ 719), it was pro- 
 vided that any retired enlisted man of the 
 Navy or Marine Corps ordered into active 
 service "shall be eligible for promotion and he 
 shall be entitled to tlie pay and benefits of con- 
 tinuous service of such rank and for such length 
 of time as he is or has been employed in active 
 service, and when relieved of active service 
 shall retain upon the retired list the rank and 
 service held by him at the time of such relief, 
 with the pay and allowances of such rank on 
 the retired list." 
 
 Retired enlisted men form no part of the or- 
 ganization of the Army. They sever their con- 
 nection with the Army when they go upon the 
 retired list for the purpose of receiving at the 
 hands of the Government retired pay. They 
 are in effect pensioners. They have no mili- 
 tary duty to perform and can not be required to 
 perform any. It is true that in the act of April 
 25, 1914 (38 Stat., 350), known as the volunteer 
 act, provision is made for the employment of re- 
 tired cnli'^ted men ff)r the performance of certain 
 military duties, and, while so employed, they 
 doubtless become "troops of the United States. ' ' 
 (Union Pac. R. Co. v. U. S., 52 Ct. Cls., 226, 
 citing Murphy v. U. S., 38 Ct. Cls., 511, 521.) 
 
 Enlisted men of the insular force are 
 in contemplation of law enlisted men or ap- 
 prentices of the U. S. Navy, and therefore 
 are entitled to the clothing bounty proWded 
 by law for "enlisted men anfl apprentices of 
 the Navy," and, where detained intheser\ice 
 
 after expiration of their term of enlistment, to 
 the one-fourth additional pay provided for by 
 section 1422, Revised Statutes. (12 Comp. 
 Dec, 189). 
 
 In pursuance of the authority conferred by 
 section 1509, Revised Statutes, the President 
 on April 5, 1901, issued an Executive order pro- 
 viding that "the Secretary of the Navy is 
 authorized to enlist in the insular force, United 
 States Navy, which is hereby established, 
 not to exceed 500 Filipinos in the following 
 ratings and at the rates of pay indicated 
 * * *." [Art. R-4429, Navy Regs,, 1913] 
 Although, under the foregoing Executive order 
 the men are enlisted in what is designated as 
 the insular force, U. S. Navy, they are never- 
 theless enlisted men in and of the Regular 
 Navy of the United States. The fact that they 
 are attached to a part or branch thereof termed 
 the insular force can not affect the conclusion 
 j ust stated ; for said insular force was established 
 under and by \Trtue of the statutes relating to 
 and governing the Navy of the United States, 
 and unless said insular force be a part of the 
 Regular Navy there would exist no authority 
 for the establishment of such force. (12 Comp. 
 Dec, 189.) 
 
 Men enlisted for vocational training'. — 
 "In cases of dismemberment, of injuries to 
 sight or hearing, and of other injuries com- 
 monly causing permanent disability, the in- 
 jured person shall follow such course or courses 
 of rehabilitation, reeducation, and vocational 
 training as the United States may provide or 
 procure to be provided. Should such course 
 prevent the injured person from following a 
 substantially gainful occupation while taking 
 same, a form of enlistment may be required 
 which shall bring the injured person into the 
 military or naval service. Such enlistment 
 shall entitle the person to full pay as during 
 the last month of his active service, and his 
 family to family allowances and allotment as 
 hereinbefore provided, in lieu of all other com- 
 pensation for the time being." (War Risk In- 
 surance Act of Oct. 6, 1917, sec. 304, 40 Stat., 
 407. ) [This section was rej^ealed by act of June 
 27, 1918, sec 10 (40 Stat., 620), and other pro- 
 visions substituted therefor by section 2 of the 
 same act (40 Stat., 617), allowing pay, etc., 
 without enlistment.] 
 
 Apprentices at navy yards not enlisted 
 men. — Service as an apprentice in a navy 
 yard is not 8er^'ice as an enlisted man within 
 the meaning of the act of March 3, 1883 (22 
 Stat., 473), entitling officers to credit for pre- 
 vious service in the Army or Navy. (Davis v. 
 U. S.,28Ct. Cls.,21.) 
 
 There was no statute authorizing the employ- 
 ment of persons as apprentices in connection 
 with navy yards, and whatever was done in 
 that particular w^as under Na\'y regulations. 
 In the year 1852 the Navy Department adopted 
 certain regulations "for the admission of ap- 
 prentices into the navy yards of the United 
 States," under which the claimant became an 
 apprentice. Those regulations (which were 
 not the first on the subject) prescribed the 
 manner in which a boy might become an ap- 
 prentice in the navy yards by being examined 
 before a board. The applicant had to be over 
 fifteen and less than seventeen years of age. 
 
 538 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1417. 
 
 possessed of a good character, and having the 
 physical ability to perform the labor incident 
 to thesituation. (Davis t;. U. S., 28 Ct. Cls., 21.) 
 
 The regulations of 1852 [above referred to] 
 were in force at the time the claimant became an 
 apprentice, and were the authority on the part 
 of the naval officer to enter into the agreement 
 by which his relations were established and 
 upon wliich he now seeks a benefit under the act 
 of March 3, 1883 (22 Stat., 473). Theactof June 
 30, 1789 (1 Stat., 575), and all subsequent acts to 
 and including the act of March 3, 1837 (5 Stat., 
 153), had reference to the employment of boys 
 in the regular naval service on board ships 
 and not their employment in the navy yards as 
 pro\dded for in the regulations of 1852 and 
 former regulations. (Davis v. U. S., 28 Ct. 
 Cls., 21.) 
 
 The relation between the defendants and 
 claimant was established by the agreement 
 providing for the apprenticeship of the claim- 
 ant, which waa executed by his father and him 
 jointly with the agent of the defendants, and 
 which simply provided for the performance of 
 duty ordinarily incident to an indentured 
 apprentice. He waa not required to take an 
 oath, perform any naval or military duty, but 
 simply to well and truly serve the United 
 States, be obedient to all persons in authority 
 over him, and subservient to all laws and regu- 
 lations that might be established for the govern- 
 ment of navy yards. He was required to 
 furnish his own tools, board, clothing, and 
 medical attendance . The service which he was 
 to perform was not subject to the restraints, in- 
 conveniences, and powers incident to military 
 or naval service, but such restrictions as are 
 legally and ordinarily incident to the relation 
 of master and apprentice. No statute of the 
 United States had!^ provided for the enlistment 
 of men or boys to be employed in the navy 
 yards of the United States, and the regulations 
 did not provide for any such enlistment, if that 
 could be done by mere regulations. If the 
 claimant had failed to perform his duty and had 
 deserted from the service, it can not be said 
 that he would have been amenable to the laws 
 of war and liable to be shot for desertion. 
 (Davis -y. U. S., 28 Ct. Cls., 21.) 
 
 Section 1417 provides for the enlistment in 
 the Navy of "apprentices and boys;" sections 
 1418 and 1419 provide for the enlistment of 
 minors. Nowhere do we find in the statutes 
 any reference to the service of boys in the navy 
 yards spoken of as an enlistment in the Navy. 
 The service which boys as apprentices were 
 called upon to perform was on board ship. 
 (Davis V. U. S., 28 Ct. Cls., 21; see also 4 Op. 
 Atty. Gen., 89). 
 
 In the absence of any law providing for the 
 enlistment of boys into the Navy to be em- 
 ployed as apprentices in the navy yards, the 
 fact that claimant's connection with the service 
 was founded on the ordinary contract of appren- 
 ticeship, that he took no oath and was not sub- 
 ject to the performance of any military duty or 
 subject to the restrictions of military life, that 
 he was not amenable to the highest obligation 
 of a soldier — continued service, and that his 
 whole duty was the result of a contract or agree- 
 ment made by him and his father founded on 
 the regulations of the Navy, it is determined. 
 
 as a conclusion of law, that he does not come 
 within the act of March 3, 1883, 22 Stat., 473. 
 (Davis t;. U. S., 28 Ct. Cls., 21.) 
 
 A militiaman, when brought into the 
 service of the United States in accordance 
 with law, is an "enlisted man on the active 
 list" of the Navy within the meaning of laws 
 providing for payment of a gratuity to the bene- 
 ficiary of any enlisted man on the active list of 
 the Navy in case of the latter'a death from 
 causes not the result of his own misconduct. 
 The active force of the Navy is increased by 
 laws providing for the induction of the militia 
 into the service of the United States. (See 23 
 Comp. Dec, 36. But see act June 4, 1920 (41 
 Stat., 824), which excludes from the benefits 
 of death gratuity members of forces of the Navy 
 other than the Regular Navy and Marine Corps.) 
 
 Enlisted men of the Coast Guard. — The 
 Navy is made up of and embraces its compo- 
 nent parts; hence in law and in fact it em- 
 braces the Coast Guard in time of war just as 
 certainly as it does any other military force op- 
 erating under the orders of the Secretary of the 
 Navy. Accordingly the word ' ' Navy ' ' is broad 
 enough to include the Coast Guard in time of 
 war, service in the Coast Guard at such time is 
 service in the Navy, and enlisted men of the 
 Coast Guard in time of war are enlisted men of 
 the Navy. However, the word ' ' Navy ' ' as used 
 in a law, may have a broad or restricted mean- 
 ing, depending upon the context. As used in 
 the act of August 31, 1918, section 3 (40 Stat., 
 956), providing that "men registered under 
 the provisions of this act who have served in 
 the Navy of the United States shall, upon their 
 own application, be permitted to reenlistin the 
 naval or marine service of the United States 
 with and by the approval of the Secretary of 
 the Navy," it includes a registrant who served 
 in the Coast Guard in time of war. (File 
 28798-773, Nov. 22, 1918.) 
 
 Advancement of apprentices to warrant 
 officers. — When section 1417, Revised Statutes, 
 was reenacted in 1879 to read as above, special 
 inducements were offered to honorably dis- 
 charged boys to reenUst within three months 
 after so discharged. (See sec. 1573, R. S.) 
 These benefits, aa well as certain additional 
 inducements, have since been made applicable 
 to enUsted men or apprentices who reenlist 
 within foiu- months after being honorably dis- 
 charged. (See sec. 1573, R. S., as amended.) 
 The provision in section 1417, as reenacted, 
 limiting preference in appointment as warrant 
 officers to such apprentices or boys who reen- 
 list within three months after being honorably 
 discharged has remained unchanged. 
 
 By the Navy Regulations, 1913 (Art. R-3310), 
 it is provided, with reference to appointments 
 aa boatswains, gunners, machinista, and car- 
 penters, that such appointments shall be made 
 "only after competitive professional examina- 
 tions," and that "when candidates from the 
 naval service and from civil life possess equal 
 qualifications, preference shall be given to 
 those from the naval ser\dce." 
 
 As to term of enlistment, see note to section 
 1418, Revised Statutes. 
 
 As to appointment of warrant officers, see 
 further sections 1405-1407, Revised Statutes, 
 and notes thereto. 
 
 54641°— 22- 
 
 -8.5 
 
 539 
 
Sec. 1418. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Sec. 1418. [Enlistment, age and term of.] Boys between the ages of four- 
 teen and eighteen j-eai-s may be enlisted to serve in the Navy until they shall 
 arrive at the age of twenty-one years; other persons may be enlisted to servo 
 for a period not exceeding five years, unless sooner discharged by direction of 
 the President. 
 
 This section was expressly amended and re- 
 enacted to read as above by act of May 12, 
 1879 (21 Stat., 3), as amended by act of Feb- 
 ruary 23, 1881, section 2 (21 Stat., 338), the 
 amendment made by the latter act con- 
 sisting in substituting the word "fourteen" 
 for ''(ifteen" as used in the former act. 
 
 As originally enacted this section read as fol- 
 lows: "Sec. 1418. Boys between the ages 
 of sixteen and eighteen years may be en- 
 listed to serve in the Navy until they shall 
 arrive at the age of twenty-one years; other 
 persons may be enlisted to serve for a period 
 not exceeding five years, unless sooner 
 discharged by direction of the President." 
 [See § 1624; art. 19.]— (2 March, 1837, c. 
 21, s. 1, V. 5, p. 153; In re McNulty, 2 
 Lowell, 270.) 
 
 Other amendments to this section were made 
 by act of March 3, 1899, section 16 (30 Stat., 
 1008), which provided that " hereafter the 
 term of enlistment of all enlisted men of 
 the Navy shall be four years," and act 
 of August 22, 1912 (37 Stat., 330), which 
 provided that "the term of enlistment of 
 all enlisted men of the United States Navy 
 other than those who are enlisted during 
 minority shall be foiu" years," and made 
 further provision in the same act for ex- 
 tension of enUstments, prior to expiration 
 of the four-year term, for periods of one, 
 two, three, or four years, and for the dis- 
 charge of any enlisted man within thi'ee 
 months before the expiration of his term 
 of enhstment or extended enlistment, 
 "without prejudice to any right, privilege, 
 or benefit that he would have received, 
 except pay and allowances for the unex- 
 pired period not served, or to which he 
 would thereafter become entitled, had he 
 served his full term of enlistment or ex- 
 tended enlistment." By act April 25, 1917 
 (40 Stat., 38), extension of minority enlist- 
 ments in the Na\'y and Marine Corps was 
 authorized under similar conditions as pro- 
 vided by law for extending other enlist- 
 ments. By act of August 29, 1916 (39 Stat., 
 560), it was provided that enlisted men who 
 serve one year at sea shall, in time of peace, 
 if_ they so elect, be given an honorable 
 discharge without cost; and the same act 
 (39 Stat., 580) authorized the furlough of 
 enUsted men, without pay, for the imex- 
 pired portion of enlistment, in lieu of dis- 
 charge by purchase, subject to recall in time 
 of emergency. So much of said act as au- 
 thorized honorable discharges after one 
 year's service at sea was repealed by act of 
 March 4, 1917 (39 Stat., 1171). By act of 
 August 29, 1916 (39 Stat., 586), it was pro- 
 vided that the Secretary of the Na\'y shall 
 establish regulations governing the term 
 of enlistment of the enlisted men of the 
 
 Flying Corps. By act of May 22, 1917, 
 section 3 (40 Stat., 85), it was provided 
 "that enlistments in the Navy and Marine 
 Corps, during such time as the United 
 States may be at war, shall be for four years, 
 or for such shorter period or periods as the 
 President may prescribe, or for the period 
 of the present war." By act of July 11, 
 1919 (41 Stat., 134), it was pro\ided that 
 "until June 30, 1920, enlistments in the 
 Navy may be for terms of two, three, or 
 four years, and all laws now applicable to 
 four year enlistments shall apply, under 
 such regulations as may be prescribed by 
 the Secretary of the Navy, to enlistments 
 for a shorter period with proportionate 
 benefits upon discharge and reenlistment." 
 By act of June 4, 1920, section 7 (41 Stat., 
 836), the provision of the act last quoted 
 was reenacted without limitation as to 
 time. 
 
 Detention of men after expiration of enhstment, 
 or their reentering to serve until their 
 return to the United States, is authorized 
 by section 1422, Revised Statutes. 
 
 Detention of men after expiration of enlistment 
 to make good time lost on account of injury, 
 sickness or disease resulting from intem- 
 perate use of drugs or alcoholic Uquors or 
 other misconduct. (Act Aug. 29, 1916, 39 
 Stat., 580, as amended by act July 1, 1918, 
 40 Stat., 717.) 
 
 Discharge of minors who swear falsely as to 
 their age is required by the following pro- 
 vision in the act of March 3, 1915 (38 Stat., 
 931): ''Provided, That hereafter no part of 
 any appropriation for the naval service 
 shall be expended in recruiting seamen, 
 ordinary seamen, or apprentice seamen, 
 imless in case of minors, a certificate of 
 birth or a verified written statement by the 
 parents, or either of them, or in case of their 
 death a verified written statement by the 
 legal guardian, be first furnished to the 
 recruiting officer, showing applicant to be 
 of age required by naval regulations, which 
 shall be presented with the appUcation for 
 enlistment; except in cases where such cer- 
 tificate is unobtainable, enlistment may be 
 made when the recruiting officer is con- 
 vinced that oath of applicant as to age is 
 credible; but when it is afterwards found, 
 upon evidence satisfactory to the Navy 
 Department, that recruit has sworn falsely 
 as to age, and is under eighteen years of age 
 at the time of enlistment, he shall, upon 
 request of either parent, or, in case of their 
 death, by the legal guardian, be released 
 from ser\dce in the Navy, upon payment of 
 full cost of first outfit, unless, in any given 
 case, the Secretary, in his discretion, shall 
 relieve said recruit of such payment." 
 Provisions somewhat similar to this, but 
 
 540 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1418. 
 
 applicable to the fiscal year only, had been 
 contained in the annual naval appropria- 
 tion act for previous years, under "Bureau 
 of Navigation." 
 Enlistment of minors under 14 years of age is 
 punishable under section 1624, Re\Tsed 
 Statutes, article 19, as amended. 
 Oath of allegiance to be taken by enlisted men 
 of the Navy is that which was prescribed 
 for the Army by the law in force on March 3, 
 1899. (Act Mar. 3, 1899, sec. 25, 30 Stat., 
 1009.) The oath then prescribed for en- 
 listed men of the Army was contained in 
 section 1342, R. S., art. 2, as follows: "I, 
 A. B., do solemnly swear (or affirm) that 
 I will bear true faith and allegiance to the 
 United States of America; that I will serve 
 them honestly and faithfully against all 
 their enemies whomsoever; and that I will 
 obey the orders of the President of the 
 United States, and the orders of the officers 
 appointed over me, according to the rides 
 and articles of war." 
 Punishment of fraudulent enlistment is pre- 
 scribed by act of March 3, 1893 (27 Stat., 
 716), amending section 1624, Revised Stat- 
 utes, article 22. 
 Reenlistment of men with special benefits 
 within fom" months after their discharge is 
 provided for by section 1573, Revised 
 Statutes, and amendments noted there- 
 under. See also section 1417, Revised 
 Statutes, as amended. By act of August 
 29, 1916 (39 Stat., 590), it was provided 
 that enlisted men who enroll in the Fleet 
 Naval Reserve within four months after, 
 their discharge from the regular service, 
 and who reenlist in the regular service 
 within four months after discharge from 
 such reserve, shall have the same benefits 
 as though they had reenlisted in the regular 
 service within four months after discharge 
 therefrom. 
 Refund of enlistment bounty where men are 
 discharged within six months of enlistment, 
 for causes other than disability incurred in 
 line of duty, is provided for by act of June 
 29, 1906 (34 Stat. , 556) ; and the Secretary of 
 the Navy may require similar refund in 
 cases where men are discharged during the 
 first year of enlistment by request, for in- 
 aptitude, as undesirable, or for disability 
 not incurred in line of duty. (Act Mar. 2, 
 1907, 34 Stat., 1176.) The furnishing of 
 such bounty on enlistment was authorized 
 by act of March 1, 1889 (25 Stat., 781), and 
 amendments thereto. (See sec. 1569, R. S.) 
 Refund of uniform gratuity by members 
 of the Naval Reserve Force severing their 
 connection with the service without com- 
 pulsion on the part of the Government is 
 provided for by act of August 29, 1916 (39 
 Stat., 589), as amended by act of July 1, 
 1918 (40 Stat., 711). 
 Term of enlistment in the Marine Corps is pre- 
 scribed by section 1608 of the Revised 
 Statutes and amendments thereto. 
 Term of enlistment. — Section 1418 of the 
 Revised Statutes, fixing the term of enlist- 
 ment during minority in the case of persons en- 
 listed in the Navy before arri^^ng at the age of 
 18 yeai's, and for not exceeding five years in the 
 
 case of other persons, was amended by section 
 16 of the Na\'y personnel act of March 3, 1899, 
 which provided "that hereafter the term of 
 enlistment of all enlisted men of the Navy shall 
 be four years." (5 Comp. Dec, 929.) 
 
 The act of March 3, 1899 (30 Stat., 1008), 
 makes the term of enlistment for all persons 
 four years. (Thomas v. Winne, 122 Fed. Rep., 
 395). 
 
 Section 1418, as amended by act of March 3, 
 1899, section 16 (30 Stat., 1008), provided that 
 boys between 14 and 18 years of age may be en- 
 listed in the Navy until they arrive at the age of 
 21, while other persons may be enlisted for a 
 term not exceeding four years. (Ex parte 
 Lisk, 145 Fed. Rep., 860.) 
 
 There is no provision of law for the enlist- 
 ment for four years of anyone under 18 years of 
 age. However, where a minor of 15 years 
 fraudulently enlists for a term of four years he 
 may be held to serve out that term and need 
 not be required with consent of his father to 
 agree to remain in the service during minority. 
 The enlistment is a valid one unless avoided by 
 the United States. (File 24368-7, Feb. 14, 
 1912.) 
 
 Prior to the enactment of March 3, 1899, 
 section 16 (30 Stat., 1008), the enlistment of 
 men in the Navy, under section 1418, was for a 
 period not to exceed five years, but the enlist- 
 ment period had been for three y^ars, and 
 under section 1426 honorable discharges were 
 granted to men enlisting for three years, and 
 upon reenlistment for three years within three 
 months after discharge they became entitled to 
 the gratuity provided by section 1573. (16 
 Comp. Dec, 815.) 
 
 Section 1418, Revised Statutes, required en- 
 listments in the Navy to be for not exceeding 
 five years, and section 1608 declared that en- 
 listments in the Marine Corps should be for not 
 less than five years. Thus it will be seen that 
 the statutes fixed a maximum term of enlist- 
 ment in the Navy, and a minimiun term of en- " 
 listment in the Marine Corps, each at five years. 
 At the same time, honorable discharges were 
 granted to those who had fulfilled the three- 
 year enlistment in the Navy (sec.1426, R. S.). 
 By act of March 3, 1899, section 16(30 Stat., 
 1008), the term of enlistment in the Navy waa 
 changed to four years, and by act of March 3, 
 1901 (31 Stat., 1132), enlistment in the Marine 
 Corps was reduced to not less than four years. 
 (In re Brykczjmski, 207 Fed. Rep., 813.) 
 
 The laws relating to the granting of honorable 
 discharges, and to extra pay on reenlisting after 
 such discharges within a certain time, as well 
 as the regulation granting an increase of month- 
 ly pay on reenlisting within three months after 
 an honorable discharge, were based upon en- 
 listment for not less than three years. The in- 
 crease in monthly pay for reenlisting is now 
 fixed by law, instead of by Navy regulation 
 (sec 1573, R. S., as amended by sec 16, Navy 
 personnel act Mar. 3, 1899). Accordingly a 
 man, having served out his previous enlistment 
 of three years, so as to entitle him to an honor- 
 able discharge and having enlisted for the 
 regular term of four years within the time pre- 
 scribed, comes within the operation of the new 
 law and is entitled under his new enlistment 
 to the four months' reenlistment pay and the 
 
 Ml 
 
Sec. 1418. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 increase per month to the rate of pay he was 
 receiving when discharged, as authorized by 
 the amended section 1573, instead of three 
 months' reenlistment pay and the addition of$l 
 per month as uiuU-r the law and regulations 
 prior to the passage of the Navy personnel act. 
 (5("omp. Dec., 929.) 
 
 Detention of men after expiration of 
 enlistment. — Enlistments in our service are 
 reciuired by law to be for a prescribed period, 
 the last day of the term being as much fixed by 
 the contract as the first. Consequently, unless 
 there exists some law when the contract is en- 
 tered into providing for a contingent prolonga- 
 tion of the term; or unless the soldier before 
 the term is up consents to an extension thereof, 
 with the last day of the term his engagement 
 necessarily expires. (15 Op. Atty. Gen., 161; 
 12 Comp. Dec, 342; compare Op. Atty. Gen., 
 Feb. 27, 1922, noted below.) 
 
 A man whose enlistment has expired, and in 
 whose case there is no legal authority for retain- 
 ing him in the service in point of law is entirely 
 discharged, although no discharge certificate is 
 issued to him. Nevertheless, if he voluntarily 
 remain in a place subject to naval jurisdiction 
 to await a certificate of discharge or for other 
 purposes, he would be liable in a limited degree 
 to the regulations necessary to the peace and 
 subordination of the garrison, and might be 
 imprisoned if necessary to prevent unlawful 
 \iolence on his part, and to keep him until he 
 could be placed in the hands of the proper civil 
 authorities having jurisdiction to punish him. 
 (U.S. 1,1. Travers, 28 Fed. Cas. No. 16537, noted 
 more fully under Constitution, Art. I, sec. 8, 
 clause 14, "Persons not subject to jurisdic- 
 tion of Federal courts-martial.") 
 
 It would seem that where a man has com- 
 pleted his period of enlistment and earned an 
 honorable discharge, if a certificate of discharge 
 is inadvertently not issued at the time, it may 
 thereafter be issued as of the date he was en- 
 titled thereto, and his continuance in the 
 service, under a purported extension of enlist- 
 ment for four years, which is not valid as an 
 extension, may be regarded as a reenlistment 
 for four years. (File 7657-295, July 27, 1915; 
 butseeComp.Dec, Aug. 14, 1915,174 S.and A. 
 Memo., 3759; and compare file 7657-65, noted 
 under sec. 1422, R. S., "Detention of enlisted 
 man awaiting discharge papers.") 
 
 When an enlisted man voluntarily continued 
 to serve after expiration of his enlistment with- 
 out being discharged and reenlisted, it will be 
 held to be a continuance of his enlistment upon 
 the same terms as before, but for no definite 
 period. (26 Op. Atty. Gen., 319, noted more 
 fully under sec. 1408, R. S., "Status of mates 
 when not discharged upon expiration of enlist- 
 ment.") 
 
 An enlisted man, enlisted for minority, ex- 
 tended his enlistment for periods aggregating 
 two years. Such extension was not authorized 
 in the case of persons enlisted for minority. 
 He should therefore be considered as in the 
 service under his original enlistment from 
 which he has not been discharged and entitled 
 to the same rate of pay thereunder as if no 
 attempted extension of enlistment had been 
 made, but he is not entitled to the additional 
 pay allowed by section 1422, Revised Statutes. 
 
 (Comp. Dec, June 6, 1914, 160 S.and A. Memo , 
 3255.) 
 
 The contract of an enlisted man in the Navy 
 calls for four years actual service — not for 
 service during a term of four years. Nothing is 
 said in the contract respecting continuity of 
 the service, but, on the contrary, article 879, 
 Navy Regulations [1905] provides that "enlisted 
 men who are apprehended or who surrender 
 themselves as deserters or stragglers from the 
 Navy shall not be entitled to discharge until 
 they have served out the period of their un- 
 authorized absence." The Comptroller has 
 said, with regard to this provision (12 Comp. 
 Dec, 342): "I do not think that this require- 
 ment has the effect of extending his term of 
 enlistment, but requires that he shall be held 
 in the service after the expiration of his term of 
 enlistment." That this w^as not the intention 
 of the regulation in question, however, would 
 seem to be clear from its further provision: 
 "This does not apply to those enlisted for the 
 period of their minoritv." (File 3031-11, July 
 15, 1907.) 
 
 "The Department decided, May 12, 1908 
 [file 2471-5], that the term of enlistment in 
 the Navy having been fixed by law at four 
 years, no authority existed for retaining en- 
 listed men in the Navy after expiration of 
 enlistment for the purpose of making up time 
 lost by absence. Article 879, Navy Regula- 
 tions, 1905, which required enlisted men of the 
 Navy to serve out the period of their unauthor- 
 ized absence before being entitled to discharge, 
 was accordingly revoked by the Secretary of 
 the Navy with the approval of the President." 
 (File 26251-6297:2, July 10, 1913; compare Op. 
 Atty. Gen., Feb. 27 ,1922, noted below.) 
 
 "As enlistments in the Marine Corps are 
 governed by the laws and regulations relating 
 to the Navy, the Department holds that Marine 
 Corps General Order No. 40, of October 19, 
 1909 [concerning the detention of marines 
 after expiration of enlistment to make good 
 time lost by unauthorized absence], is without 
 sanction of and in fact contrary to the require- 
 ments of law and that the practice of requiring 
 men to make up time lost by absence either 
 in accordance \Adth article 48 of the Articles of 
 War or otherwise will immediately be discon- 
 tinued." (File 26251-6297:2, July 10, 1913; 
 compare Comp. Dec, Dec. 4, 1905, 58 S.and A. 
 Memo., 30; and Op. Atty. Gen., Feb. 27, 1922, 
 noted below.) 
 
 A period of desertion must be deducted from 
 the contract period of enlistment, and the latter 
 accordingly extended until the man has fully 
 served the term for which he contracted. The 
 man's contract is to "serve" for a certain period 
 and can not be perfonned by desertion. (Op. 
 Atty. Gen.. Feb. 27. 1922, fi"le 26251-26615:8.) 
 
 The Supreme Court of the United States has 
 specifically held that the detention of enlisted 
 men in the Marine Corps after expiration of 
 enlistment is governed by laws relating to the 
 Navy. [See notes to sections 1422 and 1621, 
 Revised Statutes.] The fact that pay of the 
 Marine Corps is assimilated by section 1612, Re- 
 vised Statutes, to the Army, and that under 
 certain circumstances enlisted men of the Army 
 may by law be retained to make good time lost by 
 unauthorized absence, does not mean that the 
 
 542 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1418- 
 
 term of enlistment in the Marine Corps must be 
 changed to conform to the conditions in the 
 Army. (File 26251-6297:4, Aug. 19, 1913; see 
 also file 26251-6297:6, Nov. 8, 1913; 26251-6287:7, 
 May 18, 1914; Comp. Dec, June 3, 1914, 160 
 S. and A. Memo., 3250.) 
 
 Article 879, Navy Regulations, 1905, author- 
 izing the retention of enlisted men who axe 
 apprehended or who surrender themselves as 
 deserters or stragglers until they have served 
 out the period of their unauthorized absence, 
 was stricken from the Navy Regulations, with 
 the approval of the President, on May 20, 1908. 
 A man's enlistment expired February 9, 1908, 
 while in desertion. Thereafter, he was con- 
 victed of desertion and sentenced to a period 
 of confinement. Prior to expiration of his con- 
 finement he was inadvertently restored to 
 duty on probation: Held, that the Secretary 
 of tlae Navy, having convened the court and 
 having approved and confirmed its proceed- 
 ings, possessed the power to remit the for- 
 feitures mentioned in its sentence, in whole or 
 in part less than the whole, and could make 
 such remission dependent upon any condition 
 consistent with law (citing 13 Comp. Dec, 726); 
 it is not necessary to decide in this case whether, 
 in the absence of a regulation, the Secretary 
 of the Navy may hold a man in service to make 
 good time lost by desertion; in this case the 
 prisoner was actually held in service /o?- duty, 
 and while so held he was entitled to the pay 
 of the rating in which he was held. (Comp. 
 Dec, Nov. 20, 1908, 93 S. and A. Memo., 896.) 
 
 An enlisted man serving sentence of court- 
 martial was placed on probation. Dimng the 
 probationary period his enlistment expired. 
 He continued to serve, vohmtarily, without re- 
 enlisting or expressly extending his enlistment. 
 While in this status he committed an offense 
 for which he was tried by court-martial and 
 sentenced to imprisonment. Held, that the 
 court-martial had jurisdiction and he is legally 
 held to serve out the sentence, but that so 
 much of the original sentence as remained un- 
 executed shoxild be regarded as fully remitted, 
 his conduct from the time he was placed on 
 probation until the expiration of his enlist- 
 ment having been satisfactory. (File 26251- 
 17942:2, May 5, 1919, citing 26 Op. Atty. Gen., 
 319, Comp. Dec, Nov. 20, 1918, 93 S. and A. 
 Memo., 896, etc.) 
 
 The contract of enlistment in the Navy is 
 not merely for four years, but for four years and 
 until discharged. "A soldier can not discharge 
 himself," and imtil he has been discharged by 
 competent authority his original contract con- 
 tinues binding upon him. An examination of 
 15 Op. Atty. Gen., 152, 161 (above noted), 
 shows that the question was not specifically 
 presented to the Attorney General for deter- 
 mination in that case, and was not thoroughly 
 considered by him. Certainly, the Attorney 
 General could not have meant to hold that an 
 enlisted man would be justified in leaving his 
 command immediately upon expiration of his 
 enlistment, regardless of the exigencies of the 
 service, or other sufficient cause which might, 
 in the opinion of his superiors, justify his re- 
 tention for a reasonable period. The Navy 
 Regulations recognize that delays may occur 
 in discharging men after the expiration of en- 
 
 listment, by providing that the commanding 
 officer "shall make all necessary efforts to pre- 
 vent delay in discharging men whose terms of 
 service have expired" (Art. 543, Navy Regs., 
 1909), and the Comptroller of the Treasury has re- 
 peatedly decided that enlisted men are entitled 
 to pay until their discharges are issued and de- 
 livered, or until such action is taken as to make 
 the man legally chargeable with notice of his 
 discharge, notwithstanding that pay for service 
 after expiration of enlistment may not be ex- 
 pressly provided for by any statutory enact- 
 ment. (See 2 Comp. Dec, 94, 95; 7 Comp. 
 Dec, 391; and Comp. Dig., 1902, p. 146, "Dis- 
 charge, time and place of taking effect.") 
 Of course the commanding officer would not 
 be justified in arbitrarily detaining an enlisted 
 man without sufficient cause, and in such a 
 case the man would be entitled to secm-e his 
 release by force, if necessary, even to the point 
 of taking the life of any one who might en- 
 deavor to prevent him, as held by Mr. Justice 
 Story, in U. S. v. Travers, 2 Wh. Cr. 509, 
 28 Fed. Cas. No. 16537. (File 26251-5447, 
 Dec 8, 1911.) 
 
 The regulations for many years have con- 
 tained a provision that the pay of an enlisted 
 man under treatment in a hospital on a foreign 
 station "continues imtil he is regularly dis- 
 charged from the service, even after his term 
 of enlistment has expired." (File 26251-5447, 
 Dec 8, 1911, citing art. 792, par. 7, Navy 
 Regs., 1909; Comp. Dec, Aug. 18, 1903, 31 
 S. and A. Memo., 242. See also, art. R-3582 (7), 
 Navy Regs., 1913.) 
 
 An enlisted man may^ be detained in the 
 service after the expiration of his enlistment 
 for the purpose of disciplinary proceedings 
 against him for offenses committed prior to the 
 expiration of his enlistment; in such case, not 
 having been discharged from his contract of 
 enlistment, and being detained fo^" sufficient 
 cause, the terms of his contract continue 
 binding upon him and his status as an enlisted 
 man of the Navy is unchanged. Should he, 
 dining the period of such detention, leave the 
 service without permission and with the ob- 
 vious intention of not returning, he might be 
 regarded as a deserter, but his offense would 
 more properly be charged as breaking arrest, 
 and escape. (File 26251-5447; compare note 
 to sec 1422, II. S., and note to Constitution, 
 Art. I, sec. 8, clause 14, "Persons subject to 
 jurisdiction of Federal courts-martial." See 
 also file 26509-259, Mar. 12, 1918, recommend- 
 ing legislation for trial by court-martial of 
 prisoners for offenses committed after expira- 
 tion of enlistment. 
 
 For other cases, see note to section 1422, 
 Revised Statutes. 
 
 Existing contracts of enlistment may 
 be extended by Congress. — The decision 
 rendered by the Supreme Court in Wilkes v. 
 Dinsman (7 How., 88, 126) expressly held that 
 an enlisted man is subject to any new laws 
 which may be enacted for the better govern- 
 ment of the Navy, even where such laws extend 
 the period of his original contract of enlist- 
 ment. The Attorney Genei-al, something more 
 than 25 years after this decision of the Supreme 
 Court, held that the term of enlistment could 
 be extended only under authority of some law 
 
 543 
 
Sec. 1418. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 which exiBts "when the contract is entered 
 into." (15 Op- Atty. Gen., 152, 161.) The 
 question presented to the Attorney General 
 did not require any opinion as to the conditions 
 under wliich the contract of enlistment might 
 be extended beyond the original term, so the 
 above quotation from his opinion is not to be 
 accorded the weight due to a formal determi- 
 nation of a doubtful question. (File 26251- 
 5447 Dec. 8 1911.) 
 
 By act of June 3, 1916 (39 Stat., 187, sec. 31), it 
 was provided that "all enlistments in the Regu- 
 lar Army, including those in the Regular Army 
 Reserve, which are in force on the date of the 
 outbreak of war, shall continue in force for one 
 year, imless sooner terminated by order of the 
 Secretary of War, but nothing herein shall be 
 construed to shorten the time of enlistment 
 prescribed." 
 
 By the Selective Draft Act of May 18, 1917, 
 section 7 (40 Stat., 81), it was provided that "all 
 enlistments, including those in the Regular 
 Army Reserve, which are in force on the date of 
 the approval of this act and which would termi- 
 nate during the emergency, shall continue in 
 force during the emergency unless sooner dis- 
 charged; but nothing herein contained shall be 
 construed to shorten the period of any existing 
 enlistment." 
 
 [In 23 Comp. Dec, 45, it was held that an 
 enlisted man of the Marine Corps may lawfully 
 be paid travel allowance on discharge only at 
 the rate authorized by laws in effect on date of 
 discharge, notwithstanding the fact that the 
 law in force at the time of his enlistment au- 
 thorized pajonent of such allowance at a higher 
 rate; ancfin 23 Comp. Dec, 33, it was held that 
 enlisted men of the Army must be demoted in 
 rank when required by laws reorganizing the 
 Army in order to comply with the pro\'isions 
 of such laws reducing the number of men in the 
 higher rank, notwithstanding that they are 
 de8er\ing men and that their demotion is not 
 believed by the War Department to be within 
 the spirit of the new law.] 
 
 Extension of enlistments in Marine 
 Corps.— The act of August 22, 1912 (37 Stat., 
 331), authorizing enlisted men of the Navy, 
 by their voluntary agreement, to extend their 
 enlistmentsforaperiodofone, two, three, or four 
 years "from the date of expiration of the then 
 existing four-year term of enlistment," applies 
 to the Marine Corps by virtue of section 1621, 
 Revised Statutes, which makes the Marine 
 Corps subject to the laws established for the 
 government of the Navy; and the Supreme 
 Court decision in the case of Wilkes v. Dins- 
 man (7 How., 88), in which it was held that the 
 law now embodied in section 1422, Re\'ised 
 Statutes, authorizing the detention of persons 
 enlisted for the Navy after the expiration of 
 their enlistment under certain conditions, au- 
 thorized the detention of enlisted men of the 
 Marine Corps. The conclusion in this case 
 might also be based upon the naval appropria- 
 tion act of March 3, 1901 (31 Stat., 1132), pro- 
 viding that "hereafter enlistments into the 
 Marine Corps shall be for a period of not less 
 than four years." In the absence of a law ex- 
 pressly providing for the extension of enlist- 
 ments in the Navy and made applicable to the 
 
 Marine Corps by section 1621, Revised Stat- 
 utes, it might well be argued that the extension 
 of enlistments in the Marine Corps by voluntary 
 agreement of the man concerned would be 
 authorized under the foregoing enactment of 
 1901, which does not fix any maximum term of 
 enlistment. (File 26507-214:8, Apr. 5, 1915; 23 
 Comp. Dec, 349; compare 23 Comp. Dec, 22; 
 see also act Apr. 25, 1917, 40 Stac. 88, au- 
 thorizing extension of minority enlistments 
 in the Marine Corps.) 
 
 Minors over 18 may be enlisted without 
 consent of parents or guardians. — Under 
 the act of Congress of March 2, 1837, section 1 
 (5 Stat., 153) [afterwards embodied in sections 
 1418 and 1419, Revised Statutes], a minor of 
 the age of 18 can enlist in the Navy without the 
 consent of his parents or guardian. (Rush v. 
 Watson, 28 Fed. Cas. No. 16650a.) 
 
 The enlistment of minors in the naval service 
 above the age of 18 is valid, without the con- 
 sent of the parents or guardian. (12 Op. Atty. 
 Gen., 2.58.) 
 
 The period at which persons reach their 
 majority and become sui juris with respect to 
 the ordinary affairs of life can not abridge the 
 power of the General GoA^ernment to prescribe 
 the rules and conditions under which volun- 
 tary or compulsory services are to be rendered 
 by citizens. (21 Op. Atty. Gen., 327.) 
 
 The phrase "other persons" in the act of 
 March 2, 1837 [section 1418, Revised Statutes], 
 includes minors above 18, as well as men of full 
 age. (21 Op. Atty. Gen., 327.) 
 
 The enlistment of minors in the naval serv- 
 ice is lawful and can not be set aside at the 
 instance of their parents, except in so far as 
 such enlistments are forbidden by Congress. 
 (In re Dovle, 18 Fed. Rep., 369, citing U. S. v. 
 Bainbridge, 1 Mas., 71 [Fed. Cas. No. 14497]; In 
 re Roberts, 2 Hall, L. J., 192; Com. v. Barker, 5 
 Bin., 423; Ex parte Browne, 5 Cranch, C. C., 
 554 [Fed. Cas. No. 1972].) 
 
 Neither section 1419, Revised Statutes, nor 
 any other law requires the consent of parents 
 and guardians for the enlistment of minors over 
 18 in the Navy. It is clear t;hat Congress has 
 authorized the enlistment in the Navy of 
 minors over 18, and that the consent of parents 
 and guardians is not necessary to make the en- 
 listment valid. (21 Op. Atty. Gen., 327.) 
 
 If a statute authorizes a minor by enlistment 
 to bind himself during his minority, he can 
 bind hinself for a further period. (21 Op. 
 Attv. Gen., 327.) 
 
 Under sections 1418, 1419, and 1624 (art. 19), 
 ReAdsed Statutes, relating to enlistments in 
 the Navy, which prohibited the enlistment of 
 boys under the age of 16 [now 14], but per- 
 mitted the enlistment of boys between the ages 
 of 16 and 18 [now 14 and 18] Avith the consent 
 of their parents or guardian until they shall 
 arriA^e at the age of 21, and proAdded for the 
 enlistment of "other persons" for terms not 
 exceeding fiA^e years, the consent of the parents 
 or guardian of a minor over the age of 18 is not 
 essential to his valid enlistment,^ and he can 
 not be discharged from such enlistment by a 
 court on a writ of habeas corpus at suit of his 
 parents or guardian. (In re Norton, 98 Fed. 
 Rep., 606.) 
 
 544 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1418. 
 
 Section 1418 provides that boys between the 
 ages of 14 and 18 may be enlisted to serve in 
 the Navy until they shall reach 21; other per- 
 sons may be enlisted to serve for a period not 
 exceeding five years, etc.; section 1419 pro- 
 \T.des that minors between 14 and 18 shall 
 not be enlisted without the consent of their 
 parents or guardians; section 1420 provides 
 that no minor under the age of 14 shall be en- 
 listed : Held, that a minor between the ages of 
 18 and 21 may be enlisted without the consent 
 of parents or guardian, being included in the 
 term ' 'other persons ' ' in sec tion 1418 . (Thomas 
 V. Winne, 122 Fed. Rep., 395.) 
 
 A minor who, at the age of 19, with the con- 
 sent of his father, enlisted in the Navy has not 
 the right, on coming of age, to demand his dis- 
 charge under the rule which applies to hie 
 ordinary civil contracts. (21 Op. Atty. Gen., 
 327, further holding that consent of parents or 
 guardian is not necessary to enlistment of 
 minors who are over 18. Compare Ex parte 
 Brown, 4 Fed. Cas. No. 1972.) 
 
 For other cases, see note to section 761, Re- 
 vised Statutes. 
 
 Minority enlistments in Marine Corps 
 governed, by Navy laws. — The Marine Corps 
 is part of the United States naval service, 
 in which minora over 18 years of age may be 
 enlisted, under sections 1608 and 1418, Re- 
 vised Statutes, without the consent of their 
 parents or guardians. The limitations of sec- 
 tions 1418 and 1419 undoubtedly apply to en- 
 listments in the Marine Corps, under section 
 1008; but these limitations do not aid the peti- 
 tioner in this case, since the only restraint is in 
 regard to enlistments of persons under the age 
 of 18 years, while Corporal Doyle in the present 
 case was between 19 and 20 at the time of his 
 enlistment. (In re Doyle, IS Fed. Rep., 369.) 
 
 The restrictions of section 1117, Revised 
 Statutes, apply only to enlistments in the 
 "Army" under Title XIV. (In re Doyle, 18 
 Fed. Rep., 369.) 
 
 The Marine Corps is not an independent 
 organization, but is a part of the Navy rather 
 than of the Army; and sections 1418, 1419, 
 Re\T.sed Statutes, which, taken together, 
 authorize the enlistment of minors over 18 
 years of age to serve in the Navy without the 
 consent of their parents or guardians, apply to 
 enlistment in the Marine Corps as well; so that 
 a minor who has enlisted in the Marine Corps 
 when over 18 years of age will not be discharged 
 from the custody of the officers of the Marine 
 Corps in habeas corpus proceedings brought by 
 his father. (Elliott v. Harris, 24 App. D. C, 
 11, overruling In re Shugrue, 3 Mackey (D. C.) 
 325, as being "in manifest conflict with the 
 principle upon which the subsequent case of 
 United States v. Dunn [120 U. S., 249] was 
 decided by the Supreme Court of the United 
 States.") 
 
 The Marine Corps of the United States is not 
 a part of the Navy, and enlistments therein are 
 not governed by the statutes relating to enlist- 
 ments in the Navy, but by regulations pre- 
 scribed by the Secretary of the Navy, under 
 whose government and control such corps is 
 primarily placed; and such officer having pre- 
 scribed in the published regulations of his de- 
 partment that ' ' the regulations for the recruit- 
 
 ing service of the Army shall be applied to the 
 recruiting service of the Marine Corps as far as 
 practicable," the enlistment of minors therein 
 is governed by the statutory provisions relating 
 to Army enlistments and no person under the 
 age of 21 years can lawfully enlist without the 
 consent of his parents or guardian, as required 
 by Revised Statutes, section 1117. (McCalla v. 
 Facer, 144 Fed. Rep., 61, citing and following 
 In re Shugrue, 3 Mackey (D. C), 324, but over- 
 looking the fact that the case cited had been 
 overruled by the Court of Appeals of the Dis- 
 trict of Columbia in Elliott v. Harris, 24 App. 
 D. C, 11.) 
 
 For other cases, see note to section 1621, Re- 
 vised Statutes, covering status of Marine Corps; 
 see also notes to sections 761 and 1422, Revised 
 Statutes. 
 
 Policy of Congress to encourage enlist- 
 ment of minors.— The law [March 1, 1889, 25 
 Stat., 781] providing clothing bounty on en- 
 listment, did not intend that the Secretary of 
 the Navy should have such discretionary power 
 with respect to furnishing the bounty as would 
 enable him to furnish it in one case and in 
 a.nother case decline to furnish it; but should be 
 construed as imposing upon the Secretary of the 
 Navy an imperative obligation and not merely 
 discretionary power. The whole purpose of 
 the act is to "encourage the enlistment of boys 
 as apprentices in the U. S. Navy," and upon 
 the Secretary of the Navy is imposed the duty 
 of executing the provisions of the statute. (25 
 Op. Atty. Gen., 270.) 
 
 Certificate required prior to enlistment 
 of minor. — WTiere an applicant is "obviously" 
 beyond 18 years of age, a written statement of 
 the medical officer of the recruiting party to 
 that effect should be accepted in lieu of the 
 certificate required by the act of June 29, 1906. 
 (File 1689-5, Aug. 25, 1906. The act cited 
 prohibited enlistment of any applicant "unless 
 a certificate of biith or written evidence, other 
 than his own statement, satisfactory to the re- 
 cruiting officer, showing the applicant to be 
 of age required by naval regulations, shall be 
 presented with the application for enlistment." 
 The present law is contained in the act of Mar. 
 3, 1915, noted above, under this section.) 
 
 Minor is "enlisted man." — A minor en- 
 listed in the Navy din-ing the period of his 
 minority is an "enlisted man" in the Navy 
 within the meaning of the act of August 22, 
 1912 (37 Stat., 330), providing for the discharge 
 of any enlisted man within three months prior 
 to expiration of enlistment. (20 Comp. Dec, 
 429.) 
 
 The statute in making provision for the 
 enlistment of persona under age, makes it 
 competent for any such person to bind himself 
 by enlisting and in respect to that contract or 
 enlistment he is to be regarded as an adult and 
 competent to do all acts within the purview of 
 the statute aa fully as if he were a person of full 
 age. It has been decided that an enlisted man 
 haa a right to make an agreement with the 
 Government waiving his claim to travel allow- 
 ance on discharge, when that contract ia made 
 at the time he ia about to be discharged (citing 
 Comp. Dec, Oct. 8, 1901, MS. Dec, vol. 19, 
 p. 70). If the claimant is to be regarded as of 
 full age in dealing with all matters connected 
 
 645 
 
Sec. 1418. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 with his enlistment, and an adult can waive 
 his right to travel allowance, it follows that he 
 can do so. The power to enlist being conferred, 
 all the incidental powers necessarily belonging 
 to a person in that situation with reference to 
 his enlistment naturally follow. (9 Comp. 
 Dec, 5.) 
 
 "Apprentice seamen may be enlisted be- 
 tween the ages of 17 and 25. Those below 18 
 are enlisted during minority, or until they 
 become 21 years of age. Those 18 years of 
 age or over are enlisted for four years. There 
 are several other rates in which those aa young 
 as 18 may be enlisted. (Navy Regs., 1913, art. 
 R-3525.) ^Tien enlisted apprentice .seamen 
 are sent to training stations where they are 
 given a special course of instruction, at the 
 termination of which they are transferred to 
 and become a part of the regular complements 
 of cruising vessels in the Navy, and may be 
 promoted to higher ratings. No distinction 
 on account of duties or pay is made between 
 the apprentice seamen who enlist during mi- 
 nority and those who enlist for four years, 
 nor is any such distinction made on account of 
 their being under or over 21 years of age." 
 (20 Comp. Dec, 409.) 
 
 "The phrase, 'enlisted men,' has generally 
 been used and understood to mean all those 
 who enlist in the Navy, whether under or over 
 21 years of age, as distinguished from the 
 officers who are appointed or commissioned. 
 In other words, the entire enlisted force in the 
 Navy are generally referred to and described 
 as enlisted men." (20 Comp. Dec, 409.) 
 
 The enlistment in the Navy of boys between 
 14 and 18 years of age until they shall arrive 
 at the age of 21 years is provided for by section 
 1418, Revised Statutes, as amended by the act 
 of J'ebruary 23, 1881 (21 Stat., 338). In any 
 case when an apprentice seaman is discharged 
 on account of expiration of his enlistment, he 
 is 21 years of age, a man in the strict legal 
 sense; [but see act Aug. 22, 1912, 37 Stat., 330, 
 relative to discharge of men three months be- 
 fore expiration of term for which enlisted]; he 
 therefore comes within the law of June 29, 
 1906 (34 Stat., 553, 555), providing that "here- 
 after enlisted men discharged on account of 
 expiration of enlistment, shall receive in lieu 
 of transportation and subsistence travel allow- 
 ance of four cents per mile from the place of 
 discharge to the place of enlistment, for travel 
 in the United States;" and also within the 
 meaning of the annual appropriation for travel 
 allowance of "enlisted men" discharged on 
 account of expiration of enlistment, although 
 other appropriations make provision for trans- 
 portation of "enlisted men and apprentice sea- 
 men," mentioning them as if they were of 
 separate classes. Apprentice seamen may be 
 mentioned in the other items of the trans- 
 portation appropriation because they are trans- 
 ported before they are 21 years of age, and may 
 also be discharged "on medical survey" be- 
 fore they arrive at that age. (19 Comp. Dec, 
 591.) 
 
 A minor who enlists in the Navy is compe- 
 tent to designate a beneficiary under the act of 
 May 13, 1908 (35 Stat., 128) [since amended by 
 act of Aug. 22, 1912, 37 Stat., 329, and acts of 
 Oct. 6, 1917, 40 Stat., 392, and Oct. 0, 1917, sec. 
 
 312, 40 Stat., 408], and amount of death gra- 
 tuity in his case should be paid to beneficiary 
 in accordance with such designation. (File 
 26543-38.) 
 
 Minors enlisting with consent of parents or 
 guardians have the same right to make agree- 
 ment to reenlist or waiving transportation as 
 other enlisted men, notwithstanding a request 
 to the contrary made by the guardian in any 
 case. (File 4682-04, May 31, 1904.) 
 
 A minor may be tried by general court-mar- 
 tial without the appointment of a guardian ad 
 litem to defend him. This is in accordance 
 with decisions of the civil courts under which 
 a minor is amenable for crime and pleads with- 
 out intervention and must suffer the penalty 
 when found guilty. "A minor is tried like an 
 adult. He may defend personally or by at- 
 torney and no guardian ad litem is to be ap- 
 pointed or appear for him;" although in one 
 State, by statute, his defense is by guardian. 
 In some decisions it has been expressly held 
 that to defend in person or by attorney is the 
 right of the minor, and that it is error to assign 
 him a guardian and try the case upon a plea 
 pleaded for him by the guardian. (File 
 26251-6020, July 7, 1913; G. C. M. Rec No. 
 25157.) 
 
 When enlistment complete. — ^Vhere man 
 signed shipping articles one day but did not 
 take the oath of allegiance until the next, held, 
 that while section 25 of the Navy personnel 
 act of March 3, 1899 (30 Stat., 1009), requires an 
 oath of allegiance to be taken, there appears 
 to be no provision of law that postpones the 
 taking effect of an enlistment until such oath- 
 is taken; said man should, accordingly, be 
 taken up for pay and rations from the date he 
 signed the shipping articles, which is regarded 
 as the date of his enlistment ; oath of allegiance 
 should be executed as of the date on which it 
 is taken. (File 1096, Mar. 30, 1905.) 
 
 Men who applied for enlistment in the Marine 
 Corps were examined and accepted at Denver, 
 Colo., but took the oath of allegiance at Salt 
 Lake City, Utah; held, that they were enlisted 
 at Denver within the meaning of the law allow- 
 ing mileage on discharge to place of enlist- 
 ment. (File 7657-94, Dec. 31, 1910, constru- 
 ing act Mar. 2, 1901, 31 Stat., 902.) 
 
 The Comptroller of the Treasury decided, 
 in accordance with the rulings of the Navy 
 Department, that an enlisted man is entitled 
 to pay from the date he presents liimself for 
 service in the Marine Corps, signs the prescribed 
 application, and submits to and passes a medical 
 examination, although he does not take the 
 oath of allegiance untU a later date and in a 
 different city. (Comp. Dec, Mar. 8, 1911, 
 file 7657-94:2, 17 Comp. Dec. 656, 121 S. and A. 
 Memo., 1696; see also Comp. Dec, Mar. 4, 
 1911, file 26254-659.) 
 
 It has been specifically decided by the Navy 
 Department, the War Department, and the 
 Comptroller of the Treasury that the taking of 
 the oath of allegiance is not essential to the 
 vaHdity of an enlistment. (File 19037-58, 
 Apr. 6, 1917.) 
 
 A man who signed the shipping articles, was 
 fiu-uished and accepted transportation from 
 Raleigh to Norfolk, was passed by the medical 
 officer, was furnished subsistence and clothing 
 
 546 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1418. 
 
 outfit, and was actually assigned to duty, is 
 legally and for all purposes an enlisted man in 
 the Navy in all respects, notwithstanding that 
 he has refused to take the oath of allegiance. 
 Inasmuch as the law (act Mar. 3, 1899, sec. 25, 
 30 Stat., 1009), expressly states that the oath of 
 allegiance "shall " be administered "to the offi- 
 cers and men of the Navy," should the man in 
 question be ordered to take the oath and then 
 refuse to do so, appropriate disciplinary action 
 might be taken against him for refusing to obey 
 the lawful order of his superior. (File 19037-58, 
 Apr. 6, 1917.) 
 
 A man was honorably discharged, January 4, 
 1905; applied for reenlistment, January 5, 1905; 
 was reported physically disqualified; remained 
 on the vessel awaiting action of the Navy 
 Department; his physical disability having 
 been waived, was reenlisted as of January 5, 
 1905, but executed the oath of allegiance 
 January 16, 1905, date the waiver was received 
 on board: Held, that he was properly re- 
 enlisted as of January 5, 1905, and is entitled 
 to pay and rations from that date, provided he 
 was actually held to service from that date. 
 (File 1096, Mar. 30, 1905.) 
 
 If the man was actually held to service while 
 his physical condition was under considera- 
 tion, he may be said to have been conditionally 
 accepted and is entitled to pay for such service. 
 The fact that the man in such a case was ac- 
 cepted for service during the period awaiting 
 action should be made to appear by the certifi- 
 cate of the proper commanding officer before 
 payment is made. (Comp. Dec, June 25, 1902, 
 5 S. and A. Memo., 65; see also file 1096, Mar. 
 30, 1905.) 
 
 It is a rule that an enlistment paper can not 
 be dated back so as to cover a period when the 
 person was not actually in the service ; he must 
 be actually accepted for service; in which event 
 his enlistment paper may be dated back to cover 
 the period of such service if it was not made out 
 at the time the party was so accepted. (Comp. 
 Dec, June 25, 1902, 5 S. and A. Memo., 65; 
 see also file 1096, Mar. 30, 1905.) 
 
 Plaintiff signed an agreement "to serve for 
 a period of three years from the date of * * * 
 being mustered into the United States service." 
 Plaintiff then refused to go to camp, was 
 arrested, taken to camp of rendezvous, and, by 
 order of the commander, confined for several 
 days. On release, brought suit for damages: 
 Held, the words "enlist" and "enlistment" 
 in the law, as in common usage, may signify 
 either the completed fact of entering into the 
 military service or the first step taken by the 
 recruit toward that end . The present question 
 is not one of breach of contract but change of 
 status. The plaintiff was not a soldier, nor 
 subject to any military authority or discipline 
 as such. The statutes seem to assume the 
 mustering of a recruit into the service as the 
 point at which the right to exercise military 
 restraint over him begins. The court is not, 
 however, prepared to say that actual submis- 
 sion as a soldier to a commissioned officer 
 would not of itself be sufficient; still less, that 
 a recruit of full age who had actually served 
 or received money from the Government could 
 be allowed to dispute legality of the enlist- 
 
 ment. But the mere promise to serve from a 
 future date, to be fixed only by performance of 
 a distinct act, is not sufficient to change state 
 of a citizen into that of a soldier. (Tyler v. 
 Pomeroy, 8 Allen (90 Mass.) 480.) 
 
 A seaman who had been examined by a sur- 
 geon and passed through all the necessary 
 steps at a naval rendezvous, signing shipping 
 articles, and received orders to go on board re- 
 ceiving ship, but who, on reaching receiving 
 ship was found to be intoxicated and sent 
 away until he should become sober, and who, 
 before returning, was enticed away by the 
 defendant, held, not to be an "enlisted sea- 
 man" because he had done no duty, been paid 
 no money, and was not entitled by the regu- 
 lations to any pay until passed on the receiv- 
 ing ship. (United States v. Thompson, 28 
 Fed. Cas. No. 16491.) 
 
 Man applied for enlistment in the Marine 
 Corps, and after signing declaration and under- 
 going medical examination, failed to report to 
 complete enlistment, but enlisted in the Navy. 
 Upon report of the facts to the Navy Depart- 
 ment, held, tnat the man would be retained 
 under his enlistment in the Navy, as it other- 
 wise appeared that he was a desirable person, 
 and that no action would be taken to recover 
 from him the cost of his medical examination 
 for the Marine Corps. (File 7657-58.) 
 
 Recruits detained at the place of recruiting, 
 if said place is not a "naval station" within 
 the meaning of the act of January 30, 1885 (23 
 Stat., 291), (authorizing rations or commuta- 
 tion thereof for enlisted men), are entitled to 
 be subsisted from the appropriation "Provi- 
 sions, Navy," provided they actually enlisted 
 and became in fact enlisted men of the Navy 
 at such place. If their enlistments are not 
 completed at the place of recruiting, or if they 
 are only held together tentatively as enrolled 
 persons applying to enter the naval service, 
 they may be furnished subsistence from appro- 
 priation "Transportation, recruiting, and con- 
 tingent." (7 Comp. Dec, 408.) Under this 
 decision, applicants for enlistment who have 
 passed the physical and other examinations 
 and are held together at substations awaiting 
 the arrival of the recruiting officer to adminis- 
 ter the oath and complete their enlistment, are 
 entitjed to be subsisted from the appropriation 
 " Recruiting, Na-\dgation." (Comp. Dec, Aug„ 
 30, 1904, 43 S. and A. Memo., 419.) 
 
 Certain applicants signed papers agreeing to 
 enlist in the Marine Corps, and without being 
 accepted were transported to other cities for 
 the purpose of being examined to determine 
 their fitness. Upon arrival it was discovered 
 that the applicants had concealed former 
 ser\'ice in and dishonorable discharge from the 
 Navy. Without being enlisted, they were 
 confined by the commanding officer, for 
 varying periods, approximately two months 
 in one case, with a view to causing their arrest 
 by the civil authorities for fraudulently ob- 
 taining Government transportation, subsist- 
 ence, etc. Held, that the men in question 
 were civilians, and their confinement by 
 officers of the Marine Corps was without legal 
 authority or justification, and might expose 
 such officers to prosecution, both civilly and 
 
 547 
 
Sec. 1419. 
 
 Pi. 2. REVISED STATUTES. 
 
 The Navy. 
 
 criminally, for false imprisonment. (File 
 7G57-180, June 4, 1913, quoting U. S. v. 
 Travers, 28 Fed. Cas. No. 16537, noted under 
 Constitution, Art I, eec. 8, clause 14, "IV. 
 Jurisdiction of Courts-Martial." Followed file 
 28909-191, Jan. 21, 1919.) 
 
 "In order to become a soldier of the United 
 States Army — i. e., in order to become a fully 
 enlisted man — the party must first enlist by 
 signing the prescribed application, and he 
 must then be accepted and sworn into the 
 service by the proper officer." (Coe v. U. S., 
 44 Ct. Cls., 419, 427; Union Pac. R. Co. v. U. S., 
 52Ct. Cls. 226.) 
 
 Applicants for enlistment are in no way 
 connected with the military organization or 
 any movement of the same, and may never 
 become so. _ Such persons have not changed 
 their status in life from that of ordinary citizens 
 to that of a soldier and are not amenable to 
 military jurisdiction. They are not members 
 of the military organization and therefore are 
 not included within the term "troops of the 
 United States." (Union Pac. R. Co. v. U. S., 
 52 Ct. Cls., 226; 249 U. S., 354.) 
 
 De facto enlistment. — See note to section 
 1426, Revised Statutes, under "Honorable 
 discharge of de facto enlisted man." See also 
 cases noted above, under "Detention of men 
 after expiration of enlistment." 
 
 Errors in enlistment. — Where a minor over 
 18 years of age was enlisted to serve during 
 nainority, contrary to the provisions of article 
 931, Navy Regulations, 1905, and declined to 
 have the error in his enlistment corrected, he 
 should be discharged on account of illegal enlist- 
 ment. (File 5731, Sept. 14, 1906; compare file 
 24368-7, Feb. 14, 1912, noted under sec. 1419, 
 R. S., "Consent required for enlistment.") 
 
 A recruit at time of enlistment gave his 
 date of birth as January 9, 1879, making his 
 age 18 years. In three subsequent enlist- 
 ments he renewed his former statement as to 
 his date of birth, verifying same by oath on 
 each occasion. Thereafter, while serving as a 
 warrant officer, he reported to the Navy De- 
 partment that his correct date of birth was 
 January 9, 1881; that he had only a short time 
 previously discovered this; and inclosed an 
 affidavit purporting to be signed by his mother 
 in support of his statements. Held, that 
 while a person's statement as to his age is neces- 
 sarily hearsay evidence, it is universally 
 admitted by the courts as competent. Never- 
 theless, such hearsay evidence is not con- 
 clusive, and the testimony of one's mother, 
 substantiated, as in this case, by an apparently 
 bona tide entry in the family Bible, would 
 certainly appear to be better evidence. The 
 credibility of the new evidence, however, is 
 a matter which should be carefully considered, 
 especially as it is not incumbent upon the 
 department to decide the question and change 
 its official records in the absence of good reasons, 
 which should be made to appear. Accordingly, 
 
 the officer should be required to give liia 
 reasons for desiring the department's records 
 changed, and ex])lain why he did not, previous 
 to his enlistments, obtain from his mother the 
 date of his birth, or consult the family Bible. 
 His reasons and explanations would in all 
 probability assist in determining the credi- 
 bility of his evidence, and enable the depart- 
 ment to take such action in the premises as 
 might appear just and desirable. (File 24368- 
 9, Nov. 22, 1913.) 
 
 Man applied for enlistment in the Navy, but 
 did not sign the shipping articles; no shipping 
 articles were ever made out for him; the offi- 
 cer supposed to have enlisted him did not 
 sign the service record in his case; he reported 
 for duty, served as a machinist's mate second 
 class, and presumably received pay and allow- 
 ances as such; he now desires to be released 
 from the service: Held, that the error in this 
 case was the error of the Government and not 
 the error, mistake or fraud of the man; that 
 the most which can be held is that he enlisted 
 in the Navy upon an implied contract of en- 
 listment but for no definite period and if he 
 now refuses to execute a formal contract and 
 demands his release, and there are no charges 
 pending against him, and he is not being held 
 under sentence of court-martial, he should 
 forthwith be discharged. (File 7657-882, May 
 2, 1919.) 
 
 A recruit over 18 years enlisted for minority, 
 giving erroneous date of birth. He reenlisted, 
 giving correct date of birth, substantiated by 
 a birth certificate. Held, that the original 
 enlistment was illegal, it being required by 
 law and regulations that persons 18 years of 
 age or over be enlisted for a term of four years. 
 Held further, that while original enlistment 
 was illegal, it was voidable only, and not void, 
 and having been fully executed and terminated 
 by an honorable discharge, the man is entitled 
 to all the benefits thereof as if it had been a 
 legal and valid contract. (File 7657-360, May 
 9, 1916.) 
 
 Where a minor signed a contract of enlistment 
 reading, "I oblige and subject myself to serve 
 during minority, until January 1, 1915," the 
 legal effect of the contract was to bind him to 
 serve until he arrived at the age of 21 years, 
 which the evidence in this case shows would be 
 January 1, 1916. The date on which he would 
 attain his majority, given in the contract of 
 enlistment and consent of parents as January 1, 
 1915, must be rejected as an error in com- 
 putation. Since the man stated that he was 
 informed by the recruiting officer that his 
 enlistment would expire January 1, 1915, 
 wliich statement is confirmed by the date given 
 in the shipping articles, it would be proper 
 to ^ve him his discharge at once, but if he 
 desires the benefits of a discharge by reason of 
 expiration of enlistment, he would have to serve 
 until Januarv 1, 1916. (File 7657-273, Jan. 16, 
 1915; C. M. O. 6, 1915, p. 11.) 
 
 Sec. 1419. [Enlistment, minors, consent of parents and guardians.] Minors 
 between the ages of fourteen and eighteen years shall not be enlisted for the 
 naval service without the consent of their parents or guardians. 
 
 548 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1419. 
 
 This section was expressly amended and re- 
 enacted to read as above by act of May 12, 
 1879 (21 Stat., 3), as amended by act of 
 February 23, 1881, section 2 (21 Stat., 338), 
 the amendment made by the latter act con- 
 sisting in substituting the word " fomteen " 
 for " fifteen " as used in the former act. 
 As originally enacted this section read as fol- 
 lows: "Sec. 1419. Minors between the age 
 of sixteen and eighteen years shall not be 
 enlisted for tlie naval servdce without the 
 consent of their parents or guardians." 
 [See section 1624; article 19.] — (2 Mar., 
 1837, 0. 21, s. 1, V. 5, p. 153. 3 Mar., 1865, 
 c. 79, s. 18, V. 13, p. 490.) 
 The discharge of minors who swear falsely as 
 to their age is required by act of March 3, 
 1915, noted imder section 1418, Revised 
 Statutes. 
 The pimishment for fraudulent enlistment is 
 prescribed by act of March 3, 1893 (27 Stat., 
 716), amending section 1624, Revised Stat- 
 utes, article 22. 
 The punishment of officers who knowingly en- 
 list "any minor between the ages of four- 
 teen and eighteen years without the con- 
 sent of his parents or guardian, or any 
 minor under the age of fourteen years," is 
 prescribed by section 1624, Revised Stat- 
 utes, article 19, as amended. 
 "The register of wills [of the District of Colum- 
 bia] shall prepare papers in connection 
 with appointment of guardians to enable 
 indigent boys to enlist in the United States 
 Navy as provided by law, without making 
 any charge therefor." (Act Mar. 3, 1891, 
 26 Stat., 10G3.) 
 Consent required for enlistment. — The 
 consent of the mother would not be a sufficient 
 compliance with the terms of this section 
 where the father is living, although it is claimed 
 that the father is working in a remote part of 
 the State where he can not be reached by mail, 
 and that he would undoubtedly consent to the 
 enlistment if consulted. (File 7657-293, Jime 
 19, 1915.) 
 
 "The consent of the father is necessary ex- 
 cept where the mother or other person is the 
 legal guardian of such minor." (File 7657-293, 
 June 19, 1915.) 
 
 Where the father and mother of a minor, 17 
 years of age, are both dead, and no legal guar- 
 dian has been appointed, held that neither the 
 stepmother nor sister of said minor could 
 legally consent to his enlistment unless first 
 legally appointed as guardian. (File 7657- 
 293:3, Aug. 21, 1915.) 
 
 Where the applicant's father and mother are 
 both living, but the father has deserted his 
 wife and is not contributing to the child's sup- 
 port, held, that the consent of the mother, who 
 has not legally been appointed guardian of 
 the applicant, can not be accepted as sufficient, 
 but that upon the facts stated the consent must 
 be signed by the father. (File 7657-293:3, 
 Aug. 21, 1915.) 
 
 "If the recruiting servdce is embarrassed by 
 the requirements as to consent in the cases of 
 minors, the remedy must be sought in an 
 amendment of the statutes by Congress, as 
 such considerations can not justify administra- 
 tive officers in departing from the plain lan- 
 
 guage of the law as it exists. In other words, 
 the settled maxim that it is the province of 
 courts to construe laws and not to make them 
 applies to the fullest extent to the action of 
 executive officers." (File 7657-293:1, July 29, 
 1915.) 
 
 Where a minor during the lifetime of hia 
 father had a guardian appointed to sign his con- 
 sent papers upon enlistment, and the father 
 demanded the boy's release on the groimd that 
 he had not consented to the enlistment, held, 
 that the Navy Department can not go behind 
 the action of the court to inquire into the 
 legality of the guardian's appointment, and 
 that the enlistment was accordingly valid. 
 (File 3956, Jan. 25, 1906; see also file 7657-207, 
 Nov. 7, 1913.) 
 
 _ Minor enlisted in the Naw ^Yith consent of 
 his father after his mother had instituted pro- 
 ceedings against the father for divorce and care 
 and custody of the minor child. Held, that en- 
 listment was illegal, the minor being under the 
 jurisdiction of the court pending termination 
 of the proceedings, and his care and custody 
 having been awarded to his mother two weeks 
 after his enlistment. (File 9750-04, Nov. 30, 
 1904.) _ 
 
 A minor enlisted in the Navy for ioMi years 
 when 15 years old, alleging thathe was 18 years 
 old. To straighten out his record he afterwards 
 submitted the consent of his father. Question 
 was presented whether it would be legal to 
 accept the e\idence and retain the minor 
 under his foiu--year enlistment (there being no 
 pro\dsion of law for the enlistment for four years 
 of any one under 18 years of age), or whether it 
 was necessary to secure the agreement of the 
 father and boy for the latter to remain in the 
 Ber\ice during minority. Held, that enlistment 
 was a validone unless avoided by the United 
 States, and it would therefore be legal to retain 
 the boy under his four-vear term of enlistment. 
 (File 24368-7, Feb. 14, 1912. Compare note to 
 sec. 1418, R. S., "Errorsin enlistment.") 
 
 A minor under 18 years, father and mother 
 both dead, enlisted in Na\y for minority with 
 consent of his aunt, who made oath that she 
 was the sole legal guardian of the recruit, 
 although in fact she was not his legally appoint- 
 ed guardian. Thereafter, the minor's brother- 
 in-law was appointed his legal guardian and 
 objected to his "retention in the service be- 
 cause of under-age enlistment." Held, that 
 minor should be discharged ^vithout prejudice 
 to his right to reenlist if desired when he at- 
 tains the required age; that the fact that the 
 guardian was appointed after the minor's en- 
 listment is not material, the enlistment ha^■ing 
 been without the consent required by section 
 1419; and that, the recruit not ha\ing sworn 
 falsely as to age, it does not appear that he was 
 guilty of fraud. _ (File 7657-207, Nov. 7, 1913.) 
 This same holding applies in a case where the 
 minor swore falsely as to his age at the time of 
 enlistment, except perhaps as to prejudice 
 regarding reenlistment. (FUe 7657-559, Feb. 
 16,1918). 
 
 A minor enlisted Avith the consent of a party 
 who made oath that she was the sole legal guar- 
 dian of the recruit. Thereafter, another party 
 made application for discharge of the minor, 
 forwarding papers showing that said appHcant 
 
 549 
 
Sec. 1419. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 was appointed as guardian for the minor some 
 months after his enlistment. Held, that the 
 minor should not be discharged upon applica- 
 tion of a guardian appointed after hia enlist- 
 ment unless satisfactory evidence is produced 
 to establish that the party who consented to his 
 enlistment was not his legal guardian at the 
 date of said enlistment. (File 7657-332, Dec. 
 29, 1915.) 
 
 To satisfy the requirements of law, the con- 
 sent of the father, mother, or legal guardian of 
 the minor must be furnished. The consent of 
 parent or guardian may be executed before an 
 officer of a court of record having custody of its 
 seal, a notary public, justice of the peace, or 
 other officer authorized to administer oaths for 
 general purposes, or before an officer of the 
 Navy or Marine Corps in accordance with the 
 act of March 3, 1901 [see note to section 183, Re- 
 vised Statutes]. If such officer (other than an 
 officer of the Navy or Marine Corps) is not re- 
 quired by law to have and use a seal, his official 
 character, signature, and term of office should 
 be certified by the proper officer, State, county, 
 or city, under his official seal, unless such cer- 
 tificate has already been filed in the Navy 
 Department for general reference. (File 2757-5, 
 June 15, 1906.) 
 
 The consent of both parents is not neces- 
 sary to the enlistment of a minor under 18 years 
 of age, but in such case the consent of the father 
 is sufficient. (File 26806-142, Oct. 16, 
 1916.) 
 
 False and fraudulent consent papers 
 executed before notary. — A notary pubKc 
 may be prosecuted for violation of section 31 of 
 the Federal Criminal Code (act Mar. 4, 1909, 
 35 Stat., 1094) where he permitted an applicant 
 to sign in his presence the consent papers for 
 his enlistment in the name of his mother, and 
 then falsely certified concerning the appearance 
 of the mother before him. (See file 7657-299.) 
 
 For other cases, see file 8205-2, October 17, 
 1907; 5954, October 18, 1906; file 7657-156, 
 July 24, 1912. 
 
 Fraudulent enhstment of minor in 
 violation of this section is not void, but 
 voidable. — It is well settled that under this 
 section the enlistment of a minor without the 
 consent of his parents or guardian, while valid as 
 to the minor, is voidable at the instance of the 
 parents or guardian, and, upon application of 
 the parents or guai'dian, the ci\al courts will, 
 by habeas corpus proceedings, direct the imme- 
 diate discharge of the minor under such circum- 
 stances, unless disciplinary proceedings have 
 been commenced against him by the naval au- 
 thorities for fraudulent enlistment or other of- 
 fense. (File 7657-207, Nov. 7, 1913.) 
 
 Section 1419, as amended by act of February 
 23, 1881, is for the protection of the parents or 
 guardian; and an enlistment in \dol at ion thereof 
 IS valid as to the minor, and voidable only by the 
 parent or guardian before the minor arrives at 
 the age of 18 years. (U. S. ex rel. Hendricks v. 
 Pendleton, 167 Fed. Rep., 690.) 
 
 A minor enlisted in the Navy, although with- 
 out the consent of his parents and in violation of 
 the statute, is punishable for breach of discipline 
 and cannot be discharged on habeas corpus at 
 suit of his parent while undergoing such pun- 
 
 ishment. (U. S. ex rel. Hendricks v. Pendle- 
 ton, 167 Fed. Rep., 690.) 
 
 WTiere a minor under the age of 18 years en- 
 listed in the Navy without the consent of his 
 father, then living, on the minor's fraudulent 
 representation that he was over 21 years of age, 
 such enlistment was not void as to the minor, 
 but was voidable only at the instance of his 
 father. (U. S. v. Reaves, 126 Fed. Rep., 127, 
 reversing Ex parte Reaves, 121 Fed. Rep., 848, 
 which held that section 1419, as amended, de- 
 clares a public policy, and the enlistment of a 
 minor under the age of 18, without the consent 
 his father, is void from the beginning as 
 against the father, and gives the minor no status 
 in the naval service which can be asserted by 
 the United States to deprive the father of the 
 custody and control of his son after he has re- 
 gained the same, or which renders the son pun- 
 ishable by court-martial for desertion in peace- 
 ably lea\Tng his ship and returning to his 
 father with the latter 's approval.) 
 
 The civil couits should not interfere by habeas 
 corpus to discharge a minor under 18 years of age 
 who has been enlisted in the naval ser\dce with- 
 out the consent of his parents or guardians, if at 
 the time of presentation of the petition for the 
 writ the minor is under arrest and held for trial 
 by court-martial on a charge of desertion or 
 fraudulent enlistment or other charge cogniza- 
 ble by a naval court. (Dillingham v. Booker, 
 163 Fed. Rep., 696; compare Ex parte Baklev, 
 148 Fed. Rep., 56, affinned 152 Fed. Rep., 
 1022; Ex paite Lisk, 145 Fed. Rep., 860: and In 
 re Falconer, 91 Fed. Rep., 649.) 
 
 The appellee, William Booker, did enlist as 
 an apprentice seaman, and did serve as such 
 until he deserted. It may be admitted that he 
 fraudulently enlisted; still he was both de facto 
 and de jure in the Navy until discharged there- 
 from by operation of law, and while he was such 
 a seaman he was subject to the rules and regula- 
 tions of the Navy and liable to be tried and pun- 
 ished for any infraction of the laws relating 
 thereto. To hold otherwise would make enlist- 
 ment a farce, would destroy discipline, and 
 offer a premium for desertion. It will not do to 
 hold that he cannot be punished by court-mar- 
 tial for crimes committed when he was in the 
 naval service simply because his parents did not 
 consent to his enlistment. The lack of such 
 consent will necessitate his discharge from the 
 service, but it will not absolve him from pun- 
 ishment for the crimes he committed when in 
 the serAdce. (Dillingham v. Booker, 163 Fed. 
 Rep., 696.) 
 
 Section 1624, Revised Statutes, pro\ddes for 
 the government of the United States Navy, and 
 article 8 thereof provides that such punishment 
 as a court-mai'tial may adjudge may be infUcted 
 on any person in the Navy who deserts there- 
 from. \Vhere a minor between the ages of 14 
 and 18, without the consent of his father, then 
 living, enlisted in the Nav-y, and received the 
 usual pay from the date of his enlistment until 
 after he deserted, was arrested and detained as a 
 deserter, he could not be discharged from cus- 
 tody of the naval authorities on a writ of habeas 
 corpus sued out by his father, though the latter 
 was entitled to demand his son's release from 
 the Navy as soon as he had answered and satis- 
 
 550 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1420. 
 
 fied the charges for desertion and fraudulent 
 enlistment, then pending against him. (U. S. 
 V. Reaves, 126 Fed. Rep., 127, reversing 121 
 Fed. Rep., 848.) 
 
 For other cases, see note to section 761, Re- 
 vised Statutes, and see note to Constitution, Ar- 
 ticle I, section 8, clause 14, under "IV. Juris- 
 diction of courts-martial." 
 
 Pay and allowances under fraudulent 
 enlistment. — A marine enlisted without con- 
 sent of his parent, stating that he was 21 years 
 of age; subsequently, his father applied for his 
 discharge, claiming that he was onl^ 17 years 
 of age, and had enlisted without his parent's 
 consent. The Navy Department refused to dis- 
 charge him, deciding to accept the age given by 
 him at the time of enlistment ; his father brought 
 habeas corpus proceedings, and he was ordered 
 discharged by the court: Held, that this was a 
 judicial determination that his enlistment was 
 fraudulent, and he is not, therefore, entitled to 
 pay, travel allowances, or other allowance un- 
 der said enlistment. (13 Comp. Dec, 
 817.) 
 
 Pay actually received by an enlisted man for 
 services during a fraudulent enlistment can not 
 be recovered from him. (12 Comp. Dec, 
 445.) 
 
 The contracts were voidable and not void, 
 and until rescinded by the action of the Gov- 
 ernment any proper payments made by the 
 disbursing officer must be considered as legally 
 made, and he should be entitled to credit for 
 the same. (11 Comp. Dec, 712; file 4640, 
 Apr., 1906.) 
 
 A fraudulent enlistment is still an enlist- 
 ment, and a man so enlisted is de facto in the 
 service, and therefore a sentence involving loss 
 of pay may be approved. (File 5624, Feb. 17, 
 1896.) 
 
 Pay continues after conviction, unless for- 
 feited in whole or in part bv sentence. (File 
 26254-279.) 
 
 An apprentice discharged for fraudulent en- 
 listment is entitled to such pay as he may have 
 received, but all pay and allowances accrued 
 and unpaid at the time of discovery of the fraud 
 should be checked as forfeited. (File 2792-01, 
 Jan. 15, 1902; see also Comp. Dec, Aug. 12, 
 1897, 4 Comp. Dec, 54.) 
 
 A person convicted by court-martial of fraud- 
 ulent enlistment in the Navy and the receipt 
 of pay and allowances thereunder, and sen- 
 tenced to be dishonorably discharged from the 
 service, is not entitled to any arrearages of pay 
 which accrued prior to conviction. It is not 
 necessary that this pay should have been in- 
 cluded in the sentence of the court, since the 
 claimant never acquired title thereto, because 
 of the rescission of the contract of enlistment. 
 The Navy Department, by proceeding against 
 the claimant through a court-martial and im- 
 posing a sentence of discharge from the service, 
 has taken advantage of the fraud to rescind the 
 contract of enlistment. (4 Comp. Dec, 54; 
 file 26251-3352:1, May 19, 1910; but see file 
 26254-279, noted above, and 19 Comp. Dec, 
 470, noted under sec 1420, R. S.) 
 
 For other cases, see note to section 1420, Re- 
 used Statutes. 
 
 Sec. 1420. [Enlistment, prohibited classes.] No minor under the age of 
 fourteen years, no insane or intoxicated person, and no person who has deserted 
 in time of war from the naval or military service of the United States shall be 
 enlisted in the naval service. 
 
 This section was expressly amended and reen- 
 acted to read as above by act of August 22, 
 1912, section 2 (37 Stat., 356). 
 
 As originally enacted this section read as fol- 
 lows: "Sec. 1420. No minor under the 
 age of sixteen years, no insane or intoxi- 
 cated person, and no deserter from the 
 naval or military service of the United 
 States shall be enlisted in the naval serv- 
 ice."— (3 Mar., 1865, c. 79, 8. 18. v. 13, 
 p. 490.— U. S. V. Bainbridge, 1 Mae., 71; 
 U. S. V. Stewart, Crabbe, 265.) 
 
 It had previously been amended and reenacted 
 by act of May 12, 1879 (21 Stat., 3), which 
 changed the word "sixteen" in the origi- 
 nal section to read "fifteen " ; and was there- 
 after amended by act of February 23, 1881, 
 section 2 (21 Stat., 338), the amendment 
 made by the latter act consisting in sub- 
 stituting the word ' 'fourteen " for ' 'fifteen " 
 as used in the previous amendatory act. 
 
 The punishment of officers who knowingly 
 enlist persons in violation of this section is 
 prescribed by section 1624, Revised Stat- 
 utes, article 19, as amended. 
 Enlistment of pardoned deserter. — ^The 
 
 pardon of a convicted deserter from the Navy 
 
 blots out his offense, and he may legally be 
 
 reenlisted, notwithstanding the provisions of 
 
 sections 1420 and 1624 (art. 19), Revised Stat- 
 utes, prohibiting the enlistment of deserters in 
 the naval service. (26 Op. Atty. Gen., 617; 
 overruled by 31 Op. Atty. Gen.,_ 225, noted 
 below. See also note to Constitution, Art. II, 
 sec. 2, clause 1, imder "III. Power to pardon 
 offenses against the United States.") 
 
 Sections 1420 and 1624, article 19, Revised 
 Statutes, as amended, relate to the general or- 
 ganization and efficiency of the Navy; they 
 affect only incidentally particular classes of 
 individuals, and obviously are not intended as 
 punishment for offenses. They place deserters 
 in the same category with minors, insane per- 
 sons, and intoxicated persons, as not qualified 
 for the naval service. Accordingly, held that 
 a pardon does not remove the disqualification 
 attached to the fact of desertion by Revised 
 Statutes, sections 1420 and 1624, and that a 
 person who has deserted in time of war from 
 the naval or military service of the United 
 States is not eligible, after pardon, for reen- 
 listment in the naval service. (31 Op. Atty. 
 Gen., 225, overruling 26 Op. Atty. Gen., 617, 
 noted above.) 
 
 Enlistment of deserter who has not been 
 convicted. — See note to Constitution, Article 
 I, section 9, clause 3, under "Bill of attainder"; 
 see also sections 1996 and 1998, Re\ised Statutes. 
 
 551 
 
Sec. 1420. 
 
 Pt. ?. REVISED STATUTES. 
 
 The Navy. 
 
 No one who has already been in the naval 
 or military service of the United States shall be 
 enlisted without showing Ms discharge there- 
 from. (Art. 1^3524 (3), NaA^ Regs., 1913.) 
 
 Section 1420, Reused Statutes, prohibits the 
 enlistment of deserters at large as well as con- 
 victed deserters. (File 7657-132, Feb. 17, 
 
 ini2.) 
 
 Pay and allowances of deserter -wrho 
 fraudulently enlists. — The fraudulent en- 
 listment of deserters may be waived by the 
 Government and the deserters continued on 
 duty in the Na\'y and allowed the pay of their 
 grades. If tried by court-martial for the 
 offense, they are entitled to so much of their 
 pay as is reserved from forfeitiu^e by sentence 
 of the court, and when restored to duty are 
 entitled to the pay of their grades. (19 Comp. 
 Dec, 470.) 
 
 It is well settled that a fraudulent enlistment 
 is not void, but voidable at the option of the 
 Government, and this is based upon the gen- 
 eral principle of law that when a contract has 
 been procured by fraud it may be avoided by 
 the innocent party upon the discovery of the 
 fraud, but if the innocent party proceeds with 
 the contract and accepts service under it after 
 the discovery of the fraud, he is bound to pay 
 for such services. (15 Comp. Dec, 614.) 
 
 Whether a man securing his enlistment by 
 fraud shall be discharged for that reason or re- 
 tained in the service rests in the sound discre- 
 tion of the executive officers. If he is to be dis- 
 charged for thefraud , no further paymentsshould 
 be made; if he is to be retained in the service, 
 credit should be given him and payments made 
 as though no fraud had occurred in his enlist- 
 ment. (Comp. Dec, Apr. 29, 1903, 24 S. and A. 
 Memo., 187; see also 15 Comp. Dec, 614; 14 
 Comp. Dec, 267.) 
 
 For other cases see note to section 1419, 
 Re\-ised Statutes. 
 
 Enlistments in violation of this section 
 are void, and not merely voidable. — The 
 
 fraudulent enlistment of a deserter at large is 
 void ab initio under the provisions of section 
 1420, Revised Statutes, which section appUes 
 to deserters at large as well as convicted desert- 
 ers. (File 7657-132, Feb. 17, 1912; see also 
 Hoskins v. Pell, 239 Fed. Rep., 279..) 
 
 [Note: By section 1420, Revised Statutes, 
 Congress has placed on the same footing, with- 
 out discrimination or distinction, the various 
 classes of persons who are embraced within 
 the prohibition of that section, namely: 1. 
 Minora under the age of 14 years; 2. Insane 
 Of intoxicated persons; and 3. Deserters in 
 time of war from the naval or mihtary service 
 of the United States. All alike are placed 
 under the same disqualification, and it is impos- 
 sible to distinguish in this connection between 
 a minor, an insane or intoxicated person, and a 
 deserter in time of war. (See U. S. v. Cotting- 
 ham, 1 Rob. (Va.), 633.) While the enlistment 
 of an insane or intoxicated person might have 
 been absolutely void, even in the absence of 
 a direct prohibition against the enlistment of 
 such persons, the fact that minors under the 
 age of 14 years and deserters in time of war 
 are classed with insane or intoxicated persons 
 in the same provision is a strong indication that 
 
 it was the purpose of Congress to place them 
 under the same absolute disqualification as to 
 enlistment. 
 
 [A marked distinction will be noted between 
 the language of section 1419 — erdistments in 
 violation of which section are held to be merely 
 voidable and not absolutely void — and the lan- 
 guage of section 1420. The former section does 
 not absolutely prohibit the enlistment of persons 
 between the ages of 14 and 18 years, but by its 
 terms expressly permits the enlistment of such 
 persons, although making it a condition that 
 such minors have the consent of their parents or 
 guardians. In other words. Congress has no 
 objection to the enlistment of minors above 
 the age of 14, but on the contrary has expressed 
 its willingness that such persons should be 
 enHsted, merely providing, for the benefit of 
 parents or guardians, that their consent must 
 be secured in cases where the minor is over 14 
 but under 18 years of age. It necessarily 
 follows that if the parents or guardians of a 
 minor between 14 and 18 years make no ob- 
 jection to his serving, the enlistment may be 
 treated by the Government as valid, even 
 though their consent was not given at the time 
 of enlistment; or, if they make objection to 
 the minor's continuing in the service and apply 
 for his discharge this does not invalidate the 
 portion of the enlistment which has actually 
 been served. (See In re Morrissey, 137 U. S., 
 157, Dillingham V.Booker, 163 Fed. Rep., 696, 
 also other cases, holding that a minor fraudu- 
 lently enlisted is not only de facto but de jure 
 in the service.) 
 
 [On the other hand, section 1420 expressly 
 prohibits the enlistment of certain classes of 
 persons without any exceptions or conditions 
 whatsoever. In other words, this section 
 differs materially from the other in that here 
 Congress specifically designates those whom 
 it does not desire to have in the naval service 
 under any circumstances. And mth reference 
 to deserters in time of war the Attorney General 
 has held, as noted above, that even the Presi- 
 dent's pardon does not remove the disqualifica- 
 tion as to reenlistment. 
 
 [Sections 1117 and 1118, Revised Statutes, 
 relating to enlistments in the Army, and which 
 Were generally similar to sections 1419 and 1420, 
 except for a difference in ages, have repeatedly 
 received a judicial interpretation similar to 
 the above. Thus, in Re Da\ason (21 Fed. 
 Rep., 618), which was an appeal from 4 Fed. 
 Rep., 507, it was said, with reference to the 
 Army laws: "The reasonable conclusion war- 
 ranted by these sections would seem to be that 
 the contract of enlistment of a minor under 
 16 years of age is void; but that if he is over that 
 age it is valid, in the absence of fraud or 
 duress as to him, but during his minority is 
 invahd at the election of his parents or 
 guardian." 
 
 [In the American and English Encyclo- 
 pedia of Law (second edition), volume 20, 
 page 624, the substance of the decisions bearing 
 upon this question is stated as follows: "In the 
 United States the binding effect of a minor's 
 contract of enlistment will depend entirely 
 upon the construction to be placed upon the 
 several statutory provisions on the subject of 
 such enlistments. Under the provision pro- 
 
 652 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1420. 
 
 hibiting absolutely the enlistment of minors 
 untler the age of 16 years, such enlistments are 
 plainly void for all purposes." 
 
 [In support of this statement the following 
 cases are cited: In re Hearn, 32 Fed. Rep., 141; 
 Matter of Riley, IBen. (U.S.), 408, 39 How. Pr. 
 (N. Y.), 108. Fed. Cas. No. 11834; InreLawler, 
 40 Fed. Rep., 233; Seavey v. Seymour, 3 Cliff. 
 (U. S.), 439, Fed. Caa. No. 12596; Wantlan v. 
 White, 19 Ind., 470. 
 
 [In the Hearn case, decided by the District 
 Court of the United States for the Northern Dis- 
 trict of Ohio, referring to sections 1116, 1117, 
 and 1118, Revised Statutes, the court said: 
 "These sections are to be construed together. 
 It is clear that Congress provided by these 
 sections that a minor under 16 years of age 
 can not be enlisted, and, if done, it ivould he ab- 
 solutely void, and he could not be held to service; 
 but it is also clear that if he be 16 years old he 
 can legally enUst. Congress, having so author- 
 ized, makes such enlistment legal, and thereby 
 confers capacity on such minor to make the con- 
 tract of enlistment. If the relator was by the 
 law made competent to enter into this contract 
 when over 16 years of age, he can not for himself 
 avoid it. Section 1117, requiring the written 
 consent of parents or guardians, when under 21 
 years of age, was for the benefit of such parents, 
 who might assert their right to his custody be- 
 fore majority, and does not affect the capacity 
 of the minor to bind himself." 
 
 [To the same effect is the Riley case, which 
 was decided by the District Court of the United 
 States for the Southern District of New York in 
 1867. Referring to the laws then in force, it was 
 held by Judge Blatchford, aftenvards Associate 
 Justice of the Supreme Court of the United 
 States (quoting syllabus): "Enlistments of 
 minors over 18 years of age into the Army of the 
 United States, without the consent of their 
 parents, masters, or guardians, are valid, but 
 it is not lawful to muster into the service a per- 
 son under 18 years of age." 
 
 [In the Lawler case, which wasan appeal from 
 the District Court for the Northern District of 
 Georgia, it was said by Pardee, circuit judge, in 
 affirming the judgment of the lower court: "In 
 this view of the case, no issue is left except the 
 single one as to whether or not the petitioner was 
 under the age of 16 years when he enlisted. If 
 he was over the age of 16 years at that time, his 
 enhstment, according to the return , was regular 
 and valid; if he was under 16 years of age, the 
 enlistment was void, whether the father con- 
 sented in writing or not. " 
 
 [The case of Seavey v. Seymour, which was 
 an appeal from the District Court of the United 
 States for the District of Maine, was decided 
 by Mr. Justice Clifford, of the Supreme Court 
 of the United States, while sitting in the Cir- 
 cuit Court for the First Circuit. In an exhaust- 
 ive opinion in this case Mr. Justice Clifford 
 affirmed the decision of the lower court holding 
 that the enlistment of a minor under the age of 
 18 years was made void by the law then in force. 
 
 [In the case of Wantlan v. White the question 
 at issue was, " whether a volunteer in the Army 
 of the United States, as a private, who is under 
 the age of 18 years, can be held to the service by 
 virtue of his enlistment," and the court was 
 " unanimously of the opinion that he can not be 
 
 so held." The opinion in this case reads, in 
 part, as follows: " Volunteers under the statutes 
 named, before they become soldiers, have to be 
 mustered into the service of the United States; 
 and, on the 13th day of February, 1862, Con- 
 gress enacted a law 'that hereafter no person 
 under the age of 18 years shall be mustered into 
 the United States service.' * * * From 
 the 13th day of February, 1862, then, no consent 
 could give power to enlist a minor under the age 
 of 18, or could validate such enlistment while 
 the minor continued under 18." 
 
 [The case of Commonwealth ex rel. Bryson v. 
 Carter (20 Leg. Int. (Phila.), 21), also involved 
 the construction of the act of February 13, 1862, 
 with reference to which the court said: "The 
 Secretary of War, by the existing law, had the* 
 power to discharge minors. This power was ex- 
 ercised by that officer, and it must also be re- 
 membered by the courts. The unfortunate 
 condition of the country rendered it exceed- 
 ingly difficult for the Secretary of War to ex- 
 ercise this quasi judicial power in a satisfactory 
 manner. To relieve him, therefore, Congress 
 destroys his power. In doing so, however, it 
 was deemed advisable, also, to declare that in- 
 fants under 18 should not enlist in the Army of 
 the United States, and that no power should 
 hereafter be given to any tribunal to declare such 
 enlistments valid. While, therefore, the power 
 of the Secretary of War is destroyed in the body 
 of the law, the proviso limits the power of the 
 courts; the Secretary of War is relieved from the 
 discharge of a most onerous duty, and the courts 
 are hereafter to declare contracts of enlistments 
 made by minors under 18 years of age, either with 
 or without the consent of parents or guardians, to 
 be null and void." 
 
 [In no case has it been judicially determined 
 by the Supreme Comt of the United States that 
 the fraudulent enlistment of a deserter at large 
 in violation of express statutory prohibitions is 
 merely voidable and not absolutely void. In 
 the War Department the practice in such cases 
 prior to 1890 was not imiform. In some cases 
 it was held that the second enlistment was 
 "void and of no effect"; in other cases it was 
 the practice to hold that the enlistment was 
 "illegal" ; wliile it was sometimes held that the 
 enlistment was voidable only. However, "a 
 uniform practice was adopted in 1892, since 
 which time it has been uniformly held by the 
 [War] Department that in the cases of enlist- 
 ments of deserters while a former enlistment 
 contract was in force [the second enlistment] 
 was voidable and not absolutely void." (See 
 file 7657-132.) ' 
 
 [The present practice of the War Department 
 was apparently based upon the decision of the 
 Supreme Court in Re Griniley, decided Novem- 
 ber 17, 1890 (137 U. S., 147). The question 
 presented in that case was whether an enlisted 
 man could escape punishment for a military 
 offense on the ground that at time of enlist- 
 ment in the Ai'my he was over 35 years of age, 
 when the law (sec. 1116, R. S.) provided that 
 " Recruits enlisting in the Army must be effect- 
 ive and able-bodied men, and between the ages 
 of 16 and 35 years, at the time of their enlist- 
 ment. * * *." The court held that "An 
 enlisted soldier can not avoid a charge of deser- 
 tion by showing that at the time when he vol- 
 
 553 
 
Sec. 1420. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 untarily enlisted he had passed the age at which 
 the law allows enlisting officers to enlist re- 
 cruits." 
 
 [Even though the enlistment in the Grimley 
 case had been void, it seems clear from the 
 authorities that this could not have been set up 
 by him as a valid defense upon a trial by court- 
 martial for a military offense committed while 
 serving as a de facto enlisted man. (See Com- 
 monwealth r. Gamble, Supreme Court of Penn- 
 sylvania, 11 Serg. & Rawle, 93; Ex parte Ander- 
 son, 16 la., 595; Wilbur v. Grace, Court of 
 Errors, New York, 12 Johns., 67; InreBeswick, 
 Supreme Court of New York, 25 How. Pr., 149; 
 In re McVey, 23 Fed Rep., 878; In re Cosenow, 
 37 Fed. Rep., 668; In re Zimmerman, 30 Fed. 
 Rep., 176; In re Kaufman, 41 Fed. Rep., 876; 
 Carroll v. Ball, Fulton (Ga.) Superior Court 
 (file 7988); see also file 7657-132, and cases noted 
 under sees. 761 and 1419, R. S., and note to 
 Constitution, Art. I, sec. 8, clause 14, under 
 "IV. Jurisdiction of courts-martial.") 
 
 [It will be noted that section 1116, Revised 
 Statutes, which was construed in the Grimley 
 case, fixes the qualifications for enlistment in 
 the Army, but is not expressly prohibitory in 
 terms as ia section 1420. " Proliibitory stat- 
 utes must not be interpreted on a principle of 
 leniency; if anything done is substantially that 
 wliich is prohibited the thing is void, not be- 
 cause of its tendency, but because it is, within 
 the true construction of the statute, the thing 
 prohibited." (Sutherland on Statutory Con- 
 struction, sec. 254.) Certain statements con- 
 tained in the court's opinion in the Grimley 
 case are broad enough to apply to cases of en- 
 listments in violation of the express statutory 
 prohibitions, and to suggest that such enlist- 
 ments are not absolutely void; but such re- 
 marks, which are not called for by the facts of 
 the case decided, have not the force of a decision 
 and are disregarded by the Supreme Court 
 itself in subsequent cases where the precise 
 question is raised. (See Cohens v. Va., 6 
 Wheat., 264, 399, per Chief Justice Marshall; 
 Carroll v. Lessee of Carroll, 16 How., 287; Pol- 
 lock V. Farmers' Loan and Trust Co., 157 U. S., 
 574; Rush v. French, 25 Pac, 816, 1 Ariz., 99, 
 134.) 
 
 In Hoskins v. Pell (239 Fed. Rep., 279), it 
 was held that the fraudulent enlistment in the 
 Army of a minor 15 years of age was void under 
 section 1118, Revised Statutes, which is simi- 
 lar to section 1420 relating to the Navy. 
 
 [The proper conclusion supported by the 
 authorities above cited appears to be that 
 fraudulent enlistments in violation of section 
 1420 are void ab initio, and not merely voidable, 
 differing in this respect from fraudulent enlist- 
 ments in violation of section 1419, the party 
 fraudulently enlisting under the latter statute 
 being both de facto and de jure in the service.] 
 
 Desertion "in time of war." — Desertion 
 after December 10, 1898, from a receiving ship 
 at Boston was not desertion in time of war. 
 The treaty of peace signed December 10, 1898, 
 while not ratified until April 11, 1899, was 
 effective from the date of signature, as far as 
 exercise of sovereign powers was concerned. 
 (File 6642-03, Sept. 1, 1903; see also file 8693- 
 01, Nov. 23, 1901, and 6562, Jan. 24, 1907.) 
 
 Desertion after the conclusion of the protocol 
 with Spain of August 12, 1898, but prior to 
 the signing of the treaty of peace or the ratifica- 
 tion thereof, is desertion in time of war. The 
 date of the signing of the treaty is the earliest on 
 which the war with Spain may be considered 
 to have terminated. (File 14535-719, May 24 
 1909.) 
 
 Desertion from the Navy on September 17, 
 1898, was desertion in time of war. (File 26516- 
 47, May 18, 1911.) 
 
 Payment of death gratuity in case of 
 deserter who fraudulently enUsted. — After 
 the death of a man, the evidence wasstrong that 
 he was serving under a fraudulent enlistment. 
 If such evidence had been presented during the 
 man's lifetime, the Nav-y Department would 
 have taken proper action and he would have 
 been discharged or the fraud waived and he 
 continued in the service; but he would not have 
 been condemned unheard . WTiat evidence the 
 man might have presented we know not, nor do 
 we know what proof he might have produced 
 that the naval authorities at some time had 
 knowledge of the former service in the Marine 
 Corps and, by ignoring, had waived the fraud. 
 The man is dead and can now neither be dis- 
 charged from the naval service nor any fraud 
 waived by continuing him in it. Under the 
 circumstances, the rule as to forfeiture of 
 arrearages of pay on account of fraudulent en- 
 listment has no application, nor has it the effect 
 of depriving the widow of the gratuity given by 
 the act of May 13, 1908, to a widow or designated 
 beneficiary of "any officer or enlisted man on 
 the active list of the Navy and Marine Corps" 
 who died from ' ' wounds or disease contracted in 
 line of duty." (15 Comp. Dec, 614.) 
 
 Aliens not to be enlisted. — Only citizens 
 of United States or natives of insular posses- 
 sions shall be permitted to enlist in the Navy 
 (Art. R-3524 (1), Navy Regs., 1913; see also 
 Navy Dept. Circular, Sept. 1, 1908); except that 
 men holding honorable discharges or continu- 
 ous-service certificates on which is endorsed an 
 "honorable" or "ordinary" discharge with 
 recommendation for reenlistment, shall, if 
 otherwise qualified, be accepted for reenlist- 
 ment upon making application within four 
 months after discharge. (Art. R-3527 (1), Navy 
 Regs., 1913.) 
 
 Enlistments in the Marine Corps are governed 
 by the laws and regulations relating to the Navy 
 [see notes to sections 1418 and 1422, Revised 
 Statutes]. There is no statute prohibiting the 
 enlistment of aliens in either the Nav}- or Marine 
 Corps, and there is nothing in the regulations 
 which would prohibit the reenlistment in the 
 Marine Corps of an alien enemy who had an 
 excellent character on discharge from his last 
 previous enlistment. However, imder well- 
 established rules of international law, the en- 
 listment of an alien enemy would be objection- 
 able and might lead to unfortunate results. 
 (File 7657-488, Sept. 20, 1917). 
 
 Aliens, not enemies of the United States, 
 who have declared their intention to become 
 citizens of the United States, may be enrolled 
 in the Naval Reserve Force. (Act May 22, 
 1917, 40 Stat., 84.) 
 
 554 
 
The Navy. 
 
 Pt. :^. REVISED STATUTES. 
 
 Sec. 1422. 
 
 Sec. 1421. [Enlisted men ; transfer from military to naval service.] Any person 
 enlisted in the military service of the United States may, on application to the 
 Navy Department, approved by the President, be transferred to the Navy or 
 Marine Corps, to serve therein the residue of his term of enlistment, subject to 
 the laws and regulations for the government of the Navy. But such transfer 
 shall not release him from any indebtedness to the Government, nor, without 
 the consent of the President, from any penalty incurred for a breach of military 
 law.— (1 July, 1864, c, 201, s. 1, v. 13, p. 342.) 
 
 Transfer of marines to Hospital Corps of the 
 Navy was authorized by acts of June 17, 
 1898 (30 Stat., 474), and August 29, 1916 
 (39 Stat., 572). 
 
 Transfer of enlisted men of the naval service 
 to the Naval Flying Corps was authorized 
 by act of AugU8t_29, 1916 (39 Stat., 586). 
 
 Transfer of the Marine Corps temporarily to 
 the Army, is provided for by section 
 1621, Revised Statutes. 
 
 Transfer of the Coast Guard temporarily to 
 the Navy is authorized by act of January 
 28, 1915(38 Stat., 800). ^ 
 
 Transfer of Lighthouse Service temporarily to 
 the jurisdiction of the Navy Department 
 is authorized by act of August 29, 1916, 
 (39 Stat., 602). 
 
 Transfer of Coast and Geodetic Survey tem- 
 porarily to the jurisdiction of the Navy 
 Department is authorized by act of May 
 22, 1917, section 16 (40 Stat., 87). 
 
 Transfer of Public Health Service temporarily 
 to the jurisdiction of the Navy Department 
 is authorized by acts of July 1, 1902, sec- 
 tion 4 (32 Stat., 713), July 9, 1917 (40 Stat., 
 242), and October 6, 1917 (40 Stat., 393). _ 
 
 Who are subject to military law: See section 
 
 1342, Revised Statutes, and notes thereto. 
 
 Historical note. — Provision for the transfer 
 
 of persons in the military service to the naval 
 
 service was made by resolution of February 24, 
 
 1864 (13 Stat., 402), repealed by act of June 3, 
 
 1864 (13 Stat., 119). Authority for such 
 transfer v.ras again given by act of July 1, 1864 
 (13 Stat., 342), from which the above section 
 of the Revised Statutes is taken. In the 
 Commissioners' Draft of the Revised Statutes, 
 vol. 1, page 695, the following note was made 
 to the paragraph, now section 1421: "This pro- 
 vision seems to have been intended to meet 
 the exigencies of the late war. It may, perhaps, 
 be deemed proper to repeal it, as unsuitable 
 to the permanent relations of the military and 
 naval branches of service." Nevertheless, the 
 provision was retained, and has never since 
 been repealed. 
 
 A marine, on being transferred to the 
 Hospital Corps of the Navy, should not be 
 discharged from the Marine Corps, but should 
 sign enlistment papers for the balance of the 
 term of his original enlistment. (File 3450-04. 
 See also file 3796-02, 9033-02, and 5315-04. 
 Compare cases noted under sec. 1426, R. S., 
 "Revocation of discharge obtained by fraud.") 
 
 A marine transferred to the Hospital Corps 
 is entitled to an honorable discharge upon 
 expiration of original period of enlistment, 
 with all the benefits incident thereto, including 
 reenUstment with continuous service, or if 
 he does not reenlist, he may be furnished 
 transportation to his place of last enlistment in 
 the Marine Corps. (File 5315-04, July 5, 1904; 
 see also 11 Comp. Dec, 700, noted under 
 sec. 1426, R. S.) 
 
 Sec. 1422. [Enlistment, detention after expiration of ; transportation home.] 
 [It shall he the duty of the commanding officer of any fleet, squadron, or vessel 
 acting singly, when on service, to send to an Atlantic fort of the United States, in 
 some public or other vessel, all petty officers and persons of inferior ratings desiring 
 to go there, at the expiration of their terms of service, or as soon thereafter as may 
 he, unless, in his opinion, the detention of such persons for a longer period should 
 he very essential to the public interests, in which case he may detain them, or any 
 of them, until the vessel to which they belong shall return to such Atlantic port.] 
 [That it shall be the duty of the commanding officer of any fleet, squadron, or 
 vessel acting singly, when on service, to send to an Atlantic or to a Pacific 
 port of the United States, as their enhstment may have occurred on either 
 the Atlantic or Pacific coast of the United States; in some public or other vessel, 
 all petty-officers and persons of inferior ratings desiring to go there at the 
 expiration of their terms of enlistment, or as soon thereafter as may be, unless, 
 in his opinion, the detention of such persons for a longer period should be 
 essential to the pubUc interests, in which case he may detain them, or any of 
 them, mitil the vessel to wliich they belong shall return to such Atlantic or 
 Pacific port. All persons enUsted without the limits of the United States may 
 
 54641°— 22- 
 
 -36 
 
 555 
 
Sec. 1422. 
 
 Ft. 2. REVISED STATUTES. 
 
 The Navy. 
 
 be discharged, on the expiration of their enlistment, either in a foreign port 
 or in a port of the United States, or they may be detained as above provided 
 beyond the term of their enUstment; and that all persons sent home, or detained 
 by a commanding officer, according to the provisions of this act, shall be subject 
 in all respects to the laws and regulations for the government of the Navy 
 imtil their return to an Atlantic or Pacific port and their regular discharge; 
 and all persons so detained by such officer, or re-entering to serve until the 
 return to an Atlantic or Pacific port of the vessel to which they belong, shall 
 in no case be held in service more than thirty days after their arrival in said 
 port; and that all persons who shall be so detained beyond their terms of 
 oidistment or who shall, after the termination of their enhstment, voluntarily 
 re-enter to serve mitil the return to an Atlantic or Pacific port of the vessel to 
 which they belong, and their regular discharge therefrom, shall receive for the 
 time dm'ing wliich they are so detained, or shall so serve beyond their original 
 teims of enlistment, an addition of one-fourth of their former pay: Provided, 
 That the shipping-articles shall hereafter contain the substance of this 
 section.]— (17 July, 1862, c. 204, s. 17, v. 12, p. 610; 3 Mar., 1875, c. 155, v. 18, 
 p. 484; Wilkes v. Dinsman, 7 How., 125.) 
 
 This section is printed above as it appears in 
 the second edition of the Re\dsed Statutes. 
 The portion printed in italics is the original 
 section as it appeared in the fii'st edition of 
 the Revised Statutes, and the latter por- 
 tion, printed in the ordinary roman letter, 
 is the section as amended by act of March 
 3, 1875, cited above in the revisers' notes. 
 (See Introduction, ante, concerning the 
 second edition of the Revised Statutes.) 
 The pay of men detained after term of enlist- 
 ment in accordance with this section was 
 formerly provided for by section 1572, Re- 
 vised Sta,tutes, which is superseded by the 
 pro\'isions of this section as amended by the 
 act of March 3, 1875. 
 Mileage allowed for travel on shore, and trans- 
 portation and subsistence allowed for sea 
 travel, to place of actual bona fide home 
 or residence, or original muster into the 
 service, to men honorably discharged 
 from the Navy or Marine Corp.=!, and naval 
 reservists honorably released from active 
 service. (Act June 3, 1916, sec. 126, 39 
 Stat. 217, as amended by act Feb. 28, 
 1919, sec. 3, 40 Stat., 1203.) 
 Pro\'ision3 similar to those contained in this sec- 
 tion were first enacted by act of March 2, 
 1837 (5 Stat., 153). 
 The term of enlistment in the Navy is provided 
 for by section 1418, Re\dsed Statutes, and 
 amendments thereto. 
 Transportation of discharged naval prisoners to 
 their homes or places of enlistment is au- 
 thorized by act of March 3, 1909 (35 Stat., 
 756). 
 This section is a recognition of the Gov- 
 ernment's duty to discharge persons entering 
 the military or naval 8er\ice for limited periods 
 at the place of their appointment or enlistment. 
 This duty was also recognized by the Court of 
 Claims in the case of volunteer officers and 
 enlisted men in the decision of Daggett v. 
 United States (39 Ct. Cls., 218), in which it 
 
 was said : "It is well settled by statute, by regu- 
 lations, by judicial decisions, that volunteer 
 officers and enlisted men are entitled to be paid 
 to the time of their discharge or muster out, 
 and that they are entitled to be discharged or 
 mustered out at the place where they were en- 
 rolled or enlisted." The same principle was 
 recognized by the Navy Regulations of 1909 
 (art. 1367), which pro^dded for the discharge of 
 paymasters' clerks at the place in the United 
 States which they left under their appoint- 
 ments. Similarly it was provided by sections 
 4582 and 4583 of the Re\-ised Statutes, as 
 amended by the act of December 21, 1898 (30 
 Stat., 759, 760), that seamen on merchant ves- 
 sels discharged abroad should be returned 
 home by the master or afforded bv him the 
 means for so doing. (File 26254-359, Nov. 9, 
 1909; see also Da\-i8 v. U. S., 47 Ct. Cls., 195, 
 overruling Comp. Dec, July 29, 1909, 101 
 S. and A. Memo., 1222, upon authority of which 
 decision of the Comptroller, and following the 
 Attorney General's refusal to review same 
 (28 Op. Atty. Gen., 129), art. 1367 of the Na^y 
 Regs., 1909, was annulled; and see Allerdice v. 
 U. S., 19 Ct. Cls., 511, 513.) 
 
 The act of March 3, 1875 (18 Stat., 
 484), made no material change in section 
 1422 except to pro^^.de that the persons whose 
 terms of 8er\ice were about to expire might be 
 returned to a Pacific port if they had enlisted 
 on that coast instead of to an Atlantic port; but 
 it carried into said section the provisions of 
 section 1572 regarding one-fourth additional 
 pay, and also the pro\'isions of sections 1423, 
 1424, and 1425, upon the same general subject, 
 practically consolidating all of said sections 
 into one. " These sections were originally com- 
 piled from section 17 of the act of July 17, 
 1862 (12 Stat., 610), which contained the sub- 
 stance of the law as it now stands, except the 
 provision for the retiim to a Pacific port of 
 persons enlisting on that coast. (5 Comp. 
 Dec, 524.) 
 
 556 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1422. 
 
 The word "essential" means "neces- 
 sary," and if a person's services were needed 
 it follows that they were essential within the 
 meaning of this section. Where commanding 
 officer would not certify that man's services 
 were "essential" to the public interest, but 
 did certify that they were "needed," the man 
 was held entitled to the additional pay provided 
 by section 1422. (23 Comp. Dec, 249.) 
 
 Detention of marines. — Enlisted persons 
 in the Marine Corps are entitled to an increase 
 of one-fourth their former pay while detained 
 beyond their terms of enlistment. (5 Comp. 
 Dec, 524.) 
 
 The act of March 2, 1837 (5 Stat., 153), enti- 
 tled "An act to provide for the enlistment of 
 boys for the naval service, and to extend the 
 term for the enlistment of seamen," contained 
 substantially the same provisions relating to the 
 return to the United States of "persons enlisted 
 for the Navy," according to the provisions of 
 said act, aa are found in section 17 of the act of 
 July_17, 1862/12 Stat., 610). The act of 1837 
 provided, as in the present law, that persons 
 enlisted for the Navy, detained beyond the 
 terms of their enlistment according to said act, 
 should while so detained and serving receive 
 an addition of one-fourth to their former pay. 
 Attorney General Legare (4 Op. Atty. Gen., 89) 
 held that said act did not include marines, say- 
 ing that the act "is no more than what it pur- 
 ports to be — 'an act to provide for the enlist- 
 ment of boys for the naval service and to 
 extend the term for the enlistment of seamen. ' " 
 However, in the case of Wilkes v. Dinsman (7 
 How., 89), which was an action for damages by 
 a marine against his superior officer for punish- 
 ment inflicted for disobedience of orders while 
 so detained beyond his enlistment, the Supreme 
 Court held that marines were embraced within 
 the spirit if not the letter of the act, by the de- 
 scription of persons "enlisted for the Navy." 
 There were other circumstances in that case 
 which evidently influenced the decision of the 
 court, and their conclusion was not based solely 
 upon the statute. Congress, however, placed 
 its own construction upon the statute of 1837 by 
 enacting, in section 9 of the act of March 3, 1845 
 (5 Stat., 795), that the term "persons" used in 
 the second and third sections of said act of 1837 
 should be "construed to include marines." 
 After this amendment of the act of 1837, Second 
 Comptroller Brodhead held, very properly, that 
 marines were entitled to the benefits of the act, 
 citing the amendatory act of March 3, 1845. 
 This was probably the manner in which the 
 practice arose of allowing marines one-fourth 
 additional to their pay for detention beyond 
 their term of enlistment, which practice has 
 been continued, notwithstanding the subse- 
 quent changes in the law. (5 Comp. Dec, 524.) 
 
 It was provided by section 1 of the act of 
 August 5, 1854 (10 Stat., 586), "that the non- 
 commissioned officers, musicians, and privates 
 of the U. S. Marine Corps shall be entitled to and 
 receive the same pay and bounty for reenlisting 
 as are now or may hereafter be allowed to the 
 noncommissioned officers, musicians, and pri- 
 vates in the Infantry of the Army." [Section 
 1612, Revised Statutes.] It would seem that 
 this provision was intended to supersede all laws 
 then in force relating to the pay of enlisted men 
 
 of the Marine Corps and to repeal, among other 
 provisions, that portion of the act of 1837, as 
 amended, which gave marines one-fourth addi- 
 tional pay for serving beyond their enlistments. 
 But the former practice of allowing marines this 
 increase was continued as though the law did 
 not apply to cases of that kind. (5 Comp. 
 Dec, 524.) 
 
 The seventeenth section of the act of July 17, 
 1862, from which section 1422, Revised Stat- 
 utes, was originally taken, was but a repetition 
 in substance of the act of 1837. The latter act 
 was not carried into the Revised Statutes, 
 either in its original form or as amended to in- 
 clude marinas by the act of March 3, 1845. 
 Not having been incorporated into the Revised 
 Statutes as thus amended, unless superseded 
 by the act of 1854, making the pay of marines 
 correspond to that of the infantry of the Army, 
 it still remains in force, so far as concerns the 
 pay of marines, by virtue of section 5566, Re- 
 vised Statutes, which provides that where no 
 part of a statute has been carried into the Re- 
 vised Statutes it is not to be treated as repealed 
 by the revision. (5 Comp. Dec, 524.) 
 
 Were the question a new one, the inclination 
 would be strong to hold that the act of 1854 
 [section 1612, Revised Statutes] governed the 
 whole subject of pay of marines, and in effect 
 repealed the amended act of 1837, which gave 
 one-fourth additional pay to marines for serving 
 beyond enlistment; but the long-continued con- 
 struction, since the passage of the act, allowing 
 them this increase is entitled to great weight 
 and as it is not clearly contrary to express pro- 
 visions of law it should not be overturned . Ac- 
 cordingly, held that the provision regarding 
 marines in the act of 1837 as amended, not hav- 
 ing been superseded by the act of 1854 nor in- 
 corporated in the Revised Statutes, still remains 
 in force, and enlisted men of the Marine Corps 
 detained in service beyond their periods of 
 enlistment are entitled to an increase of one- 
 fourth to their original pay, as provided in said 
 act. _(5Comp.Dec.,524.) 
 
 It is suggested that marines are included 
 within the very words of the law as now em- 
 bodied in section 1422, under the description 
 "persons enlisted in the naval service," and so 
 entitled to the increase of one-foiu"th to their 
 pay when they bring themselves within the 
 conditions which entitle seamen to such in- 
 crease. However, the comptroller does not 
 favor this construction, notwithstanding the 
 sanction implied in the decision of the Supreme 
 Court in the case of Wilkes v. Dinsman (above 
 noted). Congress placed the opposite construc- 
 tion upon similar words in the act of 1837 by 
 amending the act to include marines. (5 Comp. 
 Dec, 524.) 
 
 Marines are not specifically mentioned in this 
 statute, but it has been held by the Comptroller, 
 in view of the history of the legislation con- 
 densed into section 1422, and of the long- 
 continued practice of the accounting officers, 
 that marines should be allowed the benefit of 
 the statute. (Comp. Dec, Feb. 24, 1905, 48 S. 
 and A. Memo., 492; see also Comp. Dec, Oct. 
 2, 1905, 55 S. and A. Memo., 1.) 
 
 For other cases concerning status of Marine 
 Corps, see notes to sections 761, 1418, and 1621, 
 Revised Statutes. 
 
 557 
 
Sec. 1422. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Detention of men enlisted outside the 
 United States. — EnlisU'd men of the insular 
 force are, in contemplation of law, enlisted 
 men or apprentices of the U. S. Navy, and 
 therefore are entitled to the one-fourtli addi- 
 tional pay provided for by section 1422, Re\ised 
 Statutes, when detained in the sei-vice after ex- 
 
 Eiration of their term of enlistment. (12 Comp. 
 >ec., 189; see also note to sec. 1417, K. S.) 
 
 Alien Chinese enlisted without the limits of 
 the United States are entitled to the additional 
 pay provided by this section when detained in 
 service under the conditions specified therein. 
 (23 Comp. Dec, GO.) 
 
 Detention of mates. — See note to section 
 1408, Revised Statutes, under " Pay and allow- 
 ances of mates." 
 
 Detention of enlisted men on shore 
 duty. — The practice has not been to allow the 
 one-fourth additional pay to marines when de- 
 tained on shore duty, but only when employed 
 on vessels of the Navy and detained after the 
 expiration of the term of their enlistment, upon 
 thetheory that section 1422 appliesonly to those 
 persons attached to vessels of the Navy. If the 
 question were a new one, unaffected by a settled 
 
 Eractice of some years' continuance, it would 
 e open to doubt whether, in order to entitle a 
 marine to the extra comjiensation allowed by 
 this law for detention in the 8er\'ice beyond the 
 term of his enlistment, he should be serving 
 upon and attached to a vessel during said 
 period of detention. (Comp. Dec, Feb. 24, 
 1905, 48 S. and A. Memo., 492; see also Comp. 
 Dec, Sept. 1, 1905, 55 S. and A. Memo., 1.) 
 
 This statute contemplates service upon and 
 attachment to a vessel during the period of de- 
 tention in service beyond the expiration of the 
 term of enlistment. Enlisted men of the Navy 
 detained at shore stations beyond the expiration 
 of their terms of enlistment are not entitled to 
 the one-fourth additional pay provided by sec- 
 tion 1422, Revised Statutes. If the enlisted 
 men of the Navy were attached to a vessel, it 
 would make no difference whether the deten- 
 tion was in port or at sea, but in the case pre- 
 sented the men were detached from their vessels 
 and stationed on shore. (Comp. Dec, Sept. 1, 
 1905, 55 S. and A. Memo., 1; see also Comp. 
 Dec, May 23, 1916, file 26254-1969:1. ) 
 
 Under the decisions and practice this statute 
 is applicable aUke to marines and enUsted men 
 of tne Navy. All persons coming within the 
 pur\iew of the statute must necessarily be on 
 the same footing. If marines detained on shore 
 duty beyond the expiration of their terms of 
 enlistment are not entitled to the one-fourth 
 additional pay, then it necessarily follows 
 that enlisted men of the Navy, who are gov- 
 erned by the same law, are not entitled to such 
 pay while detained on shore stations, (Comp. 
 Dec, Sept. 1, 1905, 55 S. and A. Memo., 1.) 
 
 An enhsted man carried on the roll of the 
 United States naval station, Olongapo, P. I., 
 but attached to and performing duty on board 
 the U. S. S. General Alava, is entitled to one- 
 fourth additional pay for detention beyond the 
 expiration of his term of enlistment. The ship 
 named is not in commission in the ordinary 
 sense of the term, but has the status of a yard 
 craft and is used principally as a ferry between 
 Cavite and Olongapo, making three trips a week 
 
 when weather permits. This vessel, as well as 
 the naval station at Olongapo, is under the juris- 
 diction and command of the commander in 
 chief of the Asiatic fleet. (Comp. Dec, May 
 23, 1916, file 26254-1969:1.) 
 
 Detention of enlisted man under court- 
 martial sentence. — By sections 1422, 1423, 
 and 1424 of the Revised Statutes, Congress has 
 pro^•idc'd that in certain cases of emergency 
 enlisted men of the Navy may be held in serv- 
 ice for limited periods beyond their enlist- 
 ments, but the law does not authorize their 
 detention for any longer time or for any other 
 purpose, and the implication is that a detention 
 other than in the manner there stated would be 
 illegal. Where jurisdiction of a court-martial 
 has attached, it will continue for all purposes of 
 trial, sentence, and the execution of the sen- 
 tence, although in the meantime the term of en- 
 listment of accused should expire. But if when 
 accused's term of enlistment expired he was in 
 confinement, undergoing punishment in obedi- 
 ence to the sentence of the court-martial for the 
 offenses of which he was accused, such impris- 
 onment and punishment would not be such a 
 holding of him in the service beyond the term 
 of his enlistment as would entitle him to re- 
 ceive thereafter pay and allowances which are 
 given by law as compensation for personal 
 services, nor could it be regarded as holding him 
 in the naval service within the meaning of any 
 law entitling him to receive pay for such serv- 
 ice. Accordingly, held that the payment to 
 an enhsted man of the Navy who was sentenced 
 by court-martial to imprisonment for a speci- 
 fied term, extending beyond his term of enlist- 
 ment, with forfeiture of pay and allowances of 
 an amount excepted from forfeiture, is not 
 authorized after the expiration of the term of 
 his enlistment, although he was not discharged 
 until the expiration of his term of confinement. 
 (9 Comp. Dec, 257, affirming Comp. Dec, 
 Nov. 22, 1902, 13 S. and A. Memo., 126. But 
 see act Feb. 16, 1909, sec. 13, 35 Stat., 622.) 
 
 The Navy Department has authority to re- 
 tain a general court-martial prisoner to serve 
 out his sentence after his enlistment has ex- 
 pired and he has been given a discharge from 
 the service. (File 26504-102, Mar. 1, 1910.) 
 
 A general court-martial prisoner may be tried 
 by summary court-martial or deck court prior 
 to the expiration of his period of enlistment, 
 and may afterwards be held to serve out the 
 sentence imposed by such court, irrespective 
 of whether or not his enlistment expires in 
 the meantime. (File 26504-100, Dec. 21, 
 1910; as to trial by court-martial of prisoners 
 for offenses committed after expiration of en- 
 listment, see file 2650^259, Mar. 12, 1918, 
 recommending legislation.) 
 
 An enlisted man who absented himself with- 
 out authority, and remained so absent until 
 after expiration of his enlistment, may be tried 
 by summary court-martial and sentenced to 
 perform extra police duties, and may be re- 
 tained in the service for the purpose of execut- 
 ing such sentence. (See 20 Comp. Dec, 751.) 
 
 An enhsted man detained in the service after 
 expiration of enlistment to serve a sentence of 
 imprisonment for desertion was restored to 
 duty on probation prior to completion of sen- 
 tence. Held, entitled to pay during probation- 
 
 558 
 
The Navy. 
 
 Pt. 2. REVISED STATUTE.'^. 
 
 Sec. 1422. 
 
 ary period. (Comp. Dec, Nov. 20, 1908, 93 
 S. and A. Memo., 896.) 
 
 See also note to section 1418, Revised Statutes, 
 under "Detention of men after expiration of 
 enlistment." 
 
 Detention of enlisted man on account 
 of physical disability. — On date of expiration 
 of enlistment an enlisted man of the Navy was 
 serving in foreign waters and temporarily dis- 
 abled from disability incurred in line of duty, 
 and continued on ship from such date, January 
 26, 1912, to February 15, 1912, wHen he re- 
 enlisted thereon for a full term. Held^ that 
 for period intervening between expiration of 
 enUstment and reenUstment he may be paid 
 one-fourth additional pay, if commanding offi- 
 cer shall certify that he detained the man as 
 "essential for the public interests, " under sec- 
 tion 1422 Revised Statutes. (18 Comp. Dec, 
 724.) 
 
 An enlisted man detained in a hospital on a 
 foreign station after expiration of enUstment 
 and upon recovery transferred to duty on board 
 another vessel and later transferred to the 
 United States for discharge, is entitled to bene- 
 fits of this section. (Comp. Dec, Jan. 6, 1917, 
 file 26254-2169.) 
 
 The regulations for many years have con- 
 tained a provision that the pay of an enlisted 
 man under treatment in a hospital on a foreign 
 station "continues until he is regularly dis- 
 charged from the service, even after his term 
 of enlistment has expired.'' (File 26251- 
 5447, Dec. 8, 1911, citing art. 792, par. 7, Navy 
 Regs. 1909; Comp. Dec, Aug. 18, 1903, 31 S. 
 and A. Memo., 242. See also Art. R-3582 
 (7), Navy Regs., 1913.) 
 
 An enlisted man at a hospital in the United 
 States should be discharged upon the expira- 
 tion of his enlistment, and in such case the man 
 should, if necessary, be retained for further 
 treatment. If retained, he does not lose his 
 right to transportation to his home, if he has it 
 otherwise. (File 2274-04; 727-00; 303-5-98. By 
 article 3582(8), Navy Regs., 1913, as amended 
 by C. N. R. No. 11, Dec. 1, 1918, it was pro- 
 \ided that "enlisted men held for treatment at 
 a hospital after expiration of enlistment are 
 held for the convenience of the Government, and 
 entitled to pay and allowances until date of 
 actual discharge from the ser'vice.") 
 
 No legal objection exists to payment from the 
 naval hospital fund, at the rate of 30 cents per 
 day, to the Army and Navy General Hospital 
 in the cases of discharged enlisted men of the 
 Navy and Marine Corps retained for treatment 
 after expiration of their enlistments. (File 
 22857-12:3, Jan. 17, 1912.) 
 
 Detention of enlisted man for period 
 necessary to travel home. — An enlisted 
 man in the Navy detained in the service for five 
 days after the expiration of enhstment period, 
 while on board an Army transport en route from 
 Cavite, P. I., to San Francisco, Cal., for dis- 
 charge, is not entitled to one-fourth additional 
 pay provided by section 1422, Revised Statutes, 
 as amended by act of March 3, 1875 (18 Stat., 
 484). (20 Comp. Dec, 37.) 
 
 The statute provides two alternatives: First, 
 to return the man to the United States at the 
 expiration of his enlistment or as soon there- 
 after as may be, and, second, when his ser\'ices 
 
 are essential to the public interests, to detain him 
 in the service. The commanding officer in thia 
 case acted upon the first alternative and sent 
 the man to the United States by an Army trans- 
 port and before the expuation of his enlistment. 
 The second alternative of detaining him in the 
 service was evidently not deemed essential to 
 the public interests. During the five days for 
 which the one-fourth additional pay is claimed 
 the man was not performing the duties of his 
 rating, but was traveling home for discharge as 
 a passenger on an Army transport. (20 Comp. 
 Dec, 37.) 
 
 Detention of enlisted man at his own 
 request. — When an enlisted man is detained 
 in the service beyond the expiration of his en- 
 listment, at his own request, although detained 
 longer than he requested, this is not such a d<e- 
 tention as contemplated by section 1422, Re- 
 vised Statutes, but the additional detention is 
 incidental to and the result of the detention 
 granted at his request. (Comp. Dec, July 24, 
 1907, 77 S. and A. Memo., 410.) 
 
 Where the enlistment of an enlisted man of 
 the Navy expires while the vessel on which he 
 is serving is making a voyage, and he is per- 
 mitted at his own request to remain on the ves- 
 sel until it returns to the United States, he is 
 not detained in the service within the meaning 
 of section 1422, Revised Statutes, and is not en- 
 titled to one-fourth additional pay thereunder. 
 (15 Comp. Dec, 883.) 
 
 The words "detention" and "detained" as 
 used in the statute clearly imply the use of 
 force, physical or moral. (15 Comp. Dec, 883.) 
 
 The said statute provides for the payment of 
 one-fourth additional pay for service beyond 
 the expiration of their terms of enlistment, of 
 two classes of enUsted men, viz: First, those 
 whose terms of enlistment expire while away 
 from the United States, and who, after the ter- 
 mination of their enlistment, voluntarily re- 
 enter to serve until the return to an Atlantic or 
 Pacific port of the vessel to which they belong; 
 second, those whose terms of enlistment expire 
 while they are away from the United States, 
 and who desire to go to the coast of the United 
 States on which they enhsted at the expiration 
 of their terms of enlistment, but who are de- 
 tained in the service for the public interests. 
 (15 Comp. Dec, 883.} 
 
 Detention of enlisted man awaiting dis- 
 charge papers. — An enlisted man was on re- 
 cruiting duty when his enlistment expired, 
 November 16, 1906, and his discharge papers 
 were not received by him until November 30, 
 1906. In the meantime he continued on duty, 
 and reenhsted December 1, 1906, the next day 
 after receiving his discharge: Held, that he 
 was in the ser\ice and properly entitled to a dis- 
 charge on November 30, 1906, to take effect on 
 that date; that there was no authority of law for 
 antedating his discharge and reenlistment to 
 November 16 and 17, 1906, respectively, and 
 that it is not only legal but entirely proper that 
 the records should be corrected so as to show 
 that he was discharged by reason of expiration 
 of enhstment on November 30, 1906, and re- 
 enhsted the following day, thereby bringing 
 him within the provisions of article 1134, para- 
 graph 7, Navy Regulations, 1909, allowing addi- 
 tional pay to men reenUsting after November 
 
 559 
 
Sec. 1422. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 27, 1906. (File 7657-65, Dec. 15, 1909; compare 
 U. S. V. Travera, Fed. Cas. No. 16537, noted 
 under Constitution, Art. I, sec. 8, clause 14, 
 "Persons not subject to jurisdiction of Federal 
 courts-martial ;" see also file 7657-295, noted 
 under sec. 1418, R. S., "Detention of men after 
 expiration of enlistment.") 
 
 Detention of enlisted men indebted to 
 United States.— Where a man through allot- 
 ment of pay has overdrawn his_ account, hdd 
 that "there is no law or regulation warranting 
 the retention of the man in the service after the 
 expiration of his enlistment, provided the ves- 
 sel is in a United States port, butif itisin his 
 power to return the money and he fails to do it, 
 he might be hold for court-martial." (File 
 3015-04; see also file 1245-01.) 
 
 It is not regarded as good economy to retain a 
 man in the service who has been sentenced to 
 bad-conduct discharge and who is in debt to the 
 Government, merely in order that he may be 
 able to earn sufficient money to cancel his in- 
 debtedness. Such men are accordingly dis- 
 charged, notwithstanding the state of their ac- 
 counts. (File 9770-01, Dec. 27, 1901. That 
 discharge of man before having been fully 
 checked amount of sentence, operates as im- 
 plied remission of sentence, see Comp. Dec, 
 Apr 0', 1914, 158 S. and A. Memo., 3035, noted 
 under sec. 236, R. S., "VI. Set-off. "_ That 
 permitting man to extend enlistment, instead 
 of discharging him under such circumstances, 
 does not operate as implied remission, see file 
 26806-131:44, Aug. 11, 1916.) 
 
 An enUated man was overpaid on discharge. 
 Immediately afterwards the error was discovered 
 by the pay officer, who induced the man to re- 
 turn to the ship and requested the commanding 
 oflScer to detain the man until he refunded 
 amount of overpa>Tnent or had been required 
 to u-ork same off. Held, that commanding 
 officer correctly ruled that he had no authority 
 to detain the man under such circumstances. 
 (File 26254-70. July 8, 1908; see also file 26251- 
 3352:1.) 
 
 Detention of enlisted men in other 
 cases. — See note to section 1418, Revised Stat- 
 utes, under "Detention of men after expiration 
 of enlistment." 
 
 Place to which transportation should be 
 furnished.— The pro\'ision of section 1422, 
 Revised Statutes, which requires that enlisted 
 men in the Navy who so desire shall, at the 
 expiration of their terms of enlistment, be 
 returned to the coast, either the Atlantic or 
 Pacific, on which they enlisted, does not 
 require that they shall be sent to the particular 
 port at which they enlisted, nor authorize 
 furnLshinff them transportation thereto. 
 (4 Comp. Dec., 390.) 
 
 This 8e<;tion was evidently intended to 
 prevent the discharge of persons enlisting in 
 the Navy in a foreign port, when they desired 
 to be returned to the United States. There is 
 nothing to show the intention that persons 
 whose terms of enlistment were about to expire 
 should be transported to the particular port of 
 their enlistment. (4 Comp. Dec, 390.) 
 
 Atlantic ports are mentioned in the law in 
 connection with Pacific ports. Both terms are 
 used generically, and include not only ports 
 confronting on the ocean, but also those situ- 
 
 ated upon the gulfs and bays of either coast. 
 Within the meaning of the law a gulf port ia 
 an Atlantic port, and a man discharged at Port 
 Tampa is not entitled to be transported to any 
 other Atlantic port. (4 Comp. Dec, 390.) 
 
 Prior to July 1, 1902, all tran.sportation for 
 enlisted men of the Navy was paid from appro- 
 priations usually made in general terms, as 
 "for the transportation of enlisted men and 
 bovs at home and abroad, and of officers accom- 
 panjang them" (31 Stat., 1109), and the 
 payments were governed as to discharged men 
 by section 1422, Revised Statutes, and Navy 
 regulations. The naval appropriation act of 
 July 1,1902 (32 Stat., 664), pro\aded: "Bureau 
 of Navigation:. Transportation, * * * trans- 
 portation and subsistence en route to their 
 homes, if residents of the United States, of 
 enlisted men and apprentices discharged on 
 medical sin-vey; transportation and subsistence 
 en route to the place of enlistment, if residents 
 of the United States, of enlisted men and 
 apprentices discharged on account of expiration 
 of enlistment * * *. " A like appropria- 
 tion was made in the same terms by subsequent 
 annual appropriation acts. These acts specify 
 the conditions under which transportation 
 and subsistence shall be fiunished enlisted men 
 and apprentices on discharge, and supersede 
 any regulations in conflict with them. (11 
 Comp. Dec, 336.) [The deficiency appropria- 
 tion act of March 3, 1901 (31 Stat., 1030), pro- 
 vided that transportation to their homes, if 
 residents of the United States, of enlisted men 
 and apprentices discharged on medical survey, 
 and the transportation to place of enlistment, 
 if residents of the United States, of enlisted men 
 and apprentices discharged on account of ex- 
 piration of enlistment, shall hereafter be 
 chargeable to the appropriation "Transporta- 
 tion, recruiting, and contingent."] 
 
 An enlisted man of the Navy, whose home 
 is in Porto Rico, is a resident of the United 
 States within the meaning of the j^rovision in 
 the annual appropriation for the transportation 
 to their homes of enlisted men of the Navy on 
 discharge from the service. (11 Comp. Dec, 
 336.) 
 
 How additional pay computed. — The one- 
 fourth additional pay pro\'ided by section 1422, 
 Revised Statutes, for enlisted men of the Navy 
 detained in the service beyond the term of 
 their enlistment should be computed upon the 
 basis of the total pay, extra as well as regular, 
 which they would otherwise have received. 
 (11 Comp. Dec, 575.) 
 
 In other words, the one-quarter increase 
 follows the pay given for the duties he may be 
 required to perform, whether they be regular 
 duties covered by the regular pay, or special 
 duties for which extra pay is pro\dded. (11 
 Comp. Dec, 575.) 
 
 If, then, an enlisted man detained as specified 
 in section 1422, performs under detail the duties 
 of gun pointer, gun captain, signalman, mess- 
 man, or other detail of similar character, the 
 extra pay allowed in such cases should be in- 
 cluded in making up the total pay upon which 
 the one-fourth additional is to be computed. 
 (11 Comp. Dec, 575.) 
 
 The words "former jjay" as used in section 
 1422, Re^ised Statutes, do not in the case of 
 
 560 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1422. 
 
 a marine include the 20 per cent extra pay 
 allowed for service in time of war to enlisted 
 men of the Army by act of April 26, 1898 (30 
 Stat. 365). (5 Comp. Dec, 524.) 
 
 In computing the one-fourth additional pay 
 a marine is not entitled to include one-fourth 
 of the additional pay allowed for foreign 
 service. (Comp. Dec, Feb. 24, 1905, 48 
 S. and A. Memo., 492; see also Comp. Dec, 
 Sept. 1, 1905, 55 S. and A. Memo., 1.) 
 
 Certificate of commanding officer neces- 
 sary. — In cases of detention, the commanding 
 officer by whose order the detention is made 
 is the proper officer to certify that such deten- 
 tion was essential to the public interests. (20 
 Comp. Dec, 37; see also 18 Comp. Dec, 724.) 
 
 Additional pay can not be waived. — An 
 enlisted man of the Navy detained in service 
 under section 1422, Re\dsed Statutes, does not 
 lose his right to the additional pay authorized 
 in that section for the period of detention 
 solely because he had voluntarily attempted 
 to waive his right to such pay, since such 
 attempted waiver is of no legal force or effect. 
 (23 Comp. Dec, 249.) 
 
 Transportation may be waived. — The 
 Re\ised Statutes, section 1422, make it the 
 duty of the commanding officer of a fleet, 
 squadron, or vessel, to send to an Atlantic 
 or Pacific port enlisted men, as their terms 
 of enlistment expire, ' 'in some public or other 
 vessel," "aa soon thereafter as may be, unless, 
 in his opinion, the detention of such persons 
 for a longer period should be essential to the 
 public interests." This is not equivalent to 
 a statutory salary, and may be voluntarily 
 waived by the enlisted man in consideration 
 of his being allowed to remain on board the 
 vessel when she is about to sail to a foreign 
 station. (Hunt v. U. S., 38 Ct. Cla., 135, 
 approving 5 Comp. Dec, 514.) 
 
 An enlisted man in the Navy who, in con- 
 sideration of his being allowed to remaLa on 
 his vessel, then about to proceed to Asiatic 
 waters, gives a waiver of all claim to transporta- 
 tion home should he refuse to reenlist and be 
 discharged in a foreign port, can not maintain 
 an action for the value of such transportation. 
 (Hunt V. U. S., 38 Ct. Cls., 135, approving 
 5 Comp. Dec, 514.) 
 
 An apprentice of the Navy, having been 
 transferred from one vessel to another upon his 
 request and upon his waiver of his right, on 
 discharge in a foreign port, to transportation 
 to the United States, is not entitled to reim- 
 bursement of the cost of such transportation 
 procured by himself. (9 Comp. Dec, 5.) 
 
 The question here presented is not whether 
 the Secretary of the Navy has the power to 
 diminish or increase claimant's pay while in 
 the service, which is the compensation fixed 
 and established by law and given in considera- 
 tion of and as compensation to claimant for 
 his personal services. No such question is 
 involved. The claimant having executed a 
 proper agreement of waiver, on account of 
 which he secured said transfer, and having 
 received the benefit of such an agreement, the 
 Government was under no obligation, under 
 the circumstances, to furnish him transporta- 
 tion to his home or place of enlistment. (9 
 Comp. Dec, 5.) 
 
 Detention of man operates as extension 
 of his existingf enlistment. — ^\^lere a man 
 is detained in the Navy under section 1422, 
 Revised Statutes, his existing contract of en- 
 listment continues in full force and effect, 
 and does not expire until his "regular dis- 
 charge." (File 26254-1227:1, Nov. 19, 1913; 
 20 Comp. Dec, 377, modifying 19 Comp. 
 Dec, 819.) 
 
 Wlien a man is detained under this section 
 because his service is essential to the public 
 interests, the detention is a prolongation of the 
 four-year term, and the four-year term still 
 exists and continues to exist so long as the 
 detention is authorized by the statute. If the 
 commanding officer certifies that the detention 
 was essential to the public interests, the man's 
 enlistment was properly extended, under the 
 act of August 22, 1912 (37 Stat., 331), on the 
 date that the period of his detention expired, 
 and for one year from that date. (20 Comp. 
 Dec, 377.) 
 
 The contract of enlistment contains the fol- 
 lowing provision: "Secondly, I oblige and 
 
 subject myself to serve fom* years from — , 
 
 19 — , unless sooner discharged by proper 
 authority, and on the conditions provided by 
 the act of Congress ' To amend section fourteen 
 hundred and twenty-two of the Revised Stat- 
 utes of the United States, relating to the better 
 government of the Navy,' approved March 3, 
 1875, in the following words, to wit: * * * 
 And I also oblige myself, during such service, 
 to comply with, and be subject to, such laws, 
 regulations, and discipline of the Navy aa are 
 or shall be established by the Congress of the 
 United States or other competent authority 
 * * *." This contract is the same as that 
 entered into by all persons enlisting in the 
 Navy with the exception of those enlisted for 
 minority, and it is commonly referred to as a 
 four-year contract of enlistment to distinguish 
 it from enlistments for minority. It will be 
 noted, however, that the term of enlistment 
 under the contract quoted is not for the defi- 
 nite term of four years; but, on the contrary, 
 it is expressly made "on the conditions pro- 
 vided by the act of Congress" quoted in the 
 enlistment contract. One of the very impor- 
 tant "conditions" enumerated in said act, 
 which extends and renders indeterminate the 
 expiration of the so-called four-year term of 
 enlistment, is, it will be noted, that the com- 
 manding officer may, in his discretion, detain 
 any enlisted man beyond the expiration of the 
 period stated in the enlistment contract, 
 under the circumstances stated in the law. 
 During such time as the man is so detained he 
 is, under the explicit terms of the law, "sub- 
 ject in all respects to the laws and regiilations 
 for the government of the Navy" until his 
 "regular discharge." Hence, the period of 
 enlistment could, at the discretion of the 
 Government, in accordance with the terms of 
 the contract and the law quoted therein, be 
 either greater or less than the specified term of 
 four years, and in the event of detention beyond 
 the stated term of four years the enlistment 
 contract was to continue in full force and effect 
 until the man's "regular discharge." (File 
 26254-1227:1, Nov. 19, 1913; 20 Comp. Dec, 
 377.) 
 
 561 
 
Sec. 1426. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 The status of an enlisted man detained by au- 
 thority of section 1422, Revised Statutes, is 
 just such as referred to by the Attorney Gen- 
 eral (15 Op. Atfy. Gen., 152, Ifil) as an excep- 
 tion to the rule that a man who enlists for a 
 definite period is relieved of his obligation to 
 serve at the end of the period. The Attorney 
 General stated in part: 'Consequently, unless 
 there exists some law when the contract is 
 entered into providing for a contingent pro- 
 longation of the terra beyond the period fixed 
 by the statute, and the contingency happen 
 within the term * * * with the last dav 
 
 of the term his engagement necessar.ly expires, 
 and with the expiration of his engagement the 
 obligation to serve thereby imposed is also at 
 an end." (20 Comp. Dec, 371.) 
 
 Reentering to serve is a nevr enlist- 
 ment. — When a man under this section reenters 
 to serve until the return of the vessel, it is a 
 reenlistment, and he can not dui-ing the period 
 of such reenlistment extend his enlistment as 
 proA-ided by the act of August 22, 1912 (37 
 Stat., 331), as that act requires the extension 
 be made during the existing four-j^ear term of 
 enlistment. (20 Comp. Dec, 377.) 
 
 Sec. 1423. [Enlisted men subject to regulations while sent home or detained. 
 Superseded.] 
 
 This section provided as foUo-ws: 
 
 "Sbc. 1423. All persons sent home, or 
 detained by a commanding officer, according 
 to the proAisions of the preceding section, shall 
 be subject in all respects to the laws and regu- 
 lations for the government of the Navy, until 
 their return to an Atlantic port and their regu- 
 lar discharge."— (17 July, 1862, c. 204, s. 17, 
 V. 12, p. 610.) 
 
 Sec. 1424. [Enlisted men, limit of detention. Superseded.] 
 
 It was superseded by act of !March 3, 1875 
 (18 Stat., 484), which amended section 1422, 
 Revised Statutes, and embodied proA^sions 
 superseding tliis section and sections 1424 and 
 1425. See the existing provisions of section 
 
 1422 as given above 
 
 This section provided as follows: 
 
 "Sec. 1424. Persons so detained by a com- 
 manding officer, or reentering to serve until 
 the return to an Atlantic port of the A-essel to 
 which they belong, shall in no case be held in 
 service more than thirty days after their arrival 
 in said port."— (17 July, 1862, c. 204, s. 17, 
 v. 12, p. 610.) 
 
 Sec. 1425. [Enlistment, shipping articles to contain provisions of preceding 
 sections. Superseded.] 
 
 It was superseded by act of Alarch 3, 1875 
 (18 Stat., 484), which amended section 1422, 
 Revised Statutes, and embodied provisions 
 superseding also sections 1423-1425, Revised 
 Statutes. See the existing provisions of sec- 
 tion 1422 as given above. 
 
 vised Statutes, and embodied provisions super- 
 seding also sections 1423-1425, Revised Stat- 
 utes, and likewise superseding section 1572, 
 Revised Statutes, referred to in this section, 
 which contained a provision for additional pay 
 to men detained after expiration of enlistment 
 in accordance with section 1422. 
 
 This section provided as follows: 
 
 "Sec. 1425. The shipping articles shall con- 
 tain the substance of the three sections next 
 preceding and of section fifteen hundred and 
 seventy-two."— (17 July, 1862, c. 204, s. 17, 
 V. 12, p. 610.) 
 
 It was superseded by act of March 3, 1875 
 (18 Stat., 484), which amended section 1422, Re- 
 
 Sec. 1426. [Enlisted men, honorable discharge of.] Honorable discharges 
 may be granted to seamen, ordinary seamen, landsmen, firemen, coal-heavers, 
 and boys who have enlisted for three years. — (2 Mar., 1855, c. 136, s. 1, v. 10, 
 p. 627. 7 June, 1864, c. Ill, v. 13, p. 120.) 
 
 Amendment to this section was made by joint 
 resolution of June 11, 1896 (29 Stat., 476), 
 which extended the provisions of section 
 1426 to "all enlisted persons in the Nav-y"; 
 and by act of August 29, 1916 (39 Stat., 560), 
 which authorized honorable discharge of 
 men who had served one year of a first en- 
 listment. The latter act was repealed by 
 act of March 4, 1917 (39 Stat., 1171). 
 
 As to term of enlistment in the Navy, see sec- 
 tion 1418, Revised Statutes, and note 
 thereto. 
 
 Bad-conduct discharges to enlisted men of the 
 Navy and Marine Corps are authorized by 
 
 sentence of summarj^ court-martial (sec. 
 1624, R. S., art. 30, as amended by act Feb. 
 16, 1909, sec. 8, 35 Stat., 621); and also by 
 sentence of general court-martial (sec. 1624, 
 _R. _S., art. 35)._ 
 Burial in any national cemetery, free of cost, 
 is authorized in cases of sailors or marines 
 dying in a destitute condition after having 
 been honorably discharged from the serv- 
 ice; the production of honorable discharge 
 of a deceased man is sufficient authority for 
 the superintendent of any cemetery to per- 
 mit the interment. (Sec. 4878, R. S., as 
 amended.) 
 
 562 
 
The Navy. 
 
 rt. 2. REVISED STATUTES. 
 
 Sec. 1426. 
 
 Certificate in lieu of lost discharge was author- 
 ized to be furnished to persons who served 
 in the Na^-v or Marine Corps in the War of 
 1812, the Mexican War, or the Ci\-il War, 
 by act of February 7, 1890 (26 Stat., 6). _ 
 
 Certificate of discharge to be furnished in Civil- 
 War cases where charge of desertion is re- 
 moved from record of man who has not re- 
 ceived a certificate of discharge. (Act 
 Aug. 14, 1888, sec. 4, 25 Stat., 443, revived 
 and reenacted bv act Mav 24, 1900, sec. 1, 
 31 Stat., 183.) 
 
 Certificates of discharge in true names shall be 
 issued to persons who enlisted or served un- 
 der assumed names in the NaAy during the 
 Ci\-il War, the War with Spain, the Philip- 
 pine Insurrection, or during any war be- 
 tween the United States and any other na- 
 tion or people, and were honorablv dis- 
 charged. (Act Apr. 14, 1890, 26 Stat, 55, 
 as amended by acts June 25, 1910, 36 Stat., 
 824, and Aug. 22, 1912, 37 Stat., 324.) 
 
 Compensation under War Risk Insurance Act 
 not to be paid in cases of persons dismissed 
 or receiAang a dishonorable or bad-conduct 
 discharge from the serAdce. (Act Oct. 6, 
 1917, sec. 308. 40 Stat., 407.) 
 
 Disability not in line of duty, refund of enlist- 
 ment bounty when discharged for, may be 
 required in certain cases. (Act Mar. 2, 
 1907, 34 Stat., 1176.) 
 
 Discharge of minors who fraudulently enlist by 
 swearing falselv as to their aee is required 
 by act of March 3, 1915 (38 Stat., 931), 
 quoted above under section 1418, Re\dsed 
 Statutes. 
 
 Dishonorable discharges to enUsted men of the 
 Na^y and Marine Corps are authorized by 
 sentence of general court-martial. (See sec. 
 1624, R. S., art. 63.) Dislionorable dis- 
 discharge is bar to compensation under 
 War Risk Insurance Act. (Act Oct. 6, 
 
 1917, 40 Stat., 407; see also act June 25, 
 
 1918, 40 Stat., 609.) 
 
 Forging, counterfeiting, or falsely altering any 
 certificate of discharge from the military or 
 naval ser^dce, or ha^'ing same in jjossession, 
 etc., punishable by fine and imprisonment. 
 (Act Mar. 4, 1917, 39 Stat., 1182.) 
 
 Gratuity and increased pay to be allowed holder 
 of honorable discharge from the Naw who 
 reenUsts within four months after such dis- 
 charge. (Sec. 1573, R. S., as amended by 
 act Mar. 3, 1899, sec. 16, 30 Stat., 1008, and 
 further amended and reenacted bv act Aug. 
 22, 1912, 37 Stat., 331.) But this did not 
 apply to men who received an honorable 
 discharge after completing one year of a 
 first enlistment, as authorized by act Au- 
 gust 29, 1916 (39 Stat., 560), which act was 
 repealed bv act March 4, 1917 (39 Stat., 
 1171). 
 
 Gratuity of $60 to be paid all persons serving 
 in the naval forces during present war 
 who have resigned or been discharged 
 under honorable conditions, or in the cases 
 of reser'vdsts, been placed on inactive duty. 
 (Act Feb. 24, 1919, sec. 1405, 40 Stat., 
 1151.) 
 
 ■ Home on board any receiving ship, and one 
 ration per day drudng a period of four 
 months following discharge, to be fm-nished 
 persons honorably discharged as authorized 
 
 by section 1429, Re^dsed Statutes. (Act 
 Feb. 8, 1889, 25 Stat., 657, as amended bv 
 act Mar. 3, 1899, sec. 16, 30 Stat., 1008, and 
 act Aug. 22, 1912, 37 Stat., 331.) See arti- 
 cles R-3667 and 1-4551, Na\-y Regulations 
 and Instructions, 1913. 
 
 Inaptitude, refund of enlistment bounty when 
 discharged for, mav be required in certain 
 cases. ^(Act Mar. 2, 1907, 34 Stat., 1176.) 
 
 Mileage allowed to men honorably discharged 
 from Na^^ or Marine Corps, and na-\'al 
 reservists honorably released from active 
 ser^dce. (Act June 3, 1916, sec. 126, 39 
 Stat., 217, as amended bv act Feb. 28, 
 1919, sec. 3, 40 Stat., 1203.) 
 
 National Home for Disabled Volunteer Soldiers: 
 Honorably discharged sailors who served in 
 the regular or volunteer forces of the United 
 States in time of war, entitled to benefits of 
 National Home. (Acts May 26, 1900, 31 
 Stat., 217; Jan. 28, 1901, sec. 5, 31 Stat., 
 745; Mar. 4, 1909, 35 Stat., 1012.) 
 
 Natm-alization: Honorable discharge from Na\y 
 or Marine Corps entitles holder to certain 
 pri\dleges with respect to naturalization. 
 (Act May 9, 1918, 40 Stat., 542.) 
 
 Ordinary discharge with recommendation for 
 reenlistment entitles Filipino to apply for 
 naturalization after required serAdce in the 
 Navy. (Act May 9, 1918, 40 Stat., 542.) 
 
 Pensions: Honorable discharge from one con- 
 tract of ser\dce during Ci^dl War held for 
 pension purposes to be honorable discharge 
 from all previous contracts of ser^dce during 
 said war. (Joint resolution, June 28, 1906, 
 34 Stat., 836, amending joint resolution, 
 July 1, 1902, 32 Stat., 750.) Honorable dis- 
 charge necessary for receipt of pension in 
 certain cases. (Act June 27, 1890, sec. 2, 
 26 Stat., 182, as amended by act Mav 9, 
 1900; act Feb. 6, 1907, 34 Stat., 879 ; 31 Sitat., 
 170; res., July 1, 1902, sec. 1,32 Stat., 750; 
 sec. 4730, R. S.; act Jan. 29, 1887, 24 Stat, 
 371; act Mar. 9, 1878, 20 Stat, 27, etc.) Pen- 
 alty for claim agents, attorneys, etc., re- 
 taining or refusing to deliver honorable-dis- 
 charge papers to owners thereof is proAdded 
 for by act of May 21, 1872 (17 Stat, 137). 
 
 Preference in ciAdl ser^dce: Persons honorably 
 dischai'ged from militar}^ or naval ser^dce 
 by reason of disability resulting from 
 wounds or sickness incurred in line of duty 
 to be preferred for appointments to civil 
 offices. (Sec. 1754, R. S. ; see also acts Jan. 
 16, 1883, sec. 7, 22 Stat, 406; Mar. 1, 1889, 
 sec. 5, 25 Stat., 762; Mar. 6, 1902, 32 Stat., 
 52; Mar. 3, 1905, 33 Stat., 1088.) Honor- 
 ably discharged soldiers, sailors, and ma- 
 rines, and widows and wives of such, en- 
 titled to preference in appointments to 
 clerical and other positions under the Gov- 
 ernment. (Act Mar. 3, 1919, sec. 6, 40 
 Stat., 1293; see also act Mar. 1, 1919, 40 
 Stat, 1224; act July 11, 1919, 41 Stat, 37; 
 act July 11, 1919, 41 Stat, 142; act Oct 28, 
 1919, 41 Stat, 319.) 
 
 Preference in civil service: In making any re- 
 duction of force in any of the executive de- 
 partments, preference to be given to reten- 
 tion of persons honorably discharged from 
 military or naval ser\dce and to widows and 
 orphans of deceased soldiers and saUors. 
 
 563 
 
Sec. 1426. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 (Act Aug. Id, 1S76, sec. 3, 19 Stat., 169; see ' 
 also act Aug. 23, 1912, sec. 4, 37 Stat., 
 413.) I 
 
 Preference in private employment: Respect- j 
 fully recommended by Congress to bank- { 
 ers, mercliants, manufacturers, mechanics, i 
 farmers, and persons engaged in industrial I 
 pursuits, to give preference in appoint- 
 ments to persons honorably discharged from 
 the military or naval service by reason of 
 wounds, disease, or the expiration of terms 
 of enlistment. (Sec. 1755, R. S.) 
 Purchase of discharge from Navy or Marine 
 Corps in time of peace is permitted in the 
 discretion of the President and under such 
 rules as he may prescribe. (Act Mar. 3, 
 1893, 27 Stat., 717.) Fiirlough for remain- 
 der of enlistment, subject to recall in time 
 of war or national emergency, in lieu of 
 discharge bv purchase, was authorized bv 
 act of Aug. 29, 1916 (39 Stat., 580). 
 Reinstatement of former Government em- 
 ployees who served as drafted or enlisted 
 men in war with Germany, if honorably 
 discharged, was authorized by act of Feb. 
 25, 1919 (40 Stat., 1164). See also act Julv 
 11, 1919 (41 Stat., 142). 
 Report of men entitled to honorable discharge 
 to be made to Secretary of the Navy by 
 everj' commanding officer of a vessel. (Sec. 
 1429, R. S.) 
 Undesu-able discharge, during first year of 
 enlistment, may result in refund of enlist- 
 ment bounty. (Act Mar. 2, 1907, 34 Stat., 
 1176.) 
 Uniforms may be retained and worn with dis- 
 tinctive insignia, by persona honorably 
 discharged from the Navy or Marine 
 Corps, after serving in the present war. 
 (Act Feb. 28, 1919, 40 Stat., 1202; see also 
 act June 3, 1916, sec. 125, 39 Stat., 216, as 
 amended by act Aug. 29, 1916, 39 Stat., 
 649; and act June 4, 1920, sec. 8, 41 Stat., 
 836.) 
 Historical note. — The act of March 2, 1855 
 (10 Stat., 627), providing in the first instance 
 for honorable discharges, is entitled "An act to 
 provide a more efficient discipline for the 
 Navy," and section one of that act gixes author- 
 ity to the Secretary of the Navy to grant the hon- 
 orable discliarge as a testimonial of fidelity and 
 obedience to those of the crew who enlisted for 
 three years he might deem entitled thereto, 
 while section two provides that " if any seaman, 
 ordinary seaman, landsman, or boy shall re- 
 enlist for three years, within three months after 
 his discharge, he shall, on presenting his honor- 
 able discharge, or on accounting in a satisfac- 
 tory manner for its loss, be entitled to pay dur- 
 ing the said three months, equal to that to 
 which he would have been entitled if he had 
 been employed in actual ser\'ice. ' ' This shows, 
 from the origin of this legislation, the distinc- 
 tion between the honorable discharge per se 
 and the honorable discharge as carrying to cer- 
 tain classes of enlisted men, originally only 
 four, the three months' extra pav. (2 Comp. 
 Dec, 608.) 
 
 The act of June 7, 1864 (13 Stat., 120), added 
 two other classes to whom an honorable dis- 
 charge carried with it the privilege of extra pay 
 upon reenUstment, to wit, firemen and coal 
 
 heavers, the lowest grades in that branch of the 
 service the same as the four lowest grades in 
 the seamen branch of the service were allowed 
 such extra pay upon reenlistment. (2 Comp. 
 Dec, 608.) 
 
 The Navy Regulations of 1876 (p. 100, par. 
 13) for the first time substituted the words 
 " any person " for the words " any seaman, ordi- 
 nary seaman, landsman," etc., in providing for 
 the payment of extra pay upon reenlistment. 
 How this change came to be made is not appar- 
 ent, and no reason can be assigned therefor, 
 unless it be that the honorable discharge pro- 
 vided for in section 1429, Revised Statutes, was 
 confounded with that of section 1426 and sec- 
 tion 1573. (2 Comp. Dec, 608.) 
 
 The joint resolution of June 11, 1896, ex- 
 tended the benefits conferred by sections 1426 
 and 1573, Revised Statutes, to all enlisted per- 
 sons now in the Navy, and authorized the passing 
 of accounts of pajinasters containing payments 
 of extra pay to all enlisted men as though they 
 had been included in said sections. Under this 
 resolution payment may now be made to an 
 enlisted man who reenhsted prior to its passage 
 and whose claim for extra pay was pending 
 before the paymaster but not actually paid be- 
 fore June 11. (2 Comp. Dec, 608.) 
 
 The purpose of this resolution of 1896 was to 
 legalize the practice of paying all enlisted men, 
 upon reenlistment, the extra pay, which prac- 
 tice had crept into the service without warrant 
 of law. This practice doubtless arose from the 
 fact that the honorable discharge provided for 
 in section 1429, Revised Statutes, was confused 
 with the honorable discharge granted under sec- 
 tion 1426. The object of the honorable dis- 
 charge provided for in section 1429 is stated in 
 that section to be "as a testimonial of fidelity 
 and obedience," while the honorable discharge 
 provided for in section 1426, taken in connec- 
 tion with section 1573, is seen to be for the 
 purpose of holding out the extra pay to the six 
 lowest classes of enlisted men in the Navy as 
 an inducement to reenllst. That this very evi- 
 dent intention of the law was recognized by the 
 Navy Department appears from an examina- 
 tion of the older regulations of the U. S. 
 Navy. But by the joint resolution cited, Con- 
 gress has seen fit to extend the privileges arising 
 from honorable discharges upon reenlistment 
 far beyond what was originally provided. (2 
 Comp. Dec, 608.) 
 
 As to term of enlistment in the Navy, see 
 note to section 1418, Revised Statutes. 
 
 Classes of discharges in the Navy. — 
 Under the Navy Department there long have 
 been and are now four kinds of discharges, 
 namely, expressly honorable, dishonorable after 
 court-martial [i. e., general court-mai'tlal], for 
 "bad conduct," also after court-martial [i. e., 
 either general court-martial or summary court- 
 martial], and "ordinary," familiarly called 
 "small" discharge. (28 Op. Atty. Gen., 83.) 
 
 "Honorable" and "ordinary" discharges 
 distinguished. — The "honorable discharge" 
 in the cases referred to in section 1573, Revised 
 Statutes, is that provided for in sections 1426 
 and 1429, Revised Statutes, and is dependent 
 upon fidelity and obedience in the service. It 
 differs from the "ordinary" discharge in that 
 the latter carries with it no testimonial as to the 
 
 564 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1426. 
 
 special good qualities and fitness of the holder. 
 It is the record shown by the "honorable" dis- 
 charge, coupled with service and reenlistment, 
 that entitles the seaman to increased pay under 
 section 1573. (4 Comp. Dec, 281.) 
 
 The so-called "ordinary discharge" in the 
 Navy has no express legislative authority, but 
 is the creature of regulation and long-estab- 
 iished administrative practice. Only the hon- 
 orable discharge, bad-conduct discharge, and 
 dishonorable discharge are provided for by laws 
 relating to the Navy. If it were attempted to 
 classify the ordinary discharge under one of 
 these statutory headings, it would necessarily 
 have to be grouped with the honorable dis- 
 charge, because neither bad-conduct nor dis- 
 honorable discharges can be issued without 
 sentence of court-martial. In some cases, how- 
 ever, ordinary discharges are issued under cir- 
 cumstances where it could hardly be said by 
 military men that the holder left the service 
 under honorable conditions; as one discharged 
 prior to completion of enlistment for physical 
 disability due to his own misconduct. (File 
 9209-114, Mar. 11, 1919.) 
 
 The technical "honorable discharge" in the 
 Navy is issued with few exceptions only to 
 those who have completed a full term of en- 
 listment. An "ordinary discharge" may, 
 however, constitute a man "honorably dis- 
 charged" from the Navy within the meaning 
 of the law providing for mileage on discharge. 
 The ' ' ordinary discharge ' ' blank does not 
 expressly characterize the discharge as honor- 
 able or otherwise. It does, however, state, 
 either expressly or by reference to an order of 
 the Department, the reason for the discharge, 
 and at the end of the blank under the head- 
 ing of ' ' character of discharge " is a place in 
 which is to be entered "good," "inaptitude," 
 or "undesirable," as the case may be. In 
 cases where the character of discharge is 
 expressly stated to be "good," it certainly 
 should be regarded as honorable within the 
 meaning of the mileage law. "Inaptitude" 
 does not import that the discharge is otherwise 
 than honorable. Neither is the entry "unde- 
 sirable" of itself sufficient to deprive the dis- 
 charge of an honorable character, for the man's 
 undesirability for the service might be due to 
 causes in no manner reflecting upon him. It 
 would seem that any discharge which is not 
 honorable should contain on its face entries 
 from which it can be determined with cer- 
 tainty that it is not an honorable one, and 
 that where such does not appear upon the face 
 of the discharge it should be regarded as hon- 
 orable. (File 9209-114, Mar. 11, 1919, con- 
 struing mileage, act of June 3, 1916, sec. 126, 
 39 Stat., 217, as amended by act of Feb. 28, 
 1919, sec. 8, 40 Stat., 1203; see also 25 Comp. 
 Dec, 771; 25 Comp. Dec, 792.) 
 
 The Bureau of Navigation may properly de- 
 termine what cases of ordinary discharges are 
 regarded as constituting the holders thereof 
 "honorably discharged" persons ^vithin the 
 meaning of those words as used in the mileage 
 law, as construed by the Judge Advocate Gen- 
 eral, or within the meaning which they have 
 acquired by administration practices in the 
 Army not incompatible with conditions exist- 
 ing in the Navy. (File 9209-114, Mar. 11, 1919.) 
 
 Honorable discharges in Army and Navy 
 not necessaiily same. — In using the phrase 
 "honorably discharged " Congress did not neces- 
 sarily intend it to have the same definition in 
 both the Army and Navy. One department 
 might treat one kind of conduct as inconsistent 
 with the allowance of an honorable discharge 
 and the other not, according to practical con- 
 siderations and the traditions of the two serA- 
 ices. In both serA-ices "dishonorable dis- 
 charge " was given only after a trial by court- 
 martial and as a punishment. In the Army, 
 in case of discharge for cause, without courts 
 martial, it was customary to state on the cer- 
 tificate that discharge was in pursuance of an 
 order, giving the number thereof, and this order 
 must be referred to to learn the specific cause. 
 There seems to be no statutory provision for a 
 certificate of express honorable discharge from 
 the Armv such as in the naval service is called 
 for bv Revised Statutes, section 1427. (28 Op. 
 Atty" Gen., 83.) 
 
 When payment of mileage was authorized 
 to men ' ' honorably discharged from the Army, 
 Navy, or Marine Corps," the words "honorably 
 discharged " were used in the same broad sense 
 with reference to the Navy that they have 
 with reference to the Army. As applied to 
 the Army these words do not have a restricted 
 meaning such as ordinarily attaches thereto in 
 naval parlance, and as the benefits of the law 
 are intended to be granted to both services 
 without discrimination, held, that an enlisted 
 man of the Navy should be regarded as 
 "honorably discharged" if his discharge was 
 of a kind generally regarded as an honorable 
 one "by the War and Navy Departments and 
 military men of the branch in question at the 
 time the separation or discharge took effect." 
 (File 9209-114, Mar. 11, 1919.) 
 
 Honorable discharge may be issued in 
 cases not expressly authorized by stat- 
 ute. — When Congress use the phrase "honor- 
 ably discharged " with reference to persons who 
 have served in the Navy, its language is not 
 necessarily limited to express honorable dis- 
 chargee granted under sections 1426 and 1427, 
 Revised Statutes, but may be construed as in- 
 tended to adopt or act upon the actual past dis- 
 charge as an honorable one if of a kind generally 
 so regarded by the Navy Department and mili- 
 tary men of that branch of the service at the 
 tinie the separation or discharge took place. 
 The question is not to be determined by the 
 recent or present opinions of such department 
 or naval men, concerning discharges happening 
 at the time of the Civil War or shortly after; but 
 is whether the discharge when granted belonged 
 to a class then commonly accepted among naval 
 men and at the Navy Department as consti- 
 tuting a man an "honorably discharged" per- 
 son. In other words, it is not a question of what 
 should have been granted, but what was grant- 
 ed. (28 Op. Atty. Gen,, 83.) 
 
 The naval authorities may issue so-called 
 '•'honorable discharges" as pro\-ided by Navy 
 Regulations, but such discharges can not carrj- 
 the right to pay and other benefits except when 
 issued in conformitv with the law that author- 
 izes such extra pay. The fact that he has re- 
 ceived an honorable discharge pursuant to ^a,^y 
 Regulations does not give him the statue of one 
 
 565 
 
Sec. 1426. 
 
 Pt.2. liFAnSED STATUTES. 
 
 The Navy. 
 
 receiving; an lionorablc tliaeharj;e authorized by 
 eectiou 1426, Revisod Statutes, or the statue of 
 one in some one of the clafisefl specified in sec- 
 tion 1573 as entitkHl to extra pay for reenlist- 
 ment. (2 C'onip. Dec, 5G3.) 
 
 The three months' extra pay for reenlistment 
 allowed by section 1573, Revised Statutes [prior 
 to amendment of that section), to seamen, ordi- 
 nary seamen, landsmen, firemen, coal heavers, 
 and boys, was limit(>d to the six grades of en- 
 listed men mentioned, and coidd not be allowed 
 to a person enlisted as a steward. (2 Comp. 
 Dec, 536.) 
 
 A steward to the commander in chief was not 
 one of the classes entitled to an honorable dis- 
 charge as provided in section 1426 [prior to 
 amendment of that section], which discharge 
 was a prerequisite to obtaining the advantages 
 of extra pay pro\dded for in section 1573. (2 
 Comp. Dec, 536.) 
 
 A man enlisted in the Navy as a writer, third 
 class, and granted an honorable discharge under 
 section 1429, Revised Statutes, as a yeoman, 
 after three years' service, was not entitled to the 
 extra pay for reenlistment allowed by section 
 1573 [prior to amendment of that section], to 
 the six classes of enlisted men named therein. 
 (2 Comp. Dec, 563.) 
 
 Character of discharge issued to enlisted 
 man is question for determination by War 
 or Navy Department. — The War and Navy 
 Departments are parts of the executive branch 
 of the Government, ha^•ing to do with a man's 
 discharge from the service as an executive mat- 
 ter, and having special care and executive 
 charge of the man's service and of his military 
 honor and standing. This charge they have 
 while the man is in the service, and until the 
 moment he leaves it. ^Miether he should go 
 wither without honor, these departments de- 
 termine when they part from him. \Mien they 
 do so determine, they become, at least in the 
 absence of fraud or gross mistake, functus 
 officio, and the executive branch of the Govern- 
 ment thereby becomes fimctus officio. (28 Op. 
 Atty. Gen., 83.) 
 
 The question whether a man was "honor- 
 ably discharged" from the Navy within the 
 meaning of the law providing for payment of 
 mileage on discharge, although a question in- 
 volving disbursements, is one for determina- 
 tion by the Navy Department and not by the 
 accounting officers. (File 9209-114, Mar. 11, 
 1919, citing 28 Op. Atty. Gen., 83, 90; 21 Comp. 
 Dec, 539-547.) 
 
 In determining the pensionable status of a 
 person who served in the Civil War, under the 
 acts of Jime 27, 1890 (26 Stat., 182), and of 
 February 6, 1907 (34 Stat., 879), the Department 
 of the Interior is concluded by the terms of a 
 discharge granted by the Navy Department as 
 "honorable." (28 Op. Atty. Gen., 83.) 
 
 By using the words "honorably discharged" 
 in the acts above referred to, Congress intended 
 to adopt or act upon the actual past discharges 
 as honorable, if of a kind generally so regarded 
 by the War and Navy departments and military 
 men of the branches in question at the time the 
 separation or discharge took place. (28 Op. 
 Atty. Gen., 83.) 
 
 In any case, in determining, long after dis- 
 charge, the nature of the discharge issued, 
 
 whether what was formerly done as an executive 
 act did or did not constitute the individual a 
 person "honorably discharged" — "of course, 
 from a practical standpoint, and as expert 
 evidence, it would be well to consider any pres- 
 ent views of the two military departments 
 upon the question whether or not the original 
 act was the granting of an honorable" dis- 
 charge. Those departments, even when no 
 longer in charge of the person, should and do 
 take an interest in the honor of the men who 
 have served their country, and that honor is, 
 with military men, the most important con- 
 sideration of their lives." (28 Op. Attv. Gen., 
 83.) 
 
 "It is peculiarly the province of the War 
 Department to make deductions of fact from 
 the records of military service of which that de- 
 partment is the natural and legal custodian, 
 and to decide military questions which relate 
 not only to the entrance into ser\dce but also 
 the cause or manner of severance from ser^dce 
 of officers and enlisted men." (21 Comp. 
 Dec, 539, 547. But see 20 Comp. Dec, 751, 
 note to sec. 236, R. S., tmder V, (A), "The 
 question whether or not the record of an en- 
 listed man in the Marine Corps is honest and 
 faithftil.'') See, in this connection, cases 
 noted under section 471, Revised Statutes, 
 "Jurisdiction, Commissioner of Pensions." 
 
 Eilect of discharge. — The honorable dis- 
 charge of a soldier is a formal, final judgment 
 passed by the Government on his entire military 
 record, and an authoritative declaration that 
 he left the ser^dce in a status of honor. (U. S. 
 V. Kelly, 15 Wall., 34.) 
 
 The Kelly case held that an honorable dis- 
 charge entitled a deserter to recover any pay or 
 bounty earned subsequent to his restoration to 
 duty, but it was not pretended that his honor- 
 able discharge, subsequently granted, gave him 
 a right to pay dining the period of his absence 
 from the service, or would have dispensed with 
 the forfeiture of pay incident to his desertion, 
 had any pay been due at the time. (File 
 26251-1963:1, Aug. 17, 1910, citing U. S. v. 
 Landers, 92 U. S., 77, 80.) 
 
 The mark of desertion entered on the record 
 of an enlisted man is not removed by his sub- 
 sequent honorable discharge. The case of II. S. 
 V. Kelly, as explained in U. S. r. Landers, 
 does not hold that an honorable discharge has 
 the effect of removing an existing mark of 
 desertion, nor that in consequence of such dis- 
 charge the departement's records should be 
 altered so as to show an incorrect state of facts, 
 and the Kelly case clearly does not authorize 
 such action to be taken. The Landers case 
 states that, "if the entry of desertion has been 
 improperly made, its cancellation can be ob- 
 tained by application to the War Department," 
 thus clearly holding that the mark of desertion 
 is not removed by the honorable discharge 
 subsequently issued to the deserter, but that, 
 on the contrary, its cancellation is dependent 
 upon an express determination by the' depart- 
 ment that it was "improperly made." The 
 fact that the deserter subsequently received an 
 honoi'able discharge does not affect the question 
 of removing the mark of desertion from his 
 record. (File 26251-1963:1, Aug. 17, 1910.) 
 
 566 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1426. 
 
 A discharge from the Navy operates in bar of 
 trial for a previous desertion from the Navy, 
 but not in bar of a previous offense committed 
 in the Marine Corps. They are distinct 
 branches of the service, and a discharge from 
 the former does not operate as a discharge from 
 the latter. (File 26251-5810:1, Feb. 20,^ 1912.1 
 
 The discharge of a man before having been 
 fully checked the amount of a court-martial 
 sentence operates as an implied remission of 
 the unexecuted portion of the sentence. (See 
 Comp. Dec, Apr. 6, 1914, 158 S. and A. Memo., 
 3035, note under sec. 236, R. S., "_VI. Set-off".) 
 [But permitting man to extend his enlistment, 
 instead of discharging him, under such circum- 
 stances, does not operate as an implied remis- 
 sion. (FHe 26806-131:44, Aug. 11, 1916.)] 
 
 The discharge of an enlisted man, while in 
 debt to the United States (other than indebted- 
 ness caused by sentence of court-martial not 
 fully checked) does not remit the amount of 
 such indebtedness, but if he is subsequently 
 reenlisted same may be checked against pay 
 coming due him under his current enlistment. 
 (Comp. Dec, Apr. 7, 1914, 158 S. and A. Memo., 
 3037; see note to sec. 236, R. S., "VI. Set-off.") 
 
 Under the Articles of War, prescribing limi- 
 tations for triiils by court-martial, it would 
 seem that a soldier may be arrested and tried 
 after the expiration of his term of service for 
 a military offense committed during such term 
 of service, so that the order for the court-martial 
 is issued within two years from the commission 
 of such offense. The case of Lord George Sack- 
 ville, as reported by Tytler in his treatise on 
 courts-martial, goes to sustain the jurisdiction 
 of the naval authorities to arrest and try the 
 offender, as well after the discharge from serv- 
 ice as before. (In re Bird, 3 Fed. Cas. No. 
 1428. See below, "\\Tien discharge takes 
 effect," and see, in this connection, note to 
 Constitution, Art. I, sec. 8, clause 14, under 
 "IV. Jurisdiction of Courts-Martial." See also 
 file 28550-951:3, May 13, 1919, and sec 1624, 
 R. S., art. 14.) 
 
 Service as marine counted in computing 
 threeyears' service forhonorabledischarge 
 from Navy. — An enlisted man of the Marine 
 Corps who was transferred, by author! tv of the 
 act of June 17, 1898 (30 Stat., 474), to the Hospital 
 Corps of the Navy, is entitled to credit for the 
 prior ser^-ice in the Marine Corps, in the same en- 
 listment he is serving out in the Hospital Corps, 
 in making up the time necessary to entitle him 
 to the honorable discharge provided for in sec- 
 tion 1426, Re\'ised Statutes, as amended. This 
 section applies to enlisted men of the Navy, but 
 when, by authority of law, the Secretary of the 
 Navy transfers an enlisted marine to the Hos- 
 pital Corps of the Navy, it is only a fair and 
 reasonable construction of section 1426 to hold 
 that it permits the prior service in the Marine 
 Corps, in the same enlistment that he is serving 
 out in the Hospital Corps of the Navy, to be 
 credited to him in making up the time neces- 
 sary to entitle him to an honorable discharge, 
 particularly in view of the fact that this is a 
 beneficial statute and that such construction 
 will carry out the well-settled policy of the 
 Government to encourage continuous service 
 and reenUstment of efficient men, who are the 
 only ones under Navy Regulations who can 
 
 receive such discharges, even after the full 
 service of three vears required. (11 Comp. 
 Dec, 700; see also file 5315-04, July 5, 1904, 
 noted under sec 1421, R. S.) 
 
 Honorable discharge of de facto enlisted 
 man. — One Kato Notaich enlisted as mess at- 
 tendant, for four years; not liking the service, 
 after one day's duty, he left; in his stead there 
 appeared Gonhichi Yamamoto, who states that 
 he was received on board ship as Kato Notaich; 
 although never regularly enlisted, he served 
 the full term of enlistment, and was honorably 
 discharged; thereafter he reenlisted under his 
 true name: Held, that he was entitled to the 
 benefits of his de facto enlistment and honorable 
 discharge therefrom, and that continuous serv- 
 ice certificate should be issued to him in his 
 true name. (File 5839-04, July 5, 1904.) In 
 this connection, see Op., J. A. G., Armv, Feb. 
 26, 1901, Circular, War Dept., March 18, 1901, 
 holding that undoubtedly men can become 
 soldiers in the military service of the United 
 States without formal enlistment; and if a man 
 who has signified his intention to enter the 
 military service is clothed, fed, armed, put on 
 duty — made a soldier of in fact — he becomes a 
 soldier in the service of the United States, even 
 though he is never "sworn," mustered, or 
 otherndse formally accepted into that service. 
 
 Power of courts to discharge enlisted 
 men.— In 12 Op. Atty. Gen. , 258, 266, it was held 
 that the authority conferred upon the Secretary 
 of War in regard to the discharge of Army recruits, 
 is not declared to be exclusive, and it may well 
 be doubted whether such power conferred upon 
 a merely ministerial officer can be held to oust 
 judicial inquiry upon habeas corpus into the 
 legality of the enlistment. (See also note to 
 sees. 761 and 1419, R. S. ; and see act of Mar. 3, 
 1915 (38 Stat., 931), quoted above, under sec. 
 1418, R. S.,with reference to discharge of minors 
 fraudulently enlisted in the Navy.) 
 
 Naturalization of honorably discharged 
 enlisted men. — Section 1418, Re\ised Stat- 
 utes, required enlistments in the Navy to be for 
 not exceeding five years; and section 1608 de- 
 clared that enlistments in the Marine Corps 
 should be for not less than five years. At the 
 same time honorable discharges were granted to 
 those who had ful filled the three-vear enlistment 
 in the Navy. (Sec. 1426, R. S.) the act of July 
 26, 1894 (28 Stat., 124), provided for the naturali- 
 zation of aliens who served five consecutive years 
 in the Na\'y and received an honorable discharge. 
 At the time this act was passed, it was possible 
 for persons who were in the naval ser^-ice to 
 produce evidence in the form of a certificate of 
 honorable discharge covering a full five-year 
 term of enlistment, or it was possible at "that 
 time to have proof of a shorter term of enlist- 
 ment covered by an honorable discharge and 
 proof of continued service under a further en- 
 listment. It may have been the intention of 
 Congress to require proof of five consecutive 
 years of servdce and a certificate of honorable 
 discharge covering such whole period. But by 
 act of March 3, 1899, section 16 (30 Stat., 1008), 
 the term of enlistment in the Navy was changed 
 to four years, and by act of March 3, 1901 (31 
 Stat., 1132), enlistment in the Marine Corps was 
 reduced to four years. The change in the term 
 \ of enlistment in" the Navy brings with it a cor- 
 
 567 
 
Sec. 1426. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 respondinp: modification in the requirements of 
 the naturaliziit-ion statute; otherwise its objecta 
 have been practically frustrated. Ilence, 
 proof of an alien's service of a four-year term 
 of enlistment in the Navy, his honorable dis- 
 charfje, ami his immediate reenlistment for a 
 further term of four years, the proof showdng 
 five continuous years of service, is sufficient 
 under the act of July 26, 1894. (In re 
 Brykczynski, 207 Fed. Rep., 813. By act 
 June 30, 1914 (38 Stat., 395), naturalization of 
 aliens was authorized upon evidence of service 
 in the Navy or Marine Corps of one enlistment 
 "of not less than four years," followed by an 
 honorable discharge, or an ordinary discharge 
 with recommendation for reenlistment; and by 
 act of May 22, 1917 (40 Stat., 84), naturalization 
 of aliens was authorized after one year's honor- 
 able service in the Naval Reserve Force. New 
 provisions for naturalization of persons having 
 service in the Navy and Marine Corps were 
 contained in act of May 9, 1918, 40 Stat., 542, 
 which expressly repealed the act of June 30, 
 1914, 38 Stat., 395.) 
 
 Necessity of certificate of discharge. — 
 "A soldier can not discharge himself," and 
 until he has been discharged by competent 
 authority his original contract continues bind- 
 ing upon him. It has been the practice in 
 the Navy to enter the mark of desertion against 
 men who leave the service without receiving 
 a discharge, although they may have satisfac- 
 torily completed their terms of enlistment, 
 and this practice was given legislative recog- 
 nition by the act of Congress approved August 
 14, 1888 (25 Stat., 442), section 1 of which 
 authorized the Secretary of the Navy to remove 
 the mark of desertion in certain of such cases, 
 but made it discretionary with him to do so or 
 not. (File 26251-5447, Dec. 8, 1911; see also 
 note to sec. 1418, R. S., under "Detention of 
 men after expiration of enlistment.") 
 
 WTiile there is no provision of law expressly 
 requiring that enlisted men of the Navy be 
 discharged in writing, as is required in the 
 Army (sec. 1342, R. S.^ art. 4), Congress has re- 
 peatedly in its legislation relating to the Navy 
 emphasized the necessity of a "discharge" 
 for the purpose of terminating an enlisted man's 
 obligation to the United States. (File 26251- 
 5447, Dec. 8, 1911; Op. Atty. Gen., Feb. 27, 
 1922, file 26251-26615:8.) 
 
 In American and English Encyclopedia of 
 Law, volume 20, page 628, title "Military 
 Law," it is stated that "The connection of an 
 enlisted man with the military or naval service 
 is regularly terminated by his death or dis- 
 char™." In support of this statement there is 
 citecl, among others, the case of Grant v. Gould 
 (1792), in which it wa's held that "a person in 
 pay as a soldier is fixed with the character of a 
 soldier; and if once he becomes subject to the 
 military character he never can be released but 
 by a regular discharge." (2 H. Bl., 69, 104.) 
 However, it should be remarked that when this 
 decision was rendered enlistments in England 
 were for life. (File 26251-5447, Dec. 8, 1911.) 
 
 The correct view appears to be that enlist- 
 ment, like marriage, is not merely a contract, 
 but a status; and although an enlisted man may 
 have fully performed his contract he can not 
 divest himself of his status as a person in the 
 
 military or naval service until regularly dis- 
 chargeci by competent authority. (File 26251- 
 5447, Dec. 8, 1911.) 
 
 Status of enlisted men not discharged 
 upon expiration of enlistment. — See note 
 to section 1408, Revised Statutes, under "Status 
 of mates when not discharged upon expira- 
 tion of enlistment." See also note to section 
 1418, Revised Statutes, under "Detention of 
 men after expiration of enlistment." 
 
 Revocation of discharge obtained by 
 fraud. — An honorable discharge, a certificate of 
 which a man obtained by falsehood and perjury, 
 must be treated as a nullity. (16 Op. Attv. 
 Gen., 349, 352; followed 28 Op. Atty. Gen., 170^ 
 
 Where an enlisted man obtained a discharge 
 from the Marine Corps upon condition that he 
 would enlist immediately in the Navy as a 
 hospital apprentice and then failed so to enlist, 
 the discharge may be canceled and the man 
 declared a deserter; if apprehended, he may be 
 tried by court-martial both for desertion and 
 conduct to the prejudice of good order and 
 discipline. (File 7657-159, Aug. 10, 1912; 
 C. M. O. 6, 1915, p. 9; see also file 26251- 
 6599; compare cases noted under sec. 1421, R. S.) 
 
 The Secretary of the Navy has authority to 
 revoke the discharge of an apprentice seaman 
 procured by fraud, and may resume jurisdic- 
 tion over the man. In this case the man made 
 a bogus confession, claiming that he had com- 
 mitted a murder for which he was wanted by 
 the civil authorities, and after his discharge 
 and delivery to the civil authorities repudiated 
 his confession. (28 Op. Atty. Gen., 170.) 
 
 Revocation of discharge issued under 
 illegal sentence of court-martial. — ^WTiere, 
 by the sentence of a court-martial, a soldier is 
 discharged from the service before the expira- 
 tion of his term of enlistment, and such sentence 
 is afterwards set aside as null and void, the 
 status of such soldier is not affected in any way 
 by such sentence, and he is deemed to have 
 been in the service all the time between the 
 sentence and the order setting it aside. (In re 
 Bird, 3 Fed. Cas. No. 1428; see also note to 
 sec. 1624, R. S., art. 32.) 
 
 Correction of errors in discharge. — The 
 War Department has power to correct mistakes 
 made in granting discharges to soldiers. (13 
 Op. Atty. Gen., 201; but see 13 Op. Atty. 
 Gen., 16".) 
 
 'When discharge takes effect. — Until a 
 soldier's discharge is issued and delivered to 
 him, or until such action is taken as to make 
 him legally chargeable with notice of his dis- 
 charge, he remains in the service. (2 Comp. 
 Dec, 95.) 
 
 A soldier having been absent on furlough at 
 the time of the discharge of his company, and 
 the certificate of his discharge having been 
 mailed to him, his discharge did not take effect 
 until he received the certificate or other notice 
 thereof. (6 Comp. Dec, 11. )_ 
 
 An enlisted man of the Marine Corps remains 
 in the service until receipt of his discharge or 
 until such action, is taken as will render him 
 legally chargeable with notice thereof, notwith- 
 standing the expiration of his term of enlist- 
 ment during his absence on furlough granted 
 at his own request. (2 Comp. Dec, 94; Dig. 
 Comp. Dec, 433.) 
 
 568 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1427. 
 
 An enlistment does not expire until midnight 
 of the last day of the term, and a discharge by 
 reason of expiration of enlistment is not effec- 
 tive prior to midnight although delivered at an 
 earlier hour of the day. Accordingly, held 
 that a man who died upon the last day of his 
 enlistment after the delivery of his discharge 
 by reason of the expiration of his enlistment 
 was in the status of an enlisted man in the 
 service at the time of his death. (File 27381-31 
 Feb. 5, 1917.) 
 
 A discharge as undesirable is effective when 
 delivered, and a man who was overpaid when 
 so discharged could not later on the same day, 
 upon discovery of the error, be legally brought 
 back to the ship and detained for disciplinary 
 action by the naval authorities upon refusal to 
 refimd the amount of overpayment. (File 
 26254-70, July 8, 1908.) 
 
 Where an offense is committed by a man on 
 the day but subsequent to the delivery of his 
 discharge, if the discharge was for any cause 
 other than expiration of enlistment, he was not 
 in the naval service when the offense ?vas com- 
 mitted, and therefore could not be tried by 
 court-martial for such offense notwithstanding 
 his reenlistment on the next day. If the dis- 
 charge was by reason of expiration of enlist- 
 ment, he was in the naval service when his 
 offense was committed, his discharge not hav- 
 ing become effective until midnight of that day. 
 Although the question is not free from doubt, 
 it is considered that, if a case of sufficient im- 
 portance, the man who reenlisted the next day 
 should, if his discharge was by reason of expi- 
 ration of enlistment, be brought to trial by 
 court-martial to the end that he might present 
 the jurisdictional question to the civil courts 
 by habeas corpus proceedings. If the offense 
 is discovered, and the accused placed under 
 arrest to await action, before his discharge 
 takes effect, the general rule is that jurisdiction 
 has thus attached and is not divested by any 
 subsequent change in the status of the accused. 
 (File 26504-298, Feb. 26, 1917. See also file 
 28550-9513, May 13, 1919, In re Bird, 3 Fed. 
 Cas. No. 1428, and sec. 1624, R. S., art. 14.) 
 
 Theft of honorable-discharge blanks. — 
 An enlisted man who steals honorable-discharge 
 blanks and is then discharged from the naval 
 service with a bad-conduct discharge, prior 
 to detection of the theft, may, when appre- 
 hended, be proceeded against in the ci\'il 
 courts of the United States for A-iolation of 
 section 47 of the Federal Triminal Code (act 
 Mar. 4, 1909, 35 Stat., 1097), or may be tried 
 by a naval court-martial for \dolation of sec- 
 tion 1624, article 14, Revised Statutes, the 
 
 same as though he had not been discharged, 
 as is specifically provided therein. (See file 
 26283-977, Feb. 14, 1916. In this case, it was 
 decided to try the accused in the civil court; 
 see file 26283-977:10, June 2, 1916.) 
 
 From the Navy Department's point of \dew 
 the theft of honorable-discharge blanks is of a 
 quite serious nature, and the quantum of 
 punishment to be imposed upon conviction 
 should be governed in a measure by con- 
 siderations looking to a prevention of similar 
 thefts by others. Honorable discharges are 
 by law and regulations awarded only to men 
 who have earned same by years of efficient 
 and honorable service in the Na\'y; and such 
 discharges entitle the holders to numerous 
 and substantial benefits from the Government. 
 Furthermore, in civil life the exhibiting of an 
 honorable discharge from the Na^•y opens the 
 door for the holder to employment by private 
 business institutions of the highest standing 
 as well as by Federal, State, and municipal 
 governments. Accordingly, where a man has 
 been apprehended who is confessedly guilty 
 of stealing such blanks, he should not be 
 allowed to escape too lightly. (File 26283- 
 977:10, June 2, 1916; see 8 Comp. Dec, 756.) 
 
 Where a person buys and sells honorable- 
 discharge blanks belonging to the Navy, it 
 would seem that he is guilty of violating sec- 
 tions 37 and 48 of the Criminal Code (35 Stat., 
 1096, 1098). (File 26509-163:2, July 29, 1916.) 
 
 Counterfeiting honorable-discharge 
 blanks. — AMiere honorable discharge blanks 
 are counterfeited and sold, it is possible that 
 prosecution may be had under sections 148 
 or 151 of the Criminal Code (35 Stat., 1115, 
 1116), which relate to counterfeiting and selling 
 " any obligation or other security of the United 
 States." These words do not in their ordi- 
 nary signification include honorable-discharge 
 blanks, but by section 147 of the Criminal Code 
 (35 Stat., 1115) they are given a broad defini- 
 tion, embracing any "representatives of value " 
 issued under any act of Congress. That 
 honorable-discharge certificates are "repre- 
 sentatives of value" would seem clearly to 
 follow from an examination of vari.ous statutes 
 relating to such discharges. [See laws noted 
 above, under this section.] In the opinion 
 of the Navy Department prosecution may l)e 
 had under the above sections of the Criminal 
 Code, but this is a question to be decided by 
 the Department of Justice. (File 26509-163:2, 
 July 29, 1916. Congress has since provided 
 specifically for the offense of forging, etc., cer- 
 tificates of discharge. See act Mar. 4, 1917, 
 39 Stat., 1182.) 
 
 Sec. 1427. [Enlisted men, form of honorable discharge.] Honorable dis- 
 charges shall be granted accordmg to a form i^reseril)ed by the Secretary of the 
 Navy.— (2 Mar., 1855, c. 136, s. 1, v. 10, p. 627. 7 June, 1864, c. Ill, v. 13, 
 p. 120.) 
 
 Continuous service certificates. — On 
 April 26, 1869, the Secretary of the Navy issued 
 a circular providing that all enlisted men, 
 except officers' cooks and stewards, "will re- 
 ceive, upon the expiration of their enlistments, 
 if they shall so elect, continuous-service cer- 
 
 tificates in lieu of the ordinary or honorable 
 discharges heretofore issued"; and providing 
 additional pay for persons holding continuous- 
 service certificates. The pro\dsions of this cir- 
 cular were incorporated in Navy Regulations, 
 1870, as articles 1070 and 1071, and with some 
 
 569 
 
Sec. 1427. 
 
 Pi. 2. REVISED STATUTES. 
 
 The Navy. 
 
 verbal changes appear as paragraphs 18 and 
 19, Navy Regulations, 1876. These regulations 
 were amended by General Order No. 327, dated 
 November 21, 1884, which provided in part as 
 follows: "From and after January 1, 1885, the 
 form of honorable discharge from the naval 
 service, authorized by section 1427, Revised 
 Statutes of the United States, shall be the 
 'honorable discharge and continuous-service 
 certificate.'" After this order there was no 
 provision for issuing continuous-service certifi- 
 cates, except in connection vvdth an honorable 
 discharge, and that was clearly the purpose of 
 the general order of November 21, 1884. (16 
 Comp. Dec, 354.) 
 
 "Any man who, having been honorably dis- 
 charged, or discharged with a recommendation 
 for reenlistment, shall within four mouths there- 
 after, reenlist for four years, shall receive in ex- 
 change for his discharge a continuous-service 
 certificate- and any man who shall have agreed 
 to extend nis term of enlistment for an aggregate 
 of four full years shall receive, after completing 
 the original four years for which enlisted, a con- 
 tinuous service certificate covering that period . ' ' 
 (Art. R-3529, Navy Regs., 1913.) 
 
 Form of honorable discharge.— "When- 
 ever any enlisted man, not holding a continuous- 
 service certificate, is discharged from the 
 naval service, either the form of honorable or 
 that of ordinary discharge shall be used." 
 (R-3611 (1), Navy Regs., 1913.) 
 
 "If the person discharged holds a continuous- 
 service certificate, neither form of discharge will 
 be necessary, but the appropriate column of the 
 
 certificate shall be filled out, and the character 
 of the discharge, such as ' honorable, ' ' ordinary, ' 
 'bad conduct,' or 'dishonorable' shall be desig- 
 nated therein; if either of the last two, a brief 
 statement of the cause shall be made in an 
 indorsement." (R-3611 (3), Navy Regs., 
 1913.) 
 
 "Should there be no honorable discharge 
 forms at hand upon the expiration of the term 
 of enlistment of any person who is entitled to 
 receive one, an ordinary discharge form may be 
 used; the words 'entitled to honorable dis- 
 charge,' however, must be written across the 
 face and signed by the commanding officer. 
 The holder thereof may, by communicating 
 with the Bureau of Navigation, Navy Depart- 
 ment, exchange such a paper for an honorable 
 discharge." (R-3613, Navy_ Regs., 1913.) 
 
 The form of honorable discharge which has 
 been prescribed by the Secretary of the Navy 
 under authority of this section (N. Nav. 56, 
 July, 1921) is headed "Honorable Discharge 
 from the United States Navy," has a serial 
 number, an engraving representing a battleship 
 at sea, is signed by the commanding oflacer, 
 bears notation as to the rating the man is best 
 qualified to fill, and reads as follows: 
 
 ' 'This is to Certify that is hon- 
 orably discharged from the and 
 
 from the Naval Service of the United States, 
 this day of " 
 
 On the reverse of the discharge form is given 
 the enlistment record and descriptive list of the 
 man to whom issued, together with certificate 
 of final payment. 
 
 570 
 
CHAPTER TWO. 
 
 GENERAL PROVISIONS RELATING TO OFFICERS. 
 
 Sec. 
 
 1428. Citizenship of officers. 
 
 1429. Report to be made of men entitled to 
 
 honorable discharge. 
 
 1430. Sale of wages to be discouraged. 
 
 1431. Leave and liberty to be granted by com- 
 
 manding officer. 
 
 1432. Commanding officers not required to act 
 
 as pay officers. 
 
 1433. Cormnanding officers may exercise con- 
 
 sidar powers. 
 
 1434. Commanding officers of squadrons to have 
 
 rank of "flag officer. " 
 
 1435. First lieutenants, na^'igation, and watch 
 
 officers. 
 
 Sec. 
 
 1436. Sea service; staff officers who have been 
 
 chiefs of bureaus. 
 
 1437. Detail of officers for service of War 
 
 Department. 
 
 1438. Officers to act as storekeepers on foreign 
 
 stations. 
 
 1439. Bonds of officers acting as storekeepers. 
 
 1440. Appointments in diplomatic or consular 
 
 servdce. 
 
 1441. Officers dismissed, or resigning to escape 
 
 dismissal. 
 
 1442. Furlough of officers. 
 
 Sec. 1428. [Citizenship of officers.] The officers of vessels of the United 
 States shall in all cases be citizens of the United States. — (28 June, 1864, c. 
 170, s. 1, V. 13, p. 201.) 
 
 Acting pay clerks, pay clerks, and chief pay 
 clerks must be citizens of United States. 
 (See act Mar. 3, 1915, 38 Stat., 942.) 
 
 American citizenship in general. (See Con- 
 stitution, fourteenth amendment, and Art. 
 I, sec. 8, clause 4.) 
 
 Army officers appointed in time of peace not 
 to be paid compensation unless citizens of 
 the United States. (Act Aug. 29, 1916, 39 
 Stat., 649.) 
 
 Dental Corps officers must be citizens of United 
 States. (See act Aug. 29, 1916, 39 Stat., 
 573, as amended by act July 1, 1918, 40 
 Stat., 709.) 
 
 Enlisted men of Navy required to be citizens, 
 with certain exceptions. (See art. R-3524 
 (1), Na\^ Regs., 1913.) 
 
 Members of Naval Fh'ing Corps must be citi- 
 zens of the United States. (See act Aug. 
 29, 1916, 39 Stat., 582.) 
 
 Members of the Naval Reserve Force must be 
 citizens of United States or of its insular 
 
 Eossessions (see act Aug. 29, 1916, 39 
 tat., 587); or must have declared their in- 
 tention to become citizens (act May 22, 
 1917, 40 Stat., 84.) 
 Natirralization of aliens who have served in 
 Navy or Marine Corps (act May 9, 1918, 
 40 Stat., 542); or in Naval Reserve Forc« 
 (act May 22, 1917, 40 Stat., 84.) 
 Regulations concerning citizenship. — 
 The Navy Regulations, 1913 (art. R-3301), 
 pro^dde that "no person shall be appointed 
 to any office in the Navy unless he is a citizen 
 of the United States." 
 
 Alien may legally be appointed to Naval 
 Academy as midshipman, but can not be 
 commissioned unless naturalized. — "There 
 
 is no statute explicitly making citizenship a 
 condition precedent to eligibility to appoint- 
 ment to the Naval Academy as a midshipman, 
 but inasmuch as officers of the Navy must be 
 citizens, a midsliipman can not be commis- 
 sioned an ensign if he be an alien." (Asst. 
 Sec. of the Na^^ to Hon. J. Van Vechten 
 Olcott, M. C, Nov. 1, 1907; followed, Nov. 
 26, 1912, file 26252-71; Mar. 22, 1913, file 
 26252-71:1; Aug. 29, 1913, file 26252-71:2; May 
 15, 1915, file 5252-68.) 
 
 Where an alien appointed to the Naval 
 Academy as a midshipman delays taking the 
 necessary steps to be natiuralized until it is 
 too late for him to complete his naturalization 
 by date of graduation, held, that he can not be ' 
 commissioned as an ensign upon graduation, 
 unless naturalized by a special act or joint 
 resolution of Congress, as was done in the case 
 of Eugene Prince, Julv 19, 1912 (37 Stat., 1346; 
 file 26252-71, Nov. 26, 1912). Held, further, 
 that the midshipman in this case could not 
 be lawfully allowed to graduate as an alien, 
 and su]>sequently be commissioned as an ensign, 
 upon being naturalized, with rank from date 
 of graduation, as this would be accomplishing 
 indirectlv what the law does not allow to be 
 done directly. (File 26252-71:1, Mar. 22, 1913; 
 file 26252-71:2, Aug. 29, 1913.) 
 
 It having been decided by the Navj' De- 
 partment, during a previous administration, 
 that a certain midshipman could not be com- 
 missioned as ensign if he be an alien, the case 
 has thereby become res judicata, and can not 
 be reopened, nor should it be referred to the 
 Attorney General for an opinion as to the cor- 
 rectness of the previous decision. (File 
 26252-71:2, Aug. 29, 1913.) 
 
 54641°— 22- 
 
 37 
 
 571 
 
Sec. 1428. 
 
 Ft. 2. REVISED STATUTES. 
 
 The Navy, 
 
 [In the case noted above, Congress passed a 
 special act, May 9, 1914 (38 Stat., 1268), which 
 was amended by another special act, May 21, 
 1914 (38 Stat., 1268), authorizing the issuance 
 of a commission to the alien midshipman upon 
 graduation, with a pro^^so that he should cease 
 to be an officer of the Navy if not naturalized 
 by a specified date. See hearings before Com- 
 mittee on Immigration and Naturalization, 
 House of Representatives, September 11, 1913, 
 file 26252-71:3.] 
 
 According to the doctrine of stare decisis, 
 whose application in this country is as old aa 
 the Government itself, the department's 
 ruling of November 1, 1907 [above noted|, 
 concenung the citizenship of midshipmen 
 and the ineligibility of aliens for appointment 
 as officers of the Navy, should not now be dis- 
 turbed. "It is almost as important that the 
 law should be settled permanently as that it 
 should be settled correctly. Its rules should 
 be fixed deliberately and adhered to firmly, 
 unless clearly erroneous. Vacillation is a 
 serious e^dl.' • (Gilman v. Philadelphia, 3 
 Wall., 724.) Accordingly, held that the ques- 
 tion of citizenship should be regarded as settled 
 in accordance with the previous rulings of the 
 department. (File 5252-68, Ma> 15, 1915.) 
 
 Since the department's nding of November 
 1, 1907 [above noted], the entire tendency of 
 the Government, both in laws which have since 
 been enacted and in regulations which have 
 since been promulgated, has been to insist upon 
 citizenship precedent to appointment in the 
 naval service in any capacity, either as an 
 officer or as an enlisted man. Accordingly, 
 while the department has decided that the 
 statutes do not specifically prohibit the appoint- 
 ment of an aHen to the Naval Academy as a 
 midshipman, such a prohibition may be em- 
 bodied in the regulations, and this would avoid 
 reciurence of the difficulties which arose out of 
 the case above noted, in which an alien passed 
 through the Naval Academy as a midshipman, 
 but much voluminous correspondence and two 
 separate acts of Congress were required before 
 he coidd be commissioned as an ensign upon 
 graduation prior to naturalization. (File 
 5252-68, May 15, 1915.) 
 
 Paragraph 14 of the "Regulations governing 
 the admission of candidates into the U. S. 
 Naval Academy as midshipmen," 1916, pro- 
 vides that "all candidates are reqidred to be 
 citizens of the United States." 
 
 Officers of the Naval Auxiliary Service. — 
 "Hereafter, in shipping officers and men for 
 service on board United States auxiliary ves- 
 sels, preference shall be given to members of 
 the Naval Reserve Force, and after two years . 
 from the date of approval of this act no person 
 shall be shipped for such service who is not a 
 member of the Naval Reserve Force herein 
 provided." (Act Aug. 29, 1916, 39 Stat., 589.) 
 
 National Naval Volunteers. — Offices held 
 by officers of the National Naval Volunteers 
 ^Act Aug. 29, 1916, 39 Stat., 593) being offices 
 in the Navy within the meaning of Article 
 Er-3301, Navy Regulations, 1913 [above quoted], 
 before anyone may be appointed to an office in 
 the National Naval Volunteers he must not 
 only have declared his intention to become a 
 citizen but he must in fact be a citizen. (C. 
 
 M. O. 22-1917,p. 9; file 3973-184, Mar. 17, 1917. 
 As to Naval Militia, see file 3973-129, Dec. 18, 
 1915. The Inws relating to the National Naval 
 Volunteers and Naval Militia were repealed by 
 act July 1, 1918, 40 Stat., 708; the laws relating 
 to the Naval MiUtia were partially and tem- 
 porarily revived by act of Jime 4, 1920, 40 
 Stat.. 817.) 
 
 Status of officer who resumed foreign 
 citizenship after retirement. — Section 1428, 
 Revised Statutes, has for many years been re- 
 garded as requiring that officers of the Navy shall 
 be citizens of the United States. Congress has 
 fully and completely recognized this require- 
 ment and has thereby given legislative approval 
 to the Navy Department's practice, decisions, 
 and regulations on the subject. Accordingly 
 held, that a retired machinist forfeited and 
 abandoned his office in the Na\^ by ex- 
 patriating liimself and resuming his foreign 
 citizenship. Citizenship is not merely a con- 
 dition precedent to appointment in the Navy, 
 but is a qualification necessary in order to con- 
 tinue holding office therein. The act of an 
 officer in vohnitarily removing an essential 
 qualification would seem to render him in- 
 competent longer to hold office, and this is 
 peculiarly applicable in the case of a naval 
 officer who renounces allegiance to his own 
 Government and assimies allegiance to a foreign 
 state. Retired officers under the law are in 
 time of war, under section 1462, Revised 
 Statutes, available for any duty which may be 
 reqidred of them. In view of section 1428, 
 Revised Statutes, it would be unlawful to 
 employ this officer on board any vessel in liis 
 capacity as a machinist, whose paramount duty 
 in time of war woidd be on board fighting ships. 
 (File 26252-105:3, Oct. 19, 1916; see Gay v. 
 U. S., No. 33756, Ct. Cls.) 
 
 Residence of officers in foreign coun- 
 tries. — It is the opinion of the Judge Advocate 
 General that officers of the Navy, who are 
 required to be citizens of the United States, 
 are also required, in accordance with the 
 customs of the service, considerations of policy, 
 and the desirability of maintaining amicable 
 relations with other nations, to have their legal 
 residence in the United States or one of its 
 possessions. The Navy Regulations (art. 234, 
 par. 2, 1909), providing that "no officer, active 
 or retired, shall change his usual residence with- 
 out permission of the Bureau of Navigation," 
 did not contemplate that permission would be 
 granted for an officer to reside outside of the 
 United States. This is made plain by other 
 pro\'isions of the Regulations (art. 1526, 1909) 
 that "permission to leave the United States 
 will be granted only by the Secretary of the 
 Navy.'' Serious complications might grow 
 out of the situation which would exist were an 
 officer of the Navy permitted to have his legal 
 residence in a foreign country. This is indi- 
 cated by decisions of the State Department 
 with reference to the citizenship, allegiance, 
 right to protection in person or property, status 
 in event of war, etc., of persons who, while 
 citizens of the United States, voluntarily 
 mthdraw their persons and property from the 
 country and become and remain domiciled in 
 foreign countries. (File 17606-49, Dec. 17, 
 1912.) 
 
 572 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1430. 
 
 ment; and that the case in this respect is to be 
 distinguished from one in which an officer had 
 deliberately concealed disabilities rendering 
 him ineligible for appointment. Further held, 
 that the qualifications of the officer are presumed 
 to have been ascertained and found satisfactory 
 pre^-ious to his appointment to the office of 
 chief pay clerk, and that, in the absence pf 
 fraud, his qualifications can not, under certain 
 conditions, thereafter be inquired into, al- 
 though it should be claimed that he did not 
 possess the statutory qualifications for appoint- 
 ment. (File 5460-82, June 3, 1916, citing 28 
 Op. Atty. Gen., 180, as to conclusiveness of 
 appointment as establishing qualifications for 
 the office. But see 31 Op. Atty. Gen., 419, 
 noted under Constitution, Art. II, sec. 2, 
 clause 1, subheading "Constructive pardon.") 
 
 Appointment as ofl&cer after forfeiting 
 citizenship by desertion. — An appointment 
 as a commissioned officer in the Navy, to wit, 
 chief pay clerk, was issued by the President, 
 by and with the advice and consent of the 
 Senate, to a convicted deserter from the Army, 
 who had forfeited his right of citizenship and 
 been rendered forever incapable of holding any 
 office of trust or profit under the United States. 
 (Sees. 1996 and 1998, R. S.) Wlaen said com- 
 mission was issued, it was of record in the Navy 
 Department that the othcer was a convicted 
 deserter from the Army. Ildd, that, while 
 not free from doubt, by a liberal interpretation, 
 the President's action in commissioning this offi- 
 cer under the circumstances stated may be re- 
 garded as a constructive pardon so as to remove 
 the disabilities imposed by law and which 
 would otherwise have prevented his appoint- 
 
 Sec. 1429. [Report to be made of men entitled to honorable discharge.] 
 It shall be the duty of every commanding officer of a vessel, on retm-ning from 
 a cruise, and immediately on his arrival in port, to forward to the Secretary 
 of the Navy a hst of the names of such of the crew who enhsted for three 
 yeai-s as, in his opinion, on being discharged, are entitled to an ''honorable 
 discharge" as a testimonial of fidehty and obedience; and he shall grant the 
 same to the persons so designated. — (2 Mar., 1855, c. 136, s. 1, v. 10, p. 627.) 
 
 See section 1426, Revised Statutes, and note thereto, concerning honorable discharges in 
 general . 
 
 Sec. 1430. [Sale of wages to be discouraged.] Every commanding officer 
 of a vessel is required to discourage his crow from selhng any part of their 
 prize-money, bounty-money, or wages, and never to attest any power of attorney 
 for the transfer thereof until he is satisfied that the same is not granted in con- 
 sideration of money given for the purchase of prize-money, bounty-money, or 
 wages. [See § 4643.]— (30 June, 1864, c. 174, s. 12, v. 13, p. 310.) 
 
 Allotments of pay by officers of the Navy are au- 
 thorized by act of June 10, 1896 (29 Stat., 
 361). 
 
 Allotments of pay by enlisted men in the mili- 
 tary or naval forces of the United States 
 are authorized by act of October 6, 1917, 
 Art. II (40 Stat., 402, as amended). 
 
 Allotments of pay by enlisted men of the Army 
 
 are permitted by act of March 2, 1899, sec. 
 
 tion 16 (30 Stat., 981), and act of March 2, 
 
 1901 (31 Stat., 896). 
 Assignments of prize or bounty money were 
 
 regulated by section 4643, Revised Statutes. 
 
 Assignments of wages by enlisted men of the 
 Navy are void unless authorized by com- 
 manding and pay officers. (Sec. 1576, R. S.; 
 but see Act Oct. 6, 1917, 40 Stat., 403, sec. 
 202, as to allotments.) 
 
 Assignments of claims against United States are 
 prohibited, with certain exceptions, by 
 section 3477, Revised Statutes. 
 
 Assignments of wages by merchant seamen are 
 prohibited, with certain exceptions, by sec- 
 tion 4536, Revised Statutes. 
 
 Assignments of pay by employees of the Depart- 
 ment of Asriculture are permitted by act 
 of March 4^1909 (35 Stat., 1057). 
 
 Assignments of pay by employees of the Coast 
 and Geodetic Survey are permitted by act 
 of March 4, 1907 (34 Stat., 1322). 
 
 Assignments of pay by employees of the Geo- 
 logical Survey are permitted by act of June 
 30, 1906 (34 Stat., 727). 
 
 Assignments of pay by employees of the Recla- 
 mation Service are permitted by act of May 
 27, 1908 (35 Stat.;, 350). 
 
 Assignments of pay by commissioned officers 
 of the Armv are permitted by act of March 
 2, 1907 (34 Stat., 1159), and act of March 2, 
 1913 (37 Stat., 710). 
 
 Assignments of pay by noncommissioned offi- 
 cers and privates of the Army are prohibited 
 by section 1291, Revised Statutes. 
 
 Assignments of pensions are prohibited by sec- 
 tion 4745, Revised Statutes, as amended by 
 act of February 28, 1883, section 2 (22 Stat., 
 432). 
 
 Bounty monej and prize money were abolished 
 by Navy personnel act of March 3, 1899, 
 section 13 (30 Stat., 1006). 
 
 Deposit of savings by enlisted men of the Navy 
 
 is authorized by act of February 9, 1889 (25, 
 
 Stat., 657); and by enlisted men of Marino 
 
 Corps by act of June 29, 1906 (.34 Stat., 579). 
 
 Attachment of wages by creditors. — ' The 
 
 important question is, whether the money in 
 
 573 
 
Sec. 1432. 
 
 Pt.2. RE VISED S TA T UTES . 
 
 The Navy. 
 
 the hands of the purser, thonsh due to the sea- 
 men for wages, was attachable. A purser, it 
 would seem, can not in this respect, be distin- 
 giiished from any other disbursing agent of the 
 Government. If the creditors of these seamen 
 may, by process of attachment, divert the 
 public money from its legitimate and appro- 
 priate object, the same thing may be done as 
 regards the pay of our officers and enlisted men 
 of the Army and of the Navy; and also in every 
 other case where the public funds may be 
 placed in the hands of an agent for disbursement. 
 To state such a principle is to refute it. No 
 government can sanction it. At all times it 
 would be found embarrassing and under some 
 
 circumstances it might be fatal to the public 
 service. The funds of the Government are 
 specifically appropriated to certain national 
 objects, and if such appropriations might be 
 diverted and defeated by State process or 
 otherwise, the functions of the Government 
 might be suspended. So long as money 
 remains in the hands of a disbursing officer, it 
 is as much money of the United States as if it 
 had not been drawn from the Treasiiry. Until 
 paid over by the agent of the Government to 
 the person entitled to it, the fund can not in any 
 legal sense be considered a part of his effects. 
 The purser is not the debtor of the seaman." 
 (Buchanan v. Alexander, 4 How., 19.) 
 
 Sec. 1431. [Leave and liberty to be granted by commanding officer.] It 
 shall be the duty of commanding oflftcers of vessels, in granting temporary 
 leave of absence and Hberty on shore, to exercise carefully a discrimination in 
 favor of the faithful and obedient.— (2 Mar., 1855, c. 136, s. 3, v. 10, p. 627.) 
 
 Deprivation of liberty on shore may be in- 
 flicted by commanding officer upon enlisted 
 men as a punishment, by authority of sec- 
 tion 1624, Revised Statutes, article 24. 
 Deprivation of liberty on shore on foreign 
 station maybe inflicted upon enlisted men 
 by sentence of summary court-martial, im- 
 der section 1624, Revised Statutes, article 
 30, or by sentence of deck court, imder act 
 of February 16, 1909, section 2 (35 Stat., 
 621). 
 Furlough of officers by Secretary of the Navy. 
 
 (Sec. 1442, R. S.) 
 Fiulough without pay to enlisted men, subject 
 to recall in time of war or national emer- 
 gency. (Act Aug. 29, 1916, 39 Stat., 
 580.) 
 No pay allowed officers and enlisted men. Navy 
 or Marine Corps, absent on account of in- 
 jury, sickness or disease resulting from their 
 own misconduct. (Act Aug. 29, 1916, 39 
 Stat., 580, as amended bv act July 1, 1918, 
 40 Stat., 717.) 
 Liberty granted according to conduct. — 
 "The granting of liberty on shore and other 
 privileges will depend upon the conduct class, 
 and the commander in chief shall establish 
 rules defining the privileges or restrictions for 
 each class, which shall be uniform throughout 
 his command." (Art. R-3668 (8), Navy Regs., 
 1913.) 
 
 "First-class conduct men shall be allowed 
 every indulgence compatible with the demands 
 of duty and with the exigencies of the service; 
 and in respect to privileges a clear distinction 
 should be made between them and men in 
 the second-conduct class. Special privileges 
 shall be allowed to the special first class when 
 it is possible to extend them to a small number 
 only." (Art. R-3668 (9), Navy Regs., 1913.) 
 
 Only commanding oflS.cer to grant leave 
 or liberty. — "\Mien the sanitary or other con- 
 ditions of the port do not render it inadvisable, 
 and when authorized by the senior officer 
 present, the commanding officer shall grant 
 liberty or leave of absence to the enlisted 
 men, but such liberty or leave of absence shall 
 not be granted by other than the commanding 
 officer." (Art. R-3710 (1), Navy Regs., 1913.) 
 
 Leave of absence is a favor. — Neither the 
 Secretary of War nor any officer of the Govern- 
 ment can force a leave of absence upon an 
 officer or soldier. A leave of absence is a 
 favor extended. (Hunt v. U. S., 38 Ct. Cls., 
 709, 710; 11 Comp. Dec, 570; 16 Comp. Dec, 
 613; U. S. V. Williamson, 23 Wall., 415; see 
 sec. 1442, R. S., and note to sec 416, R. S., 
 under "Suspension of employees." 
 
 Special duty pay not allowed, men on 
 leave. — Enlisted men of the Navy, while on 
 leave or liberty on shore, are not "serving" 
 on board of submarines within the meaning of 
 Navy Department General Order No. 20, of 
 January 1, 1901, allowing additional pay to 
 enlisted men "while sei^ving on board of sub- 
 marine vessels of the Navy." While upon au- 
 thorized leave they are not in the performance 
 of such service or duty of any kind. (19 Comp. 
 Dec, 754, citing Colhoun v. U. S., 38 Ct. Cls., 
 198, 202.) During the present war enlisted 
 men of the Navy and Marine Corps detailed 
 as gun pointers or gun captains shall be entitled 
 to the additional pay provided for such detail 
 "while temporarily absent by proper authority 
 from the place where ordinarily required to 
 perform duty under such detail," (Act Mar. 
 29, 1918, 40 Stat., 500.) 
 
 Persons on leave or liberty; status; "line 
 of duty." — See note to section 1451, Revised 
 Statutes. 
 
 Sec. 1432. [Commanding officers not required to act as pay officers.] No 
 commanding officer of any vessel of the Navy shall bo required to perform the 
 duties of a paymaster, passed assistant paymaster, or assistant paymaster. — 
 (17 July, 1861, c. 4, s. 4, v. 12, p. 258.) 
 
 574 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1433. 
 
 As to acting appointment of pay officers, see 
 section 1381, Revised Statutes, and note 
 thereto. 
 
 As to appointment of special disbursing 
 
 agents, see section 3614, Revised Statutes. 
 
 The -words "paymaster, passed assistant 
 
 paymaster, or assistant paymaster," are 
 interpreted in practice as meaning " supply 
 officer." (See art. 848, Navy Regs., 1920. 
 As to grades in Supply Corps, see note to sec. 
 1376, R. S.) 
 
 Sec. 1433. [Commanding officers may exercise consular powers.] The com- 
 inanding officer of any fleet, squadron, or vessel acting singly, wlien upon the 
 high seas or in any foreign port where there is no resident consul of the United 
 States, shall be authorized to exercise all the powers of a consul in relation 
 to mariners of the United States. — (20 Feb., 1845, c. 17, s. 2, v. 5, p. 725. j 
 
 Any naval officer accepting appointment in 
 
 diplomatic or consular service, considered 
 
 as having resigned his office. (See sec. 
 
 1440, R. S.) 
 Controversies between merchant seamen and 
 
 officers of any vessel of the United States, 
 
 arising at sea or in foreign ports, shall be 
 
 under exclusive jurisdiction of consular 
 
 officers of the United States, whenever so 
 
 stipulated by treaty or convention. (Sec. 
 
 4079, R. S.) 
 Destitute seamen of the United States to be 
 
 returned by consuls to some port in the 
 
 United States. (Sec. 4577, R. S.) 
 Marriages may be performed by any consular 
 
 officer of the United States in a foreign 
 
 country, between persons who would ])e 
 
 authorized to marry if residing in the Dis- 
 trict of Columbia. (Sec. 4082, R. S.) 
 Merchant seamen of the United States on for- 
 eign voyages may complain to any com- 
 manding officer of the Navy concerning 
 
 unfit water or provisions furnished them, 
 
 and such commanding officer shall make an 
 
 investigation, and if complaint is well 
 
 founded, shall make a report to the master 
 
 of the ship, and to the United States judge 
 
 for the district embracing the port to which 
 
 such ship is bound. (Sec. 4565, R. S.) 
 
 Similar action to be taken in cases of mer- 
 chant seamen bound from Atlantic to Pacific 
 
 port of United States or vice versa. (Sec. 
 
 4565, R. S.) Laws relating to seamen on 
 
 foreign voyages shall apply to seamen on 
 
 vessels going from the United States and 
 
 its possessions to Philippine Islands. (Act 
 
 July 1, 1902, sec. 84, 32 Stat. 711.) 
 Notarial acts, which any notary public is re- 
 
 qiured or authorized by law to do within 
 
 the United States, shall be performed by 
 
 any consular officer when application is 
 
 made to him therefor. (Act Apr. 5, 1906, 
 
 sec. 7, 34 Stat., 101; sec. 1750, R. S.) No 
 
 such act^shall be valid within the jurisdic- 
 tion of the Government of the United 
 
 States, unless necessary stamps are affixed 
 
 and canceled. (Act Apr. 5, 190G, sec. 10, 
 
 34 Stat., 102.) 
 Paymasters of the Navy on foreign stations shall 
 
 render, when practicable, with their ac- 
 counts, official certiiicate from resident 
 
 consul, vouching that all purchases and 
 
 expenditures were made at the ruhng mar- 
 ket prices. (Sec. 3723, R. S.) 
 Proceedings in regard to effects of deceased 
 
 seamen are prescribed by sections 4539- 
 
 4541, Revised Statutes, and act of March 3, 
 1897, section 4 (29 Stat., 689). With 
 reference to deceased persons in the naval 
 service, provisions for disposition of their 
 effects are made by act of March 29, 1918 
 (40 Stat., 499). 
 Pro\isions relating to consular officers are con- 
 tained in Revised Statutes, sections 1689- 
 1752. 
 Pro\isions relating to merchant seamen are 
 contained in Revised Statutes, sections 
 4501 to 4612. 
 Testamentary disposition by citizens of United 
 States dying abroad shall be strictly ob- 
 served by consular officers, or the latter 
 shall officially aid any person appointed 
 by the deceased to manage his property. 
 (Sec. 1711, R. S.) Consuls shall take pos- 
 session of personal estate of citizens dying 
 abroad and leaving no legal representative, 
 shall inventory same, collect debts due, sell 
 perishable articles, etc., at auction, and 
 transmit balance of estate to the Treasury 
 of the United States. (Sec. 1709, R. S.) 
 Marriages on board naval vessels. — ' ' The 
 commanding officer of a ship shall not perform 
 a marriage ceremony on board; nor shall he 
 permit one to be performed when the ship is 
 outside of the territory of the United States, 
 except in accordance with the local laws and 
 laws of the State, Territory, or district in 
 which the parties are domiciled, and in pres- 
 ence of a diplomatic or consular official of 
 the United States, who has consented to issue 
 the certificates and make the returns required 
 by the consular regulations." (Art. 847 Navy 
 Regs., 1920.) 
 
 Destitute American seamen. — The com- 
 manding officer of a naval vessel, by authority 
 of the senior officer present, may, when on a 
 foreign station, receive on board distressed 
 seamen of the United States for passage to the 
 United States, provided they bind themselves 
 to be amenable in all respects to the laws and 
 regulations for the government of the Navy. 
 (Art. 905, Navy Regs., 1920.) 
 
 Merchant vessels needing supplies may be 
 furnished with such as can be spared, for 
 which charge shall be made at the average 
 price of the sui^plies; or, in case of extreme 
 distress, gratuitous assistance may be furnished. 
 (Art. 1-4554, Naval Instructions, 1913.) 
 
 The senior officer present may require the 
 medical officers of his command to render 
 professional aid to persons not in the naval 
 service when necessary and demanded by the 
 
 575 
 
Sec. 1434. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 laws of humanity. (Art. 685, Navv Rega., 
 1920.) 
 
 "In the absence of a diplomatic or con- 
 sular officer of the United States at a for- 
 QV^w port the commander in chief, as senior 
 olhcer present, has authority (a) To exercise 
 the powers of a consul in relation to mariners 
 of the United States (sec. 1433, R. S.); (6).To 
 communicate or remonstrate with foreign civil 
 authorities as may be necessary; (c) To urge 
 upon citizens of the United States the neces- 
 sity of abstaining from participation in poUtical 
 controversies or violations of the laws of neu- 
 traUty." (Art. 720, Navy Regs., 1920.) 
 
 Juiisdiction of consular and military of- 
 ficers. — A member of the crew of an Army 
 transport was held on board as a prisoner upon 
 the charge of having committed an offense 
 against a Japanese subject. The Japanese au- 
 thorities came on board to arrest him, but the 
 Army officer in command refused to surrender 
 the accused. The United States consul re- 
 quested the commanding officer to deliver the 
 man to the Japanese authorities, but this was 
 refused. The United States consul then asked 
 the commanding officer if he would obey the 
 consuTs order to tm-n over the man to the Japa- 
 nese authorities and was answered in the nega- 
 tive. Next day the Japanese procurator with a 
 party came to take the prisoner, but was told he 
 would only be gi^-en up by exercise of superior 
 force. The United States consul then told the 
 commanding officer that he would not be al- 
 lowed to sail until the matter was settled be- 
 tween the United States and the Japanese Gov- 
 ernment, but on receiving sailing orders, the 
 Thomas sailed, after the commanding officer 
 had assured the Japanese authorities that the 
 man would be prosecuted The man, who was 
 a deserter from the Navy, was later turned over 
 
 to the naval authorities for trial. (File 5542-01, 
 Aug. 20, 1900. As to jurisdiction of diplomatic 
 and naval authorities, see file 7760-2, Aug. 13, 
 1907; 4 Moore's Dig. 616, 617.) 
 
 Duty to advance commercial interests. — 
 " So far as lies within their power, commanders 
 in chief, di\dsion commanders, and command- 
 ing officers of ships shall protect all merchant 
 vessels of the United States in lawful occupa- 
 tions, and advance the commercial interests of 
 this country, always acting in accordance with 
 international law and treaty obligations." 
 (Art. 726, Navy Regs., 1920.) 
 
 " If the Navy Department, in order to assist 
 in the extension of United States trade and 
 commerce and to carry out the general pur- 
 poses indicated in the application by the 
 Department of State, thinks fit to send an 
 officer of the Navy, skilled in matters of ord- 
 nance, to a South American capital, it is en- 
 tirely competent for the Secretary of the Navy 
 to direct him to be sent, not as the represent- 
 ative of a private person or company, nor in 
 its employment, but at the expense of the 
 Government as a representative of the Navy 
 Department and for the purpose of assisting 
 all Americans whose interests are such as, in 
 the opinion of the Secretary, to justify that 
 proceeding." (29 Op. Atty. Gen., 45.) 
 
 Merchant seamen as prisoners on naval 
 vessels. — "The commanding officer of a ship 
 shall not, while on a foreign station, receive on 
 board as prisoners seamen from merchant ves- 
 sels, unless the ^sitnesses necessary to substan- 
 tiate the charges against them are also received, 
 or adequate means adopted to insure the pres- 
 ence of such witnesses on the arrival of the 
 prisoners at the place where they are to be 
 handed over to the civil authorities." (Art. 
 903, Navj^ Regs., 1920.) 
 
 Sec. 1434. [Commanding officers of squadrons to have rank of "flag 
 officers."] The Presideut may select any officer not below the grade of com- 
 mander on the active list of the Navy, and assign him to the command of a 
 squadron, with the rank and title of "flag-officer;" and any officer so assigned 
 shall have the same authority and receive the same obedience from the com- 
 manders of ships in his squadron, holding commissions of an older date than 
 his, that he would be entitled to receive if his commission were the oldest. — 
 (21 Dec, 1861, c. 1, s. 4, v. 12, p. 329.) 
 
 Assignment of retired officers to command 
 
 squadrons. (See sec. 1464, R. S.) 
 Pay of officers of the Navy shall be based on 
 
 their rank and length of service. (Act Aug. 
 
 29, 1916, 39 Stat."; 581.) 
 Rank of officers not to be changed, except 
 
 in accordance with the provi.sions of exist- 
 ing law, and by and mth the ad\'ice and 
 
 consent of the Senate. (Sec. 1506, R. S., 
 
 as amended by act June 17, 1878, 20 Stat., 
 
 144.) _ 
 The President may formulate appropriate 
 
 rules governing assignments to command of 
 
 vessels and squadrons. (Act Mar. 3, 1901, 
 
 31 Stat., 1133.) 
 The President may designate six officers of the 
 
 Navy for command of fleets or subdivisions 
 
 thereof, not more than three to have the 
 
 rank of admiral and the others the rank of 
 vice admiral ; such selections in time of war 
 to be made from the grades of rear admiral 
 or captain on the active list, and in time of 
 peace from among rear admirals on the 
 active list; but nothing in this act shall be 
 construed to amend or repeal sections 1434, 
 1463, and 1464, Revised Statutes. (Act 
 May 22, 1917, sec. 18, 40 Stat., 89.) 
 Flag oflB.cers. — See note to section 1407, 
 Revised Statutes, as to who are flag officers. 
 By act of January 16, 1857, section 5 (11 
 Stat., 154), it was provided "that captains in 
 command of squadrons shall be denominated 
 flag officers." This provision is in the right 
 direction, toward the delivery of the mind of 
 the United States from the superstitious influ- 
 ences which have so long resisted the ascrip- 
 
 576 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1435. 
 
 tion of proper names of command to superior 
 officers in the Navy, while admitting such in 
 the Army. In the latter it never seems to 
 have been supposed that paramount considera- 
 tions of public policy require us to stop at the 
 rank of "captain" and to apply that appella- 
 tion indiscriminately to all field and general 
 officers. (8 Op. Atty. Gen., 337.) 
 
 Precedence of officers appointed to act 
 in any grade. — See Article R-1048, Navy Reg- 
 ulations, 1913, noted under section 1410, Re- 
 vised Statutes. 
 
 Appointments by President without 
 confirmation of Senate. — AMiere the statute 
 provides for the appointment of an officer by 
 the President, without requiring the consent 
 of the Senate, such consent is unnecessary, 
 and the President may make such appoint- 
 ment without submitting the same to the 
 Senate for confirmation. In the latter case 
 the commission may be signed by the Secre- 
 tary of the Navy as the act of the President. 
 (22 Op. Atty. Gen., 82; see also note to sec. 
 1369, R. S. As to letter signed by Secretary 
 of War, by direction of the President, consti- 
 tuting a commission, see O'Shea v. U. S., 
 28 Ct. Cls., 392, noted imder Constitution, 
 Art. II, sec. 2, clause 3.) 
 
 Form of assignment to duty as flag of- 
 ficer under tills section. — On September 30, 
 1889, a letter was addressed by the Secretary of 
 the Navy to "Acting Rear Admiral" John G. 
 Walker, U. S. N., as follows: 
 
 ' 'You are hereby appointed an acting rear 
 admiral in the Navy of the United States, such 
 appointment to hold good while in command of 
 the Squadron of Evolution. 
 
 ' 'You are authorized to hoist the flag and 
 wear the imiform of a rear admii'al, and to affix 
 the title of rear admiral to your official signa- 
 ture." 
 
 The following letter was addressed by the 
 Secretary of the Navy to ' 'Rear Admii-al" Wil- 
 liam T. Sampson April 21, 1898 (File 98039, 
 Bu. Nav.): 
 
 "Under the authority of section 1434 of the 
 Revised Statutes of the United States you are 
 assigned to cormnand the United States Naval 
 Force on the North Atlantic Station, -vnth the 
 rank of rear admiral. 
 
 "You will hoist the flag of a rear admiral, 
 will wear the uniform, and will affix that title 
 to your official signature." 
 
 On May 28, 1908, Oapt. Seaton Schroeder was 
 given an assignment by the Secretary of the 
 Navy, as follows: "By direction of the Presi- 
 dent, you are, under authority of section 1434 
 of the Revised Statutes, hereby assigned to the 
 command of the Fourth Division of the Second 
 Squadron of the United States Atlantic Fleet 
 with the rank and title of rear admiral. You 
 will hoist the flag of a rear admiral, wear the uni- 
 forms of that grade, and afiix that title to your 
 official signature." (Seel7Comp.Dec., 54.) 
 
 Officer does not become a rear admiral 
 by operation of tliis section. — The assign- 
 ment of a captain of the Navy to duty as rear 
 admiral by authority of section 1434, Revised 
 Statutes, does not make such officer a rear 
 admiral within- the meaning of the law (act 
 May 13, 1908, 35 Stat., 128) providing pay for 
 an aid to a rear admiral. (17 Comp. Dec, 54.) 
 
 The chief purpose of the law, shown by its 
 terms, was to give to the officer so assigned 
 command over, and to require obedience from, 
 officers of a higher rank or rate who might be 
 serving in the squadron. It is noticed that 
 Captain Schroeder was, by the letter above- 
 quoted, assigned to the command of a division 
 of a squadron, and not of a squadron, as pro- 
 vided m section 1434, with the rank and title 
 of "rear-admiral," while section 1434 pro\ddes 
 for the assignment of certain officers to com- 
 mand squadrons with the rank and title of 
 "flag-officer." This assignment did not make 
 Captain Schroeder a rear admiral within the 
 meaning of the law allowing additional pay to 
 officers serving as aids to rear admirals. (17 
 Comp. Dec, 54.) 
 
 There is no law which authorizes the pay- 
 ment to an officer of the pay of rear admiral 
 while he was accorded that rank and exercised 
 the duties of that grade by dnection of the Sec- 
 retary of the Navy, his commission being only 
 that of captain or of commodore. (Comp. Dec, 
 Dec. 16, 1899, Appeal No. 3215, case of Rear 
 Admiral William T. Sampson. But see act of 
 Aug. 29, 1916, 39 Stat., 581, providing that the 
 pay of officers of the Navy shall be based on 
 their rank and length of service.) 
 
 Sec. 1435. [First lieutenants, navigation, and watch officers.] Lieutenant 
 commanders may be assigned to duty as first lieutenants of naval stations, as 
 navigation and watch officers on board of vessels of war, and as first lieutenants 
 of vessels not commanded by lieutenant-commanders. — (16 July, 1862, c. 183, 
 s. 3, V. 12, p. 584. 25 July, 1866, c. 231, s. 5, v. 14, p. 223.) 
 
 Aid or executive of commanding officer of a 
 vessel of war or naval station, may be de- 
 tailed by the Secretary of the Navy. (Sec. 
 1469, R. S.) 
 
 Ensigns may be assigned to duty as watch 
 officers. (See sec 1490, R. S.) 
 
 Lieutenant commanders eligible for appoint- 
 ment as Chief of Bureau of Engineering 
 (sec. 424, R. S., as amended by acts June 
 7, 1900, 31 Stat., 702, and June 4, 1920, 41 
 Stat., 828); and to assist the Chief of Naval 
 Operations (act Aug. 29, 1916, 39 Stat., 
 558). 
 
 President shall formulate appropriate rules gov- 
 erning assignments to command of vessels 
 and squadrons. (Act Mar. 3, 1901, 31 
 Stat., 1133,_ superseding sec 1529, R. S., 
 which provided, inter alia, that vessels of 
 the foiu-th rate shall, as nearly as practica- 
 ble, be commanded by lieutenant com- 
 manders.) 
 
 Shore duty, officers not to be employed on, 
 except in cases especially provided by law, 
 unless the Secretary of the Navy shall de- 
 termine that employment on such duty is 
 required by the public interests and shall so 
 
 677 
 
Sec. 1437. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Btate in the order of employment. (Act 
 
 Mar. 3, 1883, see. 2, 22 Stat.. 481, amended 
 
 by act July 19, 1892, 27 Stat., 245.) 
 Vessels in actual service shall be officered and 
 
 manned as the President may direct. 
 
 (Sec. 153.5, R. S.) 
 First lieutenants. — "On board battleships 
 and armored cruisers, an officer of the rank of 
 lieutenant commander or lieutenant shall bo 
 assij^ned to duty as first lieutenant, ti practi- 
 cable, the first lieutenant shall be the line 
 officer on board next in rank to the executive 
 officer, but when this is impracticable he may 
 be either senior or junior to the navigating 
 officer, gimnery officer, and engineer officer, 
 one or all, as the exigencies of the service may 
 demand; but he shall be senior to all the watch 
 and di^'ision officers. Commanding officers of 
 battleships and armored cruisers may detail an 
 
 Sec. 1436. [Sea service; staff officers who have been chiefs of bureaus.] 
 Any staff officer of the Navy who has performed the duty of a chief of a bureau 
 of the Navy Department for a full term shall thereafter be exempt from sea 
 duty, except in time of war. — (3 Mar,, 1871, c. 117, s. 10, v. 16, p. 537.) 
 
 officer to act as first lieutenant when no regular 
 first lieutenant has been ordered to the ship." 
 (Art. R-2301. Navy Regs.. 1913.) 
 
 "The navigating officer is the officer de- 
 tailed by the department to perform the navi- 
 gation duties and is the h.^ad of the navigation 
 department of the ship. The navigating 
 officer shall be senior to all watch and division 
 officers." (Art. R-2401. Na\-y Regs., 1913.) 
 
 It is the President's right, as com- 
 mander in chief, to decide according to his 
 own jiidgment what officer shall perform any 
 particular duty. Congress could not, if it 
 would, take away n*om the President or in any- 
 wise diminish the authority conferred upon 
 him by the Constitution. (9 Op. Atty. Gen., 
 462, noted imder Constitution, Art. II, sec. 2, 
 clause 1.) 
 
 mine that employment in such duty is re- 
 quired by the public interests, and shall so 
 state in the order of emplojTnent. (Act 
 Mar. 3, 1883, sec. 2, 22 Stat., 481, amended 
 by act July 19, 1892, 27 Stat., 245.) 
 
 As to appointment, etc., of chiefs of bureaus, 
 
 see sections 421^26, Revised Statutes, and 
 
 notes thereto. 
 Shore duty, officers not to be employed on, 
 
 except in cases especially provided by law, 
 
 unless the Secretary of the Navy shall deter- 
 
 Sec. 1437. [Detail of officers for service of War Department.] The Pres- 
 ident may detail, temporarily, thi'ee competent naval officers for the service 
 of the War Department in the inspection of transport vessels, and for such 
 other services as may be designated by the Secretary of War. — (12 Feb., 1862, 
 C.21, V. 12, p. 338.) 
 
 Detail of officers for service with the Coast and 
 Geodetic Survey, under the Department of 
 Commerce, is authorized by sections 4684 
 and 4687, Revised Statutes, and amend- 
 ments thereto. 
 
 Detail of officers to educational institutions is 
 authorized by section 1225, Revised Stat- 
 utes, as amended, and other laws noted 
 thereunder. 
 
 Detail of officers and enlisted men, Navy and 
 Marine Corps, to assist Republic of Haiti. 
 (Act June 12, 1916, 39 Stat., 223.) 
 
 Detail of two officers, Na\'i', to assist Republic 
 of Brazil. (Res. Oct*. 13, 1914, 38 Stat., 
 780.) 
 
 Detail of officers to assist South American Re- 
 publics. (Act June 5, 1920, 41 Stat., 1056.) 
 
 Detail of officers and enlisted men of the Navy 
 and Marine Corps, to assist the Dominican 
 Republic. (Act Feb. 11, 1918, 40 Stat., 
 437.) 
 
 Detail of medical officers. Navy, for duty with 
 American National Red Cross (act Aug. 
 29, 1916, 39 Stat., 581); and for duty in 
 connection with Bureau of War Risk Insur- 
 ance (act Oct. 6, 1917, 40 Stat., 398). 
 
 Detail of officers to act in lieu of ci\alian light- 
 house inspectors, under the Bureau of Light- 
 houses, Department of Commerce, was au- 
 thorized for a period not exceeding three 
 years by act of June 17, 1910, section 11 (36 
 
 Stat., 539), wliich act also repealed sections 
 4653 and 4671, Revised Statutes, providing 
 for the detail of officers as members of the 
 Lighthouse Board and as lighthouse in- 
 spectors. 
 
 Detail of officers to ocean mail vessels is author- 
 ized by act of March 3, 1891 (26 Stat., 832). 
 
 Detail of officers for such duties as the United 
 States &hipping Board may deem necessary 
 in connection with its business is authorized 
 by act of September 7, 1916, section 4 (39 
 Stat., 729). 
 
 Heads of departments are required to render all 
 practicable aid to the Bureau of Fisheries, 
 under the Department of Commerce. (Sec. 
 4397, R.S.) 
 
 President is authorized to utilize the service of 
 any department and any officer or agent of 
 the United States in the execution of the 
 selective-draft law. (Act May 18, 1917, 
 sec. 6, 40 Stat., 80.) 
 
 When the Na\y Department performs any 
 service for the War Department, the funds 
 of the War Department may be placed 
 subject to requisition of the Navy Depart- 
 ment for direct expenditure by the latter. 
 (Act Mar. 4, 1915, 38 Stat., 1084.) 
 Department of Justice. — The detail of 
 
 officers for special duty under the Department 
 
 of Justice, is authorized in practice. (See, for 
 
 example, Navy Register, Jan. 1, 1917, p. 335.) 
 
 678 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1440. 
 
 Duty of Navy to cooperate with -Axmy. — 
 It is the duty of the Navy to cooperate with 
 the Army, both being branches of the military 
 service of the United States, and this duty of 
 cooperation authorizes the detail of a naval 
 constructor for duty under the War Depart- 
 ment, without additional compensation. (See 
 Stocker v. U. S., 39 Ct. Cls., 300, noted under 
 sec. 1404, R. S.; see also 7 Comp. Dec, 
 289.) 
 
 Appropriation chargeable with expenses 
 of ofla.cer detailed. — It is the general rule that 
 where an officer or employee of one executive 
 department performs ser\dces for another de- 
 partment imder proper orders, only such ex- 
 penses as are extra and incurred solely l)y reason 
 of such duty are to be borne by the department 
 for which the duty is performed. However, 
 where the officer or employee performing such 
 duty is employed imder a lump-sum appropria- 
 tion and his place in his own departmeutisfilled 
 by an additional i^erson during the period of 
 such duty, all expenses incident to the detached 
 duty, including the salary of such officer or em- 
 ployee and his subsistence where regularly f lu-- 
 nished under his contract of employment, are to 
 be borne by the department for which the duty 
 is performed. (22 Comp. Dec, 145.) 
 
 Where a hghthouse tender, with officers and 
 crew, is used in mine-planting practice by the 
 War Department, only extra expenses incident 
 to such use, such as the cost of additional fuel 
 and oil, are to be charged to the War Depart- 
 ment, the pay of the officers and crew and their 
 subsistence, or commutation therefor, being 
 chargeable to the Department of Commerce, 
 under which they are regularly employed. (22 
 Comp. Dec, 145.) 
 
 W^le the decisions have referred to transac- 
 tions of the above character as details of em- 
 ployees, they should be viewed as the perform- 
 ance of ser\dce by one department, through its 
 existing permanent organization, for another 
 department. The custom is that such ser\dce, 
 when small, shall be given as a matter of cour- 
 tesy, and when of some substantial value, reim- 
 biu*8ement of full cost shall be made, in order 
 that the department securing the service shall 
 
 not secure more work than its appropriation 
 authorizes. (22 Comp. Dec, 145.) 
 
 Where a vessel of the Naval Auxiliary Serv- 
 ice, with officers and crew, is withdrawn from 
 its regidar duty under the Navy Department 
 and is used for a certain period in transporting 
 supplies for the Department of Commerce, the 
 appropriation for that department available 
 generally for the transportation of such suppUes 
 is chargeable with the total expenses incurred by 
 the Navy Department in the maintenance and 
 operation of the vessel during such period, in- 
 cluding the pay and subsistence of the officers 
 and crew. (23 Comp. Dec, 119, distinguishing 
 22 Comp. Dec, 145.) 
 
 There was no detail whatever in the case 
 noted in the preceding paragraph. 1 1 was more 
 in the natm-e of an agreement to perform a serv- 
 ice. The officers and crew in the Naval Aux- 
 iUary Service are in the status of ci\dhan crews. 
 If the officers are not required for service on 
 vessels, they are fiu-loughed, and the crew being 
 shipped in the same manner as for service on 
 merchant vessels, are not shipped imless 
 needed to man a vessel. They have no perma- 
 nent teniu-e of office, and if a vessel of the Naval 
 Auxihary Ser\'ice was withdrawn from active 
 ser\dce for a period of 37 days, there would be 
 no expense for pay and sul)sistence of officers 
 and crew. This vessel was withdra\vn from her 
 regular duties to perform a service for and at 
 the request of another department of the Gov- 
 ernment, and if the Department of Commerce 
 had not seciu-ed the ser\ice of this vessel, it 
 would have been necessary to secure a mer- 
 chant vessel. This was a ser\ice of substantial 
 value, for which reimbursement of full cost 
 should be made in order that the Department 
 of Commerce shall not secure more work than 
 its appropriation authorizes. (23 Comp. Dec, 
 119.) 
 
 As to right of medical officer of the Navy to 
 compensation from appropriations under con- 
 trol of the Department of Justice for professional 
 8er\ices rendered l)y him to United States pris- 
 oners in a United States jail, see note to section 
 1368, Revised Statutes, under " Medical at- 
 tendance to persons not in the Navy." 
 
 Sec. 1438. [Officers to act as storekeepers on foreign stations.] The Sec- 
 retary of the Navy shall order a suitable commissioned or warrant officer of 
 the Navy, except in the case provided in section fourteen hundred and fourteen 
 to take charge of the naval stores for foreign squadrons at each of the foreign 
 stations where such stores may be deposited, and w^here a store-keeper may be 
 necessary. — (17 June, 1844, c. 107, s. 1, v. 5, p. 700; 3 Mar., 1847, c. 48, s. 3, 
 V. 9, p. 172.) 
 
 See note to section 1414, Revised Statutes. 
 
 Sec. 1439. [Bonds of officers acting as storekeepers.] Every officer so acting 
 as store-keeper on a foreign station shall be required to give a bond, in such 
 amount as may be fixed by the Secretary of the Navy, for the faithful perform- 
 ance of his duty. — (17 June, 1844, c. 107, s. 1, v. 5, pp. 700, 701.) 
 
 On general subject of bonds, see note to section 1383, Revised Statutes. 
 
 Sec. 1440. [Appointments in diplomatic or consular service.] If any officer 
 of the Navy accepts or holds an appointment in the diplomatic or consular 
 
 579 
 
Pec. 1440. 
 
 Pt.S. REVISED STATUTES. 
 
 The Navy. 
 
 service of the Government, he shall be considered as having resigned his place 
 in the Navy, and it shall be filled as a vacancy. — (30 Mar., 1868, c. 38, s. 2, v. 15, 
 
 p. oS.) 
 
 Army officers are prohibited from holding offices 
 in diplomatic or consular service by section 
 1223, Revised Statutes. 
 By actof March3, 1875, section 2 (18 Stat., 512), 
 it was proxadod that certain retired officers 
 of the Army should l>e continued on the re- 
 tired list, not\A'ithstandiiig the provisions of 
 section 2 of act of March 30, 1868, upon 
 which sections 1223 and 1440, Revised 
 Statutes, are based; and by act of March 3, 
 1891 (26 Stat., 872), the accounting officers 
 of the Treasury were directed to allow pay to 
 certain retired officers of the Army included 
 in act of March 3, 1875, "notwithstanding 
 such officer accepted and held a diplomatic 
 or consular office." 
 Consular powers may be exercised by Navy 
 officers in certain cases. (See sec. 1433, 
 R. S.) 
 Legality of accepting oflB.ce in diplo- 
 matic or consular service must be deter- 
 mined by oflELcer upon his own responsi- 
 bility. — '"It may be, and doubtless is, a subject 
 of reasonable interest, and perhaps of great 
 anxiety, to officers of the United States Army on 
 the retired List to ascertain [in view of the act of 
 July 31, 1894, section2, 28 Stat., 205] 'if an officer 
 on the retired list of the Army can accept a 
 diplomatic or consular appointment and still 
 hold his position on the retired list with rank 
 and pay.' But, manifestly, the solution of that 
 question by any retired officer of the Army, and 
 the course of conduct which he may adopt in 
 pursuance of such solution, is a matter of his 
 private concern only and not a subject wdth 
 which the United States can be concerned until 
 some action has been taken by such officer. 
 * * * If Lieut. Clay, or any other retired 
 officer, should l;e called upon to determine such 
 question in his own case, the obvious course for 
 him to piu-sue is that which is open to every 
 person inclined to pursue a coiu"se as to the legal 
 consequences of which he is in ignorance or 
 doubt. He should seek the ad\'ice of private 
 coimsel, learned in the law, and obtain their 
 opinion, for which, if given without due care, 
 such counsel can be held to personal account- 
 ability. The whole matter, as it seems to me, 
 is one strictly of private concern and in no 
 sense of pubUc interest." (21 Op. Atty. Gen., 
 510; file 9736-15, Mar. 28, 1910; file 9736-18, 
 June 25, 1910. See also 21 Op. Atty. Gen., 
 506; compare 18 Op. Atty. Gen.; 11; 29 Op. 
 Atty. Gen., 397; 29 Op. Atty. Gen., 503. For 
 other cases, see note to sec. 356, R. S., imder 
 "III. Must Arise in Administration of Depart- 
 ment.") 
 
 Retired oflicers included in prohibition 
 of this section. — Section 1223, Revised 
 Statutes [which is similar to section 1440] 
 applies to all officers of the Army, whether 
 upon the active or retired Hst, and must be 
 deemed to enact that any officer upon either 
 list, accepting an appointment in the diplo- 
 matic or consular service, is to be treated as 
 having resigned his place in the Army. To 
 section 1223 there is an exception made by 
 
 the act of March 3, 1875, which provides that 
 a certain class of officers therein described, who 
 are "borne upon the retired list, shall be con- 
 tinued thereon notwithstanding the provisions 
 of section two, chapter thirty-eight, act of 
 March thirtieth, eighteen hundred and sixty- 
 eight," which is embodied in section 1223, 
 Revised Statutes. Of course, the officers 
 therein described, even if accepting an ap- 
 pointment in the consular or diplomatic serv- 
 ice, would not vacate their commissions. (15 
 Op. Atty. Gen., 306.) 
 
 The act of March 30, 1878, appUed to officers 
 on the retired as well as on the active list, and it 
 made the acceptance of the diplomatic vacate 
 the military office, eo instanti, the vacancy thus 
 created necessarily continuing imtil filled in 
 the usual way. (19 Op. Atty. Gen., 610.) 
 
 A retired officer is not precluded from holding 
 a ci\'il office under the United States Govern- 
 ment except as prohioited bv statute. (15 Op. 
 Atty. Gen., 306.) 
 
 Captain Badeau's Case. — In 1870, Captain 
 Adam Badeau, U. S. Army, retired, was ap- 
 pointed to and accepted the office of consul gen- 
 eral at London. After his appointment, his 
 name continued to be borne on the Army Regis- 
 ter as a retired officer, but he was not paid as 
 such. He was not of the class of retired officers 
 described in the first proviso of section 2 of 
 the act of March 3, 1875, chapter 178: Held, upon 
 consideration of the provisions of sections 1094 
 and 1223, Re\ised Statutes [the former pro- 
 viding that the Army shall consist, inter alia, 
 of ■' the officers of the Army on the retired list"], 
 the latter embodying so much of section 2, act 
 of March 30, 1868, chai)ter 38, as related to 
 officers of the Army, advised, that Badeau haa 
 ceased to be a retired officer of the Array by 
 effect of the statutory pro^dsion embodied in 
 section 1223, and that his name can not legally 
 be continued on the retired list. (15 Op. 
 Atty. Gen., 407; see also 2 Comp. Dec, 7, 
 citing decision of Second Comptroller Upton, 
 June 18, 1883, and decision of Second Comp- 
 troller Gilkeson, Apr. 15, 1890; and see 1? 
 Comp. Dec, 441.) 
 
 The cases of General Sickles and Captain 
 Badeau are alike in all material respects. It 
 appears that each of these officers, after being 
 placed on the retired list, accepted in 1869 
 an appointment in the diplomatic service. 
 General Sickles remained in that service until 
 April, 1874. Captain Badeau remained therein 
 only a few months, but subsequently, in 1870, 
 entered the consular service, wherein he held 
 an appointment for several years. In the 
 meantime, they were each actually borne on 
 the retired list and have since been continued 
 thereon. Their right now [December 31, 1888] 
 to be borne on the retired list depends upon the 
 operation and effect of the provisions of the 
 acts of 1868 and 1875^ upon their respective 
 cases, and necessarily involves a construction 
 of those provisions. There being a suit pend- 
 ing in the Supreme Court (Badeau v. V. S.) 
 which presents the same question precisely 
 
 580 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1440. 
 
 that arises in those cases, involving a con- 
 struction of the same statutory pro^^sions, and 
 which will doubtless be determined during 
 the present term of the court, the Attorney 
 General thinks it inadvisable to express any 
 opinion upon the two cases referred to, and 
 suggests that it would be proper to await the 
 decision of the court in that suit, which will 
 finallv settle the question arising in them. 
 (19 Op. Atty. Gen., 202.) 
 
 Captain Badeau's name was borne on the 
 retired list until May 7, 1878, when he was 
 "dropped ' in conformity with an opinion of the 
 Attorney General under section 1223, Revised 
 Statutes, to date from May 19, 1869, date he ac- 
 cepted office in the diplomatic ser\-ice. His 
 name was restored to the retired list, July 3, 
 1878, by the Secretary of War, on the assnmp- 
 tion that his case was within the first proviso to 
 section 2, act of March 3, 1875, relating to retired 
 officers then borne on the list. The Second 
 Comptroller thereafter held that Captain 
 Badeau's connection ^vith the Army entirely 
 ceased May 19, 1869. From this \-iew the 
 Acting Judge Advocate General of the Army 
 dissents: Held, (1) That when Captain Badeau 
 accepted the appointment and assumed the 
 duties of an office in the diplomatic ser^^ce he 
 therebv, by force and effect of section 2 of the 
 act of "March 30, 1868, chapter 38, ceased to 
 be an officer of the Army, and his place as 
 such became vacant. The fact that his name 
 remained on the rolls has no significance; it is 
 simply evidence of a mistake of law in making 
 those rolls. (2) That neither the act of March 
 3, 1875, nor the action of the Secretary of 
 War above referred to operated to reinstate 
 him as such an officer; the act of 1875, when 
 speaking of names on the retired list, meant 
 names there legally, not by mistake either of 
 law or fact. That act should be construed to 
 have a prospective effect only. And (3) 
 That his name is not lawfully borne on the 
 retired list of the Army. (19 Op. Attv. Gen., 
 610.) 
 
 The act of 1868, section 2 (sees. 1223 and 1440, 
 R. S.), says the acceptance of the diplomatic 
 or consular office shall operate as a resignation 
 and the military office thereby be made vacant. 
 Vacant when? Manifestly, immediately upon 
 the acceptance of the other office. By the 
 statutes, the holding of the two places in the 
 same person is made inconsistent and impos- 
 sible. The election to take one is ipso facto 
 the relinquishment of the other. It is a 
 complete resignation. The military officer 
 goes into chnl life; the military office is vacant, 
 and may be filled by another appointment at 
 once, it is a statutory resignation, yet it has 
 all the essentials of an ordinary resignation. 
 The officer by accepting the civil office tenders 
 his resignation; the President, by appointing 
 him to a civil office, consents to and accepts 
 his resignation of the military office. This 
 being so, the officer is as completely out of the 
 Army as if he had resigned in the ordinary 
 wav, been dismissed from the sersdce, or died. 
 (19 Op. Atty. Gen., 610.) 
 
 The act of 1875 could not put a man who had 
 resigned and been six years a civilian Ijack into 
 the Army. It will not do to say that l)y con- 
 senting to the act of 1875, the President and 
 
 Senate have consented to the appointment of 
 Lieutenant Badeau as one of a class. First, it 
 is a non sequitur, and the President has con- 
 sented to a statute. Acts of Congress may and 
 often do become operative as laws \vithout his 
 consent and over his veto. Again, the Presi- 
 dent and Senate can not make appointments by 
 classes and general legislation. The Consti- 
 tution contemplates that an appointment shall 
 be made upon the separate consideration, first 
 by the President and afterwards by the Senate, 
 of each individual case by name and upon its 
 own merits; and this constitutional require- 
 ment is in no way met by a law which would 
 induct men into office by classes. To hold 
 otherwise would enable a two-thirds majority 
 of each House of Congress, acting together, to 
 legislate any number of men, by name or by 
 a class, into office without the consent of the 
 President at all. Of course such legislation 
 would be absolutely void. (19 Op. Atty. Gen., 
 610.) 
 
 If the act of 1875 were such as to restore to 
 office in the Army any officer who had vacated 
 such office, it would be clearlv unconstitutional 
 and invalid ; but such is not its necessary read- 
 ing. \Mien giving legislation a retroacti^'e 
 effect, it is invalid, but gi\'ing it a prospectiA^e 
 effect, it is valid, all rules of construction 
 require that it shall be given a prospective 
 effect only; and such is tlie rule which is and 
 should be applied to the act of 1875. (19 Op. 
 Atty. Gen., 610.) 
 
 The question seems to have been mooted for 
 many years, and an attempt has been made to 
 have it adjudicated in the courts, but no such 
 adjudication has been reached. In Badeau v. 
 U. S. (130 U. S., 439), the court expressly 
 declines to decide the question, as not being 
 necessarily involved in the case, using the fol- 
 loAving language: "TMiether by order of the 
 Secretary'- of War, July 3, 1878, the claimant's 
 name was properly restored to the retired list, 
 we are not called upon to determine in this case, 
 because even were that so, we do not think that 
 his petition can be sustained. " The court did, 
 however, in that case decide that the act of 
 1868, now embodied in section 1223 [and 1440] 
 applies to officers upon the retired as well as 
 upon the active list, saying, "no officer, 
 whether on the active or retired list, could 
 accept appointment in the latter" (diplomatic 
 or consular service) "and remain an officer." 
 This is practically a declaration by the highest 
 court in the land that prior to 1875 an officer 
 upon the retired list of the Army who accepted 
 an appointment in the diplomatic or consular 
 service thereby vacated his militaiy office; 
 and, consistently with the language of the stat- 
 ute, it does not appear how any other position 
 is tenable. (19 Op. Attv. Gen., 610.) 
 
 The act of March 3," 1891 (26 Stat., 872), 
 directing the accounting officers of the Treasury 
 not to suspend or withhold the pay of certain 
 retired officers therein described, whose names 
 were borne upon the retired list prior to the 
 passage of and retained thereon in obedience 
 to the act of March 3, 1875, applies only to offi- 
 cers of the Army whose names were lawfully on 
 the retired list, and not to those who prior to the 
 passage of the last-mentioned act had severed 
 themselves from the Army by force of section 2, 
 
 681 
 
Sec. 1441. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 chapter 38. of the act of March 30, 18G8, in is of no consequence, inasmuch as the same was 
 
 accepting or holding a diplomatic or consular placed there illegally, and without warrant of 
 
 position. Held, that since May 18, 1869', Adam law, and that, therefore, he is entitled to none 
 
 Hadeau has not been an ollicer of the United of the benefits claimed by him under the act of 
 
 States Army, upon either the active or the re- March 3, 1891 [noted above]. (2 Comp. 
 
 tired list; that the fact that his name was car- Dec, 7.) 
 ried on the rolls as an officer on the retired list 
 
 Sec. 1441. [Officers dismissed, or resigning to escape dismissal.] No 
 officer of tlie Navy who has been dismissed by the sentence of a court-martial, 
 or suffered to resign in order to escape such dismissal, shall ever again become 
 an officer of the Navy.— (16 July, 1862, c. 183, s. 11, v. 12, p. 585.) 
 
 Acceptance of resignation miist be communi- 
 cated to officer before he may c^uit his post 
 or proper duties without leave. (Sec. 1624, 
 R. S., art. 10.) 
 Midshipmen dismissed by sentence of court- 
 martial for hazing shall be forever ineligi- 
 ble for reappointment to Naval Academy. 
 (Act June 23, 1874, 18 Stat., 203.) 
 Midshipmen summarily expelled from Naval 
 Academy for hazing shall not be reap- 
 pointed to the Corps of Cadets or be eligible 
 for appointment as a commissioned officer 
 in the Army, Navy, or Marine Corps, until 
 two years after graduation of the class to 
 which they belonged. (Act Mar. 3, 1903, 
 32 Stat., li98.) 
 Officers dropped from the rolls of the Navy or 
 Marine ( 'orps on account of absence \vithout 
 leave or imprisonment under sentence of 
 civil courts, shall not be eligible for reap- 
 pointment. (Act Apr. 2, ]918, 40 Stat., 501; 
 see note to sec. 1229, R. S.) 
 Officers and midshipmen who shall have left, 
 the Navy under honorable conditions and 
 who shall have enrolled in the Naval Re- 
 serve Force, may be appointed to the grade 
 and rank last held by them without exam- 
 ination other than physical. (Act Aug. 29, 
 1916, 39 Stat., 588.) 
 Officers, including midshipmen, who have left 
 the naval service under honorable condi- 
 tions, and who shall have enrolled in the 
 Naval Reserve Force, shall be eligible for 
 membership in the Fleet Naval Reserve. 
 (Act Aug. 29, 1916, 39 Stat, 589.) 
 Reappointment of any commissioned or warrant 
 officer who shall have been honorably dis- 
 charged from the service, was authorized 
 by act of February 16, 1914, section 21 
 (38 Stat., 290.) 
 See section 1624, Revised Statutes, article 37, 
 and act of June 22, 1874, section 2 (18 Stat., 
 192), as to officers dismissed and afterwards 
 demanding trial by court-martial. 
 The spirit of the laws is against the re- 
 appointment of any person who has been dis- 
 missed from the Navy, as will be seen from sec- 
 tion 1441, Re\dsed Statutes. (File 5252-43, 
 Oct. 5, 1911.) 
 
 Midshipmen dismissed from the Navy. — 
 There is no provision of law expressly proliibit- 
 ing the reappointment of a midsliipman who 
 has been dismissed from the Navy, except in 
 the single case of hazing. However, where a 
 midshipman was dismissed for "intoxication 
 and inaptitude," and thereafter nominated for 
 appointment to the Naval Academy, held, that 
 
 if the candidate's moral qualifications are not 
 satisfactory and such as are required for the 
 admission of candidates generally, he may be 
 legally rejected; and whether or not he is so 
 qualified is a cjuestion of fact. (File 5252-43, 
 Oct. 5, 1911.) 
 
 Effect of pardoning. — "Whether an officer 
 dismissed by sentence of a court-martial who has 
 been pardoned by the President, may again 
 become an officer of the Navy, notwithstanding 
 this proxdsion is a question not without diffi- 
 culty. It is not the point specifically referred 
 to in Mr. Myer's letter, and, therefore, I refrain 
 from discussing it. But I do not hesitate to say 
 that I think it can be shown that Congress did 
 not intend by tliis clause to preclude the Presi- 
 dent from reappointing officers of the Navy dis- 
 missed by sentence of a court-martial to whom 
 he has extended a pardon." (11 Op. Atty. Gen., 
 19, 23. Compare, cases noted under Constitu- 
 tion, Art. II, sec. 2, clause 1, under " III. Power 
 to Pardon Offenses against United States" ; and 
 see Laws v. U. S., 27 Ct. Cls., 69.) 
 
 If Congress thinks proper to accept the fact of 
 dismissal ox enforced resignation of a naval officer 
 as evidence of unfitness, or lack of qualification, 
 it may do so without having its action in that 
 regard overridden by the pardoning power of 
 the President. An unconditional pardon abates 
 whatever punishment flows from the commis- 
 sion of the pardoned offense, but can not eradi- 
 cate the factum which is made a criterion of 
 fitness. The whole context of the original act 
 from which section 1441 is taken discloses its 
 nonpenal character. Accordingly, /i^-Zc?, "that 
 section 1441 of the Revised Statutes is properly 
 to be regarded as a rule relating to qualification 
 for office in the Navy, that it does not impose a 
 penalty as such on individual offenders, and 
 that the incidental disaljilities which they may 
 suffer by reasim of the statute are not removed 
 by a pardon." Further, held, that the acts of 
 February 16, 1914, and August 29, 1916 [above 
 cited] do not show any purpose on the part of 
 Congress to change the requirement of sectinn 
 1441; on the contrary, they confirm it, since 
 each of these later acts bv its terms applies only 
 to officers who have been honorably discharged 
 from the service, ' ' or who have ' ' left that service 
 under honorable conditions;" and that an officer 
 who has been dismissed from the Na^y by sen- 
 tence of court martial and subsequently par- 
 doned is not eligible for reappointment to the 
 Navy or to membership in the Fleet Naval Re- 
 serve. (31 Op. Atty. Gen., 225, citing Op. 
 J. A. G., Navv, Nov. 21, 1917, file 26282-326, 
 Carlesi v. N. Y., 233 U. S., 51, etc.^ 
 
 582 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1442. 
 
 Resignation under charges. — An Army 
 officer having been charged with drunkenness, 
 submitted an undated resignation to his com- 
 manding officer to be held and not forwarded to 
 the War Department if he should entirely ab- 
 stain from the use of intoxicants, but to be for- 
 warded to the department if he should become 
 
 intoxicated again. 
 
 On again becoming intoxi- 
 
 cated his commanding officer dated and for- 
 warded the resignation, which are duly accepted 
 by the President and the officer notified. Held, 
 that the office became vacant upon the officer's 
 receipt of such notification, and that the sub- 
 sequent action of the President in revoking his 
 acceptance did not restore the officer to the 
 service. (Mimmack v. U. S., 97 U. S., 426.) 
 
 Sec. 1442. [Furlough of Officers.] The Secretary of the Navy shall have 
 authority to place on furlough any officer on the active list of the Navy. — 
 (3 Mar., 1835, c. 27, s. 1, v. 4, pp. 756, 757. 3 Mar., 1845, c. 77, s. 6, v. 5, p. 
 794. 28 Feb., 1855, c. 127, s. 3, v. 10, p. 617. 1 June, 1860, c. 67, s. 4, v. 12, 
 p. 27.) 
 
 Furlough of civil employees, see note to sec- 
 tion 416, Revised Statutes, under "Suspen- 
 sion of employees. ' ' 
 Furlough without pay of enlisted men, subject 
 to recall in time of war or national emer- 
 gency. (Act Aug. 29, 1916, 39 Stat., 580.) 
 No pay to be allowed officers or enlisted men, 
 Navy or Marine Corps, absent from duty on 
 account of iniury, sickness or disease result- 
 ing from their own misconduct. (Act Aug. 
 29, 1916, 39 Stat., 580, as amended by act 
 July 1, 1918, 40 Stat., 717.) 
 Pay of officers on furlough, see section 1557, 
 
 Revised Statutes. 
 Retirement of officers on furlough pay, see 
 sections 1454, 1593, and 1594, Revised 
 Statutes. 
 Secretary of the Na\'y may assign officers to 
 duty on ocean mail vessels with furlough 
 pay, see act of March 3, 1891, section 7 (26 
 Stat., 832). 
 Section 1442 not repealed. — Section 1442, 
 Revised Statutes, gives the right to furlough 
 an officer of the Navy, and section 1557 fixes the 
 proportion of the pay that he shall have while 
 on furlough. These sections have not been 
 repealed. (15 Comp. Dec, 73.) 
 
 Status of officers on furlough. — ""UTien 
 officers are furloughed by the Department in 
 the administration of its general power, they 
 may be restored by the same power. Their 
 places have not been, and can not be. occupied 
 by others. With them, to be furloughed or not 
 to be, is only a question of duty and of pay. 
 not of rank or place on the roll of the Nav5\ " 
 (8 Op. Attv. Gen., 223, 236.) 
 
 Under the act of March 2, 1895 (28 Stat., 
 910), authorizing the President to place ''on 
 waiting orders out of the line of promotion, 
 with one-half active-duty pay," officers of the 
 Revenue-Cutter Service [now Coast Guard] 
 who are permanently incapacitated, and to 
 fill the resulting vacancies by promotion in 
 the order of seniority, held, that an officer 
 placed on "permanent waiting orders" is 
 withdrawn from the line of promotion but may 
 be restored to the service in his former rank 
 when his disabilitv ceases, without congres- 
 sional action. (21 Op. Atty. Gen., 286.) 
 
 Officer can not be furloughed without 
 statutory authority. — The pay of commis- 
 sioned officers of the Revenue-Cutter Service 
 [now Coast Guard], having been assimilated by 
 law to that of the Army, and there being no 
 power in the Secretaiy of War, ])y order, to 
 
 reduce the pay of commissioned officers of the 
 Army, held, that the order of the Secretary of 
 the Treasury placing a commissioned officer of 
 the Revenue-Cutter Service on leave of absence 
 with half pay, as a punishment for an offense, 
 was not authorized by law; and, accordingly, 
 that the portion of the order directing the 
 reduction of his pay to half pay, was inoperative. 
 "Neither the Secretary of War nor any officer 
 of the Government can force a leave of absence 
 upon an officer or soldier * * *. A leave of 
 absence is a favor extended." (Citing Hunt 
 v. U. S., 38 Ct. Cls., 709, 710.) Compulsory 
 absence by the order of a superior officer, 
 which is not for the convenience or in the 
 interest of the offi'cr who is relieved from duty, 
 and where there is no legal authority to direct 
 such compulsory aljsence, is not leave of 
 absence within the meaning of section 1265, 
 Revised Statutes, fixing the pay of Army 
 officers while alisent. The power to dismiss 
 officers of the Revenue-Cutter Service is not 
 in the Secretary of the Treasury. Neither can 
 he place them on leave of absence on half pay. 
 They are entitled to their entire salaries be- 
 cause of the commission they hold, except in 
 cases wherein the law, or regulations having 
 the force of law, makes other provision. (11 
 Comp. Dec, 570.) 
 
 Difference between "firrlough" and "re- 
 tirement." — Officers on furlough without be- 
 ing retired are not included in the expression ' ' re- 
 tired naval officers. " (12 Op. Atty. Gen. , 222.) 
 
 Secretary may furlough, officer convicted 
 by court-martial. — Where a medical officer is 
 found guilty of vulgar and indecent acts and 
 associations such as unfit him to treat persons 
 in the Na\y and memliers of their families, 
 should the court not sentence him to dismissal 
 the Navy Department feels it would have no 
 alternative but to place him on furlough as 
 authorized by section 1442, Revised Statutes, 
 although this would mean that, in accordance 
 with section 1557, Revised Statutes, he must 
 receive half pay, thus imposing expenditures 
 ui>on the Government from its appropriations 
 for the naval service without receiving any 
 return therefor. (File 26251-11181, Dec. 17, 
 1915; G. C. M. Rec. No. 31436; CM. O. 49-1915, 
 p. 27.) 
 
 Suspension from duty by court-martial 
 sentence. — As extended periods of severance 
 from active duty are calculated to impair the 
 efficiencv of an officer, and are detrimental to 
 the interests of the naval service, that part of a 
 
 583 
 
Sec. 1442. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 court-martial sentence of an officer which in- 
 volved suspension from duty on leave pay was 
 remitted. A sentence consisting of "three 
 months' leave of absence" with the full pay 
 correspondinfj: to that status, is not favorably 
 regarded, particularly as such action would 
 necessitate the detail of another officer to per- 
 form the duty of the one luider sentence, wliile 
 the latter remained idle. The granting of such 
 leave is a priAdlege which would not, except 
 under extraordinary circumstances, be accorded 
 by the Navy Department to any officer during a 
 tour of sea service. As to suspension from duty 
 
 with reduction in pay, this has also been held 
 an imd'3sirable form of punishment prejudicial 
 to the l)est interests of the service and contrary 
 to the policy of the Navy Department; the 
 officer is probably left without employment and 
 the Government loses his 8er\-ices. A sentence 
 "to be suspended from rank and duty * * * 
 to receive during said period one-half of shore 
 pay," is inappropriate, since it relegates to 
 idleness for two years an officer whose services 
 are needed, and throws his work on others. 
 (Naval Dig., 1916, p. 623.) 
 
 584 
 
CHAPTER THREE. 
 
 RETIRED OFFICERS OF THE NAVY. 
 
 See. 
 
 1443. Retirement after 40 years' service. 
 
 1444. Retirement after 62 years of age, or 45 
 
 years' service. 
 
 1445. Officers of certain ranks to be retired only 
 
 for disability. 
 
 1446. Officers who have received a vote of 
 
 thanks; retirement after 55 years' serv- 
 ice. 
 
 1447. Retirement of officers not recommended 
 
 for promotion. 
 
 1448. Retiring board. 
 
 1449. Powers and duties of retiring board. 
 
 1450. Oath of members, retiring board. 
 
 1451. Findings of retiring board, cause of in- 
 
 capacity. 
 
 1452. Record of proceedings; revision by Pres- 
 
 ident. 
 
 1453. Disaljility due to an incident of the 
 
 service. 
 
 1454. Officers wholly retired, or retired on fur- 
 
 lough pay. 
 
 Sec. 
 
 1455. Officers not to be retired without a hear- 
 
 ing. 
 
 1456. Officers not to be retired for misconduct. 
 
 1457. Grade and status of retired officers. 
 
 1458. Vacancies filled by promotion according 
 
 to seniority. 
 
 1459. Retii-ed officers withdrawn from com- 
 
 mand, and from line of promotion. 
 
 1460. Promotions to rear admiral on the retired 
 
 list. 
 
 1461. Promotion of retired officers with running 
 
 mates on active list. 
 
 1462. Active duty for retired officers. 
 
 1463 . Assignment of retired officers to command 
 
 in time of war. 
 
 1464. Commanding officers of squadrons to have 
 
 rank of "flag officer." 
 
 1465. Restoration of retired officers to active 
 
 list. 
 
 Sec. 1443. [Retirement after forty years' service.] When any officer of the 
 Navy has been forty years in the service of the United States he may be retired 
 from active service by the President upon his own appHcation. — (3 Aug., 1861, 
 c. 42, s. 21, V. 12, p. 290.) 
 
 Amendment to this section was made by act 
 of May 13, 1908 (35 Stat., 128), authorizing 
 retirement after 30 years' service upon ap- 
 plication of officers. See also section 1445, 
 below. 
 
 Acting assistant surgeons not entitled to retire- 
 ment. (See note to sec. 1411, R. S.) 
 
 Captains, commanders, and lieutenant com- 
 manders who become ineligible for pro- 
 motion on account of age shall be retired 
 at rate of pay graded according to length 
 of service. (Act Aug. 29, 1916, 39 Stat., 579.) 
 
 Dental Corps officers who were over 40 years of 
 age on original app^ointment shall not be eli- 
 gible for retirement before reaching the 
 age of 70 years, except for physical dis- 
 ability incurred in line of duty. (Act 
 Aug. 29, 1916, 39 Stat., 574, as amended 
 by act July 1, 1918, 40 Stat., 709.) 
 
 Dental surgeon at the Naval Academy not to be 
 retired before reaching age of 70 years, ex- 
 cept for phvsical disability incurred in line 
 of duty. (Act Mar. 4, 1913, 37 Stat., 891, 
 as amended by act July 1, 1918, 40 Stat., 
 709. 
 
 Enlisted men, retirement of. (See acts Mar. 3, 
 1899, sec. 17, 30 Stat., 1008; June 22, 1906, 
 34 Stat., 451; Mar. 2, 1907, 34 Stat.. 1217; 
 
 Mar. 3, 1915,38 Stat., 941; Aug. 29, 1916, 
 39 Stat., 591.) 
 
 Machinists to be retired under the provisions 
 of existing law for warrant officers. (Act 
 Mar. 3, 1899, sec. 15, 30 Stat., 1008.) 
 
 Marine officers, retirement of. (See sec. 1622, 
 R. S.) 
 
 Mates, retirement of. (See note to sec. 1408, 
 R. S.) 
 
 Midshipmen, retirement of. (See note to sec. 
 1445, R. S.) 
 
 Naval Reserve Force members shall not be 
 eligible for re:irement other thau for physi- 
 cal disability incurred in line of duty. 
 (Act July 1, 1918, 40 Stat., 710). Trans- 
 ferred members of the Fleet Naval Reserve 
 shall be eligible for retirement after 30 
 years' service (Act Aug. 29, 1916, 39 Stat., 
 591); service in the Navy, Marine Corps, 
 National Naval Volunteers and Naval Mi- 
 litia, shall be counted as continuous service 
 in the Naval Reserve Force for the purpose 
 of retirement (act July 1, 1918, 40 Stat., 
 710). Officers of the Naval Reserve Force 
 physically disabled in line of duty shall 
 be eligible for retirement under same 
 conditions as officers of the Regular Navy. 
 (Act June 4, 1920, sec. 2, 41 Stat., 834.) 
 
 585 
 
Sec. 1443. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Pay clerks and acting pay clerks shall have the 
 same pay, allowances, and other benefits 
 as now or hereafter allowed other warrant 
 oflieers and act ins; warrant oflicers. (Act 
 Mar. 3, 1915, 88 tStat., 942, 943.) 
 Pay of oflicers retired after 40 vears' service. 
 
 ' (See sec. 1588, R. S.) 
 Rank of oflicers on retirement. (See note to 
 
 sec. 1457, R. S.) 
 Retiring board not necessary for retirements 
 on account of length of service. (See sec. 
 1455, R. S.) 
 Service as officers or enlisted men in the Regular 
 or Volunteer Army or Navy, or both, shall 
 be credited to all oflicers of the Navy for all 
 purposes, the same as if all said service had 
 been continuous in the Regular Navy. (Act 
 Mar. 3, 1883, 22 Stat., 473.) 
 SerAdce as officers in different corps of the Navy 
 or in the Marine Corps shall be credited 
 to all officers for all purposes. (Act June 
 10, 1896, 29 Stat., 361.) 
 Service as a midshipman at the Naval Academy 
 or as a cadet at the Military Academy shall 
 not be counted in computing for any p\ir- 
 pose the length of service of any officer in 
 the Navy or Marine Corps hereafter ap- 
 pointed to either of said academies. (Act 
 Mar. 4, 1913, 37 Stat., 891.) 
 Sea service to be credited to volunteer officers 
 transferred to the Regular Navy in the same 
 manner as if they had been in the Regular 
 Navy during such serAdce. (Sec. 1412, 
 R. S.) 
 Service previously rendered by appointees as 
 chief pay clerks, pay clerks, or acting pay 
 clerks, together with their possible future 
 service prior to attaining age of 62, must 
 amount to at least 30 years. (Act Mar. 3, 
 1915, 38 Stat., 942,943.) 
 Temporary officers appointed for war with Ger- 
 many not entitled to retirement except for 
 physical disability incurred in line of duty. 
 (Act May 22, 1917, sec. 9, 40 Stat., 86; act 
 June 4, 1920, sec. 2, 41 Stat., 834.) 
 Warrant officers, retirement of. (Sc^e Brown v. 
 U. S., 113 U. S., 571, noted under sec. 1448, 
 R. S.; and see note to sec. 1405, R. S.) 
 "The Secretary of the Navy represents 
 the President, and exercises his power on 
 the subjects confided to his department." (U. 
 ^. V. Jones, 18 How. 92; see further, note to sec. 
 417, R. S.) 
 
 The retirement of officers of the Navy, wheth- 
 er oc urring under section 1443 or according to 
 the terms of the appropriation act of June 29, 
 1906 (34 Stat., 554), is made oiilj^ by the Presi- 
 dent, not by the Secretary of the Navy. From 
 both se'don 1443 and the act of P06, it appears 
 that, with the determination of tlio question of 
 retirement, tlie Secretary of the Navy has 
 nothing directly to do; it is for the President. 
 Where, therefore, an officer of the Navy was 
 retired, pursuant to the express direction and 
 approval of the President, as a captain of the 
 Navy, and at no time since such retirement has 
 the President conferred a higher rank upon 
 him, the Secretary of the Navy has neither 
 duty, authority, or power to place the name of 
 such officer upon the retired list with the rank 
 of rear-admiral. (Moser v. Meyer, 38 App. 
 D. C, 13.) 
 
 President has discretion to deny appli- 
 cation for retirement. — The act of May 13, 
 1908 [noted above as an amendment to this sec- 
 tion], does not declare that the officer may vol- 
 untarily retire after 30 years' service. Such an 
 idea is in fact negatived by placing his retire- 
 ment entirely within the discretion of the 
 President. The ofiicer is vested with the right 
 to make application for retirement, but there 
 his right ends and the discretion of the Pres- 
 ident begins. (28 Op. Atty. Gen., 417.) 
 
 When retirement becomes legally ef- 
 fective. — See note to section 1457, Revised 
 Statutes, tinder "When retirement or advance- 
 ment on retired list takes effect." See also 
 notes to sections 1444 and 1458, Revised Stat- 
 utes. 
 
 Civilian employees not entitled to 
 benefits of Navy retirement laws. — A clerk 
 appointed for duty in a navy pay office is not 
 an officer of tlie Navy entitled to retirement for 
 age or length of service; he was no more an 
 officer of the Navy than any one of the many 
 employees of the Navy Department at Wash- 
 ington. (Foreman v. Meyer, 227 U. S., 452; 
 38 App. D. C, 472.) 
 
 The Navy Department can not coimtenance 
 any proposed legislation seeking to engraft on 
 the military retired list of the Navy the cost of 
 a civil retired list made up in whole or in part 
 of the great number of civil service employees 
 of this department. (File 26255-295:12, Oct. 
 27, 1914.)_ 
 
 The privileges of retirement under the laws 
 relating to the Army are confined to officers of 
 the Army, and an applicant for retirement 
 must bring himself within that class before he 
 can claim the advantage of those privileges. 
 (29 Op. Atty. Gen., 249.) 
 
 The test to distinguish between a civil officer 
 whose duties lie in the War Department, and 
 an officer of the Army, is that laid down in 16 
 Op. Atty. Gen., 13 (and see U. S. v. Tyler, 105 
 U. S., 244, 245), viz, that officers of the Army 
 are those officers who are a part of ' ' the militarj^ 
 establishment," created by general acts of 
 Congress organizing the "Armj^ of the United 
 States," and defining what it shall "consist 
 of," and as such are subject to the rules and 
 Articles of War. These acts, in so far as officers 
 are concerned, provide for a graded, formal or- 
 ganization, the persons in which have rank, are 
 in line of promotion to a higher rank, wear uni- 
 forms as the badge of that rank, are subject to 
 military discipline and to orders issued to en- 
 force that discipline, and have acquired, to 
 speak generally, the status of soldiers in addi- 
 tion to their status as citizens or their status of 
 officers of the United States. (29 Op. Atty. 
 Gen., 249.) 
 
 In view of the ]7rohibition in the act of Feb- 
 ruary 24, 1899 (30 Stat., 846, 890), that "the 
 establi-shment of a civil pension roll, or an hon- 
 orable servdce roll, or the exemption of any of 
 the officers, clerks, and persons in the public 
 service from the existing laws respecting em- 
 ployment in such service is hereby prohibited," 
 care should be taken not to. extend the Army 
 retirement acts so as in effect to create not only 
 a "civil pension roll," but a limited and special 
 one. (29 Op. Atty. Gen., 249.) 
 
 586 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1443. 
 
 An expert accountant in the inspector gen- 
 eral's department of the Army is not entitled 
 to be placed on the retired list of the Army on 
 the ground that he has reached the age of 64 
 years. Although an officer of the United 
 States, it does not follow that he is also an officer 
 "of the Army." It is clear that an officer of 
 the United States may have functions and 
 duties relatmg solely to the Army and may be 
 paid entirely from appropriations for the Army, 
 and yet not be "of the Army." (29 Op. Atty. 
 Gen., 249, citing Brown's Case, 32 Ct. Cls. 379, 
 386, 387, 388; Huse'sCase, 43 Ct. Cls., 24; U. S. 
 r. Burns, 12 Wall., 252; U. S.r. La Tourrette, 
 151 U. S., 572, 576; 27 Op. Atty. Gen., 468, 471, 
 472, 475.) 
 
 The appropriation acts for the Army provide 
 specifically "for pay of the officers in the in- 
 spector general's department," while the pro- 
 vision for the expert accomitant is always under 
 the heading, "Miscellaneous." He has no 
 "actual rank," within section 1254, Revised 
 Statutes; he has no "command," and is not in 
 "the line of promotion," within section 1255; 
 he has no "uniform of the rank;" he has never 
 been "borne on the Army Register," and is 
 not, in the time of peace and never has been, 
 "subject to the rules and Articles of War," nor 
 to "trial by general court-martial," within 
 section 1256. There is no way of fixing his pay 
 on retirement, as he has no "rank," to be used 
 as a basis of computation within section 1274; 
 finally, he has never been treated by the War 
 Department in orders or regulations or in any 
 other way as an officer "of the Army." As 
 said in Brown's Case (32 Ct. Cls., 379), "the 
 status of such an officer, the department or place 
 to wliich he properly belongs, is something 
 which can be much better determined by the 
 legislative and executive branches of the Gov- 
 ernment, than by the judicial." (29 Op Atty. 
 Gen., 249.) 
 
 Persons held, to be oflB^cers within mean- 
 ing- of Navy retirement laws. — Paymasters' 
 clerks are "officers of the Navy," within the 
 meaning of the act of May 13, 1908 (35 Stat., 
 128), which provides for the retirement of offi- 
 cers of the Navy who have been in the service 
 30 years. (27 Op. Atty. Gen., 157, Jan. 22 
 1909; compare Ashton v. U. S., 51 Ct. Cls., 
 65, overruling Katzer v. U. S., 49 Ct. Cls., 294.) 
 
 A paymaster's clerk in the NaA^, who at the 
 the time of retirement was serving under an 
 appointment issued to him since the adoption 
 of paragraph 1751, Navy Regulations, 1900, 
 requiring the appointment of paymasters' 
 clerks to be made by the Secretary' of the Navy, 
 is an "ofiicer of the Navy," for the purjwse of 
 retirement within the meaning of the act of 
 May 13, 1908. (15 Comp. Dec, 628.) 
 
 Paymasters' clerks in the Army are officers 
 in the regular ser^ice within the meaning of the 
 acts of Congress respecting retirement for 
 length of ser\ice and physical inc-apacity. (27 
 Op. Atty. Gen., 493; see also 9 Comp. Dec, 
 90.) 
 
 The opinion holding that Army paymasters' 
 clerks were entitled to retirement (27 Op. 
 Atty. Gen., 493), went upon the assumption 
 that a paymaster's clerk has a status in the 
 Army in all essential respects similar to the 
 status of a paymaster's clerk of the Navy, and 
 
 as the latter officer had been considered by the 
 courts and by the Navy Department to be an 
 officer of the Navy and subject to the rules and 
 regulations of the Navy, it was assumed that 
 the same conditions prevailed as to the analo- 
 gous office of paymaster's clerk in the Army. 
 Whether that assumption was correct or not is 
 immaterial in view of the subsequent action 
 of Congress in specifically authorizing the re- 
 tirement of such clerks. But it will be noticed 
 that such authorization was upon the express 
 condition that "Army paymasters' clerks shall 
 be subject to the rules and Articles of War" 
 (36 Stat., 1044). (29 Op. Atty. Gen., 253.) 
 
 As to retirement of pay clerks in the Navv, 
 see act of March 3, 1915 (38 Stat., 942,) noted 
 above; and see note to section 1386, Revised 
 Statutes. 
 
 Civil engineers are officers in the Navy, and 
 may be retired under this section, which applies 
 to staff officers as well as to the line. (17 Op. 
 Atty. Gen., 126.) 
 
 As to retirement of warrant officers, mates, 
 etc., see references given above under this 
 section. 
 
 Status of oflicer iUegaUy retired. — Where 
 the Secretary of the Navy by order retired or 
 attempted to retire an officer of the Navy who 
 had not had 40 years' service, and no appoint- 
 ment had been made to the place vacated, the 
 officer must be regarded as still on the active 
 list of the Navy. (21 Op. Atty. Gen., 103; see 
 also 17 Op. Atty. Gen., 21; compare 26 Op. 
 Atty. Gen., 615, 27 Op. Atty. Gen., 66.) 
 
 WHAT TIME COUNTS AS 
 NAVY. 
 
 SEHVICE IN THE 
 
 Commences upon date of actual entry 
 into service of United States. — Every 
 department of the Government which has had 
 occasion to construe the word "service" in 
 connection -with our military system, has, by 
 long-continued and uniform dec^isions and 
 practice held that, in case of volunteer officers 
 commissioned by the governors of States, their 
 entry into the military service of the United 
 States dates from their muster in and not from 
 date of their enrollment; and in case of volun- 
 teer officers appointed by the President, by 
 and with the advice and consent of the Senate, 
 their service dates from the acceptance of 
 their commissions and oath of office. There 
 are substantial reasons for this construction of 
 the word "service." Accordingly, held, that 
 the prior service of an officer of the Army which 
 is entitled to be counted in determining his 
 relative rank with other officers does not include 
 any period prior to his actual entry into the 
 Army, notwithstanding that Congress author- 
 ized payment of compensation from an earlier 
 date. (23 Op. Atty. Gen., 406, modifying 23 
 Op. Atty. Gen., 232.) _ 
 
 A warrant as midshipman was Issued to an 
 officer December 11, 1812; he did not report for 
 duty, receive orders, nor become entitled to 
 pay as a midshipman until July 1, 1816. Hfld, 
 that his period of service for retirement shoidd 
 be computed from the latter date. If the ques- 
 tion were new, it would be open to serious doubt, 
 but having been decided, and that decision 
 tacitly assented to bv Congress, it should stand. 
 (13 Op. Atty. Gen., '33.) 
 
 54641°— 22- 
 
 -38 
 
 587 
 
Sec. 1443. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Where an officer upon oripnal appointment 
 to the Army was commissioned July 27, 1866, 
 to rank from May 11, 1866, and accepted said 
 commission and entered upon duty September 
 15, 1866, held, that the peiiod elapsing from 
 the date ho took rank as stated in said comrnis- 
 eion to the date that he accepted same and en- 
 tered upon duty, was constructive and not 
 actual ser\-ice, and can not be counted in fixing 
 his relative rank with other officers in cases 
 where the statute requires that prior actual serv- 
 ice shall be counted. (17 Op. Attv. Gen., 
 52.) 
 
 Ser\-ice commences for purposes of longevity 
 pay from the day the officer's commission was 
 signed by the President, and not from an an- 
 tecedent date mentioned in the body of the 
 commission. (Young v. U. S., 19 Ct. Cls., 145.) 
 
 The three years' ser\-ice necessary for promo- 
 tion of ensigns to lieutenants (junior grade) 
 under section 7 of the Navy personnel act of 
 March 3, 1899 (30 Stat., 1005), should be com- 
 puted from the date of their rank as ensigns, 
 this being in accordance with the existing con- 
 struction of the law by the accounting officers 
 and the Navy Department. (22 Comp. Dec, 
 625, citing 22 Comp. Dec, 565, 566; 18 Comp. 
 Dec, 466;- 17 Comp. Dec, 605.) 
 
 Service commences for purposes of longevity 
 pay from date of accepting the office and not 
 from date of taking oath of office where latter 
 is subsequent to acceptance. Yl2 Comp. Dec, 
 245.) 
 
 Where an officer's commission is antedated 
 on original appointment for purposes of rank, 
 his length of service for purposes of promotion 
 may be computed from the date so stated in 
 his commission. (Toulon v. U. S., 52 Ct. 
 Cls., 333; see also 22 Comp. Dec, 623; 17 Comp. 
 Dec, 605; 22 Comp. Dec, 565, 566; 24 Comp. 
 Dec, 177; 18 Op. Atty. Gen., 393, 394.) 
 
 The service of volunteer officers does not 
 commence until they are mustered into the 
 United States, notwithstanding that by statute 
 they are allowed pay trom date of enrollment. 
 (7 Comp. Dec, 617.) 
 
 Period from date of dismissal to reap- 
 pointment, not counted. — Where an officer 
 was dismissed from the Navy and subsequently 
 reappointed pursuant to a joint resolution of 
 Congress, the inter\'ening period during which 
 he was not in fact in the naval service can not 
 on any theory be counted as part of said 40 
 years for retirement under section 1443, Revised 
 Statutes. The act of March 3, 1883 (22 Stat., 
 472), which closes the gap in intermittent serv- 
 ice so as to make it operate as continuous, 
 shows conclusiA-ely that actual service and none 
 other is contemplated by the law. (21 Op. 
 Atty. Gen., 103.) 
 
 Period of unauthorized absence not a 
 period of service. — A private in the Marine 
 Corps is not entitled in computing his increase 
 ot pay for length of service to count the time he 
 was absent from duty without leave. The 
 period of such unauthorized a])sence can not be 
 regarded as a period of ser\'ice. (10 Comp. 
 Dec, 333; file 5460-82, June 3, 1916.) 
 
 Period of service under an illegal ap- 
 pointment. — An officer of the Revenue- 
 Cutter Service [now Coast Guard] is not entitled 
 to credit for prior service as acting assistant 
 
 engineer, where his appointment as such was 
 not authorized by law. (10 Comp. Dec, 854, 
 with reference to longevity pay.) 
 
 Prior service in Coast Guard not 
 counted. — Service in the Revenue Cutter 
 Ser\dce [now Coast Guard] is in no sense service 
 in the Army or Navy. Accordingly, hdd that 
 officers of the Marine Corps are not entitled 
 to credit in computing longevity pay for prior 
 service in the Revenue-Cutter Service. (15 
 Comp. Dec, 807. But see act June 4, 1920, 41 
 Stat., 835, and note to sec 1417, R. S.) 
 
 Prior service in militia not counted. — 
 Officers of the Army are not entitled to credit 
 for prior militia service in computing their 
 longevity pay. (12 Comp. Dec, 522; compare 
 24 Comp. Dec, 120. See act of July 1, 1918 
 40 Stat., 710, crediting Naval Reserve Force 
 members with service in the Naval Militia, 
 etc., for purpose of retirement.) 
 
 Prior service as captain's clerk. — Service 
 as captain's clerk in the Navy should be allowed 
 in computing the longevitv pay of an officer 
 of the Army. (17 Op. Atty. Gen., 93.) 
 
 Prior service as commandant's clerk. — 
 
 The proposal to count ser\ice of clerks of com- 
 mandants in computing military service is an 
 attempt to engraft on the retired list of the 
 Navy and Marine Corps a ciAil retired list. 
 Such legislation is regarded by the Navy De- 
 partment as pernicious, needlessly expensive, 
 and a dangerous precedent; the department is 
 unqualified! v opposed to its enactment. (File 
 26255-295:9, 'May 14 and 21, 1914; file 2625^ 
 295:8, April 29, 1914; file 26255-295:5, Mar. 
 30, 1914.) 
 
 Service as commandant's clerk, being strictly 
 civilian service, should not be counted as naval 
 service any more than any other clerical 
 service at navy yards or in the department 
 proper. Accordingly, the Navy Department 
 disapproves of proposed legislation intended 
 to credit officers -ndth service as commandant's 
 clerks for purposes of retirement, etc. (File 
 26255-274:2, Jan. 21, 1913.) The position of 
 clerk to the governor of the Naval Home is 
 comprehended in the class of clerks to com- 
 mandants of naval stations who under the pro- 
 visions of the act of July 15, 1870 (16 Stat., 
 332, sec. 3), are officers of the Navy and ac- 
 cordingly under the act of March 3", 1883 ( 22 
 Stat., 473), credit for service therein is author- 
 ized in computing the longevity increase of 
 pay of an officer of the Navy. (25 Comp. Dec, 
 745.) 
 
 Service as civilian employee. — Service 
 as a civilian employee in a Navy pay office can 
 not be credited as actual naval serWce within 
 the meaning of the retirement clause in the act 
 of Congress approved Mav 13, 1908. (File 
 5460-35 and 36.) 
 
 Ser\ice as a messenger and clerk in the com- 
 missary and quartermaster's departments of 
 the Army is not serAice in the Army within the 
 meaning of the provision for longevitv pav. 
 (10 Comp. Dec, 83.) 
 
 See note to section 1417, Revised Statutes, 
 "Apprentices at navy yards not enlisted men." 
 
 Time under arrest, in confinement, on 
 bail, etc. — It has long been well settled that 
 the time passed in arrest under military con- 
 
 588 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1444. 
 
 trol, but not under sentence of court-martial, 
 must be counted in making up five-year service 
 periods for increased pay under section 1262, 
 Revised Statutes. (3 Comp. Dec, 682; com- 
 pare 3 Comp. Dec, 697; 3 Comp. Dec, 433.) 
 
 A soldier in an-est under military control 
 may be required to perform many duties; he is 
 entitled to a speedy trial, and if held in arrest 
 for a long period, it is for the convenience of 
 the Government. (3 Comp. Dec, 683.) 
 
 In view of the presumption of law that a 
 person charged -with crime is innocent until 
 found guilty by a competent tribunal, although 
 this rule has some limitations in military law 
 as in cases of time lost by absence without leave 
 or by desertion, held, that a soldier who is 
 restored to duty from arrest without trial is 
 entitled to count the time he was held in arrest 
 under military control as service for bounty 
 purposes (3 Comp. Dec, 676). But, if subse- 
 quently found guilty, time so in arrest can not 
 be counted in making up the term of ser\ice 
 necessary to obtain bounty, as during such 
 period he is not serving within the meaning 
 of the bounty laws. (3 Comp. Dec, 684; see 
 also 3 Comp. Dec, 692.) 
 
 A statute pro^dding that deserters from the 
 Army shall be liable to "serve" for such period 
 as necessary to make good time lost while in 
 desertion, refers to actual military service and 
 does not include time spent in prison under 
 sentence of coiurt-martial. The period during 
 which a soldier is in arrest and confinement 
 in pursuance of a court-martial sentence after 
 his term of enlistment has expired should not 
 be counted in the computation of his continu- 
 ous-service pay. (12 Comp. Dec, 592.) 
 
 Pay of an enlisted man of the Navy held by 
 the civil authorities for trial on a criminal charge 
 should not be paid until he is acquitted, and 
 if found guilty his pay is then forfeited to the 
 United States from the date of his arrest. (2 
 Comp. Dec, 584.) 
 
 Where a carpenter's mate of the Navy was 
 arrested by the ci\'il authorities on a criminal 
 charge, and admitted to bail on his own recog- 
 nizance and his trial indefinitely postponed, 
 and it was apparently not the intention of the 
 authorities to further prosecute his case, his 
 pay was not thereby forfeited. (10 Comp. Dec, 
 490. )_ 
 
 It is well settled that an enlisted man in the 
 military service is not entitled to pay for time 
 while held for trial by the civil authorities, 
 unless subsequently tried and acquitted, or 
 discharged without trial. (10 Comp. Dec, 
 490.) 
 
 A soldier arrested by the civil authorities 
 and released without trial, is entitled to pay 
 and allowances during the period he was in 
 arrest, and to count said period for bounty. 
 (3 Comp. Dec, 676; see also 9 Comp. Dec, 
 249.) Where contacted by the civil authorities, 
 he is not entitled to pay and allowances from 
 the date he was turned over to the civil authori- 
 ties. (3 Comp. Dec, 334.) 
 
 An officer of the Army who was con\dcted by 
 the ci\'il courts of the Philippine Islands and 
 released under bond, pending an appeal to a 
 higher court, is not entitled to pay pending the 
 final determination of the appeal. (11 Comp. 
 Dec, 659.) The status of such officer is that 
 of "absent without leave," within the mean- 
 ing of section 1265, Revised Statutes, pending 
 the determination of said appeal, and under 
 the provisions of said section he is not entitled 
 to pay during such absence. (11 Comp. Dec, 
 755. Overruled, Carrington v. U. S., 46 Ct. 
 Cls., 279, citing Walsh v. U. S., 43 Ct. Cls., 
 225.) 
 
 An officer of the Navy who had previously 
 served as an enUsted man in the Army is en- 
 titled to be credited with service for the time 
 he was in confinement under sentence of Army 
 court-martial for desertion. (File 5460-82, 
 June 3, 1916). 
 
 Sec. 1444. [Eetirement after sixty-two years of age, or forty-five years 
 service.] When any officer below the rank of Vice- Admiral is sixty- two years 
 old, he shall, except in the case provided in the next section, be retired by the 
 President from active service. — (21 Dec, 1861, c. 1, s. 1, v. 12, p. 329. 16 
 July, 1862, c. 183, s. 8, v. 12, p. 584. 25 June, 1864, c. 152, s. 1, v. 13, p. 183. 
 21 Dec, 1864, c 6, s. 3, v. 13, p. 420. 3 Mar., 1873, c 230, v. 17, p. 556.) 
 
 Amendment to this section was made by act 
 August 29, 1916 (39 Stat. 579), fixing the 
 age of retirement at 64 years, except in the 
 cases of captains, commanders, and lieu- 
 tenant commanders who, after June 30, 
 1920, become ineligible for promotion on 
 account of age (56, 50, or 45 years, respect- 
 ively), who shall be retired at rates of pay 
 graded according to their length of service. 
 (See also sec. 1445, below.) 
 
 Dental Corps officers who were over 40 years of 
 age on original appointment shall not be 
 eligible for retirement before reaching the 
 age of 70 years, except for physical dis- 
 ability incurred in line of duty. (Act 
 Aug. 29, 1916, 39 Stat., 574, as amended 
 by act July 1, 191g, 40 Stat., 709.) 
 
 Dental surgeon at the Naval Academy not to 
 be retired before reaching the age of 70 
 years, except for physical disability in- 
 curred in line of duty. (Act Mar. 4, 1913, 
 37 Stat., 891, as amended by act July 1, 
 1918, 40 Stat., 709.) 
 
 Naval Reserve Force members shall upon reach- 
 ing the age of 64 years be disenroUed 
 except that in time of war or other national 
 emergency such members of the Naval 
 Reserve Force, if in active service, may 
 be continued therein during such period 
 as the Secretary of the Navy may deter- 
 mine, but not longer than six months after 
 said war or other national emergency shall 
 cease to exist. (Act July 1, 1918, 40 
 Stat., 711.) 
 
 589 
 
Sec. 1444. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Pay of oflicers retired ''after forty -five years' 
 
 8er\ice after reacliiug the age of sixteen 
 
 years, * * * or on attaining the age of 
 
 sixty-two years." (See sec. 1588, R. S.) 
 
 Rank on retirement of staff officers retired for 
 
 age or after 45 years' service. (See sec. 
 
 1481, R. S.) 
 
 Rank on retirement of certain bureau chiefs 
 
 retiied for age. (See sec. 1473, R. S.; see 
 
 generally, as to retirement of cliiefs of 
 
 biueaiis, note to sec. 421, R. S.; and see 
 
 note to sec. 1457, R. S., as to rank of officers 
 
 on retirement under special conditions.) 
 
 Retiring board not necessary for retirements 
 
 on account of age. (See sec. 1455, R. S.) 
 Retirement of staff ofhcers after 45 years' 
 
 service. (Sec. 1481, R. S.) 
 Warrant officers, mates etc. (See note to sec. 
 1443, R. S.) 
 Historical note. — This section, as drafted 
 by the Conmiissioners for the Revision of the 
 United States Statutes (1 Comrs. Draft, 700), 
 was entitled, "After sixty-two years of age, or 
 forty-five years' service," and" read: "When 
 any officer below the rank of vice admiral is 
 sixty-two years old, or uhen his name has been 
 borne on the Naval Register for a period of forty- 
 five years since he arrived at the age of sixteen 
 years, he shall, except in the case provided in 
 the next section, be retired by the President 
 from active service." The words in italics 
 were omitted from tliis section as adopted by 
 Congress, but the caption, "After sixty-two 
 years of age, or forty-five years' service," was 
 retained. 
 
 The laws upon which tliis section as drafted 
 by the Commissioners was based, and which 
 are cited iia the marginal notes theremider, pro- 
 vided as follows: 
 
 Act of December 21, 1861, section 1 (12 Stat., 
 329): "That whenever the name of any naval 
 officer now in the service, or who may hereafter 
 be in the service of the United States, shall have 
 been borne on the Naval Register forty-five 
 years, or shall be of the age of sixty-two years, 
 he shall be i-etired from active service, and his 
 name entered on the retired list of officers of 
 the grade to which he belonged at the time of 
 such retirement." 
 
 Act July 16, 1862, section 8 (12 Stat., 584): 
 "That whenever, upon the recommendation of 
 the President of the United States, any officer 
 of the Navy, now upon the active list, not below 
 the grade of commander, has received, or shall 
 receive, by name, during the present war, a 
 vote of thanks of Congress for distinguished 
 service, such officer shall not be retired, except 
 for cause, until he has been fifty-five years in 
 the naval service of the United States." 
 
 Act June 25, 1864, section 1 (13 Stat., 183), 
 pro-\dded that the above section of the act of 
 December 21, 1861, "shall not be so construed 
 as to retire any officer under the age of sixty- 
 two years, and whose name shall not have been 
 borne upon the Navy Register for a period of 
 forty-five years after he had arrived at the age 
 of sixteen years." 
 
 Act December 21, 1864, section 3 (13 Stat., 
 420): "That the first section of an act approved 
 December twenty-first, eighteen hundred and 
 sixty-one, entitled 'An act further to promote 
 the efficiency of the Navy,' shall not be so 
 
 construed as to apply to any one holding a 
 commission as a vice admiral in the Navy." 
 
 Act March 3, 1873 (17 Stat., 556): "That the 
 act of Congress approved December twenty- 
 first, eighteen hmidred and sixty-one, entitled 
 'An act to further promote the efficiency of 
 the Navy,' and the act approved June twenty- 
 fifth, eighteen hundred and sixty-four, entitled 
 'An act to amend the act of the twenty-first 
 December, eighteen hundred and sixty-one, 
 entitled "An act to further promote the effici- 
 ency of the Navy," ' shall not be hereafter con- 
 strued to retire any officer before sixty-two 
 years of age." 
 
 The first section of the act of December 21, 
 1861 (12 Stat., 329), retired from service two 
 classes of naval officers, firstly, those whose 
 names may have been borne on the Naval Regis- 
 ter 45 years, and secondly, those who had 
 arrived at the age of 02 years. The act of June 
 25, 1864, provided that the act of 1861 "shall 
 not be so construed as to retire any officer under 
 the age of sixty-two j'ears, and whose name 
 shall not have been borne upon the Navy 
 Register for a period of forty-five years after 
 he had arrived at the age of sixteen years." 
 The latter act had the effect of removing from 
 the retired list officers of the Navy who were 
 retired in pursuance of the act of December 21, 
 1861, but who were not liable to be retired by 
 the provision of the act of 1864. (11 Op. Atty. 
 Gen., 144.) 
 
 The act of December 21, 1861, prescribed 
 that officers should be retired from active serv- 
 ice for two separate reasons, ^n.z, (1), whose 
 names shall have been borne on the Navy Reg- 
 ister for 45 years; or (2), who shall be of the age 
 of 62 years. That act did not speak in the 
 conjunctive but in the disjunctive; that is, if 
 either the one cause or the other existed, an 
 officer might be retired. This act was manda- 
 tory, and if an officer had served 45 years his 
 retirement followed as a matter of course, with- 
 out regard to his age. As a result, no doubt, offi- 
 cers were placed on the retired list who had not 
 attained the age of 62 years, and this fact led to 
 the enactment of the act of June 25, 1864, 
 whereby the retirement of an officer was for- 
 bidden until he had reached the age of 62 years 
 and his name had been borne on the N avy Reg- 
 ister for 45 years. Here the act was in the 
 conjunctive, and thereafter both conditions for 
 retirement apparently must have concurred, 
 i. e., both as to age and as to length of service. 
 Later came the act of 1873, which provided that 
 the acts above mentioned should not be con- 
 strued "to retire any officer before sixty-two 
 years of age"; but while no express mention 
 was made therein as to any modification of the 
 retirement as to the completion of 45 years' 
 service, it is a fact that the Navy Department 
 for nearly 40 years has construed the law now 
 embodied in section 1444 of the Revised Stat- 
 utes as only requiring the fulfillment of either 
 requirement. (File 5460-32 : 17, Feb. 7, 1912.) 
 
 The opinion of the District of Columbia Su- 
 preme Court in the case of Foreman v. Meyer 
 (mandamus against the Secretary of the Navy, 
 file 5460-32) states the provisions of law upon 
 which section 1444, Revised Statutes, is based, 
 and then continues: "This legislation, ante- 
 dating the enactment of said section 1444 of the 
 
 590 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1444. 
 
 Revised Statutes of 1878, indicates that it was 
 not contemplated by Congress that ofiicers were 
 to be retired on reaching the age of 62 years, 
 unless they had been continuously in the serv- 
 ice for 45 years; and for that reason the relator, 
 even if he is an officer within the meaning of 
 that section, which is c[uestionable, fails to show 
 a clear case entitling him to the right of retire- 
 ment or a plain administrative duty on the 
 part of the Secretary of the Navy to place his 
 name on the list of retired officers. ' ' The court 
 then reviewed the periods of service of peti- 
 tioner and said that "taken all together, they 
 do not seem sufficient to warrant the court in 
 holding that he has been for 45 years in the 
 service of the United States as a naval officer, 
 and it is not certain but that a proper construc- 
 tion of the law requii'es such service to be shown 
 before the President is in duty bound to act in 
 the premises." (File .5460-32:17, Feb. 7, 
 1912; see also Foreman v. Meyer, 227 U. S., 
 452, 38App. D. C, 472.) 
 
 It must be conceded that the several separate 
 provisions of law upon which section 1444 is 
 based are not entii'ely clear, but the construc- 
 tion given to those laws by the Navy Depart- 
 ment during a period of 39 years under siich 
 circimistances should be controlling (citing 
 U. S. V. Healey, IGO U. S., 136, 141, 145). But 
 even if this fact were not regarded as controlling, 
 there is other evidence of a legislative character 
 as to what were intended to be the require- 
 ments for the kind of retirement now being 
 considered (citing sees. 1481 and 1455, R. S.). 
 The former section plainly provides for retire- 
 ment after 45 years' service, but it also pro- 
 vides separately for the retirement of officers at 
 the age of 62 years, "before having served for 
 forty-five years," and confers a higher rank 
 upon those of this latter class "who shall have 
 served faithfully until retired " after 40 years' 
 service. This is a definite legislative recogni- 
 tion of the department's construction of the 
 law, and clearly shows that the provisions of the 
 law then and now in force do not require that 
 an officer must have served 45 years before he 
 can be retired for age, but, on the contrary, indi- 
 cate that there may be retirement for the single 
 reason that an officer has attained the age of 62 
 years. Section 1473, Revised Statutes, also 
 indicates the same construction, and section 
 1588 confirms it. The latter section specifically 
 provides for retirement on attaining the age of 
 62 years, separate and distinct from retirement 
 after 45 years' sersdce. Section 1589 also con- 
 firms the views above expressed . It appears to 
 be evident from the above that the construction 
 placed by the Navy Department upon the law 
 relating to retirement for age is entirely correct. 
 (File 5460-32:17, Feb. 7, 1912.) 
 
 The act of March 3, 1873 (above quoted), in 
 effect repealed the 45-year retirement clause in 
 tJie act of December 21, 1861 (above quoted), 
 and the latter clause has not been carried into 
 the Revised Statutes. (File 27231-10, Feb. 9, 
 1910; see also sec. 5596, R. S., repealing all 
 acts of Congress passed prior to Dec. 1, 1873, any 
 portion of which is embraced in any section of 
 the Revised Statutes.) 
 
 Age retirement not automatic; action 
 of President required. — The Army law, 
 providing that when an officer "is sixty-four 
 
 years of age he shall be retired from active serv- 
 ice and placed on the retired list," does not 
 operate, ipso facto, to place him on the retired 
 list when he reaches the age specified, but it 
 requires action by the President to carry it into 
 effect. Accordingly, hdd that where an order 
 was issued on the date that an officer became 
 64 years of age, retiring him from active service, 
 which order was not received by him until 
 more than a month later, and he was not re- 
 lieved of duty until another month later, he 
 was entitled to full pay to the date that he was 
 relieved from duty. (9 Comp. Dec, 20; com- 
 pare 9 Comp. Dec, 299, noted below.) 
 
 The delay in the above case was not unrea- 
 sonable, and was not caused by any act or de- 
 fault of the officer. It is within the power of 
 the War Department to issue an order in ad- 
 vance of the date on which an officer arrives 
 at the age of 64 years, to take effect on that 
 date, and also to issue an order to him in ad- 
 vance relieving him from duty on the active 
 list on that date. (9 Comp. Dec, 20; compare 
 9 Comp. Dec, 299, noted below.) 
 
 Retirement for age automatically de- 
 taches officer from duty. — The retirement 
 of an officer for age therel)y detaches him from 
 active duty, and the commanding officer of his 
 vessel is not authorized to retain him in active 
 service unless it is done in accordance with a 
 decision of the Secretary of the Navy pursuant 
 to law. Accordingly, held that an officer so 
 retained in active service without authority of 
 the Secretary of the Navy, is entitled to retired 
 
 Bay only, from date of his retirement. (9 Comp. 
 •ec, 299; see also note to sec. 1462, R. S.; 
 compare 9 Comp. Dec, 20, noted above.) 
 
 An order of the President placing an officer of 
 the Navy upon the retii'ed list pursuant to sec- 
 tion 1444, Revised Statutes, changes the status of 
 such officer wherever he may be and whatever 
 duty he may be performing, and thereafter he is 
 entitled to retned pay only unless such status is 
 changed by some subsequent order of the Secre- 
 tary of the Navy to perform active duty . 1 1 may 
 be that the Secretary of the Navy might issue a 
 preliminary order in terms assigning an officer 
 to duty after retirement, but such order should 
 be certain in its terms and not given that effect 
 by strained construction. (Terry v. U. S., Ct. 
 Cls., No. 28148, 86 S. and A. Memo., 644; see 
 also 17 Comp. Dec, 533.) 
 
 When retirement for age becomes 
 effective. — An officer of the Navy becomes 
 62 years of age and is required to be retired 
 within the meaning of section 1444, Re\'ised 
 Statutes, the moment of the beginning of the 
 date of the sixty-second anniversary of his 
 birth, and is not entitled to jsay on the active 
 list on that day. (3 Comp. Dec, 581. In this 
 case the order for the officer's retirement was 
 issued beforehand, to take effect on the date 
 of his sixty-second birthday. Compare 16 
 Comp. Dec, 682, noted under sec. 1458, R. S.) 
 The officer ceased to be an officer on the ac- 
 tive list of the Navy upon the very moment 
 after midnight that the 5th day of April began, 
 and was in accordance with the very terms of 
 the order of April 1, transferred to the retired 
 list "on April 5, 1897." The law does not 
 consider fractions of a day, "and it is the same 
 whether a thing is done upon one moment of 
 
 591 
 
Sec. 1444. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 the (lay or another." lie became in the eye 
 of the law C2 years of age the moment after 
 midnight between the fourth and fifth days of 
 April. (3 Corap. Dec, 581.) 
 
 For other cases, see note to section 1457, 
 Revised Statutes, "When retirement or ad- 
 vancement on retired list takes effect." See 
 also note to section 14-')8, Revised Statutes. 
 
 Oflicer who reaches retirement age 
 while his promotion is pending. — ^Whcre 
 upon the retirement of a rear-admiral for age, 
 a commodore next in line was nominated to be 
 a rear-admiral to fill the vacancy, and before 
 action thereon by the Senate the said commo- 
 dore attained the age of 62 years and was retired 
 under section 1444, Revised Statutes, as a 
 commodore: Advised that, according to the 
 law and usage of the service, the officer in this 
 case was entitled by relation to be a rear- 
 admiral from the date when the vacancy oc- 
 curred , and to receive the pay of a rear-admiral 
 from that date; and if the Senate should con- 
 firm his nomination he might be commissioned 
 as a rear-admiral and placed on the retired list 
 as of that grade. (18 Op. Atty. Gen., 393; 
 compare 25 Op. Atty Gen., 591, and 29 Op. 
 Atty. Gen., 257, noted under sec. 1458, 
 R. S., to effect that office does not vest until 
 date of commission, notwithstanding that it is 
 made to relate back for purposes of rank.) 
 
 Where an officer accepts a recess promotion 
 and thereafter becomes eligible for retirement 
 by reason of age before the adjournment of 
 Congress and before the appointment is acted 
 upon by the Senate, he is entitled to be retired 
 with the rank of his new appointment. (29 
 Op. Atty. Gen., 598; see also note to sec. 
 1457, R. S.) 
 
 Retirement by special act made to 
 relate back. — The words, "and to place him 
 on the retired list of the Navy as of date June 
 first, eigliteen hundred and ninety-five," in 
 the special enactment of Congress for the relief 
 of a former officer, must be construed to show 
 the legislative intent to be that he was to be 
 retired as "on attaining the age of sixty- two 
 years," he having attained that age on May 30, 
 1895. (3 Comp. Dec, 706.) 
 
 For other cases, see note to section 1457, 
 Revised Statutes, "When retirement or ad- 
 vancement on retired list takes effect." 
 
 Appointment of ofllcer already past 
 retiring age. — Where Congress, by special 
 enactment, authorizes the appointment as an 
 officer of a designated person who is already- 
 past the retiring age, but says nothing in such 
 enactment about placing him on the retired 
 list, it must be held that the law relatmg to 
 retirement for age has no application to his case. 
 Should he ^ be physically incapacitated for 
 active service he may be ordered before a 
 retiring board in accordance with law. There 
 are many precedents which show that when 
 Congress has intended to authorize the appoint- 
 ment of a civilian as an officer of the naval serv- 
 ice, and immediately upon such appointment 
 to transfer him to the retired list, it has not 
 failed to express such intention in explicit 
 language. In the present case Congress did 
 not pro\'ide for the appointment of the civilian 
 as a first lieutenant on the retired list of the 
 Marine Corps, nor did it provide that he should 
 
 be appointed on the active list and then re- 
 tired, as has been the practice in similar cases 
 when such was the intention, but, on the con- 
 trar)', notwithstanding his age, Congress 
 authorized his appointment as an officer on 
 the active list of the Marine Corps "as an extra 
 number, not iix the line of promotion," which 
 language would have been unnecessary had his 
 immediate retirement been in contemplation. 
 (File 27231-52, May 16, 1913.) 
 
 If the laws prescribing the age for retirement 
 of Army ofiicers were held applicable to the 
 volunteer service, the President would not 
 have the right to appoint to an office in the 
 volunteer service any one of the age of 64 or 
 over. (22 Op. Atty. Gen., 199.) 
 
 Where the law creates new offices in the naval 
 service, and does not prescribe any age limit for 
 appointment thereto, held, that a person other- 
 wise qualified, but who had already passed the 
 retiring age, is not eligible for appointment. 
 The retirement laws fix the maximum age be- 
 yond which no person may lawfully be ap- 
 pointed to any office in the naval servdce 
 without the specific authoritv of Congress. 
 (File 11112-658, Nov. 15, 1916" Compare file 
 26255-54:7, July 15, 1912.) 
 
 Age retirement held inappUcable to 
 volunteer ofiicers. — The law fixing the age 
 of retirement in the Army at 64 years was not 
 intended to operate to restrict future eligibility 
 to serve in an emergency, nor to limit the riglit 
 of the President to appoint to a new volunteer 
 service. The Army retired lists apply to the 
 Regular Army alone, with due credit given for 
 the time of volunteer service of officers of the 
 Regular Army, and do not apply to a volunteer 
 Army. A contrary view would lead to an un- 
 reasonable consequence, such as the courts 
 in construing legislation will reject, viz, that 
 the President would not have the right to 
 appoint to an office in the volimteer service 
 anyone of the age of 64 years or over, and that 
 an officer in the volunteer service, reaching 
 the age of 64 years, without the continuous 
 service contemplated by the retirement acts, 
 and no matter how brief his period of duty, 
 would be entitled to be retired. It is only 
 necessary to state this position to refute it. 
 (22 Op. Atty. Gen., 199.) 
 
 Where the law fixes no age limit for officers 
 in the Volunteer Army, it is competent for the 
 President to appoint as a major general or 
 brigadier general in the Volunteer Army a 
 person above the age of 64 years. (22 Op. 
 Atty. Gen., 176; affirmed 22 Op. Atty. Gen., 
 199.) 
 
 Where the law fixes no age limit for officers 
 in the Volunteer Army, an officer of the Regular 
 Army, holding at the same time a commission 
 as a general in the Volunteer Army, may con- 
 tinue to hold and exercise his commission 
 in the Volunteer Army after having been placed 
 upon the retired list of the Regular Army by 
 reason of the age limit. (22 Op. Atty. Gen., 
 176; affirmed 22 Op. Atty. Gen., 199.) 
 
 Officer retired for incapacity and sub- 
 sequently reaching retiring age. — Where 
 the law provided for placing certain officers 
 [Revenue Cutter Service] upon a "retired 
 waiting orders list," when found by a retiring 
 board to be incapacitated for active service, 
 
 592 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1446. 
 
 and that "officers thus retired may be assigned 
 to such duty as they may be able to perform," 
 and further provided that when any officer 
 ' ' has readied the age of sixty-four years he shall 
 be retired by the President from active serv- 
 
 ice," held, that an officer placed on the 
 retired waiting orders list should, upon be- 
 coming 64 years of age, be retired from active 
 ser\'ice under the latter provision. (11 Comp. 
 Dec, 612.) 
 
 Sec. 1445. [Officers of certain ranks to be retired only for disability.] 
 The two preceding sections shall not apply to any lieutenant-commander, 
 lieutenant, master, ensign, midshipman, passed assistant surgeon, passed 
 assistant paymaster, first assistant engineer, assistant surgeon, assistant pay- 
 master, or second assistant engineer; and such officers shall not be placed upon 
 the retired list, except on account of physical or mental disability. — (15 July, 
 1870, c. 295, s. 6, v. 16, p. 333.) 
 
 Dental Corps retirements were not to be affected 
 by provisions of this section, under a clause 
 in the act of August 22, 1912 (37 Stat., 345), 
 which act, in so far as it pertained to the 
 Dental Corps, was superseded by act of 
 August 29, 1916 (39 Stat., 573), the pro- 
 visions of which latter act were in turn 
 superseded by act of Julyl, 1918(40 Stat. 
 709), which also provided that section 1445, 
 Revised Statutes, "shall not be applicable 
 to dental officers." 
 
 " First assistant engineer, " and "second assist- 
 ant engineer," titles changed to passed 
 assistant engineer and assistant engineer, 
 and Engineer Corps afterwards abolished. 
 (See note to sec. 1390, R. S.) 
 
 Lieutenants and Lieutenant commanders, pro- 
 vision for compulsory retirement of, to 
 create vacancies, was made by act of March 
 3, 1S99, section 9 (30 Stat., lOOG), repealed 
 by act of March 3, 1915 (38 Stat., 938). _ 
 
 Lieutenant commanders, provision for retire- 
 ment of, upon their own application, to 
 create vacancies, was made by act of March 
 3, 1899, section 8 (30 Stat., 1006). 
 
 Lieutenant commanders, provision for retire- 
 ment of, upon becoming ineligible for pro- 
 motion on account of age (45 years), was 
 made by act of August 29, 1916 (39 Stat., 
 579), effective June 30, 1920. 
 
 "Master" and "midshipman," titles changed 
 to lieutenant (junior grade) and ensign. 
 (See note to sec. 1362, _R. S._) 
 
 Retirements on account of Usability. (See sec. 
 1448, R. S.) 
 
 Temporary officers, appointed for service dur- 
 ing war with Germany, not entitled to re- 
 tirement except for physical disability in- 
 
 curred in line of duty. (Act May 22, 1917, 
 sec. 9, 40 Stat., 84.) 
 
 "Physical incapacity" is defined as a 
 condition, bodily or mental, which unfits at 
 present, or is likely to unlit in the near future, 
 the officer for the performance of his duties. 
 (21 Op. Atty. Gen., 387, quoting Circular, War 
 Department, Dec. 18, 1890, relating to ex- 
 amination for promotion. See further, note to 
 sec. 1448, R. S.) 
 
 Midshipmen are retired for physical 
 disability pursuant to special acts of Congress, 
 and are given the rank of ensign on the retired 
 list, these cases not being provided for by gen- 
 eral statutes. See for example, act ]\Iarch 3, 
 1901 (31 Stat., 1792), in case of Frank B. Case; 
 act March 4, 1907 (34 Stat., 1417), in case of 
 Harold D. Childs; act January 5, 1909 (35 Stat., 
 585), in case of WilUam Parker Sedgwick; act 
 February 13, 1911 (36 Stat., 899), in case of 
 John M. Blankenship; and act March 3, 1911 
 (36 Stat., 1079), in case of William H. Walsh. 
 
 The Navy Department is of the opinion that 
 midshipmen who become disabled in line of 
 duty while serving as officers at sea should have 
 the benefit of the retirement laws in the same 
 manner as other officers of the Navy, has recom- 
 mended general legislation to that effect, and 
 looks with favor upon the passage of a meas- 
 ure for the retirement of a former midshipman 
 under such circumstances. (File 6288-1, Jan. 
 14, 1907; file 26255-802, May 9, 1910; file 
 9066-1, Jan. 20, 1908.) IVIidshipmen are now 
 commissioned as officers on graduation from the 
 Naval Academy, instead of serving two years 
 as midshipmen at sea after such graduation, as 
 was formerly the case. See act of March 7, 1912 
 (37 Stat., 73). 
 
 Sec. 1446. [Officers who have received a vote of thanks; retirement after 
 fifty-five years' service. Obsolete.] 
 
 This section provided as follows: 
 
 "Sec. 1446. Officers on the active list, not 
 below the grade of commander, who have, upon 
 the recommendation of the President, received 
 by name, during the war for the suppression of 
 the rebellion, a vote of thanks of Congress for 
 distinguished service, shall not be retired, ex- 
 cept for cause, until they have been fifty-five 
 years in the service of the United States." — 
 (16 July, 1862, c. 183, s. 8, v. 12, p. 584.) 
 
 It is rendered obsolete by having been 
 fully executed, as there are no officers now on 
 
 the active list of the Navy who are affected by 
 its provisions. 
 
 Civil War service. — Increased rank and pay 
 on retirement of officers of the Na\y, with 
 creditable records, who served during theCi^al 
 War, was authorized by act of March 3, 1899, 
 section 11 (30 Stat., 1007), act of June 29, 1906 
 (34 Stat., 554), and act of March 3, 1909(35 
 Stat., 753). 
 
 Thanks of Congress, effect of. — See 
 sections 1365, 1465, 1508-1510, Revised Stat- 
 utes. 
 
 593 
 
Sec. 1447. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 Officers who received thanks of Congress 
 during Civil War. — The follo\\iiig ollicers 
 rec-eived the thanks of Congress by name: 
 
 Capt. Samuel F. Dupont, February 22, 1862 
 (12 Stat., 613). 
 
 Capt. A. H. Foote, March 19, 1862 (12 Stat., 
 616). 
 
 Capt. Louis j\I. Goldsborough, July 11, 1862 
 (12 Stat., 621). 
 
 Lieut. J. L. Worden, July 11, 1862 (12 Stat., 
 622). 
 
 Capt. David G. Farragut, July 11, 1862 (12 
 Stat., 622). 
 
 Capt. Andrew H. Foote, July 16, 1862 (12 
 Stat., 626). 
 
 Commodore Charles Hemy Davis, February 
 7, 1863 (18 Stat., 823). 
 
 Commander John L. Worden, February 3, 
 1863 (12 Stat., 823). 
 
 Capt. John A. Dahlgren, February 7, 1863 
 (12 Stat., 824). 
 
 Capt. Stephen C. Rowan, February 7, 1863 
 (12 Stat., 824). 
 
 Commander David D. Porter, February 7, 
 
 1863 (12 Stat., 824). 
 
 Rear Admiral Silas H. Stringham, February 
 7, 1863 (12 Stat., 824). 
 
 Capt. John Rodgers, December 3, 1863 (13 
 Stat., 399). 
 
 Commodore Cadwalader Ringgold, March 7, 
 
 1864 (13 Stat., 403). 
 
 Admiral David D. Porter, April 19, 1864 (13 
 Stat., 404). 
 
 Capt. John A. Winslow, December 20, 1864 
 (13 Stat., 505). 
 
 Lieut. William B. Cushing, December 20, 
 
 1864 (13 Stat., 565). 
 
 Rear Admiral David D. Porter, January 24, 
 
 1865 (13 Stat., 566). 
 
 Vice Admiral David G. Farragut, February 
 10, 1806 (14 Stat., 349). 
 
 What time counted as "service" in the 
 Navy. — See 13 Op. Atty. Gen., 33, noted under 
 section 1443, Revised Statutes, 
 
 Sec. 1447. [Retirement of officers not recommended for promotion.] Wlien 
 the case of any officer has been acted upon by a board of naval surgeons and 
 an examining board for promotion, as provided in Chapter Four of this Title, 
 and he shaU not have been recommended for promotion by both of the said 
 boards, he shall be placed upon the retired list. — (21 April, 1864, c. 63, s. 4, v. 
 13, po 53.) 
 
 Captains, commanders, and lieutenant com- 
 manders who fail professionally shall there- 
 after be ineligible for promotion; if they 
 fail physically they shall not be considered , 
 in the event of retirement, entitled to the 
 rank of the next higher grade. (Act Aug. 
 29, 1916, 39 Stat. 579.) 
 
 "Chapter Four of this Title," refers to sections 
 1466-1510, Revised Statutes. 
 
 Officers not to be retired for misconduct. (Sec. 
 1456, R. S.) 
 
 Officers examined for promotion and found 
 unfit to perform duties at sea, by reason 
 of drunkenness or other misconduct, shall 
 not be retired but shall be discharged with 
 not more than one year's pay. (Act Aug. 
 5, 1882, 22 Stat., 286; see note to sec. 
 1456, R. S.) 
 
 Oflicers failing physically upon examination 
 for_ promotion, to have increased rank on 
 retirement, in certain cases. (Act Mar. 4, 
 1911, 36 Stat., 1267; amended by act Aug. 
 29, 1916, 39 Stat., 579.) 
 
 Officers below gi-ade of commander failing pro- 
 fessionally upon examination for promo- 
 tion, to be suspended from promotion for 
 six months, then reexamined and if found 
 not qualified upon reexamination, to be 
 dropped from the service. (Sec. 1505, R. 
 S., as amended by act Mar. 11, 1912, 37 
 Stat., 73; but see act Aug. 29, 1916, 39 
 Stat., 579, noted above, as to professional 
 failure of lieutenant commanders.) 
 
 Officers may be retired, on account of failing 
 to be recommended for promotion, without 
 appearing before a retiring board. (See 
 sec. 1455, R. S.) 
 
 Physical or mental disability only ground for 
 retirement of certain officers. (See sec. 
 1445, R. S., and note thereto.) 
 Staff officers: " Hereafter all laws relating to 
 the examination of officers of the Navy 
 for promotion shall be construed to apply 
 to the regular advancement of staff offi- 
 cers to higher ranks on the active list the 
 same as though such advancements in rank 
 were promotions to higher grades: Pro- 
 vided, That examinations of such staff offi- 
 cers shall not be required except for such 
 regular advancements in rank." (Act May 
 22, 1917, sec. 20, 40 Stat., 89.) 
 This section applicable only to officers 
 above the grade of lieutenant com- 
 mander. — The act of April 21, 1864, was the 
 first act requiring examinations generally prior 
 to promotion. The failm'e on such examination 
 resulted in retirement, and this applied to all 
 grades below that of commodore. The depart- 
 ment's construction of the statute was that 
 failure upon either examination was a proper 
 cause for retirement. This procedure con- 
 tinued until 1870, when by the act of July 15 
 of that year (now sec. 1505, R. S.), there 
 was substituted for retirement in certain cases 
 a provision for suspension from promotion of 
 officers below the grade of commander who 
 failed professionally upon examination. Re- 
 tirement upon professional failure for promo- 
 tion, which theretofore had applied to all 
 grades, thereafter apphed only to the cases of 
 officers of the grades of commander and cap- 
 tain. (File 26260-874, June 3, 1910; compare 
 act Aug. 29, 1916, 39 Stat., 579, as to line 
 officers of and above the grade of lieutenant 
 
 594 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1447. 
 
 commander who are not recommended for pro- 
 motion.) 
 
 An officer of the rank of commander was 
 examined for promotion and found physically, 
 mentally, and morally, but not professionally, 
 qualified; recommended for promotion by the 
 medical board, but not so recommended by 
 the naval examining board. Section 1496, Re- 
 vised Statutes, prohibits promotion of officers 
 below the rank of commodore (now rear ad- 
 miral) until found mentally, morally, and pro- 
 fessionally qualified by a board of examiners. 
 The penalty for professional failure is fixed by 
 section 1505, Revised Statutes, which applies 
 only to officers below the grade of commander; 
 that section does not apply to present case, as 
 the officer is in the grade of commander, and 
 not below it. Question presented, What dis- 
 position should be made of this case? Section 
 1447, Revised Statutes, provides for retirement 
 of officer not recommended for promotion. In 
 general, under section 1456, Revised Statutes, 
 and the act of August 5, 1882, misconduct is 
 not a ground for retirement. This officer's 
 record does not show that he is accused of 
 anything of that nature ; he would not, there- 
 fore, be subject to discharge on that ground, 
 which could only follow as the result of a find- 
 ing of moral disqualification, nor would he be 
 subject to dismissal by a court-martial. It 
 would appear, then, that he can not be dis- 
 missed, discharged, suspended, or promoted, 
 nor can he be retired, unless imder the pro- 
 visions of section 1447. He can not, moreover, 
 be retained at the top of the list of commanders 
 until such time as he may be able to qualify, 
 because of the requirements of section 1458, 
 Revised Statutes, and yet, although the senior 
 officer, he can not be advanced as he has not 
 qualified therefor. The only alternative is to 
 apply the provisions of sections 1496 and 1447, 
 Revised Statutes. Advised, accordingly, that 
 this officer should be retired under the pro^'i- 
 sions of section 1447, Revised Statutes. (File 
 26260-874, June 3, 1910. This case was dis- 
 posed of by the voluntary retirement of the 
 officer concerned in accordance with sec. 8 of 
 the Navy personnel act approved Mar. 3, 1899, 
 30 Stat., 1006.) 
 
 Action of both boards essential before 
 retirement under this section. — The act 
 of April 21, 1864, section 4, chapter 63 [now em- 
 bodied in section 1447, Revised Statutes], pro- 
 vides that "all officers whose cases shall have 
 been acted upon by the aforesaid boards and who 
 shall not have been recommended for promotion 
 by both of them, shall be placed upon the retired 
 list." This section plainly contemplates and 
 requires that there shall have been an examina- 
 tion by two boards, and that both shall have 
 failed to recommend an officer for promotion be- 
 fore, in the language of the act, he "shall be 
 placed upon the retired list." One of these 
 boards is a board of naval surgeons, the other is 
 "a board of examining officers, to be appointed 
 by thePresidentof theUnited States." Before, 
 therefore, a medical officer of the Navy is placed 
 on the retired list under the provisions of this 
 act, it should appear that his case has been actod 
 upon by two boards, one of them a board of 
 naval surgeons who passed upon his physical 
 qualifications to perform all his duties at sea, 
 
 the other a board of examining officers senior in 
 rank to him, and appointed by the President, 
 who considered his mental, moral, and pro- 
 fessional fitness to perform his duties at sea, 
 and further it should appear that he was not 
 recommended for promotion by both of such 
 boards. If the fact be that but one board, a 
 board of naval surgeons, has acted upon the 
 cases of certain medical officers, it is not the 
 duty of the department to place them on the 
 retired list. (11 Op. Atty. Gen., 105; see also 
 12 Op. Atty. Gen., 347.) 
 
 Unfavorable report by one board su£B.- 
 cient for retirement. — If the finding of 
 either board is unfavorable, the statute is per- 
 emptory that the officer shall be placed on the 
 retired list. The statute leaves the President 
 no discretion. (Thompson v. U. S., 18 Ct. Cls., 
 604, 611.) 
 
 An officer passed the examination by the 
 board of surgeons and failed to pass the pro- 
 fessional examination. The President ap- 
 proved the finding and placed the officer on 
 the retired list. Having approved the finding, 
 he could not do otherwise than place him there. 
 (Thompson v. U. S., 18 Ct. Cls., 604, 611; see 
 also Da\'is v. U, S., 24 Ct. Cls., 442, noted be- 
 low, under ' ' Officer not mentally, morally, and 
 professionally qualified . " ) 
 
 The Attorney General, in 11 Op. Atty. Gen., 
 105, construed the law embodied in this section 
 as requiring, before the retirement of an officer 
 thereunder, that both the examining board 
 and the medical board shall have reported 
 adversely iipon the candidate's qualifications. 
 However, an examination of the records of 
 officers retired both before and after the date of 
 the Attorney General's opinion discloses that 
 if an officer was found physically, but not 
 professionally, mentally, or morally, qualified 
 and consequently not recommended for promo- 
 tion by the board of examiners, he was placed 
 on the retired list (citing cases of Commodores 
 Ellison, Lockwood, Totten, Glasson; Com- 
 manders Arnold, E. W. Henry, Wm. Gibson, 
 Beaumont; Ensign F. H. Parker; Asst. Pay- 
 master C. E. Boggs; also Capt. T. G. Corbin, 
 Commander E. E. Stone, and Capt. Egbert 
 Thompson). Further, in the cases of officers 
 who were found not physically qualified for 
 promotion, they have been retired under the 
 pro\dsions of section 4 of the act of April 
 21, 1864 (now sec. 1447, R. S.), (citing cases 
 of Capt. Baldwin and Brasher, and Lieut. 
 Commander F. H. Sheppard). Thus the 
 department's practice both before and after the 
 Attorney General's opinion was to retire officers 
 under the act of 1864 when they had been found 
 not qualified by either, and not necessarily by 
 both, boards. (File 26260-874, June 3, 1910.) 
 
 The language of the Court of Claims in the 
 case of Capt. Thompson (18 Ct. Cls., 604, 611) 
 is at variance with that used by the Attorney 
 General, as the court says that ' ' if the finding of 
 either board is unfavorable, the provision in 
 section 4 is peremptory that the officer shall be 
 placed on the retired list." (File 26260-874, 
 June 3, 1910.) 
 
 A commander in the Na\'y who qualified 
 physically, as -n^ll as mentally and morally, 
 but failed professionally, and was not, there- 
 fore, recommended for promotion by the ex- 
 
 695 
 
Sec. 1447. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 aniining board, although so recommended by 
 the meilical board, shoidd be retired under the 
 proNisions of section 1447, Revised Statutes. 
 (File 20260-874, June 3, 1910. Compare file 
 262t)0-l:W2. June 29, 1911, page 5, in Avhich it 
 was remarked that, "if the candidate were 
 found by both the medical and examining 
 boards to be not qualified for promotion, under 
 section 1447 of the Revised Statutes he was to 
 be placed on the retired list.") [See in this con- 
 nection section 1455, Revised Statutes, which 
 refers to the retirement of an officer ' ' on account 
 of his failure to be recommended by an examining 
 board for promotion."] 
 
 Irregularity in proceedings cannot be 
 remedied by courts. — If all the steps taken 
 in the proceedings resulting in the retirement 
 of an officer under this section were not in order 
 and warranted by the statute, the Court of 
 Claims would have no power to review them. 
 (Thompson v. V. S., 18 Ct. Cls., 604, 611.) 
 
 President may revoke approval and 
 Bet aside proceedings for irregularity. — 
 A naval officer ha\'ing appeared before an 
 examining board, organized and conducted 
 under sections 1493-1505, Revised Statutes, and 
 the examination being temporarily suspended, 
 was granted permission to go home and to be 
 absent until notified by the board to appear. 
 He failed to receive this notice until after the 
 examination, which was resumed during his 
 absence, had been concluded. The proceed- 
 ings and findings of the board were approved 
 by the President and his order in the case duly 
 executed by the retirement of the officer under 
 this section, but the vacancy created by such 
 retirement was not filled, and no rights of any 
 other person intervened: Held, that the act 
 of the President could be revoked and the 
 ofiicer allowed a rehearing. (16 Op. Atty. 
 Gen., 20.) 
 
 An officer having been examined by a board 
 of naval surgeons, and placed on the retired 
 list by the Secretary of the Navy, upon the 
 failure of that board to recommend him for 
 promotion, but not having been examined by an 
 "examining board for j)romotion," as required 
 by the law prior to promotion, held, that the 
 President possesses supervisory action over the 
 report of the board of naval surgeons, and may 
 approve or disapprove same, notwithstanding 
 the action of the Secretary of the Navy. (12 
 Op. Atty. Gen., 347.) 
 
 Where the President possesses the power of 
 review, he has the power as a necessary inci- 
 dent to the right of review, if he finds that an 
 officer has not had such an examination as the 
 law declares he shall have, or, in other words, 
 if the proceedings are fatally defective, to treat 
 the proceedings of the board as a nullity and 
 direct an examination in accordance with law. 
 (27 Op. Atty. Gen., 193, 201; see also 27 Op. 
 Atty. Gen., 251. 
 
 \Vhere an officer was found by a board of 
 examination to be physically qualified for 
 promotion, but deficient in professional quali- 
 fications, and it afterwards developed that he 
 was, at the time of his examination, suffering 
 from a disability incurred in the line of duty 
 which disqualified him for -promotion, it is 
 within the power of the Secretary of War, rep- 
 
 resenting the President, to order a new physical 
 examination. (27 Op. Atty. Gen., 193.) 
 
 Difference between examining board 
 for promotion and retiring board. — See 
 21 Op. Atty. Gen., 385, noted under section 
 1448, "Physical examination for promotion 
 not sufficient for retirement." 
 
 Retirement completed by appoint- 
 ment of successor. — The act of placing an 
 officer on the retired list under this section 
 created a vacancy, which the statute [section 
 1458, Revised Statutes] required the President 
 to fill. In obedience to the mandate of the stat- 
 ute, the President nominated to the Senate the 
 ranking commander for promotion to the cap- 
 taincy on the active list thus made vacant; the 
 Senate gaveits constitutional assent thereto, and 
 upon his appointment the new appointee from 
 that moment became one of the limited number 
 of captains authorized by law to be on the active 
 list of the Navy, and his predecessor became 
 one of the captains authorized by law to be 
 on the retired list of the Navy. (Thompson v. 
 U. S., 18 Ct. Cls., 604, 612, citing Blake's Case, 
 103 U. S., 227, noted under the Constitution, 
 Art. II, sec. 2, clause 2, under "VIII. Power of 
 Removal * * * Power of President and 
 Senate.") 
 
 Oflicer can not be restored to active list 
 by President. — See note to section 1465, 
 Revised Statutes. 
 
 Officer not mentally, morally, and pro- 
 fessionally qualified. — ^An officer was found 
 by a retiring board "incapacitated from active 
 service," and such incapacity was "not the 
 result of an incident of the service." He was 
 ordered before another retiring board, which 
 found him not incapacitated for active service. 
 Thereupon he was ordered before an examining 
 board for promotion. This board reported 
 that he had "not the mental, moral, and pro- 
 fessional qualifications to perform efficiently 
 all the duties of a naval officer in a higher grade, 
 and we do not recommend him for promotion." 
 The President approved the proceedings and 
 findings of the examining board, and he was 
 thereupon retired from active service. Held, 
 that the officer was not entitled to a reexamina- 
 tion under section 1505, Revised Statutes, after 
 a period of suspension, but was legally retired 
 as not recommended for promotion. (Davis v. 
 U. S., 24 Ct. Cls., 442. But see note to sec. 
 1456, R. S.) 
 
 Examining board is quasi judicial. — The 
 examining board whose failure to recommend 
 for promotion causes retirement is "quasi 
 judicial." (Thompson v. U. S., 18 Ct. Cls., 
 604, 615.) 
 
 Approval of President required. — The 
 conclusions of any military comt, board, or 
 commission must, before being carried into 
 execution, have the approval of the commander 
 in chief or some one representing him . Accord- 
 ingly, although the law in a particular case 
 may not expressly provide for approval of 
 examining boards in the Army, such boards 
 must receive the approval of the Secretary of 
 War, whose action is conclusively presumed 
 to be that of the President, in order to be valid 
 and effective. It is not, however, essential 
 that this approval should be express or indi- 
 
 596 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1447. 
 
 cated in any formal language. It may be 
 indicated by merely giving effect through ap- 
 propriate orders to the findings of the board. 
 (27 Op. Atty. Gen., 193; see also sec. 1502, 
 K. S, and Jouett v. U. S., 28 Ct.Cls.,266.)_ 
 
 Although the law embodied in this section 
 did not expressly provide for approval by the 
 President of the report made by the board of 
 naval surgeons, he has a supervisory power over 
 the action of such Ijoard and may approve or 
 disapprove same notwithstanding the action 
 taken in the case by the Secretary of the Navy. 
 (12 Op. Atty. Gen., 347.) 
 
 Pay of officer retired because not recom- 
 mended for promotion. — An officer retired 
 because not recommended for promotion, as pro- 
 ^dded by this section, is entitled to half pay, 
 as provided by section 1588, Revised Statutes. 
 (McChu-e V. U. S., 18 Ct. Cls., 347; file 26260- 
 874, June 3, 1910; but see case of Lieut. Frank 
 W. Nichols, noted under sec. 1448, R. S., 
 "Physical examination for promotion not 
 sufficient for retirement.") 
 
 Retirement of officer foiind not morally 
 qualified for promotion. — In the case of 
 Pay Inspector John H. Stevenson, the exam- 
 ining board for promotion reported as follows: 
 "We are satisfied as to the professional abilities 
 of the candidate. His methods of business are 
 shown by the e^'idence to have been loose, 
 reckless, regardless of law, and defiant of 
 orders, but we believe his conduct is not shown 
 to have been influenced by a desire for personal 
 profit, but that, from mental peculiarities or 
 temperament, his moral sense of the obligations 
 of law, orders, and regulations is so obtunded 
 as to render him unfit to conduct the important 
 duties which pertain to the grade in the Navy 
 to which he is a candidate for promotion. 
 In this sense we consider him, as stated below, 
 morally unfit for promotion. We therefore 
 decide that the professional fitness of the 
 candidate to perform the duties of a naval 
 officer at sea and on shore in the next higher 
 grade has been established, but not the mental 
 and moral fitness, and we therefore do not 
 recommend him for promotion." 
 
 In this case, the Judge Advocate General, in 
 his report to the Secretary of the Navy, Septem- 
 ber 11, 1893, stated in part: "The vital ques- 
 tion, therefore, is as to whether or not the 
 disqualifying cause in the case of Mr. Stevenson 
 is a cause ' arising from his own misconduct. ' 
 I am of opinion that such cannot properly be 
 said to be the case, and that, inasmuch as 
 Mr. Stevenson has been found to be both 
 mentally and morally incapacitated, his moral 
 disqualification being the result of his mental 
 incapacity , the state of his mind may properly 
 be considered to be diseased, and, therefore, 
 that the case does not come under the provi- 
 sions of the act of August 5, 1882 [noted under 
 section 1456, Revised Statutes.]. * * * lam 
 of opinion that the provisions of this section 
 [1457, Revised Statutes] properly cover the case 
 of Pay Inspector Stevenson. If retired in ac- 
 cordance therewith, he will receive one-half of 
 the sea pay at the time of his retirement (S2,200) 
 as prescribed by section 1588 of the Revised 
 Statutes." 
 
 The Secretary of the Navy, in his report to 
 the President, September 12, 1893, stated in 
 
 part: " It will be observed that this finding is 
 peculiar. The decision is substantially and 
 formally sufficient. It is that the candidate 
 does not possess the mental and moral fitness 
 required for promotion; the reasons given, 
 however, are that 'from mental peculiarities or 
 temperament his moral sense of the obligations 
 of law, orders, and regulations, is so obtunded 
 as to render him unfit to conduct the important 
 duties which pertain to the grade in the Navy 
 to which he is a candidate for promotion.' 
 Carrying out what seems to be the obvious 
 purpose of this finding, the president of the 
 board, Commodore J. G. Walker, on behalf of 
 the board, called upon me and requested that 
 I should convey to you the wish of the board 
 that Mr. Stevenson should be retired under 
 section 1447 of the Revised Statutes, and not 
 dismissed imder the law of 1882. This request 
 appears to be entirely proper, but the board 
 having found the candidate morally unfit, the 
 question as to whether he should be retired or 
 dismissed seems to be one entii'ely for the 
 decision of the President. The finding of the 
 board is, however, undoubtedly the basis upon 
 which your decision is to be founded. You 
 would not have, as I conceive, the right either 
 to retire or dismiss, unless the board had 
 previously found the unfitness of the candidate. 
 It will be seen from the opinion of the Judge 
 Advocate General of the Navy that he recom- 
 mends the retiring of the candidate upon half 
 pay. and he cites a precedent. I am not in- 
 clined to agree with that opinion, when the 
 board finds that from mental peculiarities or 
 temperament the candidate's moral sense of 
 the obligations of law is so obtunded as to 
 render him unfit for promotion. This seems to 
 be setting up the doctrine of moral insanity, 
 which, as I understand it, the courts have 
 refused to accept as a defense to a criminal 
 charge. * * * Now if it be true that in 
 cases of this character the biu"den of proof is 
 upon a candidate to establish his mental and 
 moral fitness, and if, in this particular case, 
 moral unfitness has been established, then it 
 seems to me that the burden is also upon the 
 candidate to establish that his moral unfitness 
 is not the result of his own misconduct. Can 
 one be morally unfit to perform the duties of an 
 officer and yet not be responsible for such 
 moral unfitness? If a coui't of law in a criminal 
 case would be bound to hold that he is responsi- 
 ble for any conduct arising from such moral 
 obliquity, could it be contended that he is not 
 responsible for the state of moral obliquity into 
 which he has fallen? I fail to see how such a 
 conclusion could be reached and therefore have 
 to recommend that as the candidate has been 
 shown to be morally unfit for promotion he 
 ought to be dismissed under the law of 1882. 
 The precedent cited by the Judge Advocate 
 General seems to be nearly in point. Without 
 undertaking, however, to distinguish between 
 this case and that, it seems to me sufficient to 
 say that such a precedent, if it has been estab- 
 lished, ought not to be followed. It is certainly 
 contrary to the spirit of the law of 1882, as well 
 as to what seems to be sound policy, to lay down 
 as a rule that an officer who is morally unfit for 
 promotion is nevertheless entitled to be paid 
 by the Government as an officer of the Navy 
 
 597 
 
Sec. 1448. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 durinc: the remainder of his natural life. From 
 my readiiiii; of the two statutes on this subject 
 of retirement, above cited, I am of opinion 
 that the theory upon which Congress legislated 
 was that officers who, without fault of their own , 
 were found unfit to continue in active service 
 ought to be provided for by the Government 
 which they faithfully served up to the time of 
 their retirement. I cannot believe that Con- 
 'gress ever intended to continue in the pay of 
 the Government those who are shown to be 
 morally unfit to serve that Government. There 
 is no principle of public policy that could 
 justify such legislation, and I submit the word- 
 ing of the statute does not warrant the conclu- 
 sion that Congress ever intended any such 
 result." 
 
 The President's action in the above case, 
 September 25, 1893, was as follows: "The 
 record, proceedings, and findings of the exam- 
 ining board in the case of Pay Inspector 
 John H. Stevenson, a candidate for promotion, 
 are hereby approved and the said John H. 
 Stevenson is ordered to be placed upon the 
 retired list pursuant to the provisions of section 
 1447 of the Revised Statutes. The retirement 
 of this applicant for promotion is based upon 
 the peculiar findings of the examining board 
 and the exceptional circumstances surrounding 
 the case. The determination reached must not 
 be regarded as a precedent for any similar 
 case that may hereafter arise." 
 
 Compare cases noted under section 1456, 
 Revised Statutes; see also note to section 1448, 
 Revised Statutes. 
 
 Sec. 1448. [Retiring board.] Whenever any officer, on being ordered to per- 
 form the duties appropriate to his commission, reports himself unable to com- 
 ply with such order, or whenever, in the judgment of the President, an officer 
 is incapacitated to perform the duties of his office, the President, at his discre- 
 tion, may direct the Secretary of the Navy to refer the case of such officer to a 
 board of not more than nine nor less than five commissioned officers, two- 
 fifths of whom shall be members of the Medical Corps of the Navy. Said board, 
 except the officers taken from the Medical Corps, shall be composed, as far as 
 may be, of seniors in rank to the officer whose disability is inquired of. — (3 
 Aug., 1861, c. 42, s. 23, v. 12, p. 291.) 
 
 Acting assistant surgeons not eligible for retire- 
 ment under the provisions of this section. 
 (See note to sec. 1411, R. S.) 
 
 For citation of laws relating to retirement of 
 specific classes of officers, see notes to 
 sections 1443 and 1445, Revised Statutes; 
 and see note below, "Retirement of war- 
 rant officers." 
 
 Officers not to be retired without hearing before 
 retiring board, except in certain cases. 
 (See sec. 1455, R. S.) 
 
 Officers not to be retired for misconduct. (See 
 sec. 1456, R. S.) 
 
 Secretary of the Navy may empower com- 
 manding officers on foreign stations to 
 convene retiring boards. (Act Mar. 4, 
 1917, 39 Stat., 1171.) 
 "Physical incapacity" is defined as a 
 
 condition, bodily or mental, which unfits at 
 
 present, or is Likely to unfit in the near future, 
 
 the officer for the performance of his duties. 
 
 (21 Op. Atty. Gen., 387, quoting Circular, War 
 
 Department, Dec. 18, 1890, relating to ex- 
 aminations for promotion; see also sec. 1445, 
 
 R. S., relating to retirement for "physical or 
 
 mental" disability.) 
 
 An oflScer is "permanently incapac- 
 itated" when his disability appears to be 
 
 chronic or of indefinite future duration; his 
 
 disability is designated as "permanent," just 
 
 as an innkeeper distinguishes between "per- 
 manent" from the transients among his guests. 
 
 (21 Op. Atty. Gen., 286.) 
 Officer must be altogether incapable of 
 
 performing his duties, and not merely 
 
 incapable of performing them weU. — The 
 
 incapacity to discharge his duties contemplated 
 
 by the statute [Army retirement law] is not an 
 
 incapacity to discharge them as well as they 
 ought, theoretically, to be discharged or as 
 well as they are discharged by officers generally 
 of the same rank and intrusted with similar 
 duties. The law does not say that he must be 
 incapable of performing his duties well but 
 that he must be incapable of performing them 
 at all, or in other words, he must be unable to 
 so perform them as to reasonably fulfill the 
 purpose of his employment. (27 Op. Atty. 
 Gen., 14.) 
 
 Peculiar mental temperament sufficient 
 basis for retirement. — An officer of the Navy 
 was retired by the President upon the following 
 finding of a retiring board : 
 
 " 1st. That in their judgment the physical 
 condition of Paymaster Robert Burton Rodney 
 is good, but that his peculiar mental tempera- 
 ment incapacitates him from active service in 
 the Navy of the United States. 
 
 "2d. That said temperament of Paymaster 
 Rodney, according to the evidence laid before 
 the board, develops itself in an entire disre- 
 gard of the laws, regulations, customs, and pro- 
 prieties of the service, and has been manifested 
 persistently while said Rodney was attached to 
 the North Atlantic Fleet, in language and con- 
 duct to the subversion of good order and dis- 
 cipline, and proceeds, in the opinion of the 
 board, in part from fanaticism and in part from 
 the groundless belief that he is a victim of per- 
 secution. 
 
 " In the judgment of the board, the inca- 
 pacity of Paymaster Robert Burton Rodney 
 results neither from long and faithful service, 
 from wounds or injury received in the line of 
 duty, from sickness or exposure, or from any 
 other incident of service. 
 
 698 
 
The Navy. 
 
 Ft. 2. REWSED STATUTES. 
 
 Sec. 1448. 
 
 "The board are impressed with the belief 
 that the tendency to misconduct under which 
 Mr. Rodney labors will be re^'ived whenever 
 his association with the Navy shall be renewed. 
 
 " The board are unable to trace the mental 
 incompetency of Pajinaster Rodney to any 
 special cause, but believe it to be inherent, 
 and therefore can only recommend that he be 
 removed from the active list of officers of the 
 Navy." 
 
 The sole objection iirged by Paymaster 
 Rodney against the validity of his retirement 
 iipon the above finding is that it was in \T.ola- 
 tion of the sixth section of the act of July 15, 
 1870, chapter 295 [section 1456, Revised Stat- 
 utes], which forbids the retirement of an officer 
 "because of misconduct." 
 
 The above finding of the board does not 
 ground the incapacity for active ser\-ice upon 
 misconduct, but upon the peculiarity of his 
 mental temperament. His language and con- 
 duct, etc., appear to be assigned only as facts 
 and circumstances indicative of mental con- 
 dition. The circumstances alluded to are a]> 
 parently set forth by the board only as outward 
 manifestations of such temperament. This 
 peculiarity of temperament is described in the 
 last paragraph of the finding as "mental in- 
 competency." 
 
 The Preadent having concurred in the find- 
 ing of the board and thereupon directed the re- 
 tirement of Paymaster Rodney from acti-\-e 
 service, the latter must be deemed to have been 
 placed on the retii-ed list, not because of mis- 
 conduct, but because of incapacity for active 
 service arising from the peculiarity of his men- 
 tal temperament or inherent mental incom- 
 petency, as found by the board. 
 
 The act of August 3, 1861, section 23, chapter 
 42 [now embodied in section 1448, Re\dsed 
 Statutes], provides that whenever in the judg- 
 ment of the President an officer of the Nai-y 
 shall be "in any way," incapacitated from per- 
 forming the duties of his office, etc. The offi- 
 cer's retirement was, upon the facts stated, 
 validlv made under this section. (15 Op. Atty. 
 Gen., 446.) 
 
 An officer of the Navy having been retired 
 for a peculiar mental temperament which in- 
 capacitated him for properly performing duties 
 on the active list, the findings of the retiring 
 board are not subject tore\iew by the account- 
 ing officers, and his retirement was authorized 
 by law. (Dig. Comp. Dec, 493.) 
 
 Compare note to section 1447, Revised Stat- 
 utes, "Retirement of officer found not morally 
 qualified for promotion." 
 
 Temperamental uniitness m.u8t am.ount 
 to actual incapacity or retirement not 
 authorized. — ^The retirement laws, while 
 making no attempt to fix a standard of official 
 usefulness, sound judgment, discretion, or 
 good sense, good habits, agreeableness, good 
 manners, self-control, or courtesy, make one 
 criterion, and one only, for the compulsory 
 retirement of an officer, namely, that he has 
 become incapable of performing the duties of 
 his office. All other subjects of criticism in an 
 officer must be either dealt with in a dis- 
 ciplinary way, or borne with as unfortunate 
 incidents of the service due to imperfect human 
 
 nature. (27 Op. Atty. Gen., 162, afiirming 27 
 Op. Atty. Gen., 14.) 
 
 Retiring boards have nothing to do with 
 such considerations as that the officer would, by 
 seniority, soon become due for promotion, 
 which would place him in a position where his 
 infirmities of temper, disposition, and other- 
 wise, would be of great detriment to the service. 
 Objections to the promotion of an officer con- 
 stitute no ground for retiring him from the 
 office he now holds, unless resulting in the in- 
 capacity contemplated by the law. (27 Op. 
 Atty. Gen., 162, affirming 27 Op. Atty. Gen., 
 14; compare sec. 1447, R. S.) 
 
 Question presented whether an officer of the 
 Army may be retired when found by retiring 
 board to be "permanently incapable of per- 
 forming the duties of his office, such incapacity 
 being temperamental in character, and the re- 
 sult of the operation of * * * mental bias 
 or oversensiti-\-eness of such degree and charac- 
 ter as to render an officer incompetent to ex- 
 ercise sound judgment or discretion, and as to 
 create a marked tendency toward unjustifiably 
 questioning the justice or motives of the acts of 
 his superior officers touching himself person- 
 ally, sometimes carried to an extent bordering 
 on chronic insubordinarion; marked lack of 
 capacity to entertain sound views as to his re- 
 lations and obligations to other persons in the 
 military' service, resulting in a quarrelsome, 
 hypercritical, and querulous disposition." 
 Held, that an important distinction must be 
 observed between actual incapacity and the 
 cause or causes wMch produced it. No officer 
 can be compulsorily retired under these sec- 
 tions [1245-1252, R. S., relating to the Army] 
 because of any or all of the infirmities peculi- 
 arities, or characteristics mentioned. He may 
 have all of these and yet be capable of perform- 
 ing his official duties if he desires to do so; and 
 the law has not said that he may be retired for 
 any of these. But if from these or from any 
 other causes, he has become incapable of per- 
 forming the duties of his office, he may be re- 
 tii-ed for that, but not for the causes which 
 produced the incapacity. (27 Op. Atty 
 Gen., 162.) 
 
 An officer of the Army was found by a retiring 
 board to be "incapable of performing the duties 
 of his office," such incapacity being the result 
 of "iniirniity of temper, of a graduafbut serious 
 loss of self-control, of impatience or irritability 
 while exercising the functions of his office and 
 in dealing with the officers and enlisted men in 
 his command, of physical or mental deteriora- 
 tion due to indolence, excesses in eating and 
 drinking, to impairment of \T.gor, or to indeci- 
 sion and want of alertness in the performance 
 of the duties with which he is habitually 
 charged by law and regulations." Held, that 
 a person ha\ing the infirmities of temper and 
 the mental and bodily characteristics described, 
 might readily be a veiy imdesii-able superior, 
 colleague, or subordinate, and might severely 
 tax the patience of other members of the serv- 
 ice necessarily brought into contact with him 
 in the discharge of "their military duties, but 
 it would not follow from these facta that he was 
 incapable of discharging his duties. A more 
 reasonable inference would be, perhaps, that 
 
 699 
 
Sec. 1448. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 he was unwilling to discharge them properly, 
 and therefore that he was a suitable subject for 
 the appropriate military discipline. Of course, 
 if a process of mental deterioration, due to the 
 causes above-mentioned, had culminated in a 
 mild form of insanity or if excessive self-indul- 
 gence and disregard of the laws of health have 
 produced such maladies as make it impossible for 
 the officer properly to discharge his duties, the 
 incapacity justifying his retirement would exist 
 and the causes leading to such incapacity would 
 be immaterial [compare, section 1456, Revised 
 Statutes]; but except in so extreme a case, the 
 officer midit have all the infirmities and un- 
 desirable nabits mentioned, and yet not be 
 incapable of dischai-ging his duties in the sense 
 contemplated by the law as justifying his 
 retirement. (27 Op. Atty. Gen., 17.) 
 
 An officer of the ;Marine Corps was ioxmd 
 "incapacitated for active service by reason of 
 excessive nervous irritability, and that his 
 incapacity is the result of an incident of the 
 ser^•ice." The finding of the board was disap- 
 proved by the President, upon recommendation 
 of the Secretary of the Navy, who stated: "The 
 report of the board does not show a finding of 
 insanity or even of neurasthenia, but refers to 
 this officer as incapacitated by reason of 'ex- 
 cessive nervous ii-ritability.' There is no evi- 
 dence in the record of any specific injury. The 
 department considers that the retii'ement of so 
 young an officer in the line of duty for the 
 reason given by the board in this case would be 
 an abuse of the liberal retii-ement privileges 
 which Congress intended primarily for those 
 either injured in the line of duty or w^ho, by 
 reason of long and faithful service, are entitled 
 to especial consideration." (File 26253-256, 
 Jan. 9, 1913. As to retirement of Marine offi- 
 cers, see sec. 1622, R. S.) 
 
 Actual incapacity only test; cause 
 not important except incidentally. — The 
 grounds for compulsory retirement should be 
 confined to cases of actual inability to perform 
 the duties of the office, no matter what the cause 
 of the inability. (27 Op. Atty. Gen., 162.) 
 
 It is with the actual incapacity of the officer 
 that these sections [1245-1252, Revised Stat- 
 utes, relating to Army] deal, and not with its 
 cause or causes, except in determining what 
 shall be done in case the officer is found 
 incapacitated. (27 Op. Atty. Gen., 162.) 
 
 An officer, found by a retiring^ board duly 
 organized and convened to be "incapable of 
 performing the duties of his office, ' ' may be and 
 ought to be retired in accordance wdth the pro- 
 visions of sections 1245-1252, ReAdsed Statutes, 
 without regard to the causes which may have 
 led to eucn incapacity on his part; but to be 
 "incapable " in the language of the law he must 
 be either no longer responsible for his own 
 actions or subject to infirmities or disabilities 
 which make the reasonable fulfillment of his 
 military duties impossible for him, notwith- 
 standing an earnest desire and firm pm-pose on 
 his part to fully discharge them. (27 Op. Atty. 
 Gen., 14.) 
 
 An officer of the Army could not be legally 
 retired under the provisions of law because he 
 frequently or even habitually became intoxi- 
 cated, although such intoxication might, while 
 it lasted, incapacitate him to discharge his 
 
 duties; instead, he would be properly subject 
 to the pimishment prescribed by military law 
 as administered by coiu"ts-martial. If, how- 
 ever, as a result of such excess, his bodily and 
 mental faculties had become seriously and per- 
 manently impaired, then, even if the habits of 
 intemperance had ceased, he would be properly 
 subject to retii-ement under the pro\T.sions of 
 section 1252, Revised Statutes. (27 Op. Atty. 
 Gen., 14.) 
 
 It has been held by the War Department that 
 an oflicer may legally be retired by reason of an 
 incapacity resulting from habitual drunkenness; 
 that the law contemplated an existing and not a 
 piirely prospective and contingent incapacity; 
 and that an inquiry into an officer's general 
 efficiency could be pertinent only in so far as it 
 could be regarded as going to show that his inef- 
 ficiency, if found, was the result of an impair- 
 ment of health; that the cause of incapacity 
 intended in section 1249, Re\ised Statutes, was 
 a physical cause, that moral obliquity was not 
 had in view, and that the matter of financial 
 integrity of the officer was beyond the jurisdic- 
 tion of the board; accordingly, that the board 
 was not authorized to recommend the retire- 
 ment of an officer because he did not pay his 
 debts; and that the inability of a disbursing 
 officer to furnish a bond when duly required to 
 do so was not sufficient ground for his retire- 
 ment. These opinions of the War Department 
 are consistent with the principles which must 
 determine when an officer is incapable of per- 
 forming the duties of his office within the mean- 
 ing of the retiring law. (27 Op. Atty. Gen., 
 14.) 
 
 Composition of board. — The intent of the 
 act is to cause disabled officers to be retired by 
 a board composed of commissioned officers of 
 their own branch of the service. The clause 
 which requires that the board, except those 
 taken from the medical staff, shall be composed 
 as far as may be, of officers "senior in rank "' to 
 the officer whose disability is to be tried, im- 
 plies that the board is to consist of commissioned 
 officers in his own line of service; for an officer 
 of one branch of service can not with accuracy 
 be called senior in rank to an officer of another 
 branch. A major in the Army is no more senior 
 to a captain of Marines than he is to a captain in 
 the Navy. The term in its military sense is 
 applicable only to relatively higher grades of 
 the same service, and its use othei-wise would 
 create confusion. (10 Op. Atty. Gen., 116, 
 holding that the act of Aug. 3, 1861, sec. 17, 
 chap. 42, does not authorize the Secretary of 
 War or the Secretary of the Navy to assemble a 
 mixed board of Army and Marine officers for 
 inquiry into the cases of disabled officers of the 
 Army and of the Marine Corps; that the Marine 
 Corps is at all times subject to the laws and reg- 
 ulations established for the better government 
 of the Navy, except when detached for service 
 with the Army; and, accordingly, that the 
 medical officers of any board assembled by the 
 Secretary of the Navy to inquire into the cases 
 of disabled Marine officers must be taken from 
 the surgeons of the Navy. See sec. 1623, R. S., 
 as to composition of retiring boards for Marine 
 officers; and see in this connection Brown v. 
 U. S., 41 Ct. Cls., 275, affirmed 206 U. S., 
 240.) 
 
 600 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1448. 
 
 Officer to be ordered before retiring 
 board immediately upon development of 
 incapacity. — ''When any officer on the active 
 list becomes physically incapacitated to per- 
 form the duties of his office, and the probable 
 fiiture duration of such incapacity is permanent 
 or indefinite, he will immediately be ordered 
 before a retiring board, and, pending final 
 action upon the question of his retirement, will 
 not be examined for promotion. The fore- 
 going shall not apply to the case of an officer 
 whose physical incapacity develops after he 
 has become due for promotion, and who may, 
 under such circumstances, be examined phys- 
 ically by a board of medical examiners before 
 being ordered before a retiring board. ' ' (Naval 
 Courts and Boards, 1917, sec. 679, superseding 
 Art. R-331 (5), Navy Regs., 1913, C. N. R. 7, 
 Sept. 15, 1916.) 
 
 Physical examination for promotion 
 not sufficient for retirement. — An officer 
 of the Army was examined for promotion and 
 found incapacitated for active service on ac- 
 count of certain physical disabilities; this 
 finding was approved by the Surgeon General 
 and by the Major General Commanding the 
 Army, and by the Acting Secretary of War. 
 The officer was thereupon notified that he 
 would be retired at the proper time, and was 
 granted sick leave of absence until further 
 orders. Thereafter he applied for reexamina- 
 tion, and the action of the Acting Secretary of 
 War approving the finding of the examining 
 board was canceled by the Secretary of War. 
 It was contended that the examination when 
 approved by the Acting Secretary of War be- 
 came final and conclusive, and that no power 
 or authority existed in the Secretary of W^ar 
 to direct or permit a reexamination, as the act 
 of October 1, 1890 (26 Stat., 562), provides with 
 reference to the examination of Army officers 
 for promotion "that should an officer fail in 
 his physical examination and be found inca- 
 pacitated for service by reason of physical dis- 
 ability contracted in line of duty, he shall be 
 retired with the rank to which his seniority entitled 
 him to be promoted." Held, this act was not 
 intended to provide for the retirement of offi- 
 cers from the Army, but merely to fix the rank 
 of officers and regulate promotions. The phrase 
 italicized plainly is not a mandatory provision 
 for the retirement of the disabled officer, but 
 for the purpose of fixing the rank with which 
 he should be retired. (21 Op. Atty. Gen., 385.) 
 
 Under the laws [sections 1250, 1251] regulating 
 retirements in the Army, no officer can be 
 retired from the Army upon the report of any 
 board, even if such report be approved by the 
 Secretary of War, except it '"is approved by 
 the President." (21 Op. Atty. Gen., 385.) 
 
 It is true that the physical examination of 
 an officer who is under examination for promo- 
 tion may be the same in its character and 
 extent as the physical examination of an officer 
 who is under examination for retirement. 
 Nevertheless, a board constituted as a board of 
 examination for promotion can not be invested 
 with the power of a retiring board, which the 
 law requires to be differently constituted. 
 (21 Op. Atty. Gen., 385.) 
 
 The physical examination to which the 
 officer was subjected in the above-mentioned 
 
 case was not such an examination as required 
 by law for the retirement of an officer from 
 active service; and he may be allowed a re- 
 examination bv the Secretarv of War. (21 Op. 
 Atty. Gen., 385.) 
 
 The officer was notified that he would be 
 retired at the proper time; but he could not 
 be retired without the approval of the Presi- 
 dent; and even if the action of the examining 
 board were to be regarded and treated as that 
 of a retiring board, still it would be inoperative 
 to effect his retirement until approved by the 
 President. (21 Op. Atty. Gen., 385.) 
 
 The Attorney General's opinion (21 Op. 
 Atty. Gen., 385) applies with equal force to the 
 provisions in the act of March 4, 1911 (36 Stat., 
 1267,) with reference to rank on retirement of 
 officers of the Navy who fail physically for 
 promotion. Accordingly, in such case, the 
 officer should be ordered before a naval retiring 
 board and to transfer him to the retired list 
 without such further examination would be 
 without authority of law. (File 26260-1732:1, 
 Apr. 25, 1912.) The clause in the Navy law 
 of March 4, 1911, is substantially the same as the 
 pro\'ision in the Army act of October 1, 1890 
 (26 Stat., 562), and should be construed in con- 
 nection with the precedents established in 
 the Army during the twenty years that its 
 statute was in force prior to the enactment of 
 similar legislation for the Navy. (File 26253- 
 200:1, Feb. 17, 1912.) 
 
 Under the act of October 1, 1890 (26 Stat., 562, 
 sec. 3), providing that an Army officer who 
 fails in his physical examination for promotion 
 by reason of disability contracted in line of 
 duty "shall be retired with the rank to which 
 his seniority entitled him to be promoted," 
 held that an Army officer who was not exam- 
 ined for promotion but was f ound by a retiring 
 board incapacitated in line of duty, wliich 
 finding was approved by the President, was 
 entitled to the retired pay of the next higher 
 rank, although the War Department refused 
 to recognize him as holding that rank. "It 
 seems to the court that the finding of the retir- 
 ing board is the necessary equivalent of the 
 only finding that could have been made by 
 the board for promotion." (Cloud v. U. S., 
 43 Ct. Cls., 69.) 
 
 An officer was found mentally but not 
 physically, morally, or professionally quali- 
 fied for promotion. The President's action, 
 June 21, 1894, was as follows: "The findings of 
 the boards in this case are disapproved, except 
 the report and findings of the board of medical 
 examiners dated April 2, 1894, which are hereby 
 approved, and it appearing that the disability 
 of Lieutenant Frank W. Nichols is due to sick- 
 ness incurred in the line of duty, he is retired 
 ^\'ith seventy-five per cent of the sea pay of the 
 rank now held by liim." (But see note to 
 sec. 1447, R. S., "Pay of officer retired because 
 not recommended for promotion.") 
 
 Compare cases noted under section 1447, 
 Revised Statutes. 
 
 Irregularity in proceedings. — After a 
 retired naval officer has, during the remainder 
 of his life, acquiesced in the proceedings of the 
 retiring board, it does not Lie ^vdth liis adminis- 
 tratrix to object to them for a mere irregu- 
 larity. (Brown v. U. S., 113 U. S., 568.) 
 
 601 
 
Sec. 1448. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 The action of a board organized under the 
 act of 1861 can only be valid as it accords with 
 the law of its creation. From that law alone 
 it must draw the breath of life. If, therefore, 
 it is constituted without the direct authority 
 of that law or In \'iolation of its pro\'isions the 
 validity of its action would be open to very 
 serious future question. (10 Op. Atty. Gen., 
 116.) 
 
 See also Thompson v. U. S. (18 Ct. Cls., 604, 
 611), noted under section 1447, Revised Statutes. 
 
 Retirement for disability a "benefit" 
 to officers.— The act of June 24, 1910 (36 Stat., 
 600 ), pro\aded that "all paymasters' clerks 
 shall, while holding appointment in accord- 
 ance with law, receive the same pay and 
 allowances and have the same rights of retire- 
 ment as warrant officers of like length of service 
 in the Navy. " If a paymaster's clerk is subject 
 to retirement for physical disability it must be 
 because this provision has so extended section 
 1453, Re\ased Statutes, as to make it applicable 
 to paymasters' clerks. Held that retirement 
 for physical disability is one of the "rights" 
 of retirement extended to paymasters' clerks 
 by this statute and accordingly that a pay- 
 master's clerk is entitled to be retired under 
 the provisions of section 1453, Revised Statutes 
 (28 Op. Atty. Gen., 417.) 
 
 It can not correctly be said that section 
 1453 pro\'ides for a compulsory retirement and 
 therefore is not extended to paymasters' clerks 
 under the provisions giving them the "rights" 
 of retirement possessed by warrant officers. 
 It is both the right and the peremptory duty 
 of the Government to retire an officer under 
 the conditions mentioned in section 1453. 
 On the other hand, it is the right of the officer 
 to be retired under the same conditions. 
 Whether retirement may be beneficial to him 
 or not has notiiing to do with his right of retire- 
 ment and can only influence his determination 
 as to whether or not he will enforce his right 
 should the Government refuse or fail to carry 
 out the mandate of the law. (28 Op. Atty. 
 Gen., 417.) 
 
 It is conceded that section 1453, Revised 
 Statutes, would be very beneficial to paymas- 
 ters' clerks, much more so, in fact, than to 
 warrant officers, because, if incapacitated for 
 service, their appointments may be revoked 
 and they be dismissed from the service, which 
 can not be done with a warrant officer. That 
 such course would be pursued goes without 
 saying, as the Na\^ Department can not rely 
 upon the labor of those who are wholly incapaci- 
 tated for service. Therefore the protection 
 and benefit of section 1453 ought to be extended 
 to these diseased and helpless officials if any 
 reasonable interpretation of the act of June 
 24, 1910, will permit this to be done. (28 Op. 
 Atty. Gen., 417.) 
 
 That retirement for disability under this 
 section is "compulsory," see 27 Op Atty 
 Gen., 162, 164, 166. 
 
 As to retirement of pav clerks in the Navy, 
 see act of March 3, 1915(38 Stat., 942); and see 
 note to section 1386, Re\'i8ed Statutes. 
 
 Retirement of warrant officers. — A war- 
 rant officer was retired on furlough pay, for dis- 
 ability not incident to the service (see sec. 
 1454, R. S.); he acquiesced in such retirement, 
 and drew retired pay thereunder until his 
 death. Thereafter his widow brought suit 
 against the United States to recover the differ- 
 ence between retired pay and active-duty pay 
 on the ground that his retirement was illegal, 
 there being no law providing for the retirement 
 of warrant officers on account of physical dis- 
 ability, and the act of August 3, 1861, section 
 23 (12 Stat., 291) [now embodied in section 1448, 
 Revised Statutes], being claimed to apply only 
 to commissioned officers. "It must be con- 
 ceded that were the question a new one, the 
 true construction of the section would be open 
 to doubt. But the findings of the Court of 
 Claims shf)W that soon after the enactment of 
 the act the President and the Navy Department 
 construed the section to include warrant as well 
 as commissioned officers and they have since 
 that time imiformly adhered to that construc- 
 tion, and that under its provisions large 
 numbers of warrant officers have been retired. 
 This contemporaneous and uniform interpreta- 
 tion is entitled to weight in the construction of 
 the law and in a case of doubt ought to turn the 
 scale" (citing Edwards v. Darby, 12 \Mieat., 
 206; Atkins v. Disintegrating Co., 18 Wall., 272, 
 301; Smythe v. Fiske, 23 Wall., 374, 382; U. S. 
 V. Pugh; 99 U. S., 265; U. S. v. Moore, 95 U. S., 
 760, 763; U. S. -y. State Bank of North Carolina, 
 6 Pet., 29; U. S. v. Alexander, 12 Wall., 177; 
 Peabody v. Stark, 16 Wall., 240; and Hahn v. 
 U. S., 107 U. S., 402). "These authorities 
 justify us in adhering to the construction of the 
 law under consideration adopted by the 
 executive department of the Government, and 
 are conclusive against the contention of appel- 
 lant, that section 23 of the act of August 3, 1861, 
 did not apply to warrant officers." (Brown v. 
 U. S., 113 U. S., 568, afiirming 18 Ct. Cls., 537.) 
 
 Pajmiasters' clerks, in reference to retire- 
 ment are placed in preciselv th.e same condition 
 by the act of June 24, 1910 (36 Stat., 606), as 
 warrant officers, and are entitled to be retired 
 under the provisions of section 1453, Revised 
 Statutes. (280p. Atty. Gen., 417. See above, 
 "Retirement for disability a 'benefit' to offi- 
 cers." Pay clerks are now warrant officers in 
 the Navy by the terms of act Mar. 3, 1915, 
 38 Stat., 942.) 
 
 Dental surgeons, probationary. — The 
 provisions of this section have been adminis- 
 tratively applied to a dental surgeon appointed 
 by the President with the advice and consent 
 of the Senate, under the act of August 29, 1916 
 (39 Stat., 573), while serving his probationary 
 period of two years as required by said act, 
 which further provided that such appoint- 
 ments "may be revoked at any time during 
 the probationary period by the President." 
 (See file 26253-550, Feb. 18, 1918; see also note 
 to sec. 1454, R. S.) 
 
 Acting chaplains who fail physically upon 
 examination for appointment as chaplains are 
 not eligible for retirement. (File 15721-22:1, 
 Mar. 8, 1922. 
 
 602 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1451. 
 
 Sec. 1449. [Powers and duties of retiring board.] Said retiring-board shall 
 be authorized to inquire into and determine the facts touching the nature and 
 occasion of the disability of any such officer, and shall have such powers of a 
 court-martial and of a court of inquiry as may be necessary. — (3 Aug., 1861, 
 c. 42, s. 17, V. 12, p. 290.) 
 
 Courts-martial have power to administer oaths 
 to witnesses (sec. 1624, R. S., art. 41), to 
 imprison witnesses for contempts (sec. 
 1624, R. S., art. 42), to compel attendance 
 of civilian witnesses (act Feb. 16, 1909, 
 sec. 11, 35 Stat., 621), to institute proceed- 
 ings in civil courts against witnesses who 
 refuse to appear or testify (act Feb. 16, 
 1909, sec. 12, 35 Stat., 622), and to receive 
 depositions in evidence (act Feb. 16, 
 1909, sec. 16, 35 Stat., 622). 
 
 "Courts of inquiry shall have power to sum- 
 mon witnesses, administer oaths, and pun- 
 ish contempts, in the same manner as 
 coiu-ts-martial." (Sec. 1624, R. S., art. 57.) 
 
 In trials by court-martial and proceedings be- 
 fore courts of inquiry, the accused or per- 
 son charged "shall, at his own request but 
 not otherwise, be a competent witness." 
 (Act Mar. IG, 1878, 20 Stat., 30; Naval 
 Courts and Boards, 1917, sec. 512.) 
 
 It is provided by statute with reference to 
 naval general coiuts-martial and courts of 
 inquiry, "that no witness shall be com- 
 pelled to incriminate liimself or to answer 
 any question which may tend to incrim- 
 inate or degrade him." (Act Feb. 16, 
 1909, sec. 12, 35 Stat., 622. See note to 
 Constitution, fifth amendment, under "III. 
 Compelling person to be witness against 
 himself.") 
 
 Sec. 1460. [Oath of members, retiring board.] The members of said board 
 shaU be sworn in each case to discharge their duties honestly and impartially. 
 — (3 Aug., 1861, c. 42, s. 23, v. 12, p. 291.) 
 
 On general subject of persons in the Na\y authorized to administer oaths, see section 183, 
 Revised Statutes, and note thereto. 
 
 Sec. 1451. [Findings of retiring board, cause of incapacity.] When said 
 retiring-board finds an officer incapacitated for active service, it shall also find 
 and report the cause which, in its judgment, produced his incapacity, and 
 whether such cause is an incident of the service. — (3 Aug., 1861, c. 42, s. 23, 
 V. 12, p. 291.) 
 
 Incident of service. — Section 1249, Revised 
 Statutes, relating to the Army, is similar to 
 the above section, requiring Army retiring 
 boards to report whether the cause of dis- 
 ability is "an incident of service." Simi- 
 lar provisions are also contained in the act 
 of April 12, 1902, section 5 (32 Stat., 100), 
 relating to retirement of officers in the 
 Revenue Cutter Service (now Coast Guard.) 
 
 Line of duty. — Section 1494, Revised Statutes, 
 provides for the promotion of an oflicer 
 failing physically upon examination for 
 promotion, where such physical disqualifi- 
 cation was occasioned by wounds received 
 "in the line of his duty," and does not 
 incapacitate him for other than sea duty. 
 The act March 4, 1911 (36 Stat., 12G7), pro- 
 vides for the rank on retirement of an 
 officer who fails upon examination for pro- 
 motion by reason of physical disability 
 contracted "in the line of duty." The 
 act of May 22, 1917, section 9 (40 Stat., 86), 
 provides for retirement of officers of Navy 
 and Marine Corps, temporarily appointed 
 or promoted, for physical disability in- 
 curred "in line of duty." The act of June 
 4, 1920 (41 Stat., 834), provides for retire- 
 ment of officers of the Naval Reserve Force 
 and temporary officers of the Na\'y for 
 disability incurred ' ' in line of duty . ' ' Sec- 
 tion 1588, Revised Statutes, provides for 
 
 the pay of officers retired on account of in- 
 capacity residting from wounds or injuries 
 received " in the line of duty ," or from sick- 
 ness or exposure "therein." The pension 
 laws provide for payment of pension in 
 cases of disability, by reason of any wound 
 or injury received, or disease contracted, 
 while in the ser\dce of the United States 
 and "in the line of duty" (sec. 4693, R. S.; 
 see also sees. 4697, 4698, R. S. ; act Jidy 
 14, 1892, 27 Stat., 149; act Apr. 8, 1904, 
 33 Stat., 163, etc.) The War Risk Insur- 
 ance Act of October 6, 1917, section 300 
 (40 Stat., 405), as amended by act of Jime 
 25, 1918 (40 Stat., 609), pro\'ides compen- 
 sation for death or disability "Resulting 
 from personal injury suffered or disease 
 contracted 'in the line of duty * * * 
 but no compensation shall be paid if the 
 injury or disease has been caused by his 
 own willful misconduct." Section 1754, 
 Revised Statutes, prefers for civil appoint- 
 ment persons disabled in the military or 
 naval ser\dce "in the line of duty." 
 Not misconduct.— Act of May 13, 1908 (35 Stat., 
 128), proAided for payment of gi-atuity to 
 dependents, upon death of any officer or 
 enlisted man on the active list of the Na\y 
 or Marine Corps, from wounds or disease 
 contracted "in line of duty." This was 
 amended by act of August 22, 1912 (37 Stat., 
 
 54641°— 22- 
 
 -39 
 
 603 
 
Sec. 1451. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 329), providing for payment of gratuity 
 where the death was from wounds or dis- 
 ease "not the result of his own miscon- 
 duct." (The act last cited was repealed by 
 act Oct. G, 1917, sec. 312, 40 Stat., 408. and 
 reenacted A\'ith amendments by act of 
 June 4, 1920, 41 Stat., 824). The act of 
 August 29, 1916, as amended by act of 
 July 1, 1918, pro\'ided for ^nthholding pay 
 in cases of ofiicers or enlisted men absent 
 from duty, because of injiiry, sickness or 
 disease resulting from "misconduct." (39 
 Stat., 580; 40 Stat., 717.) Section 1456, 
 Revised Statutes, ])rohibits the retirement 
 of officers " because of misconduct." The 
 act of Aiigust 5, 1882 (22 Stat., 286), pro- 
 hibits retirement of officers imfit for sea 
 duty by reason of dnmkenness. or from any 
 cause arising from "his own misconduct." 
 Sections 4756 and 4757, Re\-ised Statutes, 
 pro^■ide for payment from Na\y pension 
 fund to persons discharged from the NaA^ 
 other than for "misconduct." 
 •Failure of board to report cause of 
 incapacity. — The report of the board that there 
 was no evidence that the officer's incapacity 
 was the result of any incident of the service, 
 "is to all intents and purposes a report that the 
 incapacitj'' was not the result of an incident of 
 the service, and justifies an order retiring the 
 officer on furlough pay." (Brown v. U. S., 
 113 U. S., 568, 573.). 
 
 Effect of oflB.cer's acquiescence in irreg- 
 ularity of board's proceedings. — "If there 
 had been any irregularity or defect in the re- 
 port of the board, it was the duty of Brown to 
 object to it without unreasonable delay. After 
 his acquiescence in the proceedings during the 
 remainder of his Ufe, it does not he with his ad- 
 ministratrix to object to them, even for a sub- 
 stantial defect, much less for such an irregu- 
 larity, if it be an irregularity, as is set up in 
 this case. Our opinion is, therefore, that the 
 order of the President retiring Brown was au- 
 thorized by law, and was regular and valid." 
 (Brown v. U. S., 113 U. S., 568, 573.) 
 
 Surplusage in board's finding is of no 
 legal effect.— Section 3 of the act of February 
 21, 1861, provided for the retirement of medi- 
 cal officers "permanently incapable, from 
 physical or mental infirmity, of further ser\dce 
 at sea," to receive "leave of absence pay." 
 A medical officer was retired in 1861 imder 
 said law for disability which "did not occur iia 
 the line of liis duty." Under the provisions of 
 this law, it was immaterial whether the in- 
 firmity of the officer originated in line of duty 
 or not. Hence, in so far as the cause for re- 
 tirement thereunder is concerned, the state- 
 ment of the board of 1861 that it did not occur 
 in the line of duty, must be deemed to be 
 mere surplusage. An allegation of error in 
 such statement, therefore, furnished no ground 
 for reexamination of his case, if indeed a re- 
 examination could have been had on any 
 ground after his retirement. (17 Op. Atty. 
 Gen., 178.) 
 
 The act of March 3, 1873 (sec. 1588, R. S.), 
 provided 75 per cent of sea pay for officera re- 
 tired for disability incurred in the line of duty. 
 In 1878 the officer mentioned in the preceding 
 paragraph made application for a further ex- 
 
 amination of his case, based on new evidence 
 tending to show, as lie alleged, that the opinion 
 of the board as to the cause of his disability was 
 erroneous. Thereupon the Secretary of the 
 Na^■y ordered a new board, which found that 
 his disability "had its origin in the line of 
 duty." This finding was, on January 1, 1879, 
 approved by the Secretary of the Navy. Held, 
 that the Secretary of the Navy was not author- 
 ized by law to submit the case of this officer to 
 a medical board for reexamination as to the 
 origin of the disability for which he was re- 
 tired, and that the Secretary's decision based 
 on the report of that board is without anj^ legal 
 effect as regards the cause for retirement in the 
 case of said officer or his right to pay. (17 Op. 
 Atty. Gen., 178.) 
 
 By act of August 3, 1861, Congress made new 
 and enlarged provisions for the retirement of 
 naval officers, both of the line and staff. These 
 provisions superseded all others previously in 
 force, but had no applicatiou to officers already 
 retired under former laws. This statute di- 
 ^'ided the causes for retirement into two classes. 
 The proAdsions of the act of August 3, 1861, are 
 reproduced in sections 1448-1455, Revised 
 Statutes. The retiring board under this latter 
 law was authorized to inquire into the dis- 
 ability only of officers of the active list. There 
 is no provision authorizing the case of an officer 
 retired under the act of February 21, 1861, to 
 be investigated by a board with a -view to de- 
 termining the cause of his retirement. A rein- 
 vestigation of such case without authority of 
 Congress could not be made the basis of any 
 change in regard to the cause of the officer's re- 
 tirement, nor confer upon him any rights to 
 which he would not otherwise be entitled. 
 (17 Op. Attv. Gen., 178.) 
 
 The acts of July 15, 1870, and March 3, 
 1873 (sec. 1588, R. S.), pro\'ided 75 per cent of 
 sea pay for certain classes of retired officers, 
 and provided that "the pay of all other officers 
 on the retired list" shall be one-half sea pay. 
 This latter phrase is broad enough to include 
 officers retired under the act of February 21, 
 1861. (17 Op. Atty. Gen., 178.) 
 
 Finding made under a misconstruction 
 of the law. — An opinion and recommendation 
 of an examining board made imder a miscon- 
 struction of the law can not control distmct 
 statutory provisions, and accordmgly the re- 
 tirement of an officer in accordance with such 
 erroneous finding may be corrected by the 
 President. (17 5p. Atty. Gen., 7.) 
 
 Reconsideration of finding by board of 
 its own initiative. — Where a naval retiring 
 board convened to inquire into the nature and 
 cause of the disability of an officer has once 
 finished its work, rendered a complete judg- 
 ment in the case, and adjourned, a subsequent 
 reconsideration of its judgment by the board, 
 unless authorized or directed by proper au- 
 thority, can have no legal effect. Accordingly, 
 upon examination of tlie record of the proceed- 
 ings before a naval retiring board in the case of 
 Paymaster Rodney, held, that the paper at- 
 tached to the record, called a reconsideration 
 of the finding of the board, was without legal 
 effect, and that the officer was properly retired 
 under the original finding of the board on 
 furlough pay. (16 Op. Atty. Gen., 104.) 
 
 604 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1451. 
 
 Findings not subject to review by 
 accounting ofla.cers. — An officer of the Navy 
 having been retired for a peculiar mental tem- 
 perament which incapacitated him for properly 
 performing duties on the active list, the find- 
 ings of the retiring board are not subject to re- 
 view by the accounting officers, and his retire- 
 ment was authorized by law. (Dig. Comp. 
 Dec, 493.) 
 
 "Incident of the Service" and "Line of 
 Duty" compaeed. 
 
 "Incident of the service" synonymous 
 with "hne of duty." — [It will be noted from 
 the laws cited above that while section 145], 
 Revised Statutes, requires retiring boards to 
 report whether an officer's incapacity resulted 
 from "an incident of the service," section 1588, 
 Revised Statutes, in prescribing the rate of 
 retired pay speaks of officers retired for dis- 
 abilities incurred "in the line of duty," the act 
 of March 4, 1911, provides increased rank for 
 officers retired in certain cases by reason of 
 disability contracted * ' in the line of duty, ' ' and 
 tlie act of May 22, 1917, speaks of retirement of 
 officers for physical disability incurred "in line 
 of duty." These statutes obviously use the 
 words "incident of the service," and "line of 
 duty," as synonymous terms. That they have 
 been so regarded in the past is shown by records 
 of naval retiring boards which have frequently 
 reported the disability of officers as having been 
 incurred in the "line of duty" instead of using 
 the statutory phrase, "incident of the service." 
 In the decisions of the courts and law officers 
 of the Government such reports of retiring 
 boards have been accepted without questioning 
 their compliance with the statute. For exam- 
 ple, in the case of Biuchard v. United States 
 (19 Ct. Cls., 137; 125 U. S., 176) the retiring 
 board reported the officer "incapacitated for 
 duty by disability which did not originate in 
 the line of duty," which report was approved 
 by the President and held by the courts not 
 subject to be changed either by the Secretary 
 of the Navy, by the President, or by Congress, 
 although the q^uestion of terminology was not 
 considered. Similarly, in the case of Potts v. 
 United States (125 U. S., 176), the board re- 
 ported that the incapacity of the officer did not 
 " originate in the line of duty, ' ' and it was held 
 by the courts that this report, having been duly 
 approved, could not afterwards be changed to 
 make the cause of the officer's retirement "the 
 result of an incident of the service." To the 
 same effect, see 27 Op. Atty. Gen., 221. So 
 also, in the case of Morse v. United States (229 
 U.S., 208), the report of the board was that the 
 incapacity did not originate "in the line of 
 duty"; see also, 15 Comp. Dec, 584. These 
 and many other cases show that in practice the 
 terms "incident of the service" and "line of 
 duty," have been used interchangeably by 
 naval retiring boards, as well as by Congress, 
 although at the present time these boards in 
 their reports are requii-ed to conform to the 
 statutory language in cases under this section, 
 and report whether or not the disability is 
 caused by "an incident of the service." (See 
 Naval Courts and Boards, 1917, p. 461.) How- 
 ever, the same publication (p. 316) states that 
 
 the phrase "line of duty" should be construed 
 as haAdng the same meaning with "incident of 
 the service." In the Army the decision upon 
 this point is as follows: "The phrases 'in line of 
 duty' and 'incident of the service,' while not 
 synonymous, are not widely separate in mean- 
 ing. Held, that the efficient execution of a 
 statute involving the one would give reasonable 
 operation to the other. In other words, the 
 several 'incidents' which go to make up the 
 daily or yearly routine of military service 
 constitute, when added together, the 'line of 
 duty' which is contemplated in the pension 
 laws, and no public interest will suffer if either 
 understanding be applied by a retiring board 
 in the determination of a particular case." 
 (Army Dig., 1912, p. 986 c.) Definitions and 
 illustrations of "line of duty" would in view 
 of the above seem equally applicable to "inci- 
 dent of the service " imder this section.] 
 
 "line of duty" defined. 
 
 Intention of Congress. — The question of 
 what constitutes "line of duty" within the 
 meaning of the pension laws was exhaustively 
 considered and authoritatively construed by 
 Attorney General Cushing in 1855 (7 Op. Atty. 
 Gen., 149, noted below). The fact that after 
 this construction Congress has retained this 
 expression for more than forty years, although it 
 has repeatedly revised and amended the pen- 
 sion laws, amounts to a demonstration that Mr. 
 Cusliing properly interpreted its meaning. 
 (Rhodes v. U. S., 79 Fed. Rep., 740.) 
 
 The phrase, "in the line of duty," has been 
 uniformly used in the statutes from 1799 to the 
 present time in defining the right to pensions. 
 It received elaborate discussion from Mr. At- 
 torney General Cushing in 1855 (7 Op. Atty. 
 Gen., 149), and as Congress, since the publica- 
 tion of that opinion, has not seen proper to sub- 
 stitute any other expression, we are justified in 
 concluding that it stands in the statutes in- 
 vested with the meaning expressed by Mr. 
 Cushing. (17 Op. Atty. Gen., 172.) 
 
 [The opinion of Attorney General Cushing was 
 adopted by the Navy Department, and his 
 definition of "line of duty" was published, July 
 10, 1914, in a circular of changes and corrections 
 in "Forms of Procedure for Courts and Boards 
 in the Navy and Marine Corps, 1910," pages 
 224 and 225. (See also, Naval Courts and 
 Boards, 1917, and see file 26250-1372, Mar. 3, 
 1919 and file 26250-1491:1 Oct. 29, 1918.) It 
 was approved by the Circuit Court of Appeals 
 in the case of Rhodes v. United States 
 and 17 Op. Atty. Gen., 172, both above 
 noted. However, it was departed from by the 
 Court of Claims in Moore v. United States, 48 
 Ct. Cls., 110 (noted below), in which case, how- 
 ever, the Court of Claims did not discuss or cite 
 the Attorney General's opinions, nor the deci- 
 sion of the United States Circuit Court of Ap- 
 peals in the Rhodes case, above noted. The 
 opinion of Attorney General Cushing is also 
 modified by opinions of Attorney General 
 Palmer, August 21, 1919, and June 2, 1920 (32 
 Op. Atty. Gen. 12, 193), both noted below. 
 "Both the Circuit Court of Appeals and the 
 Court of Claims have jinisdiction, in proper 
 cases, to decide the question. I can not say 
 
 605 
 
Sec. 1451. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 that the decision of either is binding on the 
 other. In so far as they are in accord, I would, 
 in the absence of a ruling by the Supreme Court, 
 feel bound to accept their decision. In so far 
 as either has made a decision on a point not 
 considered by the other, and not in necessary 
 conflict Avith its ndings, 1 tliiuk you should 
 follow such decision. In so far as the two courts 
 are in conflict, it can not be said that there has 
 been a binding deterrhination, and you should 
 adopt the rule which is deemed most consistent 
 with reason and general authority whether in 
 entire accord with the ruling of either comt or 
 not." (Atty. Gen. Palmer to Secy. Treas., 32 
 Op. Atty. Gen., 12, 22).] 
 
 The question of what constitutes "line of 
 duty" must have existed almost from the 
 foundation of the Government, in the naval 
 service and also in the military, and in such 
 varieties of form as to afford ample means of 
 ascertaining the true legal intendment of the 
 several acts of Congress. Thus, in regard to 
 the Navy, we have the old pro\ision of the act 
 of March 2, 1799, which is the original act for 
 the government of the Navy, to the effect that 
 "every officer, seaman, or marine disabled in 
 the line of his duty, shall be entitled to receive 
 for his own life, and the life of his wife, if a 
 married man at the time of receiving the 
 wound, one-half his monthly pay" (1 Stat. 
 716). Coming down to a later period, we have 
 a series of acts in wliich the same idea appears. 
 (7 Op. Atty. Gen., 149, 151.) 
 
 Congress, if it had so pleased, might have 
 prescribed an arbitrary general rule, as, for 
 example, pension to all cases of disability or 
 death in service, except in the contingency 
 of misconduct; or pension in all cases, except 
 where the cause of disability or death should 
 occur while the party is in arrest or under 
 sentence, on furlough or leave of absence. 
 Such a rule, like all other rules of an assumed 
 arbitrary standard, might have been easier to 
 administer than a natural rule, for the latter 
 demands, in use, discriminating examination 
 and just appreciation of the nature of the in- 
 cluded subject-matter; but the natural rule is 
 the only just and eqiutable one, whether as 
 regards the rights of persons in the service, and 
 their families, or the policy of the Government. 
 (7 Op. Atty. Gen., 149, 163.) 
 
 Where precedents exist in the files of a 
 department which are apparently not in 
 accord with the meaning of the words "line of 
 duty," as_ intended by Congress, such prece- 
 dents avail nothing; decisions in the public 
 offices of the Government are facts, not rules of 
 law. (7 Op. Atty. Gen., 149, 153.) 
 
 Definition of "Hne of duty." — ^The phrase 
 "line of duty," is an apt one, to denote that an 
 act of duty performed must have relation of 
 causation, mediate or immediate, to the wound, 
 the casualty, the injury, or the disease, pro- 
 ducing disability or death. (7 Op. Atty. Gen., 
 149, 161; 17 Op. Atty. Gen., 172; Rhodes v. 
 U. S., 79 Fed. Rep., 740.) 
 
 Was the cause of disability or death a cause 
 within the line of duty or outside of it? Was 
 the cause appertaining to, dependent upon, or 
 otherwise necessarily and essentially connected 
 with, duty within the line, or was it unappur- 
 tenant, independent, and not of necessary and 
 
 essential connection? That is the true test- 
 criterion. (7 Op. Atty. Gen., 149, 162; 17 Op. 
 Atty. Gen., 172.) 
 
 The phrase, "line of duty," is definite, 
 though comprehensive'. He who contracts 
 disease or dies in consequence of the ordinary 
 performance of his military duty, or in the 
 performance of any special act of military 
 duty, whether at the moment of performance 
 he were on duty or off duty, in active service 
 or on furlough, of habits virtuous or habits 
 vicious, gallantly fighting his country's enemy 
 or expiating an offense in the guardhouse or 
 prison bay, he who in these or any other circum- 
 stances contracts disease in the performance 
 of an act of duty, contracts it "in the line of 
 his duty." On the other hand, neither the 
 bad man who dies of his incorrigible vices, nor 
 the good man who, at the full maturity of blame- 
 less life, dies in the course of nature of any of 
 the maladies incident to old age, can be said 
 to die of disease contracted while in the line of 
 duty. (7 Op. Atty. Gen., 149, 161.) 
 
 Speaking generally, a soldier who, between 
 the date of his entry into the service and the 
 date of his discharge, suffers injury or contracts 
 disease resulting in disability, is entitled to 
 compensation imder the War Risk Insui'ance 
 Act of June 25, 1918 (40 Stat., 611, sec. 300), 
 unless such injury is caused by (1) his own 
 willful misconduct, or (2) some act or course 
 of conduct of his disconnected with his military 
 duties. (32 Op. Atty. Gen. 12, 21.) 
 
 The service must have been the cause of 
 the disability, and not merely coincident 
 with it in time. — Nor was there any error 
 in the definition wliich the court gave to the 
 jury of a "disease contracted in the Line of 
 duty," when he declared that "the service 
 must have been the cause of the disease, and 
 not merely coincident with it in time." This 
 is the patent and natural meaning of the 
 language of the statute. It places the service 
 and the discharge of duty m the relation of 
 causes to the injuries and diseases that warrant 
 the grant of pensions. (Rhodes v. U. S., 79 
 Fed. Rep., 740.) 
 
 Regarding what was said in the Rhodes case 
 in the Ught of the opinions upon which it is 
 based, the following general rule may be de- 
 duced : ' ' The mere fact that an injury or disease 
 is coincident in time with service is not suffi- 
 cient to class it as suffered or contracted 'in the 
 line of duty.' It must have been caused by the 
 presence of its victim in the line of duty when 
 it was received or contracted. But the relation 
 of causation is sufficiently shown when it 
 appears that the victim was at a place and doing 
 what was required or permitted by his duty as a 
 soldier, and that between his presence and 
 conduct and the injury or disease, no adequate 
 and sufficient cause, for which he is responsible, 
 intervened." (32 Op. Atty. Gen., 12, 19, 194.) 
 
 The soldier will be responsible for the inter- 
 vening cause if (1) it consists of his own willful 
 misconduct or (2) it is something which he is 
 doing in pursuance of some private avocation 
 or business. (32 Op. Atty. Gen., 12, 23, 195.) 
 The two intervening causes mentioned are not 
 intended to exclude all others. (32 Op. Atty. 
 Gen., 395.) 
 
 606 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1451. 
 
 The cause of disability (or of death), must be 
 a cause connected by some line of co-ligation 
 with the performance of duty of an official or 
 professional natiu-e. (7 Op. Attv. Gen., 149, 
 159.) 
 
 To pension disabilities or deaths occmring 
 in the mere course of nature, and ha\dng no 
 relation of casualty in duty, or disabilities or 
 deaths produced by diseases or casualties 
 happening to an officer or soldier in the prosecu- 
 tion and pursuit of his private affairs and 
 amusements, or whilst employed on furlough 
 in lucrative occupation not official, is not 
 required by any consideration of public service. 
 (7 Op. Atty. Gen., 149, 163.) 
 
 The true theory of reason, of right, and of 
 public poUcy in these matters is to bestow 
 disability or death pensions only in those 
 cases, but in all those cases, where the cause 
 of disability or death is the logical incident or 
 provable effect of duty in the service. (7 Op. 
 Atty. Gen., 149, 163.) 
 
 No one would seriously contend that every 
 wound, injury, or disease received or con- 
 tracted during the term of ser\'ice is pension- 
 able under the law. A wound or injiu-y in- 
 flicted upon himself by a soldier, or received 
 by him while hunting wild animals, or squab- 
 bling with his comrades for his own amusement, 
 or while doing any other act not in the line of 
 his duty, would form no basis for a pension. 
 The reason is that it would not be caused by 
 his presence in the line of duty. (Rhodes v. 
 U. S., 79 Fed. Rep., 740.) 
 
 The letter of the law prescribes that the 
 quality of the act or condition, as whether in 
 line of duty or not in it, shall determine the 
 question of pension ; that alone is just and wise ; 
 and that is the thought which has from the 
 beginning of this course of legislation to the 
 end, held its place with unchangeable con- 
 stancy in all the acts of Congress. (7 Op. 
 Atty. Gen., 149, 164.) 
 
 The law does not say "disease contracted 
 while in the service," and therefore is not 
 coextensive with the mere status of an officer 
 in commission, or an enlisted soldier, sailor or 
 marine. (7 Op. Atty. Gen., 149, 160.) 
 
 It would not have answered to say merely 
 "in the service," for that would have made 
 the right of pension more extensive than the 
 right of pay, so as, in all circumstances, to 
 comprehend not only deaths of private mis- 
 adventiu-e, but even the case of criminality, 
 arrest, or suspension under sentence. (1 Op. 
 Atty. Gen., 149, 160, 161.) 
 
 The cormection between the cause and 
 the efiPect need not always be so direct 
 or instantaneous as in cases where the party 
 is in the immediate and ob\ious discharge of his 
 duty. It suffices if the disability be plainly, 
 though remotely, the incident and result of 
 the military profession. The perfonnance of 
 duty may be received as the original cause of 
 disability in some cases where it is not the 
 proximate cause. It is not necessaiy that the 
 casualty or disease should be in its nature pecu- 
 liar to the employments of military men; it 
 may be loss of eyesight, occasioned by expo- 
 sure, or consumption, the result of a cold 
 aggravated by the labors and hazards of the 
 profession, or palsy, attributable to the change 
 
 of habits in the transition from civil to military 
 life. These are cases of disability in the line 
 of duty, though they might have happened 
 to the party in any other occupation. There 
 is not one of these cases which has not relation 
 of consequence or effect, either remote or 
 proximate, to the performance of military duty. 
 (7 Op. Atty. Gen., 149, 158.) 
 
 Not restricted to battle or some 
 hazardous enterprise. — "The expression 
 ' wounds received in the line of his duty ' found 
 in section 1494, Revised Statutes, which pro- 
 \ddes for the promotion of officers of the Navy 
 whose physical disqualifications do not inca- 
 pacitate them for other duties, means precisely 
 what it says — namely, wounds received in the 
 line of duty — and is not restricted to any par- 
 ticular part of that duty, as to wounds received 
 in battle or in some hazardous enterprise." 
 (23 Op. Atty. Gen., 324.) 
 
 Private affairs not embraced by "line 
 of duty." — When the acts speak of "Une of 
 duty," they mean, of course, pubUc duty. 
 (7 Oj). Atty. Gen., 150, 155.) 
 
 It is impossible to say that the phrase cas- 
 ualties or injuries received "in the line of 
 duty, ' ' comprehends all the possible misadven- 
 tiu-es of mere private life, which may happen 
 to an officer in his personal affairs, and wholly 
 disconnected from his public duty, though he 
 be not on furlough. (7 Op. Atty. Gen., 149, 
 156.) 
 
 Every person who enters the military serv- 
 ice of the country — officer, soldier, sailor, or 
 marine — takes upon himself certain moral and 
 legal engagements, which constitute his offi- 
 cial or professional obligations. Whilst in the 
 performance of those things, which the law 
 requires of him as military duty, he is in the 
 line of his duty. But, at the same time, though 
 a soldier or sailor, he is not the less a man and a 
 citizen, with private rights to exercise and duty 
 to perform; and while attending to these 
 things, he is not in the line of his public duty. 
 (7 Op. Atty. Gen., 149, 162.) 
 
 Suppose that an officer is a proprietor of a 
 stock farm, as he has a perfect right to be, to 
 which private property, without neglect of 
 any of his public duties, he gives occasional 
 attention, and suppose that in the care of his 
 property he is killed by the kick of a vicious 
 horse of his stock, most assuredly it can not be 
 pretended that such a casualty or injury occurs 
 "in the line of duty." (7 Op. Atty. Gen., 149, 
 156.) 
 
 A soldier in attempting to pass the guard 
 with a written permit was injured by the sen- 
 tinel. If the pass was given to him solely for 
 the purpose of enabling him to attend to his 
 private affairs, and if, at the time he was in- 
 jured he was going about his private business, 
 he can in no sense be considered as in the public 
 service. (7 Op. Atty. Gen., 149, 155; 2 Op. 
 Atty. Gen., 590.) 
 
 Around all these acts of the soldier or sailor 
 which are official in their nature, the pension 
 law draws a legislatiA-e line, and then it says 
 to the soldier or the sailor — If, while perform- 
 ing acts which are within that line, you there- 
 by incur disability or death, you, or your 
 widow, or children, as the case may be, shall 
 receive a pension or other allowance; but not 
 
 607 
 
Sec. 1451. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 if the disability or death arise from act3 per- 
 formed outside of that line, that is, absolutely 
 disconnected from, and wholly independent 
 of, the performance of duty. (7 Op. Atty. 
 Gen., H9, 1G2.) 
 
 To illustrate, a soldier in camp may, during a 
 rest hour, be employing his time by working 
 on an invention wholly disconnected with the 
 military service. He is, in general, in the line 
 of duty, but at the moment is exercising a 
 private right for private purposes. An ex- 
 plosion is produced by chemicals which he is 
 using. There has intervened a cause for which 
 he is responsible and the injury is not suffered 
 in the line of duty. But while so employed he 
 is struck by lightning, or is suddenly stricken 
 with api^endicitis; clearly there has been no 
 intervening cause for which he is responsible 
 and the injury is suffered in the line of duty. 
 In either case, what he was doing was in no way 
 inconsistent with the performance of his mili- 
 tary duty. While he was doing it, the duties 
 of a soldier still rested on him. He was not 
 free from their obligations, nor was he neces- 
 sarily deprived of the rights which grow out of 
 their performance. This would_ result only in 
 the event the thing he was doing, outside of 
 his duty, caused the injury he received. (32 
 Op. Atty. Gen., 12, 20.) 
 
 May be in "line of duty" although not 
 "on duty." — The law does not say, "disease 
 contracted while on duty," and is therefore 
 independent of the condition of watch on deck, 
 or turn of detail in camp or garrison. (7 Op. 
 Atty. Gen., 149, 160.) 
 
 Nor would the wise intentions of the law have 
 been fulfilled by merely saying, "while on 
 duty," for on one hand a party, though on 
 duty, might contract disease or come to his 
 death by vice or crime; and on the other hand, 
 although not on duty, although on furlough, 
 on leave of absence, in arrest, under sentence 
 of punishment for breach of duty, civil or mil- 
 itary, in all these conditions his general mili- 
 tary obligations continue in full force and he 
 has the faculty and may have the occasion in 
 any of these conditions to perform acts of pure 
 military duty and in the performance thereof 
 to incur disease or death, in circumstances 
 devolving on his widow or children the highest 
 moral and the amplest legal right of pension 
 allowance. (7 Op. Atty. Gen., 149, 161.) 
 
 When it is remembered that no commissioned 
 officer, or enlisted soldier, seaman, or marine, 
 has power to cast off his obligation at will; 
 that whether he Ije on duty or off, in glory as in 
 disgrace, still the banner of his country is over 
 him and its oath upon his conscience; when 
 this great fact shall be remembered, it must be 
 inevital)le to concede that any rule based on 
 the assumption of its being impossible for an 
 officer or soldier on furlough, on leave of ab- 
 sence, in arrest, under sentence, to perform 
 acts, suffer casualties, receive wounds, or incur 
 causes of disease, in the line of his duty, is not 
 a truth and like all things not true, can not be 
 conformable to justice or wisdom. (7 Op. 
 Atty. Gen., 149, 163.) 
 
 As while on duty he may do or suffer things 
 not in the line of his duty, so whilst off duty 
 or on furlough or under censure, he may do. 
 
 and suffer things which are in the line of duty. 
 (7 Op. Atty. Gen., 149, 164.) 
 
 The law does not say "disease contracted 
 while in active service," and therefore is not 
 designed to raise the question of whether on 
 furlough, or leave of absence, or not. Nor 
 would it have been satisfactory to say, "in 
 active serWce," for that is descriptive only of 
 the orders under which a party may happen to 
 be, and affords no sufficient indication of what 
 is the nature or the quality of his acts. (7 
 Op. Atty. Gen., 149, 160, 161.) 
 
 The idea that fiulough or leave of absence 
 must of necessity exclude an officer from all 
 benefit of the pension laws maj'^ have arisen 
 from the fact that officers are furloughed or 
 put on leave of absence from time to time for 
 the piu'pose of enabling them to enter into lu- 
 crative private pm'suits or for some other cause 
 which implies negation of public duty. In 
 such cases the officer will, of course, be ex- 
 cluded from the pur\dew of the pension laws, 
 not because of the furlough or leave of absence 
 per se, but because of the special occasion or 
 consequences thereof. (7 Op. Atty. Gen., 
 149, 164.) 
 
 A soldier is not in line of duty if absent on a 
 furlough which by its terms authorized him to 
 enter into some form of civil employment. He 
 is not, therefore, entitled to compensation for 
 injury suffered or disease contracted while so 
 furloughed, regardless of what may have caused 
 it. (32 Op. Atty. Gen., 24, 26, 197.) 
 
 A soldier or sailor while "under an-est" or 
 "in confinement" is not discharged from the 
 obligation of duty, and is occasionally called 
 upon to perfonn duty in which he may distin- 
 guish himself and die honorably, as, for exam- 
 ple, in the contingency of a post or a camp 
 attacked by the enemy, or a ship in peril at sea. 
 So, still more, of an officer on furlough. So it 
 may be in the case of a soldier temporarily 
 "absent on leave," nay, even of one compro- 
 mised in some grave military offense. (7 Op. 
 Atty. Gen., 149, 154.) 
 
 In regard to arrest, again: Suppose that on 
 march, m camp, or garrison, or on a voyage, an 
 officer is put in arrest on charges. In the first 
 place, those charges may not be substantiated, 
 and then it would be manifestly unjust that the 
 mere fact of his being charged should operate to 
 deprive himself or his family of pension. Or, 
 while he is in arrest, he dies of camp fever or 
 ship fever, and then it is unjust to presume a 
 criminality not proved in the course of the law. 
 Or, whether guilty or not, if he die of wounds, 
 casualty, or disease contracted while in arrest, 
 still the death is not the consequence of the 
 arrest, but of the public service. If not dying 
 in arrest, and on trial being con^dcted and sen- 
 tenced, and that sentence be of death or dis- 
 missal for some grave military crime, that of 
 course terminates the question of pension; but, 
 if his offense be a light one, with a sentence of 
 reprimand, for instance, and he should have 
 happened to contract disability or mortal dis- 
 ease while in arrest, as by the hazards of a long 
 march or voyage, it seems not just to add to his 
 legal sentence the serious, indirect aggravation 
 of incapacity of pension. All these difiiculties 
 are avoided or conciliated by directing inquiry 
 
 608 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1451. 
 
 to the question — ^Yas the cause of disability or 
 death, or was it not, an act of his official military 
 duty? (7 Op. Atty. Gen., 149, 164, 1(35.) 
 
 A leave of absence, an ordinary furlough, or 
 an arrest does not remove a soldier from the 
 active service. But, on duty, on furlough, or 
 under arrest, he may do things both within or 
 without the line of duty which, though entirely 
 free from the imputation of misconduct, may 
 cause injui'v or disease. (32 Op. Atty. Gen., 
 12, 22, 25, 197.) 
 
 May be not "line of duty," although 
 "on duty." — A party, though on duty, might 
 contract disease or come to hia death by vice or 
 crime. (7 Op. Atty. Gen., 149, 161.) 
 
 While on duty, he may do or suffer things not 
 in the line of his duty. (7 Op. Atty. Gen., 149, 
 164.) 
 
 An officer or soldier who is neither under 
 arrest nor in confinement nor on furlough, nor 
 absent \vithout leave, may yet die in a thousand 
 ways which will be neither of disease contracted 
 nor of casualties by drowning or otherwise, nor 
 of wounds received while in the line of duty; 
 as, for example, in a chance quarrel, or in dan- 
 gerous amusements. The conditions of inclu- 
 sion, as well as of exclusion, must have relation 
 to the line of duty. (7 Op. Atty. Gen., 149, 
 155.) 
 
 A soldier or sailor, like any other man, has 
 the physical faculty of doing many things which 
 are in violation of duties, either general or spe- 
 cial ; and in doing these things he is not acting 
 in the line of hia duty. (7 Op. Atty. Gen., 149, 
 162.) 
 
 Misconduct or violation of duty can not 
 be line of duty. — It is conceded that if the 
 cause of death intervene as the incident, or be 
 the result, of any misconduct or violation of 
 duty, as by drunkenness or other vicious course 
 of life, or in the act of mutiny, desertion, or 
 other breach of military obligations, then the 
 party does not die by disease contracted, cas- 
 ualty occurring, or injury received while in the 
 line of duty. No man, it is clear, is acting in 
 the line of duty while the act he perfonns is a 
 violation of his duty. All such cases we ex- 
 clude at once, and by common consent, from the 
 purview of the pension laws. (7 Op. Atty. Gen., 
 149, 153.) 
 
 A soldier in attempting to pass the guard with 
 a written permit was injured by the sentinel. 
 If the assault was brought on by his own mis- 
 conduct, he can not be said to have been dis- 
 abled while in the line of hia duty. (7 Op. 
 Atty. Gen., 149, 155; 2 Op. Atty. Gen., 590.) 
 
 Misconduct or violation of duty must 
 have relation to the cause of disabiUty, 
 to exclude line of duty. — When violation 
 of duty is taken as a rule of exclusion, it oper- 
 ates only where the violation of duty has prob- 
 able relation to the cause of death; and not 
 where these are independent facts. (7 Op. 
 Atty. Gen., 149, 154.) 
 
 A sailor who is laboring under all the worst 
 effects of vicious indulgence, and subject to die 
 at any moment of disease occasioned by that 
 cause, may yet happen to die of other disease 
 contracted, or of casualty occurring, or of injury 
 received while indubitably in the line of his 
 duty. In a word, these assumed causes of 
 exclusion should operate, not per se, but only 
 
 where they affirmatively exclude the line of 
 duty. (7 Op. Atty. Gen., 149, 154.) 
 
 Contributory negligence. — An injury 
 suffered by a person otherwise in the line of 
 duty shall not be held to have been suffered 
 "not in the line of duty" for the reason that 
 the negligence of such person contributed to 
 the injury. (32 Op. Atty. Gen., 14, 24). 
 
 The question of reraote and proximate 
 cause, although frequently treated as a ques- 
 tion of law, is in reality one of fact, and which 
 in an individual case can receive but little light 
 from the numerous adjudications. In every 
 chain of circumstances each step is, to a greater 
 or less degree, the consequence of its prede- 
 cessor. (17 Op. Atty. Gen., 172.) 
 
 Thus, an ofhcer of volunteers, while in the 
 service of the United States, went to a depot 
 in Ohio, and while expediting the checking of 
 his baggage, was struck by the baggage-master 
 on the head with a hatchet, from the results of 
 which he was seriously disabled. The officer's 
 assumption of the duties of his office caused htm 
 to be subject to orders; the order caused him 
 to come in contact with the baggage-master. 
 If there did not intervene between this contact 
 and the injury an adequate and sufhcient cause 
 for which the officer was responsible, he is en- 
 titled to his pension. (17 Op. Atty. Gen., 
 172.) 
 
 But it seems that, while expediting the 
 checking of his baggage, he used abusive lan- 
 guage; as he was responsible for this, the ques- 
 tion arises whether it was an adequate and 
 efficient cause of the injury. If he attempted 
 or threatened violence, or if, after an alterca- 
 tion, he used such gestures or placed his hands 
 in such a position as to lead his opponent to 
 apprehend immediate personal danger, his con- 
 duct would be the immediate, adequate cause 
 of the injury and performance of duty could 
 not be treated as the cause, either mediate or 
 immediate. (17 Op. Atty. Gen., 172.) 
 
 It is impossible to lay down a general rule 
 applicable to all cases of this kind, or to the 
 different aspects which the present claim 
 might present as the facts shall be developed 
 by the evidence. It can not be said, on the 
 one hand, that a soldier is entitled to a pen- 
 sion vmless the provocation he gave was such as 
 to acquit the assailant in a court of law; nor, 
 on the other hand, that the slightest departure 
 from the rules of proper conduct, followed by 
 an injmy, shall preclude allowance of his 
 claim. Between the two are an infinite variety 
 of supposable cases involving different degrees 
 of provocation which can not be measured, so. 
 as to determine as a matter of law their ade- 
 cjuacy to produce the result. It is in determin- 
 ing, not the legal justification of the baggage- 
 master but the adequacy of the provocation, 
 that, in view of the benevolent purposes of the 
 law, a wise and liberal discretion ia to be 
 exercised. (17 Op. Atty. Gen., 172.) 
 
 The real question is, whether the officer's 
 conduct in the baggage room waa reasonably 
 calculated to lead to violence, dangerous to 
 himself. If it waa so calculated, his miscon- 
 duct brought its own punishment, and if the 
 punishment was greater than he deserved, legal 
 proceedings against the baggage-master would 
 furnish him hia remedy. If his misconduct 
 
 609 
 
Sec. 1451. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 caused the injury, he is not entitled to a pen- 
 sion. (17 Op. Atty. Gen., 172.) 
 
 If, while in the performance of his duty, he 
 had been injured by the fall of a carelessly piled 
 lot of bajjsage, the performance of his duty 
 would have been the mediate cause, for no 
 responsil)ility would rest on him for the inter- 
 vening cause. Otherwise, if in an interference 
 with the liaggage-master 's province and duties 
 he had seized a trunk and ])rought it down on 
 hishead. (17 Op. Atty. Gen., 172.) 
 
 "Line of duty" and "not misconduct," 
 are not synonymous terms. — la it the in- 
 tent of the law to give a pension generally, as 
 the normal fact, and with exception only of 
 the few extraordinary cases of death proved to 
 be the consecpience of a palpable violation of 
 duty? Or is the right of pension to be re- 
 stricted to the cases of death ha\dng some 
 proved or probable relation to duty, whether 
 as causation or as a consociated circumstance? 
 (7 Op. Atty. Gen., 149, 153.) 
 
 The law does not say, any disease "not the 
 consequence of misconduct;" and if that had 
 been the category contemplated by the legis- 
 lator, he would have propounded it in simple 
 and apt phraseology. (7 Op. Atty. Gen., 149, 
 160.) 
 
 The Attorney-General can not yield assent 
 to the proposition that every person in the 
 service, who is not on furlough nor under arrest, 
 and who dies of ordinary death in the course of 
 nature not traceable to mere vice or other 
 specific misconduct, in other words, that all 
 cases of natural death, with some rare excep- 
 tions of disease of provable misbehavior, are 
 deaths by disease contracted in the line of 
 duty. This doctrine is not a thing adjudicated , 
 nor as a question of novel impression, is it good 
 law. _ (7 Op. Atty. Gen., 149, 156.) 
 
 It is not a satisfactory definition to say that 
 "every officer in full commission, and not on 
 furlough, must be considered in the line of his 
 duty, although, at the moment, no particular 
 or active duty is devolved upon him," and 
 "the same of a soldier (or sailor) who is kept 
 in pay, ' ' even though such definition be quali- 
 fied by introducing the exceptions of "volun- 
 tary absence," from duty, and of "vicious or 
 unjustifiable conduct," while on duty. This 
 definition is faulty by reason of its regarding 
 the "line of duty' ' as an absolute status of the 
 party in service, when it is, in truth, a status 
 relative to certain specific legal conditio s. 
 (7 Op. Atty. Gen., 149, 159.) 
 
 The words "line of duty" can not properly 
 be held to embrace every cause of death not 
 due to the misconduct of the deceased, but are 
 used by Congress in a more limited sense in 
 its various enactments relating to the disability 
 or death of persons in the Army or Navy. This 
 conclusion is supported by the fact that the law 
 providing for the allowance of six months' pay 
 to the widow or designated beneficiary of de- 
 ceased officers or enlisted men of the Navy 
 [act May 13, 1908, 35 Stat., 128] originally ap- 
 plied by its terms to cases where the death was 
 due to "wounds or disease contracted in line 
 of duty," but by act of August 22, 1912 [37 
 Stat., 329], Congress substituted the words 
 "not the result of his own misconduct" for 
 the words "contracted in the line of duty," 
 
 this amendment being made for the express 
 purpose of giving the law a broader application. 
 (See Navy Department's circular of July 10, 
 1914, publishing changes and corrections in 
 "Forms of Procedure for Courts and Boards 
 in the Navy and Marine Corps, 1910," pp. 
 224, 225; see also Naval Courts and Boards, 
 1917. An identical change had previously been 
 made in the similar legislation relating to the 
 Army. See 43 Cong. Rec, 2688.) 
 
 Rule applicable to diseases, same as in 
 cases of injuries. — In all the statutes the 
 condition of "line of duty'' stands in exactly 
 the same relation to wounds, to drowning, or 
 other casualty and to personal injuries as it 
 does to diseases; and if it were held that all 
 possible deaths by disease happening to a 
 person in the ser\T[ce are of disease in the line 
 of duty in public service, it must in like manner 
 be held that all possible Avounds and casualties 
 happening to a person in the serAdce are in the 
 line of duty in the public service. That the 
 latter is not so, is proved by what is the well- 
 established and well-understood rule of law in 
 regard to contingencies of personal rencounter 
 producing wounds or death. (7 Op. Atty. 
 Gen., 149, 157.) 
 
 The true meaning of the phrase "line of 
 duty" is the same whether the cause of dis- 
 ability or of death to be considered is a wound, 
 a casualty, an injury, or a disease. _ Whatever 
 is of the essence of "line of duty" in any one 
 of these cases is so in the others. It being 
 established or admitted that a "wound" or 
 death by personal violence, in order to become 
 the foundation of pension, must have logical 
 correlation with military duty, it must be so 
 in the case of "casualty" and of "disease." 
 (7 Op. Atty. Gen., 149, 160.) 
 
 The same rule applies to wounds, injuries, 
 and disease; for in the law they stand together 
 in a single class. The result is that neither 
 injiury nor disease can authorize the granting 
 of a pension under the acts of Congress unless 
 it is caused by the presence of its victim in 
 the line of duty when it was received or con- 
 tracted. (Rhodes v. U. S., 79 Fed. Rep., 740.) 
 
 'line of duty' 
 
 AS DEFINED BY COURT OF 
 
 CLAIMS. 
 
 "Line of duty" is synonymous with "not 
 misconduct." — As a general proposition, a 
 soldier is in line of duty until separated from the 
 service by death or discharge, if during such 
 time he is submitting to all of its laws and 
 regulations. While on leave of absence he may 
 be ordered to active duty at any time, and to 
 this end the department is to be kept con- 
 stantly informed as to his address and all 
 changes in same. The provisions for furloughs 
 or leaves of absence are a part of the discipli- 
 nary regulations of the military service and no 
 more separate a man from the service than an 
 order to report to a different command. The 
 statute confers its benefits whenever the soldier 
 dies while in the service generally, and sub- 
 mitting to its rules and regulations, from 
 wounds or disease not the result of his own 
 misconduct. The amendment of the Army 
 death gratuity law so as to read "not the result 
 of his own misconduct," instead of "con- 
 
 610 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1451. 
 
 tracted in the Ime of duty," did not broaden 
 the application of the original statute in the 
 least. It only made absolutely certain, in 
 unmistakable terms, the intent which the 
 Court of Claims' construction afterwards gave 
 the original law, and thereby reenforced that 
 construction. It is not necessaiy to decide 
 in any case when and where the soldier con 
 tracted the disease. The court is not called 
 upon to take evidence and decide when the 
 germs of typhoid fever, tuberculosis, or other 
 disease first began to incubate. Otherwise, 
 the evidence might show that a soldier engaged 
 in active war duties for years, and in the midst 
 of which he died of tuberculosis, contracted 
 the disease before he entered the sendee. In 
 this case the soldier died while on leave of 
 absence from disease. Held, that it must be 
 regarded as '"disease contracted in line of 
 duty," although it does not specifically appear 
 when or where he contracted the disease. 
 (Moore v. U. S.,_ 48 Ct. Cls., 110. But see 
 above, under "Line of Duty Defined," sub- 
 heading '"Intention of Congress". 
 
 The Attorney General is'unable to agree that 
 the correct rule is as broad as the language of the 
 Court of Claims makes it. That construction 
 makes ""line of duty' ' practically sjTionjTnous 
 •ndth "in active ser\ice" and robs it of all 
 meaning, since the act uses both expressions 
 •with the e\'ident intention that the one shall 
 limit the other. The soldier must be in active 
 ser\ice, and the disease must be contracted in 
 line of duty. (32 Op. Atty. Gen., 12, 22, con- 
 struing War Risk Ins. Act of June 25, 1918, sec. 
 300, 40 Stat., 611.) 
 
 The Attorney General agi-ees with the Court 
 of Claims that "the pro\'isions for furloughs or 
 leaves of absence are a part of the disciplinary 
 pegulations of the military ser\ice, and no more 
 separate a man from the service than an order 
 to report to a different command." (32 Op. 
 Atty. Gen., 12, 25, 197.) 
 
 For discussion of the foregoing decision of 
 the Court of Claims, see file 26250-1491:1, 
 Oct. 29, 1918, and file 26250-1372, Mar. 3. 1919. 
 
 EVIDENCE IN LINE OF DUTY CASES. 
 
 Testimony of medical experts. — Casualty 
 is a question of fact, to be proved according to 
 the ordinary rules of evidence and to the rea- 
 sonable satisfaction of the inquiring and decid- 
 ing mind. That mind is entitled to have the 
 full facts before it, and is not bound to accept 
 as final the opinions even of an expert. Such 
 opinions are evidence, but neither conclusive 
 nor exclusive proof. Every person of judicial 
 training well knows that the opinions of med- 
 ical or other scientific or practical experts often 
 differ, and that they sometimes err in a body 
 as if by some epidemic contagion. There is a 
 judicial case involving scientific inquirj', in 
 the printed record of which are the answers 
 of 23 experts to the same question; 22 of 
 them give decision one way, and a single one 
 of them gives a reverse decision: and in the 
 conclusion it was proved beyond all contro- 
 versy, that he alone was right and that all 
 others erred. In general, the opinions of an 
 expert are of more or less weight and value, 
 according to the person's constitution of mind. 
 
 and the degree of completeness of the collec- 
 tion of pertinent facts on which his mind acts. 
 But it may happen that the great body of the 
 wisest and leamedest men of science shall be 
 possessed by an erroneous opinion, while the 
 tnie secret of nature is revealed to some dis- 
 coverer who as yet is unknown to the world 
 and is painfully struggling up into the sun- 
 light of greatness and of fame. In a word, no 
 witness, whether expert or not, can rightfully 
 claim to have his opinion take the place of the 
 facts, and so to substitute his judgment for 
 that of the officer who is A-ested by law with 
 the authority to ('ecide. (7 Op. Atty. Gen., 
 150, 165.) 
 
 The question was presented to a court of 
 inquiry in the case of a naval officer who com- 
 mitted suicide, '"whether he was insane at the 
 time of committing suicide, and if so, whether 
 such insanity was incident to the seriice." 
 Celebrated medical experts testified in behalf 
 of petitioner that in their opinion the deceased 
 was insane, his insanity being due partly to 
 the nature of the work (indexing) on which 
 he had been engaged for some time prior to his 
 death. One of these experts testified to having 
 himself pert'ormed work of the same character, 
 and was asked by the court: '"Did you ever 
 have suicidal impulses or fear that you would 
 have them?" To which he replied: "I have 
 had the fear very strongly indeed at the top of 
 high buildings, and standing alongside the 
 rushing water of the Yosemite Falls at the top 
 of the cliff, so strongly that I laid down on the 
 ground and so retreated." Another expert 
 witness for the petitioner having also testified to 
 his opinion that the deceased was insane, was 
 examined by the court in part as follows: '"Q. 
 If a man admitted having suicidal impulses, 
 such as jumping from high buildings, jumping 
 into waterfalls, etc., to such an extent that he 
 avoided places of this sort, and lay flat on the 
 ground when in such positions, would you 
 consider him as having a mental disorder, and 
 if so, what? A. Yes, I should say that he had 
 a mental disorder to the degree of his phobia 
 or obsessions, which would be the technical 
 description of it. Q. Could you classify this 
 as insanity in court? A. Technically and cor- 
 rectly speaking, yes. Practically you would 
 explain what you meant by it. " In recording 
 its finding that the deceased "was not insane 
 at the time of committing suicide, " the court 
 remarked with reference to the testimony of 
 these witnesses for the petitioner: '"As regards 
 the conclusions to be drawn from the existence 
 of these minor psychical manifestations, we 
 are confronted by the picture of an acknowl- 
 edged authority in psycho-pathology diagnos- 
 ing a mental disorder in a man as positively 
 sane as Doctor * * *. It is true that this 
 diagnosis was qualified, yet it shows the diffi- 
 culty of distinguishing in a medico-legal way 
 those conditions which, while not strictly 
 normal, are nevertheless of insufficient severity 
 to permit their classification under the head 
 of insanity." (Ct. Inq. Rec. No. 5777.) 
 
 Where the proofs are balanced, pre- 
 sumption shoiold be in favor of line of 
 duty.— The question of the quality or degree 
 of proof requisite, is a question clearly for the 
 conscience of the deciding officer. If called 
 
 611 
 
Sec. 1451. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 upon to suggest any nile for the guidance of his 
 discretion in the matter, it would be obvioua 
 to say that the pension laws ai'e beneficial in 
 their nature, and therefore to be construed 
 beneficially in matters of ine\dtable doubt. 
 In this \'io\Y, the mere fact of an officer having 
 died in the service, and with utter absence of 
 proof as to the origin or cause of his death, is 
 not sufficient to raise a pension; but where the 
 proofs are balanced, and it is impossible to 
 determine by them as to the fact of "disease 
 contracted," and the fact of "line of duty" 
 found in juxtaposition, whether this colloca- 
 tion be of contiguity only, or of actor and sub- 
 ject — of contemporaneity or sequence only, or 
 of cause and consequence — it would be reason- 
 able to presume in favor of pension; and also to 
 presume in favor of pension in cases where the 
 line of duty appears to enter potentially into 
 the cause of the death, although it should 
 happen not to be certainly provable that it was 
 the exclusive or predominant cause; so that a 
 possible error of absolute and mere uncertainty 
 shall not be suffered to defeat the liberal in- 
 tentions and beneficial policy of the Govern- 
 ment. (7 Op. Atty. Gen., 150, 166.) 
 
 Evidence in cases of suicide. — Suicide 
 is not of itself a pensionable cause of death and 
 if the suicide is alleged to have been produced 
 by insanity, and thus insanity be put for^vard 
 as the causa causans, then it must be shown 
 that the insanity was the result of or incidental 
 to actsof duty. (7 Op. Atty. Gen., 150, 155.) 
 
 Suicide is so unlikely a result of an act of 
 duty that the presumption in such cases must 
 be against line of duty in the absence of evi- 
 dence affirmatively showing that it was caused 
 by the service. (File 26250-230:3.) 
 
 See also above, "Testimony of medical ex- 
 perts;" and see below, "Specific cases involv- 
 ing 'line of duty' or 'incident of the service.' " 
 
 Burden of proof. — When an officer is 
 examined for retirement, it is incumbent upon 
 him to show, in order to secure a report which 
 will entitle him to be placed on the retired list, 
 rather than on the retired list on furlough pay, 
 that his incapacity was the result of some in- 
 cident of the service. (Bro\vn v. U. S., 113 U. 
 S., 568, 573.)" 
 
 SPECIFIC CASES INVOLVING LINE OP DUTY ' 
 "iNCinENT OP THE SERVICE." 
 
 OB 
 
 Injury from accidental causes while on 
 leave of absence. — Decedents, while on leave 
 of absence, went to a hotel together, engaged a 
 room, and were later found asphyxiated as the 
 result of a gas jet in the room having been left 
 turned on and unlighted when they retired. 
 Held, not line of dutv. (File 26250-238, 239, 
 and 240.) 
 
 Deceased, while on leave of absence and not 
 performing any act connected vdih the service, 
 was run over by a train. Held, not line of 
 duty. (File 26250-228.) 
 
 An enlisted man on authorized leave of ab- 
 sence from his ship at Brest, France, was injured 
 while en route to Paris by the accidental dis- 
 charge of a pistol in the hands of a soldier riding 
 beside him on the train. Held, line of duty. 
 This man was in Europe solely because he was 
 in active ser\'ice under the Navy Department. 
 
 As part of the disciplinary regulations of the 
 service he was given a temporary leave of ab- 
 sence and permitted to visit Paris. On the 
 way to Paris the accident occurred and he was 
 injured just as any other passenger on the train 
 might have been injured. There was no inter- 
 vening cause for which he was resiDonsible. 
 (32 Op. Atty. Gen., 193, 198.) 
 
 Attempting to save life -while on lib- 
 erty. — An officer of the Naval Reserve Force 
 while on leave of absence was injured by a pistol 
 shotin attempting to assista woman in distress. 
 Held, not in line of duty, because due to an 
 intervening cause having no connection with 
 the ser%'ice. It resulted from the performance 
 of a duty which he owed not as a soldier but as 
 a member of societv. (32 Op. Atty. Gen., 193, 
 198. But see, contra, C. M. O. 71," 1918, p. 19.) 
 
 Injury due to performance of specific 
 act of duty while on liberty. — An enlisted 
 man, while on liberty, was stabbed by a 
 drunken cabman while endeavoring to get an 
 injured shipmate back to his vessel, an act in 
 the line of his duty performed while on liberty. 
 Held, line of duty. (File 9331, Apr. 10, 1908.) 
 
 Status during intervals between hours 
 of duty. — A yeoman in the Na^y on duty at the 
 U. S. Naval Headquarters, London, England, 
 was killed by a motor bus in the immediate 
 vicinity of said headquarters but about three 
 hours after he had completed his duty for the 
 day. Held, line of duty. A soldier in camp 
 is not always occupied in the actual perform- 
 ance of some military duty. During periods 
 of rest he is more or less free to walk around 
 within the limits of the camp, ^^'hen assigned 
 to duty not in a camp, but in a city, he has like 
 fi-eedoin, and was just as much in line of duty 
 as if walking around in camp, and such an 
 accident as is liable to happen to any one pur- 
 suing such a course is the logical incident of his 
 ser^dce. (32 Op. Atty. Gen., 193, 196.) 
 
 Status while traveling from and return- 
 ing to post of duty. — "All the consequences 
 of the absence of an officer or a soldier from his 
 post of duty on his own motion for his own 
 purposes of business or of pleasure must be 
 regarded as outside the line of duty. While 
 traveling from and returning to the post of duty 
 on an ordinary furlough, given for such purposes, 
 he is at his own risk as to causes of disability 
 to which he may be subjected." (4 P. D., 
 54; 7 P. D., 102; 16 P. D., 21; House Doc. No. 
 5, 54th Cong., 2d sess., p. 74.) 
 
 A soldier, in attempting to pass the guard 
 with a written permit, was injured by the 
 sentinel. If the pass was given to him solely 
 for the purpose of enabling him to attend to his 
 private affairs, and if, at the time he was 
 injured, he was going about his private busi- 
 ness, he can in no sense be considered as in the 
 public ser^dce. (7 Op. Atty. Gen., 149, 155; 
 2 Op. Atty. Gen., 590.) 
 
 When a person returning from leave or lib- 
 erty, and prior to expiration thereof, enters a 
 boat provided by the Government for his trans- 
 portation back to his vessel he is once more 
 within the control of the naval authorities, and 
 if killed or injured without the intervention of 
 any cause for which he was responsible, a finding 
 of line of duty would be proper. But if he is 
 returning to his vessel in a private conveyance 
 
 612 
 
The Navy. 
 
 Pt.a. REVISED STATUTES. 
 
 Sec. 1451. 
 
 of hia own selection he would not be in a line 
 of duty status unless actually engaged in the 
 performance of an act of duty. (See Navy 
 Department's circular of July 10, 1914, pub- 
 lishing changes and corrections in "Forms of 
 Procedure for Courts and Boards in the Navy 
 and Marine Corps, 1910," pp. 224, 225; see 
 also Naval Courts and Boards, 1917.) 
 
 A man retvnning to liis post of duty after an 
 ordinary furlough, and killed in consequence 
 of the automobile in which he was traveling 
 being struck by a railroad train, was in the line 
 of duty at the time of death. It was the duty 
 oi the man to return to his post before expira- 
 tion of his furlough. He was doing this when 
 the accident happened, and there was no inter- 
 vening cause for which he was responsible. 
 (32 Op. Atty. Gen., 193, 197.) 
 
 Homicide. — A yeoman (female) in the Naval 
 Reserve Force was killed by her husband while 
 she was returning to her home upon the com- 
 pletion of her duty for the day. Her death was 
 not the result of her oAvn misconduct. But it 
 was not in line of duty, as it resulted from 
 jealousy on the part of her husband; in other 
 words, it grew out of the domestic relations of 
 the yeoman, entirely separate and distinct 
 from her relations to the Government. (32 
 Op. Atty. Gen., 193, 196.) 
 
 Deceased, while on liberty, was murdered by 
 a sliipmate in consequence of some difficulty 
 between the two men of a wholly personal 
 nature. Held, not line of duty. (File 26250- 
 214.) 
 
 Liberty granted for specific purpose 
 encouraged by Navy Regulations. — If a 
 man is given permission to go on shore for the 
 express purpose of engaging in athletic sports 
 or exercises encouraged by the Navy Regula- 
 tions, or permission to go swimming or boating, 
 and is injured or killed without negligence or 
 other cause for which he was responsible, the 
 finding should be line of duty, ^^'here, how- 
 ever, a man is granted liberty for his own 
 purposes, and while on liberty goes in swim- 
 ming and is drowned, the mere fact that 
 s'wimming is encouraged by the regulations is 
 not sufficient ground for holding that his death 
 occurred in line of duty. In such a case the 
 general rule applies and it must be held that 
 his death resulted from the exercise of his 
 private rights and was not caused by "an act 
 of duty performed." (File 26250-277:1; 14 P. 
 D., 114. See Navy Department's circular of 
 July 10, 1914, publishing changes and correc- 
 tions in "Forms of Procedure for Courts and 
 Boards in the Navy and Marine Corps, 1910," 
 pp. 224, 225; see also Naval Courts and Boards, 
 1917. But see 32 Op. Atty. Gen., 12, 193, 
 noted above.) 
 
 Death, as result of medical treatment. — 
 An enlisted man, suffering from a disease which 
 resulted from his o^\ti misconduct, died in con- 
 sequence of sah'arsan poisoning resulting from 
 medical treatment administered by proper 
 medical authority. Held, line of duty; death 
 was not the result of the disease but of the medi- 
 cal treatment for the disease. (File 26543-213, 
 Apr. 29, 1918, C. M. 0. 37, 1918, p. 23. Com- 
 pare 32 Op. Atty. Gen., 24, 199.) 
 
 Exercising. — Sirrgeon Thomas Ililand was 
 found by a retiring board, March 1, 1883, to 
 
 be incapacitated for active service by reason 
 of the amputation of his right leg, as the result 
 of an injury caused by taking horseback exer- 
 cise in Chile, which was shown to be necessary 
 for his health, he having been ill. The injury 
 was held to have "originated in the line of 
 duty " (See Ret. Bd. Rec, vol. 21, 1881-82, 
 case No. 284.) _ 
 
 "As swimming is an exercise prescribed by 
 the regulations in the routine of exercises and 
 drills, ' ' where an ordinary seaman was drowned 
 while in swimming, and was not guilty of con- 
 tributory negligence or gross negligence, "his 
 death occurred in line of duty." (File 2195-63, 
 June 7, 1907.) 
 
 Harrison Henry Foster, mess attendant third 
 class, died as the result of injuries received 
 during a boxing match on board the U. S. S. 
 Vermont, June 31, 1909. The board of inquest 
 reported that Foster "died in line of duty 
 * * * and that no blame is attached to any 
 person or persons connected with this occiu-- 
 rence." The report of the board was "not 
 approved " by the commander in chief of the 
 U. S. Atlantic Fleet. The disapproval, how- 
 ever, evidently related to the responsibility 
 for Foster's death, and notto the findingthatit 
 was in line of duty. The death gratuity pro- 
 vided by the act of May 13, 1908 (line of duty), 
 was paid to Foster's beneficiary by check No. 
 72274, of September 21, 1909. 
 
 In the case of A. J. Ilorgan, oiler, U. S. 
 Navy, the question arose whether an in- 
 jury to his teeth during a football game on 
 November 23, 1907, was "in line of duty." 
 The Bureau of Na\igation made the following 
 report in the case: "The policy of the Navy 
 Department is to foster athletics in the Navy, 
 and the bureau considers that footl)all and 
 other athletic contests of enlisted men on shore 
 are conducive to theii' physical development 
 and well-being and better fit them for the 
 performance of their duties on board ship, and 
 that injuries received in these contests may be 
 but justly considered in the line of duty." 
 The papers were forwarded to the Bureau of 
 Medicine and Surgery January 3, 1908 (file 
 458-5), with the follo\ving indorsement: 
 "The department considers that the %vithin- 
 mentioned injury occurred in the line of duty." 
 
 A board of inquest, August 18, 1909 (file 
 26250-89), in the case of Joseph Martin Seithel, 
 coal passer, U. S. Navy, found that the de- 
 ceased "died from injuries received while ex- 
 ercising in the gymnasium; that the deceased 
 met his death in line of duty, and that no one 
 is in any way responsible for same." 
 
 An injury suffered by a person othermse in 
 the line of duty shall not be held to have been 
 suffered "not in the line of duty" for the 
 reason that the negligence of such person con- 
 tributed to the injury, or that it was the result 
 of participation in some form of lawful sport or 
 recreation not contrary to regulations or orders. 
 (32 Op. Atty. Gen., 14, 24.) 
 
 Prisoner. — While a prisoner may be injiu-ed 
 or killed in line of duty, as shown by the 
 examples given by the Attorney General in 
 his opinion [quoted above, under "May be 
 in line of duty although not on duty"], such 
 cases must be exceptional ones rather than 
 the rule. Thus, where an enlisted man is per- 
 
 613 
 
Sec. 1451. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 forming hard laV>or under sentence of general 
 court-martial, and an injury received by him 
 is wholly due to the execution of such sen- 
 tence, it can not be held line of duty. (15 
 P. D., 54; 5 P. I)., 151.) Tf an enlii^ted man 
 is arrested or imprisoned but on trial is ad- 
 judged not guilty, a disease incurred during 
 nis arrest and imprisonment is within the 
 line of duty (4 P. D., 103). If the man died 
 while awaiting trial, a disease so contracted 
 is held to have been incm-red in line of duty. 
 (14 P. D., 213). But in a case where a private 
 in the Marine Corps was burned to death while 
 in confinement by the civil authorities await- 
 ing trial, and the evidence showed that his 
 imprisonment was the result of misconduct 
 (drunkenness) while on liberty, his death was 
 held not to have occurred in line of duty. 
 (File 26250-218. Compare file 26285-30, Apr. 
 7, 1909; file 2654.3-20, Jan. 28, 1909. Navy 
 Department's circular of July 10, 1914, publish- 
 ing changes and corrections in "Forms of Pro- 
 cedure for Courts and Boards in the Navy and 
 Marine Corps, 1910," pp. 224, 225; see also 
 Naval Courts and Boards, 1917, p. 290; and 
 C. M. O. 71, 1918, p. 20, stating that the de- 
 cision of Apr. 7, 1909, is no longer in force.) 
 
 A soldier who died while in confinement in 
 pursuance of the sentence of a court-martial, 
 did not die "while on duty," within the mean- 
 ing of the act of March 3, 1899 (30 Stat., 1224, 
 1225), which provides for the payment of 
 transportation and bvu-ial expenses of soldiers 
 who die "while on duty away from home." 
 (6 Comp. Dec, 453.) 
 
 "Suppose that on march in camp or garrison, 
 or on a voyage, an officer is put in arrest on 
 charges. In the first place those charges may 
 not be substantiated, and then it would be 
 manifestly unjust that the mere fact of his 
 being charged should operate to deprive him- 
 self or his family of pension. Or, while he is 
 in arrest, he dies of camp fever or ship fever, 
 and then it is unjust to presume a criminality 
 not proved in the course of law. Or, whether 
 guilty or not, if he die of wounds, casualty, or 
 disease contracted while in arrest, still the 
 death is not the consequence of the arrest, but 
 of the public service. If not dying in arrest, 
 and on trial being convicted and sentenced, 
 that sentence be of death or dismissal for some 
 grave military crime, that of course terminates 
 the question of pension; but if his offence be a 
 light one, with a sentence of reprimand, for 
 instance, and he shall have happened to con- 
 tract disability or mortal disease while in 
 arrest, as by the hazards of a long march or 
 voyage, it seems not just to add to his legal 
 sentence the serious indirect aggravation of 
 incapacity of pension." (7 Op. Atty. Gen., 
 149, 164.) 
 
 When confined under sentence one becomes 
 a prisoner and, for the time being, ceases to be 
 a soldier employed in active service. Not so 
 as to one under strict confinement or arrest 
 invoHang suspension from duty while awaiting 
 trial and disposition of his case, even if the 
 trial results in conviction, provided he is not 
 resisting lawful arrest. (32 Op. Attv. Gen., 
 14, 24.) 
 
 Violation of duty. — Death resulted from 
 injuries received by the deceased while on 
 
 board ship in a duty status, "entering a bunker 
 and striking a match there," which acts "were 
 both against orders." Held, that death was 
 the result of "misconduct or violation of duty," 
 and was not, therefore, the result of an injury 
 received in the line of duty. (File 26543-55.) 
 
 Horseplay. —An enlisted man is not in line 
 of duly while engaged in scuffling or squab- 
 bling with his companions, or voluntarily en- 
 gage<l in what is commonly known as "horse- 
 play," although at the time on board the ship 
 to which he is attached. (5 P. D., 47; 6 P. D., 
 22; 14 P. D., 81; 14 P. D., 506; Rhodes v. 
 U. S., 79 Fed. Rep., 740; file 25250-66. But 
 see 32 Op. Atty. Gen., 12, noted above.) 
 
 Overdose of poison. — "It has repeatedly 
 been held that- where the death of the soldier 
 * * * was caused by an overdose of a nar- 
 cotic or other poison, which had been either 
 prescribed originally by a physician in the 
 United States service, or taken upon the sol- 
 dier's own responsibility through mistake, 
 and with no suicidal intent, such death cause 
 can not be accepted as a comj^etent basis for 
 claim." (1 P. D., Ill, case of Travers, hospi- 
 tal steward; file 26250-288:2, case of Pasteur, 
 hospital apprentice.) 
 
 Disability existing prior to enlistment. — 
 Death or injury while on duty, resulting from 
 disability existing prior to enlistment, does 
 not come within the "Line of duty" category. 
 (16 P. D., 172.) 
 
 However, when a disability which originated 
 prior to enlistment, but was apparently cured 
 prior to and at the date of enlistment, is revived 
 and aggravated as the immediate result of an 
 accident or of an incident in the line of duty, the 
 injurious consequences of such aggravation may 
 amount to line of duty. (3 P. D., 41.) 
 
 In the latter case, it is necessary to establish 
 some cause or injury resulting from or incurred 
 in service in line of duty sufficient to produce a 
 recurrence of said disability — some cause with- 
 out which the recuiTence would not have 
 happened — and not merely natural aggravation 
 of an already existing disability. (3 P. D., 
 187.) 
 
 For the purpose of compensation under the 
 War Risk Insurance Act for death or disability 
 resulting from personal injury suffered or 
 disease contracted in the line of duty, the 
 "ofiicer, enlisted man, or other member shall 
 be held and taken to have been in sound con- 
 dition when examined, accepted, and enrolled 
 for service." (Act June 25, 1918, sec. 300, 40 
 Stat., 611, amending act Oct. 6, 1917, sec. 300, 
 40 Stat., 405.) 
 
 Predisposition to disease is no bar to 
 pension if the disease did not develop until 
 after claimant's admission to the service. 
 (3 P. D., 228; 16 P. D , 413.) 
 
 Suicide. — In a proper case, death by suicide 
 may be held to have occurred in the line of 
 duty, but the facts supporting such a conclu- 
 sion must be definitely ascertained and estab- 
 lished. (File 26250-86; 1 P. D., Ill; 1 P. D.. 
 108; 5 P. D., 32; 17 P. D., 50.) 
 
 In the case of F. C. McKeehan, chief yeoman, 
 U. S. Navy, the board of inquest reported, 
 July 13, 1909, that the deceased "committed 
 suicide by shooting himself through the head 
 while temporarily insane. ' ' The medical mem- 
 
 614 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1451. 
 
 ber of the board stated that "There is good 
 evidence that the injury was in line of duty, as 
 the patient was insane at the time of committing 
 the act. He shot himself through the head 
 while temporarily insane from close, constant, 
 and continuous application to the books and 
 records of this ship. He evidenced symptonis 
 of marked depression verging on melancholia 
 before the arrival of the ship in San Francisco." 
 The record was returned for an expression of 
 the board's opinion as to how far the death of 
 McKeehan was due to any act of duty. On 
 August 14, 1909, the board reassembled and 
 made the following report: "The board con- 
 curs in the opinion expressed by Dr. Bacon, 
 assistant surgeon, U. S. Navy, and believes 
 that the death of McKeehan, chief yeoman, 
 U. S. Navy, was directly due to the worries 
 and exactions of his official duties for which 
 duties the board feels that he was never 
 mentally qualified." After consideration by 
 the Department, the record was again returned 
 to the board with the following indorsement by 
 the Acting Secretary of the Navy, September 
 3, 1909: "It would appear that there is a 
 decided lack of definite and authoritative 
 evidence in the record to warrant the statement 
 of opinion that McKeehan's death was 'directly 
 due to the worries and exactions of his official 
 duties for which duties the board feels that he 
 was never mentally qualified.' The main 
 point in question, in view of the board's frnding 
 that McKeehan 'committed suicide by shooting 
 himself through the head,' is whether the cause 
 of the suicide was directly traceable to the 
 service. Therefore, it is directed that the board 
 be ordered to reconvene and, after a further and 
 more complete investigation upon the above- 
 mentioned point of information required, ren- 
 der their opinion after spreading upon the 
 record, full and completely, the reasons leading 
 to the formulation of such opinion." The 
 board thereupon reconvened and reported that: 
 "After examining witnesses 'who were most 
 closely in touch, either personally or officially, 
 with Mr. McKeehan, the board adheres to its 
 former opinion that McKeehan's death was 
 directly due to the worries and exactions of 
 his official duties, for which duties the board 
 feels that he was never mentally qualified. 
 Although the board is of the opinion that 
 McKeehan might have taken his life at some 
 time later, it is of the opinion that the direct 
 cause was the worry about his work not being 
 properly performed, his fear of being disrated, 
 and also his worry about his physical condi- 
 tion, all of which are fully brought out in the 
 testimony.' " The finding of the board was 
 approved by the Department, October 25, 
 1909. (File 26250-86.) 
 
 In the case of John Ij. Cunningham, master 
 at arms, first class, (file 26250-132), the board 
 of inquest reported, January 15, 1910, that the 
 deceased "died a natural death, caused in part, 
 however, by a pulmonary and cerebral oedema, 
 subsequent to attempt at suicide. The death 
 of J. L. Cunningham, master at arms, first class, 
 United States Navy, was in the line of duty, 
 following attempt at suicide during an attack 
 of melancholia, which was incident to over 13 
 years in the United States Navy." 
 
 Refusal of ofla.cer to submit to opera- 
 tion.^ — The finding of a retiring board that the 
 present incapacity of an officer "is due to the 
 fact that he will not submit to an operation 
 recommended by responsible medical ofiicers of 
 the Navy, and is therefore not the result of an 
 incidentof the service," should be disapproved. 
 The officer was injured by a fall in leaving a 
 recruiting station where he was on duty, re- 
 sulting in hernia; he was operated on the next 
 day at a local hospital; thereafter he was in- 
 capacitated for duty, the medical members of 
 the board finding that his incapacity consisted 
 of a chronic intestinal obstruction, probably 
 due to adhesions, and possible chronic ap- 
 pendicitis, the chronic intestinal obstruction 
 having followed an operation for strangulated 
 inguinal hernia, right side, the said hernia hav- 
 ing been contracted in line of duty. In the 
 earlier or preliminary part of the finding, the 
 board says, after stating the cause of this officer's 
 present condition, "that this condition could 
 probably be relieved by an operation * * *." 
 Here, as well as throughout the testimony and 
 findings of previous boards in the case, there is 
 no assurance as to relief. Various expressions 
 are used , indicating a caution of expression on 
 this point which in such cases as this is prob- 
 ably reasonable; but which are, nevertheless, 
 significant. The evidence given before the 
 board does not show that the operation would be 
 a harmless or minor one. On the contrary, 
 from the expressions relative to the matter as 
 given in the testimony of the medical officers, it 
 appears to be one of considerable gravity. A 
 capital operation is said to be "one involving 
 some danger to life;" a major operation is de- 
 fined as "an important and serious opera- 
 tion;" and a minor operation as "a compara- 
 tively trivial" one. Anj^ surgical procedure 
 that involves an opening into one of the large 
 cavities of the body is presumably serious, es- 
 pecially as in this case when there is much 
 doubt as to the exact nature of the ailment. 
 In this case the procedure advised is one at- 
 tended with sufficient risk to take it out of the 
 class of minor operations and put it into the 
 class, at least, of major if not of capital opera- 
 tions. No law or regulation of the Navy is 
 known which applies directly to the condi- 
 tions involved in the case here under con- 
 sideration; nor is any custom or usage known 
 which would require that an officer submit to a 
 major or capital operation. Under such cir- 
 cumstances it is not perceived upon what exact 
 ground the officer should be compelled to sub- 
 mit to the operation advised. Held, that the 
 finding should be disapproved, the operation 
 being one to which the officer should not be re- 
 quired to submit. The result arrived at does 
 not necessitate an inquiry into the question 
 whether, if the disability of this officer was one 
 which required for his relief an operation to 
 which he might be compelled to submit, he 
 should under such circumstances be regarded 
 as suffering from a disability not the result of 
 an incident of the service. A review of the 
 opinions of Attorneys General (1 Op. Atty. 
 Gen., 181, 7 Op. Atty. Gen., 149, 17 Op. Atty. 
 Gen., 172) relating to the subject of "line of 
 duty," does not appear to show that such 
 
 615 
 
Sec. 1462. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 might bo the case. If the oilicer in this case 
 should die at the present time, without having 
 submitted to the ad\'ised operation, it could 
 hardly be held , if his demise was due to his in- 
 jury in question, that his death was not the 
 resultofan incident of the service. (File2G253- 
 98, May 17, 1910. See, also, note to sec. 1368 
 R. S., under "Compulsory medical treatment 
 of persons in Navy.") 
 
 Ordered to hospital while on furlough. — 
 As the furlough of a soldier is terminated by 
 being ordered by competent authority to a 
 hospital for treatment , he is while in the hos- 
 pital in obedience to said orders "on duty" 
 within the meaning of the laws allowing pay- 
 ment of expense of his medical care and 
 treatment. (12 Comp. Dec, 562; compare 6 
 Comp. Dec, 444.) 
 
 Sec. 1452. [Record of proceedings; revision by President.] A record of 
 the proceedings and decision of the board in each case shall be transmitted 
 to the Secretary of the Navy, and shall be laid by him before the President 
 for his approval or disapproval, or orders in the case. — (3 Aug., 1861, c. 42, 
 s. 23, V. 12, p. 291.) 
 
 retiring board, still it would be inoperative to 
 effect his retirement until approved by the 
 President. (21 Op. Atty. Gen., 385.) 
 
 No power of review exists after Presi- 
 dent's approval. — Whether the finding of the 
 board was warranted by the evidence adduced 
 is an Inquiry that can not now be gone into, 
 as no power of review over the proceedings of 
 the retiring board exists by law where its 
 finding has been once approved by the Presi- 
 dent and his "orders in the case" executed. 
 The result is that the objection urged by Pay- 
 master Rodney can not be considered in con- 
 nection with any part of the record of proceed- 
 ings of the board except the finding, and this 
 affords no foundation for such objection. 
 Accordingly, held that there is no legal ground 
 for setting aside the proceedings of the retiring 
 board and revoking the order of retirement in 
 this case. (15 Op. Atty. Gen., 446; see also 
 Dig. Comp. Dec, 493, noted under sec. 1451, 
 R. S., "Findings not subject to review by 
 accounting' officers;" and see notes to sees. 1454 
 and 1457, R. S.) 
 
 Newly discovered evidence. — Where an 
 officer was found by a board of examination 
 to be physically qualified for promotion, but 
 deficient in professional qualifications, and it 
 afterwards developed that he was at the time of 
 his examination suffering from a disability 
 incurred in the line of duty, which disqualified 
 him for promotion, it is within the power of the 
 Secretary of War, representing the President, 
 to order a new physical examination. (27 Op. 
 Atty. Gen., 193.) 
 
 Proceedings contrary to law. — Where 
 the President possesses the power of review, 
 he has the power, as a necessary incident to 
 the power of review, if he finds that an officer 
 has not had such an examination as the law 
 declares he shall have, or, in other words, if the 
 proceedings are fatally defective, to treat the 
 proceedings of the board as a nullity and direct 
 an examination in accordance with law. (27 
 Op. Atty. Gen., 193, 201.) 
 
 An opinion and recommendation of an 
 examining board made under a misconstruction 
 of the law cannot control distinct statutory 
 provisions which limit retirements. Accord- 
 ingly, where an officer has been erroneously 
 retired in accordance with the board's finding 
 which was contrary to law, it is the duty of the 
 President to correct such action. (17 Op. 
 Atty. Gen., 7.) 
 
 Judge Advocate General shall, under the 
 direction of the Secretary of the Navy, 
 receive, revise, and have recorded, the 
 records of all retiring boards in the Navy 
 and Marine Corps. (Act June 8, 1880, 
 21 Stat., 164, amended by act June 5, 
 1896, 29 Stat., 251.) 
 President may direct the Secretary of the Navy 
 to take such action on the records of pro- 
 ceedings of naval examining boards and 
 boards of naval surgeons for the promotion 
 of officers of the Navy, as is now required 
 by law to be taken by the President. 
 (Act May 22, 1917, sec. 20, 40 Stat., 90.) 
 Cannot be retired without President's 
 approval. — The conclusions of any military 
 court, board, or commission, must, before 
 being carried into execution, have the approval 
 of the commander in chief or of some one 
 representing him. Accordingly, even where 
 the law does not expressly provide for approval 
 of boards in the Army, such boards must 
 receive the approval of the Secretary of War, 
 whose action is conclusively presumed to be 
 that of the President, in order to be valid and 
 effective. It is not, however, essential that 
 this approval should be express or indicated in 
 any fonnal language ; it might be indicated by 
 merely giving effect, through appropriate 
 orders, to the findings of the board. (27 Op. 
 Atty. Gen., 193; see also 12 Op. Atty. Gen., 
 347.) 
 
 Action of the President is necessary before 
 retirement can be made; and an officer accord- 
 ingly can not be deprived of active-duty pay as 
 of a prior date. (12 Comp. Dec, 628; see note 
 to sec. 1457, R. S.) 
 
 Under the laws regulating retirements in the 
 Army (sees. 1250, 1251, R. S.), no officer can be 
 retired from the Army upon the report of any 
 board, even if such report be approved by the 
 Secretary of Wai', except it "is approved by 
 the President." (21 Op. Atty. Gen., 385.) 
 
 An officer of the Army was examined for 
 promotion and found incapacitated for active 
 service on account of certain physical disabili- 
 ties; this finding was approved by the Surgeon 
 General and by the Major General Command- 
 ing the Army, and by the Acting Secretary of 
 War; the officer was notified that he would be 
 retired at the proper time, and was granted 
 sick leave of absence until further orders. 
 Held, even if the action of the examining board 
 were to be regarded and treated as that of a 
 
 616 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1454. 
 
 Delay in President's action. — An officer 
 of the Army was found incapacitated for active 
 service by a retiring board in April, 1879. 
 This finding was not approved by the Presi- 
 dent iintil February 26, 1891, whereupon he 
 was placed on the retired list jjiu-suant to sec- 
 tion 1251, Revised Statutes [which is similar to 
 
 section 1453, Revised Statutes, relating to the 
 Navy]. In the meantime he was granted ex- 
 tended sick leave until July 20, 1889, when he 
 was ordered to duty: Held, that his retirement 
 was strictly in accordance with section 1251 of 
 the ReATsed Statutes. (Steinmetz v. U. S. , 33 
 Ct. Cls. , 404. See also note to sec. 1502, R. S. ) 
 
 Sec. 1453. [Disability due to an incident of the service.] Wlien a retiring- 
 board finds that an officer is incapacitated for active service, and that his 
 incapacity is the result of an incident of the service, such officer shall, if 
 said decision is approved by the President, be retired from active service 
 with retired pay, as allowed by Chapter Eight of this Title. — (3 Aug., 1861, 
 c. 42, s. 23, V. 12, p. 291.) 
 
 "Chapter Eight of this Title" refei-s to sections 
 
 1556-1595, Revised Statutes. 
 Incident of the service defined. See note to 
 
 section 1451, Revised Statutes. 
 Pay of officers retired for disability incident 
 
 to the serA-ice. See section 1588, Revised 
 
 Statutes, and note thereto. 
 Pay of retired officers on active duty. See 
 
 note to section 1462, Revised Statutes. 
 Rank of officers on retii-ement for disability 
 
 incurred in line of duty. See note to 
 
 section 1457, Revised Statutes. 
 
 Retirement for disability a "benefit" 
 to oflB.cers. — See note to section 1448, Re\'i8ed 
 Statutes. 
 
 The pay to which oflacers on the retired 
 list are entitled is usually a certain per cent 
 of the pay to which they would be entitled if 
 on the active list with the rank and length of 
 service they had at the date of retirement. 
 (15 Comp. Dec, 72.) 
 
 See note to sections 1448 and 1451, 
 Revised Statutes, for citations bearing upon 
 this section. 
 
 Sec. 1464. [Officers wholly retired, or retired on furlough pay.] When 
 said board finds that an officer is incapacitated for active service and that his 
 incapacity is not the result of any incident of the service, such officer shall, if 
 said decision is approved by the President, be retired from active service on 
 furlough-pay, or wholly retired from service ■with one year's pay, as the Presi- 
 dent may determine. — (3 Aug., 1861, c. 42, s. 23, v. 12, p. 291.) 
 
 Fiu-lough pay of reth'ed officers. See section 
 
 1593, Revised Statutes. 
 Misconduct, officers can not be retired for. 
 See section 1456, Re^Tsed Statutes, and 
 note thereto. 
 Names of officers wholly retired shall be omitted 
 from the Na\'j' Register (sec. 1457, R. S.). 
 Transfer from furlough to retired pay list was 
 authorized by section 1594, Re\Tsed Stat- 
 utes. (But see act Aug. 5, 1882, 22 Stat., 
 286, and see cases noted below.) 
 Constitutionality of statute. — The juris- 
 diction of the President over the relations of an 
 officer to the Army and his right to determine 
 whether an officer incapacitated for service be 
 placed on the retired list or wholly retired, are 
 created by statute, and the President's author- 
 ity therefore is wholly dependent upon the let- 
 ter of positive enactment. (McBlair v. U. S., 
 19 Ct. Cls., 528.) 
 
 The regrilation of the retired list by Congress 
 can in no wise interfere with the constitutional 
 power of the President as Commander-in-Chief. 
 As to such enactments he becomes an execu- 
 tive officer, and is Limited in the discharge of 
 his duty by statute. GMcBlair v. U. S., 19 Ct. 
 Cls., 528.) 
 
 The purpose of the law embodied in sections 
 1229 and 1624, article 36, RexTsed Statutes, re- 
 stricting the dismissal of officers of the Army 
 and Na\'3', was not to attach a life tenure or 
 element of vested right to the office, but to save 
 
 officers in time of peace from the ignominy of a 
 hasty and dishonorable dismissal. It was an 
 exercise of the legislative power "to make rules 
 for the government and regulation of the land and 
 naval forces" [Constitution, Article I, section 8, 
 clause 14]; related to the punishment or pro- 
 tection of indi^^.dual officers; and was intended 
 to secm'e to each officer a trial by court-martial 
 in all cases "in time of peace." On the other 
 hand, the act of July 15, 1870 (16 Stat., 314), 
 providing for the reduction of the Army and the 
 mustering out by the President, with one year's 
 pay, of officers foxmd by a board to be imfit for 
 the proper discharge of their duties "for any 
 cause except injuries incurred or disease con- 
 tracted in the line of their duty," was an exer- 
 cise of the legislative power ' ' to raise and sup- 
 port armies " [Constitution, Article I, section 8, 
 clause 12]; related to the Army at large; and 
 was intended to reduce the Army of the United 
 States from 45 to 25 regiments. ^ The two laws 
 are neither in conflict nor in pari materia; they 
 spring from different pro\'isions of the Constitu- 
 tion, and have entirely different pm-poses. 
 (Street v. U. S., 24 Ct. Cls., 230.) 
 
 See notes to Constitution, Article I, section 8, 
 clause 14, and Article II, section 2, clause 1, 
 "Powers of Congi-ess and of the President." 
 
 Not repealed by later general laws. — 
 Section 1442, Re\'ised Statutes, gives the right 
 to furlough an officer of the Na^'J', and section 
 1557 fixes the proportion of the pay that he 
 
 617 
 
Sec. 1464. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 shall have while on furlough. Section 1454 
 
 f)rovidcy for rt'tiring oflicers of the Navy on fur- 
 ough pay, and section 1593 provides specifically 
 that such ofiicera shall receive only one-half of 
 the pay to which they would have been entitled 
 if on leave of absence on the active list. These 
 sections have not been repealed. (15 C'omp. 
 Dec, 73; sec also Hannum v. U. S., 226 
 U. S.,436.) 
 
 Congress having for the past 30 years pre- 
 served a distinction between naval officers "on 
 the retired list," and such officers "on the 
 retired list with furlough pay, " a statute pro- 
 viding for the pay of naval officers on the 
 "retired list"' will not be held to abolish the 
 furlough-pay list. (Brown v. U. S., 113 U. S., 
 568). 
 
 An officer was retired in conformity with the 
 provisions of section 1454, Re\dsed Statutes, on 
 furlough pay, upon finding of retiring board 
 that he was incapacitated for active service, 
 not as a result of an incident of the service. 
 Held, that laws regulating the pay of commis- 
 sioned officers of the Navy do not apply to offi- 
 cers "who were retired because of their own 
 misconduct, ae pro\'ided by section 1454, " but 
 only to commissioned officers on the active 
 list. (Hannum v. U. S., 43 Ct. Cls., 320; 
 affirmed, 226 U. S., 436.) [That court was in 
 error in treating section 1454 as providing for 
 the retirement of officers "because of their 
 own misconduct, " see section 1456, Revised 
 Statutes, and note thereto. That incapacity due 
 to misconduct is not the only class of physical 
 disability which is not the result of any incident 
 of the service, see note to section 1451, Revised 
 Statutes.] 
 
 The act of July 16, 1862, provided that the 
 annual pay of retired naval officers shall be as 
 follows, viz: Admirals, $2,000; commodores, 
 $1,800; captains, $1,600; etc., etc., embracingthe 
 several grades down to and including ensigns. 
 It was held that under that act all officers on 
 the retired list were classified for pay purposes 
 according to rank only, and that when the 
 rank of an officer in any case was determined, 
 the law itself declared in dollars what should 
 be his annual pay, notwithstanding that he 
 may have been placed on the retired list ex- 
 pressly on the footing of a rate called furlough 
 pay; that by said act of 1862 a new and uni- 
 form rule for the pay of retired officers was 
 adopted, which superseded furlough pay; that 
 opinions in regard to repeals by implication 
 not being favored, have no application to this 
 question; and that where the law made no 
 exception none could be made by construction; 
 it covers the whole subject of pay of the officers 
 enumerated, and makes no exception as to fur- 
 lough pay. (12 Op. Atty. Gen., 222.) [It 
 would seem that this opinion held the law of 
 August 3, 1861, to be repealed by the act of 
 July 16, 1862, but that nevertheless said law 
 of 1861 was incorporated into the Revised 
 Statutes as section 1454; see Brown v. U. S., 
 noted above.] 
 
 Meaning of "wholly retired." — "What is 
 it to be wholly retired from the service? It is 
 nothing less than to be put out of the Army 
 and out of office. " (Miller v. U. S., 19 Ct. Cls., 
 338, 353.) 
 
 Any form of removal of an officer from his 
 office without his consent is a dismissal. (29 
 Op. Atty. Gen., 600; but see note to sec. 1456, 
 R. S., and see file 26260-1392, noted below.) 
 
 The various methods by which persons in 
 the military or naval service of the United 
 States may be involuntarily separated there- 
 from are embraced in the terms "discharged, " 
 "dismissed," and "wholly retired" [and 
 "dropped from the service " : see section 1505, 
 Revised Statutes, as amended; or dropped 
 "from the rolls:" see section 1220, Revised 
 Statutes, and note thereto. The word "dis- 
 charged " is properly limited in its application 
 to those who have enlisted for definite periods 
 (citing Emory v. V. S., 19 Ct. Cls., 254, 
 262), and unless qualified by other words, as, 
 for example, "dishonorable" discharge, "bad 
 conduct" discharge, discharge "without 
 honor, " it does not carry with it any stigma of 
 disgrace or punishment. "Dismissed" is a 
 term peculiarly applicable to officers and is 
 the equivalent of dishonorable discharge. 
 "^\^lolly retired" is a phrase coined for the 
 purpose of convening, with reference to offi- 
 cers, the same idea as attaches to the word 
 "discharged" when applied to enlisted men. 
 The meaning of these terms and the importance 
 of distinguishing between them was discussed 
 by the Court of Claims in the ca.se of Emory v. 
 U. S. (19 Ct. pis., 254, 263), in which it was 
 said: "Other instances can be found in the 
 statute-books where the legislative draftsman 
 has been embarrassed by the technical mean- 
 ings which the Army attaches to these words. 
 Thus the act 3d August, 1861 (12 Stat. L., p. 
 289, sec. 17), provided a method for clearing 
 the Army of officers incapacitated for service. 
 As to those who were incapacitated from long 
 and faithful service, by wounds, &c., it pro- 
 vided that they should be placed on the 're- 
 tired list. As to those whose incapacity was not 
 the direct result of their service the statute 
 intended that they should be removed from 
 office with one year's pay. But the draftsman 
 manifestly could not find a term or phrase to 
 express that idea. If the statute should say 
 'discharged' it would use a term applicable to 
 enlisted men; if it should say 'dismissed' it 
 would use a term savoring of punishment and 
 disgrace. He therefore avoided these and 
 used the curious euphemism 'wholly retired. '" 
 (File 26260-1392, June 29, 1911, p. 25.) 
 
 Status of officer "wholly retired." — 
 Officers wholly retired from the service are "ex" 
 or "ci-devant" officers; their case is very differ- 
 ent from that of officers merely retired from 
 active service. (29 Op. Atty. Gen., 401.) 
 
 An officer on being wholly retired becomes a 
 civilian. (Miller v. U. S., 19 Ct. Cls., 338, 353.) 
 
 Where the law pro\'ided for honorably dis- 
 charging from the Amiy certain officers with 
 "one year's -pay and allowances," held that 
 " all officers discharged in pursuance of this 
 provision were remitted to civil life, free from 
 all obligation to the Government other than 
 such as concerns every citizen. No condition 
 except that of honorable discharge is pre- 
 scribed by it, and there is nothing in it indi- 
 cating that such officers should not thereafter 
 be eligible to any office, ci\ril or militaiy, no 
 
 618 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1454. 
 
 matter how great might be its emoluments, 
 unless what had been thus received should be 
 refunded." (14 Op. Atty. Gen., 230; see also 
 15 Op. Atty. Gen., 177.) , i v 
 
 Status of officer retired on furlough 
 pay— An officer, though retired on furlough 
 pav, is an officer on the retired list, beingspecifi- 
 cally so recognized by section 1593 of the 
 Revised Statutes. (15 Comp. Dec, 73.) 
 
 President's action can not be revoked.— 
 The President having once "determined 
 whether the officer shall be retired from active 
 service or wholly retired, can not re\aew his 
 decision nor correct an error of judgment. 
 (McBlair v. U. S., 19 Ct. Cls., 528.) 
 
 The President has the right upon the report 
 of a retiring board to retain an officer m active 
 service or retire him from active service or 
 wholly retire him. But this is not a contmu- 
 ino' power and is performed to the extent of 
 its" existence by the one act of the President. 
 (McBlair v. U. S., 19 Ct. Cls., 528.) , 
 
 The rio-ht of the President to review his own 
 action, il'it exist, must be subject to reasonable 
 limitations. A change of an order after two 
 distinct recognitions of approval would be an 
 unreasonable exercise of the right of review. 
 (McBlair v. U. S., 19 Ct. Cls., 528). _ 
 
 An officer of the Army was found incapaci- 
 tated by sickness "notincident to the service." 
 By direction of the President he was wholly 
 retired and his successor appointed and con- 
 finned The officer asks a rehearing which is 
 granted by the President, in consequence of 
 which the President revokes his former order 
 and places the officer upon the retired list. 
 Held, that upon the order of the President ap- 
 pro\dng a report and "wholly retiring" an 
 officer there is in law and in fact a vacancy, 
 the legal status of the officer becoming that of a 
 private citizen; and that he can not again be 
 restored to office except by a new appointment 
 in pursuance of a nomination to and confirma- 
 tion by the Senate; and that the President has 
 no power to reinstate by mere revocation, with- 
 out the advice and consent of the Senate, after 
 the complete severance of the individual and 
 the office. Held, further, that the nomination 
 and confirmation of an officer as the successor 
 of one "wholly retired" operates in law to 
 supersede the retired officer, who thereby 
 ceases to have any connection with the Army. 
 (Miller v.. U. S., 19 Ct. Cls., 338.) 
 
 A retiring board found an officer "incapaci- 
 tated for duty by disability which did not 
 orioinate in the line of duty." The finding 
 was approved by the President, and the claim- 
 ant was thereupon retii-ed upon furlough pay, 
 as required by section 1454, Revised Statutes. 
 About two years later the Secretary of the Navy 
 decided that "the department is of the opinion 
 that the causes which incapacitated him for 
 active duty were incident to the service . " Un- 
 fortunately for the claimant, the retiring board, 
 by the President 's approval , and not " the depart- 
 ment," was authorized by law to settle that 
 fact (sees. 1451 and 1454, R. S.). At the time 
 the opinion of the department was promul- 
 gated, the Secretary had no more power to 
 revise the finding of the board and to reverse 
 the approval and action of the President 
 thereon than he had to overrule a decision of 
 
 o4G41°— 22- 
 
 ■40 
 
 the Supreme Court. (Burchard v. U. S., 19 
 Ct. Cls., 137.) 
 
 Neither the depai-tment nor the President 
 could then change the findings, as they had 
 already been approved and were no longer open 
 to review. The action of the President was 
 equivalent to the judgment of an appropriate 
 tribunal upon the facts as found. That judg- 
 ment, as a judgment, could not be disturbed. 
 (U. S. V. Burchard, 125 U. S., 176; 27 Op. Atty. 
 Gen., 225.) 
 
 An officer of the Army was found by a retir- 
 ing board "incapacitated for active service 
 from insanity, which insanity is not incident to 
 the service. ''' By direction of the President he 
 was retired from active service. Thereafter, 
 by direction of the President, this order was so 
 amended as to wholly retire him from the serv- 
 ice with one year's pay, this amendment being 
 made at the officer's request. Thereafter, by 
 direction of the President the order wholly 
 rething the officer was declared void on the 
 ground that he was insane when he made the 
 request, and he was restored to the retired list 
 in accordance with the original order. The 
 President, under the law, had power (1) to 
 place the officer on the retired list, or (2) to 
 wholly retire him from the service with one 
 year's pay and allowances. Having once 
 acted under that power upon the report of the 
 board by retiring the officer, his power as to 
 this particular case was thereby exhausted . In 
 general, where power is given by statute to 
 enable an officer to do a particular act which 
 would otherwise be beyond the scope of his 
 authority, after such power has once been ex- 
 ercised it is deemed exhausted and can not be 
 exercised again. Accordingly, the order wholly 
 retiring this officer from the service was void, 
 for want of authority in the President thus to 
 retire him. The circumstance that such order 
 was issued in compliance with a request made 
 by the officer when insane may afford additional 
 ground for holding it void . (19 Op . Atty . Gen . , 
 202, 207.) 
 
 In People v. Waynesville (88 111., 470, 475) 
 it is observed: "As a general rule, where the 
 general assembly confers a power, and the 
 persons upon whom it is conferred act under it, 
 the power is exhausted, unless power is given 
 to act again under the same authority. ' ' And 
 in Ex parte Randolph (2 Brock., 473, 474\ the 
 court says: "I take it to be a sound principle , 
 that when a special tribunal is created, with 
 limited power and a particular jurisdiction, 
 whenever the power is once executed the juris- 
 diction is exhausted and at an end — that the 
 person thus invested with power is, in the 
 language of the law, functus officio." _ These 
 cases are cited by the Court of Claims m 
 McBlau- V. U. S. (19 Ct. Cls., 528^, in holding 
 that the President 's power is performed to the 
 extent of its existence by the one act of approval 
 of the proceedings of a retiring board. (19 
 Op. Atty. Gen., 202, 207.) 
 
 None but officers in active service being 
 eligible for retirement, the action of the Presi- 
 dent revoking a previous order dropping an 
 officer from the rolls, and putting him on the 
 retired list of the Army, was ineffectual for that 
 purpose. (19 Op. Atty. Gen., 202, 205.) 
 
 619 
 
Sec. 1454. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Whether the finding of the l)oard was war- 
 ranted by the evidence adduced is an inquiry 
 that can not now he gone into as no power of 
 review over the proceedings of the retiring 
 board exists by law where its finding has been 
 once approved by the President and his "or- 
 ders in the case" executed. (15 Op. Atty. 
 Gen., 446.) 
 
 For other cases, see notes to sections 1452, 
 1456, and 1457, Kevised Statutes. 
 
 Transfer of officer from furlough to 
 retired pay list does not change cause of 
 retirement. — A retiring board reported that 
 an oflicer was incapacitated for active service 
 and that in its judgment the incapacity did not 
 originate "in the line of duty. ' ' In this report 
 the President concurred, and directed a re- 
 tirement on fiu-lough pay. Held, that the 
 finding of the retiring board, approved by the 
 President, is the judgment of the triljunal, 
 created under the law for the government of 
 the Navy to determine such questions, that 
 the officer be retired from active service for 
 incapacity which ' ' did not originate in the line 
 of duty." This made him a retired officer on 
 furlough pay, and gave him one-half the leave 
 of absence pay of an officer on the active list. 
 When he was afterwards transferred by the action 
 of the President and Senate, under section 1594, 
 Revised Statutes, "from the furlough to the 
 retired pay list," his status as a retired officer 
 was not changed. He still remained an officer 
 retired for incapacity which did not originate in 
 the line of duty, but his pay was raised from that 
 of an officer retired ' ' on furlough pay ' ' to that of 
 an officer retired on half sea pay. The object 
 of the statute was not to enal)le the Pi'esident 
 and Senate to vacate the finding of the retiring 
 board that the incapacity of the officer did not 
 "originate in the line of duty" and to decide 
 that it was "the result of an incident of the 
 service," but to afford a means for his relief 
 from the consequences of such a finding to the 
 extent of adding to his pay the difference be- 
 tween the half of leave of absence pay and the 
 half of sea pay. "It may have been intended 
 as a provision for a remedy for wrongs done liy 
 retiring boards, but it limited the power of the 
 President and Senate in that behalf to a trans- 
 fer of the name of the officer from 'the furlough 
 to the retired pay list.' The cause of his re- 
 tirement still remains the same and deter- 
 mines his position on the 'retired-pay list.' '' 
 (Potts V. U. S., 125 U. S., 173; 27 Op. Atty. 
 Gen., 221.) 
 
 The transfer of the claimant "from the fur- 
 lough to the retired pay list' ' did not haA-e the 
 effect to abrogate the finding of the retiring 
 board and insert in its place that the cause of 
 his incapacity did originate from the service. 
 (Burchard v. U. S., 19 Ct. Cls., 137; 125 U. S., 
 176.) 
 
 Cause of retirement cannot be changed 
 by Congress. — In 14 Comp. Dec, 161, it 
 was held that a private act of Congi-ess wnich 
 authorized the Secretary of the Navy to trans- 
 fer an officer on the retired list "from the half- 
 pay list to the seventy-five per centum list 
 under section fifteen hundred and eighty- 
 eight ReA^sed Statutes," operated to change 
 the status of the officer from that of one re- 
 tired for incapacity not incident to his service 
 
 to that of one retired for an incapacity of serv- 
 ice origin. In 27 Op. Atty. Gen., 221, the 
 Attorney General stated that he could not con- 
 cur in this decision ; that it may be questioned 
 whether or not Congress has the authority to 
 change the findings of the retiring board ap- 
 proved by the President, even if it so intended ; 
 and that the private act did not make the 
 beneficiary an officer of the Navy who had 
 theretofore been retired on account of woimds 
 or disability incident to the ser\-ice. There- 
 after, in 15 Comp. Dec, 584 (97 S. & A. Memo. 
 1004), the Comptroller of the Treasury reversed 
 his pre\dou3 decision (14 Comp. Dec, 161) 
 and followed the opinion of the Attorney Gen- 
 eral. The opinion of the Attorney General, 
 thus followed by the Comptroller of the Treas- 
 ury, was sustained bv the Court of Claims in 
 Morse v. U. S., 46 Ct. Cls., 361, affirmed by the 
 Supreme Court in 229 U. S.. 208. 
 
 Where an officer of the Navy was retired 
 under section 1454, Revised Statutes, for inca- 
 pacity not originating in the line of duty, and 
 upon a full review of the facts the Secretary of 
 the NaAy found that the causes of his incapac- 
 ity were incident to the service, and he was 
 accordingly transferred by the President, by 
 and with the ad\ice and consent of the Senate, 
 from the furlough to the 50 per cent retired 
 pay list, under sections 1594 and 1588, Revised 
 Statutes, and later, pursuant to a private act 
 of Congress, was transferred to the 75 per cent 
 pay list of retired officers under section 1588, 
 Re\ased Statutes, he can not thereafter be 
 placed on the retired list with the retired pay 
 of one grade above that actually held by him 
 at the time of his retirement, under the act of 
 June 29, 1906 (34 Stat., 554), which authorizes 
 such advancement to certain officers of the 
 Navy who have been retired on account of 
 wounds or disability incident to the service. 
 The status of this officer was fixed by the find- 
 ings of the retiring board, approved by the 
 President, and it may be questioned whether 
 or not Congress has the authority to change 
 the finding of the retiring board, even if it so 
 intended, although it is undoubtedly within 
 the power of Congress to give him all the bene- 
 fits which he would have received had he been 
 correctly retired. The private act gave him 
 all the benefits of persons who were entitled 
 to the emoluments prescribed therein, but it 
 did not make him an officer of thi^ Navy who 
 had theretofore been retired on account of 
 wounds or disability incident to the service, 
 the fact being, as the record shows, that, 
 although unadAdsedly or erroneously, he was 
 definitely retired for a physical disability 
 which was not due to an incident of the serv- 
 ice. (27 Op. Atty. Gen., 221.) 
 
 A special act of Congress which authorizes 
 the Secretary of the Na\y to transfer an officer 
 on the retired list ' ' from the half- pay list to th e 
 75 per centum list under section fifteen hun- 
 dred and eighty-eight Re\dsed Statutes," 
 will not operate to change his status from that 
 of an officer retired for incapacity not incident 
 to the ser\dce to that of an officer retired for 
 incapacity incident to the ser\ice. (Morse v. 
 U. S., 46 Ct. Cls., 361, 229 U. S., 208.) 
 
 Courts without power to review finding 
 of board. — ^^^lere an officer of the Army has 
 
 620 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1454. 
 
 been examined for promotion, and upon fail- 
 ure to qualify is honorably discharged from 
 the service, the courts are without jurisdiction 
 to order him placed on the retired list upon his 
 petition setting forth that he had been found 
 by a board physically incapacitated for service 
 and that he was thereby entitled to be retired 
 and entitled to retired pay during life, in- 
 stead of being dismissed with one year's pay. 
 The report of the board is not final, but must 
 be approved or disapproved by the President. 
 This is the only relief from the errors or injus- 
 tice that may be done by the board which is 
 provided. The courts have no power to re- 
 view. The courts are not the only instrumen- 
 talities of the Government. They cannot 
 command or regulate the Army. To be pro- 
 moted or retired may be the right of an officer, 
 the value to him of his commission, but greater 
 even than that is the welfare of the country 
 and it may be, even its safety, through the 
 efficiency of the Army. Decisions of State 
 courts relating to the militia cannot sustain 
 the right to review examining boards in the 
 Army. There is a wide difference between the 
 Regular Army of the Nation and the militia of a 
 State when not in the service of the Nation; 
 and more rigid rules and a higher state of disci- 
 pline are required in the one case than in the 
 other. (Reaves v. Ainsworth, 219 U. S., 296.) 
 
 Transfer from furlough to retired pay 
 list no longer authorized. — An officer re- 
 tired on furlough pay under section 1454, Re- 
 vised Statutes, can not be transferred to the 
 retii-ed pay list under section 1594, Revised 
 Statutes, with increase of pay; such increase is 
 forbidden by the act of August 5, 1882 (22 Stat., 
 286), providing that "hereafter there shall be 
 no promotion or increase of pay in the retired 
 list of the Navy, but the rank and pay of officers 
 on the retired list shall be the same that they 
 are when such officers shall be retired." (18 
 Op. Atty. Gen., 96.) 
 
 Nor can an officer be simultaneously retired 
 on furlough pay and transferred to the retired 
 pay list, so as to give him the pay of the latter. 
 (18 Op. Atty. Gen., 96.) 
 
 The provision of the act of August 5, 1882 (22 
 Stat., 286), prevents either rank or pay of offi- 
 cers on the retired list from being increased in 
 any way after siich officers shall have been 
 placed thereupon. (18 Op. Atty. Gen., 96.) 
 
 The power of the President to make such 
 transfer depends by the section upon the fact 
 that the officer is already upon the retired list, 
 whether he has been so for a minute or longer. 
 Whatever time, therefore, may have elapsed 
 since the officer has been put upon that list has 
 elapsed, of course, a/^er that point of time which 
 fixes the pay of all retired officers. There can 
 be no contemporaneous occurrence of the act 
 by which an officer is retired upon the furlough- 
 pay list and of that by which he is transferred 
 therefrom. The former precedes the latter 
 necessarily; and so its effect in fixing pay pre- 
 cedes the existence of any question as to the 
 effect of transfer thereupon. In other words, 
 the transfer finds the pay already fixed by the 
 act of August 5, 1882. (18 Op. Atty. Gen., 96.) 
 
 [There is now no increase of pay involved by 
 the transfer of an officer from the fiu-lough to 
 the retired pay List, as fiu-lough pay is now the 
 
 same as the 50 per cent retired list. See note to 
 section 1593, Revised Statutes.] 
 
 One year's pay allowed officer -whoUy 
 retired is not a gratuity. — The one year's 
 pay provided for by section 1275, Revised Stat- 
 utes, for an officer of the Army wholly retired 
 from the service is not in the nature of a gratu- 
 ity, but is compensation for services rendered, 
 and upon the death of the officer before pay- 
 ment thereof it is payable to his legal represent- 
 ative. (7 Comp. Dec, 404; see also Hotchkin 
 V. V. S., 24 Ct. Cls., 18; butsee note to sec. 1456, 
 R. S., under "Act of Aug. 5, 1882, not a penal 
 statute. ' ') 
 
 Officer wholly retired not required to 
 refund year's pay upon reappointment.^ 
 Where an officer who had been honorably dis- 
 charged from the Army with one year 's pay and 
 allowances was reappointed to the Army, upon 
 nomination and confirmation by the Senate, he 
 was not required to refund the amount of his 
 pay on discharge, though the War Department 
 attempted to require same as a condition pre- 
 cedent to his second appointment. As a con- 
 dition it is void and of no effect. (14 Op. Atty. 
 Gen., 230; see also 15 Op. Atty. Gen., 177; 
 Katzer v. U. S., 52 Ct. Cls., 32.) 
 
 Reconsideration by board of its find- 
 ing. — Where a naval retiring board convened 
 to inquire into the nature and cause of the 
 disability of an officer has once finished its 
 work, rendered a complete judgment in the 
 case, and adjourned, a subsequent reconsidera- 
 tion of its judgment by the board, unless 
 authorized or directed by proper authority, 
 can have no legal effect. Accordingly, upon 
 examination of the record of proceedings before 
 a naval retiring board in the case of Paymaster 
 Rodney, held, that the paper attached to the 
 record called a reconsideration of the finding 
 of the board was without legal effect and that 
 the officer was properly retired under the orig- 
 inal finding of the board on furlough pay. (16 
 Op. Atty. Gen., 104; see also 15 Op. Atty. 
 Gen., 316.) 
 
 A probationary dental surgeon serving 
 under appointment issued by the President, 
 by and with the advice and consent of the 
 Senate, in accordance with the act of August 
 29, 1916 (39 Stat., 573), may be wholly retired 
 under this section, notwithstanding the pro- 
 vision in said act that such appointments ' 'may 
 be revoked at any tim? during the probationary 
 period by the President." (See file 26253-550, 
 Feb. 18, 1918.) 
 
 Order retiring marine officer on furlough 
 pay is without authority of law. — An 
 officer of the Marine Corps was examined by a 
 retiring board convened by the Secretary of 
 the Navy and found incapacitated for active 
 service for causes ' ' not an incident of the serv- 
 ice." The President made the following in- 
 dorsement on the record of the proceedings and 
 finding of the board : " I conciu: in opinion with 
 the retii'ing board in the case of First Lieut. 
 George M. Welles. Let him be retired on fur- 
 lough pay." The officer was advised of this 
 action by the Acting Secretary of the Navy, 
 and notified that he would be considered as 
 retired on fiu-lough pay from that date. The 
 retii-ement of officers of the Marine Corps was 
 governed by sections 1622 and 1623, Revised 
 
 621 
 
Sec. 1456. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Statutes. The board was lawfully convened 
 in accordance with those sections. For officers 
 of the Marine Corps who are retired from active 
 service, as for odicers of the Ai'my who are so 
 retired, there ia but one rate of pay established 
 by law, and it is not competent for the President 
 to place these retired officers on a different rate 
 of pay than that which the law has fixed. The 
 first sentence of the indorsement of the Pres- 
 ident upon the record admits of no other con- 
 struction than that it was meant to express his 
 approval of the finding of the board. Having 
 thus approved the finding of the board, it rested 
 entirely in his discretion whether Lieut. 
 Welles should be retired from active service or 
 wholly retired from the ser\dce. But it was 
 necessary that one or the other be done, as the 
 law is imperative that when the decision of 
 the board ia approved by the President the 
 
 officer "shall be retired," etc. The direction 
 given in the last sentence of the indorsement 
 clearly indicates that it was the determination 
 ©f the President that Lieut. Welles be retired 
 from active sor\'ice simply. The compensation 
 of an officer thus retii'ed being fixed by statute 
 and not left to be determined by the President, 
 in so far as that dkection applies to the pay of 
 Lieut. Welles on the retired list it must be 
 treated as of no effect. It may well be that the 
 indorsement was prepared inadvertently, it 
 being supposed that the law which applies to 
 officers of the Navy (who may be retired upon 
 furlough pay if the reason for their retirement 
 was not an incident of the service) applies to 
 officers of the Marine Corps. Such, however, 
 is not the case ; for the Marine Corps different 
 legislation is provided. (15 Op. Atty. Gen., 
 442.) 
 
 Sec. 1455. [Officers not to be retired without a hearing.] No officer of the Navy 
 shall be retired from active service, or wholly retired from the service, without 
 a full and fair hearing before such Navy retiring-board, if he shall demand it, 
 except in cases where he may be retired by the President at his own request, 
 or on account of age or length of service, or on account of his failure to be 
 recommended by an examining board for promotion. — (3 Aug., 1861, c. 42, 
 s. 23, V. 12, p. 291.) 
 
 Retirement of officers upon their own request 
 is provided for by section 1443, Reviseid 
 Statutes; act of May 13, 1908 (35 Stat. , 128); 
 and act of March 3, 1899, section 8 (30 Stat., 
 1006). 
 
 Retirement of officers for age is provided for 
 by section 1444, Revised Statutes, as 
 amended by act of August 29, 1916 (39 Stat, 
 579); see also section 1481, Revised Statutes. 
 
 Retirement of officers not recommended for 
 promotion is provided for by section 1447, 
 Revised Statutes. 
 
 Retirement of officers upon selection by a board 
 of rear admirals, for the purpose of creat- 
 ing vacancies, was provided for by act 
 of March 3, 1899, section 9 (30 Stat., 1006), 
 since repealed. 
 
 "Wholly retired from the service:" Authority 
 for such retirements is contained in sec- 
 tion 1455, Revised Statutes. 
 Full and fair hearing. — The statute pro- 
 viding that no officer of the Army shall be re- 
 tired , either partially or wholly, without having 
 had a full and fair hearing, does not authorize 
 the President to send a case back to a retiring 
 board if he has once approved and acted upon 
 its report. W^hen the President approves and 
 acts upon the report of a retiring board , he there- 
 by determines that the officer has had "a full 
 and fair hearing." (Miller v. U. S., 19 Ct. 
 Cls., 338. Compare note to sec. 1503, R. S.) 
 
 Failure of oflS.cer to demand hearing 
 as constituting waiver. — See note to section 
 1503, Revised Statutes. 
 
 Sec. 1456. [Officers not to be retired for misconduct.] No officer of the 
 Navy shall be placed on the retired list because of misconduct; but he shall be 
 brought to trial by court-martial for such misconduct. — (15 July, 1870, c 
 295, s. 6, V. 16, p. 333.) 
 
 Similar provisions with reference to officers fail- 
 ing upon examination for promotion by 
 reason of drunkenness or other misconduct, 
 and a requirement that such officers shall 
 be discharged with not more than one 
 year's pay, are contained in act of August 
 5, 1882 (22 Stat., 286). 
 Statute of limitationsfor trialsby court-martial: 
 See section 1624, Revisecl Statutes, articles 
 61 and 62, which articles were added to that 
 sectionbyactof February 25, 1895(28 Stat., 
 680). 
 Trials of officers by general courts-martial are 
 provided for by section 1624, Revised 
 Statutes. 
 "Offenses shall not be allo-wed to accumu- 
 late, in order that sufficient matter may thus 
 
 be obtained for a trial, without giving due 
 notice to the offender." (Art. R-1411, Navv 
 Regs., 1913.) 
 
 Misconduct not ground for retirement.- 
 Section 1456, Revised Statutes, specifically 
 prohibits retirement of officers of the Navy on 
 account of misconduct and requires they be 
 brought to trial therefor by court-martial; and 
 there is no doubt that the same principle must 
 be recognized in the construction of the laws 
 relating to the retu-ement of officers of the 
 Army. (27 Op. Atty Gen., 14.) 
 
 An officer of tii e Army can not be retired under 
 the provisions of sections 1245-1252, Revised 
 Statutes, if he could have been properly brought 
 to trial by court-martial for the same acts or 
 omissions which are alleged as evidence of the 
 
 622 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1456. 
 
 incapacity justifj-ing his retirement. If he 
 displays impatience or irritability, imperfect 
 control of his temper, indolence, indecision, 
 and want of alertness to such an extent as to 
 destroy or gravely impair his usefulness, it 
 ■would seem almost, indeed quite, incredible 
 that he should not have been guilty of some 
 breach of the Articles of War. If his excesses 
 in eating and drinking have been sufficient 
 to incapacitate him for the discharge of his 
 duties, this may constitute a clearly appro- 
 priate ground for disciplinary action, but 
 inasmuch as these indiscretions are e^"idently 
 voluntary on his part, they can not of them- 
 selves constitute an incapacity justifying 
 retirement. (27 Op. Atty. Gen. , 14.) 
 
 If any of the matters referred to as objection- 
 able in an officer are in \T.olation of the law or reg- 
 ulations of the service, he is subject to its 
 discipline; but they do not subject him to 
 compulsoiy retirement unless they render 
 h i m incapable of performing the duties of 
 his office when he is willing and desires to do 
 so. (27 Op. Atty. Gen., 162.) 
 
 The pro\-ision3 of the retirement laws are 
 in no sense disciplinary or punitive in their 
 purpose. The punishment of officers for 
 willful failure to discharge their duty can not 
 be legally effected through the agency of a 
 retiring board ; and in dealing with questions of 
 this character, the law assumes the freedom of 
 the human will in a person compos mentis and 
 legally responsible for his actions. (27 Op. 
 Atty. Gen., 14.) 
 
 Retired Kst intended only for the 
 worthy. — All officers who in the judgment of 
 the board and of the President were unworthy 
 of official confidence and public favor have 
 from time to time been excluded entirely from 
 the Na\-y; the reserved list being presumably 
 composed of persons whose professional educa- 
 tion and standing are deserving of respect and 
 available for the benefit of the Government, 
 though in different degrees, depending partly 
 on the personal merit of the officers, partly on 
 opportunity and exigency, partly on their 
 relative numbers, partly on public economy. 
 (12 Op. Atty. Gen., 222.) 
 
 In regard to the contention that officers 
 mentally, morally, and professionally dis- 
 qualified are often found upon the retired list, 
 I would suggest that it was never contemplated 
 by the legislature that the retired list would 
 to any extent be occupied except by those 
 who had performed honorable service and were 
 retired by reason of disability incurred in that 
 8er\-ice. (17 Op. Atty. Gen., 36.) 
 
 Temperamental unfitness not miscon- 
 duct.— See note to section 1448^ Revised 
 Statutes. 
 
 OFFICERS TO BE DISCH.\RGED, AND NOT RETIRED, 
 WHEN FOUND BY PROMOTION BOARD UNFIT 
 FROM CAUSES DUE TO MISCONDUCT. 
 
 Historical: Act August 5, 1882, applies 
 to moral unfitness.— At the time the act of 
 1882 (22 Stat., 286) was pending in Congress, 
 officers of the Na\y, prior to promotion, were 
 required by sections 1493, 1496, 1497, and 1504, 
 Re\ised Statutes, to establish by examination 
 their physical, mental, moral, and professional 
 
 fitness to perform all the duties at sea of the grade 
 to which they were to be promoted . Should the 
 candidate on examination fail physically, his 
 case was pro\ided for by other statutes estab- 
 lishing retiring boards and defining their 
 powers; if, on the other hand, he failed pro- 
 fessionally, his case came within section 1505, 
 pro\iding that officers so failing should be sus- 
 pended from promotion and then reexamined, 
 and in case of failure upon reexamination, 
 "shall be dropped from the service;" if the 
 candidate ^ was found by both the medical 
 and examining boards to be not qualified for 
 promotion, under section 1447 of the Re\'ised 
 Statutes he was to be placed on the retired 
 list [but see note to section 1447, Revised 
 Statutes, as to whether both boards must have 
 rejiorted unfavorably]. WTiere, however, he 
 was found not morally qualified for promotion, 
 although physically, mentally, and profes- 
 sionally competent, his case was not specifically 
 prowled for by law. He could not be pro- 
 moted, because of thepro\'isions of section 1 of 
 the act of April 21, 1864 (13 Stat., 53), now in- 
 corporated in section 1496 of the Revised 
 Statutes. Neither could he be discharged from 
 the service, because of the act of July 13, 1866 
 (14 Stat., 92), now sec-tion 1229, and article 36 
 of section 1624, Re\'ised Statutes. On the 
 other hand, under the_ laws, customs, and 
 usages of the naval service, no officer who is 
 unable to establish his fitness for promotion can 
 be retained indefinitely in a fixed position on 
 the Na\'y list delating promotions all along the 
 line, but an officer who is due for promotion 
 must either be promoted or make way for those 
 below him, as the law requires all promotions 
 in the Na\'y to be made according to seniority. 
 [But see notes to sections 1458 and 1480, Re- 
 \dsed Statutes, to effect that promotions are no 
 longer required to be made by seniority in all 
 cases.] Under these circumstances the practice 
 developed in the cases of officers who failed 
 morally upon examination for promotion, al- 
 though otherwise qualified, of placing them on 
 the retired list "under the first section of the 
 act of April 21, 1864, as not recommended for 
 promotion" (e. g., case of Master Fred'k E. 
 Upton, vol. 28, Ex. Bd. Recs., No. 34, morally 
 disqualified because "insubordinate in dis- 
 position;" p. 174 Na\'y Register, 1910; Da\ds 
 Admr. v. U. S., 24 Ct. CIs., 442). Under this 
 state of law the bill now incorporated in the 
 act of 1882 was introduced in Congress "to 
 promote the efficiency of the Navy," and was 
 attached as an amendment to the naval appro- 
 priation bill in the House by unanimous con- 
 sent. That the purpose of this legislation was 
 to abolish the practice of placing upon the 
 retired list of the Navy officers who had failed 
 to qualify for promotion by reason of moral 
 deficiency can hardly be seriously questioned. 
 However, if a doubt could exist it would be 
 set at rest once for all by reference to the report 
 of the Committee on Naval Affairs of the House 
 in recommending favorable action upon this 
 measure [citing Holy Trinity Church v. U. S., 
 143 U. S., 465, noted in "Introduction," under 
 "Statutory Construction," VI, D, 3J. The 
 committee report stated: "Under the law, as 
 it now exists, many officers who have been edu- 
 cated at the expense of the Government and 
 
 623 
 
Sec. 1456. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 who have durmf); their service contracted 
 habits of intem])erau(e and other immoral prac- 
 tices which disqualify them for the honorable 
 Sosition of an ofhcer in the United States 
 avy, are placed on the retired list, and their 
 services are lost to the Government, \yhen, 
 but for their conduct, they would remain on 
 the active list. Therefore, your committee 
 recommend the passage of this bill with an 
 amendment, so that the Government may rid 
 itself of a lot of useless official material." 
 (File 26260-1392, June 29, 1911, pp.5, etseq.) 
 
 The report of the committee shows that this 
 legislation was not intended to be limited in 
 its scope to officers who are physically or 
 mentally unfit for sea service by reason of 
 their own misconduct, but was intended to 
 apply to those officers who, while physically, 
 mentally, and professionally qualified in every 
 respect to perform the duties of their grade, 
 might still be unfit to maintain discipline and 
 exercise command over hundreds of men whose 
 respect they had forfeited by habits resulting 
 in a reputation discreditable to the "honorable 
 position of an officer of the Navy." Such 
 officers were not entitled to be placed on the 
 retired List of the Navy, which was intended 
 as a reward for long and faithful service, and 
 not as a refuge for "a lot of useless official 
 material," whose worthlessness was due to 
 their own misconduct, and the practice of re- 
 tiring such officers was the evil which Congress 
 intended to remedy. (File 26260-1392, June 
 29, 1911, p. 8.) 
 
 This very provision of the act of 1882 has been 
 before the courts and held to authorize the 
 discharge of an officer who was found by the 
 promotion boards to be physically, mentally, 
 and professionally, but not morally qualified 
 for promotion. (File 26260-1392, June 29, 
 1911, p. 18, citing Jouett v. U. S., 28 Ct. 01s., 
 257.) 
 
 In general, under section 1456, Revised Stat- 
 utes, and theactof Augusts, 1882, misconduct 
 is not a ground for retirement. However, an 
 officer who fails to qualify for promotion is 
 subject to discharge under the latter act only 
 as the result of a finding of moral disquah- 
 fication. (File 26260-874, June 3, 1910.) 
 
 Retirement of officer found not morally 
 qualifi.ed for promotion. — See note to section 
 1447, Revised Statutes. 
 
 What constitutes moral iixtfitness. — ^Any 
 discussion of the question whether an officer 
 can be morally unfit for promotion without 
 his mental, professional, or physical qualifi- 
 cations being affected, becomes purely idle 
 and academic in view of the fact that Congress 
 has itself, by express language in the act of 
 April 21, 1864 (sec. 1496, R. S.), provided that 
 no officer shall be promoted to a higher grade 
 until his moral, as well as his mental, profes- 
 sional, and physical fitness shall have been 
 established to the satisfaction of the board of 
 examining officers. (File 26260-1392, June 29, 
 1911, p. 10.) 
 
 "An officer may be 'incapable,' either 
 mentally, physically, or morally; for although 
 he may possess a strong mind and robust 
 frame, yet if his moral perception of right and 
 wrong be so blunted and debased as to render 
 him unreliable, he could hardly be regarded 
 
 as the capable officer to be intrusted with the 
 lives of his countrymen and the property and 
 honor of his country." (8 Op. Atty. Gen., 
 223, 233.) 
 
 No specific definition of what constitutes 
 moral unfitness is desirable or should be 
 attempted. A similar question was considered 
 by the Court of Claims in the case of Swaim 
 V. U. S. (28 Ct. Cls., 173), with reference to 
 what constitutes conduct unbecoming an 
 officer and a gentleman or conduct to the 
 prejudice of good order and discipline, the 
 court stating that tliis is "beyond the bounds 
 of exact formula, and must depend more or 
 less upon the circumstances and peculiarities 
 in each case." The question should, accord- 
 ingly, be left to be determined by "a board of 
 experienced, intelligent, impartial, miUtary 
 experts * * * in the exercise of a sound 
 discretion." (File 26260-1392, June 29, 1911, 
 p. 10.) 
 
 That the legislation was not intended to 
 apply only to officers whose misconduct re- 
 sulted in actual want of capacity to serve at sea 
 is shown by the fact that, as it passed the 
 Senate, it read "from any cause arising from 
 his misconduct or want of capacity not caused 
 by or in consequence of the performance of his 
 duty," but the House Committee on Naval 
 Affaii-s, in accordance with its views on the 
 subject as stated in its report above quoted, 
 recommended that the words italicized be 
 stricken from the bill, which recommendation 
 was followed and the bill as thus amended was 
 passed with certain immaterial changes as a 
 clause of the naval appropriation act. (File 
 26260-1392, June 29, 1911, p. 9.) 
 
 In any event, a case of repeated failure to 
 discharge indebtedness is obviously an instance 
 of moral unfitness for promotion. (File 26260- 
 1392, June 29, 1911, p. 11.) 
 
 It is not a private matter of concern to the 
 officer only, but in the Navy an officer's neglect 
 to pay just indebtedness is a matter of concern 
 to the entire service, of which he is a part, and 
 renders him unfit for the duties of his position. 
 (File 26260-1392, June 29, 1911, p. 11.) 
 
 Evidence that included a list of cases in 
 which an officer had failed to liquidate in- 
 debtedness admitted to be just; that he had 
 been convicted by general court-martial upon 
 the charges of scandalous conduct tending to 
 the destruction of good morals and conduct 
 unbecoming an officer and a gentleman, in 
 that he had been expelled from an Army and 
 Na\^ club for nonpayment of his indebtedness 
 to the club and for breaking his promise to 
 arrange for such payment, clearly justified the 
 finding of the board that he was not morally 
 qualified for promotion. (File 26260-1392, 
 June 29, 1911, p. 12. But see President 
 Tail's ruling in this case, noted below.) 
 
 In the case noted in the preceding paragraph, 
 it was reported by the examining board, 
 June 21, 1911: "After duly deliberating on all 
 the matters herein referred to, the board 
 believes that the candidate did not use his 
 utmost exertions toward Liquidating his debts 
 as quickly as possible, but that from the con- 
 traction of the ffi-st debts to the payment of the 
 last one, on June 14, 1911, he has shown a 
 degree of moral turpitude which unfits liim for 
 
 624 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1456. 
 
 promotion." The Secretary of the Navy 
 recommended approval of the board's finding. 
 President Taft's decision in the case was as 
 follows: "I am not satisfied from the showing 
 made that Lieut. Burt's character has been 
 shown to be such as to unfit him morally for 
 promotion. Of course, the failure to pay 
 debts and the circumstances under which the 
 debts were contracted, when their payment is 
 postponed or neglected, may constitute con- 
 duct unbecoming an officer. But here the debts 
 have been paid; and they were not so great 
 in amount or so many as to indicate utter 
 recklessness when it is considered that Lieut. 
 Burt is a married man and, necessarily, had 
 the expense of a family upon Mm in addition 
 to that attendant upon his sea service; I am 
 bound to say that the specifications wMch 
 were handed to me as to the immorality in- 
 volved in Ms relation to debts seem to be, 
 many of them, strained, and I can not tMnk 
 that it is just to eliimnate Mm from the naval 
 service for such delinquency." (File 26260- 
 1392:15, Jan. 2, 1912.) 
 
 Passed Asst. Paymaster Louis A. Yorke was 
 examined for promotion December 14, 1886; on 
 December 17, 1886, the board reported him 
 mentally but not professionally or morally 
 qualified. The evidence upon which the board 
 based its findings that he was not morally quali- 
 fied for promotion consisted principally of sev- 
 eral complaints which had been made against 
 him to the department, consisting of alleged 
 indebtedness to individuals, and of neglect, 
 refusal, or evasion to pay the same." He was 
 found by the medical board to be "physically 
 qualified to perform all his duties at sea." In 
 accordance with the Navy Department's rec- 
 ommendation, the President approved the 
 findings of the boards, February 19, 1887, and 
 the officer was discharged with one year's pay. 
 Subsequently bills were repeatedly intro- 
 duced in Congress "for the relief of Louis A. 
 Yorke, ' ' one of which, providing for his restora- 
 tion to the Navy and immediate retirement, 
 passed both Houses during the Fifty-third Con- 
 gress, second session , but was vetoed by the Pres- 
 ident. The message of the President, returning 
 the bill to Congress without his approval, August 
 11, 1894(26 Cong. Rec, 8411), was in part as fol- 
 lows: "Considerable evidence was before the 
 board showing quite a large amount of personal 
 indebtedness owing by the candidate, and it 
 appeared that in a few instances his accounts 
 with the Navy Department had not been 
 promptly settled. It was also shown that he 
 did not at all times deposit the Government 
 money intrusted to his care in the places re- 
 quired by law and the regulations of the Navy. 
 In connection with his personal indebtedness, 
 incidents and circumstances were brought to 
 light which certainly indicated that he enter- 
 tained very lax ideas of honest dealing and 
 fairness, and wMch developed a disregard of the 
 obligations and requirements of his position as 
 an officer in the Navy. He was given abundant 
 opportunity to meet and explain every damag- 
 ing allegation and every adverse inference aris- 
 ing from the evidence, and his claim, not with- 
 out foundation it appeared, that the charges 
 against him were instigated by malice, was 
 doubtless given full weight. * * * On the 
 
 facts as ])resented he would seem to be out of 
 place among those who, though still compen- 
 sated by the Government, have been, on account 
 of age, long and honorable service, or disabili- 
 ties incurred in the discharge of duty, relieved 
 from fmther activity. * * * I have no 
 doubt malicious feeUng, growing out of domes- 
 tic difficulties, entered into the affair and gave 
 impetus to the search after inculpating evi- 
 dence; but facts were nevertheless established 
 beyond any reasonable doubt wMch abun- 
 dantly uphold these findings." Bills to the 
 same effect were subsequently introduced in 
 Congress from time to time, but the measure 
 was never again passed by both Houses. (See 
 file 26260-1392, June 29, 1911.) 
 
 Boatswain Louis W. Sopp was examined for 
 promotion March 1, 1906; the examimng board 
 found that he had ' ' the mental and professional, 
 but not the moral qualifications, by reason of 
 his failure to pay his debts, which is a result 
 of his own misconduct, to perform efficiently 
 all his duties, both at sea and on shore, of the 
 grade to which he is to be promoted," and the 
 board therefore did not recommend him for 
 promotion. The Secretaiy of the Navy recom- 
 mended President's approval, April 9, 1906, 
 stating: "Approval of this finding would result 
 in his discharge from the service pursuant to 
 theactof Augusts, 1882, * * *. Persistent 
 failure, without adequate cause, to meet just 
 pecumary obligations is regarded as a proper 
 basis for a finding of moral disqualification 
 under this provision. The Bureau of Naviga- 
 tion and the Judge Advocate General recom- 
 mend approval of the finding. In this recom- 
 mendation I concur. Mr. Sopp has afforded 
 no satisfactory explanation of his many delin- 
 quencies in paying his debts. In all the cases 
 above mentioned payment was unduly delayed 
 * * *; and in some iastances promises of 
 prompt payment appear to have been lightly 
 broken. Such conduct as that of Mr. Sopp in 
 these matters can not but bring discredit upon 
 the service, both at home and abroad, and it 
 shows, in the judgment of the department, that 
 the offender is out of place as an officer in the 
 Navy. I advise that the finding of the naval 
 examimng board be approved, and that Mr. 
 Sopp be discharged with one year's pay pur- 
 suant to the act of 1882." On April 10, 1906, 
 the finding and recommendation of the naval 
 examining board were approved by the Presi- 
 dent, and Boatswain Sopp directed to be dis- 
 charged with one year's pay. (See file 26260- 
 1392, June 29, 1911.) 
 
 Gunner George L. Mallery was examined 
 October 12, 1904. Board found "that Gunner 
 George L. Mallery, U. S. Navy, has the 
 mental and professional, but not the moral 
 qualifications, by reason of failure to pay his 
 just debts, which is the result of his own mis- 
 conduct, to perform efficiently all the duties, 
 both at sea and on shore, of the grade to which 
 he is to be promoted, and do not recommend 
 him for promotion." The Secretary of the 
 Navy, February 28, 1905, recommended Presi- 
 dent's approval, stating: "The act of August 
 5, 1882, provides that * * * . The de- 
 partment regards tMs provision of law as appli- 
 cable to the case under consideration. I advise 
 that the findings of the naval examining board 
 
 625 
 
Sec. 1456. 
 
 Ft. 2. REVISED STATUTES. 
 
 The Navy. 
 
 bo approved, and that Mr. Mallory be dis- 
 charged with one year's pay, pursuant to the 
 act cited." This recommendation was ap- 
 proved and the officer dischai'sjed accordingly. 
 (See file 26200-1392, June 29, 1911.) 
 
 Lieut. Robert 11. Osborne, U. S. Na\^, 
 ■was examined for promotion, June 9, 1908, 
 an(i found mentally but not morally or pro- 
 fessionally (qualified, his moral failure being 
 due to indifference in contracting financial 
 obligations which he was unable to discharge. 
 Upon reconsideration the board reported: 
 "The board respectfully adheres to its original 
 decision, and in doing so respectfully invites 
 attention to the fact that the deficiency found 
 in moral qualifications was not the failure of 
 Lieut. Osborne to pay the debt owed Mr. W. E. 
 Rouse as such , but his failure to keep his written 
 
 Eromise to pay in a certain time and method, 
 is failure to show any practical reason for such 
 neglect of his promise, and his failure to meet 
 his obligations in the sense of making any ar- 
 rangement with his creditor after the matter 
 had been brought to his attention by the de- 
 partment. In the opinion of the board such 
 absolute neglect and indifference to his obliga- 
 tions and to his promise show a standard of 
 morals below that which should be required of 
 naval officers. ' ' It was contended that, ' ' while 
 liability to intoxication would undoubtedly 
 render an officer imfit, it is inconceivable that 
 the existence of indebtedness would impair 
 his ability to perform sea duty" within the 
 meaning of the act of August 5, 1882. The 
 Judge Advocate General and the Secretary of 
 the Navy recommended that the finding of the 
 board be approved by the President, and that 
 Lieut. Osborne be discharged with one year's 
 pay. Counsel submitted an additional brief 
 to the President, who ad^dsed the Secretary of 
 the Navy that he was inclined to be as lenient 
 as possible for the reason that this officer had 
 contracted a physical disability in the line of 
 duty and in the face of the enemy; but in view 
 of the finding of the board, he did not think it 
 to the interest of the Navy that the officer be 
 retained on the active list; and added: "Would 
 it not be possible to make an arrangement 
 whereby he would be retired, of course pro- 
 vided that his debts should be paid before he 
 is retired . " In response, the Secretary of the 
 Navy, June 29, 1908 (file 26260-38), informed 
 the President that the case of this officer was 
 within the provision of the act of August 5, 
 1882, "and it is therefore mandatory, if you 
 approve the proceedings and findings of the 
 majority of the board, that he be not retired." 
 The Secretary further stated: "The only alter- 
 native would be that you disapprove the pro- 
 ceedings and findings, or the findings, of the 
 board of which Rear Admiral Richardson 
 Clover, U. S. Navy, is president, in which 
 case the status of Mr. Osborne would revert 
 to that which he occupied before he was 
 examined, and a new examining board would 
 be ordered before which he would be required 
 to appear as in the first instance." The Presi- 
 dent thereupon approved the findings and 
 recommendation of the board, July 3, 1908, 
 and the officer was accordingly discharged with 
 one year's pay. (See file 26260-1392, June 29, 
 1911.) 
 
 Boatswain Alfred H. Hewson was examined 
 by a naval examining board, May 3, 1909. 
 Board found: "That Boatswain Alfred H. 
 Hewson, U. S. Na\y, has the mental, but 
 not the moral nor the professional qualifica- 
 tions, to perform efficiently all the duties, both 
 at sea and on shore, of the grade to which 
 he is to be promoted, and do not recommend 
 him for promotion." The Acting Secretary of 
 the Navy, May 17, 1909, recommended ap- 
 proval of the board 's finding, stating as follows: 
 "Upon re\-ie-«ang the case it appears that Mr. 
 Hewson has been habitually intemperate and 
 that he has shown a lack of proper and officer- 
 like appreciation in his methods of dealing 
 with his financial affairs. * * * j have, 
 therefore, to advise that the findings of the 
 naval examining board be approved, and that 
 Boatswain Alfred H. Hewson, U. S. Navy, be 
 discharged with one year 's pay in conformity 
 with the provisions of the act of August 5, 
 1882 . ' ' This recommendation was approved by 
 the President and the officer discharged accord- 
 ingly. (See file 26260-1392, June 29, 1911.) 
 
 Gunner Edmund DuB. Gould was examined 
 for promotion April 4, 1908; the examining 
 board found that he had the mental, but 
 not the professional fitness, and from the un- 
 favorable evidence before it the board was not 
 satisfied as to his moral fitness and did not 
 recommend him for promotion. Upon a second 
 appearance before an examining board it was 
 found that he had the mental, but not the moral 
 and professional qualifications, by reason of his 
 failure to pay his debts, and not making the 
 percentage necessary to qualify, and he was 
 not recommended for promotion. The Judge 
 Advocate General, in his comment on the above 
 case, said in part: "There are eight cases in 
 which the Bureau of Na\'igation referred com- 
 munications to this officer concerning instances 
 of indebtedness which had been brought to the 
 bureau's attention, to none of which did he 
 make reply. With regard to these debts, it 
 appears that the one due * * * -v^as con- 
 tracted prior to April, 1907, and probably some 
 time before that, but it was only discharged on 
 October 18, 1908, shortly before being ordered 
 to appear for examination. Concerning the bill 
 owed to * * * it appears that it had been 
 running for at least a year, and that Mr. Gould 
 onljr paid it so recently, if at all, that he was 
 awaiting a receipt. The candidate was given 
 an opportunity to show by documentary evi- 
 dence or otherwise that he had liquidated all 
 claims against him, but instead of doing so he 
 made no further communications to the board 
 until he was again ordered to appear by the 
 department. Even then he could present no 
 receipts, or at least did not do so, which did 
 not create a favoral^le inference. In view of 
 this persistent neglect to pay his debts, and his 
 further neglect to reply to the letters addressed 
 to him upon these matters, * * * and his 
 failure to adduce anything while before the 
 examining board to substantiate the statements 
 that he had paid certain of his debts, it is recom- 
 mended that the finding of the naval examining 
 board in this case be approved." The Secre- 
 tary of the Navy recommended approval of the 
 board 's finding , stating in part : ' ' From a rf /view 
 of the record of proceedings of the naval examin- 
 
 626 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1456. 
 
 ing board , it would appear that this officer has 
 persistently neglected to pay his debts, that he 
 has failed to reply to communications addressed 
 to him officially upon these matters, and that he 
 has failed to m^ake any satisfactory explanation 
 or excuse for his remissness in the above particu- 
 lars. ' ' The board 's finding was approved by 
 the President, and the officer discharged ac- 
 cordingly. (See file 26260-1392, June 29, 1911.) 
 
 In the case of Passed Asst. Surg. Frederick 
 W. Olcott, Deceml)er 4, 1900, the board stated: 
 "We hereby certify that Passed Asst. Surg. 
 Frederick W. Olcott, United States Navy, has 
 the mental but not the moral or professional 
 qualifications to perform efficiently all the 
 duties, both at sea and on shore, of the grade 
 to which he is to be promoted, and we do not 
 recommend him for promotion. This conclu- 
 sion is based upon adverse reports furnished by 
 the Navy Department, embraced in reports on 
 fitness, special reports, and record of a general 
 com-t-martial, charging drunkenness, improper 
 use of drugs, unreliability, neglect of duty, and 
 failure to pay bills. These reports and Passed 
 Asst. Surg. Olcott 's replies thereto, have been 
 carefully considered. Taken separately they 
 indicate a feeble sense of official responsibility, 
 and collectively a degree of moral dullness 
 that does not warrant recommendation for pro- 
 motion." Board's finding approved by the 
 President and officer discharged. (See file 
 26260-1392, June 29, 1911. Note: This officer 
 was restored to the Navy and placed upon the 
 retired list, pursuant to a special act of Congress, 
 approved Feb. 13, 1911.) 
 
 In the case of Passed Asst. Paymaster Edwin 
 B. Webster, January 6, 1898, the report was as 
 follows: "The board decided that Passed 
 Asst. Paymaster Edwin B. Webster, U. S. 
 Navy, has the mental and professional, but not 
 the moral qualifications, by reason of the facts 
 mentioned in the charges formulated by the 
 board from the record, which are a result of 
 his own misconduct, to perform efficiently all 
 his duties, both at sea and on shore, of the grade 
 to which he is to be promoted, and do not 
 recommend him for promotion." The charges 
 formulated by the board were as follows: "1st. 
 Habits of gambling, as indicated by the letter 
 of F. L. Crompton, of Shanghai, China, dated 
 July 26, 1897. 2d. Carelessness in the settle- 
 ment of debts, as indicated by the correspond- 
 ence between the candidate and his creditors 
 and the Navy Department. 3d. Transactions 
 of the candidate characterized as 'disgraceful ' 
 and 'scandalous, ' by the Secretary of the Navy, 
 and published in General Court-Martial Order 
 No. 76, dated July 28, 1896." The members 
 of the board recommended, in a letter to the 
 Navy Department, that "he be put on proba- 
 tion for the period of one year," etc. March 
 4, 1898, the finding of the naval examining 
 board was approved by the President, and the 
 officer ordered discharged with one year's pay. 
 (See file 26260-1392, June 29, 1911.) 
 
 Commander George W. Wood, June 29, 1893, 
 board reported: "By reason of the facts ad- 
 duced by the evidence as to his habits of 
 drunkenness, and the contracting of debts 
 beyond his means, and neglect of creditors since 
 his last promotion, we find that Commander 
 Wood is morally unfit for promotion to the next 
 
 higher grade * * *. We hereby certify 
 that Commander George W. Wood, U. S. 
 Navy, has the mental, but not the moral 
 and professional qualifications, to perform 
 efficiently all the duties, both at sea and on 
 shore, of the next higher grade, and do not 
 recommend him for promotion." Board's find- 
 ing approved, and officer discharged. In this 
 case there was a minority report to the effect that 
 the officer was mentally, morally, and profes- 
 sional ly qualified. (See file 26260-1392, June 
 29, 1911.) 
 
 Evidence of moral unfitness. — From a 
 legal point of view, evidence of reputation is 
 to be accepted in preference to e\-idence of 
 specific acts of immorality. (File 26260- 
 1392:29, Feb. 12, 1912, p. 42.) 
 
 The law provides that no officer of the Navy 
 shall be promoted to a higher grade "until his 
 mental, moral, and professional fitness to per- 
 form all his duties at sea have been established 
 to the satisfaction of a board of examining offi- 
 cers appointed by. the President (sees. 1496, 
 1497, li. S.). The same rule therefore applies 
 to the officer's moral qualifications as to his 
 mental and professional qualifications. All 
 alike must be "established" to the satisfaction 
 of the board. The result of failing morally is 
 discharge under the act of 1882; the result of 
 failing professionally is suspension from pro- 
 motion or discharge under section 1505 Revised 
 Statutes. There is no reason for a distinction 
 with reference to the burden of proof as to the 
 method of determining the candidate's moral 
 and his professional qualifications, even if such 
 a distinction were possible under the law. If 
 an officer's unfitness for promotion had to be 
 proved by the Government beyond a reason- 
 able doubt, the law would so obviously not 
 "promote the efficiency of the Navy" that it 
 is unnecessary to comment upon the deplorable 
 results which would follow such a construction. 
 (File 26260-1392, June 29, 1911, p. 32.) 
 
 It is axiomatic that an officer upon examina- 
 tion for promotion in the American Navy is not 
 being tried for his misdeeds or crimes, which 
 must be proved against him beyond a reason- 
 able doubt, but is availing himself of an oppor- 
 tunity to establish his qualifications for a 
 reward which is to be conferred only upon those 
 who can affirmatively demonstrate their abso- 
 lute fitness therefor. (File 26260-1392, June 
 29, 1911, p. 26^.) 
 
 'The question of an officer's amenability to 
 trial by court-martial for acts affecting his 
 moral fitness can not have any bearing upon 
 Ihe question, for should the officer be so tried 
 and convicted, or even acquitted, by court- 
 martial the examining board would still have 
 the duty cast uponit, by express provisions of 
 law, of examining into the facts and outcome 
 of such trial in order to determine for itself the 
 effect, if any, that should be given thereto with 
 reference to the officer's qualifications for pro- 
 motion in the Navy. (File 26260-1392, June 
 29, 1911, p. 16; C. M. O. 13-1916, p. 6.) 
 
 'The Government will not, and should not, 
 appoint an officer to a higher grade unless 
 satisfied beyond a reasonable doubt of his fit- 
 ness. It is fundamental error to contend that 
 candidates for promotion have a property in 
 the offices they hold and are entitled to promo- 
 
 627 
 
Sec. 1456. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 tioii to still higher ofiices unless the Govern- 
 ment shall be able to defend itself against such 
 claim by an amount of evidence that would 
 suiHce to convict the candidates of crime; 
 and even that, if the Government has been 
 negligent in the matter of defending itself 
 against the claim of candidates to serve it, and 
 has not proven its case against them \\'ithin 
 two years, then it is helpless and must keep in 
 employment and promote to still higher grades 
 otticers about whose fitness the gravest doubts 
 exist. No one has a vested right to an office, 
 especially if such office be a creature of statute. 
 Such offices Congress creates, abolishes, and 
 limits at will. The act of August 5. 1882, is 
 therefore entirely constitutional. Congress 
 having complete power might, if it wishes, stop 
 all promotions. It did actually impede pro- 
 motions by the act of 1882. It might declare 
 that no one should hereafter be promoted who 
 was not over six feet high, or it might even 
 direct that all officers not of the required 
 height should be discharged. A fortiori, it 
 can pass an act like that of 1882, dii'ecting the 
 discharge of officers whose unfitness arises from 
 their own misconduct. The burden of estab- 
 lishing his fitness should be upon an officer 
 who asks to be promoted to a higher grade, just 
 as it is on one who seeks original appointment, 
 and when the time comes for these stated exam- 
 inations, the same rule should apply to one 
 who seeks to hold on to an office. He must be 
 discharged unless he shows his fitness to serve 
 the Government. (Letter of Secretary of the 
 Navy to the President, June 29, 1893, in case 
 of Pay Inspector John H. Stevenson's exami- 
 nation for pay director.) 
 
 "The testimony in this case seems to the 
 department to sustain the finding of the board. 
 It IS true there is much conflict in the e\'idence, 
 and it is perhaps also true that a majority of the 
 witnesses testified in favor of the applicant; 
 but the proper method of arriving at the truth 
 is to weigh e\ddence, and not to count wit- 
 nesses. It is within the experience of every 
 lawyer that habitual drunkenness is a most 
 difficult fact to establish. The evidence of 
 the witnesses who did testify to the applicant's 
 habits of intemperance is so full and complete 
 as to largely outweigh in the opinion of the 
 department, the negative testimony offered 
 by the applicant." (File 1223-94, Apr. 18, 
 1894, examination of Frank W. Nichols.) 
 
 The evidence requisite to establish before a 
 naval examining board the unfitness of a candi- 
 date for promotion by reason of habits of in- 
 temperance need not be of such a positive and 
 conclusive character as would be necessary to 
 convict an officer on trial for similar offenses 
 before a court-martial. In the latter case the 
 biu-den rests upon the Government to establish 
 the offense while in the former case it rests 
 upon the candidate, who must demonstrate 
 affirmatively his fitness for promotion. (Memo. 
 of J. A. G., May 27, 1898, p. 34, examina- 
 tion of Asst. Paymaster Francis J. Semmes. ) 
 
 Improvement of oflELcer's moral qualifi- 
 cations. — The fact that an officer had improved 
 the condition of his financial affairs prior to hia 
 examination could not have much bearing on 
 his case. "Such improvement * * * is 
 
 not unusual in cases where an officer whose rec- 
 ord has heretofore been bad is soon to be due for 
 promotion, but, unfortunately, the reformation 
 is usually of short duration." (File 26260- 
 1392, June 29, 1911, p. 13, quoting Memo, of 
 J. A. G., Mar. 3, 1898. examination of Passed 
 Asst. Paymaster Edwin B. Webster, U. S. N.) 
 
 Lieut. Charles P. Burt, U. S. Navy, 
 was examined January 26, 1912, and found 
 mentally, morally, and professionally qualified 
 to perform efficiently all the duties, both at 
 sea and on shore, of the grade to which he was 
 to be promoted, the board stating: "Comparing 
 the evidence as to the candidate's conduct and 
 habits during the early part of the period under 
 investigation for the purpose of determining his 
 fitness for promotion, and his financial methods 
 and habits now, the board is of the opinion that 
 so great a change for the better has taken place, 
 a process of rehabilitation which has extended 
 over a period of five years, that the candidate 
 has shown strength of character and a strong 
 determination to correct and avoid the error of 
 his former ways." (The board's finding was 
 approved by the President, Feb. 13, 1912.) 
 
 Act of August 6, 1882, not a penal 
 statute. — The power to formulate articles for 
 the government of the Navy and to provide 
 punishment for individual officers for violation 
 thereof is conferred upon Congress by the clause 
 of the Constitution authorizing it " to make rules 
 for the government and regulation of the land 
 and naval forces;" the power to provide what 
 persons may be appointed or enlisted in the 
 naval service, the qualifications they must 
 possess, and the total number of the entire 
 force, is conferred by the clause authorizing the 
 Congress "to provide and maintain a Navy." 
 Statutes passed under the first clause mentioned 
 are penal and are to be enforced by courts- 
 martial; those passed under the second clause 
 are enacted in the interest of the Navy at large 
 and are to be administered by the President, 
 either alone or with the aid of examining boards 
 or such other instrumentalities as may be de- 
 termined upon by Congress. Persons excluded 
 from appointment for lack of any required quali- 
 fication — health, age, nationality, height, 
 temperament, or any other condition that Con- 
 gress might see fit to impose — are not being 
 punished imder penal laws for their failure to 
 measure up to the necessary requirements but 
 are merely incidentally affected by the Govern- 
 ment 's policy as defined by Congress in the exer- 
 cise of its undoubted right to say who shall and 
 who shall not be appointed to the military or 
 naval service. Such statutes are not penal in 
 their nature any more than those providing 
 that no man shall be allowed to vote unless he 
 possesses a given amount of property or is of 
 certain age or has resided in the State or district 
 for a specified period, etc. (File 26260-1392, 
 June 29, 1911, p. 24^, citing Street v. U. S., 24 
 Ct. Cls., 230, noted under sec. 1454, R. S. Op. 
 Atty. Gen., Feb. 15, 1918, file 26282-326:2.) 
 
 Even if the act of 1882 be regarded as a penal 
 statute, nevertheless the words should be given 
 the sense which ' ' promotes in the fullest manner 
 the policy and objects of the legislature." 
 (File 26260-1392, June 29, 1911, p.l8, citing, 
 U. S. V. Hartwell. 6 Wall., 385, 395, and U. S. 
 
 628 
 
The Navy. 
 
 PL 2 . RE VISED STAT UTES. 
 
 Sec. 1456. 
 
 V. Lacher, 134 U. S., 624; see also, "Intro- 
 duction," under "Statutory Construction," 
 
 VI, E, 3, "Penallaws.") 
 
 The purpose of Congress was to promote 
 the efficiency of the Navy by ridding it of 
 officers who, for any cause arising from their 
 own misconduct, did not measiu-e up to that 
 high standard which should be demanded of a 
 candidate for appointment or promotion in the 
 American Navy. So far from intending to 
 impose any pimishment upon the officer who 
 was weighed and foimd wanting, Congress in 
 this same act exhibited a remarkably liberal 
 policy toward such officers by proAiding that 
 they should be given on discharge "one year's 
 pay." No stronger eAddence could be desired 
 to establish that the act of 1882 was not intended 
 as a penal statute. If the finding of the ex- 
 amining board had been intended by Congress 
 to be the equivalent of a conviction by court- 
 martial, it would not have provided that the 
 officer so found deficient should be presented, 
 as an absolute gratuity, with "one year's pay," 
 amounting in the present case to $3,120. Offi- 
 cers resigning from the service with the most 
 honorable records are not given any gratuity 
 whatever; and it was not until the act of May 
 13, 1908, that the widows or other beneficiaries 
 of officers killed or otherwise djdng in the line 
 of duty were gi^'en a gi-atuity, and in their 
 cases it was proA-ided that the amoimt should 
 be equal only to six months' pay. (File 26260 - 
 1392, June 29, 1911, p. 22; compare 7 Comp. 
 Dec, 404, noted under sec. 1454, R. S., "One 
 year's pay allowed officer wholly retired is not 
 a gratuity.") 
 
 Examination of moral fitness not a 
 "trial." — An officer upon examination for 
 promotion is not on trial for crime and there- 
 fore the application of constitutional limita- 
 tions upon the procedure of such trials is in no 
 sense pertinent. With reference to the Army 
 board convened imder the act of July 15, 1870 
 (16 Stat., 314), providing for the mustering 
 out by the President, \\'ith one year's pay, of 
 officers foimd by a board to be unfit for the 
 proper discharge of their duties "for any cause, 
 except injuries incurred or disease contracted 
 in the line of their duty," it was stated by the 
 Court of Claims in the case of Din-yea r;. U. S. 
 (17 Ct. Cls., 24): "It may be that the board 
 did not proceed with that strict regard to the 
 rules of e\T.dence which are required in courts- 
 martial and ci\'il courts of justice, but it is 
 not necessary for us to consider how far its 
 irregiUarities extended. In our opinion the 
 board was not a coiu-t of any kind." (File 
 26260-1392, June 29, 1911, p. 30; see also, note 
 to Constitution, fifth amendment, "Due 
 process of law.") 
 
 It was stated by the Court of Claims that the 
 act of 1870, pro\'iding for mustering out officers 
 of the Army, did not contemplate discharges 
 for offenses; that the cause [prescribed therein 
 and for which the claimant in the case under 
 consideration was discharged, was "unfit- 
 ness;" that if the claimant had been guilty 
 of conduct unbecoming an officer or prejudicial 
 to the ser\dce, there were abundant provisions 
 of law for bringing him to trial before a court- 
 martial and dismissing him from the ser\ice 
 withouttheboimty of additional pay; that the 
 
 act of 1870 was intended to reach an entirely 
 different class of officers; it was in no sense 
 penal, the officers against whom it operated 
 were not criminals, the ad\'isory board had no 
 jurisdiction of offenses, and was without au- 
 thority to put officers upon their trial for any 
 fault. The foregoing is directly applicable 
 to the act of 1882 relating to the Navy. (File 
 26260-1392, June 29, 1911, p. 22, citing Sher- 
 burne V. U. S., 16 Ct. Cls., 491.) 
 
 The only question before an examining 
 board when considering an officer's moral 
 qualifications is his fitness for promotion. The 
 board is in no sense a court before which the 
 candidate is on trial for his misdeeds. The 
 punishment for such misdeeds is provided for 
 by other statutes and is not a question to be con- 
 sidered by examining boards; but the bearing, 
 if any, wliich such misconduct may have upon 
 the officer's fitness for promotion is a question 
 before the board and must be determined by 
 it wholly independent of any disciplinary 
 proceedings to which the officer has rendered 
 himself liable. In considering this question 
 and submitting its report the examining board 
 is not administering a penal statute. (File 
 26260-1392, June 29, 1911, p. 23.) 
 
 The pm-pose of the act of August 5, 1882, as 
 shown by the title of the bill as it first passed 
 the Senate, was "to promote the efficiency of 
 the Navy"^' and not to pro\'ide for the adminis- 
 tration of justice, nor to provide for the punish- 
 ment of drunkenness. This was to be done 
 by discharging, instead of promoting or retiring, 
 officers who were found on examination not 
 qualified "for the honorable position of an 
 officer in the United States Navy." (File 
 26260-1392, June 29, 1911, p. 21.) 
 
 The contention that cases of moral unfit- 
 ness should be disposed of by com-t-martial 
 proceedings is based upon an utter misconcep- 
 tion of the causes invohing such moral unfit- 
 ness, as well as the duties and powers of ex- 
 amining boards. As the history of the servict* 
 shows, moral disqualification in a vast majority 
 of cases is due to a series of matters, each per- 
 haps trivial in itself, but wliich, taken as a 
 whole, amount to a habit sufficiently serious to 
 disqualify an officer for promotion in the U. 
 S. Navy. But an officer of the Navy can 
 not be court-martialed for a "habit." The 
 Navy Regulations pro\ide that "offenses shall 
 not be allowed to accumulate in order that 
 sufficient matter may thus be collectively ob- 
 tained for a trial." And article 61, Articles for 
 the Government of the Navy (sec. 1624, R. S.), 
 pro\ddes that "no person shall be tried by 
 court-martial or otherwise punished for any 
 offense, except as provided in the following 
 article [desertion], which appears to have 
 been committed more than two years before 
 the issuing of the order for such trial or punish- 
 ment." Furthermore, a naval examiiiing 
 ])oard has authority and exercises functions 
 as extensive in their nature as those exercised 
 by com-ts-martial, and in its consideration of 
 an officer's qualifications for promotion it de- 
 termines for itself all questions arising, in- 
 dependently of any disciplinary action that 
 mayor could have been taken in the premises. 
 (File 26260-1392, June 29, 1911, p. 14, citing 
 Op J V. G., Dec. 4, 1897, case of Passed Asst. 
 
 629 
 
Sec. 1456. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 Pa^Tnastor ITarrv R. Sullivan, file 5878-97, 9 
 Op'. J. A. G., 2!)r), :UCt, 310; Davis v. U. S., 24 
 Ct. Cls. 442.) 
 
 It is further contended that, if the act of 
 1882 is held to apply to an olhcer's moral quali- 
 fications for promotion, this would be equiv- 
 alent to investing examining boards with the 
 powers of a court-martial, thereby authorizing 
 the dismissal of an officer by indirection, 
 without the sentence of a court-martial, which 
 is forliidden by the Articles for the Govern- 
 ment of the Navy. If Congress sees fit to pro- 
 vide that officers not possessing certain qualifi- 
 cations which it has made a prerequisite to pro- 
 motion shall be discharged from the service 
 upon the finding of an examining board, its 
 power to do so can not successfully be ques- 
 tioned. (File 26260-1392, June 29, 1911, p. 
 17, citing Crenshaw v. IT. S., 134 U. S., 99.) 
 
 Character of discharge issued londer act 
 of 1882. — As has been held bv the Attorney 
 General (13 Op. Atty._ Gen., 16, 'l8), "an officer 
 or soldier, upon his discharge from the service, 
 may be regarded as entitled to an honorable 
 discharge, unless he is under sentence of dis- 
 honorable dismissal, or unless he has been 
 convirted of an infamous offense, and is sen- 
 tenced to punishmnent therefor during the re- 
 mainder oi his term of service, such as cow- 
 ardice, etc., with either of which conditions an 
 honorable discharge would be incompatible." 
 Officers discharged under the act of 1882 can 
 not, therefore, be regarded as having been 
 dishonorably discharged, which conclusivelv 
 shows, even aside from the gratuity accom- 
 panying it, that the act of 1882 is not in anv 
 aspect a penal statute imposing "punishment" 
 in a legal sense upon the officer found not 
 morally qualified for promotion. (File 26260- 
 1392, June 29, 1911, p. 26.) 
 
 It is evident that the word "discharged " as 
 used in the act of 1882 was intended to be 
 synonymous with the words "wholly retired," 
 and it has been given that construction by the 
 Navy Department and by Congress. Thus, a 
 bill "(S. 1438), which passed both Houses dur- 
 ing the Fifty-third Congress, second session, 
 pro\dded that Passed Assistant Paymaster 
 Louis A. Yorke, who had been discharged from 
 the service under the act of 1882, should be 
 restored to the Navy as of the date that he was 
 "wholly retired." The Secretary of the Navy 
 in reporting upon the bill in question (Senate 
 Kept. No. 265, 53rd Cong., 2d sess.), stated 
 "that his retirement (wholly) from the service 
 was justified by the finding of the board." 
 The Senate and House naval committees, in 
 reporting upon the same bill (Senate Rept. No. 
 489; House Rept. No. 1990; 53d Cong., 1st 
 sess.), stated with respect to the history' of Mr. 
 Yorke's case, that "by this board he was wholly 
 retired from the naval service." (File 26260- 
 1392, June 29, 1911, p. 25^; as to meaning of 
 "wholly retired," see note to sec. 1454, R. S.) 
 
 One year's pay not a gratuity. — See note 
 to section 1454, Revised Statutes, under "One 
 year's pay allowed officer wholly retired is not a 
 gratuity" ; compare note to this section, above, 
 under "Act of August 5, 1882, not a penal 
 statute" and "Character of discharge issued 
 under act of 1882." 
 
 Amount of pay on discharge. — Section 
 1505, Revised Statutes, as amended bv the act 
 March 11, 1912 (37 Stat., 73), provides for 
 dropping an officer from the service "with 
 not more than one year's pay" upon failing to 
 qualify professionally for promotion. Held, that 
 said provision is indefinite and authority is not 
 given to the accounting officers to determine 
 how much pay, if any, shall be received by an 
 officer so dropped, but the discretion in de- 
 termining the amount is left to the executive, 
 through the administrative department. Where 
 the President directed that theofficer be dropped 
 under said statute, without directing any 
 pay be given him, none can be allowed by the 
 accounting officers, and he is, therefore, entitled 
 to pay to the date he received notice of dis- 
 charge, and no more. (18 Comp. Dec, 922.) 
 
 Revocation of President's action. — A 
 naval examining board finds an officer morally 
 disqualified for promotion. The finding is ap- 
 proved by the President, and under the provi- 
 sions of the act of August 5, 1882, it is directed 
 that he be discharged with one year's pay. 
 The President thereafter revokes his approval, 
 stating that he inadvertently signed the order 
 confirming the report of the board , because it was 
 supposed to be a case in which the formal ap- 
 proval would follow as of course, instead of one 
 in which there was a dispute and to which his 
 attention had previously been particularly in- 
 vited. Held, that because of the multiplicity 
 and variety of cases requiring the action of the 
 President, it is manifestly impossible for him to 
 give careful consideration to each one, and when 
 he inadvertently, by mistake of fact, takes 
 action, as shown in this case, that he did not 
 intend to take, it would seem to be a case to 
 which the legal principle authorizing correc- 
 tion of a mistake of fact, is peculiarly applica- 
 ble. Accordingly, held, that the President had 
 power to cancel the approval of the board's 
 recommendation, and to remit the case for the 
 consideration of another board, and having so 
 exercised his power, such action had the effect 
 of placing the officer in the same situation he 
 would have been in if the President had not 
 approved said recommendation and issued 
 said order directing that he be discharged; the 
 officer was never out of the service by reason of 
 the President's action, and is therefore entitled 
 to pay accordingly. (18 Comp. Dec, 676.) 
 
 In the above case the officer was, November 
 2, 1911, discharged by the Navy Department in 
 accordance with the President's order; January 
 2, 1912, the President directed that his signa- 
 ture be canceled; January 4, 1912, the Secre- 
 tary of the Navy notified the officer that, by 
 direction of the President, hia discharge had 
 been canceled; January 6, 1912, the Secretary 
 of the Navy wrote requesting the officer to re- 
 turn for cancellation the Navy Department's 
 letter notifying him of his dismissal from the 
 service of the United States. The letter was 
 received by the officer January 8, 1912, and the 
 request complied with. In the meantime, no 
 successor was appointed. (18 Comp. Dec, 676.) 
 
 It has been repeatedly decided by the courts 
 that when, by any of the legal methods, an 
 officer of the Army or Navy goes out of the serv- 
 ice by the act of the President, his connection 
 
 630 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1457. 
 
 with the ser\-ice is severed, and no revocation 
 by the President of his legal acts of dismissal 
 can have the effect to restore the person to his 
 former office (citing Mini mack v. U. S., 10 Ct. 
 Cls., 5S4, 97 U. S., 426, 437; Corson v. U. S., 17 
 Ct. Cls., 344, 114 U. S., 619; McBlair v. U. S., 
 19 Ct. Cls., 528). These cases are inapplicable 
 to the facts stated in the case noted above. (18 
 Comp. Dec, 676.) 
 
 Lieut. Charles P. Burt was examined for pro- 
 motion November 22, 1909, and found phys- 
 ically and mentally, but not morally or profes- 
 sionally, qualified ; the finding as to moral dis- 
 qualification was disapproved, the finding as 
 to professional disqualification approved, and 
 he was suspended from promotion in accordance 
 with section 1505, Revised Statutes. Upon ex- 
 piration of the period of suspension he was 
 again examined and found mentally and pro- 
 fessionally, but not morally, qualified; the 
 record was returned to the board for further 
 consideration as to his moral qualifications; the 
 board again reported that he was not morally 
 quaUfied for promotion. A minority report 
 
 stated that he was mentally, morally, and pro- 
 fessionally qualified. The majority finding of 
 the board was approved by the President, Octo- 
 ber 28, 1911, and the officer accordingly dis- 
 charged from the Navy. On January 4, 1912, 
 the Secretary of the Navy, by direction of the 
 President, canceled the President's approval, 
 for reasons stated above. The President's letter 
 of January 2, 1912, directing that his signature 
 be canceled, stated: "I am aware, in directing 
 the cancellation of my signature as inadvertent, 
 I am exercising a power the legality of which 
 may be questioned, but as the action is in the 
 interest of equity and justice I have taken it, 
 leaving it to the courts, should the question ever 
 be brought to them, to pass upon its legality." 
 (File 26260-1392:15. The Comptroller of the 
 Treasury, in his decision above noted, sus- 
 tained the legality of the President's action, and 
 the officer's consequent right to pay thereunder, 
 and the question was thus not raised in the 
 courts.) 
 
 For other cases. — See notes to sections 1447, 
 1452, 1454, Revised Statutes. 
 
 Sec. 1457. [Grade and status of retired officers.] Officers retired from 
 active service shall be placed on the retired list of officers of the grades to which 
 they belonged respectively at the time of their retirement, and continue to be 
 borne on the Navy Register. They shall be entitled to wear the uniform of 
 their respective grades, and shall be subject to the rules and articles for the 
 government of the Navy and to trial by general court-martial. The names of 
 officers wholly retired from the service shall be omitted from the Navy Regis- 
 ter.— (16 Jan., 1857, c. 12, s. 4, v. 11, p. 154. 3 Aug., 1861, c. 42, ss. 22, 23, 
 24, V. 12, pp. 290, 291. 30 Jan., 1875, c. 30, v. 18, f. 304.) 
 
 Active duty for retired officers. — See section 
 1462, Revised Statutes, and note thereto. 
 
 Articles for the government of the Navy are 
 embodied in section 1624, Re\dsed Statutes, 
 and amendments thereto. 
 
 Command, retired officers withdrawn from. — 
 See section 1459, ReWsed Statutes. 
 
 Commissions with advanced rank to be issued 
 to officers of the Army, Na\y, and Marine 
 Corps on the retired list advanced in rank 
 by operation of or in accordance with law. 
 (Act Mar. 4, 1911, 36 Stat., 1354.) 
 
 Marine officers retired generally with the "rank" 
 held on the active list. — See sections 1254 
 and 1622, Re\-ised Statutes. 
 
 Officers retired as captain, promoted to rear 
 admiral, and subsequently having war 
 service, were to be regarded as ha^dng been 
 retired as rear admirals, under the pro\d- 
 sions of section 1589, Re\'ised Statutes, 
 now obsolete. 
 
 Officers temporarily advanced in rank or grade 
 during war with Germany, and retired 
 while holding such temporary rank, except 
 for physical disability incurred in line of 
 duty, shall be retired with grade or rank 
 to which permanently entitled. (Act May 
 22, 1917, sec. 9, 40 Stat., 86; see also act 
 June 4, 1920, sec. 2, 41 Stat., 834.) 
 
 Officers may be wholly retired when incapacity 
 is not an incident of the service. — See sec- 
 tion 1454, Revised Statutes. 
 
 Pay of retired officers. — See section 1588, Re- 
 vised Statutes. When employed on active 
 duty. — See section 1592, Revised Statutes 
 and note to section 1462, Revised Statutes. 
 
 Promotion or increase of pay on the retired list, 
 proliibited by act August 5, 1882 (22 Stat., 
 286); see note to sections 1460, 1461, and 
 1591, Revised Statutes. Promotion on re- 
 tired list under certain specified condi- 
 tions was authorized by act of July 1, 1918 
 (40 Stat., 717). 
 
 Promotion on retired list, without increase in 
 pay, was authorized by sections 1460, 1461, 
 and 1591, Revised Statutes. 
 
 Rank and pay of officers on retired list shall be 
 the same as when they are retired. (Act 
 Aug. 5, 1882, 22 Stat., 286.) 
 
 Rank of officers retired under section 8, Navy 
 personnel act of March 3, 1899 (30 Stat., 
 1004), to create vacancies, shall be same 
 as when retired. (Act Aug. 22, 1912, 37 
 Stat., 328.) 
 
 Rank on retirement, increased on account of 
 ci\il-war servdce. (Act Mar. 3, 1899, sec. 
 11, 30 Stat., 1007; act June 29, 1906, 34 
 Stat., 554; and act Mar. 3, 1909, 35 Stat., 
 753.) 
 
 Rank on retirement, increased in cases of offi- 
 cers failing in physical examination for 
 promotion. (Act Mar. 4, 1911, 36 Stat., 
 1267.) But this does not apply to officers 
 of the rank of lieutenant commander and 
 above. (Art Aug. 29. 1916. 39 Stat., 579, as 
 amended by act July 1, 1918, 40 Stat., 718.) 
 
 631 
 
Sec. 1467. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Rank on retirement of staff officers, increased in 
 
 cert ;iiu cases. (Sec. 1481, R. S.) 
 Rank on retirement of chiefs of bureaus, in- 
 creased in certain cases. — See section 1473, 
 Revised Statutes, and note to section 421, 
 ReWsod Statutes. 
 Rank on retirement of midshipmen. — See note 
 
 to section 1445, Revised Statutes. 
 Rank of officers shall not be changed, except in 
 accordance Avith tlio provisions of existing 
 law, and by and with the advice and con- 
 sent of the Senate. (Sec. 1506, R. S., as 
 amended by act June 17, 1878, 20 Stat., 
 144.) 
 Restoration of retired officers to active list. — See 
 
 section 1465, Revised Statutes. 
 Rules for the government of the Navy are con- 
 tained in Navy regulations, issued under 
 authority of sections 161 and 1547, Revised 
 Statutes. See notes to said sections. 
 Staff officers are retired generally with rank 
 held on active list. (Sec. 1482 R. S. See 
 also, as to retirement of staff officers, sees. 
 1473 and 1481, R. S.) 
 Trial of retired officers by general court-martial. 
 See note to Constitution, article 1, section 
 8, clause 14, under "IV. Jurisdiction of 
 courts-martial." 
 Unauthorized wearing of the uniform was 
 prohibited by act June 3, 1916, section 125 
 (39 Stat., 216), as amended by act August 
 29, 1916, section 1 (39 Stat., 649), and June 
 4, 1920, sec. 8 (41 Stat., 836.) See also 
 act February 28, 1919 (40 Stat., 1202). 
 Historical note. — The reserved, or as it is 
 sometimes with more accuracy called, the re- 
 tired list of the Navy, was created under the 
 provisions of the act of February 28, 1855 
 (10 Stat., 616), to promote the efficiency of 
 the Navy. The second section of that act 
 declared that those officers so placed on the 
 reserved list should receive the leave of ab- 
 sence pay, or the furlough pay to which they 
 might be entitled when so placed, according 
 to the report of the board and approval of the 
 President, and should be ineligible to further 
 promotion, but subject to the orders of the 
 Navy Department at all times for duty, and 
 it limited the reserved list to the grades of cap- 
 tain, commander, lieutenant, masters, and 
 passed midshipmen. The 22d section of the 
 act of August 3, 1861 (12 Stat., 290), providing 
 for the better organization of the military es- 
 tablishment, enacted that if any officer of the 
 Navy shall have become or shall hereafter 
 become, incapable of performing the duties of 
 his office, he shall be placed upon the retired 
 list, and withdrawn from active service and 
 command, and from the line of promotion, 
 with certain pay and emoluments therein 
 specified, graduated according to the rank of 
 the different classes of officers. The officers 
 named are captains, commanders, lieutenants, 
 surgeons, paymasters, engineers, masters, and 
 passed midshipmen. (10 Op. Atty. Gen , 
 107.) 
 
 Application to Navy of decisions relative 
 to Army retired list. — The status of the 
 retired lii-t appears to be fundamentally the 
 same in the Army and Navy, and the nature 
 and bearings of a case as to the authority con- 
 ferred upon the President with reference to the 
 
 one may be taken as indicative of the char- 
 acter of legislation with reference to the other. 
 (25 Op. Atty. Gen., 316.) 
 
 Civilian can not be placed on retired list 
 under general laws. — A person can not 
 legally 1)e placed on the retired list, unless he 
 is an officer of the description to which the 
 retired provisions extend. Accordingly, a 
 former officer no longer in the service can not 
 claim the benefits of retirement. (14 Op. 
 Atty. Gen., 506; affirmed 17 Op. Atty. Gen., 9.) 
 _ An officer on being wholly retired becomes a 
 civilian and can be readmitted to the service 
 only by a new appointment; J>ut he can not be 
 appointed at once to the retired list. A civil- 
 ian can not be appointed as a retired officer. 
 He must first be appointed an officer on the 
 active list, of a certain rank. None but a com- 
 missioned officer on the active list of the Army 
 can be placed on the retired list. (Miller v. 
 U. S., 19 Ct. Cls., 338, 353.) 
 
 None but officers in active service being 
 eligible for retirement, the action of the Pres- 
 ident revoking a previous order dropping an 
 officer from the rolls and putting him on the 
 retired list of the Army was inefficient for this 
 purpose. (19 Op. Atty. Gen., 202, 205.) 
 
 By section 1094 of the Revised Statutes the 
 officers of the Army on the retired list are a 
 part of the Army of the United States, there- 
 fore no one can be upon that list who is not 
 an officer appointed in the manner required 
 by the Constitution. (Wood v. U.S., 15 Ct 
 Cls., 151; afiirmed 107 U. S., 414.) 
 
 Congress has frequently exercised the power 
 of changing the mere rank of officers without 
 invoking the Constitutional power of the Ex- 
 ecutive to appoint the incumbents to new 
 offices. But when it has been the purpose to 
 place on the retired list one who has been dis- 
 charged from the service, who no longer holds 
 an office in the Army, Congress has provided 
 for his restoration or reappointment in the 
 manner pointed out by the Constitution, gen- 
 erally by the President alone, and then has 
 authorized his retirement. (Wood iJ. U S 
 15 Ct. Cls., 151, citing Collins v. U. S., 15 Ct! 
 Cls., 22.) 
 
 For other cases see note to section 1443, 
 Revised Statutes. 
 
 Status of retired oflB.cers; part of the 
 Navy. — Officers on the retired list of the Navy 
 are still in the Navy, and remain subject to the 
 Rules and Articles for the Government of the 
 Navy, as well as to trial by court-martial. (13 
 Comp. Dec, 590.) 
 
 A retired naval officer is a "salaried officer" 
 within the meaning of the act of July 9, 1888 
 (25 Stat., 243), providing for actual necessary 
 expenses to be allowed salaried officers of the 
 United States under certain conditions. 
 (Franklin v. U. S., 29 Ct. Cls., 6.) 
 
 Pay is a fixed and direct amount given by 
 law to officers in the Navy in consideration of 
 and as compensation for their personal service. 
 Retired pay is given partly for past service, 
 partly for present liability to military disci- 
 pline, and partly because the officer may be 
 assigned to active duty. Although he has 
 been placed on the retired list he is still an 
 officer of the Navy, is liable to discipline, and 
 
 632 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1457. 
 
 may be assigned to active duty. (17 Comp. 
 Dec, 919.) 
 
 A retired naval officer who has not been 
 wholly retired from the ser\ice is an officer of 
 the United States. (30 Op. Atty. Gen., 298.) 
 
 A retired officer of the Army or Navy holds 
 an office with a salary or annual compensation 
 attached. His pay is not a mere pension. (19 
 Comp. Dec, IGO, citing 11 Comp. Dec, 422, 
 29 Op. Atty. Gen., 397, 29 Op. Atty. Gen., 503; 
 but see contra, Geddes v. U. S., 38 Ct. Cls., 428, 
 and Comp. Dec, Sept. 26, 1910, file 26254-539, 
 noted in Annual Report of the U. S. Ci\al 
 Service Commission, 1911, p. 126.) 
 
 An officer of the U. S. Army or Marine 
 Corps, retii-ed from active service only and 
 not wholly retired from service, is an officer 
 in the employ of the Government and so within 
 the prohibition of section 1782, Revised Stat- 
 utes [superseded and repealed by Criminal 
 Code, act Mar. 4, 1909, 35 Stat., 1109, 1153]. 
 (29 Op. Atty. Gen., 397.) 
 
 Officers of the Navy are not entitled to 
 increased retired pay for length of service after 
 retirement; time on the retired list is not to be 
 counted as ser\ice in computing longevity pay. 
 (15 Comp. Dec, 767.) 
 
 An officer on the retired list is "serving" in 
 the Army within the meaning of section 1262, 
 Revised Statutes, providing that "there shall 
 be allowed and paid to each commissioned 
 officer below the rank of brigadier general, 
 including chaplains and others having assimi- 
 lated rank or pay, ten per centum of their cur- 
 rent yearly pay for each term of five years' 
 service. " The years so passed in the service 
 after retirement as well as before are included 
 in the provision for increased pay for each five 
 years' service. (U. S. v. Tyler, 105 U. S., 244; 
 Tyler v.}5. S., 16 Ct. Cls., 223; the rule pre- 
 scribed in this decision was modified by act 
 Mar. 2, 1903, 32 Stat., 932.) 
 
 The retired pay of officers of the Army is 
 "salary," within the meaning of the act of 
 •May 10, 1916, section 6, restricting payment of 
 more than one salary. (22 Comp. Dec, 643.) 
 
 Pay of a retired officer of the Coast Guard is 
 salary within the meaning of the act of May 10, 
 1916, prohibiting under certain conditions the 
 payment of more than one salary to an officer 
 or employee. (22 Comp. Dec, 673.) 
 
 The law under which these officers are re- 
 tired does not require their consent, nor does it 
 require that the order for their retirement 
 shall be based upon any absolute incapacity 
 for further service. It may be based upon age, 
 which, being fixed at a minimum of 62 years, 
 by no means implies such incapacity. It may 
 be based upon wounds received in battle, but 
 the person retired for this cause may for many 
 piu-poses be a very useful officer. The pro\d- 
 sions of the statutes and the uniform treatment 
 of these officers conform to this view, and neces- 
 sarily imply that, while not required to per- 
 form full ser\'ice, they are a part of the Army, 
 and may be assigned to such duty as the laws 
 and regulations permit. (U. S. v. Tyler, 105 
 U. S., 244; 29 Op. Atty. Gen., 403.) 
 
 An officer of the Army is still an officer of the 
 United States when placed On the retired list. 
 (In re Winthrop, 31 Ct. Cls., 35.) 
 
 Officers on the retired list are a part of the 
 Army. They may be assigned to duty and 
 wear uniforms, and continue to be borne on the 
 Army Register, and are subject to trial by coiul- 
 martial._ (Miu-phy v. U. S., 39 Ct. Cls., 178.) 
 
 A retired officer of the Armj^ not being a 
 ci\'ilian, is not entitled to payment from the 
 appropriation for "ci^'ilian lecturers" at the 
 Naval War College. (14 Comp. Dec, 663.) 
 
 A retired officer in the Revenue-Cutter Serv- 
 ice [now Coast Guard] holds an "office. " (26 
 Op. Atty. Gen., 460.) 
 
 Officers of the Army on the retired list hold 
 public office; but an advancement of such an 
 officer as authorized by act of April 23, 1904 (33 
 Stat., 264), on account of civU-war 8er\'ice, 
 does not create an office and is not accomplished 
 by an exercise of the appointing power. (25 
 Op. Atty. Gen., 185; 25 Op. Atty. Gen., 312. 
 
 An officer when transferred to the retired 
 List is not divested of one office and appointed 
 to another. He continues as a retired officer 
 under the appointment which he held on the 
 active list and even where he acquires a higher 
 rank on retirement this does not call for an ex- 
 ercise of the appointing power. The situation, 
 accurately stated, is that when an officer is 
 transferred from the active to the retired list 
 there is no change in the office which he holds 
 but merely a change in his status and func- 
 tions under his existing appointment. The 
 fact of his retirement creates a new office in 
 the military service, the number of officers of 
 his grade thereby being increased by one and 
 a new office coming into existence on the 
 moment that his retirement becomes legally 
 effective. The number of officers in any given 
 grade in the Navy is not limited by law but 
 only the number of such officers who may be 
 on the active list is so limited, the remainder 
 being on the retired list. (File 28687-22:3, 
 Jan. 9, 1919.) 
 
 ' ' The general rule undoubtedly is that the 
 status of retired officers who are withdrawn 
 from command and the line of promotion rests 
 fundamentally on the office and rank held at 
 the date of retirement * * *. The Presi- 
 dent may be authorized to appoint on the 
 retired list one not in the service, and in such 
 case there would seem to be an office and an 
 exercise of the appointing power, because it 
 would not constitute a transfer to the retired 
 list from the active list." (25 Op. Atty. Gen., 
 312, 315.) 
 
 For other cases see below. "Retired officers 
 may be included in general legislation. " 
 
 Signatures of i-e tired officers shouldhave 
 word "retired" appended. — The word "re- 
 tired" may appropriately and should be 
 appended to the signatiu^es of officers on the 
 retired list. (File 3575-03.) 
 
 Persons appointed to retired list from 
 civil life must take oath of office. — A formor 
 Army officer appointed from civil life to the 
 position of major of engineers, and thr-ro- 
 upon placed on the retired list of the Army as 
 of that grade, must take the oath of office re- 
 quired by section 1756, Revised Statutes. (19 
 Op. Atty. Gon,, 2S3.) 
 
 General legislation not apphcable to 
 retired officers. — While retired officers are 
 in the Navy, yet they are not serving as such. 
 
 633 
 
Sec. 1457. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 Tlioy arc a distinct class, and when Coni^'tcs.-! 
 lerislales in reference to them they are usually 
 referred to aa retired ollicers or oificers on the 
 retired list . ILhl, therefore, that section 15S8, 
 Revised Statutes, lixing the pay of Navy 
 chaplains on the retired list, and the act of 
 August 5, 1882 (22 Stat., 28G), which proliibits 
 any increase of pay for retired officer.-^, are not 
 affected by the act of Juno 29, 190G jli.xing new 
 rates of pay for Navy chaplain.-^], in so far as 
 concerns the pay of Navy chaplains who were 
 on the retired list when the act of 1906 went 
 into effect. (13 Comp. Dec, 116.) 
 
 The act of March 3, 1899, section 1 (30 Stat., 
 1004), providing that "the officers constituting 
 the Engineer Corps of the Navy be, and are 
 hereby, transferred to the line of the Navy, and 
 shall be commissioned accordingly," did not 
 transfer to the line of the Navy officers of the 
 Engineer Corps who were on the retii'ed list at 
 the time of the passage of said act. Accord- 
 ingly, where such officers subsequently became 
 entitled to advancement to the rank of the next 
 higher grade for civilrwar service, such advance- 
 ment was properly made to the grades of the 
 old Engineer Corps. (13Comp. Dec.,630; com- 
 pare 4 Comp. Dec, 628, noted below.) 
 
 An officer who haa the rank of commander 
 conferred upon him for the purpose of retire- 
 ment does not "attain" that rank within the 
 meaning of section 5 of the Navy personnel act, 
 March 3, 1899 (30 Stat., 1004), which provides 
 "that engineer officers transferred to the line to 
 perform engineer duty only who rank as, or above, 
 commander, or who subsequently attain such 
 rank, shall perform shore duty only." This sec- 
 tion had in contemplation officers who subse- 
 quently attained the rank of commander on the 
 active list; in order to attain the rank of com- 
 manderin the line of the Navy on the active list 
 it is necessary for the officer to be appointed to 
 the office of commander. The rank goes with 
 the office. (12 Comp. Dec, 18.5.) 
 
 Section 13 of the Navy personnel act of March 
 3, 1899 (30 Stat., 1007), providing that com- 
 missioned officers of the Navy shall receive the 
 same pay and allowances as provided by law for 
 the officers of corresponding rank in the Army, 
 did not affect the provision m the act of June 7, 
 1900, concerning pay of retired officers of the 
 Navy ordered to active duty. (13 Comp. Dec, 
 83.) 
 
 The act of June 22, 1874 (noted under sec. 
 1-561, R. S.), which provided that "any officer 
 of the Navy who may be promoted in course to 
 fill a vacancy in the next higher grade shall be 
 entitled to the pay of the grade to which pro- 
 moted from the date he takes rank therein, if it 
 be subsequent to the vacancy he is appointed 
 to fill," was manifestly designed to fix the com- 
 mencement of the increased pay of promoted 
 officersin active service only, and did not apply 
 to the promotion of officers on the retired list un- 
 der section 1460, Revised Statutes, aa amended 
 by act of August 16, 1876 (19 Stat., 204). (17 
 Op. Atty. Gen.,497.) 
 
 The provision in the Army act of June 12, 
 1906, "that hereafter fuel may be furnished to 
 commissioned officers on the active list," did 
 not repeal the provision in the act of April 23, 
 1904, to the effect that retired officers while 
 assigned to active duty should receive "the full 
 
 pay and allowances of their respective grades," 
 nor exclude a retired officer of the Marine 
 Corps from the receipt of a fuel allowance while 
 employed on active duty. (13 Comp. Dec, 
 168. 
 
 The provisions of section 8 of the act of June 
 18, 1878, chapter 263, giving to Army officers the 
 privilege of purchasing fuel at the rate of $3 per 
 cord for standard oak wood, do not extend to 
 retired officers of the Army. (16 Op. Atty. 
 Gen., 92.) 
 
 An officer of the Navy was retired as a mid- 
 shipman ; by actof March 3, 1883 (22 Stat., 472), 
 the title of the grade of midshipman was 
 changed to that of ensign, constituting a junior 
 grade; by act of June 26, 1884 (23 Stat., 60, sec. 
 2), the grade of junior ensign waa abolished and 
 it: was provided that the junior ensigns then on 
 the list should be commissioned as ensigns in 
 the Navy. The latter act operated to promote 
 officers who had been retired in the grade of 
 midshipman or of ensign (junior grade) to en- 
 sign, but did not have the effect of giving them a 
 corresponding increase of pay, that being still 
 governed by section 1591, Revised Statutes, 
 and the act of August 5, 1882 (sec. 4, 22 Stat., 
 284), forbidding such increase of pay. (4 Comp. 
 Dec, 628.) 
 
 Retired oflficers may be included in 
 general legislation. — The art of May 22, 
 1917, sec 7 (40 Stat., 86) provided "That upon 
 the termination of temporary appointments 
 in a higher grade or rank as authorized by this 
 act the officers so advanced, * * * shall 
 revert to the grade, rank, or rating from which 
 temporarily advanced * * *." The lan- 
 guage of this act is general, making no specific 
 reference to retired officers, and there are 
 authorities both ways upon the question 
 whether such general legislation includes the 
 retired list. However, it sufficiently appears 
 that general legislation relating to officers of the 
 Navy may, upon the highest authority, be held 
 to include officers on the retired list. As there 
 is nothing in the act of May 22, 1917, which 
 requires that retired officers be excluded from - 
 its provision with reference to "officers" 
 reverting to the grades or ranks from which 
 temporarily advanced, it is concluded that 
 they may so revert to their former places on the 
 retired list if temporarily appointed to higher 
 grades or ranks during the present war, as 
 authorized in said act. (File 27231-103, July 
 17, 1917.) 
 
 In Badeau v. U. S. (130 U. S., 439, 449), it 
 was held that retired officers were included in 
 the terms of the act of March 30, 18(i8 (15 Stat., 
 56, 58, sec. 2) now embodied in sections 1223 and 
 1440, Revised Statutes, which provided : " That 
 any officer of the Army or Navy of the United 
 States who shall, after the passage of thisact, ac- 
 cept or hold any appointment in the diplomatic 
 or consular service of the Government, shall be 
 considered as having resigned his said office, 
 and the place held by him in the military or 
 naval service shall be deemed and taken to be 
 vacant, and shall be filled in the same manner 
 as if the said officer had resigned the same. 
 (File 27231-103, July 17, 1917.) 
 
 Inasmuch as the Government is to be reim- 
 bursed for stores dispensed under the act of 
 May 13, 1908 ("Provisions, Navy") no reason 
 
 634 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1457. 
 
 exists for giving this law other than a liberal 
 construction, and it should therefore be held to 
 apply to retired officers, who are "officers 
 * * * of the Navy and Marine Corps." The 
 Attorney General's opinion to the Secretary of 
 War (16 Op. Atty. Gen., 92) holding that a 
 statute authorizing the sale of fuel to officers 
 below cost did not apply to retired officers, was 
 based upon the wording of the law and certain 
 conditions indicating that such was the inten- 
 tion of Congress. (File 26815, Oct. 2, 1908.) 
 
 For other cases, see above, " Status of retired 
 officers; part of the Navy.'' 
 
 Power of Congress to remove oflB.cers 
 from retired list. — The first section of the 
 act of December 21, 1861 (12 Stat., 329), re- 
 tired from service two classes of naval officers, 
 firstly, those whose names may have been 
 borne on the naval register 45 years, and sec- 
 ondly, those who had arrived at the age of 62 
 years. The act of June 25, 1864, provided that 
 the act of 1861 "shall not be so construed as to 
 retire any officer under the age of sixty-two 
 years, and whose name shall not have been 
 borne upon the Navy Register for a period of 
 forty-five years after he had arrived at the age 
 of sixteen years" (13 Stat., 183). The latter 
 act had the effect of removing from the retired 
 list officers of the Navy who were retired in 
 pursuance of the act of December 21, 1861, but 
 who were not liable to be retired by the pro- 
 vision of the act of 1864. (11 Op. Atty. Gen., 
 144.) 
 
 It may be questioned whether the Congress 
 could, without abolishing the office, constitu- 
 tionally remove an officer from an office into 
 which he had been legally inducted. (Thomp- 
 son t>. U. S., 18 Ct. Cls., 604, 612.) 
 
 Retired pay not "pension." — The retired 
 list of the Army is regulated by positive law, 
 being a form of compensation adopted by the 
 Government. (McBlair v. U. S., 19 Ct. Cls., 
 528.) 
 
 The retu'ed pay of an inmate of a naval hos- 
 pital is not a ''pension." The difference in 
 the meaning of the terms "retired pay" and 
 "pension" is so clearly recognized in the laws 
 that one can hardly be confused with the 
 other. (12 Comp. Dec, 407.) 
 
 Upon question whether retired pay is com- 
 pensation or pension, see file 5362-35, June 29, 
 1911; see also cases noted above, under "Status 
 of retired officers; part of the Navy." 
 
 Distinction between "rank" and 
 "grade." See note to sections 421 and 1362, 
 Revised Statutes. 
 
 The word "grade" as used in this section 
 means "rank," and entitles an officer retired 
 while serving as chief of bureau or Judge Advo- 
 cate General in the Navy Department to the 
 rank held by him while so serving. (31 Op. 
 Atty. Gen., 505, 509, 516, 518.) 
 
 This section shows that the names of officers 
 find their place upon the retired list only ac- 
 cording to gi'ade at the time of retirement. The 
 terms "rank" and "grade" are not synonjons. 
 (Moser v.^ Meyer, 38 App. D. C, 13, 19.) 
 
 The distinction between rank and grade in 
 both the Ai'my and Navy is so long and so well 
 understood that we cannot suppose Congress 
 ignorant or immindful of it. On the contrary, 
 in the absence of anything to indicate a dif- 
 
 ferent meaning, we must take it that Congress 
 used those words in their well known and ap- 
 propriate sense. It is significant that section 
 1457 provides that officers shall be placed on 
 the retired list of officers of the grade to which 
 they belonged, etc., and section 1487 that 
 officers shall "have the rank of commodore." 
 In the Navy personnel act of March 3, 1899, 
 section 9 (30 Stat., 1004), officers shall be re- 
 tired with the rank of the next higher gi'ade, 
 and in section 11, the language is the same. 
 In the act of June 29, 1906 (34 Stat., 554), the 
 language is, with the rank of one grade above 
 that actually held at the time of retirement. It 
 is quite safe to say that in these carefully pre- 
 pared enactments, when Congress said "grade" 
 it meant "grade," and that when it said 
 "rank" it did not mean grade. (26 Op. Atty. 
 Gen., 57.) 
 
 Section 1457 retired officers generally in their 
 then grade and rank, while by section 1481 the 
 staff officers there referred to were retired with 
 the rank of the next higher grade, thus making 
 a distinction in favor of the latter class. (26 
 Op. Atty. Gen., 57.) 
 
 Staff officers retired with the rank of a higher 
 grade are not entitled to bear the title of that 
 rank. They retain the grade and title actually 
 held by them on retirement. A retired staff 
 officer retired with the rank of commodore is 
 not above the grade of captain. (26 Op. Atty. 
 Gen., 57.) 
 
 Staff officers having the rank of captain on 
 the active list, but retired \^'ith the rank of com- 
 modore imder section 1481, Revised Statutes, 
 are not thereby advanced to the grade of com- 
 modore. Accordingly, the act of June 29, 1906 
 (34 Stat., 554), providing for advancement in 
 rank of officers on the retired list of the Navy 
 who served during the civil war, and exclud- 
 ing from its benefits officers who received an 
 advance in grade at or since retirement, did 
 not debar a staff officer who was retired with 
 the rank of commodore under section 1481. 
 An officer so retired received an advance in 
 rank, but not an advance in grade. (26 Op. 
 Atty. Gen., 57.) 
 
 A staff officer retired with the rank of rear 
 admiral under section 11 of the Na\'y personnel 
 act of March 3, 1899 (30 Stat., 1007), would not 
 enter the grade of rear admiral. If recalled to 
 active duty under section 1462, Revised Stat- 
 utes, he would reenter the service with the 
 rank and pay of the next higher grade; that is 
 to say, a medical director who has been retired 
 with the rank of rear admiral if recalled to the 
 service would enter with the rank and pay of 
 a rear admiral, but he woidd enter only from 
 the medical corps and as a medical director. 
 (22 Op. Atty. Gen., 436.) 
 
 The grade which a professor of mathematics 
 had at the time of his retirement was that of 
 professor of mathematics and not that of cap- 
 tain, which was his rank. (13 Comp. Dec, 
 241.) 
 
 In the Navy there are grades for duty, for 
 honor, and for pay. Some of them are made 
 grades by name, others by description. 
 (McCliu-e V. U. S., 18 Ct.Cls., 348.) 
 
 The next higher grade to captain, under 
 section 11 of the Na\7- personnel act of March 
 3, 1899 (30 Stat., 1007), is rear admiral of the 
 
 54641°— 22- 
 
 -41 
 
 635 
 
Sec. 1457. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 lower half. Congreps has croatod for purposes 
 of pay a diflerciice in the rank or grade of rear 
 admiral. Taking one step upward for the pur- 
 pose of pay, he pa^spes into and not over the 
 next ]>ay grade, which is that of the nine lower 
 numliers. (Gibson v V. S., 194 U. S., 182; 
 Ix)we V. U. S., 38 Ct. Cls.. 170; see also Terry v. 
 U. S., 39 Ct. Cls., 353, and note to sec. 1362, 
 R. S.V 
 
 The grade of an officer in the 'is&\y is his of- 
 ficial station, 1)y which are regulated his powers, 
 duties, and ]niy. His pay may be further 
 governed V>y his time of service within a grade, 
 either in fact rendered within the grade or 
 constructively performed therein through the 
 force of statutes. The office of professor of 
 mathematics is a gi-ade. (Roget v. V. S., 148 
 U. y., 1()7. Pay is now regulated by "rank" 
 instead of grade. See act of ^lay 13, 1908 (35 
 Stat., 127), pro\'iding that "hereafter all com- 
 missioned officers of the active list of the Navy 
 shall receive the same pay and allowances 
 according to rank and length of service," and 
 (35 Stat., 128) that "the pay of all commis- 
 sioned, warrant, and appointed officers and 
 enlisted men of the Na^y now on the retired 
 list shall be based on the pay, as herein pro- 
 vided for, of commissioned, warrant, and ap- 
 pointed officers and enlisted men of corre- 
 sponding rank and service on the active list.") 
 
 A captain in the line is merely a captain, 
 and has but one title to designate both his of- 
 fice and his rank. An officer of the staff has 
 an oflicial title to identify his position in his 
 corps, and also a relative rank in addition, the 
 latter being arbitrarily fixed by Congi-ess to 
 designate his relative rank in the ser\'ice in 
 accordance with the line standard. (22 Op. 
 Atty. Gen., 433; "relative" rank has now been 
 abolished and actual rank sulistituted in the 
 staff corps. See act Mar. 3, 1899. sec. 7, 30 
 Stat., 1005.) 
 
 In the engineer corps of the Naw there were 
 the grades of chief engineer, passed assistant 
 engineer, and assistant engineer. In the first 
 of these there were four ranks — captain, com- 
 mander, lieutenant commander, and lieuten- 
 ant; and in the second there were two ranks — 
 lieutenant and lieutenant (junior grade). 
 Certain passed assistant engineers with the 
 rank of lieutenant were, on account of civil- 
 war service, entitled to be retired with the 
 rank of the next higher grade, viz, chief 
 engineer. There being four ranks in the higher 
 grade, held, that the rank to which the officers 
 concerned were entitled, on account of civil- 
 war service, was the rank next above that 
 which they held in the lower grade, and that 
 the provisions of sections 1485 and 1486, Revdsed 
 Statutes, relating to precedence of staff officers, 
 did not operate to entitle them to a higher 
 rank. (26 Op. Atty. Gen., 496. See also note 
 to sec. 1390, R. S.) 
 
 The retirement of an officer with a higher 
 rank than that held by him on the active list, 
 pursuant to an act of Congress authorizing it, 
 does not confer upon him a new office. He 
 retains his former office, to which he had been 
 duly appointed, and acquires only new and 
 higher rank by the act of Congress authorizing 
 his retirement. The rank which is conferred 
 upon bim by act of Congress upon his retire- 
 
 ment is in no sense a constitutional api)oint- 
 ment to a new office. (Wood r. U. S.. 15 Ct. 
 Cls., 151; affirmed 107 U. S., 414.) 
 
 Congress may tran.«fer an officer from the 
 active to the retired list, and may change his 
 rank and i)ay on the active or retu-ed list at 
 any time, without coming in conflict with the 
 Constitution. (Wood v. U. S., 15 Ct. Cls., 151; 
 affirmed 107 U. S., 414.) 
 
 An officer on the active list may be retired 
 with a different rank from that which belongs 
 to his office, when Congress so proxades, without 
 a new appointment, as he continues to hold 
 the same office, but is transferred to the retired 
 list with a different rank. (Wood v. U. S., 
 15 Ct. Cls., 151; affirmed 107 U. S., 414.) 
 
 The effect of advancement of an officer on 
 the retired list on account of civil-war service, 
 in accordance ■nath the act of June 29, 1906 
 (34 Stat., 554), is not to place him in a different 
 grade, but to give him the rank and retii-ed pay 
 belonging to that grade. (26 Op. Atty. Gen., 
 433; 26 Op. Atty. Gen., 615.) 
 
 A lieutenant in the Navy retired with the 
 rank of lieutenant commander under section 9 
 of the Navy personnel act of March 3, 1899 (30 
 Stat., 1006), continued to hold the office of 
 lieutenant subsequent to his retii'ement. (14 
 Comp. Dec, 471.) 
 
 An officer projjerly appointed to any grade 
 on the active List may be retii-ed with a rank 
 higher or lower than that which belongs to his 
 office, if Congress see fit so to enact; but Con- 
 gress can not appoint to a new and different 
 office without coming in conflict with the 
 Constitution. (Moser v. U. S., 42 Ct. Cls., 86.) 
 
 Officers of the Navy advanced in rank on the 
 retired list, even where such advancement is 
 by law made subject to the advice and consent 
 of the Senate, are not entitled to commissions 
 in such advanced rank, as no exercise of the 
 appointing power is involved, the effect thereof 
 being merely a change of rank and not pro- 
 motion to a new and higher office. (File 26509- 
 33, Mar. 24, 1910, citing Wood v. U. S., 15 
 Ct. Cls., 151, 107 U. S., 414; 25 Op. Atty. Gen., 
 185; 25 Op. Atty. Gen., 312, 317; 26 Op. Atty. 
 Gen., 433; 26 Op. Atty. Gen., 487; 26 Op. 
 Atty. Gen., 615; file 26254-89, Aug. 11, 
 1908; see also Cloud v. U. S., 43 Ct. Cls., 69; 
 War Dept., Gen. Order No. 191, Dec. 21, 1904. 
 But see act Mar. 4, 1911, 36 Stat., 1354, pro- 
 viding that "commissioned officers of the 
 Army, Nav^, and Marine Corps on the retired 
 list whose rank has been or shall hereafter be 
 advanced by operation of or in accordance 
 with law shall be entitled to and shall receive 
 commissions in accordance with such advanced 
 rank.") 
 
 Rank as well as pay of retired officers is 
 entirely within the control of Congress; and a 
 new commission is not necessary where an 
 officer is entitled to be retii-ed with the rank to 
 which his seniority entitled him to be pro- 
 moted. (Cloud V. IT. S., 43 Ct. Cls., 69; but 
 see act Mar. 4, 1911, 36 Stat., 1354, quoted in 
 preceding paragraph.) 
 
 The President may send to the Senate for 
 approval of his action the names of officers on 
 the retired list of the Army nominated by him 
 for advancement under the act of April 23, 
 1904 (33 Stat., 264 j, after the adjoui-nment of 
 
 636 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1457. 
 
 the last session of Congress, but who died before 
 the convening of the present session; and ujwn 
 approval by the Senate, the personal represen- 
 tatives of the deceased officers will be entitled 
 to receive the advanced pay due such officers, 
 without further action by Congi-ess. WTiere, 
 however, a person is appointed to office, either 
 during a session or in a recess of the Senate, and 
 dies before confirmation, his personal repre- 
 sentatiA'es must be remitted to Congress for the 
 payment of salary earned by such officer. (25 
 Op. Atty. Gen., 312. See also 23 Op. Atty. 
 Gen., 413, concerning nunc pro tunc advance- 
 ment of officers no longer in the naval service.) 
 
 A retired officer of the Army who was placed 
 on the retired list by the President, under the 
 provisions of the act of April 23, 1904, with the 
 rank and retired pay of the next higher grade, 
 became entitled to the pay of the higher grade 
 from the date he was appointed and confirmed 
 to take the higher rank; and w^here the officer 
 died after his advancement by the President 
 but prior to the concurrence of the Senate, his 
 heirs are entitled to the increased pay due him 
 at the time of his death. (11 Comp. Dec, 693, 
 following, 25 Op. Atty. Gen., 312, and citing 
 25 Op. Atty. Gen., 185 and 299.) 
 
 A\^ere, under the pro\dsions of the act of 
 April 23, 1904, a retired officer of the Army ia 
 placed on the retired list with the rank and 
 retired pay of the next higher grade, such in- 
 creased pay attaches to said office from the date 
 he was actually placed on the retired list, and 
 neither requires an acceptance by the officer 
 nor permits of a declination by him. This was 
 not an appointment to a different office. The 
 rank and pay of officers of the Army are subject 
 to the control of Congress and such action cloea 
 not require a new appointment by the Pres- 
 ident. This is merely a change of rank and 
 pay. "Wlien an officer is so placed on the retired 
 list, the act of the President is complete and 
 irrevocable. (11 Comp. Dec, 448.) 
 
 An officer of the Navy was retired as a mid- 
 shipman; by act of March 3, 1883 (22 Stat., 472), 
 the title of the grade of midshipman was 
 changed to that of ensign, constituting a junior 
 grade, but without changing the rate of pay; 
 by act of June 26, 1884 (23 Stat., 60, sec. 2), 
 the grade of junior ensign was abolished, and 
 it was provided that the junior ensigns then on 
 the list should be commissioned as ensigns in 
 the Navy. Held, that the act last cited op- 
 erated to promote officers who had been retired 
 in the grade of midshipman or of ensign (junior 
 grade), to ensigns. (4 Comp. Dec, 628.) 
 
 The advancement in rank of an officer on the 
 retired list as a reward for civil-war service does 
 not create or constitute an office and is not 
 accomplished by an exercise of the appointing 
 power. In this case there is rank and pay 
 without the corresponding office. (25 Op. 
 Atty. Gen., 312; 25 Op. Atty. Gen., 185.) 
 
 Under a special act of Congress providing for 
 the advancement on the retired list from a prior 
 '!"+" -'to the next higher grade" of a chief 
 
 date 
 
 engmeer with the rank of captain, held, that 
 since he already occupied the highest grade and 
 rank as a chief engineer officer, '^it was not pos- 
 sible to give him a higher grade in that corps, 
 and in order to give any effect to the act it must 
 be construed as authorizing an advancement of 
 
 one grade in rank above that which he already 
 occupied; accordingly, that this officer be- 
 came entitled to the rank of rear-admiral from 
 the date stated in the act, and to the pay of a 
 rear-admiral of the lower half from that dale. 
 (9 Comp. Dec, 515; see also 22 Op. Atty. Gen., 
 433.) 
 
 Under the acts of March 3, 1899, section 11 
 (30 Stat., 1007), and June 29, 1906 (34 Stat., 
 554), authorizing the advancement under cer- 
 tain conditions of any retii-ed officer who served 
 during the civil war'to "the rank * * * of 
 one grade above that actually held by him at 
 the time of retirement," the officers affected 
 should receive an increase in rank ; accordingly, 
 where there exists more than one rank in the 
 next higher grade, although the language is sus- 
 ceptible of the meaning that the officer shall be 
 given some one of the ranks in said grade and 
 might be literally complied with, by giving him 
 any rank of the higher grade although it might 
 be no higher than that already held, the provi- 
 sion manifestly intended an" advancement in 
 rank and must be construed to reriuire that the 
 officer be retired with a rank higher than that 
 already held. (26 Op. Atty. Gen., 487.) 
 
 Under the pro\'isions of the act of June 29, 
 1906, providing for the advancement of officers 
 of the Navy not above the grade of captain, for 
 civil-war service, an officer of a staff corps in 
 the highest grade of his corps is entitled to the 
 pay of the next higher grade in the line of the 
 Navy. (13 Comp.^Dec, 617.) 
 
 [Congress fi-equently does not observe the dis- 
 tinction between "rank" and "grade" in legis- 
 lating for the Navy. Thus, in the case of 
 chaplains, Congress by act of June 29, 1906 
 (34 Stat., 554 ), as amended by act of June 30, 
 1914 (38 Stat., 404), provided for their promo- 
 tion to the "grades" of lieutenant, lieutenant- 
 commander, commander, and captain. In the 
 case of II. n. Rousseau, who occupied the grade 
 of ci\il engineer in the Navy with the rank of 
 commander, Congress, by act of ]\Iarch 4, 1915 
 (38 Stat., 1191), proA'ided for his advancement 
 from "commander" to the "grade" of rear- 
 admii-al of the lower nine. In the case of Guy 
 K. Calhoun, Congress, bj^ act of ]\ray 6, 1910 (36 
 Stat., 352), provided for his appointment as a 
 professor of mathematics, and his subsequent 
 promotion to the "grade" of lieutenant in the 
 corps of professors of mathematics. By section 
 423, ReAdsed Statutes, Congress provided that 
 the chief of the Bureau of Construction and 
 Repair should be an officer not below the 
 "grade" of commander and a "skillful naval 
 constructor." Numerous other instances exist 
 in the statutes in which "grade" is used in the 
 sense of "rank." "The interchangeability of 
 the words rank and grade throughout the stat- 
 utes leads me to the conclusion that they are 
 used synonymously, — especially when we find 
 them, as in section 1588, connected by a dis- 
 junctive, and with no indication that either 
 shall control." (17 Op. Attv. Gen., 154.) See 
 also 20 Comp. Dec, 199, "holding that the 
 words "grade" and "rank" as used in the act 
 of March 4, 1913 (37 Stat., 892), relating to 
 pay on promotion, are interchangeable and the 
 equivalent of "office," and that the advance- 
 ment contemplated by that act is an advance- 
 ment in office; and 19 Op. Atty. Gen., 171, 
 
 637 
 
Sec. 145' 
 
 Pi. 2. REVISED STATUTES. 
 
 The Navy. 
 
 wlu'ic use of word "tirade" in section 1480, Re- 
 vised Statutes was held to be obvious error of 
 the revisers; and see notes to sections 421, 
 422, 42;^ and VM)2, Revised Statutes. On the 
 other hand Congress has repeatedly legishited 
 withspecitic reference to the recognized dis- 
 tinction between "rank" and "grade", as, for 
 example, in the act of May 22, li)17, section 
 20 (,40 Stat., 89), providing that '-hereafter all 
 laws relating to the examination of otticers of 
 the Navy for promotion shall be construed to 
 ap]ilv to the regular advancement of staff 
 oflicers lo higher ranks on the active list the 
 same as though such advancements in rank 
 were promotions to higher grades."] 
 
 When retirement or advancement on 
 retired list takes effect. — See note to 
 section 1144, Revised Statutes; see also note 
 to section 1458, Revised Statutes, "Antedating 
 rank on promotion." 
 
 The retirement of an officer of the Navy, on 
 his own application under section 1443, Re\'ised 
 Statutes, becomes legally effective so as to 
 create a vacancy on the active list to which a 
 promotion may be made, upon the President's 
 approval of the officer's application for retire- 
 ment. (32 Op. Atty. Gen., 176; this is con- 
 trary to the decision previously made by the 
 Navy Department in the same case. See file 
 28687-22:3, Jan. 9, 1919.) 
 
 The law does not recognize fractional parts of 
 a day in the matter of retirements, promotions, 
 aiul appointments in the Army. Vacancies 
 caused by the retirement of officers from active 
 service do not begin to run until the day fol- 
 lowing the date their retirement becomes 
 legally effective. (16 Comp. Dec, 682.) _ 
 
 An officer of the Army who is retired is en- 
 titled to the full pay of the active list until he 
 receives notice of his retirement, unless receipt 
 of such notice is prevented by his own act or 
 default. (Dig. Comp. Dec, 170; 12 Comp. 
 Dec, 628; file 26260-3237:1, Aug. 25, 1915; 
 Comp. Dec, Aug. 21, 1918. Appeal No. 
 28230, file 28687-22:3.) 
 
 An officer of the Marine Corps was found 
 incapacitated for active service, resulting from 
 an incident of the service. The finding was 
 appro\ed by the President May 4, 1908. On 
 May 1 1 , 1908, the following order was issued to 
 him: "The President of the United States 
 having placed you on the retired list of officers 
 of the United States Marine Corps from and in- 
 cluding May 4, 1908, you are hereby detached 
 from Headquarters, United States Marine 
 Corps, will proceed to your home, and report 
 your arrival and address to this office. ' ' Held, 
 that claimant having been placed on the re- 
 tired list by order of the President on May 4, 
 1908, is not thereafter entitled to active-duty 
 pay and allowances. Having been paid active- 
 duty pay to and including May 11, 1908, the 
 overpayment of difference between active- 
 duty and retired pay from May 5, 1908, to May 
 11, 1908, shoula be disallowed. (17 Comp. 
 Dec, 533. But see contra Dig. Comp. Dec, 
 170, 12 Comp. Dec, 628, and Comp. Dec, 
 Aug. 21, 1918, noted above.) 
 
 While in the case of an officer who resigns his 
 commission it is necessary to communicate to 
 him the acceptance of such resignation, yet the 
 same conditions do not exist where a change 
 
 of stains is uivolvcd, such as the transfer of an 
 officer from the active to the retired list, and 
 the fact is commuiiicalcd to the officer con- 
 cerned only to inl'orm him that he hds been 
 retired on or from a certain date. (File 26543- 
 62:1 Aug. 2S, 1911.) 
 
 Under section 9 of the Navy personnel act 
 of March 3, 1899 (30 Stat., 1004), a lieiitenant 
 commander (Alfred A. Pratt) was designated 
 for retirement by the Board for Selection for 
 Retirement, convened on June 1, 1911. Said 
 act provided that the findings of said board 
 should be transmitted to the President, "who 
 shall thereupon, by order, make the transfers 
 of such officers to the retired list as are selected 
 by the board." On July 3, 1911, the President 
 approved the proceedings, findings, and recom- 
 mendation of the board and directed that the 
 officers selected, including Lieutenant Com- 
 mander Pratt, "will be retired from active 
 service in accordance with section 9 of the act 
 approved I\Iar<'h 3, 1899, above referred to." 
 Held that this action of the President had the 
 effect of remo\'ing Lieutenant Commander 
 Pratt from the active list, although not com- 
 municated to htm, and accordingly that on the 
 date of his death, July 4, 1911, he was no longer 
 on the acti^'e list but was an officer on the retired 
 list, and therefore the provision of law (act 
 May 13, 1908, 35 Stat., 128) for the payment of 
 a death gratuity to beneficiaries of officers who 
 die while on the active list would not be 
 applical>le to his case. It would seem, upon 
 authority of 22 Op. Atty. Gen., 657, that Lieu- 
 tenant Commander Pratt's retirement was 
 effective from June 30, 1911, as section 9 of the 
 Navy personnel act provided that "the promo- 
 tions to fill the vacancies thus created shall date 
 from the thirtieth day of June of the current 
 year," but, irrespective of this, it is clear that 
 his retirement was effective prior to his death, 
 which occm-red after the President's action. 
 (File 26543-62:1, Aug. 28, 1911. 
 
 Retirements made under sections 8 and 9 of 
 the Navy personnel act of March 3, 1899 (30 
 Stat., 1004), were legally effective on the 
 thirtieth day of June of the current year, al- 
 though the President's order approving such 
 retirements may have been dated subsequent 
 to June 30, and the Secretary of the Navy may 
 have notified the officers concerned that they 
 would be placed on the retired list from July 
 12. The intention of Congress was plainly ex- 
 pressed in these two sections of the personnel 
 act, that the vacancies provided for were to 
 occur or be created for the fiscal year ending 
 Jtme 30. If there were any doubt about this 
 interpretation of the law, it would be removed 
 by the provision in section 9, that "the promo- 
 tions to fill vacancies thus created shall date 
 from the thirtieth day of June of the current 
 year." Tliis construction is not only warranted 
 by the language of the law, but it conduces to a 
 methodical and orderly administration of these 
 sections. It results in making all the vacancies 
 created under the provisions of the two sectioiis 
 take effect on the last day of the fiscal year, 
 and the promotions made to fill such vacancies 
 go into effect on the day immediately following 
 the last day of the fiscal year, viz, on the first 
 day of July of the current year. Accordingly, 
 held that the order of the President, though 
 dated on July 1, 1899, had the effect to retire 
 
 638 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1457. 
 
 Lieutenant Commander William H. Driggs on 
 June 30, 1899, under the provisions of section 8 
 of the Navy personnel act of March 3, 1899, and 
 thus create a vacancy for and within the fiscal 
 year ending with that day, and that the promo- 
 tion of Lieutenant Walter McLean to fill the 
 vacancy thus created should date from said 
 30th day of June. In other words, his promo- 
 tion and his commission in pm-suance thereof 
 should bear date as of July 1, 1899; and he is 
 entitled to the grade and rank indicated in his 
 said commission, together with the emoluments 
 attached, from and including that date. (22 
 Op. Atty. Gen., 657.) 
 
 By special act of Congress, March 4, 1911 
 (36 Stat., 1346), it was provided: "That the 
 Presiclent of the United States be, and he is 
 hereby, authorized to place Ci^'il Engineer 
 Robert E. Peary, U. S. Navy, on the retired 
 list of the Corps of Ci^dl Engineers with the 
 rank of rear admiral, to date from April sixth, 
 nineteen hunched and nine, with the highest 
 retired pay of that grade under existing law 
 * * *." Pm-suant to this act the President 
 commissioned Peary on March 13, 1911, as a 
 civil engineer in the Navy', with the rank of 
 rear admiral on the retired list from April 6, 
 1909, and it was held by the Comptroller of 
 the Treasury, in a decision dated Jime 5, 1911 
 (17 Comp. Dec, 919), that he should be given 
 the retired pay of a rear admiral under the act 
 in his case from April 6, 1909, the date speci- 
 fied therein. As to the date of the vacancy 
 in the Corps of Civil Engineers created by 
 Peary'g retirement, held that Mr. Peary was, 
 in law and in fact, a civil engineer on the active 
 list of the Na\y until March 13, 1911; that Con- 
 gress did not by the above act effect any 
 change in the status of Mr. Peary prior to its 
 enactment; that Congress undoubtedly had the 
 authority to pro\-ide that Peary should be 
 treated as a retired officer ■n'ith the rank of rear 
 admiral during the period from April 6, 1909, to 
 March 13, 1911, but it could not, by legislative 
 enactment, change thef act asit actually existed, 
 that during aU of said period he was a ci^^.l 
 engineer on the active list of the Navy (citing 
 Potts V. U. S., 125 U. S., 173; Burchard v. U. S., 
 125 U. S., 176; 27 Op. Atty. Gen., 222; and 
 file 26256-lOa, Jan. 25, 1909); and accord- 
 ingly that the officers promoted because of the 
 retirement of Civil Engineer Peary should be 
 given the date of the vacancies caused by the 
 actual retirement of that officer and not the date 
 from which his retirement was made to take 
 effect. Had Congress intended that the officers 
 promoted to fiU vacancies caused by the retire- 
 ment of Peary should be given the same date 
 as that from which his retirement was made to 
 take effect, it might easily have so stated 
 in the act, as was done in section 9 of the Navy 
 personnel act of March 3, 1899 (30 Stat., 1004), 
 which pro\aded in express terms that "the 
 promotions to fill the vacancies thus created 
 shall date from the thirtieth day of June of the 
 current year." By so doing Congress would 
 have produced all the results which would 
 have followed had Peary actually been retired 
 on April 6, 1909; but even then the fact as it 
 actually existed would not have been changed. 
 Mr. Peary was not retired on April 6, 1909, and 
 there accordingly existed no vacancy on that 
 
 date by reason of his retirement, and nothing 
 that Congress might say in an act passed nearly 
 two years later could change this fact. (File 
 26255-83:4, Aug. 4, 1911, overruUng file 26255- 
 83:3, Mar. 25, 1911.) 
 
 An officer of the Navy who, by authority of a 
 special act of Congress, is placed on the retired 
 list with the rank and highest rethed pay of a 
 rear admiral from a prior date, is entitled to the 
 retired pay of a rear admiral of the upper half 
 from the date of his taking rank on the retired 
 list, this being a higher rate than he has re- 
 ceived. ^\^len Congress authorizes the dating 
 back of a commission, it intends to give the 
 officer pay from such date, imless otherwise 
 expressed. (17 Comp. Dec, 919, citing Mc- 
 Alpme V. U. S., 27 Ct. Cls., 493.) 
 
 The advancement in rank of an officer on the 
 retired list of the Army for civil-war service 
 may be made to relate back to tlie date of the 
 act authorizing such advancement. The gen- 
 eral rule is that laws speak from the date of 
 their enactment, and where something re- 
 mams to be done (nomination and concurrence 
 of the Senate) not inconsistent with a relation 
 back when it is done, the general rule may be 
 applied. (25 Op. Atty. Gen., 299.) 
 
 In accordance with a special act of Congress 
 approved January 30, 1903, the President by 
 and with the advice and consent of the Senate 
 appointed a designated person to the office of 
 passed assistant engineer on the retired list of 
 the Navy, from October 13, 1868. At the date 
 of said act the officer was on the retired list 
 of the Na^y as a second assistant engineer, hav- 
 ing been so retired in 1873. Held, that in this 
 case, while the commission pursuant to the 
 special statute was dated in February, 1903, the 
 appointment related back to October 16, 1868, 
 and was a nunc pro tunc appointment, having 
 the same effect as if the appointment had been 
 made originally on that date. (9 Comp. Dec, 
 572.) 
 
 A retired officer of the Navy, under a special 
 act of Congress, was appointed to a higher grade 
 on the active list and immediately transferred 
 to the retired list with the retired pay of that 
 grade. This did not effect a new retirement, 
 nidUfying the original retirement, but merely 
 effected an advancement on the retired list in 
 ptursuance of the usual legislative method 
 adopted for that pmpose. The obvious inten- 
 tion, meaning, and effect of the act simply was 
 to advance the officer already on the retired 
 list one grade on that list. He is therefore 
 debarred from the benefits of an act which ap- 
 plies only to officers who have not received an 
 advance of grade at or since the date of their 
 retu-ement. (26 Op. Atty. Gen., 111.) 
 
 \Miere an officer of the Army is retii-ed with 
 the rank to which his seniority entitled him to 
 be promoted, in accordance with the act of Oc- 
 tober 1, 1890 (26 Stat., 562). his advancement in 
 rank and retirement are, for practical purposes, 
 simultaneous, for when the officer is retired he 
 is also promoted, and it can not, therefore, be 
 accurately described as '"an advance in grade 
 since the date of his retirement." The use of 
 the word " since" would be inappropriate when 
 no appreciable period of time intervenes 
 between the two events. The promotion of 
 officers at the moment of retirement, under the 
 
 639 
 
Sec. 1457. 
 
 Pt.^. RE VI f^ ED STATUTES. 
 
 The Navy. 
 
 act of October 1, 1890, can hardly be said with 
 projirioty to be a favor. They would have 
 been ontitled to the same ])romotion on the 
 active list but for cause.'' creditable to them and 
 establishiuir a claim to the country's fjratitude, 
 wliich operated to prevent such ]>romotion. 
 By iriviu,::; the promotion at the moment of or as 
 an incident to retirement, the (Jovernment is 
 just rather than generous. Accordinu'ly, held 
 that the otlicers in question did not receive an 
 advance of srrade since the date of their retire- 
 ment, but are entitled to the benefits of the act 
 of April 23, 1904 (33 Stat. 264), relating to ad- 
 vancement on the retired list for civil-war 
 service. (27 Op. Atty. Gen.. 212, overruling 
 25 Op. Attv. Gen.. 158, which was atl'irmed in 
 25 Op. Atty. Gen.. 514, both of which latter 
 opinions are noted below.) 
 
 An ofhcer who fails physically upon examin- 
 ation for j)romotion aTid is retired with the rank 
 to which his seniority entitled him to be pro- 
 moted, in accordance with the act of October 1, 
 1890 (26 Stat., 562), thereby receives an ad- 
 vance of grade after the date of his retirement, 
 and is accordingly. excluded from the benefits 
 of a statute which is restricted in its application 
 to an oflicer who has not "received an advance 
 of grade since the date of his retirement." (25 
 Op. Atty. Gen., 158; overruled by 27 Op. Atty. 
 Gen., 212, noted above.) The act of October 1, 
 1890, does not authorize the advancement of an 
 oflicer found physically disqualified to the next 
 higher grade on the active list, and his retire- 
 ment, after having been so advanced, with the 
 rank of such higher grade. (25 Op. Atty. Gen. , 
 514, affirming 25 Op. Atty. Gen.. 158. which 
 was subsequentlv overruled by 27 Op. Atty. 
 Gen., 212.) 
 
 An officer of the Na^^ examined for promo- 
 tion who fails physically and is retired, is prop- 
 erly given the rank of the higher grade on the 
 retired list, under the act of March 4, 1911 
 (36 Stat., 1267), from the date of the vacancy to 
 which he would have been promoted on the 
 active list, if qualified. (File 27231-89, Apr. 19, 
 1917.) The same rule has been applied to the 
 retirement of officers of the Marine Corps under 
 the same conditions. (File 26260-3237:1, Aug. 
 25, 1915; C. M. O. 29—1915. p. 9; see also file 
 26260-3604:2, Oct. 16. 1916.) However, date of 
 rank should not be changed where already fixed 
 under a different rule prcAdously existing. (C. M. 
 O. 35—1915. p. 11; file 27231-89, Apr. 19. 1917.) 
 
 The actual retirement of an officer who fails 
 physically in line of duty upon examination for 
 promotion should not take place before the 
 occurrence of the vacancy to which he would 
 have been promoted if qualified , he having been 
 examined prior to the existence of the vacancy. 
 (File 26260-1658, May 6, 1912, case of First 
 Lieut. E. S. Yates. U. S. U. C.) 
 
 Action of the President is necessary before the 
 retirement of an Army officer can be made ; the 
 provision of the act of February 2, 1901, section 
 32 (31 Stat., 756). that "if upon examination 
 the officer be found disqualified for promotion, 
 he shall, upon the approval of the proceedings 
 by the Secretary of War, be treated in the same 
 manner as if he had been examined prior to 
 promotion '' does not have the effect of depriv- 
 ing the officer of the difference between retired 
 pay and active-duty pay from the date of the 
 
 vacancy to which he would have been promoted 
 had he successfully passed the examination. 
 In this case the officer, a second lieutenant, was 
 retired with the rank of first lieutenant on 
 March 15, 1906, "to date from June 18, 1904," 
 the date he would have been promoted to the 
 grade of first lieutenant had he been found 
 qualified. (12 Comp. Dec, 628; file 26260- 
 3237:1, Aug. 25, 1915.) 
 
 Bank on retirement of oflBlcer holding 
 recess appointment. — The acf^eptance by an 
 Army officer of a recess appointment is pro- 
 visional only and leaves to the officer a rever- 
 sionary right to his former office in case his new 
 appointment is not confirmed by the Senate. 
 An Army officer who accepts a recess promotion 
 and thereafter becomes eligible for retirement 
 by reason of age before theadjournment of Con- 
 gress and before the appointment is acted upon 
 by the Senate, is entitled to the rank of his new 
 appointment. (29 Op. Atty. Gen., 598. See 
 also note to sec. 1458, R. S., "Status of officer 
 pending confirmation by Senate of his promo- 
 tion.") 
 
 Rank on retirement of officer failing to 
 quaUfy for promotion. — The privilege which 
 an oflicer has of retirement "with the rank to 
 which his senioritv entitles him to be pro- 
 moted," given by the act of October 1, 1890 (26 
 Stat., 562), is limited to cases where the oflicer 
 fails in his physical examination only. (Stein- 
 metzi;. U. S., 33 Ct. Cls.. 404.) 
 
 Under the clause in the act of March 4, 1911 
 (36 Stat., 1267), pro\idinw that officers of the 
 Navy who fail physically, in line of duty, upon 
 examination for promotion, shall be retired 
 with the rank to which their seniority entitled 
 them to be promoted. Held, that an ensign 
 examined for promotion to lieutenant (junior 
 grade), found not physically qualified, and 
 subsequently ordered to appear before a retiring 
 board, which latter board finds him incapaci- 
 tated by reason of physical disability incurred 
 in line of duty, should be retired in the rank of 
 lieutenant (junior grade), although in the mean- 
 time a vacancy occurred in the grade of lieu- 
 tenant to which he would have been entitled 
 to promotion by seniority had he qualified but 
 for which he was never examined or ordered up 
 for examination. (File 26253-200:1, Feb. 17, 
 1912.) 
 
 It may be true that if Ensign Allen had 
 qualified for promotion to lieutenant (junior 
 grade) and been commissioned in that grade, 
 he would have become the senior lieutenant 
 (jimior grade) and thereby entitled to the 
 vacancy in the grade of lieutenant, provided he 
 qualified therefor. But the fact remains that 
 Ensign Allen never qualified for the grade of 
 lieutenant (junior grade), and was never com- 
 missioned therein, and the question of his 
 rights if he had so qualified and been promoted 
 cannot now be considered. Never having occu- 
 pied a position in the grade of lieutenant (jtm- 
 ior grade) on the active list, it follows that he 
 never acquired' seniority in that grade. The 
 fact is, at the time the vacancy occurred in the 
 grade of lieutenant to which it is suggested he 
 was entitled to promotion by seniority, there 
 were officers in the grade of lieutenant (junior 
 grade) senior to Allen, who was then only in 
 the grade of ensign, notwithstanding that he 
 
 640 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1457. 
 
 would have become senior to them had he been 
 promoted to the gi-ade of lieutenant (jimior 
 grade). (File 26253-200:1, Feb. 17, 1912). 
 
 A captain in the Na^^, found disqualified 
 by reason of physical disability contracted in 
 the line of duty, upon examination for promo- 
 tion by seniority to the grade of rear admiral, 
 and retired in accordance -with the pro\-isiona 
 of the act of March 4, 1911, is entitled to the 
 retired pay of a rear admkal of the lower half 
 only, not^\•ithstanding that, had he been quali- 
 fied for promotion and actually been promoted, 
 he would have been, at the time of his retire- 
 ment, a rear admiral of the upper half. (22 
 Comp. Dec, 671). 
 
 It may be true that if Captain Tappan had 
 been found qualified on examination he would 
 have been promoted to the grade of rear 
 admiral, and by the time of his retirement 
 would have been entitled by seniority to be a 
 rear admii'al of the upper half. But as a matter 
 of fact he was not found qualified on examina- 
 tion. He never attained the rank of rear ad- 
 mu-al of the lower half on the active list, and 
 therefore never acquired by seniority the right 
 to be promoted to rear admu'al of the upper 
 half. The seniority of Capt. Tappan entitled 
 him to be promoted to the next higher grade 
 or rank; the next -higher grade or rank to that 
 of captain in the Na-s-y is rear admiral of the 
 lower half (citing Gibson v. U. S., 194 U. S., 
 182). (22 Comp. Dec, 671; Tappan v. U. S., 
 54 Ct. Cls., 76.) 
 
 The "seniority" to which the ofiicer is en- 
 titled is that of the rank for which, upon 
 "examination for promotion," he has been 
 "found incapacitated for serA-ice by reason of 
 physical disability contracted in the line of 
 duty." The grade or rank for promotion to 
 which the officer has been foimd physically 
 disqualified upon his examination is the only 
 one within the intent of the law to which he 
 is entitled to be promoted. Not only seniority 
 for a particular gi'ade but also the finding of 
 an examining board that the officer is not physi- 
 cally qualified for that very grade, are both 
 requisite to entitle him to retkement in such 
 grade. (File_26253-200:1, Feb. 17, 1912.) 
 
 A captain in the Marine Corps became due 
 for promotion to the grade of major from Aug- 
 ust 29, 1916, by reason of the naval appro- 
 priation act of that date which created a 
 number of original vacancies in the various 
 grades of the Marine < 'orps. He failed physi- 
 cally for promotion and was retired. In the 
 meantime, an officer in the grade of major 
 failed upon examination for promotion to the 
 grade of lieutenant colonel, to fill a vacancy 
 created in that grade on August 29, 1916. Had 
 the captain been promoted to the grade of 
 major, he would have been number one in 
 that gi'ade and would thus have become due 
 by seniority for promotion to the grade of 
 lieutenant colonel from August 29, 191^6, to fill 
 the vacancy for which his senior had failed to 
 qualify. Held, that under the act of October 1, 
 1890, made applicable to the I^Iarine Corps by 
 act of July 28, 1892, the captain mentioned was 
 entitled by reason of his seniority to be retired 
 with the rank of major and not ^vith the rank of 
 lieutenant colonel. (File 26260-3604:2, Oct. 
 16, 1916). 
 
 A passed assistant pajonaster was examined 
 for promotion to the grade of paymaster, and 
 found not physically qualified, which finding 
 was approved by the President February 10, 
 1916. The candidate was then ordered before 
 a retiring board, which found him incapaci- 
 tated, due to disability incurred in line of duty, 
 which finding was approved by the President 
 March 14, 1916. Under the act of l^Iarch 4, 
 1911, he became entitled on retirement to the 
 rank to which his seniority entitled him to be 
 promoted. In the grade of paymaster there 
 were the ranks of lieutenant and lieutenant 
 commander. Under the law as it then stood 
 staff officers were examined for promotion in 
 grade, without regard to the rank which they 
 would receiie on promotion, the rank being 
 governed by the status of the line officer next 
 after whom they took precedence. Usually, 
 if qualified, the officer's rank on promotion 
 would be the lower rank in the upper grade. 
 However, where his examination was delayed 
 it might happen that the officer, if qualified, 
 would on promotion be entitled to the higher 
 rank in the grade to which promoted. In thia 
 case, on the date that the otficer became due 
 for promotion, he would have been entitled, 
 if promoted, only to the rank of lieutenant, 
 but by reason of delay in his examination, on 
 February 10, 1916, the date on which he was 
 found not physically Ciualified for promotion, 
 he would have been entitled, if promoted, to 
 the rank of lieutenant commander in the grade 
 of pa\Tnaster, that being the rank of his "run- 
 ning mate" in the line. Held, that the rank 
 to which his seniority entitled him to be pro- 
 moted, within the meaning of the act of 
 March 4, 1911, was the rank of lieutenant 
 commander, and accordingly that this offi- 
 cer should receive that rank on the retired list. 
 (File 26253^65:2, Mar. 16, 1916). 
 
 For other cases, see above, "WTien retire- 
 ment or advancement on retired list takes 
 effect," and see 21 Op. Atty. Gen., 385, noted 
 under section 1448, Revised Statutes, "Physical 
 examination for promotion not sufficient for 
 retirement." 
 
 Restoration of retired officer to active 
 list.^See section 1465, Pevised Statutes, and 
 note thereto; see also note to section 1459, 
 Revised Statutes. 
 
 Status of officer illegally retired. — An 
 officer whose name is placed on the retired list 
 of the Army by the Secretary of ^^'ar, in ap- 
 parent compliance with jirovisions of law, is an 
 officer de facto if not de jure, and money paid 
 to him as salary can not be recovered back by 
 the United States. (Badeau v. U. S., 130 
 U. S., 439.) 
 
 Correction of erroneous retirement. — 
 See notes to sections 1408, 1452, and 1454, 
 Revised Statutes. 
 
 The President has no power to correct the 
 retirement of an oflicer so as to give him in- 
 creased rank from the date of his original re- 
 tirement, where the law which is claimed to 
 entitle the officer to the higher rank has been 
 repealed: mistakes, if any, made in the execu- 
 tion of an act which is subsequently repealed, 
 can not be rectified bv executive action after 
 such repeal. (17 Op.' Atty. Gen., 60.^ 
 
 641 
 
Sec. 1457. 
 
 PL 2. RF. VISED STATUTES. 
 
 The Navy. 
 
 Where an officer was found incapacitated for 
 active service by reason of wounds received in 
 battle, and the President directed that, in 
 accordance with such Jindin?, he be placed on 
 the retired list of the Army with the hii^her rank 
 to which such disability entitled him: Udd, 
 that the President had the right to revoke said 
 order before it was actually executed and before 
 it had reached the olficer concerned, it appear- 
 ing that the officer's disability was not caused 
 by wounds received in battle; held further, 
 that e^ en had the original order been executed 
 and delivered to the officer and his name 
 placed on the retired list with increased rank, 
 it would be the duty of the President to correct 
 such action and place the officer on the retii'ed 
 list with the actual rank which he held at the 
 time of retirement. (17 Op. Atty. Gen., 7, 
 construing act July 28, 1866, sec. 32, relating 
 to the Army.) 
 
 On Februarj^ 22, 1869, by direction of the 
 President, Paymaster Gen. Benjamin W. Brice 
 was retired from active service, and on the same 
 day Asst. Paymaster Gen. Nathan W. Brown 
 was nominated to be Paymaster General vice 
 Brice, retired; Deputy Paymaster Gen. Hiram 
 Leonard to be Assistant Paymaster General vice 
 Brown, promoted; Paymaster Benjamin Alvord 
 to be Deputy Paymaster General, \dce Leonard, 
 promoted; and Virgil S. Eggleston to be pay- 
 master, vice Alvord, promoted. On March 3 
 the Senate adAdsed and consented to the ap- 
 pointment of Eggleston to be a paymaster in 
 the Army. The nominations of the others were 
 not consented to by the Senate. On March 5, 
 by direction of the President, the order placing 
 Paymaster Gen. Brice upon the retired list was 
 revoked, and he was to be considered as on 
 duty as Paymaster General from February 22, 
 the date of his retirement. Held, that there 
 was and is no vacancy in the office of pay- 
 master to which Eggleston could be appointed, 
 as Alvord was not removed from the office of 
 paymaster unless he was appointed Deputy 
 Paymaster General, and had accepted the ap- 
 pointment, and he was not so appointed, as the 
 Senate had not advised and consented thereto, 
 and the law provides that no officer in the 
 Army shall, in time of peace, be dismissed 
 from service except upon and in pursuance of 
 the sentence of a court-martial to that effect or 
 in commutation thereof. (13 Op. Atty. Gen., 
 44; but see 23 Op. Atty. Gen., 30, noted under 
 sec. 1363, R. S., "Effect of nomination and 
 confirmation of an officer for appointment to 
 grade already full.") 
 
 The retirement of an officer of the Marine 
 Corps on furlough pay, under section 1454, 
 Revised Statutes, was in error, as said section 
 does not apply to the ^larine Corps. Accord- 
 ingly, so much of the President's order relating 
 to this officer's retirement, as provided that he 
 should receive only furlough pay, must be 
 treated as of no effect. (15 Op. Atty. Gen., 
 442.) 
 
 Executive orders accomplish retirement only 
 as they apply to particular cases and when not 
 in conflict with the law. It is the law which 
 gives the right, which fixes the officer's status, 
 and consequent pay, and not the recommenda- 
 tion of a retiring board, even though supple- 
 mented by orders which have met the approval 
 
 of the President. And where the decision will 
 turn exclusively upon the proper construction 
 of a statute, an executive order is not final nor 
 binding on the court. (Cloud r. U. S., 43 
 Ct. Cls., 69.) 
 
 The refusal of the head of the administrative 
 department to recognize a retired officer as of 
 the rank to which he is entitled by law, does 
 not deprive the Court of Claims of jurisdiction 
 toallowthe officer the pay of such rank. (Cloud 
 V. U. S.. 43 Ct. Cls., 69.) 
 
 Courts can not order retirement of 
 oflB.cers. — Where an officer of the Army has 
 been examined for promotion, and upon failure 
 to qualifyis honorably discharged from the serv- 
 ice, the courts are without jurisdiction to 
 order him placed on the retired list upon his 
 petition setting forth that he had been found 
 by a board physically incapacitated for serAice 
 and that he was thereby entitled to be retired 
 and entitled to retii'ed pay during life, instead 
 of being dismissed with one year's pay. The 
 report of the board is not final, but must be 
 approved or disapproved by the President. 
 This is the only relief from the errors or injus- 
 tice that may be done by the board which is 
 provided . The courts have no power to roAiew. 
 The courts are not the only instrumentalities 
 of the Government. They can not command 
 or regidate the Army. To be promoted or re- 
 tired may be the right of an officer, the value 
 to him of his commission, but greater even than 
 that is the welfare of the country, and it may 
 be, even its safety, through the efficiency of the 
 Army. (Reaves v. Ainsworth, 219 U. S., 296.) 
 
 Where it was provided by law that retired 
 officers who served during the ciAdl war should 
 be entitled to the rank and retired pay of the 
 next higher grade, and the Navy Department 
 decided that a particular officer was not en- 
 titled to the benefits of the act, a decision of the 
 Court of Claims (Moser v. U. S.. 42 Ct. Cls., 86), 
 holding that the officer was entitled to the re- 
 tired pay of the next higher grade, and pur- 
 porting to decide that he was also entitled to 
 the rank of such grade, does not estop the Sec- 
 retary of the Na\'y from contesting the officer's 
 claim to the rank of such higher grade. (28 
 Op. Atty. Gen.. 352; Moser r. Meyer. 38 App. 
 D. C, 13.) 
 
 For other cases, see note to section 417, Re- 
 vised Statutes. 
 
 Authority of the Secretary of the Navy 
 to determine grade of retired oflB.cer.— 
 WTiatever, if any. duty the Secretary of the 
 Navy has about the matter of placing names 
 upon the retired list, it is not that he liimself 
 shall settle the question of grade or of retire- 
 ment, but after a determination of those ques- 
 tions by the President, with whom they lie, to 
 give effect to his directions. Should the Presi- 
 dent in fact retire an officer with a certain grade, 
 and the Secretary of the Navy decline to enter 
 the name of the officer upon the list as of that 
 grade, there might be room to make a good argu- 
 ment showing that his duty to do so was minis- 
 terial and ought to be controlled by mandamus ; 
 but when the President retires one with a cer- 
 tain grade, or in a certain grade, there isno where 
 in the law any authority at all for the placing of 
 that name on the retired list as of another or dif- 
 
 642 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1457. 
 
 ferent grade. (Moser v. Meyer, 38 App. D. C, 
 13.) 
 
 An officer was retired pursuant to the express 
 direction and approval of the President, who 
 by order did retire the officer as a captain of the 
 Navy, and at no time at or since such retirement 
 did the President confer a higher rank or office 
 upon said officer. The President, then, having 
 actually retired the officer with the grade of 
 captain, it can not be said that there rested upon 
 the Secretary of the Navy a duty to accord to 
 the officer upon the Navy Register a different 
 grade. In short, the position of the officer 
 comes to no more than this; that he has been 
 retired by the President with the grade of cap- 
 tain, while he conceives himself to be entitled 
 to retirement with the rank of rear admiral; 
 he asks that the Secretary of the Navy be re- 
 quired, through the writ of mandamus, to place 
 his name upon the retired list with the rank of 
 rear admiral, which the President declined to 
 accord him. For this, there is neither duty, 
 authority, nor power in the Secretary of the 
 Navy; therefore, no room for a mandamus to go. 
 (Moser v. Meyer, 38 App. D. C, 13.) 
 
 Physical examination for promotion not 
 sufficient for retirement. — See note to 
 section 1448, Revised Statutes. 
 
 Difference between retirement and 
 waiting orders. — There is a well-recognized 
 distinction between "retirement" and "wait- 
 ing orders" (see sees. 1443, et seq.; sec. 1556); 
 and an officer [Revenue-Cutter Service — now 
 Coast Guard] placed on "permanent waiting 
 orders " was not thereby retired. (21 Op. Atty. 
 Gen., 286; see also 11 Comp. Dec, 762.) 
 
 Difference between retirement and dis- 
 charge. — An Army officer by his retirement 
 is not discharged from service or out of the serv- 
 ice. (U. S. V. Gillmore, 189 Fed. Rep., 761.) 
 
 For other cases, see above, " Status of retired 
 officers; part of the Navy." 
 
 Residence of retired oflacer. — A retired 
 officer of the Navy or Marine Corps is not 
 required to remain at his official residence; he 
 may go at his pleasure to any point within the 
 United States, or travel from point to point, 
 the only requirement being that he keep the 
 Navy Department advised of his present 
 address, his official residence remaining as 
 recorded at the Department. Under the Navy 
 Regulations he is not authorized to change his 
 official residence without permission of the 
 Bureau of Navigation. A retired officer of the 
 Marine Corps relieved from duty and ordered 
 to his home is entitled to mileage only from the 
 place he is relieved from duty to his official 
 residence. (17 Comp. Dec, 952.) 
 
 There is no law or regulation which limits 
 the selection of the home of an officer on retire- 
 ment from active service to a place within the 
 continental limits of the United States. (18 
 Comp. Dec, 638.) 
 
 The Army mileage law of June 12, 1906 (34 
 Stat., 246), which provided "that when the 
 station of an officer is changed while he is on 
 leave of absence he will, on joining the new 
 station, be entitled to mileage for the distance 
 to the new station from the place Avhere he 
 received the order directing the change pro- 
 viding the distance be no greater than from the 
 old to the new station; but if the distance be 
 
 greater he will be entitled to mileage for a 
 distance equal to that from the old to the new 
 station only, " is applicable in principle to 
 the mileage of an Army officer placed on the 
 retired list and ordered to his home, M'here he 
 selects a home abroad. (18 Comp. Dec. , 634.) 
 
 When an officer is retired and ordered to 
 proceed to his home, if the order is not obeyed 
 within a reasonable time it loses its character 
 as an order to travel on public business, and if 
 the travel is subsequently performed, it is 
 at the officer's pl,teasure and convenience, and 
 hot under orders within the meaning of the 
 statute allowing mileage. (13 Comp. Dec, 
 112.) 
 
 As to status of retired officer residing abroad, 
 with reference to acts by him amounting to 
 expatriation or abandonment of his office in the 
 U. S. Navy, see note to section 1428, Revised 
 Statutes. 
 
 A retired officer who resides at a place where 
 it is inconvenient or impossible for him to 
 receive his pay in person must, in the discre- 
 tion of the disbursing officer on whose roll he is 
 carried, furnish evidence of his right to receive 
 his pay in accordance with Art. 1338, Navy 
 Regulations, 1909 [Art. R-4385, Navy Regs., 
 1913]. (File 27231-26.) 
 
 Retired officer cannot be appointed to 
 office limited to active list.^The permanent 
 designation of the superintendent of the State, 
 War, and Navy Building is an imjjerative 
 order to continuous duty, and this is quite 
 incompatible with the selection of a retired 
 officer, who ia generally exempt from such 
 orders. It cannot be held that the act author- 
 ized an appointment, which is an order from 
 which such officers were exempt. It is easy 
 to see here that the fact that the duties imposed 
 upon this superintendent require for their 
 performance an officer fully qualified for active 
 duty is a sufficient reason why this appointment 
 was requiied to be made from the active list, 
 and not from those who have already passed 
 the period of their full usefulness and have on 
 that account been retired from active service. 
 (25 Op. Atty. Gen., 508.) 
 
 For other cases, see notes to sections 421, 
 1225 and 1462, Revised Statutes. 
 
 Retired officer holding position as Con- 
 gressman. — The question whether a Con- 
 gressman can receive pay as a retired Army 
 officer is one of grave doubt, which only a 
 determination of the Supreme Court can 
 satisfactorily settle. (20 Op. Atty. Gen., 686; 
 see also file 27231-74, May 12, 1916.) 
 
 Veto of bill to make retired officers of 
 Army not amenable to court-martial. — 
 "The original act establishing the retired list 
 of the Army (act of Aug. 3, 1861), referred to 
 the personnel therein included as only partially 
 retired, and provided that a retired officer 
 should be entitled to wear the uniform of hia 
 grade, should be borne on the Army Register, 
 and should be subject to the rules and Articles 
 of War, and to trial by general court-martial for 
 any breach of these articles. By the act of 
 July 24, 1876, officers of the Army on the retired 
 list were specifically declared to constitute a 
 part of the Regular Army, a provision which 
 is found repeated in subsequent acts affecting 
 the organization of the Army; and other stat- 
 
 643 
 
Sec. 1457. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 utcs enacted during this period jnade retired 
 officers of the Army available for certain classes 
 of active duty, in time of peace with their con- 
 sent, and in time of war A^'ithout their consent. 
 By the recently enacted National Defense Act, 
 the authority of the President over retired offi- 
 cers has been further extended, so as to make 
 thera 8ul)jcct to his call in time of war for any 
 kind of duty witliout any restriction whatever. 
 Courts and Attorneys-General have, in a long 
 line of decisions, lield that officers of the Army 
 on the retired list hold public office. It thus 
 appears that both the legislative and judicial 
 branches have drawn a sharp distinction in 
 status between retired officers, who are regarded 
 and governed at all times as an effective reserve 
 of skilled and experienced officers and a poten- 
 tial soui'ce of military strength, and mere pen- 
 sioners, from whom no further military service 
 is expected. Officers on the retired list of the 
 Army are officers of the Army, members of the 
 Military Establisliment distinguished by their 
 long 8er\'ice, and, as such, examples of dis- 
 cipline to the officers and men in active service. 
 Moreover, they wear the uniform of the Army, 
 their education and ser\dce hold them out as 
 persons especially qualified in military matters 
 to represent the spirit of the Military Estab- 
 lishment, and they are subject to active duty 
 in time of national emergency by the mere 
 order of the Commander-in-Chief. They are, 
 therefore, members of the Army, officers of the 
 United States, exemplars of discipline, and 
 have in their keeping the good name and the 
 good spirits of the entire Military Establishment 
 before the world. Occupjing such a relation, 
 their subjection to the rules and Articles of 
 War and to trial by general court-martial have 
 alwa\s been regarded as necessary, in order 
 that the retired list might not become a source 
 of tendencies which would weaken the dis- 
 cipline of the active land forces and impair 
 that control over those forces which the Con- 
 stitution vests in the President. 
 
 '■ The purpose of the Articles of War in times 
 of peace is to bring about a uniformity in the 
 application of military discipline which will 
 make the entire organization coherent and 
 effective, and to engender a spirit of coopera- 
 tion and proper subordination to authority 
 which vrill in time of war instantly make the 
 entii-e Army a unit in its purpose of self-sacrifice 
 and devotion to duty in the national defense. 
 These purposes can not be accomplished if the 
 retired officers, still a part of the Military Estab- 
 lishment, still relied upon to perform important 
 duties, are excluded, upon retirement, from 
 the wholesome and unif>dng effect of this sub- 
 jection to a common discipline. I am per- 
 suaded that officers upon the retired list would 
 themselves regard as an invddious and unpal- 
 atable discrimination which in effect excluded 
 thera from full membership in the profession 
 to which they have devoted their lives, and 
 in which by the laws of their country they are 
 still members. So long as Congress sees fit to 
 make the retired personnel a part of the Army 
 of the United States, the constitutionality of 
 the proposed exemption of such personnel from 
 all liability under the Articles of War is a 
 matter of serious doubt, lea\-ing the President, 
 as it does, %vithout any means sanctioned by 
 
 statute of exercising over the personnel thus 
 exempted the power of command vested in him 
 by the Constitution. 
 
 "Convinced, as I am, of the un^\'is(lom of 
 this provision and of its baneful effect upon the 
 discipline of the Army; doubting, as I do, the 
 power of Congress wholly to exempt retired 
 officers from the control of the President, wliile 
 declaring them to ])e a part of the Regular Army 
 of the United States, I am constrained to return 
 this bill without my approval." (Veto mes- 
 sage of President Wilson, Aug. 18, lOlG, 53 
 Cong. Rec, 14950.) 
 
 "Navy Register," history and definition 
 of, etc. — "An exhaustive research has failed 
 to disclose any statute requiring the publication 
 by the Secretary of the Navy of a Na\y reg- 
 ister. Many references are found in the laws 
 to the 'Navy register,' or to the 'official Navy 
 register,' or 'official register of the Navy,' etc. 
 Thus the act of June 29, 1906 (34 Stat., 554), 
 provides for the advancement in rank and pay 
 of officers who served during the civil war. 
 One of the conditions of such advancement, 
 as stated in this act, is that the officer's name 
 must be 'borne on the official register of the 
 Na\'y.' The act was nevertheless held to apply 
 to mates, whose names are not included in the 
 published Navy Register, as that publication 
 includes only 'commissioned and warrant 
 officers of the United States Navy^ and ]\Iarine 
 Corps,' and mates do not come within these 
 designations. In connection with the cases 
 of mates, it was decided that the 'official reg- 
 ister of the Navy' was the official record or 
 register of officers of the Navy kept in the 
 Bureau of Navigation, and not the published 
 register. This seems to be the obvious con- 
 struction of the expressions referring to the 
 Navy register which are found in the various 
 acts of Congress, and laws requiring the Secre- 
 tary of the Na\y to enter certain officers' 
 names on the Navy register, or to omit certain 
 other names from the Na\-y register, are not, 
 therefore, construed as requiring the pubJicn- 
 tion of such a register." (File 27231-8, Feb. 
 7, 1911.) 
 
 "An examination of the records discloses 
 that lists of officers of the Navy, mth certain 
 information pertaining thereto, were sent to 
 the respective houses of Congress at various 
 times in pursuance of resolutions, one of which 
 was House of Representatives resolution of 
 January 23, 1812 (Annals of Congress, 12th 
 Cong. 1st sess. pt. 1, p. 929), which read 
 as follows: 'Resolved, That the Secretary 
 of the Na\y be directed to lay before this 
 House a statement of the names, rank, pay, 
 and rations of the commissioned officers and 
 midshipmen belonging to the Navy of the 
 United States.'/' (File 27231-8, Feb. 7, 1911.) 
 
 "Reference is next found to a resolution of 
 the House, dated March 3, 1813, reading as 
 follows: 'Resolved, That the Secretary of the 
 Navy be, and he is hereby, directed to report 
 to this House at the next session of Congress 
 astatementof the number of * * * officers 
 in the naval service of the United States, their 
 rank, pav, and employ.' " (File 27231-8, Feb. 
 7, 1911. )" 
 
 [ ■ ' There appears to have been a Senate reso- 
 lution, dated August 2, 1813, on this subject. 
 
 644 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1457. 
 
 but I have been unable to locate a copy 
 thereof." (Memo, of J. A. G., Feb. 7, 1911, file 
 27231-8).] 
 
 "Next in order is Senate resolution of 
 December 13, 1815, as follows: 'Resolved, That 
 the Secretary of War and the Secretary of the 
 Navy be requested to furnish annually, on the 
 first of January, each Member of the Senate 
 with a copy of the Register of the Officers of 
 the Army and Navy of the United States." — 
 Annals of Congress, 14th Congress, 1st session, 
 1815-16, pages 21, 22." (File 27231-8, Feb. 
 7, 1911.) 
 
 ' ' Following this resolution [last above quoted] 
 the Na\y Register appears to have been printed 
 annually, 'by order of the Secretary of the 
 Navy,' and, as late as 1860, it was stated on 
 the title page of the Register 'Printed by order 
 of the Secretary of the Navy, in compliance 
 with a resolution of the Senate of the United 
 States of December 13, 1815.' " (File 27231-8, 
 Feb. 7, 1911.) 
 
 "The duty of printing the Navy Register 
 and furnishing one copy to each Member of 
 the Senate is not now required of the Secre- 
 tary of the Na\'y, as, by act of January 12, 
 1895, entitled 'An act pro\T.ding for the public 
 printing and binding and the distribution of 
 public documents (28 Stat., 601), provision is 
 made for the printing and distribution of the 
 Navy Register as a public document by the 
 'Joint Committee on Printing.' Section 1 
 of the act cited reads as follows: 'That there 
 shall be a joint committee on printing, con- 
 sisting of three Members of the Senate and 
 three Members of the House of Representatives, 
 who shall have the powers hereinafter stated.' 
 Section 54 of this act provides: 'WTienever any 
 document or report shall be ordered printed 
 by Congress, such order to print shall signify 
 the "usual number" of copies for binding and 
 distribution among those entitled to receive 
 them. No greater number shall be printed 
 unless ordered by either House, or as herein- 
 after provided. ^Tien a special number of a 
 document or report is ordered pi'inted, the 
 usual number shall also be printed, imless 
 already ordered. The usual number of docu- 
 ments and reports shall be one thousand six 
 hundred and eighty-two copies, which shall 
 be distributed as follows: * * *.' And 
 section 73: 'Extra copies of documents and 
 reports shall be printed promptly when the 
 same shall be ready for publication, and shall 
 be bound in paper or cloth as directed by the 
 Joint Committee on Printing, and shall be of 
 the number following in addition to the usual 
 number: * * * Of the Registers of the 
 Army and Navy, fifteen hundred copies of 
 each; five hundred for the Senate and one 
 thousand for the House.' " (File 27231-8, Feb. 
 7, 1911.) 
 
 "It does not appear from any of the fore- 
 going that the secretary has ever been required 
 by law to 'publish' an annual Navy Register. 
 At one time he was requested by the Senate 
 to furnish each of its members, annually, with a 
 copy of the 'Register of the Officers of the 
 * * * Na\'y of the United States,' in com- 
 pliance with which request the Navy Register 
 was printed annually and the necessary number 
 furnished to the Senate. Now, however, it is 
 
 no longer required of the Secretary of the Navy 
 to print any copies whatever of the Navy 
 Register, as the printing thereof comes under 
 the Joint Committee on Printing and the Public 
 Printer. The most that is required of the Secre- 
 tary of the Navy is to furnish Congress with a 
 list of the officers of the Navy and I^Iarine Corps, 
 after which the matter passes out of the Secre- 
 tary's hands and the printing is done under the 
 direction of Consjress through its joint commit- 
 tee." (File 27231-8, Feb. 7, 1911.) 
 
 The "Oflicial Register of the United States" 
 is published by the Director of the Census in 
 pursuance of the act of June 7, 1906 (31 Stat., 
 219). and contains a list of "persons in the civil, 
 military, and naval service of the United 
 States, and list of vessels. ' ' The Director of the 
 Census is the only oflicial expressly required by 
 law to publish an official register of persons in 
 the naval service. (File ^27231-8, Feb. 7, 
 1911.) 
 
 The judiciary will not, by mandamus, com- 
 pel the Secretary of War to change the position 
 of an officer's name in the Army Register, even 
 though it be conceded that an error exists 
 therein. (Edwards v. Root, 24 App. D. C, 
 419, 431; as to the Navy, see file 27231-8, Feb. 
 7, 1911, and Moser r. ]\leyer, 38 App. D. C, 13). 
 
 "The mere designation of lineal or relative 
 rank in the Official Army Register does not fix 
 and determine his rank in the Army and his 
 right to promotion. That right depends upon 
 other conditions. It is true the Official Army 
 Register, is an official record of the War De- 
 partment, that furnishes evidence of the rank 
 and status of officers in the various grades and 
 classes of the officers in the Army organization ; 
 but it does not per se establish and determine 
 any right to particular rank, much less to promo- 
 tion. This latter rank depends upon quite 
 different conditions, and apart from the evi- 
 dence furnished by the Official Army Register. 
 Promotion in a certain sense is a new appoint- 
 ment, and, to the position of captain, can only 
 be effected by the nomination of the President, 
 with the advice and consent of the Senate. 
 The mere entry, therefore, in the Official Army 
 Register of the name and rank of the appellant 
 would not operate to entitle him to or to con- 
 trol such promotion. That must rest primarily 
 in the judsiment and' discretion of the Presi- 
 dent." (Edwards v. Root, 24 App. D. C, 419, 
 431; see file 27231-8, Feb. 7, 1911.) 
 
 In the published Navy Register "various 
 methods are adopted to indicate the rank of 
 oflicers whose rank is higher than that belong- 
 ing to their grade. Thus, in the case of officers 
 on active duty, serving as chiefs of bureau and 
 as Judge Advocate General, the higher rank 
 held by them under their commissions as such 
 chiefs of bureau or Judge Advocate General ia 
 indicated merely by a footnote, the names of 
 such officers being placed in their regular places 
 in their respective grades. Thus * * * an 
 officer of the Navy on the active list, whose 
 actual grade is that of captain, but who has 
 the rank of rear-admiral while serving as ( 'hief 
 of the Bureau of Navigation, is placed in his 
 regular position in the grade of captain in the 
 Navy Register, and not placed in the grade of 
 rear-admiral, an appropriate footnote being 
 made to indicate his higher rank. In the case 
 
 645 
 
Sec. 1458. 
 
 Pt.S. RE VISED STAT UTES . 
 
 The Navy. 
 
 of a large number of retired officers, whose grade 
 on the active list was that of cai)tain, but who 
 were given the rank of rear-admiral on the 
 retired list bv reason of ci\dl-war serAdce their 
 names are collected under the heading 'Rear- 
 Admirals,' and the fact that they enjoy a higher 
 rank than that belonging to their grade on the 
 active list is indicated by a letter of the alpha- 
 bet in a column under the heading ' Law govern- 
 ing retirement.' On the other hand, there are 
 a number of officers whose actual grade is that 
 of mate, but who have the rank of warrant 
 oflicer on the retired list because of ci\dl-war 
 service. Their names will be found on page 
 158 of the Register for 1910, under the heading 
 of ' Mates' and not ' Warrant Oliicers. ' In their 
 cases, however, there is a subheading reading 
 ' Rank of Warrant Officer. ' This latter method 
 is followed in the case of the various staff officers 
 who received the rank of a higher grade on retire- 
 ment, as, for example, in the case of ^ledical 
 Director Francis M. Gunnell, whose name is 
 printed under the heading of 'Medical Direc- 
 tors' with a subheading, 'Rank of Rear Ad- 
 miral,' and not under the heading of Rear- 
 Admirals. In the cases of mates and certain 
 staff officers, it was specifically held by the 
 Attorney General in several published opinions 
 that these officers did not obtain an advance in 
 grade by \-irtue of their ci\dl-war service, but 
 retained their old gi-ade with the addition of a 
 higher rank. This, however, w^as merely the 
 application to certain specific cases of general 
 principles already well understood." (File 
 27231-8, Feb. 7, 1911.) 
 
 Formerly the register of officers of the Navy, 
 kept in the Na^^ Department, was kept in 
 bound record books, and after the name of an 
 officer was once entered in the book, its posi- 
 tion was not changed , but changes in his rank 
 were indicated by notation on the page where 
 his name appeared. It follows that there was 
 no list of rear admirals, or list of captains, kept 
 in the department, nor list of retired officers, 
 as, even after retirement, the officer's name and 
 
 record was kept in the same position. Refer- 
 ences in acts of Congi'ess which would indicate 
 that the names of officers were kept by rank, 
 and retired officers placed in a separate list, 
 may be explained on the ground that Congress 
 was not informed as to the method in which 
 the ofticial register was kept in the Navy De- 
 partment. Now, the register of officers is kept 
 by the card-index system, the positions of the 
 cards being changed upon corresponding 
 changes in the officer's rank. Under this 
 arrangement, the names of retu'ed oftlcers are 
 kept in a separate place, but the cards in their 
 cases are arranged al])habetically, instead of by 
 rank as in the case of officers on the active list. 
 (File 27231-8:8, Mar. 9, 1911.) 
 
 The Secretary of the Navy is not reqvured to 
 publish a Navy Register at all. For a num])er 
 of years prior to and including the year 1907, 
 such a register was published semiannually 
 by the Navy Department, on the first day of 
 January and July, respectively. In the July 
 register, the names of retii'ed officers were 
 omitted altogether, with the exception of such 
 retired oilicers as were employed on active 
 duty. Beginning with 1908 the publication of 
 a register in July has been omitted. The pub- 
 lication of a register in January could also be 
 omitted, should the Secretary of the Navy so 
 decide. There is also a Navy Register or di- 
 rectory" published monthly by the Navy 
 Department, and in this register the names of 
 aU officers are alphabetically arranged, whether 
 on the active or retired list. The names of 
 officers could be so arranged also in the annual 
 register, should the Secretary of the Navy so 
 decide, as there is nothing in the law which 
 requires him to publish any officer's name in 
 any particular list. (File 27231-8:8, "Notes 
 upon argument of Mr. George A. King, for peti- 
 tioner. Mar. 10, 1911," in case of United States 
 of America ex rel. Jefferson F. Moser v. George 
 von L. Meyer, Secretary of the Navy. At Law, 
 No. 53302, Supreme Court of the District of 
 Columbia. ) 
 
 Sec. 1458. [Vacancies filled by promotion according to seniority.] The next 
 officer in rank shall be promoted to the place of a retired officer, according to 
 the established rules of the service; and the same ride of promotion shall be 
 appUed successively to the vacancies consequent upon the retirement of an 
 officer.— (3 Aug., 1861, c. 42, s. 22, v. 12, p. 291. 21 Dec, 1862 [should be 
 "1861"], c. 1, s. 6, V. 12, p. 330.) 
 
 Amendment to this section was made by act of 
 August 29, 1916 (39 Stat., 578), which pro- 
 vided that all promotions to the grades of 
 rear admiral, captain, and commander, in 
 the line of the Navy, should be made by 
 selection only, from the next lower re- 
 spective grade. By act of July 1, 1918 (40 
 Stat, 718), advancement by selection to the 
 ranks of rear admiral, captain, and com- 
 mander was extended to the Staff Corps 
 of the Navy. 
 
 Pay of officers on promotion, see section 1561, 
 Revised Statutes, and act of March 4, 1913 
 (37 Stat., 892). 
 
 Promotion by seniority in the Army was pro- 
 vided for by section 1257, Revised Stat- 
 
 utes, and act of October 1, 1890, section 3 
 (26 Stat., 562). 
 
 Promotion by seniority in certain Staff Corps 
 of the Navy was specifically provided for 
 by section 1480, Re\'ised Statutes, as 
 amended by act of February 27, 1877 (19 
 Stat., 244). Advancement by selection to 
 certain ranks in the Staff Corps of the 
 Navy was authorized by act of July 1, 
 1918 (40 Stat., 718). Advancement of 
 staff officers to the ranks below com- 
 mander is regulated by act of Aug. 29, 
 1916 (39 Stat., 576). 
 
 Promotions not to be made to fill vacancies 
 occasioned by retirement of officers who 
 are additional numbers in grade. (Sec. 
 1510, R. S.) 
 
 646 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1458. 
 
 Historical note. — By act of February 28, 
 1855 (10 Stat., 616), it was providecr that 
 "vacancies created in the active-service List 
 by placing officers on the reserved list shall be 
 filled by regular promotion in the order of rank 
 or seniority." 
 
 Act of February 21, 1861, sections (12 Stat., 
 150), pro\dded for retirement of medical officers, 
 and section 4 pro\'ided ' ' that all vacancies in the 
 Medical Corps of the Na\'y caused by the fore- 
 going section shall be filled in accordance with 
 established usage." 
 
 Act of August 3, 1861, section 22 (12 Stat., 
 291): "The next officer in rank shall be promoted 
 to the place of the retired officer according to 
 the established rules of the serAice. And the 
 same rule of promotion shall be applied suc- 
 cessively to the vacancies consequent upon 
 the retirement of an officer." 
 
 Act of December 21, 1861, section 6 (12 Stat., 
 330 1: "That promotions shall be made in place 
 of the officers retired under the provisions of 
 this bill as is now pro\dded by law." 
 
 Promotion by seniority in the Navy was not 
 originally established by Congress, but was 
 adopted as a rule by the executive, and sub- 
 sequent acts of Congi'ess were enacted with 
 reference to the rule already existing. This 
 is shown by section 1458, Re\ised Statutes, 
 which in purporting to provide for promotions 
 by seniority, makes reference in that connec- 
 tion to "the established rules of the service." 
 (File 28687^:1, Sept. 12, 1916; C. M. O. 3- 
 1917, p. 8; Op Atty. Gen., Dec. 27, 1916, file 
 28687-4:8.) 
 
 Constitutionality of legislation requir- 
 ing promotions by seniority. — See note to 
 section 1480, Revised Statutes; and see cases 
 noted under the Constitution, Article II, section 
 2, clause 2, "III. Power of Congress," and 
 "IV. Statutory requirements and qualifica- 
 tions;" see also note to section 1372, Revised 
 Statutes, " Promotion by seniority and not com- 
 petitive examination." 
 
 The law requiring promotions in the Army 
 to be made by seniority does not make it 
 obligatory upon the President to promote to a 
 vacancy existing in the grade of lieutenant 
 colonel the senior officer in the next lower 
 grade, if in his opinion the record of the officer 
 has been such as to indicate that he is dis- 
 qualified for promotion, but under the law he 
 can not be eliminated either through the 
 agency of a retiring board or a court-martial. 
 (30 Op. Atty. Gen., 177.) 
 
 Congress has undoubtedly confined the Presi- 
 dent's discretion in the matter of promotions in 
 the Army, to the extent at least of designating 
 the class from which the appointment for pro- 
 motion must be made. It has even been 
 argued that the power both of appointment and 
 promotion in the army is solely in Congress, 
 under its power " to declare war, " "to raise and 
 support armies," and "to make rules for the 
 government and regulation of the land and 
 naval forces," being withdrawn from the 
 President's jurisdiction by the words, "whose 
 appointments are not herein otherwise provided 
 for, "in Article II, section 2, of the Constitution. 
 If this view be correct, it might be claimed 
 with some force that the effect of the Army 
 Regulations and acts of Congress on the sub- 
 
 ject of promotion is to give the senior officer a 
 vested right to promotion at the moment a 
 vacancy occurs, and to make confirmation 
 by the Senate and appointment by the Presi- 
 dent unnecessary, or at most merely formal and 
 evidential acts (citing 10 Op. Atty. Gen., 144; 
 22 Op. Atty. Gen., 480). However, the correct- 
 ness of this view can not be admitted. Promo- 
 tion in the Army is in the last analysis merely 
 an appointment to a higher office therein; and 
 this fact is illustrated and confirmed by the 
 long-estabhshed practice of submitting nomina- 
 tions for promotion in the Army to the Senate 
 for confirmation and of thereafter issuing a com- 
 mission for the higher office. Promotion, there- 
 fore, having regard to its real nature, is as much 
 or as little within the President's constitutional 
 power of appointment as an original appoint- 
 ment, and is subject, in so far as that matter is 
 concerned, to the same considerations. Now, 
 appointment in the Army, as in any other de- 
 partment of the Government, is an executive 
 and not a legislative act; and the provisions of 
 the Constitution are satisfied by giving Congress 
 the power to make the general rules, prescribing 
 the organization and government of the Army, 
 leaving to the President, with the advice and 
 consent of the Senate, the designation of the 
 particular individuals who are to fill the offices 
 created by Congress therein. Congress may 
 point out the general class of individuals from 
 which an appointment must be made, if made 
 at all, but it can not control the President's 
 discretion to the extent of compelling him to 
 commission a designated individual (citing 
 President Harrison's veto, Feb. 26, 1891, 
 Messages of the Presidents, vol. 9, p. 138; 
 Attorney General Brewster's opinion m Fitz 
 John Porter's Case, 18 Op. Atty. Gen.,_ 18). 
 Mandamus would not lie against the President 
 in such a case . The matter is really concluded , 
 in so far as the Department of Justice is con- 
 cerned, by Attorney General Moody's opinion 
 in 25 Op. Atty. Gen., 591 [noted below], rely- 
 ing on 13 Op. Atty. Gen. , 13. It follows, there- 
 fore, that while promotion is a " right ' ' inhering 
 in the officer next in line of promotion, and 
 practically almost certain to vest in him, it is 
 yet inchoate in its nature and its legal vesting 
 is subject to the fundamental condition of an 
 appointment by the President. (29 Op. Atty. 
 Gen., 254, holding that a commission cannot 
 be issued in the name of an officer whose death 
 occurred after he was nominated by the Presi- 
 dent but prior to his confirmation by the Sen- 
 ate; compare 12 Op. Atty. Gen., 229, noted 
 under Constitution, Art. II, sec. 2, clause 2, 
 "VI. What constitiites appointment," hold- 
 ing that where an officer died before accepting 
 a commission, acceptance is conclusively pre- 
 sumed.) 
 
 The authorities upon this question establish 
 the following: First, that Congress has not 
 the power to designate an appointee by name 
 (citing 18 Op. Atty. Gen., 18; U. S. v. Ferreira, 
 13 How., 40); second, that Congress has not the 
 power to require the appointment of an indi- 
 vidual who stands highest upon a competitive 
 examination (citing 13 Op. Atty. Gen., 516); 
 third, that Congress can not require the Presi- 
 dent to appoint to a vacancy m the military 
 service the senior officer in the next lower 
 
 647 
 
Sec. 1458. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 grade (citing 30 Op. Atty. Gen., 177). The 
 above pr()]x»itions all rest upon the underly- 
 ing principle that "the power of appointment 
 of odicers, the duty to appoint whom devolves 
 directly on the President and Senate by vir- 
 tue of "the Constitution itself, is one involving 
 a di-<-retion not entiiely to he controlled by 
 Congress. This power is from a source above 
 Congress, namely, the Constitution, and can 
 not be destroyed hy the inferior power" (cit- 
 ing 30 Op. Atty. Gen., 177). The foregoing 
 authorities, therefore, if they do not clearly 
 define the respective powers of Congress and 
 the President, at least leave no doubt that 
 Congress has not the power to require the ap- 
 
 f)ointment of a particular individual, either 
 )y name or description. This, of course, 
 applies equally to promotions, for a promotion 
 is "an appointment to a higher office" (citing 
 30 Op. Atty. Gen., 177). (File 28687-4:4, 
 Sept. 12, 1916; C. M. 0. 3, 1917, p. 7.) 
 
 \\Tiere Congress does not merely limit the 
 President's power of selection to a class of offi- 
 cers, but proceeds to the very point of requir- 
 ing that a particular individual be appointed 
 to fill a vacancy existing in a higher grade, 
 idz, "the next officer in rank," there is hardly 
 room for doubt that such legislation is neces- 
 sarily an attempted infringement upon the 
 constitutional power of the President, and 
 therefore can not be binding upon him. (File 
 28687-4:4, Sept. 12, 1916; C. M. 0. 3, 1917, 
 p. 8. See also to same effect, Op. A-tty. Gen., 
 Dec. 27, 1916, noted under sec. 1480, R. S.) 
 
 Compare 17 Op. Atty. Gen., 36, noted under 
 section 1461, Re\ised Statutes, with reference 
 to the promotion of retired officers as their 
 several dates upon the active list were pro- 
 moted, and compare cases noted under section 
 1372, Revised Statutes. 
 
 Whether officer has vested right to 
 promotion upon occurrence of vacancy. — 
 The right to promotion inhering in one who is a 
 commissioned officer is, under existing legisla- 
 tion, in the nature of a vested right, subject 
 nevertheless to being defeated in accordance 
 with the provisions of the laws. (20 Op. Atty. 
 Gen., 433.) 
 
 By the law and usage of the service a line 
 officer of the Navy has as good a right to pro- 
 motion, if found qualified for it, and to his 
 proper rank in the grade to which he belongs, as 
 he has to his pay, and questions involving the 
 right to rank or promotion are always important 
 because of the bearing they have on the effi- 
 ciency of the service. (18 Op. Atty. Gen., 
 393.) 
 
 _ Where it was required by statute that promo- 
 tions to certain offices in the Army be made 
 by seniority, the senior officer was of right 
 entitled to be promoted to a vacancy occurring 
 in the next higher grade on the date that such 
 vacancy occurred. But his right can not be 
 held to have vested and become complete until 
 his actual appointment. The law did not 
 operate of itself to make him a lieutenant- 
 colonel on the date he became entitled to the 
 advancement; it was necessary that there 
 should be an exercise of the appointing power 
 to confer the office upon him, and until his 
 commission was signed by the President the 
 office did not vest. A similar view has al- 
 
 ways been taken by the Attornevs-General. 
 In 13 Op. Atty. Gen., 13, it was held, respect- 
 ing certain acts and Army regulations requiring 
 vacancies in established regiments and corps 
 to the rank of colonel to be filled by promotion 
 according to seniority, that the laws and regula- 
 tions prescribed only the mode in which vacan- 
 cies should be filled; "they do not confer upon 
 the officer next in the order of succession any 
 right to the vacant place. This he can acquire 
 only by virtue of a new commission." And 
 in 13 Op. Atty. Gen., 44, it was held that the 
 right to an office in the Army is not a vested 
 one until the commission is signed by the 
 President. (25 Op. Atty. Gen., 591.^ 
 
 For other cases, see 29 Op. Atty. Gen., 254, 
 noted above, under "Constitutionality of legis- 
 lation requiring promotions by seniority;" and 
 17 Op. Atty. Gen., 36, noted under section 1461, 
 Revised Statutes. 
 
 Promotions required to be made from 
 next lower grade. — The practice and usage 
 of the Navy, prescril:)ed and sanctioned by 
 law, require that in the grades of the ser\-ice, 
 except in cases otherwise especially provided, 
 promotions be made from the lower to the next 
 higher rank or grade. (26 Op. Atty. Gen,, 
 496.) 
 
 The higher grades on the active list were to 
 be constantly supplied by streams of promotion 
 from Ijelow, the fountain being at the lowest 
 grade of all and supplied fi-om without. (Thomp- 
 son 1'. U S., 18 Ct. Cls., 604, 612, noted more 
 fully under sec. 1457 R. S., "Restoration of 
 retired officer to active list.") 
 _ By act of August 29, 1916(39 Stat., 578), promo- 
 tions to the grades of rear admiral, captain, and 
 commander, in the Line of the Navy, were re- 
 quired to be made by selection from the next 
 lower respective grade. (Similarly as to ad- 
 vancement of staff officers to the same ranis: 
 Act July 1, 1918, 40 Stat., 718.) 
 
 Filling vacancy by transfer from another 
 office of equal grade. — Where there are two 
 or more offices of the same grade in a corps, 
 each requiring a separate commission, on a 
 vacancy occurring in one of them an incumljent 
 of the other may be transferred by appointment 
 to said vacancy, without prejudicing the rights 
 of the senior in next grade below, whose claim 
 to promotion would be fully met by appoint- 
 ing him to either. (17 Op. Atty. Gen., 465.) 
 
 "Vacancy" defined. — The word "vacancy " 
 means a legal \'acancy, that is, one to which a 
 person coiild be appointed under existing law, 
 and not a numerical vacancy, that is, an 
 official position which is vacant I)ut which 
 could not be filled at the time, under existing 
 laws and regulations. (23 Op. Attv. Gen., 331, 
 construing act Feb. 24, 1897, 29 Stat.. 593, re- 
 lating to the constructive muster of volunteer 
 officers into the Army.) 
 
 When law is changed, whether existing 
 vacancies should be filled according to the 
 old law. — In accordance ^^'ith the practice 
 under which an "officer is promoted in due 
 course to fill a vacancy," it is clear that for a 
 period of eighteen days the officers referred to 
 were entitled by law to promotion, without 
 examination under the act of October 1, 1890 
 (26 Stat., 562), made applicable to the Marine 
 Corps by act of July 28, 1892 (27 Stat., 321). No 
 
 648 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1458. 
 
 suggestion is made that the failure to promote 
 the three officers in question occurred from any 
 act or omission of their own. The act of 1892 
 speaks only from July 28, and creates new con- 
 ditions as to promotions thereafter to be made 
 in the Marine Corps. It would be going very 
 far to say that Congress intended that a right of 
 promotion earned by long sev\dce and actually 
 accrued may, by force of this enactment be 
 taken away from the officer who has performed 
 the service. The executive construction of 
 the act of 1890 is of much weight. Vacancies 
 then existing in the Army were tilled under the 
 law as it existed prior to October 1, without the 
 examination prescril^ed by that act. This was 
 a practical executive construction. "In a 
 case of ambiguity, the contemporaneous con- 
 struction, not only of the courts but of the de- 
 partments, and even of the officials whose 
 duty it is to carry the law into effect, is uni- 
 versally held to be controlling," (citing Schell's 
 Ex. v.Fauche, 138 U. S., 572). Although the 
 practice under the act of 1890 had not had suf- 
 ficient time to ripen into the principle quoted, 
 it should clearly appear that the executive 
 action stated was contrary to law, to justify the 
 overruling of this departmental decision. It 
 must be understood that the legislation of 1892 
 was made by Congress with a full knowledge of 
 the executive construction which had been 
 pre^dously made upon the act of 1890, and the 
 inference is a necessaiy one that if this construc- 
 tion had not been in accordance with the intent 
 of Congress, the act of 1892 would have con- 
 tained a provision requiring a different execu- 
 tive rule. A construction which requires the 
 three officers specified to be examined under 
 the provisions of the act of July 28, 1892, will 
 disregard rights which ought to be treated as 
 vested rights of the officers affected, and will 
 run counter to the established determination 
 of the War Department, and will reverse a 
 decision which has been practically acquiesced 
 in by Congi-ess. (20 Op. Atty. Gen., 433.) 
 
 The act of August 29, 191G (39_Stat., 578), 
 provided that thereafter promotions to the 
 upper grades in the line of the Navy should be 
 by selection only. Examinations and promo- 
 tions by seniority under prior laws, which 
 were not consummated prior to the act of 
 August 29, 1916, were of no legal effect in view 
 of the change in the law. (File 26260-3663:2. 
 Oct. 9, 1916; file 26260-3648:3, Sept 22, 1916; 
 file 26260-3630, Jan. 18, 1917.) 
 
 The act of May 22, 1917, section 20 (40 Stat., 
 89), which provided that examinations for 
 staff oflicers should not be required except for 
 advancements in rank, operates on and after 
 May 22, 1917, to exclude statutory examina- 
 tions for promotions to higher grades in the 
 Staff Corps, such as were theretofore required by 
 law. (File 26521-203, July 31, 1917, citing 
 and following file 26260-3663:2, Oct. 9, 1916, 
 noted above.) 
 
 Officers of the Medical Corps, due for promo- 
 tion to higher grades from August 29, 1916, 
 and January 10, 1917, but who had not been 
 examined 'or such promotions prior to May 22, 
 1917, could not after the last-named date be re- 
 quired to take the statutory examinations for 
 promotion in grade in accordance with laws in 
 
 effect prior to May 22, 1917. (File 26521-203, 
 July 31, 1917.) 
 
 A medical officer due for promotion to tht 
 gi'ade of surgeon from August 29, 1916, ex- 
 amined therefor on March 12, 1917, and found 
 not professionally qualified, could not be re- 
 quired, after May 22, 1917, to undergo a further 
 statutory examination for promotion in grade 
 in accordance with prior laws, although the 
 penalty consequent upon his professional 
 failure, namely, loss of numbers equal to the 
 aA'erage six months' rate of promotion to the 
 grade for which said officer was examined, 
 must be considered as having been attached 
 under laws then in effect, and as not being dis- 
 turbed by the subsequent change in the 'laws 
 relating to promotion in grade made by the act 
 of May 22, 1917. (File 26521-203, July 31, 1917.) 
 
 A medical officer due for promotion in grade 
 from August 29, 1916, examined May 8, 1917, 
 and found not qualified professionally, which 
 finding, however, had not been approved on 
 May 22, 1917, could not thereafter be required 
 to undergo further statutory examination for 
 promotion in grade, nor did any penalty attach 
 in his case in consequence of the proceedings 
 already had, owing to the fact that such pro- 
 ceedings were not completed by the President's 
 approval, which is necessary to make the find- 
 ing legally effective. (File 26521-203, July 
 31, 1917, citing Jouett v. U. S., 28 Ct. Cls., 
 257.) 
 
 Date of vacancy created byre tiremento — 
 Vacancies caused by the retirement of officers 
 from active service do not begin to run until 
 the day following the date their retirement 
 becomes legally effective. (16 Comp. Dec, 
 682.) 
 
 A vacancy in an office does not arise until 
 the officer ha\dng the legal title to it ceases 
 legally to hold it.. (16 Cornp._ Dec. ,^682.) 
 
 Officers promoted by seniority, or receiving 
 original appomtments to fill vacancies caused 
 by retirement of officers of a higher grade, are 
 only entitled to the pay of the higher grade 
 from and including the day succeeding the 
 date the retirement of their predecessors 
 becomes legally effective. If officers receiving 
 original appointments in the Army accept the 
 same on a date later than the day succeeding 
 the date the retirement of their predecessors 
 becomes legally effective, they are entitled to 
 pay from the date of their acceptance onlv. 
 (16 Comp. Dec, 682.) 
 
 For other cases, see notes to sections 1444 and 
 1457, Revised Statutes. 
 
 Antedating rank on promotion. — By the 
 settled practice of the service promotion to a 
 higher grade includes the right to the rank of 
 that grade from the date of the vacancy filled 
 by the promotion. This practice has the 
 distinct recognition of Congress. Section 1562 
 of the Revised Statutes, and the act of June 22, 
 1874 (18 Stat., 19), not only recognize the 
 practice of making the rank to antedate the 
 time of appointment to wlrich the rank belongs, 
 but extend it so as to give pay from the time 
 rank begins. Before the legislation referred to, 
 several of the Attorneys General had decided 
 that it was competent for the appointing power 
 to give rank by relation in making promotions 
 
 649 
 
Sec. 1458. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 (citing 4 Op. Atty. Gen., 124; 8 Op. Atty. Gen., 
 237). (IS Op. Atty. Gen., 393.) 
 
 Under an munemorial custom, officers of the 
 Anny promoted by seniority are given rank 
 from the date of the vacancy which they are 
 promoted to fill, and altliough not specifically 
 authorized by statute, are allowed the pay of 
 the higher grade from that date. (7 Comp. 
 Dec, 506.) 
 
 The practice of antedating commissions for 
 purposes of rank is an old one, and has been 
 repeatedly recognized and sustained by the 
 Attorney General and the courts. The sum 
 total of the precedents is that the antedating 
 of commissions, both on original appointment 
 and on promotion, is an established custom of 
 which Congress must be aware; that so far as 
 concerns rank this practice has repeatedly been 
 sustained, and under some circumstances is 
 held proper even for purposes of pay. (File 
 26280-68, Apr. 12, 1916.) 
 
 In 1836 it was held by Justice Story, in U. S. 
 V. Vinton (2 Sumn., 299, 28 Fed. t^s., 382) that 
 the President and Senate had the right to ante- 
 date the brcA'et commission of an Army officer, 
 and that the date so stated in the commission 
 was binding upon the com-fs and entitled the 
 officer to back pay. In 1842 it was held by 
 Attorney General Legare (4 Op. Atty. Gen., 
 123) that the executive has the power to ante- 
 date the conmiissions of officers on promotion in 
 cases of delav. In 1847 Attorney General 
 Clifford (4 Op. Atty. Gen., 603, 608) recognized 
 that "usage has strengthened the practice of 
 antedating rank." In 1873 it was held by 
 Attorney General Williams (14 Op. Atty. Gen., 
 191) that "where a fictitious date in an officer's 
 commission would be attended with prejudice 
 to other oflicers in the same gi'ade, it must be 
 deemed improper to thus date the commission, 
 unless there is clear authority of law for so 
 doing;" but that, while "there is no more 
 authority under the statutes to antedate the 
 commission in the one case than there is in the 
 other," where no other officers are thereby 
 adversely affected, the antedating of com- 
 missions is practically "unimportant." (File 
 26280-68, Apr. 12, 1916.) 
 
 By law persons competent to contract with 
 reference to a given subject matter may give 
 their contract a retroactive operation, and 
 have its legal effect antecedent to the time when 
 the contract was actually made; and so the 
 President, for some piupose, may give to an 
 instrument which he issues an effect in law 
 prior to the date of its execution. Sections 
 1561 and 1562, Revised Statutes, provide for 
 certain cases wherein the pay of officers shall 
 commence from a date anterior to that of the 
 commission. The specification in those cases 
 implies the exclusion of all others. From the 
 practice of the executive of inserting an ante- 
 date in the numerous cases arising under those 
 sections for convenience to indicate when the 
 officer's pay is to commence or to be increased 
 by law, it is easy to see how it might be some- 
 times inserted for convenience for other pur- 
 poses, or even inadvertently in some cases 
 where it might have no practical application. 
 Where an officer was advanced in rank for emi- 
 nent and conspicuous conduct in battle, under 
 section 1506, Re\'ised Statutes, and the date 
 
 of his rank in his new commission was, for 
 convenience, fixed as a date between that of 
 the commission of the highest of the officers 
 whom he was thus made to outrank and that 
 of the lowest next above him, in order to indi- 
 cate his ])osition and rank with reference to the 
 other oflicers of his grade; this was not a case 
 in which he was entitled to pay from such ante- 
 cedent date under sections 1561 and 1562, 
 Revised Statutes. (Young v. U. S., 19 Ct. Cls. , 
 145.) 
 
 Officers of the Revenue-Cutter Servdce [now 
 Coast Guard] promoted by seniority in accord- 
 ance with the established rules and practice of 
 the ser\ice to fill certain additional offices 
 created by act of April 16, 1908, are entitled to 
 the pay of the higher grades to which promoted 
 from April 16, 1908, the date the offices were 
 created, which is the date the vacancies oc- 
 curred. (15 Comp. Dec, 157.) 
 
 That an appouitment to an office in the Army, 
 when validly made, may, in so far as concerns 
 rank and pay, relate back, either by force of a 
 particular statute or regulation (citiiig sec 1562, 
 R. S., Howell's Case, 25 Ct. Cls., 288, 7 Comp. 
 Dec, 506, 15 Comp. Dec, 157), or perhaps by 
 executive act (citing U. S. v. Vinton, 2 Sumn. 
 299 [28 Fed. Cas. No. 16624]; 3 Op. Atty. Gen., 
 124, but compare 4 Op. Atty. Gen., 608), does 
 not pro^-e that the office itself vests at an earlier 
 time than the date of commission. (29 Op. 
 Atty. Gen., 257; see also, note to Constitution, 
 Art. II, sec. 2, clause 2, "VI. What constitutes 
 appouitment." Compare 18 Op. Atty. Gen., 
 393, noted below, under "Status of officer jjend- 
 ing confirmation by Senate of his promotion.") 
 
 The fact that the officer's appointment in 
 this case conferred rank from the date of the 
 vacancy, and that he was allowed pay in the 
 higher grade from the date of the vacancy to 
 the date of commission does not affect the 
 "view that until his commission was signed by 
 the President the office did not vest. Rank 
 and office are not identical. The former is 
 merely an incident of the office, and is used as 
 a designation or distinction conferred upon an 
 officer in order to fix his relative position with 
 reference to other officers or to determine his 
 pay and emoluments. The allowance of pay 
 to the officer in this case from the date of the 
 vacancy appears to have been made in accord- 
 ance with an immemorial custom of the War 
 Department which has been followed by the 
 accounting officers, although it rests on no 
 statutory authorization. (25 Op. Atty. Gen., 
 591, citing 7 Comp. Dec, 506, 511; see also 
 Downes v. U. S., 52 Ct. Cls., 237.) 
 
 The act of August 29, 1916 (39 Stat., 581), 
 provided for an increase in the commissioned 
 personnel of the Navy, but required that pro- 
 motions to the grades of commander, captain, 
 and rear admiral of the line should be made by 
 selection only upon recommendation of a board 
 of rear admirals to be convened during the 
 month of December of each year. (39 Stat., 
 578.) Held, that no officers could be promoted 
 to the grades named until after next January 
 first, but that when so promoted their dates of 
 rank in commissions should be the dates on 
 which the vacancies occurred to which pro- 
 moted. With reference to the additional posi- 
 tions in said grades authorized by said act, the 
 
 650 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1458. 
 
 dates of rank in commissions should be August 
 29, 1916, that being the date on which such 
 vacancies occurred . As to one vacancy in the 
 grade of rear admiral which existed prior to 
 August 29, 1916, the officer selected therefor 
 should be given date of rank in commission as 
 of the vacancy which he is promoted to fill. 
 (File 28687-4:1, Sept. 16, 1916.) 
 
 The act of August 29, 1916 (39 Stat., 609), 
 created certain original vacancies in the grade 
 of brigadier general in the Maidne Corps, and 
 the question arose as to date of rank to be 
 inserted in the commissions of officers promoted 
 thereto. Held, that to give the officers said 
 higher rank from the date of the vacancies 
 which are filled by their promotion is a custom 
 which obtains in all branches of the ser^dce, and 
 this custom has received the approval of Con- 
 gress in various enactments, either expressly 
 or by implication. Nevertheless, where the 
 filling of vacancies is discretionary with the 
 President, the commissions need not be made 
 to date from the occurrence of the vacancies 
 unless the appointing power so decides. (File 
 28687-7, Oct_. 7, 1916, citing file 7151-03. The 
 promotions in these cases were dated from 
 August 29, 1916: see Na\^ Register, 1917, pp. 
 230, 231.) 
 
 The act of August 29, 1916 (39 Stat., 609) pro- 
 \'ided that the authorized number of commis- 
 sioned officers in the Marine Corps should be 
 based on the authorized number of enlisted 
 men, distributed between the various ranks in 
 the proportions therein prescribed ; and further 
 provided (39 Stat., 612), that the President 
 might increase the number of enlisted men 
 whenever, in his judgment, this should become 
 necessary to place the country in a complete 
 state of preparedness. By Executive Order of 
 March 26, 1917, the President exercised his 
 power by authorizing an increase in the number 
 of enlisted men. Further increases in the 
 nimaber of enlisted men, for the period of the 
 war, were authorized by act of May 22, 1917. 
 (40 Stat., 84.) Held, that vacancies in com- 
 missioned ranks resulting from the President's 
 order increasing the number of enlisted men, 
 were created on the date of said order, and va- 
 cancies resulting from the temporary increase 
 in the number of enlisted men authorized by 
 the act of May 22, 1917, were created on the 
 date of said act; held, further, that the date of 
 rank to be given officers promoted to vacancies 
 so created should ordinarily be the date of 
 vacancy to which promoted. In no case, how- 
 ever, should any officer permanently or tempo- 
 rarily promoted be given rank from a date 
 earlier than his date of rank in the lower grade. 
 (File 28687-5:1, Sept. 7, 1917.) 
 
 For other cases, see note to section 1457, Re- 
 vised Statutes, "When retirement or advance- 
 ment on retired list takes effect' ' ; and see note 
 to section 1561, Re^ised Statutes. 
 
 Status of oflB.cer pending' promotion. — 
 WTiere, upon the retirement of a rear admiral, a 
 commodore next in line was nominated to be a 
 rear admiral to fill the vacancy, and before 
 action thereon by the Senate the said commo- 
 dore attained the age of 62 years and was retired 
 under section 1444, Re^-ise"d Statutes, as a com- 
 modore: Ad\dsed, that according to the law 
 and usage of the sersdce, the officer was entitled 
 
 by relation to be a rear admiral from the date 
 when the vacancy occiu-red and to receive the 
 pay of a rear admiral from that date; and if the 
 Senate should confirm his nomination he might 
 be commissioned as a rear admiral and placed 
 on the retired list as of that grade. (18 Op. 
 Atty. Gen., 393; compare 29 Op. Atty. Gen., 
 257, and 25 Op. Atty. Gen. ,,591, noted above, 
 under "Antedating rank on promotion.") 
 
 WTiere an officer accepts a recess promotion, 
 and thereafter becomes eligible for retirement 
 by reason of age, before the adjournment of 
 Congress and before the appointment is acted 
 upon by the Senate, he is entitled to be retired 
 with the rank of his new appointment. (29 Op . 
 Atty. Gen., 598.) 
 
 While, if an officer is not confirmed, he falls 
 back into his former office, until that event 
 happens his actual office is that to which he has 
 been appointed by the President under his 
 constitutional power to fill offices where vacan- 
 cies exist during the recess of Congress. All 
 such recess appointments, while they continue 
 in force, confer an absolute title to the office 
 named and to the rank thereof, and such ap- 
 pointments continue until rejected by the 
 Senate or until the Congress adjourns without 
 any action being taken thereon. (29 Op. Atty. 
 Gen., 598.) 
 
 The acceptance by an Army officer of a recess 
 appointment is proAUsional only, and leaves to 
 the officer a reversionary right to his former 
 office in case his new appointment is not con- 
 firmed by the Senate. An Army officer who 
 accepts a recess promotion and thereafter be- 
 comes eligible for retirement by reason of age 
 before the adjournment of Congress and before 
 the appointment is acted upon by the Senate, 
 is entitled to the rank of his new appointment. 
 (29 Op. Atty. Gen., 598.) 
 
 Under the laws reciuiring promotion by 
 seniority and the practice of the Presidents 
 and the War Department in conformity there- 
 with, in case of such a promotion the officer next 
 in seniority, if qualified, would be promoted 
 to fill the vacancy thus created, and then the 
 next one, and so on down the line. Then, if 
 the vacating of the office by the officer first thus 
 promoted (recess of the Senate) be but provi- 
 sional, and dependent upon liis confirmation, 
 so also would be those of the succeeding officers. 
 It might happen that the Senate should adjourn 
 without confirming the appointment of an 
 officer promoted to a higher grade, while con- 
 firming that of a junior officer nominated to the 
 office which the senior officer had held. This, 
 if effectual, would put the officer whose promo- 
 tion was not confirmed out of office and out of 
 the service, despite the provisions of section 
 1229, Revised Statutes; but such a case can 
 hardly be supposed; the injustice of the case 
 would certainly restrain the Senate from taking 
 action which would have that result. (29 Op. 
 Atty. Gen., 600.) 
 
 An officer due for promotion by seniority to 
 the grade of captain, to fill a vacancy in said 
 grade which occurred prior to August 29, 1916, 
 was examined for promotion to said vacancy 
 but his examination was not finally acted upon 
 prior to the date mentioned. Held, that his 
 promotion had not been consummated on 
 August 29, 1916, and upon the approval of the 
 
 54G41°— 22- 
 
 42 
 
 651 
 
Sec. 1458. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 act of that date (39 Stat., 578) requiring subse- 
 quent promotions to tho grades of rear admiral, 
 captain, and commander, to be made ])y selec- 
 tion only, the proc-eedings which had been 
 taken in the case of this ollicer became null and 
 void. (File 2(iL'()0-36(W:2, Oct. 9, 1916.) 
 
 An ollicer became due for promotion to the 
 grade of rear admiral on March 2(5, 1913, was 
 examined and found (lualilied, but was not 
 commissioned in the higher gi'ade, nor was 
 the board's finding as to his c[ualilication8 
 approved by the President. JIdd, that the 
 ollicer continued in the status of a captain on 
 the active list of the Navy, and was therefore 
 legally aAailable for selection for compulsory 
 retirement from the grade of captain under the 
 provisions of section 9 of the Ka^y personnel 
 art of March 3, 1899 (30 Stat., 1006). (File 
 26297-14, June 7, 1913.) 
 
 A second lieutenant in the Marine Corps 
 became due for promotion to first lieutenant 
 on May 13, 1908; he was examined for such 
 promotion in Ajiril, 1909, was found not quali- 
 fied, and the linding of the board approved on 
 April 23, 1909. In the meantime, in March, 
 1909, he was tried by general court-martial and 
 sentenced among other things to lose 30 num- 
 bers in his grade, which sentence was approved 
 March 30, 1909. During tliis period the officer 
 had been carried in the Navy Register as a 
 first lieutenant "subject to examination and 
 confirmation," standing No. 53 in a list of 92. 
 Hfld, that the officer's grade at the time of the 
 approval of his sentence was that of second 
 lieutenant and not first lieutenant, and that 
 his lineal position was No. 1 in the grade of 
 second lieutenant, awaiting promotion; accord- 
 ingly, held that the sentence requiring him to 
 lose 30 numbers in his grade must be executed 
 by reducing him 30 numbers in the grade of 
 second lieutenant. (File 26260-308:D, June 4, 
 1909.) 
 
 A second lieutenant in the Marine Corps, 
 ha\'ing been nominated by the President and 
 confirmed by the Senate, was appointed by the 
 President a temporary first lieutenant in the 
 Marine Corps, on August 14, 1917, to rank from 
 May 22, 1917. His commission was mailed to 
 his commanding officer for delivery on August 
 23, 1917. In the meantime, on August 18, 1917, 
 the officer was reported to have committed 
 certain offenses for which his trial by court- 
 martial was ordered on August 29, 1917, subse- 
 quent to his appointment but prior to his notifi- 
 cation and accei)tance thereof. The act of 
 appointment was comi)lete when the commis- 
 sion was signed. If the office to wliich he was 
 appointed was one from which he could not be 
 removed by the President, the action of the 
 Chief Executive in making the appointment 
 would be irrevocable. However, in this case 
 the temporary appointment was, under the 
 terms of the law, revocal)le at the Avill of the 
 President, and accordingly, the commission, 
 although complete when signed and sealed, 
 might nevertheless be withheld and revoked 
 by the Secretary of the Navy, acting for the 
 President. (File 26260-4837, Sept. 13 and 15, 
 1917.) 
 
 For other cases, see note to Constitution, 
 Article II, section 3. 
 
 Death of officer before promotion com- 
 plete. — A commission can not be issued in the 
 name of an ollicer whose death occurred after he 
 was nominated by the President but prior to 
 his confirmation by the Senate. (29 Op. Attv. 
 Gen., 254.) 
 
 Where a person is appointed to office, either 
 during a session or in a recess of the Senate, 
 and dies before confirmation, his personal 
 representatives must be remitted to Congress 
 for the payment of salary earned by such 
 officer. (25 Op. Atty. Gen!, 312; see sec. 1761, 
 R. S.) 
 
 WTiere an officer died before accepting a com- 
 mission promoting him to a higher grade, his 
 acceptance will be conclusively presumed. 
 (12 Op. Atty. Gen., 229; see also Comp. 
 Dec., Sept. 23, 1915, 175 S. and A. Memo., 3780.) 
 
 The President may send to the Senate for 
 approval of his action the names of officers 
 on the retired list of the Army nominated by 
 him for advancement in rank on account of 
 civil-war ser\ice (act Apr. 23, 1904, 33 Stat., 
 264) after the adjournment of the last session 
 of Congress, but who died before the convening 
 of the present session; and upon approval by 
 the Senate, the personal representatives of the 
 deceased officers mil be entitled to receive the 
 advanced pay due such officers without fur- 
 ther action by Congress. Such advancement 
 in rank on the retired list does not constitute a 
 promotion to a higher office. (25 Op. Atty. 
 Gen., 312; see also 25 Op. Atty. Gen., 1S5.) 
 
 Promotion of ojSB.cer accomplished by 
 confirmation of his successor. — See 23 
 Op. Atty. Gen., 30, noted under section 1363, 
 Revised Statutes, "Effect of nomination and 
 confirmation of an officer for appointment to 
 grade already full," and see 13 Op. Atty. Gen., 
 44, noted under section 1457, Revised Statutes, 
 "(Correction of erroneous retirement." 
 
 How seniority is determined. — Promo- 
 tion among officers in the line of the Navy goes 
 by seniority, and seniority is determined by the 
 date of commission — that is to say, the date 
 from which the commission recites that the 
 appointment to a given grade begins. (18 Op. 
 Atty. Gen., 393; see also Toulon v. U. S., 52 
 Ct. Cls., .333; 24 Comp. Dec, 177; 22 Comp. 
 Dec, 623; 17 Comp. Dec, 605; 22 Comp. Dec, 
 565, 566.) 
 
 Precedence of oflS.cers promoted by 
 selection instead of seniority. — The act of 
 July 25, 1866, section 1 (14 Stat., 222), enlarged 
 the number of line officers in higher grades of 
 the Navy, created original vacancies in each 
 grade above that of lieutenant, and provided 
 that appointments to fill such vacancies be 
 made as follows: "That the increase in the 
 grades authorized by this act shall be made 
 by selection from the grade next below of offi- 
 cers who have rendered the most efficient and 
 faithful service during the recent war, and who 
 possess the highest professional qualifications 
 and attainments." When oflicers are pro- 
 moted by selection they should be considered 
 as having gained length of service according to 
 their promotion in determining their relative 
 rank ^vith other grades of the Navy% to a suffi- 
 cient extent to place them above the officers 
 over whom they were thus advanced. But in 
 
 652 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1458. 
 
 no case do the officers over whom they are thus 
 advanced lose anji;hing in length of service 
 which they had already rendered. (17 Op. 
 Atty. Gen., 56.) 
 
 When the report of the Board of Rear Ad- 
 mirals for selection for promotion, created by 
 act of August 29. 1916 (39 Stat., 578), is ap- 
 proved by the President, "the officers rec- 
 ommended therein shall be deemed eligible for 
 selection, and if promoted shall take rank with 
 one another in accordance with their seniority 
 in the grade from which promoted." (Act 
 Aug. 29, 1916, 39 Stat., 579.) 
 
 "Promotion" and "appointment" com- 
 pared. — ' 'A promotion in the Army is an ap- 
 pointment to a higher office therein. The cus- 
 tom, so far as I am aware, has always been to 
 nominate the promoted officer to the Senate 
 and subsequently to appoint and commission 
 him anew." (.30 Op. Atty. Gen., 177.) 
 
 "Promotion in the Army is, in the last 
 analysis, merely an appointment to a higher 
 office therein; and this fact is illustrated and 
 confirmed by the long established practice of 
 submitting nominations for promotion in the 
 Army to the Senate for confirmation, and of 
 thereafter issuing a commission for the higher 
 office. Promotion, therefore, ha\'ing regard 
 to its real nature, is as much or as little within 
 the President's constitutional power of appoint- 
 ment as an original appointment, and is sub- 
 ject, in so far as that matter is concerned, to 
 the same considerations." (29 Op. Atty. Gen., 
 254; see also Op. Atty. Gen., Dec, 27, 1916, 
 file 28687-4:8.) 
 
 Promotion is a mode of appointment, and it 
 is not the less an appointment becatise the per- 
 son promoted has previously held another ap- 
 f)ointment in the serA^ice. Wlien a second 
 ieutenant is promoted to the rank of fii'st 
 lieutenant, he is appointed to stich rank by and 
 with the advice and consent of the Senate. 
 (17 Op. Atty. Gen.. 34. holding that the word 
 "appointment" as tised in sec. 1219, R. S., 
 "applies to appointments on promotion as 
 well as to original appointments," notwith- 
 standing the prior constmction of the War 
 Department to the contrary. This opinion was 
 overruled in 17 Op. Atty. Gen., 196, noted 
 below.) 
 
 A clear and well-defined distinction between 
 appointment and promotion has existed, and 
 been recognized in the War Department con- 
 tinuously since the establishment of the Army. 
 Appointment is the selection of persons, not 
 now in the Army, as officers of it, or the designa- 
 tion by selection of an officer already in the 
 Army to a vacancy which is not required by 
 the law or the regulations to be filled by pro- 
 motion according to seniority. Promotion is 
 the advancement of officers already in the 
 Army, according to seniority, to vacancies 
 happening in the different arms of the ser^•ice 
 and according to rules prescribed by law or 
 by regiUations ha\ing the force of law. (17 
 Op. Atty. Gen., 196; affirmed 24 Op. Atty. 
 Gen., 74 — holding that the word "appointment" 
 in section 1219, R. S., applies only to the origi- 
 nal entry of the officer into the regular service 
 or subsequent appointment by selection; but 
 that it does not apply to promotions by senior- 
 ity as defined in the Vegtilations of the Army — 
 
 overruling 17 Op. Atty. Gen., 34, noted above. 
 See also file 11130-35, Dec. 20, 1916.) 
 
 The advancement of a line officer of the 
 Marine Oorps to major and paymaster, and the 
 advancement of another line officer to major, 
 adjutant and inspector, were "appointments 
 by selection at the discretion of the appointing 
 power, and were not promotions under the 
 statutes regulating such promotions." Their 
 subsequent advancement to a higher rank 
 in their respective branches of the Marine Corps 
 was a promotion in the case of each officer, and 
 not an "appointment" within the meaning of 
 section 1219, Re^'ised Statutes, fixing the rela- 
 tive rank between officers "having the same 
 grade and date of appointment and commis- 
 sion." " To hold that promotions are appoint- 
 ments where the officers thus promoted are in 
 different departments, but are not appoint- 
 ments where they are in the same department, 
 is to narrow the application of the statute by 
 reading into its general provisions a substantial 
 qualification of which its language gives no 
 suggestion." (24 Op. Atty. Gen., 74, affirming 
 17 Op. Atty. Gen., 196, noted above.) 
 
 As to the difference between promotion and 
 appointment, in fixing the relative rank of 
 officers, it may be observed that what is tech- 
 nically called an appointment may be in every 
 practical sense a promotion. Without vouch- 
 ing for the strict accuracy or completeness of 
 the definitions of "appointment" and "pro- 
 motion" in 17 Op. Atty. Gen., 196 [quoted 
 above] it is apparent that the advancement of 
 an officer to a higher grade, and to which he 
 could not then succeed in due course by sen- 
 iority, while called an appointment, is in fact 
 and effect a promotion, and it would seem that 
 an officer thus advanced should be entitled to 
 whatever benefit attaches to promotion. The 
 advancement of a captain in the I^Iarine Corps 
 to assistant adjutant and inspector, with the 
 rank of major, by whatever name it be tech- 
 nically called, is in fact a promotion. (23 
 Op. Atty. Gen., 155.) 
 
 "Gen. McClernand was given and accepted 
 a recess appointment which has not been con- 
 firmed or acted upon. This, I assume, was an 
 appointment by way of promotion to a higher 
 office." (29 Op. Atty. Gen., 598, 601.) 
 
 It has been the rule of the accounting officers 
 to hold that the appointment of an officer in 
 one branch of the ser\dce to an office in another 
 branch is an "original entry into the ser\dce" 
 within the meaning of section 1560 of the Re- 
 vised Statutes. (Comp. Dec, May 31, 1907, 
 76 S. and A. Memo., 372.) 
 
 The appointment of an officer from the office 
 of ensign in the Navy to the office of assistant 
 naval constructor, an office belonging to another 
 branch of the naval service, clearly was not a 
 promotion in course to fill a vacancy in the next 
 higher grade, but was an appointment which 
 must, in the absence of any special pro\'ision of 
 statute, be governed by the rules which apply 
 to appointments to office generally, with refer- 
 ence to commencement of pay, which is held 
 to be the date of acceptance of the office. (Comp. 
 Dec, Sept. 20, 1907, 79 S. and A. Memo., 462; 
 but see Comp. Dec, Aug. 12, 1915, 174 S. and A. 
 Memo., 3756, noted below.) 
 
 653 
 
Sec. 1459. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 An ensign in the line of the Navy, who was 
 appointed as an assistant naval constructor with 
 the rank of lieutenant (junior .^nadu) was not 
 ''advanced in grade or rank '' within the mean- 
 ing of the act of March 4, 1!)]3, (37 Stat., 892); 
 but his appointment as an assistant naval con- 
 structor is regarded as a new appointment. (20 
 Comp. Dec, 18(), Sept. 19, 1913; but see, Comp. 
 Dec, Aug. 12, 1915, 174 S.and A.Memo.,3756, 
 noted below). 
 
 Since the act of March 3, 1915 (38 Stat., 928, 
 945), which provided for transfer of ensigns to 
 the grade of assistant naval constructor, such 
 transfer invohdng an advance in rank, ensigns 
 BO transferred are advanced in rank pursuant to 
 law, and are entitled, under the act of March 4, 
 1913 (37 Stat., 892), to the pay and allowances 
 of assistant naval constructors from the dates 
 stated in their commissions, although prior to 
 the date of actual appointment in the constmc- 
 tion corps. (Comp. Dec, Aug. 12, 1915, 174 
 S. and A. Memo., 375().) 
 
 The appointment of a midshipman as an 
 assistant civil engineer was an "original entry 
 into the service " within the meaning of section 
 1560, Revised Statutes, and not a ''promotion 
 in course to fill a vacancy in the next higher 
 grade" within the meaning of the act of June 22, 
 1874 (18 Stat., 191), superseding section 1561, 
 Revised Statutes. (13 Comp. Dec, 606, Mar. 
 12, 1907.) 
 
 The appointment of a warrant officer to be a 
 temporary ensign in the Navy, pursuant to the 
 act of May 22, 1917 (40 Stat., 85), was an ad- 
 vancement in grade or rank pursuant to law, 
 within the meaning of the act approved March 
 4, 1913 (37 Stat., 892), and entitles the officer 
 to the pay of the higher grade or rank from the 
 date stated in his commission, (24 Comp. Dec, 
 401.) 
 
 The temporary appointment of a pay clerk 
 as an assistant paymaster is substantially a 
 promotion, and pay under such appointment 
 is authorized from date of rank and prior to 
 date of approval of his bond. (25 Comp. Dec, 
 550. Followed and extended, Comp. Dec, 
 May 5. 1919, file 26254-2795:1.) 
 
 For other cases see note to section 1407, 
 Revised Statutes, under "Appointment of en- 
 listed man as warrant ofiicer not a promotion"; 
 and note to section 1408, Revised Statutes, 
 "Appointment as warrant officers." 
 
 Acceptance of promotion. — The accept- 
 aiKi^ (if a promotion is not necessary to con- 
 summate the appointment of an officer in the 
 naA'al service to a higher gi"ade. The accept- 
 ance of a promotion does not, as the acceptance 
 of an original appointment does, invest an 
 unofficial person with official character. It 
 exalts his rank alone. If it devolves upon him 
 official duties which were inaccessible to him 
 before, it was not from defect of ofiicial respon- 
 sibility on his part that the higher duties could 
 not have been demanded of him by the Govern- 
 ment, but rather because the Government had 
 chosen to vest to that extent in his superior 
 officers the privilege of performing such higher 
 duties. As a commissioned officer of the Navy, 
 
 he had already boimd himself to obey all law- 
 ful orders of his su])('ri(irs, and no accession of 
 dignity to his rank could augment this obliga- 
 tion. The acceptance of a promotion, then, is 
 not the act of accepting an office in the sense 
 in which that jjhrase is used to denote the as- 
 sumption of official responsibility. In so far 
 as his acceptance of the promotion bears any 
 analogy to the acceptance per se of an office he 
 may be said to have accepted all promotions to 
 which he might attain when he entered into 
 the naval service imder his first commission. 
 On the other hand, while a promoted officer 
 may not, and in some situations certainly could 
 not, decline the performance of duties of cor- 
 responding grade, it is plain that he might de- 
 cline the rank with its honors and emoluments. 
 But in doing so it is clear that his action would 
 in substance be less a declination than a resigna- 
 tion. (12 Op. Atty. Gen., 229, holding that 
 where an officer died before accepting his pro- 
 motion, the presumption is conclusive in law 
 that it would have been accepted by him had 
 he lived to receive it; see also Comp. Dec, 
 Sept. 23, 1915, 175 S. and A. Memo., 3780.) 
 
 Oath of office on promotion. — A transfer, 
 promotion, or reduction from one grade to 
 another is an appointment to that gi'ade, and a 
 clerk in an executive department so trans- 
 ferred, promoted, or reduced is required to take 
 the oath of office prescribed in section 1757, 
 Revised Statutes. (8 Comp. Dec, 521.) 
 [Note: By act of May 13, 1884, section 2 (23 
 Stat., 22), the oath of office prescribed by 
 section 1757, Revised Statutes, must be taken 
 by every person ai^pointed to any office of 
 honor or profit either in the civil, military, or 
 naval service. See also act Mar. 3, 1899, sec. 
 25 (30 Stat., 1009)]. 
 
 A clerk in an executive department who is 
 appointed to another position or to a clerkship 
 of another gi-ade must take the oath of office 
 prescribed in section 1757, Re\'ised Statutes. 
 The fact that these clerks may have taken an 
 oath of office when originally appointed does 
 not relieve them from taking a new oath upon 
 every new appointment for each new appoint- 
 ment they receive is to a new office, and before 
 entering upon that office they are required by 
 the provisions of section 1757, Revised Stat- 
 utes, and of Article VI of the f'onstitution to 
 take an oath of office. It was held by the At- 
 torney General (19 Op. Atty. Gen., 221) that a 
 person who was his own successor in office must 
 take the oath which the law requii-es shall be 
 taken upon every newappointmentbefore enter- 
 ing upon the duties. 1 1 necessarily follows that if 
 a person, instead of being his o\va successor, is 
 appointed to another position and in another 
 place, he must take a new oath of office. (1 
 Comp. Dec, 4.) 
 
 The promotion of an officer from the grade of 
 ensign to that of lieutenant (junior grade) "was 
 not an original entry into the service, requiring 
 a formal acceptance or oath of office." (Comp. 
 Dec, Sept. 23, 1915, 175 S. and A. Memo., 3780.) 
 
 For other cases, see note to section 1757, 
 Re\dsed Statutes. 
 
 Sec. 1459. [Retired officers withdrawn from command, and from line of 
 promotion.] Officers on the retired list shall be witlidraAvn from command, 
 excej)t in the case provided in sections fourteen hundred and sixty-three and 
 
 654 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1461. 
 
 fourteen hundred and sixty-four, and from the Une of promotion on the active 
 Hst.— (3 Aug., 1862 [shoidd be "1861"], c. 42, s. 22, v. 12, p. 290; 21 Dec, 
 1861, c. 1, ss. 3, 4, V. 12, p. 329.) 
 
 destroy the right to promotion ' ' on the reserved 
 list." The line of promotion referred to in that 
 act is plainly that which exists for officers in 
 active service, involving increased rank and 
 pay. From this line retired officers are very 
 properly withdrawn, because it would be un- 
 just to the officers in active service if their 
 right to promotion should be obstructed by the 
 claims of those who are relieved from duty. 
 But in its stead they may receive promotion 
 "on the reserved list." (10 Op. Atty. Gen., 
 107; see notes to sections 1461 and 1465, R. S.) 
 
 Restoration of officers to "line of pro- 
 motion." — Under the act of March 2, 1895 
 (28 Stat., 910), authorizing the President to 
 place "on waiting orders out of the line of 
 promotion, with one-half active-duty pay," 
 officers of the Revenue-Cutter Ser-vT.ce [now 
 Coast Guard] who are permanently incapac- 
 itated, and to fill the resulting vacancies by 
 promotion in the order of seniority, held, that 
 an officer placed on "permanent waiting or- 
 ders" is withdrawii from the line of promotion, 
 but may be restored to the service in his former 
 rank when his disability ceases, without Con- 
 gressional action. (21 Op. Atty. Gen., 286.) 
 
 For other cases, see note to section 1465, Re- 
 vised Statutes. 
 
 Employment on active duty. — From sec- 
 tions 1459 and 1462, Revised Statutes, it ap 
 pears to be the policy of the law to prevent the 
 employment of officers on the retired list of the 
 Navy save under some exceptional circum- 
 stances. (3 Comp. Dec, 581. For other cases, 
 see sec. 1462, R. S.) 
 
 Active duty for retired officers. — See note to 
 
 section 1462, Revised Statutes. 
 Promotion on retired list. — See notes to sec- 
 tions 1460 and 1461, ReAdsed Statutes. 
 Restoration of retired officers to active list. — See 
 section 1465, Revised Statutes. 
 Promotion on retired list. — ^The act of 
 February 28, 1855 (10 Stat., 616), declared that 
 officers placed on the reserved list should be 
 ineligible to further promotion. But the third 
 section of the act of January 16, 1857, to amend 
 the first-named act, expressly repealed this 
 provision, and the fointh section declared that 
 reserved officers might be promoted on the 
 reserved list, by and with the advice and con- 
 sent of the Senate, but no such promotion 
 should entitle them to any pay beyond that 
 to which they were entitled when so reserved, 
 nor should they, by such promotion, take any 
 higher rank than they would have taken had 
 they been retained in the active service of 
 the Navy. The twenty-second section of the 
 act of August 3, 1861, prowling for the better 
 organization of the military" establishment 
 enacts that "if any officer of the Navy shall 
 have become or shall hereafter become, inca- 
 pable of performing the duties of his office, he 
 shall be placed upon the retu'ed list, and mth- 
 drawn from active service and command, and 
 from the line of promotion," with certain pay 
 and emoluments therein specified, graduated 
 according to the rank of the different classes of 
 officers. The clause of that section which with- 
 draws officers who may be placed on the retired 
 list from "the line of promotion," does not 
 
 Sec. 1460. [Promotions to rear-admiral on the retired list. Superseded.} 
 
 This section provided as follows: 
 
 "Sec 1460. There may be allowed upon the 
 retired list of the Navy nine rear-admirals by 
 promotion on that list: Provided, That this 
 section shall not prevent the Secretary of the 
 Navy from promoting to the grade of rear-admiral 
 on the retired list, in addition to the number 
 herein provided, those commodores who have 
 commanded squadrons by order of the Secre- 
 tary of the Navy, or who have performed other 
 highly meritorious service, [or who, being at 
 the outbreak of the late war of the rebellion 
 citizens of any State which engaged in such 
 rebellion, exhibited marked fidelity to the 
 Union in adhering to the flag of the United 
 States.]"— (16 July, 1862, c 183, s. 14, v. 12, 
 p. 585; 25 JiUy, 1866, c 231, s. 1, v. 14, p. 222. 
 15 Aug., 1876, c. 302, v. 19, p. 204.) 
 
 It was superseded by act of August 5, 
 1882 (22 Stat., 286), pro^dding that "hereafter 
 there shall be no promotion or increase of pay 
 in the retu-ed list of the Navy but the rank and 
 
 pay of officers on the retired list shall be the 
 same that they are when such officers shall be 
 retired." (See 17 Op. Atty. Gen., 495; also 
 see note to sec. 1461, R. S.) 
 
 Pay of officers on retired list was to be 
 based on pay which they received on the active 
 list at the date of retirement, under pro\'i'<ions 
 of section 1588, Revised Statutes. (See also 
 sec. 1591, R. S.) 
 
 Advancement for meritorious service. — 
 The act of March 2, 1867, section 9, chapter 174, 
 providing "that no promotion shall be made to 
 the grade of rear-admii'al upon the retired list 
 while there shall be in that grade the full num- 
 ber allowed by law," does not forbid the ad- 
 vancement to that grade on the retired list, 
 under section one of the act of July 25, 1866, of 
 any commodore who may have commanded a 
 squadron by order of the Secretary of the Navy, 
 or performed highly meritorious 8er->/ice. (13 
 Op. Atty. Gen., 544.) 
 
 Sec. 1461. [Promotion of retired officers with running- mates on active list. 
 Superseded.] 
 
 This section provided as follows: 
 
 "Sec 1461. Officer.s on the retii-ed list of 
 the Navy shall be entitled to promotion as their 
 several dates upon the active list are promoted : 
 
 Provided, That no promotion shall be made to 
 the gi'ade of rpar-admiral upon the retired list 
 while there shall be in that grade nine rear- 
 admirals by promotion on that list, exclusive 
 
 655 
 
Sec. 1462. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 Ill those 80 promoted by reason of ba\ang coni- 
 nianded squadrons by order of the Secretary of 
 tlie Navy, or of having performed other highly 
 meritorious service. No promotion to the 
 grade of rear-admiral on the retired IL^t while 
 there shall be in that grade the full nnniber 
 allowed by law."— (IC Jan., 1857, c. 12, 8. 4, 
 V. 11, p. 154; 2 Mar., 1867, c. 174, e. 9, v. 14, 
 p. 517; 30 Jan., 1875, c. 30, v 18, p. 304.) 
 
 It was superseded by act of August 5, 1882 
 (22 Stat., 28(1), quoted in note to section 14G0, 
 llevL^ed Statutes. (26 Op. Atty. Gen., 501.) 
 
 Promotion on the retired list under cer- 
 tain specilied conditions was authorized by act 
 of July 1, 1918 (40 Stat., 717). Advancement 
 to the' pay of higher ranks was authorized for 
 retired warrant officers and chief warrant 
 officers by act of April 10, 1918, (40 Stat., 516.) 
 See also notes to sections 1459 and 1465, Re- 
 vised Statutes 
 
 Pay of officers on retired list was to be 
 based on pay which they receive on the active 
 list at date of retirement, imder pro^^sion^ of 
 section 1588, Revised Statutes. (See also sec. 
 1591, R. S.) But see acts of April 10, 1918, 
 and July 1, 1918 (40 Stat., 516, 717). 
 
 Advancement in rank of retired offi- 
 cers. — See note to section 1457, Revised 
 Statutes. 
 
 Promotion under this section was man- 
 datory, and not subject to examination.— 
 Section 1461, Revised Statutes, gives to naval 
 officers on the retired list a right to promotion 
 on that list as their several dates on the active 
 list are promoted. The Navy Department 
 ruled that the law authorizing such promo- 
 tions on the retired list was not strictly imper- 
 ative, but left the matter in some degree sub- 
 
 ject to the discretion of the President to select 
 such officers as in his opinion might be "en- 
 titled" to promotion on the retired li.st. And 
 although a few such officers were afterwards 
 promoted no general i)romotions of retired of- 
 ficers were made. I n ^•iew of the fact that there 
 are officers retire(l from active service who in 
 case of war would be entirely unfit for any 
 duty, this iuterj)retatiou seemed to the Navy 
 Dejjartment to be justified. However, the 
 law makes no discrimination and authorizes 
 no examination in the cases of retired officers 
 to determine their fitness for ad\ancement to 
 higher grades than those in which they were 
 retired for causes disqualifying them for active 
 service. The language of section 1461 is ex- 
 plicit and distinct in its character. The word 
 "entitled," which it is thought may be con- 
 strued as giving a right of selection to the 
 President, will hardly bear that interpretation. 
 There is undoubtedly force in the argument 
 which is suggested against this system of in- 
 discriminate promotion; but it is not a question 
 of what the law ought to be, but of what the 
 law is. A practical effect of the law which 
 would be imdesirable cannot be allowed to 
 overcome its express terms. Such operation 
 of the law presents a question for the legisla- 
 tive and not the executive branch of the 
 Government. (17 Op. Atty. Gen., 36. But 
 see notes to sec. 1458, R. S., as to constitution- 
 ality of legislation requiring promotions by 
 seniority on the active list.) 
 
 Promotion on retired list an exception 
 to settled policy. — Promotion in the case of 
 a retired officer is necessarily an exceptional in- 
 cident, due to the generosity of the Govern- 
 ment, and not contemplated by the system of 
 retirement. (27 Op. Atty. Gen., 214.) 
 
 Sec. 1462. [Active duty for retired officers. ] No officer on the retired list of 
 the Navy shall be employed on active duty except in time of war. — (3 Mar., 
 1873, c. 230, V. 17, p. 547.) 
 
 Active duty for retired officers was authorized 
 by act of June 7, 1900 (31 Stat., 703), which 
 expired by its terms at the end of 12 years 
 from date of its enactment. 
 
 Active duty for retired officers, with their con- 
 sent, was authorized by act of August 22, 
 1912 (37 Stat., 329). 
 
 Active duty for retired oflBcers of the Navy, 
 Marine Corps, or Coast Guard, during the 
 existence of war or national emergency, 
 was authorized bv act of July 1, 1918 (40 
 Stat., 717.) 
 
 Army officers retired for physical disability 
 are to be examined from time to time, 
 and if found able to perform service of 
 value to the Government shall be assigned 
 to such duty as the Secretary of War may 
 approve. (Act Aug. 29, 1916, 39 Stat., 
 629). 
 
 Assignment of retired ofiicers to command, in 
 time of war, was authorized by sections 
 1463 and 1464, Revised Statutes. 
 
 Detail of retired officers to educational institu- 
 tions, was authorized by section 1225, Re- 
 \ised Statutes, as amended, and other laws 
 noted under that section. 
 
 Pay of retired officers employed on active duty, 
 was fixed by section 1592, Re\dsed Stat- 
 utes, by acts of August 29, 1916 (39 Stat., 
 581), and April 10, 1918 (40 Stat., 516), 
 and also by the particular enactments, 
 above cited, authorizing their employment 
 on active duty. 
 Promotion on retired list of officers employed 
 on active duty pursuant to act of July 1, 
 1918 (40 Stat., 717), was authorized by 
 that act. 
 Retired enlisted men may be assigned to ac- 
 tive duty in time of war or when a national 
 emergency exists. (Act Aug. 29, 1916, 
 39 Stat., 591; see also act Mar. 3, 1915, 
 38 Stat., 941.) Promotion of men so em- 
 ployed on active duty is authorized by act 
 of July 1, 1918 (40 Stat., 719.) 
 Historical note. — By act of March 3, 1873 
 (17 Stat., 556\ it was pro\'ided "that no officer 
 on the retired list of the NaA^ shall be em- 
 ployed on active duty except in time of war." 
 At the date of this enactment, certain retired 
 officers were employed on active duty, and 
 the question arose whether they were entitled 
 to be continued on such duty. It was held 
 
 656 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1462. 
 
 by the Comptroller of the Treasury, March 28, 
 1873 (see ''Acts and Resolutions Relating 
 Chiefly to the Navy and Na\'y Department," 
 1872-1873, pp. 42, 43), that the prohibition 
 in the act quoted applied only to putting 
 officers on duty after the date of the act, and 
 although it became immediately effective 
 upon date of its approval, did not operate to 
 deprive retired officers of duty pay for the 
 period that they were continued on active duty 
 after its enactmentj but that, "any officer, 
 however, on the retired list, who, at the date 
 of the act, was on duty under orders from the 
 Navy Department, will be entitled to his duty 
 pay until relieved, up to any period previous 
 to the first of July next." 
 
 By act of Jime 7, 1900 (31 Stat., 703), it was 
 provided that any retired officer might be "or- 
 dered" to active duty "dm-ing a period of 
 twelve years from the passage of this act." 
 Upon expiration of the period mentioned, all 
 retired officers on active duty under orders 
 issued during the said period, were detached 
 from such duty, and thereafter no retired officers 
 were employed on active duty until approval 
 of the act of August 22, 1912 (37 Stat._, 329), 
 and in accordance with the terms of said act. 
 (See records of Bureau of Navigation, Navy 
 Department, and Headquartei-s, U. S. Marine 
 Corps.) 
 
 Employment on active duty exception 
 to general policy.— At the time of the 
 passage of the act of June 7, 1900 [above noted], 
 section 1462, Revised Statutes, prohibited the 
 employment of retired officers on active duty 
 except in time of war. There is no other 
 statute in effect now [October 13, 1908], which 
 authorizes the employment of such officers on 
 active duty in time of peace. The act of June 
 7, 1900, made a specific exception to the statute 
 then in force, and provided that during a 
 limited period certain officers on the retired list, 
 viz, those who might be selected by the Secre- 
 tary of the Navy, might be ordered to such 
 active duty as they aTe able to perform. The 
 said act is, therefore, a special act relating to 
 a particular subject, and makes exception to 
 the general law in effect at its passage. (15 
 Comp. Dec, 235.) 
 
 From sections 1459 and 1462, Revised Stat- 
 utes, it appears to be the policy of the law to 
 prevent the employment of officers on the re- 
 tired list of the Navy, save under some ex- 
 ceptional circumstances. (3 Comp. Dec, 581.) 
 
 The act of 1900 making retired naval officers 
 subject to be ordered to such active duty as 
 they are able to perform must be read in connec- 
 tion with and as part of the act authorizing 
 their retirement, and read in view of the 
 manifest purpose of that act. So read, it is 
 certain that it does not mean that while a naval 
 officer by his retirement is debarred from 
 further promotion and its better pay, he still 
 remains, in time of peace, subject to orders to 
 the same permanent, continuous active duty 
 at sea and on shore as before his retirement. 
 On the contrary, it means, generally, that he is 
 relieved and retired from active duty, but sub- 
 ject in times of need (of which the Secretary is 
 the judge) to be temporarily ordered to such 
 active duty as he is able to perform. But these 
 cases are exceptions, arising from necessity, 
 
 and do not contemplate any general, permanent 
 or continuous assignment of a retired naval 
 officer to active duty or for a longer period than 
 the necessity of the seindce requires. Taken 
 Literally, this provision of the act of 1900 would 
 authoiize the assignment of every retired naval 
 officer to the same continuous and permanent 
 active service, both at sea and on shore, as 
 that upon which he first entered, while by his 
 nominal retirement he is debarred from that 
 promotion and better pay which, but for his 
 retirement, he might have earned by the same 
 service. This is not what the law means. (25 
 Op. Atty. Gen., 508; but see laws noted 
 above . ) 
 
 Examination of retired oflleer before 
 employment on active duty. — It is not to 
 be presumed that the President will exercise 
 the power of ordering retired officers to active 
 duty in time of war unless, upon full examina- 
 tion, he shall be satisfied that they are compe- 
 tent for the higher grade on the active list 
 which they have reached by promotion on the 
 retired List. Such investigation will un- 
 doubtedly be made in view of the fact that these 
 promotions on the retired list are not accom- 
 panied with the careful examinations which 
 attend those upon the active list. (17 Op. 
 Atty. Gen., 36, construing sec. 1461, R. S.) 
 
 Consent of Senate required before 
 orders to active duty in time of wa,r. — 
 Retired officers can be ordered to active duty 
 in time of war only by the President, by and 
 with the ad\'ice and consent of the Senate. 
 (17 Op. Atty. Gen., 36, citmg sec. 1463, R. S. 
 But see laws noted above.) 
 
 Retired officer on active duty is not an 
 officer of the active list. — It will be observed 
 that retired officers called upon active duty do 
 not return to the active list unless under 
 circumstances of a peculiar character. (17 
 Op. Atty. Gen., 36, citing sec. 1465, R. S.) 
 
 The act of June 7, 1900, authorizes the em- 
 ployment of retired officers on active duty, 
 but it does not restore them to the active list. 
 (15 Comp. Dec, 230.) 
 
 A retired officer of the Navy on active duty 
 under the provisions of the act of Jime 7, 1900, 
 was held not on the active list of the Navy, 
 within the meanin* of the act of May 13, 1908 
 (35 Stat., 128), which allowed a gratuity of six 
 months' pay to the widow or any designated 
 beneficiary upon the death of an officer on the 
 active list of the Navy in line of duty; and the 
 widow of a retired officer of the Navy dying 
 while on such active duty was held not en- 
 titled to the benefits of said provision of the act 
 of May 13, 1908. (15 Comp. Dec, 230.) 
 
 A retired officer of the Army assigned to 
 active duty is not restored to the active List, 
 and where such an officer dies on duty his 
 burial expenses can not be defrayed from an 
 appropriation for disposition of the remains of 
 officers on the "active List." (19 Comp. Dec, 
 540.) 
 
 When a retired officer is assigned to active 
 duty and subsequently detached therefrom, 
 this does not operate as a new retirement. 
 The retirement of an officer is a proceeding 
 that can only take place m a prescribed man- 
 ner, and it is not pretended that such proceed- 
 ing occurred, with reference to the officer in 
 
 657 
 
Sec. 1462. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 this case, more than once. (Roget i'. U. S., 148 
 U. S., 167.) 
 
 Retired officer practically restored to 
 active list while on duty. — The effect of 
 the act of June 7, 1900, is ]iractically to restore 
 retired olficer.'', wlieu employed ou active duty, 
 to the active list for pay purjjoses, and their pay 
 is not affected by the circumstance of their 
 retirement or by the grade or rank which they 
 may hokl on tlie retired list. (13 Comp. Dec, 
 241; see also 11 Comp. Dec., 37().) 
 
 Cannot be ordered to duty or appointed 
 to office limited to active list. — The act 
 of June 7, 1900 (31 Stat., 703), did not operate 
 nor was it intended to transfer back to the 
 acti^■e list any retired officer when ordered to 
 active duty. On the contrary, he is still a 
 retired officer and is borne as such upon the 
 retired list, though temporarily performing 
 active duty. Hence, if any law requires that 
 a certain duty be performed, or a certain place 
 be filled, by an officer of the active list, this pro- 
 vision does not authorize the assignment of a 
 retired officer thereto. This does not mean that 
 a retired officer may not, under this provision, 
 be assigned to duties usually performed by 
 officers on the active list, but only that he can 
 not be so assigned where any law requires the 
 duty to be performed by an officer of the other 
 class. (25 Op. Atty. Gen., 508.) 
 
 If the act of June 7, 1900 (31 Stat., 703), 
 applies to retired officers of the Marme Corps, 
 nevertheless, it would not ha^'e the effect of 
 authorizing a retired marine officer to be de- 
 tailed to active duty as commandant of the 
 Marine Corps when the law expressly requires 
 that the commandant shall be selected from 
 officers on the active list of the Marine Corps. 
 (28 Op. Atty. Gen., 486; see below, "Employ- 
 ment of retired marme officers on active duty.") 
 
 At the time the act of March 3, 1883 (22 Stat, 
 553), was enacted, providing for the detail as 
 superuitendent of the State, War, and Navy 
 Building of an officer of the Engineer Corps of 
 the Army or Navy, there was no warrant for the 
 employment on active duty of retired officers 
 of either branch of the service in time of peace, 
 nor does that act profess to give such warrant. 
 Such officers were then exempt from active serv- 
 ice; therefore, this act would not refer to them 
 nor authorize their appointment. Hence, the 
 only conclusion possible is that this appoint- 
 ment was intended to be made from the active 
 list, the onlv engineer officers who were then 
 subject to that duty. (25 Op. Atty. Gen., 508.) 
 
 The question is not as to the duties to which 
 a retired officer may be ordered in general, but 
 is as to the class of officers from which, under 
 the act of 1883, the President must designate 
 this supermtendent. It is unimportant that 
 under the later act a retired officer may be 
 ordered to any active duty, so long as the earlier 
 act requires this particular appointment to be 
 made from the other class. This act of 1883 
 means today just what it meant when enacted. 
 The fact that the later law has made retired 
 officers generally subject to be ordered to any 
 active duty, has not amended or changed the 
 previous law in this case. (25 Op. Atty. Gen., 
 508.) 
 
 Again, the permanent designation of this 
 superintendent is an imperative order to con- 
 
 tinuous duty, and this is quite incomjjatible 
 with the selection of a retired officer, who is 
 generally exempt from such orders. It can not 
 be held that Ihi.sactauthorizcd an appointment, 
 which is an ortler from which such officers were 
 exempt. It is easy to see here that the fact 
 that the duties imposed upon this superintend- 
 ent requhe for then performance an olficer fully 
 qualified for active duty is a sufficient reason 
 why this appointment was required to l)e made 
 from the active list, and not from those who 
 have already passed the period of their full 
 usefulness, and have on that account been 
 retired from active serA-ice. (25 Op. Atty. 
 Gen., 508.) 
 
 For other cases, see notes to section 421, 
 Revised Statutes, "I. Appointment of Chiefs 
 of Bureaus, " and section 1225, Revised Statutes. 
 
 Requiring retired officer to prepare affi- 
 davit is an employment on active duty. — 
 The act of June 7, 1900 (31 Stat., 703), contains 
 no specification as to the character of the duties 
 to which a retired officer may be ordered, except 
 "such as he is able to perform, " and there is no 
 limit as to the time he may be employed, except 
 the life of the act, so that he may be employed 
 in the discretion of the Secretary of the Navy 
 as well for one day as for any longer period, and 
 at his home as well as any other place. Held, 
 that a letter from the Secretary of the Navy, 
 addressed to a retired officer at his home, en- 
 closing a large batch of papers with the follow- 
 ing statement: "It is desired that you will, 
 as soon as practicable, prepare and forward to the 
 Department for transmission to the Secretary of 
 State your affida\it as requested by him in 
 rebuttal of the German case, " and not stating 
 that "this employment on shore duty is re- 
 quired by the public interest, " employed the 
 officer on active duty Avithin the meaning of the 
 act of June 7, 1900, and entitled him to active- 
 duty pay. (10 Comp. Dec, 467.) 
 
 Attending court-martial as witness or 
 accused. — The duty of attending as a witness 
 before a general coint-martial is not one of the 
 duties to which a retired Army officer may be 
 assigned by the Secretary of War in time of 
 peace. But a retired officer, under section 
 1256, Revised Statutc^s [pro\-iding that retired 
 Army officers shall be subject to trial by court- 
 martial] can be ordered before a general court- 
 martial for a breach of the Articles of War, and 
 would be entitled to mileage for travel in obey- 
 mg such order. (10 Comp. Dec, 51, citing 7 
 Comp. Dec, 97.) An order issued in such a 
 case, however, is to be distmguished from an 
 order to attend such a court as a witness. It is 
 a duty enjoined upon him by statute in one case 
 while in the other it is a duty which can only be 
 requhed of him by subpoena as in the case of 
 a civilian witness. (10 Comp. Dec, 51.) 
 
 For other cases, see note to section 850, 
 Revised Stattites. 
 
 Orders to perform active duty after 
 retirement must be specific. — An order of 
 the President placing an officer of the Navy 
 upon the retired list on account of age changes 
 the status of such officer wherever he may be 
 and whatever duty he may be performing, 
 and thereafter he is entitled to retired pay 
 only, unless such status is changed by some 
 subsequent order of the Secretary of the Navy 
 
 658 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1463. 
 
 pursuant to law. It may be that the Secretary 
 of the Navy, under the act of June 7. 1900, 
 might issue a preliminary order in terms 
 assigning an officer to duty after retirement, 
 but such order should be certain in its terms 
 and not given that effect bv strained construc- 
 tion, (terry 2). U. S.. Ct. 01s.. No. 28148, 86 S. 
 and .\. Memo., 644; seealso 17 Comp. Dec, 533.) 
 
 The retirement of an officer for age thereby 
 detaches him from active duty, and unless 
 thereafter assigned to active duty by the Secre- 
 tary of the Navy in accordance with law. he is 
 entitled only to retired pay, notwithstanding 
 that he was retained on active duty by the 
 commanding officer of his vessel. The latter 
 is not authorized to retain in active service an 
 officer who has been retired pursuant to section 
 1444, Revised Statutes, unless it is done in 
 accordance with a decision of the Secretary of 
 the Navy in a particular case. It may be true 
 that in some cases the acts of subordinate offi- 
 cials are taken as the acts of the head of the 
 department to which they belong: where, how- 
 ever, the statute requires the exercise of judg- 
 ment or discretion, as the act of June 7, 1900, 
 the officer in whom such discretion is vested 
 must act for himself, and he can not delegate 
 that power to another. (9 Comp. Dec. 299; 
 compare 9 Comp. Dec, 20, noted under sec 
 1444, R. S.) 
 
 An officer, while under treatment in hospital, 
 was placed on the retu'ed list and ordered to 
 proceed at his convenience to his home: Hdd, 
 that an officer placed on the retired list is en- 
 titled to retii'ed pay only, no matter what his 
 previous status may have been, unless placed 
 on duty by some subsequent order; the above 
 order did not have the effect of placing the 
 officer on duty while traveling to his home. 
 (File 26254-2, Apr. 29. 1908.) 
 
 Detachment from active duty without 
 express orders. — Notice of the dissolution 
 
 of a court-martial on which a retired officer of 
 the Marine Corps was ordered to duty as a mem- 
 ber is sufficient to terminate his assignment to 
 active duty under that order, although no orders 
 were issued expressly detaching him from 
 active dutv. (Comp. Dec. Sep't. 29, 1910. 
 115 S. and A. Memo., 1578; Gibson v. U. S., 47 
 Ct. Cls., 554.) 
 
 A formal order detaching or relieving reth-ed 
 officers from active duty is not necessary; when 
 the duty to which the officer is assigned ends 
 the order assigning him to active dutv expires. 
 (Gibson r. U.'S., 47 Ct. Cls., 554.) 
 
 Leave of absence does not detach from 
 active duty. — A retired officer of the Navy 
 who is gi-anted a leave of absence is not by such 
 gi'ant returned to his former condition as a 
 retired officer, but is in the leave status of an 
 officer on the active list, and he is entitled while 
 on such lea've to the pay j^roAided for officers 
 of the active list on leave of absence. (11 
 Comp. Dec, 376, construing act of June 7, 
 1900.) 
 
 "\Mien, in the discretion of the Secretary of 
 the Navy, the services of a retired officer are no 
 longer required on active duty, his order will 
 relegate such officer to the retired status, but 
 an order granting leave of absence for a specified 
 time does not have that effect. (11 Comp. 
 Dec, 376.) 
 
 Employment of retired Marine ofa.cers 
 on active duty. — The assignment to active 
 duty of retired Marine officers is governed by 
 statutes relating to the Navy. Section 1622, 
 Revised Statutes, does not authorize the assign- 
 ment of Marine officers to active duty in ac- 
 cordance with laws pertaining to the Army. 
 (Jonas j;. U. S., 50 Ct. Cls.. 281; file 27231^7, 
 May 31. 1912; see also sec 1622, R. S.) 
 
 Pay and allowances while employed on 
 active duty. — See laws noted above; and see 
 section 1592, Revised Statutes. 
 
 Sec. 1463. [Assignment of retired officers to command in time of war.] In 
 time of war the President, by and with the advice and consent of the Senate, 
 may detail officers on the retired hst for the command of squadrons and single 
 ships, when he beUeves that the good of the service requires that they shall be 
 so placed in command.— (21 Dec, 1861, c. 1, s. .3, v. 12, p. 329. 3 Mar., 1873, 
 c. 230, s. 1, V. 17, p. 547.) 
 
 in time of peace from the grade of reaJ 
 admiral on the active list, but this shall 
 not be held to amend or repeal sections 
 1434. 1463, and 1464. Re\Tsed Statutes. 
 (Act May 22, 1917, sec 18. 40 Stat., 89.) 
 
 Active duty in general. — See section 1462, 
 Re\'ised' Statutes, and note thereto. 
 
 Assignment of officers on active list to command 
 of squadrons, with rank and title of "flag 
 officer, " was authorized by section 1434, 
 Revised Statutes. 
 
 By act of March 3, 1901 (31 Stat.. 1133), it was 
 provided that the President may formulate 
 appropriate rules governing assignments to 
 command of vessels and squadrons. 
 
 Designation of officers for the command of fleets 
 or subdivisions thereof, with the rank and 
 pay of admiral or vice admiral, shall be 
 made in time of war from the grades of rear 
 admiral or captain ou the active list, and 
 
 Powers of President as Commander in Chief 
 can not be impaired by Congress. — See 
 note to Constitution, Article II, section 2, 
 clause 1. 
 
 President's power with reference to the retired 
 list depends upon laws enacted by Con- 
 gress. — See note to Constitution. Article II, 
 section 2. clause 1, under "I. Powers of 
 Commander in Chief. " 
 
 659 
 
Sec. 1465. 
 
 n. J. REVISED STATUTES. 
 
 The Navy, 
 
 Effect of orders under tliis section. — officer in time of great public emergency. It 
 
 Retired officers can be ordered to active duty wall be observed that retired officers thus called 
 
 in time of war only by the President, by and upon active duty do not return to the active 
 
 with the advice and conseiit of the Senate. list unless under circumstances of a peculiar 
 
 The power of the President with the consent cliaracter. (17 Op. Atty. Gen., 3G, citing sec. 
 
 of the Senate is in reality. althouii;h not in form, 1-1G5. R. S.) 
 a power to give a new commission to a retired 
 
 Sec. 1464. [Commanding officers of squadrons to have rank of '' flag-officer. "'] 
 In making said details the President may select any officer not below the grade 
 of commander and assign him to the command of a squadron, with the rank 
 and title of "flag-officer;" and any officer so assigned shall have the same 
 authority and receive the same obedience from the commanders of ships in his 
 squath'on holding commissions of an older date than his that he would be enti- 
 tled to receive if his commission were the oldest. — (21 Dec, 1861, c. 1, s. 4, v. 
 12, p. 329.) 
 
 See section 1434. Revised Statutes, and note 
 thereto, with reference to officers of the 
 active list assigned to command of squad- 
 rons. 
 
 This section not amended or repealed by act of 
 May 22, 1917, section 18 (40 Stat., 89), noted 
 above, under section 1463, Revised Statutes. 
 
 Sec. 1466. [Restoration of retired officers to active list.] Retired officers 
 so detailed for the command of squadrons and single ships may be restored 
 to the active list, if, upon the recommendation of the President, they shall 
 receive a vote of thanks of Congress for their services and gallantry in action 
 against the enem^', and not otherwdse. — (21 Dec, 1861, c 1, s. 3, v. 12, p. 
 329.) 
 
 Restoration to active list is authorized by 
 special enactment of Congress in individ- 
 ual cases, as for example, act of August 29, 
 1916 (39 Stat., 602). 
 Veto by President of bill to restore retired 
 officers to active list. — See note to Consti- 
 tution, Article I, section 7, clause 2. 
 Vote of thanks, effect of. — See sections 1365, 
 1446, 1508-1510, Re\-ised Statutes, and 
 notes thereto. 
 Restoration of retired oflicer to active 
 list. — See note to section 1457, Revised 
 Statutes, "Correction of erroneous retire- 
 ment"; and note to section 1459, Revised 
 Statutes. 
 
 It may be questioned whether Congress has 
 constitutional power to authorize executive 
 action which should result in setting aside the 
 legal effect of the proceedings of a naval board 
 and in restoring to the active list of the Navy 
 one who had been retired thereunder. The 
 law divides the Navy into two distinct classes, 
 with distinct duties and distinct grades of pay. 
 The retired list was to be fdled from the active 
 list, and an officer once placed upon it was off 
 the active list and not a subject of promotion. 
 The higher grades on the active list were to 
 be constantly supplied by streams of promotion 
 from below, the fountain being at the lowest 
 grade of all and supplied from without. The 
 practical construction put upon the statute by 
 the executive has been that officers are placed 
 upon each of these lists by the action of the 
 President in conjunction with the Senate, the 
 concurrence of the Senate to the appointment 
 of an officer on the retired list being obtained 
 
 by its approval of the nomination of his suc- 
 cessor in his place by name. It may be 
 questioned whether the Congress could, with- 
 out abolishing the office, constitutionally re- 
 move an officer from an office into which he 
 had been legally inducted, and still more 
 whether it could place him in another office 
 without the constitutional action of the Presi- 
 dent. These points not decided. (Thompson 
 V. U. S., 18 Ct. Cls., 604, 612.) 
 
 An officer of the Army who has been retired 
 from active service in accordance with law 
 can not be reinstated in liis former place by an 
 order of the President, though the vacancy 
 caused by his rethement may not have been 
 filled. (13 Op. Atty. Gen., 209, citing 8 Op. 
 Atty. Gen., 223.) 
 
 Army officers who have been retired from 
 active service bv the President under the 
 twelfth section of the act of July 17, 1862, 
 can not be reinstated on the active list except 
 by a new appointment ^vith the advice and 
 consent of the Senate, and where vacancies 
 on the active list exist which may lawfully 
 be filled. (13 Op. Atty. Gen., 99.) 
 
 Section 2 of the act of June 18, 1878 (20 Stat., 
 165), provided that the President may in 
 certain cases, where a prescribed procedure 
 has not been followed in the retirement of an 
 officer not recommended for promotion, " Order 
 and direct the reexamination of the same." 
 It was not intended by this provision to restore 
 the officer to the active list and thereby to 
 repeal the laws limiting the active force of 
 the Navy. If such had been the intention, 
 Congi'ess would have said so. (Thompson v. 
 U. S., 18 Ct. Cls., 604, 615.) 
 
 660 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1465. 
 
 The law which makes retired officers of the 
 Navy ''ineligible to further promotion," in- 
 tends only that they shall cease to be eligible 
 to promotion as a matter of course in the 
 routine of naval usage, and according to rank. 
 It must be so, because their places have been 
 filled, and the statute-aggregate has been at- 
 tained by the promotion of those who remain 
 on the active-service list. It does not follow 
 that they may not be promoted to inde- 
 pendent vacancies. No act of Congress could 
 limit to tliat degree the constitutional power 
 of appointment. The true solution of the 
 problem is to renominate to the Senate, and 
 commission anew such of the officers of the re- 
 served list, if any there be, as it may be deshed 
 to restore to their pre^ious status in the 
 Navy._ (8 Op. Atty. Gen., 223, 236.) 
 
 Retired officers of the Navy may legally be 
 restored to the active list by temporary ap- 
 
 pointment where vacancies exist which may 
 lawfully be filled by temporary appointment 
 in accordance with the act of May 22, 1917 
 (40 Stat., 84). (File 27231-103, July 17, 1917.) 
 Full effect may be given to section 1465, 
 Revised Statutes, by holding that it authorizes 
 the restoration of retii-ed officers to the active 
 list under the circumstances there prescribed 
 without reference to the condition of the active 
 list at the time; that is to say, whetlier or not 
 vacancies exist which might otherwise law- 
 fully be filled. This construction is particu- 
 larly wan-anted by the ruling of the Attorney 
 General that no act of Congress could limit 
 the constitutional power of appointment to the 
 extent of rendering retired officers ineligible 
 for appointment to vacancies existing on the 
 active list. (File 27231-103, July 17, 1917, 
 citing 8 Op. Atty. Gen.. 223, 236.) 
 
 661 
 
CHAPTER FOUR. 
 
 RANK AND PRECEDENCE, PROMOTION AND ADVANCEMENT. 
 
 OP RANK AND PRECEDENCE. 
 Sec. 
 X4()G. Relative rank of Navy and Army officers. 
 
 1467. Rank according to date. 
 
 1468. Commanding officers of vessels and sta- 
 
 tions. 
 
 1469. Aid or executive officer. 
 
 1470. Staff officers, wfien to communicate di- 
 
 rectly ^vitll commanding officers. 
 
 1471. Chiefs of Bureaus. 
 
 1472. Chief of Bureau, when below rank of 
 
 commodore. 
 
 1473. Retired from position of chief of Bureau. 
 
 1474. Medical Corps. 
 
 1475. Sui)ply Corps. 
 
 1476. Engineer Corps. 
 
 1477. Constructors. 
 
 1478. Ci\'il engineers. 
 
 1479. Chaplains. 
 
 1480. Professors of mathematics. Promotions 
 
 in staff corps. 
 
 1481. When retired for age or length of service. 
 
 1482. Retired for causes incident to ser\dce. 
 
 1483. Graduates of Naval Academy. 
 
 1484. Engineers graduated at Naval Academy. 
 
 1485. Precedence by length of service. 
 
 1486. Length of service, how estimated. 
 
 1487. Quarters. 
 
 1488. Military command. 
 
 1489. Processions, boards, &c. 
 
 1490. Ensigns as steerage officers. 
 
 1491. Warrant officers. 
 
 1492. Coast Guard officers serving as part of the 
 
 Navy. 
 
 OF PROMOTION AND ADVANCEMENT. 
 
 1493. Physical examination. 
 
 1494. Physical disqualification by woimds. 
 
 1495. Examinations, when, and effect of. 
 
 1496. Mental, moral, and professional examina- 
 
 tion. 
 
 1497. Promotion to rear-admiral in time of 
 
 peace. 
 
 1498. Examining board. 
 
 1499. Powers of. 
 
 1500. Officers may be present and make state- 
 
 ment. 
 
 1501. Record. 
 
 1502. Re^dsion by the President. 
 
 1503. No officer to be rejected without examina- 
 
 tion. 
 
 1504. Report of recommendation. 
 
 1505. Failing in examination. 
 
 1506. Advancement in number. 
 
 1507. Promotion when grade is full. 
 
 1508. Officers receiving thanks of Congress. 
 
 1509. Effect of vote of^thanks. 
 
 1510. Vacancies occasioned by deaths, &c., of 
 
 officers thanked. 
 
 Sec. 1466. [Relative rank of Navy and Army officers.] The relative rank 
 between officers of the Navy, whether on the active or retired list, and officers 
 of the Army, shall be as follows, lineal rank only being considered • 
 
 The Vice- Admiral shall rank with the Lieutenant-General. 
 
 Rear-admirals with major-generals. 
 
 Commodores with brigadier-generals. 
 
 Captains with colonels. 
 
 Commanders with lieutenant-colonels. 
 
 Lieutenant-commanders with majors. 
 
 Lieutenants with captains. 
 
 Masters with first lieutenants. 
 
 Ensigns with second lieutenants. — (16 July, 1862, c. 183, s. 13, v. 12, p. 585. 
 21 Dec, 1864, c. 6, s. 1, v. 13, p. 420. 25 July, 1866, c. 231. s. 1, v. 14, p. 222. 
 2 Mar., 1867, c. 174, s. 1, v. 14, pp. 515, 516.) 
 
 As to grades of admiral, Aice admiral, and com- 
 modore, see notes to section 1362, Re\ised 
 Statutes. 
 
 As to change in designation of "masters" to 
 "lieutenants (junior grade)," see note to 
 section 1362, Ile\'ised Statutes. 
 
 By act of October 6, 1917, section 3 (40 Stat., 
 410), the President was authorized for the 
 period of the existing emergency only to 
 appoint as generals the Chief of Staff and 
 
 the commander of the United States forces 
 in France; and as lieutenant generals each 
 commander of an Army or Army Corps 
 organized as authorized by existing law. 
 By act of October 6, 1917, sections_3 (40 Stat., 
 411), it was provided that "brigadier gen- 
 erals of the Army shall hereafter rank rel- 
 atively with rear admirals of the lower half 
 of the grade." 
 
 662 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1466. 
 
 Admiral of the Navy ranks vidth General 
 in the Army. — This section provides for rela- 
 tive rank between officers of the Na\'y and 
 officers of the Army, from the \'ice admiral, who 
 ranks with the lieutenant general of the Army, 
 to ensigns, the lowest commissioned officers of 
 the Naw, who rank with second lieutenants in 
 the Army; but no such relative rank was pro- 
 vided for the Admiral of the Navy. The grade 
 of Admiral in the Na\'y is the gi'ade next above 
 that of \'ice admiral, and the next grade in the 
 Army above that of lieutenant general, with 
 which the grade of Aice admiral corresponds in 
 rank, was that of General of the Army. The 
 latter grade ceased to exist August 5, 1888, by 
 the death of Gen. Philip H. Sheridan, the then 
 incumbent, and has not since been re\-ived. 
 [But see act of Oct. 6, 1917, noted above.] Al- 
 though the law does not specify any grade in 
 the Army with which the grade of Admiral is 
 to be ranked, the x'easonable intent of section 
 13 of the Na\"V' personnel act approved March 
 3, 1899 (30 Stat., 1007), pro\iding that, subject 
 to certain exceptions, the commissioned officers 
 of the Navy should receiA'e the same pay and 
 allowances as officers of corresponding rank in 
 the Army, was that the grade of Admiral should 
 be regarded as corresponding in rank with the 
 grade of General as the latter grade formerly 
 existed, and that the Admiral of the NaAy 
 should receive the same pay and allowances 
 which the General of the Armv formerly re- 
 ceived. (6 Gomp. Dec, 868.) 
 
 By NaA-y Regulations, 1913 (Art. R 1010); 
 it was pro^'ided that "Admiral shall rank with 
 General." 
 
 By a resolution of the Continental Congress 
 November 15, 1776, it was pro\-ided "That the 
 rank of the naval officers be, to the rank of 
 ofiicers in the land ser\-ice, as follows: 
 
 "Admiral, as a general. 
 
 "Vice admiral, as a lieutenant general. 
 
 "Rear admiral, as a major general. 
 
 "Commodore, as a brigadier general. 
 
 "Captain of a ship of 40 guns and upwards, 
 as a colonel. 
 
 "Captain of a ship of 20 to 40 guns, as a 
 lieutenant colonel. 
 
 "Captain of a ship of 10 to 20 guns, as a 
 major. 
 
 "Lieutenant in the Navy, as a captain." 
 
 Aid to Admiral of the Navy does not 
 rank with aid to General in the Army. — 
 A lieutenant (junior grade) in the Navy serv- 
 ing as aid to the Admiral of the Nav>' is entitled 
 only to the pay of his rank, which con-esponds 
 to that of a first lieutenant in the Army. The 
 fact that by law (sec. 1096, R. S.) aids on the 
 staff of the General of the Army were entitled 
 to the rank of colonel of Cavalry "does not entitle 
 an officer of the Navy to the rank of captain in 
 the Na\y, corresponding to that of colonel in 
 the Army, while serving as aid to the Admiral 
 of the Navy. By section 1096 a lieutenant or 
 captain selected as aid by the General of the 
 Army had conferred uponhim while serving as 
 such aid the rank of colonel of Cavalry, and by 
 section 1261 he was entitled to the pav of a 
 colonel. In 16 Op. Atty. Gen., 551, it was held 
 that the rank conferred by section 1096 entitled 
 such aids tothe precedence, when serving upon 
 courts-martial, courts of inquiry, military 
 
 boards, and the like, to which the same rank 
 would entitle an officer of the line of staff (inde- 
 pendent of the office of aid) when thus serving. 
 There is no statute or regulation which confers 
 upon an officer of the Navy, while serving as aid 
 to the Admiral, any different rank from that 
 which he held while not so serving. To allow 
 him the pay of a colonel while so serving would 
 be to assiune that his rank was changed from 
 that of a lieutenant (junior grade) to that of a 
 captain in the Navy. Accordingly, held that 
 such officer can not be allowed any pay in 
 addition to the pay of the office and rank of 
 lieutenant (junior grade) which he held while 
 ser^ing as aid to the Admiral. (11 Comp. Dec, 
 733; see also 21 Comp. Dec, 840, as to officer 
 serving as aid to a rear admiral temporarily 
 holding the rank of admiral as commander in 
 chief of a fleet.) 
 
 While section 1094, Re\ised Statutes, pro- 
 \ided that the Army of the United States 
 should consist, among other ofhcers, of "one 
 General," said section concluded with the 
 following: "Provided, That when a vacancy 
 occurs in the office of General or lieutenant 
 general such office shall cease, and all enact- 
 ments creating or regulating such offices shall , 
 respectively, be held to be repealed." Upon 
 a vacancy occumng in the office of General 
 under this pro\iso that office ceased to exist 
 and section 1096, Revised Statutes, pro\id- 
 ing for aids to the General of the Army, who 
 should have while so ser\ing the rank of colonel 
 of cavalry, Avas therebj' repealed. Even 
 concedins: that section 1096 was re\ived as the 
 result of the act of June 1, 1888 (25 Stat., 165), 
 by A-irtue of which I>ieut. Gen. Sheridan 
 was made for life the General of the Army, 
 said section did not remain in force after the 
 death of Gen. Sheridan, since which time there 
 is no officer of the Army to which pay of aids 
 to the Admiral of the Navy can be assimilated 
 under section 13 of the Navv personnel act of 
 March 3, 1899 (30 Stat., 1007). (Wood i-. U. S., 
 224 U. S., 132, aflirming 44 Ct. Cls., 611.) 
 
 Grade of commodore abolished on the 
 active list. — Section 7 of the Navv personnel 
 act of March 3, 1899 (30 Stat., 1005), in effect 
 abolishes the rank of commodore, at least so far 
 as respects the active list of the line of the 
 NaAy, and lifts those in that rank to that of rear 
 admiral. Prior to the act of 1899 the cor- 
 responding ranks of officers of the Navy and the 
 Army were rear admiral and major general, 
 commodore and brigadier general, captain and 
 colonel. By that act the rank of commodore 
 was abolished, although that of brigadier 
 general was undisturbed. No change was 
 made in the relative rank of captain and colonel 
 or of rear admiral and major general, but the 
 legislation left one rank in the Army to which 
 there was no corresponding rank in the Na\y. 
 The statute in effect lifted the rank in the 
 Navy, which was corresponding to that of 
 brigadier general in the Army, to that of rear 
 admiral, corresponding with that of major 
 general in the Army. The individuals thus 
 raised in rank were not so raised on account of 
 distinguished serAices or for any personal 
 reason, but simply in consequence of the 
 abolishing of the official rank they had held. 
 (Rodgers^i;. U. S., 185 U. S., 83.) 
 
 G63 
 
Sec. 1466. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy, 
 
 In the case of Rodgers v. United States (185 
 U. S., 83), it was stated with reference to the 
 act of March 3, J8!)9: "The statute in effect 
 lifted the rank in the Na\'y, which was cor- 
 responding: to that of brigadier general in the 
 Army, totliat of rear admiral and corresponding 
 with that of major treneral in the Army." 
 The Supreme Court m the above quotation 
 was speaking of the acti-s-e list of the Na^^. 
 (File 3980-1402, Oct. 31, 1917.) 
 
 The grade of commodore was omitted from 
 the active list bv the Na^y personnel act of 
 March 3, 1899, section 7 (30 Stat., 1005). That 
 act, however, while thus abolishing the grade 
 of commodore on the active list, did not thereby 
 affect the rank of ollicers then on the retired 
 list having the rank of commodore, and it con- 
 tained several pro^isions for the future retire- 
 ment of officers with that rank under certain 
 prescribed conditions, \\z, by section 7 of said 
 act it was provided ""that nothing contained 
 in this section shall be construed to prevent 
 the retirement of officers who now have the 
 rank or relati^•e rank of commodore with the 
 rank and pay of that grade:" by section 8 
 (30 Stat., 1006) it was provided that officers 
 retired on their own applications for the pur- 
 pose of creating a prescribed minimum of annual 
 vacancies should be placed on the retired list 
 with the rank and retired pay of the ''next 
 higher grade, as now existing, including the 
 grade of commodore;" by section 9 (30 Stat., 
 1006), it was pro\dded tliat officers retired by 
 selection for the purpose of creating a pre- 
 scribed minimum of annual vacancies should 
 be placed on the retired list with the rank and 
 retired pay of the "next higher grade, in- 
 cluding the grade of commodore, which is re- 
 tained on the retired list for this purpose." 
 None of these pro\'isions for retirement with 
 the rank of commodore is now in force. Under 
 section 1481, Revised Statutes, certain staff 
 officers are retired with the rank of commodore, 
 this being the only case in which any officers 
 are now placed on the retired list with that 
 rank, retirements under section 1473, Revised 
 Statutes, being made in practice with the 
 rank of rear admiral instead of commodore 
 as was pro^■ided therein. The naval appropria- 
 tion act of May 13, 1908 (35 Stat., 127), which 
 established new rates of pay for the Na^'y, 
 provided that "hereafter all commissioned 
 officers of the active list of the NaAy shall re- 
 ceive the same pay and allowances accord- 
 ing to rank and length of service, and the annual 
 pay of each grade shall be as follows: * * * 
 rear admiral, second nine, or commodore, six 
 thousand dollars." There were no commo- 
 dores on the actire list at the time of the en- 
 actment last cited, but there were then and are 
 now a number of officers on the retired list 
 with the rank of commodore, and, as above 
 stated, retirements are still being made with 
 that rank under section 1481, Revised Statutes. 
 The rank of commodore has continued to be 
 assimilated with that of brigadier general bv the 
 NaA-y Regulations (Art. R 1010, 1913), notwith- 
 standing the expression of the Supreme Court 
 in the Rodgers case that the legislation of March 
 3, 1899, "left one rank in the Army to which 
 there was no corresponding rank in the Navy." 
 Inasmuch as section 1466 proAides that the 
 
 "relative rank between officers of the Navy, 
 whether on the acti\e or retired list, and officers 
 of the Army," shall be as specified therein, 
 the NaA-y Regulations have been correct in 
 continuing to show the rank of commodore as 
 assimilated with that of brigadier general 
 (File 3980-1402, Oct. 31, 1917.) 
 
 Section 7 of the Navy personnel act of 
 March 3, 1899 (30 Stat., 1005), eliminated the 
 rank or grade of commodore from the active 
 list of the Navy. (11 Comp. Dec, 547.) 
 
 The commodores on the active list and the 
 rear admirals of the Navy were amalgamated 
 on account of international relationships the 
 consideration of which caused the Navy De- 
 partment to regard the complicatons confront- 
 ing it as inimical to the honor and dignity of 
 this Nation because of the adverse effect upon 
 its high ranking representatives in their asso- 
 ciation with foreign officers. (File 3980- 
 1402:3, Mar. 4, 1918.) 
 
 T-wo grades of rear admirals for pay 
 purposes. — Rear admirals were divided into 
 two grades for pay purposes by section 7 of the 
 Navy personnel act of March 3, 1899 (30 Stat., 
 1005), rear admirals of the "nine lower num- 
 bers " being given the pay and allowances of 
 brigadier generals of the Army, while rear 
 admirals of the upper nine numbers were not 
 specifically proAnded for, but under the general 
 proAdsions contained in section 13 of the same 
 act they received the same pay and allowances 
 as officers of the corresponding rank in the Army, 
 viz, major general, that being the rank corre- 
 sponding to the rank of rear admiral according 
 to section 1466. This diA-i-sion of rear admirals 
 into two grades for pay purposes was continued 
 in effectby the act of May 13, 1908 (35 Stat., 
 127), which pro^nded different rates of pay for 
 "rear admirals, first nine," and "rear admirals, 
 second nine"; also by the act of August 29. 
 1916 (39 Stat., 577), which provided that "here- 
 after pay and allowances of officers in the upper 
 half of the grade or rank of rear admiral, includ- 
 ing the staff corps and including staff officers 
 heretofore permanently commissioned with the 
 rank of rear admiral, shall be that now allowed 
 by law for the first nine rear admirals, and the 
 pay and allowances of officers in the lower half 
 of the grade or rank of rear admiral, including 
 the staff corps, shall be that now allowed by law 
 for the second nine rear admirals." (File 
 3980-1402, Oct. 31, 1917.) 
 
 The pro\dsion fixing the pay of the rear 
 admirals of the lower half of that grade to 
 correspond Avith the pay of a brigadier general 
 arose from the fact that the relative rank of 
 officers of the Army and NaA-y had been so ad- 
 justed by statute as to rank commodores with 
 brigadier generals, and the rank of commodore 
 being dropped from the service by said Navy 
 personnel act of March 3, 1899, section 7, the 
 pay of a bngadier general was given to the nine 
 lower numbers of rear admirals, who would 
 otherwise have had the rank of commodore 
 with the corresponding pay of brigadier gen- 
 erals. (Gibson v. U. S., 194 U. S., 182.) 
 
 Is it unreasonable to suppose that Congress 
 thought it unwise to give to those officers (who 
 had neither by length of ser\ace or by personal 
 distinction become entitled to the position of 
 rear admiral as it had stood in the past) all the 
 
 664 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1466. 
 
 benefits of such position? Would it be un- 
 natural for Congress to bear in mind those who 
 by length of service or by personal distinction 
 had already earned that position, and provide 
 that in at least the matter of pay there should 
 be some recognition of the fact? Again, is it 
 unreasonable to believe that Congress intended 
 that those officers whose past services placed 
 them according to their pnor relative rank side 
 by side with brigadier generals of the Army 
 should not by a mere change of statute be given 
 a benefit in salary which was not at the same 
 time accorded to brigadier generals in the 
 Army? May not this explain its action in so 
 dividing the rear admirals into two classes, one 
 composed substantially of former rear admirals, 
 equal both in rank and pay with major generals 
 in the Army, and the other of those who in the 
 past were only commodores, to whom was 
 given the rank of rear admirals but the pay of 
 brigadier generals in the Army? (Rodgers v. 
 U. S., 185 U. S., 83.) 
 
 Rear admirals being divided into two classes 
 for the purpose of pay, and there being no ques- 
 tion that had plaintiff been promoted in the 
 active service from captain to rear admiral he 
 would have passed into the lower grade of rear 
 admirals, so far at least as his pay was concerned, 
 and would have received so long as within that 
 niunber the pay of a brigadier general, not- 
 withstanding that for all other purposes he was 
 entitled to the rank and privileges of a rear 
 admiral, held that the advancement of plaintiff 
 on the retired list in accordance with section 11 
 of the Navy personnel act of March 3, 1899 (30 
 Stat., 1007), to receive "the rank and three- 
 fourths the sea pay of the next higher grade," 
 entitled him to the pay of the next higher rank, 
 and but for the difference made in the pay of 
 rear admirals would entitle him to three-fourths 
 the full pay of that rank, but taking one step 
 upward for the purpose of pay he passes into 
 and not over the next pay grade, which is that 
 of the nine lower numbers. (Gibson v. U. S., 
 194 U. S., 182.) 
 
 All rear adtairals rank with raajor 
 generals.^Rear admirals of the lower half, 
 except for purposes of their own pay and allow- 
 ances, are rear admirals with the relative rank, 
 under section 1466, Revised Statutes, of major 
 generals in the Army; and their aids are entitled 
 under section 1261, Revised Statutes, to the addi- 
 tional pay provided by law for aids to major 
 generals in the Army, and not merely to the^ddi- 
 tional pay provided for aids to brigadier generals 
 in the Array. It will be noted that the proviso 
 to section 7 of the Navy personnel act of March 
 3, 1899 (30 Stat., 1005), does not specify that a 
 rear admiral of the lower half shall have the 
 relative ran^and pay of a brigadier general, but 
 merely that he shall receive the same pay and 
 allowances. This proviso does not affect the 
 rank given them. If Congress had intended 
 to assimilate their rank as well as pay and 
 allowances to that of a brigadier general it 
 might easilv have said so. (11 Comp. Dec, 
 547.) 
 
 It is established that while there are two 
 diWsions in the grade of rear admiral for pay 
 purposes, nevertheless all officers in that grade 
 for all other purposes are entitled to the same 
 
 rank and privileges. (File 3980-1402, Oct. 31, 
 1917.) 
 
 The rank of all rear admirals is assimilated 
 by section 1466 to that of major generals in the 
 Army. (6 Comp. Dec, 960.) 
 
 A rear admiral whether on the active or 
 retired list corresponds in rank with a major 
 general in the Army. Accordingly held that a 
 retired officer on active duty as aid to a retired 
 rear admiral employed on active duty is entitled 
 to the additional pay pro\'ided by law for aids 
 to major generals in the Arm v. (14 Comp. 
 Dec, 471.) 
 
 Temporary assignment to rank of rear 
 admiral. — The assignment of a captain of the 
 Navy to duty in command of a squadron with 
 the rank and title of rear admiral, by authority 
 of section 1434, Revised Statutes, does not make 
 him a rear admiral within the meaning of the 
 act of May 13, 1908 (35 Stat., 128), providing 
 additional pay for aids to rear admirals. (17 
 Comp. Dec, 54; see also note to sec. 14.34, R. S.) 
 
 Relative rank of brigadier generals and 
 rear admirals of the lower half. — The act 
 of October 6, 1917, section 3 (40 Stat., 411), 
 provides that "brigadier generals of the Army 
 shall hereafter rank relatively with rear ad- 
 mirals of the lower half of the grade." This is 
 materially different from stating, conversely, 
 that "rear admirals of the lower half of the 
 grade shall hereafter rank relatively with brig- 
 adier generals of the Army." If, for example, 
 the pay of rear admirals of the lower half had 
 been in the past higher than that allowed 
 brigadier generals in the Army, and tho act of 
 October 6, 1917, had provided that brigadier 
 generals should thereafter receive the same pay 
 as rear admirals of the lower half, it is apparent 
 that this would have resulted in increasing 
 the pay of brigadier generals to that provided 
 for rear admirals of the lower half; whereas, had 
 it been provided iinder the same circumstances 
 that rear admirals of the lower half should there- 
 after receive the same pay as brigadier generals 
 of the Army, this would have resulted in reduc- 
 ing the pay of rear admirals of the lower half 
 to that fixed for brigadier generals. The same 
 distinction exists with reference to the rank 
 of the officers concerned. In the past the rank 
 of rear admirals of the lower half has been 
 higher than that of brigadier generals, viz, it 
 has been the same in all respects as that of ma- 
 jor generals. Under these circumstances Con- 
 gress did not provide that hereafter the rank of 
 rear admirals of the lower half shall be the same 
 as that of brigadier generals, which wouid have 
 resulted in reducing the rank previously enjoyed 
 by such rear admirals, but on the contrary it pro- 
 vided that hereafter the rank of brigadier gen- 
 erals shall be the same as that of rear admirals of 
 the lower half, thereby elevating the rank of 
 brigadier generals while leaA'ing the rank of 
 rear admirals of the lower half the same as it 
 previously had been. In other words, rear 
 admirals of the lower half continue by law to 
 rank with major generals in the Army, the only 
 change being that now brigadier generals of 
 the Army rank with rear admirals of the lower 
 half. Unless this were so, rear admirals of the 
 lower half who prior to the act of October 6, 
 1917, ranked ahead of all major generals of a 
 later date of commission would now be required 
 
 665 
 
Sec. 1466. 
 
 /'/. ?. REVISED STATUTES. 
 
 The Navy. 
 
 to take rank behind all major generals, includ- 
 ing those of a later date of connmssion whom 
 they had previously outranked. This would 
 amount to nothing more nor less than a reduc- 
 tion in the rank of rear admirals of tlie lower 
 half, and that without any corresponding ad- 
 vantage to brigadier generals for whose benefit 
 the amenilment of October (i, 1917, was enacted. 
 (File 3980-1402, Oct. 31, 1917.) 
 
 Secticn 14()() provides that commodores, 
 whetlier on the active or retired list, shall rank 
 with l>rigadier generals. If the rank of luiga- 
 diergenerals is "elevated, as it has been by the 
 act of October 0, 1917, the necessary conse- 
 quence is to elevate correspondingly the rank 
 of commodores, just as any increase in the pay 
 of In'igadier generals must have resulted in 
 automatically increasing the pay of commodores 
 if the pay of the latter, instead of their rank, 
 had been assimilated to that of Ijrigadier gen- 
 erals. In other words, commodores have 
 ranked with brigadier generals in accordance 
 with explicit statutory enactment, and must 
 continue so to rank unless and until otherwise 
 provided by Congress. It follows that under 
 the law commodores rank with brigadier gen- 
 erals, brigadier generals rank with rear admirals 
 of the lower half, and rear admirals of the lower 
 half rank with major generals. Had tliis ]:)een 
 a question of pay instead of rank there would 
 be no difficulty in giAdng the law full force and 
 effect. That is, had it been been pro^ided 
 that commodores should have the same pay as 
 brigadier generals, brigadier generals the same 
 pay as rear admirals of the lower half, and rear 
 admirals of the lower half the same pay as major 
 generals, it is evident that the pay of all four 
 grades would have been identical. However, 
 in the matter of rank insurmountable obstacles 
 exist to giving effect to this legislation as thus 
 construed. The case is the same as though it 
 were stated that major generals, rear admirals 
 of the lower half, brigadier generals, and com- 
 modores are all on precisely the same footing in 
 relation to rank with its resulting precedence; 
 and inasmuch as the precedence of officers of 
 the same or corresponding rank is determined, 
 in the absence of statutory pro\-ision to the 
 contrary, by date of commission, it would fol- 
 low that commodores must take precedence 
 ahead of all the others when the commissions of 
 the commodores are of an earlier date than those 
 of officers in the other grades mentioned. From 
 a practical point of view it would be an im- 
 possible situation to have commodores as a class 
 preceding major generals of a later date of com- 
 mission. If the law could be construed so that 
 nothing contained therein should operate to 
 give any officer of a lower grade precedence of 
 an officer of a liigher grade, one impossible 
 situation would merely be substituted for 
 another, as in that event we would have a 
 l)rigadier general preceding rear admii-als of a 
 later date of commission, while the rear ad- 
 mirals in turn would precede major generals 
 of a later date of commission, while the major 
 generals in turn would precede the brigadier 
 general because holding a higher grade. (File 
 39S0-1402, Oct. 31, 1917.) 
 
 The situation created by the act of October 6, 
 1917, can be corrected only l)y legislation. 
 Under the present law it is indisputable that 
 
 major generals and brigadier generals both take 
 rank and jirecedence with rear admirals; and 
 that commodores take rank and precedence 
 with brigadier generals. Major generals and 
 brigadier generals must be treated as but one 
 grade for purposes of precedence with rear 
 admirals; while at the same time as l^etween 
 themsehes they must be treated as oflicers of 
 separate and distinct grades, different in de- 
 gree. This creates two conflicting rules for 
 determining the precedence of officers who 
 may be associated together at the same time 
 and place. Two grades in the Army or Marine 
 Corps can not be made ec[ual to one grade in the 
 Navy without at the same time making them 
 equal to each other. The difficulty is more 
 pronounced in the Navy than in the Army, 
 because of the fact that the Marine Corps is 
 normally a part of the Navy, its officers serving 
 halutuaily on courts and boards with other 
 officers in the naval ser\ice. In other words 
 there are under the jurisdiction of the Navy 
 Department officers ha\ing all of the ranks 
 involved, namely, rear admiral, major general, 
 brigadier general, and commodore; while under 
 the War f)epartment the only gi-ades involved 
 are major general and brigadier general; so 
 that the War Department can never have juris- 
 diction of the entire ([uestion. In the case of 
 a commodore being associated on duty with a 
 rear admiral of the Navy and a brigadier gen- 
 eral ot the Marine Corps, it would follow that 
 by date of commission the commodore would 
 most likely rank ahead of the brigadier general 
 who, in turn, might be entitled to precedence 
 ahead of the rear admiral, whom the commodore 
 could not precede. (File 3980-1402:4, Feb. 
 19, 191S.) 
 
 The act of October 6, 1917,. can not be given 
 effect fully by construction not extending to 
 executive legislation. Administrative officers 
 can not make law but must take the law as it 
 stands. If the law as made by Congress is de- 
 fective either in what it contains or what it 
 omits, the remedy can be furnished only by 
 Congress. In the present case the legislative 
 intent is too plain for discu.ssion that lirigadier 
 generals should be elevated in rank to the level 
 of rear admirals of the lower half, and not that 
 the latter should be reduced. This can not be 
 an accomplished fact so long as rear admirals 
 continue by law to rank with major generals, 
 and commodores continue by law to rank with 
 brigadier generals. If there were any warrant 
 for tlie executive by regulations to make com- 
 modores rank after brigadier generals, instead 
 of with brigadier generals as provided by 
 statute, and make rear admirals of the lovyer 
 half rank after major generals instead of with 
 major generals as provided by statute, a solu- 
 tion would thereby be reached; but where the 
 rank of these oflicers has been definitely fixed 
 by explicit legislation, the executive can no 
 more change the rank to wiiich they are thus 
 entitled than it could change their pay as 
 fixed by statute. (File 3980-1402, Oct. 31, 
 1917.) 
 
 The War Department is in complete agree- 
 ment with the Secretary of the^ Navy that the 
 law upon this subject (Act of Oct. G, 1917) 
 should be repealed, and has accordingly rec- 
 ommended such repeal to the Senate and House 
 
 666 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1466. 
 
 mjlitarv committees. (File 3980-1402 : 7, Apr. 
 10, 1918.) A bill for this purpose (H. R. 12512) 
 was introduced in the House of Representa- 
 tives on June 19, 1918, and referred to the Com- 
 mittee on Military Affairs. (File 3980-1402 : 
 8, Auff. 1, 1918.) 
 
 Midshipmen not included by this sec- 
 tion. — Section 1466 provides for relative rank 
 between officers of the Navy and officers of the 
 Army, but no such relative rank is given to ca- 
 dets (now midshipmen). Although officers of 
 the Navy, naval cadets (midshipmen) do not 
 correspond in rank with any officer of the Army, 
 and therefore are not entitled to the allowance 
 of mileage for travel on shore duty aliroad. (7 
 Comp. Dec, 2.) 
 
 Professors at Naval Academy do not 
 rank with professors at Military Acad- 
 emy. — A line officer of the Navy of the rank of 
 lieutenant commander corresponds in rank to a 
 major in the Army; his detail to duty as head 
 of the department of modern languages of the 
 United States Naval Academy does not en- 
 title him to the rank of commander, corres- 
 ponding to lieutenant colonel in the Army, be- 
 cause under the law certain professors at the 
 Military Academy are entitled to the rank and 
 pay of lieutenant colonel. The position of pro- 
 fessor at the Military Academy is an office sepa- 
 rate and distinct fi'om any other office in the 
 Army, the incumbent of which is appointed by 
 the President and not detailed from the officers 
 of the Army. There is no law entitling a naval 
 officer, by virtue of his assignment, to the rank 
 or pay of a professor either at the Naval Acad- 
 emy or Military Academy; nor any law pro\id- 
 ing that an Army officer may be detailed to per- 
 form the duties of a professor at the Military 
 Academy and thereby become entitled to the 
 rank and pay of a professor at that institution. 
 (11 Comp. Dec, 591.) 
 
 Staff oflScers included by this section. — ■ 
 Section 1466 fixes the relative rank of officers of 
 the Army and officers of the Navy. This sec- 
 tion is general, with no exception or limitation, 
 and therefore it applies equally to all officers of 
 the Navy of the grades there mentioned, 
 whether of the line or staff. That section con- 
 tains the clause, "'lineal rank only ))eing con- 
 sidered," but that simply means that it is not 
 necessary to specify and "fix relative staff rank, 
 since staff officers in both services possess assim- 
 ilated lineal rank. (26 Op. Atty. Gen., 16.) 
 
 As staff officers are, equally \\-ith those of the 
 line, '"officersof the Navy," as stated in section 
 1466, the provisions of that section apply as well 
 to them as to officers of the line, and thus defines 
 the rank in both branches of the naval service. 
 And since the Navy personnel act has elimi- 
 nated the word "relative" in this connection, 
 this is their actual rank. This merely defines 
 the rank of these officers, by making the rank 
 of a captain the same as that of a colonel, and 
 so on. _ (26 Op. Atty, Gen., 496, 499.) 
 
 Section 1466, Revised Statutes, assimilates in 
 rank lieutenants in the Navy with captains in 
 the Army. Under the Navy personnel act of 
 March 3, 1899 (30 Stat., 1007), and section 1466, 
 Re\"ised Statutes, passed assistant surgeons of 
 the Navy, as well as assistant surgeons, rank 
 with captains in the Army. (U. S. v. Faren- 
 holt, 206U. S., 226.) 
 
 Oflficers of the Marine Corps and line 
 oflScers of the Navy. — By section 1603, 
 Revised Statutes, officers of the Marine Corps 
 are in relation to rank on the same footing as 
 officers of similar grades in the Army. Accord- 
 ingly, they take precedence with line officers 
 in the Navy according to grade; and if of similar 
 grade, then according to date of commission. 
 (■2r> Op. Atty. Gen., 517.) 
 
 Officers of the Marine Corps and staff 
 officers of the Navy. — Staff officers of the 
 Navy take precedence with officers of the Army 
 of corresponding rank according to date of com- 
 mission. Accordingly, officers of the Marine 
 Corps, who by section 1603, Revised Statutes, 
 are in relation to rank on the same footing as 
 officers of similar grades in the Army, take pre- 
 cedence with officers of the staff corps of the 
 Navy of corresponding rank according to dates 
 of commission; and the Navy Department 
 would not have the authority, with the approval 
 of the President, to amend the Navy Regula- 
 tions so as to do away with the practice as to the 
 relative rank of officers of the Marine Corps and 
 line officers of the Navy established in accord- 
 ance ^vith the Attorney General's opinion of 
 October 7, 1905 i25 Op. Atty. Gen., 517). y26 
 Op. Atty. Gen., 16.) 
 
 Relative rank when of same or corre- 
 sponding grade. — Section 1466 fixes the rela- 
 tive rank by grades only of line officers of the 
 Navy and of the Army. But this merely tells 
 what grades in each service, designated by their 
 titles, shall be of corresponding or equal right 
 and dignity, and does not fix the relative rank 
 of these officers when of the same or correspond- 
 ing grades. This is left undetermined , so far as 
 express statute or regulation is concerned . But 
 the unwritten law of the Army and Navy — a 
 rule of action governing in both branches of the 
 service — derived from long established and uni- 
 form practice, has settled tliis. From the earli- 
 est days of the Army and Navy it has been the 
 rule and practice that officers in the same grade 
 in the Army and Navy have relative rank and 
 precedence between themselves according to 
 the dates, respectively, of their commissions; 
 the senior in commission ranking the junior. 
 The same rule applies in such cases as that 
 which governs officers of the Army and officers 
 of the Nav>' as between themselves in each case, 
 namely, that seniority in commission or appoint- 
 ment gives precedence in the same grade. 
 This has become a well-understood rule of action 
 and practice, which, in fact, governs and con- 
 trols officers of the Army and Navy with the 
 same force and precision as if embodied in 
 statute or regulation. (25 Op. Atty. Gen., 517; 
 see also. 26 Op. Attv. Gen., 16, and 29 Op. Atty. 
 Gen., 264.) 
 
 In so far as the precedence of officers of the 
 same rank is not regulated by statute, the Secre- 
 tary of the Navy may determine same with the 
 force and effect of law, by virtue of his general 
 authority under the President to make rules 
 and regulations for the government of the Navy. 
 Usually this, of course, is better done by general 
 rules than by decisions in particular cases, but 
 it may be done either way. It would seem that, 
 according to the preference given throughout 
 the statutes and by the rules and practice of the 
 War and Navy Departments to seniority of 
 
 54641°— 22 43 
 
 6G7 
 
Sec. 1467. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Bendce. the longer service of an officer would, 
 otlier tliinfP' lieins: ec]ual. give him precedence 
 in rank with reference to another olHcer pro- 
 moted to corresponding rank from the same 
 date. (2:U)p. Atty. Oon., 156.) 
 
 Relative rank when of same or corre- 
 sponding grade and same date of commis- 
 sion. — "In fixing the relative rank of ollicers 
 of the Army, officers of tlie Naw, and officers of 
 the >rarine Corps, of the same grade and date of 
 appnintment and commission, the time which 
 each may have actually served as a commis- 
 sioned officer of the United States, whether con- 
 tinuously or at different periods, shall be taken 
 into account." (Art. R 1010 (2), Navy Regs., 
 1913; see also sec. 1219, R. S., relating to the 
 Army.) 
 
 This rule for determining precedence between 
 officers of the same grade and date is statutoiy 
 in the Army, and the rule so prescribed by 
 statute for the Army is extended to the Navy by 
 the foregoing regulation. Such a regulation for 
 the Navy is almost a necessity in view of the 
 law governing the Army, as should a different 
 rule be prescribed for the Navy than that which 
 governs by law in the Army, such rules would 
 necessarily conflict where officers of the Army 
 and Navy serve or associate together, and it 
 would be impossible to fix theii" relative pre- 
 cedence except by the adoption of the same 
 rule to govern all. Nevertheless no statute 
 limits the Secretaiy of the Navy in fixing the 
 precedence of such officers of the Navy as be- 
 tween themselves, where they are of the same 
 gi'ade and date of rank, and therefore the regula- 
 tion above quoted might by authority of the 
 Secretary be departed from and some different 
 rule of precedence adopted. (File 11130-53:1, 
 June 25, 1910.) 
 
 Command of joint forces of the Army 
 and Navy. — There is no law which purports 
 
 to provide who shall command joint forces of 
 the Army and Navy doing duty together, this 
 matter having been left by Congress, where it 
 properly belongs, to the President, who, as com- 
 mander in chief of the Army and Navy, is the 
 only authority vested by the Constitution with 
 the ])ower to determine what officers shall take 
 command of such forces, either l)y virtue of 
 rank or by special designation. Article lO'O 
 of the Navy Regulations, 1913, issued with the 
 written approval of the President, provides: 
 "An officer of the Navy can not assume com- 
 mand of Army forces on shore, nor can an officer 
 of the Army assume command over any ship of 
 the Navy, or oA-er its officers or men afloat, ex- 
 cept in either case by special authority for a 
 particular ser\dce; but when officers of the Navy 
 are on duty on shore with the Army they shall 
 be entitled to the i)recedence of the rank in the 
 Army to which their own coiTesponds, exce])t 
 command as aforesaid, and this precedence will 
 regulate their right to quarters." (File 3980- 
 1402:3, Mar. 4, 1918.) 
 
 For other cases, see note to section 1342, 
 Revised Statutes, article 120. 
 
 Corresponding rank did not give corre- 
 sponding pay. — ^VVTiile the act of July 16, 1862, 
 sec. 1466, R. S., had fixed the relative rank 
 of Army and naval officers, no provision for 
 similarity of pay was made until the passage of 
 the Navy personnel act of March 3, 1899 (30 
 Stat., 1004), which act, while providing against 
 a reduction of then existing pay of commis- 
 sioned officers of the Navy, undertook to equal- 
 ize the pay of naval officers (theretofore gen- 
 erally below that paid to officers of correspond- 
 ing rank in the Army) with that of officers in 
 the Armv of equal rank. (U. S. v. Crosley, 196 
 U. S., 327, citing U. S. v. Thomas, 195 U. S., 
 418.) 
 
 Sec. 1467. [Rank according to date.] Line officers shall take rank in each 
 grade according to the dates of their commissions. — (16 July, 1862, c. 183, s. 1, 
 V. 12, p. 583. 21 April, 1864, c. 63, s. 7, v. 13, p. 54. 24 Jan., 1865, c. 19, 
 s. 1, V. 13, p. 424.) 
 
 Graduates of Naval Academy, precedence of. 
 
 See section 1483, Revised Statutes. 
 Precedence of Marine officers. See section 
 
 1603 and note to section 1466, Revised 
 
 Statutes. 
 Precedence of officers selected to command 
 
 squadrons. See sections 1434 and 1464, 
 
 Re\'ised Statutes. 
 Precedence of commanding officers of vessels 
 
 and stations. See section 1468, Revised 
 
 Statutes. 
 Precedence of staff officers of Navy. See 
 
 sections 1466, 1485, 1486, and 1489, Re- 
 
 vnsed Statutes, and notes thereto. 
 Precedence of officers promoted by selection to 
 
 the ranks of commander, captain, and rear 
 
 admiral in the line or staff of the Navy. 
 
 See act of August 29, 1916 (39 Stat., 579), 
 
 as amended by act of July 1 , 1918 (40 
 
 Stat., 718). 
 Rank of officers advanced for distinguished 
 
 conduct in battle. See sections 1506-1510, 
 
 Revised Statutes. 
 
 Special pro\isions governing the precedence 
 of temporary, reserve, and Coast Guard 
 officers transferred to the line or stafi of the 
 regular Navy, are contained in act of Jiine 
 4, 1920, sections 3, 4, and 5 (41 Stat., 835, 
 836). 
 Date of commission defined. — Seniority 
 among line officers of the Navy is determined 
 by date of commission — that is, the date from 
 which the commission recites that the appoint- 
 ment to a given grade begins. (18 Op. Atty. 
 Gen., 393; see also Toulon v. U. S., 52 Ct. Cls., 
 333; 24 Comp. Dec, 177; 22 Comp. Dec, 623; 
 17 Comp. Dec, 605; 22 Comp. Dec, 565, 566; 
 compare Young v. U. S., 19 Ct. Cls., 145.) 
 
 Officer suspended from rank by sentence 
 of court-martial. — ^WTiere an oflicer is sen- 
 tenced by court-martial "to be suspended for 
 two years from rank and duty, on furlough pay, 
 and to retain his present number on the list of 
 lieutenant commanders during that time, " 
 officers in the same grade, although of a later 
 date of commission, may pass above him on the 
 
 668 
 
The Navy. 
 
 Pt.2. RE VISED STAT UTES. 
 
 Sec. 1469. 
 
 list by reason of the sentence which held said 
 officer to the number which he held at the time 
 of the sentence. The sentence rendered by 
 authority of law g^ves the law in this case, and 
 section 1467, Revised Statutes, must, in its ap- 
 plication, accord with the sentence. An order 
 thereafter issued by the Secretary of the Navy, 
 remitting "the unexecuted portion of the sen- 
 tence, "does not operate to restore the officer to 
 the position in the list to which his date of com- 
 mission would entitle him. The fomi of the 
 remitting order was not a nullification of the 
 original sentence, neither was it an absolute 
 pardon for the offense committed . The sentence 
 IS neither declared void nor vacated; the "un- 
 executed portion" is "remitted"; that portion 
 of the sentence which previous to the remitting 
 order operated to place two officers above the 
 officer sentenced was executed at the date of 
 the order of remission, and was therefore by the 
 terms of the order not affected by it. While an 
 absolute pardon might reinstate the officer 
 sentenced (citing 12 Op. Atty. Gen., 547, and 
 17 Op. Atty. Gen., 31 and 656), an order by the 
 Secretary remitting the unexecuted portion of 
 the sentence can not produce that result. (20 
 Op. Atty. Gen., 243; compare notes to Constitu- 
 tion, Art. II, sec. 2, clause 1, "When pardon 
 may be granted. ") 
 
 Loss of date for failure to qualify for 
 promotion. — See note to section 1505, Revised 
 Statutes, as amended. 
 
 Precedence of officers promoted by 
 selection. — \\Tien officers are promoted by 
 selection they should be considered as haAdng 
 gained length of service according to their 
 promotion in determining their relative rank 
 with other grades of the Navy, to a sufficient 
 extent to place them above the officers over 
 whom they were thus advanced. (17 Op. Atty. 
 Gen., 56. See section 1486, R. S., as to officers 
 who have gained or lost niunbers.) 
 
 When the report of the Board of Rear 
 Admirals for selection for promotion created by 
 act of August 29, 1916 (39 Stat., 578), is ap- 
 proved by the President, "the officers recom- 
 mended therein shall be deemed eligible for 
 selection, and if promoted shall take rank with 
 
 one another in accordance with their seniority 
 in the grade from which promoted. " (Act 
 Aug. 29, 1916, 39 Stat., 579.) 
 
 Where officer has been issued more than 
 one commission in the same rank. — See 
 file 4649-02, July 17, 1902, noted under section 
 421, Revised Statutes, "Precedence of chiefs 
 of bureaus. " 
 
 An officer who receives a permanent com- 
 mission in the grade of commander while 
 already holding a temporary commis.sion in 
 the same grade of an earlier date, continues 
 to take precedence from the date of his tem- 
 porary commission so long as that commission 
 remains in force and is not expressly revoked 
 or terminated by operation of law. (C. M. 0. 
 237, 1919, p. 28, citing file 11130-47:1, July 18, 
 1919; see also C. M. O. 72, 1917, p. 20, citing 
 file 11130-47, Nov. 28, 1917). 
 
 An officer given a temporary commission as 
 assistant surgeon with the rank of lieutenant 
 (junior grade), and afterwards given a per- 
 manent commission in the same grade and 
 rank from a later date, takes precedence from 
 the date stated in his permanent commission 
 and notr from the earlier date stated in his tem- 
 porary commission. (C. M. O. 30, 1918, p. 31, 
 citing file 111.30-37:4, Mar. 12, 1918.) 
 
 Antedating rank on promotion. — See 
 note to section 1458, Revised Statutes. 
 
 Precedence of officers commissioned on 
 same date. — See note to section 1466, Revised 
 Statutes. 
 
 When naval officers are commissioned on the 
 same date, the numbering of the commissions 
 to determine the relative rank of the officers 
 is, in the absence of statutes, a matter of practice 
 in the Navy Department, and not governed by 
 law. (1 Op. Atty. Gen., 325.) 
 
 A fictitious date can not properly be 
 inserted in an officer's commission, where this 
 would be attended with prejudice to other 
 officers in the same grade, unless there is clear 
 authority of law for so doing. (14 Op. Atty. 
 Gen., 192.) 
 
 For other cases, sse notes to Constitution, 
 Article II, section 3, "Duty to commission 
 officers. " 
 
 Sec. 1468. [Commanding officers of vessels and stations.] Commanding 
 officers of vessels of war and of naval stations shall take precedence over all 
 officers placed under their command. — (.3 Mar., 1871, c. 117, s. 12, v. 16, p. 537.) 
 
 Command of hospital ships. See note to section 
 1488, Revised Statutes. 
 
 Command of vessels and navy yards. See 
 sections 1529 and 1542, Revised Statutes. 
 
 Marine officers not to exercise command over 
 any navy yard or vessel of the United 
 
 States. See section 1617, Revised Stat- 
 utes. 
 
 Precedence of officers commanding squadrons. 
 See sections 1434 and 1464, Revised 
 Statutes. 
 
 Staff officers, exercise of military command by. 
 See section 1488, Revised Statutes. 
 
 Sec. 1469. [Aid or executive officer.] The Secretary of the Navy may, 
 in his discretion, detail a line officer to act as the aid or executive of the com- 
 manding officer of a vessel of war or naval station, which officer shall, when not 
 impracticable, be next in rank to said commanding officer. Such aid or execu- 
 tive shall, while executing the orders of the commanding officer on board the 
 vessel or at the station, take precedence over all officers attached to the vessel 
 
 669 
 
Sec. 1471. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 or station. All ordei-s of such aid or executive shall be regarded as proceeding 
 from the commanding officer, and the aid or executive shall have no indej^end- 
 ent authority in consequence of such detail. — (3 Mar., 1871, c, 117, s, 12, v. 
 16, p. 537.) 
 
 officer or any other officer who has other duties 
 to perform separate and distinct from the duties 
 of an aid. (Knox v. U. S., 52 Ct. CLs., 22.) 
 
 A captain in the Navy ordered to duty as 
 captain of the yard, where the commandant 
 of the navy yard was a rear admiral, is not 
 entitled to additional pay as aid to a rear admi- 
 ral. (Helm V. U. S., 52Ct. Cls.. 32.) 
 
 A lieutenant in the Navy ordered to duty as 
 "aid to the commandant, captain of the yard, 
 and also as engineer officer of the yard, " is 
 entitled to the additional pay provided Ijy the 
 act of May 13, 1908 (35 Stat., 128), as aid to a 
 rear admiral, the navy yard being under the 
 command of an officer with the rank of rear 
 admiral. (Frucht v. U. S., 49 Ct. Cls., 570.) 
 
 The decision of the Court of Claims in the 
 Frucht case (noted above) turned upon the 
 character of duties actually shown to have been 
 performed by the claimant in that case, which 
 were personal duties in addition to and aside 
 from his duties as captain of the yard. In 
 that case it was specifically stated in the find- 
 ings of fact: "While stationed as aid to the 
 commandant of the navy yard at Pensacola, 
 Fla., the claimant performed the usual duties 
 required of aids to the commandant * * * 
 and in addition performed other duties of a 
 more personal character and such as are usually 
 required of aids to rear admirals in the Navy 
 and generals in the Army." (File 262-54- 
 1643:1, Jan. 19, 1915.) 
 
 Where an officer was detailed by the Secre- 
 tary of the Navy to duty as "aid to Rear Ad- 
 miral William F. FuUam, " Superintendent of 
 the Naval Academy, he was not detailed for 
 dutj^ as aid or executive under section 1469, 
 Revised Statutes, and regulations based thereon; 
 but was an aid to a rear admiral and his duties 
 were in no way the same as those provided for 
 under the laws and regulations relating to aids 
 or executives, .and captains of the yard. There 
 is no law or regulation which prevents a rear 
 admiral on duty ashore from having an aid, 
 and if the Secretary of the Navy specifically 
 designates an officer to serve in such capacity 
 he is entitled to the additional pay provided 
 by the act of May 13, 1908. (23 Comp. Dec. 
 .329; see also 24 Comp. Dec, 558.) 
 
 For other cases, see note to section 1556, 
 Revised Statutes, "Additional pay for special 
 duty." 
 
 Staff officer can not be assigned to duty 
 as "aid or executive." — See note to section 
 
 "Aid or executive" is not entitled to 
 additional pay as aid to a rear admiral. — 
 Section 1469, Revised Statutes, has no refer- 
 ence to the designation of aids on the personal 
 staff of a Navy'officer like that provided for 
 officers of the Army in sections 1096-1098, 
 Revised Statutes. (6 Comp. Dec, 154.) 
 
 The provision in the act of May 13, 1908 
 (35 Stat., 128), for additional pay for aids is: 
 " Aids to rear admirals embraced in the nine 
 lower numbers of that grade shall receive one 
 hundred and fifty dollars additional per annum, 
 and aids to all other rear admirals two hundred 
 dollars per annum each." The statutory aid 
 or executive to a commandant of a naval 
 station, or "captain of the yard" as he is 
 styled by Navj'- Regulations, is not an aid of 
 the kind contemplated by the act of May 13. 
 1908, and therefore is not entitled to the addi- 
 tional pay which that act provides for "aids 
 to rear admirals, " even though the particular 
 commandant with whom he serves may inci- 
 dentally be a rear admiial. An officer detailed 
 as aid or executive officer to the commandant 
 of a naval station under the conditions of 
 section 1469 corresponds by the terms of that 
 statute to an executive officer of a war vessel. 
 He acts as an aid or executive officer to the 
 commandant as commandant, whomsoever 
 the commandant may be and whatever grade 
 he may hold, and independently of his per- 
 sonality. The mutual official relationship 
 between them is simply that of a superior offi- 
 cer and an officer of an inferior rank attached for 
 duty purposes to a common station, as distin- 
 guished from the individual, personal, or 
 social relationship of an aid and a rear admiral, 
 which is the basic relationship between an aid 
 and a rear admiral of the kind of aid contem- 
 plated by the act of May 13, 1908, and for 
 whose service in such relationship that act 
 has provided additional pay. The duties per- 
 formed by the former for the commandant 
 are the routine executive duties of a naval 
 station, while the duties performed by the 
 latter for a rear admiral are personal or social 
 in their character. (23 Comp. Dec, 327, 
 following 21 Comp. Dec, 561, which over- 
 ruled 21 Comp. Dec, 431.) 
 
 An aid to an admiral in the Navy, whose 
 pay is provided for in the act of May 13, 1908, 
 IS an officer legally ordered to duty with an 
 admiral, \dce admiral, or rear admiral to per- 
 form for him strictly personal, confidential, 
 and routine duties. These duties can not be 
 combined with the duties of a fleet ordnance 
 
 1404, Revised Statutes. 
 
 Sec. 1470. [Staff officers, when to communicate directly with commanding 
 officer.] Staff officers, senior to the officer so detailed, shall have the right to 
 communicate directly with the commanding officer. — (3 Mar., 1871, c. 117, s, 
 12, V. 16, p. 537.) 
 
 Sec. 1471. [Chiefs of Bureaus.] The cliiefs of the Bureau of Medicine and 
 Surgery, Provisions and Clothing, Steam Engineering, and Construction and 
 
 670 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1471. 
 
 Kepair shall have the relative rank of commodore while holding said position, 
 and shall have, respectively, the title of Surgeon-General, Paymaster-General, 
 Engineer-in-Chief, and Chief Constructor. — (3 Mar., 1871, c. 117, s. 12, v. 16, 
 p. 537.) 
 
 Amendment to tMs section was made by act of 
 IVIarch 3, 1899, section 7 (30 Stat., 1005), 
 wMch provided that "when the office of 
 chief of bureau is filled by an officer below 
 the rank of rear admiral, said officer shall, 
 while holding said office, have the rank of 
 rear admiral." By act of July 1, 1918 
 (40 Stat., 717), it was provided that "here- 
 after chiefs of bureaus of the Navy Depart- 
 ment, including the Judge Advocate Gen- 
 eral of the Navy, shall, while so serving, 
 have coiTesponding rank and shall receive 
 the same pay and allowances as are now or 
 may hereafter be prescrilaed by or in pur- 
 suance of law for chiefs of biu'eaus of the 
 War Department and the Judge Advocate 
 General of the Army." By act of Oc- 
 tober 6, 1917 (40 Stat., 411), it was pro- 
 vided with reference to the Army that 
 "hereafter, the chief of any existing staff 
 corps, department, or bureau, except as is 
 otherwise provided for the Chief of Staff, 
 shall have the rank, pay, and allowances 
 of major general." 
 As to rank, title, and precedence of chiefs of 
 bureaus, see note to section 421, Revised 
 Statutes. 
 Biu"eau of Provisions and Clothing was desig- 
 nated as Bureau of Supplies and Accounts 
 by act of July 19, 1892 (27 Stat., 243, 245). 
 Bureau of Steam Engineering was designated 
 as Bureau of Engineering by act of June 
 4, 1920 (41 Stat, 828). 
 Historical note.— On December 24, 1862, 
 the Attorney General rendered an opinion to 
 the Secretary of the Navy (10 Op. Atty. Gen., 
 413), holding that the latter had authority 
 under the law to issue regulations fixing the 
 "relative rank of the line and ci\il or staff 
 officers of the Navy." Following this opinion 
 it was provided by regulation that chiefs of 
 bureaus of the staff corps were "to rank with 
 commodores, and to take precedence of each 
 other, according to their dates of commission as 
 surgeons, paymasters, naval constructors, and 
 engineers, and not according to the date of 
 appointment as * * * chief of bm-eau." 
 (Navy Regs., 1865, Art. II, par. 25; Navy 
 Dept. order Mar. 3, 1863.) On March 31, 1869, 
 the Attorney General (13 Op. Atty. Gen., 10) 
 dissented from the previous opinion of his 
 department, above cited, and held that certain 
 regulations issued by the Secretary of the Nay>', 
 with the approbation of the President, on 
 March 13, 1863, "establishing and increasing 
 the relative rank of the staff officers of the 
 Nav^^" were invalid. By General Order No. 
 120 of April 1, 1869, the Secretary of the Navy 
 published this latter opinion of the Attorney 
 General, and stated that, in accordance there- 
 with, "the order of March 3, 1863, and the Navy 
 Regulations, Article II, paragraphs 6 to 28 
 (both inclusive), are hereby revoked and 
 annulled." Thereafter, by act of March 3, 
 1871 (16 Stat., 537, sec. 12), Congress provided 
 
 that the chiefs of the Bureaus of Medicine and 
 Surgery, Provisions and Clothing (now Sup- 
 plies and Accounts), Steam Engineering (now 
 Engineering), and Construction and Repair, 
 shall have the relative rank of commodore while 
 holding said position, "or if heretofore or here- 
 after retired therefrom by reason of age of length 
 of ser\T.ce. ' ' The same act provided that when 
 the office of cMef of bureau is filled by a line 
 officer below the rank of commodore, said officer 
 shall have the relative rank of commodore dur- 
 ing the time he holds said office. 
 
 Titles of chiefs of bureaus. — The head of a 
 department for his own purposes as such has 
 authority to designate offices therein and to 
 cause his subordinates to designate them in 
 official communications by names other than 
 those theretofore borne by such offices. There 
 is no statute or rule of law which forbids the 
 emplojTQent of certain names in such cases, 
 where the head of the department considers 
 that new relations acquii'ed by such branches 
 of business under a reorganization of his de- 
 partment requires. Congress has not seen fit to 
 so hamper a coordinate branch of the Govern- 
 ment. Its own use of names is not such a pro- 
 hibition. There is no legal objection to the 
 employment of two names or many names for 
 the same object nor will it be "inconsistent 
 with law " for the head of the department under 
 section 161, Revised Statutes, to make use of 
 other names than those used by Congress. 
 Names are ordinaiily free for the person speak- 
 ing or wiiting to choose. (24 Op. Atty. Gen., 
 697.) 
 
 Persons in the pubhc service may be offi- 
 cially designated by titles other than those 
 used in the law to identify their offices or posi- 
 tions imder the Government, it being necessary 
 to adhere to the statutory designation only in 
 making their appointments to office. The 
 mere assignment of a different title for official 
 purposes to one occupjing an authorized posi- 
 tion under the Government does not by any 
 means constitute an attempt by the executive 
 to create a new grade or to change the office or 
 position held by one whose designation has 
 thus been changed for administrative reasons. 
 (C. M. O. 92, 1918, p. 27; file 18141-24, July 9, 
 1918.) 
 
 "The chiefs of the Bureaus of Medicine and 
 Siu-gery, Supplies and Accounts, Steam Engi- 
 neering (now Engineering), Construction and 
 Repair, and Yards and Docks, while holding 
 these offices, shall have, respectively, the title 
 of Surgeon General of the Navj% Paymaster 
 General of the Navy, Engineer in Chief of the 
 Navy, Chief Constructor of the Navy, and Chief 
 of CU\dl Engineers of the Navy. Each such 
 chief of bureau, however, shall be addressed 
 and designated by the title of his rank; in 
 Avritten communications the title of his office 
 to be stated next after his name." (Art. R. 
 1006 (2), Navy Regs., 1913, C. N. R. 12, Sept. 
 12. 1918.) 
 
 671 
 
Sec. 1473. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Staff bureaus. — The bureaus mentioned in 
 section 1171 are the staff bureaus of the Xa\-y, 
 under the existing: ori^anization, except that 
 the Engineer Corps (Steam Engineering) has 
 now been transferred to the line by the person- 
 
 nel act of March 3, 1899 (30 Stat., 1005). (25 
 Op.Atty. Gen., 122.) 
 
 For other cases concerning chiefs of 
 bureaus, their titles, etc. see note to section 
 421, ReAosed Statutes. 
 
 Sec. 1472. [Chief of bureau, when below rank of commodore. Super- 
 seded.] 
 
 This section provided as follows: 
 
 "Sec. 1472. AMien the office of chief of 
 Bureau is filled by a line oQicer below the rank 
 of commodore, said officer shall have the rela- 
 tive rank of commodore during the time he 
 holds said office."— (3 Mar., 1871, c. 117, s. 12, 
 V. 16, p. 537.) 
 
 It was superseded by the following pro- 
 vision in the act of March 3, 1899, section 7 (30 
 Stat. , 1005) : ' ' When the office of chief of bureau 
 is filled by an officer below the rank of rear 
 admiral, said officer shall, while holding said 
 office, have the rank of rear admiral." The 
 latter pro\dsion was in turn superseded by act 
 of July 1, 1918 (40 Stat., 717), which pro\-ided 
 that "hereafter chiefs of bureaus of the NaA"v 
 
 Department, including the Judge Advocate 
 General of the Navy, shall, while so serving, 
 have corresponding rank and shall receive the 
 same pay and allowances as are now or may 
 hereafter be prescribed by or in pursuance of 
 law for chiefs of bureaus of the War Depart- 
 ment and the Judge Advocate General of the 
 Army." By act of October 6, 1917 (40 Stat., 
 411), it was provided with reference to the 
 Army that "hereafter, the chief of any existing 
 staff corps, department, or biu-eau, except as is 
 otherwise provided for the Chief of Staff, shall 
 have the rank, pay, and allowances of major 
 general." 
 
 See note to section 421, Revised 
 Statutes, for cases concerning the rank 
 status, etc., of chiefs of bureaus. 
 
 Sec. 1473. [Retired from position of chief of bureau.] Officers who have 
 been or who shall be retired from the position of cliiefs of the Bureau of Medi- 
 cine and Surgery, of Provisions and Clothing, of Steam Engineering, or of 
 Construction and Repair, by reason of age or length of service, shall have the 
 relative rank of commodore. — (3 Mar., 1871, c. 117, s. 12, v. 16, p. 537.) 
 
 Amendment to this section was made by act of 
 
 July 19, 1892 (27 Stat., 243, 245), by which 
 
 the Bureau of Provisions and Clothing was 
 
 designated as Bureau of Supplies and Ac- 
 
 coimts; also by act of March 3, 1899, sec- 
 tion 7 (30 Stat., 1006), which changed the 
 
 words "the relative rank of" to "the rank 
 
 of," and provided that chiefs of bureaus, 
 
 while so serving, shall have the rank of 
 
 rear admiral; and by act of June 4, 1920 (41 
 
 Stat., 828), which changed the designation 
 
 of tlie Bureau of Steam Engineering to 
 
 Bureau of Engineering. 
 By act of May 13, 1908 (35 Stat., 128), it was 
 
 provided that "any officer of the Navy who 
 
 is now serving or shall hereafter serve as 
 
 chief of a bureau in the Navy Department, 
 
 and shall subsequently be retired, shall be 
 
 retired with the rank, pay and allowances 
 
 authorized by law for the retirement of such 
 
 bureau chief." 
 Rank of staff officers retired for causes incident 
 
 to the service. See section 1482, Revised 
 
 Statutes. 
 See generally note to section 421, Revised Stat- 
 utes, as to retirement of chiefs of bureaus. 
 Rank on retirement now rear admiral. — 
 The Navy personnel act of March 3, 1899, sec- 
 tion 7 (30 Stat., 1005)_, has now substitiited the 
 rank oi reai admiral in the cases of retirement 
 of staff officers, in which suc-h retirement was 
 authorized by the Revised Statutes with the 
 relative ranlc of commodore. (25 Op. Atty. 
 Gen., 294, 296, citing 22 Op. Atty. Gen., 433; 
 compare 5 Comp. Dec, 821.[) 
 
 Retirements under section 1473, Revised 
 Statutes, are made in practice with the rank 
 
 of rear admiral instead of commodore, as was 
 provided therein. (File 3980-1402, Oct. 31, 
 1917.) 
 
 For other cases, see note to section 1466, 
 Revised Statutes. 
 
 Retirement of a chief of birreau creates 
 a vacancy, but is not a vacancy created by 
 death, resignation, absence, or sickness which 
 may be filled in accordance with sections 178- 
 181, Revised Statutes. Congress having made 
 no provision for the temporary discharge of his 
 duties in this case, the bureau remains without 
 a head until the place is filled pursuant to the 
 provisions of section 421, Revised Statutes. 
 The order of the President designating the 
 Chief Constructor as Acting Chief of the Bureau 
 of Steam Engineering [now Engineering], upon 
 the retirement of the chief of that bureau, was 
 unauthorized. (27 Op. Atty. Gen., 337; com- 
 pare cases noted under sec. 179, R. S.) 
 
 "Retired" defined. — There is a difference 
 between retiring from the office and retirement 
 in the sense of section 1473. All staff biu-eau 
 chiefs who are entitled to retirement under the 
 statutes when serving as PajTnaster General, 
 etc., have the right to bear the appropriate title 
 followed by the Word " retired " ; but of course 
 this is not so when the service as bxu-eau chief 
 is followed, not by retirement but by retiun to 
 other active duties. (25 Op. Atty. Gen., 294.) 
 
 Retirement affects tenure of office. — 
 That the retirement of an officer from active 
 service affects his tenure of office as bureau 
 chief, as well as his office in the line, is recog- 
 nized by Congress in thj provisions of section 
 1473, Revised Statutes. (27 Op. Atty. Gen., 
 337.) 
 
 672 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1474. 
 
 Retirement in cases not covered by this 
 section. — The contention that, since section 
 1473, Revised Statutes, specifically pro\T.des 
 that chiefs of foixr of the bui-eaus shall be retired 
 with the rank of comnrjodore, therefore Congi'ess 
 can not have intended to confer the same priv- 
 ilege on the chiefs of the other four bureauSj or 
 on the Judge Advocate General, besides im- 
 puting to Congi'ess an intention to make a dis- 
 ciimination for which no possible reason can 
 be suggested, loses its force when the act of 
 Marcli 3, 1871 (which is the source of R. S. 1471, 
 1472, 1473, and 1482), is read as a whole in the 
 light of the situation existing when it was 
 passed, ^"lien this is done with a desire to 
 ascertain the actual intention of Congress, the 
 proper inference ■n'ill be seen to be that Con- 
 gi-ess intended, not to discriminate between 
 one chief of bureau and another, but to confer 
 upon the chiefs of the so-called staff bureaus a 
 gi'ade or rank on retirement which it thought 
 already appertained to the chiefs of the so- 
 called line biu-eaus. (31 Op. Atty. Gen., 
 505.) 
 
 It seems clear when the statutes relating 
 to this subject are considered as a whole and in 
 their order, that Congress intended: (a) Asa 
 general thing to equalize the grade or rank of 
 an officer of the Navy on retirement with that 
 enjoyed by him at the moment of his retire- 
 ment; {h) to use the word "grade" in section 
 1457, Re\Tsed Statutes, as a general term indi- 
 cating any marked distinction fixed by law 
 among officers which would be expressed in 
 their commission, title, or pay, not excluding 
 chiefs of biu-eaus having a certain rank; (c) 
 not to make any distinction between one occu- 
 pant of a biu'eau office and another because of 
 the line or staff source from which he came. 
 (31 Op. Atty. Gen., 505, holding that "a line 
 officer of the Naw, retired while ser\T.ng as 
 Chief of Bureau or Judge Advocate General, 
 should be placed on the retired list with the 
 rank attached by law to the said position of 
 Chief of Bureau or Judge Advocate General.") 
 
 For other cases relating to retirement of 
 chiefs of Inireaus, etc., see note to section 421, 
 Re\'ised Statutes. 
 
 Sec. 1474. [Medical Corps.] Officers of tlie Medical Corps on the active list 
 of the Navy shaU have relative rank as foUows: 
 
 Medical directors, the relative rank of captain. 
 
 Medical uispectors, the relative rank of commander. 
 
 Surgeons, the relative rank of lieutenant-commander or lieutenant. 
 
 Passed assistant surgeons, the relative rank of lieutenant or master. 
 
 Assistant surgeons, the relative rank of master or ensign. — (3 Mar., 1871, c. 
 117, s. 5, V. 16, p. 535.) 
 
 Amendment to this section was made by act of 
 June 7, 1900 (31 Stat., 697), which provided 
 that "assistant surgeons shall rank with as- 
 sistant sm'geons in the Army"'; by section 
 1168, Revised Statutes, the lowest rank of 
 an assistant surgeon in the Army during the 
 first three years of service was that of a lieu- 
 tenant of caAalry; the effect of the act of 
 1900 was therefore to give to assistant sm- 
 geons in the Na^'y the rank of lieutenant 
 (junior grade) instead of ensign. (Hum- 
 mer V. U. S., 224 U. S., 138.) The act of 
 March 3, 1903 (32 Stat., 1197), authorized 
 the appointment of additional passed assist- 
 ant and assistant surgeons "with the rank, 
 respectively, of lieutenant and lieutenant 
 (junior grade)." Further amendment to 
 this section was made bv act of August 29, 
 1916(39 Stat., 577), which piw-ided that "all 
 assistant surgeons shall from date of their 
 original appointment take rank and prece- 
 dence with lieutenants (junior grade)." 
 The act last cited further created the rank of 
 rear admiral for medical du-ectors,inaddi- 
 tion to the rank of captain, the distribution 
 to be "one-half medical directors with the 
 rank of rear admiral to four medical directora 
 ^\•ith the rank of captain, to eight medical 
 inspectors ^rith the rank of commander, to 
 eighty -seven and one-hali in the grades be- 
 low medical inspector." (See note to sec. 
 1368, R. S.) The words, "the relative rank 
 of," as used in this section, were changed 
 to read, "the rank of," by act of March 3. 
 
 1899, section 7 (30 Stat., 1006). The title 
 "master" was changed to "lieutenant (jun- 
 iorgrade) " byactof March 3, 1883 (22 Stat., 
 
 472). 
 
 By 
 
 (39 
 
 Stat., 576), 
 
 of the 
 * * * 
 
 act of August 29, 1916 
 it was proA"ided that "officers 
 lower gi-ades of the Medical Corps, 
 shall be advanced in rank up to and includ- 
 ing the rank of lieutenant commander with 
 the officers of the line vnXh whom or next 
 after whom they take precedence under ex- 
 isting law." By act of May 22, 1917, sec- 
 tion 17 (40 Stat., 89), it was enacted that the 
 above clause in the act of August 29, 1916, 
 shall not operate "to distm-b the relative 
 position of officers in the Medical Corps 
 ^vith reference to precedence or promotion , 
 but all such officers otherwise qualified shall 
 be advanced in rank with or ahead of offi- 
 cers in said corps who were their juniors on 
 the date of said act. ' ' 
 By act of July 1, 1918 (40 Stat., 718), it was pro- 
 \'ided that the advancement of staff officers 
 of the Na^vy to the ranks of commander, 
 captain, and rear admiral, shall be by selec- 
 tion in the manner therein provided. 
 
 Examinations were discontinued for promotion 
 of staff officers in grade by act of May 22, 
 1917, section 20 (40 Stat., 89), which act 
 and section also reenacted a pro%dsion in 
 the act of March 4, 1917 (39 Stat., 1182), 
 requii-ing examinations of staff officers for 
 advancement in rank. 
 
 673 
 
Sec. 1474. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 See pections 1368-1375, Revised Statutes, and 
 notee thereto, concerning the organization 
 of the Medical Corps, and appointments, 
 ]iroruotions, etc., therein. 
 Historical note.— It is ob\'iou8 that every 
 military estivblit-hmcnt, whether Army or Naw, 
 must have connected with it certain organiza- 
 tions of business or scientific men whose serv- 
 ices, although auxiliary to the combatant force 
 of such establishment, are yet nece.'^sary to its 
 efficiency. These constitute the staff corps as 
 distinguished from the line. It is also neces- 
 sary that the officers of such a corps, being gen- 
 tlemen who render important and valuable serv- 
 ices, should be brought into such relations ^vith 
 the officers of the line that their ovm dignity 
 shall be preserved, and the proper order of a 
 military establishment maintained. While, 
 therefore, rank is primarily established with 
 reference to those who are entitled to command, 
 with a \-iew to determining the order in which 
 they are to command, it is necessary to giA^e to 
 the grades created in other corps a mnk which 
 shall either be the same vnth. the rank of the offi- 
 cers of the Line, or which, by relation to the rank 
 of the officers of the line, shall entitle those hold- 
 ing it to such honor, attention, and respect 
 as is accorded to officers of the line of the rank 
 to which it relates or is assimilated. Such rank, 
 whether it be absolute in terms, or whether it be 
 termed assimilated or relative rank, may, of 
 course, be always subject to such exceptions as 
 the legislative power may deem proper. Or- 
 ders were early passed bj'' various secretaries of 
 the NaA-y proA'iding that certain officers of the 
 staff should rank with certain officers of the line, 
 the same orders pro\'idiug that this should not 
 give them authority to exercise militaiy com- 
 mand, and should give no additional right to 
 quarters. Two general orders of this nature, of 
 Secretary Bancroft and Secretary !Mason, relat- 
 ing to surgeons and pursers, were confirmed by 
 the act of August 5, 1854 (sec. 4, 10 Stat., 587). 
 A similar order by Mr. Toucey in relation to 
 engineers was also confirmed by a subsequent 
 statute. These orders did not give to the staff 
 officers to whom they referred the same rank as 
 that held by officers of the line, but a rank equal 
 to and assimilated with that of officers of the 
 line. In January 1871 a bill was passed by the 
 House of Representatives which gave to each 
 staff officer definite or absolute rank, the phrase 
 used in regard to such officers, e. g., being "13 
 pay inspectors who shall have the rank of com- 
 mander." This bill was the subject of much 
 discussion, and in the Senate it was amended 
 and finally passed by both houses of Congress in 
 a form which gave to the officers of the staff rela- 
 tive rank, the phrase used in regard to such offi- 
 cers being, e. g., "13 pay inspectoi-s who shall 
 have the relative rank of commander." This 
 statute is embodied in sections 1474-1480, Re- 
 vised Statutes. It is impossible to conceive 
 why this change was made if Congress, when it 
 finally passed the bill, did not suppose that the 
 "relative" rank of commander was something 
 different from the rank or grade of commander. 
 The terms seem almost to force the conclusion 
 that the pay inspector was to have the rank of 
 commander by reference or relation to the rank 
 held by a commander in the line. While un- 
 
 doubtedly Congress might pro\'ide that he 
 should have the absolute rank of commander and 
 might annex to it appropriate conditions con- 
 sidering the duties expected to be performed by 
 him, such as that he should not exercise mili- 
 tary command, it is apparent that in inserting 
 the word "relative " Congress has made the pro- 
 vision which it deemed necessary for the respect 
 which was undoubtedly to be accorded to nim. 
 In the Army it is no doubt tnie that certain offi- 
 cers whose duties are strictly those of staff ofii- 
 cers, like the officers of the Pay Corps of the 
 Army, have absolute rank (see sec. 1182, R. S.), 
 but it will be observed that neither the word 
 "relative " nor any word expressi\-e of the same 
 idea is found in the section. These officers of 
 the Army are identified with certain grades of 
 the line by appropriate words conferring abso- 
 lutely the rank of those grades, but by the use 
 of the word "relative" Congress indicates its 
 intention to make the grades of the Pay Corps 
 of the Xa\'y equal to but not identical with the 
 grades of the line with which they are con- 
 nected by relation. (16 Op. Atty. Gen., 414.) 
 
 On December 24, 1862, the Attorney General 
 rendered an opinion to the Secretary of the 
 Navy (10 Op. Atty. Gen., 413) holding that the 
 latter had authority under the law to issue regu- 
 lations fixing the "relatiA-e rank of the line and 
 ciA-il or staff officers of the NaAy." Following 
 this opinion it was pro\dded by regulation that 
 "surgeons, pajTnasters, naval constructors, 
 chief engineers, chaplains, professors of mathe- 
 matics, passed assistant surgeons, secretaries, 
 assistant surgeons, assistant na^•al constructors, 
 assistant paymasters, first assistant engineers, 
 second assistant engmeei's, third assistant engi- 
 neers, clerks, carpenters, and sailmakers are to 
 be regarded as staff officers, and all other officers 
 of the sendee as line officers. The relatiA^e 
 rank between the officers of these two classes is 
 to be as follows: Assistant surgeons to rank with 
 mastei-s," etc. (Na\y Regs., 1865, Art. II; 
 par. 5 et seq.; Navy Dept. order Mar. 3, 1863.) 
 On March 31, 1869, the Attorney General (13 
 Op. Atty. Gen., 10) dissented from the pre\aous 
 opinion of his department, above cited, and 
 held that certain regulations issued by the Sec- 
 retary of the NaAy , with the approbation of the 
 President, on March 13, 1863, " establishing and 
 increasing the relative rank of the staff officers 
 of the NaA^," were invalid. By General Order 
 No. 120 of April 1, 1869, the Secretary of 
 the Navy published this latter opinion of the 
 Attorney General, and stated that, in accord- 
 ance therewith, 'the order of March 3, 1863, 
 and the Navy Regulations, Article II, ptara- 
 gi-aphs 6 to 28 (both inclusive), are hereby re- 
 voked and annulled." The same general order 
 also published the rank of staff officers as then 
 established by law. Thereafter by act of March 
 3, 1871 (16 Stat., 535, et seq.), embodied in sec- 
 tions 1474-1480, Re"\dsed Statutes, Congress es- 
 tablished the relative rank of various staff offi- 
 cers. 
 
 By the Na\y personnel act of March 3, 1899, 
 section 7 (30 Stat., 1006), it was pro\'ided "that 
 all sections of the Revised Statutes which, in 
 deffiiing the rank of officers or positions in the 
 Na^y, contain the words 'the relative rank of 
 are hereby amended so as to read 'the rank of,' 
 
 674 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1474. 
 
 but ofBcers whose rank is so defined shall not be 
 entitled, in virtue of their rank to command in 
 the line or in other staff corps." 
 
 Comraand of hospital ships by medical 
 officers. — See note to section 1488, Revised 
 Statutes. 
 
 Clerical error in stating rank of medical 
 officer in commission. — An assistant surgeon 
 was nominated to the Senate for appointment 
 as a passed assistant surgeon without mention 
 of the rank, whether lieutenant or lieutenant 
 (jurdor grade), to be held under such appoint- 
 ment; by clerical error he was commissioned 
 as passed assistant surgeon with the rank of 
 lieutenant instead of the rank of lieutenant 
 (junior grade). ^Vhile it is true that section 
 
 1474, Revised Statutes, provides that passed 
 assistant surgeons shall have the rank of lieu- 
 tenant or lieutenant (junior grade), without 
 specifying the number in each rank, yet the 
 rank is not left to the discretion of the appoint- 
 ing power but is determined by section 1485, 
 Re\'ised Statutes. To have given this officer 
 the rank of lieutenant at the time of his promo- 
 tion would have advanced him about 20 num- 
 bers in rank, which, without the advice and 
 consent of the Senate, is specifically prohibited 
 by section 1506, Revised Statutes, as amended 
 by act of June 17, 1878 (20_Stat., 143). Accord- 
 ingly, held that the officer in question is entitled 
 only to the pay of lieutenant (junior grade). 
 (11 Comp. Dec, 43; compare 26 Op. Atty. 
 Gen., 496, noted under sec. 1485, R. S., holding 
 that sees. 1485 and 1486, R. S., have notliing 
 whatever to do in determining whether an offi- 
 cer should be advanced in one rank or more 
 than one.) 
 
 Retirement of medical officer with 
 higher rank than that provided for the 
 active list. — Under section 1474, Revised 
 Statutes, the highest grade in the Medical 
 Corps was that of medical director with the 
 relative rank of captain; and under section 
 
 1475, Revised Statutes, the highest officers of 
 the Pay Corps were pay directors with the 
 relative rank of captain. In the active list 
 there was no higher relative rank to be attained 
 in either of these corps than that of captain. 
 Nevertheless, held that under section 11 of the 
 Navy personnel act of March 3, 1899 (30 Stat., 
 1007), providing for the retirement of certain 
 officers with the rank "of the next higher 
 grade," a pay director and a medical director 
 having the rank of captain were entitled to be re- 
 tired with the rank of rear admiral, although this 
 will result in a higher rank than that to which 
 it would be possible for them to attain in the 
 active service. Of course, one occupying the 
 highest rank in the Nai'y could not by retire- 
 ment or other means be promoted to a higher 
 grade when none exists. But section 11 of the 
 act cited refers to the rank or grade of officers 
 of the Navy generally, without respect to the 
 limitations of rank placed upon the different 
 branches of staff service. (22 Op. Attv. Gen., 
 433.) y V y 
 
 The officers of different staff coi-ps, such as 
 the Medical Corps and the Pay Corps, have 
 separate and distinct titles appropriate to the 
 nature of their service and to their rank in the 
 corps; and in addition thereto are given rela- 
 tive rank by the same title that is applied to 
 
 officers of the line. The line furnishes the 
 standard of rank for officers of all classes. A 
 captain of the line is merely a captain and has 
 but one title to designate both his office and 
 his rank. An officer of the staff has an official 
 title to identify his position in his corps and 
 also a relative rank in addition, the latter being 
 arbitrarily fixed by Congress to designate his 
 relative rank in the service in accordance with 
 the line standard. The rank conferred upon a 
 person holding the position of medical director 
 is purely statutory and arbitrary, and there is 
 no reason why a retired medical director should 
 not hold a higher relative rank than that which 
 is permitted on the active list. That Congress 
 has in other instances contemplated a similar 
 result is apparent from the provisions of section 
 1481, Revised Statutes, which provides that 
 certain staff officers shall when retired have the 
 relative rank of commodore. (22 Op. Atty. 
 Gen., 433.) 
 
 Rank of acting assistant surgeons. — 
 By act of May 4, 1898 (30 Stat., 369, 380), the 
 President was authorized to appoint for tempo- 
 rary service 25 acting assistant surgeons ' ' who 
 shall have the relative rank and compensation 
 of assistant surgeons." The act of June 7, 1900 
 (31 Stat., 697), raised the rank of assistant sur- 
 geons in the Navy by providing that "assistant 
 sm'geona shall rank with assistant surgeons in 
 the Army. ' ' Prior to that act the rank of assist- 
 ant surgeons in the Navy, upon entrance into 
 the Navy, was that of ensign. By Revised 
 Statutes 1168 the lowest rank of an assistant 
 surgeon in the Army, during the first tliree years 
 of service, was that of a lieutenant of cavalry. 
 The effect of the act of 1900 was, therefore, to 
 give assistant surgeons in the Navy a higher 
 rank — that is, to raise them from the rank of 
 ensign to that of lieutenant (junior grade). By 
 circular of the Surgeon General of the Navy, 
 December 29, 1902, it was stated that acting 
 assistant surgeons would have the same. rank 
 and pay as assistant surgeons in the regular 
 service. Claimant was commissioned as an 
 acting assistant surgeon, the commission stating 
 his rank to be that of lieutenant (junior grade). 
 Held, that the act of 1898 pro\-ided for a standard 
 by which to determine the rank and pay of the 
 acting assistant surgeons, and that under said 
 act the standard was the rank and pay of assist- 
 ant surgeons in force at the time when the serv- 
 ices of the acting assistant surgeons were ren- 
 dered, and not the rank and pay in force when 
 the act of 1898 was enacted, which had become 
 a nonexisting or obsolete standard. The rela- 
 tion which the act of 1898 established between 
 the rank and pay of acting assistant surgeons 
 and assistant surgeons in reason must rest upon 
 the sub^antial identity of the services to be 
 rendered by the incumbents of both office.^. 
 (Plummer v. U. S., 224 U. S., 137.) 
 
 A passed assistant svurgeon in the N"a,vy 
 with the rank of lieutenant (junior grade) toi - 
 responds in rank with an assistant surgeon in 
 the Army with the rank of a first lieutenant, 
 and a passed assistant surgeon in the Navy with 
 the rank of lieutenant corresponds in rank with 
 as assistant surgeon in the Army with the rank 
 of captain. His pay is attached to his rank by 
 section 7 of the Navy personnel act of March 3, 
 1899. Therefore a passed assistant surgeon in 
 
 675 
 
Sec. 1475. 
 
 Pi. '2. REVISED STATUTES. 
 
 The Navy. 
 
 the Navy with the rank of lieutenant is entitled 
 to the pay of an oIliciT of corresponding^ rank in 
 the Army, to-\vil, that of an assistant surgeon 
 with the rank of captain. (9 Comp. Dec, 67G, 
 modifying 5 Comp. Dec, 943.) 
 
 Tliere is no grt)und for distinction between 
 assistant surgeons and passed assistant surgeons 
 that would give mounted pay to one and deny 
 it to the other. (9 Oomp. Dec, 670.) 
 
 Section 141)0, Revised Statutes, assimilates 
 in rank lieutenants in the Navy with captains 
 
 in the Army. Under the Navy personnel act 
 of March 3. 1S99 (30 Stat., 1007), and section 
 14()(), Revised Statutes, passed assistant sur- 
 geons of the Navy as well as assistant surgeons 
 rank with captains in the Army. (U. S. v. 
 Farenliolt, 206 U. S., 220.) 
 
 As to status of passed assistant surgeons, see 
 note to .section 1368, Revised Statutes. 
 
 Advancement in rank and promotion of 
 staff officers. — See note to section 1480, 
 Revised Statutes. 
 
 Sec. 1475. [Supply Corps.] Officers of the Pay Corps on the active list of 
 the Navy shall have relative rank as follows: 
 
 Pay directors, the relative rank of captain. 
 
 Pay inspectors, the relative rank of commander. 
 
 Paymasters, the relative rank of lieutenant-commander or lieutenant. 
 
 Passed assistant paymasters, the relative rank of lieutenant or master. 
 
 Assistant paymasters, the relative rank of master or ensign. — (3 Mar., 1871, 
 c. 117, s. 6, V. 16, p. 536.) 
 
 Retirem.ent with higher rank than that 
 provided for the active list. — See note to 
 section 1474, RcN-ised Statutes. 
 
 Rank of paymasters and assistant pay- 
 masters.— The act of June 7, 1900 (31 Stat., 
 697), provides that "assistant surgeons shall 
 rank with assistant surgeons in the Army. " 
 There is no statute which makes assistant 
 paymasters having the rank of ensign and 
 lieutenant (junior grade) rank with assistant 
 paymasters in the Army. Nor is there any 
 law whereby paymasters in the Navy shall 
 rank with paymasters in the Army, yet there is 
 a direct correspondence under these laws be- 
 tween the paymaster with the rank of lieutenant 
 in the Navy and the paymaster vnth the rank 
 of "captain, mounted, " in the Army. Under 
 section 1466, Revised Statutes, lieutenants in 
 the Navy rank with captains in the Army, 
 lieutenants (junior grade) with first lieutenants, 
 and ensigns with second lieutenants. The 
 lowest grade or rank in the pay corps of the 
 Army is that of captain, who is given by law 
 the rank of ' ' captain, mounted. " There is not, 
 and never has been, any rank in the Pay Corps 
 of the Army below that of captain. Accord- 
 ingly, held, "that under the Navy personnel act 
 of^March 3, 1899 section 13 (30 Stat., 1007), 
 providing that officers of the ray Corps of the 
 Navy shall receive the same pay provided by 
 or in pursuance of law for the officers of cor- 
 responding rank in the Army, a paymaster in 
 the Navy mth the rank of lieutenant has cor- 
 responding rank with a "captain, mounted," 
 in the Pay Corps of the Army, and that, there 
 being no corresponding grade in the Pay Corps 
 of the Army to that of assistant paymaster in 
 the Navy with the rank of ensign, or lieutenant 
 (junior grade), the latter corresponds in rank to 
 second lieutenant or first lieutenant in the 
 Infantry of the Army, and is entitled only to 
 Infantry pay. (Stevens v. U. S., 43 Ct. Cls., 
 484; 15 Comp. Dec, 124.) 
 
 Advancement in rank and promotion of 
 staff oflicers. — See note to section 1480, 
 Revised Statutes. 
 
 Amendment to this section was made by act of 
 March 3, 1883 (22 Stat., 472), which changed 
 the title of "master" to "lieutenant 
 (junior grade)"; by act of March 3, 1899, 
 section 7 (30 Stat., 1006), which changed 
 the words, "the relative rank of," to read, 
 "the rank of;" by act of July 11, 1919 
 (41 Stat., 147), which provided that "here- 
 after the Pay Corps shall be called the 
 Supply Corps"; by act of August 29, 1916 
 (39 Stat., 577), which created the rank of 
 rear admiral tor pay directors, in addition 
 to the rank of captain, the distribution to 
 be "one-half pay directors with the rank of 
 rear admiral to four pay directors with the 
 rank of captain, to eight pay inspectors 
 with the rank of commander, to eighty- 
 seven and one-half in the grades below pay 
 inspector." (See note to sec. 1376, R. S.) 
 
 By act of August 29, 1916 (39 Stat., 576), it was 
 pro\dded that "officers of the lower grades 
 of the * * * Pay Corps * * * 
 shall be advanced in rank up to and in- 
 cluding the rank of lieutenant commander 
 with the officers of the line with whom or 
 next after whom they take precedence 
 under existing law.' ' 
 
 act of July 1, 1918 (40 Stat., 718), it 
 was provided that the advancement of 
 staff officers of the Navy to the ranks of 
 commander, captain, and rear admiral 
 shall 1)0 by selection in the manner therein 
 provided. 
 
 Examinations were discontinued for promotion 
 of staff officers in grade by act of May 22, 
 1917, section 20 (40 Stat., 89), wfiich act 
 and section also reenacted a provision in 
 the act of March 4, 1917 (39 Stat., 1182), 
 requiring examinations of staff officers for 
 advancement in rank. 
 
 See sections 1376-1389, Revised Statutes, and 
 
 notes thereto, concerning the organization 
 
 of the Supply Corps, and appointments, 
 
 promotions, etc., therein. 
 
 Historical note.-— See note to section 1474, 
 
 Revised Statutes. 
 
 By 
 
 676 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1477. 
 
 The permanent rank of rear admiral 
 on the active list of the Pay Corps (now 
 Supply Corps) was first authorized by act 
 of June 24, 1910 (36 Stat., 607) which pro- 
 vided that chiefs of bureaus eligible for re- 
 tirement after 30 years' service should be 
 entitled to the permanent rank, title, and 
 emoluments of a chief of bureau, while on the 
 active list, the same as they would have re- 
 ceived if retired for age or length of service; 
 this provision was repealed by act of August 22, 
 
 1912 (37 Stat., 328), which contained a proviso 
 that no officer who had received the benefits 
 of the act of 1910 should be deprived thereof on 
 account of such repeal; prior to its repeal two 
 officers of the Pay Corps, Pajonaster General 
 Eustace B. Rogers (file 22724-18) and Pay- 
 master General Thomas J. Cowie, had been 
 permanently commissioned with the rank of 
 rear admiral. (See note to sec. 421, R. S., 
 under "Rank of chiefs of bureaus.") 
 
 Sec. 1476. [Engineer Corps. Superseded.] 
 
 This section provided as follo-ws: 
 
 ' ' Sec. 147G. Officers of the Engineer Corps on 
 the active listshall have relative rank as follows: 
 
 "Of the chief engineers, ten shall have the 
 relative rank of ca])tain, fifteen that of com- 
 mander, and forty-five that of lieutenant- 
 commander or lieutenant. 
 
 "First assistant engineers shall have the rela- 
 tive rank of lieutenant or master, and second 
 assistant engineers that of master or ensign. " — 
 (3 Mar., 1871, c. 117, s. 7, v. 16, p. 536. 24 Feb.-, 
 1874, c. 35, V. 18, p. 17.) 
 
 It was amended by act of February 24, 
 1874, section 1 (IS Stat., 17), which changed the 
 titleof fhstassistant engineer to passed assistant 
 engineer and changed the title of second assist- 
 ant engineer to assistant engineer. 
 
 It was superseded by act of August 5, 1882, 
 section 1 (22 Stat., 286), which provided that 
 
 the active list of the Engineer Corps should 
 thereafter consist of 10 chief engineers \vith the 
 relative rank of captain, 15 chief engineers 
 with the relative rank of commander, 45 chief 
 engineers with the relative rank of lieutenant 
 commander or lieutenant, 60 passed assistant 
 engineers and 40 assistant engineers with the 
 relative rank for each as previously fixed by 
 law. 
 
 The act of March 3, 1883 (22 Stat., 472), 
 changed the title of "master" to "lieutenant 
 (junior grade). " 
 
 The act of March 3, 1899 (30 Stat., 1004), 
 abolished the Engineer Corps and transferred 
 the members thereof to the line of the Navy. 
 (See note to sec. 1390, R. S.) The appoint- 
 ment and assignment of line officers for engi- 
 neering duty only are authorized by act of 
 August 29, 1916 (39 Stat., 580). 
 
 Sec. 1477. [Constructors. Superseded.] 
 
 This section provided as follows: 
 
 "Sec. 1477. Of the naval constructors, two 
 shall have the relative rank of captain, three of 
 commander, and all others that of lieutenant- 
 commander or lieutenant. Assistant naval 
 constructors shall have the relative rank of 
 lieutenant or master. " — (3 Mar., 1871, c. 117, s. 
 9, v. 16, p. 536.) 
 
 It was amended by act of March 3, 1883 
 (22 Stat., 472). which changed the title "mas- 
 ter" to "lieutenant (junior grade). " 
 
 It was superseded by act of March 3, 1899, 
 section 10 (30 Stat., 1006), which provided 
 ''that of the naval constructors five shall have 
 the rank of captain, five of commander, and 
 all others that of lieutenant commander or 
 lieutenant. Assistant naval constructors shall 
 have the rank of lieutenant or lieutenant (jun- 
 ior grade). " 
 
 The act of August 29, 1916 (39 Stat., 
 577), created the rank of rear admiral for 
 naval constructors in addition to the ranks 
 theretofore aathorized, the distribution to be 
 "one-half naval constructors with the rank of 
 rear admiral to eight and one-half naval con- 
 structors with the rank of captain, to fourteen 
 naval consti-uctors with the rank of commander, 
 to seventy-one naval constructors and assistant 
 naval constructors with rank below com- 
 mander." (See note to sec. 1402, R. S.) The 
 permanent rank of rear admiral on the active list 
 in special cases was previously authorized in 
 the Construction Coi-ps by act of June 24, 1910 
 (36 Stat., 607), which provided that chiefs of 
 bureaus eligible for retirement after 30 years' 
 service should be entitled to the permanent 
 rank, title, and emoluments of a chief of bu- 
 
 reau, while on the active list, the same as they 
 would have received if retired for age or length 
 of service; this pro.ision was repealed by act 
 of August 22, 1912 (37 Stat., 328), which con- 
 tained a pro dso that no officer who had received 
 the benefits of the act of 1910 should be deprived 
 thereof on accoimt of such repeal; prior to its 
 repeal one officer of the Construction Corps, 
 Chief Constractor Washington L. Capps, had 
 been permanently commslsioned with the rank 
 of rear admiral (see note to sec. 421, R. S., 
 under " Rank of chiefs of bureaus "). 
 
 See sections 1402-1404, Revised Stat- 
 utes, and notes thereto, concerning the organi- 
 zation of the Construction Corps, and appoint- 
 ments, promotions, etc., therein. 
 
 Historical note. — See note to section 1474, 
 Revised Statutes. 
 
 Advancement in rank and promotion of 
 staff officers. — See note to section 1480, 
 Revised Statutes. 
 
 By act of August 29, 1916 (39 Stat., 576), it 
 was provided that "officers of the lower grades 
 of the * * * Construction Corps, _ * * * 
 shall be advanced in rank up to and including 
 the rank of lieutenant commander with the 
 officers of the line with whom or next after 
 whom they take precedence under existing 
 law. " 
 
 By act of July 1, 1918 (40 Stat., 718), it was 
 provided that the advancement of staff officers 
 of the Navy to the ranks of commander, cap- 
 tain, and rear admiral shall be by selection in 
 the maimer therein provided. 
 
 Examinations were discontinued for promo- 
 tion of staff officers in giade by act of May 22, 
 1917, section 20 (40 Stat., 89), which act and 
 
 677 
 
Sec. 1478. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 section also reeiiactod a ])rovi8ion in the act of 
 March 4, 1917 (3i) Stat.. 1182). roquirin? exami- 
 nations of staff officers for advancement in rank. 
 Rank of naval constructors held to be 
 their grade. — Naval constructors belong to 
 the staff; nevertheless they have been treated 
 as eligible under section 42.3, Revised Statutes, 
 for apjiointment as Chief of the Bureau of Con- 
 str.ution and Repair, which section provided 
 that the chief of the bureau shall be appointed 
 from the list of othcers of the Navy "not below 
 the grade of commander. " and sliall be a skill- 
 ful naval constnictor. Thus under the prac- 
 
 tical inter])rotation of section 42.3. naval con- 
 structors are treated as officers of the Navy, and 
 their relative rank as the actual rank or grade 
 required by the section; but itia to be observed 
 that in no other way could compliance be had 
 Avith the explicit requirement that the officer 
 appointed Chief of the Burea\i of Construction 
 and Repair bo a " skillfid naval constructor. " 
 Faults in expression were disregarded in order 
 to carry out the manifest intention of the law- 
 maker." (22 Op. Atty. Gen., 47. As to dif- 
 ference between rank and grade, see notes to 
 sees. 421, 422, 423, 1362, 14.57, and 1479, R. S.) 
 
 Sec, 1478. [Civil engineers. Superseded.] 
 
 This section provided as follows: 
 
 " Sec. 1478. Civil engineers shall have such 
 relative rank as the President may fix."— (3 
 Mar., 1871, c. 117, s. 9, v. 16, p. 536.) 
 
 It was amended by act of Marcn 3, 1899, 
 section 7 (30 Stat., 1006), which changed the 
 words, "the relative rank of," as contained in 
 all sections of the Revised Statutes defining the 
 rank of officers or positions in the Navn'. to read, 
 "the rank of"; and by act of March 3, 1903 (32 
 Stat., 1197), which provided for the appoint- 
 ment of 12 assistant civil engineers, "of whom 
 six shall have the rank of lieutenant (junior 
 grade) and six the rank of ensign." 
 
 It was superseded by act of August 29, 
 1916 (39 Stat., 577). which created the rank of 
 rear admiral for civil engineers, in addition to 
 the ranks theretofore authorized, the distribu- 
 tion to be "one-half civil engineers with the 
 rank of rear admiral to five and one-half civil 
 engineers with the rank of captain, to fourteen 
 civil engineers with the rank of commander, to 
 eighty civil engineers and assistant civil engi- 
 neers with the rank below commander." The 
 permanent rank of rear admiral on the active 
 list of the Civil Engineer Corps had previously 
 been authorized for the benefit of Commander 
 H. H. Rousseau by act of March 4, 1915 (38 
 Stat., 1191), which same act also extended the 
 thanks of Congress to said officer for distin- 
 guished service rendered by him as a member 
 of the Isthmian Canal Commission in construct- 
 ing the Panama Canal. 
 
 By act of March 4, 1917 (39 Stat., 1184), it was 
 provided that "officers of the Corps of Civil 
 Engineers hereafter appointed shall, from the 
 date of their original appointment, take rank 
 and precedence with lieutenants (junior 
 grade)." 
 
 See note to section 1413, Revised 
 Statutes, as to organization of Civil Engineer 
 Corps, and appointments, promotions, etc., 
 therein. 
 
 Advancement in rank and promotion of 
 staff officers. — See note to section 1480, 
 Revised Statutes. 
 
 By act of August 29, 1916 (39 Stat., 576), it 
 was provided that "officers of the lower grades 
 of the * * * Corps of Civil Engineers shall 
 be advanced in rank up to and including the 
 rank of lieutenant commander with the officers 
 
 of the line ^vith whom or next after whom they 
 take precedence under existing law." 
 
 By act of July 1, 1918 (40 Stat., 718), it was 
 provided that the adv^ancement of staff officers 
 of the Navy to the ranks of commander, cap- 
 tain, and rear admiral shall be by selection in 
 the manner therein provided. 
 
 By act of March 3, 1903 (32 Stat., 1197), it 
 was provided that "promotions in the Corps of 
 (ivil Engineers shall be after such examina- 
 tion as the Secretary of the Navy may pre- 
 scribe." Examinations were discontinued for 
 promotion of staff officers in grade by act of 
 May 22, 1917, section 20 (40 Stat., 89), which 
 act and section also reenacted a provision in 
 the act of March 4, 1917 (.39 Stat., 1182), requir- 
 ing examinations of staff officers for advance- 
 ment in rank. 
 
 Historical note. — See note to section 1474, 
 Revised Statutes. 
 
 By section 1478, Revised Statutes, which is a 
 reenactment of the statute of March 3, 1871, 
 "civil engineers shall have such relative rank 
 as the President may fix." An examination 
 of the original statute shows that the authority 
 was given to the President "in his discretion." 
 This discretion has never been exercised and 
 no relative rank has been assigned to these 
 officers. It is difficult to conceiv-e that those 
 can be considered as officers in the Navy who 
 have no rank by which their relation to the 
 other officers, or to the men, can be determined. 
 In the absence of stich action by the President 
 Held that civil engineers are civil officers. 
 (16 Op. Atty. Gen., 203.) 
 
 The authority of the President under the 
 act of March 3, 1871 (sec. 1478, R. S.)_, '/to de- 
 termine and fix the relativ^e rank of civil engi- 
 neers," was not exercised until February 24, 
 1881, when their rank was fixed by him as 
 follows: One with the relativ-e rank of captain, 
 two ^\ith the relative rank of commander, three 
 with the relative rank of lieutenant commander, 
 and four with the relative rank of lieutenant, 
 which action was promulgated by a general 
 order issued by the Secretarv on that date. 
 (17 Op. Atty. Gen., 126, holding that civil 
 engineers are officers of the Navy and eligible 
 for retirement as such. The general order 
 referred toisG. O. No. 263, Feb. 24, 1881.) 
 
 F'or other cases as to status of civil engineers, 
 see note to section 1413, Revised Statutes. 
 
 678 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1479. 
 
 Sec. 1479. [Chaplains. Superseded.] 
 
 This section provided as follo-ws: 
 
 "Sec. 1479. Chaplains shall have relative 
 rank as follovi's; Four, the relative rank of cap- 
 tain; seven, that of commander; and not more 
 than seven, that of lieutenant-commander or 
 lieutenant."— (3 Mar., 1871, c. 117, s. 9, v. 16, 
 p. 536.) 
 
 It was amended by act of March 3, 1899, 
 section 7 (30 Stat., 1006), which changed the 
 words "the relative rank of" to read "the 
 rank of " ; by section 13 of the same act ( 30 Stat. , 
 1007), which provided that "naval chaplains, 
 who do not possess relative rank, shall have the 
 rank of lieutenant in the Navy"; and by act 
 of June 29, 1906 (34 Stat., 554), which provided 
 that "naval chaplains hereafter appointed shall 
 have the rank, pay, and allowances of lieu- 
 tenant (jimior grade) in the Na\'y until they 
 shall have completed seven years of sei'vice, 
 when they shall have the rank, pay, and allow- 
 ances of lieutenant in the Navy ; and lieutenants 
 shall be promoted, whenever vacancies occur, 
 to the grade of lieutenant commander, which 
 shall consist of five numbers, and when so pro- 
 moted shall receive the rank, pay, and allow- 
 ances of lieutenant commander in the Navy: 
 Provided further, That nothing herein contained 
 shall be held or construed to increase the nmn- 
 ber of chaplains as now authorized by law or to 
 reduce the rank or pay of any now serving." 
 
 It was superseded by act of June 30, 1914 
 (38 Stat.,_ 404), which fixed the '^ total number 
 of chaplains and acting chaplains in the Navy, ' ' 
 and provided that ' ' of the total number of chap- 
 lains and acting chaplains herein authorized 
 ten per centum thereof shall have the rank of 
 captain in the Navy, twenty per centum the 
 rank of commander, twenty per centum the 
 rank of lieutenant commander, and the remain- 
 der to have the rank of lieutenants and lieu- 
 tenants, junior grade." 
 
 The same act (38 Stat., 403, 404) provided 
 that "while so ser\ang acting chaplains shall 
 have the rank, pay, and allowances of lieuten- 
 ant, junior grade, in the Navy. After three 
 years' sea service on board ship each acting 
 chaplain before receiving a commission in the 
 Navy shall establish to the satisfaction of the 
 Secretary of the Navy by examination by a 
 board of chaplains and medical officers of the 
 Navy hie physical, mental, moral, and profes- 
 sional fitness to perform the duties of chaplain 
 in the Navy, and if found so qualified, shall 
 be commissioned a chaplain in the Navy with 
 the rank of lieutenant, junior grade. * * * 
 Naval chaplains hereafter commissioned from 
 acting chaplains shall have the rank, pay, and 
 allowances of lieutenant, junior grade, m the 
 Navy until they shall have completed four 
 years' sei^dce in that grade, when, subject to 
 examination as above prescribed, they shall 
 have the rank, pay, and allowances of lieu- 
 tentvut in the Navy, and chaplains with the 
 rank of lieutenant shall have at least four years' 
 service in that grade before promotion to the 
 grade of lieutenant commander, after which 
 service, chaplains shall be promoted as vacan- 
 cies occur to the grades of lieutenant com- 
 mander, commander, and captain." 
 
 The same act (38 Stat., 404) pro\'ided "that 
 no provision of this section shall operate to 
 reduce the rank, pay, or allowances that would 
 have been received by any person in the Navy 
 except for the passage of this section, and that 
 all laws or parts of laws inconsistent with the 
 provisions of this section be, and the same are 
 hereby, repealed." 
 
 Advancement in rank and promotion of 
 chaplains. — See note to section 1480, Ile\ised 
 Statutes. 
 
 By act of July 1, 1918 (40 Stat., 718), it was 
 provided that the advancement of staff officers 
 of the Navy to the ranks of commander, captain, 
 and rear admiral shall be by selection in the 
 manner therein provided. 
 
 Examinations were discontinued for pro- 
 motion of staff ofiicers in grade by act of May 
 22, 1917, section 20 (40 Stat., 89), which act 
 and section also reenacted a provision in the act 
 of March 4, 1917 (39 Stat., 1182), requiring 
 examinations of staff officers for advancement 
 in rank. 
 
 Chaplains with the rank of lieutenant and 
 chaplains with the rank of lieutenant (junior 
 grade) advanced since June 30, 1914 to the rank 
 of lieutenant shall not be advanced in rank to 
 lieutenant commander untO they have served 
 at least four years with the rank of lieutenant; 
 except that this requirement of a minimum of 
 four years' ser\ice with the rank of lieutenant 
 shall not operate to reduce the rank, pay or 
 allowances that would have been received by 
 any person in the Na\y except for the passage 
 of the section relating to chaplains in the act of 
 June 30, 1914. This prohibition as to promo- 
 tion being retarded applies only to those chap- 
 lains in the service on June 30, 1914. (File 
 15721-7, Aug. 13, 1914.) 
 
 Naval chaplains commissioned after June 30, 
 1914, from acting chaplains, after at least four 
 years' serAice in the rank of lieutenant shall be 
 promoted to the rank of lieutenant commander, 
 subject to the restrictions placed on the number 
 of ofiicers in the Corps of Chaplains who may 
 have the rank of Lieutenant commander. 
 Thereafter they are promoted to the higher 
 authorized ranks aa vacancies occur therein 
 without restriction as to the period of service in 
 the intervening ranks before such advance- 
 ments. (File 15721-7, Aug. 13, 1914.) 
 
 The act of June 30, 1914, makes no proAision 
 for the advancement of chaplains with the 
 rank of lieutenant (junior grade) who were in 
 the ser\ice on that date; the requirement of 
 four years' ser\ice in the grade of chaplain with 
 the rank of lieutenant (junior grade) applies 
 only to those chaplains thereafter commissioned 
 from acting chaplains. Said act, however, 
 provides for the advancement of chaplains with 
 the rank of lieutenant without regard to the 
 date of their appointment as such. The 
 advancement of chaplains with the rank of 
 lieutenant (junior gi-ade) in the serA-ice on June 
 30, 1914, is governed by the proAisions of the 
 laws in force prior to that date, which are not 
 modified in this respect by the said act of June 
 30, 1914. The pro\ision that nothing in said 
 enactment shall operate to reduce the rank, 
 
 679 
 
Sec. 1480. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 etc., that would have been received by any 
 person in the NaAy except for the passage there- 
 of ])revents advancement from being retarded, 
 but does not pro^^de for accelerating advance- 
 ment in rank to lieutenant in their cases. In 
 other words, Oiey are requii'cd lo serve seven 
 years as cliaplain with the rank of lieutenant 
 (junior grade), as required by the act of Jime 29, 
 1906, before being advanced in rank to lieuten- 
 ant. (File 15721-7, Aug. 13, 1914.) 
 
 The reqiiirement of four years' service with 
 the rank of lieutenant prior to advancement to 
 the rank of lieutenant commander is not waived 
 in order that vacancies created by reason of the 
 passage of the act of June 30, 1914, may be im- 
 mediately tilled, but it is waived where its 
 effect would be to delay promotions that woidd 
 have been made iiTespective of that act, such as 
 to fill vacancies created by death, resignation or 
 retirement of officers occupying the limited 
 number of positions. (File 15721-7, Aug. 13, 
 1914.) 
 
 Chaplains with the rank of lieutenant com- 
 mander in the service on June 30, 1914, are 
 advanced in rank to commander and captain as 
 vacancies occur in those ranks, without regard 
 to length of ser\'ice with the rank of commander 
 or lieutenant commander. (File 15721-7, Aug. 
 13, 1914.) 
 
 The requirement of fovu" years' service in 
 the grade of chaplain with the rank of lieuten- 
 ant before promotion to the grade of chaplain 
 with the rank of lieutenant commander, should 
 not be held to retard the promotion of chaplains 
 in the serAice on June 30, 1914, who have com- 
 pleted seven years in the rank of lieutenant 
 (junior grade), as required by the act of June 
 29, 1906, such promotion being to fill vacancies 
 in the higher ranks in the grade of chaplain; 
 because the act of June 30, 1914, provides that 
 no pro\'ision thereof shall operate to reduce the 
 rank, pay or allowances that might have been 
 received by any person in the I^&yj except for 
 the passage of the chaplain section therein. 
 However, a chaplain would not be entitled to 
 promotion to any rank above that of lieutenant, 
 even after four years' service as a lieutenant, 
 unless a vacancy occmred in the higher rank. 
 Although the act of August 29, 1916, changed 
 the retiiing age from 62 to 64 years, and if this 
 had not been done a vacancy would have been 
 created by the retirement of a chaplain for age 
 upon his reaching 62 years, nevertheless the 
 
 Sec. 1480. [Professors of Mathematics. Promotions in staff corps.] Pro- 
 fessors of mathematics shall have relative rank as follows : Tliree, the relative 
 rank of captain; four, that of commander; and five, that of lieutenant-com- 
 mander or lieutenant. [The grades established in the six preceding sections 
 for the staff corps of the Navy shall be filled by appointment from the 
 highest members in each corps, according to seniority; and new commis- 
 sions shall be issued to the officers so appointed, in which the titles and 
 grades established in said sections shall be inserted; and no existing com- 
 mission shall bo vacated in the said several staff coi'ps, except by the issue of 
 the new commissions required by the provisions of this section; and no officer 
 shall be reduced in rank or lose seniority in his own corj^s by any change 
 
 proxision in said act of August 29, 1916, that 
 "nothing contained in this act shall be con- 
 strued to reduce the rank, pay, or allowances of 
 any officer in the Navy or Marine Corps as now 
 pro"vided by law,'' does not entitle a junior ofl^- 
 cer to promotion in rank which he would ha^'e 
 received had the senior officer been retiied for 
 age at 62 years. Onthedateof said act of August 
 29, 1916, the chaplain in question had the rank, 
 pay, and allowances of lieutenant, noneof which 
 has been reduced by the operation of said act. 
 The act of August 29, 1916, changing the retire- 
 ment age, may have operated to retard his ad- 
 vancement by delaying the retirement of the 
 senior chaplain for age, but it did not operate to 
 reduce the rank, pay, and allowances to which 
 he was then or is now entitled by law. Accord- 
 ingly, held that the chaplain in question is not 
 entitled to promotion to the rank of lieutenant 
 commander, and -will not be entitled to such ad- 
 vancement until after a vacancy occurs in said 
 rank for which he qualifies on examination as 
 required by section 20 of the act of May 22, 1917. 
 (File 15721-20, Sept. 24, 1918.) 
 
 "Grade" and "rank" in the Chaplain 
 Corps. — The word "grade" as used in the 
 act of June 30, 1914, is an obvious error. There 
 are but two gi'ades in the Corps of Chaplains; 
 first, the gi'ade of chaplain, in which officers are 
 distributed in the "ranks" of captain, com- 
 mander, lieutenant commander, lieutenant, 
 and lieutenant (junior gi'ade); and secondly, 
 the grade of acting chaplain, in which the offi- 
 cers have the "rank" of lieutenant (junior 
 grade). It is necessary to read the word 
 "grade" as "rank" in said act in order to con- 
 form to the well-established meaning and usage 
 of the words "grade" and "rank." (File 
 15721-7, Aug. 13, 1914. For other cases con- 
 cerning "rank" and "grade" see notes to sees. 
 421, 422, 423, 1362, 1457, 1477, and 1480, R. S.) 
 
 Pay of chaplains. — See act of August 29, 
 1916 (39 Stat., 581), pro^dding that "hereafter 
 all commissioned officers of the active list of the 
 active list of the Navy shall receive the same 
 pay and allowances according to rank and 
 length of serAdce." It had pre^vdously been 
 provided by act of May 13, 1908 (35 Stat., 128), 
 that "the pay and allowances of chaplains in 
 the NaA'y shall in no case exceed that provided 
 for lieutenant commanders." The pay of the 
 various ranks in the Navy is proAdded for by act 
 of May 13, 1908 (53 Stat. , 127). See note to sec- 
 tion 1556, Revised Statutes. 
 
 680 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1480. 
 
 which may be required under the provisions of the said six preceding sections : 
 Provided, That the issuing of a new appointment and commission to any officer 
 of the pay corps under the provisions of this section shall not affect or annul 
 any existing bond, but the same shall remain in force, and apply to such new 
 appointment and commission.] — (31 May, 1872, c. 240, s. 1, v. 17, p. 192. 27 
 Feb., 1877, c. 69, v. 19, f. 244.) 
 
 Army. The motion was decisively defeated 
 (citing Ferrand Records, Federal Convention, 
 Vol. II, p. 405). "Argument is unnecessary to 
 demonstrate how idle it would have been to 
 have conferred the power on the President if, 
 in practice, it might have been taken from him 
 by statute, as would be the case if section 1480, 
 as amended, were to be applied. (Hamilton 
 in the Federalist, No. 76; Story on the Consti- 
 tution, Vol. II, sees. 1526-1533; and Judge 
 Cooley's note to the last section.) Moreover 
 the alleged right to a statutory promotion 
 could never be enforced by mandamus or in- 
 junction, if the President should refuse to nom- 
 inate, or the Senate should refuse to confirm 
 the senior officer. " (31 Op. Atty. Gen., 80.) 
 
 The provisions of section 1480, Revised Stat- 
 utes, as amended, considered, and AeZrf(]) that 
 advancement of staff officers in the Medical, 
 Pay, and Construction Corps, and Corps of Civil 
 Engineers, from the rank of captain to the rank 
 of rear admiral, may be made upon selection 
 by the President, whether or not such advance- 
 ment be regarded as an advancement in rank 
 only, or as an advancement in grade; and (2) 
 that the promotion of all staff officers of tne 
 Navy to higher offices may be made upon selec- 
 tion by the President. (31 Op. Atty. Gen., 80. 
 Note that this opinion was rendered by the 
 Attorney General prior to the act of July 1, 
 1918, above cited, authorizing promotion by 
 selection to certain higher ranks in the staff 
 corps.) 
 
 For other cases, see note to section 1458, Re- 
 vised Statutes; and see cases noted under Con- 
 stitution, Article II, section 2, clause 2, "III. 
 Power of Congress," and "IV. Statutory re- 
 quirements and qualifications;" see also note 
 to section 1372, Revised Statutes, "Promotion 
 by seniority and not competitive examination. " 
 
 Amendment to this section as originally em- 
 bodied in the Revised Statutes was made 
 by act of February 27, 1877 (19_Stat., 244), 
 which added thereto the portion printed 
 in brackets above, and which in this form 
 was embodied in the second edition of the 
 Revised Statutes. (See "Introduction," 
 ante, under "II.The Revised Statutes.") 
 Amendment to this section was also made by 
 act of March 3, 1899, section 7 (30 Stat., 
 1006), which changed the words, "the rel- 
 ative rank of," to read, "the rank of;" 
 and by act of August 29, 1916 (39 Stat., 
 577), which provided that "hereafter no 
 fm-ther appointments shall be made to the 
 Corps of Professors of Mathematics, and 
 that corps shall cease to exist upon the 
 death, resignation, or dismissal of the of- 
 ficers now carried in that corps on the ac- 
 tive and retii-ed lists of the Na\^. " 
 By act of July 1, 1918 (40 Stat., 718), it was 
 provided that the advancement of staff of- 
 ficers of the Navy to the ranks of comman- 
 der, captain, and rear admiral, shall be by 
 selection in the manner therein provided. 
 Examinations were discontinued for pro- 
 motion of staff officers in grade by act of 
 May 22, 1917, section 20 (40 Stat., 89), 
 which act and section also reenacted a 
 provision in the act of March 4, 1917 (39 
 Stat., 1182), requiring examinations of 
 staff officers for advancement in rank. 
 "Pay Corps " is to be called the "Supply Corps, " 
 by act of July 11, 1919 (41 Stat., 147). As 
 to bonds of officers in the Supply Corps, see 
 note to section 1383, Revised Statutes. 
 See notes to sections 1399-1401, Revised Stat- 
 utes, concerning organization of Corps of 
 Professors of Mathematics, duties of profes- 
 sors of mathematics, etc. 
 Constitutionality of amended, section 
 1480. — Section 1480 as amended being appli- 
 cable to advancement from grade to grade in the 
 staff corps, it seems plain that Congress sought 
 thereby to restrict the President to the nomina- 
 tii:)n of a single person of its own choosing, and 
 this without regard to his comparative fitness 
 for the larger responsibilities of the higher of- 
 fice. The attempt so to do is in opposition to 
 that provision of the Constitution (Art. II, sec. 
 2), requiring him to nominate and by and with 
 the adviceandconsentof the Senate to appoint. 
 (31. Op. Atty. Gen., 80, citing and affirming 30 
 Op. Atty. Gen., 177 and 29 Op. Atty. Gen., 254.) 
 The President's power in regard to appoint- 
 ments and the Senate's check thereon was ex- 
 haustively canvassed in the Constitutional Con- 
 vention. It was at one time moved that his 
 power be restricted to "those cases not other- 
 wise proAdded for by this Constitution or by 
 law. " The very ground urged in support of 
 the motion was that otherwise the President 
 would be given too much control over the 
 
 'Grades established," meaning of. — 
 
 The reference in section 1480 to "the gi'ades 
 established" in the six preceding sections for 
 the staff corps of the Navy is the identical 
 language of the ninth section of the act of March 
 3,_ 1871 (16 Stat., 536), which refers to the pre- 
 vious sections of that act in which grade and 
 relative rank in the staff department of the 
 Na\'y are created together uno fiatu; whereas 
 in the Revised Statutes the two subjects are 
 treated in distinct chapters. Tliis effectually 
 disposes of the argument that there was any 
 establishing of grades in the sections assigning 
 relative rank; the mistake of the revisers in 
 using the expression, "grades established,'' 
 being too evident to admit of doubt. Accord- 
 ingly, held that in the organization of the ]\led- 
 ical Corps of the Navy there is no such grade as 
 passed assistant siu'geon, but tliat passed 
 assistant surgeon is merely a class in the grade 
 of assistant surgeon, notwithstanding that 
 section 1480 as amended refers to "grades 
 established" in the six preceding sections, and 
 
 681 
 
Sec. 1480. 
 
 Pi. 2. REVISED STATUTES. 
 
 The Navy. 
 
 tliat section 1474 pro\'ides for passed assistant 
 surgeons with tho relative rank of "lieutenant 
 or master." (19 Op. Atty. Gen., 109; see note 
 to sec. 1368, R. S.,. as to status of passed assistant 
 surgeons.) 
 
 Bank of rear admiral in the staff corps 
 not a new "grade." — ^The act of August 29, 
 1916 (39 Stat., o77), proA-iding for the rank of 
 rear admiral in certain staff corps of the Navy, 
 is regarded as creating a new rank of rear 
 admiral within the old grade of, e. g., medical 
 director, rather than as creating a now grade 
 of, e. g., "medical director ^vith the rank of 
 rear admiral." Accordingly, section 1480, 
 Re^^8ed Statutes, as amended, because in terms 
 api)licable to such old grade, would apply to 
 advancement thereto from a lower grade. 
 (31 Op. Atty. Gen., 80, noted above, holding 
 imconstitutional the requirement that promo- 
 tions be made by seniority.) 
 
 The act of August 29, 1916 (39 Stat., 577), 
 did not create new grades. The words in that 
 act, "the total number of commissioned officers 
 * * * shall be distribiited in the various 
 grades," etc., while apt for distribution among 
 existing, are inapt for the creation of new 
 grades. (31 Op. Atty. Gen., 80.) 
 
 In each of the 16 different grades created by 
 sections 1474-1479, inclusive, there was a sepa- 
 rate and distinctive word title for each. Had 
 the purpose been to create a new grade in the 
 act of 1916, a new word title other than, e. g., 
 "medical director," such as, for example, 
 "siu-geon general," would have been used. 
 (31 Op. Atty. Gen., 80.) 
 
 Advancement in rank without change of 
 grade. — Section 1480, Revised Statutes, being 
 limited to grade can not affect advancement in 
 rank; and because it is limited to those grades 
 established by sections 1474-1479, Rexdsed 
 Statutes, it can not affect advancement in the 
 staff corjjs from captain to rear admiral. (31 Op. 
 Atty. Gen., 80.) 
 
 \\Tienever Congress creates a new grade or 
 rank, without making any provision for filling 
 it, the selection, in the case of a vacancy in 
 grade, is made by the President by and with 
 the ach-ice and consent of the Senate (citing 
 29 Op. Atty. Gen., 117); while in the case of a 
 vacancy in rank, it is made by the President 
 as commander in chief of the Navy, without 
 any action on the part of the Senate. (Citing 
 Gen. Ainsworth's case, 22 Op. Atty. Gen., 480.) 
 Neither in the act of August 29, 1910, nor in 
 the old law is there any provision for advance- 
 ment from the rank of captain to that of rear 
 admiral in any of the various staff corps; and 
 the function of selection in every such case 
 must be exercised by the President alone under 
 the rule stated. (31 Op. Atty. Gen., 80.) 
 
 Under section 1480, as amended, it is not 
 necessiiry to issue new commissions or appoint- 
 ments to staff officers receiving an advance in 
 rank within the same grade; the rank of such 
 officers changes with their seniority in grade, 
 and as they hold the same office, such change 
 in rank may be indicated by a notification 
 from the Secretaiy of the Navy. (20 Op. Atty. 
 Gen., 358; see also 10 Op. Atty. Gen., 652; and 
 see note to Constitution, Art. II, sec. 3, under 
 "II. Duty to commission officera.") 
 
 The law rcqiures that commissions shall be 
 issued to officers ai)j)ointed or promoted to 
 different offices or grades in the Pay Corps of 
 the Navy, but there is no law wliich requires 
 a commission to be issued on mere change of 
 rank without change of office (citing 20 Op. 
 Atty. Gen., 358, 363). The mere advancement 
 in rank without a change in office does not 
 create an office and is not accomplished by an 
 exercise of the appointing power. (17 Comp. 
 Dec, 255.) 
 
 In the absence of a specific law for the 
 advancement of a pajTnaster_ of the Navy 
 from one rank to another within the grade of 
 payrnaster, such advancement is primarily 
 within the discretion of the Executive, limited 
 by the rule of seniority (sec. 1480) and subject 
 to the consent of the Senate (sec. 1506, amend- 
 ed). This discretion has been exercised under 
 a rule of many years' practice in determining 
 the date when such officer attains a higher rank 
 by the laws providing for precedence of officers 
 of the line and staff corps (sees. 1485, 1486). 
 The staff officer takes precedence next below 
 a certain line officer of the same credited 
 service. This line officer is known in the 
 service as the staff officer's "running mate"; 
 and by the practice referred to when the "run- 
 ning mate" is regularly promoted or fails in 
 examination the staff officer is advanced to the 
 higher rank. When the date for advancement 
 of a paymaster with the rank of lieutenant to 
 the rank of lieutenant commander has been 
 determined by the rule aforesaid and his 
 advancement to that rank on the date ascer- 
 tained has been consented to by the Senate, he 
 becomes entitled to the pay and emoliunents 
 of the higher rank from the date he so took 
 rank. (16 Comp. Dec, 662; see also 17 Comp. 
 Dec. , 255. Compare note to sec. 1485, and note 
 to Constitutionj Art. II, sec. 3, under "II. 
 Duty to commission officers.") By act of 
 August 29, 1916 (39 Stat., 576), itwasprovided 
 that "officers of tne lower grades of the Medical 
 Corps, Pay Corps, Construction Corps, and 
 Corps of Civil Engineers shall be advanced 
 in rank up to and including the rank of lieu- 
 tenant commander mth the officers of the line 
 with whom or next after whom they take pre- 
 cedence under existing law"; and by act of 
 Julyl,1918 (40 Stat, 718), itwasprovided that 
 the advancement of staff officers of the Navy to 
 the ranks of commander, captain, and rear 
 admiral shall be by selection in the manner 
 therein provided. 
 
 Advancement in rank of professors of 
 mathematics. — There is no statute which 
 limits the discretion of the Executive with 
 regard to the division of the five junior officers 
 of the Corps of Professors of Mathematics be- 
 tween the grades of lieutenant commander and 
 lieutenant. If the President deems it appro- 
 priate to nominate one or more of the profes- 
 sors of mathematics of the Navy now com- 
 missioned in the grade of lieutenant to be com- 
 missioned in the grade of lieutenant com- 
 mander, it is entirely within his discretion so to 
 do. (Op. Atty. Gen., Mar. 2, 1909, file 26289- 
 5a, following 26 Op. Atty. Gen., 511, noted 
 imder sec 1376, R. S., in which it was 
 held, with reference to the Pay Corps, that 
 where the law fixes an aggregate number 
 
 682 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1480. 
 
 of officers, in two grades, without provid- 
 ing for the distribution of such officers be- 
 tween said grades, the number to be ap- 
 pointed in each of the two grades is necessarily 
 left to Executive discretion, to be controlled 
 by the general laws and regulations providing 
 for the advancement of officers in the naval 
 service. See also file 26289-9, Mar. 30, 1912.) 
 
 "Grade," "rank," and "title" in staff 
 corps. — ^^^lile "gi'ade' ' has the same meaning 
 as "office," "rank" is merely a classification 
 to fix the position of officers with respect to other 
 officers in the same or in other grades as to com- 
 mand, precedence, privilege, or pay. " Rank " 
 may be conferred by mere notification and 
 without either examination, confirmation, or 
 commission (Gen. Wood's case, 15 Ct. Cls., 151, 
 159; Wood v. U. S., 107 U. S., 414; 20 Op. Atty. 
 Gen., 358, 362, 363; 19 Op. Atty. Gen., 169; 27 
 Op. Atty. Gen., 376); so also while "grade" is 
 only partiallv, ' ' rank "is wholly, within the con- 
 trol of Congress (Wood v. U. S., 107 U. S., 414, 
 417; Senate Rep. 2163, 38th Cong., 2d sess.). 
 (31 Op. Atty. Gen., 80.) 
 
 The naval appropriation act of March 3, 1871 
 (16 Stat., 535-538), reorganized to some extent 
 the staff corps of the Navy. As to the Medical 
 Corps it provided, for example, for "medical 
 directors who shall have the relative rank of 
 captain, " as to the Engineer Corps, for example, 
 "chief engineers who shall have the relative 
 rank of captain," "chief engineers who shall 
 have the relative rank of commander. ' ' Of the 
 naval constructors it said "two shall have the 
 relative rank of captain, three of commander, 
 and all others that of lieutenant commander or 
 lieutenant." Section 10 then provided: "That 
 the foregoing grades hereby established for the 
 staff corps of the Navy, shall be filled_ by ap- 
 pointment from the highest numbers in each 
 corps according to seniority, and that new com- 
 missions shall be issued to the officers so ap- 
 pointed, in which commissions the titles and 
 grades herein established shall be inserted. 
 Here we have created offices of, for example, 
 "medical directors," "pay inspectors, ""chief 
 engineers," "naval constructors," with no 
 provision for their position in the general 
 scheme of the Navy, unless the added words, 
 for example, "with the relative rank of cap- 
 tain" cover this omission. We then have the 
 reference in section 10 to the foregoing estab- 
 lishment as one of "grades" and "titles" 
 which must be specified in the commission. 
 What "grades" and "titles" are referred to? 
 It is clear both as a matter of common sense 
 and of authority that the "grades" referred to 
 in section 10 of the act of March 3, 1871, are, 
 for example, "pay directors with the rank of 
 captain," "chief engineers with the rank of 
 commander," "chief engineers with the rank 
 of lieutenant commander," etc. (31 Op. Atty. 
 Gen., 505, 513.) 
 
 Previous Attorneys General have held with 
 respect to the phrases corresponding to "medi- 
 cal director with the rank of rear admiral," 
 that the first two words represent the title to the 
 office, while the latter words merely give it 
 rank (citing 10 Op. Atty. Gen., 377; 20 Op. 
 Atty. Gen., 358, reversing 16 Op. Atty. Gen:, 
 414, 417; 28 Op. Atty. Gen., 429, 526; Op. Atty. 
 
 Gen., Mar. 15, 1911, file 22724-16:3). (31 Op. 
 Atty. Gen., 80.) 
 
 The grade of chief engineer ia one grade; they 
 hold the same office; their relative rank among 
 the chief engineers changes with their seniority 
 in that grade, but the office of chief engineer 
 remains the same. It is clear that the mere fact 
 that different relative rank is assigned to officers 
 whose office is designated by the same title does 
 not necessarily put such officers in different 
 grades. (20 Op. Atty. Gen., 358, explaining 
 16 Op Atty. Gen., 414.) 
 
 Section 1475, Revised Statutes, does not give 
 to a pay inspector the grade of commander. It 
 confers upon him the rank of commander by 
 relation only to the rank of a line officer of that 
 grade. By the use of the terms, "relative 
 rank," in that section. Congress intended to 
 make the grades of the Pay Corps of the Navy 
 equal to, but not identical with, the grades of 
 the line with which they are Ijy those terma 
 associated. As generally used in reference to 
 the naval and military service, the word ' ' title " 
 signifies the name by which an office or the 
 holder of an office is designated and distin- 
 guished, and by which the officer has a right to 
 be addressed; "grade" one of the divisionsor 
 degrees in the particular branch of the service 
 according to which officers therein are arranged; 
 and "rank" the position of officers of different 
 grades or of the same grade, in point of author- 
 ity, precedence, or the like, of one over another. 
 Sometimes "rank " is used as synonymous with 
 "CTade," and the title of an officer, for example, 
 admiral, vice admiral, etc., may denote both 
 his grade and his rank. The designation, ' ' pay 
 inspector," expressed both title and grade in 
 the Pay Corps. Held, that a commission in the 
 folloAving form, "John Doe, a pay inspector 
 
 from the day of , A. D. 187 — , 
 
 with the relative rank of commander," gives 
 the appropriate title and grade of the officer 
 named therein, and fully satisfies the require- 
 ment of section 1480, Revised Statutes. (16 Op. 
 Atty. Gen., 414.) 
 
 A commission gives the officer, by the words 
 "pay inspector," the title and grade to which 
 he has a right. The addition of the relative 
 rank, while not positively required by the 
 statute, is eminently appropriate. Especially 
 is this the case in view of the fact that, with 
 reference to certain officers of the staff corps, 
 this would be necessary, as their grade would 
 be determined by the addition of their relative 
 rank. (16 Op. Atty. Gen., 414, citing sees. 
 1390 and 1476, R. S.) 
 
 The act of August 29, 1916 (39 Stat, 577), 
 makes reference to the "grade of assistant 
 surgeon," showing that the title of the grade 
 was "assistant surgeon" and that the added 
 words in section 1474, "the relative rank of 
 master or ensign," were no part of the defini- 
 tion of the grade but merely a classification 
 within it. (31 Op. Atty. Gen., 80.) 
 
 The rank conferred upon professors of math- 
 ematics by section 1480, Revised Statutes, does 
 not confer upon them the corresponding grade. 
 A professor of mathematics with the rank of 
 captain, placed on the retired list with the rank 
 of rear admiral on account of ci\dl war service 
 (act Mar. 3, 1899, sec. 11, 30 Stat., 1007), held 
 at the time of his retirement the grade of pro- 
 
 54641°— 22- 
 
 -44 
 
 683 
 
Sec. 1480. 
 
 Pt.S. REVISED STATUTES. 
 
 The Navy. 
 
 fessor of mathematicB and not the grade of 
 captain. (U^ Coinp. Dec, 211.) 
 
 Tlie grade of an officer in the Navy is his 
 otlicial station, by ^vhich are regulated his 
 powers, duties, and pay. His pay may he 
 further governed hy his time of service within 
 a grade, either in fact rendered within the 
 grade, or constructively performed therein 
 through the force of statutes. That the oflice 
 of professor of mathematics is a grade, is recog- 
 nized by the act of April 17, 1866, section 7 
 (14 Stat., 38), which provides, "That hereafter 
 no vacancy in the grade of professor of mathe- 
 matics in the Na\'y shall be filled." (Roget v. 
 U. S.,148U. S.,167, 171.) 
 
 A\Tiere the word "grade" is used in a statute 
 relating to the Army to designate, indiscrim- 
 inately, first an office and then a rank, it does 
 not signify "office" in its first employment and 
 "rank" in the second, but refers to a quality 
 which may be common to both, viz, that of 
 conferring relative superiority of position. The 
 place of assistant surgeon is a step in promotion; 
 so is that of captain on the medical staff. They 
 are not steps as regards each other. The latter 
 is a step within the former, a subgrade. It is a 
 step above another grade. Those who have 
 been advanced to it stand above those who have 
 not been; and such seems to have been plainly 
 the intent of the legislature. It is unnecessary 
 to issue cenimissions to assistant surgeons in the 
 Army upon their passing from the grade of 
 lieutenant to that of captain. The office for 
 which in these cases the President issues a 
 commission is that of assistant surgeon; the 
 
 frades of lieutenant and captain are not offices 
 ut are incident to the office of assistant surgeon. 
 It appears that by section 1480, Revised Stat- 
 utes, certain officers of the Navy receive a new 
 commission for every grade which they attain. 
 This is by an express statute that is limited to 
 the cases named therein. Although it would 
 reciuire but a slight recognition by Congress to 
 develop these grades (lieutenant and captain in 
 the Army Medical Department) into separate 
 offices, this has not been done as yet; and in the 
 meantime the absence of a statutory provision 
 like that in section 1480 is significant. (16 Op. 
 Atty. Gen., 652.) 
 
 The officers of different corps of the staff, such 
 as the Medical Corj^s and the Pay Corps, have 
 separate and distinct titles appropriate to the 
 nature of their service and to their rank in the 
 corps, and in addition thereto are given relative 
 rank by the same title that is applied to officers 
 of the line. The line furnishes the standard of 
 rank for officers of all classes. A captain in the 
 line is merely a captain and has but one title to 
 designate both his office and his rank. An 
 officer of the staff has an official title to identify 
 his position in his corps, and also a relative rank 
 in addition, the latter being arbitrarily fixed Ijy 
 Congress to designate his relative rank in the 
 service in accordance with the line standard. 
 The rank conferred upon a person holding the 
 position of medical director is purely statutory 
 and arbitrary, and there is no reason why a 
 retired medical director should not hold a 
 higher relative rank than that which is per- 
 mitted on the active list. That Congress has 
 in other instances contemplated a similar 
 
 result is apparent from the provisions of section 
 14S1, wliich provides that certain staff officers 
 shall, wluiu retired, have the relative rank of 
 commodore. (22 Op. Atty. Gen., 433.) 
 
 A class exists in the Army and Navy which 
 does not have to do with the actual maneuver- 
 ing of a regiment or shij) of war, but which per- 
 forms services deemed equally essential to that 
 end, for example, paymasters, surgeons, chap- 
 lains, constructors, etc. There were and are 
 reasons, based upon the efficiency of the ser\'ice 
 looked at as a whole, why a rank should be 
 given to this class commensurate with the rank 
 given to the class which actually exercised 
 command. The difficulty was that in the case 
 of an officer actually exercising command, his 
 office or title correctly represented his rank ex- 
 cept in exceptional cases. In the case, however, 
 of, for example, paymasters, surgeons, etc., the 
 title or office indicated no rank in the Navy as 
 a whole. It was deemed necessary, therefore, 
 to attach to the title or office of such persons 
 a rank which should fix their precedence, pay, 
 etc., and thus bring them in line with the rest 
 of the serxdce. (31 Op. Attv. Gen., 505, citing 
 16 Op. Atty. Gen., 414.) 
 
 "Every officer in the Navy shall be designa- 
 ted and addressed by the title of his rank with- 
 out any discrimination whatever. In written 
 communications, the name of the corps to 
 which any staff officer belongs will be stated 
 immediately after his name; for example: 
 Lieutenant John Doe, Medical Corps, U. S. 
 Na\'y; Lieutenant John Doe, Pay Corps, U. S. 
 Navy; Lieutenant John Doe, Construction 
 Corps, U. S. Navy; Lieutenant John Doe, 
 Civil Engineer Corps, U. S. Navv." (Art. R 
 1001 (2), ■"Navy Regs., 1913, C. N. R. 12, Sept. 
 12, 1918. The designation of the ' ' Pay Corps " 
 was changed to "Supply Corps," by act of Julv 
 11, 1919, 41 Stat., 147.) "All ofl^cers on the 
 retired list have the titles of the rank with 
 which retired." (Art. R 1002 (5), Navy Regs., 
 1913.) "Officers in oral official communica- 
 tions shall be addressed by the title of their 
 rank, except that those below the rank of com- 
 mander may be addressed by the title of their 
 rank or as Mr.; and, in the case of officers of 
 the Medical Corps, as Dr." (Art. R 1008, Navy 
 Regs., 1913, C. N. R. 12, Sept. 12, 1918.) On 
 general subject of titles, and powers of head of 
 department with reference thereto, see note to 
 section 1471, Re\dsed Statutes, under "Titles 
 of chiefs of bureaus." 
 
 For other cases concerning "rank," "grade" 
 and "title," see notes to sections 421, 422, 423, . 
 1362, 1457, 1477, 1479, and 1481, Revised Stat- 
 utes. See also, above, "Grades established, 
 meaning of." 
 
 Examinations required for promotion, 
 in addition to seniority. — The Re\'ised 
 Statutes contained no specific provisions for 
 filling grades in the staff corps, but 1)V act of 
 February 27, 1877 (19 Stat., 244), the f6llowing 
 was added to section 1480: "The_ grades 
 established by the six preceding sections for 
 the staff corps of the Navy shall be filled by 
 appointment from the highest meml^ers in each 
 corps, according to seniority; and new commis- 
 sions shall be issued to the officers so appointed, 
 in which the titles and grades established 
 in said sections shall be inserted." Sections 
 
 684 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1481. 
 
 1498-1510, Revised Statutes, provide for exara- 
 inations for promotion as an additional requi- 
 site to seniority. (31 Op. Atty. Gen. , 80. _ Ex- 
 aminations were discontinued for promotion of 
 staff officers in grade by act of May 22, 1917, 
 sec. 20 (40 Stat. 89), which act and section also 
 reenacted a provision in the act of Mar. 4, 1917 
 (39 Stat., 1182), requiring examinations of staff 
 officers for advancement in rank.) 
 
 Competitive examinations for promo- 
 tion not authorized under this section. — 
 The custom and practice of the Na^-y Depart- 
 ment, sanctioned by section 1372, Ile\dsed 
 Statutes, of requiring competitive examinations 
 of assistant surgeons, and assigning them posi- 
 tions on the Navy Eegister in the order of their 
 relative merit as ascertained and reported by 
 the board of examiners, is not. under section 
 1480, Revised Statutes, as amended by act of 
 February 27, 1877, correct; the effect of the 
 latter law being to adopt the rule of seniority 
 in regard to promotions from one gi-ade to 
 another in the Medical Corps of the Navy. 
 (17 Op. Atty. Gen., 48.) 
 
 Promotions required to be by seniority 
 under this section. — A passed assistant 
 surgeon in the Navy having passed the neces- 
 sary examination for promotion to surgeon, 
 his claim to be promoted according to seniority 
 is well founded. (17 Op. Atty Gen., 48.) 
 
 The act of February 27, 1877, embodied in 
 section 1480, is prospective in its character, 
 and is only to take effect from the date of its 
 enactment. Its language contemplates that 
 the rule prescribed by it may not have thereto- 
 fore always been followed in reference to rank 
 or seniority. (17 Op. Atty. Gen., 48.) 
 
 The act of March 3, 1871, section 10 (16 
 Stat., 536), which is substantially identical 
 with the actof February 27, 1877 (19 Stat., 249), 
 embodied in section 1480, Revised Statutes, 
 contemplated by the use of the words ' ' highest 
 
 numbers in each corps according to seniority," 
 that the promotions should be by seniority and 
 not by competitive examination; and the pro- 
 vision that ' ' no officer shall be reduced in rank 
 or lose seniority" etc., contemplated also that 
 unless this pro\'ision were inserted changes 
 would be made in gi-ades or numbers which 
 had been theretofore fixed, which it was not 
 the intention of Congress to disturb. This 
 clause of the act of March 3, 1871, did not find 
 its way into the original edition of the Revised 
 Statutes, but is now in the second edition, 
 section 1480. It was, however, reenacted by 
 the act of Februaiy 27, 1877, which is a sub- 
 stantial reenactment with the exception that 
 the word 'members" is used instead of "num- 
 bers," and the words, "under the provisions 
 of the said six preceding sections " are substi- 
 tuted for the words, ' " under the pro^^sions of this 
 act," which appeared in the original statute. 
 These changes apparently have no other object 
 than to adapt the statute to its place in the 
 revision. The effect of it is to adopt the rule of 
 seniority in regard to promotions from one grade 
 to another in the staff corps. (17 Op. Atty 
 Gen., 48.) 
 
 For other cases, see above, under "Consti- 
 tutionality of amended section 1480." 
 
 Corps of Civil Engineers. — Ci\'il engineers 
 ai'e plainly included among those contemplated 
 by the amended section 1480, as belonging to 
 the "staff corps of the Navy." (17 Op. Atty. 
 Gen., 126.) 
 
 Errors in commission. — ^Where through a 
 clerical error an officer of the Navy was com- 
 missioned a passed assistant siugeon with the 
 rank of lieutenant, instead of with the rank 
 of lieutenant (junior grade), he is only entitled 
 to the pay of the lesser grade. (11 Comp. Dec. , 
 43. See also note to sec. 1474, R. S., and see 
 note to Constitution, Art. II, sec. 3, under "II. 
 Duty to commission officers.") 
 
 Sec. 1481. [When retired for age or length of service.] Officers of the Med- 
 ical, Pay, and Engineer Corps, chaplains, professors of mathematics, and con- 
 structors, who shall have served faithfully for forty-five years, shall, when 
 retired, have the relative rank of commodore; and officers of these several 
 corps who have been or shall be retired at the age of sixty-two years, before 
 having served for forty-five years, but who shall have served faithfully until 
 retired, shall, on the completion of forty years from their entry into the service, 
 have the relative rank of commodore. — (3 Mar., 1871, c. 117, s. 11, v. 16, p. 537.) 
 
 Amendment to this section was made by act of 
 March 3, 1899 (30 Stat., 1004), wliich abol- 
 ished the Engineer Corps (see note to sec. 
 1390, R. S.); by the same act, section 7 
 (30 Stat., 1006), which changed the words 
 "the relative rank of." to read "the rank 
 of"; by act of August 29, 1916 (.39 Stat., 
 579), which changed the rethement age 
 from 62 to 64 years; and by act of July 11, 
 1919 (41 Stat., 147), which provided 'that 
 "hereafter the Pay Corps shall be called 
 the Supply Corps." 
 
 By act of August 5, 1882 (22 Stat., 286), it was 
 provided that "hereafter there sliall be no 
 promotion or increase of pay in the retired 
 
 list of the Navy, but the rank and pay of 
 officers on the retired list shall be the 
 same that they are when such officers shall 
 be retired. " 
 By act of August 29, 1916 (39 Stat., 611), pro- 
 \dsion was made for retirement of colonels 
 in the Marine Corj^s with the rank of briga- 
 dier general after 4-5 years' service, or on 
 retirement for age after 40 year's senice, 
 or on completion of 40 years from date of 
 entry in the cases of those retired on ac- 
 count of age, in language similar to section 
 1481. The said enactment of August 29, 
 1916, was repealed by act of May 22, 1917, 
 section 14 (40 Stat., 87.) 
 
 685 
 
Sec. 1481. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 This section was repealed in part by the 
 actol August 5, 18S2 [above cited], jmihibiting 
 I)r()motioii8 on the retired list. There were 
 three classes of olhcers to which the act of 
 March 3, 1871 (16 Stat., 537), embodied in sec- 
 tion 1481, applied at the time of its enactment: 
 (1) Oflicei-s of the several staff coi-ps enumerated 
 'who filial 1 have served faithfully for forty-five 
 years"; (2) officers of the several staff corps 
 retired after attaining the age of 62 years, who 
 liad not completed 45 years' service, but who 
 had completed 40 years' service and had sened 
 faithfully until retii-ed; and (3) officers of the 
 several staff corps retired from the service after 
 attaining the age of 62 years, who had not sei*ved 
 45 years or 40 years; officers of this last class 
 were entitled to the relative rank of commodore 
 on the completion of 40 years from the date of 
 their entry into the service; the first two 
 classes were entitled to the relative rank of 
 commodore when retired. The Navy Registers 
 from March 3, 1871, to August 5, 1882, show that 
 officers of each of the foregoing classes were 
 advanced to the rank of commodore under sec- 
 tion 1481; and that in the cases of officers in 
 class 3, time on the retired list was counted in 
 computing the 40 years' service in order to give 
 them the increased rank (see 26 Op. Atty. Gen., 
 57). However, the act of August 5, 1882, put 
 an end to promotions of officers of class 3, and 
 since that date the Navy Registers do not show 
 that any officers of class 3 have been promoted 
 to the rank of commodore under this section, 
 although the records of the Navy Department 
 show that there have been many applications 
 from such officers for increased rank under said 
 section, which applications have been denied. 
 It is clear that the Navy Department has, since 
 the enactment of August 5, 1882, construed it 
 as prohibiting all promotions on the retired list, 
 including those previously authorized by sec- 
 tion 1481, Revised Statutes, and this construc- 
 tion is supported l)y the Attorney General's 
 opinions with reference to promotions on the 
 retired list under sections 1460 and 1461, Re- 
 vised Statutes (see 17 Op. Atty. Gen., 495; 26 
 Op. Atty. Gen., 498, 501). Accordingly, held, 
 that an officer retu-ed at the age of 62 years, 
 before having served 45 years, but who served 
 faithfully until retired, and who, after retire- 
 ment, completed 40 years from the date of his 
 entry into the sei'vice, is not entitled to be 
 advanced to the rank of commodore on the re- 
 tu-ed list under section 1481. (File 27231-112, 
 Apr. 1, 1918.) 
 
 The act of August 5, 1882, expressly declares 
 in the plainest language that no oflScer shall be 
 promoted after his retirement, thereby re- 
 pealing section 1481, to the extent that it con- 
 flicts with that section. The act in terms 
 applies to all officers irrespective of the time 
 when they entered the service, and is not 
 limited to those who entered the service sub- 
 sequent to its passage. (Op. Atty. Gen., Jan. 
 28, 1921, file 27231-141:6.) 
 
 Retirement of officer after 45 years' 
 service. — Under the provisions of section 1481, 
 Revised Statutes, an officer <jf the Pay Corps 
 [now Supply Corps] who has "served faithfully 
 for forty-five years," may be retired with the 
 rank of commodore. In computing said 45 
 
 years' service, an oflTicer in the Navy may count 
 serWce in the regular Navy, service as a student 
 at the Naval Academy prior to March 4, 
 1913, and service in the United States Armv. 
 (File 27231-141, June 10, 1919. See notes to 
 sees. 1443, 1444, R. S.) 
 
 Rank of rear admiral substituted for 
 relative rank of commodore. — By sections 
 1481 and 1482 the retirement of staff oflicers is 
 particularly provided for. Under the scheme 
 at that time of relative rank (sees. 1474-1480, 
 inclusive), and the survival then of the oflice 
 of commodore, long service and failthful service 
 in the staff corps gave the right of retirement 
 with that relative rank. The Navy personnel 
 act (Mar. 3, 1899, 30 Stat., 1006) has now sub- 
 stituted (sec. 7) the rank of rear admiral in 
 such case. (25 Op. Atty. Gen., 294, 296, citing 
 22 Op. Atty. Gen., 433. See note to sec. 421, 
 R. S., under "VI. Retirement of chiefs of 
 bureaus.") 
 
 Retired with, rank of commodore in 
 practice. — Under section 1481, Revised 
 Statutes, certain staff officers are retii'ed with 
 the rank of commodore, this being the only case 
 in which any officers are now placed on the 
 retired list with that rank, retirements under 
 section 1473, Revised Statutes, being made in 
 practice with the rank of rear admiral instead 
 of commodore, as was provided therein. (File 
 3980-1402, Oct. 31, 1917, noted more fully under 
 sec. 1466, R. S., "Grade of commodore abolished 
 on the active list.") 
 
 A civilian professor at the Naval Academy 
 was appointed to the corps of professors of 
 mathematics, with the rank of lieutenant, 
 pursuant to a special act of Congress (37 Stat., 
 906), which pro\dded that such appointee 
 should be an extra number, "not in the line of 
 promotion." Subsequently he was retired 
 with the rank of lieutenant. At the time of 
 his retirement he had completed 45 years' 
 service, including his ci\ilian service which 
 under the special enactment was to be counted 
 "as service in the Navy" for "pay and other 
 purposes." Held, that under section 1481, he 
 was entitled to the rank and pay of commodore, 
 on the retired list. (32 Op. Atty. Gen., 129.) 
 
 Retirement with higher rank not a 
 change in grade. — By section 1481, Re\ised 
 Statutes, officers of the staff of the Navy having 
 the relati%'e rank of captain ai'e retired with the 
 relative rank of commodore, or that of the next 
 higher grade. This is not an advancement in 
 grade. The distinction between rank and 
 grade in both the Army and Navy is so long 
 and so well understood that we can not suppose 
 Congress unmindful of it in this enactment. 
 Section 1481, without any apparent intention 
 to change the actual grade of the officers referred 
 to, uses the language, "shall, when retired, 
 have the relative rank of commodore." Had 
 Congress here intended a change of grade and 
 not of rank merely, it would have used the 
 word "grade" instead of "rank." But Con- 
 gress said rank and not grade, and this leaves 
 the officers there referred to in the same grade 
 as ])efore, but with the relative rank of the next 
 higher grade. (26 Op. Atty. Gen., 57.) 
 
 The act of June 29, 1906 (34 Stat., 554), pro- 
 vided an advancement in rank and pay on the 
 
 686 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1483. 
 
 retired list for certain officers who served dur- 
 ing the chril war, with the pro\'iso that said act 
 should not apply to any officer who had received 
 an advance of "grade" at or since the date of 
 his retirement. Held, that a medical director 
 whose rank on the active list was that of cap- 
 tain, and who was retired under section 1481 
 with the relative rank of commodore, did not 
 receive an advance of "'grade" at or since the 
 date of his retirement; that he is not. by \'irtue 
 of his relative rank of commodore, an officer 
 above the "'grade" of captain; and that he is 
 entitled to the increased pav pro\-ided for in 
 the act of 1906. (26 Op. Atty. Gen.. 57.) 
 
 For other cases, see note to section 1480. 
 Re\'ised Statutes, under "' 'Grade.' 'rank,' 
 and 'title.' in staff coi-ps," and references there 
 cited. 
 
 Policy of retirement with higher rank. — 
 
 Section 1481 and other retirement statutes 
 indicate in general the principle that credit- 
 a1)le retirement carries an advance in rank 
 and pay (allowing for the difference between the 
 active and inactive status). (25 Op. Atty. 
 Gen., 294.) 
 
 There is no reason why a retired medical 
 director should not be given a higher rank on 
 the retired list, as a reward for Civil War service, 
 than that which is permitted on the active list. 
 That Congress has in other instances contem- 
 plated a similar result is apparent from section 
 1481. which provides that certain staff officers 
 shall, when retii'ed. have the relative rank of 
 commodore, the highest rank on the active 
 list for the Medical Corps (at that time) being 
 captain. (22 Op. Atty. Gen., 433.) 
 
 Sec. 1482. [Retired for causes incident to service.] Staff-officers, who have 
 been or shall be retired for causes incident to the service before arriving at sixty- 
 two years of age, shall have the same rank on the retired list as pertained to 
 their position on the active list. — (3 Mar., 1871, c. 117, s. 11, v. 16, p. 537.) 
 
 See note to section 1457, Revised Statutes, concerning the rank and grade of retired officers. 
 
 Sec. 1483. [Graduates of Naval Academy.] Graduates of the Naval 
 Academy shall take rank according to their proficiency as shown by their order 
 of merit at the date of graduation. 
 
 (23 May, 1872, c. 195, s. 1, v. 17, p. 153.) 
 
 See note to section 1521, Revised Statutes, for 
 references to laws concerning commission- 
 ing of midshipmen after graduation from 
 the Naval Academy. 
 "Graduation" defined. — Theactof Julvl6, 
 1862, section 11 (12 Stat., 585) , pro\-ided "that 
 "the students at the Naval Academy shall be 
 styled cadet-midshipmen until their final grad- 
 uating examination, when, if successful, they 
 shall be commissioned ensigns, ranking accord- 
 ing to merit." The act of July 15. 1870, sec- 
 tion 12 (16 Stat., 334), provided that "the 
 students at the Naval Academy shall hereafter 
 be styled cadet-midshipmen * * *. When 
 cadet-midshipmen shall have passed success- 
 fully the graduating examination at said acad- 
 emy, they shall receive appointments as mid- 
 shipmen, ranking according to merit, and may 
 be promoted to the grade of ensign as vacancies 
 in the number allowed by law in that grade 
 may occur." Held, that the words " final grad- 
 uating examination " in the former statute, and 
 " graduating examination " in the latter, signify 
 that examination which, under the regulations 
 of the Naval Academy, takes place after the 
 prescribed term of sea 8er\dce which forms a 
 part of the course at the Naval Academy. Al- 
 though graduation is used in a local and pecu- 
 liar sense at the Naval Academy, referring to an 
 examination held during and not at the end of 
 the academic course, that is, to an examination 
 which originally was intended to certify that 
 the student might well be "sent to sea," and 
 the examination at the end of the whole course 
 was called the "final examination," so that in 
 the vocabulary at Annapolis the adjectives 
 "final'' and "graduating," in connection with 
 " examination " ha\-e a technical meaning, the 
 former corresponding ^rith graduating as ordi- 
 narily employed at institutions of learning and 
 
 the latter differing materially from its common 
 acceptation, being no more graduating as usu- 
 ally understood than the diploma then given is 
 a diploma as usually understood, nevertheless 
 the mere fact that the act of 1870 concerned an 
 institution at which graduating has a peculiar 
 meaning does not make it an exception to the 
 rule requiring that word to be taken in its usual 
 meaning. (15 Op. Atty. Gen., 637; see also 11 
 Op. Atty. Gen., 158.) 
 
 The "final graduating examination" ■within 
 the meaning of the act of July 16, 1862, was that 
 examination to which the members of the grad- 
 uating class were subjected after they had per- 
 formed a term of duty on shipboard, "with a \dew 
 to their becoming practically proficient in the 
 arts of seamanship, naval tactics, gunner^-, and 
 na\"igation. The numbers assigned to them 
 respectively by the examining board as the re- 
 sult of the examination on the subjects indi- 
 cated, when added to the numbers which had 
 previously been assigned to them on the "grad- 
 uating merit-roll" of the academy, determined 
 their respective standing as passed midship- 
 men, the highest number talang precedence. 
 This last examination upon the subjects to 
 which the service of the students on board of 
 ship was especially directed after the comple- 
 tion of the more purely academic studies, was 
 the "final graduating examination" under the 
 system de\Tsed by the department. After they 
 had passed this examination they took rank in 
 the Navy conformably to their standing thus 
 ascertained in the academy. Such was the sys- 
 tem in operation when the act of 1862 was 
 passed. That act gave distinct legislative sanc- 
 tion to the regulation of the department by 
 which this final graduating examination was 
 appointed. Accordingly, held, that under said 
 act, students or midshipmen at the Naval 
 
 687 
 
Sec. 1483. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 Academy are not entitled to be commissioned 
 en.sii^ns until thoy lia\c porforniod the term of 
 duty on slni)l)()ard and passed tlieir final exami- 
 nation on practical navijiration and seamanship. 
 (UOp. Atty.(;en..l58.) 
 
 The construction uiven to the statute of 1870 
 by the authorities at the academy has been that 
 midshipmen, although graduated, were never- 
 theless not entirely emancipated from proba- 
 tionary study, but that after "graduating^' they 
 ■were still, as theretofore, to be students at sea; 
 that while such students at sea a pro\'isional 
 relative rank was assigned them by the statute, 
 but that it was not intended by such legislation 
 to abolish the old discipline by which a final 
 graduating examination was to have effect upon 
 the relative rank which they should bear after 
 emancipation. There is no reason for disturb- 
 ing this conclusion, by whatever course of argu- 
 ment it may be attempted to be met. (16 Op. 
 Atty. Gen., 296, affirming 15 Op. Atty. Gen., 
 637.) 
 
 In 15 Op. Atty., 637, and 16 Op. Atty. Gen., 
 296, this entire subject is elaborately discussed 
 and clearly and distinctly decided, and it is not 
 compatible with the proper administration of 
 the Department of Justice that a third opinion 
 upon the legal questions involved should be 
 rendered, unless very exceptional circum- 
 stances should exist recjuiring so unusual a 
 course to l)e pursued. The Attorney General 
 discovers no circumstances which would jus- 
 tify him in considering the question in these 
 opinions, twice considered and twice decided 
 in the same way, as open questions for exami- 
 nation and decision. (17 Op. Atty. Gen., 193.) 
 
 See note to section 1520, ReAdsed Statutes, as 
 to the "academic course" of midshipmen. 
 
 Precedence of graduates commissioned 
 in the line of the Navy and in the Marine 
 Corps. — It is very clear that officers of the 
 Marine Corps and officers of the Navy take pre- 
 cedence, when of the same rank, according to 
 date of commission. (See sec. 1603 and note to 
 sec. 1466, R. S.) But the question is, ^^'hat 
 rule should be applied to determine the preced- 
 ence of officers of the Marine Corps and offi- 
 cers of the Na\'y of the same rank, when their 
 dates of commission are also the same? By 
 section 1219, Revised Statutes, relating to the 
 Army, and article R 1010 (2), Na\-y Regula- 
 tions, 1913, preWous commissioned service 
 must be taken into account under such circum- 
 stances. This does not cover the case where 
 date of commission is the same and neither 
 party has had prior commissioned service. By 
 a regulation of the Army (Art. 11, Army Regs., 
 1913), "when periods of service are equal, pre- 
 cedence will, except when fixed by order of 
 merit on examination, be determined, iirst, by 
 rank in service when appointed; second, by 
 former rank in the Army or Marine Corps: third, 
 by lot." There is no similar regulation \vith 
 reference to the Navy: Suggested, that the pre- 
 cedence of ensigns and second lieutenants who 
 are graduates of the Naval Academy be fixed 
 by order of merit on final examination at the 
 Academy. (File 11130-27, Aug. 26, 1915.) 
 
 The Attorney General has held that "there 
 is no law making any distinction as to relative 
 rank and precedence between the officers of the 
 
 Marine Corps who are, and those who are not, 
 graduates of the United States Naval Academy, 
 either as respects themselves, or officers of the 
 line of the Navy." (See 25 Op. Atty. Gen., 
 517.) However, there is no statute which pre^ 
 vents the adoption of a rule that officers of the 
 Na\-y and Marine Corps commissioned from 
 graduates of the Naval Academy on the same 
 date shall take precedence according to their 
 order of merit on final examination at the acad- 
 emy. Indeed, so far as the statutes go they in- 
 dicate that this is the rule which should l)e ap- 
 plied. Thus, section 1483 provides that "grad- 
 uates of the Naval Academy shall take rank 
 according to their proficiency as shown by their 
 order of merit at the date of graduation." 
 Again, the act of August 5, 1882 (22 Stat., 285), 
 authorized the appointment of graduates of the 
 Naval Academy "to fill vacancies in the lower 
 grades of the line and Engineer Corps of the 
 Na^-y and of the Marine Corps," with the ex- 
 press pro\asion that such appointments were to 
 be made "in the order of merit, as determined 
 by the academic board of the Naval Academy. " 
 This was followed by the act of March 2, 1889 
 (25 Stat., 878), which contained other provi- 
 sions for appointments from graduates of the 
 Naval Academy to the line and Engineer 
 Corps of the Navy and the Marine Corps, with 
 the proviso: "Such appointments to be 
 made from the final graduates of the year, 
 in the order of merit as determined by the 
 Academic Board of the Naval Academy." 
 Also, the act of July 26, 1894 (28 Stat., 124), 
 proWded for appointments of graduates of the 
 academy to the grades of ensign and assistant 
 engineer in the Na\'y, with the proviso that 
 they should take rank ' ' among themselves ac- 
 cording to merit as determined by the academic 
 board. ' ' It would thus seem entirely proper to 
 adopt the proposed rule fixing the precedence 
 of second lieutenants and ensigns according to 
 their order of merit at final graduation from the 
 academy. (File 11130-27, Aug. 26, 1915.) 
 
 Graduation temporarily delayed. — When 
 the date of final graduation arrives the grad- 
 uating midsliipmen may be scattered in 
 vaiious parts of the world where they happen 
 to be on the date of the expiration of the two 
 years' sea service period. It may happen that 
 there is a delay in the receipt of their cruise 
 reports, or that additional cruise reports are 
 called for, or that there is a failure in the physi- 
 cal examination and a reexamination had upon 
 the recommendation of the academic board at 
 a later date to determine the permanency of 
 the physical disability, or that there is a failure 
 in some subject of professional examination 
 a:nd a reexamination ordered upon the recom- 
 mendation of the board. 'Wlien the midsliip- 
 man, aside from the defect thus occasioned, is 
 entitled to be graduated with his class, upon 
 the curing or overcoming of such defect he 
 becomes entitled to the title of graduate from 
 the date of "final graduation" as fixed by the 
 statute, that is, at the end of the six years' 
 course. In tliis case the midshipman gradu- 
 ated from the four years' course at the Academy 
 with his class on .Tune 6, 1907; his two years' 
 sea ser\dce from such date expired on June 5, 
 1909 ; his title as a graduated midshipman dates 
 from June 0, 1909. (17 Comp. Dec, 298.) 
 
 688 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1485. 
 
 Rule for determining date of pre- 
 cedence. — A rule that in each class of graduates 
 from tlie Naval Academy the "date of prece- 
 dence" of members of such class shall be deter- 
 mined by ascertaining the member having the 
 earliest date of admission to the Academy and 
 imputing that date of admission to every other 
 member who stands above him in the class; 
 and tlien taking the member below him who 
 has the next earliest date of admission and 
 imputing that date to all who stand a])ove him 
 but below the first date, and so on down in that 
 order, but preserving to the members of each 
 date their relative class standing in the order 
 of merit, is in conflict with the act approved 
 August 5, 1882 (22 Stat., 284). (21 Op. Atty. 
 Gen., 46; compare file 11130-2, Aug. 10, 1908, 
 11130-2/B, July 31, 1909, 11130-2/B&C, Jan. 5, 
 1910.) 
 
 When midsliipmen enter the Naval Academy 
 there is no means of determining their relative 
 position other than by their respective dates 
 of entry. At the termination of six years their 
 relative position is fixed by their order of merit, 
 among themselves, and those members who 
 entered at later dates may be placed by such 
 order of merit above their fellows who entered 
 earlier. By this operation they have been 
 advanced on the Navy Register over classmates 
 who entered the Academy at earlier dates. A 
 constructive length of ser\dce is necessary to 
 be attributed to officers so advanced, and they 
 
 are correctly given the same date of precedence 
 as that of the officer standing below them who 
 entered on the earliest date. (File 11130-2, 
 Aug. 10, 1908, citing 17 Op. Atty. Gen., 58.) 
 
 By act of March 4, 1913 (37 Stat., 891), it 
 was provided that "hereafter the service of a 
 midshipman at the United States Naval Acad- 
 emy, or that of a cadet at the United States 
 Military Academy, who may hereafter be 
 appointed to the United States Naval Academy, 
 or to the United States Military Academy, shall 
 not be coimted in computing for any purpose 
 the length of service of any officer in the Navy 
 or in the Marine Corps." See also note to 
 section 1486, Revised Statutes. 
 
 Importance of questions involving pre- 
 cedence. — Cases are of more than usual interest 
 and importance which involve questions of 
 rank and precedence amongst members of a 
 profession in wliich rank and precedence form 
 high motives to heroism and self-devotion. 
 The country calculates upon the existence and 
 force of these motives. They are recognized 
 and fostered both by the law and by piiblic 
 opinion. Therefore it is that public action 
 tending to disappoint these motives, and con- 
 sequently to impair their effect in general, 
 must be treated as of universal concern; and 
 any action duly arraigned upon such account 
 must be subjected to more than ordinary 
 scrutiny. (15 Op. Atty. Gen., 637.) 
 
 Sec. 1484. [Engineers graduated at Naval Academy. Superseded.] 
 
 This section provided as follows: 
 
 "Sec. 1484. Engineer officers graduated at 
 the Naval Academy shall take precedence with 
 all other officers with whom they have relative 
 rank, according to the actual length of ser\'ice 
 in the Navv." (3 Mar., 1873, c. 230, s. 1, v. 
 17, p. 555.) ' 
 
 It was superseded by act of August 5, 1882 
 (22 Stat., 285), which pro\'ided in part "that 
 hereafter there shall be no appointments of 
 cadet-midshipmen or cadet-engineers at the 
 Naval Academy, but in lieu thereof naval cadets 
 shall be appointed from each congressional 
 district and at large, as now provided by law 
 for cadet-midshipmen, and all the under- 
 graduates at the Naval Academy shall hereafter 
 be designated and called 'naval cadets:' and 
 from those who successfully complete the six 
 years' covurse appointments shall hereafter be 
 made as it is necessary to fill vacancies in the 
 lower grades of the line and Engineer Corps of 
 the Navy and of the Marine Corps: * * * 
 such appointments to be made from the gradu- 
 ates of the year, at the conclusion of their six 
 years' course, in the order of merit, as deter- 
 mined by the academic board of the Naval 
 Academy * * *." Prior to this act of 
 August 5, 1882, the course of "cadet engineers" 
 was four years (sec. 1524, R. S.) and cadet 
 
 engineers graduated from the Naval Academy 
 were appointed as assistant engineers (sec. 1394, 
 R. S.) ; while the course of other students at the 
 Naval Academy was six years (sec. 1520, R. S.), 
 and section 1484 was intended to prevent cadet 
 engineers when commissioned at the end of 
 their four years' course from gaining precedence 
 over other students at the academy not com- 
 missioned until the end of their six years' 
 course (15 Op. Atty. Gen., 336, noted under 
 sec. 1486, R. S.). The provisions of section 
 1484 were superseded and rendered obsolete by 
 the act of August 5, 1882, which made the 
 coui'se for all students at the Naval Academy 
 six years and provided that they should be 
 commissioned "in the order of merit, as deter- 
 mined by the academic board of the Naval 
 Academy." 
 
 Subsequent laws relating to the appoint- 
 ment of engineer officers from graduates of the 
 Naval Academy were enacted on March 2, 1889 
 (25 Stat., 878), and July 26, 1894 (28 Stat., 124), 
 noted under section 1521, Revised Statutes. 
 The act of March 3, 1899 (30 Stat., 1004), 
 abolished the Engineer Corps, while the 
 appointment and assigmnent of line officers for 
 engineering duty only was authorized by act 
 of August 29, 1916 (39' Stat., 580). See note to 
 section 1390, Revised Statutes. 
 
 Sec. 1485. [Precedence by length of service.] The officers of the staff corps 
 of tlie Navy shall talve precedence in their several coqjs, and in their several 
 grades, and with officers of the line with whom they hold relative rank according 
 to length of service in the Navy.— (3 Mar., 1871, c. 117, s. 10, v. 16, p 537.) 
 
 689 
 
Sec. 1485. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Amendment to this section was made l)v act of 
 March 4, 1913 (37 Stat., 8'J2), \v hich pro^^d- 
 ed that oflicers who enter the Kavy "after 
 the passajje of this act" ' shall take prece- 
 dence when of the same grade according to 
 their respective dates of commission in that 
 grade; and by act of August 20, 1916 (39 
 Stat., 578), which provided "that ofhcers 
 shall take rank in each staff corps according 
 to the dates of commission in the several 
 grades, excepting in cases where they have 
 gained or lost numbers.' ' 
 ' 'Relative ' ' rank was abolished and actual rank 
 substituted therefor bv act of March 3, 1899, 
 section 7 (:'.0 Stat., lOhr.). 
 Section 1485 modified by subsequent 
 legislation. — The act of August 29, 1916 (cited 
 above), superseded and repealed the following 
 words in section 1485 : ' 'The officers of the staff 
 corps of the Navy shall take precedence in their 
 several corps, and in their several grades, * * 
 * according to length of ser^•ice in the Navy." 
 (File 22724-40, Apr. 24, 1919.) 
 
 Section 1485 was modified bv section 1486, as 
 amended by act of March 3, 1881 (21 Stat., 510), 
 relating to constructive service to be credited to 
 staff officers for purposes of precedence, and was 
 superseded \vith reference to the vounger officers 
 oftheNavybyactofMarch4, 1913 (37 Stat. 892), 
 providing that all officers who enter the Navy 
 after said act of March 4, 1913, "shall take pre- 
 cedence when of the same grade according to 
 their respective dates of commission in that 
 grade." (File 22724-40, Apr. 24, 1919.) Under 
 this amendment of March 4, 1913, all officers 
 thereafter commissioned, including midship- 
 men who were under instruction on March 4, 
 1913, should take precedence with other officers 
 of the same rank "according to their respective 
 dates of commission." (File 11130-37, Jan. 19, 
 1917.) 
 
 When of the same grade, line officers of the 
 Navy take precedence ^vith each other accord- 
 ing to date of commission, officers of the Marine 
 Corps take precedence with each other accord- 
 ing to date of commission, and officers of the 
 Army take precedence -wath each other accord- 
 ing to date of commission. Officers of the 
 Army, Na^^, and Marine Corps, of correspond- 
 ing rank, take precedence wdth each other 
 according to date of commission. The date-of- 
 com mission rule is the \m\vritten law of the 
 Army and Navy (citing 25 Op. Atty. Gen., 517; 
 see also 26 Op. Atty. Gen., 16). this unwrit- 
 ten law was changed by section 1485 with ref- 
 erence to staff officers of the Na\'y , whose prece- 
 dence as between themselves was by that sec- 
 tion made to depend upon length of scrAdce, 
 and based upon this latter rule for determining 
 precedence of staff officers with each other, and 
 e\ddently recognizing the impracticability of 
 having a different rule applied to deterrnine 
 their precedence ^vith officers of the line. Con- 
 gress by the same section made the length-of- 
 Service rule applicable in determining the pre- 
 cedence of staff officers with the officers of the 
 line. By act of August 29, 1916, Congress re- 
 verted to the general and established date-of- 
 commission rule as applicable to the precedence 
 of staff ofiicers with each other. As a result. 
 
 staff officers now take precedence in each rank 
 according to date of commission, the same as 
 line officers take precedence in each rank accord- 
 ing to date of commission, and the same as 
 officers of the Army and Marine Corps take pre- 
 cedence with each other and with all officers of 
 the Navy according to date of commission. 
 (File 22724-40, Apr. 24, 1919.) 
 
 The act of August 29, 1916, having destroyed 
 the very foundation upon which the length-of- 
 ser^^ce rule was made applicable as between 
 officers of the staff and officers of the line, the 
 retention of that rule would be impossible of 
 enforcement as it would mean two inconsistent 
 niles for determining the precedence of staff 
 officers as between themselves and with officers 
 of the line. (File 22724-40, Apr. 24, 1919.) 
 
 Section 1485, Revised Statutes, in so far as 
 it provided that oflicers of the staff corps should 
 take precedence with officers of the line and 
 other staff corps by length of serWce is abso- 
 lutely and irreconcilably repugnant to the pro- 
 vision in the act of August 29, ] 916, that officers 
 shall take precedence in each staff corps accord- 
 ing to date of commission; both laws can not 
 stand; if staff officers are to take precedence 
 with each other in the same corps according to 
 date of commission they can not take prece- 
 dence with the line and other staff corps ac- 
 cording to length of serAdce; if on the other 
 hand the length-of -service rule is to be retained 
 and applied in determining the precedence of 
 staff officers with officers of the line and other 
 staff corps, then the date-of-commission rule 
 for determining precedence of officers in each 
 staff corps must give way and the act of August 
 29, 1916, is rendered nugatory. WTiere it is 
 impossible to harmonize the provisions of two 
 statutes, the rule is settled that the later statiite 
 operates of necessity as an implied repeal.of the 
 earlier. (File 22724-40, Apr. 24, 1919; but see 
 32 Op. Atty. Gen., 476, noted below.) 
 
 Held, that the act of August 29, 1916, repeals 
 by necessary implication section 1485 of the 
 Rcdsed Statutes, and that officers of the staff 
 corps must now take precedence in each staff 
 corps, and with officers of the line and other 
 staff corps, as well as with officers of the Army 
 and Marine Corps, according to date of commis- 
 sion and in no case bv length of serAdce. (File 
 22724-40, Apr. 24, 1919; file 11130-63, Sept. 23, 
 1919; C. M. O. 280, 1919, p. 19; affirmed on re- 
 consideration, file 11130-^3:1, Mar. 16, 1920, 
 C. M. O. 74, 1920, p. 16, and file 11130-63:3, 
 Dec. 11, 1920; see also file 11130-67, Apr. 26 
 1920; file 11130-63:5, Feb. 14, 1921; file 11130- 
 63:5, Feb. 28, 1921. But see 32 Op. Atty. Gen., 
 476, noted below.) 
 
 The Attorney General haAdng been requested 
 to render an opinion as to the effect of the act 
 of August 29, 1916, upon section 1485, ReA-ised 
 Statutes, held: (1) That since said act of August 
 29, 1916, staff officers who entered the NaA'y 
 prior to March 4, 1913, take precedence with 
 officers of other staff corps, as well as with offi- 
 cers of their own corps, according to date of 
 commission; (2) that such staff officers take 
 precedence with officers of the line according 
 to date of commission in cases where they are 
 associated with line officers and it would be 
 
 690 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1486. 
 
 impracticable to give them precedence among 
 themselves by date of commission and at the 
 same time to give them precedence ■vdth the 
 line officers by length of ser^'ice; (3) that such 
 staff officers take precedence with officers of the 
 line according to length of serAdce, as pro\T.ded 
 by section 14S5, in cases where they are asso- 
 ciated with line officers and it would not be 
 impracticable to give them precedence among 
 themselves by date of commission and with 
 the line officers bv length of ser\'ice. (32 Op. 
 Attv. Gen., 476, Mar. 3', 1921; C. M. 0. 4, 1921, 
 p. 19.) 
 
 The conflict between section 1485, RoAised 
 Statutes, and the act of August 29, 1916, was 
 illustrated by the Attorney General as follows: 
 "Suppose Captain A of the Construction out- 
 ranks Captain B of the same corps by date of 
 commission. Captain B outranks Captain C of 
 the line both by date of commission and by 
 length of serA-lce. and Captain C outranks Cap- 
 tain A by length of serAice. ObAdously the 
 order of precedence of these officers can not be 
 determined by apphing either or both of the 
 above st itutes. Under the act of August 29, 
 1916. Captain A outranks Captain B. Init that 
 act does not define the relatiA'e rank of these 
 officers to Captain C; that is done by Re\ised 
 Stitutes. section 1485, according to which Cap- 
 tain B outranks Captain C, who in turn out- 
 ranks Captain A. But Captain B does not out- 
 
 rank Captain A, because that is contrary to the 
 express command of the act of August 29". 1916." 
 In the situation thus supposed, it was held by 
 the Attorney General that all three officers 
 would take precedence by date of commission; 
 but that "Re\ised Statutes section 1485 is 
 repealed only as applied to that situation;" 
 that '"it does not follow that section 1485 is 
 repealed as to those situations to which it can 
 be applied without coming in conflict with the 
 act of August 29, 1916, as, for instance, between 
 Captains A and C or Captains B and C." not- 
 withstanding that "the result will be that 
 Captain A mil outrank Captain C in some cir- 
 cumstances, while in others the order of pre- 
 cedence \\i\\ be reversed," and that "if there is 
 one rule of precedence for staff officers among 
 themselves and a different one between staff 
 and line officers it may happen that an officer 
 will find that his inferior of yesterday is his 
 superior to-day, and that because of this fact 
 great difficulty will be experienced in adminis- 
 tering the laws applicable to the Navv." (32 
 Op. Atty. Gen.. 476, Mar. 3, 1921; compare 22 
 Op. Atty. Gen., 255, 257, holding in another 
 connection that "to so legislate as to prevent 
 the application of pre\ious legislation is to 
 repeal the preAaous legislation bv implication;" 
 see also South Ottawa v. Perkins", 94 U. S., 267.) 
 For other cases see note to section 1486, 
 Revised Statutes. 
 
 Sec. 1486. [Length of service, liow estimated.] In estimating the length of 
 service for such purpose, the several officers of the staff cor]:)S shall, respectively, 
 take precedence in their several grades and with those officers of the line of the 
 Navy ^vith whom they hold relative rank who have been in the naval service 
 six years longer than such officers of said staff coqDS have been in said service; 
 and officers who have been advanced or lost numbers on the Navy Register shall 
 be considered as having gained or lost length of service accordingly. — (3 Mar., 
 1871, c. 117, s. 10, V. 16, p. 537.) 
 
 at the United States Military Academy, 
 who may hereafter be appointed to the 
 United States Naval Academy, or to the 
 United States ]\Iilitary Academy, shall not 
 be counted in computing for any purpose 
 the length of servdce of any officer in the 
 Na^y or in the Marine Corps. " 
 
 By act of March 3, 1899, section 13 (30 Stat., 
 1007), it was proAdded "that all officers, 
 including warrant officers, who have been 
 cT may be appointed to the Navy from 
 ciA-il life shall, on the date of appointment, 
 be credited, for computing their pay, with 
 five years' service." By act of March 4, 
 1913 (37 Stat., 891), it was enacted that 
 said pro\Tsion in the act of March 3, 1899, 
 "shall not apply to any person entering 
 the Navy from and after the passage of 
 this act." 
 
 By act of August 29, 1916 (.39 Stat., 578), it was 
 provided "that officers shall take rank in 
 each staff corps according to the dates of 
 commission in the several grades, except- 
 ing in cases where they may have gained 
 or lost numbers." 
 
 Amendment to this section was made by act of 
 March 3, 1881 (21 Stat., 510), which added 
 thereto the following: ''Provided, That 
 nothing in this section shall be so con- 
 strued as to give to any officer of the staff 
 corps precedence of, or a higher relative 
 rank than that of, another staff officer in 
 the same grade and corps, and whose com- 
 mission in such grade and corps antedates 
 that of such officer. " It was further modi- 
 fied by act of March 3, 1899, section 7 (30 
 Stat., 1006), which abolished "relative" 
 rank and substituted therefor actual rank. 
 By act of March 4, 1913 (37 Stat., 892), it 
 was provided that "section fourteen hun- 
 dred and eighty-six of the RoAdsed Statutes 
 shall not apply in the case of officers who 
 enter the Navy after the passage of this Act 
 and all such officers shall take precedence 
 when of the same grade according to then- 
 respective dates of commission in that 
 grade. " The same act of March 4, 1913 
 (37 Stat., 891), provided that "hereafter 
 the ser\dce of a midshipman at the United 
 States Naval Academy, or that of a cadet 
 
 691 
 
Sec. 1486. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 IW act of July 11, 1919 (41 Stat., 140\ it was 
 provided that "any officer with the per- 
 manent rank of rear admiral who has here- 
 tofore served a full term and is now serving 
 as chief of any bureau of the Navy Depart- 
 ment shall be credited ^\-ith serAice for all 
 purposes as provided by section 1486 of 
 the Revised Statutes, and nothing herein 
 ("ontained shall operate to increase the rank 
 or pay of any such officer as now authorized 
 by law."' 
 See note to section 1485 upon question 
 whether that section is repealed by subsequent 
 legislation. See also note below, under "Offi- 
 cers who have been advanced or lost numbers." 
 Constructive service. — It will be noted 
 that section 1485, Revised Statutes, standing 
 alone, made actual length of service in the Navy 
 the rule of precedence in the cases of staff offi- 
 cers in their several corps and with officers of 
 the line of corresponding rank. By section 
 1486 this was modified, and proWsion was made 
 for crediting officers with what is known as 
 "constructive service" in determining their 
 precedence under section 1485. This so-called 
 "constructive serAdce" was credited in two 
 cases, namely, first: Officers upon their original 
 appointment to a staff corps were credited with 
 six years' constructive service so that they 
 would take precedence, in the language of sec- 
 tion 1486, "with those officers of the line of the 
 Na\y ^\•ith whom they hold relative rank who 
 have been in the Na^y six years longer than 
 such officers of said staff corps have been in 
 said 8er^^ce;" and second: Officers advanced 
 on the Navy Register were credited with con- 
 structive service in fulfillment of the require- 
 ment in section 1486 that officers so advanced 
 "shall be considered as having gained * * * 
 length of service accordingly." (File 11130-63: 
 5, Feb. 14, 1921.) 
 
 Prior to March 4, 1913, the precedence 
 of officers of the Navy was determined as 
 follows: (a) Line officers took precedence in 
 each grade according to dates of commission 
 (sec. 1467, R. S.); (b) staff officers took pre- 
 cedence in each corps and grade according to 
 length of sendee in the Navy (sec. 1485, R. 
 S.) ; (c) officers of the line and officers of the staff 
 corps took precedence with each other, first, 
 according to rank (sec. 1489, R. S.), and when of 
 the same rank, according to length of service in 
 the Na\y (sec. 1485, R. S.); {d) in determining 
 length of ser\-ice under (c), officers of the staff 
 cor])s were given precedence witli officers of 
 the line of the same rank who had been in the 
 naval service six years longer than such officers 
 of said staff corps had been in said service; in 
 other Words, staff officers were credited with 
 constructive ser\-ice approximating six years 
 (sec._ 14S6, R. S.); (e) the constructive service 
 credited to staff officers for purposes of pre- 
 cedence was not to operate to give any officer 
 of the staff corps precedence of another officer 
 in the same grade and corps whose commission 
 in such grade and corps antedated that of such 
 officer (act Mar. 3, 1881, 21 Stat., 510, amend- 
 ing sec. 1486. R. S.). (File 111,30-37, Jan. 19, 
 1917; see also file 11130-63:5, Feb. 14, 1921.) 
 In determining the precedence of line and 
 staff officers (under (d) above noted), time spent 
 bv officers of the line while under instruction as 
 
 midshipmen was credited to them as service in 
 the Navy. When the midsliipman's course of 
 instruction was six years, this had the approxi- 
 mate effect of placing a staff officer, entering the 
 service \\'ith the rank of ensign, on an equality 
 for pnrpof5es of precedence with line officers 
 commis-sioned as ensigns at the same time. It 
 occasionally happened that the staff ofiicer was 
 disadvantaged under the practical application 
 of the various provisions under (f), noted above; 
 and when the course at the Naval Academy was 
 reduced to four years, by act of IMarch 7, 1912 
 (37 Stat., 73), the staff officer gained an ad- 
 vantage in consequence of his continuing to be 
 credited %vith constructive service of about six 
 years. However, the general purpose of the 
 legislation prior to March 4, 191.3, was to equal- 
 ize the precedence of line and staff officers 
 commissioned in the Navy ^vith the rank of 
 ensign at approximated the same time. (File 
 11130-37, Jan. 19, 1917, citing 15 Op. Atty. 
 Gen., 336; see also file 111.30-63:5, Feb. 14, 
 1921.) 
 
 A line officer transferred to a staff corps could 
 not under section 1486 as amended be assigned 
 a date of precedence earlier than that of the 
 junior officer in said corps at the time of such 
 transfer. Thus an ensign commissioned as an 
 assistant naval constructor with the rank of 
 lieutenant (junior grade), two and one-half 
 years before his former classmates were pro- 
 moted to the grade of lieutenant (junior grade) 
 in the line, could not retain his original date of 
 precedence where this was earlier that tliat 
 of an officer prcAdously commissioned in the 
 Constniction Corps. (File 11130-28, Feb. 5, 
 1916, citing file 1667, Apr. 25, 1900.) 
 
 In determining the precedence of staff officers 
 with officers of the tine, under section 1486, 
 Revised Statutes, line officers who gained 
 numbers as the result of their final graduating 
 examination at the Naval Academy (see sec. 
 1483, R. S.) were considered to have gained 
 length of service accordingly, and a staff officer 
 could not claim the right to precedence aliead 
 of a line officer so advanced in numbers because 
 of the fact that such line officer's actual date of 
 entrj.' into the ser\'ice was not six years prior 
 to the date such staff officer was commissioned. 
 (File 11130-2, Aug. 10, 1908.) 
 
 The amendment of March 4, 1913, was 
 intended to place commissioned officers of the 
 line and staff on an absolute equality in the 
 future, by abolishing credit for midshipman's 
 ser\-ice in the one case, and credit for con- 
 structive service in the other, and requiring 
 that all officers thereafter entering the Na\'y 
 should take precedence "according to their 
 respective dates of commission." At the same 
 time Congress did not intend to deprive mid- 
 shipmen already at the Naval Academy of sub- 
 stajitial benefits which were promised them in 
 the matter of pay and retirement when they 
 were appointed ; and accordingly, in providing 
 that service at the Naval Academy should not 
 thereafter be credited "for any pui-pose, " it 
 limited the application of this provision to mid- 
 shipmen thereafter appointed to the Naval 
 Academy. Thus was saved to other midsliip- 
 men the longevity credit to wliich they were 
 entitled under previous laws for pay and 
 retirement. But the act of March 4, 1913, did 
 
 692 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1486. 
 
 not preserve to midshipmen then serving the 
 credit to which they were entitled under pre- 
 vious laws for purposes of precedence with 
 officers of the staff. It destroyed the inequality 
 then existing, under which midshipmen were 
 credited with four years' service at the Acad- 
 emy while staff officers were credited with six 
 years' constructive service; but it did not 
 create a new inequality as would be the case 
 if midshipmen then at the Academy were 
 credited with four years' service for precedence, 
 while staff officers appointed from civil life 
 received no credit whatever. (File 11130-37, 
 Jan. 19, 1917.) 
 
 Scope of section 1486. — This section has 
 on occasions been regarded as appljdng only to 
 appointments from civil life. This, however, 
 is in error, the correct statement being that 
 section 1486 applies to all officers who are not 
 graduates of the Naval Academv. (File 
 11130-22, Nov. 17, 1913.) 
 
 A careful reading of section 1486 will disclose 
 that its benefits are not limited to staff oflicers 
 appointed from civil life, or from the enlisted 
 personnel. On the contrary, it applies to all 
 staff officers however appointed, except in so 
 far as its operation is restricted by section 1483, 
 Revised Statutes, fixing the precedence of 
 graduates of the Naval Academy. Had it been 
 intended to limit the provisions of section 1486 
 to staff officers appointed from civil life. Con- 
 gress would doubtless have so stated, as it did 
 in the Ka\'y personnel act of March 3, 1899, 
 section 13 (30 Stat., 1007), providing that "all 
 officers, including warrant officers, who have 
 been or may be appointed to the Navj' from 
 civil life shall, on the date of appointment, be 
 credited for computing their pay with five 
 years' constructive service." (File 11130-22, 
 Nov. 17, 1913.) 
 
 The department's records disclose that 
 persons commissioned as officers in the staff 
 corps of the Na\y, while serving as midship- 
 men, paymasters 'clerks, or enlisted men, were 
 given a date of precedence six years prior to 
 date of commission, or the earliest date that 
 could be assigned without gi\ing them pre- 
 cedence of senior officers in the same corps. 
 (File 11130-22, Nov. 17, 1913.) 
 
 Purpose of section 1486, — This pro\dsion, 
 which gave the benefit of six years of construc- 
 tive service in determining the question of 
 precedence among officers, was undoubtedly 
 intended to equalize the officers of the staff 
 with those of the line by provision which would 
 give them, in determining the question of rank, 
 a period wMch would be supposed ordinarily 
 to answer to the time which was expended by 
 the line officers in their education, and before 
 their proper duties as officers commenced. 
 Were it not for some such pro\T.sion, the officers 
 of the line would have an advantage over those 
 of the staff in tliis, that the period of their educa- 
 tion would be counted in determining their 
 precedence as the term of their service. As, 
 according to the construction which had been 
 given to the regulations of the Navy, six years 
 were expended by the line officers in their 
 education, it was undoubtedly deemed proper 
 to fix this as the time which should be given 
 to the staff officers, in order to equalize them 
 
 with the line officers. (15 Op. Atty. Gen,, 
 336; see also file 11130-63:5, Feb. 14, 1921.) 
 
 At this time certain cadet-engineers were 
 receiving education at the Naval Academy, 
 but then had only a term of education amount- 
 ing to two years. This term was subsequently 
 increased to four years; and it was. of course, 
 observed that, if the engineer officers grad- 
 uated at the Naval Academy were entitled to 
 have, in determining the question of rank, the 
 constructive service of six years, they woiild 
 obtain too great an advantage over the line 
 officers, because the term of their education 
 would be counted as a term of service, while 
 in addition, they would have what may be 
 termed the fictitious or constructive term of 
 service allowed to the officers of the staff corps. 
 The act of March 3, 1873 (sec. 1484, R. S.), 
 therefore, provided that "engineer officers 
 graduated at the Naval Academy shall take 
 precedence with all other officers with whom 
 they have relative rank, according to the 
 actual length of service in the Navy." While, 
 therefore, in the Revised Statutes section 1484 
 precedes section 1486, it is in fact a limitation 
 or exception to section 1486; and when thus 
 read together it vAW be seen that all staff officers 
 are entitled to the benefit of the six years' term 
 of service, with the exception of those engineer 
 officers who graduate at the Naval Academy. 
 (15 Op. Atty. Gen., 336; see also 21 Op. Atty. 
 Gen., 46.) 
 
 Changes in dates of precedence. — It has 
 heretofore been held by the department that 
 no change in dates of precedence should be 
 made except in cases where it is necessary so 
 to do for the purpose of rectifjdng palpable 
 errors (citing indorsement Sec. Nav. to Bu. 
 Nav., file 3126-97); it has also been held that 
 the statutes and regulations governing preced- 
 ence having once been determined in any par- 
 ticular case, considerations of repose intervene 
 and become important; that disturbance of 
 the Navy lists is prejudicial to the service, and 
 should not be sanctioned where doubt exists 
 respecting the appi^oj^riate action, and where a 
 considerable length of time has elapsed. (File 
 11130-22, Nov. 17, 1913, citing cases.) 
 
 Where only a short time has elapsed, and 
 there are exceptional circumstances, the date 
 of precedence assigned an officer of the Pay 
 Corps should be corrected and the proper date 
 of precedence assigned him, thereby avoiding 
 great injustice wliich would otherwise result 
 to such officer. (File 11130-22, Nov. 17, 1913.) 
 
 Effect of ofl&cer's precedence upon pro- 
 motion. — The actual rank of all officers of the 
 Navy has been fixed by section 1466, Revised 
 Statutes. But as there are in the staff corps 
 several officers of the same grade and rank, it 
 was necessary that their relative rank as be- 
 tween themselves and officers of the same rank 
 in the line be fixed and determined. _ This is 
 done by sections 1485 and 1486, and is deter- 
 mined not by relative dates of co mm ission but 
 by length of service in the Navy. These sec- 
 tions do not attempt to fix the actual rank which 
 staff officers hold in the Na\T. or to change that 
 rank as fixed by section 1466, but merely define 
 the relative rank which these officers have as 
 between themselves and with ofiicers of the 
 same rank in the line. That is, officers of the 
 
 693 
 
Sec. 1486. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 same rank shall, aa between themselves, take 
 precedence accordins: to their lensrth of service. 
 Tims, a captain in a staff corps will take prece- 
 dence of a cuptaiii in the same or a different 
 corps, or a captain in the line whose service in 
 either case has been for a shorter time than his. 
 But in estimating lii.« lentrth of service the staff 
 ofHcer is, under -section 1 ISG, credited with six 
 years more of ser\-ice than the line oflicers, this 
 givine: the staff oflicer precedence of line officers 
 of tLe same rank but wlio have not served six 
 years more than he; while as between staff 
 officers actual lens:th of service determines the 
 order of precedence. But there is nothina; in 
 these sections which gives to len<];th of ser\ice, 
 either actual or comparative, the effect of pro- 
 moting an oTicer to a hiirher actual rank. 
 Promotions in rank are regulated by different 
 provisions, ''"hey merely fix the reIati^•e rank 
 or precedence between officers of the same rank 
 and who, but for this, would ha^e been e' ual 
 in rank and precedence. And the use of the 
 word "precedence" instead of 'rank" is also 
 significant as showing that this was the purpose 
 of the section. Accordinglv, held that the act 
 of June 29, 1906 (:i4 Stat.,'554), providing for 
 the retirement of certain officers of the I^ a^-y, 
 authorizes their retirement with the rank of the 
 next higher grade, and where there are more 
 ranks than one in the next higher grade, as in 
 the staff corps of the Na^y , the officer is entitled 
 on the retired li"t to the rank next above that 
 held bv him at the time of retirement, and is 
 not entitled on the retired list to a rank more 
 than one step aboA'^^e that held at retirement 
 because of length of serAace in the Na^y ; and 
 that sections 1485 and 1486 have nothing what- 
 e\er to do with determining whether the ad- 
 vancement of such officer should be that of one 
 rank or more than one; nor do those sections 
 interfere with or affect the usual order of pro- 
 motion of such officers in the Navy. (26 Op. 
 Atty. Gen., 496.) 
 
 In the absence of some specific pro\asion of 
 law the distribution of paymasters between the 
 ranks allowed in said grade is primarily within 
 the discretion of the Executive. Sections 
 1485 and 1486, Revised Statutes, provide for 
 establishing the precedence of officers of the 
 staff corps between officers of the same corps, 
 officers of the different staff corps, and officers 
 of the same rank in the line of the NaA-y. It 
 has been the practice of the Navy Department 
 for many years to use the statutes to fix the 
 date on which staff officers shall attain a liigher 
 rank. The staff officer takes precedence next 
 below a certain line officer of the same credited 
 servdce. This line officer is known in the serv- 
 ice as the staff officer's '"running mate" and 
 by the practice referred to, when the "running 
 mate" is regularly promoted, or fails in exami- 
 nation, the staff officer is advanced to the higher 
 rank. The Executive having the discretion as 
 to the changing of ranks in the grade of paymas- 
 ter may, of course, act directly in each case 
 and appoint or notify the officer that he is 
 appointed or advanced on the date of the noti- 
 fication or on a date subsequent thereto. He 
 may also make regulations providing for the 
 ascertainment of the date upon which the staff 
 officer is entitled to advancement. He has not 
 made such regulations; but by a practice which 
 
 is said to ha\'e existed for 60 years has estab- 
 lished the rule above stated by which to deter- 
 mine the date upon which the officer shall be 
 advanced. Such long-established practice istlie 
 equivalent of a regulation. (16 Comp. Dec, 
 662.) Note. — At the time this decision was 
 rendered the Navy Regulations (1913) provided 
 (art. R 1005) that "civil engineers shall be 
 advanced in rank to the two grades of lieutenant 
 commander and lieutenant on the same date 
 and with the line officers with whom they take 
 precedence, in the same manner as officers of 
 the other staff corps of the Nai-y . " It hiis since 
 been provided by law that "officers of the lower 
 grades of the Medical Corps, Pay Corps (now 
 Supply Corps), Construction Corps, and Corps 
 of Civil Engin >ers shall be advanced in rank 
 up to and including the rank of lieutenant com- 
 mander with the officers of the line with whom 
 or next after whom they take precedence under 
 existing law" (act Aug." 29, 1916, 39 Stat., 576), 
 and that the advancement of staff officers of the 
 Navy to the ranks of commander, captain, and 
 rear admiral shall be by selection (act July 1, 
 1918, 40 Stat., 718). 
 
 Section 1485 fixes precedence of officers of 
 the staff cor]>s without affecting their rank or 
 office. (31 Op. Atty. Gen., 80.) 
 
 "OflB.cers -who have been advanced or 
 lost numbers." — A line officer promoted by 
 selection to the next higher grade is to be re- 
 garded as having been advanced in numbers 
 on the Navy Register and gained length of 
 service accordingly; he should be credited 
 with a constructive length of service necessary 
 and sufticient to place him above the officers 
 over whom he was thus advanced. The offi- 
 cers over whom he was advanced are not to be 
 regarded as having lost numbers and length of 
 service. _ The promotion by selection is to be 
 accomplished, not by inflicting any injury 
 upon officers who had been less fortunate, per- 
 haps, in their opportunities; but by conferring 
 promotion upon the officer advanced. The 
 proceeding is one of advancement strictly, and 
 m no case operates to degrade any officer or 
 deprive him of anything which he had already 
 obtained by length of serWce. Cases might 
 be supposed in which it might do him inciden- 
 tal injury by placing above him an officer who 
 stood below him, but his own position with 
 reference to all grades of the NaA-y would be 
 that which it originally was. Therefore in 
 regulating the relative rank of the staff and 
 the line, under section 1486, Revised Statutes, 
 no officer of the line would be found to have 
 lost anything of his actual length of ser\dce. 
 Quaere: Whether the phrase, "officers who 
 have been advanced or lost numbers on the 
 Navy Register shall be considered as having 
 gained or lost length of service accordingly," 
 is intended to use the words "gained" and 
 " lost" as terms which are the converse of each 
 other aiid refers to such incidental loss as occurs 
 by change in relative position between officers, 
 or whether the expression, " lost length of serv- 
 ice," is to be considered as referring to those 
 officers who may have been degraded, as by 
 sentence of court-martial? (17 Op. Atty. 
 Gen., 56.) 
 
 In 17 Op. Atty. Gen., 56 (noted above), the 
 case was presented of a line officer, Francis M. 
 
 694 
 
The Navy. 
 
 rt. J. REVISED STATUTES. 
 
 Sec. 1487. 
 
 Ramsay, who entered the service on October 5, 
 1850, and who, under the act of July 25, 1866 
 (14 Stat., 222), was promoted by selection and 
 thereby advanced on the NaA'y Register next 
 above a line officer, Richard L. Law, who 
 entered the service February 17, 1841. The 
 Attorney General held that Ramsay should, 
 under section 1486, "be considered as having 
 gained length of service according to his pro- 
 motion." Following this opinion there was 
 published in the Na\y Re^ster of 1882, for the 
 first time, a precedence list of officers of the 
 Navy, and reference to this list (p. 167) shows 
 that Capt. Ramsay was given, pursuant to 
 the Attorney General's opinion, a date of pre- 
 cedence as February 17, 1841, being the same 
 date as that held by Capt. Law, next above 
 whom Ramsay was so advanced. Thus Ramsay 
 was credited with constructive ser\T.ce of more 
 than nine years for purposes of precedence. 
 This opinion of the Attorney General continued 
 to be followed by the Navy Department until 
 a comparatively recent date in the publication 
 of precedence tables in the annual Navy 
 Register. (File 11130-63:5, Feb. 14, 1921, 
 citing precedents.) 
 
 The first departure from the rule required by 
 the Attorney General's opinion (17 Op. Atty. 
 Gen., 56) appears to have occurred in certain 
 cases of staff officers who were advanced to the 
 rank of rear admiral in 1910, without any change 
 in their dates of precedence. No explanation 
 of this departure is forthcoming, other than that 
 the Attorney General's opinion and the manda- 
 tory pro\asion of section 1486 must have been 
 overlooked or disregarded without authority of 
 law. Similarly, in the cases of certain officers, 
 line and staff, who have been advanced to the 
 ranks of commander, captain, and rear admiral 
 by selection in accordance with the acts of 
 August 29, 1916 (39 Stat., 578), and July 1, 1918 
 (40 Stat., 718), such advancement has not been 
 accompanied by any change in their dates of 
 precedence as required by the Attorney Gen- 
 eral's opinion and section 1486. (File 11130 
 63:5, Feb. 14, 1921.) 
 
 Held, that officers of the line and staff of the 
 Navy, who entered the Navy prior to March 4, 
 1913, and who have been advanced on the Navy 
 Register, should be credited, for purposes of 
 precedence, in accordance with section 1486, 
 with "constructive ser\T.ce" sufficient to place 
 
 them ahead of all others, line and staff, over 
 whom they have been so advanced. This 
 applies as much where officers have been ad- 
 vanced by selection over officers in their o^vn 
 corps as in any other case. (32 Op. Atty. Gen., 
 476, Mar. 3, 1921, following 17 Op. Atty Gen., 
 56.) 
 
 The advancement of an officer in numbers 
 pursuant to a special act of Congress (Sept. 30, 
 1890, 26 Stat., 552, case of Chief Engineer 
 George Wallace Mehdlle), operates to make 
 him gain length of ser\ice under section 1486, 
 Re\dsed Statutes, but this proxdsion of that 
 section has reference only to the question of 
 rank and precedence mentioned in section 
 1485, and does not operate to increase his length 
 of sendee for purposes of pav. The act of 
 March 3, 1883 (22 Stat., 473),"pro\dding that 
 officers shall be credited with '"the actual time 
 they may have served as officers or enlisted men 
 in the Regular or Volunteer Army or Nav\'', 
 or both," relates to crediting actual ser\-ice 
 which is distinct from constructive ser\'ice 
 which an officer gains under section 1486 by 
 advance in numbers. (5 Comp. Dec, 756.) 
 
 Where a warrant officer is sentenced by 
 court-martial to loss of niiml>ers, the effect of 
 which is to place him below an officer of a 
 later date of appointment, he is to be regarded 
 as haAing lost length of serWce accordingly, 
 and is not entitled to promotion under the act 
 of April 27, 1904(33 Stat., 346), which author- 
 izes the promotion of warrant officers "after 
 six years from date of warrant," until the officer 
 next above him in the list has become due for 
 promotion. (File 17789-20, Dec. 18, 1913; 
 approved by President, Feb. 18, 1914.) 
 
 Miscellaneous. — A Na\'y regulation pro- 
 ^^Lding that, '" in al cases where commissioned 
 office s of the different corps have the same 
 date of precedence, they shall take rank as 
 follows: 1. Line officers. 2. Medical officers. 
 3. Pay officers. 4. Engineer officers, "is within 
 the authority conferred upon the Secretary of 
 the Na\^ by Re\dsed Statutes 1547. (21 Op. 
 Atty. Gen., 46.) 
 
 Qu?ere: Whether the question could be pre- 
 sented in any form for judicial determination, 
 whether the practice of the Naw Department 
 with regard to the rank and precedence of offi- 
 cers conforms to section 1485 of the Re\dsed 
 Statutes? (U. S. v. Alger, 152 U. S., 384, 397.- 
 
 Sec. 1487. [Quarters.] No staff officer shall, in virtue of his relative rank 
 or precedence, have any additional right to quarters. — (3 Mar., 1871, c. 117, 
 s. 10, V. 16, p. 537.) 
 
 Amendment to this section was made by act of 
 March 3, 1899, section 7 (30 Stat., 1006), 
 which abolished ■'relative" rank and sub- 
 stituted actual rank therefor. 
 
 Allowances for officers of the Army are made 
 applicable to officers of the Navv by act of 
 March 3, 1899, section 13 (30 Stat., 1007), 
 which pro^'ided that commissioned officers 
 of the line of the Navy and of the Medical 
 and Pay Corps shall receive the same 
 allowances, except forage, as may be pro- 
 vided by or in pursuance of law for the 
 officers of corresponding rank in the Army. 
 By act of May 13, 1908 (35 Stat., 128), "it 
 
 was provided that "hereafter all commis) 
 sioned officers of the active list of the Nav'y 
 shall receive the same pay and allowances 
 according to rank and length of service." 
 However, the same act made an exception 
 in the cases of chaplains, by providing that 
 "the pay and allowances of chaplains in 
 the Navy shall in no case exceed that pro- 
 vided for lieutenant commanders." This 
 exception was removed bv act of August 
 29, 1916 (39 Stat., 581), which reenacted 
 the provision in the act of May 13, 1908, 
 without such exception. The correspond- 
 ing ranks of officers of the Army and officers 
 
 695 
 
Sec. 148' 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 of the Navy are prescribed by section 1466, 
 Revised Statutes. The designation of the 
 "Pay ('orps" was changed to '" Supply, 
 Corps" bv act of July il, 1919 (41 Stat., 
 147). 
 
 " During the war, in such cases as may be ap- 
 proved l)y the Secretary of the Navy, this 
 appropriation shall be available for the hire 
 of (jiiarters for ollicers attached to sub- 
 marines when they are required to be on 
 shore and (iovernment cjuarters are not 
 available." (Act July 1, 1918, 40 Stat., 
 728, pro\iso to appropriation for "Pay of 
 the Na\y," wldch apj)ropriation also makes 
 provision ''for hire of quarters for ollicers 
 serAang with troops where there are no 
 public quarters belonging to the Govern- 
 ment, and where there are not sufficient 
 quarters possessed by the United States 
 to accommodate them, or commutation 
 of quarters not to exceed the amount which 
 an oflicer would receive were he not serv- 
 ing with troops and hire of quarters for 
 officers and enlisted men on sea duty at 
 such times as they may be deprived of their 
 quarters on board ship due to 'repairs or 
 other conditions which may render them 
 uninhabitable.") 
 
 "During the present emergency every com- 
 missioned otlicer of the Army of the United 
 States on duty in the field, or on active 
 duty without the territorial jurisdiction 
 of the United States, who maintains a 
 place of abode for a wife, child, or depend- 
 ent parent, shall be furnished at the place 
 where he maintains such place of abode, 
 without regard to personal quarters fur- 
 nished him elsewhere, the number of rooms 
 prescribed by the Act of March second, 
 nineteen hundred and seven (Thirty- 
 fourth Statutes, page eleAen hundred and 
 sixty-nine), to be occupied by, and only 
 Bo long as occupied by, said vdie, child, 
 or dependent parent; and in case such 
 quarters are not available every such com- 
 missioned officer shall be paid commuta- 
 tion thereof and commutation for heat and 
 light at the rate authorized by law in cases 
 where public quarters are not available; 
 but nothing in this Act shall be so con- 
 strued as to reduce the allowances now 
 authorized by law for any person in the 
 Army." (Act Apr. 16, 1918, 40 Stat., 530.) 
 By naval appropriation act of July 11, 
 1919 Ml Stat., 140), it was provided that 
 said act of .April 16, 1918, "granting under 
 certain conditions, to every commissioned 
 officer of the Army the right to quarters 
 in kind for their dependents or the author- 
 ized commutation therefor, including the 
 allowances for boat and light, shall here- 
 after be construed to apy)ly to officers of 
 the Navy and Marine Corps only during 
 the period of the war an.i in no event be- 
 yond October 1, 1919." Said enactment 
 of July 11, 1919, was expressly repealed 
 by Joint Resolution of December 24, 1919 
 (41 Stat., 384), which further provided 
 that officers of the Navy and Marine Corps 
 "shall be entitled to all the rights and 
 benefits under said act of April 16, 1918 
 (Public, numbered 129), from and after 
 
 October 1, 1919, and during the present 
 emergency." By act of May 18, 1920 (41 
 Stat., 602), said allowances under the 
 Act of .\pril 16, 1918, were continued until 
 June 30, 1922. 
 
 "Hereafter the Secretary of the Navy may 
 determine where and when there are no 
 public (juarters available for persons in the 
 Navy and Marine Corps, or serving there- 
 with, within the meaning of any acts or 
 parts of acts relating to the assignment of 
 quarters or commutation therefor." (Act 
 July], 1918, 40 Stat., 718.) 
 
 "Hereafter officers temporarily absent on duty 
 in the field shall not lose their right to 
 quarters or commutation thereof at their 
 permanent station while so temporarily 
 absent." (Act Feb. 27, 1893, 27 Stat", 
 480.) 
 
 Marine officers are entitled to receive the same 
 allowances as are or may be provided by or 
 in pursuance of law for the officers of like 
 grades in the infantry of the Army. (Sec. 
 1612, R. S.) 
 
 Special allowances for maintenance to officers 
 serving under unusual conditions may be 
 paid from the appropriation "Pay, Mis- 
 cellaneous." (Act June 4, 1920, 41 Stat., 
 813.) 
 
 The allowance for quarters to officers of the 
 Army is prescribed by act of March 2, 1907 
 (34 Stat., 1168, 1169), amending act of June 
 17, 1878, section 9 (20 Stat., 151), to read 
 as follows: "That at all posts and stations 
 where there are public quarters belonging to 
 the United States officers may he fiu*nished 
 with quarters in kind in such public quar- 
 ters, and not elsewhere, by the Quarter- 
 master's Department, as-signing to the offi- 
 cers of each grade, respectively, such num- 
 ber of rooms as is stated in the following 
 table, namely: Second lieutenants, two 
 rooms; first lieutenants, three rooms; cap- 
 tains, foiu" rooms; majors, five rooms; 
 lieutenant colonels, six rooms; colonels, 
 seven rooms; brigadier generals, eight 
 rooms; major generals, nine rooms; lieu- 
 tenant general, ten rooms: Provided further, 
 That at places where there are no public 
 quarters commutation therefor may be 
 paid by the Pay Department to the -officer 
 entitled to the same at a rate not exceeding 
 twelve dollars per month per room. ' ' 
 
 The same act of March 2, 1907 (34 Stat., 1167), 
 also provided "that hereafter the heat and 
 light actually necessary for the authorized 
 allowance of quarters for officers and en- 
 listed men shall be furnished at the ex- 
 pense of the United States under such 
 regulations as the Secretary of War may 
 prescribe." 
 
 By act of March 4, 1915 (38 Stat., 1069), it was 
 provided "that hereafter, at places where 
 there are no public quarters available, 
 commutation for the authorized allowance 
 therefor shall be paid to commissioned offi- 
 cers, acting dental surgeons, veterinarians, 
 members of the NiU'se Corps, and pay clerks 
 at the rate of $12 per room per month." 
 (As to the corresponding ranks between 
 officers of the Armv and officers of the 
 Navy, see sec. 1466, R. S.) 
 
 696 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1487. 
 
 Transportation to be furnished families of 
 officers ordered to make a permanent 
 change of station. (Act May 18, 1920, sec. 
 12, 41 Stat., 604.) 
 Warrant officers and mates "shall hereafter re- 
 ceive the same commutation for quarters 
 as second lieutenants of the Marine Corps " 
 (act Mar. 3, 1901, 31 Stat., 1107); and 
 "shall receive the same allowances of heat 
 and light as are now or may hereafter be 
 allowed an ensia;n. United States Navy." 
 (Act Aug. 29, 1916, 39 Stat., 578.) 
 Army laws fixing the allowance for 
 quarters are applicable to the Navy under 
 the act of March 3, 1899, section 13 (SO' Stat., 
 1007), and May 13, 1908 (35 Stat., 127, 128), as 
 amended by act of August 29, 1916 (39 Stat., 
 581). (24 Comp. Dec, 610.) 
 
 Under the law all commissioned officers of the 
 Navy are now entitled to the same allowances, 
 except forage, as provided by law for co mmis - 
 sioned officers of the Army under corresponding 
 conditions. (File 26255-471:2, Apr. 13, 1918; see 
 also 15 Comp. Dec, 809, 812, citing 27 Op. Atty. 
 Gen., 261; and see 150 S & A. Memo., 2753.) 
 
 Comniutation of quarters authorized 
 prior to specific legislation. — In Whittlesey 
 V United States (5 Ct. Cls., 99), it was held that 
 the right of an officer of the Army to comrnuta- 
 tion of fuel and quarters did not, at that time, 
 rest upon any specific legislation; that it 
 sprung out of the general authority of the War 
 Department, and had 1 )een indirectly sanctioned 
 bv Congress from the origin of the Govern- 
 ment. In United States v. Phill)rick (120 
 U. S., 52), it was held that an order of the 
 Secretary of the Navy, issued ]\Iay 23, 1866 
 (G. O. No. 75), allowing officers who were not 
 provided with quarters on shore stations a sum 
 equal to one-third of their pay in lieu of all 
 allowances except for mileage or traveling ex- 
 penses under orders, was a valid order under 
 the law as it then stood. (See also Allen v. U. 
 S., 22Ct. Cls.,300.) 
 
 Authority for quarters does not impli- 
 edly authorize commutation. — Commuta- 
 tion for quarters, fuel, and light not furnished to 
 an officer or enlisted man can not be paid unless 
 authorized by some statute or regulation — that 
 is, the right to commutation does not arise auto- 
 matically but must be based upon some specific 
 provision of law. Accordingly, where an en- 
 listed man was entitled by Army Regulations 
 to quarters at the rate of one room, and by statute 
 was entitled to heat and light for the same, and 
 was not furnished the quarters or heat and light, 
 he is not entitled to commutation in the absence 
 of any statute or authorized regulation pro-x-id- 
 ing for the pa>anent of such commutation. 
 (Smith V U. S., 47 Ct. Cls., 313, holding that 
 the second leader of< the Marine band, who 
 under statutes then in force was entitled to the 
 pay and allowances of a sergeant major, was not 
 entitled to commutation for quaters as there was 
 no law or regulation authorizing such commuta- 
 tion in the case of a sergeant major.) 
 
 Assignment of quarters. — \\liere there are 
 different classes of public officers entitled to 
 quarters in kind or commutation thereof, the 
 Secretary of the Navy must be the judge of how 
 the interest of the Governrrient may best be 
 served in assigning the available quarters. If 
 
 civilian jjrofessors at the Naval Academy are 
 allowed quarters in kind or commutation there- 
 of as part of their compensation fixed by the 
 Secretary of the Navy, they would have an 
 equal right thereto Avith conunissioned officers 
 entitled to quarters in kind or commutation 
 thereof; and the Secretary of the Navy may' ex- 
 ercise his discretion in determining whether it 
 is to the best interest of the Government to 
 assign the available quarters at the Naval Aca- 
 demy to the civilian professors or to the com- 
 missioned officers. (File 11168-4, Feb.l, 1917.) 
 
 The question of assignment of quarters is an 
 administrative one, under the control of the 
 Secretary of the Navy, whose orders, regulations, 
 and decisions thereon are binding upon all per- 
 sons in the naval 8er\dce; and is not a question 
 under the jurisdiction of the Comptroller of the 
 Treasury. The Secretary of the Navy is pre- 
 pared to safeguard to the fullest extent the 
 interests of officers who make payments in 
 accordance with any regulation or order issued 
 by him. (File 26254-2134, Dec. 19, 1916.) 
 
 Quarters permanentl}^ assigned are not avail- 
 able for temporary assignment during periods 
 that they become vacant in consequence of 
 changes of stations, etc. , and no quartersassigned 
 any officer are available for reassingment dur- 
 ing the temporary absence of the occupants on 
 duty for which the law permits them to be 
 absent without reduction of pay and allowances. 
 (File 26254-2134, Dec. 19, 1916; see also file 
 26254-2120:1, Nov. 15, 1916. See below under 
 "Officer temporarily absent from station.") 
 
 The commandant of a navy yard is not auth- 
 orized to assign to other than Marine officers 
 quarters at the navy yard under his command 
 which were constructed for the use of Marine 
 officers attached to said yard, even though such 
 quarters may be temporarily unoccupied by 
 Marine officers, in the absence of an order by 
 the Secretary of the Navy permitting the trans- 
 fer of such quarters for the use of officers of the 
 Navy. In the absence of such order, officers of 
 the Navy for whom no quarters are available 
 are entitled to commutation of quarters. (File 
 26254-2134, Dec. 19, 1916.) 
 
 Where quarters at a navy yard are jjerma- 
 nently assigned for the use of officers detailed to 
 specified positionsatsaid yard,andsuch quarters 
 are temporarily vacant by reason of the change 
 of station of said occupants or other similar ex- 
 igency of the service, such temporarily vacant 
 quarters should not be assigned to officers re- 
 porting for duty in the interim, unless such 
 officers occupy positions at the naAy yard which 
 would entitle them to such quarters perma- 
 nently. (File 2743-247, Bu. Nav., 26254-1418, 
 Sec. Nav., Feb. 19, 1914; see also file 26254^21.34, 
 Dec. 19, 1916.) 
 
 Hire of quarters. — ^The amount to be paid 
 for hire of quarters for officers has no relation 
 whatever to the amount of commutation of 
 quarters to which they may be entitled under 
 certain circumstances. In hiring qxiarters the 
 officer representing the Government is supposed 
 to procure necessary, reasonable, and assuitable 
 quarters as may be obtained, and on the best 
 terms possible, and when thus procured they 
 are to be assigned to the officers entitled to the 
 same in the same manner as quarters owned by 
 
 697 
 
Sec. 1487. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 the Government. (Comp. Dec, Feb. 2, 1917, 
 192 S. & A. Memo., 4155. Note.— The specific 
 question decided in this case was overruled 
 by Comp. Dec, Apr. 12, 1917, file 26254-2131:7, 
 noted below.) 
 
 The Secretary of the Navy authorized the 
 commandant of the naA-y yard. Mare Island, to 
 hire quarters for the officers of the third sub- 
 marine division, temporarily, while the vessels 
 of that di^^sion were undergoing repairs which 
 made them uninhabitable, there being no 
 tender on which they could be quartered and 
 no quarters available at the yard. The com- 
 mandant directed the yard pay officer to arrange 
 for the hire of the quarters required, and to pay 
 for them from the appropriation "Contignent, 
 Navy, " stating that the payment in no case 
 should exceed the amount that each officer 
 would be allowed as commutation of quarters 
 according to his rank and for the time that 
 quarters should be occupied. The quarters 
 were hired by the officers concerned, and in no 
 case did the cost thereof exceed the allowance 
 for the number of rooms to which their respec- 
 tive ranks entitled them, nor were the prices 
 paid in excess of those usually charged the gen- 
 eral public for temporary occupancy. The 
 amounts so paid for said quarters were disal- 
 lowed by the Comptroller on the ground that 
 the officers occupying the quarters, being di- 
 rectly and personalh'' interested, could not 
 properly represent the Government but only 
 themselves. (Comp. Dec, Feb. 2, 1917, file 
 26254-2131:6, 192 S. & A. Memo., 4155.) On 
 reconsideration, the Comptroller allowed the 
 payments for hire of quarters in these cases, 
 but stated : " It is expected that in future when 
 it becomes necessary to hire quarters for officers 
 the Government will be represented in making 
 the contract for hire by some properly desig- 
 nated official other than the officer or officers 
 who are to occupy the hired quarters." 
 (Comp. Dec, Apr. 12, 1917, file 26254-2131:7.) 
 
 The Army Regulations pro\ide for the rent- 
 ing of quarters where the public buildings are 
 inadequate, but the authority to rent is re- 
 served expressly to the Secretary of War and 
 can not be exercised without his approval. 
 Under the Army Regulations the practice has 
 been for the proper officers to obtain the 
 necessary authority to hire quarters as pre- 
 scribed in the Regulations, and deal directly 
 with the landlord, making disbursements 
 directly to him through the Department of 
 War, thus precluding the making of indi\Tdual 
 contracts of rental for quarters. There is no 
 r^ulation permitting individual discretion 
 or opinion as to the inadequacy of Army 
 quarters. Accordingly, where an officer has 
 quarters assigned him which are inadequate 
 for himself and wife, and rents rooms outside 
 his station without approval of the Secretary of 
 War, he can not recover commutation or hire 
 of quarters. (Moses v. U. S., 41 Ct. Cls., 27.) 
 
 There is no authority of law for the hire of 
 quarters on shore for naval officers on sea duty, 
 the law presuming that ofiicers on sea duty shall 
 have quarters on board the vessel on which 
 they are serving. This applies in the case of 
 officers ordered to duty on board a submarine 
 tender, where there are no public quarters 
 available for such officers either on board said 
 
 vessel or on shore. (23 Comp. Dec, 109. But 
 see act July 1, 1918, quoted above.) 
 
 The annual naval appropriation act pro- 
 vides for '"hire of quarters for officers and 
 enlisted men on sea duty at such times as they 
 may be deprived of their quarters on board 
 ship due to repairs or other conditions which 
 may render them uninhabitable." (See Act 
 June 4, 1920, 41 Stat., 824.) 
 
 "No public quarters" defined. — lender the 
 act of June 18, 1S7S, section 9, providing with 
 reference to the Army "that at places where 
 there are no public quarters, commutation 
 therefor may be paid by the Pay Department 
 to the officer entitled to the same," etc., hfid 
 that officers are entitled to commutation of 
 quarters at places where the public quarters 
 are "insufficient"' in quantity, "for at such 
 stations, in regard to all officers necessarily 
 excluded from public quarters, there are, with- 
 in the meaning of the proviso, 'no public 
 quarters.' " (16 Op. Atty. Gen., 611.) 
 
 Under the law commissioned officers of the 
 Navy are entitled to commutation of quarters 
 "at places where there are no public quarters 
 available" (act Mar. 4, 1915, 38 Stat., 1069); 
 and the question whether or not there are 
 "public quarters available," is to be de- 
 termined by the Secretary of the Navy in 
 proper cases. (File 28479-141, Nov. 15, 1915; 
 see act July 1, 1918, quoted above.) 
 
 Public quarters are any suitable quar- 
 ters provided by the Government. — Any 
 suitable quarters pro^dded by the Government 
 for the use of an officer answers the requirement 
 for "public quarters," though not expressly 
 built for Army officers and an officer assigned 
 to duty as an Indian agent and furnished a 
 suitable building on the reservation for his 
 quarters, without charge, is not entitled to 
 receive commutation for quarters. (U. S. v. 
 Dempsey, 104 Fed. Rep., 197.) 
 
 Officer occupying tent. — ^An officer de- 
 tached from duty at a station where he was in 
 receipt of commutation of quarters and ordered 
 to duty with the Navy rifle team and furnished 
 a tent for quarters while on such duty, is not 
 entitled to commutation of quarters. The fact 
 that he was put to the expense of providing 
 quarters elsewhere for his family does not 
 affect his right to quarters or commutation 
 therefor while on duty with the Navy rifle 
 team. (Comp. Dec, Aug. 15. 1914. 162 S. & A. 
 Memo., 33360 
 
 Officer occupying room as guest. — ^Where 
 an officer of the Medical Corps of the Navy 
 requests to have quarters assigned him at his 
 station, but there are no quarters that can be 
 assigned, and he occupies a room in the Marine 
 Barracks as a guest, with the understanding 
 that he will vacate it whenever required to do 
 so, he can not recover commutation for quar- 
 ters. Commutation is a form of reimbursement; 
 where there was no expense for quarters, as in 
 this case (the occupied quarters being a part of 
 the naval establishment of the United States), 
 there can be no reimbursement in fact and 
 therefore none allowed by law. If the officer 
 had occupied quarters not belonging to the 
 United States and was otherwise entitled to 
 quarters, the fact that he was not charged for 
 tne use of the quarters would not be material 
 
 698 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1487. 
 
 and would not affect the right and obligation 
 of the parties, but when the quarters occupied 
 belonged to the United States, there is no legal 
 right of recovery. (Odell v. U. S., 38 Ct. Cls., 
 194.) 
 
 Officer assigned less than full number 
 of roonis to which entitled. — An officer on 
 duty at a station where public quarters are 
 available is not entitled to commutation of 
 quarters, even though he can not be assigned 
 the full number of rooms to which his rank en- 
 titles him. (Comp. Dec, Oct. 31, 1913, 153 
 S. & A. Memo., 2854. See also file 9886-16, 
 Oct. 15, 1908, 20032-4, Nov. 27, 1908, and 
 28479-141, Nov. 15, 1915.) 
 
 A naval officer whose rank entitles him to 
 four rooms, but who had but one room hir- 
 nished him for quarters, because there were no 
 other public quarters available at his station, 
 can not be allowed commutation for quarters. 
 The theory of commutation is compensation or 
 reimbursement for something paid out. In 
 this case the officer was relieved from ex- 
 pense and did not become entitled to recover 
 the value of quarters not paid for by him. (Ir- 
 win V. U. S., 38 Ct. Cls., 87, 103.) 
 
 The quarters fitted up at the aeronautic 
 station, Pensacola, Fla., for officers attending 
 the flying school were intended to accommo- 
 date one officer in each room. It is desirable 
 to quarter as many officers at the station as 
 possible in order that they may be available 
 at all times for flying. The hours of flying mist 
 conform to the weather conditions, especially 
 for student a\'iator8. There are not sufficient 
 quarters available to assign each officer at the 
 station the number of rooms authorized for 
 his rank. Under these circumstances, an 
 officer whose rank entitles him to four rooms, 
 and who has been assigned one room at said 
 station, is not entitled to the assignment of 
 three additional rooms or to commutation of 
 quarters if the Secretary of the Navy decides 
 that he should be quartered at the station and 
 that there are quarters available for him at 
 said station. (File 28479-141, Nov. 15, 1915.) 
 
 In the assignment of quarters to officers at the 
 Naval Academy the determining factor should 
 be whether it is necessary for the proper per- 
 formance of the officer's duties that he reside 
 inside the academy limits. If in the judg- 
 ment of the superintendent this is necessary 
 the officer should be assigned such quarters 
 as may be available; if not necessary and 
 there are no quarters available commensurate 
 with his rank, the officer may be permitted to 
 reside outside the grounds and he will be 
 entitled to commutation of quarters upon cer- 
 tificate of the superintendent that there were 
 no quarters available during the rjeriod. (File 
 9886-18, Dec. 11, 1908.) 
 
 Officer attached to vessel of the Navy. — 
 An officer sening on board a vessel of the Navy, 
 under orders, can not acquire any right to 
 commutation of quarters for the reason that 
 Congress has not attached any such allowance 
 to his office for service at sea on board of a ves- 
 sel. (Comp. Dec, Aug. 28, 1917, 198 S. & A. 
 Memo., 4357.) 
 
 When an officer of the Navy is on receiving- 
 ship duty, and the ship acting as recei\'ing ship 
 is detached from such duty, no other ship 
 
 being designated in its place, if the situation 
 is to be permanent in character, the officer is 
 in a shore-duty status and becomes entitled, 
 in the event that quarters in kind are not 
 furnished him, to comnmtation of quarters; 
 but if such situation is only temporary, the 
 officer remains in a sea-duty status and is not 
 entitled to commutation of quarters but must 
 provide his own quarters. (Comp. Dec, 
 July 3, 1917, 197 S. & A. Memo., 4300.) 
 
 A retired officer was ordered to active duty 
 in time of war as commanding officer of a re- 
 ceiving ship. Under the regulations then in 
 force governing the receiving-ship system, 
 ships in commission were designated as receiv- 
 ing ships, retaining their own commanding 
 officer as such ships in commission and in ad- 
 dition thereto having a commanding officer in 
 their added fimction as receiving ships. ^ There 
 was a ship in commission actually designated 
 as receiving ship at the station in question. 
 The retired officer did not actually assume 
 command of the receiving ship as such, but 
 served on shore in a building used for such 
 purpose, where he performed the duties^ of 
 commanding officer of a nominal receiving 
 ship. His orders to duty as cornmanding 
 officer of a recei\'ing ship assigned him to sea 
 duty and did not entitle him to commutation 
 of quarters, even though said orders referred to 
 this duty as "shore duty." However, upon 
 the detachment of the ship which had been 
 designated as receiving ship, and during the 
 period thereafter while there was no ship 
 actually designated as receiving ship at said 
 station, the officer may be allowed commuta- 
 tion of quarters, in view of the emergency con- 
 ditions which existed, although it would seem 
 that his orders to duty as commanding officer 
 of the receiving ship were in effect canceled 
 by the detachment of the ship, and new orders 
 not having thereafter been issued to him, the 
 duties he thereafter performed as commanding 
 officer of a nominal receiving ship were not in 
 obedience to any orders. (Comp. Dec, Aug. 
 28, 1917, 198 S. & A. Memo., 4357.) 
 
 Service of naval officers on board vessels is 
 "duty in the field" within the meaning of the 
 act of April 16, 1918 (40 Stat., 530, quoted 
 above), relating to commutation of quarters 
 for officers of the Army, which act applies to 
 the Navy by virtue of section 13 of the Navy 
 personnel act of March 3, 1899 (30 Stat., 1007), 
 and the act of August 29, 1916 (39 Stat., 581). 
 Under these laws all commissioned officers of 
 the Navy are now entitled to the same allow- 
 ances, except forage, as provided by law for 
 commissioned officers of the Army, under 
 corresponding conditions. (File 26255-471: 2, 
 Apr. 13, 1918, citing 12 Comp. Dec, 291, 293, 
 and Ex parte Gerlach, 247 Fed. Rep., 616.) 
 
 Commissioned officers of the Navy on the 
 active list on duty on vessels of the Navy are 
 "on duty in the field" and possess the same 
 right to commutation of quarters under the act 
 of April 16, 1918 (above quoted), as is conferred 
 by said act upon officers of the Army. (24 
 Comp. Dec, 610.) 
 
 For other cases, see below, "Officer tempo- 
 rarily absent from station," and see above, 
 "Hire of quarters." 
 
 54641°— 22- 
 
 -45 
 
 699 
 
Sec. 1487. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 Ofllcer awaiting orders. — An officer of the 
 Army "unassigned" and "awaiting orders" 
 at headquarters, who makes no application for 
 fuel ana quarters, and who does not show at 
 the trial of his claim in court that no quarters 
 were to be had at headquarters, is not entitled 
 to commutation therefor; but upon sho%ving 
 that there were no quarters at headquarters, he 
 is entitled to commutation. (Crosby v. U. S., 
 13Ct. Cls., 110.) 
 
 An officer of the Army who pursuant to orders 
 reporte<l to the headquarters of a department, 
 there to " a'n ait further orders, ' ' and wMle await- 
 ing orders was not furnished fuel or quarters, 
 is entitled to recover their commuted value. 
 It is immaterial that he performed no active 
 duty while thus awaiting orders. lie was sub- 
 ject to assignment to such duty, and the respon- 
 sibility for his nonemployment rested with his 
 superior officer. Where an officer is directed 
 to proceed toa place specified, there to await 
 orders, it is his duty to go to that place and to 
 remain there; he can not go elsewhere; he can 
 not return until ordered ; he is as much under 
 orders and can no more question the duty of 
 obedience than if ordered to an aml^ush to lie 
 in wait for the enemy. (U. S. v. Lippitt, 100 
 U. S., 663, affirming Lippitt v. U. S., 14 Ct. 
 Cls., 148, quoting U. S. v. Williamson, 23 Wall., 
 411, and distinguishing U. S. v. Phisterer, 94 
 U.S., 219.) 
 
 Officer at home awaiting orders. — ^An 
 officer of the Army at his own home awaiting 
 orders, ha^■ing been ordered there at his own 
 request and ha\dng no public duty whatever to 
 perform, is not entitled to commutation of 
 quarters. Quarters are expected to be fur- 
 nished by the Government to its officers; when 
 it can not thus furnish, it allows them to be 
 obtained otherwise, and pays a money compen- 
 sation therefor, called commutation. This is 
 upon the assumption, first, that the officers are 
 actually engaged in the pul)lic service; and, 
 second, that such quarters are necessary to the 
 discharge of their duty. It is upon the latter 
 idea tliat commutation for fuel and quarters is 
 not allowed to officers when in the field. The 
 duty there is public not only, but of the most 
 necessary character; still, apartments, kitchen, 
 and offices are not there necessary, and can not 
 be commuted for. The officer's home is not a 
 station in the sense that he is entitled to public 
 quarters or to a compensation in the form of 
 commutation therefor. (U. S. v. Phisterer, 
 94 U. S., 219.) 
 
 Officer at home performing duty. — A 
 payma.«ter in the Na\-y detached from his 
 vessel and ordered, "Proceed to your home in 
 the United States, settle your accounts, and 
 await orders, " is on duty during the period 
 prescribed by the regulations and orders of the 
 department for the making out of his accounts, 
 and for that period he is entitled to commuta- 
 tion of quarters, there being no public quarters 
 at his home which can be furnished to him. 
 So much of the order as provides that the offi- 
 cer shall "await orders" at his home does not 
 take effect until the period allowed for settling 
 his accounts has expired. (CoUioun v. U. S., 
 41 Ct. Cls., 31.) 
 
 A retired officer ordered to active duty in 
 connection with the Naval War College, whose 
 
 orders did not specify where the shore duty on 
 which he was to be employed should be per- 
 formed, and who selected his home as his 
 station for the performance of such duty, is 
 entitled to commutation of quarters notwith- 
 standing that he reported at the War College 
 by letter instead of in person. The assignment 
 of an officer to duty at any place makes that 
 place his post or station within the meaning of 
 those terms as used in the law granting commu- 
 tation of quarters. Where the choice is left to 
 the officer, the selection of his home for the 
 performance of the duty assigned him makes 
 it a post or station; the fact that he reported by 
 letter, as dkected, does not defeat his right to 
 commutation of quarters. (Comp. Dec, Apr. 
 14, 1910, 110 S. A. Memo., 1379.) 
 
 Officer undergoing trial by court-mar- 
 tial or by civil authorities. — ^An officer of the 
 Army ordered to report for tiial by court-martial 
 at a place where quarters can not be assigned 
 to him is entitled to commutation for quarters 
 during his trial and whUe awaiting orders after 
 the trial. The mere fact that an officer is under 
 charges does not deprive him of his pay and 
 allowances. Such forfeiture can only be im- 
 posed by the sentence of a court-martial. It is 
 conceded that the officer was ordered before the 
 court-martial for trial; that his status was that 
 of an officer under suspension from duty dm'ing 
 the existence of such trial. He was under 
 charges during the pendency of his trial, and 
 the result of the trial alone could determine 
 his status as a volunteer Army officer. He 
 could not absent himself from the place of trial 
 without disobeying the orders of his superiors. 
 He was not absent from his post of duty with- 
 out leave. On the contrary, he was present at 
 the coin"t-martial in obedience to orders, await- 
 ing the result of the trial and such orders as 
 would necessaiily follow. Aside from this, it 
 has been held in a number of cases that the 
 mere fact that an officer or soldier is under 
 charges does not deprive him of his pay and 
 allowances, and that such forfeiture can only 
 be imposed by the sentence of a lawfiU court- 
 martial (citing Smith v. U. S., 2 Ct. Cls., 206; 
 Winters v. U. S., 3 Ct. Cls., 136; Collins v. U. S., 
 15 Ct. Cls., 22; Sullivan v. U. S., 32 Ct. Cls., 
 402; and Dodge v. U. S., 33 Ct. Cls., 35). In 
 Sullivan's case, supra, it was held that, "when 
 an officer is suspended and ordered in arrest, 
 it is as much his duty to obey as it is to perform 
 or execute any other order requiring affirmative 
 action. He ceases by order of his superior 
 officer to perform the active duties incident to 
 his office. He is not to do anything in the dis- 
 charge of his official obligations in the form of 
 military duty until relieved of the disability 
 incident to his arrest. He is 'waiting orders' 
 emphatically. The official duties pertaining 
 to his position have been transferred to some 
 other officer, and so far as the right to perform 
 the duties of his office goes, he is functus officio." 
 This case differs from that of Swaim v. United 
 States (165 U. S., 553), in which it was held 
 that when an Army officer was suspended from 
 rank by sentence of a court-martial he was not 
 entitled to emoluments or allowances; and 
 differs also from the case of Phisterer v. United 
 States (94 U. S., 219), in which it was held that 
 an Army officer ordered by proper authority 
 
 roo 
 
The Navy. 
 
 Pt.2. REVISED STATUTE^. 
 
 Sec. 1487. 
 
 from a military post where he was rendering 
 service to proceed to 'his home and await orders 
 was not entitled to commutation for quarters. 
 (Wales V. U. S., 43 Ct. Cls., 225, holding that 
 the court-martial in the case under considera- 
 tion was illegally constituted and its sentence 
 void.) 
 
 An officer of the Army for some months is 
 in the custody of the civil authorities in Manila 
 awaiting trial, on bail and not actually re- 
 strained of his liberty; subsequently he is 
 under military arrest and confined to the limits 
 of the city of Manila; during all this period he 
 is under orders assigning him to temporary 
 duty in Manila and resides in a private house, 
 not having been furnished with quarters. 
 Until his arrest he receives pay and commuta- 
 tion of quarters. He is tried and convicted in 
 the civil comts at Manila, but the judgment 
 is reversed by the Supreme Coini; of the United 
 States. He is subsequently tried, con\'icted, 
 and dismissed from the Army by a military 
 court-martial, and is thereafter reinstated anci 
 retired. Held, that it requires the decision 
 of a court-martial to deprive an Army officer 
 of his pay and emolmnents, and that where an 
 officer is awaiting trial before either a civil or 
 military triljunal, under waiting orders issued 
 by authority of the War Department, he is 
 entitled to the emolimients of his office, in- 
 cluding commutation for quarters. Further 
 held that although this officer was first tried by 
 a civil tribunal and afterward tried by a general 
 court-martial, he was under waiting orders 
 issued by authority of the War Department 
 which covered the time involved in both trials, 
 and is entitled to all the emoluments allowed 
 by the Army Regulations, which include com- 
 mutation for quarters. (Carrington v. U. S., 
 46 Ct. Cls., 279.) 
 
 Officer detailed as professor in a col- 
 lege. — WTiere an officer of the Army is detailed 
 by peremptorj^ order to act as professor in a 
 college he is entitled to be furnished fuel and 
 quarters by the Government or commutation 
 therefor. The order detailing him is one which 
 he is bound to obey, and his right to commuta- 
 tion can not be affected by the fact that his 
 detail was procured by the president of the 
 college with his cooperation. In such a case, 
 if there be no quarters at the place it will be a 
 station without troops within the meaning of 
 Army Regulations, and he need not make 
 requisition for quarters. (Long v. U. S., 8 Ct. 
 Cls., 398; see also note to sec. 1225, R. S.) 
 
 Civilian professors at Naval Academy. — 
 'The act of August 29, 1916 (39 Stat., 607), pro- 
 \ddes " that the Secretary' of the Navy is author- 
 ized to employ at the Naval Academy such 
 number of professors and instructors, including 
 one professor as librarian, as, in his opinion, 
 may be necessary for the proper instruction of 
 the midshipmen; and that professors and in- 
 structors so employed shall receive such com- 
 pensation for their services as may be pre- 
 scribed by the Secretary of the Navy." This 
 law clearly leaves it entirely to the discretion 
 of the Secretary of the Na\y to prescribe the 
 "compensation" of civilian professors and in- 
 structors, and the Secretary, in exercising such 
 discretion, may, in accordance with the author- 
 ities, prescribe that such civilians shall be 
 
 allowed public quarters, heat and light, or 
 commutation thereof. (File 11168-4, Feb. 1, 
 1917, citing cases. See below, under "Whether 
 commutation of quarters is salarj^, compensa- 
 tion, or pay proper.)" 
 
 Officer temporarily absent from sta- 
 tion. — An officer of the Navy on temporary 
 duty in the United States away from his station 
 lieyond seas, if entitled to commutation of 
 quarters at such station continued to be so 
 entitled during the period of his temporary 
 absence in the United States; he is not en- 
 titled, however, to commutation of heat and 
 light during such absence, unless his quarters 
 at his permanent station are occupied by his 
 family or persons dependent upon him for sup- 
 port. (Comp. Dec, Jan. 17, 1916, 179 S. and 
 A. Memo., 3870.) 
 
 An ofiicer of the Pay Corps in receipt of com- 
 mutation of quarters at his permanent station 
 at Washington, D. C, as general inspector of 
 the Pay Corps, may continue to receive such 
 commutation while temporarily absent under 
 orders requiring him to proceed to Yokohama, 
 Japan, and to vaiious other points outside the 
 continental limits of the United States, includ- 
 ing points Ijdng within the island possessions 
 of the United States, for the purpose of inspect- 
 ing the accounts of the pay officers stationed at 
 the points designated, including the accounts 
 of paymasters of vessels with which he might 
 fall in during his entire trip, and upon comple- 
 tion of said duty to return to his former station 
 by way of the Suez Canal. (Comp. Dec, 
 Sept. 26, 1901, to Paymaster Livingston Hunt; 
 compare 21 Comp. Dec, 604.) 
 
 The Na\T Regulations, 1913 (art. R-4511 
 (5)), provide that "the quarters to which an 
 officer is entitled when on duty may be con- 
 tinued in kind, at his proper station, during 
 the period for which the law permits him to be 
 absent without reduction of pay and allow- 
 ances." This regulation is based upon the 
 act of February 27, 1893 (27 Stat., 480), which 
 provides "that hereafter officers temporarily 
 absent on duty in the field shall not lose their 
 right to quarters or commutation thereof at 
 their permanent stations while so temporarily 
 absent." In the Comptroller's decision of 
 August 3, 1907 (see 125 S. and A. Memo., 1850), 
 it was held that "this statute authorizes the 
 payment of commutation of quarters to naval 
 officers, who are entitled to that allowance 
 during the time they are temporarily absent on 
 duty from their permanent stations, provided 
 they were receiving such commutation at the 
 permanent stations, or, if they were occupying 
 public quarters, it gives them the right to retain 
 their quarters during such absence." In the 
 Comptroller's decision of July 26, 1911 (125 S. 
 and A. Memo., 1854), it was said: "The act of 
 February 27, 1893, supra, contemplates the 
 temporary absence of an officer from his per- 
 manent station, and a temporaiy absence pre- 
 supposes the intention to return to the perma- 
 nent station and resume his duties there. If 
 the absence of Lieut. Commander Trench from 
 the academy was only temporary, under the 
 act of February 27, 1893, he did" not lose his 
 right to retain' his quarters there during such 
 absence." (File 26254-2134, Dec. 19, 1916; 
 see also file 26254-2120:1, Nov. 15, 1916.) 
 
 701 
 
Sec. 1488. 
 
 Pt.2. RE VISED STAT UTES. 
 
 The Navy. 
 
 Agreement of oflficers for exchange of 
 quarters a"nd commutation. — An agreement 
 whereby an ollicer who has been regularly 
 assigned to public quarters undertakes to 
 permit another oflieer to occupy such quarters 
 and to exchange his right thereto for the other 
 officer's right to commutation of quarters, is not 
 authorized and in ?uch case the officer who was 
 assigned to public quarters but did not occupy 
 thorn is not entitled to any commutation 
 whatever in lieu thereof. (22 Oomp. Dec, 707; 
 see also file 2(J254-2052, July 7 and Aug. 7, J 916.) 
 
 Services of laborer in caring for quax- 
 ters.^Service performed by a laborer at a 
 navy yard, under the direction of the general 
 storekeeper, in and about the fiuarters of that 
 officer is not authorized by law, and the general 
 storekeeper is liable to the United States for 
 the value of services thus unlawfully converted 
 to his personal use. (12 Comp. Dec, 697.) 
 
 "Duty without troops" defined. — The 
 Army regulation concerning commutation of 
 quarters for officers "on duty wathout troops," 
 extends to officers on detached service, such as 
 recruiting ser\ace, although there may be 
 enlisted men on duty, such as guards, orderlies, 
 clerks, and messengers. Such cases are dis- 
 tinguishable from those of officers of the line 
 serving in the field or with their commands at 
 a fort or in barracks. (Anderson v. U. S., 39 
 Ct. Cls., 316.) 
 
 Prior to the act of March 4, 1915, commuta- 
 tion of quarters was only allowable where an 
 officer was detailed for duty without troops. 
 (Moses V. U. S., 41 Ct. Cls. 27, citing Himt v. 
 U. S., 38 Ct. Cls.', 704, and Anderson v. U. S., 
 39 Ct. Cls., 316.) Under the act of March 4, 
 1915, commissioned officers of the Navy are 
 now entitled to commutation of quarters "at 
 places where there are no public quarters 
 available." (File 28479-141, Nov. 15, 1915.) 
 
 The annual naval appropriation acts make 
 provision for "hire of quarters for officers serving 
 with troops where there are no public quarters 
 belonging to the Government, and where there 
 are not sufficient quarters possessed by the 
 United States to accommodate them or commu- 
 tation of quarters not to exceed the amount 
 which an officer would receive were he not 
 
 servang with troops." (See act June 4, 1920, 
 41 Stat., 824.) 
 
 Application for quarters not necessary 
 to allowance of commutation. — Commuta- 
 tion can be allowed an officer Avithout previous 
 demand by him for fuel and quartere and reply 
 that they can not be furnished. (Whittlesey v. 
 U. S., 5 Ct. Cls., 99.) 
 
 Where the headquarters of a military depart- 
 ment are in a large city in which there are no 
 quarters assignable to officers on duty, it is not 
 necessary for an officer ordered there to make a 
 demand that quarters be assigned to him. lie 
 will be entitled to recover commutation if it 
 appear that there were no quarters which might 
 have been assigned. (Lippitt v. U. S., 14 Ct. 
 Cls., 148. See also Crosby v. U. S., 13 Ct. Cls., 
 110; Long v. U. S., 8 Ct. Cls., 398.) 
 
 Whether commutation of quarters is 
 salary, compensation, or pay proper. — 
 Commutation of quarters is part of the "'official 
 salary" of an Army officer within the meaning 
 of those words as used in the act of June 28, 
 1902 (32 Stat., 483), relating to employment of 
 Army officers under the Isthmian Canal Com- 
 mission. (12 Comp. Dec, 343.) 
 
 Under the law providing that the Secretary 
 of the Navy may prescribe the ' ' compensation ' ' 
 of civilian professors and instructors at the 
 Naval Academy, he may prescribe that such 
 civilians shall be allowed public quarters, heat 
 and light, or commutation thereof. (File 
 11168-4, Feb. 1, 1917, citing cases.) 
 
 Commutation is a form of reimbursement and 
 is not part of the compensation of an officer. 
 (Odell V. U. S., 38 Ct. Cl&,,_194_.) 
 
 The theory of commutation is compensation 
 or reimbursement for something paid out. 
 (In^dn V. U. S., 38 Ct. Cls., 87, 103.) 
 
 The allowances pro^dded for in General Order 
 No. 75, Navy Department, May 23, 1866, 
 namely, a sum to be paid officers not provided 
 with quarters on shore stations, equal to one- 
 third of their pay, in lieu of all allowances 
 except for mileage or traveling expenses, 
 constitute no part of the pay proper of officers 
 and were designed to meet certain expenses 
 they would necessarily incur in the discharge 
 of their duties. (U. S. v. Allen, 123 U. S., 345.) 
 
 Sec. 1488. [Military command.] The relative rank given by the provisions 
 of this chapter to officers of the Medical, Pay, and Engineer Coqjs shall confer 
 no authority to exercise military command. — (General Orders 31 Aug., 1846, 
 and 27 May, 1847. 5 Aug., 1854, c. 268, s. 4, v. 10, p. 587. 3 Mar., 1859, c. 
 76, s. 2, V. 11, p. 407.) 
 
 By act of June 24, 1910 (36 Stat., 614), it was 
 provided that "line officers may be de- 
 tailed for duty under staff officers in the 
 manufacturing and repair departments of 
 the navy yards and naval stations, and all 
 laws or parts of laws in conflict herewith 
 are hereby repealed. " 
 
 By act of March 3, 1915 (38 Stat., 930), it was 
 provided that "hereafter officers who now 
 perform engineering duty on shore 
 only and officers of the Construction Corps 
 shall be eligible for any shore duty com- 
 patible with their rank and grade to which 
 the Secretary of the Navy may assign 
 them." (See note to sec. 1404, R. S.) A 
 
 Amendment to this section was made by act of 
 March 3, 1899, section 7 (30 Stat., 1006), 
 which abolished "relative" rank and su1)- 
 stituted actual rank therefor, with the pro- 
 viso that "officers whose rank is so defined 
 shall not be entitled, in virtue of their 
 rank to command in the line or in other 
 staff corps." The same act, section 1 (30 
 Stat., 1004), transferred the Engineer 
 Corps to the line of the Navy, and thereby 
 abolished the Engineer Corps (see note to 
 sec 1390, R. S.). 
 
 By act of July 11, 1919 (41 Stat., 147), it was 
 provided that "hereafter the Pay Corps 
 shall be called the Supply Corps." 
 
 702 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1488. 
 
 similar provision was contained in the act 
 of June 30, 1914 (38 Stat., 394). 
 Command of vessels. See note to section 1529. 
 Revised Statutes. 
 Command of hospital ships by medical 
 oflacers.— The words "military command" in 
 section 1488 have been supplanted by the later 
 act of March 3, 1899 ( quoted above), which pro- 
 vides that staff officers shall not "command m 
 the line or in other staff corps." The command 
 of a hospital ship by a medical officer is not a 
 ••command in the line or in other staff corps;" 
 it is a command in the medical officer's own 
 staff corps, and in their own staff corps medical 
 officers have always had a command. ('27 Op. 
 Atty. Gen., 571. Note.— In practice officers 
 of the Supply Corps of the Navy were later 
 detailed on hospital ships under the command 
 of medical officers; see for example Navy 
 Register of January 1, 1917, page 298; when 
 the Attorney General's opinion cited was 
 rendered, officers of the line or other staff 
 corps were not, under the regulations then 
 existing, to be assigned to duty on hospital 
 ships commanded by medical officers.) 
 
 Prior to March 3, 1901, assignments to com- 
 mand of naval vessels were governed by section 
 1535, Revised Statutes, and regulations made 
 in accordance therewith. The position of 
 staff officers during the same period ^vith regard 
 to military command was restricted by the acts 
 of August 5, 1854 (10 Stat., 587), and March 3, 
 1859 (11 Stat., 407), now section 1488, Revised 
 Statutes. The act of March 3, 1899 (30 Stat., 
 1006), amending the words "the relative rank 
 of" in the Revised Statutes to read •'the rank 
 of," provided that "officers whose rank is so 
 defined shall not be entitled, in virtue of their 
 rank to command in the line or in other staff 
 corps." By act of March 3, 1901 (31 Stat., 
 1133), Congress declared ''that the President 
 of the United States be, and he is hereby, 
 authorized to estalilish, and from time to time 
 to modify, as the needs of the service may re- 
 quire, a classification of vessels of the Navy, and 
 to formulate appropriate rules governing assigii- 
 ments to command of vessels and squadrons." 
 This act is plainly intended to amend the 
 previous statutes on the subject and is designed 
 to allow the President to reclassify the vessels 
 of the Navy that had theretofore been fixed by 
 section 1529, Re\ised Statutes; and to authorize 
 him to assign the command of vessels, omitting 
 all restrictions. He is by this act given the 
 full power contemplated in that proxision of 
 the Constitution which makes him commander 
 in chief of the Ai^my and Navy. The act of 
 March 3, 1901, is a complete substitute for prior 
 laws or customs. The language of that act is 
 clear and unambiguous, and was enacted with 
 a full knowledge of the conditions brought about 
 by prior laws and of the necessity of a new and 
 elastic system by which the President could 
 from time to time make such regulationsas the 
 necessities of the changing conditions in the 
 ser^'ice should require. (27 Op. Atty. Gen., 
 571.) 
 
 A joint board of Army and Navy medical 
 officers convened by the President, under 
 orders of January 11, 19n(), recommended the 
 construction of hospital ships for both the Army 
 
 and the Navy, the personnel of which should 
 consist of one medical officer in command of the 
 ship, four medical officers to attend the patients, 
 and a number of enlisted men of the Hospital 
 Corps, it being "recommended that the crews 
 of hospital ships be composed entirely of civil- 
 ians." This recommendation was approved 
 by the Secretary of War and by the Surgeon 
 General of the Navy, and disapproved in toto 
 by the Chief of the Bureau of Na\agation. in 
 part for the reason that "it would be impracti- 
 cable, dangerous, and inimical to the service, 
 and contrary to laws, regulations, and customs 
 of long standing." to have medical officers in 
 command of such ships. The Surgeon General 
 of the Navy again approved the recommenda- 
 tion of the board on September 24, 1906, stating 
 tliat— ' • The bureau concurs in the recommenda- 
 tion of the joint board that a medical officer 
 should be placed in command of a hospital 
 ship, but does not contemplate nor consider it 
 advisable that such command should give him 
 control of her navigation * * *. The med- 
 ical officer in command is to receive all orders 
 from the commander in chief or from the depart- 
 ment and to transmit them to the captain of the 
 ship. His command should be absolute, the 
 captain of the sliip taking his directions from the 
 senior medical officer. The captain should not 
 be a naval officer, but should belong to the 
 merchant marine, and should have entire con- 
 trol of the navigation of the ship and of the 
 ci-v-ilian c'rew and regulate discipline and mat- 
 ters pertaining to them. The discipline of the 
 medical branch should be in the hands of the 
 medical officer in command * * *." The 
 Bureau of Navigation on September 27, 1906, 
 declined to add anything to its previous state- 
 ment on the subject. Thereupon the Secretary 
 of the Navy on December 12, 1906, made the 
 following order: "* * * Second. The depart- 
 ment holds that such a ship, when in commis- 
 sion, should be treated as a floating hospital, 
 and as such placed under the command of a 
 medical officer, her navigation being controlled 
 by a competent sailing master. In war time, 
 the entire crew should be, so far as possible, 
 specially enlisted from civilians, as men of the 
 Hospital Corps, and for such time only as their 
 services vnll probably be needed. In time of 
 peace, the crew, except such as are engaged in 
 hospital duties, could be organized substan- 
 tially as is that of a naval auxiliary, but subject 
 to the pro\dsion above set forth as to the com- 
 mand." The President on January 4, 1908, 
 approved the Secretary's decision of December 
 12, 1906, and orders issued thereunder, and 
 ordered as to the future: "The hospital ships of 
 the Navy will hereafter, unless otherwise di- 
 rected by Congress, be placed under the control 
 and command of medical officers of the Navy, 
 their navigation being exclusively controlled 
 by a competent sailing master ha\ing the com- 
 plete responsibility for everything connected 
 vnth the na\'igation of the ship * * *• 
 Naval regulations were made, issued, and 
 approved by the President, and published for 
 the government of the Naw- as follows (art. 37, 
 par. 2, Navy Regs., 1909): "A hospital ship may 
 be commanded %y a naval medical officer not 
 below the grade of surgeon." The law pro- 
 vides that such regulations, when so approved. 
 
 703 
 
Sec. 1491. 
 
 Pi. 2. REVISED STATUTES. 
 
 The Navy. 
 
 shall be the regulations of the Navy (sec. 1547, 
 11, S.), and they shall haNe the force of law 
 when not inconsistent therewith (21 Op. Atty. 
 Gen., 40; (Initiot v. U. S., 4 How., 80). Held, 
 that the orders i)ro.ceding this retrulation and the 
 regulation itself were issued and adopted in 
 accordance with law, and under this authority 
 the Secretary of the Navy may now assign a 
 medical ofiicer. not below the grade of surgeon, 
 
 to the command of a naval hospital sliip. (27 
 Op. Atty. Gen., 571.) 
 
 Construction officer can not be assigned 
 to purely military duties. — See note to 
 section 1404, Revised Statutes. 
 
 For other cases, as to command on shore 
 by engineer officers and construction officers, 
 see notes to sections 1390 and 1404, Revised 
 Statutes. 
 
 Sec. 1489. [Processions, boards, &c.] In processions on shore, or courts- 
 martial, summary courts, courts of inquiry, boards of survey, and all other 
 boards, line and staff officers shall take precedence according to rank. — (3 Mar., 
 
 1871, c. 117, s. 12, V. 16, p. 537.) 
 
 See notes to sections 1467, 1485, and 1486, 
 Revised Statutes. 
 
 The precedence of line officers, active or 
 retired, ser\dng as members of courts-martial, 
 is determined, first, by their rank, and, second, 
 by their respective dates of commission, except 
 in cases where they have gained or lost num- 
 bers, in which event thev gain or lose seniority 
 accordingly. (File 28025-495:1, May 2, 1917.) 
 
 Precedence of line and stafif officers on 
 courts-martial. — Prior to the act of August 29, 
 1916, noted under section 1485, Revised Stat- 
 utes, it was decided that a rear admiral of the 
 line of the Navy, serving as member of a general 
 court-martial, preceded a rear admiral of the 
 Pay Corps (now Supply Corps) of the Navy, 
 
 Sec. 1490. [Ensigns as steerage officers.] Ensigns shall be steerage officers, 
 unless assigned to duty as watch and division officers. — (15 July, 1870, c. 295, 
 s. 10, V. 16, p. 334.) 
 
 serving on the same court-martial, notmth- 
 standing that the latter' s date of commission 
 was earlier than that of the line rear admiral, be- 
 cause of the fact that the rear admiral of the line 
 had greater length of service than the rear 
 admiral of the staff, even crediting the latter 
 with the constructive service of six years pro- 
 vided for by section 1486, Revised Statutes, and 
 that length of service governs, and not date of 
 commission, in fixing the precedence of these 
 officers. (File 28025-385:5, Oct. 30, 1915, re 
 precedence of Rear Admiral Bradley A. Fiske 
 and Pay Director T. J. Cowie. See notes to 
 sections 1485 and 1486, Revised Statutes, for 
 later cases.) 
 
 See note to section 1435, Revised Statutes. 
 
 "Steerage officer. — An officer living or 
 messing in the steerage. Steerage officers in 
 the U. S. Navy are clerks, midshipmen, cadet- 
 midshipmen, mates, cadet-engineers, ensigns 
 when not in charge of a watch and division, 
 and all officers ranking with ensign." (Ham- 
 ersly ' s Naval Ency . , 1 884 . Note . — The grades 
 of midshipmen and cadet-engineers have been 
 abolished, and the title of " cadet- midship- 
 men" has been changed to "midshipmen.") 
 
 "Junior officers of the line are those below 
 the rank of lieutenant, junior grade, not as- 
 signed permanently to duty as watch and 
 division officers." (Navy Regs., 1913, Art. 
 R 2701(1)). 
 
 Wardroom officers. — "All commissioned 
 officers not in command, above the rank of 
 ensign, shall be wardroom officers. Ensigns 
 assigned to duty as watch and division officers, 
 either on deck or in the engineer department, 
 shall also be wardroom officers." (Art. I 803, 
 Naval Instructions, 1913.) 
 
 Sec. 1491. [Warrant officers.] The President may, if he shall deem it con- 
 ducive to the interests of the service, give assimilated rank to boatswains, 
 gunners, carpenters, and sailmakers, as follows: After five years' service, to 
 rank with ensigns, and after ten years' service to rank with masters, — (2 July, 
 1864, c. 219, s. 1, V. 13, p. 373.) 
 
 By ac-t of March 3, 1899, section 12 (30 Stat., 
 1007), boatswains, gunners, carpenters, and 
 sailmakers were, after 10 years from date 
 of warrant, to be commissioned as chief 
 boatswains, chief gunners, chief carpen- 
 ters, and chief sailmakers, to rank with 
 but after ensign. This provision was 
 amended by act of April 27, 1904 (33 Stat., 
 346), providing for the promotion of the 
 officers mentioned after 6 years from date 
 of warrant, instead of 10 vears, as thereto- 
 fore. By act of August 29, 1916 (39 Stat., 
 578), it was provided that commissioned 
 
 warrant officers on the active list, with 
 creditable records, shall, after 6 years 
 from date of commission, receive the pay 
 and allowances of a lieutenant (junior 
 grade), and after 12 years from date of com- 
 mission, the pay and allowances of a lieu- 
 tenant. Similar provision for pay of re- 
 tired warrant officers and chief warrant 
 officers while employed on active dutv was 
 made by act of April 10, 1918 (40 Stat., 
 516). 
 Officers holding permanent warrant or perma- 
 nent commissioned warrant ranks on June 4, 
 
 704 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1492 
 
 1920, and who are transferred to permanent 
 higher ranka in accordance vrith the act of 
 that date shall, if they thereafter fail pro- 
 fessionally on examination for promotion, 
 revert to their permanent warrant or perma- 
 nent commissioned warrant status. (Act 
 June 4, 1920, sec. 4, 41 Stat., 835.) 
 See note to section 1405, Revised Statutes, for 
 laws relating to appointment of warrant 
 officers and commissioned waiTant officers 
 to the grade of ensign, and for laws creating 
 additional grades of warrant officers, etc. 
 The President never exercised the dis- 
 cretion placed in him by the act of July 2, 1864, 
 
 and section 1491, Re\ised Statutes, in which 
 that law is now embodied. (File 17789-21, 
 Jan. 30, 1914.) 
 
 Section 1491 has been regarded by the Xavy 
 Department as having been repealed by the 
 act of IMarch 3, 1899 (above quoted), providing 
 for the commissioning of warrant officers to 
 rank with but after ensign, section 26 of that 
 act ha\-ing pro\'ided "that all acts and parts of 
 acts, so far as they conflict mth the pro\ision3 
 of this act, are hereby repealed." (File 
 17789-21, Jan. 30, 1914.) 
 
 Masters. — Now lieutenants (junior grade). 
 See note to sec. 1362, R. S. 
 
 Sec. 1492. [Coast Guard officers serving as part of the Navy. Superseded.] 
 
 This section provided as follows: 
 
 "Sec. 1492. The officers of the revenue-cutter 
 serAice when serving, in accordance with law, 
 as a part of the Navy, shall be entitled to rela- 
 tive rank, as follows: Captains, with and next 
 after lieutenants commanding in the Navy; 
 first lieutenants, with and next after lieutenants 
 in the Navy; second lieutenants, with and next 
 after masters in Line in the Navy; third lieu- 
 tenants, with and next after ensigns in the 
 Navv."— (2 Mar., 1799, c. 22, s. 98, v. 1, pp. 
 699, '700. 16 July, 1862, c. 183, ss. 1, 11, v. 12, 
 pp. 583, 585. 4 Feb., 1863, c. 20, s. 4, v. 12, p. 
 640.) 
 
 It was superseded by act of April 12, 1902, 
 section 2 (32 Stat., 100), which provided that 
 the commissioned officers of the Revenue- 
 Cutter Service .shall rank as follows: ''Cap- 
 tains with majors in the Army and lieutenant 
 commanders in the Na\^^; first lieutenants 
 with captains in the Army and lieutenants in 
 the Navy; second lieutenants with first lieu- 
 tenants in the Army and lieutenants (junior 
 grade) in the Na\'3'; tliird lieutenants with 
 second lieutenants in the Army and ensigns 
 in the Na\y: Provided, That whenever forces 
 of the Na\y and Revenue-Cutter Service shall 
 be serx-ing in cooperation pursuant to law 
 (section twenty-seven hundred and fifty-seven, 
 Re\dsed Statutes), the officers of the Revenue- 
 Cutter Service shall rank as follows: Captains 
 with and next after lieutenant commanders in 
 the Na%y; first lieutenants with and next after 
 lieutenants in the Na\'y; second lieutenants 
 with and next after lieutenants (junior grade) 
 in the Na^y; third lieutenants with and next 
 after ensigns in the Navy." 
 
 Other changes were made by act of 
 April 16, 1908 (35 Stat., 61), wMch authorized 
 in the Revenue-Cutter Ser\dce one captain 
 commandant "with the rank of a colonel in 
 the Army and a captain in the Na\'y", six 
 senior captains, "each with the rank of lieu- 
 tenant colonel in the Army and a commander 
 in the Na\y", one engineer in chief "with 
 the rank of a lieutenant colonel in the Army 
 and a commander in the Na\'y", and six 
 senior engineers "each with the rank of a 
 major in the Army and a lieutenant commander 
 in the Xa^-^•.'' 
 
 Coast Guard created. — By act of January 
 28, 1915 (38 Stat., 800), the Revenue-Cutter 
 Service and the Life-Sa\dng Service were con- 
 solidated and established as the Coast Guard, 
 "which shall constitute a part of the militaiy 
 
 forces of the United States and which shall 
 operate under the Treasury Department in 
 time of peace and operate as a part of the Na\'y, 
 subject to the orders of the Secretary of the 
 Na\y, in time of war or when the President 
 shall so direct * * * : Provided, That no 
 provision of this act shall be construed as 
 giving any officer of either the Coast Guard or 
 the Navy, military or other control at any time 
 over any vessel, officer, or man of the other 
 service except by direction of the President." 
 The same act, section 3, pro\'ided that all 
 existing laws affecting rank in the Revenue- 
 Cutter Service shall apply to the correspond- 
 ing positions in the Coast Guard. 
 
 Precedence by date of commission. — By 
 act of Augu-st 29, 1916 (.39 Stat., 600), it was 
 pro\"ided that, "whenever the personnel of 
 the Coast Guard, or any part thereof, is oper- 
 ating with the personnel of the Navy in ac- 
 cordance with law, precedence between com- 
 missioned officers of corresponding grades in 
 the two services shall be determined by the 
 date of commissions in those grades"; and 
 that "whenever, in time of war, the Coast 
 Guard operates as a part of the Na\y in accord- 
 ance with law, the personnel of that service 
 shall be subject to the laws prescribed for the 
 government of the Na\y." 
 
 Temporary ranks established. — Bv act 
 of July 1, 1918 (40 Stat., 732), the temporary 
 promotion was authorized of the captain com- 
 mandant "to the rank of commodore in the 
 Navy and brigadier general in the Army, "• 
 and the engineer in claief of the Coast Guard 
 "to the rank of captain in the Na\y and colonel 
 in the Army. " The same act also authoi'ized 
 temporarj^ promotion of other officers in the 
 Coast Guard. 
 
 Titles of officers.— An act of June 5, 1920 
 (41 Stat., 879), pro^^-ded that "titles of com- 
 missioned officers of the Coast Guard are hereby 
 changed as follows: Senior captain to com- 
 mander, captain to lieutenant commander, first 
 lieutenant to lieutenant, second lieutenant to 
 lieutenant junior grade, third lieutenant to 
 ensign, captain of engineers to lieutenant com- 
 mander (engineering), first lieutenant of en- 
 gineers to lieutenant (engineering), second lieu- 
 tenant of engineers to lieutenant junior grade 
 (engineering), and third lieutenant of engineers 
 to ensign (engineering): Provided, That all laws 
 applicable to the titles hereby abolished in the 
 Coast Guard shall apply to the titles hereby 
 established." 
 
 705 
 
Sec. 1492. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 Coast Guard a part of the Navy when so 
 serving. — Revenue cutters are placed under 
 the direction of the Secretary of tlic Navy and 
 for all practical purposes are, during the time 
 they cooperate with the Navy, a part of the 
 Na\y. Tliis seems entirely clear from the 
 provisions of section 1492, Revised Statutes, 
 which designates tlie relative rank of officers 
 of the Revenue-Cutter Service when serving 
 in accordance with law "as apart of the Navy. " 
 (3 0omp. Dec.,543.) 
 
 It is a matter of history that during the war 
 with Spain vessels of the Revenue-Cutter 
 Service fought side by side with vessels of 
 the Na\7' proper. If men were appointed 
 to office or enlisted in the Revenue-Cutter 
 Ser^dce for the war only, and under the pro- 
 ^dsions of section 2757, Revised Statutes, the 
 President directed them to cooperate with the 
 Na\y, and they were placed under the 
 direction of the.«Secretary of the NaN-y and the 
 expenses thereof were defrayed by the Navy 
 Department, and they sei*ved creditably in 
 cooperation with the Navy during the war 
 with Spain, and were honorably discharged at 
 the close of the war. Held, that such officers 
 and enUsted men so serWng, so paid, so directed, 
 and so governed, constituted a part of the 
 temporary force of the Navy during the war 
 with Spain within the meaning of the act of 
 March 3, 1899, granting extra pay to "the 
 officers and enlisted men comprising the 
 temporary force of the Na\'y during the war 
 with Spain. " Held, further, that this deci- 
 sion is not applicable to officers and enlisted 
 men who may have been appointed to office or 
 enlisted in the Revenue-Cutter Service for 
 the w^ar only, who did not serve by order of 
 the President under the direction of the Secre- 
 tary of the Naiy in cooperation with the Navy 
 during the war. (5 Comp. Dec, 671.) 
 
 It is clear that the Revenue-Cutter Service, 
 neither in its inception nor in its more recent 
 development, is to l)e regarded as a part of the 
 Navy, to which it would niiturally be assigned, 
 unless it is cooperating therewith in accordance 
 with the express provision of law on the subject 
 (28 Op. Atty. Gen. ,543). 
 
 Despite the military character given the 
 Revenue-Cutter Service by existing legislation, 
 it is still an organization separate and distinct 
 from the Na\y, under the control of the Secre- 
 tary of the Treasury, and assigned to duty in 
 connection with the collection of the customs 
 revenue. Now as formerly it can only be 
 regarded as part of the Navy when serxing 
 therewith in accordance with law (sees. 1492 
 and 2757, R. S.). (28 Op. Atty. Gen., 543.) 
 
 The word "Navy' ' as used in the act of Feb- 
 ruary 28, 1919, section 3 (40 Stat., 1203), 
 providing for the payment of mileage to men 
 honorably discharged from the Na\y since 
 November 11, 1918, is broad enough to include 
 men honorably discharged from the Coast 
 Guard at any time when the Coast Guard 
 operates, pursuant to law, as a part of the Navy. 
 (File 28762-329, Mar. 10, 1919, C. M. 0. 114- 
 1919, p. 16.) 
 
 A registrant under the selective draft law who 
 has serxed in the Coast Guard in time of war 
 shoiild 1)0 considered as having "serv^ed in the 
 Na\y of the United States' ' so as to bring him 
 within the purview of the act of August 31, 
 1918, section 3, providing " that men registered 
 under the provisions of this act who have 
 served in the Navy of the United States shall, 
 upon their own ap])lication. be permitted to 
 reenlist in the naval or marine service of the 
 United States with and by the approv^al of the 
 Secretary of the Navv.' ' (File 28798-773, Nov. 
 23, 1918, C. M. 0. 174-1918. pp. 21, 22; compare 
 C. M. O. 141-1918, pp. 27, 28, holding that en- 
 listed men of the Coast Guard while operating 
 as a part of the Navy are not eligil^le for ap- 
 pointment to the Naval Academy as midship- 
 men under the act of June 30, 1914, 38 Stat., 
 410, wliich authorized such appointments to 
 be made "from the enlisted men of the Navy.' ') 
 
 The Navy of the United States, in law and 
 in fact, embraces the Coast Guard in time of 
 war just as certainly as it does any other mili- 
 tary force operatnig under the orders of the 
 Secretary of the Navy. Accordingly the word 
 "Navy'' is broad enough to include the Coast 
 Guard in tinie of war, service in the Coast 
 Guard at such time is service in the Navy, and 
 enlisted men of the Coast Guard are enlisted 
 men of the Navy. Howev^er, it has repeatedly 
 been held that the meaning of the word ' ' Navy'" ' 
 may vary as iLsed in different statutes; thus it 
 may be used in a restricted sense as including 
 only what may he called the Navy proper and 
 excluding the Marine Corps, Coast Guard, and 
 other organizations wliich would be embraced 
 by the term "Navy' ' when given its extended 
 meaning. Where the language of the law, 
 its purpose and spirit, and the object wliich it 
 was intended to accomplish, indicate that it 
 was the intention of Congress to include the 
 Coast Guard as well as the Navy proper, the 
 word "Navy" will be construed accordingly 
 as embracing the Coast Guard. (File 28798- 
 773, Nov. 22, 1918.) 
 
 Miscellaneous. — WTierever the expenses of 
 the Coast Guard are paid by the Navy Depart- 
 ment, in accordance with law, any naval appro- 
 priations from which payments are so made 
 shall be reimbursed from available appropria- 
 tions for the Coast Guard. (Act Aug. 29, 1916, 
 39 Stat., 600; but see acts June 15, 1917, 40 
 Stat., 212, July 1, 1918, 40 Stat., 731, and Jidv 
 11, 1919, 41 Stat., 150.) 
 
 Purchase of naval supplies by Coast Guard 
 personnel. (See act Mar. 6, 1920, 41 Stat., 506.) 
 
 Pay and allowances of Coast Guard personnel 
 same as Navy. (See act Mav 18, 1920, sec. 8, 41 
 Stat., 603.) 
 
 Commissioned officers of Coast Guard em- 
 powered to serve on naval courts-martial in 
 time of war. (Act Oct. 6, 1917, 40 Stat., 393.) 
 
 Assignment to duty of Coast Guard personnel. 
 (See act Aug. 29, 1916, 39 Stat., 601.) 
 
 Enlisted personnel of Coast Guard not to be 
 detailed to the office of the Coast Guard. (Act 
 May 29, 1920, 41 Stat., 650.) 
 
 706 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 OF PROMOTION AND ADVANCEMENT. 
 
 Sec. 1493. 
 
 Sec. 1493. [Physical examination.] No officer shall be promoted to a 
 higher grade on the active list of the Navy, except in the case provided in the 
 next section, until he has been examined by a board of naval surgeons and 
 pronounced physically qualified to perform all his duties at sea. — (21 Apr., 
 1864, c. 63, s. 4, v. 13, p. 53. 28 July, 1866, c. 312, s. 1, v. 14, p. 344.) 
 
 Amendment to this section was made by act of 
 August 29, 1916 (39 Stat., 611), which pro- 
 vided that ' ' the provisions of sections f oiu"- 
 teen hundred and ninety-tliree and four- 
 teen hundred and ninety-four of the Re- 
 vised Statutes of the United States shall 
 applv to the Marine Coi^ps; " and by act of 
 May" 22, 1917, section 20 (40 Stat., 89), 
 wliich provided "tliat hereafter all laws 
 relating to the examination of officers of the 
 Navy for promotion shall be construed to 
 apply to the regular advancement of staff 
 officers to higher ranks on the active list the 
 same as though such advancements in rank 
 were promotions to higher grades: Pro- 
 vided, That examinations for such staff 
 officers shall not be required • except for 
 such regular advancements in rank." 
 Boards of medical examiners may be convened 
 by senior officer present or other command- 
 ing officer on a foreign station when so 
 authorized by the Secretary of the Navy. 
 (Act Mar. 4, 1917, 39 Stat., 1171.) 
 Retirement of officers for physical incapacity. 
 See sections 1448-1457, Re\'ised Statutes, 
 and notes thereto. 
 Retirement with higher rank of officers failing 
 in physical examination for promotion is 
 authorized by act of March 4, 1911 (36 Stat., 
 1267); but this does not apply to officers of 
 the rank of lieutenant commander and 
 above (act Aug. 29, 1916, 39 Stat., 579, as 
 amended by act July 1, 1918, 40 Stat.. 118). 
 Selection of officers for promotion does not dis- 
 pense ■with examinations required for pro- 
 motion by seniority. (Act Aug. 29, 1916, 
 39 Stat., 579.) 
 Authority to convene boards of medical 
 examiners on foreign stations. — The words 
 "on a foreign station," as used in the act of 
 March 4, 1917 (aboA'e noted), are construed by 
 the Navy Department to mean ' 'outside of the 
 continental limits of the United States." Ac- 
 cordingly, the Secretary of the Navy may em- 
 power commanding officers of fleets to convene 
 boards of medical examiners, such authority to 
 become effective when their commands are out- 
 eide the continental limits of the United States, 
 and not merely when they are in waters, ports, 
 and stations in foreign countries. (File 26521- 
 186:30, Oct. 8, 1920.) 
 
 Examinations in the Marine Corns. — 
 Tlie act of July 28,_ 1892 (27 Stat., 321),' pro- 
 vided that "promotions to every grade of com- 
 missioned officers in the Marine Coi-ps below 
 the grade of Commandant shall be made in the 
 same manner and under the same conditions as 
 now are or may hereafter be prescribed, in pur- 
 suance of law, for commissioned officers of the 
 Army: Provided, That examining boards which 
 may be organized under the provisions of tliis 
 
 act to determine the fitness of officers of the 
 Marine Corps for promotion shall in all cases 
 consist of not less than five officers, three of 
 whom shall, if practicable, be officers of the 
 Marine Coips, senior to the officer to be exam- 
 ined, and two of whom shall be medical officers 
 of the Navy: Provided further, That when not 
 practicable to detail officers of the Marine Corps 
 as members of such examining boards, officers 
 of the line in the NaAy shall be so detailed." 
 Under this law the medical officers examined 
 the candidate as to his physical and mental fit- 
 ness for promotion and made a written report 
 thereof to the examining board. The mental 
 and physical fitness of the candidate, and all 
 questions which arose in connection therewith, 
 were then voted upon by each member of the 
 entire board. This part of the examination 
 preceded the moral and professional examina- 
 tion. \\lien the candidate was found mentally 
 and physically qualified for promotion, the 
 medical officers were excused from further at- 
 tendance with the board. Thus the board 
 wliich passed upon the mental and physical 
 fitness of an officer of the Marine Corps for pro- 
 motion was not "a board of naval surgeons," 
 but a board consisting partly of officers of the 
 Marine Corps or nonmedical officers of the Navy 
 and partly of medical officers of the Navy. 
 (File 28687-14, Dec. 14, 1916.) 
 
 To comply with the provision in the act of 
 August 29, 1916 (39 Stat., 611), extending sec- 
 tion 1493, Revised Statutes, to the Marine 
 Corps, the physical examination of an officer of 
 the Marine Corps preliminary to promotion 
 must be conducted by a "board of naval sur- 
 geons," and this board must consist of more 
 than one medical officer. The board should 
 convene separately from the board for the moral 
 and professional examination. It may consist 
 of the same two medical officers who are also on 
 the examining board as required by the act of 
 July 28, 1892. (File 28687-14, Dec. 14, 1916.) 
 
 There is no doubt that the act of August 29, 
 1916, has the effect of adding the words "or 
 Marine Corps" after the word "Nayj''," in sec- 
 tion 1493. Tliis section provides that the can- 
 didate, before promotion and except as pro- 
 vided in the next section, must be examined 
 by a board of naval surgeons and pronounced 
 physically qualified to perform all his "duties 
 at sea." The quoted words were not repealed 
 by the act of August 29, 1916. While the para- 
 mount duties of a Marine officer are "field 
 duties" and not "sea duties," yet Marine offi- 
 cers perform sea duty. Such duties being the 
 minor part of a Marine officer's duties, and the 
 "board of naval surgeons" being empowered to 
 examine the candidate only as to his phj^sical 
 qualifications to perfonn "his duties at sea," 
 the mental and physical examination required 
 
 707 
 
Sec. 1493. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 l)y (lie act of Julv 28, 1892, is still necessary to 
 determine the officer's fitness to perform all the 
 other duties of tlie grade to which he is to be 
 promoted. Hnle 2S(i87-14. Dec. 14, 1916.) 
 
 The act of July 28, 1892, is not expressly or 
 impliedly repealed In' the act of August 29, 
 1910, but is still in force. Suggested that sec- 
 tions 1493 and 1494, Revised Statutes, be 
 amended so as to avoid the complications re- 
 sulting from the application of those sections 
 as they now exist to the Marine Corps. (File 
 28G87-14, Dec. 14, 191G.) 
 
 Prior to the act of August 29, 1916, it was held 
 that the cases which a board of naval surgeons 
 constituted under section 1493 was authorized 
 to examine and pronounce upon were cases of 
 officers in the line of promotion on the active 
 list of the Navy, exclusively, and that such 
 board was not invested by law with authority 
 to examine and pronounce upon the physical 
 qualifications of a Maiine officer for duty at sea; 
 that section 1621, Revised Statutes, which 
 declares that the Marine Corps shall at all times 
 be subject to the laws and regulations estab- 
 lished for the government of the Navy, except 
 when detached for service with the Army by 
 order of the President, does not warrant the 
 inference that it was intended to subject that 
 corps to any other laws and regulations of the 
 Navj' than such as relate to discipline and 
 maintenance, within which category section 
 1493 did not fall. (17 Op. Atty. Gen., 117.) 
 
 The Secretary of the Na\y is of the opinion 
 that the laws regulating promotions in _ the 
 Navy and Marine Corps should be identical; 
 that is, that promotions in the Navy and Marine 
 Corps should be regulated by one law and the 
 proHsions therefor should be identical. At 
 present there are numerous differences in the 
 methods and conditions of promotion between 
 the Navy and Marine Corps, and between 
 different branches of the Na\^ proper, itself. 
 (File 28687-14. Feb. 5, 1917.) 
 
 Physical examinations prior to promotion to 
 all grades in the Marine Corps without excep- 
 tion are required by the Navy law contained 
 in section 1493 of the Revised Statutes as ex- 
 tended and applied to the Marine Corps by the 
 act of August 29, 1916. This requirement is 
 not repealed by anything contained in the act 
 of June 4, 1920 (41 Stat., 774). relating to pro- 
 motions in the Army. (File 26521-405:1, 
 Sept. 15, 1920.) 
 
 "Board of naval surgeons." — In inter- 
 preting section 1493, Revised Statutes, it is 
 held that the wording, "a board of naval 
 surgeons," means that a board of two medical 
 officers, or more, of the Navy is empowered to 
 act in the case of examination of officers for 
 promotion. (Naval Courts and Boards, sec. 
 665, citing file 26521-30; see also file 28687-10, 
 Oct. 31, 1916.) 
 
 Other than the section itself, there is no 
 pro\Tsion of law as to the number of officers 
 which shall constitute the "board of naval 
 surgeons" required by section 1493, Revised 
 Statutes. It was the opinion of the Judge 
 Advocate General of the Na^'^^, under date of 
 January 25, 1912 (file 26521-30), that the board 
 of naval surgeons prescribed by section 1493 
 "should consist of more than one medical 
 officer." Medical boards for the physical 
 
 examination of officers in the Navy for promo- 
 tion, convened pursuant to this section of the 
 Re\ised Statutes, in general consist of three 
 medical officers. (File 28687-14, Dec. 14, 
 1916.) 
 
 Section 1493 applicable to staff offi- 
 cers.— Prior to the act of July 16, 1862 ( 12 Stat. , 
 583), there was no law which required officers 
 in any branch of the naval service, including 
 the ^^arine Corps, to pass a physical examina- 
 tion as a preliminary to promotion. The 
 fourth section of that act directed the Secretary 
 of the Navy to appoint an adAdsory board of 
 naval officers, whose duty was to carefully 
 scrutinize the active list of line officers in the 
 Navy, above and including the grade of master, 
 and report to the Secretary in writing those 
 found to be worthy of promotion. The board, 
 in recommending an officer for promotion, was 
 to certify that he ' ' has the moral , mental , physi- 
 cal, and professional qualifications to perform 
 efficiently all his duties, both at sea and on 
 shore, of the grade to which he is to be pro- 
 moted." By the sixth section of the same act 
 a similar ad^^sory board was to be appointed 
 at least once in every four years. These pro- 
 visions, which applied solely to line ofl^cers 
 of the Navj', were superseded by other pro- 
 visions on the same subject contained in the 
 act of April 21, 1864, chapter 63. The latter 
 provisions are embodied in section 1493 et seq. 
 of the Revised Statutes. They include both 
 line and staff officers, but in terms extend to 
 those only who are "on the active list of the 
 Na^ry." (17 Op. Atty. Gen., 117.) 
 
 Examinations were discontinued for promo- 
 tion of staff officers in grade by act of May 22, 
 1917, section 20 (40 Stat., 89), which act and 
 section also reenacted a pro\dsion in the act of 
 March 4, 1917 (39 Stat., 1182), requiring ex- 
 aminations of staff officers for advancement in 
 rank, "the same as though such advancement 
 in rank were promotions to higher grades." 
 Prior to the act last cited it had been held that 
 sections 1493 and 1496 which proAade that no 
 officer shall be promoted to a higher "grade" 
 on the active list until his physical, mental, 
 moral, and professional fitness therefor has been 
 established to the satisfaction of the board of 
 examining officers appointed by the President, 
 does not require that a staff officer be subjected 
 to examination prior to advancement to a 
 higher relative rank in the same grade, where 
 more than one rank is attached to said grade; 
 the office remains the same, and the change in 
 relative rank may be indicated by a notifica- 
 tion from the Secretary of the NaA-^^ no exami- 
 nation or new appointment or confirmation 
 by the Senate being necessary. (20 Op. Attv. 
 Gen., 358.) 
 
 Erroneous promotion of officer not 
 physically quaUfied. — An ensign in the Navy 
 who failed to pass the physical examination for 
 promotion to lieutenant (junior grade) but 
 whose name was inadvertently included in the 
 list of officers who had passed such examination, 
 and who because of such inadvertence was not 
 adv-ised by the Na\'j Department of his failure 
 to pass such examination but was appointed and 
 commissioned as a lieutenant (junior grade) and 
 performed service as such, was a de facto 
 lieutenant (junior grade) for the period of per- 
 
 708 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1494. 
 
 formance of such service, viz, from date of 
 receipt by him of his commission as lieutenant 
 (junior grade) to date of notification of the er- 
 roneous issuance of such commission, and is 
 entitled to retain pay as a lieutenant (junior 
 grade) received by him for such period. (19 
 Comp. Dec, 747.)' 
 
 The physical qualification required by sec- 
 tion 1493, Revised Statutes, as a condition 
 precedent to the promotion of naval officers is 
 not unconstitutional (citing 13 Op. Atty. Gen., 
 516, 520, 524, 525), nor is it directory merely; 
 and an ensign who was nominated, confirmed, 
 and commissioned as a lieutenant (junior 
 grade), without having qualified for such pro- 
 motion by passing the physical examination 
 required by said section, did not become 
 legally invested with the office of lieutenant 
 (junior grade). (20 Comp. Dec, 13, citing 
 Jouett V. V.S.. 28 Ct. Cls. , 266. Compare note 
 to Constitution, ante. Art. II, sec. 2, clause 2.) 
 
 Pay of officer while undergoing exami- 
 nation. — Sections 1493 and 1496, Re\dsed 
 Statutes, provide for an examination of certain 
 officers of the Na^^^ as a prerequisite to their 
 promotion. The temporary absence of an 
 officer from his vessel, not on special duty, or on 
 duty consistent with the exercise of the duties 
 of his position on the vessel, does not alter his 
 sea status. The officer in this case was not 
 ordered to the performance of any specific duty 
 as such. The examination for his promotion 
 was rather in the nature of an incident to his 
 ser\'ice of whatever character it might be at the 
 time. To hold that his absence while engaged 
 in examinations under the law for his promotion 
 separated him from his ship would be virtually 
 to exclude officers at sea from the benefits in- 
 tended to apply alike to all grades and classes 
 of the ser\'ice. Examination for promotion is 
 incident to sea service as well as to shore service, 
 and is not a special duty inconsistent with serv- 
 
 ice in any grade or class. Accordingly, held 
 that an officer of the Navy attached to a sea- 
 going vessel is entitled to sea pay while tempo- 
 rarily absent from his vessel attending examina- 
 tions for his promotion, unless his absence is 
 under such circumstances that it operates to 
 detach him from his vessel ; but he is not en- 
 titled to commutation of rations for the reason 
 that he is not then "doing duty on board," as 
 required by section 1579, Re\ised Statutes. 
 (4 Comp. Dec, 455.) 
 
 This section not applicable to temporary 
 promotions. — See note to section 1496, 
 Revised Statutes. 
 
 New physical examination not required 
 in case of delayed promotion. — An officer 
 ha\'ing qualified physically upon examination 
 for promotion by a board of naval examiners, 
 he may thereafter be promoted when found 
 mentally, morally, and professionally qualified 
 ■without any further physical examination, 
 notwithstanding that considerable delay may 
 occur before his qualifications are established 
 upon examination by a naval examining board 
 in accordance with section 1496, Rei-ised 
 Statutes. A new physical examination in 
 such cases of delay ia customarily required by 
 the executive for the good of the servdce, in 
 order that an officer may not be advanced to a 
 higher grade when not physically in condition 
 to perform the duties thereof; but another 
 formal examination by a board of medical ex- 
 aminers might be dispensed with if the officer 
 has once fully qualified physically for pro- 
 motion, notwithstanding that delay may occur 
 in the actual promotion of such officer, or he 
 might under such circumstances be examined 
 and promoted upon the informal report of a 
 single medical officer or a non-statutory board. 
 (File 26266-627:1, Jan. 30, 1919; see also 22 
 Comp. Dec, 153; compare Hooper v. U. S., 
 53 Ct. Cls., 90.) 
 
 Sec. 1494. [Physical disqualification by wounds.] The provisions of the 
 preceding section shall not exclude from the promotion to which he would 
 otherwise be regularly entitled any officer in whose case such medical board 
 may report that his physical disqualification was occasioned by wounds re- 
 ceived in the line of his duty, and that such wounds do not incapacitate him 
 for other duties in the grade to which he shall be promoted. — (21 April, 1864, c. 
 63, s. 4, V. 13, p. 53. 28 July, 1866, c. 312, s. 1, v. 14, pp. 344, 345.) 
 
 Amendment to this section was made by act 
 of August 29, 1916 (39 Stat., 611), which 
 provided that "the provisions of sections 
 fourteen hundred and ninety-three and 
 fourteen hundred and ninety-four of the 
 Revised Statutes of the United States shall 
 apply to the Marine Corps;" and by act of 
 May 22, 1917, section 20 (40 Stat., 89), 
 which pro\T.ded "that hereafter all laws 
 relating to the examination of officers of 
 the Navy for promotion shall be construed 
 to apply to the regular advancement of 
 staff officers to higher ranks on the active 
 list the same as though such advancements 
 in rank were promotions to higher grades: 
 Provided, That examinations for such staff 
 officers shall not be reciuired except for 
 such resrular advancement in rank." It 
 
 is further provided by the act of August 29, 
 1916 (39 Stat., 579), that "no captain, com- 
 mander, or lieutenant commander shall be 
 promoted unless he has had not less than 
 two years' actual sea service on seagoing 
 ships in the grade in which ser\'ing." 
 By act of July 11, 1919 (41 Stat., 147), it was 
 proAided "that the pro^dsions of the act of 
 August 29, 1916, regarding the promotion 
 of captains in the line of the permanent 
 Navy shall not restrict the promotion of 
 such captains as may have been wounded 
 in line of duty and who are now on the 
 active list, and such captains shall be en- 
 titled to the benefits of the provisions of 
 section 1494, Revised Statutes of the 
 United States, and also to the benefits of 
 the act of March 4, 1911 [;?6 Stat.. 1267]." 
 
 709 
 
Sec. 1496. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 The expression "wounds received in the 
 line of his duty," found in Kertion 1494, 
 Kovisod Statutes, nieaus precisely wliat it says, 
 and is not restricted to any particular part of 
 that duty, as to wounds received in battle or 
 in some hazardous enterprise. The statute is 
 plain and unanihis;uous, and therefore neither 
 calls for nor admits of construction. It must 
 be read as it is w-ritten. An officer thus dis- 
 qualilied for sea duty is eligible for promotion 
 if his Avounds do not incapacitate him for other 
 duties in the grade to which he seeks promo- 
 tion. The words "other duties" in section 
 1494 refer to duties other than duties at sea. 
 (23 Op. Atty. Gen., 324.) 
 
 For definition of "line of duty" see note to 
 section 1451, Re\dsed Statutes. 
 
 Precedents of Navy Department. — ^In 
 1898 Ensign Wilfred V. Powelson was so seri- 
 ously injured in both legs by falling through 
 a hatch, as to be physically disqualified for 
 duty on shipboard, yet he was under this sec- 
 tion promoted to lieutenant (junior grade), 
 the board haAdng found that his wounds did 
 not incapacitate him for other duties in that 
 grade. (23 Op. Atty. Gen., 324.) 
 
 In 1895 Assistant Engineer Walter S. Burke, 
 while on duty on shipboard, had his arm 
 crushed in the machinery, resulting in ampu- 
 tation of the forearm. In August, 1896, upon 
 examination for promotion, the board found 
 that solely from the facts above stated he was 
 disqualified for the performance of his duties 
 at sea but that he was not incapacitated for the 
 other duties of his profession in the grade to 
 which he sought to be promoted and he was 
 promoted accordingly. (23 Op. Atty. Gen., 
 324.) 
 
 In 1868 Passed Assistant Engineer Cooper 
 lost a leg from having it crushed in machinery 
 while on duty on shipboard. Though incapac- 
 itated for sea service, he was afterward pro- 
 moted, under this section, and performed satis- 
 factorily the shore duties to which he was 
 assigned. In November, 1877, he was ordered 
 before a retiring board, which found that he 
 was not incapacitated for active service, in 
 the meaning of the law, and therefore did not 
 recommend him for retirement. Upon the 
 record of these proceedings, President Hayes 
 made this endorsement: '"this report and find- 
 ing are approved. Mr. Cooper w411 not be re- 
 tired." This could only have been upon the 
 ground that the officer, though disqualified 
 for "duties at sea," was not incapacitated for 
 the "other duties" mentioned in section 1494. 
 (23 Op. Atty. Gen., 324.) 
 
 The precedents of the Navy Department 
 under section 1494, Revised Statutes, are 
 correct; such precedents should not be departed 
 from in the case of a particular officer, unless 
 they are clearly Avrong or detrimental to the 
 service, even if there were doubt as to their 
 correctness. (23 Op. Atty. Gen., 324.) 
 
 Purpose of section 1494. — There are 
 various duties other and no less important than 
 those on shipboard; and these under existing 
 regulations must l)e performed by officers of 
 various grades. This being so, Congress may 
 well fill these places from meritorious officers 
 whose wounds received in the ser\dce have 
 incapacitated them for active duty at sea, and 
 provide for their promotion in due course 
 as it has done. There is no rea.son why an 
 officer wounded in the service should not be 
 promoted as well as his more fortunate brother, 
 if there are duties in the higher grade which 
 he can satisfactorily and sufficiently perform; 
 and this is recognized in the section under 
 consideration. (23 Op. Atty. Gen., 324.) 
 
 Practical objections can not be remedied 
 by administrative action. — The real objec- 
 tion, if there be any, to the promotion of an 
 officer physically disqualified for duty on ship- 
 board is that such promotion would to a great 
 extent prevent the service from receiving in 
 that grade all the benefit it would receive from 
 the service of a sound man; and as the number 
 of such officers is limited, the whole may be 
 required for sea duty, and the filling of one or 
 more vacancies by promotion of men fit for 
 shore duty alone might be detrimental to the 
 service. If the statute under consideration 
 (sec. 1494) were ambiguous and it were clear 
 that such ijromotion of officers who are capable 
 of shore duty only was seriously detrimental 
 to the service, this might be a reason for giving 
 it another construction, if possible. But the 
 statute is not ambiguous, and no rule of inter- 
 pretation permits us to do violence to its plain 
 terms in order to avoid what is at best only a 
 remote possibility and one which Congress 
 could not have overlooked in framing these 
 sections (sees. 1493 and 1494); and one which 
 has not been a serious menace to the service 
 in the 30 or more years since the legislation 
 was enacted. All these considerations are 
 exclusively in the discretion of Congress. If 
 it shall be found that under existing laws and 
 practice the number of officers of a certain 
 grade fit for sea duty is not adequate to the 
 requirements of that branch of the service, 
 Congress may correct the evil by either in- 
 creasing the number or requiring full qualifica- 
 tion for promotion. (23 Op. Atty. Gen., 324.) 
 
 The act of JvQy 11, 1919 (above quoted), 
 waives the proAisions of the selection law in the 
 case of any captain who was on the active List 
 on the date of said act and who had been 
 woimded in line of duty. Any such captain 
 was thereby made eligible for promotion by 
 seniority, under the law as it stood prior to Au- 
 gust 29, 1916; and under section 1494 may be 
 promoted if physically qualified for duties 
 other than at sea; or, if not so qualified, is enti- 
 tled, on retirement, to the rank to which his 
 seniority entitled him to be promoted. (File 
 26521-351, July 31 and Sept. 19, 1919.) 
 
 Marine Corps examinations. — See note to 
 section 1493, ReAdsed Statutes. 
 
 Sec. 1495. [Examinations, when; and effect of.] Officers subject to exam- 
 ination before promotion to a grade limited in number by law shall not be 
 entitled to examination in such a sense as to give increase of pay until desig- 
 
 710 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1496. 
 
 nated by the Secretary of the Navy to fill vacancies in the higher gi-ade ; and 
 
 officers eligible for promotion to a grade not limited in number shall not be 
 
 entitled to examination until ordered to present themselves for examination 
 
 or until a class, in which they are included, has been so ordered by the Secretary 
 
 of the Navy.— (3 Mar., 1873, c. 230, s. 1, v. 17, p. 555. 22 June, 1874, c. 392, 
 
 V. 18, p. 191.) 
 
 examinations for promotion of officers in the 
 Marine Corps. (25 Op. Atty. Gen., 568.) 
 
 Engineer ofi&cers. — Under the law and the 
 regulations a first assistant engineer became 
 eligible to examination for promotion when he 
 had served two years at sea upon a naval 
 steamer. But he was merely eligible. He 
 was not entitled to be examined until his turn 
 for promotion had arrived or was near at hand. 
 In no event therefore could he demand that the 
 increased pay of his new grade should besin 
 untU he had a right to be examined for promo- 
 tion. (Hunt V. U. S., 116 U. S., 394, 397.) 
 
 Examination of ensigfns. — The grade of 
 lieutenant (junior grade) being a grade "not 
 limited in number" ^vithin the meaning of 
 section 1495, Re\dsed Statutes, an ensign is 
 not entitled to be examined for promotion to 
 the grade of lieutenant (junior grade) on his 
 termination of three years service in the grade 
 of ensign unless ordered to present himself 
 for examination or until a class in which he is 
 included has l)een so ordered by the Secretary 
 of the Navj'. (18 Comp. Dec. ,466.) 
 
 The grade of lieutenant (junior grade) is a 
 grade not limited in number. The right of 
 officers to examination for promotion to a 
 grade "not limited in number" prior to their 
 being ordered to present themselves therefor 
 is governed by section 1495, Revised Statutes. 
 (22 Comp. Dec, 565, citing 18 Comp. Dec, 
 466, 17 Comp. Dec, 605, Hunt v. U. S., 116 
 U. S., 394, 397, Doyle v. U. S., 48 Ct. Cls., 142; 
 see also 24 Comp. Dec, 639.) 
 
 Sec. 1496. [Mental, moral, and professional examination.] No line officer 
 below the grade of commodore, and no officer not of the fine, shall be promoted 
 to a higher gi-ade on the active list of the Navy until his mental, moral, and 
 professional fitness to perform all his duties at sea have been estabfished to 
 the satisfaction of a board of examining officers appointed by the President.— 
 (21 April, 1864, c. 63, s. 1, v. 13, p. 53.) 
 
 Examination of staff officers for advancement 
 in rank. See act of May 22, 1917, section 
 20 (40 Stat., 89), quoted in note to section 
 1494, Revised Statutes. 
 
 See notes to sections 1505 and 1562, Revised 
 Statutes. 
 
 Examinations in Marine Corps. — ^The act 
 
 of October 1, 1890 (26 Stat., 562), relating to the 
 Army, directs that examinations be conducted 
 at such times anterior to the accruing of the 
 right to promotion as may be best for the 
 interests of the service. This provision is 
 made to apply to the examination for promo- 
 tion of commissioned officers in the Marine Corp 
 below the grade of commandmant by the act of 
 July 28, 1892 (27 Stat., 321). The act of Febru- 
 ary 2, 1901 (31 Stat., 756, sec. 32), relating to 
 the Army, provides that "when the exigencies 
 of the service of any officer who would be 
 entitled to promotion upon examination re- 
 quire htm to remain absent from any place 
 where an examining board could be convened, 
 the President is hereby authorized to promote 
 such officer, subject to examination, and the 
 examination shall take place as soon thereafter 
 as practicable. If upon examination the 
 officer be found disqualified for promotion, he 
 shall, upon the approval of the proceedings by 
 the Secretary of War, be treated in the same 
 manner as if he had been examined prior to 
 promotion." By the act of July 28, 1892, 
 supra, this provision of the act of February 2, 
 1901, is undoubtedly made applicable to 
 
 Amendment to this section was made by act of 
 May 22, 1917, section 20 (40 Stat., 89), 
 which provided "that hereafter all lawa 
 relating to the examination of officers of the 
 Navy for promotion shall be construed to 
 apply to the regular advancement of staff 
 officers to higher ranks on the active list 
 the same as though such advancements in 
 rank were promotions to higher grades: 
 Provided, That examinations for such staff 
 officers shall not be required except for 
 such regular advancements in rank." Also 
 by act of JSIarch 4, 1917 (39 Stats., 1171), 
 pro%'iding that the senior officer present or 
 other commanding officer on a foreign sta- 
 tion may be authorized by the Secretary of 
 the Navy to order boards for examination 
 of candidates for promotion in the Navy 
 and Marine Corps. 
 
 Officers who fail upon examination for promo- 
 tion by reason of drunkenness or other mis- 
 _ conduct, to be discharged with not more 
 than one year's pay. (Act Aug. 5, 1882, 
 22 Stat., 286.) 
 
 Officers selected for promotion to the grades of 
 commander,' captain, and rear admiral shall 
 undergo the examinations prescribed by 
 law for officers promoted by senioritv. 
 (Act Aug. 29, 1916, 39 Stat., 579.) 
 
 Suspension from promotion of officers failing 
 professionally upon examination, is pro- 
 \'ided for by section 1505, Re^'ised Statutes, 
 as amended, which also provides for the 
 discharge of such officers failing upon reex- 
 amination after period of suspension. 
 
 The grade of commodore on the active list of the 
 Navy was abolished by act of March 3, 
 1899, section 7 (30 Stat., 1005). See note 
 
 to section 1362, Revised Statutes. 
 
 711 
 
Sec. 1496. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Questions of law arising before exam- 
 ining board. — The existing regulations with 
 reference to examining boards provide that 
 "any question of law arising before the board, 
 * * * shall be submitted to the Judge Ad- 
 vocate General " (see Naval Courts and Boards, 
 see. 634). \Miile this, no doubt, is intended to 
 apply to specific questions arising in concrete 
 cases, it is quite eA'ident that it contemplates 
 the same distinction vrith reference to ques- 
 tions of law and fact arising before examining 
 boards as is made by the department with ref- 
 erence to questions of law and fact arising before 
 courts-martial ; in other words, that while ques- 
 tions of fact are properly to be left to the exclu- 
 sive determination of the board in the first in- 
 stance, upon questions of law the board should 
 ascertain and be guided by the decisions of the 
 department, opinions of law officers of the Gov- 
 ernment, and other authorities which -ndll be 
 furnished by the Judge Advocate General when 
 required. (File 26521-179, Feb. 19, 1917.) 
 
 In construing laws relating to the naval sei'v- 
 ice, the board \'rill be guided by the consti-uc- 
 ticn placed upon them by the Na^y Depart- 
 ment, and will not qualify its recommendation 
 by any proviso concerning the legality of the 
 department's decisions. (File 26260-3362, Mar. 
 21, 1916.) 
 
 "Mental," "moral," and "professional," 
 defined and distinguished. — As to moral 
 qualifications, see note to section 1456, Re\ised 
 Statutes. 
 
 An exact definition of the words "mental, 
 moral, and professional " is not desirable and 
 should not be attempted. Such a definition 
 would likely prove defective and a source of 
 embarrassment in the future, not only with 
 reference to the subject matter included therein , 
 but also in respect to matters of exclusion. 
 This is the view which has heretofore been 
 taken by the department, and also by the 
 courts with reference to similar questions. 
 (File 26521-179, Feb. 19, 1917, citing file 
 26260-1319, Jime 29, 1911, p. 10, and Swaim v. 
 V. S., 28 €t. Cls., 173.) 
 
 With reference to the words "mental inca- 
 pacity, " as used in connection with ci\'il trans- 
 actions, it has been judicially stated: "No clear 
 and definite rule can be laid down, defining 
 mental incapacity * * * which will apply 
 m all cases * * * . Each case, therefore, 
 must, to a certain extent, rest upon its own 
 peculiar circumstances." (File 26521-179, Feb. 
 19, 1917, citing Allen v, Allen, 64 Atl., 1115.) 
 
 With reference to what constitutes mental, 
 moral, and professional incapacity certain 
 principles have been settled or may be deduced 
 from the law, regulations, and precedents which 
 will be helpful in arriving at a proper conclusion. 
 (File 26521-179, Feb. 19, 1917.) 
 
 "There can be no doubt as to the nature of 
 so much of the inquiry as regards professional 
 fitness for the naval service. That is a question 
 of specialty, which speaks for itself. So it is in 
 the matter of physical condition, which is the 
 familiar subject of the pension law. But the law 
 also calls for investigation of mental and moral 
 fitness * * * . As to this point, there 
 is nothing of innovation, or contradiction of pre- 
 existing law, in either of the acts. Qualities of 
 mind, things moral as distinguished from things 
 
 physical, not only courage, promptitude, effi- 
 ciency, but patriotism, honor, virtue, and the 
 opposites of each, as cowardice, negligence, 
 insufficiency, disaffection, dissoluteness, are ex- 
 pressly mentioned, either for praise or blame, 
 as the case may be, in the rides for the govern- 
 ment of the Navy," (8 Op. Atty. Gen., 337, 
 352.) 
 
 The Na\'y Regulations draw a marked dis- 
 tinction between "professional" fitness on the 
 one hand, and "mental and moral" fitness on 
 the other. _ This distinction and classification 
 is not original with the regulations, for as early 
 as January 31, 1857, the Attorney General, in 
 an opinion to the Secretary of the Navy (8 Op. 
 Atty. Gen., 337, 352), separated "mental and 
 moral" on the one hand from "physical and 
 professional" fitness on the other. (File 
 26521-179, Feb. 19, 1917.) 
 
 The Navy Department's precedents are in 
 harmony with the Attorney General's opinion 
 (8 Op. Atty. Gen., 337, 352), in which "mental 
 and moral" qualifications are grouped and 
 classified together as "qualities of mind, things 
 moral as distinguished from things physical." 
 (File 26521-179, Feb. 19, 1917.) 
 
 The so-called "Naval Efficiency Act," ap- 
 proved February 28, 1855 (10 Stat., 616), pro- 
 vided in part for the separation from the active 
 service of officers found by an examining 
 board to be "incapable" of perfonning their 
 duties. Instructions were issued by the Sec- 
 retary of the Navy to the board of officers to the 
 effect that "an officer may be 'incapable,' 
 either mentally, physically, or morally; for 
 although he may possess a strong mind and 
 robust frame, yet, if his moral perception of 
 right and wrong be so blunted and debased as 
 to render him unreliable, he could hardly be 
 regarded as lieing the capable officer, to be 
 intrusted with the lives of his countrymen, 
 and the property and honor of his country." 
 Here the department's instructions regarded 
 "mental" fitness as meaning "possessing a 
 strong mind," and "moral " fitness as implying 
 a correct "perception of right and wrong." In 
 other words, these instructions classified 
 "mental" and "moral" qualifications as 
 "qualities of mind," the same as did the sub- 
 sequent opinion of the Attorney General (8 Op. 
 Atty. Gen., 337, 352). These instructions of the 
 Secretary of the Navy were upheld by the At- 
 torney General December 10, 1856 (8 Op. Atty. 
 Gen., 223, 233), as being well within the scope 
 of the statute. (File 26521-179, Feb. 19, 1917. 
 Note. — The question submitted to the Attorney 
 General in the opinion last cited was whether, 
 among other things, "any error of law was com- 
 mitted by the Secretary of the Navy, in his 
 instructions to the board of officers"; and the 
 Attorney General held that "no error of law 
 has been committed on which to base claim for 
 the reversal of the finding of the board or of the 
 approval of the President," stating in the 
 course of his opinion that, as compared with the 
 letter of the act, the instructions seem to be 
 not enabling, but on the contrary restrictive, 
 so as to caution the board in theii" dealing with 
 moral, as distinguished from physical or mental 
 inability or incompetency to perform, promptly 
 and efficiently, all the possible duties of an 
 officer of the Navy.) 
 
 712 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1496. 
 
 The law requires that both the moral and 
 professional fitness be established. The use 
 of both words suggests that the moral qualifica- 
 tions to be shown are such as are independent of 
 the professional ; those qualities which may exist 
 and yet are such as do not appear in a purely 
 professional examination, however searching 
 that examination may be. (File 29260-2969, 
 June 12, 1915.) 
 
 Clearly the written examination of a candi- 
 date on professional subjects goes to demon- 
 strate his professional fitness, and a failure in 
 any professional subject inquired into on the 
 written examination is a professional faUiue 
 within the meaning of the law. It is only 
 where one or more reports on fitness which are 
 considered by the examining board are found 
 to be so unsatisfactory that the board for that 
 reason, independent of the ^vritten examination, 
 determines that an officer is not qualified for 
 promotion, that a decision must be made as to 
 whether his disqualification rests on moral or 
 professional grounds. (File 29260-2969, June 
 12, 1915.) 
 
 It is recognized that the line of demarcation 
 between professional and moral fitness in some 
 instances is not clearly di'awn, either by law or 
 regulations, and that consequently confusion 
 results in applying a uniform standard to all 
 cases where a decision must be made as to 
 whether the chai'acter of the reports on fitness 
 of the candidate establish his moral or pro- 
 fessional imfitness for promotion. Especially 
 is the standard a varying one where ofiicers 
 appear before different examining boards. It 
 is obvious that in justice to the service no offi- 
 cer who has been found to be morally disquali- 
 fied to be promoted should be continued therein 
 and that in justice to the officer, no summary 
 severance from the ser\"ice should be made on the 
 ground of moral failure when the disqualifica- 
 tion is in fact a professional one, to which the 
 law attaches a less severe penalty without the 
 stigma which attaches in the fonner case. 
 (File 26260-2969, June 12, 1915.) 
 
 To be continued in the commissioned per- 
 sonnel, one must be "an officer and a gentle- 
 man. ' ' The standard as an officer to which one 
 must measure is a professional standard, and 
 the test usually laid down is a written examina- 
 tion on professional subjects, coupled with a 
 satisfactory professional record. The standard 
 as a gentleman to which an officer must measure 
 is nothing more or less tlian the standard of a 
 gentleman in any walk of life, and the test of 
 moral fitness of an officer is, in the opinion of 
 the department, the test necessary to determine 
 the moral fitness of one purporting to be a 
 gentleman who is not in the naval service. 
 (File 29260-2969, June 12, 1915.) 
 
 "Moral" may be defined as pertaining to 
 those intentions and actions on which right and 
 wrong, virtue and vice, are predicated, or to the 
 rules by which such intentions and actions 
 ought to be directed; "relating to the practice, 
 manners, or conduct of men as social beings in 
 relation to each other, as respects right and 
 wrong, so far as they are properly subject to 
 niles" (citing Webster's Int. Die). Accepting 
 this definition and keeping in mind that the 
 professional examinations cover all questions 
 of right and wrong in a professional sense, we find 
 
 that moral fitness in the sense of gentlemanly 
 fitness relates "to the practice, manners, or 
 conduct of men as social beings in relation to 
 each other, as respects right and wrong (in a 
 moral as distinguished from a professional 
 sense), so far as they are properly subject to 
 rules" (i. e., so far as they are subject to a 
 recognized or established moral procedure). 
 (File 29260-2969, June 12, 1915.) 
 
 A qmte clear distinction can be drawn 
 between professional and moi-al qualifications. 
 As to mental qualifications, the distinction 
 between it and professional, moral, or even 
 physical qualifications is far more difficult of 
 determination, to say nothing of definition; 
 and it seems impossible to state any clear line 
 of demarcation between them that will cover 
 all cases, inasmuch as the term "mental" is 
 broader than the others and mavbe included in 
 one or all of the other terms. "(File 26521-179, 
 Feb. 19, 1917.) 
 
 Referring to the board's definition of mental 
 fitness, as follows, ' ' In this connection, the term 
 refers only to the general intelligence of the 
 candidate as shown in his written examination, 
 or by his personal attitude and bearing before 
 the board, or by his record," it is hardly con- 
 sidered that a candidate's "personal attitude 
 and bearing before the board " should be a basis 
 of judgment as to mental qualifications, unless 
 accompanied by a display of temperamental 
 (qualities properly to be considered as affect- 
 ing mental or other qualifications. Also in the 
 same definition it would be well to include 
 impressions gained from the oral examination. 
 In addition also to the "general intelligence" 
 of a candidate, it is considered that his mental 
 qualifications must inchide also the character, 
 power, and qualities of his mind and his temper- 
 amental qualities. It is clear that mental qual- 
 ifications refer essentially to temperamental 
 qualities, and it is therefore considered that the 
 examples of professional unfitness cited by the 
 board, as follows, "Poor judgment, inaccuracy, 
 slovenliness, insubordination, indolence, unre- 
 liability, captiousness, lack of force, lack of 
 initiative, or any other temperamental unfit- 
 ness which in civil life would not be considered 
 as indicating mental abnormality or moral 
 obliquity," might well, in many cases, be re- 
 garded as indicative also of mental unfitness. 
 As emphasized before, however, each case must 
 be settled on its own particular merits. If one 
 or more of these traits is present to an extent 
 rendering the candidate, in the opinion of the 
 board, professionally unfit for promotion, a 
 complete finding would seem to be that he is 
 morally, but not mentally or professionally, 
 qualified for promotion. (File 26521-179, Feb. 
 19, 1917.) 
 
 The lack of proper mental or moral qualifica- 
 tions may, and usually does, affect an officer's 
 professional or physical qualifications. This is 
 best sho^vn by the fact that an examination of 
 the department's records for a period of 24 years 
 (1880-1904) has disclosed only a few isolated 
 cases in which an officer who was found not 
 mentally qualified for promotion was reported 
 at the same time to possess all the necessary 
 professional, moral, and physical require- 
 ments. The almost invariable rule has been 
 that the lack of the necessary mental qualifica- 
 
 713 
 
Sec. 1496. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 tions is coupled with other deficiencies and it 
 seems aUogether reasonable that, as a general 
 thing, this should be the case. Nevertheless 
 it will not be contended that lack of mental 
 qualifications, in the sense of the statute, can 
 not exist independently of professional, moral, 
 or physical imfitness. Otherwise it would not 
 have been nece^>sary for Congress to specify all 
 four requirements for promotion in the NaA^y as 
 it has done for more than 50 years. A diseased 
 brain, although properly classified as physical 
 unfitness, would seem necessarily to be accom- 
 panied by lack of the mental, moral, or profes- 
 sional qualifications for promotion; but it is en- 
 tirely possible for an officer to be mentally, 
 morally, or professionally unfitted for promo- 
 tion without disease of the brain. In short, as 
 has heretof(n-e been remarked by the Judge Ad- 
 vocate General in a similar connection (file 
 26260-1319, Jime 29, 1911), "any discussion of 
 the question whether an officer can be morally 
 imfit for promotion, without his mental, pro- 
 fessional or physical qualifications being af- 
 fected, however interesting it may be, becomes 
 purely idle and academic when we remember 
 that Congress has itself, by express language in 
 the act of April 21, 1864 (sec. 1496, R. S.), pro- 
 vided that no officer shall be promoted to a 
 higher grade until his moral, as well as his men- 
 tal, professional and physical fitness, shall have 
 been established to the satisfaction of the board 
 of examining officers." (File 26521-179, Feb. 
 19, 1917.) 
 
 Navy department's precedents. — ^The 
 department's precedents in which the ques- 
 tion of mental, moral, or professional fitness is 
 involved may be cited quite as much to indicate 
 the somewhat varying interpretation of what 
 constitutes mental disqualifications as to offer 
 matter fi-om which a clear definition thereof 
 may be deduced. Incidentally, they confirm 
 the more easily marked distinction between 
 professional and moral disqualifications. It is 
 believed that it will be very rare when accord- 
 ing to the department's \-iews a case will arise 
 in which mental unfitness w^ould not be coupled 
 M-ith professional, moral, or physical disquali- 
 fications. (File 26521-179, Feb. 19, 1917.) 
 
 The following precedents are quoted from the 
 Secretary of the Na\y's letter of February 19, 
 1917, to the Naval Examining Board, Navy 
 Yard, Washington, D. C. (file 26521-179): 
 
 MENTAL QUALIFICATIONS. 
 
 (a) Commodore WilUam K, Mayo, examined 
 for promotion, February 12, 1886. Board re- 
 ported as follows: "The candidate having 
 failed to establish his mental fitness in all 
 respects, the board can not give the certificate 
 reqiured by section 1504 R. S., that he has the 
 mental, moral, and professional qualifications 
 to perform efficiently all the duties, both at sea 
 and on shore, of the next higher grade, and 
 therefore we do not recommend him for pro- 
 motion." This finding was adhered to by the 
 board after further proceedings. 
 
 Commodore Mayo's reports on fitness con- 
 tained among other things the following un- 
 favorable entries: "The general impression 
 seems to be that he is a difficult person to get 
 along harmoniously with." "While, in my 
 
 opinion, possessinp; the requisite qualifications, 
 I am afraid, judging from my personal experi- 
 ence with him, that nis temperament and dispo- 
 sition are such as would miUtate against the 
 chances of his efficiency and usefulness in any 
 position." "His mental faculties are such as 
 to qualify him for promotion but, in my opinion, 
 his judgment is apt to be warped by his sus- 
 picionsand prejudices." As to the general 
 reputation of the candidate, "it is that of a man 
 who, by his suspicions and prejudices makes it 
 exceedingly un]>lea.sant for those who have the 
 misfortune to serve with him." "In my judg- 
 ment Commodore Mayo is so peculiarly consti- 
 tuted that his judgment is often so warped by 
 his strong prejudices and suspicions as to unfit 
 him for the calm consideration and solution of 
 important questions that may come before him. 
 Holding this opinion I can not conscientiously 
 think him a fit oflicer to perform all his duties 
 at sea in a higher grade." Other matters of 
 record related to "rudeness in speech," "dis- 
 courtesy of demeanor," "severity and harsh- 
 ness," etc. Fifteen specific cases of complaint 
 against Commodore Mayo were given thorough 
 consideration by the board . Referring to these 
 cases the board stated in its first report: 
 
 "Any one of the foregoing cases, taken by 
 itself, might be considered as of minor impor- 
 tance and as exhibiting on the part of Commo- 
 dore Mayo a mere error of judgment, which all 
 men are, at one time or another, liable to fall 
 into. But, aggregated, they indicate unmis- 
 takably a habit and condition of mind the mani- 
 festation of which, in a commanding officer, is 
 demoralizing in its tendency and subversive of 
 discipline. If, while in command of a shore 
 station, and under the restraining influences of 
 the Navy Department, Commodore Mayo has 
 displayed such mental peculiarities as are 
 shown by the evidence, the board is forced to 
 the conclusion that he ought not to be intrusted 
 with the duties and responstbili ties inseparable 
 from a command in foreign waters. ' ' 
 
 In its second report the board stated: 
 
 ' ' In the several citations made the candidate 
 claims that he was acting in the interest of dis- 
 cipline — while the board considers the major- 
 ity of those acts to be subversive of discipline. 
 And it is this failure on the part of the candi- 
 date, even after a deliberate "view of his case — 
 assisted as he was by able counsel and expert 
 ad\ice — ^to apprehend the true direction to 
 which the whole mass of the documentary evi- 
 dence points— that furnishes the strongest cor- 
 roborative evidence of the candidate's imper- 
 fect ideas in regard to discipline, and adds to 
 the proof of his incapacity to exercise at all 
 times the discretion looked for in a comman- 
 dant." 
 
 No action was taken by the President upon 
 the record of the board's finding, as the case 
 was disposed of by the retirement of Commo- 
 dore Mayo upon his own application after 40 
 years' ser^ice, under section 1443, Re\ised 
 Statutes. 
 
 (6) Asst. Surg. Frederick Joaquin Barbosa 
 Cordeiro, examined for promotion, July 23, 
 1887. Board reported as follows: 
 
 "The board, after carefully considering all 
 the evidence in the case of the candidate, in- 
 cluding his single testimonial, the records on 
 
 714 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1496. 
 
 file at the Navy Department, the interroga- 
 tories addressed to various naval officers and 
 the answers thereto, and the letter and state- 
 ment of the candidate, all of wliich, including 
 copies of the records on file at the department, 
 are hereunto appended, concluded the exam- 
 ination of the candidate, and decided that the 
 mental fitness of the candidate to perform all 
 his duties, at sea and on shore, has not been 
 established to the satisfaction of the board; 
 therefore we certify that Asst. Surg. Fi'ederick 
 Joaquin Barbosa Cordeiro, United States Navy, 
 does not possess the mental qualifications to 
 perform efficiently, at sea and on shore, all the 
 duties of the gi'ade to which he seeks promotion. 
 
 "The board are led to the above conclusion 
 by the e^idence hereunto appended, which 
 establishes clearly to their minds the fact that 
 Asst. Surg. Frederick Joaquin Barbosa Cor- 
 deiro, United States NaAy% has an insubordi- 
 nate disposition and is therefore lacking in one 
 of the most essential qualifications of an officer 
 of the NavJ^ In view of this fact we do not 
 recommend him for promotion." 
 
 The board reassembled November 10, 1887, 
 pursuant to orders, and fm-ther examined the 
 candidate. December 22, 1887, the board 
 completed its proceedings and reported that it 
 
 "Decided that the candidate has exhibited 
 professional qualifications as well as literary 
 and scientific attainments of more than the 
 average excellence and that his moral fitness 
 has also been establislied to the satisfaction of 
 the boai'd, but that his mental fitness for pro- 
 motion has not been so estalilished. 
 
 "After carefully reviewing the subject of 
 the mental fitness of the candidate for pro- 
 motion the board see no reason to change their 
 opinion as expressed in their report made 
 July 23, 1887. The board arrived at this conclu- 
 sion for the reasons that the candidate has failed 
 to present any favoral^Ie testimony or letter 
 from any senior medical officer with whom he 
 has served since he has been in the service, that 
 two of these officers have pronounced him unfit 
 for promotion, that the records on file at the 
 Navy Depaitment contain opinions from the 
 Singeon General and from Rear Admiral L. 
 A. Kimberly, United States Navy, of the same 
 nature, and that the service would be benefited 
 by his resignation, and that he has been 
 severely reprimanded by the Secretary of the 
 Navy. The board _ also consider that the 
 answers to 10 of the interrogatories are unfavor- 
 able to the candidate as contributing to the 
 evidence exhibiting his mental tendency as 
 insubordinate and unduly self-asserting, that 
 four- — at least are negative, and that the rest, 
 while in his favor, are chiefly from officers with 
 whom his association on duty has been indirect, 
 seven of them having had no association with 
 him on duty at all. 
 
 "The board do not consider the testimony 
 sufficient to prove any defect in the moral 
 character of the candidate, although his action 
 in showing the Medical Journal ta Ensign Dent 
 without first obtaining the consent of Surgeon 
 Kidder, his statement as to the time he spent 
 before the board of investigation at the Boston 
 Na\y Yard, 'about one minute,' and his esti- 
 mate of the time necessary to obtain a medical 
 officer's presence at the dispensary at the 
 
 Boston Navy Yard when the latter was on board 
 the receiving ship at that place, 'six minutes,' 
 both of wMch periods are manifestly under- 
 estimates and his accusation, in his defense, 
 against Lieut. Nazro of being influenced by 
 unworthy motives in answering the interroga- 
 tories as he did, would seem to indicate a feeble 
 moral sense, Ixit the board prefer to regard these 
 points as additional evidence of his mental 
 unfitness for promotion. 
 
 "The candidate seems to have been on terms 
 of hostility with two out of three medical officers 
 to whom he has been subordinate since hia 
 entry into the service. The testimony in 
 these cases, although somewhat conflicting in 
 some respects, nevertheless leads the board to 
 the opinion that he has been guilty of insubor- 
 dination and disrespect, and the board are well 
 satisfied that harmony and concert of action, 
 so desirable for the benefit of the service, did 
 not exist in the medical departments of the 
 Boston Navy Yard and of the U. S. S. Pow- 
 hatan, owing to the mental' inability of the 
 candidate to fully appreciate his position as a 
 junior officer and his disregard of the opinions 
 of his seniors. 
 
 "The full tenor of his defensive argument is 
 to the effect that he has been misrepresented 
 in eveiy instance, and that in every instance 
 he has been the victim of unjust animus, prej- 
 udice, or absolute falsehood. 
 
 " In examining the testimony of those officers 
 who have reported against either his mental or 
 professional fitness, the board have been unable 
 to detect any animus of an unjust nature against 
 him, and beUeve that such animus existed 
 only in the imagination of the candidate. 
 These animadversions in his defense in the 
 opinion of the board are still further evidence 
 of the disqualifying condition of the mental 
 constitution of the candidate. 
 
 "The plea of ignorance of the customs of 
 the service, on the part of the candidate is 
 insufficient to account for all the trouble he has 
 given those in authority over him, since all 
 young medical officers, uijon entering the 
 service, must have labored under the same 
 disadvantage, and yet it is a very uncommon 
 tiling to hear of such curious complaints against 
 them as those made against the candidate. 
 
 "The candidate, in the opinion of the board, 
 although possessing a high grade of information 
 and accomplishment as a physician is unques- 
 tionably too vain of his attainments, and is 
 unwilling to give others credit for whatever 
 proficiency they may possess. This defect in 
 his mental constitution in civil life might be 
 of small moment, but the board considers it a 
 grave defect in one belonging to the service, 
 since it could only result in destruction of 
 harmony and scandalous conflict in a depart- 
 ment in which all personal considerations 
 should subordinate themselves to the endeavor 
 to do all things for the benefit of the sick and 
 for the best interests of the service. 
 
 "In conclusion, the board do not believe that 
 the interests of the service would be subserved, 
 by the promotion of the candiadate, and there- 
 fore they do not recommend Asst. Surg. Fred- 
 erick Joaquin Barbosa Cordeiro, United States 
 Navy, for promotion." 
 
 54G41''— 22- 
 
 ■46 
 
 716 
 
Sec. 1496. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 The President's action in this case, June 15, 
 ISSS, was as follows: 
 
 ''A case is here presented of a medical officer, 
 concededly of unusual skill and attainments, 
 held unlit for promotion for no established 
 neglect of duty or anythinji; else more substan- 
 tial (so far as facts are developed), than in- 
 stances of disrespect or insubordination which 
 are almost frivolous. This officer is not the 
 morft agreeable man in the Navy in his inter- 
 course ^vith his superiors, but he should not be 
 denied promotion for that; he has probably 
 very high ideas of his ability and perhaps is 
 dogmatic; but these things, while disagreeable, 
 may exist in a man to whom it would be very 
 unjust to deny promotion. 
 
 "Besides all this, I am perfectly satisfied that 
 everj^tliing stated in the foregoing abstracts 
 that has caused unliappiness to the applicant's 
 superior officers miijht have been avoided if 
 they themselves had exercised a little tolerance 
 and forbearance. 
 
 "I can not approve the findings of the board 
 in this case. ' ' 
 
 (c) Pay Insp. John H. Stevenson, examined 
 for promotion to pay director. Board reported 
 as follows: 
 
 ' ' We are satisfied as to the professional abili- 
 ties of the candidate. His methods of business 
 are shown by the e\ddence to have been loose, 
 reckless, regardless of law, and defiant of orders, 
 but we believe his conduct is not sho\vn to have 
 been influenced by a desire for personal profit, 
 but that, from mental peculiarities or tempem- 
 ment, his moral sense of the obligations of law, 
 orders, and regulations is so obtunded as to 
 render him imfit to conduct the important 
 duties which pertain to the grade in the Navy 
 to which he is a candidate for promotion. In 
 this sense we consider him, as stated below, 
 morally unfit for promotion. We therefore 
 decide that the professional fitness of the can- 
 didate to perform the duties of a naval officer at 
 sea and on shore in the next higher grade has 
 been established, but not the mental and moral 
 fitness, and we therefore do not recommend 
 him for promotion." 
 
 The proceedings and finding of the examining 
 board m the above case of Pay Insp. Stevenson 
 were approved by the President September 
 25, 1893. 
 
 (<f) Asst. Paymaster S. J. Semmes, exam- 
 ined for promotion February 4, 1898, Foimd 
 mentally, morally, and professionally qualified. 
 Finding disapproved by the President, and 
 the case ordered before another board, which 
 found the candidate professionally, but not 
 mentally or morally qualified. Record re- 
 turned Ijy the department with instructions, 
 among others, that the board "'place upon re- 
 cord whatever matter, in its opinion, tends to 
 disqualify the candidate mentally for promo- 
 tion." Pursuant to these instructions, the 
 board caused the following entry to be made in 
 the record: 
 
 "In the matter of the previous finding of the 
 board, that the candidate was mentally dis- 
 qualified for promotion, the board wishes to 
 state that it was then and still is of the opinion 
 that the habits of Asst. Paymaster Semmes 
 mentally disqualify him, and further that the 
 transaction of the check, as shown on page 5 of 
 
 the candidate's affidavit, appended and marked 
 'H,' exhibits a mental obliquity and apparent 
 inability to see that, in cashing that check him- 
 self, as he stated he did, he used Government 
 funds for his own purposes in a manner which 
 it is deemed shows want of moral and mental 
 sense." 
 
 The Judge Advocate General in his review 
 of the above case made the following remarks: 
 
 "It is noted that the board finds Mr. Semmes 
 mentally disqualified for promotion, stating 
 that in its opinion his habits 'mentally dis- 
 qualify him,' and also that * he exhibits a men- 
 tal oblifjuity and apparent inability to see that, 
 in cashing ' his personal check out of the funds 
 in his possession as paymaster, 'he used Gov- 
 ernment funds for his own purposes in a man- 
 ner which it is deemed shows want of moral and 
 mental sense,' and yet finds him professionally 
 qualified for promotion. Although somewhat 
 peculiarly expressed, the adverse piu^ort of 
 this finding is sufficiently clear. 
 
 "A careful examination of the record does 
 not, in my judgment, disclose any evidence 
 whatever showing that Mr. Semmes was guilty 
 of dishonest conduct, but it does exhibit, first, 
 a carelessness in handling his accounts that is 
 inexcusable in an oIHcer whose duties demand 
 the greatest care and exactness; and, second, 
 that he is addicted to habits of intemperance to 
 such a degree as to unfit him for efficient servdce 
 as an officer of the Navy." 
 
 No action was taken by the President upon 
 the record in the above case, as the matter was 
 disposed of by the candidate's resignation from 
 the service. 
 
 MORAL QUALIFICATIONS. 
 
 (e) Passed Asst. Pajrmaster Louis A. Yorke, 
 examined for promotion December 14. 1886. 
 Foimd mentally, but not professionally or 
 morally qualified. The e^ddence upon which 
 the boai'd based its finding that he was not 
 morally qualified for promotion consisted prin- 
 cipally of "'several complaints wliich had been 
 made against him to the department, consisting 
 of alleged indebtedness to individuals, and of 
 neglect, refusal, or evasion to pay the same." 
 Finding approved by the President, Febru- 
 ary 19, 1887. 
 
 ij) Boatswain Louis W. Sopp, examined 
 March 1, 1906. Found that he had " the mental 
 and professional, but not the moral qualifica- 
 tions, by reason of his failure to pay his debts, 
 which is a result of his own misconduct, to per- 
 form efficiently all his duties, both at sea and 
 on shore, of the grade to which he is to be pro- 
 moted." The Secretaiy of the Navy recom- 
 mended aj^proval by the President, April 9, 
 1906, stating in part: "Persistent failure, with- 
 out adequate cause, to meet just pecuniary 
 obligations is regarded as a proper basis for a 
 finding of moral disqualification * * *. In 
 all the cases above mentioned payment was 
 unduly delayed * * *; and in some in- 
 stances promises of prompt payment appear to 
 have been lightly broken. Such conduct as 
 that of JMr. Sopp in these matters can not but 
 bring discredit upon the service, both at home 
 and abroad, and it shows, in the judgment of 
 the department, that the offender is out of 
 place as an officer in the Navy." Finding 
 
 716 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1406. 
 
 of board approved by the President April 10, 
 1906. 
 
 {g) Gunner George L. Maller^^ examined 
 October 12, 1904. Found mentally and pro- 
 fessionally, but not morally qualified, "by 
 reason of failure to pay his just debts, which 
 is the result of his own misconduct." Finding 
 approved by the President. 
 
 (h) Lieut. Robert H. Osborne, examined 
 June 9, 1908. Found mentally but not morally 
 or professionally qualified, his moral failure 
 being due to indifference in contracting finan- 
 cial obligations which he was unable to dis- 
 charge. Upon reconsideration, the board 
 reported : 
 
 "The board respectfully adheres to its 
 original decision, and in doing so respectfully 
 invites attention to the fact that the deficiency 
 found in moral qualifications was not the faihu'e 
 of Lieut. Osborne to pay the debt owed Mr. 
 W. E. Rouse as such, but his failure to keep his 
 written promise to pay in a certain time and 
 method, his failure to show any practical reason 
 for such neglect of his promise, and his failure 
 to meet his obligations in the sense of making 
 any arrangement with his creditor after the 
 matter had been brought to his attention by the 
 department. In the opinion of the board such 
 absolute neglect and indifference to his obliga- 
 tions and to his promise show a standard of 
 morals below that which should be required of 
 naval officers." Finding approved by the 
 President, July 3, 1908. 
 
 (i) Boatswain Alfred H. Hewson, examined 
 May 3, 1909. Board found: "That Boatswain 
 Alfred H. Hewson, United States Na^^yr, j^as 
 the mental, but not the moral nor the pro- 
 fessional qualifications, to perform efficiently 
 all the duties, both at sea and on shore, of the 
 grade to which he is to be promoted, and do not 
 recommend him for promotion." The Acting 
 Secretaiy of the Navy, May 17, 1909, recom- 
 mended approval of the board's finding, 
 stating as follows: "Upon reviewing the case 
 it appears that Mr. Hewson has been habitually 
 intemperate and that he has shown a lack of 
 proper officer-like appreciation in his methods 
 of dealing with his financial affairs. " Finding 
 approved by the President. 
 
 {)) Gunner Edmund DuB. Gould, examined 
 April 4. 1908. Found mentally but not pro- 
 fessionally qualified, and from the unfavorable 
 evidence before it the boai'd was not satisfied 
 a3 to his moral fitness and did not recommend 
 him for promotion. Upon a second appearance 
 before an examining board it was found that he 
 had the mental, but not the moral and pro- 
 fessional qualifications, by reason of his failure 
 to pay his debts, and not making the percentage 
 necessary to qualify, and he was not recom- 
 mended for promotion. The Secretary of the 
 Navy recommended approval of the board's 
 finding, stating in part: "From a review of the 
 record of proceedings of the Naval Examining 
 Board, it would appear that this officer has 
 persistently neglected to pay his deists, that 
 he has failed to reply to communications ad- 
 dressed to him officially upon these matters, 
 and that he has failed to make any satisfactoiy 
 explanation or excuse for his delinquencies in 
 the above particulars." The boai'd's finding 
 was approved by the President. 
 
 {Tc) Passed Asst. Paymaster Edwin B. Web- 
 ster, examined Januaiy 6, 1898. The board 
 reported as follows: 
 
 " The board decided that Passed Asst. Pay- 
 master Edwin B . Webster, United States Na\y, 
 has the mental and professional, but not the 
 moral qualifications, by reason of the facts 
 mentioned in the charges formulated by the 
 board from the record, which are a result of his 
 own misconduct, to perform efficiently all his 
 duties, both at sea and on shore, of the grade to 
 which he is to be promoted, and do not recom- 
 mend him for promotion. " 
 
 The charges formulated by the board were 
 as follows: "First. Habits of gambling, as in- 
 dicated l)y the letter of F. L. Crompton, of 
 Shanghai, China, dated July 26, 1897. Sec- 
 ond. Carelessness in the settlement of debts, 
 as indicated by the correspondence between 
 the candidate and his creditors, and the Navy 
 Department. Third. Transactions of the can-' 
 didate chai'acterized as 'disgraceful,' and 
 'scajadalous' by the Secretary of the Na\y, and 
 published in General Court-Martial Order No. 
 76, dated July 28, 1896." The finding of the 
 board was approved by the President. 
 
 (l) Commander George W. Wood, examined 
 June 29, 1893. Board reported: "By reason 
 of the facts adduced by the eAddence as to his 
 habits of drunkenness, and the contracting of 
 debts beyond his means, and neglect of cred- 
 itors, since his last promotion, we find that 
 Commander Wood is morally unfit for promo- 
 tion to the next higher grade * * * We 
 hereby certify that Commander George W.Wood, 
 United States Navy, has the mental, but not 
 the moral and professional qualifications, to 
 perform efficiently all thff duties, both at sea 
 and on shore, of the next higher grade, and do 
 not recommend him for promotion. " Board's 
 finding approved. 
 
 {m) In a case more recent than those noted 
 above the candidate was found not morally 
 qualified for promotion, the board in its report 
 June 21, 1911, stating in part: 
 
 "After duly deliberating on all the matters 
 herein referred to, the board believes that the 
 candidate did not use his utmost exertions 
 toward liquidating his debts as quickly as 
 possible, but that from the contraction of the 
 ffi'st debts to the payment of the last one, June 
 14, 1911, he has sho\\Ti a degree of moral tur- 
 pitude which unfits him for promotion." 
 
 The Secretary of the Navy recommended 
 approval of the boai'd's finding. President 
 Taft's decision in the case was as follows: 
 
 "I am not satisfied from the showing made 
 that Lieutenant Burt's character has been 
 shown to be such as to unfit him morally for 
 promotion. Of course, the failure to pay 
 debts and the cu'cumstances under which the 
 debts were contracted, when their payment is 
 postponed or neglected, may constitute con- 
 duct unbecoming an officer. But here the 
 debts have been paid; and thej^ were not so 
 great in amount or so many as to indicate utter 
 recklessness when it is considered that Lieu- 
 tenant Burt is a married man and, neces- 
 sarily, had the expense of a family upon him 
 in addition to that attendant upon his sea 
 service; I am bound to say that the specifica- 
 tions which were handed to me as to the im- 
 
 717 
 
Sec. 1496. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 morality involved iu his relation to debts 
 eeom to be, many of them, strained, and I 
 can not think that it is just to eliminate him 
 from the naval service for such delinqucncv. " 
 (File 26260-1392:15, Jan. 2, 1912.) 
 
 In connection with moral qualifications, see 
 also note to section 1456, Revised Statutes. 
 
 PROFESSIONAL QUALIFICATIONS. 
 
 {n) Machinist Martin M. Schreiber, exam- 
 ined May 17, 1909; found morally and profes- 
 sionally but not mentally qualified for promo- 
 tion. The record in tliis case was retm-ned to 
 the boai'd with the following remarks: 
 
 "The board is directed to reconsider this 
 record, keeping in mind the fact that the educa- 
 tional qualifications of the candidate should be 
 considered under the head of the professional 
 qualifications, and that after considering his 
 professional and educational qualifications to- 
 gether, they will report as to whether or not he is 
 professionally qualified. " (File 26260-438.) 
 
 On revision the board found the candidate 
 morally qualified, "but because of the chai'acter 
 of his answers to the wiitten examination, and 
 the lack of knowledge shown throughout his 
 paper, that hia mental and professional fitness 
 is not estal>lished, this despite the candidate's 
 excellent reports of fitness." Finding ap- 
 proved by the President. 
 
 (o) Boatswain Edward Allen, examined 
 October 28, 1908; found morally and profession- 
 ally but not mentally qualified, owing to his 
 lack of knowledge of the English language, 
 orthography, punctuation, etc., and because a 
 perusal of his papers shows a marked degree of 
 illiteracy. The record was returned to the 
 board with the following remarks: 
 
 "After careful consideration of the matter 
 the record of proceedings is retmiied to the 
 boiird with the information that the department 
 regards the above-mentioned disqualifications as 
 constituting part of the professional examina- 
 tion, and not as exhibiting mental deficiency." 
 
 On revision the board found the candidate 
 morally and mentally, but not professionally, 
 qualified. Finding approved by the President. 
 
 Consideration by board of court-martial 
 proceedings. — As early as 1897 the specific 
 question [right of examining board to consider 
 court-martial proceedings against candidate] 
 was raised and decided by the department. 
 In that case an examining board treated "as 
 closed " certain matters brought to its atten- 
 tion for wiiich the candidate had been tried by 
 court-martial. The decision in that case em- 
 bodied the following statement: "The fact 
 that a case has been finally acted upon by 
 the liighest authority, or that no action what- 
 ever has been taken, does not close that por- 
 tion of the officer's record to wliich it relates 
 in such a manner as to relieve an examining 
 board from the responsibility of scrutinizing it. 
 Wliere an officer's record is found not good, it 
 seems * * * then to become the espe- 
 cial duty of the board to make a thorough and 
 exhaustive examination." (File 5878-97.) 
 The same question has been judicially decided 
 in accordance with the Navy Department's 
 precedents and practice, ^^'ith reference to 
 the authority of an examining board to 
 
 consider the proceedings of a court-martial 
 and other facts shown by the officer's record 
 bearing upon his moral fitness for promotion, 
 the court iu the case of Davis v. United States 
 (24 Ct. (Jls., 442) said: "The board was 
 charged with the duty of examining into hia 
 mental, moral, and professional qualifications 
 for advancement. WhaA better evidence 
 could it have of these qualifications than the 
 candidate's actual career in his then grade? 
 It was natural and proper for the board to 
 look into his record. If a good officer he 
 would proudly rely upon it and demand its 
 examination as a right." In 1911 the question 
 was again considered by the department (file 
 26260-1392, 26260-697, June 29, 1911, p. 17), 
 and it was held: "The question of an officer's 
 amenability to trial by court-martial for 
 acts affecting his moral fitness can not * * * 
 have any bearing upon the question now under 
 consideration. For should the officer be so 
 tried and convicted, or even acquitted, by 
 court-martial, an examining board would still 
 have the duty cast upon it by express provi- 
 sions of law, of examining iuXa the facts and 
 outcome of such trial, in order to determine 
 for itself the effect, if any, that should be given 
 thereto with reference to the officer's qualifi- 
 cations for promotion in the Navy." Accord- 
 ingly, when an officer is examined for promo- 
 tion, all papers relating to his service since the 
 last examination whereby he was promoted, in- 
 cluding the complete record of the officer's 
 trial by court-martial, where he has been so 
 tried, are sent to the examining board by the 
 department, and it is the duty of the board to 
 review all the papers so furnished and deter- 
 mine whether or not in the members' own 
 minds the ofiicer has the mental, moril, and 
 professional qualifications for promotion to 
 the next higher grade In a case v/here the 
 officer has been tried by court-martial, were 
 the examining board bound by the result at 
 which the court had arrived, it would be unnec- 
 essary to forward the entire record of the trial, as 
 merely the findings of the court would be suf- 
 ficient. But the law specifically empowers 
 the examining board "to examine into all 
 matters on the files and records of the Navy 
 Department" relating to the service of 
 the officer since the last examination whereby 
 he was promoted (sec. 1499, R. S., as amended), 
 and requires that the whole record and finding 
 of the board, together with "any matter on the 
 files and records of the Navy Department, 
 toucMng each case," shall be presented to the 
 President for his approval or disapproval of 
 the finding (sec. 1502, R. S.). It follows 
 that, regardless of the finding which may have 
 been reached by a court-martial, the entire 
 record and all evidence which it contains, 
 concerning the service of the candidate since 
 the last examination whereby he was promoted, 
 must be considered by the board, and that 
 no member is justified in recommending the 
 candidate's promotion unless, in his own 
 opinion, the officer is qualified therefor. (File 
 26260-3342 : 1, Mar. 27, 1916.) 
 
 It is the province of the board to find the 
 candidate either morally qualified or not mor- 
 ally qualified for promotion; the board's find- 
 ing must, however, under the law, express the 
 
 Y18 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1496. 
 
 opinion which the members themselves enter- 
 tain, and a finding which states that the candi- 
 date is morally qualified for promotion, not 
 because the board so believes but because the 
 board feels itself bound by the opinion which 
 it attributes to others, is in law no finding at 
 all. (File 26260-3342 : 1, Apr. 7, 1916.) 
 
 In its first action in this case the board stated 
 in effect that "no matter what its personal 
 feelings may be," it found the candidate mor- 
 ally qualified for promotion because the mem- 
 bers of a court-martial had acquitted him of the 
 serious offenses with which he had been charged , 
 and the board "has not the power to ques- 
 tion the findings of said board." The depart- 
 ment returned the record, instructing the 
 board that no "member is justified in recom- 
 mending the candidate's promotion unless, in 
 his own opinion, the officer is qualified there- 
 for;" that the Navy Regulations specifically 
 pro^dde that "it shall be held obligatory upon 
 any member of the board to decline to recom- 
 mend the promotion of an officer until he is 
 satisfied of the officer's entire mental, moral, 
 and professional fitness for promotion"; that 
 the so-called acquittal of the court-martial in 
 tliis case had been disapproved and thereby 
 set aside and nullified by the convening author- 
 ity; and that the board has not only the "pow- 
 er " but the duty of making a full examination 
 of the facts in the case and determining for 
 itself whether the matters disclosed by the 
 record render the candidate qualified, or not 
 qualified, for promotion." The board disre- 
 garded the above instructions and in its re- 
 \-ised finding stated: "The members of tliis 
 board, who are subordinate in rank to the court 
 who acquitted tliis candidate, feel from their 
 training and association with commissioned 
 officers, that the members of the court must 
 have been influenced by extenuating cir- 
 cumstances as well as by the testimony that 
 appears in the record of the court * * *. 
 The board is of the opinion that the court- 
 martial board, being commissioned officers of 
 high rank under oath, upon their honor, ac- 
 quitted the candidate, and in \dew of the above 
 accepts the findings of the court." The court 
 here makes the same error as previously. The 
 department expects, and the law contem- 
 plates, that the members of an examining 
 board shall be competent to judge for them- 
 selves whether a candidate is qualified for 
 promotion, and to assume the responsibility 
 placed upon them by law of so doing. It 
 would be useless to convene such boards if 
 they are merely to reflect the opinion which 
 they think has been entertained by others. 
 The board is required to make an independent 
 investigation of the evidence before it, in order 
 to determine the candidate's fitness for promo- 
 tion, and if the evidence before the board is not 
 sufficient, the board is by law given authority 
 to obtain additional evidence. Tlie board 
 should know that the members of a court-mar- 
 tial are sworn to try each case before them 
 "according to the evidence which shall come 
 before the court," and could not lawfully 
 make a decision based upon circumstances not 
 appearing in the record. Also that courts-mar- 
 tial can not make a finding of guilty unless the 
 evidence establishes the guilt of the accused 
 
 beyond a reasonable doubt, while on the other 
 hand, members of an examining board are not 
 required to be satisfied beyond a reasonable 
 doubt that a candidate is not qualified for pro- 
 motion, but instead are forbidden to recom- 
 mend any officer for promotion "as to whose 
 fitness a doubt exists. ' ' In other words, before 
 a court-martial every doubt must be resolved 
 in favor of the accused, while before an examin- 
 ing board such doubts, if any, must be resolved 
 against the candidate, and the existence even 
 of a doubt as to his fitness requires that he be 
 not recommended for promotion. For this 
 reason the finding of a court-martial, even if 
 approved, would not be conclusive upon an 
 examining board. (File 26260-3342 : 1, Apr. 
 7, 1916.) 
 
 The matter of determining an officer's moral 
 fitness for promotion is not analogous to the 
 question of determining whether he should be 
 brought to trial by court-martial for alleged 
 offenses. On the contrary, an examing board 
 is required to report the opinion of its indi^ddual 
 members concerning the fitness of a candidate 
 for promotion, regardless of whether unfavor- 
 able matters upon the candidate's record have 
 been acted upon by a comt-martial or not, and 
 regardless of the finding reached by the court- 
 martial if one has been convened. (File 
 26260-3628:1, Aug. 25, 1916.) 
 
 Consideration of misconduct by candi- 
 date which is not within the reach of a 
 court-martial. — Msconduct in private life 
 may be the subject of trial by court-maitial and 
 the department endeavors to take appropriate 
 disciplinary action whenever such cases are 
 brought to its attention. However under ordi- 
 nary circumstances the domestic relations of an 
 officer, unless there has been misconduct on his 
 part reflecting discreditably on the naval serv- 
 ice and justif>-ing a recourse to disciplinary 
 proceedings under the Articles for the Govern- 
 ment of the Navj', are not regarded as matters 
 falling within the jurisdiction of the Na-vy 
 Department, but are properly under the juris- 
 diction of ci^-il couj'ts. Instances, however, 
 may aiise where misconduct in pri^'ate life 
 would not be within the reach of law or discip- 
 line to the extent of court-martial proceedings. 
 Such matters are nevertheless subject to inves- 
 tigation by an examining board in determining 
 an officer's fitness for promotion, where they 
 have occurred since the last examination 
 whereby he was promoted or where they have 
 not previously been inquired into and decided 
 upon, or where they constitute a " fact continu- 
 ing" affecting his present fitness for promo- 
 tion. (File 26521-179, Feb. 19, 1917.) 
 
 Consideration of matters under investi- 
 gation by civil courts. — The members of an 
 examining board are forbidden to recommend 
 any officer for promotion "as to whose fitness a 
 doiibt exists." The board has the duty devolved 
 upon it of making a thorough investigation into 
 the matters which are the subject of correspond- 
 ence referred to it by the department, exam- 
 ining witnesses with reference thereto if neces- 
 sary, and of determining as the result of such 
 investigation, together with any other matter.-? 
 of an unfavorable character which may be upo". 
 the candidate's record, whether or not the can- 
 didate is morally qualified for promotion; and 
 
 719 
 
Sec, 1496. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 the board is not anthnrizod to delay its pro- 
 cecKliugs pending a dotei'niination of litigation 
 in the civil courts invoking the relations be- 
 tAVoeu the candidate and his wife. It is pos- 
 eilde that a final adjudication upon the merits 
 of the controversy may never be reached in the 
 civil proceedings, and even if it were this 
 Would not relieve the board of its duty to make 
 an independent in\-estigation of the matters at 
 issue in so far as they may affect the moral fit- 
 ness of the candidate for promotion, (l^'ile 
 26260-3628:1. Aug. 25, 1916.) 
 
 Duty of board to -weigh evidence without 
 requesting department's instructions. — 
 " With regard to tlie request contained in your 
 letter above-mentioned, that the board be in- 
 structed as to whether or not it should consider 
 the report of the court of inquirj- referred to, 
 the report of Paymaster Allen, dated Novem- 
 ber 22. 1888, and the action of the department 
 relative thereto, as a final disposition of the 
 matters, you are informed that it is for the 
 board to examine and determine as to whether 
 or not these reports have been finally acted 
 upon by the department; if acted upon, what 
 weight should be given to the department's 
 action; and if not acted upon, what weight 
 should be given to them in the absence of such 
 action bv the department." CFile 1966-93, 
 May 16, 1893.) 
 
 "The determination of the question of the 
 fitness of an officer for promotion is vested by 
 law in the examining board and in the Presi- 
 dent, and it is the duty of the examining boai'd 
 unembaiTassed by instructions from this de- 
 partment, to give such consideration to all 
 facts occurring since the examination of the 
 candidate for his last promotion as well as to all 
 such as appear upon the file and records of the 
 department, as will enable it to reach a just 
 conclusion." (File 1966-93, May 16, 1893.) 
 
 An examining board having been duly ap- 
 pointed and organized in pursuance of law, it 
 becomes its duty, in accordance with the re- 
 quii'ements of section 1496 of the Revised 
 Statutes, to ascertain and report upon the 
 mental, moral, and professional fitness of the 
 candidate for promotion. As sections 1499 
 and 1502 of the Revised Statutes empower the 
 board to examine any matter on the files and 
 records of the Na\'y Department touching each 
 case which may in the opinion of the board be 
 necessary to assist it in making up its judgment 
 relative to the case of any officer under consid- 
 eration, and it being understood that all such 
 matters upon the files and records of the de- 
 partment are placed at the disposal of the 
 board, it is deemed proper that the board 
 should ]>e left to the performance of its duties 
 untrammeled by instructions from the depart- 
 ment. (File 1966-93, May 16, 1893.) 
 
 Burden of proof. — The following is quoted 
 from "General Instructions" formulated by the 
 Secretary of the Navy on December 14, 1894, 
 concerning proof of moral fitness, as a result of 
 questions presented in the case of Lieut. Com- 
 mander Frederick W. Crocker (see also file 
 26260-1392, June 29, 1911): 
 
 "6. The lieutenant commander whose case ia 
 now being considered, having arrived at the 
 point where he is entitled to promotion to the 
 next higher grade, under conditions fixed by the 
 
 statute, stands in the position of an applicant 
 for an a))puiulnient. lie is no longer to be a 
 lieutenant commander, but is an ajtplicant for 
 appointment to the position of a commander in 
 the Navy of the United States, an office of great 
 responsibility. He is to be appointed by the 
 President and confirmed by the Senate, pro- 
 vided heiscompetentand worthy. Theburden 
 of proof is upon him to show that he complies 
 with these conditions. He is the actor in these 
 proceedings, which are instituted simply to 
 ascertain the facts upon which the President 
 shall act in sending his name to the Senate, and 
 by which that body is to be guided in confinn- 
 ing or refusing to confinn him. 
 
 "7. Any reasonable doubt that may arise out 
 of the evidence offered is, in all cases of this 
 kind, to be resolved in favor of the Government 
 and against the applicant. Should the appli- 
 cant fail of appointment under these rules, the 
 law directs that he is to be discharged from the 
 service, unless circumstances exist which 
 authorize his retirement. If the refusal to 
 appoint were intended as a punishment, the 
 law would not contemplate payment of a year's 
 or any other salary on his discharge. Such 
 discharge simply means that the Government 
 no longer needs the applicant's services. 
 
 "8. It follows, therefore, from the nature of 
 these proceedings, that the statutes of limita- 
 tion, quoted by counsel, have no application 
 whatever. Everything that has occurred dur- 
 ing the applicant's term of office as lieutenant 
 commander, or at any other time, inquiry into 
 which is not prohibited by the law and regula- 
 tions [see sec. 1499, R. S., as amended], may be 
 adduced for the purpose of showing that he is 
 not competent, or, if competent, is not worthy 
 of the appointment to the office of commander 
 which he now seeks. It can not be contended 
 that because the Government has not instituted 
 proceedings by court-martial it has, therefore, 
 been negligent in the matter of defending itself 
 against a claim of a candidate to serve it, and 
 is, by reason of its own neglect, compelled to 
 appoint an unworthy or incompetent person to 
 office. The Government has a right, when an 
 inquiry of this nature is instituted, to satisfy 
 itself of the fitness of the candidate for promo- 
 tion, to introduce in evidence records made in 
 accordance with the regulations lawfully pre- 
 scribed by the Secretary of the Navy, and any 
 other testimony that may be necessary to sat- 
 isfy itself of the fitness or unfitness of candidates 
 for office. 
 
 "9. The department has, however, decided 
 that the members of an examining board should 
 reach their conclusions respecting the mental 
 and moral qualifications of the candidate upon 
 the evidence of record only^ independently of 
 any personal knowledge which they may have 
 on the subject. Any facts within the personal 
 knowledge of members of the board, important 
 to be considered, should be made matter of 
 record and the candidate given an opportunity 
 to meet them. Paragraph 8, article 1715, 
 United States Navy Regulations, is accordingly 
 amended so as to read as follows: 
 
 " 'The onus of establishing professional fit- 
 ness shall be held to rest entirely upon the 
 officer under examination. The mental and 
 moral fitness of the candidate shall be assumed 
 
 720 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1497. 
 
 unless a doubt shall be raised on either head in 
 the mind of any member of the board, from the 
 answers contained in any of the interrogatories 
 or reports on fitness, from the general reputation 
 of the candidate, or from other sources of evi- 
 dence of record. It shall be held obligatory 
 upon any member of the board to decline to 
 recommend the promotion of an officer until he 
 be satisfied of the officer's entire mental, moral, 
 and profossionul fitness for promotion. The 
 board, while careful not to do injustice to an 
 officer regarding whom there is any doubt, 
 shall take equal care to safeguard the honor and 
 dignity of the service, recommending no officer 
 for promotion as to whose fitness a doubt ex- 
 exists. ' ' ' (This regulation is now embodied in 
 Naval Courts and Boards, 1917, sees. 620, 643.) 
 
 Finding of majority of board governs. — 
 The board may find an oflicer qualified for 
 promotion by a majority, and one member (a 
 minority) may find him not so qualified, and 
 such a majority finding, when approved, is 
 valid. (File 26260-1244, Apr. 14, 1911.) 
 
 In case of dissent the record must show those 
 of the members who concurred in, and those 
 who dissented from, the opinion of the board, 
 with the reasons for dissent. (Sec. 650, Naval 
 Courts and Boards.) 
 
 This section not applicable to temporary 
 promotions. — Sections 1493 and 1496, Revised 
 Statutes, clearly relate to promotions in the 
 permanent Na\'\'. The act of May 22, 1917 
 (40 Stat., 84), authorizes temporary promotions 
 to all grades in the Navy above the lowest 
 grades, and provides (sec. 8) that all temporary 
 promotions ' " shall continue in force until other- 
 wise directed by the President * * *. " 
 Said act however makes no express provision 
 as to the manner in which such temporary 
 promotions shall be made. On the other hand, 
 said act in several places refers to existing law 
 with reference to permanent promotions. The 
 fact that the act of May 22, 1917, makes repeated 
 references to the "permanent" Navy or Marine 
 Corps, that it also makes repeated references to 
 existing law in connection vriih permanent 
 promotions, that it says nothing about existing 
 
 law with reference to temporary promotions, 
 and that it expressly makes such temporary 
 promotions revocable by the President at any 
 time, leads irresistibly to the conclusion that 
 the pro\dsions of existing law with reference to 
 promotions in the permanent Navy are not 
 controlling as to the temporary promotions 
 provided for in said act, but that such tempo- 
 rary promotions may be made diuing the war in 
 accordance with such rules and regulations as 
 the President may prescribe. Accordingly 
 held, that an officer before being temporarily 
 promoted is not required by law to pass any 
 examination either as to his mental, moral, 
 professional, or physical qualifications; but that 
 it is within the discretion of the President to 
 determine what examinations if any prelimin- 
 ary to temporary promotions are advisable for 
 the proper protection of the interests of the 
 Government. (File 28687-22, June 14, 1917, 
 citing Taylor v. U. S., 38 Ct. Cls., 155, noted 
 under sec. 1370, R. S. Compare 25 Op. Atty. 
 Gen., 341, noted under sec. 1370, R. S., "Ap- 
 plication of statutory requirements to appoint- 
 ments under subsequent laws. " See also 31 
 Op. Atty. Gen., 173, as to provisional advance- 
 ments in rank in the Naval Reserve Force.) 
 
 The act of May 22, 1917 (40 Stat., 84), clearly 
 indicates that it did not contemplate the pass- 
 ing of statutory examinations prior to tem- 
 porary promotions authorized therein, for it 
 expressly requires examination of all officers 
 prior to permanent promotion, notwithstanding 
 that they have in the meantime been tem- 
 porarily promoted to higher grades; and it 
 would be an absurdity in the case, for example, 
 of an officer holding a permanent commission 
 as lieutenant and temporarily promoted during 
 the war to the grades of lieutenant commander 
 and commander, and who had been required to 
 pass the statutory examinations prior to such 
 temporary promotions, to require him there- 
 after to pass the prescril^ed examinations for 
 permanent promotion to the grade of lieutenant 
 commander when he became due for such 
 permanent promotion. (File 28687-22, June 
 14, 1917.) 
 
 Sec. 1497. [Promotion to rear admiral in time of peace. Superseded.] 
 
 This section provided as follows: 
 
 "Sec. 1497. In time of peace no person shall 
 be promoted from the list of commodores to the 
 grade of rear-admiral, on the active list, until 
 his mental, moral, and professional fitness to 
 perform all his duties at sea has been established 
 as provided in the preceding section." — (16 
 Julv, 1862, c. 183, s. 7, v. 12, p. .584. Amended 
 by 21 April, 1864, c. 63, v. 13, p. 53.) 
 
 It was superseded by the act of March 3, 
 1899. section 7 (30 Stat., 1005), which abolished 
 the grade of commodore on the active list of the 
 Nav>- (see note to sec. 1362, R. S.). Thereafter 
 promotions to the grade of rear admiral were 
 made by seniority from the grade of captain (see 
 sec. 1458, il. S.), subject to the examinations 
 required by sections 1493 and 1496, Re\ised 
 Statutes. New provisions for promotion to the 
 grade of rear admiral, by selection from the 
 grade of captain, were contained in the act of 
 August 20. 1916 (39 Stat., 578), which said act 
 further pro\dded (39 Stat., 579), that officers 
 selected for promotion thereunder " shall prior 
 
 to promotion be subject in all respects to the ex- 
 aminations prescribed by law for officers pro- 
 moted by seniority. " 
 
 Selection of rear admirals during war was 
 provided for by section 1365, Re-\'ised Statutes. 
 
 Selection by the President of officers to 
 command squadrons with the rank and title 
 of " flag-officer " is provided for by sections 1434, 
 1463, and 1464, Revised Statutes. The act of 
 May 22, 1917 (40 Stat., 89), provided that said 
 sections of the Revised Statutes were not to be 
 construed as amended or repealed by the pro- 
 visions of that act authorizing the designation 
 of officers to command fleets and subdivisions 
 thereof with the rank of admiral and vice admi- 
 ral while so serving. The act last cited further 
 pro\dded that in time of war selections under 
 the provisions thereof were to be made from the 
 grades of rear admiral or captain on the active 
 list, and in time of peace from among the rear 
 admirals on the active list. The rank of " flag- 
 officer" under section l-i34. Revised Statutes, 
 is now rear admiral (see note to said section). 
 
 721 
 
Sec. 1499. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Sec. 1498. [Examining boards.] Such examining hoard shall consist of not 
 less than three olhcers, senior in rank to the officer to be examined. — (21 April, 
 18G4, c. 63, s. 2, v. 13, p. 53.) 
 
 Provisions of this section held manda- 
 tory. — ^^'he^e a naval examining board con- 
 aisted of three ofiicers. oneof wliom was not senior 
 in rank to the oUicor to be examined, held iha.t 
 the proceedings of said board should be disap- 
 
 proved aa fatally defective. The law being 
 mandatory in its tenns, all the members of the 
 board must ])e senior to the officer imder exam- 
 ination before them. (File 2G260-1244, Apr. 14, 
 1911.) 
 
 Sec. 1499. [Powers of.] Said board shall have power to take testimony 
 and to examine all matter on the files and records of the Navy Department 
 relating to any officer whose case may be considered by them. The mtnesses, 
 when present, shall be sworn by the president of the board. — (21 April, 1864, 
 c. 63, s. 1, V. 13, p. 53.) 
 
 Amendment to this section was made by act of 
 June 18, 1878 (20 Stat., 1G5), which pro- 
 vided "that hereafter in the examination 
 of officers in the Na\^ for promotion no fact 
 which occiured prior to the last examina- 
 tion of the candidate whereby he was pro- 
 moted, which has been enqiiired into and 
 decided upon, shall be again enquired into, 
 but such previous examination, if ap- 
 proved, shall be conclusive, unless such 
 fact continuing shows the unfitness of the 
 officer to perform all his duties at sea." 
 
 Refusal of Navy Department to furnish 
 board with records prior to last examina- 
 tion of candidate. — As has been judicially 
 stated (Da^is v. U. S., 24 Ct. Cls., 442), the 
 above section of the Revised Statutes "opened 
 up the whole past life of an applicant for pro- 
 motion, and made him liable at each step in 
 his career to a fi-esh investigation, long after the 
 event, of charges before ' enquired into and 
 decided upon.' To remedy any injustice this 
 may have caused, probaljly, the statute of June 
 18, 1878, was passed. This sfcitute places a bar 
 in the way of a new examination into old accu- 
 sations or facts, and starts the officer in his 
 higher grade with a clean record, unless the 
 fact be a continuing one, showing the candi- 
 date's imfitness to 'perfonn all his duties at 
 sea.' " Again, in the same case (Davis v. U. S., 
 24 Ct. Cls., 445), it was stated: "The limit 
 placed by Congress upon the scope of inquirj' 
 was that past issues, old charges, once enquired 
 into by competent authority, decided upon and 
 the decision approved, should not be reopened. 
 When promoted to the gi'ade of pay inspector 
 Davis's record as paymaster had been investi- 
 gated by an examming board and passed upon. 
 The finding had been approved. The statute 
 holds that decision to be final; it closes forever, 
 so far as examining boards are concerned, one 
 period of the officer's professional career, imless 
 a 'fact continuing shows the unfitness of the 
 officer to perfomi all his duties at sea.' " The 
 record of the candidate in this case prior to his 
 last promotion does not contain any matter 
 which the board is authorized to inquii'e into 
 by the act of June 18, 1878, and the Navy Regu- 
 lations, consequently the department does not 
 deem it advisable to furnish such record to the 
 board as requested by the president thereof. 
 (File 26521-173, Jan. 25. 1917.) 
 
 Upon the examination of officers for promo- 
 tion the law in explicit language prohibits 
 inquiry into any fact which occurred prior to 
 the last examination whereby the candidate 
 was promoted, which has already been inquired 
 into and decided upon, and specifically pro- 
 vides that "such previous examination, if 
 approved, shall be conclusive." Only one 
 exception to this mandatory rule is contained 
 in the statute, and that is where the "fact con- 
 tinuing shows the unfitness of the officer to 
 perform all his duties at sea." The record of 
 the candidate in this case prior to his last 
 examination is entirely clear of all offenses of 
 the character mentioned by the board, and 
 therefore does not contain any matters into 
 which the board is authorized by law to inquire, 
 and for this reason it is held that the depart- 
 ment has not the right to furnish the same to 
 the board in response to its request. Such 
 action would produce a de\'iation from the 
 statutory provisions, and the precedent thus 
 established might some time in the future 
 result in the proceedings of a naval examining 
 board being set aside and annulled as fatally 
 irregular and defective. (File 26521-173:1, 
 Feb. 1, 1917.) 
 
 For other cases, see note to section 1496, 
 Re\T.sed Statutes, under •" Consideration by 
 board of court-martial proceedings." 
 
 Records submitted to Board on Selec- 
 tion for Promotion. — The act of August 29, 
 1916 (39 Stat., 578, 579), relating to the selection 
 of officers for promotion, provides that the 
 selection board shall be furnished by the Secre- 
 tary of the Navy "with the record of each offi- 
 cer." Under this law the board must be fm- 
 nished with the entire record of the officer 
 since his appointment to the Navy-, and not 
 merely the record of the officer in his existing 
 grade. The act of June 18, 1878, modif\ing 
 section 1496, Revised Statutes, is inapplicable 
 to the selection board, whose examination of 
 the entire record would seem to be almost 
 essential to determine comparative fitness. 
 The act of June 18, 1878, can still have effective 
 operation with reference to the promotion of 
 officers to gi-ades below commander, and also 
 with reference to the promotion of officers to 
 the grades of commander, captain, and rear 
 admiral, as the act of August 29, 1916, continues 
 in force the proAdsions of the Revised Statutes 
 relating to the promotion board, as supplemen- 
 
 722 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1500. 
 
 tary to selection in the latter cases, by the pro- 
 vision "that any officers so selected shall prior 
 to promotion, be subject in all respects to the 
 examinations prescribed by law for officers pro- 
 moted by seniority." (31 Op. Atty. Gen., 87, 
 concmTing in opinion of the Judge Advocate 
 General, Nov. 28, 1916, file 26521-169, which 
 overruled the opinion of the Acting Judge Ad- 
 vocate General of Nov. 14, 1916, file 26521-169). 
 Counsel for examining board. — A letter 
 having been received by an examining board 
 signed as coimsel for a candidate for promotion 
 the board requested that some person con- 
 versant with the law be detailed to attend the 
 sittings of the board and act as their adviser in 
 matters of law and procedure. The department 
 accordingly designated to advise the board in 
 matters of law and procedure an officer attached 
 to the Judge Advocate General's office who had 
 
 been assigned when occasion requu'ed to the 
 duty of conducting comls of inquhy and comts- 
 martial. This action was taken in accordance 
 with the precedent established some 12 years 
 l^efore when the same candidate was examined 
 for promotion to his present gi'ade (pay inspec- 
 tor). On that occasion gi-ave matters affecting 
 his fitness were upon record and the first navsu 
 examining board which examined him found 
 him neither morally nor professionally quali- 
 fied for promotion. Col. Kobert G. Ingersoll 
 appeared as his counsel before that board and 
 Assistant Attorney General Simons was assigned 
 to the duty of assisting the board during the 
 examination. (Memo. Sec. Navy, Mar. 7, 1893, 
 in relation to the examination of Pay Insp. 
 John H. Stevenson for promotion to pay direc- 
 tor.) 
 
 Sec. 1500. [Officer may be present and make statement.] Any officer whose 
 case is to be acted upon by such examining board shall have the right to be 
 Present, if he so desires, and to submit a statement of his case on oath. — (21 
 April, 1864, c. 63, s. 3, v. 13, p. 53.) 
 
 Provisions of this section held manda- 
 tory. — Every officer of the Na\y whose eligi- 
 bility to promotion is to be acted upon by an 
 examining board under the proAisiona of sec- 
 tions 1496, 1498-1505, Re^^.sed Statutes, has the 
 right to be present at his examination. He 
 must be duly notified of the time and place of 
 his examination, and unless he waives his right 
 or expresses a lack of desire to be present, he 
 must be given lea^'e of absence or permission to 
 attend. No finding of the board adverse to his 
 qualifications for promotion can be made wdth- 
 out a personal examination of such officer unless 
 he fails to appear after haAing been dulv noti- 
 fied to do so (sec. 1503, R. S.). Held, tliat the 
 proceedings and findings of the naval examin- 
 ing board in this case are fatally irregular and 
 defective in that (1) said officer, being at the 
 time in the discharge of hia duty on shipboard, 
 and under orders of his superior officer, was not 
 notified of the time and place of his examination 
 for promotion, and was not given and did not 
 have an opportunity or permission to exercise 
 his right to appear and be heard at such exami- 
 nation; and (2) said board of examiners rejected 
 said officer and his application for promotion 
 \\ithout any examination of himself, although 
 he had not failed, "after ha\ing been duly 
 notified, to appear before said board." (27 Op. 
 Atty. Gen., 251.) 
 
 Waiver of right to appear must be 
 affirmative. — From the provisions of sections 
 1500 et seq . , it is apparent that in every case the 
 officer whose case is to be acted upon has the 
 right to appear and to be heard. The declara- 
 tion of this right to be present carries Avith it a 
 command to those ha\ing control of his person 
 to relieve him from restraint and permit him to 
 exercise the right thus conferred. An officer on 
 duty can not leave \vithout orders or permission ; 
 it is therefore the manifest duty of the proper 
 officers to give to the candidate timely notice 
 of the time when and place where the board 
 ■\\ill meet to consider his case, and to give him 
 also leave of absence and permission to attend; 
 
 or to ascertain from him that he did not desii'e 
 to be present. Without this the officer is 
 effectually deprived of the right secured to him 
 by the statute. The right to be present may be 
 waived; but in order to do this some affirmative 
 act of waiA'er is necessary and it is not inferred 
 from the fact that the officer continues in the 
 performance of the duty to which he has 
 been ordered nor is this any expression of a 
 lack of desire to be present at his exami- 
 nation. (27 Op. Atty. Gen., 251.) 
 
 Correction of action taken where officer 
 not accorded the right to be present. — 
 In this case the officer appeared before the 
 board, but the examination was temporarily 
 suspended and he was granted permission to go 
 home and to be absent until notified by the 
 board to appear. lie failed to receive this 
 notice imtil after the examination, which was 
 resumed during his absence, had been com- 
 pleted. The proceedings and findings of the 
 board were approved by the President and his 
 orders in the case duly executed by the retire- 
 ment of the officer under section 1447, ReAdsed 
 Statutes, but the vacancy created by such re- 
 tirement remains unfilled: Held, that the action 
 of the President can be revoked and the officer 
 allowed a rehearing, the vacancy created by hia 
 retirement not having been filled and no righta 
 of any other person having therefore intervened. 
 (16 Op. Atty. Gen., 20.) 
 
 Certain officera in the grade of lieutenant, by 
 reason of vacancies in the next higher grade and 
 their seniority became eligible for promotion to 
 the vacancies upon passing the examinations 
 required by section 1496. They were exam- 
 ined and found disqualified j^rofessioually for 
 promotion. They were suspended from pro- 
 motion (sec. 1505, R. S.) and other officers next 
 in order of seniority were examined, found qual- 
 ified, and appointed to said vacancies. Lieut. 
 Barnes was one of the officers first examined and 
 the Attorney General (27 Op. Atty. Gen., 251, 
 258) held that said examinations were fatally 
 irregular and defective. In consequence of the 
 
 723 
 
Sec. 1502 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Attorney General's conflusion the four ofFicers 
 who liad boon suspended from {promotion were 
 ajraiu oxaniinod, found i|u;ililu'd, and coinmis- 
 eioned to fill the vacancies in the ejade of lieu- 
 tenant commander to which they were orig- 
 inally entit h'd. This necessitated the chaniring 
 of the dates of ])rouiotion to lhe grade of lieu- 
 tenant commander of those ollicers who in the 
 meantime had (|ualificd and been commissioned. 
 The fSecretaiy of the Na\y proi)erly, in accord- 
 ance with the Attorney General's opinion, 
 treated the examination as void and gave the 
 officers otlier examinations. Jhld, that the 
 promotions first made were contraiy to law 
 (section 1458, R. S.) as the officers so promoted 
 were not the senior oflicers entitled to such 
 promotion, in view of the fact that the exami- 
 nations fh-st held were irregular; accordingly 
 held that the commissions issued to such officers 
 were ineffecti^■e to give them the offices, but 
 that such officers were de facto lieutenant com- 
 manders from the date they received notice of 
 their commissions and entered upon duty 
 thereunder, although such promotions were 
 subsequently set aside as illegal; and that pay 
 received as such de facto lieutenant command- 
 ers can not be recovered back. (17 Comp. 
 Dec., 611). lender similar circumstances, an 
 officer who did not receive notice of his pro- 
 motion until after the date from which he took 
 rank when subsequently promoted in accord- 
 ance with law to another vacancy, was neither 
 a de j ure nor de facto officer during the inteiim 
 and therefore is not entitled to pay as lieutenant 
 commander for that period. (18 Comp. Dec, 
 340.) 
 
 Examination by supervisory board. — 
 Wliere the written professional examination of 
 an officer is conducted under the supervision of 
 a board of officers where he is stationed, before 
 which supervisoiy board the officer was ordered 
 to and did appear for examination, but the 
 record of proceedings of said supervisory board 
 and all the evidence before it were transmitted 
 to the Naval Examining Board at Wasliington, 
 D. C, to be finally passed ujDon by the latter 
 board subject to the approval or disapproval of 
 the President, held that the officers who super- 
 vised such examination as was had at the 
 officer's station were not the naval examining 
 board referred to in the statutes; their office was 
 
 merely to collect and put into proper written 
 form certain data and evidence bearing upon 
 the qiialilications of the candidate and to 
 transmit the same properly certified to the 
 examining board at Washington and it is the 
 latter board to which tlie statutes refer, before 
 which the candidate has the right to be pres- 
 ent. (27 Op. Atty. Gen., 251.) 
 
 Where an officer appearing before a super- 
 visoiy board formally waived liis right to appear 
 before the statutory board, which latter board 
 found him not ])rol'e.ssionally qualified for pro- 
 motion, it was decided by the Secretary of the 
 Navy, in accordance with the Attorney Gen- 
 eral's opinion (27 Op. Atty. Gen., 251, noted 
 above), that it would be legal to suspend the 
 officer from promotion in accordance with sec- 
 tion 1505, Re\dsed Statutes, as amended, but 
 that as a matter of expediency, he would be 
 permitted to appear before a statutoiy boai'd 
 for personal examination. (File 26260-2744, 
 May 22. 1910.) 
 
 Candidate should be formally notified 
 of charges against him. — \\Tiile it has been 
 held by the Navy Department that the candi- 
 date ha\dng been present during the examina- 
 tion and knoAvn the testimony introduced, and 
 having announced that he would not avail him- 
 self of the opportunity given by the board to 
 offer further testimony, had no ground for com- 
 plaint on accoimt of the fact that he had not 
 been formally notified that the evidence tended 
 to show that "he was addicted to habits of intem- 
 perance, the depaitment deems it proper that 
 in a case of this character the candidate should 
 be formally notified of the charges against him 
 and heard upon them as indicated in the pub- 
 lished instructions for naval courts and board. 
 (File 2136-98, Apr. 12, 1898.) 
 
 Statement by candidate not under 
 oath. — The candidate has the right to submit 
 a statement of his case on oath, if he chooses so 
 to do; however, where he did not express any 
 desire to make his statement under oath, but 
 submitted a statement not under oath, it must 
 be taken that he waived the right to make said 
 statement under oath. The proceedings of the 
 board in such case were accordingly approved 
 by the President. (File 26260-1678, Feb. 28, 
 1912; see also file 26260-1360:1, Jan. 30 and 
 Feb. 12. 1912.) 
 
 Sec. 1601. [Record.] The statement of such officer, if made, and the tes- 
 timony of the witnesses and his examination shall be recorded. — (21 April, 
 1864, c. 63, s. 3, v. 13, p. 53.) 
 
 The Judge Advocate General shall, under the 
 dii-ection of the Secretaiy of the Nav>% 
 receive, revise, and have recorded the 
 proceedings of all boards for the examina- 
 tion of officers for promotion in the naval 
 
 service. (Act June 8, 1880, 21 Stat., 164, 
 
 amended June 5, 1896, 29 Stat., 251.) 
 
 Instructions for the keeping of records 
 
 of examining Ijoards and the form of such 
 
 records, are contained in Naval Courts and 
 
 Boards, 1917. 
 
 Sec. 1602. [Revision by the President.] Any matter on the files and records 
 of the Navy Department, touchmg eacli case, which may, in the opuiion of the 
 board, be necessary to assist them in making up their judgment, shall, together 
 with the whole record and finding, be presented to the President for his approval 
 or disapproval of the finding. — (21 April, 1864, c. 63, s. 3, v. 13, p. 53.) 
 
 724 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1503. 
 
 Amendment to this section was made by act 
 of June IS, 1878 (20 Stat., 165), which pro- 
 \'ided ' ' that hereafter in the examination of 
 officers in the Navy for promotion no fact 
 which occuiTed prior to the last examina- 
 tion of the candidate whereby he was pro- 
 moted, which has been enquired into and 
 decided upon, shall be again enquired into, 
 but such preAT-Ous examination, if ap- 
 proved, shall be conclusive, unless such 
 fact continuing shows the unfitness of the 
 officer to perform all his duties at sea." 
 Also by act of May 22. 1917, section 20 (40 
 Stat.. 90), which provided that "the Presi- 
 dent be, and he is hereby, authorized to 
 direct the Secretarj' of the Na\'y to take 
 such action on the records of proceedings of 
 naval examining boards and boards of naval 
 siu'geons for the promotion of officers of the 
 Navy as is now required by law to be taken 
 by tiie President."' 
 Supervisory power of President over 
 physical examination. — Section 3 of the act 
 of April 21, 18G4 (sec. 1502, R. S.), refers to 
 action by the President upon the finding of the 
 board of examining officers provided for in sec- 
 tion 1 of that act, wliich passes upon the "men- 
 tal, moral, and professional fitness" of the can- 
 didate. There is nothing in said act constituting 
 the board of na\-al surgeons, as to who shall ap- 
 point them, or as to the number of whichthe board 
 shall consist, nor any express provision for ap- 
 proval or disapproval by the President. How- 
 ever, by the fourth section of the act of July 16, 
 1862 (12 Stat., 584), provision was made for an 
 ad\"isory board to report upon the "moral, men- 
 tal, physical, and professional qualifications" of 
 line officers for promotion; and section 5 of the 
 act of April 21. 1864, provides that all officers 
 not recommended for promotion under the said 
 pro\'ision in the act of 1862 *' shall have the right 
 to present themselves for examination, accord- 
 ing to the proA-isions of this act; and if found 
 duly qualified, and such finding be approved 
 by the President of the United States, they 
 shall be promoted," etc. Although this pro- 
 vision of the act of 1864 provides only for such 
 officers who lia\'e been before the board estab- 
 lished by the act of 1862. and were not recom- 
 mended by that board, it affords safe groand 
 for holding that the same approval exists as to 
 all other officers examined by both boards in 
 accordance with the act of 1864. Accordingly, 
 held, that the President has a supervisory power 
 over the action of the board of naval siii-geons 
 proA-ided for in section 4 of the act of April 21, 
 1864 (sec. 1493, R. S.), and may approve or 
 disapprove the same. (12 Op. Atty. Gen., 347.) 
 No officer can be promoted until his physical 
 fitness to discharge all his duties at sea has been 
 favorably passed upon by a board and the 
 board's action has the approN-al of the President. 
 (Hooper 1). U. S., 53 Ct. Cls., 90, 102.) 
 
 The conclusions of any military court, board, 
 or commission must, before being carried into 
 execution, have the approval of the Commander 
 in Chief or of some one representing him. Ac- 
 cordingly, even where the law does not ex- 
 pressly provide for approval of boards in the 
 Ai-my, such boards must receive the approval 
 of the Secretar}' of War, whose action is con- 
 clusively presumed to be that of the President, 
 
 in order to be valid and effective. It is not, 
 however, essential that this approval should 
 be express or indicated in any formal language; 
 it might be indicated by merely giving effect, 
 thi'ough appropriate orders, to the findings of 
 the board. (27 Op. Atty. Gen., 193; file 
 26266—627:1, Jan. 30, 1919.) 
 
 See also act of May 22, 1917, section 20 (40 
 Stat., 90), quoted above as amendment to sec- 
 tion 1502. 
 
 Approval or disapproval of President 
 required to give effect to findings. — Under 
 the law a candidate's status could not become 
 that ef an officer qualified for promotion until 
 his physical fitness for the promotion had been 
 found b}^ a board of naval surgeons, as required 
 by sections 1493 and 1494, Revised Statutes, 
 and his mental, moral, and professional fitness 
 therefor had been found by a board of examin- 
 ing officers appointed under section 1496, and 
 *the findings of both of these boards to that effect 
 had been approved by the President as required 
 by section 1502 (22 Comp. Dec, 153, citing 12 
 Op. Attv. Gen., 347, 18 Comp. Dec, 466, 
 Jouett V. U. S., 28 Ct. Cls., 257, 266). On the 
 other hand, his status could not become that 
 of an officer disqualified for promotion or to 
 whom the presumption of disqualification at- 
 taches by the mere finding of the board alone, 
 without its approval by the President, as sec- 
 tion 1502 requires equally all findings of a board, 
 whether of fitness or unfitness, to be presented 
 to the President for his approval or disapproval, 
 and an officer is entitled to the benefit of the 
 President's action on an adverse finding before 
 being classed as disqualified or being presumed 
 to be disqualified. (22 Comp. Dec, 153; com- 
 pare Hooper v. U. S., 53 Ct. Cls., 90.) 
 
 The promotion of an officer can not take place 
 (under sees. 1493, 1494, 1496, and 1502) until 
 his fitness for the promotion has been established 
 to the satisfaction of both the lx)ard of naval 
 siu-geons and the board of examining officers, 
 and the recommendation of both boards to tliis 
 effect has been rendered operative by the 
 approval of the President. (18 Comp. Dec, 
 466, citing 12 Op. Atty. Gen., 347; Jouett v. 
 U. S., 28 Ct. Cls., 257, 266-267; Adamson v. 
 U. S., 19 Ct. Cls., 623, 628; Crygier, Admx. v. 
 U. S., 25 Ct. Cls., 268; 17 Comp. Dec, 167, etc.) 
 Suspension of action by the President. — 
 An officer absent from the United States on 
 duty on a foreign station became due for promo- 
 tion by seniority; he was nominated for the 
 promotion, "subject to the requii'ed examina- 
 tion before being commissioned''; the Senate 
 achised and consented to the appointment of 
 said officer and others similarly nominated, 
 ' ' agreeably to theii- nominations, respectively' ' ; 
 the same day the President signed a commission 
 appointing the officer to the higher ^ade for 
 which nominated and confirmed, which com- 
 mission was given to the Secretary of the Navy, 
 who held it to be delivered to the officer upon 
 his passing the examination required by law; 
 after his return to the United States some years 
 later, the officer was duly examined, and 
 reported qualified by the board in conformity 
 with section 1504, Revised Statutes; the Presi- 
 dent took the following action upon the board's 
 report: "After examination of the record I have 
 concluded to suspend final action upon the 
 
 725 
 
Sec. 1502. 
 
 Pi. 2. REVISED STATUTES. 
 
 The Navy. 
 
 fijuliiig of the l>oard luilil uii opportunity shall 
 hAxo been afforded Lieut. Jouett to further 
 estal^lit^h hi.>^ fitne.'ss for promotion, which, con- 
 pideriiig the c^•idenc■e of record indicating a 
 tendency on his part to intemperate habits, I 
 regard as open to question, lie will therefore 
 1)6 ordered for duty at sea, for such period as 
 the Secretary- of the Navy may deem proper, 
 and his conduct while on such sendee will be 
 roi Hirted for my information . ' ' The President's 
 order was obeyed, and more than a year later 
 he disapproved the findings and recommenda- 
 tions of the lx)ard and directed the officer to be 
 reexamined. The following year the r)fficer 
 wasreexamined andfound not morally qualified, 
 which finding was ajijiroved by the President 
 and the officer discharged from the service in 
 accordance with the act of August 5, 1882 (22 
 Stat., 280), (which was enacted after he had 
 become due for promotion and had been nom- 
 inated, confirmed, and his commission made 
 out subject to examination). Held, That the 
 President's approval or disapproval of the find- 
 ings is, by section 1502, Re^dsed Statutes, dis- 
 tinctly required, and it is contemplated that he 
 shall "examine the whole record and findings: 
 having the duty imposed upon him to approve 
 or disapprove, the President had the power to 
 suspend action or to seek further information; 
 these are necessaiy incidents of the executive 
 reviewdng power; to become operative the 
 board's decision must be acted upon by the 
 President, and the nomination and confirma- 
 tion of a naval officer for promotion, ''subject 
 to the required examination before being com- 
 missioned," do not take the case out of the 
 operation of the Pve^'ised Statutes, section 1502, 
 which makes examinations subject to the 
 approval of the President. (Jouett v. U. S., 28 
 Ct. ns.,257.) 
 
 An officer was examined for promotion in 
 course to fill a vacancy existing on August 23, 
 1912; the board of naval surgeons which ex- 
 amined him on December 9, 1912, found him 
 physically qualified for promotion and said 
 finding was approved by the President Julyl, 
 1913 ; the examining board , which examined him 
 on February 4, 1913, found him mentally and 
 professionally, but not morally, qualified; this 
 finding was not presented to the President and 
 no action was taken by him thereon. He was 
 again examined, May 8, 1913, and found men- 
 tally, morally, and professionally qualified; the 
 President on July 1, 1913, directed that action 
 upon this report be suspended for one year; he 
 was again examined, August 19, 1914, and found 
 mentally, morally, and professionally qualified; 
 the President on September IG, 1914, directed 
 that action upon this report be withheld for a 
 period of six months, "when such action will 
 tje taken as the nature of a special report which 
 will be required from his commanding officer 
 will warrant." At the end of six montlis the 
 required findings and special report were sub- 
 mitted to the President and on I^Iarch 25, 1915, 
 he approved the findings of the examining 
 boards of May 8,1913, and Augu.st 19, 1914, to 
 the effect that the officer was mentally, morally, 
 and professionally qualified. The President 
 ha^'ing previously approved the findings of the 
 medical board as to the physical fitness of the 
 candidate, upon his approval of the findings as 
 
 to his mental, moral, and professional quali- 
 iications on March 24, 1915, the candidate's 
 status became that of an officer qualified for 
 promotion in course to fill a vacancy, who had 
 not previously been disqualified for the promo- 
 tion and to whom no presumption of disquali- 
 fication attached prior to his actual qualifica- 
 tion, and who therefore is presumed to have 
 been qualified from the date of the vacancy. 
 (22 Com p. Dec, 153; compare Hooper v. U. S., 
 53rt. Cls., 90.) 
 
 Section 1502 contemplates an examination 
 by the President of the whole record and find- 
 ings and no limitation is placed upon the time 
 which he may take in appro\dng or disapprov- 
 ing a finding. Having the duty imposed upon 
 him under the statute to approve or disapproA-e 
 a finding, he had the power to suspend doing so 
 and to seek further information, and his sus- 
 pension of July 1, 1913, of such action in this 
 case for one year on the findings of the mental, 
 moral, and professional fitness of the board of 
 May 8, 1913, and his further withholding, Feb- 
 ruary 16, 1914, of such action for six months 
 subsequent to the finding to the same effect 
 of the board of August 19, 1914, were necessary 
 incidents of his exercise of the reAde^vLng power 
 confen-ed on him by section 1502, (22 Comp. 
 Dec, 153, citing Jouett v. U. S., 28 Ct. Cls., 
 257, 262.) 
 
 An officer became due for promotion by 
 length of ser^dce on December 27, 1912; was 
 examined by a board of medical examiners on 
 February 15, 1913, and by a na^-al examining 
 board on February 19, 1913, and foimd quali- 
 fied by both boards. In \dew, howe%-er, of 
 unfavorable reports of fitness in his case, the 
 Secretary of the NaAy recommended and the 
 President directed on April 9, 1913, that final 
 action on the findings and recommendations 
 of the boards be suspended for a period of one 
 year, at the expiration of which time he would 
 be again examined. On October 31, 1914, he 
 was reexamined by a board of medical exam- 
 iners and found not physically qualified for 
 promotion. This finding was approved by the 
 President on November 21, 1914. He was ex- 
 amined by a naval retiring board on Decem- 
 ber 21, 1914, and foimd temporarily incapaci- 
 tated for active service, and on June 12, 1915, 
 was reported by another naval retiring board 
 not incapacitated for active sendee; both 
 reports were approved by the President. On 
 September 15, 1915, he was examined by a 
 board of medical examiners and foimd phj^si- 
 cally qualified for promotion, but imder date 
 of November 17, 1915, was found by a naval 
 examining board to be not professionally qual- 
 ified ; both reports were approved by the Presi- 
 dent and the officer was suspended fi'om 
 promotion for six months in accordance wdth 
 section 1505, as amended. On July 7, 1916, he 
 was examined by a board of medical examiners 
 which foimd him not physically qualified for 
 promotion and recommended that he be re- 
 examined physically in six months; no action 
 was taken by the President upon this report. 
 On January 22, 1917, he was again examined 
 by a board of medical examiners and found 
 pnysically qualified for promotion and on 
 January 30, 1917, a na^-al examining board 
 reported him mentally, morally, and profes- 
 
 726 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1502. 
 
 sionally qualified for promotion; both reports 
 were approved by the President on April 5, 
 1917. He was commissioned in the higher 
 grade for which found qualified \vith date from 
 Jime 27, 1913, six months after the date on 
 which he originally became due for promotion. 
 The officer brought suit in the Court of Claims 
 for pay of the higher grade from the date stated 
 in his commission, and the attorney for the 
 United States conceded his right to recover. 
 Nevertheless the Court of Claims decided that 
 the officer was not entitled to pay from the date 
 stated in his commission, Jime 27, 1913, as 
 authorized by the act of March 4, 1913 (37 
 Stat., 892). Four opinions were filed by the 
 court in this case, in wliich the President's 
 course in suspending action upon the favorable 
 reports of the boards which first examined the 
 officer and foimd him qualified was construed 
 as equivalent to an imfavorable finding by 
 said boards. In the opinion of Hay, J., it was 
 stated with reference to this point: "It does not 
 appear from the record whether the unfavor- 
 able reports of fitness referred to professional 
 or physical unfitness; and for a proper deter- 
 mination of the case it makes no difference to 
 which they referred. If he was physically 
 unfit, and the President for that reason sus- 
 pended for a period of one year the findings 
 and recommendations of the boards, and di- 
 rected him to be examined again at the end of 
 that period, then the plaintiff could not have 
 been promoted in pursuance of law at the time 
 he was examined, nor until he became physi- 
 cally qualified * * *. It also appears that 
 the plaintiff was physically disqualified down 
 to June 12, 1915. * * * If he failed pro- 
 fessionally on his first examination and failed 
 again on his reexamination, he is illegally in 
 the service and certainly can not now ask for 
 the pay of an office to which he is not entitled. 
 So whether he was physically or professionally 
 unfit in his first examination he has no stand- 
 ing in this court." In the opinion of Barney, 
 J., it Avas said: "As before stated, the plaintiff 
 in this case was deferred from rank as chief 
 machinist for six months, presumably by 
 reason of haAdng failed once professionally on 
 an examination, but was not deferred from rank 
 on advance on accoimt of physical disability. 
 * * * Section 1493, it will be seen, suspends 
 him from promotion automatically during the 
 period that he is not qualified for service at sea, 
 which of course is during the time he is 
 physically disqualified for promotion. Thus, 
 construing section 1493, section 1505, as 
 amended, and the act of March 4, 1913, together 
 the plaintiff was automatically (by sec. 1493) 
 and actually by law (act of Mar. 4, 1913) sus- 
 pended from promotion during the whole 
 period extending fi'om the completion of his 
 six years' ser\dce as machinist (Dec. 29, 1912) 
 to a date six months after his failure on exam- 
 ination professionally, which would bring that 
 time to June 16, 1916, beyond which his rank 
 could not be extended.'' Campbell, C. J., 
 referring to the qualifications for promotion of 
 the officer at the time he originally liecame due, 
 stated: "Not only is it thus made to appear 
 that he was not qualified, but the record goes 
 further and affirmati^-ely shows that he was 
 disqualified. To have promoted him in the 
 
 face of this record would have been in total 
 disregard of section 1493." It was further 
 stated in the opinion last cited: "Up to Sep- 
 tember 15, 1915, the plaintiff had been found 
 physically disqualified and therefore could not 
 be promoted because of the provisions of sec- 
 tion 1493. * * * He was examined on 
 July 7, 1916, and was reported incapacitated 
 for duty. While no action appears to have 
 been taken by the President on the last report, 
 the officer could not be promoted under sec- 
 tion 1493 in face of that report unless inaction 
 upon it be held to be equivalent to no report 
 by the board. It was not until January 22, 
 1917, that plaintiff qualified under section 
 1493." (Hooper v. U. S., 53 Ct. Cls., 90.) The 
 Secretary of the Navy submitted to the Depart- 
 ment of Justice a memorandum concerning 
 this case mth request that if deemed advisable 
 same be placed before the Court of Claims in 
 any further proceedings which might be had; 
 motion for a new trial was made by claimant 
 and was overruled by the Court of Claims be- 
 fore opportunity had presented for the Attorney 
 General to consider the question of submitting 
 said memorandum to the couit. The Secre- 
 tary of the Na\^ thereupon sul^mitted to the 
 Court of Claims certain questions bearing upon 
 the action to be taken in this case, for a ruling 
 by the court thereupon under section 148 of the 
 Judicial Code, and the court decided that it 
 was -without jurisdiction under that section to 
 answer the questions so submitted. It was 
 thereupon decided by the Na\'y Department 
 that, as the case stood, the ajjpointment which 
 had been issued to this officer was inoperative 
 and ineffectual, and that the necessary steps 
 should be taken to issue him a new appoint- 
 ment; also that as the Court of Claims' decision 
 appeared to have been based principally upon 
 the fact that no final action had ever been taken 
 upon the first examinations in this case, the 
 records thereof should be submitted to the 
 President with recommendation that the find- 
 ing of the l)oard of medical examiners that this 
 officer was physically qualified when first 
 examined be approved, and that the finding as 
 to his professional qualifications be disapproA'ed ; 
 which was accordingly done, and upon such 
 action having been taken by the President 
 the oflScer was renominated, reconfirmed, and 
 recommissioned with rank from the same date 
 as stated in his original commission. (File 
 26266-627:1.) He then brought suit in the 
 Court of Claims for pay from date stated in his 
 new commission (Hooper v. U. S., Ct. Cls., 
 No. 33,975), but this suit was subsequently 
 wdthdrawn by him prior to decision. 
 
 Approval by President subject to recom- 
 mendation of Secretary of the Navy. — 
 An officer was examined for promotion and 
 found not physically qualified therefor. The 
 Bureau of Medicine and Surgery recommended 
 that he " l)e ordered to naval hospital for opera- 
 tive treatment, and that he 1 je reexamined when 
 he has recovered to determine his physical fit- 
 ness for promotion." The Secretary of the 
 Na"vy, reciting the recommendation of_ the 
 Bureau of Medicine and Surgery, transmitted 
 the record to the President with his ad^dce 
 "that the findings and recommendation of the 
 board of medical examiners in this case be 
 
 727 
 
Sec. 1504. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 apjiroved, ^vith a -view to effecting the recom- 
 mendation of the Biirr'an of Medicine and Sur- 
 fery in the above-quoted indorsement." The 
 'resident's action upon the record was as fol- 
 lows: "The finding and recommendation of 
 the board in this case are approved." There- 
 after the officer was admitted to the naval 
 hospital for operative treatment, after which 
 he was again examined and found physically 
 qualified for promotion. Held, that it would 
 be too strict, if not a strained construction of 
 the President's action to say that he merely 
 approN'ed the Ihiding of the Ijoard of medical 
 examiners when as a matter of fact he had l)e- 
 fore him not only their rejwrt but the recom- 
 mendation of the Bureau of Medicine and Sur- 
 gery and the adAdce thereon of the Secretary 
 of the Naw. In \dew of the course that was 
 subsequently taken it would seem that the 
 construction adopted and acted upon, that the 
 Executive had approved the recommendation 
 of the Bureau of Medicine and Surger\' which 
 accompanied the report, indorsed as it was by 
 the Secretary of the Navy, that the officer be 
 reexamined after receiving operative treat- 
 
 Sec. 1503. [No officer to be rejected without examination.] No officer shall 
 be rejected until after such public examination of himself and of the records of 
 the Navy Department in his case, unless he fails, after having been duly notified, 
 to appear before said board. — (21 April, 1864, c. 63, s. 3, v. 13, p. 53.) 
 
 ment, can not be said under the facts of the case 
 to have been an unreasonable construction. 
 Accordingly the officer did not lose any right 
 to be promoted to the vacancy for which first 
 examined Avith rank from date of said vacancy. 
 (Do\vnes v. U. S., 52 Ct. Cls., 237; compare 22 
 Comp. Dec, 565, 591, 646.) 
 
 Revocation of President's action. — See 
 note to section 1456, Revised Statutes, under 
 "Revocation of President's action." See also 
 examining board record in case of Lieut. 
 (Junior Grade) Harold W. Scofield, United 
 States Navy, and iile 2(i2(R)-G133, April 26, 1919. 
 
 Jurisdiction of Civil Courts. — The pro- 
 ceedings of an examining board to determine the 
 qualifications of an officer of the Army for pro- 
 motion can not be reviewed by the civil courts 
 by v\Tit of certiorari. The decision of the board 
 is not final but must be reported vdth the pro- 
 ceedings to the President, and may be approved 
 or disapproved by him. This is the only relief 
 from the errors or the injustice that may be done 
 bv the board which is provided. (Reaves v. 
 Amsworth, 219 U. S., 296, 306.) 
 
 Statute held to be mandatory. — ^The lan- 
 guage of the section, "'no officer shall l)e rejected 
 until after such pulilic examination of himself," 
 refers manifestly to the previous sections giving 
 him the right to appear and be examined under 
 oath; and it is this personal examination which 
 must be had in every case liefore an adverse 
 finding, or which is the same thing, before the 
 officer can be rejected. These provisions 
 make it certain, first, in ev^ery case the officer 
 has a right to be present at his examination; 
 second, in every case he must be duly notified 
 of the time and place of his examination and 
 unless he waives his right or expresses a lack 
 of desire to be present, he must l)e giv^en leave 
 of absence or permission to attend; and third, 
 no finding of the l)oard adverse to his qualifica- 
 tions for promotion can be made without a per- 
 sonal examination of the ofiicer himself unless 
 he fails to appear after having been duly notified 
 to do so. The proceedings of an examining 
 board are fatally irregular and defective where 
 the officer being at the time in the performance 
 of his duty on shipboard under orders of his 
 superior officer, was not notified of the time and 
 place of his examination for promotion and was 
 not given and did not have an opportunity or 
 permission to exercise his right to appear and 
 be heard at such examination, and nevertheless 
 
 said board of examiners rejected said officer 
 and his application for promotion without any 
 examination of himself, although he had not 
 failed "to appear, after being dulv" notified, 
 before said board." (27 Op. Atty. Gen., 251.) 
 
 Wliile the expression, "no officer shall be 
 rejected until," etc., is not the most apt to 
 express the idea intended, yet the meaning 
 of the section is 1)oth certain and plain. For 
 the only matter or thing which this board can 
 "reject" or allow or pass upon at all is the 
 application, claim, or right of the officer to 
 promotion, involv ing of course his fitness there- 
 for. The board can do but one of two things, 
 find the officer (jualified and recommend his 
 promotion or find him not qualified and fail 
 to recommend his promotion. The latter is 
 the only possilile way in which an officer can 
 be "rejected," and when the board thus finds 
 that the officer is not (jualified and that they do 
 not recommend him for promotion, the officer 
 is "rejected" within the meaning of this sec- 
 tion. And this is what the section says shall 
 not be done without the personal examination 
 of the officer or his failure to appear after being 
 duly notified to do so. (27 Op. Atty. Gen., 251.) 
 
 For other cases, see note to section 1500, 
 Revised Statues. 
 
 Sec. 1504. [Report of recommendation.] Such examining board shall report 
 their recommendation of any officer for promotion in the following form: "We 
 
 hereby certify that has the mental, moral, and professional 
 
 qualifications to perform efficiently all the duties, both at sea and on shore, of 
 the grade to which he is to be promoted, and recommend him for promotion." — 
 (16 July, 1862, c. 183, s. 4, v. 12, p. 584. As amended by 21 April, 1864, c. 63, 
 s. 4, V. 13, p. 53. 28 July, 1866, c. 312, s. 1, v. 14, pp. 344, 345.) 
 
 728 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1505. 
 
 Form of report by naval examining 
 board. — By act of May 22, 1917, section 20 
 (40 Stat., 89), it was pro^dded "that hereafter 
 all laws relating to the examination of officers 
 of the Navy for promotion shall be construed 
 to apply to the regular advancement of staff 
 officers to higher ranlcs on the acti-ve list the 
 same as though such advancements in rank 
 were promotions to higher grades: Provided, 
 That examinations for such staff officers shall 
 not be required except for such regular advance- 
 ments in rank." Naval Courts and Boards, 
 1917 (p. 439), prescrilwd the form of report by 
 naval examining lioards in the cases of candi- 
 dates found qualified for promotion, as follows: 
 
 "We hereby certify that Lieutenant H 
 
 C. E , U. S. Navy, has the mental, 
 
 moral, and professional qualifications to per- 
 form efficiently all the duties, both at sea 
 and on shore, of the grade (grades) to which 
 
 he is to be promoted, to wit: (and ) 
 
 and recommend him for promotion." By 
 Changes in Naval Courts and Boards, 1917, 
 No. 1, of March 16, 1918, the foregoing form 
 was changed by inserting after the word 
 "(grades)" the words "(or rank)," and by 
 striking out the words "to which he is to be 
 promoted," and inserting in place thereof 
 the words "for promotion to wMch he is a 
 candidate." By Changes in Naval Courts and 
 Boards, 1917, No. 2, the words, " for promotion 
 to which he is a candidate," were stiicken out, 
 and the words used in section 1504, "to which 
 he is to 1)6 promoted," were restored. 
 
 Sec. 1605. [Failing in examination.] Any officer of the Navy on the active 
 list below the rank of commander who, u]ion examination for promotion, is 
 found not professionally qualified, shall be suspended from promotion for a 
 period of six months from the date of approval of said examination, and shall 
 suffer a loss of numbers equal to the average six months' rate of promotion to 
 the grade for which said officer is undergoing examination during the five fiscal 
 years next preceding the date of approval of said examination, and upon the 
 termination of said suspension from promotion he shall be reexamined, and in 
 case of his failure upon such reexamination he shall be dropped from the service 
 with not more than one year's pay: Provided, That the provisions of this Act 
 shall be effective from and after January first, nineteen hundred and eleven. 
 
 This section was amended and reenacted to 
 read as above by act of March 11, 1912 (37 
 Stat., 73). As originally enacted it read 
 as follows: 
 "Sec. 1505. Any officer of the Navy on the 
 active list below the grade of commander, 
 who, upon examination for promotion, is 
 not found professionally qualified, shall be 
 suspended from promotion for one year, 
 with corresponding loss of date when he 
 shall be re-examined, and in case of his 
 failure upon such re-examination he shall 
 be dropped from the service." (15 July, 
 1870, c. 295, s. 8, v. 16, p. 333.) 
 Further amendment to this section was made by 
 act of August 29, 1916 (39 Stat., 579), pro- 
 viding for promotion by selection of line 
 officers in the grades of lieutenant com- 
 mander, commander, and captain, which 
 act provided that should officers so selected 
 fail in their professional examination they 
 "shall thereafter be ineligil)le for selection 
 and promotion. " This law v/as extended 
 to staff officers of the Navy by act of July 
 1, 1918 (40 Stat., 718). 
 Construction of section 1505 prior to 
 amendment. — -The words in section 1505, 
 "shall be suspended from promotion for one 
 year, \vith corresponding loss of date, " do not 
 mean that the loss of date is to be contem- 
 poraneous with the term of suspension but only 
 that it shall agree therewith in point of dura- 
 tion. Accordingly, where a lieutenant in the 
 Navy, being the senior ofticer of his grade, 
 became entitled to examination for promotion 
 to fill a vacancy in the next higher grade (lieu- 
 tenant commander) which occurred January 
 
 22, 1880, and afterwards upon examination 
 failed to pass and the findings of the examining 
 board were approved, February 6, 1880, by the 
 President, who dii-ected that the officer "be 
 suspended from promotion for one year, with 
 corresponding loss of date, " held that the loss 
 of date of the officer is one year, to be reckoned 
 from the occurrence of the vacancy, January 22, 
 1880, the date from which he would have taken 
 rank as lieutenant commander had he been 
 found qualified for promotion, and that his 
 year of suspension is to be reckoned from the 
 approval by the President of the findings of the 
 examining boards, February 6, 1880. In this 
 case, as the officer, by reason of his suspension, 
 is ineligible for promotion during the whole of 
 the year commencing February 6, 1880, no va- 
 cancy should be kept open for him until Feb- 
 ruary 6, 1881. Such vacancies as happen to 
 exist during that period the officers who are 
 then eligible for promotion are entitled to fill. 
 But as his loss of date is only to be one year 
 from January 22, 1880, if on liis second exam- 
 ination he shall be found qualified to fill a 
 vacancy in the next higher grade which occurred 
 after the period of his suspension, he will be 
 entitled upon promotion thereto to take rank 
 in such grade as of the date of January 22, 1881; 
 he will not, however, be entitled to the pay of 
 the higher grade from the ranking date in his 
 commission, as his case is not one covered by 
 section 1562, Revised Statutes. (16 Op. Atty. 
 Gen., 587; pay of officers on promotion from 
 date stated in their commissions is now provided 
 for by act of Mar. 4, 1913, 37 Stat., 892.) 
 
 If it were held that thf loss of date is to com- 
 mence from the time when the President ap- 
 
 729 
 
Sec. 1505. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 proved the findings of the examining boards, 
 the ollicer might practically lose much more 
 than a year in date, as under some circumstances 
 there may be considerable delay in the adjudi- 
 cation of his case. On the other hand, if the 
 suspension is to date from the time of the oc- 
 currence of the original vacancy, it is easy to 
 conceive of cases in which the otiicer suspended 
 would not have the time which it was the inten- 
 tion of the statute to allow him in order to re- 
 pair the deficiencies in his professional qualifi- 
 cations. If upon his second examination he 
 fails, the officer is to be dropped from the rolls 
 of the Navy; and in making provision for sus- 
 pension and for reexamination it was clearly 
 intended that a considerable time should elapse 
 between the commencement of the suspension 
 and the time when he could be ordered for re- 
 examination. For the period of the year of 
 suspension the officer is out of the ser\-ice so far 
 as promotion is concerned. As he is ineligible 
 for promotion during the whole year, no va- 
 cancy should be kept open for him until ex- 
 piration of that period. Such vacancies as 
 occur the ofiicers who are then eligible are enti- 
 tled to fill; and it is the ob\-ious intention of 
 Congress that such positions shall be filled, as 
 they are created not for the benefit of officers 
 but for the needs of the public service. (16 Op. 
 Atty. Gen., 587.) 
 
 Section 1505, prior to its amendment, required 
 that professional failure of an officer below the 
 grade of commander be followed by suspension 
 "from promotion"' for one year with corres- 
 ponding ' ■ loss of date, " or a one-year loss of date 
 and a subsequent reexamination. Under the 
 construction which was placed upon it, the 
 year of suspension "from promotion" began to 
 run from the date of the President's approval of 
 the finding by a naAal examining board of pro- 
 fessional disqualification of an officer for promo- 
 tion; on the other hand, the year of "loss of 
 date" began to run from the retroactiA-e date of 
 the vacancy for which the officer was examined 
 and found disqualified to fill (citing 16 Op. 
 Atty. Gen., 587; 25 Op. Atty. Gen., 568; 20 
 Comp. Dec, 199, etc.). The year of suspen- 
 sion "from promotion" and the year of "loss of 
 date" were different years and covered differ- 
 ent periods of time, the former running from one 
 date, the latter from another, and the two per- 
 iods being separate and distinct. The period 
 of suspension "from promotion" was the period 
 which affected the right of the oflicer to the pay 
 of the higher office for which he had failed to 
 qualify, in that it postponed for a year his reex- 
 amination to that office, which in turn affected 
 the })articular vacancy in said higher office to 
 which upon eventually passing the examina- 
 tions as required by law he would become en- 
 titled to be appointed or promoted. During 
 said year of suspension from promotion no va- 
 cancy in the higher office could be kept open 
 for him, and upon his subsequently passing the 
 examination he could only be appointed to a 
 vacancy that was in existence during the year 
 in the event there remained one to which the 
 right of no other officer had attached. On his 
 appointment to such a vacancy or a subsequent 
 one he became entitled to the rank of the higher 
 office for pay pujqjoses for the retroactiAe period 
 i'rom the date of appointment back to the date 
 
 of the vacancy he was entitled to fill or in other 
 words to the pay of the higher oflice from the 
 date of such vacancy if an officer covered by the 
 act of June 22, 1874 (18 Stat., 191). His "loss 
 of date" on the other hand operated to reduce 
 him in number on the list which in turn oper- 
 ated to delay his right to promotion to the grade 
 above the one from which he had been sus- 
 pended from promotion because of his being 
 relegated by said loss of numbers to a lower 
 place in the list than he othemise would have 
 occupied. It had no effect on his rank for pay 
 purposes to the office from which he had been 
 suspended (22 Comp. Dec, 623, citing 16 Op. 
 Atty. Gen., 587, 592). 
 
 Where a vacancy occurring February' 2, 1895, 
 was held open for an officer during his year of 
 suspension, after which he was again examined 
 and was promoted to fill said vacancy with 
 rank from February 2, 1896, one year after the 
 vacancy occurred, held that he was not entitled 
 to be promoted to said vacancy but should have 
 been promoted to the first vacancy occurring 
 after the expiration of his year of suspension; 
 and that he can not be allowed pay in the 
 higher grade until the date that the latter va- 
 cancy occurred. (6 Com. Dec, 17.) 
 
 Method of executing loss of numbers. — 
 Under section 1505, as it originally read, an of- 
 ficer suspended from promotion by reason of 
 failure on examination, although subjected to 
 a loss of numbers greater than at present, did 
 not lose his position as the senior officer in his 
 grade during his period of suspension. In 
 other words, the officer while under suspension 
 was nevertheless carried at the top of his grade, 
 his loss of numbers being accomplished by the 
 advancement over him of his juniors in grade 
 who successfully qualified for promotion diu"- 
 ing the period of one year from the date of the 
 vacancy to which he would have been advanced 
 had he' qualified therefor (citing file 26521-40, 
 June 11. 1912); the amendment of March 11, 
 1912, was intended to reduce the period of sus- 
 pension from one year to six months, and to 
 mitigate the loss of numbers; also it proxided 
 that if the officer failed upon reexamination he 
 should be dropped from the service Arith not 
 mot;e than one year's pay^ instead of being dis- 
 charged without any additional pay as was for- 
 merly the case. Accordingly, the whole pur- 
 pose of the amendment was to mitigate the 
 penalties previously prescribed by law for fail- 
 ure of an olficer to qualify for promotion and not 
 to add new penalties or to increase those already 
 required. The administrative practice of the 
 NaA^ Department, adopted upon the amend- 
 ment, was to reduce the officer in his grade 
 while under suspension according to the loss of 
 numbers suffered, thereby imposing upon him 
 a loss of seniority in grade while under suspen- 
 sion which he did not suffer under the former 
 laws, thus adding a new penalty to that for- 
 merly proAided. This practice, in the caseof 
 officers promoted by seniority, created an in- 
 consistency between the period of suspension 
 and the loss of numbers, which in many in- 
 stances would operate to increase the period of 
 suspension beyond the six months provided for 
 by Congress; also in the case of officers pro- 
 moted by length of service it necessitated, 
 first, reducing the officer below those who were 
 
 730 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1605. 
 
 eventually to rank him, secondly, advancing 
 him over the heads of such officers as had not 
 been promoted when his term of suspension ex- 
 pii-ed, and third, holding him at the foot of the 
 higher grade when so advanced until the officers 
 whom he had j limped should be advanced over 
 him. These objections would be obviated by 
 reverting to the practice which was in force un- 
 der section 1505 as it originally read, \iz, let- 
 ting the officer retain his position at the top of 
 his grade during his period of suspension and 
 advancing his juniors over him until his total 
 loss of numbers had been consummated; 
 should his period of suspension expire in the 
 meantime, under this practice he would be pro- 
 moted if qualified and then mark time at the 
 foot of the next higher grade until the other of- 
 ficers entitled to rank him in consequence of 
 his loss of numbers had been advanced over 
 him. (File 26260-3091: 1, Nov. 3, 1915.)_ 
 
 While legal and fully in accordance with the 
 spirit and purpose of the law to execute the 
 total loss of numbers by having the officer 
 mark time during his period of suspension 
 while his juniors are advanced over him until 
 the total loss of numbers has been consummated, 
 the former pi-actice of reducing the officer in 
 grade during the period of suspension, which 
 was adopted after the amendment of March 11, 
 1912, was not illegal; the law permits of either 
 practice, and it was well within the discretion 
 of the Navy Department to execute the total 
 loss of niunbers immediately upon commence- 
 ment of the period of suspension, as it has done. 
 It follows that, notwithstanding a change in 
 this practice, the action taken in past cases, not 
 being illegal, should not be disturbed where 
 the officers concerned have already been pro- 
 moted and commissioned. (File 26260-3091:1, 
 Nov. 3, 1915.) 
 
 The fact that the loss of numbers which an 
 officer is required to suffer under section 1505, as 
 amended, is to "equal the average six months' 
 rate of promotion to the grade for which said 
 officer is undergoing examination" would seem 
 to indicate that the loss of nmnbers is to be 
 suffered in the higher grade, while a loss of 
 numbers in his present grade and an immediate 
 promotion to a higher grade would be of no 
 practical effect so far as loss of numbers is con- 
 cerned. It would seem, therefore, that an 
 assistant surgeon advanced under such cir- 
 cumstances to the lowest number in the grade 
 to which he is thus promoted must be held 
 stationaiy at that nmnber until the officers be- 
 low him, corresponding to the niunbers he has 
 lost, have been advanced over him in said 
 higher grade. (Toulon v. U. S., 51 Ct. Cls., 
 87, 96; see also file 26280^68, Mar. 18, 1916.) 
 
 The loss of numbers is determined by the 
 condition of the Navy Register at the date the 
 suspension becomes effective; thus, where an 
 officer is required to lose nine numbers in con- 
 sequence of his failure, these numbers are rep- 
 resented by the nine officers who were next 
 below him m grade on the date that his suspen- 
 sion went into effect, and if any casualties 
 occur within these nine numbers he would 
 benefit thereby. (File 26260-3091:1, Nov. 3, 
 1915.) 
 
 Under the amendment of March 11, 1912, 
 only promotions actually made during the five 
 
 calendar years in question should be taken as 
 a basis for determining the "average six months' 
 rate of promotion" during said years. It 
 would be contrary to the letter and spirit of 
 the law to take as a basis "the rate of duly 
 slated promotions, which would include both 
 actual promotions made and promotions that 
 were due to be made but were not owing to 
 failure of officers to qualify therefor, " resigna- 
 tions, retirements, etc. The latter method 
 would not furnish a correct basis for determin- 
 ing the average "rate of promotion," which 
 necessarily implies the consummated advance- 
 mentof officers to higher grades. (File 26521-40, 
 June 11, 1912.) 
 
 Ensign A became due for promotion, was ex- 
 amined and suspended in the latter part of the 
 fiscal year 1911; Ensign B, his junior, became 
 due for promotion, was examined, and sus- 
 pended in the early part of the fiscal year 1912. 
 In consequence it was necessary to count differ- 
 ent periods of five years in computing the loss 
 of numbers which these officers were to sustain. 
 As a result. Ensign A lost 34 numbers, while 
 Ensign B, his junior, lost only 33. This pro- 
 duced the apparent injustice of making Ensign 
 B rank Ensign A in the higher grade when pro- 
 moted, thereljy l)ecoming senior to the officer 
 who originally ranked him. However, this re- 
 sult necessarily follows from the wording of the 
 law, and can be remedied only by Congress. 
 (File 26521-40, June 11, 1912.) 
 
 Date of rank on promotion after sus- 
 pension. — ^An officer due for promotion after 
 a specified period of service, wdio is suspended 
 from promotion for a period of six months 
 should, if afterwards promoted, be given rank 
 from a date six months later than that on which 
 he first became due for promotion. (File 
 26260-2605:2, Aug. 17, 1915.) 
 
 An officer due for promotion \ry reason of 
 seniority who is suspended from promotion .for 
 a period of six months should, if afterwards pro- 
 moted, begivenrank from tliedateon which the 
 vacancy occurred which he is promoted to fill, 
 provided such vacancy did not occur during the 
 six months' period of suspension. (File 26260- 
 2605:2, Aug. 17, 1915.) 
 
 An officer due for promotion by reason of 
 seniority who is suspended from promotion for 
 a period of six months should, if afterwards pro- 
 moted, be given rank from the date that the pe- 
 riod of suspension expired, where the vacancy 
 which he is promoted to fill occurred during the 
 six months' period of suspension. (File 26260- 
 2605:2, Aug. 17, 1915.) 
 
 In the case of ensigns who are promoted in due 
 course after three years' service from date of 
 commission as such, it is proper in routine cases 
 that the date from which they are to take rank 
 on promotion to 1 ieutenant ( j unior grade ) should 
 be three years later than the date from which 
 they took rank in the grade of ensign. Where, 
 however, an ensign fails on examination for pro- 
 motion it is expressly stipulated by law that he 
 "shall be suspended from promotion for a pe- 
 riod of six months from the date of approval of 
 said examination." The effect of this is to 
 postpone the officer's right to promotion for a 
 period of six months, and consequently to fix a 
 later date from which he is to take rank if finally 
 promoted than would have been the case had he 
 
 54641°— 22- 
 
 -47 
 
 731 
 
Sec. 1505. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 qualified in due course when first examined. 
 If the first examination of such officer has been 
 (h^hiyed without fault on his part, in justice and 
 fair dealing the date from which he should take 
 rank when ultimately promoted may be fixed as 
 six months from the date from which he would 
 have been promoted had he been found quali- 
 fied when first examined, or as three years and 
 six months later than the date from which he 
 took rank in the grade of ensign. But in no case 
 could an officer who has been suspended from 
 promotion on account of failing in his profes- 
 sional examination be entitled to take rank 
 from the same date when promoted to the higher 
 grade as though he had not been suspended. 
 (File 26268-475, May 14, 1915.) 
 
 Two classes of cases arise under this section, 
 \iz, first, those in which promotions depend 
 upon length of servdce, and, secondly, those in 
 which promotions depend upon seniority. In 
 file 26266-475, of May 14, 1915, it was held that 
 the effect of section 1505 as applied to the case 
 of an ensign who failed on examination for pro- 
 motion to lieutexiant (junior grade) was to delay 
 the right of such ensign to promotion for a period 
 of six months, and that when ultimately pro- 
 moted he is entitled to take rank only from the 
 date he completed three years and six months 
 eervace in the grade of ensign. On reconsidera- 
 tion this conclusion affirmed as the only inter- 
 pretation of the law which would give effect to 
 its purpose and letter as applied to these cases 
 in which promotions depend upon length of 
 service and not upon the officer's position in the 
 Na\-y list. As to the second class, where pro- 
 motions are made by seniority, if the loss of 
 numbers is executed by reducing the officer in 
 the lower grade [see above, ''Method of execut- 
 ing loss of numbers "] his right to promotion de- 
 pends upon the occurrence of a vacancy after 
 he has again reached the top of the list, and he 
 should be promoted to fill said vacancy, if 
 found qualified, and should take rank froru the 
 date of its occurrence. (File 26260-2605:2, 
 Aug. 17, 1915.) 
 
 Should an officer due for promotion by senior- 
 ity to a grade limited in numl^er by law, be sus- 
 pended from promotion and the loss of numbers 
 in his case executed by reducing him in the 
 lower grade [see above, "'Method of executing 
 loss of numbers "], he might again reach the top 
 of his grade prior to the expiration of his six 
 months' period of suspension; in such event, 
 the next vacancy occurring after he reaches the 
 top of the list should be held open for him iintil 
 the expiration of his period of suspension; but 
 should he be promoted at the end of that period 
 he should take rank from the date that his six 
 months' period of suspension expired. In other 
 words, the officer's promotion in such case de- 
 pends upon his position in his grade; when he 
 reaches the top of the list he is entitled to the 
 next vacancy, whether or not his six months' 
 period of suspension has expired; however, 
 under the express terms of the law his promo- 
 tion can not actually be accomplished during 
 the period of six months and inasmuch as the 
 delay in his examination is due to fault on his 
 part and therefore is not a case covered by 
 section 1562, Revised Statutes, when he is in 
 fact promoted the earliest date which he may 
 be given in his commission is that on which 
 
 he became eligible for reexamination. (File 
 26260-2605:2, Aug. 17, 1915.) 
 
 \Mien an oflicer due for promotion by sen- 
 iority to a grade limited in number by law is 
 suspended and subsequently is promoted to 
 fill a vacancy occuning after the expiiation of 
 his period of suspension, there is no wan-ant of 
 law for gi\'ing him a date of rank prior to the 
 occiuTence of such ^•a(•ancy. An officer may 
 be given any date subsequent to the occurrence 
 of the vacanc y which he is promoted to fill but 
 can not be given a date prior thereto. Accord- 
 ingly in such cases, where the vacancy occurs 
 duiing the six months' period of suspension, and 
 the officer's loss of numbers has been executed 
 by reducing him in the lower grade [see above, 
 "Method of executing loss of numbers"], his 
 date of promotion may legally be fixed to cor- 
 respond with the date that the period of sus- 
 pension expired, but where the vacancy 
 occuiTed after the expiration of the six months' 
 period of suspension, the officer when promoted 
 can not legally be given a date prior to the 
 occitrrenceof the vacancy. (File 26260-2605 :2, 
 Aug. 17, 1915.) 
 
 An officer became due for promotion after 
 three years' service in gi'ade. At that time 
 he was absent on distant duty, by reason of 
 which his examination for promotion was de- 
 layed for a period of about ten months. He 
 then failed professionally and was suspended 
 from promotion for six months, after which he 
 was examined, found qualified, and promoted: 
 Held that under section 1505, Revised Statutes, 
 as amended, the officer when promoted was 
 entitled to take rank in the higher gi'ade from 
 a date six months later than that on which he 
 originally became due for promotion. "We 
 should not impose a greater penalty than the 
 statute fixes, as would be done if he is charged 
 with the long delay for which he was not at 
 fault. " (Toiilon v. U. S., 51 Ct. Cls., 87, 96.) 
 
 The Court of Claims can not accept the view 
 of the Comptroller of the Ti'easmy that because 
 of an officer's failure to qualify professionally 
 in his first examination, and because of the 
 suspension for six months demanded by section 
 1505, as amended, he became ineligible for 
 promotion until after he had successfully passed 
 a second examination and that therefore he 
 was not and could not be advanced in grade or 
 rank pursuant to law prior to that date. This 
 construction of the statute would not only 
 suspend the officer's right to promotion for the 
 six months stated in the act but also would 
 defeat or wipe out the fact that he had been 
 eligible to promotion for some ten or more 
 months extending from the termination of his 
 three years' ser^•ice to the beginning of the six 
 months' period of suspension, though the delay 
 in his first examination was owing to an 
 enforced absence and was wholly without his 
 fault. On the contraiy we think that the 
 officer became eligible for promotion to the 
 higher grade and rank when he had sei'\'ed 
 three years in the grade of assistant surgeon 
 and there was added to that term a period of 
 six months, covering the time of his suspen.sion 
 under the statute. In other words on account 
 of his failure to cjualify when first examined 
 the length of ser^■ic■e in his grade requii'ed of 
 him before he was eligible for promotion to the 
 
 732 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1505. 
 
 next higher grade was the equivalent of three 
 years and six months instead of the three years 
 which would otherwise have sufficed and in 
 fixing the date of his eligibility to promotion 
 in rank these three years and six months are 
 properly taken as a continuous period of time. 
 (Toulon V. U. S., 51 Ct. Cls., 87, 90; see in 
 this connection 22 Comp. Dec, 623, disallowing 
 claim of S. R. Canine for pay as lieutenant 
 (junior grade) from date stated in his commis- 
 sion, and 52 Ct. Cls., 532, allowing said claim 
 without opinion.) 
 
 The requirement of the statute that the 
 suspension shall be for a period of six months 
 ' 'from the date of approval of said examination " 
 is evidently intended to remove any uncer- 
 tainty which would otherwise arise if the ques- 
 tion were whether the suspension dated fa-om 
 the time of examination or the approval by 
 the President of the examining board's report. 
 A considerable time could arise between these 
 two events, and the statute makes certain the 
 date. Manifestly such suspension should op- 
 erate equally upon the officer's actual appoint- 
 ment and any advancement in grade or rank. 
 But it would operate unequally if he should 
 be suspended from appointment for six 
 months and suspended from advancement in 
 grade or rank for the sixteen months between 
 the date when he first became eligible and the 
 time of his reexamination. The six months' 
 period of suspension can operate equally on the 
 two features of promotion by withholding in 
 one instance any appointment during the said 
 period, and in the other instance by mo\'ing 
 forward the date of eligibility to promotion 
 for six months, or, what amounts to the same 
 thing, by adding six months to the three years of 
 ser\'ice. The officer was eligible to promotion 
 when he took his first examination, and he 
 was still eligible to promotion because of his 
 original three years' 8er\ice when the time 
 for his reexamination arrived; but he had 
 been requii'ed to serve six months longer, and 
 the length of service exacted in his case was 
 three years and six months. (Toulon v. U. S., 
 61 Ct. Cls., 87, 94, 95, 96.) 
 
 In the Toulon case (51 Ct. Cls., 87), the court 
 decided against the claim of the officer for pay 
 from the date stated in his commission for the 
 reason that the date so stated was not three 
 years and six months after the date he originally 
 became due for promotion, but was approxi- 
 mately three years and four months after said 
 date. Subsequently a new commission was 
 issued to the officer with date of rank three 
 years and six months after the date that he 
 originally became due for promotion, and the 
 Court of Claims thereupon allowed his claim 
 for pay fi'om the date stated in said commission. 
 (Toulon V. U. S., 52 Ct. Cls., 333; see file 
 26280-68, Mar. 18, 1916. )_ 
 
 An officer was commissioned as ensign to 
 rank from June 6, 1910, and was commissioned 
 as lieutenant (junior grade) to rank from June 
 6, 1913, although in the meantime he had been 
 suspended from promotion for six months 
 pursuant to section 1505 as amended. Upon 
 the facts stated he was not legally entitled to 
 rank from June 6, 1913, in the grade of lieu- 
 tenant (junior grade), but his right to promotion 
 under the law did not accrue until December 6, 
 
 1913. (File 26268-475, May 14, 1915.) Where 
 an officer is promoted after six months' suspen- 
 sion, there is no legal obstacle to assigning him 
 a date later than that from which ofiicers below 
 him take rank; imder such circumstances sec- 
 tion 1505, as amended, fixes the position to 
 which the officer is entitled in the higher grade 
 regardless of the date stated in his commission ; 
 but in such, case a reference note in the Navy 
 Register to section 1505, as amended, would be 
 desirable as explaining his status in this respect. 
 (File 26260-2605:2, Aug. 17, 1915; 26268-475, 
 May 14, 1915.) 
 
 One year's pay when dropped from the 
 service. — Section 1454, Revised Statutes, pro- 
 \dding for one year's pay to officers wholly 
 retired from service, has no application to the 
 case of an officer of the Navy who is dropped 
 from the service under section 1505, Revised 
 Statutes, because of his professional disqualifi- 
 cations to perform the duties of the position 
 for promotion to which he has been examined. 
 There is no provision of law authorizing the 
 payment of one year's pay in such case. (12 
 Comp. Dec, 97;" Elmer v. U. S., 45 Ct. Cls., 
 90. Note. — These decisions were rendered 
 prior to the amendment of sec. 1505, R. S.) 
 
 Section 1505, as amended, providing that 
 where an officer of the Navy fails in an exami- 
 nation for promotion in the way specified there- 
 in he shall be dropped from the service with 
 not more than one year's pay, is indefinite, and 
 authority is not given to the accounting officers 
 to determine how much pay, if any, shall be 
 received by said officer; but the discretion 
 in determining the amount is left to the Exec- 
 utive through the administrative department. 
 In this case the President's approval of the 
 examining board merely directs that the offi- 
 cer ' 'be dropped from the service, in accord- 
 ance with the provisions of section 1505 of the 
 Revised Statutes, " without directing that 
 any pay be given him. Therefore, no specific 
 direction as to pay havdng been given, none 
 can be allowed by the accounting officers. (18 
 Comp. Dec, 9'22.) 
 
 Special act of Congress restoring rank. — 
 
 TVTien a lieutenant (junior grade) has been 
 suspended from promotion under section 1505, 
 and subsequently passes a reexamination and 
 is promoted to fill a vacancy, a later act of 
 Congress directing the Secretary of the Navy 
 to restore him to his original number to receive 
 rank from the time when his loss of date began 
 does not entitle such officer to the pay of the 
 higher grade during the period of suspension 
 from promotion. (16 Comp. Dec, 557.) 
 
 Suspension of action by President dis- 
 tinguished from suspension from promo- 
 tion. — The suspension of an officer from pro- 
 motion for one year mider section 1505, or for 
 for four months under that section as amended 
 by the act of March 11, 1912 (37 Stat., 73), 
 because of not having been foimd professionally 
 qualified for promotion, is a suspension occuning 
 after action by the President appro\'ing such 
 finding of disqualification, and is therefore 
 clearly differentiated from the President's 
 suspension of action appro\dng or disapproving 
 the findings of the board for the periods of one 
 year and six months, respectively, prior to his 
 
 733 
 
Sec. 1606. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 a]>proval thereof. (22 Comp. Dec, 153; com- 
 jnire Ilooj.er v. V. S., 53 Ct. ('Is., 90.") 
 
 Delay in holding' examination. — It is 
 inijx)rtaiit that in all ca.'^es where it is not 
 absolutely impossible to do bo examinations for 
 proniot ion be held prior to the ocourrenre of the 
 vacancy, as is required by express provisions 
 of la%\' with reference to promotions in the 
 Army and Marine Corps. (File 2(i2(10-2605:2, 
 Aug.' 17, 1915.) 
 
 Revocation of President's action. — See 
 note to section 1456, Revised Statutes, imder 
 "Revocation of President's action. " 
 
 Section 1505, as amended, pro\'ides that any 
 officer to whom that section applies, if found 
 not professionally qualified, ''s/!«/^ be sus- 
 pended "from promotion for a period of six 
 months from the date of approval of said exam- 
 ination, and shall suffer a loss of numbers equal 
 to the a^'erage six months' rate of ]>romotion to 
 the grade for which said officer is imdergoing 
 examination during the five fiscal years next 
 preceding the date of approval of said examina- 
 tion, and ujwn the termination of said suspen- 
 
 sion from promotion he shall be reexamined, 
 and in case of his failure upon such reexamina- 
 tion he shall be dropped from the service with 
 not more than one year's pay." This legisla- 
 tion is construed by the Judge Advocate Gen- 
 eral as vesting no discretion in the Executive 
 with reference to the suspension of an officer 
 who has l)een found not professionally qualified 
 for promotion, but as mandatory that under 
 such circumstances the officer shall be sus- 
 pended for the period stated ; after approval of 
 the finding of the board, no power exists in the 
 Secretary of the Navy to review same and to 
 revoke his approval. (File 26260-6133, Apr. 
 26, 1919; for contrary precedents, see record 
 of examining board in case of I>ieut. (junior 
 grade) Harold W. Scofield, and note to sec. 1456, 
 R. S., imder "Revocation of President's 
 action.") 
 
 For other cases, see note to section 1500, Re- 
 vised Statutes, under "Correction of action 
 taken where officer not accorded the right to be 
 present." 
 
 Sec. 1506. [Advancement in number.] Any officer of the Navy may, by 
 and with the advice and consent of the Senate, be advanced, not exceeding 
 thirty numbers in rank, for eminent and conspicuous conduct in battle or 
 extraordinary heroism; and the rank of officers shall not be changed except m 
 accordance with the provisions of existing law, and by and with the advice 
 and consent of the Senate. — (21 April, 1864, c. 63, s. 6, v. 13, p. 54. 24 Jan., 
 1865, c. 19, s. 1, V. 13, p. 424.) 
 
 This section was expresslv amended and reen- 
 acted by act of June 17, 1878 (20 Stat., 144), 
 the amendment consisting in the addition 
 of the words follo\\ang the semicolon as 
 reproduced above. 
 By sections 1605 and 1606, Re\ised Statutes, 
 provision is made for the Marine Corps sim- 
 ilar to sections 1506 and 1507, relating to the 
 Navy; by acts of March 3, 1901 (31 Stat., 
 1108), and June 16, 1906 (34 Stat., 296), 
 officers so ad\anced are to be carried as 
 additional to the numbers of each grade in 
 which they serve. Other provisions for 
 advancement of officers are contained in 
 sections 1508-1510, Revised Statutes. Re- 
 tired officers detailed for the command of 
 squadrons or single ships in time of war 
 may be restored to the active list if they 
 receive a vote of thanks of Congress for 
 their services and gallantry in action 
 against the enemy (sec. 1465, R. S.). 
 Advancement of officer not subject to 
 revision by subsequent administration. — 
 A rational interpretation of this section is that 
 Congress has left to the discretion of the Presi- 
 dent the determination of what acts of heroism 
 should be recommended to the Senate for re- 
 ward, and in pro\'iding that the Senate must ad- 
 vLse and consent to the advancement has indi- 
 cated the only forum which may inquire into 
 the wisdom with which that discretion has been 
 exercised. The nomination for the advance- 
 ment being in regular form, as also the resolution 
 of the Senate and the commission, and the ad- 
 vancement being an accomplished fact and 
 witliin the terms of section 1506, it is not in the 
 
 power of the President to inquire what was the 
 act of heroism, or when and where it was commit- 
 ted, which induced his predecessor and the 
 Senate to advance the officer in numbers; their 
 action in that matter is conclusive upon the 
 executive department and therefore is not sub- 
 ject to reexamination or re\dsion by the Presi- 
 dent. (17 Op. Atty. Gen., 76. In this case an 
 officer of the Pay Corps was twice advanced 15 
 numbers and it was afterwards insisted that 
 both advancements were for the same act of 
 heroism and that the eminent and conspicuous 
 conduct in battle occurred at such a time as 
 would not entitle the officer to the benefits of 
 the law.) 
 
 Date of vacancy created by advancement 
 to liiglier grade. — The advancement of a 
 commander to the grade of captain under sec- 
 tion 1506, to rank from August 10, 1898, did not 
 create a vacancy in the grade of commander 
 until December 14, 1898, when such advance- 
 ment was confirmed by the Senate. A lieutenant 
 commander was promoted to be a commander in 
 the place of the aforesaid officer, also with rank 
 from August 10, 1898. As there were no vacan- 
 ( ies on August 10, 1898, when these officers took 
 rank according to their commissions, the act of 
 June 22, 1874 (18 Stat., 191; see sec. 1561, 
 R. S.), did not apply so as to entitle them to 
 pay in the higher grades fi'om the time they 
 took rank, respectively. (23 Op. Atty. Gen.", 
 30.) 
 
 Date increased pay commences in higher 
 grade. — ^The advancement of an officer to a 
 higher grade pursuant to section 1506, Revised 
 Statutes, is not a promotion in course to fill a 
 
 734 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1506. 
 
 vacancy, within the meaning of section 1561, 
 Revised Statutes, allo^ndng increased pay on 
 promotion from date of rank; and accordingly 
 the increased pay in snch cases commences, not 
 at the date from which he takes rank in the 
 higher grade but at the date of his appointment 
 as an officer of that grade. (17 Op. Atty. Gen., 
 319; see also 23 Op. Atty. Gen., 30, noted above, 
 and Young v. U. S., 19 Ct. Cls., 145. Aa to 
 pay from date of rank in all cases of officers 
 advanced pursuant to law,.see act of Mar. 4, 1913 , 
 37 Stat., 892.) 
 
 Advancement under ad interim commis- 
 sion. — The advancement and promotion of 
 officers pursuant to section 1506, Revised Stat- 
 utes, can not be accomplished by the President 
 alone, and ad interim commissions issued to 
 such officers did not create vacancies in their 
 offices, as such advancement and promotion can 
 be only with the advice and consent of the Sen- 
 ate. (23 Op. Atty. Gen., 30, approving: 6 Comp. 
 Dec, 7; see also Peck v. U. S., 39 Ct._ Cls., 125.) 
 
 The last clause of section 1506 forbids that the 
 rank of any officer be changed except with the 
 advice and consent of the Senate. Therefore 
 as the advancement of certain officers under 
 section 1506 would change their respective 
 grades and ranks, it could not be made by the 
 President alone. The Constitution, Article II, 
 section 2, authorizing the President to fill up all 
 vacancies that may happen dming the recess of 
 the Senate, does not confer upon the President 
 the power to create such vacancies. (23 Op. 
 Atty. Gen., 30.) 
 
 Rear Admii-al William T. Sampson was ad- 
 vanced eight nvmibers and appointed a rear- 
 admii-al in the Navy under the provisions of sec- 
 tion 1506, Revised Statutes, from the 10th day 
 of August, 1898, and an ad inteiini commission 
 was issued to him from that date. This ad- 
 vancement the Senate failed to confirm prior to 
 adjournment. Advancement in numbers 
 under this section does not create a vacancy 
 within the meaning of the Constitution from the 
 time when the President decides to recommend 
 such advancement, nor is any vacancy created 
 prior to the date when the Senate concurs in the 
 President's recommendation. Accordingly held 
 that no authority exists for pajdng him as rear 
 admiral from the date when he was commis- 
 sioned as such, the Senate not having consented 
 to the advancement. (6 Comp. Dec., 7.) 
 
 Consent of the Senate indirectly 
 given. — A commander in the Navy, Bowman 
 II. McCalla, was nominated by the President 
 for advancement five numbers and appointed 
 as a captain; at the same time a lieutenant 
 commander, .lohn E. Pillsbury, was nominated 
 ■'to be a commander from the 10th day of 
 August, 1898, vice Commander Bowman H. 
 McCalla, advanced and promoted;" the Senate 
 confirmed the nomination of Pillsbury ■without 
 acting upon the nomination of McCalla. Held, 
 that the confirmation of Pillsbury operated as 
 the adA'ice and consent of the Senate to the 
 advancement and promotion of McCalla. No 
 particular form, set phrase, or language is 
 recjuired by which the Senate shows its assent 
 to a presidential appointment; the President 
 had already nominated McCalla to be a captain 
 and all that was necessary to make him such 
 and to cause a vacancy in his office of com- 
 
 mander was that the Senate consent thereto; 
 and when the Senate confirmed another officer, 
 expressly asserting that it was to fill the place 
 of McCalla, promoted, and which promotion 
 could not be Avdthout its consent, it necessarily 
 and thereby asserted its consent to his pro- 
 motion; as the Senate could not increase the 
 number of commanders, its confirmation of 
 Pillsbury to be a commander necessarily either 
 removed McCalla or promoted him, and the 
 Senate said that it was in the place of McC-alla 
 advanced and promoted. (23 Op. Atty. Gen., 
 30.) 
 
 Capt. Francis J. Iligginson was nominated 
 by the President for adA-ancement in numbers 
 pursuant to section 1506, so as to place him at 
 the head of the list of captains; he was then 
 nominated for promotion to commodore "vice 
 Commodore Winfield S. Schley, advanced and 
 promoted," to rank from August 10, 1898. On 
 December 14, 1898, the Senate confirmed Capt. 
 Higsinson's promotion to the grade of com- 
 modore, but took no action upon the proposed 
 advancement in numbers, either in his case or 
 that of Commodore Schley. The confirmation 
 of Capt. Higginson's promotion not only made 
 him a commodore from the date of the Senate's 
 action, but in effect advanced Conmiodore 
 Schley so as to make a vacancy which the 
 promotion operated to fill. (8 Comp. Dec, 7; 
 see also 8 Comp. Dec, 302.) 
 
 Capt. Francis J. Iligginson was nominated by 
 the President for advancement in numbers 
 pursuant to section 1506, so as to place him at 
 the head of the list of captains; he was then 
 nominated for promotion to commodore to fill 
 a vacancy. On December 14, 1898, the Senate 
 confirmed Capt. Higginson's promotion to the 
 grade of commodore, but took no independent 
 action upon the nomination for his advance- 
 ment in numbers in the grade of captain. Under 
 the law as construed by the Navy Department 
 Capt. Higginson was not entitled to and there 
 was no authority for his promotion to be a com- 
 modore at the time he was so promoted except 
 according to seniority; and as he would not be 
 at the head of the captain's grade, entitled by 
 seniority to promotion to commodore, imless 
 the Senate concurred in his advancement in 
 numbers in the grade of captain, the Navy 
 Department was of opinion that when the 
 Senate confirmed the promotion of Higginson 
 to fill a vacancy to which he could only be 
 entitled upon its confirmation of his advance- 
 ment in numbers, it necessarily and thereby 
 asserted its consent to his advancement in 
 numbers: ZieW, that "it must be assumed that 
 the Senate in confirming the nomination of 
 Capt. Higginson to be a commodore intended 
 to do ever^-thiiig necessary to that confirmation, 
 and that it intended to act strictly in accord- 
 ance with law;" accordingly, when the Senate 
 confirmed Capt. Higginson's nomination to be 
 a commodore it thereby consented to and con- 
 firmed his nomination for advancement in 
 numbers in the grade of captain, which was 
 necessary to legally accomplish his promotion 
 to the grade of commodore. (8 Comp. Dec, 
 302, modifj-ing 8 Comp. Dec, 7.) 
 
 Loss of pay as result of advancement. — 
 Commander Bowman H. McCalla, advanced in 
 numbers under section 1506 so as to be a captain, 
 
 735 
 
Sec. 1609. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Was not entitled to the pay of captain from 
 Aupuat 10, 18!).S, the date stated in his com- 
 mission, but only from December 14, 1898, 
 when the Senate indirectly consented to his 
 adAancement, this rotwithstanding the fact 
 that in the meantime a vacancy occurred in the 
 prade of captain by reason of retirement for 
 which Commander McCalla would have been 
 eligible by seniority had he not been advanced 
 under section 1506, and which would have 
 entitled him to increased pay as captain from 
 a date prior to December 14, 1898; and in fact an 
 ofiicer junior to Commander McCalla was pro- 
 moted to said vacancy with pay from a date 
 prior to that on which Commander McCalla was 
 held entitled. It thus happened that the 
 officer intended to be rewarded was in effect 
 punished by the postponement of his pay as cap- 
 tain to a later date than the date from which he 
 would have been promoted in due course; while 
 there is much equity in this consideration, it 
 can not affect the results of the transaction 
 
 which actuallv occurred. (7 Comp. Dec, 
 865. ) 
 
 Precedence of ofl&cer advanced in num- 
 bers. — Wliere an olhcer is advanced above 30 
 officers, who were his semors, it is convenient 
 to insert in his commission a date between that 
 of the commission of the highest of the 30 officers 
 whom he is to outrank and that of the lowest 
 next above him, in order to indi( ate his position 
 and rank with reference to the other officers 
 of his grade. This might be otherwise 
 expressed, to vni, by inserting the names of the 
 two officers between whom he is to take his new 
 rank. However, while the commission may 
 thus be given a retroactive effect for purposes 
 of precedence, the "date of commission" in 
 such cases for purposes of computing longevity 
 pay imder the statute which says "five yeara 
 after date of commission," is the true date of 
 the instrument, which is the day of its execu- 
 tion. (Young V. U. S., 19 Ct. Cls., 145, 152; 
 see in this connection note to sec. 1467, R. S.) 
 
 Sec. 1607. [Promotion when grade is full.] Aiiy officer who is nominated 
 to a liigher grade by the provisions of the preceding section, shall be promoted, 
 notwithstanding the number of said grade may be full; but no further promo- 
 tions shall take place in that grade, except for like cause, until the number is 
 reduced to that provided by law. — (24 Jan., 1865, c. 19, s. 2, v. 13, p. 424. 22 
 June, 1874, c. 392, v. 18, i). 191.) 
 
 See note to section 1506, Revised Statutes. 
 
 Additional number officers in grade of 
 rear admiral. — On February 26, 1901, Capts. 
 Robley D. Evans and Henry G. Taylor were 
 confirmed by the Senate for advancement in 
 numbers and promotion to rear admiral pur- 
 suant to section 1506, Revised Statutes. Under 
 the law these officers are not to be treated as 
 occupying numbers among the 18 rear admirals 
 allowed for the grade, but are carried as addi- 
 tional to the numbers of that grade. The ad- 
 dition to the grade of rear admiral by reason of 
 advancement imder section 150G does not ad- 
 vance the officers already in the lower half of 
 that grade to the upper half, so as to affect their 
 pay. The act of March 3, 1899, section 7 (30 
 Stat., 1005), fixing the pay of the lower half of 
 the grade of rear admiral at the same rate as that 
 received by brigadier generals of the Army, had 
 particular reference to the 9 lower numbers of 
 the 18 rear admirals provided for in that act. 
 
 Accordingly held that a rear admiral of the 9 
 lower numbers was not advanced in numbers 
 by the addition to the grade of rear admiral of 
 Evans and Taylor but is still in the 9 lower 
 numbers of that grade as constituted by the act 
 of March 3, 1899, notwithstanding that as a re- 
 sult of these appointments there are more than 
 9 rear admirals lower in number than he. (8 
 Comp. Dec, 7.) 
 
 The advancement of an officer in the grade 
 of rear admiral from the lower half of that grade 
 to the upper half is a promotion within the 
 meaning of the act of March 3, 1901 (31 Stat., 
 1108). Rear Admiral Evans, being carried as 
 an additional number pursuant to the act of 
 March 3, 1901, is advanced contemporaneously 
 with the officer next above him in rank and 
 should be paid as a rear admiral of the upper 
 half from the date when the officer next above 
 him is so advanced in regular coiu^e. (8 Comp. 
 Dec, 689.) 
 
 Sec. 1508. [Officers receiving thanks of Congress.] Any line officer, whether 
 of volunteers or of the regular Navy, may be advanced one grade, if, upon recom- 
 mendation of the President by name, he receives the thanks of Congress for 
 higldy distinguished conduct in conffict with the enemy or for extraordinary 
 heroism in the line of his profession. — (16 July, 1862, c. 183, s. 9, v. 12, p. 584, 
 24 Jan., 1865, c. 19, s. 2, v. 13, p. 424. 25 July, 1866, c. 231, s. 1, v. 14, p. 222.) 
 
 Thanks of Congress, effect of: See sections 1365, 1446, 1465, 1509, 1510, Revised Statutes. 
 
 Sec. 1509. [Effect of vote of thanks.] A vote of thanks by Congress to any 
 officer of the Navy shall be held to affect such officer only; and whenever, as an 
 incident thereof, an officer who would otherwise be retired is retained on the 
 active list, such retention shall not interfere with the regular promotion of others 
 
 736 
 
The Navy. Pt. 2. REVISED STATUTES. Sec. 1510. 
 
 who would otherwise have been entitled by law to promotion. — (1 July, 1870, 
 Res. 96, s. 1, V. 16, p. 384.) 
 
 See note to preceding section, and section 1446, Revised Statutes. 
 
 Sec. 1510. [Vacancies occasioned by death, &c., of oflQicers thanked.] No 
 promotion shall be made to fill a vacancy occasioned by the final retirement, 
 death, resignation, or dismissal of an officer who has received a vote of thanks, 
 unless the number of officers left in the grade where the vacancy occurs shall be 
 less than the number authorized by law. — (1 July, 1870, Res. 96, s. 1, v. 16, 
 p. 384.) 
 
 See note to section 1508, Revised Statutes. 
 
 737 
 
CHAPTER FIVE. 
 
 THE NAVAL ACADEMY. 
 
 Sec. 
 
 1511. Where established. 
 
 1512. Title of students. 
 
 1513. Number of midshipmen. 
 
 1514. Nomination of candidates. 
 
 1515. Examination of candidates. 
 
 1516. Second recommendation. 
 
 1517. Qualifications. 
 
 1518. Appropriations, how applied. 
 
 1519. j\Iidshipmen found deficient. 
 
 1520. Academic course. 
 
 Sec. 
 
 1521. Appointments on graduation. 
 
 1522. Cadet engineers. 
 
 1523. Number and appointment of. • 
 
 1524. Academic course of. 
 
 1525. Examinations of. 
 
 1526. Studies not to be pursued on Sunday. 
 
 1527. Storekeeper at the Academy. 
 
 1528. Professors of ethics, Spanish, and draw- 
 
 ing. 
 
 Sec. 1511. [Where established.] The Naval Academy shall be established 
 at Annapolis, in the State of Maryland. — (21 May, 1864, c. 93, s. 4, v. 13, p. 85.) 
 
 Historical note. — The first statutory pro- 
 vision for a naval academv was made by act 
 of Congress, August 10, 1846 (9 Stat., 100, 101), 
 when the modest sum of $28,200 was appro- 
 priated "for repairs, improvement, and instruc- 
 tion at Fort Severn, Annapolis, Maryland." 
 Prior to that time instruction had been given 
 to midshipmen in the naval sersdce in a 
 desultory manner — sometimes on shipboard and 
 sometimes at various places on snore when 
 they were not on sea duty, and this seems 
 to have been done without direct authority 
 of Congress, but by what a writer has termed 
 "wise departmental legislation." During the 
 first few years of the Naval Academy its stu- 
 dents were taken directly from midsliipmen in 
 the Na%'j% some of whom had been several 
 years in the sendee. The act of January 2, 
 1813 (2 Stat., 789), authorizing the construc- 
 tion of four 74-gun sliips, provided that each 
 of them should carry a schoolmaster, and each 
 ship had 20 midshipmen who were presumably 
 under the instruction of this schoolmaster. 
 Our Naval Academy is a growth and an evo- 
 lution, and in that respect somewhat different 
 from the Military Academy. Its first pupils 
 were officers already in the naval servdce, 
 holding their warrants from the President. 
 They have gradually ceased to be midshipmen 
 in the active sendee belonging to the line, and 
 are now naval students the same as cadets at 
 the ^lilitarj' Academy are military students. 
 (Weller v. U. S., 41 Ct. Cls., 324.) 
 
 Regulations of the Naval Academy. — 
 The Naval Academy, whose existence is due 
 to a wise act of mere departmental adminis- 
 tration on the part of Secretary Bancroft in 
 1845, owes its organization substantially to 
 regulations adopted from time to time by him 
 and his successors. The act of July 16, 1862, 
 chapter 183, is the earliest legislation that 
 concerns the interior management of the 
 Academy, and what has been since enacted 
 touches that management only here and there 
 incidentally. Inasmuch, therefore, as Congress 
 has authorized the successive heads of the 
 
 Navy Department to govern the academy by 
 regulations, and has interfered therewith only, 
 so to say, desultorily, the rule of statutory 
 construction, which forbids any disturbance of 
 previously existing statutory or common law 
 by a new statute further than is necessary to 
 its reasonable operation, must be applied here 
 so as to prevent any unnecessary disturbance 
 of previously existing regidations by statutory 
 enactment. (15 Op. Atty. Gen., 637.) 
 
 Where regulations are issued by the Secretary 
 of the Navy relating to examinations at the 
 Naval Academy, it can not for a moment be 
 doubted that the existence of such regulations 
 was known to Congress when enacting legis- 
 lation referring to the "final graduating ex- 
 amination " of midshipmen, and they afford 
 a clear explanation of the use by Congress in 
 such legislation of the words ' ' final graduating 
 examination." (Benjamin v. U. S., 10 Ct. 
 Cls., 474.) 
 
 The Secretarj^ of the Navy has plenaiy 
 authority over the regulations of the Naval 
 Academy. He makes the regulations and can 
 modify or change them at will, providing no 
 statute is thereby trenched upon. The reg- 
 ulations of the Naval Academy do not, strictly 
 speaking, form a part of the regulations for the 
 government of the Navy; they are not em- 
 bodied therein and do not come under section 
 1547, Revised Statutes, giving to Navy reg- 
 ulations the force of law. The regulations of 
 the academy are not directly approved by 
 the President, as are the Navy Regulations. 
 (36 J. A. G. letter book, 195, Mar. 19, 1907.) 
 
 The Naval Academy regulations are not is- 
 sued under any explicitstatute. The Academy 
 being under nav^al control is administered by 
 the Secretary of the Navy, and it is assumed 
 that he makes the regulations of the Academy 
 under his general powers as Secretary; but 
 there are certain clauses in the statutes touch- 
 ing more or less directly upon the matter, 
 such as sections 1515 and 1526, Revised Stat- 
 utes, etc. Duly formulated regulations being 
 essential to the proper administration of such 
 
 738 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1512. 
 
 an establishment as the Naval Academy, the 
 effect of the statutes on the subject is to place 
 the power of making such regulations in the 
 hands of the Secretary of the Nax'y, subject to 
 the general direction of the President. Such 
 regulations must, of course, be made in further- 
 ance and not in A-iolation or disregard of statu- 
 tory pro\asions. (36 J. A. G. letter book, 195, 
 Mar. 19, 1907; see also sec. 161, R. S., and notes 
 thereto.) 
 
 Under section 1547, Re\dsed Statutes, the 
 Secretary of the Navy, with the approval of 
 the President, may issue regulations and in- 
 structions for the Navy, and the regulations of 
 the Naval Academy pro\T.ding for the dis- 
 missal of midsliipmen were presumably made 
 pursuant to such power. (Weller v. U. S., 
 41 Ct. Cls., 324.) 
 
 Board of Visitors, to visit the Naval Acad- 
 emy, the date of the annual visit to be fixed by 
 the Secretarv of the Naw, is pro^^.ded for by 
 act of August 29, 1916 (39 Stat., 608). Said 
 
 board is to consist of 7 persons appointed by the 
 President; 4 Senators and 5 Members of the 
 House of Representatives, appointed respec- 
 tively by the Vice President and Speaker; and 
 of the chairmen of the Committees on Naval 
 Affairs of the Senate and House. 
 
 Naval Academy Band, composed of en- 
 listed men of the Navy, was authorized by acts 
 of April 12, 1910 (36 Stat., 297), and July 11,1919 
 (41 Stat., 152); see also act of May 13, 1908 (35 
 Stat. ,153), as to competition of the band as then 
 organized with lo< al civilian musicians, and act 
 of May 18, 1920 (41 Stat., 602, sec. 6), as to tem- 
 porary increase in pay. 
 
 Naval Academy Chapel. — Restrictions 
 upon use of crypt and -nindow spaces for me- 
 morials are contained in act of March 3, 1909 
 (35 Stat., 773). 
 
 Superintendent of Naval Academy. — See 
 note to section 1556, Revised Statutes, under 
 "Additional pay for special duty." 
 
 Sec. 1512. [Title of students.] The students at the Naval Academy 
 shall be styled cadet midshipmen. — (15 July, 1870, c. 295, s. 12, v. 16, p. 334.) 
 
 August 31, 1852, section 1 (10 Stat., 100), that 
 ' ' no appointment of midshipmen, acting mid- 
 shipmen, or pupil, at any naval school in the 
 Navy, shall be made, unless recommended by 
 the member of Congress representing the dis- 
 trict in which the applicant resides," etc. 
 
 Cadet-midshipmen. — Section 12 of the act 
 of July 15, 1870 (16 Stat., 321), later embodied 
 in section 1512 of the Revised Statutes, changed 
 the title of students at the Naval Academy to 
 "cadet-midshipmen." That act divided the 
 grade of midshipman on a marked and conveni- 
 ent line, and styled all below that line as cadet- 
 midshipmen, but relative to their new status it 
 was enthely silent. This might with much 
 reason be regarded, nothing to the contrary 
 appearing, as the creation of a new grade in 
 the line of the Navy for cadet midshipmen. 
 A failure, however, to enumerate it as such in 
 the list of grades in that act, and also in the 
 subsequent list of the Revised Statutes, pre- 
 cludes that construction. It left them, how- 
 ever, with the same duties, the same pay, the 
 same mode of appointment, and subject to the 
 same naval discipline and control as before. 
 WTiatever doubt might arise as to the particular 
 status of students under the new title, it is 
 quite certain that they still constituted, in 
 some capacity, a part of the Navy. (Baker v. 
 U. S., 23 Ct. Cls., 181; affirmed, 125 U. S., 
 646.) 
 
 After the 12th section of the act of July 15, 
 1870 (16 Stat., 334), students at the Naval 
 Academy were to be styled "cadet-midship- 
 men," and after graduation were to be appoint- 
 ed midshipmen and promoted to the grade of 
 ensign as vacancies might occur. Prior to 
 that act students at the Naval Academy were 
 styled midshipmen. The form of appoint- 
 ment was the same before and after the act; in 
 both cases it was signed by the Secretary of the 
 Na\y, by direction of the President, and the 
 positions and duties were precisely the same. 
 Calling the student a cadet midshipman in- 
 stead of a midshipman, without changing his 
 
 A separate class of students at the Naval 
 Academy, to be styled "cadet engineers," 
 was pro\ided for by sections 1522-1524, 
 Re\'ised Statutes. By act of August 5, 
 1882 (22 Stat., 285), the title of all under- 
 graduates at the academy was changed to 
 "naval cadets," and by act of July 1, 1902 
 (32 Stat., 686), the title "naval cadet" 
 was changed to "midshipman." 
 Midshipmen were first provided for in 
 the act of Congress pro\'iding a naval armament, 
 March 27, 1794 (1 Stat., 350), and they were 
 therein denominated "warrant officers." By 
 the act of July 16, 1862 (12 Stat., 583), mid- 
 shipmen were made ninth in grade in the active 
 list of line officers of the Na-\y. (Weller v. 
 U. S., 41 Ct. Cls., 324, r. S. v. Cook, 128 U. S., 
 254.) 
 
 The first pupils of the Naval Academy were 
 officers already in the naval service, holding 
 their warrants from the President. They have 
 gradually ceased to be midshipmen in the ac- 
 tive 6er^ice belonging to the line, and are now 
 naval students the same as cadets at the Mili- 
 tary Academy are military students. (Weller 
 V. U. S., 41 Ct. Cls., 324.) 
 
 Section 1 of the act of July 16, 1862 (12 Stat., 
 583), created the grade of midshipman as one 
 of the nine grades of the active list of line of- 
 ficers of the Navy, and section 11 of the same 
 act declared that students at the Naval Acad- 
 emy shall be stvled midshipmen. (U. S. v. 
 Baker, 125 U. S.,"'646.) 
 
 Acttng midshipmen. — By act of July 14, 
 1862, section 8 (12 Stat., 565),"the President was 
 authorized "to annually appoint ten acting 
 midshipmen for education at the Naval Acad- 
 emy," who shall be selected from the sons of 
 officers or enlisted men in the Army, Navy, or 
 Marine Corps; by act of July 28, 1866, section 8 
 (14 Stat., 322), it was provided that "midship- 
 men and acting midshipmen in the Navy of the 
 United States shall be entitled to one ration, or 
 commutation therefor." (See sec. 1577, R. S.) 
 It had pre'viously been provided, by act of 
 
 739 
 
Sec. 1512. 
 
 Pi. 2. REVISED STATUTES. 
 
 The Navy. 
 
 l)Osition or his (hities, did not make his status 
 dilfcri'iit from what it was before. (U. S. v. 
 Cook, 128 U. S., 254.) 
 
 If the law designates a cadet as a midship- 
 man, the designation is an otiicial one. The 
 <|uaIifiration of cadet-midshipman was used for 
 the sak(> of distinction, to distinguish one kind 
 of midsliipman from another, a midshipman 
 at school from a midshipman aboard ship. 
 (U. S. V. Cook, 128 U. S., 254.) 
 
 Prior to section 12 of the act of July 15, 1870, 
 (16 Stat., 334), tlie form of appointment issued 
 to a mi.lshipman at the Naval Academy stated 
 that he was "appointed to the grade of mid- 
 shipman in the United States Navy." After 
 the passage of that act the form of appointment 
 was changed by striking out the w^ords, "ap- 
 pointed to the grade of midshpiman,"' and in- 
 serting the words, "appointed a cadet-mid- 
 shipman." (U. S. V. Baker, 125 U. S., 646.) 
 
 Naval cadets. — The act of August 5, 1882 
 (22 Stat., 284), provided "that hereafter there 
 shall be no appointments of cadet-midshipmen 
 or cadet-engineers at the Naval Academy, but 
 in lieu thereof naval cadets shall be appointed 
 from each Congressional district and at large, 
 as now provided by law for cadet-midshipmen, 
 and all the undergiaduates at the Naval 
 Academy shall hereafter be designated and 
 called 'naval cadets.' " One main object of 
 this act was to aboUsh the distinctions pre- 
 viously made by law between cadet-engineers 
 and cadet-midshipmen, and for the future to 
 merge both classes in the new designation of 
 naval cadets. The previous differences be- 
 tween them grew out of the separate provi- 
 sions as to their number, their manner of ap- 
 pointment, their course and term of study, 
 and their pay after their four years' course at 
 the Academy. (U. S. v. Redgrave, 116 U. S., 
 474.) 
 
 The purpose of the act of 1882 was to abolish 
 the distinction in name between cadet-engi- 
 neers and cadet-midshipmen, and to pro\ide 
 for the two but one classification, known to 
 the law as "naval cadets." (Harmon v. U. S., 
 23 Ct. Cls., 132.) 
 
 The act of August 5, 1882 (22 Stat., 284), 
 effected a change in the name of students at 
 the Naval Academy, but did not alter their 
 legal status, which remained the same as before. 
 (BComp. Dec, 410.) 
 
 Congress has the power to change the name 
 of students at the Naval Academy and to 
 modify the scope of their duties, as it did by 
 the act of 1882; by so doing it did not under- 
 take to name the incumbent of any office and 
 assume the power of appointment thereto, 
 which belonged to the Executive. (Crenshaw 
 r. U.S., 134 U.S., 99.) 
 
 Title of midshipinan revived. — Section 
 1362 of the ReA-ised Statutes of 1878 named 
 the active list of officers of the Navy, and 
 made midshipmen the eleventh of the list of 
 the different grades therein pro\ided for. The 
 naval appropriation act of Alarch 3, 1883 (22 
 Stat., 472), changed the title of "midshipman "' 
 to "ensign," the effect of which was to dis- 
 continue the grade of midshipman in the 
 Navy. The act of June 26, 1884 (23 Stat., 60), 
 pro\ided that all graduates of the Naval 
 Academy on the completion of the six years' 
 
 course should be commissioned as ensigns in 
 the Navy, and the grade of junior ensign was 
 therein abolished. Section 7 of the act of 
 March 3, 1899 (30 Stat., 1004), known as the 
 Navy personnel act, named the list of line 
 officers of tlie NaAy, including ensigns, and 
 the name of midshipman is not found therein. 
 Th^- act of July 1, 1902 (32 Stat., G.Sli), changed 
 the title of "naval cadet" to "midshipman." 
 It thus appears that since the act of March 3, 
 1883, there has been no such rank as midship- 
 man in the United States Navy, except as that 
 title has been given to students at the Naval 
 Academy. (Weller v. U. S., 41 Ct. Cls., 324.) 
 
 Status of students at the Naval Acad- 
 emy.— A cadet student at the Naval Academy 
 is an officer of the NaAy within the meaning of 
 the provision in the act of March 3, 1883 
 (22 Stat., 473), respecting the longeAity pay 
 of officers and enlisted men in the Army or 
 Navy. (U. S. v. Cook, 128 U. S., 254, follow- 
 ing U. S. V. Baker, 125 U. S., 646, and U. S. 
 V. Hendee, 124 U. S., 309. But see act of 
 Mar. 4, 1913, 37 Stat., 891, pro\dding that 
 "hereafter the service of a midshipman at the 
 United States Naval Academy, or that of a 
 cadet at the United States Military Academy, 
 who may hereafter be appointed to the United 
 States Naval Academy, or to the United States 
 Military Academy, shall not be counted in 
 computing for any purjjose the length of service 
 of any officer in the Navy or in the ^Marine 
 Corps.") 
 
 That a midshipman is an officer has been 
 understood ever since there was a Navy. lie 
 is not one of the common seamen. His name 
 indicates a middle position, between that of 
 a superior officer and that of the common 
 seaman. (U. S. v. Cook, 128 U. S., 254.) 
 
 It is not to be doubted that a midshipman 
 is an officer, and this has been authoritatively 
 decided respecting undergraduates at the 
 Naval Academy under various laws for the 
 benefit of "officers of the Na\^." (25 Op. 
 Atty. Gen., 579.) 
 
 It is true that a student is at the Naval 
 Academy only for education, but the educa- 
 tion is at the request and for the benefit of the 
 Government rather than of himself. A raw 
 recruit is not sent to the front until he has 
 had a course of instruction, discipline, and 
 drill in camp. That the time thus spent 
 would constitute ser\ice in the Army no one 
 would doubt. Education at the Academy, 
 though of a higher order, is required and justi- 
 fied by the same principle. (Baker v. U. S., 
 23 Ct. Cls., 181; affirmed, 125 U. S., 646.) 
 
 Both cadets in the Army and cadets in the 
 Navy are appointed in pursuance of the Con- 
 stitution, Article II, section 2, pro\idiiig that 
 Congress may vest the appointment of inferior 
 officers in the President alone or in the heads of 
 departments; those in the Army by reason of 
 express authority conferred on the President 
 (sec. 1315, R. S.), those in the Navy by reason 
 of authority conferred on the Secretary of the 
 Navy (sec. 1514 R. S.). The status of mili- 
 tary cadets the same as that of naval cadets 
 is that of "officers" in the Constitutional sense 
 of the word as distinguished from employees. 
 (10 Comp. Dec, 795. See also note to sec. 
 1514, R. S.) 
 
 740 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1513. 
 
 They are not merely students being educated 
 at the expense of the Government, but are 
 officers in the na\-al ser\T.ce, and as such their 
 salary, fixed by law, can no more be increased 
 or diminished than can the salary of any other 
 officer in the naval sendee which is fixed by 
 law. Accordingly, where granted leave of 
 absence by the Secretary of the Na-\-y for sick- 
 ness or other cause, they are still entitled to 
 pay duiing the period of such leave at the same 
 rate they were recei\TJig at the academy. 
 (8Comp. Dec, 410.) 
 
 It is impossible not to conclude that the 
 claimant continued to be, after the passage of 
 the act of 1870, as he was prior to its passage, 
 an officer of the Na^-y, on the active list, and 
 ser\'ing as such an officer by \'irtue of his ha\'ing 
 been appointed a midshipman and continuing 
 to be a student in the Naval Academy, even 
 though he might have been properly styled, 
 after the passage of the act of 1870, a cadet-mid- 
 shipman. (U. S. V. Baker, 125 U. S., 646.) 
 
 ^\^late\•er doubt may arise as to the particular 
 status of students under the new title, it is 
 quite certain that they still constitute, in some 
 capacity, a part of the Navv. (Baker v. U. S., 
 23 Ct. Ols., 181; affirmed, 125 U. S., 646.) 
 
 In the computation of their longe^-ity pay, 
 officers of the Naval Reserv'e Force are entitled 
 to credit for previous sendee in the Navy as 
 cadet-engineer. (24 Comp. Dec, 629.) 
 
 A naval cadet traveling under orders is en- 
 titled to mileage under the laws pro\T.ding 
 mileage for officers of the Na\'y traveling under 
 orders. (Fitzpatrick v. U. S., 37 Ct. Cls., 332.) 
 
 Midsliipmen at the Naval Academy are not 
 enlisted in the ser^ice, but are appointed as 
 midshipmen at the Naval Academy for train- 
 ing. Not being enlisted, they can not there- 
 fore be classified as ''soldiers, sailors, or ma- 
 rines" within the meaning of laws granting 
 preference in appointment to the ci^'il sendee 
 of honorably discharged soldiers, sailors, or 
 marines. (P'ile 5252-131, Oct. 11, 1919. Com- 
 pare file 28762-649: 2, Apr. 9, 1920, holding that 
 the act of July 11, 1919, 41 Stat., 37, respecting 
 preference in civil sendee appointments, is 
 broad enough to include all members of the 
 military forces of the United States who serve 
 on active duty as such.) 
 
 Midshipmen at the Naval Academy are of- 
 ficers on the active list of the Na^'y within the 
 
 meaning of the pro\dso in the act of May 13, 
 1908 (35 Stat., 127), w^hich allows a gratuity of 
 six months' pay to be paid to the wddow or 
 other designated beneficiary upon the death of 
 an officer on the active list of the Na\-y. (15 
 Comp. Dec, 39.) 
 
 The Naval Academy is part of the machinery 
 of the Na^y. The midshipmen are appointed 
 by the Secretary of the Navy by direction of the 
 President. They are required to engage to 
 serve for eight years unless sooner discharged by 
 competent authority (but see note to sec. 1514, 
 R. S.). They must take an oath and bind 
 themselves to bear true faith and allegiance to 
 the United States, and that they will serve them 
 honestly and faithfully against all their ene- 
 mies, and that they will obey the orders of the 
 President of the United States and the orders of 
 the officers appointed over them according to 
 the rules and articles for the government of the 
 United States Na\y. They are required to 
 wear the uniform prescribed by the naval 
 authorities. They are subject to naval dis- 
 cipline. They are borne upon the Navy Regis- 
 ter as a part of the acti\-e list of the line of the 
 Na\'y . They are upon the pay roll ; their salary 
 is fixed by law, and they are paid from the 
 appropriation, "Pay of the Na\y." That they 
 are in the naval sendee is not thought question- 
 able. They are by law officers in a qualified 
 sense. They are not now and never were com- 
 missioned officers. While they are not officers 
 witliin the meaning of article 36, section 1624, 
 Re\dsed Statutes, as was decided in the case of 
 Weller v. U. S. (see note to sec. 1519, R. S.), 
 yet, following the reasoning of the Supreme 
 Court in the case of United States v. Cook 
 (above noted), held, that they are officers on 
 the active list of the NaN'y within the meaning 
 of the act of May 13, 1908 (35 Stat., 127), pro^dd- 
 ing for pa-\Tnent of death gratuity. (20 Comp. 
 Dec, 39.)' 
 
 Students at the Naval Academy, designated 
 as midshipmen by the act of July 1, 1902, are 
 officers of the Navy within the meaning of 
 section 1586, Re%dsed Statutes, which prohibits 
 the allowance of expenses incurred by any 
 officer of the Navy for medical attendance, 
 unless the attendance of a naval medical officer 
 could not have been had. (9 Comp. Dec, 375.) 
 
 For other cases, see notes to sections 1514, 
 1519, and 1520, Re\dsed Statutes. 
 
 Sec. 1513. [Number of midshipmen. Repealed.] 
 
 This section provided as follows: 
 
 "Sec. 1513. There shall be allowed at said 
 Academy one cadet midshipman for every 
 Member or Delegate of the House of Represen- 
 tatives, one for the District of Columbia, and 
 ten appointed annually at large." — (2 !Mar., 
 1867, c. 174, s. 8, v. 14, p. 517. 15 July, 1870, 
 0. 295, s. 12, V. 16, p. 334.) 
 
 It was expressly amended by act of June 
 17, 1878 (20 Stat., 143), to read as "follows: 
 
 "Sec. 1513. There shall be allowed in said 
 Academy one cadet-midshipman for exery 
 Member or Delegate of the House of Represen- 
 tatives, one for the District of Columljia, and 
 ten appointed at large: Provided, however, That 
 there shall not be at any time more in said 
 Academy appointed at large than ten: but the 
 
 pro\dsions of this section shall not be construed 
 to apply to cadet-midshipmen appointed at 
 large now in said Academy." 
 
 Subsequent amendments were made by 
 the following laws: 
 
 Act of July 1, 1902 (32 Stat., 686): ''That 
 until the year nineteen hundred and fourteen, 
 i n addition to the naval cadets now authorized 
 by law (the title ha\dng been changed by this 
 act to midshipmen), the President shall ap- 
 point five midshipmen, and there shall be ap- 
 pointed from the States at large, upon the rec- 
 ommendation of Senators, two midshipmen for 
 each State " 
 
 Act of March 3, 1903 (32 Stat., 1197): "There 
 shall be allowed at the Naval Academy two 
 midshipmen for each Senator, Representative, 
 
 741 
 
Sec. 1513. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 and Doletrate in Contrressi, two for the District 
 of Columl)ia, and live each year at lars^e 
 * * *. That the provisions of this Act for the 
 increase of appointments of midshipmen to the 
 Naval Academy sliall continue in force until 
 the tiiirtieth day of .1 uno, nineteen hundred and 
 thirteen; and tliereafter one midshipman, as 
 now proAaded by law, shall be appointed for 
 each Senator, Representative, and Delegate in 
 ConcTcss. " 
 
 Act of July 9, 1913 (38 Stat., 103); "That 
 after June thirtieth, nineteen hundred and 
 thirteen, and until June tiiirtieth, nineteen 
 hundred and nineteen, there shall be allowed 
 at the Naval Academy, two midshipmen for 
 each Senator, Representative, and Delegate in 
 Contrress, one for Porto Rico, two for the Dis- 
 trict of Columbia, and ten appointed each year 
 at large." 
 
 Act of June 30, 1914 (38 Stat., 410): "Here- 
 after in addition to the a])pointments of mid- 
 ehi]imen to the United States Naval Academy 
 as now prescribed by law, the Secretary of the 
 Navy is allowed fifteen appointments annually 
 from the enlisted men of the Navy who are citi- 
 zens of the United States and not more than 
 twenty years of age on the date of entrance to 
 the Naval Academy, and who shall have served 
 not less than one year as enlisted men on the 
 date of entrance: Provided, That such appoint- 
 ments sliall be made in the order of merit from 
 candidates who have in competition with each 
 other passed the mental examination now or 
 hereafter required by law for entrance to the 
 Naval Academy, and who pased the physical 
 examination required before entrance under 
 existing law.' 
 
 All the above laws -were repealed and 
 superseded by the act of February 15, 1916 
 (39 Stat., 9), which provided as follows: 
 
 "That hereafter there shall be allowed at 
 the United States Naval Academy three mid- 
 shipmen for each Senator, Representative, 
 and Delegate in Congress, one for Porto Rico, 
 two for the District of Columbia, ten appointed 
 each year at large, and fifteen appointed annu- 
 ally from enlisted men of the Navy as now 
 authorized by law. 
 
 "Sec. 2. That all acts or parts of acts incon- 
 sistent with the provisions of this act are hereby 
 repealed." 
 
 Amendments to the act of February 15, 1916, 
 were contained in the following laws: 
 
 Act of August 29, 1916 (39 Stat., 576): 
 "Hereafter in addition to the appointment of 
 midshipmen to the United States Naval 
 Academy, as now prescribed by law, the 
 President is hereby allowed fifteen appoint- 
 ments annually instead of ten as now pre- 
 scribed by law, and the Secretary of the Navy 
 is allowed twenty-five appointments annually, 
 instead of fifteen as now prescribed by law, the 
 latter to be appointed from the enlisted men 
 of the Navy who are citizens of the United 
 States, and not more than twenty years of age 
 on the date of entrance to the Naval Academy, 
 and who shall have served not less than one 
 year as enlisted men on the date of entrance: 
 Provided, That such appointments shall be 
 made in the order of merit from candidates who 
 have in competition with each other passed the 
 mental examination now or hereafter required 
 
 by law for entrance to the Naval Academy, 
 and who passed the physical examinations re- 
 quired before entrance under existing laws." 
 
 Act of March 4, 1917 (39 Stat., 1182): 
 "Hereafter, in addition to the appointment 
 of midfjhipmon to the United States Naval 
 Academy, as now prescribed l)y lav.-, the 
 Secretary of the Navy is allowed one hundred 
 appointments annually, instead of twenty-five 
 as now prescribed by law, to lie appointed 
 from the enlisted men of the Navy who are 
 citizens of the United States, and not more 
 than twenty years of age on the date of entrance 
 to the Naval Academy, and who shall have 
 served not less than one year as enlisted men 
 on the date of entrance: Provided, That such 
 appointments shall be made in the order of 
 merit from candidates who have, in compe- 
 tition with each other, passed the mental 
 examination now or hereafter required by law 
 for entrance to the Naval Academy, and who 
 passed the physical examination before entrance 
 under existing laws. " 
 
 Act of April 25, 1917 (40 Stat., 38). 
 
 "That, in addition to the number of mid- 
 shipmen now authorized by law, there shall be 
 appointed during the period from the date of 
 passage of this act until September first, nine- 
 teen hundred and eighteen, one additional 
 midshipman for each Senator, Representative, 
 and Delegate in Congress. Nominations shall 
 be made for these vacancies by the Senators, 
 Representatives, and Delegates concerned for 
 any regular or special examination that may 
 be ordered before that date." 
 
 The act of February 15, 1916, and 
 amendments thereto (except theact of March 
 4, 1917) were repealed and superseded by the 
 act of December 20, 1917 (40 Stat., 430), which 
 provided as follows: 
 
 "That hereafter there shall be allowed at 
 the United States Naval Academy five mid- 
 shipmen for each Senator, Representative, and 
 Delegate in Congress, one for Porto Rico, two 
 for the District of Columbia, fifteen appointed 
 each year at large, and one hundred appointed 
 annually from enlisted men of the Navy, as 
 now authorized by law. 
 
 "Sec. 2. That all acts or parts of acts in- 
 consistent with the provisions of this act are 
 hereby repealed." 
 
 The act of December 20, 1917, was 
 expressly amended by the act of July 11, 
 1919 (41 Stat., 140), which provided as follows: 
 
 "Section 1 of the act entitled 'An Act to in- 
 crease the number of midshipmen at the United 
 States Naval Academy,' approved December 
 20, 1917, is hereby amended so as to read as 
 follows: That hereafter there shall be allowed 
 at the United States Naval Academy five mid- 
 shipmen for each Senator, Representative, 
 Delegate in Congress, and Resident Commis- 
 sioner from Porto Rico, and five for the District 
 of Columbia, fifteen appointed each year at 
 large, and one hundred appointed annually 
 from enlisted men of the Navy, and members of 
 the Naval Reserve Force on active duty, as 
 now authorized by law." 
 
 Midshipmen appointed from Porto 
 Rico.— The act of Maich 3, 1903 (32 Stat., 
 1198), provided as follows: "That hereafter 
 there shaU be at the Naval Academy one 
 
 742 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1513. 
 
 midshiiJman from Porto Rico, who shall be a 
 native of said island, and whose appointment 
 shall be made by the President on the rec- 
 ommendation of the Governor of Porto Rico." 
 
 The act of March 3, 1903, was not repealed by 
 the act of February 15, 1916 (39 Stat., 9), which 
 increased the niunber of midshipmen and pro- 
 vided for the appointment of "one for Porto 
 Rico," but did not provide that the appointee 
 should be a native of the island or that he 
 should be nominated by the Governor of Porto 
 Rico as pro^^.ded by the act of 1903. The two 
 provisions are not inconsistent and should be 
 construed as authorizing the appointment of 
 one midshipman from Porto Rico in addition 
 to the native of the island who must be recom- 
 mended by the Governor. The language of 
 the act of February 15, 1916, "one for Porto 
 Rico," was repeated in the act of December 20, 
 1917, which latter act also did not repeal the 
 act of March 3, 1903, relating to the appoint- 
 ment of a midshipman from Porto Rico. As a 
 consequence, from March 3, 1903, until Febru- 
 ary 15, 1916, only one midshipman from Porto 
 Rico was authorized by law; he could be ap- 
 pointed only upon recommendation of the 
 Governor and was required to be a native of the 
 island. From February 15, 1916, until July 11, 
 1919, two midshipmen were authorized, one 
 required to be a native of the island and to be 
 appointed only on the recommendation of the 
 Governor. On the last mentioned date Con- 
 gress amended the act of December 20, 1917, 
 so as to pro\'ide for the appointment of five 
 midshipmen on the recormnendation of the 
 Resident Commissioner from Porto Rico. The 
 result of this amendment is to authorize a total 
 of six midshipmen from Porto Rico, five of 
 whom are to be appointed on the nomination 
 of the Resident Commissioner from Porto Rico 
 and need not be natives of the island, the other 
 to be a native of Porto Rico appointed under 
 the act of March 3, 1903, on the recommendation 
 of the Governor. (File 5252-126, Aug. 1, 
 1919.) 
 
 Students from the Philippine Islands. — 
 The act of August 29, 1916 (39 Stat., 576), con- 
 tained the following pro\T.sion: "That here- 
 after the Secretary of the Na\y is authorized to 
 permit not exceeding four Filipinos, to be de- 
 signated, one for each class, by the Governor 
 General of the Philippine Islands, to receive 
 instruction at the United States Naval Academy 
 at Annapolis, Maryland: Provided, That the 
 FilipinGS undergoing instruction, as herein 
 authorized, shall receive the same pay, allow- 
 ances, and emoluments, to be paid out of the 
 same appropriations, and shall be subject to the 
 same rules and regulations governing admission, 
 attendance, discipline, resignation, discharge, 
 dismissal, and graduation as are authorized by 
 law and regulation for midshipmen appointed 
 from the United States, but the Filipino mid- 
 sliipmen herein authorized shall not be entitled 
 to appointment to any commissioned office in 
 the United States Na\'y by reason of their 
 graduation from the Naval Academy." 
 
 The above-quoted pro\4sion of the act of 
 August 29, 1916, relatmg to Filipino students, 
 is not repealed by the act of July 11, 1919 (41 
 Stat., 140), or any other law, relating to the 
 number of midshipmen to be allowed at the 
 
 United States Naval Academy. (File 5252- 
 126, Aug. 1, 1919.) 
 
 Students from foreign countries. — The 
 act of June 29, 1906 (34 Stat., 577), contained 
 the following: "No person shall be admitted 
 for instruction at the Naval Academy at Anna- 
 polis from any foreign country except upon 
 authority of law hereafter enacted." 
 
 A public resolution approved February 15, 
 1916, authorized the Secretary of the Navy to 
 permit a designated "citizen of Cuba" to "re- 
 ceive instruction at the United States Naval 
 Academy at Annapolis," pro\'ided he first 
 passed the examinations prescribed for candi- 
 dates from the United States: Held, that said 
 resolution did not authorize the admission of 
 the party named therein as a midsliipman or 
 authorize his admission into the naval service 
 in any status whatever; he is not wliile at the 
 Naval Academy subject to the laws and regula- 
 tions for the government of the Navy, and is 
 not liable to trial by court-martial and dismissal 
 for misconduct. He is not to be regarded as a 
 member of the naval forces but simply as a 
 student at the Naval Academy, whose presence 
 there is authorized by law. He is ineligible for 
 a commission in the Navy under section 1428 of 
 the Revised Statutes. However, he may be 
 graduated from the Naval Academy and given 
 a diploma as exddence of such graduation. 
 (File 5252-120, May 13, 1919; C. M. 0. 186, 
 1919.) 
 
 The act of June 29, 1906, above quoted, is a 
 legislative declaration that unless Congress it- 
 self makes an exception to the rule the privi- 
 leges of the Naval Academy are restricted to 
 citizens of the United States. (File 313-26, 
 Dec. 20, 1906. Overruled by subsequent de- 
 cisions noted under section 1428, R. S., which 
 hold that aliens may legally be appointed to 
 the Naval Academy as midshipmen, but can 
 not be commissioned upon graduation as officers 
 of the Navy unless naturalized.) 
 
 Midshipmen appointed from enlisted 
 men of the Navy, Marine Corps, Coast 
 Guard, and Naval Reserve Force. — The 
 appointment of midshipmen from "boys 
 enlisted in the Navy " was authorized by acts 
 of July 16, 1862 (12 Stat., 585, sec. 11), and 
 March 2, 1867 (14 Stat., 517, sec. 8). By act 
 of July 15, 1870 (16 Stat., 334, sec. 12), which 
 changed the title of students at the Naval 
 Academy to "cadet-midshipmen," it was 
 provided that the said act "shall not be con- 
 strued to authorize the appointment of cadet- 
 midshipmen from among boys enlisted in the 
 Navy." (File5252-59, Feb.6, 1914.) The act 
 of June 30, 1914, and later laws above noted, 
 authorized the appointment of midshipmen 
 from enlisted men of the Navy. 
 
 Enlisted men of the Marine Corps may be 
 a^jpointed to the Naval Academy in the dis- 
 cretion of the Secretary of the Navy under 
 the authority conferred by the act of June 30, 
 1914 (38 Stat., 410), which authorizes such 
 appointments from "enlisted men of the 
 Nav>'." (File 5252-66, May 13, 1915; C. M. O. 
 20, 1915.) 
 
 Even when the Coast Guard is operating "aa 
 a part of the Na\-y " in time of war, as provided 
 by the act of January 28, 1916 (38 Stat., 800), 
 enlisted men of the Coast Guard are not 
 
 743 
 
Sec. 1514. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 cliE:iblo for appointment to the Naval Acad- 
 emy under th(> act of June 30, 1914 (38 Stat., 
 410), which autliorizes such appointments 
 from "enlisted men of the Navy." (C. M. O. 
 141, 1918, citing file 28762-457, Oct. 10, 1918. 
 Compare later decisions noted under sec. 
 1492, 11. S., holding that enlisted men of the 
 Coast (Juard when operating 'as a part of the 
 Navy'" are "enlisted men of the Navy.") 
 
 Members of the Naval Reserve Force in 
 enlisted ratings are not eligible, even when on 
 active duty, for appointment to the Naval 
 Academy under the act of June 30, 1914 
 (38 Stat., 410), as amended by act of December 
 20, 1917 (39 Stat., 9), which authorizes such 
 ajipointments to be made from "enlisted men 
 of the Navy." (C. M. 0. 174, 1918, citing 
 file 5252-92:1. But see act of July 11, 1919 
 (41 Stat., 140), above quoted, which authorizes 
 such appointments from "members of the 
 Naval Reserve Force on active duty, as now 
 authorized by law.") 
 
 MisceUaneous decisions. — The act of July 
 14, 1862, section 8 (12 Stat., 565), which 
 authorized the President to appoint annually 
 ten acting midshipmen for education at the 
 Naval Academy, to be selected from the sons 
 of ofilcers or men in the Army, Navy, or 
 Marine Corps who distinguished themselves in 
 the service of the United States, was not 
 repealed by the act of July 16, 1862, section 11 
 (12 Stat., 585), which prov-ided for the number 
 to be allowed at the Naval Academy and the 
 method of appointment thereto. The number 
 to be appointed "at large" by the President 
 under the latter act were in addition to the 
 niunber to be appointed under the former act, 
 •whose appointments were not to be "at large" 
 but confined to a comparatively small class. 
 (10 Op. Atty. Gen., 315.) 
 
 Under the 11th section of the act of July 16, 
 1862, which provided that the nomination of 
 candidates for admission into the Naval Acad- 
 emy should he made upon recommendation of 
 Meml)er3 and Delegates from actual residents 
 of their districts, it was held that the Secretary 
 of the Navy had the power and it was his duty 
 to fill vacancies in the Naval Academy that 
 might exist from any district wiien it was 
 clearly impracticable to obtain the recom- 
 mendation of the Member or Delegate in Con- 
 
 gress from that district, as when the district 
 was not represented in Congress; that the 
 words, ' ' two for every Member and Delegate of 
 the Hou.se of Representatives," meant to estab- 
 lish as the standard for appointment, not the 
 actual number of Members and Delegates who 
 happened to be entitled to seats in the House, 
 but the numlier of districts which w'ere entitled 
 to representation l)y Members and Delegates, 
 and not to make the number of students to be 
 allowed at the Naval Academy an uncertain 
 quantity varying with the accidents of non- 
 election or death of Members or the like; that 
 the provision in said act that if a Member or 
 Delegate neglects to recommend a candidate by 
 the first of July, it shall be the duty of the Sec- 
 retary to fill the vacancy, clearly showed the 
 intent of Congress that the school should be 
 kept fiill up to the standard before stated. (10 
 Op. Atty. Gen., 494, modifying 10 Op. Atty. 
 Gen., 315, which in part held that "midship- 
 men can not lawfully be appointed for a dis- 
 trict which is not represented in Congress." 
 By act of Mar. 2, 1865, 13 Stat., 466, sec. 2, it 
 was provided "that no midshipman shall be 
 appointed for any district not represented in 
 Congress.") 
 
 The act of March 3, 1903 (32 Stat., 1177, 1197), 
 providing that "there shall be allowed at the 
 Naval Academy two midshipmen for each Sen- 
 ator, Representative, and Delegate in Con- 
 gress," did not entitle a representative to have 
 at the academy two midshipmen of his own 
 nomination when there was already one there 
 upon the nomination of his predecessor; under 
 that enactment, no congressional district was 
 entitled to have at the Naval Academy at any 
 one time more than two midshipmen. (25 Op. 
 Atty. Gen., 333.) 
 
 The act of July 9, 1913 (38 Stat., 103), quoted 
 above, was construed to mean that two mid- 
 shipmen were allowed for the ofiice of Senator, 
 Representative, and Delegate in Congress, and 
 not allowed to the individual holding such 
 office; that, accordingly, if a Senator or Repre- 
 sentatiN'e had two appointments to the Naval 
 Academy made on his recommendation, his 
 successor could not, while such appointees were 
 at the Academy, be allowed to have two addi- 
 tional appointments made to the Academy on 
 his recommendation. (File 5252-67 : 1, July 
 12, 1915; CM. O. 27, 1915.) 
 
 Sec. 1514. [Nomination of candidates. Superseded.] 
 
 This section provided as follows: 
 "Sec. 1514. The Secretary of the Navy 
 shall, as soon after the 5th of March in each 
 year as possible, notify, in writing, each 
 Member and Delegate of the House of Repre- 
 sentatives of any vacancy that may exist in 
 his district. The nomination of a candidate 
 to fill said vacancy shall be made upon the 
 recommendation of the Member or Delegate, 
 if such recommendation is made by the first 
 day of July of that year; but if it is not made 
 by that time, the Secretary of the Navy shall 
 fill the vacancy. The canditlate allowed for 
 the District of Columbia and all the candidates 
 appointed at large shall be selected by the 
 President. "—(16 July, 1862, c. 183, s. 11, v. 12, 
 p. 585. Benjamin's Case, 10 C. Cls., 474.) 
 
 It was expressly amended bv act of July 
 
 26, 1894 (28 Stat., 136), to read as 'follows: 
 
 "The Secretary of the Navy shall, as soon 
 after the fifth of March in each year as possible, 
 notify in writing each Member and Delegate 
 of the House of Representatives of any vacancy 
 that may exist in his district. The nomination 
 of a candidate to fill said vacancy shall be made 
 upon the recomendation of the Member or 
 Delegate, if such recommendation is made by 
 the first day of July of that year; but if it is not 
 made by that time, the Secretary of the Navy 
 shall fill the vacancy by appointment of an 
 actual resident of the district in which the 
 vacancy exists, who shall have been for at least 
 two years immediately preceding the date of 
 his appointment an actual and bona fide resi- 
 
 744 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1514. 
 
 dent of the district in which the vacancy 
 exists and of the legal qualification under the 
 law as now provided. The candidate allowed 
 for the District of Columbia, and all the can- 
 didates appointed at large, shall be selected 
 by the President. ' ' 
 
 It was superseded by the following pro- 
 vision in the act of March 3, 1903 (32 Stat., 
 1197): 
 
 "The Secretary of the Navy shall as soon as 
 practicable after the fifth day of March in each 
 year notify in writing each Senator, Repre- 
 sentative, and Delegate in Congress _ of any 
 vacancy which may be regarded as existing in 
 the State, District, or Territory which he rep- 
 resents, and the nomination of a candidate to 
 fill such vacancy shall be made upon the recom- 
 mendation of the Senator, Representative, or 
 Delegate. Such recommendation shall be 
 made by the first day of June of that year, and 
 if not so made the Secretary of the Navy shall 
 fill the vacancy by the appointment of an 
 actual resident of the State, District, or Ter- 
 ritory in which the vacancy exists, v.'ho shall 
 have been for at least two years immediately 
 preceding his appointment an actual bona fide 
 resident of the State, District, or Territory in 
 which the vacancy exists and shall have the 
 qualifications otherwise prescribed bylaw." 
 
 The act of March 3, 1903, was super- 
 seded by the following provision in the act of 
 June 29, 1906 (34 Stat., 578): 
 
 "Hereafter the Secretary of the Navy shall, 
 as soon as possitale after the first day of June_ of 
 each year preceding the graduation of mid- 
 shipmen in the succeeding year, notify in 
 writing each Senator, Representative, and 
 Delegate in Congress of any vacancy that will 
 exist at the Naval Academy because of such 
 graduation, or that may occur for other reasons 
 and which he shall be entitled to fill by nomi- 
 nation of a candidate and one or more alter- 
 nates therefor. The nomination of a candidate 
 and alternate or alternates to fill said vacancy 
 shall be made upon the recommendation of 
 the Senator, Representative, or Delegate, if 
 such recommendation is made by the fourth 
 day of March of the year following that in 
 which said notice in writing is given, but if it 
 is not made by that time the Secretary of the 
 Navy shall fill the vacancy by appointment of 
 an actual resident of the State, Congressional 
 district, or Territory, as the case may be, in 
 which the vacancy will exist, who shall have 
 been for at least two years immediately pre- 
 ceding the date of his appointment an actual 
 and bona fide resident of the State, Congres- 
 sional district, or Territory in which the va- 
 cancy will exist and of the legal qualification 
 under the law as now provided. In cases 
 where by reason of a vacancy in the meinber- 
 ship of the Senate or House of Representatives, 
 or by the death or declination of a candidate 
 for admission to the academy there occurs or 
 is aboat to occur at the academy a vacancy from 
 any State, district, or Territory that_ can not 
 be filled by nomination as herein provided, the 
 same may be filled as soon thereafter and be- 
 fore the final entrance examination for the 
 year as the Secretary of the Navy may deter- 
 mine. The candidates allowed for the Dis- 
 trict of Columbia and all the candidates ap- 
 
 pointed at large, together with alternates there- 
 for, shall be selected by the President within 
 the period herein prescribed for nomination of 
 other candidates: Provided, Ih-Sii the President 
 may select a candidate for the District of Colum- 
 bia for the year nineteen hundred and eight." 
 Reconrmendation of Senator, Repre- 
 sentative, or Delegate advisory only. — 
 The notification from the Secretary and the 
 recommendation from the Member are parts of 
 the machinery of appointment, but they are 
 only, under the statute, means to an end and 
 not so essential as to defeat the purpose of the 
 statute in cases where their observance may be 
 impossible. Where observance is possible, the 
 statutory direction should be obeyed; but the 
 act of the Member or Delegate is simply 
 advisory; it implies no power to compel the 
 appointment of the person recommended, and 
 the Secretary may refuse to accept the recom- 
 mendation ajid require another. If the right 
 to recommend involved the right of absolute 
 control over the appointment, it would be 
 equivalent to the power of appointment itself, 
 which Congress could not vest in Members or 
 Delegates, but which under the Constitution 
 is vested in the President with the advice and 
 consent of the Senate, and may be conferred 
 by law only upon the Presidentalone, the courts 
 of law, or the heads of departments. Any 
 statute which in terms or effect vested the 
 power of appointment of pupils at the Naval 
 Academy in the Members and Delegates of 
 Congress would be in contravention of the 
 Constitution and void. (10 Op. Atty. Gen., 
 494; see also 19 Op. Atty. Gen., 350.) 
 
 Appointments made by Secretary of the 
 Navy.— Under the act of August 31, 1852 (10 
 Stat., 658), which provided that "no appoint- 
 ment of midshipman, acting midshipman, or 
 pupil at any naval school in the Navy shall 
 be made unless recomjnended by the Member 
 of Congress representing the district in which 
 the applicant resides, in the same manner that 
 cadets at West Point are now appointed," 
 held, that a Member of Congress has no power 
 to "appoint" a midshipman, nor even to 
 "nominate" one, according to the common 
 acceptation of that word ; the word used in the 
 statute is "recommended," not "nominated," 
 by the Member; the statute only makes the 
 recommendation of a Member of Congress a 
 prerequisite to appointment; the Secretary of 
 the Navy has power to appoint as a midship- 
 man anyone who stands recommended by a 
 Member of Congress who was, at the time he 
 recommended, representing the district in 
 which the applicant resides; and if more than 
 one be so recommended, the Secretary has a 
 right to choose among them. The Member of 
 Congress may, if he ^vill, decline to choose 
 among his young constituents, and recommend 
 them all, thus leaving the appointing power to 
 choose among them. Accordingly, where a 
 Member of Congress recommends for appoint- 
 ment a person resident in his district, and hus 
 predecessor while representing the same 
 district had recommended for appointment 
 another person residing within the district, 
 held, that the present Member is not precluded 
 from his right to recommend because his 
 
 745 
 
Sec. 1514. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 predecessor had exercised the same right 
 before; and that the Secretary of the Navy has 
 a perfect ris^ht to choose between them. (10 
 Op. Atty. Gen., M]; modified by IG Op. Atty. 
 Gen., 621, holding that a Member of Congress 
 had not the right in January, 1879, to recom- 
 mend a candidate for examination in June, 
 1879, but that such recommendation could 
 not lawfully be made until after the 5th day 
 of March, 1879. See also 21 Op. Atty. Gen., 
 342, noted below under "Recommendation of 
 Member of Congress later unseated."') 
 
 Admission or appointment to the Naval 
 Academy is the act of the Secretary of the Navy, 
 both as to candidates "recommended" by 
 Members of Congress and those "selected" by 
 the President. In the one case the Member or 
 Delegate recommends, and the President in the 
 other selects, but neither appoints the naval 
 cadet; the "nomination" based on the "recom- 
 mendation" or the "selection" is made to the 
 Naval Academy or to the examining committee 
 selected from the academic board of the 
 academy by the superintendent of the academy 
 under paragraph 37 of the Regulations. (19 Op. 
 Atty. Gen., 350.) 
 
 According to sections 1513-1515, Revised 
 Statutes, the follo\ving steps are necessary to 
 the appointment of naval cadets — that is to say, 
 each one, according as he resides in a State or 
 Territory, must, except as to 11 of them, be 
 recommended by a Member or Delegate of the 
 House of Representatives from the congres- 
 sional district or Territory of which the proposed 
 candidate is a resident, and upon such recom- 
 mendation he must be nominated to fill a 
 vacancy in the academy, or in case of a failure 
 by a Member or Delegate to make such recom- 
 mendation the Secretary of the Navy shall fill 
 the vacancy; and in the 11 excepted cases 
 the persons to fill vacancies shall be "selected 
 by the President." (19 Op. Atty. Gen., 350.) 
 
 The power of appointing midshipmen is vest- 
 ed in the Secretary of the Navy. Under 
 sections 1513-1515, Revised Statutes, and the 
 act of July 26, 1894, section 1 (28 Stat., 136), 
 the Member of or Delegate to Congress "recom- 
 mends " or the President ' ' selects, " but the 
 Secretary of the Nav>^ ' ' appoints, " in pursuance 
 of the power of Congress to vest the appoint- 
 ment of inferior officers in the heads of depart- 
 ments. (25 Op. Atty. Gen., 579, affirming 19 
 Op. Atty. Gen., 351.). 
 
 The power to accept a resignation, like the 
 power to remove from office, is deduced from 
 the power to appoint, and is as firmly estab- 
 lished as the power of removal. In the case of 
 cadets at the Naval Academy the power of 
 appointment is vested in the Secretary of the 
 Navy, and therefore the acceptance by him of 
 the resignation of a cadet creates a vacancy in 
 the academy. (19 Op. Atty. Gen., 350.) 
 
 Both cadets in the Army and cadets in the 
 Navy_ are appointed in pursuance of the Con- 
 stitution, Article II, section 2, providing that 
 Congress may vest the ajipointment of inferior 
 officers in the President alone, or in the heads 
 of departments; those in the Army by reason of 
 express authority conferred on the President 
 (sec. 1315, R. S.), those in the Navy by reason 
 of authority conferred on the Secretary of the 
 Navy (sec. 1514, R. S.). (10 Comp. Dec, 795.) 
 
 Appointments made by the President. — 
 The statutes are silent as to who shall make the 
 appointments of midshipmen in the Naval 
 Academy, except that if Members of Congress 
 fail to nominate to fill vacancies such vacancies 
 shall be filled by the Secretary of the Navy (sec. 
 1514, R. S.). It has been the universal prac- 
 tice for the Secretary of the Navy to make the 
 appointments of midshipmen "by direction of 
 the President" with the exception above stated. 
 (Weller v. U. S., 41 Ct. Cls., 324.) 
 
 The first act providing for midshipmen in the 
 Navy gave their selection, like other naval offi- 
 cers, to the President (1 Stat., 350), and it was 
 not until by act of Congress, August 31, 1852 
 (10 Stat., 102), that provision was made for their 
 recommendation by Members of Congress. 
 This fact doubtless accounts for the present 
 silence of the Revised Statutes -with reference 
 to their appointments, in contrast with the pro- 
 visions relating to cadets at the Military Acad- 
 emy (sec. 1315, R. S.). (Weller v. U. S., 41 Ct. 
 Cls., 324.) 
 
 Neither a midshipman at the Naval Academy 
 nor a cadet at the Military Academy holds 
 either a commission or a warrant; both are ap- 
 pointed by the President. (Weller v. U. S., 
 41 Ct. Cls., 324, 342.) 
 
 The form used by the Secretary of the Navy 
 in the appointment of a midshipman is as fol- 
 lows: "By direction of the President of the 
 United States you are hereby appointed a mid- 
 shipman in the United States Navy from ." 
 
 (15 Comp. Dec, 39.) 
 
 The midshipmen are appointed by the Sec- 
 retary of the Navy by direction of the Presi- 
 dent. (15 Comp. Dec, 39, 44.) 
 
 When appointment takes effect. — Cadets 
 admitted to the Naval Academy on 10 May and 
 4 September, 1886, respectively, became naval 
 cadets in the full sense of the term upon the 
 dates named; they had on those dates, respec- 
 tively, been duly nominated to the place, ac- 
 cepted the nomination, passed successfully the 
 examination required by law, taken the oath 
 prescribed for naval cadets, been assigned to 
 and entered upon the discharge of the duties 
 pertaining to the position, and from those dates 
 their salaries commenced. Their appoint- 
 ments, although not issued until the 11th of 
 October, 1886, related back by express recitals 
 to these dates respectively, and are conclusive 
 evidence of the appointments at the dates 
 aforesaid. The appointments accordingly took 
 effect on 10 May and 4 September, 1886, so as to 
 render them liable to trial by court-martial. 
 (18 Op. Atty. Gen., 507.) 
 
 Obligation assumed by midshipmen to 
 serve in the Navy.— Formerly midshipmen, 
 at the time of executing their oath of office and 
 as part of the same paper, signed an agreement 
 by which they engaged to "serve in the Navy 
 of the United States for eight years, unless 
 sooner discharged by competent authority' ' 
 (see 15 Comp. Dec, 43). This agreement was 
 neither required nor expressly authorized by 
 law, but was the creature of administrative 
 action and may be wholly omitted or changed 
 in any manner, not conflicting with law, as 
 may be desired. Thus it would be legal to 
 require that candidates in acknowledging 
 receipt of the Department's permission to re- 
 
 746 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1514, 
 
 port for examination embody in their letter of 
 acknowledgment an engagement that, should 
 they receive an appointment as a midshipman, 
 they "will serve in the Navy of the United 
 States during the pleisui'e of the President of 
 the United States, unless sooner discharged by 
 competent authority," said letter and agree- 
 ment to be expressly approved thereon by their 
 parents or guardians. (File 5252-77, July 20, 
 1915.) In accordance with the above, it was 
 directed by the Secretary of the Na^'j', April 
 12, 1916, that form letters be prepared, to be 
 signed by candidates for the Naval Academy 
 and their parents or guardians, obligating such 
 candidates, if appointed, to serve during the 
 pleasure of the President of the United States, 
 instead of for a specified period of eight years. 
 (File 5252-77, Apr. 12 1916.) 
 
 Reinstatement of midshipman. — The 
 Secretary of the Navy can not revoke his action 
 in accepting the resignation of a na^-al cadet 
 after the resignation has taken effect. The 
 cadet ha\ing declared his purpose to resign, and 
 the Secretary of the Navy having signified his 
 acquiescence in that purpose, the result was a 
 complete severance of the cadet's connection 
 with the Academy, and as much a vacancy 
 there as if the cadet had died. The consent of 
 the parties to the act of resignation could not be 
 recalled except by the reappointment of the 
 same person as cadet in conformity to sections 
 1514 and 1515, Re\'ised Statutes. It follows 
 that the attempted consent of the Secretary of 
 the Na\'y to the withdrawal of the cadet's 
 resignation after acceptance thereof did not re- 
 instate and restore such cadet to the Academy, 
 but had no legal effect whatever. (19 Op. 
 Atty. Gen., 350.) 
 
 The appointment of a midshipman was re- 
 voked because of accumulated demerits, and 
 the revocation duly promulgated. An ofiicer 
 who has resigned or been dismissed can not be 
 restored to the office formerly held by him ex- 
 cept by reappointment. Accordingly, heldthSit 
 the Secretary of the Na^y has no authority to 
 reinstate to the Naval Academy a midshipman 
 whose appointment has been revoked because 
 of accumulated demerits and the revocation 
 thereof dulv promulgated. (25 Op. Attv. Gen., 
 579.) 
 
 For other cases see notes to sections 1515, 
 1517, and 1519, Revised Statutes. 
 
 Recommendation of Member of Con- 
 gress later unseated. — The notice provided 
 for by section 1514, Re\ised Statutes, as amend- 
 ed, was intended to be given to the Member of 
 Congress actually sitting, and the recommenda- 
 tion provided for by said section was intended 
 to be made by such member, and action duly 
 taken thereon should not be affected by any 
 subsequent event except the failure of the 
 nominee to pass his examination. Accordingly, 
 held that a cadet nominated to the Naval 
 Academy upon the recommendation of a Mem- 
 ber of the House of Representatives who, since 
 the recommendation and nomination, has been 
 unseated by contest of election can not be law- 
 fully deprived of his place if he passes his exam- 
 ination. The Secretary of the Na^n^- ip Bot au- 
 thorized to revoke such a nomination and notify 
 the newly seated Member that a vacancy exists. 
 He has no right to call for a new recommenda- 
 
 tion except under section 1516, Revised Stat- 
 utes, when the candidate fails to pass his exam- 
 ination. Until a decision is made which un- 
 seats them, Members of Congress whose seats 
 are contested are considered to be in all re- 
 spects endowed with the same rights, powers, 
 and privileges as other members. Even if the 
 Secretary had not acted upon the recommen- 
 dation until after the Member who made it was 
 unseated, his nomination thereon would be 
 perfectly legal and valid. This was held in 10 
 Op. Atty. Gen., 40, in which it was said that the 
 Secretary has power to appoint any one who 
 stands recommended by a Member of Congress 
 who was, at the time he recommended, repre- 
 senting the district in which the applicant re- 
 sides. (21 Op. Atty. Gen., 342.) 
 
 Date of notice and recommendation. — 
 Section 1514, Re\'ised Statutes, was amended 
 by act of July 26, 1894, providing that notice 
 shall be given by the Secretary of the l^axy 
 "as soon after the fifth of March in each year as 
 possible." The date named in the statute was 
 undoubtedly chosen with reference to the meet- 
 ing of Congress. The requirement of prompt 
 notice was due to manifest reasons of public 
 policy. The object was not so much to confer 
 a priATlege on the Members of Congress as to in- 
 sure full classes of cadets. (21 Op. Atty. Gen., 
 342.) . . . ■ 
 
 Beginning with the foundation of the Govern- 
 ment, never departed from and now having 
 the force of law, the life of each Congress comes 
 to an end at noon on the 4th day of March. 
 An act approved March 2, 1895, authorized 
 Members of Congress to recommend cadets to 
 fill vacancies existing at the Naval Academy, 
 such nominations to be made on or before 
 March 4, 1895. This act was intended to apply 
 to Members of the then existing Fifty-third 
 Congress. To be valid it was essential that a 
 recommendation should be made before 12 
 o'clock noon of March 4, 1895. Accordingly, 
 held that three recommendations, dated March 
 4, 1895, but not received at the Navy Depart- 
 ment until March 5, 1895, were ineffective, 
 notwithstanding that one of said recommenda- 
 tions was signed at 11.30 a. m. and handed to the 
 ! Assistant Secretary of the Na\'y about 9 o'clock 
 in the evening of March 4, 1895; therefore said 
 recommendations did not deprive the succes- 
 sors in office of the signers of the general priv- 
 ileges granted to them by Revised Statutes, 
 sections 1513 and 1514. (21 Op. Atty. Gen., 
 164.) 
 
 March 6, 1878, a Member of Congress was 
 informed, as required by section 1514, Revised 
 Statutes, of a vacancy at the Naval Academy 
 for the appointment of a cadet midshipman 
 from his district and was requested to recom- 
 mend a candidate to fill the vacancy; he did 
 so and the candidate failed in June, 1878, to 
 pass the required examination. On June 29, 
 1878, the Member of Congress was, as required 
 by section 1516, Revised Statutes, informed 
 of the failure of said candidate to pass the 
 required examination and was requested to* 
 recommend another to be examined in Sep- 
 tember following; he did so recommend and 
 the candidate failed on examination in Sep- 
 tember, 1878. The times for the examination 
 of candidates as fixed by the Regulations are 
 
 54641°— 22- 
 
 -48 
 
 747 
 
Sec. 1615. 
 
 Pt.2. REVISED STATUTES. 
 
 f he Navy. 
 
 Juno 1 1 and Septoml>er 22 of each year. Held, 
 that tht> next reconiinendation of a cadet-mid- 
 piiipman for the vacancy in question should be 
 made after March 5, 1879. Section 1515, Re^^sed 
 Rtatutee, is to he reiid as if the dates fixed 
 In- the Regulations of the Academy had been 
 expressly in.'^erted therein; accordin(};ly, the 
 season for recommendations and nominations 
 of cadet-midshipmen begins after March 5 and 
 expires on September 22 of each year; although 
 a casual persual of section 1514 might suggest 
 that the date, "fifth day of March," therein 
 contained applies only to the notice spoken of 
 and does not prevent the recommendation 
 from being made sooner, in case the member 
 has otherwise been informed of the vacancy. 
 Wliile it may be conc-eded that a previous 
 notification is not essential to the validity of a 
 recommendation, it seems that the date is so. 
 The effect of the law was to postpone the 
 operation of the enactment until the coming-in 
 of a new Congress, and to establish a process by 
 which the Members of that Congress, and of all 
 others, might control the appointment of cadet- 
 midshipmen made during their respective 
 terms of office. Accordingly, held that in 
 this case the Member of Congress has not the 
 right, prior to March 5, 1879, to recommend 
 another candidate for examination in June, 
 1879, or for examination at once. (16 Op. 
 Atty. Gen., 621, modifying 10 Op. Atty. 
 Gen., 46.) 
 
 The naval appropriation act of June 29, 1906 
 (34 Stat., 578), relating to appointments to the 
 Naval Academy, provided that "the candi- 
 dates allowed for the District of Columbia and 
 all the candidates appointed at large, together 
 with alternates therefor, shall be selected by 
 the President within the period herein pre- 
 scribed for nomination of other candidates," 
 that is, by the 4th day of March of the year 
 following that in which written notice is 
 given, etc. This clause was followed by a 
 proviso that "the President may select a can- 
 didate for the District of Columbia for the 
 year nineteen hundred and eight." This 
 additional authority granted by the proviso 
 was exercised by the President by selecting a 
 candidate for the District of Columbia for the 
 
 year 1908. Ilehl that the power of the Presi- 
 dent, granted by this ])rovi80, was thereby 
 exhausted, and the candidate having failed 
 on his examination the President is not au- 
 thorized, by virtue of that clause, to reap- 
 point him or to otherwise exercise the power 
 conferred upon him by that proviso. (27 
 Op. Atty. Gen., 420.) 
 
 Recoininendation of alternates. — Under 
 the system followed by the Navy Department 
 the nomination of alternates by a Re})resenta- 
 tive in Congress is limited to vacancies for 
 which designated by the Representative. 
 Accordingly, where the principal and all 
 alternates nominated for one vacancy failed 
 upon examination, new nominations are re- 
 quired and the vacancy can not be filled by 
 the appointment of a successful alternate 
 designated by the same Representative for 
 another vacancy, where such alternate was not 
 also designated as alternate for the vacancy 
 first mentioned. Where two vacancies exist 
 at the same time the same alternates can be 
 designated for each principal candidate, but 
 unless this is done the alternates have no claim 
 to consideration for any vacancy other than 
 that for which designated. In this case the 
 candidate and his three alternates having 
 failed, and in the meantime the Representa- 
 tive who made the nomination having gone 
 out of office, the vacancy was properly filled 
 upon nomination of his successor, and the 
 candidate finally appointed should be entered 
 in the records as having been appointed upon 
 the recommendation of the latter, notmth- 
 standing it so happened that the successful 
 candidate was one of the alternates designated 
 by the former Representative to fill a different 
 vacancy. (File 5252-128, Oct. 17, 1919.) 
 
 Oath of ofla.ce. — The form of oath to be 
 taken by midshipmen is that prescribed by 
 section 1757, Revised Statutes, and not that 
 prescribed by article 2 of the Articles of War 
 (sec. 1342, R. S.) for enlisted men of the Army, 
 which is made applicable to enlisted men of 
 the Navy by section 25 of the Navy personnel 
 act of March 3, 1899 (30 Stat., 1004). (File 
 5252-28: 1, Aug. 25, 1909.) 
 
 Sec. 1615. [Examination of candidates.] All candidates for admission into 
 the Academy shall be examined according to such regulations and at such 
 stated times as the Secretary of the Navy may prescribe. Candidates rejected 
 at such examination shall not have the privilege of another examination for 
 admission to the same class, unless recommended by the board of examiners. — 
 (leJuly, 18G2, c. 18.3, s. 11, v. 12, p. 585. 17 April, 1866, c. 45, s. 5, v. 14, p. 38.) 
 
 expired on September 22, of each year; accord- 
 ingly held that a Member of Congress whose 
 candidate had failed on examination in Sep- 
 tember, 1878, did not have the right in January, 
 1879, to recommend another candidate for 
 special examination at once, or for the regular 
 examination in June, 1879, but that such 
 recommendation could not be made until 
 after March 5, 1879. (16 Op. Atty. Gen., 621, 
 modifying 10 Op. Atty. Gen., 46.) 
 
 Where the regulations of the Academy pro- 
 vided for mental examinations to be held in 
 
 Time of exaraination. — Section 1515, Re- 
 vised Statutes, is to be read as if the dates 
 fixed by the regulations of the Academy had 
 been expressly inserted therein. Where the 
 dates fixed by the rctgulations were June 11 
 and September 22 of each year, and under 
 eection 1514, Revised Statutes, as amended, 
 the date for notifying Representatives of 
 vacancies to be filled was "as soon after the 
 fifth of March in each year as possible," the 
 result was that the season for recommendations 
 and nominations begaa after March 5 and 
 
 748 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1517. 
 
 April and June of each year, and a physical 
 examination for those who qualified mentally, 
 held that a special examination in February 
 would be in advance of the time pro-vided 
 under the statute; accordingly a niunber of 
 midshipmen who were di'opped as a result of 
 the semiannual examination at the Academy 
 could not be, although renominated, reappoint- 
 ed in February upon passing a successful 
 physical examination and granted leave of 
 absence with pay until the summer coui'se at 
 the Academv beginning the 1st of July. (File 
 313-20, Feb.' 14, 1907.) 
 
 Power of Secretary of the Navy "with 
 respect to examinations. — By section 1515 
 of the Re\ised Statutes full power is given the 
 Secretary of the Navy over examinations for 
 admission. So far as the details of the exam- 
 inations are concerned, the Secretary may, if 
 he chooses, fix them. (36 J. A. G. letter book, 
 195, Mar. 19, 1907.) 
 
 Conformably to the authority granted the 
 Secretary of the Navy by section 1515, Revised 
 Statutes, it has been made a requii'ement that 
 candidates for appointment must "be of good 
 moral character." In the case of a midship- 
 man who had been dismissed from the Naval 
 Academy for ''intoxication and inaptitude," 
 and who had other reports on record against 
 him, the question of his eligibility for re- 
 appointment upon a new nomination is not 
 one of law but of fact, viz, whether or not his 
 dismissal from the Naval Academy and the 
 
 cause thereof, together with his record while 
 at the institution, indicates that he is not of 
 suf&ciently "good moral character" to be 
 readmitted as a midshipman. (File 5252-43, 
 Oct. 5, 1911.) 
 
 Reinstatement of midshipmen. — An 
 appointee is none the less a "candidate for 
 admission" subject to examination under 
 sections 1515 and 1516, Revised Statutes, and 
 the regulations, because he has already been 
 a member or inmate of the Academy. (25 
 Op. Atty. Gen., 585.) 
 
 Where the resignation of a naval cadet has 
 taken effect, he can not be reinstated except 
 by reappointment as cadet in conformity to 
 sections 1514 and 1515, Revised Statutes. 
 (19 Op. Atty. Gen., 350.) 
 
 In the matter of reappointment, midshipmen 
 who were dropped as a result of the semiannual 
 examination at the Academy, and are renom- 
 inated, stand on the same footing as candidates 
 for first appointment to the Academy. (File 
 313-20, Feb. 14, 1907.) 
 
 WTiether a midshipman dismissed from the 
 Naval Academy is eligible for reappointment 
 so far as his moral character is concerned is a 
 question of fact to be ascertained upon exam- 
 ination pursuant to the requii'ements pre- 
 scribed by the Secretary of the Navy under 
 section 1515, Revised Statutes. (File 5252-43, 
 Oct. 5, 1911.) 
 
 For other cases see notes to sections 1514, 
 1517, and 1519, Revised Statutes. 
 
 Sec. 1516. [Second recommendation.] Wlien any candidate who has been 
 nominated upon the recommendation of a Member or Delegate of the House of 
 Representatives is found, upon examination, to be physically or mentally dis- 
 c^ualified for admission, the Member or Delegate shall be notified to recommend 
 another candidate, who shall be examined according to the provisions of the 
 precedmg section.— (16 July, 1862, c. 183, s. 11, v. 12, p. 585. 17 July, 1866, 
 c. 45, s. 5, V. 14, p. 38.) 
 
 Second recommendation authorized only 
 in cases specified. — Where a cadet was nomi- 
 nated to the Naval Academy upon the recom- 
 mendation of a Memlier who was later unseated 
 by contest of election, the Secretary of the 
 Navy can not revoke such nomination and 
 notify the newly seated Member that a vacancy 
 occurs; he has no right to call for a new recom- 
 mendation, except under section 1516, Re- 
 vised Statutes, when the candidate fails to pass 
 his examination. (21 Op. Atty. Gen., 342.) 
 
 Where a midshipman was appointed upon the 
 recommendation of a Member, and the success- 
 
 or of such Member contended that the appoint- 
 ment was null and void for the reason that the 
 appointee did not possess the statutory quali- 
 fications, held that if this contention could be 
 sustained and the midshipman removed, the 
 vacancy thus existing could be filled, under the 
 statute, only by the selective appointment of 
 the Secretary; there would happen no case for 
 nomination or recommendation by the Repre- 
 sentative from the district to which such mid- 
 shipman had been credited. (28 Op. Atty. 
 Gen., 180.) 
 
 Sec. 1517. [Qualifications.] Candidates allowed for congressional dis- 
 tricts, for Territories, and for the District of Columbia must be actual residents 
 of the districts or Territories, respectively, from which they are nominated. 
 And all candidates must, at the time of their examination for admission, be 
 between the ages of fourteen and eighteen years, and physically sound, well 
 formed, and of robust constitution. — (14 July, 1862, c. 164, s. 9, v. 12, p. 565. 
 16 July, 1862, c. 183, s. 11, v. 12, p. 585. 1 April, 1864, c. 47, s. 2, v. 13, p. 39.) 
 
 749 
 
Sec. 1517. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 Amendments to this section were made by 
 act of March 2, 1889, section 2 (25 Stat., 
 87f)\ which provided that "after the 
 fourth day of March, eighteen hundred and 
 eighty-nino, the minimum age of admission 
 of cadets to the academy shall be fifteen 
 years and the maximum age twenty years;" 
 by act of March 8, 1903 (32 Stat., 1198), 
 which provided that "after January first, 
 nineteen hundred and four, all candidates 
 for admission to the Naval Academy at the 
 time of their examination must be between 
 the ages of sixteen and twenty years;" and 
 by act of May 14, 1918 (40 Stat., 550), 
 which provided that "hereafter all candi- 
 dates for admission to the Naval Academy 
 must be not less than sixteen years of age 
 nor more than twenty years of age on April 
 first of the calendar year in which they 
 enter the academy: Provided, That the 
 foregoing shall not apply to candidates for 
 midshipmen designated for entrance to the 
 academy in nineteen hundred and eight- 
 een." 
 Qualifications for appointments from enlisted 
 men of the Navy: See laws noted under 
 section 1513, Revised Statutes. 
 Not mandatory that candidate possess- 
 ing required qualifications be appointed. — 
 While the law says that a candidate must have 
 undergone a successful examination and possess 
 certain other qualifications before he can be 
 admitted to the academy, it does not say that 
 a candidate possessing those qualifications must 
 be admitted . 1 1 is by the act and permission of 
 the Secretary alone that a candidate having all 
 the qualifications is admitted to the academy. 
 (19 Op. Atty. Gen., 350. See also note to sec. 
 
 1514, R. S.) 
 
 Reinstatement of midshipman. — The 
 ages prescribed by law for admission to the 
 Naval Academy apply as well to one who has 
 already been a member of the Naval Academy 
 as to a new appointee. (File 5252-43:1, May 7, 
 1913.) 
 
 A midshipman at the Naval Academy who, 
 being found deficient in studies, presented his 
 resignation, which was accepted, can not be 
 reappointed to fill the vacancy thus created if 
 he is above the statutory age limit for original 
 appointment. (25 Op. Atty. Gen., 585.) 
 
 For other cases, see notes to sections 1514, 
 
 1515, and 1519, Revised Statutes. 
 Qualifications can not be reexamined 
 
 after appointment. — A nominee for the office 
 of midshipman in the Navy, whose qualifica- 
 tions have been regularly certified to by a Rep- 
 resentative in Congress, who has passed the 
 necessary mental and physical examinations 
 and received and accepted the appointment, 
 can not, in the absence of fraud, be deprived 
 of that office on the ground that he was not an 
 actual resident of the congressional district 
 whence he was appointed, although it should 
 afterwards appear that he was not such an ac- 
 tual resideiit. (28 Op. Atty. Gen., 180.) 
 
 The eligibility of a nominee having been 
 determined by a former Secretary of the Navy, 
 that action, in the absence of fraud, must be 
 regarded as final and not subject to reexamina- 
 tion under a subsequent administration. (28 
 
 Op. Atty. Gen., 180; see also note to sec. 417, 
 R. S.) 
 
 A statute which empowers an officer or tri- 
 bunal to appoint a person having certain qual- 
 ifications confers upon that officer or tribunal 
 the power to determine the qualifications and 
 eligiliility of the appointee. In this case the 
 law gives the Secretary of the Navy sole juris- 
 diction to hear, determine, and adjudge all 
 questions of qualifications, and his decision is 
 final in the absence of some provision for appeal 
 or review. Wlien the decision of the Secre- 
 tary of the Navy is made and promulgated, his 
 determination liecomes final and is res judicata 
 of all that is involved. (28 Op. Atty. Gen., 
 180.) 
 
 Age requirements can not be •w^aived. — 
 As the age qualifications are fixed by law, the 
 executive is without authority to waive the 
 statutory provisions on the subject. If it could 
 be shown that action had been taken in any 
 case contrary to law, such action could not be 
 regarded as a precedent. (File 5252-43:1, 
 May 7, 1913.) 
 
 Determination of qualifications by Rep- 
 resentative making recommendation. — 
 The statutory requirements as to residence and 
 age are as much directed to and obligatory upon 
 the Representative making the nomination as 
 they are with respect to the Secretary of the 
 Navy in making the appointment. His infi- 
 nitely better means and greater facilities for as- 
 certaining whether the nominee is a resident of 
 his district recommends this practice; and his 
 interest in his constituents, many of whom 
 would desire this place for their young sons, 
 should insure due care that no mere squatter or 
 sojourner by his recommendation should step 
 into the place to which one of them is entitled. 
 Accordingly, the Secretary of the Navy is not 
 derelict in duty when he assumes that such 
 Representative has performed his duty and re- 
 ported correctly upon the qualifications and 
 eligibility of the nominee; and it is not an un- 
 reasonable practice for the Navy Department 
 to devolve upon the Representative in Congress 
 the duty of ascertaining and reporting with his 
 nomination that the nominee has the required 
 qualifications, including that of residence; and 
 to act upon his statement unless something to 
 the contrary appears. (28 Op. Atty. Gen., 
 180.) 
 
 Requirements as to residence. — The 
 words, "an actual and bona fide resident of the 
 State, Congressional district, or Territory in 
 which the vacancy will exist," employed in 
 the act of June 29, 1906 (34 Stat., 578— noted 
 under sec. 1514, R. S.), providing for the nomi- 
 nation of midshipmen for admission to the Naval 
 Academy, require the appointee to be "actu- 
 ally domiciled" in the State where he is ap- 
 pointed; this, however, does not necessarily 
 mean actual physical presence. A naval officer 
 whose home is at Athens, N. Y., but who has 
 for some time past been stationed in Ports- 
 mouth, N. H., is a legal resident and voter in 
 Athens, N. Y., which is also the actual bona 
 fide residence of his minor son, notwithstanding 
 the latter has for several years been living with 
 his father and physically present at Portsmouth, 
 N. H. The son is therefore eligible for nomi- 
 nation upon recommendation of the Senator 
 
 750 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1519. 
 
 from New York, by whom this question was 
 raised. (28 Op. Atty. Gen., 41.) 
 
 Section 1517, Revised Statutes, requires 
 that candidates must be "actual residents" 
 of the districts or territories from which they 
 are nominated. The act of June 29, 1906 
 (34 Stat., 578), provides that candidates shall 
 be ' ' actual and bona fide " residents of the State, 
 congressional district, or Territory in which 
 the vacancy will exist. It is manifest that 
 the main purpose of this requirement of resi- 
 dence is the fair distribution of these appoint- 
 ments among the several States, Territories, 
 congressional districts, and the District of 
 Colimibia, and to that end to prohibit the filling 
 of a vacancy in one by a resident of another. 
 But the statutes require that candidates must 
 be between specified ages, so that the question 
 is confined to the residence of an infant. It 
 is well settled that the residence of a minor 
 son is that of his father, and that this continues 
 even after the death of the father until the 
 minor acquires in some way another legal 
 residence. Therefore, if the father of a nominee 
 is a resident of the locality in which the vacancy 
 is about to occur, that residence is also the 
 residence of his minor son. (28 Op. Atty. 
 Gen., 41.) 
 
 The minor son of an Army officer stationed 
 for the last two years at Governor's Island, 
 N. Y., who has been physically present and 
 attending school in New York City, is not an 
 actual and bona fide resident of the State of 
 New York, but of Virginia, which is the legal 
 residence of his parent, unless he has become 
 entitled to or attempted to establish an actual 
 residence separate and apart from his father; 
 and is not, therefore, eligible for nomination 
 upon recommendation of the Senator from 
 New York, by whom this question was raised. 
 (28 Op. Atty. Gen., 41.) 
 
 Reqviireinents as to age. — The words 
 "between the ages of fourteen and seventeen," 
 in the act of July 16, 1862, section 11, regulating 
 appointments to the Naval Academy, are 
 unambiguous and too plain for construction. 
 A boy who happens to be below 14 years of age 
 or above 17 is certainly not between those ages; 
 there is no " ' rigor " in the case, but only a fixing 
 of a qualification of age, as the Constitution 
 does in regard to the President and the members 
 of both houses of Congress; accordingly all who 
 have "'attained to seventeen years of age" 
 are excluded from appointment. (10 Op. 
 Atty. Gen., 315; see also note to sec. 1370, 
 R. S., concerning age of candidates for ap- 
 pointment as naval officers. ) 
 
 Sec. 1518. [Appropriations, how applied.] No money appropriated for the 
 support of the Naval Academy shall be applied to the support of any mid- 
 shipman appointed otherwise than in strict conformance with the provisions 
 of this chapter.— (21 May, 1864, c. 93, s. 1, v. 13, p. 84.) 
 
 Sec. 1519. [Midshipmen found deficient.] Cadet midshipmen found defi- 
 cient at any examination shall not be continued at the Academy or in the service 
 unless upon the recommendation of the academic board. — (16 July, 1862, c. 
 183, s. 11, V. 12, p. 585. 23 June, 1874, c. 453, v. 18, p. 203.) 
 
 Amendment to this section was made by act of 
 June 5, 1920 (41 Stat., 1028), wliich pro- 
 vided "that until otherwise pro\dded by 
 law no midshipman found deficient at the 
 close of the last and succeeding academic 
 terms shall be involuntarily discontinued 
 at the Naval Academy or in the service un- 
 less he shall fail upon reexamination in the 
 suljjects in which found deficient at an 
 examination to be held at the beginning of 
 the next and succeeding academic terms, 
 and the Secretary of the Na\-y shall pro- 
 vide for the special instruction of such 
 midshipmen in the subjects in which found 
 deficient during the period between aca- 
 demic terms." 
 
 "Cadet-midshipmen," title changed to "naval 
 cadets" and later changed to "midship- 
 men" by laws noted under section 1512, 
 Revised Statutes. 
 
 Coiu-t-martial of midshipmen . — By act of June 
 23, 1874 (18 Stat., 203), it was provided that 
 "in all cases where it shall come to the 
 knowledge of the Superintendent of the 
 Naval Academy, at Annapolis, that any 
 cadet-midshipman or cadet-engineer has 
 been guilty of the offense commonly 
 known as hazing, it shall be the duty of 
 said Superintendent to order a court-mar- 
 
 tial, composed of not less than three com- 
 missioned officers, who shall minutely ex- 
 amine into all the facts and circumstances 
 of the case and make a finding thereon ; and 
 any cadet-midshipman or cadet-engineer 
 found guilty of said offense by said court 
 shall, upon recommendation of said court 
 be dismissed; and such finding, when ap- 
 proved by said Superintendent, shall be 
 final ; and the cadet so dismissed from said 
 Naval Academy shall be forever ineligible 
 to reappointment to said Naval Academy." 
 
 Court-martial of midshipmen. — By act of March 
 2, 1895 (28 Stat., 838), it was provided "that 
 the Secretary of the Na\y shall have power 
 to convene general courts-martial for the 
 trial of naval cadets, subject to the same 
 limitations and conditions now existing as 
 to other general courts-martial, and to ap- 
 prove the proceedings and execute the sen- 
 tences of such courts, except the sentences 
 of suspension and dismissal, which, after 
 ha^dng been approved by the Superinten- 
 dent, shall not be carried into effect until 
 confirmed by the President." 
 
 Court-martial of midshipmen. — By act of March 
 3, 1903 (32 Stat., Ii98), it was provided 
 "that the superintendent of the Naval 
 Academy shall make such rules, to be ap- 
 
 751 
 
Sec. 1519. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 proved ])y the Secretary of the Navy, as 
 will effectually prevent the ))ractiee of 
 hazint;; and any cadet found guilty of par- 
 ticipating in or encouraging or countenanc- 
 ing such practice shall be summarily ex- 
 pelled from the Academy, and shall not 
 thereafter be reapjjointea to the corps of 
 cadets or be eligible for api)ointment as a 
 commissioned officer in the Army or Navy 
 or Marine ('ori)s until two years after the 
 graduation of the class of which he was a 
 member." (See 25 Op. Atty. Gen., 543, 
 noted below.) 
 
 Dismissal without court-martial. — By act of 
 Ajml 9, 1906, section 1 (34 Stat., 104), it 
 was provided "'that it shall be the duty of 
 the Superintendent of the United States 
 Naval Academy, whenever he shall believe 
 the continued presence of any midship- 
 man at the said academy to be contrary to 
 the best interests of the 8er\'ice, to report 
 in writing such fact, with a full statement 
 of the facts upon which are based his rea- 
 sons for such belief, to the Secretary of the 
 Navy, who, if after due consideration of 
 the said report he shall deem the superin- 
 tendent's said belief reasonable and well 
 ' founded, shall cause a copy of the said 
 report to be served upon the said midship- 
 man and require the said midshipman to 
 show cause, in writing and within such 
 time as the said Secretary shall deem rea- 
 sonable, why he should not be dismissed 
 from the said academy; and after due con- 
 sideration of any cause so shown the said 
 Secretary may, in his discretion, but with 
 the written approval of the President, dis- 
 miss such midshipman from the said acad- 
 emy. And the truth of any issue of fact so 
 raised, except upon the record of demerit, 
 shall be detennined by a board of inquiry 
 convened by the Secretary of the Navy 
 under the rules and regulations for the gov- 
 ernment of the Navy." 
 
 Hazing, punishment for. — The act of April 
 9, 1906 (34 Stat., 104, 105), contains the 
 following provisions: "Sec. 2. That so 
 much of the Acts approved June twenty- 
 third, eighteen hundred and seventy-four, 
 and March third, nineteen hundred and 
 three, aa requires the Superintendent of 
 the United States Naval Academy to con- 
 vene a court-martial in all cases when it 
 shall come to the knowledge of the said 
 superintendent that any midshipman has 
 been guilty of the offense commonly known 
 as 'hazing,' and declares the finding of a 
 court-martial so convened, when approved 
 by the said superintendent, final, and 
 directs that any midshipman found guilty 
 by such court-martial shall be summarily 
 dismissed from the said academy, and also 
 p.'.l other Acts or parts of Acts inconsistent 
 with the present Act are hereby repealed, 
 and that the offense known as 'hazing' 
 may hereafter be proceeded against, dealt 
 with, and punished as offenses against 
 good order and discipline and for viola- 
 tion and breaches of the rules of said 
 academy. But no midshipman shall be 
 dismissed for a single act of hazing except 
 
 under the provisions of section three of 
 this Act. 
 
 "Sec. 3. That the Superintendent of the 
 United States Naval Academy may, in 
 his discretion and with the approval of the 
 Secretary of the Navy, cause any mid- 
 shipman in the said academy to be tried 
 by court-martial for the offense of hazing, 
 as provided by the Act approved June 
 twenty-third, eighteen hundred and 
 seventy-four, and such court-martial, upon 
 conviction, may sentence such midship- 
 man to any punishment authorized by 
 the said Act or by the Act approved March 
 third, nineteen hundred and three, or 
 authorized for any \'iolationor breach of the 
 rules of the said academy by thesaid rules, 
 or, in cases of brutal or cruel hazing may, in 
 addition to dismissal, sentence such mid- 
 shipman to imprisonment for a period not 
 exceeding one year: Provided, That such 
 midshipman shall not be confined in a 
 military or l^a^•al prison or elsewhere with 
 men who have been convicted of crimes 
 or misdemeanors; and such finding and 
 sentence shall be subject to review by the 
 convening authority and by the Secretary 
 of the Navy, as in the cases of other courts- 
 martial. 
 
 "Sec. 4. That the offense of 'hazing,' 
 as mentioned in this Act, shall consist of 
 any unauthorized assumption of authority 
 by one midshipman over another mid- 
 shipman whereby the last-mentioned mid- 
 shipman shall or may suffer or be exposed to 
 suffer any cruelty, indignity, humiliation, 
 hardship, or oppression, or the deprivation 
 or abridgment of any right, privilege, or 
 advantage to which he shall be legally 
 entitled . 
 
 "Sec. 5. That it shall be the duty of 
 every professor, assistant professor, aca- 
 demic ofiicer, or any cadet officer or cadet 
 petty officer, or instructor, as well as every 
 other officer stationed at the United States) 
 Naval Academy, to promptly report tc 
 the superintendent thereof any fact which 
 comes to his attention tending to indicate 
 any \dolation by a midshipman or mid- 
 shipmen of any of the provisions of this 
 Act or any violation of the regulations of 
 the said academy. Any naval officer 
 attached to the academy who shall fail to 
 make such report as provided in this section 
 shall be tried by court-martial for neglect 
 of duty and if convicted he shall be dis- 
 missed from the service. Any civilian 
 instructor attached to the academy who 
 shall fail to make such report as provided 
 in this section shall be dismissed by the 
 superintendent of the academy upon the 
 approval of the Secretary of the Navy." 
 Act of June 5, 1920, construed. — The act 
 of June 5, 1920 (above quoted), in so far aa it is 
 not retroactive, is amendatory of section 1519, 
 Revised Statutes, and provides for a second ex- 
 amination of the midshipmen found deficient at 
 the examination at the close of the term, before 
 the Academic Board shall pass upon the ques- 
 tion of whether they shall be continued at the 
 academy. It ap])lies equally to the annual 
 and semiannual examinations for the expression 
 
 752 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1519. 
 
 ' ' term " and not ' ' year "' is used in the act. (32 
 Op. Atty. Gen., 294.) 
 
 Under the NaA^al Academy Regulations the 
 period intervening between the hrst term and 
 second term of the academic year amounts to 
 one day, which is Sunday, so that the amount 
 of special instruction which could l)e imparted 
 to midshipmen found deficient at the semian- 
 nual examination would be practically negligi- 
 ble, but an interpretation of the act requires 
 that they be allowed to take a second examina- 
 tion. (32 Op. Atty. Gen., 294.) 
 
 Midshipmen found deficient at the annual 
 examinations at the close of the academic term, 
 held May 24-29, 1920, whose retention at the 
 academy or in the ser\'ice had not been recom- 
 mended by the Academic Board and whose res- 
 ignations had been duly submitted and accepted 
 by the Secretary of the NaAy on June 1, 1920, 
 are not entitled to the benefits of the act of 
 June 5, 1920. The reinstatement of such mid- 
 sliipmen could not take place otherwise than 
 by appointment by the Secretary of the Navy, 
 and in so far as it is intended to affect such mid- 
 shipmen the said act is contrary to the Consti- 
 tution relating to appointment of officers of the 
 United States (32 Op. Atty. Gen., 294, citing 
 19 Op. Atty, Gen., 350, U. S. v. Germaine, 99 
 U. S., 508, U. S. V. Mouat, 124 U. S., 303, 307). 
 
 Academic Board. — The Academic Board 
 was not of statutory creation. Like many other 
 things connected with the Naval Academy it 
 was a piece of "departmental legislation," but 
 it has since been recognized by law. The 
 " Regulations of the United States Naval Acad- 
 emy, 1867," page 10, chapter 2, under the 
 heading, "Academic Board," declared that 
 "the Academic Board shall be composed of the 
 following officers: The superintendent; the com- 
 mandant of midshipmen; four senior assistants 
 to the commandant of midshipmen; and the 
 heads of the departments of mathematics; 
 steam enginery; astronomy, na\agation, and 
 survey; natural and experimental philosophy; 
 ethics, and English studies; French language; 
 Spanish language; drawing." It further pro- 
 vided that the Academic Board should be con- 
 vened for the transaction of business at the call 
 of the superintendent; that a majority of the 
 voting members should constitute a quorum. 
 Its duties were defined and appertained gen- 
 erally to the internal management of the Acad- 
 emy and the prosecution of studies. Among 
 the statutes recognizing the Academic Board is 
 section 1519, Revised Statutes, which is based 
 upon an act passed July 16, 1862. (File 5146, 
 June 23, 1906.) 
 
 Jurisdiction of Academic Board and 
 Secretary of the Navy. — Sections 1519 and 
 1525, Revised Statutes, leave no right in the 
 Secretary of the Navy to continue at the Acad- 
 emy cadets who have been found, at any exam- 
 ination, deficient in their studies, without the 
 recommendation of the Academic Board. 
 These sections appear to be wise and according 
 to the reason of the thing; and in their absence 
 it would only be in very rare and hardly con- 
 ceivable instances that the "care and super- 
 vision " intrusted by article one (Regs. 1876) to 
 the Secretary of the Navy could authorize an 
 unrecommended revision of a sentence for de- 
 ficiency. Pro re nata intervention by the Secre- 
 
 tary would lead to insubordination on the part 
 of students, and would become a fruitful parent 
 of discord amongst the authorities of the 
 Academy. (15 Op. Atty. Gen., 634.) 
 
 Sections 1519 and 1525, Revised Statutes, ex- 
 pressly provide that cadet midshipmen and 
 cadet engineers, or naval cadets as they are now 
 all designated, "found deficient at any exami- 
 nation," shall not be continued at the Academy 
 or in the service "except" or "unless" upon 
 the recommendation of the Academic Board. 
 A regulation of the Naval Academy to the same 
 effect had been in force for some years when the 
 legislation now embodied in those sections was 
 enacted, and the reason for this interference of 
 Congress was, no doubt, to prevent the bad 
 effect on the discipline of the institution pro- 
 duced by the occasional, and perhaps not al- 
 ways well considered, interferences of the Navy 
 Department with the operation of that execu- 
 tive regulation. (19 Op. Atty. Gen., 302.) 
 
 Where certain naval cadets were found de- 
 ficient at the semiannual examinations held at 
 the Naval Academy in January 1889, and with- 
 out the recommendation of the Academic Board 
 were granted leave of absence by the Secretary 
 of the Navy with permission to report to the 
 Superintendent of the Academy to join the 
 next fourth class: Held, that the Secretary had 
 no power to continue these cadets in the Acad- 
 emy without the recommendation of the Aca- 
 demic Board. (19 Op. Atty. Gen., 302.) 
 
 Whenever a midshipman is found deficient 
 in his studies as the result of any examination, 
 the determination of the Academic Board is 
 final and conclusive. (File 5146-1, July 13, 
 1906.) 
 
 By section 1515, Revised Statutes, full power 
 is given the Secretary of the Navy over exam- 
 inations for admission: Held, that he also has 
 power of final control over all other examina- 
 tions. In the first instance the details of the 
 examinations are naturally under the super- 
 vision of the Academic Board, which is a body 
 recognized by the statutes. Clearly the Secre- 
 tary has not the power to order the Academic 
 Board to recommend the retention of a mid- 
 shipman found deficient at any examination; 
 but it would seem that, so far as the details of 
 the examinations are concerned, the Secretary 
 may, if he choose, fix them. (36 J. A. G. letter 
 book, 195, Mar. 19, J 907.) 
 
 Deficiency in conduct. — It has been cus- 
 tomary for the Academic Board to recommend 
 the dropping, turning back, or retention of 
 midshipmen by reason of conduct, simultane- 
 ously with similar recommendations founded 
 upon proficiency or the reverse in their studies; 
 but, while in the latter case the midshipmen 
 are subjected to an examination and the results 
 of this examination are highly material in de- 
 termining the recommendations of the board, 
 in the former case these recommendations are 
 founded entirely upon the records of the mid- 
 shipmen and no one is in fact "found defi- 
 cient" in conduct "at any examination." 
 Held, therefore, to be doubtful whether section 
 1519 ever applied to midshipmen found de- 
 ficient in conduct; further held that, if api)li- 
 cable to such case, the act of April 9, 1906, 
 section 1 (34 Stat., 104, quoted above), must be 
 
 753 
 
Sec. 1519. 
 
 ri.2. REVISED STATUTES. 
 
 The Navy. 
 
 considered as repealinp;, pro tanto, section 
 1519. (File 514()1, July i:il!)0(i.) 
 
 Whenever a inidsliipinan is found deficient 
 in his studies aa the result of any examination, 
 the determination of the Academic Board is 
 final; when found deficient in conduct, the 
 procedure prescribed by the act of April 9, 
 100(), must be followed. (File 5146-2, Feb. 
 13, 1907.) 
 
 It seems quite clear from the act of April 9, 
 1906, that amonp; the grounds on which Congress 
 expected midshipmen to be dismissed was an 
 excess of demerit^, since in the words of that 
 act pro\ision is evidently matle for that very 
 contingency. Nothing is said in this law as to 
 the dismissal of midshipmen through the action 
 of the Academic Board, but unless provision 
 for such dismissal had been made in express 
 and unequivocal terms in some law existing at 
 the time of the enactment of said act, it would 
 seem clear that, upon established principles of 
 statutory construction, this method of dismis- 
 sal for misconduct and the procedure incident 
 thereto were intended by Congress to be ex- 
 clusive of any others. (File 5146-1, July 13, 
 1906.) 
 
 Dismissal for accumulated demerits has al- 
 ways been treated by the Navy Department as 
 dismissal for misconduct. (25 Op. Atty. Gen., 
 579.) 
 
 Physical deficiency. — Under Revised Stat- 
 utes, section 1519, providing that cadet mid- 
 shipmen found deficient at any examination 
 shall not be continued at the Academy unless 
 upon the recommendation of the Academic 
 Board, a cadet found physically ineligible for 
 appointment in the Navy or Marine Corps has 
 no right to remain at the Academy unless upon 
 recommendation of the Academic Board. 
 Where, under such circumstances, the Aca- 
 demic Board found the cadet proficient for the 
 six years' course and complimented him Avith 
 a certificate of graduation, he having served 
 nearly the required six years, and the Secretary 
 of the Navy disfharged him from the service 
 on the same date on account of physical dis- 
 ability, he is technically a graduate but not 
 entitled to one year's pay under the act of 
 August 5, 1882 (22 Stat., 284, quoted under 
 sec. 1522, R. S.), notmthstanding there was at 
 the time of his discharge a surplus of graduates 
 for whom no vacancies existed in the lower 
 grades. (Potter v. U. S., 34 Ct. Cls., 13.) 
 
 A mid.shipman found deficient in any ex- 
 amination and not having the recommendation 
 of the Academic Board has no right to remain 
 at the Academy. One who graduated from the 
 Academy after the act of March 7, 1912 (37 
 Stat., 73, reducing the cour.'^e to four years), 
 but "on leave of absence awaiting physical 
 reexamination to determine fitness for com- 
 mission as ensign," is in the pay status of a 
 midshipman at the Academy and entitled to 
 pay at $600 per annum, provided he is contin- 
 ued in the service upon the recommendation 
 of the Academic Board. (20 Comp. Dec, 141.) 
 
 A mid.shipman completed the six years' 
 course and was found proficient by the Aca- 
 demic Board on examination for final graduation, 
 but deficient by the medical examining board, 
 and was continued in the service until it could 
 be determined whether his disability was of a 
 
 permanent or temporary nature. He finally 
 pa.ssed his phy.sical examination and was 
 appointed ensign. Paragraph 169 of the Reg- 
 ulations of the United States Naval Academy, 
 1909, enumerates the subjects which the ex- 
 amination for final graduation shall embrace, 
 but such enumeration does not inc;lude a 
 physical examination. Paragraph 167 pro- 
 vides that "no midshipman shall pass from a 
 lower to a higher class, perform the two years' 
 service afloat, or be appointed in the lower 
 grades of any branch of the service until he 
 shall have been examined by a board of not less 
 than three medical officers of the Navy and 
 pronounced physically qualified to perform 
 all his duties." Held, that the successful 
 passing of a physical examination is not a 
 prerequisite to the final graduation of a mid- 
 shipman, but is merely a condition precedent 
 to his promotion or appointment in the lowest 
 grades of the line of the Navy and Marine 
 Corps, and therefore in this case the midship- 
 man finally graduated with his class at the 
 termination of his six years' course, and that 
 the date of his final graduation was the same date 
 as the final graduation of his class. (16 Comp. 
 Dec, 734.) 
 
 Naval cadets who were found mentally and 
 professionally qualified upon the graduating 
 examination of their class are entitled to a 
 certificate of graduation notwithstanding that 
 they were reported as physically disqualified 
 for the naval service. There is no authority 
 in the law for stating their physical disqualifi- 
 cation in the certificates to be given them, 
 for the reason that physical condition does not 
 enter into the idea of graduation except in 
 80 far as graduation presupposes a sound physi- 
 cal condition at the time of admission to the 
 Academy. Such a statement would be objec- 
 tionable as out of place, which is alone a good 
 reason for omitting it. (19 Op. Atty. Gen., 
 358.) 
 
 See below, "Deficiency upon examination 
 for commission." 
 
 Deficiency upon examination for com- 
 mission. — The recommendation of the Aca- 
 demic Board , that a midshipman found deficient 
 upon examination for appointment as ensign 
 be dropped from the service, is not final. The 
 laws providing for the appointment of ensigns 
 do not confer exclusive powers upon the 
 Academic Board; section 1519, Revised Stat- 
 utes, is properly limited to "academic exam- 
 inations," and does not extend to the final 
 examination which is to determine the mid- 
 shipman's fitness for a commission in the Navy. 
 That section was passed in the interest of 
 efficient administration and internal disci- 
 pline of the Naval Academy, and should not 
 1)6 read into the laws providing for the appoint- 
 ment of ensigns. A contrary conclusion woukl 
 deprive the constitutional appointing power of 
 all jurisdiction over the qualifications of candi- 
 dates for appointment as ensigns. Held, 
 therefore, that the recommendation of the 
 Academic Board in this case may be dis- 
 approved and the midshipman continued in 
 the service until further reports on fitness in 
 his case may be received and considered by the 
 department. (File 5252-36, May 5, 1910.) 
 
 754 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1519. 
 
 A midshipman who develops a physical 
 defect, which it is anticipated might in the 
 future incapacitate him for duty in the Navy, 
 may legally tender his resignation, undated, 
 and place same in the hands of the depart- 
 ment -^vith request that same be dated and 
 accepted if he should be subsequently found 
 incapacitated for service or for promotion by 
 reason of said physical defect or the sequelae 
 thereof; and upon so tendering his undated 
 resignation said physical defect may be waived 
 and a commission issued to him as ensign. 
 The dating and accepting of said resignation 
 upon the occurrence of the condition stated 
 would be entirely legal. (File 5252-50, Maj^ 
 14, 1912, citing Mimmack's Case, 12 Op. Attv. 
 Gen., 555, 10 Ct. Cls., 584, 97 U. S., 426. See 
 also file Nos. 13261-163-170 concerning waivers 
 of rights to pensions, retirement, etc., by 
 candidates for appointment as second lieu- 
 tenants in the Marine Corps.) 
 
 The final graduation of midshipmen occurs 
 two years from the date of their formal gradu- 
 ation from the four years' course, and a mid- 
 shipman who, when the date of final gradua- 
 tion arrived, was qualified for final graduation 
 aside from a failure to pass in some subjects of 
 professional examination, and who subsequent- 
 ly qualified in those sul)jects and was given a 
 certificate of final graduation became a gradu- 
 ated midshipman from said date of final grad- 
 uation. (17 Comp. Dec, 298.) 
 
 See above, "Physical deficiency." 
 
 Suspension of midshipman without 
 pay. — Where it is within the power of the 
 Secretary of the Navy, with the approval of 
 the President, to dismiss a midshipman, he 
 may, with the approAal of the President, sus- 
 pencl such midshipman for one year without 
 pay for due cause. Since the power to suspend 
 is derived from the power to dismiss absolutely, 
 only such midshipmen as may be subject to 
 dismissal can be so suspended. (C. M. 0. 
 31-1915, citing file 5252-72, Sept. 20, 1915.) 
 
 A midshipman suspended for one year 
 under an order of the Secretary of the Navy, 
 with the written approval of the President, 
 which order stated that said suspension was 
 "without pay," is debarred from all the privi- 
 leges and benefits of hie office during said 
 period, including commutation of rations; 
 during the year of suspension the midshipman 
 is practically in the status of one dismissed. 
 (Comp. Dec, Nov. 13, 1915, 177 S. and A. 
 Memo., 3830.) 
 
 The Secretarjr of the Navy, with the approval 
 in writing of the President, may suspend a mid- 
 shipman for one year without pay for due cause, 
 but only such midshipmen as are subject to dis- 
 missal can be so suspended. A midshipman 
 can not be suspended for one year without pay 
 except in mitigation of a legally authorized pun- 
 ishment invohing dismissal. The law ex- 
 pressly provides that a midshipman can be dis- 
 missed for a single act of hazing only pursuant 
 to the sentence of a court-martial. Since the 
 Secretary of the Navy, acting for the President, 
 can not directly dismiss a midshipman for one 
 act of hazing without sentence of court-martial, 
 it follows that he can not accomplish such dis- 
 missal by any indirect means; and if it were 
 legal to suspend a midshipman without pay for 
 
 one year in such case, it would be legal to sus- 
 pend him without pay indefinitely, which 
 would amount in effect to a dismissal. (File 
 5252-72 : 1, Sept. 21, 1915, afiirming file 5252- 
 72, Sept. 20, 1915.) 
 
 Where a cadet at the Military Academy had 
 been recommended by the Academic Board to 
 be discharged on account of deficiency in stud- 
 ies, the Secretary of War had power to grant 
 such cadet leave of absence without pay; under 
 the circmnstances he might lawfully have dis- 
 charged the cadet absolutely, and the placing 
 of him on leave of absence was a minor exercise 
 of the power of dismissal. The cadet's status 
 thereby became that of an officer continued on 
 the rolls without pay, instead of that of an offi- 
 cer dismissed absolutely and di-awing no pay. 
 (10 Comp. Dec, 795.) 
 
 See note to section 416, Re^ised Statutes, 
 under "Suspension of employees." 
 
 Dismissal ■without court-martial. — Sec- 
 tion 1624, Revised Statutes, article 36, restrict- 
 ing dismissal of officers of the Navy, does not 
 extend to cadets at the Naval Academy, who 
 may accordingly be dismissed from the Acad- 
 emy and from the naval ser\'ice for misconduct 
 without trial by court-martial. There are 
 three sorts of officers known to the Na\"y, viz, 
 commissioned, warrant, and petty (sec. 1410, 
 R. S.); and inasmuch as petty officers may be 
 discharged from the service with bad conduct 
 discharge by sentence of a smnmary court- 
 martial (sec. 1624, R. S., art. 30), it seems that 
 by "officers" in article 36 is meant at most only 
 warrant and commissioned officers. Cadets at 
 the Naval Academy have neither warrants nor 
 commissions; the object of the studies and dis- 
 cipline to which they are subjected dming the 
 whole of the course at the Academy is to fit them 
 for appointment as midshipmen (sec. 1521, R. 
 S.), the lowest commissioned grade of officers 
 of the line (sec. 1362, R. S.), or as second assist- 
 ant engineers (sec. 1394, R. S.), the lowest grade 
 of officers of the Engineer Corps (sec. 1476, R. 
 S.). They are themselves, by statutory defini- 
 tion, not to be included in general in legisla- 
 tion confined to "officers" of the Navy. In 
 the early days of the Academy, when the stu- 
 dents were merely a collection of midshipmen, 
 this was different. The meaning of the word 
 "cadet" is to the same effect. As a cadet- 
 midshipman is, ex \i termini, not a midship- 
 man, and a cadet-engineer not an engineer, so 
 a cadet officer or a cadet, simply, is not an offi- 
 cer. Cadets at Annapolis are not liable to 
 court-martial except under the act of 1874 for 
 hazing (citing 1 Op. Atty. Gen., 276, holding 
 that cadets at West Point are subject to court- 
 martial only where expressly authorized by 
 law), and therefore are not entitled to a priv- 
 ilege which, under article 36, is evidently given 
 only to such as are liable in general to the juris- 
 diction of courts-martial. Accordingly, held 
 that a regulation of 1876, providing that ca/lcts 
 are to be dismissed by the Secretary of the 
 Naw for offenses other than hazing, is valid. 
 (15 Op. Atty. Gen., 634.) 
 
 The President has power to dismiss a delin- 
 quent midshipman from the Naval Academy 
 for violation of the regulations, and that pow er 
 is not restricted by sections 1229 and 1624 of the 
 Revised Statutes. (Weller v. U. S., 41 Ct. 
 
 755 
 
Sec. 1519. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 ("Is., 324.) The Secretary of the Navy's action 
 an February 7, 1!)05, in dismissing a midship- 
 man from the Naval Academy for continued 
 violation of the regulations regarding the use of 
 tobacco, is presmnetl to have been the action 
 of the President; particularly as the President 
 appointed another to till the vacancy, which 
 appointment was signed by the Secretary of 
 the Na\'y by direction of the President. (Wel- 
 lert'. U. S.,4lCt. 01s., 324.) 
 
 Under the act of March 2, 1895, the Secretary 
 is given power to convene courts-martial for the 
 trial of naval cadets, but it is not mandatory, 
 and the President has the power and authority 
 to dismiss naval cadets, or "' midshipmen, " aa 
 they are now styled, without the intervention 
 of trial by court-martial. (Weller v. U. S., 41 
 Ct. Cls., 324.) 
 
 The act of March 2, 1895, and the other laws 
 relating to the Naval Academy have for many 
 years been construed by the Navy Department 
 to authorize the dismissal of students without 
 trial by court-martial, which has often been 
 done. Wliere the meaning of a statute is doubt- 
 ful, the uniform and long-continued construc- 
 tion placed upon it by the department officers 
 charged with its execution is entitled to much 
 weight. (Weller v. U. S., 41 Ct. Cls., 324.) 
 
 It will not be contended that a midshipman 
 at the Naval Academy can not be dismissed, or 
 "not continued therein," which is the same 
 thing, for deficiency at an examination with- 
 out a trial by coiu-t-martial ; and if the Academic 
 Board can do this, the President can dismiss a 
 midshipman because of a deficiency in conduct, 
 as insubordination or disobedience of orders, 
 particularly when the regulations so provide. 
 (Weller v. U. S., 41 Ct. Cls., 324.) 
 
 That students at the Naval Academy are and 
 always have been in the naval ser\ice in some 
 capacity has never been doubted, and it was 
 decided in Cook v. United States (128 U. S., 
 254) that they were "officers" of the United 
 States A\ ithin the meaning of the provisions of 
 the act of March 3, 1883 (22 Stat., 473), respect- 
 ing longevity pay of officers of the Navy. In the 
 case of Morton v. United States (112 U. S., 1), 
 under a similar statute providing longevity 
 pay, it was held that the time of service of a 
 military cadet at West Point is to be regarded 
 as "actual service in the Army." In Hartigan 
 V. United States (196 U. S., 1G9, 38 Ct. Cls., 
 346) the claimant was summarily dismissed 
 from the West Point ]\lilitary Academy for mis- 
 conduct, and it was held, both in the Court of 
 Claims and in the Supreme Court that he was 
 not an officer within the meaning of section 
 1229, Revised Statutes, and hence could be dis- 
 missed without trial and conviction l)y court- 
 martial. It is not believed that the law, prop- 
 erly construed, makes any distinction in this 
 respect between midshipmen at the Naval 
 Academy and cadets at the Military Academy. 
 Neither of them holds either a commission or a 
 warrant; both are appointed by the President; 
 those at the Military Academy are called cadets, 
 and those at the Naval Academy are now called 
 midshipmen. There may have been a time in 
 the history of the Government when a midship- 
 man should have been regarded as an officer 
 within the meaning of section 1229, Revised 
 Statutes, and when the students at the Naval 
 
 Academy were on a different footing in that 
 regard than the students at the Military Acad- 
 emy; but now there are no midshipmen except 
 those appointed to the Naval Academy and 
 undergoing instruction therein or in connection 
 therewith. Under section 1519 midshipmen 
 found deficient at any examination may be 
 dropped from the service. Under section 1547 
 the Secretary of the Navy, with the approval 
 of the President, may issue regulations and 
 instructions for the Navy, and the regulations 
 of the Naval Academy providing for the dis- 
 missal of midshipmen were presumably made 
 pursuant to such power. (Weller v. U. S., 41 
 Ct. Cls., 324.) 
 
 In the case of Hartigan v. United States (196 
 U. S., 169, 38 Ct. Cls., 346), which held that a 
 cadet at the Military Academy was not an 
 officer within the meaning of section 1229, both 
 courts in their opinions point out a clear dis- 
 tinction between service at the Academy and 
 in the Army, and that while the military cadets 
 are a part of the Army they are not officers of 
 the Army, but rather are undergoing instruction 
 to become such; and in the opinion of the 
 Court of Claims this significant expression oc- 
 curs: "These appointments (to the Academy) 
 are made l)y the President without the ad\ace 
 and consent of the Senate, and it seems plain 
 that Congress did not intend by any legislation 
 that had been enacted to withhold from him 
 the power of summary dismissal for the good of 
 the academv, for such a power can wisely be 
 left to his discretion." (Weller v. U. S., 41 Ct. 
 Cls., 324.) 
 
 The case of Perkins v. United States (116 
 U. S., 483, 20 Ct. Cls., 438), where the claimant 
 entered the academy as a cadet-engineer and 
 after graduation therefrom was held by both 
 courts to be an officer within the meaning of 
 section 1229, Revised Statutes, differs from 
 that of an undergraduate midshipman at the 
 Naval Academy, in that the former was 
 appointed pursuant to sections 1522-1525, 
 Revised Statutes, then in force, which required 
 some technical knowledge before admission; 
 that he had graduated from the Naval Academy 
 and had served in the Na\'y two years under 
 orders; that the course then prescribed for 
 cadet-engineers was four years (sec. 1524, R. 
 S.), so that he was no longer a cadet and neces- 
 sarily must have been an officer of some grade, 
 and by his pay had been so recognized. It 
 should also be remarked that it was conceded 
 in the Perkins case that the claimant might 
 have been dismissed for misconduct, under 
 the provisions of section 1525, Revised Statutes, 
 entirely independent of section 1229. (Weller 
 V. U. S., 41 Ct. Cls., 324.) 
 
 In the case of Baker v. United States (125 
 U. S., 646), which held that the service of a 
 midshipman at the Naval Academy was service 
 as an "officer in the Navy," within the mean- 
 ing of the statute providing for longevity pay, 
 the Supreme Court in its opinion lays great 
 stress upon the fact that the claimant at the 
 time of his appointment to the Naval Academy 
 was named as a "midshipman" pursuant to 
 the law then in force, and that according to 
 law then in force midshipmen were ninth in 
 grade in the active list of the officers of the 
 Navy. (Weller i-. U. S., 41 Ct. Cls., 324.) 
 
 756 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1519. 
 
 The controlling statutes on the subject 
 relative to the MiUtary Academy are not 
 practically the same as those affecting the 
 Naval Academy, but are essentially analogous 
 and equivalent. As to both appointees it may, 
 therefore, be said that the laws relating to 
 coiu"ts-martial do not prevent dismissal for 
 deficiency in studies or for misconduct. (25 Op. 
 Atty. Gen., 579.) 
 
 Prior to the act of April 9, 1906, a right to 
 summarily dismiss midshijmien had been 
 asserted and even exercised by successive 
 Secretaries of the Navy, although it had 
 recently been disputed. Almost simultane- 
 ously, however, with this enactment, the 
 Court of Claims, in the case of Weller v. United 
 States, decided April 2, 1906, sustained this 
 right. It seems to the Navy Department 
 quite clear that Congress intended by this law 
 to limit the discretionary power of the Secre- 
 tary of the Navy to summarily dismiss mid- 
 shipmen, and to provide one uniform method 
 of procedm'e by which midshipmen should be 
 dismissed from the academy for misconduct. 
 (FUe 5146-1, July 13, 1906.; 
 
 The Secretary of the Navy, with the written 
 approval of the President, has the power to 
 dismiss midshipmen for due cause in any case 
 except that in which the cause consists in a 
 "single act of hazing." A midshipman who is 
 recommended for punishment for a "single 
 act of hazing" is thus in the unique position, 
 as compared with other offenses against Naval 
 Academy regulations, of being protected by 
 statute against dismissal except by sentence 
 of a court-martial. (File 5252-72, Sept. 20, 
 1915; C. M. O. 31-1915.) 
 
 The Secretary of the Navy, acting for the 
 President, has the power to cUsmiss a midship- 
 man for insubordination. This power, as sus- 
 tained by the Com't of Claims in the case of 
 Weller v. United States, was not taken from 
 him by the act of April 9, 1906 (34 Stat., 104), 
 I^roviding for the trial of midshipmen by comt- 
 martial for hazing. Furthermore, said act 
 relates only to midshipmen "at the Naval 
 AcademJ^" and in this case the midshipman 
 had completed his four years' course at the 
 academy and was undergoing the two years' 
 course at sea prior to final graduation. The 
 dismissal of the midshipman in this case being 
 legal, the records can not be changed so as 
 to show that his resignation was accepted. 
 (File 5252-60, Feb. 14, 1914.) 
 
 Section 1229 and article 36 of section 1624 of 
 the Revised Statutes did not deprive Congress 
 of power to make any provision for the removal 
 of an officer, even by the Executive who 
 appointed him. It is not within the power of 
 a legislature to deprive its successor of the 
 power of repealing an act creating a public 
 office. (Crenshaw v. U. S., 134 U. S., 99.) 
 
 See above, under "Deficiency in conduct." 
 
 Court-martial of midshipmen for haz- 
 ing, etc. — Cadets at Annapolis are not liable 
 to coui-t-martial except under the act of 1874, 
 for hazing. ^15 Op. Att} . Gen., 634, citing 1 
 Op. Atty. Gen., 276, holding that cadets at 
 West Point are subject to court-martial only 
 as expressly authorized by law.) 
 
 The commands of the law of 1874 (June 
 
 23, 18 Stat., 203), are imperative and require 
 that in all cases where it shall come to the 
 knowledge of the superintendent of the Na- 
 val Academy that any midshipman is guiltj' 
 of the offense commonly knowTi as hazing, 
 "it shall be the duty of said superintendent 
 to order a court-martial." Under these cir- 
 cumstances, the superintendent has not the 
 right to exercise a discretion as to whether he 
 shall order a court-martial for the trial of cer- 
 tain midshipmen in whose case it has come to 
 his knowledge, as the result of a preliminary 
 examination through a board of officers, that 
 they are guilty of the offense of hazing. It 
 therefore only remains for him to order a court- 
 martial for the purpose of trying them, and 
 should they be either convdcted or acquitted 
 by such court-martial the responsibility resting 
 upon the superintendent under the law will 
 have been fully discharged. A determination 
 of the question whether or not such couA-iction 
 or acquittal could be successfully pleaded in 
 bar of a criminal prosecution, instituted in the 
 ci\il courts for an assault or other crime in- 
 volved in the offense of hazing, could not in 
 any possil)le manner aid the superintendent in 
 the execution of the law. The superintendent 
 or the Secretary might, without the least im- 
 propriety, after such trials are had, bring all the 
 facts to the attention of the United States 
 attorney for the district of ]\Iaryland , in which 
 event the question of jurisdiction of the ci\Tl 
 authorities would become a question for the 
 consideration of the Department of Justice. 
 (25 Op. Atty. Gen., 543.) 
 
 The act of March 3, 1903 (32 Stat., 1198), 
 does not confer upon the superintendent of the 
 Naval Academy or the Secretary of the Na\'y, 
 or upon both conjointly, the power summarily 
 to dismiss from the Academy without trial by 
 court-martial a midshipman found guilty of the 
 offense of hazing. That act is to be read in 
 connection with the act of June 23, 1874 (18 
 Stat., 203), requiring the superintendent of 
 the Naval Academy to order a court-martial 
 in all cases of hazing which may come to his 
 attention, and there is nothing in the later act 
 showing a purpose upon the part of Congress 
 to disj^ense \\ith the formality of requiring a 
 court-martial for the trial of a midshipman upon 
 the charge of hazing. The phrase, "found 
 guilty," appearing in the act of 1903, when 
 read in connection with the act of 1874, refers 
 to the finding of a court-martial and not of the 
 superintendent or a board of officers other than 
 a court-martial. This opinion should not be 
 applied to cases other than hazing; it is un- 
 necessary to decide that a midshipman may 
 not, under certain circumstances, be sum- 
 marily dismissed from the Naval Academy 
 without first being tried by court-martial. 
 (25 Op. Atty. Gen., 543.) 
 
 The act of June 23, 1874 (18 Stat., 203), was 
 in terms mandatory that a "court-martial" 
 be ordered by the superintendent of the Naval 
 Academy in any case of hazing which came to 
 his knowledge; that the finding of such court, 
 when appi'oved by the superintendent, should 
 be final; and that the accused, if found guilty, 
 "shall, upon the recommendation of said 
 court, be dismissed." The act of March 3, 
 1903 (32 Stat., 1198), required the superin- 
 
 767 
 
Sec. 1519. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 tondent of the Naval Academy to "make such 
 rules, to be approved l)y the Secretary of the 
 Navy, as will effectually prevent the practice 
 of hazing;" and ])rovi(lo(i that any cadet " found 
 guilty " of participating in, or encouraging or 
 countenancing such practice, "shall l)e sum- 
 marily expelled from the academy and shall 
 not thereafter be appointed to the corps of 
 cablets or be eligible for appointment as a 
 commissioned ofhcer in the Army or Navy or 
 Marine Corps until two years after the gi-adua- 
 tion of the class of which he was a member." 
 The effect of these statutes was to deprive the 
 proper administrative officer of discretion in 
 dealing with the offense of hazing at the Naval 
 Academy; and to require that midshipmen 
 charged mth hazing be brought to trial by 
 court-martial, to be followed upon conviction 
 by summary dismissal. (File 26283-925, Sept. 
 4, 1915.) 
 
 By act of April 9, 1906 (34 Stat., 104), Con- 
 gress repealed 'so much of the acts approved 
 June twenty-third, eighteen hundred and 
 seventy-four and March third, nineteen hun- 
 dred and three, as requires the superintendent 
 of the United States Naval Academy to con- 
 vene a court-martial in all cases when it shall 
 come to the knowledge of the said superin- 
 tendent that any midshipman lias been guilty 
 of the offense commonly known as 'hazing,' 
 and declares the finding of a court-martial so 
 convened, when approved by the said super- 
 intendent, final, and directs that any midship- 
 man found gviilty by such court-martial shall 
 be summarily dismissed from the said Academy. ' ' 
 By said act of 1906 it was further provided that 
 "the offense known as 'hazing' may hereafter 
 be proceeded against, dealt with, and punished 
 aa offenses against good order and discipline and 
 for violation and breaches of the rules of said 
 Academy." Thus Congress has removed the 
 distinction previously made between hazing 
 and other offenses committed by midshipmen. 
 But one restriction is placed upon the discretion 
 of the administrative officers in dealing with 
 the offense of hazing, as distinguished from 
 other offenses committed by midshipmen, and 
 that is that "no midsliipman sliall be dismissed 
 for a single act of hazing except under the pro- 
 visions of section three of this act," viz, pursu- 
 ant to the sentence of a court-martial as pro- 
 vided by the act of June 23, 1874. (File 26283- 
 925, Sept 4, 1915.) 
 
 Trial by court-martial is not now required in 
 any case of hazing, it being left entirely to the 
 discretion of the superintendent whether such 
 trial shall be had. If the superintendent, in 
 the exercise of the discretion thus expressly 
 vested in him by the act of 1906, decides that 
 a midshipman should be tried by court-martial 
 for hazing, then the superintendent's decision 
 must be approved by the Secretary of the Navy 
 before the superintendent would be authorized 
 to proceed under the act of 1874 to order a 
 court-martial and cause the accused midship- 
 man to be brought to trial. If the Secretary 
 of the Navy approves tlie superintendent's de- 
 cision that a trial be had, tlien the court-martial 
 is not required, imder the act of 1906, to impose 
 a sentence of dismissal, but may sentence the 
 accused, if convicted, to any punishment au- 
 thorized by the act of June 23, 1874 or by the 
 
 act of Marcli 3, 1903, or l)y the rules of the 
 Naval Academy. (File 2(5283-925, Sept. 4, 
 1915.) 
 
 If the accused is charged with only 'a single 
 act of hazing," and the superintendent decides 
 not to bring nim to trial by com't-martial, or the 
 Secretary of the Navy does not approve the 
 superintendent's recommendation that sucli 
 trial be had, then the law of 1906 says explicitly 
 that he shall not be dismissed. He may, how- 
 ever, be punished by the superintendent in 
 accordance with the rules of the academy, 
 otherwise than by dismissal. (File 26283-925, 
 Sept. 4, 1915.) 
 
 If the accused is guilty of more than "a 
 single act of liazing, ' ' he may be dismissed with- 
 out trial by court-martial; but in that event he 
 must be proceeded against in accordance with 
 section one of the act of 1900, which details the 
 procedure to be followed in any case in which 
 the superintendent "shall believe the contin- 
 ued presence of any midshipman at the said 
 Academy to be contrary to the best interests of 
 the ser\dce;" that is, there must be a written 
 report by the superintendent, a reference of the 
 report to the accused by the Secretary of the 
 Navy, with opportunity for the accused to make 
 written reply thereto, and the written approval 
 of the President before the dismissal may be 
 executed. In addition, if any issue of fact is 
 raised by these proceedings, there must be a 
 "board of inquiry" convened by the Secretary 
 of the Navy to pass thereupon. (File 26283- 
 925, Sept. 4, 1915.) 
 
 The words, ' ' a single act of hazing, ' ' are to be 
 taken in their literal sense. If an accused was 
 guilty of but one "act" of hazing he can not be 
 dismissed without trial, notwitlistandmg that 
 several different persons may have been victims 
 of the "single act." Thus, one order obeyed 
 by several midshipmen would be only a ''single 
 act" of hazing, although it might legally be 
 more than one offense. On the other hand, if 
 one midshipman in hazing another gives several 
 orders which are obeyed, this would constitute 
 several "acts" although there was only one 
 victim and the several distinct transactions 
 occurred at the same place and very near each 
 other in one continuing attempt to defy the 
 law. (File 26283-925, Sept. 4, 1915.) 
 
 A midshipman who, while absent in a dis- 
 tant and foreign station, was nominated and 
 confirmed to be an ensign, "subject to exami- 
 nation," but who was never examined, never 
 became an ensign; and having in the meantime 
 been brought to trial by coui't-martial, was 
 properly tried as a midshipman. (16 Op. Atty. 
 Gen., 550.) 
 
 Cadets admitted to the NaA'al Academy on 
 10 May and 4 September, 1886, respectively, 
 became naval cadets in the full sense of the 
 term upon the dates named; they had, on those 
 dates respectively, been duly nominated to the 
 place, accepted the nomination, passed suc- 
 cessfully the examination required by law, 
 taken the oath prescribed for naval cadets, been 
 assigned to and entered upon the discharge of 
 the duty pertaining to the position and from 
 those dates their salaries commenced. Their 
 appointments, although not issued until the 11th 
 of October, 1886, relate back by express recitals 
 to these dates respectively, and are conclusive 
 
 758 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1519. 
 
 e^idence of the appointments at the date afore- 
 said. The appointments accordingly took ef- 
 fect on 10 May and 4 September, 1886, so as to 
 render them liable to trial bv court-martial. 
 (18 Op. Atty. Gen., 507.) 
 
 The minority of some of the members of a 
 court-martial which tried a midshipman and 
 sentenced him to dismissal from the Na^7• does 
 not invalidate the proceedings of the court- 
 martial, not^^ithstanding that at common law 
 minority might have been such an objection as 
 would invalidate the verdict of a jury or a judg- 
 ment thereon. \\Tiatever effect this fact 
 would have in a common law court, it has noth- 
 ing to do with the action of a court-martial 
 which exists by A-irtue of statute and regula- 
 tions conformable thereto. (16 Op. Atty. Gen., 
 550.) 
 
 To constitute the offense of hazing at the 
 Naval Academy, under the act of June 23, 1874, 
 chapter 453, it is essential that the Aictim should 
 be a new cadet of the fourth class. The act 
 does not define the offense against which the 
 penalty is denounced. This is not unusual. 
 Congress frequently affixes a penalty to a com- 
 mon law offense by name, \vithout defining it. 
 In such cases resort must be had to the com- 
 mon law to ascertain the ingredients of the of- 
 fense. In this case the statute is local to the 
 Naval Academy, and the offense named is un- 
 known, either to the common or statutory law 
 of the land. Naval cadets could not be guilty 
 of an '"offense" unless there was some rule or 
 regulation prescribed by competent authority 
 to be offended. Reference must therefore be 
 had to the rules and regulations in force at the 
 Naval Academy for a definition of the "offense 
 commonly known as hazing." An exhaustive 
 examination of the rules, regulations, and or- 
 ders on the subject shows that to constitute the 
 offense of hazing as understood at the time of 
 this enactment it was essential that the \ictim 
 of the maltreatment should be a new cadet of 
 the fourth class. Accordingly, held that, unless 
 the charge on which the cadet is arraigned al- 
 leges that the A-ictim of the maltreatment or 
 hazing was a new cadet of the fourth class, a 
 court-martial organized under the statute 
 would not have jurisdiction to try it. If the 
 charge makes the allegation and the proof fails 
 to maintain it, the court-martial should acquit 
 the accused. A charge alleging that the Aic- 
 tim of a cadet's maltreatment was a candidate 
 for admission would not come within the juris- 
 diction of a court-martial organized under this 
 statute, nor would proof that the xictim was a 
 candidate authorize con\'iction on a charge 
 properly drawn. (18 Op. Atty. Gen., 292.) 
 
 The act of 3 March, 1903 (32 Stat., 1198), pro- 
 \ide3 that the superintendent of the Naval 
 Academy shall make such rules "as will effect- 
 ually prevent the practice of hazing," and that 
 a "cadet found guilty of participating in or 
 encouraging or countenancing such practice 
 shall be expelled from the Academy. ' ' Hazing 
 has such a well-known meaning that it need not 
 be defined by rules under this statute; accord- 
 ingly, the dismissal of a midshipman pursuant 
 to a sentence of court-martial upon the r harge 
 of hazing was legal, the particular acts set forth 
 as constituting such offense being enumerated 
 
 in the specifications imder said charge. (Mel- 
 vin V. U. S., 45 Ct. Cls., 213.) 
 
 The regulations of the Naval Academy of 
 1876 described hazing as "molesting, annoy- 
 ing, ridiculing, maltreating, or assuming 
 unauthorized authority over the new cadets 
 of the fourth class" by the older cadets. A 
 charge preferred against a midshipman for 
 violation of the act of June 23, 1874, to prevent 
 hazing at the Naval Academy was within the 
 jm-isdiction of the court-martial convened 
 pursuant thereto, the specifications of the 
 charge setting forth that the offense was 
 committed upon "a cadet of the fourth class," 
 named therein, and consisted of "pulling the 
 nose" and "otherwise maltreating" and 
 "striking at" and "otherwise annojing" the 
 said cadet; it elsewhere appearing in the 
 record that the person charged with the offense 
 was then a cadet of the second class. Con- 
 ceding that the case was one of "personal 
 rencounter or fight" between the parties, and 
 that the facts in e\'idence make out a case of 
 that sort, this would go only to show that the 
 decision of the court was wrong in con\icting 
 the accused, not that it acted without jurisdic- 
 tion ; but it was the duty of the court to deter- 
 mine the truth or falsity of the charge upon the 
 testimony adduced, and its decision when 
 regularly approved by the proper authority 
 has the effect of a final judgment which can not 
 be collaterally brought into question. Whether 
 the decision was correct or erroneous could not 
 affect the validity of the court's finding when 
 regularly approved. (18 Op. Atty. Gen., 
 
 376.) 
 
 A member of the fourth class at the Naval 
 Academy who failed to pass his examinations 
 and who was reappointed to the same class 
 the following year was, during said year, as 
 much an "older cadet" within the definition 
 of the offense of "hazing" as a cadet who 
 originally entered at the same time and had 
 been advanced to a higher class. All who are 
 not "new cadets of the fourth class" and there- 
 fore liable to be victims of "hazing," should 
 be held to be "old cadets" and capable of 
 being the perpetrators of the offense. The 
 length of service at the Academy which takes 
 a cadet out of the one category and into the 
 other can not be determined by any general 
 rule but must be governed by the local cus- 
 toms and traditions and the popular meaning 
 of the terms. (18 Op. Atty. Gen., 507.) 
 
 President's approval of sentence of 
 dismissal or suspension. — The act of 23 
 June 1874 (18 Stat., 203 ), pro\-iding for the court- 
 martial of cadet-midshipmen at the Naval 
 Academy is not repealed by the act of 2 March 
 1895 (28 Stat., 838), which provides that 
 sentences of suspension and dismissal approved 
 by the superintendent "'shall not be carried 
 into effect until confirmed by the President." 
 Accordingly, held that the dismissal of a mid- 
 shipman upon sentence of a court-martial 
 convened under the act of 1874, approved by 
 the superintendent, was legal. (Melvin v. 
 U. S., 45 Ct. Cls., 213.) . . 
 
 As a midshipman is neither a commissioned 
 nor a warrant officer, a sentence of dismissal 
 imposed bv court-martial convened by the 
 commander-in-chief of the Atlantic Fleet need 
 
 759 
 
Sec. 1519. 
 
 Pt. 2. RE VISED STAT UTES. 
 
 The Navy. 
 
 not Ix' suhinittcd to tho President for con- 
 lirmation, hut may l>e carried into execution 
 upon conlirmation of the olticer ordering; the 
 court, as provideil by article 53, Articles for 
 the Government of the Navy (sec. 1624, R. S.); 
 neither the President nor tne Secretary of the 
 .Navy has lawful authority to approve or dis- 
 a])prove the sentence in such a case (citing II 
 Op. Atty. Gen., 251). (File 26262-198, Nov. 
 13, 1<)08.') 
 
 As a midshipman is neither a commissioned 
 nor warrant officer, it seems that he may be 
 dismissed pursuant to a sentence of a court- 
 martial without the express approval thereof 
 by the President, unless there be some explicit 
 statutory provision requiring such executive 
 ai)proval. (16 Op. J. A. G., 70, Nov. 2, 1911.) 
 
 In the case of a midshipman tried by general 
 court-martial by order of the commander-in- 
 chief of the Atlantic Fleet and sentenced to 
 dismissal, the commander-in-chief ha\'ing 
 approved the proceedings, finding, and sen- 
 tence, and stated that, "in conformity -with 
 article 53 of the Articles for the Government 
 of the Navy (section 1624 of the Re\'ised 
 Statutes), the record is respectfully referred to 
 the Secretary of the Navy for transmittal to 
 the President," the action of the convening 
 authority was approved by the Secretary of the 
 Navy, October 6, 1909, with the statement 
 that'reference to the President is "unnecessary 
 in the case of midshipmen. "(G. C. M. Order 
 No. 36, Oct. 13, 1909.) 
 
 It is to be noted that the act of March 2, 1895 
 (28 Stat., 838), which authorized the trial of 
 midshipmen by "general courts-martial" (con- 
 vened by the Secretary of the Navy) for any 
 offense, provided that sentences of suspension 
 and dismissal must be confirmed by the 
 President before being executed. It may be 
 contended that approval of the President is 
 necessary before such sentences may be exe- 
 cuted in hazing cases, where the court-martial 
 is convened by the superintendent under the 
 act of 1874. It would be advisable to have 
 such sentences so confirmed, thus avoiding 
 any question on this ground, although this is 
 not believed to be necessary. (File 26283-925, 
 Sept. 4, 1915; C. M. O. 31-1915.) 
 
 The notice to a midshipman by the Secretary 
 of the Navy that the President had approved 
 the sentence of a court-martial in 1868 dis- 
 mi.s,siiig him from the Navy is evidence both 
 of approval and promulgation. The President 
 acts through the Secretaries of War and of the 
 Navy in such matters; a promulgation is not 
 necessarily a publication in a newspaper. 
 (16 Op. Atty. Gen., 550.) 
 
 In the case of a midshipman tried by general 
 court-martial by order of the commander in 
 chief of the North Atlantic Fleet and sen- 
 ten( ed to be dismissed from the United States 
 naval service, the proceedings, findings, and 
 sentence were approved by the convening 
 authority and the record was submitted by 
 the department to- the President "in con- 
 formity \vith article 53 of the Articles for the 
 Government of the Navy (sec. 1624, R. S.), 
 with the recommendation that the sentence 
 be confirmed, but that, in \dew of the fact that 
 the court unanimously recommended clemency 
 it be commuted to the punishment set forth 
 
 below," viz, that he "be turned back into and 
 become a member of the next lower class of 
 mid.shipmen, the present first class at the 
 United States Naval Academy; to continue in 
 the meantime on probationary sea duty; to take 
 temporary rank at the head of the class to which 
 he is reduced; and, finally, to take rank as a 
 member of that cla.ss upon its graduation at 
 the end of the prescribed six years' course, in 
 accordance with the requii-ements for deter- 
 mining the same as applied to members of that 
 class"; which action was accordingly taken by 
 the President as recommended. (G. C. M. 
 Order No. 77, Sept. 1, 1905. Note: On March 
 1, 1909, the sentence of dismissal imposed by a 
 general court-martial convened by the com- 
 mander in chief of the Pacific Fleet for the 
 trial of a midshipman was mitigated by the 
 Secretary of the Navy in the same manner as 
 set forth above, without submission to the 
 President; see G. C. M. Order No. 10, Mar. 1, 
 1909. In another case, on the same date, the 
 Secretary of the Navy, without reference to 
 the President, mitigated a sentence of dis- 
 missal imposed by a general court-martial 
 convened by the commander in chief of the 
 Pacific Fleet, so that the accused midshipman, 
 if commissioned at the completion of his final 
 examination, "will be commissioned as next 
 to the lowest number in his class" ; see G. C. M. 
 Order No. 9, Mar. 1, 1909.) 
 
 When sentence of dismissal is execu- 
 ted. — Where the commander in chief who con- 
 vened a court-martial approved a sentence of 
 dismissal imposed by said court upon a mid- 
 shipman, but concluded with the statement 
 that "the record is respectfully referred to the 
 Secretary of the Navy," held that this action 
 did not show an intention on the part of the 
 convening authority to execute the sentence at 
 the time, but implied that the record was for- 
 warded to the Secretary of the Navy in order 
 that the midshipman might be dismissed and 
 the sentence executed by the department; 
 accordingly, mere publication by the com- 
 mander in chief of his action did not operate to 
 dismiss the midshipman from the service, but 
 the sentence remained unexecuted and sub- 
 ject to mitigation by the President in the ex- 
 ercise of his pardoning power. (File 26262-198, 
 Nov. 13, 1908. Note: In this case the Pres- 
 ident issued a formal pardon to the midship- 
 man in question, on condition that he take 
 rank at the foot of his class and if commissioned 
 be commissioned as the lowest number therein.) 
 
 Arrest of midshipman pending investi- 
 gation and action. — A midshipman may 
 properly be placed under arrest pending action 
 on a recommendation by the superintendent 
 of the Naval Academy for his dismissal. The 
 fact that a court of inquiry may be ordered to 
 investigate the allegations against him does not 
 of itself require his being released from arrest. 
 (C. M. O. 22—1915, citing file 28028-203:1, June 
 8, 1915.) 
 
 Minor punishments imposed without 
 court-martial. — The act of March 2, 1895 
 (28 Stat., 838), did not deprive the proper 
 administrative officers of the power to impose 
 punishment other than dismissal for \aolation 
 of Naval Academy regulations, where the officers 
 of the academy consider that the best inter- 
 
 760 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1519. 
 
 ests of the institution will be promoted by the 
 imposition of minor punishments by them- 
 selves, without the intervention of a court- 
 martial or without resorting to the power of 
 dismissal. (File 26283-925, Sept. 4, 1915.) 
 
 Effect of dismissal. — There is no law pro- 
 hibiting the appointment of a former midship- 
 man as an officer of the Navy because of his 
 dismissal from the Na^'al Academy on Septem- 
 ber 30, 1915, such dismissal not ha\ang been for 
 hazing nor pursuant to sentence of a court- 
 martial, but in accordance with section 1 of 
 the act approved April 9, 1906 (34 Stat., 104\ 
 upon investigation of charges consisting prin- 
 cipally of false swearing. Accordingly, the 
 question whether such appointment should be 
 made is one of policy and not of law. (FUe 
 26283-925:4, Aug. 7, 1916.) 
 
 The only offense, if any, which creates a 
 statutory disqualification for reappointment of 
 a midshipman is that of hazing. The spirit of 
 the laws is, however, against the reappointment 
 of any person who has been dismissed from the 
 Navy, as will be seen by reference to section 
 1441, Revised Statutes. (File 5252-43, Oct. 5, 
 1911.) 
 
 The act of June 23, 1874 (18 Stat., 203), pro- 
 vided for the trial by court-martial and dis- 
 missal of any midshipman guilty of hazing, and 
 concluded, "and the cadet so dismissed from 
 said Naval Academy shall be forever ineligible 
 to reappointment to said Naval Academy." 
 The act of March 3, 1903 (32 Stat., 1198), pro- 
 vided that any midshipman found guilty of 
 participating in or encouraging the practice of 
 hazing should be summarily expelled from the 
 Academy and should not thereafter be re- 
 appointed to the Academy or be eligible for 
 appointment as a commissioned officer in the 
 Army, Na\y, or Marine Corps "until two years 
 after the graduation of the class of which he 
 was a member." The act of April 9, 1906 (34 
 Stat., 104), pro'vides that no midshipman shall 
 be dismissed for a single act of hazing except 
 after trial and conviction by court-martial and 
 expressly repeals portions of the two laws above 
 cited, but says nothing about ineligibility for 
 reappointment of midshipmen dismissed for 
 hazing, which appears, therefore, to continue 
 in effect. (File 5252-43, Oct. 5, 1911.) 
 
 The act of August 29, 1916 (39 Stat., 589), 
 provides that "all former officers of the United 
 States naval service, including midshipmen, 
 who have left that ser\dce under honorable con- 
 ditions * * * and who shall have enrolled 
 in the Naval Reserve Force, shall be eligible 
 for membership in the Fleet Naval Reserve." 
 Held, that a midshipman who was dismissed by 
 sentence of court-martial is not eligible for 
 membership in the Fleet Naval Reserve, al- 
 though he has been pardoned for the offense for 
 which dismissed. (File 26282-287:4, Mar. 16, 
 1918; C. M. O. 30-1918; 31 Op. Atty. Gen., 225.) 
 
 A midshipman having been legally dis- 
 missed, the records can not be changed to show 
 that his resignatioti was accepted. (File 5252- 
 60, Feb. 14, 1914.) 
 
 The act of June 23, 1874 (chapter 453), to 
 prevent hazing at the Naval Academy and pro- 
 viding that a cadet-midshipman dismissed pur- 
 suant thereto "shall be forever ineligible to 
 
 reappointment to said Naval Academy" was 
 designed to cut off all chance of reinstatement 
 or reappointment fi-om such cadet; accordingly, 
 without considering very carefully what the 
 effect of a pardon by the President might be, 
 or whether after an unconditional pardon a re- 
 appointment is strictly legal or not, held that 
 the President would not be justified in al)ro- 
 gating the clear intent and plain meaning of 
 the statute, and the Attorney General wishes 
 strongly to advise against any such cotirse as 
 will tend, by indirection, to nullify the statute; 
 the parties who consider themselves aggrieved 
 should apply to Congress for a change of the 
 law; while the statute remains in force the 
 President should not interfere to relieve the 
 party found guilty. (15 Op. Atty. Gen., 80. 
 See 31 Op. Atty. Gen., 225, noted under sec. 
 1441, R. S.) _ 
 
 The question whether a dismissed midship- 
 man is eligible to vote depends upon the law s 
 of the State in which he claims the right, and is 
 not one under the jurisdiction of the Navy 
 Department. The question whether a dis- 
 missed midshipman is elieible to hold a State 
 office is similarly not under the cognizance of 
 the Navy Department. With reference to his 
 eligibility to hold a Federal position, under tne 
 civil 8er\ace rules and regulations any person 
 who has been dismissed from the military or 
 naval service is, it is understood, barred from 
 examination for the United States civil service 
 within one year from the date of such dismissal. 
 Likewise it is pro\'ided by the Federal statutes 
 that any officer who has been dismissed from 
 the Navy by sentence of court-martial shall 
 never again become an officer of the Navy. 
 Also, with specific reference to midshipmen it 
 is provided by law that any midshipman sum- 
 marily expelled from the Academy for hazing 
 shall not thereafter be reappointed or be eli- 
 gible for appointment as a commissioned officer 
 in the Army, Navy, or Marine Corps until two 
 years after the graduation of the class of which 
 he was a member. (File 5252-79, June 19, 
 1916.) 
 
 Reinstatement of midshipmen. — A mid- 
 shipman who has been dismissed for misconduct 
 by order of the President pursuant to law can 
 not be legally reinstated in his former position 
 by revocation of the order of dismissal. The 
 only way in which such a former midshipman 
 can legally obtain readmission to the Naval 
 Academy would be by new appomtment in tne 
 manner pro\dded for any other candidate. 
 The President's action can not, upon the sub- 
 mission of additional evidence, be reconsidered 
 and revoked, and the midshipman thereby 
 reinstated in his former position. (File 5252- 
 72, Sept. 27, 1915; affirmed, 5252-73, Oct. 1, 
 1915; sustained by Attorney General, Oct. 15, 
 1915, 30 Op. Atty. Gen., 457. 
 
 The President is not authorized to reopen 
 the case of a midshipman who has been dis- 
 missed from the Naval Academy with a view 
 to revoking the order of dismissal and rein- 
 stating him. (30 Op. Atty. Gen., 457, follow- 
 ing 25 Op. Atty. Gen., 579.) 
 
 A midshipman who has satisfactorily com- 
 pleted the course for the iirst year at the Naval 
 Academy but who in the following year is found 
 deficient and allowed to resign need not be re- 
 
 761 
 
Sec. 1520. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 quired, when j^'iven a new appointment, to ^o 
 o\ er the course for the first year a second time, 
 J)ut may lepially recommence the course for the 
 second year, provided that such action is rec- 
 
 ommended by the Academic Board. (('. M. 
 O. 12—1915, citing fde 52.52-65, Mar. 12, 1915.) 
 For other cases poe notes to sections 1514, 
 1515, and 1517, Revised Statutes. 
 
 Sec. 1520. [Academic course.] The academic course of cadet midshipmen 
 shall be six years.— (3 Mar., 1873, c. 230, s. 1, v. 17, p. 555.) 
 
 Amendments to this section were made by the 
 laws noted under section 1512, Revised 
 Statutes, which changed the title of 
 students at the Naval Academy to "mid- 
 shipmen;" and by act of March 7, 1912 
 (37 Stat., 73), which provided "that the 
 course at the Naval Academy shall be 
 four vears." 
 By act of March 4, 1917 (39 Stat., 1182 1, it was 
 provided that "the President, in his 
 discretion, is authorized to reduce the 
 course of instruction at the Naval Academy 
 from four to three years for a period of 
 two years from the date of the approval of 
 this act, and may during said two years 
 graduate classes which have completed a 
 three-year course." 
 By act of April 2, 1918 (40 Stat., 501), it was 
 pro\dded "that the President be, and he 
 is hereby, authorized, until August first, 
 nineteen hundred and twenty-one, to 
 reduce, in his discretion, the course of 
 instruction at the United States Naval 
 Academy fi'om four to three years and to 
 graduate classes which have completed 
 such reduced courses of instruction." 
 By act of August 5, 1882 (22 Stat., 285), it was 
 provided "that the Secretary of the Navy 
 may prescribe a special course of study 
 and training at home or abroad for any 
 naval cadet;" as to change of title from 
 "naval cadet" to "midshipman" see note 
 to Section 1512, Re^^sed Statutes. 
 By act of March 4, 1913 (37 Stat., 891), it was 
 pro\dded that "hereafter the service of a 
 midshipman at the United States Naval 
 Academy, or that of a cadet at the United 
 States Military Academy, who may here- 
 after be appointed to the United States 
 Naval Academy, or to the United States 
 Military Academy, shall not be counted 
 in computing for any purpose the length 
 of service of any officer in the Navy or in 
 the Marine Corps." 
 By act of May 20, 1886 (24 Stat., 69), provision 
 was made for instruction at the Naval 
 Academy as to the effect of alcoholic 
 drinks and narcotics, and for the removal 
 of anv officer, superintendent or teacher 
 who sKall refuse or neglect to comply with 
 this pro\'ision. 
 Sea service as part of six-year course. — 
 As shown by the regulations' governing the 
 Naval Academy, sea service for several years, 
 and "other than in practice ships," has uni- 
 formly been a part of the academic course 
 at the Naval Academy since its establishment 
 until now. Naval education before the estab- 
 lishment of the academy was, of course, 
 obtained in great measure whilst the student 
 (midshipman) was undergoing sea 8er\T.ce. 
 The earliest appointees to the academy 
 (excluding the midshipmen who were at first 
 
 collected from service and sent thither), 
 which appointees were designated acting mid- 
 shipmen, after a partial course on shore were 
 sent to sea for several years, and then returned 
 to Annapolis and finished their studies there. 
 These appointees at the close of the earlier 
 course on shore received a certificate which 
 testified to their fitness to go to sea; and before 
 the end of their sea service they became mid- 
 shipmen, continuing, however, to be students 
 of the academy. Subsequently (1851) the 
 two previous courses on shore pursued by 
 appointees to the academy, one before and 
 the other after sea serAdce, were consolidated 
 into a single term of four years preliminary to 
 sea service. This system has continued in 
 existence ever since; the act of July 16, 1862 
 (ch. 183), in the meantime requiring students 
 to be styled midshipmen throughout the whole 
 course, and this style having been again 
 changed to that of cadet-midshipmen by the 
 act of 1870. (15 Op. Atty. Gen., 637; see 
 sec. 1512, R. S., and note thereto.) 
 
 The regulation issued by the Secretary of 
 the Navy requiring the students or midship- 
 men at the Naval Academy, after the comple- 
 tion of their purely academic studies, to per- 
 form a term of duty on shipboard in order to 
 acquaint themselves with practical navigation 
 and seamanship, is a perfectly valid regulation; 
 and the act of Jidy 11, 1862, section 11 (12 
 Stat., 585), providing that students at the 
 Naval Academy shall be commissioned en- 
 signs if successful upon their final graduating 
 examination, should be construed as giving 
 distinct legislative sanction to the regulation 
 of the department, then in force, by which 
 that examination was reqiured to be taken 
 after completion of this period of instruction 
 on shipboard. It must be assumed that Con- 
 gress, when it made the law of 1862, had in 
 mind the regidations which had been pre- 
 scribed and enforced under its own authority, 
 and which, so long as they were in operation 
 and remained unchanged by competent au- 
 thority, had, as Congress well knew, the effi- 
 ciency of a statute. (11 Op. Atty. Gen., 1.58.) 
 
 The last two years of the academic course of 
 cadet-midshipmen were spent at sea in other 
 than practice ships. After four years at the 
 academy they were temporarily detached from 
 that institution, by orders of the Navy Depart- 
 ment, and were sent to sea singly or in squads. 
 On shipboard they performed such active 
 duties as were assigned to them. At the end 
 of the two years they were required to return 
 and did return to the Naval Academy, where 
 thev were subjected to a "final graduating ex- 
 amination" before the Academic Board. If 
 successfid at siich examination they received 
 appointments as midshipmen, and were there- 
 after classified in the Navy Register as having 
 "graduated " at that date- and they were never 
 
 762 
 
The Navy. 
 
 Ft. 2. RE VISED STAT UTES. 
 
 Sec. 1520. 
 
 so designated, -either in the Navy Register or 
 elsewhere, until after they had passed snch 
 examination at the end of the six years' course. 
 (U. S. V. Redgrave, IIU U. S., 474, 475.) 
 
 The words "final graduating examination" 
 in section 11 of the act of July 16, 1862, chapter 
 183, and "graduating examination" in section 
 12 of the act of July 15, 1870, chapter 295, 
 signify that examination which under the reg- 
 ulations of the Naval Academy takes place 
 after the prescribed term of sea service has been 
 performed. (15 Op. Atty. Gen., 637; recon- 
 sidered and affirmed, 16 Op. Atty. Gen., 296.) 
 
 The "final graduating examination" re- 
 ferred to by the act of July 16, 1862 (12 Stat., 
 583), wliich provided that midshipmen pass- 
 ing such examination shall be commissioned 
 ensigns, was not the final academic examina- 
 tion of the Naval Academy, but the last ex- 
 amination referred to in the regulations exist- 
 ing at the time when the act was passed, and 
 which required a final examination after cer- 
 tain sea service. (Benjamin v. U. S., 10 Ct. 
 Cls., 474.) 
 
 The statute in express terms provides that 
 "the academic course of cadet-midshipmen 
 shall be six years." If the Navy Department 
 had assumed to make any regulations by which 
 the final graduation should take place in less 
 time, such regulations woiUd have been void. 
 But it did not so assume. It arranged for a 
 two-year coTirse afloat as a part of the academic 
 course, and exacted a preliminary examina- 
 tion to test the cadet's qualifications therefor. 
 But the cadet afloat was a member of the 
 academy. He still was subject to a final ex- 
 • amination at that institution, and without such 
 examination sTiccessfully sustained never be- 
 came a graduate. He was not so denominated 
 until then, either in the Navy Register or else- 
 where; and it was not until that final test had 
 been sustained that, either by the practice of 
 the academy or by the provision of the statute, 
 he did or could receive his certificate of grad- 
 uation. There is a very plain distinction be- 
 tween his case and that of a cadet-engineer, 
 fully explained in United States v. Redgrave 
 (116 U. S., 474, noted below). (Crenshaw v. 
 U. S., 134 U. S., 99.) 
 
 The regulations prescribing the qualifica- 
 tions for appointment of cadet-engineers fixed 
 a higher average age by two years for cadet- 
 engineers entering the academy than was 
 required by law for cadet-midshipmen so en- 
 tering. After completing the four-year course, 
 cadet-engineers were permanently detached 
 from the academy, and were never required 
 to return to that institution. They remained 
 in active service at sea, or upon other duty, two 
 or three years or longer, until vacancies oc- 
 curred in the grade of assistant engineer, when 
 they were ordered, singly or in groups, for ex- 
 amination for promotion, under the provisions 
 of section 1392 of the Revised Statutes, before 
 a board of engineer officers which held its 
 sessions at Philadelphia. (U. S. v. Redgrave, 
 116 U. S., 474, 475.) 
 
 The certificate given to the midshipman at 
 the end of four years spent in the academy dif- 
 fered in its terms from the certificate issued to 
 the cadet-engineer in the words "preparatory 
 
 to the two years' course afloat." Cadet-engi- 
 neers were not undergraduates when they were 
 performing the service incident to the two years 
 following their study at the academy, but were 
 then in the discharge of the duties incident to 
 a period between graduation and promotion. 
 The cadet-midshipman at the end of the two 
 years' course afloat was required to return to the 
 academy, subjecting himself again to some 
 extent to the jurisdiction of the institution in 
 order that an academic board might determine 
 whether his acquirement afloat was sufficient, 
 in connection with his scholarship at the insti- 
 tution, to justify his certificate of graduation. 
 His education was theoretical and practical; 
 the one he acquired in the immediate institu- 
 tion, the other on the high seas; but each ac- 
 quii'ement came within the course of study 
 covered by a period of six years. According 
 to the decision of the Supreme Court the term 
 of service of a cadet-engineer was but four 
 years. (Harmon i;. U. S., 23 Ct. Cls., 132.) 
 
 Sea service eliminated by reduction of 
 course to four years.^ — Prior to the act of 
 March 7, 1912 (37 Stat., 73), the course at the 
 Naval Academy was six years (sec. 1520, R. S.), 
 the first four of which were spent in pursuing 
 the academic studies at the academy, and the 
 remaining two years at sea, upon the successfid 
 termination of wMch, as determined by a final 
 examination, the midshipmen were commis- 
 sioned ensigns. The four years at the academy 
 constituted an undergraduate course, and the 
 two years' service at sea was in the nature of a 
 postgraduate course. The act of May 13, 1908 
 (35 Stat., 128), made two pay grades for mid- 
 shipmen by providing that those at the acad- 
 emy, that is, those in the undergraduate course, 
 should receive pay at the rate of $600 per an- 
 num, and that after graduation from the acad- 
 emy, that is, after completing the four years' 
 undergraduate course and while performing the 
 two years' service at sea^the postgraduate 
 course^they should receive pay at the rate of 
 $1,400 per annum. The effect of the act of 
 March 7, 1912, was to eliminate the two years' 
 service at sea — the postgraduate course — and 
 also the pay grade pro^dded for those thus previ- 
 ously serving. It follows, therefore, that the 
 only grade of midshipmen now authorized by 
 law is that for those pursuing the four years' 
 course at the academy. (20 Comp. Dec, 141. 
 Note: The act of May 13, 1908, 35 Stat., 128, 
 contained the following provision, which is that 
 referred to in this decision: "The pay of mid- 
 shipmen shall hereafter be six hundred dollars 
 per annum while at the Naval Academy, and 
 one thousand four hundred dollars per annum 
 after graduation from the Naval Academy.") 
 
 The effect of the act of March 7, 1912 (37 
 Stat., 73), was to eliminate the two years at sea 
 and also the pay grade provided for those 
 previously serving at sea. It follows, there- 
 fore, that the only pay for midshipmen now 
 authorized by law is that for those pursuing 
 the four years' course at the Naval Academy, 
 viz, $600 per annum, and this is the base pay 
 of midshipmen within the meaning of the act 
 of August 29, 1916 (39 Stat., 587), establishing 
 the Naval Reserve Force and pro\dding that 
 "the annual retainer pay of officers of the Fleet 
 Naval Reserve shall be two months' base pay 
 
 •54641°— 22- 
 
 -49 
 
 763 
 
Sec. 1620. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 of the corresponding rank in the Navy." (23 
 Comp. Dec., 279.) 
 
 For laws governing pay of midshipmen, see 
 note to Section ]55(), Revised Statutes. 
 
 Sea service may be made part of four- 
 year course. — Lender existing laws the curric- 
 uhim at the Naval Academy may be so changed 
 by the Secretary of the Navy as to permit of the 
 following: "To send one undergraduate class 
 of midshipmen to sea for one year and have 
 them pursue a course on board sHip — at the end 
 of the year return them to the Naval Academy 
 for examination in the studies pursued; the 
 Academic Board to lay out a course to be pur- 
 sued and the subjects in which to be examined. 
 The course to be entirely practical in its nature 
 and include na\agation, ordnance and gun- 
 nery, seamanship, and engineering." (File 
 5252-76, Apr. 1, 1916.) 
 
 The course of instruction for midshipmen, 
 whether pursued at the Naval Academy or else- 
 where, is a matter of regulation in the discre- 
 tion of the Secretary of the Navy; there is noth- 
 ing contained in the laws relating to midship- 
 men which would preclude the Secretary of the 
 NaAy from sending one class of midshipmen to 
 eea for a year. (File 5252-76:1. May 1, 1916; 
 affirmed, file 5252-76:2, May 3, 1916.) 
 
 Former midshipmen not required to 
 repeat coirrse on reappointment. — A mid- 
 shipman who has satisfactorily completed the 
 course for the first year at the Naval Academy 
 but who, in the following year, is found defi- 
 cient and allowed to resign, need not be re- 
 quired, when given a new appointment, to go 
 over the course for the first year a second time, 
 but may legally recommence the course for the 
 second year proAdded that such action is rec- 
 ommended by the Academic Board. (C. M. O. 
 12—1915, citing file 5252-65, Mar. 12, 1915.) _ 
 
 Leave of absence during course. — A mid- 
 shipman granted a temporary leave of absence 
 while attached to and serving on a vessel at sea 
 in other than practice ships was not thereby 
 detached from duty at sea on board said vessel 
 and continued entitled to the higher rate of pay 
 
 EroA-ided by law for such duty. (14 Comp. 
 'ec, 208.) 
 
 Midshipmen are not merely students being 
 educated at the expense of the Government, but 
 are officers in the naval ser^dce and as such their 
 salary, fixed by law, can no more be increased 
 or diminished than can the salary of any other 
 officer in the naval service which is fixed by 
 law. Accordingly, where granted leave of ab- 
 sence by the Secretary of the Navy for sickness 
 or other cause, they are still entitled to pay 
 during the period of such leave at the same rate 
 they were receiving at the academy. (8 Comp. 
 Dec, 410.) 
 
 For other cases see note to section 1519, Re- 
 vised Statutes, under "Suspension of mid- 
 shipman without pay." 
 
 Whether service of midshipmen during 
 course at academy is ' " service "' in Navy. — 
 The question involved is whether plaintiff, 
 while he was a midsliipman, was serving as an 
 officer or enlisted man m the Navy, within the 
 meaning of the act of March 3, 1883 (22 Stat., 
 473), pro\iding for crediting officers with the 
 actual time that they may have "ser\-ed" as 
 officers or enlisted men in the Regular or Volun- 
 
 teer Army or Navy, or both. The Government 
 contended that it was immaterial whether as a 
 student he is or is not to be regarded as an 
 officer of the Navy, because he did not, whilst 
 a student at the Naval Academy, ' ' serve " either 
 as an officer or an enlisted man in the sense of 
 the act of 1883. It was denied l)y the United 
 States that the entry of a pupil into the acad- 
 emy is his entry into the naval service, or that 
 the period of his pupilage is actual service with- 
 in the meaning of the act of 1883; and it was 
 argued that he does not enter into actual service 
 until he is appointed either in the line of the 
 Navy, the Marine Corps, or the Engineer 
 Corps; that as a student he does not serve but 
 is jMoparing to serve; that he does not render 
 ser\ice to the Government but is receiAing 
 favors from it; that he can only commence 
 serving after his graduation, such service de- 
 pending upon his graduating merit; and that 
 compensation is given him not as a payment 
 for service rendered but as a gratuity and an 
 allowance made to him for his support in his 
 preparation for ser\ice to be rendered: Held, 
 that claimant is entitled to be credited, under 
 the act of March 3, 1883, with the time he so 
 served as a midshipman, on the ground that 
 ser\ice as a midshipman at the Naval Academy 
 was service as an officer in the Navy. (U. S. 
 V. Baker, 125 U. S., 646. Note: In this case 
 the claimant was appointed a midshipman on 
 Sept. 30, 1867, and continued to serve as such 
 after the act of July 15, 1870, sec. 12, 16 Stat., 
 334, which changed the designation of students 
 to "cadet-midshipmen." The decision in this 
 case was followed in U. S. v. Cook, 128 U. S., 
 254, in the case of a cadet-midshipman appoint- 
 ed after the act of July 15, 1870. See Morton' 
 V. V. S., 112 U. S., 1, holding that the time of 
 service of a military cadet at \X"est Point is to be 
 regarded as "actual service in the Army," 
 under a statute pro\iding longeAity pay. See 
 also note to sec. 1512, R. S.) 
 
 It is true that a student is at the Naval Acad- 
 emy only for education, but the education is at 
 the request and for the benefit of the Govern- 
 ment rather than of himself. A raw recruit is 
 not sent to the front until he has had a course of 
 instruction, discipline, and drill in camp. 
 That the time thus spent would constitute serv- 
 ice in the Army no one would doubt. Edu- 
 cation at the academy, though of a higher 
 order, is required and justified by the same 
 principle. (Baker v. U. S., 23 Ct. Cls., 181; 
 affirmed, 125 U. S., 646.) 
 
 In the computation of their longevity pay, 
 officers of the Naval Reserve Force are entitled 
 to credit for previous ser\ice in the Navy as 
 cadet-engineers. (24 Comp. Dec, 629.) 
 
 In the case of Mo^er v. United States (42 
 Ct. Cls., 86), it was decided that a student at 
 the Naval Academy under instruction during 
 the Civil War ' 'served " during the Ci-vil War 
 within the meaning of the act of March 3, 1899, 
 section 11 (30 Stat., 1007), relating to the rank 
 and pay of retired officers who served during 
 the Civil War. This decision followed the 
 doctrine laid down in Baker v. United States 
 (125 U. S., 646). In the case of Jasper v. 
 United States (43 Ct. Cls., 368), it was decided 
 that, under identical conditions, the claimant 
 did not "serve" during the Civil War while 
 
 764 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1521. 
 
 a student at the Naval Academy, and that the 
 decision in the Moser case had been erroneously 
 made, in ignorance of the act of June 29, 1906 
 (34 Stat., 554), which limited the benefits of 
 Ci^dl War service to any officer who served 
 during the Civil War ' 'othei-wise than as a 
 cadet." Held, that no appeal having been 
 taken from the decision in the Moser case that 
 decision, notwithstanding that it may have 
 been in error, is final and binding upon the 
 Government and entitles the claimant, so long 
 as he may be on the retired list of the Navy, to 
 the pay benefits provided by law for retired 
 officers who "served" during the Civil War; 
 that the law of a case may sometimes be 
 settled wrong, but when it is once settled it is 
 none the less final; that the court could not 
 have been right in both theM Dser and the Jasper 
 cases, but that its conflicting decisions ' 'made 
 the law" in each of the two cases; and accord- 
 ingly that Moser is entitled to increased pay 
 on the retired list in accordance with the 
 former decision in his case for periods subse- 
 quent to that covered in the former suit and for 
 which the accounting officers of the Treasury 
 had refused to allow such increased pay. 
 (Moser v. U. S., 49 Ct. Cls., 285.) 
 
 The decision of the Court of Claims that a 
 retired officer who was a student at the Naval 
 Academy during the Q\\\\ W^ar is entitled to 
 the increased pay pro\-ided for retired officers 
 who "served" duiing the Civil War by the 
 act of March 3, 1899 (30 Stat., lOO?), does not 
 estop the Secretary of the Navy from denying 
 such officer the increased rank on the retired 
 list pro^dded by the same law; the Navy 
 Department being of opinion that time spent 
 by students at the Naval Academy under 
 instruction was not service in the Navy within 
 the meaning of the law. (28 Op. Atty. Gen., 
 352.) The Secretary of the Na^-y can not be 
 compelled by mandamus proceedings to place 
 the name of the officer in question upon the 
 retired list with the rank of rear admiral. 
 (U. S. ex rel. Moser v. Meyer, 38 App. D. C, 
 
 A cadet ser%dng in the Coast Guard Academy 
 when the Coast Guard is operating as a part of 
 the Navy in time of war is a person ' 'serving 
 in the naval forces of the United States" 
 within the meaning of the act of February 24, 
 1919 (40 Stat., 1151, sec. 1406), prodding for 
 payment of $60 on resignation or discharge. 
 (26 Comp. Dec, 419. Compare, 26 Comp. 
 Dec., 236, holding that ' 'a cadet of the United 
 Military Academy while in training there as a 
 student is not a person 'serving in the military 
 or naval forces of the United States ' within the 
 
 meaning of section 1406 of the act of Feb. 24, 
 1919, 40 Stat., 1151, and therefore is not 
 entitled to the $60 war service payment pro- 
 \'ided by said act when honorably discharged . " ) 
 
 A midshipman at the Naval Academy is a 
 "person ser\T.ng in the naval forces of the 
 United States," and one resigning from the 
 naval service under honorable conditions is 
 entitled to the allowance of $60 authorized 
 by the act of February 24, 1919. (File 
 26543-224:11, May 9, 1919; 26543-224:34, Aug. 
 25, 1919.) 
 
 The act of July 1, 1918 (40 Stat., 717), pro- 
 vided "that hereafter, during the existence of 
 war or of a national emergency declared by 
 the President to exist, any commissioned or 
 warrant oflScer of the Navy, Marine Corps, or 
 Coast Guard of the United States on the retired 
 list may, in the discretion of the Secretary of 
 the Navy, be ordered to active duty at sea or 
 on shore; and any retired officer performing 
 such active duty in time of war or national 
 emergency, declared as aforesaid, shall be 
 entitled to promotion on the retired list to the 
 grade or rank, not above that of lieutenant 
 commander in the Navy or major in the Marine 
 Corps or captain in the Coast Guard, and shall 
 thereafter receive the pay and allowances there- 
 of, which his total active service as an officer 
 both prior and subsequent to retirement, in the 
 manner rendered by him, would have enabled 
 him to attain in due course of promotion had 
 such serAdce been rendered continuously on the 
 active list during the period of time last past." 
 Held that the words "total active service as an 
 officer" mean active service as an officer of the 
 kind previously defined in the same pro\dsion, 
 viz, a "commissioned or warrant officer of the 
 Navy, Marine Corps, or Coast Guard," and that 
 ser\dce as a midshipman at the Naval Acad- 
 emy, or service as a midshipman at sea after 
 graduation from the academy, should not be 
 considered in determining the amount of 
 "total active service as an officer." (File 
 26509-225:11, July 12, 1918; affirmed, file 
 26509-225:16. Nov. 6, 1918, and 26509-225:17, 
 Jan. 21, 1919.) 
 
 By act of March 4, 1913, (37 Stat., 891), it was 
 pro\dded that "hereafter the ser\dce of a mid- 
 shipman at the United States Naval Academy, 
 or that of a cadet at the United States Military 
 Academy, who may hereafter be appointed to 
 the United States Naval Academy, or to the 
 United States Military' Academy, shall not be 
 counted in computing for any purpose the 
 length of service of any officer in the Na\y or 
 in the Marine Corps." 
 
 Sec. 1521. [Appointments on graduation.] When cadet midshipmen shall 
 have passed successfully the graduating examination at the Academy, they 
 shall receive appointments as midshipmen and shall take rank according to 
 their proficiency as shown by the order of their merit at date of graduation. — 
 (15 July, 1870, c. 295, s. 12, v. 16, p. 334.) 
 
 Amendments to this section were made by act 
 of August 5, 1882 (22 Stat., 285), wliich 
 changed the title of all undergraduates at 
 the Naval Academy to "naval cadets," 
 provided for appointment of naval cadets. 
 
 on completion of the six years' course, "to 
 fill vacancies in the lower grades of the line 
 and Engineer Coi^ps of the Na\'y and of the 
 Marine Corps," and provided that "so 
 much of section fifteen hundred and 
 
 765 
 
Sec. 1521. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 twenty-one of the Revised Statutes as is 
 inconsistent lierewith is hereby repealed;" 
 by act of March ;i. 1883 (22 Stat., 472), 
 which changed the title of '•midshipmen" 
 to "ensiijns (junior grade);" by act of 
 June 2(3, 1884 (23 Stat., (30), which provided 
 "that from and after tlie passage of this act 
 all graduates of the Naval Academy who 
 are assigned to the line of the Navy, on 
 the successful comi>letion of the six years' 
 course, shall be comiuL'isioned ensigns in 
 the Navy," and that "the grade of junior 
 ensign in the Navv is hereViy abolished " ; 
 by act of March 2, 1889 (25 Stat,. 878), 
 which provided for a division of the first 
 class, commencing their fourth year at the 
 Naval Academy, into two divisions, who 
 were to pursue, respectively, separate 
 courses to fit them for the line of the Navy 
 and of the IMarine Corps, and for the Engi- 
 neer 0oq)8 of the Navy, and provided that 
 from the final graduates^ of the line and 
 Marine Corjis di\ision at the end of their 
 six years' course, "appointments shall be 
 made hereafter as it shall be necessary to 
 fill vacancies in the lowest gi'ades of com- 
 missioned officers of the line of the Na\'y 
 and Marine Corps," and that "vacancies 
 in tlie lowest grades of the commissioned 
 officers of the Engineer Corps of the Navy 
 shall be filled in like manner by appoint- 
 ments from the final graduates of the Engi- 
 neer division at the end of their six years' 
 course," and that "not less than two shall 
 be appointed annually to the Engineer 
 Corps of the Navy, nor less than one an- 
 nuallv to the ^Marine Corps;" by act of 
 July 2(3, 1894 (28 Stat., i24), which pro- 
 \'ided that when necessary the Secretary of 
 the Navy sliould select final graduates in 
 the engineer division or in the line division, 
 as the case might require, "and such final 
 graduates sliall be appointed to fill vacan- 
 cies in the grade of ensign in the Na^y or in 
 the grade of assistant engineer in the Na^'^', 
 respectively;" by act of March 3, 1899 (30 
 Stat., 1004), which abolished the Engineer 
 Corps of the Nav^'; by act of Julv 1, 1902 
 (32 Stat., 686), which changed the title 
 "naval cadet," to "midshipman;" by act 
 of March 7, 1912 (37 Stat., 73), wliich pro- 
 vided that "midshipmen on graduation 
 shall be commissioned ensigns;" bv act 
 of .July 9, 1913 (38 Stat., 103\ which pro- 
 vided "tliat midshipmen on graduation 
 shall be commissioned ensigns in the Na^^y, 
 or may l)e assigned by the Secretary of the 
 Navy to fill vacancies in the lowest com- 
 missioned grades of the Marine Corps or 
 Staff Corps of the Navy;" and by act of 
 May 22, 1917, section 5 (40 Stat., 86), re- 
 enacted by act of July 1, 1918 (40 Stat., 
 716), which pro\dded that "the class of 
 midshipmen graduated from the Naval 
 Academy on March twenty-ninth, nine- 
 teen hundred and seventeen, and the 
 classes to be graduated hereafter, may be 
 commissioned effective from date of 
 graduation." 
 The act of August 5, 1882, above cited, provided 
 that tlie appointments therein provided for 
 were to be made "from the graduates of the 
 
 year, at the conclusion of their six years' 
 course, in the order of merit as determined 
 by the Academic Board of the Naval Acad- 
 emy; the assignment to the various corps 
 to be made by the Secretary of the Navy 
 upon the recommendation of the Academic 
 Board;" the act of March 2, 1889, above 
 cited, provided that the appointments 
 therein provided for were to be made "from 
 the final graduates of the year, in the order 
 of merit as determined by the Academic 
 Board of the Naval Academy, the assign- 
 ment to be made by the Secretary of the 
 NaAy upon the recommendation of tlie 
 Academic Board at the conclusion of the 
 fiscal year then current; " the act of July 26, 
 1894, above cited, provided that the aj)- 
 pointments therein authorized were to be 
 made from final graduates "who shall l)e 
 reported as proficient and be recommended 
 thereto by the Academic Board," and that 
 such appointees should take rank "among 
 themselves according to merit as deter- 
 mined by the Academic Board." 
 The act of March 3, 1899, section 19 (30 Stat., 
 1008), relating to the IMarine Corps, pro- 
 vided "that the vacancies existing in said 
 corps after the promotions and appoint- 
 ments herein provided for shall be filled 
 by the President from time to time, when- 
 ever the actual needs of the naval service 
 require it, first, from the graduates of the 
 Naval Academy in the manner now pro- 
 vided by law," etc.; the act of March 3, 
 1903 (32 Stat., 1198), authorized an in- 
 crease in tlie number of officers in the Ma- 
 rine Corps, and provided that "vacancies 
 in the grade of second lieutenant shall be 
 filled, first, as far as practicable, from grad- 
 uates of the Naval Academy each year on 
 completing the prescribed course at the 
 Naval Academy, exclusive of the proba- 
 tionary tour of sea service before final 
 graduation," etc. 
 The act of August 29, 1916 (39 Stat., 611) pro- 
 ^-ided "that no midshipman at the United 
 States Naval Academy or cadet at the 
 United States Military Academy who fails 
 to graduate therefrom shall be eligible 
 for appointment as a commissioned officer 
 in the Marine Corps until after the gradu- 
 ation of the class of which he was a mem- 
 ber." 
 With reference to rank and precedence of grad- 
 uates of the Naval Academy, see section 
 1483, Revised Statutes, and note thereto; 
 as to pay of midshipmen commissioned 
 within six months after graduation, see act 
 of March 3, 1893 (27 Stat., 716), which 
 allows the pay of the grade in which com- 
 missioned from the date of rank stated in 
 the commission to the date of qualification 
 and acceptance of commission. 
 Prior laws superseded. — The act of August 
 5, 1882 (22 Stat., 285), providing for appoint- 
 ments from the graduates of the Naval Academy 
 to fill A'acancies in the lower grades of the line 
 and engineer corps of the NaA'y and of the Marine 
 Corps, was superseded by the act of March 2, 
 1889 (25 Stat., 878). Next came the act of 
 July 26, 1894 (28 Stat., 124), which was a pro- 
 vision intended to meet exceptional conditions 
 
 766 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1621. 
 
 which can not now arise in view of the act of 
 March 3, 1899 (30 Stat., 1004), transferring the 
 engineer corps to the line; it may therefore be 
 regarded as repealed by the act last cited. 
 (File 5252-36, May 5, 1910.) 
 
 Vacancies must remain unfilled where 
 insufficient graduates. — I nder the act of 
 March 2, 1889 (ch. 396), the vacancies in the 
 lowest grades of commissioned officers in the 
 line and Marine Corps must be filled from the 
 final graduates of the line and Marine Corps 
 di\dsions at Annapolis; so also as to vacancies in 
 the engineer corps. Vacancies in the line and 
 Marine Corps can not be filled from the engineer 
 corps di\'ision or \ice versa. If in any year 
 there are more vacancies in the line and Marine 
 Corps than there are final graduates of the six 
 years' course in the line and marine di^'ision, 
 the vacancies must remain unfilled until the 
 following year; and the same rule apjjlies to 
 vacancies in the engineer corps. (20 Op. Atty. 
 Gen., 615; by act of July 26, 1894, above noted, 
 pro%'ision was made for filling vacancies in the 
 line fi'om the engineer diAision, and vacancies 
 in the engineer corps from the line division. 
 See also later laws above noted.) 
 
 Law does not require that graduates be 
 commissioned. — The act of July 9, 1913 (38 
 Stat., 103), pro\'iding that "midshipmen on 
 graduation shall be commissioned ensigns in 
 the Navy, or may be assigned by the Secretary 
 of the Navy to fill vacancies in the lowest com- 
 missioned grades of the Marine Corps or staff 
 corps of the Navy," could not be held to 
 require the appointment of any midshipman 
 upon gi'aduation as an ensign in the Navy. 
 No act of Congress can compel the President to 
 appoint a midshijjman to the office of ensign in 
 the Navy unless he chooses to make such an 
 appointment. (File 5252-120, May 13, 1919; 
 C. M. 0. 186— 1919.) 
 
 If a midshipman were entitled to be commis- 
 sioned ensign and the President should refuse 
 to issue his commission, no action would lie for 
 the salary of the ofiice which he does not pos- 
 sess. His becoming an ensign depended not 
 upon the operation of law but upon his being 
 nominated by the President and confirmed by 
 the Senate for that office; neither of which 
 things might ever be done. For reasons deemed 
 sufficient, the President might not nominate or 
 the Senate might not confirm him for the 
 position ; or after nomination and confirmation 
 the President might, on grounds considered ade- 
 quate, decline to commission him. In either 
 case he would not be an ensign. The issue of 
 the commission is that which confers the office 
 and the right to its pay. However clear and 
 strong his le^al right might have been to be 
 commissioned as such when he passed the 
 academic examination, the fact remains that he 
 was not so commissioned, and the law gave him 
 no right to the salary until he got the commis- 
 sion. (Benjamin v. U. S., 10 Ct. CIs., 474.) 
 
 The term of office of a naval cadet expires 
 with the completion of his six years' course. 
 If not appointed to another office he ceases to 
 be an officer of the Navy and goes out of office 
 by the expiration of the tenure as limited by 
 law. Where a naval cadet was erroneously dis- 
 charged upon expiration of his six years, due 
 to an error of law, he can not be regarded as 
 
 still in the sendee and entitled to recover pay, 
 either as a naval cadet or as the incumbent of 
 a commissioned office to which he might and 
 should have been appointed; a person can not 
 recover the salary of an office which he does not 
 hold. The case of a naval cadet is to be dis- 
 tinguished from that of a cadet engineer, as the 
 latter could under the law, after graduation, 
 continue^ in the service in the status of a cadet 
 engineer and, where erroneously discharged, 
 could recover the pay of a cadet engineer as 
 though such discharge had not been issued. 
 (Grambs v. U. S., 23 Ct. CIs., 420.) 
 
 Graduates can not be commissioned un- 
 less vacancies exist. — Under the act of 
 August 5, 1882 (22 Stat., 285), a naval cadet 
 who completed his six years' course subse- 
 quent to that year was legally discharged, 
 there being no vancancy to which he could be 
 appointed, notwithstanding the obligation as- 
 sumed by him upon entering the Academy to 
 "serve in the Navy of the United States for 
 eight years, unless sooner discharged by com- 
 petent authority." The discharge in this case 
 was in strict pursuance of law, by an executive 
 officer of the Government, authorized by stat- 
 ute to perform that function. Obligations are 
 not always mutual in the liability of the par- 
 ties to perform. They are often unilateral, 
 giving a right to one to declare the obligation 
 at an end, while the other party is bound to a 
 full performance. The number of men in the 
 Army and Navy is dependent upon the will of 
 Congress. A naval cadet has no vested right 
 to the office, and Congress may prescribe new 
 terms and conditions upon which he may re- 
 main in the service after graduation. (Har- 
 mon V. U. S., 23_Ct. CIs., 132.) 
 
 The provision in the naval appropriation act 
 of August 5, 1882, section 1 (22 Stat., 284, 
 285), which directs in certain cases the honor- 
 able discharge of naval cadets from the Navy 
 with one year's sea pay, is not in conflict with 
 the contract clause of the Constitution of the 
 United States. An officer in the Army or 
 Navy does not hold his office by contract but at 
 the will of the sovereign power. Even if it 
 were true as to other officers of the Navy that 
 their term of office is for life, this would not be 
 true as to a naval cadet appointed under a 
 statute fixing the academic course at six years 
 and who when he entered the service executed 
 a bond to serve for eight years unless discharged 
 by competent authority, thus recognizing his 
 liability to be discharged. (Crenshaw v. 
 U. S., 134 U. S., 99.) 
 
 The act of August 5, 1882 (22 Stat., 285), 
 providing for the discharge of surplus graduates 
 of the Naval Academy, is constitutional. 
 (Harmon v. U. S., 23 Ct. CIs., 406.) 
 
 Midshipmen graduated from the Naval 
 Academy and assigned to the Marine Corps 
 can not be appointed as second lieutenants in 
 the Marine Corps if the grade of second lieu- 
 tenant is filled to the number fixed by law, 
 notwithstanding that the total number of 
 officers allowed by law in the Marine Corps 
 would not be exceeded by their appointment 
 owing to certain vacancies existing in upper 
 grades. There being five vacancies in the 
 Marine Corps on the date of graduation which 
 would result in the promotion of five second 
 
 767 
 
Sec. 1522. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 lieutenants from the date said vacancies 
 occurred, and six midshipmen having been 
 assigneci to th(> Marine ("ori)s, held that five of 
 said midshipmen may be ap{)ointed to the 
 grade of second lieutenant upon the occurrence 
 of the five vacancies in said grade, and if com- 
 niis.><ioned therein within six months from the 
 date of their graduation may be given rank 
 from said date of graduation pursuant to the 
 act of March 3, 1893 (27 Stat., 716). The ap- 
 pointment of the sixth midshipman as a second 
 lieutenant should not be made until a vacancy 
 exists for him in the grade of second lieutenant, 
 and there does not api)ear to be any authority 
 of law for dating his rank ])rior to the date that 
 a sixth vacancy occurs in the Marine Corps. 
 (File 3261-486, June 8, 1916.) 
 
 Status of graduates pending occurrence 
 of vacancies. — Th(> act of March 1, 1917 (39 
 Stat., 1182), authorizes the graduation of mid- 
 shipmen, during a limited ])eriod, who have 
 completed a three-year course at the Naval 
 Academv; the number of officers in the grades 
 
 of lieutenant (junior grade) and ensign is 
 limited by act ai)proved August 29, 1916 (39 
 Stat., 576, 577); asufhcient number of vacancies 
 will not exist in the line of the Navy to permit 
 of commissioning all graduates of the Naval 
 Academy prior to July 1, 1917: Held, that in 
 the meantime such graduates may be ai)pointed 
 as acting ensigns; or may be commissioned as 
 ensigns in the Naval Reserve Force; or may be 
 ordered to duty as "midshipmen after gradua- 
 tion." (File 5252-83, Mar. 20, 1917.) 
 
 See acts of May 22, 1917, section 5, and July 
 1, 1918, noted above. 
 
 Appointment made subject to examina- 
 tion. — A midshipman who, while absent in a 
 distant and foreign station, was nominated and 
 confirmed to be ensign "subject to examination" 
 but who was never examined, never became 
 an ensign and having in the meantime been 
 brought to trial by court-martial was properly 
 tried as a midshipman. (16 Op. Atty. Gen., 
 550.) 
 
 Sec. 1522. [Cadet engineers. Repealed.] 
 
 This section provided as follows: 
 "Sec. 1522. The Secretary of the Navy is 
 authorized to make provision, by regulations 
 issued l)y him, for educating at the Naval 
 Academy, as naval constructors or steam 
 engineers, such midshipmen and others as may 
 show a peculiar aptitude therefor. He may, 
 for this purpose, form a separate class at the 
 Academy, to be styled cadet engineers, or 
 other\\a8e afford to "such persons all proper 
 facilities for such a scientific mechanical edu- 
 cation as will fit them for said professions." — 
 (4 July, 1864, c 252, s. 1, v. 13, p. 393.) 
 
 It was repealed by the act of August 5, 1882 
 (22 Stat., 285), which provided " that hereafter 
 there shall be no appointments of cadet-mid- 
 shipmen or cadet-engineers at the Naval 
 Academy, but in lieu thereof naval cadets shall 
 be appointed from each congressional district 
 and at large, as now provided by law for cadet- 
 midshipmen, and all the undergraduates at the 
 Naval Academy shall hereafter be designated 
 and called 'naA-al cadets;' and from those who 
 successfully complete the six years' course 
 appointments shall hereafter l)e made as it is 
 necessary to fill vacancies in the lower grades 
 of the line and Engineer Corps of the Navy 
 and of the Marine Corps: And -provided further, 
 That no greater number of appointments into 
 these grades shall be made each year than shall 
 ecjual the number of vacancies which has 
 occurred in the same grades during the pre- 
 ceding year; such appointments to be made 
 from the graduates of the year, at the conclu- 
 sion of their six years' course, in the order of 
 merit, as determined by the academic board 
 of the Naval Academy; the assignment to the 
 various corps to be made by the Secretary of 
 the Navy upon the recommendation of the 
 academic board. Butnothing herein contained 
 shall reduce the number of appointments from 
 such graduates below ten in each year, nor 
 deprive of such appointment any graduate 
 who may complete the six years' course during 
 the year eighteen hundred and eighty-two. 
 And if there be a surplus of graduates, those 
 
 who do not receive such appointment shall 
 be given a certificate of graduation, an honor- 
 able discharge, and one year's sea-pay, as now 
 proAided by law for cadet-midshipmen; and 
 so much of section fifteen hundred and twenty- 
 one of the Re\dsed Statutes as is inconsistent 
 herewith is hereby repealed. * * * That 
 the Secretary of the Navy may prescribe a 
 special course of study and training at home or 
 abroad for any naval cadet." 
 
 Later laws relating to this subject are 
 as follows: 
 
 Act of March 2, 1889 (25 Stat., 878):. "That 
 the Academic Board of the Naval Academy 
 shall on or before the thirtieth day of September 
 in each year separate the first class of naval 
 cadets then commencing their fourth year into 
 two diAdsions, as they may have shown special 
 aptitude for the duties of the respective corps, 
 in the proportion which the aggregate number of 
 vacancies occurring in the preceding fiscal year 
 ending on the thirtieth day of June in the low- 
 est grades of commissioned officers of the line 
 of the Navy and Marine Corps of the Navy shall 
 bear to the number of vacancies to be supplied 
 from the Academy occurring during the same 
 period in the lowest grade of commissioned 
 officers of the engineer corps of the Navy; and 
 the cadets so assigned to the line and Marine 
 Corps di\'ision of the first class shall thereafter 
 pursue a course of study arranged to fit them 
 tor 8er\T.ce in the line of the Na^y, and the 
 cadets so assigned to the Engineer Corps di\ision 
 of the first class shall thereafter pursue a sepa- 
 rate course course of study arranged to fit them 
 for ser\ice in the Engineer Corps of the Navy, 
 and the cadets shall thereafter, and until final 
 graduation, at the end of their six years' course, 
 take rank by merit with those in the same divis- 
 ion, according to the merit marks; and from the 
 final graduates of the line and Marine Corps di- 
 \ision, at the end of their six years' course, ap- 
 pointments shall be made hereafter as it shall 
 be necessary to fill vacancies in the lowest 
 grades of commissioned officers of the line of the 
 NaA-y and Marine Corps; and the vacancies in 
 
 768 
 
The Navy. 
 
 PL 2. REVISED STATUTES 
 
 Sec. 1524. 
 
 the lowest grades of the commissioned officers 
 of the Engineer Corps of the Navy shall be 
 filled in like manner by appointments from the 
 final graduates of the Engineer division at the 
 end of their six years' course: Provided, That 
 no greater number of appointments into the 
 said lowest grades of commissioned officers shall 
 be made each year than shall equal the number 
 of vacancies which shall have occurred in the 
 same grades during the fiscal year then current; 
 such appointments to be made from the final 
 graduates of the year, in the order of merit as 
 determined by the Academic Board of the Naval 
 Academy, the assignment to be made by the 
 Secretary of the Navy upon the recommenda- 
 tion of the Academic Board at the conclusion 
 of the fiscal year then current; but notliing 
 contained herein or in the naval appropriation 
 act of August fifth, eighteen hundred and eighty- 
 two, shall reduce the number of appointments 
 of final graduates at the end of their six years 
 course below twelve in each year to the line 
 of the Nax-y, and not less than two shall be 
 appointed annually to the Engineer Corps of 
 the Navy, nor less than one annually to the 
 Marine Corps; and if the number of vacancies 
 in the lowest grades aforesaid, occurring in any 
 year shall be greater than the number of final 
 graduates of that year, the surplus vacancies 
 shall be filled from the final graduates of 
 following years, as they shall become avail- 
 able * * *." 
 
 Act of July 26, 1894 (28 Stat., 124): Provided 
 for appointments to the line of the Navy from 
 the engineer di\'ision, and to the Engineer 
 Corps of the Na\'y from the line di\ision, when 
 necessary. 
 
 Act of March 3, 1899 (30 Stat., 1004) : Abolish- 
 ed the Engineer Corps of the Navy and pro- 
 
 .^ided for transfer of engineer officers to the 
 line. 
 
 Act of August 29, 1916 (39 Stat., 580): Pro- 
 vided for appointment to the line of the Navy, 
 as "acting ensigns for the performance of en- 
 gineering duties only," of persons who "have 
 received a degree of mechanical or electrical 
 engineer from a college or university of high 
 standing," or who are "graduates of technical 
 schools approved by the Secretary of the 
 Navy * * *." 
 
 Act of March 3, 1915 (38 Stat., 945): Pro\'ided 
 that appointments to the grade of assistant 
 naval constructor may be made by transfer 
 from officers of the line of the Navy who have 
 had not less than three years' ser\dce in the 
 grade of ensign and have taken, or are taking, 
 satisfactorily, a post-graduate course in naval 
 architecture uncler orders from the Secretary 
 of the Navy. By act of August 29, 1916 (39 
 Stat., 577), it was proxaded that "vacancies in 
 the Construction Corps shall be filled in the 
 manner now prescribed by law," and that 
 "hereafter ensigns of not less than one year's 
 ser\'ice as such shall be eligible for transfer to 
 the Construction Corps." It had pre\dously 
 been pro\aded by section 1403, Reidsed Stat- 
 utes, that "cadet engineers who are graduated 
 with credit in the scientific and mechanical 
 class of the Naval Academy may, upon the re- 
 commendation of the academic board, be im- 
 mediately appointed as assistant naval con- 
 structors;" and by act of July 9, 1913 (38 Stat., 
 103), that "midshipmen on gi-aduation * * * 
 may be assigned by the Secretary of the Navy 
 to fill vacancies in the lowest commissioned 
 grades of the * * * staff corps of the 
 Navy." 
 
 Sec. 1523. [Number and appointment of. Repealed.] 
 
 This section provided as follows: 
 
 "Sec. 1523. Cadet engineers shall be ap- 
 pointed by the Secretary of the Navy. They 
 shall not at any time exceed fifty in niunber, 
 and no persons, other than midshipmen, shall 
 be eligible for appointment unless they shall 
 fii'st produce satisfactory evidence of mechani- 
 cal skill and proficiency, and shall have passed 
 an examination as to their mental and phvsical 
 qualifications."— (4 July, 1864, c. 252, ss. 3, 4, v. 
 13, p. 393. 2 Mar., 1867, c. 174, s. 2, v. 14, p. 516. 
 22 June, 1874, c. 392, s. 3, v. 18, p. 192.) 
 
 It was amended by act of June 22, 1874, 
 section 3 (18 Stat., 192), which provided that 
 "so much of the act entitled 'An act to author- 
 ize the Secretary of the Navy to pro^dde for 
 the education of naval constructors and steam- 
 engineers, and for other purposes,' approved 
 
 July 4, 1864, as provides that cadet-engineers, 
 not to exceed fifty in number, shall be ap- 
 pointed by the Secretary of the Navy, is hereby 
 repealed; and cadet-engineers shall hereafter 
 be appointed annually by the Secretary of the 
 Navy, and the number appointed each year 
 shall not exceed twenty-five; and that aU acta 
 or parts of acts inconsistent with the provi- 
 sions of this act be, and the same are hereby 
 repealed." (See United States v. Redgrave, 
 116 U. S., 474, 478.) 
 
 It was repealed by act of August 5, 1882 
 (22 Stat., 285), quoted under section 1522, 
 Revised Statutes, which expressly prohibited 
 any further appointments of cadet-engineers. 
 See also later laws noted under section 1522, 
 Revised Statutes. 
 
 Sec. 1524. [Academic course of. Repealed.] 
 
 This section provided as follows: 
 
 "Sec. 1524. The course for cadet engineers 
 shall be four years, including two years of 
 8er^dce on naval steamers. ' ' — (4 July, 1864, c. 
 252, s. 5, V. 13, p. 393. 3 Mar., 1873, c. 230, s. 
 1, V. 17, p. 555. 24 Feb., 1874, c. 35, v. 18, p. 
 17.) 
 
 It was amended to read as above by act of 
 February 24, 1874, section 2 (IS Stat., 17), which 
 
 pro^ided that ' ' from and after the thirtieth day 
 of June, eighteen hundred and seventy-four, the 
 course of instruction at the Na^al Academy for 
 cadet-engineers shall be four years, instead of 
 two as now pro\ided by law; and this provision 
 shall first apply to the class of cadet-engineers 
 entering the academv in the year eighteen hun- 
 dred and seventy-four, and to all subsequent 
 classes; and that all acts or parts of acts incon- 
 
 769 
 
Sec. 1527. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 sistent herewith be, and are hereby, repealed."- 
 This amendment had the effect of requiring 
 four years of instruction at the Naval Academy 
 in addition to the two years' service on naval 
 Bteamera. (See United States v. Redgrave, 
 116 U. S., 474, 478.) 
 
 It was repealed by act of August 5, 1882 
 (22 Stat., 285), quoted under section 1522, 
 Revised Statutes, which expressly prohibited 
 any further ap]>ointments of cadet-engineers. 
 See also later laws noted under sections 1522 
 and 1520, Revised Statutes. 
 
 Sec. 1525. [Examinations of. Repealed.] 
 
 This section provided as follows: 
 "Sec. 1525. (,'adet engineers shall be ex- 
 amined from time to time, according to reg- 
 ulations prescribed by the Secretary of the 
 Navy, and if found deficient at any examina- 
 tion, or if dismissed for misconduct, they shall 
 not be continued in the Academy or in the 
 8er\dce except upon the recommendation of 
 
 the academic board."— (4 July, 1864, c. 252, 
 s. 4, V. 13, p. 393.) 
 
 It was repealed by act of August 5, 1882 
 (22 Stat., 285), quoted under section 1522, 
 Revised Statutes, which expressly prohibited 
 any further appointments of cadet-engineers. 
 See also later laws noted under section 1522, 
 Revised Statutes. 
 
 Sec. 1526. [Studies not to be pursued on Sunday.] The Secretarv of the 
 Navy sliall arrange the course of studies and the order of recitations at the 
 Naval Academy so that the students in said institution sliall not be required 
 to pursue their studies on Sunday. — (15 July, 1870, c. 294, s. 21, v. 16, p. 319.) 
 
 Sec. 1527. [Store-keeper at the Academy.] The store-lceeper at the Naval 
 Academy shall be detailed from the Paymaster's Corps, and shall have au- 
 thority, with the approval of the Secretary of the Navy, to procure clothing 
 and other necessaries for the midshipmen and cadet engineers in the same 
 manner as supplies are furnished to the Navy, to be issued under such regula- 
 tions as may be prescribed by tlie Secretary of the Navy. — (2 IVfar., 1867, 
 c. 174, s. 4, V. 14, p. 516.) 
 
 Amendments to this section were made by the 
 act of July 11, 1919 (41 Stat., 147), which 
 p^o^'ided that "hereafter the Pay Corps 
 shall be called the Supply Corps;" by act 
 of August 5, 1882 (22 Stat., 285), quoted 
 under section 1522, ReAT.sed Statutes, 
 which expressly prohibited any further 
 appointments of cadet-engineers; and by 
 act of May 13, 1908 (35 Stat., 153), which 
 proA-ided that ' ' the Secretary of the Treas- 
 ury is hereby authorized and directed to 
 close and balance as expended the sum of 
 twenty-four thousand five hundred dollars 
 now standing on the books of the Treasury 
 \inder the appropriation 'Pay of the Navy,' 
 which was ad^'anced by direction of the 
 Secretary of the Navy in eighteen hundred 
 and sixty-seven and eighteen hundred and 
 sixty-eight, and has heretofore been used 
 as a midshipmen's store fund at the Naval 
 Academy: Provided. That hereafter the 
 storekeeper at the Naval Academy, auth- 
 orized by section fifteen hundred and 
 twenty-seven of the Re\-i8ed Statutes, 
 shall render quarterly returns of property 
 to the Chief of the Bureau of Supplies and 
 Accounts, under such regulations as the 
 Secretary of the Navy may prescribe. A 
 full report shall be made annually of re- 
 ceipts and expenditures by the Chief of the 
 Bureau of Supplies and Accounts to the 
 Secretarj^ of the Navy: And provided fur- 
 ther, That an inspection of the store- 
 keeper's accounts shall be made quarterly 
 by the general inspector of the Pay Corps 
 [now Supply Corps], with such recommen- 
 dation Jis he may deem necessarj-, to the 
 
 Chief of the Bureau of Supplies and Ac- 
 counts." 
 
 Midshipmen's store fvind. — Prior to 1867 
 a ci^ilian storekeeper pro\'ided for the needs of 
 the midshipmen under an arrangement made 
 between himself and the officials of the Acad- 
 emy. This arrangement was not satisfactory', 
 and. in 1867 and 1868, by direction of the Sec- 
 retary of the Navy, the sum of §24,500 was ad- 
 vanced for the purpose of taking over the said 
 store and of carr^nng it on. This was done 
 from the appropriation, "Pay of the Navy." 
 Held, that the sum of $24,500 aforesaid is public 
 money and that said sum and the accumulated 
 profits, if any, should be covered into the 
 Treasury; that the establishment of said fund 
 and the present manner of conducting the store 
 at the Naval Academy are without authority of 
 law, it being pro^ided by the act of June 19, 
 1878 (20 Stat., 167), section 2, that " 'Pay of the 
 Navy ' shall hereafter be used only for its legiti- 
 mate purpose, as pro^'ided by law," and by act 
 of July 26, 1886, section 2 (24 Stat., 157), that 
 "all l^alances of money appropriated for pay of 
 the Navy or pay of the ]\Iarine Corps for any 
 year existing after the accounts for said year 
 shall have been settled shall be carried into the 
 Treasury." Held, further, that by section 1527 
 of the ReAised Statutes it was clearly the in- 
 tention of Congress that the supplies for the 
 Naval Academj^ store should be procured in the 
 same manner as other naval stores. (14 Comp. 
 Dec, 680. But see act of May 13, 1908, quoted 
 above.) 
 
 Naval Academy dairy. — Pro\'isions for 
 purchase of land and establishment of dairy 
 thereon were contained in act of !March 4, 1913 
 
 no 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1528. 
 
 (37 Stat., 904), which pro\'ided that appropria- 
 tion therein made for the purpose should be 
 treated as an adA'ance to tlie midshipmen's 
 store fund, to be ultimately repaid to the United 
 States, and that expenditures therefrom should 
 be reported by the Chief of the Bureau of Sup- 
 plies and Accounts to the Secretary of the Navy. 
 
 Midshipmen's commissary fund. — Such 
 additional payments from this fund as the 
 Superintendent may deem necessary may be 
 made to servants authorized in the commissary 
 department. (Act Mar. 4, 1913, 37 Stat., 907. 
 See also note to sec. 2.36, R. S., under "II. 
 Jurisdiction of Accounting Officers," subhead- 
 ing "Public Money.") 
 
 Sec. 1.528. [Professors of ethics, Spanish, and drawing-.] Three professors 
 of mathematics shall be assigned to duty at the Naval Academy, one as professor 
 of ethics and English studies, one as professor of the Spanish language, and 
 one as professor of drawing. — (21 May, 1864, c. 93, s. 3, v. 13, p. 85.) 
 
 By act of August 29, 1916 (39 Stat., 577), it 
 was provided that "hereafter no further 
 appointments shall be made to the corps of 
 professors of mathematics, and that corps 
 shall cease to exist upon the death, resig- 
 nation, or dismissal of the officers now 
 carried in that corps on the active and 
 retired lists of the Navy." (See sees. 
 1399-1401, and notes thereto, with refer- 
 ence to the number of professors of mathe- 
 matics, their appointment, duties, etc.) 
 
 By act of August 29, 1916 (39 Stat., 607), it 
 was provided that "the Secretary of the 
 Navy is authorized to employ at the Naval 
 Academy such number of professors and 
 instructors, including one professor as 
 librarian, as, in his opinion, may be 
 necessary for the proper instruction of the 
 midshipmen; and that professors and in- 
 . structors so employed shall receive such 
 compensation for their services as may 
 be prescribed by the Secretary of the Navy : 
 Provided further, That the total amount so 
 paid shall not exceed $175,000 annually: 
 And provided further, That the Secretary 
 of the Navy shall report to Congi-ess each 
 year the niunber of professors and instruc- 
 tors so employed and the amount of com- 
 pensation prescribed for each." (It had 
 previously been provided by act Mar. 
 
 2, 1895, 28 Stat., 837, that "any assistant 
 professor at the Naval Academy who served 
 as such for five years shall have the title 
 and pay of a professor," and by act Mar. 
 
 3, 1897, 29 Stat., 661, that "the proper 
 pay officer of the Navy be, and is hereby, 
 authorized to pay the professors at the 
 Naval Academy, whose compensation was 
 affected by the Act making appropriations 
 for the naval service for the fiscal year 
 ending June thirtieth, eighteen hundred 
 and ninety-six, approved March second, 
 eighteen hundred and ninety-five, at the 
 
 rate of compensation fixed by that Act 
 from July first, eighteen hundred and 
 ninety-six.") 
 By act of ]\Iay 18, 1920, section 7 (41 Stat., 603), 
 the Secretary of the Navy was authorized 
 in his discretion to readjust the prevailing 
 rates of pay of civilian professors and in- 
 structors at the Naval Academy, said read- 
 justment to be effective from January 1, 
 1920, and not to involve an additional 
 expenditure in excess of $55,000 for the 
 remainder of the current fiscal year. 
 Commissioned as professors of mathe- 
 matics. — Although the title conferred by law 
 is a misnomer, held that the heads of the 
 departments of ethics and English studies, of 
 Spanish and other modern languages, and of 
 drawing, should be commissioned as professors 
 of mathematics under section 1528, Revised 
 Statutes, after passing the examinations re- 
 quired by the act of January 20, 1881 (21 Stat., 
 317). The pm-pose that persons known to the 
 law and the Navy Register as "professors of 
 mathematics" should be engaged in teaching 
 other branches of learning is too obvious for 
 construction. That the name did not indicate 
 the sole duties of the office is further apparent 
 from the express declaration of the act of 
 August 3, 1846, section 12 (now sees. 1399-1401, 
 R. S.), "that the number of professors of mathe- 
 matics in the Navy shall not exceed twelve; 
 that they shall be appointed and commissioned 
 by the President of the United States, by and 
 with the advice and consent of the Senate, 
 and shall perform such duties as may be assigned 
 them by order of the Secretary of the Navy at 
 the Naval School, the Observatory, and on 
 board ships of war in instructing the midship- 
 men of the Navy, or otherwise.^'' Section 1528 
 shows that, certainly as to three of these pro- 
 fessors, the duties to be assigned were not to 
 be mathematical in their nature. (17 Op. 
 Atty. Gen., 103.) 
 
 in 
 
CHAPTER SIX. 
 
 VESSELS AND NAVY YARDS. 
 
 Sec. 
 
 1529. Classification and command of vessels. 
 
 1530. Rating of vessels. 
 
 1531. Rule for naming vessels. 
 
 1532. Two vessels not to bear the same name. 
 
 1533. Names of purchased vessels. 
 
 1534. Vessels kept in semce in time of peace. 
 
 1535. Vessels, how officered and manned. 
 
 1536. Vessels to assist distressed navigators. 
 
 1537. Patented articles connected with marine 
 
 engines. 
 
 1538. Repairs on hull and spars. 
 
 Sec. 1529. [Classification and command of vessels. Superseded.] 
 
 Sec. 
 
 1539. Repairs on sails and rigging. 
 
 1540. Sale of vessels unfit to be repaired. 
 
 1541. Sale of unserviceable vessels and mate- 
 rials. 
 
 1542. Commandants of navy yards. 
 
 1543. Master workmen. 
 
 1544. Laborers, how selected. 
 
 1545. Salaries; per diem compensation. 
 
 1546. Requiring contributions for political 
 purposes. 
 
 This section provided as follows: 
 
 "Sec. 1529. The vessels of the Navy of the 
 United States shall be di^dded into four classes, 
 and shall be commanded as nearly as may be 
 as follows: 
 
 ' ' First rates, by commodores; second rates, by 
 captains; third rates, by commanders; fourth 
 rates, by lieutenant-commanders." — (16 July, 
 1862, c. 183, 8. 3, V. 12, p. 583.) 
 
 It was superseded by act of March 3, 1901 
 (31 Stat., 1133), which provided as follows: 
 
 "That the President of the United States be, 
 and he is hereby, authorized to establish, and 
 from time to time to modify, as the needs of the 
 service may require, a classification of vessels 
 of the Navy, and to formulate appropriate rules 
 governing assignments to command of vessels 
 and squadrons." 
 
 A classification of vessels of the Navy was 
 estaljlished by General Order No. 541 of July 
 17, 1920. 
 
 "Vessels" defined. — See section 3, Revised 
 Statutes. 
 
 Lost vessels. — How date of loss to be deter- 
 mined : See section 286, Revised Statutes. 
 
 Authority of officers over crew after loss of 
 vessel: See section 1624, Revised Statutes, 
 article 21. 
 
 Accounts of seamen on lost vessels, com- 
 pensation for personal effects lost, etc. See 
 sections 287-290, Re\i8ed Statutes. 
 
 Collisions. — Claims for damages occasioned 
 by collisions for which vessels of the Navy are 
 responsible, to be adjusted by the Secretary of 
 the Na\y, where amount does not exceed $500. 
 (Act June 24, 1910, 36 Stat., 607.) 
 
 Ocean mail vessels. — To be constructed 
 with particular reference to their prompt con- 
 version into auxiliary cruisers. (Act Mar. 3, 
 1891, sec. 4, 26 Stat., 881.) 
 
 Suits by or against commanding officers 
 of naval vessels. — See note to section 189, 
 Revised Statutes, and note to Constitution, 
 Article I, section 8, clause 13. 
 
 Officers of vessels. — To be citizens of the 
 United States. (Sec. 1428, _R. S.) 
 
 Retired officers may be assigned to command 
 vessels and squadrons in time of war. (Sees. 
 1463-1465, R. S.) 
 
 Officers and men not to be shipped for serv- 
 ice on United States auxiliary vessels unless 
 members of the Naval Reserve Force. (Act 
 Aug. 29, 1916, 39 Stat., 589.) 
 
 Employment of naval vessels. — Secretary 
 of the Na^ y to execute the orders of the Presi- 
 dent relating to employment of vessels of war. 
 (Sec. 417, R. S.) 
 
 Vessels of the United States and their com- 
 manders may be directed by the President 
 to examine vessels registered under the laws 
 of the United States which are believed to be 
 engaged in the coolie trade, and in proper 
 cases to cause any vessel so examined to be 
 delivered with her officers and crew to a United 
 States marshal. (Sec. 2163, R. S.) 
 
 Officers of the Navy may be detailed to 
 make arrests and seize vessels and sponges in 
 enforcement of law regulating sponge trade in 
 Gulf of Mexico or Straits of Florida. (Act 
 Aug. 15, 1914, sec. 5, 38 Stat., 692.) 
 
 Vessels of the Navy may be used to protect 
 merchant vessels against piratical vessels. 
 (Sec. 4294, R. S.) 
 
 May be used to patrol waters frequented by 
 seal herds and sea otter, and search and seize 
 vessels violating law relating thereto. (Act 
 Aug. 24, 1912, sec. 9, 37 Stat., 501.) 
 
 Not to re^'eive goods or merchandise for 
 freight, except gold, silver, or jewels, without 
 authority from President or Secretary of the 
 Navy. (Sec. 1624, R.S., art. 13.) 
 
 Secretary of the Navy may, in his discretion, 
 at the request of the National Board of Health, 
 place gratuitously at the disposal of the Com- 
 missioners of Quarantine or the proper author- 
 ties at any of the ports of the United States, 
 to be used by them temporarily for quarantine 
 purposes, such vessels belonging to the United 
 
 772 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1529. 
 
 States as are not required for other uses of the 
 National Government, subject to such restric- 
 tions and regulations as he may deem necessary 
 to impose for the preservation thereof. (Act 
 June 14, 1879, 21 Stat., 50.) 
 
 Vessels may be loaned, upon written appli- 
 cation of the governor of the State, to nautical 
 schools at Boston, Philadelphia, New York, 
 Seattle, San Francisco, Baltimore, Detroit, 
 Saginaw, Mich., Norfolk, and Corpus Christi. 
 (Act Mar. 4, 1911, 36 Stat., 1353.) 
 
 The President was authorized to employ 
 public vessels in surveying the coast of the 
 United States, by section 4686, Revised 
 Statutes. (See note to sec. 264 R. S.) 
 
 The Secretary of the Navy is authorized to 
 place the vessels of the United States Fish 
 Commission on the same footing with the Na\'y 
 Department as those of the United States 
 Coast and Geodetic Sur\-ev, by act of May 31, 
 1880. (21 Stat., 151, see note to sec. 264, R. S.) 
 
 One fully equipped man-of-war's cutter may 
 be loaned, upon application of the governor, to 
 one well-established military school in any 
 State having eeacoast line or bordering on one 
 ormore of the Great Lakes. (ActMar. 3, 1901, 31 
 Stat., 1440, amended bv acts June 29, 1906, 34 
 Stat., 620, and June 24,1910, 36 Stat., 613.) 
 
 For other laws, see section 1536, Revised 
 Statutes, and note thereto. 
 
 Expenses incurred by vessels rendering 
 services for other departments. — See note 
 to section 1437, Re\dsed Statutes. 
 
 Jurisdiction over vessels of the Navy. — 
 Freedom from State interference. (See notes 
 to Constitution, Art. I, sec. 8, clauses 13 and 
 14; and note to sec. 355, R. S.) 
 
 Command of hospital ships by medical 
 officers. — See note to section 1488, Rexdsed 
 Statutes. 
 
 Power of President as Commander in 
 Chief.— The act of March 3, 1901 (quoted 
 above), is plainly intended to amend the pre- 
 \'iou3 statutes on the subject, and is designed 
 to allow the President to reclassify the vessels 
 of the Na\'y that had theretofore been fixed 
 by section 1529, Revised Statutes, and to 
 authorize him to assign the command of ves- 
 sels, omitting all restrictions. He is by that 
 act given the full power contemplated in that 
 pro\dsion of the Constitution which makes him 
 Commander in Chief of the Army and Na\'y. 
 The act of March 3, 1901, is a complete sub- 
 stitute for prior laws or customs. The language 
 of that act is clear and unambiguous, and was 
 enacted with a full knowledge of the conditions 
 brought about by prior laws and of the neces- 
 sity of a new and elastic system by which the 
 President could from time to time make such 
 regulations as the necessities of the changing 
 conditions in the serxice should require. (27 
 Op. Atty. Gen., 571.) 
 
 Under pre\-iou3 laws it was held that, when 
 the rate of a ship of war has been fixed by 
 statute, it can not be changed by an order of 
 the Navy Department in so far as to affect the 
 compensation of an officer of the Navy; that it 
 is the established course of the legislation of the 
 United States to designate the rate of ships of 
 war when authorizing their construction; that 
 of all this, Congress has jiuisdiction, which it 
 
 er.ercises in its constitutional discretion; that 
 it may affix to certain ships of the Navy, by 
 express names, a specified rate, and to others a 
 ditferent rate, which rates l)ind the Secretary 
 of the Navy in so far as they are employed by 
 the statutes for any statutory object, such as to 
 measure of pay, although they may not for 
 other objects, which the statute leaves to the 
 discretion of the executive; that in general, 
 and as the apparently sett led legislative policy 
 of the Government, Congress reserves itself the 
 power of designating the character as well as 
 the number of vessels of the Navy; that if the 
 legislative nomenclature be an anomaly 
 Congress may change same, if it will, but that 
 to do so exceeds the power of the executive. (8 
 Op. Atty. Gen., 503, Mar. 3, 1857; compare 10 
 Comp. Dec, 516; see also 10 Comp. Dec, 122, 
 and 12 Comp. Dec, 373.) 
 
 For other cases, as to the power of Congress 
 and of the President as Commander in Chief, 
 see note to Constitution, Article II, section 2, 
 clause 1. 
 
 Ownership of vessel not accepted by the 
 Government but in possession of the 
 builders. — Where a vessel is on her trial trip 
 prior to acceptance, and still within the pos- 
 session and control of the builders, the United 
 States, however, haA-ing, by the payment of 
 installments, acquired 49 out of 50 parts of the 
 vessel, she must be regarded as practically the 
 property of the Government. (Williams v. 
 U. S., 47 Ct. Cls., 186.) 
 
 The Attorney General defers answering the 
 question as to the right of the Secretary of the 
 Navy, under the direction of the President, to 
 employ the military forces of the Government to 
 obtain possession of the cruiser Galveston, 
 in course of construction under contract with 
 the Wm. R. Trigg Co., of Richmond, Va., 
 which company has gone into the hands :f a 
 receiver appointed by the chancery court of 
 Virginia, for the reason that a method of proce- 
 dure in such cases is provided for by section 
 3753, Re\'ised Statutes, and occasion for the 
 exercise of this power is not likely to arise if 
 the stipulation authorized by that section ia 
 filed. (24 Op. Atty. Gen., 679.) 
 
 It is not to be doubted for a moment that the 
 United States is entitled to the undisturbed 
 possession and control of its property and of 
 property in which it is interested to the 
 extent of that interest, and that this possesion 
 and control are exempt from the process of 
 every court. Yet, in order to avoid unseemly 
 clashing and hostile demonstration upon the 
 part of creditors or claimants, Congress has by 
 the law embodied in sections 3753 and 3754, 
 Revised Statutes, provided an orderly and 
 peaceful solution of controversies that may arise 
 between parties claiming adversely to the 
 United States, under the terms of which the 
 utmost rights of all claimants are preserved 
 without the functions of the Government being 
 in the slightest disturbed. However, thislaw 
 is not mandatory in its pro\'isions, and in a 
 palpable case of improper interference with 
 the Government's rights the strong Executive 
 arm may be relied upon for the protection of its 
 sovereignty. (24 Op. Atty. Gen., 679, 683.) 
 
 773 
 
Sec. 1534. 
 
 n. >. RE VISED STAT UTES. 
 
 The Navy. 
 
 Quite apart from the statute, and because of 
 the nature of the ca^e, it is impossible, on 
 primary grounds, to yield assent at all to the 
 idea tliat any instrumentality of the Govern- 
 ment — in this case an instrumentality of prime 
 importance — may l)e taken iulo custody and 
 held under any adverse authority whatever. 
 This \ie\\' applies whether the adverse custody 
 
 should assume to attach upon the instrumen- 
 tality as a completed thing or upon one in 
 process of creation. (24 Op. Atty. Gen., 679, 
 682.) 
 
 P'or other cases as to the freedom of Federal 
 instrumentalities from State interference, see 
 note to Constitution, Article I, section 8, 
 clause 13. 
 
 Sec. 1530. [Rating of vessels. Superseded.] 
 
 Tliis section provided as follows: 
 
 "Sec. 1530. Steamships of forty guns or 
 
 more shall be classed as first rates, those of 
 
 twenty guns and under forty as second rates, 
 
 and all those of less than twenty guns as third 
 
 rates. " — (12 June, 1858, c. 153, s. 5, v. 11, p. 
 319.) 
 
 It was superseded l)y act of March 3, 1901 
 (31 Stat., 1133), quoted above under section 
 1529, Revised Statutes. 
 
 Sec. 1531. [Rule for naming vessels. Superseded.] 
 
 This section provided as follows: 
 
 "Sec. 1531. The vessels of the Na^-y shall 
 be named by the Secretarj^ of the Navy, under 
 the direction of the President, according to 
 the following rule: 
 
 "Sailing-vessels of the first class shall be 
 named after the States of the Union, those of 
 the second class after the rivers, those of the 
 third class after the principal cities and towns, 
 and those of the fourth class as the President 
 may direct. 
 
 ''Steamships of the first class shall be named 
 after the States of the Union, those of the 
 second class after the rivers and principal 
 cities and towns, and those of the third class as 
 the President may direct." — (3 Mar., 1819, c. 
 7, 8. 1, v. 3, p. 538. 12 June, 1858, c. 153, s. 5, 
 v. 11, p. 319.) 
 
 It was superseded by the act of March 3, 
 1901 (31 Stat., 1133), quoted above, under 
 section 1529, Revised Statutes, which expressly 
 authorized the President to establish a classi- 
 fication of vessels of the Navy, and from time 
 to time to modify such classification, thereby 
 superseding the provisions of this section 
 which established rules for naming vessels 
 according to the classification prescribed by 
 sections 1529 and 1530, Revised Statutes. (See 
 file 26255-614, Aug. 9, 1920, and 26255-614:10, 
 Jan. 21, 1921.) 
 
 Other provisions for naming vessels 
 were embodied in the act of May 4, 1898 (30 
 Stat., 390), as follows: "Hereafter all first- 
 class battle ships and monitors owned by the 
 United States shall be named for the States, 
 and shall not be named for any city, place, or 
 person until the names of the States, shall have 
 been exhausted: Provided, That nothing 
 herein contained shall be so construed as to 
 interfere with the names of States already as- 
 signed to any such battle ship or monitor. " 
 
 The act of May 4, 1898, was modified 1)y act 
 of May 13, 1908 (35 Stat., 159), which provided 
 that so much of said act of May 4, 1898, "as 
 pro^-ides that monitors owned by the United 
 States shall be named for the States, and shall 
 not be named for any city, place, or person 
 until the names of the States shall have been 
 exhausted, is hereby repealed, and monitors 
 now owned l)y the United States or hereafter 
 built may be named as the President may 
 direct. " (See file 26255-614, Aue. 9, 1920, and 
 26255-614:10, Jan. 21, 1921.) 
 
 Gifts to vessels from States, munici- 
 palities, or others, presented in accordance 
 with custom, may be accepted by the Secre- 
 tary of the Navy. (Act May 20, 1908, 35 Stat., 
 171.) 
 
 Sec. 1532. [Two vessels not to bear the same name.] Care shall be taken 
 that not more than one vessel in the Xav}^ shall bear the same name. — (3 Mar., 
 1819, c. 7, s. 1, V. 3, p. 538. 12 June, 1858, c. 153, s. 5, v. 11, p. 319.) 
 
 Sec. 1633. [Names of purchased vessels.] The Secretary of the Navy- 
 may change the names of any vessels purchased for the Navy by authority of 
 law.— (5 Aug., 1861, 0. 51, s. 2, v. 12, p. 316.) 
 
 When in the opinion of the President the prices 
 asked for the charter of vessels for the trans- 
 portation of fuel for the Navy are excessive, 
 he is authorized to purchase vessels suita- 
 
 ble for the purpose, and if money is not 
 otherwise available to pay for them from 
 the appropriation "Fuel and transporta- 
 tion." (Act July 1, 1918, 40 Stat., 730.) 
 
 Sec. 1534. [Vessels kept in service in time of peace.] The President is 
 authorized to keep in actual service in time of peace, such of the public armed 
 vessels as, in his opinion, may be required by the nature of the service, and to 
 cause the residue thereof to be laid up in ordinarj^ in convenient ports. — (21 
 April, 1806, c. 35, s. 2, v. 2, p. 390.) 
 
 774 
 
The Navy. 
 
 Pt.2. RE VISED STAT UTES. 
 
 Sec. 1536. 
 
 Sec. 1535. [Vessels, how officered and manned.] Vessels in actual service, 
 
 in time of peace, shall be officered and manned as the President may direct, 
 
 subject to the provisions of section fifteen hundred and twenty-nine. — (21 April, 
 
 1806, c. 35, s. 3, V. 2, p. 390.) 
 
 Amendment to this eection was made by act | of section fifteen hundred and twenty- 
 
 of March 3, 1901, quoted above, under nine, " appearing in this section, 
 
 section 1529, Revised Statutes, which act In time of war retired officers may be assigned 
 
 superseded section 1.529 and thereby super- to the command of vessels and squadrons, 
 
 seded the words, "subject to the provisions (Sees. 1463-1465, R.S.) 
 
 Sec. 1536. [Vessels to assist distressed navigators.] The President may, 
 when the necessities of the service permit it, cause any suitable number of 
 public vessels adapted to the purpose to cruise upon the coast in the season of 
 severe weather and to afford such aid to distressed navigators as their circum- 
 stances may require ; and such public vessels shall go to sea fully prepared to 
 render such assistance. — (22 Dec, 1837, c. 1, v. 5, p. 208.) 
 
 By act of March 3, 1905 (33 Stat., 1164), it was 
 pro\dded that "the President in his dis- 
 cretion may temporarily detail any vessel 
 or vessels of the Navy to remove or destroy 
 derelicts in the course of vessels at sea, " 
 etc. 
 
 By act" of May 12, 1906 (34 Stat., 190), the 
 Secretary of the Treasury was authorized 
 to have constructed a vessel " for the pur- 
 pose of blomng up or otherwise destroying 
 or towing into port wrecks, derelicts, and 
 other floating dangers to navigation." 
 
 Section 2759, Revised Statutes, provided that 
 " the revenue cutters on the northern and 
 northwestern lakes, when put in corunais- 
 sion, shall be specially charged with aiding 
 vessels in distress on the lakes." 
 
 By act of April 19, 1906 (sec. 2, 34 Stat., 123), 
 the construction was autliorized, under 
 the supervision of the Revenue-Cutter 
 Service, of a first-class ocean-going tug 
 for service in saving life and property in 
 tlie vicinity of the north Pacific coast of 
 the United States, to be equipped with 
 modern life and property saving appli- 
 ances useful in assisting vessels and res- 
 cuing persons and property from the 
 perils of the sea. 
 
 By resolution of October 31, 1893 (28 Stat., 13), 
 it was provided that "the President of the 
 United States be, and he is hereby, author- 
 ized to make, with the several Govern- 
 ments interested in the navigation of the 
 North Atlantic Ocean, an international 
 agreement providing for the reporting, 
 marking, and removal of dangerous 
 wrecks, derelicts, and other menaces to 
 navigation in the North Atlantic Ocean 
 outside the coast waters of the respective 
 countries bordering thereon." 
 
 By act of July 1, 1918 (40 Stat., 705), it was 
 provided "that hereafter the Secretary 
 of the Navy is authorized to cause vessels 
 under his control adapted to the purpose, 
 to afford salvage service to public or pri- 
 vate vessels in distress: I'rovided, That 
 when such salvage service is rendered by 
 a vessel specially equipped for the purpose 
 or by a tug, the Secretary of the Navy may 
 determine and collect reasonable compen- 
 sation therefor." 
 
 By section 4642, Revised Statutes, it is pro- 
 vided that all salv^age accruing or awarded 
 to any vessel of the Navy shall be distrib- 
 uted and paid to the officers and men 
 entitled thereto in the same manner as 
 prize money, under the direction of the 
 Secretary of the Navy. The laws relating 
 to prize were contained in sections 4613- 
 4652, Revised Statutes. By act of March 
 3, 1899, section 13 (30 Stat., 1007), it was 
 provided that "all provisions of law 
 authorizing the distribution among cap- 
 tors of the whole or any portion of the pro- 
 ceeds of vessels, or ar y property hereafter 
 captured, condemned as prize, or providing 
 for the payment of bounty for the sinking 
 or destruction of vessels of the enemy 
 hereafter occurring in time of war, are 
 herel^y repealed . ' ' 
 By act of April 28, 1908 (35 Stat., 69), it was 
 provided that the authority therein con- 
 ferred upon the Secretary of Commerce to 
 make and enforce regulations to promote 
 the safety of life on navigable waters 
 during regattas or marine parades may be 
 transferred for any special occasion to the 
 head of another department by the Presi- 
 dent whenever in his judgment such 
 transfer is desirable. 
 By act of March 3, 1883 (22 Stat., 475), the 
 Secretary of the Navy was authorized to 
 constitute and introduce, as a portion of 
 the equipment of the Navy, the life-saving 
 dress adopted and approved by the Life- 
 Saving Service of the United States, (By 
 act of Jan. 28, 1915, 38 Stat., 800, the Life- 
 Saving Service and the Revenue-Cutter 
 Service were amalgamated under the name 
 of the "Coast Guard.") 
 Salvage. — Under section 1536, Revised 
 Statutes, it is a part of the duty of the Navy to 
 assist vessels in distress. In an opinion ren- 
 dered as early as July 8, 1856 (7 Op. Atty. Gen., 
 756), the Attorney General remarked that 
 '"officers and crews' of the public ships of the 
 United States are not entitled to salvage, civil 
 or military, as of complete legal right," and 
 that "the" allowance of salvage, civil or mili- 
 tary, in such cases, like the allowance of prize 
 monev on captures, is against public policy, 
 and ought to be abolished in the sea service as 
 
 775 
 
Sec. 1538. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 it was long ago in the land service." The dis- 
 tribution of prize money has since been al)ol- 
 ished by statute (see note above), but there has 
 been no late legislation respecting salvage. 
 (Naval Dig. 1916, p. 557, citing file 4496-79, 
 Oct. 17, 1907. But see act July 1, 1918, noted 
 above.) 
 
 In the recent history of the Navy no claim 
 has ])eon allowed for salvage, the Navy Depart- 
 ment haA-ing taken the ground, in a number of 
 cases, that such claims should not be made. 
 In one or two instances, where a bonus was 
 
 voluntarily tendered for distribution among 
 the officers and men of a naval vessel, such gift 
 has been informally accepted. (Naval Dig. 
 1916, p. 557, citing file Nos. 4496-79, Oct. 17, 
 1907; 7173; 27601-116; 2, May 17, 1915; 27673- 
 342, Dec. 23, 1915.) 
 
 In a recent salvage case the actual cost of 
 certain sah-age serxices rendered a merchant 
 vessel by a naval vessel was collected and de- 
 posited to the credit of the United States. 
 (Naval Dig. 1916, p. 557, citing file 27601-116.) 
 
 Sec. 1537. [Patented articles connected with marine engines.] No patented 
 article connected with marine engines shall hereafter be purchased or used in 
 connection with any steam-vessels of war until the same shall have been sub- 
 mitted to a competent board of naval engineers, and recommended by such 
 board, in writing, for purchase and use. — (18 July, 1861, c. 8, s. 3, v. 12, p. 268.) 
 
 time of his employment or ser\ice. (Act 
 July 1, 1918, 40 Stat., 705, amending act 
 June 25, 1910, 36 Stat., 851. See also note 
 to Constitution, Art. I, sec. 8, clause 8.) 
 
 Suit may also be brought for use of invention by 
 the United States prior to issuance of 
 patent, where the grant of a patent was 
 withheld by order of the President in the 
 interest of the pubUc safety or defense. 
 (Act Oct. 6, 1917, sec. 10, 40 Stat., 422.) 
 
 The Secretary of the Navy was authorized, by 
 act of August_29, lOio (39 Stat., 570), to 
 construct, equip, and operate a laboratory 
 for experimental and research work on the 
 subject, among others, of "improvement 
 and development in submarine engines," 
 and such other necessary work for the 
 benefit of the Government service. 
 
 No application for patent shall be regarded as 
 
 abandoned which has become the property 
 
 of the Government of the United States 
 
 and which is important to the armament 
 
 or defense of the United States. (Sec. 
 
 4894, R. S., amended by act July 6, 1916, 
 
 39 Stat., 348.) 
 Patent may be granted to public officers with- 
 out payment of any fee where the inven- 
 tion is used or to be used in the public 
 
 ser\dce without payment of royalty. (Act 
 
 Mar. 3, 1883, 22 Stat., 625.) 
 Suit for compensation may be brought against 
 
 the United States in Court of Claims for 
 
 use of patented inventions without lawful 
 
 authority, except where patentee is in the 
 
 BerAdce of the United States, and except 
 
 where the invention was made by an 
 
 employee of the United States during the 
 
 Sec. 1538. [Repairs on hull and spars.] Not more than three thousand 
 
 dollars shall be expended at any navy-yard in repairing the hull and spars of 
 
 any vessel, until the necessity and expediency of such repairs and the probable 
 
 cost thereof are ascertained and reported to the Navy Department by an 
 
 examining board, which shall be composed of one captain or commander in the 
 
 Navy, designated by the Secretary of the Navy, the naval constructor of the 
 
 yard where such vessel may bo ordered for repairs, and two master workmen 
 
 of said yard, or one master workman and an engineer of the Navy, according 
 
 to the nature of the repairs to be made. Said master workmen and engineer 
 
 shall be designated by the head of the Bureau of Construction and Repair. — 
 
 (21 Feb., 1861, c. 49, s. 1, v. 12, p. 147.) 
 
 cost of such repairs, to be appraised by a 
 competent board of naval officers, shall 
 exceed twenty per centum of the estimated 
 cost, appraised in like manner, of a new 
 ship of the same size and like material: 
 Provided further, That nothing herein con- 
 tained shall deprive the Secretary of the 
 Navy of the authority to order repairs of 
 ships damaged in foreign waters or on the 
 high seas, so far as may be necessary to 
 bring them home." 
 The urgent deficiency act of June 15, 1917 
 (40 Stat., 212), and the naval appropria- 
 tion acts of July 1, 1918 (40 Stat., 730), and 
 July 11, 1919 (41 Stat., 149), contained the 
 
 The naval appropriation act of March 4, 1917 
 (39 Stat., 1184), and the appropriation acts 
 in previous years, under the title, "con- 
 struction and repair of vessels," contained 
 the following provisions which have since 
 been omitted: "Provided, That no part of 
 this sum shall be applied to the repair of 
 any wooden ship when the estimated cost 
 of such repairs, to be appraised by a compe- 
 tent board of naval officers, shall exceed ten 
 per centum of the estimated cost, appraised 
 in like manner, of a new ship of the same 
 size and like material : J 'rovidcd further. That 
 no part of this sum shall be applied to the 
 repair of any other ship when the estimated 
 
 776 
 
The Navy. 
 
 Pt.£. REVISED STATUTES. 
 
 Sec. 1541. 
 
 following provision, which has since been 
 omitted: "That the limitations imposed 
 by existing law relative to repairs to vessels 
 of the Navy shall not apply to the expendi- 
 ture of funds made available in this act." 
 The act of March 2, 1907 (34 Stat., 1195), 
 required the Secretary of the Navy to 
 report to Congress, at the commencement 
 of each regular session, the number of ves- 
 sels and their names upon which any re- 
 pairs or changes are proposed which in any 
 case shall amount to more than $200,000, 
 expenditures for such repairs or changes 
 to be made only after appropriations in 
 detail are pro^^.ded by Congress. By act 
 
 of March 3, 1909 (35 Stat., 769), the Secre- 
 tary was required to report to Congress, 
 at the beginning of each regular session, in 
 addition to the report required by the act 
 of March 2, 1907, a detailed statement 
 showing the amount expended from each 
 of the appropriations for the repair of every 
 ship, where such repairs exceed for any 
 one ship the sum of $200,000 in any one 
 fiscal year. By act of August 29, 1916 
 (39 Stat., 605), the statutory limit of 
 $200,000 for repairs and changes to capital 
 ships, as provided in the act of March 2, 
 1907, was changed to $300,000. 
 
 Sec. 1539. [Repairs on sails and rigging.] Not more than one thousand 
 dollars shall be expended in repairs on the sails and rigging of any vessel, until 
 the necessity and expediency of such repairs and the estimated cost thereof 
 have been ascertained and reported to the Navy Department by an examin- 
 ing board, which shall be composed of one naval officer, designated by the Secre- 
 tary of the Navy, and the master rigger and the master sail-maker of the yard 
 where such vessel may be ordered. — (21 Feb., 1861, c. 49, s. 1, v. 12, p. 147.) 
 
 See note to section 1538, Revised Statutes. 
 
 Sec. 1540. [Sale of vessels unfit to be repairedd The President may direct 
 any armed vessel of the United States to be sold when, in his opinion, such 
 vessel is so much out of repair that it will not be for the interest of the United 
 States to repair her.— (21 April, 1806, c. 47, s. 3, v. 2, p. 402.) 
 
 By act of September 7, 1916, section 6 (39 Stat., 
 730), it was provided that the President 
 may transfer to the Shipping Board such 
 vessels belonging to the Navy Department 
 
 as are suitable for commercial uses and not 
 required for naval use in time of peace. 
 See notes to sections 418 and 1541, Revised 
 Statutes. 
 
 Sec. 1541. [Sale of unserviceable vessels and materials.] The Secretary 
 of the Navy is authorized and directed to sell, at public sale, such vessels and 
 materials of the United States Navy as, in his judgment, can not be advan- 
 tageously used, repaired, or fitted out; and he shall, at the opening of each 
 session of Congress, make a full report to Congress of all vessels and materials 
 sold, the parties buying the same, and the amount realized therefrom, together 
 with such other facts as may be necessary to a full understanding of his acts. — 
 (23 Mar., 1872, c. 195, s. 2, v. 17, p. 154.) 
 
 By act of June 30, 1890 (26 Stat., 194), the 
 Secretary of the Navy was authorized to 
 sell, after advertisement, condemned naval 
 supplies, stores, and materials, either by 
 public auction or by advertising for sealed 
 proposals. 
 
 By act of August 5, 1882, section 2 (22 Stat., 
 296), the sale or exchange was prohibited 
 of old material of the Na\-y "which can 
 be profitably used by reworking or other- 
 wise in the construction or repair of ves- 
 sels, their machinery, armor, armament, 
 or equipment' '; it was required that such 
 old material which can not be profitably 
 used as aforesaid "be appraised and sold 
 at public auction after public notice and 
 advertisement shall have been given ac- 
 cording to law under such rules and regu- 
 lations and in such manner as the Secre- 
 
 tary may direct"; and it was further re- 
 quired that the Secretary of the Navy 
 annually report in detail to Congress the 
 proceeds of all such sales. The same act 
 and section required that the Secretary 
 of the Navy cause to be examined by com- 
 petent boards of officers all vessels on their 
 return from foreign stations, and all vessels 
 in the United States as often as once in 
 three years, if practicable, and strike from 
 the Navy Register and report to_ Congress 
 the name of such vessels as said board, 
 with his concurrence, shall ascertain to be 
 unfit for further service, or, if unfinished 
 in any navy yard, which can not be fin- 
 ished without disproportionate expense. 
 By act of March 3, 1883, section 5 (22 Stat., 
 599), the Secretary was required to have 
 appraised all vessels stricken from the Navy 
 
 777 
 
Sec. 1541. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Register pursuant to the act of August 5, 
 1882. and in his discretion to sell any such 
 vessel for not less than its appraised value, 
 after advertising in newspapers for sealed 
 proposals and comphnng u-ith other de- 
 tailed provisions of said act; the same act 
 prohiliitod the sale of any vessel in the 
 future in any manner other than as therein 
 provided, "unless the President of the 
 United States shall otherwise direct in 
 ^^Titing." 
 By act of August 29, 1916 (39 Stat., 605), the 
 Secretary of the Navy was authorized to 
 sell any or all of the auxiliary ships of the 
 Navy, classified as colliers, transports, 
 tenders, supply ships, special types, and 
 hospital ships which are 18 years" and over 
 in age, which he deems unsuited to pres- 
 ent needs of the Navy, and which can be 
 disposed of at an advantageous price, not 
 less than 50 per cent of their original cost. 
 Exchange of wom-out motor-propelled vehicles 
 of the Naval Establishment as part of pur- 
 chase price of new ones, was authorized by 
 act of August 29, 1916. (39 Stat., 565.) 
 President authorized to make regulations for 
 purchase, preservation, and disposition of 
 all articles, stores, and supplies for persons 
 in the Navy. (Sec. 1549, R. S.) 
 Sale of useless papers in the Navy Department, 
 on naval vessels, and at na\y yards is 
 authorized by acts of February 16, 1889 
 (25 Stat., 672); March 2, 1895 (28 Stat., 
 933); February 16, 1909, section 14 (35 
 Stat., 622); August 22, 1912 (37 Stat., 329); 
 and March 3, 1915 (38 Stat., 929). 
 Transfer of naval ordnance and ordnance mate- 
 rial to the War Department was authorized 
 by act of July 8, 1918 (40 Stat., 817). 
 For reference to other laws relating to the sale, 
 exchange, and loan of vessels or other 
 property belonging to the naval service, 
 see note to section 418, Revised Statutes. 
 Mandamus proceeding's to compel deliv- 
 ery of vessel to highest bidder. — The 
 United States, as the owner in possession of a 
 naval vessel, can not be interfered with behind 
 its back; nor can the courts compel the Secre- 
 taiy of the Navy, who has the custody of such 
 vessel, to surrender it in a mandamus proceed- 
 ing to which the United States is not and can 
 not be made a party. (Goldberg v. Daniels, 
 231 U. S., 218.) 
 
 Mandamus vail not lie at the instance of one 
 who, in response to advertisement, has made 
 the highest bid for a vessel, to compel the Secre- 
 tary of the Navy to deliver the vessel. (Gold- 
 berg V. Daniels, 231 U. S., 218.) 
 
 The discretion of the Secretary of the Navy 
 is not ended by receipt and opening of bids for 
 a condemned naval vessel, even though they 
 satisfy the conditions prescribed. Mandamus 
 will not lie to compel him to accept the highest 
 bid. (Goldberg v. Daniels, 231 U. S., 218, 
 affirming U. S. v. Meyer, 37 App. D. C, 282.) 
 
 Delivery of public property to contrac- 
 tor as part payment on contract. — Sec- 
 tions 1541 and 3618, Revised Statutes, confer 
 upon the Secretary of the Navy the only 
 authority by which he can dispose of the mate- 
 rials of the United States Navy. When in the 
 judgment of the Secretary they can be advan- 
 
 tageously used they must be used; when they 
 can not be so used they must be sold at public 
 sale and the proceeds covered into the Treasury. 
 No officer of the Navy Department had any 
 authority, therefore, to deliver to a contractor 
 the materials of the Navy to be sold by him and 
 to allow him to put the proceeds into his own 
 pocket. (Steele v. U. S., 113 U. S., 128, 133.) 
 A private sale of old material arising from the 
 breaking up of a vessel of war, made by an offi- 
 cer of the Navy Department to a contractor for 
 repairs of a war vessel _ and machinery, is in 
 violation of the provisions of section 1541, 
 Re\dsed Statutes. (Steele v. U. S., 113 U, S., 
 128.) 
 
 The allowance of the estimated value of such 
 material in the settlement of the contractor's 
 accounts is a violation of the provisions of sec- 
 tion 3618, Revised Statutes. (Steele v. U. S., 
 113 U. S., 128.) 
 
 A settlement of such accounts at the Navy 
 Department and at the Treasury, in which the 
 contractor was debited vdth the material at the 
 estimated value, does not preclude the United 
 States from showing that the estimates were 
 far below the real value, and from recovering 
 the difference between the amount allowed 
 and the real value. (Steele v. U. S., 113 U. S., 
 128.) 
 
 Delay in enforcing a claim arising out of an 
 illegal sale of the property of the United States 
 at a value far below its real worth can not be set 
 up as a bar to the recovery of its value. (Steele 
 V. U. S., 113 U. S., 128.) 
 
 An officer of the Government can not trade 
 off to a contractor, in payment of the money 
 due him on his contract, old materials belong- 
 ing to the United States, when in the judgment 
 of the officer they can not te advantageously 
 used. The delivery of such old material to a 
 contractor, with or ^vithout the authority of the 
 Navy Department, if it was intended to vest 
 in the contractor any title to the material, waa 
 without authority of law. Where the property 
 80 deli\'ered was charged to the contractor at 
 about one-fourth its actual value, the United 
 States is entitled to recover the difference be- 
 tween the amount charged and its real value. 
 The whole transaction was illegal, and the con- 
 tractor is chargeable with knowledge of the 
 fact. It was in effect a private sale of the 
 property of the United States at a grossly 
 inadequate price. The fact that the account 
 had been settled by the officers of the Na\7- 
 Department did not cure the unauthorized 
 acts. Both the disposition of the property and 
 the settlement of the account were without 
 authority of law and not binding on the Govern- 
 ment. (Steele v. U. S., 113 U. S., 128, 133.) 
 
 Exchange of vessels. — The Secretary of 
 the Na\y can not exchange a vessel belonging 
 to the Navy, which has been condemned as 
 unfit for naval purposes, for another vessel, 
 notwithstanding the exchange might be of 
 advantage to the public service. The disposi- 
 tion of such vessel is controlled by the act of 
 May 23, 1872, section 2 [now sec. 1541, R. S.]. 
 The Secretary of the Navy can only dispose of 
 vessels and materials belonging to the United 
 States and under the control of his department 
 
 778 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1543. 
 
 in manner as prescribed in said section. (14 
 Op. Atty. Gen., 369.) 
 
 For other cases, see notes to sections 161, 355, 
 and 418, Revised Statutes. 
 
 Loan of public property. — The head of 
 a department has no power to turn over Govern- 
 ment property to States or individuals, to be 
 used for any purpose not authorized by some 
 act of Congress, any more than he has power 
 to gi^'e such property away absolutely. The 
 property, real and personal, of the United 
 States is dedicated by law to the uses and pur- 
 poses of the United States, and nothing short of 
 an act of Congress can authorize its application 
 to any other uses and purposes. The question 
 is one of power, and that must come from 
 Congress and is not to be inferred from the fact 
 that what is recommended would be highly 
 beneficial to the United States. Whether the 
 proposed application of Government property 
 to State purposes is advisable or not is a ques- 
 tion for the legislative and not the executive 
 department of the Government. (20 Op. 
 Atty. Gen., 93, 96, citing Steele v. U. S., 113 
 U. S., 128.) 
 
 For other cases, see notes to sections 161, 
 355, and 418, Revised Statutes. 
 
 Diposition of vessel where bids are less 
 than appraised value. — The act of March 3, 
 1883 (22 Stat., 599), pro\ddes for the advertise- 
 ment and sale of condemned vessels of the Navy 
 and that no such vessel shall be sold for less 
 than the appraised value. Wliere the Secre- 
 tary of the Na\'y has endeavored to comply 
 with that statute, but no one is willing to pay 
 the appraised value, the case is one not speci- 
 fically covered by any statute. In the absence 
 of any such statute, the Secretary, by virtue of 
 his office and because of his general duty to 
 care for and preserve the property of the 
 Government under his control, has the right to 
 
 reject all bids submitted and to dispose of such 
 condemned vessel in such way as may seem to 
 him to be most advantageous to the Govern- 
 ment. He may, therefore, very properly 
 utilize such portion of the vessel as is of value, 
 and destroy that which remains and which ia 
 valueless. (28 Op. Atty. Gen., 470.) 
 
 It is customary to remove from condemned 
 naval vessels before sale such articles of outfit 
 and equipage as may still be serviceable to the 
 Government. This custom does not depend 
 upon any statute authorizing it, but is based 
 upon the exercise of the general official power 
 which the Secretary of the Navy has, in virtue 
 of his office, to properly care for and protect the 
 public property committed to his control and 
 to prevent unnecessary waste of Government 
 property. (28 Op. Atty. Gen., 470.) 
 
 The Secretary of the Navy may legally remove 
 the engine and boiler from a naval barge for 
 future use by the Government, since the vessel 
 has been found unfit for further service, and the 
 highest bid received for the vessel was much 
 less than the value of the engine and boiler. 
 The hull, being valueless, may be sunk or de- 
 stroyed. (28 Op. Atty. Gen., 470.) 
 
 Status of vessel stricken from, the Navy 
 Register. — Although a board to examine ves- 
 sels of the Navy, under the act of August 5, 
 1882 (22 Stat., 296, sec. 2), finds a vessel "unfit 
 for further service as a cruiser, " and her name 
 is stricken from the list of ships in the Navy 
 Register, that does not necessarily muster her 
 out of the service. A vessel condemned by a 
 board as unfit for a cruiser, but subject to the 
 usual naval routine and put to kindred uses, 
 her officers being subject to the same rules as 
 before she was condemned, remains, as to those 
 serving on her, as much a vessel of the Navy 
 as before. (Pierce v. U. S., 33 Ct. Cls., 294.) 
 
 Sec. 1542. [Commandants of navy-yards.] The President may select the 
 conunandants of the several navy-yards from officers not below the grade of 
 commander.— (2 Aug., 1861, c. 36, v. 12, p. 285. 5 July, 1862, c. 134, s. 2, 
 V. 12, p. 510.) 
 
 Military command by staff officers: See section 
 
 1488, Revised Statutes. 
 Marine officers not to command navy yards. 
 See section 1617, Revised Statutes. 
 
 Commandant must be line officer. — The 
 grade of commander exists only in the line of 
 the Navy, therefore the words, "officers not 
 below the grade of commander, " used in this 
 section, require that the commandants of the 
 several navy yards be officers of the line. (File 
 5038-20:1, Jan. 18, 1915. See note to sees. 1404 
 and 1390, R. S.) 
 
 "Navy yard" defined. — Where the Com- 
 monwealth of Virginia ceded to the United 
 States jurisdiction over certain public lands 
 forthepurposeof anavy yard, by "navy yard" 
 was meant not merely the land on which the 
 
 Government does work connected with ships 
 of the Navy, but the waters contiguous neces- 
 sary to float the vessels of the Navy while at 
 the navy yard. (Ex parte Tatem, 23 Fed. Cas., 
 No. 13759; see art. 5354, Naval Institutions, 
 1913.) 
 
 Transfer of property between navy 
 yards. — When specifically appropriated for to 
 be used at a designated navy yard, can not be 
 transferred to another without legislative au- 
 thority. (28 Op. Atty. Gen. , 511, as to floating 
 dry dock; 31 Op. Atty. Gen., 594, as to ma- 
 chinery and tools.) 
 
 Abolishing navy yards. — Whether this 
 may be done without legislative authority, 
 quaere. (31 Op. Atty. Gen., 594, 596.) 
 
 Sec. 1543. [Master workmen.] The persons employed at the several navy- 
 yards to superintend the mechanical departments, and heretofore known as 
 master mechanics, master carpenters, master joiners, master blacksmiths, 
 master boiler-makers, master sail-makers, master plumbers, master painters, 
 master calkers, master masons, master boat-builders, master spar-makers, 
 
 54641°— 22- 
 
 -50 
 
 779 
 
Sec. 1544. 
 
 PL 2. RE VISED STAT UTES. 
 
 The Navy, 
 
 master block-makers, master laborers, and the superintendents of rope-walks 
 shall be mon skilled in their several duties and appointed from civil life, and 
 shall not be appointed from the oflicers of the Navy. — (17 June, 1868, c. 61, s. 
 1, V. 15, p. 69.) 
 
 Sec. 1544. [Laborers, how selected.] Laborers shall be emploj^ed in the 
 several navy-yards by the proper officers in charge with reference to skill and 
 eihciency, and without regard to other considerations. — (23 May, 1872, c. 195, 
 s. 1, V. 17, p. 146.) 
 
 No enlisted men or seamen, not inchidinfr com- 
 missioned and warrant ofRoers, on battle- 
 ships of the Nayy, when such battleships 
 are docked or laid up at any navy yard for 
 repairs, shall be ordered or required to per- 
 form any duties except such as are or may be 
 performed bv the crew while at sea or in a 
 foreign port.' (Act Aug. 22, 1912. 37 Stat., 
 355.) 
 Moral character considered. — Taken liter- 
 ally, section 1544 might require a disregard for 
 good character or personal morals on the part of 
 an applicant for employment if his skill in his 
 trade and efficiency as a mechanic were notable 
 and undoubted. Such was not the intention 
 of Congress, and this section should be read as 
 though the word "primarily" or the words 
 "first of all" were interpolated between the 
 words ' 'reference" and "to "; or as though the 
 words "suggesting the choice of those less 
 eflBcient and skillful" had been appended after 
 the word "considerations." (27 Op. Atty. 
 Gen., 184, 189.) 
 
 Pohtical considerations. — There can be 
 no doubt that the "considerations" which 
 Congress had in mind refer to general complaints 
 which had been made by reason of the alleged 
 employment of workmen at navy yards for 
 political considerations and through the influ- 
 ence of politicians in order to secure expected 
 partisans or personal advantage. This section 
 intended to lay down, as a rule for the guidance 
 of officers at the several navy yards, the princi- 
 ple that workmen should be employed for the 
 benefit of the Government and not for any other 
 reason. (27 Op. Atty. Gen., 184, 189.) 
 
 Nature of tests to determine fitness. — 
 The Secretary of the Navy may direct by what 
 reasonable and appropriate tests fitness or com- 
 parative fitness may be ascertained, and in the 
 absence of any law, rule, or order on the sub- 
 ject, that matter would be left to the discretion 
 of the appointing power. (27 Op. Atty. Gen., 
 184.) 
 
 Persons discharged from military serv- 
 ice. — Section 1544, Revised Statutes, must be 
 construed in connection with 1754, Revised 
 Statutes, which provides that persons honora- 
 bly discharged from the military or naval serv- 
 ice by reason of disability, etc., incurred in 
 the line of duty, shall be preferred for appoint- 
 ments to civil offices where they are found to 
 possess the necessary business capacity to prop- 
 erly discharge the duties of such office. (27 
 Op^ Atty. Gen., 184.) 
 
 Regulations promulgated to give effect to 
 sections 1544 and 1754, Revised Statutes, 
 
 should provide that persons honorably dis- 
 charged from the military or naval ser^-ice by 
 reason of disaV)ility resulting from wounds or 
 sickness incurred in the line of duty, if fitted 
 physically, mentally, and morally to discharge 
 with reasonable skill and efficiency the duties 
 of the position to be filled, are entitled to be 
 selected in preference to others, although the 
 latter may possess greater skill and efficiency. 
 As between persons within this privileged class 
 relative skill and efficiency should be decisive 
 as to the right of emplo\'Tnent, and all other 
 considerations should be subordinated thereto. 
 With respect to all other persons, including 
 those honorably discharged on account of ex- 
 piration of enlistment or reasons other than 
 disability incurred in the line of duty, superior 
 fitness for the emplojTuent should be the 
 decisive consideration; but where there is no 
 appreciable difference in this respect between 
 two applicants, then an honorably discharged 
 soldier, sailor, or marine would be entitled to 
 preference in conformity with the intendment 
 of section 1755, Revised Statutes. (27 Op- 
 Atty. Gen., 184.) 
 
 Preference for employment. — "Persons 
 employed in the clerical, drafting, and inspec- 
 tion force at na\'y yards and stations discharged 
 for lack of work or insufficiency of funds shall 
 for one year thereafter be preferred for employ- 
 ment in such navy yards and stations in the 
 clerical, drafting, inspection, and messenger 
 forces." (Act Mar. 3, 1909, 35 Stat., 755.) 
 
 Classifi.ed service. — Ci\ilian' employees at 
 na\y yards, other than laborers or workmen, 
 are included within the classified ser"\dce and 
 are not exempted from competitive examina- 
 tion by the terms of section A of the Ci^il Serv- 
 ice Rules, but in so far as they come within 
 the provisions of section 3 of Rule III are sub- 
 jected to special tests of fitness to be prescribed 
 in accordance with the terms of the latter rule. 
 (27 Op. Atty. Gen., 184.) 
 
 Mandamus will lie to compel the members 
 of the Board of Labor EmploATnent at the 
 United States Navy Yard, Washington, D. C, 
 to register an applicant for examination for 
 employment as mechanic or laborer, where the 
 refusal of the board is based solely upon the citi- 
 zenship of the applicant and in this respect he 
 is eligible under Rule 5 of the Civil _ Ser\ice 
 Commission, promulgated by the President on 
 April 15, 1903, wMch modified previous regula- 
 tions of the Navy Department. (U. S. v. 
 Bo^^'yer, 25 App. D. C., 121. See note to sec. 
 417, R. S.) 
 
 780 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1545. 
 
 Sec. 1545. [Salaries; per diem compensation. Repealed.] 
 
 This section provided as follows: 
 
 "Sec. 1545. Salaries sliall not be paid to any 
 employes in anjr of the navy-yards, except 
 those who are designated in the estimates. All 
 other persons shall receive a per diem compen- 
 sation for the time during which they may be 
 actually employed."— (14 July, 1862, c. 16 4, s. 
 1, 12, p. 564.) 
 
 It was expressly repealed by act of March 
 3, 1909 (35 Stat., 755), which act made the fol- 
 lowing new provision on the same subject (35 
 Stat., 754, 755): "That hereafter the rates of 
 pay of the clerical, drafting, inspection, and 
 messenger force at navy-yards and naval sta- 
 tions and other stations and offices under the 
 Na\y Department shall be paid from lump 
 appropriations and shall be fixed by the Secre- 
 tary of the Navy on a per annum or per diem 
 basis as he may elect; that the number may be 
 increased or decreased at his option and shall be 
 distributed at the various navy- yards and naval 
 stations by the Secretary of the Navy to meet 
 the needs of the naval service * * *; that 
 the total amount expended annually for pay for 
 such clerical, drafting, inspection, and mes- 
 senger force shall not exceed the amounts 
 specifically allowed by Congress under the 
 several lump appropriations, and that the 
 Secretary of the Navy shall each year, in the 
 annual estimates, report to Congress the num- 
 ber of persons so employed, their duties, and 
 the amount paid to each. " 
 
 (See act of Aug. 29, 1916, 39 Stat., 558, as 
 to lump-sum employees. 
 
 Leaves of absence. — By act of August 29, 
 1916 (39 Stat., 617), it was provided ' 'that each 
 and every employee of the navy yards, gun 
 factories, naval stations, and arsenals of the 
 United States Government is hereby granted 
 thirty days' leave of absence each year, with- 
 out forfeiture of pay during such leave: Pro- 
 vided further, That it shall be lawful to allow pro 
 rata leave only to those ser\dng twelve consec- 
 utive months or more: And provided further, 
 That in all cases the heads of divisions shall 
 have discretion as to the time when the leave 
 can best be allowed: And provided further, 
 That not more than thirty days' leave with pay 
 shall be allowed any such employee in one 
 year: Provided further, That this provision shall 
 not be construed to deprive employees of any 
 sick leave or legal holidays to which they may 
 now be entitled under existing law. ' ' 
 
 The act of March 3, 1909 (35 Stat., 755), 
 which was modified by the above-quoted pro- 
 visions in the act of August 29, 1916, contained 
 the following with reference to per diem em- 
 ployees at na\y yards and naval stations and 
 other stations and offices under the Navy De- 
 partment: ' 'That such per diem employees may 
 hereafter, in the discretion of the Secretary of 
 the Navy, be granted leave of absence not to 
 exceed fifteen days in any one year, which 
 leave may, in exceptional and meritorious 
 cases, where such an employee is ill, be ex- 
 tended, in the discretion of the Secretary of the 
 Navy, not to exceed fifteen days additional in 
 anyone year." 
 
 "All officers and employees of the United 
 States and of the District of Columbia who shall 
 be members of the National Guard shall be en- 
 
 titled to leave of absence from their respective 
 duties, without loss of pay, time or efficiency 
 rating, on all days diu-ing which they shall be 
 engaged in field or coast-defense training or- 
 dered or authorized under the provisions of 
 this Act." (Act June 3, 1916, sec. 80, 39 Stat., 
 203.) 
 
 The naval appropriation act of March 4, 1913 
 (37 Stat., 893), provided that "employees 
 while taking their leaves of absence shall not 
 receive compensation for services rendered 
 during the period of such leave of absence in 
 addition to leave pay. " 
 
 The act of August 29, 1916 (39 Stat., 557), 
 provided that ' 'hereafter any civilian employee 
 of the Navy Department who is a citizen of the 
 United States and employed at any station 
 outside the continental limits of the United 
 States may, in the discretion of the Secretary 
 of the Navy, after at least two years' contin- 
 uous, faithful, and satisfactory service abroad, 
 and subject to the interests of the public service, 
 be granted accrued leave of absence, with pay, 
 for each year of service, and if an employee 
 should elect to postpone the taking of any or all 
 of the leave to which he may be entitled in piu-- 
 suance hereof such leave may be allowed to 
 accumulate for a period of not exceeding four 
 years, the rate of pay for accrued leave to be 
 the rate obtaining at the time the leave is 
 granted. " 
 
 Holidays. — "The employees of the Navy 
 Yard, Government Printing Office, Bureau of 
 Printing and Engraving, and all other per diem 
 employees of the Government on duty at Wash- 
 ington, or elsewhere in the United States, shall 
 be allowed the following holidays, to-wit: The 
 first day of January, the twenty-second day of 
 February, the fourth day of July, the twenty- 
 fifth day of December, and such days as may 
 be designated by the President as days for 
 national thanksgi-ving, and shall receive the 
 same pay as on other days. " (Res. Jan. 6, 1885, 
 23 Stat., 516. See 21 Comp. Dec, 337, noted 
 below under "Pay at navy yards for work on 
 holidays.") 
 
 "All per diem employees of the Government, 
 on duty at Washington or elsewhere in the Unit- 
 ed States, shall be allowed the day of each year, 
 which is celebrated as 'Memorial' or 'Decora- 
 tion Day ' and the fourth of July of each year, as 
 holiday, and shall receiv-e the same pay as on 
 other days." (Res. Feb. 23, 1887, 24 Stat., 
 644.) 
 
 "The first Monday of September in each 
 year, being the day celebrated and known as 
 Labor's Holiday, is hereby made a legal public 
 holiday, to all intents and purposes, in the 
 same manner as Christmas, the first day of 
 January, the twenty-second day of February, 
 the thirtieth day of May, and the fourth day 
 of July are now made by law public holidays." 
 (Act June 28, 1894, 28 Stat., 96.) 
 
 Every Saturday after 12 o'clock noon is a 
 holiday in the District of Columbia under the 
 foUbwing provision of the District of Columbia 
 Code, section 1389 (act Mar. 3, 1901, 31 Stat., 
 1404), as amended by act of June 30, 1902 (32 
 Stat., 520): "The following days in each year, 
 namely, the first day of January, commonly 
 
 781 
 
Sec. 1545. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 called New Year's Day; the twenty-second day 
 of February, known as Washington's Birthday; 
 tlie Fourth of July- the thirtieth day of May, 
 commonly called Decoration Day; the first 
 Monday in September, known as Labor's Holi- 
 day; the twenty-fifth day of December, com- 
 monly called Christmas Day; every Saturday, 
 after twelve o'clock noon; any day appointed 
 or recommended by the President of the United 
 States as a day of pul)lic fasting or Thanks- 
 giving, and the day of the inauguration of the 
 President, in every fourth year, shall be holi- 
 days in the District for all purposes." 
 
 Holidays falling on Sunday are observed on 
 the following day in the District of Columbia 
 under section 1389 of the Code (cited above), 
 which contains the following clause: "WTaen- 
 ever any day set apart as a legal holiday shall 
 fall on Sunday, then and in such case the next 
 succeeding day shall be a holiday * * *• " 
 The Naw Regulations, article 1289, after pro- 
 viding that January 1, February 22, May 30, 
 July 4, the first Monday in Septeml)er, Decem- 
 ber 25, "and such other days as may be desig- 
 nated by the President (including the day for 
 National Thanksgiving) shall be regarded as 
 holidays on board ships of the Navy and at 
 naval stations," further pro\-ides that "when- 
 ever any of the above-designated dates falls on 
 Sunday, the following Monday shall be observ- 
 ed as a holiday." General provision to the 
 same effect with reference to employees of the 
 Federal Government was made by Executive 
 order of May 22, 1909. 
 
 Civilian employees traveling from Unit- 
 ed States to duty in insular possessions 
 and return. — "The Secretary of the Navy, in 
 his discretion, is authorized to pay all civilian 
 employees appointed for duty in the PhUippine, 
 Hawaiian, and Samoan islands, the island of 
 Guam, and the island of Porto Rico, from the 
 date of their sailing from the United States 
 until they report for duty to the officer under 
 whom they are to serve, and while returning to 
 the United States by the most direct route and 
 with due expedition, a per diem compensation 
 corresponding to their pay while actually em- 
 ployed ; and in cases where the appointee is not 
 to fill an existing vacancy his pay while travel- 
 ing may be charged to the annual appropriation 
 of the bureau concerned." (Act July 1, 1902, 
 32 Stat., 663.) 
 
 Pay at navy yards for work on holi- 
 days. — \\Tiere employees of the Navy Depart- 
 ment are required to perform labor in the 
 District of Columbia on Saturday afternoon, 
 which is a legal holiday in the District of 
 Columbia for all purposes, they are entitled to 
 be paid therefor at the ordinary rate of pay 
 under Revised Statutes, section 1545. (Adams 
 ^. U. S., 42Ct. Cls., 192.) 
 
 The work in a navy yard is under the control 
 of the Secretary of the Navy, and where he 
 directs work to be performed by per diem em- 
 ployees on holidays, a regulation fixing pay 
 operates as a contract if it does not contravene 
 some law. (Adams r. U. S., 42 Ct. Cls., 192.) 
 
 An order issued by the Secretary of the NaVy, 
 requiring employees to render service on Satm-- 
 day afternoons with no other compensation than 
 such as shall be due by reason of the extension 
 
 of hours, is presumed to be issued with the 
 approval of the President under section 1547, 
 Revised Statutes. (Adams v. U. S., 42 Ct. 
 Cls., 192.) 
 
 \\'here a statute gives to certain employees 
 pay without work on holidays, and they are re- 
 (juired by the head of the department to render 
 service on holidays, he may make provision by 
 regulation or contract for extra pay for services 
 80 performed. (Adams v. V. S., 42 Ct. Cls., 
 192.) 
 
 Exemption -from work on holidays does not 
 carry with it the right to pay. If Congress 
 makes no provision for payment to per diem 
 employees on holidays, their compensation is 
 limited to the time thev are actually employed. 
 (Adams v. U. S., 42 Ct. Cls., 192.) 
 
 Actual service is the basis for pay, and where 
 there is no law giving pay without work, the per 
 diem employee is not entitled to be paid. 
 (Adams V. U. S., 42 Ct. Cls., 192.) 
 
 Per diem employees of the Government at 
 navy yards and stations which are not in the 
 the United States are entitled to be paid on 
 holidays as provided in article 382, Naval In- 
 structions, as amended July 6, 1914. _ By sec- 
 tion 1545, Revised Statutes, per diem em- 
 ployees in navy yards were allowed compensa- 
 tion only for time actually employed, but this 
 statute was repealed by the act of March 3, 
 1909 (35 Stat., 7.53, 755), and there is no existing 
 law which said article of the Naval Instructions 
 contravenes (21 Comp. Dec, 337). 
 
 Hawaii is in the United States within the 
 meaning of the joint resolution of January 6, 
 1885 (23 Stat. 516), and its provisions as to pay 
 for certain holidays are applicable to per diem 
 employees at navy yards within that territory 
 (21 Comp. Dec, 337). 
 
 Suspension of work for part of day 
 under Executive order.— On April 6, 1899, 
 the Washington navy yard being closed at noon 
 pursuant to an Executive order, in connection 
 with ceremonies attending the interment of the 
 bodies of soldiers and sailors whose lives were 
 lost in the War with Spain, the per diem em- 
 ployees of the yard should receive compensa- 
 tion for the entire day. Section 1545, Revised 
 Statutes, does not restrict the employees under 
 such circumstances to compensation for the 
 time they were actually engaged in doing work. 
 The employees did not cease work on their ovra 
 motion, nor were they discharged from the 
 Government service for the remaining part of 
 the day. They had severally begun a day's 
 work under a contract with the Government, 
 and had continued to work until the authori- 
 ties of the shop closed the navy yard, shut up 
 its workshops, and arbitrarily required them 
 to stop. They were still actually in the em- 
 plovTnent of the Government, though instead 
 of laboring in the navy yard they vvere en- 
 gaged, by direction of the President, in doing 
 honor to the heroes who gave their lives for the 
 country in a foreign war. \Miile the statute 
 of the United States provides that eight hours 
 shall constitute a day 's_ work for all laborers, 
 workmen, and mech^ajiics who may be em- 
 ployed by or on behalf of the Government of 
 the United States, there is no rule of law 
 which exempts the Government from the same 
 
 782 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1546. 
 
 Government. The suspension of such an em- 
 ployee by the commandant is in effect his dis- 
 charge; and the fact that, after his suspension, 
 a board is appointed to investigate charges 
 against him is no recognition of his status as an 
 employee, and gives him no right to compen- 
 sation, nor to a recovery of sums expended in 
 traveling to attend before the board. (Mur- 
 phy V. V. S., 79 Fed. Rep., 255. For other 
 cases, see note to sec. 416, R. S.). 
 
 obligation to its employees as that which rests 
 upon a private individual. (22 Op. Atty. 
 Gen., 472). 
 
 Employee suspended by order of com- 
 mandant. — One who is employed at a navy 
 yard at a per diem compensation is not entitled 
 to compensation except for the_ time during 
 which he actually renders services; and the 
 fact that, after being suspended by the com- 
 mandant, he holds himself ready to perform 
 such services, gives him no claim against the 
 
 Sec. 1546. [Requiring contributions for political purposes.] No officer or 
 employe of the Government shall require or request any working man in any 
 navy-yard to contribute or pay any money for political purposes, nor shall any 
 working man be removed or discharged for political opinion; and any officer or 
 employe of the Government who shall offend against the provisions of this sec- 
 tion shall be dismissed from the service of the United States. — (2 Mar., 1867, c. 
 172, s. 3, V. 14, p. 492.) 
 
 By act of June 30, 1876 (19 Stat., 69), it was 
 provided that ' 'no increase of the force at 
 any navy yard shall be made at any time 
 within sixty days next before any election 
 to take place for President of the United 
 States, or members of Congress, except when 
 the Secretary of the Navy shall certify that 
 the needs of the public service make such 
 increase necessary at that time which cer- 
 tificate shall be immediately published 
 when made. " 
 
 Civil Service Commission is to prepare rules on 
 the subject of political contributions and 
 services by persons in the public service, 
 and preventing the coercion of any person 's 
 political action bv persons inthepublicserv- 
 ice. (Act.Ian. 16, 1883, sec. 2, 22 Stat. , 403.) 
 
 Detailed records of political contributions re- 
 quired to be kept and filed, etc., bv politi- 
 cal committees. (Act June 25, 1910, 36 
 Stat., 822, as amended by act Aug. 19, 
 1911, 37 Stat., 25.) 
 
 Punishment of persons in the United States 
 service for directly or indirectly soliciting 
 or receiving political contributions from 
 ofBcers or employees of the United States is 
 provided for by United States criminal 
 code, act of March 4, 1909, sections 118, 122 
 (35 Stat., 1110). 
 
 Punishment of any person for soliciting in any 
 manner whatever or receiving any political 
 contribution in any room or building 
 occupied in the discharge of ofhcial duties 
 by any employee of the United States, or 
 in any navy yard, fort, or arsenal, is pro- 
 vided for by United States criminal code, 
 act of March 4, 1909, sections 119, 122 (35 
 Stat., 1110). 
 
 Punishment of any officer or employee of the 
 United States for discharging, promoting, 
 or degrading, or changing the official rank 
 or compensation of any other officer or em- 
 ployee, or promising or threatening to do so, 
 for giving or withholding any political con- 
 tribution, is provided for by United States 
 criminal code, act of March 4, 1909, sections 
 120, 122 (35 Stat., 1110). 
 
 Punishment of any person in the service of the 
 United States for directly or indirectly giv- 
 
 ing any political contribution to any other 
 person in the United States service, is pro- 
 vided for by United States criminal code, 
 act of March 4, 1909, sections 121, 122 (35 
 Stat., 1110). 
 
 Purpose of section. — The evident purpose 
 of Congress in all this class of enactment has 
 been to promote efficiency and integrity in the 
 discharge of official duties, and to maintain 
 proper discipline in the public service. Clear- 
 ly such a purpose is within the just scope of 
 legislative power. If contributions from those 
 in public employment may be solicited by 
 others in official authority, it is easy to see that 
 what begins as a request may end as a demand, 
 and that a failure to meet the demand may be 
 treated by those having the power of removal 
 as a breach of some supposed duty gi'o'nang out 
 of the political relations of the party. The law 
 contemplates no restrictions upon either giving 
 or receiving, except in so far as may be neces- 
 sary to protect in some degree those in the pub- 
 lic service against exactions through fear of 
 personal loss. This purpose of the restriction 
 and the principle on which it rests are rnost 
 distinctly manifested in section 1546, Re\'ised 
 Statutes. If there were no other reasons for 
 legislation of this character than such as relate 
 to the protection of those in the public service 
 against unjust exactions, its constitutionality 
 would be clear. But there are other reasons 
 equally good. If persons in public employ 
 may be called on by those in authority to con- 
 tribute from their personal income to the ex- 
 penses of political campaigns, and a refusal may 
 lead to putting good men out of the service, 
 liberal payments may be made the ground for 
 keeping poor ones in. Also, if part of the com- 
 pensation received for public services must be 
 contributed for political purposes, it is easy to 
 see that an increase of compensation may be 
 required to provide the means to make the con- 
 tribution, and that in this way the Government 
 itself may be made to furnish indirectly the 
 money to defray the expenses of keeping the 
 political party in power that happens to have 
 for the time "being the control of the public 
 patronage. (Ex parte Curtis, 106 U. S., 371.) 
 
 783 
 
CHAPTER SEVEN. 
 
 GENERAL PROVISIONS RELATING TO THE NAVY. 
 
 Sec. 
 
 1547. Regulations. 
 
 1548. Copy to be furnished to officers. 
 
 1549. Regulations of supplies. 
 
 1550. Appointment of persons to disburse 
 
 money on foreign stations. 
 
 Sec. 
 
 1551. Insane of the Navy. 
 
 1552. Coal depots. 
 
 1553. Enticing persons to desert. 
 
 1554. Captured flags. 
 
 1555. Preservation of, in some public place. 
 
 Sec. 1547. [Regulations.] The orders, regulations, and instructions 
 issued by the Secretary of the Navy prior to July 14, 1862, with such altera- 
 tions as he may since have adopted, with the approval of the President, shall 
 be recognized as the regulations of the Navy, subject to alterations adopted 
 in the same manner. — (14 July, 1862, c. 164, s. 5, v. 12, p. 565.) 
 
 See note to section. 161, Revised Stat- 
 utes, for collection of decisions on the subject 
 of executive regulations. 
 
 Valid regulations have the force of 
 law. — It is a well-settled rule of judicial con- 
 struction that the regulations issued by the 
 Secretary of the Na\y, in conformity with 
 section 1547 of the Revised Statutes, are vaHd 
 and have the force of law when they are not 
 inconsistent with the statute under which they 
 are issued by the Secretary. (25 Op. Atty. 
 Gen., 270, 274. (See below, "Proceedings of 
 courts-martial.") 
 
 Must be consistent with law. — "The 
 authority of the Secretary to issue orders, regu- 
 lations and instructions, with the approval of 
 the President, in reference to matters connected 
 with the naval establishment, is subject to the 
 condition, necessarily implied, that they must 
 be consistent with the statutes which have been 
 enacted by Congress in reference to the Navy. 
 He may, with the approval of the President, 
 establish regulations in execution of, or supple- 
 mental to, but not in conflict with, the statutes 
 defining his powers or conferring rights upon 
 others. The contrary has never been held by 
 this court. " (U. S. v. Symonds, 120 U. S., 46, 
 49; Glavey v. U. S., 182 U. S., 595, 605.) 
 
 The orders, regulations, and instructions 
 issued by the Secretary of the Navy under 
 Revised Statutes, section 1547, must be in 
 accordance with law and upon a subject which 
 the law has not determined, adjusted, or de- 
 fined. A regulation of an executive depart- 
 ment must conform to the law, if a law exists 
 upon the subject of the regulation. The Secre- 
 tary of the Navy can not change the character 
 of an officer's ser-vice from sea service to shore 
 service by simply ordering that it be so regard- 
 ed; sea service is defined ])y section 1571, Re- 
 vised Statutes, and the final construction of the 
 statute is vested in the judiciary. (Symonds 
 V. U. S., 21 Ct. Cls., 148; affirmed, 120 U. S., 46.) 
 
 For other cases, see specific rulings noted 
 below. 
 
 Detachment of officers from Marine 
 Headquarters. — Article 4141 of the Navy 
 Regulations, approved May 14, 1913, is in con- 
 travention of existing statutes and therefore in- 
 valid, in that it permits officers of the staff 
 departments of the Marine Corps to be detached 
 permanently from the headquarters of the 
 commandant, and gives the power to the com- 
 mandant of the corps to impose duties upon 
 these staff officers inconsistent with their staff 
 functions. (30 Op. Atty. Gen., 234.) 
 
 Regulations of a legislative character. — 
 
 Prior to the act of July 14, 1862 (now section 
 1547, R. S.), it was held by the Attorney 
 General that a code of regulations issued by the 
 President, February 15, 1853, for the govern- 
 ment of the naval ser\dce, entitled "System of 
 Orders and Instructions," was without legal 
 validity; that said system was neither more nor 
 less than rules for the government and regu- 
 lation of the naval forces, "that precise tiling 
 which the Constitution empowers Congress to 
 make;" and that, even if it be conceded, 
 "what might well be questioned," that Con- 
 gress can delegate to others the power to make 
 a law, said system could not lay claim to 
 legality by virtue of any power delegated to 
 the President by Congress, as there was no act 
 of Congress authorizing same to be issued or 
 thereafter adopting same. (6 Op. Atty. Gen., 
 10, reviewing liistory of Navy Regulations.) 
 
 It is not intended to say that the President, 
 as Commander in Chief of the land and naval 
 forces, has not some power to issue directions 
 and orders; so also has a commodore in command 
 of a squadron, or a general in the field. But 
 such orders and directions, when issued by the 
 President, must be within the range of purely 
 executive or administrative action. Cases may 
 be supposed in which it is not easy to draw the 
 line between wliat is legislative and what is 
 executive or administrative; and so it is in re- 
 gard to every such question of the distinction 
 of powers. (6 Op. Atty. Gen., 10.) 
 
 784 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1547. 
 
 The Army Regulationg derive their force 
 from the power of the President as Commander 
 in Chief, and are binding upon all within the 
 sphere of his legal and constitutional authority. 
 (Kurtz V. Moffitt, 115 U. S., 487, 503.) 
 
 The act of 1862 (now sec. 1547, R. S.), was 
 only intended to recognize the power of the 
 President to alter regulations which he was 
 originally competent to adopt and promulgate 
 without express authority of Congress; no just 
 rule of construction would authorize gi\'ing to 
 this provision the force and effect of a general 
 delegation of legislative authority to the ex- 
 ecutive at his pleasure to pass upon and regu- 
 late subjects which were in their own nature 
 exclusively subjects of legislative action and 
 cognizance, or which Congress had previously 
 fixed by law and which the regulations thereby 
 recognized had not undertaken to modify or 
 alter. (13 Op. Atty. Gen., 10.) 
 
 Regulations specifically adopted by Con- 
 gress can not be altered by President. — 
 Congress, by acts of August 5, 1854, chapter 
 268, section 4, and March 3, 1859, chapter 76, 
 section 2, specifically adopted certain orders of 
 the Secretary of the Navy, dated August 31, 
 1846, May 27, 1847, and January 13, 1857, upon 
 relative rank ; this fact gave to such orders the 
 character of legislative acts; they thereby 
 ceased to be orders or regulations of the execu- 
 tive and were incorporated into the statute 
 law as laws of Congress. Accordingly, the act 
 of July 14, 1862, section 5 (now sec. 1547, R. S.), 
 which authorized the Secretary of the Navy, 
 with the approval of the President, to adopt 
 alterations in "orders, regulations, and in- 
 structions" theretofore issued by the Secretary 
 of the Navy, can not properly be treated as 
 comprehending or embracing the above-men- 
 tioned orders, which had been previously recog- 
 nized and established by legislation as regu- 
 lations of Congress on the subject of the relative 
 rank of staff officers of the Navy. (13 Op. Atty. 
 Gen., 10, overruling 10 Op. Atty. Gen., 413, 
 noted below.) 
 
 The executive has no power, without express 
 authority of law, to fix the relative rank of the 
 line and staff officers of the Navy. However, 
 the fifth section of the act of July 14, 1862, re- 
 cognizing the orders of the Secretary of the 
 Navy theretofore issued as regulations of the 
 Navy Department and authorizing alterations 
 thereof, confers onthe Secretary of the Navy, 
 with the approbation of the President, power 
 to alter any orders issued by him before the 
 passage of the act fixing the relative rank of the 
 line and staff officers of the Navy. If, there- 
 fore, the head of the Navy Department, as the 
 Minister of the President, has at any former 
 period, by any order or regulation, fixed the 
 relative rank of the line and staff officers of the 
 Navy, it is competent for him, with the appro- 
 bation of the President, under authority of the 
 provision cited, to make such alterations in 
 such order or regulation as in his judgment the 
 good of the service may require. (10 Op. 
 Atty. Gen., 413; overruled by 13 Op. Atty. 
 Gen., 10, noted above.) 
 
 Certain regulations issued by the Secretary of 
 the Navy, with the approbation of the Presi- 
 dent, on 13 March, 1863, establishing and in- 
 
 creasing the relative rank of the staff officers 
 of the Navy, and modifying previous orders 
 which had been specifically adopted by Con- 
 gress, held not founded upon valid authority of 
 law. (13 Op. Atty. Gen., 10.) 
 
 Precedence of line and staff officers. — 
 Article 21 of the Navy Regulations, 1893 (art. 
 1009, Navy Regs., 1913), fixing the order in 
 which officers of the line and different staff 
 corps shall take precedence when of the same 
 date, is \'iithin the authority conferred upon the 
 Secretary of the Navy, by Revised Statutes, 
 section 1547. (21 Op. Atty. Gen., 46.) 
 
 Rank of aids to rear admirals. — Section 
 1547, Revised Statutes, provides that the Sec- 
 retary of the Navy, -w-ith the approval of the 
 President, can make necessary regulations for 
 the Navy, and when the law provides for ad- 
 ditional pay of aids to admirals it would seem 
 both proper and necessary for the regulations 
 to provide under what circumstances such aids 
 should be appointed and what should be their 
 rank. There is no other branch of the Govern- 
 ment service interested in the rank of officers 
 to be detailed for such service, and there is no 
 law prohibiting the Secretary of the Navy, 
 with the approval of the President, from de- 
 termining that matter. When such regula- 
 tions are promulgated, they have the force of 
 law. (Jones v. U. S., 49 Ct. Cls., 16; compare 
 Knox V. U. S., 52 Ct. Cls., 22, 28.) 
 
 Command of hospital ships. — The Navy 
 Regulations, edition of 1909, article 37,_ para- 
 graph 2, approved by the President, provide for 
 the command of hospital ships by a medical 
 officer not below the grade of surgeon. The 
 law provides that such regulations, when so 
 approved, shall be the regulations of the Navy, 
 and they have the force of law when not in- 
 consistent therewith. The orders _ preceding 
 this regulation and the regulation itself were 
 issued and adopted in accordance with law. 
 The regulation referred to may at any time be 
 changed or modified by the President or by the 
 Secretary of the Navy with the approval of the 
 President. (27 Op. Atty. Gen., 571.) 
 
 Proceedings of covirts-martial. — The Or- 
 ders, Regulations, and Instructions for the 
 Administration of Law and Justice in the 
 United States Navy, issued by the Secretary 
 of the Navy under authority of the President 
 in 1870, were recognized and given the sanc- 
 tion of law by section 1547 of the Revised Sta- 
 tutes, passed since the adoption of such regula- 
 tions. Accordingly, section 127 of the said 
 regulations, providing that "when the offense 
 is a disorder or neglect not specially provided 
 for, it should be charged as 'scandalous conduct 
 tending to the destruction of good morals, '"is 
 a valid regulation conferring upon a court- 
 martial jurisdiction over a charge of scanda- 
 lous conduct tending to the destruction of 
 good morals, and it is not important to inquire 
 in a specific case whether such charge should 
 be considered as made under the concluding 
 words of the first clause of article 8, section 
 1624, Revised Statutes, punishing "profane 
 swearing, falsehood, drunkenness, gambling, 
 theft, or any other scandalous conduct tending 
 to the destruction of good morals, " or under 
 article 22, section 16ii4, Revised Statutes, 
 
 785 
 
Sec. 1547. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 punishing "all offenses committed by persons 
 belonging to the Navy ^vhi^•h are not specified 
 in the foregoing articles, " for in either \iew it 
 Bhould, under the regulations of 1870, recog- 
 nized and sanctioned by Congress, be charged 
 as ' 'scandalous c-onduct tending to the destruc- 
 tion of good morals. " (Smith v. \\Tiitney, 116 
 U.S., 167.) 
 
 "Regulations for the administration of law 
 and justice, " issued April 15, 1870, which pro- 
 \'ided for revision by naval courts-martial of 
 their proceedings and sentence when directed 
 by the convening authority, were authorized 
 by section 1547, Revised Statutes, and have the 
 force of law. (Ex parte Reed, 100 U. S., 13.) 
 
 Congress in estaljlishing courts-martial pro- 
 vided that the Secretary of the Navy is author- 
 ized to establish ' ' regulations of the Navj% ' ' with 
 the approval of the President (12 Stat., 565; 
 R. S., sec. 1547). Pursuant to this authority, 
 "Regulations for the Administration of La,w 
 and Justice" were issued on the 15th of April, 
 1870. It has been held that such regulations 
 have the force of law. (Gratiot v. U. S., 4 
 How., 80; Ex parte Reed, 100 U. S., 22.) Thus 
 the legislative power is not exercised in detail, 
 but a court is established in pursuance of the 
 power conferred upon Congress and the Secre- 
 tary of the Navy is clothed with the power of 
 making regulations to control the court. This 
 is one of the many instances in which it is 
 essential for the operations of a great govern- 
 ment that matters of detail be intrusted by the 
 iegislati\'e department to executive officers 
 for the piu-pose of giAing effect to legislative 
 acts. (21 Op. Atty. Gen., 430, 441.) 
 
 Manual for the Govemtnent of Naval 
 Prisons. — Articles 81 of the Manual for the 
 government of Naval Prisons, issued by the 
 Judge Advocate General of the Navy with the 
 approval of the Secretary of the Navy, pur- 
 suant to authority contained in article 901, 
 Navy Regulations, 1913, and article 604, Naval 
 Instructions, 1913, is a regulation authorized by 
 section 1547, Revised Statutes. (24 Comp. 
 Dec, 740, 757. Compare 25 Op. Atty. Gen., 
 270, 275, noted below.) 
 
 Checkages of pay for lost property, — 
 See note to section 1549, Re\'ised Statutes. 
 
 Refund of enlistment bounty on dis- 
 charge. — Where an act of Congress "author- 
 ized " the Secretary of the Navy to furnish as a 
 bounty to apprentices enlisting in the Navy 
 when first received on board of a training ship 
 an outfit of clothing not to exceed in value the 
 sum of $45 (act Mar. 1, 1889, 25 Stat., 781), the 
 language, although permissive in form, is to be 
 construed as imposing upon the Secretary of 
 the Na\y an imperative oliligation and not 
 merely discretionary power. Congress un- 
 doubtedly did not intend that the Secretary 
 of the Na^y should have such discretionary 
 power with respect to furnishing the bounty 
 authorized by the act as would enable him to 
 furnish it in one case and in another case 
 decline to furnish it. Neither does the law 
 contain any language from which the infer- 
 ence could be drawn that apprentices dis- 
 charged within one year after date of enlist- 
 ment shall refund any part of the clothing 
 outfit previously furnished them as a bounty. 
 
 Accordingly, held that r^ulationa issued by 
 the Secretary of the Navy, July 1, 1901, are 
 inconsistent with law and void in so far as they 
 require a refund of the bounty or any portion 
 of it in case an apprentice is discharged within 
 one year after his enlistment for disability not 
 incm-red in the line of duty. (25 Op. Atty. 
 Gen., 270; see also 11 Comp. Dec, 193. Note.— 
 Refund of enlistment bounty in case of dis- 
 charge was afterwards specifically provided 
 for by statute; see act June 29, 1906, 34 Stat., 
 556; and Mar. 2, 1907, 34 Stat., 1176.) 
 
 Duties of disbursing ofl3.cers. — Regula- 
 tions made by the Commissioners of the Na\y 
 in 1817, with the consent of the Secretary of 
 the Navy and approved by the President of 
 the United States, were binding upon pursers 
 in the Navy, who were thereby required to 
 make disbursements in accordance therewith, 
 without other compensation than their regular 
 pay as purser, unless when the disbursements 
 were made there was an agreement or under- 
 standing between them and the Secretary of 
 the Navy or other officer competent to make 
 such an agreement that they should ^ecei^-e 
 compensation therefor in addition to their 
 regular and fixed pay as purser. (U. S. v. 
 Fitzgerald, 25 Fed. Cas. No. 15107; see also 
 notes to sees. 161, 285, and 419, R. S.) 
 
 Disposition of effects of deceased per- 
 sons.— The Navy Regulations on the subject 
 of payments to administrators and under 
 wills are to be construed as binding only upon 
 the officers and seamen of the Navy; they are 
 not applicable to nor binding upon the account- 
 ing officers of the Treasury Department in the 
 settlement of na^-al accounts, and it was not 
 intended that they should control those offi- 
 cers. (16 Op. Atty. Gen., 494, 498.) 
 
 The character of all the regulations in ques- 
 tion indicates that they were not intended to 
 affect any persons except those subject to the 
 orders of the Secretary of the Navy. Unless 
 they are thus construed, it would seem that 
 a power to legislate was assiuned independently 
 of the Federal and State law. For the pur- 
 pose of protecting the rights of heirs and rela- 
 tives of deceased seamen, the regulations of 
 the Navy may well require that if the disburs- 
 ing officer pays the money to an administrator 
 he shall estal^lish facts additional to those 
 which he would ordinarilv be required to do. 
 (16 Op. Atty. Gen., 494, 496.) 
 
 See below, ""^Ti ether regulations are bind- 
 ing upon accounting officers of the Treasury." 
 
 "Whether regulations are binding upon 
 accounting officers of the Treasury. — The 
 Navy Regulations are published by the Secre- 
 tary of the Navy "for the government of all 
 persons attached to the naval service." This 
 statement accurately indicates the objects and 
 the limits of the naval regulations, which are 
 for the government of persons attached to the 
 naval 8er\dce in the conduct of their several 
 duties, and the -sdolation of which would sub- 
 ject such persons to official rebuke. It would 
 be going too far to hold that because the Sec- 
 retary of the Navy, with the approval of the 
 President, has a quasi legislative power in pre- 
 scribing the mode in which the subordinates of 
 the naval department should perform their 
 
 786 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1549. 
 
 duties, and the rules by which they should be 
 governed, he could also prescribe a rule which 
 would control the action of the accounting offi- 
 cers upon the same subject. (16 Op. Atty. 
 Gen., 494, 495.) 
 
 While in general terms it is often said that the 
 Army and Navy regulations have the force and 
 effect of law, this can only be properly so where 
 we are dealixig with a person or suljject matter 
 over which the Secretary has official control 
 (citing Gratiot v. U. S., 4 How., 117). Nor can 
 it be said that the fact that Congress has adopted 
 the regulations gives them the force of law in 
 the general sense. It gives them the force of 
 law only so far as they assume to control those 
 to whom the regulations were applicable. 
 Were it otherwise, it would be necessary to 
 hold that, inasmuch as the Secretary with the 
 authority of the President has a right to alter 
 these regulations. Congress has parted with its 
 legislative power so far as the Na\y is concerned, 
 and has conferred it upon the Secretary of the 
 Na\^. That which it has conferred upon the 
 Secretary of the Navy is not any portion of its 
 general power of legislation, but only the right 
 to make appropriate regulations for the per- 
 formance of their duties by those whom Con- 
 gress has placed under his official control. (16 
 Op. Atty. Gen., 494, 497.) 
 
 The decisions of the Comptroller of the Treas- 
 ury, declaring invalid article 3991, Na\-y Regu- 
 lations 1913, limiting the responsibility of pay 
 officers of shore stations for errors in pay rolls, 
 are not conclusive upon the Navy Depart- 
 ment; said regulation is valid, at least to the 
 extent of protecting a pay officer who, in good 
 faith, pays items that on the face of the roll are 
 apparently legal expenditures. The regula- 
 tion in question, as a valid order of the head of 
 an executive department, has binding force 
 upon the accounting officers of the Govern- 
 ment. (30 Op. Atty. Gen., 376.) 
 
 See above, "Disposition of effects of de- 
 ceased persons." 
 
 Regiilations not approved by the Pres- 
 ident. — Regulations issued by the Secretary 
 of the Navy may safely be held invalid where 
 it does not appear that they ever received the 
 approval of the President, as required by sec- 
 tion 1.547, Revised Statutes, for ail regulations 
 issued since July 14, 1862. Such approval, in 
 terms prescribed by the law, is manifestly es- 
 sential to give validity to regulations as having 
 the force of law. (25 Op. Atty. Gen., 270, 275; 
 but see sec. 161, R. S., and note thereto; and 
 compare 24 Comp. Dec, 740,757, noted above.) 
 
 Under Revised Statutes, section 1547, the 
 orders, regulations, and instructions issued by 
 the Secretary of the Navy are presumed to be 
 issued with the approval of the President, and 
 
 this presumption extends to an order requiring 
 employees to render service on Satmday after- 
 noons with no other compensation than such 
 as shall be due by reason of the extension of the 
 hoiu-s of service. (Adams t'. U. S., 42 Ct. Cls., 
 192.) 
 
 Regulations enter into contract of navy- 
 yard employees. — The work in navy yards 
 and naval stations is under the control and 
 direction of the head of the Navy Department, 
 and the employment and pay of per diem em- 
 ployees at such yards and stations, paid from 
 lump-sum appropriations, are also under the 
 direction and control of the head of the de- 
 partment. Under these circumstances^ regu- 
 lations are important and necessary instru- 
 ments in the administration of the duties in- 
 volved in these cases, and the regulation often 
 operates as a contract or enters into the con- 
 tracts of employment. This is the effect of 
 such regulations where they do not contravene 
 some law. (21 Comp. Dec, 337, holding that 
 per diem employees of the Government at 
 navy yards and stations which are not in the 
 United States are entitled to be paid on holi- 
 days as provided by Na\'y Regulations.) 
 
 Effect of regulations upon interpre- 
 tation of later statutes. — The naval regu- 
 lations are recognized by Congress in section 
 1547, Revised Statutes, and those in force when 
 a particular statute was passed may properly 
 be considered in construing it, because the pre- 
 sumption is that Congress enacted the law with 
 the knowledge of and in the light of such regu- 
 lations. (19 Op. Atty. Gen., 589, 591.) 
 
 Regiilations superseded by subsequent 
 statutes. — The Navy Regulations of 1818, 
 prescribing the official duties of pursers and 
 Na\-y agents, were repealed by the act of Au- 
 gust 26, 1842 (5 Stat., 535), requiring purchases 
 of supplies for the use of the Navy to be made 
 with the public moneys appropriated for the 
 purpose, under such directions and regulations 
 as the executive may prescribe, the effect of 
 which law was to require new "directions and 
 regulations" in the place of the old regidations. 
 (Strongi-. U. S., 6Wall.,788.) 
 
 Inasmuch as Congress has authorized the 
 successive heads of the Na\^ Department to 
 govern the Naval Academy by regulations, and 
 has interfered therewith only, so to say, desul- 
 torily, the rule of statutory construction, which 
 forbids any disturbance of previously existing 
 statutory or common law hj ^ ^^w statute fur- 
 ther than is necessary to its reasonable opera- 
 tion, must 1)6 applied so as to prevent any un- 
 necessary disturbance of previously existing 
 regulations by a subsequent statute. (15 Op. 
 Atty. Gen., 637.) 
 
 Sec. 1548. [Copy to be furnished to officers.] The Secretary of the Navy 
 shall cause each commissioned or warrant officer of the Navy, on his entry into 
 the service, to be furnished with a copy of the regulations and general orders of 
 the Navy Department then in force, and thereafter wath a copy of aU such as 
 may be issued.— (17 July, 1862, c. 204, s. 19, v. 12, p. 610.) 
 
 Sec. 1549. [Regulations of supplies.] It shall be the duty of the President 
 to make, subject to the provisions of law concerning supplies, such regulations for 
 
 787 
 
Sec. 1551. 
 
 Pi. 2. REVISED STATUTES. 
 
 The Navy. 
 
 tho ])urchjise, preservation, and disposition of all articles, stores, and supplies for 
 persons in the Navy, as may be necessary for the safe and economical adminis- 
 tration of that branch of the pubhc service. — (26 Aug., 1842, c. 206, s. 2, v. 
 5, p. 535; 3 Mar., 1847, c. 48, s. 1, v. 9, p. 171.) 
 
 Exchanfre of worn-out t>7)e\vriting and com- 
 puting machines for the naval establish- 
 ment as part of the purchase price of new 
 ones, was authorized bv act of August 22, 
 1912 (37 Stat., 346). 
 Loan of medical and other equipment to the 
 American Red Cross for instruction and 
 practice, for the purpose of rendering aid 
 to the Army and Navy in war, was author- 
 ized by resolution of MavS^ 1914 (38 Stat., 
 771), amended by resolution of May 18, 
 1916 (39 Stat., 164). 
 Settlement of property accounts is provided for 
 by act of March 29, 1894 (28 Stat., 47); with 
 reference to jurisdiction of Comptroller of 
 the Treasury over property accounts, see 
 note to section 236, Revised Statutes, un- 
 der "III. Limitations upon jurisdiction." 
 Ship's stores in the Navy may charge profit on 
 sales, such profit to be expended for the 
 amusement, comfort, and contentment of 
 the enlisted force. (Act June 24, 1910, 36 
 Stat., 619.) 
 See note to sections 161, 355, 418, 1540, and 1541, 
 Revised Statutes, concerning purchase, 
 sale, exchange, etc., of property belonging 
 to the Navy. 
 Checkages of pay for lost property. — If 
 a regulation shall be made providing that the 
 %villful or negligent damage or destruction of 
 public property by persons in the Navy be 
 charged against the pay of the individual re- 
 sponsible for such damage or destruction, as- 
 certained by a board of survey or other fair 
 method, then such amount or amounts may law- 
 fully be so charged. (15 Comp. Dec, 491.) 
 
 In an opinion of the Judge Advocate General, 
 December 8, 1909 (file 3980-452:2), it was con- 
 cluded that, in the absence of statutory au- 
 thority, there is no warrant of law for checking 
 the pay of an officer or enlisted man for loss or 
 
 damage to Government property, notmth- 
 standing the contrary decision of the Comp- 
 troller of the Treasury, above noted. Pursuant 
 to said opinion, article 1260 (5), published in 
 Changes in Navy Regulations Circular No. 4 of 
 June 25, 1909, was revoked by the President 
 upon recommendation of the Secretaiy of the 
 Navy. (Naval Dig., 1916, p. 447, citing S. & A. 
 ind., May 10, 1916, No. 186-362 and file 26834- 
 594; see also Smith v. Jackson, 241 Fed. Rep., 
 747, 246 U. S., 388 as to jurisdiction of account- 
 ing officers.) 
 
 There is no authority of law under which an 
 officer of the Navy, who is not required to ren- 
 der return for property in his possession, can 
 be checked for the value of missing property. 
 In this connection attention is in\'ited to the 
 fact that there is no legal obstacle in the way of 
 such officer's depositing to the credit of the 
 United States, if he is willing to do so, a sum 
 sufficient to cover the cost of missing property 
 for which he has been held responsible. 
 (Naval Dig., 1916, p. 447, citing file 18140-35, 
 July 25, 1916.) 
 
 There is no authority of law to check the pay 
 of an officer or enlisted man for the loss of a 
 library book (file 2657-04, Apr. 5, 1904; 3980- 
 452:2, Dec. 8, 1909); or for loss or damage to 
 public property (14 J. A. G., 230); or for a boat 
 taken ^\ithout permission and lost (file 170-04, 
 Jan 21, 1904); or for careless enlistments by re- 
 cruiting officers of the Navy (file 5942-34); or 
 for windows broken through carelessness (file 
 18140-16, Feb. 27, 1912). (Naval Dig., 1916 
 p. 448.) 
 
 The practice of having enlisted men attached 
 to a receiving ship checked in their pay ac- 
 counts for the loss or destruction of Govern- 
 ment property, upon their request, in lieu of 
 being punished for the offense involved therein, 
 is wholly 'unauthorized by law. (Naval Dig., 
 1916, p. 448, citing file 3773-149, Dec. 26, 1912.) 
 
 Sec. 1550. [Appointment of persons to disburse money on foreign stations.] 
 No person shall be employed or continued abroad, to receive and pay money 
 for the use of the naval service on foreign stations, whether under contract or 
 otherwise, who has not been, or shall not be, appointed by and with the advice 
 and consent of the Senate. — (17 June, 1844, c. 107, s. 4, v. 5, p. 703.) 
 
 The senior officer present may make an acting 
 appointment of any fit person to perform 
 the duties of paymaster or assistant pay- 
 master on foreign stations when such office 
 
 becomes vacant by death or otherwise, 
 until another paymaster or assistant pay- 
 master shall report for duty. (Sees. 1381 
 and 1564, R. S.) 
 
 Sec. 1551. [Insane of the Navy.] The Secretary of the Navy may cause 
 persons in the naval service or Marine Corps, who become insane while in the 
 service, to be placed in such hospital for the insane as, in his opinion, will be 
 most convenient and best calculated to promise a restoration of reason. And 
 he may pay to any such hospital, other than the Government Hospital for 
 the Insane in the District of Columbia, the pay which may irom time to time 
 be due to such insane person, and he may, in addition thereto, pay to such 
 
 788 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1553. 
 
 institution, from the annual appropriation for the naval service, under the head 
 of contingent enumerated, any deficiency of a reasonable expense, not exceed- 
 ing one hundred dollars per annum. — (3 Aug., 1848, c. 121, s. 13, v. 9, p. 272. 
 
 13, p. 348.) 
 
 2 July, 1864, c. 210, s. 2, v 
 
 Amendment to this section was made by act of 
 July 1, 1916, section 1 (39 Stat., 309), 
 which provided that "after the pas^ge of 
 this act the Government Hospital for the 
 Insane shall be known and designated as 
 Saint Elizabeths Hospital." 
 For general provisions relating to the Govern- 
 ment Hospital for the Insane, see sections 
 4838-4858, Revised Statutes. 
 With reference to habeas corpus proceedings in 
 cases of persons in the naval service com- 
 mitted to the Government Hospital for the 
 Insane, see note to section 761, Revised 
 Statutes, under "Appeal from decision of 
 court or judge granting writ," and "Arrest 
 of petitioner after discharge." 
 Allotments of pay. — A warrant officer of the 
 Navy confined in the Government Hospital for 
 the Insane is not authorized by law or regu- 
 lations to register an allotment, even though 
 mentally competent to take such action, for the 
 reason that he is ashore within the United 
 States (Navy Regs., 1909, art. 1094); the wife 
 of such an officer desiring to secure a portion 
 of his pay should have a guardian or committee 
 appointed to take charge of his affairs. (File 
 8528-327:1; see also 8528-111; compare Navy 
 Regs., 1913, art. 4472.) 
 
 The Secretary of the Navy has no power to 
 increase a naval officer's allotment of pay in 
 favor of his wife Avithout his consent, and if the 
 Secretary makes such increase Avithout his 
 consent, he mav recover the illesal excess. 
 (Melville v. U. S., 23 Ct. Cls., 74.) ' 
 
 Where an enlisted man of the naval service 
 is a patient at the Government Hospital for the 
 Insane, and it has been certified by the naval 
 medical officer at, and the superintendent of, 
 said hospital that he is mentally competent to 
 receive and dispose of his pay, he is legally 
 competent to make an allotment or assignment 
 of wages in accordance with Navy Regulations, 
 1913, articles 4471 and 4472. (File 10060-67, 
 Aug. 18, 1915; see also 8528-340; 1802-04; 8528- 
 399, Oct. 29, 1913; C. M. O. 29, 1915.) 
 
 See also section 1430, Revised Statutes, and 
 note thereto. 
 
 Corafort and welfare of patients. — Where 
 certain articles are essential for the comfort and 
 welfare of general court-martial prisoners con- 
 fined in the Government Hospital for the In- 
 
 sane, the naval medical officer is authorized to 
 forward a certificate, setting forth the articles 
 desired, to the commandant of the navy yard, 
 Washington, D. C.; the commandant has 
 authority to approve the purchase of such 
 articles, not to exceed .|3 per month, the amount 
 excepted by the court-martial sentence for 
 "necessary prison expenses"; if there is no 
 money due such prisoners, these articles will be 
 charged to ' ' Pay, Miscellaneous, ' ' in accordance 
 with the act of February 16, 1909, section 3 
 (35 Stat., 622). Naval patients not under- 
 going punishment, when competent to sign pay 
 receipts for such articles, will be allowed to 
 draw the same from pay due, and the command- 
 ant is authorized to approve such purchases 
 upon certification of the naval medical officer 
 that such patients are competent to sign pay 
 receipts for nominal amounts necessary to the 
 comfort and welfare of such patients. There is 
 no authority whereby patients not undergoing 
 sentence, and who are legally incompetent to 
 sign such pay receipts, can draw such sums un- 
 less a guardian or committee has been appoint- 
 ed. (C. M. O. 22-1915, citing file 10060-61, 
 June 3, 1915; see also 8528-410, June 4, 1914; 
 10060-14, Jan. 30, 1911; 10060-46, June 12, 
 1914.) 
 
 Payment of service pensions due in- 
 mates. — Allowances under sections 4756 and 
 4757, Revised Statutes, which accrue to in- 
 mates of Saint Elizabeths Hospital, should be 
 paid to the superintendent of the hospital, not- 
 withstanding such inmates are represented by 
 a legal guarclian or committee. (31 Op. Atty. 
 Gen., 354.) 
 
 Jurisdiction of civil authorities. — The 
 only provision for a judicial inquiry into the 
 mental status of any persons, previous to their 
 admission to Saint Elizabeths Hospital, is in 
 the case of indigent persons residing in the 
 District of Columbia. An enlisted man who 
 was discharged from the Army because of in- 
 sanity was properly admitted to said hospital 
 upon the order of the Secretary of the Treasury 
 as an insane patient of the Bureau of War Risk 
 Insurance, and as he does not come within the 
 class of indigent persons residing in the District 
 of Columbia, no judicial inquiry prior to his 
 admission is necessary. (31 Op. Atty. Gen., 
 431.) 
 
 Sec. 1552. [Coal depots. Repealed.] 
 
 This section provided as follows: 
 "Sec. 1552. The Secretary of the Navy may 
 establish, at such places as he may deem neces- 
 sary, suitable depots of coal, and other fuel, for 
 
 the supply of steamships of war." — (31 Aug., 
 1842, c. 279, s. 7, v. 5, p. 577.) 
 It was repealed by act of March 4, 1913 (37 
 
 Stat., 898). 
 
 Sec. 1653. [Enticing persons to desert. Repealed.] 
 
 This section provided as follows: 
 
 "Sec. 1553. Any person who shall entice or 
 procure, or attempt to entice or procure, any sea- 
 man or other person in the naval service of the 
 United States, or who has been recruited for 
 such service, to desert therefrom, or who shall 
 
 in anywise aid or assist any such searnan or 
 other person in deserting, or in attempting to 
 desert from such service, or who shall harbor, 
 conceal, protect, or in aiiywise assist any such 
 seaman or other person who may have deserted 
 from said service, knowing him to have deserted 
 
 789 
 
Sec. 1555. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 therefrom, or who shall refuse to give up and 
 deliver such person on the demand of an officer 
 authorized to receive him, shall be punished by 
 imprisonment for not less than six months nor 
 more than three years, and by fine of not more 
 than two thousand dollars, to be enforced in any 
 court of the United States haWng jurisdic- 
 tion."— (1 July, 18G4, c. 201, y. 13, p. 343.) 
 
 It ■wa^ repealed by the Criminal Code, act 
 of March 4, 1909, section 341 (35 Stat., 1153), 
 and was reenacted, mth amendments, by sec- 
 tion 42 of the same act (35 Stat., 1097), which 
 also reenacted, with amendments, section 
 5455, Revised Statutes. 
 
 Punishment by court-martial of per- 
 sons in the naval service who receive or en- 
 tertain deserters is pro\'ided for by section 1624, 
 RcAdsed Statutes, article 8, paragraph 22. 
 
 Attorney not guilty because of advice 
 given client. — An attorney employed by the 
 father of a soldier, 16 years old, who had en- 
 listed without the father's consent, to obtain 
 his release on the ground of nonage, by advis- 
 ing the soldier, who was then a deserter, to re- 
 main away h-om the authorities until notified, 
 held, not to have "harbored, concealed or 
 assisted" the deserter within Criminal Code, 
 section 42, which requires, to constitute the 
 offense, some positive, physical act, done with 
 knowledge and intent to aid in the wrongful 
 purpose of the deserter. (Firpo v. U. S., 261 
 Fed. Rep., 850.) 
 
 To "conceal," as used in Criminal Code, 
 section 42, providing for punishment of anyone 
 who shall harbor, conceal, protect, or assist any 
 soldier who has deserted from service, means to 
 hide, secrete, or keep out of sight. (Firpo v. 
 U. S., 261 Fed. Rep., 850.) 
 
 To "harbor," as used in Criminal Code, 
 section 42, providing for punishment of anyone 
 who shall harbor, conceal, protect, or assist any 
 soldier who has deserted from ser\dce, means to 
 lodge, to care for, after secreting the deserter. 
 (Firpo V. U. S., 261 Fed. Rep., 850.) 
 
 "Where enlistment not completed. — 
 Under the act of Congress of March 2, 1855, 
 section 11 (10 Stat., 628), making it an offense 
 to entice a seaman who has enlisted in the naval 
 service of the United States to desert there- 
 from, held, that one who had previously been 
 in the Navy, and whose term of service had 
 expired, and who came to the United States 
 naval rendezvous in Boston to reenlist, and 
 passed through all the necessary steps there, 
 
 was exarnined and passed by the surgeon and 
 his descriptive and transcript lists made out 
 and given to the commanding officer of the 
 rendezvous, and who took the oath required by 
 act of Congress, signed the Navj^ shipping arti- 
 cles which stated, among other things, his 
 "term of enUstment" and "date of enlistment," 
 and received orders to go on board the receiving 
 ship and for advance pay and bounty, and 
 everything necessary to his enlistment, so far 
 as the officer in charge of recruiting at the naval 
 rendezvous was concerned, was completely 
 performed according to the instructions of the 
 Navy Department; and who went to the re- 
 ceiving ship, but when he reached it was so 
 intoxicated that the commanding officer, in 
 pursuance of instructions issued by the Na\'y 
 Department, declined to receive him until he 
 became sober; and who then left the ship, say- 
 ing that he would report in the morning; arid 
 before the morning was induced by the de- 
 fendant not to return to the vessel but to enlist 
 in the Army, was not enlisted within the mean- 
 ing of the aforesaid act, he not having been 
 examined by the surgeon on the receiving ship 
 or accepted there, and not naving his name 
 entered on the books of the ship, and it appear- 
 ing that no recruit coming from any naval 
 rendezvous and who had passed through all 
 the forms there was ever allowed an advance 
 or any pay, or had his name recorded on the 
 paymaster's books, until he had passed the 
 surgeon on board the receiving ship. (U. S. 
 V. Thompson, 28 Fed. Cas. No. 16491; see also 
 Tyler -y. Pomeroy, 8 Allen (Mass.) 480; and see 
 note to sec. 1418, R. S., under "When enlist- 
 ment complete.") 
 
 Desertion in consequence of induce- 
 ments made prior to enlistraent. — Where 
 the prisoner, in order to induce one H. to 
 enlist, made representations to him as to the 
 means and facilities of deserting, and after he 
 had enlisted received the whole of his bounty 
 money, and at the times when he made such 
 representations and received the money he 
 believed they would be likely to cause H. to 
 desert, and they did cause him to desert, the 
 prisoner may be deemed to have procured or 
 enticed H. to desert within the meaning of the 
 statute of_1812, chapter 14, section 17 (2 Stat., 
 673). It is not necessary, in order to warrant a 
 conxdction, that the prisoner should have 
 wished or intended that H. should desert. 
 (U. S. •;; Clark, 25 Fed. Cas. No. 14808.) 
 
 Sec. 1554. [Captured flags.] The Secretary of the Navy shall cause to be 
 
 collectecl and transmitted to him, at the seat of Government of the United 
 
 States, all such flags, standards, and colors as shall have been or may hereafter 
 
 be taken by the Navy from enemies. — (18 April, 1814, c. 78, s. 1, v. 3, p. 133.) 
 
 upon the same original enactment as this 
 section. 
 
 Substantially this same provision is contained 
 in section 428, Revised Statutes, based 
 
 Sec. 1565. [Preservation of, in some public place.] All flags, standards, 
 and colors of the description mentioned in the foregoing section, which are 
 now in the possession of the Navy Department, or may hereafter be transmitted 
 to it, shall be delivered to the President, for the purpose of being, under his 
 direction, preserved and displayed in such public place as he may deem proper. — 
 (18 April, 1814, c. 78, s. 1, v. 3, p. 133.) 
 
 790 
 
CHAPTER EIGHT. 
 
 PAY, EMOLUMENTS, AND ALLOWANCES. 
 
 Sec. 
 
 1556. Pay of commissioned and warrant of- 
 
 ficers, midshipmen, mates, secretaries 
 and clerks, nurses, and Naval Reserve 
 Force. 
 
 1557. Furlough pay. 
 
 1558. Allowances. 
 
 1559. Volunteer ser\'ice. 
 
 1560. Commencement of pay; original entry. 
 
 1561. Commencement of pay of promoted 
 
 officers. 
 
 1562. In cases of delayed examination. 
 
 1563. Advances to persons on distant stations. 
 
 1564. Persons acting as pavTnaster. 
 
 1565. Chiefs of bureau. 
 
 1566. Mileage and traveling expenses. 
 
 1567. Officers serving as storekeepers on for- 
 
 eign stations. 
 
 1568. Civilians, storekeepers on foreign sta- 
 
 tions. 
 
 1569. Pay of enlisted men. 
 
 1570. Additional pay for serving as firemen. 
 
 1571. Sea service. 
 
 1572. Detention beyond term of enlistment. 
 
 1573. Honorable discharge gratuity and con- 
 
 tinuous ser%-ice pay. 
 
 Sec. 
 
 1574. Crews of wrecked or lost vessels. 
 
 1575. Crews of vessels taken by an enemy. 
 
 1576. Assignment of wages. 
 
 1577. Rations of midshipmen. 
 
 1578. Rations of other officers. 
 
 1579. When rations not allowed. 
 
 1580. Navy ration, constituents of. 
 
 1581. Substitutions in rations, and extra al- 
 
 lowance for night watches. 
 
 1582. Short allowance. 
 
 1583. Rations stopped for the sick. 
 
 1584. Additional ration. 
 
 1585. Ration commutation. 
 
 1586. Medicines and medical attendance. 
 
 1587. Funeral expenses. 
 
 1588. Pay of retired officers. 
 
 1589. Retired rear admirals. 
 
 1590. Third assistant engineers. 
 
 1591. Pay not increased by promotion. 
 
 1592. Pay on active duty. 
 
 1593. Officers retired on furlough pay. 
 
 1594. Transfer from furlough to retired pay list. 
 
 1595. Rations. 
 
 [See Notes at End of Section 1556 for Laws Amendatory of that Section, in Force 
 March 4, 1921, Relating to the Pay of Commissioned and Warrant Officers, Mid- 
 shipmen, Mates, Secretaries and Clerks, Nurses, and Naval Reserve Force; 
 Additional Pay for Special Duty, Etc.] 
 
 Sec. 1556. [Pay of commissioned and warrant officers, midshipmen, mates, 
 secretaries and clerks, nurses, and Naval Reserve Force.] The commissioned 
 officers and warrant officers on tlie active list of the Navy of the United States, 
 and the petty officers, seamen, ordinary seamen, firemen, coal-heavers, and 
 employes in the Navy, shall be entitled to receive annual pay at the rates 
 herein stated after their respective designations: — (20 Feb., 1874, c. 35, v. 18, 
 p. 17.) 
 
 [2] The Admiral, thirteen thousand doUars. — (15 July, 1870, c. 295, s. 
 3, V. 16, p. 330.) 
 
 [3] The Vice-Admiral, when at sea, nine thousand doUars; on shore duty, 
 eight thousand dollars; on leave, or waiting orders, six thousand dollars. 
 
 [4] Rear-admirals, when at sea, six thousand dollars; on shore duty, five 
 thousand doUars; on leave, or waiting orders, four thousand doUars. 
 
 [5] Commodores, when at sea, five thousand doUars; on shore duty, four 
 thousand doUars; on leave, or waiting orders, three thousand doUars, 
 
 [6] Captains, when at sea, four thousand five hundred doUars; on shore 
 duty, three thousand five hundred doUars; on leave, or waiting orders, two 
 thousand eight hundred doUars. 
 
 [7] Commanders, when at sea, three thousand five hundred doUars; on 
 shore duty, tliree thousand doUars; on leave, or waiting orders, two tliou- 
 sand tliree himdred doUars. 
 
 791 
 
Sec. 1556. Ft. 2. REVISED STATUTES. The Navy. 
 
 [S] Lioutenant-commandors, (lurinw the first four years after date of com- 
 mission, when at sea, two thousand eight hundred dollars; on shore duty, 
 two thousand four hundred dollars; on leave, or waiting orders, two thou- 
 sand dollars; after four years from such date, when at sea, three thousand 
 dollars; on shore duty, two thousand six hundred dollars; on leave, or waiting 
 orders, two thousand two hundred dollars. 
 
 [9] Lieutenants, during the first five years after date of commission, when 
 at sea, two thousand four hundred dollars; on shore duty, two thousand 
 dollars; on leave, or waiting orders, one thousand six hundred dollars; after 
 five years from such date, when at sea, two thousand six hundred dollars; 
 on shore duty, two thousand two hundred dollars; on leave, or waiting orders, 
 one thousand eight hundred dollars. 
 
 [10] Masters, during the first five years after date of commission, when 
 at sea, one thousand eight hundred dollars; on shore duty, one thousand 
 five hundred dollars; on leave, or waiting orders, one thousand two hundred 
 dollars; after, five years from such date, when at sea, two thousand dollars; 
 on shore duty, one thousand seven hundred dollars; on leave, or waiting 
 orders, one thousand four hundred dollars. 
 
 [11] Ensigns, during the first five years after date of commission, when at 
 sea, one thousand two hundred dollars; on shore duty, one thousand dollars; 
 on leave, or waiting orders, eight hundred dollars; after five years from such 
 date, when at sea, one thousand four hundred dollars; on shore duty, one 
 thousand two hundred dollars; on leave, or waiting orders, one thousand 
 dollars. 
 
 [12] IVIidshipmen, after graduation, when at sea, one thousand dollars; on 
 shore duty, eight hundred dollars; on leave, or waiting orders, six hundred 
 dollars. 
 
 [13] Cadet midshipmen, five hundred dollars. — (16 July, 1862, c. 183, s. 15, 
 V. 12, p. 586. 15 July, 1870, c. 295, s. 12, v. 16, p. 334.) 
 
 [14] Mates, when at sea, nine hundred dollars; on shore duty, seven hun- 
 di'ed dollars; on leave, or waiting orders, five hundred dollars. — (15 July, 
 1870, c. 295, s. 3, v. 16, p. 330.) 
 
 [15] Fleet-surgeons, fleet-paymasters, and fleet-engineers, lour thousand 
 four hundred dollars.— (15 July, 1870, c. 295, s. 3, v. 16, p. 330.) 
 
 [16] Medical directors, medical inspectors, pay directors, and pay inspect- 
 ors, and chief engineer having the same rank as pay director and pay inspector, 
 when on duty at sea, four thousand four hundred dollars. 
 
 When not at sea, the same as surgeons and paymasters, respectively. — 
 (15 July, 1870, c. 295, s. 3, v. 16, p. 331. 3 Mar., 1871, c. 117, ss. 5, 6, v." 16, 
 pp. 535, 536. 3 Mar., 1873, c. 230, s. 1, v. 17, p. 555.) 
 
 [17] Surgeons, paymasters, and chief engineers who have the same rank 
 with paymasters, during the first five years after date of commission, when 
 at sea, two thousand eight hundred dollars; on shore duty, two thousand 
 four hundred dollars; on leave, or waiting orders, two thousand dollars; dur- 
 ing the second five years after such date, when at sea, three thousand two 
 hundred dollars; on shore duty, two thousand eight hundred dollars; 
 on leave, or waiting orders, two thousand four hundred dollars; during the 
 third five years after such date, when at sea, three thousand five hundred 
 
 792 
 
The Navy. Pt. 2. REVISED STATUTES. Sec. 1556. 
 
 dollars; on shore duty, tlu'ee thousand two hundred dollars; on leave, or 
 waiting orders, two thousand six hundred dollars; during the fourth five 
 years after such date, when at sea, three thousand seven hundred dollars; 
 on shore duty, thi-ee thousand six hundred dollars; on leave, or waiting orders, 
 two thousand eight hundred dollars; after twenty years from such date, when 
 at sea, four thousand two hundred dollars; on shore duty, four thousand 
 dollars; on leave, or waiting orders, three thousand dollars. — (15 July, 1870, 
 c. 295, s. 3, V. 16, p. 330.) 
 
 [IS] Passed assistant surgeons, passed assistant paymasters, and first 
 assistant engineers, during the first five years after date of appointment, w^hen 
 at sea, two thousand dollars; on shore duty, one thousand eight hundred 
 dollars; on leave, or waiting orders, one thousand five hundred dollars; after 
 five years from such date, when at sea, two thousand two hundred dollars; 
 on shore duty, two thousand dollars; on leave, or waiting orders, one thousand 
 seven hundred dollars. 
 
 [19] Assistant surgeons, assistant paymasters, and second assistant engi- 
 neers, during the first five years after date of appointment, when at sea, one 
 thousand seven hundred dollars; on shore duty, one thousand four hundred 
 dollars; on leave, or waiting orders, one thousand dollars; after five years 
 from such date, when at sea, one thousand nine hundred dollars; on shore 
 duty, one thousand six hundred dollars; on leave, or waiting orders, one thou- 
 sand two hundred dollars. 
 
 [20] Assistant surgeons of three years' service, who have been found qual- 
 ified for promotion by a medical board of examiners, the pay of passed 
 assistant surgeons. — (3 Mar., 1871, c. 117, s. 5, v. 16, p. 535.) 
 
 [21] Naval constructors, during the first five years after date of appoint- 
 ment, when on duty, three thousand two hundred dollars; on leave, or waiting 
 orders, two thousand two hundred dollars; diu-ing the second five years after 
 such date, when on duty, three thousand four hundred dollars; on leave, or 
 waiting orders, two thousand four hundred dollars; during the third five years 
 after such date, when on duty, three thousand seven hundred dollars; on leave, 
 or waiting orders, two thousand seven hundred dollars; during the fourth five 
 years after such date, when on duty, four thousand dollars; on leave, or waiting 
 orders, three thousand dollars; after twenty years from such date, when on 
 duty, four thousand two hundred dollars; on leave, or waiting orders, three 
 thousand two hundred dollars.— (15 July, 1870, c. 295, s. 3, v. 16, p. 331.) 
 
 [22] Assistant naval constructors, during the first four years after date of 
 appointment, w^hen on duty, two thousand dollars; on leave, or waiting orders, 
 one thousand five hundred dollars; during the second four years after such 
 date, when on duty, two thousand two hundred dollars; on leave, or waiting 
 orders, one thousand seven hundred dollars; after eight years from such date, 
 when on duty, two thousand six hundred dollars; on leave, or waiting orders, 
 one thousand nine hundred dollars. 
 
 [23] Chaplains, during the first five years after date of commission, when 
 at sea, two thousand five hundred dollars; on shore duty, two thousand dollars; 
 on leave, or waiting orders, one thousand six hundred dollars; after five years 
 from such date, when at sea, two thousand eight hundred dollars; on shore duty, 
 
 793 
 
Sec. 1556. PL 2. REVISED STATUTES. The Navy. 
 
 two thousand tliree hundred dollars; on leave, or waiting orders, one thousand 
 nine hundred dollars. 
 
 [24] Professors of mathematics and civil engineers, during the first five 
 years after date of appointment, when on duty, two thousand four hundred 
 dollars; on leave, or waiting orders, one thousand five hundred dollars; during 
 the second five years after such date, when on duty, two thousand seven 
 hundred dollars; on leave, or waiting orders, one thousand eight hundred 
 dollare; during the third five years after such date, when on duty, three 
 thousand dollars; on leave, or waiting orders, two thousand one hundred 
 dollars; after fifteen years from such date, when on duty, three thousand five 
 himdred dollare; on leave, or waiting orders, two thousand six hundred dollars. 
 
 [25] Boatswains, gunners, carpenters, and sail-makers, during the first 
 three years after date of appointment, when at sea, one thousand two hundred 
 dollars; on shore duty, nine hundred dollars; on leave, or waiting orders, seven 
 hundred dollars; during the second three years after such date, when at sea, 
 one thousand three hundred dollars; on shore duty, one thousand dollars; on 
 leave, or waiting orders, eight hundred dollars; during the third three years 
 after such date, when at sea, one thousand four hundred dollars; on shore 
 duty, one thousand three hundred dollars; on leave, or waiting orders, nine 
 hundred dollars; during the fourth three years after such date, when at sea, 
 one thousand six hundred dollars; on shore duty, one thousand three himdred 
 dollars; on leave, or waiting orders, one thousand dollars; after twelve years 
 from such date, when at sea, one thousand eight hundred dollars; on shore 
 duty, one thousand six hundred dollars; on leave, or waiting orders, one thou- 
 sand two hundred dollars.— (15 July, 1870, c. 295, s. 3, v. 16, p. 332.) 
 
 [26] Secretaries to the Admiral and the Vice-Admiral, each two thousand 
 five hundred dollars. 
 
 Secretaries to commanders of squadrons, two thousand dollars. 
 
 Secretary of the Naval Academy, one thousand eight himdred dollars. — 
 (15 July, 1870, c. 295, s. 3, v. 16, p. 332.) 
 
 [27] Clerks to commanders of squadrons and commandei's of vessels, seven 
 hundred and fifty dollars.— (15 July, 1870, c. 295, s. 3, v. 16, p. 332.) 
 
 [28] First clerks to commandants of navy-yards, one thousand five hun- 
 dred dollars. 
 
 Second clerks to commandants of navy-yards, one thousand two hundred 
 dollars. 
 
 Clerk to commandant at navy-yard at IVIare Island, one thousand eight 
 hundred dollars. 
 
 Clerks to commandants of naval stations, one thousand five hundred 
 dollars.- (15 July, 1870, c. 295, s. 3, v. 16, p. 332.) 
 
 [29] Clerks to paymasters at navy-yards, Boston, New York, Pliiladelphia, 
 and Washington, one thousand six hundred dollars; Battery, Norfolk, and Pen- 
 sacola, one thousand four hundred dollai's; Mare Island, one thousand eight 
 hundred dollars. 
 
 Clerks to paymasters, at other stations, one thousand three hundred 
 dollars.— (15 July, 1870, c. 295, s. 3, v. 16, p. 332.) 
 
 [30] Clerks to paymasters of receiving ships at Boston, New York, and 
 Philadelphia, one thousand six hundred dollars; at IVIare Island, one thousand 
 
 794 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1556. 
 
 eight hundred dollars; of other receiving ships, one thousand three hundred 
 dollars.— (15 July, 1870, c. 295, v. 16, p. 332.) 
 
 [31] Clerks to paymasters on vessels of the first rate, one thousand three 
 hundred dollars; on vessels of the second rate, one thousand one hundred 
 dollars; on vessels of the tliird rate, and supply-vessels and store-ships, one 
 thousand dollars. — (15 July, 1870, c. 295, s. 3, v. 16, p. 332.) 
 
 [32] Clerks to fleet paymasters, one thousand one hundred dollars. — 
 (15 July, 1870, c. 295, v. 16, p. 332.) 
 
 [33] Clerks to paymasters at the Naval Academy and Naval Asylum, one 
 thousand three hundred dollars. — (15 July, 1870, c. 295, v. 16, p. 332.) 
 
 [34] Clerks to inspectors in charge of provisions and clothing, at navy- 
 yards, Boston, New York, Philadelphia, and Washington, one thousand six 
 hundred dollars; to inspectors in like charge at other inspections, one thousand 
 tliree himdred dollars.— (16 July, 1862, c. 183, s. 15, v. 12, p. 586.) 
 
 [35] Cadet engineers: before final academic examination, five hundred 
 dollars ; 
 
 After final academic examination, and imtil warranted as assistant en- 
 gineers, when on duty at sea, one thousand dollars; on shore duty, eight 
 hundred dollars; on leave, or waiting orders, six hundred dollars. — (4 July, 
 1864, c. 252, s. 5, v. 13, p. 393. 3 Mar., 1865, c. 124, s. 1, v. 13, p. 539. 15 
 July, 1870, c. 295, v. 16, p. 332. 15 July, 1870, c. 295, s. 3, v. 16, p. 330.) 
 
 1. 
 2. 
 3. 
 4. 
 5. 
 6. 
 7. 
 8. 
 9. 
 10. 
 
 11. 
 12. 
 13. 
 14. 
 15. 
 16. 
 
 17. 
 18. 
 
 19. 
 
 20, 
 21, 
 22, 
 23, 
 
 General rule; amendatory statutes. 
 
 Admirals. 
 
 Vice admirals. 
 
 Rear admirals. 
 
 Commodores. 
 
 Captains. 
 
 Commanders. 
 
 Lieutenant commanders. 
 
 Lieutenants. 
 
 Masters (lieutenants, junior grade) and act- 
 ing lieutenants, junior grade. 
 
 Ensigns and acting ensigns. 
 
 Midshipmen. 
 
 Cadet midshipmen. 
 
 Mates. 
 
 Fleet officers. 
 
 Medical directors and inspectors; pay direc- 
 tors and inspectors. 
 
 Surgeons, paymasters, and chief engineers. 
 
 Passed assistant surgeons, passed assistant 
 paymasters, and first assistant engineers. 
 
 Assistant surgeons, acting assistant surgeons, 
 assistant pa^inasters, second assistant en- 
 gineers. 
 
 Assistant surgeons qualified for promotion. 
 
 Naval constructors. 
 
 Assistant naA'al constructors. 
 
 Chaplains and acting chaplains. 
 
 1. General rule; amendatory statutes. — 
 
 As to definition of pay, allowance, pay proper, 
 and emoluments, see notes to sections 1558 and 
 1569, Re\ised Statutes. 
 
 The Na\'y personnel act of March 3, 1899, sec- 
 tion 13 (30 Stat., 1007), pro\-ided that "after 
 Jime thirtieth, eighteen hundred and ninety- 
 
 24. Professors of mathematics, ci\al engineers, 
 
 and assistant ci\'il engineers. 
 
 25. Warrant officers, acting warrant officers, and 
 
 commissioned warrant officers. 
 
 26. Secretaries. 
 
 27. Clerks to commanders of squadrons, etc. 
 
 28. Clerks to commandants of yards and sta- 
 
 tions. 
 
 29. Clerks to paymasters of yards and stations. 
 
 30. Clerks to paymasters of recei\dng ships, 
 
 etc. 
 
 31. Clerks to paymasters of vessels. 
 
 32. Clerks to fleet paymasters. 
 
 33. Clerks to paymasters at asylum and acad- 
 
 emy. 
 
 34. Clerks to inspectors. 
 
 35. Cadet engineers. 
 
 36. Dental Corps; and Nurse Corps (Female). 
 
 37. Naval Reserve Force. 
 
 38. Additional pay for special duty. 
 
 39. Longe^'ity pay. 
 
 40. Absence from duty. 
 
 41. Deductions for Naval Hospital Fund. 
 
 42. Stoppage of pay, ser^^.ce with contractors. 
 
 43. Waiver of pay. 
 
 44. Allotments of pay. 
 
 45. Reduction of pay. 
 
 46. Termination of pay. 
 
 47. Pay computed on monthly basis. 
 
 nine, commissioned officers of the line of the 
 Navy and of the Medical and Pay Coips [now 
 designated as "Supply Corps," act of July 11, 
 1919, 41 Stat., 147 J shall receive the same pay 
 and allowances, except forage, as are or may 
 be proA-ided by or in piu^uance of law for the 
 officers of corresponding rank in the Army: 
 
 54641°— 22- 
 
 -51 
 
 795 
 
Sec, 1556. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 Provided, That such officers when on shore shall 
 receive the allowances, but fifteen per centum 
 less pay than wlien on sea duty; but this pro- 
 vision shall not apply to warrant officers com- 
 missioned inuler section twelve of this act: 
 Provided further, That when naval officers are 
 detailed ifor shore duty beyond seas they shall 
 receive the same pay and allowances as are or 
 may be proAided by or in pursuance of law for 
 officers of the Army detailed for duty in similar 
 places: Provided further, * * * that all officers, 
 including warrant officers, who have been or 
 may be appointed to the NaA'y from civil life 
 shall, on the date of appointment, be credited, 
 for computing their pay, with fi^e years' ser\ice 
 * * * : And provided further, Thai no ])YO\'ision 
 of this act shall operate to reduce the j^resent 
 pay of any commissioned officer now in the 
 Na^y ; and in any case in which the pay of such 
 an officer would otherwise be reduced he shall 
 continue to receive pay according to existing 
 law: And provided further, That nothing in this 
 act shall operate to increase or reduce the pay 
 of any officer now on the retired list of the 
 Na\'y." (See notes to said act of Mar. 3, 1899, 
 sec. 13, 30 Stat., 1007.) 
 
 In the enactment of the Na\'y personnel act 
 the intention of Congress was CAidently to put 
 officers of the Army and NaAy on the same foot- 
 ing with respect to their general pay, and to 
 make the act prospective in its application to 
 future legislation, so that if Congress should 
 thereafter raise the general pay of Army officers 
 as fixed by Revised Statutes, section 12G1, a 
 like increase should apply to Navy officers. 
 But Congress might thereafter increase the pay 
 of Army officers for serAices in particular places 
 and under special circumstances without there- 
 by intending such increase to apply to naval of- 
 ficers. (U. S. V. Thomas, 195 U. S., 418.) 
 
 The naval personnel act undertook to equal- 
 ize the pay of naAal officers with that of Army 
 officers of equal rank, as to duties properly re- 
 quired of a naval officer, but had no operation 
 to proxide pay for services peculiar to the 
 Army. (U. S. v. Crosley, 196 U. S., 327.) 
 
 It was the intention of Congress, as shown by 
 the fourth proA-iso of section 13 of the personnel 
 act, to leave undistur]>ed the "present pay" 
 of certain Na^-y officers who were already re- 
 cei\T.ng higher pay than Army officers of the 
 same rank. (U. S. v. Thomas, 195 U. S., 418, 
 420.) However, this pro\iso applied only to 
 officers in the Navy at the time the act was 
 passed, and to the pay they were then recei^'ing. 
 (Tavlor v. U. S., 38 Ct. Cls., 155, 160.) 
 
 By act of June 7, 1900 (31 Stat., 697), section 
 13 of the personnel act was amended so as to 
 pro\ide "that nothing therein contained shall 
 operate to reduce the pay which, but for the 
 
 Eassage of said act, would have been received 
 y any commissioned officer at the time of its 
 passage or thereafter. " With reference to this 
 amendment, it was judicially stated: "The 
 original pro\'iso to section 13 excepted from the 
 pur^-iew thereof ' the commissioned officers now 
 in the Navy' whose 'present pay' was thereby 
 reduced ; while the amendment thereto extends 
 the exception so as to apply to the pay such of- 
 ficers may receive thereafter in case of promo- 
 tion to higher grades, and as to such officers it 
 is provided that they shall continue to receive 
 
 pay 'according to existing law.' The e^ddent 
 purpose of section 13, act of March 3, 1899, was 
 to assimilate the pay of officers of the line of the 
 Navy and of the Medical and Pay Corps to the 
 pay and allowances of officers of corresponding 
 rank in the Armv, reserving, however, to such 
 officers then in the Navy the right to continue 
 to receiA^e Na^'y pay in case the assimilated pay 
 under the act was less. * * * The amendment 
 was clearly intended to apply only to com- 
 missioned officers in the Na\'y when the origi- 
 nal act was passed and to the pay they might 
 receive thereafter in case of promotion." 
 (Taylor v. U. S., 38 Ct. Cls., 155.) "That offi- 
 cers in the Navy at the time the personnel act 
 was passed should not be reduced m pay was an 
 ob\-ious and just exception ; and to have such an 
 exception preserA-ed in all grades is very obA-i- 
 ous and just, which thereby prevents the pro- 
 motion in grade from working a diminution of 
 pay." (Richardson v. U. S., 38 Ct. Cls., 182, 
 191; Jones v. U. S., 50 Ct. Cls., 344, 354. See 
 also Cromwell v. V. S., 42 Ct. Cls., 432; Terry v. 
 U. S., 39 Ct. Cls., 353; Denig v. U. S., 37 Ct. 
 Cls., 383; Littell v .U. S., 36 Ct. Cls., 22.) 
 
 By act of May 13, 1908 (35 Stat., 127), it was 
 provided that "hereafter all commissioned 
 officers of the active list of the Navy shall re- 
 ceive the same pay and allowances according 
 to rank and length of serAice, ' ' with the limita- 
 tion ( 35 Stat. , 128 ) , that ' ' the pay and allowances 
 of chaplains in the Navy shall in no case ex- 
 ceed that provided for lieutenant commanders, " 
 and the sa\dng clause that ' ' nothing herein shall 
 be construed so as to reduce the pay or allow- 
 ances now authorized by law for any commis- 
 sioned, warrant, or appointed officer * * * of 
 the active or retired lists of the Na\y * * *." 
 The said act fixed designated rates of pay for 
 chiefs of bureaus in the NaAy Department and 
 for the various ranks in the Navy, including 
 midshipmen, warrant officers, and mates, as 
 set forth below; and contained general pro^d- 
 sions for increases in pay on account of lon- 
 ge\dty, sea duty, and foreign ser\dce, or shore 
 duty beyond seas, as set forth below. 
 
 The said act of May 13, 1908, was construed 
 by the Comptroller of the Treasury as preserving 
 to officers then in the Navy the right to receive 
 pay at the rates they were actually receiving at 
 the date of said act, and also to receive subse- 
 quent increases in pay as authorized by prior 
 laws where their pay under former laws would 
 be higher than the rates of pav provided by the 
 act of May 13, 1908. (15 Comp. Dec, 174.) 
 In the specific case presented, the comptroller 
 held that a ci^dl engineer who was in the Navy 
 on May 13, 1908, and who thereafter, on August 
 29, 1908, completed 15 years' ser\dce "after 
 date of appointment," was entitled on and after 
 the date last mentioned to receive the rate of 
 pay provided by section 1556, Revised Statutes, 
 for civil engineers after 15 years from date of 
 appointment, such pay being greater in his case 
 than the new rate of pay provided by the act 
 of May 13, 1908, for a civil engineer of his rank 
 and longevity. In support of this conclusion 
 the comptroller cited the saAdng clause in the 
 act of May 13, 1908, that nothing therein con- 
 tained should be construed so as to reduce the 
 pay or allowances "now authorized by law" 
 for any commissioned, warrant, or appointed 
 
 796 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1556. 
 
 officer of the active or retired lists of the Nav\^, 
 and stated that said expression ("'now author- 
 ized by law") "means something more than 
 the pay the officer or man was actually receiving 
 at the passage of the act." 
 
 In the case of Jones v. United States (50 Ct. 
 Cls. , 344), it was judicially determined that the 
 saving clausein the act of May 13, 1908, did not 
 entitle a pajiuaster'a clerk to the rate of pay 
 pro^'ided by section 1556, Revised Statutes, 
 although higher than that provided by the act 
 of May 13, 1908, where said paymaster's clerk 
 was appointed subsequent to said act; and that 
 said clause applied only to persons who were 
 officers of the Navy on the date of the act, the 
 court remarking in its opinion (50 Ct. Cls., 355): 
 ; ' The reason for the proWsion against reduction 
 in the act of 1908 is as manifest as was the pro- 
 vision against reduction in the act of 1899 as 
 amended in 1 900. Somewhat different language 
 is used, but the reason is the same." 
 
 The said act of May 13, 1908, was subse- 
 quently construed by the Comptroller of the 
 Treasury as not entitling an officer of the Naw 
 to the rates of pay provided by section 1556, 
 Revised Statutes, for an office which was not 
 held by him on the date of said act but to 
 which he was thereafter promoted, notwith- 
 standing that he was an officer of the Navy 
 when the act of 1908 was enacted, and that the 
 old rate of pay was greater than that pro\'ided 
 bv said act for the same office. (Comp. Dec 
 Mar. 8, 1917, 193 S. and A. Memo., 4172, file 
 26254-2160.) In this case the comptroller spe- 
 cifically decided that the saving clause in the 
 act of 1908 applies to the "reduction of the pay 
 of an officer as distinguished from that of an 
 office," and is "limited in its effect on pay to 
 the pay of the office which the officer held on 
 Mayl3, 1908, date of its enactment * * * . 
 For such office the old pay, if higher, remains 
 the pay thereof during the period of its occu- 
 pancy by the then incumbent of it, the taking 
 effect of "the new rate of pay in such exceptional 
 cases being, by means of the pro^dso, postponed 
 until that time." 
 
 By act of August 29, 1916 (39 Stat., 581\ it 
 was pro\'ided that "hereafter all commissioned 
 officers of the active list of the Navy shall re- 
 ceive the same pay and allowances according 
 to rank and length of service," omitting the 
 limitation contained in the act of May 13, 1908, 
 with reference to the pay of chaplains. (As to 
 effect of this provision upon pay of chaplains, 
 see below, under "23. Chaplains.")* This 
 clause was followed by a pro^dso that it "shall 
 not be construed to reduce the pay and allow- 
 ances of commissioned warrant officers as herein 
 authorized." Also in the same act (39 Stat., 
 579), it was pro\ided that "nothing contained 
 in this act shall be construed to reduce the 
 rank, pay, or allowances of any officer of the 
 Navy or Marine Corps as now provided by 
 law." 
 
 By act of May 18, 1920 (41 Stat., 601), tem- 
 porary increases in paj^ were authorized, as set 
 forth below, for officers of the Navy with the 
 rank of captain and below, including warrant 
 officers, such increases to remain effectiA^e until 
 the close of the fiscal year ending June 30, 1922, 
 with the proviso that "the increases pi-ovided 
 in this act shall not enter into the computation 
 
 of the retired pay of officers or enlisted men 
 who may be retired prior to July 1, 1922"; and 
 with the further provision (sec. 14) "that 
 nothing contained in this act shall operate to 
 reduce the pay or allowances of any officer or 
 enlisted man on the active or retired list: Pro- 
 vided, That the allowances and gratuities now 
 authorized by existing law are not changed 
 hereby, except as otherwise specified in this 
 act." 
 
 By said act of May 18, 1920, it was further 
 pro\'ided (sec. 13) "that a special committee, 
 to be composed of five Members of the Senate, 
 to be appointed by the Vice President, and five 
 Members of the House of Representatives, to be 
 appointed by the Speaker of the House of Rep- 
 resentatives, shall make an investigation and 
 report recommendations to their respective 
 Houses not later than the first Monday in 
 January, 1922, relative to the readjustment of 
 the pay and allowances of the commissioned 
 and enlisted personnel of the several services 
 herein mentioned . ' ' 
 
 2-3. Admirals; Vice admirals. — See note 
 to section 1362, Re\'ised Statutes. 
 
 By act of May 13, 1908 (35 Stat., 127), the pay 
 of Admiral was fixed at $13,500 per annum. 
 The grade of "Admiral of the Na\^" ceased to 
 exist upon the death of Admiral George Dewey 
 on January 16, 1917. By act of August 29, 1916 
 (39 Stat., 558), the Chief of Naval Operations, 
 while so ser\-iug, is given the rank and title of 
 Admiral, with pay at the rate of $10,000 per 
 annum. By act of May 22, 1917, section 18 (40 
 Stat., 89), the President is authorized to desig- 
 nate six officers of the NaAy for the command 
 of fleets or subdiA-isions thereof, not more than 
 three of whom shall have the rank and pay of 
 Admiral, and the others the rank and pay of 
 Vice Admiral, ' 'from the date of assuming such 
 command until relinquishing thereof," and by 
 the same act it was pro\ided that "the pay of an 
 Admiral shall be $10,000 and the pay of a Vice 
 Admiral $9,000 per annum." This act super- 
 seded pro\'isions on the same subject contained 
 in the naval appropriation act of March 3, 1915. 
 (38 Stat., 941, 942.) The latter act was con- 
 strued as not investing the officers concerned 
 with the offices of Admiral and Vice Admiral, 
 but merely as conferring upon them, tempora- 
 rily, the rank and pay of those offices, while 
 they continued at the same time to be officers 
 of the grade permanently held by them in the 
 Navy. (21 Comp. Dec, 840.) 
 
 An officer ser\dng as commander in chief of a 
 fleet with the rank of Admiral, in accordance 
 with the act of March 3, 1915, was held not 
 entitled, in addition to the pay pi'ovided in said 
 act for rear admirals so ser^^.ng, to 10 per centum 
 increase thereof for sea duty under the act of 
 May 13, 1908. (22 Comp. Dec, 522.) 
 
 As to allowances see notes to sections 1487, 
 1558, and 1578, Re\'ised Statutes. 
 
 Increased pay for longOAity is authorized by 
 the act of May 13, 1908 (35 Stat., 128), only for 
 officers "below the rank of rear admiral." 
 
 4. Rear admirals. — See notes to sections 
 1362 and 14G6, Re\ised Statutes. 
 
 By act of May 13, 1908 (35 Stat., 127), the pay 
 of "rear admiral, first nine," was fixed at $8,000 
 per annimi, and "rear admiral, second nine," at 
 
 797 
 
Sec. 1556. 
 
 Pt.^. REVISED STATUTES. 
 
 The Navy. 
 
 $0,000 per annum. By act of Au^st 29, 1916 
 (;59 Stat., 577, 578), it was pro\'ided that "here- 
 after pay and allowances of officers in the upper 
 half of the grade or rank of roar admiral, includ- 
 ing the staff corps and including staff officers 
 heretofore permanently commissioned with the 
 rank of rear admiral, shall be that now allowed 
 by law for the first nine rear admirals, and the 
 pay and allowances of officers in tlio lower half 
 of the grade or rank of rear admiral, including 
 the staff corps, shall be that now allowed by 
 law for the second nine rear admirals." 
 
 Increased pay for longevity is authorized by 
 the act of May 13, 1908 (35 Stat., 128), only for 
 officers "below the rank of rear admiral." 
 
 As to increased pay for special ser\'ice, see 
 notes below under ' '38. Additional pay for spe- 
 cial duty," and note to section 1571, Revised 
 Statutes. 
 
 As to allowances of rear admirals, see notes to 
 sections 1487, 1558, and 1578, Re\ised Statutes. 
 
 A commodore in the Navy who was commis- 
 sioned as a rear admiral on March 3, 1899, was 
 entitled to the sea pay of a rear admiral as fixed 
 by section 1556, Reidsed Statutes, this being 
 higher than the pay of a rear admiral of the 
 lower half as fixed by the Navy personnel act of 
 March 3, 1899, and the act of June 7, 1900, 
 ha\dng allowed this officer to receive the old 
 rate of pay where higher than that provided by 
 the act of March 3, 1899. The pay of officers in 
 service at the date of the act of March 3, 1899, 
 and the amendatory act of June 7, 1900, might 
 be increased by the terms of those statutes, but 
 was not to be diminished. (Cromwell v. U. S., 
 42 Ct. Cls., 432. See above, under "1. General 
 rule.") 
 
 Section 7 of the Navy personnel act of March 
 3, 1899 (30 Stat., 1004), provided that each rear 
 admiral embraced in the nine lower numbers 
 of that grade shall receive the same pay and 
 allowances as then allowed a brigadier general 
 in the Army. Section 13 of the same act pro- 
 Added that officers of the line of the Navy when 
 on shore shall receive the allowances, but 15 per 
 centum less pay than when on sea duty. Held, 
 that this pro\T-sion as to pay on shore duty 
 applied to rear admirals of the lower nine. 
 (Rodgers v. U. S., 185 U. S., 83.) 
 
 Section 1466, Revised Statutes, provides 
 that all rear admirals shall rank with major 
 generals in the Army. Section 13 of the Navy 
 personnel act proAdded that officers of the line 
 shall receive tne same pay as officers of corre- 
 sponding rank in the Army; but section 7 of the 
 same act provided that rear admirals of the 
 lower nine shall receive the same pay as briga- 
 dier generals in the Army. Held, that the pro- 
 vision of section 7 was to be read as an excep- 
 tion to the pro\ision in section 13, and accord- 
 ingly that rear admirals of the lower nine were 
 not entitled to the pay of major generals, the 
 corresponding rank in the Army, but only to 
 the pay allowed brigadier generals. (Rodgers 
 V. U. S., 185 U. S., 83.) 
 
 5. Commodores. — See note to section 1362, 
 Revised Statutes. 
 
 The naval appropriation act of May 13, 1908 
 (35 Stat., 127), provided that "hereafter all 
 commissioned officers of the active list of the 
 NaA'y shall receive the same pay and allow- 
 ances, according to rank and length of service, 
 
 and the annual pay of each grade shall be aa 
 follows: •* * * rear admiral, second nine, 
 or commodore, six thousand dollars." How- 
 ever, there were no commodores on the active 
 list at the time of that enactment, and none 
 have since been appointed, the grade of com- 
 modore ha\ing been omitted from the active 
 list by the Na\y personnel act of March 3, 1899, 
 section 7. (30 Stat., 1005.) In certain cases 
 officers have since been retired with the rank 
 of commodore. (See note to sec. 1362, R. S.) 
 
 As to pay of retired officers, see section 1588, 
 RoAdsed Statutes, and note thereto. 
 
 6. Captains.— By act of May 13, 1908 (35 
 Stat., 127), the pay of captain was fixed at 
 $4,000 per annum, plus 10 per cent increase 
 thereon for each term of five years' service in 
 the Army, NaA-y, and Marine Corps, with the 
 limitation that "the total amount of such in- 
 crease for length of ser\dce shall in no case 
 exceed forty per centum on the yearly pay of 
 the grade as pro\dded by law," and that "the 
 annual pay of captain shall not exceed five 
 thousand dollars per annum." As to increased 
 pay over and above the amount of this limita- 
 tion for special serA-ice, see note below under 
 "38. Additional pay for special duty," and note 
 to section 1571, Revised Statutes. 
 
 By act of May 18, 1920 (41 Stat., 601), the 
 pay of captains in the Navy was increased $600 
 per annum "in addition to all pay and allow- 
 ances now allowed by law," such increase to 
 commence January 1, 1920, and to remain 
 effective "until the close of the fiscal year 
 ending June 30, 1922." 
 
 As to allowances of captains, see notes to 
 sections 1487, 1558, and 1578, Revised Statutes. 
 
 7. Comznanders. — By act of May 13, 1908 
 (35 Stat., 127), the pay of commander was fixed 
 at $3,500 per annum, plus 10 per cent increase 
 thereon for each term of five years' service in 
 the Army, NaAy, and Marine Corps, with the 
 limitation that "the total amount of such in- 
 crease for length of ser\dce shall in no case 
 exceed forty per centum on the yearly pay of 
 the grade as pro\ided by law," and that the 
 "annual pay" of commander shall not exceed 
 $4,500 per annum. As to increased pay over 
 and above the amount of this limitation for 
 special service, see note below under "38. 
 Additional pay for special duty," and note to 
 section 1571, Revised Statutes. 
 
 By act of May 18, 1920 (41 Stat., 601), the 
 pay of commanders in the Navy was increased 
 $600 per annum, "in addition to all pay and 
 allowances now allowed by law," such increase 
 to commence January 1, 1920, and to remain 
 effective "until the close of the fiscal year 
 ending June 30, 1922." 
 
 As to allowances of commanders, see notes to 
 sections 1487, 1558, and 1578, Revised Statutes. 
 
 8. Lieutenant commanders. — By act of 
 May 13, 1908 (35 Stat., 127), the pay of lieu- 
 tenant commanders was fixed at $3,000 per 
 annum, plus 10 per cent increase thereon for 
 each term of five years' service in the Army, 
 Navy, and Marine Corps, with the limitation 
 that "the total amount of such increase for 
 length of service shall in no case exceed forty 
 per centum on the yearly pay of the grade as 
 pro\dded by law," and that the "annual pay" 
 of lieutenant commander shall not exceed 
 
 798 
 
The Navy. 
 
 Pt.2. REVISED STATUTES. 
 
 Sec. 1556. 
 
 S4,000 per annum. As to increased pay over 
 and above the amount of this limitation for 
 special service, see note below under "38. Ad- 
 ditional pay for special duty," and note to 
 section 1571, Re\ased Statutes. 
 
 By act of May 18, 1920 (41 Stat, 601, 602), 
 the pay of lieutenant commanders in the Na\"y 
 was increased $840 per annum ' ' in addition to 
 all pay and allowances now allowed by law," 
 such increase to commence January i, 1920, 
 and to remain effective "until the close of the 
 fiscal year ending June 30, 1922." 
 
 As to allowances of lieutenant commanders, 
 see notes to sections 1487, 1558, and 1578, Re- 
 A-ised Statutes. 
 
 9. Lieutenants. — By act of May 13, 1908 
 (35 Stat., 127), the pay of lieutenants was fixed 
 at $2,400 per annum, plus 10 per cent increase 
 thereon for each term of fi^'e years' serA-ice in 
 the Army, Navy, and Marine Corps, with the 
 limitation that "the total amount of such in- 
 crease for length of serAdce shall in no case 
 exceed forty per centum on the yearly pay of 
 the gi-ade as pro\'ided by law. ' ' As to increased 
 pay for special service, see note below under 
 "38. Additional pay for special duty," and note 
 to section 1571, ReAdsed Statutes. 
 
 By act of May 18, 1920 (41 Stat., 602), the 
 pay of lieutenants in the NaAy was increased 
 $720 per annum, "in addition to all pay and 
 allowances now allowed bylaw," such increase 
 to commence January 1, 1920, and to remain 
 effective "until the close of the fiscal year 
 ending June 30, 1922." 
 
 As to allowances of Lieutenants, see notes to 
 sections 1487, 1558, and 1578, Re\ised Statutes. 
 
 10. Masters [lieutenants (junior grade)] 
 and acting lieutenants (junior grade). 
 The grade of master as part of the active Ust of 
 the line was aboUshed, and the grade of lieu- 
 tenant (junior gi-ade) created, bv act of March 
 3, 1883 (22 Stat., 472), which "proAdded that 
 ' ' the masters now on the list shall constitute a 
 junior grade of, and be commissioned as, lieu- 
 tenants, having the same rank and pay as now 
 pro\ided by law for masters." This had the 
 effect of changing the title "master" to "lieu- 
 tenant (junior grade)." (See note to sec. 
 1362, R. S.) 
 
 By act of May 13, 1908 (35 Stat., 127), the 
 pay of Lieutenants (junior gi"ade) was fixed at 
 $2,000 per annum, plus 10 per cent increase 
 thereon for each term of five years' servdce in 
 the Army, Navy, and MarineCorps, with the 
 limitation that "the total amount of such in- 
 crease for length of ser^-ice shall in no case 
 exceed forty per centum on the yearly pay of 
 the grade as pro\dded by law." As to increased 
 pay for special service, see note below under 
 "38. Additional pay for special duty," and note 
 to section 1571, ReAosed Statutes. 
 
 By act of May 18, 1920 (41 Stat., 602), the 
 pay of Ueutenanta (junior grade) in the Navy- 
 was increased $600 per annum, "in addition to 
 all pay and allowances now allowed by law," 
 such increase to commence Januarj^ 1, 1920, 
 and to remain effective "until the close of the 
 fiscal year ending June 30, 1922." 
 
 By act of August 29, 1916 (39 Stat., 583), 
 
 E revision was made for appointment of acting 
 eutenants (junior grade) for aeronautic duties 
 only, and by the same act special proAdsion 
 
 was made for the pay of officers detailed to duty 
 with aircraft invohdng actual flying. (See be- 
 low, under "38. Additional pay for special 
 duty.") 
 
 As to allowances of lieutenants (junior grade), 
 see notes to sections 1487, 1558, and 1578, Re- 
 ^dsed Statutes. 
 
 1 1 . Ensigns and acting ensig^ns. — By act 
 of May 13, 1908 (35 Stat., 127, 128), the pay of 
 ensigns was fixed at $1,700 per annum, plus 
 10 per cent increase thereon for each term of 
 five years' service in the Army, Navy, and 
 Marine Corps, with the limitation that "the 
 total amount of such increase for length of serv- 
 ice shall in no case exceed forty per centum on 
 the yearly pay of the grade as provided by law. " 
 As to increased pay for special service, see note 
 below imder "38. Additional pay for special 
 duty, " and note to section 1571, Revised 
 Statutes. 
 
 By act of May 18, 1920 (41 Stat., 602), the pay 
 of ensigns in the Navy was increased $420 per 
 annum, "in addition to all pay and allow- 
 ances now allowed by law, " such increase to 
 commence January 1, 1920, and to reuiain 
 effective "until the close of the fiscal vear end- 
 ing June 30, 1922. " 
 
 As to allowances of ensigns, see notes to sec- 
 tions 1487, 1558, and 1578, Re\dsed Statutes. 
 
 By act of August 29, 1916 (39 Stat., 580, 583, 
 585), proAdsion was made for the appointment 
 of acting ensigns for engineering duties only and 
 for aeronautic duties only. The same act (39 
 Stat., 581) provided that all commissioned 
 officers of the active list shall receive the same 
 pay and allowances according to rank and 
 length of ser\dce and made special provision 
 for the pay of officers detailed to duty A\dth 
 aircraft invohdng actual flying. (See below 
 imder "38. Additional pay for special duty.") 
 
 12. Midshipmen. — The grade of midship- 
 man as part of the active list of the line was 
 abolished, and the grade of junior ensign created, 
 by act of March 3, 1883 (22 Stat., 472), which 
 pro\dded that "the midshipmen now on the 
 list shall constitute a junior grade of, and be 
 commissioned as, ensigns, ha\dng the same 
 rank and pay as now pro\dded by law for mid- 
 shipmen. " The grade of junior ensign thus 
 created was abolished by act of June 26, 1884, 
 section 2 (23 Stat., 60), which provided that 
 "the junior ensigns now on the list shall be 
 commissioned ensigns in the Na\'y, " and that 
 graduates of the Naval Academy who are as- 
 signed to the line of the Navy on the successful 
 completion of their course shall be commissioned 
 ensigns in the Navy. (See notes to sees. 1362 
 and 1521, R. S.; and see below, under "13. Ca- 
 det midshipmen.'") 
 
 As to pay of ensigns, see above, under "11. 
 Ensigns. " 
 
 13. Cadet midshipmen. — By section 1512, 
 Re\dsed Statutes, it was pro\dded that "the 
 students at the Naval Academy shall be styled 
 cadet midshipmen. " The title of all under- 
 graduates at the Naval Academy was changed 
 to "naval cadets" by act of August 5, 1882 
 (22 Stat., 285), and the title "naval cadet" was 
 changed to "midshipman" by act of July 1, 
 1902 (32 Stat., 686). 
 
 By act of May 13, 1908 (35 Stat., 128), the 
 pay of midsLiipmen was fixed at $600 per au- 
 
 T99 
 
Sec. 1556. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 num while at the Naval Academy, and SI, 400 
 per annum after graduation from the Naval 
 Academv. 
 
 Prior to the act of March 7, 1912 (37 Stat., 
 73), the course at the Naval Academy was six 
 years, the first four of which were spent in 
 pursuing the academic studies at the Academy 
 and the remaining two years at sea. The act 
 of May 13, 1908, made two pay grades for mid- 
 shipmen. The effect of the act of 1912, which 
 reduced the course at the Naval Academy to 
 four years was to eliminate the two years' serv- 
 ice at sea and also the pay grade provided for 
 those thus proN'iously serNdng. It follows that 
 the only pay for midsliipmen now authorized 
 by law is that for those pursuing the four years, 
 course at the Naval Academy, viz, $600 per 
 annum. (20 Comp. Dec, 141; 23 Comp. Dec, 
 279. ('ompare note to sec. 1520, R. S.) 
 
 By act of July 11, 1919 (41 Stat., 146), it was 
 provided that "the pay of midshipmen shall 
 hereafter be $780 per annum. " 
 
 By act of August 29, 1916 (39 Stat., 585), it 
 was pro^dded that "student flyers shall, after 
 receiving a certificate of qualification as an 
 aviator for actual flying in aircraft, rank vrith 
 midsliipmen and shall receive the same pay 
 and allowances as midshipmen, plus fifty per 
 centum thereof. " 
 
 As to rations of midshipmen, see note to sec- 
 tion 1577, Revised Statutes. 
 
 1 4. Mates. — -On the general subject of mates, 
 their status, pay and allowances, etc., see notes 
 to sections 1408 and 1409, Revised Statutes. 
 See also sections 1558, 1569, and 1579, Revised 
 Statutes. 
 
 By act of August 1, 1894 (28 Stat., 212), the 
 annual pay of "the twenty-eight officers now 
 serving as mates in the Navy " was fixed at the 
 foUomng rates: "When at sea, twelve hun- 
 dred dollars; on shore duty, nine hundred dol- 
 lars; on leave or waiting orders, seven hundred 
 dollars." 
 
 By act of May 13, 1908 (35 Stat., 128), the pay 
 of ' 'all" mates was increased 25 per cent. The 
 pay of mates under section 1556, Revised Stat- 
 utes, clause 14, as amended by said acts of 
 August 1, 1894, and May 13, 1908, is as follows: 
 Mates who were serving as such on August 1, 
 1894 — when at sea, $1,500; on shore duty, 
 $1,125; on leave or waiting orders, $875. 
 Mates who were rated as such since August 1, 
 1894 — when at sea, $1,125; on shore duty, $875; 
 on leave or waiting orders, $625. 
 
 By act of May 18, 1920, section 6 (41 Stat., 
 602)," it was provided that, "commencing Jan- 
 uary 1, 1920, the following shall be the rate of 
 base pay for each enlisted rating: * * * chief 
 petty officers with j>ermanent appointments 
 and mates, $126 per month " ; and by section 13 
 of the same act this rate of pay was to remain 
 effective "until the close of the fiscal year end- 
 ing June 30, 1922." It was further provided 
 by section 6 of this act "that the rates of base 
 pay herein fixed shall not be further increased 
 ten per centum as authorized by an act approved 
 Slay 13, 1908, nor by the temporary war in- 
 creases as authorized by section 15 of the act 
 approved May 22, 1917, as amended by the act 
 approved July 11, 1919." 
 
 The act of May 13, 1908 (35 Stat., 128), to 
 which reference is here made, authorized an 
 
 increase of 10 per cent in the pay of "all active 
 and retired enlisted men of the Navy," but 
 this did not include mates, whose pay, as above 
 stated, was increased 25 per cent by the same 
 act. No provision is contained in the act of 
 May 18, 1920, with reference to the inclusion 
 or exclusion of this 25 per cent increase in the 
 computation of the pay of mates as therein 
 fixed. (But see ("omp. Dec, noted below.) 
 
 The act of May 22, 1917, section 15 (40 Stat., 
 87), to which reference is also made in the pro- 
 vision last quoted from the act of May 18, 1920, 
 provided that "commencing June first, nine- 
 teen hundred and sev^enteen, and continuing 
 until not later than six months after the termi- 
 nation of the present war, all enlisted men of the 
 Navy of the United States in active service," 
 should receive certain increase in pay, includ- 
 ing the following: "Those whose base pay is 
 $45 or more per month, an increase of $6 per 
 month." The act of July 11, 1919 (41 Stat., 
 140), also referred to in the provision last quoted 
 from the act of May 18, 1920, provided that the 
 rates of pay prescribed in section 15 of the act 
 approv^ed May 22, 1917, "are hereby made the 
 permanent rates of pay of enlisted men of the 
 Nav'v during their present current enlistment 
 and for those who enlist or reenhst prior to July 
 1, 1920, for the term of such enlistment or reen- 
 listment." 
 
 Prior to May 18, 1920, the "base pay" of 
 mates (rated as such since Aug. 1, 1894) had 
 been held to be at the rate Off $875 per annum, 
 consisting of their shore duty rate under section 
 1556, Revised Statutes ($700 per annimi), with 
 the 25 per cent increase allowed thereon under 
 the act of May 13, 1908. The act of May 18, 
 1920, supersedes or substitutes for said former 
 existing base pay rate that of S126 per month, 
 or 81,512 per annum, a yearly increase of $637 
 per annum. As the old base rate of $875 per 
 annum, which the $126 per month supersedes, 
 included the 25 per cent additional, the act of 
 May 18, 1920, operates to repeal the provision 
 for the 25 per cent increase to mates in the act 
 of May 13, 1908. Accordingly, held, that the 
 base pav of mates fixed by section 6 of the act 
 of May 18, 1920, at $126 per month, is not to be 
 increased 25 per cent thereof. (27 Comp. 
 Dec, 175, citing 23 Comp. Dec, 279.) 
 
 The act of May 18, 1920, section 14 (41 Stat., 
 604), provided that "nothing contained in this 
 act shall operate to reduce the pay or allowances 
 of any officer or enlisted man on the active or 
 retired list: Provided, That the allowances 
 and gratuities now authorized by existing law 
 are not changed hereby, except as otherwise 
 specified in this act. ' ' 
 
 Mates who are honorably discharged from the 
 Nav^y at the expiration of their enlistment and 
 reenlist in the rating of mate within four months 
 from such discharge are entitled to the four 
 months' gratuity pay provided by section 1573 
 of the Revised Statutes as amended by the act 
 of March 3, 1899, section 16 (30 Stat., 1008), 
 such honorable-discharge gratuity to be com- 
 puted on the pay they were receiving at the 
 time of their discharge (14 Comp. Dec, 457). 
 By act of May 18, 1920, section 10 (41 Stat., 
 603), it was provided that "any enlisted man 
 or apprentice seaman who shall reenlist in the 
 Navy within one year from the date of his dis- 
 
 800 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1556. 
 
 charge therefrom shall, upon such reenlist- 
 ment, be entitled to and shall receive the same 
 benefits as are now authorized by law for reen- 
 listment mthin four months from date of last 
 discharge from the service: Provided, That this 
 section shall become inoperative six months 
 after the date of the approval of this act." 
 
 Because of the prohibition contained in sec- 
 tion 1558, Revised Statutes, mates are not 
 entitled, upon reenlistment in accordance wath 
 section 1573, Revised Statutes, as amended by 
 the act of March 3, 1899, section 16 (30 Stat., 
 1008), to continuous-service pay as provided 
 therein for enlisted men who reenlist pursuant 
 to said statutes (14 Oomp. Dec, 457); and for 
 the same reason, the pay fixed for mates by the 
 act of May 18, 1920, is not to be increased for 
 continuous service (27 Comp. Dec, 175). 
 
 Mates being specifically excepted from the 
 provisions of section 1569, Revised Statutes, 
 under authority of which extra compensation 
 for good-conduct medals and bars, seaman 
 gunner's certificates, and petty officer's certifi- 
 cates, is provided, they are not entitled to such 
 extra compensation (14 Comp. Dec, 457). 
 Nor does the act of May 18, 1920, operate to 
 grant to mates in the Navy the right to perma- 
 nent additions to their base pay that are au- 
 thorized for enlisted men of the Navy gener- 
 ally under General Order No. 34 for continu- 
 ous service and for good-conduct medals. 
 Inasmuch as mates possessed no right to said 
 permanent additions to their pay previously 
 to May 18, 1920, differing in this respect from 
 enlisted men generally, they could not become 
 invested by the act of May 18, 1920, with a 
 right to said permanent additions without ex- 
 press legislation to that effect. The mere 
 change of their base pay rating, along with that 
 of changes in the base pay of other enlisted 
 ratings, did not in itself confer on mates the 
 independent right to said permanent additions 
 to base pay which the other enlisted ratings 
 already possessed. (27 Oomp. Dec, 175.) 
 
 For other decisions, see note to section 1408, 
 Revised Statutes. 
 
 As to allowances of mates, see notes to sections 
 1558 and 1578, Revised Statutes. 
 
 15. Fleet officers. — See notes to sections 
 1373, 1382, and 1393, Re\'ised Statutes, on the 
 general subject of fleet officers. 
 
 An officer commissioned after July 1, 1899, is 
 not entitled to the pay provided by section 
 1556, Revised Statutes, for fleet engineers. 
 The pay provided by that section, including 
 the pay of fleet engineers, is the old Navy pay, 
 and this old Navy pay is reserved to officers 
 who were in the Navy on June 30, 1899. As to 
 other commissioned officers of the line and of 
 the Medical and Pay Corps, the act of March 3, 
 1899, section 13, provided that they shall re- 
 ceive the "same" pay and allowances, except 
 forage, as officers of the corresponding rank in 
 the Army. The word "same'' in this provi- 
 sion means "identical, not different or other." 
 (Comp. Dec, Aug. 14, 1914, 150 S. and A. 
 Memo., 2761; see above, under "1. General 
 Rule." Compare, U. S. v. Thomas, 195 U. S., 
 418, 421, holding that the act of March 3, 1899, 
 extended to naval officers only the general pay 
 authorized for the Army, and not the pay of 
 Army officers "for services in particular places 
 
 or under special circumstances"; and see 12 
 Comp. Dec, 185, 188, holding that "an engineer 
 of the fleet is a member of the fleet staff of a 
 flag officer, and as such has special duties to per- 
 form, in consideration of which he receives in- 
 creased pay. The position is somewhat analo- 
 gous in this respect to that of aid, who is a mem- 
 ber of the personal staff of the flag officer, and 
 who receives additional pay for the additional 
 services performed as such.") 
 
 The act of June 7, 1900 (31 Stat., 697), which 
 provides that the naval personnel act of March 
 3, 1899, section 13, shall not operate so as to 
 reduce the pay which but for the passage of 
 that act would have been received by any 
 commissioned officer at the time of its passage 
 or thereafter, extends to pay which officers may 
 subsequently become entitled to receive and to 
 the pay of a fleet engineer as prescribed by sec- 
 tion 1556, Revised Statutes. (Denig v. U. S., 
 37 Ct. Cls., 383.) 
 
 As to increased pay for special service as aid, 
 see note below under this section. 
 
 16, Medical directors and inspectors; 
 pay directors and inspectors. — See notes to 
 sections 1368, 1376, 1474, and 1475, Revised 
 Statutes. 
 
 Under the acts of May 13, 1908, and August 
 29, 1916, all officers of the Navy receive the 
 same pay and allowances according to rank and 
 length of service, except in certain cases where 
 the old Navy pay is higher than that provided 
 for officers of the same rank and longevity. 
 (See above, under "1. General Rule.") 
 
 Medical directors and pay directors have the 
 rank of rear admiral and captain in each grade, 
 and medical inspectors and pay inspectors have 
 the rank of commander. (See notes to sections 
 1474_and 1475, _R. S.) As to the pay of rear 
 admirals, captains, and commanders, see notes 
 above, under this section. 
 
 17. Surgeons, paymasters, and chief 
 engineers. — See notes to sections 1368, 1376, 
 1390, 1474-1476, Revised Statutes. 
 
 Under the acts of May 13, 1908, and August 
 29, 1916, all officers of the Navy receive the 
 same pay and allowances, according to rank and 
 length of service, except in certain cases where 
 the old Navy pay is higher than that provided 
 for officers of the same rank and longevity. 
 (See above, under "1. General Rule.") 
 
 Officers of the Medical Corps below the grade 
 of medical inspector, viz, surgeons, passed 
 assistant surgeons, and assistant surgeons, have 
 the rank of lieutenant commander, lieutenant, 
 and lieutenant (junior grade), depending upon 
 their length of service, original appointments 
 being made with the rank of lieutenant (junior 
 grade), and thereafter advancements in rank 
 up to and including the rank of lieutenant com- 
 mander being made "with the officers of the 
 line with whom or next after whom they take 
 precedence under existing law. " (See note to 
 sec 1474, R.S.) 
 
 Officers of the Supply Corps below the grade of 
 pay inspector, viz, paymasters, passed assistant 
 paymasters, and assistant paymasters, have 
 the rank of lieutenant commander, lieutenant, 
 lieutenant (junior grade), and ensign, depend- 
 ing upon their length of service, original ap- 
 pointments being made with the rank of ensign, 
 and thereafter advancements in rank up to and 
 
 801 
 
Sec. 1656. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 including the rank of lieutenant commander be- 
 ing made ''Avith the officers of the line w-ith 
 whom or next after whom they take precedence 
 under existing law. " (See note to sec. 1475, 
 R. S.) 
 
 The Engineer Corps was abolished by the 
 Navy personnel act of March 3, 1899 (30 Stat., 
 1004). (See note to sec. 1390, R. S.) 
 
 As to the pay of the various ranks, see notes 
 above, under this section. 
 
 ''Mounted pay" is not an allowance but pay 
 proper; the officer to whom it is assigned by 
 statute receives it whether he is actually 
 mounted or not; where a surgeon in the Army is 
 entitled to it, a surgeon in the Navy receiving 
 Army pay under the act of March 3, 1899, is 
 entitled to it also. (Richardson v. U. S., 38 
 Ct. (1s., 182.) 
 
 18. Passed assistant surgeons, passed 
 assistant paymasters, and first assistant 
 engineers.- — See note above, under " 17. Sur- 
 geons, paymasters, and chief engineers." See 
 also note' to sections 1368 and 1371, Revised 
 Statutes, concerning the status and pay of passed 
 assistant surgeons. 
 
 19. Assistant surgeons, acting assistant 
 surgeons, assistant paymasters, second 
 engineers.- — See note above, under ''17. Sur- 
 geons, pajTnasters, and chief engineers. " 
 
 Under section 13 of the Navy personnel act of 
 March 3, 1899 (30 Stat., 1007), and the acts of 
 Jime 7, 1900 (31 Stat., 697), March 2, 1907 (34 
 Stat., 1167), and May 13, 1908 (35 Stat., 127), the 
 pay of acting assistant surgeons was enhanced 
 and assimilated to that of assistant surgeons and 
 did not remain fixed as regulated by section 
 1556, Revised Statutes. The rank of assistant 
 surgeons having been raised from ensign to 
 lieutenant (junior grade), an acting assistant 
 em'geon was entitled to pay and allowances pro- 
 vided by law for assistant surgeons at the time 
 his services as acting assistant surgeon were 
 rendered, and where he was allowed pay and 
 allowances only at the rate fixed for assistant 
 surgeons at the time the act of May 4, 1898 (30 
 Stat., 369, 380), was passed, he was entitled to 
 recover the difference. (Plummer v. U. S., 
 224 U. S. 137, overruling Taylor v. U. S., 38 Ct. 
 Cls., 155, and Nelson v^\J. S., 41 Ct. Cls., 157. 
 See note to sec. 1411, R. S.) 
 
 By act of May 18, 1920 (41 Stat., 602), th^ pay 
 of acting assistant surgeons was increased $600 
 per annum, "in addition to all pay and allow- 
 ances now allowed by law, " such increase to 
 commence January 1, 1920, and to remain effec- 
 tive "until the close of the fiscal year ending 
 June 30, 1922. " 
 
 20. Assistant surgeons qualified for pro- 
 motion.- — See note above, under "17. Sur- 
 geons, paymasters^ and chief engineers. " See 
 also notes to sections 1368 and 1371, Revised 
 Statutes, concerning the status of passed assist- 
 ant surgeons, and the promotion of assistant 
 surgeons. 
 
 21-22. Naval constructors; assistant 
 naval constructors. — Under the acts of May 
 13, 1908, and August 29, 1916, afl officers of the 
 Navy receive the same pay and allowances, 
 according to rank and length of service, except 
 in certain cases where the old Navy pay is higher 
 than that provided for officers of the same rank 
 
 and longevity. (See above, under "1. General 
 Rule. '•) 
 
 As to the rank of naval constructors and as- 
 sistant naval constructors, see note to se<-tion 
 1477, Revised Statutes; as to the organization 
 of the Construction Corps, see notes to sections 
 1402 and 1403, Revised Statutes; as to the pay 
 of the various ranks, see notes above, under 
 this section. 
 
 23. Chaplains and acting chaplains. — 
 See notes to sections 1395-1398 and 1479, Re- 
 vised Statutes. 
 
 By act of June 29, 1906 (34 Stat., 554), it was 
 provided that "all chaplains now in the Navy 
 above the grade of lieutenant shall receive the 
 pay and allowances of lieutenant commander 
 in the Navy according to length of service under 
 the provisions of law for that rank, and all chap- 
 lains now in the Navy in the grade of lieutenant 
 shall receive their present sea pay when on 
 shore duty." The same act further provided 
 that ' ' naval chaplains hereafter appointed shall 
 have the rank, pay, and allowances of lieu- 
 tenant (junior grade) in the Navy until they 
 shall have completed seven years of service, 
 when they shall have the rank, pay, and allow- 
 ances of lieutenant in the Navy ; and lieutenants 
 shall be promoted, whenever vacancies occur, 
 to the grade of lieutenant commander, which 
 shall consist of five numbers, and when so pro- 
 moted shall receive the ranlc, pay, and allow- 
 ances of lieutenant commander in the Navy: 
 Provided further, That nothing herein contained 
 shall be held or construed to increase the num- 
 ber of chaplains as now authorized by law or to 
 reduce the rank or pay of any now serving." 
 
 By act of May 13, 1908 (see above, under 
 "1. General rule"), all officers of the Navy 
 were given the same pay and allowances, ac- 
 cording to rank and length of service, %vith the 
 limitation that "the pay and allowances of 
 chaplains in the Navy shall in no case exceed 
 that provided for lieutenant commanders," and 
 the saving clause that "nothing herein shall be 
 construed so as to reduce the pay or allowances 
 now authorized by law for any commissioned, 
 warrant, or appointed officer * * * of the 
 active or retired lists of the Navy." 
 
 By act of June 30, 1914 (38 Stat., 404), the 
 grade of acting chaplain was created with the 
 rank, pay, and allowances of lieutenant (junior 
 grade), and provision was made for promotion 
 of acting chaplains to the grade of chaplain 
 with the rank of lieutenant (junior grade), and 
 for the advancement of chaplains to higher 
 ranks to and including the rank of captain, 
 with the proviso ' ' that no provision of this sec- 
 tion shall operate to reduce the rank, pay, or 
 allowances that would have been received by 
 any person in the Navy except for the passage 
 of this section." (See note to sec. 1479, R. S.) 
 By act of August 29, 1916 (39 Stat., 581), it 
 was provided that ' 'hereafter all commissioned 
 officers of the active list of the Navy shall re- 
 ceive the same pay and allowances according 
 to rank and length of service," omitting the 
 Limitation contained in the act of May 13, 1908, 
 with reference to the pay of chaplains. Also 
 in the same act it was pro\dded that "nothing 
 contained in this act shall be construed to re- 
 duce the rank, pay, or allowances of any officer 
 
 802 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1556. 
 
 of the Navy or Marine Corps as now provided 
 bylaw." (See above, under "1. General rule.") 
 The effect of the act of August 29, 1916, was to 
 repeal the limitation in the act of May 13, 1908, 
 respecting the pay and allowances of chaplains, 
 and to give to chaplains above the rank of 
 lieutenant commander the pav and allowances 
 of their rank. (Comp. Dec, May 23, 1917, 195 
 S. and A. Memo., 4251.) 
 
 As to rank of chaplains, see note to section 
 1479, Re\dsed Statutes. 
 
 As to the pay of the various ranks, see notes 
 above, under this section. 
 
 24. Professors of mathematics, civil 
 engineers, and assistant civil engineers. — 
 See notes to sections 1399-1401 and 1480, Re- 
 vised Statutes, respecting professors of mathe- 
 matics; and notes to sections 1413 and 1478, 
 Re\'ised Statutes, respecting ci\al engineers 
 and assistant civil enarineers. 
 
 Under the acts of May 13, 1908, and August 29, 
 1916, all officers of the Navy receive the same 
 pay and allowances according to rank and 
 length of ser\dce, except in certain cases where 
 the old Navy pay is higher than that pro^'ided 
 for officers of the same rank and longevity. 
 (See above, under "1. General rule.") 
 
 As to rank of professors of mathematics, see 
 section 1480, Re\dsed Statutes, and note there- 
 to; as to rank of ci\-il engineers and assistant 
 civil engineers, see note to section 1478, Re- 
 \dsed Statutes. 
 
 As to the pay of the various ranks, see notes 
 above, under this section. 
 
 Further appointments to the corps of profes- 
 sors of mathematics were prohibited by act of 
 August 29, 1916 (39 Stat., 577), which act pro- 
 vided that "that corps shall cease to exist upon 
 the death, resignation, or dismissal of the 
 officers now carried in that corps on the active 
 and retired lists of the Navy." 
 
 25. Warrant officers, acting warrant 
 officers, and commissioned warrant offi- 
 cers. — See notes to sections 1405-1409, Re- 
 vised Statutes. As to allowances of warrant 
 officers, see note to section 1558, Re\ised Stat- 
 utes. 
 
 By act of June 17, 1898 (30 Stat., 474, 475), 
 the "grade of pharmacist was created in the 
 Hospital ("orps of the Navy, 'Snth the i-ank, 
 pav, and privileges of warrant officers." 
 
 By act of March 3, 1899, section 12 (30 Stat., 
 1007), it was pro^•ided that "the pay of boat- 
 swains, gunners, carpenters, and sailmakers 
 shall be the same as that now allowed by law." 
 
 By the same act of March 3, 1899, sections 14 
 and 15 (30 Stat., 1007, 1008), the gi-ade of war- 
 rant machinist was authorized with the pro\'i- 
 sion that the pay of that grade "shall be the 
 same as that of warrant oflicers" ; and that 
 "warrant machinists shall receive at first an 
 acting appointment, which may be made per- 
 manent under regulations established by the 
 Navy Department for other warrant officers." 
 By cict of March 3, 1909 (35 Stat., 771), the title 
 of "warrant machinist" was changed to "ma- 
 chinist." 
 
 By act of May 13, 1908 (35 Stat., 128), it was 
 pro\'ided that "the pay of all warrant officers 
 * * * is hereby increased twentv-five per 
 cent." 
 
 By act of March 3, 1915 (38 Stat., 942), the 
 grade of pay clerk was established as a grade of 
 warrant officers in the Na\y, appointments 
 thereto being regularly made by promotion 
 from the grade of acting pay clerk,' also created 
 by that act, and it was pro\ided that "pay 
 clerks and acting pay clerks shall have the 
 same pay, allowances, and other benefits as are 
 now or may hereafter be allowed other warrant 
 officers and acting warrant officers, resrec- 
 tively." ' 
 
 By act of August 29, 1916 (39 Stat., 572), it 
 was provided that "the pharmacists now in the 
 Hospital Corps of the United States Navy or 
 hereafter appointed therein in accordance Avith 
 the provisions of this act shall have the same 
 rank, pay, and allowances as are now or may 
 hereafter be allowed other warrant officers." 
 
 By the same act of August 29, 1916 (39 Stat., 
 578), it was pro\'ided that "warrant officers 
 shall be allowed such leave of absence, with 
 full pay, as is now or may hereafter be allowed 
 other officers of the United States Navy." 
 Under this pro^'ision, a warrant officer granted 
 leave of absence from duty at sea is entitled 
 to full pay at the rate received by him while on 
 sea duty; the words "full pay," as used in this 
 pro\ision, "undoubtedly mean that warrant 
 officers are to be granted leave without any 
 reduction in the pay they are recei\ang at the 
 time leave is granted." (23 Comp. Dec, 200; 
 but note that the "other officers of the United 
 States Navy," referred to in this enactment, 
 do not, while on leave of absence from sea 
 duty, receive full pay at the rate received by 
 them while on sea duty: see 18 Comp. Dec, 
 340, and see note below as to leave of absence 
 pay.) 
 
 By act of March 4, 1917 (39 Stat., 1181), it 
 was provided that "hereafter the pay of warrant 
 officers while on shore duty during the fourth 
 three vears' sersdce shall be $1,750 per annum." 
 
 By act of July 11, 1919 (41 Stat., 140), war- 
 rant officers on shore duty beyond the con- 
 tinental limits of the United States shall, 
 while so ser^'ing and from the time of departure 
 from and until the time of return to said limits 
 under orders to or from such foreign-shore duty, 
 receive the same pay as is now or may be au- 
 thorized by law for warrant officers on sea duty. 
 Prior to this enactment warrant officers were 
 not entitled to increased pav for shore duty 
 bevond seas. (Ollif v. U. S.,'46 Ct. Cls., 349; 
 14 Comp. Dec, 882.) 
 
 The grade of saUmaker has become obsolete, 
 no appointment thereto ha\ing been made 
 since May 4, 1888. (See note to sec 1405, 
 R. S.) 
 
 Under section 1556, Re^'i8ed Statutes (clause 
 25), as amended by the foregoing statutes, thf 
 pay of warrant officers, that is, boatswains, 
 gunners, carpenters, machinists, pharmacists, 
 and pay clerks, is as follows: During the first 
 three years after date of appointment, when at 
 sea or' on foreign-shore dutv, $1,500; on shore 
 duty, $1,125; on waiting orders, $875; during 
 the "second three years after such date, when at 
 sea or on foreign-shore dutv, $1,625; on shore 
 dutv, $1,250; on waiting orders, $1,000; during 
 the 'third three years after such date, when at 
 sea or on foreign shore duty, $1, 750; on shore 
 
 h 
 
 803 
 
Sec. 1556. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 duty, ?l,rr25; on waitinc; orders, $1,125; during 
 the fourth throe years after such date, when at 
 sea or on foreign-shore duty, $2,000; on shore 
 duty, $1,750; on waiting orders, $1,250; after 
 12 years from such date, when at sea or on for- 
 eign-shore duty, $2,250; on shore duty, $2,000; 
 on waiting orders, $1,500. (The "waiting or- 
 ders" pay as gi\'en in this paragraph is also the 
 leave pay which warrant oflicers are in practice 
 allowed while on leave of a})sence in excess of 
 the time authorized by law \nth full pay.) 
 Acting pay clerks, and machinists holding acting 
 appointments as such, as authorized by statute, 
 and boatswains, gunners, and carpenters hold- 
 ing acting appointments as authorized by 
 Navy Regulations, receive the same rates of 
 pay as above set forth for warrant officers. 
 (See note to sec. 1410, R. S., as to acting officers.) 
 
 By act of May 18, 1920 (41 Stat., 602), the 
 pay of warrant officers of the Navy was in- 
 creased $240 per annum, "in addition to all 
 pay and allowances now authorized by law, " 
 such increase to commence January 1, 1920, 
 and to remain effective "until the close of the 
 fiscal year ending June 30, 1922. " 
 
 Special pro\asions as to pay of retired warrant 
 officers while employed on active duty are con- 
 tained in act of April 10, 1918 (40 Stat., 51 G). 
 
 By act of March 3, 1899, section 12 (30 Stat., 
 1007), chief boatswains, chief gunners, chief 
 carpenters, and chief sailmakers were to "rank 
 with, but after, ensign," and to receive" the 
 same pay and allowances as are now allowed a 
 second lieutenant in the Marine Corps. " 
 
 By act of May 13, 1908 (see above, under "1. 
 General rule"), it was provided that "here- 
 after all commissioned officers of the active list 
 of the Navy shall receive the same pay and 
 allowances according to rank and length of 
 eer\'ice, " with the saving clause that "nothing 
 herein shall be construed so as to reduce the 
 pay or allowances now authorized by law for 
 any commissioned, warrant, or appointed offi- 
 jjgj. * * * q{ ^YiQ active or retired lists of 
 the Na\y . " Under this act chief boatswains, 
 chief gunners, chief carpenters, and chief sail- 
 makers, being commissioned officers and hav- 
 ing the rank of ensign, became entitled to the 
 same pay and allowances as ensigns in the 
 Navy. (14 Comp. Dec, 883.) As to the pay 
 of ensigns, see notes above, under this section. 
 
 By act of March 3, 1909 (35 Stat., 771), it was 
 provided that "no warrant officer, heretofore or 
 hereafter promoted six years from date of war- 
 rant, shall suffer a reduction in pay which, but 
 for such promotion, would have been received 
 by him. " Under this act the pay which is not 
 to be reduced is the pay attaching to the war- 
 rant officer in the lower grade at the time the 
 officer vacates it upon promotion to a higher 
 grade, and does not include any additional 
 pay that may thereafter be made a part of the 
 warrant office thus vacated by subsequent 
 legislation. (26 Comp. Dec, 935.) 
 
 By the same act of March 3, 1909 (35 Stat., 
 771), it was provided that chief machinists 
 shall "have the same pay and allowances as 
 are allowed chief boatswains, chief gunners, 
 chief carpenters, and chief sailmakers. " 
 
 By act of August 22, 1912 (37 Stat., 345), it 
 was provided that chief pharmacists shall ' ' have 
 the rank, pay, and allowances of chief boat- 
 
 swains. " By act of August 29, 1916 (39 Stat., 
 572, 573), it was provided that chief pharma- 
 cists shall "have the same rank, pay, and 
 allowances as now or may hereafter be allowed 
 other commissioned warrant officers. " 
 
 By act of March 3, 1915 (38 Stat., 942), it was 
 provided that chief pay clerks shall "have 
 the rank, pay, and allowances of chief boat- 
 swains. " 
 
 By act of August 29, 1916 (39 Stat., 578), it 
 was provided that "hereafter chief boatswains, 
 chief gunners, chief machinists, chief carpen- 
 ters, chief sailmakers, chief pharmacists, and 
 chief pay clerks, on the active list with credit- 
 able records, shall, after six years from date of 
 commission, receive the pay and allowances 
 that are now or may hereafter be allowed a 
 lieutenant (junior grade), United States Navy: 
 Provided, That chief boatswains, chief gunners, 
 chief machinists, chief carpenters, chief sail- 
 makers, chief pharmacists, and chief pay 
 clerks, on the active list with creditable records, 
 shall, after 12 years from date of commission, 
 receive the pay and allowances that are now or 
 may hereafter be allowed a lieutenant. United 
 States Navy. " Similar provisions as to pay of 
 retired chief warrant officers while employed 
 on active duty are contained in act of April 10, 
 1918 (40 Stat., 516.) 
 
 "Creditable records" within the meaning of 
 the act of August 29, 1916, relating to the pay 
 of commission warrant officers, does not import 
 distinguished records, but requires only that a 
 record be such that upon examination for pro- 
 motion it would be found satisfactory. In 
 passing upon the creditability of an officer's 
 record in these cases consideration should be 
 given to all matters therein disclosed, whether 
 pertaining to his mental, moral, or professional 
 qualifications, and it is necessary that an officer 
 be satisfactory in all these respects if his record 
 is to be deemed creditable. (C. M. O. 33, 1916, 
 p. 6, citing file 17789-27, Sept. 21, 1916.) 
 
 In determining whether the record of- a com- 
 missioned warrant officer is creditable, the in- 
 vestigation should ordinarily be limited to a 
 scrutiny of his record in his present grade, and 
 his prior record in the service should not ba 
 taken into consideration except in the cases 
 where under existing law this would be done 
 in determining his fitness for promotion. 
 (C. M. O. 33, 1916, p. 6, citing file 17789-27, 
 Sept. 21, 1916.) _ 
 
 When a commissioned warrant officer has the 
 necessary length of service, and it has been 
 decided by the Navy Department that his 
 record is creditable, this definitely fixes the 
 rate of pay and allowances to which he is 
 entitled, and, in the event of his record ceasing 
 to be creditable, his pay and allowances can 
 not be affected except by means of disciplinary 
 action as in the cases of all officers. (C. M. O. 
 33, 1916, p. 6, citing file 17789-27, Sept. 21, 
 1916.) 
 
 The purpose of the law of August 29, 1916, 
 was clearly to give additional pay to commis- 
 sioned warrant officers in the nature of the 
 longevity increase to which officers of the 
 Navy are generally entitled. Congress did not 
 intend that, the right to increased pay and 
 allowances once having accrued, the benefit 
 thereof should be lost upon an extra judicial 
 
 804 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1556. 
 
 determination by the Navy Department that 
 the officer's record had ceased to be creditable, 
 but rather Congress contemplated that any- 
 thing of a discreditable nature thereafter occur- 
 ring should be disposed of by means of the 
 disciplinary instrumentalities which it has 
 placed under the control of the Secretary of 
 the Navy, and which may and should be re- 
 sorted to for the purpose of reducing the pay 
 and allowances of any officer, or dismissing 
 him from the Navy, or otherwise punishing 
 him as mav be appropriate. (File 17789-27, 
 Sept. 21, 1916.) 
 
 \\1ien the record of a commissioned warrant 
 officer has been held by the Navy Department 
 to be creditable, and a certificate to that effect 
 issued, but subsequently it is established by 
 additional e^ddence, unknown to the depart- 
 ment at the time the certificate was issued, 
 that said certificate was clearly erroneous and 
 that in fact his record was not creditable on the 
 date thereof, because of serious offenses com- 
 mitted by him prior thereto of which he was 
 convicted by general court-martial subsequent 
 to the issuance of the certificate, held, that the 
 cancellation of the certificate was authorized, 
 and that the officer 's request that it be retm'ned 
 must accordingly be denied; that the certifi- 
 cate was not cancelled because of matters 
 occurring subsequent to its issuance, and the 
 case therefore is not one covered by the deci- 
 sion of September 21, 1916 (above cited). 
 (File 17789-27: 21, Feb. 28, 1919.) 
 
 The question whether an oflicer's record is 
 creditable ^\ithin the meaning of the statute 
 must be determined in each specific case as it 
 arises, and such determination must be that of 
 the Secretary of the Na\'y'. The law does not 
 prescribe what method shall be pursued by the 
 Secretary in ascertaining the fact of credita- 
 bility, and this matter is accordingly left to the 
 Secretary's discretion, in the exercise of which 
 he may avail himself of any appropriate ad- 
 ministrative instrumentality. Suggested, that 
 when a commissioned warrant officer has the 
 necessaiy length of ser\dce, his entire record in 
 his existing grade be referred to an examining 
 board for report as to whether or not in the 
 opinion of the board his record is creditable, the 
 board being governed, in arriving at its conclu- 
 sion, by the same considerations as would 
 influence it in determining whether or not the 
 officer in question would be qualified on his 
 record if undergoing examination for promo- 
 tion. The personal appearance of the officer 
 before the board would not be required by law, 
 and as an administrative matter might be un- 
 desirable as well as expensive and inconvenient. 
 The board might, however, if deemed advis- 
 able, call upon the officer to submit evidence, 
 or afford him an opportunity to submit a state- 
 ment for its consideration. The Secretary 
 would be empowered to approve or disapprove 
 the board 's report, or to make an independent 
 decision based upon the evidence adduced. 
 (File 17789-27, Sept. 21, 1916; see also Gen. 
 Order No. 247, Nov. 4, 1916.) 
 
 Whether or not a commissioned warrant offi- 
 cer's record is creditable is a question of fact to 
 be determined by the examining board in any 
 case referred to it for report. The period of 
 "twelve years from date of commission," is 
 
 indivisible and, if his record is not creditable 
 considering the entire period, he is not entitled, 
 on a finding that his record was creditable for 
 the last six years of the period, to the pay and 
 allowances of a lieutenant (junior grade). (File 
 17789-27:15, Apr. 22, 1918.) 
 
 It is not essential that a commissioned war- 
 rant oflicer should have had a creditable record 
 at all times for a period of six years from the 
 date of his commission to entitle him to the 
 pay and allowances of a lieutenant (junior 
 grade), or that he should have had a creditable 
 record at all times for a period of 12 years from 
 the date of his comaiission to entitle him to the 
 pay and allowances of a lieutenant. The ques- 
 tion as to whether his record is creditable is to 
 be determined as of the date his record if exam- 
 ined by the board, either at the end of six 
 years from the date of his coromission, or at the 
 end of 12 years fi'om the date of commisssion. 
 The question Avhether, considered as a whole, 
 his record is creditable is one for the board to 
 determine; the law does not require that he 
 should have had six years' creditable service, 
 or 12 years' creditable service, as the case may 
 be, but that, at the end of six years, or of 12 
 years, his record must be creditable before he 
 can receive the pay and allowances of a lieuten- 
 ant (junior grade) or a lieutenant, as the case 
 may be. (File 17789-27:15, Apr. 22, 1918.) 
 
 As to rates of pay received by lieutenants 
 (junior grade), and lieutenants, see notes above 
 under this section. 
 
 As to allowances of warrant officers and com- 
 missioned warrant officers, see notes to sections 
 1487 and 1558, Revised Statutes. 
 
 26. Secretaries. — See section 1367, Re- 
 vised Statutes, and note thereto. 
 
 By act of May 4, 1878 (20 Stat., 50), it waa 
 provided that "on and after the first day of July, 
 eighteen hundred and seventy-eight, there 
 shall be no appointments made from civil life 
 of secretaries or clerks to the Admiral, or Vice 
 Admiral, when on sea service, commanders of 
 squadrons, or of clerks to commanders of vessels; 
 and an officer not above the grade of lieutenant 
 shall be detailed to perform the duties of secre- 
 tary to the Admiral or Vice Admiral, when on 
 sea service, and one not above the grade of 
 master [now lieutenant (junior grade) : see notes 
 above under this section] to perform the duties 
 of clerk to a rear admiral or commander, and one 
 not above the grade of ensign to perform the 
 duties of clerk to a captain, commander, or 
 lieutenant commander when afloat." 
 
 The pay of secretary of the Naval Academy 
 has been increased from time to time by appro- 
 priations contained in the annual naval appro- 
 priation acts. See, for example, naval appro- 
 priation act approved June 4, 1920 (41 Stat., 
 828), which contains, under the caption, "Pay, 
 Naval Academy," the following item: "Secre- 
 tary of the Naval Academy, $2,750." 
 
 The position of secretary to the Admiral was 
 necessarily in abeyance until the grade of Ad- 
 miral was revived. However, when the grade 
 of Admiral was revived, the provisions of law 
 relating to the secretary to the Admiral became 
 again operative. Not being a conxmissioned 
 officer, his pay was not affected by the Navy 
 personnel act of March 3, 1899. Accordingly, 
 he is entitled to a salary of $2,500 per armiun 
 
 805 
 
Sec. 1556. 
 
 PL 2. RE VISED STAT UTES . 
 
 The Navy. 
 
 under section 1550. Revised Statutes, and to 
 the allowances of a lieutenant in the Navy, 
 under section 13()7. ((5 Comp. Dec, 828.) 
 
 See note to section VM\2, Revised Statutes, 
 and notes above, under Ibis section, as to Ad- 
 mirals and Vice Admirals in the Navy. 
 
 27. Clerks to commanders of squadrons, 
 ©tc— See act of May 4, 1878 (20 Stat., 50), 
 quoted abov(% under "Secretaries." 
 
 28. Clerks to commandants of yards and 
 stations. — See section 1416, Revised Statutes, 
 and note thereto. 
 
 I>y naval appropriation act of March 3, 1909 
 (35 Stat., 754), the Secretary of the Navy was 
 authorized to fix the pay of the "clerical, 
 draftinc;, inspection, and messenger force at 
 navy yards and naval stations, " on a per annum 
 or per diem basis, aa he may elect; the same act 
 repealed "so much of section fifteen hundred 
 and fifty -six of the Revised Statutes as relates 
 to j)ay of clerks to commandants of navy yards 
 and naval stations," and omitted the specific 
 provision theretofore made in the annual naval 
 appropriation act, under "Pay of the Navy," 
 for such clerks. 
 
 29-34. Clerks to paymasters, etc. — The 
 provisions of section 1556, Revised Statutes, 
 fixing the pay of clerks to paymasters, was re- 
 pealed by the act of May 13, 1908 (35 Stat., 127), 
 which act substituted for the pay specified in 
 said section a provision that "all paymasters' 
 clerks shall, while on duty, receive the same 
 pay and allowances as warrant officers of like 
 length of ser\dce in the Navy " ; which said pro- 
 vision in the act of May 13, 1908, was amended 
 by act of June 24, 1910 (36 Stat., 606), so as to 
 read that "all paymasters' clerks shall, while 
 holding appointment in accoi'dance ^\'ith law, 
 receive the same pay and allowances and have 
 the same rights of retirement as warrant officers 
 of Uke length of service in the Navy." The 
 saving clause in said act of May 13, 1908, that 
 "nothing herein shall be construed so as to 
 reduce the pay or allowances now authorized 
 by law for any commissioned, warrant, or ap- 
 pointed officer or enhsted man of the active or 
 retired lists of the Navy," did not apply to a 
 paymaster's clerk appointed after the enact- 
 ment of that act; accordingly, a clerk to the 
 paymaster at the navy yard, Mare Island, who 
 was appointed after May 13, 1908, was held not 
 entitled to the pay provided by section 1556, 
 Revised Statutes, for that position, but w^as 
 correctly allowed pay at the lower rate provided 
 by law for a warrant officer of like length of 
 service in the Navy. (Jones v. U. S., 50 Ct. 
 Cls., 344.) 
 
 By act of March 3, 1915, the grades of acting 
 pay clerk, pay clerk, and chief pay clerk were 
 established, and provision was made for the 
 appointment of all paymasters' clerks then in 
 the service to one of said grades. As to the pay 
 and allowances of acting pay clerks, pay clerks, 
 and chief pay clerks, see notes above, under 
 "warrant officers, acting warrant officers, and 
 commissioned warrant officers." 
 
 35. Cadet eng^eers. — ^The appointment 
 of cadet engineers was prohibited by act of 
 August 5, 1882 (22 Stat., 285). See note to 
 section 1522, Revised Statutes. 
 
 36. Dental Corps; and Nurse Corps 
 (Female).— By act of August 29, 1916 (39 
 
 Stat., 573, 574), as amended and reenacted by 
 act of July 1, 1918 (40 Stat., 708-710), it was 
 provided that officers of the Dental Corps 
 (assistant dental surgeons, passed assistant 
 dental surgeons, and dental surgeons) shall 
 have the rank of lieutenant (junior grade), 
 lieutenant, and lieutenant commander, "and 
 shall receive the same pay and allowances as 
 officers of corresponding rank and length of 
 service in the Naval Medical Corps up to and 
 including the rank of lieutenant commander '' 
 and that "dental surgeons shall be eligible for 
 advancement in pay and allowances, but not 
 in rank, up to-and including the pay and allow- 
 ances of commander and captain, subject to 
 such examinations as the Secretary of the 
 Navy may prescribe, except that the num])er 
 of dental surgeons with the pay and allowances 
 of captain shall not exceed four and one-half 
 per centum and the number of dental surgeons 
 with the pay and allowances of commander 
 shall not exceed eight per centum of the total 
 authorized number of dental officers: Provided 
 further, That dental surgeons shall be eligible 
 for advancement to the pay and allowances of 
 commander and captain when their total 
 active service as dental officers in the Navy is 
 such that if rendered as officers of the Naval 
 Medical Corps, it would place them in the list 
 of medical officers with the pay and allowances 
 of commander or captain, as the case may be." 
 
 By the same act of August 29, 1916, it was 
 provided that ' ' the senior dental officer now at 
 the United States Naval Academy" shall have 
 * ' the grade of dental surgeon and the rank, pay, 
 and allowances of lieutenant commander.' 
 
 By the same it was further pro\dded that 
 "nothing herein contained shall be construed 
 to legislate out of the service any ofiicer now in 
 the medical department of the Navy or to re- 
 duce the rank, pay, or allowances now author- 
 ized by law for any officer of the Navy." 
 
 By act of May 18, 1920 (41 Stat., 602), the 
 pay of "acting assistant dental surgeons in the 
 Navy" was increased $600 per annum, "in ad- 
 dition to all pay and allowances now allowed 
 by law," such increase to commence January 
 1, 1920, and to remain effective "until the close 
 of the fiscal year ending June 30, 1922." (The 
 Navy Register of January 1, 1920, shows only 
 one "acting assistant dental surgeon," being 
 an officer appointed under the proAdsions of an 
 act of Congress approved August 22, 1912 (37 
 Stat., 344), which act was superseded by the 
 act of August 29, 1916, above cited, containing 
 a saving clause with reference to officers then 
 in the medical department not being thereby 
 legislated out of the service.) 
 
 The advancement of dental officers to the pay 
 and allowances of commander and captain 
 should be by the same method that medical 
 officers are promoted; i. e., by selection by the 
 same board of officers as selects medical 
 officers for advancement to the ranks of com- 
 mander and captain. No other board is quali- 
 fied to determine whether the ser\dce of dental 
 officers "is such that if rendered as officers of 
 the Naval Medical Corps, it would place them 
 in the list of medical officers with the pay and 
 allowances of commander or captain, as the 
 case may be." (File 2650^315:2, Aug. 29, 
 1919.) 
 
 806 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1556. 
 
 Nurse Corps, Female. — The superintendent, 
 chief nurses, and nurses of the Nurse Corps 
 (Female), U. S. Navy, shall respectively re- 
 ceive the same pay, allowances, emoluments, 
 and privileges as now or hereafter provided by 
 or in pursuance of law for the Nurse Corps 
 (Female) of the .irmy. (Act May 13, 1908, 35 
 Stat., 146.) The designation of the "Nurse 
 Corps (Female) " of the Army was changed to 
 "the Army Nurse Corps" by act of July 9, 1918, 
 Chapter V, section 1 (40 Stat., 879), which said 
 act also made pro\asion as to the pay and al- 
 lowances of the Army Nurse Corps. (See note 
 below.) 
 
 Reser\^e nurses of the Nurse Corps (Female) , 
 U. S. Naw, may be assigned to active duty 
 when the necessities of the service demand and 
 and when on such duty shall receive the pay 
 and allowances of nurses; but sliall receive no 
 compensation except when on active duty. 
 (Act May 13, 1908, 35 Stat., 146.) 
 
 Members of the Nurse Corps (Female), U. S. 
 Navy, shall hereafter be paid the same commu- 
 tation of quarters as is or may be allowed mem- 
 bers of the Nurse Corps of the Army. (Act 
 June 15, 1917, 40 Stat., 209.) It had previously 
 been pro\dded by act of June 24, 1910 (36 Stat. , 
 606), that the Secretary of the Nax-y, in his 
 discretion, is authorized to allow members of 
 the Nurse Corps (Female) of the Na\'y $15 per 
 month in lieu of quarters when Government 
 quarters are not available. 
 
 The annual pay of members of the Army 
 Nurse Corps was fixed by act of July 9, 1918, 
 Chapter V, section 4 (40 Stat., 879), as amended 
 by act of February 28, 1919 (40 Stat., 1211), 
 as follows: Superintendent, $2,400; assistant 
 superintendents and directors, $1,800; assistant 
 directors, $1,500; chief nurses, $360 in addition 
 to the pay of nurses; nurses, $720 for first three 
 years' ser\dce, $780 for second three years' ser- 
 vice, $840 for third three years' service, $900 for 
 fourth three years' ser\ice, $960 after 12 years' 
 ser\ice in said corps (including time of service 
 as contract nm'ses); reserve nurses, when on 
 active duty will receive the same pay as 
 nurses who have served in the corps for periods 
 corresponding to the full period of their active 
 service; all members of said corps, in addition 
 to the foregoing, $10 per month when ser\ing 
 beyond the contiilental limits of the United 
 States (excepting Porto Rico and Hawaii). 
 
 By act of May 18, 1920, section 4 (41 Stat., 
 602), it was pro\ided that "Commercing Janu- 
 ary 1, 1920, the pay * * * of meml^ers 
 of the Female Nurse Corps of the Army and 
 Navy is hereby increased 20 per centum;" 
 and by section 13 of the same act (41 Stat., 
 604) it was pro\ided that such increase "shall 
 remain effective until the close of the fiscal 
 year ending June 30, 1922, unless sooner 
 amended or repealed. " 
 
 Meml^ers of the Army Nurse Corps shall 
 be entitled to cumulative leave of absence 
 with pay at the rate of 30 days for each calen- 
 dar year of service in said corps, not exceed- 
 ing, however, 120 days at one time; and in 
 addition thereto sick leave not exceeding 30 days 
 in any one calendar year in cases of illness or 
 injm-y incurred in the line of dutv. (Act July 9, 
 1918,'Chapter V, section 5, 40 Stat., 879.) 
 
 Where a member of the Nurse Corps (Fe- 
 male) was upon her own request discharged, 
 but the commanding officer erroneously is- 
 sued a discharge stating that same was to take 
 effect from date thereof, contrary to the author- 
 ization fi'om the Bureau of Medicine and 
 Siu-gery as appro.ved by the Secretary of the 
 Navy for her discharge to take effect upon 
 the expiration of 74 days' accrued leave of 
 absence, held, that the words "from this date" 
 in the discharge must be disregarded as un- 
 authorized and ineffective; that the dis- 
 charge was otherwise legal and should be re- 
 garded as becoming effective on the date 
 specified in her application therefor as ap- 
 proved by the Surgeon General, the Bureau 
 of Navigation, and the Secretary of the Navy; 
 that if said nurse was absent from duty in the 
 meantime, such absence was by leave of the 
 head of the department and she is accord- 
 ingly entitled to pay for such period of author- 
 ized absence. (File 26477-87, Feb. 6, 1919, 
 citing Reinhard's Case, 10 Ct. Cls., 282.) 
 
 The act of July 9, 1918, relating to cumida- 
 tive leaves of absence, entitles members of 
 the Niu-se Corps (Female) to final leave, to 
 the amount accumulated and unused, not to 
 exceed 120 days, prior to honorable discharge. 
 (File 26477-87, Feb. 6, 1919, citing 23 Comp. 
 Dec, 192, 197; 9 Comp. Dec, 606; Hurlburt 
 V. U. S,, 30 Ct. Cls., 16: and U. S. v. Barringer, 
 188 U. S., 577, reversing Barringer v. U. S., 
 37 Ct. Cls., 1.) 
 
 It would seem that if cumulative leave of 
 absence were refused prior to final discharge, 
 the niu-se concerned would be entitled to 
 receive pay for such leave due but not granted; 
 however, this question not decided, but 
 should be presented to the accounting officers 
 if such a case should occur. (File 26477-87, 
 Feb. 6, 1919.) 
 
 The question of granting leave to members 
 of the Nurse Corps (Female) presents a matter 
 coming under the jurisdiction of the Navy 
 Department and not under the jurisdiction 
 of the Comptroller of the Treasury. (File 
 26477-102, Feb. 19, 1921.) 
 
 Members of the Army Nurse Corps shall 
 receive transportation and necessary ex- 
 penses when traveling under order and such 
 allowances of quarters and subsistence and, 
 during illness, such medical care as may be 
 prescribed in regulations by the Secretary 
 of War; and when at places where no public 
 quarters are available, commutation in lieu 
 thereof, and of heat and light therefor, at 
 such rates and upon such conditions as are 
 now or shall hereafter be provided by law. 
 (Act July 9, 1918, Chap. V, sec. 6, 40 Stat., 
 879.) It had previously been provided by 
 act of August 29, 1916 (39 Stat., 626), that 
 the superintendent of the Nurse Corps (Fe- 
 male) of the Army should receive such allow- 
 ances of quarters, subsistence, and medical 
 care during illness as may be prescribed in 
 regulations by the Secretary of War. 
 
 By Army appropriation act of May 22, 1917 
 (40 Stat., 50), pro\ision was made for com- 
 mutation of rations for members of the Nurse 
 Corps (Female) while on duty in hospital 
 at 40 cents per ration for the ensuing fiscal 
 
 807 
 
Sec. 1556. 
 
 PL 2. REVISED STATUTES.. 
 
 The Navy. 
 
 year; by Army appropriation act of June 5, 
 1920 (41 Stat.. 95(1), appropriation was made 
 for commutation in lieu of rations for members 
 of the Army Nurse t'orps while on duty in 
 hospital, without specifying the amount of 
 such commutation. 
 
 By act of June 4, 1920, section 10 (41 Stat., 
 767), it was provided that "hereafter the 
 members of the Army Nurse Corps shall have 
 relative rank as follows: The superintendent 
 shall have the relative rank of major; the as- 
 sistant superintendents, director, and assist- 
 ant directors, the relative rank of captain; 
 chief nurses, the relative rank of first lieu- 
 tenant; head niu-ses and muses, the relative 
 rank of second lieutenant; and as regards 
 medical and sanitary matters and all other 
 work witliin the line of their professional 
 duties shall have authority in and about 
 military hospitals next after the officers of 
 the Medical Department. The Secretary of 
 War shall make the necessary regulations 
 l^rescribing the rights and privileges con- 
 ferred by such relative rank." 
 
 The regulations made by the Secretary 
 of War prescribing the "rights and privileges" 
 confeiTed upon nurses by the relative rank 
 given them by the act of June 4, 1920, were 
 contained in War Department General Orders, 
 No. 49, of August 14, 1920, which provided, 
 among other things, the following: "8. 
 Nurses are entitled to the same allowances 
 and privileges, except mileage, as are pre- 
 scribed for commissioned officers of grades 
 corresponding to their relative rank, viz: 
 Commutation of quarters when quarters in 
 kind are not available; commutation of heat 
 and light; purchase pri\dleges; instance 
 privileges; gratuities; and in general all such 
 personal pii\T.leges and perquisites, not 
 specifically denied them, as go with commis- 
 sioned rank and are customarily enjoyed by 
 commissioned officers. 9. Pay and allowances 
 of nurses are set forth in Chapter V of the 
 act of Congress approved July 8, 1918. (40 
 Stat., 845, 879, Bui. No. 43, W. D., 1918.)" 
 
 Payment of compensation to beneficiaries 
 of nm'ses who die while on the active list of 
 the Regular Navy from wounds or disease 
 not the result of their own misconduct, is 
 provided for by act of June 4, 1920. (41 Stat., 
 824.) 
 
 37. Naval Reserve Force. — Pay for active 
 duty.— By act of August 29, 1916 (39 Stat., 588), 
 which created the Naval Reserve Force, it was 
 pro\'ided that "all members of the Naval Re- 
 serve Force shall, when actively employed as 
 set forth in this act, be entitled to the same pay, 
 allowances, gratuities, and other emoluments 
 as officers and enlisted men of the naval ser-\'ice 
 on active duty of corresponding rank or rating 
 and of the same length of service." This pro- 
 vision was superseded by the following clause 
 in the act of July 1, 1918 (40 Stat., 712): "Mem- 
 bers ot the Naval Reserve Force when employed 
 in active service, ashore or afloat, under the 
 Naxy Department shall receive the same pay 
 and allowances as received by the officers and 
 enlisted men of the regular Navy of the same 
 rank, grades, or ratings and of the same length 
 of service, which shall include service in the 
 Navy Marine Corps, Naval Reserv^e Force, 
 
 Naval Militia, National Naval Volunteers, or 
 Marine Corps Reserve." 
 
 An officer of the Naval Resen-e Force, as- 
 signed to active duty, who is thereafter de- 
 tached from such duty with direction to await 
 further orders, is not thereby returned to a 
 resen'e status, but is entitled to the same pay 
 that an ofiicer of similar rank and length of 
 servace in the Regular Navy would be entitled 
 to while awaiting orders as dii'ected by the 
 Navy Department. The words "actively em- 
 ployed," and "active service," as used in the 
 statute, refer to service in the Na\'y under the 
 call of the President in time of war or national 
 emergency, as distinguished from service in 
 reserve. In this case the officer was not dis- 
 charged from active duty in the sense of being 
 returned to a reserve status. The order of de- 
 tachment shows conclusively that he was to 
 hold himself in readiness for new duty. (24 
 Comp. Dec., 626.) 
 
 The act of August 29, 1916, pro\dding that 
 members of the Naval Reserve Force when 
 actively employed shall receive the same pay 
 and allowances as officers and enlisted men of 
 the Regular Navy of corresponding rank or 
 rating and of the same length of service, does 
 not limit the pay and allowances of naval 
 reservdsts when in active ser\'ice to the pay and 
 allowances provided for members of the Regular 
 Navy at the time said act of August 29, 1916, 
 was approved; but entitles them to the same 
 pay and allowances as are pro\'ided by law for 
 members of the Regular Navy at the time their 
 active service with the Navy is rendered; ac- 
 cordingly enlisted personnel of the NaA'al Re- 
 serve Force are entitled while in active service 
 to the increase of pay pro\'ided in the act of 
 May 22, 1917, for members of the Regular Na\'j'. 
 (23 Comp. Dec, 773.) 
 
 Members of the Naval Reserve Force given 
 provisional rank as officers of the Supply Coi-ps, 
 but who have not been required to execute a 
 bond as required of supply officers in the Navy 
 by sections 1383 and 1560, Re\'ised Statutes, 
 are nevertheless entitled to receive the pay and 
 allowances of theii" rank on the acti^-e list during 
 the period they may be assigned to duty for 
 training with their consent, when not required 
 to make disbursements of public money nor 
 charged with accountability or responsibility 
 for any Government property. (27 Comp. 
 Dec, 228.) 
 
 An officer of the Fleet Naval Reserve, when 
 on active duty in time of war or national emer- 
 gency, placed in a hospital for treatment, is 
 entitled to active duty pay wliile in hospital 
 under the same circumstances and subject to 
 the same limitations under which officers of the 
 Regular Navy would be entitled. (23 Comp. 
 Dec, 651; see also, 24 Comp. Dec, 626.) 
 
 Members of the Fleet Naval Reserve de- 
 tached from active duty (to which they had 
 been 3,ssigned for training on board ship), and 
 transferred to a naval hospital for treatment, 
 are not entitled to active service pay thereafter, 
 except for time necessary to tra^'el to their 
 homes. (Comp. Dec, Feb. 23, 1917, 192 S. 
 and A. Memo., 4157, distinguishing Comp. 
 Dec, Aug. 3, 1916, 186 S. and A. Memo., 4031, 
 in which it was held that a member of the 
 former Naval Reser\-e, created by the act of 
 
 808 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1556. 
 
 March 3, 1915, 38 Stat., 941, was entitled to 
 active duty pay during a period when he was 
 under treatment in a hospital, in that the en- 
 listed man in the latter case was not detached 
 from his ship and sent to a hospital for tempo- 
 rary treatment.) 
 
 A member of the Naval Reserve Force in an 
 enlisted rating who, after undergoing treatiijent 
 in a naval hospital, is ordered on sick leave of 
 absence is in a duty status and entitled to the 
 per diem allowance for subsistence for such 
 period. (26 Comp. Dec, 47.) 
 
 "An oflicer in the Naval Reserve Force serv- 
 ing at sea, who is gi-anted leave of absence, is 
 entitled to full active duty pay for the period 
 of absence." (24 Comp. Dec, 626, 627. See 
 also 21 Comp. Dec, 628, holding that an officer 
 of the former ]\Iedical Reserve Corps of the 
 Navy, on authorized leave granted wliile on 
 active duty, was entitled to pay for the period 
 of such leave, pro\T.ded the leave granted was 
 not in excess of the leave to the credit of the 
 officer at the time he availed himself of it.) 
 
 An officer of the Naval Reserve Force on 
 active duty, who formerly served in the Navy, 
 is entitled to be credited for pay purposes %vith 
 the five years' constructive 8er\ice which was 
 credited to him, under the act of March 3, 1899 
 (30 Stat., 1007), upon his original appointment 
 to the Navy from ci\il Ufe. (Comp. Dec, Feb. 
 21, 1918, 204 S. and A. Memo., 4505; see also, 
 24 Comp. Dec, 168; 24 Comp. Dec, 629.) 
 
 Officers of the Naval Auxiliary Reserve of the 
 Naval Reserve Force are not entitled to lon- 
 ge^dty increase for service rendered in the 
 Naval Auxiliary Service, even though they 
 were entitled to such increase while members 
 of said Auxiliary 8er\ice. (Comp. Dec, June 
 27, 1917, 196 S. and A. Memo., 4292.) 
 
 In determining the amount of continuous- 
 service pay to which members of the Naval 
 Reserve Force in enlisted ratings are entitled, 
 under the act of July 1, 1918, by reason of_ naval 
 miUtia service, all legal active service in en- 
 listments which contain the elements of con- 
 tinuous service prescribed for men in the regu- 
 lar Navy should be counted. (25 Comp. Dec, 
 154.) 
 
 Members of the Naval Reserve Force who are 
 citizens of the United States are entitled to the 
 benefits of General Order No. 34, Navy Depart- 
 ment, issued under Executive order of Novem- 
 ber 27, 1906 (later embodied in art. 4427, par. 
 25, Navy Regs., 1913), including in the compu- 
 tation thereunder ser\dce in the naval militia 
 under reenUstments since November 27, 1906. 
 (25 Comp. Dec, 154.) 
 
 The National Guard not being one of the or- 
 ganizations enumerated in the act of July 1, 
 1918, for the service in which a member of the 
 Naval Reserve Force in active service is en- 
 titled to credit, and not being comprehended in 
 the term, "Naval Militia, " which is included, 
 an officer of the Naval Reserve Force who has 
 had legal active service in the National Guard 
 to his credit is not entitled to longevity pay 
 therefor. (25 Comp. Dec, 735.) 
 
 Enlisted men of the Regular Navy who, upon 
 the expiration of enUstment, are transferred to 
 the Fleet Naval Reserve at their request, are 
 entitled aa members of the Naval Reserve 
 Force, while on active duty, to continuous- 
 
 service pay and pay under General Order No. 34 
 (art. 4427, par. 25, Navy Regs., 1913), the same 
 as if they had accepted discharge from the 
 Navy at the expiration of enlistment and had 
 thereafter enrolled in the Fleet Naval Reserve; 
 but said enlisted men are not entiled upon 
 such transfer to the honomble discharge gra- 
 tuity. (25 Comp. Dec, 186.) 
 
 Retainer pay. — Retainer pay for members of 
 the Naval Reserve Force is based solely on 
 consideration of an obligation assumed by 
 them "to serve in the Navy in time of war or 
 during the existence of a national emergency 
 declared by the President. " It is not com- 
 pensation for services rendered. (26 Comp. 
 Dec, 884.) 
 
 "When not actively employed in the Navy, 
 members of the Naval Reserve Force shall not 
 be entitled to any pay, bounty, gratuity, or 
 pension except as expressly provided for mem- 
 bers of the Naval Reserve Force by the pro- 
 visions of this act. " (Act Aug. 29, 1916, 39 
 Stat., 588.) 
 
 An enrolled member of the Naval Reserve 
 Force is not entitled to retainer pay for any 
 period subsequent to the expiration of his term 
 of enrollment and prior to reenrollment, al- 
 though he may be continued on active duty 
 during such period. (26 Comp. Dec, 900.) 
 
 "Retainer pay shall be in adcUtion to any 
 pay to which a member may be entitled by 
 reason of active service. " (Act Aug. 29, 1916, 
 39 Stat.. 588.) 
 
 " In time of peace no member of any class of 
 the Naval Reserve Force shall be entitled to 
 retainer pay when assigned to active duty for 
 purposes other than training." (Act July 1, 
 1918, 40 Stat., 711.) 
 
 "Retainer pay provided by existing law shall 
 not be paid to any member of the Naval Reserve 
 Force who fails to train as pro^ided by law 
 during the year in which he fails to train." 
 (Act June 4, 1920, sec 1, 41 Stat., 824.) 
 
 "Hereafter the Secretary of the Navy may, 
 in his discretion, withhold any part or all of the 
 retainer pay which may be due to a member of 
 the Naval Reserve Force where such members 
 fail to perform such duty as may be prescribed 
 by law for the maintenance of the efficiency of 
 the Naval Reserve Force: Provided, That any 
 money so withheld shall be credited to the 
 appropriation for organizing and administering 
 the Naval Reserve Force to l)e used for any 
 purpose that the Secretary of the Navy may 
 consider proper to increase the efficiency of the 
 Naval Reserve Force." (Act June 4, 1920, 
 sec. 9,41 Stat., 837.) 
 
 " Retainer pay shall only be paid to members 
 of the Naval Reserve Force upon their making 
 such reports concerning their movements and 
 occupations as may be required by the Secre- 
 tary of the Navy." (Act Aug. 29, 1916, 39 
 Stat., 588.) 
 
 "Any pay which may be due any member of 
 the Fleet Naval Reserve shall be forfeited when 
 so ordered by the Secretary of the Navy upon 
 the failure, under such conditions as may be 
 prescribed by the Secretary of the Navy, of such 
 man to report for inspection. " (Act Aug. 29, 
 1916, 39 Stat., 590.) 
 
 "Retainer pay shall be paid annually or at 
 shorter intervals, as the Secretary of the Navy, 
 
 809 
 
Sec. 1556. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 ill his (liscrotion, may direct. " (Act Aug. 29, 
 l'Jl(i,3'J Stat., 588.) 
 
 "The retainer pay of all members of the Naval 
 Reserve Force, except the Volunteer Naval 
 Reserve, while enrolled in a jjrovisional rank 
 or rating, and until such time as they shall 
 have been coniirmed in such rank or rating, 
 shall be $12 per annum. Thereafter, the 
 retainer pay shall be that prescribed for mem- 
 bers in the various classes." (Act Aug. 29, 
 1916, 39 Stat., 588.) 
 
 "The Volunteer Naval Reserve shall be com- 
 posed of those members of the Naval Reserve 
 Force who are eligible for membersliip in any 
 one of the other classes of the Naval Reserve 
 Force, and who obligate themselves to serve in 
 the Navy in any one of said classes without 
 retainer pay and uniform gratuity in time of 
 peace." (Act Aug. 29, 191(5, 39 Stat., 592.) 
 
 "The retainer pay of the enrolled men of the 
 Fleet Naval Reserve shall be the same as for 
 the enrolled men of the Naval Reserve and shall 
 be computed in like manner: Provided, That 
 nothing herein shall operate to reduce the re- 
 tainer pay allowed by existing law to enlisted 
 men who, after sixteen years or more of naval 
 eer\-ice, ai'e transferred to the Fleet Naval 
 Reserve." (Act July 1, 1918, 40 Stat., 710.) 
 
 ' ' The annual retainer pay of members of the 
 Naval Reserve Force, except officers in the 
 Naval Auxiliary Reser\^e and transferred mem- 
 bers of the Fleet Naval Reserve, after confirma- 
 tion in rank; grade, or rating, shall be the 
 equivalent of two months' base pay of the cor- 
 responding rank, grade, or rating in the Navy, 
 but the highest base pay upon wliich the re- 
 tainer pay of officers of the Naval Reserve Force 
 shall be computed shall not be greater than the 
 base pay of a lieutenant commander." (Act 
 Julyl, 1918, 40 Stat., 710.) 
 
 ' ' The annual retaiaer pay of members in this 
 class [Naval Auxiliary Reserve] after confirma- 
 tion in rank or rating shall be for officers, one 
 month's base pay of the corresponding rank in 
 the Navy." (Act Aug. 29, 1916, 39 Stat., 592.) 
 
 "Members of the Fleet Naval Reserve who 
 have, when transferred to the Fleet Naval Re- 
 serve, completed naval service of sixteen or 
 twenty or more years shall be paid a retainer at 
 the rate of one-third and one-half, respectively, 
 of the base pay they were receiving at the close 
 of their last naA'al service plus all permanent 
 additions thereto: Provided, That the pay 
 authorized in this paragraph as a retainer shall 
 be increased ten per centum for all men who 
 may be credited with extraordinary heroism in 
 the line of duty or whose average marks in con- 
 duct for twenty years or more shall not be less 
 than ninety-five per centum of the maxi- 
 mum." (Act Aug. 29, 1916, 39 Stat., 590.) 
 
 Upon original enrollment members of the 
 Fleet Naval Reserve enrolled in enlisted ratings 
 are entitled to retainer pay computed on the 
 rating given them at the date of such original 
 enrollment. The law specifically exempts 
 members of the Fleet Naval Reserve from the 
 requirement that they be given a provisional 
 rating upon first enrollment, and in actual 
 operation such members are, by direction of 
 the Navy Department, presumed to be given 
 a confirmed rating. As enrolled members of 
 the Fleet Naval Reserve are given a confirmed 
 
 rating upon enrollment, the law authorizing 
 "after confirmation"' a retainer pay to be 
 computed on a basis of "the equivalent of two 
 months' base pay" grants to said members the 
 right to have retainer pay computed on the 
 basis of two months' base pay of the rating in 
 which enrolled. (25 Comp. Dec, 350.) 
 
 A former ensign in the Navy enrolled in the 
 Fleet Naval Reserve on May 29, 1918, with the 
 l)rovisional rank of ensign, and thereafter, on 
 November 26, 1919, issued a commissioned and 
 confirmed rank of ensign from May 29, 1918, 
 date of enrollment, is entitled to retainer pay 
 based wpon such confirmed rank from the date 
 of his em-ollment, and not merely from the date 
 that he established liis qualifications for such 
 confirmed rank. (26 Comp. Dec, 758.) 
 
 A former midshipman in the Regular Navy 
 who was enrolled in the Fleet Naval Reserv^e 
 with the pro^visional rank of ensign on January 
 15, 1918, and thereafter, on November 26, 1919, 
 was issued a commission in the confirmed rank 
 of ensign from January 15, 1918 (date of enroll- 
 ment), is entitled to retainer pay based upon 
 such confirmed rank only from the date that the 
 board, duly appointed for that purpose, passed 
 and reported upon his qualifications for con- 
 firmation, which in this case was October 1, 
 1919. (26 Comp. Dec, 668.) 
 
 A member of the Naval Reserve Force hold- 
 ing a confirmed rank or rating, who is promoted 
 to a provisional rank, continues to be entitled 
 to the retainer pay based on the confirmed rat- 
 ing until the ternunation of the enrollment 
 period in which received, but upon reenroll- 
 ment in the pro\dsional rank which he held at 
 the termination of his last enrollment period he 
 loses the right to receive retainer pay based on 
 the former confirmed rating unless again ap- 
 pointed thereto, and is entitled only to retainer 
 pay based on the pro\'isional rank in which 
 reenrolled. If subsequent to liis reenrollment 
 he is again given his former confirmed rating, 
 to date from his reem-ollment, he will be en- 
 titled to retainer pay based on such confirmed 
 rating from said date. (27 Comp. Dec, 82.) 
 
 Upon promotion to a provisional rating, 
 members of the Fleet Naval Reser-\'e enrolled 
 in enlisted ratings are entitled, under the act 
 of July 1, 1918, to retainer pay computed on the 
 confirmed rating given them at date of enroll- 
 ment. If promotion be to a confirmed rating, 
 retainer pay should be computed on the basis 
 of the confirmed rating thereby acquired. (25 
 Comp. Dec, 350.) 
 
 Members of the Fleet Naval Reserve, upon 
 advancement from one provisional or confirmed 
 rank to a liigher confirmed rank, are entitled to 
 retainer pay at the higher rate from the date of 
 confirmation in the Iiigher rank or rating. 
 (25 Comp. Dec, 350.) 
 
 Officers of the Naval Reserve Force who, 
 while holding a confirmed rank, are transferred 
 to another class of the Reserve and given a 
 higher provisional rank therein, are entitled to 
 continue in receipt of retainer pay which they 
 were receiving in the confirmed rank held by 
 them. (25 Comp. Dec, 421.) 
 
 Transferred members of the Fleet Naval Re- 
 serve are entitled, as retainer pay, to one-third 
 or one-half, respectively, of the base pay they 
 were receiving at the close of their last naval 
 
 810 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1556. 
 
 service, and to the full amount of all permanent 
 additions thereto. Thus, where the current 
 rate of pay of a man at the time of his transfer 
 to the Fleet Naval Reserve in September, 1916, 
 after 20 years' service, was $94.53 per month, 
 composed of $70 base pay, plus .$24.53 perma- 
 nent additions, he was entitled as retainer pay 
 to $59.53 per month, being one-lialf of his base 
 pay, or $35, plus all permanent additions, 
 amounting to $24.53, such permanent additions 
 being composed of $(5.44 continuous-service 
 pay, $8 pay under Executive order of Novem- 
 ber 27, 1906 (art. 4427, par. 25, Navy Regs., 
 1913), $1.50 for good-conduct medal, and $8.59 
 as 10 per cent increase of pay under the act of 
 May 13, 1908, said 10 per cent increase being 
 treated as a permanent addition to Ms base 
 pay and therefore being allowed in full. (See 
 23 Comp. Dec, 190.) 
 
 . In computing the retainer pay of members 
 of the Fleet Naval Reserve who have been 
 transferred thereto at the expiration of enlist- 
 ment after completing 16 years of service in the 
 Regular Navy, the increased rates of pay pro- 
 \dded in section 15 of the act of May 22, 1917 
 (40 Stat., 87), which are made permanent in 
 certain enlistments by the act of July 11, 1919 
 (41 Stat., 140), are considered as establishing 
 new base rates of pay for each rating; while the 
 10 per cent increase of pay authorized by the 
 act of May 13, 1908 (35 Stat., 128), is to be 
 treated as permanent addition to pay and not 
 as an increase in the base rates thereof. Ac- 
 cordingly, said man will be allowed, in com- 
 puting his retainer pay, only one-third of the 
 increase provided by the acts of May 22, 1917, 
 and July 11, 1919, while he will be allowed the 
 full amount of increase provided by the act of 
 May 13, 1908. (26 Comp. Dec, 219, explaining 
 23 Comp. Dec, 190.) 
 
 The retainer pay of officers of the Naval Re- 
 serve Force is not increased by the temporary 
 increase granted officers of the NaA'y by the act 
 of May 18, 1920 (41 Stat., 601); such temporary 
 increase was not an increase in the base pay of 
 the various ranks in the Navy, and as the re- 
 tainer pay of an officer of the Naval Reserve 
 Force is computed only upon base pay of the 
 confirmed rank held by him, the computation 
 of his retainer pay is not affected by said act of 
 May 18, 1920. However, confirmed members 
 of the Naval Reserve Force holding enlisted 
 ratings, and transferred members of the Fleet 
 Naval Reserve, are entitled to retainer pay 
 computed on the increased rates of pay pro- 
 vided in section 6 of said act of May 18, 1920 
 (41 Stat., 602), for enlisted men of the Navy; 
 but if such members were not on active duty 
 during any of the period from January 1, 1920, 
 from which said increase in the pay of the 
 Regular Navy took effect, until May 18, 1920, 
 when said act was' approved, they are not en- 
 titled to such increase prior to the date of said 
 act. (27 Comp. Dec, 274, modifying 27 Comp. 
 Dec, 126.) 
 
 A transferred member of the Fleet Naval 
 Reserve of over 20 years' service is entitled to 
 but one 10 per cent increase of his retainer pay, 
 as provided by the act of August 29, 1916, even 
 though he may possess the two qualifications 
 of extraordinary heroism and conduct marks. 
 
 The statute authorizes but one 10 per cent in- 
 crease for the possession l)y a man of either of 
 two alternative quafifications, and makes his 
 possession of one or other of the qualifications 
 sufficient to entitle him to it. The fact that he 
 may possess both of the qualifications does not 
 operate to entitle him to two 10 per cent in- 
 creases, only one having been provided for. 
 (Comp. Dec, June 2, 1917, 196 S. and A. 
 Memo., 4266.) 
 
 "That the retainer pay of those members of 
 the Fleet Naval Reserve who, pursuant to call, 
 shall return to active duty within one month 
 after tlie approval of this act and shall continue 
 on active duty until the Navy shall have been 
 recruited up to its permanent authorized 
 strength, or until the number in the grade to 
 which they may be assigned is filled, but not 
 beyond June 30, 1922, shall be computed upon 
 the base pay they are receiving when retrans- 
 ferred to inactive duty, plus the additions or 
 increases prescribed in the naval appropriation 
 act approved August 29, 1916, for members of 
 the Fleet Naval Reserve." (Act May 18, 1920, 
 sec 5, 41 Stat., 603. By sec. 13 of the same 
 act it was provided that the provisions of sec. 5 
 thereof "shall remain effective until the close 
 of the fiscal year ending June 30, 1922, unless 
 sooner amended or repealed.") 
 
 "Any member [of the Fleet Naval Reserve] 
 who has failed to perform three months' active 
 ser\dce with the Navy in any term of enrollment 
 shall, on the next reenrollment, receive retainer 
 pay at the rate of $12 per annum until such 
 time as he shall have completed three months' 
 active service. The three months' active 
 service with the Navy may be taken in one or 
 more periods, at the election of the member." 
 (Act Aug. 29, 1916, 39 Stat., 590.) 
 
 "Members of the Naval Reserve Force who 
 reeiu'oll for a term of foiu: years within four 
 months from the date of the termination of 
 their last term of enrollment, and who shall 
 have performed the minimum amount of active 
 service required during the preceding term of 
 enrollment, shall, for each such reem'ollment, 
 receive an increase of twenty-five per centum of 
 their base retainer pay." (Act Aug. 29, 1916, 
 39 Stat., 588.) 
 
 "Officers and men em-olling in the Fleet 
 Naval Reserve within four months of the date 
 of the termination of their last naval service or 
 reemolling \\athin fom' months of the date of 
 the termination of their last term of enrollment 
 shall receive an increase of twenty-five per 
 centum of their retainer pay for each such en- 
 rollment." (Act Aug. 29, 1916, 39 Stat., 590.) 
 
 "Service in the Navy, Marine Corps, National 
 Naval Volunteers, and Naval Militia shall be 
 counted as continuous service in the Naval 
 Reserve Force, both for the purpose of retire- 
 ment and of computing retainer pay * * * : 
 Provided further, That no retainer pay of any 
 member of the Naval Reserve Force, except 
 those enlisted men transferred to the Fleet 
 Naval Reserve after sixteen or twenty or more 
 years' naval service, shall be in excess of the 
 amount authorized to members having had 
 sixteen years' continuous service therein." 
 (Act July 1, 1918, 40 Stat., 710.) 
 
 54G41°— 22- 
 
 -52 
 
 811 
 
Sec. 1556. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 "For all purposes of this act a complete en- 
 listment during minority and any enlistment 
 terminated within three months prior to the 
 expiration of the term of enlistment by special 
 oraer of the Secretary of the Navy shall be con- 
 sidered as four years' ser^dce. " (Act Aug. 29, 
 191(!, 39 Stat., 590.) 
 
 Any former member of class one of the United 
 States Naval Reserve, established by act of 
 March 3, 1915 (38 Stat., 940), who was serving 
 therein on August 29, 1916, and w'ho upon his 
 own ajiplication prior to July 1, 1917, was en- 
 rolled in the Naval Reserve Force, shall, for all 
 purposes, be considered as having served con- 
 tinuously in such Naval Reserve Force since 
 August 29, 191(i, with due credit for previous 
 and continuous ser^^ce in the Naval Reserve 
 in the same manner and to the same effect as for 
 equal length of service in the Naval Reserve 
 Force. (Act ^lar. 4, 1917, 39 Stat., 1174.) 
 
 Under the act of March 4, 1917, an enlisted 
 man of the Navy who enrolled in the former 
 Naval Reserve within four months from the 
 date of his discharge from the Na^^^ was serving 
 in said Naval Reserve on August 29, 1916, and 
 was enrolled in the Fleet Naval Reserve prior 
 to July 1, 1917, upon his own application, is 
 regarded as haATUg served constructively in 
 the Naval Reserve Force from the date of his 
 enrollment in the former Naval Reserve, and 
 therefore as having enrolled in said Naval Re- 
 serve Force within four months from the date 
 of termination of his last naval ser\dce ; he is 
 therefore entitled to 25 per cent increase of 
 retainer pay, as provided by the act of August 
 29, 1916, for persons enrolling in the Naval Re- 
 serve Force within four months of the date 
 of termination of their last naval serAdce. 
 (Comp. Dec, Sept. 29, 1917,199 S. and A. 
 Memo., 4386.) 
 
 Under the act of July 1, 1918, members of the 
 Naval Reserve Force are entitled, for pre\dou8 
 serAdce in the Na-s^', Marine Corps, National 
 Naval Volunteers, and Naval Militia, to credit 
 for such serA-ice as provided in the act of 
 August 29, 1916, i. e., for each four years a 
 credit of 25 per cent, within the limitation of 
 16 years; allowing for members wdth four, but 
 less than eight years' previous services, a credit 
 of 25 per cent; for eight but less than 12 years, 50 
 per cent; for 12 but less than 16 years, 75 per 
 cent; and for 16 or more years' service, 100 per 
 cent. (25 Comp. Dec, 504, modifying 25 Comp. 
 Dec, 308.) 
 
 Members of the Naval Reserve Force trans- 
 ferred thereto from the National Naval Vol- 
 unteers, under the pro\dsions of the act of Julv 
 1, 1918 (40 Stat., 708), are entitled to increase of 
 25 per cent of their base retainer pay upon re- 
 enrollment in the Naval Reserve Force within 
 four months from termination of their three- 
 year enrollment in which serving when so 
 transferred. (27 Comp. Dec, 221.) 
 
 Members of the Naval Reserve Force ap- 
 pointed to commissioned or warrant grades 
 "shall not be dejjrived of the retainer pay, 
 allowances, or gratuities to which they would 
 otherwise be entitled. " (Act Aug. 29, 1916, 
 39 Stat., 587.) 
 
 Enrolled members of the Fleet Naval Reserve 
 in enlisted ratings, who have been appointed 
 to commissioned, warrant, and chief warrant 
 
 grades in other classes of the Naval Reserve 
 Force, are not entitled to continue after June 
 30, 1918, in receipt of retainer pay of their en- 
 listed ratings, computed on the rates estab- 
 lished by the act of August 29, 1916, which 
 rates of pay for eru-olled members of the P^leet 
 Naval Reserve were abolished and new rates 
 substituted by the act of July 1, 1918 (40 Stat., 
 710). However, emolled members of the 
 Fleet Naval Reserve so appointed to offices in 
 other classes of the Naval Reserve Force may, 
 on and after July 1, 1918, be allowed the rate of 
 retainer pay provided by the act of that date 
 for the enlisted rating which they held in the 
 Fleet Naval Reserve. (25 Comp. Dec, 445.) 
 
 Pay irhik holding other offices. — "No existing 
 law shall be construed to prevent any member 
 of the Naval Reserve Force from accepting 
 employment in any branch of the public serv- 
 ice, except as an officer or enlisted man in any 
 branch of the military service of the United 
 States or any State thereof, nor from receiAdng 
 the pay and allowances incident to such em- 
 ployment in addition to his retainer pay." 
 (Act Aug. 29, 191G, 39 Stat.. 588.) 
 
 "That no part or parts of any existing law 
 shall be construed * * * to prevent mem- 
 bers of the Naval Reserve Force from being or 
 becoming members of the Naval Militia of any 
 State, Territory, or the District of Columbia: 
 Provided, That such membership in the Naval 
 Militia shall not interfere Avith the discharge of 
 duties by such members thereof who are in the 
 Naval Reserve Force." (Act July 11, 1919, 41 
 Stat., 141.) 
 
 "That upon their enrollment in the Naval 
 Reserve Force, and not otherwise, until June 
 30, 1922, the members of said Naval Militia shall 
 have all the benefits, gratuities, privileges, and 
 emoluments proAdded by law for other members 
 of the Naval Reserve Force ; and that wdth the 
 approval of the Secretary of the Naw, duty 
 performed in the Naval Militia may be counted 
 as active ser\dce for the maintenance of effi- 
 ciency required by law for members of the 
 Naval Reserve Force." (Act June 4, 1920, 
 sec. 1, 41 Stat., 818.) 
 
 Officers and employees of the Government 
 who are members of the Naval Reserve Force 
 are not entitled to military leave of absence 
 wdth pay. in addition to their regular annual 
 and sick leave, for the period they are on active 
 duty with the Naval Reserve Force. (27 
 Comp. Dec, 214.) 
 
 Members of the Naval Reserv'e Force on 
 active duty are prohibited by the proAdsions of 
 the act of August 29, 1916 (39 Stat., 582), from 
 receiA dug salary of any ci\dl position they may 
 be holding, if the combined amount of such 
 salary and active-duty pay as members of the 
 Naval Reserve Force exceeds the sum of §2,000 
 per annum, but such limitations do not apply 
 to the retainer pay of members of the Naval 
 Reserve Force. (27 Comp. Dec, 214.) 
 
 Uniform gratuity. — "Members of the Naval 
 Reserve Force shall, upon first reporting for 
 acti\"e serAdce for training during each period 
 of enrollment, be credited wdth a uniform 
 gratuity of $50 for officers * * *. Upon 
 reporting for active ser.dce in time of war or 
 national emergency the uniform gratuity shall 
 be $150 for officers * * *, or the difference 
 
 812 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1556. 
 
 between these amounts and any amounts that 
 may have been credited as a uniform gratuity 
 during the current enrollment." (Act Aug. 
 29, 1916, 39 Stat., 589.) _ 
 
 "The uniform gratuity for the members, 
 other than officers, of each class of the Naval 
 Reserve Force shall be the same as that pre- 
 scribed for enlisted men of the NaAy, but in 
 time of peace the Secretary of the Navy shall 
 prescribe the portion of the clothing gratuity to 
 be issued to such members, other than officers, 
 of the Naval Reserve Force." (Act July 1, 
 1918, 40 Stat., 711.) 
 
 Enlisted men of the Navy are not entitled to 
 a credit for uniform gratuity but to clothing 
 outfit, or, in other words, to a gratuitous issue 
 of uniform and clothing. Therefore, what the 
 enrolled members of the Naval Reserve Force 
 who first reported for active service on or sub- 
 sequent to July 1, 1918, became entitled to 
 was not a credit for uniform gratuity but to a 
 gratuitous issue of uniform, not to exceed §100. 
 (25 Comp. Dec, 281.) 
 
 Under the act of August 29, 1916, uniform 
 gratuity is payable only to those members of 
 the Naval Reserve Force whose membership is 
 contingent upon a period of enrollment; ac- 
 cordingly, transferred members of the Fleet 
 Naval Reserve who are not "enrolled" and 
 whose service is not measmed by "periods of 
 enrollment '* are not entitled to uniform gratuity 
 either under that act or subsequent legislation. 
 (25 Comp. Dec, 318.) 
 
 Officers of the Volunteer Naval Reserve of 
 the Naval Reserve Force are entitled when on 
 active duty in time of war to the unifonn 
 gratuity of $150 provided by the act of August 
 29, 1916, for a full term of enrollment, notwith- 
 standing that under said act members of the 
 Volunteer Naval Reserve are not entitled to 
 retainer pay or uniform gratuity in time of 
 peace. (Comp. Dec, Aug. 7, 1917, 198 S. and 
 A. Memo., 4332.) 
 
 During the period of any "time of war or 
 national emergency " officers of the Naval Re- 
 serve Force who reenroU and report for active 
 service are entitled to be credited with uniform 
 gratuity of not to exceed $150, provided they 
 have the required outfit of uniforms and equip- 
 ment, and the other members of the Naval 
 Reserve Force so reporting, following a reen- 
 rollment, are entitled to uniform gratuity of 
 $100. While the act of July 1, 1918, increases 
 the amount of uniform gratuity over that pro- 
 vided by the act of August 29, 1916, so as to 
 entitle enrolled members other than oflicers to 
 a uniform gratuity of $100, the latter act does 
 not in any way repeal the provision of the act 
 of August 29, 1916, providing under what con- 
 ditions the gratuity is payable. The provision 
 of the act of July 1, 1918, "shall be the same 
 as prescribed for enlisted men of the Navy," 
 relates only to the amount of the gratuity. 
 (26 Comp. Dec, 1010.) 
 
 A member of the Naval Reserve Force hold- 
 ing an enlisted rating who is promoted, during 
 the term of his enrollment and in time of war, 
 to a commissioned rank is entitled only to the 
 difference V>etween the amount already credited 
 to him as uniform gratuity and the maximum 
 allowed for active service in time of war. (24 
 Comp. Dec, 483.') 
 
 The provision for the crediting of the uniform 
 gratuity is a mandatory one. It is that officers 
 shall" be credited with it "upon first report- 
 ing for active service for training during his 
 period of enrollment," and that said credit 
 "shall" be $150 for said officers "upon report- 
 ing for active service in time of war or national 
 emergency." (25 Comp. Dec, 130, 131.) 
 
 Should any member of the Naval Reserve 
 Force sever his connection with the service with- 
 out compulsion on the part of the Government 
 before the expiration of his term of enrollment, 
 the amount so credited [for uniform gratuity] 
 shall be deducted from any money that may 
 be or may become due him." (Act Aug. 29, 
 1916, 39 Stat., 589.) 
 
 Members of the Naval Reserve Force "shall 
 in time of peace, when no national emergency 
 exists, be discharged upon their own request 
 upon reimbursing the Government for any 
 clothing gratuity that may have been furnished 
 them during their current enrollment." (Act 
 Aug. 29, 1916, 39 Stat., 587.) 
 
 "That no part of the clothing gratuity cred- 
 ited to members of the Naval Reseve Force 
 shall be deducted from their accounts where 
 said members accept or have accepted tem- 
 porary appointments in the Na^^ in time of 
 war or other national emergency." (Act July 
 1, 1918, to Stat., 711.) 
 
 Where an ensign in the Naval Reserve Force 
 receives an order from the Navy Department 
 stating, ' ' You are this day discharged from the 
 U.S. Naval Reserve Force for the convenience 
 of the Government," and the next day accepts 
 a commission as temporary ensign in the P^egu- 
 lar Navj^ his connection with the service was 
 not severed, within the meaning of the provi- 
 sions of the act of August 29, 1916 (39 Stat., 589), 
 directing the deduction of uniform gratuities of 
 officers who have voluntarily severed their con- 
 nection with said force. (Price v. U. S., 55 
 Ct. Cls. 499.) 
 
 The act of July 1, 1918 (40 Stat., 711), pro- 
 adding that clothing gratuity credited to mem- 
 bers of the Naval Reserve Force shall not be 
 deducted from their accounts where such mem- 
 bers accept temporary appointment in the 
 Regular Navy in time of war, would protect a 
 member's account against checkage if such 
 checkage had not already been made; the 
 mere fact that his account had been checked 
 does not deprive him of a right which would be 
 accorded him if the account had not been 
 checked. (Price v. U. S., 55 Ct. Cls., 499.) 
 
 Travel allowance. — ' 'The Secretary of the 
 Navy is authorized to assign any member of 
 the Fleet Naval Reserve to active duty for 
 training on board ship upon the application of 
 such member * * *: Provided, That no 
 member shall be entitled to travel allowance un- 
 less the period of such active service is for not 
 less than one month, or unless specifically iwo- 
 vided for by suc^h regulations as may be ]>rc- 
 scribed by the Secretary of the Navy." (Act 
 Aug. 29, 1916, 39 Stat., 590.) 
 
 By act of February 28, 1919 (40 Stat., 1203), it 
 was provided that naval reservists duly en- 
 rolled who have been honorably released from 
 active service since November 11, 1918, or wlio 
 may hereafter be honorably released from 
 active service, shall be entitled to receive 
 
 813 
 
Sec. 1556. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 tra\t'l i)av at the rate of five cents per mile 
 from the'i)la^c wlierc they are released from 
 active duty to their actual bona fide home or 
 residence, or original nnuster into the service, 
 at their option; but for sea traAcl, transporta- 
 tion and subsistence only shall be furnished to 
 enlisted men. By act of June 4, 1920 (41 Stat., 
 836), it was pro\-ided that any enrolled man 
 who, since November 11 , 1918, has been or shall 
 hereafter be discharged from any branch or 
 class of the naval service for the purpose of re- 
 enlisting in the Navy or Marine Corps, shall be 
 entitled to travel pay as authorized in said act 
 of February 28, 1919. 
 
 Enlisted men of the Regular Navy, trans- 
 ferred to the Fleet Naval Reserve after IG or 20 
 or more years of service, whose rating at the 
 time of transfer entitled them to honorable^ dis- 
 charge and who, as reservists, are not retained 
 on active duty, are entitled at the time ol 
 transfer to travel allowance at 5 cents per mile 
 from the place of transfer to their actual bona 
 fide home or residence or place of original muster 
 into the service, at their option, as provided by 
 the act of February 28, 1919 (40 Stat., 1203). 
 (26Comp. Dec.,636.) 
 
 An officer of the Naval Reserve Force de- 
 tached from active duty and ordered to his 
 home who, in proceeding to his home, delays 
 beyond the period authorized by the Navy 
 Regulations, is not entitled to mileage in sub- 
 sequently performing the travel, his active 
 duty status having terminated as of the date of 
 detachment. (26 Comp. Dec, 639, overruled, 
 27 Comt). Dec, 478, noted below; see also 26 
 Comp. Dec, 245.) 
 
 An officer of the Naval Reserve Force relieved 
 from active duty and ordered to his home occu- 
 pies a situation analogous to a retired naval 
 officer released from active duty and is accord- 
 ingly entitled to mileage to his home, provided 
 the journey is performed in obedience to orders 
 within a reasonable time after date of release 
 from active dutv. (27 Comp. Dec, 478, over- 
 ruling 26 Comp. Dec, 639.) 
 
 Under the act of February 28, 1919, (40 Stat., 
 1203), a member of the Naval Reserve Force 
 released from active duty in the interior of a 
 foreign country is entitled to travel allowance 
 at the rate of 5 cents per mile from place of re- 
 lease to port of embarkation, transportation and 
 subsistence for the sea travel involved, and 5 
 cents per mile in the United States from the 
 port of landing to his bona tide home or resi- 
 dence or place of original muster into the ser- 
 vice, at his option. (26 Comp. Dec, 888.) 
 
 Transferred members of the Naval Reserve 
 Force, as well as those duly enrolled from ci\il 
 life, are entitled to travel allowance upon hon- 
 orable release from active duty imder the act of 
 February 28, 1919 (40 Stat., 1203). (26 Comp. 
 Dec, 878.) 
 
 Courts-martial. — Transferred members of the 
 Fleet Naval Reserve, when released from 
 active duty, are entitled to ])e credited, under 
 article 4893, Naval Instructions, 1913, with the 
 amounts deducted from their pay on account of 
 court-martial sentences, in the same manner as 
 though such release from active duty were a 
 discharge from the service. (26 Comp. Dec, 
 91.) But enrolled members of the Naval Re- 
 serve Force are entitled to such credit only 
 
 upon disenrollment or discharge, their release 
 from active duty not being equivalent to a dis- 
 charge. (26 Com)). Dec, 818.) 
 
 The appropriation, "Pay, miscellaneous," 
 is available for the payment of the cost of sub- 
 sistence of officers of the Naval Reserve Force 
 on inactive duty, while in confinement await- 
 ing action of the Navy Department or awaiting 
 trial by court-martial. (26 Comp . Dec, 884.) 
 
 Deduction of pay. — Deduction of 20 cents per 
 month for the naval hospital fund should be 
 made from the active-duty pay of all members 
 of the Naval Reserve Force during such time as 
 they are on active duty, and also such deduc- 
 tion should be made from the retainer pay of 
 transferred members of the Fleet Naval Reserve 
 when not on active duty. Under the act of 
 August 29, 1916, em-olled members of the Naval 
 Reserve Force are "subject to the laws, regu- 
 lations, and orders for the government of the 
 Regular Navy only during such time as they 
 may by law be required to serve in the Navy, 
 in accordance with their obligations, and when 
 on active service at their own request as herein 
 provided, and when employed in authorized 
 travel to and from such active service in the 
 Navy." Under the same act, " men transferred 
 to the Fleet Naval Reserve shall be governed 
 by the laws and regulations for the government 
 of the Na\'y" at all times, and not merely 
 while employed on active duty. One of the 
 laws for the government of the Navy thus made 
 applicable to members of the Naval Reserve 
 Force is that providing for deduction on account 
 of the naval hospital fund. (Comp. Dec, Dec. 
 27, 1916, 190 S. and A. Memo., 4121; sees. 1614 
 and 4808, R. S.) 
 
 An em-olled member of the Naval Reserve 
 Force holding an enlisted rating and in an 
 active-duty status is not entitled to active-duty 
 pay or allowance for subsistence during un- 
 authorized a}:)sence, such case being governed 
 by article 4425, Navy Regulations 1913 (C. N. 
 R. 7), made applicable by act of August 29, 
 1916 (39 Stat., 588), to enrolled members of the 
 Naval Reserve Force while on active duty. 
 (Comp. Dec, June 20, 1918, 208 S. and A. 
 Memo., 4581.) 
 
 Retired pay. — Enrolled members of the Naval 
 Reserve Force "who shall have completed 
 twenty years of service in the Naval Reserve 
 Force, and who shall have performed the mini- 
 mum amount of active service requii-ed in then- 
 class for maintaining efficiency during each 
 term of em-oUment, shall, upon their own appli- 
 cation, be retired with the rank or rating held 
 by them at the time, and shall receive in lieu 
 of any pay, a cash gratuity equal to the total 
 amount of their retainer pay during the last 
 term of theii' em-oUment." (Act August 29, 
 1916, 39 Stat., 588.) 
 
 Transferred members of the Fleet Naval Re- 
 serve "may, upon their own request, upon 
 completing thirty years' service, including 
 naval and Fleet Naval Reserve service, be 
 placed on the retired list of the Navy with the 
 pay they were then receiving plus the allow- 
 ances to which enlisted men of the same rating 
 are entitled on retirement after thirty years' 
 naval service." (Act August 29, 1916, 39 Stat., 
 591.) 
 
 814 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1556. 
 
 " Service in the Naw, Marine Corps, National 
 Naval Volunteers, and Naval Militia shall be 
 counted as continuous 8er\'ice in the Naval 
 Reser^■e Force, both for the purpose of retire- 
 ment and of computing retainer pay: Provided, 
 That no member of the Naval Reserv^e Force 
 shall be eligible for rethement other than for 
 physical disability inciu-red in line of duty." 
 (Act July 1, 1918, 40 Stat., 710.) 
 
 Nothing contained in this act shall operate 
 to deny to enlisted men transferred to the 
 Naval Reserve Force after 16 years or more of 
 naval ser\dce, their pri^dlege of retirement 
 upon completing .30 years' naval sei"\-ice as now 
 provided bv law. (Act Julv 1, 1918, 40 Stat., 
 710.) 
 
 38. Additional pay for special duty — 
 Superintendent of Naval Academy. — "The pay 
 of the Superintendent of the Naval School at 
 Annapolis shall be at the rate allowed to an 
 officer of his rank, when in ser-vice at sea." 
 (Act Sept. 28, 1850, 9 Stat., 515.) 
 
 The Superintendent of the Naval Academy, 
 while discharging the duties of that position, is 
 entitled to the sea pay of an officer of his rank, 
 notwithstanding section 13 of the Na\^^ per- 
 sonnel act of March 3, 1899 (30 Stat., "lOO?), 
 which pro\'ides that officers of the Na\'y "when 
 on shore shall receive the allowances, but 
 fifteen per centum less pay than when on sea 
 duty." The rule is applicable that a general 
 law will not repeal an earlier special act by 
 mere implication; and in this case the Navy 
 personnel act is general in its pro\T.sions and 
 does not by implication repeal special acts 
 applicable to particular cases. (6 Comp. Dec, 
 885; see also 12 Op. Atty. Gen., 81; 18 Comp. 
 Dec, 17.). 
 
 Commandant of navy yard, Mare Island. — 
 "The pay of the officer of the Na\'y assigned to 
 the command of the na\y yard at Mare Island, 
 California, shall be the sea pay of his grade." 
 (Joint Res. Mar. 3, 1863, 12 Stat., 825.) 
 
 The joint resolution of March 3, 1863, pro- 
 viding that the pay of the officer of the Nav-v- 
 assigned to the command of the Mare Island 
 Navy Yard shall be the sea pay of his gi-ade, 
 is not in conflict with the act of May 13, 1908, 
 and such officer while in that command is enti- 
 tled to the pay of his grade, fixed by said act of 
 May 13, 1908, with 10 per cent additional al- 
 lowed for sea duty. The requirement in said 
 act of May 13, 1908, that estimates for "Pay of 
 the Navy" shall hereafter show the amount 
 allowed "for pay at sea rates to officers em- 
 ployed on shore," e"vidently contemplates that 
 there may be cases under the act where the ad- 
 ditional pay for service on sea duty may law- 
 fully be paid to officers emploved on shore. 
 (15 Comp. Dec, 36; 18 Comp. Dec, 17.) 
 
 Chief of Naval Operations, and commanding 
 officers of fleets and squadrons. — See note above, 
 under "Admirals; Vice Admirals." 
 
 Chkfs of bureaus, assistant chiefs of bureaus, 
 and Judge Advocate General. — See note to sec- 
 tion 421, Re\dsed Statutes. 
 
 Aids to rear admirals. — By act of May 13, 1908, 
 it was provided that "aids to rear admirals 
 embraced in the nine lower numbers of that 
 grade shall each receive one hundred and fifty 
 dollars additional per annum, and aids to all 
 other rear admirals two hundred dollars addi- 
 
 tional per annum each." (35 Stat., 128.) By 
 act of August 29, 1916 (39 Stat., 577, 578), the 
 number of rear admirals was increased and the 
 designation of those in the nine lower numbers 
 was changed to rear admirals of the lower half, 
 and the designation of rear admirals of the first 
 nine was changed to rear admirals of the upper 
 half. 
 
 A naval officer assigned to duty on the per- 
 sonal staff of a rear admiral, as flag lieutenant, 
 without any other designation, is an aid to such 
 rear admiral and entitled to the additional pay 
 of $200 per annum allowed to an aid of a major 
 general in the Army. (U. S. v. Miller, 208 U. 
 S., 32, construing the law as it existed prior to 
 May 13, 1908, viz. Act of Mar. 3, 1899, sec. 13, 
 30 Stat., 1004, and sees. 1098 and 1261, R. S.) 
 
 A determination of who are aids should be 
 arrived at by a consideration of the nature and 
 character of the duties of the officers constitut- 
 ing the personal staff of a flag officer, and not 
 made to depend upon whether they are techni- 
 cally designated as aids. (U. S. r. Miller, 208 
 U. S., 32. )_ 
 
 An aid in the Navy is an officer legally or- 
 dered to duty with an admiral, vice admiral, 
 or rear admiral, to perform for him strictly 
 personal, confidential, and routine duties. 
 These duties can not be combined with the 
 duties of a fleet ordnance officer or a.ny other 
 officer who has other duties to perform separate 
 and distinct from the duties of an aid. (Knox 
 r. U. S., 52 Ct. Cls., 22, holding that an officers' 
 appointment as fleet ordnance officer did not 
 constitute him an aid of the commander in 
 chief.) 
 
 No officer above the rank of lieutenant in the 
 Na\'y is entitled to pay as an aid to a rear ad- 
 miral under the act of May 13, 1908, fixing the 
 pay of aids. (.Knox v. U. S., 52 Ct. Cls., 22.) 
 
 Under Revised Statutes, section 1098, no 
 officer above the rank of captain in the Army 
 could legally become an aid to a major general. 
 It follows (no statute or regulation having 
 changed the qualifications of aids in the Na\^) 
 that no officer above the rank of lieutenant m 
 the Naw can be entitled to pay as aid to a rear 
 admiral. Congress, in fixing the pay of aids in 
 the Navy by the act of May 13, 1908, must have 
 had in mind the qualifications which at that 
 time were prescribed for aids in the Army and 
 which up to that time had been the qualifica- 
 tions for aids in the Navy. (Knox r. U. S., 52 
 Ct. Cls., 22. See also, Tompkins v. U. S., 52 
 Ct. Cls., 30; Helm d. U. S., 52 Ct. Cls., 32.) 
 
 The proA-ision of the Navy pay act of May 
 13, 1908 (35 Stat., 198), considered in connec- 
 tion with provisions of the Navy Regulations 
 relating to the rank of "aids," is unambiguous, 
 and entitles a naval officer with the rank of 
 Lieutenant commander serving at sea as aid 
 to a rear admiral of the senior nine to the 
 additional compensation provided by the 
 act of May 13, 1908. The Navy Regulations 
 may designate the rank of "aids" when the 
 statute has made appropriations for their 
 pay. In this case the regulations then_ in 
 force allowed an officer with the rank of lieu- 
 tenant commander to be detailed as aid, 
 and as he complied with the regulations^ he 
 was entitled to the additional pay notwith- 
 standing that at the time officers of corre- 
 
 815 
 
Sec. 1556. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 spondijig rank in the Army were not qualified 
 to act as aids to majors general. (Jones v. 
 V. S., 49 Ct. Cls., IG; affirmed, Holmes v. 
 U. S., 49 Ct. Cls., 70) 
 
 Appointments as aids are, under the Navy 
 llegulations, to be made by the Secretary 
 of the Navy. A lieutenant in the Navy 
 ordered by the Secretary to report to a rear 
 admiral, commandant of a navy yard, to 
 perform such duty as the commandant might 
 assign him, and Avho was assigned by the 
 coumiandant pursuant to this order of the 
 Secretary to duty as his aid, is entitled to 
 additional pay pro\-ided for aids to rear ad- 
 mirals, the order of the Secretary being suf- 
 ficient authority to the commandant to make 
 such assignment; but the appointment of 
 an aid by the commander in chief of a fleet 
 is void ab initio. The regulations require 
 that in all cases aids must be nominated to 
 the Secretary by the officer under whom they 
 are to serve. He could not become entitled 
 to the additioanl pay of aid merely by being 
 called an aid by his commanding officer or 
 by having the word "aid" affixed to his name 
 in the Navy Register. (Knox v. U. S., 52 
 Ct. Cls., 22, distinguishing Frucht v. U. S., 
 49 Ct. Cls., 570.) 
 
 "^Tiere a lieutenant of the Na\y serves as 
 aid to the commandant of a navy yard under 
 section 1469, Revised Statutes, and such 
 commandant was a rear admiral, held, that 
 the aid is entitled to the additional pay pro- 
 vided for by the act of May 13, 1908. In 
 this case the Secretary of the Navy ordered 
 the lieutenant to report to the commandant 
 of the navy yard for such duty as the latter 
 might assign, and the commandant, a rear 
 admiral, detailed him to duty as his aid. 
 (Frucht V. U. S., 49 Ct. Cls., 570.) 
 
 If the commandant happens to be a rear 
 admiral, the aid will be entitled to the addi- 
 tional pay_pro\dded by the act of May 13, 
 1908, and ii the commandant happens to be 
 an officer of inferior rank, the aid will not be 
 entitled to such additional pay, the same 
 incongruity appears in regard to aids for 
 officers afloat; a rear admiral in command 
 of a squadron is entitled to an aid who would 
 receive the extra pay provided by the act 
 of May 13, 1908, w^hile a captain exercising 
 the same command would not be so entitled. 
 (Frucht V. U. S., 49 Ct. Cls., 570.) 
 
 The commanding officer of a fleet has no 
 power to appoint an aid for a rear admiral com- 
 manding a division; while the officer might 
 have to obey an order of his superior officer, 
 he is not thereby entitled to the additional 
 pay pro\dded for those legally detailed as aids. 
 (Knox V. U. S., 52 Ct. Cls., 22; Palmer v. U. S., 
 52 Ct. Cls., 31.) 
 
 A lieutenant in the Navy is entitled to addi- 
 tional pay as aid to a rear admiral during a 
 period that he served as such aid. notwithstand- 
 ing that upon subsequent promotion to the 
 grade of lieutenant commander he became 
 entitled to the rank and pay of the latter 
 grade retroacti^•ely, covering the same period 
 for which he had received aid's pay; Avhile he 
 became constructively a lieutenant commander 
 during that period, ne was not such in fact. 
 (Downes v. U. S., 52 Ct. Cls., 237, 243, 327.) 
 
 The Secretary of the Na\^'s assignment of 
 a captain of the Na^'y to duty with the rank and 
 title of roar admiral, by authority of section 
 1434, Revised Statutes, does not make such 
 officer a rear admiral within the meaning of 
 the law providing additional pay for aids to 
 rear admirals. (17 Comp. Dec, 54.) 
 
 A lieutenant in the Navy serving as flag 
 secretary and aid to a rear admiral designated as 
 commander in chief of a fleet, under the act of 
 March 3, 1915 (.38 Stat., 941, 942), is not entitled 
 to pay as an aid to an admiral. The designa- 
 tion of said rear admiral as commander in 
 chief conferred upon him the rank of admiral, 
 ))ut did not invest him with the office of admi- 
 ral. (21 Comp. Dec, 840.) However, an offi- 
 cer serving as aid to a rear admiral holding the 
 rank of admiral as commander in chief of a 
 fleet is entitled to the additional pay allowed 
 by law for aids to rear admirals. (Comp. 
 Dec, Oct. 13, 1915, 176 S. and A. Memo., 3810.) 
 
 An officer of the Navy serving as aid to the 
 Admiral of the Navy is not entitled, under the 
 assimilating pro^^sions of section 13 of the Navy 
 personnel act of March 3, 1899 (30 Stat., 1007), 
 to higher rank and pay as provided by section 
 1096, Re\Tsed Statutes, for aids to the General 
 of the Army. That section had ceased to exist 
 as the result of the nonexistence of the grade 
 of General of the Army years before the re-cre- 
 ation of the office of Admii-al in 1899. Further- 
 more, Congress in the Na\'y pay act of May 13, 
 1908 (35 Stat., 127), in terms specifically pro- 
 vided for the pay of every officer in the Navy, 
 including the Admiral and embracing extra 
 compensation to aids to rear admirals, making 
 no proA-isions whatever for compensation for 
 services which might be rendered by an officer 
 acting as aid to the Admiral. The incongi-uity, 
 if any, which might result from providing for 
 extra compensation for an aid to a rear admiral, 
 and not for aids to the higher officer, the 
 Admiral, would be but the conseq^uence of 
 legislative omission, and would not justify to 
 exertion of judicial power for the purpose of 
 re-creating a provision of law concerning aids to 
 the General of the Army which has long since 
 ceased to exist, in order to afford a subject upon 
 which the assimilating provision of the Navy 
 personnel act of 1899 might operate. (Wood 
 V. U. S., 224 U. S., 132. See also Caldwell, 
 V. U. S., 44 Ct. Cls., 604; Wood v. U. S., 44 Ct. 
 Cls., 611.) 
 
 An officer of the Navy detailed to duty as aid 
 to the Chief of Naval Operations is not entitled, 
 while so serving, to the additional pay pro\dde(i 
 in the act of May 13, 1908, for aids to rear ad- 
 mii'als, although the Chief of Naval Operations 
 holds the oftice of rear admiral in the Navy and 
 has the rank but not the office of Admiral while 
 so serving. This case differs from one in which 
 an officer is expressly ordered to duty as aid to 
 a rear admu-al, in that here the officer's orders 
 were to duty as aid to the Chief of Naval Op- 
 erations and not as aid to a rear admiral. (24 
 Comp. Dec, 190.) 
 
 Under section 1262, Revised Statutes, and 
 the act of June 30, 1882 (22 Stat., 118), an aid 
 to a rear admiial is not entitled to have his 
 longevity pay calcidated upon the additional 
 pay which he receives as aid, that being, under 
 section 1261, Revised Statutes, an allowance 
 
 816 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1556. 
 
 in addition to and not a part of the pay of his 
 rank. (U. S. v. Miller, 208 U. _S., 32.) 
 
 A lieutenant in the Navy serving as aid to a 
 rear admiral was entitled, under the Navy 
 personnel act of March 3, 1899, to the additional 
 $200 allowed to a lieutenant serving as aid to a 
 major general, under section 1261, Revised Stat- 
 utes, but not to the mounted pay allowed to 
 the Army lieutenant serving as such aid under 
 section 1301, Army Regulations. (U. S. v. 
 Crosley, 196 U. S., 327.) 
 
 An officer of the Navy is entitled to the addi- 
 tional pay allowed an aid when said officer 
 enters upon duty under proper designation as 
 aid to a rear admiral, and is entitled to such 
 pay while on authorized allowanceof leave if, 
 during such leave, his designation as aid 
 remains unchanged. (17 Comp. Dec, 104.) 
 
 For other cases, see note to section 1469, 
 Revised Statutes. 
 
 Aviation duty. — By act of March 3, 1915 (38 
 Stat., 939), it was pro-sided that "hereafter 
 officers of the Navy and Marine Corps appointed 
 student naval aviators, while lawfully detailed 
 for duty involving actual flying in air craft, 
 including balloons, dirigibles, and aeroplanes, 
 shall receive the pay and allowances of their 
 rank and service plus thirty- five per centum 
 increase thereof; and those officers who have 
 heretofore qualified, or may hereafter qualify, 
 as naval aviators, under such rules and regula- 
 tions as have been or may be prescribed by th^ 
 Secretary of the Navy, shall, while lawfully 
 detailed for duty involving actual flying in 
 air craft, receive the pay and allowances of 
 their rank and service plus fifty per centum 
 increase thereof * * *: Provided, That not 
 more than a yearly average of forty-eight 
 officers * * * of the Navy, and twelve 
 officers * * * of the Marine Corps, de- 
 tailed for duty involving actual flying in air 
 craft, shall receive any increase in pay while on 
 duty involving actual flying in air craft, nor 
 shall any officer in the Navy senior in rank to 
 commander, nor any officer in the Marine 
 Corps senior in rank to major, receive any in- 
 crease in pay or allowances by reason of such de- 
 tail or duty. " 
 
 By act of August 29, 1916 (39 Stat., 582, 586), 
 it was provided that "the officers detailed and 
 the enlisted men of the Naval Flying Corps 
 shall receive the same pay and allowances that 
 are now provided by law for officers and en- 
 listed men of the same grade or rank and rating 
 in the Navy and Marine Corps detailed to duty 
 with aircraft involving actual flying"; that 
 "officers and enUsted men, while detailed as 
 student aviators and student airmen involving 
 actually flying in aii'craft, shall receive the same 
 pay and allowances that are now pro\ided 
 by law for officers and enlisted men of the same 
 grade or rank and rating in the Navy detailed for 
 duty with aircraft '' ; "that student flyers ap- 
 pointed by the Secretary of the Navy, during a 
 period of four years following said act, for in- 
 struction and training in aeronautics '"shall 
 receive the same pay and allowances as mid- 
 shipmen at the United States Naval Academy " ; 
 and that "student flyers shall, after receiving 
 a certificate of qualification as an aviator for 
 actual flying in aircraft, rank with midshipmen 
 
 and shall receive the same pay and allowances 
 as midshipmen, plus fifty per centum thereof." 
 
 By act of July 1, 1918 (40 Stat., 718), it was 
 provided that thereafter the "allowances" of 
 "officers, enlisted men, and student flyers of 
 the naval service shall in no case be increased 
 by reason of the performance of aviation duty. " 
 
 Flights performed by an officer of the Navy 
 prior to receipt of orders to duty involving 
 actual flying in aircraft do not constitute duty 
 performed under a lawful detail, and therefore 
 do not entitle the officer to the increased pay 
 and allowances authorized by the act of March 
 3, 1915. (26 Comp. Dec, 93.) 
 
 An officer designated as naval a\iator on the 
 date that he qualified as such is entitled to the 
 increased pay authorized by the act of March 
 3, 1915, from the date of such designation, and 
 not merely from the date that the designation 
 was received by him. (Comp. Dec, Jan. 30, 
 1917, 191 S. and A. Memo., 4149.) 
 
 If in point of fact an officer was engaged under 
 proper orders in actual flying at the time an 
 order was issued by the Secretary of the Navy 
 detaihng him to duty involving actual flying 
 in heavier-than-air craft, and prior to receipt by 
 him of said detail, he is entitled to the addi- 
 tional pay provided for such duty from the date 
 the detail was issued. (Comp. Dec, Apr, 14, 
 1913, 146 S. and A. Memo., 2483.) 
 
 Officers and enlisted men of the Navy who are 
 properly detailed, under the act of March 3, 
 1915 (38 Stat., 928, 939), for duty involving 
 actual flying in aircraft, are entitled to the addi- 
 tional pay provided in that act wlrile on author- 
 ized leave of absence within the period of such 
 detail. (22 Comp. Dec, 292; see also, 23 
 Comp. Dec, 589; 24 Comp. Dec, 232.) 
 
 An officer of the Army detailed for duty re- 
 qiuring him to make regular and frequent aerial 
 flights is entitled to the increased pay author- 
 ized for such duty during the period he is dis- 
 abled by reason of injuries received in the line 
 of duty as aviator. (25 Comp. Dec, 50.) 
 
 The detachment from duty involving actual 
 flying of a student naval aviator because of in- 
 juries received in line of duty implies a cessa- 
 tion of such duty for an indefinite period and 
 terminates the right to the additional pay pro- 
 vided therefor while the officer is undergoing 
 treatment. (25 Comp. Dec, 872.) 
 
 An officer of the Navy detailed to duty in- • 
 volving actual flying in aircraft is not entitled 
 to the additional_ pay provided for that duty 
 during a period in which such duty was not 
 performed by him, notwithstanding that he was 
 prevented from performing suchduty during 
 said period because of his being interned in a 
 neutral country or held prisoner by the enemy. 
 (25 Comp. Dec, 169; but see decision of Court 
 of Claims, noted below.) 
 
 An officer of the Navy detailed as a student 
 aviator is not entitled to the additional pay 
 provided for aviation duty during a period that 
 he was not performing duty involving actual 
 flying, not\vithstanding that he was prevented 
 from performing such duty during said period 
 because of conditions directly resulting from a 
 hurricane and over which he had no control. 
 (Comp. Dec, Aug. 8, 1917, 198 S. and A. Memo., 
 
 817 
 
Sec. 1556. 
 
 Ft. 2. REVISED STATUTES. 
 
 The Navy. 
 
 4334 ; but see decision of Court of Claims, 
 noted below.) 
 
 In any case where an officer or enlisted man 
 detailed to duty involving actual flying in air- 
 craft is not engaged in actual flying for an un- 
 reasonable period after his order of detail, pay- 
 ment of the additional pay provided in the act 
 of March 3, 1915, is not authorized. As to what 
 would be considered by the Comptroller of the 
 Treasury as such an "unreasonable time" 
 would depend upon the facts in each particular 
 case. (23 Comp. Dec, 589; but see decision of 
 Court of Claims, noted below.) 
 
 An oflicer detailed by the Secretary of the 
 Navy to duty involving actual fljang in aircraft, 
 as shown by said detail, is not entitled to the 
 additional pay provided by law for officers so 
 detailed, unless in the opinion of the Comp- 
 troller of the Treasury "the duty which the 
 order was for in fact included actual fljdng." 
 The Comptroller of the Treasury holds that it 
 is the duty of his office to determine in any case 
 whether or not the duty to which an officer of 
 the Navy is detailed by the Secretary of the 
 Navy involves actual flying in aircraft, and that 
 the question of jurisdiction raised by the Sec- 
 retary of the Navy is one which can be decided 
 only by the comptroller. The Comptroller of 
 the Treasury regards loss of life in the perform- 
 ance of duty for which the additional pay is 
 given aa evidence which would certainly pass 
 through his office the accounts of an officer for 
 additional pay for any period within reason 
 prior to his death. (24 Comp. Dec, 11; but see 
 decision of Court of Claims, noted below.) 
 
 Under the act of March 3, 1915 (38 Stat., 939, 
 940), an enlisted man of the Nayy is entitled to 
 the additional pay allowed by law "while de- 
 tailed for duty involving actual flying in air- 
 craft." The pay is not made dependent upon 
 the number of flights while on such duty, but 
 is made dependent on the detail to such duty. 
 Congress did not fix the pay on the number of 
 times an enlisted man actually flew, nor on the 
 number of davs he was engaged in actual flying. 
 When, therefore, he was lawfully detailed to 
 duty involving actual fl.ydng in aircraft he must 
 be regarded and treated as entitled to the con- 
 sequences of such detail and to the pay pro- 
 \'ided for such duty. (Luskey v. U. S., Ct. 
 Cls. No. 34241, decided Nov. 7, 1921, overruling 
 contrary decisions of the Comptroller of the 
 Treasury, noted above.) 
 
 An officer of the Navy ordered to perform 
 duty as student naval aviator in addition to his 
 regular sea duty is entitled, if he performs actual 
 flights under said detail, to the 35 per cent 
 increase in shore pay only from the time he 
 reported for such duty until he left the station 
 to return to his ship, such increase not to be 
 computed on his increase for sea duty nor on 
 his allowances. \\Tiere the orders do not ex- 
 pressly impose the continued discharge of sea 
 duty, but state that the fljang duty is not to 
 interfere with duties already assigned, the pre- 
 sumption is that the shore duty is temporary 
 and additional to the regular duty, and there- 
 fore the officer is entitled to sea duty pay while 
 performing said temporary duty. (26 Comp. 
 Dec, 93.) 
 
 Shore duty beyond sca^. — "All officers on 
 sea duty and all officers on shore duty beyond 
 
 the continental limits of the United States 
 shall while so serving receive ten per centum 
 additional of their salaries and increase as 
 above provided, and such increase shall 
 commence from the date of reporting for 
 duty on board ship or the date of sailing from 
 the United States for shore duty beyond 
 the seas or to join a ship in foreign waters." 
 (Act May 13, 1908, 35 Stat., 128. The words 
 "as a])ove provided" refer to the rates of pay 
 for the various ranks as prescribed by the 
 act of May 13, 1908, and wliich are set "forth 
 above in the notes under this section.) 
 
 The additional pay pro\dded by the act of 
 May_ 13, 1908, for shore duty beyond seas, 
 applies to commissioned officers only; mid- 
 shipmen and warrant officers are not entitled 
 to such increase. (14 Comp. Dec, 882; see 
 also Olliff V. U. S., 46 Ct. Cls., 349; compare 
 Prindle v. U. S., 41 Ct. Cls., 8.) As to addi- 
 tional pay allowed warrant officers for foreign 
 shore duty, see act of July 11, 1919 (41 Stat., 
 140), noted above under "Warrant officers, 
 acting warrant officers, and commissioned 
 warrant officers . ' ' 
 
 The act of March 2, 1901 (31 Stat., 903), 
 relating to the Army, provided that "here- 
 after the pay proper of all officers and en- 
 listed men serving beyond the limits com- 
 prising the Union and Territories of the United 
 States contiguous thereto shall be increased 
 ten per centum for officers and twenty per 
 centum for enlisted men over and above 
 the rates of pay proper as fixed by law for 
 time of peace, and the time of such serWce 
 shall be counted from the date of departure 
 from said States to the date of return thereto." 
 (See also act of June 30, 1902, 32 Stat., 512, 
 to same effect.) The act of March 3, 1901 
 (31 Stat., 1108), relating to the naval service, 
 provided that "officers of the Navy and officers 
 and enUsted men of the Marine Corps who 
 haA'e been detailed or may hereafter he de- 
 tailed for shore duty in Alaska, the Philip- 
 pine Islands, Guam, or elsewhere beyond 
 the continental limits of the United States 
 shall be considered as having been detailed 
 for ' shore duty beyond seas ' and shall receive 
 pay accordingly, with such additional pay 
 as may be pro\aded by law for ser\ice in 
 island possessions of the United States." 
 The act of March 3, 1899 (30 Stat., 1007), 
 provided that "when naA'al officers are de- 
 tailed for shore duty beyond seas they shall 
 receive the same pay and allowances as are 
 or may be provided by or in pursuance of law 
 for officers of the Army for duty in similar 
 places." Under these laws it was held, in 
 McCully V. U. S. (42 Ct. Cls., 275), that an 
 officer of the Navy detached from shore duty 
 beyond seas and ordered home continues 
 to be entitled to his ten per cent increase 
 until his return to the United States. The 
 act of May 13, 1908, does not change the law 
 as it previously existed so as to deprive naval 
 officers of the right to increased pay while 
 returning home upon orders from foreign 
 stations. Said act expressly provides that 
 "nothing herein shall be so construed as to 
 reduce the pay or allowances now authorized 
 by law for any commissioned, warrant, or 
 appointed officers, or any erdisted man of 
 
 818 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1556. 
 
 the active or retired lists of the Navy, and 
 all laws inconsistent with this pro^•ision are 
 hereby repealed." Taking into considera- 
 tion the clause last quoted, and the legisla- 
 tive proceedings, which show that it was 
 the intention of Congress in the act of May 
 13, 1908, to place officers of the Ai-my, Navj^, 
 and Marine Corps exactly on the same basis 
 as to pay, and not to make an unjust discrim- 
 ination between such officers, held, that offi- 
 cers of the Navy are still entitled to the bene- 
 fit of the act of March 2, 1901, so far as relates 
 to the length of time dm'ing which they are 
 entitled to the increased 10 per cent of pay 
 for shore duty beyond seas. (Gearing v. 
 U. S., 46 Ct. Cls., 187.) 
 
 The decision of the Court of Claims in the 
 Geai-ing case related to an officer who en- 
 tered the Navy prior to the passage of the 
 act of May 13, 1908, and is not, therefore, 
 decisive of the question presented in the 
 case of an officer who entered the ser\ice after 
 that date. Nevertheless, held, that officers 
 of the Navy appointed after said act, and 
 who are detailed for shore duty beyond seas, 
 are entitled to retain the 10 per cent addi- 
 tional pay until their arrival in the United 
 States. There is nothing in the act of May 
 13, 1908, which requires that said additional 
 pay shall cease upon their detachment from 
 foreign duty, and the reasonable inference 
 fi-om the language used is that Congress in- 
 tended, when it said that this increased pay 
 should commence from the date of sailing from 
 the United States, that the point of departtu-e 
 from the United States, indicated as the 
 beginning point for the increased pay, should 
 be the terminating point for increased pay 
 upon retiun. (Comp. Dec, Jan. 24, 1914, 
 155 S. and A. Memo., 2962.) 
 
 Prior to the act of March 2, 1901 (31 Stat., 
 903), Army officers were not allowed the 
 extra pay pro^'ided for foreign service from 
 the date of depaitiue from the United States 
 to the date or return thereto; and the same 
 was true as to naval officers recei\ing Army 
 pay under the act of March 3, 1899. (Mc- 
 Gowan v. U. S., 49 Ct. Cls., 454, citing 6 Comp. 
 Dec, 947, and 7 Comp. Dec, 670.) 
 
 WTiere an officer of the Navy was detailed 
 to sea duty which necessitated a journev by sea 
 on a merchant vessel to reach the place ap- 
 pointed for such duty, he is not an officer "de- 
 tailed to shore duty beyond seas" within the 
 meaning of section 13 of the Navy personnel 
 act of March 3, 1899 (30 Stat., 1007). Although 
 his duty during such voyage on a merchant 
 vessel was not sea duty and did not entitle him 
 to sea pay, neither was it shore duty beyond 
 seas, first, because he was not ordered to per- 
 form the latter dut\% and second, because he 
 never actually performed any such duty re- 
 gardless of h^ detail. The statutes made it 
 ordinary shore duty. (McGrowan v. U. S., 49 
 Ct. Cls., 454.) 
 
 The claim of an officer detached from sea 
 duty abroad for additional pay for performance 
 of shore duty beyond seas while in Manila 
 waiting for the Army transport in which he 
 was to take passage back to the United States, 
 and his claim for sea-duty pay while aboard said 
 vessel en route to the United States, is governed 
 
 by the decision in Farenholt v. U. S. (42 Ct. 
 Cls., 114, noted below). (McDonald v. U. S., 
 48 Ct. Cls., 123; see also note to sec. 1571, 
 
 ■RON 
 
 The act of May 13, 1908 (35 Stat., 128), pro- 
 vides that all officers on sea duty and all officers 
 on shore duty beyond the continental limits of 
 the United States shall receive 10 per cent 
 additional pay from the date of reporting for 
 duty on board ship or of sailing from the United 
 States; but it also pro\-ides that nothing shall 
 be construed so as to reduce the pay or allow- 
 ances then authorized by law for officers and 
 enlisted men. The first provision of the said 
 act was intended to assimilate the pay of all 
 officers of the Army and Navy performing simi- 
 lar duty in similar circumstances, but the 
 second pro\-ision saves to all officers any legisla- 
 tive discrimination theretofore existing and 
 preserves intact the pay and allowances exist- 
 ing at the time of the passage of the act of 1908. 
 (McDonald v. U. S., 48 Ct.tls., 123.) 
 
 The act of March 2, 1901 (31 Stat., 903), fol- 
 lowed by the act of March 3, 1901 (31 Stat., 
 1108), pro\ided in terms for extra pay for shore 
 duty beyond the limits of the United States and 
 expressly applied to the accounting thereof 
 "from the date of departure from said States 
 to the date of retm-n thereto. " In ]\IcCully v. 
 United States (42 Ct. Cls., 275) these statutes 
 were appUed to naval officers on shore duty be- 
 yond seas, under the assimilating clause of the 
 act of March 3, 1899, section 13 (30 Stat., 1007). 
 It follows that the act of May 13, 1908, saves to 
 officers of the Naw for shore dutj'- beyond seas 
 the pay fixed by the foregoing enactments. In 
 Gearing v. United States (46 Ct. Cls., 187) it 
 was held that the act of May 13, 1908, did not 
 repeal the statutes upon which the McCully 
 case was based. (McDonald v. U. S., 48 Ct. 
 Cls., 123.) 
 
 Officers of the Navy are entitled to the 10 
 per cent increase authorized for shore duty be- 
 yond the continental limits of the United 
 States while on duty at_ the naval station 
 Hawaii, and while returning to the United 
 States from such duty. The Army act of 
 August 24, 1912 (37 Stat., 576), providing that 
 "hereafter the laws allowing increase of pay to 
 officers and enlisted men for foreign ser^dce 
 shall not apply to ser\ice in the Canal Zone, 
 Panama, Hawaii, or Porto Rico, " does not 
 apply to officers of the Navy who derive their 
 right to additional pav for shore duty beyond 
 seas from the act of Mav 13, 1908. (22 Comp. 
 Dec, 35.) 
 
 Shore duty beyond seas is exceptional duty, 
 both as to officers of the Army and Navy, and a 
 naval officer must be "detailed for shore duty 
 beyond seas" before he can "receive the same 
 pay and allowances as are or may be provided 
 by or in pursuance of law for officers of the 
 Army detailed for duty in similar places, " as 
 prescribed by the Navy personnel act of March 
 3, 1899, section 13. (Ackley v. U. S., 40 Ct. 
 Cls., 216.) 
 
 An officer of the Navy assigned by proper 
 authority to sea duty on a vessel at Guam can 
 not be considered as "detailed for shore duty 
 beyond seas" within the intent of the Navy 
 personnel act of March 3, 1899, section 13 m 
 Stat.. 1007), and the act of March 3, 1901 (31 
 
 819 
 
Sec. 1556. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Stat., 1108), because the governor of (uiam, by 
 a verbal order, directed him to do duty on 
 shore. (Furlong v. U. 8., 45 Ct. Cls., 49:^.) 
 
 Duty performed on sliore by a naval oflicer 
 without naving been detailed for shore duty 
 must be regarded as temporary service per- 
 formed while he otlicially remains on board thc^ 
 vessel to wliieli he is attached. The service 
 of a naval ofiic(>r on shore duty beyond seas is 
 exceptional service; to entitle liitn to the extra 
 
 {)ay tlierefor he must show that he A\as detailed 
 or such service. (Furlong v. U. S., 45 Ct. 
 Cls., 49;^.) 
 
 Tlie naval personnel act of March 3, 1899, 
 section \?>, alloAving certain oflicers of the 
 Navy the same pay and allowances as officers 
 of corresponding rank in the Anny, did not 
 entitle oflicers of the Navy, for services on 
 naval vessels in Philippine and Chinese 
 waters, or be>'ond the limits of the States 
 comprising the Union, to the 10 per cent 
 additional pay giAen to Army officers under 
 the acts of May 2fi, 1900 (31 Stat., 211), and 
 March 2, 1901 (.31 Stat., 903). Wliile the inten- 
 tion of Congress in the personnel act was to put 
 officers of corresponding rank in the Army 
 and Navy on the same general footing with 
 respect to their general pay and to make the 
 act prospective in its application to any future 
 legislation by which the general pay of Army 
 officers might be increased. Congress may 
 increase the pay of Army oflicers for services 
 in particular places and under special cir- 
 cumstances without thereby intending such 
 increase to apply to naval officers. (U. S. 
 V. Thomas, 195 U. S., 418.) 
 
 A naval officer performing sea service in 
 foreign waters was not entitled by the Navy 
 personnel act to the increased 10 per cent 
 of pay given Army officers for like duty. Only 
 shore' duty beyond seas entitled Navy oflicers 
 to such increased pay. (U. S. v. Thomas, 
 195 U. S., 418, reversing Thomas v. U. S., 
 38 Ct. Cls., 719; see also Thomas v. U. S., 38 
 Ct. Cls., 113.) 
 
 Under the Navy personnel act, section 13 
 (30 Stat., 1007), and the act of May 26, 1900 
 (31 Stat., 211), and the act of March 3, 1901 
 (31 Stat., 1108), an officer .of the Navy on 
 shore duty in the Philippine Islands was 
 entitled to the increased pay allowed for 
 shore duty '-beyond seas." The Philippine 
 Islands is "beyond seas" within the mean- 
 ing of these statutes. (Irwin v. U. S., 38 Ct. 
 Cls., 87.) 
 
 The words "pay proper" in the act of May 
 26, 1900 (31 Stat., 211), includes longe\dty 
 pay, and the increased pay allowed for sliore 
 duty in the Philippine Islands should be 
 computed accordingly. (Irwin v. U. S., 
 38 Ct. Cls., 87; McCuUy v. U. S., 42 Ct. Cls., 
 275.) 
 
 The term "beyond seas" generally means 
 out of the Kingdom of England; out of the 
 United States; out of a State. The term 
 must receive the legal interpretation usually 
 given to it in this country and in England, 
 unless there is an indication to the contrary. 
 When the act of May 26, 1900 (31 Stat., 211), 
 w^as passed the Philippine Islands were un- 
 equivocally "beyond seas" \vithin the mean- 
 ing of the act of March 3, 1899 (30 Stat., 1007), 
 
 as the treaty under which it became a pos- 
 session of the ITnited States had not then been 
 ratified. (Irwin v. U. S., 38 Ct. Cls., 87.) 
 
 Service in Alaska is "shore duty beyond 
 the continental limits of the United States," 
 and an oflicer performing service there is 
 entitled to the increased pay provided for 
 such service under the act of May 13, 1908 
 (37 Stat., 128), and the act of IMarch 3, 1901 
 (31 Stat., 1108). (Downey v. U. S., 50 Ct. 
 Cls., 273.) 
 
 Where an assistant surgeon in the Navy 
 performed shore duty beyond seas, at a naval 
 hospital in the Philippine Islands, pursuant 
 to an order detailing him for such duty, he 
 was entitled to 10 per cent additional com- 
 pensation calculated on the basis of his maxi- 
 mum pay. The Philippine Islands constitute 
 a "foreign station" for the purpose of extra 
 pay under the act of May 26, 1900 (31 Stat., 
 211), which was in force when he performed 
 such duty. (Thompson v. U. S., 49 Ct. Cls., 
 459.) 
 
 The duty status of an officer serving beyond 
 seas remains the same for all purposes until his 
 return home. His detachment from ser\dce be- 
 yond seas does not take effect until his return; 
 and his duty status continues during delay in 
 returning, if such delay was allowed as leave of 
 absence and he was entitled to such leave by 
 law. The permission given to the officer in this 
 case, to delay two months in returning to the 
 United States, in effect and as a matter of fact 
 gave him a leave of absence for sixty days. 
 (Izard V. U.S., 48 Ct. Cls., 367. Under prior 
 laws it had been held that officers were entitled 
 to the increased pay only while performing 
 shore duty beyond seas, and not while in transi- 
 tu or sick in hospital abroad. See Farenholt v. 
 U. S., 42 Ct. Cls., 114; Thompson v. U. S., 49 
 Ct. Cls., 459.) 
 
 A naval officer ordered to a hospital for treat- 
 ment while waiting the arrival of a vessel to 
 which he was to be attached will not be entitled 
 while in hospital to shore duty pay "beyond 
 seas," under the Navy personnel act, section 
 13. (Ackley v. U. S., 40 Ct. Cls., 216.) 
 
 An officer of the Navy while on shore duty 
 beyond seas is entitled when on leave of ab- 
 sence taken abroad to the increased pay pro- 
 \dded for such duty by the act of May 13, 1908. 
 (19 Comp. Dec, 608.) 
 
 A naval officer granted leave of absence from 
 shore duty beyond seas is entitled to the addi- 
 tional pay provided for such duty while en 
 route to the United States and during the 
 period of his return therefrom to his post of 
 duty, but is not entitled to such pay while in 
 theUnited States. (21 Comp. Dec, 604.) 
 
 The Comptroller of the Treasury has re- 
 peatedly held that an officer is not entitled to 
 additional pay for service beyond seas while in 
 the United States, whether on temporary duty 
 or on leave. (Comp. Dec, Jan. 17, 1916, 179 S. 
 and A. Memo., 3870.) 
 
 When a naval officer on sea duty is ordered to 
 certain duty on shore beyond seas, which duty 
 is described in his orders as being a,dditional 
 but which, in fact, requires his attention to the 
 exclusion of all other duty, he is to be regarded, 
 for purposes of pay and allowances, as being on 
 shore duty beyond seas during the period of 
 
 820 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1556. 
 
 such duty. (21 Comp. Dec, 604); but his sea- 
 duty status continues, and he does not become 
 an officer sen'ing on shore duty beyond seas 
 unless he can establish as a matter of fact that 
 the duties performed by him on shore were 
 paramount to his assignment to sea service. 
 (Leach v. U. S., 44 Ct. Cls., 132; see also Fur- 
 long ('. U. S., 45 Gt. Cls., 493.) 
 
 An officer of the Navy detached from a ship in 
 foreign waters and ordered to duty at a foreign 
 station is not entitled to traveling expenses 
 while awaiting transportation to his station nor 
 to the 10 per cent additional for sea duty while 
 en route to his station on board a Government 
 vessel. (Comp. Dec, June 30, 1916, 184, S. 
 and A. Memo., 4007.) 
 
 The law makes no provision for 10 per cent 
 increase of naval officers' pay while traveling 
 from shore duty beyond seas to join a \'essel in 
 foreign waters, or \ice versa. (Comp. Dec, 
 June 24, 1913, 148 S. and A. Memo., 2662.) 
 
 An officer of the Navy who is ordered from 
 foreign shore dutv to duty on board a vessel in a 
 United States port is entitled to the 10 per cent 
 additional pay for shore duty beyond seas to 
 the date of his return to the United States. 
 (Comp. Dec, Nov. 20, 1916, 189 S. and A. 
 Memo., 4094.) 
 
 Sea duty. — See note to section 1571, Revised 
 Statutes. 
 
 Acting as pay officer. — See sections 1381 and 
 1564, Revised Statutes. 
 
 39. Longevity pay. — "There shall be al- 
 lowed and paid to each commissioned officer be- 
 low the rank of rear admiral ten per centum of his 
 current yearly pay for each term of five years 
 service in the Army, Navy, and Marine Corps. 
 The total amount of such increase for length of 
 service shall in no case exceed forty per centum 
 of the yearly pay of the grade as proxdded by 
 law: Provided, That the annual pay of captain 
 shall not exceed five thousand dollars per 
 annum; of commander, four thousand five 
 hundred dollars per annum, and of lieutenant 
 commander, four thousand dollars per annum." 
 (Act May 13, 1908, 35 Stat., 128. As to tempo- 
 rary increases in pay of the grades specified, 
 see notes above, under this section.) 
 
 As to longevity increases in pay of commis- 
 sioned warrant officers, warrant officers, mates. 
 Dental Corps, and Naval Reserve Force, see 
 notes above with reference to those specific 
 classes. 
 
 "For the purposes of computing longevity 
 pay, and retirement privileges of officers and 
 enlisted men of the Navy, all creditable service 
 in the Coast Guard and former Revenue-Cutter 
 Servdce shall be counted." (Act June 4, 1920, 
 41 Stat., 835.) 
 
 "Hereafter longevity pay for officers in the 
 Army, Navy, Marine Corps, Coast Guard, Pub- 
 lic Health Service, and Coast and Geodetic 
 Survey shall be based on the total of all service 
 in any or all of said services." (Act May 18, 
 1920, sec. 11, 41 Stat., 604.) 
 
 "All officers of the Navy shall be credited 
 with the actual time they may have served as 
 officers or enlisted men in the Regular or Volun- 
 teer Army or Navy, or both, and shall receive 
 all the benefits of such actual service in all re 
 spects in the same manner as if all said service 
 had been continuous and in the Regular Navy 
 
 in the lowest gi-ade having graduated pay held 
 by such officer since last entering the service." 
 (Act Mar. 3, 1883, 22 Stat., 473.) 
 
 "All officers who have been or may be ap- 
 pointed to any corps of the Navy or to the 
 Marine Corps after service in a different corps 
 of the Navy or of the Marine Corps shall have 
 all the benefits of their previous service in the 
 same manner as if said appointments were a 
 reentry into the Navy or into the Marine 
 Corps." (Act June 10, 1896, 29 Stat., 361.) 
 
 "Officers who have been,- or may be, trans- 
 ferred from the volunteer service to the Regular 
 Navy shall be credited Avith the sea service 
 performed by them as volunteer officers, and 
 shall receive all the benefits of such duty in the 
 same manner as if they had been, during such 
 service, in the Regular Navy." (Sec. 1412, 
 
 "RON 
 
 By act of March 3, 1899 (30 Stat., 1007), it 
 was provided that "all officers, including 
 warrant officers, who have been or may be ap- 
 pointed to the Na\'y from civil life shall, on 
 the date of appointment, be credited for com- 
 puting their pay, with five years' service." 
 By act of March 4, 1913 (37 Stat., 891), it was 
 provided that this provision "shall not apply 
 to any person entering the Navy from and after 
 the passage of this act." 
 
 "Hereafter the service of a midshipman at 
 the United States Naval Academy, or that of a 
 cadet at the United States Military Academy, 
 who may hereafter be appointed to the United 
 States Naval Academy, or to the United States 
 Military Academy, shall not be counted in 
 computing for any purpose the length of service 
 of any officer in the Navy or in the Marine 
 Corps." (Act Mar. 4, 1913, 37 Stat., 891.) 
 
 The act of March 3, 1883 (22 Stat., 473), en- 
 titles an officer to be credited with actual serv- 
 ice only, and does not include constructive 
 service credited to an officer under a special act 
 of Congress. (Laws v. U. S., 27 Ct. Cls., 69.) 
 
 Longevity pay is to be computed, except 
 where the statutes otherwise provide, from the 
 date the officer's commission was signed by the 
 President, and not from an antecedent date 
 mentioned in the body of the commission. 
 Under section 1556, Revised Statutes, the right 
 of naval officers to the longevity pay provided 
 therein depends upon the words "date of com- 
 mission" as used in that section; and the legal 
 construction to be given to those words is the 
 date when the instrument was executed; the 
 President for other purposes may insert an ante- 
 cedent date in the body of a commission; but 
 antecedent date can affect an officer's pay oidy 
 in the cases authorized by statute. (Young v. 
 U. S., 19 Ct. Cls., 145.) 
 
 The words "current yearly pay," as em- 
 ployed in Revised Statutes, section 1262, were 
 construed in United States v. Tyler (105 U.S., 
 244) to require that the calculation of longevity 
 pay should be made, not upon the sum of the 
 loase pay but on the base pay and previous 
 longevity increases thereof . Subsequently, by 
 the act of June 30, 1882 (22 Stat., 118), Congress 
 expressly dhected that the longevity increases 
 provided in section 1262 should be computed 
 "on the yearly pay of ihe grade." This act 
 was passed for the purpose of commanding a 
 method of computation which would render 
 
 821 
 
Sec. 1556. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 inapplicable the construction adopted in the 
 Tyler case (citing U. S. v. Miller. 208 V. S., 32, 
 38). Thereafter the lonsrevity pay of Army 
 officers was computed by the method directed 
 in the act of 1882. lu view of the purpose of 
 Conpress to equalize, as far as possible, tne pay 
 of Army and Xavy ofiicei-s, manifested by the 
 adoption of the XaAy pei-sonnel act of 1899 and 
 in all subsequent legislation as to such pay, 
 held, that the act of ^fay 13, 1908 (35 Stat., 127, 
 128), providino; longevity increases for Na^'y 
 officers based upon their '"'current vearly pay," 
 was intended to pro^•ide that the longevity in- 
 crease therein prescril)ed should be computed 
 according to the method then prevailing; that 
 is, upon the "yearly pay of the grade," and not 
 upon the "cvurent yearlv pav" as construed in 
 the Tvler case. (Plumrner v. U. S., 224 U. S., 
 137.) ' 
 
 The words "officers or enlisted men in the 
 Regular or Volunteer Anuy or Navy, or both," 
 as used in the law relating to longevity of 
 officers of the Na^y (see act of Mar. 3, 1883, 
 above quoted), were intended to include all 
 men regularly in the ser-\ace in the Army or 
 Na\'y : the expression" officers or enlisted men," 
 is not to be construed distributively, as re- 
 quiring that a person should be an enlisted 
 man. or an officer nominated and appointed by 
 the President, or by the head of a department, 
 but was meant to include all men in service, 
 either by enlistment or regular appointment in 
 the Army or Navy; the word "officer" is used 
 in the statute in a more general sense. (U. S. 
 V. Hendee, 124 U. S., 309, 313, followed in 
 U. S. V. Cook, 128 U. S., 254, 257.) 
 
 An officer of the Navy is entitled under the 
 act of March 3, 1883, to credit for ser\dce ren- 
 dered by him as a pa\Tnaster's clerk in com- 
 puting his longe\ity pay, although siich pay- 
 master's clerk, under the law as it then existed, 
 was neither an enlisted man nor an "officer" in 
 the constitutional sense. (U. S. v. Hendee, 
 124 U. S., 309, distinguishing U. S. v. Mouat, 
 124 U. S., 303.) _ 
 
 Service as a midshipman at the Naval Acad- 
 emy was service as an officer of the Navy, and 
 should be credited to an officer of the Na\'y in 
 computing his longevity pav under the act of 
 March 3, 1883. (U. S. v. Baker, 125 11. S., 646; 
 see also U. S. v. Cook, 128 U. S., 254; U. S. v. 
 Morton, 112 U. S., 1; U. S. v. Watson, 130 U. S., 
 80; but see act ^lar. 4, 1913, quoted above, with 
 reference to midshipman service.) 
 
 An officer who was not in the Navy on the 
 date of the act (^lar. 4, 1913) abolishing, under 
 certain conditions, credit for constructive serv- 
 ice, but who was appointed to the Na\y^ after 
 that date, is entitled to credit for prior service, 
 both actual and constructive, based upon a for- 
 mer appointment to the Navy. The said 
 act did not deprive officers then in the Navy, or 
 thereafter reappointed, of credit for such serv- 
 ice previously earned. (22 Comp. Dec, 542; 
 see also, 24 Comp. Dec, 168, 24 Comp. Dec, 
 629, and 204 S. and A. Memo., 4505.) 
 
 Service by an officer of the Navy as an en- 
 listed man in the Marine Corps is to be credited 
 to him in calculating his longevity pav under 
 the act of March 3, 1883. (U. S. v. Dunn, 120 
 U. S., 249.) 
 
 The word "service" in section 1262, Revised 
 Statutes, providing increased pay for officers of 
 the Army "for each term of five years of serv- 
 ice," e\'identlv means "militarv service." 
 (U. S. V. La Tourrette, 151 U. S., 572.) 
 
 An aid to a rear admiral is not entitled to 
 have his longevity pay calculated upon the 
 additional pay which he receives as aid, that 
 being an allowance in addition to and not a part 
 of the pav of his rank. (U. S. v. Miller, 208 
 U. S., 32.) 
 
 A retired officer of the Navy is not entitled, 
 in computing his longe\'ity pay, to credit for 
 service rendered after his retirement. (Roget 
 V. U. S., 148 U. S., 167; see also, Thornlev v. 
 U. S., 113 U. S., 310; Faust v. U. S., 42 Ct. Cls., 
 94; 15 Comp. Dec, 76/; compare, U. S. v. 
 Tyler, 105 U. S., 244; 5 Comp. Dec, 809; and 
 see notes to sees. 1588 and 1592, R. S., as to lon- 
 gevity increases of retired officers under later 
 laws.) 
 
 An officer of the Regular Navy who was cred- 
 ited, under the act of March 3, 1883, with prior 
 ser\'ice rendered by him in the Volunteer 
 Navy is not entitled to receive the pay of higher 
 grades in the Naw from the dates that he might 
 have been promoted to such grades had he en- 
 tered the Regular Navy when he entered the 
 Volunteer Nav-y, and had he been promoted 
 from time to time under the rule of promotion 
 provided by law for the Regular Navy; the 
 court can not concur in the contention of such 
 officer that under the act of 1883, officers in his 
 situation, while denied rank and commissions 
 under the statute, have the right to the pay of 
 the se^"eral grades they might have reached if 
 their appointments in the Regular Navy are 
 treated as having been made at the date of their 
 entry into the volunteer ser^'ice. (Barton v. 
 U. S., 129 U. S., 249.) 
 
 As to the method of computing longe^dty 
 increases under the act of March 3, 1883, in the 
 cases of officers recei"ving graduated pay under 
 section 1556, Revised Statutes, see United 
 States V. Mullan (123 U. S., 186), United States 
 V. Green (138 U. S., 293), United States v. Alger 
 (151 U. S., 362), United States v. Alger and 
 United States v. Stahl (152 U. S., 384), United 
 States V. Rockwell (120 U. S., 60), White v. 
 United States (191 U. S., 545), United States v. 
 Foster (128 U. S., 435). 
 
 For other cases, as to what time coimts as 
 service in the Navy, see note to section 14-13, 
 Re\ised Statutes, and see Bvrnes v. United 
 States (26 Ct. Cls., 302), and "Davis v. United 
 States (28 Ct. Cls., 21). 
 
 The act of March 3, 1883 (22 Stat., 473), is not 
 limited to officers who had entered the Navy 
 more than once, but applies also to officers who 
 have served continuously; when such an officer 
 enters the serA-ice only once, his first entry is 
 also his last entrv within the meaning of the 
 statute. (Mullan" t'. U. S., 123 U. S., 186.) 
 
 Where an oflicer resigns one office the day 
 before his appointment to a higher one, in sub- 
 stance and in law his actual serAdce was for a 
 continuous period and not for two different 
 periods. (IT. S. r. Alger, 151 U. S., 362; U. S. 
 V. Stahl, 151 U. S., 366; U. S. v. Alger, 152 U. 
 S., 384.) 
 
 822 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1556. 
 
 Where at the time of resigning from the Navy 
 it is the intention and pm-pose of an officer to 
 reenter the service, and as soon aa he can do so 
 thereafter he does reenter the service, such last 
 appointment is not "from civil life" as con- 
 templated bv section 13 of the Navy personnel 
 act of March 3, 1899. (Barber v. it. S., 50 Ct. 
 Cls., 250. See also U. S. v. U. S. Fidelity and 
 Guaranty Co., 244 Fed. Rep., 310.) 
 
 The reinstatement of an officer, pursuant to a 
 special act of Congress, is not an appointment 
 from civil life entitling him to credit for con- 
 structive ser-\dce under the act of March 3, 1899, 
 section 13. (Stirling v. U. S., 48 Ct. Cls., 386.) 
 
 The credit of five years' constructive sei'vice 
 under the act of March 3, 1899, section 13, is in 
 addition to actual service rendered under a 
 previous appointment. (Guilmette r. U. S., 
 49 Ct. Cls., 188; 52 Ct. Cls., 219.) 
 
 Where the resignation of an officer of the Navy 
 is in good faith, and he is thereafter appointed 
 to serve in the Navy, such latter appointment 
 is from civil life and he is entitled to credit for 
 five years' constructive ser\'ice. (Guilmette v. 
 U. S., 49 Ct. Cls., 188, 52 Ct. Cls., 219.) 
 
 Where an officer was rated as an appointee 
 from ci\T.l life and for a number of years paid 
 accordingly, he is entitled to retain the pay so 
 allowed until the date his rating was corrected, 
 although under the correct interpretation of the 
 law he was not appointed from civil life. (U. 
 S. V. U. S. Fidelity and Guaranty Co., 244 
 Fed. Rep., 310.) 
 
 40. Absence from duty. See notes above, 
 under "Mates"; "Warrant officers, acting war- 
 rant officers, and commissioned warrant officers" ; 
 "Dental Corps and Nurse Corps (Female)"; 
 "Naval Reserve Force (pay for active duty) "; 
 "Additional pay for special duty (Aids to rear 
 admirals. Aviation duty, and Shore duty be- 
 yond seas)." 
 
 Leave and waiting orders. — In Hunt v. United 
 States (38 Ct. Cls., 704) the Court of Claims 
 said: "Neither the Secretary of War nor any 
 officer of the Government can force a leave of 
 absence or furlough upon an officer or soldier." 
 But as to furlough, see section 1442, Revised 
 Statutes, and note thereto. 
 
 "A leave of absence is not forced upon an 
 officer, but is granted to him for his sole accom- 
 modation." (16 Comp. Dec, 617; see also 
 note to sec. 1442, R. S.) 
 
 Prior to July 1, 1899, when the thirteenth 
 section of the Navy personnel act took effect, 
 the duty pay and leave pay of all commissioned 
 officers on the active list of the Navy were fixed 
 by section 1556, Revised Statutes. That sec- 
 tion fixed the pay of each officer of different 
 grades, whether on duty or leave, or on waiting 
 orders, including the Construction Corps, pro- 
 fessors of mathematics, and civil engineers. 
 Section 13 of the personnel act assimilating the 
 pay of commissioned officers of the Navy %vith 
 that of Army officers of corresponding rank, 
 was confined to "commissioned officers of the 
 line of the Navy and of the Medical and Pay 
 Corps." This left the Construction Corps, pro- 
 fessors of mathematics, and civil engineers 
 where they were before. The leave pay and 
 waiting-orders pay of officers of the Army to 
 which the pay of certain naval officers was thus 
 assimilated is regulated by section 1265, Re- 
 
 vised Statutes, which provides: "Officers when 
 absent on account of sickness or wounds, or 
 lawfully absent from duty and waiting orders, 
 shall receive full pay; when absent Avith leave, 
 for other causes, full pay during such absence 
 not exceeding in the aggregate thirty days in 
 one year, and half pay during such absence 
 exceeding thirty days in one year. When ab- 
 sent -without leave, they shall forfeit all pay 
 dm-ing such absence, unless the absence is ex- 
 cused as unavoidable." This section was 
 amended by the act of July 29, 1876 (19 Stat., 
 102), so as to provide that "all officers on duty 
 shall be allowed, in the discretion of the Secre- 
 tary of War, sixty days leave of absence without 
 deduction of pay or allowances: Provided, 
 That the same be taken once in two years: 
 And provided further , That the leave of absence 
 may be extended to three months, if taken only 
 once in three years, or four months if taken 
 only once in four years." The act of May 13, 
 1908 (35 Stat., 127), provided that "hereafter 
 all commissioned officers of the active list of the 
 Navy shall receive the same pay and allow- 
 ances according to rank and length of service 
 * * *." One of the purposes of this act was 
 to correct the discrimination in respect of leave 
 pay between commissioned officers of the Navy 
 whose pay was assimilated with that of the 
 Army by section 13 of the personnel act and 
 officers of the Construction Corps, professors of 
 mathematics, and civil engineers, who con- 
 tinued to receive pay at the rates provided by 
 section 1556, Revised Statutes. By said act of 
 May 13, 1908, all commissioned officers of the 
 Navy were placed upon the same footing as to 
 pay and allowances, "according to rank and 
 length of service," whether on active duty or 
 not, and officers of the Construction Corps, pro- 
 fessors of mathematics, and civil engineers ac- 
 cordingly are entitled to the same benefits of the 
 law relating to the pay of Army officers when 
 on leave of absence or on waiting orders that 
 are conferred upon officers of the line of the 
 Navy and of the Medical and Pay Corps (now 
 Supply Corps). (27 Op. Atty. Gen., 261; fol- 
 lowed, Comp. Dec, Apr. 16, 1909, 98 S. and A. 
 Memo., 1036.) 
 
 "The leave year is reckoned from July 1 to 
 the following June 30, both inclusive. ' ' (Army 
 Regs., 1913, par. 1276.) 
 
 A retired naval officer assigned to active 
 duty is not entitled to cumulative leave of 
 absence that had accrued prior to his retirement, 
 notwithstanding the fact that his assignment to 
 active duty occurred immediately after his 
 retirement. (23 Comp. Dec, 307.) 
 
 The leave of absence of an officer of the Navy 
 who was ordered to his home and granted a 
 leave of absence began when he was relieved 
 from duty on board his vessel, and he is not 
 entitled to duty pay while traveling to his 
 home, as said travel was performed for his ovra 
 benefit and not on public business. (Comp. 
 Dec, Apr. 13, 1910, 110 S. and A. Memo., 1375.) 
 
 An officer of the Navy ordered to proceed to 
 his home and granted a leave of absence, and at 
 the expiration of such leave to return to his 
 station, is traveling for his own pleasure and 
 benefit and not on public business, and is not 
 entitled to mileage. (16 Comp. Dec, 611; 
 
 823 
 
Sec. 1556. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 see also Comp. Dec, June 23, 1910, 112 S. and 
 A. Memo., 1504.) . 
 
 Section 1265, Revised Statutes, pro\ides that 
 officers shall be entitled to 30 days' leave of 
 absence in one vear; and the act of July 29, 
 1876 (19 Stat., 102), provides that leave of ab- 
 sence may be extended in the discretion of the 
 Secretary of War "to four months if taken only 
 once in four years." An officer of the Navy 
 detached from duty beyond seas and ordered to 
 return home, and who is afterwards authorized 
 to delay two months en route to the United 
 States, is in effect and as a matter of fact s:iven 
 a leave of absence of 60 days, and he is entitled 
 during such leave to continue in receipt of pay 
 allowed him for shore duty beyond seas, pro- 
 vided such leave of absence was not in excess 
 of that to which he was entitled by law. (Izard 
 V. U. S., 48 Ct. Cls., 367.) 
 
 An officer ordered away from his station to 
 appear before an examinina; board preliminai-y 
 to promotion, and who after completing his 
 examination is. iipon his own request, author- 
 ized to delay his retiu-n to his station, is during 
 such delay in the status of leave oi absence 
 granted upon his ovm request, being in fact 
 relieved from duty and _ from responsibility 
 during such period, notwithstanding the pro- 
 visions of the Na\'y Regulations that "a tem- 
 porary leave of absence does not detach an 
 officer from duty nor affect his rate of pay." 
 (Roberts v. U. S., 44 Ct. Cls., 411.) 
 
 A commissioned officer of the Navy is not 
 entitled to the 10 per cent additional for sea 
 duty while on leave of absence, even though 
 the leave be of only one day's diu-ation. 
 (Comp. Dec, June 8, 1915, 172 S. and A. Memo., 
 3703.^ 
 
 The act of May 13, 1908, did not repeal prior 
 statutes regulating the pay of naval officers of 
 the Line and Pay Corps [now Supply Corps] 
 while on leave of absence, and such officers 
 while temporarily absent from their ship on 
 leave properly granted to them for periods not 
 in excess of that authorized with fiiU pay by 
 section 1265 of the Revised Statutes and the act 
 of July 29, 1876, are entitled to the present pay 
 of their grades, increased by their length of 
 service pay, in accordance with the act of ]\Iay 
 13, 1908; othertvise, to half of such amount for 
 leave so granted in excess of that authorized by 
 such statutes with full pay but such officers are 
 not entitled to receive while on leave of ab- 
 sence from sea duty the 10 per cent increase in 
 pay which they were receiving "while so serv- 
 ing." notwithstanding the pro\-ision in the act 
 of July 29, 1876, that the authorized leave of 
 absence shall be "without deduction of pay or 
 allowances." (15 Comp. Dec, 656.) 
 
 A warrant officer of the Na\'y granted leave of 
 absence from duty at sea is entitled under the 
 act of August 29, 1916 (39 Stat., 578), to full pay 
 at the rate received by him while on sea duty. 
 (23 Comp. Dec. 200. Note: The act of August 
 29, 1916, provides that "warrant officers shall 
 be allowed such leave of al^sence, with, fidl pay, 
 as is now or may hereafter be allowed other 
 officers of the United States Na\T-") 
 
 A commissioned officer of the Navy is en- 
 titled only to half pay while on leave of absence 
 in excess of the amount authorized by statute 
 
 mth full pav. fComp. Dec, June 25, 1913, 
 148 S. and a! Memo., 2670.) 
 
 An officer of the Army granted, and accept- 
 ing, leave without pay is not estopped fi'om 
 demanding the halt pay allowed by statute, 
 even though he did not protest at the affixing 
 of such a condition to the order granting the 
 leave. Public policy prohibits any attempt 
 by unauthorized agreement with an officer of 
 the United States, under the guise of a condition 
 or otherwise, to deprive him of the right to pay 
 given by statute. (U. S. v. Andrews, 240 U. S., 
 90, approving Glavey v. U. S., 182. U. S., 595.) 
 An officer of the Army who is ordered, even 
 on his own request, to proceed to a particular 
 place, including his home, and "there await 
 orders," reporting thence by letter to the Adju- 
 tant General of the Army and to the head- 
 quarters of the department to which he then 
 belongs, is not an officer "absent fi-om duty 
 with leave-' within the meaning of an act of 
 Congress which enacted that "any officer absent 
 from duty with leave, except fi'om sickness or 
 wounds, shall during his absence receive half 
 of the pay and allowances prescribed by law, 
 and no more." Such an officer is waiting 
 orders in pursuance of law, but not absent from 
 duty on leave. (U. S. v. Williamson, 23 
 Wall., 411.) 
 
 The distinction between the case of an officer 
 "absent from diity with leave," and that of an 
 officer ordered to proceed to a particular place 
 and there "to await orders, reporting thence by 
 letter to the Adjutant General of the Army and 
 to these headquarters," is too plain to require 
 much comment. While absent from duty 
 "with leave," the officer is at liberty to go 
 where he will during the permitted absence, to 
 employ his time as he pleases, and to smrender 
 his leave if he chooses. If he reports himself 
 at the expiration of his leave, it is all that can 
 be asked of him. The obligations of an officer 
 directed to proceed to a place specified, there 
 to await orders, are quite different. _ It is his 
 duty to go to that place and to remain at that 
 place. He can not go elsewhere; he can not 
 return until ordered. He is as much under 
 orders, and can no more question the duty of 
 obedience than if ordered to an ambush to lie 
 in wait for the enemy, to march to the front by 
 a particular direction, or to the rear by a speci- 
 fied time. That the assignment was made at 
 the request of the officer can make no difference. 
 The pay is regulated by the position, and not 
 by the manner or influence by which the po- 
 sition is acquired. (U. S. v. Williamson, 23 
 Wall., 411, 415.) 
 
 An officer of the Ai-my ordered fi'om a military 
 post at which he is doing duty to his home, to 
 await orders, even at his own request, is entitled 
 to mileage for travel by him in pursuance of his 
 orders. The status of the officer wliile awaiting 
 orders is different from that of an officer absent 
 from duty with leave. The officer in this case 
 was not absent on leave but was awaiting orders 
 at his home. It results that in thus proceeding 
 to his home he was traveling under orders. 
 The fact that he changed his residence while 
 awaiting orders is unimportant. Whether he 
 resided in New York or New Jersey could make 
 no difference in his position in the Army or his 
 liability or readiness to respond to any orders 
 
 824 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1556. 
 
 given to him. It was, indeed, important that 
 he should keep the depai'tment advised of Ms 
 residence, that he could be called upon when 
 it was desii-ed. This he did. (U. S. v. Phis- 
 terer, 94 U. S., 219, approving U. S. v. William- 
 son, 23 Wall., 411.) 
 
 The theory of leave or waiting orders pay is 
 that an officer while at home on leave or waiting 
 orders is at less expense than when at sea or on 
 shore duty. (Selfridge v. U. S., 28 Ct. Cls., 40.) 
 
 Where a naval constructor, entitled to pay 
 imder section 1556, Revised Statutes, be- 
 came sick while on duty and was placed in a 
 naval hospital, and upon his discharge from 
 the hospital, upon the recommendation of a 
 board of medical survey, was granted sick leave 
 for two months, held, that during the time he is 
 absent from his station on such sick leave doing 
 no duty whatever, although not formally de- 
 tached fi'om duty by express order, he was in 
 fact detached and was entitled to leave pay 
 only. (Williams v. U. S., 47 Ct. Cls., 56.) 
 
 Awaiting trial.— While under arrest and sus- 
 pended from duty awaiting trial by court- 
 martial, an officer is in the status of "waiting 
 orders" a.nd is entitled to pay and allowances; 
 forfeiture of pay and allowances can only be 
 imposed by the sentence of a lawful court- 
 martial. (Walsh V. U. S., 43 Ct. Cls., 225, citing 
 Smith V. U. S., 2 Ct. Cls., 206; Winters v. U. S., 
 3 Ct. Cls., 136; Collins v. U. S., 15 Ct. Cls., 22; 
 Sullivan v. U. S., 32 Ct. Cls., 4^2; 4 Comp. 
 Dec, 605; 6 Comp. Dec, 970.) 
 
 Where an officer is awaiting trial before either 
 a civil or military tribunal under waiting 
 orders issued by authority of the War Depart- 
 ment he is entitled to the emoluments of his 
 office, including commutation of quarters. 
 (Carrington v. U. S., 46 Ct. Cls., 279, overruling 
 11 Comp. Dec, 755, which held that the officer 
 in such case was in the status of ' 'absent without 
 leave," and not entitled to pay while on bail 
 pending an appeal to a higher civil court.) 
 
 Serving sentence. — A person in the military 
 service is not entitled to pay while serving 
 sentence of imprisonment imposed by a civil 
 court, even though during the term of imprison- 
 ment he was in the custody of the commanding 
 officer of a military station as a prisoner of the 
 civil authorities. (Comp. Dec, Dec 20, 1910, 
 118 S. and A. Memo., 1642.) 
 
 An officer suspended from rank and duty 
 piusuant to sentence of court-martial is not 
 entitled to emoluments or allowances. (Swaim 
 v.V. S., 165 U. S., 553.) 
 
 Absence tvithout leave. — A commissioned of- 
 ficer of the Navy granted a leave of absence for 
 a specified period, who does not report his ad- 
 dress on date of termination of such leave, is 
 absent without leave from such date and is not 
 entitled to any pay for the period of such 
 unauthorized absence, unless excused as un- 
 avoidable. (Comp. Dec, July 25, 1910, 113 S. 
 and A. Memo., 1521. See also note to sec. 
 1569, R. S.) 
 
 Furlough. — Pay of officers while on fmlough 
 under section 1442, Revised Statutes, is fixed 
 by section 1557, Revised Statutes. (See notes 
 to those sections.) 
 
 Absence due to misconduct. — "Hereafter no 
 officer or enlisted man in the Navy or Marine 
 Corps in active service who shall ha absent 
 
 from duty on account of injury, sickness, or 
 disease resulting from his own intemperate use 
 of drugs or alcoholic liquors, or other miscon- 
 duct, shall receive pay for the period of such 
 absence, the time so absent and the cause 
 thereof to be ascertained under such procedure 
 and regulations as may be prescribed by the 
 Secretary of the Navy: Provided, That an en- 
 listment shall not be regarded as complete 
 until the enlisted man shall have made good 
 any time in excess of one day lost on account of 
 injury, sickness, or disease resulting from his 
 own intemperate use of drugs or alcoholic liq- 
 uors, or other misconduct." (Act Aug. 29, 
 1916, 39 Stat., 580, as amended by act July 1, 
 1918, 40 Stat., 717.) 
 
 41 . Deductions for naval hospital fund. — 
 "The Secretary of the Navy shall deduct from 
 the pay of each officer, seaman, and marine, in 
 the Navy, at the rate of twenty cents per 
 month for each person, to be apphed to the 
 fund for Navy hospitals." (Sec. 4808, R. S.; 
 see also sec. 1614, R. S.) 
 
 42. Stoppage of pay, service with con- 
 tractors. — "That hereafter no payment shall 
 be made from appropriations made by Congress 
 to any officer in the Navy or Marine Corps on the 
 active or retired list while such officer is em- 
 ployed, after June thirtieth, eighteen hundred 
 and ninety-seven, by any person or company 
 furnishing naval supplies or war material to the 
 Government; and such employment is hereby 
 made unlawful after said date." (Act June 10, 
 1896, 29 Stat., 361.) 
 
 43. Waiver of pay. — Public poKcy pro- 
 hibits any attempt by unauthorized agreement 
 with an officer of the United States, under the 
 guise of a condition or otherwise, to deprive 
 him of the right to pay given by statute. (U. S. 
 V. Andrews, 240 U. S., 90, approving Glavey v, 
 U. S., 182 U. S., 595; see also Katzer v. U. S., 
 52 Ct. Cls., 32, and Kozlowski t;. U. S., 54 Gt. 
 Cls., 206.) 
 
 44. Allotments of pay. — See section 1430, 
 Revised Statutes, and note thereto. 
 
 The Secretary of the Navy has no power to 
 increase a naval officer's allotment without his 
 consent; where he attempts to do so, the officer 
 may recover the illegal excess paid under the 
 allotment, without his knowledge or consent. 
 (Melville -?;. U. S., 23 Ct. Cls., ll) 
 
 Section 3477, Revised Statutes, prohibits as- 
 signment of any claim against the UnitedStates. 
 The naval appropriation act of June 10, 1896 
 (29 Stat., 361), authorizes the Secretary of the 
 Navy to permit "officers" of the Navy and 
 Marine Corps to make allotments under certain 
 conditions. Under this authority the Secre- 
 tary issued a regulation (art. 1094, Navy Regs., 
 1909) authorizing allotments to be made, under 
 certain conditions, by "each person in the 
 Navy and Marine Corps." (Assignment of 
 wages by enlisted men of the Navy was author- 
 ized by sec. 1576, R. S.) (17 Comp. Dec, 666.) 
 
 The act of June 10, 1896, is a beneficial one 
 and provides with little expenseto the Gov- 
 ernment for a worthy object; it is not, there- 
 fore, an act that calls for a technical construc- 
 tion. Paymasters' clerks in the Navy were 
 recognized as entitled to make allotments of 
 their pay under said act. Held, that clerks to 
 assistant paymasters of the Marine Corps, in 
 
 825 
 
Sec. 1557. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 1911, were likewise entitled to make such 
 allotments under said act of 1896 relating to 
 officers. (17 Comp. Dec, 666.) 
 
 45. Reduction of pay. — It is not in the 
 power of the executive department, or any 
 branch of it, to reduce the pay of an officer of 
 the Army. The regulation of the comj)ensa- 
 tion of the officere of the Army belongs to the 
 legislative department of the Government. 
 (U. S. V. Williamson, 23 Wall., 411, 416; see also 
 cases cited above, under "43. Waiver of pay.") 
 
 Reduction by the President of the sentence 
 of an officer of the Navy from dismissal from 
 the ser^-ice to reduction to one-half sea pay for 
 five years is a mitigation of the sentence Avithin 
 the meaning of article 54, section 1624, Revised 
 Statutes. The officer whose pay has been so 
 reduced is not entitled to recover from the 
 United States the difference between one-half 
 sea pay and waiting-orders pay for the period 
 covered by the sentence. (Mullan v. U. S., 
 212 U. S., 516.) 
 
 The report and recommendation of a naval 
 board, although approved by the Secretary of 
 the Navy, did not work a forfeiture of the pay 
 of the disbui'sing officer involved, as the board 
 only recommended that he be held responsible 
 and that the amount of the loss be deducted 
 from any money that might be due him. Such 
 declaration of the investigating board might 
 have been made the basis of a com't-martial, 
 but it is well settled that the pay due to an 
 officer can only be forfeited by the sentence of a 
 court-martial.* (Worz v. U. S., 48 Ct. Cls., 80, 
 93.) 
 
 It was competent for the proper marine 
 superiors and the accounting officers of the 
 Treasury to withhold payment of the money 
 due to an officer until he, or his representative 
 after his death, shall establish that the money 
 committed to his care was not lost by or through 
 his fault or negligence. (Worz v. U. S., 48 Ct. 
 Cls., 80, 93.) 
 
 46. Termination of pay. — Where a con- 
 tract officer (civilian captain of a naval collier) 
 abandoned his place of service without orders, 
 it is conclusive that such contract officer con- 
 sidered his contract with the Government at an 
 end, and he is entitled to no further remunera- 
 tion from the Government. (Gove v. U. S., 
 49 Ct. Cls., 251.) 
 
 An appointed officer (paymaster's clerk) or- 
 dered, while abroad, to proceed to his home in 
 
 the United Statea, and that upon his arrival 
 home his appointment "is revoked," was en- 
 titled to compensation untU he arrived at his 
 home. (Calongne v. U. S., 49 Ct. Cls., 240, 
 citing Davis v. U. S., 47 Ct. Cls., 195; see also 
 Katzer v. U. S., 49 Ct. Cls., 294.) 
 
 An officer dismissed in time of peace with- 
 out sentence of comt-martial can not recover 
 pay thereafter if he acqmesces in the unlawful 
 dismissal for such a long period that he may be 
 held to have abandoned his office. (Ide v. U. 
 S., 25 Ct. Cls., 401; 29 Ct. Cls.. 558; Newton v. 
 U. S.,18Ct. Cls.,435.) 
 
 The discharge of an officer does not take 
 effect, 80 as to relieve the Government from its 
 obligations, until he is notified of the fact and 
 actually discharged from the service. (Gould 
 V. U. S., 19 Ct. Cls., 593.) 
 
 An officer who continues in the performance 
 of his duty after tendering his resignation ia 
 entitled to pay up to the time that he is notified 
 of the acceptance of his resignation. (Barger v. 
 U. S., 6Ct. Cls., 35.) 
 
 47. Pay computed on monthly basis. — 
 Annual compensation of any person in the 
 service of the United States shall be divided 
 into 12 equal installments, one of which shall 
 be the pay for each calendar month; one- 
 thirtieth of one installment shall be the daily 
 rate of pay, in making payments for a fractional 
 part of a month; the 31st of any calendar month 
 shall be excluded from computation, and Feb- 
 ruary shall be treated as having 30 days. Per- 
 sons entering the service in a 31-day month 
 shall be entitled to pay from date of entry to 
 the 30th of said month, and persons entering in 
 February shall be entitled to one month's pay 
 less as many thirtieths as days elapsed prior to 
 entry. For unauthorized absence on the 31st 
 of any month, one day's pay shall be forfeited. 
 (Aet June 30, 1906, sec. 6, 34 Stat., 763.) 
 
 The Re\dsed Statutes, section 1556, provided 
 that the officers and men of the Navy "shall be 
 entitled to receive annual pay at the rates 
 herein stated " ; but the officers of the Army and 
 Navy have never been paid annually, and in 
 the case of death, resignation, or dismissal, pay 
 runs to the date when the officer leaves the 
 service; therefore, the statute of limitations ex- 
 cludes pay anterior to a period of six years 
 prior to the bringing of suit therefor. (Brook 
 V. U. S., 31 Ct. Cls.,''272.) 
 
 Sec. 1557. [Furlough pay.] Officers on furlough shall receive only one- 
 half of the pay to which they would have been entitled if on leave of absence. — 
 (3 Mar., 1835, c. 27, s. 1, v. 4, p. 756. 3 Mar., 1845, c. 77, s. 6, v. 5, p. 794. 1 
 June, 1860, c. 67, s. 4, v. 12, p. 27.) 
 
 Navy" considerably below that required for 
 the pay of officers on active duty, this action 
 being based upon the express grounds "that by 
 a very rigid enforcement of a somewhat disused 
 power on the part of the Secretary of the Navy 
 to furlough officers, instead of having them 
 under the heads of 'other duty' or 'waiting 
 orders,' a very considerable reduction could be 
 made," and that they therefore "give the 
 Secretary of the Navy the disagreeable duty of 
 putting officers upon furlough, when they can 
 
 As to leave of absence pay, see note to section 
 1556, Revised Statutes, imder "Absence 
 from duty." 
 
 This section has not been repealed by 
 subsequent enactments. (15 Comp. Dec, 73. 
 See also notes to sections 1454, 1593, and 1594, 
 Revased Statutes.) 
 
 Officers furloughed as measure of 
 economy. — In the a])propriations for the naval 
 service for the fiscal year ending June 30, 1877, 
 Congress reduced the amount for "Pay of the 
 
 826 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1558. 
 
 be spared from the actual needs of the service." 
 Under these circumstances, the Secretary of 
 the Navy felt bound to reduce the number of 
 officers employed to that absolutely needed to 
 meet the requirements of the ser\'ice, and to 
 put those unemploved upon furlough pay. 
 (Navy Dept. Gen. Order No. 216, Aug. 12, 1876, 
 citing Cong. Rec, June 30, 1876, p. 16.) 
 
 The Secretary of the Navy found it a dis- 
 agreeable duty to be obliged to put so many 
 well-deserving officers in a position which had 
 been reserved of late years solely for the useless 
 
 and undeserving, but had no other alternative 
 except that of refusing to carry out the ex- 
 pressed will of the representatives of the people. 
 In placing these officers on furlough, the Secre- 
 tary stated that it would be understood that his 
 action "neither imputes any -wTong to, nor in- 
 volves the disgrace of, any such officer; but 
 that it is simply an effort to meet, as nearly as 
 may be, the reciuirements of public law, bind- 
 ing alike upon the department and the service." 
 (Navy Dept. Gen. Order No. 216, Aug. 12, 
 1876.) 
 
 Sec. 1558. [Allowances.] The pay prescribed in the two preceding sections 
 shall be the full and entire compensation of the several officers therein named, 
 and no additional allowance shall be made in favor of any of said officers on 
 any account whatever, except as hereinafter provided. — (15 July, 1870, c. 295, 
 s. 4, V. 16, p. 332.) 
 
 Allowances for officers of the Army, except 
 forage, are made applicable to all com- 
 missioned officers of the Navy by act of 
 March 3, 1899, section 13 (30 Stat., 1007), as 
 amended by acts of May 13, 1908 (31 Stat., 
 128), and August 29, 1916 (39 Stat., 581), 
 noted under section 1487, Revised Statutes. 
 Chief of Naval Operations shall receive the al- 
 lowances prescribed by or in pursuance of 
 law for the gi-ade of general in the Army. 
 (Act July 1, 1918, 40 Stat., 716.) 
 Chiefs of bm-eaus and the Judge Advocate 
 General of the Navy shall receive the same 
 allowances as prescribed by or in pursuance 
 of law for chiefs of bureaus of the War De- 
 partment and the Judge Advocate General of 
 the Army. (Act July 1, 1918, 40 Stat., 717.) 
 Officers of the Navy holding the rank and title 
 of Admiral and Vice Admiral in the Navy, 
 while holding such rank and title, shall 
 receive the allowances of a General and 
 Lieutenant General of the Army, respec- 
 tively. (Act July 1, 1918, 40 Stat., 717.) 
 See note to section 1556, Revised Statutes, as to 
 pay and allowances of warrant officers, 
 commissioned warrant officers, Naval Re- 
 serve Force, Nurse Corps (Female), etc. 
 See note to section 1487, Revised Statutes, as to 
 quarters, heat, and light, and as to allow- 
 ances in general. 
 See notes to sections 1578 and 1579, Revised 
 
 Statutes, as to rations of officers. 
 Transportation of household effects: See act of 
 
 May 18, 1920, section 12 (41 Stat., 604). 
 Warrant officers and mates "shall hereafter re- 
 ceive the same commutation for quarters as 
 second lieutenants of the Marine Corps " (act 
 Mar. 3, 1901, 31 Stat., 1107); and "shall re- 
 ceive the same allowances of heat and light 
 as are now or may hereafter be allowed an 
 ensign. United States Navy." (Act Aug. 
 29, 1916, 39 Stat., 578.) As to rations of 
 warrant officers and mates, see notes to 
 sections 1578 and 1579, Revised Statutes. 
 Historical note. — By act of March 3, 1835 
 (4 Stat., 757), it was provided that "the yearly 
 allowance provided in this act is all the pay, 
 compensation, and allowance which shall be 
 received under any circiunstances whatever 
 by any such officer," etc. Before said act it 
 was lawful for the Secretary of the Navy to 
 
 make allowances out of appropriations in gross 
 to officers of the Navy, beyond their regular 
 pay, for quarters, furnitm-e, light, fuel, and so 
 forth. By act of April 17, 1866 (14 Stat., 33), 
 said act of March 3, 1835, was repealed. The 
 effect of said repeal was to restore the right to 
 make such allowances, as the act of February 
 25, 1871, now embodied in section 12 of the Re- 
 vised Statutes, was not then in force. (U. S. v. 
 Philbrick, 120 U. S., 52.) 
 
 Provision as to allowances which are fixed for 
 naval officers in the naval personnel act of 
 March 3, 1899, section 13 (30 Stat., 100/), noted 
 above, superseded the statutory pro\asions as to 
 the same allowances which were contained in 
 earUer statutes. (Gibson v. U. S., 194 U. S., 
 182.) 
 
 The pro\-iso in the naval personnel act de- 
 claring that "no provision of this act shall 
 operate to reduce the present pay of any com- 
 missioned officer," and the act of June 7, 1900 
 (31 Stat., 684, 697), that nothing contained in 
 the personnel act shall operate to reduce the 
 pay which, but for the passage of said act, 
 would have been received by any commis- 
 sioned officer at its passage or thereafter, do not 
 extend to allowances. "(Thomas v. U. S., 38 
 Ct. Cls., 113.) 
 
 Allowances provided by law for officers of the 
 Army are applicable to officers of the Navy by 
 reason of section 13 of the Navy personnel act 
 approved March 3, 1899 (30 Stat., 1007), and the 
 acts of May 13, 1908 (35 Stat., 127, 128), and 
 August 29, 1916 (39 Stat., 581). (24 Comp. 
 Dec, 610, citing 15 Comp. Dec, 809; 66 MS. 
 Comp. Dec, 663, Aug. 14, 1913; 27 Op. Atty. 
 Gen., 261; Op. J. A. G. Navy, Apr. 13, 1918.) 
 
 Allowances, pay, emoluments, etc., 
 defined and distinguished.— See note to sec- 
 tion 1556, Revised Statutes, under "longe\-ity 
 pay," for definition of current yearly pay and 
 yearly pay of the grade; and note to section 
 1487, Revised Statutes. 
 
 Under the term "allowances" everything is 
 embraced which would be recovered from the 
 Government by the soldier in consideration of 
 his enlistment and services, except the stipu- 
 lated monthlv compensation designated as pay. 
 Therefore, the term allowances includes the 
 bountv allowed to a soldier upon his honorable 
 discharge at the expiration of his service. (U. 
 
 54641°— 22- 
 
 53 
 
 827 
 
Sec. 1558. 
 
 Ft. 2. REVISED STATUTES. 
 
 The Navy. 
 
 S. V. Landers, 92 U. S., 77, 80, citing 13 Op. 
 Atty. Gen., 198, 199.) 
 
 "Mounted pay" is not an allowance, but 
 
 Eay proper; the olKcer to whom it is assigned 
 y statue receives it, whether he is actually 
 mounted or not; where a surgeon in the Army 
 is entitled to it, a surgeon in the Navy re- 
 ceiving Army pay and allowances under 
 the Navy personnel act of March 3, 1899, 
 is also entitled to it. (Richardson v. U. S., 
 38 Ct. 01s., 182.) 
 
 By reference to the statutes it appears 
 that the words "pay and allowances" may 
 be understood in a general sense as including 
 all emoluments paid or allowed to a soldier. 
 (13 Op. Atty. Gen., 199.) 
 
 A general order of the Navy Department 
 allowing officers, in lieu of all allowances, 
 except niileage or traveling expenses, a sum 
 equal to 33 J per cent of their "pay," is to be 
 construed as requiring that said percentage 
 be based upon the amount of the officer's 
 stated statutory pay at the time said order 
 was in force, \\'ithout taking into considera- 
 tion the additional amount allowed the officer 
 as lonsjcn-itv pay under the act of March 3, 
 1883 (22 Stat., 473). (U. S. v. Allen, 123 
 U. S., 345.) 
 
 Under a statute providing that officers serv- 
 ing as chiefs of bureaus shall have certain 
 "rank, title, and emoluments," the word 
 "emoluments" includes salary, pay, and 
 every kind of pecuniary compensation for 
 service rendered. (28 Op. Atty. Gen., 429, 
 citing Hoyt v. U. S., 10 How., 108, 135.) 
 
 The basis of increased pay for shore duty 
 beyond seas is the officer's "pay proper as 
 fixed by law in time of peace." The term 
 "pay proper" is not to be construed differently 
 from the term "pay," which includes the 
 increase granted for longevity service. The 
 total amount is the "pay proper" upon which 
 the percentage is to be computed. (McCuUy 
 V. U. S., 42 Ct. Cls., 275.) 
 
 Under the act of May 2G, 1900, increasing 
 the pay of officers 10 per cent and of enlisted 
 men 20 per cent "above the rates of pay proper 
 as fixed by law in times of peace" (for shore 
 duty beyond seas), "pay proper" means the 
 fixed amount given by law to officers as dis- 
 tinguished from pay and emoluments or pay 
 and allowances. The increase of an officer's 
 pav is to be computed on his longevity pay, 
 if any. {IrwAn v. U. S., 38 Ct. Cls., 87.) 
 
 The words "pav proper" as used in the 
 acts of May 26, 1900 (31 Stat., 205, 211), and 
 March 2, 1901 (31 Stat., 895, 903), allowing 
 additional pay to officers and enlisted men 
 of the Army servdng beyond the limits of the 
 States comprising the Union and the terri- 
 tories contiguous thereto, include increase 
 for longe\aty pay. The total of the minimum 
 pay of the office prescribed by statute and 
 the increased pay for length of service should 
 be taken as the basis of the computation for 
 the increase under the acts cited. (U. S. 
 V. Mills, 197 U. S., 223.) 
 
 "Pay proper" means the regular, ordinary 
 pay which an officer may be entitled to under 
 the facts in his case, and if by \drtue of length 
 of ser\-ice he is entitled to receive the addi- 
 tional compensation provided therefor, that 
 
 compensation is his "pay" or his "pay proper" 
 as distinguished from possible other compensa- 
 tion by way of allowances, or commutation, or 
 otherwise. (U. S. v. Mills, 197 U. S., 223.) 
 
 The words "pay proper" are not to be con- 
 strued differently from the word "pay." The 
 term means compensation which may properly 
 be described or designated as "pay' as distin- 
 guished from allowances, commutation for 
 rations, or other methods of compensation 
 not specifically described as pay. (U. S. 
 V. Mills, 197 U. S., 223.) 
 
 The words "all back pay and emoluments," 
 in a special act of Congress (granting the 
 compensation to which an officer wf)uld have 
 been entitled had he remained in the Army 
 for a period that he was out after an enforced 
 resignation until his reinstatement), are all 
 comprehensive; they embrace all the com- 
 pensation, perquisites, and dues to which 
 the beneficiary was entitled as an officer. 
 The word "all" excludes the idea of limita- 
 tion, and the word "emoluments" is the 
 most adequate that could have been used. 
 It especially expresses the perquisites of an 
 office, and its use in connection with the 
 word "pay" makes the restitution of the 
 statute complete. (McLean v. U. S., 226 
 U. S., 374.) 
 
 The word "pay" does not include allow- 
 ances. (Thomas v. U. S., 38 Ct. Cls., 113.) 
 
 Wliere an officer is sentenced by court- 
 martial to suspension from rank and duty for 
 12 years, and to forefeit one-half his monthly 
 pay every month for the same period, he is 
 not entitled to recover allowances. (Swaim 
 V. U. S., 28 Ct. Cls., 173, 237; affirmed, 165 
 U. S., 553.) 
 
 The word "pay" in the laws providing for 
 the pay and allowances of officers and en- 
 listed men of the Army has a distinct and 
 technical signification, and when used alone 
 in the sentence of a court-martial does not 
 affect the right to of the accused to his pecuni- 
 ary allowances. (2 Comp. Dec, 300.) 
 
 A midshipman suspended from the Naval 
 Academy for one year "^\'ithout pay" is not 
 entitled to allowances during the period of 
 his suspension. (Comp. Dec, Nov. 13, 1915, 
 177 S. and A. Memo., 3830, citing 17 Comp. 
 Dec, 834; 11 Comp. Dec, 560; 13 Comp. Dec, 
 626.) 
 
 See also United States v. Jones (18 How., 92), 
 noted under section 1586, Revised Statutes. 
 
 Maintenances, attaches. — The money ap- 
 propriated by Congress for ''maintenance of 
 students and attaches and information from 
 abroad" is in the nature of a contingent fund, 
 to be disbursed by the Secretary of the Navy in 
 his discretion. The only question that can 
 arise is how much did the Secretary intend to 
 allow to an officer. Neither can the form of 
 the Secretary's allowance be a matter of judi- 
 cial review, nor the time when the mainte- 
 nance was to begin. Accordingly, held, that 
 where a naval officer was ordered by the Secre- 
 tary of the Navy to report for duty to our minis- 
 ter to Spain, and to accompany him to Madrid, 
 and it was further ordered by the Secretary 
 that the officer be allowed $285 per month for 
 "maintenance, " to begin at the time he reports 
 for duty, and that such allowance be "addi- 
 
 828 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1560. 
 
 tional to the ordinary traveling and other ex- 
 penses that may be allowed, " the accounting 
 officers Avere in error in refusing to allow the 
 maintenance prior to the time said officer 
 arrived in Madrid. (Dyer v. U. S., 37 Ct. Cls., 
 337, citing U. S. v. Jones, 18 How., 92, noted 
 under section 1586, R. S.; see also note to sec. 
 285, R. S.) 
 
 Medical expenses of ofl&cers. — See note to 
 section 1586, Revised Statutes. 
 
 Servants. — The Navy Regulations which 
 allow the detail of enlisted men to prepare and 
 serve food for officers' messes extend only to 
 messes on board ship; officers' messes on shore 
 are A-oluntary, and there is no law or regulation 
 which recognizes them. Where enlisted men 
 on shipboard were detailed to serve an officer's 
 mess on shore, and were subsisted by the mess, 
 and their rations were commuted and paid to 
 the mess, the accounting officers could dis- 
 allow the payment and compel the officers to 
 refund the monev. (Williams v. U. S., 44 Ct. 
 Cls., 175.) 
 
 The act of July 1, 1902 (32 Stat., 662, 680), 
 authorizing the payment of money accruing 
 from the rations of enlisted men "commuted 
 for the benefit of any mess, " does not extend to 
 an officer's mess on shore. (Williams v. U. S., 
 44 Ct. Cls., 175.) 
 
 Section 1232, Revised Statutes, pro\'iding 
 that ' ' no officer shall use an enlisted man as a 
 servant in any case whatever, " which related 
 to officers of the Army, is ecjually applicable 
 to officers of the Navy, at least on shore; the 
 Navy Regulations respecting enlisted men in 
 the Marine Corps are equally as explicit, so 
 that, whatever authority there may be for the 
 enlistment of messmen of the servant class on 
 board ship can ha\-e no application to a private 
 mess formed by officers on shore. (Williams v. 
 U. S., 44 Ct. Cls., 175.) 
 
 See also 12 Comp. Dec, 697, noted under 
 section 1487, Re\'ised Statutes, "Services of 
 laborer in caring for quarters, " and see 6 Comp. 
 Dec, 756. 
 
 defined and distin- 
 to section 1556, Re- 
 
 to persons in the 
 
 Mileage, traveling expenses, and trans- 
 portation of dependents. — See note to sec- 
 tion 1566, Revised Statutes. 
 
 Allow^ances of ofl&cer under suspen- 
 sion. — See note above, under "Allowances, 
 pay, emolmnents, etc., 
 guished"; see also note 
 \'ised Statutes. 
 
 Sale of stores, etc. 
 Navy. — Sale of naval stores to persons in the 
 Navy and Marine Corps, and civilian em- 
 ployees at certain naval stations is authorized 
 bv act of March 3, 1909 (35 Stat., 768), act of 
 June 24, 1910 (36 Stat., 619), and act of March 
 4, 1913 (37 Stat., 909). Sale of Navy and Ma- 
 rine Corps subsistence stores to officers and en- 
 listed men of the Army is authorized by act of 
 August 29, 1916 (39 Stat., 630), which also 
 authorizes officers and enlisted men of the Navy 
 and Marine Corps to purchase subsistence sup- 
 plies from the Army. (See also sec. 1135, R. S., 
 and note thereto.) 
 
 The Secretary of the Navy is not authorized, 
 in the absence of a provision of law therefor, to 
 purchase for sale to officers and enlisted men of 
 the Navy articles not included in the regular 
 naval stores. (6 Comp. Dec, 321; see also note 
 to sec. 1414, R. S.) 
 
 Uniforms, accoutrements, and equipment 
 shall be sold at cost to officers of the Navy, 
 Marine Corps, midshipmen, cadets at the Coast 
 Guard Academy, and officers of the Coast Guard 
 while operating ^vith the Navy, subject to such 
 restrictions and regulations as the Secretary of 
 the Navv mav prescribe. (Act Jan. 12, 1919, 
 40 Stat.,' 10540 _ 
 
 Honorably discharged officers and enlisted 
 men of the Army, Navy, and Marine Corps 
 recei^^ng medical treatment from the Public 
 Health SerA-ice shall be permitted to purchase 
 subsistenc'e stores from the Armv, Navy, and 
 Marine Corps. (Act June 5, 1920, 41 Stat.^ 
 976.) 
 
 Sec. 1559. [Volunteer service.] When a volunteer naval service is author- 
 ized by law, the officers therein shall be entitled to receive the same pay as offi- 
 cers of the same grades, respectively, in the Regular Navy. — (16 July, 1862, c. 
 183, s. 20, V. 12, p. 587.) 
 
 Naval Resei'\'e Force, pay and allowances: See 
 
 note to section 1556, Revised Statutes. 
 Pay, defined: See note to section 1558, Revised 
 
 Statutes. 
 
 Transfer of officers from the volunteer 8er^'ice to 
 the Regular Na\y : See note to section 1412, 
 Revised Statutes. 
 
 Sec. 1560. [Commencement of pay ; original entry.] The pay of an officer 
 of the Navy, upon his original entry into the service, except where he is required 
 to give an official bond, shall commence upon the date of his acceptance of his 
 appointment; but where he is required to give such bond his pay shall com- 
 mence upon the date of the approval of his bond by the proper authority. — 
 (15 July, 1870, c. 295, s. 7, v. 16, p. 333.) 
 
 As to commencement of pay in the cases of to same section, under "I. WTio are re- 
 officers of the Navy required to give bonds, quired to give bonds." 
 see note to section 1383, Revised Statutes, As to pay of midshipmen commissioned witliin 
 under "II. Necessitv of furnishing bond six months after graduation, see act of 
 before entering upon duty"; see also note March 3, 1893 (27 Stat., 715), which allows 
 
 829 
 
Sec. 1561. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 the pay of the j^jado in which commissioned 
 from the date of rank stated in the com- 
 mission to the date of qualification and 
 acceptance of commission; and act of May 
 22, 1917, section 5 (10 Stat., 86), reenacted 
 byact of July 1, 1918 (40 Stat., 716), 
 ■which proNides that midshipmen thereafter 
 graduating "may be commissioned effec- 
 tive from date of graduation." 
 Appointment of officer to liigher office 
 in another branch of the service. — It has 
 been the rule of the accounting officers to hold 
 that the appointment of an officer in one branch 
 of the service to another office in another 
 branch is an "original entry into the service" 
 ■within the meaning of section 1560, Revised 
 Statutes. (Comp. Dec, May 31, 1907, 76 S. 
 and A. Memo., 372.) 
 
 For other cases, see note to section 1458, 
 Revised Statutes, under " Promotion ' and 'ap- 
 pointment' compared." See also note to sec- 
 tion 1556, Revised Statutes, under "Longevity 
 pav," citing United States v. Alger (151 U. S., 
 362, 152 U. S., 384), United States i;. Stahl (151 
 U. S., 366), Barber v. United States (50 Ct. Cls., 
 250), United States v. U. S. Fidelity and 
 Guarantv Co. (244 Fed. Rep., 310), Stirling v. 
 United States (48 Ct. Cls., 386), -which cases 
 hold that the reappointment of an officer, 
 whether under the general law or special act of 
 Congress, is not an original entry into the serv- 
 ice, for purposes of longevity pay, where the 
 officer had not left the ser\ice with the bona fide 
 intention of not returning, but his services 
 under the two appointments had in effect been 
 continuous. See also notes to sections 1561 
 and 1562, Re-vised Statutes. 
 
 Reappointment under special act of Con- 
 gress. — A former officer of the Navy reap- 
 pointed b}^ authority of a special act of Con- 
 gress, pro-viding that such reappointment shall 
 be made "as of" a prior specified date, would, 
 if the actstop])ed there, be entitled to back pay 
 from such prior date; but where the act con- 
 tained a pro-viso "that he shall receive no pay 
 or emoluments except from the date of such 
 reappointment," its effect was to forbid the 
 allowance of pay or emoluments prior to the 
 date of such reappointment, which must be 
 regarded as the date when such reappointment 
 was actually made under the act, and not the 
 retroactive date as of which such reappointment 
 was made, and which served merely to fix his 
 rank and precedence. Further held, that this 
 legislation, being remedial in its character, 
 should be construed as ratifying payments 
 which had been made to the officer prior to the 
 passage of the act and which the Government 
 in a counterclaim had sought to recover back. 
 (Quackenbush v. U. S., 177 U. S., 20.) 
 
 See also Stirling v. United States (48 Ct. Cls., 
 386), noted under section 1556, Revised Stat- 
 utes, " Longevity pay." 
 
 Appointment of officer to higher office 
 in a ne-w corps. — The act of March 3, 1915 
 (38 Stat., 942), created in the Na-vy the grades 
 
 of acting pay clerk, pay clerk, and chief pay 
 clerk, and rendered eligible for commissions as 
 chief pay clerks, paymasters' clerks then in the 
 Navy and former paymasters' clerks whose ap- 
 pointments had been revoked prior to the act 
 and who had not less than six years' actual 
 service as such. The said act also changed the 
 titles of paymasters' clerks to "pay clerk." 
 Held, that a pajonaster's clerk whose title was 
 changed to pay clerk by the act, and who was 
 commissioned in accordance with, said act as a 
 chief pay clerk, was not "advanced in grade or 
 rank pursuant to law " -nithin the meaning of 
 the act of March 4, 1913 (noted under sec. 1562, 
 R. S.); that the said act of March 3, 1915, 
 created a new corps in the Navy; and that pay- 
 masters' clerks then in the ser-vice, not-with- 
 standing their change of title, were not members 
 of said new corps any more than those whose 
 appointments had theretofore been revoked; 
 that the appointment of the officer in this case 
 as a chief pay clerk was no more an advance- 
 ment in grade or rank than the appointment of 
 a former paymaster's clerk \xiih the requisite 
 qualifications would have been an advance- 
 ment in grade or rank; that in either case the 
 appointment would have been that of one out- 
 side of the newly created corps, and of one who 
 had no grade or rank as a warrant or commis- 
 sioned officer; accordingly, the officer in this 
 case, ha-ving been commissioned as a chief pay 
 clerk on August 3, 1915, pursuant to the act of 
 March 3, 1915, was not entitled to pay as chief 
 pay clerk from the date of rank stated in his 
 commission, which was July 1, 1915. (Seifert 
 V. U. S., 52 Ct. Cls., 40.} 
 
 Promotion of enlisted man. — The ap- 
 pointment of an enlisted man to the position of 
 pharmacist in the Navy is not a promotion 'in 
 course," -within the meaning of section 1561, 
 Re-vised Statutes, and the appointee is not en- 
 titled to the pay of the higher grade from the 
 date he is to take rank, as pro-vided therein, 
 but from the date of his acceptance of the office. 
 (5 Comp. Dec, 141.) 
 
 An officer's original entry into the ser-vice, 
 within the meaning of section 1560, Revised 
 Statutes, has reference to his entry into the 
 service as an officer and not as an enlisted man, 
 and when an officer is appointed from among 
 the enlisted men of the Navy his pay as an 
 officer begins as pro-vided in said section. 
 (5 Comp. Dec, 141.) 
 
 Midshipman commissioned as an offi- 
 cer. — The appointment of a midshipman to the 
 position of assistant ci^il engineer in the Navy, 
 when not made until over six months from the 
 date of his graduation, is "an original entry 
 into the ser-vice " %\ithin the meaning of section 
 1560, Revised Statutes, rather than a "promo- 
 tion in course to fill a vacancy in the next 
 higher grade," -within the meaning of the act 
 of June 22, 1874 (noted under section 1561, 
 R. S.). (13 Comp. Dec, 606; but see act of 
 July 1, 1918, noted above.) 
 
 Sec. 1561. [Commencement of pay of promoted officers. Superseded.] 
 
 This section pro-vided as follo-ws: 
 "Sec. 1561. When an officer is promoted in 
 coirrse to fill a vacancy, and is in the perform- 
 
 ance of the duties of the. higher grade from the 
 date he is to take rank, he may be allowed the 
 increased pay from such date." — (15 July, 1870, 
 
 830 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1561. 
 
 c. 295, s. 7, V. 16, p. 333 
 ). 226.) 
 
 5 June, 1872, c. 306, 
 8. 1, V. 17, p. ' 
 
 It was superseded by the following clause 
 contained in the act of June 22, 1874 (18 Stat., 
 191): 
 
 "On and after the passage of this act, any 
 officer of the Navy who may be promoted in 
 course to fill a vacancy in the next higher grade 
 shall be entitled to the pay of the grade to 
 which promoted from the date he takes rank 
 therein, if it be subsequent to the vacancy he 
 is appointed to fill." 
 
 By act of March 4, 1913 (37 Stat., 892), it 
 was pro\-ided that "all officers of the Na\^ 
 who, since the third day of March, eighteen 
 himdi'ed and ninety-nine, have been ad- 
 vanced or may hereafter be advanced in grade or 
 rank pursuant to law shall be allowed the pay 
 and allowances of the higher grade or rank 
 from the dates stated in their commissions." 
 
 Historical note. — The pro^ision of the act 
 of July 15, 1870, section 7, chapter 295 (16 Stat., 
 333), "that "the increased pay of a promoted 
 officer shall commence from the date he is to 
 take rank as stated in his commission," was 
 repealed by the act of June 5, 1872, chapter 306 
 (17 Stat., 226). The pertinent pro\'ision of the 
 latter act is substantially reenacted in section 
 1561, Ile\'ised Statutes. (17 Op. Atty. Gen., 
 495.) 
 
 By the settled practice of the service, promo- 
 tion to a higher gi-ade includes the right to the 
 rank of that grade from the date of the vacancy 
 filled by the promotion. This practice has the 
 distinct recognition of Congress. Before the 
 legislation referred to, several of the Attorneys 
 General had decided that it was competent for 
 the appointing power to give rank by relation 
 in making promotions. (18 Op. Atty. Gen., 
 393.) 
 
 Prior to the act of July 15, 1870, chapter 295, 
 the general rule was that the increased pay of 
 all promoted officers in the Navy commenced 
 from the date of the signature of an appoint- 
 ment to perform the duty of the higher grade if 
 an appointment was given before the issue of a 
 commission; or from the date of the commission 
 if no appointment was previously given. This 
 rule was changed by the said act, which pro- 
 vided that "the increased pay of a promoted 
 officer shall commence from the date he is to 
 take rank as stated in his commission." The 
 pro\'ision of that act, which was general and 
 applied to any promoted officer, was repealed 
 by the act of June 5, 1872, chapter 306. By the 
 latter act only those officers who are "pro- 
 moted in course to fill a vacancy" and have 
 been in the performance of the duties of the 
 higher grade from their ranking date become 
 entitled to the increased pay from that date. 
 Officers otherwise promoted are impliedly ex- 
 cluded; with them it must be deemed that 
 their increased pay was contemplated to com- 
 mence at the date of appointment. The pro- 
 vision of the act of 1872, is substantially em- 
 bodied in section 1561, Revised Statutes. (17 
 Op. Atty. Gen., 319. But see sec. 1562, R, S., 
 and note thereto.) 
 
 The act of June 22, 1874, chapter 392, super- 
 sedes section 1561, Re^dsed Statutes, as to 
 officers promoted thereafter. (17 Op. Atty. 
 Gen., 329.) 
 
 The sole purpose and intent of the first sec- 
 tion of the act of June 22, 1874, was to modify 
 the rule prescribed by section 1561, fixing the 
 period at which the increased pay of an officer 
 on the active list who is "promoted in course 
 to fill a vacancy," shall begin. It in no way 
 affected section 1591, which thereafter, as 
 before, remained in full force. (17 Op. Atty. 
 Gen., 495.) 
 
 The language of the act of June 22, 1874 (18 
 Stat., 191), is too plain to require construction. 
 The only question presented is whether there 
 was a vacancy in the office on the date from 
 which the officer took rank therein on promo- 
 tion. (WnUams V. U. S., 47 Ct. Cls., 316, 319.) 
 
 The first section of the act of June 22, 1874, 
 chapter 392, is in pari materia with the provi- 
 sion touching the pay of promoted officers con- 
 tained in section 7 of the act of July 15, 1870, 
 chapter 295, and the act of June 5, 1872, chap- 
 ter 296, and section 1561, Re\T.sed Statutes, and 
 must be considered in connection therewith to 
 determine its scope. (17 Op. Atty. Gen., 495.) 
 
 The act of June 22, 1874 (18 Stat., 191), su- 
 perseded section 1561, Revised Statutes, on the 
 same subject. (7 Comp. Dec, 865, 867; 13 
 Comp. Dec, 606, 608; but see 5 Comp, Dec, 
 141, 142.) 
 
 The President for other purposes may insert 
 an antecedent date in the body of a commission; 
 but antecedent date can affect an officer's pay 
 only in the cases authorized by statute. 
 (Young V. U. S., 19 Ct. Cls., 145.) 
 
 As a general principle, it has been repeatedly 
 decided by the Attorneys General that con- 
 structive rank retroactively assigned to an 
 officer does not draw after it retroactive pay. 
 Even though a statute expressly pro\-ide that 
 rank shall be dated back, the pay is not thereby 
 dated back in the absence of a provision in the 
 statute to that effect. (6 Op. Atty. Gen., 68. 
 But see Quackenbush v. U. S., 177 U. S., 20, 
 noted under sec. 1560, R. S.) 
 
 The President, by and with the advice and 
 consent of the Senate, has authority to confer 
 brevet rank in the Army from a period antece- 
 dent to the actual appointment and commission; 
 if the words in the commission, "to take rank 
 from" a specified date confer on the officer rank 
 from that time, then they confer on him also 
 the pay and emoluments of that rank, when he 
 is on duty and has a command according to that 
 rank from and after that time. It seems that 
 pay and emoluments are necessarily attached to 
 the rank, and that if the rank existed from the 
 date stated in the commission, and the duty 
 and command existed, then the pay and emolu- 
 ments followed of course. (U. S. v. Vinton, 2 
 Sumn., 299, 28 Fed. Cas. No. 16, 624.) _ 
 
 There is no pro\ision of law authorizing pay- 
 ment to an officer of the Army of the pay of the 
 higher grade from the date on which the vacancy 
 occurred which he is promoted to fill; but by 
 immemorial custom and practice the pay is 
 allowed from the date of the vacancy, an the 
 same manner that officers of the Navy are 
 authorized to be paid. Accordingly, officers 
 of the Revenue Cutter Sersdce (now Coast 
 Guard), who were given by law the same pay 
 as the Army, are likewise entitled to pay on 
 promotion from date of vacancy. (9 Comp. 
 Dec, 1.) 
 
 831 
 
Sec. 1562. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 By special legislation the right to compensa- 
 tion may be so conferred as to give an officer the 
 same right thereto that he avouUI have had had 
 he been appointed at a prior date. The act of 
 June 22, 1874 (18 Stat., 191), is an instance of 
 this kind. Similar proAdsions were made in 
 prior acts; namelv, section 16, act of July 16, 
 1862 (12 Stat., 586); section 5, act of July 15, 
 1870(16 Stat., 333); and section 1, act of June 5, 
 1872 ( 17 Stat., 226). (9 Comp. Dec, 1, 2.) 
 
 Officers advanced for heroism. — Revised 
 Statutes, sections 1561 and 1562, provide for 
 certain cases where the pay of an officer shall 
 run from a date anterior to the date of his com- 
 mission — which is the date when the instru- 
 ment was executed — but advancement in rank 
 "for eminent or conspicuous conduct in battle 
 or extraordinary heroism' ' under section 1506, 
 Revised Statutes, is not one of such cases. 
 (Young V. U. S., 19 Ct. Cls., 145; see also 17 Op. 
 Atty. Gen., 319, in same case.) 
 
 Cadet engfineers. — The words "any officer 
 of the Navy' ' as employed in the first section 
 of the act of June 22, 1874, chapter 392, com- 
 prehend cadet engineers, and that section fixes 
 the commencement of their pay in the grade of 
 assistant engineer when promoted thereto. (17 
 Op. Atty. Gen., 329. See note to sec. 1522, 
 R. S., as to cadet engineers.) 
 
 Retired officers.— The act of June 22, 1874, 
 chapter 392, was manifestly designed to fix the 
 commencement of the increased pay of pro- 
 moted officers in active service onlv. (17 Op. 
 Atty. Gen., 495.) 
 
 Officer retired after nomination for pro- 
 motion. — An officer who ciualified and was 
 nominated by the President for promotion to 
 the grade of rear admiral, to fill a vacancy oc- 
 curring February 18, 1886, but who was retired 
 on account of age prior to his confirmation by 
 the Senate, may, if subsequently confirmed, 
 be commissioned as a rear admiral with rank 
 from the date of said vacancy and with the 
 retired pay of that grade. (18 Op. Atty. Gen., 
 393; compare note to sec. 1-588, R. S.) 
 
 "Vacancy" defined. — An office which has 
 just been created and has never been filled is 
 "vacant" within the meaning of the act of 
 June 22, 1874 (18 Stat., 191), wliich pro\ddes 
 that "any officer of the Navy who may be pro- 
 moted in course to fill a vacancy," etc. An 
 office created by law and never filled constitutes 
 a vacancy. (Williams v. U. S., 47 Ct. Cls., 
 316.) 
 
 "WTiere a statute enacts that there shall be 26 
 additional passed assistant and assistant pay- 
 masters on the active list of the Navy, the 
 President, in his discretion, mav direct that 
 
 this whole number so added to the active list 
 shall be of the grade of passed assistant pay- 
 master. The President having directed that 
 the whole number be added to the higher grade 
 the effect of the law in conjunction ^\ith the 
 President's order was to create vacancies in 
 the grade of passed assistant paymaster, within 
 the meaning of the act of June 22, 1874. (Wil- 
 liams t'. U. S., 47 Ct. Cls., 316.) 
 
 Where the law authorizes additional offices in 
 the Navy and the President has discretion to 
 add the increase to the higher of two grades, 
 the vacancies are created by the law itself, and 
 not by the President's order; when the Presi- 
 dent issues his order, it relates back to the date 
 of the law authorizing the additional appoint- 
 ments. An officer promoted with date of rank 
 subsequent to the date of the law, but prior to 
 the date of the President's order, is entitled 
 to the increased pay of the higher grade from 
 the date of rank. (Crapo v. U. S., 50 Ct. Cls., 
 337, construing the act of March 4, 1913, above 
 quoted, and explaining Williams v. U. S., 47 
 Ct. Cls., 316.) 
 
 There is no reason in justice why an officer 
 who has completed the service necessary to 
 make him eligible to an office of higher grade, 
 which office is vacant by reason of the fact that 
 it has never been filled since it was created by 
 law, should not be entitled to the same consid- 
 eration as an officer who has become eligible to 
 an office made vacant by death or resignation. 
 (WilUams v. U. S., 47 Ct. Cls._, 316.) 
 
 For other cases, as to definition of "vacancy " 
 see note to section 1458, Revised Statutes. 
 
 Date of vacancy. — The advancement in 
 numbers and promotion by the President alone 
 of certain officers under section 1506, Re\'ised 
 Statutes, as amended by the act of June 17, 
 1878 (20 Stat., 144), did not create vacancies in 
 their offices, as such advancement and promo- 
 tion can be made only with the ad\ice and con- 
 sent of the Senate; accordingly, junior officers 
 nominated and commissioned to fill the vacan- 
 cies resulting from such advancement of their 
 seniors were not entitled, under the act of June 
 22, 1874 (18 Stat., 191), to pay in the higher 
 grades from the dates of rank stated in their 
 commissions, which were prior to the date that 
 the Senate confirmed the promotions of their 
 seniors and the date of such confirmation was the 
 date of the resulting vacancies. (23 Op. Atty. 
 Gen., 30 citing 6 Comp. Dec, 7.) 
 
 For other cases as to date of vacancies, see 
 note to section 1458, Re\dsed Statutes; see also 
 cases noted above under " ' Vacancy ' defined. " 
 
 Promotion of an enlisted man. — See note 
 to section 1560, ReAdsed Statutes. 
 
 Sec. 1562. [In cases of delayed examination.] If an officer of a class sub- 
 ject to examination before promotion shall be absent on duty, and by reason 
 of such absence, or of other cause not involving fault on his part, shall not be 
 examined at the time required by law or regulation, and shall afterward be 
 examined and found qualified, the increased rate of pay to which his promotion 
 would entitle him shall commence from the date when he would have been 
 entitled to it had he been examined and found qualified at the time so required 
 by law or regulation ; and this rule shall apply to any cases of this description 
 
 832 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1562. 
 
 which may have heretofore occurred. And in every such case the period of 
 service of the party, in the grade to which he was promoted, shall, in reference 
 to the rate of his pay, be considered to have commenced from the date when 
 he was so entitled to take rank. — (15 July, 1870, c. 295, s. 7, v. 16, p. 333.) 
 
 Whether section 1562 repealed by act 
 of 1913. — In so far as section 1562, Revised 
 Statutes, would restrict an officer's right to the 
 pay of a higher grade to the date that he became 
 entitled to examination for promotion, which 
 in the case of an officer who had been suspended 
 under section 1505, Revised Statutes, would be 
 one year from the date of the examination 
 upon which he had failed, the said section of 
 the Revised Statutes is absolutely inconsistent 
 with the act of March 4, 1913, allowing the pay 
 of the higher grade from the date stated in the 
 commission; and the later law must govern in 
 a case where the date stated in the commission 
 is prior to the date that the officer became 
 entitled to reexamination. (Smith v. U. S., 
 50 Ct. Cls., 244.) 
 
 The act of March 4, 1913, deals with the 
 question of pay, and the act of 1874 and section 
 1562, Revised Statutes, also deals with ques- 
 tions of pay. It is not necessary to determine 
 whether the last act supersedes the other two, 
 or merely extends similar benefits to other 
 officers not included within the provisions of 
 the former acts. It is sufficient to say that the 
 term "all officers of the Navy" as used in the 
 last act is comprehensive enough to include 
 passed assistant surgeons. (Toulon v. U. S., 51 
 Ct. Cls., 87, 97.) 
 
 Purpose of section 1562. — The evident 
 and sole purpose of the law is to prevent an 
 officer from being deprived by absence on duty 
 of the increased pay which promotion would 
 have given him. The meaning of the law is 
 that if an officer is delayed in his promotion 
 because he has not been examined, and his 
 examination has been delayed by his absence 
 on duty, he shall, when promoted, have the 
 increased pay of the new grade to begin from 
 the time when his examination should have 
 taken place. _ (Hunt v. U. S., 116 U. S., 394.) 
 
 The provisions of section 1562, taken from 
 the act of July 15, 1870 (16 Stat., 333), were 
 enacted to relieve officers, absent on duty 
 when the time arrived for their promotion and 
 examination, from the manifest injustice of 
 keeping them out of the pecuniary and other 
 benefits of promotion until such time as the 
 exigencies or convenience of the service ad- 
 mitted of their examination. The period of 
 delay is often long, and during the delay other 
 officers who entered the Navy at a later date 
 more fiavorably stationed, are examined and' 
 but for the provisions of section 1562 would 
 take rank above and receive higher pay than 
 their less fortunate fellow officers of longer serv- 
 ice. (Howell V. U. S., 25 Ct. Cls., 288, 292.) 
 
 The theory of the statute is that when the 
 officer became due for promotion he was com- 
 petent to perform the duties of the higher office, 
 was then entitled to examination, and, being 
 without fault, his examination was postponed; 
 but the benefits of the statute are f undamentally 
 based upon capacity and competency, and to 
 hold otherwise would be to declare that, with- 
 
 By act of June 22, 1874 (18 Stat., 191), it was 
 provided that ' ' on and after the passage of 
 this act, any officer of the Navy who may 
 be promoted in course to fill a vacancy in 
 the next higher grade shall be entitled to 
 the pay of the grade to which promoted 
 from the date he takes rank therein, if it be 
 subsequent to the vacancy he is appointed 
 to fill." 
 
 By act of March 4, 1913 (37 Stat., 892), it was 
 provided that "all officers of the Navy who, 
 since the third day of March, eighteen hun- 
 dred and ninety-nine, have been advanced 
 or may hereafter be advanced in grade or 
 rank pui'suant to law shall be allowed the 
 pay and allowances of the higher grade or 
 rank from the dates stated in their com- 
 missions." 
 
 See note to section 1495, Revised Statutes, as to 
 when examinations are required; and see 
 act of March 4, 1917 (39 Stat., 1171), em- 
 powering commanding officers on foreign 
 stations to convene examining boards when 
 authorized by the Secretary of the Navy. 
 
 Section 1562 not repealed by act of 
 1874. — There is no conflict between section 
 1562, Revised Statutes, which applies to officers 
 promoted after a prescribed period of service 
 without the necessity of any vacancy, and the 
 act of June 22, 1874, which applies to officers 
 promoted in course to fill vacancies. Accord- 
 ingly, an officer promoted to the grade of chief 
 boatswain after a specified period of service 
 and not to fill a vacancy — there being no va- 
 cancy for a chief boatswain other than that 
 created by his own service and examination as 
 boatswain — is entitled, under section 1562, Re- 
 vised Statutes, to the pay of chief boatswain 
 from the date he took rank as stated in his com- 
 mission, that being the date on which he was 
 entitled to examination for promotion. (Doyle 
 V. IT. S., 47 Ct. Cls., 356.) 
 
 The act of July 16, 1862, section 16 (12 Stat., 
 586), provided "that whenever any officer of 
 the Navy, of a class subject by law or regulation 
 to examination before promotion to a higher 
 grade, shall have been absent on duty at the 
 time when he should have been examined, and 
 shall have been found qualified at a subsequent 
 examination, the increased rate of pay to which 
 he may be entitled shall be allowed to him 
 from the date when he would have received it 
 had he been found qualified at the time when 
 his examination should have taken place." 
 Held, that any right an officer may have had to 
 claim back pay, under any construction of the 
 act of July 16, 1862, from a date prior to the 
 occurrence of the vacancy to which he was 
 promoted, was cut off by the act of June 22, 
 1874 (IS Stat., 191), which latter act authorizes 
 payment only from the time the promoted 
 officer takes rank in the higher grade and sub- 
 sequent to the date of the vacancy to which in 
 course he is promoted. (Adamson v. U. S., 19 
 Ct. Cls., 623, 628.) 
 
 833 
 
Sec. 1562. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 out the capacity to perform the duties of the 
 position, the officer was entitled to pay. (Aus- 
 tin r. U. S., 20 Ct. Cls., 2m.) 
 
 When entitled to examination. — Under a 
 misconstruction of the law a practice grew up 
 in the Navy Department by which promoted 
 officers were allowed the pay of their new grade 
 from the time when they became eligible for 
 examination; but this was corrected by the 
 Secretary of the Navy in 1877, who recom- 
 mended that the increased pay of a promoted 
 officer should be allowed only from the time 
 when a vacancy occurred to which he could 
 have been promoted if an opportunity for ex- 
 amination had been given him. This recom- 
 mendation was based on a correct construction 
 of the statute. (Hunt v. U. S., 116 U. S., 394.) 
 
 Under the pro\dsions of the act of July 16, 
 1862 (12 Stat., 586, sec. 16), an officer of the 
 Na-s'y of a class subject by law or regulation to 
 examination before promotion to a higher grade 
 was not entitled to be examined until his turn 
 for promotion had arrived or was near at hand. 
 (Hunt V. U. S., 116 U. S., .394.) 
 
 Under a regulation which pro\dded that 
 "candidates for promotion to the grade of chief 
 engineer must have served at least two years at 
 sea as first assistant engineers on board a naval 
 steamer" a first assistant engineer became 
 eligible to examination for promotion when he 
 had served two years at sea upon a naval 
 steamer; but he was merely eligible. He was 
 not entitled to be examined until his turn for 
 promotion had arrived or was near at hand. 
 In no event, therefore, could he demand that 
 the increased pay of his new gi'ade should begin 
 until he had a right to be examined for promo- 
 tion. It would be an unwarranted construction 
 of the statute and regulation to hold that as 
 soon as a first assistant engineer had served two 
 years at sea on board a naval steamer he was 
 entitled, as a matter of right, to an immediate 
 examination whether there was a vacancy in 
 the next higher grade to which he could be 
 promoted or not; and that if his examination 
 was delayed by his absence on duty he could, 
 when examined and promoted, demand the 
 pay of a chief engineer from the time when he 
 had completed his two years' service at sea. 
 (Hunt V. U. S., 116 U. S., 394.) 
 
 For other cases, see note to section 1495, Re- 
 vised Statutes. 
 
 OflScer promoted subject to examina- 
 tion. — An officer nominated and confirmed for 
 promotion, subject to the condition that his 
 commission be \vithheld until he pass an ex- 
 amination required by law, will not be entitled 
 to the salary of the office until he comply. Un- 
 less there be a holding of an office, de facto or 
 de jure, there is no right to its salary. (Crygier 
 v.V. S., 25 rt. ris., 268.) 
 
 Officer failing upon examination for pro- 
 motion. — If a naval officer's examination for 
 promotion be postponed through no fault of 
 his, and he afterwards be examined and found 
 qualified, the increased rate of pay to which his 
 promotion would entitle him shall commence 
 from the date when he would have been en- 
 titled to it had he been examined and found 
 qualified at the time so required by law or 
 regulation; but this does not extend to officers 
 who upon examination, being found not quali- 
 
 fied, must be suspended under section 1.505, 
 Revised Statutes, from promotion for one year. 
 (Austin V. U. S., 20 Ct. Cls., 269.) 
 
 For other cases, see note to section 1505, Re- 
 vised Statutes; and see specific cases noted 
 below. 
 
 Section 1562 applicable to warrant offi- 
 cers. — An officer in the Navy whose promotion 
 depends not upon vacancies occurring but upon 
 length of service as a boatswain and examina- 
 tion for promotion is entitled to the increased 
 pay of the office of chief boatswain from the 
 date on which he became entitled to examina- 
 tion. In such case he is entitled to the in- 
 creased pay, not under the act of June 22, 1874 
 (18 Stat., 191), which relates only to promo- 
 tions in course to fill vacancies, but under sec- 
 tion 1562, Revised Statutes. In this case the 
 officer was promoted on April 14, 1905, to take 
 rank as chief boatswain from March 6, 1905, 
 the date he became entitled to examination. 
 Held, that he is entitled to increased pay from 
 said date of rank. (Doyle v. U. S., 47 Ct. Cls., 
 356.) 
 
 Act of March 4, 1913, construed liter- 
 ally. — If the act of March 4, 1913, quoted above, 
 means anything, it was intended by Congress 
 thereby to confer upon the appointing power the 
 right to name the date upon which an officer 
 advanced in grade or rank should take such 
 grade or rank and receive pay and allowances 
 accordingly. This is the plain language of the 
 law. (Smith v. U. S., 50 Ct. Cls., 244.) 
 
 The act of March 4, 1913 (37 Stat., 892), 
 would seem to be too plain for construction. 
 The said act, in language which can not be mis- 
 understood, provides that officers "shall be al- 
 lowed the pay and allowances of the higher 
 grade or rank: from the date stated in their com- 
 missions." (Smith V. U. S., 50 Ct. Cls., 244.) 
 
 The act of March 4, 1913, is especially free 
 from ambiguity, and was intended to fix a date 
 from which officers . coming within its terms 
 should be paid. It is designed to establish uni- 
 formity, and set at rest disputations \\-ith re- 
 spect to its subject matter, by bringing the 
 whole subject of pay vvithin fixed, definite, and 
 certain limitations. (Crapo v. U. S., 50 Ct. 
 Cls., 337.) 
 
 An officer's commission determines the date 
 it was intended he should take rank, and he is 
 entitled under the act of March 4, 1913, to the 
 pay and allowances fixed therefor by law from 
 said date. (Crapo v. U. S., 50 Ct. Cls., 337.) 
 
 The single question presented in a case aris- 
 ing under the statute of March 4, 1913, is. Was 
 the officer's status such as to entitle him to pay 
 from the date stated in his commission? ( Crapo 
 V. U. S., 50 Ct. Cls., 337.) 
 
 If an officer promoted to a higher office was 
 eligible to the office on the date stated in his 
 commission, he is entitled under the act of 
 March 4, 1913, to the pay and allowances of the 
 higher office from said date; if he was not, 
 neither the court nor any administrative officer 
 of the Government has a right to alter the date 
 of his commission or to change the essential 
 proceedings followed by the President in doing 
 what it may be presumed he thought he had a 
 right to do. (Crapo v. U. S., 50 ('t. ("Is., 337.) 
 
 Erroneous date in commission can not be 
 changed by the courts. — ^Tien the Presi- 
 
 834 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1562. 
 
 dent, acting in pursuance of law, nominates 
 and appoints an officer, and the Senate con- 
 firms the appointment, his commission there- 
 upon issued is his warrant of authority, and the 
 date thereof can not be changed, eliminated, 
 or substituted by an administrative officer 
 of the Government nor by the com't. (Crapo v. 
 U. S., 50 Ct. Cls., 337.) 
 
 The administrative officers can not change the 
 date of rank, neither can the court change the 
 commission. The right to change it rests with 
 the appointing power. (Toulon v. U. S., 51 
 Ct. Cls., 87.) 
 
 Erroneous date of commission not con- 
 trolling under act of March 4, 1913. — 
 Under the act of March 4, 1913, the date stated 
 in the commission is not controlling; the court 
 can not change the date, where it appears to be 
 erroneous, but it can refuse relief where the 
 date is erroneous. (Downes v. U. S., 52 Ct. 
 Cls., 237, 240.) 
 
 The statute of March 4, 1913, does not author- 
 ize paj^ and allowances where the date stated 
 in the commission is a date prior in point of 
 time to that on which the officer was eligible 
 to promotion to the grade to which he is pro- 
 moted. (Toulon V. U. S., 51 Ct. Cls., 87.) 
 
 The language of the Court of Claims in Smith 
 V. United States (50 Ct. Cls., 244, 249, above 
 noted) implies, as a matter of course, that in 
 naming the date upon which an officer pro- 
 moted should take rank and receive pay positive 
 law is not ignored. (Toulon v. U. S., 51 Ct. 
 Cls., 87.) 
 
 WTiere the commission issued to a naval 
 officer shows that the date of rank is incorrect 
 he can not, by virtue of the act of March 4, 
 1913, recover pay from the date so stated. As 
 he can not recover pay from the date stated in 
 his commission in such case, he can not recover 
 at all. (Toulon v. U. S., 51 Ct. Cls., 87.) 
 
 Wliere an erroneous date is stated in the com- 
 mission, and the increased pay of the higher 
 grade denied by the Court of Claims for that 
 reason, and the President, with the ad\dce and 
 consent of the Senate, issues a new commission 
 to correct the date of rank pre\dously stated, 
 the increased pay will be allowed from the date 
 stated in the new commission. (Toulon v. 
 U. S., 52 Ct. Cls., 333.) 
 
 Act March 4, 1913, requires that ad- 
 vancement be pursuant to law. — The 
 statute of March 4, 1913, does not provide that 
 when an officer is advanced in grade or rank he 
 shall haA'e the pay and allowances of the higher 
 grade or rank from the date stated in his com- 
 mission, but it does provide that when the ad- 
 vancement is "pursuant to law" he shall have 
 them. When he is advanced or promoted 
 contrary to law, if such a case is supposable, or 
 when the period of suspension required by sec- 
 tion 1505, Re\ised Statutes, for instance, is 
 overlooked or disregarded, he can not be said 
 to have been advanced pursuant to law; and 
 in such case he can not be entitled to the pay 
 and allowances of the higher grade from the 
 date stated in his commission. (Downes v. 
 U. S., 52 Ct. Cls., 237.) 
 
 The Court of Claims did not hold in the cases 
 of Smith, Crapo, or Toulon (50 Ct. Cls., 244, 
 342, and 51 Ct. Cls., 87, noted above), and does 
 not now hold, that the act of March 4, 1913, 
 
 authorizes the fixing of a date in the commis- 
 sion from which the rank begins, which is con- 
 trolling on the court regardless of whether the 
 promotion was made pursuant to law or not 
 (Downes v. U. S., 52 Ct. Cls., 237.) 
 
 The act of March 4, 1913, contemplates that 
 the officer will be advanced under and in ac- 
 cordance with law, and that the date from 
 which the higher rank begins will be stated in 
 pursuance of law. Conversely, it does not 
 contemplate that an arbitrary date will be 
 chosen, nor that an officer will be advanced in 
 contravention of the positive requirement that 
 he shall not be promoted or advanced while 
 under suspension for a failure to professionally 
 qualify when examined. (Downes v. U. S , 52 
 Ct.. Cls., 237.) 
 
 Under the act of March 4, 1913, the court has 
 the right to inquire as to whether there was a 
 vacancy, and also the right to inquire whether 
 the date of commission was prior to any va- 
 cancy, or whether any positive law had been 
 ignored in fixing the date of rank in the com- 
 mission; but ordinarily the court can not 
 look into a matter relating purely to administra- 
 tive action. (Downes v. U. S., 52 Ct. Cls 
 237, 243.) 
 
 Where a machinist was advanced to the grade 
 of chief macliinist, and given a date of rank in 
 the higher grade which, in the opinion of the 
 Court of Claims, was prior to the date on which 
 he became eligible for promotion, held, that he 
 was not promoted in grade or rank pursuant to 
 law, and is illegally in the ser\dce; his claim for 
 difference in pay must therefore be denied. 
 (Hooper v. U. S., 53 Ct. Cls., 90.) 
 
 An officer was actually commissioned as 
 passed assistant surgeon on July 25, 1912, by 
 promotion from the grade of assistant surgeon. 
 On that date he. was eligible to promotion, and 
 his appointment was therefore pursuant to law. 
 His commission, however, purported to give 
 him rank in the higher grade from April 11, 
 1911, on which date he was not eligible to pro- 
 motion. It would be a too literal \'iew of the 
 act of March 4, 1913, to hold that his promotion 
 was pursuant to law, because at the time of his 
 actual promotion such promotion could legally 
 be made. The date which the statute contem- 
 plates would be stated in the commission is 
 that upon which the officer becomes eligible to 
 promotion, because the statute regulates the 
 pay during the period of constructive ser\ice, 
 and therefore the court must take notice of the 
 date when such constructive ser^dce can begin, 
 pursuant to law. The ascertainment of that 
 date is confined in the first instance to the ap- 
 pointing power. (Toulon v. U. S., 51 Ct. Cls., 
 87.) 
 
 The promotion of an assistant surgeon before 
 completing three years' service would not be 
 pursuant to law, and likewise his promotion 
 during a period of six months' suspension under 
 section 1505, Re^dsed Statutes, as amended, 
 would not be pursuant to law. Accordingly, 
 held, that he was not adA'anced pursuant to law, 
 because he was given a date of rank prior to the 
 expiration of his period of suspension. (Tou- 
 lon V. U. S., 51 Ct. Cls., 87.) 
 
 Specific cases involvinfi;' retroactive 
 rank.— See cases noted above, under this sec- 
 tion; see aUo notes to sections 1560 and 1561, 
 
 835 
 
Sec. 1562. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Re\'i8e(i Statutes; and see note to section 1458, 
 Revised Statutes, under "Antedating rank on 
 promotion. " 
 
 A lieutenant (junior grade) became due for 
 promotion to fill a vacancy which existed in 
 the grade of lieutenant on February 1, 1898; Iw 
 reason of absence on duty on board the U. S. S. 
 Maine he could not be examined; on February 
 15, 1898, he was injured in the destruction of 
 the Maine, from which injuries he died in June 
 1898; in the meantime, after his injuries and 
 prior to his death therefrom, he was commis- 
 sioned a full lieutenant to rank from P'ebruary 1, 
 1898. He was allowed in his lifetime the pay 
 of a full lieutenant from the date he took rank, to 
 which he was clearly entitled in the application 
 of section 1562 and. the act of June 22, 1874, 
 chapter 392. Held, that at the time of his 
 death he was a full lieutenant, and that his 
 widow, under the act of March 30, 1898 (30 
 Stat., 346, sec. 2), was entitled to a sum equal 
 to 12 months' sea pay of the grade of lieutenant, 
 which is the amount that the officer would have 
 been entitled to under section 1562, Revised 
 Statutes, and the act of June 22, 1874 (18 Stat., 
 191), had he survived. (Blandin v. U. S., 
 
 35 Ct. Cls., 568, distinguishing Swan v. U. S., 
 113 U. S., 747.) 
 
 An assistant surgeon in the Navy became 
 due for promotion to passed assistant surgeon to 
 fill a vacancy which occurred on July 1, 1897; 
 he was not promoted until February 13, 1899, 
 when he was commissioned as passed assistant 
 surgeon to rank from July 9, 1897. Held, that 
 in consequence of section 1562, Revised Stat- 
 utes, and the act of June 22, 1874 (18 Stat., 191), 
 his rate of pay on ^lay 1, 1898, was that of passed 
 assistant surgeon, and should be so computed for 
 the purpose of determining his share in the dis- 
 tribution of bounty under section 4631, Re- 
 vised Statutes. (Engagement at Manila Bay, 
 
 36 Ct. Cls., 206, 209, citing Blandin v. U. S., 
 35 Ct. Cls., 568.) 
 
 Where an officer was entitled to his first ex- 
 amination for promotion on March 3, 1909, and 
 through no fault of his own such examination 
 was delayed until May 17, 1909; and he failed 
 on such examination and was suspended from 
 promotion, under section 1505, Plevised Stat- 
 utes, for one year from May 17, 1909; and he 
 was again examined on June 10, 1910, and pro- 
 moted with date of rank in his commission as 
 March 3, 1910, being one year from the date he 
 originally became due for promotion. Hdd, 
 that under the act of March 4, 1913, he was en- 
 titled to pay from the date so stated in his com- 
 mission, and that it was but doing him justice 
 to date his rank one year later than the date 
 when he was entitled to his first examination. 
 (Smith v._ U. S., 50 Ct. Cls., 244.) 
 
 An assistant surgeon becoming eligible for 
 promotion to passed assistant surgeon after 
 three years' service and who failed profession- 
 ally upon examination for promotion, was 
 again eligible for promotion, under section 
 1505, Revised Statutes, as amended, after the 
 expiration of six months from the date he 
 originally became due. Where he was com- 
 missioned in the higher grade, upon qualifying 
 by reexamination, with a date of rank earlier 
 than six months from the date he originally 
 became due for promotion, he was not enti- 
 
 tled to pay from the date of rank so stated in his 
 commission. (Toulon v. U. S., 51 Ct. Cls., 87; 
 see also note to sec. 1505, R. S.) 
 
 The act of March 3, 1915 (38 Stat., 942), 
 created in the Navy the grades of acting pay 
 clerk, pay clerk, and chief pay clerk, and 
 rendered eligible for commission as chief pay 
 clerks, paymasters' clerks then in the Navy and 
 former paymasters' clerks whose appointments 
 had been revoked prior to the act and who had 
 not less than six years actual service as pay- 
 masters' clerks. Hdd, that a paymaster's clerk 
 who was commissioned in accordance A\ath said 
 act as chief pay clerk was not "advanced in 
 gi'ade or rank pursuant to law' within the 
 meaning of the act of March 4, 1913; that said 
 paymaster's clerk was not a member of the 
 new corps created by the act of 1915 until he 
 was commissioned therein ; and that his appoint- 
 ment as chief pay clerk was no more an advance- 
 ment in giade or rank than would have been 
 the appointment of a former paymaster's clerk 
 ha\dng the requisite qualifications; that in 
 either case the appointment would be that of an 
 outsider, who had no grade or rank as a warrant 
 or commissioned officer at the time of such 
 appointment. The question is not the same 
 as that in the case of Smith v. United States 
 (noted above), in which a machinist was pro- 
 moted to the grade of chief machinist pursuant 
 to the law which in terms referred to such ad- 
 vancement as a promotion. Accordingly, in 
 this case, where the officer was commissioned 
 as chief pay clerk on August 3, 1915, but was 
 given date of rank as July 1, 1915, he was not 
 entitled to pay as chief pay clerk from the date 
 of rank so stated in his commission. (Seifert v. 
 U. S., 52 Ct. Cls., 40.) 
 
 An officer became due for promotion by 
 seniority to fill an existing vacancy in the 
 next higher grade; he was found upon exam- 
 ination incapacitated for service by reason 
 of hernia contracted in the line of duty, and 
 therefore not recommended by the board for 
 promotion; the Bureau of Medicine and Surg- 
 ery recommended that he be ordered to a 
 na^•al hospital for operative treatment, and 
 that he be reexamined when he had recovered 
 to determine his physical fitness for promotion; 
 the Secretary of the Navy, reciting the rec- 
 ommendation of the Bureau of Medicine 
 and Surgery, transmitted the record to the 
 President advising that the findings and rec- 
 ommendations of the board of medicial ex- 
 aminers be approved, with a view to effect- 
 ing the recommendation of the Bureau of 
 Medicine and Surgery. The President's in- 
 dorsement was as follows: "The findings 
 and recommendation of the board in thia 
 case are approved." Thereafter the officer 
 was admitted to the naval hospital for opera- 
 tive treatment, and ha\-ing subsequently 
 passed the required examinations was pro- 
 moted from the date of the vacancy which 
 had been held open for liim in the meantime. 
 Held, that the officer was ad^'anced in grade 
 or rank pursuant to law under the act of March 
 4, 1913, and is entitled to the pay of the higher 
 grade for constructive service from the date 
 of the vacajicy, as stated in his commission; 
 further held, that it would be too strict, if not 
 strained, a construction of the President's 
 
 836 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1562. 
 
 action to say that he merely approved the 
 finding of the l)oard of medical examiners, 
 when as a matter of fact he had before him 
 not only their report hut the recommendation 
 of the Bureau of Medicine and Surgery and 
 the advice thereon of the Secretary of the 
 Navy. It was not an unreasonable construc- 
 tion' that the President's approval of the 
 board's findings and recommendation in- 
 cluded an approval of the recommendation 
 of the BTU-eau of Medicine and Surgery. Fur- 
 ther, held, that section 1505, Revised Statutes, 
 as amended, relating to suspension from 
 promotion applies to officers not professionally 
 qualified, and is not applicable in a case 
 where the examination develops merely a 
 physical disqualification. (Downee v. U. S., 
 52 Ct. Cls., 237; see also note to sec. 1505, 
 R. S.) 
 
 An assistant surgeon who, on original ap- 
 pointment as such, executed his oath of office 
 on December 4, 1907, but whose commission, 
 in accordance with administrative custom, 
 fixed his date of rank as November 29, 1907, 
 may be regarded as becoming eligible for 
 promotion after three years from the date 
 of rank so stated in his original commission, 
 instead of requiring three years' actual ser^-ice; 
 and the said officer ha^•ing failed on examina- 
 tion for promotion and been suspended for 
 six months, in accordance with section 1505, 
 Revised Statutes as amended, he again be- 
 came eligible for promotion after the expira- 
 tion of three years and six months from the 
 date he took rank as stated in his original 
 commission, that is, on May 29, 1911; and 
 having been promoted to the gi-ade of passed 
 assistant surgeon to rank from the last-named 
 date, he was entitled under the act of March 
 4, 1913, to be paid from the date of rank so 
 stated in his commission. (Toulon v. U. S., 
 52 Ct. Cls., 333.) 
 
 A macMnist in the Na\'y become eligible 
 for promotion to chief machinist in December, 
 1912; in February, 1913, a naval examining 
 board reported the said machinist qualified 
 for promotion; however, owing to unfavorable 
 reports as to fitness, the department recom- 
 mended and the President directed in April, 
 1913, that final action on the recommendation 
 be suspended for one year; in October, 1914, 
 he was reexamined and found suffering from 
 neurasthenia contracted in line of duty and 
 thereby incapacitated for service, and was not 
 recommended for promotion; the President 
 approved this report of the board of medical 
 examiners on November 21, 1914; subsequent- 
 ly he was examined 1)y a naval retiring board 
 and found temporarily incapacitated for 
 active ser\'ice by reason of neurasthenia, 
 and recommendation was made that he be 
 granted three months' sick leave; this rec- 
 ommendation was approved by the President 
 on January 2, 1915; in June, 1915, he was 
 again examined by a naval retiring board 
 and found not incapacitated for active duty, 
 and the President approved this report; in 
 Septeml)er, 1915, he was again examined for 
 promotion and found physically qualified, 
 but in Novemljer following the naval examin- 
 ing l)oard reported him as mentally and moral- 
 ly but not professionally qualified, and did 
 
 not recommend him for promotion; in De- 
 cember, 1915, the President approved this 
 repoi't and directed that he be suspended 
 from promotion for period of six months; in 
 July, 1916, he was examined by a board of 
 medical examiners and found physically in- 
 capacitated for duty and it was recommended 
 by the board that he be reexamined physical- 
 ly in six months; no action was taken by the 
 President on this report; in January, 1917, 
 he was reexamined l>y a board of medical 
 examiners and a naval examining board, 
 found qualified by both l)oards, and recom- 
 mended for promotion. These reports were 
 approved by the President and on April 30, 
 1917, the officer was appointed a chief machin- 
 ist in the Na\'y to rank from June 27, 1913, 
 being six months after the date that he orig- 
 inally became due for promotion; he was 
 paid as machinist to January 29, 1917, and 
 claimed the difference in pay between that 
 of machinist and that of chief machinist from 
 June 27, 1913, the date of rank stated in his 
 commission. Held, that under sections 1493, 
 Re^'ised Statutes, and section 1505, Re\ised 
 Statutes, as amended by the act of March 11, 
 1912 (37 Stat., 73), the act of June 18, 1878 
 (20 Stat., 165), and the act of March 4, 1913 
 (37 Stat., 892), he was not promoted in grade 
 or rank piu-suant to law, l)ecause he was not 
 eligible for promotion on the date of rank 
 stated in his commission, and he is therefore 
 illegally in the service and not entitled to 
 difference of pay as claimed. (Hooper v. 
 U. S., 53 Ct. Cls., 90; see also note to sec. 1505, 
 R. S.) _ 
 
 An ensign in the Na^^ became eligible for 
 promotion by length of ser\dce to the grade of 
 lieutenant (junior grade) on January 31, 1910; 
 he successfully passed his examination, as re- 
 quired by section 1496 of the Re\dsed Statutes, 
 but was found not physically qualified by the 
 medical board acting under section 1493, Re- 
 vised Statutes, and it was recommended by 
 said board that he be further examined physi- 
 cally in three months, in order to ascertain the 
 extent of his incapacity. The findings and 
 recommendations of both boards were approved 
 by the President on December 12, 1910. Being 
 subsequently examined and found physically 
 qualified, he was commissioned as a lieutenant 
 (junior grade) on May 2, 1911, to rank fi'om 
 January 31, 1910. Held, that he was entitled 
 to the pay of lieutenant (junior gi-ade) from the 
 date stated in his commission; that this case is 
 more analogous to that of Downes v. United 
 States (above noted) than that of Hooper v. 
 United States (above noted). (Wadsworth v. 
 U. S., 55 Ct. Cls., 383.) 
 
 Distinction between rank and oflB.ce.— 
 The distinction between rank and office is not 
 without importance when considering the right 
 of the officer to take rank prior to the time when 
 he is actually commissioned in office. To be 
 an officer he must pass an examination, be 
 nominated to and confirmed by the Senate, 
 and receive a commission; but he takes rank as 
 fi-om the date he became eligible to promotion 
 to such office. His right to the rank becomes 
 absolute when he is actually commissioned, and 
 before that time he was merelv eligible to it. 
 (Toulon V. U. S., 51 Ct. Cls., 87, 94.) 
 
 837 
 
Sec. 1663. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 The rule and custom of promotion in rank 
 from tlie date the ollicer becomes eligible to 
 promotion tinda recognition in many statutes, 
 of which the act of June 22, 1874, and section 
 1562, Revised Statutes, referring to pay be- 
 tween the date of commission and date of rank, 
 are examples. The date of an officer's rank on 
 promotion is, therefore, that on which he be- 
 comes eligible to promotion, and though his 
 actual appointment in the higher grade be at a 
 later time, his date of rank relates back to the 
 period stated. (Toulon v. U. S., 51 Ct. Cls., 
 87, 93.) 
 
 An officer takes rank in his grade from the 
 time when the law entitles him to do so, and not 
 necessarily from the time when he is com- 
 missioned. (Howell V. U. S., 25 Ct. Cls., 288; 
 Toulon V. U. S., 51 Ct. Cls., 87, 93.) 
 
 Section 1562, Ile\ased Statutes, the act of 
 June 22, 1874, and the act of March 4, 1913, 
 each has in contemplation the custom of ad- 
 vancement according to number in gi-ade, and 
 that there is one date when the officer is actually 
 commissioned in the higher grade, and a pre- 
 ceding date upon which he is eligible to pro- 
 motion thereto. Referring, as it does, to the 
 matter of pay, the purpose of the act of March 4, 
 1913, may be rendered in the language of sec- 
 tion 1562, providing that "the period of service 
 of the party in the giade to which he was pro- 
 moted shall, in reference to the rate of his pay, 
 be considered to have commenced from the 
 date when he was so entitled to take rank." 
 (Toulon V. U. S., 51 Ct. Cls., 87, 97.) 
 
 The officer's service in the grade to which 
 promoted actually begins on the date that he is 
 actually commissioned, but the date upon 
 which he became eligible to promotion may be 
 
 denominated the date of his constructive sei"v- 
 ice in such grade. The act of March 4, 1913, 
 refers to this latter date, from which he con- 
 structively enters the higher grade and takes 
 rank upon being actually commissioned at a 
 subsequent date. By observing the distinction 
 which is to be taken under the act of 1913 be- 
 tween actual and constructive service, and the 
 fact that the pay and allowances therein pro- 
 vided for relate to the period of such con- 
 structive service and have no relation to the 
 period of actual ser\dce following the date of 
 commission, we find the proper application for 
 the words ' 'advanced in grade or rank, pursuant 
 to law," as used in said act. (Toulon v. U. S., 
 51 Ct. Cls., 87, 97.) 
 
 A lieutenant in the Navy received additional 
 pay for duty as aid to a rear admiral from July 
 1, 1914, to August 20, 1914; thereafter he was 
 commissioned as a lieutenant commander, with 
 rank as such from July 1, 1914. As a lieutenant 
 commander he would not be entitled to the 
 additional pay allowed aids to rear admirals. 
 Held, that the Government is not entitled to 
 recover the sum allowed him for additional pay 
 as aid during the period in question; that he 
 was in fact a lieutenant and not a lieutenant 
 commander dicing said period ; that he did not 
 become a lieutenant commander until a subse- 
 quent date, and the fact that his commission 
 retroactively gave him rank as a lieutenant 
 commander during the period when he was in 
 fact serving as a lieutenant, and that he was 
 entitled to pay as a lieutenant commander from 
 date of rank pursuant to the act of March 4, 
 1913, can not serve to make him a lieutenant 
 and a lieutenant commander in fact at the 
 same time. (Downes v. U. S., 52 Ct. Cls., 327.^ 
 
 Sec. 1563. [Advances to persons on distant stations.] The President of the 
 United States may direct such advances, as he may deem necessary and proper, 
 to such persons in the naval service as may be employed on distant stations 
 where the discharge of the pay and emoluments to which they are entitled can- 
 not be regularly effected. — (.31 Jan., 1823, c. 9, s. 1, v. 3, p. 723.) 
 
 Amendment to this section was made by act of 
 March 4, 1917 (39 Stat., 1181), which pro- 
 vided that "hereafter advances of pay not 
 to exceed three months' pay in any one 
 case may be made to officers ordered to 
 and from sea duty and to and from shore 
 duty beyond the seas, under such regula- 
 tions as the Secretary of the Navy may 
 prescribe." 
 
 By section 3648, Revised Statutes, advances of 
 public money were prohibited, with a 
 saving clause with respect to persons em- 
 ployed in the military and naval service 
 similar to the provisions of section 1563, 
 Revised Statutes. Other exceptions have 
 been made by specific statutes, as, for 
 example, act of August 22, 1912 (37 Stat., 
 32), relating to partial payments to con- 
 tractors doing work for the Navy Depart- 
 ment; act of October 6, 1917, section 5 
 (40 Stat., 383), relating to contractors for 
 supplies for the War and Navy Depart- 
 ments "during the period of the existing 
 emergency"; act of April 27, 1904 (33 
 Stat., 403), relating to pm-chase of mileage 
 
 books and transportation tickets for officers 
 and other persons in advance of travel per- 
 formed under the Navy Department; and 
 various laws relating to pajiuent for sub- 
 scriptions to newspapers and periodicals, 
 which are noted under section 192, Re- 
 vised Statutes. 
 Validity of Navy Regulations relating to 
 advances. — Prior to the amendment of March 
 4, 1917, noted above, it was held by the Comp- 
 troller of the Treasury that Navy Regulations 
 (art. R 4458, Navy Regs., 1913) which author- 
 ized advances in pay to officers ordered to 
 duty at sea or on shore beyond the continental 
 limits of the United States were invalid under 
 modern conditions as applied to officers ordered 
 to duty where disbursing officers are stationed 
 who could regularly make payments to them 
 of amounts due for pay and emoluments, and 
 that such regulations should be amended to 
 meet the requirements of sections 1563 and 
 3648, Revised Statutes. (21 Comp. Dec, 733.) 
 After said decision of the C'omptroller was 
 rendered, it was held by the Judge Advocate 
 General of the Navy, December 21, 1916 (file 
 
 838 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1565. 
 
 3980-1275), that the Navy Regulations in 
 question, which had been in effect for many 
 years with the full knowledge and acquiescence 
 of the accounting officers and vnth the implied 
 sanction of Congi-ess, should be obeyed by dis- 
 bursing offxCers, citing the Attorney General's 
 opinion of May 19, 1915 (noted under sec. 285, 
 R. S.), and other opinions of the Attorney Gen- 
 eral (see 2 Op. Atty. Gen.. 204, and 1 Op. Atty. 
 Gen., 620, relating to advances to diplomatic 
 
 officers going abroad). Certain minor modifi- 
 cations were, however, made in article 4458 
 (Naw Regs., 1913), by C. N. R. 7 of September 
 15, 1916, and C. N. R. 10 February 25, 1918. 
 (See art. 1803, Navy Regs., 1920; see also note 
 to sec. 236, R. S., respecting jurisdiction of the 
 accounting officers and the Secretary of the 
 Navy; and note to sec. 161, R. S., respecting 
 validity of Navy Regulations.) 
 
 Sec. 1564. [Persons acting as paymaster.] Any person performing the 
 duties of pa}T2iaster, acting assistant pa^Tnaster. or assistant paymaster, in a 
 ship at sea, or on a foreign station, or on the Pacific coast of the United States, 
 by appointment of the senior officer present, in case of vacancy of such office, 
 in accordance with the provisions of section thirteen hundred and eighty-one, 
 and not otherwise, shall be entitled to receive the pay of such grade wliile so 
 acting.— (17 July, 1861, c. 4, s. 4, v. 12, p. 258.) 
 
 See section 1381, Revised Statutes, and note 
 thereto. 
 
 Not entitled to dual compensation. — 
 Under sections 1381 and 1564, ReAdsed Statutes, 
 a person who holds no office under the Govern- 
 ment may be given an acting appointment as 
 paj-master, and in that case the sections may 
 operate literally to entitle the appointee to the 
 pay of the grade while so acting; but if the 
 appointee holds another office under the Gov- 
 ernment, he can not escape from the prohibi- 
 tions of the Re^'ised Statutes, sections 1763 and 
 1765, prohibiting dual compensation. In such 
 case it is the liberal custom of the Treasury 
 Department to allow a person holding more 
 than one office the compensation of that one 
 which is larger. (Webster v. U. S., 28 Ct. Cls., 
 25.) 
 
 Status of acting appointee. — A person 
 appointed to act as paymaster in a ship at sea 
 or on a foreign station, under the Revised 
 Statutes, sections 1381 and 1564, does not 
 therebv become an officer. A naval officer 
 
 acting as pajTnaster is appointed to discharge 
 the duties of an office which he does not hold. 
 (Webster v. U. S., 28 Ct. Cls., 25.) 
 
 Pay of acting appointee. — A person ap- 
 pointed pajTQaster to fill the vacancy of a de- 
 ceased officer on a ship at sea or in a foreign 
 port is entitled to the pay of the office but not 
 to the longevity pay of the officer in whose stead 
 he is acting. (Webster v. U. S., 28 Ct. Cls., 25.) 
 
 The offices of engineer and paATuaster in the 
 Navy are incompatible, and he who holds them 
 is not entitled to the compensation of both, but 
 is entitled to the larger of the two. (Webster v. 
 IT. S., 28 Ct. Cls., 25.) 
 
 Termination of acting appointment. — 
 The continuance of an appointment as "act- 
 ing" pajTnaster, under Re\dsed Statutes 1381 
 and 1564, does not depend upon a discharge 
 or revocation; it terminates when another pay- 
 master reports for duty ; and the pay continxies at 
 farthest only to the time when the acting offi- 
 cer's accounts are made up. (Ostrander v. 
 U. S., 22 Ct. Cls., 218.) 
 
 Sec. 1665. [Chiefs of Bureau. Superseded.] 
 
 This section provided as follo"ws: 
 
 "Sec. 1565. The pay of chiefs of Bureau in 
 the Navy Department shall be the highest pay 
 of the grade to which they belong, but not below 
 that of commodore." — (3 Mar., 1871, c. 117, s. 
 12, V. 16, p. 537.) 
 
 It was superseded by act of March 3, 1899, 
 section 7 (30 Stat., 1005), which pro\'ided that 
 the pay of chiefs of bureaus shall be the highest 
 pay of the grade to which they belong, not below 
 that of commodore. 
 
 Other modifications of the law as to pay of 
 chiefs of bureaus were made bv act of May 13, 
 1908 (35 Stat., 128), which pro\dded that their 
 pay and allowances * 'shall be the highest pay 
 of the grade to which they belong, and not 
 below that of rear admiral of the lower nine"; 
 by o.ct of June 24, 1910 (36 Stat., 607), which 
 pro\T.ded that their pay and allowances should 
 be the highest shore duty pay and allowances 
 of rear admirals of the lower nine; by act of 
 August 22, 1912 (37 Stat., 328), which repealed 
 the provisions of the act of June 24, 1910, with- 
 out making any further pro\"ision on the sub- 
 ject — the effect of which was to re^dve the act 
 
 of Mav 13, 1908 (Comp. Dec, June 22, 1916 
 file 26254-2045); and by act of July 1, 1918 
 (40 Stat., 717 \ which provided that chiefs of 
 bureaus in the Navy Department shall receive 
 the same pay and allowances as chiefs of bu- 
 reaus in the War Department. 
 
 Chief of bureau dismissed by sentence 
 of court-martial. — ^The chief of a bureau in 
 the Nav}^ Department tried by court-martial 
 and sentenced to be dismissed fi'om the posi- 
 tion of chief of bureau and to be suspended 
 from rank and duty in his pennanent grade, 
 on furlough pay, for one year, which sentence 
 was duly confirmed by the President, is not en- 
 titled to recover the emoliunents of a chief of 
 bureau for the remainder of the fouf-year 
 term for which he was appointed. A naval 
 court-martial has jurisdiction to sentence chiefs 
 of bureaus to be dismissed from their office as 
 such. (Smith v. U. S., 26 Ct. Cls., 143.) 
 
 For other cases relating to the pay and 
 allowances of chiefs of bureaus, see note to 8ec- 
 tion 421, Re^'ised Statutes; see also note to sec- 
 tion 1556, Revised Statut-es. 
 
 839 
 
Sec. 1566. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Sec. 1566. [Mileage and traveling expenses. Superseded.] 
 
 This section pro\'ided as follows: 
 
 "Sec. 15GG. An allowance of ten cents a 
 mile may be made lO odlcers in the naval 
 ser\'ice, and store-keepers on foreign stations 
 for tiavelinp expenses when under orders. And 
 an allowance may be made to ofiicers tra^•eling 
 in foreign countries under ordere, for expenses 
 of transportation of baggage necessarily in- 
 curred. And no oITicer shall be paid mileage, 
 except for travel actually performed at his own 
 expense and in obedience to orders." — (3 Mar., 
 1835, 0. 27, s. 2, v. 4, p. 757. 17 July, 1862, c. 
 200, s. 7, V. 12, p. 595. 15 July, 1870, c. 295, 
 s. 4, V. 16, p. 332. 16 June, 1874, c. 285, v. 18, 
 p. 72. 3 Mar., 1875, c. 133, v. 18, p. 452.) 
 
 Is was superseded by later enactments set 
 forth below. 
 
 By act of June 16, 1874 (18 Stat., 72\ it was 
 provided "that only actual traveling expenses 
 shall be allowed to any person holding employ- 
 ment or appointment under the United States, 
 and all allowances for mileage and transporta- 
 tion in excess of the amount actually paid are 
 hereby declared illegal; and no credit shall be 
 allowed to any of the disbursing officera of the 
 United States for pajonent or allowances in 
 ^'iolation of this pro\T.sion." 
 
 By act of January 18, 1875 (18 Stat., 297), it 
 was pro\dded "that no allowance shall be made 
 in the settlement of any account for traveling 
 expenses unless the same be incurred on the 
 order of the Secretaiy of the Navy, or the al- 
 lowance be approved by him." 
 
 By act of March 3, 1875 (18 Stat., 452), it was 
 provided "that hereafter only actual traveling 
 expenses shall be allowed to any person holding 
 emploj-ment or appointment under the United 
 States, except marshals, district attorneys, and 
 clerks of the courts of the United States and 
 their deputies; and all allowances for mileages 
 and transportation in excess of the amount 
 actually paid, except as above excepted, are 
 hereby declared illegal; and no credit shall be 
 allowed to any of the disbursing officers of the 
 United States for pa\Tnent or allowances in 
 violation of this pro^^sion." 
 
 By act of June 30, 1876 (19 Stat., 65), it was 
 pro\dded that so much of the act of June 16, 
 1874, above quoted, "as pro\'ides that only 
 actual traveling expenses shall be allowed to 
 any person holding employment or appointment 
 under the United States while engaged on 
 public business, as is applicable to officers of 
 the Navy so engaged, is hereby repealed; and 
 the sum of eight cents per mile shall be allowed 
 Buch officers while so engaged, in lieu of their 
 actual expenses." 
 
 By act of August 5, 1882 (22 Stat., 286), it 
 was provided that "ofiicers of the Navy travel- 
 ing abroad under orders hereafter issued shall 
 travoi ])y the most direct route, the occasion 
 and necessity for such order to be certified 
 by the officer issuing the same; and shall re- 
 ceive, in lieu of the mileage now allowed by 
 law, only their actual and reasonable expenses, 
 certified under their own signatures and ap- 
 proved by the Secretary of the Navv." 
 
 By act of July 7, 189S (30 Stat., 708), it was 
 pro\aded "that nereafter the accounting officers 
 of the Treasury shall not receive, examine, con- 
 
 sider, or allow any claim against the United 
 States for difference between mileage and ac- 
 tual expenses which has been or maj^ be pre- 
 sented by officers of the Navy, their heirs or 
 legal representatives, under the decisions of the 
 Supreme Court which have heretofore been 
 adopted as a basis for the allowance of such 
 claims, which accrued prior to July first, 
 eighteen hundred and seventy-four." (See de- 
 cisions of Supreme Court noted below, under 
 "Act of 1876 allowed mileage for all travel by 
 officers of the Navy.") 
 
 By act of March 3, 1899, section 13 (30 Stat., 
 1007), officera of the line of the Navy, and of 
 the i^ledical and Pay Corps, were given the 
 same allowances, except forage, as officers of 
 the corresponding rank in the Army. 
 
 By act of June 7, 1900 (31 Stat.,"685), it was 
 provided "that in lieu of traveling expenses 
 arid all allowances whatsoever connected there- 
 \vith, including transportation of baggage, offi- 
 cers of the Navy traveling from point to point 
 within the United States under orders shall 
 hereafter receive mileage at the rate of eight 
 cents per mile, distance to be computed by the 
 shortest usually traveled route; but in cases 
 where orders are given for travel to be per- 
 fomied repeatedly between two or more places 
 in the same vicinity the Secretary of the Navy 
 may, in his discretion, direct that actual and 
 necessary expenses only he allowed. Actual 
 expenses only shall be paid for travel under 
 orders outside the limits of the United States 
 in North America." 
 
 By act of March 3, 1901 (31 Stat., 1029), the 
 foregoing provisions of the act of June 7, 1900, 
 were repeated in identical language. 
 
 By act of July 1, 1902 (32 Sut., 663), it Was 
 provided "that hereafter in cases where orders 
 are given to officers of the Navy or Marine C'orps 
 for travel to be performed repeatedly between 
 two or more places in such -^dcinity as in the 
 (Uscretion of the Secretary of the Navy is ap- 
 propriate, he may direct that actual and neces- 
 sary expenses onlv be allowed." 
 
 By act of April 27, 1904 (33 Stat., 403), it was 
 pro\dded that "the Secretary of the Navy is 
 hereby authorized to continue to purchase such 
 mileage books, commutation tickets, and other 
 similar transportation tickets as may in his 
 discretion seem necessary, and to furnish same 
 to officei's and others ordered to perfonn travel 
 on otlicial business; and pajTueut for such 
 transportation tickets upon their receipt, in 
 accordance with commercial usage, or prior to 
 the actual performance of the travel involved, 
 shall not be regarded as an advance of pul:)lic 
 money within the meaning of section thirty- 
 six hundred and forty-eight of the Revised 
 Statutes." 
 
 By act of February 26, 1907, section 6 (34 
 Stat. , 997) , provision was made for travel of offi- 
 cers detailed to the Light-House establishment. 
 
 By act of March 3, 1909 (35 Stat., 774\ it was 
 provdded "that hereafter the settlement of all 
 traveling expense claims, where the pajTiient of 
 such is authorized by existing law, and the 
 determination of distances and of what consti- 
 tutes the shortest usually traveled route in the 
 meaning of laws relating to traveling allowances. 
 
 840 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1566. 
 
 shall accord to such rules as the Secretary of the 
 Navy may prescribe." 
 
 By act of June 30, 1914 (38 Stat., 393), it was 
 provided "that hereafter no mileage shall be 
 paid to any officer where Government trans- 
 portation is furnished such officer." 
 
 By act of May 18, 1920, section 12 (41 Stat., 
 604), provision was made for transportation 
 being furnished by the Government to the wife 
 and dependent child or children of officers and 
 certain enlisted men of the Navy and Marine 
 Corps upon permanent change of station by the 
 latter. The same act and section further pro- 
 vided that "the personnel of the Navy shall 
 have the benefit of all existing laws applying 
 to the Army and the Marine Corps for the trans- 
 portation of household effects." (See also 
 statutes noted under sec. 1135, R. S., as to 
 transportation in AiTny transports.) 
 
 By clauses in the annual naval appropriation 
 acts, under "Bureau of Navigation," officers 
 of the Navy on duty with traveling recruiting 
 parties are entitled to "actual and necessary 
 expenses in lieu of mileage." (See, e. g., act 
 June 4, 1920,41 Stat., 815.) 
 
 By clauses in the annual na\'al appropriation 
 acts, under "Pay, miscellaneous," provision is 
 made "for mileage, at 5 cents per mile, to mid- 
 shipmen entering the Naval Academy while 
 proceecUng from their homes to the Naval 
 Academy for examination and appointment as 
 midshipmen"; for "actual traveling expenses 
 of female nurses"; and for "mileage to officers 
 of the Navy and Na^■al Reserve Force while 
 traveling under orders in the United States, 
 and for actual personal expenses of officers of the 
 Navy and Naval Reserve Force while traveling 
 abroad under orders." (See, e. g., act June 4, 
 1920, 41 Stat., 812.) 
 
 As to travel allowance, Naval Reserve Force, 
 see note to section 1556, Revised Statutes, 
 under "Naval Reserve Force." 
 
 As to ti'ansportation and necessary expenses 
 of members of the Nurse Corps (Female), when 
 traveling under orders, see note to section 1556, 
 Revised Statutes, under "Dental Corps and 
 Nurse Corps (Female)." 
 
 Section 1566 repealed and later revived 
 with modifications. — The provisions of sec- 
 tion 1566, Revised Statutes, allowing ten cents 
 a mile to naval officers ' ' for traveling expenses 
 when under orders," were repealed by the 
 act of June 16, 1874 (18 Stat., 372), but became 
 in force, though modified, by reason of the act 
 of June 30, 1876 (19 Stat., 65), which repeals so 
 much of the act of June 16, 1874, "as is appli- 
 cable to officers of the Nav^," and allows to 
 them eight cents per mile in lieu of their actual 
 expenses. (Steele v. U. S., 30 Ct. Cls., 8.) 
 
 Section 1566 never actually went into effect, 
 so far as the question of mileage is concerned, 
 as by the act of June 16, 1874, it was proAdded 
 that "only actual traveling expenses shall be 
 allowed to any person holding employment or 
 appointment under the United States," etc. 
 This act took effect in such a way as to operate 
 to repeal the section referred to, so far as this 
 subject was concerned, before the same ac- 
 tually had effect. (15 Op. Atty. Gen., 309, 
 citing sec. 5601, R. S., as to the effect of laws 
 passed after Dec. 1, 1873.) 
 
 The act of June 16, 1874, making appropria- 
 tions for the support of the Army was in its 
 terms applicable to every person holding em- 
 ployment or appointment under the United 
 States, and its obAdous purpose was to abolish all 
 payments for traveling expenses in which a 
 specific allowance per mile was made by law, 
 and to establish the more equitable principle 
 of paying the actual expenses of persons travel- 
 ing in the ser\dce of the Government. (U. S. 
 I'. Mouat, 124 U. S., 303.) 
 
 Act of 1874 repealed only in part by act 
 of 1876.— The act of June 16, 1874, wliich pro- 
 \'ided that only actual traveling expenses shall 
 be allowed to any person "holding employment 
 or appointment under the United States, " ap- 
 plied to all persons holding "employment or 
 appointment" under the Government of the 
 United States, including officers of the Navy. 
 The later act of June 30, 1876, which excepted 
 "officers of the Na\-y" from the application of 
 the former act, did not repeal the whole of that 
 statute, even as applicable to the entire Navy, 
 but selected a certain class of persons in the 
 Navy to whom it should no longer apply. This 
 class of persons is designated as "officers of the 
 NaA-y. " No other person holding an employ- 
 mentor appointment under the United States, 
 although in the Navy, was thus relieved from 
 the effect of the act of 1874. The words "offi- 
 cers of the Navy,' ' in the act of 1876, must be 
 confined to those who are, properly speaking, 
 officers of the NaA-y, that is, to those who are 
 appointed by the President, or by a court of 
 law, or by the head of a department, that is, by a 
 member of the President's cabinet. (U. S. v. 
 Mouat, 124 U. S., 303. See below, as to per- 
 sons held not officers of the Na\y under mileage 
 laws. ) 
 
 Act of March 3, 1899, extended Army 
 mileage laws to Navy. — Mleage is an allow- 
 ance, and officers of the Navy coming within 
 the operation of section 13 of the NaA^ per- 
 sonnel act of March 3, 1899 (30 Stat., 1007), be- 
 came entitled only to the same rates of mileage 
 as pro\dded by law or regulations for officers of 
 the Army ; i. e., to a maximum of 7 cents a mile. 
 (7 Comp. Dec, 117. See later laws noted 
 above.) 
 
 Section 1566 repealed only in part by 
 act of March 3, 1901.— The act of March 3, 
 1901 (31 Stat., 1029), repeals section 1566, Re- 
 \'ised Statutes, only as to the amount per mile 
 allowed to officers for mileage, but does not re- 
 peal the proAision in section 1566 that "no offi- 
 cer shall be paid mileage except for travel actu- 
 ally performed at his own expenses and in obe- 
 dience to orders." (Katzer v. U. S., 52 Ct. 
 Cls., 32.) 
 
 Act of 1876 allowed mileage for aU 
 travel by officers of the Navy. — The act of 
 June 30, 1876 (19 Stat., 65), estabhshes one rule, 
 mileage for all travel by officers of the Navy, 
 whether on land or sea. The Government can 
 not by buying for a naval officer traveling under 
 orders a railroad or steamship ticket, reinstate 
 the "actual expense" rule repealed by the said 
 act. (Temple v. U. S., 14 Ct. Cls., 377.) 
 
 An officer of the Na\^ who wliile engaged in 
 public business in 1878", traveled under orders, 
 partly by land and partly by sea, the traAel by 
 
 841 
 
Sec. 1566. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 sea not being in a public vessel, was, under 
 the act of June 30, 1876 ( 19 .Stat., 65), entitled 
 to mileage for the wholvj distance traveled . The 
 accounting officers of the Treasury, in holding 
 that for one class of travel he should have mile- 
 age, and for the other his actual expenses, were 
 attempting to make the law and not to construe 
 it. (U. s. V. Temple, 105 U. S., 97. In this 
 case the accounting officers allowed the officer 
 mileage for the travel by land, and actual ex- 
 penses for his travel by sea. The court said: 
 "When this travel was performed there was not 
 a line on the statute books of the United States 
 which made any provision whatever, under 
 any circumstances, for allowing officers of the 
 Navy, when engaged on the public business, 
 their actual expenses of travel. The only law 
 ever enacted which made such provision had 
 been expressly repealed by the act on which 
 the appellee based his claim for mileage. ") 
 
 The act of March 3, 1835 (4 Stat., 755), which 
 pro\dded that 10 cents a mile should be allowed 
 to naval officers for traveling expenses while 
 traveling under orders, made no distinction 
 between travel in and travel out of the countr}^ 
 The construction put upon it by the Treasury 
 Department to the effect that mileage should be 
 paid for traveling expenses within the United 
 States, but that the usual and necessary pas- 
 sage money actually paid by officers returning 
 from foreign service under orders or on sick 
 leave, when they could not return in a public 
 vessel, would be paid as theretofore, as well as 
 the like expenses of officers going out, which 
 construction was accepted by the Navy Depart- 
 ment and embodied in the Navy Regulations, 
 can not affect the plain provisions of the act. 
 Under both the act of 1835 and the act of June 
 30, 1876, all traveling expenses were to be paid 
 by mileage, and in neither act is there any in- 
 dication of an intention of Congress to make a 
 distinction between travel by sea or on land in 
 foreign countries or in the United States. (U. 
 S. v. Graham, 110 U.S., 219.) 
 
 Prior to the decisions of the Supreme Covu-t 
 noted above, the Attorney General had ren- 
 dered an opinion to the following effect: It 
 was known when the act of June 30, 1876, was 
 passed that the construction which for years 
 had been given by the Navy Department to the 
 law of March 3, 1835, providing that mileage 
 should be paid to officers of the Navy, limited 
 the allowance of the same to those traveling 
 within the lifnits of the United States. When, 
 therefore, Congress reenacted the law sub- 
 stantially in the same terms, and made no 
 clear pro\'ision that the mileage should be paid 
 to those officers who travel by sea and out of the 
 limits of the United States, it must be deemed 
 that in thus reenacting it has accepted the 
 construction theretofore put upon a similar act 
 by the Na\y Department. Accordingly, held, 
 that under the act of 1876, mileage is to be al- 
 lowed and paid to naval officers only when 
 traveling within the United States, in lieu of 
 their actual expenses, and that when traveling 
 without the United States they are to receive 
 their actual expenses alone. (15 Op. Atty. 
 Gen., 309; the Supreme Court decisions noted 
 above overruled this opinion of the Attorney 
 General.) 
 
 See act of July 7, 1898, noted above, which 
 prohibited the accounting officers from allowing 
 claims for differences between mileage and 
 actual expenses, under decisions of the Su- 
 preme Court, where such claims accrued prior 
 to July 1, 1874. 
 
 Actual expenses for travel abroad under 
 act of 1882. — An officer of the Navy author- 
 ized to appear before a court of inquiry on a 
 foreign station, and ordered "on the conclusion 
 of the investigation to return to Yokohama and 
 there to remain until you receive further orders 
 from the department," is "traveling abroad 
 under orders " within the meaning of the act of 
 August 5, 1882 (22 Stat., 286), allowing actual 
 expenses for such travel. (Selfridge v. U. S., 
 28Ct. Cls.,440.) 
 
 Traveling does not intend endless movement. 
 A traveler is one who journeys to foreign lands; 
 one who \asits strange countries and people; an 
 officer, although not in movement while attend- 
 ing a court of inquiry in a foreign country, or 
 during a few days' detention waiting for a con- 
 necting steamer, or during a few days spent in a 
 foreign city on his way out, nevertheless was 
 properly entitled to his expenses at such places. 
 During his stops at these places his status was 
 that of "traveling abroad under orders." He 
 was in the condition of a traveler from the time 
 he left the United States until he returned 
 home. (Selfridge v. U. S., 28 Ct. Cls., 440; 
 see also 10 Comp. Dec, 589; 12 Comp. Dec, 
 358; 25 Comp. Dec, 555; compare 25 Comp. 
 Dec, 485.) 
 
 The question whether traA-el is abroad or 
 within the United States should be determined 
 by the termini of the journey, rather than by 
 the route actually taken. A naval officer 
 traveling under orders from San Francisco to 
 New York, by way of the Isthmus of Panama, 
 is to be considered, under the statutes appli- 
 cable to the case, as traveling under orders in 
 the United States and as entitled to eight cents 
 per mile, measured by the nearest traveled 
 route. (U. S. v. Hutchins, 151 U. S., 542.) 
 
 An officer is to be understood as traveling 
 abroad when he goes to a foreign port or place 
 under orders to proceed to that place, or from 
 one foreign port to another. (U. S. v. Hutch- 
 ins, 151 U. S., 542.) 
 
 Why officers are allowed by Congress mileage 
 in one case and not in the other is not altogether 
 clear, but probably the reason is that travel at 
 home is ordinarily for such short distances and 
 the disbursements therefor are generally for 
 such petty amounts that to save the necessity 
 of the officer keeping a minute account of each 
 outlay, and the accounting officers passing 
 upon the reasonableness of every small item, it 
 was thought better to allow the officer a fixed 
 mileage by the shortest traveled route, leaving 
 him at liberty under certain circumstances, 
 and where his orders are not to proceed by a 
 
 g articular route, to choose his own. (U. S. v. 
 [utchins, 151 U. S., 542.) 
 Actual expenses for repeated travel. — 
 The act of June 7, 1900 (31 Stat., 685), author- 
 izing actual expenses for repeated travel be- 
 tween places in the same Adciuity, invests the 
 Secretary of the Na\'y with discretion to deter- 
 mine what places are "in the same vicinity;" 
 
 842 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1566. 
 
 but the Secretary can exercise this discretion 
 only where the travel must be performed 
 "repeatedly between two or more places." 
 Wliere the travel between two places was not 
 repeated, the officer is entitled to mileage and 
 not actual expenses. (Willits v. U. S., 38 Ct. 
 Cls., 534.) 
 
 The word "vicinity" in the statute has no 
 fixed and definite meaning, and to determine 
 what is or is not a vicinity in these days of 
 express trains and trolley cars must be a matter 
 of discretion, and this discretion is lodged in the 
 Secretary, whose decision is not subject to 
 review by the courts. (Willits v. U. S., 38 
 Ct. Cls., 534.) 
 
 An order of the Secretary of the Navy which 
 does not relieve an officer from duty at a navy 
 yard, but imposes upon him additional duty at 
 another, and requires his personal attention at 
 both, entitles him to mileage for travel between 
 the two and invests him with discretion to de- 
 termine when his presence is necessary at 
 either; such travel is travel "under orders." 
 (Steele u. U. S., 30 Ct. Cls., 8.) 
 
 Mileage not allowed when Government 
 transportation furnished. — By "Govern- 
 ment transportation, ' ' as used in the act of June 
 30, 1914 (38 Stat., 393), is understood transpor- 
 tation on vessels owned or employed by the 
 Government or by conveyances on land so 
 owned or employed, but not transportation 
 furnished on transportation request. Accord- 
 ingly, held, that an officer of the Navy, travel- 
 ing under proper orders in the United States, 
 and furnished transportation on Government 
 requests, is entitled to be paid mileage less 
 cost of transportation furnished and any other 
 expense incurred by the Government. (21 
 Comp. Dec, 690.) 
 
 Where, under proper orders, a naval officer 
 proceeded from his regular station to a certain 
 point, took charge of a motor launch, and re- 
 turned thereon to such regular station, said 
 launch not being pro\dded with sleeping 
 quarters or mess arrangements, he is not en- 
 titled, for the return journey, either to reim- 
 bursement of actual expenses incurred for meals 
 and lodging en route, or to mileage allowance, 
 since he was not performing repeated travel, 
 and was furnished with GoA'ernment transpor- 
 tation within the meaning of the act of June 
 30, 1914. (23 Comp. Dec, 368.) 
 
 The act of June 30, 1914, was passed after the 
 decision of the comptroller (20 Comp. Dec, 
 741), which held that a right to mileage was not 
 lost because an officer traveled on a Govern- 
 ment conveyance. (23 Comp. Dec, 368, 370.) 
 
 Officer performing travel while under 
 suspension. — An officer of the Na'vy ordered 
 to travel to his home in the United States 
 during his suspension from duty by sentence 
 of a general court-martial is entitled to reim- 
 bursement for his actual necessary expenses 
 incurred in traveling from Manilla to San Fran- 
 cisco under said orders. (14 Comp. Dec, 684.) 
 
 Officer performing travel in answer to a 
 subpoena. — An officer of the Navy is entitled 
 only to actual and necessary expenses for travel 
 performed in attending as a witness before a 
 United States grand jury, in response to a sub- 
 poena, notwithstanding that he may have been 
 ordered by his superior officer to perform the 
 
 travel in answer to said subpoena. (4 Comp. 
 Dec, 146.) 
 
 Officer ordered to attend funeral of 
 another officer. — See 11 Comp. Dec, 181, 
 noted under section 1587, Re\ised Statutes. 
 
 Officer traveling to and from leave of 
 absence. — An officer of the Na\'y ordered to 
 proceed to his home and granted a leave of 
 absence, and at the expiration of such leave to 
 return to his station, is traveling for his own 
 pleasure and benefit and not on public business 
 and he is not entitled to mileage. (16 Comp. 
 Dec, 611.) 
 
 It matters not that the officer's leave was not 
 to commence until he arrived at his home, and 
 that the travel to his home was performed be- 
 fore the leave began; such travel was in no 
 sense upon public business, and did not entitle 
 the officer to mileage. (17 Comp. Dec, 252.) 
 
 By act of March 4, 1911 (36 Stat., 1303), it 
 was provided that "the Auditor of the Navy 
 Department is directed to allow mileage to 
 officers of the Navy who have heretofore been 
 disallowed same by reason of a decision of the 
 Assistant Comptroller of the Treasury dated 
 March seventeenth, nineteen hundred and ten; 
 and to pay said allowances out of any balances 
 of the appropriations for pay, miscellaneous, of 
 the Na\^\" (The decision referred to was 
 published in 16 Comp. Dec, 611, noted above.) 
 
 If an officer in making a journey to his home 
 does so for his o^vn pleasure or on private busi- 
 ness, he is not entitled to mileage (citing Perri- 
 mond V. U. S., 19 Ct. Cls., 509; Barker v. U. S., 
 19 Ct. Cls., 291); but where an officer is dis- 
 charged from treatment in a hospital, after a 
 serious illness, and ordered by the proper 
 authorities to proceed to his home and upon his 
 arriA'al there granted three months' sick leave 
 for the purpose of allowing him to regain his 
 health, the travel is on public business within 
 the meaning of the law and he is entitled to ■ 
 mileage for travel in the United States and 
 actual expenses for travel out of the United 
 States, in accordance with the act of March 3, 
 1901 (31 Stat., 1029). (McCauley v. U. S., 50 
 Ct. Cls., 105.) 
 
 In Henderson's case, decided by the Comp- 
 troller of the Treasury October 18, 1910 (noted 
 in McCauley v. U. S., 50 Ct. Cls., 105, 112), it 
 was said: "Whether a leave of absence is 
 granted on account of sickness or for other cause, 
 the officer's status is the same so far as the 
 matter under consideration is concerned 
 [mileage to his home]. While on 'sick leave' 
 or 'ordinary leave' he is not on duty, nor is he 
 subject to the orders of superior authority. 
 His time is placed at his own disposal, as he 
 may see fit, and he can go and come as he 
 chooses." (But see McCauley v. U. S., noted 
 above.) 
 
 The acts of March 3, 1835 (4 Stat., 755), June 
 16, 1874 (18 Stat., 72), and June 30, 1876 (19 
 Stat., 65), pro\ide that naval officers shall be 
 allowed mileage "for traveling expenses when 
 under orders." Where an officer at his home 
 on leave of absence is ordered to a new station 
 for special service, and then back to his home 
 before the expiration of hia leave, it is travel 
 "when under orders" within the intent of the 
 law and he is entitled to mileage therefor. 
 (Fitzpatrick v. U. S., 37 Ct. Cls., 332.) 
 
 54641°— 22- 
 
 -54 
 
 843 
 
Sec. 1566. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 It is a principle long recognized and estab- 
 lislied tliat the expiration of a leave of absence 
 finds the officer, in legal contemplation, at his 
 post; i. e., the officer must actually or con- 
 structively travel from and return to his post 
 at his own expense, liut travel for special 
 ser\'ice within the period of his leave of absence, 
 under orders which leave the oflicer no dis- 
 cretion as to route, and require him to return 
 to his home, does not come within the reason- 
 able application of the principle. (Fitzpatrick 
 t;. U. S.,37Ct. Cls.,332.) 
 
 The ruling of the accounting officers that 
 where an officer absent on leave is ordered to 
 a new station he is entitled to mileage from the 
 place where he happens to be to the new station, 
 "provided the distance is not greater than that 
 fi"om the old station to the new station, " but, 
 conversely, if it be greater that he is entitled 
 to mileage only from the old station to the new 
 station, is one which in legal effect prescribes 
 two rules of law where Congress has enacted 
 one, viz, that naval officers shall be allowed 
 mileage "for traveling expenses when under 
 orders" within the United States. The appli- 
 cation of the statute must be uniform in all 
 cases. (Fitzpatrick v. U. S., 37 Ct. Cls., 332.) 
 
 An officer ordered at the expiration of his 
 leave of absence, to a new station for temporary 
 service, is entitled to mileage from his home to 
 the station ; but he is not entitled to mileage for 
 travel fi-om the station to his regiment, if the 
 distance be less than fi-om his home there. 
 (Foster v. U. S., 43 Ct. Cls., 170.) 
 
 WTiere an officer was detached fi'om his ship 
 and granted leave of absence, without any di- 
 rection for any further duty, the expiration 
 of his leave left him at his home until further 
 orders might be received; it was not his duty 
 to return to the ship or station from which he 
 had been detached. Orders sent him at his 
 home, directing him upon expiration of his 
 leave to proceed to the vessel and station from 
 which he had been detached, for duty on such 
 vessel, entitled him to mileage for travel per- 
 formed thereon, notwithstanding that he was 
 thereby ordered back to the same station. 
 (17 Comp. Dec, 252.) 
 
 Officer traveling on vessel during trial 
 trip. — An officer assisting the superintending 
 naval constructor at the contractor's works was 
 ordered to take passage on a vessel on her trial 
 trip, and was put to no expense whatever in the 
 performance of this duty. Hdd, that he is not 
 entitled to mileage under the act of June 7, 1900 
 (31 Stat., 685). (Williams v. U. S., 47 Ct. Cls., 
 186.) 
 
 The theory of the law in allowing mileage is 
 to provide expenses necessarily incurred in the 
 performance of travel (citing Smith v. U. S., 
 26 Ct. Cls., 568; Galm v. U. S., 39 Ct. Cls., 67); 
 8 cents per mile of travel under the statute is 
 supposed to include very liberal expenses. In 
 this case it does not appear that the officer was 
 charged for any transportation, or for that matter 
 anything else that was necessary for his comfort 
 and convenience. (Williams v. U. S., 47 Ct. 
 Cls., 186.) 
 
 OflB.cer traveling home upon resigning 
 from the Navy. — It has been the policy of 
 the Government to restore an officer to his resi- 
 dence before discharging him from its service; 
 
 and a journey for that purpose, by authority 
 of the Secretary of the Navy, is a matter of 
 pul)lit; obligation "and on public business," 
 within the meaning of the act of June 30, 1876 
 (19 Stat., 65). Where the manifest intent of an 
 order is that a resignation shall take effect when 
 the officer, traveling from a foreign station, 
 arrives in the port of New York, that effect 
 should be given it. (Allerdice v. U. S., 19 Ct. 
 Cls., 511.) 
 
 Officers exchanging stations at their 
 own request. — An Army regulation, pro^^ding 
 that "when officers are permitted to exchange 
 stations, or are transferred at their own request 
 from one regiment or company to another, the 
 public will not be put to the expense of their 
 transportation. They must bear it them- 
 selves," is just and reasonable. If A, at one 
 station, and B, at another, desire to exchange 
 stations or re.giments or companies with each 
 other, and prefer a request to that effect, the 
 regulation assumes that the commanding officer 
 may in his discretion grant it; but as no public 
 interest is advanced by it, and it is consented 
 to for the advantage or pleasure of the two offi- 
 cers, they must bear their own expense of trans- 
 portation in making the exchange. (U. S. v. 
 Phisterer, 94 U. S., 219, 221.) 
 
 It would be too narrow a construction of the 
 regulation to hold that it required that two offi- 
 cers should be concerned in the exchange. 
 An exchange from one station to another sta- 
 tion by the same officer, at his own request, 
 if found compatible with the public service, 
 would be within the words of the regulation 
 and apparently as much within its spirit as 
 when the exchange was made by and between 
 two officers. (U. S. v. Phisterer, 94 U. S., 219.) 
 
 Said regulation, however, does not apply to 
 the case of an officer who, at his own request, is 
 ordered to his home to await orders ; his home is 
 not a "station" and therefore there is no ex- 
 change of stations within the meaning of the 
 regulation. (U.S. v. Phisterer, 94 U. S., 219.) 
 
 See Kozlowski v. United States (54 Ct. Cls., 
 206), decided January 13, 1919, without an 
 opinion, in which judgment was rendered 
 against the United States for mileage in favor 
 of a paymaster's clerk in the Navy who was 
 permitted to exchange stations with another 
 paymaster's clerk. (See also file 26266-664.) 
 
 •Officer traveling by permission. — Under 
 the act of June 30, 1876(19 Stat., 159), an officer 
 was entitled to mileage if the cause of his travel 
 was ' ' public business. ' ' When the commander 
 of a squadron on the high seas decides that there 
 are no habitable quarters for certain warrant 
 officers on the ship, and that he has no alterna- 
 tive save that of detaching them "with permis- 
 sion" to return home, he not feeling at liberty 
 "to order" them home, because their quarters 
 had been assigned by the department, the 
 cause of the travel was public business. Re- 
 quest on the part of the inferior and permission 
 on the part of the superior officer do not neces- 
 sarily change public business into private busi- 
 ness. (Barker v. U. S., 19 Ct. Cls., 288.) 
 
 See also Katzer v. United States (52 Ct. Cls., 
 32), noted below. 
 
 Officer can not be deprived of mileage 
 allowed by law. — An officer, prior to appoint- 
 ment as paymaster's clerk in the Navy, was 
 
 8M 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1566. 
 
 "authorized," by telegram from the Secretary 
 of the Navy, to report at Mare Island, Calif., 
 for necessary physical examination; and "if 
 qualified, authorized proceed at own expense 
 to Newport, R. I., and report Minnesota as 
 paymaster's clerk." On the same date the 
 Secretary addressed a letter to the candidate, 
 authorizing him to report to the commandant, 
 navy yard, Mare Island, for examination, and 
 stating that, if found qualified, "you will exe- 
 cute the inclosed acceptance, oath of office, 
 and beneficiary slip, and will proceed at your 
 own expense to Newport, R. I., reporting to the 
 commanding officer of the Minnesota for the 
 above-mentioned duty"; and directing him to 
 forward a true copy "of this order" to the Bu- 
 reau of Na\'igation. The candidate was fbund 
 qualified, and excuted the oath and acceptance 
 at Mare Island, Calif.; and then performed 
 travel to Newport and reported for duty on the 
 Minnesota. Held, that he became a paymas- 
 ter's clerk in the Navy at Mare Island, upon 
 executing the oath of office, and that the travel 
 performed by him to Newport was travel "under 
 orders." Further held, that the right of an 
 officer of the Navy, including a paj-master's 
 clerk (in 1913), to the emoluments and allow- 
 ances pertaining to his office and prescribed by 
 statute is fixed, and the appointing power can 
 not attach conditions to the appointment which 
 have the effect of depri\dng the officer of what 
 the law authorizes him to receiA'e. The Secre- 
 tary would have no more right to require the 
 officer to waive his statutory travel pay than he 
 would have had to require a waiver of part of 
 his salary as a condition precedent to his ac- 
 ceptance or enjovment of his office. (Katzer 
 v.U. S., 52 Ct. Cls., 32, citing Glavey r. U. S., 
 182 U. S., 595, and Andrews v. U. S., 240 IT. S., 
 90. See also Comp. Dec, Mar. 10, 1917, appeal 
 No. 26679, in case of Chief Pay Clerk T. M. 
 Schnotala, and 23 Comp. Dec, 420, 421; com- 
 pare Hunt V. U. S., 38 Ct. Cls., 135; 5 Comp. 
 Dec, 514; and 9 Comp. Dec, 5, noted under 
 sec. 1422, R. S., "Transportation may be 
 waived.") 
 
 In the Katzer case, above noted, it was fur- 
 ther held that the Secretary's direction to the 
 officer to proceed at his own expense did not 
 necessarily mean that his acceptance of the 
 office would be upon the condition that the 
 Government would not be expected or required 
 to bear his mileage; that under section 1566, 
 Re\dsed Statutes, as amended, an officer must 
 travel at his own expense to be entitled to the 
 statutory allowance of mileage when traveling 
 from point to point within the United States; 
 that in charging the officer to travel to Newport 
 at his own expense the Secretary did what the 
 law required as a condition to receiving any 
 travel allowance, and it is more reasonable to 
 ascribe that purpose to the Secretary's order 
 than it is to adopt the \dew that the Secretary's 
 direction constituted an illegal condition. 
 
 Travel must be performed under or- 
 ders. — There is no act of Congress or Na\y 
 regulation authorizing the payment of traveling 
 expenses of an officer while traveling in the 
 interests of the serAdce unless by order of an 
 officer having the authority to make such order. 
 (Gove V. U. S., 49 Ct. Cls., 251.) 
 
 Travel required by oflicer's delin- 
 quency. — A boatswain in the Navy was absent 
 from his vessel when she sailed; he was ordered 
 by the commander of the fleet to take passage 
 on a steamer at his own expense and rejoin his 
 ship ; he claimed mileage for such travel. Held, 
 that claim must be denied. Mileage is a form 
 of reimbursement, and "public business" is the 
 foundation on which it rests. If private de- 
 linquency and not public business was the 
 cause of the travel, the officer disbursed nothing 
 for the Government. In such case the com- 
 manding officer could not make the Govern- 
 ment liable for mileage by ordering the officer 
 to rejoin his ship. (Perrimond v. U. S., 19 
 Ct. Cls., 509.) 
 
 The right of an officer to mileage depends 
 upon his haA-ing traveled upon public business. 
 Ordinarly it is for his commanding officer to 
 determine whether public business required it. 
 If he be delinquent and ordered to travel at 
 his own expense, he can not recover mileage. 
 (Hannum v. U. S., 19 Ct. Cls., 516.) 
 
 Wording of order not controlling as to 
 character of travel. — The question being pre- 
 sented whether travel performed by an officer 
 of the Navy, under orders, was on public busi- 
 ness, held, that the rule is well settled that the 
 terms of an order given for any pinpose can not 
 determine the character of the travel or the 
 ser\dce performed, but that the question must 
 be determined from the particular facts in each 
 case. (McCauley v. U. S., 52 Ct. Cls., 105, 
 citing Curry v. U. S., 47 Ct. Cls., 393, 398; 
 McGovern v. U. S., 36 Ct. Cls., 63; Leach v. 
 U. S., 44 Ct. Cls., 132; and Dovle v. U. S., 46 
 Ct. Cls., 181.) 
 
 Mileage allowed for shortest usually 
 traveled route. — ^An officer is ordinarily 
 bound to travel by the shortest usually traveled 
 route, but not by an extraordinary and unusual 
 route because it is the shortest. (Hannum v. 
 U. S., 19 Ct. Cls., 516.) 
 
 Mileage should not be computed by tracing 
 a direct route upon a chart, but by ascertaining 
 the distance of the shortest route of ordinary 
 travel. (DuBose v. U. S., 19 Ct. Cls., 514.) 
 
 If public business was an element in an 
 officer's circuity of route, he should recover 
 mileage therefor, under the act of June 30, 1876 
 (19 Stat., 65); if it was not, the Government is 
 not answerable for the needless distance. 
 (DuBose V. U. S., 19 Ct. Cls., 514.) 
 
 An order requiring an officer to leave for his 
 station before a designated date does not author- 
 ize him to travel by a circuitous route if other 
 means o ffer prior to the appointed date . (Crosby 
 i;. U. S., 22 Ct. Cls., 131.) 
 
 By the Re^vised Statutes, section 1566, as 
 modified by the act of June 30, 1876 (19 Stat., 
 65), mileage is allowed to naval officers. When 
 the choice of the route is left to the discretion 
 of the officer, his mileage should be calculated 
 by the shortest usually traveled route, regard- 
 less of the distance actually traveled, unless 
 some good reason be shown for the deviation. 
 fCrosby v. U. S., 22 Ct. Cls., 131.) 
 
 Travel performed not in conforrmty 
 with orders. — When an officer does not travel 
 by the most direct route, or being ordered to 
 travel by one, is compelled to travel by another. 
 
 845 
 
Sec. 1567. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 he must bring to the a'^counting oflicers the 
 authority or ratification of the Navy Depart- 
 ment; neglecting to do so, he must establish his 
 rights judiciallv. fHannum v. U. S., 19 Ct. 
 Cls., 516.) 
 
 An officer at a foreign station receives an 
 order stating that his resignation is accepted to 
 take effect on his "arrival in the United 
 States," and directing him to proceed to New 
 York and report by letter the dale of his arrival. 
 The officer travels by another route, entering 
 the United States at San Francisco; he reports 
 the reasons for so doing, and the Secretary ap- 
 proves his action and orders that his resignation 
 take effect the date of his arrival in New York. 
 Held, that where a naval officer satisfies the 
 Secretary of the Na^^ that the route traveled 
 by him was proper, admitting the circum- 
 sfances, ratification was as effective as ante- 
 cedent authority. (Allerdice v. U. S., 19 Ct. 
 Cls., 511.) 
 
 Permission given by an admiral on a foreign 
 station to an officer to return home by a mer- 
 chantman at his own cost, instead of by a ship 
 of war as directed by the Navy Department 
 does not constitute the travel as upon public 
 business. (Pendleton v. U. S., 21 Ct. Cls., 5.) 
 
 Where a naval officer did not travel home in 
 the manner directed by the department, and 
 his action has not been ratified or approved, an 
 informal permission by his immediate com- 
 manding officer to return in another manner 
 does not alter the legal situation of his claim 
 for mileage. (Pendleton v. U. S., 21 Ct. Cls., 5.) 
 
 Where a naval officer under orders to return 
 home on a ship of war technically disobeys by 
 returning on a merchantman, he can not receive 
 mileage, though the exercise of his discretion 
 in consequence of the changed position of the 
 ship of war may have been a wise one. (Pen- 
 dleton v. U. S., 21 Ct. Cls., 5.) 
 
 Effect of change in la-w while travel 
 being performed. — The claim of a naval 
 officer for his expenses when traveling under 
 orders rests, not upon contract with the Govern- 
 ment, but upon acts of Congress; and when part 
 of such a journey is performed when one statute 
 is in force, and the remainder after another 
 statute takes effect, providing a different rate 
 of compensation, the compensation for each 
 part of the journey is to be at the rate provided 
 by the statute in force when the traveling was 
 done. U. S. v. McDonald, 128 U. S., 471.) 
 
 Who are "officers" within raeaning of 
 mileage laws.^ — ^See note above, under act 
 of 1S74 repealed only in part by act of 1876." 
 
 A paymaster's clerk appointed by a paymaster 
 in the Navy, although his appointment is in- 
 dorsed with the approval of the Secretary of the 
 Navy, is not an officer of the Navy within the 
 meaning of the statute of June 30, 1876, because 
 there is no statute authorizing the Secretary of 
 the Navy to appoint a paymaster's clerk or 
 requiring his approval of such an appointment ; 
 
 and the regulations of the Navy in force at the 
 time did not require any such appointment or 
 approval for the holding of the position. There- 
 fore a paymaster's clerk was not an officer, 
 either appointed by the President or under the 
 authority of any law vesting such appointment 
 in the head of a department; and was not enti- 
 tled to allowance for mileage under the act of 
 1876, notwithstanding that'the word "officer" 
 might be construed in a more popular sense as 
 embracing such clerk in other connections. 
 (U. S. V. Mouat, 124 U. S., 303; see also note 
 to sec. 1386, R. S.) 
 
 A paymaster's clerk (prior to the act of Mar. 
 3, 1915, noted under sec. 1386, R. S.), was not 
 an "officer of the Navy" entitled to mileage 
 within the meaning of the act of March 3, 1901 
 (31 Stat. , 1029). A regulation of the Navy De- 
 partment vesting the appointment of such 
 clerks in the Secretaryof the Navy was not 
 sufficient to change their status so as to bring 
 them within the terms of said act. Such regu- 
 lation was not a law of Congress within the 
 meaning of the Constitution relating to appoint- 
 ment of officers, and heads of departments can 
 not confer upon themselves authority to ap- 
 point officers of the United States by mere regu- 
 lations. (Ashton V. U. S., 51 Ct. Cls., 65; dis- 
 tinguishing Katzer ■?;. U. S., 49 Ct. Cls., 294.) 
 
 Under the act of June 24, 1910 (36 Stat., 606), 
 a paymaster's clerk, "while holding appoint- 
 ment in accordance with law, " was given the 
 same pay and allowances as warrant officers of 
 like length of service in the Navy, Under this 
 act it is not necessary to determine whether a 
 paymaster's clerk was an officer of the Navy 
 ■within the meaning of the mileage law of 
 March 3, 1901, as said act of 1910 prescribes 
 what the pay and allowances or emolimients of 
 paymaster's clerks shall be. If an act provided 
 that clerks in the office of the Auditor for the 
 War Department should receive the same pay 
 and allowances as warrant officers in the Navy, 
 it would not be necessary to inquire whether 
 the clerks were officers of the Navy, any more 
 than it would be supposed that because the 
 Navy personnel act of March 3, 1899, assimi- 
 lated the pay of officers in the Navy to that of 
 officers of con-esponding rank in the Army they 
 had to become officers of the Army. It fol- 
 lows that, under the act of 1910, paymasters' 
 clerks became entitled to mileage as allowed 
 warrant officers by the act of March 3, 1901. 
 (Katzer v. U. S., 52 Ct. Cls., 32.) 
 
 A mate in the Navy is not an officer of the 
 United States within the meaning of the decis- 
 ion of the Supreme Court in the case of Mouat v. 
 United States (124 U. S., 303, 307), and is not 
 entitled to mileage. Money paid such mate 
 for mileage was received by him in violation of 
 law and may be recovered by the United 
 States on a counterclaim. (Baxter v. U. S., 
 32 Ct. Cls., 75; see also note to sec. 1408, R. S.) 
 
 Sec. 1567. [Officers serving as store-keepers on foreign stations.] — Officers 
 who are ordered to take charge of naval stores for foreign squadrons, in the 
 place of naval store-keepers, shall be entitled to receive, while so employed, the 
 shore-duty pay of their grades; and when the same is less than fifteen hundred 
 dollars a year, they may be allowed compensation, including such shore-duty 
 
 846 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1569. 
 
 pay, at a rate not exceeding fifteen hundred doDars a year. — (17 June, 1844, c. 
 107, s. 1, V. 5, pp. 700, 701. 
 
 See sections 1413 and 1438, Revised Statutes. 
 
 Sec. 1668. [Civilians, store-keepers on foreign stations.] — Civilians ap- 
 pointed as store-keepers on foreign stations shall receive compensation for such 
 services, at a rate not exceeding fifteen hundred dollars a year. — (17 June, 1844, 
 c. 107, s. 1, V. 5, pp. 700, 701. 3 Mar., 1847, c. 48, s. 3, v. 9, pp. 172, 173.) 
 
 See sections 1414 and 1438, Revised Statutes. 
 
 Sec. 1569. [Pay of enlisted men. Superseded.] 
 
 This section provided as follows: "Sec. 
 1569. Tlje pay to be allowed to petty officers, 
 excepting mates, and the pay and bounty upon 
 enlistment of seamen, ordinary seamen, fire- 
 men, and coal-heavers, in the naval service, 
 shall be fixed by the President: Provided, 
 That the whole sum to be given for the whole 
 pay aforesaid, and for the pay of officers, and for 
 the said bounties upon enlistments shall not 
 exceed, for any one year, the amount which 
 mav, in such year, be appropriated for such 
 pui-poses."— (18 Apr., 1814, c. 84, s. l,v. 3, p. 
 136. 3 Mar., 1847, c. 48, s. 4, v. 9, p. 173. 1 
 July, 1864, c. 201, s. 4, v. 13, p. 342. 3 Mar., 
 1865, c. 124, 8. 2, V. 13, p. 539.) 
 
 It was amended by act of March 3, 1899, 
 section 16 (30 Stat., 1008), quoted under section 
 1573, Re\T.sed Statutes, fixing increased pay of 
 enlisted men for continuous service in the Na\'y. 
 See decisions noted under section 1573 relating 
 to continuous-service pay, and honorable- 
 discharge gratuity. 
 
 It was superseded by the following pro- 
 Aisions of the naval appropriation act. May 13, 
 1908 (35 Stat., 128): 
 
 "The pay of all active and retired enlisted 
 men of the Navy is hereby increased ten per 
 centum: * * * all pay herein provided 
 shall remain in force until changed by act of 
 Congress. Nothing herein shall be construed 
 so as to reduce the pay or allowances now au- 
 thorized by law for any * -x- * enlisted 
 man of the active or retired lists of the Na\'y, 
 and all laws inconsistent with this pro\'ision 
 are hereby repealed." 
 
 Other changes were made by the follow- 
 ing statutes: 
 
 Hospital Corps. — "* * * the Hospital 
 Coi-ps of the United States Na^y shall consist of 
 the following grades and ratings: * * * en- 
 listed men classified as chief pharmacists' mates 
 pharmacists' mates, first class; pharmacists' 
 mates, second class; pharmacists' mates, third 
 class; hospital apprentices, first class; and 
 hospital apprentices, second class; such clas- 
 sifications in enlisted ratings to correspond re- 
 spectively to the enlisted ratings, seamen 
 branch, of chief petty officers; petty officers, 
 first class; petty officers, second class; petty 
 officers, third class; seamen, first class; and 
 seamen, second class." (Act Aug. 29, 1916, 39 
 Stat., 572, superseding prior laws relating to the 
 Hospital Corps.) 
 
 "* * * the pay, allowances, and emolu- 
 ments of the enlisted men of the Hospital Corps 
 shall be the same as are now, or may hereafter 
 
 be, allowed for respective corresponding ratings, 
 except the rating of turret captain of the first 
 class in the seaman branch of the Navy: Pro- 
 vided, That the pay of the rating of the chief 
 pharmacist's mate shall be the same as 
 that now allowed for the existing rating of 
 hospital steward." (Act Aug. 29, 1916, 39 
 Stat., 573.) It had pre^•iously been pro\'ided 
 by act of May 13, 1908 (35 Stat., 146), that "the 
 pay of enlisted men of the Hospital Corps shall 
 be the same as that pro\-ided for the correspond- 
 ing ratings of the seaman branch and other staff 
 corps of the Na^y"; and by act of June 17, 
 1898 (30 Stat., 474, 475), that "the pay of hos- 
 pital stewards shall be sixty dollars a month, 
 the pay of hospital apprentices (first class) 
 thirty dollars a month, and the pay of hospital 
 apprentices twenty dollars a month, with the 
 increase on account of length of ser%ice as is 
 now or may hereafter be allowed by law to other 
 enlisted men in the Na^"v^" 
 
 The effect of the act 6i May 13, 1908, was to 
 allow enlisted men of the Hospital Corps the 
 same rates of pay as allowed other enlisted naen 
 of corresponding ratings under Executive 
 orders issued pursuant to section 1569, Re\d8ed 
 Statutes; but this did not entitle hospital 
 stewards to the pay of the rating of chief petty 
 officer from the date of said act, but only from 
 the date that such rating was conferred upon 
 him. (17Comp. Dec, 452. By a clause in the 
 naval appropriation act of August 22, 1912, the 
 Auditor for the Navy Department was directed 
 to allow payments which had been made to 
 hospital stewards who were granted permanent 
 appointments as of May 13, 1908, and which 
 payments had been disallowed pursuant to the 
 comptroller's decision last cited.) 
 
 Ratings changed. — "That the designation of 
 the ratings of coal passer be changed to fireman, 
 third class, and that of ordinary seaman 
 to seaman, second class, without change 
 of pay; and that the Bureau of Na\igation be 
 authorized under rules established for the ad- 
 vancement of other enlisted men, to advance 
 printers to the ratings of printer, first class, and 
 chief printer, which ratings are hereby au- 
 thorized with same pay and increases allowed 
 to yeomen, first class, and chief yeomen, re- 
 spectively: And provided further, That the 
 rating of storekeeper is hereby established in 
 the artificer branch with the f"ollo\ving rates of 
 pay per month: Chief petty officer, $50; petty 
 officer, first class, $40; petty officer, second 
 class, S35: petty officer, third class, §30, subject 
 to such increases of pay and allowances as are 
 
 847 
 
Sec. 1569. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 or may hereafter be authorized by law for the 
 enlisted men of the Navy." (Act Aug. 29, 
 19 K), 39 Stat., 575.) 
 
 Naval Filling Corps — "The enlisted person- 
 nel of the Naval Flj-ing Corps ahall be dis- 
 tributed by the Secretary of the Na\'y in the 
 various ratinjjs as now ol)tain in the Navy in so 
 far as suoli ratings are applicable to duties con- 
 nected with aircraft." (Act Aug. 29, 1916, 39 
 Stat., 585, 586.) 
 
 " * * * the enlisted men of the Naval 
 Fljdng Corps shall receive the same pay and 
 allowances that are now pro\'ided by law for 
 * * * enlisted men of the same grade or 
 rank and rating in the Navy and Marine Corps 
 detailed to duty with aircraft invoh-ing actual 
 flying." (Act Aug. 29, 1916, 39 Stat., 583.) 
 
 ((■ * * * enlisted men, while detailed 
 as student a\dators and student airmen in- 
 vohdng actually flying in aircraft, shall re- 
 ceive the same pay and allowances that are 
 now proAaded by law for * * * enlisted 
 men of the same grade or rank and rating in 
 the NaA-y detailed for dutv with aircraft." 
 (Act Aug. 29, 1916, 39 Stat., 584.) 
 
 "Hereafter enlisted men of the Navy or 
 Marine Corps, while detailed for duty in- 
 voh-ing actual flying in aircraft, shall receive 
 the pay, and the permanent additions thereto, 
 including allowances, of their rating and 
 ser\ice, or rank and serAdce, as the case may 
 be, plus fifty per centum increase thereof." 
 (Art Mar. 3", 1915, 38 Stat., 939.) 
 
 By act of July 1, 1918 (40 Stat., 718), it was 
 provided that the "allowances" of "enlisted 
 men * * * of the naval service shall in 
 no case be increased by reason of the per- 
 formance of aviation duty." 
 
 See note to section 1556, Revised Statutes, 
 under "Additional pay for special duty — 
 A\dation duty." 
 
 Naval Academy Band. — "The Naval Acad- 
 emy Band shall hereafter consist of one 
 leader, with pay and allowanotes of first lieu- 
 tenant in the Marine Corps; one second leader, 
 with a base pay of $81 per month; forty-five 
 musicians, first class, \\dth a l)ase pay of $51 
 per month; twenty-seven musicians, second 
 class, with a base pay of $44 per month; one 
 drum major, with a base pay of $57.20 per 
 month; and the said leader of the band, second 
 leader of the band, drum major of the band, 
 and the enlisted musicians of the band shall 
 be entitled to the same benefits in respect to 
 pay, emoluments, and retirement arising 
 from_ longe\aty, reenlistment, and length of 
 service as are or may hereafter become ap- 
 plicable to other officers or enlisted men of 
 the Navy." (Act July 11, 1919, 41 Stat., 
 152; modifying act of April 12, 1910, 36 Stat., 
 297.) 
 
 Under the act of April 12, 1910 (36 Stat., 
 297), i^roviding for the enlistment of the Naval 
 Academy bandsmen and giving them "the 
 sanie benefits in respect to pay, emoluments, 
 and retirement arising from longe\ity, re- 
 enlistment, and length of serWce as are or may 
 hereafter become applicable to other enlisted 
 men of the Navy," such bandsmen upon en- 
 listment are entitled to be credited with all 
 services as members of said band in comput- 
 ing continuous-service pay, such corr uta- 
 
 tion to be made as if actually enlisted and 
 discharged as provided by law in effect when 
 such ser\dce was rendered; and if citizens of 
 the United States they are entitled to the 
 additional pav j>rovided l)v General Order 
 No. 34 of November 28, 1906 (art. 1134, par. 
 7, Navy Regs., 1909), and to ten per cent 
 increase on all permanent pay as provided by 
 the act of May 13, 1908 (35 "Stat., 128). (17 
 Comp. Dec, 27.) 
 
 New rating.^ established. — "The ratings of 
 engineman, first class, engineman, serond 
 class; blacksmith, first class, blacksmith, 
 second class; coppersmith, first class, copper- 
 smith, second class; pattern maker, first class, 
 pattern maker, second class; molder, first 
 class, molder, second class; chief special 
 mechanic and special mechanic, fir^ class, 
 be, and they are hereby, established in the 
 artificer branch of the Navy with the follow- 
 ing rates of base pay per month: Engineman, 
 first class, $45; engineman, second class, $40; 
 blacksmith, first class, $65; blacksmith, second 
 class, $50; coppersmith, first class, $65; cop- 
 persmith, second class, $50; pattern maker, 
 first class, $65; pattern maker, second class, 
 $50; molder, first class, $65; molder, second 
 class, $50; chief special mechanic, $127; spe- 
 cial mechanic, first class, $80: Provided, That 
 the base pay of machinists' mates, second 
 class, and water tenders be, and it is hereby, 
 increased from $40 to $45 per month: Provided 
 further, That all the aforesaid rates of pay 
 shall be subject to such increases of pay and 
 allowances as are, or may hereafter be, au- 
 thorized by law for enlisted men of the Navy: 
 And provided further. That appointments or 
 enlistments in the said ratings may be made 
 from enlisted men in the Navy or from civil 
 life, respectively, and the qualifications of 
 candidates for any of said ratings shall be 
 determined in accordance with such regula- 
 tions as the Secretary of the Navv may pre- 
 scribe." (Act Oct. 6, 1917, 40 Stat., 397.) 
 
 Grades and ratings to be established by Sec- 
 retary. — "That hereafter the Secretary of the 
 Navy is authorized, in his discretion, to es- 
 tablish such grades and ratings as may be 
 necessary for the proper administration of 
 the enlisted personnel of the Navy and ]\larine 
 Corps." (Act June 4, 1920, 41 Stat., 836.) 
 
 Increases in pay during war. — "That com- 
 mencing June first, nineteen hundred and 
 seventeen, and continuing until not later 
 than six months after the termination of the 
 present war, all enlisted men of the Navy of 
 the United States in active service whose 
 base pay does not exceed $21 per month shall 
 receive an increase of $15 per month; those 
 whose base pay is oA'er $21 and does not exceed 
 $24 per month, an increase of $12 per month; 
 those whose base pay is over $24 and less than 
 $45 per month, an increase of $8 per month; 
 and those whose base pay is $45 or more per 
 month, an increase of $6 per month: Provided, 
 That the increases of pay herein authorized 
 shall not enter into the computation of con- 
 tinuous-serA-ice pay." (Act May 22, 1917, 
 sec. 15, 40 Stat., 87.) 
 
 "Base pay," as that term is used in the 
 act of May 22, 1917 (40 Stat., 87), relative to 
 increase in pay of enlisted men during the 
 
 848 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1569. 
 
 present war, is the fixed monthly sum to which 
 such enlisted men are respectively entitled, 
 stripped of all increases or additions thereto 
 by percentages or otherwise, and accordingly 
 does not include the ten per cent increase 
 pro\'ided in the act of May 13, 1908 (35 Stat., 
 128). (23 Comp. Dec, 677.) 
 
 War time increases temporarily continued. — 
 "The rates of pay prescribed in section 15 of 
 an act * * * approved ]\Iay 22, 1917, 
 are hereby made the permanent rates of pay 
 of the enlisted men of the Navy during their 
 present current enlistment and for those who 
 enlist or reenlist prior to July 1, 1920, for the 
 term of such enlistment or reenlistment. " 
 (Act July 11, 1919, 41 Stat., 140.) 
 
 The 10 per cent increase provided by the 
 act of May 13, 1908 (35 Stat., 128), for enlisted 
 men of the Navy, does not attach' to the in- 
 crease provided in section 15 of the act of May 
 22, 1917 (40 Stat., 87), which the act of July 
 11, 1919 (41 Stat., 140), makes a part of the 
 permanentpay of arating. (26 Comp. Dec, 143.) 
 
 Temporary increases of 1920. — By act of May 
 18, 1920, section 6 (41 Stat., 602), it was pro- 
 vided that "commencing January 1, 1920, the 
 follo\ving shall be the rate of base pay for each 
 enlisted rating: Chief petty officers mth acting 
 appointments, $99 per month; cliief petty offi- 
 cers with permanent appointments and mates, 
 $126 per month; petty officers, first class, $84 
 per month ; petty officers, second class, $72 per 
 month; petty officers, tliird class, $60 per 
 month; nonrated men, first class, $54 per month; 
 nonrated men, second class, $48 per month; 
 nonrated men, tliird class, $33 per month: Pro- 
 vided, That the base pay of firemen, first class, 
 shall be $60 per month; firemen, second class, 
 $54 per month; firemen, third class, $48 per 
 month: Provided further. That the rate of base 
 pay for each rating in the Naval Academy Band 
 shall be as follows: Second leader, with acting 
 appointment, $99 per month with permanent 
 
 appointment, $126 per month; drum major, $84 
 per month; musicians, first class, $72 per 
 month; musicians, second class, $60 per month: 
 Provided further, That the base pay of cabin 
 stewards and cabin cooks shall be $84 per 
 month; wardroom stewards and wardroom 
 cooks, $72 per month; steerage stewards and 
 steerage cooks, $72 per month; warrant officers' 
 stewards and warrant officers' cooks, $60 per 
 month; mess attendants, first class, $42 per 
 month; mess attendants, second class, $36 per 
 month; mess attendants, third class, $33 per 
 month: * * * Provided further, That the 
 rates of base pay herein fixed shall not be 
 further increased 10 per centum as authorized 
 by an act approved May 13, 1908, nor by the 
 temporary war increases as authorized by sec- 
 tion 15 of the act approved May 22, 1917, as 
 amended by the act approved July 11, 1919." 
 By section 13 of the same act (41 Stat., 604), it 
 was provided that the rates of bases pay therein 
 established for enlisted men "shall remain 
 effective until the close of the fiscal year ending 
 June 30, 1922, unless sooner amended or re- 
 pealed," and that said rates of pay "shall be 
 the rates of pay during the current enlistment 
 of all men in active service on the date of the 
 approval of this act, and for those who enlist, 
 reenlist, or extend their enlistments prior to 
 July 1, 1922, for the term of such enlistment, 
 reenlistment, or extended enlistment." It was 
 fiirther provided therein "that the increases 
 provided in this act shall not enter into the 
 computation of the retired pay of * * * 
 enlisted men who may be retired prior to 
 July 1, 1922." By section 14 of the same act 
 (41 Stat., 604), it was provided "that nothing 
 contained in this act shall operate to reduce the 
 pay or allowances of any * * * enlisted 
 man on the active or retired list: Provided, That 
 the allowances and gi-atuities now authorized 
 by existing law are not changed hereby, except 
 as otherwise specified in this act." 
 
 1. Historical note. 
 
 2. Compilation of orders issued under sec- 
 
 tion 1569. 
 
 3. Act of May 13, 1908, construed. 
 
 4. Civilians shipped on naval vessels. 
 
 5. Insular force. 
 
 6. Mates. 
 
 7. Mess attendants and cooks. 
 
 8. Additional pay for special duty, etc. 
 
 9. Longevity pay, General Order No. 34. 
 
 10. Changes in rating. 
 
 11. Commencement of pay. 
 
 12. Leave of absence. 
 
 13. Forfeiture of pay. 
 
 1. Historical note. — "Section 7 of the act 
 of March 27, 1794, first authorized the President 
 to fix tha pay which should be allowed to petty 
 officers, ordinary seamen, seamen, and marines. 
 The act of July 1, 1797, contains the same 
 authorization. The act of April 18, 1814, pro- 
 vides that the pay and bounty upon enlistment 
 of seamen, ordinary seamen, and marines shall 
 
 14. Men transferred to Fleet Naval Reserve. 
 
 15. Men furloughed without pay. 
 
 16. Men extending enlistments. 
 
 17. Retired enlisted men. 
 
 18 . Men detained after expiration of enlistment. 
 
 19. Fraudulent enlistment. 
 
 20. Mileage and transportation on discharge. 
 
 21. Clothing bounty on enlistment. 
 
 22. Deposit of savings. 
 
 23. Waiver of pay or allowances. 
 
 24. Sixty dollar bonus on discharge. 
 
 25. Attachment of pay by creditors. 
 
 26. Allotments of pay. 
 
 be fixed by the President of the United States. 
 The act of March 3, 1847, pro\ades that the pay 
 of firemen and coal heavers employed in the 
 naval service shall hereafter be fixed by the 
 President in the same manner as is now pro- 
 vided by law for the pay of other petty officers, 
 seamen." ordinary seamen, and marines." (24 
 Comp. Dec, 364, 367; hearings before the Com- 
 
 849 
 
Sec. 1569. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 mittee on Naval Affairs, TTouse of Representa- 
 tives, appropriation bill subjects, 1909, 60th 
 Cong., 1st sess.. No. 97, p. 907.) 
 
 2. Compilation of orders issued under 
 section 1569.— Prior to May 13, 1908, the pay 
 of enlisted men of the Navy was provided for 
 under section 15(59, Revised Statutes. The fol- 
 lowing is a compilation of orders issued pur- 
 suant to said section, from November 7, 1883, 
 to February 7, 1908, fixing the pay of enlisted 
 men of the United States Navy: 
 
 General Order 1 
 
 No. 310 / November 7, 1883. 
 
 The following Executive order is published 
 for the information and guidance of all con- 
 cerned. 
 
 Edward T. Nichols, 
 Acting Secretary of the Navy. 
 
 Executive Mansion, 
 Washington, D. C, November 5, 1883. 
 
 The pay of the petty officers and enlisted 
 men of the United States Navy on and after the 
 1st of January, 1884, will be as follows: 
 
 Rating. 
 
 Seamen gunners 
 
 Chief boatswains' mates 
 
 Boatswains' mates 
 
 Chief gunners' mates 
 
 Gunners' mates 
 
 Chief quartermaster 
 
 Quartermasters 
 
 Cockswains 
 
 Captains of forecastle 
 
 Captains of tops 
 
 Captains of afterguard 
 
 Quarter gunners 
 
 Carpenters' mates [see G. O. 311]. 
 
 Sailiaakers' mates 
 
 Machinists, first-class 
 
 MachLoists, second class 
 
 Machinists, third class 
 
 Blacksmiths 
 
 Armorers 
 
 Captains of hold 
 
 Ship's cooks 
 
 Ship's corporals 
 
 Ship's lamplighters 
 
 Jack-of-the^iust 
 
 Carpenter and calkers 
 
 Baymen 
 
 Seamen 
 
 Ordinary seamen 
 
 Landsmen 
 
 Bovs. 
 
 Ordinary seamen, second class (apprentices) . 
 
 Apprentices, first class 
 
 Apprentices, second class 
 
 Apprentices, third class 
 
 Firemen, first class 
 
 Firemen, second class 
 
 Coal heavers 
 
 Apothecaries 
 
 Yeomen, paymasters' 
 
 Yeomen, eqiiipment 
 
 Yeomen, engineers' 
 
 Master-at-arms 
 
 Schoolmasters \,\\ 
 
 Ship's wTiters 
 
 Ship's printers 
 
 Ship's tailors 
 
 Ship's barbers 
 
 Painters 
 
 Cabin stewards 
 
 Cabin cooks 
 
 Wardroom stewards 
 
 Wardroom cooks [see G. 0. 311] 
 
 Steerage stewards 
 
 Steerage cooks 
 
 Warrant officers' steward 
 
 Monthly 
 pay. 
 
 S34.00 
 35.00 
 30.00 
 35.00 
 30.00 
 35.00 
 30.00 
 30.00 
 30.00 
 30.00 
 27.00 
 27.00 
 40.90 
 40.00 
 70.00 
 60.00 
 50.00 
 60.00 
 45.00 
 30.00 
 35.00 
 28.00 
 25.00 
 22.00 
 25.00 
 18.00 
 24.00 
 19.00 
 16.00 
 10.00 
 15.00 
 11.00 
 10.00 
 9.00 
 35.00 
 30.00 
 22.00 
 60.00 
 60.00 
 60.00 
 60.00 
 65.00 
 45.00 
 45.00 
 40.00 
 30.00 
 30.00 
 30.00 
 37.00 
 32.00 
 37.00 
 37.00 
 25.00 
 22.00 
 24. a) 
 
 Warrant officers' cooks 
 
 Steward to commanders in chief 
 
 Cooks to commanders in chief 
 
 Cockswains to commanders in chief 
 
 Steward to commandants, navy yards 
 
 Cooks to commandants, navy yards 
 
 Cockswains to commandants, navy yards 
 
 Masters of bands 
 
 Musicians, first class 
 
 Musicians, second class 
 
 Buglers 
 
 Electricians 
 
 $20.00 
 45.00 
 40.00 
 35.00 
 45.00 
 40.00 
 35.00 
 52.00 
 32.00 
 30.00 
 33.00 
 50.00 
 
 Chester A. Arthur. 
 
 General OrderI 
 No. 311. / 
 
 November 15, 1883. 
 
 The following corrections of typograpliical 
 errors in the Executive order of November 5, 
 1883, promulgated in General Order No. 310, 
 of November 7, 1883, are hereby made, viz: 
 The pay of caqjenters' mates will read §40 
 instead of $40.90, and the pay of wardroom 
 cooks wiU read $32 instead of $37. 
 Edward T. Nichols, 
 Acting Secretary of the Navy. 
 
 November 24, 1883. 
 
 General OrderI 
 No. 312. / 
 
 On and after January 1, 1884, General Order 
 No. 208, of April 1, 1876, will be superseded, 
 and the pay of the crews of receiving ships 
 will be regulated by General Order No. 310, 
 of the Navy Department, dated November 
 7, 1883. 
 
 Wm. E. Chandler, 
 Secretary of the Navy. 
 
 November 24, 1883. 
 
 General Order! 
 No. 313, / 
 
 The rates of finisher, boiler maker, engi- 
 neer's blacksmith, armorer's mate, cooper, 
 ship's baker, and second-class painter being 
 abolished by Executive order dated Novem- 
 ber 5, 1883, and promulgated in General Order 
 No. 310, of the Navy Department, dated 
 November 7, 1883, men holding those ratings 
 in the service on December 31, 1883, will be 
 disposed of as follows, viz: Finishers serving 
 on seagoing or other vessels to be rated first- 
 class machinists; those available on recei\-ing 
 ships and in hospital to be rated second-class 
 macliinists. Boiler makers serving on sea- 
 going or other vessels to be rated second-class 
 machinists; those available on receiving ships 
 and in hospitals to be rated third-class ma- 
 cliinists. Engineer's blacksmiths and ship's 
 blacksmiths serving on seagoing or other 
 vessels to stand a competitive examination 
 as to their qualifications to perform general 
 blacksmithing work, and those found most 
 capable to be retained as blacksmiths; all 
 others to be discharged from the ser^dce, 
 giving such as are entitled thereto the same 
 benefits they would receive had they served 
 out the full term of enlistment. Armorer's 
 mates, coopers, ship's bakers, and second- 
 class painters to be disrated to landsmen, 
 
 850 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1569. 
 
 or discharged from the service should they so 
 elect. 
 
 The rates of seamen, E, F., and ordinary 
 seamen, E. F., are also abolished, and on and 
 after January 1, 1884, men for the engineer's 
 force will be enlisted as first and second class 
 firemen and coal heavers. Seamen, E. F., 
 and ordinary seamen, E. F., in the service on 
 that date will be rated first and second class 
 firemen, respectively. [See G. O. 319.] 
 
 All men discharged by tliis order are to be 
 sent to the United States by the first public 
 opportunity, if ser\'ing abroad, imless they 
 desire their discharge on the station. 
 Wm. E. Chandler, 
 Sea-etary of the Navy. 
 
 January 4, 1884. 
 
 General OrderI 
 No. 315. / 
 The rating of electrician, the pay of which 
 was fixed by Executive order of November 
 5, 1883, promulgated in General Order No. 
 310, dated November 7, 1883, is hereby abol- 
 ished. 
 
 Wm. E. Chandler, 
 Secretary of the Navy. 
 
 Mat 19, 1884. 
 
 General OrderI 
 No. 319. J 
 The closing sentence in paragi-aph 2 of Gen- 
 eral Order No. 313, of November 24, 1883, should 
 read as follows: Seamen, E. F.;_ ordinary sea- 
 men, E. F.; and landsmen serving in the en- 
 gineer's force, in the ser^dce on that date, will 
 be rated first and second class firemen and coal 
 heavers, respectively. 
 
 Wm. E. Chandler, 
 Secretary of the Navy. 
 
 General Orderj November 21, 1884. 
 
 From and after Januar>^ 1, 1885, the form of 
 honorable discharge from the naval serA-ice, 
 authorized by section 1427, ReA-ised Statutes of 
 the United States, will be the "honorable- 
 discharge and contin uous-servdce certificate." 
 
 All men (except officers' cooks, stewards, and 
 sen-ants enlisted for special ser\'ice) now ser\-- 
 ing under enlistments for three years, or who 
 may hereafter enlist for that period, shall re- 
 ceive an "honorable-discharge and continuous- 
 service certificate" at the expiration of their 
 terms of enlistment, upon the recommendation 
 of their commanding officers. 
 
 Any man holding an "honorable-discharge 
 and continuous-serA-ice certificate" who reen- 
 lists for three years, mthin three months from 
 the date of his last discharge, shall receive an 
 increase of $1 per month to the pay prescribed 
 for the rating in which he serv^es, for each con- 
 secutive reenlistment, in addition to the 
 "honorable-discharge money." 
 
 Any man holding an "honorable-discharge 
 and continuous-ser\'ice certificate" who fails to 
 reenlist within three months from date of last 
 discharge will derive no further advantages 
 therefrom. 
 
 The department directs that the records of 
 conduct and professional qualifications on the 
 
 "enlistment records" shall be a verification of 
 the recommendations for "honorable-discharge 
 and continuous-ser\'ice certificate," and here- 
 after only those shall be recommended who 
 obtain, during their terms of enlistment, a 
 general average of 4. 
 
 In order that commanding officers of vessels 
 upon which men complete their terms of enlist- 
 ment shall be informed as to the prcAdous merit 
 of said men, the original "Enlistment record" 
 (Form 12\ which accompanies an enlisted man 
 upon his first transfer, ^vill thereafter be care- 
 fully preserv'ed and accompany him upon all 
 subsequent transfers, until his term of enlist- 
 ment has been completed. This form has been 
 amended so as to show the record of conduct 
 as averaged by the commanding officer of the 
 vessel for the period for which the man has 
 served imder his command . The final averages 
 will be made by the officer under whom the 
 man is sen'ing at the time his enlistment expires 
 when about to be discharged. These "enlist- 
 ment records " must be forwarded to the Bureau 
 of Equipment and Recruiting. 
 
 In addition to the above requirements, en- 
 listed men must serve at least two years and 
 nine months of their terms in order to receive 
 an "honorable-discharge and continuous-serv- 
 ice certificate, " except in extraordinary cases, 
 which will be pro^•ided for by the depaitment 
 as they may occur. 
 
 When any man holding an "honorable- 
 discharge and continuous-service certificate'' 
 shall fail to receive a recommendation for its 
 renewal upon the expiration of Ms term of en- 
 listment, the words "Not entitled to honoral)le 
 discharge" shall be written on the line below 
 the last entry. Men so discharged will receive 
 no further pecuniary benefit from their "honor- 
 able-discharge and" continuous-servdce certifi- 
 cate, ' ' and entries of reenlistment or subsequent 
 service must not be noted thereon. 
 
 "Good-conduct badges" are special distinc- 
 tions for fidelity, zeal, and obedience, and will 
 not be granted" for the first term of enlistment 
 under 'continuous service." At the expira- 
 tion of subsequent reenlistments for three years, 
 \vithin three months from date of discharge, 
 men who hold "honorable-discharge and con- 
 tinuous-service certificates," have obtained 
 a general average of 4.5 on their condiict rec- 
 ords, and are recommended by their com- 
 manding officers, will be entitled to and receive 
 said badges. The first badge will be a medal, 
 as liitherto. Subsequent badges to be clasps, 
 Avith the name of the vessel from which given 
 engraved thereon, to be worn on ribbon above 
 medal. WTien any enlisted man shall have re- 
 ceived three such badges, under consecutive 
 reenlistments as above, he shall be enUsted as 
 a petty officer in the rating in which he is ba^t 
 qualified to serve, and shall continue to hold a 
 petty officer's rating during subsequent con- 
 tinuous reenlistments, and shall not be reduced 
 to a lower rating except by sentence of court- 
 martial. 
 
 Paragraphs 18 and 20, page 100, and para- 
 graph 22, page 101, United States Navy Regu- 
 lations, are hereby annulled. 
 
 Wm. E. Chandler, 
 Secretary of the Navy. 
 
 851 
 
Sec. 1569. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 TJ. S. Navy Regulation 1 
 Circular No. 41. j 
 
 January 8, 1885. 
 
 The following classification of petty officers 
 and enlisted men in the Navy and of noncom- 
 missioned officers, musicians, and privates in 
 the Marine Corps is herein' adopted. 
 
 Wm. *E. Chandler, 
 Secretary of the Navy. 
 
 Classification. 
 PETTY OFFICERS, FIRST CLASS. 
 
 Seaman class. 
 
 Chief boat- 
 swains' 
 mates. 
 
 Chief quarter- 
 masters. 
 
 Chief gimners' 
 mates. 
 
 Special class. 
 
 Master-at-arms. 
 
 Equipment yeo- 
 men. 
 
 Apothecaries. 
 
 Paymaster's yeo- 
 men. 
 
 Engineer's yeo- 
 men. 
 
 Ships' writers. 
 
 Schoolmasters. 
 
 Bandmasters. 
 
 Artificer 
 class. 
 
 Machinists. 
 
 Marines. 
 
 Sergeants 
 major. 
 First ser- 
 geants. 
 
 PETTY OFFICERS, SECOND CLASS. 
 
 Boatswains' 
 
 Ships' corporals. 
 
 Boilermak- 
 
 Sergeants. 
 
 mates. 
 
 Ships' coolis. 
 
 ers. 
 
 
 Quartermas- 
 
 Chiefmusicians. 
 
 Armorers. 
 
 
 ters. 
 
 
 Carpenters' 
 
 
 Gunners' 
 
 
 mates. 
 
 
 mates. 
 
 
 Black- 
 
 
 Coxswains to 
 
 
 smiths. 
 
 
 commander 
 
 
 Sailmaker's 
 
 
 in chief. 
 
 
 mates. 
 Water tend- 
 ers. 
 
 
 PETTY OFFICERS, THIRD CLASS. 
 
 Captains of 
 forecastle. 
 
 Captains of 
 maintop. 
 
 Captains of 
 foretop. 
 
 Captains of 
 mizzen top. 
 
 Captains of 
 after guard. 
 
 Coxswains. 
 
 Quarter gun- 
 ners. 
 
 Seamen gun- 
 ners. 
 
 Captains of hold. 
 
 Printers. 
 Painters. 
 Oilers. 
 
 Corporals. 
 
 SEAMEN, FIRST CLASS. 
 
 Seamen. 
 Seamen, ap- 
 • pren t ice, 
 nrst class. 
 
 LampUghters. 
 Jaeks-of-the-dust 
 Buglers. 
 Musicians, first 
 
 class. 
 TaUors. 
 Barbers. 
 
 Firemen, : Musicians. 
 
 first class. OrderUes. 
 
 Carpenters. 
 
 Calkers. 
 
 SEAMEN, SECOND CLASS. 
 
 Ordinary sea- 
 men. 
 
 Seamen, ap- 
 pren tice , 
 second class. 
 
 Baymen. 
 Musicians. 
 
 Firemen, 
 sec on d 
 class. 
 
 Privates. 
 
 SEAMEN, THIRD CLASS. 
 
 Seaman class. 
 
 Special class. 
 
 Artificer 
 class. 
 
 Marines. 
 
 Landsmen. 
 
 
 Coal heav- 
 
 
 Apprentices, 
 
 
 ers. 
 
 
 first class. 
 
 
 
 
 Apprentices, 
 
 
 
 
 second class. 
 
 
 
 
 Apprentice s. 
 
 
 
 
 third class. 
 
 
 
 
 Boys. 
 
 
 
 
 Messmen, stewards, cooks, and attendants. 
 
 General Order\ 
 No. 330. / 
 
 December 31, 1884. 
 
 The following Executive order is published 
 for the information and guidance of all con- 
 cerned. 
 
 Wm. E. Chandler, 
 Secretary of the Navy. 
 
 Executive Mansion, 
 
 December 31, 1884. 
 
 The Executive order of November 4, 1883, ia 
 hereby modified as follows: 
 
 The ratings of first, second, and third class 
 machinists are abolished, and hereafter there 
 will be no rating of machinist in the Navy, 
 with the pay of $70 a month. 
 
 New ratings are hereby establislied as follows: 
 
 Rating. 
 
 Monthly 
 pay. 
 
 BoUer maker 
 
 Sfif) 00 
 
 Water tenders 
 
 38 00 
 
 Oilers 
 
 36 00 
 
 Chief musician 
 
 36 00 
 
 
 
 Chester A. Arthur. 
 
 General Order 1 
 No. 341. / 
 
 Navy Department, 
 Washington, January 1, 1886. 
 
 General Orders Nos. 272 and 281, relating to 
 seamen gunners, are hereby modified as follows: 
 
 Hereafter seamen gunners will not be classed 
 with petty officers, but with seamen, first class, 
 and all seamen who pass through the Ordnance 
 School of Instruction at Newport and Washing- 
 ton will be rated seamen gunners, upon the 
 completion of the course, and can not be reduced 
 to a lower rating except by sentence of a court- 
 martial. 
 
 The words "qualified as seamen gunner " will 
 be written in red ink across the face of the con- 
 tinuous-service certificate of each person cjuali- 
 fied as above, and signed by the inspector of 
 ordnance of the stations at Newport and Wash- 
 ington when the course is completed, with the 
 date of its completion. 
 
 The same indorsement will be placed on the 
 continuous-seridce certificate of any enlisted 
 petty officer who may pass through the course. 
 
 All petty officers of the line, armorers, ma- 
 chinists and lamplighters employed in connec- 
 tion with electrical plant will hereafter be se- 
 lected exclusively from seamen gunners when 
 available. 
 
 852 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1569. 
 
 Men having qualified as seamen gunners can 
 reenlist as such, even if not enlisted under con- 
 tinuous-ser\ice certificate, on giving satisfac- 
 tory eAddence that they have so qualified. 
 
 The pay of seamen gunners hereafter will be 
 $26 per month. 
 
 William C. Whitney, 
 
 Secretary of the Navy. 
 
 Rating. 
 
 General Order\ 
 
 No. 346. / April 20, 1886. 
 
 Hereafter enlisted men of the Navy not under 
 instruction at Newport or Washington when 
 employed in submarine dicing will receive 
 extra compensation at the rate of $1 for each 
 hour so employed under water. Breathing 
 time and other time necessary out of water will 
 not be deducted if not exceeding 15 minutes, 
 or one-fifth of the whole time immersed. 
 
 Such compensation is to be charged to the 
 bureau for which the service is performed. 
 Wm. C. Whitney, 
 
 Secretary of the Navy. 
 
 General Order"! 
 No. 409. j 
 
 Navy Department, 
 Wasbington, February 25, 1893. 
 The following Executive order is pulilished 
 for the information and guidance of all persons 
 concerned. 
 
 B. F. Tracy, 
 Secretary of the Navy. 
 
 Executive Mansion, 
 Washington, D. C, February 25, 1893. 
 On and after the 1st day of April, 1893, the 
 pay of the pettv ofiicers and other enlisted men 
 of the Navy shall be as follows, but this order 
 shall not reduce the pay or rating of any en- 
 listed man during his present enlistment below 
 the rate or pay at which he was enlisted or in 
 which he is now serving, unless he shall be 
 reduced in rating as provided by law or regula- 
 tions: 
 
 Rating. 
 
 Chief masters-at-arms 
 
 Chief boatswains' mates -. . . 
 
 Chief gunners' mates 
 
 Chief quartermasters 
 
 Masters-at-arms, first class 
 
 Boatswains' mates, first class 
 
 Gunners' mates, first class 
 
 Quartermasters, first class 
 
 Schoolmasters 
 
 Masters-at-arms, second class 
 
 Boatswains' mates, second class. 
 
 Gunners' mates, second class 
 
 Quartermasters, second class 
 
 Masters-at-arms, tliird class 
 
 Coxswainsi 
 
 Gunners' mates, third class 
 
 Quartermasters, third class 
 
 Seamen gunners 
 
 Seamen 2 
 
 Apprentices, first class 
 
 Ordinary seamen 
 
 Apprentices, second class 
 
 Landsmen^ 
 
 Apprentices, third class 
 
 Machinists 
 
 Chief carpenters' mates 
 
 Boiler makers 
 
 Coppersmiths 
 
 Monthly 
 pay. 
 
 $65.00 
 50.00 
 50.00 
 50.00 
 40.00 
 40.00 
 40.00 
 40.00 
 40.00 
 35.00 
 35.00 
 35. 00 
 35.00 
 30.00 
 30.00 
 30.00 
 30. 00 
 26.00 
 21.00 
 21.00 
 19.00 
 15.00 
 16.00 
 9.00 
 70.00 
 50.00 
 60.00 
 50.00 
 
 Blacksmiths 
 
 Carpenters' mates, first class 
 
 Plumbers and fitters 
 
 Water tenders 
 
 Sailmakers' mates 
 
 Oilers 
 
 Carpenters' mates, second class 
 
 Printers 
 
 Painters 
 
 Carpenters' mates, third class 
 
 Firemen, first class 
 
 Firemen, second class 
 
 Shipwrights 
 
 Sailmakers 
 
 Coal passers 
 
 Bandmasters 
 
 Yeomen 
 
 Apothecaries 
 
 Writers, first class 
 
 First musicians 
 
 Writers, second class 
 
 Writers, third class 
 
 Musicians, first class 
 
 Musicians, second class 
 
 Buglers 
 
 Baymen 
 
 Ships' cooks, first class 
 
 Ships' cooks, second class 
 
 Ships' cooks, third class 
 
 Ships' cooks, fourth class 
 
 Stewards to commanders in chief. . 
 
 Stewards to commandants 
 
 Cabin stewards 
 
 Wardroom stewards 
 
 Steerage stewards 
 
 Warrant officers' stewards 
 
 Cooks to commanders in chief 
 
 Cooks to commandants 
 
 Cabin cooks 
 
 Wardroom cooks 
 
 Steerage cooks 
 
 Warrant officers' cooks 
 
 Mess attendants 
 
 Monthly 
 pay. 
 
 $.50. 00 
 40.00 
 45.00 
 38.00 
 40.00 
 36.00 
 35.00 
 35.00 
 30.00 
 30.00 
 35.00 
 30.00 
 25. 00 
 25.00 
 22.00 
 52.00 
 60.00 
 60.00 
 35.00 
 36.00 
 30.00 
 25.00 
 32.00 
 30.00 
 30. Ot) 
 18.00 
 35.00 
 30.00 
 2.5.00 
 20.00 
 45.00 
 45.00 
 37.00 
 37.00 
 25.00 
 24.00 
 40.00 
 40.00 
 32.00 
 32.00 
 22.00 
 20.00 
 16.00 
 
 1 Coxswains detailed as coxswains of steam launches or 
 as coxswains to commanders in cliief shall receive So per 
 month in addition to their pay. 
 
 2 Seamen in charge of holds shall receive $5 per month 
 in addition to their pay. 
 
 3 Landsmen assigned to duty as jacks-of-the-dust or as 
 lamplighters shall receive So per month in addition to 
 their pay. 
 
 Benj. Harrison. 
 
 General Order"! 
 No. 448. J 
 
 Navy Department, 
 Washington, D. C, June 17, 1895. 
 The following Executive order is published 
 for the information and guidance of all persons 
 concerned. 
 
 H. A. Herbert, Secretary. 
 
 Executive Mansion, 
 Washington, D. C, June 15, 1895. 
 On and after July 1, 1895, the pay of ma- 
 chinists, water tenders, oilers, and wTiters in 
 the Navy shall be as follows, but this order shall 
 not reduce the pay of any enlisted man during 
 his present enlistment below the pay at which 
 he was enlisted, or which he is now receiving: 
 
 Per month. 
 
 Chief machinists §70. 00 
 
 Machinists, first class 55. 00 
 
 Machinists, second class 40. 00 
 
 W^ater tenders 40. 00 
 
 Oilers 37.00 
 
 Writers, first class 40.00 
 
 Writers, second class 35. 00 
 
 Writers, third class. 30. 00 
 
 Grovee Cleveland. 
 
 853 
 
Sec. 1569. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 General Order"! 
 No. 467. / 
 
 Navy Department, 
 Washington, D. C, September 19, 1896. 
 
 The follovrinn: Executive order is published 
 for the information of all persons concerned. 
 W. McAdoo, Acting Secretary. 
 
 Executive Mansion, 
 Washington, D. C, September 16, 1896. 
 On and after October 1, 1896, the pay of 
 yeomen in the Navy shall be as follows, but 
 this order shall not reduce the pay of any en- 
 listed men during his present enlistment l)elow 
 tlie pay at which he was enlisted, or which he 
 is now receiving: 
 
 Per month. 
 
 Chief yeomen $60. 00 
 
 Yeomen, first class 40. 00 
 
 Yeomen, second class -• 35. 00 
 
 Yeomen, third class 30. 00 
 
 Grover Cleveland. 
 
 General OrderI 
 No. 486. 
 
 Navy Department, 
 
 Washington, April 8, 1898. 
 
 The following Executive order is published 
 for the information and guidance of all persons 
 concerned . 
 
 John D. Long, Secretary. 
 
 Executive Mansion, 
 
 Washijigton, April 8, 1898. 
 
 On and after this date, the pay of electricians 
 in the Navy shall be as follows, but this order 
 shall not reduce the pay of any enlisted man 
 during his present enlistment below the pay at 
 which he was enlisted, or which he is now 
 receiving: 
 
 Per month. 
 
 Chief eleciricians $50. 00 
 
 Electricians, first class 40. 00 
 
 Electricians, second class 35. 00 
 
 William McKinley. 
 
 General Order! 
 No. 520. / 
 
 Navy Department, 
 Washington, June 30, 1899. 
 
 The following instructions are issued gov- 
 erning (1) qualifications for instruction and 
 (2) the detail, (3) the classification and (4) 
 the rating of gun captains, and (5) the award 
 of gunnery prizes to men holding gun-cap- 
 tain's certificates. 
 
 1. Qualification. — (a) Men who have at- 
 tained special proficiency as marksmen with 
 great guns or small arms, or whose superior 
 intelligence fits them to acquire such pro- 
 ficiency, and who, by force of character and 
 ability to command, are suitable to fill the 
 ratings of gun captains. (6) No person shall 
 be detailed who is not a citizen of the United 
 States. 
 
 2. Details for instruction vAW be made 
 from the following: (a) Apprentices, first 
 class, in the la.st year of their enlistments 
 having not less than six months to serve, (ft) 
 Seamen, (c) Men and apprentices holding 
 either acting or permanent appointments 
 as coxswains or quartermasters, third class. 
 
 3. Classification. — Upon the completion of 
 the course of instruction on board the gunnery 
 training ship, the percentage attained by 
 each man shall be reported to the Bureau of 
 Navigation, which will issue gun-captain's 
 certificates in three classes, namely: 
 
 "A" certificate, to men who have attained 
 a proficiency of 90 per cent and over. 
 
 "B" certificate, to men who have attained 
 a proficiency of 75 to 90 per cent. 
 
 "C" certificate, to men who have attained 
 a proficiency of 60 to 75 per cent. 
 
 Certificates will not be issued to men whose 
 proficiency is less than 60 per cent. 
 
 4. Rating. — Apprentices, first class, and 
 seamen holding gun-captaiiis's certificates 
 shall be advanced only through the ratings 
 of coxswain and quartermaster, third class, 
 and must have not less than a 4 in signaling. 
 
 No man shall be given an acting appoint- 
 ment as a gun captain, second class, who 
 does not hold a gun-captain's certificate, and 
 petty officers, third class, holding gun-cap- 
 tain's certificates and gun captains, second 
 and first classes, shall not be promoted or 
 transferred into any other than the gun-cap- 
 tain branch. 
 
 All appointments and advancements of 
 gun captains and men holding gun-captain's 
 certificates shall be in accordance with the 
 Navy Regulations and the instructions gov- 
 erning appointments and advancements of 
 petty officers. 
 
 5. Award of prizes. — Commanding officers are 
 directed to award to men holding gun-cap- 
 tain's certificates gunnery prizes as follows: 
 
 To men holding "A" certificates, $3 per 
 month. 
 
 To men holding "B" certificates, %2 per 
 month. 
 
 To men holding "C" certificates, $1 per 
 month. 
 
 The holder of a gun-captain's certificate 
 shall be paid the award monthly, or propor- 
 tionately for a fractional part of any month 
 (computed in the same manner as pay, except 
 that he shall not be credited with this award 
 for time out of service between enlistments), 
 from date of completion of course of instruc- 
 tion; and it shall continue throughout his 
 current enlistment and each succeeding re- 
 enlistment under honorable discharge, if 
 within four months, until he shall be promoted 
 to gun captain, second class, on which date 
 the award shall cease. The award shall be 
 paid by the pay officers, on public bills, under 
 the appropriation: "Gunnery exercises — 
 Bureau of Navigation." 
 
 6. Gun captains, having been trained as 
 leading men, may be assigned, class for class, 
 to fill any vacancy in the complement of a 
 ship in the seaman branch, excepting vacan- 
 cies for gunner's mates, but their ratings shall 
 not be changed. 
 
 John D. Long, Secretary. 
 
 854 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1569. 
 
 General OrderI 
 No. 532. J 
 
 Navy Department, 
 Washington, November 24, 1899. 
 The department publishes for the informa- 
 tion of the ser\'ice the following Executive 
 order. 
 
 John D. Long, Secretary. 
 
 Executive Mansion, 
 Washington, D. C, November 4, 1899. 
 On and after November 4, 1899, petty officers 
 of the Navy, performing duty which deprives 
 them of quarters, and their rations or commu- 
 tation thereof, shall receive $9 per month in 
 addition to the pay of their rating. 
 
 William McKinley. 
 
 Rating. 
 
 General Order"! 
 No. 552. / 
 
 Navy Department, 
 Washington, June 28, 1900. 
 The following Executive order is published 
 for the information and guidance of all persons 
 concerned. 
 
 John D. Long, Secretary. 
 
 Executive Mansion, 
 
 Washington, June 27, 1900. 
 
 On and after the 1st day of July, 1900, the 
 classification and pay of the rating of elec- 
 tricians shall be as follows, but this order shall 
 not reduce the pay of any enUsted man during 
 his present enUstment below the pay at which 
 he was enlisted, or which he is now receiving: 
 
 Per month. 
 
 Electrician, third class $30. 00 
 
 Electrician, second class 40. 00 
 
 Electrician, first class 50. 00 
 
 Chief electrician 60. 00 
 
 William McKinley. 
 
 General Order"! 
 No. 20. J 
 
 Navy Department, 
 Washington, January 1, 1901. 
 By authority of the President the depart- 
 ment publishes the rates and pay of the en- 
 listed men of the Navy as follows, but this order 
 shall not reduce the pay or rating of any en- 
 listed man during his present enUstment below 
 the rate or pay at which he was enhsted or in 
 which he is now ser\'ing, unless he shall be 
 reduced in rating as provided by law or regu- 
 lation. 
 
 John D. Long, Secretary. 
 
 Executive order. 
 
 Jan. 1,1901. 
 
 Rating. 
 
 Chief master-at-arms 
 
 Chief boatswains' mates 
 
 Chie f gimne.rs' mates 
 
 Chief gun captains 
 
 Chief quartermasters 
 
 Master-at-arms, first class 
 
 Boatswains' mates, first class 
 Gimners' mates, first class — 
 Gun captains, first class 
 
 Month! }• 
 pay. 
 
 $G5. 00 
 50.00 
 50.00 
 50.00 
 50.00 
 40.00 
 40.00 
 40.00 
 40.00 
 
 Quartermasters, first class. 
 
 Master-at-arms, second class 
 
 Boatswains' mates, second class.. . 
 
 Gimners' mates, second class 
 
 Gun captams, second class 
 
 Quartermasters, second class 
 
 Master-at-arms, tliird class 
 
 Coxswains 
 
 Gunners' mates, third class 
 
 Quartermasters, third class 
 
 Seamen gunners 
 
 Seamen 
 
 Apprentices, first class 
 
 Ordinary seamen 
 
 Apprentices, second class 
 
 Landsmen 
 
 Apprentices, third class 
 
 Chief machinists 
 
 Chief electricians 
 
 Chiief carpenters' mates 
 
 Boilermalcers 
 
 Machinists, first class 
 
 Electricians, first class 
 
 Coopersmiths 
 
 Blacksmiths 
 
 Plumbers and fitters 
 
 Sailmakers' mates 
 
 Carpenters' mates, first class 
 
 Water tenders 
 
 Machinists, second class 
 
 Electricians, second class 
 
 Oilers 
 
 Carpenters' mates, second class — 
 
 Printers 
 
 Carpenters' mates, third class 
 
 Electricians, tliird class 
 
 Painters 
 
 Firemen, first class 
 
 Firemen, second class 
 
 Sliipwrights 
 
 Coal passers 
 
 Chief yeomen 
 
 Hospital stewards 
 
 Bandmasters 
 
 Yeomen, first class 
 
 First musicians 
 
 Yeoman, second class 
 
 Yeomen, tiiird class 
 
 Hospital apprentices, first class... . 
 
 Musicians, first class 
 
 Musicians, second class 
 
 Buglars 
 
 Hospital apprentices 
 
 Stewards to commanders in chief. 
 
 Cooks to commanders in chief 
 
 Stewards to commandants 
 
 Cooks to commandants 
 
 Cabin stewards 
 
 Cabin cooks 
 
 Wardroom stewards 
 
 Wardroom cooks 
 
 Steerage stewards 
 
 Steerage cooks 
 
 Warrant officers' stewards 
 
 Warrant officers' cooks 
 
 Ships' cooks, first class 
 
 Ships' cooks, second class 
 
 Ships' cooks, third calss 
 
 Ships' cooks, fourth class 
 
 Mess attendants 
 
 Monthly 
 
 $40.00 
 35.00 
 35.00 
 35.00 
 35. 00 
 35. 00 
 30.00 
 30.00 
 30.00 
 30.00 
 26.00 
 24.00 
 21.00 
 19.00 
 15. 00 
 16.00 
 9.00 
 70.00 
 60.00 
 50.00 
 60.00 
 55.00 
 50.00 
 50.00 
 50.00 
 45.00 
 40.00 
 40.00 
 40. 00 
 40.00 
 40.00 
 37. 00 
 35.00 
 35.00 
 30.00 
 30.00 
 30.00 
 35.00 
 30.00 
 25.00 
 22.00 
 60.00 
 60.00 
 52.00 
 40.00 
 36.00 
 35.00 
 30.00 
 30.00 
 32.00 
 30.00 
 30.00 
 20.00 
 45.00 
 40.00 
 45.00 
 40.00 
 37.00 
 32.00 
 37.00 
 32.00 
 25.00 
 22.00 
 24.00 
 20.00 
 35.00 
 30.00 
 25.00 
 20.00 
 16.00 
 
 1. Petty officers of the Navy performing duty 
 which deprives them of quarters and their 
 rations, or commutation thereof, shall receive 
 .$9 per month in addition to the pay of their 
 
 rating 
 
 2. All enlisted men of the Navy shall receive 
 $5 per month, in addition to their pay, while 
 serving on board of submarine vessels of the 
 
 Navy. . r , . 
 
 3 Coxswains, detailed as coxswains of boats 
 propelled l)y machinery, or as coxswains to 
 commanders in chief, shall receive $5 per month 
 in addition to their pay. 
 
 855 
 
Sec. 1569. 
 
 Pt. -2. REVISED STATUTES. 
 
 The Navy. 
 
 4. Seamen in charge of holds shall receive $5 
 per month in addition to their pay. 
 
 5. Lanilsmen assigned to duty as jacks-of-the- 
 dust or as lamplightei-s shall receive $5 per 
 month in addition to their pay. 
 
 6. Any man who has received an honorable 
 discharge from his last term of enlistment, or 
 who has received a recommendation for reen- 
 listment upon the expiration of his last term of 
 ser\'ice of not less than three years, who reen- 
 lists for a term of four years \nthin four months 
 from the date of his discharge, shall receive an 
 increase of $1.36 per month to the pay pre- 
 scribed for the rating in which he serves, for 
 each consecutive reenlistment. 
 
 7. Twenty cents per month is deducted from 
 the pay due each officer, seaman, and marine 
 in the Navy, to be applied to the fund for naval 
 liospitals. 
 
 8. Mess attendants serving in the Navy who 
 are honorably discharged from service shall 
 receive S20 as monthly pay of their rating dur- 
 ing first reenlistment, and $24 as monthly pay 
 during second reenlistment, and during each 
 continuous reenlistment thereafter under hon- 
 orable discharge, provided that service prior to 
 January 1, 1898, shall not be computed in 
 determining increase of pay, and pro\dded 
 further, that the monthly pay of the rating of 
 mess attendants shall not exceed $24 per month, 
 exclusive of additional compensation for con- 
 tinuous service. 
 
 William McKinley. 
 
 General Order\ 
 No. 40. / 
 
 Navy Department, 
 Washington, April 8, 1901. 
 The department publishes for the informa- 
 tion and guidance of the service the folloA\dng 
 Executive order, authorizing the insular force, 
 United States Navy, and designating the rat- 
 ings and rates of pay therein; 
 
 Executive Mansion, April 5, 1901. 
 
 The Secretary of the Navy is authorized to 
 enlist in the insular force. United States Na\'y, 
 which is hereby established, not to exceed 
 500 Filipinos in the following ratings and at 
 the rates of pay indicated; 
 
 Insular force, United States Navy. 
 
 Rates. 
 
 Monthly 
 pay. 
 
 Native coxswaias 
 
 $15.00 
 12.00 
 10 00 
 
 Native seamen 
 
 Native ordinary seamen 
 
 Native machinists, first class 
 
 28 00 
 
 Native machinists, second class 
 
 20 00 
 
 Native firemen, first class. 
 
 18. CO 
 15 00 
 
 Native firemen, second class 
 
 Native coal passers 
 
 11.00 
 
 15.00 
 
 13.00 
 
 8.00 
 
 Native .stewards 
 
 Native cooks 
 
 Native mess attendants 
 
 
 William McKinley. 
 John D. Long, Secretary. 
 
 General Order"! 
 No. 61. / 
 
 Navy Department, 
 Washington, October 17, 1901. 
 The following Executive order is published 
 for the information and guidance of the service: 
 
 On and after January 1, 1902, the following 
 ratings and pay per month are established for 
 the petty officers and other enlisted men of the 
 commissary branch of the United States Navy: 
 
 Chief commissary steward 
 
 Commissary steward , 
 
 Ship's cook, first class 
 
 Ship's cook, second class. 
 
 Ship's cook, tliird class 
 
 Ship's cook, fourth class. . . 
 
 Baker, first class 
 
 Baker, second class 
 
 $70.00 
 60.00 
 55.00 
 40.00 
 30.00 
 25.00 
 45.00 
 35.00 
 
 Landsmen detailed as crew messmen shall, 
 while so acting, except when assigned as re- 
 liefs during the temporary absence of the re- 
 giilar crew messmen, receive extra compensa- 
 tion at the rate of $5 per month. 
 
 (Signed) Theodore Roosevelt. 
 
 John D. Long, Secretary. 
 
 General OrderI 
 No. 69. / 
 
 Navy Department, 
 Washington, December 2, 1901. 
 The following Executive order is published 
 for the information and guidance of the naval 
 service: 
 
 executive order. 
 
 White House, November 26, 1901. 
 From and after January 1, 1902, all en- 
 listed men of the Navy will be allowed 75 
 cents per month in addition to the pay of 
 their ratings for each good conduct medal, 
 pin, or bar issued for services terminating 
 after December 31, 1901. 
 
 Theodore Roosevelt. 
 John D. Long, Secretary. 
 
 General Order"! 
 No. 70. 
 
 Navy Department, 
 Washington, Decembers, 1901. 
 The following Executive order is published 
 for the information and guidance of the naval 
 service: 
 
 White House, December 3, 1901. 
 From and after January 1, 1902, each en- 
 listed man of the Navy who holds a certificate 
 as a graduate from the Petty Officers' School 
 of Instruction, Naval Training Station, New- 
 port, R. I., shall receive $2 per month in 
 addition to the pay of his rating. 
 
 Theodore Roosevelt. 
 John D. Long, Secretary. 
 
 856 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1569. 
 
 General Order! 
 No. 73. / 
 
 Navy Department, 
 Washington, December 11, 1901. 
 The department publishes for the informa- 
 tion and guidance of the service the following 
 Executive order: 
 
 White House, December 9, 1901. 
 From and after January 1, 1902, the classi- 
 fication and monthly pay of mess attendants 
 in the U. S. Navy shall be as follows: 
 
 Mess attendants, first class $24.00 
 
 Mess attendants, second class 20.00 
 
 Mess attendants, third class 16.00 
 
 T. Roosevelt. 
 
 John D. Long, Secretary. 
 
 General OrderI 
 No. 76. / 
 
 Navy Department, 
 Washington, December 26, 1901 . 
 Paragi-aph 8 of General Order No. 20, dated 
 January 1, 1901, is hereby rescinded, and pay 
 officers are authorized to check all amounts 
 which have been credited to mess attendants 
 in excess of $16, in compliance with the pro- 
 visions of that paragraph. This order does 
 not apply to the $1.36 per month allowed by 
 law for consecutive reenlistments. 
 
 All mess attendants now in the service 
 shall be rated mess attendants, third class, 
 on January 1, 1902. 
 
 John D. Long, Secretary. 
 
 Generai, OrderI 
 No. 79. / 
 
 Navy Department, 
 Washington, January 7, 1902. 
 
 The following Executive order, modifying 
 General Order No. 61 of October 17, 1901, is 
 published for the information and guidance 
 of the service: 
 
 White House, 
 Washington, January 7, 1902. 
 
 Executive order, dated October 15, 1901, 
 establishing ratings and pay for enlisted men 
 of the commissary branch of the U. S. Navy, 
 is so far modified as to change the first word 
 in the footnote from "Landsmen" to "En- 
 listed men." 
 
 Theodore Roosevelt. 
 
 John D. Long, Secretary. 
 
 General Order\ 
 No. 91. J 
 
 Navy Department, 
 Washington, June 25, 1902. 
 
 The following Executive order, affecting 
 General Orders Nos. 69 and 70, is published 
 
 for the information and guidance of the serv- 
 ice: 
 
 White House, June 24, 1902. 
 
 Executive order of November 26, 1901, 
 relative to additional compensation for en- 
 listed men of the Navy holding good-conduct 
 medals, pins, or bars, and Executive order of 
 December 3, 1901, relative to additional 
 compensation for enlisted men holding cer- 
 tificates as graduates from the petty officers' 
 School of Instruction, are hereby revoked, 
 to take effect July 1, 1902, from which date 
 the following substitutes shall take effect: 
 
 Each enlisted man of the Navy shall receive 
 75 cents per month, in addition to the pay of 
 his rating, for each good-conduct medal, pin, 
 or bar which he may heretofore have been, or 
 shall hereafter l)e, awarded. 
 
 Each petty officer holding a certificate of 
 graduation from the Petty Officers' School of 
 Instruction, or as gun captain, or both, shall 
 receive $2 a month in addition to the pay of 
 his rating. 
 
 Theodore Roosevelt. 
 
 William H. Moody, Secretary. 
 
 Gener.\l Order 
 No. 94. 
 
 Navy Department, 
 Washington, July 8, 1902. 
 
 The Department publishes for the guidance 
 of the service the information that the naval 
 appropriation bill, approved July 1, 1902, for 
 the fiscal year 1903, provides for outfits at $45 
 each, for naval apprentices, hospital appren- 
 tices, landsmen under training for seamen, and 
 all other enlisted men of the Navy, on first 
 enlistment. 
 
 William H. Moody, Secretary. 
 
 General Order"! 
 No. 101. i 
 
 Navy Dep.^rtment, 
 Washington, August I, 1902. 
 
 The following Executive order, supplement- 
 ing General Order No. 91, dated June 25, 1902, 
 is published for the information and guidance 
 of the service: 
 
 White House, August 1, 1902. 
 
 From and after July 1, 1902, each enlisted 
 man that has been rated seaman gunner prior 
 to April 1, 1902, or that holds a certificate of 
 graduation from the petty officers' school, sea- 
 man gunner class, shall receive $2 per month 
 in addition to the pay of his rating during 
 current and subsequent enlistments. 
 
 Theodore Roosevelt. 
 
 Chas. H. Darling, 
 
 Acting Secretary. 
 
 857 
 
Sec. 1569. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 General Ordeu'1 
 No. 102. / 
 
 N.WY Dep.\rtment, 
 Washington, August 6, 1902. 
 
 1. The followius: Executive order is puli- 
 lished for the iuformatiou and guidance of the 
 ser\dce: 
 
 White House, 
 Washington, D. C, August 4, 1902. 
 
 From and after this date the following ratings 
 and rates of pay for same are established in the 
 naval service: 
 
 Ship litter, first class, $55. 
 
 Ship litter, second class, $40. 
 
 Men enlisted in these ratings to be petty 
 officers, first or second class, respectively. 
 
 Theodore Roosevelt. 
 
 2. The complements of all vessels of the first 
 and second rate are amended so as to include 
 one ship fitter, first class, and one ship fitter, 
 second class. Vessels of the third rate are al- 
 lowed one ship fitter, second class. 
 
 3. The specialty work on the rating badge 
 for ship fitter shall be the same as that for 
 blacksmiths. 
 
 Ch.\s. H. Darling, 
 
 Acting Secretary. 
 
 General Order! 
 No. 10.3. / 
 
 Navy Department, 
 
 Washington, August 18, 1902. 
 The following Executive order is published 
 for the information and guidance of the service: 
 
 White House, August, 13, 1902. 
 From and after this date the following ratings 
 and rates of pay per month are established : 
 
 Painters, first calss $40. 00 
 
 Painters, second class 35. 00 
 
 Painters, third class 30. 00 
 
 Stewards, for commander in chief or 
 
 commandants 60. 00 
 
 Cooks, for commander in chief or com- 
 mandants 50. 00 
 
 Cabin and wardroom stewards 50. 00 
 
 Cabin and wardroom cooks 45. 00 
 
 Steerage and warrant officers' stewards. 35. 00 
 Steerage and warrant officers' cooks... 30. 00 
 
 Coopersmiths 55. 00 
 
 Boiler makers 65. 00 
 
 Theodore Roosevelt. 
 
 All painters now in the service will be rated 
 painters, third class. All painters that have 
 served two years satisfactorily in that rating 
 with an average of at least 4 in proficiency in 
 rating, conduct, and sobriety, and establish 
 their qualifications by a practical examination, 
 may be rated painters, second class. 
 
 Painters, second class, -will be required to 
 serve one year in that rating, with an average 
 of at least 4 in proficiency in rating, conduct, 
 and sobriety, before being rated painters, first 
 class. 
 
 Chas. H. Darling, 
 
 Acting Secretary. 
 
 General Order"! 
 No. 108. / 
 
 Navy Department, 
 Washington, September 11, 1902. 
 The following Executive order is published 
 for the information and guidance of the service. 
 
 White Hou.'^e, September 4, 1902. 
 Executive orders of June 25, 1902, and 
 August 4, 1902, are hereby rescinded, and from 
 and after July 1, 1902, every enlisted man and 
 apprentice who has been rated a seaman gun- 
 ner, or holds a gun-captain's certificate, or a 
 certificate of graduation from one or more 
 classes of the Petty Oflicers' School of Instruc- 
 tion, shall receive $2 per month in addition to 
 the pay of his rating for each such certificate, 
 viz: 
 
 Per 
 For certificate as seaman gunner, or from month. 
 
 seaman gunner class $2. 00 
 
 For certificate as gun captain, or from 
 
 gun captain class 2. 00 
 
 For certificate from petty officer class. . . 2. 00 
 
 For certificate from artificer class 2. 00 
 
 For certificate from machinist class 2. 00 
 
 For certificate from electrical class 2. 00 
 
 Every enlisted man of the Navy shall receive 
 75 cents per month, in addition to the pay of 
 his rating, for each good-conduct medal, pin, 
 or bar which he may heretofore have been or 
 shall hereafter be awarded. 
 
 Theodore Roosevelt. 
 
 All men who successfully complete, or have 
 completed, the prescribed course in any of the 
 above-mentioned classes, and have been re- 
 ported qualified, will, upon the recommenda- 
 tion of their commanding officers to the Bureau 
 of Navigation, receive certificates of gradua- 
 tion. The Bureau of Navigation will be in- 
 formed as to any men who are entitled to cer- 
 tificates as indicated above and who have not 
 yet received them. 
 
 In accordance with the provisions of the 
 above Executive order. General Order Nos. 91 
 and 101 are hereby revoked. 
 Respectfully, 
 
 William H. Moody, Secretary. 
 
 General Order! 
 No. 110. / 
 
 Navy Department, 
 Washington, D. C, October 22, 1902. 
 
 The following Executive order is published 
 for the information and guidance of the service: 
 
 White House, 
 Washington, D. C, October 20, 1902. 
 Enlisted men of the naval service regularly 
 detailed as signalmen shall receive the follow- 
 ing extra compensation in addition to the 
 monthly pay of the rating which they mav 
 hold: 
 
 Signalmen, first class $3. 00 
 
 Signalmen, second class 2. 00 
 
 Signalmen, third class 1. 00 
 
 Theodore Roosevelt. 
 
 858 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1569. 
 
 From and after the date of receipt of this 
 order all seamen, ordinary seamen, landsmen, 
 or apprentices who may be detailed as signal- 
 men will be allowed this extra compensation. 
 
 Flagships will be allowed four signalmen, 
 first class; four signalmen, second class; and 
 fom" signalmen, third class. 
 
 Vessels of the first rate will be allowed four 
 signalmen, first class, and four signalmen, sec- 
 ond class. 
 
 Vessels of the second rate will be allowed 
 fom* signalmen, first class; two signalmen, sec- 
 ond class; and two signalmen, third class. 
 
 Vessels of the third rate will be allowed 
 three signalmen, first class; one signalman, 
 second class; and two signalmen, third class. 
 
 This, however, does not increase the allowed 
 complement of any vessel as at present estab- 
 lished, but is merely an allowance to men de- 
 tailed as signalmen. 
 
 Chas. H. Darling, 
 
 Acting Secretary. 
 
 General Order"! 
 No. 130. / 
 
 Navy Department, 
 Washington, May 15, 1903. 
 Hereafter apprentices appointed as petty 
 officers, third class, of the seamen branch, 
 under article 856, Navy Regulations, shall be 
 eligible for advancement under the same rules 
 that apply to other petty officers. 
 
 Chas. H. Darling, 
 
 Acting Secretary. 
 
 General Order\ 
 No. 134. / 
 
 Navy Department, 
 Washington, June 26, 1903. 
 
 The following Executive order is published 
 for the information and guidance of the service' 
 
 White House, 
 Washington, D. C, June 26, 1^03. 
 
 All chief petty officers of the Navy whose 
 pay is not fixed by law, including chief water 
 tenders, which rating is hereby established, 
 who, on or after July 1, 1903, shall receive 
 permanent appointments after qualifying there- 
 for by passing such examination as the Sec- 
 retary of the Navy may prescribe, shall be 
 paid at the rate of |70 a month; those who 
 serve under permanent appointments issued 
 prior to said date, or under acting appoint- 
 ments, shall be paid at the rates now in force. 
 The pay of chief water tenders who hold 
 acting appointments shall be $50 a month. 
 Nothing herein contained, however, shall 
 operate to reduce the present pay of any en- 
 listed man in the Navy. 
 
 Theodore Roosevelt. 
 
 On and after July 1, 1903, permanent ap- 
 pointments will be issued by the Bureau of 
 Navigation to chief petty ofiicers in the serv- 
 ice only after the fitness of the man for pro- 
 motion shall have been shown before a board 
 consisting of three officers detailed from a 
 sMp or ships other than the one op. board of 
 
 which the candidate is serving. The exam- 
 ination shall show that the applicant is in all 
 respects fitted to fill the rating in wliich he 
 seeks a permanent appointment. Such ap- 
 pointments will entitle the holder to draw 
 pay at the rate of $70 per month. 
 
 AH persons holding permanent appoint- 
 ments as chief petty officers issued prior to 
 July 1, 1903, may qualify by passing exam- 
 ination as above. In the event of their quali- 
 fying they will be given new permanent 
 appointments by the Bureau of Navigation 
 from the date they pass their examination. 
 
 Chief petty officers who hold permanent 
 appointments issued prior to July 1, 1903, 
 and who do not qualify by examination; 
 those who reenlist under permanent appoint- 
 ments issued prior to July 1, 1903; and those 
 who have acting appointments will draw pay 
 under the present pay table until such time 
 as they qualify by examination and are given 
 permanent appointments. 
 
 When these permanent appointments are 
 presented to the pay officer for an increase in 
 pay, he will procure orders from the command- 
 ing officer upon S. and A. Form No. 22 
 (Ratings and Disratings^ to make the appro- 
 priate changes on his books. 
 
 W. H. Moody, Secretary. 
 
 General OrderI 
 No. 137. / 
 
 Navy Department, 
 Washington, July 25, 1903. 
 The following Executive order is published 
 for the information and guidance of the naval 
 service: 
 
 White House, July 25, 1903. 
 
 Enlisted men of the Navy, after having 
 qualified as gun pointers, according to stand- 
 ards of marksmanship and rules that may be 
 prescribed from time to time by the Secretary 
 of the Navy, and who are regularly detailed 
 as gun pointers by the commanding officer of 
 a vessel, shall receive monthly, in addition 
 to the pay of their respective ratings, extra 
 pay as follows: 
 
 Heavy gun pointers, first class, $10; second 
 class, $6; for the class of guns comprising those 
 of 8-inch caliber or larger. 
 
 Intermediate gun pointers, first class, $8; 
 second class, $4; for the class of guns com- 
 prising those of 4-inch to 7-inch caliber, in- 
 clusive. 
 
 Secondary gun pointers, first class. $4; 
 second class, $2; for the class of guns com- 
 prising those of 1-pounder to 3-inch caliber, 
 inclusive. 
 
 Extra pay shall be allowed a qualifred gun 
 pointer during not less than two years from and 
 after the date of his qualifying, but only while 
 he is regularly detailed as a gun pointer at a 
 gun of the class at which he qualified. 
 
 The following ratings and rates of pay per 
 month for the same are hereby established in 
 the naval ser\dce: 
 
 Chief turret captain, holding acting appoint- 
 ment as such, $G0; holding a permanent ap- 
 pointment as such, $70. 
 
 Turret captain, fii'st class, $50. 
 
 54641°— 22- 
 
 -55 
 
 859 
 
Sec. 1669. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Enlisted men of the Navy regularly detailed 
 by the commanding oflicer of a vessel as gun 
 captains, except as secondary battery guns, 
 shall receive, in addition to the pay of their 
 respective ratings, $.■> per month, which, in the 
 case of men holding certificates as gun captains 
 or of graduation from the gun-captain class, 
 petty oflicers' school, shall include the $2 per 
 month to which such certificates entitle them. 
 
 This order shall go into effect October 1, 1903. 
 
 Theodore Roosevelt. 
 
 In pursuance of the provisions of the foregoing 
 order, the following instructions will be ob- 
 served : 
 
 RULES governing EXTRA PAY TO GUN POINTERS 
 
 The standards of marksmanship entitling men 
 to extra pay as gun pointers (first and second 
 classes) of the three classes of guns (heavy, 
 intermediate, and secondary) will be an- 
 nounced by the department as soon as practi- 
 cable after the completion of the record target 
 practice to be held early in 1904. These 
 standards are subject to change yearly. 
 
 A gun pointer's "gunnery record" will be 
 his sole certificate of qualification, and the rate 
 of his extra pay as a qualified gun pointer will 
 be determined by his score at an annual record 
 target practice, signed by the chief umpire 
 detailed for the ship at that practice. 
 
 As soon as the official announcement of 
 standards of marksmanship is received, the 
 commanding officer of each vessel shall direct 
 the pay officer (using S. and A. Form No. 236, 
 "Order for extra compensation for enlisted 
 men") to credit the men that have qualified as 
 gun pointers, first or second class, with the 
 extra pay allowed them, respectively, by the 
 foregoing Executive order; and over the men's 
 names on the pay roll shall be entered in red 
 ink the abbre\aations "H. G. P., 1st CI.," "H 
 G. P., 2d CI.," "I. G. P., 1st CI.," "I. G. P ; 
 2d CI.," "S. G. P., 1st CI.," "S. G. P., 2d CI.," 
 as the case may be. Such extra pay shall be 
 allowed from the date that the vessel on which 
 the pointer qualifies completes her record 
 target practice. 
 
 A gun pointer shall receive extra pay as such 
 only during the time that he is regularly de- 
 tailed by the commanding officer of the vessel 
 as a gun pointer at a gun of a class at which he 
 has qualified; if he has qualified at more than 
 one class of gun, he shall receive only the extra 
 pay allowed for a gun of the class at which he 
 IS regularly detailed as gun pointer. 
 
 Although the standards of marksmanship are 
 subject to change yearly, a pointer that qualifies 
 at any annual record practice is entitled to the 
 corresponding extra pay for all the time during 
 the ensuing period of two years that he is regu- 
 larly detailed as a gun pointer at a gun of the 
 class at which he qualified at that practice. 
 
 A qualified gun pointer reenlisting for four 
 years within four months of his discharge, and 
 regularly stationed as a gun pointer at a gun of 
 a class at which he was qualified at the time 
 of his discharge, shall be entitled to the corre- 
 sponding extra pay during the unexpired por- 
 tion of the period of two years from the date 
 
 of (jualifying— the interval of time between the 
 date of his discharge and reenlistment to be 
 included in the period of two years. 
 
 QUALIFICATIONS AND APPOINTMENT OF TURRET 
 CAPTAINS. 
 
 The qualifications required for the duties of 
 turret captain are sufficient knowledge and 
 ability to drill the turret crews and to control 
 the fire of the guns in action in the absence of 
 the turret officer, and the mechanical knowl- 
 edge and skill necessary to overhaul all parts 
 of the turret and gun gear and keep them at all 
 times in efficient condition. 
 
 For each 10-inch, 12-incli, and 13-inch turret, 
 and for each combination of superimposed 
 turrets, one chief turret captain is allowed; 
 but a turret captain, first class, may be assigned 
 to any such turret for which no cliief turret 
 captain is available. For each 8-inch turret 
 (not superimposed) one turret captain, first 
 class, is allowed. 
 
 To fill these ratings, wholly or in part, com- 
 manding officers will select candidates that 
 appear to possess the necessary qualifications 
 from gunner's mates, seamen gunners, men 
 holding the rate of gun captain or certificate of 
 graduation from the petty officers' school, gun 
 captain class, and other intelligent men— not 
 alone of the seaman branch — of mechanical 
 bent and good promise as leading men. The 
 names of these men shall be sent to the squad- 
 ron commander, who will order their examina- 
 tion before a board of not less than three officers, 
 the majority to be turret officers if practicable, 
 to be appointed by him, none of whom shall be 
 taken from the ship to which the candidates 
 belong. Commanding officers shall nominate 
 at least two candidates for each vacancy as 
 turret captain, in order that the examination 
 may be competitive. 
 
 The candidates that pass the examination 
 will be eligible for acting appointments as 
 turret captains, first class; but no cliief petty 
 officer shall be rated a turret captain, first class, 
 against his will. Permanent appointments and 
 advancement will be governed by the same 
 regulations that apply to other petty officer 
 ratings. 
 
 EXTRA PAY FOR GUN CAPTAINS. 
 
 When the commanding officer details a petty 
 officer or other enlisted man as a gun captain he 
 shall direct the pay officer to credit him with 
 the extra pay allowed by the foregoing Execu- 
 tive order (using S. and A. Form No. 236, 
 "Order for extra compensation for enlisted 
 men"), and over the man's name on the pay 
 roll shall be entered in red ink the abbreviation 
 ' G. C." 
 
 DISCONTINUING EXTRA PAY. 
 
 When the commanding officer revokes the 
 detail of a man as a gun captain or gun pointer 
 he shall, in writing, direct the pay officer to 
 discontinue the corresponding extra pay. 
 
 William H. Moody, Secretary. 
 
 860 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1569. 
 
 General Order"! 
 Xo. 168. / 
 
 Navy Departmext, 
 Washington, September 9, 1904- 
 The following Executive order, affecting 
 General Order No. 108, is published for the 
 injformation and guidance of the service: 
 
 White House, September 5, 1904. 
 The Executive order of September 4, 1902, 
 authorizing additional pay to certain enlisted 
 men of the Navy, is hereby so far modified that 
 hereafter the date of the award of a good- 
 conduct medal, pin, or bar shall be the date 
 of the holder's discharge by reason of the ex- 
 piration of the enlistment for which the medal 
 pin, or bar is given, the allowance of 75 cents 
 per month to be reckoned from said date of 
 award: Provided, That nothing in this order 
 shall be construed to authorize any change in 
 the date of award of any good-conduct medal, 
 pin, or bar heretofore awarded, or to grant any 
 arrears of allowances on account thereof. 
 
 Theodore Roosevelt. 
 
 Paul Morton, Secretary. 
 
 General Order") 
 
 No. 186. J 
 
 Navy Department, 
 
 Washington, June 5, 1905. 
 
 The following Executive order is published 
 for the information and guidance of the service: 
 
 Any enlisted man of the Na\'y detailed to 
 perform the duties of ship's tailor on board of a 
 vessel having a complement of 600 men or more, 
 exclusive of marines, shall receive S20 per 
 month in addition to the monthly pay of his 
 rating; on a vessel having a complement of 
 from 300 to 600 men, exclusive of marines, .$15 
 per month in addition to the monthly pay of his 
 rating ; on a vessel having a complement of less 
 than 300 men, exclusive of marines, $10 per 
 month in addition to the monthly pay of his 
 rating. Any enlisted man of the Navy detailed 
 as tailor's helper on board of a vessel having a 
 complement of 600 men or more, exclusive of 
 marines, shall receive $10 per month in addi- 
 tion to the monthly pay of his rating: Pro- 
 vided, That the total pay of an enlisted man 
 detailed to perform the duties of ship's tailor 
 shall not exceed $50 per month, and of tailor's 
 helper shall not exceed $40 per month. 
 
 Theodore Roosevelt. 
 
 The White House, 
 
 June 2, 1905. 
 
 From and after .July 1, 1905, vessels having a 
 complement of 600 men or more, exclusive of 
 marines, will be allowed one ship's tailor and 
 one tailor's helper; vessels having a comple- 
 ment of less than 600 men and more than 100 
 men will be allowed one ship's tailor. 
 
 Men detailed for duty as ship's tailors, or as 
 tailor's helpers, will be assigned to the paymas- 
 ter's division and perform the duties of their 
 detail without reference to the rating held by 
 
 them. It shall be their duty to alter, when 
 necessary, Avithout expense to the enlisted men 
 of the Navy, all uniforms, caps, and clothing 
 issued by the paymaster. 
 
 The above does not increase the allowed com- 
 plement of any vessel as at present established. 
 Paul Morton, Secretary. 
 
 General Order\ 
 No. 9. / 
 
 Navy Department, 
 
 Washington, November 9, 1905. 
 
 The following Executive order is published 
 for the information and guidance of the service: 
 
 Besides the $5 per month extra pay allowed 
 them for submarine ser\'ice, enlisted men 
 ser\'ing with submarine torpedo boats, and 
 ha\'ing been reported by their commanding 
 officers to the Navy Department as qualified for 
 submarine torpedo-boat work, shall receive 
 $1 additional pay for each day during any part 
 of which they shall have been submerged in a 
 submarine torpedo boat while under way: Pro- 
 vided, however, That such further additional pay 
 shall not exceed $15 in any one calendar month. 
 Theodore Roosevelt. 
 
 The White House, November 8, 1905 
 
 Men to be eligible for recommendation by 
 their commanding officers as "qualified for 
 submarine torpedo boat work" must fulfill the 
 requirements prescribed from time to time by 
 the Bureau of Navigation. 
 
 Service on a submarine torpedo boat shall be 
 counted sea service for all purposes of rating, 
 but in examinations for permanent appoint- 
 ment petty oflicers who have served their pro- 
 bationary period wholly or in part on vessels 
 of this class will be required to show such pro- 
 ficiency in all the usual duties of their respec- 
 tive ratings as \\i\\ qualify them to serve in such 
 rating on vessels of any class. The examina- 
 tions for permanent appointment as chief petty 
 officer, called for in article 852, paragraph 2, of 
 the Navy Ptegulations, shall be conducted by 
 officers other than those on duty with sub- 
 marine torpedo boats. 
 
 Whenever a submarine torpedo boat is en- 
 gaged on duty under water, it shall be accom- 
 panied by a tender which shall be capable of 
 including comfortable accommodations for the 
 officers and men of the submarine. 
 
 Time spent by officers on duty with sub- 
 marine torpedo boats shall count as part of a 
 cruise. 
 
 Charles J. Bonaparte, Secretary. 
 
 General Order! 
 No. 31. / 
 
 Navy Department, 
 Washington, D. C, October 29, 1906. 
 
 In accordance with the act of Congress ap- 
 proved June 29, 1906, "making appropriations 
 for the naval service for the fiscal year ending 
 June 30, 1907. and for other purposes," the 
 
 861 
 
Sec. 1660. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 department directs that any man enlisting on 
 or after l)eceml»er 1, 190(), who is discharged 
 (luring tlie first six months of a first enlistment 
 for any cause other than disability incurred in 
 the line of duty shall have checked against his 
 accounts prior to discharge the cost of such 
 portion of outfit allowed on first enlistment as 
 he may have drawn. 
 
 Tkuman H. Nkwderry, 
 
 Acting Secretary. 
 
 General OrderI 
 No. 34. / 
 
 Navy Department, 
 Washington, November 28, 1906. 
 
 The following Executive order is published 
 for the information and guidance of the service: 
 To provide adequate compensation for trained 
 men, the pay now prescribed by Executive 
 order for each rating in the Navy is hereby 
 increased $5 per mouth during the second 
 period of service and a further sum of $3 per 
 month during each and every subsequent 
 period of service: Provided, That only enlisted 
 men who are citizens of the United States, and 
 whose second and subsequent periods of service 
 each follow next after service in the Navy that 
 was terminated by reason of explication of en- 
 listment, shall receive the benefits of the In- 
 creased pay named herein: Provided further. 
 That in the cases of men who are or were finally 
 discharged from the Navy by reason of expira- 
 tion of enlistment, the first enlistment on or 
 after the date of this order shall be considered 
 the second period of service which shall carry 
 with it the Increased pay provided by this 
 order, except that men discharged on recom- 
 mendations of boards of medical survey shall, 
 if they reenter the service, be given credit for 
 any previous periods of service In the Navy 
 which were terminated by reason of expiration 
 of enlistment. 
 
 Chief petty officers detailed as Instructors of 
 apprentice seamen at naval stations who qualify 
 as instructors by examination shall receive 
 hereafter, in addition to their pay, the sum of 
 $10 per month, while so detailed, such pay to 
 be considered extra pay for special duty. 
 
 Apprentice seamen detailed as apprentice 
 chief petty officers, apprentice petty officers, 
 first, second, or third class, in connection with 
 the instruction of apprentice seamen at naval 
 stations, shall receive hereafter, in addition to 
 their pay, the sum of $2.50, $2, $1.50, and $1 
 each per month, respectively, whUe so detailed, 
 such pay to be considered extra pay for special 
 duty. 
 
 Theodore Roosevelt. 
 
 The White House, 
 
 November 27, 1906. 
 
 Chief petty officers must be citizens of the 
 United States and serving under continuous 
 service in order to be eligible for exanalnation 
 for detail as instructors of apprentice seamen at 
 naval stations. They must also qualify in ac- 
 cordance with the requirements prescribed 
 from tune to time by the Bureau of Navigation. 
 
 The complement of apprentice seamen au- 
 thorized at each naval station as apprentice 
 petty officers will be four (one of each rating) 
 for each 75 apprentice seamen under trairdng 
 at the station. 
 
 G. A. Converse, 
 
 Acting Secretary. 
 
 General Order"! 
 No. 43. / 
 
 Navy Department, 
 Washington, D. C, April 6, 1907. 
 
 On and after July 1, 1907, all enlisted men of 
 the Navy shall receive, on first enlistment, 
 outfits amounting in value as follows: 
 
 Samoans and such men of the messman 
 branch as are not required to possess 
 
 complete outfits, not to exceed $20. 00 
 
 Men of the insular force, not to exceed . . 30. 00 
 All other enlisted men, not to exceed.. 60. 00 
 
 Commanding officers will direct which of the 
 above amounts is to be allowed In each case of 
 first enlistment. 
 
 Attention is called to the Uniform Regula- 
 tions, 1905, pages 53 and 54, regarding the por- 
 tions of outfits to be issued on enlistment, and 
 on transfer to cruising vessels; also to General 
 Order 31, of October 29, 1906, regarding the 
 checkage against the accounts of men dis- 
 charged during the first six months of first en- 
 listment for any cause other than disability 
 incmred in the line of duty, of the cost of such 
 portion of the allowed outfit as may have been 
 drawn. 
 
 V. H. Metcalf, Secretary. 
 
 General OrderI 
 No. 57. / 
 
 Navy Department, 
 Washington, December 9, 1907. 
 
 The follo\\T.ng Executive order Is published 
 for the information and guidance of the naval 
 service: 
 
 The White House, November 16, 1907. 
 The extra pay allowed gun pointers in 
 accordance with the Executive order of July 
 25, 1903, shall be allowed a gun pointer reg- 
 ularly detailed as a gun pointer at a gun of 
 the class at which he qualified only as long 
 as he remains qualified: Provided, This order 
 shall be construed as affecting only gun 
 pointers who qualify subsequent to the date 
 of this order. 
 
 Theodore Roosevelt. 
 
 V. H. Metcalf, Secretary. 
 
 General OrderI 
 No. 62. / 
 
 Navy Department, 
 Washington, February 7, 1908. 
 
 The following Executive order is published 
 for the information and guidance of the service: 
 
 On and after March 1, 1908, the classification 
 and pay of mess attendants in the Navy who 
 
 862 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1569. 
 
 are citizens of the United States shall be as 
 follows: 
 
 Per month. 
 
 Mess attendants, first class $30. 00 
 
 Mess attendants, second class 25. 00 
 
 Mess attendants, third class 20. 00 
 
 On and after ^larch 1, 1908, all stewards 
 and cooks in the messman branch who are 
 citizens of the United States and who hold, 
 or may receive certificates of qualification as 
 stewards or cooks, shall receive $5 per month 
 additional to the pay of their rating while 
 holding such certificate, such additional pay 
 to be of a permanent character as regular pay. 
 Theodore Roosevelt. 
 
 The White House, 
 
 January 28, 1908. 
 
 On and after March 1, 1908, all mess attend- 
 ants who are citizens of the United States 
 shall be paid in accordance with the above 
 Executive order. 
 
 Certificates of qualification heretofore or 
 hereafter issued by the Bureau of Navigation 
 shall remain in force for a period of two years 
 from their date, unless sooner revoked in the 
 discretion of the commanding officer for cause, 
 and shall be renewed by the commanding 
 officer at the expiration of each two years for 
 a similar term, provided the continued good 
 performance of duty of the steward or cook so 
 warrants. 
 
 V. H. Metcalf, Secretary. 
 
 3. Act of May 13, 1908, construed.— The 
 act of May 13, 1908 (35 Stat., 128), proA-ided 
 that "the pay of all active and retired enlisted 
 men of the Navy is hereby increased ten per 
 centum," and that '"all pay herein pro^ided 
 shall remain in force until changed by act of 
 Congress. " The 10 per cent increase pro^'ided 
 by said act of May 13, 1908, applied only to the 
 pay proper of enlisted men, or their base pay 
 anci permanent additional pay, such as addi- 
 tional pay allowed by Executive orders for con- 
 tinuous sendee, longeAity service, good-con- 
 duct medals, pins, or bars, and for graduation 
 certificates; and did not apply to their tempo- 
 rary additional pay provided by Executive 
 orders for special seridce, such as for gun point- 
 ers, messmen, coxswains of steam launches, 
 jacks-of-the-dust, etc. (14 Comp. Dec, 829.) 
 
 Nevertheless, while the increase of 10 per 
 cent allowed by the act of May 13, 1908, ap- 
 plied only to base pay and permanent addi- 
 tions thereto, the further proAdsion of said act, 
 that all pay therein provided shall continue in 
 force until changed by act of Congress, included 
 not only such base pay and permanent addi- 
 tions thereto, but also temporaiy additional 
 pay for special ser\'ice. (24 Comp. Dec, 364.) 
 
 The effect of the act of May 13, 1908, was to 
 make the pay of all enlisted men of the Navy, 
 then in force, and as increased by said act, per- 
 manent and subject to change only by legisla- 
 tion of Congress; and to prohibit any addi- 
 tional compensation for special sendees per- 
 formed by enlisted men under authority of 
 Executive orders issued since May 13, 1908. 
 Accordingly, where Executive orders in force 
 on the last-named date limited the payment of 
 additional compensation to men detailed to 
 
 perform special sendees on board vessels of the 
 Navy, the conditions prescribed by such Exec- 
 utive orders could not, after the date of said act, 
 be changed by Executive order so as to allow 
 such additional compensation for similar sen-- 
 ices performed at shore stations. (24 Comp, 
 Dec, 364.7 
 
 Hdd, however, that additional compensa- 
 tion pro\dded by Executi-\'e order prior to 
 May 13, 1908, for enlisted men of the Navy de- 
 tailed as gun pointers "by the commanding 
 officer of a vessel, " may be allowed enlisted 
 men detailed as gun pointers by the officer in 
 command of an enlisted force of the NaAy 
 aboard a merchant ship, who may be consid- 
 ered as the commanding officer within the 
 meaning of said order; but that the conditions 
 under which said additional compen.sation may 
 be allowed are not subject to change. (24 
 Comp. Dec, 364.) 
 
 The act of May 13, 1908, pro\dding that the 
 pay of all enlisted men of the Na\y is hereby 
 increased 10 per cent, and that all pay herein 
 proAdded shall remain in force until changed 
 by act of Congress, took from the President the 
 powers pre\dously conferred upon him, under 
 section 1569, Re%dsed Statutes; and Congress 
 adopted, as the basis of the pay for enlisted men 
 of the NaAy, the rates then in force, making 
 such rates permanent. (26 Comp. Dec, 428). 
 
 By the act of May 13, 1908, Congress intended 
 to grant, by direct legislative action, the right 
 to pay preAdously granted by Executive 
 orders, subject to the limitations which the 
 Comptroller of the Treasury and the courts 
 had by decisions placed thereon. Had Con- 
 gress intended to extend benefits beyond those 
 which had been held to arise under Executive 
 orders, it is proper to assume that such intent 
 would have been expressed. (26 Comp. Dec, 
 428.) 
 
 4. Civilians shipped on naval vessels. — 
 Section 1569, Revdsed Statutes, authorizing the 
 President to fix the pay of petty officers, sea- 
 men, and others, does not apply to seamen on a 
 vessel who were "shipped" and not enlisted, 
 and whose pay was fixed as a matter of agree- 
 ment with the officer who shipped them. (Sto- 
 vel V. U. S., 36 Ct. Cls., 392.) 
 
 5. Insular force. — Pursuant to the author- 
 ity conferred by section 1569, ReAdsed Statutes, 
 the insular force, United States Na\'y, was 
 established by Executive order dated April 5, 
 1901 (incorporated in art. 4429, Na\y Regs., 
 1913), under which the Secretary of the ^axy 
 is authorized to enlist in the insular force not 
 to exceed 500 Filipinos in the ratings and at the 
 rates of pay therein specified. (27 Comp. 
 Dec, 357.) 
 
 Under the act of May 13, 1908 (35 Stat., 128), 
 the rates of pay of the insular force, as estab- 
 lished by the Executive order of April 5, 1901, 
 plus the 10 per cent increase thereof pro\dded 
 by that act, was to remain in force until changed 
 by act of Congress. (27 Comp. Dec, 357.) 
 
 Pursuant to section 1569, Re\dsed Statutes, 
 the President issued an order dated April 5, 
 1901, published in Na\'y Department General 
 Order No. 40 of April 8, 1901, establishing an 
 "insular force" of Filipinos and pro\ddiug 
 rates of pay for men enlisted therein. Held, 
 that the enlisted men of the said insular force 
 
 863 
 
Sec. 1669. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 are enlisted men of the Regular Navy of the 
 I'niteil States; that unless said insular force be 
 a part of the Regular Navy there would be no 
 authority for the eatal)lishment of such force; 
 and that, l)eing enlisted men of the Regular 
 Navy, they are entitled to the outfits on first 
 enlistment as authorized by act of April 27, 
 1904 (33 Stat., 326), and the extra pay for de- 
 tention in the senice as provided t)v section 
 1122, Revised Statutes. (12 Comp. Dec, 189; 
 see also note to sec. 1422, R. S.) 
 
 As General Order No. 40, Navy Department, 
 April 8, 1901, which provided for the organiza- 
 tion of the insular force of the Na\y, made no 
 provision for the payment of additional pay for 
 medals, pins, and bars, and as said order was 
 not modified or enlarged by the act of May 13, 
 1908 (35 Stat., 127), held, that the members of 
 said insular force acquired no further benefits 
 by reason of the provisions of that act, and 
 accordingly are not entitled to the additional 
 
 Say provided for enlisted men of the Regular 
 avy who are awarded good-conduct medals, 
 pins, and bars. (26 Comp. Dec, 428.) 
 
 Enlisted men of the insular force are entitled 
 to extra pay conferred upon all enlisted men 
 by statute; but extra pay pro\'ided by Execu- 
 tive orders other than that which established 
 the insular force is not payable to members of 
 said force. (26 Comp. Dec, 428.) 
 
 The rates of pay prescribed by section 6 of 
 the act of May 18, 1920 (41 Stat., 602), for 
 certain enlisted men of the Na\'y are applicable 
 to the insular force. Section 13 of the same act 
 provides that same shall be the rates of pay 
 during the current enlistment of "all" men in 
 active service on the date of the approval of the 
 act, etc. The words "all men" as used in that 
 section clearly extend to the enlisted men of 
 the insular force. (27 Comp. Dec, 357.) 
 
 The classification in the act of May 18, 1920, 
 section 6, prescribing base pay for certain en- 
 listed ratings, does not include the ratings of 
 steward or cook to commander in chief, stewards 
 and cooks to commandants, or any of the en- 
 listed ratings of the insular force. Apparently 
 no pro\dsion is made in the act for discontinuing 
 these ratings, or adapting them to the classified 
 ratings, and therefore they exist as ratings for 
 which no base pay is expressly provided by law. 
 Held, that the proAdsion in the act of June 4, 
 1920 (41 Stat., 836), empowering the Secretary 
 of the Navy to establish such grades and ratings 
 as may be necessary for the proper administra- 
 tion of the enlisted personnel of the Navy and 
 Marine Corps, confers upon the Secretary 
 authority to remodel or change any existing 
 ratings so as to make the designation thereof 
 conform to the classification of the ratings for 
 which a new base rate of pay is provided in the 
 act of May 18, 1920 (41 Stat., 603, 604); and 
 therefore that the Secretary is authorized to 
 determine the proper class in the messmen 
 branch in which native stewards, cooks, and 
 mess attendants of the insular force of the NaNy 
 should be placed in order to conform to the 
 classification of ratings for which base pay is 
 prescrif)ed by said act of May 18, 1920. (Comp. 
 Dec, Dec 17, 1920, file 29199-28:1.) 
 
 6. Mates. — See notes to sections 1408, 1409, 
 1556, and 1573, Revised Statutes. 
 
 The exception of mates from section 1569, 
 Revised Statutes, merely indicates that Con- 
 gress, having already fixed their pay by section 
 1556, such pay need not be fixed by the Presi- 
 dent. Such excei)tion of mates from other 
 petty officers in section 1569 indicates that they 
 are petty oflicers. (U. S. v. Fuller, 160 U. S., 
 593; see note to sec 1579, R. S.) 
 
 A mate is eligible for selection and designa- 
 tion as Navy mail clerk under the act of May 
 27, 1908 (35 Stat., 417), and is entitled to receive 
 the pay provided in said act for a Navy mail 
 clerk in addition to his pay as mate, provided 
 that the pro\asion in said act for the designation 
 and qualification of a Navy mail clerk has been 
 fully complied with. (15 Comp. Dec, 262. 
 See below, "Additional pay for special duty.") 
 
 In view of section 1558, Revised Statutes, 
 mates are not entitled to the additional pay 
 provided for by Executive ord-^r for good- 
 conduct medals, pins, and bars. (9 Comp. 
 Dec, 600.) 
 
 Mates being specifically excepted from sec- 
 tion 1569, under authority of which extra com- 
 pensation for good-conduct medals and bars, 
 seamen gunners' certificates, and petty officers' 
 certificates is provided, they are not entitled to 
 such extra compensation. (14 Comp. Dec, 457.) 
 
 7. Mess attendants and cooks. — See also 
 above, "Pay of insular force"; and see below, 
 "Longevity pay. General Order No. 34." 
 
 The rates of increased pay for continuous 
 service which, before the naval personnel act 
 of March 3, 1899, section 16 (30 Stat., 1008), 
 had been fixed by the President under section 
 1569, Revised Statutes, became by said act a 
 part of the statutory law; said act fixed the 
 increase of $1.36 per month to the pay pre- 
 scribed for the rating of mess attendants for 
 each consecutive reenlistment as the measure 
 of the increase of value to the service of one 
 who so reenlists, and it is not within the power 
 of anyone, until the law is changed, to fix a 
 greater or less rate. Under section 1569, the 
 President could fix the pay to be allowed mess 
 attendants, and could change same from time 
 to time as he deemed just and proper; but when 
 he had fixed the rate, then by section 16 of the 
 personnel act Congress declared what increased 
 amount they should receive for reenlistment. 
 Accordingly, held, that Navy Department 
 General Order No. 20, of January 1, 1901, fixing 
 the pay of mess attendants for the second and 
 third enlistments, and adding $4 to the monthly 
 pay of the rating for a first reenlistment and 
 $4 more per month for a second reenlistment, 
 in addition to the $1.36 per month for each 
 consecutive reenlistment allowed by section 16 
 of the personnel act of March 3, 1899, was con- 
 trary to law. (8 Comp. Dec, 227.) 
 
 A mess attendant of the Navy, third class, who 
 holds a certificate of identity issued by the 
 Department of Commerce and Labor, or other 
 proper evidence showing that he was born in 
 the Hawaiian Islands, is a citizen of the United 
 States and as such is entitled to be paid at the 
 rate provided for a citizen of the United States. 
 (17 Comp. Dec, 556.) 
 
 Extra pay for enlisted men detailed as 
 messmen was authorized by General Order 
 No. 61 of October 17, 1901, as amended by 
 
 864 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1569. 
 
 General Order No. 79 of January 7, 1902. 
 Held, that a man enhsted as a mess attendant 
 is not entitled to the extra pay allowed men 
 enlisted in other branches and temporarily 
 detailed to duty as messmen. The pay of such 
 mess attendants is governed bv specific orders. 
 (Comp. Dec, Apr. 11, 1908, 86 S. and A. Memo., 
 631.) 
 
 The rates of pay of mess attendants in the 
 Nax-y who are citizens of the United States 
 were fixed by Executive order dated January 
 28, 1908, and promulgated to become effective 
 from March 1, 1908, in General Order No. 62, 
 Navv Department, February 7, 1908. The act 
 of May, 13, 1908 (35 Stat., 128), should be 
 construed as specifically fixing, as permanent, 
 rates of pay for each rating then in effect for the 
 Navy. Included in these rates are the rates of 
 pay for mess attendants, citizens of the United 
 States. Accordingly, a mess attendant, second 
 class, is not encitted to the pay thus fixed by 
 law for mess attendants, third class. (25 Comp. 
 Dec, 424, citing Gen. Order 303, June 18, 1917, 
 note B. Compare, Comp. Dec, Apr. 14, 1914, 
 158 S. and A. Memo., 3038, noted below under 
 "Retired enlisted men.") 
 
 The fact that enlisted men of the Na\'y hold- 
 ing the rating of mess attendants, second class, 
 receive less pay, including the increase granted 
 by the act of 5lay 22, 1917, than mess attend- 
 ants, third class, does not authorize the credit- 
 ing of men holding the rating of mess attendant, 
 second class, with the pay fixed for the third 
 class. (25 Comp. Dec, 424.) 
 
 A wardroom cook who is a citizen of the 
 United States and who holds a certificate of 
 qualification as cook, issued to him while he 
 was a warrant officer's cook, ia entitled under 
 such certificate to $5 per month additional pay 
 until its expiration, two years from issuance 
 unless it shall sooner lapse or be revoked. (18 
 Comp. Dec, 724.) 
 
 8. Additional pay for special duty, etc. — 
 See also, below, "Retired enlisted men," and 
 "Leave of absence"; and see above "Mess 
 attendants and cooks." 
 
 The increased pay for a\-iation duty in the 
 case of enlisted men of the Na^^ is to be com- 
 puted upon the pay and permanent additions 
 thereto of their rating and service. (22 Comp. 
 Dec, 11.) 
 
 As originally pro\'ided by the act of May 22, 
 1917 (40 Stat., 87), the increase of pay to en- 
 listed men of the Na\'y, which was to continue 
 until not later than six months after the terminar 
 tion of the then existing war, was not perma- 
 nent in character, but for ser\'ice under special 
 circumstances due to the emergency of war. 
 Accordingly, it was held that such increase 
 should not be included in the computation of 
 the per cent additional pay for flpng duty, 
 either as pay or as permanent additions to pay 
 (citing 24 Comp. Dec, 139). However, the act 
 of July 11, 1919 (41 Stat., 140), changed the 
 natm-e of these increases and expressly de- 
 clared them to be the permanent rates of pay 
 of enlisted men of the Navy, to continue 
 throughout all existing enlistments and all 
 enlistments or reenlistments prior to July 1, 
 1920. They are, therefore, permanent for all 
 existing and futiu-e enlistments Avithin these 
 bounds. Accordingly, it was held that the act 
 
 of July 11, 1919, created "a new permanent 
 base rate of pay for each rating, and that this 
 rate is to be determined by adding to the base 
 pay of a particular rating in effect prior to July 
 11, 1919, the increase applicable thereto granted 
 by the 1917 law." (26 Comp. Dec, 220, citing 
 and afiirming 26 Comp. Dec, 139.) 
 
 Distinguished-service cross. — An enlisted man 
 of the Navy who, while ser\dng under the 
 jurisdiction of the Army, was awarded the dis- 
 tinguished-service cross provided by the act of 
 July 9, 1918 (40 Stat., 871), for persons serving 
 in any capacity with the Army, is entitled 
 upon his return to the Na\^ to the additional 
 pav at the rate pro\'ided by the act of February 
 4, 1919 (40 Stat., 1056), for the recipients of the 
 Na\-y cross for distinguished sei-vice. (26 
 Comp. Dec, 304; see also note to sec, 1407, 
 R. S.) 
 
 Navy mail clerks. — Where an ordinary seaman 
 of the Na\'y is appointed assistant Navy mail 
 clerk under the act of May 27, 1908 (35 Stat., 
 406), for duty on board a particular flagship 
 named, the appointment of such assistant mail 
 clerk io not revoked by transfer of the flag to 
 another ship. The proper oflicer not ha\'ing 
 directed the termination of his sersdces, and he 
 actually continuing to perform postal services, 
 such seaman is entitled to the additional pay; 
 but he is not entitled to pay for postal services 
 performed on board another vessel, as he earns 
 the pay by services on board the vessel to which 
 he was designated. (18 Comp. Dec, 589.) 
 
 Where specific pro^ision for the position of 
 NaA-y mail clerk for a fleet has been omitted 
 from the classes authorized in Navy regulations, 
 such position can not legally be filled; or, if 
 filled, the incumbent may not receive pay 
 therefor. (24 Comp. Dec, 491; but see, contra, 
 31 Op. Atty. Gen., 320, July 19, 1918, noted 
 under sec. 236, R. S., "Jurisdiction of account- 
 ing officers and heads of executive depart- 
 ments.") 
 
 Since the laws relating to the delivery of 
 special delivery mail matter apply only to 
 post offices, pajonent to Na\-y mail clerks and 
 assistant Navy mail clerks of fees for making 
 such deliverv is not authorized. (25 Comp. 
 Dec, 568.) 
 
 For other cases, see above, "Pay of mates"; 
 and see below, "Changes in ratings." _ 
 
 Service on submarines. — A submarine boat 
 in the hands of the contractor and not accept- 
 ed by the Government is not a "submarine 
 vessel of the Navy" within the meaning of 
 Executive order of January 1, 1901, General 
 Order No. 20, and where enlisted men of the 
 Na\'y are assigned to perform duty in con- 
 nection with the fitting out of such submarine 
 boat before its acceptance by the Governraent, 
 such men are not entitled to the additional 
 pay as provided in the said Executive order. 
 (18 Comp. Dec, 545.) 
 
 Enlisted men of the Navy attached to the 
 tender of a submarine group, "under instruc- 
 tion," already reported "qualified" but for 
 a different class of submarine torpedo boats, 
 who are performing actual duty on a sub- 
 marine torpedo boat in commission but of a 
 different class ft'om that for which pre\ioiisly 
 reported qualified, and are performing no 
 duty on board the tender to which attached. 
 
 865 
 
Sec. 1569. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 are entitled, in addition to the $5 per month 
 provided for service on submarines, to $1 per 
 day for the days on wliich their vessel is sub- 
 merged, as provided by Executive order of 
 November 9, 1905. (19 Comp. Dec., 468.) 
 
 Enlisted men of the Navy attached to a 
 tender of a submarine group, "under instruc- 
 tion," but not yet reported "qualified," who 
 are performing actual duty on board a sub- 
 marine torpedo boat in commission, but per- 
 forming no duty on board the tender to which 
 attached, are entitled to the $5 additional pay 
 prescribed in Executive order of January 1, 
 1901. (19 Comp. Dec, 468.) 
 
 Enlisted men of the Navy attached to and 
 serving on submarines are entitled to the in- 
 creased pay pro\'ided for duty on such vessels 
 although they are actually quartered and 
 messed on shore. (22 Comp. Dec, 299.) 
 
 Enlisted men of the Navy serving on a 
 submaiine vessel are entitled to the additional 
 pay pro\'ided for such service, although such 
 vessel is merely in commission "in ordinary." 
 (23 Comp. Dec, 89.) 
 
 An enlisted man of the Navy detailed as 
 instructor at a submarine school who, in the 
 performance of duty, occasionally submerges 
 in a submarine torpedo boat, while under 
 way or other\vise, is not attached to or serving 
 on board of or with a submarine torpedo boat 
 within the meaning of Navy Department 
 General Order No. 9 of 1905, so as to be en- 
 titled to the additional pay of $1 per day 
 provided therein. (25 Comp. Dec, 533,) 
 
 Gun captains and gun pointers. — An enlisted 
 man of the Navy who is detailed as a gun 
 captain, and who also holds a certificate of 
 graduation from the seamen gunners' class, is 
 entitled, while so detailed, to additional pay 
 both as a gun captain and under his certificate 
 as a seaman gunner. (22 Comp. Dec, 575.) 
 
 General Order No. 137, of July 25, 1903, 
 pro\ddes for additional pay, after qualifica- 
 tion, to enlisted men detailed, under certain 
 restrictions, as gun pointers. The restrictions 
 are that he be detailed at a gun of the class at 
 which he qualified. The order provides for 
 said detail to be made by the commanding 
 officer of a vessel. Held, that the officer in 
 command of an enlisted force of the Navy, 
 aboard a merchant ship, might well be con- 
 sidered as the commanding officer within the 
 meaning of said general order, and, subject to 
 the further conditions of the general order, 
 if an enlisted man be detailed at a gun on 
 board a merchant ship of the class at which 
 he was qualified, he would be entitled to the 
 additional pay as gim pointer of that class. 
 However, the pro\asions of the act of May 13, 
 1908, limit the right to the additional com- 
 pensation to details to guns of the class at 
 which qualified. (24 Comp. Dec, 364.) 
 
 Seamen gunners' certificates. — See notes 
 above, under "Pay of mates," and 22 Comp. 
 Dec, 575, noted above as to pay of gun cap- 
 tains. 
 
 An enlisted man who holds a petty officer's 
 certificate of graduation from electrical class, 
 and also holds a petty officer's certificate of 
 graduation from the seaman gunner class, is 
 entitled to additional monthly pay for each 
 of said certificates in accordance with Execu- 
 
 tive order of September 4, 1902, promulgated 
 in General Order No. 108 of September 11, 1902. 
 (Comp. Dec, Apr. 26, 1915, 170 S. and A. 
 Memo., 3597.) But an enlisted man who 
 holds two certificates of graduation from the 
 seaman gunner class of different schools is 
 entitled to additional pay for only one such 
 certificate. (Comp. Dec, Dec 3, 1914, 166 
 S. and A. Memo., 3461.) 
 
 Coxswains. — The "coxswains" who are en- 
 titled to additional pay under Executive 
 order of January 1, 1901, published in General 
 Order No. 20 of 1901, are confined to those 
 regularly rated as coxswains, and do not in- 
 clude men of other ratings detailed as cox- 
 swains. (20 Comp. Dec, 618.) 
 
 The additional pay of coxswains continues 
 during temporary separation of boats from 
 their ship unless their details to such duty 
 are revoked. (Comp. Dec, May 31, 1917, 
 195 S. and A. Memo., 4260.) 
 
 Ship's tailors and ship's helpers. — If the 
 total pay of an enlisted man of the Navy, 
 including increase for foreign service, extra 
 pay as heavy-gun pointer, and additional pay 
 as ship's tailor, exceeds $50 per month, he is 
 only entitled to receive sufficient of the ad- 
 ditional pay as ship's tailor to make his total 
 pay amount to §50 per month, in view of 
 General Order No. 186, June 5, 1905, in which 
 it is stated that a ship's tailor's monthly pay 
 shall not exceed $50. (15 Comp. Dec, 87.) 
 
 General Order No. 186, dated June 5, 1905, 
 limits the payment of additional pay to ship's 
 tailors and ship's helpers to men detailed to 
 perform the duties on board vessels, and fix 
 a sliding scale of monthly compensation based 
 on the complement of the vessel. Accordingly, 
 held, that the act of May 13, 1908, does not 
 authorize payment under any other conditions, 
 and the conditions may not after the date of 
 that act, be changed by Executive order. (24 
 Comp. Dec, 364.) 
 
 The increased rates of pay pro%TLded for the 
 enlisted personnel of the NaA-y by the act of 
 May 22, 1917 (40 Stat., 87), which, by the act 
 of July 11, 1919 (41 Stat., 139), became part of 
 the permanent base rates of pay of enlisted men 
 in certain enlistments, should be included in 
 arri%dng at the total pay of ship's tailors and 
 helpers. (26 Comp. Dec, 258.) 
 
 Petty officer's c£rtificates. — -See note below 
 under "Men furloughed without pay"; and 
 see note above, under "Seamen gunners' cer- 
 tificates. " 
 
 Good-conduct medals, pins, and bars. — See also 
 notes above, under "Pay of mates, " and "Pay 
 of insular force"; and see notes below, under 
 "Changes in ratings. " 
 
 Prior to the passage of the act of May 13,1908 
 (35 Stat., 217), the rates of pay for the various 
 ratings for good-conduct medals, and for most 
 of the extra duty and detail pay was pro\dded 
 for by Executive orders, in accordance with 
 section 1569, Revised Statutes. The addi- 
 tional pay allowed to holders of good-conduct 
 medals, pins, or bars was last fixed by Execu- 
 tive order incorporated in General Order No. 
 108, dated September 11, 1902. By enactment 
 of May 13, 1908, the additional pay for medals, 
 pins, and bars became statutory rates. (26 
 Comp. Dec, 428.) 
 
 866 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1569. 
 
 Medals, pina, and bars awarded to enlisted 
 men for service in the insular force of the Navy 
 entitle the holders thereof, after transfer to the 
 Regular Navy for general sendee, to the addi- 
 tional pay authorized by Executive order 
 of September 4, 1902, embodied in General 
 Order No. 108, September 11, 1902, and article 
 3664, Navy Regulations, 1913; plus 10 per cent 
 increase thereof as authorized by act of May 13, 
 1908 (35 Stat., 128). (27 Comp. Dec, 468.) 
 Also, an enlisted man of the Navy is entitled to 
 be credited mth pay for a good-conduct medal 
 granted to him for service in the Marine Corps. 
 (20 Comp. Dec, 360.) 
 
 9. Longevity pay, General Order No. 
 34. — See also note above, under "Mess attend- 
 ants and cooks"; and see notes below, under 
 "Retired enlisted men," "Men transferred to 
 Fleet Naval Resen^e," "Men furloughed with- 
 out pay, " " Naval Academy Band, ' ' and ' ' Men 
 extending enlistments." Further, see note to 
 section 1573, Revised Statutes. 
 
 The complete control given the President by 
 section 1569, Rex-ised Statutes, over the pay 
 of enlisted men certainly justified the Presi- 
 dent in establishing more than one amount as 
 the pay of a rating. If he may fix the pay of a 
 fireman, first class, at $35 per month, he may 
 also fix the amounts to be paid in that rating at 
 $35, $40, and $43, as done by General Order No. 
 34 of 1906, and allow the amount of $40 to those 
 of that rating having foiu" years' experience 
 under the conditions stated in the order, and 
 the amount of $43 to those of that rating ha\'ing 
 eight years' experience. Neither period of 
 former experience must necessarily be the 
 period immediately preceding the last enlist- 
 ment, but may have been at any time, contin- 
 uous reenlistment not being required. _ In addi- 
 tion to the pay so fixed by the President, the 
 men are entitled to the $1.36 per month allowed 
 by the act of March 3, 1899, if they come within 
 its terms as to reenlistment within four months, 
 etc. (13 Comp. Dec, 448, distinguishing 8 
 Comp. Dec, 227, noted above, relating to con- 
 tinuous ser\'ice pay of mess attendants.) 
 
 Na\y Department General Order No. 34 
 of November 28, 1906, publisliing Executive 
 order of November 27, 1906, proxiding $5 per 
 month and $8 per month additional pay_ for 
 trained men who are citizens of the United 
 States, was \vithin the authority of the President 
 under section 1569, Revised Statutes, and 
 not contrary to the act of March 3, 1899, sec- 
 tion 16 (30 Stat., 1008), proAiding continuous- 
 service pay of $1.36 per month. (13 Comp. 
 Dec, 448.) 
 
 Section 1569, Revised Statutes, proAdded 
 that the pay of enlisted men shall be fixed by 
 the President, and that he might change the 
 same from time to time as he deemed just and 
 proper. Congress, by section 16 of the Na\y 
 personnel act of March 3, 1899, proiided that 
 to the rates of pay thus established by the 
 President the enlisted men shall in addition 
 receive an increase of $1.36 per month for each 
 continuous reenlistment. Congress ha\ing un- 
 dertaken to pro\'ide for continuous-service pay 
 the general authority of the President to fix the 
 pay of enlisted men of the Navy was modified 
 to that extent, but to that extent only. Gen- 
 eral Order No. 34 of 1906 does not attempt 
 
 to provide for continuous-service pay, but does 
 undertake to provide for pay based on length 
 of service, or longe\T.ty pay. The main pur- 
 pose of the statute pro\dding for continuous- 
 service pay was to encourage immediate reen- 
 listment, while that of General Order No. 34 
 was to establish higher rates of pay for trained 
 men. (13 Comp. Dec, 448; 17 Comp. Dec, 
 27 32 ) 
 
 By the terms of General Order No. 34 of 1906, 
 no one but a citizen of the United States is en- 
 titled to receive the additional pay therein pro- 
 vided, and it follows that a payment of it to one 
 not a citizen would be an illegal payment and 
 credit could not be allowed a pajonaster making 
 such payment. The pa>Tnaster should, there- 
 fore, for his own protection, check all such pay- 
 ments made for periods prior to the date on 
 which the man became a citizen. (14 Comp. 
 Dec, 267.) 
 
 An enlisted man of the Navy who was not a 
 citizen of the United States at the time of his 
 reenlistment, but who was naturalized during 
 his second period of service, is entitled to the 
 additional pay proiided by Executive order of 
 November 27, 1906 (General Order No. 34), 
 fi'om the date of his naturalization, if he other- 
 wise comes within the scope of said order. 
 (14 Comp. Dec, 284; 18 Comp. Dec, 617.) 
 
 A person of Chinese descent, born in the 
 United States of Chinese parents, is a citizen of 
 the United States within the meaning of Gen- 
 eral Orders Nos. 34 and 62 of the Navy. (18 
 Comp. Dec, 1026.) 
 
 A minor residing in this country became a 
 citizen of the United States upon the natural- 
 ization of his stepfather, and being enlisted in 
 the Navy and otherwise qualified is entitled to 
 the additional pay pro\'ided by General Order 
 No. 34 of November 28, 1906. (19 Comp. Dec, 
 641.) 
 
 An enlisted man of the Navy who is given a 
 bad-conduct discharge and subsequently re- 
 enlists is not entitled during his enlistment 
 next following such discharge to any increase 
 of pay under the provisions of General Order 
 No. 34 of 1906. (19 Comp. Dec. 768; 20 
 Comp. Dec, 856.) 
 
 An enlisted man of the Navy dishonorably 
 discharged pursuant to sentence of court- 
 martial mthin three months preceding the ex- 
 piration of his enlistment, and recommended 
 for reenlistment, is not entitled on reenlistment 
 to any additional pay under General Order No. 
 34 of 190G. (21 Comp. Dec, 871; see also 
 Comp. Dec, Aug. 31, 1914, 70 MS. Comp. 
 Dec, 931.) 
 
 Enrolled men transferred from the Naval 
 Reserve Force to the Regular Navy to serve the 
 unexpired term of they: enrollment "shall be 
 entitled to and receive the same pay, rights, 
 privileges, and allowances in all respects as 
 now pro\'ided by existing law for men regu- 
 larly discharged and reenUsted immediately 
 upon the expiration of their full four year en- 
 listment in the Regular Navy." (Act July 11, 
 1919, 41 Stat., 139.) Under this act, held, 
 that enrolled men of the Naval Reser\'e Force 
 so transferred to the Regular Navy are entitled, 
 from the date the transfer is consummated, to 
 increase of pay for continuous ser\dce and under 
 General Order No. 34 of 1906, as well as to 
 
 867 
 
Sec. 1569. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 honorable-discharge gratuity. (26 Comp. Dec, 
 33.) 
 
 The act of July 11, 1919 (-11 Stat., 141), pro- 
 ■v-irlos that "any onlisled man of the Navy or 
 Marino Corps who has been or may be dis- 
 charged to enable him to accept appointment 
 as a commi.ssionod or warrant officer in the 
 Naval Reserve Force or Marine Corps Reserve, 
 and who reenlists in the Navy or Marine Corps 
 after the termination of his reser\'e service, 
 shall be entitled, in computing serAdce for 
 retirement, to credit for all active reserve serv- 
 ice; and if he reenlists in the Navy or Marine 
 Corps within four or three months, respectively, 
 from the date of the termination of his service as 
 an officer of the reserve, he shall be restored to 
 the grade or rank held by him before being 
 discharged to accept such commission or war- 
 rant, and his ser\'ice in the Regular Na^^ or 
 Marine Corps, including his active service in 
 the Naval Reserve Force or Marine Corps 
 Reserve, shall be regarded as continuous for 
 purposes of continuous-ser\dce pay." Held, 
 that this act preserves the status previously 
 acquired by continuity of serA-ice, which, with- 
 out the pro\dsion, would be lost; but it does 
 not create any right to permanent additions to 
 pav other than those already acquired. (26 
 Comp. Dec, 565.) 
 
 Reenlistment pay_ under General Order No. 
 34, continuous-service pav under the act of 
 August 22, 1912 (noted under sec. 1573, R. S.), 
 an(I honorable-discharge gratuity under the act 
 of August 22, 1912 (noted under sec. 1573, R. S.), 
 are three distinct classifications of pay that 
 should be kept separate and apart in any con- 
 sideration of an enlisted man's respective rights 
 thereto, each being dependent upon conditions 
 peculiar to itself. Accordingly, hfhj, that the 
 pro^-ision of the act of July 11, 1919 (41 Stat., 
 141), that service performed by the enlisted 
 men described therein "shall be- regarded as 
 continuous for purposes of continuous-ser\ice 
 pay," does not entitle such men to an increase 
 in continuous-service pay and additional pay 
 under article 4427, paragraph 25, Navy Regula- 
 tions, 1913 (Gen. Order No. 34, 1906), imme- 
 diately upon reenlistment; that it does not 
 entitle such men to increase in continuous- 
 service pay and additional pay under General 
 Order No.' 34 of 1906, upon the completion of 
 four years from date of last reenlistment in the 
 Na\y ; that the pay of such men, upon restora- 
 tion, including permanent additions pre\'iously 
 earned by reason of continuity of serxdce, will 
 remain unchanged for the period of their en- 
 listment, except as it may be affected by 
 changes in law or rating; and that such men 
 will not be entitled to honorable-discharge 
 gratuity immediately upon reenlistment or 
 upon the completion of four years' service fi'om 
 date of last reenlistment in the Navy. (26 
 Comp. Dec, 565. Compare, 25 Comp. Dec, 
 440, noted below, under "Retired enlisted 
 men.") 
 
 For the purpose of computing payment of 
 honorable-discharge gratuity, continuous-serv- 
 ice pay, and pay under General Order No. 34 
 (1906), enlistments in the Naw for " the period 
 of the present war," authorized by section 3 of 
 the act of May 22, 1917 (40 Stat., 84), may be 
 considered to have expired on date of discharge; 
 
 or in case of an extension of enlistment, as 
 pro\'ided by the act of July 11, 1919 (41 Stat., 
 139), on date the extension becomes effective. 
 (26 Comp. Dec, 132.) 
 
 As the word "ser\dce" as used in article 4427 
 (25), Na\y Regulations, 1913, and General 
 Order No. 34, contemplates the performance 
 of duty or a duty status, and as an enlistment 
 which expires while the enlisted man is in 
 desertion is not a termination of service by ex- 
 
 Siration of enlistment, an enlisted man of the 
 aAy who deserts, surrenders himself subse- 
 quent to the period of enlistment, and is per- 
 mitted to reenlist, is not entitled to pay under 
 General Order No. 34, during the enlistment 
 following such desertion. (26 Comp. Dec, 
 250.) 
 
 The right of a man to pay under General 
 Order No. 34 of 1906 involves the question of 
 his citizenship, which is one of fact which the 
 Comptroller of the Treasury is not required or 
 authorized to decide. (26 Comp. Dec, 399, 
 401.) 
 
 The basic pro\isions of all existing laws relat- 
 ing to pay for reenlistment in the Na\y are now 
 in General Order No. 34, Na\y Department, 
 November 28, 1906, promulgating an Executive 
 order of November 27, 1906, and ha\ing the 
 authority of law. General Order No. 34 was 
 carried into the NaAy Regulations of 1913 as 
 article4427, paragraph25. '(26Comp. Dec, 565.) 
 
 By reason of prior service in the Regular 
 Navy, terminated by discharge at expiration of 
 enlistment, an enrolled member of the Naval 
 Reserve Force acquires a right to pay under 
 General Order No. 34 while on active duty, and 
 is entitled to the further increases provided by 
 that order when he transfers to the Regular 
 Na\y to serve the unexpired portion of his 
 enrollment, as authorized by the act of July 11, 
 1919. (26 Comp. Dec, 778.) 
 
 Enlisted men of the Na\y ser\ing over four 
 years under short-term enlistments or exten- 
 sions of enlistments are entitled to pay under 
 General Order No. 34 at the expiration of the 
 first four years of ser\ice, either continuous or 
 dissevered, and at the expiration of each 
 four years of ser\ice thereafter: Provided, 
 That no pre\ious ser\ice terminated for other 
 than expiration of enlistment (unless on rec- 
 ommendation of boards of medical survey) 
 may be counted. (27 Comp. Dec, 506.) 
 
 The period of ser\ice from which enlisted 
 men of the Navy were honorably discharged in 
 the course of demobilization under the provi- 
 sions of the act of July 11, 1919 (41 Stat., 139), 
 should be regarded as a full statutory period of 
 four years, and entitles the man, if otherwise 
 qualified, to pay under General Order No. 34 
 (1906) in subsequent enlistments. (28 Comp. 
 Dec, 814.) 
 
 10. Changes in rating. — Under article 
 798, NaAy Regulations, 1896, an enlisted man 
 given an acting appointment by the captain of 
 a ship on a foreign station is entitled to 
 the pay of the rating gi^'en by the appoint- 
 ment until notice is received of the disapproval 
 of such appointment by the Na\y Department, 
 the disapproval being based upon noncom- 
 pliance with article 800 of the Regulations 
 requiring that, as far as practicable, each class 
 of petty officers be recruited from the next 
 
 868 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1569. 
 
 lower class, and that they shall be adA^anced 
 but one class at a time. (4 Comp. Dec, 77.) 
 
 The rate of pay of an enlisted man in the 
 naval ser\dce depends upon the orders estab- 
 lishing his rating, and is not affected by the 
 fact that notice of a change in rating is not 
 communicated to the proper pay officer pur- 
 suant to article 826 of the Navy Regulations of 
 1896. (4 Comp. Dec, 95.) 
 
 An enlisted man of the Naiy who, while 
 holding the rating of ship fitter, first class, is 
 appointed acting chief carpenter's mate, is en- 
 titled while ser\T.ng under said appointment 
 only to the pay of an acting chief carpenter's 
 mate, notmtlistanding that it is less than the 
 pay of a ship fitter. (12 Comp. Dec, 346.) 
 
 Where an acting bandmaster of the Navy, 
 who was not a citizen of the United States, 
 received a permanent appointment as band- 
 master under article 852, Navy Regulations, 
 1905, after the examination provided by said 
 article, and performed the duties of such 
 office, he is entitled to retain the pay he re- 
 ceived under said appointment, notwithstand- 
 ing that said article required that men to whom 
 such appointments were issued be citizens of 
 the United States. (14 Comp. Dec, 267.) 
 
 The Navy Regulations, 1900 (art. 948), pro- 
 Added that "apprentices, third class, shall be 
 rated apprentices, second class, immediately 
 before being transferred from the training serv- 
 ice to general service, and shall not again be 
 reduced below that rating while continuing in 
 general serAdce, except by sentence of a court- 
 martial . ' ' Held, that an apprentice of the third 
 class in the Na\y, transferred to the general 
 8er\dce while said regulation was in force, 
 was entitled to the rating of an apprentice 
 of the second class immediately before such 
 transfer; that the duty enjoined upon the com- 
 manding officer was ministerial and a mere 
 formality; and where the commanding officer 
 neglected to perform such duty until more than 
 five months after the transfer, his neglect could 
 not have the effect to deprive the apprentice 
 of the pay to wliich he was entitled under 
 General Order No. 20 of January 1, 1901; that 
 the regulation and the Executive order fix the 
 man's right to pay, and he should not be made 
 to suffer because the commanding officer neg- 
 lected to perform a ministerial and formal act. 
 (15 Comp. Dec, 459.) 
 
 When enlisted men of the NaA-y take the 
 required oath and enter upon their duties as 
 NaA^y mail clerks and assistant NaA-y mail 
 clerks, as proAdded in the act of May 27, 1908 
 (35 Stat., 417), by order of their commanding 
 officer, and are recommended by said officer for 
 designation from the date on which they en- 
 tered upon their duties, which recommenda- 
 tion is subsequently approved by the Secretaiy 
 of the NaA-y and the designation made by the 
 Postmaster General, such enlisted men are en- 
 titled to the additional pay pro\dded for in the 
 act of May 27, 1908, from the date on which 
 they took the oath and entered upon their 
 duties. (16 Comp. Dec, 442.) 
 
 The pay of a new rating to which an enlisted 
 man of the NaAy is reduced by sentence of 
 summary court-martial becomes his proper pay 
 on the date of the approval of the sentence by 
 the senior officer present. (17 Comp. Dec, 489.) 
 
 As soon as the new system of ratings proAdded 
 in the act of August 29, 1916 (39 Stat., 572), for 
 the enlisted force of the Hospital Corps shall 
 have l)een established, enlisted men thereof 
 then rated as hospital apprentices, second class, 
 shall be paid only $19 per month, although 
 prior to the passage of that act or the establish- 
 ment of the ratings therein provided they were 
 serAdng as hospital apprentices at $20 per 
 month. (23 Comp. Dec, 231.) 
 
 The statement by a commanding officer of 
 the NaA'y, over his signature, that a rating of 
 an enlisted man was actually changed on a 
 certain date, is sufficient cAddence to entitle 
 the man to the increase in pay from that date. 
 (26 Comp. Dec, .393.) 
 
 11. Comraenceinent of pay. — See note to 
 section 1418, Re\dsed Statutes, under, "When 
 enlistment complete." 
 
 12. Leave of absence. — A Navy mail clerk 
 absent from his vessel and undergoing treatment 
 at a hospital on shore, when he can not perform 
 his duties as Na-xy mail clerk, is not entitled to 
 the additional pay. The additional pay of such 
 mail clerks, under the act of May 27, '1908 (35 
 Stat., 417), is dependent upon the performance 
 of the ser\ices prescribed by said act. (15 
 Comp. Dec, 548.) 
 
 An enlisted man of the Navy regularly de- 
 tailed to perform the duties of "ship's tailor" 
 is entitled while on leave to the additional pay 
 provided by General Order No. 186, June 5, 
 1905, of the NaA^y Department, pro\dded that 
 no one has been detailed to perform his duties 
 as ship's tailor during his absence on leave. 
 (15 Comp. Dec, 894.) 
 
 Enlisted men of the NaAy on authorized 
 leave are not entitled to the $5 per month 
 additional pay for submarine service authorized 
 by Executive order of January 1, 1901. (19 
 Comp. Dec, 754.) 
 
 Enlisted men of the NaA'y properly detailed, 
 under the act of March 3, 1915 (38 Stat., 928), 
 for duty invohing actual flying in aircraft, are 
 entitled to the additional pay pro\ided in that 
 act while on authorized leave of absence -nithin 
 the period of such detail. (22 Comp. Dec, 292.) 
 
 An ordinary seaman detailed as jack-of-the- 
 dust is entitled while on leave of absence to the 
 additional pay allowed for such detail by Gen- 
 eral Order No. 178 of November 29, 1904. (Comp. 
 Dec, Aug. 17, 1905, 54 S. and A. Memo., 585.) 
 So also a chief petty officer detailed as instructor 
 of apprentice seamen is entitled to additional 
 pay under General Order No. 34 of November 
 28, 1906, while on leave, if his detail remain 
 unrevoked. (Comp. Dec, Nov. 12, 1910, 117 
 S. and A. Memo., 1617.) 
 
 See act of June 5, 1920 (41 Stat., 975, 976), 
 as to furlough fare certificates for travel of dis- 
 abled enlisted men. 
 
 13. Forfeiture of pay. — ^The forfeiture in- 
 curred by a deserter under the Army Regula- 
 tions is not a fine which the soldier may be 
 compelled to pay out of any property he pos- 
 sesses, by imprisonment if need be; nor is it, 
 strictly speaking, a punishment; but it relates 
 solely to the soldier's rights under his contract 
 of enlistment, and is a forfeiture of moneys 
 that were due and payable under it in conse- 
 quence of his contract, and still would be if he 
 had not deserted; and for the purpose of de. 
 
 869 
 
Sec. 1569. 
 
 PL 2. REVISED STATUTES 
 
 The Navy. 
 
 termiuing what the soldier's rights are, to re- 
 ceive money from the United States under or 
 in consequence of hia contract, the fact of 
 desertion need not be established by the record 
 of a court-martial. As the entiy of desertion 
 on the muster roll may sometimes have been 
 improperly made, and may afterward be can- 
 celed by the War Department on proof that the 
 soldier did not desert, it may happen that the 
 soldier by the cancellation of such an entry 
 becomes entitled to bountv previously withheld 
 from him. (13 Op. Atty.'Gen., 188, 199.) 
 
 Under a law proAdding that "all forfeitures 
 on account of desertion" should be used for 
 the support of the National Asylum for Dis- 
 abled Volunteer Soldiers, installments of 
 bounty which are not already due and pay- 
 able to a soldier at the time he deserts never 
 become due and payable in case he does not 
 return or is not returned to the service, and 
 therefore are not forfeited in the legal sense 
 of that word. Nor, in case the deserter re- 
 turns or is apprehended and put back into 
 service, are such, installments forfeited on 
 account of desertion, because either the soldier 
 on serving out his term is entitled to receive 
 them, or they never become due and payable 
 by reason of his desertion. But the install- 
 ments and bounty due and payable at the 
 time of desertion are forfeited thereby, in both 
 those cases, and become payable to the board 
 of managers of the National Asylimi for Dis- 
 abled "Volunteer Soldiers. (13 Op. Atty. 
 Gen., 188.) 
 
 A soldier who had deserted but was restored 
 to duty by order of his department commander 
 without trial, on condition that he make good 
 the time lost (about two months), and who 
 complied with the condition and was honor- 
 ably discharged at the expiration of his term 
 of service, held, entitled to bounty money 
 not\vithstanding his desertion. (U. S. v. 
 Kelly, 15 Wall., 34. Note: This decision 
 related to money accruing subsequent to the 
 desertion, and not to money due and payable 
 at the time of desertion; see U. S. v. Landers, 
 92 U. S., 77.) 
 
 The honorable discharge of the deserter 
 was a formal, final judgment, passed by the 
 Government upon the entire military record 
 of the soldier, and an authoritative declara- 
 tion by it that he had left the service in a 
 status of honor; as such it dispensed altogether 
 with the supposed necessity that the soldier 
 must obtain bounty by removal, by order, 
 of the charge of desertion fi'om the rolls, and 
 amounted of itself to the removal of any charge 
 or impediment in the way of his receiving 
 bounty. (U. S. v. Kelly, 15 Wall., 34; com- 
 pare U. S. V. Landers, 92 U. S., 77.) 
 
 Forfeiture of pay and allowances up to the 
 time of the desertion follows from the condi- 
 tions of the contract of enlistment, which is 
 for faithful service. The contract is an en- 
 tirety; and if service for any portion of the 
 time is criminally omitted, the pay and al- 
 lowances for faithfxil service are not earned. 
 And for the purpose of determining the rights 
 of the soldier to receive pay and allowances 
 for past services, the fact of desertion need not 
 be established by the findings of a court- 
 
 martial; it is sufficient to justify a A\ithholding 
 of tlie moneys that the fact appears upon the 
 muster rolls of his company. But forfeiture 
 of pay and allowances for future service, as a 
 condition of restoration to duty, can only be 
 imposed by a court-martial. (U. S. v. Land- 
 ers, 92 U. S., 77, 79, explaining U. S. v. Kelly, 
 15 Wall., 34.) 
 
 An honorable discharge granted to a soldier 
 who has been restored to duty after desertion, 
 and whose conduct subsequent to his resto- 
 ration to duty entitled him to such honorable 
 discharge, could not relieve him from the con- 
 sequences of the judgment of a military court 
 and entitled him to pay and allowances which 
 that court had adjudged to be forfeited. The 
 forfeiture must first be removed, either by its 
 remission in terms, or by the reversal of the 
 judgment, or the pardon of the President. 
 (U. S. V. Landers, 92 U. S., 77, 80, explaining 
 U. S. V. Kelly, 15 Wall., 34.:) 
 
 Where a deserter at larg surrenders and is 
 restored to duty \\dthout trial, but the facts 
 clearly establish that he had deserted, he is 
 not entitled to payment of the amount due 
 him at the time of his desertion, not\vithstand- 
 ing that the Bureau of Navigation may have 
 removed the mark of desertion on the alleged 
 ground that it was erroneously entered. (27 
 Comp. Dec, 4G, citing 14 Comp. Dec, 412.) 
 
 The pay of enlisted men of the Navy being 
 fixed by the President and sul^ject to regula- 
 tion by him, a regulation providing that en- 
 Hsted men absent from duty without leave 
 shall forfeit all pay while so absent is valid; 
 and a.n enlisted man so absent is not entitled 
 to pay for the period of such absence, although 
 his absence was caused by his arrest by the 
 civil authorities. (9 Comp. Dec, 231.) 
 
 An enlisted man of the Navy absent from 
 his station and duty without leave is not en- 
 titled to pay for the time so absent, but upon 
 his apprehension and delivery to the naval 
 authorities he is thereafter entitled to pay 
 unless it shall be forfeited by sentence of a 
 court-martial. (15 Comp. Dec, 386.) 
 
 No deduction is to be made for the naval 
 hospital fund for any peiiod that an enlisted 
 man is absent without leave. (18 Comp. 
 Dec, 724; see sec. 4808, K. S.) 
 
 The pay of an enlisted man of the Navy 
 held by the civil authorities for trial on a 
 criminal charge should not be paid unless he 
 is acquitted; and if found guilty his pay is 
 then forfeited to the United States fi-om the 
 date of his arrest. (2 Comp. Dec, 584.) 
 
 Where a carpenter's mate of the Navy was 
 arrested by the civil authorities on a criminal 
 charge and admitted on to bail on his own re- 
 cognizance, and his trial indefinitely post- 
 poned, and it was apparently not the inten- 
 tion of the authorities to further prosecute 
 the case, his pay was not thereby forfeited. 
 (10 Comp. Dec, 490.) 
 
 When enlisted men of the Navy have been 
 tried and acquitted by coiurt-martial of the 
 charge of desertion, such acquittal is also an 
 acquittal of absence without leave, and the 
 pay department and accounting officers should 
 follow the judgments in such cases and con- 
 sider such enlisted men as being in a pay 
 
 870 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1569. 
 
 statiis during the period that they were charged 
 with being in desertion. (16 Comp. Dec, 
 480.) 
 
 An enlisted man of the Navy released from 
 the custody of the ci\-il authorities on bail, who 
 reports at his regular station for duty, is not to 
 be deprived of his pay after so reporting simply 
 because, due solely to the fact that he was on 
 bail, no naval duty was assigned him. (22 
 Comp. Dec, 374.) 
 
 A soldier who was arrested by the ci\il author- 
 ities on a charge of murder, of which he was 
 con\-icted, is not entitled to pay or allowances 
 after the date of his arrest, although pending 
 his trial he was discharged by reason of the 
 expiration of his term of enlistment. (9 Comp. 
 Dec, 249.) 
 
 A soldier who claimed that his enlistment 
 in the Army was illegal, and endeavored to se- 
 cure his release by habeas corpus proceedings 
 which were decided against him by the Su- 
 preme Court, held, not entitled to pay and 
 allowances for the time that his litigation was 
 pending in the ci\il courts and no sefvice was 
 being rendered by him to the United States, he 
 ha%ing secured his release by decision of the 
 lower court which was reversed on appeal. 
 (Grimley r. T. S., 32 Ct. Cls., 285.) 
 
 The pay and allowances of an enlisted man 
 of the Na\y can not be withheld because he may 
 have been engaged in the performance of serv- 
 ice prohibited by law, pro\T.ded that he was 
 not enlisted solely for the performance of such 
 illegal ser\ice. (6 Comp. Dec, 756.) 
 
 If men are properly enlisted in the naval 
 service, it is not material to the accounting offi- 
 cers whether they are at all times lawfully en- 
 gaged or not. That is a matter regulated by 
 the Na\-y Department. The legality of such 
 ser\'ice can become material to the accounting 
 officers only where the enlistments are made 
 solely for such illegal purpose, and then only in 
 
 Eassing upon payments made under said en- 
 stments. (6 Comp. Dec, 756.) 
 
 Absence fi-om duty on account of injury, 
 sickness, or disease resulting from misconduct 
 of an enlisted man shall forfeit his pay for the 
 time of such absence. (See act of Aug. 29, 
 1916, 39 Stat., 580, as amended by act of July 
 1, 1918, 40 Stat., 717, noted under sec. 1556, 
 R. S., under "Absence from duty." 
 
 For other cases, see note to section 1556, Re- 
 vised Statutes, relating to pay of officers. 
 
 14. Men transferred to Fleet Naval Re- 
 serve. — Since the transfer of an enlisted man 
 of the Regular Na\'y to the Fleet Naval Reserve 
 at the expiration of enlistment, after 16 years' 
 serA-ice, has the effect of relie\'ing him of all 
 obligation under said contract of enlistment, 
 it is to all intents and purposes a discharge at 
 the expiration of enlistment, so as to entitle 
 him to travel allowance as provided bv the act 
 of June 29, 1906 (34 Stat., 555). (25 Comp. 
 Dec, 609.) 
 
 A transferred member of the Fleet Naval Re- 
 serve, whose transfer was made after 20 years' 
 ser\-ice in the Regular Na\'y and not at the 
 expiration of enlistment, and who subsequently 
 was discharged from the Fleet Naval Reserve 
 and reenlisted, next day, in the Regular Na\'y, 
 is not entitled to credit for continuous-serA-ice 
 increase of pay, or for the increase under Gen- 
 
 eral Order No. 34 of 1906. The cases of trans- 
 ferred members are not covered by the pro- 
 \ision in the act of August 29, 1916 (39 Stat., 
 590), with respect to enrolled members of the 
 Naval Reserve Force who ai'e discharged there- 
 from and reenlist in the Regular NaAy , nor is it 
 covered by 23 Comp. Dec, 535, which related 
 to enlisted men of the NaA-y transferred to the 
 Fleet NaAal Reser^'e at expiration of a period 
 of enlistment and subsequently reenlisting in the 
 Regular Navy. (25 Comp. Dec, 884; see also 
 note to sec. 1573, R. S., as to centinuous- 
 ser^ice pay.) 
 
 Enlisted men transferred to the Fleet Naval 
 ReserAe after 16 or 20 years' service, whose 
 ratings at the time of transfer entitled them to 
 honorable discharge, and who as reser\-ists are 
 not retained on active duty, are entitled at 
 time of transfer to travel allowance at 5 cents 
 per mile from the place of transfer to their 
 actual bona fide home or residence or place of 
 original muster into the serA-ice, at their option, 
 as proA-ided by act of February 28, 1919 (40 
 Stat., 1203). (26 Comp. Dec, 636.) 
 
 For other cases, see note to section 1556, Re- 
 \ised Statutes, under "Naval Reserve Force." 
 
 15. Men furloughed without pay. — An 
 enlisted man who has been discharged by 
 purchase or by special order, and who upon 
 such discharge has refunded the cost of cloth- 
 ing outfit, is entitled upon reentry- into the 
 ser\ice on a second enlistment to a new outfit, 
 subject only to the condition that the total net 
 cost of outfits fm'uished anv one man shall not 
 exceed $60. (Act Mar. 3, 1915, 38 Stat., 932.) 
 An enlisted man furloughed without pay, 
 under the act of August 29, 1916 (39 Stat., 580), 
 under the same conditions and in lieu of dis- 
 charge by purchase, and who refunded the cost 
 of clothing outfit issued to him, is entitled upon 
 recall to active duty to the same right to cloth- 
 ing outfit as that proA-ided by the act of March 
 3, 1915, for men reentering the serA"ice after dis- 
 charge by purchase. (24 Comp. Dec, 191.) 
 
 The term "unexpired portion of enlistment, " 
 as used in the act of August 29, 1916, with re- 
 spect to the ser-\-ice of an enlisted man after 
 recall from furlough without pay, means the 
 unexpired portion of the enlistment at the 
 date of recall from furlough, and not that 
 remaining when said fiu-lough was granted. 
 (25 Comp. Dec, 231.) 
 
 An enhsted man of the Na\y furloughed 
 without pay in accordance with the act of 
 August 29, 1916 (39 Stat., 580), resumes in all 
 respects his former status upon being recalled 
 to active senice, and upon discharge at the 
 completion of the unexpired portion of his en- 
 listment is entitled to travel allowance, and 
 upon reenlistment to the honorable-discharge 
 gratuity if othenvise authoilzed. (25 Comp. 
 Dec, 231; see also note to sec. 1573, R. S., as to 
 honorable-discharge gratuity.) 
 
 An enlisted man of the Navy whose preced- 
 ing period of enlistment expired while he was 
 on furlough without pay, as authorized by act 
 of August 29, 1916 (39 Stat., 580), and who, 
 therefore, in accordance with the practice then 
 prevailing, did not receive an honorable dis- 
 charge upon the expiration of such enlistment, 
 his enlistment ha\-ing been regarded as ter_ 
 minated by furlough and not by expiration 
 
 871 
 
Sec. 1560. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 held, not entitled to receive the additional pay 
 authorized for holdini^ a petty officer's cer- 
 ficate (art. 4427, i)ar,^ 8, Navy Regs., 1913, 
 C. N. R. 3), or the longe\aty pay pro\-ided in 
 General Order No. 34 of 1906, or the continu- 
 ous-service pay authorized l)y act of August 22, 
 1912 (37 Stat., 331), amending section 1573, 
 Revised Statutes, all of which payments are 
 ct)nditioned ujton reenlistment after the re- 
 ceipt of an honorable discharge. (25 Comp. 
 Dec, 328.) 
 
 For other cases, see note to section 1417, Re- 
 \ised Statutes. 
 
 16. Men extending enlistment.— An en- 
 listed man of the Na\'>' who has a deposit to his 
 credit, under the act of February 9, 1889 (25 
 Stat., 657), and who elects to extend his en- 
 listment under the act of August 22, 1912 (37 
 Stat., 331), may not be repaid such deposit 
 until his discharge from his enlistment, as 
 extended. (19 Comp. Dec, 384.) 
 
 The first enlistment of a seaman was ex- 
 tended one year, and during extension his 
 rating was changed to gunner's mate, third 
 class; at expiration of enlistment, as extended, 
 he was honorably discharged and reenlisted 
 within foiir months. Held, that on reenlist- 
 ment he was entitled to four months' honorable- 
 discharge gratuity at the rate of pay he was 
 recei\-ing when discharged, wliich included his 
 rating pay as a gunner's mate, third class, and 
 that he was entitled to citizenship reenlistment 
 pay (longevity pay under General Order No. 
 34 of 1906), and continuous-ser\dce pay, and 10 
 per cent increase on said total pay. (20 Comp. 
 Dec, 361; see note to sec. 1573, R. S., as to 
 honorable-discharge gratuity and continuous- 
 service pay.) 
 
 Enlisted men of the Navy who extend their 
 enlistments under the provisions of the act of 
 August 22, 1912 (37 Stat., 331), are not entitled 
 to the travel allowance authorized by the act 
 of June 29, 1906 (34 Stat., 555), at the expira- 
 tion of the four-year period for which they 
 originally enlisted, but are entitled thereto at 
 the time they are discharged at the expiration 
 of the extended period, the reason being that 
 the extension of enlistment is a modification of 
 their original enlistment, the extension thereby 
 becoming a part of their enlistment. (20 Comp, 
 Dec, 805, affirming 20 Comp. Dec, 699; see 
 also, 25 Comp. Dec, 610. But see act of June 
 4, 1920, sec. 6, noted below, under "Mileage 
 and transportation on discharge.") 
 
 The travel for which enlisted men of the Navy 
 are entitled to travel allowance on discharge at 
 the expiration of their enlistments as extended, 
 is travel in the United States from place of 
 discharge to place of original enlistment. (20 
 Comp. Dec, 805.) 
 
 An enlisted man of the Navy who surren- 
 dered from desertion and was restored to duty 
 without trial, and who after serving a period of 
 probation was allowed to extend his enlistment, 
 is entitled under such extended enlistment to 
 credit for pay for continuous service and under 
 (Jeneral Order No. 34, his status being the same 
 as though he had not been absent during his 
 term of enlistment. (25 Comp. Dec, 920; see 
 note to sec. 1573, R. S., as to continuous-service 
 pay.) 
 
 The extension of enlistment law granted to 
 enlisted men of the Regular Na\'y the right to 
 continuous-serNdce increase of ])ay and to pay 
 under General Order No. 34 of 1906; and also 
 the right to honorable-discharge gratuity if 
 the period for which the extension was made 
 aggregates four years. (26 Comp. Dec, 33, 34, 
 citing 63 MS. Comp. Dec, 136, and 68 MS. 
 Comp. Dec, 1200.) 
 
 17. Retired enlisted men. — See acts of 
 March 3, 1899, section 17 (30 Stat., 1008); June 
 22, 1906 (34 Stat., 451); March 2, 1907 (.34 Stat., 
 1217); May 13, 1908 (35 Stat., 128); March 3, 
 1915 (38 Stat., 941); August 29, 1916 (39 Stat., 
 591); July 1, 1918 (40 Stat., 719). 
 
 The provision in the order of the President of 
 June 24, 1902, that "each enlisted man of the 
 Navy shall receive 75 cents per month, in ad- 
 dition to the pay of his rating, for each good- 
 conduct medal, pin, or bar" which he shall 
 have been awarded, applies to enlisted men on 
 the retired list, who are entitled to the full 
 amount of the additional pay provided for 
 therein. (9 Comp. Dec, 164, Oct. 27, 1902.) 
 
 The retired pay of an enlisted man under the 
 acts of March 3, 1899, and March 2, 1907, was 75 
 per cent of the pay he was in receipt of at the 
 date of his retirement; and 75 cents per month 
 for each good-conduct medal held by him, 
 and an increase of 10 per cent on the total 
 amount thereof. (Comp. Dec, May 14, 1909, 
 S. and A. Memo. No. 99, p. 1077, citing 9 Comp. 
 Dec, 164; 14 Comp. Dec, 176; and 14 Comp. 
 Dec, 830.) 
 
 The allowances to which retired enlisted 
 men of the Na\'y are entitled are separate from 
 and in addition to the pay to which they are 
 entitled. The term "pay" used in a special 
 statute providing for the retirement of an en- 
 listed man with the retired "pay" of liis rating 
 does not include allowances. (Comp. Dec, 
 May 14, 1909, 99 S. and A. Memo., 1077.) 
 
 The benefits of General Order No. 34, of 1906, 
 are limited by its terms to those men who re- 
 enlist on or after its date. An enlisted man 
 who was retired prior to the date of said order 
 is, therefore, not entitled to additional pay 
 thereunder, nor was said order made applicable 
 to him by \'irtue of the provisions in the act of 
 May 13, 1908 (35 Stat., 128), to the effect that 
 "the pay of all active and retired enlisted 
 men of the Navy is hereby increased ten per 
 centum," and that "the pay of all * * * 
 enlisted men of the Navy now on the retired list 
 shall be based on the pay, as herein provided 
 for, of * * * enlisted men of corresponding 
 rank and service on the active list." (15 
 Comp. Dec, 517.) 
 
 Enlisted men of the Navy, retired under the 
 provisions of the act of March 2, 1907 (34 Stat., 
 1217), are entitled on retirement to three- 
 fourths of the pay they were in receipt of at the 
 date of retirement, together with the allowances 
 of $9.50 per month in lieu of rations and cloth- 
 ing, and $6.25 per month in lieu of quarters, 
 fuel, and light. (18 Comp. Dec, 575.) 
 
 The additional pay authorized for a steward 
 or cook holding a certificate of qualification 
 (G. O. 62, Feb. 7, 1908) is no part of the pay of 
 the rating held by him at the time of retirement, 
 and should not be included in computing his 
 
 872 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1569. 
 
 retired pay under the act of March 2, 1907. 
 (Comp. Dec, Apr. 14, 1914, 158 S. and A. 
 Memo., 3038. Compare, 25 Comp. Dec, 424, 
 noted above, under "Mess attendants and 
 cooks.") 
 
 An enlisted man of the Na^'v retired subse- 
 quent to the act of March 2, 1907(34 Stat., 1217), 
 and thereafter naturalized, is not entitled to be 
 credited to three-fourths of the pay authorized 
 by Executive order of November 27, 1906, in 
 the computation of his retired pay. (20 Comp. 
 Dec, 606; but see, contra, Comp. Dec., Nov. 16, 
 1920. case of James Quinn, G. M. Ic, A. D. No. 
 5207, Navy Dept. file 26252-146 : 2.\ 
 
 A retired enlisted man called into active 
 8er\ice under the act of August 29, 1916 (39 
 Stat., 591), and issued a new permanent ap- 
 pointment as chief petty officer, is not entitled 
 to the present pay and aUowances of the rate 
 to which appointed. (24 Comp. Dec, 79.) 
 
 A retired enlisted man called into active 
 ser\'ice pursuant to the pro^dsion in the act of 
 August 29, 1916 (39 Stat., 591)— that while so 
 employed on active duty such retired enlisted 
 men shall receive ' ' the same pay and allowances 
 they were recei\'ing when placed on the retired 
 list" — is entitled to the present pay of men on 
 the active list of the same rating and of the 
 same length of ser^dce; and is not limited to the 
 identical pay he received pre\'ious to his retire- 
 ment and regardless of subsequent legislation. 
 Where such retired enlisted man was employed 
 in active service on June 1, 1917, he was entitled 
 to the increased pav pro\'ided for enlisted men 
 by the act of May 22, 1917 (40 Stat., 87), which 
 went into effect on June 1, 1917, with reference 
 to all enlisted men in active service on the last- 
 named date. (24 Comp. Dec, 79.) 
 
 The act of May 22, 1917 (40 Stat., 87), pro- 
 \-iding for increased pay, commencing June 1, 
 1917, for enlisted men of the Navy in active 
 8er^'ice during the present war, is not applicable 
 to enlisted men retired since June 1, 1917. (24 
 Comp. Dec, 116.) 
 
 The rule is well understood that if the pay of 
 the rank or grade on the active list is changed, 
 it effects a change in the pay of enlisted men 
 on the retired list holding that rank or grade. 
 But this does not apply to exceptional pay or 
 increase of pav for special service. (24 Comp. 
 Dec, 116.) 
 
 The retired pay of enlisted men should be 
 computed upon their regular ordinary pay, and 
 not include additional pay allowed for excep- 
 tional duty or special services. (Comp. Dec, 
 Apr. 14, 1914, 158 S. and A. Memo., 3038.) 
 
 Additional pay allowed coxswains by General 
 Order No. 20 of January 1, 1901, should not be 
 included in computing retired pay. (Comp. 
 Dec, May 27, 1914, 1.59 S. and A. Memo., 3073.) 
 
 By act of July 1, 1918 (40 Stat., 719), it was 
 provided that retired enlisted men recalled 
 into active service shall be eligible for promo- 
 tion and "shall be entitled to the pay and 
 benefits of continuous service of such rank and 
 for such length of time as he is or has been 
 employed in active ser\ice, and when relieved 
 of active service shall retain upon the re- 
 tired list the rank and service held by him at 
 the time of such relief, %rith the pay and allow- 
 ances of such rank on the retired list." Held, 
 that, broadly speaking, "continuous-service'' 
 
 pay includes any pay or gratuity which is 
 taased upon the element of continuity in the 
 service of enlisted men; so defined, continuous- 
 service pay includes the so-called honorable- 
 discharge gratuity, since the payment of such 
 gratuity is dependent on continuity of service; 
 it also includes additional pay allowed under 
 General Order No. 34 of 1906, as well as con- 
 tinuous-service pav proper allowed by act of 
 August 22, 1912 (noted under sec. 1573, R. S.). 
 Fiu-ther held, that the provision in the act of 
 July 1, 1918, provides in effect for a constructive 
 reenlistment when the enlisted man has served 
 the iinexpired portion of the enlistment in 
 which he was serving when retired. Accord- 
 ingly, retired enlisted men of the Navy who are 
 recalled to active service and who complete a 
 period of service equal to the unexpired term 
 of their enlistment are entitled, when otherwise 
 qualified, to continuous-service pay proper, 
 honorable-discharge gratuity, and pay under 
 General Order No. 34 of 1906, whether the con- 
 structive reenlistment be considered as operat- 
 ing for a term of four- years or for the duration 
 of the existing war. (25 Comp. Dec, 440. 
 Compare, 26 Comp. Dec, 565, noted above, 
 under "Longevity pay, General Order No. 34.") 
 
 Retired enlisted men of the Navy who are 
 recalled to active duty and who, upon release 
 therefrom, are orderecl to their homes, are not 
 entitled to travel pay under the act of February 
 28, 1919 (40 Stat., 1203), but only to transporta- 
 tion in kind from their homes to the place to 
 which called for active duty and from such 
 place to their homes, when released from such 
 duty. (26 Comp. Dec, 21.) 
 
 Retired enlisted men of the Navy called to 
 active duty under the act of July i, 1918 (40 
 Stat., 719), and reheved therefrom on or subse- 
 quent to July 11, 1919, are entitled to credit 
 for the increase of pay authorized by the act 
 of July 11, 1919 (41 Stat., 140), in computing 
 their pay on the retired Hst. (26 Comp. Dec, 
 478.) 
 
 Enlisted men of the Navy who were not on 
 active duty during the period from July 11, 
 1919, to June 30, 1920, inclusive, are not entitled 
 to credit for the war increase of pay authorized 
 by the act of July 11, 1919 (41 Stat., 140), in 
 computing their pay on the retired list. (27 
 Comp. Dec, 481.) 
 
 18. Men detained after expiration of 
 enlistment. — See notes to sections 1418, 1422, 
 and 1426, Revised Statutes. 
 
 An enlisted man in the Navy who was ap- 
 pointed as mate and continued to seiwe as such 
 after the expiration of his term of enlistment, 
 without receiving a discharge, is still in the 
 service and entitled to his discharge, and may 
 be permitted to reenlist with the benefit of con- 
 tinuous service under article 839 of the Navy 
 Regulations of 1905. (26 Op. Atty. Gen., 319.) 
 
 The period of detention beyond the expira- 
 tion of the term of service of an enlisted man 
 of the Navy undergoing treatment in a hospital 
 is to be considered as for the convenience of the 
 Government, and the man is entitled to pay 
 to and including the date of his actual discharge. 
 (26 Comp. Dec, 447, modifying 26 Comp. Dec, 
 128.) 
 
 An enlisted man remains in the service until 
 receipt of his discharge, or until such action is 
 
 873 
 
Sec. 1569. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 taken as \\\\\ render him legally chargeable 
 with notice thereof, notwithstanding the expi- 
 ration of his term of enlistment during his ab- 
 Bence on a furlough granted at his own request. 
 (2 Comp. Dec, 94; 27 Comp. Dee., 784.) 
 
 The right of a soldier to jjay for service after 
 the expiration of his term of enlistment is not 
 expressly provided for by any statutory pro- 
 vision. The Government has no authority to 
 hold a soldier to service after the expiration of 
 his term of enlistment, except that arising from 
 an exigency of the serv-ice or the delay incident 
 to the muster out of troops; at least in the latter 
 case the soldier is entitled to pay during the 
 period of detention, as an incident to his term 
 of enlistment, and at the rate to which he was 
 entitled at the expiration thereof. 7 Comp. 
 Dec, 391.) 
 
 A deserter from the Navy, upon his return to 
 duty and assigimient to a hospital for treatment, 
 is entitled to pay computed upon the base pay 
 prescribed by act of ]\lay 18, 1920 (41 Stat., 
 602), from the date of his return, if after January 
 1, 1920, to date his enlistment was due to 
 expire, and at the same rate thereafter, to and 
 including the date of his actual discharge. (27 
 Comp. Dec, 541). 
 
 Where an enlisted man of the Marine Corps 
 who deserted therefrom in time of peace, and 
 subsecjuently returned to his organization, 
 after the expiration of his enlistment but within 
 two years from the latter date, and was restored 
 to duty without trial, his organization then be- 
 ing in France operating under the Army and 
 subject to Army regulations, held, that such 
 restoration to and acceptance of duty is a con- 
 Btructive reenlistment or extension of enlist- 
 ment, and credit for pay should be allowed 
 from the date of return to military control. (25 
 Comp. Dec, 881.) 
 
 A con\icted deserter, restored to duty on 
 probation after expiration of his enlistment in 
 the Na\'y, is entitled to pay for services ren- 
 dered while on probation. (Comp. Dec, Nov. 
 20, 1908, 93 S. and A. Memo., 896.) 
 
 An enlisted man remaining in the service 
 xmder an illegal extension of enlistment is en- 
 titled to pay under his original enlistment, 
 notwithstanding that it had previously expired. 
 (Comp. Dec, June 6, 1914, 160 S. and A. Memo., 
 3255.) 
 
 An enlisted man of the United States Navy 
 captured and separated from his vessel in con- 
 sequence of an attack by a British vessel in 
 1807, and held by the British for a period of 
 five years, when he was released and returned 
 to his vessel, held, entitled to be paid his wages 
 by the United States for the total period of five 
 years, although the enlistment in which he was 
 serving at the time of his captm-e was for a 
 period of only one year. (Straughan v. U. S., 
 1 Ct. Cls., 324.) 
 
 An enlisted man of the Navy whose enlist- 
 ment expires while he is in confinement serving 
 sentence of a naval court-martial is not enti- 
 tled to be credited with pay after the expira- 
 tion of his enlistment; he is thereafter held in 
 obedience to the sentence of the court-martial, 
 but such imprisonment can not be regarded as 
 holding him in the naval service within the 
 meaning of any law entitling him to receive 
 pay for such services, notv\ithstanding that his 
 
 discharge is not delivered to him until exjnra- 
 tion of his term of imprisonment. (9 Comp. 
 Dec, 256.) 
 
 19. Fraudulent enlistment. — See notes to 
 sections 1419 and 1420, Re\ised Statutes. 
 
 It is well established that an enlisted man 
 whose enlistment is procured by fraud, unless 
 the Government waives the objection and 
 allows the enlistment to stand, is not entitled 
 to any arrearages of pay or allowances. (14 
 Comp. Dec, 267, citing 12 Comp. Dec, 326, 328.) 
 
 Whether a man securing his enlistment by 
 fraud shall be discharged for that reason or re- 
 tained in the service rests in the sound discre- 
 tion of the executive officer, regardless of his 
 indebtedness to the Government. A paymas- 
 ter should, for his own protection, upon the 
 discovery of fraud in an enlistment, suspend 
 payments until it is knowoi from the proper 
 authority whether the enlistment shall be 
 terminated and the man discharged on account 
 of the fraud, or whether he shall, notwithstand- 
 ing, be retained in the service. If he is to be 
 discharged for the fraud, no further payments 
 should be made; if he is to be retained in the 
 service, credit should be given him and pay- 
 ments made as though no fraud had occurred 
 in his enlistment. (14 Comp. Dec, 267.) 
 
 Pay and allowances of deserter who fraudu- 
 lently reenlists: See note to section 1420, 
 Revised Statutes. 
 
 Pav'ment of death gratuity in case of deserter 
 who fraudulently enlists and dies v\ithout dis- 
 covery of the fraud: See note to section 1420, 
 Revised Statutes. 
 
 WTiere an enlisted man convicted of fraudu- 
 lent enlistment and sentenced to imprisonment 
 and dishonorable discharge is restored to duty 
 on probation by order of the Secretaiy of the 
 Navy, execution of the sentence being sus- 
 pended dming the probationary period v\ith a 
 view to its ultimate remission should his con- 
 duct warrant, held, that such man is entitled to 
 pay wiiile serving on probation, the same as if 
 said sentence did not exist; but he is not en- 
 titled to be paid any balance due liim at the 
 time of the sentence unless and until the 
 sentence be unconditionally remitted after the 
 probationary period. (13 Comp. Dec, 723.) 
 
 20. Mileage and transportation on dis- 
 charge. — See note to section 1422, Revised 
 Statutes; notes above, under ''Retired enlisted 
 men," "Men furloughed without pay," "Men 
 extending enlistments," and "Men transferred 
 to Fleet Naval Reserve"; note below, under 
 "Waiver of pay or allowances " ; note to section 
 1556, Revised Statutes, under "Naval Reserve 
 Force," and act of March 3, 1901 (31 Stat., 
 1030); see also act of June 3, 1916, section 126 
 (39 Stat., 217), as amended and reenacted by 
 act of February 28, 1919, section 3 (40 Stat., 
 1203), which is the general law providing for 
 travel allowance on discharge. 
 
 WTiere, by inadvertence, an enlisted man of 
 the Navy, on his application therefor, was not 
 furnished transportation to his home on dis- 
 charge on medical survey, for which provision 
 was made by the appropriation act of March 3, 
 1901 (31 Stat., 1030), and he paid his own fare, 
 he is entitled to reimbursement therefor not to 
 exceed the cost to the general public. (8 
 Comp. Dec, 377.) 
 
 874 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1660. 
 
 An enlisted man of the Navy whose home is 
 in Porto Rico is a resident of the United States, 
 mthin the meanins; of the pro\T.sion in the act of 
 March 3, 1903 (32 Stat., 1178), for the transpor- 
 tation to their homes of enlisted men of the 
 Navy on discharge from the ser\-ice. (11 Comp. 
 Dec, 336.) 
 
 An enlisted man of the Na\'y who reenlisted 
 upon his discharge on account of expiration of 
 enlistment, and did not perform actual travel 
 between the place of his discharge and the 
 place of his enlistment, is entitled imder the 
 act of June 29, 1906 (34 Stat., 555), to travel 
 allowance at the rate of four cents per mile for 
 travel in the United States between said points. 
 (13 Comp. Dec, 50.) 
 
 An enlisted man who reenlisted immediately 
 on the expiration of a prior enlistment does not 
 become entitled, under the act of June 29, 1906 
 (34 Stat., 555), on his discharge from such re- 
 enlistment, to travel allowance to the place of 
 liis preceding enlistment. (13 Comp. Dec, 
 526.) 
 
 The travel allowance for travel in the United 
 States to which enlisted men of the Navy are 
 entitled under the_ act of June 29, 1906 (34 
 Stat., 555), when discharged at a foreign port, 
 should be computed from the nearest regular 
 port of arrival in the continental limits of the 
 United States to the place of enlistment. (13 
 Comp. Dec, 689.) 
 
 The act of March 3, 1909 (35 Stat., 755), gives 
 the right to enlisted men of the Navy, when 
 discharged on medical surv^ey, to transporta- 
 tion to their homes at Government expense; 
 but such right must be availed of at the time of 
 discharge or Avithin a reasonable time there- 
 after. (16 Comp. Dec, 555.) 
 
 The place of discharge from which travel 
 allowance of an enlisted man is computed under 
 the act of June 29, 1906 (34 Stat., 555), is the 
 place at which the discharge was delivered and 
 received by him, pro\dded he is on duty at that 
 place, and not necessarily the place of its issu- 
 ance. (19 Comp. Dec, 565.) 
 
 Travel from Alaska to the State of Washing- 
 ton is "travel in the United States," Avithin 
 the meaning of the authorization for the pay- 
 ment of a travel allowance, under the act of 
 June 29, 1906 (34 Stat., 555). (22 Comp. Dec, 
 183.) 
 
 Where a man presented himself at a certain 
 place for enlistment, and there took the in- 
 itial steps toward entering the ser\dce, he is 
 to be regarded, with reference to travel al- 
 lowance on discharge, as haAT.ng been enlisted 
 at that place, although for the convenience 
 of the Goveriunent he was transported to 
 another place before executing the formal 
 contract of enlistment and taking the oath 
 of allegiance. (23 Comp. Dec, 248.) 
 
 The statement or affidavit of an enlisted 
 man as to his actual bona fide home or res- 
 idence would not be sufficient evidence in 
 all cases upon which to decide the question 
 of the amount of travel pay to which he is 
 entitled under the act of February 28, 1919 
 (40 Stat., 1203). No general rule may be laid 
 down for the determination of the place to 
 which travel pay should be allowed, but each 
 case should be decided upon its merits. (25 
 Comp. Dec, 792.) 
 
 Whether or not an enlisted man intends to 
 make the travel to the place declared to be 
 his "actual bona fide home or residence," 
 to which he is paid travel pay on discharge, 
 as provided by the act of February 28, 1919 
 (40 Stat., 1203), is immaterial, so far as pay- 
 ment is concerned. (25 Comp. Dec, 792.) 
 
 Enlisted men who nave been honorably 
 discharged since November 11, 1918, should 
 be paid by disbursing officers as provided in 
 the act of February 28, 1919 (40 Stat., 1203), 
 travel pay at 5 cents per mile fi'om the place 
 of discharge to the place of original muster 
 into the service, and if the place claimed as 
 actual bona fide home or residence be at a 
 greater distance the enlisted man may present 
 his claim for the difference between that 
 amount and the amount paid to the proper 
 auditor, by whom the eNddence as to his home 
 or residence may be considered and the amount 
 found due mav be certified for pajonent. 
 (25 Comp. Dec!, 792.) 
 
 Under the act of Februaiy 28, 1919 (40 Stat., 
 1203), an enlisted man whose bona fide home 
 or residence is in the interior of a foreign 
 country is entitled, in addition to the allow- 
 ance for necessary travel in the United States, 
 to be furnished transportation and subsistence 
 for the sea travel involved, and 5 cents per 
 mile from the nearest port in the foreign coun- 
 try to his home or residence therein. (25 
 Comp. Dec, 950.) 
 
 Where enlisted men are discharged under 
 an agreement to reenlist they are not entitled 
 to travel allowance at the rate of 5 cents per 
 mile provided by the act of Februaiy 28, 1919 
 (40 Stat., 1203). (26 Comp. Dec, 21.) 
 
 Any enlisted man discharged from any 
 branch of the naval service for the purpose of 
 reenlisting in the Navy or Marine Corps, or 
 who shall extend his enlistment therein, shall 
 be entitled to travel pay as authorized by act 
 of Februarv 28, 1919" (40 Stat., 1203). (Act 
 June 4, 1920, sec 6, 41 Stat., 836.) 
 
 The act of June 4, 1920, section 6 (41 Stat., 
 836), applies only to men who were in the 
 ser\dce on November 11, 1918. (27 Comp. 
 Dec, 305; 27 Comp. Dec, 32.) 
 
 The words "honorably discharged" which 
 are used in the act of February 28, 1919 (40 
 Stat., 1203), as a condition precedent to the 
 allowance of mileage to enlisted men of the 
 Navy, are not used in the technical sense 
 which they have acquired in the NaAy, but 
 are used in the same broad sense with ref- 
 erence to the Navy that they have with ref- 
 erence to the Army, thus including all dis- 
 charges under which the holder may be re- 
 garded by the War and Na\y Departments 
 and military men of the branch in question 
 as leaAdng the service in an honorable manner. 
 (File 9209-114, Mar. 11, 1919; C. M. O. 114, 
 1919, p. 18; file 9209-114:45, Feb. 10, 1920.) 
 
 An enlisted man who is not dishonorably 
 discharged or discharged without honor, _ but 
 who is discharged under honorable conditions, 
 although the word "honorably" is omitted 
 fi-om the discharge paper may be considered to 
 be honorably discharged within the meaning 
 of the act of February 28, 1919. pro\-iding for 
 travel pav. (25 Comp. Dec, 792; see also 25 
 Comp. Dec, 771, and 25 Comp. Dec, 930.) 
 
 54641°— 22- 
 
 -56 
 
 875 
 
Sec. 1569. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 The act of February 28, 1919 (40 Stat., 1203), 
 provides for furnishing an enlisted man, honor- 
 ably discharged from the Army, Navy, or 
 Marine Corps, with mileage at the rate of 5 
 cents per mile from the place of his discharge 
 to his "actual bona fide home or residence, 
 or original muster into the service, at his 
 option/' and makes similar provision for 
 furnishing mileage to reservists "honorably 
 released from active service." Held, that 
 the word "home" and "residence" are not 
 used s^-nonjTnously in this statute; that the 
 man's actual bona fide home ^vithin the mean- 
 ing of the statute is what is commonly known 
 as his legal residence or domicile, and may be 
 different from his actual resident, to which he 
 may at his option claim mileage; that at the 
 time of his enlistment in the Navy, a man 
 may have been engaged in business and ac- 
 tually resided at a place other than his home, 
 domicile, or legal residence. In such case, 
 under the statute, he may. at his option, 
 claim mileage to the place of his actual res- 
 idence or former emplojinent, or to his home 
 or legal residence. However, to constitute 
 his home or legal residence at a place different 
 from that where he actually resided at the 
 time of enlistment, it must appear that the 
 man did actually reside at some time at the 
 place to which he claims mileage, and if he 
 did not actually reside at such place at the 
 time of his enlistment, it must have been his 
 bona fide home at some time in the past and 
 he must have retained ever since the intention 
 of returning thereto for the purpose of making 
 same his permanent abode. (Kle 9209-114:4, 
 Apr. 5, 1919; C. M. O. 186, 1919, p. 40.) 
 
 A man whose bona fide home waa in Bates- 
 burg, S. C, was employed at Winston-Salem, 
 N. C., and enrolled in the Naval Eeserve 
 Force at Columbia, S. C. He was honorably 
 released from active duty at Charleston, S. C. 
 Held, that there are three places to which the 
 man in this case is entitled, at his option to 
 claim mileage, \dz., first, his actual bona fide 
 home, which is stated to be Batesburg, S. C; 
 second, his actual, bona fide residence at the 
 time of enrollment, which appears upon the 
 facts stated to have been Winston-Salem, N. C. ; 
 and third, his place of "original muster into the 
 ser^dce, " being in this case place of enrollment 
 which is stated to be Charleston, S. C. (File 
 9209-114:4, Apr. 5, 1919; C. M. 0. 186, 1919, 
 p. 40.) 
 
 The words of the statute, allowing mileage to 
 be claimed to place of "original muster into the 
 service, " refer to the place shown by the rec- 
 ords as the man's place of enlistment or enroll- 
 ment under his current contract. (File 9209- 
 114:4, Apr. 5, 1919; CM. O. 186, 1919, p. 40.) 
 
 The act of February 28, 1919 (40 Stat., 1203). 
 is permanent legislation, superseding prior 
 laws for payment of travel allowances on dis- 
 charge from the Army and Navy. (File 9209- 
 114, Mar. 11, 1919; C. M. O. 114, 1919, p. 18; 
 file 9209-114:45, Feb. 10, 1920.) 
 
 TheactofJuly 11, 1919 (41 Stat., 139), author- 
 izing the issuance of honorable discharges and 
 the payment of mileage in certain cases of en- 
 listed men who have served in the war with 
 the German Government, did not repeal the 
 prior permanent law of February 28, 1919 (40 
 
 Stat., 1203), or restrict the scope of said prior 
 law. (File 9209-114:4-5, Feb. 10, 1920.) 
 
 Travel allowance on discharge should be 
 paid to enlisted men of the Navy, under the 
 act of February 28, 1919 (40 Stat., 1203), irre- 
 spective of their indebtedness to the Govern- 
 ment at the time of discharge. (File 9209- 
 114:5, Apr. 11, 1919, citing 18 Comp. Dec, 621 
 and 8 Comp. Dec, 624.) 
 
 21. Clothing bounty on enlistment.— 
 By act of March 1, 1889 (25 Stat., 781), it was 
 pro\-ided that "in order to encourage the en- 
 listment of boys as apprenctices in the United 
 States Navy, the Secretary of the Navy is 
 hereby authorized to furnish as a bounty to 
 each of said apprentices after his enlistment, 
 and wHQn first received on board of a training 
 ship, an outfit of clothing not to exceed in value 
 the sum of $45. " The language of this statute, 
 both as to the classes of persons included and 
 the value of the clothing outfit, was broadened 
 from time to time by subsequent appropria- 
 tions for the naval ser\-ice, until proA-ision is 
 now annually made for furnishing "outfits for 
 all enlisted men and apprentice seamen of the 
 Na\'y on first enlistment, at not to exceed §100 
 each." (See, e. g., acts of July 11, 1919, 41 
 Stat., 135, and June 4, 1920, 41 Stat., 815.) 
 
 By act of March 3, 1915 (38 Stat., 932), it was 
 pro\ide(i ' ' that hereafter the Secretary of the 
 Na\'y is authorized to issue a clothing outfit to 
 all enlisted men serving in their second en- 
 listment who failed to receive an outfit of the 
 value authorized by law on their first enlist- 
 ment, or who, ha^dng received such outfit, 
 were required to refund its value on account of 
 discharge prior to expiration of enlistment: 
 Provided further, That the net cost to the Gov- 
 ernment of clothing outfits furnished any one 
 enlisted man shall not exceed S60. " 
 
 By act of June 29, 1906 (34 Stat., 556), it was 
 pro\T-ded "that hereafter the Secretary of the 
 NaAy may, in his discretion, require the whole 
 or a part of the cost of outfits allowed upon en- 
 listment to be refunded in cases where men are 
 discharged during the first six months of enlist- 
 ment for any cause other than disability in- 
 curred in line of duty. " 
 
 By act of March 2, 1907 (U Stat., 1176), it was 
 pro%T.ded ' ' that the Secretary of the Na\'y may, 
 in his discretion, require the whole or a part of 
 the bounty allowed upon enlistment to be 
 refunded in cases where men are discharged 
 during the first year of enlistment by request 
 for inaptitude, as undesirable, or for disability 
 not incurred in line of duty. " 
 
 The whole purpose of the act of March 1, 
 1889 (25 Stat., 781), pro\-iding clothing bounty 
 on enlistment, was to encourage the enlistment 
 of boys as apprentices in the United States 
 Na\'y; the Secretary of the Na\'y has no discre- 
 tion to furnish bounty in one case and decline 
 to furnish it in another. (25 Op. Atty. Gen., 
 270.) 
 
 Regulations of the Secretarj^ of the Na^-y, 
 requiring refund of the clothing bounty, or any 
 portion thereof, in case an apprentice is dis- 
 charged ^\•ithin a year after his enlistment for 
 disability not incurred in line of duty, are 
 inconsistent with law and void. (25 Op. Atty 
 Gen., 270. Note: This opinion was rendered 
 
 876 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1569. 
 
 prior to the statutory enactments of 1906 and 
 1907, above quoted, with respect to refund of 
 clothing outfit.) 
 
 An enlistment in the Navy for temporary 
 ser^dce is not the first enlistment within the 
 meaning of the act of March 1, 1889 (25 Stat., 
 781), and the naval appropriation acts pro\'id- 
 ing for the giving of outfits of clothing as a 
 bounty on first enlistment of all enlisted men 
 and apprentice seamen of the Navy. (19 
 Comp. Dec, 587.) 
 
 The promulgation of a Navy regulation to the 
 effect that checkages of cost of clothing outfit 
 furnished to any enlisted man of the Navy on 
 first enlistment shall be made against his ac- 
 count if discharged within the first six months 
 of such enlistment does not preclude the Sec- 
 retary of the Navy from the exercise of the dis- 
 cretion conferred on him by the act of June 29, 
 1906 (34 Stat., 556), in each case coming within 
 such statute. (19 Comj). Dec, 741.) 
 
 An enlisted man who is given a bad-conduct 
 discharge and subsequently reenlists is not 
 entitled to receive a clothing outfit as of a first 
 enlistment. (20 Comp. Dec, 856. This de- 
 cision was prior to the act of Mar. 3, 1915, above 
 quoted, authorizing clothing outfits on second 
 enlistment in certain cases.) 
 
 For other cases, see notes above, under ' ' Pay 
 of insular force," and "Men furloughed mth- 
 out pay." 
 
 22. Deposit of savings. — See note above, 
 vmder ''Men extending enlistments." 
 
 The act of February 9, 1889 (25 Stat., 657), 
 "to provide for the deposit of the savings of 
 seamen of the United States Navy, " does not 
 extend to enlisted men of the Marine Corps. 
 (19 0p. Atty. Gen., 616.) 
 
 Pa\Tnasters of the Navy may receive from 
 enlisted men or petty officers for deposit, under 
 the act of February 9, 1889 (25 Stat., 657), ac- 
 cmnulated savings of any amount, pro-vided 
 they represent the earnings of such a person as 
 an enlisted man or petty officer in the United 
 States Navy, notwithstanding that they may 
 include accumulated savings from previous 
 terms of enlistment. (21 Op. Atty. Gen., 498.) 
 
 The act of February 9, 1889 (25 Stat., 657), 
 providing for deposits of savings of enlisted men 
 of the Navy and exempting such deposits from 
 liability for their debts, does not apply to debts 
 due the Government, and such debts should be 
 set-off against said deposits. (16 Comp. Dec, 
 566.) 
 
 When it appears that an enlisted man of the 
 Navy has been dishonorably discharged after 
 serving a term of imprisonment for desertion, 
 that at the time of his discharge the fact that 
 there was due him a sum deposited was inad- 
 vertently overlooked, and that upon discharge 
 he was fiu-nished, under authority of the acts of 
 February 16, 1909 (35 Stat., 622), and March 3, 
 1909 (35 Stat., 756), a cash gratuity and trans- 
 portation, the amount of such gi-atuity, trans- 
 portation, and any other indebtedness due the 
 Government at the time of his discharge 
 should be set-off against the sum deposited to 
 his credit. (16 Comp. Dec, 566.) 
 
 Enlisted men of the Navy temporarily war- 
 ranted or commissioned under the act of May 
 22, 1917 (40 Stat., 84), being thereby, during the 
 continuance of such appointment, discharged 
 
 from service as enlisted men and entitled to 
 receive all pay and allowances due them as 
 such, may legally be paid the moneys which 
 they have on deposit at the time of being war- 
 ranted or commissioned. (24 Comp. Dec, 
 179; for other cases, see note to sec. 1409, R. S., 
 under "Deposit accounts of mates and warrant 
 officers," note to sec. 1417, R. S., under "En- 
 listed men furloughed mthout pay," and note 
 above, under "Men transferred to Fleet Naval 
 Reserve.") 
 
 Members of the Naval Reserve Force when 
 released from active duty should be repaid 
 deposits with interest thereon. (Comp. Dec, 
 July 3, 1917, 197 S. and A. Memo., 4302.) 
 
 23. Waiver of pay or allowances. — See 
 note to section 1422, Revised Statutes, under 
 "Transportation may be waived," and note to 
 same section under "Additional pay can not be 
 waived;" and see cases noted under section 
 1556, Re^^sed Statutes, under "Waiver of pay." 
 
 An enlisted man of the Navy who, in con- 
 sideration of his being allowed to remain on his 
 vessel, then about to proceed to Asiatic waters, 
 gives a waiver of all claim to transportation 
 home should he refuse to reenlist and be dis- 
 charged in a foreign port, can not maintain an 
 action for the value of such transportation. 
 (Hunt V. U. S., 38 Ct. Cls.,_ 135.) 
 
 Power to discharge a soldier upon the latter's 
 request is a discretion vested in the President 
 and exercised by him through the Secretary 
 of War. It is essential to the due exercise of 
 this discretion that he have power to exercise it 
 upon conditions prescribed by himself; and 
 this power the judiciary does not desire to 
 question or curtail. Accordingly, held, that 
 where the Secretary of War authorized the dis- 
 charge of an enlisted man who had unsuccess- 
 fully instituted proceedings in the civil courts 
 to have his enlistment canceled, and as a condi- 
 tion to such discharge required that the man 
 make good all indebtedness due by him to the 
 United States; and the man accepted the terms 
 of the release offered, paid what the Govern- 
 ment claimed of him, and left the service; 
 there was an implied agreement on the part of 
 the soldier that he would assert no claim for 
 compensation against the United States; he 
 waived some supposed rights in order to secure 
 other and substantial advantages himself; and 
 he was not entitled thereafter to pay or allow^- 
 ances from the United States for the time that 
 his litigation was pending in the civil courts 
 and he rendered no service to the Government. 
 (Grimley v. U. S., 32 Ct. Cls., 285.) 
 
 An apprentice of the Navy, having been 
 transferred from one vessel to another, upon his 
 request and upon his waiver of his right, on 
 discharge in a foreign port, to transportation to 
 the United States, he is not entitled to reim- 
 bursement of the cost of such transportation 
 procured by himself. (9 Comp. Dec, 5.) 
 
 24. Sixty-dollar bonus on discharge. — 
 Under the act of February 24, 1919, section 
 1406 (40 Stat., 1151), authorizing payment of 
 $60 to men discharged under honorable condi- 
 tions, and who served in the military or naval 
 forces of the United States during the World 
 War, held, that the separation from the service 
 of enlisted men by discharge should in all cases 
 be considered as ' ' under honorable conditions,'' 
 
 877 
 
Sec. 1571. 
 
 I't. J. REVISED STATUTES. 
 
 The Na^/y. 
 
 except when the certificate or order of discharge 
 recites facts prechiding the presumption of 
 honoral)le conditions. (25 Comp. Dec, 771.) 
 
 I'ndcr section I4()(j of the act of I'^ebruary 24, 
 1919 (40 Stat., 1151), the discharge contem- 
 plated is one which effects a separation from 
 the service, and not a discharge given in the 
 regular course of procediu'e, solely for the pur- 
 pose of enal)ling the person to reenter the serv- 
 ice in another branch or subdiiision therefo. 
 (25 Comp. Dec., 790.) 
 
 The aforesaid bonus can not be paid on the 
 date an enlistment is due to expire, in cases 
 where the enlisted man has agi'eed to extend 
 his enlistment (25 Comp. Dec, 986); but may 
 be paid on the discharge of such man after the 
 expiration of such extension. (26 Comp. 
 Dec, 138.) 
 
 The bonus may be paid to enlisted men who 
 voluntarily reenlist after discharge, but not 
 where the discharge is conditioned upon reen- 
 listment. (25 Comp. Dec, 930.) And it can 
 
 not be paid to men transferred from the Na\'al 
 Reserve Force to the Regular Navy, to serve 
 the unexpired term of their enrollment, pur- 
 suant to act of July 11, 1919 (41 Stat., 139). 
 (26 Comp. Dec, 33.) 
 
 Any enlisted man discharged from any 
 Ijranch of the naval service for the purpose of 
 reenlisting in the Navy or Marine Corps, or 
 who shall extend his enlistment therein, shall 
 be entitled to the payment of bonus authorized 
 by act of February 24, 1919, section 1406. (Act 
 June 4, 1920, sec. 6, 41 Stat., 836.) 
 
 The act of June 4, 1920, section 6, above 
 quoted, applies only to persons who were in the 
 service on November 11, 1918. (27 Comp. 
 Dec, 305; 27 Comp. Dec, 32.) 
 
 25. Attachment of pay by creditors. — 
 See Buchanan v. Alexander (4 How., 19), 
 noted under section 1430, Revised Statutes. 
 
 26. Allotments of pay. — See sections 1430 
 and 1576, Revised Statutes, and notes thereto. 
 
 Sec. 1570. [Additional pay for serving as firemen.] Every seaman, lands- 
 man, or marine who performs the duty of a fireman on board any vessel of war 
 shall be entitled to receive, in addition to his compensation as seaman, lands- 
 man, or marine, a compensation at the rate of 33 cents a day for the time he 
 is employed as fu'eman. 
 
 three cents a day for the time he is employed 
 as fireman or coal-heaver." — (1 Mar., 1869, c. 
 48, s. 2, V. 15, p. 280.) 
 
 Applicable to insular force. — ^Members of 
 the insular force are entitled to the extra pay 
 pro\'ided by section 1570, Re\ised Statutes, 
 while performing the duty of a fireman on board 
 a vessel of war of the United States. (Comp. 
 Dec, Aug. 13, 1910, 114 S. and A. Memo., 1546; 
 see note to sec. 1569, R. S.) 
 
 This section -was expressly amended and 
 reenacted to read as above by act of March 29, 
 1918 (40 Stat., 499). As originally enacted, it 
 read as follows: 
 
 "Sec. 1570. Every seaman, ordinary seaman, 
 or landsman who performs the duty of a fireman 
 or coal-heaver on board of any vessel of war 
 shall be entitled to receive, in addition to his 
 compensation as seaman, ordinary seaman, or 
 landsman, a compensation at the rate of thirty- 
 
 Sec. 1571. [Sea service.] No service shall be regarded as sea service except 
 
 such as shall be performed at sea, under the orders of a Department and in 
 
 vessels employed by authority of law. — (1 June, 1860, c. 67, s. 3, v. 12, p. 27.) 
 
 Additional pay for sea duty: See act of May 
 13, 1908 (35 Stat., 128). 
 
 Section 1571 not repealed. — The Navy 
 personnel act of March 3, 1899, section 13 (30 
 Stat., 1007), which provided that officers of the 
 Navy shall receive the same pay and allow- 
 ances as officers of corresponding rank in the 
 Army, did not repeal or modify Revised Stat- 
 utes, section 1571, defining sea service. (Ryan 
 v. U. S.,38Ct. Cls., 143.) 
 
 There is nothing in the Navy personnel act 
 inconsistent with or repealing Revised Stat- 
 utes, section 1571. (U. S. v. Thomas, 195 
 U. S.,418.) 
 
 Orders of Secretary of the Navy as to 
 what constitutes sea service. — The author- 
 ity of the head of an executive department to 
 issue orders and regulations luider the direction 
 of the President, to have the force of law, is 
 subject to the condition that they conflict with 
 no act of Congress; and an order of the Secre- 
 tary of the Navy that a ser\'ice shall not be a 
 sea service which Congress has directed shall 
 be a sea service is invalid. (U. S. v. Symonds, 
 120 U. S., 46.) 
 
 Congress certainly did not intend to confer 
 authority upon the Secretary of the Navy to 
 diminish an officer's compensation as estab- 
 lished by law, by declaring that to be shore 
 service which was in fact sea service; or to 
 increase his compensation by declaring that to 
 be sea service which was in fact shore service. 
 (U. S. V. Symonds, 120 U. S., 46.) 
 
 The statute does not confer upon the Secre- 
 tary of the Navy, acting alone or by direction 
 of the President, the power to declare a particu- 
 lar service to be shore service if in fact it was 
 performed by the officer "when at sea," imder 
 the orders of the Department, and on a vessel 
 employed with authority of law. (U. S. v. 
 Symonds, 120 U. S., 46; U. S. v. Bishop, 120 
 U.S., 51.) 
 
 Services are to be deemed services performed 
 at sea, not because the Secretary of the Navy 
 has announced that the Department will so 
 regard them, but because they are in fact 
 services performed at sea and not on shore. 
 (U. S. V. Symonds, 120 U. S., 46; U. S. v. 
 Bishop, 120U. S., 51.) 
 
 The Navy Department has no power to dis- 
 regard the provisions of Revised Statutes, sec- 
 tions 1556 and 1571, and either deprive an 
 
 878 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1571. 
 
 officer of sea pay by assigning him to a duty 
 mistakenly qualified as shore duty but which 
 is in law sea duty; or to entitle him to receive 
 sea pay by assigning him to duty which is 
 essentially shore duty and mistakenly qualify- 
 ing it as sea duty. (tl. S. v. Engard, 196 U. S., 
 511.) 
 
 The Secretary of the Navy can not arbitra- 
 rily change, by an order, the character of the 
 duty to be performed by a naval officer; but the 
 fact that he designates a mixed duty as shore 
 duty is an indication of the construction which 
 he places upon it. (McGowan v. U. S., 36 Ct. 
 Cls., 63.) 
 
 The burden of proof rests on an officer seeking 
 sea pay to disclose the character of the ser\-ice 
 rendered, especially where the order assigning 
 him to duty designates it as shore duty. (Cor- 
 wine V. U. S., 24 Ct. (Is., 104.) 
 
 When a naval officer on sea duty was assigned 
 to shore duty, a modification of the order, after 
 the ser\ice was performed, by inserting the 
 words "for temporary duty," and the certificate 
 of the department that the omission of the word 
 "temporary" was a clerical error, does not 
 confer a legal right to sea pay on the officer. 
 The Navy Department has not power to fix the 
 character of the service by the tenns of its 
 order. The character of the ser\ice is a ques- 
 tion of fact. (Doyle v. V. S., 46 Ct. Cls., 181, 
 distinguishing Mueller v._ U. S., 41 Ct. Cls., 240, 
 which held that ratification by the Secretaiy of 
 War of an oral order was valid.) 
 
 Vessels in bays, inlets, or other arms of 
 the sea. — The sea pay given to officers of the 
 Navy by Revised Statutes, 1.556, may be 
 earned by services performed under orders of 
 the Navy Department in a vessel employed by 
 authority of law in active ser^^.ce in bays, 
 inlets, roadsteads, or other anns of the sea, 
 under the general restrictions, regulations, and 
 requirements that are incident or peculiar to 
 service on the high seas. (U. S. v. Symonds, 
 120 U. S., 46.) 
 
 Under the third section of the act of June 1, 
 1860 (now sec. 1571, R. S.), hdd, that the words 
 "at sea" are not to be construed literally, as 
 requiring that the vessel must be actually at 
 sea; but that they may properly include an 
 officer who, upon being ordered to duty at sea, 
 reports himself, in obedience to his orders, at 
 the place designated, even though the vessel 
 be Ijing in port and not actually out at sea. 
 (10 Op. Atty. Gen., 191.) 
 
 Trips made down the river, under orders for 
 a sea voyage, and up the river on the return of 
 a vessel from sea, are sea service. (McRitchie 
 V. U. S., 23 Ct. Cls., 23.) 
 
 A naval vessel always afloat on tide water, 
 frequently ordered to sea, at all times ready to 
 obey such orders, the officers and crew messing 
 and sleeping on board and maintaining the 
 regulations and discipline of a man-of-war at 
 sea, is in sea service mthin the intent of the 
 Re\'ised Statutes, section 1556. (McRitchie v. 
 U. S., 23 Ct. Cls., 23.) 
 
 For a naval vessel to come within the phrase 
 "at sea," it is not necessary that she be upon 
 the high seas; it is enough if she be water borne, 
 even at anchor, or tied to a dock. (Wyckoff v. 
 V. S., 34 Ct. Cls., 288.) 
 
 Ser\dce performed on board a vessel of the 
 United States, by order of the Secretary of the 
 Navy, in which the officer is obliged to occupy 
 a room, pay mess bills, etc., as if actually at 
 sea, entitles him to sea pay. (Hannum t.U.S., 
 36 Ct. Cls., 99.) 
 
 The fact that an officer assigned to duty is to 
 take charge of the machinery of another vessel, 
 and that the vessels were at a navy yard, does 
 not render the ser\'ice shore duty. ('Hannimi v. 
 U. S., 36 Ct. Cls., 99.) 
 
 Training ship at anchor and not in com- 
 mission. — It is of no consequence that a 
 naval vessel was, during the period for which 
 sea pay is claimed, in such condition that she 
 could not be safely taken out to sea beyond the 
 mainland. She was a training ship, anchored 
 in Narragansett Bay, during the whole time 
 covered by the claim, and was subject to such 
 regulations as would have been enforced had 
 she been put in order and used for purposes of 
 cruising or as a practice ship at sea. Within 
 the meaning of the law an officer performing his 
 duties as executive officer of the vessel was 
 "at sea' '; not\vithstanding that, by order of the 
 Secretary of the Naw, it was announced that 
 said vessel "will not be considered in commis- 
 sion for sea service." (U. S. v, Symonds, 120 
 U. S.,46.) 
 
 Receiving ship at anchor and not in 
 commission. — Service, under an order of the 
 Secretary of the Navy, by an officer of the 
 Navy as executive officer of a receiving ship, 
 at anchor in port at a navy yard and not in 
 commission for sea service, entitles him to re- 
 ceive pay for sea service. The facts in this 
 case disclose that the vessel has been stationed 
 and anchored at the same navy yard and in the 
 same place for over 12 years; that it has been 
 used as a naval recruiting station ; that there is 
 a roof built over the deck; that the ship is con- 
 nected and communicates -nith shore by a rope; 
 that steam is used only for heating purposes 
 and pumps; that all the anchors have never 
 been taken up at the same time; that she was 
 not in a safe condition for cruising; that the 
 duties performed by the executive officer of the 
 vessel were similar to those of executive officers 
 on cruising ships. (U. S. v. Strong, 125 U. S., 
 656.) 
 
 Receiving ship condemned and stricken 
 from Navy Register. — An officer is entitled 
 to sea pay when ordered to duty on board a 
 vessel used as a receiving ship, notwithstanding 
 that such vessel has been condemned by a 
 board as unfit for a cruiser, and its name stricken 
 from the list of ships in the Navy Register. 
 The fact nevertheless appears that the said 
 vessel is subject to the usual naval routine and 
 put to kindred uses, and that her officers are 
 subject to the same rules as before she was con- 
 demned. Wliere officers are charged with the 
 responsibilities and duties of officers on sea 
 duty, the emoluments follow the responsibili- 
 ties' and duties. (Pierce i'. U. S., 33 Ct. Cls., 
 294.) 
 
 Vessel having no cre'wr but civiHan 
 laborers. — It is sufficient to entitle an officer 
 to sea pay that the vessel on which he is, is em- 
 ployed by authority of law; she need not be in 
 commission or engaged in navigation; her crew 
 
 879 
 
Sec. 1571. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 need not be seamen, but may be a small force 
 of civilian laborers from a dockyard. (Wyckoff 
 V. U. S., 34 Vt. C\8., 2S8.} 
 
 Vessel in reserve with reduced comple- 
 ment.— It is not the location of a ship, but the 
 condition w-ith reference to the sea, qualified 
 by the further condition of an officer's being 
 ''subjected to such restrictions, regulations, 
 and requirements as are incident to service at 
 sea," vrhich determines his right to sea pay. 
 Accordingly, held, that a pa>^naster ordered to 
 a designated station, "for duty on board the 
 Ajax and the other monitors off that place," 
 his orders designating the duty as shore duty, 
 is not entitled to sea pay, the said ships not 
 being in any designated service, but hdng in 
 port, held in reserve for sea service and reduced 
 in complement. (Corwine v. U. S., 24 Ct. 
 Cls., 104.) 
 
 A ship of war afloat, manned, in a serviceable 
 condition, and able to proceed to sea, is in 
 eer\-ice, though she may need more men and 
 stores to make her sea service effective, and 
 although she may be lying in port, held in 
 reserve for sea ser\dce and reduced in comple- 
 ment. An officer on such a vessel is in sea 
 service if he is subjected to the restrictions, 
 regulations, and requirements which are inci- 
 dent to service at sea. (Aulick v. U. S., 27 Ct. 
 Cls., 109, distinguishing Corwine v. U. S., 24 
 Ct. Cls., 104, in that, in the latter case, the 
 officer failed to show that he was subjected to 
 the restrictions, regulations, and requirements 
 incident to sea service.) 
 
 Vessel loaned to State as school ship. — 
 A lieutenant in the Navy assigned, by order of 
 the Secretary of the Navy, to duty as executive 
 officer of a vessel of the United States, furnished 
 by the Secretary to the State of New York as a 
 school ship, is entitled to sea pay as well wliile 
 the vessel is attached to a wharf in the harbor 
 of New York as while she is on a cruise, and 
 although tliis service is called, in the Secretary's 
 order for the officer's detail, "employment on 
 shore duty," and notwithstanding the officer is 
 receiving pay from the State as instructor in its 
 nautical school upon the vessel. (U. S. v. 
 Bamette, 165U. S.,174.) 
 
 Duty on shore in corm^ection with ves- 
 sels. — A naval paymaster on shore duty at a 
 navy yard is not entitled to pay for sea duty, 
 though required by the Secretary of the Navy, 
 in addition to his regular duties, to take charge 
 of the accounts of certain vessels temporarily at 
 anchor off the yard and in conamission for sea 
 service. (Carpenter v. V. S., 15 Ct. Cls., 247.) 
 
 Duty as lighthouse inspector. — An officer 
 of the Navy assigned to duty as a lighthouse 
 inspector, under Revised Statutes, section 4671, 
 and ordered to inspect the light stations in his 
 district, is not entitled to sea pay under section 
 1571, Revised Statutes, while making his tour 
 of inspection, though it be by water and in- 
 volve going to sea. To be entitled to sea pay 
 under section 1571, Rexised Statutes, an officer 
 must be afloat and under orders to perform sea 
 senice. (Schoonmaker v. U. S., 19 Ct. Cls., 
 170.) 
 
 Oflacer at sea, suspended from duty. — A 
 paymaster at sea, but suspended fi'om duty 
 pending an investigation of his accounts, is not 
 
 rendering sea service within the intent of sec 
 
 tion 1571, Rexised Statutes, and is entitled 
 only to waiting-orders pay. While in attend- 
 ance before the court-martial, he is entitled to 
 shore-duty pay; after his court-martial, awaiting 
 the re\iew of the court's proceedings by the 
 President, he is entitled to waiting-orders pay. 
 (Sullivan v. U. S., 32 Ct. Cls., 402^ 
 
 It is not the mere being at sea which entitles 
 an officer to sea pay, but it is his being at sea in 
 such a legal condition as entitles him to the 
 pay incident to that condition. In this case 
 the officer was at sea, in that he was on board a 
 receiving ship under the order of the depart- 
 ment, but he was not at sea within the meaning 
 of the law entitling him to sea pay. He was, 
 by his own fault, without duty and in the dis- 
 charge of no functions; so far as public and 
 efficient services were concerned, ne had no 
 participation in them, and would have been 
 guilty of a further offense if he had attempted 
 to exercise any of his powers as an officer. 
 (Sullivan v. U. S., 32 Ct. Cls., 402.) 
 
 Distinction between "rendering service 
 at sea" and being in "sea service."— There 
 is a distinction between rendering service and 
 being in service; an officer may be in sea service 
 though not rendering service at sea. (Aulick 
 V. U. S., 27 Ct. Cls., 109.) 
 
 An officer sleeping in his berth is not render- 
 ing service, but is nevertheless in service; an 
 officer on shore leave for a few hours while his 
 vessel is in a foreign port is in sea serAice, though 
 not rendering ser\ice; and sea pay does not 
 stop because the officer chances for the moment 
 to be on dry land. And so it is with a vessel. 
 Ships of war, in time of peace, are for the gi-eater 
 part of the time in a condition of idleness. 
 They sail somewhere and do nothing; they sail 
 somewhere else, and again do nothing; they 
 return home, and await orders. A ship of war 
 may pass her entire hf e in a condition of readi- 
 ness to serve, but of never serving. (Aulick v. 
 V. S., 27 Ct. Cls., 109.) 
 
 Vessel on trial trip but not accepted. — 
 Where a vessel is on her trial trip prior to ac- 
 ceptance, and still within the possession and 
 control of the builders, the United^ States, how- 
 ever, having, by the payment of installments, 
 acquired an interest equal to 49 out of 50 parts 
 of the vessel, she must be regarded as practi- 
 cally the oroperty of the Government. (Wil- 
 Hamst'. U. S., 47 Ct. Cls., 186.) 
 
 OflB.cer traveling on vessel as passen- 
 ger. — Section 1571 does not admit of the con- 
 struction that a steamer upon which a naval 
 officer takes passage imder orders of the depart- 
 ment thereby becomes a "vessel employed by 
 authority of law." A person who takes pas- 
 sage upon a steamer, or a seat in a railway 
 carriage, does not "employ" such steamer or 
 carriage in any just sense. (IT. S. v. Thomas, 
 195 U. S., 418.) 
 
 Under section 1571, Revised Statutes, the 
 term "vessels employed by authority of lavv" 
 is restricted to vessels owned_ or otherwise 
 engaged in the Government service; and travel 
 under orders by naval officers upon a merchant 
 vessel is not service within the meaning of that 
 section. (McGowan v. U. S., 49 Ct. Cls., 
 454.) 
 
 Section 1571 recognizes the fact that a naval 
 officer, like a landsman, may be on shore duty 
 
 880 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1571, 
 
 and yet sailing the seas beyond the 3-mile 
 limit. (McGowan r. U. S., 49 Ct. Cls., 454.) 
 
 WTiere an assistant surgeon in the Navy 
 travels under orders, as a passenger, on a United 
 States naval vessel from China to reach an 
 assignment to duty in the Philippine Islands, 
 he is not performing sea serA-ice and is only 
 entitled to shore pay. "^^hile he was traveling 
 under orders, his orders were not to perform 
 sea ser^dce in the sense required to entitle him 
 to sea pay. (Thompson v. U. S., 49 Ct. Cls., 
 459.) 
 
 Where an assistant surgeon in the Navy was 
 ordered by the commander in chief of the 
 Asiatic station to proceed on the U. S. S. Iris 
 and report to the senior squadron commander 
 off Taku, China, for temporary duty with the 
 detachment of marines; and under orders of 
 the senior squadron commander he performed 
 ser\'ices in China with the United States 
 marines, such services were shore duties and 
 not duties at sea; during the period in question 
 he was not attached to and performed no duty 
 on any ship. (Thompson v. U. S., 49 Ct. Cls., 
 459.) 
 
 Mixed duty; which is paramount. — • 
 WTiere the assignment of an officer to duty by 
 the Navy Department expressly imposes upon 
 him the continued discharge of his sea duties, 
 and qualifies the shore duty as merely tem- 
 poraiy and ancillary to the regular sea duty, 
 the presumption is that the shore duty is tem- 
 porary and does not operate to interfere mth or 
 discharge the officer from the responsibilities 
 of sea duties to which he is regularly assigned; 
 and he is entitled to sea pay during the time of 
 such temporary shore duty. (U. S. v. Engard, 
 196 U. S., 511.) 
 
 ■\\Tiere an officer is assigned to the command 
 of a training ship, and of a vessel at a station 
 used as a training ship, and his most arduous 
 and responsible duties are discharged on shore, 
 it must be held that the ship is the incident 
 and the shore the principal. (McGowan v. 
 U. S., 36 Ct. Cls., 63.) 
 
 WTiere the question is one of shore duty or 
 sea ser\ice, the facts in each case must be con- 
 sidered, and where there is a preponderance 
 the service having paramount character must 
 constitute the basis on which to predicate 
 the right of pay. (McGowan v. U. S., 36 Ct. 
 Cls., 63.) 
 
 The fact that the Secretaiy of the NaAy 
 designates a mixed duty as shore duty is an 
 indication of the construction which he places 
 upon it. (McGowan v. U. S., 36 Ct. Cls., 63.) 
 
 A naval officer on shore duty who was as- 
 signed to the temporary command of a vessel 
 in the Coast Survey ser%-ice, but who continued 
 on shore duty and did not live continuously on 
 board the vessel, and was not subject to" the 
 restrictions, _ requirements, or regulations of 
 sea service, is entitled only to shore-duty pay. 
 (Taussig V. U. S.,;38 Ct. Cls., 104.) 
 
 Officers of the Navy may perform duty on a 
 recei\'ing ship which vnll entitle them to sea 
 pay; but only where they wear their uniform 
 when on duty, live and mess on board the ves- 
 sel, and are suljject to all the restrictions and 
 regulations applicable to vessels at sea; but an 
 officer also ha^■ing shore duty, liA-ing and mess- 
 ing on shore in quartei's furnished to him by 
 
 the Government, and presmnably recei\ing 
 the allowances to which Army officers are en- 
 titled, is entitled only to shore-duty pay. 
 (Mahan i;. U. S., 40 Ct. Cls., 36.) 
 
 It is well settled that where a naval officer 
 attached to a vessel and detailed for shore duty 
 is not called upon to perform services ashore 
 incompatible with the performance of his duty 
 on his ship, and the shore services are temporary 
 and not so different in character as to detach 
 him in fact from his vessel, his paramount duty 
 is sea service. (Leach v. U. S., 44 Ct. Cls., 
 , 132.) 
 
 The primary question in the case of a naval 
 j officer, "detailed for special duty on shore," 
 is one of fact; and the court can not determine 
 the character of the duty on shore or the right 
 of the officer to sea pay or shore-duty pay with- 
 out knowing what were the ser\dces rendered 
 on shore, and how far they detached him in 
 fact from his vessel. (Leach v. U. S., 44 Ct. 
 Cls., 132.) 
 
 WTiere an officer of the Navy is assigned by 
 proper authority to sea duty on a vessel at 
 Guam, he can not be considered as "detailed 
 for shore duty beyond seas, " because the naval 
 governor of Guam, by a verbal order, directed 
 him to do duty on shore. (Furlong v. U. S., 
 45 Ct. Cls., 493.) 
 
 Duty performed on shore by a naval officer 
 without ha\ing been detailed for shore duty 
 must be regarded as temporary service per- 
 formed while he officially remains on board 
 the vessel to which he is attached. (Furlong 
 ■y. U. S., 45 Ct. Cls., 493.) 
 
 When a naval officer attached to a vessel 
 and entitled to sea-service pay is ordered by 
 the Secretary of the Navy to report for recriut- 
 ing service ' 'in addition to your present duties, " 
 and he is absent from his vessel on recruiting 
 duty on shore a year, he is not entitled to sea 
 pay though he remains technically attached to 
 his vessel. (Doyle v. U. S., 46 Ct. Cls., 181.) 
 
 An officer entirely relieved from all the re- 
 sponsibilities and discomforts of sea service for 
 more than a year while with a recruiting party 
 on shore can not be regarded as on temporary 
 shore ser\-ice, though technically the order 
 assigning him to recruiting duty did not detach 
 him from his vessel or separate him from sea 
 duty. (Doyle v. U. S., 46 Ct. Cls., 181.) 
 
 Where an officer in the performance of sea 
 duty left his vessel on authorized leave, and 
 without rejoining his vessel or resuming his 
 sea duty thereon was placed on special tempo- 
 rary duty ashore in the Bureau of NaA-igation, 
 he was not, while in the performamce of such 
 temporary duty ashore, in a sea-duty status, 
 and was not entitled to sea-duty pay. (18 
 Comp. Dec, 340.) 
 
 When right to sea pay begins and ends. — 
 The right of a naval officer to sea pay begins 
 when sea service begins, independent of any 
 order of the Navy Department. (Wyckoff v. 
 U. S., 34 Ct. Cls., 288.) 
 
 An officer detached from one vessel and 
 assigned to duty on another, by proper author- 
 ity, is on shore duty while passing fi-om the one 
 to the other, and entitled only to shore-duty 
 pay. (Ryan v. U. S., 38 Ct. Cls., 143.) 
 
 The act of May 13, 1908 (35 Stat., 128), pro- 
 vides that "all officers on sea duty and all 
 
 881 
 
Sec. 1571. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 officers on shore duty beyond the continental 
 limits of the United States shall %vhile so serving 
 receive ten per centum additional of their 
 salaries and increase as above provided, and 
 such increase shall commence from the date of 
 reporting for duty on board ship or the date 
 of sailing from the United States for shore duty 
 beyond the seas or to join a ship in foreign 
 waters." 
 
 An officer in 1867 and 1868 was not entitled 
 to sea pay after being detached from his vessel 
 on a foreign station and ordered to report to the 
 Secretary of the Navy. (Bishop v. U. S., 
 38 Ct. Cls., 473.) 
 
 Wliere an officer of the Navy is detached 
 from sea duty he ceases to be entitled to sea 
 pay, and, generally, increased pay will cease 
 when an officer is detached from service en- 
 titling him thereto. (McCully v. U. S., 42 Ct. 
 Cls., 275.) 
 
 Prior to the act of May 13, 1908, there was no 
 statute gi^^^ng officers a 10 per cent increase in 
 pay subsequent to detachment abroad from 
 eea duty, unless while retm-ning they were 
 actually in the performance of sea duty. 
 Accordingly, the clause in the act of May 13, 
 1908, sa\ing officers of the Navy from reduction 
 in pay and allowances then authorized by law, 
 has no application to a claim for sea pay by an 
 officer after detachment abroad from sea duty 
 and while retm-ning to the United States. 
 (McDonald v. U. S., 48 Ct. Cls., 123.) 
 
 Prior to the act of May 13, 1908, officers of the 
 Navy were entitled to the increased pay for 
 shore duty beyond seas until their return to 
 the United States; and the act of May 13, 1908, 
 did not change the law so as to deprive naval 
 officers of the right to increased pay while re- 
 tmning home upon orders fiom foreign shore 
 duty; the sa^•ing clause in that act preserved 
 the right of naval officers in this respect under 
 laws previously existing. (Gearing v. U. S., 
 46 Ct. Cls., 187; see note to sec. 1556, R. S., 
 vmder "Additional pay for special duty," with 
 respect to "Shore duty beyond seas.") 
 
 The statutory situation is anomalous, pro- 
 viding extra compensation for officers on foreign 
 shore duty from the time of departure from the 
 United States to the time of their return, and 
 in restricting the extra allowance in the case 
 of naval officers on sea service to a period ex- 
 tending only to the time consumed in reaching 
 the assignment for sea duty; but there is no 
 escape fi'om that conclusion, which the express 
 language of the statute prescribes. The ine- 
 quality will not justify the court in departing 
 from the express tenns of the law. (McDonald 
 4). U.S., 48 Ct. Cls., 123.) 
 
 An officer is not entitled to sea-duty pay 
 while aboard a tmnsport en route to the United 
 States after having been detached fi-om sea 
 duty abroad. (McDonald v. U. S., 48 Ct. Cls., 
 123, citing Farenholt v. U. S., 42 Ct. Cls., 114.) 
 
 In United States v. Thomas (195 U. S., 418), 
 the Supreme Court declined to extend the 
 benefits of extra compensation provided for 
 Anny officers for service beyond the limits of 
 the United States, under the acts of May 26, 
 1900 (31 Stat., 211), and March 2, 1901 (31 Stat., 
 903), to naval officers performing sea service 
 imder similar conditions; and doubtless the act 
 of May 13, 1908, allowing increased pay "from 
 
 the date of reporting for duty on board ship or 
 the date of sailing from the United States for 
 shore duty beyond the seas or to join a ship in 
 foreign waters," was enacted with this decision 
 in view. Just why the period of computation 
 in allowing the extra per centmn is so spe- 
 cifically circumscribed is difficult to perceive; 
 nevertheless the express language of tne act so 
 provides, and the express provisions of law 
 must govern. (McDonald v. U. S., 48 Ct. Cls., 
 123.) 
 
 Sea pay allowed for shore duty. — See 
 note to section 1556, Revised Statutes, under 
 "Additional pay for special duty," with re- 
 spect to the pay of the Superintendent of the 
 Naval Academy and of the commandant of 
 the navy yard, Mare Island. 
 
 The duty of the Judge Advocate General of 
 the Navy being shore duty, he was entitled 
 only to shore-duty pay under the act of June 8, 
 1880 (21 Stat., 164), wliich provided that the 
 Judge Advocate General shall have "the rank, 
 pay, and allowances of a captain in the Navy 
 or a colonel in the Marine Corps, as the case 
 may be. " The court knows of no instance 
 where an officer in the Navy is entitled to sea 
 pay and allowances while performing shore 
 duty, except where it is so provided by express 
 statute. (Lemly v. V. S., 28 Ct. Cls., 468.) 
 
 Under the amendatory act of June 5, 1896 
 (29 Stat., 251), which provided that the Judge 
 Advocate General of the Navy should receive 
 the "highest pay of a captain in the Navy," 
 held, that the Judge Advocate General was 
 entitled to the sea pay of a captain. (11 Comp. 
 Dec, 11. For other cases, see note to sec. 421, 
 R. S., relating to pay of chiefs of bureaus in 
 the Navy Department.) 
 
 The words "highest rates of pay_ attached to 
 their respective grades" as used in a special 
 act of Congress, approved July 29, 1886 (24 
 Stat., 346), increasing the pay of certain offi- 
 cers for exceptional shore service, mean some- 
 thing more than "sea pay"; these words 
 entitle the officers concerned to the highest 
 sea pay of their grade, i. e., the rate of pay 
 allowed for sea duty to officers in that grade 
 entitled to the maximum increase for longevity. 
 (Schuetze v. U. S., 24 Ct. Cls., 299.) 
 
 Officers temporarily absent from, their 
 ship. — See note to section 1556, Revised 
 Statutes, under "Absence from duty"; see 
 also note above, imder "Mixed duty, which is 
 paramount." 
 
 An officer attached to a vessel at sea, and not 
 detached from it by competent authority, is 
 entitled to sea jjay wliile temporarily in a 
 naval hospital because of a gunshot wound 
 incurred in the line of duty. (CoUins v. U. 
 S., 37 Ct. Cls., 222.) 
 
 A Navy regulation providing that "an officer 
 temporarily absent from a ship in commission 
 to which he is attached shall continue to re- 
 ceive sea pay" does not contravene section 
 1556, Revised Statutes. (Collins v. U. S., 37 
 Ct. Cls., 222.) 
 
 Where a naval officer is attached to a vessel 
 when ordered to a hospital for treatment, he is 
 entitled to sea pay while in the hospital; but 
 if when orderea to the hospital he is awaiting 
 the arrival of the vessel to which he has been 
 ordered, he is not then attached, and will not 
 
 882 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1573. 
 
 be entitled to sea pay while in the hospital. 
 (Ackley v. U. S., 40 C"t. Cls., 216.) 
 
 Officers of the Navy gi-anted temporary 
 leave of absence from their ships are not, during 
 absence on such leave, on "sea duty," and. 
 therefore are not entitled under the act of May 
 13, 1908, to the 10 per cent additional pay there- 
 in authorized for officers "while so serving." 
 (15Comp._Dec., 656.) 
 
 A commissioned officer of the Navy is not en- 
 titled to the 10 per cent additional pay for sea 
 duty while on leave of absence, even though 
 the leave b e of only one day's duration . ( Comp . 
 Dec, June 8, 1915, 172 S. and A. Memo., 3703.) 
 
 A warrant officer of the Na\y granted leave 
 of absence from duty at sea is entitled, under 
 the act of August 29, 1916 (39 Stat., 578), to 
 full pay at the rate received by him while on 
 sea duty. (23 Comp. Dec, 200. Note: The 
 act of Aug. 29, 1916, provided that "warrant 
 officers shall be allowed such leave of absence, 
 with full pay, as is now or may hereafter be 
 allowed other officers of the United States 
 Navy. ") 
 
 Sea service nonnal duty of naval oflS.- 
 cers. — If Army officers should be allowed 
 increased pay when ordered to sea or to a 
 foreign port, it would not follow that naval 
 officers rec^ving Army pay would be entitled 
 to a like increase, since such service would be 
 wholly exceptional in the case of Army offi- 
 cers, while it is the natural and normal duty of 
 naval officers to engage in sea service, cruise in 
 foreign waters, and lie up in foreign ports. 
 (U. S. V. Thomas, 195 U. S., 418.) 
 
 The normal pay of naval officers under the 
 Navy personnel act of March 3, 1899 (30 Stat., 
 1004), is the higher, i. e., sea service pay; the 
 exceptional pay is for shore service; both are 
 dependent upon the character of the service. 
 (Ryan v. U. S., 38 Ct. Cls., 143.) 
 
 tjnder the Navy personnel act the normal 
 pay of officers in the Navy is sea pay, and the 
 exceptional pay is for shore service; where an 
 officer performs shore duty and receives shore 
 pay, he is not entitled to the normal pay. 
 (Mahan v. U. S., 40 Ct. Cls., 36.) 
 
 Sec. 1572. [Detention beyond term of enlistment. Superseded.] 
 
 This section provided as follows: 
 "Sec. 1572. All petty officers and persons of 
 inferior ratings who are detained beyond the 
 terms of service, according to the provisions of 
 section fourteen hundred and twenty-two, or 
 who, after the termination of their sei'vice, 
 voluntarily re-enter, to serve until the return 
 to an Atlantic port of the vessel to wliich they 
 belong, and until their regular discharge there- 
 from, shall, for the time during which they are 
 so detained or so serve beyond their original 
 terms of service, receive an addition of one- 
 foiu-th of theii' former pay." — (17 July, 1862, c. 
 204, s. 17, V. 12, p. 610.) 
 
 It was superseded by the act of March 3, 
 1875 (18 Stat., 484), which also superseded 
 sections 1422-1425, Revised Statutes, and re- 
 
 enacted, with amendments, the provisions of 
 all these sections as section 1422, Revised Stat- 
 utes. See notes to sections 1422-1425, Revised 
 Statutes. 
 
 Additional pay not pay of rating. — The 
 additional pay to which petty officers and 
 persons of inferior ratings are temporarily en- 
 titled, under the provisions of section 1422 and 
 1572, Revised Statutes, should not be added to 
 their regular rates of pay in computations under 
 a statute (sec. 4631, R. S., par. 5), providing for 
 the distribution of bounty among the officers 
 and crew of a vessel "in proportion to their 
 respective rates of pay in the service." (En- 
 gagement off Santiago Bay, 36 Ct. Cls., 200.) 
 
 For other cases, see notes to sections 1418, 
 1422, and 1569, Revised Statutes. 
 
 Sec. 1573. [Honorable-discharge gratuity and continuous-service pay.] If 
 any enlisted man or apprentice, being honorably discharged, shall reenlist for 
 four years within four months thereafter, he shall, on presenting his honorable 
 discharge or on accomiting in a satisfactory manner for its loss, be entitled to 
 a gratuity of four months' pay equal in amount to that which he would have 
 received if he had been employed in actual service : Provided, That any enlisted 
 man in the Navy whose term of enlistment has been extended for an aggregate 
 of four years shall, after the expiration of the preceding four-year term of 
 enlistment upon which the extension is made and if otherwise entitled to an 
 honorable discharge, be paid the gratuity above provided: And 'provided, 
 That any man who has received an honorable discharge from his last term of 
 enlistment, or who has received a recommendation for reenlistment upon the 
 expiration of his last term of enlistment, who reenlists for a term of four years 
 within four months from the date of his discharge, shall receive an increase of 
 one dollar and thirty-six cents per month to the pay prescribed for the rating 
 in which he serves for each successive reenlistment: And provided further, 
 That an extension of the period of enlistment as hereinbefore authorized, 
 aggregating four years, shall be held and considered as equivalent to continuous 
 
 883 
 
Sec. 1573. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 service with respect to till rights, privileges, and benefits granted for such 
 service pursuant to law." 
 
 This section was expressly amended and 
 reenacted to read as above by act of August 22, 
 1912 {:\7 Stat., 331). As originally enacted it 
 read as follows: 
 
 "Sec. 1573. If any seaman, ordinary seaman, 
 landsman, fireman, coal heaver, or boy, being 
 honorably discharged, shall reenlist for three 
 years, wnthin three months thereafter, he shall, 
 on presenting his honorable discharge, or on 
 accounting in a satisfactory manner for its loss, 
 be entitled to pay, during the said three months, 
 equal to that to which he would have been 
 entitled if he had been employed in actual 
 sendee."— (2 Mar. 1855, c. 136, s. 2, v. 10, 
 p. 627. 7June, 1864, c. ni,v. 13, p. 120.) 
 
 It had previously been amended by joint 
 resohition of June 11, 1896 (29 Stat., 476), 
 which reads as follows: "That the benefits of 
 honorable discharge, as conferred by section 
 fourteen hundred and twenty-six of the Re- 
 A-ised Statutes, and of three months' pay upon 
 reenlistment after honorable discharge, as con- 
 ferred by section fifteen hundred and seventy- 
 three, upon seamen, ordinary seamen, lands- 
 men, firemen, coal heavers, and boys, be, and 
 the same are hereby, extended and made appli- 
 cable to all enlisted persona in the Navy. 
 And all accounts of paymasters who have made 
 payments to enlisted men, not of the classes 
 named in sections fourteen hundred and 
 twenty-six and fifteen hundred and seventy- 
 three of the Re\d8ed Statutes as if they had 
 been included in the provisions of said sections, 
 shall be allowed and passed by the accounting 
 officers of the Treasury as if they had been in- 
 cluded in said sections." 
 
 It was further amended and reenacted 
 by the Navy personnel act of March 3, 1899, 
 section 16 (.30 Stat., 1008), which fixed the term 
 of enlistment in the Naxy at four years, and 
 expressly pro-vided that section 1573, Revised 
 Statutes, be amended to read as follows: "If 
 any enlisted man or apprentice, being hon- 
 orably discharged, shall reenlist for four years 
 mthin four months thereafter, he shall, on pre- 
 senting his honorable discharge or on accounting 
 in a satisfactory manner for its loss, be entitled 
 to pay during the said four months equal to 
 that to which he would have been entitled if 
 he had been employed in actual service; and 
 that any man who has received an honorable 
 discharge from his last term of enlistment, or 
 who has received a recommendation for re- 
 enlistment upon the expiration of his last term 
 of service of not less than three years, who 
 reenlists for a term of four years within four 
 months from the date of his discharge, shall 
 receive an increase of one dollar and thirty-six 
 cents per month to the pay prescribed for the 
 rating in which he serves for each consecutive 
 reenlistment." 
 
 Other modifications of section 1573 
 have been made by the follo\ving enactments: 
 
 Bjr act of August 22, 1912 (37 Stat., 331), 
 provision was made for the discharge of any 
 enlisted man within three months before the 
 expiration of his term of enlistment or extended 
 
 enlistment, "without prejudice to any right, 
 privilege, or benefit that he would have re- 
 ceived, except pay and allowances for the 
 unexpired period not serv-ed, or to which he 
 would then^after become entitled, had he 
 served his full term of enlistment or extended 
 enlistment." 
 
 _ By act of April 25. 1917 (40 Stat., 38), exten- 
 sion of minority enlistments in the Navy and 
 Marine Corps was authorized under similar 
 conditions as provided by law for extending 
 other enlistments. 
 
 By act of August 29, 1916 (39 Stat., 560), it 
 was provided that enlisted men who serve one 
 year at sea shall, in time of peace, if they so 
 elect, be given a discharge without cost; that 
 "an honorable discharge may be granted under 
 this provision, but when so granted shall not 
 entitle the holder, in case of reenlistment, to 
 the benefits of an honorable discharge granted 
 upon completion of an enlistment." This 
 enactment was repealed by act of March 4, 
 1917 (39 Stat., 1171). 
 
 By act of August 29, 1916 (39 Stat., 590), it 
 was provided that "Men who have enrolled in 
 the Fleet Naval Reserve within four months 
 of the date of their discharge from the Regular 
 Navy shall, upon reenlistment in the regular 
 naval service within four months of the date of 
 discharge from the Fleet Naval Reserve, be 
 entitled to the same gratuity and additional 
 pay as if they had reenlisted in the regular 
 naval service within four months of discharge 
 therefrom." 
 
 By act of March 4, 1917 (39 Stat., 1174), it 
 was provided that any former member of class 1 
 of the United States Naval Reserve, estab- 
 lished by act of March 3, 1915 (.38 Stat., 940), 
 who reenlisted in the Navy prior to May 1, 
 1917, shall be held and considered to have 
 reenlisted within four months from the date of 
 discharge from the Navy for the purpose of 
 continuous service pay. 
 
 By act of May 22, 1917, section 3 (40 Stat., 85), 
 it was provided "that enlistments in the Navy 
 and Marine Corps, during such time as the 
 United States may be at war, shall be for four 
 years, or for such shorter period or periods as 
 the President may prescribe, or for the period 
 of the present war." (This enactment amended 
 sec. 1573, R. S. See 25 Comp. Dec, 315, noted 
 below, under "Short-term enlistments." 
 
 By act of July 1, 1918 (40 Stat., 719), it was 
 provided that retired enlisted men recalled to 
 active service shall be entitled to the benefits of 
 continuous ser\'ice for such length of time as 
 employed in active service. (See note below, 
 under "Retired enlisted men.") 
 
 By act of July 11, 1919 (41 Stat., 134), it was 
 pro\'ided that "until June 30, 1920, enlistments 
 in the Navy may be for terms of two, three, or 
 four years, and all laws now applicable to four- 
 year enlistments shall apply, under such regu- 
 lations as may be prescribed by the Secretary 
 of the Navy, to enlistments for "a shorter period 
 with proportionate benefits upon discharge and 
 reenlistment." 
 
 884 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1573. 
 
 By the same act of July 11, 1919 (41 Stat., 
 139), it was pro\'ided that enrolled men of the 
 Naval Reserve Force, who have performed 
 active duty during the war, may be transferred 
 to the Regular Na\'y to serve out the unexpired 
 term of their enrollment, and that men so 
 transferred "shall be entitled to and receive 
 the same pay, rights, privileges, and allow- 
 ances in all respects as now provided by exist- 
 ing law for men regularly discharged and re- 
 enlisted immediately upon expiration of their 
 full four-year enlistment in the Regular Navy 
 or Marine Corps." 
 
 The same act of July 11, 1919 (41 Stat., 139), 
 authorized the issuance of honorable discharges 
 to men who served in the war with the German 
 Government and were discharged, after No- 
 vember 11, 1918, prior to expiration of their full 
 enlistment. 
 
 The said act of July 11, 1919 (41 Stat., 139). 
 provided that men who, after February 3, 1917, 
 and before November 11, 1918, enlisted for 
 four years, shall, upon application to the Sec- 
 retary of the Navy on or before September 1, 
 1919, be held to have enlisted for the duration 
 of the war, and shall, when discharged, be 
 granted an honorable discharge if otherwise 
 entitled thereto; and that any enlisted man so 
 discharged from the Navy, Marine Corps, or 
 Coast Guard, and thereafter reenlisting in the 
 Navy or Marine Corps within four months, 
 under conditions prescribed by law, for a period 
 of four years, "shall be entitled to receive the 
 benefits of the gratuity pay provided by exist- 
 ing law for reenlistments." 
 
 By the same act it was provided that men 
 enlisted for the period of the war, or who are 
 regarded as having enlisted for the duration of 
 the war, may, if entitled to an honorable dis- 
 charge, extend their enlistments for one, two, 
 three, or four years; and shall be entitled to 
 and receive the same rights, privileges, pay, 
 and allowances in all respects as pro\dded by 
 law for men who extend enlistments on com- 
 pletion of their terms of enlistments, except as 
 to gratuity pay; and that, as to the latter, such 
 men shall be allowed one month's pay for an 
 extension of one year, two months' pay for 
 an extension of two years, three months' pay 
 for an extension of three years, and four months' 
 pay for an extension of four years. 
 
 By the same act (41 Stat., 141) it was provided 
 that enlisted men discharged to accept appoint- 
 ments as officers in the Naval Reserve Force 
 who reenlist in the Navy \vithin four months 
 after termination of their reserve ser\-ice shall 
 be entitled to count his service in the Regular 
 Navy and his active service in the Naval Re- 
 serve Force as continuous for purposes of con- 
 tinuous-ser\-ice pay. 
 
 By act of May 18, 1920, section 10 (41 Stat., 
 603), it was pro\'ided "that any enlisted man 
 who shall reenlist in the Navy within one year 
 from the date of his discharge therefrom shall, 
 upon such reenlistment, be entitled to and 
 shall receive the same benefits as are now 
 authorized by law for reenlistment ^vithin four 
 months from date of last discharge from the 
 service: Provided, That this section shall be- 
 come inoperative six months after the date of 
 the approval of this act." (This pro-vision was 
 not retroactive, but was effective only from 
 
 May 18, 1920, to November 17, 1920, inclusive. 
 (26 Comp. Dec, 1065.) 
 
 By act of June 4, 1920 (41 Stat., 836, sec. 7), 
 it was pro\'ided "that hereafter enlistments in 
 the Navy and in the Marine Corps may be for 
 terms of two, three, or four years, and all laws 
 now applicable to four-year enlistments shall 
 apply, under such regulations as may be pre- 
 scribed by the Secretary of the Naw, to en- 
 listments for a shorter period with proportionate 
 benefits upon discharge and reenlistment." 
 
 Historical note. — Prior to the passage of 
 the Navv personnel act of March 3, 1899, sec- 
 tion 16 (30 Stat., 1008), the right of enlisted 
 men of the Na\y to increased pay, based on 
 pre\'ious continuous 8er\'ice, was governed by 
 regulations of the Navy. (6 Comp. ,Dec., 
 589.) 
 
 Under section 1569, Revised Statutes, the 
 President had the authority to provide an in- 
 crease of pay for continuous ser\-ice, and to 
 make it subject to such conditions as he might 
 deem proper. (4 Comp. Dec, 281.) 
 
 Continuous-service certificates and additional 
 pay of $1 per month for each continuous re- 
 enlistment to all persons holding such certifi- 
 cates was provided for in a circular issued by 
 Mr. Borie, Secretary of the Navy, on April 26, 
 1869, the provisions of which were embodied in 
 the Navy Regulations of 1870, as articles 1070 
 and 1071, and with slight verbal changes re- 
 peated in the Regulations of 1876 as paragraphs 
 18 and 19 of chapter 10, section 2, page 100. 
 The same general provisions were repeated in 
 General Order No. 327 of November 21, 1884, 
 and incorporated in the Navy Regulations of 
 1893 as articles 810 and 1172. (3 Comp. Dec, 
 316.) 
 
 Under the Navy Regulations of 1893, article 
 1172, and 1896, article^ll74, in order to entitle 
 a seaman to increased pay for continuous service 
 he must have received an "honorable" dis- 
 charge from a previous enlistment or a recom- 
 mendation for reenlistment upon its termina- 
 tion, and must have reenlisted for three years 
 within three months from the date of discharge. 
 An exception, however, was made in the case 
 of enlisted men who were prevented from 
 serving the full term of their enlistments by 
 reasons of the wi'ecking of the vessel on which 
 they were serving. (4 Comp. Dec, 281.) 
 
 Although no specific regulation therefor 
 existed, it was held that an enlisted man dis- 
 charged prior to expiration of his term of en- 
 listment, in the case where a vessel was -vvi-ecked 
 or lost, and who was issued a continuous- 
 service certificate in accordance ■R'ith the prac- 
 tice of the Navy Department, was entitled to 
 the additional compensation authorized by the 
 Navy Regulations for all persons holding such 
 certificates, the same as though he had actually 
 completed his term of enlistment. (3 Comp. 
 Dec, 316.) 
 
 A practice of the Navy Department relating 
 to the pay of enlisted men was the equivalent 
 of a specific regulation of the Secretary of 
 the Navy, and, like all other regulations of 
 the Navy Department relating to the pay of 
 seamen of the Navy, was presumed to be the 
 act of the President prescrilaing the pay of 
 these men as requii'ed by section 1569, Revised 
 Statutes. (3 Comp. Dec, 316.) 
 
 885 
 
Sec. 1573. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 The honorable discharge required by the 
 Navy Ilep;ulations prescribing conlinuous- 
 serAice pay was that provided for in sections 
 1426 and 1425), Revised Statutes, and was de- 
 pendent upon fidelity and obedience in the 
 service. It differed from the "ordinary" 
 discharge in that the latter caiTied with it no 
 testimonial as to the special good qualities and 
 fitness of the holder. Accordingly, Md, that 
 where an enlisted man UT)on the expiration of 
 his term of enlistment received an "ordinary" 
 discharge, which contained no recommendation 
 for reenlistment, he was not entitled to the 
 benefit of continuous ser\ice. Having there- 
 after received an honorable discharge and 
 complied \nth the other conditions of continu- 
 ous sqrvice, he was entitled to increased pay 
 from the date of this fii'st reenlistment after 
 receiving an honorable discharge. (4 Comp. 
 Dec, 281.) 
 
 The pm-pose of the joint resolution of Jime 
 11, 1896 (above quoted), was to legalize the 
 practice of paying all enlisted men, upon 
 reenlistment, the. extra pay, which practice 
 had crept into the sendee without warrant of 
 law. This practice doubtless arose from the 
 fact that the honorable discharge pro^ided for 
 in section 1429, Re\'ised Statutes, was con- 
 fused with the honorable discharge gi'anted 
 under section 1426. The object of the honor- 
 able discharge provided for in section 1429 is 
 stated in that section to be "as a testimonial of 
 fidelity and obedience, " while the honorable 
 discharge pro\ided for in section 1426, taken 
 in connection with section 1573, is seen to be 
 for the purpose of holding out the extra pay to 
 the six lowest classes of enlisted men in the 
 Na\-y as an inducement to reenlist. By the 
 joint resolution cited. Congress has seen fit 
 to extend the pri^-ileges arising from honorable 
 discharges upon reenlistment far beyond what 
 was originally proA-ided. (2 Comp. Dec, 608.) 
 
 The joint resolution of June 11, 1896 (above 
 quoted), extended the benefits conferred by 
 sections 1426 and 1573, Re\ised Statutes, to 
 all enlisted persons. (2 Comp. Dec, 608.) 
 
 For other cases, see note to section 1426, 
 ReAised Statutes. 
 
 In particular cases, prior to the act of March 
 3, 1899, the Secretary of the Na\'y could waive 
 the pro\dsion requiring reenlistment within 
 three months from the date of pre^ious honor- 
 able discharge as a condition to payment of 
 continuous-ser\-ice pay. (6 Comp. Dec, 589.) 
 
 The increase in monthly pay for continuous 
 service is now fixed by law, instead of by Navy 
 Regulations. (5 Comp. Dec, 929.) 
 
 The rate of increased pay for continuous 
 sen-ice which, before the Na\^ personnel act 
 of March 3, 1899, section 16 (30 Stat., 1008), 
 had been fixed by the President under section 
 1569, Re^i8ed Statutes, became by said act 
 a part of the statutoiy law. Said act fixed the 
 increase of SI. 36 per month to the pay pre- 
 scribed for the rating, for each consecutive 
 reenlistment, as the measure of the increase 
 of value to the sendee of one who so reenlists; 
 and it is not within the power of anyone, until 
 the law is changed, to fix a greater or less rate. 
 Under section 1569 the President could fix 
 the pay to be allowed an enlisted man, and 
 
 could change same from time to time, as he 
 deemed just and proper; but when he had 
 fixed the rate, then by section 16 of the person- 
 nel act Congress declared what increased 
 amount the man should receiA-e for reenlist- 
 ment. (8 Comp. Dec, 227; see note below, 
 under "Continuous-sendee pay defined. ") 
 
 "Continuous-service pay" defined. — 
 Broadly speaking, continuous-sendee pay in- 
 cludes any pay or gratuity whicli is based upon 
 the element of continuity in the sendee of 
 enlisted men. So defined", continuous-sendee 
 pay includes the so-called honorable discharge 
 gratuity, since the payment of such gratiuty is 
 dependent on continuity of sendee. It also 
 includes additional pay allowed under Gen- 
 eral Order No. 34 of 1906 (noted under sec. 
 1569, R. S.), as well as continuous-sendee pay 
 proper. (25 Comp. Dec, 440.) 
 
 Reenlistment pay under General Order No. 
 34 of 1906 (noted under sec. 1569, R. S.), con- 
 tinuous-sendee pay under the act of August 22, 
 1912, and honorable-discharge gratuity under 
 the act of August 22, 1912, are three distinct 
 classifications of pay that should be kept sep- 
 arate and apart in any consideration of an en- 
 listed man's respective rights thereto, each 
 being dependent upon conditions peculiar to 
 itself. (26 Comp. Dec, 565.) 
 
 Na\-y Department General Order No. 20 of 
 January 1, 1901 (noted under sec. 1569, R. S.), 
 fixing the pay of mess attendants for the second 
 and third enlistments, and adding §4 to the 
 monthly pay of the rating for a first reenlist- 
 ment, and S4 more per month for a second 
 reenlistment, in addition to the $1.36 per month 
 for each consecutive reenlistment allowed by 
 section 16 of the Na\'y personnel act, was con- 
 trary to law in that the rate of increased pay 
 to be allowed for continuous sendee was fixed 
 by Congress in the NaAy personnel act, and the 
 order of the President fixed an additional 
 amount per month which constituted an in- 
 crease in continuous-sendee pay. (8 Comp. 
 Dec, 227.) 
 
 Na^y Department General Order No. 34 of 
 November 28, 1906, publishing Executive order 
 of November 27, 1906 (quoted under sec. 
 1569, R. S.), pro\dding increased compensation 
 for trained men who are citizens of the United 
 States, was within the authority conferred 
 upon the President by section 1569, Re%dsed 
 Statutes, and not contrary- to the act of March 3, 
 1899, section 16, pro\dding continuous-servdce 
 pay of SI. 36 per month. General Order No. 
 34 does not attempt to pro^dde for continuous- 
 sendee pay, but does undertake to pro\dde for 
 pay based on length of sendee, or longe\dty 
 pay. The main purpose of the statute pro^dd- 
 ing for continuous-ser\dce pay was to encourage 
 immediate reenlistments, while that of General 
 Order No. 34 was to establish higher rates of 
 pay for trained men. Their periods of prior 
 ser\dce were not required to immediately pre- 
 cede the last enlistment, but might have been 
 at any time, continuous reenlistment not being 
 required. (13 Comp. Dec, 448, distinguishing 
 8 Comp. Dec, 227; see also 17 Comp. Dec, 
 27, 32.) 
 
 "Pay" defined. — The term "pay " in section 
 1573, Revised Statutes, entitling men on re- 
 
 886 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1573. 
 
 enlistment to "pay" during the said three 
 months, means regular pay, and does not in- 
 clude increased pay for extra duty. (5 Comp. 
 Dec, 241.) 
 
 Neither the additional^ pay of an enlisted 
 man of the Na\y for service as a gun pointer, 
 nor that for service on board of submarine 
 vessels, is "pay" within the meaning of 
 that tenn as used in section 1573 of the Revised 
 Statutes as amended by the act of March 3, 
 1899, section 16 (30 Stat., 1008). (12 Comp, 
 Dec, 772.) 
 
 The reenlistment pay provided by section 
 1573, Revised Statutes, as amended by act of 
 March 3, 1899, includes the extra pay provided 
 for the holders of good-conduct medals by 
 article 1257 of the Navy Regulations of 1905. 
 (13 Comp. Dec, 253.) 
 
 On reenUstment a man is entitled to the 
 regular pay of his rating dining the four months 
 as provided by section 1573, as amended, sub- 
 ject, however, to said pay being increased or 
 reduced dming the said four months, and in- 
 cluding pay for good-conduct medal awarded 
 on day of discharge. (17 Comp. Dec, 355.) 
 
 Under the provisions of the act of July 11, 
 1919 (41 Stat., 140), the increases in pay au- 
 thorized by section 15 of the act of May 22, 
 1917 (40 Stat., 87), became a part of the penna- 
 nent base rate of pay of an enlisted man in 
 the Navy during the continuance of certain 
 enlistments; and upon this new base rate and 
 permanent increases by continuous service, 
 medals, and General Order No. 34 of 1906 (noted 
 under sec. 1569, R. S.), the honorable-dis- 
 charge gratuity, wliich is authorized for men 
 who reenlist in the regular Navy should be 
 computed. (26 Comp. Dec, 139.) 
 
 The $2 per month additional pay authorized 
 by the act of February 4, 1919 (40 Stat., 1056), 
 to each enlisted or enrolled person of the naval 
 service to whom is awarded a medal of honor, 
 distinguished-serv'ice medal, or a Navy cross 
 should be included in computing honorable- 
 dischai'ge gratuity of enlisted men who reenlist 
 in the Navy for four years within four months 
 after an honorable discharge. (26 Comp. Dec, 
 976.) 
 
 Character of discharge. — See "Historical 
 note" above; see also note to section 1426, 
 Revised Statutes; and see statutes quoted above 
 under this section. 
 
 To entitle a seaman in the Navy to the thi'ee 
 months' extra pay for reenlisting, known as 
 "honorable-discharge" money, provided for in 
 section 1573, Revised Statutes, his discharge 
 from his previous service must have been 
 honorable within the terms of sections 1426 and 
 1429, Revised Statutes. An ordinary discharge 
 was not sufficient to entitle him to the three 
 months' extra pay. (4 Comp. Dec, 281.) 
 
 An enlisted man of the Navy who received 
 a "bad-conduct" discharge from his last en- 
 listment is not entitled to receive in his present 
 enlistment any continuous-service pay. Under 
 section 1573, Revised Statutes, as amended, he 
 must have received an honorable discharge 
 from his last term of enlistment, or a recom- 
 mendation for reenlistment upon the expiration 
 of his last term of enlistment; otherwise, on 
 reenlistment he loses the benefit of continuous- 
 service pay which he received under his pre- 
 
 vious enlistment, as well as failing to acquire 
 any new right to continuous-service pay. (20 
 Comp. Dec, 856.) 
 
 An enlisted man of the NaAry dishonorably 
 discharged, pursuant to the sentence of a 
 general court-martial, within three months 
 preceding the expiration of his enlistment, and 
 recommended for reenlistment, is not entitled 
 on reenlistment within four months to any 
 continuous-service pay. His discharge was 
 pursuant to the sentence of com't-martial, and 
 not for expii'ation of enlistment; although it 
 happened to occur within three months prior 
 to expiration, it was not a discharge authorized 
 by the act of August 22, 1912 (37 Stat., 331, 
 quoted above). As his discharge was not 
 honorable, and as it occurred prior to the ex- 
 piration of his last term of service, and inde- 
 pendently of the act of August 22, 1912, the 
 recommendation for reenlistment received by 
 him was not a "recommendation for reenlist- 
 ment upon the expiration of his last term of 
 enlistment" within the meaning of section 
 1573, as amended. (21 Comp. Dec, 871.) 
 
 An enlisted man of the Navy who, on being 
 dishonorably discharged after the expii-ation of 
 his enlistment, is recommended for reenlist- 
 ment, is entitled upon reenlistment within 
 four months after the date of discharge to ad- 
 ditional pay for continuous service. (Comp. 
 Dec, Aug. 31, 1914, 70 MS. Comp. Dec, 1914; 
 cited in 21 Comp. Dec, 871.) 
 
 The act of August 22, 1912 (37 Stat., 331), 
 providing for the discharge of men at any 
 time within three months prior to expii'ation 
 of enlistment, without prejudice, etc., 
 (quoted above), amended section 1573, Revised 
 Statutes. (24 Comp. Dec, 776.) 
 
 An enlisted man of the Navy whose preceding 
 period of enlistment expired while he was on 
 furlough without pay, as authorized by act of 
 August 29, 1916 (39 Stat., 580), and who there- 
 fore, in accordance vvith the practice then pre- 
 vailing, did not receive an honorable discharge 
 upon expiration of his enlistment, his enlist- 
 ment ha\ing been regarded as. terminated by 
 furlough, and not by expiration, held, not en- 
 titled, on reenlistment, to continuous-service 
 pay as authorized by the act of August 22, 1912 
 (37 Stat., 331), amending section 1573, Revised 
 Statutes (25 Comp. Dec, 328). 
 
 As an enlistment which expires wMle the 
 enlisted man is in desertion is not a termination 
 of service by expiration of enlistment, held, 
 that an enlisted man of the Navy who deserts, 
 surrenders himself subsequent to the period of 
 enlistment, and is permitted to reenlist, is not 
 entitled to continuous-service pay under the 
 act of August 22, 1912 (37 Stat., 331), not having 
 received an honorable discharge from his last 
 term of enlistment, and not ha\ing been recom- 
 mended for reenlistment upon the expiration 
 of his last tenn of enlistment. (26 Comp. Dec, 
 250.) 
 
 Period allowed for reenlistment. — See 
 "Historical note" above. See also act of 
 February 8, 1889 (25 Stat., 657), which per- 
 mitted persons honorably discharged, in ac- 
 cordance with section 1429, Revised Statutes, 
 to elect a home on any receiving ship, with one 
 ration per day, during any portion of the time 
 allowed them to reenlist with the pecuniary 
 
 887 
 
Sec. 1573. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 benefits authorized by section 1573, Re\-i8ed 
 Statutes. 
 
 A seaman who was honorably discharged 
 September 21, 1898, and reenlisted Decem- 
 ber 21, 1898, reenlisted " within three months " 
 as pnnided by section 1573, Re\i8ed Statutes, 
 and became entitled to pay during the said 
 three months. (5 Comp. Dec, 362.) 
 
 The Secretary of the Naxy has no authority 
 to waive the three months' limitation in the 
 provision of section 1573, RoN-ised Statutes, 
 as amended by joint resolution of June 1 1 , 1896, 
 which, prior to the passage of the naval per- 
 sonnel act of March 3, 1899, section 16 (30 Stat., 
 1008), pro\ided for three months' pay on reen- 
 listment in the Na^'y for a term of three years 
 within a period of three months. (6 Comp. 
 Dec, 589.) 
 
 Under article 861, NaA-y Regulations, 1900, 
 an enlisted man of the Na^y who accepted an 
 appointment as paymaster's clerk thereby ter- 
 minated his enlistment; and where he served 
 as paymaster's clerk more than four months he 
 was not entitled, on subsequently reenlisting, 
 to count his prior service as an enlisted man in 
 computing his longe\ity pay. (10 Comp. Dec, 
 528.) 
 
 Where an enlisted man was discharged at his 
 own request, with recommendation for re- 
 enlistment, prior to the expiration of his term 
 of enlistment but after serving for more than 
 three years, to enable him to accept an appoint- 
 ment as paymasters clerk, he was entitled, 
 upon reenlisting within four months from the 
 time of his discharge, to the continuous-service 
 pay provided for by the act of March 3, 1899. 
 (11 Comp. Dec, 682.) 
 
 The phrase "within four months," as used 
 in section 16 of the act of March 3, 1899 (30 Stat., 
 1008), amending section 1573, means wdthin 
 four calendar months; and in computing the 
 same the day of discharge and that day only 
 should be excluded. (14 Comp. Dec, 583.) 
 
 An enlisted man of the Navy who was hon- 
 orably discharged January 19, 1907, and reen- 
 listed May 20, 1907, did not reenlist "within 
 four months" within the meaning of section 16 
 of the act of March 3, 1899, and is not entitled 
 to the honorable-discharge gratuity pay for 
 said four months, nor to the $1.36 increase of 
 
 Say, during such reenlistment. (14 Comp. 
 ►ec, 583.) 
 
 Where an enlisted man of the Na\'y had been 
 honorably discharged, and applied for reenlist- 
 ment within the four months allowed by the 
 act of March 3, 1899, but was not then formally 
 reenlisted on account of the fact that his con- 
 tinuous-service certificate had not been re- 
 turned by the officer to whom he had forwarded 
 same with request for transportation; and said 
 man was formally reenlisted on a date subse- 
 quent to the expiration of the four months, 
 ha\'ing in the meantime actually entered on 
 duty with the knowledge of the commanding 
 officer of the ship upon which he had made 
 application for reenlistment, held, that such 
 man had reenlisted ^\•ithin the meaning of the 
 act of March 3, 1899, and is entitled to all the 
 benefits of said act as if his reenlistment had 
 been formally completed on the date of appli- 
 cation. (16 Comp. Dec, 359.) 
 
 An honorably discharged enlisted man of the 
 Navy applied for reenlistment to a traveling 
 recruiting party; was given a preliminary ex- 
 amination and authorization for reenlistment 
 "subject to reexamination physically"; was 
 physically reexamined and found disqualified 
 for reenlistment and gi-anted permission to 
 enter a na\al hospital for operative treatment, 
 if he so desired, with a view to reenlistment— 
 all within four months from the date of his dis- 
 charge. Subsequent to the expiration of the 
 four months' period he entered the hospital, 
 and on discharge therefrom entered into the 
 formal contract of enlistment and executed the 
 oath of allegiance. Ilrkl, that he was not 
 reenlisted \\ithin four months from the date of 
 discharge, and is not entitled to honorable- 
 discharge gratuity or continuous-ser\ice pay 
 on such reenlistment. (19 Comp. Dec, 334.) 
 
 Short-term enlistments.— While contin- 
 uous-service pay provided for enlisted men 
 of the Navy under the act of August 22, 1912 
 (37 Stat., 331), is authorized only when reen- 
 listment is for a term of four vears, the act of 
 May 22, 1917 (40 Stat., 85), modifies the provi- 
 sion of the former act as to the term of enlist- 
 ment, and by a fair construction of the two 
 acts if an enlisted man reenlist s for another 
 full term, as prescribed by the latter act, 
 whether it be for four years or for such period as 
 may be prescribed by the President, or for the 
 duration of the present war, he is entitled to 
 continuous-service pay if such reenlistment 
 takes place within four months from the date 
 of discharge. (25 Comp. Dec, 315.) 
 
 For the purpose of computing payment of 
 honorable-cUscharge gratuity, and continuous- 
 service pay, enlistments in the Navy for "the 
 period of the present war, " authorized by sec- 
 tion 3 of the act of May 22, 1917 (40 Stat., 84), 
 may be considered to have expired on date of 
 discharge; or in case of an extension of enlist- 
 ment, as provided by the act of July 11, 1919 
 (41 Stat., 139), on date the extension becomes 
 effective. (26 Comp. Dec, 132.) 
 
 Under the act of July 11, 1919 (41 Stat., 134), 
 above quoted, providing for short-term enlist- 
 ments ''with proportionate benefits upon dis- 
 charge and reenlistment, " held that a man 
 reenlisting for a term of three years acquired 
 a right to continuous-serAdce increase of pay 
 equal to three-fourths of $1.36 per month, 
 plus 10 per cent. (26 Comp. Dec, 399.) 
 
 The words "with proportionate benefits 
 upon discharge and reenlistment" apply to 
 discharge and reenlistment after expiration of 
 an enlistment for less than four years, entered 
 into under authority of the act of July 11, 1919. 
 Accordingly, a man reenlisting in the Navy 
 after July 11, 1919, for three years, was entitled 
 to increase of continuous-service pay as allowed 
 for a four-year enlistment; but upon his dis- 
 charge and subsequent reenlistment he would 
 be entitled to " pi-oportionate benefits " or three- 
 fourths of the continuous-service pay allowed 
 upon reenlistment after discharge fi'om a four- 
 j'ear enlistment. (26 Comp. Dec, 706.) 
 
 The amount of honorable-discharge gi-atuity 
 of enlisted men of the Navy on reenlistments for 
 two years, or three years, or four years, author- 
 ized bv acts of July 11, 1919, and June 4, 1920 
 
 888 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1573. 
 
 (above quoted), is equal to the pay the enlisted 
 men would have received if they had been em- 
 ployed in actual service two months, or three 
 months, or four months, respectively. (27 
 Comp. Dec, 210, following 27 Comp. Dec, 
 101.) 
 
 In computing continuous-service pay, the 
 unit of ser\dce is four years; for each full four 
 years of ser\ice the additional pay authorized 
 should be credited for the ensuing four years of 
 service without regard to length of time actually 
 served in any particular enlistment of shorter 
 periods authorized by acts of July 11, 1919, and 
 June 4, 1920 (above quoted). (27 Comp. Dec, 
 210.) 
 
 Enlisted men of the Navy serving over four 
 years continuously, imder short-term enlist- 
 ments or extensions of enlistments, are entitled 
 to continuous-service pay at the expiration of 
 the first four years of continuous service, and' 
 at the expiration of each fom* years of contin- 
 uous service thereafter. (27 Comp. Dec, 506.) 
 
 A man enlisted for three years. May 13, 
 1896, was honorably discharged May 12, 1899, 
 on account of expiration of enlistment, and 
 reenlisted the next day for a term of four years 
 as prescribed by the" act of March 3, 1899. 
 Held, that he was entitled to the honorable-dis- 
 charge gratuity of four months' pay, as pre- 
 scribed by the act of March 3, 1899, and not to 
 the gratuity of three months' pay as prescribed 
 by section 1573, Revised Statutes, prior to its 
 amendment; further helf], that he was entitled 
 to continuous-service pay of §1.36 per month, 
 as prescribed by the act of March 3, 1899, and 
 not to the continuous-service pay of $1 per 
 month under the Executive orders in force 
 prior to March 3, 1899. (5 Comp. Dec, 929.) 
 
 Minority enlistment. — A person enlisted 
 in the Navy during minority, and honorably 
 discharged within three months before the ex- 
 piration of his enlistment (as authorized by 
 act of Aug. 22, 1912, 37 Stat., 331), and who re- 
 enlisted for four years the day foUomng his 
 discharge, is entitled to all the benefits accru- 
 ing to an enlisted man for continuous-service 
 pay, although still a minor at the time of his 
 discharge and reenlistment. (20 Comp. Dec, 
 409.) 
 
 Extension of enlistment. — An extension 
 of enlistment for one year, as provided in the 
 act of August 22, 1912 (37 Stat., 330), entitles 
 an enUsted man of the Navy to be credited 
 under such extension with continuous-service 
 certificate pay. (19 Comp. Dec, 819.) 
 
 When an enlisted man of the Nav^y has been 
 detained in the service under section 1422, 
 Revised Statutes, the enlistment in which he 
 is detained may, under the act of August 22, 
 1912 (37 Stat., 331), be extended before the 
 expiration of the authorized detention, to date 
 not from the expiration of the original enlist- 
 ment but from the end of the period for which 
 he was legally detained . When so extended , the 
 man is entitled to continuous-service-certificate 
 pay. (20 Comp. Dec, 377, modifying 19 Comp. 
 Dec, 819.) 
 
 The first enlistment of a seaman was extended 
 one year, and during extension his rating was 
 changed to gunner's mate, third class; at ex- 
 piration of extended enlistment he was honor- 
 ably discharged and reenUsted within four 
 
 months. Held, that on reenlistment he was 
 entitled to four months' honorable-discharge 
 gratuity computed at the rate of pay he was 
 receiving when discharged, which included 
 his rating pay as a gunner's mate, third class; 
 and that he was entitled to continuous-service 
 pay, and 10 per cent increase thereof. (20 
 Comp. Dec, 361.) 
 
 An enlisted man of the Navj^ who surrendered 
 from desertion and was restored to duty with- 
 out trial, and who, after serving a period of 
 probation, was allowed to extend his enlist- 
 ment, is entitled under such extended enlist- 
 ment to credit for pay for continuous service, 
 his status being the same as though he had not 
 been absent during his term of enlistment. 
 (25 Comp. Dec., 920.) 
 
 The extension of enlistment law granted to 
 enlisted men of the Regular Nav^y the right to 
 continuous-service pay; and honorable-dis- 
 charge gratuity is payable if the period for 
 which the extension was made aggregated four 
 full years. (26 Comp. Dec, 33, 34, citing 63 
 MS. Comp. Dec, 136, Oct. 12, 1912, and 68 MS. 
 Comp. Dec, 1200, Feb. 25, 1914.) 
 
 Where under the act of August 22, 1912 (37 
 Stat., 331), an enlisted man of the Navy ac- 
 quires a right to the continuous-service in- 
 crease of pay by extending his enlistment, the 
 right so acquired, except in cases where such 
 extension aggregates four years, terminates 
 upon his discharge at the expiration of the 
 extended period of enlistment; and thereafter 
 the enlisted man acquires a right to continuous- 
 service pay only under the same conditions aa 
 such right is acquired upon reenlistment at the 
 completion of a regular term of enlistment. 
 (26 Comp. Dec, .399.) 
 
 Where under the act of August 22, 1912, an 
 enlisted man of the Navy extends his enlist- 
 ment, he is entitled to continuous-service pay 
 during the period of extension as if the exten- 
 sion were in fact a reenlistment; but such right 
 to continuous-service pay, except in cases 
 where the extension aggregates four years, 
 terminates upon discharge at the expiration of 
 the extended enlistment; and thereafter, in 
 computing his continuous-service pay in sub- 
 sequent reenlistments, the extension under 
 the said act of August 22, 1912, for less than four 
 years, is to be considered a part of the original 
 enlistment thus extended, and not as a separate 
 and distinct enlistment or as part of any sub- 
 sequent reenlistment. (26 Comp. Dec.,_ 706.) 
 
 Naval reservists. — An enlisted man in the 
 Navy who, at the expiration of his term of 
 enlistment, is not discharged therefrom, but 
 under the provisions of the act of August 29, 
 1916 (39 Stat., 556), is transferred to the Fleet 
 Naval Reserve, and who, within four months 
 after the date of expiration of such term of en- 
 listment is discharged from the Fleet Naval 
 Reserve and reenlisted for four years in the 
 Regular Navy, is entitled, in an otherwise 
 proper case, to honorable-discharge gratuity 
 and continuous-service pav. (23 Comp. Dec, 
 535.) 
 
 An enlisted man of the Navy who reenlists 
 within four months of the date of his honorable 
 discharge therefrom is not deprived of the gra- 
 tuity authorized under the act of August 22, 
 
 889 
 
Sec. 1573. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 1912, merely because of service in the Naval 
 Reserve during the interval. (24 Comp. Dec, 
 129.) 
 
 A transferred member of the Fleet Naval 
 Reserve, whose transfer was made after 20 
 years' service in the Rep;ular Na\^ and not at 
 the expiration of an enlistment, and who sub- 
 sequently was discharged from the Fleet Naval 
 Reserve and reenlisted next day in the Regular 
 Navy, is not entitled to credit for continuous- 
 service pay. The cases of transferred meml)ers 
 are not covered bv the provision in the act of 
 August 29, 191G (39 Stat., 590, above quoted), 
 with respect to enrolled members of the Naval 
 Reser\'e Force who are discharged therefrom 
 and reenlist in the Regular Na^'y, nor is this case 
 covered by 23 Comp. Dec, 535 (above noted), 
 which related to enlisted men of the Na\'y 
 transferred to the Fleet Naval Reserve at the 
 expiration of a period of enlistment and sub- 
 secjuentlv reenlisting in the Regular Navy. (25 
 Comp. Dec, 884.) 
 
 Enrolled men transferred from the Naval 
 Reserve Force to the Regular Navy to serve 
 the unexpu-ed term of their enrollment, in 
 accordance \vith the act of July 11, 1919 (41 
 Stat., 139, above quoted), are entitled, from 
 the date the transfer is consummated, to in- 
 crease of pay for continuous service, as well as 
 to honorable-discharge gratuity. (26 Comp. 
 Dec, 33.) But such former reservists who 
 reenlist in the Regular Navy for four years 
 within four months after discharge at the ex- 
 piration of their period of enrollment thus 
 served in the Regular Navy are not entitled to 
 a further increase of pay for continuous service 
 in addition to that received during the period 
 of enrollment after transfer to the Regular 
 Navy. (27 Comp. Dec, 695.) 
 
 Under the act of August 29, 1916 (39 Stat., 
 590, above quoted), an enlisted man of the 
 Navy who was enrolled in the Fleet Naval 
 Reserve ^^dthin four months after discharge, 
 and who, after discharge from the Fleet Naval 
 Reserve, was again enlisted in the Regular 
 Navy within the prescribed period, is entitled 
 to honorable-discharge gratuity, computed 
 upon the pay he was receiving at the date 
 of his last discharge from the Regular Navy\ 
 (26 Comp. Dec, 489.) 
 
 The act of July 11, 1919 (41 Stat., 141, above 
 quoted), relating to elisted men of the Navy 
 appointed officers in the Naval Reserve Force 
 and subsequently reenlisting, preserves the 
 status previously acquired by continuity of 
 service, wluch, without the provision, would 
 be lost to such men; but it does not create any 
 right to permanent additions to pay other 
 than those already acquired. (26 Comp. Dec, 
 565; see note above, under "Continuous- 
 service pay defined. ") 
 
 Held, specifically, that the act of July 11, 
 1919 (41 Stat., 141), providing that service per- 
 formed by the men described therein ''shall be 
 regarded as continuous for purposes of contin- 
 uous-service pay" does not entitle such men 
 to an increase in continuous-service pay im- 
 mediately upon reenlistment; that it does not 
 entitle them to increase in continuous-service 
 pay upon the completion of four years from the 
 date of their last previous enlistment in the 
 Navy; that the pay of such men upon restora- 
 
 tion, including permanent additions previously 
 earned by reason of continuity in service, 
 mil remain unchanged for the period of their 
 enlistment, except as it may be affected by 
 changes in law or rating; and that such men 
 will not be entitled to honorable-discharge 
 gratuity immediately upon reenlistment or 
 upon completion of four years from the date of 
 their last previous enlistment in the Navy. 
 (26 Comp. Dec, 565.) 
 
 An enlisted man of the Navy who enrolls in 
 the Naval Auxiliary Reserve within four months 
 from date of honorable discharge from the 
 Regular Navy is not entitled to honorable- 
 discharge gratuity upon reenlistment in the 
 Navy \\'ithin four months from date of dis- 
 charge from the Naval Auxiliary Reserve. (27 
 Comp. Dec, 8.) 
 
 It has repeatedly been held by the comp- 
 troller that, except for enrolled members of the 
 Fleet Naval Reserve who reenlist in the Reg- 
 ular Navy, no right to honorable-discharge 
 gratuity can accrue to a former member of any 
 class of the Naval Reserve Force except where 
 the reenlistment takes place within four months 
 from the date of last discharge, at expiration 
 of enlistment, from the Regular Navy. (27 
 Comp. Dec, 8.) 
 
 Retired enlisted men. — An enlisted man 
 of the Navy, holding the rating of mate, who is 
 placed on the retired list without ha\T.ng copi- 
 pleted the term of his final enlistment, and 
 who thereafter is called into active ser\'ice, 
 does not, after a period of active service equal 
 to the unexpired portion of his last enlistment, 
 become entitled to the continuous-ser\ice 
 increase of pay or the honorable-discharge 
 gratuity. (24 Comp. Dec, 152.) 
 
 By act of July 1, 1918 (40 Stat., 719), it was 
 provided that a retired enlisted man recalled 
 into active service shall be eligible for promo- 
 tion and ' ' shall be entitled to the pay and bene- 
 fits of continuous service of such rank and for 
 such length of time as he is or has been em- 
 ployed in active ser\dce, and when relieved of 
 active service shall retain upon the retired 
 list the rank and service held by him at the time 
 of such relief, ^vith the pay and allowances of 
 such rank on the retired list." Held, that as 
 continuous-service pay includes in its broadest 
 sense any pay or gratuity dependent upon 
 continuity of ser\ice, retired enhsted men of 
 the Navy who are recalled to active service 
 and who complete a jjeriod of service equal to 
 the unexpired term of their enlistment are 
 entitled, when otherwise qualified, to contin- 
 uous-service pay proper, honorable-discharge 
 gratuity, and pay under General Order No. 34 
 of 1906 (noted under sec. 1569, R. S.), by 
 wtue of said act of July 1, 1918. (25 Comp. 
 Dec, 440; compare, 26 Comp. Dec, 565, 
 noted above, under "Naval reser\dsts. ") 
 
 Men furloughed without pay. — An en- 
 listed man furloughed without pay in accord- 
 ance ^vith the act of August 29, 1916 (39 Stat., 
 580), resumes in all respects his former status 
 upon being recalled to active ser\-ice, and upon 
 discharge at the completion of the unexpired 
 portion of his enlistment is entitled to travel 
 allowance, and upon reenlistment to the 
 honorable-discharge gratuity, if otherwise 
 authorized. (25 Comp. Dec, 231.) 
 
 890 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1575. 
 
 An enlisted man furloughed -without pay, and 
 who was not given a discharge at the expiration 
 of his enlistment, hfld, not entitled to con- 
 tinuous-service pay upon reenlistment. (25 
 Comp. Dec, 328.) 
 
 Mates. — Mates of the Na\'y are petty offi- 
 cers, and their pay being specially fixed by 
 section 1556 of the Revised Statutes, and any 
 additional pay or allowances being prohibited 
 by section 1558, Re\'ised Statutes, they are not 
 entitled, upon reenlistment in the rating of 
 mate, to the §1.36 increase of pay per month 
 proA'ided therein for enlisted men who reenlist 
 within the pro\isions of section 1573, Re\'ised 
 Statutes, as amended by the act of March 3, 
 1899. But such mates on reenlistment are 
 entitled to the honorable-discharge gratuity 
 provided by the same law if they reenlist 
 within four months from the date of discharge. 
 (14 Comp. Dec, 457.) 
 
 An enlisted man of the Navy who was 
 appointed as mate and continued to sen^e as 
 such after the expiration of his term of enlist- 
 ment, without recei\ing a discharge, held, still 
 in the service and entitled to his discharge; 
 and upon reenlisting after such discharge he is 
 entitled to the benefits of continuous-ser\dce 
 pay under article 839, Navy Regulations, 1905. 
 (26 Op. Atty. Gen., 319; but see, 14 Comp. Dec, 
 457, and 24 Comp. Dec, 152.) 
 
 The base pay of mates fixed by section 6 of 
 the act of May 18, 1920 (41 Stat., 602), at $126 
 per month, is not to be increased by 25 per cent 
 thereof, the pro\ision in the act of May 13, 1908 
 (35 Stat., 128), for a 25 per cent increase in the 
 base pay of mates in the Navy, in effect ha\T.ng 
 been repealed and superseded by the act of 
 May 18, 1920; nor does the act of May 18, 1920, 
 operate to grant to mates in the Navy the right 
 to permanent additions to their base pay that 
 are authorized for enlisted men of the Navy 
 generally, under General Order No. 34 of 1906 
 (noted under sec 1569, R. S.), or for continuous 
 8er\T.ce, under section 1573, Re\dsed Statutes, 
 as amended, or for good-conduct medals. 
 (27Comp. Dec,175.) 
 
 Naval Academy Band. — Under the act of 
 April 12, 1910 (36 Stat., 297), providing for the 
 enlistment of Naval Academy bandsmen and 
 gi\T.ng them '"the same benefits in respect to 
 pay, emoluments, and retirement arising from 
 longe\dty, reenlistment, and length of service 
 as are or may hereafter become applicable to 
 other enlisted men of the Na\y," such bands- 
 men, upon enlistment, are entitled to be 
 credited with all ser\dce as members of said 
 band in computing continuous-service pay, 
 such computation to be made as if actually 
 enlisted and discharged as provided by law in 
 effect when such service was rendered. (17 
 Comp. 
 
 Dec, 27.) 
 
 Sec. 1574. [Crews of wrecked or lost vessels.] When the crew of any vessel 
 of the United States are separated from such vessel, by means of her wreck, loss, 
 or destruction, the pay and emoluments of such of the officers and men as 
 shall appear to the Secretary of the Navy, by the sentence of a court-martial 
 or court of inquiry, or by other satisfactory evidence, to have done theh utmost 
 to preserve her, and, after said ^vreck, loss, or destruction, to have behaved 
 themselves agreeably to the discipline of the Navy, shall go on and be paid them 
 until then- discharge or death.— (17 July, 1862, c. 204, s. 14, v. 12, pp. 608, 609.) 
 
 See sections 286-290, Revised Statutes, and 
 notes thereto. 
 
 The act of June 4, 1920 (41 Stat., 824), niakes 
 provision for compensation to be paid to 
 the widow, and if no vvidow to the child or 
 children, and if no widow or child to any 
 other dependent relative, previously des- 
 ignated, of any officer, enlisted man, or 
 nurse on the active list, in case of the lat- 
 ter's death from wounds or disease, not the 
 result of the decedent's misconduct; the 
 amount of such compensation to equal six 
 months' pay at the rate received by the 
 decedent at the time of his or her death. 
 
 The war risk insurance act of October 6, 1917, 
 Article III (40 Stat., 405), as amended by 
 act of June 25, 1918 (40 Stat., 609), and act 
 
 of December 24, 1919 (41 Stat., 371), makes 
 provision for compensation, in lieu of pen- 
 sion, to be paid to the family of any person 
 in the naval service who is disabled or dies 
 as the result of injury or disease suffered in 
 line of duty and not caused by his own v\ill- 
 ful misconduct. 
 
 Subsistence of o£S.cers separated from 
 their vessel. — The provision in the act of 
 March 3, 1897 (29 Stat., 657), making appro- 
 priation for subsistence of officers temporarily 
 absent from their vessel, does not apply to 
 officers separated from their v'essel by reason of 
 its loss or destruction wliile they are in receipt 
 of their sea pay and allowances under section 
 1574, Revised Statutes. (5 Comp. Dec, 221.) 
 
 Sec. 1575. [Crews of vessels taken by an enemy.] The pay and emoluments 
 of the officers and men of any vessel of the United States taken by an enemy 
 who shall appear, by the sentence of a court-martial or otherwise, to have done 
 their utmost to preserve and defend their vessel, and, after the taking thereof, to 
 have behaved themselves agreeably to the discipline of the Navy, shall go on 
 and be paid to them until their exchange, discharge, or death. — (17 July, 1862, 
 c. 204, s. 15, V. 12, p. 609.) 
 
 54&41°— 22 57 891 
 
Sec. 1676. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 "Enemy" defined. — The first statute pro- 
 vidini:, in terms, for our naval disci|)line is the 
 "act for the govenunent of the Na\v of the 
 United Stutes," of iMarch 2, 1799 (1 Stat., 709). 
 The fourth section of that act (1 Stat., 714) 
 pro\-ided that "all the pay and wages of such 
 officers and seamen of any of the ships of the 
 United States as are taken by the enemy, and, 
 upon inquiry at a court-martial, shall ai)pear 
 by the sentence of the said court to have done 
 their utmost to defend the ship or ships, and 
 since the taking thereof, to have behaved 
 themselves obediently to their superior officers, 
 according to the discipline of the Navy, and the 
 said articles and orders, hereinbefore estab- 
 lished, shall continue and go on as aforesaid," 
 etc. The act of April 23, 1800, enacts (sec. 4, 
 2 Stat., 45), ' 'that all the pay and emoluments 
 of such officers and men of any of the ships or 
 vessels of the United States taken by an enemy, 
 * * * shall go on, and be paid them until 
 their death, exchange, or discharge." The act 
 of 1799 is almost identical with that of 1800. In 
 the former the phrase stands, "the enemy;" 
 in the latter it is changed to "an enemy." 
 The construction of the act of 1799 might be 
 doubtful, for there is a certain and definitive 
 meaning in the phrase "the enemy. " It is a 
 familiar phrase and means the public enemy, 
 the acknowledged enemy, the enemy of the 
 nation, the enemy with whom we are already 
 at war. But when Congress, in 1800, changed 
 the phraseology, and for this definitive and 
 restricted phrase adopted one so general and 
 comprehensive as to include any and every 
 enemy, they must have done so for some legis- 
 lative purpose. That purpose appears to have 
 been to provide for engagements -ftith pirates, 
 then common in American seas, and to pro\dde 
 for just such cases as the encounter between 
 the Chesapeake and the British ship Leopard. 
 (Straughan v. U. S., 1 Ct. Cls., 324.) 
 
 John Straughan, a citizen of the United 
 States, enlisted as a seaman on board the 
 United States frigate Chesapeake for one year; 
 the Chesapeake in time of peace was attacked 
 and taken possession of by the British ship 
 Leopard; Straughan, with other seamen, was 
 forcibly carried off by the Leopard on the pre- 
 text that they were deserters; after ^ve years 
 they were released and returned to the Chesa- 
 peake; Straughan did duty for a short time and 
 was discharged; he received no pay for the 
 period that he was held by the British Govern- 
 ment. His widow brought action in the Court 
 of Claims to recover pay for said period . Held, 
 
 that the Leopard, in her attack upon the Chesa- 
 peake, was "an enemy' ' within the meaning of 
 the fourth section of the act of April 23, 1800 
 (2 Stat., 45). That act enlarges the act of 
 March 2, 1799 (1 Stat., 709), and the third and 
 fourth sections thereof are intended to include 
 all cases where persons in the naval service 
 are "separated from their vessels" by either 
 wreck or capture. (Straughan v. U. S., 1 Ct. 
 Cls., 324. Note: The third section of the act 
 of April 23, 1800, and the third section of the act 
 of March 2, 1799, were both similar to the pro- 
 visions of section 1574, Revised Statutes, while 
 the foiu'th sections of those acts were similar 
 to the proAdsions of section 1575, Re^ised 
 Statutes.) 
 
 An act of hostility by a national ship of war 
 is an act of war. The officer who directs it is 
 not liable to the injured parties, but to his own 
 Government. The rule that a principal is not 
 responsible for the tortious acts of his agent 
 forms no part of the law of nations; and a Gov- 
 ernment can not relieve itself of responsibility 
 by disavowing the act of its officer. (Straughan 
 V. U. S., 1 Ct. Cls., 324.) 
 
 Pay continues after expiration of enlist- 
 ment. — An enlisted man of the Navy captured 
 and separated from his ^-essel in consequence 
 of an attack by a British vessel in 1807, and 
 held by the British Government for a period of 
 five years, when he was released and returned 
 to his vessel, held, entitled to be paid his wages 
 by the United States for the total period of five 
 years, although the enlistment in which he was 
 serving at the time of his capture was for a 
 period of only one year. (Straughan v. U. S., 
 1 Ct. Cls., 324.) 
 
 Officer interned in neutral country. — 
 An officer of the Navy interned in a neutral 
 country, if recjuired to hire quarters there for 
 himself, is entitled to commutation thereof as 
 "emoluments" that "shall go on and be paid" 
 as provided by sections 1574 and 1575, RoAised 
 Statutes. If quarters have not been so ac- 
 quired, he is not entitled to commutation. 
 (25 Comp.Dec.,303.) 
 
 An officer of the Nax-y who without fault on 
 his part is interned by a neutral nation is on 
 active duty within the meaning of the act of 
 April 16, 1918 (40 Stat., 530), and is entitled 
 under said act to commutation of quarters, 
 heat, and light, on account of maintaining de- 
 pendents for the period of his internment. 
 (25 Comp.Dec.,303.) 
 
 Sec. 1576. [Assignment of wages.] Every assignment of wages due to 
 
 persons enlisted in the naval service, and all powers of attorney, or other 
 
 authority to draw, receipt for, or transfer the same, shall be void, unless attested 
 
 by the commanding officer and paymaster. The assignment of wages must 
 
 specify the precise time when they commence. — (30 June, 1864, c. 174, s. 12, 
 
 V. 13, p. 310.) 
 
 See section 1430, Re\dsed Statutes, and note [ Effect of section.— The assignment of any 
 
 thereto; see also sections 3477 and 3620, claim against the United States is prohibited 
 
 Revised Statutes; and see note to section ! by section 3477 of the Revised Statutes. This 
 
 1556, Re\dsed Statutes, under "Allot- prohibition is held to include the assignment 
 
 mentsof pay." of pay. The assignment of wages by enlisted 
 
 892 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1578. 
 
 men of the Navy is taken out of the prohibition 
 of section 3477 by section 1576 of the Revised 
 Statutes. (17 Comp. Dec, 666.) 
 
 Assignment to attorney. — Where an 
 enUsted man of the Navy employed an attorney 
 to defend him on a criminal charge before civil 
 authorities, and in compensation therefor gave 
 
 said attorney an order on the commanding 
 officer of the vessel on which he served for a 
 portion of the pay due him, such contract is a 
 personal one, not operating to create a liability 
 on the part of the Government, and payment 
 of the amount is not authorized. (25 Comp. 
 Dec, 99.) 
 
 1577. [Rations of midshipmen. Superseded.] 
 
 This section provided as follows: 
 
 "Sec. 1577. Midshipmen and acting mid- 
 shipmen in the Navy shall be entitled to one 
 ration, or to commutation therefor. " — (28 July, 
 1866, c. 296, s. 8, v. 14, p. 322. 28 Feb., 1867, 
 c. 100, s. 2, V. 14, p. 416.— Philbrook's Case, 
 8 C. Cls., 523.) 
 
 It was superseded by the act of March 3, 
 1883 (22 Stat., 472), which abolished the grade 
 of midshipman, which was then, under section 
 1362, Re\'ised Statutes, the eleventh grade of 
 Line officers of the active list of the Navy, a,nd 
 provided that midshipmen then on the active 
 list should "constitute a junior grade of, and 
 be commissioned as, ensigns. ' The grade of 
 junior ensign thus created was abolished by 
 act of June 26, 1884, section 2 (23 Stat., 60; 
 see notes to sees. 1362 and 1512, R. S.). 
 
 Students at Naval Academy. — Under the 
 Revised Statutes, section 1512, students at the 
 Naval Academy were designated as "cadet 
 midshipmen, " with the exception of a special 
 class, styled "cadet engineers, " under sections 
 1522-1524, Revised Statutes. By act of August 
 5, 1882 (22 Stat., 285), the title of all under- 
 graduates at the Naval Academy was changed to 
 "naval cadets, " which was the title of students 
 at the Naval Academy when the grade of mid- 
 shipman was abolished by act of March 3, 1883, 
 above quoted . 
 
 By act of January 30, 1885 (23 Stat., 291), it 
 
 was provided that "all enlisted men and boys 
 in the Navy, attached .to any United States 
 vessel or station and doing duty thereon, and 
 naval cadets, shall be allowed a ration, or com- 
 mutation thereof in money, under such limita- 
 tions and regulations as the Secretary of the 
 Navy may prescribe. " This act in so far as it 
 applied to "naval cadets," was amended by 
 act of July 1, 1902 (32 Stat., 686), which changed 
 the title "naval cadet" to "midshipman," 
 which has ever since continued to be the title 
 of students at the Naval Academy. 
 
 Rations of midshipmen are now authorized 
 by the act of January 30, 1885, as amended by 
 theactof Julv 1, 1902, both above quoted. (By 
 jointres. No."], Dec. 17, 1903, 33 Stat., 581, refer- 
 ence was made to sec. 1577, R. S., as the au- 
 thority for allowing commuted rations to mid- 
 shipmen.) 
 
 "Midshipmen are entitled to one ration, or 
 to commutation therefor, at all times. " (Art. 
 4517, par. 1, Navy Regs., 1913; 26 Comp. Dec, 
 42.) 
 
 Rations of other officers are provided for 
 by sections 1578 and 1579, Re^'ised Statutes. 
 
 Commutation price of rations is fixed by 
 section 1585, Re\'ised Statutes, and amend- 
 ments thereto. The naval appropriation act 
 of June 4, 1920 (41 Stat., 825), made appropria- 
 tion for "commuted rations for * * * 
 midshipmen at $1.08 per diem." 
 
 Sec. 1578. [Rations of other oflacers.] All officers shall be entitled to one 
 ration, or to commutation therefor, while at sea or attached to a sea-going 
 vessel.— (3 Mar., 1851, c. 34, s. 1, v. 9, p. 621. 16 July, 1862, c. 183, s. 19, 
 V. 12, p. 587). 
 
 Rations of enlisted men: See act of January 30, 
 1885 (23 Stat., 291), noted under section 
 1579, Revised Statutes. 
 
 Section 1578 repealed in part. — Section 
 1578, Revised Statutes, is repealed by section 
 13 of the Navy personnel act, providing that 
 commissioned officers of the line of the Navy 
 and of the Medical and Pay Corps shall receive 
 the same pay and allowances, except forage, as 
 are or may be provided by or in pursuance of 
 law for the officers of corresponding rank in 
 the Army. The latter law was intended to 
 cover, and in exact terms provides for, all pay 
 and allowances for naval officers, except forage. 
 The later act was intended as a substitute for 
 the earlier provisions contained in section 1578. 
 (Gibson v. U. S., 194 U. S., 182.) 
 
 While section 13 of the Navy personnel act 
 of March 3, 1899 (30 Stat., 1004), provided that 
 officers of the line of the Navy and of the Medi- 
 cal and Pay Corps should not be reduced in pay 
 by virtue of said act, there is no provision 
 retaining the allowances of the former law. 
 Morever, section 26 of the Navy personnel act 
 
 pro\ddes that all acts and parts of acts, so far as 
 they conflict with its provdsions, shall be 
 repealed. The allowance of the preceding 
 statute (sec. 1578, R. S.) can not stand con- 
 sistently with the express pro-vision upon the 
 same subject of the later act. (Gibson v. U. S., 
 194 U. S., 182.) 
 
 In Gibson v. United States (194 U. S., 182) 
 it was held that the personnel act did repeal 
 sections 1578 and 1585, Revised Statutes, 
 allowing sea rations, because the later act 
 covered the same subject matter and superseded 
 the provisions of those sections. (U. S. v. 
 Thomas, 195 U. S., 418, 426.) 
 
 Prior to the passage of the act of March 3, 
 1899, officers of the Navy were entitled to rations 
 or commutation thereof imder sections 1578- 
 1579, Revised Statutes. By the Navy person- 
 nel act of that date, the pay and allowances of 
 the line. Medical, and Pay ( 'orps were assimila- 
 ted to those of officers of corresponding rank in 
 the Army, and the pay and allowances of com- 
 missioned warrant officers, created by that act, 
 were assimilated to the pay and allowances then 
 
 893 
 
Sec. 1578. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 allowed a second lieutenant in the Marine Corps. 
 Aa the allowance of a ration was not an allowance 
 to which olhcers of the Army and Marine Corps 
 were entitled, the said officers of the Navy 
 whose ])ay and allowances were so assimilated 
 were not entitled thci^eto after the passage of the 
 act of March 3, 18!)!); but the right of other 
 officers of the Navy to said allowance was not 
 affected thereby. (15 Comp. Dec, 8.) 
 
 The act of June 29, 1906 (34 Stat., 554), 
 assimilating the pay and allowances of chaplains 
 in the Navy to those of line officers of the Navy, 
 prevents the allowance of rations to chaplains 
 after the approval of said act. (15 Comp. Dec, 
 651.) 
 
 Following the enactment of the Na\'y person- 
 nel act of March 3, 1899, the appropriation acts 
 for the Navy have since provided for commuted 
 rations for officers on sea duty, other than com- 
 missioned officers of the line, Medical and Pay 
 Corps, and chief warrant officers. (26 Comp. 
 Dec, 42.) 
 
 By the naval appropriation act of June 4, 
 1920 (41 Stat., 825), appropriation is made for 
 "commuted rations for officers on sea duty 
 (other than commissioned officers of the line, 
 Medical and Supply Corps, chaplains, chief 
 boatswains, chief gunners, chief carpenters, 
 chief machinists, chief pay clerks, and chief 
 sailmakers) at 68 cents per diem, and midship- 
 men at §1.08 per diem * * * ." 
 
 The law on this subject was incorporatedin 
 article 4517 (1), Navy Regulations, 1913, 
 which pro\ddes: "With the exception of com- 
 missioned officers of the line, Medical Corps, 
 and Pay Corps, and of chaplains and commis- 
 sioned warrant officers, all officers of the Navy 
 are entitled to one ration or to commutation 
 therefor at the rate of thirty cents a day while 
 doing duty on board a seagoing vessel of the 
 Navy. Midshipmen are entitled to one ration, 
 or to commutation therefor, at all times." 
 (26 Comp. Dec, 42.) 
 
 The officers of the Navy who were entitled to 
 receive a ration prior to the passage of the act of 
 May 13, 1908 (35 Stat., 127), are still entitled to 
 that allowance under the provision of said act 
 prohibiting the reduction of pay or allowances, 
 and also by the express terms of the appropria- 
 tion, "Provisions, Navy," which specifically 
 excludes from its application the said officers 
 who were not entitled to rations under the 
 Navy personnel act. (15 Comp. Dec, 8.) 
 
 Under the act of May 13, 1908, all officers of 
 the Navy, other than the commissioned officers 
 of the line, M-edical and Pay Corps, and com- 
 missioned warrant officers, are entitled to ra- 
 tions or commutation therefor while on sea 
 duty. (15 Comp. Dec, 8; modified, as to 
 chaplains, by 15 Comp. Dec, 651, noted above.) 
 
 The act of May 13, 1908 (35 Stat., 127), except 
 as stated in the saving clause thereof, repealed 
 sections 1578 and 1579, Re\dsed Statutes, so far 
 as said sections applied to commissioned 
 officers. (25 Comp. Dec, 125.) 
 
 The act of May 13, 1908 (35 Stat., 127), pro- 
 vided that all commissioned officers of the 
 Navy shall receive the same allowances, ac- 
 cording to rank and length of service. The 
 effect of this pro\ision was either to confer the 
 right to rations upon commissioned officers not 
 already receiving same or to take away the right 
 
 to rations from commissioned officers of the 
 class entitled to receive same under section 
 1578, Revised Statutes, because their allow- 
 ances had not been assimilated to those of the 
 Army by the Navy personnel act of March 3, 
 1899. (25 Comp. Dec, 125.) 
 
 In 15 Comp. Dec, 8, it was held that officers 
 of the Navy who were entitled to rations while 
 on sea duty prior to the passage of the act of 
 May 13, 1908, were still entitled thereto be- 
 cause of the pro\ision in said act prohibiting a 
 reduction in pay and allowances. However, 
 it is now held, that a naval constructor ap- 
 pointed to office since the act of May 13, 1908, 
 is not vvithin the saving clause therein prohibit- 
 ing reduction of pay and allowances, and ac- 
 cordingly is not entitled to commutation of ra- 
 tions while on sea duty. (25 Comp. Dec, 125.) 
 
 Under the act of June 30, 1914 (38 Stat., 
 403), which created the grade of acting chap- 
 lain, and provided that ' 'while so serving 
 acting chaplains shall have the rank, pay, 
 and allowances of lieutenant, junior gi'ade, in 
 the Navy," held, that acting chaplains are not 
 entitled to rations or commutation thereof, 
 because lieutenants, junior grade, are not 
 entitled thereto. (File 26254-2333, July 23, 
 1917.) 
 
 Cominissioned warrant officers. — Neither 
 the Navy personnel act of March 3, 1899 (30 
 Stat., 1004), which created the grade of chief 
 gunner, nor any other law, authorizes rations or 
 commutation thereof to chief gunners of the 
 Navy. (15 Comp. Dec, 874; see note to sec 
 1556, R. S., as to pay and allowances of commis- 
 sioned warrant officers.) 
 
 Marine officers. — An officer in the Marine 
 Corps attached to a seagoing vessel is not 
 entitled to the ration allowed by section 1578, 
 Revised Statutes, to a naval officer so attached. 
 (Reid V. U. S., 18 Ct. Cls., 625.) 
 
 Warrant officers. — A warrant officer while 
 on duty at sea, or attached to a seagoing vessel, 
 is entitled to rations in kind or to commutation 
 therefor; whichever he accepts precludes him 
 from receipt of the other. (26 Comp. Dec, 42.) 
 
 A paymaster's clerk of the Navy who, 
 while en route to his place of ser\'ice on the 
 Island of Guam, performed temporary duty on 
 the steamer Supply, is not entitled to reim- 
 bursement of traveling expenses; but under 
 section 1578, Revised Statutes, he is entitled to 
 a ration or commutation thereof. Under the 
 orders issued to him he was temporarily attached 
 to a seagoing vessel and doing duty thereon. 
 If he did not receive rations in kind, he is en- 
 titled to commutation of rations for the period 
 while on said duty. (10 Comp. Dec, 107.) 
 
 Checkage of difference between actual 
 cost and commuted value of rations. — A 
 warrant officer of the Navy who has been sub- 
 sisted in the general mess is not entitled to 
 commuted rations, nor is he liable for the dif- 
 ference between the monetary value of the 
 ration in kind and the value of a commuted 
 ration. (26 Comp. Dec, 42, distinguishing 
 Comp. Dec, Feb. 18, 1910, noted below.) 
 
 The accounts of officers subsisted by the gen- 
 eral mess of a vessel while serving temporarily 
 on shore should be checked with the cost of 
 rations issued, as shown by the actual issues 
 during the period covered by their subsistence, 
 
 894 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1579. 
 
 and not with the commutation value of the ra- 
 tion as fixed by section 1585, Revised Statutes. 
 (Comp. Dec, P'eb. 18, 1910, 108 S. and A. 
 Memo., 1335, 52 MS. Comp. Dec, 857. Note: 
 This case is distinguished from that considered 
 in 2t) Comp. Dec, 42, noted above, in that the 
 
 officers referred to in this decision were not 
 entitled to either a ration in kind or to commu- 
 tation in lieu thereof. See 26 Comp. Dec, 42.) 
 For other cases, see note to section 1579, 
 Re\i8ed Statutes. 
 
 Sec. 1679. [When rations not allowed.] Xo person not actually attached 
 to and doing duty on board a sea-going vessel, except the petty officers, seamen, 
 and ordinary seamen attached to receiving-ships or to the ordinary of a navy- 
 yard, and midshipmen, shall be allowed a ration. — (3 Mar., 1851, c. 34, s. 1, 
 v. 9, p. 621. 28 July, 1866, c. 296, s. 8, v. 14, p. 322. 28 Feb., 1867, c. 100, s. 
 2, V. 14, p. 416.) 
 
 See notes to sections 1578 and 1579, Revised 
 Statutes, and see section 1595, Re\dsed 
 Statutes, as to retired officers. 
 This section was amended by act of January 
 30, 1885 (23 Stat., 291), which proAided 
 "that all enlisted men and boys in the 
 Na\y attached to any United States vessel 
 or station and doing duty thereon, and 
 naval cadets, shall be allowed a ration, or 
 commutation thereof in money, under 
 such limitations and regulations as the 
 Secretary of the Na\y may prescribe. " 
 Enlisted men. — Section 1577, ReAised 
 Statutes, pro\ides that midshipmen shall be 
 entitled to one ration, and section 1578 declares 
 that all officers shall be entitled to one ration; 
 iDut there is no affirmative law giAing a ration 
 to an enlisted man of the Navy. Section 1579 
 impliedly allows the ration to all men doing 
 duty on seagoing vessels as well as to those 
 within the exceptions mentioned in the sec- 
 tion; and this section is referred to in article 
 1120 (4), Na\y Regulations, 1909, as author- 
 izing rations. (19 Comp. Dec, 450; but see 
 act of Jan. 30, 1885, quoted above under this 
 section; and see decisions of the comptroller, 
 noted below.) 
 
 The benefits of section 1579, Revised Stat- 
 utes, granting rations to enlisted men in the 
 Na\'y, were extended by the act of January 
 30, 1885 (23 Stat., 291). These statutory pro- 
 \dsions limit the allowance of rations to 
 those enlisted men attached to some Gov- 
 ernment vessel or station and doing duty 
 thereon, and to petty officers, seamen, and or- 
 dinary seamen attached to recei\T.ng ships 
 or to the ordinary of a navy yard. (4 Comp. 
 Dec, 690.) 
 
 The act of January 30, 1885 (23 Stat., 291), 
 extends the right to rations or to commutation 
 thereof in money to all enlisted men and boys 
 in the Na\'y "attached to any United States 
 vessel or station and doing duty thereon. " 
 (5 Comp. Dec, 40.) 
 
 Enlisted men in the Na\'y are given rations 
 or commutation therefor in money by \irtue 
 of section 1579, Re\-ised Statutes, and the act 
 of January 30, 1885 (23 Stat., 291). Section 
 1579 limits the right to rations to certain speci- 
 fied classes of persons in the naval service; 
 the act of January 30, 1885, extends the right 
 to all enlisted men and boys in the ser\-ice 
 when attached to a United States vessel or 
 station and doing duty thereon. (5 Comp. 
 Dec, 177.) 
 
 Yeomen doing duty at the different head- 
 quarters of the Coast Signal Serxice are not 
 attached to any United States vessel or station 
 and doing duty thereon, within the meaning 
 of the act of January 20, 1885, granting rations 
 to certain enlisted men and boys in the NaAy, 
 and they are not entitled to rations or commuta- 
 tion thereof. (4 Comp. Dec, 690.) 
 
 On reconsideration, held, that the different 
 headquarters of the Coast Signal Ser^dce 
 where enlisted men on duty are armed perform 
 military service, and are subject to military 
 discipline, are stations within the meaning of 
 the act of January 30, 1885, and yeomen at- 
 tached to and doing duty at such stations are 
 entitled to rations or commutation thereof. 
 (5 Comp. Dec, 40.) 
 
 The naval pro^^.ng gi'ound at Indianhead, 
 Md., is not a station within the meaning of the 
 act of January 30, 1885, which provides for 
 rations for enlisted men in the Naxy attached 
 to a station, and enlisted men stationed there 
 are not entitled to rations or commutation 
 thereof. (5 Comp. Dec, 177.) 
 
 The act of 1885, while extending the right 
 of rations to those who before were not entitled 
 to it, did not remove the general prohibition 
 contained in section 1579, except in the cases 
 pro\ided for in that act. Taking the two laws 
 together, it appears that only those enlisted 
 men of the Na%'y who are attached to some 
 United States vessel or station and doing duty 
 thereon, or attached to the ordinary of a navy 
 yard, are entitled to rations. Had Congress 
 intended that all enlisted men in the ser\ice 
 should have the benefit of a daily ration or 
 commutation thereof in money, there would 
 have been no occasion to attach the conditions 
 which the law does to such a right. (5 Comp. 
 Dec, 177.) 
 
 The headquarters of the Marine Corps at 
 Washington, D. C, a place where armed forces 
 are stationed and military duties and discipline 
 are imposed, is a station, witliin the meaning of 
 the act of January 30, 1885, and a hospital 
 steward in the Navy on duty there is entitled 
 to rations or to commutation thereof. (5 Comp. 
 Dec, 561.) 
 
 The recruiting rendezvous at Chicago, 111., 
 is a naval station within the meaning of the 
 act of January 30, 1885 (Comp. Dec, Jan. 5, 
 1901, cited in 7 Comp. Dec, 408, 410.) 
 
 Enlisted men of the Navy are given rations 
 or commutation thereof by \irtue of section 
 1579, Re\ised Statutes, and the act of Janu- 
 
 895 
 
Sec. 1579. 
 
 I't. 2. REVllSED STATUTES. 
 
 The Navy. 
 
 ary 30, 1885. Under these laws, an enlisted 
 man of the Na\y, released from the custody of 
 the ciA-il authorities on hail, who reported at his 
 regular station, the recei^'ing ship at New York, 
 for duty, but was not permitted to enter on duty 
 or to remain at his station, solely because he 
 was on bail, is entitled to commutation of ra- 
 tions during the period of such enforced ab- 
 sence from iiis regular station. If he had been 
 received on board the recei\'ing ship to which 
 he was attached when he reportecf there, he 
 would be entitled to rations or commutation 
 thereof; and the erroneous action of the officer 
 in refusing to receive him on board should not 
 deprive him of his right to which he would 
 otherwise be entitled. (22 Comp. Dec, 589.) 
 
 Subsistence when absent from vessel 
 or on detached duty. — The naval appropria- 
 tion act of March 3, 1915, under the head of 
 "Pro^^sio^s, Naw," contained the following 
 appropriation: "For * * * subsistence of 
 officers and men unavoidably detained or 
 absent from vessels to which attached under 
 orders (during which subsistence rations to be 
 stopped on board ship and no credit for com- 
 mutation therefor to be given) * * *." 
 (38 Stat., 943.) A similar pro\ision was con- 
 tained in the Naw appropriation act of July 19, 
 1892 (27 Stat., 243), and in each subsequent act 
 making annual appropriation for the support of 
 the Na\'y. This proAision has been construed 
 as authorizing the payment for subsistence 
 of enlisted men while on duty under orders 
 which require them to be absent from the vessel 
 to which attached or on detached duty under 
 conditions where they are not entitled to rations 
 or commutation thereof. (22 Comp. Dec, 589, 
 citing 10 Comp. Dec, 593, and other decisions.) 
 
 Petty officers and other enlisted men who 
 may be temporarily absent from the A'essels to 
 which they are attached, under orders and 
 engaged in recruiting service for the time being 
 at places not stations mthin the purA-iew of the 
 act of January 30, 1885 (quoted above under 
 "Enlisted men"), may be subsisted while so 
 temporarily absent and the expense paid from 
 the appropriation, "Pro\isions, Navy." 
 Unless, however, they are attached to vessels 
 under orders and unavoidably aljsent therefrom, 
 they can not be subsisted at the expense of the 
 Government at places not stations within the 
 meaning of the act of June 30, 1885. (7 Comp. 
 Dec, 408.) 
 
 Under the act of July 1, 1902 (32 Stat., 679), 
 which proAdded for the subsistence of officers 
 and enlisted men of the Navy unavoidably 
 detained or absent from their vessels, a petty 
 officer attached to a vessel at the Mare Island 
 Navy Yard, who was detailed for duty at the 
 Union Iron Works at San Francisco, Calif., and 
 thereby deprived of quarters and rations on 
 board ship, was entitled while so detailed to an 
 allowance in lieu of subsistence; and the word 
 "subsistence," as used in said act, must be 
 construed as comprehending both board and 
 lodging. (10 Comp. Dec, 593.) 
 
 .Vn enlisted man who is granted leave from 
 a hospital for the convenience of the Govern- 
 ment or for the purpose of more rapidly recu- 
 perating from his illness is in the status of an 
 enlisted man on detached duty and should be 
 allowed the same subsistence as authorized for 
 
 men on detached duty. (File 26254-2883:2, 
 Oct. 30, 1919, 225 S. and A. Memo., 5026.) 
 
 It is the duty of the Government to feed and 
 quarter the enlisted men at all times, excej)t 
 when for a man's own pleasure and convenience 
 he absents himself. (26 Comp. Dec, 47.) 
 
 The language of the annual appropriations for 
 "Pro\isions, Navy," entitles enlisted men of 
 the Navy to be subsisted at the expense of the 
 United States when "unav'oidably detained or 
 absent from vessels to which attached under 
 orders (during which subsistence rations to be 
 stopped on board ship and no credit for com- 
 mutation therefor given)" and when on "de- 
 tached duty." This subsistence, it has been 
 held, may be paid to them directly in the form 
 of a per diem allowance in lieu of the payment 
 of actual expense thereof in each instance to the 
 person supplving it. (Comp. Dec, Mar. 23, 
 1917, 193 S. and A. Memo., 4198.) 
 
 An enlisted man of the Navj^ who after under- 
 going treatment at a naval hospital is ordered on 
 sick leave of absence is in a duty status and 
 entitled to the per diem allowance for subsist- 
 ence for such period. (26 Comp. Dec, 47.) 
 
 Where a man's status before entering a hospi- 
 tal and upon return to duty at the Navy Depart- 
 ment at the expiration of sick leave of absence 
 was that of an enlisted man ' ' on detached duty 
 from vessel or shore station," he is recognized 
 as ''on duty" while on such sick leave of 
 al)sence, and his status for purposes of subsist- 
 ence per diem was not changed from "on 
 detached duty" by being ordered to take sick 
 leave. (26 Comp. Dec, 47.) 
 
 The provision in the act of March 3, 1897 (29 
 Stat., 657), for subsistence of officers temporarily 
 absent from their vessels, does not apply to 
 officers separated from their vessel by reason of 
 its loss or destruction, while they are in receipt 
 of their sea pay and allowances under section 
 1574, Revised Statutes. (5 Comp. Dec, 221.) 
 
 Where a naval officer under arrest is confined 
 to a vessel, the mess of which he is a member is 
 entitled to reimbursement of his share of the 
 mess expenses incurred on account of subsist- 
 ence. (9 Comp. Dec, 711.) 
 
 Officers of the Navy on sea duty who are not 
 entitled to a ration or commutation thereof are 
 not entitled to allowance for subsistence when 
 performing temporary duty which requires 
 their absence from the ship to which attached 
 and which does not require their detachment 
 from the ship nor affect their sea-duty status. 
 (Comp. Dec, Jan. 29, 1917, 191 S. and A. 
 Memo., 4145.) 
 
 The appropriation "Provisions, Navy," for 
 "subsistence of officers and men unavoidably 
 detained or absent from vessels to which at- 
 tached under orders (during which subsistence 
 rations to be stopped on board ship and no 
 credit for commutation therefor to be given)," 
 was intended to authorize the payment of sub- 
 sistence of only such officers of a ship so absent 
 as would have been entitled to a ration or com- 
 mutation thereof at the expense of the Govern- 
 ment had they not been thus absent from their 
 vessels. Accordingly, this appropriation has no 
 application to officers who would not have been 
 entitled to subsistence ration or commutation 
 therefor had they in fact continued on ship- 
 
 896 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1579. 
 
 board. (Comp. Dec, Jan. 29, 1917, 191. S. and 
 A. Memo., 4145.) 
 
 The appropriation under "Pay, miscel- 
 laneous, ' ' for ' ' actual expenses of officers -while 
 on shore patrol duty," and for "relief of vessels 
 in distress; recovery of valuables from ship- 
 ■vrrecks," does not authorize allowance of sub- 
 sistence to officers on shore engaged in salvage 
 operations requiring their temporary absence 
 from their vessels; nor are such officers entitled 
 to subsistence allowance from the appropriation 
 for "Contingent, Navv." (Comp. Dec, Jan. 
 29, 1917, 19f S. and A."Memo., 4145.) 
 
 See below, under "Officers temporarily 
 absent from vessel." 
 
 Officers of receiving ships. — A recei\dng 
 ship at anchor is not "a seagoing vessel" 
 within the meaning of the Revised Statutes, 
 sections 1578 and 1579; accordingly a boatswain 
 in the Navy attached to such ship is not entitled 
 to a ration. (Frary v. U._ S., 24 Ct. Cls., 114.) 
 
 Section 1579 is a limitation upon section 1578 ; 
 the one gives and the other takes away, and that 
 alone which remains stands as the law. To 
 entitle officers and other persons, with some ex- 
 ceptions, to rations, they must be either at sea 
 or actually attached to and doing duty on a sea- 
 going vessel, whether such vessel be at sea or not. 
 That Congress intended to exclude receiving 
 ships from that designation as seagoing vessels 
 is conclusively shown by the exception in sec- 
 tion 1579, which, after prohibiting the allowance 
 of rations to persons not on a seagoing vessel 
 expects petty officers, seamen, and ordinary 
 seamen attached to receiving ships. An excep- 
 tion is part of what is previously described and 
 not of something else. (Frary v. U. S., 24. Ct. 
 Cls., 114; 21 Comp. Dec, 318.) 
 
 A mate in the Navy on duty on a receiving 
 ship is entitled, under the decision in Fuller v. 
 United States (noted below), to rations or com- 
 mutation therefor. (Baxter v. U. S., 32 Ct. 
 Cls., 75.) 
 
 A pavTnaster's clerk attached to and doing 
 duty on a receiving ship is not entitled to rations, 
 notwithstanding that the vessel used as a receiv- 
 ing ship, instead of being a stationary hulk, as 
 was formerly the case is a seaworthy vessel; 
 that it has a regular complement for sea service 
 which, with the vessel, are held in readiness to 
 go to sea on short notice; and that, in addition, 
 she has a complement as a receiving ship for 
 receiving-ship duty which, if the vessel is 
 ordered to sea, remains, being automatically 
 transferred to another vessel designated to act 
 as receiving ship to take the place of the former 
 vessel ordered to sea. The vessel, acting in her 
 capacity as receiving ship, is stationary and 
 does not go to sea, and, so far as her receiving 
 ship complement is concerned, is not a seagoing 
 vessel within the meaning of section 1579, 
 Revised Statutes. (21 Comp. Dec, 314.) 
 
 Warrant officer on training ship. — \\Tiere 
 a vessel is attached to a naval training station to 
 be used for training landsmen and apprentices, 
 but is also commissioned with all sails bent and 
 kept in readiness to go to sea, a boatswain at- 
 tached to said training station for such duty as 
 the commandant thereof may assign him at the 
 station under his command, who is detailed by 
 the commandant to dutj^ on board said vessel 
 and such other duty as may be assigned to him 
 
 at said station, and is fimiished quarters and 
 messes on board of such v'essel, is entitled to 
 rations or conunutation thereof while on said 
 duty. (14 Comp. Dec, 233.) 
 
 Ordinary of a navy yard. — The term 
 "ordinary of a navy yard," as used in Revised 
 Statutes, section 1579, refers to ships laid up in 
 ordinary at a navy yard. The meaning of the 
 section is that petty officers, etc., though not 
 upon a "seagoing vessel," may be allowed a 
 ration if "actually attached to and doing duty " 
 on shipboard. But it does not extend to the 
 apothecarv" of the Navy Academy. (Button v. 
 U. S., 20 Ct. Cls., 423.) 
 
 An apothecary in the Navy detailed to and 
 doing duty at the marine barracks is not "at- 
 tached to the ordinary of a navy yard" within 
 the meaning of the Revised Statutes, section 
 1579, and therefore is not entitled to a daily 
 ration. (Herbert v. U. S., 21 Ct. Cls., 53.) 
 
 See section 1534, Revised Statutes, as to ves- 
 sels laid up in ordinary. 
 
 Judge Advocate General. — The provisions 
 of section 1579, Revised Statutes, preclude the 
 allowance of a sea ration to the Judge Advocate 
 General, whose duty is in the Navy Depart- 
 ment, the law then in effect providing that the 
 Judge Advocate General shall hav'e the "allow- 
 ances" of a captain in the Navy. (Lemly v. 
 U. S., 28 Ct. Cls., 468.) 
 
 Mates. — Elates are petty officers, and as such 
 are entitled to rations or conunutation therefor. 
 (U. S. V. Fuller, 160 U. S., 593; see also sec. 
 1408, R. S., as to status of mates.) 
 
 The exceptions of mates from section 1569, 
 Revised Statutes, merely indicates that Con- 
 gress, having already fixed their pay by section 
 1556, such pay need not be fixed by the Presi- 
 dent. But they are still within the exception 
 of "petty officers, seamen, and ordinary seamen 
 attached to receiving ships, " who are inferenti- 
 ally allowed a ration by section 1579. The 
 exception of mates from other petty officers in 
 section 1569 indicates that they are petty 
 officers, and the exception of petty officers 
 from those who are not entitled to rations under 
 section 1579 indicates that as such thev" are 
 entitled to a ration. (U. S. v. Fuller, 160 U. S. 
 593.) 
 
 Officers temporarily absent from ves- 
 sel. — See above, under "Subsistence when 
 absent from vessel or on detached duty." 
 
 Officers of the Navy on sea duty, temporarily 
 located on shore for the convenient and efficient 
 performance of the services required of them 
 under competent orders, are entitled to sea- 
 duty pay but not to commutation of rations 
 under section 1579, Revised Statutes, which 
 authorizes commutation of rations only while 
 actually performing duty on board a seagoing 
 vessel. (27 Comp. Dec, 222.) 
 
 Under section 1579, a warrant officer is en- 
 titled to commutation of rations only when actu- 
 ally attached to and doing duty on board a 
 seagoing vessel. A pay clerk attached to but 
 not actually doing duty on board a seagoing 
 vessel is not entitled to commutation of rations, 
 although his temporary situation on shore, due 
 to the exigencies of the service, did not change 
 the character of his duty as sea duty; yet the 
 law requires that he must in fact perform duty 
 on board a seagoing vessel to entitle him to a 
 
 897 
 
Sec. 1580. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 ration. The word "actually" will not permit 
 a constructive status; and therefore the pay 
 clerk, although on sea duty and attached to a 
 seagoing vessel, while so tenij)orarily located 
 on shore is not entitled to commutation of 
 rations. (Comp. Dec, Sept. 2, 1920, file 
 26254-3232.) 
 
 Temporarily in hospital. — See note above, 
 under "Subsistence when absent from vessel 
 or on detached duty." 
 
 Where an officer attached to a seagoing vessel 
 was entitled to commutation of rations, under 
 section 1578, Rev'ised Statutes, his temporary 
 absence in hospital, under treatment, without 
 being detached from his vessel, did not deprive 
 him of such commutation. (Collins v. U. S., 
 37 Ct. Cls., 222, 226.) 
 
 By section 4812, Revised Statutes, for every 
 Navy officer, seamen, or marine admitted into 
 a Na\^ hospital the institution shall be allowed 
 one ration per day during his continuance 
 therein, "to be deducted from the account of 
 the United States -with such officer, seamen, 
 or marine." By the annual naval appropria- 
 tion act, under "Provisions, Navy," appropria- 
 tion is made for "commuted rations stopped on 
 account of sick in hospital and credited to the 
 naval hospital fund." This appropriation 
 shows that the law contemplates a condition 
 where a man may be in hospital while at the 
 same time he is entitled to be credited A\ith a 
 ration, for otherwise there would be no ration to 
 be stopped for the sick, and no appropriation 
 would be necessary if the ration were to be 
 charged against his pay, as provided by section 
 4812. This appropriation means simply that 
 the commutation of rations to which a person 
 is entitled by being attached to a seagoing 
 vessel is to be transferred to the hospital to 
 which he is sent, and the statute makes an 
 appropriation to pay for the same. Of course 
 the appropriation would not apply where an 
 officer becomes detached from his vessel while 
 in hospital or on being sent there. (4 Comp. 
 Dec, 458.) 
 
 Under the appropriation for commuted 
 rations for the Navy, a paymaster's clerk at- 
 tached to a seagoing vessel who is temporarily 
 in hospital without being detached from his ship 
 is entitled to commutation of rations, which 
 should be credited to the naval hospital fund 
 in accordance \vith the language of the appro- 
 priation; and no deduction should be made 
 from the pay of such pa^Tuaster's clerk on ac- 
 count of rations credited to the hospital, as 
 provided by section 4812, Revised Statutes. 
 (4 Comp. Dec, 458.) 
 
 The appropriation for commutation of rations 
 stopped on account of sick in hospital and cred- 
 ited to the naval hospital fund repeals, in effect, 
 
 the requirement of section 4812, Revised 
 Statutes, that one ration per day shall be de- 
 ducted from the account of every naval officer 
 sent to the hospital, in cases where the ofHcer 
 is not detached from sea duty and is entitled 
 to a ration; but the ration to which the officer 
 would otherwise be entitled by reasons of his 
 sea status goes to the hospital. (4 Comp. Dec, 
 644.) 
 
 WTiere an officer of the Navy not entitled to 
 rations is ordered to a hospital for treatment, 
 charges of the value of one ration per day should 
 be made against the pay of such officer. (17 
 Comp. Dec, 663.) 
 
 Section 4812, Revised Statutes, has been 
 held to mean that the naval hospital fund is 
 entitled to one ration or the value thereof per 
 day for each person treated in a naval hospital, 
 and when the officer is not entitled to rations 
 the value of one ration is deducted from his 
 pay and credited to said fund. This practice 
 began \\-ith the first law depri^dng officers of 
 rations and has continued to the present time. 
 Under Navy Regulations 1909, article 1129 (1), 
 this practice applies to officers under treatment 
 in foreign hospitals. (17 Comp. Dec, 663.) 
 
 Although a retired enlisted man on inactive 
 duty is entitled to only $9.50 per month, "in 
 lieu of rations and clothing," and something 
 less than .$9.50 is in lieu of rations, some portion 
 of the amount being in lieu of clothing, hrld, 
 that under section 4812, Re\ised Statutes, the 
 account of such enlisted man, while under 
 treatment in a naval hospital, should be 
 checked 68 cents per day as the value of a ra- 
 tion for each day that he is subsisted as a patient 
 and said amount credited to the institution, 
 the act of July 11, 1919 (41 Stat., 147), having 
 fixed this as the commutation value of a Navy 
 ration until the close of the fiscal vear 1921. 
 (26 Comp. Dec, 784. Note: By said act of 
 July 11, 1919, under "Provisions, Navy," 
 appropriation was made for "commuted ra- 
 tions stopped on account of sick in hospital 
 and credited at the rate of 50 cents per ration 
 to the naval hospital fund.") 
 
 Court-martial prisoners. — Annual appro- 
 priation, under "Provisions, Navy," is made 
 for "subsistence of * * * general courts- 
 martial prisoners undergoing imprisonment 
 with sentences of dishonorable aischarge from 
 the service at the expiration of such confine- 
 ment," with the proviso, "That the Secretary 
 of the Navy is authorized to commute rations 
 for such general courts-martial prisoners in 
 such amounts as seem to him proper, which 
 may vary in accordance with the location of 
 the naval prison, but which shall in no case 
 exceed 30 cents per diem for each ration so 
 commuted." 
 
 Sec. 1580. [Navy ration, constituents of.] The Navy ration shall consist 
 of the following daily allowance of provisions to each person: One pound and a 
 quarter of salt or smoked meat, wdth thi'ee ounces of dried or six ounces of 
 canned or preserved fruit, and three gills of beans or pease, or twelve ounces of 
 flour; or one pound of preserved meat, with three ounces of dried or six ounces 
 of canned or preserved fruit and eight ounces of rice or twelve ounces of canned 
 vegetables, or six ounces of desiccated vegetables; together with one pound of 
 
 898 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1581. 
 
 biscuit, two ounces of butter, four ounces of sugar, two ounces of coffee or cocoa, 
 or one-half ounce of tea and one ounce of condensed milk or evaporated cream; 
 and a weekly allowance of one-quarter pound of macaroni, four ounces of 
 cheese, four ounces of tomatoes, one-half pint of vinegar or sauce, one-quarter 
 pint of pickles, one-quarter pmt of molasses, four ounces of salt, one-half ounce 
 of pepper, one-eighth ounce of spices, and one-haK ounce of dry mustard. 
 Seven pounds of lard, or a suitable substitute, shall be allowed for every hundred 
 pounds of flour issued as bread, and such quantities of yeast and flavoring 
 extracts as may be necessary. 
 
 This section was expressly amended 
 and reenacted to read as above by act of 
 June 29, 1906 (34 Stat., 570). As originally 
 enacted, it read as follows: 
 
 "Sec. 1580. The Nav-y ration shall consist of 
 the following daily allowance of provisions to 
 each person : One pound of salt pork, with hah 
 a pint of beans or peas; or one pound of salt beef, 
 with half a pound of flour and two ounces of 
 dried apples, or other dried fruit; or three- 
 quarters of a pound of preserv'ed meat, with a 
 half pound of rice, two ounces of butter, and 
 one ounce of desiccated 'mixed vegetables;' 
 or three-quarters of a pound of preserved meat, 
 two ounces of butter, and two ounces of desic- 
 cated potatoes; together with fourteen ounces 
 of biscuit, one-quarter of an ounce of tea, or one 
 ounce of coffee or cocoa, and two ounces of 
 sugar; and a weekly allowance of half a pint of 
 pickles, half a pint of molasses, and half a pint 
 of Ainegar."— (18 July, 1861, c. 7, s. 1, v. 12, 
 p. 264. 14 July, 1862, c. 164, s. 4, v. 12, p. 565.) 
 
 It had previously been amended and 
 reenacted by act of July 1, 1902 (32 Stat. , 679), 
 to read as follows: 
 
 "Sec. 1580. The Navy ration shall consist of 
 the following daily allowance of provisions to 
 each person: One pound and a quarter salt or 
 smoked meat, vnth three ounces of dried or six 
 ounces of canned fruit, and three gills of beans 
 or peas, or twelve ounces of flour; or one pound 
 of preser\'ed meat, with three ounces of dried or 
 six ounces of canned fruit, and twelve ounces of 
 rice or eight ounces of canned vegetables or four 
 ounces of desiccated vegetables; together with 
 
 one pound of biscuit, two ounces of butter, four 
 ounces of sugar, two ounces of coffee or cocoa or 
 one-half ounce of tea and one ounce of con- 
 densed milk or evaporated cream ; and a weekly 
 allowance of one-half pound of macaroni, four 
 ounces of cheese, four ounces of tomatoes, one- 
 half pint of vinegar, one-half pint of pickles, 
 one-half pint of molasses, four ounces of salt, 
 one-quarter ounce of pepper, and one-half 
 ounce of dry mustard. Five pounds of lard or a 
 suitable substitute shall be allowed for e/ery 
 hundred pounds of flour issued as bread, and 
 such quantities of yeast as may be necessary." 
 
 Refuse of rations is Government prop- 
 erty. — Theoretically, the component parts of 
 the ration are issued to the indi\idual men, and 
 such may originally have been the practice; 
 but it is the practice now, and has been for a 
 long time, to subsist the men by means of the 
 commissaiy department of the vessel. The 
 men have nothing to do with the ration, but 
 only with food cooked and placed on the table 
 for their use as food ; the whole issue and prep- 
 aration is done by persons appointed and paid 
 by the Government for the purpose. Held, 
 that the enlisted men are entitled to use the 
 articles furnished as food to be eaten, but with 
 no interest in the refuse, which remains pubhc 
 property; and that the proceeds from sale of 
 garl)age from the general mess of a recei\ing 
 ship should be covered into the Treasury as 
 miscellaneous receipts. (19 Comp. Dec, 450.) 
 
 For other cases, see note to section 1581, 
 Re\'ised Statutes. 
 
 Sec. 1581. [Substitutions in rations, and extra allowance for night watches.] 
 The following substitution for the components of the ration may be made when 
 deemed necessary by the senior officer present in command: "For one and one- 
 quarter pounds of salt or smoked meat or one pound of preserved meat, one and 
 three-quarter pounds of fresh meat or fresh fish, or eight eggs; in lieu of the 
 articles usually issued with salt, smoked, or preserved meat, one and three-quar- 
 ter pounds of fresh vegetables; for one pound of biscuit, one and one-quarter 
 pounds of soft bread or eighteen ounces of flour; for three gills of beans or pease, 
 twelve ounces of flour or eight ounces of rice or other starch food, or twelve 
 ounces of canned vegetables; for one pound of condensed milk or evaporated 
 cream, one quart of fresh milk ; for three ounces of dried or six ounces of canned 
 or preserved fruit, nine ounces of fresh fruit; and for twelve ounces of flour or 
 eight ounces of rice or other starch food, or twelve ounces of canned vegetables, 
 three giUs of beans or pease; in lieu of the weekly allowance of one-quarter pound 
 
 899 
 
Sec. 1581. 
 
 rt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 of macaroni, four ounces of cheese, one-half pint of vinegar or sauce, one-quarter 
 pint of pickles, one-{juarter pint of molasses, and one-eighth ounce of spices, 
 tlii'ee pounds of sugar, or one and a half pounds of condensed milk, or one pound 
 of coffee, or one and a half pounds of canned fruit, or four pounds of fresh 
 vegetables, or four pounds of flour. 
 
 "An extra allowance of one ounce of coffee or cocoa, two ounces of sugar, 
 four ounces of hard bread or its equivalent, and four ounces of preserved meat 
 or its equivalent shall be allowed to enlisted men of the engineer and dynamo 
 force who stand night watches between eight o'clock postmeridian and eight 
 o'clock antemeridian, imder steam." 
 
 Any article comprised in the Navy ration may be issued in excess of the 
 authorized quantity, provided there be an under issue of the same value in some 
 other article or articles. 
 
 This section Awas expressly amended and 
 reenacted to read as above by acts of June 29, 
 1906 (34 Stat., 571), and March 2, 1907 (34 Stat., 
 1193), the araendrnent made by the act last 
 cited consisting of the addition to section 1.581 
 of the last paragraph thereof, as above set forth. 
 As originally enacted, it read as follows: 
 
 " Sec. 1581. The following substitution for the 
 components of the ration may be made when it 
 is deemed necessary by the senior officer 
 present in command: For one pound of salt 
 beef or pork, one pound and a quarter of fresh 
 meat or three-quarters of a pound of preserved 
 meat; for any or all of the articles usually issued 
 with the salted meats, vegetables equal to the 
 same in value; for fourteen ounces of biscuit, 
 one pound of soft bread, or one pound of flour, 
 or half a pound of rice; for half a pint of beans or 
 peas, half a pound of rice, and for half a pound 
 of rice, half a pint of beans or peas. And the 
 Secretary of the Na\'y may substitute for the 
 ration of coffee and sugar the extract of coffee 
 combined with milk and sugar, if he shall 
 believe such substitution to be conducive to the 
 health and comfort of the Navy, and not to be 
 more expensive to the Government than the 
 present ration: Provided, That the same shall be 
 acceptable to the men." — (18 July, 1861, c. 7, 
 ss. 2, 3, 4, v. 12, p. 265. 17 April, 1862, c. 57, 
 s. 4, v. 12, p. 381.) 
 
 It was previously amended bv act of May 
 3, 1880 (21 Stat., 86), which proA-ided that "the 
 Secretary of the Navy may substitute for the 
 ration of 'two ounces of desiccated potatoes' 
 six ounces of desiccated tomatoes if he shall 
 believe such substitution to be conducive to 
 the health and comfort of the Navy, and not to 
 be more expensive to the Government than the 
 present ration, provided the same shall be ac- 
 ceptable to the men. In the event the Secre- 
 tary of the NaA^ orders such substitution he is 
 authorized to have sold at i)ublic auction any 
 desiccated potatoes on hand, the proceeds of 
 which sale shall be used in the purchase of desic- 
 cated tomatoes for the use of the Navy." 
 
 It was again amended by act of July 1, 1902 
 (32 Stat., 680), which exj^ressly repealed the 
 provision above quoted from the act of May 3, 
 1880, and reenacted section 1581 to read as 
 follows: 
 
 "Sec. 1581. The following substitution for 
 the components of the ration may be made when 
 
 deemed necessary by the senior officer present 
 in command: 
 
 "For one and one-quarter pounds of salt or 
 smoked meat or one pound of preserved meat, 
 one and three-quarters pound of fresh meat; in 
 lieu of the article usually issued Anth salt, 
 smoked, or preserved meat, fresh vegetables of 
 equal value; for one pound of biscuit, one and 
 one-quarter pounds of soft bread, or eighteen 
 ounces of flour; for three gills of beans or peas, 
 twelve ounces of flour or rice or eight ounces of 
 canned vegetables, and for twelve ounces of 
 flour or rice or eight ounces of canned vege- 
 tables, three gills of beans or peas." 
 
 The act of July 1, 1902 (32 Stat., 680), also 
 enacted the folloAving clause, but not as a part 
 of section 1581, although, with slight verbal 
 change, embraced in that section as reenacted 
 by tbe act of June 29, 1906: 
 
 "That an extra allowance of one ounce of 
 coffee or cocoa, two ounces of sugar, four ounces 
 of hard bread or its equivalent, and four ounces 
 of preserved meat or its equivalent shall be 
 allowed to enlisted men of the engineer and 
 dynamo force when standing night watches 
 between eight o'clock postmeridian and eight 
 o'clock antemeridian under steam." 
 
 A provision similar to that last quoted was 
 enacted by act of May 22, 1917, section 21 (40 
 Stat., 90), which applied only for the period of 
 the then existing war, and extended said extra 
 allowance to enlisted men of the deck force. 
 See note to section 1584, Revised Statutes. 
 
 Issue of fruits with fresh meat. — WTien 
 fresh meat is substituted for salt, smoked, or 
 preserved meat, "three ounces of dried, or six 
 ounces of canned or preserved fruit," may be 
 issued therewith; or "nine ounces of fresh 
 fruit " may be substituted for the dried, canned, 
 or preserved fruit. (File 21177-3, Jan. 25, 
 1911.) 
 
 "When "one and three-quarter pounds of 
 fresh vegetables" are issued vnth fresh meat as 
 a substitute for ' ' the articles usually issued vnth. 
 salt, smoked, or preserved meat," there may 
 be issued therewith "one and a half pounds of 
 canned fruit, " or such portion thereof as desired, 
 "in lieu of the ircekli/ allowance of one-quarter 
 pound of macaroni, four ounces of cheese, one- 
 half pint of vinegar or sauce, one-quarter pint 
 of pickles, one-quarter pint of molasses, and 
 
 900 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1585. 
 
 one-eighth ounce of spices." (File 21177-3, 
 Jan. 25, 1911.) 
 
 WTien fresh meat is issued with dried, canned, 
 or preserved fruit, or A\ith fresh fruit, in ac- 
 cordance with above ruling, there may also be 
 issued there-n-ith "four pounds of fresh vege- 
 tables," or such portion thereof as desired, "in 
 lieu of the weekly allowance of one-quarter 
 pound of macaroni," and other items specified 
 above. (File 21177-3, Jan. 25, 1911.) 
 
 Any of the articles above enumerated may 
 be issued in excess of the quantities stated, 
 "provided there be an under issue of the same 
 
 value in some other article or articles." (File 
 21177-3, Jan. 25, 1911.) 
 
 Substitution for butter. — The Navy ration 
 includes a daily allowance to each person of 
 "two ounces of butter." Substitutes are 
 authorized for certain components of the ration, 
 not including, however, butter, as to which, 
 accordingly, no substitution can be made. 
 Held, therefore, that oleomargarine or butterine 
 can not legally be substituted for butter as a 
 part of the Navv ration. (File 19398-34, Apr. 
 14, 1913; 148 S. and A. Memo., 2682.) 
 
 Sec. 1582. [Short allowance.] In case of necessity the daily allowance of pro- 
 visions may be diminished at the discretion of the senior officer present in 
 command; but payment shall be made to the persons whose allowance is thus 
 diminished, according to the scale of prices for the same established at the 
 time of such diminution. And every commander who makes any diminution 
 or variation shall give to the paymaster ^^Titten orders therefor, specifying 
 particularly the diminution or variation which is to be made, and shall report 
 to his commanding officer, or to the Navy Department, the necessity for the 
 same.— (18 July, 1861, c. 7, s. 4, v. 12, p. 265.) 
 
 Sec. 1583. [Rations stopped for the sick.] Rations stopped for the sick on 
 board vessels shall remain and be accounted for by the paymaster as a part of 
 the provisions of the vessels. — (3 Mar.. 1851, c. 34, s. 1, v. 9, p. 621. 22 June, 
 1860. c. 181, s. 3, V. 12, p. 83.) 
 
 See act of March 29, 1894 (28 Stat., 47), as to 
 rendition of property accounts, noted 
 under section 236, Revised Statutes, under 
 "III. Limitations upon Jurisdiction." 
 
 See note to section 1579, Revised Statutes, 
 under "Temporarily in hospital"; and see 
 section 4812, Revised Statutes. 
 
 Sec. 1584. [Additional ration. Repealed.] 
 
 This section provided as follows: 
 
 "Sec. 1584. An additional ration of tea or 
 coffee and sugar shall be hereafter allowed to 
 each seaman, to be provided at his first 'turn- 
 ing out.' "—(23 Mav, 1872, c. 195, s. 1, v. 17, p. 
 151.) 
 
 It was expressly repealed bv act of Julv 
 1, 1902 (32 Stat., 680). 
 
 Additional rations in special cases were 
 authorized as follows: By act of July 1, 1902 
 (32 Stat., 680), quoted above under section 
 1581, Revised Statutes, an extra allowance was 
 authorized for men standing night watches. 
 The said enactment of July 1, 1902, was super- 
 
 seded and repealed by act of .Tune 29, 1906 
 (34 Stat., 571), which reenacted same, ^vith a 
 slight verbal change, as part of section 1581 as 
 that section now reads. By act of Mav 22, 
 1917, section 21 (40 Stat., 90), the following 
 provision was enacted for the period of the war: 
 "That during the continuance of the present 
 war an extra allowance of one ounce of coffee 
 or cocoa, two ounces of sugar, four ounces of 
 hard bread or its equivalent, and four ounces 
 of preserved meat or its equivalent shall be 
 allowed to enlisted men of the deck force when 
 standing night watches between eight o'clock 
 postmeridian and eight o'clock antemeridian." 
 
 Sec. 1585. [Ration commutation.] Forty cents shall in aU cases be deemed 
 the commutation price of the Navy ration: Provided, however, That after 
 January first, nineteen hundred and eighteen, the commutation price shall 
 not exceed the average cost of the ration during the preceding six months, not 
 to exceed 40 cents. 
 
 This section was expressly amended and 
 reenacted to read as above bv act of October 
 6, 1917 (40 Stat., 397). As originally enacted, 
 it read as follows 
 
 "Sec. 1.585. Thirty cents shall in all cases be 
 deemed the commutation price of the Navv 
 ration."— (15 July, 1870, c. 295, s. 4, v. 16, d. 
 333.) 
 
 Other amendments to this section have 
 been made by clauses in the naval appropria- 
 tion acts effective for the ensuing fiscal year. 
 The act of June 4, 1920, (41 Stat., 825), under 
 " Prox-isions, Navy," contained the foUoAving: 
 "For pro\'isions and commuted rations for the 
 seamen and marines, which commuted rations 
 may be paid to caterers of messes, in case of 
 
 901 
 
Sec. 1586. 
 
 7'/. 2. REVISED STATUTES. 
 
 The Navy. 
 
 death or desertion, upon orders of llio comniand- 
 ing officers, X-ommutod rations for officers on sea 
 duty (other than commissioned officers of the 
 line, Medical and Sujjply ('orj)s, _cha]>lains, 
 chief boatswains, chief <;unners, chief carpen- 
 ters, chief machinists, chief pay clerks, and 
 chief sailmakers) at 68 cents per diem, and 
 midshipmen at?!. 08 per diem, and commuted 
 rations stopped on ai'count of sick in hospital 
 and credited at the rate of 68 cents per ration 
 to the naval hospital fund; * * * subsist- 
 ence of * * * Navy and Marine (^orps 
 general courts-martial prisoners undergoing 
 imprisonment with sentences of di.shonorable 
 discharge from the service at the expiration of 
 such confinement: Provided, That the Secre- 
 tarv of the Navy is authorized to commute 
 rations for such general courts-martial prisoners 
 in such amounts as seem to him proper, which 
 may vary in accordance Math the location of 
 the naval prison, but which shall in no case 
 exceed 30 cents per diem for each ration so 
 commuted; and for the purchase of United 
 States Army emergency rations as required." 
 The same act, under "Provisions, Marine 
 Torps" (41 Stat., 831), provided for "com- 
 mutation of rations to recruiting parties, and 
 enlisted men traveling on special duty, at 
 such rate as the Secretary of the Navy may 
 prescribe. " 
 
 Payment to commissary oflB.cer. — By act 
 of July 1, 1902 (32 Stat., 680), it was provided 
 "that money accruing from the rations of en- 
 listed men commuted for the benefit of any 
 mess may be paid on public bills to the corn- 
 missary officer by the pay officer ha^dng their 
 accounts." (See also clause quoted above, 
 from act of June 4, 1920, as to payment to 
 caterers of messes in case of death or desertion.) 
 
 Under Navv regulations prior to July 1, 1907 
 (revoked by G. O. No. 44, Apr. 16, 1907), the 
 commutation value of rations due enlisted men 
 was credited by the pay officer to himself as 
 such, and debited against himself as commis- 
 sary offi<'er in charge of the general mess, com- 
 posed of such enlisted men, the money never 
 actually leaving the pay officer's hands until 
 finally paid out in the shape of mess expend- 
 itures and not being paid over to the individual 
 enlisted men who composed the mess. It was 
 held by the Comptroller of the Treasury that 
 such commutation money in the hands of the 
 pay officer was public money until actually 
 expended by him, and he should be required 
 
 to account for its proper disbursement to the 
 accounting offi<"ers of the Treasury, the same as 
 any other public money placed in his hands 
 for disl)ursement in his official capacity. 
 (12 (omp. Dec, 678; see also 94 S. and A. 
 Memo., 923, relating to midshipmen's mess, 
 noted under sec. 236, Revised Statutes, under 
 "II. Jurisdiction of accounting officers," sub- 
 heading, "Puldic monev.") 
 
 The act of July 1, 1902 (.32 Stat., 680). author- 
 izing the payment of money accruing from the 
 rations of enlisted men "commuted for the 
 benefit of any mess," does not extend to an 
 officer's mess on shore. Officers' messes on 
 shore are voluntary, and there is no law or 
 regulation which rccosjuizes them. (Williams 
 V. U. S., 44 rt. Cls., 17.5.) 
 
 WTiere enlisted men on shipboard were de- 
 tailed to serve an officer's mess on shore, and 
 were subsisted by the mess, and their rations 
 were commuted and paid to the mess, the 
 accounting officers could disallow the payment 
 and compel the officers to refund the money. 
 (Williams v. U. S., 44 Ct. Cls., 175.) 
 
 The chief petty officers' mess and its organ- 
 ization are provided for in part by Na\-y regula- 
 tions; the duly elected treasurer of said mess is 
 not an agent of the Government, the commuted 
 rations of each member of such a mess, when 
 paid to said treasurer, are no longer public 
 funds, and may be expended by him in such 
 manner as the mess may direct. (File 26262- 
 3.363, G. C. M. Rec. 41585, C. M. O. 190, 1918, 
 pp. 17-19, holding that the treasurer of a chief 
 petty officer's mess was not guilty of "making 
 false and fraudulent official reports in violation 
 of article fourteen of the Articles for the Govern- 
 ment of the Navy" by reason of his presenting 
 false and fraudulent vouchers in rendering his 
 official statement of the accounts of said mess 
 to the members of the mess and the auditing 
 board, because the fraud was not against the 
 United States.) 
 
 Commutation defined. — Commutation in 
 the military or naval service is money paid in 
 substitution of something to which an officer, 
 sailor, or soldier is entitled. The principle 
 which governs the commutation of rations in 
 lieu of subsistence is that commutation will 
 not be allowed where subsistence in kind is 
 provided by the Government. (Jaegle v. U. S., 
 28 Ct. Cls.," 133.) 
 
 For other cases, see notes to sections 1578 
 and 1579, Revised Statutes. 
 
 Sec. 1586. [Medicines and medical attendance.] Expenses incurred by any 
 officer of the Navy for medicines and medical attendance shall not be allowed 
 unless they were incurred when he was on duty, and the medicines could not 
 have been obtained from naval supplies, or the attendance of a naval medical 
 officer could not have been had.— (15 July, 1870, c. 295, s. 17, v. 16, p. 334.) 
 
 Payment by officers and enlisted men to naval 
 
 hospital fund is required by sections 1614 
 
 and 4S08, Revised Statutes. 
 
 Duty of Government to provide medical 
 
 stores and attendance. — ^It is the peculiar 
 
 province and duty of the NaA^ Department to 
 
 provide medical stores and attendance for the 
 
 officers and seamen attached to the naval 
 
 service; this may truly be said to enter into 
 
 the contract of the Government wdth persons 
 so employed. For this purpose a Bureau of 
 Medicine" and Surgery is attached to the NaAy 
 Department, and niimerous medical officers 
 appointed. The law, moreover, exacts from 
 every officer and seaman a monthly contribu- 
 tion "from their wages to make provision for the 
 sick and disabled; and these contributions are 
 applied, under the supervision of the President, 
 
 902 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1586. 
 
 to the erection and maintenance of marine 
 hospitals and similar institutions for the bene- 
 fit of seamen. (U. S. v. Jones, 18 How., 92.) 
 
 The exigencies of the service often require 
 the employment of soldiers and sailors at a dis- 
 tance from public hospitals, and when the at- 
 tendance of medical officers can not be obtained ; 
 consequently, in fulfillment of the humane 
 policy of the Government, it frequently be- 
 comes necessary to employ temporarily physi- 
 cians not regularly commissioned, for in this 
 way alone can the department perform the duty 
 assumed by the Government of providing the 
 necessary medical attendance for those who be- 
 come sick or disabled in its service. (U. S. v. 
 Jones, 18 How., 92.) 
 
 Navy Department's action conclusive 
 upon accounting oflB.cers. — The executive 
 department of the Government to which is 
 intrusted the control of the subject matter 
 must necessarily determine all questions ap- 
 pertaining to the employment and payment of 
 civilian physicians and the exigency which 
 demands their employment. The Secretary 
 of the Navy represents the President and ex- 
 ercises his power on subjects confided to his 
 department. He is responsible to the people 
 and the law for any abuse of the powers in- 
 trusted to him. His acts and decisions on 
 subjects submitted to his jurisdiction and con- 
 trol by the Constitution and laws do not re- 
 quire the approval of any officer of another 
 department to make them valid and conclusive. 
 The accounting officers of the Treasiu^y have 
 not the burden of responsibility cast upon 
 them of revising the judgments, correcting the 
 supposed mistakes, or annulling the orders 
 of heads of departments. (U. S. v. Jones, 18 
 How., 92.) 
 
 The propriety of detaching an officer of the 
 Navy for special duty in France, of furnishing 
 him with medical attendance while so em- 
 ployed, and of adopting and ratifying his act 
 in the employment of physicians, under all 
 the circumstances, are all subjects peculiarly 
 within the jurisdiction and discretion of the 
 head of the Navy Department, and not subject 
 to revision by the officers of any other dei^art- 
 ment; and the judgment of the lower coiu-t, 
 in refusing to charge the officer with the amount 
 disbursed by him for medical attendance, 
 should be affirmed. (U. S. v. Jones, 18 How., 
 92; see also note to sees. 236 and 285, R. S.; 
 and see note to sec. 1558, R. S., under "Main- 
 tenance, attaches.") 
 
 The act of March 3, 1835, chapter 27, section 
 2, provided that "the yearly allowance pro- 
 vided in this act is all the pay, compensation, 
 and allowance which shall be received under 
 any circumstances whatever by any such offi- 
 cer," etc. (See sec. 1558, R. S.) The Secre- 
 tary of the Navy transmitted to an officer de- 
 tached on special duty in France a sum of 
 money to be disbursed for medical attendance 
 incurred by such officer. The Treasury De- 
 partment held that this was an allowance 
 prohibited by the law quoted, and charged the 
 amount so disbui-sed by the officer, according 
 to the orders of the Secretary, to the officer's 
 pay account and refused to recognize the author- 
 ity of the Secretary of the Navy in the premises. 
 Held, that the action of the Secretary was con- 
 
 clusive upon the accounting officers of the 
 Treasury. (U. S. y. Jones, 18 How., 92.) 
 
 The determination of the Secretary of the 
 Navy that expenses of an officer of the Navy 
 for medicines and medical attendance are incur- 
 red under circumstances entitling him to reim- 
 bursement is conclusive. (2 Comp. Dec, 241.) 
 
 Where the Navy Department disapproved the 
 claim of an officer for allowance of medical ex- 
 penses, the auditor correctly disallowed the 
 officer's claim. Thereafter, the Secretary of 
 the Navy having reconsidered his action, and 
 recommended allowance of the claim, although 
 the Surgeon General of the Navy still declined 
 to recommend the allowance, held, that this 
 action of the Secretary remove the ground of 
 the auditor's disallowance, and was binding 
 upon all. (2 Comp. Dec, 241.) 
 
 A claim for expenses incurred by an officer 
 of the Navy for medical attendance or medicines 
 must be accompanied by the certificate of the 
 proper officer of the Navy Department to the 
 facts in order that the accounting officers may 
 determine whether the allowance of the claim 
 is prohibited by section 1586 of the Revised 
 Statutes. (3 Comp. Dec, 250.) 
 
 Enlisted men. — An enlisted man of the 
 Navy is not entitled to medical treatment at 
 public expense while on leave of absence or 
 furlough. (19 Comp. Dec, 382.) 
 
 \^Tlere an enlisted man of the Navy, while 
 serving a court-martial sentence, as mitigated 
 by the Secretary of the Navy, does not forfeit 
 his pay and allowances, but receives the same 
 in full as when in a duty status, such enlisted 
 man is not entitled to dental treatment at 
 Government expense while so confined. The 
 general principle is that where an enlisted man 
 in confinement under sentence of court-martial 
 forfeits his pay and allowances, thus being 
 deprived of the means of procuring the things 
 necessary for his health and comfort, the duty 
 devolves upon the Government, at its own 
 expense, to furnish them to the destitute 
 prisoner; but this does not apply where pay of 
 the prisoner is not forfeited. (17 Comp. Dec, 552.) 
 
 An enlisted man f urloughed without pay for 
 the unexpired portion of his enlistment is 
 nevertheless an enlisted man in the Navy, and 
 as such is entitled, under the regulations, to 
 treatment in Navy hospitals. (File 7657^11, 
 Nov. 18, 1916, and Feb. 5, 1917; see also note 
 to sec. 1417, R. S., under "Enlisted men 
 f urloughed without pay. ") 
 
 The period of detention beyond the expira- 
 tion of enlistment of an enlisted man of the 
 Navy undergoing treatment in a Government 
 hospital is to be considered as for the con- 
 venience of the Government, and the enUsted 
 man is entitled to pay to and including the date 
 of his actual discharge. (26 Comp. Dec, 447, 
 modifying 26 Comp. Dec, 128.) 
 
 Students at the Naval Academy, desig- 
 nated as midshipmen, are officers of the Navy 
 within the meaning of section 1586, Revised 
 Statutes, and subject to the same limitations 
 relative to the obtaining of medicines and medi- 
 cal attendance fi'om other sources than the 
 United States as are other officers of the Navy. 
 (9 Comp. Dec, 375.) 
 
 A clerk to a conunandant of a navy yard 
 is neither an officer, enlisted man, or marine. 
 
 903 
 
Sec. 1586. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 anil the Secretary of the Navy is not anlhorized, 1 
 under sections IGl 1 and 48(tS, Revised Statutes, 
 to deduct 20 cents per month from his pay; 
 such a clerk is not entitled to reimbursement 
 for medicines and medical attendance. (1 
 Comp. Dec, 280.) 
 
 1 1 IS the opinion of the Navy Department that 
 members of the naval personnel who are re- 
 (jiiired to pay 20 cents monthly to the Navy 
 hospital fund should be entitled to medical 
 attendance and maintenance, or, in the absence 
 thereof, reiml)ursement for the amount ex- 
 pended for the ])urpose; and, conversely, that 
 any member of the naval personnel who is not 
 entitled to medical supplies or reimbursement 
 therefor should not be required to pay 20 cents 
 monthlv to the hospital fund. (See 1 Comp. 
 Dec, 280, 290.1 
 
 An officer of the Marine Corps injured 
 while enpiaged in an unusual and dant^erous 
 amusement is not entitled to reimbursement 
 for medical expenses incurred by him by reason 
 of such injuries, notwithstandinjT that at the 
 time he was in a duty status as distinguished 
 from being absent with leave or %vithout leave. 
 (10 romp/ Dec, 63.5.) 
 
 Officer on sick leave. — Section 1586, Re- 
 Adsed Statutes, prohibits the payment of medi- 
 cal expenses of an officer incurred while on 
 sick leave. (12 Comp. Dec, 28.) 
 
 Accounts for medical attendance by the 
 private physicians of officers or soldiers while on 
 leave of absence have never been allowed. 
 (5 Comp. Dec, 363.) 
 
 If an officer or soldier chooses to put himself 
 out of the reach of medical attendance which 
 the government has provided in hospitals, etc., 
 he can not place the Government under obliga- 
 tions to pay any expense he may incur for med- 
 ical attendance. (5 Comp. Dec, 363.) 
 
 See also, above, under "enlisted men." 
 
 Officer residing at distance from sta- 
 tion. — ^^^lere an officer of the Navy places him- 
 self away from his regular station for his o\\ti 
 convenience and comfort, so that the medical 
 department at the station is not available for 
 his treatment in case of illness, such officer can 
 not be reimbursed any expense incurred by 
 him for private medical attendance or for medi- 
 cal supplies. (17 Comp. Dec, 472.) 
 
 When an officer takes up his residence out- 
 side and so far away as to render it inconvenient 
 or impracticable for a naval medical officer to 
 attend him, the Government is under no obli- 
 gation to pay for the employment of a private 
 physician or for medicines. (5 Comp. Dec, 363.) 
 
 Naval medical officer available. — Where 
 the attendance of an Army surgeon could be 
 procured, the Government is not liable for the 
 expenses of a sick oflicer in a private hospital, 
 though he was carried there involuntarily and 
 though his accotmt was approved by the Sur- 
 geonGeneral. (Prestcm -j'.U.S., 37 Ct. Cls., 39.) 
 
 Section 1586 prohibits the allowance of a 
 physician's claim for attendance upon an officer 
 of the Navy for any time after the services of a 
 naval surgeon have been pro^'ided and tendered 
 to the officer. (3 Comp. Dec, 2.50.) 
 
 Special treatment. — Payment of expenses 
 incurred by an officer of the Navy for medical 
 attendance while in a duty status may be 
 authorized, notwithstanding the attendance of 
 
 a medical officer of the Navy could have been 
 had, if in the judgment of the NaAy Department 
 the available medical officers of the Navy were 
 not sufficiently skilled to properly treat the 
 disease with wliich the officer was afflicted. 
 (12 Comp. Dec, 28.) 
 
 In cases of claims for treatment of officers by 
 physicians outside the Medical Corps, it is not 
 understood that the law permits the allowance 
 of such expenses when incurred upon the mere 
 volition of the officer who seeks the treatment 
 and which was in his judgment necessary; but 
 such treatment by doctors outside the ^tedical 
 Corps in serious cases requiring special treat- 
 ment, and where medical officers are actually 
 available, should l)e under the orders and 
 direction and control of the medical establish- 
 ment of the department, and the claim for the 
 expenses ap])roved bv the Secretarv of the 
 Navy. (12 Comp. Dec, 28.) 
 
 Private sanitarium. — WTiere by proper 
 authority an officer of the Navy was removed 
 to a private sanitarium for treatment, there 
 being no naval hospital to which he could be sent 
 with safety, payment for medicines, care, main- 
 tenance, and medical attendance upon such 
 officer while in said sanitarium is authorized. 
 (9 Comp. Dec, 761.) 
 
 Dental treatment. — An officer of the Naw 
 may be reimbursed the expenses of dental 
 treatment when such treatment is of a surgical 
 nature required for repairing an injury to the 
 teeth resulting from an accident while in the 
 performance of duty, provided it is shown that 
 the services of a naval dental officer or of a 
 naval medical officer, properly qualified and 
 equipped, were not available. (21 Comp. 
 Dec. 624.) 
 
 Prior to the act of August 22, 1912 (37 Stat., 
 344), authorizing the establishment of a Dental 
 Corps in the Navj^, no proAision was made for 
 furnishing dental ser\ace to the personnel of 
 the Navy. Medical attendance, however, has 
 been furnished for years, not only through the 
 officers of the Medical Corps and the hospitals 
 provided and maintained for that purpose, but 
 the employment of private physicians and 
 hospitals in certain cases has been authorized 
 where the regular medical officers and naAal 
 hospitals were not available. (19 Comp. Dec, 
 5.50.) 
 
 Medical attendance -within the meaning of the 
 laws and regulations relating to the Navy has 
 not been construed to include dental treatment. 
 (19 Comp. Dec, 550.) 
 
 By act of August 22, 1912, the Government 
 has undertaken to furnish dental treatment to 
 the personnel of the naval service, but only in 
 the manner and to the extent therein provided. 
 Neither said act nor any other law makes pro- 
 vision for the employment of ci\dlian dentists; 
 and Congress has made no appropriation for 
 such purpose. Accordingly, held, that ciA^lian 
 dentists can not legally be employed where 
 naval dental officers are not available. (19 
 Comp. Dec, 550.) 
 
 See also above, under "Enlisted men." 
 For other cases, see notes to sections 1579, 
 Revised Statutes, under "Temporarily in hos- 
 pital"; and to section 1571, Re\ised Statutes, 
 under "Officers temporarily absent from their 
 ship." 
 
 904 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1587. 
 
 Sec. 1587. [Funeral expenses.] No funeral expense of a naval officer who 
 dies in the United States, nor expenses for travel to attend the funeral of an 
 officer who dies there, shall be allowed. But when an officer on duty dies in a 
 foreign country the expenses of his funeral, not exceeding his sea-pay for one 
 month, shall be defrayed by the Government, and paid by the paymaster 
 upon whose books the name of such officer was borne for pay. — (15 July, 1870, 
 c. 295, s. 17, V. 16, p. 334.) 
 
 of the recent explosion on the United 
 States steamship Missouri, to be expended 
 at the discretion of the Secretary of the 
 Navy'." 
 
 Section 1587, construed. — An officer of 
 the Navy is not entitled to mileage or reim- 
 bursement of traveling expenses for travel 
 performed in obedience to an order directing 
 him to attend the funeral of an officer who died 
 in the United States. (11 Comp. Dec, 181.) 
 
 By act of July 15, 1870 (now sec. 1587, R. S.), 
 the allowance of funeral expenses of a naval 
 officer who died in the United States is pro- 
 hibited; but such expenses are allowable where 
 the officer died in a foreign country, to an 
 amount not exceeding his sea pay for one 
 month. (13 0p. Atty. Gen., 341.) 
 
 The fact that the officer had started on a 
 foreign ser\ace, but died in a port of the United 
 States at which his vessel had touched, does 
 not relieve the case from the prohibition of the 
 statute. (13 Op. Atty. Gen., 341.) 
 
 The law makes the liability of the Govern- 
 ment for funeral expenses to depend on the 
 place where the officer dies and not upon the 
 nature of his service. (13 Op. Attv. Gen., 
 341.) 
 
 Section 1587 was clearly intended to prohibit 
 the payment of any and all expense of travel 
 to attend the funeral of a naval officer who dies 
 in this country. There is no exception or 
 reserA'ation in the statute: it can make no 
 difference in what capacity the officer attends 
 the funeral, whether in connection with a 
 battalion of cadets or as an indiAidual, the 
 prohibition is equally effective and the ex- 
 pense can not be allowed. (11 Comp. Dec, 
 181.) 
 
 An officer of the Navy who died while on 
 duty on the high seas must be regarded as hav- 
 ing died in a foreign country within the mean- 
 ing of section 1587, ReA-ised Statutes; and pay- 
 ment of his funeral expenses, not to exceeclone 
 month's sea pav, is authorized bv that section. 
 (6 Comp. Dec,' 620.) 
 
 Officers of the NaAy ordered for duty in con- 
 nection -with the funeral of a deceased officer 
 are not entitled to reimbursement of expenses 
 incurred bv them in hiring horses. (2 Comp. 
 Dec, 511.)" 
 
 The act of July 15, 1870 (16 Stat., 354), in- 
 corporated into section 1587, ReAdsed Statutes, 
 repealed article 1503 of the Navy Regulations 
 of 1870, wherein it had been attempted to pro- 
 Aide that the necessary funeral expenses of all 
 persons who should die in the serAice of the 
 Navy, whether in the United States or in 
 foreign countries, should, when sanctioned by 
 the Navy I)epartment, be borne by the Govern- 
 ment. "(3 Comp. Dec, 154.) 
 
 By annual appropriation acts for the naval 
 service, under "Bureau of ]\iedicine and 
 Sui'gery," appropriation is made for "care, 
 transportation, and burial of the dead, 
 including officers who die -nithin the 
 United States, and supernumerary patients 
 who die in naval hospitals." (See act 
 June 4, 1920, 41 Stat., 823.) 
 
 By act of June 4, 1920 (41 Stat. , 823), appropria- 
 tion was made "to enable the Secretary of 
 the Na\^^ in his discretion, to cause to be 
 transferred to their homes the remains of 
 officers and enlisted men of the Navy and 
 Marine Corps, of members of the Nurse 
 Corps, of civilian officers and crews of 
 naval auxiliaries, and of officers and en- 
 listed men of the Naval ]\Iilitia and Na- 
 tional Naval Volunteers and the Naval 
 Reserve Force when on active service 
 ■with the Navy, who die or are killed in 
 action ashore or afloat, and also to enable 
 the Secretary of the Navy, in his discretion, 
 to cause to be transported to their homes the 
 remains of civilian employees who die 
 outside of the continental limits of the 
 United States," with a proviso that said 
 appropriation "shall be available for pay- 
 ment for transportation of the remains of 
 officers and men who have died while on 
 dutv at anv time since April 21, 1898, and 
 shall be available until June 30, 1922." 
 
 By act of June 4, 1920 (41 Stat., 832), appropria- 
 tion was made, under "Contingent, ISIarine 
 Corps," for "'funeral expenses of officers 
 and enlisted men, and retired officers on 
 active duty during the war and retired en- 
 listed men of the Marine Corps, including 
 the transportation of bodies and their arms 
 and wearing apparel from the place of 
 demise to the homes of the deceased in the 
 United States." 
 
 By act of June 30, 1914 (38 Stat., 406), it was 
 provided, "That the Secretary of the Navy 
 be authorized, at his discretion, to issue 
 free of cost the national flag (United States 
 national ensign No. 7) used for draping the 
 coffin of any officer or enlisted man of the 
 NaAy or Marine Corps whose death occurs 
 while in the service of the United States 
 NaA^ or Marine Corps, upon request, to the 
 relatives of the deceased officer or enlisted 
 man or upon request, to a school, patriotic 
 order, or society to which the deceased 
 officer or man belonged." 
 
 By act of April 27, 1904 (33 Stat., 403), a special 
 appropriation was made "to pay for the 
 funeral expenses, including the disinter- 
 ment, proper care, preparation, and trans- 
 portation to their homes of the remains of 
 the officers and men who died as the result 
 
 905 
 
Sec. 1588. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 Officers of Marine Corps — Payment of the 
 cast of traiiHportinc: the remains of a deceased 
 officer of tlie Marino Corps from the Island of 
 Gnam. where he died, to Mobile, Ala., is not 
 authorized. (G Oonip. r>ec., 677.) 
 
 Section 15S7 has been construed as not ap- 
 plicable to ofiicers of the Marine Corps. Also, 
 the ai)propriations made for "funeral expenses 
 of marines" have been construed as referring 
 
 only to enlisted men. (6 Comp. Dec, 677. 
 But see appropriations quoted above, under 
 this section . ) 
 
 Enlisted man fui-loughed -without pay — 
 The Navy Department is not authorized to 
 defray the 1)urial expenses of an enlisted man 
 who died while furloughed, without pay, 
 under the act of August 29, 1916. (23 Comp. 
 Dec, 504; see note under sec. 1417, R. S.) 
 
 Sec. 1588. [Pay of retired officers.] The pay of all officers of the Navy 
 who have been retired after forty-five years' service after reacliing the age of 
 sixteen years, or who have been or may be retired after forty years' service, 
 upon their own application to the President, or on attaining tlie age of sixty- 
 two years, or on account of incapacity resulting from long and faithful service, 
 from wounds or injuries received in the line of duty, or from sickness or ex- 
 posure therein, shall, when not on active duty, be equal to seventy-five per 
 centum of the sea-pay provided by this chapter for the grade or rank which 
 they held, respectively, at the time of their retirement. The pay of all other 
 officers on the retired list shall, when not on active duty, be equal to one-half 
 the sea-pay provided by this chapter for the grade or rank held by them, 
 respectively, at the time of their retirement. — (15 July, 1870, c. 295, s. 5, v. 16, 
 p. 333. 3 Mar., 1873, c. 230, s. 1, v. 17, p. 555.) 
 
 s. 
 
 Amendment to this section was made by act 
 of May 30, 1908 (35 Stat., 501), providing 
 that "in computing the pay of retired 
 officers of the Navy, the 10 per cent addi- 
 tional pay allowed for sea duty or for 
 shore duty beyond the continental limits 
 of the United States shall not be inducted " ; 
 by act of May 13, 1908 (35 Stat., 128), pro- 
 ^'iding that any officer retired on his own 
 application, after 30 years' service, shall 
 receive " three-fomths of the highest pay 
 of his grade"; by act of August 29, 1916 
 (39 Stat., 579), fixing the age of retirement 
 at 64 years, excei)t in the cases of captains, 
 commanders, and lieutenant commanders 
 who become ineligible for promotion on 
 account of age (56, 50, or 45 years, respec- 
 tively), who shall be retired at said ages 
 "on a percentage of pay equal to two and 
 one-half per centum of their shore duty pay 
 for each year of service," their total 
 retired pay, however, not to exceed 75 per 
 cent of the shore-duty pay they were 
 entitled to receive while on the active list; 
 and by act of August 22, 1912 (37 Stat., 328), 
 providing that any officer to whom it ap- 
 plied should receive "three-fourths the sea 
 pay of the grade from which he is retired." 
 
 Retirement of officers with the rank and pay of 
 agrade higher than thatheld l)y them on the 
 active list at date of retirement is author- 
 ized by the following laws: Acts of March 
 3, 1899, section 11 (30 Stat., 1007), .Time 
 29, 1906 (34 Stat., 554), and March 3, 1909 
 (35 Stat., 753), on accoimt of civil war serv- 
 ice; act of March 4, 1911 (36 Stat., 1267), 
 on accouxit of failing physically for promo- 
 tion, due to disability incurred in line of 
 duty, which, imder acts of August 29, 1916 
 (39 Stat., 579), and July 1, 1918 (40 Stat., 
 118), shall not apply to officers of the rank 
 of lieutenant commander and above; sec- 
 tion 1481, Revised Statutes, relating to staff 
 
 reaching 
 which laws are no longer in 
 
 officers retired after specified length of serv- 
 ice; and by section 1473, Revised Stat- 
 utes, and laws noted under section 421, 
 ReAised Statutes, relating to chiefs of 
 biu"eaus. 
 
 See note to section 1444, Revised Statutes, 
 imder ' ' Historical note, " as to laws relating 
 to the retirement of officers ' ' after forty-five 
 years' 8er\-ice after reaching the age of 
 sixteen years, 
 effect. 
 
 The pay of officers on the retired list, ^Tay 13, 
 1908, was, under the act of that date (35 
 Stat., 128), fixing new rates of pay for 
 officers of the Navy, to be based on the pay 
 therein provided for officers of correspond- 
 ing rank and serWce on the active list. 
 
 The rank and pay of officers on the retired list 
 was to be the same that they are when 
 such officers shall be retired, according to 
 a clause in the act of August 5, 1882 (22 
 Stat., 286), which also prohibited promo- 
 tion or increase of pay on the retired list. 
 
 Theactof July 1, 1918(40Stat., 717), authorized 
 the promotion of any officer on the retired 
 list, employed on active duty in time of 
 war or national emergency, "to the grade 
 or rank, not above that of lieutenant com- 
 mander in the Na\^ or major in the Marine 
 Corps," which the total active service of 
 such officer, both prior and subsequent to 
 retirement, in the manner rendered by 
 him, would have enabled him to attain in 
 due com'se of promotion had such service 
 been rendered continuously on the active 
 list dming the "period of time last past," 
 and provided that officers so promoted to 
 such higher grade or rank "shall thereafter 
 receive the pay and allowances thereof." 
 
 TheactofJimelO, 1896 (29 Stat., 361), provided 
 that no payment shall be made from 
 ap]3ro])riations made by Congress to any 
 officer in the Navy on the retired list while 
 
 906 
 
The Navy. 
 
 Pt. £. REVISED STATUTES. 
 
 Sec. 1588. 
 
 such officer is employed by any person or 
 company furnishing naval supplies or war 
 material to the Government. 
 
 Pay based on "grade" at time of retire- 
 ment. — The "grade" of an officer in the Navy 
 is his official station, by which are regulated 
 his powers, duties, and pay. His pay may 1)8 
 further governed by his time of service within 
 a grade, either in fact rendered within the grade 
 or constructively performed therein through 
 the force of statutes. (Roget i;. U. S., 148 U.S., 
 167, 171.) 
 
 The office of professor of mathematics is a 
 grade. (Roget v. V. S., 148 U. S., 167, 171.) 
 
 The periods of five years' ser\ice mentioned 
 in Re\ised Statutes, section 1556, for increase 
 of pay, are "grades" within the meaning of 
 section 1588, fixing the pay of retired officers at 
 75 per cent of the sea pay of the grade or rank 
 held at the time of retirement. (Thornley v 
 U. S., 18 Ct. Cls., Ill; 113 U. S., 310.) 
 
 The word "grade" in section 1588 refers to 
 the di^isions of officers into five years' periods 
 of serAice. An officer retired in the thii-d period 
 of five years' ser\-ice is entitled to 75 per cent 
 of the sea pay of that grade, and not to 75 per 
 cent of the highest pay of a chief engineer who 
 has served o^'er 20 years. (Rutherford v. U. 
 S., 18 Ct. Cls., 339.) 
 
 In the Na\'y there are grades for duty, for 
 honor, and for pay, some by name and others by 
 description. A lieutenant has the gi-ade of his 
 class, and also a grade in his class upon which 
 his pay is fixed, depending upon length of 
 serA-ice. The word "grade" in section 1588 
 refers to the diAT-sion of officers into periods of 
 eer^ice. A lieutenant retired in the first five 
 years of service, because not recommended for 
 promotion, is entitled to one-half of his sea 
 pay at the time of retirement, and no more. 
 (McClure V. U. S., 18 Ct. Cls., 347.) 
 
 ' ' Grade " and ' ' rank " are used synonymously 
 in section 1588; the word "gi'ade" is used by 
 Congress as a general term, indicating any 
 marked distinction fixed by law among officers 
 which would be expressed in their commission, 
 title, or pay, not excluding chiefs of bureaus 
 having a certain rank. (31 Op. Atty. Gen., 
 505, holding that an officer retired while serving 
 as chief of bureau in the Navy Department, or 
 Judge Advocate General of the Navy, is entitled 
 to the rank attached by law to such office.) 
 
 For other cases, see notes to sections 421, 
 1362, 1457, and 1480, Revised Statutes, relating 
 to definition of the word "grade." 
 
 Pay based on higher grade than that 
 held on active list. — Under section 11 of the 
 Navy personnel act of March 3, 1899, an officer 
 retired on September 26, 1899, was entitled 
 to the advancement therein authorized on the 
 date of his retirement, and not on the date of 
 the department's notice to him of November 26, 
 1907. (26 Op. Atty. Gen., 599.) 
 
 Mates whose names are borne on the retired 
 list of officers of the Navy in accordance with 
 the act of August 1, 1894 (28 Stat., 212), are 
 officers of the Navy and are placed upon the 
 same footing as warrant officers under the act 
 of June 29, 1906 (34 Stat., 554), which entitles 
 such mates, otherwise eligible, to the rank and 
 retired pay of the next higher grade in the 
 
 service, viz, that of the lowest grade of warrant 
 officers. (26 Op. Atty. Gen., 433, 599.) 
 
 A captain in the Navy who had served 
 during the civil war, and was retired, pur- 
 suant to section 1444 of the Revised Statutes, 
 with the rank and three-quarters of the sea pay 
 of the next higher grade in accordance with 
 section 11 of the Navy personnel act of March 
 3, 1899, was entitled only to the pay of rear 
 admiral of the lower nine. Under section 11 
 he passes on retirement into and not over the 
 next pay grade, wliich is that of the nine lower 
 numbers, the rank of rear admiral being divided 
 into two pay grades. (Gibson v. U. S., 194 U. 
 S., 182.) 
 
 The Navy personnel act of March 3, 1899, 
 section 13, makes no distinction in the rank 
 of rear admirals, but does in theu- pay; and the 
 provision of section 11 of that act, which author- 
 izes the retirement of certain officers with the 
 rank and retired pay "of the next higher 
 grade, " must be interpreted with reference to 
 that distinction. Accorchngly, held, that a 
 captain on the active list, retired under section 
 11 with the retii'ed pay of the next higher grade, 
 was entitled only to the retu-ed pay of rear 
 admiral of the lower half. Pay and not rank 
 is the paramount purpose of the law, and the 
 grades of pay must therefore be regarded as of 
 paramouJit importance. (Lowe v. U. S., 38 
 Ct. Cls., 170.)_ 
 
 A mate retired as a master (now lieutenant, 
 junior gi'ade) in 1871 should be credited under 
 the naval appropriation act of March 3, 1883 
 (22 Stat., 493), v\ith his actual service as mate, 
 as of the time when he was retired; held, there- 
 fore, that he is entitled to the pay of a master 
 retii'ed in the second five years of service. 
 (Bradbury t'. U. S., 20 Ct. Cls., 187.) 
 
 An officer who qualified and was nominated 
 by the President for promotion to the grade of 
 rear admiral to fill a vacancy occurring Feb- 
 ruary 18, 1886, but who was retired on account 
 of age prior to his confirmation by the Senate, 
 may, if subsequently confirmed, be commis- 
 sioned as a rear admiral with rank from date 
 of v^acancy and with the retired pay of that 
 grade. (18 Op. Atty. Gen., 393.) 
 
 The act oi March 4, 1911 (36 Stat., 1267), 
 which provides that if an officer of the Navy 
 should fail in his physical examination for pro- 
 motion, and be found incapacitated for service 
 by reason of physical disability contracted 
 in the line of duty, he shall be retired with the 
 rank to which his seniority entitled him to be 
 promoted, does not authorize retirement with 
 a higher rank than that the officer would have 
 had if he had successfully passed his examina- 
 tion; and the rank with which the officer is to 
 be retired is not determined by the date of the 
 action of the retiring board. (Tappan v. U. 
 S., 54 Ct. Cls._, 76.) 
 
 A captain in the Navy became due for pro- 
 motion by seniority to rear admiral; he failed 
 in his physical examination, because of disa- 
 bility incurred in the line of duty; subsequent- 
 ly he was retired in consequence of the action 
 of a retiring board. Had he qualified for pro- 
 motion he would have been commissioned as a 
 rear admiral on the active list, and would have 
 been in the lower half or second nine of the 
 
 54641°— 22- 
 
 -58 
 
 907 
 
Sec. 1588. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 gra<lo of roar admiral. ITowover, before his 
 retiroinont his seniority would have placed 
 him in the upper half, or first nine, of the grade 
 of rear admiral had he qualified and been com- 
 missioned, lie was retired with the rank of 
 rear admiral, pursuant to the act of March 4, 
 1911 {M Stat., 12G7), and received the retired 
 pay of a rear admiral of the second nine. Held, 
 that he was correctly paid as a rear admiral of 
 the second nine; that his rank and position on 
 the retired list are not determined by the date 
 of the action of the retiring board; and the fact 
 that after he became due for promotion, and 
 prior to his retirement, his name was borne on 
 the Navy Register as a rear admiral on the 
 active list, "subject to examination and con- 
 firmation," did not make him such, but indi- 
 cated simply that he was eligible to become a 
 rear admiral. (Tappan v. U. S., 54 Ct. (Is., 76.) 
 
 Effect of increasing pay of active list. — 
 Section 1588 is somewhat ambiguous; it does 
 not say that each officer shall receive a per- 
 centage of the pay which he was actually re- 
 ceix'ing or entitled to receive at the time of hia 
 retirement, but that he shall receive a percent- 
 age of the pay of the "grade or rank" which 
 he then held. The act of March 3, 1882 (22 
 Stat., 286), providing that there shall be no 
 increase of pay in the retired list of the Navy, 
 etc., was intended to render the pay of retired 
 officers fixed and certain, except as might 
 otherAA-ise be specifically provided by Congress. 
 The mere increase in the pay of a grade or rank 
 after the retirement of an officer does not in- 
 crease his pay on the retired list. (Fulman v. 
 V. S., 32 Ct. Cls., 112. For other cases, see 
 note to sec. 1457, R. S., untier "General legisla- 
 tion not applicable to retired officers.") 
 
 The act of August 29,_ 1916 (39 Stat., 581), 
 which had the effect of increasing the pay of 
 chaplains above the rank of lieutenant com- 
 mander (see note to sec. 1556, R. S.), resulted 
 in increasing from the date of said act the pay 
 of a chaplain who was retired in 1910, notwith- 
 standing that said act of August 29, 1916, did not 
 in terms refer to pay of officers on the retired 
 list. (26Comp. Dec.,270.) 
 
 The accepted principle is that changes in the 
 permanent rates of pay for the active list in the 
 Army and Navy, in the absence of any express 
 provision to the contrary, are applicable to the 
 retired list. (27 Comp. Dec, 233, 234.) 
 
 liongevity pay of retired oflScers. — 
 Under sections 1262 and 1263, Revised Statutes, 
 which proWde that commissioned officers of 
 the Army below the rank of brigadier general 
 shall be allowed 10 per cent of their current 
 yearly pay for each term of five years' service, 
 the total amount of such increase not to exceed 
 40 per cent of their current yearly pay, held, 
 that an officer of the Army retired from active 
 service is still in the military service of the 
 United States, and, in addition to the percent- 
 age of the pay of the rank on which he was 
 retired, is entitled to the 10 per cent allowed 
 by law for each term of five years' service, 
 counting years passed in the service after retire- 
 ment as well as before. (U. S. v. Tyler, 105 
 U.S., 244.) 
 
 Officers on the retired list of the Navy are not 
 entitled to longevity pay for time spent in the 
 service after retirement. (Thornley v. U. S., 
 
 113 U. S., 310; affirmed, Brown v. U. S., 113 
 U.S., 568.) 
 
 The case of United States v. Tyler (105 U. S., 
 244), which held that officers of the Army on 
 the retired list were entitled to longeATty pay, 
 does not support the contention that oflicers of 
 the Navy, whose pay is fixed by different 
 statutes, are entitled to similar increase. By 
 no act since the foundation of the Government 
 has Congi'ess ever given longevity pay to officers 
 of the Navy, except those on the active list; 
 and the statute book is now bare of any enact- 
 ment which awards to any officer of the Navy 
 not on the active list any increase of pay for 
 length of service. The court is not called on 
 to explain why Congress should apply one rule 
 to the officers of the Army and another to the 
 officers of the Navy. It is sufficient to say that 
 it has clearly done so. If the law is unequal 
 and unjust, the remedy is with Congress and 
 not ^vith the courts. (Thornley v. U. S., 113 
 U. S., 310; Brownie. U. S., 113 U. S., 568.) 
 
 Held, that section 13 of the Navy personnel 
 act of ]\Iarch 3, 1899 (30 Stat., 1004), providing 
 Army pay for all commissioned officers of the 
 ■ line of the Navy and of the Medical and Pay 
 Corps, virtuallv superseded the act of August 5, 
 1882 (22 Stat.,''286), providing that there shall 
 be no increase of pay on the retired list of the 
 Navy, so far as relates to officers retired on Army 
 pay, and that such officers retired on Army pay 
 are entitled to longe^dty pay as retired officers 
 in the same manner as retired officers of the 
 Army. (5 Comp. Dec, 809, 811.) 
 
 B}^ act of March 2, 1903 (32 Stat., 932), 
 relating to the Army, it was provided that 
 "hereafter, except in cases of officers retired on 
 account of wounds received in battle, no officer 
 now on the retired list shall be allowed or paid 
 any further increase of longevity pay, and offi- 
 cers hereafter retired, except as herein ])ro- 
 vided, shall not be allowed or paid any further 
 increase of longevity pay above that which 
 had accrued at date of their retirement. " 
 
 Officers of the Navy whose pay is assimilated 
 to that of officers of corresponding rank in the 
 Army by the Navy personnel act of March 3, 
 1899, are not entitled to increased retired pay 
 for length of service after retirement. The pay 
 of officers of the Navy on the retired list, 
 whether retired before or after the act of 
 March 3, 1899, is governed by the retirement 
 laws of the Navy and not by those of the Army. 
 (15 Comp. Dec, 767, citing Hannum v. U. S., 
 43 Ct. Cls., 323, and overuling 5 Comp. Dec, 
 809, above noted.) 
 
 The plain meaning of section 1588, Revised 
 Statutes, is that the pay of each retired officer 
 shall be three-fourths of the sea pay to which 
 he was entitled when he was retired; to give 
 that section a meaning which would entitle the 
 officers to increased pay for every period of five 
 years after retirement would be legislation and 
 .not interpretation. (Thornley v. U. S., 113 
 U. S., 310.) 
 
 An officer retired from active service, there- 
 after employed on active duty, and then de- 
 tached from such dutv, can not be held to ha\'e 
 been retired a seconct time on the date that he 
 was relieved from active duty. The retire- 
 ment of an officer is a proceeding that can only 
 take place in a prescribed manner, and it is not 
 
 908 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1588. 
 
 pretended that such proceeding occurred with 
 reference to this officer more than once. (Roget 
 V. U. S., 148 U. S., 167, 172.) 
 
 The pay of a retired officer of the Naw is 
 fixed by statute at a certain percentage of the 
 active-ser^ice pay of the grade hekl by him at 
 the time of his retirement; and there is noth- 
 ing in the act of March 3, 1883 (22 Stat., 472), 
 to modify this rule. (Roget v. U. S., 148 U. S., 
 167.) 
 
 An officer of the Na^"^^ who was retired in the 
 first five years of spr\-ice from a rank ha\'ing 
 longe\'ity pay, but who was continued on active 
 duty until he had passed into his second five 
 years of ser\-ice, is not entitled, under the act 
 of March 3, 1883, to a greater rate of pay after 
 active ser^dce ceased than 75 per cent of the pay 
 of the grade or rank which he held at the time 
 of retirement. (Roget v. U. S., 148 U. S., 167.) 
 
 The act of July 1, 1918 (40 Stat., 717, quoted 
 above under this section), authorizing the pro- 
 motion of retired naval officers who serve on 
 active duty during time of war or national 
 emergency, pro\'ides that officers so promoted 
 to higher grades "shall thereafter receive the 
 pay and allowances thereof. " This does not 
 mean that upon relief from actiA'e duty their 
 actiA'e-duty pay is to continue; but means that 
 the increased rate of pay that is acquired by 
 reason of the promotion on the active list is to 
 be the rate upon which is to be computed their 
 retired pav as well as their active dutv pay. 
 (26 Comp.'Dec, 306.) 
 
 Under the act of July 1, 1918 (40 Stat., 717), 
 where a retired chief warrant officer of the Na\'y^ 
 is advanced in "pay grade " by reason of active 
 serA-ice performed both prior and subsequent to 
 retirement, the increased rate of pay acquired 
 by such promotion is the rate upon which is to 
 be computed his retired pay. (26 Comp. 
 Dec, 306.) 
 
 Retired warrant officers of the Naw called 
 to active duty under the act of July' 1, 1918 
 (40 Stat., 717), are entitled to count their active 
 service since retirement in determining their 
 right to promotion in the various pay grades of 
 warrant officers as pro\T.ded by section 1556, 
 Re\'ised Statutes, the pay grade to which thus 
 promoted becoming the basis upon which their 
 retired pay subsequent to release from active 
 duty is to be computed. (26 Comp. Dec, 409.) 
 
 Retired officers called to actlA^e duty under 
 the act of July 1, 1918 (40 Stat., 717), and tem- 
 porarily advanced in grade or rank, are not 
 entitled to count their active ser\-ice since 
 retirement in computing their pay under such 
 temporary appointments. (26 Comp. Dec, 409; 
 25 Comp. Dec, 601; but see Bailey v. U. S., 53 
 Ct. Cls., 639, file 26254-2376:3; see also Jonas 
 ■y. U. S., 53Ct. Cls., 254). But such officers who 
 are permanently advanced in grade or rank un- 
 der other pro\T-sions in the same act are entitled 
 to count their active service since retirement 
 for longe\'ity increase of paA^ (25 Comp. 
 Dec, 601.) 
 
 Cause of retirement can not be altered. — 
 Where an officer of the NaAy was retired under 
 section 1454, Revised Statutes, for incapacity 
 not originating in the line of duty, and upon a 
 full re\'iew of the facts the Secretary of the 
 Na%y found that the causes of incapacity were 
 incident to the service, and the officer was 
 
 accordingly transferred by the President, by 
 and with the advice and consent of the Senate, 
 to the 50 per cent retired pay list, in accord- 
 ance with section 1595, Re\'ised Statutes, and 
 later, by a private act of Congress, was trans- 
 ferred to the 75 per cent pay list of retired 
 officers under section 1588, he can not there- 
 after be placed on the retired list with the 
 retired pay of one grade above that actually 
 held by him at the time of his retirement, 
 pursuant to the act of June 29, 1906 (34 Stat., 
 554), which authorized such advancement to 
 certain officers of the Na\'y retired on account 
 of disability incident to the serAice. The 
 action taken in this case did not change the 
 fact that the officer was retired for incapacity 
 not originating in the line of duty, howeA'er, 
 erroneous such action may have been. (27 Op. 
 Atty. Gen., 221; for other cases, see note to 
 sec. 14.54, R. S.) 
 
 An officer was retired under section 3 of an 
 act approved Februaiy 21, 1861, authorizing 
 the retirement of officers of the Navy "proved 
 to be permanently incapable from physical or 
 mental infirmity for further serA-ice at sea," etc 
 The board in its report expressed its opinion 
 that his disability "did not occur in the line 
 of his duty." Under the act cited it was im- 
 material whether his disability originated in 
 line of duty or not. Accordingly, the board's 
 opinion as to the cause of the disability was 
 mere surplusage. Subsequently to his retire- 
 ment, new proAisions were made by an act 
 approved August 3, 1861, sections 21, 22, and 
 23, for the retirement of officers, which, among 
 other things, diAided the causes for retirement 
 into disability incurred in the line of duty and 
 disability proceeding from other causes. This 
 act did not affect officers already on the retired 
 list. Thereafter, by act of March 3, 1873, em- 
 bodied in section 1588, ReAised Statutes, two 
 rates of retired pay were established. Upon 
 application of the officer, the Secretary of the 
 INaAy convened a board in 1876 which made a 
 further examination of the cause of his disabil- 
 ity, and reported that it originated in the line 
 of duty ; and the Secretary of the Naw approved 
 this report and directed that the officer be re- 
 garded as haAing been retired for incapacity 
 occasioned while in the line of duty. Held, 
 that the Secretarj' of the Navy was not author- 
 ized by law to submit the case of this officer to 
 a medical board for reexamination as to the 
 origin of the disability for which he was re- 
 tired, and that the Secretary"' s action, based on 
 the report of such board, was without legal 
 effect as regards the cause for retirement in the 
 case of said officer or his right of pay; held, 
 further that said officer was entitled only to 
 one-half sea pay under the latter clause of 
 section 1588, applicable to "all other officers 
 on the retired list." (17 Op. Atty. Gen., 178.) 
 
 The act of July 1, 1918 (40 Stat., 717, quoted 
 above), authorizing the promotion of retired 
 officers on active duty in certain cases, and 
 entitling such retired officers when relieved of 
 active duty to the retired pay of the rank or 
 grade to which permanently promoted during 
 such active ser\-ice, does not change the status 
 of an officer who was retired on furlough pay 
 for disability not incident to the serAice, nor 
 entitle such'officer to a different percentage of 
 
 909 
 
Sec. 1588. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 pay than that to which he was entitled under 
 the law governing his retirement. (27 Comp. 
 Dec, 7S.) 
 
 I'^cir other cases, see note to section 14-54, 
 Revised Statutes, and see note below, under 
 "Othcer transferred from half-pay list to three- 
 qtiarters pay list." 
 
 Officers retired on fvu'lough pay. — See 
 section 1")03, Revised Statutes. 
 
 Section 15SS, Revised Statutes, does not ap- 
 ply to oflicers retired on furlousjli pay; their pay 
 18 governed by section 1593, Re\ised Statutes. 
 (Brown v. U. S., 113 U. S., 568.) 
 
 The act of July 15, 1S70 (16 Stat., 321), did 
 not alwlish the furl()u,e;h pay list; and an order 
 after the passage of that act retiring a naAal 
 officer on furlough pay was made in pursuance 
 of law. The statutes distinguish between 
 officers on the retired list and officers on the 
 retired list on furlough pay, and this distinction 
 is preserved by the flevised Statutes. Thus 
 sectitMis 1588 and 1502 prescribe rates of pay 
 for retired officers, and section 1593 a different 
 rate for officers on the retired list on fxirlough 
 
 Eay; and section 1594 authorizes the President, 
 y and with the achice and consent of the 
 Senate, to transfer any officer of the "[^axy on 
 the retired list from the furlough to the retired 
 pay list. (Brown v. V. S., 113 U. S., 568.) 
 
 For other cases, see note to section 1593, 
 Revised Statutes; and see note below, under 
 "Pay reduced by Congress. " 
 
 Officer transferred from furlough to re- 
 tired pay list. — See note to section 1594, Re- 
 \'i8ed Statutes. 
 
 Where a naval officer is transferred, under 
 section 1594, ReAdsed Statutes, from the fur- 
 lough list to the retired pay list, the cause for 
 his retirement determines the rate of pay to 
 which he is entitled under section 1588. An 
 officer retired on furlough pay, from causes not 
 incident to the service, can not, by the action 
 of the President, ])e transferred to the 75 per 
 cent retired pay list pro\dded for by the last- 
 mentioned section, but becomes entitled to 
 only one-half pay, as pro\'ided by section 1588, 
 for officers retired for causes other than those 
 entitling them to 75 per cent of sea pay. (16 
 Op. Atty. Gen., 22.) 
 
 A naval officer being retired on furlough pay, 
 under Re\ised Statutes section 1454, for in- 
 capacity not the result of any incident of the 
 service, and being subsequently transferred by 
 the President, with the ad\'ice and consent of 
 the Senate, from the furlough to the retired pay 
 list under Revised Statutes section 1594, is 
 entitled thereafter, under the second clause of 
 section 1588, when not on active duty, to one- 
 half the sea pay pro\-ided for the grade or rank 
 held by him at the time of his retirement. 
 (Potts v.U. S., 125 U. S., 173.) 
 
 Officer transferred from half-pay list to 
 three-quarters pay list. — .\. special act 
 (June 10, 1902, 32 Stat., 1444) which authorized 
 the Secretary of the Navy to transfer an officer 
 on the retired list "from the half-pay list to the 
 75 per cent list under section 1588, Revised 
 Statutes," did not operate to change his status 
 from that of an officer retired for incapacity not 
 incident to the ser\dce to that of an officer 
 retired for incapacity incident to the service. 
 Accordingly, held, that a lieutenant in the 
 
 Navy retired for incapacity which did not 
 originate in the line of his duty, on furlough 
 pay, and later transferred from the furloup;h 
 pay list to the one-half retired pay list, and 
 afterward transferred by special act of Congress 
 from the half-pay list to the three-fourths pay 
 list, and thereafter nominated by the President 
 and confirmed by the Senate for advancement 
 to the rank of lieutenant commander on the 
 retired list, under the act of June 29, 1906 (34 
 Stat., 554), authorizing such advancement in 
 the cases of certain officers who had been 
 retired "on account of wounds or disability 
 incident to the service," was not entitled to 
 the retired pay of a lieutenant commander for 
 the reason that his advancement to that rank 
 was not authorized by the act of June 29, 1906. 
 (Morse v. U. S., 46 Ct. Cls., 361, affirmed, 229 
 U. S., 208, following Potts v. U. S., 125 U. S., 
 173, and Burchard v. U. S., 125 U. S., 176.) 
 
 For other cases, see note to section 1454. Re- 
 ^'ised Statutes. 
 
 Retired pay reduced by Congress. — 
 A colonel in the Regular Army, holding at the 
 same time the rank of brigadier general of Vol- 
 unteers, was retired by the President from 
 active service with the rank and retired pay of 
 major general, pursuant to an act of Congress 
 of 1866 which authorized the retirement of 
 officers in certain cases with a higher rank than 
 that held by them on the active list at the 
 time of retirement. Later Congress provided 
 by an act approved March 3, 1875, that a class 
 of retired officers, which included this officer, 
 who were wounded in action, should be "con- 
 sidered as retired upon the actual rank held 
 by them, whether in the regular or volunteer 
 service, at the time when such wound was 
 received, and shall be borne on the retired list 
 and receive pay hereafter accordingly." 
 Pursuant to this act the President fixed the 
 rank of this officer as that of brigadier general 
 from March 3, 1875, the date of the act last cited. 
 In behalf of the officer it was contended that he 
 held the office of major general on the retired 
 list of the Army by appointment of the Presi- 
 dent, and that Congress had no power to remove 
 him from that office and appoint him to the 
 office of brigadier general on the retired list. 
 Held, that an officer of any grade on the active 
 list, appointed thereto in the manner required 
 by the Constitution, may be retired with a 
 different rank from that which belongs to his 
 office, when Congress so provides; that this is 
 not the appointment of such officer to a new 
 and different office, but is the transferring of 
 him to the retired list and the changing of his 
 rank while he holds the same office; and that, 
 in connection with this change of rank, liis pay 
 may be changed; that in this case, the retire- 
 ment of the officer with the rank of major gen- 
 eral while he held the office of colonel in the 
 Army did not confer on him the office of major 
 general; that he remained in the office of 
 colonel and accjuired a higher rank and higher 
 pay as a retired officer; that such rank, not 
 being an office. Congress could change his rank 
 and with it his pay, as it did by the act of 1875; 
 that Congress had the same right to change this 
 officer's rank and pay by reducing them that 
 it has to change the rank and pay of another 
 officer by increasing them, the standard in both 
 
 910 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1588. 
 
 cases being the actual rank held by the officer 
 at the time he was wounded ; that the offices of 
 both were left untouched; and that the pay of 
 retired officers is a matter entirely within the 
 control of Congress and so is thei r rank . ( Wood 
 1'. U. S., 107 U. S., 414; 15 Ct. Cls., 151.) 
 
 A pro\'i8ion in the Revised Statutes reducing 
 the pay of a retired naval officer is not affected 
 by the general provision of the Revised Stat- 
 utes, section 5597, that the repeal of previous 
 statutes by the revision shall not affect acts 
 done or rights accrued under them, nor change 
 the term or tenure of any office. (Magaw v. 
 U. S., 16 Ct. Cls., 3.) 
 
 Sections 1588, 1590, and 1593, Revised 
 Statutes, which contain provisions both of a 
 general and special character prescribing the 
 compensation of retired naval officers and 
 embrace within their scope all such officers, 
 whether of the line or staff, superseded all pro- 
 visions in force at the adoption of the Revised 
 Statutes by which that compensation was pre- 
 viously regulated, and those sections thereafter 
 furnished the only law upon the subject. 
 Accordingly, held, that an officer retired in 1871 
 on furlough pay was entitled after the enact- 
 ment of tlie Revised Statutes to only one-half 
 of leave of absence pay as fixed by section 1593, 
 Revised Statutes, although prior to the enact- 
 ment of the Revised Statutes he had been 
 entitled to one-half of the highest pay of his 
 grade, under section 5 of the act of July 15, 1870 ; 
 and said officer having thereafter been trans- 
 ferred to the retired pay list in accordance with 
 section 1594, Revised Statutes, was entitled to 
 one-half sea pay as provided by section 1588, 
 Revised Statutes. (15 Op. Atty. Gen., 316.) 
 
 In the absence of constitutional restriction, 
 the future compensation of a public officer may 
 be reduced at pleasure by the legislature during 
 his incumbency, without violating any legal 
 right vesting in him by virtue of his appoint- 
 ment. (15 Op. Atty. Gen., 316.) 
 
 Retired pay is salary. — See note to section 
 1457, Revised Statutes, under "Status of 
 retired officers, part of the Navy;" and "Re- 
 tired pay not 'pension.' " 
 
 A retired naval officer is still an officer of the 
 Navy, and his retired pay is the equivalent of 
 salary. When serving on a board as to which 
 a statute prescribes, for members who are "not 
 salaried officers," a salarv', and for members who 
 are "salaried officers," their "actual necessarv^ 
 expenses," he is entitled to the latter and not 
 to the former. (Franklin v. U. S., 29 Ct. Cls., 6.) 
 
 Retired pay of mates. — See note to sec- 
 tion 1408, Revised Statutes; and see note above 
 under "Pay based on higher grade than that 
 held on active list." 
 
 A mate in the Navy on August 1, 1894 (28 
 Stat., 212), which pre.scribed special rates of 
 pay for such mates while on sea duty, shore 
 duly, or leave or waiting orders, and who was 
 retired on his own application, after 30 years' 
 service, under the act of March 3, 1899 (30 
 Stat., 1008), providing for the retirement of 
 enlisted men and petty officers with 75 per 
 cent of the "pay and allowances" of the rank 
 or rating upon which retired, was entitled to 
 such percentage of the sea pay which he was 
 receiving at the time of his retirement. Section 
 1588, Revised Statutes, entitling officers to 75 
 
 per cent of sea pay on retirement, was not re- 
 pealed by the saidact of 1899, which was silent 
 as to the'kind of pay which a petty officer shall 
 receive on retirement. (Creighton v. U. S., 
 37 Ct. Cls., 327.) 
 
 Retirement under a special act of Con- 
 gress. — An act of February 16, 1897, provided 
 for the reappointment of John N. Quackenbush, 
 late a commander in the United States Navy, to 
 the grade and rank of commander as of the date 
 of August 1, 1883, and that the said Quacken- 
 bush be placed on the retired list of the Navy 
 as of the date of June 1, 1895: ''Provided, That 
 he shall receive no pay or emoluments except 
 from the date of such reappointment." Held, 
 first, that the only apparent office of the proviso 
 was to forbid the allowance of pay or emolu- 
 ments from August 1, 1883, by limiting such 
 allowance to the date of reappointment, which 
 in that view must be regarded as the date of 
 appointment under the act; second, that it was 
 remedial in its character, and should be con- 
 strued as ratifying prior payments which the 
 Government in its counterclaim was seeking 
 to recover back. If it had not been for the 
 proviso, the effect of the appointment would 
 have been, in addition to fixing his status, as to 
 grade and rank, as of August 1, 1883, to entitle 
 him to pay from that date, but not to pay prior 
 thereto. The date of reappointment was the 
 date when it was actually made, and to substi- 
 tute the date to which the appointment related 
 for the actual date would defeat the obvious 
 object of the proviso, which was to narrow the 
 effect of giving the reappointment a retroactive 
 operation. It was allowed that effect as to grade 
 and rank, but not as to current pay or emolu- 
 ments. (Quackenbush v. U. S., 177 U. S., 20.) 
 
 For other cases, see note to section 1457, 
 Revised Statutes, under '•\\Tien retirement or 
 advancement on retired list takes effect." 
 
 OflS.cer wholly retired from the service. — 
 See note to section 1454, Revised Statutes. 
 
 There is a manifest difference in the two 
 kinds of retirement, namely, retiring from 
 active service, and retiring wholly from the 
 service. In the latter case such reward or 
 compensation as Congress thought proper to 
 bestow, namely, one year's pay and allowances, 
 in addition to what was previously allowed, is 
 given at once, and the connection is ended; 
 in the former case the compensation is con- 
 tinued at a reduced rate and the connection ie 
 continued, with a retirement from active serv^- 
 ice only. (U. S. v. Tyler, 105 U. S., 244.) 
 
 OflB.cer retired because not recom- 
 mended for promotion.^See act of March 4, 
 1911 (36 Stat., 1267), and amendatory statutes, 
 quoted above, under this section. 
 
 An officer retired in the first five years of 
 service, because not recommended for pro- 
 motion, is entitled to one-half of his sea pay at 
 the time of retirement, and no more. (McClure 
 V. U. S., 18 Ct. Cls., 347.) 
 
 Irregularities in retirement. — The ad- 
 ministrator of a retired naval officer can not, 
 in order to recover from the United States an 
 increase in the compensation of his intestate, 
 take advantage of an alleged defect in the pro- 
 ceedings by which he was retired and which he 
 acquiesced in without objection duting hia 
 lifetime. (Brovra i-. U. S., 113 U. S., 568.J 
 
 911 
 
Sec. 1591. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 All officer whrse name is placed on the retired 
 list (if the Armv by the Secretary of War, in 
 apparent compliance with proAdsions of law, is 
 an cllicer de facto if not de jure, and money paid 
 to liim as salary can not be recovered back by 
 the United States. (15adeau v. U. S., 130 U. S., 
 439.') 
 
 Wlien retired pay commences. — See note 
 to section 1157, Revised Statutes, under, "when 
 retirement or advancement on the retired list 
 takes effect." 
 
 The retirement of a naval officer for disability 
 tinder section 1453, Revised Statutes, becomes 
 
 effective only upon the approval of the finding 
 of the retiring ooard by the President. Ac- 
 cordingly, the retirement of such officer with 
 the higher rank on the retired list to which his 
 seniority entitled him to be promoted on the 
 active list, as authorized by act of March 4, 
 191 1 (36 Stat., i2G7), can not be made effective 
 prior to the President's ai)proval of his retire- 
 ment, and his retired pay of the higher rank 
 will date from such approval, notwithstanding 
 that an earlier date of rank is stated in his com- 
 mission. (27 Comp. Dec, 512.) 
 
 Sec. 1589. [Retired rear admirals. Obsolete.] 
 
 This section provided as follows: 
 "Sec. 1589. Rear-admirals on the retired list 
 of the NaAy, who were retired as captains 
 when the highest grade in the Navy was cap- 
 tain, at the age of sixty-two years, or after 
 forty-five years' serA-ice, and who, after their 
 retirement, were promoted to the grade of rear- 
 admiral, and performed the duties of that grade 
 
 in time of war, shall be considered as haxing 
 . been retired as rear-admirals. " — (5 June, 
 1872, c. 307, s. 1, V. 17, p. 226. 3 Mar., 1873, c. 
 230, s. 1, V. 17, p. 555.) 
 
 It is rendered obsolete by the fact that 
 there are now no officers in the Navy to whom 
 it could apply. 
 
 Sec. 1590. [Third assistant engineers. Obsolete.] 
 
 This section provided as follows: 
 
 "Sec. 1590. Officers who haA'e been retired 
 as tliird assistant engineers shall continue to 
 receive pav at the rate of four hundred dollars 
 a year."— (3 Mar., 1859, c. 76, s. 2, v. 11, p. 
 407. 3 Aug., 1861, c. 42, s. 22, v. 12, p. 290. 
 16 July, 1862, c. 183, s. 20, v. 12, p. 587. 21 
 April, 1864, c. 63, s. 7, v. 13, p. 54. 15 July, 
 1870, c. 295, 8. 5, v. 16, p. 333.) 
 
 The grade of third assistant engineer 
 was abolished on the active list, by act of July 
 15, 1870, section 6 (16 Stat., 333), which act 
 and section further proA-ided that "retired 
 third assistant engineers shall continue to re- 
 
 ceive the same rate of pay they YiBxe receiA'ed 
 up to the time of the passage of this act. " 
 However, on the date of the ReAdsed Statutes, 
 there were no third assistant engineers on the 
 retired list, so that section 1590 never had 
 any force or effect. The last of the third as- 
 sistant engineers were Theron Skeel, who was 
 retired as such June 22, 1869, and resigned 
 November 12, 1870; and Nicholas H. Lamdin, 
 who was retired as third assistant enginneer, 
 June 22, 1869, was restored to the active list, 
 as second assistant engineer, July 17, 1872, and 
 was commissioned as passed assistant engineer 
 June 3, 1879. 
 
 Sec. 1591. [Pay not increased by promotion.] No officer heretofore or here- 
 after promoted upon the retired list, shall, in consequence of such promotion, 
 be entitled to any increase of pay. — (2 Mar., 1867, c. 174, s. 9, v. 14, p. 517. 
 15 July, 1870, c. 295, s. 5, v. 16, p. 333.) 
 
 By act of August 5, 1882 (22 Stat., 286), it was 
 provided that "hereafter there shall be no 
 
 f)romotion or increase of pay in the retired 
 ist of the Na\y, but the rank and pay of 
 officers on the retired list shall be the same 
 that they are when such officers shall be 
 retired." 
 
 By act of July 1, 1918 (40 Stat., 717), the pro- 
 motion was authorized of retired officers 
 employed on active duty in time of war, 
 sucn promotion being permanent under 
 certain conditions, and in other cases 
 continuing only until the officer's relief 
 from active duty; in either case the law 
 in terms entitled such officers to the pay 
 of the grade to which promoted. As to 
 retired enlisted men promoted while on 
 active duty, see notes to sections 1569 and 
 1592. Re\ised Statutes. 
 
 See sections 1459-1465, 1481, and 1588, Re\'ised 
 Statutes, and notes thereto, as to promotion 
 of retired officers. 
 Sec. 1591 not modified bylaws relating 
 
 to active list. — The act of June 22, 1874 (18 
 
 Stat., 191), quoted under section 1561, Revised 
 Statutes, which provided that any officer pro- 
 moted in course to fill a vacancy "shall be en- 
 titled to the pay of the grade to which promoted 
 from the date he takes rank therein," etc., 
 was manifestly designed to fix the commence- 
 ment of the increased pay of promoted officers 
 in active ser\ice only, and it in no way 
 affected section 1591, ReAised Statutes, which 
 thereafter, as before, remained in force. (17 
 Op. Atty. Gen., 495.) 
 
 AppUcable to all promotions on retired 
 list. — Section 1591, Re\ised Statutes, is applica- 
 ble alike to officers promoted under section 
 1461, ReAdsed Statutes, and to those promoted 
 under section 1460, as amended. (17 Op. 
 Atty. Gen., 495.) 
 
 The act of August 5, 1882 (22 Stat., 286), 
 above quoted, prevents either rank or pay of 
 officers on the retired list from being increased 
 in any way after such officers shall have been 
 placed thereon. (18 Op. Atty. Gen., 96.) 
 
 0£&cers promoted on retired list entitled 
 to increased pay. — An officer was promoted 
 
 912 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1592. 
 
 on the retired list from the grade of lieutenant 
 commander to that of commander, pursuant to 
 a special act of Congress, approved March 11, 
 1902, which made no express pro\-ision for in- 
 creasing his retired pay, but proA^ded "that 
 the President is hereby authorized to nominate 
 to the Senate Lieutenant Commander R. M. G. 
 Brown, now on the retired list, to be a com- 
 mander on the retired list. "' Hdd, that under 
 said act the oiEcer on promotion was entitled 
 to the retired pay of a commander, notwith- 
 standing the pro^'isions of section 1591 of the 
 Re\'ised Statutes and the act of August 5, 1882, ' 
 forbidding increase of pav on the retired list. 
 (Comp. Dec, May 3, 1902, 2 S. and A. Memo., 
 31.) 
 
 A chief engineer was advanced on the retired 
 list from the rank of captain to the rank of rear 
 admiral, pursuant to a special act of Congress, 
 February 5, 1903, which said nothing about any 
 increase in his retired pay, but provided '"That 
 Chief Engineer DaAid Smith, United States 
 NaAy, retired, who served Avith credit through 
 both the ciA-il and Spanish- American Wars, and 
 who, in the performance of duty, incurred dis- 
 abilities from exposure, rendering him an in- 
 valid requiring the services of an attendant 
 ever since his detachment, February 7,1899, be 
 advanced on the retired list from March 3, 1899, 
 to the next higher grade."' Held, that under 
 this act the officer in question became entitled 
 to three-fourths the sea pav of a rear admiral of 
 the lower half. (Comp. Dec, Mar. 27, 1903, 
 22 S. and A. Memo., 173.) 
 
 Ofi&cers not entitled to increased pay on 
 promotion. — An officer of the Navy retired as 
 second assistant engineer with the rank of master 
 (now lieutenant, junior grade), and thereafter 
 promoted on the retired list and commissioned 
 as a first assistant engineer Avith the rank of 
 lieutenant, under the pro\isions of section 9 of 
 the act of March 2, 1867 (14 Stat., 517), did not 
 thereby become entitled to any increase of paj-, 
 such increase in pav being forbidden by the act 
 of July 15, 1870 (16 Stal., 333), now section 
 1591, Re\T.sed Statutes. The act of May 13, 
 
 1908 (35 Stat., 128), fixing new rates of pay for 
 officers of the Na\^, and proxiding that the 
 pay of retired officers should be based on the pay 
 therein fixed for officers of corresponding rank 
 and ser^dce on the active list, did not repeal 
 section 1591 so as to entitle this officer to the 
 retired pay of the rank of lieutenant, to which 
 he had been promoted; but merely entitled him 
 to compute his percentage of active-duty pay 
 upon the new rates of pay prescribed by said act 
 of May 13, 1908, for the rank of lieutenant 
 (junior grade), which was the rank with which 
 he had been retired, and upon which his pay 
 was to be based under section 1588, Revised 
 Statutes. (Comp. Dec, July 28, 1908, 89 S. 
 and A. Memo., 6790.) 
 
 Pay of oflS^cers promoted under act of 
 July 1, 1918.— The act of July 1, 1918 (40 
 Stat., 717 ), authorizes the permanent promotion 
 of certain retired officers employed on active 
 duty in time of war, and entitles officers so per- 
 manently promoted to a higher grade to retired 
 pay upon their release from active duty based 
 on the active duty pay of the grade to which 
 promoted. (27 Comp. Dec, 78, 79, citing 26 
 Comp. Dec, 306, 409.) 
 
 Retired warrant officers of the Naw called to 
 active duty in time of war, under the act of 
 July 1, 1918 (40 Stat., 717), are entitled to count 
 their active serAice since retirement in deter- 
 mining their right to promotion in the various 
 pay grades of warrant officers as pro\ided by 
 section 1556, ReAised Statutes, the pay grade to 
 which thus promoted becoming the basis upon 
 which theii" retired pay subsequent to release 
 from active duty is to be computed. (26 Comp. 
 Dec, 409.) 
 
 A commissioned warrant officer advanced to 
 the pay grades of lieutenant (junior grade) or 
 lieutenant, in accordance with the act of July 1, 
 1918 (40 Stat., 717), on account of active duty 
 rendered in time of war, is entitled upon relief 
 from active duty to have his retii-ed pay there- 
 after computed upon the higher pay grade to 
 which so permanently advanced. (26 Comp. 
 Dec, 306.) 
 
 Sec. 1592. [Pay on active duty.] Officers on the retired list, when on active 
 duty, shall receive the full pay of their respective grades. — (1 June, 1860, c. 
 67, s. 5, V. 12, p. 27. 2 Mar., 1867, c. 174, s. 9, v. 14, p. 517.) 
 
 Active duty by retired officers in time of war 
 was authorized by sections 1462, 1463, and 
 1464, ReAdsed Statutes. 
 
 ActiA'e duty for retired officers, with the pay 
 and allowances of the grade from which 
 retired, was authorized by act of June 7, 
 1900 (31 Stat., 703), which expired Ijy its 
 terms at the end of 12 years from date of its 
 enactment. 
 
 ActiA'e duty for retired officers, Avith their con- 
 sent, Avith the pay and allowances, in time 
 of peace, of an officer of the actiA-e list of the 
 same rank, not to exceed the pay and allow- 
 ances of a lieutenant (senior grade), was 
 authorized bv act of Aug. 22, 1912, 37 
 Stat., 329.) 
 
 By act of August 29, 1916 (39 Stat., 581), it was 
 proA-ided that any retired officer detailed 
 to actiA'e duty shall, Avhile so serA-ing, re- 
 ceive the active-duty pay and allowances 
 
 of the grade, not aboA-e that of lieutenant 
 commander in the NaAy or of major in the 
 Marine Corps, that he Avould haA-e attained 
 in due course of promotion if he had re- 
 mained on the actiA'e list for a period 
 beyond the date of his retirement equal to 
 the total amount of time he has been 
 detailed to actiA'e duty since retirement. 
 (Act Aug. 29, 1916, 39 Stat., 581.) 
 
 By act of April 10, 1018, section 1 (40 Stat., 516), 
 it was proA'ided that retired chief warrant 
 officers, while detailed to actiA-e duty, 
 shall be entitled to the pay and allowances 
 of a lieutenant (junior gi'ade), if their total 
 service, actiA'e and retired, since date of 
 commission equals six years, and to the 
 pay and allowances of a lieutenant if such 
 total serA'ice equals 12 years. 
 
 By act of April 10, 1918, section 2 (40 Stat., 516), 
 it was provided that retired warrant officers, 
 
 913 
 
Sec. 1502. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 while on active duty, shall he entitled to 
 the i)ay and allowances of a lieutenant 
 (junior fjrade), if their total service, active 
 and retired, since date of warrant, equals 
 12 years; and to the pay and allowances of 
 a lieutenant if such total service equals 18 
 years. 
 By act of July 1, 1918 (40 Stat., 717), it was 
 proA-ided that retired commissioned or war- 
 rant officers of the NaAy or Marine Corps 
 ordered to active duty in time of war or 
 national emero;ency shall be entitled to 
 promotion on the retired list to the grade 
 or rank, not above that of lieutenant com- 
 mander in the Na\'y or major in the Marine 
 Corps, and shall thereafter receive the pay 
 and allowances thereof, which their total 
 active servdce as officers, prior and subse- 
 quent to retirement, in the manner ren- 
 dered by them, would have enabled them 
 to attain in due course of promotion had 
 such service been rendered continuously 
 on the active list diu'ing the period of time 
 last past. 
 By the act of July 1, 1918 (40 Stat., 717), it was 
 pro^'ided that retired commissioned or 
 warrant officers of the NaAy or Marine 
 Corps, while on active duty during the 
 existence of war or national emergency, 
 may be temporarily commissioned in such 
 higher grade or rank on the retired list, not 
 above lieutenant commander or major, as 
 the case may be, as the President may de- 
 termine, and when so advanced, shall, 
 while on such active duty, be entitled to 
 the same pay and allowances as officers of 
 like grade or rank on the active list; and 
 upon relief from active duty, not later 
 than six months after the war or emergency 
 terminates, shall revert to their former 
 grade or rank, and pay and allowance 
 status on the retired list. 
 Detail of retired officers to educational institu- 
 tions was authorized by section 1225, 
 Revised Statutes, as amended, and other 
 laws noted under that section. 
 Retired enlisted men on active duty. — See acts 
 of March 3, 1915 (38 Stat., 941), August 29, 
 1916 (39 Stat., 591), and July 1, 1918 (40 
 Stat., 719); and see note to section 1569, 
 Re\dsed Statutes. 
 Marine officers. — Section 1622, Revised 
 Statutes, simply provides for the conditions 
 precedent to the retirement of an officer of the 
 Marine Corps and in no way changes the juris- 
 diction to which he is subject or the conditions 
 under which he may be again placed on active 
 duty. (Jonas v. U. S., 50 Ct. Cls., 281.) 
 
 The Secretary of the Na^-y exercised his 
 authority properly under the act of August 22, 
 1912 (37 Stat., 329), when he assigned a retired 
 Marine officer to active duty as post quarter- 
 master, and upon such assignment the officer 
 became entitled to the pay and allowances 
 pro\ided in said act. (Jonas v. U. S., 50 Ct. 
 Cls., 281.) 
 
 Coimnissioned "warrant officers. — A com- 
 missioned wairant officer ranks with but after 
 ensign; as such commissioned officer there is no 
 actual rank or grade to which he would attain 
 in due course of promotion on the active list, 
 for there is no due course of promotion for such 
 
 officers as a class. However, the act of Au- 
 gust 29, 1916 (39 Stat., 578), authorizes the 
 advancement of commissioned warrant officers 
 after prescribed periods of ser\icc to the pay 
 and allowances of lieutenant (junior grade) and 
 lieutenant, respectively. Such advancement 
 in "pay grades which a commissioned warrant 
 officer might attain in due course on the active 
 list is applicable, under the act of July 1, 1918 
 (40 Stat., 717), to such commissioned warrant 
 officers employed on active duty in time of 
 war, based upon their active service both prior 
 and subsequent to retirement. Such com- 
 missioned warrant officers so advanced in pay 
 while on active duty are entitled, upon relief 
 from such duty, to have their retired pay com- 
 puted upon the higher pay grade to which 
 advanced. (26 Comp. Dec, 306.) 
 
 A retired chief warrant officer on active duty 
 since August 29, 1916, was not entitled to the 
 pay and allowances of a lieutenant (junior 
 grade) under the first section of the act of 
 April 10, 1918 (40 Stat., 516), because he had 
 not served a total of six years from the date of 
 his commission as a chief warrant officer; he 
 would have been entitled to the pay of a lieu- 
 tenant (junior grade) under the second section 
 of the act of April 10, 1918, but for his promotion 
 to chief warrant officer. Neither section of th^at 
 act, therefore, entitled him to such increased 
 pay. Nor is he entitled to such pay under the 
 pi'ovision in the act of March 3, 1909 (35 Stat., 
 771), pro\iding that ''no warrant officer, hereto- 
 fore or hereafter promoted six years from date 
 of warrant, shall suffer a reduction in pay 
 which, but for such promotion, would have 
 been received by him. ' ' This latter act merely 
 protected him from reduction in the pay -w hich 
 attached to the warrant office at the time he 
 vacated it by promotion; and liis promotion 
 occurred prior to the passage of the act of 
 April 10, 1918. The act of March 3, 1909, does 
 not entitle a chief warrant officer to the benefit 
 of increased pay made a part of the warrant 
 grade by legislation enacted after his promo- 
 tion. (26 Comp. Dec, 935.) 
 
 Increased pay from date stated in com- 
 mission. — A retired officer of the Navy, tem- 
 porarily advanced to the grade of lieutenant 
 commander on the retired list, while on actiA'e 
 duty pursuant to the pro\isiou in the act of July 
 1, 1918 (40 Stat., 717), authorizing such tem- 
 porary advancement in grade, held, entitled to 
 tlie active-duty pay of a lieutenant commander 
 from the date stated in his commission, provided 
 he was on active duty on that date. (Comp. 
 Dec, Oct. 11, 1918, 212 S. and A. Memo., 4681. 
 Compare, 17 Op. Atty. Gen., 495, noted under 
 sec. 1591; and White v. U. S., 239 U. S. 608, 
 noted below, under "Active duty in time of 
 peace.") 
 
 Increased pay under act of August 29, 
 1916. — A retired officer detailed to active duty 
 is entitled, under the act of August 29, 1916 (39 
 Stat., 581), to the increased pay of a higher rank 
 while on active duty from the date that his run- 
 ning mate on the active list of the Na\y receives 
 a temporary appointment in such higher rank, 
 'in due course of promotion." (Comp. Dec, 
 Nov. 12, 1918, 213 S. and A. Memo., 4724.) 
 
 Active duty in time of peace. — Reference 
 to sections 1462, Re\ised Statutes, shows that 
 
 914 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1593. 
 
 section 1592 is intended to apply to the rates of 
 pay of naval officers only in time of war, and 
 consequently can have no bearing upon the 
 issue involved in the case of an officer ordered to 
 active duty under more recent atatutes. (Sears 
 v. U. S., 46Ct. Cls., 105.) 
 
 A retired officer employed on active duty in 
 time of peace, pursuant to the act of June 7, 1900 
 (31 Stat., 703), was entitled only to the pay of 
 the rank held by him on the active list at the 
 time of retirement and not to the active-duty 
 pay of an officer of corresponding rank and 
 sen-ice on the active list. (Sears i'. U. S., 46 
 Ct. Cls., 105.) 
 
 A retired officer performing active duty under 
 the act of June 7, 1900 (31 Stat., 684), was 
 entitled only to the same pay that he was receiv- 
 ing at the time of his retirement; he was not en- 
 titled while on active duty to the benefits of 
 longe\T.ty increase accruing after the date of his 
 retirement. There is no apparent reason for 
 gi^-ing a retired officer on active duty a higher 
 rate of pav than he was receiving at the time of 
 his retirement. (Faust v. U. S., 42 Ct. Cls., 94.) 
 
 The pay of a retired officer of the Na^y ordered 
 to active duty is governed by the law under 
 which his orders are issued. Thus, an officer 
 who held the grade of lieutenant commander on 
 the active list, but was retired with the rank of 
 commander, was entitled, while on active duty 
 under the act of June 7, 1900 (31 Stat., 703), to 
 
 the active-duty pay of the grade of Lieutenant 
 commander, which was the grade from wliicli he 
 was retired, and not to the active duty pay of 
 the rank of commander, held by him on the 
 retired list. (Sears v. U. S., 46 Ct. Cls., 105.) 
 
 The act of March 4, 1913 (37 Stat., 891, 892), 
 proA-ided that ''all officers of the NaAy who, 
 since the thii-d day of March, eighteen hundred 
 and ninety-nine, have been advanced or may 
 hereafter be advanced in grade or rank pursu- 
 ant to law shall be allowed the pay and allow- 
 ances of the higher grade or rank from the dates 
 stated in their commissions." Certain officers 
 were advanced in rank at the time of their retire 
 ment, in accordance with sections 8 and 11 of 
 the naval personnel act of ISIarch 3, 1899 (30 
 Stat., 1006, 1007), and continued on active duty 
 for several vears thereafter, in accordance with 
 the act of June 7, 1900 (31 Stat., 703). For such 
 active duty they were allowed the active duty 
 pay of the rank which they held prior to their 
 retirement. Held, that the act of 1913 applied 
 onlv to officers on the active List. The act of 
 August 22, 1912 (37 Stat., 328, 329), which 
 limited the pay which retired officers thereafter 
 ordered to active duty might receive, conffi-ms 
 this conclusion, (^\"hite v. U. S., 239 II. S., 
 608. See note above, under "Increased pay 
 from date stated in commission.'") 
 
 For other cases, see notes to sections 1588 
 and 1591, ReAdsed Statutes. 
 
 Sec. 1593. [Officers retired on furlough pay.] Officers placed on the retired 
 list, on furlough pay, shall receive only one-half of the pay to which they would 
 have been entitled if on leave of absence on the active list. — (3 Mar., 1835, c. 
 27, s. 1, V. 4, pp. 756, 757. 28 Feb., 1855, c. 127, s. 2, v. 10, p. 616. 16 Jan., 
 1857, c. 12, s. 1, V. 11, p. 154. 3 Aug., 1861, c. 42, s. 23, v. 12, p. 291. 28 
 July, 1866, c. 312, s. 2, v. 14, p. 345. 30 Jan., 1875, c. 30, v. 18, p. 304.) 
 
 See sections 1442, 1454, 1557, 1558, and 1594, 
 
 RoAdsed Statutes; and notes to those 
 
 sections. 
 
 Section 1593 not repealed. — Section 
 
 1442 gives the right to furlough an officer of the 
 
 Na"\y, and section 1557 fixes the proportion of 
 
 gay that he shall have while on furlough, 
 ection 1454 proAides for retiring officers of 
 the Na\y on furlough pay, and section 1593 
 pro\-ides specifically that such officers "shall 
 receive only one-half of the pay to which they 
 would haA'e been entitled if on leave of absence 
 on the active list. " These sections are not re- 
 pealed. (15 Comp. Dec, 70.) 
 
 Under the act of May 13, 1908, one-half 9f 
 full pay based on the rates fixed by that act is 
 the proper pay to be allowed an officer of the 
 Na^y wliile on furlough, or while on the re- 
 tired list on fm'lough pay. (15 Comp. Dec, 
 70.) 
 
 The assimilating clause of section 13 of the 
 NaAy personnel act of March 3, 1899 (30 Stat., 
 1004, 1007), giving certain officers of the Navy 
 the same pay as allowed officers of correspond- 
 ing rank in the Army, applied only to officers 
 on the active list, and did not, therefore, re- 
 peal the prior laws respecting the pay fixed by 
 section 1593 of the Re\is8d Statutes for officer 
 
 compulsorily retired, under section 1452, for 
 incapacity not resulting from any incident of 
 the serAT-ce. (Hannum v. 'U. S., 226 U. S., 
 436.) 
 
 Not applicable to Marine oflB.cers. — 
 Section 1593 does not apply to officers of the 
 Marine Corps. Accordingly, such an officer, 
 retired for disability not incident to the serAdce, 
 and in whose case it was directed by the Presi- 
 dent that he be retired on furlough pay, was 
 nevertheless entitled to full retirea pay as 
 pro\ided by section 1274, RoAdsed Statutes, 
 relating to the Army, and made applicable to 
 the Marine Corps by sections 1622 and 1623, 
 Re\-ised Statutes. It is not competent for the 
 President to place retired officers on a different 
 rate of pay than that which the law has fixed. 
 (15 Op. Atty. Gen., 442.) 
 
 Report of board under which ofl&cer 
 retired.— An officer is legally retired on fur- 
 lough pay for incapacity not the result of an 
 incident of the ser\dce where the retiring board 
 reports that there was no e\'idence that his 
 incapacity was the result of any incident of 
 the sendee. It is incumbent on the officer 
 whose case comes before a retiring board to 
 show, in order to secure a report which will 
 entitle him to be placed on the retired list, 
 
 915 
 
Sec. 1595. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 rather than on the retired list on furlough pay, 
 that his incapacity was the result of some inci- 
 (h'lit of the service. Accordingly, the report 
 of the board that there was no CAddence to sup- 
 
 port such a finding is to all intents and purposes 
 a report that the incapacity was not the result 
 of an incident of the service. (Brown v. U. S., 
 113 U. S., 568, 573.) 
 
 Sec. 1594. [Transfer from furlough to retired pay list.] The President, by 
 and with the advice and consent of the Senate, may transfer any officer on the 
 retired list from the furlough to the retired-pay list. — (16 Jan., 1857, c. 12, 
 s. 3, V. 11, p. 154. 16 July, 1862, c. 183, s. 20, v. 12, p. 587. 30 Jan., 1875, 
 c. 30, V. 18, p. 304.) 
 
 See 
 
 1442, 1454, 1557, 1558, 
 Statutes; and notes 
 
 and 
 to 
 
 1593, 
 those 
 
 sections 
 Revised 
 sections. 
 
 Increased pay prohibited. — By act of 
 August 5, 1882 (22 Stat., 28G), it was provided 
 that "hereafter there shall be no promotion or 
 increase of pay in the retired list of the Navy, 
 but the rank and pay of officers on the retired 
 list shall be the same that they are when such 
 officers shall be retired." Held, that this 
 statute prohibits the transfer of an officer from 
 the furlough to the retired pay list, under sec- 
 tion 15'.;)4, Revised Statutes, with increase of 
 pay; also held, that such officer can not be 
 simultaneously retired on furlough pay and 
 transferred to the retired pay list, so as to give 
 him the pay of the latter.(18 Op.Atty.Gen.,96.) 
 
 (That furlough pay is now the same as the pay 
 received by officers on the half-pay retired list. 
 
 see 15 Comp. Dec, 70, noted under section 
 1593, Revised Statutes; see also note to section 
 1588, Revised Statutes. Transfer from the 
 furlough to the retired pay list would not, 
 therefore, involve any increase of pay under 
 existing laws.) 
 
 Idberal construction. — Section 1594, Re- 
 vised Statutes, authorizing the transfer of a 
 retired officer of the Navy from the fuiiough to 
 the retired pay list, being intended to afford 
 relief from the consequences of the findings of 
 retiring boards, should be construed liberally; 
 and being so construed, it is held that the Presi- 
 dent has power under it, with the advice 
 and consent of the Senate, to make the transfer 
 relate back to a time when in his judgment it 
 ought to have been granted. (U. S. v. Burch- 
 ard, 125 U. S., 176.) 
 
 Sec. 1595. [Rations.] Rations shall not be allowed to officers on 
 retu-ed list.— (16 July, 1862, c. 183, s. 20, v. 12, p. 587.) 
 
 the 
 
 See notes to sections 1578 and 1579, Revised 
 Statutes, as to rations of officers on the 
 active list; and see note to section 1592, 
 
 Revised Statutes, as to pay and allowances 
 of retired officers on active duty. 
 
 916 
 
CHAPTER NINE. 
 
 THE MARINE CORPS. 
 
 See. 
 1596. 
 
 1597. 
 1598. 
 1599. 
 
 1600. 
 1601. 
 1602. 
 1603. 
 1604. 
 1605. 
 1606. 
 1607. 
 1608. 
 1609. 
 
 Number and grades of officers and en- 
 listed men. 
 
 When number of officers may be exceeded. 
 
 Staff separate from line. 
 
 Qualifications for appointment and pro- 
 motion. 
 
 Credit for volunteer service. 
 
 Rank of commandant. 
 
 Staff rank. 
 
 Relative rank with. Army. 
 
 Brevets. 
 
 Advancement in number. 
 
 Promotion when grade is full. 
 
 Promotion for gallantry. 
 
 Enlistments. 
 
 Oath. 
 
 Sec. 
 
 1610. Exemption from arrest. 
 
 1611. Companies and detachments. 
 
 1612. Pay and allowances. 
 
 1613. Marine band. 
 
 1614. Deduction for hospitals. 
 
 1615. Rations of enlisted men. 
 
 1616. Service on armed vessels. 
 
 1617. Command of navy yards or vessels. 
 
 1618. Marines substituted for landsmen. 
 
 1619. Duty on shore. 
 
 1620. Regulations. 
 
 1621. When detached for service with 
 
 Army. 
 
 1622. Retirement. 
 
 1623. Retiring board, how composed. 
 
 the 
 
 Sec. 1596. [Number and grades of oflGicers and enlisted men.] 
 
 This section provided as follo-ws: 
 
 " Sec. 1596. The Marine Corps of the United 
 States shall consist of one commandant, with 
 the rank of brigadier-general, one colonel, two 
 Ueutenant-colonels, four majors, one adjutant 
 and inspector, one paymaster, one quarter- 
 master, two assistant quartermasters, twenty 
 captains, thirty first lieutenants, thirty second 
 lieutenants, one sergeant-major, one quarter- 
 master-sergeant, one drum-major, one principal 
 musician, two hundred sergeants, two hundred 
 and twenty corporals, thirty musicians for a 
 band, sixty drummers, sixty fifers, and twenty- 
 five hundred privates."— (25 July, 1861, c. 19, 
 8. 7, V. 12, p. 275. 2 Mar., 1867, c. 174, s. 7, v. 
 12, p. 517.) 
 
 It was amended by acts of June 30, 1876 
 (19 Stat., 71), and January 30, 1885 (23 Stat., 
 293), which provided for a permanent reduc- 
 tion in the number of commissioned officers 
 of the Marine Corps to "not exceed seventy- 
 five;" and by act of May 4, 1898 (30 Stat., 369, 
 370), which authorized the appointment by the 
 President within twelve months following 
 said act of such additional temporary officers 
 of the Marine Corps, not above the rank of 
 captain, as might be requisite, such officers 
 to serve "only during the continuance of the 
 exigency under which their services are re- 
 quired in the existing war;" and further 
 authorized the Secretary of the Navy to enlist, 
 as a temporary force during the existing war, 
 not more than 60 gunnery sergeants wth the 
 rank of first sergeant, not more than 80 corporals, 
 and not more than 1 ,500 privates. 
 
 It was superseded by sections 18-24 of the 
 Navy personnel act of March 3, 1899 (30 Stat., 
 1008, 1009), section 18 of which act prescribed 
 the number of line officers; section 22, the 
 
 number of staff officers; section 23, the number 
 of enlisted men; and section 24, the number 
 constituting the Marine Band. These sections 
 are more fully noted below, with references 
 to amendatory statutes since enacted. 
 
 LAWS PRESCRIBING ORGANIZATION OP MARINE 
 CORPS. 
 
 Number and grades of commissioned officers. — 
 
 By act of March 3, 1899, section 18 (30 Stat., 
 
 1008), it was provided that the active list of the 
 
 line officers of the Marine Corps shall consist of — ■ 
 
 1 Brigadier general commandant; 
 
 5 Colonels; 
 
 5 Lieutenant colonels; 
 10 Majors; 
 60 Captains; 
 
 60 First lieutenants, and 
 60 Second lieutenants. 
 By the same act, secdon 22 (30 Stat., 1009), 
 it was provided that the staff of the Marine 
 Corps shall consist of 1 adjutant and inspectx)r, 
 1 quartermaster, and 1 paymaster, each with 
 the rank of colonel; 1 assistant adjutant and 
 inspector, 2 assistant quartermasters, and 1 
 assistant paymaster, each with the rank of 
 major; and 3 assistant quartermasters with the 
 rank of captain. 
 
 By act of July 1, 1902 (32 Stat., 686), the 
 commandant was given the rank of major gen- 
 eral during the service of the then incumbent. 
 By act of March 3, 1903 (32 Stat., 1198), the 
 following additional officers were authorized: 
 1 Colonel; 1 lieutenant colonel; 5 majors; 
 12 captains; 25 first lieutenants; 12 second 
 lieutenants; 1 assistant adjutant and inspector 
 with the rank of lieutenant colonel ; 2 assistant 
 adjutants and inspectors with the rank of 
 
 917 
 
Sec. 1596. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy, 
 
 major; 1 assistant quartermaster with the rank 
 of lieutenant colonel; 5 assistant quartermasters 
 with the rank of captain; 1 assistant paymaster 
 with the rank of lieutanent colonel, 1 assistant 
 pa\inaster with the rank of captain. 
 
 By act of ^fay 13, 1908 (35 Stat., 155), the 
 followinn; further increases were made in the 
 commissioned personnel: 1 Major general com- 
 mandant, in lieu of the then brigadier general 
 commandant; 1 colonel; 1 lieutenant colonel; 
 2 majors; 18 captains; 7 first lieutenants; and 
 14 second lieutenants. 
 
 By act of December 19, 1913 (38 Stat., 241), 
 it was ])ro\'ided that appointments as com- 
 mandant thereafter made should be for a term 
 of four years, that the appointee should be an 
 ofl5cer of the active list not below the grade of 
 field officer, who while ser^ing as commandant 
 should have the rank of major general, and be 
 carried as an additional number in his grade 
 and after his return to duty in his grade imtil 
 Baid grade is reduced to the number author- 
 ized by law; and that nothing contained in 
 said act "shall operate to increase or reduce 
 the total number of officers in the IMarrne Corps 
 now proA-ided by law." (For amendment to 
 this pro^ision, see act of Aug. 29, 1916, quoted 
 below.) 
 
 By act of June 12, 1916, section 3 (39 Stat., 
 224), the following additional officers were 
 authorized: 2 majors; 12 captains; 18 first lieu- 
 tenants; 2 assistant quartermasters with the 
 rank of captain ; and 1 assistant paymaster with 
 the rank of captain. 
 
 By act of August 29, 1916 (39 Stat., 609, 610), 
 the commissioned strength of the Marine Corps, 
 line and staff, was fixed on a percentage basis 
 of the enlisted strength, as follows: 
 
 ' ' Hereafter the total number of commissioned 
 officers of the active list of the line and staff of 
 the Marine Corps, exclusive of officers borne on 
 the Na%-y list as additional numbers, shall be 
 fom* per centum of the total authorized enlisted 
 strength of the acti^'e list of the Maiine Corps, 
 exclusive of the Marine Band, and of men 
 under sentence of discharge by court-martial, 
 distributed in the proportion of one officer with 
 rank senior to colonel to foiu" with the rank of 
 colonel, to five with the rank of lieutenant col- 
 onel, to fourteen with the rank of major, to 
 thirty-seven with the rank of captain, to thirty- 
 one wdth the rank of first lieutenant, to thirtj'- 
 onewiththerankof second lieutenant: * * * 
 Provided further, That in determining the offi- 
 cers with rank senior to colonel there shall be 
 included the officer ser\-in» as major general 
 commandant: And provided further, That ap- 
 pointments hereafter made. to the position of 
 major general commandant under the pro^d- 
 eions of the Act approved December nineteenth, 
 nineteen hundred and thirteen, entitled "An 
 Act to make the tenure of office of the major 
 general commandant of the ^farine Corps for a 
 term of four years," shall be made from officers 
 of the active list of the Marine Coq:)S not below 
 the rank of colonel: Prodded further, That the 
 officers serving in the senior grade of the Adju- 
 tant and Inspector"s,Quartermasters, and Pay- 
 master's Departments shall, while 8er\ing 
 therein, have the rank, pay, and allowances of a 
 brigadier general: Ana provided further, That 
 for the purpose of determining the number of 
 
 officers in the various ranks as herein provided 
 such staff officers shall be counted as being of 
 the rank of colonel." 
 
 (As to total authorized enlisted strength, 
 see laws noted below under this section. As 
 to number of staff officers, see note to section 
 1598.) 
 
 By act of May 22, 1917, section 4 (40 Stat., 
 85\ it was pro\'ided that additional commis- 
 sioned officers of the Marine Corjis shall be 
 temporarily appointed by the President, in his 
 discretion, based upon the temporary increase 
 in the number of enlisted men authorized by 
 said act; no such temporaiy appointment to be 
 made a])Ove the rank of major; and it was fur- 
 ther pro\"ided that during the period of the 
 existing war, vacancies in the total number of 
 commissioned officers in the Marine Corps 
 authorized by the act of August 29, 1916, might 
 be supplied by temporary appointments in the 
 lowest grades, and by temporary promotions 
 to all other grades, until a sufficient number of 
 officers should be available for regtilar appoint- 
 ment or promotion. 
 
 By act of July 1, 1918 (40 Stat., 715), the 
 said act of ^lay 22, 1917, section 4, was amended 
 so as to authorize the temporary appointment 
 of not exceeding 6 brigadier generals, 22 colo- 
 nels, and 22 lieutenant colonels, based on the 
 temporarj^ increase in the enlisted force of the 
 Marine Corps. 
 
 By said act of July 1, 1918 (40 Stat., 715), the 
 rank and title of major general was created in 
 the Marine Corps, and the President was au- 
 thorized to appoint, with the ad\ice and con- 
 sent of the Senate, one major general, "who 
 shall at all times be jimior in rank to the Major 
 General Commandant," and also one tempo- 
 rary major general, "who shall at all times be 
 junior to the permanent major general." 
 
 By act of January 12, 1919 (40 Stat., 1054), it 
 was pro\dded that temporary vacancies in the 
 Marine Corps, caused by the temporary promo- 
 tion of marine officers to higher grades in the 
 Army, while detached for ser\'ice with the 
 Army under section 1621, Revised Statutes, 
 "shall be temporarily filled in the same manner 
 as is now prescribed by law." 
 
 By act of June 4, 1920 (41 Stat., 830), 
 which authorized certain permanent appoint- 
 ments in the Marine Corps, to be accomplished 
 by June 30, 1921, it was pro^ided: "That the 
 officers now holding temporary appointments as 
 commissioned officers in the Marine Corps may 
 retain their temporary commissions until the 
 permanent appointments proA'ided for in the 
 foregoing section shall have been made." 
 
 As to additional number officers, Marine 
 Corps Reserve, etc., see note below under this 
 section. 
 
 Warrant officers and pay clerks. — By act of 
 August 29, 1916 (39 Stat., 611), "the warrant 
 grades of marine gunner and quartermaster 
 clerk" were established, and the number in 
 each grade fixed at twenty; and it was provid- 
 ed that officers in said grades "shaU have the 
 rank and receive the pay, allowances, and priv- 
 ileges of retirement of warrant officers in the 
 Navy." 
 
 By act of May 22, 1917, section 11 (40 Stat., 
 87), the appointment was authorized of 30 ma- 
 rine gunners and 30 quartermaster's clerks, 
 
 918 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1596. 
 
 additional to the number then prescribed by 
 law. 
 
 By act of June 4, 1920 (41 Stat., 830), it was 
 provided that "officers now holding temporary 
 commissions in the Marine Corps and who have 
 had more than ten years' service therein, if not 
 found qualified for permanent commissions, 
 and who are recommended by the board herein 
 pro\dded for, may be appointed warrant officers 
 in the Marine Corps; and the authorized num- 
 ber of warrant officers is hereby increased by a 
 number not to exceed fifty to provide for the 
 appointment of the aforesaid officers." 
 
 Bjr act of July 1, 1918 (40 Stat., 735), it was 
 provided that "the title of clerks for assistant 
 paymasters is hereby changed to pay clerk, 
 who shall hereafter receive the same pay, allow- 
 ances, and other benefits now provided by law 
 for clerks for assistant paymasters; and the total 
 number of pay clerks shall not exceed ten for 
 duty in the office of the paymaster, Marine 
 Corps, fifteen for duty in the paymaster's de- 
 partment at large, and one for each assistant 
 paymaster." (As to pay and allowances, etc., 
 of pay clerks, see note to sec. 1612.) By act of 
 June 24, 1910 (36 Stat., 625), appropriating for 
 one clerk for each assistant paymaster, it was 
 pro\dded that hereafter such clerk shall be 
 available where his services are required. 
 
 Number and grades of enlisted men. — By act of 
 March 3, 1899, section 23 (30 Stat., 1009), it was 
 pro\dded that the enlisted force of the Marine 
 Corps shall consist of 5 sergeant majors, 1 drum 
 major, 20 quartermaster sergeants, 72 gimnery 
 sergeants with the rank and allowance of first 
 sergeant, 60 first sergeants, 240 sergeants, 480 
 corporals, 80 drummers, 80 tnimpeters, and 
 4,962 privates. 
 
 By subsequent enactments, the following 
 additional noncommissioned officers and pri- 
 vates were authorized: 
 
 Act July 1, 1902 (32 Stat., 687): 10 gimnery 
 sergeants, 40 sergeants, 60 corporals, 10 dnim- 
 mers, 10 tnimpeters, and 620 privates. 
 
 Act March 3, 1903 (32 Stat., 1198): 1 sergeant 
 major, 40 quartermaster sergeants, 12 first ser- 
 geants, 65 sergeants, 55 corporals, 10 drummers, 
 10 trumpeters, and 527 privates. 
 
 Act March 3, 1905 (33 Stat., 1113): 10 first 
 sergeants, 67 sergeants, 142 corporals, 10 drum- 
 mers, 10 trumpeters, and 1,000 privates. 
 
 Act May 13, 1908 (35 Stat., 155): 2 sergeant 
 majors, 15 quartermaster sergeants, "five of 
 whom are to serve in the pay department," 20 
 first sergeants, 50 sergeants, 125 corporals, 10 
 drummers, 10 tnimpeters, and 518 privates. 
 
 Act August 22, 1912 (37 Stat., 350, 351): 4 
 sergeant majors, 4 quartermaster sergeants, 4 
 gunnery sergeants, 12 first sergeants, 18 ser- 
 geants, 35 corporals, 4 drummers, 4 trumpeters, 
 and 315 privates. 
 
 Act March 3, 1915 (38 Stat., 948): 20 gunnery 
 sergeants, 20 sergeants, and 70 corporals. _ The 
 number of privates was reduced by llOinthisact. 
 Act June 12, 1916 (39 Stat., 223, 224): 5 
 quartermaster sergeants, 5 gunnery sergeants, 
 5 first sergeants, and 11 sergeants. 
 
 Act August 29, 1916 (39 Stat., 612): 28 ser- 
 geant majors, 117 quartermaster sergeants, 107 
 gunnery sergeants, 107 first sergeants, 500 ser- 
 geants, 835 corporals, 50 drummers, 50 trum- 
 peters, and 3,235 privates. 
 
 The total strength of the above enlisted 
 grades, as fixed by the acts cited, was as fol- 
 lows: 40 sergeant majors, 1 drum major, 201 
 quartermaster sergeants, 218 gunnery sergeants, 
 226 first sergeants, 1,011 sergeants, 1,802 cor- 
 porals, 174 dnimmers, 174 tnimpeters, and 
 11,067 privates, making a grand total in all said 
 grades of 14,914. (As to number of Marine 
 Band, see below.) 
 
 By act of August 29, 1916 (39 Stat., 612), it 
 was pro\ided that ' ' the President is authorized, 
 when, in his judgment, it becomes necessary 
 to place the country in a complete state of 
 preparedness, to further increase the enlisted 
 strength of the Marine Corps to 17,400: And 
 provided, That the distrilnition in the various 
 grades shall be in the same proportion as that 
 authorized at the time when the President 
 aA'ails himself of the authority herein granted." 
 (In accordance with this provision, the enlisted 
 strength of the Marine Corps was increased to 
 17,400 by the President's order of Mar. 26, 
 1917.) 
 
 By act of May 22, 1917, section 2 (40 Stat., 
 84), it was provided "that the authorized en- 
 listed strength of the active list of the Marine 
 Corps is hereby temporarily increased from 
 17,400 to 30,000, this authorized strength being 
 distributed in the various grades of the enlisted 
 force in the same proportion as those authorized 
 at the date of the approval of this act." 
 
 By act of July 1, 1918 (40 Stat., 714), the 
 act of May 22, 1917, section 2, was reenacted 
 to read as follows: "That the authorized en- 
 listed strength of the active list of the Marine 
 Corps is hereby temporarily increased from 
 17,400 to 75,500, this authorized strength being 
 distributed in the various grades of the en- 
 listed force in the same proportion as those 
 authorized at the date of the approval of this 
 act: Provided, That not more than 25 per centum 
 of the authorized number of privates in the 
 ]\Iarine Corps shall have the rank of private, 
 first class, which rank is hereby established in 
 the Marine Corps." 
 
 By act of July 11, 1919 (41 Stat., 152), it was 
 provided that "the authorized enlisted strength 
 of the active list of the Marine Coi-ps is hereby 
 temporarily increased to 27,400, plus such 
 number of men as may be serving with the 
 American expeditionary forces abroad: Pro- 
 vided, That the average number of enlisted 
 men of the Marine Corps on active duty during 
 the fiscal year ending Jime 30, 1920, shall not 
 exceed 27,400, distribution in the various 
 grades to be made in the same proportion aa 
 provided under existing law." 
 
 By act of June 4, 1920 (41 Stat., 830), it was 
 provided that ' ' the authorized enlisted strength 
 of the active list of the Marine Corps is hereby 
 permanently established at 27,400, distribution 
 in the various grades to be made in the same 
 proportion as provided imder existing law." 
 
 By act of May 13, 1908 (35 Stat., 155), it was 
 pro\dded that "hereafter the number of en- 
 listed men in the United States Marine Corps 
 shall be such as the Congress may from time 
 to time authorize." 
 
 By act of June 30, 1914 (38 Stat., 403), it was 
 pro\ided "that hereafter the number of en- 
 listed men of the Navy and Marine Corps 
 pro\ided for shall be construed to mean the 
 
 919 
 
Sec. 1596. 
 
 Pt. 2. BE VIS ED STATUTES. 
 
 The Navy. 
 
 daily a\era2;e number of enlisted men in the 
 naval service during the fiscal year." 
 ' By act of AuR\i8t 20, 1916 (39 Stat., C12), it 
 was provided that "hereafter the number of 
 enlisted men of the Marine Corps shall be 
 exclusive of those sentenced l)y court-martial 
 to discharge." 
 
 By act of July 1, 1918 (40 Stat., 714, quoted 
 above), the rank of private, first class, was 
 established. 
 By act of July 11, 1919 (41 Stat., 152), it was 
 provided ''that the words 'enlisted men,' as 
 contained in prior appropriation acts, shall not 
 be construed to deprive women, enlisted or en- 
 rolled in the naval service, of the pay, allow- 
 ances, gratuities, and other beneiits granted by 
 law to the enlisted personnel of the Navy and 
 Marine Corps." 
 
 By act of June 4, 1920, section 7 (41 Stat., 
 836), it was provided "that hereafter the Sec- 
 retary of the Navy is authorized, in his discre- 
 tion, to establish such grades and ratings as may 
 be necessary for the proper administration of the 
 enlisted personnel of the Navy and Marine 
 Corps." 
 
 Marine Band. — The provision of section 1596, 
 Revised Statutes, above set forth, that "the 
 Marine Corps of the United States shall consist 
 of * * * thirty musicians for a band , ' ' was 
 superseded by section 24 of the Navy personnel 
 act approved IMarch 3, 1899 (30 Stat., 1009), 
 which pro^dded "That the band of the United 
 States Marine Corps shall consist of one leader, 
 with the pay and allowances of a first lieutenant; 
 one second leader, whose pay shall be seventy- 
 five dollars per month, and who shall have the 
 allowances of a sergeant major; thirty first-class 
 musicians, whose pay shall be sixty dollars per 
 month ; and thirty second-class musicians, whose 
 pay shall be fifty dollars per month and the al- 
 lowances of a sergeant; such musicians of the 
 band to have no increased pay for length of serv- 
 ice." (As to pay of Marine Band, see also note 
 to sec. 1613, R. S.) 
 
 By act of August 29, 1916 (39 Stat., 609, above 
 quoted), the total nimaber of commissioned 
 officers of the ^farine Corps is fixed at a percent- 
 age of "the total authorized enlisted strength 
 of the active list of the Marine Corps, exclusive 
 of the Marine Band * * *." The same act 
 (39 Stat., 612) provided "that the band of the 
 United States Marine Corps shall consist of one 
 leader, whose pay and allowances shall be those 
 of a captain in the Marine Corps; one second 
 leader, whose pay shall be $150 per month and 
 who shall have the allowances of a sergeant ma- 
 jor; ten principal musicians, whose pay shall 
 be §125 per month; twenty-five first-class musi- 
 cians, whose pay shall be $100 per month; 
 twenty second-class musicians, whose pay shall 
 be $85 per month ; and ten third-class musicians, 
 whose pay shall be S70 per month; such musi- 
 cians of the band to have the allowances of a 
 sergeant and to have no increase in the rates of 
 pay on account of length of ser\dce." 
 
 Additional officers and enlisted vien. — By act 
 of March 3, 1901 (31 Stat., 1108), it was pro- 
 vided that officers of the Marine Corps ad- 
 vanced under section 1605, Revised Statutes, 
 for services rendered during the war A\ath 
 Spain, shall be carried as additional numbers in 
 their grades. By act of June 16, 1906 (34 Stat., 
 
 296), it was provided that officers of the Marine 
 Corps advanced in rank for eminent and con- 
 spicuous conduct in battle or extraordinary 
 heroism, shall l)e carried as additional numl)ers 
 in each grade in which they serve, (See sees. 
 1605-1608, R. S.) 
 
 By act of August 29, 1916 (39 Stat., 609), 
 it was provided that "the promotion to the 
 grade of brigadier gon(>ral of any officer now 
 or hereafter carried as an additional number in 
 the gi-ade or with the rank of colonel shall be 
 held to fill a vacancy in the grade of brigadier 
 general." (This provision does not apply to 
 the officer serving as Major General Com- 
 mandant and carried as an additional number 
 in his grade under the act of December 19, 1913, 
 
 38 Stat., 241, quoted above, under "Number 
 and grades of commissioned officers." (See 
 note to sec. 1601, R. S.) 
 
 The said act of August 29, 1916 (39 Stat., 
 611), further provided that within two years 
 from the date thereof certain officers retired 
 for physical disability might be transferred to 
 the active list of the Marine Corps, and that 
 any officer so transferred "shall be carried as an 
 additional number in the grade to which he 
 may be transferred or at any time thereafter 
 promoted." 
 
 The said act of August 29, 1916 (39 Stat., 582, 
 586), authorized a Naval Flying Corps, to be 
 composed in part of 150 officers, detailed from 
 the line of the Navy and from the IMarine 
 Corps, or appointed to the line of the Navy or 
 Marine Corps, for aeronautic duties only, and 
 350 enlisted men, the said officers and enlisted 
 men to be in addition to the total nmnber of 
 officers and enlisted men which ' ' is now or may 
 hereafter be provided by law for the other 
 branches of the naval service." 
 
 Marine Corps Reserve. — ^The act of August 29, 
 1916 (39 Stat., 593), created a Marine Corps 
 Reserve, "to be a constituent part of the 
 Marine Corps and in addition to the authorized 
 strength thereof, ' ' under the same provisions in 
 all respects, except as may be necessary to 
 adapt the said provisions to the Marine Corps, 
 as those providing for the Naval Reserve Force 
 in the same act. (For amendments to said 
 act of Aug. 29, 1916, see acts of Mar. 4, 1917, 
 
 39 Stat., 1174, Apr. 25, 1917, 40 Stat., 37, 
 Apr. 25, 1917, 40 Stat., 38, May 22, 1917, 
 
 40 Stat., 84, July 1, 1918, 40 Stat., 708-712, 
 and June 4, 1920, 41 Stat., 834.) 
 
 Marine Corps instruction camps. — By act of 
 August 29, 1916 (39 Stat., 614), the Secretary 
 of the Navy was authorized to establish camps 
 of instruction for volunteer citizens designated 
 for such training. 
 
 Computing number of ofl3.cers. — The 
 naval appropriation act of August 29, 1916 
 (39 Stat., 577), proiides that "whenever a final 
 fraction occurs in computing the authorized 
 number of any corps, grade or rank in the 
 naval service, the nearest whole number shall 
 be regarded as the authorized number: Fro- 
 vidcd, That at least one officer shall be allowed 
 in each grade or rank." Held, that the words 
 "naval service" in this provision include the 
 Marine Corps, although the method of com- 
 puting by percentages the authorized number 
 of commissioned officers in that corps was pre- 
 scribed in a different part of the act. This 
 
 920 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1598. 
 
 concliision is strenginened by the fact that 
 Congress in the same act elsewhere made 
 specific reference to the "naval service" wdth 
 indisputable application to the Marine Corps, 
 in connection with the reinstatement of 
 "former officers of the Marine Corps who 
 resigned from the naval service in good stand- 
 ing." (File 28687-5, Aug. 29, 1916. See also 
 note to sec. 1G21, R. S.) 
 
 Reduction in nttmber of oflS.cers. — Con- 
 gress might disband the whole Marine Corps 
 without "any violation of the Constitution of 
 the United States and without any breach of 
 contract with the officers of the corps. If they 
 might do the greater act, they might certainly 
 do the less. If they might disband wholly, 
 they may siu-ely disband partially, without 
 any imputation of their having transcended 
 either their power or their duty. They have 
 disbanded the majors; that grade exists no 
 longer; and with the grade falls the claim to 
 pay. (1 Op. Atty. Gen., 489, 490; see also 
 note to sec. 1604, R. S.) 
 
 Distribution of enlisted men. — Under the 
 naval appropriation act of June 4, 1920 (above 
 quoted), fixing the permanent strength of the 
 active list of enlisted men in the Marine Corps, 
 
 held that the words ' 'in the same proportion as 
 provided under existing laws" continue the 
 grades existing at the date of the approval of 
 said act and definitely establish the number 
 in each; and the Secretary of the Navy is 
 without authority to increase the numbers in 
 said grades. (File 1112-1617, June 22, 1920.) 
 
 The further pro\'ision in said act, authorizing 
 the Secretary of the Na\-y to establish grades 
 and ratings, does not modify the provision first 
 above quoted, except in so far as it authorizes 
 the Secretary of the Navy to estaljlish such 
 new grades and ratings in Ihe Marine Corps as 
 may be necessary for the proper administration 
 of the enlisted personnel thereof, and assign 
 thereto such numbers of enlisted men as he 
 may deem expedient. In the event of the 
 Secretary of the Navy not availing himself of 
 the authority to establish new gi'ades and 
 ratings, those pro\ided for under existing law 
 prior to June 4, 1920, will continue as before. 
 (File 1112-1617, June 22, 1920.) 
 
 Grades established for pay purposes. — 
 See note to section 1612, Re\ised Statutes. 
 
 Status of Marine Corps; part of the 
 Navy. — See note to section 1621, Revised 
 Statutes. 
 
 Sec. 1597. [When number of officers may be exceeded. Obsolete.] 
 
 This section provided as follows: 
 
 "Sec. 1597. The provisions of the preceding 
 section shall not preclude the advancement of 
 any officer to a higher grade for distinguished 
 conduct in conflict with the enemy, or for extra- 
 ordinary heroism in the line of his profession, as 
 authorized by sections sixteen hundred and five 
 and sixteen hundred and seven." — (25 July, 
 1861, c. 19, s. 2, v. 12, p. 275. 16 July, 1862, c. 
 183, s. 9, V. 12, p. 584. 24 Jan., 1865, c. 19, s. 2, 
 V. 13, p. 424.) 
 
 It was rendered obsolete by the Na"\y per- 
 sonnel act of March 3, 1899, section 18 (30 Stat., 
 1008), which superseded "the provisions of the 
 preceding section," referred to herein, namely, 
 section 1596, Re\ised Statutes, by making new 
 and complete provisions as to the number of 
 officers who should compose the active list of 
 the Marine Corps. 
 
 Other enactments on this subject are con- 
 tained in the following statutes: Act March 3, 
 
 1901 (31 Stat., 1108), June 16, 1906 (34 Stat., 
 296), and August 29, 1916 (39 Stat., 609), noted 
 under section 1596, Revised Statutes, "Addi- 
 tional officers and enlisted men." See also 
 section 1606, Revised Statutes. 
 
 By act of August 29, 1916 (39 Stat., 609, 610), 
 quoted under section 1596, Revised Statutes, 
 under "Number and grades of commissioned 
 officers," new provisions were enacted as to the 
 number of officers allowed in the various grades 
 of the IVIarine Corps, and it was therein pro\ided 
 that the total number of commissioned officers 
 therein authorized, was "exclusive of officers 
 borne on the Navy list as additional numbers." 
 Officers advanced under sections 1605 and 1607, 
 Revised Statutes, become additional numbers 
 in grade under the acts of March 3, 1901, and 
 June 16, 1906, above cited. 
 
 See notes to sections 1363 and 1364, 
 Revised Statutes. 
 
 Sec. 1598. [Staff separate from line. Superseded.] 
 
 This section provided as follows: 
 
 "Sec. 1598. The staff of the Marine Corps 
 shall be separate from the Une." — (30 June, 
 1834, c, 132, s. 6, v. 4, p. 713. 2 Mar., 1847, c. 
 40, s. 3, V. 9, p. 154.) 
 
 It was superseded by the act of August 
 29, 1916 (39 Stat., 610), which abolished the 
 permanent staff system in the Marine Corps 
 and substituted therefor a system of temporary 
 details from the line, as follows: 
 
 "No further permanent appointments shall 
 be made in any grade in any staff department. 
 Any vacancy hereafter occurring in the lower 
 grade of any staff department shall be filled by 
 the detail of an officer of the line for a period of 
 four years unless sooner relieved; any vacancy 
 hereafter occurring in the upper grade of any 
 staff department shall be filled by the appoint- 
 
 ment of an officer with the rank of colonel 
 holding a permanent appointment in the staff 
 department in which the vacancy exists, or of 
 some other officer holding a permanent appoint- 
 ment in such staff department in case there be 
 no permanent staff officer with the rank of 
 colonel in that department, or of a colonel of 
 the line in case there be no officer holding a 
 permanent appointment in such staff depart- 
 ment. Such appointments shall be made by 
 the President and be for a term of four years, 
 and the officer so appointed shall berecom- 
 missioned in the grade to which appointed." 
 The said act of August 29, 1916 (39 Stat., 
 610), also made pro\'ision for transfers of per- 
 manent staff officers to the line, the said pro\d- 
 sion, which was temporary and has now ex- 
 pired, being as follows: 
 
 921 
 
Sec. 1599. 
 
 Ft. 2. REVISED STATUTES. 
 
 The Navy. 
 
 "That prior to June thirtieth, nineteen hun- 
 dred and eifihteen, an oliicer holding a per- 
 manent appointment in any staff department 
 may, upon his own a])plication, with the ap- 
 
 {)roval of the President, l)e reappointed in the 
 inc of the ^Iarine Corps in the grade and with 
 the rank he would hold on the date of his 
 reappointment if he had remained continuously 
 in the line: Provided, That no oflicer holding 
 a permanent appointment in any staff depart- 
 ment shall be recommissioned in the line with 
 the rank of colonel or lieutenant colonel: 
 Provided further, That such staff oliicer shall, 
 before being reappointed in the line of the Ma- 
 rine Corps as above provided, perform line 
 duties for one year, at the expiration of which 
 time he shall as a prerequisite to reappoint- 
 ment in the line be required to establish to the 
 satisfaction of an examining board consisting 
 of line ofiicers of the Marine Corps his physical, 
 mental, and professional fitness for the per- 
 formance of line duty." 
 
 By another clause in the same act (39 Stat., 
 610) it was provided ''that officers holding 
 permanent appointments in the staff depart- 
 ments shall not be eligible for appointment to 
 the grade of brigadier general of the line as 
 hereinbefore provided." 
 
 Proportion of officers in the staff. — 
 By act of August 29, 1916 (39 Stat., 610), it 
 was pro\'ided that — 
 
 "The total commissioned personnel of the 
 active list of the staff departments, whether 
 serving therein under permanent appointments 
 or under temporary detail, as herein proAided, 
 shall be eight per centum of the authorized 
 commissioned strength of the Marine Corps, 
 and of this total one-fifth shall constitute the 
 adjutant and inspector's department, one-fifth 
 the pajTnaster's department, and three-fifths 
 the quartermaster's department." 
 
 As to rank of senior staff officers see 
 note to section 1602, Revised Statutes. 
 
 As to promotion of officers in staff depart- 
 ments, see note to section 1-599, Revised 
 Statutes. 
 
 Duties of staff officers. — An adjutant was 
 provided for the Marine Corps as early as 
 July 11, 1798 a Stat., bM), and the quarter- 
 master and paymaster at least as early as Apr. 
 16, 1814 (3 Stat., 124). The act of March 3, 
 1899, section 22 (noted under section 1596, 
 
 R. S. ), simply increased the number of aissist- 
 ants to the three principal oflicei-s. It is to be 
 noted that in none of these acts are the duties 
 and functions of the three staff ofiicers in ques- 
 tion at all specified, but it can not on this ac- 
 count be held that the statute itself imposes 
 none. On the contrary, it is clear that these 
 duties and functions were presumed by Con- 
 gress to be so well understood as not to require 
 specific mention. Broadly, the adjutant is 
 the aid of the commander in maintaining mili- 
 tary discipline; the quartermaster attends to 
 the supplies of the command; and the pay- 
 master to the payment thereof. (30 Op. Atty. 
 Gen., 234.) 
 
 A regulation which woidd deprive the senior 
 staff officers in the Marine Corps of the functions 
 above enimierated, or place them in a situa- 
 tion where they would be unable to perform 
 them, is necessarily invalid. The headquarters 
 of the command is the only place where in the 
 nature of things those duties can be properly 
 performed. (30 Op. Atty. Gen., 234.) 
 
 Detachment of senior staff officers from 
 headquarters. — The President, as commander 
 in chief of the Army and Navy, may tempo- 
 rarily detail said staff officers (adjutant and in- 
 spector, quartermaster, and pajonaster) away 
 from the headquartei"s of their command, or 
 order them to perform temporarily additional 
 duties in the line of their staff fimctions or 
 outside of them. (30 Op. Atty. Gen., 234.) 
 
 A Navy regulation is invalid which permits 
 officers of the staff departments of the Marine 
 Corps to be detached permanently from the 
 headquarters of the Marine Corps, and gives the 
 power to the commandant of that corps to impose 
 duties upon these staff officers inconsistent 
 with their staff functions. (30 Op. Attv. 
 Gen., 234.) 
 
 DetaU of junior staff officer as head of 
 department. — It is clearly inconsistent with 
 the acta of Congress relating to the staff of the 
 Marine Corps, up to and including the act of 
 March 3, 1899, section 22 (noted under sec. 
 1596, R. S.), to relegate the quartermaster, for 
 example, to the position of an officer in his own 
 department, and to raise one of his assistants 
 to a position not recognized in the statutes, 
 namelv, "officer in charge of the quartermaster's 
 department." (30 Op. Atty. Gen., 234. But 
 see act Aug. 29, 1916, quoted above.) 
 
 Sec. 1599. [Qualifications for appointment and promotion. Superseded.] 
 
 This section provided as follows: 
 "Sec 1-599. No person under twenty or over 
 twenty-five years of age shall be appointed from 
 civil life as a commissioned officer of the Marine 
 Corps, nor shall any person be so appointed 
 until his cjualifications for such service have 
 been examined and approved, under the direc- 
 tions of the Secretary of the Navy." — (25 July, 
 1861, c. 19, 3. 3, V. 12, p. 275.) 
 
 It was superseded bv act of March 3, 1899 , 
 section 20 (30 Stat., 1008), which provided 
 "that no person except such officers or former 
 graduates of the Naval Academy as have served 
 m the war with Spain, as hereinbefore provided 
 for, shall be appointed a commissioned officer 
 in the Marine Corps who is under twenty or over 
 thirty years of age; and that no person shall be 
 
 appointed a commissioned officer in said corps 
 until he shall have passed such examination as 
 may be prescribed by the President of the 
 United States, except graduates of the Naval 
 Academv, as above provided * * *." 
 
 The said act of March 3, 1899, Section 19 (30 
 Stat., 1008), pro\dded that "the vacancies exist- 
 ing in said Corps after the promotions and 
 appointments herein provided for shall be filled 
 by the President from time to time, whenever 
 the actual needs of the naval service require it, 
 first, from the graduates of the Naval Academy 
 in the manner now proA^ided by law; or second, 
 from those who are serving or who have served 
 as second lieutenants in the Marine Corps 
 during the war with Spain; or, third, from 
 meritorious noncommissioned officers of the 
 
 922 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1599. 
 
 Marine Corps; or, fourth, from civil life: Pro- 
 vided, That after said vacancies are once filled 
 there shall be no further appointments from 
 civil life." 
 
 OTHER LAWS RELATING TO APPOINTMENT. 
 
 Act of March 3, 1903 (32 Stat., 1198), provided 
 "that the vacancies now existing in the line and 
 the staff departments of the Marine Corps and 
 those created by this Act below the grade of 
 brigadier-general shall be filled, respectively, 
 first by promotion by seniority and then by 
 selection and appointment as now provided by 
 law, excepting that vacancies in the grade of 
 second lieutenant shall be filled first, as far as 
 practicable, from graduates of the Naval 
 Academy each year on completing the pre- 
 scribed course at the Naval Academy, exclu- 
 sive of the probationary tour of sea service 
 before final graduation, then from meritorious 
 noncommissioned officers and from ci^dl life 
 between the ages of twenty-one and twenty- 
 seven years." 
 
 Act of May 13, 1908 (35 Stat., 155), provided 
 "that the vacancies now existing in the line 
 and staff departments of the United States 
 Marine Corps and those created by this Act 
 shall be filled in the manner provided bylaw." 
 
 Act of July 9, 1913 (38 Stat., 103), provided 
 that "midshipmen on graduation shall be com- 
 missioned ensigns in the Navy, or may be 
 assigned by the Secretary of the Navy to fill 
 vacancies in the lowest commissioned grades of 
 the Marine Corps or Staff Corps of the Navy." 
 (For other laws relating to appointment of mid- 
 sliipmen on graduation, see note to sec. 1521, 
 R. S.) 
 
 Act ofAugiist 29, 1916 (39 Stat., 611), provided 
 "that no midshipman at the United States 
 Naval Academy or cadet at the United States 
 Military Academy who fails to graduate there- 
 from shall be eligible for appointment as a com- 
 missioned officer in the Marine Corps until after 
 the graduation of the class of which he was a 
 member." 
 
 The said act of August 29, 1916 (39 Stat., 
 610), further provided that "appointees to the 
 grade of second lieutenant, if appointed from 
 civil life, shall be between the ages of tvventy 
 and twenty-five years, and before receiving a 
 commission in the Marine Corps, each appointee 
 shall establish to the satisfaction of the Secre- 
 tary of the Navy Ms mental, physical, moral, 
 and professional qualifications for such com- 
 mission." 
 
 The said act of August 29, 1916 (39 Stat., 
 610), further provided that "the President of 
 the United States be, and hereby is, author- 
 ized, by and with the advice and consent of 
 the Senate, to appoint as second lieutenants 
 on the active list in the United States Marine 
 Corps, to take rank at the foot of the list of 
 second lieutenants as it stands at the date of 
 reinstatement, former officers of the Marine 
 Corps who resigned from the naval serAdce in 
 good standing: Provided, That they shall es- 
 tablish their moral, physical, mental, and pro- 
 fessional qualifications to perform the duties 
 of that grade to the satisfaction of the Sec- 
 retary of the Navy: Provided further. That the 
 Secretary of the Navy, in his discretion, may 
 
 waive the age limit in fa^'or of the aforesaid 
 former officers of the Marine Corps: Provided 
 further, That the prior service of such officers 
 and the service after reinstatement shall be not 
 less than thirty years before the age of retire- 
 -ment." 
 
 The same act (39 Stat., 611), provided "that 
 appointments from noncommissioned officers 
 of the Marine Corps and from civil life shall be 
 for a prol)ationary period of two years and may 
 be revoked at any time during that period by 
 the Secretary of the Navy: Provided further, 
 That the rank of such officers of the same date 
 of appointment among themselves at the end 
 of said probationary period shall, with the 
 approval of the Secretary of the Navy, be deter- 
 mined by the rei)ort of a board of Marine 
 officers who shall conduct a competitive pro- 
 fessional examination under such rules as may 
 be prescribed by the Secretary of the Navy and 
 the rank of such officers so determined shall be 
 as of date of original appointment with reference 
 to other appointments to the Marine Corps." 
 The act of May 22, 1917, section 10 (40 Stat., 
 87), authorized promotion, during the exist- 
 ing war, of probationary second lieutenants 
 without change in their probationary status. 
 The same act (39 Stat., 611), contained a 
 provision, which expired two years after the 
 date of its approval, authorizing the transfer 
 to the active list of the Marine Corps of certain 
 retired officers, officers so restored to be addi- 
 tional numbers and to have the position on the 
 active list which they would have had if not 
 retired. 
 
 By act of June 4, 1920 (41 Stat., 830), pro- 
 vision was made for permanent appointment 
 in the Marine Corps of officers serving tem- 
 porarily in the grades of captain and below, 
 such appointments to be made without regard 
 to age, in the same grades as held temporarily 
 or lower grades, according to qualifications, 
 it being required that such officers "shall 
 establish to the satisfaction of the Secretary of 
 the Navy, under such rules as he may prescribe, 
 their mental, moral, professional, and physical 
 qualifications to perform the duties of the grade 
 to which transferred or reappointed," and that 
 they take precedence with each other and with 
 other officers of the Marine Corps in such order 
 as may be recommended by a board of Marine 
 officers and approved by the Secretary of the 
 Navy. 
 
 The same act (41 Stat., 830), provided "that 
 all persons who served honorably as officers in 
 the Marine Corps or Marine Corps Reserve on 
 active duty at any time between April 6, 1917, 
 and the date of the passage of this act, and who 
 have been honorably discharged or assigned 
 to inactive duty shall be eligible for permanent 
 appointment in the same or a lower rank than 
 that held on discharge or assignment to inactive 
 duty, but not above the rank of captain, to 
 fUl vacancies existing or hereby created in the 
 permanent authorized strength of the Marine 
 Corps,"- under the same conditions as those 
 above set forth for officers then in the service. 
 All appointments under the act of June 4, 
 1920, from former officers, or officers holding 
 temporary appointments, or members of the 
 Marine Corps Reser\e, were required to be 
 accomplished by June 30, 1921. (41 Stat., 830.) 
 
 54641°— 22- 
 
 -59 
 
 923 
 
Sec. 1599. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 Officers dropped from the rolls of the Navy or 
 Marine Corps on account of absence without 
 leave or imprisonment imder sentence of civil 
 courts, shall not be elis^ble for reapi)ointment. 
 CfVct Apr. 2, 1918, 40 Stat., 501. See sec. 1441, 
 R. S., and note thereto for other pro\isions 
 disqualifjing former oflScers and midshipmen 
 for rea]ipointmentin the Navy or Marine Corps.) 
 
 QuaUlications for warrant officers. — By act of 
 Augxist" 29, 1916 (39 Stat., 611), creating the 
 warrant grades of marine g\mner and quarter- 
 master clerk, noted under section 1596, Re- 
 vised Statutes, it was provided that "they 
 shall be appointed from the noncommissioned 
 officers of the ^Marine Corps and clerks to quar- 
 termasters now ser\dng as such and who have 
 performed field service." 
 
 By act of June 4, 1920 (41 Stat., 830), it was 
 provided that officers then holding temporary 
 commissions in the Marine Corps, and who 
 had more than 10 years' ser^dce therein, if not 
 found (qualified for permanent commissions, 
 may be appointed warrant officers in the 
 Marine Corps if "recommended by the board 
 herein pro\ided for." 
 
 LAWS RELATING TO PROMOTION. 
 
 See sections 1605-1607, Revised Statutes, 
 as to advancement for heroism, etc. 
 
 Act of July 28, 1892 (27 Stat., 321), provided 
 "That hereafter promotions to every grade of 
 commissioned officers in the Marine Corps 
 below the grade of Commandant shall be made 
 in the same manner and under the same con- 
 ditions as now are or may hereafter be prescribed, 
 in pursuance of law, for commissioned officers 
 of the Army: Provided, That examining boards 
 which may be organized under the pro^'ision3 
 of this act to determine the fitness of officers 
 of the Marine Corps for promotion shall in all 
 cases consist of not less than five officers, three 
 of whom shall, if practicable, be officers of the 
 Marine Corps, senior to the officer to be exam- 
 ined, and two of whom shall be medical officers 
 of the Navy: Provided further, That when not 
 practicable'to detail officers of the Marine Corps 
 as members of such examining boards, officers 
 of the line in the Navy shall be so detailed. " 
 
 Act of October 1, 1890 (26 Stat., 562), relating 
 to promotions in the Army, and extended to 
 Marine Corps by above act of July 28, 1892, 
 contained the following provision in section 1 : 
 
 "That hereafter promotion to every grade 
 in the A rmy below the rank of brigadier general, 
 throughout each arm, corps, or department of 
 the ser\ace, shall; subject to the examination 
 hereinafter provided for, be made according 
 to seniority in the next lower grade of that 
 arm, corps, or department * * *." The 
 sams act of October 1, 1890, section 3, contained 
 the following: "That the President be, and he 
 is hereby, authorized to prescribe a system of 
 examination of all officers of the Army below 
 the rank of major to determine their fitness for 
 promotion, such an examination to be con- 
 ducted at such times anterior to the accruing 
 of the right to promotion as may be best for the 
 interests of the service: * * * And pro- 
 vided, That if any officer fails to pass a satis- 
 factory examination and is reported unfit for 
 promotion, the officer next below him in rank. 
 
 having passed said examination, shall receive 
 the promotion: And provided. That should the 
 officer fail in his physical examination and be 
 found incapacitated for service by reason of 
 physical disability contracted in line of duty 
 he shall be retired w'ith the rank to which his 
 seniority entitled him to be promoted; but 
 if he should fail for any other reason he shall 
 be suspended from promotion for one year, 
 when he shall be reexamined, and in case of 
 failure on such reexamination he shall be 
 honorably discharged with one year's pay 
 from the Army." 
 
 Act of March 3, 1899, auction 20 (30 Stat., 1009), 
 pro\ided, "That the officers of the Marine 
 Corps above the grade of captain, except 
 brigadier general, shall, before being promoted, 
 be subject to such physical, mental and moral 
 examination as is now, or may hereafter be, 
 prescribed by law for other officers of the 
 Marine Corps." 
 
 By said act of March 3, 1899, section 18 (30 
 Stat., 1008), it was provided that "vacancies 
 in the grade of brigadier general shall be filled 
 by selection from officers on the active list of 
 the Marine Corps not below the grade of field 
 officer." By act of August 29, 1916 (39 Stat., 
 609, 610), it was provided that "brigadier 
 generals shall be appointed from officers of the 
 Marine Corps senior in rank to lieutenant 
 colonel"; that the Commandant shall be 
 appointed from officers of the active list not 
 below the rank of colonel; and that officers 
 holding permanent appointments in the staff 
 departments shall not be eligible for appoint- 
 ment to the grade of brigadier general of the 
 line. 
 
 Act of June 3, 1916, section 24 (39 Stat., 183), 
 made applicable to the Maiine Corps by act of 
 July 28, 1892, above quoted, provided, "That 
 the provisions of existing law requiring exam- 
 inations to determine fitness for promotion of 
 officers of the Army are hereby extended to 
 include promotions to all grades below that 
 of brigadier general : Provided further. That ex- 
 aminations of officers in the grades of major 
 and lieutenant colonel shall be confined to 
 problems involving the higher functions of 
 staff duties and command. " 
 
 Act of August 29, 1916 (39 Stat., 610), pro- 
 vided "That for the purpose of advancement in 
 rank to "^nd including the grade of colonel, all 
 commissioned officers of the line and staff of 
 the Marine Corps shall be placed on a common 
 list in the order of seniority each would hold 
 had he remained continuously in the line. 
 All advancements in rank to captain, major, 
 lieutenant colonel, and colonel shall, subject 
 to the usual examinations, be made from offi- 
 cers with the next junior respective rank, 
 whether of the line or staff, in the order in 
 which their names appear on said list." 
 
 The said act of August 29, 1916 (39 Stat., 611), 
 further enacted that "the proAdsions of sec- 
 tions fourteen hundred and ninety-three and 
 fourteen hundred and ninety-four of the Re- 
 vised Statutes of the United States shall apply 
 to the Marine Corps." (See said sections and 
 notes thereto. Sec. 1493 required physical quali- 
 fication for promotion to all grades in the 
 Navy, except in the case specified in sec. 1494, 
 of partial disability incurred in line of duty.) 
 
 924 
 
The Navy. 
 
 Tt. 2. REVISED STATUTES. 
 
 Sec. 1599. 
 
 By said act oi August 29, 1916 (39 Stat., 611, 
 612), it was provided that — 
 
 "lu lieu of suspension from promotion of any 
 officer of the Marine Corps who hereafter fails 
 to pass a satisfactory professional examination 
 for promotion, or who is now under suspension 
 from promotion by reason of such failure, such 
 officer shall suffer loss of numbers, upon ap- 
 proval of the recommendation of the examin- 
 ing board, in the respective ranks, as follows: 
 Lieutenant colonel, one; major, two; captain, 
 three; first lieutenant, five; second lieutenant, 
 eight: Provided, That any such officer shall be 
 reexamined as soon as may be expedient after 
 the expiration of six months if he in the mean- 
 time again becomes due for promotion, and if 
 he does not in the meantime again become due 
 for promotion he shall be reexamined at such 
 time anterior to again becoming due for pro- 
 motion as may be for the best interests of the 
 8er\ice: Provided further, That if any such 
 officer fails to pass a satisfactory professional 
 reexamination he shall be honorably dischargea 
 with one year's pay from the Marine Corps." 
 
 Act of March 4, 1917 (39 Stat., 1171), empow- 
 ered commanding officers on foreign stations, 
 when authorized by the Secretary of the Navy, 
 to order boards of medical examiners and exam- 
 ining boards for examination of candidates for 
 promotion in the Marine Corps. (See note to 
 sec. 1493, R. S.) 
 
 Act of June 4, 1920 (41 Stat., 774), relating to 
 the Army provided that "Existing laws pro- 
 viding for the examination of officers for promo- 
 tion are hereby repealed, except those relating 
 to physical examination, which shall continue 
 to be required for promotion to all grades 
 below that of brigadier general, and except 
 also those governing the examination of officers 
 of the Medical, Dental, and Veterinary Corps." 
 (As to effect of this act upon promotions in the 
 Marine Corps, see decisions noted below.) 
 
 By said act of June 4, 1920, section 51 (41 
 Stat., 785, amending act June 3, 1916, sec. 127, 
 39 Stat., 217), it was pro\dded that "in time of 
 war any officer of the Regular Army may be 
 appointed to higher temporary rank without 
 vacating his permanent commission, such ap- 
 pointments in gi-ades below that of brigadier 
 general being made by the President alone, but 
 all other appointments of officers in time of war 
 shall be in the Officers' Reserve Corps." 
 
 Probationary appointments. — ^The act of 
 August 29, 1916 (above quoted), does not con- 
 ternplate the issuance of probationary appoint- 
 ments to former officers of the IMarine Corps 
 appointed as second lieutenants in accordance 
 with that act. (File 13261-544: 1, Oct. 10, 
 1916.) 
 
 Appointment of former student at 
 Naval Academy. — Under the act of March 3, 
 1899, providing for filling vacancies thereby 
 created in the staff of the Marine Corps, and 
 making eligiljle for appointment thereunder 
 line officers on the active list of the Marine 
 Corps not below the grade of captain, "who 
 shall have seen not less than ten years' service 
 in the Marine Corps," held that in estimating 
 the time which is necessary for qualification for 
 the promotion pro^dded for, the time of ser^dce 
 as a naval cadet at the Naval Academy and at 
 sea before being commissioned should be 
 
 coimted. This view is sustained by the act of 
 June 10, 1896 (noted under sec. 1600, R. S.). 
 f22 Op. Atty. Gen., 377.) 
 
 There can be no doubt about the proposition 
 that the time of service of a cadet at the Naval 
 Academy and at sea anterior to commission is 
 as much a time of preparation for service in the 
 Marine Corps as it is in the Navy proper, be- 
 cause the Marine Corps is an essential part of 
 the naval organization. Such time of prepara- 
 tion at the Academy and at sea having always 
 been counted for appointments and promotions 
 in the Navy proper, and the Marine Corps being 
 part of the Navy, there is no reason why the 
 benefits of time at the Academy and at sea an- 
 terior to commission should not he given to 
 persons seeking promotion in the Marine Corps 
 as well as in the Navy proper. (22 Op. Atty. 
 Gen., 377, 379.) 
 
 A person who took the regular four years' 
 course at the Naval Academy, and received a 
 certificate of graduation issued pursuant to the 
 act of August 5, 1882 (22 Stat., 284), without 
 rendering the two years' service at sea then 
 required for final graduation, held to be a grad- 
 uate of the Naval Academy within the meaning 
 of section 20 of the Navy personnel act ap- 
 proved March 3, 1899, providing for filling 
 vacancies in the Marine Corps. (22 Op. Atty. 
 Gen., 485.) 
 
 The exemption as to age limit in section 20 
 of the act of March 3, 1899 (above quoted), 
 with reference to the eligibility to appoint- 
 ments in the Marine Corps, is not restricted to 
 those who served in the Marine Corps during 
 the war with Spain, but extends to all gi-adu- 
 ates of the Naval Academy who served in that 
 war, including one who so served in the line of 
 the Navv. (22 Op. Atty. Gen., 485.) 
 
 See act of March 4, 1913 (37 Stat., 891), pro- 
 viding that service of a midshipman at the 
 Naval Academy, thereafter appointed to said 
 Academy, "shall not be counted in computing 
 for any purpose the length of serAdce of any offi- 
 cer in the Navy or in the Maiine Corps." 
 
 See section 1520, Revised Statutes, and 
 amendments noted thereunder, as to four years' 
 course at the Naval Academy. 
 
 See section 1621, Revised Statutes, and note 
 thereto, as to status of Marine Corps. 
 
 Appointments from enlisted men and 
 civil life. ^Section 19 of the Navy personnel 
 act of March 3, 1899, and the act of March 3, 
 1903 (both above quoted), considered, and held, 
 1st. That appointments to the grade of second 
 lieutenant in the Marine Corps may be made 
 from civil fife; 2d. That the limitation as to 
 age of appointees, contained in the latter act, 
 appUes only to appointments from civil life; 
 3d. That enlisted men of the Marine Corps, 
 other than noncommissioned officers, and also 
 enfisted men of the Navy, may be appointed 
 as second lieutenants. (File 13261-426, May 29, 
 1913, citing file 3727-2, Feb. 17, 1906, and 
 3259-98, May 19, 1898.) 
 
 Appointment and promotion distin- 
 guished. — -See note to sections 1458 and 1603, 
 RoA-ased Statutes; 
 
 Laws relating to promotion construed. — 
 Pre\iou3 to the act of July 16, 1862, chapter 
 183, there was no law which required officers in 
 any branch of the naval service, including the 
 
 925 
 
Sec. 1599. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Mariiu' Corps, to pass a ph\-8ical examination as 
 a preliminary to promotion. The fourth sec- 
 tion ol that act directed the Secretary of the 
 Navy to a]ipoint an atlvisory board of naval 
 ollicers, whoso duty it was to carefully scruti- 
 nize the active list of line ollicers in the Navy 
 above and including tlu; grade of master, and 
 rojwrt to the Secretary in ^vriting those found 
 to be worthy of promotion. The board in 
 recommending an officer for promotion w'as to 
 certify that he "has the moral, mental, physi- 
 cal, and professional qualifications to perform 
 efficiently all his duties, both at sea and on 
 shore, of the grade to which he is to be pro- 
 moted . " By the sixth section of the same act a 
 similar advisory board was to be appointed at 
 least once in every four years. These pro\'i- 
 sions applied solely to line officers of the Navy, 
 but were superseded by other provisions on the 
 same subject contained in the act of April 21, 
 1804, chapter 63. The latter provisions are 
 embodied in sections 1493, et seq., of the 
 Revised Statutes. They include both line 
 and staff officers, but in terms extend to those 
 only who are "on the active list of the Navy." 
 There is no statutory provision of this character 
 which expressly or impliedly includes officers 
 of the Marine Corps. (17 Op. Atty. Gen., 117, 
 June 11, 1881.) 
 
 Section 1493 of the Revised Statutes, requir- 
 ing physical examinations for promotion in the 
 Navy, "is not extended to the Marine Corps by 
 section 1621, Re\dsed Statutes. (17 Op. Atty. 
 Gen., 117, June 11, 1881.) 
 
 It would seem that the examination, physical 
 or other, of a retiring board, constituted under 
 section 1623, Revised Statutes, is the only one 
 to which an officer of the Marine Corps is by 
 law subjected in order to determine his fitness 
 for active duty; and unless the officer is by 
 this board found incapacitated for active serv- 
 ice, and the finding is approved by the Presi- 
 dent, he remains in the line of promotion on 
 the active list as he previously was, and is 
 entitled to all the rights which belong to his 
 position. (17 Op. Atty. Gen., 117, June 11, 
 1881.^ 
 
 The act of October 1, 1890 (26 Stat., 562), 
 which was extended to the Marine Corps by 
 the act of July 28, 1892 (above quoted), pro- 
 vided that examinations for promotion were 
 to be.held at such times "anterior to the accru- 
 ing of the right to promotion" as may be best 
 for the interoflts of the service. A question 
 haA'ing arisen as to whether certain officers to be 
 promoted in the Marine Corps to vacancies 
 created on July 10, 1892, in the offices of major, 
 captain, and first lieutenant, should or should 
 not be examined under the act of July 28, 1892, 
 held, that said promotions might be made with- 
 out the examinations in question; that the right 
 of the officers in question to promotion existed 
 from July 10, 1892, prior to the passage of the 
 law requii'ing examination; that the act of 
 October 1, 1890, having been construed by the 
 Army as not requiring examinations for officers 
 who had previously become due for promotion, 
 it must be understood that Congress enacted the 
 law of July 28, 1892, Avith full knowledge of such 
 construction, and did not intend that a right of 
 promotion earned by long ser\'ice and actually 
 accrued should be taken away by force of the 
 
 latter enactment. (20 Op. Atty. Gen., 433; 
 compare cases noted under sec. 1458, R. S.) 
 
 The words "usual examinations," as used in 
 the act of August 29, 1916 (above quoted), re- 
 ferred to the mental, moral, professional, and 
 physical examinations for promotion which offi- 
 cers of the Marine Corps \w\o\y the grade of 
 major were required to undergo by virtue of the 
 Army act of October 1, 1890, made applicable 
 to the Marine Corps by act of July 28, 1892; the 
 mental, moral, and physical examinations 
 which officers of the Marine Corps above the 
 rank of captain, except brigadier generals, were 
 required to undergo by the act of March 3, 1899; 
 the professional examination which officers of 
 the Marine Corps of the ranks of major and lieu- 
 tenant colonel were required to undergo by 
 virtue of the Army act of June 3, 1916, made 
 applicable to the Marine Corps by the act of 
 July 28, 1892; and the physical examination 
 which all officers of the Marine Corps were re- 
 quired to undergo by virtue of section 1493 of 
 the Revised Statutes, relating to the Navy, and 
 made applicable to the Marine Corps by the 
 act of August 29, 1916. (File 26521-405:1, 
 Sept. 15, 1920; see also 26521-405, June 30, 
 1920. The laws referred to are quoted above, 
 under this section.) 
 
 The act of August 29, 1916, should be con- 
 strued as referring to the "usual examinations" 
 which were required by law in the Marine 
 Corps_ on that date, regardless of whether such 
 examinations were originally prescribed by 
 Army laws, Navy laws, laws relating specifi- 
 cally to the Marine Corps, or a lawful regulation 
 of the Executive. No reference was made in 
 said act to examinations which might there- 
 after be prescribed by law for the Army or 
 Navy, and accordingly the system of examina- 
 tions then in force, and specifically required 
 for the Marine Corps by the act of August 29, 
 1916, must continue to be required until other- 
 wise pro\dded by Congress; it could not be 
 affected by any subsequent legislation relating 
 specifically to examinations in the Army and 
 which, in terms, is inapplicable to the Marine 
 Corps. So long as promotions in the Marine 
 Corps are made pursuant to the act of August 
 
 29, 1916, such promotions must be subject to 
 the "usual examinations" which were required 
 at the time said act was enacted, unless and 
 until Congress otherwise directs. (File 26521- 
 405:1, Sept. 15, 1920; see also 26521-405, June 
 
 30, 1920.) 
 
 Prior to the enactment of the Army act of 
 June 4, 1920 (41 Stat., 774), the system of pro- 
 motion in the Marine Corps was well under- 
 stood. The act of August 29, 1916, provided 
 that advancements in rank in the Marine Corps, 
 to and including the grade of colonel, were to 
 be made according to seniority from a ' ' common 
 list," and that advancements in rank to cap- 
 tain, major, lieutenant colonel, and colonel 
 were to be made "subject to the usual exami- 
 nations." There were other provisions in the 
 act which clearly indicated that the usual ex- 
 aminations were also intended to apply to pro- 
 motions to the grade of first lieutenant. (File 
 26521-405:1, Sept. 15, 1920; see also 26521-405, 
 June 30, 1920.) 
 
 The repeal of prior Army laws on the subject 
 of promotion, by the act of June 4, 1920 (41 
 
 926 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1600. 
 
 Stat., 774), without the substitution of any 
 other constructive legislation applicable to the 
 Marine Corps, leaves nothing upon which the 
 act of July 28, 1892, can operate, and the Marine 
 Corps is now governed wholly by the system of 
 promotion pro\dded for by the act of August 
 29, 1916, and prior statutes adopted by reference 
 therein or which are not inconsistent there- 
 vrith. Query: \\Tiether the ax;t of July 28, 
 1892, has been superseded or repealed in its 
 entirety? (File 26521-405 :1, Sept. 15, 1920; see 
 also 26521-405, June 30, 1920.) 
 
 The system of promotion in the Marine Corps, 
 including examinations and penalties, con- 
 tinues in force unaffected by anything con- 
 tained in the act of June 4, 1920, establishing a 
 new system of promotion in the Army. (File 
 26521-405:1, Sept. 15, 1920; see also 26521-405, 
 June 30, 1920.) 
 
 The promotion legislation in the Army act 
 of June 4, 1920, which covers several printed 
 pages of that act, is clearly not applicable to 
 the Marine Corps in its entu-ety. For example, 
 said act requires that promotions shall be made 
 from a common list of all officers of the Army 
 below the grade of colonel, with certain excep- 
 tions, and that this "promotion list" shall be 
 formed by a board of officers appointed by the 
 Secretary of War, "consisting of one colonel of 
 each of six branches of the service in which 
 officers are permanently commissioned under 
 the terms of this act, and one officer who, as a 
 member of the personnel branch of the General 
 Staff, has made a special study of merging 
 the present promotion lists into a single list." 
 It would be impossible to convene a board 
 in the Marine Corps constituted as required 
 by this provision to form a promotion list 
 for that service. The further provisions of 
 the Army act make it clear that the system 
 which it creates was never intended to apply 
 to promotions in the Marine Corps. (File 
 26521-405:1, Sept. 15, 1920; see also 26521-405, 
 June 30, 1920.) 
 
 The Army legislation of June 4, 1920, relating 
 to promotions, being as a whole clearly inappli- 
 cable to the Marine Corps, it can not be held 
 that a part of one sentence therein, which re- 
 peals "existing laws providing for the examina- 
 tion of officers for promotion * * * except 
 those relating to physical examination, which 
 shall continue to be required for promotion 
 to all grades below that of brigadier general 
 * * *, " should be applied to the Marine 
 Corps, and given the far-reaching effect of tear- 
 ing down a carefully constructed system already 
 in operation in that serWce, without providing 
 anything in its place. The repealing clause 
 
 can not be separated from the remainder of the 
 act, which provides a complete substitute for 
 the former system of promotion in the Army, 
 and which was apparently regarded as dispens- 
 ing -n-ith the necessity for the former tests of 
 efficiency, thus explaining the repeal of the 
 former laws relating to examinations, in so far 
 as such laws affected the Army. (File 26521- 
 405:1, Sept. 15, 1920; see also 26521-405, June 
 30, 1920.) 
 
 The new Army system of promotion was es- 
 tablished as a substitute for and supersedes the 
 former system followed in the Army under the 
 actof October 1, 1890, and amendments thereto. 
 It does not, however, pro\ide any substitute 
 for the system of promotion already in force in 
 the Marine Corps, and therefore cloes not su- 
 persede the Marine Coi-ps system which the 
 act plainly indicates was not intended to be 
 affected thereby. It is not reasonable to as- 
 sume that Congress intended with respect to 
 the Marine Corps to repeal prior laws relating 
 to examinations for promotion without pro- 
 \iding any substitute therefor, at the very 
 time it was creating in detail a complete sub- 
 stitute for such laws in the Army. (File 26521- 
 405:1, Sept. 15, 1920; see also 26521-405, June 
 30, 1920.) 
 
 The provision in the Army act of June 4, 
 1920, requiring physical examinations for pro- 
 motion to all grades below that of_ brigadier 
 general, is not applicable to the Marine Corps, 
 for the reason that physical examinations 
 prior to promotion to all grades in the Marine 
 Corps, without exception, are required by the 
 Navy law contained in section 1493 of the 
 Re^■ised Statutes, as extended and applied to 
 the Marine Corps by the act of August 29, 1916, 
 which legislation for physical examinations 
 in the Marine Corps in accordance with Navy 
 laws, certainly is not repealed by said act of 
 June 4, 1920. (File 26521-405:1, Sept. 15, 
 1920; see also 26521-405, June 30, 1920.) 
 
 Under the laws in force prior to Jime 4, 1920, 
 and which continued in force unaffected by the 
 Army act of that date, held: (1) A mental, 
 moral, and professional examination is required 
 for promotion in the Marine Corps to the grades 
 of first lieutenant, captain, major, lieutenant 
 colonel, and colonel; but not to the grades of 
 brigadier general and major general. (2) A 
 mental, moral, and physical examination is 
 required in the Marine Corps for promotion to 
 the grade of brigadier general, and a physical 
 examination is required for promotion to the 
 grade of major general. (File 26521^05:1, 
 Sept. 15, 1920; see also 26521-405, June 30, 
 1920.) 
 
 Sec. 1600. [Credit for volunteer service.] All marine officers shall be 
 credited with the length of time they may have been employed as officers or 
 enlisted men in the volunteer service of the United States. — (2 Mar., 1867, 
 c. 174, s. 3, V. 14, p. 516.) 
 
 All officers appointed to any corps of the Navy 
 or to the Marine Corps, after service in a 
 different corps of the Navy or of the Marine 
 Corps, shall have all the benefits of their 
 pre\dous service in the same manner as 
 if said appointments were a reentry into 
 
 the Navy or into the Marine Corps. (Act 
 June 10, 1896, 29 Stat., 361.) _ 
 Any warrant officer or pay clerk in the Marine 
 Corps who accepts appointment as com- 
 missioned officer in Marine Corps Reserve 
 shall be entitled, upon termination of such 
 
 927 
 
Sec. 1601. 
 
 Pt.2. REVISED STATUTES. 
 
 The Navy. 
 
 appointment, to revert to his former status 
 tis a warrant officer or pav clerk in the 
 Marine Corps, and shall "be entitled to 
 count all active reserve service for pur- 
 poses of longevity pay and retirement. 
 (Act July 11, 1919, 41 Stat., 141.) 
 
 Enlisted men of the Marine Corps discharged 
 to be commissioned or warranted as officers 
 in the Marine Corps Reserve, and who 
 reenlist in the Marine Corps after termina- 
 tion of reserve service, shall be entitled in 
 computing ser\'ice for retirement to credit 
 for all active reserve ser\ice. (Act July 
 11, 1919,41 Stat., 141.) 
 
 Enlisted men of the Marine Corps discharged 
 to be commissioned or warmnted in the 
 Marine Corps Reserve, and who reenlist 
 in the Marine Corps within three months 
 from date of termination of reserve service, 
 shall be restored to grade or rank held 
 before being discharged fiom Marine 
 Corps, and ser^•ice in the regular Marine 
 Corps, including active service in the 
 Marine Corps Reserxe shall be regarded as 
 continuous for purposes of continuous 
 service pay. (Act July 11, 1919, 41 Stat., 
 141.)- 
 
 1 .ongevity pay for officers in the Anny, Navy, 
 Marine Corps, Coast Guard, Public Health 
 Service, and Coast and Geodetic Survey, 
 shall be based on the total of all service 
 in any or all of said serxaces. (Act May 18, 
 1920, sec. 11, 41 Stat., 604.) 
 
 Musicians of the ]\farine Band are to have no 
 increase in their rates of pay on account of 
 length of service. (Act Aug. 29, 1916, 
 39 Stat., 612.)_ 
 
 Ser\ice of a midshipman at the Naval Academy 
 or of a cadet at the Military Academy 
 hereafter appointed to either of said 
 
 academies, shall not be counted in com- 
 puting for any purpose the length of 
 service of any officer in the Navy or Slarine 
 Corps. (Act Mar. 4, 1913, 37 Stat., 891. j 
 
 Service as paymaster's steward. — The 
 Revised Statutes, Title XY, chapter 9, classify 
 the Marine Corps as part of the Navy, and pro- 
 vide (sec. 1600), that all marine officers 
 shall be credited with the length of time they 
 may have been employed as officers or enlisted 
 men in the volunteer service of the United 
 States. An officer of the Marine Corps who 
 served as a paj-master 's steward in the Volun- 
 teer Navy is entitled to ha\e the time of such 
 ser\dce credited to him in the computation of 
 his longex'ity pay. (Muse v. U. S., 19 Ct. Cls., 
 441.) 
 
 The Na\^^ Regulations classify paymasters' 
 stewards as petty officers, and the Revised 
 Statutes (sec. 1410) include petty officers in 
 the more general designation of "all officers." 
 It is not, however, to be understood that all 
 petty officers are officers within the intent of 
 the ('onstitution or of a penal statute. In the 
 Navy, warrant officers and petty officers are 
 spoken of generally as officers, and section 1410 
 merely recognizes the usage. (Muse v. U. S., 
 19 Ct. Cls., 441.) 
 
 The Na^•y consists of officers, warrant officers, 
 petty officers, and seamen. The two terms 
 used in section 1600, "officers" and "enlisted 
 men" embrace, for the purpose of computing 
 longevity pay, all four classes in the Navy. 
 (Muse V. V. S., 19 Ct. Cls., 441.) 
 
 For other cases, see note to section 1612, 
 Revised Statutes, respecting longevity pay; 
 see also note to section 1599, Revised Statutes, 
 under " Appointment of former student at the 
 Naval Academy." 
 
 Sec. 1601. [Rank of commandant. Repealed.] 
 
 This section provided as follows: 
 
 '"Sec. 1601. The commandant of the IMarine 
 Corps shall have the rank of a brigadier-general 
 of the Army. " • (2 Mar., 1867, c. 174, s. 7, v. 14, 
 p. 517. 6 7une, 1874, c. 216, v. 18, p. 58.) 
 
 It was repealed by act of June 6, 1874 
 (18 Stat., 58), which pro\-ided that "the 
 office of commandant of the Marine Corps 
 having the rank of a brigadier general of the 
 Army shall continue until a vacancy shall 
 occur in the same and no longer; and when 
 such vacancy shall occur in said office, imme- 
 diately thereupon all laws and parts of laws 
 creating said office shall become inoperative, 
 and sliall by virtue of this act from thence- 
 forth be repealed: And provided further, That 
 thereafter the commandant of the Marine 
 Corps shall have the rank and pay of a colonel, 
 and shall l>e appointed by selection by the 
 President from the officers of said corps." (See 
 sec. 5601, R. S.) 
 
 Rank of brigadier general restored.— 
 By act of March 3, 1899, section 18 (39 Stat., 
 1008 ), it was provided ' 'that from and after the 
 dale of the approval of this Act the active list 
 of the line officers of the United States Marine 
 Corps shall consist of one brigadier general 
 commandant * * *. " 
 
 Rank of major general created. — By 
 
 act of July 1, 1902 (32 Stat., 686), the com'- 
 mandant was given the rank of major general 
 during the ser\-ice of the then incumbent; by 
 act of May 13, 1908 (35 Stat., 155), there was 
 authorized "one major general commandant, 
 in lieu of the present brigadier general com- 
 mandant;" and by act of December 19, 1913 
 (38 Stat., 241), which fixed the commandant's 
 term of office at four years, it was provided 
 that the appointee should be an officer of the 
 active list not below the grade of field officer 
 who, while serving as commandant, should 
 have the rank of major general and be carried 
 as an additional number in his grade and after 
 his return to duty in his gi'ade until said grade 
 is reduced to the number authorized by law. 
 By act of August 29, 1916 (39 Stat., 609), it was 
 provided that appointments thereafter made 
 to ' 'the position of major general commandant," 
 shall be from officers of the active list of the 
 Marine Corps not below the i-ank of colonel, 
 and that ' 'in determining the officers with rank 
 senior to colonel there shall be included the 
 officer serving as major general commandant. " 
 The act of July 1, 1918 (40 Stat., 715), which 
 created the pennanent grade of major general 
 in the Marine Corps, authorized the appoint- 
 
 928 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1602. 
 
 ment to that grade of one major general, "who 
 shall at all times be junior in rank to the 
 Major General Commandant, and also one 
 temporary major general in the Marine Corps, 
 who shall at all times be junior to the per- 
 manent major general." 
 
 Rank on retirement.^ — The Major General 
 Commandant, if retired fi-om that position in 
 accordance ^\^th sections 1251, 1G22, and 1623, 
 Revised Statutes (physical disability incident 
 to the ser^dce), or by reason of age or length of 
 service, shall have the rank and retired pay of 
 major general; if retired for any other reason, 
 he shall be placed on the retired list of officers 
 of the gi'ade to which he belonged at the time of 
 his retirement. (Act Dec.l9, 1913, 38 Stat. ,241.) 
 
 Active duty after retirement. — -After a 
 Commandant of the Marine Corps is placed 
 upon the retired list of officers of that corps on 
 account of age, he can not legally be retained 
 in his former office of Commandant until his 
 successor is appointed. The general statute 
 authorizing the detail of retired ofhcers to 
 active duty did not modify the special provd- 
 sion of law that the Commandant shall be ap- 
 pointed from officers of the active list, which 
 applies to all appointments, whether regular 
 or for a limited time. (28 Op. Atty. Gen., 486; 
 see also note to see. 1622, R. S.) 
 
 Filling of temporary vacancy. — An officer 
 on the active list of the Marine Corps can not 
 be temporarily detailed to fill a vacancy created 
 by the retirement of the Commandant, with 
 authority to transact official business and sign 
 orders and correspondence as "Acting ("om- 
 mandant, U. S. Marine Corps." (28 Op. Attv. 
 Gen., 486.) 
 
 During a vacancy caused by the retirement of 
 a Commandant of the Marine Corps, the orders 
 and correspondence connected with his office 
 should be signed by the Secretary of the Navy 
 or by the Acting Secretary of the Na\'^% in per- 
 son. (28 Op. Atty. Gen., 486.) 
 
 For other cases, see notes to sections 177-182, 
 Revised Statutes. 
 
 Commandant's status as additional 
 number. — Under the act of August 29, 1916, 
 
 Sec. 1602. [Staff rank. Superseded.] 
 
 This section provided as follows: 
 
 "Sec. 1602. The adjutant and inspector, 
 the pa>Tnaster, and the quartermaster shall 
 have the rank of major; [the] [each] assistant 
 quartermaster shall have the rank of captain. ' ' — • 
 (2 Mar., 1847, c. 40, s. 3, v. 9, p. 154. 27 Feb., 
 1877, c. 69, V. 19, p. 244.) 
 
 It was amended by act of February 27, 1877 
 (Id Stat., 244), which substituted the word 
 "each" for "the," as indicated in the above 
 reproduction of this section as it appeared in 
 the second edition of the Revised Statutes. 
 
 It was superseded by the Navy personnel 
 act of March 3, 1899, section 22 (.30 Stat., 1009), 
 which provided, in part, that "the staff of the 
 Marine Corps shall consist of one adjutant and 
 inspector, one quartermaster and one pay- 
 master, each with the rank of colonel; one 
 assistant adjutant and inspector, two assistant 
 quartermasters and one assistant paymaster, 
 each with the rank of major: and three as- 
 sistant quarteimasters with the rank of captain. ' ' 
 
 officers of the Marine Corps carried as additional 
 nimibers in grade will, if promoted to the grade 
 of brigadier general, immediately become reg- 
 ular numbers in the latter grade, and will con- 
 tinue to be caiTied as regular numbers therein, 
 unless, by operation of some other law appli- 
 cable to a specific case, the status of such an 
 officer should revert to that of an additional 
 number in grade. The act of December 19, 
 1913, relating to the Major General Comman- 
 dant is an exception to the general provisions 
 contained in the act of August 29, 1916, and a 
 Major General Commandant whose peiTtianent 
 grade is that of colonel would continue to be 
 an additional number if promoted to the giade 
 of brigadier general. (File 28687-1, Aug. 18, 
 1916.) 
 
 Rank from which commandant appoint- 
 ed. — Should a vacancy occur in the position 
 of Major General Commandant, the President 
 would be authorized to appoint any officer of 
 the rank of colonel or brigadier general to fill 
 such vacancy. Such officer would, by virtue of 
 the act of December 19, 1913, immediately 
 become an additional number in his grade. 
 Should the number of officers senior to colonel 
 be full, the President would not thereby be 
 restricted to the selection of a brigadier general 
 to fill the vacancy, but would have discretion 
 to appoint a colonel whom he might consider 
 better fitted for the office. The act of August 
 29, 1916, deals only with the apportionment of 
 regular number officers, and allows more than 
 the authorized percentage of officers senior to 
 colonel, when such a result is made necessary by 
 the appointment of a colonel to fill a vacancy 
 in the position of Major General Commandant 
 as specifically authorized by the same act, not- 
 withstanding the provision therein that *in 
 determining the officers with rank senior to 
 colonel there shall be included the officer serv- 
 ing as major general commandant," which has 
 the effect of making the Major General Comman- 
 dant one of the authorized number of officers 
 above the rank of colonel. (File 28687-1, 
 Aug. 18, 1916.) 
 
 By act of August 29, 1916 (39 Stat.» 
 609), it was provided "that the officers serving 
 in the senior grade of the Adjutant and In- 
 spector's, Quartermaster's, and Paymaster's 
 Departments shall, while serving therein, 
 have the rank, pay, and allowances of a brig- 
 adier general: And provided further, That for 
 the purpose of determining the numlDcr of offi- 
 cers in the various ranks as herein provided 
 [see note to sec, 1596, R. S.j such staff ofScers 
 shall be counted as being of the rank of Colonel : 
 And provided further, That officers holding 
 permanent appointments in the staff depart- 
 ments shall not be eligible for appointments 
 to the gi'ade of brigadier general of the line as 
 hereinbefore provided." 
 
 See note to section 1598, Revised Statutes, 
 for other provisions of said act of August 29, 
 1916, relating to the rank of officers from whom 
 appointments shall be made to the upper 
 grades of the staff departments, their tenure 
 of office, etc. 
 
 929 
 
Sec. 1603. 
 
 PI. 2. REVISED STATUTES. 
 
 The Navy. 
 
 Sec. 1603. [Relative rank with the Army.] The officers of the Marine Corps 
 shall be, in relation to rank, on the same footing as officers of similar grades in 
 
 V. 4, p. 713.) 
 
 the Army.— (30 June, 1834, c. 132, s, 4 
 
 Army and Navy oflicers; relative rank of: 
 See section i46(), Revised Statutes. 
 
 Brigadier generals and rear admirals of the 
 "lower lialf; relative rank of: See note to 
 section 146G, Revised Statutes. 
 
 Command when different corps or cojnmands 
 happen to join or do duty together: See 
 note to section 1342, Revised Statutes, 
 under articles 119 ancl 120 of the Articles 
 of War, and note to section 1621, Revised 
 Statutes. 
 
 Command of joint forces of the Army and Navy: 
 See note to section 14()(), Revised Statutes. 
 
 Command of ^Q,\y yards or \essels: See section 
 1617, Re'vised ' Statutes. 
 
 In the absence of special assigmnent by the 
 President, officers of the same gi'ade shall 
 rank and have precedence in the following 
 order, without regard to date of rank or 
 commission as between officers of different 
 classes, namely: First, officers of the Reg- 
 ular Army and oflicers of the Marine 
 Corps detached for service with the Army 
 by order of the President; second, officers 
 of forces drafted into the military ser\ice 
 of the United States. (Joint Res. 23, 
 July 1, 1916, sec. 4, 39 Stat., 340.) 
 
 "In deternuning relative rank and increase of 
 pay for length of service * * * active duty 
 performed while under appointment from 
 the United States Government, whether 
 in the Regular, provisional, or temporary 
 forces, shall be credited to the same extent 
 as 8er\dce under a Regular Army commis- 
 sion." (Act June 4, 1920, sec. 51, 41 Stat., 
 785, amending act June 3, 1916, sec. 127, 
 39 Stat., 217.) 
 
 Precedence between officers of the Marine 
 Corps and line officers of the Navy, and 
 between officers of the Marine Corps and 
 staff officers of the Navy: See note to sec- 
 tion 1466, Revised Statutes. 
 
 Precedence of Naval Academy graduates com- 
 missioned in the line of the Navy and in 
 the Marine Corps: See note to section 1483, 
 Revised Statutes. 
 
 "Unless special assignment is made by the 
 President under the provisions of the one 
 hundred and nineteenth article of war, all 
 officers in the active 8er\ace of the United 
 States in any grade shall take rank accord- 
 ing to date, which, in the case of an officer 
 of the Re.gular Army, is that stated in his 
 conmiission or letter of appointment, and, 
 in the case of a reserve officer or an officer 
 of the National Guard called into the 
 8er\'ice of the United States, shall precede 
 that on which he is placed on active duty by 
 a period equal to the total length of active 
 service which he may have performed in 
 the grade in which called or any higher 
 grade. ^Tien dates of rank are the same, 
 precedence shall determined by length of 
 active commissioned service in the Army. 
 WTien length of such ser^'ice is the same, 
 officers of the Regular Army shall take 
 rank among themselves according to their 
 
 places on the promotion list, preceding 
 reserve and National Guard officers of the 
 same date of rank and length of service, 
 who shall take rank among themselves 
 according to age." (Act June 4, 1920, 
 sec. 51, 41 Stat., 785, amending act June 
 3, 1916, sec. 127, 39 Stat., 217.) 
 "Senior in rank," construed. — An officer 
 in one branch of the service can not with accu- 
 racy be called senior in rank to an officer of an- 
 other branch. A major in the Army is no more 
 senior to a captain of marines than he is to a 
 captain in the Navy. The term in its military 
 sense is applicable only to relatively higher 
 grades of the same service. Its use otherwise 
 would create confusion. (10 Op. Atty. Gen., 
 116. See also sec. 1623, R. S.) 
 
 Oflicers having same date of "appoint- 
 ment." — Section 1219, Revised Statutes, pro- 
 vides that "in fixing relative rank between offi- 
 cers of the same grade and date of appointment 
 and commission, the time each may have actu- 
 ally served as a commissioned officer of the 
 United States, whether continuously or at dif- 
 ferent periods, shall be taken into account," 
 etc. Held, that the word "appointment" as 
 used in this section comprehends only the ap- 
 pointment of an officer on his original entry 
 into the regular ser\'ice, and does not include 
 his appointment on promotion thereafter made. 
 (23 Op. Atty. Gen., 155, affirming 17 Op. Atty. 
 Gen., 196, and 17 Op. Atty. Gen., 362. See also 
 cases noted below, and note to sec. 1458, R. S.) 
 Ofl3.cers having same date of raiik. — -Un- 
 der the act of March 3, 1899 (30 Stat., 1004), re- 
 organizing the personnel of the Navy and Ma- 
 rine Corps, Charles H. Lauchheimer, a captain 
 of the line in the Marine Corps, was upon the 
 date of the passage of that act, appointed and 
 commissioned, by selection, as adjutant and 
 inspector with the rank of major, and on March 
 11 foUomng, took the oath of office. On ^larch 
 23, 1899, Cliarles H. McCawley, a captain and 
 assistant quartermaster in the Marine Corps, 
 was promoted by seniority to assistant quarter- 
 master with the rank of major, to date from 
 March 3, and took the oath of office on March 30. 
 The question of the relative rank of these offi- 
 cers being presented for determination, held: 
 (1) That the advancement of an officer to a 
 higher grade, one to which he could not then 
 succeed in due course by seniority, while called 
 an appointment, is, in fact and effect, a promo- 
 tion. Maj. Lauchheimer's advancement should, 
 therefore, be taken as a promotion, and there 
 is nothing in this regard to affect the relative 
 rank of the two officers. (2) That as Maj. 
 hauchheimer's commission and induction into 
 office each antedate by several days that of 
 Maj. McCawley 's, during that period the former 
 ranked the latter. This rank was not lost nor a 
 superior one conferred by the subsequent pro- 
 motion of Maj. McCawley. (3) As both officers 
 were in fact promoted, the earlier commission 
 and rank of Maj. Lauchheimer entitle him to 
 
 Srecedence in rank. (4) The Secretary of the 
 avy, by virtue of his general power under the 
 
 930 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1604. 
 
 President to make rules and regulations for the 
 government of the Navy, may determine with 
 the force and effect of law the relative rank of 
 officers of the Marine Corps. Usually this is 
 better done by general rules than by decisions 
 in particular cases, but it may be done either 
 way. (23 Op. Atty. Gen., 155.) 
 
 Section 1219, Revised Statutes, has no appli- 
 cation to the cases of Lauchheimer and McCaw- 
 ley ,exceptas it recognizes the general rule which 
 has regard for previous service. According to 
 the preference given throughout the statutes 
 and by the rules and practice of the War and 
 Navy Departments to seniority of service, the 
 longer service of Maj. Lauchheimer would, other 
 things being equal, give him precedence in 
 rank. (23 Op. Atty. Gen., 1.55.) 
 
 Precedence not disturbed by promo- 
 tion. — Until May 17, 1877, Col. Reid outranked 
 Col. Goodloe by seniority in commission. On 
 that date. Col. Goodloe was appointed major and 
 paymaster, and subsequently, on May 2, 1894, 
 Col. Reid was appointed major, adjutant and 
 inspector. Both of these last-named coimnis- 
 sions were appointments by selection at the 
 discretion of the appointing power, and were 
 not promotions under the statutes regulating 
 such promotions. Therefore, from May 17, 
 1877, Col. Goodloe outranked Col. Reid by 
 seniority of commission, and on IMarch 3, 1899, 
 under the act of that date (30 Stat., 1008), both 
 officers were promoted to the rank of colonel. 
 Held, that the mere promotion of the two officers 
 does not disturb their preexisting relative rank; 
 that the promotions of March 3, 1899, were not 
 "appointments" within the meaning of section 
 1219, Revised Statutes; and that therefore Col. 
 Goodloe continues to outrank Col. Reid. 
 (24 Op. Atty. Gen., 74, affirming 17 Op. Atty. 
 Gen., 196 and 362; see note above, under "Offi- 
 cers ha\'ing same date of appointment.'') 
 
 Ofl&cers of Marine Corps and officers of 
 Navy. — -By an unwritten law of the Army and 
 Navy, officers of the Army and officers of the 
 Navy take relative rank as respects the two 
 classes according to their respective grades; 
 and if of similar grade, then according to dates 
 of commission. Officers of the Marine Corps, 
 who are in relation to rank on the same footing 
 as officers of similar grades in the Army, take 
 rank and precedence relatively to line officers 
 in the Navy according to grade ; and if of similar 
 grade, then according to dates of commission. 
 (25 Op. Atty. Gen., 517.) 
 
 There is no law making any distinction as to 
 relative rank and precedence between the offi- 
 cers of the Marine Corps who are and those who 
 are not graduates of the Naval Academy, either 
 as respects themselves or officers of the line of 
 the Navy. (25 Op. Atty. Gen., 517; see also 
 sec. 1483, R. S., and note thereto.) 
 
 There is no statutory pro\dsion expressly 
 regulating the relative rank and precedence of 
 officers of the Marine Corps and officers of the 
 several staff corps of the Navy; but there are 
 
 pro\'isions which, with the long established 
 and settled usage and practice of the Army 
 and Navy, regulate it with the same certainty 
 as if by enactment in terms. (26 Op. Atty. 
 Gen., 16.) 
 
 Whatever will be the relative rank and its 
 resulting precedence of an officer of the Army 
 to either line or staff officers of the Navy, that 
 would also be the relative rank as to them of 
 officers of the Marine Corps. (26 Op. Atty. 
 Gen., 16.) 
 
 The Secertary of the Navy is without au- 
 thority to make such a change in article 23 of the 
 Navy Regulations, 1909, as to fix the relative 
 rank of officers of the Marine Corps with officers 
 of the Navy according to length of service, 
 rather than by date of commission. (29 Op. 
 Atty. Gen., 264.) 
 
 Officers of Army, Navy, and Marine 
 Corps. — -Paragraph 3 of article 25 of the Navy 
 Regulations, 1909, may be amended in form so 
 as to read: "When officers of the Army are 
 associated jointly with officers of the Nav^y or 
 Marine Corps, their corresponding rank shall 
 be determined according to the dates of their 
 respective commissions, when of the same or 
 coiTesponding gi-ades; and when of different 
 rank, as set forth in the first paragi'aph of this 
 article." (29 Op. Atty. Gen., 264. Compare 
 sees. 1485 and 1486, R. S., and notes thereto, 
 as to precedence of line and staff officers of the 
 Navy according to length of service.) 
 
 Officers of "Marine Corps. — The relation 
 as to rank which officers of the Marine Corps 
 hold to other officers is prescribed by section 
 1603, Revised Statutes, and could not be 
 changed by any act of the President. What- 
 ever relation as to rank one Army officer may 
 hold as to another officer, that is the relation 
 which an officer of the Marine Corps of similar 
 gi-ade holds. Accordingly, the Navy De- 
 partment would not have the authority, with 
 the approval of the President, to amend the 
 Navy Regulations so as to do away with the 
 practice as to relative rank of officers of the 
 Marine Corps and line officers of the Navy, 
 established in accordance with 25 Op. Atty. 
 Gen., 517. (26 Op. Atty. Gen., 16.) 
 
 Date of rank on promotion. — Officers of 
 the Marine Corps on promotion should ordi- 
 narily be given rank from the date of the 
 vacancy to which promoted; in no case, how- 
 ever, will an officer permanently or tempo- 
 rarily promoted be given rank fi'om a date 
 earlier than his date of rank in the lower grade. 
 Vacancies resulting from the President's 
 order of March 26, 1917, increasing the au- 
 thorized number of enlisted men in the Marine 
 Corps, were created on the date of said order, 
 and vacancies resulting from the temporary 
 increase in the number of enlisted men au- 
 thorized by the act of May 22, 1917, were cre- 
 ated on the date of the act. (File 28687-5:1, 
 Sept. 7, 1917.) 
 
 Sec. 1604. [Brevets.] Commissions by brevet may be conferred upon 
 commissioned officers of the Marine Corps in the same cases, upon the same 
 conditions, and in the same manner as are or may be provided by law for 
 officers of the Army.— (6 July, 1812, c. 137, s. 4, v. 2, p. 785. 16 April, 1814, c. 
 
 931 
 
Sec. 1604. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 58, s. 3, V. 3, p. 124. 16 April, 1818, c. 64, s. 2, v. 3, p. 427. 30 June, 1834, c. 
 132, s. 9, V. 4, p. 713. 1 Mar., 1869, c. 52, s. 2, v. 15, p. 281. 3 Mar., 1869, 
 c. 124, s. 7, V. 15, p. 318. 15 July, 1870, c. 294, s. 16, v. 16, p. 319.) 
 
 Brevet commissions may be conferred by the 
 President, by and \\'ith the advice and con- 
 sent of tlie" Senate, upon commissioned 
 officers of the Army, in time of war, for 
 distinguished conduct and public ser\-ice 
 in presence of the enemy. (Sec. 1209, 
 U.S.) 
 Bre%et commissions shall bear date from the 
 particular action or service for which the 
 oflicers were brevetted. (Sec. 1210, 11. S. i 
 Brevet rank shall be considered strictly hon- 
 orary, and shall confer no pri\alege of 
 precedence or command not already pro- 
 vided for in the statutes which embody the 
 rules and articles go\eming the Army of 
 the United States. (Act Feb. 27, 1890, 
 section 3, 26 Stat., 14.) 
 No officer shall he entitled on account of having 
 been brevetted to wear wliile on duty any 
 uniform other than that of his actual rank; 
 and no officer shall he addressed in orders 
 or official communications Ijy any title 
 other than that of his actual rank. (Sec. 
 1212,11. S.) 
 Officers may be assigned to duty or command 
 according to their brevet rank, by special 
 assignment of the President; and brevet 
 rank shall not entitle an officer to preced- 
 ence or command except when so as- 
 signed. (Sec. 1211, R. S.) 
 Officers of the Army shall only be assigned to 
 dut y or command according to their brevet 
 rank when actually engaged in hostilities. 
 (Act Mar. 3, 1883, 22 Stat., 4.57. i 
 Rank of brevet major abolished. — ■' 'There 
 is no act of Congi-ess now in force [Apr. 22, 1820] 
 which recognizes any such office as that of 
 brevet major of marines;" the President can 
 not confer that rank under the act of April 16, 
 1814. (1 Op. Atty. Gen., 3.52.) 
 
 The act of March 3, 1817, fixing the peace 
 establishment of the ^larine Corps, not having 
 retained any majors in serxice, the brevets 
 theretofore conferred were thereby made to 
 cease with the termination of the lineal rank 
 of majors by commission. (1 Op. Atty. Gen., 
 489.) 
 
 ' 'The act of 1814 was predicated on a state of 
 things which no longer exists. We were then at 
 war, and the commissioned rank of major then 
 existed; the design of that act was to augment 
 that corps, and to stimulate it to deeds of arms. 
 We are now at peace; the corps has been re- 
 duced and adapted to the state of peace; the 
 grade of major exists no longer, even though 
 it had been conferred by commLssion, much 
 less when conferred by brevet; and ^v■ith the 
 grade falls the claim to pay. There is no 
 breach of contract in this." (1 Op. Atty. Gen., 
 489, 490. ) 
 
 Captains brevetted as Ueutenant 
 colonels. — Congress having, by the act of 
 April 16, 1814, authorized the President to 
 confer brevet rank, and having, by the act of 
 March 3, 1817, fixing the peace establishment 
 of the Marine Corps, abolished the rank of 
 
 major, held that the President is authorized to 
 issue to a captain of the Marine Corps the 
 brevet rank of lieutenant colonel. This ■v^'ill 
 not operate to give the officer an advance of 
 two steps instead of one. In the present 
 organization of the Marine Corps there is but 
 one step from the post of captain to that of 
 lieutenant colonel, the former intermediate 
 step of major haA-ing been abolished. (1 Op. 
 Atty. Gen., 578.) 
 
 Questions of duty and command are 
 military questions. — Under the law al- 
 lo\ving officers of the Marine Corps their brevet 
 pay and emoluments when on duty ha\ing a 
 command according to their brevet rank, the 
 question when and under what circiimstances 
 an officer is properly to be regarded as "on 
 duty, and ha\dng a command according to his 
 brevet rank," is a military question, strictly 
 and technically a military question, properly 
 determinable by the Department of the Navy 
 or of War as it may arise in one or the other. 
 Congress not having defined what shall con- 
 stitute the fact of ' ' having a command accord- 
 ing to brevet rank," has left it as a military 
 fact or question to be settled by the military 
 authorities of the Government. (5 Op. Atty. 
 Gen., 513.) 
 
 Laws on military subjects seldom fall -ndthin 
 the sphere of a lawyer's practice or considera- 
 tion, and he is consequently ^vithout that key 
 of experience in the subject matter which is 
 so essential to their just construction. The 
 origin and nature of brevet rank — for example, 
 the cases in which it is conferred, and the 
 effects which it produces — are purely ques- 
 tions of military experience, Avith regard to 
 which we have no wiitten laws; and all ques- 
 tions in relation to that rank must be, of neces- 
 sity, beyond the province of the mere jurist. 
 Accordingly, suggested that the President 
 would be much more safe in resting on the 
 opinion of military men upon such a question 
 than upon that of the Attorney General. 
 (1 Op. Atty. Gen., 578, 579.) 
 
 Brevet pay and emoliiments. — Brevet 
 majors of the Marine Corps are entitled to the 
 same pay and emoluments which are allowed 
 to officers of similar grades in the infantry of 
 the Army. (5 Op. Atty. Gen., 513.) 
 
 WTiatever may have been a different prac- 
 tice, brevet officers of the Marine Corps have 
 always been by law upon the same footing with 
 other officers of the military establishment of 
 the United States in respect to the circum- 
 stances which entitle them to pay and emolu- 
 ments. (U. S. V. Freeman, 3 How., 556.) 
 
 Brevet pay and emoluments were given to 
 officers of the Array by an act of July 6, 1812, 
 section 4, and to the Marine Corps by act of 
 April 16, 1814, section 3, which was substan- 
 tially identical with the Army act. By act of 
 April 16, 1818, it was provided that "the 
 officers of the Army who have brevet com- 
 missions shall be entitled to, and receive, the 
 pay and emoluments of their brevet rank 
 
 932 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1607. 
 
 when on duty and having a command accord- 
 ing to their brevet rank, and at no other time. " 
 Held, that said act of 1818, although in terms 
 applicable only to officers of the Army, oper- 
 ated to repeal the enactment of 1814 providing 
 brevet pay for the Marine Corps as well as that 
 of 1812 relating to brevet pay in the Army. 
 (U. S. T. Freeman, 3 How., 556.) 
 
 It can not be denied that the Marine Corps 
 is an addition to the military establishment of 
 the United States. It is declared to be so in 
 the act by which it was organized. Though 
 neither that fact nor the words "military 
 establishment" as they are used in the acts of 
 Congress will of themselves authorize the 
 inclusion of officers of the Marine Corps within 
 the words "officers of the Army, " nevertheless, 
 considering the subject matter of the act of 
 1818, the application of the second section of 
 that act to all brevetted officers, and the as- 
 similation of the Marine Corps by the act of 
 1814 to the Army, giving to its officers brevet 
 commissions and pay in exactly the same way 
 as they were given to the officers of the Army 
 by the act of 1812, held that Congress intended 
 by the act of 1818 to place the officers of the 
 Marine Corps and the officers of the Army upon 
 the same footing in respect to brevet pay and 
 emoluments. (U. S. v. Freeman, 3 How., 
 556.) 
 
 The words, "officers of the Army," in the 
 act of 1818, though descriptive of a particular 
 
 Sec. 1605. [Advancement in number.] Any officer of the Marine Corps 
 may, by and with the advice and consent of the Senate, be advanced not 
 exceeding tliirty numbers in rank, for eminent and conspicuous conduct in 
 battle or extraordinary heroism. — (21 Apr., 1864, c. 63, s. 6, v. 13, p. 54. 24 Jan., 
 1865, c. 19, s. 1, V. 13, p. 424.) 
 
 class, were intended, as shown by their con- 
 nection with the subject matter of the act, to 
 comprehend all officers of the military estab- 
 lishment of the United States who, when the 
 act was passed, were only under like circum- 
 stances entitled to brevet pay and emoluments. 
 (U. S. V. Freeman, 3 How., 556.) 
 
 T\'Tiere a captain in the Marine Corps acts as 
 brevet lieutenant colonel, and is paid as such, 
 he can not, duiing the same period, receive 
 either the pay or allowances attached to the 
 duties of captain. (U. S. v. Freeman, 25 Fed. 
 Cas. No. 15163.) 
 
 Brevet officers of the Marine Corps were 
 included under the Army Regulations of 
 March 1, 1825, and also in the regulation upon 
 the subject of brevet pay sanctioned by the 
 President December 1, 1836, and could claim 
 brevet pay and emoluments under the Army 
 Regulations of 1841 . This right to brevet pay 
 results from the Marine Corps having been 
 subjected by the act of 1798 and by other acts of 
 Congress to the same rules and articles of war 
 "as are prescribed for the military establish- 
 ment of the United States," and from the 
 exception in section 2 of the act of June 30, 
 1834, taking them out of the regulations which 
 might be established for the Navy, when 
 detached for service with the Army by order 
 of the President of the United States. (U. S. 
 V. Freeman, 3 How., 556.) 
 
 carried as an additional number in the 
 grade or with the rank of colonel shall be 
 held to fill a vacancy in the grade of briga- 
 dier general. 
 
 See note to section 1597, Revised Statutes; and 
 see, generally, note to section 1506, Re- 
 vised Statutes. 
 
 See notes to section 1407, Revised Statutes, as 
 to medals of honor, etc. 
 
 By sections 1506-1508, Revised Statutes, pro- 
 vision is made for the Navy similar to sec- 
 tions 1605-1607, relating to the Marine 
 Corps; bv acts of March 3, 1901 (31 Stat., 
 1108), and June 16, 1906 (34 Stat., 296), 
 officers so advanced are to be carried as 
 additional to the numbers of each grade in 
 which they serve; by act of August 29, 
 1916 (39 Stat., 608), the promotion to the 
 grade of brigadier general of any officer 
 
 Sec. 1606. [Promotion when grade is full.] Ajiy officer who is nominated 
 to a higher grade by the provisions of the preceding section shall be promoted, 
 notwithstanding the number of said grade may be full, but no further promo- 
 tion shall take place in that grade, except for like cause, until the number is 
 reduced to that provided by law. — (24 Jan., 1865, c. 19, s. 2, v. 13, p. 424.) 
 
 See section 1605, Revised Statutes, and references thereunder. 
 
 Sec. 1607. [Promotion for gallantry.] Any officer of the IVIarine Corps 
 may, by and with the advice and consent of the Senate, be advanced one grade, 
 if, upon recommendation of the President by name, he receives the thanks of 
 Congress for highly distinguished conduct in conflict vnih. the enemy, or for 
 extraordinary heroism in the line of his profession. — (16 July, 1862, c. 183, s. 
 9, V. 12, p. 584. 24 Jan., 1865, c. 19, s. 2, v. 13, p. 424.) 
 
 See section 1605, Revised Statutes, and references thereunder. 
 
 933 
 
Sec. 1608. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Sec. 1608. [Enlistment. Superseded.] 
 
 This section provided as follows: 
 
 "Sec. IGOS. EnlistinentdintotheMarineCorps 
 shall be for a period not less tlian five years. "^ 
 (11 July, 1870, Ho3. 106, v. 10, p. 387.) 
 
 It was superseded by act of March 3, 1901 
 (31 Stat., 1132), which provided "that here- 
 after the enlistments into the Marine Corps 
 shall be for a period of not less than four years." 
 
 By act of June 4, 1920, section 7 (41 Stat., 
 836 1, it is pro\ided that hereafter enlistments 
 in the Navy or Marine Corps may be for terms 
 of two, three, or four years, and all laws now 
 applicable to four years enlistments shall 
 apply, under such regulations as may be 
 prescribed by the Secretary of the Navy to 
 enlistments for a shorter period, with proportion- 
 ate benefits upon discharge and reenlistment. 
 
 Absence to be made good. — By act of 
 August 29, 1916 (39 Stat., 580), as amended 
 by act of July 1, 1918 (40 Stat., 717), it was 
 provided that no enlistment in the Navy or 
 Marine Corps shall be regarded as complete 
 until the enlisted man has made good all time 
 lost on account of injury, sickness, or disease 
 resulting from his own misconduct. (See note 
 to sec. 1624 R. S.. art. 8.) 
 
 Detention after expiration of enlist- 
 ment. — See note to section 1422, Revised 
 Statutes. 
 
 Transfers from the Hospital Corps to 
 the Marine Corps, and transfers of the marines 
 to the Hospital Corps, are authorized by act 
 of August 29, 1916 (39 Stat., 572). See note to 
 section 1421, Rex'ised Statutes. 
 
 Transfers from Army to Marine Corps. — 
 See section 1421, Revised Statutes. 
 
 Minority enlistments in the Marine 
 Corps are governed by section 1418, Revised 
 Statutes, relating to the Navy. (See note to 
 that section, under "Minority enlistments 
 in Marine Corps governed by Navy laws," 
 and note to sec. 761, R. S., uncier "Disposition 
 of party claiming discharge from Marine Corps 
 on ground of fi-audulent enlistment.") 
 
 Qualifications for enlistment in the Navy 
 are prescribed by sections 1418-1420, Re\ised 
 Statutes, which apply to the Marine Corps, ex- 
 cept as otherwise specifically provided. (See 
 notes to said sections.") 
 
 Extension of enhstments in the Marine 
 Corps. — See note to section 1418, Re\'ised 
 Statutes. See also act of April 25, 1917 (40 
 Stat., 38), expressly authorizing extension of 
 minority enlistments in the Marine Corps. 
 
 Naturalization of aliens serving in the 
 Marine Corps is provided for by act of May 
 9, 1918 (40 Stat., 542). Naturalization of 
 aliens serving in the Marine Corps Reserve is 
 authorized by act of Mar 22, 1917 (40 Stat., 84), 
 made applicable to the Marine Corps Reserve 
 by act of August 29, 1916 (39 Stat., 593). 
 
 As to enlistment of aliens in the Marine Corps, 
 see note to section 1420, Revised Statutes, under 
 "Aliens not to be enlisted." 
 
 For decisions relating to enhstments 
 in the Navy and Marine Corps, see generally 
 notes to sections 1418-1422, Revised Statutes. 
 
 Advertising for recruits. — By act of 
 July 1, 1918 (40 Stat., 736), under "Trans- 
 portation and recruiting, Marine Corps," it 
 
 was provided "that hereafter authority is 
 hereby granted to employ the services of 
 adv'ertising agencies in advertising for recruits 
 under such terms and conditions as are most 
 advantageous to the Government." 
 
 Enlistment of women. — By act of Julv 
 11, 1919 (41 Stat., 152), it was provided "that 
 the words 'enlisted men,' as contained in prior 
 appropriation Acts, shall not be construed to 
 deprive women, enlisted or enrolled in the 
 naval service, of the pay, allowances, gratui- 
 ties, and other benefits gi-anted by law to the 
 enlisted personnel of the Navy and Marine 
 Corps." 
 
 Status of appHcants for enhstment. — 
 See note to section 1418, Revised Statutes, 
 under "\\Tien enlistment complete"; see also 
 note to section 1609, Revised Statutes. 
 
 Discharge prior to expiration of enhst- 
 ment.— The act of March 3, 1809, directed 
 enlistments in the Marine Corps to be for five 
 years, unless sooner discharged; but did not 
 provide by whom such discharges should be 
 granted. Held, that the commandant of the 
 Marine Corps can not legally grant discharges 
 to marines before the expiration of their term 
 of enlistment; but that such discharges can 
 only be granted by the President of the United 
 States or in conformity to such regulations as 
 he may think proper to prescribe. (2 Op. 
 Atty. Gen., 353.) 
 
 The authority to rescind a contract between 
 the United States and the individual, which 
 is the effect of a discharge from the Marine 
 Corps prior to expiration of enlistment, is a 
 power which can exist only by viiiue of an 
 •express grant. Under the Army law (held 
 applicable in this case to the Marine Corps) 
 the major general commanding the Army of 
 the United States can not grant a discharge; 
 accordingly held that it is not competent for the 
 commandant of the Marine Corps to gi-ant 
 discharges to marines before the expiration of 
 their enlistment, and that, until Congress shall 
 othervnse provide, such discharges can only 
 be granted by the President or in conformity 
 to such regulations as he may think proper to 
 prescribe. (2 Op. Atty. Gen., 353.) 
 
 A private in the Marine Corps of the United 
 States, discharged from the service as a person 
 of bad character and unfit for service, by order 
 of the Secretary of the Navy thi'ough the com- 
 mandant of the cor]:>s, without court-martial or 
 other competent military proceeding, forfeits 
 thereby his retained pay under the provisions 
 of section 1281, Revised Statutes; but he may 
 claim and recover his transportation and sub- 
 sistence from the place of his discharge to the 
 place of his enlistment, enrollment, or original 
 muster into the service, under the provisions 
 of section 1290, Revised Statutes. (U. S. v. 
 Kingsley, 138 U.S., 87, reversing 24 Ct. Cls., 219.) 
 
 A discharge issued for unfitness for service 
 and general bad character, without trial by 
 court-martial, can not be considered as "a 
 punishment for an offense" within the mean- 
 ing of section 1290, Revised Statutes; the 
 question whether such punishment must neces- 
 sarily be awarded by the judgment of a court- 
 martial, not presented in this case and no 
 
 934 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1610. 
 
 opinion expressed on it. (U. S. v. Kingsley, 
 138U. S.,87.) 
 
 By his enlistment the soldier contracts for 
 honest and faithful service, and the rendition 
 of such ser\dce is a condition precedent to his 
 right to recover his retained pay. The fact 
 that he has not rendered such service may be 
 shown as well by his military record as by the 
 judgment of a coiu-t-martial. (U. S. v. Kings- 
 ley, 138 U. S., 87, reversing 24 Ct. Cls., 219.) 
 
 "Reenlistment" construed. — An enlist- 
 ment in the Marine Corps after an honorable 
 discharge from the Army or Navy is not a 
 
 "reenlistment" within the meaning of section 
 7 of the act of June 4, 1920 (41 Stat., 836). The 
 term "reenlistment" as therein used signifies 
 an entry into the same branch of the service 
 from which honorably discharged. (27 Comp. 
 Dec, 170.) 
 
 A soldier honorably discharged from the 
 Army who enlists in the Marine Corps is en- 
 titled, under section 1612, Revised Statutes, 
 to the same additional pay that he would be 
 entitled to if his reenlistment had been in the 
 Army. (Walton v. U. S., 31 Ct. Cls., 196, con- 
 struing sec. 1284, R. S.) 
 
 Sec. 1609. [Oath.] The officers and enlisted men of the Marine Corps shall 
 take the same oaths, respectively, which are provided by law for the officers 
 and enlisted men of the Army. — (11 July, 1798, c. 72, s. 4, v. 1, p. 595.) 
 
 By act of March 3, 1899, section 25 -(30 Stat., 
 1009), it was provided that "the oath of 
 allegiance now provided for the officers 
 and men of the Army and Marine Corps 
 shall be achninistered hereafter to the 
 officers and men of the Navy." 
 
 The oath of allegiance provided by the Revised 
 Statutes for enlisted men of the Army was 
 contained in section 1342, Revised Stat- 
 utes, article 2, quoted under section 1418, 
 Revised Statutes. 
 
 The oath of allegiance now provided by law for 
 enlisted men of the Army is contained in 
 article 109 of the Articles of War, as em- 
 bodied in act of June 4, 1920 (41 Stat., 
 809), as follows: "At the time of his en- 
 listment every soldier shall take the follow- 
 ing oath or affirmation : ' I , , do sol- 
 emnly swear (or affirm) that I will bear 
 true faith and allegiance to the United 
 States of America; that I will serve them 
 honestly and faithfully against all their 
 enemies whomsoever; and that I will obey 
 the orders of the President of the United 
 States and the orders of the officers ap- 
 pointed over me, according to the Rules 
 and Articles of War.' This oath or affirma- 
 tion may be taken before any officer." 
 
 The oath of office prescribed for persons in the 
 military service is set forth in Revised 
 Statutes, section 1757, as amended by act 
 of May 13, 1884, section 2 (23 Stat., 22). 
 
 The oath of office to be taken by enlisted men 
 of the Navy and Marine (Jorps designated 
 as Navy mail clerks or assistant Navy mail 
 clerks is that prescribed for employees of 
 the Postal Service. (See sees. 391 and 
 392, R. S., and note thereto, for form of 
 this oath.) 
 
 Men drafted into service.— The Articles 
 of War, requiring every soldier at the time of 
 his enlistment to take an oath of allegiance, 
 apply only to voluntary enlistment; and one 
 certified into the military service under the 
 selective draft act of May 18, 1917 (40 Stat., 
 76), can not escape Liability to military ser^'ice 
 because he had not taken the reqvured oath. 
 (Franke v. Murray, 248 Fed. Rep., 865.) _ 
 
 Applicants for enlistment. — ^Applicants 
 for enlistment who have been accepted pro- 
 visionally, but have yet to be subjected to the 
 first examination at the recruiting depots and 
 to take the oath before they become a part of 
 the soldiery of the Nation, are not "troops of 
 the United States" (as used in the land-grant 
 acts in relation to transportation for the Gov- 
 ernment). It is the actual enlistment, the 
 oath of allegiance, that changes the status from 
 a civilian to a soldier. The officers at the re- 
 cruiting stations are expressly forbidden by 
 Army Regulations to administer this oath. 
 Such applicant is then not even a potential 
 soldier; for he may be rejected on final examina- 
 tion. And it is the actual and not the potential 
 status that must govern. The fact that under 
 the Army Regulations he receives the same 
 rations as an enlisted man, and that he is sub- 
 ject to the same medical attention, does not 
 effect a change of status. And the fact that 
 the transportation is for the purposes of the 
 Government in connection with its military 
 establishment is immaterial. The Army ap- 
 propriation acts make specific provision for 
 the transportation of "troops" and of "re- 
 cruits." (U. S, V. Union Pac. R. Co., 249 
 U. S., 354, 359, affinning 52 Ct. Cls., 226.) 
 
 For other cases, see note to section 1418, 
 Revised Statutes, under "When enlistment 
 complete." 
 
 Sec. 1610. [Exemption from arrest.] Marines shall be exempt, while 
 enlisted in said service, from all personal arrest for debt or contract. — (11 July, 
 1798, c. 72, s. 5, v. 1, pp. 595, 596. 30 June, 1834, c. 132, s. 3, v. 4, p. 713.) 
 
 As to privilege from arrest in civil cases, see 
 note to Constitution, Article I, section 6, 
 clause 1. 
 
 As to jurisdiction of civil authorities over 
 persons in the military service, see notes 
 to Constitution, Article I, section 8, clauses 
 
 11, 13, and 14; and notes to sections 355, 
 417, and 753, Revised Statutes. 
 Officers of the Navy or Marine Corps, finally 
 sentenced by civil authorities to imprison- 
 ment in State or Federal penitentiary, may 
 be dropped from the rolls of the Navy or 
 
 936 
 
Sec. 1612. 
 
 l>t. J. REVISED STATUTES. 
 
 The Navy. 
 
 Marino Corps, and shall 1)0 inoligiblo for oxenipt from arrest. If public policy requires 
 
 reappointment. (Act Apr. 2, 1918, 40 the extension of this privilege to these ofiicers, 
 
 Stat., 501.) it is not to be doubted that Congress will so 
 
 Exemption limited to rnarines. — The direct in explicit tenns whenever their atten- 
 
 proper construction of the act of July 11, 1798, tion may be called to it. (3 Op. Atty. Gen., 
 
 section 5, relating to the Marine Corps, fails to 119.) 
 
 include mitl>hiiunen, who are, therefore, not 
 
 Sec. 1611. [Companies and detachments.] The Marine Corps may be 
 formed into as many companies or detachments as the President may direct, 
 with a proper distribution of the commissioned and non-conomissioned officers 
 and musicians to each company or detachment. — (11 July, 1798, c. 72, s. 1, 
 V. 1, p. 594.) 
 
 By act of August 29, 1916 (39 Stat., 586), it was 
 
 pro^■ided that summary courts-martial may 
 
 be ordered by the conunanding officer of 
 
 any "brigade, regiment, or separate or 
 
 detached battalion, or other separate or 
 
 detached command," etc., for the trial of 
 
 enlisted men in the naval seriace ; and that 
 
 when empowered by the Secretary of the 
 
 Na\n>', general courts-martial may be 
 
 convened by the commanding officer of 
 
 "a brigade or larger force of the naval 
 
 eer^-ice on shore beyond the continental 
 
 limits of the United States"; and in time 
 
 of war by the commanding ofUcer of "a 
 
 brigade or larger force of the Navy or 
 
 Marine Corps on shore not attached to a 
 
 navy yard or naval station," if so em- 
 powered by the Secretary of the Navy. 
 Organization into reg^iments and bri- 
 gades. — The organization of the Marine Corps 
 is sui generis, in that there is no provision of 
 law for its formation into regiments or bat- 
 talions, or the assignment of its officers to any 
 particular command. (Berrvman v. U. S., 43 
 Ct. (Is., 397.) 
 
 By order of the Major General Commandant 
 the ofiicers in charge of the marines at Cavite, 
 
 Sec. 1612. [Pay and allowances.] The officers of the Marine Corps sliall bo 
 entitled to receive the same pay and allowances, and the enhsted men shall be 
 entitled to receive the same pay and bounty for re-enlisting, as are or may be 
 pro^nded by or in pursuance of law for the officers and enlisted men of lilse 
 grades in the infantry of the Army. — (30 June, 1834, c. 132, s. 5, v. 4, p. 713. 
 1854, c. 268, s. 1, v. 10, p. 58G.) 
 
 P. I., were organized into the first brigade of 
 marines, composed of two regiments of two 
 battalions each. The order of the commandant 
 was presumably made by direction of the 
 President, pursuant to section 1611, Revised 
 Statutes, and the name of regiments given to 
 said liodies of marines did not change their 
 character, but they remained under the generic 
 term of "detachments" contained in section 
 1611. (Berryman v. U. S., 43 Ct. Cls., 397.) 
 
 The act of April 26, 1898, section 7 (30 Stat., 
 365), provided that "in time of war every officer 
 serving with troops operating against an 
 enemy who shall exercise, under assignment in 
 orders issued by competent authority, a com- 
 mand above that pertaining to his gi-ade, shall 
 be entitled to receive the pay and allowances 
 of the grade appropriate to the command so 
 exercised." A lieutenant colonel of the 
 Marine Corps was assigned to the command of 
 a so-called regiment. Held, that he was not an 
 officer having a command above that pertain- 
 ing to his grade, within the act of April 26, 
 1898, and was not entitled to the pay of a 
 colonel in the Marine Corps. (Ben-yman r. 
 U. S., 43 Ct. Cls., 397.) 
 
 5 Aug., 
 
 General note.— Many statutory enactments 
 subsequent to the lle\'ised Statutes relate 
 specifically to the pay and allowances of the 
 Marine Corps, and section 1612, Revised Stat- 
 utes, making the Marine Corps subject to 
 Army laws as to pay and allowances, is modi- 
 fied to the extent that Congress has thus other- 
 \\-i.se pro\ided. Such specific enactments re- 
 lating to the Marine Corps are set out separately 
 below. 
 
 By act of "May 18, 1920 (41 Stat., 601), tempo- 
 rarily increasing the pay and allawances of the 
 Army, Navy, Marine Corps, Coast Guard, 
 Coast and Geodetic Sui-vey, and Public Health 
 Service, it was provided (sec. 13, 41 Stat., 604) 
 that "a special committee, to be composed of 
 five Members of the Senate, to be appointed 
 by the Vice President, and five Members of 
 the House of Representatives, to be appointed 
 
 by the Speaker of the House of Representatives, 
 shall make an investigation and report recom- 
 mendations to their respective Houses not later 
 than the first Monday in January, 1922, relative 
 to the readjustment of the pay and allowances 
 of the commissioned and enlisted personnel of 
 the several ser\dces herein mentioned." 
 
 LAWS RELATING SPECIFICALLY TO MARINE 
 CORPS. 
 
 Sea duty pay. — By act of March 3, 1915 (38 
 Stat., 948), it was provided "that the increased 
 compensation as now fixed by law for the Ma- 
 rine Corps for foreign shore service shall here- 
 after be paid to the ofiicers and enlisted men 
 of that corps while on sea duty, in the same 
 manner and under the same conditions as is 
 pro\dded by the act approved May thirteenth. 
 
 936 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1612. 
 
 nineteen hundred and eight, for officers of the 
 Navy." (See Army laws noted below as to 
 pay for foreign shore service; see note to sees. 
 1556 and 1571, R. S., as to sea pay allowed 
 officers of the Navy.) 
 
 Shore duty beyond seas. — See note below, 
 under Army laws applicable to Marine Corps. 
 
 Foreign shore service, wanant officers. — "That 
 marine gunners and quartermaster clerks of the 
 Marine Corps assigned to foreign shore ser\ice 
 shall hereafter be entitled to the same increased 
 compensation and under the same contlitions 
 as is now or hereafter allowed by law to com- 
 missioned officers of the Marine Corps." (Act 
 Mar. 4, 1917, 39 Stat., 1188.) 
 
 Marines serving as firemen. — See section 1570, 
 Re\'ised Statutes, as amended by act of March 
 29, 1918 (40 Stat., 499). 
 
 Marines detained after expiration of enlist- 
 ment. — See section 1422, Re\i8ed Statutes, and 
 note thereto. 
 
 Navy mail clerks. — See note to section 1569, 
 Revised Statutes. 
 
 _ By act of May 27, 1908 (35 Stat., 417), addi- 
 tional compensation was authorized for enlisted 
 men of the Navy designated as Navy mail 
 clerks and assistant Navy mail clerks, in 
 amounts to be fixed by the Secretary of the 
 NaA'y, not exceeding $500 per annum for mail 
 clerks and $300 per annum for assistant mail 
 clerks. By act of August 24, 1912, section 11 
 (37 Stat., 560), this pro\'ision was expressly 
 extended to include enlisted men of the Marine 
 Corps so designated. (See also, acts Aug. 24, 
 1912, 37 Stat., 554; Mar. 4, 1917, 39 Stat., 1188; 
 and July 1, 1918, 40 Stat., 718.) 
 
 Aviation duty. — Additional pay and allow- 
 ances for officers and enlisted men of the Navy 
 and Marine Corps detailed for duty involving 
 actual flying in air craft, were authorized by 
 act of March 3, 1915 (38 Stat., 939), as amended 
 by act of August 29, 1916 (39 Stat., 582-586). 
 See note to section 1556, Revised Statutes. 
 Increased "allowances" for aviation duty were 
 prohibited in the cases of "officers, enlisted 
 men, and student flyers of the naval ser\dce," 
 by act of July 1, 1918 (40 Stat., 718.) 
 
 Absence from duty. — By act of August 29, 1916 
 (39 Stat., 580), as amended by act of July 1, 
 1918 (40 Stat., 717), it was provided that no 
 officer or enlisted man of the Navy or Marine 
 Corps shall receive pay for any period in excess 
 of one day that he is absent from duty on ac- 
 count of injury, sickness, or disease resulting 
 from his own intemperate use of drugs of alco- 
 holic Liquors, or other misconduct. 
 
 By act of March 4, 1917 (39 Stat., 1191), it 
 was pro\'ided ' ' that hereafter no part of the pay 
 and allowances authorized for enlisted men 
 detailed as clerks and messengers in the office 
 of the Major General Commandant and the 
 several staff offices shall be forfeited when 
 granted furlough for not exceeding thirty days 
 in each calendar year." 
 
 Longevity pay. — "Hereafter longevity pay for 
 officers in the Army, Navy, Marine Corps, 
 Coast Guard, Public Health Service, and Coast 
 and Geodetic Survey shall be based on the total 
 of all service in any or all of said services." 
 (Act May 18, 1920, sec. 11, 41 Stat., 604.) 
 
 See also statutory enactments noted under 
 section 1600, Revised Statutes. 
 
 Allotments of pay by officers of the Navy and 
 Marine Corps are authorized by act of June 
 10, 1896 (29 Stat., 361.) 
 
 Employment by contractors furnishing naval 
 supplies or war material to the Govermnent, 
 was prohibited in cases of officers of the Navy 
 and Marine Corps by act of June 10, 1896 (29 
 Stat., 361), which pro\'ided that no payments 
 were to be made to such officers while so em- 
 ployed. 
 
 Warrant officers and pay clerks. — By act of 
 August 29, 1916 (39 Stat., 611), it was provided 
 that marine gunners and quartermaster clerks 
 shall "receive the pay, allowances, and privi- 
 leges of retirement of warrant officers in the 
 Navy." (See note to sec. 1556, R. S., as to 
 pay of warrant officers in the Navy. See also 
 note above, under "Foreign shore service, 
 warrant officers.") 
 
 By act of July 1, 1918 (40 Stat., 735), it was 
 provided that pay clerks shall "receive the 
 same pay, allowances, and other benefits now 
 provided by law for clerks for assistant pay- 
 masters." 
 
 By act of June 24, 1910 (36 Stat., 625), it was 
 pro\ided that clerks to assistant paymasters 
 "shall receive the same pay, allowances, and 
 other benefits as are now or may hereafter be 
 provided for paymasters' clerks of correspond- 
 ing length of service in the United States 
 Army." 
 
 By act of March 3, 1911 (36 Stat., 1044), it 
 was provided that "hereafter the pay and allow- 
 ances of Army paymasters' clerks shall be the 
 same as provided by law for Navy paymasters' 
 clerks on shore duty, and they shall also be 
 entitled to the same right of retirement with 
 the same retired pay as is now allowed Navy 
 paymasters' clerks." 
 
 By act of June 24, 1910 (36 Stat., 606), 
 relating to the Navy, it was provided that "all 
 paymasters' clerks shall, while holding appoint- 
 ment in accordance with law, receive the same 
 pay and allowances and have the same rights 
 of retirement as warrant officers of like length 
 of service in the Navy. ' ' (As to pay and allow- 
 ances of warrant officers, see notes to sees. 1556, 
 1558, and 1578, Revised Statutes.) 
 
 By act of August 24, 1912 (37 Stat., 592), it 
 was provided that Army paymaster's clerks 
 shall be known as pay clerks, and shall con- 
 continue to have the pay, allowances, rights, 
 and privileges now allowed by law. 
 
 By act of March 2, 1913 (37 Stat., 708), re- 
 lating to the Army, appropriations were made 
 for 85 pay clerks, and it was provided "that 
 hereafter no further appointments of pay clerks 
 shall be made." Appropriations for Army pay 
 clerks were continued in annual appropria- 
 tion acts to and including act of March 4, 1915 
 (38 Stat., 1068); since which date such appro- 
 priations have been discontinued, except for 
 retired pav clerks. 
 
 _ By act of March 3, 1915 (38 Stat., 942), the 
 title "paymaster's clerk" in the Navy was 
 changed to pay clerk, and the grades of acting 
 pay clerk, pay clerk, and chief pay clerk 
 created, vrith a provision that pay clerks were 
 thereafter to be warranted from acting pay 
 clerks, and that pay clerks and acting pay 
 clerks "shall have the same pay, allowances, 
 and other benefits as are now or may hereafter 
 
 937 
 
Sec. 1612. 
 
 rt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 be allowed other warrant officers and acting 
 warrant oflicorp, respectively." 
 
 Hy act of .lune 3, 191() (39 Stat., 170), it was 
 provided that the Quartermaster Corps in the 
 Army shall consist, amone; others, of "the pay 
 clerks now in active service, who shall here- 
 after have the rank, pay, and allowances of a 
 second lieutenant, and the President is hereby 
 authorized to appoint and commission them, 
 by and Avith the advice and consent of the 
 Senate, second lieutenants in the Quarter- 
 master Corps, United States Army." (See 23 
 Comp. Dec, 508.) 
 
 liy act of August 29, 1916 (39 Stat., 625, 626), 
 it was provided that Army field clerks, and 
 field clerks. Quartermaster Corps, "shall re- 
 ceive the same allowances, except retirement, 
 as heretofore allowed by law to pay clerks." 
 By act of June 4, 1920 (41 Stat., 761), further 
 appointments as Army field clerks and field 
 clerks. Quartermaster Corps, were prohibited, 
 and persons serving as such were rendered 
 eligible for appointment as warrant officers in 
 the Army. 
 
 Gunnery sergeants. — By act of August 22, 1912 
 (37 Stat., 351), "gunnery sergeants of the 
 Marine Corps shall hereafter receive the same 
 pay, and be entitled to the allowances, rank, 
 continuous-service pay, and retired pay of a 
 first sergeant in said corps." (See also note 
 to sec. 1596, R. S.) 
 
 Drum major. — "The pay of the drum major 
 shall be the same as that now established, or 
 that may be hereafter established, for first ser- 
 geants in the Marine Corps of the same length 
 of service." (Act July 26, 1894, 28 Stat., 138.) 
 
 Cooks. — ' ' That hereafter privates regularly de- 
 tailed and ser"\dng as cooks shall receive, in addi- 
 tion to the pay otherwise allowed by law, the fol- 
 lowing: First-class cooks, ten dollars per month; 
 second-class cooks, eight dollars; third-class 
 cooks, seven dollars; and fourth-class cooks, five 
 dollars." (Act Mar. 2, 1907, 34 Stat., 1200.) 
 
 Forage.— By act of March 3, 1885 (23 Stat., 
 432), under "Marine Corps," appropriations 
 were made for forage, with the proviso "that no 
 commutation for forage shall be paid." 
 
 Extra-duty pay. — "That hereafter extra-duty 
 pay will not be allowed to enlisted men of the 
 Marine Corps except when they are regularly 
 detailed thereon by a written order of the com- 
 mandant of the corps." (Act Mar. 3, 1909, 35 
 Stat., 776. See Army law noted below as to 
 extra-duty pay.) 
 
 Duty in Haiti. — Officers and enlisted men of 
 the Marine (^orps detailed for duty to assist the 
 Republic of Haiti shall be entitled to the same 
 credit for such service, for longevity, retire- 
 ment, foreign service, pay, and for all other 
 purposes, that they would receive if they were 
 serving with the Marine Corps. (Act June 12, 
 .1916, sec. 5, 39 Stat., 224.) 
 
 Gun pointers. — During the period of the pres- 
 ent war any enlisted man of the Marine Corps 
 qualified and detailed as a gun pointer or gun 
 captain shall be entitled to the additional pay 
 provided for such qualification and detail, 
 while temporarily absent by proper authority 
 or while performing other temporary duty. 
 (Act Mar. 29, 1918, 40 Stat., 500. _ See below, 
 under "Additional pay for special qualifica- 
 
 tions, details, etc.," and see decisions of Comp- 
 troller of the Treasury noted below.) 
 
 Enlistments changed to duration of war. — Any 
 man who enlisted in the Marine Corps after 
 February 13, 1917, and before November 11, 
 1918, for a term of four years, and who, upon his 
 own application, was regarded as having en- 
 listed for the duration of tlie war and honorably 
 discharged, and within four months thereafter 
 reenlisted in the Marine C'orps for a period of 
 four years, "shall be entitled to receive the 
 benefits and gratuity pay provided by existing 
 law for reenlistments;" or, if otherwise entitled 
 to an honorable discharge, may extend his en- 
 listment for a period of one, two, three, or 
 four years, and shall be entitled to the same 
 rights, privileges, pay and allowances in all re- 
 spects as now provided by law for men who ex- 
 tend enlistments on completion of terms of en- 
 listment, except as to gi-atuity pay; and as to 
 such gratuity pay he shall be entitled to an 
 allowance of one months' pay for extension of 
 one year, two months' pay for extension of two 
 years, and three months' pay for extension of 
 three years. (Act July 11, 1919, 41 Stat., 139, 
 140.) 
 
 Reenlistment after reserve service. — Enlisted 
 men of the Marine Corps discharged to accept 
 appointments as commissioned or warrant 
 officers in the Marine Corps Reserve, who reen- 
 list in the Marine Corps within three months 
 after termination of their reserve service, shall 
 be restored to the grade or rank held by them 
 before being discharged to accept such appoint- 
 ments, and their service in the Regular Marine 
 Corps including their active service in the Ma- 
 rine Corps Reserve shall be regarded as contin- 
 uous for purposes of continuous service pay. 
 (Act July 11, 1919, 41 Stat., 141.) 
 
 Wan-ant officers and pay clerks having reserve 
 service. — Any warrant officer or pay clerk in the 
 Marine Corps who has accepted or may here- 
 after accept appointment as a commissioned 
 officer in the Marine Corps Reserve shall be en- 
 titled, upon termination of his appointment as a 
 commissioned officer, to revert to his former 
 status as a warrant officer or pay clerk in the 
 Marine Corps, and to count all active serA-ice 
 for purposes of longevity pay and retirement. 
 (Act July 11, 1919, 41 Stat., 141.) 
 
 Special allowances for maintenance .—By act 
 of June 4, 1920 (41 Stat., 813), under "Pay, 
 Miscellaneous," it was provided that "this ap- 
 propriation and the appropriation 'Pay, Ma- 
 rine Corps, ' shall be available for special allow- 
 ances for maintenance to officers and enlisted 
 men of the Navy and IMarine Corps serving un- 
 der unusual conditions." 
 
 Retired enlisted men. — See note to Section 1622, 
 Revised Statutes. 
 
 Marine Band. — See note to section 1613, Re- 
 \ised Statutes. 
 
 Additional pay for special qualifications, de- 
 tails, etc. — The naval appropriation act June 
 4, 1920 (41 Stat., 829), _ under "Pay, Marine 
 Corps," makes appropriation for "additional 
 compensation for enlisted men of the Marine 
 Corps qualified as expert riflemen, sharp- 
 shooters, marksmen, or regularly detailed as 
 gun captains, gun pointers, mess sergeants, 
 cooks, messmen, signalmen, or holding good- 
 
 938 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1612. 
 
 conduct medals, pins, or bars, including in- 
 terest on deposits by enlisted men, post-ex- 
 change debts of deserters, under such rules as 
 the Secretary of the Navy may prescribe, and 
 the authorized travel allowance of discharged 
 enlisted men, and for prizes for excellence in 
 gunnery exercise and target practice, and for 
 pay of enlisted men designated as Navy mail 
 clerks and assistant Navy mail clerks, both 
 afloat and ashore." (See Army laws, and de- 
 cisions of Comptroller of the Ti-easury, noted 
 below, and see notes above, under ' ' Cooks' ' and 
 "Gun pointers.") 
 
 Medals of honor, etc. — See note to section 
 1407, Re\ised Statutes, and see 24 Op. Atty. 
 Gen., 579, noted thereunder. See also act of 
 February 4, 1919 (40 Stat., 1056), and 26 Comp. 
 Dec, 464. 
 
 Commutation of fuel, enlisted men. — By act of 
 April 27, 1904 (33 Stat., 407), it was provided 
 that ' ' the quartermaster of the Marine Corps be, 
 and is hereby, authorized and dii-ected to pay 
 from appropriations fuel. Marine Corps, to en- 
 listed men of the Marine Corps employed as 
 clerks and messengers in the office of the com- 
 mandant and in the offices of the staff officers 
 of the Marine Corps commutation of fuel, at 
 nine dollars each per month for clerks and 
 eight dollars each per month for messengers, 
 from and after January twenty-second, nine- 
 teen hundred and four,' when, by a decision of 
 the Comptroller of the Treasury, enlisted men 
 so employed were denied the right to said com- 
 mutation in said amounts." 
 
 Commutation of quarters, enlisted men. — By 
 actof June4, 1920 (41 Stat., 832), appropriation 
 was made for "commutation of quarters for en- 
 listed men on recrmting duty, for officers and 
 enlisted men ser^ing with troops where there 
 are no public quarters belonging to the Govern- 
 ment, and where there are not sufficient quar- 
 ters possessed by the United States to accommo- 
 date them, for enlisted men employed as clerks 
 and messengers in the offices of the comman- 
 dant, adjutant and inspector, paymaster, and 
 quartermaster, and the offices of the assistant 
 adjutant and inspectors, assistant paymasters, 
 assistant quartermasters, at S21 each per month, 
 and for enlisted men employed as messengers 
 in said offices, at $10 each per month." 
 
 Bounty for reenlisting. — By act of June 4, 
 1920, section 7 (41 Stat.. 836), _ authorizing 
 short-term enlistments in the Marine Corps, it 
 was provided that "all laws now applicable to 
 four-year enlistments shall apply, under such 
 regulations as may be prescribed by the Secre- 
 tary of the Navy, to enlistments for a shorter 
 period ^\"ith proportionate benefits upon dis- 
 charge and reenlistment: Provided. That here- 
 after the Secretary of the Navy is authorized, 
 in his discretion, to establish such grades and 
 ratings as may be necessary for the proper 
 administration of the enlisted personnel of the 
 Navy and Marine Corps." (See27 Comp. Dec, 
 101, noted below, as to repeal in part of sec 
 1612.) 
 
 Mileage, travel without troops. — By act of 
 June 10, 1896 (29 Stat., 376), it was provided 
 that "hereafter officers of the Marine Corps 
 traveling under orders without troops shall be 
 allowed the same mileage as is now allowed 
 officers of the Navy traveling without troops." 
 
 (See note to sec. 1566, R. S. And see decisions 
 of Comptroller of the Treasury, noted below.) 
 
 Repeated travel. — "Hereafter in cases where 
 orders are given to officers of the Navy or Ma- 
 rine Corps for travel to be performed repeatedly 
 between two or more places in such vicinity as 
 in the discretion of the Secretary of the Navy 
 is appropriate, he may direct that actual and 
 necessary expenses only be allowed." (Act 
 July 1, 1902, 32 Stat., 663. See note to sec. 
 1566, R. S.) 
 
 Transportatio n furnished. — " H er eaf ter no 
 mileage shall be paid to any officer where Gov- 
 ernment transportation is fui'nished such 
 officer." (Act June 30, 1914, 38 Stat., 410, 
 under "Pay, Marine Corps.") 
 
 Furlough certificates. — The Secretary of the 
 Navy is authorized to issue to wounded and 
 otherwise disabled sailors or marines, under 
 treatment in any hospital, who are given fur- 
 loughs at any time, a furlough certificate which 
 shall entitle such sailor or marine to purchase a 
 ticket to and from his home during the period 
 of furlough at the rate of one cent per mile. 
 (Act June 5. 1920, 41 Stat., 975, 976.) 
 
 Transportation of families. — By act of May 18, 
 1920, section 12 (41 Stat., 604), transportation 
 in kind was authorized for the \viie and de- 
 pendent child or children of any commissioned 
 officer, noncommissioned officer of the grade of 
 color sergeant and above, including any non- 
 commissioned officer of the Marine Corps of 
 coiTesponding grade, or warrant officer, upon 
 the permanent chaiige of station by such, 
 officer or noncommissioned officer. (By Army 
 act of June 4, 1920, sec. 4, 41 Stat., 761, it was 
 provided that this transportation privilege 
 ' 'shall apply only to enlisted men of the first 
 three grades.") 
 
 Reimbursement for lost clothing, etc. — By act 
 of October 6, 1917 (40 Stat., 389), provision was 
 made for reimbursement in money by the pay- 
 master of the Marine Corps, or reimbursement 
 in kind by the quartermaster of the Marine 
 Corps to persons in the Marine Corps for prop- 
 erty lost or destroyed in the service. (See 
 sec. 290, R. S.) 
 
 Quarters for dependents. — By act of December 
 24, 1919 (41 Stat., 384), it was provided that 
 officers of the Marine Corps shall be entitled, 
 during the present emergency, to all the 
 rights and benefits under the act of April 16, 
 1918 (40 Stat., 530), authorizing quarters in 
 kind for dependents of officers of the Army 
 during absence in the field, or the authorized 
 commutation therefor, including allowance 
 of heat and light. By act of May 18, 1920, 
 section 2 (41 Stat., 602). said rights and benefits 
 were continued until June 30, 1922, and it was 
 provided "That such rights and benefits as are 
 prescribed for officers shall apply equally for 
 enlisted men now entitled by regulations to 
 quarters or to conunutation therefor." 
 
 When quarters not available. — By act of July 
 1, 1918 (40 Stat., 718), it was provided that 
 "hereafter the Secretary of the Nav^ may de- 
 termine where and when there are no public 
 quarters available for persons in the Nav^y and 
 Marine Corps, or serving therewith, vsithin the 
 meaning of any Act or parts of Acts relating to 
 the assignment of quarters or commutation 
 therefor." 
 
 54641°— 22- 
 
 -60 
 
 939 
 
Sec. 1612. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Travel allowance on discharge. — By act of 
 February 28, 1919, section 3 (40 Stat., 1202, 
 1203), it was provided that any enlisted man 
 lionorably discharged from llie Marine Corps 
 shall receive 5 cent.s per mile from place of 
 discharge to his actual bona fide home or res- 
 idence, or original muster into the serAdce, 
 at Ms option, w-ith a proviso that for sea travel 
 on discharge transportation and subsistence 
 onlv shall be furnished. (See note to sec. 
 I5(ii), II. S.) By act of June 4, 1920, section 6 
 (41 Stat., 836), said travel allowance was 
 made payable to any enlisted man thereafter 
 discharged from any branch of the naval serv- 
 ice for the purpose of reenlisting in the Navy 
 or Marine Corps, or who should thereafter 
 extend his enlistment therein. 
 
 Deposits of savings. — By act of June 29, 1906 
 (34 Stat., 579), enlisted men of the Marine 
 Corps were authorized to deposit their savings, 
 and receive interest thereon fi-om the Govern- 
 ment, in the same manner and under the same 
 conditions as provided for enlisted men of the 
 Navy, except that sums so deposited shall pass 
 to the credit of the appropriation for pay of the 
 Marine Corps. (See note to sec. 1569, R. S.) 
 
 Death gratuity. — Payment of an amount 
 equal to six months' pay to the widow, cliild 
 or cliildren, or other designated dependent re- 
 lati\e of any officer or enlisted man of the 
 Regular Marine Corps dying from wounds or dis- 
 ease not the result of his own misconduct, was 
 authorized by act of June 4, 1920 (41 Stat., 824). 
 
 Sale of miiforvis at cost. — By act of July 11, 
 1919 (41 Stat., 154), under "Clothing, Marine 
 Corps," it was provided that "hereafter this 
 appropriation shall be available for the pur- 
 chase of uniforms, accouterments, and equip- 
 ment for sale at cost price to officers under 
 such regulations as the Secretary of the Navy 
 may prescribe." 
 
 Sale of subsistence stores, etc. — By act of 
 August 29, 1916 (39 Stat., 613), under "Pro\d- 
 sions. Marine Corps." it was provided: "That 
 hereafter so much of this appropriation as may 
 be necessary may be applied for the purchase, 
 for sale to officers, enlisted men, and civilian 
 employees, of such articles of subsistence 
 stores as may from time to time be designated 
 and under such regulations as may be pre- 
 scribed by the Secretary of the Navy." (The 
 same provision was contained in identical 
 language in appropriation acts for prior years. 
 It was omitted from the act of March 4, 1917, 
 and has not since appeared, its ondssion being 
 for the reason that it was regarded as per- 
 manent legislation as it already existed. (See 
 Hearings before Committee on Naval Affairs, 
 House of Representatives, 64th Cong., 2d 
 sess., p. 365, with reference to "Provisions, 
 Marine Corps"; see also act Mar. 4, 1913, 37 
 Stat., 909, and note thereto^ 
 
 Honorably discharged officers and enUsted 
 men of the Navy or Marine Corps, while under 
 medical treatment by public health service, 
 may be permitted to purchase subsistence 
 stores and articles of other authorized sup- 
 plies, except articles of uniform, from the 
 Army, Navy, and Marine Corps, at the same 
 price as charged the officers and enlisted men 
 of the Army, Navy, and Marine Corps. (Act 
 June 5, 1920, 41 Stat., 976.) 
 
 Subsistence supplies of the Army may be 
 sold to officers and enlisted men of the Navy 
 and Marine Corps at same prices charged of- 
 ficers and enlisted men of the Army. (Act 
 Aug. 29, 1916, .39 Stat., 630, which alsoproAdded 
 that the officers and enlisted men of tlie Army 
 shall be permitted to purchase subsistence 
 supplies from the Navy and Marine Corps at 
 the same price as is charged officers and en- 
 listed men of the Navy and Marine Corps.) 
 
 Articles of serviceable quartermaster property 
 may be sold by the Quartermaster General of 
 the Army to officers of the Navy and Marine 
 Corps, for their use in the public service, in 
 the same manner as these articles are now 
 sold to officers of the Army. (Act Mar. 4, 1915, 
 38 Stat., 1079.) 
 
 Temporary increases in pay of Marine Corps — . 
 See act May 18, 1920 (41 Stat., 601), noted 
 below imder "Army laws applicable to Marine 
 Corps." 
 
 ARMY LAW.S APPLICABLE TO MARINE CORPS. 
 
 Pay of officers.— By act May 11, 1908 (35 Stat., 
 108), it was provided "that hereafter the an- 
 nual pay of officers of the Army of the several 
 grades herein mentioned shall be as follows: 
 Major-general, eight thousand dollars; briga- 
 dier-general, six thousand dollars; colonel, 
 four thousand dollars; lieutenant-colonel, three 
 thousand five hundred dollars; major, three 
 thousand dollars; captain, two thousand four 
 himdred dollars; first lieutenant, two thousand 
 dollars; second lieutenant, one thousand seven 
 himdred dollars." 
 
 Mounted pay. — "Hereafter the United States 
 shall furnish mounts and horse equipments for 
 all officers of the Army below the gi-ade of 
 major required to be moimted, but in case any 
 officer below the grade of major required to be 
 mounted pro\'ides himself with suitable mounts 
 at his own expense, he shall receive an addi- 
 tion to his pay of one hundred and fifty dollars 
 per annum if he provides one mount, and two 
 himdred dollars per annum if he provides two 
 moimts." (Act May 11, 1908, 35 Stat., 108.) 
 
 See note above, imder "Forage," for law 
 relating to commutation of forage for Marine 
 officers. 
 
 Longevity pay of officers. — "There shall be 
 allowed and paid to each commissioned officer 
 below the rank of brigadier-general, including 
 chaplains and others haAing assimilated rank 
 or pay, ten per centum of their current yearly 
 pav for each term of five years of service." 
 (Sec. 1262, R, S.) 
 
 "That from and after the first day of July,, 
 eighteen himdred and eighty-two, the ten per 
 centum increase for length of service allowed 
 to certain officers by section twelve hundred 
 and sixty- two of the Revised Statutes shall be 
 computed on the yearly pay of the grade fixed 
 by sections twelve hundred and sixty-one and 
 twelve hundred and seventy -four of the Re- 
 vised Statutes. "_ (Act June 30, 1882, 22 Stat. 
 118. See decisions of Supreme Court noted 
 below as to longevity pay.) 
 
 "The total amoimt of such increase for 
 length of service shall iii no case exceed forty 
 per centum on the yearly pay of the grade as 
 provided by law." (Sec. 1263, R. S.) 
 
 940 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1612. 
 
 " In no case shall the pay of a colonel exceed 
 five thousand dollars a year; the pay of a lieu- 
 tenant-colonel exceed" four thousand five 
 hundred dollars a year, or the pay of a major 
 exceed four thousand dollars a year." (Sec. 
 1267, R. S., as reenacted bv act May 11, 1908, 
 35 Stat., 108. But see act May 18, 1920, 41 
 Stat., 601, noted below, temporarily increas- 
 ing pay of Army and Marine officers.) 
 
 "In determining relative rank and increase 
 of pay for length of service, * * * active 
 duty performed while imder appointment 
 from the United States Government, whether 
 in the Regular, provisional, or temporaiy forces, 
 shall be credited to the same extent as service 
 under a Regular Army commission." (Act 
 Jime 4, 1920, sec. 51, 41 Stat., 785, amending 
 Act June 3, 1916, sec. 127, 39 Stat., 217. See 
 also note to sec. 1600, R. S.) 
 
 Pay not recZwcerf.— "That nothing herein 
 contained shall be constnied so as to reduce the 
 pay or allowances now authorized by law for 
 any officer or enlisted man of the Army." 
 (Act May 11, 1908, 35 Stat., 110.) 
 
 Aids to general officers. — " The officers of the 
 Army shall be entitled to the pay herein stated 
 after their respective designations: * * * 
 Aid to major general: two himdred dollars a 
 year, in addition to pay of his rank. Aid to 
 brigadier general: one hundred and fifty dollars 
 a year, in addition to pay of his rank." (Sec. 
 1261, R. S.) 
 
 See note to section 1556, Revised Statutes, 
 as to additional pay allowed aids in the Navy. 
 
 Foreign shore service. — See note above, 
 under "Laws relating specificallv to Marine 
 Corps." 
 
 "Officers and enlisted men of the Marine 
 Corps, who have been detailed, or may here- 
 after be detailed, for shore duty in Alaska, the 
 Philippine Islands, Guam, or elsewhere be- 
 yond the continental limits of the United 
 States, shall be considered as having been de- 
 tailed for 'shore duty beyond seas,' and shall 
 receive pay accordingly, with such additional 
 pay as may be pro\T.ded by law for service in 
 island possessions of the United States." 
 (Act Mar. 3, 1901, 31 Stat., 1108.) 
 
 "That hereafter the pay proper of all com- 
 missioned officers and enlisted men serving 
 beyond the limits of the States comprising the 
 Union and the Territories of the United States 
 contiguous thereto shall be increased ten per 
 centum for officers and twenty per centum for 
 enlisted men over and above the rates of pay 
 proper as fixed by law for time of peace, and 
 the time of such servdce shall be coimted from 
 the date of departure from said States to the 
 date of return thereto." (Act June 30, 1902, 
 32 Stat., 512.) 
 
 ' ' That increase of pay for service beyond the 
 limits of the States comprising the Union, and 
 the territories of the United States contiguous 
 thereto, shall be as now provided by law." 
 (Act May 11, 1908, 35 Stat., 110.) _ 
 
 "That hereafter the laws allowing increases 
 of pay to officers and enlisted men for foreign 
 service shall not apply to ser\dce in the Canal 
 Zone, Panama, or Hawaii, or Porto Rico." 
 (Act Aug. 24, 1912, 37 Stat., 576.) 
 
 Officers and enlisted men who may hereafter 
 serve on Army transports in the Philippine 
 
 Archipelago, under the control and orders of 
 the commanding general, Philippine Division, 
 shall be entitled to receive the same rate of 
 pay as is provided by law for officers and en- 
 listed men serving at shore stations beyond the 
 limits of the United States. (Act May 11, 1908, 
 35 Stat., 114.) 
 
 Pay during absence. — "Officers when absent 
 on account of sickness or wounds, or lawfully 
 absent from duty and waiting orders, shall 
 receive full pay; when absent with leave, for 
 other causes, full pay during such absence not 
 exceeding in the aggregate thirty days in one 
 year, and half-pay during such absence exceed- 
 ing thirty days in one year. WTien absent 
 without leave, they shall forfeit all pay during 
 such absence, unless the absence is excused as 
 unavoidable." (Sec. 1265, R. S.) 
 
 "All officers on duty shall be allowed, in the 
 discretion of the Secretary of War, sixty days' 
 leave of absence without deduction of pay or 
 allowance: Provided, That the same be taken 
 once in two years: And provided further , That 
 the leave of absence may be extended to three 
 months, if taken once only in three years, or 
 four months if taken only once in four years." 
 (Act July 29, 1876, 19 Stat., 102, amending act 
 May 8, 1874, 18 Stat., 43. )_ 
 
 Leaves of absence which may be granted 
 officers of the Regular or Volunteer Army serv- 
 ing in the Territory of Alaska or without the 
 limits of the United States, for the purpose of 
 returning thereto, shall be regarded as taking 
 effect on the dates such officers reach the United 
 States, and as terminating on the respective 
 dates of their departure from the United States 
 in returning to their commands. (Act Mar. 2, 
 1901, 31 Stat., 902.) 
 
 "Leaves to be absent from the Philippine 
 Islands, other than to return to the United 
 States, which may be granted officers of the 
 Army serving in said islands and sailing from 
 Manila, shall be regarded as taking effect on 
 the date such officers reach Manila, and as 
 terminating on the dates of their departure 
 from Manila, in retm-ning to their stations." 
 (Act Mar. 2, 1907, 34 Stat., 1171.) 
 
 "Officers appointed to the Regular Army 
 from the volunteer service, whose service has 
 been continuous, shall, in the computation of 
 leaves of absence after their appointment in 
 the Regular Army, be entitled to the leave 
 credits which accrued to them as volunteer 
 officers where such leave credits were not 
 availed of during their volunteer service." 
 (Act June 30, 1902, 32 Stat., 508.) 
 
 Absence resulting fi"om misconduct: See 
 laws noted above, under "Laws relating specifi- 
 cally to Marine Corps." 
 
 Temporary increases in pay of officers. — By act 
 of May 18, 1920 (41 Stat., 601-605), the pay of 
 officers of the Army and Marine Corps was in- 
 creased, as set forth below, commencing Jan- 
 uary 1, 1920, and remaining effective until 
 June 30, 1922; such annual increases being "in 
 addition to all pay and allowances now allowed 
 by law:" Colonels in the Army and Marine 
 Corps, $600; lieutenant colonels in the Army 
 and Marine Corps, $600; majors in the Army 
 and Marine Corps, .|840; captains in the Army 
 and Marine Corps, $720; first lieutenants in the 
 
 941 
 
Sec. 1612. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Army and Marine Corps, $600; second lieuten- 
 ant.s in the Army and Marine Corps, $420. 
 
 /*(((/ o/inlisttd vun. — CJeneral rates of pay for 
 enlisted men of the Army were prescribed by 
 act of May 11, 1908 (35 Stat., 109). Increases 
 in the pay of enlisted men were made by act of 
 May IS, 1017. section 10 (40 Stat., 82), to con- 
 tinue '' until the termination of the emersjency." 
 The.se increa.^es were '"continued in force and 
 effect from and after the date and approval of 
 this Act," bv act approved July 11, 1919 (41 
 Stat., 110). 
 
 J5y act of May 18, 1920 (41 Stat., 601-605), it 
 was pro\ided that, "commencing January 1, 
 1920, the pay of all enlisted men of the Army 
 and Marine Corps and of members of the female 
 Nurse Corps of the Army and Navy is hereby 
 increased 20 per centum: Provided, That sucn 
 increase shall not apjily to enlisted men whose 
 initial pay, if it has already been permanently 
 increased since April 6, 1917, is now less than 
 $33 per month." Such increases were to re- 
 main effective until June 30, 1922, unless 
 sooner amended or repealed, but were to "be 
 the rates of pay during the current enlistment 
 of all men in active serWce on the date of 
 the approval of this Act, and for those who en- 
 list, reenlist, or extend their enlistments prior 
 to July 1 , 1922, for the term of such enlistment, 
 reenlistment, or extended enlistment." 
 
 By act of June 4, 1920, section 4 (41 Stat., 
 761), new rates of base pay were prescribed for 
 enlisted men, as set fortn below, and it was 
 provided that the temporary increase of pay for 
 enlisted men of the Army authorized by act of 
 May 18, 1920, above quoted, "shall be com- 
 puted upon the base pay pro%ided for in this 
 section, and shall apply only to enlisted men of 
 the first five grades," and it was further pro- 
 ^dded ' ' that nothing in this section shall operate 
 to reduce the pay which any enlisted man is 
 now recei\'ing, during his cuiTent enlistment 
 and while he holds his present grade, nor to 
 change the present rate of pay of any enlisted 
 men now on the retired list." 
 
 "On and after July 1, 1920, the grades of en- 
 listed men shall be such as the President may 
 from time to time direct, with monthly base 
 pay at the rate of $74 for the first grade, $53 for 
 the second grade, $45 for the third grade, §45 
 for the fourth grade, $37 for the fifth grade, $35 
 for the sixth grade, and $30 for the seventh 
 grade. Of the total authorized number of en- 
 listed men, those in the first grade shall not 
 exceed 0.6 per centum, those in the second 
 grade 1.8 per centum, those in the third grade 
 2 per centum, those in the fourth grade 9.5 per 
 centum, those in the fifth grade 9.5 per centum, 
 those in the sixth grade 25 per centiim." (Act 
 June 4, 1920, sec. 4, 41 Stat., 761, amending act 
 of June 3, 1916, sec. 4, 39 Stat., 167.) See note 
 abo^■e, under "Short term enlistments," for 
 law authorizing Secretary of the Navy to estab- 
 lish grades and ratings in Marine Corps. 
 
 Longevity paj/ of enlisted men. — "Existing 
 laws pro\iding for continuous service pay are 
 repealed to take effect July 1, 1920, and there- 
 after enlisted men shall receive an increase of 
 10 per centum of their base pay for each five 
 years of service in the Army, or ser\-ice which 
 by existing law is held to be the equivalent of 
 Army service, such increase not to exceed 40 
 
 per centum." (Act June 4, 1920, sec. 4, 41 
 Stat., 761, amending act of June 3, 1916, sec. 4 
 39 Stat., 167.) 
 
 Enlistment and reenlistment allowance. — "Ex- 
 isting laws pro^•iding for the payment of three 
 months' jtay to certain soldiers upon reenlist- 
 ment are hereby repealed, and hereafter an 
 enlistment allowance equal to three times the 
 monthly pay of a soldier of the seventh grade 
 shall be ])aid to every eoldier who enlists or re- 
 enlists for a period of three years, payment of 
 the enlistment allowance for original enlistment 
 to be deferred until honorable discharge." 
 (Act Jime 4, 1920, sec. 27, 41 Stat., 775, amend- 
 ing act of June 3, 1916, sec. 27, 39 Stat., 185. 
 See 27 Comp. Dec, 10], noted below, as to re- 
 peal in part of sec. 1612.) 
 
 Specialist ratings. — "Under such regulations 
 as the Secretary of War may prescribe, enlisted 
 men of the sixth and seventh grades may be 
 rated as specialists, and receive extra pay there- 
 for per month, as follows: First class, $25; 
 second class, $20; third class, $15; fourth class, 
 $12; fifth class, $8; sixth class, $3. Of the total 
 authorized nxmiber of enlisted men in the 
 sixth and seventh grades, those rated as special- 
 istfl of the first class shall not exceed 0.7 per 
 centum; of the second class, 1.4 per centum; 
 of the third class, 1.9 per centum; of the fourth 
 class, 4.7 per centum; of the fifth class, 5 per 
 centum; of the sixth class, 15.2 per centum." 
 (Act June 4, 1920, sec. 4, 41 Stat., 761, amend- 
 ing act Jime 3, 1916, sec. 4, 39 Stat., 167.) 
 
 Extra duty pay.— "All laws and parts of laws 
 providing for extra duty pay for enlisted men 
 are repealed, to take effect July 1, 1920." 
 (Act Jime 4, 1920, sec. 4, 41 Stat., 761, amend- 
 ing'act Jime 3, 1916, sec. 4, 39 Stat., 167.) 
 
 Enlistment bounty. — "No bounty shall be 
 paid to induce any person to enlist in the 
 military ser\-ice of the United States." (Act 
 May 18, 1917, sec. 3, 40 Stat., 78. See above, as 
 to "Enlistment allowance." 
 
 Additional pay for marksmen, etc. — "That 
 hereafter enlisted men now qualified or here- 
 after quaUfying as marksmen shall receive $2 
 per month? as sharpshooters, $3 per month; as 
 expert riflemen, $5 per month; as second-class 
 gunners, $2 per month; as first-class gimners, 
 $3 per month; as expert first-class gunners, 
 Field Artillery, $5 per month; as gun pointers, 
 gun commanders, observ^ers second class, chief 
 planters, and chief loaders, $7 per month; as 
 plotters, observers first class, casemate elec- 
 tricians, and coxswains, $9 per month, all in 
 addition to their pay, under such regulations as 
 the Secretary of War may prescribe, but no 
 man shall receive at the same time additional 
 pay for more than one of the classifications 
 named in this section." (Act May 11, 1908, 35 
 Stat., 110, as amended and reenacted by act 
 May 12, 1917, 40 Stat., 45. See decisions of the 
 Comptroller of the Treasury, noted below, as to 
 additional pay for s]>ecial quaUficatious, de- 
 tails, etc., in the ]\Iarine Corps.) 
 
 "Mess sergeants shall receive six dollars per 
 month in addition to their pay." (Act May 11, 
 1908, 35 Stat., 109.) 
 
 Quarters and commutation thereof. — "That at 
 all posts and stations where there are pubUc 
 quarters belonging to the United States officers 
 may be furnished with quarters in kind in such 
 
 942 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1612. 
 
 public quarters, and not elsewhere, by the 
 Quartermaster's Department, assigning to the 
 officers of each grade, respectively, such num- 
 ber of rooms as is stated in the following table, 
 namely: Second lieutenants, two rooms; first 
 lieutenants, three rooms; captains, four rooms; 
 majors, five rooms; lieutenant-colonels, six 
 rooms; colonels, seven rooms; brigadier- 
 generals, eight rooms; major-generals, nine 
 rooms; lieutenant-general, ten rooms: Provuled 
 further, That at places where there are no public 
 quarters commutation therefor may be paid by 
 the Pay Department to the officer entitled to 
 the same at a rate not exceed twelve dollars 
 per month per room." (Act June 17, 1878, Sec. 
 9, 20 Stat., 151, as amended and reenacted by 
 act Mar. 2, 1907, 34 Stat., 1168, 1169.) 
 
 "That hereafter, at places where there are no 
 public quarters available, commutation for the 
 authorized allowance therefor shall be paid to 
 commissioned officers, acting dental surgeons, 
 veterinarians, members of the Nurse Corps, and 
 pay clerks at the rate of $12 per room per month; 
 and, when specifically authorized by the Secre- 
 tary of War, to enlisted men at the rate of $15 
 per month, or in lieu thereof he may, in his 
 discretion, rent quarters for the use of said 
 enlisted men when so on duty." (Act Mar. 4, 
 1915, 38 Stat., 1069.) 
 
 "Officers temporarily absent on duty in the 
 field shall not lose their right to quarters or 
 commutation thereof at their permanent station 
 while so temporarily absent." (Act Feb. 27, 
 1893, 27 Stat., 480. As to quarters for depend- 
 ents, see laws noted above, under ' ' Laws relating 
 specifically to Marine Corps.") 
 
 Heat and light.— "The heat and light actually 
 necessary for the authorized allowance of quar- 
 ters for officers and enlisted men shall be fur- 
 nished at the expense of the United States 
 under such regulations as the Secretary of War 
 may prescribe." (Act Mar. 2, 1907, 34 Stat., 
 1167.) 
 
 By annual appropriation for the Marine 
 Corps, under "Maintenance, Quartermaster's 
 Department," provision is made "for heat, 
 light, and commutation thereof for the author- 
 ized allowance of quarters for officers and en- 
 listed men." (Act June 4, 1920, 41 Stat., 831.) 
 
 Sale of fuel to o^c^-rs.— "Hereafter fuel may 
 be furnished to commissioned officers on the 
 active list by the Quartermaster's Department, 
 for the actual use of such officers only, at the 
 rate of three dollars per cord for standard oak 
 wood, or at an equivalent rate for other kinds of 
 fuel, the amount so furnished to each to be 
 limited to the officer's actual personal necessi- 
 ties as certified to by him." (Act June 12, 
 1906, 34 Stat., 250.) 
 
 Traveling expenses. — "That for all sea travel 
 actual expenses only shall be paid to officers 
 * * * when traveling on duty under compe- 
 tent orders, with or without troops, and the 
 amount so paid shall not include any shore 
 expenses at port of embarkation or debarkation 
 but for the pmpose of determining allowances 
 for all travel under orders, or for officers and 
 enlisted men on discharge, travel in the Philip- 
 pine Archipelago, the Hawaiian Archipelago, 
 the home waters of the United States, and be- 
 tween the United States and Alaska shall not 
 be regarded as sea travel and shall be paid for 
 
 at the rates established by law for land travel 
 within the boundaries of the United States." 
 (Act June 12, 1906, 34 Stat., 247. As to travel 
 with troops, see note above, under "Laws relat- 
 ing specifically to Marine Corps"; and see deci- 
 sions of Comptroller of the Treasury, noted 
 below.) 
 
 "That hereafter officers of the Army and 
 Navy detailed for service in connection with 
 the Lighthouse Establishment shall be paid 
 their actual traveling expenses when traveling 
 under orders on official duty to and from points 
 which can not be conveniently reached by ves- 
 sel or railroad." (Act Feb. 26, 1907, sec. 6, 34 
 Stat., 997.) 
 
 "That hereafter under such regulations and 
 within such maximum rates as may be pre- 
 scribed by the Secretary of War enlisted men 
 may be reimbursed for actual expenses of travel, 
 including subsistence and lodging, incurred 
 while traveling under competent orders and not 
 embraced in the movement of troops, or they 
 may be paid a fiat per diem therefor in lieu of 
 such reimbursement." (Act Apr. 20, 1918, 40 
 Stat., 534.) 
 
 Travel allowance of discharged officers. — "That 
 hereafter when an officer shall be discharged 
 from the service, except by way of punishment 
 for an offense, he shall receive for travel allow- 
 ances from the place of his discharge to the 
 place of his residence at the time of his appoint- 
 ment or to the place of his original muster into 
 the service four cents per mile * * * : 
 Provided further, That for sea travel on discharge 
 actual expenses only shall be paid to officers." 
 (Act Mar. 2, 1901, 31 Stat., 903.) 
 
 Prior laws repealed by section 1612. — 
 The act of June 30, 1834, section 5 (embodied 
 in section 1612, R. S.), repealed the joint reso- 
 lution of May 25, 1832, respecting the pay and 
 emolimients of the Marine Corps. (U. S. v. 
 Freeman, 3 How., 556.) 
 
 It was provided by section one of the act of 
 August 5, 1854 (now embodied in section 1612, 
 R. S.), "that the noncommissioned officers, 
 musicians, and privates of the U. S. Marine 
 Corps shall be entitled to and receive the same 
 pay and bounty for reenlisting as are now or 
 may hereafter be allowed to the noncommis- 
 sioned officers, musicians, and privates in the 
 Infantry of the Army." It would seem that 
 this provision was intended to supersede all 
 laws then in force relating to the pay of en- 
 listed men of the Marine Corps, and to repeal, 
 among other provisions, that portion of the act 
 of March 2, 1837, as amended, which gave 
 marines one-fourth additional pay for serving 
 beyond their enlistments. But the former 
 practice of allowing marines this increase was 
 continued as though the law did not apply to 
 cases of that kind. This long-continued con- 
 struction of the law should not be overturned. 
 (5 Comp. Dec, 524; see sec. 1422, R. S., and 
 note thereto.) 
 
 Section 1612 repealed as to bounty for 
 reenlisting.— So much of section 1612, Re- 
 vised Statutes, as provides that enlisted men 
 of the Marine Corps shall be entitled to receive 
 the same bounty for reenlisting, usually desig- 
 nated as honorable discharge gratuity, as en- 
 listed men of like grades in the Infantry of the 
 
 943 
 
Sec. 1612. 
 
 Ft. 2. REVISED STATUTES. 
 
 The Navy. 
 
 Army, is repealed and superseded by section 7 
 of the act of June 4, J!»20 (U ytat., '6m), under 
 the provisions of which cnListed men of the 
 Marine Corps reenlisting on or after June 4, 
 1920, for four years, three years, or two years, 
 are entitled to receive four months, three 
 months, or two months' extra pay, resiiectively, 
 at the rate of pay they were receivinj^ at the 
 time of honoi-able discharge. (27 C'omp. Dec, 
 101 ; see Army law noted above, under "Enlist- 
 ment and reenlistment allowance," and Marine 
 Corps law noted above under "Bounty for 
 reenlisting." See also sec. 1573, R. S., and 
 note thereto.) 
 
 Section 1612 not repealed as to pay. — 
 So much of section 1612 as provides that en- 
 listed men of the Marine Corps shall be entitled 
 to recei\e the same pay as enlisted men of 
 like grades in the Infantry of the Army is still 
 in full force and effect. The pay of enlisted 
 men of the Marine Corps is accordingly that 
 prescribed for the corresponding grades of the 
 Army by the act of June 4, 1920 (41 Stat., 761), 
 plus the 20 per cent increase temporarily 
 authorized by act of May 18, 1920 (41 Stat., 
 601), plus longevity increase allowed by the 
 Army act of June 4, 1920 (41 Stat., 761), and 
 additional pay for specialists as prescribed in 
 that act. (27 Comp. Dec, 101; see also, 27 
 Comp. Dec, 170.) 
 
 General effect of section 1612. — The 
 pay of the Marine Corps is regulated by the 
 laws which govern the pay of the Army, and 
 as changes are made in the Army pay those 
 changes take effect simultaneously in the pay 
 roll of the Marine Corps. This is the legal e ffect of 
 section 1612. (Reid v. U. S., 18 Ct. Cls., 625.) 
 
 Section 1612 was intended to operate upon 
 future as well as existing legislation on pay, 
 allowances, and bounty in the Ajmy. (19 Op. 
 Atty. Gen., 616, 622.) 
 
 Limitations upon operation of section 
 1612. — The pay of the Marine Corps is regu- 
 lated by the law which governs the Army pay, 
 and this is accomplished automatically by the 
 Revised Statutes (sec. 1612). But this does 
 not extend to a case where Congress has made 
 a specific provision for the pay of an officer or 
 grade of officers or enlisted men in the Marine 
 Corps. (Bristow v. U. S., 47 Ct. Cls., 46.) 
 
 Where the pay of a new grade of officers is 
 specifically prescribed by statute, the general 
 prox-ision of law that the pay of the Marine Corps 
 shall be the same as the pay of the Army can 
 not be construed so that the specific pay shall 
 be either increased or diminished by reason of a 
 change of Anny pay. (Bristow v. U. S., 47 
 Ct. Cls., 46.) 
 
 The fact that section 1612 provides that 
 enlisted men of the Marine Corps shall receive 
 the same pay, grade for grade, as enlisted men 
 of the Army, does not add grades to the Marine 
 Corps to correspond to additional grades added 
 to the Army, especially where the law has 
 made specific provision for the different 
 grades in the Marine Corps and the numl^er of 
 men to be assigned to each. The law adding 
 to the Armv a grade of enlisted men unknown 
 to the Marine Corps does not make a similar 
 grade in the Marine Corps. (8 Comp. Dec, 419.) 
 
 The Army appropriation act of April 27, 
 1914 (38 Stat., 353), provided, first, that no 
 
 officer or enlisted man absent from duty on 
 account of disease resulting from Ms o^v^l 
 intemperate use of drugs or alcoholic liquors 
 or other misconduct shall receive pay for such 
 period of absence; and second, that an enlist- 
 ment shall not be regarded as complete until 
 the soldier shall ha\e made good any time in 
 excess of one day lost by unauthorized absences. 
 Held, that the first provision is one affecting 
 the pay to be received by officers and enlisted 
 men in the Army, and therefore is made 
 applicable to the Marine Corps by section 1612, 
 Revised Statutes; but that the second pro- 
 vision is one affecting the term of enlistment in 
 the Ai-my, and does not apply to the Marine 
 Corps, as the term of enlistment in the Marine 
 Corps is governed by the laws and regulations 
 of the Navy under section 1621, Revised 
 Statutes. (Comp. Dec, June 3, 1914, 160 S. 
 and A. Memo., 3250. See later law, above 
 quoted,relatingspecifically to the Marine Corps.) 
 
 Enlisted men of the Marine Corps are not 
 entitled to the bounty provided by act of July 
 29, 1861, section 5 (12 Stat., 280), for the men 
 "enlisted in the regular forces." (11 Op. 
 Atty. Gen., 100, Sept. 29, 1864.) 
 
 The act of June 16, 1890, entitled "An Act 
 to prevent desertions from the Army, and for 
 other purposes," provided in section one that 
 there shall be retained from the pay of each 
 enlisted man of the Army the sum of $4 per 
 month for the fh'st year of his enlistment, 
 which shall not be paid to him until his dis- 
 charge from the service and shall be forfeited 
 unless he served honestly and faithfully to the 
 date of his discharge ; and that sums so retained 
 shall be treated as deposits upon which interest 
 shall be paid. This section of the act was 
 applicable to the Marine Corps by force and 
 effect of section 1612, Revised Statutes. 
 Section 2 of the same act related to the terms 
 of enlistment in the Anny, and provided that 
 soldiers discharged prior to expiration of en- 
 listment shall not be entitled to the allowances 
 provided in section 1290, Revised Statutes. 
 This section held not applicable to the Marine 
 Corps [although sec. 1290, Revised Statutes, 
 relating to transportation on discharge, did 
 apply to the Marine Corps]. Section 3 of said 
 act, relating to the arrest of deserters by civil 
 ofticers, and section 4, authorizing the President 
 to permit enlisted men to purchase their 
 discharge in time of peace, also held inapplic- 
 able to the Marine Corps. (19 Op. Atty. Gen. ,616.) 
 
 Sections 1305-1308, Revised Statutes, which 
 provide for the deposit with any Anny pay- 
 master by any enlisted man of the Army of his 
 savings, have no application to the Marine 
 Corps, and the enlisted men of that corps have 
 not the right or privilege of making such de- 
 posits with a paymaster of their branch of the 
 service. Special legislation referring only to 
 the Army, like these sections of the Revised 
 Statutes, would not ordinarily be construed 
 to apply to the Marine Corps any more than to 
 the Nav^. (25 Op. Atty. Gen., 190. See later 
 law above noted relating to the Marine Corps.) 
 
 Section 1216, Revised Statutes, as amended 
 (act Mar. 29, 1892, 27 Stat., 12), which em- 
 powers the President to grant a certificate of 
 merit to an enlisted man of the Army who has 
 
 distinguished himself in the service and has 
 
 944 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1612. 
 
 been recommended therefor by the command- 
 ing officer of the regiment or the cliief of the 
 corps to which such man belongs, applies only 
 to enlisted men of the Army, and not to mem- 
 bers of the Marine Corps who have been simi- 
 larly commended. Section 1612 is not applica- 
 ble to the special reward for gallant ser^ice, so 
 as to bring the Marine Corps ^^ithin section 
 1216. There is a corresponding pro\ision in 
 section 1407, Revised Statutes, which was 
 expressly amended to include enlisted men of 
 the Marine Corps. (24 Op. Atty. Gen., 579. 
 See note to sec. 1407, R. S.} 
 
 Navy laws held appUcable to Marine 
 Corps. — Officera and enlisted men of the 
 Marine Corps are not entitled to reimburse- 
 ment for loss of personal effects in accordance 
 with laws relating to the Army; but are entitled 
 to such reimbursement under the same circum- 
 stances as if thev were in the Navy proper. 
 (3 Comp. Dec, 659; Harllee v. U. S., 5l"Ct. 
 Cls., 342; compare 4 Comp. Dec, 26. See 
 note to sec. 290, R. S., and see act of Oct. 6, 
 1917, 40 Stat., 389.) 
 
 Section 1563, Re^^sed Statutes, authorizing 
 advances of pay to persons in the naval ser\T.ce, 
 has been invariably construed by the account- 
 ing officers as applj-ing to Marine officers. 
 (Reid V. U. S., 18 Ct. Cls., 625.) 
 
 Navy laws held inapplicable to Marine 
 Corps. — -Officers of the Marine Corps have not 
 been considered as "appointed to the Navy," 
 within the meaning of the constructive ser\dce 
 pro\ision in the Na^^ personnel act of March 3, 
 1899, section 13 (30 Stat., 1007\ pro\'iding that 
 "all officers, including warrant officers, who 
 have been or may be appointed to the Navy 
 from civil life shall, on the date of appoint- 
 ment, be credited, for computing their pay, 
 with five years' service." (23 Comp. Dec, 508.) 
 
 An officer of the Marine Corps attached to a 
 seagoing vessel is not entitled to the ration 
 allowed by Revised Statutes, section 1578, to 
 a naval officer so attached. Such officer of 
 the Marine Corps is by the Re\'ised Statutes 
 (section 1612), subjected to the pro\isions of 
 Re\-ised Statutes, section 1269, which restricts 
 allowances to officers of the Army. Commis- 
 sioned officers of the Army are not allowed 
 rations, although they are allowed to noncom- 
 missioned officers and enlisted men by section 
 1293. The only advantage which the commis- 
 sioned officer has in this respect is the right 
 to purchase rations for his own use at cost when 
 
 serving in the field. (R. S. 1145). (Reid v. 
 U. S., 18Ct. Cls., 625.) 
 
 Section 1578, authorizing rations, is part of 
 chapter 8 of Title XV, Re\'ised Statutes, 
 entitled "Pay, emoluments, and allowances.'' 
 The enactments regulating the pay of officers 
 of the Marine Corps are contained in chapter 9 
 of the same title. Congress, by placing in 
 another chapter the enactments relating to pay 
 of the Marine Corps, indirectly but uiunis- 
 takably indicated its intent to confine allow- 
 ances made by chapter 8 to the naval officers 
 whose pay is fixed by the provisions of that 
 chapter, xdz, those enumerated in section 
 1556, Re\ised Statutes. While section 1563, 
 authorizing advances to persons in the naval 
 Ber\'ice employed on distant stations, is part 
 of chapter 8, and has nevertheless been con- 
 strued as applj-ing to Marine officers, the 
 language of that section, which does not speak 
 of "officers" but of "persons employed in the 
 naval service," is different fi-om that in section 
 1578, and it would appear that Congress in- 
 tended to give the marines the benefit of the 
 legislation in section 1563. (Reid v. U. S., 18 
 Ct. Cls., 625.) 
 
 The act of Februaiy 9, 1889 (25 Stat., 657), 
 to pro\'ide for the deposit of sa\ing8 by "seamen 
 of the United States Na\^," does not extend 
 to enlisted men of the Marine Corps. (19 Op. 
 Atty. Gen., 616. See note to sec. 1621, R. S.; 
 and see later law noted above, relating to 
 deposits by enlisted men of the Marine Corps. ) 
 
 Pay grades, enhsted men. — See Army 
 law of June 4, 1920, quoted above under "Pay 
 of enlisted men." 
 
 By Marine Corps orders No. 18, June 25, 
 1920, the enlisted grades of the Marine Corps 
 are gi'ouped as follows: First grade, sergeants 
 major and quartermaster sergeants; second 
 grade, first sergeants, gunnery sergeants, drum 
 major; third grade, none; fourth gi'ade, ser- 
 geants; fifth grade, corporals; sixth grade, 
 privates first class; seventh grade, driunmers, 
 trumpetere, and privates. (27 Comp. Dec. , 101.) 
 
 The following table shows the rates of pay of 
 the above mentioned grades as fixed bv the 
 Army act of June 4, 1920 (41 Stat., 761),' plus 
 the 20 per cent increase temporarily authorized 
 by act of May 18, 1920 (41 Stat., 761), and 
 additional pay for specialists as prescribed in 
 that act, as published by the Comptroller of 
 the Treasury (27 Comp. Dec, 35 and 101; see 
 Army laws quoted above): 
 
 Grado. 
 
 Base pay. 
 
 Add 20 per 
 
 cent increase 
 
 as of first 5 
 
 grades. 
 
 Less than 
 
 five years' 
 
 service. 
 
 After five 
 
 years' 
 sen-ice. 
 
 After ten 
 
 years' 
 
 service. 
 
 After fifteen 
 
 years' 
 
 service. 
 
 After twenty 
 
 years' 
 
 service. 
 
 1st 
 
 $74. 00 
 53.00 
 45.00 
 45.00 
 37.00 
 35.00 
 30.00 
 
 $14. 80 
 
 10.60 
 
 9.00 
 
 9.00 
 
 7.40 
 
 e) 
 
 $88. 80 
 63.60 
 54.00 
 54.00 
 44.40 
 35. 00 
 30.00 
 
 $96. 20 
 68.90 
 58. 50 
 58. 50 
 48.10 
 38. 50 
 33.00 
 
 $103. 60 
 74.20 
 63.00 
 63.00 
 51.80 
 42.00 
 36.00 
 
 $111. 00 
 79.50 
 67.50 
 67.50 
 55.50 
 45.50 
 39.00 
 
 1 $118. 40 
 
 2d 
 
 1 84. 80 
 
 3d 
 
 1 72. 00 
 
 4th 
 
 72.00 
 
 5th 
 
 59. 20 
 
 6th 
 
 49.00 
 
 7th 
 
 42.00 
 
 
 
 I The enlisted men of the first, second, and ttiird grades are entitled to the additional ration and the transportation 
 pri\'ileges under sections 5 and 12 of the act of May 18, 1920. 
 
 ' Enlisted men of sixth and seventh grades may be rated as specialists and receive extra pay therefor per month, as 
 follows: First class, $25; second class, $20; third class, $15; fourth class, $12; fifth class, $8; sixth class, $3. 
 
 945 
 
Sec. 1612. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 Pay not reduced by act June 4, 1920. — 
 The effect of the saving clause in section 4 of 
 the Army reorganization act of June 4, 1920 
 (41 Stat., 7()2i, that "nothing in this section 
 shall operate to reduce the pay which any 
 enlisted man is now receiving during his cur- 
 rent enlistment and while he holds his present 
 grade, " is to grant to enlisted men of the Army 
 and Marine Corps the right to continue to 
 receive the higher rates of pay they were 
 receiving on June 4, 1920, under earlier laws 
 then in force, until the termination or exten- 
 sion of the enlistment in which serving on that 
 date, if they continue in the same grade during 
 such period, but not during service under an 
 extended enlistment which may be extended 
 on or after June 4, 1920, nor after a change in 
 grade. (27 Comp. Dec, 31.) 
 
 Additional pay as specialists. — ^The pro- 
 vision of section 4 of the Army reorganization 
 act of June 4, 1920 (41 Stat., 761), that enlisted 
 men of the Army of the sixth and seventh 
 grades may be rated as specialists and receive 
 extra pay therefor at certain specified rates 
 per month, is applicable to the Marine Corps 
 in 80 far as the Secretary of War may apply 
 said provisions of law to the infantry of the 
 Army. (27 Comp. Dec, 31.) 
 
 Extra-duty pay.— On and after July 1 , 1920, 
 the payment of any extra-duty pay to enlisted 
 men of the Army and Marine Corps is prohibited 
 notwithstanding provisions in Army and Navy 
 appropriation acts authorizing such payments, 
 section 4 of the Army reorganization act of 
 June 4, 1920 (41 St5,t., 761), having repealed 
 from July 1, 1920, all laws or parts of laws pro- 
 viding for extra-duty pay. (27 Comp. Dec, 31.) 
 
 The term ' ' extra-duty " is obviously a relative 
 one, and it can not be determined that an 
 enlisted man was performing extra duty with- 
 out a complete understanding of the scope of 
 the duties which he might properly be expected 
 to perform in accordance with hiis enlistment 
 without recei^ang extra pay. A member of 
 the hospital corps was as such bound to per- 
 foi-m, %vithout extra pay, any of the duties 
 which pertain to that service. Duties incident 
 to the conduct of hospitals as efficient insti- 
 tutions, including maintenance of telephone 
 and telegraph offices, when necessary in the 
 judgment of the military authorities, were part 
 of the current duties of enlisted men of the 
 hospital corps and did not entitle them to extra 
 pay any more than any other necessary activ- 
 ities which the successful administration of 
 the hospital might demand. (U. S. v. Ross, 
 239 U. S., 530.) 
 
 From an early date provision has lieen made 
 for the pajTnent of enlisted men on extra duty 
 at "constant labor of not less than ten days." 
 It may be assumed that section 1235 of the 
 Re\'ised Statutes, requiring written orders, 
 was not intended to preclude a recovery of 
 extra-duty pay where there had been a detail 
 to extra duty by competent authority, although 
 not in writing, and extra duty entitling the 
 enlisted man to extra pay under the statute 
 had actually been performed. However, where 
 an enlisted man was not in fact assigned on 
 extra duty, there being no such detail in 
 accordance with regulations or the statute as 
 there should have been if he was considered 
 
 to be on extra duty, and where it was the judg- 
 ment of the War Department that the man was 
 not on extra duly, this Departmental judgment 
 will not ])e overruled unless there is a clear 
 abuse of the necessarv official discretion. 
 (U. S. V. Ross, 239 U. S., 5,30. ) 
 
 It is well settled that the mere designation 
 of duty as "special duty" can not of itself 
 determine the character of the duty and deprive 
 the man of his rights to compensation therefor 
 if in fact the duty was ' 'extra duty . ' ' Whether 
 it was special duty or extra duty is to be de- 
 termined from the facts themselves. (Scheid 
 r. U. S., 52 Ct. Cls., 247.) 
 
 The re(}uireraent of the statutes that details 
 for extra duty must be in writing was not 
 intended to preclude a recovery of extra-duty 
 pay to which a man might be entitled under the 
 law where it appeared that he had been detailed 
 to such extra duty by competent authority, and 
 that the extra duty had been actually per- 
 formed. A provision in the Marine Corps 
 "vSystem of Accountability" could not in any 
 manner serve to abridge a right which a man 
 might have under the law. (Scheid v. U. 8., 
 52 Ct. Cls., 247.) 
 
 The appropriation in the Army act of March 
 3 1885 (23 Stat., 359), for enlisted men on extra 
 duty, was limited in its provisions to the 
 Quartermaster Corps, but the other language 
 in the same section, amendatory of section 
 1287, Revised Statutes, had no relation to the 
 Quartermaster Corps but was permanent legis- 
 lation applicable to the rest of the service as 
 well as to that corps. (Scheid v. U. S., 52 Ct. 
 Cls., 247.) 
 
 A serrreant in the Marine Corps performed the 
 duty of schoolmaster at the Marine Barracks 
 for 15 years; he received, in addition to his pay 
 as sergeant, one dollar per month from each 
 apprentice in accordance ^vith an agreement 
 in their enlistment papers prescribed by the 
 Navy Department. Held, that he was not 
 entitled to extra-duty pay from the Govern- 
 ment. Section 1287, Revised Statutes, pro- 
 viding extra-duty pay for the Army, and Army 
 Regulations issued under authority of the ap- 
 propriations for extra-duty, do not extend to 
 one who performs the duties of a schoolmaster 
 and who receives extra pay from his pupils. 
 fFugitt V. U. S., 28 Ct. Cls., 253.) 
 
 Longevity pay, enlisted men. — Section 4 
 of the Armv reorganization act of June 4, 1920 
 (41 Stat., 761), repeals, from July ], 1920, all 
 preceding legislation providing for continuous- 
 ser\'ice pay in the Army and Marine Corps, 
 except in so far as the saving clause in said 
 section may prevent the reduction of the pay 
 of enlisted men, continuous-service pay being 
 '•pay" within the term as used in the saving 
 clause. (27 Comp. Dec, 31.) 
 
 In computing the longevity pay of an enlisted 
 man now in the Marine Corps, or of any person 
 who hereafter enlists or reenlists in the corps, 
 under the act of June 4, ]920 (41 Stat., 761), 
 all prior service on the active list in the Army, 
 Navy, and Marine Corps, whether in con- 
 secutiv^e or dissevered periods, shall be counted. 
 (27 Comp. Dec, 170.) 
 
 The act of June 4, 1920 (41 Stat., 761\ re- 
 pealing all laws providing for continuous-service 
 
 946 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1612. 
 
 pay, substituted in lieu thereof longevity pay. 
 (27 Comp. Dec, 170.) 
 
 Under the Army reorganization act of June 4, 
 1920 (41 Stat., 761), the service which by 
 existing law is held to be the equivalent of 
 Army service in counting length of service for 
 increase of pay or for retirment is service in 
 the Marine Corps and service in the Navv. 
 (27 Comp. Dec, 170, citing acts Feb. 24, 1881, 
 21 Stat., 346; Sept. 30, 1890, 26 Stat., 504; and 
 June 22, 1906, and Mar. 2, 1907, 34 Stat., 451 and 
 1217.) 
 
 The provisions of sections 1281 and 1282, 
 Revised Statutes, relating to increased pay for 
 length of service and retention of pay until 
 expirations of enlistment, form part of the legis- 
 lation regulating the pay of enlisted men in 
 the Army and are applicable to the Marine 
 Corps by force of section 1612. (19 Op. Atty. 
 Gen., 616, 623.) 
 
 Reenlistment pay; honorable discharge 
 gratuity.— So much of section 1612 as provided 
 that euhsted men of the Marine Corps shall be 
 entitled to receive the same bounty for reen- 
 listing, usually designated as honorable dis- 
 charge gratuity, as enlisted men of like grades 
 in the infantry of the Army was repealed and 
 superseded by section 7 of the act of June 4, 
 1920 (41 Stat., 836). (27 Comp. Dec, 101; see 
 laws quoted above relating to Marine Corps.) 
 
 The provision of section 27 of the Army re- 
 organization act of June 4, 1920 (41 Stat., 775), 
 that an enlistment allowance equal to three 
 times the monthly pay of a soldier of tJie 
 seventh grade shall be paid to every soldier 
 who reenlists for a period of three years has no 
 application to the Marine Corps, but the reen- 
 listment pay, otherwise known as honorable 
 discharge gratuity, of members of the Marine 
 Corps, depends entirely upon laws providing 
 therefor in effect prior to June 4, 1920, and the 
 provisions of section 7 of the naval appropria- 
 tion act of June 4, 1920 (41 Stat., 836). (27 
 Comp. Dec, 31.) 
 
 Under the provisions of the naval appropria- 
 tion act of June 4, 1920, section 7, enlisted men 
 of the Marine Corps reenlisting on or after June 
 4, 1920, for four years, three years, or two years 
 are entitled to receive four months, three 
 months, or two months extra pay, respectively, 
 at the rate of pay they were receiving at .the 
 time of honorable discharge. (27 Comp. Dec, 
 101; see sec. 1573, R. S., and note thereto.) 
 
 An enlistment in the Marine Corps after an 
 honorable discharge from the Army or Navy is 
 not a "reenlistment" ^vithin the meaning of 
 section 7 of the act of June 4, 1920 (41 Stat., 
 836); the term "reenlistment" signifies an en- 
 try into the same branch of the service from 
 which honorably discharged. (27 Comp. Dec, 
 170.) 
 
 An enlistment in the Marine Corps after an 
 honorable discharge from the Army is a "re- 
 enlistment " within the meaning of section 1284, 
 Revised Statutes, pro\T.ding longevity pay in 
 the Army, made applicable to the Marine 
 Corps by section 1612, Revised Statutes. 
 Such enlisted man is entitled to the same ben- 
 efits that he would be entitled to if his reenlist- 
 ment had been in the Army. (Walton v. U. S., 
 31 Ct. Cls., 196.) 
 
 Bounties on reenlistment in the Marine 
 Corps were, by virtue of section 1612 of the Re- 
 vised Statutes, based upon the law governing 
 bounties to the enlisted men of the Army con- 
 tained in the Army appropriation act of May 
 11, 1908 (35 Stat., 110). (21 Comp. Dec, 848.) 
 The bounty payable to enlisted men of the 
 Marine Corps upon reenlistment should be 
 computed on all items of pay, as distinguished 
 from allowance, which they may be receiving 
 at the time of discharge. (21 Comp. Dec, 
 848.) 
 
 Additional pay for special qualifica- 
 tions, details, etc. — There is no law that 
 provides for cooks in the Marine Corps or for an 
 increase of pay for extra duty of privates of that 
 corps detailed in service as cooks. (8 Comp. 
 Dec, 419.) 
 
 Enlisted men of the Marine Corps regularly 
 detailed as messmen, whether for duty afloat 
 or ashore, may be paid such additional com- 
 pensation as provided for by regulations ap- 
 proved and promulgated by the Secretary of 
 the Navy; Congress having appropriated for 
 such additional compensation under the cap- 
 tion, "Pay, Marine Corps," but not having 
 fixed the amount. These appropriations do 
 not create the grade of messman in the Marine 
 Corps, but do pro\dde for additional pay to 
 men regularly detailed to perform the duties 
 of messmen. If additional pay were provided 
 for like service in the Army, to which it would 
 be assimilated, 'the additional pay would be 
 fixed by law and would govern without regard 
 to the President's order; but there is no grade 
 in the Army to which the additional compen- 
 sation of an enlisted man in the Marine Corps 
 regularly detailed to perform the duties of mess- 
 man can be assimilated . (13 Comp. Dec, 13C.) 
 Under annual appropriation acts, and Exec- 
 utive Order of September 18, 1906, relating to 
 additional pay for enlisted men of the Marine 
 Corps regularly detailed as messmen, held that 
 where a man is properly detailed as messman 
 for a month or more, as prescribed by said 
 order, he is entitled to the additional pay even 
 though, by reason of illness or other cause, he 
 is lawfully absent from duty for a part of the 
 month. (13 Comp. Dec, 574:) 
 
 Enlisted men of the Marine Corps who have 
 qualified as expert riflemen are entitled to the 
 additional monthly pay allowed enlisted men 
 of the infantry of the Army, which extra pay 
 shall cease at the close of the first subsequent 
 target year in which such riflemen shall fail to 
 qualify. (Comp. Dec, Sept. 26, 1905, 55 S. 
 and A. Memo., 7; modifying 11 Comp. Dec, 
 788.) 
 
 The act of May 11, 1908 (35 Stat., 110), pro- 
 viding "that hereafter enlisted men now quali- 
 fied or hereafter qualifying as marksmen shall 
 receive two dollars per month; as sharpshoot- 
 ers, three dollars per month; as expert riflemen, 
 live dollars per month; * * * all in addi- 
 tion to their pay, under such regulations as the 
 Secretary of War may prescribe," was made 
 applicable to the Marine Corps bv section 1612, 
 Revised Statutes. (21 Comp. Dec, 123 and 
 848.) 
 
 The extra pay provided for gun pointers and 
 gim captains is extra pay for special service. 
 
 947 
 
Sec. 1612. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 and pa\able only when under detail for the 
 
 specialk-rvice. (21 Comp. Dec, 811, 814.) 
 
 The enlisted men of the Marine Corps derive 
 their right to additional coni])ensation or allow- 
 ante as messnien, sjun captains, and »un point- 
 ers from the annual ai)propriation arts and the 
 regulations made in pureuance thereof. (21 
 ("omp. i)ec., 811, 812; citing 13 Comp. Dec, 
 136.) 
 
 Under the Navy Regulations of 1913, article 
 4442 ( 1 1 ), "all enlisted men of the United States 
 Marine Corps regularly detailed as gun pointers. 
 Navy mail clerks, gun captains, messmen, or 
 signalmen, or holding good conduct medals, 
 pins, or bars, shall receive the same extra com- 
 pensation in addition to their monthly pay as 
 is now or may hereafter be allowed enlisted 
 men of the Navy." (See 21 Comp. Dec, 812.) 
 
 Retained pay. — Section 1281, KoAised Stat- 
 utes, and amendments thereto, authorizing cer- 
 tain increases in the pay of enlisted men during 
 their first enlistment in the Army, such in- 
 creased pay to be " considered as retained pay " 
 and not to be paid until discharge, were held 
 applicable to the Marine Corps. (See 19 Op. 
 Attv. Gen., 616, 623; U. S. v. Kingsley, 138 
 U. S., 87, 24 Ct. Cls., 219.) Said section of the 
 Re\'ised Statutes was expressly repealed by act 
 of May 11, 1908 (35 Stat., 110.) 
 
 By act of Jime 4, 1920, section 27, relating to 
 the Army (quoted above imder "Enlistment 
 and reenhstment allowance"), provision was 
 made for an allowance to soldiers dinging their 
 first enlistment, pajTnent thereof "to be de- 
 ferred until honorable discharge." (See deci- 
 sions noted above under " Reenhstment pay; 
 honorable discharge gi-atuity.") 
 
 Increased pay for sea duty and foreign 
 shore service. — In computing the 20 per cent 
 additional pay for foreign sei-vice of enlisted 
 men of the Marine Corps, the additional 
 monthly pay allowed as expert riflemen should 
 be included. (Comp. Dec, Sept, 26, 1905, 55 
 S. and A. Memo., 67.) 
 
 Enlisted men of the Marine Corps are not 
 entitled to have the additional compensation 
 authorized for marksmanship qualifications 
 included in their pay proper upon which is com- 
 puted the 20 per cent increase for sea duty; but 
 are entitled to have such increase computed on 
 pay for good conduct medals. (21 Comp. 
 Dec, 848.J 
 
 Enlisted men of the Marine Corps on sea duty 
 are not entitled to have the additional compen- 
 sation of gun pointers and gun captains included 
 in their "pay proper" upon which is computed 
 the 20 per cent increase of pay for foreign shore 
 duty. (21 Comp. Dec, 811.) 
 
 Officers of the Marine Corps are not entitled 
 to ha\e the additional compensation as aid, or 
 the allowance for mounts, included in their pay 
 proper upon which is computed the ten per cent 
 increase for sea duty. (21 Comp. Dec, 848.) 
 
 An officer of the IVIarine Corps was entitled, 
 under section 1612, Re\'ised Statutes, and the 
 act of May 11, 1908, to the increased pay for 
 8er\dce bejond seas allowed by the act of June 
 30, 1902, for service in Porto Rico, notwith- 
 standing the provisions in the appropriation 
 acts of 1906 and 1907, excepting Hawaii and 
 Porto Rico from the operation of the said act of 
 1902. Those exceptions were temporary, and 
 
 did not have a general and permanent applica- 
 tion to all future appropriations. The Ann y act 
 of May 11, 1908, having provided that "increase 
 of pay for service beyond the limits of the 
 states comprising the Union and the territories 
 of the United States contiguous thereto shall be 
 as now provided by law," the law contained 
 in the act of 1902, and not the exception con- 
 tained in the appropriations of 1906 and 1907, 
 was thereby continued in effect. (U. S. v. 
 Vulte, 233 tJ. S., 509; but see later act of Aug. 
 24, 1912, quoted above under Army laws re- 
 lating to foreign shore ser\-ice.) 
 
 Pay and allowances defined.— See cases 
 noted above, under "Increased pay for sea duty 
 and foreign shore ser\dce"; see also notes to 
 sections 1558 and 1615, Revised Statutes. 
 
 WTiether extra pay for special assignments 
 (gun pointers and gun captains) is an "allow- 
 ance" or "in the nature of an allowance," or 
 "pay" in the broad meaning of that term, it 
 is not "pay proper " within the meaning of the 
 act of June 30, 1902 (32 Stat., 512), relating to 
 foreign shore service pay. (21 Comp. Dec, 
 811.) 
 
 Mileage has been held both by the courts and 
 the accounting officers to be an allowance. 
 (13 Comp. Dec, 333.) 
 
 Extra duty pay is not "pay" within the 
 meaning of the saving clause contained in the 
 act of June 4, 1920, section 4 (41 Stat., 761), 
 that "nothing in this section shall operate to 
 reduce the pay which any enlisted man is now 
 receiving" etc. (27 Comp. Dec, 31, 36. 
 Compare 27 Comp. Dec, 31, holding that act of 
 June 4, 1920, sec. 4, 41 Stat., 761, repealing 
 Army laws as to extra duty pay, applied to 
 Marine Corps.) 
 
 Continuous service pay is "pay" within the 
 teiTtt as used in the sa^dng clause of the Army 
 act approved June 4, 1920, section 4 (41 Stat., 
 761). (27 Comp. Dec, 31.) 
 
 The Ai-my act of March 3, 1885 (23 Stat., 
 350), providing for reimbursement of officers 
 and enlisted men of the militaiy ser^nce for 
 private property lost in the service, does not 
 pro\dde an "allowance " to officers of the Army 
 which, by virtue of section 1612, Revised 
 Statues, can be available to officers of the Ma- 
 rine Corps. (Harllee v. U. S., 51 Ct. Cls., 342.) 
 
 The term "allowances" has acquired an ex- 
 tended meaning, but it has its limitations. It 
 has been held that allowance does not include 
 commutation for fuel and quarters, and is lim- 
 ited to compensation for services other than 
 pay (citing Landers v. U. S., 30 Ct. Cls., 311; 
 Sherburne's Case, 16 Ct. Cls., 491; McLean v. 
 U. S., 226 U. S., 374, 382, 45 Ct. Cls., 95). Pay 
 and allowances as used in the statutes relate to 
 compensation for serAdce. The allowance may 
 at times take the form of reimbursement, but 
 it is reimbursement for something expended in 
 ser\-ice and the amount of allowance is fixed or 
 regulated by statute or regulation which has 
 the effect of a statute. The term can not be 
 applied to the case of a soldier claiming under 
 the act of 1885 for losses sustained for which, 
 under that act, he may recover. The act is one 
 of indemnity; it does not purport to pay for 
 service. (Harllee v. U. S., 51 Ct. Cls., 342.) 
 
 See note below xmder "Mileage and trans- 
 portation." 
 
 948 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1612. 
 
 Mileage and transportation. — -Officers of 
 the Marine Corps are entitled, under section 
 1612, Re\'ised Statutes, to the same allowance 
 for sea travel with troops as is provided for offi- 
 cers of the Army by act of June 12, 1906 (34 
 Stat., 246, 247), and such allowance is payable 
 fi'om appropriations for pay and allowances of 
 officers of the Marine Corps. (13 Comp. Dec, 
 332.) 
 
 The act of June 10, 1896 (noted above, under 
 laws relating to the Marine Corps), which pro- 
 vides that officers of the Marine Corps traveling 
 under orders, without troops, shall be allowed 
 the same mileage as was then allowed officers of 
 the Navy traveUng without troops, applies both 
 to travel within the United States and to travel 
 abroad; and an officer of the Marine Corps so 
 traveling is entitled to mileage at the rate of 
 eight cents per mile for travel in the United 
 States, and to actual and reasonable expenses 
 only for travel abroad. (8 Comp. Dec, 123; 
 see note to sec 1566, R. S.) 
 
 The act of June 10, 1896, is applicable only to 
 officers of the Marine Corps traveling without 
 troops; and officers of the Marine Corps travel- 
 ing with troops are governed by the provisions 
 of section 1612 and the Army act of June 12, 
 1906 (34 Stat., 246, 247). In other words, an 
 officer of the Marine Corps traveling under or- 
 ders without troops is entitled to the same 
 mileage as was allowed an officer of the Navy 
 on June 10, 1896; but when traveling under 
 orders with troops he is entitled to the same 
 travel allowance as an officer of the Army trav- 
 eling with troops. (Comp. Dec, Mar. 7, 1907, 
 73 S. and A. Memo., 248; 13 Comp. Dec, 333.) 
 
 There is no law providing for traveling ex- 
 penses for officers of the Army or Marine Corps 
 traveling with troops within the United States. 
 (Comp. Dec, Mar. 7, 1907, 73 S. and A. Memo., 
 248.) 
 
 The expenses necessarily growing out of the 
 transportation and subsistence of the marines 
 detailed for the Navy Department exhibit at 
 the World's Columbian Exposition may be 
 paid from the fund provided for the IMarine 
 Corps and its subsistence. (20 Op. Atty. Gen., 
 577.) 
 
 The provisions of section 1290, Revised 
 Statutes, relating to allowance for transporta- 
 tion from the place of discharge to the place of 
 enlistment, form part of the legislation regulat- 
 ing the pay of enlisted men in the AiTQy, and 
 are applicable to the Marine Corps by force of 
 section 1612, Revised Statutes. (19 Op. Atty. 
 Gen., 616, 623.) 
 
 Revised Statutes, section 1290, as amended 
 by act of Fel>ruary 27, 1877 (19 Stat., 240, 244), 
 provided that "when a soldier is discharged 
 from the service, except by way of punishment 
 for an offense, he shall be allowed transporta- 
 tion and subsistence from the place of his dis- 
 charge to the place of his enlistment, enroU- 
 nent, or original muster into the service. The 
 Grovemment may furnish the same in kind, 
 but in case it shall not do so, he shall be al- 
 lowed travel pay and commutation of subsis- 
 tence, for such time as may be sufficient for 
 him to travel from the place of discharge to the 
 place of his enlistment, enrollment, or original 
 muster into the service, computed at the rate 
 of one day for every twenty miles. " Held, 
 
 that one who originally enlisted at Washington, 
 and was discharged at Mare Island, California, 
 receiving travel pay and commutation of sub- 
 sistence from Mare Island to Washington, but 
 did not return to Washington, reenlisting at 
 Mare Island as a private; and in the course of 
 his service was returned to Washington, where 
 he was discharged at his own request, was not 
 entitled to his commutation of travel and sub- 
 sistence to the place of his second enlistment, 
 as his service was practically a continuous one, 
 and his second discharge occurred at the place 
 of his original enlistment. (U. S. v. Thornton, 
 160 U. S., 654.) 
 
 A private in the Marine Corps, discharged 
 from the service as a person of bad character 
 and unfit for service, by order of the Secretary 
 of the Navy through the commandant of the 
 corps, without court-martial or other competent 
 military proceeding, does not forfeit trans- 
 portation and subsistence from the place of his 
 discharge to the place of his enlistment, enroll- 
 ment, or original muster into the service, under 
 the provisions of section 1290, Revised Statutes, 
 which makes such allowance in all cases other 
 than discharge from the service "by way of 
 punishment for an offense. " That section con- 
 templates a discharge as a punishment, inflicted 
 by the judgment of a coiut- martial or other 
 nulitaiy authority. \Miile unfitness for service 
 and general bad character may justify the 
 proper authorities in ordering the discharge 
 of the soldier as a worthless member of the serv- 
 ice, such a discharge can not be considered as 
 "a punishment for an offense. " The question 
 whether such punishment must necessarily be 
 inflicted by the judgment of a court-martial, 
 not presented by the record in this case and no 
 opinion expressed on it. (U. S. v. Kingsley, 
 138 U. S., 87; 24 Ct. Cls. 219.) 
 
 The effect of section 6 of the naval appropria- 
 tion act of June 4, 1920 (41 Stat., 836), is to 
 extend to enlisted or enrolled men of the Navy 
 and Marine Corps, having war service, who, 
 since November 11, 1918, have reenlisted in 
 the Navy or Marine Corps, or who have ex- 
 tended their enlistments either before or after 
 that date, or may hereafter do so, the right to 
 receive the war service payment of $60 pro- 
 vided by the act of February 24, 1919 (40 Stat., 
 1151), and the travel allowance on discharge, 
 under the act of February 28, 1919 (40 Stat., 
 1203); such persons having been theretofore 
 excluded from the benefits of said acts. (27 
 Comp. Dec, 31.) 
 
 Longevity pay, oflS.cers. — See section 1600, 
 Revised Statutes, and note thereto. 
 
 The words "cmrent yearly pay," as used in 
 section 1262, Revised Statutes, allowing in- 
 creased pay for periods of five years' service, 
 mean the original salary of the officer's rank 
 plus any additions previously earned for 
 length of service; and the ten per cent increase 
 for periods of five years' service should accord- 
 ingly be computed upon the regular salary of 
 the officer's rank plus previous increases for 
 length of service. (U. S. v. Tyler, 105 U. S., 
 244.) 
 
 The act of June 30, 1882 (22 Stat., 118), 
 directing that the longevity increase provided 
 for in section 1262, Revised Statutes, should be 
 "computed on the yearly pay of the gi'ade," 
 
 949 
 
Sec. 1612. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 was passed for the express purpose of com- 
 uianuiug a method of computation which 
 would render inapplicable the construction 
 adopted by the Supreme Court in the Tyler 
 case (^ above noted ). Accordingly, a subsequent 
 enactment, allo\\'ing ofiicers of the Navy ten 
 per cent increase of their "current yearly 
 pay" for each term of five years' service, 
 should be construed as requiring that such 
 increase be computed on the yearly pay of 
 their grade, in accordance with the rule pre- 
 scribed by the act of 1882, and not upon their 
 base pay plus previous longevity increases, in 
 accordance with the rule laid down in the 
 Tvler case. (Plummer ;;. U, S., 224 U. S., 137, 
 144.) 
 
 As to allowance of constructive ser^dce in 
 computing length of service for longevity 
 increases in the Marine Corps, see note above, 
 under ''Na\^ laws held inapplicable to Marine 
 Corps;" and note below, iinder "Pay clerks." 
 
 Quarters. — Commutation for quarters, fuel, 
 and light not furnished to an officer or enlisted 
 man can not be paid unless authorized by some 
 statute or regulation; that is, the right to 
 commutation does not aiise automatically 
 but must be based upon some specific provision 
 of laM'. /Smith v. U. S., 47 Ct. Cls., 313.) 
 
 Commissioned officers of the Army on duty 
 where quarters can not be furnished are entitled 
 to commutation by \'irtue of the Army Regu- 
 lations; but there is no such pro\'ision for 
 enlisted men. (Smith v. U. S., 47 Ct. Cls., 313.) 
 
 In the absence of express appropriation 
 therefor, the hiring of quarters for marines on 
 duty in Washington was forbidden bv act of 
 June 22, 1874 (18 Stat., 144), which provided 
 that "hereafter no contract shall be made for 
 the rent of any building, or part of any building, 
 in Washington, not now in use by the Govern- 
 ment, to be used for the purposes of the Govern- 
 ment until an appropriation therefor shall have 
 been made in terms by Congress." (Smith v. 
 U. S.,47Ct.Cl8.,313.} 
 
 See note under section 1613, Revised Statutes. 
 
 Pay clerks. — By virtue of the act of June 24, 
 1910 (36 Stat., 625), clerks to assistant pay- 
 masters in the Marine Corps are entitled to the 
 same pav and allowances provided by the act 
 of June's, 1916, section 9 (39 Stat., 170), for 
 paj-masters' clerks in the Army; that is, to the 
 pay and allowances of a second lieutenant in 
 the Army. (23 Comp. Dec, 508.) 
 
 Clerks to assistant paj-masters in the Marine 
 Corps are not entitled to credit for constructive 
 8er\'ice in computing their pav under the act of 
 June 3, 1916, section 9 (39 Stat., 170), which 
 entitled them to the pay and allowances of a 
 second lieutenant by virtue of the act of June 
 24, 1910 (36 Stat., 625), givdng them the same 
 pay and allowances as Army pa\nnasters' 
 clerks; although they were previously en- 
 titled to constructive service in computing their 
 pay under the act of March 3,1911 (36 Stat., 
 1044\ giving them the pay and allowances of 
 warrant officers in the Navy, by virtue of the 
 said act of June 24, 1910. Warrant officers in 
 the Navy appointed from civil life were en- 
 titled to constructive service, but second 
 lieutenants in the Army appointed from ci%'il 
 life were not. (23 Comp. Dec, 508. See note 
 
 above, under "Navy laws held inapplicable to 
 Marine Corps." i 
 
 Gunnery sergeants. — ^The grade of "gun- 
 nery sergeant" was first established in the 
 Marine Corps by the Navy personnel act of 
 March 3, 1899, section 23 (30 Stat., 1009) and 
 the pay was specifically fixed by thg same 
 statute at §35 per month, while other sergeants 
 received only $25. Subciuently the pay of 
 sergeants in the Anny was advanced by act of 
 May 11, 1908 (35 Stat., 106, 109), to $45 per 
 month. There was no statute specifically 
 changing the pay of gunneiy sergeants. Held, 
 that gunnery sergeants of the Marine ( 'orps did 
 not become entitled to $45 per month under the 
 Army appropriation act. (Bristow v. U. S., 
 47 Ct. Cls., 46. But see act of Aug. 22, 1912, as 
 to pay of gunnery sergeants, noted above under 
 laws relating to the Marine Corps, i 
 
 Forfeiture of pay. — Neither the pay, lodg- 
 ing, nor clothing of enlisted maiines taken by 
 the civil authorities for violation of law can be 
 withheld during their confinement and absence 
 from their military stations. The existing law 
 (act July 11, 1798, sec. 2), authorizes the 
 President to fix the pay and subsistence of the 
 noncommissioned officers, privates, and musi- 
 cians of the Marine Corps. Under this author- 
 ity it would be competent for the President not 
 merely to determine the quantum of pay but to 
 prescribe the conditions on which it shall be 
 received. In the absence of such a regulation 
 by him, or under his authority, recourse must ])e 
 had to the implied contract entered into on the 
 enlistment; this is a stipulation for pajTnent, 
 subsistence, and clothing, in consideration of 
 8er\'ices to be performed. A willful failure to 
 perform this ser\ace would seem to exempt the 
 Government from the oliligation wliich would 
 have resulted from its performance. But it 
 does not follow that an enlisted marine, because 
 taken by the civil authorities for \'iolation of 
 the laws, has \dolated them; he is presumed to 
 be innocent until proved to be guilty- In 
 cases where conviction takes place and is fol- 
 lowed by a sentence which incapacitates him 
 from the fulfillment of his duty as a marine, 
 from the time of such couAiction his pay might 
 perhaps, properly be withheld; but in such a 
 case it would be better for the Government to 
 discharge the convicted marine from the service 
 and thus terminate his claim for compensation. 
 (2 Op. Atty. Gen., 396. See cases noted under 
 sections 1556 and 1569, Re\ised Statutes.) 
 
 A private in the ^larine Corps discharged 
 from the service as a person of bad character 
 and unfit for service, by order of the Secretary 
 of the Navy through the commandant of the 
 corps, although without court-martial or other 
 competent military proceeding, forfeits thereby 
 his retained pay "under the provisions of Re- 
 vised Statutes 1281, which provides that such 
 retained pay of an enlisted man "shall be for- 
 feited unless he serves honestly and faithfully 
 to the date of discharge." (U. S. v. Kingsley, 
 138 U. S, 87; see also note above, under "Mile- 
 age and transportation.") 
 
 "Pay of two grades. — WTiere a captain in 
 the Marine Corps acts as brevet lieutenant- 
 colonel and is paid as such, he can not during 
 the same period receive either the pay or al- 
 
 960 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1613. 
 
 lowances attached to the duties of captain. 
 (U. S. V. Freeman, 25 Fed. Cas. No. 15,163.) 
 
 Deposits of savings. — The act of February 
 9, 1889 (25 Stat., 657), proAading for the deposit 
 of savings by "seamen of the United States 
 Navy," does not extend to enlisted men of the 
 Marine Corps. (19 Op. Atty. Gen., 616.) 
 
 Sections 1305-1308, Re\dsed Statutes, which 
 provide for the deposit ^rith any Army pay- 
 master by any enUsted man of his savings, have 
 no ai)plication to the Marine Corps, and the en- 
 listed men of that corps have not the right or 
 privilege of making such deposits with a pay- 
 master of their branch of the service. (25 Op. 
 Atty. Gen., 190.) 
 
 If the act of 1889, for the benefit of enlisted 
 men and petty officers of the Navy, could not 
 properly be construed to apply to the Marine 
 Corps, which is primarily a component part of 
 the Navy, sections 1305-1308 of the Re-vised 
 Statutes,' for the benefit of enlisted men of the 
 Army, can not be so construed. (25 Op. Atty. 
 Gen., 190.) 
 
 See later law quoted above with respect to 
 deposit of savings by enlisted men of the Marine 
 Corps. 
 
 Sale of fuel. — The pro\ision in the act of 
 June 12, 1906 (34 Stat., 250), amending the pro- 
 vision relative to furnishing fuel to officers of 
 the Army in the act of June 18, 1878 (20 Stat., 
 150), by limiting the amount to be piu-chased 
 to the "actual personal necessities" of commis- 
 sioned officers on the active list as certified to 
 by them, is applicable to commissioned officers 
 of the Marine Corps on the active list. (13 
 Comp. Dec, 27.) 
 
 Illegal pajonents. — Payments made to offi- 
 cers of the Marine Corps under an act which had 
 been repealed by a later law relating to the 
 Army, although not construed by the account- 
 ing officers as repealed, are binding upon the 
 Government and can not be recalled to the 
 
 pecuniary disadvantage of any officer; but no 
 erroneous practice of however long standing can 
 justify the allowance of a claim, contested by 
 the Government in a suit, contrary to what is the 
 true meaning and intent of the statute. (U. S. 
 V. Freeman, 3 How., 656. For other cases, see 
 note to sec. 236, R. S.) 
 
 Pay of officers while out of the service. — 
 Marine Corps officers who were reduced under 
 the act of March 2, 1847, and restored under a 
 subsequent act are not entitled to pay during 
 the interval. Had it been the design of the act 
 which restored them to give them pay during 
 the interval of the reduction, as well as rank, it 
 would have been so declared. The relation 
 back was for rank, not for pay. The whole ob- 
 ject of the act was to place these officers back in 
 the service by a new commission. All princi- 
 ple is against the allow^ance of such pay. WTien 
 no service is needed, no compensation should 
 be allowed. (5 Op. Atty. Gen., 101.) 
 
 Extra allowance for disbursing money. — 
 Congress ha\'ing prohibited extra allowance or 
 compensation in any form to an officer of the 
 Army on account of the disbursing of any pub- 
 Uc money appropriated by law, held that the 
 quartermaster of the Marine Corps is not there- 
 after entitled to such extra compensation. (3 
 Op. Atty. Gen., 516; compare, U. S. v. Kuhn, 
 26 Fed. Cas. No. 15, 545.) 
 
 For other cases, see generally notes to sec- 
 tion 1556, etseq., relating to "Pay, emoluments, 
 and allowances" of the Navy; as to retired pay 
 of officers and enlisted men of the Marine Corps, 
 see note to section 1622; as to brevet pay and 
 emoluments, see note to section 1604; as to ad- 
 ditional pay allowed officers exercising higher 
 command in time of war, see note to section 
 1611; as to pay of enlisted men detained in the 
 service after expiration of enlistment, see sec- 
 tion 1422, and note thereto; as to pay of Marine 
 Band, see section 1613, and note thereto. 
 
 Sec. 1613. [Marine band.] The marines who compose the corps of musi- 
 cians known as the "Marine band" shall be entitled to receive at the rate of 
 four dollars a month, each, in addition to their pay as non-commissioned 
 officers, musicians, or privates of the Marine Corps, so long as they shall per- 
 form, by order of the Secretary of the Navy, or other superior officer, on the 
 Capitol grounds or the President's grounds. — (5 Aug., 1854, c. 268, s. 1, v. 10, 
 p. 586. 18 Aug., 1856, c. 162, s. 5, v. 11, p. 118.) 
 
 changed in part pavment for the purchase 
 of like articles. (Act Mar. 4, 1917, 39 
 Stat., 1189.) 
 Status of Marine Band. — While the Marine 
 
 "A member of the said band shall not, as an 
 indi\"idual, furnish music, or accept an 
 engagement to furnish music, when such 
 furnishing of music places him in compe- 
 tition with any civilian musician or musi- 
 cians, and shall not accept or receive 
 remuneration for furnishing music except 
 under special circumstances when author- 
 ized by the President." (Act Aug. 29, 
 1916, 39 Stat. ,612, relating to Marine Band.) 
 
 As to composition and pay of Marine Band, see 
 section 1596, Revised Statutes, and act of 
 August 29, 1916 (39 Stat., 612), quoted 
 thereunder. 
 
 Detail of musicians to companies or detach- 
 ments of marines: See section 1611, Re- 
 \'ised Statutes. 
 
 Worn-out band instruments, sewing machines, 
 machinery, and rubber tiies may be ex- 
 
 Corps was established in 1775, and its band is 
 one of the best known organizations of the char- 
 acter in the country, curiously this band has 
 never had formal statutory recognition. Drums 
 and fifes were provided for the Navy as long ago 
 as 1794(1 Stat., ;^50), while in 1798 "musicians, " 
 then understood to mean drummers and fifers, 
 were given to the Marine Corps (1 Stat., 590). 
 Section 1596, Re\ased Statutes, describes the 
 organization of the Marine Corps as consisting 
 of a certain number of officers, noncommissioned 
 officers, and privates, together \Hth a drum 
 major, a principal musician, 30 musicians, 60 
 drummers, and 60 fifers; but no mention is 
 made of a musical organization until the enact- 
 
 951 
 
Sec. 1613. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 nipnt of the laws now condensed in section IG13 
 of the Revised Statutes. The only other pro- 
 vision looking even indirectly to a musical 
 organization is that of section 1596. (Bond v. 
 U. S., 21 Ct. Cls., 457; see also, Kepplert). U. S., 
 27 Ct. Cls., 482.) 
 
 Not a "Navy" band. — The provisions of 
 the act of May lli, 1908 (35 Stat., 153), wliich 
 proliibit "Na\^ bands or members thereof" 
 from receiving remuneration for furnishing 
 music outside the limits of military posts, when 
 the furnishing of such music places them in 
 competition Anth local musicians, do not apply 
 to the Marine Band, notwithstanding that simi- 
 lar proAOsion for "Army bands" was made by 
 act of May 11, 1908 (35 Stat., 106, 110). (27 Op. 
 Atty. Gen.,90.) 
 
 The words, "Na\'y bands," do not include 
 the Marine Band, and in the servdce would not 
 ordinarily be understood to include a band 
 made up of marines. _ (27 Op. Atty. Gen., 90.) 
 
 Section 1613, Revised Statutes, recognizes 
 the band as having a particular title of its o^vn, 
 viz, "Marine Band." In construing subse- 
 quent legislation it should be assumed that 
 Congress appreciated the significance of the 
 fact that this organization was generally known 
 as the "Marine Band," as recognized by said 
 section. (27 Op. Atty. Gen., 90.) 
 
 It is, however, undoubtedly true that at- 
 tendant circumstances might show an intention 
 on the part of Congress to include the Marine 
 Band by the term "Navy bands." No such 
 circumstances exist in this case, in which the 
 statute restricting such bands in furnishing 
 music outside is quasi penal and should be 
 strictly construed. (27 Op. Atty. Gen., 90.) 
 
 See later statute quoted above with specific 
 reference to the Marine Band. 
 
 Private detailed to duty with Marine 
 Band. — A private in the Marine Corps was as- 
 signed to duty with the Marine Band at the 
 time of his enlistment, and remained and 
 performed duty with the band, as a private, 
 until he was rated as a musician. Held, that 
 he was one of "the musicians who compose the 
 organization known as the Marine Band," 
 while so detailed; and having performed on 
 the Capitol Grounds and on the President's 
 grounds under proper orders, was entitled to the 
 additional pav pro\'ided for by Revised Stat- 
 utes, section 1613. (U.S. v. Bond, 124 U.S. , 301.) 
 
 The additional compensation given by sec- 
 tion 1613 to the marines who compose the 
 organization kno^^'n as the Marine Band, is 
 not restricted to those who are formally rated as 
 musicians, but extends to all marines attached 
 to the band so performing. (Bond v. U, S., 21 
 Ct. Cls., 457.) 
 
 The statute does not say that the ' ' members of 
 the Marine Band" shall receive extra compen- 
 sation, for no such Vjand is known to the law; 
 but the pay is given to those ' ' marines who com- 
 pose the corps of musicians known as the 
 Marine Band." The pliiaseology of section 
 1613 is extremely peculiar. It seems to recog- 
 nize the fact that marines other than those 
 rated as musicians performed in the band. 
 (Bond V. V. S., 21 Ct. Cls., 457.) 
 
 Pay of Marine Band. — See laws noted 
 imder section 1596, Revised Statutes, as to the 
 composition and pay of the Marine Band. 
 
 Prior to the act of March 3, 1899, section 24 
 
 i30 Stat . , 1009), relating to the pay of the Marine 
 iand, the pay of enlisted men in the Marine 
 Corps was assunilated to Army pay, which was 
 less than that pro\dded in said section; and 
 it was doubtless for that reason that Congress 
 added the last clause to that section, viz, 
 "such musicians of the band to have no in- 
 creased pay for length of service. " Under this 
 section, held that as to musicians of the band 
 of the Marine Corps, section 1284, Revised 
 Statutes, providing for pay for length of service 
 to eulisted men of the Army, is superseded, and 
 that an enlisted man in the Marine Corps, 
 member of said band, who was retired after 
 30 years' service, is not entitled to recover 
 the additional pay under section 1284, allowed 
 soldiers for reenlistment. (Giacchetti v. U. S., 
 39 Ct. Cls., 381.) 
 
 Under existing statutes relating to the Marine 
 Band, the question of the emoluments of that 
 excellent organization is imfortunately in- 
 volved in some doubt. (Keppler v. U. S., 
 
 27 Ct. Cls., 482, 485.) 
 
 The band at the Military Academy, popularly 
 known as the West Point Band, was once one 
 of fifteen bands, all upon the same footing; 
 but since the act of March 3, 1869, has been 
 the only military band in the Army of the 
 United States. Members of that band are 
 allowed the pay of engineer soldiers; it is well 
 settled that what the officers and enlisted men 
 of the Army receive, the officers and enlisted 
 men of the Marine Corps shall likewise receive. 
 Members of the Marine Band, under section 
 1612, Revised Statutes, are entitled to the pay 
 of "enlisted men of like grades in the infantry 
 of the Army.'' The only enlisted men of like 
 grades in the infantry of the Army were, at the 
 tinie of the enactment, the members of the West 
 Point Band. Held, that members of the Marine 
 Band are entitled to the same retained pay as 
 received by members of the West Point Band 
 and engineer soldiers. (Patyschke v. U. S.,31 
 Ct. Cls., 384.) 
 
 Allowances of second leader. — The 
 
 "second leader" of the Marine Band is entitled 
 by statute to the allowances of a sergeant major. 
 By Army Regulations sergeants major are 
 entitled to quarters at the rate of one room, 
 and by the act of March 2, 1907 (34 Stat., 1167), 
 they are entitled to heat and light for the same. 
 (Smith V. U. S., 47 Ct. Cls., 313.) 
 
 No quarters being available for the second 
 leader at the Marine Barracks, held that he is 
 not entitled to commutation therefor, not being 
 a commissioned officer, but only ranking as an 
 enlisted man, and no statute or regulation 
 providing for commutation of quarters for 
 enlisted men of the Army. (Smith v. U. S., 
 47 Ct. Cls., 313.) 
 
 By act of May 4, 1898 (30 Stat., 388), an 
 appropriation was made for the hire of quarters 
 for certain enlisted men employed in the office 
 of the Marine Corps in Washington, including 
 the leader of the band, but no appropriation 
 was made for quarters for the second leader, 
 and in the absence of express appropriation 
 therefor quarters can not be hired for him. 
 (Smith V. U. S., 47 Ct. Cls., 313.) 
 
 952 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1615. 
 
 Sec. 1614. [Deduction for hospitals.] The Secretary of the Navy shall 
 deduct from the pay due each of the officers and enlisted men of the Marine 
 Corps at the rate of twenty cents per month for every officer and marine, to be 
 applied to the fund for Navy hospitals. — (2 Mar., 1799, c. 36, s. 2, v. 1, p. 729. 
 26 Feb., 1811. c. 26, s. 1, v. 2, p. 650.) 
 
 Similar provision is made by section 4808, 
 
 Re\ised. Statutes. _ 
 See section 1586, Revised Statutes, and note 
 
 thereto, as to medicine and medical 
 
 attendance. 
 A. clerk to a commandaiit of a navy yard 
 is neither an officer, enlisted man, nor marine, 
 and the Secretary of the Navy is not authorized 
 
 Sec. 1615. [Rations of enlisted men.] The non-commissioned officers, 
 privates, and musicians of the Marine Corps shall, each, be entitled to receive 
 one Navy ration daily. — (1 July, 1797, g. 7, s. 6, v. 1, p. 524. 11 July, 1798, 
 c. 72, s. 2, V. 1, p. 595.) 
 
 under section 1614, to deduct 20 cents per 
 month from his pay. Such a clerk is not 
 entitled to reimbursement for medicines and 
 medical attendance. (1 Comp. Dec, 289. 
 But see 25 Comp. Dec, 745, in which clerks 
 to commandants were held to be officers of the 
 Navy in another connection. ) 
 
 Amendment to this section was made by act 
 of March 4, 1917 (39 Stat., 1189), under 
 "Provisions, Marine Corps," as follows: 
 "Hereafter no law shall be construed to 
 entitle enlisted men on shore duty to any 
 rations or commutation therefor other than 
 such as are now or may hereafter be al- 
 lowed enlisted men in the Army: Provided, 
 That when it is impracticable or the ex- 
 pense is found greater to supply marines 
 serving on shore duty in the island posses- 
 sions and on foreign stations with the Army 
 ration, such maiines may be allowed the 
 Navy ration or commutation therefor. " 
 (It had pre\iously been pro\'ided by a 
 clause in the aimual naval appropriation 
 act of March 2, 1891, and subsequent 
 years, under "Provisions, Marine Corps," 
 that "no law shall be construed to entitle 
 enlisted marines on shore duty to any 
 rations or commutation therefor other than 
 such as now are or may hereafter be al- 
 lowed enlisted men in the Army. " Com- 
 mencing with the act of Mar. 3, 1901, there 
 was added to this clause in the annual 
 appropriation act, the following proviso: 
 "That when it is impracticable or the 
 expense is found greater to supply marines 
 serving on shore duty in the island posses- 
 sions and on foreign stations with the Army 
 ration, such marines may be allowed the 
 Navy ration or commutation therefor. " 
 These clauses were thereafter repeated 
 annually, until the act of Mar. 4, 1917, 
 above quoted, in which they were made 
 permanent legislation by the use of the 
 word "hereafter.") 
 
 Amendment was also made to this section by 
 act of July 11, 1919 (41 Stat., 154). 
 
 By act of May 18, 1920, section 5 (41 Stat., 602), 
 it was pro\'ided "that all noncommis- 
 sioned officers of the Army of grade of color 
 sergeant and above as fixed by existing 
 Army Regulations and noncommissioned 
 officers of the Marine Corps of correspond- 
 ing grades shall be entitled to one ration or 
 commutation therefor in addition to that to 
 which they are now entitled. The com- 
 mutation value shall be determined by the 
 President on July 1 of each fiscal year, and 
 
 for the current fiscal year the value shall be 
 computed on the basis of 55 cents per ra- 
 tion. " By section 13 of the same act C^l 
 Stat., 604), it was provided that this pro- 
 \'ision shall remain effective until June 30, 
 1922, unless sooner amended or repealed. 
 By act of June 4, 1920, section 4 (41 Stat., 
 761), establishing new grades and pay for 
 enlisted men (noted under sec. 1612, R. S., 
 under "Army laws applicable to Marine 
 Corps"), it was provided that "the tem- 
 porary allowance of rations authorized by 
 section 5" of the act approved May 18, 
 1920, "shall apply only to enlisted men of 
 the first three grades. " 
 "Commutation of rations to recruiting parties, 
 and enlisted men traveling on special 
 duty, at such rate as the Secretary of the 
 Navy may prescribe, " is authorized by 
 clause in the annual naval appropriation 
 act under "Provisions, Marine Corps." 
 (Act June 4, 1920, 41 Stat., 831.) 
 Rations of enlisted men of the Navy: See 
 sections 1579-1585, Revised Statutes, and 
 notes thereto. 
 Rations are "allowance" and not 
 "pay." — -The clause referring to additional 
 ration or commutation therefor, in section 5 of 
 the act of May 18, 1920 (41 Stat., 602), which, 
 under section 4 of the Army reorganization act 
 of June 4, 1920 (41 Stat., 761), shall apply only 
 to enlisted men of the Army and Marine Corps 
 of the first three grades, became effective from 
 May 18, 1920, such additional ration being an 
 allowance, and not one of the increases of pay 
 which, under said act of May 18, 1920, became 
 effective from January 1, 'l920. (27 Comp. 
 Dec, 31.) 
 
 Commutation defined. — Commutation in 
 the military or naval service is money paid in 
 substitution of something to which an officer, 
 sailor, or soldier is entitled. Being regulated 
 by statute, commutation can not be allowed by 
 inferior authority. (Jaegle v. U. S., 28 Ct. 
 Cls., 133.) 
 
 Under a usage in the Marine Corps, musicians 
 at their option were allowed to take the cost 
 price of their rations, instead of being subsisted 
 on the rations issued. This payment to musi- 
 tians of the cost price of rations was not commu- 
 
 963 
 
Sec. 1616. 
 
 P/. 2. REVISED STATUTES. 
 
 The Navy. 
 
 tation, but was \artually a purchase of the 
 rations from them at the invoice price, and a 
 musician who elected to take the price instead 
 of subsistence in kind was not thereafter en- 
 titled to the commutation price of a Navy- 
 ration prescribed In- Re\'isea Statutes section 
 lo85, not\\'ithstandin;j; that the money paid to 
 him was not the commutation price of the Navy 
 ration prescribed by sections 1580 and 1581, 
 Revised Statutes, but was the actual cost of an 
 inferior ration which during his period of service 
 was issued to the corps. (Jaegle v. U. S., 28 
 Ct. Cls., 133.) 
 
 Commutation is not necessarily equal to the 
 value of the thing for which it is a substitute, 
 but is supposed to be in the general average of 
 cases a fair equivalent. (Jaegle v. U. S., 28 
 Ct. Cls., 133.) 
 
 The principle which governs the commuta- 
 tion of rations in lieu of subsistence is that 
 commutation will not be allowed where sub- 
 
 sistence in kind is provided by the Govern- 
 ment. (Jaegle v. U. S., 28 Ct. Cls., 133.) 
 
 Rations of officers. — An officer of the Ma- 
 rine Corps attached to a seagoing vessel is not 
 entitled to the ration allowed by Re\'ised 
 Statutes, section 1578, to a naval officer so at- 
 tached. Such an officer is, by section 1612, 
 subjected to the provisions of section 1269. 
 Commissioned officers of the Army are not 
 allowed rations, although they are allowed to 
 the noncommissioned officers and enlisted 
 men by section 1293. (Reid v. U. S., 18 Ct. 
 Cls., 625.) 
 
 Subsistence of enlisted men. — The ex- 
 penses necessarily grooving out of the transpor- 
 tation and subsistence of marines detailed for 
 the Navy Department's exhibit at the World's 
 Columbian Exposition may be paid from the 
 fund provided for the Marine Corps and its 
 subsistence. (20 Op. Atty. Gen., 577.) 
 
 Sec. 1616. [Service on armed vessels.] Marines may be detached for service 
 on board the armed vessels of the United States, and the President may de- 
 tach and appoint, for service on said vessels, such of the officers of said corps as 
 he may deem necessary. — (1 July, 1797, c. 7, s. 4, v. 1, p. 523. 11 July, 1798, 
 c. 72, ss. 1, 3, V. 1, p. 595.) 
 
 By act of March 3, 1909 (35 Stat., 773), making 
 appropriations for pay of the Marine Corps 
 for the ensuing fiscal year, it was pro\aded 
 "that no part of the appropriations herein 
 made for the Marine Corps shall be ex- 
 pended for the purpose for which said ap- 
 propriations are made imless officers and 
 enhsted men shall serve as heretofore on 
 board all battleships and armored cruisers, 
 and also upon such other vessels of the navy 
 as the President may direct, in detach- 
 ments of not less than eight per centmn of 
 the strength of the enlisted men of the 
 Navy on said vessels." (This proviso was 
 not repeated in subsequent years.) 
 "When a force of marines is embarked on a na- 
 val vessel, or vessels, as a separate organi- 
 zation, not a part of the authorized com- 
 plement thereof, the authority and powers 
 of the officers of such separate organization 
 of marines shall be the same as though such 
 organization were sersdng at a navy yard 
 on shore, but nothing herein shall be con- 
 strued as impairing the paramount au- 
 thority of the commanding officer of any 
 naval vessel over the vessel under his com- 
 mand and all persons embarked thereon." 
 (Act Aug. 29, 1916, 39 Stat., 586.) 
 Power of Congress to regulate duty of 
 Marine Corps. — The Attorney General enter- 
 tains no doubt as to the constitutionality of the 
 clause contained in the naval appropriation act 
 of March 3, 1909 (above quoted). If the Presi- 
 dent, as Commander in Chief, desires to direct 
 the JIarine Corps to perform any fimction 
 which shall involve the application of the ap- 
 propriation therein made, he must direct that 
 oflieers and enlisted men of the corps shall serve 
 as theretofore on board all Ijattleships and 
 armored cruisers, and u])on such other vessels 
 as he may direct, in detachments of not less 
 
 than eight per centum of the strength of the 
 enlisted men of the Navv on said vessels. (27 
 Op. Atty. Gen., 259.) 
 
 Inasmuch as Congress has power to create or 
 not to create, as it shall deem expedient, a Ma- 
 rine Corps, it has power to_ create such corps and 
 make appropriation for its pay, but pro\'ide 
 that such appropriation shall not be available 
 unless the corps l^e employed in some desig- 
 nated way. (27 Op. Atty. Gen., 259.) 
 
 See cases noted imder Constitution, Article 
 II, section 2, clause 1, as to powers of the Presi- 
 dent as Commander in Chief. 
 
 Accounts of marines carried on vessels; 
 serving on shore. — Marines doing duty in 
 Cuba, whose pay accounts were kept on the 
 paATnaster's books of a vessel for convenience, 
 but who were never attached to the vessel for 
 naval duty, were not entitled to share in the 
 bounty awarded said vessel. Ne^'er ha\'ing 
 served on the vessel, they could not be con- 
 sidered to be temporarily absent therefrom 
 within the meaning of section 4633, Revised 
 Statutes, which pro\dded that "no officer or 
 other person who shall have been temporarily 
 absent on duty from a vessel on the books of 
 which he continued to be borne, while so ab- 
 sent, shall be deprived, in consequence of such 
 absence, of any prize money to which he would 
 other\vise be entitled." (Engagement off San- 
 tiago Bay, 36 Ct. (^Is., 200.) 
 
 The words "detached" and "detach" are 
 undoubtedly used in this section in their proper 
 military significance. Marines on board the 
 armed vessels of the United States are for the 
 time being out of their normal relations to the 
 Marine Corps and removed from the direct com- 
 mand of those officers who would otherwise ex- 
 ercise such direct command under the law. 
 (File 21277, Mar. 31, 1906; see note to sec. 1617.) 
 
 954 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1619. 
 
 Sec. 1617. [Command of navy yards or vessels.] No officer of the Marine 
 Corps shall exercise command over any navy-yard or vessel of the United 
 States.— (30 June, 1834, c. 132, s. 4, v. 4, p. 713.) 
 
 Commandants of navy yards to be selected 
 ' ' fi'om officers not below the gi-ade of com- 
 mander." (Sec. 1542, R. S.; see note to 
 that section.) 
 The President is authorized "to formulate 
 appropriate rules goveiTiing assignments to 
 command of vessels and squadroas." 
 (Act Mar. 3, 1901, 31 Stat., 1133; see note 
 to sec. 1529, R. S.) 
 Purpose of section. — It seems clear that the 
 act of June 30, 1834, embodied in this section, 
 was passed to avoid the danger lest an officer of 
 marines, who might be altogether ignorant of 
 na\dgation and inexperienced in nautical 
 matters, should find himself accidentally the 
 officer of highest rank on board a ship and claim 
 the command by -virtue of his rank. Navy 
 yards were evidently included in the terms of 
 the act of 1834 because the objections to the 
 exercise of command over them on the part of 
 officers of marines, although less in degree, were 
 the same in kind as those existing to the exercise 
 of like command bv such officers over ships of 
 war. (File 21277, Mar. 31, 1906.) 
 
 Rank of officer iramaterial.— Whatever 
 the rank of a marine officer, he is always subject 
 to the orders of the captain of the sliip or the 
 commandant of the navy yard on or at which he 
 serves. (File 21277, Mar. 31, 1906.) 
 
 Authority of higher officers of corps. — 
 Certain higher officers of the corps not only may 
 legally but are eAddently intended by this law 
 to exercise some measure of authority over 
 those officers and enlisted men who may be 
 "detached" for service on board vessels or at 
 navy yards; as they may and indeed must 
 exercise a like measm'e of authority over any 
 of the forces who may be detached for service 
 with the Army under section 1621. (File 
 21277, Mar. 31, 1906.) 
 
 Jurisdiction at naval stations. — It will 
 be noted that this statute refers only to navy 
 
 yards, and does not apply to naval stations 
 which are not navy yards, and moreover that it 
 does not prohibit the exercise of command 
 within a ship or within a nary yard by officers 
 of marines; it merely provides that they shall 
 not have cormnand "over" the ship or "over" 
 the yard. (File 21277, Mar. 31, 1906.) 
 
 "No officer of the Marine Corps shall exercise 
 command over any naval station of the United 
 States." (Navy. Regs., 1913, art. 4101, par. 6. 
 See also file 5530, Nov. 8, 1906.) 
 
 While section 1617 refers only to navy yards 
 and vessels, and "does not apply to naval 
 stations which are not navy yards," neverthe- 
 less the ]\Iarine Corps is at all times subject to 
 the regulations for the government of the 
 Navy, except in the single contingency of 
 being detached and assigned temporarily to 
 duty with the Army; and as the Navy Regula- 
 tions provide that no officer of the Marine Corps 
 shall exercise command over any station, held 
 that a marine officer could not exercise com- 
 mand over the naval station, Hawaii, by suc- 
 cession, in the absence of line officers of the 
 Navy. (File 5530, Nov. 8, 1906.) 
 
 Marine brigade, Philippine Islands. — • 
 The officer commanding the marine brigade in 
 the PhiUppines should have fuU command over 
 so much of this force as is not "detached" for 
 duty on board any armed vessel or at any navy 
 yard. There is no legal impediment to his 
 exercising authority for administrative or 
 disciplinary purposes over the detachments 
 which are on duty at navy yards, or in gi^'ing 
 him control for such purposes over all the 
 marines on duty in the Philippines. (File 
 21277, Mar. 31, 1906.) 
 
 The officer in command of the marine brigade 
 in the Philippines is subject to the orders of the 
 commander of the Philippine squadron, as well 
 as of the commander in chief of the Asiatic 
 fleet. (File 21277, Mar. 31, 1906.) 
 
 Sec. 1618. [Marines substituted for landsmen.] The President may substitute 
 marines for landsmen in the Navy, as far as he may deem it for the good of the 
 service.— (3 Mar., 1849, c. 103, s. 1, v. 9, p. 377.) 
 
 "The Secretary of the Navy is authorized, in 
 his discretion, to establish such grades and 
 ratings as may be necessary for the proper 
 administration of the enlisted personnel of 
 the Navy and Marine Corps." (Act June 
 4, 1920, sec. 7, 41 Stat., 836.) 
 
 The transfer of marines to the Hospital Corps of 
 the Navy is authorized by act of August 29, 
 1916 (39 Stat., 572), which also authorizes 
 similar transfers from the Hospital Corps 
 to the Marine Corps. 
 
 Sec. 1619. [Duty on shore.] The Marine Corps shall be liable to do duty in 
 the forts and garrisons of the United States, on the sea-coast, or any other 
 duty on shore, as the President, at his discretion, may direct. — (11 July, 1798, c. 
 72, s. 6, V. 1, p. 596.) 
 
 See notes to sections 1616, 1617, and 1621, 
 ReAdsed Statutes. 
 Norraal duty of marines. — This section 
 indicates what are the duties of the Marine 
 
 Corps under normal conditions contemplated 
 by its organization. (File 21277, Mar. 31, 1906.) 
 
 54641°— 22 61 
 
 955 
 
Sec. 1621. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 Sec. 1620. [Regulations.] The President is authorized to prescribe such 
 military regulations for the discipline of the Marine Corps as he may deem 
 expedient. — (30 June, 1834, c. 132, s. 8, v. 4, p. 713.) 
 
 As to regulations in general, see sections 161 
 
 and 1547, Revised Statutes, and notes 
 
 thereto. 
 Ab to regulations governing the ^^arine Corps, 
 
 see section 1621, Revised Statutes, and 
 
 note thereto. 
 Post exchanges. — Navy regulations author- 
 izing the establishment of post exchanges in 
 the Marine Corps conflict vith no law. A 
 post exchange so established is not a voluntary 
 association but an institution established by 
 the Government for the benefit of commissioned 
 
 officers and enlisted men. A disbursing officer 
 of the Marine Corps who receives money from 
 enlisted ^-\(in under such regulations is as re- 
 sponsible for it as for any other money confided 
 to his care. The Government has such an 
 interest in the funds of the post exchange as to 
 justify a deduction of the pay of the disbursing 
 officer in charge in order to, reimburse the 
 enlisted men for their losses incurred by reason 
 of his neglect and want of care. (Woog v. 
 U. S.,48Ct. Cls.,80.) 
 
 Sec. 1621. [When detached for service with the Army.] The Marine Corps 
 shall, at all times, be subject to the laws and regulations established for the 
 government of the Navy, except when detached for service with the Army by 
 order of the President; and when so detached they shall be subject to the 
 rules and articles of war prescribed for the government of the Army. — (11 July, 
 1798, c. 72, s. 4, v. 1, p. 595. 30 June, 1834, c. 132, s. 2, v. 4, p. 713.) 
 
 nineteen hundred and sevent-een: Provided, 
 That officers of the Marine Corps tempora- 
 rily promoted to higher grades in any of 
 the forces of the Army under the provisions 
 of this Act shall not thereby vacate their 
 permanent appointments or commissions 
 or be prejudiced in their relative lineal 
 standing in the Marine Corps: Provided 
 further, That temporary vacancies in the 
 Marine Corps caused by the ajipointment 
 of officers to higher grades in the Army 
 shall be temporarily filled in the same 
 manner as is now prescribed by law: And 
 provided further, That the temporary pro- 
 motions herein authorized shall contmue 
 only while such officers are detached for 
 duty Mdth the Army. " (Act Jan. 12, 191<), 
 40 Stat., 1054.) 
 See section 1135, Revised Statutes, as to sup- 
 plies and transportation for marine detach- 
 ments cooperating with land troops. 
 The Secretary of War was authorized and di- 
 rected to transfer to the Secretary of the 
 Navy, for the use of the Marine Corps 
 without payment therefor, such reserve 
 stock of clothing, arms, equipment, and 
 other necessary military supplies, invento- 
 ried at the cost to the Army, and not to 
 exceed in the aggregate $7,000,000, as the 
 same may from time to time be requisi- 
 tioned. (Act Feb. 25, 1919, 40 Stat., 1174.) 
 Jurisdiction of the Secretary of the 
 Navy. — The Secretary of the Navy is the 
 organ through which the President, who is 
 commander in chief, makes known his will to 
 the Navy. AVhether the Marine Corps shall 
 be doing service on shipboard or on shore, the 
 President's orders may properly pass thi'ough 
 the Secretary of the Navy to it, except where 
 the corps shall have been incorporated with 
 the Army for a given service on land. (1 Op. 
 Atty. Gen., 380.) 
 
 The Marine Corps belonging to the naval 
 establishment, and the orders issued by the 
 Secretary of the Navy being, in contemplation 
 
 Amendment to this section was made by act of 
 August 29, 1916 (39 Stat., 651), now em- 
 bodied in act of June 4, 1920 (41 Stat., 
 787-812), prescribing new Articles of War, 
 article 2 of which provides that "the 
 follomng persons are subject to these 
 articles and shall be understood as included 
 in the term 'any person subject to military 
 law,' or 'persons subject to military law,' 
 whenever used in these articles: * * * 
 (c) Officers and soldiers of the Marine Corps 
 when detached for service with the armies 
 of the United States by order of the Presi- 
 dent: Provided, That an officer or soldier 
 of the Marine Corps when so detached may 
 be tried by military court-martial for an 
 offense committed against the laws for the 
 
 fovernment of the naval service prior to 
 is detachment, and for an offense com- 
 mitted against these articles he may be 
 tried by a naval court-martial after such 
 detachment ceases. " 
 
 By act of August 29, 1916 (39 Stat., 573), it was 
 pro\'ided that "officers and enlisted men 
 of the Medical Department of the Navy, 
 serving with a body of marines detached 
 for service mth the Army in accordance 
 with the provisions of section sixteen 
 himdred and twenty-one of the Revised 
 Statutes, shall, while so serving, be subject 
 to the rules and articles of war prescribed 
 for the government of the Army in the 
 same manner as the officers and men of the 
 Marine Corps while so serving. " 
 
 •'Commissioned officers of the Marine Corps, 
 detached for duty with the Army imder 
 the provisions of section sixteen hundred 
 and twenty-one. Revised Statutes, shall be 
 eligible, in the same manner as officers of 
 the Regular Army, for temporary promo- 
 tion to higher gi-aaes in any of the forces 
 provided by the Act entitled 'An Act to 
 authorize the President to increase tem- 
 porarily the ^rilitary Establishment of the 
 United States, ' approved May eighteenth, 
 
 966 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1621. 
 
 of law, the orders of the President, it follows 
 that the Secretary may suspend, modify, or 
 rescind any order issued by the commandant 
 of the corps or any subordinate officer, except 
 •where a direct authority has been given by 
 Congress to an officer to perform any jjarticular 
 fimction, such as to order courts-martial in cer- 
 tain cases. (1 Op. Atty. Gen., 380.) 
 
 In the absence of a special order from the 
 President detaching the Marine Corps for ser- 
 xice with the Ai'my, the office of commandant 
 of the Marine Corps is imder the direct super- 
 vision and control of the Secretary of the Navy, 
 and in the event of a vacancy its duties may 
 be performed by the Secretary or by the Acting 
 Secretajy. (28 Op. Atty. Gen., 486, 490.) 
 
 The Secretary of the Na\'y baa authority, 
 imder section 1621, to detail men to guard and 
 protect property of the Government placed on 
 exhibition at the World's Columbian Exposi- 
 tion; the cost of transportation and sustenance 
 of such detail must be paid from the fimd 
 pro\ided for the Marine Corps and its subsist- 
 ence, and is only limited by the consideration 
 of the question whether there are sufiicient 
 funds available for that purpose, as to which 
 the Secretary is the sole judge. (20 Op. Atty. 
 Gen., 576.) 
 
 Not abureau of the Navy Department. — 
 The Maiine Corps is a part of the naval estab- 
 lishment, but it is not part of the Navy Depart- 
 ment as established at the seat of government; 
 it is imder the supei-vision of an executive 
 department, but that relation to the depart- 
 ment is not the same as being part of it. The 
 Navy Department is established by section 
 415, Re\'ised Statutes, and section 419 estab- 
 lishes certain bureaus among which is to be 
 distributed the business of the department; 
 the Marine Corps is not one of the bureaus, and 
 there is no law making it a bureau, office, or 
 branch of the Navy Department. (11 Comp. 
 Dec, 558; see also 28 Op. Atty. Gen., 487, 
 where tlus question suggested but not decided.) 
 
 Jvuisdiction over Marine Corps when 
 serving alone. — This section clearly subjects 
 the Marine Corps when serving alone and with- 
 out the cooperation of either the Army or Navy, 
 to the laws and regulations established for the 
 government of the latter. (File 21277, Mar. 31, 
 1906.) 
 
 Normal status of Marine Corps part of 
 the Navy.^See notes to sections 761, 1418, 
 and 1422, ReArised Statutes. 
 
 Does the Marine Corps belong to the Army 
 or the Na\'y? Its name would seem to answer 
 this question. It is called a marine corps; its 
 characteristic action, then, is to perform duty 
 at sea; and by its primary and fundamental 
 character, therefore, it belongs to the Navy. 
 It is true that the President may order it to 
 perform service on shore; but it would still be 
 the maiine corps performing ser\dce on shore. 
 The order directing it to such service would 
 pass through the Secretaiy of the Navy, as 
 would all the President's orders while engaged 
 in Buch ser\ice, while its action was single or 
 separate fi-om tnat of the Anny. (1 Op. Atty. 
 Gen., 380); compare 2 Op. Atty. Gen., 353, 354, 
 where it is stated that the Marine Corps is 
 more assimilated to the Army proper than to 
 
 the naval branch of our military establish- 
 ment.) 
 
 The act of July 1, 1797 (1 Stat., 523), "pro- 
 viding a naval armament, ' ' assigns to each ship, 
 besides mariners, and so forth, a certain number 
 of marines. The duty of marines is exclusively 
 maritime; for sea ser\-ice only. By this act 
 they have no connection vath the Ai-my, in 
 character of duty to be performed. Here they 
 are not amphibious. The next act on the sub- 
 ject of the Marine Corps is that "for estabhshing 
 and organizing a Marine Corps" of July 11, 1798 
 (1 Stat., 594). The use of the words in this act, 
 "in addition to the present military estabhsh- 
 ment, there shall be raised a corps of marines," 
 and so forth, did not constitute the maiines in 
 fact part of the military estabhshment, nor 
 make applicable to the Maiine Corps general 
 pro\-isions relating to the Army; nor did this 
 follow from the last section of that act, author- 
 izing the President to employ the maiines on 
 shore, and so forth. The maiines were a body 
 known to the law by act of July 1, 1797, as a 
 purely maritime or naval force ; and the enlarge-^ 
 ment of that force or the assigning to them of 
 duties on shore, does not necessarily identify 
 them with the Army, and those words could 
 not have the effect of constituting as part of the 
 Army, a force governed by different rules and 
 regulations, and destined to a ser\ice unknown 
 to and incompatible with the character and du- 
 ties and ser\ice of the Army. The marines are 
 certainly a military force as weU as the Army, 
 and are in addition to the then existing miUtary 
 establishment. It is to be remarked, also, that 
 although the marines may be compelled to do 
 duty on shore, it is not part of their ordinary 
 duty but at the discretion of the President as in 
 case of the invasion of the tenitories of an ene- 
 my's coast by a naval force the seamen may be 
 compelled to do the duty of soldiers or marines 
 at the discretion of the commander of the ship 
 or squadron. (U. S. v. Kuhn, 26 Fed. Cas. No. 
 15,545, pp. 821, 822.) 
 
 The Marine Corps are at all times subject to 
 the laws and regidations established for the 
 better government of the NaA'y, except when 
 detached for ser\ice with the Army by order 
 of the President. They are organized, as the 
 name implies, for sea ser\ice, and are subject 
 to the direction and control of the Secretaiy of 
 the NaA^. (10 Op. Atty. Gen., 116, 1x8; see 
 also, 10 Op. Atty. Gen., 129.) 
 
 Although marines are not in some senses, 
 "seamen, " and their duties are in some respects 
 different, yet they are, while employed on 
 board public vessels, persons in the naval serv- 
 ice, persons subject to the orders of naval offi- 
 cers, persons under the government of the naval 
 code as to punishment, and persons amenable 
 to the Navy Department. Their very name of 
 "marines" indicates the place and nature of 
 their duties generally. And besides the anal- 
 ogies of their duties in other countries, their 
 first creation here to serve on board ships ex- 
 pressly declared them to be a part "of the 
 crews of each of said ships" (act Mar. 27, 1794, 
 1 Stat., 350, sec. 4). Their pay was also to be 
 fixed in the same way as that of seamen (sec. 6, 
 p. 351). So it was again, by the act of April 27, 
 1798 (1 Stat., 552). And they have ever since 
 
 957 
 
Sec. 1621. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 been associated with the Navy, except when 
 specially dotailed by the President for service 
 in the Army (see act July 11, 1798, 1 Stat., 595. 
 59G). Thus paid, thus serving, and thus gov- 
 erned like and with the Navy, it is certainly 
 no forced construction to consider them as em- 
 braced in the spirit of the act under considera- 
 tion by the description of persons "enlisted for 
 the Navy." (Wilkes v. Dinsman, 7 How., 89. 
 See note below, under "Navy laws held appli- 
 cable to Marine Corps.") 
 
 The act of June 30, 1834 (4 Stat., 713), adds 
 much strength to these conclusions. By sec- 
 tion 2 it provides "that the said cor])s shall at 
 all times be subject to and under the laws and 
 regulations which are or may hereafter be es- 
 tablished for the better government of the 
 Na\y," etc. That corps thus in some respects 
 became still more closely identified \vith the 
 Navy. (Wilkes v. Dinsrnan, 7 How._, 89.) 
 
 The Marine Corps occupies a position inter- 
 mediate in some respects between the Army 
 and the Na^'y. (See sees. 1616, 1619, 1620, 
 and 1621, R. S.) It would thus seern to be, 
 to some extent, an independent organization. 
 There are several sections of the Revised Stat- 
 utes which refer to it distinctively, apart from 
 the naval ser^ice (see sees. 1551, 1596, 1600, 
 1609, 1612, 1617). Notwithstanding this inter- 
 mediate character of the Marine Corps, and these 
 several proAdsions allying it in several respects 
 with the military ser\ice, held that is it properly 
 classed ^^dth and is a part of the naval service 
 of the United States. (In re Doyle, 18 Fed. 
 Rep., 369, citing 1 Op. Atty. Gen., 381; 11 Op. 
 Atty. Gen., 100; 10 Op. Atty. Gen., 118, 129; 
 In re Bailey, 2 Taney, 200.) 
 
 In various acts of Congress making appro- 
 priations the Marine Corps are frequently re- 
 ferred to as a part of the naval ser\ice, and are 
 sometimes described as "marines of the United 
 States Navy" (see 10 Stat., 100; 22 Stat., 472, 
 479, 589, 284). In the revision of the stat- 
 utes, the Marine Corps is provided for by chap- 
 ter 9 of Title XV, "The Navy," while "The 
 Army" is the subject of Title XIV. (In re 
 Doyle, 18 Fed. Rep., 369.) 
 
 The military establishment of this country 
 is divided by the general laws of the United 
 States into the Army and the Navy, and over 
 each of these one of the great heads of depart- 
 ments, called secretaries, is appointed to pre- 
 side, to manage and to administer its affairs. 
 The ^larine Corps is a military body, designed 
 to perform military services; and while they 
 are not necessarily performed on board ships, 
 their active service in time of war is chiefly in 
 the NaA^, and accompanying or aiding naval 
 expeditions. In time of peace they are lo- 
 cated in navy yards, mainly, although occa- 
 sionally they may be used in forts and arse- 
 nals belonging more immediately to the Army. 
 The statutes of the United States, in prescribing 
 the duties which they may be required to per- 
 form, have not been very clear in any expres- 
 sion which goes to show now far these services 
 are to be rendered under the control of the 
 ofRcera of the Navy or of the Army. It is clear 
 that they may be ordered to service in either 
 branch; but taking all these statutes and the 
 practice of the Government together, held that 
 they are a military body, primarily belonging 
 
 to the Navy and under the control of the head 
 of the naval department, ^\-ith liability to be 
 ordered to ser\dce in connection with the Army 
 and in that case under the command of Army 
 officers. (U. S. v. Dunn, 120 U. S., 249.) 
 
 It must be conceded that the Marine Corps, a 
 military body in the regular service of the 
 Tnited States, occupies something of an anoma- 
 lous position, and is often spoken of in statutes 
 which enumerate "the Army, the Navy, and 
 the Marine Corps," or "the Army and the 
 IMarine Corps," or "the NaA"\' and the Marine 
 Corps," in a manner calculated and intended 
 to point out that it is not identical mth either 
 the Army or the Navy. And this argument is 
 the one very much pressed to show that service 
 in the Marine Corps is not serWce in the Army 
 or in the Navy. On the other hand, the 
 services rendered by that corps are always of a 
 military character, and are rendered as part of 
 the duties to be performed by either the Army 
 or the Navy. If there are services prescribed 
 for that corps by the statutes of the United 
 States, or the regulations of either the Army 
 or the Navy, which are not performed in imme- 
 diate connection with the Army or the Navy, 
 and under the control of the heads of the Army 
 or Navy, either civil or military, the court is 
 not aware of them. (U. S. v. Dunn, 120 U. S., 
 249.) 
 
 The provisions of the Revised Statutes (sees. 
 1599 1600, 1613, 1614, 1615, 1616, 1621, and 
 1623), bringing together the enactments of 
 Congress on the subject of the Marine Corps, 
 show that the primary position of that body in 
 the military service is that of a part of the Navy, 
 and its chief control is placed under the Secre- 
 tary of the Navy, there being exceptions when 
 it may, by order of the President or some one 
 ha\'ing proper authority, be placed more imme- 
 diately, for temporary duty, with the Army 
 and under the command of superior Army 
 officers. (U. S. v. Dunn, 120 U. S., 249.) 
 
 Whatever view may be taken, the Marine 
 Corps can not be considered as a distinct mili- 
 tary organization, independent of the depart- 
 ments of the Army and Navy, and under the 
 supervision and control of neither of them, 
 having no superior outside of its own officers 
 except the President. While it may be true 
 that it is not so exclusively a part of the Navy 
 as ships and navy yards are, yet its general 
 supervision and control remain with the Navy 
 Department. (U. S. v. Dunn, 120 U. S., 249.) 
 
 The statutes relating to the Marine Corps, and 
 decisions of the Supreme Court of the United 
 States, reviewed and held: "These provisions, 
 together with many others that might be cited , 
 indicate beyond doubt that the Marine Corps 
 in the contemplation of Congress constitutes a 
 constituent part of the naval serWce of the 
 country, subject to the laws and regulations 
 that govern that arm of the service, and this, we 
 think, has been so held by the Supreme Coiut 
 of the United States." (Elliott v. Harris, 24 
 App. D. C, 11; file 10245-03; followed and 
 applied by Navy Department Aug. 19, 1913, 
 file 26251-6297: 4&5; compare, McCalla v. 
 Facer, 144 U. S., 61, noted under sec. 1418, 
 R. S.) 
 
 The military establishment of the United 
 States consists of three principal organizations, 
 
 958 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1621. 
 
 the Army, the NaVy, and the Marine Corps. 
 Each has an organization distinct from that of 
 the others, as plainly appears in the Revised 
 Statutes; and each is the subject of distinct 
 annual appropriations by Congress. (19 Op. 
 Attv. Gen., 616, 618, 619.') 
 
 The organization of the Marine Corps is as- 
 similated to that of the Army, but its sphere of 
 duty is mostly on board ships or at naval sta- 
 tions on land, and it may be called the police 
 of the Na\^; while on the other hand it is 
 always liable to be ordered to ser\dce in con- 
 junction ^\ith the Army, and is subject to the 
 Articles of War or the Articles for the Govern- 
 ment of the ]Na\y, according as it serves with 
 the one or the other of these branches of the 
 ser^-ice. (19 Op. Atty. Gen., 616, 618, 619.) 
 
 That the Marine Corps has a closer affinity 
 ■with the Na\^ than ■with the Army is manifest 
 both fi'om its designation and from section 1621 
 of the Re\-ised Statutes. According to this 
 section, the ser\'ice of the Marine Corps with 
 the Navy is its usual and regular ser-vice, while 
 that "with the Army is unusual and exceptional. 
 This view was substantially adopted by the 
 Supreme Court in the case of United States v. 
 Dunn and Wilkes v. Dinsman, above noted. 
 (19 Op. Atty. Gen., 616, 618, 619.) 
 
 The Marine Corps, though a distinct organiza- 
 tion from the Army or Na\'j^ is nevertheless 
 subject to the laws and regulations for the gov- 
 ermnent of the Na"vy, except when detached 
 for ser\dce "with the Army by order of the Pres- 
 ident (sec. 1621, R. S.). In relation to rank, 
 the officers of the Marine Corps shall be on the 
 same footing as officers of similar gi'ades in the 
 Army (sec. 1603). And they shall take the 
 same oath prescribed for officers and enlisted 
 men of the Army (sec. 1609). By section 1622, 
 commissioned officers of the Marine Corps shall 
 be retired in like cases, etc., as officers of the 
 Army, except as provided in section 1623. 
 The noncommissioned officers, privates and 
 musicians of the Marine Corps are, by section 
 1615, entitled to receive one Navy ration daily, 
 and by section 1617 it is provided that no offi- 
 cer of the Marine Corps shall exercise command 
 over any navy yard or vessel of the United 
 States. By section 1616 the officers and en- 
 listed men of the corps are subject to duty on 
 board the anned vessels of the United States; 
 and by section 1619 the corps shall be liable 
 to do duty in the forts and garrisons of the 
 United States or other duty on shore, etc. 
 Terms of enlistment in the Army, NaA^y, and 
 Marine Corps are prescribed by sections 1119, 
 1418, and 1608, respectively. In Wilkes v. 
 Dinsman (above noted), the court, construing 
 act of March 2, 1837 (5 Stat., 157), pro\ddingfor 
 enlistments in the Navy, held that the words 
 "any person enlisted for the Na^y" includes 
 marines; see also. United States v. Dunn (above 
 noted). It \^ill thus be seen that the status of 
 the Marine Corps is a variable one, and though 
 subject to the laws and regulations established 
 for the government of the Nav>% except when 
 detached by the President for serAdce with the 
 Army, they are, in relation to rank, oath, pay, 
 and retirement, assimilated to the Army and 
 subject to the direction of the President they 
 may, under section 1619, be detached for service 
 
 with the Army anywhere in the United States. 
 (Walton V. U. S., 31 Ct. Cls., 196.) 
 
 A perusal of ReAdsed Statutes, section 1612, 
 1621, and 1622, Arill indicate the somewhat 
 anomalous position occupied by the Marine 
 Corps in the military service. It looks to the 
 Army statutes for its rate of pay and to the Na\'y 
 for its laws and regulations, except where de- 
 tached for service A\dth the Army, and the same 
 uncertainty as to its position runs all through 
 the statutes relating to the Army and Navy. 
 Nevertheless, generally speaking and as its 
 name indicates the Marine Corps is a part of the 
 Nav>'. It is that part of the Navy which may 
 on occasions become a part of the Army. Tlie 
 courts have kept this fact in mind in the con- 
 struction of statutes relating to the military 
 serAdce. (Jonas v. U. S., 50 Ct. Cls., 281.) 
 
 The Marine Corps is clearly organized under 
 the authority conferred by clause 13 of section 
 8 of Article I of the Constitution, which de- 
 clai'es that the Congress "shall have power to 
 provide and maintain a Navy." and it is gov- 
 erned under so much of the authority conferred 
 by clause 14 of the same section as empowers 
 the Congress "to make rides for the government 
 and regulation of the ■* * * naval forces." 
 This conclusion is established by the decision 
 of the Supreme Court in Wilkes v. Dinsman 
 (above noted ), in which it was determined that 
 a private in the Marine Corps was a "person 
 enlisted for the Navy " in the language of the 
 act under consideration in that case. That 
 decision was cited with approval in United 
 States V. Dunn (above noted). These two 
 decisions support the statement made by the 
 Attorney General while Secretaiy of the Navy, 
 that "its legal status is, beyond a doubt or 
 question, a part of the naval forces of the 
 countiy, if not a part of the Navy in its strictest 
 sense." (27 Op. Atty. Gen., 90.) 
 
 The Marine Corps has a composition and 
 primary organization distinct from those of 
 both the Army and the Navy, pursuant to 
 chapter 9, Title XV of the Revised Statutes; 
 but that chapter itself is a part of the title con- 
 cerning the Naxy. In United States v. Dunn 
 (noted above), the Supreme Court states what 
 the Revised Statutes, section 1621, makes alto- 
 gether clear; that the Marine Corps is a part of 
 the naval establishment, and is subject to the 
 laws and regulations for the government of the 
 Navy save in the single case when it has been 
 detached for service with the Army by order 
 of the President. Nothing but such order by 
 the President or by his authority can alter the 
 ordinary connection of the Marine Corps with 
 the Navy and connect that corps with the 
 Army. (28 Op. Atty. Gen., 15, 17.) 
 
 The statutes recognize the Marine Corps as 
 part of the Navy; the Marine Corps is carried 
 upon the Navy Register, and the Isavy Regu- 
 lations assign their duties, except where de- 
 tached for duty in the Armv. (Harllee v. 
 U. S., 51 Ct. Cls., 342. Compare Reid v. U. S., 
 18 Ct. Cls., 625.) 
 
 The recent trend of legislation, and depart- 
 mental regulations, as well as decisions of the 
 courts and executive departments, has been in 
 the dii'ection of fixing the status of the Marine 
 Corps even more definitely as an integral part 
 
 959 
 
Sec. 1621. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 of the naval service than was the case in prior 
 years. (File 5252-0(1, May 13, l!»i5, citing, 
 inter alia, act of June 30, 1914 (38 Slat., 403). 
 "that hereafter the numl)er of enlisted men of 
 the Navy and Marine Corps provided for shall 
 be construed to mean the daily average num- 
 ber of enlisted men in the naval service during 
 the liscal year.") 
 
 There is properly speaking no warrant in law 
 for regarding the ]\larine Corps as an anomalous 
 body, intermediate between the Army and 
 iSia\-V, and having relations ^^'ith both. It is 
 true that the Marine Corps is assimilated to 
 tlie Army in some respects, as by sections 1604, 
 IGOi), Hil2, 1622 of the Revised Statutes, and the 
 act of July 28, 1892 (27 Stat., 321); but its legal 
 status is beyond a doubt or question a part of 
 the naval forces of the country, if not a part of 
 the Navy in the strictest sense. (File 21277, 
 Mar. 31, 1906; quoted in 27 Op. Atty. Gen., 90.) 
 
 GiA-ing to the word "detached" in section 
 1621, the same appropriate significance which 
 it has in section 1616, it becomes evident that 
 service Avith the Army and consequent subjec- 
 tion to the Articles of ^^'ar is regarded as an 
 exceptional and al)normal condition for the 
 Marine Corps, as clearly as it would be for a 
 force of blue-jackets landed and placed tem- 
 porarily under the orders of an Army officer. 
 (File 21277, Mar. 31, 1906.) 
 
 Status when detached for service with 
 the Array.— The law is well settled that mem- 
 bers of the Marine Corps detached by the Pres- 
 ident for service with the Army are, while so 
 serving, a part of the Army and not under naval 
 jurisdiction. (Inle 26250-2335, Dec. 18, 1920. j 
 
 Section 1621 is explicit in sajdng that when 
 detached by order of the President for service 
 with the Ai-my the Marine Corps shall be sub- 
 ject to the rules and articles of war prescribed 
 for the government of the Army; and then, of 
 course, it becomes a "corps of the Army" 
 within the scope of the 122d article of war. (28 
 Op. Atty. Gen., 15, 19; see note to sec. 1342, 
 R. S.) 
 
 Where the President should, by order, incor- 
 porate it with an army for any given service on 
 land, its identity as a Marine Corps, pro hac 
 vice, would be lost in that of the Army, and 
 the whole body become, for the time, one. (1 
 Op. Atty. Gen., 380.) 
 
 Court-martial jurisdiction. — See article 2 
 of tlie Articles of War, quoted above under this 
 section. 
 
 Wliether an officer of the IMarine Corps is li- 
 able to be tried by a naval court-martial or one 
 composed of officers of the Army will depend 
 upon whether the alleged misconduct took 
 place while he was emploved in the land serv- 
 ice. (5 Op. Atty. Gen., 706.) 
 
 Courts-martial of marine officers stationed on 
 shore and convened under the Articles of War 
 may try and sentence to suffer corporeal pun- 
 ishment marines who have deserted from the 
 public ships, although it would have been oth- 
 erwise had the offense been committed while 
 the marines were employed in any service upon 
 the land, as in the latter case the abolition of 
 corporeal punishment by act of May 16, 1812, 
 in reference to the Army would be applicable 
 and exclude its infliction upon marines. (1 
 Op. Atty. Gen., 187.) 
 
 Under Revised Statutes, section 1621, a pri- 
 vate in a brigade of the Marine Corps is not, 
 while that brigade is detached for service with 
 the Army by order of the President, subject to 
 the laws and regulations of the Navy, and a 
 naval court-martial has no jurisdiction over 
 him based on an act constituting an offense 
 both by the rules and regulations of war pre- 
 scribed for the government of the Army and 
 the laws and regulations established for the 
 government of the Navy. (U. S. ex rel. Davis 
 V. Waller, 225 Fed. Rep., 673.) 
 
 Section 1621 may be construed as though it 
 read: "The Marine Corps is subject to the Ar- 
 ticles of W'ar while on service yn.{\\ the Army by 
 order of the President. At all other times it is 
 subject to the laws and regulations of the 
 Navy." (U. S. ex rel. Davis v. Waller, 225 
 Fed." Rep., 673.) 
 
 Granted that the status of the Marine Corps 
 was at first doubtful. It rendered serN-ice at 
 times with the Navy and at times with the 
 Army, without being definitely or pemianently 
 attached to either department. Its "pri- 
 mary" relation was finally settled to be with 
 the Navy, but it had special and temporary 
 Army relations when on ser,vice_with the Army. 
 The early statutes gave recognition to this by 
 providing that it should be subject to the laws 
 and regulations of the Navy, except when de- 
 tached by order of the President for service 
 with the Army. Later the statutes added the 
 clause contained in section 1621, that when so 
 detached it should be subject to the Articles of 
 War. This confirms the conclusion that Con- 
 gi-ess did not intend by section 1621 that a ma- 
 rine should be subject to trial by naval court- 
 martial for an offense committed by him while 
 detached for service with the Army. (U. S. ex 
 rel. DaA-is r. Waller, 225 Fed. Rep., 673.) 
 
 Under section 1621, Revised Statutes, a 
 marine detached for service -uith^ the Army 
 and thereafter returned to the jurisdiction of 
 the Navy could not be tried by a naval court- 
 martial for an offense committed by him while 
 detached for service 'with the Army, which was 
 a \iolation of Army Regulations. The same 
 laws and regulations which define the offense 
 constitute and designate the com-t which is to 
 trv the offender. (U. S. ex rel. Davis v. Waller, 
 225 Fed. Rep., 673.) 
 
 The fifth regiment of marines was organized 
 by du'eetion of the President under Confiden- 
 tial Orders 28790-3, dated May 29, 1917, and was 
 by said order detached for service with the Army 
 in accordance with section 1621, Revised 
 Statutes. No order having been issued de- 
 taching said regiment from duty with the Army 
 and returning it to the jurisdiction of the Navy, 
 it would appear that the Arm;^ has jurisdiction 
 to try a member of that regiment by court- 
 martial for offenses alleged to have been com- 
 mitted by him while an inmate of an Army 
 hospital in this country to which he had been 
 transferred after his return to the United 
 States, having in the meantime been under 
 treatment in naval hospitals in Norfolk and 
 Brookhm. The said private, not ha\ ing been 
 detached from duty \nth the Army and re- 
 turned to naval jurisdiction, continued subject 
 to Armv jurisdiction. (File 27228-547, May 
 26, 1919") 
 
 960 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1621. 
 
 By War Department General Orders No. 96, 
 July 30, 1919, it was provided: "By direction 
 of the President, it is ordered that all officers 
 and enlisted men of the Marine Corps who have 
 heretofore been detached for service ■with the 
 Army in connection with the war against 
 Germany and her allies, and who shall hereafter 
 arrive in the Ignited States shall, upon report- 
 ing at any station, post, camp, garrison, hospital, 
 office, or other unit or organization of the Navy 
 or Marine Corps for duty, forth\vith stand 
 detached from service with the Army and 
 shall revert to their former status of duty with 
 the Navy. All officers and enlisted men of 
 the Marine Corps who ha^-e been detached as 
 aforesaid and who \\a\e heretofore arrived in 
 the United States shall stand detached from 
 service with the Army from this date, provided 
 they have not already been returned to duty 
 ^\'ith the Navy. Officers and enlisted men of 
 the Marine Corps who are patients in Army 
 hospitals shall not come under the provisions 
 of this order until they shall have been dis- 
 charged therefrom . ' ' 
 
 Jurisdiction to review proceedings of 
 Army board. — The naval authorities are 
 without jurisdiction to review the proceedings 
 or action of the Army authorities in the case 
 of a private in the Marine Corps who died 
 August 29, 1919, while serA-ing with the Amer- 
 ican Forces in France, an Army board having 
 convened on September 29, 1919, and reported 
 that his death was in the line of duty and not 
 the result of his own misconduct, vvhich said 
 report was approved by the convening author- 
 ity and forwarded to the commanding general, 
 headquarters American Forces in France, by 
 whom it was transmitted to the Adjutant 
 General of the Army and thence to the Major 
 General Commandant of the Marine Corps. 
 At the time of his death, said private had not 
 been returned to the jurisdiction of the Navy 
 as he was still mth the American Forces in 
 JYance and did not return to the United States. 
 (File 26250-2335, Dec. 18, 1920. See War 
 Dept. G. O. 96, July 30, 1919, quoted above 
 under "Court-martial jurisdiction. ") 
 
 Status when cooperating or traveling 
 with Army. — The Articles of War do not 
 operate to give the officers of the jNIarine Corps 
 any authority to exercise command in the 
 Army unless they have been detached for 
 ser\ice with the Army by order of the President 
 and are still serving with the Army under that 
 order. (28 Op. Atty. Gen., 15; see note to 
 sec. 1342, R. S., as to art. 120 A. W.) 
 
 "^Tien any part of the Marine Corps is present 
 with the Army and engaged in a common 
 enterprise with it, without an order of the 
 President detaching it for service with the 
 Army, the case is one of cooperation and not of 
 incorj)oration ; and in such a case no officer of 
 the Marine Corps can exercise command over 
 the Army any more than a naval officer can 
 when some part of the Navy is cooperating with 
 the Army; and the converse is true of Army 
 officers cooparating vA\\i the Marine Corps. 
 The Marine Corps is a part of the Naval Estab- 
 lishment, and is subject to the laws and regula- 
 tions for the government of the Navy save in the 
 single instance when it has been detached for 
 serA-ice with the Army by order of the Presi- 
 
 dent. (28 Op. Atty. Gen., 15; see notes to sees. 
 1342 and 1466, R. S.) 
 
 Enlisted men of the Navy and Marine Corps, 
 while being transported on board an Army 
 transport are subject to the rules and regula- 
 tions of said transport, but are not amenable to 
 trial by Army court-martial unless attached 
 to the Army by Executive order. (File 26287- 
 534, June 15, 1910.) 
 
 The statutes are clear that marines are not 
 subject to the Articles of War unless detached 
 for service with the Army by order of the Pres- 
 ident. It is equally clear that officers and en- 
 listed men of the Navy are not under any cir- 
 cumstances subject to the Articles of War 
 except while serving with marines detached for 
 service with the Army by order of the President, 
 as provided in the act of August 29, 1916 
 (quoted above, under this section). (Op. 
 J. A. G., Army, Nov. 19, 1920, No. 250401, 
 Navy Dept. file No. 26287-7305:1.) 
 
 Officers and enlisted men of the Navy and 
 Marine Corps traveling on Army transports, 
 but not dstached for service with the Army, 
 although subject to Army Transport Regula- 
 tions, are not subject to trial by Army courts- 
 martial. (Op. J. A. G., Army, Nov. 19, 1920, 
 No. 250401, Navy Dept. file No. 26287-7305:1.) 
 
 Under first views the Marine Corps is to be 
 taken as an adjunct of the Navy; nor can it be 
 supposed that the mere fact of its bodily pres- 
 ence upon the law would be sufficient to divest 
 the service which may have been there per- 
 formed of the substantial characteristics of 
 naval service. How long soever such bodily 
 presence may have been continued, it may 
 still well be conceived to have brought with it 
 constructively but essentially nothing but 
 the fulfillment of naval duty. (5 Op. Atty. 
 Gen., 706.) 
 
 What laws and regulations are included 
 by section 1621. — The term, "the better gov- 
 ernment of the Navy," as used in the law (now 
 embodied in sec. 1621, R. S.), need not be 
 restricted to mere punishment, or to courts- 
 martial, but may include any provision by law 
 intended to secure the safety of the crew and 
 vessel, and insure due subordination and sound 
 discipline in any exigency of the public service. 
 (Wilkes V. Dinsman, 7 How., 89, holding that 
 the law now embodied in sec. 1422, R. S., 
 affecting terms of enlistment in the Navy, was 
 applicable to Marine Corps.) 
 
 The obvious purpose of section 1621, Revised 
 Statutes, is to provide rules for the discipline 
 of the Marine Corps in the different spheres of 
 duty (military and naval) in which it is liable 
 to serve. Its language does not warrant the 
 inference that it was intended thereby to sub- 
 ject that corps to any other laws and regulations 
 of the Navy than such as relate to discipline 
 and its maintenance. Within this category 
 section 1493, Revised Statutes (relating to ex- 
 aminations for promotion in the Navy), does 
 not fall. (17 Op. Atty. Gen., 117, 118. See 
 act Aug. 29, 1916, 39 Stat., 611, extending sec. 
 1493, R. S., to the Marine Corps; and see note 
 to sec. 1599, R. S., under "Laws relating to 
 promotion construed.") 
 
 The act of August 3, 1861, section 17, author- 
 izing the Secretary of the Navy to assemble 
 boards for the retirement of marine officers, 
 
 961 
 
Sec. 1621. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 does not provide that the l)oard shall consist 
 of officers of that corps, but simply that it shall 
 consist of commissioned officers; this being a 
 la\s- for the government of the Navy \\-ithin 
 the meaning of the a< t of 1834 (sec. 1621 , R. S.), 
 hid that the Pecri^tary of the Navy, under the 
 President, has full power to organize boards 
 for the retirement of marine officers from officers 
 of the Navy of senior rank, under section 17 of 
 said act of iSGl . (10 Op. Atty. Gen., 129, 130.) 
 
 The effect of the act of June 30, 1834, section 
 2 (sec. 1621, R. S.), is to subject this corps to 
 the operation of laws for the government of the 
 Na\y, except where by special enactment they 
 are made subject to different laws, as, for 
 instance, by the act of June 30, 1834, section 5, 
 relating to pav and allowances. (10 Op. Atty. 
 Gen., 129.) 
 
 Navy laws held appUcahle to Marine 
 Corps. — See notes to sections 761, 1418, and 
 1422, Re\'ised Statutes, as to enlistments in the 
 Marine Corps; note to section 1596, under 
 " Computing number of officers;" and note to 
 section 1599, under ''Appointment of former 
 student at Naval Academy." 
 
 The act of Congress passed ]\Iarch 2, 1837 (5 
 Stat., 153), authorized a reenlistment of marines 
 to serv^e during the cruise then about to take 
 place, they being included in the denomina- 
 tion of ' ' persons enlisted for the Navy . ' ' Under 
 the same act the commander of a squadron had 
 power to detain a marine after the term of his 
 enlistment expired, if in the opinion of the 
 commander public interest required it. (Wilkes 
 V. Dinsman, 7 How., 89. See sec. 1422, R. S., 
 and note thereto.) 
 
 At the time of enlistment the Marine Corps 
 being subject to such laws and regulations as 
 might at any time be established for the better 
 government of the Navy, it was a part of the 
 contract of enlistment that the marine in this 
 case should obey them whenever passed; it 
 was, therefore, no objection to such laws that 
 they were passed after his entering the service. 
 (Wilkes V. Dinsman, 7 How., 89.) 
 
 The limitations in sections 1418 and 1419, 
 Revised Statutes, undoubtedly apply to en- 
 listments in the ISIarine Corps, under section 
 1608. (In re Doyle, 18 Fed. Rep., 369; see 
 notes to sections cited.) 
 
 The Marine Corps is part of the naval service, 
 in which minors over 18 years of age may be 
 enlisted, under sections 1608 and 1418, 1419, 
 1420, and 1624 (art. 19), without the consent of 
 theu" parents or guardians. (In re Doyle, 18 
 Fed. Rep., 369; see also Elliott v. Hanis, 24 
 App. D. C, 11, followed bv Navy Dept., Aug. 
 19, 1913, file 26251-6297: 4& 5, with reference 
 to unauthorized detention of enlisted men of 
 the Marine Corps after expiration of enlistment 
 to make good time lost by unauthorized absence 
 as pro% ided for in Army laws.) 
 
 Sei"vice by an officer of the Navy as an en- 
 listed man in the Marine Corps is to be credited 
 to him in calculating his longevity pay, imder 
 the act of March 3, 1883 (22 Stat., 472, 473), 
 pro^iding that "all officers of the Navy shall 
 be credited with, the actual time they may have 
 served as officers or enlisted men in the regular 
 or volimteer Army or Navv, or both," etc. 
 (U. S. V. Dunn, 120 U. S., 249.) 
 
 The naval appropriation act of August 22, 
 1912 (37 Stat., 328), authorizing enlisted men of 
 the Navy by their voluntary agreement to ex- 
 tend their enlistments for a period of one, two, 
 three, or four years, held applicable to enlisted 
 men of the Marine Corps. (File 26507-214 : 8, 
 Apr. 5, 1915, following Wilkes v. Dinsman, 
 above noted. See also note to sec. 1418, R. S.) 
 
 The act of June 30, 1914 (38 Stat., 410), au- 
 thorizing appointments to the Naval Academy 
 from "enlisted men of the Navy," held to au- 
 thorize such appointments to fee made from 
 enlisted men of the Marine Corps. (File 5252- 
 66, May 13, 1915.) 
 
 The provisions contained in the naval appro- 
 priation act of March 3, 1915 (38 Stat., 940), 
 c^'eating a "United States naval reserve," did 
 not authorize the creation of a Marine Corps 
 reser\e, for the reason that several pro\ision3 
 contained in said legislation clearly manifested 
 that Congress did not intend to include the 
 Marine Corps therein. (File 28550-1 : 3, June 
 15, 1915.) 
 
 Section 1563, Re\ised Statutes, which forms 
 part of chapter 8 of Title XV, authorizing ad- 
 vances of pay to ' ' persons in the naval ser\ice, ' ' 
 has been invariably construed by the account- 
 ing officers as applying to marine officers. (See 
 Reidr. U. S., 18 Ct. Cls., 625.) 
 
 Navy laws held not apphcable to Marine 
 Corps.— An officer in the Marine Corps attached 
 to a seagoing vessel is not entitled to the ration 
 allowed by Revised Statutes, section 1578, to a 
 naval officer so attached. (Reid v. U. S., 18 
 Ct. Cls., 625.) 
 
 The term "Navy bands" as used in the stat- 
 ute under consideration, held not to include the 
 Marine Band. (27 Op. Atty. Gen., 90, noted 
 under sec. 1613, R. S.) 
 
 The act of February 9, 1889 (25 Stat., 657), 
 "to provide for the deposit of savings of seamen 
 of the United States Navy," does not extend to 
 enlisted men of the Maiine Corps. (19 Op. 
 Atty. Gen., 616; see also 25 Op. Atty. Gen., 
 190.) 
 
 For other cases, see note to section 1418 , Re- 
 vised Statutes, imder "Enlistments in the Ma- 
 rine Corps not governed by Navy laws"; and 
 see note to section 1422, Revised Statutes, with 
 respect of maiine officers for Civil War service. 
 
 Intention of Congress. — In many cases 
 statutes relating to the Navy are obviously in- 
 applicable to the Marine Corps; either because 
 of express language used therein or because of 
 the manifest purpose of Congress as apparent 
 from a reading of the law itself or from a con- 
 sideration of the conditions and circumstances 
 surrounding its enactment. The word ' ' Navy " 
 may be given an extended meaning to embrace 
 the Marine Corps, as has been done in many 
 cases, wliile on the other hand the facts of a 
 particidar case may be such as to show that it 
 was used in a more restricted sense as referring 
 to the Navy proper, as has likewise been held 
 in many cases. Accordingly, each statute 
 must be construed with reference to specific 
 questions arising thereunder; and the _word 
 "Navy" thus being susceptible of two inter- 
 pretations, it is always permissible to consider 
 the purpose and spirit of the law, and the object 
 
 962 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1622. 
 
 have not the right or privilege of making such 
 deposits with a paymaster of theii" branch of 
 the service. (25 Op. Atty. Gen., 190.) 
 
 If the act of February 9, 1889 (25 Stat., 657), 
 pro\dding for deposits by enlisted men of the 
 Navy, could not properly be construed to apply 
 to the Marine Corps, which is primarily a com- 
 ponent part of the Navy, the sections of the 
 Revised Statutes authorizing such deposits by 
 enlisted men of the Army can not be so con- 
 strued. (25 Op. Attv. Gen., 190.) 
 
 The act of March 3, 1885 (23 Stat., 350), re- 
 lating to reim1)ursement for losses of personal 
 effects by persons in the Army, does not apply 
 to the Marine Corps, which is governed in this 
 respect by the act of March 2, 1895 (28 Stat., 
 962), relating to losses bv persons in the naval 
 service. (Harilee v. U. S., 51 Ct. Cls., 342.) 
 
 The Army appropiiation act of April 27, 1914 
 (38 Stat., 353, 354), providing that no enlist-, 
 ment shall be regarded as complete until the 
 soldier shall have made good any time in excess 
 of one day lost by unauthorized absences, does 
 not apply to the "Marine Corps, although a pro- 
 vision in the same paragi-aph, as to forfeiture of 
 pay in certain cases of absence from duty, is 
 applicable to the Marine Corps by virtue of 
 section 1612, Revised Statutes. (Comp. Dec, 
 June 3, 1914, 160 S. and A. Memo., 3250.) 
 
 The provisions of sections 2, 3, and 4 of the 
 actof June 16, 1890, entitled "An Act to prevent 
 desertions from the Army, and for other pur- 
 poses," are not applicable to the Marine Corps. 
 Section 2 relates to the terms of enlistment in 
 the Anny, and provides that soldiers discharged 
 prior to expiration of enlistment shall not be 
 entitled to certain allowances; section 3 pro- 
 vides for the arrest of deserters by civil offi- 
 cers; and section 4 authorizes the President to 
 permit enlisted men to purchase their dis- 
 charges in time of peace. However, section 
 one of the same act, relating to the retention of 
 certain pay until discharge, is applicable to the 
 Marine Corps by virtue of section 1612, Re- 
 vised Statutes. (19 Op. .Mty. Gen., 616.) 
 
 Section 1216, Revised Statutes, as amended 
 by act of T^Iarch 29, 1892 (27 Stat., 12), provid- 
 ing for the issuance of certificates of merit to 
 enlisted men of the AiTay distinguishing them- 
 selves in the service, etc., does not apply to en- 
 listed men of the ^Iarine Corps, who are en- 
 titled to the benefits of a corresponding provi- 
 sion in section 1407, Revised Statutes, as 
 amended. (24 Op. Atty. Gen., 579.) 
 
 See United States v. Freeman (3 How., 556), 
 noted under section 1604, Revised Statutes, 
 under "Brev^et pay and emoluments," which 
 held that the words "officers of the Army" in 
 an act of April 16, 1818, included officers of the 
 Marine Corps; see also note to section 1622, 
 Revised Statutes, as to retirement of officers for 
 Civil War service. 
 
 which it was intended to accomplish, as indi- 
 cated not only by the language used in the 
 statute but by other recognized aids to inter- 
 pretation. (File 5252-66, May 13, 1915; 
 28687-5, Aug. 29, 1916.) 
 
 It does not follow from the decisions holding 
 that the word "Navn,'" includes the Maiine 
 Corps that Congi-ess can not enact any law with 
 reference to the Navy which does not, ipso fure, 
 include the Marine Corps. On the contrary, 
 the Navy Department fully recognizes the fact 
 that many laws relating to the Navy are not 
 intended to include the Marine Corps, and that 
 the question is largely one of intent. (File 
 28687-5, Aug. 29, 1916.) 
 
 In nearly all cases where Congress intends to 
 legislate v\ith reference to the Marine Corps it 
 designates it especially, ev^en in cases where it 
 might properly be held to be included by the 
 term "Navy," as, for example, in the pension 
 laws, and the laws establishing hospitals for the 
 Navy-; which shows that Congi-ess has not al- 
 ways regarded the teiTQ Navy^ as a sufficiently 
 clear designation for the Marine Corps. (19 
 Op. Atty. Gen., 616, 620.) 
 
 The literal sense of the law is not necessaiily 
 its true sense; for if, by taking the law by its 
 four corners, or by looking at it in the Ught of 
 the circumstances in which it was passed, or by 
 doing both, it appears that its meaning should 
 be restricted or enlarged in order to cany out 
 the intention of the legislatm'e, it is the duty 
 of the ex])ounder to Umit or amplify that 
 meaning as the case may requii'e. (i9 Op. 
 Atty. Gen., 616, 618.) 
 
 In view of the pecuhar and ii'regular position 
 of the Marine Corps in the public service, it is 
 not at all surprising that instances occur where 
 legislation in terms confined to the Army and 
 Navy has been held to include the officers and 
 men of the Maiine Corps. (19 Op. Attv. Gen., 
 616, 619.) 
 
 It is quite safe to say that, in the absence of 
 language or attendant cii'cmnstances indicating 
 different intention, the term in a statute, 
 "officers of the Navy," would not include 
 officers of the Marine Corps, and "enlisted men 
 fthe Navy " would not include enlisted men of 
 the Marine Corps. (27 Op. Atty. Gen., 90.) 
 
 Army laws held inapplicable to Marine 
 Corps. — Section 1117, Revised Statutes, pro- 
 hibiting enlistment of any person under 21 
 years in the military service of the United 
 States, without the written consent of his 
 parents or guardians, apphes only to enUst- 
 ments in the Army, and does not include the 
 Marine Corps. (In re Dovle, 18 Feb. Rep., 
 369; see note to sec. 1418, 'R. S.) 
 
 Sections 130.5-1308, Revised Statutes, which 
 provide for the deposit \\ith any Army paymas- 
 ter by any enlisted man of the Army of his 
 savings, have no application to the Marine 
 Corps; and the enlisted men of that corps 
 
 Sec. 1622. [Retirement.] The commissioned officers of the Marine Corps 
 shall be retired in like cases, in the same manner, and with the same relative 
 conditions, in all respects, as are provided for officers of the Army, except as 
 is otherwise provided in the next section. — (3 Aug., 1861, c. 42, ss. 15, 16, 17, v. 
 12, p. 289. 17 July, 1862, c. 200, s. 12, v. 12, p. 596. 21 Jan., 1870, c. 9, s. 
 
 963 
 
Sec. 1622. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 1, V. 10, p. G2. 15 July, 1870, c. 294, 
 419. s. 1, V. 17, p. 378.) 
 
 ARMY LAWS APPLICABLE TO M.^RINE CORPS. 
 
 Age or length of service. — "When an officer 
 has served forty consecutive years as a com- 
 missioned oflicer, he shall, if he makes applica- 
 tion therefor to the President, be retired from 
 active ser\-ice and placed upon the reth-ed list. 
 When an officer has been thirty years in service, 
 he may. upon his own application, in the 
 discretion of the President, be so retired, and 
 placed on the retired list." (Sec. 1243, R. S.) 
 "When any officer has served forty-five 
 years as a commissioned officer, or is sixty -two 
 years old, he may be retired from active 
 8er%ice at the discretion of the President." 
 (Sec. 1244, R. S.) 
 
 "When an officer has served forty yeai's 
 either as an officer or soldier in the regular or 
 .volunteer serA-ice, or both, he shall, if he make 
 application therefor to the President, be re- 
 tired from active serAice and placed on the 
 retired Hst, and, when an officer is sixty-foiu- 
 years of age, he shall lie retired from active 
 service and placed on the retii'ed list. " (Act 
 June 80, 1882, 22 Stat.. 118.) 
 
 Nothing contained in the act of June 30, 
 1882 (above quoted), "shall be so construed 
 as to prevent, limit, or restrict retirements 
 from active ser^ice in the Army, as authorized 
 by law in force at the date of the approval 
 of said act, retirements under the proAisions 
 of.said act of June thirtieth, eighteen hundred 
 and eighty-two. being in addition to those 
 theretofore authorized by law." (Act Mar. 3, 
 1883, 22 Stat., 457.) 
 
 "That hereafter no officer holding a rank 
 above that of colonel shall be retired except 
 for disabihty or on account of having reached 
 the age of sixty-four years until he shall have 
 served at least" one year in such rank. " (Act 
 June 12, 1906. 34 Stat.. 245.) 
 
 "In the case of officers of the Regular Army, 
 in determining rights of retirement, active 
 duty performed while under appointment from 
 the United States Government, whether in the 
 regular, proA-isional, or temporary forces, shall 
 be credited to the same extent as service under 
 a Regular Army commission." (Act June 4, 
 1920, sec. 51, 41 Stat.. 785, amending act June 
 3, 1916, sec. 127. 39 Stat., 217. See also note 
 to sec. 1600, R. S.) 
 
 Disability. — "WTien any officer has become 
 incajpable of performing the duties of his office, 
 he shall be either retired from active serAT.ce, or 
 wholly retired from the ser\-ice, by the Presi- 
 dent, as hereinafter proWded." (Sec. 1245, 
 R. S.) 
 
 Composition of hoard. — "The Secretary of 
 War, under the direction of the President, shall, 
 from time to time, assemble an Army retiring 
 board, consisting of not more than nine nor less 
 than five officers, two-fifths of whom shall be 
 selected from the Medical Corps. The board, 
 excepting the officers selected from the Med- 
 ical Corps, shall be composed, as far as may be, 
 of seniors in rank to the officer whose disabihty 
 is inquired of." (Sec. 1246, R, S.) 
 
 See section 1623, ReAised Statutes, as to 
 composition of retiring board in the cases of 
 
 s. 4, Y. 16, p. 317. 10 June, 1872, c. 
 
 Marine officers. See also act of ^^arch 4, 1916 
 (39 Stat., 1171), noted below, under "Laws 
 relating specifically to Marine Corps," as to 
 retiring boards on foreign stations. 
 
 Oath of members. — "The members of said 
 board shall be sworn in every case to discharge 
 their duties honestly and impartially." (Sec. 
 1247, R. S.) 
 
 Powers and duties. — "A retiring board rnay 
 inquire into and determine the facts touching 
 the nature and occasion of the disability of any 
 officer who appears to be incapable of perform- 
 ing the duties of his office, and shall have such 
 powers of a court-martial and of a court of in- 
 quiry as may be necessary for that pm'pose." 
 (Sec. 1248, R. S.) 
 
 Findings. — "T\Tien the board finds an 
 officer incapacitated for active ser\ice, it shall 
 also find and report the cause which, in its 
 judgment, has produced his incapacity, and 
 whether such cause is an incident of service." 
 (Sec. 1249, R. S.) 
 
 Revision by the President. — "The proceed- 
 ings and decision of the board shall be trans- 
 mitted to the Secretary of War, and shall be 
 laid by him before the President for his aproval 
 or disapproval and orders in the case." (Sec. 
 
 1250, R. S.) 
 
 See act of June 8, 1880 (21 Stat., 164), noted 
 below under "Laws relating specifically to 
 Marine Corps," as to re\-ision of retiring boards 
 by the Judge Advocate General. 
 
 'Disability incident to service.— "When a. 
 retiring board finds that an officer is incapaci- 
 tated for acti\-e serAice, and that his incapacitv 
 is the result of an incident of service, and such 
 decision is approved by the President, said 
 officer shall be retired from active serAT.ce and 
 placed on the hst of retired officers." (Sec. 
 
 1251, R. S.) 
 
 Disability not incident to service. — "When the 
 board finds that an officer is incapacitated for 
 active service, and that his incapacity is not 
 the result of any incident of service, and its de- 
 cision is approved by the President, the officer 
 shall be retired from" active ser\Tce, or wholly 
 retired from the service, as the President may 
 determine. The names of officers wholly retired 
 from the service shall be omitted from the Army 
 Register." (Sec. 1252, R. S.) 
 
 Officers entitled to hearing. — "Except in cases 
 where an officer may be retired by the President 
 upon his own application, or by reason of his 
 haATUg served forty-five years, or of his being 
 sixty-two years old, no o"fficer shall be retired 
 froni active serAdce, nor shall an officer, in any 
 case, be whoUv retired from the service, -vNTthout 
 a full and fair" hearing before an Army retiring 
 board, if, upon due summons, he demands it." 
 (Sec. 12.53, R. S.) 
 
 Retired rank. — "Officers hereafter retired 
 fi-om active serATce shall be retired upon the 
 actual rank held bv them at the date of retire- 
 ment." (Sec. 12-54, R. S.) 
 
 See laws noted below, under "Laws relating 
 specifically to Marine Corps," as to retirement 
 of officers with higher rank than that held on 
 the active list. 
 
 964 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1622. 
 
 By act of October 1, 1890, sec. 3 (26 Stat., 
 563), relating to examinations for promotion of 
 ojfficers of the Army below the rank of major, it 
 was pro^dded "that should the officer fail in 
 his physical examination, and be found inca- 
 pacitated for serAdce by reason of physical dis- 
 ability contracted in line of duty he shall be 
 retired mth the rank to which liis seniority 
 entitled him to be promoted." By act of 
 June 3, 1916, section 24 (39 Stat., 183), exist- 
 ing laws requiring examinations of officers of 
 the Army prior to promotion were extended 
 "to include promotions to all gi'ades below that 
 of brigadier general." By act of June 4, 1920 
 (41 Stat., 774), existing laws pro\'iding for the 
 examination of officers of the Army for promo- 
 tion were repealed, "except those relating to 
 physical examination, which shall continue 
 to be required for promotion to all grades be- 
 low that of brigadier general * * *." (See 
 laws and decisions noted under section 1599, 
 R. S., as to qualifications for promotion. See 
 also sees. 1493 and 1494, R. S., and notes thereto.) 
 
 "Any officer now holding office in any corps 
 or department who shall hereafter serve as 
 chief of a staff corps or department and shall 
 subsequently be retired, shall be retired with 
 the rank, pay, and allowances authorized by 
 law for the retired of such corps or department 
 chief." (Act Feb. 2, 1901, sec. 26, 31 Stat., 
 755.) 
 
 "Any officer who shall have served four 
 years as chief of a branch, and who may subse- 
 quently be retired, shall be retired v.'ith the 
 rank, pay, and allowances authorized by law 
 for the grade held by him as such chief." 
 (Act Jime 4, 1920, 41 Stat., 762, sec. 4, amend- 
 ing act June 3, 1916, sec. 4, 39 Stat., 167.) 
 
 Retired pay. — "Officers retired from active 
 ser\-ice shall receive seventy-five per centum 
 of the pay of the rank upon which they are re- 
 tired." (Sec. 1274, R. S.) 
 
 "Officers wholly retired from the service, 
 shall be entitled to receive, upon their retire- 
 ment, one year's pay and allowances of the 
 highest rank held by them, whether by staff 
 or regimental commission, at the time of their 
 retirement." (Sec. 1275, R. S.) 
 
 "That hereafter, except in case of officers re- 
 tired on account of wounds received in battle, 
 no officer now on the retired list shall be allowed 
 or paid any further increase of longevity pay, 
 and officers hereafter retired, except as "herein 
 provided, shall not be allowed or paid any 
 further increase of longe-vity pay above that 
 which has accrued at the date of their retire- 
 ment." (Act Mar. 2, 1903, 32 Stat., 932.) 
 
 "That hereafter any retired officer of the 
 Army who has been detailed to active duty, and 
 who has since his retirement, served on active 
 detaU shall be entitled to increases of longe\'ity 
 pay, to be computed as pro\dded by existing 
 statute for the computation of longevity pay, for 
 the time of his ser\'ice before retii'ement and on 
 active detail since his retirement." (Act May 
 12, 1917, 40 Stat., 48.) 
 
 "That hereafter any retired officer who has 
 been or shall be detailed on active duty, shall 
 receive the rank, pay, and allowances of the 
 gi'ade, not above that of major, that he would 
 have attiiined in due course of promotion if he 
 had remained on the active list for a period be- 
 
 yond the date of his retirement equal to the 
 total amoimt of time during which he has been 
 detailed on active duty since his retirement." 
 (Act June 3, 1916, 39 Stat., 183, sec. 24, re- 
 pealed by act Jime 4, 1920, sec. 24, 41 Stat., 
 771.) 
 
 "Hereafter any retired officer who has been 
 or shall be detailed on active duty shall receive 
 the rank, pay, and allowances of the grade, not 
 above that of colonel, that he would have at- 
 tained in due course of promotion if he had re- 
 mained on the active list for a period beyond the 
 date of his retirement equal to the total amoimt 
 of time during which he has been detailed to 
 active duty since his retirement." (Act June 
 4, 1920, sec. 61, 41 Stat., 786, amending act June • 
 3, 1916, sec. 127, 39 Stat., 217. See laws and 
 decisions noted below, as to retired officers of 
 the Marine Corps on active duty.) 
 
 "Hereafter retired officers below the grade of 
 brigadier general and retired waiTant officers 
 and enhsted men shall, when on active duty, 
 receive full pay and allowances." (Act Jime 4, 
 1920, sec. 33, 41 Stat., 777, amending act June 
 3, 1916, see. 40, 39 Stat., 191, 192.) 
 
 "In time of war retired officers may be em- 
 ployed on active duty in the discretion of the 
 rresident, and when so employed they shall 
 receive the full pay and allowances of their 
 grades." (Act June 4, 1920, sec. 51, 41 Stat., 
 785, amending act June 3, 1916, sec. 127, 39 
 Stat., 217.) 
 
 LAWS RELATING 
 
 SPECIFICALLY 
 CORPS. 
 
 TO MARINE 
 
 Civil ivar service. — "Officers of the Marine 
 Corps with creditable records who served 
 during the civil war shall, when retired, be 
 retired in Like manner and under the same 
 conditions as provided for officers of the Navy 
 who served during the civil war. " (Act Apr. 
 27, 1904, 33 Stat., 349.) 
 
 "Any officer of the Marine Corps below the 
 grade, of brigadier-general who served with 
 credit as an officer or as an enlisted man in the 
 regular or volunteer forces during the ci\'il war 
 prior to April ninth, eighteen hundred and 
 sixty-five, otherwise than as a cadet, and whose 
 name is borne on the official register of the 
 Marine Corps, and who has heretofore been, 
 or may hereafter be, retired on account of 
 wounds or disability incident to the ser\-ice, 
 or on account of age or after forty years' ser\ice, 
 may, in the discretion of the President, by and 
 with the advice and consent of the Senate, be 
 placed on the retired list of the Marine Corps 
 with the rank and retired pay of one grade 
 above that actually held by him at the time of 
 retirement: Provided, That this Act shall not 
 apply to any officer who received an advance 
 of grade since the date of his retirement or who 
 has been restored to the Marine Corps and 
 placed on the retired List by viitue of the pro- 
 visions of a special Act of Congress. " (Act 
 June 29, 1906, 34 Stat., 554.) 
 
 Ncv) commissions. — "Commissioned officers 
 of the Army, Navy, and Marine Corps on the 
 retired list whose rank has been or shall here- 
 after be advanced by operation of or in accord- 
 ance with law shall be entitled to and shall 
 receive commissions in accordance with such 
 
 965 
 
Sec. 1622. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 advanced rank." (Act Mar. 1. 1911. 36 Stat., 
 1354.) 
 
 Major General Commandant. — "Any officer 
 appointed under the provisions of this Act who 
 shall be retired from the position of command- 
 ant of tlie Marine Corps, in accordance with the 
 provisions of sections twelve hundred and fifty- 
 one, sixteen hundred and twenty-two, and 
 sixteen hundred and twenty-three. Revised 
 Statutes of the United States, or by reason of 
 age or length of service, shall have tlie rank and 
 retired pay of a major general ; if retired for any 
 other reason, he shall be placed on the retired 
 list of officers of the grade to which he Itelonged 
 at the time of his retirement. '' (Act Dec. 19, 
 1913, 38 Stat., 241, amended bv act Aug. 29, 
 
 1916, 39 Stat., 609.) 
 
 Retirement of colonels. — "That the provisions 
 of the Act entitled 'An Act making appropria- 
 tions for the naval service for the fiscal year 
 ending June thirtieth, nineteen hundred and 
 seventeen, and for other purposes,' approved 
 August twentyrninth, nineteen hundred and 
 sixteen, which read as follows: * * * 'That 
 officers of the Marine Corps with the rank of 
 colonel who shall hav^e served faithfully for 
 forty-five years on the active list shall, when 
 retired, have the rank of brigadier general; and 
 such officers who shall hereafter be retii'ed at the 
 age of sixty-four years before having served for 
 forty-five years, but who shall have served faith- 
 fully on the active list until retired, shall, on the 
 completion of forty years from their entry in 
 the naval service, have the rank of brigadier 
 general, ' are hereby repealed. " (Act May 22, 
 
 1917, sec. 14, 40 Stat., 87.) 
 
 Revision of retiring board records. — "The 
 office of the said judge advocate general shall 
 be in the Navy Department, where he shall, 
 under the direction of the Secretary of the 
 Nav^, receive, revise, and have recorded the 
 proceedings of all * * * boards for the 
 examination of officers for retirement * * * 
 in the naval service. " (Act June 8, 1880, 21 
 Stat., 164.) 
 
 Retiring boards on foreign stations. — "That 
 hereafter the Secretary of the Nav^y may author- 
 ize the senior officer present, or other command- 
 ing officer, on a foreign station to order * * * 
 retiring boards for the examination of such 
 candidates for * * * retirement in the 
 Navy and ^Marine Corps as may be serving in 
 such officer's command and may be directed to 
 appear before any such board." (Act Mar. 4, 
 1917, 39 Stat., 1171.) 
 
 Officers holding temporary rank. — "That any 
 officer of the permanent Nav^y or Marine Corps, 
 temporarily advanced in grade or rank in ac- 
 cordance v\ith the provisions of this Act, who 
 shall be retired from active service under his 
 permanent commission while holding such 
 temj)orary rank, except for physical disability 
 incurred in line of duty, shall be placed on the 
 retired list with the grade or rank to which his 
 position in the permanent Navy or Marine 
 Corps at the date of his retirement would entitle 
 him, and any person originally appointed tem- 
 porarily, as provided in this Act, shall not be 
 entitled to any rights of retirement, except for 
 physical disability incurred in line of duty." 
 (Act May 22, 1917, sec, 9, 40 Stat., 86.) 
 
 Retired officers on active duty. — "That here- 
 after any retired officer of the naval service who 
 shall be detailed on active duty shall, while so 
 serving, receive the active-duty pay and allow- 
 ances of the grade, not above that of lieutenant 
 commander in the Navy or of major in the 
 Marine Corps, that he would have attained in 
 due course of promotion if he had remained on 
 the active Ust for a period beyond the date of 
 his retirement equal to the total amount of 
 time during which he has been detailed on 
 active duty since his retirement: Provided, 
 That nothing herein shall be construed to 
 reduce the pay of any retired officer on active 
 duty whose retired pay exceeds the active-duty 
 pay and allowances for the grade of lieutenant 
 commander." (Act Aug. 29, 1916, 39 Stat., 
 581.) 
 
 "That hereafter, during the existence of war 
 or of a national emergency declared by the 
 President to exist, any commissioned or war- 
 rant officer of the Navy, Marine Corps, or Coast 
 Guard of the United States on the retired list 
 may, in the discretion of the Secretary of the 
 Navy, be ordered to activ^e duty at sea or 
 on shore; and any retired officer performing 
 such active duty in time of war or national 
 emergency, declared as aforesaid, shall be 
 entitled to promotion on the retired list to the 
 grade or rank, not abov^e that of lieutenant 
 commander in the Navj^ or major in the Marine 
 Corps or captain in the Coast Guard, and shall 
 thereafter receive the pay and allowances 
 thereof which his total active service as an 
 officer both prior and subsequent to retirement, 
 in the manner rendered by him, would have 
 enabled him to attain in due course of pi emo- 
 tion had such service been rendered continu- 
 ously on the active list during the period of 
 tinie last past." (Act July 1,^1918, 40 Stat., 
 717.) 
 
 "That during the existence of war or of a 
 national emergency, declared as aforesaid, any 
 commissioned or warrant officer of the Navy, 
 Marine Corps, or Coast Guard of the United 
 States on the retired list, while on active duty, 
 may be temporarily advanced to and commis- 
 sioned in such liigher grade or rank on the 
 retired list, not above that of lieutenant com- 
 mander in the Navy or major in the ]\Iarine 
 Corps or captain in the Coast Guard, as the 
 President may determine, and any officer so 
 advanced shall, while on active duty, be enti- 
 tled to the same pay and allowances as officers 
 of like grade or rank on the active list: Provided, 
 That any such commissioned or warrant officer 
 who has been so temporarily advanced in grade 
 or rank shall, upon his relief from activ^e duty, 
 or in any case not later than six months after 
 the termination of the war or of the national 
 emergency, declared as aforesaid, revert to the 
 grade or rank on the retired list and to the pay 
 and allowance status which he would have 
 held had he not been so temporarily advanced: 
 Provided further, That nothing in this Act shall 
 operate to reduce the pay and allowances now 
 allowed by law to retired officers." (Act July 
 1, 1918, 40 Stat., 717.) 
 
 As to details to educational institutions, see 
 section 1225, Revised Statutes, and laws and 
 decisions noted thereunder. 
 
 966 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1622. 
 
 Retired enlisted men. — "That when an enlisted 
 man shall have served thirty years either in the 
 Army, Navy, or Marine Corps, or in all, he shall, 
 upon making appUcation to the President, be 
 placed upon the retired list, with seventy-five 
 per centum of the pay and allowances he may 
 then be in receipt of, and that said allowances 
 shall be as follows: Nine dollars and fifty cents 
 per month in lieu of rations and clothing and 
 six dollars and twenty-five cents per month in 
 lieu of quarters, fuel, and light: Provided, That 
 in computing the necessary thirty years' time 
 all service in the Army, Navy, and Marine 
 Corps shall be credited." (Act Mar. 2, 1907, 34 
 Stat., 1217. By act of Mar. 3, 1899, sec. 17, 30 
 Stat., 1008, service in the Civil or Spanish- 
 American War was to be credited as double 
 time in computing the 30 years necessary for 
 retirement of enlisted men, and applicants for 
 retirement thereunder were required to be at 
 least 50 years of age unless physically disquali- 
 fied for ser\dce.) 
 
 "The Secretary of the Navy is authorized in 
 time of war or when a national emergency exists 
 to call any enlisted man on the retired list into 
 active service for such duty as he may be able 
 to perform. While so employed such enlisted 
 men shall receive the same pay and allowances 
 they were recei\ing when placed on the retired 
 list." (Act Aug. 29, 1916, 39 Stat., 591, super- 
 seding similar pro\ision in act Mar. 3, 1915, 38 
 Stat., 941.) 
 
 "That any enlisted man of the Navy or Ma- 
 rine Corps upon the retired list who has been 
 ordered into active ser\ice since April sixth, 
 nineteen hundred and seventeen, or who may 
 hereafter be ordered into active service, shall be 
 eUgible for promotion and he shall be entitled 
 to the pay and benefits of continuous service of 
 such rank and for such length of time as he is or 
 has been employed in active service, and when 
 relieved of active service shall retain upon the 
 retired list the rank and service held by him at 
 the time of such reUef , with the pay and allow- 
 ances of such rank on the retired hst; and the 
 accoimting officers of the Treasury are hereby 
 directed to allow in the accounts of any enlisted 
 man of the Navy or Marine Corps who resigned 
 from the rethed Ust in order to reenhst for ap- 
 pointment in a higher grade the same continu- 
 ous service pay and the benefits of such rank to 
 which he may have been appointed upon reen- 
 ■ listment, as if his service had been continuous, 
 and any difference in pay from the date of reen- 
 listment shaU be credited to his accoimt." 
 (Act July 1, 1918, 40 Stat., 719.) 
 
 "Thatsomuchof the Actof July 1, 1918 (Pub- 
 lic Numbered 182), as authorizes the promotion 
 of retired enlisted men of the Navy and Marine 
 Corps ordered to active duty shall not be so 
 construed as to make illegal promotions of such 
 men as have heretofore been made to warrant 
 grades or as to deprive them of any of the pay, 
 allowances, or other benefits accruing under 
 such promotion." (Act July 11, 1919, 41 Stat., 
 153.) 
 
 Construction of section 1622 in general. 
 — Section 1622, Revised Statutes, simply pro- 
 vides for the conditions precedent to the retire- 
 ment of an officer of the Marine Corps, but in 
 no way changes the jurisdiction to which he is 
 subject or the conditions under which he may 
 
 be again placed on active duty. (Jonas v. IT. 
 S., 50 Ct. Cls., 281.) 
 
 These "conditions" unquestionably are con- 
 ditions precedent to retiring, and not con- 
 ditions subsequent. Section 1622 is simply a 
 pro^-ision that a commissioned officer of the 
 Marine Corjjs is entitled to the same right of 
 retirement as an officer of the Army. When so 
 retired, he is a retired officer of the Maiine 
 Corps, subject to the laws and regulations es- 
 tablished for the government of the Navy. 
 (Jonas V. U. S., 50 Ct. Cls., 281.) 
 
 It will be observed that while section 1622 
 refers to the retirement of officers of the Marine 
 Corps and entitles them to the benefit of all 
 laws relating to the retirement of officers of the 
 Army, the pro\'ision in the act of April 23, 
 1904 (33 Stat., 259, 264), relating to advance- 
 ment of Army officers on the retired List 
 who had Civil War service, refers to what may 
 be done in the discretion of the President, by 
 and with the advice and consent of the Senate, 
 for the benefit of certain officers of the Army 
 after their retirement is an accompUshed fact, 
 whether theretofore or thereafter retired. In 
 other words, the provision is not a law in refer- 
 ence to the retirement of officers of the Army, 
 but an act authorizing special benefits to cer- 
 tain officers of the Army who have been or may 
 be retired. (25 Op. Atty. Gen., 262.) 
 
 The conditions mentioned in section 1622 are 
 unquestionably conditions precedent to retire- 
 ment, and not conditions subsequent; accord- 
 ingly, held that the Army act of June 3, 1916, 
 section 24, above quoted, is not applicable to 
 the Marine Corps, under section 1622, in so far 
 as it affects the rank of retired officers who have 
 performed or who may in the future perform 
 the required amount of active duty. (File 
 26509-158 : 2, June 27, 1916.) 
 
 It is well settled that the Marine Corps, while 
 in many respects a separate and distinct organ- 
 ization, is prunarily a part of the Navy. In the 
 matter of retirement, however, as of pay, the 
 Marine Corps has been classed with the Army 
 (sees. 1612, 1622). The language of section 
 1622 is broad and sweeping, and as it is the 
 only provision upon the subject of retirement 
 it must be held to mean just what it says; in 
 other words, officei's of the Marine Corps, in the 
 matter of retirement, were placed by that sec- 
 tion upon exactly the same footing as officers 
 of the Army. (25 Op. Atty. Gen., 262.) 
 
 Employment of retired oflicers on ac- 
 tive duty. — ^\^len a marine officer was put 
 upon the retired list he was subject to the or- 
 ders of the Secretary of the Navy within the 
 statutory conditions, and came within the 
 provisions of the act of August 22, 1912 (37 
 Stat., 329), as to assignment of retired "naval" 
 officers to active duty, and not the act of April 
 23, 1904 (33 Stat., 264), relating to assignment 
 of retired officers of the Army to active duty. 
 Each of these statutes contained provisions re- 
 lating to the pay of retired officers assigned to 
 active duty thereunder. Held, that the re- 
 tired marine officer so assigned to active duty 
 under the act of 1912, became entitled upon 
 such assignment to the pay and allowances 
 provided for in said act. (Jonas v. U. S., 50 
 Ct. Cls., 281.) 
 
 967 
 
Sec. 1629. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 The act of June 7, 1900 (31 Stat., 703), au- 
 thorized the assignment of "any naval oJHcer 
 on the retired list" to active duty during a pe- 
 riod of twelve years from its passage. During 
 the life of tliis atatute the Secretary of the 
 Navy detailed retired oflicers of the Marine 
 Coi"ps to active duty, and his right to do so 
 seems never to have been (lueslioned. And 
 during the interim between the expiration of 
 this statute by limitation and its substantial 
 reenactment by the act of August 22, 1912 (37 
 Stat., 329), neither retired naval nor marine 
 oflicers were employed on active duty. After 
 the enactment of the latter statute, the Secre- 
 tary of the Navy renewed the practice followed 
 under the former statute. This substantial 
 reenactment of the statute by I'ongress was in- 
 dicative of legislative approval of the depart- 
 mental construction of the same, as stated. 
 (Jonas V. U. S., 50 Ct. Cls., 281.) 
 
 Congress, by the act of June 3, 1916 (39 Stat., 
 183), gave to retired oflicers of the Army de- 
 tailed on active duty the longe\'ity pay which 
 would accrue to them by reason of their added 
 active service after retirement, which pay they 
 could not thereafter receive by reason of the act 
 of March 2, 1903 (32 Stat. , 932\. The said act of 
 June 3, 1916, applied to a retired officer of the 
 Marine Corps on active duty so as to entitle him 
 to increase in longevity pay, although he held 
 the rank of major, and an Anny officer of the 
 rank of major could not be advanced to a higher 
 rank under said act. (Jonas v. U. S., 53 Ct. 
 Cls., 254. See above, under "Construction of 
 section 1622, in general." See also act of Aug. 
 29, 1916, quoted alcove, with respect to retired 
 officers of the Marine Corps on active duty.) 
 
 Rank on retirement. — The Anny law (sec. 
 1254, R. S.), providing that "officers hereafter 
 retired from active service shall be retired upon 
 the actual rank held by them at the date of re- 
 tirement," is applicable to the Marine Corps. 
 A captain in that corps, holding the office of 
 Judge Advocate General of the Navy with the 
 rank, pay, and allowances of a colonel while so 
 serving, was in law and in fact a colonel in the 
 Marine Corps while holding said office of Judge 
 Advocate General, and was entitled to be re- 
 tired as such; and under section 1274, R. S., 
 was entitled to receive 75 per centum of the 
 pay of colonel. Under the act of June 8, 1880 
 (21 Stat., 164), the rank of a Judge Advocate 
 General of the Navy is not assimilated but ac- 
 tual rank. (Remey v. U. S., 33 Ct. Cls., 218. 
 See note to sec. 421, R. S., as to retirement of 
 chiefs of bureaus.) 
 
 Rank on retirement for Civil War serv- 
 ice.— See note above, imder "Construction of 
 section 1622, in general." 
 
 Section 11 of the act of March 3, 1899 (30 
 Stat., 1007), which fixes the rank and pay of 
 retired officers of the Navy who served with 
 credit during the Civil War, held not applicable 
 to officers of the Marine Corps. (24 Op. Atty. 
 Gen., 709.) 
 
 The said act of March 3, 1899, was evidently 
 drafted •with care, and with a clear understand- 
 ing of the distinctions between the Navy and 
 the Marine Corps. The first seventeen sections, 
 in definite terms, apply to the Navy; then 
 follow the sections which with equal exactness 
 apply to the Marine Corps. These two arms of 
 
 the service are recognized and treated through- 
 out the entire statute as separate and distinct, 
 and for each of them appropriate provision is 
 made. The unambiguous language of section 
 11 makes it apply only to officers of the Navy, 
 and there is nothing ^\ithin the entire act 
 wliich in any way indicates that any officer not 
 in the Navy was intended to be inc luded witliin 
 the provisions of said section. The mere fact 
 that one set of officers, not mentioned, are as 
 meiitorious as those expressly provided for 
 can not justify a construction Uberal enough to 
 give to the former benefits granted in clear 
 terms only to the latter. (24 "Op. Atty. Gen., 
 709, June 26, 1903.) 
 
 In the matter of retirement, officers of the 
 Marine Corps with creditable records who 
 served during the Civil War are governed en- 
 tirely by the act of April 27, 1904 (33 Stat., 324, 
 349), which provides that they shall be retired 
 "in like manner and under the same conditions 
 as provided for officers of the Navy who served 
 during the Civil War." To this extent that 
 act alters and amends section 1622, Revised 
 Statutes. (25 Op. Attv. Gen., 262.) 
 
 By act of April 23, 1904 (33 Stat., 259, 264), 
 provision was made for the advancement on 
 the retired list of Armv officers who served dur- 
 ing the Civil War. By act of April 27, 1904 
 (3.3 Stat., 324, 349), passed four days later, spe- 
 cial provision was made for the retirement of 
 officers of the Marine Corps who served during 
 the Civil War, in accordance \\ith Navy laws. 
 Held, that the Army act of April_ 23, 1904, has 
 no application by virtue of section 1622, Re- 
 vised Statutes, to officers of the Marine Corps 
 who served during the Civil War. (25 Op. 
 Atty. Gen., 262.) 
 
 That Congress never intended the Army act 
 of April 23, 1904, to apply to the Marine Corps 
 is showTi by its incorporation in the Navy act, 
 passed four days later, of a provision specifically 
 dealing with the retirement of officers of the 
 Marine Corps with creditable records who 
 served during the Civil War. This practically 
 contemporaneous legislative interpretation of 
 the former act must be held to be conclusive. 
 (25 Op. Atty. Gen., 262.) 
 
 Retirement for disability not incident 
 to the service. — A board of officers duly con- 
 stituted was convened by order of the Secre- 
 tary of the Navy July 30, 1874, to inquire into _ 
 and determine whether a lieutenant of ma- ' 
 rines was incapacitated for active service. The 
 board found him so incapacitated, and that the 
 cause of his incapacity was not an incident of 
 the ser\ice. The President, August 18, 1874, 
 endorsed on the proceedings and findings of the 
 board: "I concur in opinion with the retiring 
 board in the case of * * *. Let him be re- 
 tired on furlough pay." Held, first, that the 
 action of the President amounted to an approval 
 of the finding of the board and to a retirement 
 of the officer from active service within section 
 1252, Revised Statutes, and that he was retired 
 in conformity with the law applicable to 
 officers of the Marine Corps; and second, that, 
 the officer thereby became entitled to receive 
 pay according to the rates established by law 
 for retired officers of the Army, viz, 75 per 
 centum of the pay of the actual rank held by 
 him at the date of retirement, notwithstanding 
 
 968 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1622. 
 
 a different rate of pay, viz, furlough pay, was 
 named bv the President in retiring him. (15 
 Op. Atty. Gen., 442.) 
 
 For officers of the Marine Corps who are re- 
 tired from acti\'e ser\"ice, as for officers of the 
 Army who are so retired, there is but one rate 
 of pay estabhshed by law, \'iz, 75 per centum 
 of the pay of the rank upon which they are re- 
 tired (sec. 1274, R. S.); and it is not competent 
 to the President to place these retired officers 
 on a different rate of pay than that which the 
 law has fixed. (15 Op. Atty. Gen., 442.) 
 
 The first sentence of the endorsement of the 
 President upon the record of the proceedings 
 of the board (above quoted) admits of no other 
 construction than that it was meant to express 
 his approval of the finding of the board. 
 Having thus approved the finding, it rested 
 entii'ely in his discretion whether the officer 
 should be retired from active sei-vice or be 
 wholly retired fi'om the ser^ice (sec. 1252, 
 R. S.); but it was necessary that one or the 
 other be done, as the law is imperative that 
 when the decision of the board is approved by 
 the President the officer "shall be retired," 
 etc. The direction given in the last sentence 
 of the endorsement clearly indicates that it 
 was the determination of the President that the 
 officer be retii-ed from "active ser\T.ce" simply. 
 The compensation of an officer thus retired 
 being fixed by statute and not left to be de- 
 termined by the President, in so far as that 
 direction limits the officer's pay on the retired 
 list it must be treated as of no effect. (15 Op. 
 Atty. Gen., 442.) 
 
 Sections 1454 and 1593 Revised Statutes, 
 as to the retirement of naval officers on fm- 
 lough pay for disabihty not incident to the serv- 
 ice, do not apply to officers of the Marine 
 Corps, for that corps different legislation is 
 pro\T.ded. (15 Op. Atty. Gen., 442. See 
 sees. 1454 and 159.3, R. S., and notes thereto.) 
 
 Retirement for length of service. — The 
 act of June 30, 1882 (22 Stat., 118^, referring to 
 the retirement of officers of the Army who have 
 served 40 years "in the regular or A-olunteer 
 service, or both, " was intended by the use 
 of the words, "volunteer ser\ice, " to refer to 
 the volunteer ser\-ice in the Civil War, and did 
 not intend to anticipate a new volunteer sei-v- 
 ice such as that authorized under the act of 
 April 22, 1898. (22 Op. Atty. Gen., 199.) 
 
 Under the Army reorganization act of June 
 4, 1920 (41 Stat., 761), the ser\ice wliich by 
 existing law is held to be the equivalent of 
 Army service in counting length of ser\ice for 
 increase of pay or for retirement is service in 
 the Marine Corps and ser\T.ce in the Navy. 
 (27 Comp. Dec, 170, citing acts of Feb. 24, 
 1881, 21 Stat., 346; Sept. 30, 1890, 26 Stat., 
 '504; and June 22, 1906 and Mar. 2, 1907, 34 
 Stat., 451 and 1217.) 
 
 Retirement for age. — The Army act of 
 June 30, 1882 (22 Stat., 118), relative to retire- 
 ment, applies to an officer of the regular Ai-my 
 who is 64 years of age, temporarily serving 
 under a volunteer commission, but his retire- 
 ment thereunder does not affect his status in 
 the volunteer service. (22 Op. Atty. Gen., 
 199.) 
 
 The said act of June 30. 1882, does not ap- 
 ply to a volunteer officer who is 64 years of age 
 
 and who does not at the same time hold a 
 commission in the regular Army. (22 Op. 
 Atty. Gen., 199.) 
 
 An officer of the regular Army who at the same 
 time holds a commission in the volunteer 
 Army may continue to hold and exercise his 
 latter commission after ha\T.ng been placed 
 upon the retired list of the regular Army by 
 reason of the age limit. _ (22 Op. Atty. Gen. , 199 . ) 
 
 The Army retired lists apply to the regular 
 Army alone, with due credit given for the time 
 of volunteer serA-ice of oflicers of the regular 
 Army in the Civil War. (22 Op. Atty. Gen., 
 199.) 
 
 Status of retired officer. — An officer of the 
 Marine Corps retii-ed from active seindce only, 
 and not wholly retired fi'om service, is an 
 officer in the employ of the Government and 
 so within the prohibition of section 1782 of 
 the Revised Statutes prohibiting compensa- 
 tion to "any officer or clerk in the employ of 
 the Government" for rendeiing ser\ices in 
 relation to any claim or other matter in which 
 the United States is a party, before any depart- 
 ment, court-martial, bureau, officer, or any civil, 
 military, or naval commission. (29 Op. Attv. 
 Gen., 397.) 
 
 In determining the status of a retired ofiicer 
 of the Marine Corps, as to whether or not he is 
 an officer of the Government, the Marine Corps 
 must, under section 1622, Revised Statutes, 
 be considered as part of the Army. (29 Op. 
 Atty. Gen., 397, 400.) 
 
 Retired enlisted men. — Officers on the 
 retired list are a part of the Army; they may be 
 assigned to duty and wear the uniform and con- 
 tinue to be borne on the Army Register, and 
 are subject to trial by coiu"t-martial; enlisted 
 men after retirement are not a part of the Armv. 
 (Murphy v. U. S., .38 Ct. Cls., 511.) _ 
 
 Section 1094, Revised Statutes, in express 
 terms declares that "the officers of the Army 
 on the retired Ust" are a part of the Army. 
 By act of March 2, 1899, section 7 (30 Stat., 
 979), the President was authorized to employ 
 retired officers of the Army on active duty in 
 time of war. This act is a recognition by Con- 
 gi'ess that, though retii-ed officers of the Army 
 were in express terms declared to be a part of 
 the Army, they were not theretofore subject 
 to active military duty. There are no such 
 laws A\ith respect to enlisted men on the re- 
 tired list. There is no statute declaring them 
 to be a part of the Anny, nor is there any 
 statute subjecting them to military duty. 
 When he is retired, an enlisted man thereby 
 sexeTs his connection with the Army to go on 
 the retii-ed Ust, and can not thereafter be said 
 to be a component jjart of the Army. (Miirphv 
 V. U. S., 38 Ct. Cls., 611.) 
 
 It is no answer to say that enlisted men on 
 the rethed Ust are a part of the Army because 
 subject to court-martial; if that were true, 
 which the court does not concede, they never- 
 theless could not be assigned to military duty. 
 Their retired pay is d.ven them, not for services 
 to be rendered in the future, but for services 
 which they haAe faithfully rendered prior to 
 their retirement. (Mui'phv v. U. S., 38 Ct. 
 Cls., 511.) 
 
 On reconsideration, the decision affirmed 
 that retired enUsted men are not entitled to 
 
 969 
 
Sec. 1623. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 the additional pay for length of service given 
 by section 1284, Revised .Statutes, because 
 they do not "remain continuously in the 
 Army" within the intent of the statute; not- 
 withstanding the existence of statutes (over- 
 looked in the former decision) wherein it is 
 expressly provided that "the Army of the 
 United States shall consist of * * * the 
 ofhcers and enlisted men of the Army on the 
 retired list." Under these statutes the Army 
 consists in jxirt of enlisted men on the retired 
 list, and to that extent, therefore, the court 
 ■was in error in certain statements contained in 
 the previous decision. But those acts do not 
 make enlisted men on the retired list a part of 
 the organization of the Army, subject to mili- 
 tary duty as enlisted men on the active list; 
 on the contrary, it is conceded that such re- 
 tired enlisted men are not subject to military 
 duty, even at the command of the President. 
 If not subject to military duty, then in what 
 way and for what purpose can it be said that 
 enlisted men on the retired list are a part of 
 the Armv? (Murphy v. U. S., 39 Ct. Cls., 
 178.) 
 
 Retired enlisted men en route to their homes 
 after retii-ement are not "troops of the United 
 States'' (as used in the land grant acts relating 
 to transportation for the Government). They 
 travel for their own purposes. Congress has 
 declared that such retired enlisted men shall 
 for certain purjioses be deemed a part of the 
 Army (act Feb. 2, 1901, 31 Stat., 748); but 
 they may be employed only after Congress has 
 authorized the raising of volunteer forces; and 
 not even then for field duty (act Apr. 2.5, 1914, 
 sec. 11, 38 Stat., 347, 3-50). TheArmy Regu- 
 lations for 1913 make no provision requiring 
 any service from retired enlisted men. Prac- 
 tically they have retired from, and not simply 
 into, a different branch of, the Army. The 
 fact that they may thereafter be called into 
 the Army does not make them "troops of the 
 United States." Any male citizen may at 
 some time be called into the service. (U. S. 
 V. Union Pac. R. Co., 249 U. S., 354, 360, 
 affirming 52 Ct. Cls., 226.) 
 
 There is no statute specifically providing that 
 retired enlisted men shall constitute a part of 
 the Navy or that retired enlisted men of the 
 Navy shall be amenable to trial by naval court- 
 martial, although it is provided by statute that 
 retired officers of the Navy shall be amenable to 
 
 trial l)v court-martial. (File 26251-22500, Mar. 
 9, 192<).) 
 
 Under present laws it is very doubtful 
 whether an enlisted man on the retired list of 
 the Navy, who is not employed on active duty, 
 is subject to trial by naval court-martial. 
 However, a trial having taken place in such a 
 case, and the accused acquitted, the proceed- 
 ings, findings, and acquittal were approved, in- 
 stead of being set aside for lack of jurisdiction, 
 as the latter action would have exposed the 
 accused to trial by the civil authorities of the 
 United States for the same offense. (File 
 26251-22500, Mar. 9, 1920.) 
 
 As to retired pay of enlisted men in the Ma- 
 rine Band, see note to section 1613, Revised 
 Statutes. 
 
 The provision in the act of July 1, 1918, relat- 
 ing to promotion of retired enlisted men of the 
 Navy and Marine Corps ordered into active 
 service (quoted above under this section), 
 authorizes the promotion of such retired en- 
 listed men to higher enlisted ranks and ratings 
 on the retired list; and does not authorize the 
 appointment of retired enlisted men to warrant 
 or commissioned rank either on the active or 
 retired lists. (File 7657-634:1, Aug. 30, 1918, 
 citing 7857-834, Aug. 12, 1918.) 
 
 It is lawful to appoint retired enlisted men as 
 temporary warrant and temporary commis- 
 sioned officers on the active list, under the act 
 of May 22, 1917 (40 Stat., 84). File 7657-634:1, 
 Aug. 30, 1918, citing 27321-103, July 17, 1917.) 
 
 There is no doubt that retired enlisted men 
 may be permanently appointed as warrant or 
 commissioned officers on the active List, if prop- 
 erly qualified. (File 7657-634:1, Aug. 30, 
 1918.) 
 
 If appointed a temporary commissioned or 
 warrant officer on the active list under the act 
 of May 22, 1917, on the termination of such ap- 
 pointment a retired enlisted man would revert 
 to the rating held by him on the retired list at 
 the time of his appointment. If appointed a 
 permanent commissioned or warrant officer on 
 the active list, he would not revert, nor should 
 he be relieved from active duty, as such an ap- 
 pointment takes him off the retired list and 
 destroys his status as an enlisted man. (File 
 7657-634:1, Aug. 30, 1918.) 
 
 Retirement of Major General Conunand- 
 ant. — See note to section 1601, Revised 
 Statutes. 
 
 Sec. 1623. [Retiring board, how composed.] In case of an officer of the Ma- 
 rine Corps, the retiring board shall be selected by the Secretary of the Navy, 
 under the direction of the President. Two-fifths of the board shall be selected 
 from the Medical Corps of the Navy, and the remainder shall be selected from 
 officers of the Marine Corps, senior in rank, so far as may be, to the officer 
 whose disability is to be inquired of. — (3 Aug., 1861, c. 42, s. 17, v. 12, p. 289.) 
 
 See note to section 1622, Revised Statutes, and 
 
 particularly section 1246, R. S., noted 
 
 thereunder, as to composition of Army 
 
 retiring boards. 
 
 Membersliip of retiring board. — The act 
 
 of August 3, 1861 (sec. 1623, R. S.), does not 
 
 authorize the Secretary of War or the Secretary 
 
 of the Navy to assemble a mixed board of Army 
 
 and Marine officers for inquiry into the cases of 
 disabled officers of the Armv and of the Marine 
 Corps. (10 Op. Atty. Gen.] 116.) 
 
 The act of August 3, 1861, providing for the 
 better organization of the Military Establish- 
 ment, authorized the creation of boards to de- 
 termine the disabilities of officers of the Army 
 and Marine Corps. Section 16 provided that 
 
 970 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1623. 
 
 if any commissioned officer of the Ai'my or 
 ^^arine Corps shall become incapable of per- 
 forming the duties of his office, he shall be 
 placed upon the retired list, etc.; section 17 
 enacted that in order to carry out the provisions 
 of the act the Secretary of War or Secretary of the 
 Navy, as the case might be, under the direction 
 and appro^'al of the President of the United 
 States, shall, from time to time as occasion may 
 requii-e, assemble a board of not more than nine 
 nor less than five commissioned officers, two- 
 fifths of whom shall be of the medical staff; 
 the board, except those taken from the medical 
 staff, to be composed, as far as may be, of his 
 seniors in rank. Held, that the intent of the act 
 was to cause disabled officers to be retired by a 
 board composed of commissioned officers of 
 their owti branch of the ser\T.ce; that it author- 
 ized no joint action of the Secretary of War and 
 Secretary of the Navy in forming a retiring 
 board ; nor did it give either Secretary the power 
 to convene a mixed board composed in part of 
 officers not under his control. (10 Op. Atty. 
 Gen., 116.) 
 
 An officer of one branch of the service can not 
 with accm'acy be called senior in rank to an offi- 
 cer of another branch; a major in the Army is no 
 more senior to a captain of marines than he is to 
 a captain in the NaA-y. The term in its mili- 
 tary sense is applicable only to relatively 
 higher grades of the same service. Its use oth- 
 erwise would create confusion. (10 Op. Atty. 
 Gen., 116.) 
 
 Under the act of August 3, 1861, section 17, 
 for the better organization of the Military Es- 
 tabhshment, the Secretary of the Na\'y has 
 discretionary power to select for the retirement 
 of officers of the Marine Corps such commis- 
 sioned officers subject to Ms control and orders 
 as he may deem proper. (10 Op. Atty. Gen., 129.) 
 
 The act of August 3, 1861, section 17, author- 
 izing the Secretary of the Navy to assemble 
 boards for the retii'ement of marine officers, 
 does not provide that the board shall consist of 
 officers of that corps, but simply that it shall 
 consist of commissioned officers. That the sec- 
 tion did not contemplate a board composed ex- 
 clusively of marine officers is clear, because it 
 provides that two-fifths of the board shall be of 
 the medical .staff; and there being no medical 
 staff attached to the Marine Corps this require- 
 ment of the statute could only be fulfilled by 
 placing on the board naval surgeons. (10 Op. 
 Atty. Gen., 129, 130.) 
 
 There being no provision in the law which 
 directs the Secretary of the Navy to organize 
 these boards for the retirement of marine officers 
 from the officers of the Marine Corps, and this 
 being a law for the government of the Navy 
 ■within the meaning of the act of 1834 (sec. 1621, 
 R. S.), held that the Secretaiy of the Navy, 
 under the President, has full power to organize 
 boards for the retirement of marine officers of 
 the Navy of senior rank, under section 17 of 
 said act of August 3 , 1861 . ( 10 Op . Atty . Gen . , 
 129, 130.) 
 
 Retiring board illegally constituted. — 
 The proceedings of a board constituted without 
 authority and in \T.olation of the act of August 
 3, 1861, section 17 (embodied in sec. 1623, R. 
 S.), would be open to future question as to their 
 validity. (10 Op. Atty. Gen., 116.) 
 
 The action of a retiring board can only be 
 valid as it accords with the law of its creation. 
 From that law alone it must draw the breath of 
 life. If, therefore, it is constituted without the 
 direct authority of that law, or in \'iolation of 
 its proA-isions. the A'alidity of its action would 
 be open to very serious future question. (10 
 Op. Atty. Gen.* 116, 119.) 
 
 54641= 
 
 -90_ 
 
 -62 
 
 971 
 
CHAPTER TEN. 
 
 ARTICLES FOR THE GOVERNMENT OF THE NAVY. 
 
 [For decisions of the Navy Department construing and applying the Articles fob 
 THE Government of the Navy, see Naval Digest, 1916, and supplements thereto.] 
 
 Sec. 
 1624. 
 
 Persons amenable to articles. 
 
 Art. 
 1. 
 
 2. 
 3. 
 
 4. 
 
 Commander's duty of example and cor- 
 rection. 
 Divine serxace. 
 Irreverent behavior. 
 Offenses punishable by death. 
 
 1. 
 
 2. 
 
 3. 
 
 4. 
 
 5. 
 
 6. 
 
 7. 
 
 8. 
 
 9. 
 10. 
 11. 
 
 12. 
 
 13. 
 14. 
 15. 
 
 Mutiny. 
 
 Disobedience of orders. 
 
 Striking superior officer. 
 
 Intercourse with an enemy. 
 
 Messages from an enemy. 
 
 Desertion in time of war. 
 
 Deserting trust. 
 
 Sleeping on watch. 
 
 Leaving station. 
 
 Willfulstranding or injury of vessel. 
 
 Unlawful destruction of public prop- 
 erty. 
 
 Striking flag or treacherously yield- 
 ing. 
 
 Cowardice in battle. 
 
 Deserting duty in battle. 
 
 Neglecting orders to prepare for 
 battle. 
 
 Neglecting to clear for action. 
 
 Neglecting to join on signal for battle. 
 
 Failing to encourage the men to fight. 
 
 Failing to seek encounter. 
 
 Failing to afford relief in battle. 
 
 16. 
 
 17. 
 18. 
 19. 
 20. 
 
 5. Spies, etc. 
 
 6. Murder. 
 
 7. Imprisonment in penitentiary'. 
 
 8. Offenses punishable at discretion of court- 
 
 martial : 
 Profanity, falsehood, etc. 
 Cruelty. 
 Quarreling. 
 Fomenting quarrels. 
 Duels. 
 Contempt of superior officer. 
 
 7. Combinations against superior officer. 
 
 8. Mutinous words. 
 Neglect of orders. 
 
 Preventing destruction of public prop- 
 erty. 
 
 Negligent stranding. 
 Negligence in convoy service. 
 Recei\'ing articles for freight. 
 False muster. 
 
 Waste of public property, etc. 
 Plundering on shore. 
 Refusing to apprehend offenders. 
 Refusing to receive prisoners. 
 Absence from duty without leave. 
 Violating general orders or regula- 
 tions. 
 Desertion in time of peace. 
 
 1. 
 2. 
 3. 
 4. 
 5. 
 6. 
 
 9. 
 10. 
 
 11. 
 12. 
 13. 
 14. 
 15. 
 16. 
 17. 
 18. 
 19. 
 20. 
 
 21. 
 22. 
 
 Harboring deserters. 
 
 Art. 
 9. 
 10. 
 11. 
 12. 
 13. 
 14. 
 
 15. 
 16. 
 17. 
 18. 
 19. 
 20. 
 
 21. 
 22. 
 23. 
 24. 
 25. 
 
 26. 
 
 27. 
 28. 
 29. 
 30. 
 31. 
 32. 
 33. 
 34. 
 35. 
 
 36. 
 37. 
 
 38. 
 
 39. 
 40. 
 41. 
 42. 
 43. 
 
 44. 
 45. 
 46. 
 
 47. 
 
 48. 
 
 Reduction of officers to enlisted rating. 
 Desertion by resignation. 
 Dealing in supplies. 
 Importing dutiable goods. 
 Distilled spirits only as medical stores. 
 Fraud against United States; embezzle- 
 ment, etc. 
 List of persons claiming prize-money. 
 Removing property from prize. 
 Maltreating persons on prize. 
 Returning fugiti^•es from ser^dce. 
 Enlisting deserters, minors, etc. 
 Duties of commanding officers: 
 
 1. Men received on board. 
 
 2. List of officers, men, and passengers. 
 
 3. Deaths and desertions. 
 
 4. Property of deceased pereons. 
 
 5. Accounts of men received. 
 
 6. Accounts of men sent from the ship. 
 
 7. Inspection of pro\-isions. 
 
 8. Health of the crew. 
 
 9. Attendance at final payment of the 
 
 crew. 
 
 government 
 
 of the 
 offending 
 
 10. Articles for the 
 
 Navy. Punishment for 
 against this article 
 
 Authority of officers after loss of vessel. 
 
 Offenses not specified . 
 
 Offenses committed on shore. 
 
 Punishments by order of commander. 
 
 Punishment by officer temporarily com- 
 manding. 
 
 Summary courts-martial; convening au- 
 thority. 
 
 Constitution of summary courts-martial. 
 
 Oaths of members and recorder. 
 
 Testimony before summary courts-martial. 
 
 Punishments by summary courts. 
 
 Disrating for incompetency. 
 
 Execution of summary court sentence. 
 
 Remission of summary court sentence. 
 
 Proceedings and record of summary court. 
 
 Same punishments by general court- 
 martial . 
 
 Dismissal of officers. 
 
 Dismissed officer may demand trial. 
 
 General com'ts - martial; convening au- 
 thority. 
 
 General courts; constitution of. 
 
 Oaths of members and judge-advocate. 
 
 Oath of witness. 
 
 E\T.dence; witnesses; perjury; contempt. 
 
 Charges and specifications; arrest of ac- 
 cused. 
 
 Duty of officer arrested. 
 
 Proceedings of general courts-martial. 
 
 Absence of members. 
 
 Return of absent member; witnesses re- 
 called. 
 
 Suspension of pay. 
 
 972 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1624. 
 
 Art. 
 
 49. Prohibited punishments. 
 
 50. Sentences, how determined. 
 
 51. Adequate punishment; recommendation to 
 
 mercy. 
 
 52. Authentication of judgment. 
 
 53. Confirmation of sentence. 
 
 54. Remission and mitigation of sentence. 
 
 55. Courts of inquiry, by whom ordered. 
 
 56. Courts of inquiry, constitution of. 
 
 Art. 
 
 57. Courts of inquiry, powers of. 
 
 58. Oaths of members and judge-advocate. 
 
 59. Rights of party inquired of. 
 
 60. Proceedings, how authenticated; use in 
 
 other cases. 
 
 61. Limitation of trials ; general offenses. 
 
 62. Limitation of trials; desertion in time of 
 
 peace. 
 
 63. Limitation of punishments; time of peace. 
 
 Sec. 1624. [Persons amenable to articles.] The Navy of the United 
 States shall be governed by the following articles. — (17 July, 1862, c. 204, s. 1, 
 V. 12, p. 600.) 
 
 General rule. — Everyone connected with 
 the military or naval service of the United 
 States is amenable to the jurisdiction which 
 Congress has created for their government, and 
 while thus serving surrenders his right to be 
 tried by the civil courts. (In re Davison, 21 
 Fed. Rep., 618.) 
 
 The discipline necessary to the efficiency of 
 the Army and Navy required other and swifter 
 modes of trial than are furnished by the 
 common-law courts; and in pursuance of the 
 power conferred by the Constitution, Congress 
 has declared the kinds of trial and the manner 
 in which they shall be conducted for offenses 
 committed while the party is in the military 
 or naval service. Everyone connected with 
 those branches of the public service is amenable 
 to the jurisdiction which Congress has created 
 for their government, and while thus serving 
 surrenders his right to be tried by the civil 
 courts. All other persons, citizens of states 
 where the courts are open, if charged with crime 
 are guaranteed the inestimable privilege of 
 trial by jury. (Ex parte Milligan, 4 Wall., 
 2, 123.) 
 
 By the articles of war ' ' any person in the mili- 
 tary service of the United States" may be tried 
 by court-martial for the offenses described in 
 those articles. But the words, ' ' in the military 
 service" there used are not to be taken in «) 
 general a sense as to include all who are em- 
 ployed in connection with that service in any 
 capacity whatever. They must be construed 
 with the provision by which the articles are 
 preceded, and which declares that the latter 
 shall govern "the armies of the United States." 
 So construed, they properly include only such 
 as belong to and serve in the Army fixed by 
 law. Hence, the question of the amenability 
 of an individual to coui't-martial jurisdiction 
 under the above-quoted provision is not to be 
 determined according to the nature of his em- 
 ployment; that is to say, whether it is military 
 or not, but solely according to the circumstance 
 of his belonging or not belonging to the military 
 establishment as defined by law. (16 Op. 
 Atty. Gen., 13, 16.) 
 
 To have the effect of subjecting to trial by 
 court-martial a person not otherwise subject to 
 such jurisdiction an act of Congress ought to 
 be clear and unambiguous. (14 Op. Atty. 
 Gen., 268, 274.) 
 
 In passing upon the question whether a clerk 
 in the Army is subject to court-martial, it is 
 proper to inquire at the outset whether he 
 belongs to any of those classes of persons who 
 
 are, by the terms of the statutes in force, made 
 liable to military law, as the inclusion of an 
 individual in some one of such classes is essen- 
 tial to bring him under court-martial jurisdic- 
 tion. (16 Op. Atty. Gen., 13, 14.) 
 
 In every instance in which Congress has im- 
 pressed a military character on any body of 
 men whom they intended to divest of the civil 
 right of a trial by jury, besides the impressment 
 of a military character they have uniformly 
 and expressly declared that they should be 
 subject to the rules and articles of war. A 
 course of legislation so long continued and so 
 uniform marks the sacred respect in which Con- 
 gress have ever regarded the right of trial by 
 jury, and will justify us in assuming it as their 
 sense that this right is never to be taken away 
 by implication, never by the mere impressment 
 of a military character on a body, never without 
 a positive provision to that effect. (1 Op. 
 Atty. Gen., 276.) 
 
 Civilians. — ^The right to trial by jury is 
 preserved to everyone accused of crime who is 
 not attached to the Army or Navy, or militia 
 in actual service. (Ex parte Milligan, 4 Wall., 
 2, 123.) 
 
 A statutory provision that any person who 
 shall contract to furnish suppUes of any kind 
 or description in the Army or Navy shall be 
 deemed and taken as a part of the land or 
 naval forces of the United States for which he 
 shall contract to furnish said supplies is uncon- 
 stitutional in so far as it would operate to subject 
 a contractor to trial by court-martial. Congress 
 may, no doubt, under their power to raise 
 armies, declare who shall be soldiers; that is, 
 what citizens shall be liable to perform military 
 duty, but they can not by mere enactment 
 place a man in the Army who is not. If they 
 could, then they might, by a simple declara- 
 tion, place every person in the United States 
 in the Army, no matter what his pursuits 
 actually continued to be, and subject him to 
 trial by court-martial; a proposition so mon- 
 strous that it is believed no one would be found 
 so hardy as to maintain it. (Ex parte Hender- 
 son, 11 Fed. Cas. No. 6349; compare Hohnes 
 V. Sheridan, 12 Fed. Cas. No. 6644; see also 
 note to Art. 63, A. G. N., as to cruel and 
 unusual punishments.) 
 
 A quartermaster's clerk in the Army, that is, 
 a civilian employed in that capacity, is not 
 amenable to the jurisdiction of a court-martial; 
 nor are superintendents of national ceme- 
 teries, appointed under sections 4873 and 
 4874, Revised Statutes. (16 Op. Atty. Gen., 
 
 973 
 
Sec. 1624. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 13; see also, 16 Op. Atty. Gen., 48; compare 
 decisions noted below as to paymasters' clerks 
 in the Navy.) 
 
 In this country military tribunals, whether 
 courts-martial or milita^-y commissions, can 
 not constitutionally be granted jurisdiction to 
 try persons charged with acts or offenses com- 
 mitted outside of the field of military opera- 
 tions or territory under martial law or other 
 peculiarly military territory, except members 
 of the military or naval forces or those imme- 
 diatelv attached to the forces, such as camp 
 followers. (31 Op. Atty. Gen., 356, 361; com- 
 pare note to art. 5, A. G. N.) 
 
 Military jurisdiction is of t^vo kinds — first, 
 that which is conferred and defined by statute; 
 second, that which is derived from the com- 
 mon law of war. Military offenses under the 
 statute must be tried in the manner therein 
 directed, but military offenses which do not 
 come ■n-ithin the statute must be tried and 
 punished under the common law of war. The 
 first is exercised by courts-martial — while the 
 latter are tried by military commissions. (Ex 
 parte Vallandigham, 1 Wall., 243, 249.) 
 
 The Supreme Court of the United States 
 has no power to review by certiorari the pro- 
 ceedings of a military commission ordered by 
 a general officer of the United States Army 
 commanding a military department. (Ex parte 
 Vallandigham, 1 Wall., 243.) 
 
 The clause in the Constitution providing 
 that "the judicial power of the United States 
 shall be vested in one supreme court and in 
 such inferior courts as the Congress may from 
 time to time ordain and establish," refers only 
 to courts of the United States, which military 
 courts are not. (Mechanics, etc.. Bank v. 
 Union Bank, 22 Wall., 276, 295.) 
 
 A military commission is not a court \vithin 
 the meaning of the Fourteenth section of the 
 judiciary act of 1789. (Ex parte Vallandigham, 
 1 Wall., 243, 251.) 
 
 The Constitution did not prohibit the cre- 
 ation by military authority of courts for the 
 trial of civil causes during the Civil War in 
 conquered portions of the insurgent States. 
 The establishment of such courts is but the 
 exercise of the ordinary rights of conquest. 
 Though called in the order establishing it a 
 "provost court," a larger jurisdiction than one 
 over minor criminal offenses might, in fact, 
 have validly been given to it by the power 
 which constituted it. (Mechanics, etc., Bank 
 V. Union Bank, 22 Wall., 276, 296.) 
 
 As to military commissions and their jurisdic- 
 tion over ciWlians, see generally note to Con- 
 stitution, Art. I, sec. 8, clause 11. 
 
 Persons discharged from the Navy. — See 
 article 14, A. G. N., and note thereto; and see 
 notes to articles 61 and 62, A. G. N. 
 
 Whether, when an officer while under charge 
 of a military offense is dismissed from the serv- 
 ice by the President, he may afterwards be 
 arrested and tried by coui-t-martial for the 
 offense, dubitatur. (8 Op. Atty. Gen., 328.) 
 
 In this case the officer was placed under 
 arrest on charges of breaking arrest, killing his 
 commanding officer, and desertion. For the 
 homicide involved in killing his commanding 
 officer he had been indicted for murder, and 
 tried and acquitted before a ci^'il court of the 
 
 State. Afterwards he was dropped from the 
 rolls for absence without leave. The ques- 
 tion presented was whether a dismissed officer 
 can be tried by court-martial for a military 
 offense committed by him prior to his dis- 
 missal. This question not decided, but re- 
 marked that there is no express pro^ision in 
 the statutes to settle the (juestion definitely, 
 one way or the other; nor is there any authori- 
 tative adjudication on the subject, at least in 
 the United States; and that the case of a 
 seaman whose enlistment expires while he is 
 under charges is very different from that of an 
 officer who in the same circumstances is dis- 
 missed by the President. ("8 Op. Atty. Gen., 
 328.) 
 
 Contingencies will undoubtedly arise in 
 which it becomes desu^able to drop from the 
 rolls a deserting officer in order to supply his 
 place by promotion; where, still due regard 
 to the principles of justice and the discipline 
 of the 8er\dce unite to call for the exemplary 
 punishment of the offender. Can it be in- 
 flicted without authority of statute? That is 
 the doubt. (8 Op. Atty. Gen., 328, 332.) 
 
 Charges and specifications were preferred 
 against an officer of the Navy who deserted, at 
 the time of desertion, and sent to a permanent 
 general court-martial for trial, where they were 
 held pending apprehension of the deserter. 
 Held, that the removal of said officer from the 
 Navy by filling his place and grade by the 
 appointment of a successor, with the advice 
 and consent of the Senate, does not divest the 
 jurisdiction of a naval court-martial to try him 
 upon the charge which had been previously 
 preferred; that the statute of limitations is not 
 involved in the case, inasmuch as the charges 
 and specifications were preferred by the Sec- 
 retary of the Navy and sent to the general coiu-t- 
 martial in ample time to assure his trial when- 
 ever apprehended. (Naval Dig., 1916, p. 177, 
 citing file 26251-6278, Aug. 17, 1915.) 
 
 A charge of desertion was preferred against 
 an officer of the Navy on May 31, 1912, and was 
 tried by general court-martial April 9, 1917, 
 the said officer having in the meantime been 
 dropped from the Navy and superseded by the 
 appointment of a successor by the President of 
 the United States ^vith the advice and consent 
 of the Senate. He was found guilty of the 
 charge, the specification of which was "proved 
 by plea"; and was sentenced "to be dismissed 
 from the United States naval ser\'ice." The 
 proceedings and findings were approved by the 
 Secretary of the Navy, who set aside the sen- 
 tence, o^\'ing to the fact that the officer's con- 
 nection with the ser\'ice had alreadv been 
 terminated. (C. M. O. 26, 1917.) 
 
 A court-martial has no jurisdiction over an 
 officer after he has left the ser^dce, although his 
 offense was committed while in the service. 
 (24 Op. Atty. Gen., 570; citing 5 Op. Attv. 
 Gen., 55, 58.) 
 
 A person discharged from the na^■al service 
 before proceedings are instituted against him 
 for violations of the Articles for the Government 
 of the Navy, excepting article 14, can not 
 thereafter be brought to trial before a court- 
 martial for such violations, though committed 
 while he was in the service. However, in view 
 of the unsatisfactory state of the authorities, 
 
 9T4 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1624. 
 
 and of the grave objections on principle to this 
 conclusion, suggested that there is no reason why- 
 jurisdiction should not be asserted by the 
 Secretary of the Navy in such a case, in order 
 to obtain, if possible, an authoritative judicial 
 determination of the question. (31 Op. Atty. 
 Gen., 521.) 
 
 Article 14, paragraph 11, A. G. N., makes 
 express provision for the trial of persons who 
 have been discharged from the Navy; a proviso 
 of somewhat similiar imjjort is inserted in article 
 62, fixing a period of limitation in cases of deser- 
 tion, viz, "that said limitation shall not begin 
 until the end of the term for which such person 
 was enlisted in the service." These provi- 
 sions, extending the jurisdiction after severance 
 from the service in certain cases only, seem to 
 indicate, on well-known principles of con- 
 struction, that Congress did not intend so to 
 extend the jurisdiction in other cases. (31 Op. 
 Atty. Gen., 521, 527; compare notes to arts. 61 
 and 62, A. G. N.) 
 
 An enlisted man of the Army furloughed for 
 the unexpired portion of his enlistment, held, 
 not thereby discharged from the Army. (In 
 re Markun, 232 Fed. Rep., 1018.) 
 
 Where jurisdiction attached prior to 
 discharge. — The principle that where juris- 
 diction has attached it can not be divested by 
 mere subsequent change of status, has been 
 applied as justifjdng the trial and sentence of 
 an enlisted man after the expiration of the term 
 of enlistment, and the execution of a sentence 
 after the lapse of many years and the severance 
 of all connection with the Army. (Carter v. 
 McClaughry, 183 U. S., 365, 383; citing Barrett 
 V. Hopkins, 7 Fed. Rep., 312; Coleman v. 
 Tennessee, 97 U. S., 509; and 16 Op. Atty. 
 Gen., 349.) 
 
 It appears to be well settled that Avhere juris- 
 diction has once attached it can not be divested 
 by mere subsequent change of status; and this 
 principle justifies the trial and sentence of a 
 person out of the service, where jurisdiction 
 has attached while he was in the service. (31 
 Op. Atty. Gen., 521, 528; citing Carter v. Mc- 
 Claughrv, 183 U. S., 365, 383; Coleman v. 
 Tenn., 97 U. S., 509; 16 Op. Atty. Gen., 349, 
 352; Barrett v. Hopkins, 7 Fed. Rep., 312; in 
 re Walker, 3 Am. Jurist, 281; in re Bird, 2 
 Sawyer, 33; in re Dew, 25 Law Reporter, 538, 
 540;"U. S. V. Reaves, 126 Fed. Rep., 127, 131; 
 Winth. Mil. L., p. 120, etc.) 
 
 A soldier in the Army, sentenced in 1865 to 
 be hanged, but who made his escape, and some 
 years later was dishonorably discharged from 
 the Army, may nevertheless be legally executed 
 in 1879, pursuant to the sentence of the court, 
 his status as a military prisoner awaiting execu- 
 tion of sentence not having been altered by his 
 discharge. But recommended that the sentence 
 be commuted to imprisonment for life or for 
 such term of years as the President may in his 
 discretion determine. (16 Op. Attv. Gen., 
 349.) 
 
 Where the jurisdiction of the military court 
 has attached in respect of an officer of the Army, 
 this includes not only the power to hear and 
 determine the case but the power to execute and 
 enforce the sentence. The different provi.sions 
 of the sentence (dismissal, fine, and imprison- 
 ment) took effect concurrently, while the 
 
 accused was under the control of the military 
 authorities of the United States as a com- 
 missioned officer of the Army; the date of the 
 order of dismissal, of the infliction of the fine, 
 and of the beginning of the imprisonment, were 
 the same date. The accused was proceeded 
 against as an officer of the Army, and jurisdic- 
 tion attached in respect of him as such; having 
 been sentenced, his status was that of a military 
 prisoner held by the authority of the United 
 States as an offender against its laws. He was 
 a military prisoner, though he had ceased by 
 execution of the sentence of dismissal to be a 
 soldier. Where jurisdiction has attached, it 
 can not be divested by mere subsequent change 
 of status. (Carter v. McClaughrv, 183 U. S., 
 365, 382.) 
 
 Where discharge revoked as illegal. — 
 Where by sentence of a court-martial a soldier 
 is discharged from the Army before the ex- 
 piration of his term of enlistment, and such 
 sentence is afterwards set aside as null and 
 void, the status of the soldier is not affected in 
 any way by such sentence, and he is deemed 
 to have been in the service all the time be- 
 tween the sentence and the order setting it 
 aside. Wliile in fact discharged from the 
 Army, but before the expiration of his term of 
 enlistment, the said soldier committed a homi- 
 cide: Held, that he might be arrested and 
 tried for such homicide by the military au- 
 thorities, the discharge being in the meantime 
 set aside as null and void, and the accused 
 being at the time a soldier de jure. (In re 
 Bird, 3 Fed. Cas. No. 1,428.) 
 
 A naval prisoner made a bogus confession, 
 claiming that he had committed a murder for 
 which he was wanted by the civil authorities; 
 he was thereupon discharged from the Navy 
 and delivered to the civil authorities in accord- 
 ance with their request: Held, that the Secre- 
 tary of the Navy has authority to revoke the 
 discharge so granted, being the result of fraudu- 
 lent representations made by said enlisted 
 man, and thereupon to reinstate him in his 
 former status in the Navy and to bring him to 
 trial by court-martial for his misconduct. (28 
 Op. Atty. Gen., 170.) 
 
 An honorable discharge granted to a soldier, 
 based on certain statements made by him and 
 afterwards discovered to be false, may legally 
 be revoked on the ground that it was given 
 under a misapprehension of the facts, caused 
 by the false statements aforesaid; such dis- 
 charge must be treated as a nullity, having 
 been obtained by the grossest falsehood and 
 perjury. (16 Op. Atty. Gen., 349.) 
 
 See also notes to articles 32 and 54, A. G. N. 
 
 Where enlistment expired but not dis- 
 charged. — Where the enlistment of a marine 
 has expired, and there is no legal authority 
 for retaining him in the service, he is in point 
 of law entirely discharged from the Marine 
 Corps, and can not be prevented from leaving. 
 If he choose to remain and perform military 
 service until obtaining a regular discharge, 
 although not a soldier he would be liable in a 
 limited degree to the regulations necessary to 
 the peace and subordination of a military 
 garrison. (U. S. v. Travers, 28 Fed. Cas. No. 
 16537; see note to Constitution, Art. I, sec. 8, 
 clause 14, under "IV. Jurisdiction of courts- 
 
 975 
 
Sec. 1624. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 martial,'" subhoadinc;, ''Persons not subject to 
 jurisdiction of Federal courls-martial;" and see 
 below, 'Court-martial prisoners in confine- 
 ment after discharge."). 
 
 The jurisdiction of a court-martial over an 
 enlistc^d man for offenses committed during 
 the period of enlistment extends after the 
 termination of said period, whether or not he 
 has in the meantime been arrested or other 
 steps taken to enforce the jurisdiction; he 
 continues in the naval service and amenable to 
 court-martial until there has been some further 
 action, such as a discharge, to terminate the 
 status created by his contract of service. (Op. 
 Atty. Gen., Feb. 27, 1922, file 26251-26615: 8; 
 see note to Art. 61, A. G. N.; and note to Con- 
 stitution, Art. I, sec. 8, clause 14, under "IV. 
 Jurisdiction of courts-martial.") 
 
 Court-martial prisoners in confinement 
 after discharge. — Section 1361, Revised 
 Statutes, relating to the Army, providing that 
 ''all prisoners under confinement in said mili- 
 tary prisons, undergoing sentence of courts- 
 martial, shall be liable to trial and imprison- 
 ment by courts-martial under the Rules and 
 Articles of War, for offenses committed during 
 the said confinement, " is intended to confer 
 jurisdiction in the cases of "all' ' such prisoners, 
 including those who were discharged from the 
 Army by the same sentence which condemned 
 them to imprisonment; a prisoner, though 
 thus discharged from the Army, is subject to 
 trial by court-martial for offenses committed 
 while serving sentence; and section 1361, as 
 thus construed, is not liable to constitutional 
 objection. Under the power to make rules for 
 "tne government and regulation of the land 
 and naval forces, " Congress has provided that 
 cases of this kind, arising in the Army, shall be 
 tried by court-martial. (16 Op. Atty. Gen., 
 293, 295.) 
 
 Section 1361, Revised Statutes, providing 
 that prisoners under confinement in military 
 prisons, undergoing sentences of Army courts- 
 martial, shall be Liable to trial and punishment 
 by courts-martial, etc., is not in conflict with 
 the fifth amendment to the Constitution, as 
 applied to a prisoner undergoing confinement 
 imposed by sentence of court-martial, pursuant 
 to which sentence he had been dismissed from 
 the Army. (Ex parte Wildman, 29 Fed. Cas. 
 No. 17,653a.) 
 
 An act of Congress providing that prisoners 
 confined in military prisons under sentence of 
 court-martial shall be liable to trial and punish- 
 ment by court-martial for offenses committed 
 during said confinement is not in conflict with 
 the Constitution providing for trial by jury; 
 and said statute is applicable to one confined 
 in a military prison, though at the time of his 
 sentence to such confinement he was likewise 
 sentenced to be discharged from the service, 
 and that part of the sentence had been executed . 
 (In re Craig, 70 Fed. Rep., 969.) 
 
 A person held as a military prisoner for 
 punishment for a military offense of which he 
 has been con\icted is subject to military law, 
 and to trial by court-martial for offenses com- 
 mitted during such imjjrisonment, even if the 
 prior sentence resulted in his discharge as a 
 soldier. (Kahn v. Anderson, 255 U. S., 1, 
 citing Carter v. McClaughry, 183 U. S., 365, 
 
 383; 16 Op. Atty. Gen., 292; in re Craig, 70 
 Fed. Rep., 969; ex parte Wildman, Fed. Cas. 
 No. 17,6.53a; see also art. 22, par. e, A. W., 
 June 4, 1920, 41 Stat., 787.) 
 
 A general court-martial prisoner in the Navy 
 may be tried by summary covu-t-martial or 
 deck court prior to the expiration of his period 
 of enlistment, and may afterwards be held to 
 serve out the sentence imposed by such court, 
 irrespective of whether or not his enlistment 
 expires in the meantime (file 26504-100, Dec. 
 21, 1910); as to trial by court-martial of naval 
 prisoners for offenses committed after expira- 
 tion of enlistment, see file 26.509-259, March 12, 
 1918, recommending legislation similar to that 
 above cited with respect to the Army. 
 
 See also note above, under ''Where enlist- 
 ment expired but not discharged." 
 
 Naval reservists released from active 
 duty. — An enrolled member of the Naval 
 Reserve Force can not be tried by a naval 
 court-martial for an offense alleged to have 
 been committed while in active ser-vice after 
 he has been released from active service and 
 entered civil life, no charges or specifications 
 having been preferred against him prior to his 
 release from active duty, and the offense not 
 being governed by article 14, A. G. N. (U. S. 
 V. Warden or Keeper of Naval Prison, 265 Fed. 
 Rep., 787.) 
 
 Under the act of August 29, 1916 (39 Stat., 
 587), subjecting enrolled members of the Naval 
 Reserve Force to the laws governing the Navy 
 only during such time as they may by law be 
 required to serve in the Navy, held that such 
 enrolled member of said force can not be 
 arrested and tried by court-martial after release 
 from active service for an offense committed 
 while in active service; nor can he be recalled 
 to active duty, even in time of war, where the 
 motive of the order recalling him is to make 
 him subject to naval discipline. (U. S. v. 
 MacDonald, 265 Fed. Rep., 695. See note to 
 art. 24, A. G. N.) 
 
 Such member can be recalled into active 
 service only in conformity ■with the laws and 
 regulations on that subject, and can not be 
 recalled to give the naval court-martial juris- 
 diction to try him for an offense committed 
 while he was in active service. (U. S. v. 
 Warden or Keeper of Naval Prison, 265 Fed. 
 Rep., 787.) 
 
 A person discharged from the naval service 
 can be prosecuted under the criminal laws of 
 the United States for any act during the period 
 of his active duty, made a crime under the 
 general laws of the United States, unless he 
 has been previously placed in jeopardy. (U. 
 S. V. MacDonald, 265 Fed. Rep., 695.) 
 
 See note below, under "Naval Reserve 
 Force." 
 
 Void enlistment. — While a minor between 
 certain ages is eligible for enlistment with the 
 consent of his parents or guardians, and in such 
 cases his enlistment ■without their consent is 
 not void but voidable, held that the enlistment 
 of a minor below the minimum age of enlist- 
 ment, and who belongs to one of the classes 
 whose enlistment is prohibited by statute, is 
 not merely voidable but void; and in such a 
 case, as the minor never became a soldier sub- 
 
 976 
 
The Navy. 
 
 PL 2. REVISED STATUT S. 
 
 Sec. 1624. 
 
 ject to military law, he could not be a deserter 
 under the Articles of War and so is not amenable 
 to the jurisdiction of a court-martial for that 
 offense. (Hoskins v. Pell, 239 Fed. Rep., 279; 
 L. R. A., 1917 D, 1053, construing sec. 1118, 
 R. S., relating to enlistments in the Army, 
 corresponding to sec. 1420, R. S., relating to 
 enlistments in the Navy.) 
 
 The enlistment of such a minor is perempto- 
 rily forbidden by statute, \vithout regard to 
 the consent of "his parent or guardian; his 
 enlistment is as invalid as the enlistment of an 
 insane or intoxicated person. (Hoskins v. 
 Pell, 239 Fed. Rep., 279; L. R. A., 1917 D, 
 1053; see also ex parte Rush, 246 Fed. Rep., 
 172, 174; ex parte Beaver, 271 Fed. Rep., 493, 
 496.) 
 
 If the enlistment of a person in the Navy was 
 void, then there is no right to discipline h im 
 at any period of his service, even though he 
 was not undertaking to escape it. If his en- 
 listment was void (which means that he was 
 never in the service), then for any act by any 
 person claiming to be in authority over him, 
 whereby any of the natural rights of the alleged 
 enlisted' man were denied him, as, for instance, if 
 he had been imprisoned for an hour, or a day, 
 or a week, because of some infraction of the 
 rules, a civil action for damages would lie in 
 hia favor against the particular individuals who 
 were responsible for such punishment. No 
 rule of law can be cited that will ever protect a 
 public officer from the consequences ofany act 
 which he may imagine he is performing as a 
 public officer, but which involves an exercise 
 of authority by him as to some person over 
 whom he is absolutely without authority. 
 (Ex parte Rock, 171 Fed. Rep., 240, 242.) 
 
 For other cases, see note to section 1420, 
 Revised Statutes. 
 
 Voidable enlistment. — An enlisted soldier 
 can not avoid a charge of desertion by showing 
 that at the time when he voluntarily enlisted 
 he had passed the age at which the law allows 
 enlisting officers to enlist recruits. (In re 
 Grimlev, 137 U. S., 147.) 
 
 Under section 1624, Revised Statutes, article 
 8, providing for punishment for desertion, 
 where a minor between the ages of 14 and 18 
 years, without the consent of his father, then 
 living, enlisted in the Navy and received the 
 usual pay from the date of his enlistment 
 until he deserted, was arrested and detained 
 as a deserter, held that he could not be dis- 
 charged from the custody of the naval authori- 
 ties on a writ of habeas corpus sued out by his 
 father, although the latter was entitled to 
 demand his son's discharge from the Navy as 
 soon as he had answered and satisfied the charge 
 for desertion then pending against him. (U.S. 
 V. Reaves, 126 Fed. Rep., 127.) 
 
 For other cases, see notes to sections 761 and 
 1419, Revised Statutes, and see note to article 
 22, A. G. N. 
 
 Detailed to duties other than military. — 
 Where a military officer detailed for duty in the 
 Freedmen's Bureau has been guilty of misap- 
 propriation of money or any violation of the 
 rules and regulations governing disbursing 
 officers of the Army, he may be tried by court- 
 martial in the same manner as anv other such 
 Army officer. (14 Op. Atty. Gen., 268, 269.) 
 
 Regularly enlisted men of the Navy em- 
 ployed on vessels in the Coast and Geodetic 
 Survey, pursuant to section 4685, Revised 
 Statutes, would be governed by the Articles 
 for the Government of the Navy just as if serv- 
 ing on a vessel of war. (19 Op. Atty. Gen., 
 182, 183.) 
 
 Officers of the Army are in the eye of the law 
 on nulitary duty although employed as such 
 officer under statutes of the United States in 
 the public service on duties not in them- 
 selves pertaining to the Army; the status of 
 such an officer was not changed by his detail to 
 such duties, and he was still subject to the mili- 
 tarv jurisdiction. (Carter v. McClaughry, 183 
 U.'S., 365, 399-400.) 
 
 Consent of accused. — Conceded, that the 
 possession by the accused of a status essential 
 to the exercise by the court-martial of its 
 power was jurisdictional, and therefore may 
 not be held to have existed merely because of 
 an estoppel. (Givens v. Zerbst, 255 U. S., 
 11, 19, affirming ex parte Givins, 262 Fed. 
 Rep., 702.) 
 
 Chiefs of bureaus in the Navy Depart- 
 ment. — The chief of the Bureau of Medicine 
 and Surgery in the Nav^y Department is amen- 
 able to the jurisdiction of a naval court-martial 
 upon charges and specifications preferred 
 against him for acts done as such chief. (18 
 Op. Atty. Gen., 176.) 
 
 A naval court-martial has jurisdiction to try 
 the Paymaster General of the Navy and sen- 
 tence him to be dismissed from the position 
 of chief of bureau, and to be suspended from 
 rank and duty as pay inspector. Though 
 chief of a bureau in the Navy Department, 
 he is not a civil officer. (Smith v. V. S., 26 
 Ct. Cls., 143.) 
 
 A writ of prohibition will not be issued to 
 prohibit a naval covui;-martial from trying a 
 naval officer, being PajTuaster General and 
 chief of a bureau in the Navy Department, 
 upon a charge of " scandalous conduct tending 
 to the destruction of good morals," with speci- 
 fications alleging that as such chief of bureau 
 he made contracts and payments in disregard 
 of the interests of the Government, and to pro- 
 mote the interests of contractors, in violation 
 of law and to the great scandal and disgrace of 
 the service and injury of the United States; 
 and upon the additional charge of "culpable 
 inefficiency in the performance of duty,'' 
 v^th speciiifications setting forth acts similar 
 to those specified under the first charge. 
 (Smith V. Whitney, 116 U. S., 167.) 
 
 An offense committed by a naval officer 
 serving as chief of a bureau in the Navy De- 
 partment, relating to the duties of his office as 
 bureau chief, is a case arising in the naval 
 forces and therefore punishable by court- 
 martial under the articles and regulations made 
 or approved by Congress in the exercise of, 
 the powers conferred upon it by the Con- 
 stitution. (Smith V. WTiitney, 116 U. S., 
 167, 186.) 
 
 See also note to section 421, Revised Stat- 
 utes; and see Wales v. Whitney (114 U. S., 
 564), and Swaim v. United States (165 U. S., 
 553), the latter case referring to the trial of the 
 Judge Advocate General of the Army. 
 
 977 
 
Sec. 1624, Art. 1. 
 
 rt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 Paymasters' clerks. — See note to section 
 138(5, Revised Statutes, as to status of pay- 
 masters' clerks a|)i)ointed pursuant thereto, 
 and for amendatory statutes abolishing pay- 
 mastei-s' clerks and substituting the grades of 
 acting i)ay clerk, pay clerk, and chief pay clerk. 
 
 A jiay master's clerk on duty in the Navy 
 is a person ' ' in the naval forces of the United 
 States" \\'ithin the meaning of those terms as 
 used in the act of March 2, 1863 (12 Stat., 696, 
 sec. 1; art. 14, A. G. N.), and amenable to the 
 jurisdiction of a court-martial as provided for 
 in that act. (In re Bogart, 3 Fed. Cas. No. 
 1596; see also in re Reed, 20 Fed. Cas. No. 
 11636; U. S. V. Bogart, 24 Fed. Cas. No. 
 14616; ex parte Reed, 100 U. S., 13.) 
 
 A paymaster's clerk in the Navy, regu- 
 larly appointed and assigned to duty on a 
 recei^^Jlg ship, is a person in the naval ser\^- 
 ice of the United States, subject to be tried 
 and con\'icted and sentenced to imprisonment 
 by a general court-martial for a \aolation of 
 section 1624, Revised Statutes. (Johnson v. 
 Sa>Te, 158 U. S. 109.) 
 
 Civil engineers. — See "historical note" to 
 section 1413, Revised Statutes, as to status of 
 civil engineers in the Navy. 
 
 Civil engineers in the Navy are subject to 
 jurisdiction of naval courts-martial. (15 Op. 
 Atty. Gen., 597; see note to art. 36, A. G. N.) 
 
 Marine Corps. — See section 1621, Revised 
 Statutes, and note thereto, as to laws and regu- 
 lations governing the Marine Corps and mem- 
 bers of the Medical Department serving there- 
 with, and the discipline of its officers and en- 
 listed men. 
 
 Whether a naval court-martial ordered under 
 the authority of the Secretary of the Navy has 
 jurisdiction to try a lieutenant colonel of the 
 Marine Corps will depend upon whether 
 the alleged misconduct of the accused took 
 place while he was employed in the land serv- 
 ice or in the naval service. (5 Op. Atty. 
 Gen., 706, construing act of July 11, 1798, 
 sec. 4; see later laws and decisions noted under 
 sec. 1621, R. S.) 
 
 Naval Reserve Force. — "Men transferred 
 to the Fleet Naval Reserve shall be governed 
 by the laws and regulations for the government 
 of the Navy * * *. " (Act Aug. 29, 1916, 
 39 Stat., 591.) 
 
 "Enrolled members of the Naval Reserve 
 Force when in active service shall be subject 
 to the laws, regulations, and orders for the gov- 
 ernment of the Regular Navy, and the Secre- 
 tary of the Navy may, in his discretion, permit 
 the members of the Naval Reserve Force to 
 wear the unifonn of their respective ranks, 
 gi-ades, or ratings while not in active service, 
 and such members shall, for any act committed 
 l)y them while wearing the uniform of their 
 respective ranks, grades, or ratings, be subject 
 to the laws, regulations, and orders for the 
 government of the Regular Navy. " (Act July 
 1, 1918, 40 Stat., 712.) 
 
 See note above, under "Naval reservists re- 
 leased from active dutv. ' ' 
 
 Coast Guard. — "Whenever, in time of war, 
 the Coast Guard operates as a part of the Navy 
 in accordance with law, the personnel of that 
 service shall 1)8 subject to the laws prescril>ed 
 for the government of the Navy: Provided, 
 That in the initiation, prosecution, and com- 
 pletion of disciplinary action, including re- 
 mission and mitigation of punishments for any 
 offense committed by any officer or enlisted 
 man of the Coast (iuard, the jurisdiction shall 
 hereafter depend upon and be in accordance 
 with the laws and regulations of the department 
 having jurisdiction of the person of such 
 offender at the various stages of such action: 
 Provided further, That any ])unishment im- 
 posed and executed in accordance with the 
 provisions of this section shall not exceed that 
 to which the offender was liable at the time of 
 the commission of his offense. ' ' (Act Aug. 29, 
 1916, 39 Stat., 600.;) 
 
 Lighthouse Service. — "That any of the 
 personnel of the Lighthouse Service who may 
 be transferred as herein pro\'ided shall, while 
 imder the jurisdiction of the Navy Department 
 or War Department, be subject to the laws, 
 regulations, and orders for the government of 
 the Navy or Army, as the case may be, in so 
 far as the same may be applicable to persons 
 whose retention permanently in the military 
 service of the United States is not contem- 
 plated by law. " (Act Aug. 29, 1916, 39 Stat., 
 602.) 
 
 Coast and Geodetic Survey. — "That any 
 of the personnel of the Coast and Geodetic 
 Survey who may be transferred as herein pro- 
 vided shall, while under the jurisdiction of 
 the War Department or Navy Department, 
 have proper military status and shall be subject 
 to the laws, regulations, and orders for the gov- 
 ernment of the Army or Navy, as the case may 
 be, in so far as the same may be applicable to 
 persons whose retention permanently in the 
 military service of the United States is not 
 contemplated by law." (Act May 22, 1917, 
 sec. 16, 40 Stat., 88.) 
 
 Public Health Service. — "When ofBcers of 
 the United States Public Health Service are 
 serving on Coast Guard vessels in time of w&r, or 
 are detailed in time of war for duty ^nth the 
 Army or Navy in accordance with law, they 
 * * * shall be subject to the laws prescribed 
 for the government of the ser\T.ce to which they 
 are respectively detailed. " (Act July 9, 1917, 
 40 Stat., 242.) 
 
 For other cases, see note to article 5, A. G. 
 N., as to jurisdiction over ci^dlians acting as 
 spies; article 6, A. G. N., as to jurisdiction of 
 murder by civilian on naval hospital ship; 
 article 22, as to concurrent jurisdiction of civil 
 authorities; articles 32 and 53, as to revocation 
 of illegal discharge; section 1422, Revised 
 Statutes, as to men detained after expiration 
 of enlistment; section 1519, Revised Statutes, 
 as to court-martial of midshipmen; and see, 
 generally, notes to articles 61, 62, and 63, 
 A. G. N., and to the Constitution, Article I, 
 section 8, clauses 11, 13, and 14. 
 
 Article 1. [Commander's duty of example and correction.] The commanders 
 of all fleets, squadrons, naval stations, and vessels belonging to the Navj^, 
 are required to show in themselves a good example of virtue, honor, patriotism, 
 
 978 
 
The Navy. Pt. 2. REVISED STATUTES. Sec. 1624, Art. 4. 
 
 and subordination; to be vigilant in inspecting the conduct of all persons who 
 are placed under their command; to guard against and suppress all dissolute 
 and immoral practices, and to correct, according to the laws and regulations 
 of the Nav}^, all persons who are guilty of them; and any such commander who 
 offends against this article shall be punished as a court-martial may direct. — 
 (17 July, 1862, c. 204, s. 1, v. 12, p. 601, art. 1.) 
 
 Art. 2. [Divine service.] The commanders of vessels and naval stations 
 to which chaplains are attached shall cause divine service to be performed on 
 Sunday, whenever the weather and other circumstances allow it to be done; 
 and it is earnestly recommended to all officers, seamen, and others in the 
 naval service diligently to attend at every performance of the worship of 
 Almighty God.— (17 July, 1862, c. 204, s. 1, v. 12, p. 601, art. 2.) 
 
 Art. 3. [Irreverent behavior.] Any irreverent or unbecoming behavior 
 during divine service shall be punished as a general or sunmiary court-martial 
 may direct.— (17 July, 1862, c. 204, s. 1, v. 12, p. 601, art. 2.) 
 
 As to deck courts and their power to punish, 1 As to limitations of punishment which may be 
 see note to article 24, A. G. N. adjudged bv courts-martial, see note to 
 
 1 article 63, A.G.N. 
 
 Art. 4. [Offenses punishable by death.] The punishment of death, or 
 such other punisliment as a court-martial may adjudge, may be inflicted on 
 any person in the naval service — (17 July, 1862, c. 204, s. 1, v. 12, p. 601, art. 3.) 
 
 First. [Mutiny.] Who makes, or attempts to make, or unites with any 
 mutiny or mutinous assembly, or, being witness to or present at any mutiny, 
 does not do his utmost to suppress it; or, knowing of any mutinous assembly 
 or of any intended mutiny, does not immediately communicate his knowledge 
 to his superior or commanding officer; 
 
 Second. [Disobedience of orders.] Or disobeys the lawful orders of his 
 superior officer; 
 
 Third. [Striking superior officer.] Or strikes or assaults, or attempts 
 or threatens to strike or assault, his superior officer while in the execution of 
 the duties of his office ; 
 
 Fourth. [Intercourse with an enemy.] Or gives any intelligence to, or 
 holds or entertains any intercourse with, an enemy or rebel, without leave 
 from the President, the Secretary of the Navy, the commander-in-chief of the 
 fleet, the commander of the squadron, or, in case of a vessel acting singly, 
 from his commanding officer; 
 
 Fifth. [Messages from an enemy.] Or receives any message or letter 
 from an enemy or rebel, or, being aware of the unlawful reception of such 
 message or letter, fails to take the earliest opportunity to inform his superior 
 or commanding officer thereof; 
 
 Sixth. [Desertion in time of war.] Or, in time of war, deserts or entices 
 others to desert; [See §§ 1996, 1998.]— (23 April, 1800, c. 33, art. 17, v. 2, p. 47.) 
 
 Seventh. [Deserting trust.] Or, in time of war, deserts or betrays his 
 trust, or entices or aids others to desert or betray their trust; 
 
 Eighth. [Sleeping on watch.] Or sleeps upon his watch; 
 
 Ninth. [Leaving station.] Or leaves his station before being regularly 
 relieved ; 
 
 979 
 
Sec. 1624, Art. 4. Pt. 2. REVISED STATUTES. The Navy. 
 
 Tenth. [Willful stranding or injury of vessel.] Or intentionally or 
 willfully suffers any vessel of the Navy to be stranded, or run upon rocks or 
 shoals or improperly hazarded; or maliciously or willfully injures any vessel of the 
 Navy, or any part of her tackle, armament, or equipment, whereby the safety 
 of the vessel is hazarded or the lives of the crew exposed to danger; 
 
 Eleventh. [Unlawful destruction of public property.] Or unlaw- 
 fully sets on fire, or otherwise unlawfully destroys, any public property not at 
 the time in possession of an enemy, pirate, or rebel; 
 
 Twelfth. [Striking flag or treacherously yielding.] Or strikes or 
 attempts to strike the flag to an enemy or rebel, without proper authority, or, 
 when engaged in battle, treacherously yields or pusillanimously cries for quarters ; 
 
 TinRTEENTH. [CowARDicE IN BATTLE.] Or, in time of battle, displays 
 cowardice, negligence, or disaffection, or withdraws from or keeps out of danger 
 to which he should expose himself; 
 
 Fourteenth. [Deserting duty in battle.] Or, in time of battle, de- 
 serts his duty or station, or entices others to do so; 
 
 Fifteenth. [Neglecting orders to prepare for battle.] Or does 
 not properly observe the orders of his commanding officer, and use his utmost 
 exertions to carry them into execution, when ordered to prepare for or join in, 
 or when actually engaged in, battle, or while in sight of an enemy; 
 
 Sixteenth. [Neglecting to clear for action.] Or, being in command 
 of a fleet, squadron, or vessel acting singly, neglects, when an engagement is 
 probable, or when an armed vessel of an enemy or rebel is in sight, to prepare 
 and clear his ship or ships for action; 
 
 Seventeenth. [Neglecting to join on signal for battle.] Or does 
 not, upon signal for battle, use his utmost exertions to join in battle; 
 
 Eighteenth. [Failing to encourage the men to fight.] Or fails to 
 encourage, in his own person, his inferior officers and men to fight courageously; 
 
 Nineteenth. [Failing to seek encounter.] Or does not do his utmost 
 to overtake and capture or destroy any vessel which it is his duty to encounter; 
 
 Twentieth. [Failing to afford relief in battle.] Or does not afford 
 all practicable relief and assistance to vessels belonging to the United States 
 or their allies when engaged in battle. 
 
 "Such other pimishment" construed. — 
 See note to article 63, A. G. N., under "Cruel 
 and unusual punishments." 
 
 Imprisonment in penitentiaay. — See arti- 
 cle 7, A. G. N. 
 
 "Superior oflB.cer" construed. — The arti- 
 cle of war which prescribes the punishment of 
 an officer or soldier who offers violence to or 
 disobeys the command of his superior officer 
 does not apply as between an undergraduate 
 cadet at the Military Academy and a fellow 
 undergraduate, whatever may be their relative 
 rank in the academic organization; the rank of 
 cadets within the academy, as commissioned 
 officers, noncommissioned officers, and privates, 
 is not rank in the Army. (7 Op. Atty. Gen., 
 332, 333.) 
 
 See note to section 1623, Revised Statutes, 
 as to construction of "senior in rank"; and see 
 note to article 8, A. G. N. 
 
 Mutiny.— See note to article 6, A. G. N., 
 as to officers charged with murder for execu- 
 tion of seaman for mutinous conduct. 
 
 Disobedience of orders. ^ — Question whether 
 disobedience of orders is such conduct as may 
 be punished under the provision of the law 
 relating to "scandalous conduct tending to the 
 destruction of good morals," discussed but not 
 decided. (Wilkesv. Dinsman, 7 How., 89, 127; 
 see note to art. 8, A. G. N.) 
 
 It sometimes happens that a prompt and 
 unhesitating obedience to orders is indispens- 
 able to the complete attainment of the object. 
 \Vhile subordinate officers or soldiers are pausing 
 to consider whether they ought to obey or are 
 scrupulously weighing the evidence of the facts 
 upon which the commander in chief exercises 
 the right to demand their services, the hostile 
 enterprise may be accomplished without the 
 means of resistance. (Wilkes v. Dinsman, 
 7 How., 89, 130.) 
 
 980 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 5. 
 
 A prompt and unhesitating obedience to 
 orders is indispensable to the complete attain- 
 ment of the oliject. The service is a military 
 service, and the command of a military nature; 
 and in such cases every delay and every 
 obstacle to an efficient and immediate compli- 
 ance necessarilv tends to jeopardize the public 
 interests. (Martin v. Mott, 12 Wheat., 19, 30.) 
 
 If a superior officer has a right to contest the 
 orders of the President upon his own doubts 
 as to the exigency ha\-ing arisen, it must be 
 equally the right of every inferior officer and 
 soldier; and any act done by any person in 
 furtherance of such orders would subject him 
 to responsibility in a ci\'il suit in which his 
 defense must finally rest upon his ability to 
 establish the facts by competent evidence. 
 Such a course would be subversive of all 
 discipline and expose the best disposed officers 
 to the chances of ruinous litigation. (Martin 
 V. Mott, 12 WTieat., 19, 30.) 
 
 The belief of a subordinate as to his rights 
 does not furnish any justification for his disobe- 
 dience of orders. For there would be an end 
 of all discipline if the seamen and marines on 
 board a ship of war on a distant service were 
 permitted to act upon their own opinion of their 
 rights, and to throw off the authority of the 
 commander whenever they supposed it to be 
 unlawfully exercised. (Dinsman v. Wilkes, 12 
 How., 390, 403.) 
 
 For other cases, as to duty of obeying orders 
 and whether illegal order is a defense to a civil 
 suit against the subordinate obeying same, 
 see note to Constitution, Article I, section 8, 
 clause 13, under "Responsibility of military 
 authorities for illegal acts." 
 
 Assault and battery. — An "assault" is an 
 attempt which, if_ consummated, would result 
 in a battery. It is essential to a battery that 
 some force shall be actually applied, not merely 
 threatened or attempted to be applied, to the 
 person of another, or to some article so closely 
 connected with his person as to be regarded as 
 a part of it. And the conduct of a soldier in 
 shooting at another, without hitting him, does 
 not constitute an assault and battery. (An- 
 derson V. Crawford, 265 Fed. Rep., 504.) 
 
 While a battery always includes an assault, 
 assaults often fall short of a battery. (An- 
 derson V. Crawford, 265 Fed. Rep., 504.) 
 
 The definition of an assault is an offer or at- 
 tempt by force to do a corporal injury to another. 
 
 as if one person strikes at another with his hands 
 or with a stick and misses him ; for if the other 
 be stricken, it is a battery which is an offense 
 of a higher grade. (Anderson v. Crawford, 265 
 Fed. Rep., 504.) 
 
 See note to article 43, A. G. N., as to charges 
 and specifications. 
 
 Desertion in time of war. — See section 
 1998, Revised Statutes, as amended by act of 
 August 22, 1912 (37 Stat., 356), providing for 
 disabilities to be suffered by persons who 
 desert in time of war, including the forfeiture 
 of the rights of citizenship and incapacity to 
 hold office xmder the United States. See also 
 article 19, A. G. N., as amended by said act of 
 August 22, 1912, as to reenlistment of war-time 
 deserters. 
 
 The provisions of sections 1996 and 1998, 
 Re\dsed Statutes, which subject persons de- 
 serting the military service of the United States 
 to additional penalties, can only take effect 
 upon conviction by a court-martial. (Kurtz 
 V. Moffitt, 115 U. S., 487, 501. As to effect of 
 pardon, see note to Constitution, Art. II, 
 sec. 2, clause 1, under "III. Power to pardon 
 offenses against United States," subheading, 
 "The effect of the pardon is prospective.") 
 
 See note to article 8, A. G. N.. as to definition 
 of desertion, etc. See articles 61 and 62, A. G. 
 N. and notes thereto, as to statute of limita- 
 tions. 
 
 "Time of war" construed. — Whether a 
 condition of war exists within the articles of 
 war relating to the trial of certain offenses com- 
 mitted by soldiers is within the exclusive 
 jurisdiction of the political department of the 
 Government. (Hamilton v. McClaughry, 136 
 Fed. Rep., 445.) 
 
 The ' ' Boxer uprising " in China in June, 1900, 
 during which the United States assembled an 
 army of 15,000 men, over 5,000 of whom were 
 ordered to and did proceed to China to assist 
 the forces of the allied nations in quelling the 
 uprising and to release the accredited repre- 
 sentatives of the United States then imprisoned 
 \nthin the city of Pekin, during which the 
 pay of officers and men in the United States 
 military service was increased to a war basis, 
 constituted a "time of war," within the articles 
 of war providing for the trial of certain offenses 
 by military coiu-t-martial. (Hamilton v. Mc- 
 Claughry, 136 Fed. Rep., 445.) 
 
 Art. 5. [Spies, etc.] All persons who, in time of war, or of rebellion against 
 the supreme authority of the United States, come or are found in the capacity 
 of spies, or who bring or deliver any seducing letter or message from an enemy 
 or rebel, or endeavor to corrupt any person in the Navy to betray his trust, 
 shall suffer death, or such other punishment as a court-martial may adjudge. — 
 (17 July, 1862, c. 204, s. 1, v. 12, p. 602, art. 4. 13 Feb., 1862, c. 25, s. 4, v. 
 12, p. 340. 3 Mar., 1863, c. 75, s. 38, v. 12, p. 737.) 
 
 - "Time of war" construed. — See note to 
 article 4, A. G. N. 
 
 "Such, other punishment" construed. — 
 See note to article 63, A. G. N., under " Cruel 
 and unusual punishments." 
 
 Imprisonment in penitentiary. — See arti- 
 cle 7, A. G. N. 
 
 Punishment of persons not belonging 
 to Navy. — In time of war or rebellion the 
 military jurisdiction is extended over "aU 
 
 981 
 
Sec. 1624, Art. 6. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 persons'' found lurkin<T or acting; as Rjues. 
 Persons who do not belong to tlie military 
 eslal)lishniont, who are not a part of the Army, 
 are not subject to military jurisdiction except 
 in the cases specifically jirovided for by law, as, 
 for example, where they come within the 
 description of this statute. (16 Op. Atty. 
 Gen., 13, 15, referring to sec. 1343, R. S., 
 relating to the Army.) 
 
 Certain offenses committed by persons not 
 belonging to the Army, and which affect the 
 safety, the government, and discipline of the 
 Army, are by statute punishable by court- 
 martial, as, for example, section 1343, Revised 
 Statutes, by which spies are made amenable 
 to militarv justice. (16 Op. Atty. Gen., 292, 
 294.) 
 
 The articles of war denounce penalties only 
 against officers and soldiers, vdth. the exception 
 of a few provisions respecting sutlers, retainers 
 to the camp, and persons serving with the 
 armies in the field, and one provision respecting 
 spies. (Ex parte Henderson, 11 Fed. Cas. No. 
 6,349.) 
 
 Endeavor to corrupt person in Marine 
 Corps. — The accused, a corporal of marines, 
 was charged "with, endeavoring to corrupt two 
 privates belonging to a marine guard on board 
 a steamer convening state prisoners to Fort 
 Lafayette, by offering them a large pecuniary 
 reward if they would assist him in effecting the 
 escape of certain of the prisoners. The prisoner 
 was convicted of one of the gravest offenses 
 enumerated in the calendar of naval crimes. 
 (10 Op. Atty. Gen., 158.) 
 
 Spy outside field of operations. — A person 
 apprehended upon United States territory not 
 under martial law, who had not entered any 
 camp, fortification, or other military premises 
 of the United States, and who had not come 
 through the fighting lines or field of military 
 operations, can not be tried as a spy by an 
 Army court-martial, and to such a case section 
 1343, Revised Statutes, and article 82 of the 
 Articles of War, can not be applied. (31 Op. 
 Atty. Gen., 356.) 
 
 German spy amenable to naval court- 
 martial. — Under article 5, A. G. N., the 
 jurisdiction of a naval court-martial to punish 
 a German spy who entered the United States 
 under a false name and on a forged passport, 
 and who was arrested in New York City, can 
 not be denied on the ground that the port of 
 New York was outside the field of active 
 operations and outside the theater of war. 
 (U. S. V. MacDonald, 265 Fed. Rep., 754.) 
 
 Military authorities should have power to try 
 spies wherever found ; otherwise they may not 
 be subject to trial for that offense. (U. S. v. 
 MacDonald, 265 Fed. Rep., 754.) 
 
 In the recent World War the field of opera- 
 tions which existed after the United States 
 entered the war, and especially in regard to 
 naval operations, brought the port of New 
 York within the field of active operations. 
 With the progress made in obtaining ways and 
 means for devastation and destruction, the 
 territory of the United States was certainly 
 v\ithin the field of active operations. Great 
 numbers of troops were being sent abroad, 
 and in large numbers sailing from the port of 
 New York; vessels loaded with ammunition 
 and suppUes for the Army were daily leaving 
 this port; German submarines v\'ere landing, 
 unheralded and unaware, in our ports before 
 the United States entered the war; ships were 
 being destroyed ^\ithin easy distance of the 
 Atlantic coast; there was the constant threat of 
 airships above the harbor and city of New 
 York on missions of destruction. A spy of the 
 enemy might v,'ell have aided these hostile 
 operations. It is not necessary that it be said 
 of the accused that he entered forts or armed 
 encampments for the purposes of his mission; 
 it is sufficient if he was here on the mission of 
 a spy and communicated his intelligence or 
 information to the enemv\ (U. S. r. Mac- 
 Donald, 265 Fed. Rep., 754.) 
 
 Under international law, spyingis not a crime, 
 and the offense against the laws of war consists 
 of being found during the war in the capacity 
 of a spy. The guaranties of the Constitution 
 apply only where a crime is charged, and a 
 "crime' ' means an offense against the Govern- 
 ment as understood when the Constitution was 
 adopted, which does not include the offense 
 of being a spy. (U. S. v. MacDonald, 265 Fed. 
 Rep., 754.) 
 
 This article is applicable to all persons acting 
 as spies, whether citizens of the United States 
 or not. (U. S. v. MacDonald, 265 Fed. Rep., 
 754.) 
 
 Spies who were present m our midst were 
 dangerous agencies of war, and it is proper that 
 the naval authorities deal with them as the 
 act of Congress provides that courts-martial 
 might. Whatever may be the right of an alien 
 to protection of the law in this country, he 
 surrenders his right to constitutional protection 
 when he joins the armed forces of an alien 
 enemv, assuming duties as a spv^ (U. S. v. 
 MacDonald, 265 Fed. Rep., 754.) " 
 
 Art. 6. [Murder.] If any person belonging to any public vessel of the 
 United States commits the crime of murder without the territorial jurisdiction 
 thereof, he may be tried by court-martial and punished with death. — (17 July, 
 1862, c. 204, s. 1, V. 12, p. 602, art. 5.) 
 
 murder on the high seas, it appeared in their 
 defense that they arrested a member of the 
 crev on a charge of mutinous conspiracy with 
 others of the crew to murder the officers and 
 piratically possess themselves of the vessel; 
 that after detaining the prisoner for sev^eral 
 days they ordered him to be put to death under 
 apprehension of his rescue by his confederates 
 and in the belief that there was no other means 
 
 Jurisdiction of manslaughter. — See note 
 to article 22, A. G. N. 
 
 Under a charge of murder, courts-martial as 
 well as criminal courts of law may convict the 
 accused of manslaughter. (U. S. v. Mackenzie, 
 30 Fed. Cas. No. 18313.) 
 
 Execution of subordinate without trial — 
 Upon alle;:!;ation that officers of the U. S. Lria: 
 Soiners in 1842 had committed the crime of 
 
 982 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 7 
 
 of sa\'ing the ship and the lives of the officers; 
 hdd that the setting up of an accusation of 
 this character against the deceased, under 
 \vhate^ er solemnity of asserveration, most cer- 
 tainly can not be received as a justification for 
 emplojang the last extreme of power by the 
 accused; that the watchful solicitude of the 
 law over life and personal security can not be 
 so quieted or satisfied; that the necessity of 
 the case must be made apparent beyond any 
 fair ground to doubt before any functionary, 
 under whatever plenitude of power, can on 
 his own mandate take the life of a citizen. 
 Nevertheless, held further that a civil court 
 of the United States will not grant a warrant to 
 arrest the aforesaid officers pending completion 
 of proceedings before a court of inquiry, which 
 had been ordered by the Secretary of the 
 Navy, of which court the United States attor- 
 ney for the district was judge advocate, even 
 though the offense were one ^vithin the juris- 
 diction of the civil courts to punish. (U. S. v. 
 Mackenzie, 26 Fed. Cas. No. 15690; see also 
 U. S. V. Mackenzie, 30 Fed. Cas. No. 18313; 
 and see note to Constitution, Art. I, sec. 8, 
 cl. 14, under ''V. Jurisdiction of civil courts. ") 
 
 Jurisdiction of civil courts. — The civil 
 courts of the United States are without juiis- 
 diction to try the commanding officer of a naAal 
 vessel on a charge of murder or manslaughter, 
 gromng out of his conduct in executing certain 
 subordinates on board the U. S. Brig Somers 
 in 1842, the jurisdiction of a naval court-mar- 
 tial in such case being exclusive under the 
 existing legislation of Congress. (U. S. v. 
 Mackenzie, 30 Fed. Cas. No. 18313; see note 
 to Constitution, Art. I, sec. 8, cl. 14, under 
 "V. Jurisdiction of cixdl courts. ") 
 
 In the case of Commander Mackenzie, the 
 charge of Mr. Justice Betts is legal authority 
 to the point that a court-martial ha\'ing law- 
 fully entered upon the cognizance of a case, 
 the civil magistrate can not lawfully interrupt 
 
 or disturb its jurisdiction and right of complete 
 and final action. (6 Op. Atty. Gen., 426, 
 427.) 
 
 Concurrent jurisdiction of civil and naval 
 courts. — Article 6, A. G. N., does not vest 
 exclusive jurisdiction in a naval coiut-martial 
 of the crime of mui'der. The general rule is 
 that jurisdiction of civil courts is concurrent 
 as to offenses triable before courts-martial. 
 Accordingly, held that homicide committed on 
 a naval hospital ship at Olongapo, P. I., by a 
 member of the civilian crew may be tried by a 
 Federal court in the first judicial district of 
 the United States to which the offender is 
 brought, (^om-ts of the Philippine Islands 
 did not have jurisdiction in this case, as the 
 offense, if any, was against the United States 
 and the Philippine courts only have jurisdic- 
 tion of offenses against the Philippine Govern- 
 ment. It does not appear upon what grounds 
 the assumption rests that a nav'al com't-martial 
 has not jurisdiction under article 8, A. G. N. 
 But since there is reasonable doubt as to the 
 applicability of this article to the offense, such 
 doubt should be resolved against a trial before 
 a court-martial which is a coiu^t of limited 
 jurisdiction. (28 Op. Atty. Gen., 24. Note. — 
 According to regulations then in force, the 
 master and crew of naval hospital ships and 
 naval auxiliaries were civilians, and in practice 
 were held not subject to the Articles for the 
 Government of the Navy, or to trial by court- 
 martial.) 
 
 Naval court-martial without jurisdic- 
 tion. — Naval courts-martial may not try and 
 punish murder which they suppose to have 
 been committed on board a frigate at Norfolk. 
 Jm"isdiction in such cases belongs to the civil 
 tribunals. (5 Op. Atty. Gen., 698; compare 
 note to Constitution, Art. I, sec. 8, cl. 14, under 
 "V. Jurisdiction of civil courts," as to juris- 
 diction of civil authorities of the crime of 
 murder committed on board a naval vessel.) 
 
 Art. 7. [Imprisonment in penitentiary.] A naval court-martial may 
 adjudge the punishment of imprisonment for life, or for a stated term, at hard 
 labor, in any case where it is authorized to adjudge the punishment of death; 
 and such sentences of imprisonment and hard labor may be carried into exe- 
 cution in any prison or penitentiary under the control of the United States, 
 or which the United States may be allowed, by the legislature of any State, to 
 use; and persons so imprisoned in the prison or penitentiary of any State or 
 Territory shall be subject, in all respects, to the same discipline and treatment 
 as convicts sentenced by the courts of the State or Territory in which the same 
 maybesituated.— (17 July, 1862, c. 204, s. l,v. 12, p. 602, art. 6.) 
 
 Imprisonment in cases not puxdshable 
 by death. — A naval court-martial, upon con- 
 viction of an offense not capital, may sentence 
 to imprisonment at lard labor. (12 Op. Atty. 
 Gen., 510.) 
 
 The right to impose imprisonment at hard 
 labor is not limited to cases of conviction of 
 offenses which may be punished capitally, 
 notwithstanding that the construction given 
 to this law by the Navy Department from the 
 time of its enactment has been that punishment 
 by imprisonment at hard labor in a penitentiar\- 
 
 under sentence of a naval court-martial could 
 be inflicted only in the case expressed in the 
 law; that is, a case where a naval court-martial 
 is authorized to adjudge the punishment of 
 death. (12 Op. Atty. Gen., 510.) 
 
 Article 7, section 1624, Revised Statutes, is 
 the only statute now in force authorizing 
 sentences to hard labor in a public penitentiary 
 by a naval court-martial; therefore, such 
 punishment can not be inflicted except in the 
 cases punishable by death, enumerated in the 
 2) clauses of article 4. The expression of one 
 
 983 
 
Sec. 1624, Art. 8. 
 
 Ft. 2. REVISED STATUTES. 
 
 The Navy. 
 
 thing is the exclusion oi another. (Ex parte 
 Van Vranken, 47 Fed. Rep., 888; reversed in 
 163 U. S., &J4, without opinion.) 
 
 Where a seaman was charged ^^'ith deserting, 
 and the court-martial found him guilty of 
 attemi)ting to desert, the court had jurisdiction 
 over the subject matter, and an action of 
 trespass for false imprisonment will not lie 
 against the ministerial oflicer who executes 
 tiie sentence of imprisonment in the peniten- 
 tiary of the District of Columbia, at hard labor, 
 for attempting to desert. (Dynes v. Hoover, 
 20 How., 65.) 
 
 Courts-martial, in cases within their la^vful 
 jurisdiction, may condemn persons to impri?on- 
 ment at hard labor in the penitentiary of the 
 District of Columbia in punishment of crime. 
 This is too well settled to be now open to ques- 
 tion. (10 Op. Atty. Gen., 248.) 
 
 Miscellaneous. — A naval court-martial may 
 lawfully sentence a seaman to confinement at 
 hard labor in the penitentiary in the District 
 of Columbia for striking, disobeying, and treat- 
 ing with contempt his superior officer. (9 Op. 
 Atty. Gen., 80.) _ _ 
 
 For an offense against article 12, act April 23, 
 1800 (2 Stat., 45; now art. 5, sec. 1624, R. S.), 
 a marine general court-martial may legally 
 sentence the prisoner to imprisonment in the 
 
 penitentiary of the District of Coliunbia at 
 hard labor for a term of years, that punishment 
 not being against the usages of the service. 
 (10 Op. Atty. Gen., 158.) 
 
 For other cases, see note toarticle 14, A. G. N. 
 
 Transportation to penitentiary — A pris- 
 oner sentenced by an Army court-martial to 
 confinement in a penitentiary of the United 
 States should not be turned over to a marshal, 
 but should be conducted to the prison by the 
 proper officers of the War Department. (21 
 Op. Atty. Gen., 204. But see Dynes v. Hoover, 
 20 How., 65, 78, where it appears that prisoner 
 was turned over to the marshal for the District 
 of (^olumbia, who received him and committed 
 him to the keeper of the penitentiary, and it 
 was held that the marshal was authorized to 
 receive the prisoner and to turn him over to 
 the keeper.) 
 
 A statute providing for the transportation of 
 all United States prisoners sentenced to im- 
 prisonment in a United States penitentiary held 
 applicable only to prisoners convicted by the 
 civil courts of the United States. (21 Op. 
 Atty. Gen., 204.) 
 
 Transportation, clothing', and gratuity 
 on discharge. — See acts of February 16, 1909, 
 section 13 (35 Stat., 622), and March 3, 1909 
 (35 Stat., 756). 
 
 Art. 8. [Offenses punishable at discretion of court-martial.] Such punish- 
 ment as a court-martial may adjudge may be inflicted on any person in the 
 Navy— (17 July, 1862, c. 204, s. 1, v. 12, p. 602, art. 7.) 
 
 First. [Profanity, falsehood, &c.] Who is guilty of profane swearing, 
 falsehood, drunkenness, gambling, fraud, theft, or an}^ other scandalous con- 
 duct tending to the destruction of good morals; 
 
 Second. [Cruelty.] Or is guilty of cruelty toward, or oppression or mal- 
 treatment of, any person subject to liis orders; 
 
 Third. [Quarreling.] Or quarrels with, strilies, or assaults, or uses pro- 
 voking or reproachful words, gestures, or menaces toward, any person in the 
 Navy; 
 
 Fourth. [Fomenting quarrels.] Or endeavors to foment quarrels be- 
 tween other persons in the Navy; 
 
 Fifth. [Duels.] Or sends or accepts a challenge to fight a duel or acts as 
 a second in a duel; 
 
 Sixth. [Contempt of superior officer.] Or treats his superior oflicer 
 with contempt, or is disrespectful to him in language or deportment, while in the 
 execution of his office; 
 
 Seventh. [Combinations against commanding officer.] Or joins in or 
 abets any combination to weaken the lawful authority of, or lessen the respect 
 due to, his commanding officer; 
 
 Eighth. [Mutinous words.] Or utters any seditious or mutinous 
 words;— (23 April, 1800, c. 33, art. 13, v. 2, p. 47.)" 
 
 Ninth. [Neglect of orders.] Or is negligent or careless in obeying 
 orders, or culpably inefficient in the performance of duty; 
 
 Tenth. [Preventing destruction of public property.] Or does not 
 use his best exertions to prevent the unlawful destruction of public property 
 by others;— (23 April, 1800, c. 33, art. 25, v. 2, p. 48.) 
 
 984 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 8- 
 
 Eleventh. [Negligent stranding.] Or, through inattention or negli- 
 gence, suffers any vessel of the Navy to be stranded, or run upon a rock or 
 shoal, or hazarded; 
 
 Twelfth. [Negligence in convoy service.] Or, when attached to an}^ 
 vessel appointed as convoy to any merchant or other vessels, fails diligently 
 to perform his duty, or demands or exacts any compensation for his services, 
 or maltreats the officers or crews of such merchant or other vessels; 
 
 Thcrteenth. [Receiving articles for freight.] Or takes, receives, or 
 permits to be received, on board tiie vessel to which he is attached, any goods 
 or merchandise, for freight, sale, or traffic, except gold, silver, or jewels, for 
 freight or safe-keeping; or demands or receives any compensation for the 
 receipt or transportation of any otlier article than gold, silver, or jewels, with- 
 out authority from the President or Secretary of the Navy; 
 
 Fourteenth. [False muster.] Or knowingly makes or signs, or aids, 
 abets, directs, or procures the making or signing of, any false muster; 
 
 Fifteenth. [Waste of public property, &c.] Or wastes any ammuni- 
 tion, provisions, or other public property, or, having power to prevent it, 
 knowingly permits such waste; 
 
 Sixteenth. [Plundering on shore.] Or, when on shore, plunders, 
 abuses, or maltreats any inhabitant, or injures his property in any way; 
 
 Seventeenth. [Refusing to apprehend offenders.] Or refuses, or 
 fails to use, his utmost exertions to detect, apprehend, and bring to punishment 
 all offenders, or to aid all persons appointed for that purpose; 
 
 Eighteenth. [Refusing to receive prisoners.] Or, when rated or act- 
 ing as master-at-arms, refuses to receive such prisoners as may be committed 
 to his charge, or, having received them, suffers them to escape, or dismisses 
 them without orders from the proper authority; 
 
 Nineteenth. [Absence from dlty without leave.] Or is absent from 
 his station or duty without leave, or after his leave has expired; 
 
 Twentieth. [Violating general orders or regulations.] Or violates 
 or refuses obedience to any lawful general order or regulation issued by the 
 Secretary of the Navy; 
 
 Twenty-first. [Desertion in time of peace.] Or, in time of peace, 
 deserts or attempts to desert, or aids and entices others to desert; [See 
 §§1996-1998.] 
 
 Twenty-second. [Harboring deserters.] Or receives or entertains 
 any deserter from any other vessel of the Navy, knowing him to be such, and 
 does not, with all convenient speed, give notice of such deserter to the com- 
 mander of the vessel to which he belongs, or to the commander-in-chief, or to 
 the commander of the squadron. — (23 April, 1800, c. 33, art. 17, v. 2, p. 47.) 
 
 Discretionary punislunent. — For offenses 
 defined by article 8, A. (i. N., a court-martial 
 may impose the sentence of forfeiture of pay, 
 both due and to become due, though fines or 
 forfeitures are not in terms authorized as a pun- 
 ishment by that article. (Williams v. U. S., 
 24 Ct. Cls., 306.) 
 
 The fact that article 14, A. G. N., expressly 
 authorizes fines for the punishment of the of- 
 fenses therein entunerated, does not operate to 
 
 exclude forfeiture of pay for offenses enum- 
 erated in article 8. (Williams v. U. S., 24 Ct. 
 Cls., 306.) 
 
 See note to articles 7. A. G. N., as to impris- 
 onment in penitentiary; note to article 48, A. 
 G. N., as to forfeiture of pay; and note to article 
 63, as to limitations of punishment in time of 
 peace. 
 
 Drunkenness. — \Miile drunkenness is not 
 ordinarily considered as criminal, the intoxi- 
 
 985 
 
Sec. 1624, Art. 8. 
 
 Ft. 2. REVISED STATUTES. 
 
 The Navy. 
 
 cation of a naval officer, while on duty, is a 
 gross breach of discipline and liable to be at- 
 tended by very serious consequences. (Bishop 
 V. V. S., 197 U. S., 334, 3-13.) 
 
 An officer of the Army was charged ^^ith 
 "habitual drunkenness"; found guilty of "con- 
 duct prejudicial to good order and military dis- 
 cipline in being drunk on various occasions." 
 Held, that when it appears that an offense pf 
 which an officer was conx-icted is embraced in 
 the one with which he was charged, it is a lesser 
 o flense of the same character and the convic- 
 tion is authorized bv the articles of war. 
 (Rankhead v. U. 8., 20 Ct. Cls., 405.) 
 
 Various acts of drunkenness prejudicial to 
 good order and military discipline may be 
 found by a court-martial as a "partial verdict" 
 ^nthin the decision of the Supreme Court in 
 Dynes v. Hoover (20 How., 65), though the 
 charge be habitual drunkenness. (Bankhead 
 V. U. S., 20 Ct. Cls., 405.) 
 
 Falsehood. — :See note to article 22, A. G. 
 N., as to conduct unbecoming an officer and a 
 gentleman. 
 
 Fraud. — There are two broad classes of 
 fraud under the Articles for the Government of 
 the Navy, viz, fraud against the United States 
 and fraud not against the United States. The 
 first class is punishable under article 14, A. G. 
 N., and the other under article 8, A. G. N. 
 (Naval Dig., 1916, p. 245; C. M. 0. 4, 1916.) 
 
 To constitute fraud against a private person, 
 in violation of article 8, A. G. N., the specifi- 
 cation must show that such person had actually 
 been defrauded by and parted with something 
 of value in consequence of the false representa- 
 tions of the accused. If the accused had not 
 actually defrauded the person concerned, the 
 specification might be laid under a charge of 
 "attempt to commit fraud." (Nav. Dig., 1916, 
 p. 245; C. M. O. 4, 1916.) 
 
 Scandalous conduct tending to the de- 
 struction of good morals. — See note to ar- 
 ticle 22, A. G. N., as to charge of scandalous 
 conduct tending to the destruction of good 
 morals, in violation of that article. 
 
 By the Articles for the Government of the 
 Navy of April 23, 1800 (2 Stat., 45), it was pro- 
 vided in article 3 that officers or enlisted men 
 guilty of "oppression, cruelty, fraud, profane 
 swearing, drunkenness, or any other scandalous 
 conduct tending to the destruction of good 
 morals" should be punished as therein pre- 
 scribed, viz, in the case of an enlisted man, 
 that he be put in irons or flogged, at the discre- 
 tion of the captain, not exceeding 12 lashes; or 
 if the offense required severer punishment, 
 that he be tried by a court-martial and suffer 
 such punishment as said court should inflict. 
 The question whether disobedience of orders 
 was such conduct as covered by said article 3, 
 discussed but not decided, as, if not punishable 
 under said article, it was punishable under 
 article 30, limiting the punishments to be in- 
 flicted by commanding oflicers of their own 
 authority (see art. 24, sec. 1624, R. S.); and if 
 not punishable under either of said articles, it 
 was punishable under article 32, which pro- 
 vided that "all crimes committed by persons 
 belonging to the Navy, which are not specified 
 in the foregoing articles, shall be punished ac- 
 cording to the laws and customs in such cases 
 
 at sea." (Wilkes v. Dinsman, 7 How., 89, 
 127. Note. — Disobedience of orders was spe- 
 cifically provided for, to be punished by court- 
 martial, by article 14 of the said act of 1800.) 
 
 A charge against an enlisted man of the Navy 
 for scandalous conduct tending to the destruc- 
 tion of good morals, in that on one occasion he 
 made an affida^■it confessing certain frauds 
 against the Government, while on another 
 occasion he testified under oath, before a duly 
 constituted court of inquiry, and denied the 
 truth of his former statements, was sufiicient 
 under article 8, A. G. N., notvidthstanding that 
 the specification did not aver which of said 
 statements was false, as requii'ed in a charge of 
 perjury, but concluded by averring that" the 
 accused did, "by submitting the said written 
 statement or confession, and by testifying as 
 above shown, make statements inconsistent 
 the one with the other, and one of which must 
 have been, and was, known by him to be false 
 and misleading, and intended to deceive and 
 defeat the ends of justice." (Ex parte Dickey, 
 204 Fed. Rep., 322.) 
 
 Wliere the pleading upon which the accused 
 was tried made a substantial charge of false 
 swearing, although it cUd not set forth the 
 charge with the clearness and definiteness re- 
 quired in a civil court, held that it was suffi- 
 cient; that the pleadings did not attempt to 
 charge the accused with "perjuiy," but al- 
 leged a lesser offense than "perjury," viz, 
 "scandalous conduct tending to the clestruc- 
 tion of good morals" ; and that the specification 
 was not objectionable in that it did not allege 
 which statement was true or which was false. 
 (Ex parte Dickey, 204 Fed. Rep., 322, 324; 
 see also note to art. 43, A. G. N.) 
 
 The general charge of scandalous conduct 
 tending to the destruction of good morals is 
 well knowTi in courts-martial, and authorized 
 by article 8 of the Articles for the Government 
 of the Navy. (Ex parte Dickey, 204 Fed. 
 Rep., 322, 324.) 
 
 Assavilting another person in the Navy. — 
 See note to article 4, A. G. N., as to definition 
 of assault; and see note to article 22, A. G. N., 
 under "Conduct to the prejudice of good order 
 and discipline." 
 
 Contempt of superior o£&cer. — See note 
 to article 4, A. G. N., as to construction of 
 "superior officer." 
 
 The term "superior officer" includes an 
 officer of the line, senior in rank to another line 
 officer of the same grade, although not asso- 
 ciated on duty together with the right of com- 
 mand and requirement of obedience. The 
 fact that the two officers may be "so nearly 
 of the same seniority " is necessarily immaterial. 
 (C. M. O. 5, 1917. In this case the officer was 
 charged with conduct unbecoming an officer 
 and a gentleman in writing and publishing a 
 letter containing "abusive, disrespectful, and 
 defamatory " language of and about a superior 
 officer, in violation of article 22, A. G. N., and 
 not with a violation of article 8, A. G. N.) 
 
 Receiving articles for freight, etc. — 
 The wide cliscretion possessed by the com- 
 manding officer oi a naval vessel concerning 
 the receipt on board, for the protection of 
 private rights, of gold, siher, or jewels, which 
 it was the ob\'ious purpose of this article 
 
 986 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 8. 
 
 (par. 13 ) not to modify, since the power as to 
 such articles was excepted from the additional 
 limitation which the statute imposed as to 
 other articles, affords no ground for the implica- 
 tion that contract obligations would automati- 
 cally arise as against the United States from the 
 mere exercise by the commanding officer of 
 his discretion. (Cartas v. U. S., 250 U. S., 545, 
 affirming 48 Ct. Cls., 161.) 
 
 The Secretary of the Navy can not deprive 
 a commanding officer of his right to compen- 
 sation for transportation of gold. (Phillips 
 V. U. S. Grain Corporation, 279 Fed. Rep., 
 244.) 
 
 Paragiaph 13 of article 8, A. G. N., recog- 
 nizes and limits the preexisting discretion of 
 commanding officers to receive property on 
 board for the protection of private rights; and 
 neither under this statute nor under the Navy 
 Regulations, by which compensation for the 
 permitted service is to be applied to the benefit 
 of officers and men, does such a deposit of gold 
 give rise to any contract with the United 
 States. (Cartas v. U. S., 250 U. S., 545, afiirm- 
 ing48Ct. Cls.,161.) 
 
 The Government does not become a common 
 earner; the Na\'y Regulations negative any 
 such assumption by providing that a captain 
 who is to receive a part of the freight as com- 
 pensation "shall be responsible." (Cartas v. 
 U. S., 48 Ct. Cls., 161.) 
 
 A suit can not be maintained against the 
 United States to recover back the value of 
 gold deposited with the commanding officer of 
 a naval vessel for safe-keeping, and turned 
 over by him to a party who, the captain of the 
 vessel had good reason to believe, was entitled 
 to receive it. The Government is not liable 
 for the miscarriage of a naval officer under 
 this law and the Navy regulation made pursu- 
 ant thereto. (Cartas v. U. S., 48 Ct. Cls., 
 161.) 
 
 Maltreating inhabitants on shore. — It 
 is a matter well known that the march, even of 
 an army not hostile, is often accompanied with 
 acts of ^•iolence and pill-age by straggling 
 parties of soldiers which the most rigid discip- 
 line is hardly able to prevent. The act of 
 March 3, 1863, sectioii 30 (12 Stat., 736), was 
 enacted to protect citizens not in the military 
 8er\ice fi'om the \aolence of soldiers. But 
 said section did not make the jurisdiction of 
 the military' tribunals exclusive of that of the 
 State courts. (Coleman v. Tennessee, 97 U. 
 S., 509, 513.) 
 
 Desertion defined.— Desertion may in 
 general be defined to be the willful abandon- 
 ment of the military service by a soldier or 
 officer duly enlisted "or in the pay of the Gov- 
 ernment, without leave and without an inten- 
 tion to return. (15 Op. Atty. Gen., 152, 158.) 
 
 Under regulations of the Navy Department 
 relating to the paj-ment of rewards, a ' ' deserter " 
 is one who is absent without leave and with a 
 manifest intention not to return, while a 
 " straggler " is one absent without leave Avith 
 the probability that he does not intend to de- 
 sert, but, if his absence continues for 10 days, 
 he becomes a deserter. (Reed v. U. S., 252 
 Fed. Rep., 21.) 
 
 Desertion exclusively a military of- 
 fense.— A court-martial has exclusive juris- 
 diction to try a party duly enlisted in the 
 Army for the military offense of desertion. (In 
 re WTiite, 17 Fed. Rep., 723.) 
 
 From the very year of the Declaration of 
 Independence Congress has dealt "with deser- 
 tion as exclusively a military crime, triable and 
 punishable in time of peace, as well as in time 
 of war, by court-martial only, and not by the 
 ci\il tribunals. (Kmtz v. Moffitt, 115 U. S., 
 487, 501.) 
 
 Attempting to desert. — '^Tiere a seaman 
 was charged with deserting, and the court- 
 martial found him guilty of attempting to de- 
 sert, the comi; had jurismction over the subject 
 matter, and an action of trespass for false im- 
 prisonment would not lie against the ministerial 
 officer who executed the sentence of imprison- 
 ment for attempting to desert. (Dynes v. 
 Hoover, 20 How., 65. Note that "attempting 
 to desert " is specifically pro\ided for by par. 21 
 of art. 8, A. G. N.) 
 
 Desertion by one illegally enlisted. — See 
 notes above, under preamble to section 1624, 
 entitled "Void enlistment," and "Voidable 
 enlistment. ' ' 
 
 Apprehension of deserters. — See note to 
 Constitution, fourth amendment, under "Ar- 
 rest of military offenders." 
 
 A police officer of a State or a private citizen 
 has no authority as such, without any warrant 
 or military order, to arrest and detain a de- 
 serter from the Army of the United States. 
 Section 1014, Re\'ised Statutes, which pro%dde3 
 that "for any crime or offense against the 
 United States" the offender may be arrested 
 and imprisoned, etc., manifestly applies to 
 proceedings before the civil courts only. 
 (Kurtz V. Moffitt, 115 U. S., 487.) 
 
 The arrest of deserters from the Navy by 
 ci\il officers is now pro\ided for by act of Feb- 
 ruary 16, 1909, section 15 (35 Stat., 622). A 
 similar enactment for the Anny was contained 
 in act of June 18, 1898 (.30 Stat., 484 ). 
 
 Under the Criminal Code, section 32 (act 
 Mar. 4, 1909, 35 Stat., 1095), declaring that 
 whoever, with intent to defraud either the 
 United States or any person, shall falsely as- 
 sume or pretend to be an officer acting under 
 the authority of the United States, etc., shall 
 be punished as therein pro\T.ded, held that de- 
 tectives engaged in aiTesting naval deserters 
 and stragglers for the reward prescribed by the 
 regulations must be deemed guilty of the of- 
 fense denounced where they represented to 
 enlisted men arrested as stragglers that they 
 were naval officers. (Reed v. U. S., 252 Fed. 
 Rep., 21.) 
 
 Making good time lost by absence. — The 
 article of war requiring enlisted men to make 
 good time lost by desertion from the Anny ap- 
 plies to a solcher who has been convicted of 
 desertion, or ha\ing deserted is restored to duty 
 without trial, which carries with it an acknowl- 
 edgment on his part of the fact of desertion ; but 
 does not apply to a soldier who, after trial and 
 conviction, has been ordered to duty after the 
 sentence has been expressly disapproved by 
 the proper reviewing officer. (26 Op. Atty. 
 Gen., 239; see note to art. 53, A. G. N., as to 
 
 54641°— 22- 
 
 -63 
 
 987 
 
Sec. 1624, Art. 9. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 effect of disapproval; note to Constitution, Art. 
 I, sec. 9, cl. 3, as to bills of attainder; and notes 
 to sees. 1418 and 1608, R. S., as to detention of 
 men after expiration of enlistment.") 
 
 In the case of a naval deserter, in determin- 
 ing when the term for which he enlisted ends, 
 tlie period of desertion must be deducted from 
 the contract period of enlistment, and the 
 latter accordingly extended until the enlisted 
 man has fully served the term for which he 
 contracted. His contract is to serve for a 
 certain period; tliis contract can not be per- 
 formed by desertion; nor can the status and 
 obligation created thereby be dissolved at the 
 will of the enlisted man. The obligation can 
 only be ended by complete performance. 
 (Op. Atty. Gen., Feb. 27, 1922, file 26251- 
 26615: 8; see notes to arts. 61 and 62, A. G. N.; 
 and to sec. 1418, R. S., under "Detention of 
 enlisted men after expiration of enlistment.") 
 
 Effect of acquittal; desertion. — An ac- 
 quittal by a courl-martial of the charge of de- 
 sertion operates as an acquittal of any lesser 
 offense included within that charge; and as 
 desertion includes the lesser offense of absence 
 \vithout leave, acquittal thereof is also an ac- 
 quittal of. the latter offense. (13 Op. Atty. 
 Gen., 459.) 
 
 Effect of disapproval; desertion. — Where 
 the sentence of a court-martial which found a 
 soldier guilty upon his plea of desertion was dis- 
 approved by the proper reviewing officer, being 
 deemed inadequate, and the soldier ordered at 
 his own expense to join his regiment, held that 
 such disapproval operated as an acquittal of 
 the charge; and as the term of enUstment had 
 expired, there was no warrant for ordering said 
 soldier to further duty; nor can he be again 
 tried for that offense; he may plead the former 
 proceedings as an acquittal in bar of a second 
 trial. (26 Op. Atty. Gen., 239, distinguishing 
 12 Comp. Dec, 328, as to forfeiture of pay by 
 deserter in such a case; see note to art. 53, A. 
 G.N.) 
 
 Enticing or assisting others to desert. — ■ 
 Under the act of Congress of 1855, section 11 ( 10 
 Stat., 628), making the enticing of a seaman 
 who has enlisted to desert, an offense, held that 
 a seaman who has passed the examination at 
 the naval rendezvous merely, and has not been 
 examined and passed on the receiving ship, is 
 not enUsted, and a verdict of acquittal on the 
 charge was proper. (U. S. v. Thompson, 28 
 Fed. Cas. No. 16,491; see also notes to sees. 1418 
 and 1608, R. S., as to when enlistment is 
 complete.) 
 
 Section 5455, Revised Statutes (now sec. 42, 
 Criminal Code, Mar. 4, 1909, 35 Stat., 1097), 
 merely provides for the punishment of civilians 
 not su]:>ject to the articles of war who are acces- 
 sories to the crime of desertion by a soldier, or 
 who do any of the acts specified tending to 
 promote his commission of that crime. It has 
 no application to the crime of the soldier him- 
 self. (Kurtz V. Moftit, 115 U. S-, 487, 502. ) 
 
 An attorney employed by the father of a 
 soldier, 16 years old, who had enlisted ■without 
 his father's consent, to obtain his release on 
 the ground of nonage, and who ad\'ised the 
 soldier, then a deserter, to remain away from 
 the authorities until notified, held not to have 
 "harbored, concealed, or assisted" the de- 
 serter, within section 42 of the Criminal Code 
 (above cited i, which requires, to constitute 
 either of the offenses, some positive physical 
 act, done with knowledge and intent to aid in 
 the wrongful purpose of the deserter. (Firpo 
 V. U. S., 261 Fed. Rep., 850.) 
 
 To "conceal," as used in section 42 of the 
 Criminal Code (above cited), pro\'icUng for 
 punishment of anyone who shall harbor, con- 
 ceal, protect, or "assist any soldier who has 
 deserted from service, means to hide, secrete, 
 or keep out of sight. (Firpo v. U. S., 261 
 Fed. Rep., 850.) 
 
 To "harbor," as tised in section 42 of the 
 Criminal Code (above cited), means to lodge, 
 to care for, after secreting the deseiter. (Firpo 
 i>. U. S., 261 Fed. Rep., 850.) 
 
 Art. 9. [Reduction of officer to enlisted rating-.] Any officer who absents 
 himseK from his command without leave, may, by the sentence of a court- 
 martial, be reduced to the rating of an ordinary seaman. — (16 May, 1864, c. 86, 
 s. 2, V. 13, p. 75.) 
 
 Punishment not authorized for other 
 offenses. — The only pro\'ision of law author- 
 izing the reduction of an officer to an enlisted 
 rating is found in article 9, A. G. N., and it 
 authorizes such punishment only in the case 
 of an officer "who absents himself from his 
 command without leave." Held, that such 
 punishment is limited to the particular offense 
 specified by this article, and can not be ad- 
 judged by a general court-martial for offenses 
 under article 8, A. G. N. (C. M. O. 34-1918, 
 citing precedents; see also C. M. O. 73-1918, 
 31-1919, and 279-1919.) 
 
 President's approval of sentence. — It is 
 deemed ad\isable, as a matter of policy, al- 
 though not specifically required by statute, 
 to submit to the President for confirmation the 
 sentence of a general court-martial reducing 
 a wan-ant officer to the rating of orcUnary sea- 
 man, inasmuch as such sentence deprives the 
 
 accused of his position as a warrant officer in 
 the Navy. (Naval Dig., 1916, p. 517; C. M. 0. 
 11-1916; C. M. 0. 185-1919; see art. 53, A. G. N.) 
 
 Rating of ordinary seaman changed. By 
 act of August 29, 1916 (39 Stat., 575), the rating 
 of ' 'ordinary seaman " was changed to ' 'seaman, 
 second class. ' ' This change has been construed 
 as authorizing the reduction of officers to the 
 rating of seaman, second class, for the offense 
 specified in this article. (See, e. g., C. M. O. 
 185-1919.) 
 
 Reduction of ofl&cer to another ofl3.ce.— 
 The sentence of a court-martial reducing an 
 officer to a lower gi-ade and rank was disap- 
 proved by the President because it could not 
 be carried into effect by the Executive alone, 
 but would require a nomination by the Presi- 
 dent and confirmation by the Senate, and 
 then onlv in the case of an existing ^•acancy. 
 (See Swaim v. U. S., 165 U. S., 553, 563.) 
 
 988 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 13. 
 
 Art. 10. [Desertion by resignation.] Any commissioned officer of the 
 Navy or Marine Corps who, having tendered his resignation, quits his post or 
 proper duties without leave, and with intent to remain permanently absent 
 therefrom, prior to due notice of the acceptance of such resignation, shall be 
 deemed and punished as a deserter. — (5 Aug., 1861, c. 54, s. 2, v. 12, pp. 316, 
 317.) 
 
 Necessity of acceptance. — "The resigna- 
 tion of an officer of the Navy is not effective 
 until it has been duly accepted by the Presi- 
 dent, who possesses the power of compelling 
 the officer to remain in the service by declining 
 to accept such resignation." (File 26505-21 
 and 28, citing Edwards v. U. S., 103 U. S., 471; 
 file 26262-2146.) 
 
 Implied resignation.— "If any officer of 
 the Navy accepts or holds an appointment in 
 the diplomatic or consular service of the Gov- 
 ernment, he shall be considered as ha\dng 
 resigned his place in the Navv, and it shall be 
 filled as a vacancy." (Sec. 1440, R. S.) 
 
 If an officer is illegally dismissed from the 
 8er\Tce, it becomes his duty at once or within 
 a reasonable time to appeal to the highest 
 authority for revocation, modification, or 
 correction of the illegal order. If he obeys 
 and submits for an unreasonable length of time, 
 he must be held to have abandoned all title 
 and claim to the office and its emolimients, and 
 to have waived his right to both. And it is 
 immaterial that he may have submitted to the 
 order because he was ignorant of the law. 
 (Ide V. U. S., 25 Ct. Cls., 401; affirmed on other 
 grounds, 150 U. S., 517. See also Armstrong 
 r. IT. S., 26 Ct. Cls., 387.) 
 
 The principle that an officer who acquiesces 
 in his dismissal from the service for a long period 
 of time has abandoned said office, which aban- 
 donment is equivalent to a resignation, does 
 not apply to an officer on the retired list, who 
 who owed no service to the Government, 
 (Fletcher v. U. S., 26 Ct. Cls., 541, 563.) 
 
 The doctrine of resignation by implication, 
 applicable to civil officers, is not to be favored 
 in the Army and Navy, where forms and reg- 
 ulations are prescribed and must be enforced. 
 
 A resignation by a naval officer is inoperative 
 until accepted by the proper authority, and 
 even if the acceptance of another office be held 
 equivalent to the tender of his resignation as 
 an officer of the Navy, he still remains an in- 
 cumbent of the naval office until such implied 
 resignation is accepted. (18 Op. Atty. Gen., 
 395.) 
 
 A cadet engineer who graduated from the 
 Naval Academy and was honorably discharged 
 from the service under an erroneous inter- 
 pretation of the law by the Navy Department, 
 and who thereupon accepted another and 
 incompatible office under the United States, 
 is entitled to be recognized as having continued 
 in the service, notwithstanding his discharge, 
 which was null and void; and under the cir- 
 cumstances which existed, and which were 
 owing to the fault of the Government and not 
 to fault of his, acceptance by him of an incom- 
 patible office was not tantamount to an im- 
 plied resignation of his office in the Navy. 
 (18 Op. Atty. Gen., 395; see also Winchell v. 
 U. S., 28 Ct. Cls., 30; and see art. 36, A. G. N.) 
 
 Certain cadet engineers who had graduated 
 from the Naval Academy were honorably dis- 
 charged under an erroneous interpretation by 
 the Navy Department of an act approved 
 August 5, 1882 (22 Stat., 285). Such discharges 
 were held by the courts to be void (see Perkins 
 V. U. S., 20 Ct. Cls., 438; 116 U. S., 483). Hdd, 
 that the fact such officers may have accepted 
 pay on discharge as provided by said act of 
 1882, without protest, or in some cases protested 
 against their discharge and subsequently _ ac- 
 cepted pay, is not tantamount to a resignation. 
 Protests and acceptance of pay could not change 
 the legal force of the statute, either for or 
 against them. (18 Op. Atty. Gen., 373.) 
 
 Art. 11. [Dealing in supplies.] No person in the naval service shall pro- 
 cure stores or other articles or supplies for, and dispose thereof to, the officers 
 or enlisted men on vessels of the Navy, or at navy yards or naval stations, for 
 his own account or benefit. — (26 Aug., 1842, c. 206, s. 1, v. 5, p. 535.) 
 
 Art. 12. [Importing dutiable goods.] No person connected with the Navy 
 shall, under any pretense, import in a public vessel any article which is liable 
 to the payment of duty.— (30 July, 1846, c. 74, s. 10, v. 9, p. 44.) 
 
 Art. 13. [Distilled spirits only as medical stores.] Distilled spirits shall be 
 admitted on board of vessels of war only upon the order and under the control 
 of the medical officers of such vessels, and to be used only for medicol purposes. — 
 (14 July, 1862, c. 164, s. 4, v. 12, p. 565.) 
 
 The possession of alcoholic liquors by any 
 person at any place under naval jurisdic- 
 tion designated by the President, except as 
 permitted by regulations for medicinal 
 pm-poses, and the sale of such liquors to 
 any person in the naval forces while in 
 
 uniform, were prohibited by act of May 18, 
 1917, section 12 (40 Stat., 82), as amended 
 by act of October 6, 1917 (40 Stat., 393). 
 See also national prohibition act of Oc- 
 tober 28, 1919, section 7 (41 Stat., 307). 
 
 989 
 
Sec. 1624, Art. 14. Pt. 2. REVISED STATUTES. The Navy. 
 
 Art. 14. [Fraud against United States; embezzlement; etc.] Fine and im- 
 prisonment, or such other punishment as a court-martial may adjudge, shall 
 be inflicted upon any person in the naval service of the United States. — (2 Mar., 
 1863, c. 67, s. 1, V 12, p. 696.) 
 
 [Pkesenting false claims.] Who presents or causes to be presented to 
 any person in the civil, military, or naval service thereof, for approval or pay- 
 ment, any claim against the United States or any officer thereof, knowing such 
 claim to be false or fraudulent; or 
 
 [Agreement to obtain payment of false claim.] Who enters into any 
 agreement or conspiracy to defraud the United States by obtaining, or aiding 
 others to obtain, the allowance or payment of any false or fraudulent claim; or 
 
 [False papers.] Who, for the purpose of obtaining, or aiding others to 
 obtain, the approval, allowance, or payment of any claim against the United 
 States or against any officer thereof, makes or uses, or procures or advises the 
 making or use of, any writing, or other paper, knowing the same to contain 
 any false or fraudulent statement; or 
 
 [Perjury.] Who, for the purpose of obtaining, or aiding others to obtain, 
 the approval, allowance, or payment of any claim against the United States 
 or any officer thereof, makes, or procures or advises the making of, any oath 
 to any fact or to any writing or other paper, knowing such oath to be false; or 
 
 [Forgery.] Who, for the purpose of obtaining, or aiding others to obtain, 
 the approval, allowance, or payment of any claim against the United States 
 or any officer thereof, forges or counterfeits, or procures or advises the forging 
 or counterfeiting of, any signature upon any writing or other paper, or uses, 
 or procures or advises the use of, any such signature, knowing the same to be 
 forged or counterfeited; or 
 
 [Delivering less property than receipt calls for.] Who, having 
 charge, possession, custody, or control of any money or other property of the 
 United States, furnished or intended for the naval service thereof, knowingly 
 delivers, or causes to be delivered, to any person having authority to receive 
 the same, any amount thereof less than that for which he receives a certificate 
 or receipt; or 
 
 [Giving receipts without knowing truth of.] Who, being authorized 
 to make or deliver any paper certifying the receipt of any money or other 
 property of the United States, furnished or intended for the naval service 
 thereof, makes, or delivers to any person, such writing, without having full 
 knowledge of the truth of the statements therein contained, and with intent 
 to defraud the United States; or 
 
 [Stealing, wrongfui.ly selling, &c.] Who steals, embezzles, knowingly 
 and willfully misappropriates, applies to his own use or benefit, or wrongfully 
 and knowingly sells or disposes of any ordnance, arms, equipments, ammuni- 
 tion, clothing, subsistence stores, money or other property of the United States, 
 furnished or intended for the military or naval service thereof; or 
 
 [Buying public military property.] Who knowingly purchases, or 
 receives in pledge for any obligation or indebtedness, from any other person 
 who is a part of or employed in said service, any ordnance, arms, equipments, 
 ammunition, clothing, subsistence stores, or other property of the United States, 
 such other person not having lawful right to sell or pledge the same; or 
 
 990 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 14. 
 
 [Any other fraud against the United States.] Who executes, at- 
 tempts, or countenances any other fraud against the United States. — (17 July, 
 1862, c. 204, art. 7, v. 12, p. 602.) 
 
 [Trial of offender after discharge.] And if any person, being guilty 
 of any of the offenses described in this article while in the naval service, receives 
 his discharge, or is dismissed from the service, he shall continue to be liable to be 
 arrested and held for trial and sentence by a court-martial, in the same manner 
 and to the same extent as if he had not received such discharge nor been dis- 
 missed.— (2 Mar., 1863, c. 67, s. 2, v. 12, p. 697.) 
 
 See sections 3617-3652, Revised Statutes, as to 
 duties of disbursing officers; and see Crim- 
 inal Code, act of March 4, 1909 (35 Stat., 
 1094, et seq.), sections 28-48, as to frauds, 
 etc. , upon the United States, and sections 
 36, 47, 86-97, as to embezzlement, etc. 
 Article 14 not repealed by later legisla- 
 tion.— Section 5438, Revised Statutes, pro- 
 vided for the punishment by civil coiu-ts of 
 "every person" who committed offenses in- 
 cluded by article 14, A. G. N, Said section 
 5438 was embodied in the Criminal Code (act 
 Mar. 4, 1909, 35 Stat., 1095) as section 35 
 thereof. Said section 35 of the Criminal 
 Code was reenacted, with amendments, by act 
 of October 23, 1918 (40 Stat., 1015), applj-ing 
 to "whoever" shall do the acts therein de- 
 scribed. Held, that the amendment of section 
 35 by said act of October 23, 1918, did not in 
 any manner refer to or repeal the article of 
 war (corresponding to art. 14, A. G. N.), and 
 does not deprive courts-martial of their juris- 
 diction of persons in the military and naval 
 service. (U. S. v. Barry, 260 Fed. Rep. 291.) 
 
 Discretionary punishment. — See note to 
 article 63, A. G. N., as to limitations of punish- 
 ment in time of peace; and note to article 8, as 
 to discretionary punishments. See also note 
 to article 22, A. G. N., as to punishment for 
 embezzlement. 
 
 Offenses under the article of war (correspond- 
 ing to this article) may be of greater or less 
 gra\aty, and the necessity for the exercise of 
 discretion in the matter of punishment is ob- 
 vious. Conviction in some c^ses might deserve 
 the pimishment of fine, or of imprisonment, or 
 of both, as well as of dismissal in addition to 
 either or both ; for others, lesser penalties might 
 suffice. The word "or" was properly used to 
 give play to discretion. In any event, fine 
 might be inflicted for the commission of one of 
 the offenses enumerated in this article, and 
 imprisonment for the commission of another; 
 and dismissal under another charge of conduct 
 unbecoming an officer and a gentleman. (Car- 
 ter V. McClaughrj^ 183 U. S., 365, 392; the ar- 
 ticle of war under consideration in this case 
 read, "fine or imprisonment, or by such other 
 punishment as a court-martial may adjudge.") 
 The word "imprisonment" as used in the 
 article of war was not employed in a technical 
 sense to signify imprisonment at a military post 
 without hard labor, but has a broader significa- 
 tion and empowers an Aiiny court-martial to 
 sentence a person in the military service to 
 imprisonment at hard labor, or to a peniten- 
 tiary where hard labor is a part of the discipline. 
 
 where the offense of which he is convicted is 
 one for which the civil tribunals could impose a 
 like sentence. (In re Langan, 123 Fed. Rep., 
 132; see note to art. 7, A. G. N. The articles of 
 war expressly prohibited confinement in a pen- 
 itentiary, unless the offense was one so punish- 
 able by the civil courts. ) 
 
 It is not probable that Congi-ess intended to 
 prescribe a different penalty for the theft or 
 embezzlement of Government property, de- 
 pending upon the tribunal before whom the 
 accused happened to be tried. No reason is 
 perceived why the sentence in one case should 
 be less severe than in the other. The offense 
 of stealing Government property or embezzling 
 is quite as heinous when committed by a per- 
 son in the military service as when committed 
 by a civilian. It is not believed, therefore, 
 that the omission of the word "hard labor" in 
 the article of war is any evidence of a design not 
 to subject persons in the military service to 
 imprisonment at hard labor, provided that they 
 commit offenses which would subject them to 
 such punishment if they happened to be tried 
 before a civil tribunal. (In re Langan, 123 
 Fed. Rep., 132.) 
 
 A person sentenced by Army court-martial 
 to fine and imprisoimient for presenting fraud- 
 ulent claims to the United States may be pun- 
 ished by dismissal from the service for the same 
 offense as conduct unbecoming an officer and a 
 gentleman. (Rose v. Roberts, 99 Fed. Rep., 
 948. See note to art. 22, A. G. N.) 
 
 Under the article of war, pro\iding that a 
 person in the military service who shall be 
 guilty of certain offenses shall on conviction 
 thereof be punished by "fine or imprisonment, 
 or by such other punishment as a court-martial 
 may adjudge," a person convicted of two of- 
 fenses named in said article may be punished 
 by fine as to one, and by imprisonment as to 
 the other. (Rose r. Roberts, 99 Fed. Rep., 
 948.) 
 
 Conspiring to defraud the United States, and 
 causing false and fraudulent claims to be made 
 against the United States, are separate and dis- 
 tinct offenses* and the fact that the charges re- 
 lated to and grew out of the same transaction 
 made no difference. Accordingly, the military 
 court was empowered to punish the accused, as 
 to one, by fine, and as to the other, by imprison- 
 ment, and dismissal might have been added to 
 fine and imprisonment as part of the punish- 
 ment for either or both of the offenses. The 
 accused was not twice put in jeopardy because 
 the sentence was greater than the court-martial 
 had jurisdiction to inflict on conviction of any 
 
 991 
 
Sec. 1624, Art. 14. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 one of the offenses charged, taken singly, the 
 offenses not V)eing the same within the meaning 
 of the constitutional pro\-ision. (Carter v. 
 McClaughry, 1S;5 l'. S., 3(55.) 
 
 Jui-isdiction of ci\dl authorities. — A pay- 
 master's clerk in the Navy is a ^'person in the 
 naval forces of the United States"' wdthin the 
 meaning of the act of March 2, 1863 (12 Stat., 
 G9G, now em])odied in art. 14, A. G. N.), and if 
 he embezzles funds of the United States he is 
 not liable to the penalty provided in the third 
 section of that act (now sec. 3490, R. S., relat- 
 ing to such flenses by persons not in the mili- 
 tary or naval forces), but is liable in a civil suit 
 against him by the United States for the amount 
 embezzled. (U. S. v. Bogart, 24 Fed. Cas., No. 
 14,616.) 
 
 A district court of the United States has 
 jurisdiction to try a person charged with having 
 forged an obligation of the United States (a 
 certificate of deposit issued by an Army pay- 
 master to a soldier), mth intent to defraud, 
 which is made an offense by section 5414, 
 Revised Statutes (now sec. 148, Criminal Code, 
 act j\Iar. 4, 1909, 35 Stat., 1115), although he 
 was at the time an officer of the Army and the 
 alleged offense was committed at a military 
 post and ■\\'ith intent to defraud the United 
 States and an enlisted soldier, where the ac- 
 cused has since been discharged from the 
 Army without any action against him having 
 been taken by the military authorities, there 
 being no pro\asion, either constitutional or 
 statutory, conferring exclusive jurisdiction on 
 courts-martial to punish such offense. (Neall 
 t;. U. S., 118 Fed. Rep., 699.) 
 
 The civil courts of the United States have 
 concun-ent jurisdiction with courts-martial to 
 try an officer of the Army for conspiracy to 
 defraud the United States. (U. S. v. Hirsch, 
 254 Fed. Rep., 109.) 
 
 The 60th (now 90th) article of war (corre- 
 sponding to art. 14, A. G. N.) dealt solely with 
 those in the military 8er\ace; and section 
 5438, ReAdsed Statutes (now sec. 35, Criminal 
 Code, Mar. 4, 1909, 35 Stat., 1095, as amended 
 Oct. 23, 1918, 40 Stat., 1015), dealt with any 
 person, whether in civil life or in the military 
 or naval service. Where an offense of this 
 character was committed by both a civilian 
 and a member of the military or naval service 
 it might be highly important to try both ac- 
 cused before the same tribunal at the same time ; 
 hence Congi-ess provided that members of the 
 military and naval forces could be tried before 
 ci\'il courts of competent, jurisdiction. (U. S. 
 V. Barry, 260 Fed. Rep., 291.) 
 
 An officer of the Army is subject to trial by 
 the civil courts of the United States for viola- 
 tion of section 5438, Revised Statutes (now -sec. 
 35, Criminal Code, above cited). (Franklin v. 
 TJ. S., 216 U. S., .559.) 
 
 Jurisdiction after discharge from, the 
 service. — See cases noted above, under pre- 
 amljle to section 1624, as to jurisdiction over 
 persons discharged from the Navy; see also 
 note to article 61, A. G. N. 
 
 An offense committed by a party while 
 actually in the naval service is a "case arising 
 in the naval forces, " within the meaning of 
 this term as used in the fifth amendment to 
 the Constitution; and Congress has power to 
 
 authorize the trial for such an offense by a court- 
 martial upon proceedings commenced after the 
 connection with the service of the party charged 
 has been severed. (In re Bogart, 3 Fed. Cas., 
 No. 1,596.) 
 
 Under this article, a party charged with 
 embezzlement as therein provided, committed 
 while employed in the naval service, and 
 afterwards dismissed or discharged, is liable 
 to be arrested and tried by a court-martial in 
 the same manner as if he had not been dismissed 
 or discharged. (In re Bogart, 3 Fed. Cas. No. 
 1,596.) 
 
 Where the charges against an enrolled mem- 
 ber of the Naval Reserve Force were laid under 
 article 22, his case does not come within the 
 clause of article 14 pro\'iding for the trial of 
 offenses after discharge of the accused from 
 the service, not\vithstanding that the specifica- 
 tions of the charge against him could be con- 
 strued as working a fraud upon the United 
 States in violation of article 14. (U. S. v. 
 MacDonald, 265 Fed. Rep., 695.) 
 
 Fraud against the United States. — • 
 Where an enrolled member of the Naval Re- 
 serve Force attempted by the payment of 
 money to bribe a chief boatswain's mate in the 
 Navy to obtain illegally and unlawfully the 
 transfer of a seaman fi'om sea duty to shore duty, 
 such conduct could be construed as working a 
 fraud upon the United States under this article. 
 (U. S. i;. MacDonald, 265 Fed. Rep., 695, 698.) 
 
 A conspiracy to defraud the United States 
 does not necessarily involve a direct pecuniary 
 loss to the United States, but the statute in- 
 cludes any conspiracy to impair, obstruct, or 
 defeat the lawful function of any department 
 of the Government. (Woog v. U. S., 48 Ct. 
 Cls., 80, 89.) 
 
 The authorities will show that it is not essen- 
 tial to charge or prove an actual financial or 
 property loss to the Government to make a case 
 under the statute relating to conspiracies to 
 defraud the United States. (Woog v. U. S., 
 48 Ct. Cls., 80, 89, citing Hyde v. Shine, 199 
 U. S., 81; U. S. V. Keitel, 211 U. S., 394; 
 Curley v. U. S., 130 Fed. Rep., 1; McGregor v. 
 U. S., 134 Fed. Rep., 195; Benson v. Henkel, 
 198 U. S., 11; U. S. V. Plyler, 222 U. S., 15.) 
 
 Property rights of the Government are by no 
 means all of its rights. Financial losses to the 
 Government are but incidents to the discharge 
 of those functions for which the Government 
 was established. The proper discharge of these 
 functions is of the utmost concern, regardless of 
 the matter of financial loss to the Treasury of 
 the United States. (Woog v. U. S., 48 Ct. Cls., 
 80, 89.) 
 
 Evidence in conspiracy cases. — -In con- 
 spiracy cases, proof of the acts and declarations 
 of alleged conspirators is not properly admis- 
 sible when community of intent and design 
 has not been established; but if received, the 
 error may be cured by the subsequent introduc- 
 tion of proof of the conspiracy existing at the 
 time the alleged declarations were made. 
 (22 Op. Atty. Gen., 589; see note to art. 45, A. 
 G. N., as to evidence before courts-martial.) 
 
 Testimony tending to show such a relation 
 or understanding between alleged conspirators 
 as would be indicative of a purpose to defraud 
 the Government bv means of contracts for 
 
 992 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 14. 
 
 public works to be given out and carried on 
 under charge of the accused would be admis- 
 sible before a court-martial even though it 
 related to matters antedating the time of the 
 particular conspiracy charged. (22 Op. Atty. 
 Gen., 589.) 
 
 Fraud not against the United States. — 
 See note to article 8, A. G. N. 
 
 Embezzlement. — See note to article 22, 
 A. G. N., as to embezzlement of property not 
 furnished or intended for the naval service of 
 the United States; and see cases noted below, 
 under this article. 
 
 The word "embezzlement" is not defined 
 by article 14, A. G. N., and consequently it is 
 necessary to look to the offense as defined in 
 the penal statutes relating to United States 
 officials who are charged wdth the duty of 
 holding and disbursing funds belonging to the 
 Government, in order to determine of what 
 element the act consists. (28 Op. Atty. Gen., 
 286, citing sees. 86-92, Criminal Code, Mar. 4, 
 1909, 35 Stat., 1105.1 
 
 Where a common-law offense is named in an 
 act of Congi'ess \vithout defining it, undoubtedly 
 the courts mil construe the statutes as applying 
 to the offense as defined at common law; but 
 embezzlement is not a common-law offense. 
 No resort can be had to the definitions of em- 
 bezzlement given in the laws of the several 
 States, as there is no uniformity in the State 
 statutes upon the subject. If embezzlement as 
 defined in the Revised Statutes and now in 
 the Criminal Code is not the offense referred to 
 in article 14, A. G. N., what is the precise 
 nature of the offense therein specified? (29 
 Op.Atty. Gen., 563, 569.) 
 
 Where an assistant pajinaster in the Navy 
 was charged with embezzlement in that he 
 "did fail to safely keep and account for the 
 sum " specified, hdd that this was sufficient to 
 sustain the charge, although it was not proved 
 that the money was actually appropriated by 
 the accused or that he made anv particular 
 disposition of it. (28 Op. Atty. Gen., 286.) 
 
 An assistant paymaster in the Navy, charged 
 with the duty of keeping safely money intrusted 
 to his care, who was furnished a safe with 
 combination locks on both the outer and inner 
 doors for the safe-keeping of this money, and 
 who, after remo\dng the lock from the inner 
 door of the safe and failing to lock the outer 
 door, left the vessel, knowing the condition of 
 the safe, and as a result a portion of the money 
 was lost, is chargeable with negligence equiva- 
 lent to a criminal intent, and is guilty of em- 
 bezzlement under the pro\'isions of article 14, 
 A. G. N., and section 88 of the Criminal Code. 
 (28 Op. Atty. Gen., 286.) 
 
 A general principle recognized by all the 
 authorities is that there may be such character 
 of negligence as will take the place of criminal 
 intent. (28 Op. Atty. Gen., 286, 296; see note 
 to art. 43, A. G. N., as to charges and specifi- 
 cations.) 
 
 The authorities are in sharp conflict and the 
 question is not one definitely settled by the 
 United States courts, but there is an apparent 
 leaning in favor of the position that there must 
 be knowledge of the act which constitutes the 
 offense, and an intent to commit such act, 
 although knowledge that the act will constitute 
 
 a criminal offense is not necessary, as the want 
 of such knowledge would be only ignorance of 
 the law. (28 Op. Atty. Gen., 286, 296.) 
 
 Neither section 87 nor section 89 of the Crimi- 
 nal Code requires an intent to defi'aud the 
 Government, but only an intent to do the thing 
 prohibited. (29 Op. Atty, Gen., 563, 566.) 
 
 The willful use of Government funds by a 
 pay officer of the Navy for the purpose of cashing 
 a certificate of deposit as an accommodation 
 to a personal friend constitutes embezzlement 
 under the pro\'isions of article 14, A. G. N., 
 and sections 87 and 89 of the Criminal Code 
 (above cited). (29 Op. Atty. Gen., 563, 567.) 
 
 The overpayment by a pay officer of the Navy 
 to himself from public funds, where the officer 
 is guilty of such negligence or indifference as 
 to indicate a willful disregard of the duties 
 I imposed upon him by law with respect to the 
 safe-keeping of the moneys in his charge, is in 
 violation of article 14, A. G. N., and sections 
 87 and 89 of the Criminal Code (above cited), 
 although there may have been no criminal 
 intent involved. (29 Op. Atty. Gen., 563, 568.) 
 
 The willful withdrawing of public funds by 
 a pay officer of the Navy for his personal use 
 while absent from his station of duty, even 
 though there be no intent on his part to defraud 
 the United States and the funds withdrawn 
 are subsequently replaced, is a violation of 
 the provisions of article 14, A. G. N., and 
 sections 87 and 89 of the Criminal Code (above 
 cited), against converting pulilic funds to his 
 own use except as authorized by law. (29 Op. 
 Atty. Gen., 563, 568.) 
 
 Embezzlement of property not furnished 
 for naval service. — See note to article 22, 
 A. G. N. 
 
 Under the gi'ant of jurisdiction to a coui-t- 
 martial conferred by the articles of war, pro- 
 viding that any person in the military service 
 who misappropriates any money of the United 
 States "furnished or intended for the military 
 service thereof," shall be punished, etc., sucn 
 a court has no power under that provision to 
 convict an officer of the Army of misappropri- 
 ating money appropriated by Congress for the 
 improvement of rivers and harbors. (In re 
 Carter, 97 Fed. Rep., 496.) 
 
 Most of the enumerated classes of property 
 in the articles of war are ob\T-Ously military 
 stores used for military purposes, and on the 
 principle of noscitur a sociis all the classes 
 designated fall into the same category; and 
 this seems to be put beyond question by the 
 words "furnished or intended for the military 
 service thereof." The military service as used 
 in this connection means the land forces or the 
 Army. The fact that money appropriated for 
 river and harbor improvements is disbursed 
 by an officer of the Army and the work super- 
 \ased by the engineer force in the service of 
 the Government does not make the moneys so 
 appropriated moneys "furnished or intended 
 for the military service" as the words are used 
 in the articles of war concerning embezzlement. 
 (Carter v. McClaughry, 183 tl. S., 365, 399; 
 see note to art. 22, A. G. N.) 
 
 Pvmishment for embezzlement. — Sen- 
 tence requiring amount embezzled to be turned 
 over to Government officer held legal: See note 
 to article 22, A. G. N., under "Embezzlement." 
 
 993 
 
Sec. 1624, Art. 19. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 Art. 15. [List of persons claiming prize money. Repealed.] 
 
 This article reads as follows: 
 
 "Art. 1"). The coniniaiuling ollicer of every 
 vessel in the Navy entitled to or claiming an 
 award of prize-money shall, as soon as it may 
 be practicable after the capture, transmit to the 
 Navy Department a complete list of the officers 
 and men of his vessel entitled to share, stating 
 therein the quality of each person rating; and 
 every commanding officer who offends against 
 this article shall be punished as a court-martial 
 mav direct." [See § 4615.]— fl7 July, 1862, c. 
 204, 8. 5, v. 12, p. 607.) 
 
 It was repealed by section 13 of the Navy 
 personnel act approved March 3, 1899 (30 Stat., 
 1007), which contained the following clause: 
 
 "And all provisions of law authorizing the 
 distribution among captors of the whole or any 
 portion of the proceeds of vessels, or any prop- 
 erty hereafter captured, condemned as prize, 
 or providing for the pajTuent of bounty for the 
 sinking or destruction of vessels of the enemy 
 hereafter occurring in time of \yar, are hereby 
 repealed." 
 
 See, generally, on the subject of "Prize," 
 sections 4613-4652, Revised Statutes. 
 
 Art. 16. [Removing property from prize.] No person in tlie Navy sliall 
 tal^e out of a prize, or vessel seized as a prize, any money, plate, goods, or any 
 part of lier equipment, unless it be for the better preservation thereof, or unless 
 such articles are absolutely needed for the use of any of the vessels or armed 
 forces of the United States, before the same are adjudged laA^^ful prize by a com- 
 petent court; but the whole, without fraud, concealment, or embezzlement, shall 
 be brought in, in order that judgment may be passed thereon; and every person 
 wlio offends against this article shall be punished as a court-martial may 
 direct.— (17 July, 1862, c. 204, s. 7, v. 12, p. 607.) 
 
 Art. 17. [Maltreating persons on prize.] If any person in the Navy strips 
 off the clothes of, or pillages, or in any manner maltreats, any person taken on 
 board a prize, he shall suffer such punishment as a court-martial may adjudge. — 
 (17 July, 1862, c. 204, s. 8, v. 12, p. 607. Lively and Cargo, 1 Gallis, 314.) 
 
 damages for personal ill usage. 
 15 Fed. Cas. No. 8,403.) 
 
 (The Lively, 
 
 Civil liability. — If captors wantonly injure 
 the captured crew, the prize court will award 
 
 Art. 18. [Returning fugitives from service.] If any officer or person in 
 tlie naval service employs any of the forces under his command for the purpose 
 of returning any fugitive from service or labor, he shall be dismissed from the 
 service.— (13 IMar., 1862, c. 40, s. 1, v. 12, p. 354.) 
 
 Art. 19. [Enlisting deserters, minors, etc.] Any officer who knowingly enlists 
 into the naval service any person who has deserted in time of w^ar from the 
 naval or military service of the United States, or any insane or intoxicated 
 person, or any minor between the ages of fourteen and eighteen years, without 
 the consent of his parents or guardian, or any minor under the age of fourteen 
 years, shall be punished as a court-martial may direct. 
 
 This article was reenacted to read as above 
 by act of August 22, 1912 (37 Stat., 356). As 
 originally enacted it read as follows: 
 
 "Art. 19. Any officer who knowingly enlists 
 into the naval service any deserter from the 
 naval or military service of the United States, 
 or any insane or intoxicated person, or any mi- 
 nor between the ages of sixteen and eighteen 
 years, without the consent of his parents or 
 guardian, or any minor under the age of sixteen 
 years, shall be dishonorably dismissed from the 
 service of the United States." [See. §§ 1418, 
 1419.]— 1'3 Mar., 1865, c. 79, s. IS, v. 13, p. 490.) 
 
 It had previously been amended by act 
 of May 12, 1879 (21 Stat., 3), which reenacted 
 said article, substituting the word "fifteen " for 
 the word "sixteen" in the two places in which 
 
 the latter word appeared, and substituting the 
 words, "punished as a court-martial may di- 
 rect," for the words, "dishonoral:)ly dismissed 
 from the service of the United States." 
 
 It was further amended, by implication, by 
 the act of February 23, 1881, section 2 (21 Stat., 
 338), which changed the qualifications for en- 
 listment in the Navy, as prescribed bv sections 
 1418-1420, Revised Statutes, "by striking out 
 the word ' fifteen ' and inserting in its stead the 
 word 'fourteen.' " 
 
 Status of persons illegally enlisted. — -See 
 notes to sections 761, 1418-1420, Revised Stat- 
 utes, and see note above, under preamble to 
 section 1624, subheadings, "Void enlistment" 
 and "Voidable enlistment." See also note to 
 article 22, A. G. N. 
 
 994 
 
The Navy. PL 2. REVISED STATUTES. Sec. 1624, Art. 20. 
 
 Art. 20. [Duties of commanding officers.] Every commanding officer of a 
 vessel in the Navy shall obey the following rules: — (17 July, 1862, c. 204, s. 16, 
 V. 12, p. 609.) 
 
 First. [Men received on board.] Whenever a man enters on board, 
 the commanding officer shall cause an accurate entry to be made in the ship's 
 books, showing his name, the date, place, and term of his enlistment, the place 
 or vessel from which he was received on board, his rating, his descriptive list, 
 his age, place of birth, and citizenship, with such remarks as may be necessary. 
 
 Second. [List of officers, men, and passengers.] He shall, before 
 sailing, transmit to the Secretary of the Navy a complete list of the rated men 
 under his command, showing the particulars set forth in rule one, and a list of 
 officers and passengers, showing the date of their entering. And he shall cause 
 similar lists to be made out on the first day of every third month and trans- 
 mitted to the Secretary of the Navy as opportunities occur, accounting therein 
 for any casualty which may have happened since the last list. 
 
 Third. [Deaths and desertion.] He shall cause to be accurately min- 
 uted on the ship's books the names of any persons dying or deserting, and the 
 times at which such death or desertion occurs. 
 
 Fourth. [Property of deceased persons.] In case of the death of any 
 officer, man, or passenger on said vessel, he shall take care that the paymaster 
 secures all the property of the deceased, for the benefit of his legal representa- 
 tives. 
 
 Fifth. [Accounts of men received.] He shall not receive on board any 
 man transferred from any other vessel or station to him, unless such man is fur- 
 nished with an account, signed by the captain and paymaster of the vessel or 
 station from which he came, specifying the date of his entry on said vessel or 
 at said station, the period and term of his service, the sums paid him, the 
 balance due him, the quality in which he was rated, and his descriptive list. 
 
 Sixth. [Accounts of men sent from the ship.] He shall, whenever 
 officers or men are sent from his ship, for whatever cause, take care that each 
 man is furnished wdth a complete statement of his account, specifying the date 
 of his enlistment, the period and term of his service, and his descriptive list. 
 Said account shall be signed by the commanding officer and paymaster. 
 
 Seventh. [Inspection of provisions.] He shall cause frequent inspec- 
 tions to be made, into the condition of the provisions on his ship, and use every 
 precaution for their preservation. 
 
 Eighth. [Health of crew.] He shall frequently consult with the surgeon 
 in regard to the sanitary condition of his crew, and shall use all proper means to 
 preserve their health. And he shall cause a convenient place to be set apart for 
 sick or disabled men, to which he shall have them removed, with their ham- 
 mocks and bedding, when the surgeon so advises, and shall direct that some of 
 the crew attend them and keep the place clean. 
 
 Ninth. [Attendance at final payment of crew.] He shall attend in 
 person, or appoint a proper officer to attend, when his crew is finally paid off, to 
 see that justice is done to the men and to the United States in the settlement of 
 the accounts 
 
 995 
 
Sec. 1624, Art. 22. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Tenth. [Articles for the government of the Navy.] He shall cause 
 the articles for the o;overninent of the Navy to be hung up in some public part of 
 the ship and read once a month to liis ship's company. 
 
 [Punishment for offending against this article.] Every command- 
 ing oflicer who offends against the provisions of this article shall be punished 
 as a court-martial mav direct. 
 
 Effects of deceased persons. — Disposition 
 of money and other effects of deceased persons 
 in the naval service is regulated bv act of 
 March 29, 1918 (40 Stat., 499). 
 
 Manner of settling accoiants of deceased 
 officers and enlisted men in the Navy, where 
 amount due is less than S500, is provided for 
 by act of May 27, 1908 (35 Stat., 373). 
 
 Payment of arrears due deceased seamen: 
 See section 274, Revised Statutes, and note 
 thereto. 
 
 Accounts of pay officer of lost vessel, fixing 
 date of loss of missing vessel, and accoxints of 
 
 seamen on lost vessel: See sections 284, 286, 
 and 287, Revised Statutes. 
 
 The regulations of the Navy concerning 
 payments to administrators of balances due 
 deceased seamen and marines, pa\Tnents of 
 arrearages claimed under vvills, the wills of 
 persons in actual service and the attestation of 
 the same, etc., are not applicable to or binding 
 upon the accounting officers of the Treasury 
 Department in the settlement of naval accounts; 
 they extend to and govern only those persons 
 who are in the naval service. (16 Op. Atty. 
 Gen., 494; see notes to sections 161 and 1547, 
 Revised Statutes, as to regulations in general.) 
 
 Art. 21. [Authority of officers after loss of vessel.] When the crew of any 
 vessel of the United States are separated from their vessel by means of her 
 wi'eck, loss, or destruction, all the command and authority given to the officers 
 of such vessel shall remain in full force until such ship's company shall be regu- 
 larly discharged from or ordered again into service, or until a court-martial or 
 court of inquir}^ shall be held to inquire into the loss of said vessel. And if any 
 officer or man, after such wreck, loss, or destruction, acts contrary to the dis- 
 cipline of the Navy, he shall be punished as a court-martial may direct. — (17 
 July, 1862, c. 204, s. 14, v. 12, p. 608.) 
 
 Lost or captured vessels. — See sections 
 1574-1575, Revised Statutes, as to pay of crews 
 of lost or captured vessels. See also sections 
 284, 286, and 287, Revised Statutes, as to ac- 
 counts of pay officer of lost vessel, fixing date 
 
 Art. 22. [Offenses not specified.] All offenses committed by persons 
 belonging to the Navy which are not specified in the foregoing articles shall 
 be punished as a court-martial may direct. — (17 July, 1862, c. 204, s. 1, v. 12, 
 p. 603, art. 8.) 
 
 of loss of missing vessel, and accounts of seamen 
 on lost vessel. See also note to article 20, A. 
 G. N., as to effects of deceased persons and 
 settlement of their accounts. 
 
 Amendment to this section was made bv act of 
 March 3, 1893 (27 Stat., 716), reading as 
 follows: 'And fraudulent enlistment, and 
 the receipt of any pay or allowance there- 
 under, is hereby declared an offense 
 against naval di8ciplin(e) and made punish- 
 able by general court-martial, under 
 article twenty-two of the articles for the 
 government of the Navy; but this pro- 
 vision shall not take effect until sixty days 
 after the passage of this act." 
 Nature of offenses punishable under this 
 article. — Article 22, A. G. N., applies only to 
 offenses " ' not specified in the foregoing articles, ' ' 
 and which are recognized as military offenses 
 bv the iisages of the naval service. (Smith v. 
 Whitney, 116 U. S., 167, 183.^ 
 
 This article is not intendea to confer upon a 
 court-martial general criminal jurisdiction, 
 but only jurisdiction over those offenses (not 
 specified m the preceding articles of the sec- 
 
 tion) which are injurious to the order and 
 discipline of the Navy, the jurisdiction being 
 giv^en for the purpose of preserving that order 
 and discipline. (16 Op. Atty. Gen., 578.) 
 
 The reference is to crimes created or made 
 punishable by the common law, or by the 
 statutes of the United States, when directly 
 prejudicial to good order and militarv discip- 
 line. (Carter v. McClaughry, 183 U.\S., 365, 
 397, construing article of war corresponding to 
 art. 22, A. G. N.) 
 
 WTiere an offense is specifically provided for 
 in any of the articles of war prior to the 62d 
 (corresponding to article 22, A. G. N.), the 
 grant of jurisdiction to a court-martial to try 
 and punish such offenses is conferred by the 
 particular article which mentions it, and not 
 by the general language of the 62d article pro- 
 viding for the punishment of offenses, not 
 capital, though not mentioned in the preced- 
 ing articles. (In re Carter, 97 Fed. Rep., 496.) 
 
 996 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 23. 
 
 A charge laid under article 22, A. G. N., 
 would be of doubtful validity where the 
 offense so charged is specifically provided for 
 in one of the "foregoing articles," as in such 
 case it could with much reason be urged that 
 the offense is excluded by express language 
 from article 22. (29 Op. Atty. Gen., 563, 570; 
 see below, under "Embezzlement"; and see 
 note to art. 43, A. G. N., as to charges and 
 specifications in general.) 
 
 Under the article of war providing that all 
 crimes not capital, etc., which officers and 
 soldiers may be guilty of to the prejudice of 
 good order and military discipline, "though 
 not mentioned in the foregoing articles," are 
 to be taken cognizance of by courts-martial 
 and punished at the discretion of such court, 
 the construction would not be unreasonable if 
 it were held that the words, "though not 
 mentioned in the foregoing articles of war," 
 meant "not\vithstanding they are not men- 
 tioned," and that the article was intended to 
 cover all crimes, whether previously enumer- 
 ated or not. It would be going much too far 
 to say that if a court-martial so construed the 
 words, and sentenced for a crime previously 
 mentioned, the sentence, when made his own 
 by the President by approval thereof, would 
 be absolutely void. (Carter v. McClaughry, 
 183 U. S., 365, 397; see note to art. 53, A. G. N.) 
 
 Under every system of military law for the 
 government of either land or naval forces, the 
 jurisdiction of courts-martial extends to the 
 trial and punishment of the acts of military or 
 naval officers which tend to biing disgrace and 
 reproach upon the service of which they are 
 members, whether those acts are done in the 
 performance of military duties, or in a civil 
 position, or in a social relation, or in private 
 business. According to precedent, it includes 
 acts having no relation to the public service, 
 military or civil, except so far as they tend to 
 bring disgrace and reproach upon the former, 
 such as making an unfounded claim for the 
 price of a horse, or attempting to seduce a 
 brother officer's wife during his illness, or for 
 not attempting to vindicate his honor and 
 reputation when accused by fellow passengers 
 of stealing property on board a vessel while 
 traveling on leave of absence, regardless of 
 whether such accusation was true. (Smith v. 
 Whitney, 116 U. S., 167, 183.) 
 
 Courts-martial derive their jurisdiction and 
 are regulated by an act of Congress in which the 
 crimes wliich may be committed, the manner 
 of charging the accused, and of the trial and 
 the punishments which may be infhcted are 
 expressed in terms; or they may get jurisdic- 
 tion by a fair deduction, from the definition of 
 the crime, that it comprehends, and that the 
 legislature meant to subject to punishment 
 one of a minor degree of a kindred character 
 which has already been recognized to be such 
 by the practice of courts-martial in the army 
 and navy ser\'ices of nations, and by those 
 functionaries in different nations to whom has 
 been confided a revising power over the sen- 
 tences of courts-martial. And when offenses 
 and crimes are not given in terms or by defini- 
 tion, the want of it may be supplied by a com- 
 prehensive enactment such as contained in the 
 articles for the government of the Navy, which 
 
 means that courts-martial have jurisdiction of 
 such crimes as are not specified, but which 
 have been recognized to be crimes and offenses 
 by the usages in the navy of all nations, and 
 that they shall be punished according to the 
 laws and customs of the sea. Notwithstanding 
 the apparent indeterminateness of such a pro- 
 Adsion, it is not liable to abuse; for what those 
 crimes are and how they are to be punished is 
 well known by practical men in the Navy and 
 Army, and by those who have studied the law 
 of courts-martial and the offenses of which the 
 different courts-martial have cognizance. 
 (Dynes v. Hoover, 20 IIow., 65, 82; Smith v. 
 Whitney, 116 U. S., 167, 182.;) 
 
 A court-martial can take no cognizance of 
 the validity of a contract. (1 Op. Atty. Gen., 
 177, 178.) 
 
 For other cases, see notes below, under this 
 article. 
 
 Embezzlement. — The charge of embezzle- 
 ment of public funds, furnished and intended 
 for the naval service, by a disbursing officer of 
 the Navy, should be formulated under para- 
 graph 9 of article 14, A. G. N.,; but there is no 
 rule of practice which prohibits the formulation 
 of the same charge under more than one article 
 and as a matter of precaution it might be ad\ds- 
 able to formulate the charge under i)oth articles 
 14 and 22, A. G. N. (29 Op. Atty. Gen., 563, 
 568-570; see also note to art. 14, A. G. N.) 
 
 Under the 62d article of war (corresponding 
 to art. 22, A. G. N.), and section 5488, Revised 
 Statutes (now sec. 87, Criminal Code, Mar. 4, 
 1909, 35 Stat., 1105), providing for punishment 
 of embezzlement by disbursing officers, held 
 that where an officer of the Anny has been 
 found guilty by court-martial of willfully mis- 
 appropriating money appropriated by Congress 
 for the improvement of rivers and harbors, the 
 court has authority to impose a penalty both 
 by fine and imprisonment. (In re Carter, 97 
 Fed. Rep., 496; see note to art. 14, A. G. N.) 
 
 A charge of embezzlement in violation of 
 the 62d article of war (corresponding to art. 22, 
 A. G. N.), based on the action of the accused 
 in applying to a purpose not prescribed by law 
 large sums of public money intrusted to him 
 for river and harbor purposes, was not the same 
 offense as specified in article 60, subdivision 9 
 of the articles of war (corresponding to art. 14, 
 par. 9, A. G. N.), because it was not embezzle- 
 ment of money "furnished or intended for the 
 military service. " Such embezzlement would 
 seem to be detrimental to the service within 
 the intent and meaning of article 62, but it 
 is enough that it was peculiarly for the court- 
 martial to determine whether the crime charged 
 was ' ' to the prejudice of good order and military 
 discipline. " (Carter v. McClaughry, 183 U. 
 S., 365, 396, citing Swaim v. U. S., 165 U. S., 
 553; Smith v. Whitney, 116 U. S., 178; U. S. 
 V. Fletcher, 148 U. S., 84. See also note to 
 art. 14, A. G. N.). 
 
 Where an officer of the Army was charged 
 vd^th embezzlement in violation of section 5488, 
 Revised Statutes, in" violation of the 62d 
 article of war, held that the specified crime was 
 not mentioned in the preceding articles, be- 
 cause the embezzlement charged was not of 
 money "furnished or intended for the military 
 
 997 
 
Sec. 1624, Art. 22. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 service." (Carter v. McClaughry, 183 U.S., 
 365.) 
 
 Where an officer of the Army without author- 
 ily received sums of money paid liy drafted 
 men for the purpose of obtaining substitutes, 
 such men paying the money to him in reliance 
 upon his oflicial station and duty as an officer 
 of the Govermnent, and he converted same to 
 his own use, held that the subsequent action 
 of the military authorities in seizing the money, 
 followed by his court-martial for embezzlement 
 thereof and execution of the sentence adjudged 
 by the court, constituted ratification of his un- 
 authorized act in receiving such money; and 
 it can not be claimed that the money was paid 
 to him in his private capacity and that the 
 Govermnent is required to return same to his 
 estate. (Colman v. U. S., 38 Ct. Cls., 315.) 
 
 An officer of the Army was convicted by 
 court-martial of embezzlement and sentenced 
 to be dismissed from the service, to forfeit all 
 pay and allowances due or to become due, to 
 1)0 compelled to turn over to such officer as 
 the commanding general should designate the 
 sum of $18,963 (being the amount he was found 
 guilty of embezzling), to pay a fine of $700 to 
 the United States, and to be imprisoned for 
 the period of seven months at such place as the 
 commanding general shall designate, and 
 thereafter until said fine is paid and said smn 
 of money is turned over: Held, that the portion 
 of said sentence that the money be turned over 
 to the military authorities was not illegal. 
 (Colman v. U. S., 38 Ct. Cls., 315.)_ 
 
 Manslaughter.— See note to article 6, A. G. 
 N., as to finding of manslaughter under charge 
 of murder. 
 
 Where an assault was committed on board a 
 steamer belonging to the Navy (the vessel being 
 at the time under way in the Thames River 
 opposite the city of New London, Conn. ), by 
 a coal heaver in the naval service upon a second- 
 class fireman in the same service, from the 
 effects of which the latter subsequently died: 
 Held, that a naval general court-martial can, 
 imder article 22 of section 1624, Revised 
 Statutes, take jurisdiction of the offense as 
 manslaughter. (16 Op. Atty. Gen., 578.) 
 
 It requires no argument to show that an 
 assault, of a character so serious as to result in 
 the death of the person assaulted, who was also 
 in the naval ser\dce, is an offense against; the 
 order and discipline of the Navy, especially 
 when among the enumerated offenses is found 
 that of "assault and battery." (16 Op. Atty. 
 Gen., 578.) 
 
 The Articles for the Government of the Navy 
 confer jurisdiction upon courts-martial of all 
 crimes committed by persons belonging to the 
 Navy which are not specified in the foregoing 
 articles; manslaughter falls within the general 
 denomination of a crime, and naval courts- 
 martial have jurisdiction to punish the offense 
 of manslaughter committed at sea on board of 
 ships of war. (U. S. v. Mackenzie, 30 Fed. 
 Cas. No. 18313.) 
 
 Scandalous conduct tending to the 
 destruction of good morals. — WTiere an 
 officer is charged wth scandalous conduct 
 tending to the destruction of good morals, it is 
 not important to inquire whether by the rules 
 that govern military courts the charge should be 
 
 considered as made under the concluding 
 words of the first clause of article 8, A. G. N., 
 or under article 22; for in either view it should, 
 imder the regulations of 1870, recognized and 
 sanctioned by Congress, be charged as ' 'scanda- 
 lous conduct' tending to the destruction of good 
 morals." (Smith r. Whitney, 116 U. S., 167, 
 183.) 
 
 For other cases, see notes to article 8, A. G. N . ; 
 see also article 43, A. G. N., as to charges and 
 specifications in general, and see note to article 
 14, A. G. N., under "Jurisdiction after discharge 
 from the service. ' ' 
 
 Conduct unbecoming an o£&cer and a 
 gentleman. — See article 43, A. G. N., as to 
 charges and specifications; and see notes to 
 article 14, A. G. N., under "Discretionary 
 punishment." 
 
 Unofiicerlike and ungentlemanly conduct is 
 one of the most indefinite and comprehensive 
 of all the offenses mentioned in the articles of 
 war. (7 0p. Atty. Gen., 601, 605.) 
 
 The court appreciates the high requirement 
 and purpose of the article of war pro\'iding that 
 an officer or cadet convicted of conduct unbe- 
 coming an officer and a gentleman shall be dis- 
 missed from the service; but confesses a lack 
 of knowledge of its definite limitations and also 
 admits a superior capacity in the military 
 court over the civil to deal with it. The same 
 comments and admission go to the general 
 article of war relating to offenses not specified. 
 (McRae v. Henkes, 273 Fed. Rep., 108, revers- 
 ing ex parte Henkes, 267 Fed. Rep., 276.) 
 
 It must be confessed that in the affairs of 
 civil life and under the rules and principles 
 of municipal law, what we ordinarily know 
 as fraud relates to the obtaining of a man's 
 money and not to the refusal to pay it back. It 
 is hard for the trained lawyer to conceive of an 
 indictment or declaration which should allege 
 that the defendant defrauded A or B by refusing 
 to return to him the money which he had 
 borrowed from him. Our legal training, the 
 legal habit of mind as it is termed, inclines us 
 to dissociate punishment from acts which the 
 law does not define as offenses. That it is 
 fraud to obtain a man's money by dishonest 
 representations, but not a fraud to keep it 
 afterwards by any amount of lying and deceit, 
 is a distinction of statutory tracing. Fletcher 
 V. U. S., 26 Ct. Cls., 541, 562; reversed on other 
 grounds, U. S. v. Fletcher, 148 U. S., 84.) 
 
 In military life there is a higher code, termed 
 honor, which holds its society to stricter ac- 
 countability; and it is not desirable that the 
 standard of the Army shall come down to the 
 requirements of a criminal code. (Fletcher 
 V. U. S., 26 Ct. Cls., 541, 562; reversed on other 
 grounds, U. S. v. Fletcher, 148 U. S., 84.) 
 
 It may or may not be dishonorable for a 
 retired oflicer not to pay his debts; but that 
 may depend upon how he incurred them, and 
 whether it is within his human possibilities to 
 pay them. In this case, the specifications 
 aver, in one instance, that the officer used his 
 honorable military position to borrow money 
 upon and assured his creditors of payment fi'om 
 the pay which the Government allows to officers 
 on the retired list. Certainly the Government 
 does not give oflicers the respectability of rank 
 and the support of retired pay to enable them to 
 
 998 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 22. 
 
 prey upon their fellow citizens. Remembering 
 the honorable military record of the claimant, 
 the court is averse to commenting upon the 
 details of the specifications, especially as it is 
 not at liberty to re\ie'W the e\idence, but at 
 the same time can not hold that refusing to pay 
 a debt may not be conduct unbecoming an 
 officer and a gentleman. (Fletcher v. U. S., 26 
 Ct. Cls., 541, 562; reversed on other grounds, 
 U. S. V. Fletcher, 148 U. S., 84. : 
 
 An officer of the Army was tried for conduct 
 unbecoming an officer and a gentleman; it was 
 objected that the court-martial had no juris- 
 diction, because the charges and specifications 
 stated no offense whatever wdtliin the rules 
 and articles of war. or known to the military 
 law and custom of the United States; the 
 specifications related to the incurring by the 
 accused of certain indebtedness; it was argued 
 that nonpayment of debts does not justify 
 con\dction of the charge: Held, that the 
 specifications went further than that, and con- 
 tained the element that the circumstances 
 under which the debts were contracted and not 
 paid were such as to render the officer ame- 
 nable to the charge; and as the specifications 
 were not objected to, and the court-martial 
 had jurisdiction, errors in its exercise, if any, 
 can not be reviewed by the ci\dl courts in a suit 
 by the accused officer for the pay of the office 
 from which he had been dismissed pursuant 
 to sentence of the court-martial. (U. S. v. 
 Fletcher, 148 U. S.. 84.) 
 
 "Of course, the failui'e to pay debts and the 
 circumstances under which the debts were 
 contracted, when their payment is postponed 
 or neglected, may constitute conduct unbe- 
 coming an officer. But here the debts have 
 been paid ; and they were not so great in amount 
 or so many as to indicate utter recklessness 
 when it is considered that Lieut. Burt is a 
 married man and, necessarily, had the expense 
 of a family upon him in addition to that at- 
 tendant upon his sea service. I am bound to 
 say that the specifications which were handed 
 to me as to the immorality involved in his re- 
 lation to debts seem to be. many of them, 
 strained, and I can not think that it is just to 
 eliminate Mm from the naval service for such 
 delinquency." (Action of President Taft, 
 case of Lieut. Charles P. Burt, U. S. N., re- 
 ported not morally qualified for promotion, 
 file 26260-1392:15, Jan. 2, 1912; see note to 
 sec. 1456, R. S.) 
 
 The charge of conduct unbecoming an of- 
 ficer and a gentleman specified in the articles 
 of war is not properly limited to only offenses 
 of the grossest and basest character, oi such a 
 natm-e as to render the guilty party a moral 
 and social outlaw. It should not be necessary 
 to prove that an individual is a moral mon- 
 strosity in order to demonstrate Ms unfitness 
 to be a trusted officer of the Army. (18 Op. 
 Atty. Gen., 113, 117.) 
 
 Undoubtedly, charges of mere indecorum 
 should not be made the basis of prosecutions 
 under the article of war specifying conduct 
 unbecoming an officer and a gentleman. The 
 punishment annexed to a con\iction under 
 that article clearly indicates that prosecutions 
 should be limited to the more serious classes 
 of offenses. But between the grossest offenses 
 
 of which an officer may be guilty and which 
 are not specially enumerated in the articles of 
 war, and those of a character simply prejudicial 
 to good order and military discipline, such as 
 are apparently contemplated by the 62d 
 article of war (corresponding to art. 22, A. G. 
 N.), there are intervening grades of offenses, 
 many of wMch are in every proper sense of the 
 words unbecoming an officer and a gentleman, 
 and the commission of wMch by any person is 
 a sure indication that he is unfitted to hold an 
 office of trust and honor in the military service. 
 (18 Op. Atty. Gen., 113, 118.) 
 
 Conduct imbecoming an officer and a gentle- 
 man is not the same offense as conspiring to 
 defraud the Umted States, or causing false 
 and fraudulent claims to be made against the 
 Umted States, although to be guilty of the 
 latter charges involves being gmlty of the 
 former. (Carter v. McClaugMy, 183 U. S., 
 305, 395.) 
 
 The same conduct constituting an offense 
 elsewhere provided for in the articles of war 
 may also warrant a finding of guilty by a court- 
 martial under the article providing that ' 'any 
 officer who shall be con\acted of conduct un- 
 becoming an officer and a gentleman shall be 
 dismissed from the ser\ice."' (In re Carter, 
 97 Fed. Rep., 496.) 
 
 It is not possible for an officer to do any act 
 pumshable by the known laws of the land, how- 
 ever foreign that act may be to Ms duties or 
 immediate relations as a soldier, which shall 
 not be cogmzable by court-martial . To commit 
 a crime of any sort is, to say the least of it, in 
 general, unofficerKke and ungentlemanly con- 
 duct. (6 Op. Atty. Gen., 413, 415.) 
 
 The plea of autrefois acquit, averring a for- 
 mer trial and acquittal for manslaughter in the 
 supreme court of a State, and that said charge 
 was sustainable only by the same evidence as 
 must be used to sustain the charge of unofficer- 
 like or ungentlemanlike conduct, is not a 
 bar to the proceedings before an Army court- 
 martial to punish the accused for the latter 
 offense. The two offenses are altogether dif- 
 ferent. (3 Op. Atty. Gen., 749.) 
 
 The fact that tM'ee specifications under the 
 charge of \dolating the 95th article of war (con- 
 duct unbecoming an officer and a gentleman) 
 were identical with those under the charge of 
 violating the 96th article (offenses not specified) 
 did not operate to put the accused twice in 
 jeopardy for the same offense. As a question 
 of pleading it is quite clear that the two charges 
 are not one and the same offense. It was neces- 
 sary to establish a fact under one charge not 
 required under the other; conviction could not 
 be had on the first charge unless it be proven 
 that the accused was an officer; _ no such proof 
 was needed under the general article. Further- 
 more, that was a question of procedure, not of 
 jurisdiction, wMch the court-martial having 
 obtained jurisdiction was competent to decide. 
 (McRae v. Henkes, 273 Fed. Rep., 108.) 
 
 ^Miere the court finds upon certain specifica- 
 tions that the accused was guilty of presenting 
 to the Secretary of War a wTitten indorsement 
 contaimng certain specific statements which 
 the accused knew to be false, and of making 
 such statements for the purpose and with the 
 intention of deceiving the Secretary of War, 
 
 999 
 
Sec. 1624, Art. 22. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 it should haA-e found him guilty of conduct un- 
 becoming an oliicer and a gentleman, as 
 charged, and not merely of conduct to the 
 prejudice of good order and military discipline. 
 Untruthful statements made by a high military 
 officer to the official head of the War Depart- 
 ment have not been regarded in the past as any 
 less of an offense than one unbecoming an officer 
 and a gentleman. (18 Op. Atty. Gen., 113; 
 see art. 8, A. G. N., first paragraph.) 
 
 Conduct to the prejudice of good order 
 and discipline. — See note above, under 
 "Embezzlement"- and see note to article 8, 
 A. G. N., under "Drunkenness"; see also note 
 below, under "Jurisdiction of courts-martial 
 concurrent •with civil courts." 
 
 The offense committed by an enlisted man of 
 the Army on guard duty at the United States 
 jail in the District of Columbia, in maliciously 
 and \nth intent to kill assaulting a civilian 
 prisoner confined in said jail, was clearly one to 
 the prejudice of good order and military dis- 
 cipline in violation of the 62d article of war. 
 Shooting with intent to kill is a civil crime, 
 but shooting by a soldier of the Army standing 
 guard over a prison with intent to kill a prisoner 
 confined therein is not only a crime against 
 society but an atrocious breach of military dis- 
 cipline, although the prisoner who was shot at 
 was not himself connected with the military 
 service. The offense was not simply an assault 
 \yiih intent to kill, but an assault by a soldier 
 on duty with intent to kill a prisoner confined 
 in a jail over which he was standing guard, such 
 shooting being in direct violation of orders 
 under which he was acting. (Ex parte Mason, 
 105 U.S., 696.) 
 
 WTien the act charged as * ' conduct to the prej- 
 udice of good order and military discipline ' ' ' 
 is actually a crime against society which is 
 punishable by imprisonment in the peniten- 
 tiary, an Army court-martial is authorized to 
 inflict that kind of punishment under the 97th 
 article of war providing that "no person in the 
 military service shall, under the sentence of a 
 court-martial, be punished by confinement in a 
 penitentiary, unless the offense of which he 
 may be convicted would, by some statute of the 
 United States, or by some statute of the State, 
 Territory, or District in which such offense may 
 be committed, or by the common law, as the 
 same exists in such State, Territory, or District, 
 subject such convict to such punishment." 
 The act done is a civil crime and the trial is for 
 that act; the proceedings are had in a court- 
 martial because the offender is personally 
 amenable to that jurisdiction and what he did 
 was not only criminal according to the laws of 
 the land but prejudicial to the good order and 
 discipline of the Army to which he belonged. 
 (Ex parte i^Iason, 105 U. S., 696, 700.) 
 
 Fraudulent enlistment. — See notes to sec- 
 tions 761, 1418-1420, Revised Statutes; and see 
 note above, under preamble to section 1624, 
 subheadings " Void enlistment" and "Voidable 
 enlistment"; and see article 19, A. G. N. 
 
 Where a minor under the required age did 
 nothing but attempt to enlist, receiving no pay 
 or allowances, he is not guilty of the offense of 
 fraudulent enlistment denounced by the 
 articles of war. (Hoskins v. Pell, 239 Fed. 
 Rep., 279.) 
 
 Whether a minor charged with fraudulent 
 enlistment is innocent of the charge made 
 against him, or whether he, a boy less than 
 17 years old, should be punished for an offense 
 possibly committed under impulses that were 
 patriotic, are matters for the exclusive con- 
 sideration and action of the court-martial. 
 (Ex parte Foley, 243 Fed. Rep., 470.) 
 
 The civil courts should not interfere by 
 habeas corpus to discharge a minor under 18 
 years of age who has been enlisted in the naval 
 service without the consent of his parents or 
 guardian if at the time of the presentation of the 
 petition for the writ the minor is under arrest 
 and held for trial by court-martial on a charge 
 of desertion or fraudulent enlistment or other 
 charge cognizable by a naval court. (Dilling- 
 ham V. Booker, 163 Fed. Rep., 696.) 
 
 The crime of fraudulent enlistment is exclu- 
 sively a military or naval offense, triable and 
 punishable only by comt-martial, and it has 
 been found necessary so to legislate in order to 
 maintain the discipline and efficiency of the 
 military and naval establishments of the Gov- 
 ernment. (Dillingham v. Booker, 163 Fed. 
 Rep., 696.) 
 
 A minor under 18 who fraudulently enlists in 
 the Navy is nevertheless both de facto and de 
 jure in the Na^^ until discharged therefrom by 
 operation of law; and while he is such a seaman 
 he is subject to the rules and regulations of the 
 Navy and liable to be tried and punished for 
 any infraction of the law relating thereto. 
 (Dillingham v. Booker, 163 Fed. Rep., 696. 
 But see Hoskins v. Pell, 239 Fed. Rep., 279, 
 holding that the enlistment of a minor below 
 the age at which he could legally be enlisted, 
 even with the consent of his parents or guardian, 
 was not merely voidable but void ab initio.) 
 
 Where a minor under 18 years of age who 
 enlisted without the consent of his parents was, 
 before they obtained his release on habeas corpus, 
 arrested by the military authorities for fraudu- 
 lent enlistment, the question whether he was so 
 arrested before or after the issue and ser\dce of 
 the writ is immaterial with respect to the right 
 of the military authorities to punish him for 
 Buch military offense; and the jurisdiction of the 
 military authorities could not be displaced by 
 the act of the court in issuing a writ of habeas 
 corpus. (Ex parte Foley, 243 Fed. Rep., 470.) 
 
 The fact that a person was enlisted in the 
 Navy before reaching the required age, and in 
 violation of the statute requiring consent of his 
 parents or guardian, does not render his enlist- 
 ment void; and he is subject to arrest and 
 punishment for desertion or other infraction of 
 the rules and regulations of the Navy, and can 
 not be discharged on writ of habeas corpus pend- 
 ing proceedings against him therefor. (Ex 
 parte Rock, 171 Fed. Rep., 240. Note.— 
 In this case the court considered the following 
 provision in the annual naval appropriation act 
 which had not been before the courts in prior 
 cases: "No part of this appropriation shall be 
 expended in recruiting seamen, ordinary sea- 
 men, or apprentice seamen, unless a certificate 
 of birth or written evidence other than his own 
 statement, satisfactory to the recruiting officer, 
 showing the applicant to be of the age required 
 by naval regulations, shall be presented with 
 the application for enlistment," which certi- 
 
 1000 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 22. 
 
 ficate or statement was not furnished by the 
 applicant in this case.) 
 
 Where a minor who falsely stated his age when 
 enlisting in the Army was arrested for fraudu- 
 lent enlistment in ^dolation of the articles of 
 war, after serA-ice of a writ of habeas corpus sued 
 out by his mother but before the hearing thereon, 
 held that he would not be taken from the 
 custody of the military' authorities. (U. S. v. 
 WilUford, 220 Fed. Rep., 291.) 
 
 The ci\il courts will not, on habeas corpus 
 brought by the parent of a minor oA'er 16 and 
 under 18 years of age to avoid his enlistment in 
 the National Guard while in the ser\'ice of the 
 United States, command his immediate sur- 
 render by the military authorities where by 
 reason of his enlistment he committed a military 
 offense; but will allow his retention by the 
 military authorities so that he may be punished 
 by the proper military tribunal for the military 
 offense. (Hoskins v. Dickerson, 239 Fed. Rep., 
 275.) 
 
 Jurisdiction of courts-martial concur- 
 rent with, civil courts.— An officer may be 
 tried by court-martial for the military relations 
 of an act, after ha\ing been tried by the ci^^.l 
 authorities of a state for the ci\il relations of 
 the same act. In such case the offender is 
 punishable both as a citizen, subject to the 
 municipal law of the place, and also as a soldier 
 or officer subject to the military law of _ the 
 United States. Such double accountability 
 to two different jurisdictions, and the different 
 and double punishments for the same act, 
 making two different offenses, is settled to be 
 lawful by the decisions of the Supreme Court 
 of the United States. (6 Op. Atty. Gen., 506, 
 following 6 Op. Atty. Gen., 413, and citing 
 Moore v. Illinois, 14 How., 20; Fox v. Ohio, 
 5 How., 434, 435; U. S. v. Marigold, 9 How., 
 569.) 
 
 The jm-isdiction of military' tribunals is not 
 exclusive in time of peace and in territoiy where 
 the supremacy of the United States is recog- 
 nized and the relations between the local 
 goA'ernment and the National Government 
 normal, and where the jurisdiction of the local 
 ci\'il courts is not disturbed. But when the 
 armies of the United States are in hostile 
 territory, and engaged in actual warfare, the 
 jurisidction of such tribunals over offenses by 
 persons in the militarj^ ser\-ice is exclusive; 
 and this applies to the condition which existed 
 in the Philippine Islands during the insurrec- 
 tion. (24 Op. Atty. Gen., 570, 574.) 
 
 \Miere a United States soldier killed a fellow 
 soldier during a military encampment, and on 
 being surrendered to the ci\il authorities of the 
 State was prosecuted for murder and acquitted, 
 such acquittal, though a final determination of 
 his innocence of murder and of each lesser of- 
 fense necessarily included therein, was no bar 
 to his subsequent military arrest and trial by 
 a general court-martial for "conduct to the prej- 
 udice of good order and military discipline" 
 in violation of the articles of war, though based 
 on the same act. (In re Stubbs, 133 Fed. 
 Rep., 1012.) 
 
 Although the act prohibited in the specifica- 
 tion of the charge upon which the soldier was 
 brought to trial before a court-martial was 
 
 identical with the act alleged in the information 
 
 for murder upon which he was acquitted by 
 the State court, the elements constituting the 
 offense charged are radically different. After 
 ha-vdng surrendered him to the civil authorities, 
 his military superiors could not lawfully deal 
 with him for murder, manslaughter, or a 
 criminal assault, considered as a crime against 
 society in general ; but it is equally true that 
 the civil court had no jurisdiction to adjudicate 
 any question with respect to the soldier's 
 conduct as a soldier. Although the same act 
 was specified, the gist of the offense charged was 
 unsoldierly conduct by a soldier, subversive 
 of military discipline. For that offense the 
 prisoner continued to be amenable to military 
 law notwithstanding the acquittal by the State 
 court. (In re Stubbs, 133 Fed. Rep., 1012.) 
 
 The surrender of the soldier to the civil 
 authorities did not have the effect to absolve 
 him from his obligation under the terms of his 
 enlistment; nor to divest his superior military 
 officers of their authority to proceed against 
 him for the military offense. (In re Stubbs, 
 133 Fed. Rep., 1012.) 
 
 It is well settled that an acquittal or convic- 
 tion in a State court is not a good defense in the 
 courts of the United States; but the rule is 
 different where both courts derive their power 
 fi'om the same sovereignty. (U. S. v. Block, 
 262 Fed. Rep., 205, holding that acquittal by 
 court-martial is bar to trial in Federal civil 
 court.) 
 
 An anny general court-martial may take 
 cognizance of all crimes not capital committed 
 against public law by an officer or soldier of the 
 Army, within the limits of the territorj'^ within 
 which he is senang; and while this jurisdic- 
 tion is not exclusive but only concurrent with 
 that of the ci\dl courts, if a court-martial first 
 acquires jurisdiction its judgment can not be 
 disregarded by the civil courts for mere error 
 or for any reason not affecting the jurisdiction 
 of the court rendering it. (Grafton v. U. S., 
 206 U. S., 333, 348, holdingthat acquittal of a 
 soldier by Army court-martial was a bar to his 
 trial by the courts of the Philippine Islands 
 for the same offense, though called by a differ- 
 ent name, both courts having derived their 
 jurisdiction from the same sovereignty.) 
 
 Any possible conflict as to jurisdiction 
 between civil and military courts can be ob- 
 viated, either by withholding from courts- 
 martial all authority to try officers or soldiers 
 for crimes prescribed by the civil power, 
 leaving the civil tribunals to try such offenses, 
 or by investing courts-martial with exclusive 
 jurisdiction to try' such officers and soldiers for 
 all crimes not capital. (Grafton v. U. S., 206 
 U. S., 333, 352.) 
 
 The 62d article of war (relating to offenses not 
 specified) does not vest nor purport to vest 
 exclusive jurisdiction in courts-martial; and 
 civil courts have concurrent jinisdiction over 
 all offenses committed by a military officer 
 which may be punished under the pro\isions 
 of that article. (Franklin v. U. S., 216 U. S., 
 559.) 
 
 The articles of war contain no direct and clear 
 expression of a purpose on the part of Con- 
 gress, conceding for the sake of the argument 
 that autlority exists under the Constitution to 
 do so, to bring about, as the mere result of a 
 
 1001 
 
Sec. 1624, Art. 24. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 Ships of war enjoy the full rights of exterri- 
 toriality in foreign ports and territorial waters. 
 (8 0p. Atty. Gen., 73.) 
 
 For other cases, see note to article 6, A. G. N., 
 as to jurisdiction of murder; note to Constitu- 
 tion, Article I, section 8, clause 14, under 
 "V. Jurisdiction of civil courts," and note to 
 fifth amendment, under "II. Protection 
 against double jeopardy"; see also note to arti- 
 cle 14, A. G. N., under "Jurisdiction of civil 
 authorities." 
 
 Piinishinent for violation of article 22. — 
 See note above, under "Embezzlement"; and 
 see note to article 14, A. G. N., under "Dis- 
 cretionary punishment"; see also notes to 
 articles 8 and 63, A. G. N. 
 
 declaration of war, the complete destruction of 
 State authority and the extraordinary extension 
 of military power which would be involved in 
 making the jurisdiction of Army courts-martial 
 exclusive of State authority in the case of 
 murder and other offenses committed by per- 
 sons in the military service. (Caldwell v. 
 Parker, 252 U. S., 376, 385.) 
 
 It can not be disputed that the effect of this 
 grant was to confer upon courts-martial, as to 
 offenses inherently military, an exclusive 
 authority to try and punish. In so far, how- 
 ever, as respects acts which were criminal under 
 the State law, but which became subject to 
 military authority because they could also be 
 treated as prejudicial to good order and military 
 discipline, a concurrent power necessarily 
 arose. (Caldwell v. Parker, 252 U. S., 376, 381.) 
 
 Art. 23. [Offenses committed on shore.] All offenses committed by persons 
 belonging to the Navy while on shore shall be punished in the same manner as 
 if they had been committed at sea. — (17 July, 1862, c. 204, s. 1, v. 12, p. 603, 
 art. 9.) 
 
 Art. 24. [Punishments by order of commander.] No commander of a vessel 
 shall inflict upon a commissioned or warrant officer any other punishment than 
 private reprimand, suspension from duty, arrest, or confinement, and such 
 suspension, arrest, or confinement shall not continue longer than ten days, 
 unless a further period is necessary to bring the offender to trial by a court- 
 martial; nor shall he infhct, or cause to be inflicted, upon any petty officer, or 
 person of inferior rating, or marine, for a single offense, or at any one time, any 
 other than one of the following punishments, namely: 
 
 First. Reduction of any rating estabhshed by himself. 
 
 Second, Confinement, with or \snthout irons, single or double, not exceeding 
 ten days, unless furtlier confinement be necessary, in the case of a prisoner to 
 be tried by court-martial. 
 
 Third. Solitary confinement, on bread and water, not exceeding five days. 
 
 Fourth. Solitary confinement not exceeding seven days. 
 
 Fifth. Deprivation of liberty on shore. 
 
 Sixth. Extra duties. 
 
 No other punishment shall be permitted on board of vessels belonging to the 
 Navy, except by sentence of a general or summary court-martial. All punish- 
 ments inflicted by the commander, or by his order, except reprimands, shall be 
 fully entered upon the ship's log. — (17 July, 1862, c. 204, s. 1, v. 12, p. 603, 
 art. 10. Wilkes v. Dinsman, 7 How., 89. Dmsman v. Wilkes, 12 How., 390.) 
 
 Deck courts for the punishment of minor of- 
 fenses were authorized by act of February 
 
 16, 1909 (35 Stat., 621), amended by acts 
 
 of Ausiust 29, 1916 (39 Stat., 586), and 
 
 October 6, 1917 (40 Stat., 393). 
 "Hereafter all officers of the Navy and Marine 
 
 Corps who are authorized to order either 
 
 general or summary courts-martial * * * 
 
 shall have the same authority to inflict 
 
 minor punishments as is conferred by law 
 
 upon the commander of a naval vessel." 
 
 (Act Aug. 29, 1916, 39 Stat., 586.) 
 "The use of irons, single or double, as a form 
 
 of punishment in the Navy of the United 
 
 States is hereby abolished, except for the 
 
 purposes of safe custody or when part of 
 the sentence imposed by a general court- 
 martial." (Act May 13, 1908, 35 Stat., 
 132.) 
 
 "The use of irons, single or double, is hereby 
 abolished, except for the purpose of safe 
 custody or when part of a sentence imposed 
 by a general court-martial." (Act Feb. 
 16, 1909, sec. 8, 35 Stat., 621.) 
 
 "When * * * empowered by the Sec- 
 retary of the Navy to order summary 
 courts-martial, the commanding officer of 
 a naval hospital or hospital ship shall be 
 empowered to * * * inflict the pun- 
 ishments which the commander of a naval 
 
 1002 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 24. 
 
 vessel is authorized by law to inflict, upon 
 all enlisted men of the naval service 
 attached thereto, whether for duty or as 
 patients." (Act Aug. 29, 1916, 39 Stat., 
 586.) 
 '■'When a force of marines is embarked on a 
 naval vessel, or vessels, as a separate 
 organization, not a part of the authorized 
 complement thereof, the authority and 
 powers of the officers of such separated 
 organization of marines shall be the same 
 as though such organization were serving 
 at a navy yard on shore, but nothing here- 
 in shall be construed as impairing the 
 paramount authority of the commanding 
 officer of any naval vessel over the vessel 
 under his command and all persons em- 
 barked thereon." (Act Aug. 29, 1916, 
 39 Stat., 586.) 
 Necessity of commander's power. — It is 
 a matter of most common information that it is 
 essential to the efficiency and discipline of the 
 Navy that a commanding officer should have 
 the right and the power, promptly, by arrest 
 and otherwise, to enforce obedience to orders 
 and fidelity to duty. To this end article 24, 
 A. G. N . , recognizes the right of such commander 
 to reprimand, suspend from duty, arrest, or 
 confine the delinquent inferior officer; and 
 recognizing such right puts limitations thereon. 
 That such a power in a connnanding officer is 
 essential is too plain for argument. (19 Op. 
 Atty. Gen., 472, 474.) 
 
 Civil liability for abuse of power.— The 
 almost despotic power \\dth which the law 
 clothes the commanding officer for the time 
 being, and which is absolutely necessary for 
 the safety and efficiency of the ship, make it 
 more especially liis duty not to abuse it. And 
 if, from maUce to an individual, or vindictive 
 feeling, or a disposition to oppress, he inflicts 
 punishment beyond that which in his sober 
 judgment he would have thought necessary, he 
 is lialile to an action for damages. If the 
 pimishment inflicted was forbidden by law or 
 beyond the power which the law confided to 
 him, he would be liable whatever were his 
 motives. (Dinsman v. Wilkes, 12 How., 390, 
 403.) 
 
 It is not to be lost sight of, that while the com- 
 manding officer is to be protected under mere 
 errors of judgment in the discharge of his 
 duties, yet he is not to be shielded from respon- 
 sibility if he acts out of his authority or juris- 
 diction, or inflicts private injury, either from 
 malice, cruelty, or any species of oppression 
 founded on considerations independent of 
 public ends. The hiunblest seaman or marine 
 is to be sheltered under the aegis of the law from 
 any real wrong, as well as tlie highest in office. 
 (Wilkes V. Dinsman, 7 How., 89, 123, 129.) 
 
 An action by a marine against his com- 
 manding officer for punishment inflicted upon 
 him for refusing to do duty in a foreign port, 
 upon the ground that the time of his enlistment 
 had expired and that he was entitled to his 
 discharge, is a case of much delicacy and im- 
 portance as regards our naval service. For it 
 is essential to its security and efficiency that the 
 authority and command confided to the officer, 
 when it has been exercised from proper motives, 
 should be firmly supported in the courts of 
 
 justice as well as on shipboard. But at the same 
 time it must be rememl^ered that the nation 
 would be equally dishonored if it permitted 
 the humblest individual in its service to be 
 oppressed and injured by his commanding offi- 
 cer from malice or ill will, or the wantonness 
 of power, without gi^■ing him redress in the 
 courts of justice. (Dinsman r. Wilkes, 12 
 How., 390, 402.) 
 
 Discretion of commander.— The, com- 
 manding officer, in causing punishments to 
 be infficted upon a seaman for disobedience of 
 orders, was acting as a public officer invested 
 with certain discretionary powers, and can not 
 be made answerable by civil suit for any 
 injury when acting within the scope of his au- 
 thority and not influenced by malice, con-up- 
 tion, or cruelty. His position is quasi judicial. 
 In order to hold him civilly liable for damages, 
 it is not enough to show that he committed an 
 error in judgment, but it must have been a 
 willful and malicious error. (Wilkes v. Dins- 
 man, 7 How., 89, 123, 129.) 
 
 The commanding officer is the judge of the 
 degi'ee of punishment necessary to suppress a 
 spirit of disobedience and insubordination; 
 and he is not liable to an action for a mere error 
 in judgment, even if the jury suppose that 
 milder measures would have accomplished his 
 object. But at the same time he is bound 
 never to inflict any severer punishment than 
 he conscientiously believes to be necessary to 
 maintain discipline and due subordination in 
 his ships. (Dinsman v. Wilkes, 12 How._, 390.) 
 
 As regards the degree of punishment, it was 
 the duty of the commanding officer to maintain 
 proper discipline and order among the officers 
 and men under his command, and if a spirit 
 of disobedience and insubordination mani- 
 fested itself in the squadron, he was bound to 
 suppress it ; and he might use severe measures 
 for that purpose, if he deemed such measures 
 necessary. And if in his judgment the con- 
 tinued refusal of the plaintiff to do duty made 
 it necessary to confine him on shore rather than 
 on shipboard, in order to reduce him to obe- 
 dience, or necessary to deter others from a like 
 offense, he was justified in so doing; and 
 while he acted honestly and from a sense of 
 duty, and with a single idea to the welfare 
 of the service in which he was engaged, the law 
 protects him. He is not liable to an action for 
 a mere error in judgment. (Dinsman v. Wilkes, 
 12 How., 390, 403.) 
 
 Repeated disobedience of ordets. — By 
 the Articles for the Government of the Navy 
 the commanding officer is authorized to cause 
 certain punishments to be infficted upon an 
 enlisted man for scandalous conduct without a 
 court-martial. Every successive disobedience 
 of orders is a fresh offense and subjects the 
 offender to additional punishment. It has 
 been settled in a penal prosecution that a like 
 act when prohibited, if distinctly repeated even 
 on the same day, constitutes a second offense 
 and incurs an additional penalty. (Wilkes r. 
 Dinsman, 7 How., 89, 128.) 
 
 The commanding officer has not only a right 
 to cause corporal punishment to be inflicted but 
 to resort to any reasonable measures necessary 
 to insure submission. He had, therefore, a right 
 to imprison the refractory party on shore, if 
 
 54641°— 22- 
 
 -64 
 
 1003 
 
Sec. 1624, Art. 24. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 done without malice. (Wilkes v. Dinsman, 
 7 How., 89; see art. 49, A. G. N., as to prohibited 
 punishments.) 
 
 Suppression of mutiny. — See note to article 
 6, A. G.N. 
 
 Commander Alexander Slidell Mackenzie, 
 U. S. N., commanding the U. S. Brig Sorners, 
 was tried by court-martial and acquitted of the 
 charge of murder, three specifications, alleging 
 that he executed by hanging, "without form of 
 law," Philip Spencer, acting midshipman; 
 Samuel Cromwell, boatswain's mate; and Elisha 
 Small, seaman, on board the said brig Sorners, 
 December 1, 1842. v( 'ourt-Martial Rec. No. 844, 
 vol. 46, 1843, Navy Dept.;) 
 
 The opinion of the court of inquiry in the 
 same case was as follows: 
 
 "The court are therefore of opinion: That, a 
 mutiny had been organized on board the United 
 States brig Sorners, to murder the officers, and 
 take possession of the brig. 
 
 "That Midshipman Philip Spencer, Boat- 
 swain's Mate Samuel Cromwell, and Seaman 
 Elisha Small were concerned in, and guilty of, 
 such mutiny. 
 
 "That, had not the execution taken place, an 
 attempt would ha^•e been made to release the 
 prisoners, murder the officers, and take com- 
 mand of the brig. 
 
 "That such attempt, had it been made in the 
 night, or during a squall, would, in the judg- 
 ment of the court, from the number and charac- 
 ter of the crew, the small size of the brig, and 
 the daily decreasing physical strength of the 
 officers, occasioned by almost constant watch- 
 ing, and broken slumbers, have been successful. 
 
 "That Commander Mackenzie, under the 
 circumstances, was not bound to risk the safety 
 of his vessel, and jeopard the lives of the young 
 officers and the loyal of his crew, in order to 
 secure to the guilty the forms of trial, and that 
 the immediate execution of the prisoners was 
 demanded by duty, and justified by necessity. 
 
 "The court are further of opinion: That 
 throughout all these painful occurrences, so 
 well calculated to disturb the judgment, and 
 try the energj^, of the bravest and most ex- 
 perienced officer, the conduct of Commander 
 Mackenzie and his officers was prudent, calm, 
 and firm, and that he, and they, honorably per- 
 formed their duty to the service and their coun- 
 try (Couit-Martial Rec. No. 844, vol. 46, 1843, 
 Navy Dept.) 
 
 Reduction in rating.^The act Of March 2, 
 1855, establishing sunmiary courts-martial in 
 the Navy, did not interfere with the power of 
 the commander of a vessel, as it existed prior 
 to that act, to reduce seamen to inferior rate for 
 incompetency. (10 Op. Atty. Gen., 168.) 
 
 The Articles for the Government of the Na\'y 
 (Apr. 23, 1800, 2 Stat., 49, art. 30) forbade a 
 commanding officer who had received any petty 
 officer or man "turned over from any other 
 vessel " td rate him in a lower or worse station 
 than that in which he formerly served. That 
 prohibition placed a limit on the authority of 
 commanding officers to punish their seamen, 
 but was a recognition by ( ongress of the general 
 discretion of the commander to disrate petty 
 officers and seamen not protected by the legis- 
 lative prohibition referred to. (10 Op. Attv. 
 Gen., 168.) 
 
 A seaman on board a vessel of the Navy, having 
 received his rating iinder a former commander 
 of that vessel, the actual commander, upon a 
 report to him of the man's incompetency to 
 perform the duties of a seaman, did not consider 
 himself authorized to disrate him, but repre- 
 sented the case to the department, and by the 
 authority of the department the man was reduced 
 from the rate of seaman to that of ordinary sea- 
 man. It was contended in the latter's behalf 
 that the law creating summary courts-martial 
 and giving them authority to disrate as a punish- 
 ment was intended to repeal and exclude any 
 other authority to disrate. The conclusion of 
 the Attorney General was as stated above. (10 
 Op. Atty. Gen., 168.) 
 
 See article 30, A. G. N., as to punishments by 
 summary courts-martial, and article 31, A. G. 
 N., as to disrating for incompetency. 
 
 Reprimand. — See note to section 417, Re- 
 \'ised Statutes, under "Power of Secretar}?- to 
 reprimand subordinates. ' ' 
 
 A pri^'ate reprimand administered by the 
 commander in chief of a fleet to a naval officer 
 in accordance with the recommendation of a 
 court of inquiry, as a punishment for an offense 
 such as neglect of duty, is no bar to a subse- 
 quent trial of such officer by a general court- 
 martial for the same offense. (25 Op. Attv. 
 Gen., 623.) 
 
 The fact that article 24, A. G. N., pro forma 
 recognizes a private reprimand as a "punish- 
 ment" does not affect the conclusion that a 
 proceeding before a court of inquiry which 
 recommended that a private reprimand be ad- 
 ministered to an officer by the commander in 
 chief of the fleet did not constitute a ' ' trial " and 
 did not expose the officer to the peril of punish- 
 ment so as to bar subsequent trial of the officer 
 by court-martial . Said reprimand was not real 
 punishment. (25 Op. Atty. Gen., 623.) 
 
 The jeopardy of the law means a real peril, 
 originally of life or limb, and always of sub- 
 stantial punishment or penalty. There must be 
 a trial upon an indictment for an offense, or 
 upon some equivalent charge and presentment, 
 as by court-martial, submitting a definite issue 
 and involving conviction or acquittal. (25 
 Op. Atty. Gen., 623.) 
 
 Disapproval of the conduct and censure by 
 the Secretary of the Navy of a subordinate 
 officer for misconduct will not prevent a court- 
 martial proceeding upon the same charge. (28 
 Op. Atty. Gen., 622.) 
 
 The Secretary of the Navy may, \\ithin his 
 discretion, when he believes it for the good of 
 the service, send communications to subordi- 
 nate officers which may be in the nature of a 
 reprimand. This right is necessarily vested in 
 him as the chief officer of that department; but 
 such communications can not be regarded in 
 the nature of a punishment as defined in the 
 regulations. Regardless of whether a proceed- 
 ing under the Navy Regulations constitutes a 
 jeopardy -within the meaning of the fifth amend- 
 ment to the Constitution, it is apparent that the 
 action of the Secretary of the Navy in \\Titing a 
 letter to an officer censuring him for misconduct 
 can not be regarded as a jeopardy, there having 
 been nothing more than a private investigation 
 of the matter by the commandant of the navy 
 yard, and a report thereon to the Secretary of 
 
 1004 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 26. 
 
 the Navy. (28 Op. Atty. Gen., 622. See note 
 to Constitution, fifth amendment; and note to 
 article 43, A. G. N.) 
 
 Arrest not har to subsequent trial. — A 
 plea iDefore a court-martial of a former arrest and 
 discharge is bad ; a former trial only is a defense. 
 A mere arrest, even in cases punishable in life 
 or limb, is not considered as constituting the 
 jeopardy intended by the fifth amendment to 
 the Constitution. To give the accused the 
 benefit of the common-law maxim from which 
 is derived our constitutional amendment, it is 
 necessary that a man shall have been actually 
 acquitted or convicted on a former trial, and the 
 record of this fact must be produced. (1 Op. 
 Atty. Gen., 294.) 
 
 It is not free from legal censure to bring an 
 officer to trial by court-martial after the charge 
 against him has been knowingly passed over, 
 although the officer in such case can not success- 
 fully plead in bar of trial the fact that he had 
 been pre\iously arrested for the same offense. 
 (1 Op. Atty. Gen., 294.) 
 
 A naval court-martial loses jui'isdiction to try 
 for an offense committed by an enrolled mem- 
 ber of the Naval Reserve Force during active 
 service in the Navy, by discharging the offender 
 from arrest ^^■ithout charges having been pre- 
 ferred against him, and by his subsequent 
 release from active duty. {JJ. S. v. Warden or 
 Keeper of Naval Prison, 265 Fed. Rep., 787; 
 see note to preamble to section 1624 as to juiis- 
 diction over Naval Reserve Force.) 
 
 An officer was placed under arrest on his 
 vessel for drunkenness and neglect of duty. 
 Later, on the same day, he was, by order of the 
 rear admiral, restored to duty to await an 
 opportunity to investigate the case. Subse- 
 quently he was placed under arrest for trial, and 
 served with copy of charges and specifications, 
 and a court-martial was convened. The accused 
 proceeded to trial without objection; subse- 
 quently, he claimed the salary of his office on 
 
 the ground that he was illegally dismissed by 
 sentence of said court, as his first arrest was an 
 expiation of the offense and a bar to trial pur- 
 suant to existing regulations of the Navy: Held, 
 that his first arrest and temporary confinement 
 were not intended as a punishment, but as a 
 reasonable precaution for maintenance of good 
 order and discipline aboard, and did not bar 
 his trial, notwithstanding the existing regula- 
 tions which pro\T-ded that the arrest and 
 restoration to duty of a person in the Navy, for 
 an offense, shall be a bar to further proceedings 
 against him for that offense. (Bishop v. U. S., 
 197 U. S., 334; 38 Ct. Cls., 473.) 
 
 See note to article 43, A. G. N., as to arrest 
 for trial. 
 
 Scandalous conduct. — See note to article 
 8, A. G. N. 
 
 Other punishments on naval vessels. — 
 See note to Constitution, Article I, section 8, 
 clause 14, imder "IV. Jui'isdiction of courts- 
 martial," subheading, "Courts-martial other 
 than naval can not convene on vessels of regu- 
 lar Navy." 
 
 Under this article it was held that naval 
 mihtia officers could not impose pvmishmenta 
 on men belonging to their organization, while 
 cruising on board a vessel of the regular Navy, 
 nor could naval militia officers convene Staite 
 courts-martial on such vessels. (File 3973-107, 
 Feb. 16, 1915). Thereafter, by act of August 
 29, 1916 (39 Stat., 598), naval militia courts- 
 martial were authorized to convene on board 
 naval vessels; said enactment, however, was 
 repealed by naval appropriation act of July 1, 
 1918 (40 Stat., 708), which latter act repealed all 
 laws relating to the Naval Militia. 
 
 See note to Constitution, Article I, section 8, 
 clause 16, as to authority of commanding officer 
 of a naval vessel over members of the Naval 
 Militia participating ^^ith the Regular Navy in 
 cruises for the purpose of training and instruc- 
 tion. 
 
 Art. 25. [Punishment by officer temporarily commanding.] No officer 
 who may command by accident, or in the absence of the commandmg officer,, 
 except when such commanding officer is absent for a time by leave, shall inffict 
 any other punishment than con&iement. — (23 Apr., 1800, c. 33, s. 1, v. 2, p. 
 49, art. 30.) 
 
 Art. 26. [Summary courts-martial ; convening authority.] Summary courts- 
 martial may be ordered upon petty officers and persons of inferior ratmgs, by 
 tlie commander of any vessel, or by the commandant of any navy-yard, naval 
 station, or marine barracks to which they belong, for the trial of offenses whicli 
 such officer may deem deserving of greater punishment than such conmaander 
 or commandant is authorized to inflict, but not sufficient to require trial by a 
 general court-martial. — (2 Mar., 1855, c. 136, s. 4, v. 10, p. 627. 15 July, 1870, 
 c. 295, s. 14, V. 16, p. .334.) 
 
 By act of August 29, 1916 (39 Stat., 586), it was 
 provided that "summary courts-martial 
 may be ordered upon enlisted men in the 
 naval ser\'ice under his command by the 
 commanding officer of any brigade, regi- 
 ment, or separate or detached battalion-, or 
 other separate or detached command, and, 
 when empowered by the Secretary of the 
 
 Navy, by the commanding officer or officer 
 in charge of any command not specifically 
 mentioned in the foregoing: Provide}, 
 That when so empowered by the Secre- 
 tary of the Na^'y to order summarv courts- 
 martial, the commanding officer ol a naval 
 hospital or hospital ship shall be empow- 
 ered to order such courts * 
 
 * " 
 
 1005 
 
Sec. 1624, Art. 30. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 "Hereafter all officers of the Navy and Marine 
 Corps who are antliorized to order either 
 general or summary courts-martial may 
 order deck courts upon enlisted men 
 under their command * * * when so 
 empowered by the Secretary of the Navy 
 to order summary courts-martial, the com- 
 manding: officer of a naval hospital or hos- 
 pital sliip shall be empowered to order 
 * * * deck courts * * * upon all 
 
 enlisted men of the naval service attached 
 thereto, whether for duty or as patients." 
 (Act Aug. 29, 191fi, 39 Stat., 586. Deck 
 courts were created by act Feb. 16, 1909, 
 35 Stat., 621, amended by acts Aug. 29, 
 1916, 39 Stat., 586, and Oct. 6, 1917, 40 
 Stat., 393.) 
 See note to article 38, A. G. N., as to convening 
 of general courts-martial. 
 
 Department in time of war or emergency 
 as part of the naval forces of the United 
 States. (Act Oct. 6, 1917, 40 Stat., 393.) 
 See note to article 39, A. G. N., as to constitu- 
 tion of general courts-martial. 
 
 Art. 27. [Constitution of summary courts-martial.] A summary court- 
 martial shall consist of three officers not below the rank of ensign, as members, 
 and of a recorder. The commander of a ship may order any officer under his 
 command to act as such recorder. — (2 Mar., 1855, c. 136, s. 6, v. 10, p. 628.) 
 
 Commissioned officers of the Naval Reserve 
 Force. Marine Corps Reserve, Coast Guard, 
 Lighthouse Service, Coast and Geodetic 
 Survey, and Public Health Service are 
 empowered to serve on naval courts-mar- 
 tial when actively serving under the Navy 
 
 Art. 28. [Oaths of members and recorder.] Before proceeding to trial the 
 members of a summary court-martial shall take the following oath or affirma- 
 tion, which shall be administered by the recorder: "I, A B, do swear (or affirm) 
 that I will well and truly try, without prejudice or partiaUty, the case now de- 
 pending, according to the evidence which shall be adduced, the laws for the 
 government of the Navy, and my own conscience." After which the recorder 
 of the court shall take the following oath or affirmation, which shall be admin- 
 istered by the senior member of the court: ''I, A B, do swear (or affirm) that I 
 will keep a true record of the evidence which shall be given before this court 
 and of the proceedings thereof." — (2 Mar, 1855, c. 136, s. 5, v. 10, p. 628.) 
 
 See note to article 40, A. G. N., as to oaths of general courts-martial. 
 
 Art. 29. [Testimony before summary courts-martial.] All testimony before 
 a summary court-martial shall be given orally, upon oath or affirmation, 
 administered by the senior member of the court. — (2 Mar., 1855, c. 136, s. 7, 
 V. 10, p. 628.) 
 
 The use of depositions before naval courts was 
 authorized by act of February 16, 1909, 
 section 16 (35 Stat., 622). 
 
 See note to article 42, A. G. N., as to evidence 
 before general courts-martial. 
 
 Art. 30. [Punishments by summary courts.] Summary courts-martial 
 may sentence petty officers and persons of inferior ratings to any one of the 
 following punishments, namely: 
 
 First. Discharge from the service with bad conduct discharge; but the 
 sentence shall not be carried into effect in a foreign country. 
 
 Second. Solitary confinement, not exceeding thirty days, in irons, single 
 or double, on bread and water, or on diminished rations. 
 
 Third. Solitary confinement in irons, single or double, not exceeding 
 thirty days. 
 
 Fourth. Solitaiy confinement not exceeding thirty days. 
 
 Fifth. Confinement not exceeding two months. 
 
 Sixth. Reduction to next inferior rating. 
 
 Seventh. Deprivation of hberty on shore on foreign station. 
 
 1006 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 32. 
 
 Eighth. Extra poHce duties, and loss of pay, not to exceed three months, 
 may be added to any of the above-mentioned punisliments. (2 Mar., 1855, c. 
 136, s. 7, V. 10, p. 628.) 
 
 "The use of irons, single or double, as a form of 
 
 Eunishment in the Navy of the United 
 tates is hereby abolished, except for the 
 purposes of safe custody or -when part of 
 the sentence imposed by a general court- 
 martial." (Act May 13, 1908, 35 Stat., 
 132.) 
 "The use of irons, single or double, is hereby 
 abolished, except for the purpose of safe 
 custody or when part of a sentence imposed 
 by a general court-martial." (Act Feb. 
 16, 1909, sec. 8, 35 Stat., 621.) 
 "The courts authorized to impose the punish- 
 ments prescribed by article thirty of the 
 Articles for the Government of the Navy 
 may adjudge either a part or the whole, 
 as may be appropriate, of any one of the 
 punishments therein enumerated." (Act 
 Feb. 16, 1909, .sec. 8, 35 Stat., 621.) 
 Reduction in rating. — See notes to articles 
 24and31, A. G. N. 
 
 The law of March 2, 1855, creating summary 
 courts-martial, included among the punish- 
 ments which they might inflict, "reduction to 
 next inferior rating." The object of that act 
 was to provide for the punishment of petty 
 
 offenders, and the reduction in rating therein 
 mentioned is imposed as a penalty. It had no 
 application whatever to seamen who were only 
 incompetent, from physical or other causes, to 
 perform the duties of their grades, but who were 
 not offenders. Such persons could not be re- 
 duced to an inferior rating under the pro^ision3 
 of said act, nor was there any other law provid- 
 ing for their reduction by sentence of a court- 
 martial. (10 Op. Atty. Gen., 168.) 
 
 Courts-martial sit for the trial and punish- 
 ment of crimes of greater or less magnitude ; and 
 mere incompetency is not of itself a crime. 
 Their sentence of reduction to an inferior grade 
 is imposed as a punishment, but such reduction 
 by a commanding officer for incompetency is 
 not a punishment. A reduction in grade on 
 the ground of incompetency is at worst a mis- 
 fortune, importing no reflection on the character 
 of the person reduced, and does not require a 
 formal trial. (10 Op. Atty. Gen., 168.) 
 
 (The opinion of the Attorney General above 
 noted was rendered to the Secretary of the 
 Navy, January 16, 1862. The pro\dsion now 
 embodied in article 31, A. G. N., as to disrating 
 for incompetency, was enacted July 17, 1862.) 
 
 Art. 31. [Disrating for incompetency.] A summary court-martial may 
 disrate any rated person for incompetency. — (17 July, 1862, c. 204, s. 1, art. 
 10, V. 12, p. 603.) 
 
 Disrating not a punishment. — See note 
 to article 30, A. G. N., under "Reduction in 
 rating"; see also note to article 24, A. G. N., 
 under "Reduction in rating." 
 
 Authority of commanding ofla.cer. — See 
 note to article 24, A. G. N. 
 
 If the appointments under which the men are 
 serving are of a permanent nature, commanding 
 officers of the Navy, who did not establish the 
 ratings, have no authority to disrate them, 
 either as punishment for offenses or for incom- 
 petency. Such men may be disrated by 
 sentence of a general or summary court-martial 
 or deck court as a punishment, or in accordance 
 ■nith article 31, A. G. N., by summary court- 
 martial for incompetency. If they are serving 
 under acting appointments, they can be dis- 
 rated by any commanding officer of the Navy 
 under whom they may be serving, for incom- 
 
 petency, but not as punishment for an offense. 
 They may be disrated as a punishment in the 
 same manner as though holding permanent ap- 
 pointments. (File 3973-190, June 4, 1917, as 
 to authority of commanding officers of the Navy 
 to disrate members of the National Naval 
 Volunteers called into active ser\dce and 
 subject to the laws and regulations governing 
 the Navy.) 
 
 Article 24, A. G. N., authorizes commanding 
 officers to punish a rated man by reduction in 
 rank only if the rating was established by the 
 commanding officer who inflicts the punish- 
 ment; but any commanding officer may disrate 
 a man holding xmder an acting appointment, 
 for incompetency, whether the rating was 
 established by himself or by another com- 
 manding officer. (File 7657-249; see also file 
 3973-190, June 4, 1917.) 
 
 Art. 32. [Execution of summary court sentence.] No sentence of a sum- 
 mary court-martial shall be carried into execution until the proceedings and 
 sentence have been approved by the officer ordering the court and by the 
 commander-in-chief, or, in his absence, by the senior officer present. And 
 no sentence of such court which involves loss of pay shall be carried into execu- 
 tion until the proceedings and sentence have been approved by the Secretary 
 of the Navy.— (2 Mar., 1855, c. 136, s. 8, v. 10, p. 628. 2 Mar., 1867, c. 174, 
 s. 5, V. 14, p. 516.) 
 
 "That the Secretary of the Na-\y may set aside order or by that of any officer of the Navy 
 
 the proceedings or remit or mitigate, in or Marine Corps." (Act Feb. 16, 1909, 
 
 whole or in part, the sentence imposed by sec. 9, 35 Stat., 621.) 
 any naval court-martial convened by his 
 
 1007 
 
Sec. 1624, Art. 32. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 "That all sentences of summary courts-mar- 
 tial may be carried into effect upon the 
 approval of the senior officer present 
 * * *." (Act Feb. 16, 1909, sec. 17, 
 35 Stat., 623.) 
 "No sentence of a summary court-martial shall 
 be carried into execution until the pro- 
 ceedings and sentence have been approved 
 by the officer ordering the court, or his 
 successor in office, and by his immediate 
 smierior in command: Prornkd, That if the 
 offi(^r ordering the court, or his successor 
 in office, be the senior officer present, such 
 sentence may be carried into execution 
 upon his approval thereof. ' ' (Act Aug. 29, 
 1916, 39 Stat., 586.) 
 The Judge Advocate General of the Navy 
 "shall, under the direction of the Secretary 
 of the Navy, receive, revise, and have 
 recorded the proceedings of all courts- 
 martial * * * in the naval service." 
 (Act June 8, 1880, 21 Stat., 164.) 
 Power of the Secretary of the Navy. — 
 The act of March 2, 1867 (embodied in art. 32, 
 A. G. N.), gave the Secretarv of the Navy power 
 to approve or disapprove that part of any sen- 
 tence of a summ ary court-martial which involved 
 loss of pay. The' act of Februarv^ 16, 1909, pur- 
 ports to enlarge his power still further, l)y author- 
 izinig him to set aside the proceedings, or remit or 
 mitigate, in whole or in part, the sentence im- 
 posed by any naval court-martial. Under the 
 act of 1867 his power of re^dew was very limited, 
 being confined to sentences invohdng loss of 
 pay, while under the act of 1909 his power is 
 extended to all sentences. (U. S. ex rel, 
 Harris v. Daniels, McDonald, et al., IJ. S. 
 Circuit Court of Appeals, Second Circuit, Jan. 
 6, 1922, 279 Fed. Rep. 844. 
 
 Previously to the act of Februaiy 16, 1909, 
 sentences of summary courts-martial under 
 section 1624, Revised' Statutes, could not be 
 carried into execution, if loss of pay was in- 
 volved, until their proceedings in each instance 
 had been approved by the Secretary of the 
 Navy.^ As many courts were held on ships at 
 long distances fi-om the United States, the de- 
 lay of months in the execution of the sentence 
 imposed proved very vexatious and subverted 
 the whole object of a summary court, that of 
 prompt and summary punishment for minor 
 offenses. Hence the desirability of section 17 
 of the act of 1909, allo^nng the sentences to be 
 carried into effect upon the approval of the 
 senior officer present at the trial. After the 
 enactment of section 17 of that act the dis- 
 tinction between sentences of summary courts- 
 martial which involved loss of pay and those 
 which did not ceased to exist, so that both 
 classes of sentences could be carried into execu- 
 tion without awaiting the approval of the Secre- 
 tary of the Navy. All sentences of such courts- 
 martial may be carried into effect upon the 
 approval of the senior officer present. (U. S. 
 ex rel. Harris v. Daniels, McDonald, et al., 
 U. S. Circuit Court of Appeals, Second Circuit, 
 Jan. 6, 1922, 279 Fed. Rep. 844. 
 _ There is an apparent conflict between sec- 
 tions 9 and 17 of the act approved February 16, 
 1909 (above quoted); but it is not one in 
 reaUty. In view of section 9, it does not seem 
 that sentences imposed by any naval courts- 
 
 martial can be regarded as final imtil the 
 Secretary of the Navy has acted. The sen- 
 tence of every summary court-martial by 
 section 9 is made conditional, being sub- 
 ject to the final action of the Secretary 
 of the Navy. (U. S. ex rel. Harris v. Daniels, 
 McDonald, et al., U. S. Circuit Court of 
 Appeals, Second Circuit, Jan. 6, 1922, 279 
 Fed. Rep. 844. 
 
 The situation is analogous to that of a man 
 convicted and sentenced to imprisonment for 
 a term of years. The sentence may have been 
 carried into effect, and the man actually im- 
 prisoned under it; but if the appellate court 
 decides the conviction was illegal and sets the 
 proceedings aside because the trial court had 
 no jurisdiction to try him on the indictment, 
 Ms original status is restored. (U. S. ex rel. 
 Harris v. Daniels, McDonald, et al., U. S. 
 Circuit Court of Appeals, Second Circuit, Jan. 
 6, 1922, Navy Dept. file No. 26251-25651:13.) 
 
 Under section 17 of the act of 1909, the sen- 
 tence may be carried into effect upon the 
 approval of the senior officer present, as therein 
 provided. But when so carried into effect, 
 if it is thereafter set aside by the Secretary of 
 the Navy, the status of an enlisted man whose 
 discharge was only conditional is thereby 
 restored and continues as it was before the 
 sentence was imposed. (U. S. ex rel. Harris v. 
 Daniels, McDonald, et al., U. S. Circuit Court 
 of Appeals, Second Cii-cuit, Jan. 6, 1922, 279 
 Fed. Rep. 844. 
 
 Discharge set aside as illegal.— An en- 
 listed man was discharged from the Navy pur- 
 suant to the sentence of a summary court- 
 martial duly convened and approved by the 
 convening authority and immediate superior 
 in command; subsequently, the proceedings, 
 findings, and sentence were disappro^'ed by the 
 Secretary of the Navy on the ground that the 
 specification failed to state an offense, and the 
 accused was ordered to return and resume his 
 former status in the Navy, which he did under 
 protest and surrendered his discharge to the 
 naval authorities. After performing duty for 
 several weeks, he left his station, returned home, 
 and after an absence of more than two months 
 surrendered himself to the naval authorities for 
 the piirpose of having his status adjudicated. 
 He was immediately placed in custody and his 
 trial by general court-martial ordered for un- 
 authorized absence, copy of the charge was 
 served upon him, and he was placed under 
 arrest for trial. While awaiting trial upon this 
 charge, he was ordered released from naval 
 authority by habeas corpus proceedings; on 
 appeal, held that as the Secretary of the Navy 
 found in this case that the Naval summary 
 court-martial which tried the accused was 
 without jurisdiction because he was not legally 
 charged Avith the commission of an offense, and 
 set aside the proceedings, the sentence became a 
 nullity; and it follows that the discharge of the 
 accused from the service pursuant to such sen- 
 tence was a nullity ab initio. The order of the 
 court below directing his discharge from the 
 naval custody and adjudging that the naval 
 authorities are without jurisdiction to try him 
 for any offense committed since the date of his 
 supposed discharge, reversed. (U. S. ex rel. 
 Harris v. Daniels, McDonald, et al., U. S. 
 
 1008 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 34. 
 
 Circuit Court of Appeals, Second Circuit, Jan. 
 6, 1922, 279 Fed. Rep. 844. 
 
 If the proceedings of the court-martial were 
 declared by competent authority to be void, 
 and its sentence set aside as a nullity, on the 
 ground that he had been tried on a specification 
 which failed to state an offense against him, it 
 needs no argument to establish the fact that his 
 status as an enlisted man was not changed in 
 contemplation of law in any particular by reason 
 
 of the sentence which was imposed. A void 
 sentence can no more affect the status of the 
 person upon whom it is pronounced than a void 
 judgment can affect the property against which 
 it is rendered. (U. S. ex rel. Harris -y. Daniels, 
 McDonald, et al., U. S. Circuit Court of Appeals 
 Second Circuit, Jan. 6, 1922, 279 Fed. Rep. 
 844, citing in re Bird, 3 Fed. Cas. No. 1428.) 
 For other cases, see note to article 53 
 A. G. N. 
 
 Art. 33. [Remission of summary court sentence.] The officer ordering a 
 summary court-martial shall have power to remit, in part or altogether, but 
 not to commute, the sentence of the court. And it shall be his duty either to 
 remit any part or tlie whole of any sentence, the execution of wliich would, in 
 the opinion of the surgeon or senior medical officer on board, given in writing, 
 produce serious injury to the health of the person sentenced, or to submit the 
 case again, without delay, to the same or to another summary court-martial 
 which shall have power, upon the testimony alread}' taken, to remit the former 
 punishment and to assign some other of the authorized punishments in the place 
 thereof.— (2 Mar., 1855, c. 136, s. 8, v. 10, p. 628.) 
 
 " That the Secretary of the Navy may set aside 
 the proceedings or remit or mitigate, in 
 whole or in part, the sentence imposed by 
 any naA-al court-martial con^'ened by his 
 order or by that of any officer of the Navy 
 or Marine Corps." (Act Feb. 16, 1909, 
 sec. 9, 35 Stat., 621.) 
 
 See note to article 54, A. G. N., as to sentences 
 of general courts-martial; and see note 
 above, under article 32, A. G. N., as to 
 construction of act of February 16, 1909. 
 
 Art. 34. [Proceedings and record of summary court.] The proceedings of 
 summary courts-martial shall be conducted with as much conciseness and 
 precision as may be consistent with the ends of justice, and under such forms 
 and rules as may be prescribed by the Secretary of the Navy, with the approval 
 of the President, and all such proceedings shall be transmitted in the usual mode 
 to the Navy Department, where they shall be kept on file for a period of two 
 years from date of trial, after which time they may be destroyed in the discretion 
 of the Secretary of the Navy. 
 
 This article -was re enacted to read as above 
 by act of February 16, 1909, section 14 (35 Stat. 
 622). As originally enacted it read as follows: 
 
 "Art. 34. The pi'oceedings of smnmary courts- 
 martial shall be conducted with as much con- 
 ciseness and precision as may be consistent with 
 the ends of justice, and under such forms and 
 rules as may be prescribed by the Secretary of 
 the Navy, with the approval of the President; 
 and all such proceedings shall be transmitted, 
 in the usual mode, to the Navy Department." — 
 (2 Mar., 1855, c. 136, s. 9, v. 10, p. 628.) 
 
 The Judge Advocate General of the 
 Navy "shall, under the direction of the Secre- 
 tary of the Navy, receive, revise, and have re- 
 corded the proceedings of all courts-martial 
 * * * in the naval service." (Act June 8, 
 1880, 21 Stat., 164.) 
 
 Proceedings as evidence in other 
 cases. — Where the law requires that a docu- 
 ment or paper shall be kept on file in one of the 
 departments at Washington, quaere, whether a 
 
 civil court of the United States has the right to 
 compel, by a subpoena duces tecum, the pro- 
 duction in any part of the United States of any 
 such document. If the department is com- 
 pelled to produce it in court in New York or 
 San Francisco, it certainly is not kept on the 
 files of the department during the time required 
 for its production and return. (Cohn v. U. S., 
 258 Fed. Rep., 355.) 
 
 Documents used as evidence in a naval court- 
 martial, and required by statute to be trans- 
 mitted to the Navy Department and there kept 
 on file for two years, are "official documents" 
 while so kept, and under section 882, Re\ased 
 Statutes, authenticated copies of such docu- 
 ments are admissible in evidence equally with 
 the originals, notwithstanding that the originals 
 were on file in the office of the Judge Advocate 
 General of the Navy, and that no evidence was 
 introduced to show that it was impossible, or 
 even cUlficult, to produce the originals or that 
 a request had been made upon anyone to 
 
 1009 
 
Sec. 1624, Art. 36. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 produce them. Unauthenticated copies are 
 inadmissible as secondary evidence. (Cohn v. 
 U. S., 258 Fed. Rep., 355.) 
 
 Section 882, Revised Statutes, was intended 
 to apply, at least, to any document or paper 
 which is by law required to be tiled and kept in 
 any of the executive departments of the Gov- 
 ernment; and is not limited to documents or 
 
 papers written or published by an oflicer in his 
 official character or in the performance of an 
 official duty. (Cohn v. U. S., 258 Fed. Rep., 
 355.) 
 
 For other cases, see notes to articles 42 and 
 52, A. G. N.; and see section 882, Revised 
 Statutes, and note thereto. 
 
 Art. 35. [Same punishments by general courts-martial.] Any punish- 
 ment wliich a summary court-martial is authorized to inflict may be inflicted 
 by a general court-martial. — (2 Mar,, 1855, c. 136, s. 10, v. 10, p. 628.) 
 See article 63, A. G. N., and note thereto, as to limitations of punishment by general courts-martial 
 
 Art. 36. [Dismissal of officers.] No oflicer shall be dismissed from the 
 naval service except by the order of the President or by sentence of a general 
 court-martial; and in time of peace no officer shaU be dismissed except in pur- 
 suance of the sentence of a general court-martial or in mitigation thereof. — 
 (13 July, 1866, c. 176, s. 5, v. 14, p. 92.) 
 
 By act of April 2, 1918 (40 Stat., 501^, the 
 President was authorized "to drop from the 
 rolls of the Navy or Marine Corps any 
 officer thereof who is absent from duty 
 without leave for a period of three months 
 or more, or who, having been found guilty 
 by the civil authorities of any offense, is 
 finally sentenced to confinement in a state 
 or Federal penitentiary: Provided, That 
 no officer so dropped shall be eligible for 
 reappointment." 
 Similar provision to article 36, A. G. N., is 
 contained in section 1229, Revised Stat- 
 utes; see that section and historical note 
 thereunder. See also article 37, below. 
 What officers included. -Civil engineers 
 appointed under section 1413, Revised Statutes, 
 are officers of the Navy within the meaning of 
 articles 36 and 37 of section 1624, Revised 
 Statutes. (15 Op. Atty. Gen., 165; see note 
 to sec. 1413, R. S., as to status of civil engi- 
 neers.) 
 
 Officers holding temporary appointments in 
 the Navy are not either commissioned or war- 
 rant officers, as is recognized by the act of 1862, 
 chapter 204 (sec. 1410, R. S.); therefore, legis- 
 lation as to the manner in which such ollicers 
 are to be cashiered, etc., does not apply to an 
 acting master appointed by the Secretary of 
 the Navy. (15 Op. Atty. Gen., 560. The 
 grade of "master" has since been changed to 
 lieutenant, junior grade; see note to sec. 1362, 
 R. S.) 
 
 In October, 1861, S was appointed by the 
 Secretary of the Navy "an acting master m the 
 Navy, on temporary servdce," and was dis- 
 missed from the ser\'ice by the Secretary in 
 March, 1862. Held, that the dismissal was 
 lawful; that in the absence of legislation the 
 Secretary had power to determine the time at 
 which an appointment expressly temporary 
 should come to an end. (15 Op. Atty. Gen., 
 560. In this case the appointment was made 
 by the Secretary of the Navy, under the act 
 of July 24, 1861, 12 Stat., 272.) 
 
 In January, 1864, S was appointed by the Sec- 
 retary of the Navy "an acting gunner on tem- 
 porary service " in the Volunteer Navy, and in 
 
 July, 1865, was dismissed from the service by 
 the Secretary. Held, that as an acting gunner 
 he was liable to dismissal at the will of the 
 Secretary. (15 Op. Atty. Gen., 564.) 
 
 An acting gunner is not, as such, even a 
 petty officer (citing sec. 1410, R. S.). Articles 
 36 and 37, A. G. N., make provision as to the 
 dismissal of "officers" from the naval service; 
 therefore do not apply to the case of an acting 
 gunner. (15 Op. Atty. Gen., 564.) 
 
 The provisions of article 36, A. G. N., do not 
 extend to cadets at the Naval Academy; they 
 may accordingly be dismissed from the academy 
 and from the naval service for misconduct, 
 without trial by court-martial. (15 Op. Atty. 
 Gen., 634. The ruling in this opinion does not 
 affect the question as to the status of cadets 
 under other laws relating to "any officer of the 
 Navy," but has reference only to the sense in 
 which that word is used in art. 36, A. G. N. 
 See 17 Op. Atty. Gen., 329, 332.) 
 
 The President has the power to dismiss a 
 delinquent midshipman from the Naval Acad- 
 emy for violation of regulations; and that 
 power is not restricted by the Revised Statutes, 
 section 1624. (Weller v. U. S., 41 Ct. Cls.,324. ) 
 
 The statutes on the subject of hazing do not 
 confer upon the Superintendent of the Naval 
 Academy, or the Secretary of the Navy, or 
 upon both conjointly, the power siunmarily 
 to dismiss from the academy without trial by 
 court-martial a midshipman guilty of that 
 offense. (25 Op. Atty. Gen., 543.) 
 
 For other cases, see note to section 1512, 
 Re\'ised Statutes, as to the status of midship- 
 men; note to section 1519, Re\ised Statutes, 
 as to court-martial of midshipmen and dismissal 
 without court-martial ; notes to articles 39 and 
 53, A. G. N., as to who are officers within the 
 meaning of those articles; and note to Constitu- 
 tion, Article II, sec. 2, clause 2, under "VIII. 
 Power of removal." 
 
 "Time of peace" construed. — The law 
 assumes to control the President in the matter 
 of dismissing officers from the military and 
 naval service only in time of peace. Its pur- 
 pose was, upon the declaration of peace, to sus- 
 pend the broad power which he exercised 
 
 1010 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 36. 
 
 during the recent rebellion to dismiss an officer 
 from the ser\dce whenever in his judgment the 
 public interests would thereby be promoted. 
 But peace was not inaugurated until August 20, 
 1866, on which date the President announced 
 by proclamation that "peace, order, tranquil- 
 lity, and ci\-il authority' ' then existed "in and 
 throughout the whole of the United States of 
 America" (14 Stat., 814). Since peace in con- 
 templation of law could not exist while rebellion 
 against the National Government remained 
 unsuppressed, the close of the rebellion and the 
 complete restoration of the national authority 
 as announced by the President and recognized 
 by Congress must be accepted as the beginning 
 of the "time of peace," during which the Presi- 
 dent was deprived of the power of summarily 
 dismissing officers from the military and naval 
 8er^ice. (McElrath v. U. S., 102 'U. S., 426, 
 438.) 
 
 The Limitation, "except in time of peace," 
 on the power of the President to summaiily 
 dismiss a military officer contemplates not a 
 mere cessation of hostilities, but peace in the 
 complete sense, officially proclaimed. (Kahn 
 V. Anderson, 255 U. S., 1," 10, citing McElrath v. 
 U. S., 102 U. S., 426, 438. Compare, 32 Op. 
 Atty. Gen., 505.) 
 
 Dismissal by the President with the 
 consent of the Senate. — ^\^lere the Presi- 
 dent nominated A to the Senate to be a first 
 lieutenant in the Marine Corps, vice B "dis- 
 missed," and the Senate advised and consented 
 to the appointment agreeably to the nomination, 
 and A was commissioned, held that such 
 appointment, followed by a commission, oper- 
 ated to discharge B from the ser\dce as effectu- 
 ally as if he had been dismissed by the direct 
 order of the President. (McElrath v. U. S., 
 102 U. S., 426.) 
 
 This law may be construed as prohibiting the 
 dismissal of officers of the Navy in time of peace 
 under any circumstances or for any cause or by 
 any authority whatever, except in pursuance of 
 the sentence of a court-martial to that effect or 
 in commutation thereof; or it may be construed 
 as prohibiting their dismissal by the President 
 alone, in time of peace, A\'ithout the sentence 
 of a court-martial or in commutation thereof. 
 Although the question is not free from difficulty, 
 held, that the latter is the true construction of 
 the act. "^Miether the power of the President 
 and Senate in this regard could be constitu- 
 tionally subjected to restrictions bv statute, 
 quaere. (Blake v. U. S., 103 U. S.,'227, 235, 
 236; Wallace v. U. S., 55 Ct. Cls., 396, 400.) 
 
 The President has the power to supersede or 
 remove an officer of the Army or the Navy by 
 the appointment, by and with the ad\'ice and 
 consent of the Senate, of his successor. It was 
 not the purpose of the fifth section of the act of 
 Jtdy 13, 1866 (14 Stat., 92, now embodied in 
 sees. 1229 and 1624, art. 36, R. S.), to withdraw 
 that power. (Blake i). U. S., 103 U. S., 227; 
 Keyes v. U. S., 109 U. S., 336.) 
 
 It is in substance and effect nothing more 
 than a declaration that the power theretofore 
 exercised by the President, without the con- 
 currence of the Senate, in summarily dismissing 
 or discharging officers of the Army or Navy 
 whenever in his judgment the interest of the 
 service required it to be done, shall not be 
 
 exercised in time of peace except in pursuance 
 of the sentence of a court-martial or in commu- 
 tation thereof. (Blake v. U. S., 103 U. S., 
 227, 236.) 
 
 The President has power, by and %nth the 
 advice and consent of the Senate, to displace an 
 officer in the Army or Navy by the appointment 
 of another person in his place. (Mullani). U. S., 
 140 U. S.. 240, affirming and follo^nng Blake 
 V. U. S., 103U. S.,227.) 
 
 It was competent to the President, if he 
 deemed the further continuance of G, a civil 
 engineer, in the service not advisable, to nomi- 
 nate _W in his place; the confirmation and 
 appointment of W operated to remove G, and 
 the fact that the latter received no notice of his 
 dismissal is unimportant. (16 Op. Atty. Gen., 
 203.) y ^ y , 
 
 For other cases, see note to Constitution 
 article II, section 2, clause 2, under •VIII. 
 Power of removal." See also act of March 3, 
 1883 (22 Stat.. 530), "for the relief of Edward 
 Bellows." 
 
 niegal dismissal revoked. — Certain cadet 
 engineers who had graduated from the Naval 
 Academy were honorably discharged under an 
 erroneous interpretation by the Navy Depart- 
 ment of an act enacted August 5, 1882 (22 Stat., 
 285). Such discharges were held by the courts 
 to be void. (See Perkins v. U. S., 20 Ct. Cls., 
 438, 116 U. S., 483; see also U. S. v. Redgrave, 
 116 U. S., 474; Harmon v. U. S., 23 Ct. Cls., 
 132.) In the meantime, others had been pro- 
 moted to the vacancies in commissioned grades 
 to which said cadet engineers would have been 
 promoted but for their erroneous discharge: 
 Held, that the promotions which were so made 
 can not well be distui-bed, but that said cadet 
 engineers, eiToneously discharged, should be 
 recognized as in the immediate line of promo- 
 tion in their proper order to fill the first vacan- 
 cies that may occur in the office of assistant 
 engineer. (18 Op. Atty. Gen., 373. See also 
 note to art. 10, A. G. N., as to implied resigna- 
 tions; and note to art. 53, A. G. N., as to dis- 
 missal of officer pursuant to sentence of a court- 
 martial which had not been confirmed by the 
 President.) 
 
 Power of Congress to reduce number of 
 oflB.cers.^ — An officer in the Army or Navy of 
 the United States does not hold his office by 
 contract but at the will of the sovereign power; 
 and it is within the power of Congress to provide 
 for the honorable discharge of officers not needed 
 in the Navy. The country is not compelled, 
 after the conclusion of a war, to maintain the 
 entire official force of the Army and Navy and 
 a host of sinecurists in full pay so long as they 
 shall live. (Crenshaw r. U.S., 134 U.S., 99, 107.) 
 
 Article 36, A. G. N., does not give officers of 
 the Navy a contract right to hold their offices, 
 nor deprive Congi'ess of the power of enacting 
 laws for the honorable discharge of officers. 
 One legislature can not deprive its successor of 
 the power of revocation. That article was not 
 intended to place an oflicer beyond the power 
 of Congress to make any provision for his 
 removal, even by the executive who appointed 
 him. (Crenshaw v. U. S., 134 U. S., 99, 107.) 
 
 Oflicers dropped from the roUs. — See 
 act of April 2, 1918, quoted above under this 
 article; and see note to article 37, A. G. N. 
 
 1011 
 
Sec. 1624, Art. 37. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 By order of the President an ofTicer was 
 dro^iped from the rolls of the Army for unauthor- 
 ized absence. The fact that tlie order may have 
 been issued "under a misapprehension of the 
 facts " could not change its legal e ffect ; it still re- 
 mains an authorized act of the Executive, even 
 if prompted by an erroneous impression. The 
 law does not provide for nor contemplate re- 
 course to a court-martial, or other examination 
 to ascertain the facts. His decision as to any 
 ofTicer having been made, the President is, as 
 to the case of that individual, functus officio, 
 the statute giving him no right to review, annul, 
 allirni, or reverse his own adjudication. 
 Certainly a succeeding administration has no 
 power of re\dew. The action of the President 
 in such case is not merely discretionary, but 
 quasi judicial. Action once had is final. 
 (17 Op. Atty. Gen., 13.) 
 
 The statute did not contemplate any formal 
 trial by the President, either through an "indict- 
 ment" or a court-martial, before di'opping an 
 absent officer. No form of procedure was pre- 
 scribed, but the means of discovering the facts 
 was left to the sound judgment of the President, 
 upon whom was conferred the power to act. 
 It may well be inferred that it was anticipated 
 
 that recourse would be had to the records of the 
 War Department to discover who were thus 
 delinquent. (17 Op. Atty. Gen., 13.) 
 
 The law authorizing the President to drop 
 officers of the Army from the rolls for unauthor- 
 ized absence was intended to give to the 
 President a fresh grant of power, to be exercised 
 at that time independent of the laws prohibiting 
 dismissal of officers without trial by couil- 
 martial, and making such dismissal void if 
 the officer demanded a trial by court-martial 
 and it was not granted. (Newton v. U. S., 18 
 Ct. Cls., 435.) 
 
 Under the law authorizing the President to 
 di"op from the rolls of the Ai-my an officer absent 
 from duty three months without leave, the 
 jurisdiction to find the fact of desertion was 
 vested in the President alone, and his decision 
 thereon can not be reviewed by the Court of 
 Claims in an action by the officer for the pay of 
 his office. Congress undoubtedly supposed 
 that the Commander in Chief of the Anny was 
 capable of deciding this simple fact vvithout 
 mistake or bias. Right or wrong, the court 
 must presume the fact to be as the President 
 determined it. (Newton v. U. S., 18 Ct. Cls., 
 435.) 
 
 Art. 37. [Dismissed officer may demand trial.] Wlien any officer, dismissed 
 by order of the President since 3d March, 1865, makes, in writing, an apphca- 
 tion for trial, settmg forth, under oath that he has been wrongfully dismissed, 
 the President shall, as soon as the necessities of the service may permit, convene 
 a court-martial to try such officer on the charges on which he shaU have been 
 dismissed. And if such court-martial shall not be convened witlxin six months 
 from the presentation of such application for trial, or if such court, being con- 
 vened, shall not award dismissal or death as the punisliment of such officer, 
 the order of dismissal by the President shall be void. — (3 Mar., 1865, c. 79, s. 
 12, v. 13, p. 489.) 
 
 Amendment to this article was made by act 
 of June 22, 1874, section 2 (18 Stat., 192), 
 as follows: "The accounting officers of the 
 Treasury be, and are hereby, prohibited 
 from making any allowance to any officer 
 of the Navy who has been, or may hereafter 
 be, dismissed from the service and restored 
 to the same under the provisions of the 
 twelfth section of the act of March thii'd, 
 eighteen hundred and sixty-five, entitled 
 'An Act to amend the several acts hereto- 
 fore passed to provide for the enrolling and 
 calling out the national forces, and for 
 other purposes,' [art. 37, A. G. N.] to exceed 
 more than pay as on leave for six months 
 from the date of dismissal, unless it shall 
 appear that the officer demanded in writ- 
 ing, addressed to the Secretary of the Navy, 
 and continued to demand as often as once 
 in six months, a trial as provided for in 
 said act." 
 Enactment held constitutional. — The 
 twelfth section of the act of March 3, 1865 (13 
 Stat., 489; now art. 37, A. G. N.), providing in 
 certain contingencies for the restoration of an 
 officer dismissed from the military or naval serv- 
 ice, is constitutional and imperative. It falls 
 within the fomteenth clause of section 8 of 
 
 Article I of the Constitution, "to make rules 
 for the government and regulation of the land 
 and naval forces." (12 Op. Atty. Gen., 4.) 
 _ It does not seem to be obnoxious to the objec- 
 tion that it invades or frustrates the power of 
 the President to dismiss an officer. On the 
 contrary, it proceeds upon an admission that 
 the power of dismissal belongs to the President. 
 It is simply a regulation which is to follow dis- 
 missal, providing in certain contingencies for 
 the restoration of the offic^er to the service, and 
 leaving the dismissal in full force if those con- 
 tingencies do not happen. (12 Op. Atty. Gen., 
 4. See note to art. 32, A. G. N., as to condi- 
 tional discharge under summary court-martial 
 sentence.) 
 
 Not limited to time of peace. — The terms 
 of the act of March 3, 1865 (13 Stat., 489; art. 
 37, A. G. N.), do not confine it to time of peace. 
 Its terms are general. (Wallace v. U. S., 55 Ct. 
 Cls., 396, 402.) 
 
 Not a limitation on power of dismissal. — 
 It does not express any purpose to limit the 
 President's power to dismiss. On the contrary, 
 it recognizes that power and clearly imports, by 
 its language, that there shall have been a dis- 
 missal beifore the officer can invoke its pro- 
 visions. It does not speak of suspension, but 
 
 1012 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 37. 
 
 does mention dismissal. It is not to be pre- 
 sumed, nor does the language of the act indi- 
 cate, that the power which Congress had 
 "requested" the President to employ, to dis- 
 miss officers from the military service (act 
 July 17, 1862, 12 Stat., 596), was intended to be 
 taken away from him or Limited in 1865, the 
 war then continuing. (Wallace v. U. S., 55 
 Ct. Cls., 396, 402.) 
 
 If it be said that the language of the act, 
 though specific in its reference, does not imply 
 that the officer is or can be dismissed by the 
 President's order, but means that the order has 
 the effect of only suspending him from duty, 
 then the act provides no method of determining 
 the status of the officer if he fails to demand a 
 trial; nor does it provide, if a court-martial be 
 convened, for any execution of its award. 
 (Wallace v. U. S., 55 Ct. Cls., 396, 404.) 
 
 Meaning of law obscure. — The language is 
 not aptly chosen, and the meaning to be 
 ascribed to it is obscure. (Wallace v. U. S., 
 55Ct. Cls.,396, 403.) 
 
 WTiether the purpose of the law is fiilly met 
 by a court-martial or some other body, author- 
 ized by order of the Presideirt, whose findings 
 can go to the officer's record or make him 
 eligible to reappointment, or whether a broader 
 meaning should be accorded to it, not decided. 
 (Wallace v. U. S., 55 Ct. Cls., 396, 404.) 
 
 Restoration requires new appoint- 
 ment. — If it be assumed that it was not its in- 
 tention to limit the power of dismissal (and its 
 terms certainly import that it treats the dismis- 
 sal as a fact), then the declaration that the order 
 of dismissal shall be void, because of something 
 subsequently occurring, could not be effective 
 to restore the officer to his office. Let it once 
 be admitted that the officer was dismissed from 
 the service, and it must follow that the effect 
 of the order dismissing him was to sever his 
 relations Math the Army. The vacancy so 
 created could be filled only by a new and origi- 
 nal appointment, to which, by the Constitution, 
 the advice and consent of the Senate is neces- 
 sary. (Wallace ?;. U. S., 55 Ct. Cls., 396, 403, 
 citing U. S. V. Corson, 114 U. S., 619, 622.) 
 
 Where a person has ceased to be an officer of 
 the Army, he could not again become one ex- 
 cept upon a new appointment, by and with the 
 ad\ice and consent of the Senate. (Blake v. 
 U. S,, 103 U. S., 227, 237, citing Mimmack v. 
 U. S., 97 U. S., 426.) 
 
 The act of June 22, 1874, section 2 (quoted 
 above, under this article), contains a reference 
 to the act of March 3, 1865 (now art. 37, A. G, 
 N.), but relates to the case of an officer of the 
 Navy dismissed from the service and "restored" 
 to the same. It does not appear how the resto- 
 ration took place, and from the whole section it 
 appears that the officer is not restored to office. 
 (Wallace v. U. S., 55 Ct. Cls., 396, 401.) 
 
 It can not be seriously questioned that if a 
 vacancy in his office M'as created by an officer's 
 dismissal, it could only be filled by a new 
 appointment made by the Executive, with the 
 consent of the Senate. It could not be filled by 
 legislative enactment. (Wallace v. U. S., 55 
 Ct. Cls., 396, 399, citing Wood's Case, 107 U. S., 
 414, 15 Ct. Cls., 151; Minunack Case, 97 U. S., 
 426, 437; Corson Case, 114 U. S., 619, 622.) 
 
 See note to Constitution, Article I, section 7, 
 clause 2, under "Veto of bill authorizing 
 restoration of dismissed officer." 
 
 Execution of court-martial sentence.— 
 While the language of the act justifies the con- 
 clusion that the power of dismissing an ofiicer 
 was not taken away, his reinstatement is not 
 left to stand upon the action of a court-martial, 
 because the order of dismissal, it is declared, 
 shall be void if a court-martial be not convened. 
 Nor does the act contemplate any execution of 
 a sentence of a court-martial, if convened. It 
 declares that the order of dismissal "shall be 
 void " if the coiu-t-martial does not award dis- 
 missal or death, but implies that the President's 
 order shall stand if the court-martial's sentence 
 should call for severer punishment. In other 
 words, the effect upon the order of dismissal is 
 the same, whether the court-martial be not con- 
 vened or, being convened, award a different 
 punishment than mere dismissal. (Wallace v. 
 U. S., 55 Ct. Cls.,396, 403.) 
 
 Article prospective only. — -The phrase in 
 section 1230, Re\'ised Statutes (corresponding 
 to art. 37, A. G. N.), "any officer dismissed," is 
 prospective only in its meaning, and an officer 
 dismissed without court-martial in 1863, by 
 order of the President, held not entitled to a 
 trial upon his application therefor in 1878. 
 (16 Op. Atty. Gen., 599.) 
 
 Time for making application for trial.— 
 Though no time is limited in the act for making 
 the application for a court-martial, the general 
 rule of law would require the claim to be 
 made within a reasonable time. It is not 
 reasonable to wait until the statute of limita- 
 tions has run against the offense, witnesses 
 have disappeared, and memory failed; or until 
 we may naturally expect these things to have 
 occurred. (17 Op. Atty. Gen., 13, 20.) 
 
 When an officer of the Army claims that he 
 has been illegally dismissed or dropped from 
 the rolls, and seeks the benefit of section 1230, 
 Re\'ised Statutes (corresponding to art. 37, 
 A. G. N.), he must make his application there- 
 under for trial by court-martial \vithin a reason- 
 able time after dismissal, or his acquiescence 
 will be presumed. Long delay, by changes, 
 promotions, and appointments, may work great 
 confusion in the Army Register and great injury 
 to many officers. Witnesses disappear, and facts 
 are forgotten. A delay of nine years in asking 
 for a trial was unreasonable, and the officer in 
 such case must be presumed to have acquiesced 
 in the order of the President. (Newton v. 
 U. S., 18 Ct. Cls., 435.) 
 
 Ofla.cer dropped from the roUs. — The act 
 of March 3, 1865, section 12 fnow art. 37, 
 A. G. N.), was passed while the war was fla- 
 grant, and while the President had authority 
 under the act of July 17, 1862, section 17 (12 
 Stat., 596), "to dismiss and discharge from the 
 military service, either in the Army, Navy, 
 Marine Corps, or volunteer force, in the United 
 States service, any officer for any cause which, 
 in his judgment, either renders such officer 
 unsuitable for, or whose dismission would pro- 
 mote, the public service." Neither said act of 
 March 3, 1865, nor that of July 13, 1866, section 
 5 (now art. 36, A. G. N.), applies to cases ex- 
 pressly and specifically pro\ided for by subse- 
 
 1013 
 
Sec. 1624, Art. 38. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 quent legislation authorizing the President to 
 drop from the rolls oliicers absent from duty 
 %\-ilhout leave for three months. (17 Op. Atty. 
 Gen., 13, 19; see note to art. 36, A. G. N.) 
 
 Officer superseded by appointment of 
 successor. — Where an officer was dismissed 
 by the Tresiflent wdthout trial, and his successor 
 appointed, by and wi^h the advice and consent 
 of the Senate, the officer can not thereafter 
 claim the pay of his office on the ground that the 
 President failed to grant his request for trial by 
 court-martial, except, possibly, for the short 
 period elapsing between the date of the Presi- 
 dent's order of dismissal and the date of the 
 new appointment. (Wallace v. U. S., 55 Ct. 
 (Is., 39(), -101.) 
 
 Pay of officer dismissed without trial. — 
 Since the restoration of an officer who has been 
 lavvfuUy dismissed from his office requires a new 
 appointment, it would seem that the act (em- 
 bodied in art. 37, A. G. N.) does not in any 
 event affect the office that was held, or entitle 
 him to its emoluments. (Wallace v. U. S., 55 
 Ct. Cls.j 396, 404.) 
 
 A retired naval officer was dismissed from 
 the Navy by order of the President on Decem- 
 ber 30, 1865. In May, 1876, upon his applica- 
 tion for trial bv court-martial, made under sec- 
 tion 12 of the act of March 3. 1865 (art. 37, A. 
 
 G. N.), a court was awarded which in June, 
 1876, pronounced him innocent of every charge 
 and specilication, and the dismissal being 
 thereby annulled he was ordered, June 5, 1876, 
 to be restorr-d to the retired list. Between the 
 date of his dismissal and the date of his restora- 
 tion he had not demanded in wiiting from the 
 Secretary of the Navy, as often as once in six 
 months, a trial; but pay was claimed by him 
 for that period. Held, that the right of the 
 claimant to pay is governed by section 2 of the 
 act of June 22, 1874, chapter 392 (quoted above 
 under this article), under the proxisions of 
 which he is not entitled to more than "pay as 
 on leave for six months from the date of dis- 
 missal." It was competent to Congress to 
 modify, in the matter of pay, the effect of a 
 restoration under the act of 1865. (15 Op. 
 Atty. Gen., 569.) 
 
 Similar law for Army repealed. — The 
 right of the President to dismiss an officer of the 
 Army in time of war, in so far as it may have 
 been limited by section 1230, Revised Statutes 
 (corresponding to art. 37, A. G. N.), is now 
 unimpaii-ed, as the latter section has been 
 superseded by the articles of war enacted 
 August 29, 1916 (39 Stat., 651, 669). (WaUace 
 V. U. S., 55 Ct. Cls., 396.) 
 
 Art. 38. [General courts-martial; convening authority. Superseded.] 
 
 This article provided as follows: 
 
 "Art. 38. General courts-martial may be 
 convened by the President, the Secretaiy of 
 the Navy, or the commander-in-chief of a fleet 
 or squadron; but no commander of a fleet or 
 squadron in the waters of the United States 
 shall convene such com't without express 
 authority from the President."— (17 July, 1862, 
 c. 204, s. 1, art. 11, v. 12, p. 603.) 
 
 It was superseded by act of February 16, 
 1909, section 10 (35 Stat., 621), as follows: 
 "That general courts-martial may be convened 
 by the President, by the Secretary of the 
 Navy, by the commander in chief of a fleet or 
 squadron, and by the commanding officer of 
 any naval station beyond the continental 
 liniits of the United States." 
 
 Further amendment was made by act of 
 August 29, 1916 (39 Stat., 586), which provided 
 as follows: "When empowered by the Secretary 
 of the Navy, general courts- martial may be 
 convened by the commanding officer of a squad- 
 ron, of a division, of a flotilla, or of a larger naval 
 force afloat, and of a brigade or larger force of 
 the naval service on shore beyond the conti- 
 nental limits of the United States: Provided, 
 That in time of war, if then so empowered by 
 the Secretary of the Navy, general couits- 
 martial may be convened by the commandant 
 of any navy yard or naval station, and by the 
 commanding officer of a brigade or larger force 
 of the Navy or Marine Corps on shore not 
 attached to a navy yard or naval station." 
 
 The act last cited further provided that 
 "when a force of marines is embarked on a 
 naval vessel, or vessels, as a separate organiza- 
 tion, not a part of the authorized complement 
 thereof, the authority and powers of the officers 
 of such separate organization of marines 
 
 shall be the same as though such organi- 
 
 zation were serving at a navy yard on shore, 
 but nothing herein shall be construed as 
 impairing the paramount authority of the com- 
 manding officer of any naval vessel over the 
 vessel under this command and all persons 
 embarked thereon." 
 
 It was also provided by the act last cited that 
 "all officers of the Navy and Marine Corps 
 who are authorized to order either general or 
 summary courts-martial may order deck 
 courts upon enlisted men under their com- 
 mand, and shall have the same authority to in- 
 ffict minor punishments as is conferred by law 
 upon the commander of a naval vessel." (See 
 art. 24, A. G. N., as to punishments by com- 
 manding officers; and see act Feb. 16, 1909, 
 35 Stat., 621, as to deck courts.) 
 
 Courts-raartial for trial of midship- 
 men. — See laws and decisions noted under 
 section 1519, Revised Statutes. 
 
 Statutory authority necessary to con- 
 vene courts. — It belongs exclusively to 
 Congress to ordain or provide for courts-martial, 
 to define their jurisdiction, to make their sen- 
 tences final and conclusive or subject to some 
 revisory power, to designate by whom they 
 shall be convened and by whom their sentences 
 shall be revised or confirmed, and generally to 
 make such provision concerning them as they 
 deem proper. It follows from the exclusive 
 power of Congress over the subject that no one 
 can have any authority, either to convene a 
 court-martial or to affii'm or disaffirm its 
 decision, unless it can be shown that such 
 authority has been delegated by Congress. 
 (5 Op. Atty. Gen., 508.) 
 
 The objection that the officer who convened 
 the court was not empowered by the President 
 to do so, as required by the statute then in force, 
 if well taken, is jurisdictional. (U. S. v. Smith, 
 
 1014 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 39. 
 
 197 U. S., 386, 392. See note to art. 53, A. G. N. 
 as to effect of jurisdictional defects.) 
 
 Where an officer in 1865 was sentenced by 
 court-martial, inter aha, to be dismissed from 
 the service, and the sentence was approved 
 and executed by order of the commanding 
 general by whom the court was convened, 
 held (in 1882) that the court was illegally con- 
 stituted, and the findings and sentence there- 
 fore null and void, for the reason that the con- 
 vening authority had no power to appoint said 
 court if he were disquahfied by the fact that he 
 was himself the "accuser or prosecutor" who 
 was forbidden by the articles of war to convene 
 a court in such case. {11 Op. Atty. Gen., 436. 
 See note to art. 39, A. G. N., as to courts 
 illegally constituted; see note to art 53, A. G. 
 N., as to jurisdictional defects; and see note to 
 art. 10, A. G. N., as lo acqmescence in dis- 
 missal.) 
 
 President's power not dependent on 
 statute. — It is within the power of the Presi- 
 dent, as Commander in Chief, to convene _a 
 general court-martial even in cases where he is 
 not expressly authorized to do so by statute. 
 (Swaim^;.U. S., 165U. S., 553, 556.) 
 
 As Cormnander in Chief the President is 
 authorized to give orders to his subordinates, 
 and the convening of a court-martial is simply 
 the giving of an order to certain officers to 
 assemble as a court, and when so assembled to 
 exercise certain powers conferred upon them 
 by the articles of war. (Swaim v. U. S., 165 
 U. S., 553, 556, citing Runkle -v. U. S., 19 Ct. 
 Cls., 396, 409. See 15 Op. Atty. Gen., 297-303, 
 for complete note on this subject.) 
 
 Evidence of convening authority's 
 power. — A recital in the precept forming part 
 of the record of a naval court-martial that it was 
 convened by virtue of express authority vested 
 in the officer convening the same by the Presi- 
 dent of the United States is sufficient evidence 
 of such authority in habeas corpus proceedings. 
 (In re Grain, 84 Fed. Rep., 788.) 
 
 The designation of an officer in the proceed- 
 ings of a naval court-martial as "Cormnander 
 in Chief, U. S. Naval Forces, North Atlantic 
 Station," raises the presumption, under the 
 Navy Regulations, that he was in command of 
 a fleet or squadron and was therefore a proper 
 officer to convene the coiirt. (In re Cratu, 
 84 Fed. Rep., 788.) 
 
 Under the law authorizing certain officers of 
 the Army to convene courts-martial when 
 empowered by the President, held that a general 
 order of the President lodging this power in the 
 commanders of designated military camps is 
 judicially noticed as part of tha law of the land, 
 and the legality of a court-martial estabhshed 
 under it is not affected by omission to refer to it 
 the order conveninsr the court-martial. 
 
 in 
 
 See note to article 52. A. G. N.. under 
 "Omission of record to show jmisdictional 
 facts." 
 
 Changes in convening order. — The 
 original order directed the comt to convene on 
 board the U. S.S. ifaine at 10 a. m., on Monday, 
 January 11, 1897, or as soon thereafter as prac- 
 ticable; subsequently, on Januaty 22, the con- 
 vening authority issued a second order directing 
 that the court convene on board the U. S. S. 
 Montgoifnery as soon as practicable after her 
 arrival at Hampton Roads. The court met on 
 January 25, 1897. We are unable to discover 
 any illegality or anything that was prejudicial 
 to the accused in changing the date of trial. 
 ( In re Crain, 84 Fed . Rep . , 789 ; see notes to arts. 
 39, 46, and 47, as to personnel of courts-martial.) 
 
 Convening authority outside his com- 
 mand. — In the absence of legislation or of 
 orders from competent authority to the con- 
 trary, personal presence within the territorial 
 limits of his command is not essential to the 
 vaUdity of an order given by an officer appoint- 
 ing a court-martial within such limits. He 
 may appoint general courts-martial and act 
 upon the record of proceedings of the same 
 when outside the territorial limits of his com- 
 mand. Whether there may be exceptions to 
 the foregoing, growing out of special circum- 
 stances attending absence, can be best deter- 
 mined when those circumstances arise. The 
 ground of this opinion is that there is at present 
 nothing else to indicate the will of the President 
 or other superior authority that the functions 
 of commanding officers should be so hmited. 
 (16 Op. Atty. Gen., 678.) 
 
 When courts convened. — This power may 
 be exercised on information received by the 
 officer invested with it from his own sense of 
 official duty, or on the application of other 
 persons accompanied by charges which such 
 officer may deem sufficient to require a trial. 
 (4 Op. Atty. Gen., 410.) 
 
 General courts-martial have been convened 
 by the Secretary of the Navy upon resolution 
 of the House of Representatives requesting the 
 trial of designated officers. (See, e. g., G. O. 
 156, May 24, 1870, pubhshing case of Com- 
 mander John H. Upshur, U. S. N.) 
 
 ♦'Waters of the United States" con- 
 strued. — The provision in article 38 of section 
 1624, Re^ised Statutes, that no commander of 
 a fleet or squadron "in the waters of the United 
 States" shall convene a general court-martial 
 without express authority from the President, 
 was enacted in 1862, and will be construed as 
 intending to apply to waters witliin the con- 
 tinental Umits of the United States, and not to 
 waters in the territory beyond seas (Pliilippine 
 Islands) acquired since the passage of that act, 
 and the acquisition whereof was not contem- 
 plated at that time. (U. S. v. Smith, 197 U. S., 
 386.) 
 
 (Givens v. Zerbst, 255 U. S., 11, affirming 
 ex parte Givins, 262 Fed. Rep., 702.:) 
 
 Art. 39. [General courts; constitution of.] A general court-martial shall 
 consist of not more than thirteen nor less than five commissioned officers as 
 members; and as many officers, not exceeding tliirteen, as can be convened 
 without injury to the service, shall be summoned on every such court. But in 
 no case, where it can be avoided without injury to the service, shall more than 
 
 1015 
 
Sec. 1624, Art. 39. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 one-half, exclusive of the president, be junior to the officer to be tried. The 
 senior officer shall alwa\^s preside and the others shall take place accorduig to 
 tlieir rank.— (17 July, 1862, c. 204, s. 1, art. 11, v. 12, p. 603. Wise v. Withers, 
 3 Cr., 337. Dynes v. Hoover, 20 How., 81, 84.) 
 
 Commissioned officers of the Naval Resen'e 
 Force, ^Marine Corps Reser\-e, Coast Guard, 
 Lighthouse SerAace, Coast and Geodetic 
 Survey, and Public Health Service are 
 empowered to serve on naval courts-martial 
 when actively serving under the Navy 
 Department in time of war or emergency as 
 part of the naA'al forces of the United 
 States. (Act Oct. 6, 1917, 40 Stat., 393.) 
 Rank and precedence of officers associated to- 
 gether on duty: See sections 1485, 1486, and 
 1489, ReAised Statutes. 
 Number of members. — The execution of 
 a sentence of death is murder unless the court 
 pronouncing it consisted of 13 commissioned 
 officers, where that number could have been 
 convened without manifest injury to the serv- 
 ice. (1 Op. Atty. Gen., 296.) 
 
 A court-martial which consisted of five mem- 
 bers only was not a legal court if 13 could have 
 been convened without manifest injury to the 
 ser^'ice. The language of the law does not pro- 
 \-ide that the court shall consist of 13 members 
 where that number can be "conveniently" 
 convened ; but where they can be convened at 
 all, not only without probable injury but with- 
 out "manifest" injury to the service. (1 Op. 
 Atty. Gen., 296, construing Army law.) 
 
 It is difficult to conceive an emergency in 
 time of peace so pressing as to disable the gen- 
 eral officer who orders the court from convening 
 13 commissioned officers on a trial of life and 
 death, "without manifest injury to the serv- 
 ice." (1 Op. Atty. Gen., 296.) 
 
 Suggested, that in every case of life and death, 
 at least, the President ought to be satisfied of 
 the manifest injurj^ which the servdce would 
 have sustained in convening a court of 13 before 
 he gives his sanction to a sentence of death by a 
 smaller number. (1 Op. Atty. Gen., 296.) 
 
 Although naval courts-martial shall have 
 been organized with five members only, under 
 the orders appointing them, their sentences are 
 not invalid for that reason. Although the 
 Na\'y article, reading, "without injury to the 
 ser\-ice," is not in the same words as the article 
 of war, they contain substantially the same 
 provisions in relation to general courts-martial ; 
 and the discretion vested in the officer appoint- 
 ing the court to regulate the number by the 
 exigencies of the public serv-ice is ob^dously 
 of the same character in both cases. The 
 Supreme Court have declared that the language 
 used in the article of war is merely directory 
 to the officer appointing the court, and his 
 decision as to whether that number can be 
 couA'ened without manifest injury to the serv- 
 ice, being in a matter submitted to his sound 
 discretion, must be conclusive. The discre- 
 tion vested in the officer appointing a naval 
 com"t-martial, being of the same character, his 
 decision must be equally conclusive. (2 Op. 
 Atty. Gen., 534, citing Martin v. !Mott, 12 
 Wheat., 34, 35.) 
 
 Objection to a naval court-martial, because 
 consisting of only nine members, must be taken 
 
 during the trial as only involving the question 
 of fact whether a greater number of officers 
 could have been detailed without injury to 
 the service, and not ])eing a ground of nullity. 
 (6 Op. Atty. Gen., 369.) 
 
 This objection is matter, not of nullity in the 
 face of the record but of possible error merely, 
 depending on a question of fact, viz, what 
 nimiber of officers could have been summoned 
 "Mthout injury to the sendee"? That ques- 
 tion of fact was required to be raised at the 
 time, in order that the court or the President 
 of the United States might judge and decide 
 thereon, as they or he had the power to do. If 
 raised at the time, the decision of the court, 
 or certainly of the President in approAdng the 
 sentence, would have been final and con- 
 clusive on the point. (6 Op. Atty. Gen., 369; 
 see note to art. 53, A. G. N., as to irregularities 
 and fatal defects.) 
 
 The number of persons detailed to constitute 
 a court-martial, pro\'ided it do not fall below 
 the minimum number of five prescribed by 
 the statute, is a matter of discretion \vithin the 
 lawful authority of the officers appointing the 
 court. (6 Op. Atty. Gen., 506.) 
 
 Article 39, A. G. N., which requires that as 
 many officers not exceeding 13 as can be con- 
 vened without injury to the service shall be 
 summoned on every general court-martial was 
 fully complied with in this case. Admiral 
 Bimce in his letter to Capt. Wise designated 
 eight officers who were to compose the court, 
 and this communication expressly stated that 
 no other officers could be summoned without 
 manifest injury to the serA-ice. The order of 
 Admiral Bunco to Capt. Wise designating the 
 members of the court was a summons, within 
 the meaning of the statute. The fact that 
 Admiral Bunce subsequently, in another letter 
 to Capt. Wise, substituted Lieut. Berry in 
 place of Lieut. Comly as a member of the court- 
 martial, is immaterial. (In re Grain, 84 Fed. 
 Rep._, 788.) 
 
 It is verj' clear that the article of war proAdd- 
 ing that general courts-martial shall consist 
 of not less than 13, where that number can 
 be convened ^vithout manifest injury to the 
 serAice," is merely directory to the officer 
 appointing the court; and that his decision as 
 to the number which can be convened without 
 manifest injury to the serAdce, being in a 
 matter submitted to his sound discretion, must 
 be conclusive. (Martin v. Mott, 12 Wheat., 19, 
 35.) 
 
 It is a question for the officer couA-ening the 
 court to determine whether more members could 
 be convened Avithout injury to the service; and 
 his action in this respect can not be attacked 
 collaterally, and if the accused express satis- 
 faction with the court-martial as constituted, it 
 is a clear waiver of any objection to its person- 
 nel. (Bishop V. U. S., 197 U. S., 334.) 
 
 The rank and number of meml^ers of a court- 
 martial must necessarily be, and is, left some- 
 what to the discretion of the officer conA-ening the 
 
 1016 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 39. 
 
 court. There is nothing in this case to indicate 
 an abuse of discretion, or that a larger number 
 of officers might have been convened without 
 injury to the service, although if the accused had 
 taken prompt advantage of the defect it might 
 have been necessary to show that a larger num- 
 ber could have been obtained. His expressed 
 satisfaction with the court as constituted was a 
 clear waiver of any objection to its personnel. 
 (Bishop V. U. S., 197 U. S., 334, 340.) 
 
 Under the articles of war which provide that 
 a court-martial shall be composed of not less 
 than five officers and must be composed of 13, 
 when so many may be convened without 
 manifest injury to the service, held that the 
 fixing of the number within those limits, with 
 reference to the conditions of the service, is an 
 act of executive discretion not subject to judi- 
 cial rexiew. (Kahn v. Anderson, 255 U. S., 1, 
 citing Martin v. Mott and Bishop v. U. S., 
 above noted. The court in this case was com- 
 posed of eight members, the order certifjdng 
 that more than that number could not be con- 
 vened without manifest injury to the ser^•ice; 
 and the legality of the organization of the court 
 and its jurisdiction were at once challenged.) 
 
 See note to article 46, A. G. N., as to absence 
 of members during the trial; note to article 38, 
 A. G. N., as to fatal defect in convening court- 
 martial; and note to article 53, A. G. N., as to 
 irregularities not fatal. 
 
 Supemvunerary members. — See note to 
 article 47, A. G. N., under "Member absent at 
 commencement of proceedings." 
 
 Rank of m.em.bers. — See note to article 45, 
 A. G. N., as to absence of member resulting in 
 more than one-half of the remaining members, 
 exclusive of the president, being junior to the 
 accused . 
 
 The fact that one of the ofiicers composing 
 a court-martial is junior in rank and another 
 inferior in grade to the accused, does not of 
 itself render either of them incompetent to sit. 
 (17 0p. Atty. Gen., 397.) 
 
 When the commander in chief of a squadron 
 not in the waters of the United States convenes 
 a court-martial to try an officer attached to the 
 squadron, more than one-half of whose members 
 are junior in rank to the accused, the courts 
 of the United States will assume, when his 
 action in this respect is attacked collaterally, 
 and nothing to the contrary appears on the face 
 of the order convening the court, that he 
 properly exercised his discretion and that the 
 trial of the accused by such a court could not 
 be avoided mthout inconvenience to the serv- 
 ice. (Mullan V. U. S., 140 U. S., 240. In the 
 order convening the court in this case it was 
 stated : ' ' No other officers than those named can 
 be assembled without manifest injury to the 
 service." When the court convened, the ac- 
 cused objected and protested to being tried 
 by the court, because five of its seven mem- 
 bers were his juniors. At the time of the 
 organization of the court there were 12 naval 
 officers superior in rank to the accused on wait- 
 ing orders in the city of Washington. He was 
 sentenced to dismissal and the sentence con- 
 firmed by the President. He brought suit two 
 years after dismissal to recover pay on the 
 ground that the action of the court-martial 
 was void . Judgment was rendered against Mm . ) 
 
 In detailing officers to compose a court- 
 martial the presumption is that the convening 
 authority acts in pursuance of the law; and the 
 sentence of the court can not be collaterally 
 attacked by going into an inquiry as to whether 
 the trial by officers inferior in rank to the ac- 
 cused was or was not avoidable, even though the 
 record does not affirmatively disclose that the 
 appointment of officers inferior in rank to the 
 accused was unavoidable by reason of some 
 necessity of the service. Several considera- 
 tions might have determined the selection of 
 the members of the court, such as the health 
 of the officers within convenient distance or 
 the injury to the public interests by detaching 
 officers from their stations. (Swaim v. U. S., 
 165 U. S., 553, 559.) 
 
 What officers eligible as members. — 
 Undergraduates _ at the MiUtary Academy, 
 West Point, are in the eye of the law not com- 
 missioned officers, but warrant officers, and are 
 not therefore eligible to sit as members of an 
 Armv court-martial. (7 Op. Atty. Gen., 323, 
 328.) 
 
 The legal condition of undergraduate cadets 
 at the Military Academy appears from the law 
 and regulations to be in some respects analogous 
 to that of midshipmen in the Navy. (7 Op. 
 Atty. Gen., 323, 329.) 
 
 \\Tiether or not the words "commissioned 
 officers, ' ' as used in the articles of war relating 
 to the constitution of courts-martial, include 
 all commissioned officers, it is at least certain 
 that they exclude all persons who are not 
 commissioned officers. (7 Op. Atty. Gen., 
 323, 330.) 
 
 Chaplains, surgeons, pursers, and all other 
 noncombatant officers are incompetent to offi- 
 ciate as members of naval courts-martial. (2 
 Op. Atty. Gen., 297.) 
 
 Under Army statutes a cadet graduated from 
 the Military Academy, if no vacancy existed 
 to which he could be appointed in a particular 
 corps, was attached to such corps by brevet of 
 the lowest grade, as a supernumerary officer, 
 until a vacancy should happen, when he was 
 to receive his line commission. ^Vlien so 
 brevetted as a second lieutenant and attached 
 as a supernumerary officer to some corps of the 
 Army, such graduated cadet, while in this 
 intermediary state, was a "commissioned offi- 
 cer" within the meaning of the articles of war 
 prescribing who shall be members of a general 
 or regimental court-martial. (7 Op. Atty. Gen., 
 323, "overruling 2 Op. Atty. Gen., 251. As to 
 status of brevet officers, see note to sec. 1604, 
 R. S.) 
 
 Volunteer naval officers appointed under the 
 act of July 24, 1861, for the temporary increase 
 of the Navy, were "commissioned officers" and 
 competent to serve on general courts-martial. 
 (10 Op. Atty. Gen., 522. The volunteer officers 
 referred to were "acting" officers appointed 
 by the Secretary of the Navy under the act of 
 July 24, 1861, sec. 2, 12 Stat., 272, and were 
 held by the Attorney General not to be 
 "officers" -within the meaning of art. 36, A. G. 
 N.; see note to that article.) 
 
 The word "commissioned" is used in the 
 Articles for the Government of the Navy only 
 to indicate the rank of officers capable of 
 ser\ing on a general covu"t-martial, and to 
 
 1017 
 
Sec. 1624, Art. 39. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 distin<i;viish them from noncommissioned officers 
 anil })etty ofKcers, terms well understood in the 
 Navy and the country. (10 Op. Atty. Gen., 
 522.) 
 
 The appointment of an officer may, indeed, 
 be temporary, but as long as it lasts he is, to all 
 intents and purposes, an officer of the Navy; 
 and he is as fully commissioned as any other 
 officers of the Navy are to perform all naval 
 services and duties appropriate to his rank. 
 (lOOp. Atty. Gen., 522.) 
 
 Minority of member, — The minority of 
 some of the members of a court-martial is not 
 available as an -objection to the validity of its 
 proceedings. WTiatever effect minority of a 
 junior would have at common law upon the ver- 
 dict, it has nothing to do with the action of a 
 court-martial which exists by virtue of statutes 
 and regulations conformable thereto. (16 Op. 
 Atty. Gen., 550.) 
 
 Retired oflB.cers. — Retired officers and 
 officers of the United States Guards are compe- 
 tent, under the articles of war, to sit on courts- 
 martial as officers ' 'in the military service of the 
 United States " ; the former because they are 
 officers in the military service of the United 
 States, and because the order assigning them 
 to the court was vnthin the authority conferred 
 by the act of April 23, 1904 (33 Stat., 264), 
 which provides that ' ' the Secretary of War may 
 assign retired officers of the Army, with their 
 consent, to active duty * * * upon couils- 
 martial . ' ' The latter because, under sections 1 
 and 2 of the selective service act of May 18, 1917 
 (40 Stat., 77), and regulations of the President 
 thereunder, the United States Guards were a 
 part of the Army of the United States, and these 
 officers were therefore competent to be assigned 
 to court-martial duty. (Kahn v. Anderson, 
 255 U. S., 1; see note "to art. 52, A. G. N., under 
 "Omission of record to show jurisdictional 
 facts.") 
 
 Changes in membership by Bureau of 
 Navigation. — The conviction by a general 
 court-martial can not be ratified or confirmed 
 by the Secretary of the Navy where one mem- 
 ber of the court was relieved, and another 
 member substituted in his stead, by the Chief 
 of the Bureau of Navigation, without authority 
 of the Secretary of the Navy by whom the 
 court was convened. Trial by a court-martial 
 not legally constituted is not a trial which can 
 be said to be "due process of law." (22 Op. 
 Atty. Gen., 137; see note to art. 53, A. G. N., 
 as to irregularities and fatal defects.) 
 
 New trial; former raemberg ineligible. — 
 The officers who sat upon the first trial should 
 all be excluded from the second trial. They 
 have formed and expressed opinions upon the 
 case which would disqualify them from service 
 as jurors in a criminal case in a common-law 
 court; and there is no reason why, under the 
 same circumstances, officers should not be ex- 
 cluded from a court-martial and especially as 
 they are the triers of the facts as well as the law. 
 (3 Op. Atty. Gen., 396.) 
 
 Challenge of member. — The decision of a 
 court-martial in overruling an objection made 
 by the accused to an officer sitting on the trial 
 whom the accused in the performance of his 
 official duty on several occasions severely criti- 
 cised for official reports, and whose enmity and 
 
 dislike had been thereby incurred, could not be 
 reviewed by the civil courts in a collateral 
 action by the accused for the pay of his office. 
 (Swaim v. U. S., 165 U. S., 553, 560. See note 
 below, under "Court illegally constituted"; 
 and see note to art. 53, A. G. N., as to review of 
 errors by civil coui'ts.) 
 
 Court illegally constituted. — Where a 
 court-martial is illegally constituted, all of the 
 members thereof being incompetent by statute 
 to sit thereon for the trial of the case before it, 
 the invalidity of the court can be raised by 
 habeas corpus. The judgment, even after 
 approval of the officers provided by statute, is 
 that of a court of limited jurisdiction only, 
 whose judgments may be attacked collaterally. 
 The question is one of jurisdiction simply. If 
 the court-martial had jurisdiction over the sub- 
 ject matter of the charge and of the person of 
 the accused, or if his consent gave such juris- 
 diction, the vviit of habeas corpus v\ill afford no 
 relief, for generally in such case any error com- 
 mitted by a court-martial regularly organized 
 and vvith full jurisdiction is not assailable before 
 the civil courts. But where the court is ille- 
 gally constituted, it has no jurisdiction over the 
 person of the accused or of the subject matter of 
 the charge against him, and his consent could 
 confer none m opposition to the statutory re- 
 quirement for members of a court-martial, con- 
 vened to try him. (McClaughry v. Deming, 
 186 U. S., 49, 68, affirming 113'Fed. Rep., 639.) 
 
 The consent of the accused can not confer 
 jurisdiction upon a court not possessing it by 
 virtue of statutory authority. (22 Op. Atty. 
 Gen., 137.) 
 
 By the articles of war it was provided that 
 "officers of the Regular Army shall not be com- 
 petent to sit on courts-martial, to try the officers 
 or soldiers of other forces," with an exception 
 referring to officers of the Marine Corps detached 
 for service v^ith the Army: Held, that the trial 
 of an officer of volunteers by a court-martial all 
 the members of which were officers of the 
 Regular Army was illegal, and the objec- 
 tion to it could be taken on habeas corpus. 
 (McClaughry v. Deming, 186 U. S., 49, affirming 
 113 Fed. Rep., 639.) 
 
 A court-martial is the creature of statute, and 
 must be convened and constituted in entire 
 conformity with the provisions of the statute, or 
 else it is without jurisdiction. As to the officer 
 to be tried, there was no court. No challenge 
 of the members was necessary, for there 
 was no court to hear and dispose of the 
 challenge. It is unlike an officer who might be 
 subject to challenge as under some bias. A 
 failure to challenge in such a case might very 
 well be held to waive the defect and the officer 
 could sit and the finding of the court-martial be 
 legal. In this case it is an objection that the 
 whole court as a court was illegally constituted, 
 because in violation of the express provision of 
 statute, and the challenge to the whole court is 
 not provided for by the statute. (McClaughry 
 V. Deming, 186 U. S., 49, affirming 113 Fed. 
 Rep., 639.) 
 
 Wliere a court is illegally constituted, none of 
 the members being competent to sit thereon, it 
 can not be said that the defendant waived the 
 question of inv-alidity by not objecting to being 
 tried by it. His consent could no more give 
 
 1018 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 40. 
 
 jurisdiction to the court, either over the subject 
 matter or over his person, than if it had been 
 composed of a like number of ci\'ilians or of 
 women or of privates. (McClaughry i'. Deming, 
 186 U. S., 49, 66, affirming 113 Fed. Rep., 
 639.) 
 
 The articles of war provided that ' ' officers of 
 the Regular Army shall not be competent to sit 
 on courts-martial to try the officers or soldiers of 
 other forces. ' ' A court-martial for the trial of a 
 volunteer officer was composed of five members 
 one of whom was an officer of the Regular Army 
 who also held a commission as an officer of vol- 
 unteers under which he was ser\ing at the time, 
 having been gi'anted indefinite leave of absence 
 from the Regular Army while so serving: Held, 
 that the language of the article is peremptory; 
 that the officer in question was not competent 
 to sit on a court-martial to try a volunteer officer; 
 and that, as without him there would have been 
 an insufficient number, there was no court and 
 the sentence of dismissal was void. (U. S. v. 
 Brown, 206 U. S., 240, affirming 41 Ct. Cls., 275. 
 Compare, Brown v. Root, 18 App. D. C, 239.) 
 
 Member of couxt as witness.— Where the 
 accused was tried and convicted by a general 
 court-martial on three distinct charges, one of 
 which had been preferred l:)y a member of the 
 court who testified as a witness in support of the 
 same and afterwards sat upon the trial, no objec- 
 tion being made thereto by the accused, and the 
 sentence of the court was duly confirmed, 
 held, that the fact that a member of the court sat 
 upon the trial after testifying did not render its 
 proceedings invalid or make its sentence void 
 and inoperative. (15 Op. Atty. Gen., 432.) 
 
 The objection, where it is not distinctly 
 waived by the accused, goes to the propriety of 
 the member sitting after he had testified, not 
 to his legal capacity to sit; and if seasonably 
 made it would afford good grounds for disap- 
 proval of the proceecUngs by the reviewing offi- 
 cer, though not of itself sufficient to invalidate 
 them. (15 Op. Atty. Gen., 432.) _ 
 
 For other cases see note to Constitution, sixth 
 amendment, under "IV. Impartial trial"; and 
 see Keyes v. United States (109 U. S., 336), 
 cited in note to article 53, A. G. N., under "Ju- 
 risdiction of ci\'il courts." 
 
 Art. 40. [Oaths of members and judge-advocate.] The president of the gen- 
 eral court-martial shall administer the following oath or affirmation to the 
 judge- advocate or person officiating as such: 
 
 "I, A B, do swear (or affirm) that I will keep a true record of the evidence 
 given to and the proceedings of this court; that I will not divulge or by any 
 means disclose the sentence of the court until it shall have been approved by 
 the proper authority; and that I will not at any time divulge or disclose the 
 vote or opinion of any particular member of the court, unless recjuired so to 
 do before a court of justice in due course of law." 
 
 This oath or affirmation being duly administered, each member of the court, 
 before proceeding to trial, shall take the following oath or affirmation, which 
 shall be administered by the judge-advocate or person officiating as such: 
 
 "I, A B, do swear (or affirm) that I will truly try without prejudice or par- 
 tiality, the case now depending, according to the evidence which shall come 
 before the court, the rules for the government of the Navy, and my own con- 
 science; that I will not by any means divulge or disclose the sentence of the 
 court until it shall have been approved by the proper authority; and that I 
 will not at any time divulge or disclose the vote or opinion of any particular 
 member of the court, unless required so to do before a court of justice in due 
 course of law."— (17 July, 1862, c. 204, s. 1, art. 12, v. 12, pp. 603, 604.) 
 
 Judge advocate. — See notes to sections 189 
 and 362, Re\'ised Statutes. 
 
 According to the law regulating courts- 
 martial the judge advocate is the official prose- 
 cutor; and in cases arising in the Navy he is, 
 by custom, either a naval officer specially des- 
 ignated or a lawyer employed for that purpose. 
 However, held, that where the case before the 
 court-martial is of such a character as to render 
 it expedient that the proceeding be conducted 
 by a lawyer, the Secretary of the Navy is not at 
 liberty to employ counsel, but should call upon 
 the Department of Justice to supply an officer 
 for the ser^ice. (13 Op. Atty. Gen., 514.) 
 
 The head of the Navy Department can not, 
 consistently with the provisions of section 17 
 of the act of June 22, 1870 (sec. 189, R. S.), 
 employ an attorney or counsellor at law to 
 conduct proceedings before a naA'al court- 
 martial. (14 Op. Atty. Gen., 13, affirming 13 
 Op. Atty. Gen., 515.) 
 
 Special counsel may be employed by the 
 Attorney General, at the request of the Secre- 
 tary of the Navy, to assist the judge advocate 
 in a trial by court-martial — the compensation 
 of such counsel (in the absence of other pro\d- 
 sion) to be paid from the appropriation for the 
 contingent expenses of the Navy. Such 
 
 54641°— 22- 
 
 -65 
 
 1019 
 
Sec. 1624, Art. 40. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 counsel should lie commissioned by the Attor- 
 ney General under section 366, Revised 
 Statutes. (18 Op. Atty. Gen., 135.) 
 
 A judge advocate need not be a professional 
 person. His qualifications must, of course, be 
 of the sort required by members of the bar, 
 but there is no law limiting choice of judge 
 advocates, or of their assistants when needed, 
 to that class. Although there is no statutory 
 provision in regard to naval judge advocates 
 like that for those of the Army, to the effect 
 that they shall belong to the Navy, yet in fact 
 this is generally the case. Such assistants for 
 judge advocates might be detailed from the 
 same branch of the service, or, indeed, specially 
 intelligent persons might be selected fi-om any 
 line of^civil life. (18 Op. Atty. Gen., 135, 137.) 
 
 Prosecutor; evidence; closing argu- 
 ment.^As to the right of a private prosecutor, 
 there is a diAcrsity between military and naval 
 courts-martial, the former allowing and the 
 latter rejecting it. (2 Op. Atty. Gen., 286.) 
 
 The judge advocate has the right of a reply 
 in a military trial, and so has the accuser when 
 acting as prosecutor; but such reply ought to 
 be a commentary on the evidence introduced 
 by the prisoner, and on his remarks in enforcing 
 it, or in arraigning the testimony offered in 
 support of the prosecution. No new matter 
 ought to be introduced at this stage of the trial 
 without the special leave of the court, and then 
 it should be supported by witnesses, and the 
 prisoner should be allowed to rejoin and remark 
 upon such new matter. Especially, the prose- 
 cutor ought not to be permitted, under color of 
 rephang to the prisoner's defense, to give addi- 
 tional testimony at this stage of the trial, and 
 by a statement of the facts made when the 
 prisoner has not the opportunity to cross- 
 interrogate him and which he hadi not made 
 when sworn as a mtness, to attempt to explain 
 or contradict what has been pre\'iou6ly given 
 in eA-idence. (2 Op. Atty. Gen., 286.) 
 
 After the officer upon whose information the 
 charges and specifications were preferred has 
 given his testimony before a naval court- 
 martial, he may be permitted to remain in 
 court as the prosecutor, to aid by his suggestions 
 the judge advocate in bringing out the evi- 
 dence. (3 Op. Atty. Gen., 714.) 
 
 There can be no doubt as to the competency 
 of the evidence of the prosecutor. How far 
 his credibility may be affected by the relation 
 in which he stands toward the accused is a 
 question of discretion for the court itself. (3 
 Op. Atty. Gen., 714.) 
 
 It is settled law in England that the prose- 
 cutor, after giving evidence, may remain in 
 court to conduct the prosecution. This, in the 
 absence of uniform practice to the contrary, is 
 the rule to be followed by our courts-martial. 
 C3 0p. Atty. Gen., 714.) 
 
 Irregularity in administering oaths. — 
 Where at the organization of a naval court- 
 martial each member of the court was first 
 sworn by the judge advocate, who was then 
 sworn by the president of the court, instead of 
 the oath being first administered by the presi- 
 dent to the judge advocate and then by the 
 latter to each member of the court, as pre- 
 scribed by the act of July 17, 1862 (12 Stat., 
 603, 604), which reversed the order required by 
 
 the previous act of April 23, 1800 (2 Stat., 50): 
 Held, that notwithstanding the irregularity in 
 the order of administering the oaths, the pro- 
 ceedings of the court must now be held valid. 
 (13 Op. Atty. Gen., 374.) 
 
 No objection appears to have been made at 
 the time. The accused submitted himself to 
 the jurisdiction of the court. The sentence of 
 dismissal was duly executed. The irregular- 
 ity was not so material as to render the whole 
 proceedings void, especially when no exception 
 was taken at the time. There are many sorts 
 of exceptions sustainable if taken at the time, 
 but which come too late after the completion 
 of the trial. Such is the case here. (13 Op. 
 Atty. Gen., 374.) 
 
 See note to article 53, A. G. N., as to irregu- 
 larities and fatal defects. 
 
 Judge advocate not sworn. — The ob- 
 jection that the judge advocate was not sworn 
 goes to the construction and organization of 
 the court. (3 Op. Atty. Gen., 396.) 
 
 Judge advocates of naval courts-martial are 
 required to be sworn; and where the proceed- 
 ings of such courts do not show that they were 
 it may be properly considered that the fact 
 does not exist and that they were not sworn; 
 and that therefore the proceedings were illegal 
 and void. (3 Op. Atty. Gen., 396: See note to 
 art. 52, A. G. N., as to omissions in record.) 
 
 The duties of the judge advocate are very 
 important; he is to keep the record of the 
 evidence given and the proceedings of the 
 court; and upon this evidence and the proceed- 
 ings as recorded by him the fate of the accused 
 is ultimately to be decided. His fidelity 
 should be secured by at least the usual sanc- 
 tions. In addition to which. Congress has 
 given the form of oath to be administered by 
 the president of the court to the judge advo- 
 cate before proceeding to trial. (3 Op. Atty. 
 Gen., 396.) 
 
 It is fatal error in proceedings before courts- 
 martial for the president to omit an oath or 
 affirmation to the judge advocate before pro- 
 ceeding to trial. (3 Op. Atty. Gen., 544.) 
 
 The articles for the government of the Navy 
 distinctly require that the president of every 
 court-martial shall administer a certain oath or 
 affirmation therein set forth to the judge ad- 
 vocate before proceeding to trial. The justice 
 and propriety of this, whether the prosecution 
 of the accused or his defense is considered, are 
 not less apparent than its necessity in point of 
 law. There is nothing whatever in the record 
 which gives reason to believe that this re- 
 quisition was complied with in the present 
 case. Accordingly, held that its omission is 
 fatal. (3 Op. Atty. Gen., 544.) 
 
 Objections were made to the action of a 
 court-martial in that, among other things, it 
 permitted a person to act as judge advocate 
 who was not appointed by the convening of- 
 ficer of the coiu't-martial nor sworn to the 
 faithful performance of his duty. Held, that 
 such questions were merely those of procedure, 
 and the court-martial having jurisdiction of the 
 person accused and of the offense charged, and 
 having acted within the scope of its lawful 
 powers, its proceedings and sentence can not 
 be reviewed or set aside by the civil courts. 
 (Swaim v. U. S., 165 U. S., 553, 561.) 
 
 1020 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 42. 
 
 See note to article 53, A. G. N., as to irregu- 
 larities and fatal defects; and note to article 
 52, A. G. N., under "Omission of record to 
 show jurisdictional facts." 
 
 Whether oath should be repeated in 
 each case. — See note to article 58, A. G. N., 
 as to courts of inquiry. 
 
 Where a general court-martial was convened 
 for the trial, generally, of such persons as 
 might be brought before it, but the warrant 
 for the court was accompanied with a speci- 
 fication of certain persons who were to be tried, 
 with a reference to the charges to be exhibited 
 against them, a renewed administration of the 
 oath was not necessary before the trial of an 
 officer so specially named. As to others, if the 
 action of the court in trying them without 
 reswearing the court conformed to the general 
 practice in the Navy, the proceedings may be 
 considered legal on the ground of such prece- 
 dents. If this practice is disapproved by the 
 department, it may be controlled prospec- 
 tively by an order enjoining the administra- 
 tion of the oath in each case. (2 Op, Atty. 
 Gen., 297.) 
 
 In the absence of any practice or precedent 
 upon the subject, it would appear that the 
 words of the law imply that the oath is to be 
 taken in every case; and the omission to do so 
 would render the proceedings invalid and 
 void. (2 Op. Atty. Gen., 460.) 
 
 If, however, it has been the usage of naval 
 courts-martial to take the oath but once, and 
 this practice has been sanctioned by the Gov- 
 
 ernment, such usage and practice should be 
 regarded as sufficient evidence of the con- 
 struction given to the law in question by the 
 proper authorities, and that the oath directed 
 to be taken was held by them to apply to all 
 cases that should come before the court. The 
 sentence, in that event, might be sustained on 
 the ground that the law in question had in like 
 cases received a construction to which the 
 court conformed in their proceedings. (2 Op. 
 Atty. Gen., 460.) 
 
 The whole question is one of form, and no 
 injustice is done by either interpretation. 
 For if the oath is in practice to be taken but 
 once, it must be on the ground that it applies 
 to all cases that may come before the court. 
 The accused has, therefore, upon this con- 
 struction, the same security and the same 
 hold on the conscience of the court that he 
 would have if the oath were taken in his 
 particular case. (2 Op. Atty. Gen., 460.) 
 
 Obhgation of secrecy. — The obligation 
 assumed under oath by the members of a naval 
 com-t-martial to keep secret the sentence of 
 the court is entirely removed, by the very 
 terms of the oath, when that sentence has been 
 approved by the proper authority; and even 
 the vote or opinion of any particular member 
 of the court may be divulged without a viola- 
 tion of duty when the party is required to dis- 
 close it before a court of justice in due course 
 of law. (11 Op. Atty. Gen., 137, 141.) 
 
 Responsibihty for correctness of rec- 
 ord. — See note to article 52, A. G. N. 
 
 Art. 41. [Oath of witness.] An oath or affirmation in the following form, 
 shall be administered to all witnesses, before any court-martial, by the presi- 
 dent thereof: 
 
 "You do solemnly swear (or affirm) that the evidence you shall give 
 in the case now before this court shall be the truth, the whole truth, and 
 nothing but the truth, and that you will state everything within your know- 
 ledge in relation to the charges. So help you God; (or Hhis you do under 
 the pains and penalties of perjury.')" — (17 July, 1862, c. 204, s. 1, art. 14, v. 
 12, p. 604.) 
 
 Compelling attendance of witnesses. — 
 See note to article 42, A. G. N. 
 
 Witness not properly sworn. — See note 
 to article 53, A. G. N., under "Irregularities and 
 fatal defects." 
 
 Art. 42. [Evidence; witnesses; perjury; contempt.] Whenever any person 
 refuses to give his evidence or to give it in the manner provided by these 
 articles, or prevaricates, or behaves with contempt to the court, it shall be 
 lawful for the court to imprison him for any time not exceeding two 
 months.— (17 July, 1862, c. 204, s. 1, art. 13, v. 12, p. 604.) 
 
 "Sec. 12. That any person duly subpoenaed 
 to appear as a witness before a general 
 court-martial or court of inquiry of the 
 Navy, who willfully neglects or refuses to 
 appear, or refuses to qualify as a witness 
 or to testify or produce documentary evi- 
 dence which such person may have been 
 legally subpoenaed to produce, shall be 
 deemed guilty of a misdemeanor, for 
 which such person shall be punished on 
 information in the district court of the 
 
 Amendment to this article was made by act 
 of February 16, 1909, sections 11 and 12 
 (35 Stat., 621, 622), as follows: 
 
 "Sec. 11. That a naval court-martial or court 
 of inquiry shall have power to issue like 
 process to compel witnesses to appear and 
 testify which United States courts of 
 criminal jurisdiction within the State, 
 Territory, or District where such naval 
 court shaU be ordered to sit may lawfully 
 issue. 
 
 1021 
 
Sec. 1624, Art. 42. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 United State?; and it shall be the duty of 
 the United States district attorney, on the 
 certitication of the facts to him by such 
 naval court, to file an information against 
 and prosecute the person so offending, and 
 the punishment of such person, on convic- 
 tion, shall be a fine of not more than five 
 hundred dollars or im])risonment not to ex- 
 ceed six months, or both, at the discretion 
 of the court: Provided, That this shall not 
 applv to persons residing beyond the 
 State, Territory, or District in which such 
 naval court is held, and that the fees of 
 such Avitnesses and his mileage at the rates 
 pro^ided for witnesses in the United States 
 district court for said State, Territory, or 
 District shall be duly paid or tendered 
 said -nitness, such amounts to be paid by 
 the Bureau of Supplies and Accounts out 
 of the appropriation for compensation of 
 witnesses: Provided farther, That no witness 
 shall be compelled to incriminate himself 
 or to answer any question w'hich may tend 
 to inciiminate or degrade him." 
 Perjury before naval general court-martial. — 
 See section 1023, Revised Statutes. See 
 also note to article 8, A. G. N., under 
 "Scandalous conduct tending to the de- 
 struction of good morals." 
 The use of depositions before naval coxirts- 
 martial was authorized by act of February 
 1(5, 1909, section 16 (35 Stat., 622). 
 Use of court of inquiry records in evidence 
 before courts-martial ; see article 60, A. G. N . 
 Compelling attendance of civilian wit- 
 nesses. — ^There was no law in 18-59 authorizing 
 an Army court-martial to compel the attendance 
 of -witnesses who were not in the military serv- 
 ice. (9 Op. Atty. Gen., 311.) 
 
 Section 2-5 of the sundry ci-vil appropriation 
 act of March 3, 1863 (12 Stat., 7-54), embodied in 
 section 1202, Re^^.sed Statutes, authorized 
 "every judge advocate of a court-martial or 
 court of inquiiy' ' to issue like process to compel 
 witnesses to appear and testify which courts of 
 criminal jurisdiction within the State, Terri- 
 tory, or District where such "military courts" 
 shall be ordered to sit may lawfully issue. 
 Held, that said enactment of 1863 did not apply 
 to naval courts-martial. The use of the words 
 "military courts" seems to limit the effect of 
 the act to courts-martial in the Army. (19 Op. 
 Atty. Gen., .501.) 
 
 Articles 42 and 57, A. G. N., do not apply to 
 ci\ilian witnesses. Nothing in the way of con- 
 trol by courts-martial over ciAalians is to be 
 taken in its favor by implication. (19 Op. 
 Atty. Gen., 501.) 
 
 A naval court-martial or judge advocate there- 
 of has no power to compel a civilian witness, 
 who is not subject to the Articles for the Gov- 
 ernment of the Navy, to appear and testify be- 
 fore such court. (19 Op. Atty. Gen., 501, Feb. 
 26, 1890.) 
 
 The act of ^Vlarch 3, 1863 (above noted), em- 
 powered the judge advocate of an Ai-my court- 
 martial to issue a vvrit of attachment, a perfect, 
 complete, and effective writ, to compel the at- 
 tendance of a civilian witness. An attachment 
 is directed to a sheriff or marshal and com- 
 mands him to have the party named therein 
 before the coiu-t, and differs from a subpoena 
 
 which is simply a summons addressed to wit- 
 nesses and may be served upon them by anyone 
 who is interested in their attendance. In issu- 
 ing an attachment to compel the attendance of 
 a civilian witness, the judge advocate may di- 
 rect such process to such officers as are, by prac- 
 tice of the service, ordinarily charged with the 
 duty of performing the executive business of 
 military courts. The process is not complete; it 
 is no process at all, unless directed to some one 
 by whom it is to be executed. (12 Op. Atty. 
 Gen., 501.) 
 
 Fees mvist be paid or tendered. — See act 
 of Februaiy 16, 1909, c^uoted above under this 
 article. 
 
 The act of March 2, 1901 (31 Stat., 950), which 
 provides that a person who, being duly subpoe- 
 naed to appear as a witness before a general 
 court-martial of the Anny , willfully neglects or 
 refuses to appear, or refuses to qualify as a wit- 
 ness, or to testify, or produce documentaiy evi- 
 dence which he'may have been legally subpoe- 
 naed to produce, shall be deemed guilty of a 
 misdemeanor, for which he may be punished on 
 information in the district court of the United 
 States, requires that the legal fees of such wit- 
 ness shall be first duly paid or tendered to him 
 at the time of service of the subpoena, in order 
 to lay the foundation for a prosecution under 
 that act. A mere statement in the subpoena, 
 signed by the judge advocate of the court- 
 martial, to the effect that the United States 
 tenders or guarantees the payment of the au- 
 thorized fees, is not a sufficient compliance with 
 that act to support a prosecution thereunder. 
 (23 0p. Atty. Gen., 424.) 
 
 As to witnesses' fees in general, see sections 
 848-851, Revised Statutes, and notes thereto. 
 
 Refusal to testify or produce docu- 
 ments.— Where a civilian witness was brought 
 before a court-martial of the Army, but refused 
 to testify, the court was not inv^ested with any 
 inherent power to punish the witness for con- 
 tempt. Such power can only be exercised 
 when given to it by the positive tenns of some 
 statute. The law (sec. 1202, R. S.) armed the 
 court with authority to compel the witness to 
 appear and testify, so far as this could be done 
 by process; but in securing his testimony the 
 coui-t was restricted to the means which it vv-aa 
 thus authorized to employ. It could not in- 
 flict any punishment where the power to impose 
 it was not clearly conferred by Congi-ess. (18 
 Op. Atty. Gen., 278.) 
 
 Where a civilian subpoenaed in accordance 
 with statute as a witness before an Army court- 
 martial was advised by competent counsel that 
 certain questions asked of him, if answered, 
 might subject him to a civil or criminal prose- 
 cution for libel; and for this reason he refused 
 to answer on advice of counsel, and not from 
 any evil intent or with legal malice, his refusal 
 did not constitute a violation of the statute. 
 (U. S. V. Praeger, 149 Fed. Rep., 474.) 
 
 Where a civilian witness refused to answer 
 certain questions because the answer might tend 
 to incriminate him, the decision of the court- 
 martial that the questions were proper was not 
 conclusive on the civil courts of the question 
 whether the witness was guilty of contempt in 
 refusing to answer. (U. S. r. Praeger, 149 Fed. 
 Rep., 474.) 
 
 1022 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 42. 
 
 Under the articles of war providing that a 
 court-martial may punish at its discretion any 
 person who uses any menacing words, signs, or 
 gestures in its presence, or who disturbs its pro- 
 ceedings by any riot or disorder, such court 
 has no final jurisdiction over a civilian sub- 
 poenaed to testify before it, or power to punish 
 him for contempt for refusing to testify. (U. 
 S. V. Praeger, 149 Fed. Rep., 474.) 
 
 Where a \vitnes3 subpoenaed to produce cer- 
 tain documents before an Army court-martial 
 testified that he had destroyed the documents 
 before service of the process, his failure to pro- 
 duce did not constitute a willful refusal to 
 produce such documents within the statute 
 making such act a misdemeanor. (U. S. v. 
 Praeger, 149 Fed. Rep., 474.) 
 
 Member of Congress as witness. — See 
 cases noted under Constitution, Article I, sec- 
 tion 6, clause 1. 
 
 Self-incrimination; requiring witness to 
 answer. — See note above, under "Refusal to 
 testify or produce documents " ; and see note to 
 Constitution, fifth amendment, under "III. 
 Compelling person to be witness against him- 
 self." 
 
 A cadet at the Military Academy was tried 
 by court-martial and found guilty of the 
 offense charged. At the trial a witness objected 
 to answering a question on the ground of self- 
 incrimination; but the court required him to 
 answer: Held, That if the court committed 
 error in compelling the mtness to answer, the 
 error is not such as to require disapproval of the 
 proceedings. Where the right of a witness is 
 violated, it is for him to complain and not the 
 defendant. (17 Op. Atty. Gen., 616; see note 
 to art. 53, A. G. N., as to effect of irregularities.) 
 
 Depositions. — Witnesses who were not in 
 military service could not be compelled in ] 859 
 to make depositions to be used in evidence 
 before courts-martial on the trial of cases not 
 capital. (9 Op. Atty. Gen., 311.) 
 
 An officer about to be put upon trial before a 
 naval court-martial consented that the deposi- 
 tion of witnesses abroad, taken iipon inter- 
 rogatories and cross-interrogatories, should be 
 used on the trial. Held, That the rule of law 
 that no evidence shall be given against a pris- 
 oner except in his presence is a personal priv- 
 ilege which he may waive; and that it was 
 waived by the officer in this case; the point of 
 time at which his consent was expressed will 
 not affect the competency of the testimony; 
 but suggested that it might be well to have such 
 waiver in writing, after the arrest and after the 
 order convening the court. (1 Op. Atty. Gen., 
 706.^ 
 
 It would not be competent for an ofiicer of 
 the Navy, under arrest, and the Navy Depart- 
 ment to dispense with the attendance of wit- 
 nesses before a naval court-martial and by 
 common consent to take depositions to be used 
 on the trial, when objected to by the officer 
 preferring the charges. (2 Op. Atty. Gen., 
 343.) 
 
 The 37th article of the Articles for the Gov- 
 ernment of the Navy (act Apr. 23, 1800, 2 
 Stat., 50\ requiring that "all testimony given 
 to a general court-martial shall be on oath 
 or affirmation," etc., seems to contemplate ex- 
 clusively the examination of witnesses before 
 
 the court. The articles of war, pro\'iding that 
 under certain restrictions and in cases not 
 capital depositions may be taken for use before 
 Army courts, negatives their allowance in other 
 cases; and the existence of the provision suffi- 
 ciently proves that mthout it such testimony 
 would not be competent even in those minor 
 cases. (2 Op. Atty. Gen., 343. Compare note 
 toart. 60, A. G. N.) 
 
 See note to Constitution, sixth amendment, 
 under "VI. Confronting witnesses." 
 
 The use of depositions before naval courts in 
 certain cases and under certain restrictions was 
 authorized by act of February 16, 1909, section 
 16 (35 Stat., 622). 
 
 Absent witness.— See note to Constitution, 
 sixth amendment, under "VI. Confronting 
 witnesses;" and see note to article 57, A. G. N. 
 
 Copies of papers in evidence. — See section 
 882, Re\'ised Statutes, and note thereto; see also 
 note toart. 34, A. G. N. 
 
 The introduction in evidence of copies of 
 letters on file in the Department of the Navy at 
 Washington, and which are required by law to 
 be kept there, and which were not authenti- 
 cated under the seal of the department, was 
 error. Copies so authenticated would have 
 been as admissible as the originals; copies not 
 so authenticated were not as admissible as the 
 originals. (Cohn v. U. S., 258 Fed. Rep., 
 355.) _ 
 
 It is not understood that copies of official 
 papers on file in an executive department ■ an 
 be received in evidence only when they are 
 authenticated under the seal of the department; 
 but if copies not authenticated as provided by 
 section 882, Revised Statutes, are to be intro- 
 duced in e\'idence, it is certainly necessary 
 that a proper foundation for their admission 
 should be laid, ha\dng in mind the general rule 
 that no evidence shall be received which pre- 
 supposes that the party who offers it can obtain 
 better evidence. (Cohn v. U. S., 258 Fed. 
 Rep., 355.) 
 
 Papers illegally seized as evidence. — 
 See notes to Constitution, fourth amendment, 
 and fifth amendment under "III. Compelling 
 person to be witness against himself. " 
 
 The fact that certain private papers belong- 
 ing to the accused may have been illegally 
 seized by the authorities and illegally retained 
 against his protest would not render their use 
 in evidence against him unlawful. (22 Op. 
 Atty. Gen., 589, 597, 598.) 
 
 The admission in evidence over and against 
 the objection of the accused of a paper belong- 
 ing to him which was abstracted by the Gov- 
 ernment from his possession, -without his 
 knowledge or consent, compels him to be a 
 Avitness against himself in violation of the fifth 
 amendment to the Constitution. (Gouled v. 
 U. S., 255 U. S., 298.) 
 
 Where in the progress of a criminal trial it 
 becomes probable that there has been an uncon- 
 stitutional seizure of papers of the accused, it 
 is the duty of the trial court to entertain an 
 objection to their admission in e\ddence against 
 him, or a motion for their exclusion, and to 
 decide the question as then presented, even 
 where a motion to return the papers has been 
 denied before trial and bv another judge. 
 (Gouled V. U. S., 255 U. S.,"298.) 
 
 1023 
 
Sec. 1624, Art. 42. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 The seizure of documents belonging to an 
 Army officer charged with an offense, from his 
 desk, to which he vohintarily turned over the 
 key, held not a violation of his constitutional 
 riglbts, whether or not the documents were 
 used on his trial by court-martial. (U. S. v. 
 Barry, 260 Fed. Rep., 291.) 
 
 Evidence of handwriting. — By act of 
 February 26, 1913 (37 Stat., 683), it is provided 
 that "in any proceeding before a court or 
 judicial officer of the United States where the 
 genuineness of the handwriting of any person 
 may be involved, any admitted or proved 
 hand^^n•iting of such person shall be competent 
 evidence as a basis for comparison by witnesses, 
 or by the jury, court, or officer conducting such 
 proceeding, to pro^•e or disprove such genuine- 
 ness." 
 
 A knowledge of the hand^vriting of a defend- 
 ant charged with forgery, by a witness who is 
 not an expert, does not qualify such witness to 
 state his opinion whether or not the forged 
 signature, made.in imitation of the handwriting 
 of another, was written by defendant. (Neall 
 V. U.S., 118 Fed. Rep., 699.) 
 
 Evidence of handwriting by comparison of 
 hands is inadmissible on a trial by court- 
 martial, excepting where the writing acknowl- 
 edged to be genuine is aheady in evidence in 
 the case or the disputed writing is an ancient 
 document. It was, therefore, error for the 
 court-martial to admit in evidence a consider- 
 able number of papers which were not in evi- 
 dence for any other purpose than to be used as 
 such standards and which were so used by 
 experts. In view of the error so made by the 
 court, its sentence should be set aside on re- 
 view of its proceedings by the Secretary of 
 War. (17 Op. Atty. Gen., 310. But see act of 
 Feb. 26, 1913, above quoted, which was enacted 
 after this opinion.) 
 
 General rules of evidence before courts- 
 martial. — EngHsh wiiters on this subject 
 insist upon the propriety in trials before naval 
 and military courts-martial of adhering to the 
 rules of evidence established for the common- 
 law courts of criminal jurisdiction. (2 Op. 
 Atty. Gen., 343.) 
 
 General courts-martial are governed by the 
 same rules of evidence which govern the ordi- 
 nary courts of criminal jurisdiction. These 
 rules, where not prescribed by statute, are sup- 
 plied by the common law. (17 Op. Atty. Gen., 
 310.) 
 
 See below under "Character evidence"; see 
 sections 859-906, Revised Statutes, and notes 
 thereto, as to evidence in civil courts of the 
 United States; and see notes to Constitution, 
 fifth and sixth amendments. 
 
 Character evidence. — The "System of 
 Orders and Instructions" for the Navy, issued 
 by the President December 15, 1853, is without 
 legal validity and in derogation of the powers 
 of Congress. In tliis "System" articles appear 
 on the subject of coui'ts-martial which are in 
 pari materia with provisions of the acts of Con- 
 gress, and are in effect abrogatory or amenda- 
 tory of the same as plainly as a new act of Con- 
 gress could be. Again, one of the articles in 
 the same chapter changes the whole theory of 
 judicial procedure by forbidding the court to 
 receive evidence of previous good character 
 
 and former services of the accused in mitigation 
 of the punishment to be awarded. This provi- 
 sion, which is the more observable when com- 
 pared VN-ith another article which allows evi- 
 dence to be introduced of previous bad char- 
 acter, maj^ or may not be wise; it is, at any rate, 
 a very positive act of legislation beyond the 
 power of the President. (6 Op. Atty. Gen., 
 10, 18. See note to art. 45, A. G. N., as to pro- 
 cedure of courts-martial; sees. 161 and 1547, 
 R. S., as to regulations in general; and note to 
 art. 43, A. G. N., under "Charging offenses 
 not specifically provided for.") 
 
 Evidence after plea of guilty.— Courts- 
 martial may, and it is their duty to, receive 
 such testimony as the judge advocate may 
 offer for the purpose of illustrating the actual 
 degree of the offense, not-withstanding that the 
 party accused shall have pleaded guilty, if the 
 punishment shall be discretionary, and espe- 
 cially where the discretion includes a vnde 
 range and great variety of punishments, and if 
 the specifications do not show all the circiun- 
 stances. In all cases subject to a discretionary 
 punishment a full knowledge of the circum- 
 stances attending the offense is essential to an 
 enlightened exercise of discretion by the court 
 measuring the punishment; and where a formal 
 trial is rendered unnecessary by a plea of guilty, 
 it is only by affidavits or other incidental evi- 
 dence that they can obtain that knowledge. 
 (2 Op. Atty. Gen., 636.) 
 
 In a case where several of the specifications 
 were quite general and the punishment was not 
 definitely prescribed, but, on the contrary, a 
 wide discretion was allowed, held that, upon 
 general principles and in reference to the 
 analogies furnished by the proceedings in civil 
 tribunals, the court-martial erred in excluding 
 the evidence offered by the judge advocate 
 after a plea of guilty; and as they proceeded to 
 impose the highest penalty in their power 
 this error involves a serious violation of prin- 
 ciple. (2 0p. Atty. Gen., 636.) 
 
 AdmissibiLity of evidence; decision of 
 court-martial. — It is not the official duty of 
 the Secretary of War to give to the judge advo- 
 cate, and thus to the court-martial, an opinion 
 as to the admissibihty of certain evidence in the 
 trial of a case before the court; nor as to the 
 construction of a statute. Such questions 
 should be left to the decision of the court-mar- 
 tial itself. (17 Op. Atty. Gen., 54.) 
 
 Objections were made to the action of a coui't- 
 martial in that, among other things, it received 
 oral and secondary evidence of an account, 
 when books of original entiy were available; 
 received evidence to implicate the accused in 
 signing false certificates relating to money 
 which formed no part of the subject matter of 
 the charges on trial ; refused to permit evidence 
 as to the bad character of a principal witness 
 for the prosecution, and refused to hear the 
 testimony of a material witness for the defense : 
 Held, that the errors so assigned could not be 
 reviewed collaterally in a civil suit by the ac- 
 cused for the pay of his office; such questions 
 were merely those of procedure, and the court- 
 martial, having jurisdiction of the person ac- 
 cused and of the offense charged, and having 
 acted within the scope of its lawful powers, its 
 proceedings and sentence can not be reviewed 
 
 1024 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 43. 
 
 or set aside by the civil courts. (Swaim v. 
 U. S., 165 U. S., 553, 561; see note to art. 53, 
 A. G. N., as to irregularities and fatal defects.) 
 
 Evidence in conspiracy cases. — See note to 
 article 14, A. G. N. 
 
 False testimony before courts-martial. — 
 See note to article 8, A. G. N., under " Scandal- 
 ous conduct tending to the destruction of good 
 morals"; and see section 1023, Re^'ised Stat- 
 utes, as to prosecutions for perjury before naval 
 general courts-martial. 
 
 Expert witnesses. — See notes to section 848, 
 Re\'ised Statutes; Constitution, sixth amend- 
 ment, under "VII. Compulsory process for ob- 
 taining witnesses " ; section 1451, Ile\ised Stat- 
 utes, under "Evidence in line of duty cases"; 
 and article 59, A. G. N., under "Experts." 
 
 A witness is one who may be compelled to 
 testify concerning a transaction which he has 
 fortuitously beheld ; an expert is one who testi- 
 fies as to his own self-acquired knowledge, 
 which he can not be compelled to impart by the 
 expedient of calling him as a witness. (Smith 
 V. U. S., 24 Ct. Cls., 209.) 
 
 The Government can not acquire the services, 
 skill, or knowledge of an expert without his con- 
 sent and without j ust compensation . ( Smith v . 
 U. S.,24Ct. Cls.,209.) 
 
 The emplo\Tnent of experts before a court- 
 martial is -within the legal and proper discretion 
 of the Secretary of War; and his order to employ 
 aad pay them is official authority to an officer 
 
 Art. 43. [Charges and specifications; arrest of accused.] The person 
 accused shall be furnished with a true copy of the charges, with the specifica- 
 tions, at the time he is put under arrest; and no other charges than those so 
 furnished shall be urged against him at the trial, unless it shall appear to the 
 court that intelligence of such other charge had not reached the officer order- 
 ing the court when the accused was put under arrest, or that some witness 
 material to the support of such charge was at that time absent and can be 
 produced at the trial; in which case reasonable time shall be given to the accused 
 to make his defense against such new charge. — (17 July, 1862, c. 204, s. 1, 
 art. 15, V. 12, p. 604.) 
 
 who in the ordinary discharge of his duty makes 
 such payments, and protects him from the sum- 
 mary remedy of ha\'ing his pay stopped. 
 (Smith t'. U. S., 24 Ct. Cls., 209.) 
 
 What are termed experts are not necessarily 
 or properly witnesses. Their office may be sim- 
 ply to aid in the preparation of a case without 
 being called to testify, and they are frequently 
 employed to aid counsel in the cross-examina- 
 tion of witnesses. In the complexities of mod- 
 ern ciAdUzation they are constantly resorted to 
 in all courts, chU and criminal. (Smith v. 
 U. S., 24 Ct. Cls., 209.) 
 
 All persons in the com'se of ordinary life are 
 liable to witness transactions, or casualties, or 
 crimes of their fellow men. In such cases, pub- 
 lic necessity requires that they may be com- 
 pelled to testify. The burden of doing so must 
 be borne by him on whom it falls, and the 
 chance is a chance which may fall upon any 
 member of the community. A siugeon walk- 
 ing down the street and witnessing an accident 
 or murder may describe the injiuies of the \dc- 
 tim more clearly than an ordinary beholder. 
 But he is not an expert; he is merely the fortui- 
 tous witness of an occurrence concerning which 
 he mav be made to testify. (Smith v. U. S., 
 24Ct. Cls., 209.) 
 
 For other cases see note to article 45, 
 A. G. N., as to receiving evidence while court is 
 cleared, and as to evidence of insanity. 
 
 "Arrest" construed. — Upon considera- 
 tion of articles 24, 43, and 44, A. G. N., held 
 that there may be two arrests, namely (1) an 
 aiTest in an emergency or upon discovery of 
 the alleged wrongdoing, with a view to a pre- 
 liminary examination, and, if necessary, the 
 formiilation and specification of charges; and 
 (2) an aiTCst for trial. Held, further, that 
 article 43, in the provision declaring that ' ' the 
 person accused shall be furnished %vith a true 
 copy of the charges, mth the specifications, 
 at the time he is put under arrest," has refer- 
 ence to the arrest for trial and not the arrest in 
 the first instance. (19 Op. Atty. Gen., 472; 
 see art. 44, A. G. N., referring in terms to the 
 arrest "for trial.") 
 
 Article 43, A. G. N., refers to the arrest of 
 the accused for trial by court-martial, and not 
 toanypreviousarrest, either by way of punish- 
 ment or to await the action of a court of inquiry. 
 If he is already in custody to await the result 
 of a court of inquiry, this article is sufficiently 
 
 complied with by delivering a copy to him 
 immediately after the Secretary of the Navy 
 has informed lum of that result and has ordered 
 a court-martial to convene to try him. Being 
 already in custody to await the result of a 
 court of inquiry, he could not be considered 
 as put under arrest for trial by court-martial 
 before the Secretary of the Naw had informed 
 him of the report of the court of inquiry and 
 had ordered a court-martial to convene to try 
 him. Immediately after that, and four days 
 before the court-martial met, the accused in 
 this case was furnished with a copy of the 
 charge and specification on which he was to be 
 tried. This was a sufficient compliance -ivith 
 the article in question. (Johnson v. Sayre, 
 158 U. S., 109, 117.) 
 
 Under the Articles for the Government of 
 the Navy, the provision as to ser\ice of charges 
 upon the accused at the time he is put under 
 arrest refers not to the temporary arrest neces- 
 sary for order and discipline at the time of the 
 
 1025 
 
Sec. 1624, Art. 43. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 commission of the offense, but to the sub- 
 sequent arrest for trial by court-martial. 
 (Bishop V. U. S., 197 U. S., 334.) _ 
 
 The word "arrest" as employed in article 43 
 A. G. N., does not relate to the preliminary 
 arrest or detention of an accused person await- 
 ing; the action of higher authority to frame 
 changes and specifications and order a court- 
 martial, but to the arrest resulting from pre- 
 fening the charge by the proper authority and 
 the convening of a' court-martial. (U. S. v. 
 Smith, 197 U. S., 386, appro\dn^, 19 Op. Atty. 
 Gen., 472; Johnson v. Sayre, 158 U. S., 109; and 
 Bishop V. U. S., 197 U. S., 334.) 
 
 Both the spirit and the letter of the Articles 
 for the Government of the Navy require that 
 a copy of such charges and specifications be 
 furnished \\dthin a reasonable time after the 
 first arrest; and what would be such reason- 
 able time would depend on the circumstances 
 of each case. However, if they were not 
 furnished M-ithin a reasonable time, or if the 
 con^'ening of the coml-martial were too long 
 delayed, such would seem to be objections 
 going only to the regularity of the proceedings 
 and not to the jurisdiction of the coiut. (19 
 Op. Atty. Gen., 472, 476.) 
 
 Waiver of objection by the accused. — 
 \Miere the record of a court-martial shows that 
 the accused stated at the beginning of the trial 
 that he had received a copy of the charges and 
 specifications against him, but it does not 
 appear that such copy was served upon him 
 at the time of his arrest, and no objection on 
 that ground was made at the trial, it will be 
 presumed that they were served as required 
 bv the statute. (In re Grain, 84 Fed. Ilep., 
 789.) 
 
 It is at least doubtful whether the objection 
 (that the accused did not receive a true copy 
 of the charge and specification at the time he 
 was put under arrest) did not come too late, 
 after he had admitted before the court-martial 
 that he had received a copy of the charge and 
 specification, and after objections to the 
 jurisdiction of the court, and to the form of the 
 accusation, had been overruled and he had 
 pleaded not guilty and the CAadence of the 
 United States had been introduced. (John- 
 son V. Sa>Te, 158 U. S., 109, 117.) 
 
 Whether an objection as to the lateness of 
 service of specifications is jurisdictional and 
 can be collaterally inquired into, where such 
 objection was not made at the trial, not de- 
 cided. (U. S. V. Smith, 197 U. S., 386, 391.) 
 
 Had the court been regularly and legally 
 organized, the fact of its not appearing on the 
 record that the prisoner had been furnished 
 with a copy of charges or been asked if he had 
 any objection to the members of the court 
 might not be sufficient cause for setting aside 
 the proceedings. If any injustice was done 
 to the accused in these particulars, he should 
 make the question before the court and in 
 that way make it appear on the face of the 
 proceedings. (3 Op. Atty. Gen., 396, holding 
 the proceedings illegal in this case because the 
 court was not legally organized.) 
 
 See note to article 53, A. G. N., as to irregu- 
 larities and fatal defects; and note to article 52, 
 A. G. N., under "Omission of record to show 
 jurisdictional facts." 
 
 Arrest of officer while on bail. — Full 
 power is po.ssessed by the Secretary of the Navy 
 to cause the arrest of any officer of the Navy 
 charged with the commission of crime and to 
 have him l)r()ught before a naval court-martial 
 for trial. (21 (:)p. Atty. Gen., 504.) 
 
 Where a disbursing officer of the Navy has 
 been arrested by the cIat.! authorities of the 
 United States for embezzlement and misappro- 
 priation of public funds, and released on bail, 
 the Attorney General will not instruct a United 
 States attorney, at the request of the Secretary 
 of the Navy, to cause the arrest of the officer by 
 the United States marshal, as it would be both 
 unnecessary and improper to cause the arrest 
 of the said naval officer by the civil officers of 
 the Government in order that he might be tried 
 before a naval court-martial, while adequate 
 power resides in the Secretary of the Navy to 
 arrest and confine him and bring him before 
 such court-martial for trial. (21 Op. Atty. 
 Gen., 504.) 
 
 See note to Constitution, fourth amendment, 
 under "Arrest of military offenders"; and see 
 note to Constitution, Article I, section 8, clause 
 14, under "Jurisdiction of courfe-martial," 
 subheading "Persons in constructive custody 
 of ciA'il courts." 
 
 "Charge" and "specification" ex- 
 plained. — In the American serA-ice the cus- 
 tom is to present a "charge" so called, in gen- 
 eral terms indicatiA^e of the offense imputed, 
 as "desertion," "disobedience of orders," 
 "mutiny," or "conduct unbecoming an officer 
 and a gentleman," and to subjoin a "specifica- 
 tion" or "specifications," in which are set 
 forth the particular facts w^hich it is conceiA-ed 
 by the party preferring the accusation, or by 
 the authority ordering the trial, constitute the 
 offense designated in the "charge." In the 
 British service, on the other hand, there is no 
 distinction between the "charge" as such and 
 the "specification." Each separate fact or set 
 of facts constituting the matter of accusation is 
 set forth in a distinct charge, cA'en though there 
 should be a plurality of subjects of charge each 
 one importing a A'ariety of the same offense, 
 and therefore susceptible of classification under 
 general heads of charge. (7 Op. Atty. Gen., 
 601.) 
 
 Our practice has couA^enience in many cases. 
 If the crime be of a genus which has but one 
 species, as "sleeping on post," then the 
 "charge" is in general but a title, as it were, to 
 the "specification"; but eA'en in such a case 
 there may be a plurality of acts of the same 
 offense, Avhich it is proper to charge, although 
 if proved to be followed by but one possible 
 sentence for all the acts. (7 Op. Atty. Gen., 
 601.) 
 
 But where the offense is of a genus compre- 
 hending many species, the convenience of 
 classification under general heads of charge is 
 apparent. Still more is that conA'enience 
 manifest when the accusation is of a plurality 
 of offenses, as "disobedience of orders," 
 "neglect of duty," and "mutiny," and there is 
 a plurality of acts of each offense. Then it is 
 clear to see how our practice tends not only to 
 methodize the proceedings, but, what is more 
 important, to methodize the elements of deci- 
 sion in the minds of the triers and of the supe- 
 
 1026 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 43. 
 
 rior authority which is to approve or disapprove 
 their final action. (7 Op. Atty. Gen., 601.) 
 
 The law governing Army courts-martial is 
 found in the statutory enactments of Congress, 
 particularly in the articles of war, in the Army 
 regulations, and in the customary military law. 
 According to military usage and practice, the 
 charge is in effect di\ided into two parts, the 
 first technically called the "charge" and the 
 second the "specification." The charge proper 
 designates the military offense of which the 
 accused is alleged to be guilty; the specifica- 
 tion sets forth the acts or omissions of the 
 accused which form the legal constituents of 
 the offense. (Carter v. McClaughry, 183 U. S., 
 365, 386.) 
 
 Sufficiency of charges; technical aver- 
 ments. — If the description of the offense is 
 sufficiently clear to inform the accused of the 
 military offense for which he is to be tried, and 
 to enable him to prepare his defense, it is suffi- 
 cient. Hence a charge which uses the word 
 "inebriation" is sufficient under the articles of 
 war which use the technical word ' ' drunken- 
 ness," although it would certainly have _ been 
 more formal to use the teim which is used in the 
 articles of war. (1 Op. Atty. Gen., 294.) 
 
 The writers on military law require minute- 
 ness and precision in specifying the time, 
 "whenever it is possible to be thus particular" ; 
 but they all agree that this minuteness and pre- 
 cision are not always within the reach of the 
 prosecutor; hence they allow him a latitude in 
 the statement of the time, and examples cited 
 by them permit a range of three months as to 
 the laying of the time. This latitude is not 
 allowable in covu"ts of civil jurisdiction. (1 Op. 
 Atty. Gen., 294.) 
 
 A specification of charge is good and will sup- 
 port the finding and sentence upon it, with or 
 without descriptive designation of the quality 
 of the imputed criminal act, provided it appear 
 that the facts alleged and proved constitute in 
 any point of \dew the offense charged. (7 Op. 
 Atty. Gen., 601.) 
 
 Under a charge of "conduct unbecoming an 
 officer and a gentleman," the specifications al- 
 leged that the accused did certain acts, and 
 concluded, "all which was an abuse of his trust, 
 a violation of his public duty, and was conduct 
 unbecoming an officer and a gentleman." The 
 court, in its findings upon the specifications, 
 excepted the words quoted ; but found the ac- 
 cused guilty upon the charge. Held, that what 
 remained of each specification, after the excep- 
 tions made by the court, although less full and 
 explicit than the whole original specification, 
 yet plainly appears on careful inspection of the 
 matter to be competent to justify the finding 
 and to sustain the charge; that the words ex- 
 cepted were words of description, merely; and 
 that the proceedings were therefore valid. 
 Held, further, that while the words excepted by 
 the court were not words of necessary insertion 
 in specifications, neither were they words of 
 necessary exclusion therefrom; that while a 
 specification is maintainable without the words 
 excepted, so it is with them; that the words 
 were descriptive of the facts alleged; that the 
 practice of including such words is well sus- 
 tained by practice as by principle; that par- 
 ticularity of description would seem to be in 
 
 the interest of the party accused as well as the 
 service. Suggested, that to prevent exception 
 in future cases, the very words of the charge be 
 employed as the concluding or commencing 
 words of specifications, and that such expres- 
 sions of qualification as the natiure of the facts 
 may require and justify be incorporated in the 
 narrative part of the specification. (7 Op. 
 Atty. Gen., 601.) 
 
 Certain it is that charges and specifications 
 for trial by court-martial do not need to possess 
 the technical nicety of indictments at common 
 law. Trials by court-martial are governed by 
 the nature of the service, which demands in- 
 telligible precision of language, but regards the 
 substance of things rather than their form; 
 which eschews looseness or confusion in all 
 things, but reflects that military administra- 
 tion must be capable of working in peace, it is 
 true, but more especially amid the privations 
 and the dangers of war. Hence, undoubtedly, 
 the most bald statement of the facts alleged as 
 constituting the offense, provided the legal 
 offense itself be distinctively and accurately 
 described in such terms of precision as the rules 
 of military jurisprudence require, will be ten- 
 able in court-martial proceedings and will be 
 adequate gi'ound work of conviction and sen- 
 tence. (7 Op. Atty. Gen., 601.) 
 
 All the technicalities which have been ap- 
 plied to common-law indictments are not re- 
 quired in specifications in court-martial pro- 
 ceedings. Here it is sufficient if the facts con- 
 stituting the offense be described with such cer- 
 tainty as to clearly inform the accused of his 
 alleged misconduct and the offense with which 
 he is charged. (28 Op. Atty. Gen., 286, 
 292.) 
 
 In cases where a fraudulent or criminal inten- 
 or knowledge upon the part of the accused may 
 be necessary to constitute the offense, it would 
 not be necessaiy to specifically declare their 
 presence in the specification of a charge to be 
 tried by a naval court-martial; their absence 
 would be a matter of defense. (28 Op. Atty. 
 Gen., 286, 292.) 
 
 A charge of assault with a ilfie and the inflic- 
 tion of a mortal wound by accused upon a fellow 
 soldier, with particulars of time and place clear- 
 ly stated, sufficiently alleged an offense within 
 the article of war providing for the trial and 
 punishment of all crimes not specified in the 
 foregoing articles (see art. 22, A. G. N.). The 
 charge and specification did not accuse the 
 prisoner of any willful or felonious act, but the 
 facts alleged constituted an offense cognizable 
 by court-martial. (In re Stubbs, 133 Fed. 
 Rep., 1012.) 
 
 It would be extremely absm'd to expect the 
 same precision in a charge brought before a 
 court-martial as is required to support a con- 
 \-iction by a justice of the peace. (See Smith 
 V. Whitney, 116 U. S., 167, 185.) 
 
 The pleading need not possess the technical 
 nicety of an indictment as at common law. 
 (Carter v. McClaughiy, 183 U. S., 365, 386, 
 citing 7 Op. Atty. Gen., 604.) ■ 
 
 See note to article 8, A. G. N., as to form of 
 charge and specification for "scandalous con- 
 duct tending to the destruction of good morals. ' ' 
 
 See note to article 14, A. G. N., as to charge 
 I and specification for embezzlement. 
 
 1027 
 
Sec. 1624, Art. 43. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Charging offenses not specifically pro- 
 vided for. — The "Orders, Regulations, and 
 Instructions for the Administration of Law and 
 Justice in the United States Navy," issued by 
 the Secretary of the Navy, under authority of 
 the President, in 1870, pro\dded, in section 126 
 thereof, that when a charge "comes directly 
 under any enactment it should be set forth in 
 the terms used therein"; and in section 127, 
 that "when the offense is a disorder or neglect 
 not specially proxdded for, it should be charged 
 as 'scandalous conduct tending to the destruc- 
 tion of good morals.' " Section 1547 of the Re- 
 vised Statutes is a legislatiA^e recognition of the 
 Na^y Regulations of 1870, and "must be 
 understood as giAing to these regulations the 
 sanction of the law." (Smith v. Whitney, 116 
 U. S., 167, 180; see also notes to articles 8 and 
 22, A. G. N.; compare note to art. 42, A. G. N., 
 under "Character eA-idence"; and see note to 
 Art. 45, A. G. N.) 
 
 Description of accused in charges. — 
 WTiere a naval court-martial tried a master-at- 
 arms for desertion on a charge headed with a 
 caption styling the accused, "master-at-arms," 
 and discharged him on the ground that since 
 his arrest he had not been borne on the ship's 
 books as such, held that the decision was errone- 
 ous, and that the grounds stated were insuffi- 
 cient to deter the court from proceeding to 
 judgment on the merits. (3 Op. Atty. Gen., 
 5487) 
 
 In this case the accused pleaded guilty to a 
 charge of desertion. The court, notwithstand- 
 ing the plea, proceeded to hear the eAddence 
 produced by the judge advocate. And the 
 accused questioned both the witnesses in his 
 behalf, offering no objection at any time to the 
 proceedings. Held, (1) that the error in the 
 designation of the accused was not made in the 
 charge and specification on which he was tried, 
 but merely in the general heading thereto; 
 (2) that it was admitted that the accused was 
 master-at-arms when the offense alleged in the 
 charge was committed, and there was no con- 
 clusive proof that he had been dismissed from 
 that rank when the charge was preferred; (3) 
 that supposing this, however, to have been 
 clearly established, yet the facts of his ha\dng 
 pleaded to the charge, of his never haAang in 
 any way made such an exception or defense, 
 and of their being no dispute whatever as to the 
 identity of the person, would have prevented 
 the accused himself from taking advantage of 
 the error at this stage of the case; and, of 
 course, it afforded no ground for the court to 
 refuse to proceed to judgment on the merits. 
 (3 0p. Atty. Gen., 548.) 
 
 A midshipman was nominated and confirmed 
 in March, 1868, to be an ensign, the promotion 
 being made "subject to examination." In 
 July, 1868, having never been examined, he 
 was tried by a naval court-martial as a mid- 
 shipman and sentenced to dismissal from the 
 service. Held, that under the circumstances 
 he was properly tried as a midshipman. (16 
 Op. Atty. Gen., 550; see note to Art. 54, A. 
 G. N., as to promotion of officer under charges.) 
 
 Amendment of charges. — In a trial by 
 court-martial the charges can not be so 
 amended after arraignment as to entirely ob- 
 literate the original specifications and insert 
 
 new ones describing wholly different offenses; 
 hence, where the prisoner, pending his trial by 
 court-martial, seeks relief from a civil court l)y 
 habeas corpus, and the charges are found to be 
 wholly insufficient to show jurisdiction in the 
 court-martial, a discharge will be granted. (Ex 
 parte Henderson, 11 Fed. Cas. No. 6.349.) 
 
 Sufficiency of charges question for 
 court-martial. — \Vhere a charge against a 
 person tried by a military court is within the 
 court's jurisdiction, and is authorized by the 
 Army or Navy regulations, the manner of set- 
 ting out the offense is a matter of pleading, 
 rather than jurisdiction, the sufficiency of 
 which is for the exclusive determination of the 
 court-martial. (Ex parte Dickey, 204 Fed. 
 Rep., 322.) 
 
 Joinder of charges. — There is no objection 
 to the joinder of separate and incongruous 
 charges in the same prosecution before a court- 
 martial, as such is permitted by the military 
 usage and procedure. (22 Op. Atty. Gen., 
 589.) _ 
 
 Unlike the ordinary criminal procedure, 
 when but one indictment, setting forth in one 
 or more counts a single offense or connected 
 criminal transaction, is in general brought to 
 trial at one time, the military usage and pro- 
 cedure permit of an indefinite number of 
 offenses being charged and adjudicated to- 
 gether in one and the same proceeding. (22 
 Op. Atty. Gen., 589, 595.) 
 
 With a view to the summary and final action 
 so important in military cases, whenever an 
 officer or soldier has been apparently guilty of 
 several or many offenses, whether of a similar 
 character or distinct in their nature, charges 
 and specifications covering them all should, 
 if practicable, be preferred together and to- 
 gether brought to trial. (22 Op. Atty. Gen., 
 589, 595.) 
 
 An indefinite number of offenses may be 
 adjudicated together in one proceeding by a 
 court-martial and a single sentence rendered 
 covering all the convictions. (Rose v. Rob- 
 erts, 99 Fed. Rep., 948.) 
 
 Not only do _ military usage and procedure 
 permit of an indefinite number of offenses 
 being charged and adjudicated together in one 
 and the same jDroceeding, but the rule is re- 
 cognized that whenever an officer has been 
 apparently guilty of several offenses, whether 
 of similar character or distinct in their nature, 
 charges and specifications covering them all 
 should, if practicable, be preferred together 
 and together brought to trial. (Carter v. 
 McClaughry, 183 U. S., 365, 386.) 
 
 Additional charges; trial by different 
 courts. — Specifications of charge known to 
 the Secretary of the Navy, by whom a naval 
 court-martial was ordered, when former charges 
 against the accused were prepared by him 
 before another and a distinct court upon a 
 different and distinct matter, may be tried 
 before a subsequent court-martial together with 
 other charges not previously known. (4 Op. 
 Atty. Gen., 410, construing art. 38, act Apr. 23, 
 1800, 2 Stat., 50.) 
 
 For reasons which are very manifest, incon- 
 gruous charges may be tried by a court-martial 
 which would vitiate an indictment. It is 
 generally desirable that all charges against an 
 
 1028 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 45. 
 
 officer should be tried by one court; but there 
 is no such restriction on the Secretary of the 
 Na^'y, who may deem it his official duty to 
 cause an officer to be tried. Considerations of 
 the greatest importance to the interests of the 
 ser\'ice, of deference to the wishes of the 
 accused himself, and the due execution of 
 public justice, may induce and require him, 
 without injustice to the accused, not to unite 
 several different charges in one and the same 
 prosecution. (4 Op. Atty. Gen., 410, 414.) 
 
 Consent on the part of the accused could not 
 give jurisdiction if it did not exist by law. 
 But where such jurisdiction exists, his wishes 
 might very properly influence the department 
 in its discretionary power in arranging the 
 charges which it felt bound to prefer for trial. 
 (4 Op. Atty. Gen., 410, 414.) 
 
 If this article had the effect of protecting 
 the accused from con\T.ction upon additional 
 charges known to the convening authority 
 when the former trial was ordered, it is well 
 settled that the defense under it could be made 
 only by plea in bar, or under the general issue 
 of not guiltv, and not by plea in abatement. 
 (4 Op. Atty. Gen., 410, 413.) 
 
 Even under this restrictive article a new 
 charge, in addition to those exhibited, may be 
 submitted to the same court if some witness 
 material to the support of the charge, who was 
 absent, can be produced; but the court is not 
 to proceed with this new charge without gi\ing 
 the accused time for his defense. Suppose 
 that this witness can not be produced? Can 
 it be supposed that this article was intended 
 to bar any future prosecution of the offense? 
 The charge is not before the court; no decision 
 is made on it; no part of the trial involves it; 
 and the finding of the court does not conclude it, 
 but such new charge may be tried before an- 
 
 other and distinct court-martial. (4 Op. Atty. 
 Gen., 410, 414.) 
 
 Lesser offense included in charge. — 
 Where accused was found not guilty of the 
 offense charged, but guilty of a lesser offense, 
 such finding was what is known in the admin- 
 istration of criminal law as a partial verdict, 
 in which the accused is acquitted of a part of 
 the accusation against him and found giiilty 
 of the residue; as when there is an acquittal 
 on one count and a verdict of guilty on another; 
 or when the charge is of a higher degree, in- 
 cluding one of a lesser, there may be a finding 
 by a partial verdict of the latter; as upon the 
 charge of burglarj' there may be a con\'iction 
 for a larceny and an acquittal of the nocturnal 
 entry ; so upon an indictment for murder there 
 may be a verdict of manslaughter, and robbery 
 may be reduced to simply larceny, and a bat- 
 tery into an assault. (Dynes v. Hoover, 20 
 How., 65, 79; see also note" to art. 8, A. G. N.) 
 
 Charging same offense under t^vo 
 articles. — See note to article 22, A. G. N.; 
 and see note to article 14, A. G. N., under 
 " Discretionaiy punishment," as to purdsh- 
 ment on couAiction of two charges based on the 
 same transaction; see also note to article 63, 
 A. G. N., as to limitations of punishment. 
 
 Charging offense previously punished. — 
 See note to article 24, A. G. N., as to punish- 
 ments by commanding officer or reprimand by 
 Secretary of the NaA-y not being a bar to sub- 
 sequent trial by court-martial; see also note 
 to article 53, A. G. N., as to effect of disap- 
 proval of former trial. 
 
 Absent witness. — See note to Constitu- 
 tion, sixth amendment, under "VI. Con- 
 fronting witnesses"; and see note to art. 57, 
 A. G. N. 
 
 Art. 44. [Duty of officer arrested.] Every officer who is arrested for 
 trial shall deliver up his sword to his commanding officer and confine himself 
 to the limits assigned him, on pain of dismissal from the service. — (17 July, 
 1862, c. 204, s. 1, art. 15, v. 12, p. 604.) 
 
 See note to article 43, A. G. N., as to arrest of 
 accused for trial. 
 Nominal arrest of oflB.cer. — An officer 
 of the Navy against whom charges had been 
 preferred for trial by comt-martial was given 
 the following order by the Secretary of the 
 Na\y: "You are placed under arrest and you 
 will confine yoiuself to the limits of the city of 
 Washington." The facts showed that he was 
 not under "physical restraint" and that the 
 above-mentioned order did not operate to 
 restrain his movements any more than would 
 
 have been the case had it directed him to re- 
 main in W^ashington to serve as a member of the 
 court-martial. Held, that there was no such 
 "restraint of liberty" in this case as to justify 
 the use of habeas corpus; and that the fear of 
 being forcibly arrested and returned should he 
 leave the city of Washington, if sufficient to 
 keep the officer within the limits of the city, 
 "is a moral restraint, which concerns his own 
 convenience and in regard to which he exer- 
 cises his own \vill. " (Wales v. WTiitney, 114 
 U. S., 564; see note to sec. 752, R. S.) 
 
 Art. 45. [Proceedings of general court-martial.] When the proceedings 
 of any general court-martial have commenced, they shall not be suspended 
 or delayed on account of the absence of any of the members, provided five or 
 more are assembled; but the court is enjoined to sit from day to day, Sundays 
 excepted, until sentence is given, unless temporarily adjourned by the authority 
 which convened it.— (17 July, 1862, c. 204, s. 1, art. 16, v. 12, p. 604.) 
 
 1029 
 
Sec. 1624, Art. 45. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 See notes to articles 45 and 46, A. G. N., as to 
 absence of members. 
 
 Right to speedy trial. — This article in- 
 tends to secure to the accused a speedy and 
 impartial trial \vhen charged with offenses and 
 jMit under arrest, and to give him protection 
 against delays of justice and protracted arrest. 
 It is enacted in the spirit of the sixth article of 
 the amendments to the Constitution of the 
 United States. (6 Op. Atty. Gen., 200, 207; 
 see note to Constitution, sixth amendment.) 
 
 Reqviirenient directory only. — The provi- 
 sions of article 45, A. G. N., are directory only 
 and not mandatory; hence the adjournment 
 of a court-martial from Tuesday to Friday 
 without permission from the convening author- 
 ity, although an irregularity, did not invalidate 
 tlie proceedings. (C. M. 0. 27, 1898, pp. 1-2; 
 Nay. Dig. 1916, p. 20.) 
 
 A general court-martial should not adjourn 
 over a holiday or any other day during a trial, 
 except Sunday, without permission being ex- 
 pressly granted,, although such action would 
 not necessarily invalidate the proceedings. 
 (C. M. O. 51, 1914, p. 4; Nav. Digest, 1916, 
 p. 20.) 
 
 Procedure governed by regulations and 
 usage. — -The "'Regulations for the Adminis- 
 tration of Law and Justice," estabUshed by the 
 Secretary of the Navy with the approval of the 
 President on April 15, 1870, regulating the pro- 
 cedure of courts-martial, have the force of law. 
 (Ex parte Reed, 100 U. S., 13, 22, citing sec. 
 1547, R. S.; see note to art. 43, A. G. N., under 
 "Charging offenses not specifically provided 
 for," and note to art. 42, A. G. N., under 
 "Character e\idence.") 
 
 The law by which courts-martial are bound 
 to execute their duties and to regulate their 
 mode of proceeding in the absence of positive 
 enactments is ' " the general usage of the military 
 ser\T.ce or what may not unfittingly be called 
 the customary military law." (Smith v. 
 Whitney, 116 U. S., 167, 179, approving. Dynes 
 V. Hoover, 20 How., 65, 82; see also note to art. 
 29 , A . G . N . , as to procedure of courts ofinquiry.) 
 
 In the absence of a regulatory statute the 
 proceedings of courts-martial are controlled 
 hy the usages and customs of the military' 
 service, othenvise called customary military 
 law, and not by the common-law rules appli- 
 cable to the proceedings of civil courts. (Kirk- 
 man v. McClaughry, 160 Fed. Rep., 436.) 
 
 Evidence after coirrt cleared. — The ac- 
 cused, charged with disobedience of orders, de- 
 cUned to plead to the charges, but objected to 
 the jurisdiction of the court on the gi-ound that 
 his term of service expired pre\dous to the time 
 mentioned in the specifications, and that his 
 term of service commenced before the act of 
 March 2, 1837 (sec. 1422, R. S.), and that there- 
 fore he was no longer amenable to the laws of 
 the United States for the government of the 
 Na\'y. To sustain this plea the accused offered 
 no evidence whatever, nor was such evidence 
 offered to the court in his presence or while the 
 court was in public session. Instead, immedi- 
 ately after the plea was submitted, the record 
 shows that the coiirt was cleared to deliberate 
 on said plea, and that the muster book and 
 transfer roll of a certain vessel were produced 
 by order of the coiut; and that, it appearing 
 
 therefrom that the prisoner entered the service 
 previous to the act of March 2, 1837, and that 
 his term of service expired on October 20, 1839, 
 it was determined that the court was not in- 
 vested with any legal authority over the person 
 or property of the prisoner and could exercise 
 no jurisdiction over him whatever. Held, that 
 the proceedings of the court were irregular in 
 receiving evidence after the court was cleared. 
 (3 Op. Atty. Gen., 545.) 
 
 See below, "Public sessions." 
 
 Presence of accused during trial. — In 
 cases where the prisoner's life or liberty is in 
 peril, he must be present during the whole of 
 the trial and until final judgment. If absent, 
 there is a want of jurisdiction of the person, and 
 the court can not proceed with the trial or re- 
 ceive the verdict or pronounce the final judg- 
 ment. A prisoner in custody can not waive 
 anything by his absence. In the case of a naval 
 prisoner, it is even more important that he be 
 present at his trial by court-martial. (Weirman 
 V. U. S., 36 Ct. Cls., 236.) 
 
 But where the offense is trivial, and Ufe or 
 liberty is not in jeopardy, the rule is to be re- 
 laxed; accordingly, held, that the proceedings 
 of a naval court-martial would not be declared 
 invaUd by reason of the absence of the accused 
 where the offense and punishment were trivial. 
 (Weirman v. U. S., 36 Ct. Cls., 236.) 
 
 See note to Constitution, fifth amendment, 
 under "V. Presence of accused at trial." 
 
 Public sessions. — The statutes regulating 
 the covu-se of procedure in military courts show 
 that, in contemplation of law, these courts 
 stand on the same footing as other judicial tri- 
 bunals of the country. Their sittings, for exam- 
 ple, are free to the attendance of the pubUc, like 
 those of other coin-ts, and, as if to guard against 
 improper secrecy in the case of courts-martial 
 held in the Army, the statute expressly pro- 
 vides that no proceedings or trials in such courts 
 shall be carried on except between the hours of 
 8 in the morning and 3 in the afternoon, unless 
 in cases which in the opinion of the officer ap- 
 pointing the court requii-e immediate example. 
 (11 Op. Atty. Gen., 137, 141.) 
 
 That a court-martial trjdng a petty ofiicer of 
 the Navy permitted the judge advocate to be 
 present for a short time during a closed session 
 of the court, in violation of the act of July 27, 
 1892 (27 Stat., 277), though a disregard of the 
 defendant's legal rights, was nevertheless an 
 error in procedure only, and was not, therefore, 
 a gi'ound for a wiit of habeas corpus. (Ex paite 
 Tucker, 212 Fed. Rep., 569. Note.— The act 
 cited was entitled "An act to amend the Arti- 
 cles of War, and for other purposes," and did 
 not relate to naval courts-martial. Similar 
 provisions for the Navy was then contained in 
 Navy regulations since embodied in "Naval 
 Courts and Boards," and not in any statute.) 
 
 See above, "Evidence after court cleared." 
 
 Defense of insanity. — That a defendant on 
 trial for desertion before a court-martial was 
 shown to have been in a "haze" or "stupor" 
 at the time in question, held insufficient under 
 a plea of not guilty to raise the issue of insanity 
 which would deprive the court of jurisdiction 
 under regulations contained in the Army man- 
 ual for courts-martial. (U. S. v. Hunt, 254 
 Fed. Rep., 365.) 
 
 1030 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 46. 
 
 "Irresistible impulse" is not a defense to 
 crime where accused had mental capacity to 
 distinguish between right and wi'ong, and to 
 know that the particular act charged was wi'ong. 
 (C. M. O. 24, 1914.) 
 
 If the court-martial is of opinion that ac- 
 cused is insane during his trial, its duty is to 
 suspend proceedings and inform the convening 
 authority of its opinion in order that, if the cir- 
 cumstances warrant, a board of medical survey 
 may be ordered. \Mien, instead of doing this, 
 the court proceeds -vvith the trial and records 
 findings on the charges and specifications, it is 
 the duty of the convening authority not to ac- 
 cept the court's findings; and the record should 
 be returned to the court in order that such find- 
 ings may be revoked, as there has been no legal 
 trial, the accused has not been placed in jeop- 
 ardy, and the status of his case is the same as 
 though he had never been arraigned. (C.M.O. 
 24, 1914.) 
 
 Absence of member as affecting rank of 
 majority. — An officer of the Navy was tried 
 by a general court-martial composed of 13 
 members, six of whom were junior in rank to 
 the accused and seven of them, including the 
 president, were his seniors. After the trial 
 commenced, one of the members who was 
 senior to the accused became sick, and the 
 court proceeded in his absence, more than one- 
 half of the remaining members, exclusive of 
 
 the president, being junior to the accused. 
 The absent member later returned, but was not 
 permitted by the court to resume his seat as a 
 member. The accused was sentenced to be 
 dismissed, which sentence was duly executed. 
 Held, that the court was organized and com- 
 menced its proceedings in strict conformity 
 with the Articles for the Government of the 
 Navy (art. 39, A. G. N.,) and had complete 
 jurisdiction; and that under the said articles 
 (art. 45, A. G. N.) it was required to continue 
 its sessions notwithstanding the absence of any 
 member so long as five remained. The court, 
 therefore, had complete jurisdiction while the 
 member in question was absent. It is doubtful 
 whether the court had lawful authority to ex- 
 clude him on his return, but such action did 
 not invalidate the proceedings. The provi- 
 sion requiring a majority to be senior in rank to 
 the accused is confined to the organization of 
 the court, and does not extend to its subsequent 
 proceedings. (7 Op. Atty. Gen., 98; see arts. 
 46 and 47, A. G. N., and notes thereto.) 
 
 Court reduced below minimum. — See 
 note to article 46, A. G. N. 
 
 Errors of procedure not fatal. — See note 
 to article 53, A. G. N., and see notes above 
 under this article. 
 
 Evidence before courts-martial. — See 
 note to article 42, A. G. N. 
 
 Art. 46. [Absence of members.] No member of a general com't-martial 
 shall, after the proceedings are begun, absent himself therefrom, except in case 
 of sickness, or of an order to go on duty from a superior officer, on pain of being 
 cashiered.— (17 July, 1862, c. 204, s. 1, art. 16, v. 12, p. 604.) 
 
 Court reduced beloAv minimum. — If dur- 
 ing the pendency of a trial before a court 
 martial composed of five members, one of its 
 members fall sick and be thereby disabled from 
 sitting with the court for several days, the re- 
 maining four members may adjourn the court 
 from day to day until he is able to attend with 
 them again to complete the trial. Of course, 
 the court would not consent to wait too long 
 on account of the absence of a member; if the 
 delay became inconveniently protracted, they 
 would not fail to report it to the proper authority ; 
 or if death ensued, to consider the commission 
 or warrant as at an end. (4 Op. Atty. Gen., 17.) 
 
 Effect of unauthorized absence. — The 
 
 Crision which forbids a member to absent 
 self except in case of sickness or in obedi- 
 ence to orders is one for the regulation of the 
 conduct of the members themselves, and per- 
 sonally subjects them to censure; but it has no 
 bearing upon the question of the jurisdiction 
 of the court or the legality of its proceedings. 
 (7 Op. Atty. Gen., 98.) 
 
 A member of the court may willfully absent 
 himself and be tried and cashiered for it, with- 
 out in the least affecting the legality of the pro- 
 ceedings of the court. (7 Op. Atty. Gen., 98.) 
 
 The Articles for the Government of the Navy 
 (art. 45, A. G. N.) makes the trial valid if five 
 members assemble. It is contemplated that 
 members may be ordered elsewhere. The pro- 
 %-ision for this penalty shows that it was antici- 
 pated members might be absent for other 
 
 causes, upon which the law, instead of declare 
 ing the proceedings void in such case, make, 
 them valid and punishes the offending absentee 
 (7 Op. Atty. Gen., 98.) 
 
 The cause of the absence, as distinguished 
 from the absence itself, does not in any way 
 affect the question of legality or jurisdiction. 
 It certainly might when the absent member is 
 called upon to justify his own acts, but not as 
 between th^ accused and the law. (7 Op. 
 Atty. Gen., 98.) 
 
 A member absent on account of sickness was 
 not permitted by the court, upon his return, to 
 resume his seat. This was error on the part of 
 the court, but it does not follow from tliis that 
 the court lost jurisdiction over the accused and 
 that their subsequent proceedings were void. 
 They may have acted irregularly or illegally 
 toward their colleague without rendering their 
 subsequent acts as to the accused void. (7 Op. 
 Atty. Gen., 98.) 
 
 Absence at revision of proceedings. — • 
 It makes no difference whether the absence 
 of a member or members happens pending the 
 original proceedings or on the meeting for 
 revision. In either contingency it is one and 
 the same court with unbroken continuity of 
 existence and unimpaired capacity as to the 
 same subject matter. (7 Op. Atty. Gen., 338.) 
 
 Where a general court-martial duly organized 
 by order of the Secretary of War was, after re- 
 porting, recalled by him to reassemble to revise 
 its sentence and on reassembling two of the 
 
 1031 
 
Sec. 1624, Art. 47. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 original members were absent (for whatever 
 cause), but a legal quorum of the court still 
 remained, held ih&t the absence of two members 
 at the reassembling of the court did not impair 
 its jurisdiction or otherwise affect its power to 
 review the sentence; and that it still was the 
 same continuous and competent court as when 
 it first assembled under the order of the Secre- 
 tary. (7 Op. Atty. Gen., 338.) 
 
 The law makes provision as to the number of 
 officers to be ordered on a general court-martial, 
 but none as to the number who must actually 
 attend and participate in its proceedings be- 
 yond a fixed minimum. (7 Op. Atty. Gen., 338.) 
 
 See note to article 53, A. G. N., as to pro- 
 ceedings in revision. 
 
 "Cashiered" and "dismissed" distin- 
 
 fuished. — In Great Britain it seems that a 
 istinction is recognized to exist between these 
 terms, the one "cashiered," including an in- 
 capacity for future service. (2 Op. Atty. Gen., 
 286.) 
 
 Where an article of war under which an 
 accused was tried prescribed as the punishment 
 of his offense that he shall be "dismissed from 
 service, ' ' the sentence that he be dismissed from 
 the service, instead of that he be cashiered, was 
 conformable to law, and in such case the dis- 
 tinction between the two terms is immaterial. 
 (2 Op. Atty. Gen., 286.) 
 
 For other cases, see notes to articles 45 and 
 47, A. G. N. 
 
 Art. 47. [Return of absent member; witness recalled.] Whenever any 
 member of a court-martial, from any legal cause, is absent from the court 
 after the commencement of a case, all the witnesses who have been examined 
 during his absence must, when her is ready to resume his seat, be recalled by 
 the court, and the recorded testimony of each witness so examined must be 
 read over to him, and such witness must acknowledge the same to be correct 
 and be subject to such further examination as the said member may require. 
 Without a compliance with this rule, and an entry thereof upon the record, a 
 member who shall have been absent during the examination of a witness shall 
 not be allowed to sit again in that particular case. — (17 July, 1862, c. 204, s. 1, 
 art. 17, V. 12, p. 605.) 
 
 amined in the presence of the judge is one that 
 can not be safely departed from. The judg- 
 ment which we form upon testimony is greatly 
 dependent upon the conduct of the witness dur- 
 ing the examination and upon the manner in 
 which that testimony is delivered. It is the 
 right of an accused person that the e\ddence in 
 his case should be given in the presence of all 
 his judges; and it is much more important to 
 secure the correct administration of public jus- 
 tice in this regard than to enforce punishment 
 in any particular cases. (2 Op. Atty. Gen 
 414.) 
 
 Could not resume seat in absence of leg- 
 islation.--As to whether a member of a naval 
 court-martial who participated in the proceed- 
 ings of the same at the commencement of its 
 sitting, but who, from sickness, had been unable 
 to attend during the trial of the whole case, 
 which was concluded in his absence, could 
 afterwards, on recovering his health, resume 
 his seat again as a member of the court for the 
 next trial without a new precept issued, should 
 be decided according to the settled practice in 
 such cases. As the practice has been to regard 
 the member thus situated as disqualified, the 
 executive department should be governed by 
 the precedents so established. Certainly he 
 could not be permitted to take his seat in a case 
 aheady pending. (4 Op. Atty. Gen., 7.) 
 
 It is irregular for a member of a court-martial 
 who has been absent during a portion of the 
 trial, and who did not hear the witnesses testify, 
 to take part in sentencing the accused. In this 
 case the sentence was pronounced by five offi- 
 cers, one of whom had been absent from the 
 coiirt several days during the trial and during 
 the examination of witnesses. The record of the 
 
 Member absent at commencement of 
 proceedings. — \\Tiere a general court-martial 
 has been ordered by the Secretary of the Navy 
 and the names of officers and supernumeraries 
 to compose it are set forth in the warrant, and, 
 by reason of nonattendance of one of the officers 
 on the first day a supernumerary takes his 
 place and the court thus organized proceeds to 
 business, the absent member can not properly 
 thereafter be added to the court upon his arrival 
 unless the case on trial has been disposed of, if 
 at all. (1 Op. Atty. Gen., 698, construing 
 articles of April 23, 1800, 2 Stat., 51. In this 
 case the order convening the court pro\dded 
 that it was to consist of seven members named 
 therein and three supernumeraries also named 
 therein or any five or more of them.) 
 
 There is nothing in the acts of Congress on 
 this subject nor in any of the analogies of the 
 law in relation to civil tribunals, which author- 
 izes a newly arrived member to be superadded 
 at all to a court which has been once legally 
 organized. (1 Op. Atty. Gen., 698.) 
 
 The 39th article of the Rules and Regula- 
 tions for the Government of the Navy (act Apr. 
 23, 1800, 2 Stat., 51 ), seems to conteinplate the 
 unity and immutabihty of a general court- 
 martial which shall have been once constituted 
 and shall have commenced its session. The 
 members whose absence is therein spoken of are 
 the members who shall have qualified as mem- 
 bers of the court, not those who shall merely 
 have been named in the warrant as members. 
 (1 Op. Atty. Gen., 698. The article referred 
 to contained the same provisions as articles 
 45 and 46 of secrion 1624, R. S.) 
 
 Importance of memlDers hearing testi- 
 mony. — The rule that \\itnesses should be ex- 
 
 1032 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 48. 
 
 examination of these witnesses was read to him 
 and his judgment was consequently founded 
 upon the testimony of witnesses who had not 
 been examined in his presence. If he was thus 
 disqualified to sit in judgment upon the ac- 
 cused, there was no competent tribunal to 
 award sentence against him: Held, that the offi- 
 cer was disqualified to pronounce judgment in 
 this case ; and that the sentence was illegal and 
 void ; that the accused is entitled to be restored 
 to his rights as if such sentence had not been 
 pronounced or approved . ( 2 Op . Atty .Gen. , 414 . ) 
 Error of court in excluding member on 
 return. — In practice it is unusual for members 
 who have not heard the whole trial to partici- 
 pate in giving judgment; but there is no law to 
 prohibit their doing so, or to compel them if 
 they refuse. It is true that not having heard 
 a portion of the witnesses testify, so as to 
 judge of their credibility from their appear- 
 ance and manner of testiiying, a member who 
 had been absent on account of sickness was 
 without some of the means of proper judgment. 
 The case might have turned upon the credi- 
 bility of a ^\'itness examined when he was ab- 
 sent. The appearance and manner of the wit- 
 ness might have concluded that question. No 
 mere subsequent reading of the evidence can 
 supply full means of knowledge in this respect. 
 However, held, that it was error for the court to 
 exclude such member from resuming his seat, 
 as the court is nowhere clothed with power to 
 expel a fellow member; and that whether or not 
 the absent member shall act upon his return 
 must depend upon his own views of propriety 
 
 and not upon those of the court. (7 Op. Atty. 
 Gen., 98; see note to art. 46, A. G. N.) 
 
 Consent of accused. — Where the question 
 was raised as to the right of a member to resume 
 his seat after being absent during a portion of 
 the trial, it was considered so far doubtful as to 
 induce the accused to tender his consent to 
 waive all question as to this point, and the mem- 
 ber was accordingly not permitted by the court 
 to resume his seat. Held, that this action of the 
 accused could neither confer power upon the 
 member to resume his seat, nor affect the juris- 
 diction or authority of the coiu-t to proceed 
 without him. These depended upon the law 
 and not upon the act of the accused. (7 Op. 
 Atty. Gen., 98, 102.) 
 
 Irregularities not fatal —The absence of 
 a member of the court during the trial of the ac- 
 cused, and the erroneous action of the remaining 
 members in excluding him upon his return, if 
 presented to the President as the ground of a 
 new trial, might or might not have been worthy 
 of consideration in that relation. It was a mere 
 incidental irregularity in form, wholly inde- 
 j pendent of the merits of the case, and might 
 j then have been cured. But after the sentence 
 of dismissal has been confirmed and executed, 
 it is too late for the accused to raise the question 
 of such irregularity, just as it is then too late for 
 the Government to take lawful steps in the 
 premises for the further investigation of the 
 merits, which, if the question had been made 
 drior to the discharge of the court and the ap- 
 proval of its sentence, might have been done. 
 (7 Op. Atty. Gen., 98.) 
 
 Art. 48. [Suspension of pay.] Whenever a court-martial sentences an 
 officer to be suspended, it may suspend his pay and emoluments for the whole 
 or any part of the time of his suspension. — (17 July, 1862, c. 204, s. 1, art. 18, 
 12, p. 605.) 
 
 V. 
 
 When sentence effective. — The effect 
 of a sentence of a court-material suspending 
 from the service for three years "from this 
 day," upon hah pay, a lieutenant of the 
 Marine Corps, and ordering a reprimand by the 
 Secretary of the Navy, is to suspend half the 
 officer's pay from the date of the confirmation 
 of the sentence, forward, during the term of 
 three years. Until the confirmation he is en- 
 titled to receive full pay as before trial. The 
 authority of a naval court-martial to affect by 
 its sentence the pay of an officer subject to its 
 jurisdiction is conferred by the act of April 23, 
 1800, article 40 (2 Stat., 51; art. 48, sec. 1624, 
 R. S.). The limitation imposed by this article 
 is clear, and accurately defined. The power 
 of a court to suspend the pay and emoluments 
 of an officer does not extend beyond the time 
 of his suspension from service. It is incident 
 to that suspension from service, and can only 
 be coextensive in point of time with the sus- 
 pension. (4 Op. Atty. Gen., 323; see art. 53, 
 A. G. N., as to confirmation of sentence.) 
 
 Suspension "with pay. — A sentence of 
 suspension, merely, by a naval court-martial 
 does not deprive the party of pay and emolu- 
 ments. (6 Op. Atty. Gen., 200.) 
 
 Officers and enlisted men in the naval serv- 
 ice do not inciu" any forfeiture or loss of pay 
 by confinement or suspension from duty under 
 
 sentence of a court-martial unless the forfeiture 
 or loss be imposed by the sentence. (15 Op. 
 Atty. Gen., 175.) 
 
 See note to article 54, A. G. N ., as to remission 
 of part of sentence. 
 
 Forfeiture of allowances. — When an of- 
 ficer in the Army is suspended from duty he 
 is not entitled to allowances. In this case the 
 officer was sentenced to be suspended from 
 rank and duty for 12 years, and "to forfeit 
 one-half of his monthly pay every month for 
 the same period." (Swaim v. U. S., 165 U. S., 
 553.) 
 
 Extra pay on discharge. — Where a vol- 
 unteer officer in the military service of the 
 United States was sentenced by a court-martial 
 to suspension from rank and pay for a certain 
 period, before the expiration of which he was 
 mustered out of the service and discharged, 
 held that the sentence did not work a forfeiture 
 of the three months' extra pay provided by 
 the act of March 3, 1865, section 4 (13 Stat., 497), 
 for volunteer officers upon being mustered out 
 of the service, but merely deprived the officer, 
 dming his continuance in service and while 
 it remained in force, of his regular current pay. 
 (13 Op. Atty. Gen., 16.) 
 
 Suspension; continuing punishment; ef- 
 fect of promotion. — See note to article 54, 
 A. G. N. 
 
 1033 
 
Sec. 1624, Art. 52. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Art. 49. [Prohibited punishments.] In no case shall punishment by flog- 
 ging, or by branding, marking, or tattooing on the body be adjudged by any 
 court-martial or be inflicted upon any person in the Navy. — (17 July, 1862, 
 c. 204, s. 1, ai-t. 8, v. 12, p. 603. 6 June, 1872, c. 316, s. 2, v. 17, p. 261.) 
 
 See note to article 30, A. G. N., as to restric- 
 tion upon use of irons; and see note to 
 
 article 63, A. G. N., as to cruel and un- 
 usual punishments. 
 
 Art. 50. [Sentences, how determined.] No person shall be sentenced by 
 a com-t-martial to suffer death, except by the concurrence of two-thirds of the 
 members present, and in the cases where such punishment is expressly provided 
 in these articles. All other sentences may be determined by a majority of 
 votes.— (17 July, 1862, c. 204, s. 1, art. 19, v. 12, p. 605.) 
 
 Art. 51. [Adequate punishment; recommendation to mercy.] It shall be 
 the duty of a court-martial, in all cases of conviction, to adjudge a punishment 
 adequate to the nature of the offense; but the members thereof may recommend 
 the person convicted as deserving of clemency, and state, on the record, the 
 reasons for so doing. — (17 July, 1862, c. 204, s. 1, art. 21, v. 12, p. 605.) 
 
 Art. 52. [Authentication of judgment.] The judgment of every court- 
 martial shall be authenticated by the signature of the president, and of every 
 member who may be present when said judgment is pronounced, and also of 
 the judge-advocate.— (17 July, 1862, c. 204, s. 1, art. 22, v. 12, p. 605.) 
 
 Death of member before sig^ning rec- 
 ord. — The death of one of the members of a 
 general court-martial after sentence had been 
 imposed but before he had appended his signa- 
 ture to the sentence as required by article 52, 
 A. G. N., does not render the sentence void. 
 It is sufficiently authenticated if attested by 
 the other members of the court. (23 Op. Atty. 
 Gen., 550.) 
 
 Tliis proxision concerning authentication is 
 embraced in the British naval laws from which 
 many of ours ha^'e been borrowed . The British 
 article is as follows: "If the prisoner be found 
 guilty of a breach of any of the articles of war 
 established by law, the court shall consider 
 and determine the punishment proper to be 
 inflicted in accordance therewith. The judge 
 advocate shall draw up the sentence accord- 
 ingly, being careful to specifj^ therein the 
 charge, or substance of it; and the same shall 
 be signed by every member of the court, by 
 way of attestation, notwithstanding any differ- 
 ence of opinion thei'e may have been among 
 the members." (23 Op. Atty. Gen., 550.) 
 
 The purpose of the British and American 
 articles is doubtless the same. They are 
 intended to direct the officers of the court to 
 sign the sentence, notwithstanding they may 
 not have concurred in the decision, in order 
 that the sentence may be known with cer- 
 tainty to have been correctly recorded. The 
 article orders officers, under military discipline, 
 to sign the sentence. It does not say that the 
 fact that such sentence has been pronounced 
 must be taken as nonexistent, however clearly 
 it can be proved, if they or some of them are 
 not in a position to sign as directed. It was not 
 the intention that in a case like the present the 
 trial and sentence should go for naught. (23 
 Op. Atty. Gen., 550.) 
 
 Record should contain all the evi- 
 dence. — As no sentence of a naval court-martial 
 can, under the Articles for the Government of 
 the Na\'y, be carried into execution until con- 
 firmed by the commander of the fleet or by the 
 officer ordering the court or in certain cases by 
 the President of the United States (act Apr. 
 23, 1800, 2 Stat., 45), it is essential that the 
 record should contain all the e\idence; and in 
 order to a confirmation such e^-idence should 
 sustain, in the opinion of the superior officer, 
 the finding of the court. Tlie mere statement 
 by the court of the inferences which it drew 
 from the e\'idence, unaccompanied by the e\i- 
 dence itself, was a serious defect in the record, 
 and the commanding officer was correct in not 
 appro\'ing the judgment of the coiut. (3 Op. 
 Atty. Gen., 545; compare note to Art. 53, A. 
 G. N., under '.'Approval of sentence and not of 
 whole proceedings required.'') 
 
 Responsibility of court and judge advo- 
 cate. — The court and judge advocate are re- 
 quired by law to keep a true record of the pro- 
 ceedings. This is not made the duty of any 
 other officer or sen'ant of the Government. 
 The responsibility and the power both belong 
 to these officers and not to anv other. (23 Op. 
 Atty. Gen., 23, 27.) 
 
 Record must show jurisdictional 
 facts. — A court-martial organized under the 
 laws of the United States is a court of special 
 and limited jurisdiction. It is called into ex- 
 istence for a special pui'pose and to perform a 
 particular duty. When the object of its crea- 
 tion has been accomplished it is dissolved. 
 To give effect to its sentence it must appear 
 affirmatively and unequivocally that the court 
 was legally constituted; that it had jurisdiction; 
 that all the statutory regulations governing its 
 proceedings had been complied with; and that 
 
 1034 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 52. 
 
 its sentence was conformable to law. There 
 are no presumptions in its favor so far as these 
 matters are concerned. It is not sufficient that 
 jurisdiction may be inferred argumentatively 
 from its averments. Their authority is statu- 
 tory and the statute under which they proceed 
 must be followed throughout. The facts neces- 
 sary to show their jurisdiction and that theu' 
 sentences were conformable to law must be 
 stated positively ; and it is not enough that they 
 may be inferred argumentatively. (Runkle v. 
 U.S., 122 U.S., 543, 555.) 
 
 Omission of record to shew jurisdic- 
 tional facts. — Where the due convocation 
 of a court-martial with jurisdiction to try 
 offenses of the class in question is established 
 on the face of its record, the existence of a par- 
 ticular fact not so shown, but acted upon by 
 the coiirt-martial and necessary to its jurisdic- 
 tion over the particular case, may be proven 
 in support of its judgment upon a collateral 
 attack. Such evidence does not change the 
 court-martial record, but simply meets the 
 collateral attack by showing that at the time 
 of trial the basis existed for the exertion by the 
 court of the authority conferred upon it. Gen- 
 eral expressions found in some of the reported 
 cases to the effect that, wherever a fact upon 
 which the jurisdiction of a court of limited 
 jurisdiction depends is questioned, it must 
 appear in the record that such fact was estab- 
 lished, should be limited in accordance with 
 this ruling. (Givens v. Zerbst, 255 U. S. 11, 20, 
 affirming ex parte Gi\dns, 262 Fed. Rep., 702.) 
 
 The complete right to collaterally assail the 
 existence of every fact which was essential to 
 the exercise by a court-martial of its authority, 
 whether appearing on the face of the record or 
 not, is wholly incompatible with the concep- 
 tion that, when a collateral attack is made, the 
 face of the record is conclusive. Such expres- 
 sions as to the face of the record contemplate, 
 not the record assailed by the collateral attack, 
 but the record established as the result of the 
 proof heard on such attack. (Givens v. Zexbst, 
 255 U. S., 11. 20, affirming ex parte Givins, 262 
 Fed. Rep., 702.) 
 
 In a habeas corpus proceeding evidence was 
 admissible to prove the military status of the 
 relator at the time of his trial and conxdction by 
 an Army court-martial, where the record of the 
 court-martial was silent on the subject beyond 
 shomng that he was charged as a captain in the 
 Army. (Givens v. Zerbst, 255 U. S. 11, affirm- 
 ing ex parte Givens, 262 Fed. Rep., 702.) 
 
 It is not necessary that every fact essential 
 to the jiirisdiction of a court-martial and the 
 competency and qualifications of its members 
 should be set out in the record in each case, but 
 with respect to formal matters relating to the 
 creation of the court, such as a recital that an 
 order of the War Department was "by direction 
 of the President, ' ' or the designation of the rank 
 and official position of officers, regularity will be 
 presumed. (McRae v. Henkes, 273 Fed. Rep., 
 108.) 
 
 That an order convening a court-martial was 
 not signed personally by the department com- 
 mander, but by a staff officer by his"command," 
 and that the department of which he was in 
 command did not appear below his personal 
 signature, held not to render it invalid; the 
 
 objection related to a matter of form and not of 
 substance. (McRae v. Henkes, 273 Fed. Rep., 
 108.) 
 
 That the record of the com"t-martial did not 
 show that the retired officers who served as 
 members had been regularly detailed to active 
 duty with their consent or as otherwise provided 
 by statute did not render the judgment and 
 sentence void and subject to collateral attack. 
 Indeed, such facts could not appropriately be 
 made a part of the record no more than facts 
 shomng that the members of the court had been 
 commissioned as officers. (McRae v. Henkes, 
 273 Fed. Rep., 108.) 
 
 Although it was necessary that each member 
 of the court be fully competent to sit, the order 
 convening the court and appointing the detail, 
 and the resulting service and action taken by 
 those detailed, raise the presumption that its 
 members were competent and possessed all the 
 necessary qualifications entitling them to sit as 
 such. (McRae v. Henkes, 273 Fed. Rep., 108, 
 reversing ex parte Henkes, 267 Fed. Rep., 276.) 
 
 Where the record of a trial before a court- 
 martial is defective, in faUing to show who was 
 the originator or signer of the charges against 
 the accused, and who is to be treated legally 
 as the accuser or prosecutor, evidence aliunde 
 is admissible to supply the information when 
 the proceedings are attacked years later as null 
 and void on the gi'ound that the commanding 
 general was legally incompetent to convene the 
 court, because he had preferred the charges. 
 In such case sworn statements of officers may be 
 admitted in order not to impeach the validity 
 of the proceedings, but to supply facts which 
 the record fails to disclose. (16 Op. Atty. 
 Gen., 106.) 
 
 For other cases, see notes to article 38, A.G. N., 
 under "Evidence of convening authority's 
 power" ; article 40, A. G. N., under "Judge 
 advocate not sworn"; and article 43, A. G. N., 
 under "Waiver of objection by the accused." 
 
 Correction of record. — See above under 
 "Omission of record to show jurisdictional 
 facts"; and see below under "Conclusiveness 
 of record." 
 
 The Secretary of War is without authority to 
 correct, amend, or to take any action inconsist- 
 ent with the record of a court-martial duly con- 
 vened upon a proper and sufficient charge. 
 This power is inherent in a court-martial; but 
 such correction or amendment can be made only 
 when the court-martial is in session, and when 
 at least five of the members of the court who 
 acted upon the trial are present, and then in the 
 presence of the judge advocate. After the 
 court has been dissolved, and the sentence ap- 
 proved and executed, such amendments or 
 corrections can not be made. (23 Op. Atty. 
 Gen., 23.) 
 
 Conclusiveness of record. — The record is 
 that which the court certifies to have transpired 
 on the trial and embodies the action of the court. 
 The fact that the court, in due and legal form, 
 announces that it did so and so, or that so and 
 so transpired, makes that record and the fact, 
 and no one except the court itself can lawfully 
 alter that record. If it were to be held other- 
 wise, there is not a record filed in the depart- 
 ment that could not be subject to attack by ex 
 parte affidavits, and that, too, at a time when 
 
 54641°— 22- 
 
 -66 
 
 1035 
 
Sec. 1624, Art. 53. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 the officers of the court miRht be dead or scat- 
 tered to the ends of the earth and unable to 
 defend the solemn certificates which they made; 
 and all the judgments of courts-martial as filed 
 and acted on would be open to perpetual con- 
 tradiction on subsecjuent assertions of interested 
 parties which it would be impossible to meet or 
 disprove. (23 Op. Atty. Gen., 23, 28.) 
 
 In this case the record was in every respect 
 regular on its face. But after the sentence was 
 carried into execution, the accused filed an affi- 
 da\'it of himself and also one made by one of the 
 members of the court-martial, stating that a 
 certain ^vitness testified at the trial , whereas the 
 record did not show that the person named in 
 the affidavits was used as a ^\•itnes3 in the case. 
 It was contended by the accused that the re- 
 vieAving authority never had jurisdiction to 
 approve and execute the sentence, because he 
 never had the whole record before him; and 
 that his action was accordingly void. Held, 
 that the record of a court of competent jurisdic- 
 tion is, as against collateral attack, conclusive 
 of its ovm verity ; that this is settled and accept- 
 ed law; and that the same doctrine as to conclu- 
 siveness is also applicable to courts-martial. 
 (23 Op. Atty. Gen., 23.) 
 
 See above, under "Omission of record to show 
 jurisdictional facts," and "Correction of rec- 
 ord." 
 
 Copies of records; rights of pubUc; evi- 
 dence in other cases. — See note to section 
 882, Revised Statutes; and note to article 34, 
 A.G.N. 
 
 Public justice and private right require that 
 the Secretary of the Navy and his subordinates 
 shall not withhold their testimony in regard 
 to the contents of the record of a com-t-martial, 
 after the proceedings have been consummated 
 by the action of the proper re\dsory authority, 
 when required to give it by the summons of a 
 State court. (11 Op. Atty. Gen., 137.) 
 
 When the proceedings of a naval court-mar- 
 tial are at an end, through the action of the com- 
 petent re^'isory power, the contents of the rec- 
 ords of such proceedings are not State secrets; 
 nor are the records of the courts to be regarded 
 as the minutes of official, confidential transac- 
 tions, ^vithin the meaning of the rule as to 
 "privileged communications." (11 Op. Atty. 
 Gen., 137.) 
 
 Any person having an interest in the record 
 of a naval court-martial on file in the Navy De- 
 partment is entitled to have an exemplified 
 copy of it after the proceedings are consummated 
 by the action of the proper revisory authority. 
 (llOp. Atty. Gen., 137.) 
 
 The many instances in which court-martial 
 records might be made available for the pur- 
 poses of justice clearly show that any rule by 
 which the right to inspect and receive copies of 
 the records of the proceedings of military tri- 
 bunals would be limited and restricted would 
 operate to affect disastrously the administra- 
 tion of justice in cases in which the liberty, hap- 
 piness, and life of the individual are often in- 
 volved, and the safety of the State itself may be 
 concerned. (11 Op. Atty. Gen., 137.) 
 
 The records of courts-martial should be re- 
 garded as standing upon the same footing, so 
 far as the parties affected and the community 
 at large are concerned, as the records of the 
 ordinary tribunals of civil and criminal juris- 
 diction. The legislation of Congress shows that 
 it was intended to guard against improper secre- 
 cy in the cases of courts-martial. (11 Op. Atty. 
 Gen., 137.) 
 
 The head or an officer of a department may 
 properly have the custody of records of covu-ta- 
 martial, but such custody does not involve any 
 right of exclxisive control over the documents, 
 nor does it imply any right to withhold the con- 
 tents of them. Such records, it is plain, must 
 be deposited and remain somewhere. They 
 can not stay in the possession of the courts- 
 martial, because they have no existence after 
 the trials. They are then dissolved sine die. 
 The most appropriate place of custody is 
 undoubtedly the archives of the department 
 charged with the administration of the branch 
 of the military service in which the courts were 
 respectively convened. With respect to the 
 records of naval courts-martial on file in the 
 department, the Secretary of the Nav^^ or the 
 officer of the department in whose peculiar 
 care they may be placed stands in relatively 
 the same attitude as the clerk or prothonotary 
 of a civil court with respect to the records of 
 cases instituted and determined in the court of 
 which he is an officer. (11 Op. Atty. Gen., 
 137, 143.) 
 
 A paper which must be kept on file in a des- 
 ignated office and which can not be removed 
 therefrom pertains to that office and so becomes 
 official within the meaning of section 882, Re- 
 vised Statutes. (Cohn v. tJ. S., 258 Fed. Rep., 
 355.) 
 
 If the departments at Washington can be 
 compelled to produce in any part of the country 
 the original of any documents or papers they 
 may have on file, the greatest embarrassment 
 and confusion to the department would be the 
 consequence. (Cohn v. U. S., 258 Fed. Rep., 
 355.) 
 
 Art. 53. [Confirmation of sentence.] No sentence of a court-martial, ex- 
 tending to the loss of life, or to the dismissal of a commissioned or M^arrant offi- 
 cer, shall be carried into execution until confirmed by the President. All 
 other sentences of a general court-martial may be carried into execution on 
 confirmation of the commander of the fleet or officer ordering the court. — (17 
 July, 1862, c. 204, s. 1, art. 19, v. 12, p. 605.) 
 
 "The Secretary of the Navy may set aside the 
 proceedings or remit or mitigate, in whole 
 or in part, the sentence imposed by any 
 naval court-martial convened by his order 
 or by that of any officer of the Navy or 
 
 Marine Corps." (Act Feb. 16, 1909, sec. 9, 
 35 Stat., 621.) 
 The Judge Advocate General of the Navy 
 "shall, under the direction of the Secretary 
 of the Navy, receive, revise, and have 
 
 1036 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 53. 
 
 recorded the proceedings of all courts- 
 martial * * * in the naval service." 
 (Act June 8, 1880, 21 Stat., 164.) 
 "Such finding and sentence shall be subject 
 to review by the convening authority, and 
 by the Secretary of the Navy, as in the 
 cases of other courts-martial. ' ' (Act Apr. 
 9, 1906, sec. 3, 34 Stat., 104-105, relating to 
 courts-martial for the trial of midshipmen 
 at the Naval Academy.) 
 Sentence inoperative vmtil conftrnied.. — 
 Under the laws of the United States, the sen- 
 tence of a court-martial in case of death or dis- 
 mission is not perfected until it shall have 
 received the approbation of the President. 
 Without his sanction it is no more a perfect 
 sentence than a bill which has passed both 
 houses of the National Legislature but which 
 has not yet received the approbation of the 
 President is an act of Congress. In both cases 
 his approbation is necessary to consummate 
 the measure. (1 Op. Atty. Gen., 233, 241.) 
 
 According both to plain law and universal 
 practice, the sentences of naval courts-martial 
 are incomplete and can not lawfully be carried 
 into effect until they have received the ap- 
 proval or confirmation of some revisory power. 
 (5 Op. Atty. Gen., 508, 511.) 
 
 Without the confirmation of the sentence by 
 the statutory reviewing authority it was a vain 
 thing. (10 Op. Atty. Gen., 64.) 
 
 Execution of sentence prior to confirma- 
 tion. — If at the time that the act was done by 
 the War Department of actually dismissing the 
 officer, the sentence had not been confirmed by 
 the President, it does not admit of doubt that 
 the sentence and thus the act done could be 
 confirmed at a subsequent period by him, and 
 this upon the well-settled principle that a sub- 
 sequent ratification is equal to a prior command . 
 Whether or not in the interval that ensued 
 between the informal dismissal of the officer 
 and the act done by the President which oper- 
 ated to confirm the sentence the officer is to be 
 considered as having been an officer of the 
 Army, not decided. (16 Op. Atty. Gen., 298.) 
 An officer was convicted by court-martial 
 and sentenced to dismissal. The sentence not 
 having been approved by the President, the 
 Secretary of the Navy addressed a letter to the 
 officer purporting to dismiss him from the naval 
 service, not pursuant to the sentence of the 
 court but because of facts disclosed by the 
 record. Held, that such letter was an 
 attempted dismissal of the officer otherwise 
 than piu-suant to the confirmed sentence of a 
 court-martial, and that such power of dismissal 
 did not exist in the President on that date. 
 (16 Op. Atty. Gen., 312.) 
 
 Pursuant to the Attorney General's opinion 
 above noted (16 Op. Atty. Gen., 312), the 
 Secretary of the Navy addressed a letter to the 
 officer 11 years after his supposed dismissal, 
 declaring the order of dismissal to be illegal 
 and void, and revoking and annulling same by 
 direction of the President of the United States. 
 The name of the officer was thereupon restored 
 to the Navy Register in the original relative 
 position held by him and to which he was en- 
 titled by virtue of his commission. Held, that 
 the order of the President did not operate to 
 restore the said officer to the Navy; he was 
 
 always there, although by error there was an 
 omission of his name in the register and a fail- 
 ure for some years to recognize him as an 
 officer of the Navy. The only rule that can be 
 adopted is to treat him as having always been 
 nominally, what he always was actually ajid 
 really, an officer of the United States. If 
 positions have been arranged in regard to the 
 rank of other oflicers upon the theory that he 
 was not an officer, those positions should, 
 whenever possible, be altered so as to rectify 
 the error committed by treating him as out of 
 the ser\'ice. Where an officer is illegally 
 dropped he can only find his place again in 
 the grade from which he was dropped, as it 
 would not be in the power of the President 
 alone to give him the rank of a higher gi-ade. It 
 is not necessary to consider in this case to what 
 extent it would be possible to rectify such an 
 error so far as higher grades are concerned. 
 (17 Op. Atty. Gen., 21, 22, 24; see also act of 
 Mar. 3, 1883, 22 stat., 530, "for the relief of 
 Edward Bellows," the officer in whose case 
 this opinion was rendered; and compare note 
 to art. 36, A. G. N., imder "Illegal dismissal 
 revoked.") 
 
 Until the President has acted in the manner 
 required by the articles of war, a sentence by 
 Army court-martial of dismissal of a commis- 
 sioned officer from service in time of peace is 
 inoperative. Before then it is interlocutory 
 and inchoate only. Accordingly, there being 
 no sufficient evidence that the action of the 
 court-martial which dismissed Maj. Runkle 
 from the Army was approved by the President 
 it follows that he was never legally cashiered 
 or dismissed from the Army. (Runkle v. U. S., 
 122 U. S., 543, 547, 559.) 
 
 Approval of sentence and not of whole 
 proceedings required. — Under the articles 
 of war it is the approval of the sentence and not 
 of the whole proceedings that is the prereq- 
 uisite to carrying the sentence into execution. 
 (Carter v. McClaughry, 183 U. S., 365, 384; 
 compare note to art. 52, A. G. N., under "Rec- 
 ord should contain all the evidence"; and see 
 note below as to form of President's action.) 
 
 Efifect of approval or disapproval. — In 
 the case of a court-martial sentence of death or 
 dismissal, the President's disapproval anni- 
 hilates it; the case stands as if there had been 
 no trial, and is just as open to an order for a 
 court-martial as it was in the first instance. 
 (1 Op. Atty. Gen., 233, 242; see note below as 
 to new trials.) 
 
 Where a soldier was tried by court-martial 
 for theft and desertion, and having been con- 
 victed of both charges was sentenced by the 
 court, but the proceedings, findings, and 
 sentence were afterwards disapproved by the 
 reviewing officer and the prisoner ordered to 
 be released from confinement and restored to 
 duty: Held, that the action of the reviewing 
 officer was in effect an acquittal by the court; 
 that the accused is in legal contemplation in- 
 nocent of the charges mentioned; and that 
 there is no authority for withholding his pay 
 on account of the alleged desertion. (13 Op. 
 Atty. Gen., 459. In this case, disapproval 
 was for the reason that the court allowed so 
 much of the examination of the only ^vitness 
 for the prosecution to be conducted by means 
 
 1037 
 
Sec. 1624, Art. 53. 
 
 Ft. 2. REVISED STATUTES. 
 
 The Navy. 
 
 of leading questions as to destroy the value of 
 the testimony. See note to art. 8, A. G. N., 
 under "Effect of disapproval; desertion;" and 
 see below under "tourt-martial bar to trial in 
 civil court.") 
 
 After the final sentence of the law is pro- 
 nounced by the superior ofUcers, the charge 
 has passed conclusively into an o ffense beyond 
 dispute, for the judgment of a comt-marlial is 
 conclusive in its effect as to the truth of the 
 charge and as a jucUcial decree is a bar to 
 further proceeding. (19 Op. Atty. Gen., 106, 
 108.) 
 
 For other cases, see below, under "Irreg- 
 ularities and false defects." 
 
 Disapproval of findings in part; effect 
 on sentence. — -Where the sentence is rendered 
 on findings of guilty of several charges with 
 specifications thereunder, and the President, 
 as the reviewing authority, has disapproved of 
 the findings of guilty of some of the specifica- 
 tions, but approved the findings of guilty of a 
 specification or specifications under each of 
 the charges and of the charges, the President 
 does not think proper to remand the case to the 
 court-martial for re\ision, or to mitigate the 
 sentence, or to pardon the accused, but ap- 
 proves the sentence, the judgment so rendered 
 can not be disturbed on the gi'ound that the dis- 
 approval of some of the specifications vitiated 
 the sentence. The analogies of the criminal 
 law bear out the procedure under military 
 law. It can not be assumed that if the court- 
 martial had acquitted on the disapproved 
 findings, the sentence would have been less 
 severe, and that the punishment was there- 
 fore increased by the action of the President. 
 (Carter v. McClaughry, 183 U. S., 365, 385.) 
 
 It has been repeatedly ruled by the Judge 
 Advocates General of the Army that a duly 
 approved finding of guilty on one of several 
 charges, a conviction upon which requires or 
 authorizes the sentence adjudged, will give 
 validity and effect to such sentence, although 
 the similar findings on all the other charges are 
 disapproved as not warranted by the testi- 
 mony. (Carter v. McClaughry, 183 U. S., 365, 
 386.) 
 
 Reconsideration of reviewing author- 
 ity's action. — Where several midshipmen had 
 been dismissed by the sentence of a naval court- 
 martial, which was approved by the President, 
 who very shortly thereafter reconsidered his 
 approval and announced his determination to 
 annul his approval and restore the dismissed 
 officers, but was prevented from doing so be- 
 cause of his sudden death a few days after- 
 wards, held that it is within the competency 
 and power of the present Executive to restore 
 them to their former rank in the Navy, pro- 
 vided it can be done without increasing that 
 class of officers beyond the niunber limited by 
 law. (5 Op. Atty. Gen., 259. This opinion was 
 expressly confined to the case presented and 
 ' ' its particular circiunstances, ' ' and thus ex- 
 cludes all idea of introducing any new doctrine. 
 See 6 Op. Atty. Gen., 369, 370.) 
 
 It can not be assumed, as a general proposi- 
 tion, either that the President has a power un- 
 limited as to time or circumstances to restore 
 an officer who has been dismissed from the pub- 
 lic service, or that he is in all cases precluded 
 
 from so doing from the instant he signs his ap- 
 proval of a sentence of dismissal. It is not 
 necessary on this occasion to attempt to discuss 
 or define the extreme limits which restrain his 
 power, on the one hand, or, on the other hand, 
 to fix the limits within which it may be his 
 right and duty to reconsider and annul execu- 
 tive acts. (5 "Op. Atty. Gen., 259.) 
 
 A sentence of dismissal from the naval service, 
 approved by the President, can not be an- 
 nulled. The officer dismissed can be restored 
 to the Navy only by a new nomination by the 
 President, confirmation of the Senate, and all 
 the requisites to constitute an original appoint- 
 ment to office. (4 Op. Atty. Gen., 274.) 
 
 An officer of marines was tried by court- 
 martial and sentenced to be cashiered; the 
 sentence was commuted to suspension for a lim- 
 ited period; thereafter the accused was ap- 
 pointed a lieutenant in the Anny. Held, that 
 his case can not, after the lapse of 16 years, be 
 examined with reference to whether the court- 
 martial by which he was tried was legally or- 
 ganized and competent to try him. (5 Op. Atty. 
 Gen., 384.) 
 
 After the sentence of a court-martial dismiss- 
 ing an officer has been approved and acted on 
 by the President, it can not be revised except 
 for suggestion of absolute niillitj^ in the pro- 
 ceedings as being absolutely void ab initio. 
 The decision of the President in cases of this 
 sort is that of the ultimate judge provided by 
 the Constitution and laws. Like that of any 
 other court in the last resort of law, it is final as 
 to the subject matter. (6 Op. Atty. Gen., 369. ) 
 
 After the trial and conviction of a commis- 
 sioned or warrant officer of the Navy by a court- 
 martial having jurisdiction of the case, and the 
 approval by the President of the sentence dis- 
 missing him from the service, and such sen- 
 tence has been carried into execution, the 
 President can not reconsider his approval and 
 revoke the sentence of the court. (11 Op. 
 Atty. Gen., 19.) 
 
 Undoubtedly the President, in passing upon 
 the sentence of a court-martial and giving to it 
 the approval without which it can not be exe- 
 cuted, acts judicially. The whole proceeding 
 from its inception is judicial. The trial, find- 
 ing, and sentence are the solemn acts of a court 
 organized and conducted under the authority 
 and according to the prescribed forms of law. 
 It sits to pass upon the most sacred questions 
 of human rights that are ever placed on trial in 
 a court of justice^righta which in the very na- 
 ture of things can neither be exposed to danger 
 nor entitled to protection from the uncon- 
 trolled will of any man but which must be ad- 
 judged according to law. And the act of the 
 officer who reviews the proceedings of the 
 court, whether he be the commander of the 
 fleet or the President, and without whose ap- 
 proval the sentence can not be executed, is as 
 much a part of this judgment according to law 
 as is the trial or the sentence. When the 
 President, then, performs this duty of approv- 
 ing the sentence of a court-martial dismissing 
 an ofiicer, his act has all the solemnity and sig- 
 nificance of the judgment of a court of law. 
 As it has to be performed under the same sanc- 
 tions, so it draws with it the same consequences . 
 One of these consequences is that where a 
 
 1038 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 53. 
 
 judgment has been regularly entered in a case 
 properly within the judicial cognizance, from 
 which no appeal has been provided or taken, 
 and it has been followed by execution, it is 
 final and conclusive upon the party against 
 whom it is entered. And this effect attaches 
 to the action of the President in approving the 
 sentence of a court-martial dismissing an officer 
 after that approval has been consimimated by 
 actual dismissal, Ql Op. Atty. Gen., 19, 21; 
 see also Runkle v. \j. S., 122 U. S., 543, 557.) 
 
 No man would assert the power of the Presi- 
 dent to reverse his judicial decision afterwards 
 to the prejudice of the accused. But why 
 should that judgment be any less permanent 
 because it establishes his guilt? It must be 
 accepted as final and conclusi\e in the one case 
 as in the other, because it is the judgment 
 which the law authorizes to settle the rights in 
 controversy, from which no appeal has been 
 given. (11 Op. Atty. Gen., 19, 21, 22.) 
 
 Courts-martial are judicial tribunals consti- 
 tuted by statutory authority and organized in 
 pursuance of statutory regulations for the ad- 
 ministration of a great and important depart- 
 ment of jurisprudence — the law military. They 
 are, therefore, in the strictest sense courts of 
 justice, ha\ing jurisdiction of a large and in 
 some respects distinct community of our fellow 
 citizens, and taking judicial cognizance of the 
 duties and obligations which the citizen as- 
 sumes when he enters, by enlistment or other- 
 wise, into the military service of the country. 
 Their judgments in cases committed for the 
 consideration and determination are as final, 
 conclusive, and authoritativ^e as those of any 
 judicial tribunal of the country. After the 
 sentence has been approved and carried into 
 effect, there is no re\'isory power by which it 
 can be rescinded, annulled, or modified. It 
 forever stands as the judgment of a court. (11 
 Op. Atty. Gen., 137.) 
 
 When the sentence of a court-martial dis- 
 missing a commissioned officer has been law- 
 fully confirmed and executed, the proceedings 
 in the case are no longer subject to review by 
 the President; they have passed beyond his 
 control and are at an end. (15 Op. Atty. Gen., 
 290.) 
 
 A commander in the Navy was tried and 
 sentenced to dismissal from service by a naval 
 court-martial. The record of the proceedings 
 and sentence was submitted to the President, 
 who, on June 5, 1874, approved the same. On 
 June 9, 1874, the Secretary of the Navy ad- 
 dressed a letter to the officer, then in Boston, 
 informing him of the apyjroval of the sentence, 
 and stating that from said date (June 9, 1874) he 
 would "cease to be an officer of the Navy." 
 On June 12, 1874, the Secretary addressed an- 
 other letter to the officer, asking him to return 
 the letter of dismissal. On December 8, 1874, 
 the Secretary addressed a third letter to the 
 officer, stating that the sentence of the court- 
 martial "was, on the 9th day of June, 1874, 
 mitigated to suspension from rank, and so 
 forth, to date from that day." Held, (1) that 
 the letter of the Secretary of the Navy of De- 
 cember 8 is satisfactory proof not only of the 
 mitigation of the sentence by_ the President, 
 but that it was mitigated by him on the 9th of 
 June; (2) that the letter of dismissal in execu- 
 
 tion of the sentence, forwarded by the Secretary 
 on the 9th of June (it being manifest that the 
 complete execution of the sentence by means of 
 that letter could not take place on that <Iay), 
 was then revocable; and the mitigation of the 
 sentence was in effect a revocation of the letter; 
 and (3) that it was competent to the President 
 under the circumstances to mitigate the sen- 
 tence when he did. (15 Op. Atty. Gen., 463; 
 see Quackenbush v. U. S., 177 U. S., 20.) 
 
 Wliere the sentence of a legally constituted 
 court-martial in a case within its jurisdiction 
 has been approved by the reviewing authority 
 and carried into execution, it can not after- 
 wards be rcA-ised and annulled, there being 
 no fatal irregularity in its proceedings nor 
 illegality in its sentence. The proceedings are 
 then at an end, and the action thus had "upon 
 the sentence is, in contemplation of law, final. 
 (17 Op. Atty. Gen., 297.) 
 
 If the sentence of a court-martial dismissing 
 a commissioned officer of the Army has been 
 legally approved by the President, the sub- 
 sequent disapproval of the sentence by his 
 successor would be a nullity and could not have 
 the effect of restoring the officer to his position. 
 (Runkle V. U. S., 122 U. S., 543, 558.) 
 
 For other cases, see below, under "Irregular- 
 ities and fatal defects. ' ' 
 
 Relation of reviewing' authority to 
 court analogous to judge and jury. — 
 Courts-martial exhibit many points of analogy 
 with juries, the appointing power having some- 
 thing of the same relation to the former that the 
 judge at nisi prius has to the latter, inasmuch 
 as the court-martial, like the jury, finds all of 
 the facts, and pronounces a sentence thereon 
 which has to undergo the legal supervision of 
 a superior authority. Questions have arisen 
 where it was convenient to reason from this 
 analogy ; however, it is analogy only, and leaves 
 unchanged the substantial nature of things. 
 (7 Op. Atty. Gen., 338, 340.) 
 
 The reviewing authority, whose confirmation 
 of the sentence is required before it becomes 
 operative, occupies toward the court-martial 
 and its proceedings a relation similar to that 
 which the judge in a ci^^-l court occupies to a 
 jury. (10 Op. Atty. Gen., 64.) 
 
 The verdict of a jury bears a close analogy to 
 the judgment of a court-martial. The sentence 
 pronounced on that v^erdict by the court bears 
 a like analogy to the confirmation of the officer 
 who ordered the court. (19 Op. Atty. Gen., 
 106, 107.) 
 
 While a court-martial can not be altogether 
 likened to a civdl court, in which the guilt of 
 the accused is to be pronounced by a jury under 
 the supervision of the judge, and the penalty 
 is to be fixed by the judge within the pre- 
 scribed limits, it is true that a court-martial 
 acts only in response to the call of a superior 
 authority, and the result of its deliberations is 
 somewhat in the nature of a recommendation 
 to that authority; is without effect unless ap- 
 proved by it; and until then is interlocutory 
 and inchoate only. (In re Brodie, 128 Fed. 
 Rep., 665, 668.) 
 
 The superior authority which orders a court- 
 martial, and to which its conclusion must be 
 submitted for approval or disapproval, is 
 spoken of as the re\T.ewing authority. Its 
 
 1039 
 
Sec. 1624, Art. 53. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 action being indispensable to a final conclusion 
 or jiuljiment, the reviewing authority is an 
 essential component of the original tribunal 
 and is not entirely a court of errors. (In re 
 Brodie, 128 Fed. flep., 66-5, 668.) 
 
 See note below, under "Reconvening of 
 court for re\'ision.'' 
 
 "Officer ordering the court;" President 
 and Secretary of the Navy. — The sentence 
 must be confirmed by the President, if he 
 ordered the court; or by the Secretary of the 
 Navy, if he was the officer who ordered it. 
 (lOp. Atty. Gen., 309.) 
 
 Under the phiase, "the officer ordering the 
 court ■' in the articles of April 23, 1800 (2 Stat., 
 51), the President and Secretary of the Nax-y 
 alone were included; because by said articles 
 they were the only officers authorized to order 
 a naval court-martial at home. (1 Op. Atty. 
 Gen.. 309.) 
 
 Where a general coui't-martial was convened 
 by the Secretary of the Navy, he was the 
 "officer" ordering the court -within the meaning 
 of the Articles for the Government of the Navy 
 pro^•iding for the execution of sentences on 
 confirmation of the officer ordering the court; 
 the approval of the Secretary of the NaA^ was 
 that confii-mation. (4 Op. Atty. Gen., 323.) 
 
 The Secretary of the Navy has power to 
 approve the sentence of a court-martial con- 
 vened by him where the sentence of the coui't 
 does not extend to loss of life or to the dis- 
 missal of a commissioned or warrant officer. 
 (5 Op. Atty. Gen., 508.) 
 
 The Secretary of the Navy is an "officer" 
 within the meaning of the act of April 23, 1800, 
 article 41 (2 Stat., 51), pro^'iding that sentences 
 of comls-martial in certain cases may be 
 carried into execution "on confirmation of the 
 commander of the fleet, or officer ordering the 
 court." (5 Op. Atty. Gen., 508.) 
 
 To say that the term "officer" as here used is 
 to be understood as meaning only a naval 
 officer ha\dng command of a squadron is a 
 construction not only narrow and arbitrarj^, 
 but such as would defeat the declared purpose 
 of this provision of law. The Secretaiy of the 
 Navy is in fact and law an "officer" and in the 
 act establishing the Navy Department (1 Stat., 
 553), he is denominated the " chief officer" of 
 that department. (5 Op. Atty. Gen., 508.) 
 
 WTiere a court-martial for the trial of an 
 officer of the Army was convened by the Presi- 
 dent, he was the re\iewing authority and the 
 coiirt of last resort. (Carter v. Mc(Taughrj% 
 183 U. S., 365, 385.) 
 
 Mitigating circumstances considered by 
 reviewing authority. — In exercising the 
 revisory power over sentences of courts-martial, 
 the President may consider the provocation, 
 if any, which led to the offense and all the facts 
 and circumstances which properly bear upon 
 the justice, injustice, severity, or leniency of 
 the sentence. (2 Op. Atty. Gen., 286.) 
 
 Provocation, according to its nature and 
 degree, and according to the nature of the act 
 committed in consequence of it, may justify or 
 excuse that act or may be inadequate to either 
 purpose. English writers on militarj' law con- 
 firm the idea that extenuating circimistances 
 may be properly considered by the officer to 
 whom is intrusted the power of supervising the 
 
 sentence of a court-martial. It is indeed the 
 right of the accused that all the circumstances 
 of his case should l)e reviewed by the authority 
 which decides finallv on his case. (2 Op. Attv. 
 Gen., 286.) 
 
 See note to article 52, A. G. N., under "Rec- 
 ord should contain all the e\idence." 
 
 Personal action of reviewing authority 
 required. — The action of the President as to 
 the confirmation of sentences in cases where 
 such action is required by the articles of war is 
 judicial in its character and in this respect 
 differs from the administrative action considered 
 in cases holding that the ac tion of the head of a 
 department is in legal contemplation the action 
 of the President. The law implies that he is 
 himself to consider the proceedings laid before 
 him, and decide personally whether they 
 ought to be carried into effect. Such a power 
 he can not delegate. His personal judgment is 
 required, as much so as it would have been in 
 passing on the case if he had been one of the 
 members of the court-martial itself. He may 
 call others to his assistance in making his ex- 
 aminations and in informing himself as to what 
 ought to be done; but his judgment when 
 pronounced must be his own judgment and not 
 that of another. And this because he is the 
 person, and the only person, to whom has been 
 committed the important judicial power of 
 finally determining upon his examination of the 
 whole proceedings of a court-martial whether an 
 officer holding a commission in the Army shall 
 be dismissed from serA-ice as a punishment for 
 an offense. (Runkle r. U.S., 122 U.S. ,543,557.) 
 
 Form of President's action; personal 
 signature not necessary. — It is not necessary 
 that the President should attach his sign manual 
 to the approval of a sentence rendered by a 
 court-martial in time of peace cashiering a com- 
 missioned officer in order to make the sentence 
 effectual. It is sufficient for this purpose if 
 his approval of the sentence be signified through 
 and attested by the Secretary of War in a state- 
 ment signed bv the latter. (15 Op. Atty. Gen., 
 290.) 
 
 A statement made and signed by the Secre- 
 tary of War announcing the approval by the 
 President of a court-martial sentence is sufficient 
 authentication of the act of the President, 
 without an express averment therein that it 
 is made by direction of the President, the 
 presumption being always that such dii'ection 
 was given. (15 Op. Atty. Gen., 290; for de- 
 cision of the Supreme Court in this case, see 
 Runkle v. U. S., noted below.) 
 
 Where an Army officer was sentenced to 
 dismiseal from the service, and the sentence, 
 without ha\T.ng been approved by the Presi- 
 dent, was carried into effect under orders of 
 the War Department, helfl that the subsequent 
 recognition by the President of the vacancy 
 thus occasioned, Ijy making an appointment 
 during a recess of the Senate or a nomination 
 to that body (followed by the issuance of a 
 commission with the consent of the Senate) 
 of a person to fill the place of such oflicer, 
 operates as a confirmation by him of the sen- 
 tence and orders. (10 Op. Atty. Gen., 298; 
 compare 15 Op. Atty. Gen., 463, 466.) 
 
 Whether a sentence of court-martial has been 
 confirmed by the President is to be determined 
 
 1040 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 53. 
 
 by evidence, no specific form for this act 
 having been provided by statute. (16 Op. 
 Atty. Gen., 298.) 
 
 A paymaster in the Navy was sentenced by 
 court-martial, inter alia, to be dismissed. The 
 following letter was addressed to him by the 
 Secretary of the Navy: "In consequence of 
 the facts appearing upon the record of the 
 naval general court-martial before which you 
 were tried * * *^ you are dismissed from 
 the naval service, and will fi-om this date 
 cease to be regarded as an officer in the United 
 States Navy." Ecld, that this letter does not 
 profess in direct terms nor inferentially to be 
 the act of approval of the sentence of the court- 
 martial; it IS foxmded upon facts disclosed by 
 the record, and does not state the act which 
 the Secretary does to be the act of approval of 
 the sentence. Its fair construction is that it 
 is a dismissal from the service by reason of 
 disclosures made by the record, and such 
 power of dismissal, independently of court- 
 martial, did not then exist, by virtue of article 
 36, A. G. N. (16 Op. Atty. Gen., 312; see also, 
 17 Op. Atty. Gen., 21, 22; and see note above, 
 under "Execution of sentence prior to con- 
 firmation.") 
 
 Notice by the Secretary of the Navy of the 
 approval by the President of a sentence dis- 
 missing a midshipman in 1868 was sufficient 
 evidence both of approval and promulgation. 
 (16 Op. Atty. Gen,, 5.50.) 
 
 Where a paymaster in the Navy was sen- 
 tenced to dismissal by court-martial, and it 
 distinctly appeared by the order of the Secre- 
 tary of the Navy that the President approved 
 the finding of the court and directed the sen- 
 tence to be carried into effect, held that the 
 officer was legally dismissed from the naval 
 service. (17 Op. Atty. Gen., 43, affirming 
 15 Op. Atty. Gen., 290.) 
 
 Where the approval of the proceedings, 
 findings, and sentence of a court-martial by 
 the President is attested by an entry on the 
 record signed by the Secretary of War, this is 
 sufficient evidence of such approval. (17 Op. 
 Atty. Gen., 397. For decision of Court of 
 Claims in this case, see Armstrong v. U. S., 
 26 Ct. Cls., 387.) 
 
 The President's approval must be authenti- 
 cated in a way to show, otherwise than argu- 
 mentatively, that it is the result of his own 
 judgment, and not a mere departmental order 
 which may or may not have attracted his 
 attention; and the fact that the order was his 
 own must not be left to inference only. Not 
 decided what the precise form of an order of 
 the President approving the proceedings and 
 sentence of a court-martial should be, or that 
 his own signature should be affixed thereto. 
 (Runkle v. U. S., 122 U. S., 543.) 
 
 In this case the following order was issued 
 by the Secretary of War: "The findings and 
 sentence are approved. In view of the imani- 
 mous recommendation by the members of the 
 court that accused shall receive executive 
 clemency on account of his gallant services 
 during thte war, and of his former good char- 
 acter, and in consideration of evidence, by 
 affidavits presented to the War Department 
 since his trial, showing that accused is now, 
 and was at the time when his offense was 
 
 committed, suffering under great infirmity in 
 consequence of wounds received in battle, 
 and credible representations having been made 
 that he would be utterly unable to pay the 
 fine imposed, the President is pleased to remit 
 all of the sentence, except so much thereof as 
 directs cashiering, which will be duly exe- 
 cuted." _ This action is di\ided into two parts, 
 one relating to the approval of the proceedings 
 and sentence, and the other to the executive 
 clemency which was invoked and exercised. 
 The ■personal action of the President is nowhere 
 mentioned, except in the remission of a part 
 of the sentence. There is nothing which can 
 have the effect of an aflirmative statement that 
 the whole proceeding had been laid before the 
 President for action or that he personally 
 approved the sentence. So far as it relates to 
 approval of the sentence, it indicates on its 
 face departmental action only. What follows 
 does not clearly show the contrary. Under 
 the circumstances, it can not be said that it 
 positively and distinctly appears that the 
 proceedings of the coml-martial have ever in 
 fact been appro^^ed or confirmed in whole or 
 in part bv the President of the United States. 
 (Runkle \'. U. S., 122 _U. S., 543, 547, 559, 
 holding that the officer in this case was never 
 legally cashiered or dismissed from the Army.) 
 
 The decision of the President confirming or 
 disproving the sentence of a general court- 
 martial in time of peace, extending to the loss 
 of life or the dismissal of a commissioned officer, 
 is a judicial act to be done by him personally, 
 and is not an official act presumptively his; 
 but it need not be attested by his sign manual 
 in order to be effectual. (U. S. v. Page, 137 
 U. S., 673, citing 2 Op. Atty. Gen., 67; 7 Op. 
 Atty. Gen., 473; 15 Op. Atty. Gen., 290; and 
 distinguishing Runkle v. Xj. S., 122 U. S., 
 543.) 
 
 The following action, signed by the Secretary 
 of War, held to constitute sufficient evidence 
 of approval by the President: 
 
 ' ' In conformity with the 65th of the Rules 
 and Articles of War, the proceedings of the 
 general court-martial to the foregoing case have 
 been forwarded to the Secretary of War, and 
 by him submitted to the President. 
 
 "The proceedings and findings upon the sec- 
 ond charge and specification, and upon the 
 third charge under its second and third speci- 
 fications, are approved. 
 
 "With regard to the other findings the re- 
 marks noted by Major General Hancock, who 
 convened the court, are concurred in as fol- 
 lows: * * * 
 
 "The sentence is approved. 
 
 "Second Lieut. Frank A. Page (retired) 
 accordingly ceases to be an officer of the Army 
 from the date of this order." (U. S. v. Page, 
 137 U. S., 673.) 
 
 The only possible conclusion to be drawn 
 from the action signed by the Secretary of 
 War in this case is that the approval was by 
 the President, in whom alone reposed authority 
 to act. Where the record discloses that the 
 proceedings have been laid before the Presi- 
 dent for his orders in the case, the orders subse- 
 quently issued thereon are presumed to be his 
 and not those of the Secretary, by whom they 
 are authenticated; and this must be the result 
 
 1041 
 
Sec. 1624, Art. 53. 
 
 rt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 where the approval follows the submission in 
 the same order. (U. S. v. Pa^e, 137 U. 8., 673.) 
 
 In Riinkle r. United States (above noted) 
 the record failed to show the vital fact of the 
 submission of the proceedings to the President. 
 The inference that the President had personally- 
 acted could be i^roperly drawn from the sub- 
 stantive fact of the submission of the proceed- 
 ings to him, if that appeared, but presumption 
 could not supply that fact, and then a presump- 
 tion upon that presumption be availed of to 
 make out that the approval was the President's 
 personal action. This would leave the fact 
 that the order was the President's to inference 
 only. (U. S. V. Page, 137 U. S., 673.) 
 
 Reference to the case of Runkle v. United 
 States (above noted) shows that the circum- 
 stances were so exceptional as to render it 
 hardly a safe precedent in any other. (U. S. 
 V. Fletcher, 148 U. S., 84, 90.) 
 
 The proceedings, findings, and sentence of a 
 military court-martial being transmitted to the 
 Secretary of War, that officer wrote upon the 
 record the following order, dating it from the 
 "War Department," and signing it with his 
 name as "Secretary of War": "In conformity 
 with the 65th of the Rules and Articles of War, 
 the proceedings of the general court-martial in 
 the foregoing case have been forwarded to the 
 Secretary of War for the action of the President. 
 The proceedings, findings, and sentence are 
 approved, and the sentence ^vill be duly exe- 
 cuted. " Held, that this was a sufficient authen- 
 tication of the judgment of the President and 
 that the order was not null and void on the 
 ground that it did not appear that the President 
 personally approved the proceedings and di- 
 rected the execution of the sentence. (U. S. v. 
 Fletcher, 148 U. S., 84; Ide v. U. S., 150 U. S. 
 517.') 
 
 WTiile the action of the President in respect 
 of the proceedings and sentences of courts- 
 martial is judicial, such action need not be 
 evidenced under his own hand. There is 
 nothing to indicate that the Secretary of War 
 assumed to confirm or disapprove or issue 
 orders in the case, and as his indorsement 
 showed that he was proceeding under article 
 65, and that he had received the record for the 
 purpose of being acted upon by the President, 
 the approval and the direction for the execu- 
 tion of the sentence was manifestly the acts of 
 the President. The presumption is that the 
 Secretary and the President performed the 
 duties devolved upon them respectively. 
 While it is not said in this case that the pro- 
 ceedings were submitted to the President, 
 from the statement that they had been for- 
 warded to the Secretary of War for the action 
 of the President followed by an approval 
 which could only eminate from the President, 
 the conclusion follows that the action taken 
 was the action of the President. (U. S. v 
 Fletcher, 148 U. S., 84; Ide v. U. S., 150 U. S., 
 517.) 
 
 The approval by the President sufficiently 
 appears where the record shows that the sen- 
 tence was submitted to the President, and his 
 approval appears over his signature at the foot 
 of a brief in the case, prepared in the Navy 
 Department; and the Secretary of the Navy 
 writes to the accused that the President has 
 
 approved the sentence. It is difficult to see 
 how the personal approval of the President 
 could appear more clearly than in this case. 
 (Bishop V. U. S., 197 U. S., 334.) 
 
 Action by convening authority absent 
 from his command.— See note to article 38, 
 A. G. N., under "Convening authority outside 
 his command." 
 
 Form of disapproval by convening au- 
 thority. — A paymaster in the Navy was sen- 
 tenced, inter alia, to be dismissed upon a charge 
 substantially of embezzlement. The convening 
 authority forwarded the record of proceedings 
 to the Navy Department with the following in- 
 dorsement: "Respectfully forwarded, with the 
 remark that the finding of the court is not sus- 
 tained by the e\ddence, which fails to show 
 that the accused received from the bank the 
 amoimt of money he is charged with having 
 lost." Held, that this indorsement can not be 
 deemed to be a disapproval of the finding and 
 sentence of the court; such disapproval should 
 be distinctly expressed. (16 Op. Atty. Gen., 
 312; see also 17 Op. Atty. Gen., 21, 22.) 
 
 Power of Secretary of the Navy over 
 sentences of courts-martial. — See note 
 above, under "Officer ordering the court; 
 President and Secretary of the Navy." See 
 also note to article 32, A. G. N. 
 
 The act of June 8, 1880, which created the 
 office of Judge Advocate General of the Navy, 
 provided that "under the direction of the Sec- 
 retary of the Navy " the Judge Advocate Gen- 
 eral shall "receive, revise, and have recorded 
 the proceedings of all coiu-ts-martial," etc.; 
 and prior to the act of February 16, 1909 (quoted 
 above, under this article), it appears to have 
 been the practice of the Secretary of the Navy, 
 without any express statutory authority, actu- 
 ally to set aside the proceedings of courts- 
 martial and to remit or mitigate any sentence 
 imposed by such courts if such action seemed to 
 him to be warranted after a careful review of 
 the record of proceedings. In 1908 the Secre- 
 tary recognized the desirability of specific leg- 
 islation on this subject, and he strongly advo- 
 cated the enactment of legislation previously 
 recommended. The result was the passage of 
 theactof February 16, 1909 (quoted above). (U. 
 S. ex rel. Harris v. Daniels, MacDonald, et al., 
 U. S. Circuit Court of Appeals, Second Circuit, 
 Jan. 6, 1922, 279 Fed. Rep., 844.) See act of 
 Apr. 9, 1906, sec. 3, quoted above under this 
 article, which recognized the Secretary's au- 
 thority to review courts-martial. 
 
 Section 9 of the act of February 16, 1909 
 (quoted above under this article), makes the 
 sentences of any naval com"ts-martial in a sense 
 conditional upon the approval of the Secretary 
 of the Navy, who is given power to set aside 
 the proceedings and to remit or mitigate, in 
 whole or in part, the sentence imposed. We 
 are not now called upon to consider all possible 
 questions and difficulties which might arise 
 under this provision. (U. S. ex rel. Hams v. 
 Daniels, MacDonald, et al., U. S. Circuit Court 
 of Appeals, Second Circuit, Jan. 6,. 1922, 279 
 Fed. Rep., 844.) 
 
 Under the Articles for the Government of the 
 Navy of July 17, 1862 (12 Stat., 600), neither 
 the President nor the Secretary of the Navy had 
 lawful authority to approve or disapprove the 
 
 1042 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 53. 
 
 sentence of dismissal in the case of an acting 
 master's mate, who was not a commissioned or 
 ■warrant officer, but the approval and confirma- 
 tion of the commander of the fleet, being the 
 officer who ordered the court, was all that was 
 requii'ed to give validity to the execution of 
 the sentence. The sentence in such a case 
 ha^dng in fact been approved by the Secretary 
 of the Navy, his approval was a nullity, and 
 no occasion is presented for a reN-iew of the Sec- 
 retary^' s action by the President Avith a \dew of 
 setting aside the Secretary's order, after the 
 sentence had been approved by the commander 
 of the fleet who ordered the court and carried 
 into execution. (11 Op. Atty. Gen., 251.) 
 
 That no one can lawfully act as re\'iewing 
 authority unless expressly authorized by 
 statue, see note to article 38, A. G. N., under 
 "Statutory authority necessary to convene 
 coxirts." 
 
 Action by ofla.cer not empowered to con- 
 firm sentence. — ^^^lile an officer convening a 
 court-martial may not have the power to con- 
 firm and execute the sentence, he has still abso- 
 lute power to disapprove and annul it. (16 Op. 
 Atty. Gen., 312,314.) 
 
 It is undoubtedly the proper practice for the 
 convening authority, in transmitting the pro- 
 ceedings to the authority having the power to 
 execute the sentence, to subscribe a formal 
 approval of the same, if he does not disapprove 
 of it; but the failure to state such approval can 
 not be construed as a disapproval. (16 Op. 
 Atty. Gen., 312, 314.) 
 
 Under the Articles for the Government of the 
 Navy, the rear admiral convening the court 
 was not obliged to confirm the sentence of dis- 
 missal. As the sentence in this case extended 
 to dismissal from the service, no confirmation 
 was necessary by the convening authority, 
 whose duty was discharged by forwarding the 
 papers to the President. (Bishop v. U. S., 197 
 U. S., 334, 341.) 
 
 Action of Judge Advocate General. — 
 Section 1199, Re\ised Statutes, making it the 
 duty of the Judge Advocate General of the 
 Army to "receive, revise, and cause to be re- 
 corded the proceedings of all courts-martial," 
 does not confer authority upon that officer to 
 reverse the proceedings of courts-martial. (Ex 
 parte Mason, 256 Fed. Rep., 384, 387.) _ 
 
 Applying the rule, "noscitur a sociis," the 
 word "re\ase " is to be read in connection with 
 the words that precede and follow it, and, thus 
 read, the duty it imposes is analogous to the 
 duty of receiving and recording the proceedings. 
 The language employed is more appropriate to 
 indicate the discharge of clerical duties than 
 the power to affirm, reverse, or modify the pro- 
 ceedings of courts-martial. (Ex parte Mason, 
 256 Fed. Rep., 384, 387.) 
 
 It is not intended to intimate that it is not 
 the province and the duty of the Judge Advo- 
 cate General to revise the proceedings of courts- 
 martial so far as may be necessary to rectify 
 errors of form, and to point out errors of sub- 
 stance which, in his judgment, should be cor- 
 rected by the proper authorities; nor is it 
 doubted that, as to all such topics as are within 
 the purview of his official scrutiny, his opinion 
 is entitled to that respectful consideration 
 which is due to the dignity and importance of 
 
 the position which he holds. (Ex parte Mason, 
 256 Fed. Rep., 384, 387.) 
 
 See act of June 8, 1880, quoted above, under 
 this article, as to duties of Judge Advocate 
 General of the Navy. 
 
 Reconvening of covirt for revision of 
 proceedings and sentence.— The President 
 may direct a naval court-martial to reconsider 
 their judgment in cases where his previous 
 sanction is necessary for the execution of such 
 judgment; as to his power in other cases, no 
 opinion expressed. (4 Op. Atty. Gen., 19.) 
 
 In militarj^ courts-martial, the power of the 
 commander by whom they have been con- 
 vened to direct them, in the event of disap- 
 proval, to revise their sentence and reconsider 
 the proceedings, has never been doubted; and 
 it is rested solely upon the ground that the 
 sentences of such courts are not to be put in 
 execution until approved by that conunander. 
 (4 Op. Atty. Gen., 19.) 
 
 The revisal of a sentence by the same coiu"t 
 which pronounced it is not, properly speaking, 
 an appeal, which always implies the review by 
 one court of judicature of the sentence of an- 
 other. It is no more than the reconsideration 
 of the case by the same tribunal on a remittal 
 and recommendation of the commander, who 
 is authorized to approve or suspend its sen- 
 tences. (1 Op. Atty. Gen., 296.) 
 
 Where an officer of the Army was brought to 
 trial before a court-martial for conduct unbe- 
 coming an officer and a gentleman, and he 
 pleaded in bar of trial that he had been tried 
 on the same facts in a State court upon the 
 charge of manslaughter, and his plea in bar was 
 sustained by the court-martial, whose judg- 
 ment was properly disapproved by the com- 
 manding general; but the latter omitted to or- 
 der a revisal by the court: Held, that it would 
 be clearly too late for his successor to order such 
 a revisal if the court had in the meantime been 
 dissolved; and if not dissolv^ed, the Attorney 
 General would nevertheless be strongly in- 
 clined to think it too late to order a revisal by 
 the same court after a lapse of two years from 
 the date of the original proceedings; but an ex- 
 amination of precedents may disclose that they 
 have settled the practice the other wav. (3 
 Op. Atty. Gen., 749.) 
 
 It is in the power of the Secretaiy or other 
 authority appointing a court-martial to order 
 the case' back for revision, both in the Army 
 and Navy. But this must be done before the 
 court has actually been dissolved, or before it 
 has adjourned v\ithout day, which is to all prac- 
 tical purposes the dissolution of a court-martial. 
 (6 Op. Atty. Gen., 200.) 
 
 Where a court-martial, having passed sen- 
 tence, adjourned without day, no question 
 exists as to the legality of an order subsequently 
 issued by the Secretan,^ of War, who convened 
 the court, ordering it to reassemble to revise its 
 sentence, it being presumed that such adjourn- 
 ment was the act of the court only, which had 
 no lawful power to terminate its own existence, 
 and which adjourned without day to await the 
 action of the department. If there had been 
 some order of the Secretary of War, in whatever 
 form of words, to operate as a dissolution of the 
 court, then it would be necessary to say that it 
 could not be convened anew as the same court, 
 
 1043 
 
Sec. 1624, Art. 53. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 and of course could not take up the proceedings 
 for reconsideration. But tlie present appears to 
 have been the case of a court, not then dis- 
 solved by the appointing power, and of course 
 subject to be assembled for reA-ising its record, 
 as it was by the order of the department. (7 
 Op^ Atty. Gen., 338.) 
 
 The power of the Secretary of War, or the Sec- 
 retary of the NaA^, or other lawful authority, to 
 send back a case to the court-martial for re\isal, 
 is called a singularity in jurisprudence. On the 
 other hand, its apparent singularity arises from 
 not duly regarding the nature of a court-martial 
 and its relation to the approAdng power. Un- 
 less the sentence of a court-martial has been 
 approved or disapproved, it still remains sub 
 judice. In fact, the analogy of a court-martial 
 is that of a jiuy in the trial of a civil case, the 
 appro\'ing power in the former occupying the 
 relation of the judge in the latter. The judge 
 remands the case to the jury for further consid- 
 eration. The verdict must'be accepted by the 
 judge and judgment rendered accordingly, be- 
 fore the verdict can have its complete execu- 
 tion and effect, whether of con\iction or ac- 
 quittal. So in the corresponding case it must 
 be with the proceedings of a court-martial as 
 respects the approiing power. (6 Op. Atty. 
 Gen., 200, 206.) 
 
 Revisal by a court-martial is not a case of 
 new trial. A new trial is a rehearing of the 
 case. A court-martial on re\dsal does not re- 
 hear the case; it only reconsiders the record for 
 the purpose of correcting or modifying any 
 conclusions thereon. The true analogy of such 
 a re\isal, to take an example from the practice 
 of ciAdl courts, is the case of a jury sent out by 
 the coiu't to reconsider its verdict. Such is the 
 whole current of authorities as well in the 
 United States as in Great Britain. (6 Op. 
 Atty. Gen., 200.) 
 
 If the jury, through mistake or evident par- 
 tiality, deliver an improper or an informal or 
 insensible verdict, they may he directed by the 
 court to reconsider it and remanded for that 
 purpose; but it is unheard of that after the dis- 
 missal of the jury and the adjournment of the 
 court without day the judge shall at a subse- 
 quent time reassemble the jurors and call upon 
 them to re\dse their verdict. This doctrine, 
 which is reasonable in itself, must be applied 
 to the question of re\i8al by courts-martial. 
 (6 Op. Atty. Gen., 200.) 
 
 It is doubtful if the approving power in this 
 country may send a court-martial back for re- 
 vision any number of times. By law in Eng- 
 land before the Revolution it was enacted that 
 a re\-isal shall be ordered only once, and it is 
 the general rule that English statutes passed 
 before the Revolution and in amendment of the 
 common law are to be assiuned as part of the 
 common law of the colonies. (6 Op. Atty. Gen. , 
 200, 203, 204.) 
 
 The power of revisal is one which involves 
 much contingent delay and consequent hard- 
 ship to the officer on trial, and therefore is not 
 one to be favored, or at least not to be main- 
 tained in violation of any principle of general 
 right and justice appertaining to the govern- 
 ment of the Army or Navy. (6 Op. Atty. Gen. , 
 200, 208.) 
 
 Where the sentence of a court-martial was re- 
 turned by the Secretary of the Navy for revision, 
 and a new and more severe sentence substi- 
 tuted by the court, which latter sentence was 
 mitigated by the President, and it was there- 
 after contended, on behalf of the accused, that 
 the proceedings in re^'ision were null and void 
 and that the first sentence only should be exe- 
 cuted: Held, that if the proceedings in revision 
 were void, then all which went before is void; 
 because the first sentence of the court has never 
 been approved, and it is too late now to do it, 
 the President ha\'ing in the meantime remitted 
 and pardoned so much of the second sentence 
 as remained unexecuted. (6 Op. Atty. Gen., 
 200, 203. ) 
 
 The officer convening a na^•al court-martial 
 has authority to send back to the court the 
 record of its proceedings in any trial, with the 
 finding and sentence, for the reconsideration of 
 such coui't as to revision of the sentence ; and the 
 court is authorized to take up the case and revise 
 it, notwithstanding that it has in the meantime 
 proceeded with another trial, and notwithstand- 
 ing that one member of the coiKt who partici- 
 pated in the original sentence had been de- 
 tached during the succeeding trial and resumed 
 his seat to participate in the revision of the orig- 
 inal sentence; the substituted member, who 
 took his place during the second case, with- 
 drawing and not participating in the revision of 
 the original sentence. (In re Reed, 20 Fed. 
 ("as. No. 11636.) 
 
 Where, pursuant to regulations, a general 
 court-martial is duly ordered, the officer clothed 
 with the reviewing authority may, before it ia 
 dissolved, direct it to reconsider its proceedings 
 and sentence ; and if it, upon being reconvened, 
 renders a more severe sentence, which he ap- 
 proves, such sentence can not be collaterally 
 impeached for mere errors or irregularities, if 
 any such were committed by the court while 
 acting within the sphere of its authority. (Ex 
 parte'^Reed, 100 U. S., 13.) 
 
 A naval court-martial which has returned its 
 proceedings to the Secretary of the Navy and 
 been adjourned by him until further order may 
 be reconvened by him to reconsider those pro- 
 ceedings. (Smitii V. Whitney, 116 U. S., 167.) 
 
 The action of the President in twice returning 
 the proceedings of a court-martial convened by 
 him, urging a more severe sentence, was author- 
 ized by law; and a sentence made after such 
 action and in consequence of it was valid. 
 (Swaim v. U. S., 165 U. S., 553, 564.) 
 
 As to absence of members on revision, see note 
 to article 46, A. G. N. 
 
 Court reconvening of its own motion for 
 revision of sentence. — Courts-martial have 
 power to reconsider any judgment and sentence 
 rendered by them, during the term or sitting, 
 and to change the judgment and sentence, even 
 to death, where the former imposed only im- 
 prisonment. (1 Op. Atty. Gen., 296.) 
 
 In this case the court sentenced the accused 
 to confinement at hard labor with a ball and 
 chain attached to his leg for the remaining term 
 of his enlistment, etc.; and having adjourned 
 until the ensuing day, at the suggestion of one 
 of the members of the court the sentence in the 
 case was reconsidered, and after due deliberation 
 
 1044 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 53. 
 
 the court substituted the sentence that he, the 
 accused, '"be shot to death." (1 Op. Attv. 
 Gen., 296. 1 
 
 The term of a court-martial continues from 
 the time of its assemblage until its adjournment 
 sine die. A general court-martial convened for 
 general purposes, that is, for the trial of such 
 prisoners as may be bi'ought before it, continues 
 a court with full powers while it has any busi- 
 ness to do, of which it alone is the judge; and 
 while it does so continue a court, its power of 
 judicial deliberation and decision over all the 
 subjects which may have 1 'een brought before it 
 is as full on the last day of its sittings as on any 
 preceding day. (1 Op. Atty. Gen., 296.) 
 
 Accorchng to the authorities on military law, 
 the court is not dissoh^ed even ])y its own ad- 
 journment sine die; but can be finally dis- 
 solved only by the authority of the officer who 
 called it, being, until such dissolution, subject 
 to be reconvened by his order to reconsider the 
 opinion thev have expressed. (1 Op. Atty. 
 Gen., 296.) " 
 
 Dismissal; acting master's mate. — An 
 acting master's mate is not a warrant officer of 
 the Navy. A sentence dismissing him from 
 the ser\'ice by a court-martial convened by the 
 commander of a fleet may be lawfully executed 
 on the confinnation of the officer ordering the 
 court. (11 Op. Atty. Gen., 251.) 
 
 Reduction of officer to rating of sea- 
 man. — -It is deemed ad\'isable, as a matter of 
 policy, although not specifically required by 
 statute, to submit to the President for confinna- 
 tion the sentence of a general court-martial 
 reducing a warrant officer to the rating of ordi- 
 naiy seaman (now seaman, second class), inas- 
 much as such sentence deprives the accused of 
 his position as a warrant officer in the Navv. 
 (Xavy Dig., 1916, p. 517; C. M. O. 11-1916; 
 C. M. 0. 18.5-1919; see art. 9, A. G. N.) 
 
 Promulgation of sentence. — The promul- 
 gation of the sentence of a court-martial does 
 not affect the validity of the sentence, which 
 becomes final and operative when approved by 
 proper authority. (Lvon v. U. S., 48 Ct. Cls., 
 SO.') 
 
 The promulgation of the sentence of a court- 
 martial is for the information of the public, and 
 particularly for the information of the military 
 arm of the Government. (Lyon v. U. S., 48 Ct. 
 Cls., 30.) 
 
 If promulgation were essential, the lapse of 
 time after approval would not operate either to 
 nullifj^ or modify the sentence, but would relate 
 back and make effective such proceedings. 
 (Lyon r. U. S., 48 Ct. Cls., 30.) 
 
 Judgment of court-martial as to la^w and 
 facts. —The court which hears the witnesses is 
 best qualified to scrutinize and balance their 
 testimony, possessing as it does the advantage of 
 personal contact and observ'ation so essential in 
 reaching a just conclusion from lengthy and 
 conflicting statements. fl8 Op. Atty. Gen., 
 113, 119.) 
 
 It is improper for the re^ising authority to 
 make any decision in regard to the effect of a 
 certain act of Congress in cases where the record 
 is defective. (3 Op. Atty. Gen., 545. In this 
 case the question was presented as to the effect 
 of the law contained in sec. 1422, R. S., as ap- 
 plied to one who enlisted prior to the date 
 
 thereof, and who was charged with disobedience 
 of orders committed after the date his enlistment 
 would have expired except for said act. See 
 note to sec. 1422.) 
 
 When charges have been referred to a general 
 court-martial which they have jurisdiction to 
 try, the questions of what finding should be 
 had upon them, whether the accused should be 
 found guilty and sentenced to punishment, or 
 whether for want of satisfactory proof or by 
 reason of special circmnstances attending it he 
 is entitled by law to an acquittal and exemp- 
 tion from punishment, are questions to be dis- 
 posed of by the court according to their judg- 
 ment, acting under the solemn sanction of their 
 oaths and obligations. In this respect their 
 powder is full. (4 Op. Atty. Gen., 410, 412. ) 
 
 In the absence of any such error of the court 
 in the admission or rejection of testimony as 
 would work or was liable to work injustice to 
 the accused, there is no reason on these grounds 
 to disturb the findings of the court. (22 Op. 
 Atty. Gen., 589.) 
 
 Of questions not depending upon the con- 
 struction of statutes, but upon unwritten mili- 
 tary law or usage, within the juriscUction of 
 courts-martial, military or naval officers, from 
 their training and experience in the service, 
 are more competent judges than the courts of 
 conmion law. (Smith v. Wliitney, 116 U. S., 
 167, 178.) 
 
 See below, under "Jurisdiction of ci\il 
 courts"; and see note to article 42, A. G. N., 
 under "Admissibility of e\'idence; decision of 
 court-martial." 
 
 Objections to charges and specifica- 
 tions. — An objection to the charges and specifi- 
 cations on technical grounds should be promptly 
 taken by the accused, and comes too late 
 after he proceeded to trial without objection 
 and permitted the court to enter on an investi- 
 gation into all the different specifications and 
 himself brought forward his defense as to each 
 of them, m Op. Atty. Gen., 589, 595.) 
 
 Irregularities and fatal defects. — It is a 
 vain conceit that because the proceedings are 
 irregular, and fatally irregular (if the exception 
 be taken in proper time), therefore the judg- 
 ment once suffered to be entered up is void. 
 There are many things in the summoning and 
 constitution of juries and in the conduct of 
 a trial that make the verdict void; yet if ad- 
 vantage be not taken of them by motion in 
 arrest of judgment, no writ of error lies even 
 where there is a competent court of errors. 
 And it is veiy proper it should be so ; the repose 
 of society, the putting an end to controversy 
 and litigation, are more desirable than mere 
 accuracy of procedure, or even the justice of a 
 particular case, not to mention that acquies- 
 cence implies consent, and consent cures error. 
 (4 Op. Atty. Gen., 170.) 
 
 Commodore Barron was tried by a competent 
 court-martial whose sentence was approved by 
 the President. After the lapse of 35 years it is 
 impossible for the executive department to look 
 into the particulars of the trial, on an allegation 
 that it wasirregular. If there were irregularities 
 in the trial, they should have been alleged before 
 the sentence was confirmed. (4 Op. Atty. Gen., 
 170. In this case the question was attempted 
 to be raised whether the fact that witnesses 
 
 1045 
 
Sec. 1624, Art. 53. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 were sworn by the judge advocate and not 
 by the president of the court, there being no 
 objection at the time, Wtiated tlie proceedings.) 
 
 If a contrary precccU^nt were set, tlie Navy 
 Department and the oflice of the Attorney Gen- 
 eral woidd be turned into a permanent court of 
 errors, to try over all the cases disposed of since 
 the foundation of the Government. And if the 
 present Sei-retary of the Na\'y can set aside a 
 judgment of bis predecessors, why shall not any 
 of his successors for 50 vears to come set aside 
 his? (4 Op. Atty. Gen.', 170.) 
 
 Even though it appear that the proceedings 
 of a naval court-martial were exceedingly ir- 
 regular, and the sentence peculiarly harsh and 
 severe, after the sentence of dismissal has been 
 pronounced, approved, and carried into effect 
 there is no means of reviewing it; the judgment 
 is thereafter irreversible, but the effect of the 
 judgment may be removed in the exercise of 
 the appointing power. (4 Op. Atty. Gen., 274.) 
 
 Where an officer was dismissed from the serv- 
 ice pursuant to the sentence of a court-mar- 
 tial, which sentence was null and void because 
 the court was illegally constituted, held that 
 as it was competent to the President to per- 
 form this act independently of the sentence, 
 it v,-ill be necessary, in order to restore him to 
 his rights, to nominate him to the Senate with 
 the condition that he shall take rank from the 
 date of his former commission. (2 Op. Atty. 
 Gen., 414; seealso Brown r. Root, 18App. D. C, 
 239; compare U. S. v. Brown, 206 U. S., 240.) 
 
 After the sentence of an officer of the Army 
 by a court ha\'ing j urisdiction has been approved 
 and executed by one President, it can not be 
 re\dsed bv his successor. (6 Op. Atty. Gen., 
 506.) 
 
 In the consideration of all questions of this 
 class, the distinction to be remembered is that 
 of things void and things voidable; null for want 
 of jurisdiction, or erroneous only, for misjudg- 
 ment of a tribunal having competent jurisdic- 
 tion to hear and determine the case. If the court 
 had not lawful cognizance of the matter, its sen- 
 tence is void, it gives no right, it bars no right, 
 it binds nobody, and all concerned in executing 
 such a sentence are trespassers. If the court has 
 jurisdiction, it may rightfully decide every ques- 
 tion which occurs in the case, and the errors and 
 irregularities, if any exist, are to be corrected 
 by some direct proceeding before the same court 
 to set them aside, or in an appellate court. (6 
 Op. Atty. Gen., 506.) 
 
 If the court erroneously overruled a plea in 
 bar of trial based on the statute of limitations, 
 it would be an erroneous decision only, not a 
 void judgment, and the error would be subject 
 to be reviewed and corrected only by the com- 
 manding general. (6 Op. Atty. Gen., 506.) 
 
 WTiere an officer of the Navy was tried by 
 court-martial and sentenced to d.ismissal, which 
 sentence was approved by the President of the 
 United States and duly carried into effect by 
 the Secretary of the Navy, held that the dis- 
 missal is a consummated fact, whether the sen- 
 tence was lawful or not, and if the party be re- 
 stored to the serxdce it can only be by renom- 
 ination to the Senate and reappointment. (7 
 Op. Atty. Gen., 98.) 
 
 In the present stage of the case, no question 
 on the proceedings of the court can be raised 
 
 save that of nullity of the sentence for want of 
 jurisdiction. Such a question is one of pure and 
 strict legal right in the consideration of which 
 no collateral element can by possibility enter, 
 whether of regard or of disregard for the dis- 
 missed officer. It must be dealt with in tlio same 
 spirit as the solution of a problem of arithmetic 
 or algebra. (7 Op. Atty. Gen., 98.) 
 
 There is a multitude of irregularities in the 
 proceedings of courts, whether martial or others, 
 which a party may avail himself of to his ad\'an- 
 tage at the projier time. Where the accused did 
 not see fit to make any question of this natiire 
 at the proper time, it is too late for him to do so 
 after the sentence has been duly confirmed and 
 executed. (7 Op. Atty. Gen., 98.) 
 
 It is well settled that it is beyond the power 
 of the President to annul or revoke the sentence 
 of a court-martial which has been approved 
 and executed under a former President, unless 
 the record should show that from some cause 
 the proceedings are absolutely null and void. 
 The rule is not confined to cases in which by 
 the articles of war the sentence of the court is 
 required to be approved by the President. (10 
 Op. Atty. Gen.. 64.) 
 
 If any irregularities occurred in the proceed- 
 ings of the court-martial, it was the right and 
 duty of the accused to have taken exception to 
 them before they were approved and con- 
 firmed by the commanding officer. Having 
 neglected to do so, he has no redress except by 
 an appeal to the executive clemency. (10 
 Op. Atty. Gen., 64.) 
 
 The accused being a soldier in the United 
 States service, and therefore amenable to a 
 court-martial, and the court having been con- ' 
 vened by the proper authority and composed 
 of the proper officers, duly qualified to act, 
 and therefore being lawfully constituted and 
 ha^dng undoubted jurisdiction of the case, it 
 is impossible that any subsequent irregularities 
 could render their action a nullity when it was 
 confirmed without objection by the command- 
 ing officer and carried into execution by the 
 President of the United States. (10 Op. Atty. 
 Gen., 64.) 
 
 The sentence of a military commission in a 
 case in which it was without jurisdiction was 
 null and void; the moneys and effects of the 
 accused, seized by officers of the Government 
 in execution of so much of the sentence as im- 
 posed a fine of $10,000, should be restored to 
 the accused, unless they have been covered 
 into the Treasury of the "United States and are 
 thus beyond the control of the executive. (12 
 Op. Atty. Gen., 128.) 
 
 There must be jurisdiction to give the 
 judgment rendered as well as to hear and deter- 
 mine the cause. If a magistrate having au- 
 thority to fine for assault and battery should 
 sentence the offender to be imprisoned in the 
 penitentiary or to suffer the punishment pre- 
 scribed for homicide, his judgement would be 
 as much a nullity as if the preliminaiy juris- 
 diction to hear and determine had not existed. 
 Every act of a court beyond its jurisdiction is 
 void. (Ex parte Reed, 100 U. S., 13, 23.) 
 
 Where there is no law authorizing the court- 
 martial, or where the statutory conditions as 
 to the constitution or jurisdiction of the court 
 are not observed, there is no tribunal authorized 
 
 1046 
 
The Navy, 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 53. 
 
 by law to render the judgment. In such case 
 the sentence of the court is absolutely void. 
 (Keyes v. U. S., 109 U. S., 336, 340.)_ 
 
 It is not always very easy to determine what 
 matters go to the jurisdiction of a court, so as to 
 make its action when erroneous a nullity; but 
 the general rule is that when the court has 
 jurisdiction by law of the offense charged and 
 of the party who is charged, its judgments are 
 not nulHties. (Carter i'. McClaughrv, 183U. S., 
 365, 390.) 
 
 An erroneous designation of the place for 
 executing a sentence of imprisonment imposed 
 by a court-martial does not go to the jurisdic- 
 tion to sentence, and does not entitle the ac- 
 cused to his discharge on habeas corpus; but he 
 should be retained in custody for a new designa- 
 tion. (Givens r. Zerbst, 255 U. S., 11, affirm- 
 ing ex parte Givins, 262 Fed. Rep., 702.) 
 
 Presence of the judge advocate in closed 
 court: See note to article 45, A. G. N. 
 
 For other cases, see below under "Jurisdic- 
 tion of ci\il courts' ' ; and see notes to Articles 
 38, 39, 40, 42, 46. 47, and 52, A. G. N. 
 
 New trial. — The President of the United 
 States has the power to order a new trial before 
 a court-martial where, in his opinion, the court 
 erred on the first trial in excluding proper 
 testimony and where the party accused desired 
 such new trial. (1 Op. Atty. Gen., 233.) 
 
 The plea of autre foits acquit, or con\dct, is 
 the pri\'ilege of the accused, which he may use 
 or waive at pleasure; if he does not choose to 
 vise it, courts-martial vriW not take notice of it 
 so as to bar a trial. (1 Op. Atty. Gen., 233.) 
 
 WTiere the proceedings of a naval court- 
 martial were irregular and void, because the 
 i"udge advocate was not sworn, the accused may 
 )e legally and constitutionally put upon 
 another trial; but not before the same officers 
 who constituted the first court. (3 Op. Atty. 
 Gen., 396; compare note to art. 40, A. G. N.) 
 
 He has not been tried by a tribunal legally 
 competent to try and punish him. In our civil 
 tribunals, if a party be con\-icted upon an in- 
 sufficient indictment and judgment be aiTested, 
 the accused may be again put upon his trial; 
 and this is not considered as an infraction of 
 that injunction of the Constitution which 
 forbids that any person be twice put in jeopardy 
 for the same offense. (3 Op. Atty. Gen., 396.) 
 
 There can not be a new trial at the instance 
 of the Government, although there may be a 
 new trial bv court-martial on application of the 
 party. (6 "Op. Atty. Gen., 200, 205.) 
 
 See note to Constitution, fifth amendment, 
 under "II. Protection against double 
 jeopardy." 
 
 Court-martial bar to trial in civil court. — 
 Where the accused was indicted in a civil 
 court of the United States, duly arrested and 
 brought into court to answer said indictment; 
 whereupon, before his arraignment, at the re- 
 quest of the Department of Justice he was de- 
 livered to the mihtary authorities to be dealt 
 with in accordance with military law; and 
 upon his trial by Army court-martial he was 
 conA-icted and sentenced to imprisonment for 
 15 years, but the reviewing authority took the 
 following action: "The sentence is disap- 
 proved. Private Block will be released from 
 confinement and restored to duty" ; and he was 
 
 thereafter arraigned in the civil court upon the 
 pending indictment and pleaded former ac- 
 quittal, setting forth the proceedings which had 
 been had by the court-martial and the action of 
 the reviewing authority above quoted: Held, 
 that the plea sets forth a good defense and that 
 the proceedings before the court-martial con- 
 stitute a bar to his prosecution in the civil 
 courts of the United States upon a charge based 
 upon the same act. (U. S. v. Block, 262 Fed. 
 Rep., 205. See note above, under "Effect of 
 approval or disapproval.") 
 
 The judgment of a court-martial ha\dng ju- 
 risdiction to try an officer or soldier for a crime 
 is entitled to the same finality and conclusive- 
 ness as to the issues involved as the judgment 
 of a civil court in cases ^vithin its jursidiction is 
 entitled to. (Grafton v. U. S., 206 U. S., 333, 
 holding that a ci^^.l court of the Philippine 
 Islands did not have jurisdiction to try a soldier 
 for an offense for which he had previously been 
 tried by Army court-martial.) 
 
 See note to Constitution, fifth amendment, 
 under "II. Protection against double jeopardy." 
 
 Jurisdiction of Congress to review 
 courts-martial.— The Attorney General ought 
 not to express an official opinion to the Commit- 
 tee on Mihtary A ffairs on the question whether 
 Congress has power to re\iew the sentence of a 
 general court-martial. It is for Congress itself 
 to consider and decide upon the extent of its 
 power over a matter of this description; and 
 it would hardly be deemed to be within the 
 legitimate scope of the duties of the Attorney 
 General, who is a subordinate officer of the ex- 
 ecutive department, to attempt to mark out 
 the Umits of the legislative power. (2 Op. 
 Atty. Gen., 499.) 
 
 See note to Constitution, Article I, section 7, 
 clause 2, under ''Veto of bill authorizing resto- 
 ration of dismissed officer," and ' 'Veto of bill to 
 annul the finding and sentence of a court- 
 martial." 
 
 Competency as witness after conviction 
 by court-martial. — Conviction of a mihtary 
 offense by court-martial does not make a wit- 
 ness incompetent to testify in the ci\dl courts 
 in a criminal prosecution. (Reed v. U. S., 252 
 Fed. Rep., 2L) 
 
 Jurisdiction of civil courts. — The power 
 to hear and determine a cause is jurisdiction. 
 There is a distinction between jurisdiction and 
 its exercise. When it appears on the return to 
 a writ of habeas corpus that a petitioner is held 
 for trial by a naval court-martial for offenses 
 charged to have been committed while in the 
 naval service, the only questions to be deter- 
 mined by the civil court are, whether the 
 court-martial has jurisdiction to try the peti- 
 tioner for the offenses charged, and is it pro- 
 ceeding regularly in the exercise of that juris- 
 diction. (In re Bogart, 3 Fed. Cas. No. 1596.) 
 
 A court-martial is a lawful tribunal, existing 
 under the Constitution and acts of Congress, 
 and is supreme while acting within the sphere 
 of its jurisdiction. (In re Bogart, 3 Fed. Cas. 
 No. 1596.) 
 
 A former conviction and the statute of limi- 
 tations are matters of defense on the merits, 
 which must be investigated in the exercise of 
 jurisdiction, and not facts upon which the 
 jurisdiction to hear and determine the charge 
 
 1047 
 
Sec. 1624, Art. 53. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 depends. Those matters can not be inquired 
 into on a petition for discharp;e on habeas cor- 
 pus. (In re Bo<iart, 3 Fed. ('as. No. 1596.) 
 
 Civil courts have no jurisdiction to interfere 
 with the military tril)unals while proceeding 
 refjularly in the exercise of their jurisdiction 
 to try parties accused of desertion fi'om the 
 Anny. (In re White, 17 Fed. Rep., 723.) 
 
 Courts-martial are la^vful tribunals, existing 
 by the same authority as civil courts of the 
 United States, having the same plenaiy juris- 
 diction in offenses by the law military as the 
 latter courts have In controversies within their 
 cognizance; and in their special and more limi- 
 ted sphere are entitled to as untrammeled ex- 
 ercise of their powers. (In re Davison, 21 Fed. 
 Rep., 618.) 
 
 Provided a coiut-martial has jmisdiction to 
 hear and detennine and to render the particu- 
 lar judgment or sentence imposed, however 
 erroneous the proceedings may be, they can 
 not be reviewed collaterally by the civil 
 courts upon habeas corpus. (In re Davison, 
 21 Fed. Rep., 618.) 
 
 The military courts have jurisdiction to try all 
 military offenses committed by parties enUsted 
 in the military service of the United States, 
 among which is the offense of desertion. The 
 civil courts have no authority to review, con- 
 trol, or in any manner interfere with the action 
 of the mihtary tribunals while regularly en- 
 gaged in the exercise of their appropriate 
 jurisdiction. (In re Zimmerman, 30 Fed. 
 Rep., 176.) 
 
 In habeas corpus proceedings to review the 
 sentence of a naval court-martial, the only 
 questions which can be inquired into are as to 
 the jurisdiction of the court over the person of 
 the accused and the offense charged, and 
 whether it acted within the scope of its lawful 
 powers. (In re Crain, 8 1 Fed Rep., 788.) 
 
 It has been repeatedly held that where the 
 charge against a person tried in a military court 
 is %vithin the jurisdiction of the court, and is 
 authorized by Army or Navy regulations, that 
 the manner of setting out the offense is a matter 
 of pleading rather than of jurisdiction; that it is 
 for the court having such jurisdiction to decide 
 upon the validity of the pleadings necessary to 
 bring th at charge before the court ; that the only 
 question before the civil court is whether or not 
 the military court had the right to try and de- 
 termine the case; that the jurisdiction of the 
 trial court can not depend upon its decision on 
 the merits of the case, but upon the court's right 
 to hear and decide it; that where a military or 
 naval triliunal has the right to try the cause, 
 even though a civil court had the concurrent 
 right, the latter can' not enter upon the consid- 
 eration of the evidence adduced before the 
 court-martial or of the question whether the ac- 
 cused was guilty of the offense over which the 
 military court has jurisdiction; that if the mili- 
 tary court bad jurisdiction to impose sentence 
 authorized by the regulations of the Army or 
 Navy, the ci\ il court can not pass upon the se- 
 verity of such sentence; that errors in law, how- 
 ever numerous, committed by the trial court 
 in a cause within its jurisdiction, can be revised 
 only by appeal or writ of error in the court ex- 
 ercising supervisory jurisdiction; that it is only 
 where the trial court is without jurisdiction of 
 
 the person or the cause, and the party is sub- 
 jected to illegal imprisonment, that a WTit of 
 habeas corpus may be invoked and the party 
 discharged from imprisonment; that civil courts 
 are not courts of error (o re\i<?w the proceedings 
 and sentence of a court-martial where such 
 court-martial has jurisdiction of the offense and 
 of the person of the accused, has complied with 
 the statutory retjuirements governing the pro- 
 ceedings of the court, and acts within the scope 
 of its lawful powers. (Ex parte Dickey, 204 
 Fed. Rep., 322, 32.5.) 
 
 The fact that power, wherever lodged, may 
 be abused, furnishes no solid objection against 
 its exercise, and no just inference against its ex- 
 istence. (In re Bogart, 3 Fed. Cas. No. 1,59G.) 
 
 The Secretary of the Navy is the final re- 
 \'ievving authority provided by law to act upon 
 records of courts-martial in cases which do not 
 extend to the loss of life or to the dismissal of a 
 commissioned or warrant oflicer; and where he 
 approved a sentence of imprisonment imposed 
 upon an enlisted man by a court-martial con- 
 vened by the commander in chief of the Atlan- 
 tic Fleet, who had also approved such sentence, 
 the sentence could not be re^^sed bv the civil 
 courts. (Ex parte Dickev, 204 Fed. 'Rep., 322, 
 326.) 
 
 The powers conferred on Congress by the Con- 
 stitution to make rules for the government and 
 regulation of the land and naval forces, and the 
 power to create certain Federal courts, are inde- 
 pendent of each other, and hence the determi- 
 nation of naval courts-martial within their juris- 
 diction are not reviewable by the civil courts. 
 (Ex parte Dickey, 204 Fed. Rep., 322. ) 
 
 Civil courts have no appellate jurisdiction to 
 review the proceedings of courts-martial; and 
 will not interfere mth the judgments of courts- 
 martial in habeas corpus proceedings if it ap- 
 pears that they have j urisdiction of the person 
 and subject matter. Errors of procedure in 
 military courts can be corrected only by the 
 proper military authorities. (Ex parte Tucker, 
 212 Fed. Rep., 569.) 
 
 A civil court has no power to interfere with 
 the conduct of a court-martial except where that 
 court has exceeded its jurisdiction, and if it 
 originally had jurisdiction it must be shown that 
 at some point in the proceedings, under its gov- 
 erning law, it lost such jurisdiction. (U. S. v. 
 Hunt, 254 Fed. Rep., 365.) 
 
 The suing out and service of a writ of habeas 
 corpus by an Army officer after his trial by 
 court-martial but before the service upon him 
 of the order promulgating the sentence, involv- 
 ing dismissal, held, not to oust the court-martial 
 of jurisdiction nor to affect the validity of the 
 order subsequently served. (U. S. v. Barry, 
 260 Fed. Rep., 291.) 
 
 Where the offense charged is trivial, and the 
 punishment is likewise trivial, a civil court 
 should not be called upon to examine the legal- 
 ity of the sentence of a court-martial; and when 
 so called upon is not required by substantial 
 justice to apply a stricter rule than that which 
 prevails in ordinary criminal cases. (Weirman 
 -i;.U. S.,36Ct. Cls.,236.) 
 
 Undoubtedly errors are committed by courts- 
 martial which a civil tribunal would regard as 
 sufficient ground for a reversal of their judg- 
 ments if it were sitting as an app)ellate court. 
 But there is alwavs this radical difference be- 
 
 1048 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 53. 
 
 tween an appellate court sitting for the correc- 
 tion of errors and a civil court into which the 
 record of a court-martial is collateral — in the 
 former there is not a failure of justice; the ap- 
 pellate court may reverse a judgment or pre- 
 scribe another or award a new trial ; in the latter 
 the court must either give full effect to the sen- 
 tence or pronounce it wholly void. (Swaim v. 
 U. S., 28 Ct. Cls., 217; affirmW, 165 U._S.,_553.) 
 
 Where a court-martial had not jurisdiction 
 over the subject matter, or ha^^.ng jurisdiction 
 has failed to ohser\'e the rules prescribed by 
 the statute for its exercise, all of the parties to 
 such' illegal trial are trespassers upon a party 
 aggrieved by it, and he may recover damages 
 from them on a proper suit in a ci\Tl coiu"t by 
 the verdict of a jurv. (D^^les v. Hoover, 20 
 How., 65, 81.) 
 
 If a coiirt-martial has no jurisdiction over 
 the subject matte* of the charge it has been 
 convened to try, or shall inflict a punishment 
 forbidden by law, though its sentence shall be 
 approved by the officers haA-ing a rexdsory 
 power over it, ci\'il courts may, on an action 
 by a party aggrieved by it, inquire into the 
 want of the court's juiisdiction and give him 
 redress. (DjTies v. Hoover, 20 How., 65, 82.) 
 
 Persons belonging to the Army and Navy' are 
 not subject to illegal or irresponsible coiu-ts- 
 martial when the law for convening them and 
 directing their proceedings of organization and 
 for trial have been disregarded. In such cases 
 everything which may be done is void, not 
 voidable but void; and ci\-il courts have never 
 failed upon a proper suit to give a party re- 
 dress who has been injured by a void process or 
 void judgment. (D\Txe3 v. Hoover, 20 How., 
 65, 81.) 
 
 It is only where a coiirt has no jiuisdiction 
 over the subject matter, or ha\'ing such jiuis- 
 diction is bound to adopt certain rules in its 
 proceedings from which it de\dates, whereby 
 the proceedings are rendered coram non 
 judice, that an action will lie against the of- 
 ficer who executes its judgment. (Dynes v. 
 Hoover, 20 How., 65.) 
 
 When we speak of proceedings in a cause, or 
 for the organization of the court and for trials, 
 we do not mean mere irregularity in practice 
 on the trial or any mistaken rulings in respect 
 to e\'idence or law, but of a disregard of the 
 essentials required by the statute under which 
 the court has been convened to try and to 
 pimish an offender for an imputed violation 
 of the law. (Dynes v. Hoover, 20 How., 65, 
 81.) 
 
 The law is that an officer executmg the 
 process of a court which has acted without 
 jurisdiction over the subject matter become a 
 trespasser, it being better for the peace of 
 society and its interests of every kind that the 
 responsibility of determining whether the i 
 court has or has not jurisdiction should be upon I 
 the officer than that a void writ should be 
 executed. But a United States marshal is not 
 answerable for his mere ministerial execution 
 of a sentence which a naval court-rnartial has 
 passed in a case ^vithin its jurisdiction, which 
 the Secretary of the Na\y has approved, and 
 which the President of the United States, as 
 constitutional commander in chief, has directed 
 the marshal to execute by receiving the pris- 
 
 oner from the naval officer then ha\-ing him in 
 custody to transfer him to the penitentiary in 
 accordance with the sentence which the court 
 had passed upon him. (Djoies v. Hoover, 20 
 How., 65, 80.) 
 
 An acquittal of the commanding officer by a 
 court-martial, when tried for the same acts, by 
 order of the Government, is not admissible 
 e\ddence in a ci^'il suit by an enlisted man 
 against the commanding officer for damages, 
 as the parties are not the same, although it 
 would be a bar to subsequent indictment in 
 courts of common law for the same offense, the 
 parties then being the same. (Wilkes v. 
 Dinsman, 7 How., 89. See note to art. 24, 
 A. G. N.) 
 
 If the enlistment of a person in the Navy 
 was void, then there is no right to discipline 
 him at any period of his serAdce, even though he 
 was undertaking to escape it. If his enlist- 
 ment was void, which means that he was never 
 in the ser\dce, then any act by any person 
 claiming to be in authority over him, whereby 
 any of the natinal rights of the alleged enlisted 
 man were denied him, as, for instance, if he 
 had been imprisoned for an hoiu* or a day or a 
 week, because of some infraction of the rules, 
 will support a ci\i] action for damages in his 
 favor against the particular individuals who 
 were responsible for such punishment. No 
 rule of law can be cited that will ever protect a 
 public officer from the consequences of any act 
 which he may imagine he is performing as a 
 public officer, but which involves an exercise of 
 authority by him as to some person over whom 
 he is absolutely without authority. (Ex parte 
 Rock, 171 Fed". Rep., 240, 242.) 
 
 With the sentences of courts-martial which 
 have been convened regularly, and have 
 proceeded legally, and by which pimishments 
 are directed, not forbidden by law, or which 
 are according to the laws and customs of the 
 sea, ciNT-l courts have nothing to do, nor are 
 they in any way alterable by them. If it were 
 otherwise, the civil courts woidd virtually 
 administer the rules and articles of war, irre- 
 spective of those to whom the duty and obliga- 
 tion has been confided by the laws of the 
 United States, from whose decisions no ap- 
 peal or j urisdiction of any kind has been given 
 to the civil magistrate or civil courts. (Djiies 
 V. Hoover, 20 How., 65, 82.) 
 
 When the sentence of a naval court-martial 
 in a case within its jurisdiction, and in which 
 it has proceeded regularly, is confirmed by the 
 proper authority, it becomes final and must be 
 executed unless the President pardons the 
 offender. It is in the nature of an appeal to 
 the officer ordering the court, who is made by 
 law the arbiter of the legality and propriety of 
 the court's sentence. When confirmed it is 
 altogether beyond the jurisdiction or inquiry 
 of any civil tribunal whatever, unless it shall 
 be in a case in which the court had not juris- 
 diction over the subject matter or charge, or 
 one in which, ha\ang jurisdiction over the 
 subject matter, it has failed to observe the 
 rules perscribed by the statute for its exercise. 
 (Dynes v. Hoover, 20 How., 65, 81.) 
 
 Congress has power under the Constitution 
 to provide for the trial and punishment of 
 miUtarv and naval offenses in the manner 
 
 1049 
 
Sec. 1624, Art. 63. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 then and now practised by civilized nations; 
 and the power to do so is p:iven without any 
 connection between it and the third article of 
 the Constitution defining the judicial power of 
 the United States. The two powers are en- 
 tirely independent of each other. (Dynes v. 
 Hoover, 20 How., 65, 79.) 
 
 Whate\er was done by the court-martial 
 that it could do under any circumstances, we 
 must presume was properly done. If error 
 was committed in the rightful exercise of 
 authority, the civil courts can not correct it. 
 (Ex parte Reed, 100 U. S., 13, 23.) 
 
 The court-martial had jurisdiction over the 
 person and the case. It is the organism pro- 
 vided by law and clothed wdth the duty of 
 administering justice in this class of cases. 
 Having had such jurisdiction, its proceedings 
 can not be collaterally impeached for any mere 
 error or irregularity, if there were such com- 
 mitted within the sphere of its authority. Its 
 judgment when approved as required rest on 
 the same basis and are surrounded by the same 
 considerations which give conclusiveness to 
 the judgments of other legal tribunals, includ- 
 ing as well the lowest as the highest, iinder 
 like circumstances. The exercise of discre- 
 tion within authorized limits can not be as- 
 signed for error and made the subject of review 
 by an appellate com-t. (Ex parte Reed, 100 
 U. S., 13,23.) 
 
 Whether or not the Supreme Court has juris- 
 diction to issue a writ of habeas corpus in the 
 case of an enUsted man of the Army serving 
 sentence of general court-martial, not decided; 
 but held that, if a writ may issue, there can be 
 no discharge under it if the court-martial had 
 jurisdiction to try the offender for the offense 
 with which he was charged, and the sentence 
 was one which the court could, iinder the law, 
 pronounce. (Ex parte Mason, 105 U. S., 696, 
 697.) 
 
 Where a court-martial has cognizance of the 
 charges made, and has jurisdiction _ of the 
 person of the accused, its sentence is valid 
 when questioned collaterally, although irregu- 
 larities or errors are alleged to have occurred 
 in its proceedings in that the prosecutor was a 
 member of the court and a witness on the 
 trial. No opinion expressed as to the pro- 
 priety of such proceedings. (Keyes v U. S., 
 109 U. S., 336.) 
 
 Courts-martial form no part of the judicial 
 system of the United States, and their pro- 
 ceedings within the Limits of their jurisdiction 
 can not be controlled or revised by the civil 
 courts. (Kurtz v. Moffitt, 115 U. S., 487, 500.) 
 
 The Supreme Coiut has repeatedly recog- 
 nized the general rule that the acts of a court- 
 martial within the scope of its jurisdiction ajid 
 duty can not be controlled or reviewed in the 
 civil courts by writ of prohibition or otherwise . 
 (Smith V. Whitney, 116 U. S., 167, 177.) 
 
 Whether the supreme court of the District 
 of ('olumbia has power to issue a writ of prohi- 
 bition to a court-martial, quaere. (Smith v. 
 Whitney, 116 U. S., 167.) 
 
 A writ of prohibition does not lie to the Secre- 
 tary of the Navy convening a naval court- 
 martial. Being an executive officer and not a 
 member of the court-martial sought to be pro- 
 hibited, it is quite clear that his acts can not 
 
 be the subject of a writ of prohibition. (Smith 
 V. Whitney, 116 U. S., 167.) 
 
 A writ of prohibition does not lie to a court- 
 martial to correct mistakes in the decision of 
 questions of law or of fact within its juristlic- 
 tion. (Smith v Wliitney, 116 U. S., 167.) 
 
 A court-martial is regarded as one of those 
 inferior courts of limited jurisdiction whose 
 judgment may be questioned collaterally. 
 (Runkle i; U. S., 122 U. S., 543, 556, citing Wi.se 
 V. Withers, 3 Cranch, 331, and ex parte Watkins, 
 3 Pet., 193, 207.) 
 
 Civil comts may inquire, under a writ of 
 habeas corpus, into the jurisdiction of the 
 court-martial over the party condemned, but 
 can not inquire into or correct errors in its 
 proceedings. (In re Grimley, 137 U. S., 147, 
 150.) 
 
 The single inquiry, the test, is jurisdiction. 
 That being established, the habeas corpus 
 must be denied and the petitioner remanded; 
 that wanting, it must be sustained and the 
 petitioner discharged. (In re Grimley, 137 
 U. S., 147, 150.) 
 
 The decision and sentence of a court-martial 
 having jurisdiction of the person accused and 
 of the offense charged, and acting within the 
 scope of its lawful powers, can not be reviewed 
 or set aside by writ of habeas corpus. (John- 
 son t). Sayi'e, 158 U. S., 109.) 
 
 When a court-martial has jurisdiction of the 
 person accused and the offense charged, and acts 
 within the scope of its lawful powers, its pro- 
 ceedings and sentence can not be set aside by 
 the civil courts. If, as has been strenuously 
 urged, the officer was harshly dealt with in 
 this case, and a sentence of luidue severity was 
 finally imposed, the remedy must be found 
 elsewhere than in the courts of law. (Swaim 
 i). U.S., 165 U.S., 553, 566.) 
 
 In this case it was urged that the charge was 
 not established by the facts, and that the sen- 
 tence should be held void by a civil court in an 
 action by the accused for the pay of his office. 
 If this position were well taken it would throw 
 upon the civil courts the duty of considering all 
 the evidence adduced before courts-martial and 
 of determining whether the accused was guilty 
 of conduct to the prej udice of good order and mil- 
 itary discipline m violation of the articles of 
 war. But this is the very matter that falls with- 
 in the province of courts-martial and in respect 
 to which their conclusions can not be controlled 
 or reviewed by the civil courts. Of questions 
 not depending upon the construction of statutes, 
 but upon unwritten military law or usage with- 
 in the jurisdiction of courts-martial, military 
 or naval officers from their training and experi- 
 ence in the service are more competent judges 
 than the courts of common law. (Swaim d. U. S . , 
 165 U. S., 553, 561, citing Smith v. Whitney, 116 
 U. S., 178, and U. S. v. Fletcher, 148 U. S., 84.) 
 Courts-martial are lawful tribunals, with au- 
 thority to finally determine any case over which 
 they have jurisdiction, and their proceedings, 
 when confirmed as provided, are not open to 
 re\iew by the civil tribunals, except for the pur- 
 pose of ascertaining whether the military court 
 had jurisdiction of the person and subject mat- 
 ter and whether, though having such jurisdic- 
 tion, it had exceeded its powers in the sentence 
 pronounced. (Carter v. Roberts, 177 U. S., 496.") 
 
 1050 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 54. 
 
 Where jurisdiction over the person is con- 
 ceded, any inquiry into the innocence or guilt 
 of the accused, on the ground that the evidence 
 affirmatively showed that no crime whatever had 
 been committed, is not permissible. (Carter v. 
 McClaughry, 183 U. S., 3G5, 381.) 
 
 The question whether a person on trial be- 
 fore a ci\-il court upon a criminal charge is there- 
 by twice put in jeopardy for the same offense 
 has been held to be a question for determination 
 by the court, whose decision can not be reviewed 
 on habeas corpus. It is difficult to see why 
 the sentences of courts-martial, courts author- 
 ized by law in the enforcement of a system of 
 government for a separate community recog- 
 nized by the Constitution, are not within the 
 rule. Its application would seem to be essential 
 to the maintenance of that discipline which ren- 
 ders the Army efficient in war and morally pro- 
 gressive in peace, and which is secured by the 
 military code and the decisions of military 
 courts. (Carter v. McClaughry, 183 U. S., 365, 
 387-390.) 
 
 "We must not be understood by anything we 
 have said as intending in the slightest degree 
 to impair the salutary rule that the sentences 
 of courts-martial, when affirmed by the military 
 tribunal of last resort, can not be revised by the 
 civil courts save only when void because of an 
 absolute want of power, and not rnerely void- 
 able because of the defective exercise of power 
 
 possessed. " (Carter v. McClaughry, 183 U. S., 
 365, 401.) 
 
 The proceedings of the comt-martial were 
 conducted with a substantial, if not a literal, 
 conformity to the law, and we must presume, 
 at least, that there was sufficient evidence to 
 support the sentence. (Bishop i^.U.S., 197 U.S., 
 334,342.) 
 
 Civil courts are not courts of error to review 
 sentences of legally organized courts-martial 
 ha\ing jurisdiction of the person of the accused 
 and of the offense. (Mullan v. U. S., 212 U. S., 
 516.) 
 
 WTiat is due process of law depends upon the 
 cii-cumstances. To those in the military or na- 
 val service of the United States, military law 
 is due process; and the decision of a military 
 tribunal acting within the scope of its lawful 
 powers can not be re\'iewed or set aside by the 
 courts. (Reaves _r. Ainsworth, 219 U. S.,_296, 
 relating to examining boards for promotion.) 
 
 The judgment of a court-martial is open to 
 collateral attack for want of jmisdiction, and to 
 sustain such a judgment it must appear that 
 the facts essential to the jurisdiction existed 
 when the jurisdiction was exercised. (Givens 
 V. Zerbst, 255 U. S., 11, affirming ex parte Giv- 
 ins, 262 Fed. Rep., 702.) 
 
 For other cases, see note to Constitution, 
 Article I, section 8, clause 14; and note to sec- 
 tion 753, Revised Statutes. 
 
 Art. 54. [Remission and mitigation of sentence.] Every officer who is 
 authorized to convene a general court-martial shall have power, on revision of 
 its proceedings, to remit or mitigate, but not to commute, the sentence of any 
 such court which he is authorized to approve and confirm. — (17 July, 1862, 
 c. 204, s. 1, art. 20, v. 12, p. 605.) 
 
 "The Secretary of the Navy may set aside the 
 
 proceedings or remit or mitigate, in whole 
 
 or in part, the sentence imposed by any 
 
 naval com-t-martial convened by his order 
 
 or by that of any officer of the Navy or 
 
 Marine Corps. ' ' (Act Feb. 16, 1909, sec. 9, 
 
 35 Stat., 621.) 
 
 OflScers authorized to convene general 
 
 covirts-inartial. — See article 38, A. G. N., and 
 
 note thereto; see also note to article 53, A. G. N., 
 
 under "Officer ordering the court; President 
 
 and Secretary of the Na\y." 
 
 Power of Secretary of the Navy. — See 
 note to article 53, A. G. N., under "Power of 
 Secretary of the Navy over sentences of courts- 
 martial " ; and see note to article 32, A. G. N. 
 
 ImpUed remission of sentence. — ^The hon- 
 orable discharge of an officer after he has been 
 sentenced by court-martial to forfeit a month's 
 pay and the sentence has been approved does 
 not remit the sentence or entitle him to recover 
 the pay forfeited, whether or not the sentence 
 had been promulgated prior to his discharge. 
 (Lyon V. U. S., l8 Ct. Cls., 30.) 
 
 It would seem that a sentence of suspension 
 fi'om rank and pay for a definite period, or loss 
 of numbers, would be remitted by the perma- 
 nent promotion of the accused to a higher grade 
 while still undergoing such sentence, as the 
 sentence operates only upon his rank and pay 
 in the gi-ade held by him when it was ad- 
 judged. But the temporary' promotion of an 
 
 officer to a higher grade while under sentence 
 would not have such effect. (31 Op. Atty. 
 Gen., 419, 424-426, explaining and modifying 
 4 Op. Atty. Gen., 8.) 
 
 Where an officer lost numbers pursuant to the 
 sentence of a court-martial, and subsequently 
 was advanced by the President, with the aa- 
 \ice and consent of the Senate, to the next 
 higher grade and to his original relative position 
 on the list, because of "eminent and conspic- 
 uous conduct in battle," held that this restora- 
 tion to his former relative position had the effect 
 of putting an end to the punishment, and a 
 pardon subsequently issued by the President 
 did not operate to advance the officer to a higher 
 relative position than that which he had occu- 
 pied prior to the sentence of the court. (24 Op. 
 Atty. Gen., 606.) 
 
 See cases noted under Constitution, Article 
 II, section 2, clause 1, imder "III. Power to 
 pardon offenses against the United States," 
 subheading, ' ' Constructive pardon . ' ' 
 
 Reconsideration of action mitigating 
 sentence. — WTiere the President on March 3, 
 1869, roA-iewed the proceedings of a court 
 martial on appeal by the accused, and there- 
 upon issued an order to the Secretary of War as 
 follows: "Let the disabilities be removed 
 and an honorable discharge granted " ; and on 
 March 13, 1869, the foregoing order was re- 
 scinded by the President; held, that the said 
 order being executory and in ita nature revoca- 
 
 54641°— 22- 
 
 -67 
 
 1051 
 
Sec. 1624, Art. 54. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 ble, and having remained unexecuted at the 
 time of its rescission, was completely annulled 
 thereby. (17 Op. Atty. Gen., 436.) 
 
 Where a sentence as mitigated waa put in 
 execution by a former administration, by which 
 all questions in the premises must be presumed 
 to have then been fully considered, ad\'ised 
 that tliis action be now treated as a final deter- 
 mination of the matter as regards the status of 
 the accused officer. (15 Op. Atty. Gen., 463.) 
 
 Where the mitigation of a sentence was ob- 
 tained by fraud of the accused, who was dis- 
 charged from the ser^dce pursuant to the miti- 
 gated sentence, such discharge may be re- 
 voked and the accused required to resume his 
 former status as a court-martial prisoner. (28 
 Op. Atty. Gen., 170.) 
 
 Sentence which officer not authorized 
 to coniinn. — Tliis article obviously extends 
 only to such sentences as the convening officer is 
 authorized to approve and confirm and has no 
 application where the punishment of dismissal 
 is imposed. (Bishop i). U. S., 197 U. S., 334, 
 341.) 
 
 A lieutenant of marines on service with the 
 Army in Mexico was sentenced to be cashiered 
 by a court-martial held there; the general in 
 chief, after approving the sentence, directed 
 that it be commuted to 12 months' suspension 
 from rank, command, and emoluments; the 
 proceedings of the court-martial and the order 
 of the general in chief thereunder had not been 
 submitted to or acted upon by the President of 
 the United States. The said officer continued 
 in the ser\'ice, in effect under suspension, until 
 he, with other officers, was displaced by the 
 President, not upon the above-mentioned sen- 
 tence of the court, but in virtue of the act of 
 Congress restoring the peace establishment of 
 the Marine Corps. Held, that under the express 
 pro\dsions of the articles of war the commanding 
 general in the field did not possess power to 
 commute the sentence of cashiering, ijut only 
 the power to execute the sentence or to sus- 
 pend it pending determination by the Presi- 
 dent, to whom the record was in case of such 
 suspension I'equired to be immediately trans- 
 mitted; and that, upon the facts stated, neither 
 the sentence of cashiering nor the mitigated 
 sentence ever took effect in this case. (6 Op. 
 Atty. Gen., 123.) 
 
 Remission of distinct part of sentence. — 
 WTiere forfeiture or loss of pay is made a part 
 of the sentence of a court-martial, in addition 
 to confinement or suspension from duty, the 
 former may be remitted by the proper authority, 
 in whole or in part, ^vithout also remitting the 
 latter. (15 Op. Atty. Gen., 175.) 
 
 Form of action mitigating sentence. — 
 An act of the President remitting part of a court- 
 martial sentence may be authenticated in the 
 same way in which his act confirming such 
 sentence can be authenticated. \Vhere partial 
 remission is made at the time of confirmation, 
 the two acts are in practice signified and at- 
 tested together, in the same way. (15 Op. 
 Atty. Gen., 290. See note to art. 53, A. G. N., 
 as to form of President's action confirming 
 sentence.) 
 
 Remission of continuing punishment; 
 suspension, etc. — ^Vhere an officer is sentenced 
 to loss of numbers in his grade, the punishment 
 
 imposed is a continuing one; since it is only by 
 the continual operation of the sentence itself 
 that the officer is thenceforth excluded from 
 the place in his grade to which, under the law 
 of the service, he would otherwise be entitled 
 by date of his commission, and made to occupy 
 another place therein. So long as the officer is 
 thus excluded by operation of the sentence, 
 in other words, whilst he is still undergoing the 
 pimishment thereby imposed , the sentence may 
 be remitted and remission of it would necessarily 
 carry with it the restoration of the officer to his 
 preexisting right to occupy the place in hia 
 grade corresponding -with, the date of his com- 
 mission, he losing such opportunities for pro- 
 motion as may in the meantime have occurred. 
 (17 Op. Atty. Gen. 656.) 
 
 An officer of the Navy was sentenced "to be 
 suspended for two years from rank and duty, 
 on furlough pay, and to retain his present 
 number on the list of lieutenant commanders 
 during that time"; the sentence was approved 
 by the Secretary of the Navy, May 3, 1889. 
 Between May 3 and December 14, 1889, the 
 officer lost two numbers in his grade by promo- 
 tion of two officers to the grade of commander 
 and the consequent advancement above hinri 
 in the grade of heutenant commander of two 
 officers who had beenjimior to him in that grade. 
 On December 14, 1889, the Secretary of the 
 Navy issued the following order to the officer 
 imder suspension: "The unexecuted portion 
 of the sentence of the general coml-martial 
 before which you were tried at the navy yard, 
 Washington, D. C, April 15, 1889, is hereby 
 remitted." Held, that this remission did not 
 have the effect of advancing the officer in ques- 
 tion ahead of the two officers who had been 
 passed over him in the grade of lieutenant 
 commander. While an absolute pardon might 
 reinstate the officer sentenced, an order of the 
 Secretary of the Navy remitting the unexecuted 
 portion of the sentence can not produce that 
 result. That portion of the sentence which 
 operated to place the two officers in question 
 above the accused had been executed before 
 the order for remission and was therefore not 
 affected by the terms of that order. (20 Op. 
 Atty. Gen., 243.) 
 
 Degradation from or diminution of relative 
 rank and position is a continuing punishment 
 and thus subject to re\ision by the President. 
 (24 Op. Atty. Gen., 606.) 
 
 A lieutenant commander in the Na\'y was 
 sentenced by court-martial to suspension for 
 one year and to retain his then present number 
 on the list of lieutenant commanders for that 
 time. The sentence having been executed, 
 he applied several years later to be restored to 
 the number on said hst which he thereby lost: 
 Held, that the restoration could not be effected 
 by the President otherwise than by pardon. 
 The punishment imposed (lo*ss of numbers) 
 being a continuing one, is still subject to the 
 pardoning power which, when exercised, would 
 have the effect of restoring the officer to his 
 former rank according to the date of his com- 
 mission; the officer losing such opportunities 
 for promotion as may in the meantime have 
 occurred. (17 Op. Atty. Gen., 31.) 
 
 1052 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 54. 
 
 A pardon by the President will restore an 
 officer whose rank has been reduced by sen- 
 tence of a court-martial to his former relative 
 rank, according to the date of his commission, 
 the officer losing such opportunities for promo- 
 tion as may in the meantime have occurred. 
 Loss of numbers is a continuing penalty, which 
 operates from day to day so long as the officer 
 affected is excluded from enjojing his previous 
 status. (12 Op. Atty. Gen., 547.) 
 
 Where an officer of the Army was sentenced 
 by com"t-martial "to be cashiered and to be 
 forever disqualified from holding any office of 
 trust or profit under the Government of the 
 United States," which sentence was duly 
 approved and the officer dismissed, held, that 
 the dismissal is an accomplished fact and so far 
 the sentence is completely executed; but the 
 disability is a continuing punishment, and in 
 regard to that the sentance is being executed, 
 and the latter portion of the sentence may be 
 remitted by the pardoning power, but the 
 former can not in any way be affected thereby. 
 (17 Op. Atty. Gen., 297.) ^ 
 
 The promotion of an officer coinpletely exe- 
 cutes a sentence of loss of numbers in his grade, 
 and a pardon issued thereafter can not restore 
 him to his original position. (File 26261-246 :1, 
 Mar. 18, 1914; 26262-1794:1, Dec. 21, 1916; but 
 see contra file 1208, Mar. 31, 1905. And see note 
 above under " Implied remission of sentence.") 
 
 For other cases see note to Constitution, Arti- 
 cle II, section 2, clause 1, under "III. Power 
 to pardon offenses against the United States"; 
 and note to section 1441, Revised Statutes. 
 
 Action to be taken on revision of court- 
 martial proceedings.— Officers of the naval 
 service convening general courts-martial are not 
 authorized to remit or mitigate the sentences 
 imposed by such courts after having once acted 
 thereupon. (Nav. Dig., 1916, pp. 115, 562, 
 citing C. M. O. 17, 1910, pp. 5-6; C. M. O. 1, 
 1912, pp. 3-4; file 26262-1246:1, Dec. 29, 1911.) 
 
 An officer of the Army authorized to order a 
 general court-martial has no power to pardon or 
 mitigate the punishment adjudged by it after 
 confirmation by him of the sentence. (19 Op. 
 Atty. Gen., 106, reversing 17 Op. Atty. Gen., 
 656, upon this point.) 
 
 The Constitution forbids anyone but the 
 President to pardon those who commit such 
 offenses. Accordingly, the articles of war 
 should be construed as referring to the punish- 
 ment adjudged by the court and as empower- 
 ing the convening authority to pardon or miti- 
 gate that judgment, and not as empowering 
 him to pardon or mitigate the punishment of an 
 offense finally adjudged and confirmed by him- 
 self. Before he shall confirm the action of the 
 court the article permits him to mitigate the 
 punishment or remit it; but after the final 
 judgment of confirmation, which is the judg- 
 ment of the law, shall have conclusively estab- 
 lished the offense and the guilt of the offender, 
 the law gives him power neither to mitigate nor 
 remit. It is only the punishment, and not the 
 offense, that he may mitigate or remit. (19 Op. 
 Atty. Gen., 106.) 
 
 See note to Constitution, Article I, section 2, 
 clause 1, under ''III. Power to pardon offenses 
 against the United States," subheading " Power 
 of other officers." 
 
 Discretionary action of reviewing au- 
 thority. — This article shows that Congress in- 
 tended that the officer who is authorized to 
 approve and confirm the sentence of a court- 
 martial, in revising its proceedings, should act 
 judicially; that is, that he should exercise the 
 discretion confided to him within the limits 
 of the law. (11 Op. Atty. Gen., 19, 20.) 
 
 Mitigation of dismissal. — As the sentence 
 of a naval court-martial dismissing an officer 
 from the service can not be executed except 
 with the approbation of the President, and as he 
 possesses the power to revise, to pardon, and to 
 mitigate a sentence, he may substitute a milder 
 punishment for that decreed by the court. (4 
 Op. Atty .Gen., 432.) 
 
 In mitigating a sentence of dismissal the 
 President may commute it by substituting a 
 suspension for a term of years without pay for an 
 absolute dismissal from the service, as suspen- 
 sion is but an inferior degi'ee of the same pun- 
 ishment. (4 Op. Atty. Gen., 432.) 
 
 A dismissal is a perpetual suspension without 
 pay, and to limit suspension without pay is to 
 substitute an inferior degree of the same pun- 
 ishment; the minor is contained in the major. 
 (4 Op. Atty. Gen., 432.) 
 
 The President has ample power to mitigate 
 the sentences of naval courts-martial by com- 
 muting sentences of dismissal from the ser\'ice 
 to suspension without pay or emoliunents for a 
 limited time. Hence an assistant surgeon in 
 the Navy, who was sentenced to be dismissed by 
 a naval court-martial, but whose sentence was 
 commuted to suspension for 12 months ■without 
 pay, is not entitled to pay during the period of 
 such suspension. (5 Op. Atty. Gen., 43.) 
 
 As dismissal deprives the officer of his pay 
 forever, the suspension of his office and his pay 
 for one year only is an inferior and milder de- 
 gree of the punishment decreed by the court. 
 Opinions of former Attorneys General are not at 
 variance with this advice. (5 Op. Atty. Gen., 
 43.) 
 
 Reduction by the President of the United 
 States of the dismissal of an officer of the Na\-y 
 from the service to loss of numbers and sus- 
 pension from rank and duty on one-half sea pay 
 for five years is a mitigation of the sentence 
 within the meaning of article 54, A.G.N. (Mul- 
 lan^j. U. S., 212U. S., 516.) 
 
 Commutation of sentence. — Quaere, 
 whether the power of mitigating a punishment 
 includes the power of changing its species; 
 whether it means anything more than lessening 
 the quantity, preserving, nevertheless, the 
 species of the punishment. (1 Op. Atty. Gen., 
 327.) 
 
 Had the phraseology of the law been, "to 
 remit in part, or in whole, the punishment 
 decreed by the sentence of a court-martial," 
 it would have restricted the President to the 
 simple matter of mitigation, that of lessening 
 the quantity; but a power of mitigation, in gen- 
 eral terms, leaves the manner of peiiorming 
 this act of mercy to himself; and if it can be 
 performed in no other way than by changing 
 its species, the President has the power of adopt- 
 ing this form of mitigation. 11 Op. Attv. Gen., 
 327.) 
 
 The authority of the President to mitigate 
 the sentences of naval courts-martial, in cases 
 
 1053 
 
Sec. 1624, Art. 54. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 where ho dooms tho punishment unnecessarily 
 severe, does not extend to the substitution of 
 another punishment for that decreed by the 
 court; he can not suspend the pay of an officer 
 under sentence of a court-martial whose pay 
 was not suspended by the coiirt. (4 Op. Atty. 
 Gen., 444.) 
 
 Even thoup;h the executive may dismiss from 
 the service without trial, or may suspend from 
 duty by an-est, he has no power, while an officer 
 retains his commission and is not sentenced by 
 a court-martial to that effect, to take from him 
 the pay which the law gives him. (4 Op. Atty. 
 Gen., 444.) 
 
 An officer of the Navy was sentenced by 
 court-martial to be suspended from all rank and 
 command in the Navy for and during the period 
 of five years. The sentence did not involve 
 loss of pay, which the court was authorized to 
 adjudge by the Articles for the Government of 
 the Navy. Nor did it require confirmation by 
 the President. The President ordered that the 
 sentence "be commuted to a suspension of six 
 months from this date, without pay. ' ' It does 
 not appear that this commutation of the sen- 
 tence was made at the officer 's request, or that 
 the condition was accepted by the officer, who 
 afterwards claimed pay for the period of this 
 suspension. A pardon is a deed, to the vaUdity 
 of which delivery is essential, and delivery is 
 not complete without acceptance. It is clear, 
 then, that the President in this case did not 
 exercise the power of pardon. Nor was his 
 action a mitigation of the sentence under the 
 Articles for the Government of the Navy, and 
 the officer is entitled to pay for the period of his 
 suspension. (4 Op. Atty. Gen., 444.) 
 
 It may be conceded that there is a technical 
 difference between the commutation of a sen- 
 tence and the mitigation thereof. The first is a 
 change of a punishment to which a person has 
 been condemned into one less severe, substi- 
 tuting a less for a greater punishment by author- 
 ity of law. To mitigate a sentence is to reduce 
 or lessen the amount of the penalty or punish- 
 ment. When the President otherwise con- 
 firmed the sentence from absolute discharge 
 from the Navy to reduction in rank and duty 
 for the period of five years on one-half sea pay, 
 he did what in terms he undertook to do, and 
 by the lessening of the severe penalty of dis- 
 missal from the Navy, reduced and diminished, 
 and therefore mitigated, the sentence which he 
 was authorized to approve and confirm against 
 the appellant, or mitigate in his favor. (Mullan 
 -y. U.S., 212 U.S., 516.) 
 
 See note above, under "Mitigation of dis- 
 missal"; and see below, under "Mitigation of 
 death sentence." 
 
 Power of President as reviewing au- 
 thority. — ^The President may mitigate a 
 sentence of a naval court-martial, under the 
 Articles for the Government of the Navy, with- 
 out invoking his power of pardon. (1 Op. Atty, 
 Gen., 327.) 
 
 The power of the President over a sentence is a 
 power over the whole of it ; and he may approve, 
 reject, or mitigate the same at pleasure. The 
 language of the article of war requires that, 
 in cases extending to the dismissal of a com- 
 missioned officer, in time of peace, the whole 
 proceedings be laid before the President "for 
 
 his confirmation or disapproval, and orders on 
 the case." The terms indicate an unlimited 
 discretion ; and when it is considered that he is 
 by the Constitution the depositary of the par- 
 doning power, it can not be doubted that he has 
 authority to mitigate as well as to confirm or 
 reject the sentence of a court-martial in the ex- 
 ercise of the 8uper\isory power committed to 
 him by the articles of war. (2 Op. Atty. Gen., 
 286.) 
 
 The power of the President to pardon, con- 
 ferred by the Constitution, is plenary; and so 
 far as he is concerned, its repetition in the Arti- 
 cles for the Government of the Navy was super- 
 ogatory. (4 Op. Atty. Gen., 432.) 
 
 WTiere an officer was sentenced to dismissal 
 from the Army, and to fine and imprisonment, 
 the President might have exercised his con- 
 stitutional power to pardon, or as the reviewing 
 authority he might have pardoned or mitigated 
 the punishment adjudged, except that of dis- 
 missal, although he had no power to add to the 
 punishment. (Carter v. McClaughry, 183 U. S., 
 365, 387.) 
 
 Quaere, whether article 54, A. G. N., applies 
 to the action of the president ; if it be conceded 
 that it is applicable to the President, his action 
 in this case did in fact mitigate the previous 
 sentence of the court-martial as approved by 
 the Secretaiy of the Navy. (Mullan v. U. S., 
 212 U. S., 516.) 
 
 Mitigation of death sentence. — A sen- 
 tence of death can not be mitigated in any other 
 way than by changing the punishment. (1 Op. 
 Atty. Gen., 327.) 
 
 The President may so far mitigate a sentence 
 of death pronounced by a naval court-martial 
 as to substitute a milder punishment in its 
 stead. This he may do under the Articles for 
 the Government of the Navy, and without in- 
 voking his power of pardon; and since the sen- 
 tence of death can be mitigated only by chang- 
 ing it, he has the power to substitute the milder 
 punishment which he proposes to do. fl Op. 
 Atty. Gen., 327.) 
 
 The power of pardoning the offense does not 
 include the power of changing the punishment; 
 but the power to mitigate the punishment de- 
 creed by a court-martial can not be fairly under- 
 stood in any other sense than as meamng the 
 power to substitute a milder punishment in the 
 place of that decreed by the court-martial, in 
 which sense it would justify the mitigation of a 
 sentence of death to a sentence of "service and 
 restraint for the space of one year; after which, 
 to cause him to be drummed from the Marine 
 Corps as a disgrace to it." (1 Op. Atty. Gen., 
 327.) 
 
 The exercise of the power of mitigation 
 necessarily implies that there is substitution for 
 a higher of an inferior punishment. A sentence 
 of death for murder can be mitigated by substi- 
 tuting any punishment which the law would 
 authorize the court to inffict for manslaughter. 
 This is an inferior degree of the offense. The 
 punishment substituted is not, in the nature of 
 things, that which the court has decreed; it is 
 one which the President substitutes. (4 Op. 
 Atty. Gen., 432, 434.1 
 
 When an officer is brought to trial and is seii- 
 tenced 1o be punished, the executive may miti- 
 gate the severity of that punishment; but the 
 
 1054 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 57. 
 
 mitigation must inflict a part of the punish- must be inflicted or no part of it can be. Such 
 
 ment awarded by the judgment of the court, is the case with a sentence of death. (4 Op. 
 
 with the exception of those cases in which there Atty. Gen., 444.) 
 is no degree, as where the whole punishment 
 
 Art. 55. [Courts of inquiry, by whom ordered.] Courts of inquiry may be 
 ordered by the President, the Secretary of the Navy, or the commander of a 
 fleet or squadron.— (17 July, 1862, c. 204, s. 1, art. 23, v. 12, p. 605.) 
 
 law to convene general courts-martial." 
 
 (Act Aug. 29, 1916, 39 Stat., 586.) 
 See article 38, A. G. N., and note thereto, as to 
 
 officers empowered to convene general 
 
 courts-martial. 
 See section 183, Revised Statutes, as amended, 
 
 and note thereto, respecting boards of 
 
 investigation. 
 
 "Boards of inquiry" are to be ordered by the 
 Secretary of the Navy in certain cases, be- 
 fore the dismissal of midshipmen from the 
 Naval Academy without trial by court- 
 martial. (Act Apr. 9, 1906, 34 Stat., 104. 
 See note to sec. 1519, R. S.) 
 
 "Courts of inquiry may be convened by any 
 officer of the naval ser^ice authorized by 
 
 Art. 56. [Courts of inquiry, constitution of.] A court of mquiry shall con- 
 sist of not more than three commissioned officers as members, and of a judge- 
 advocate, or person officiating as such. — (17 July, 1862, c. 204, s, 1, art. 23^ 
 V. 12, p. 605.) 
 
 See article 39, A. G. N., and note thereto, as to constitution of general courts-martial. 
 
 Art. 57. [Courts of inquiry, powers of.] Courts of inquiry shall have power 
 to summon witnesses, administer oaths, and punish contempts, in tlie same 
 manner as courts-martial; but they shall only state facts, and sliall not give 
 their opinion, unless expressly required so to do in the order for convenmg. — 
 (17 July, 1862, c. 204, s. 1, art. 23, v. 12, p. 605.) 
 
 Amendment to this article was made by act 
 
 of February 16, 1909, sections 11 and 12 
 
 (35 Stat., 621, 622j, relating to attendance 
 
 of civilian witnesses. See note to article 
 
 42, A. G.N. 
 
 Oaths, when administered by officers of the 
 
 Navy: See section 183, Revised Statutes, 
 
 and laws noted thereunder. 
 
 The use of depositions before naval courts in 
 
 certain cases and under certain restrictions 
 
 was authorized by act of February 16, 1909, 
 
 section 16 (35 Stat., 622). 
 
 Absent witness. — The court, on motion to 
 
 postpone because of absent witnesses, may, as 
 
 is usual in all courts, require the party making 
 
 the motion to state what he expects or desires 
 
 to prove, so that its materiality may be seen, 
 
 and so also that the other party, if he see fit, 
 
 may agree that the absent witness will so 
 
 testify, and thus dispense with his attendance. 
 
 In all such questions the judge advocate acts 
 
 for the Government. (8 Op. Atty. Gen., 335, 
 
 363.) 
 
 False swearing before court of in- 
 quiry. — See note to article 8, A. G. N., under 
 "Scandalous conduct tending to the destruc- 
 tion of good morals." 
 
 Depositions in evidence. — ^See note to 
 article 42, A. G. N. 
 
 Objects of courts of inquiry. — The object 
 of a court of inquiry is not merely to exculpate 
 some officer, the individual subject of the in- 
 quiry, but to ascertain facts for the information 
 of superior authority. The subject of inquiry 
 may be so broad and comprehensive in scope, 
 and. so general in its nature, that its relation to 
 individuals becomes a matter of secondary 
 
 consideration. It may involve matters of 
 public welfare and of the universal good of the 
 service, of which personal interests are but a 
 single and not the largest element. (8 Op. 
 Atty. Gen., 335, 349.) 
 
 Axialog^y to grand jury.— With respect to 
 inquiry into the conduct of an officer, with a 
 view to determining whether to prefer charges 
 or not, there is much resemblance between the 
 relation of a grand jury to a traverse jury, 
 and that of a court of inquiry to a court-martial. 
 (8 Op. Atty. Gen., 335, 347.) 
 
 Not a judicial tribunal.— A naval court of 
 inquiry is not a judicial tribunal ; it is instituted 
 solely for the purpose of investigation, as an 
 assistance to the President, the head of the 
 department, or the commanding officer, in 
 determining whether or not any further pro- 
 ceeding, executive or judicial, ought to be taken 
 in relation to the subject matter of the in- 
 quiry. There is no issue joined between par- 
 ties, "nor parties litigant. (The W. B. Chester's 
 Owners v. U. S., 19 Ct. Cls., 681.) 
 
 Proceedings not a trial.— The proceedings 
 of a board of inquest or a court of inquiry are 
 in no sense a trial of an issue or of an accused 
 person. These boards perform no real judicial 
 function, but are convened only for the purpose 
 of informing the department in a preliminary 
 way as to the facts involved in the inquiry. 
 (25 Op. Atty. Gen., 623; See note to art. 24, 
 A.G.N.) 
 
 Proceedings advisory only. — The action of 
 courts of inquiry, whether as to transactions or 
 persons, is not decision, but advice only, for the 
 information of the executive. (8 Op. Atty. 
 Gen., 335, 336.) 
 
 1055 
 
Sec. 1624, Art. 60. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 Jvu'isdiction of civil courts. — See note to 
 article (>, A. G. N., as to noainterference by 
 civil courts with a naval court of inquiry in- 
 vestigating a charge of homicide. 
 
 Statutes of lirnitation not applicable. — 
 The statute of limitations contained in the 
 articles of war does not apply to courts of in- 
 quiry in the Army, for the oljjects of a court of 
 inquiry are not confined to investigation as 
 preparatory to a court-martial, but extend to 
 the legal procurement of infoiTtiation of any 
 sort material to the military service, or the 
 discipline and government of the Army, and 
 to guide the discretion of him who orders it in 
 regard to a matter under inquiry. (6 Op. 
 Atty. Gen., 239.) 
 
 It may happen that questions shall arise as 
 to an offense alleged to have been committed 
 by an officer more than two years ago, as to 
 which he ought to be exculpated if innocent, 
 or if guilty dismissed by the President, though 
 not liable to be tried bv court-martial. (6 Op. 
 Atty. Gen., 239.) 
 
 Art. 58. [Oaths of members and judge advocate.] The judge-advocate, 
 or person ofRciatiiig as such, shall administer to the members the following 
 oath or affirmation: ''You do swear (or affirm) weU and truly to examine and 
 inquire, according to the evidence, into the matter now before you, without 
 partiality." After which the president shall administer to the judge-advocate, 
 or person officiating as such, the following oath or affirmation: ''You do swear 
 (or affirm) truly to record the proceedings of this court and the evidence to be 
 given in the case in hearing." — (17 July, 1862, c. 204, s. 1, art. 25, v. 12, pp. 
 605, 606.) 
 
 A court of inquiry may be needed for the very 
 purpose of aacertaining whether an alleged 
 offense was or was not committed within two 
 years, and so informing the mind and guiding 
 the discretion of the executive on the very 
 point of the legality of a court-martial. (6 
 Op. Atty. Gen., 239.) 
 
 In the Articles for the Government of the 
 Navy no limitation of time is expressed as to 
 the matters liable to examination by courts of 
 inquiry; nor in those articles is there any as to 
 acts cogniza])le l)y court-martial. How this 
 omission happened, whether accidentally or 
 advisedly, does not appear. In this respect 
 the Articles for the Government of the Navy 
 differ from the articles of war. (8 Op. Atty. 
 Gen., 335j 347, 348.) 
 
 See articles 61 and 62, A. G. N., and notes 
 thereto. 
 
 Proceedings and evidence. — 'See note to 
 article 59, A. G. N. 
 
 See note to article 40, A. G. N., under 
 "Whether oath shoidd be repeated in each 
 
 case. 
 
 Responsibility for true record, 
 to article 52, A. G. N. 
 
 -See note 
 
 See article 40, A. G. N., and note thereto, as to 
 
 oaths of members and judge advocate of 
 
 general courts-martial. 
 Oaths repeated in each case. — The court 
 must be sworn separately and so report in each 
 distinct case. (8 Op. Atty. Gen., 335, 341.) 
 
 Art. 59. [Rights of party inquired of.j The party whose conduct shall be 
 the subject of inquiry, or his attorney, shall have the right to cross-examine all 
 the witnesses.— (17 July, 1862, c. 204, s. 1, art. 23, v. 12, p. 605.) 
 
 Whether court should be open or 
 closed. — Comts of inquiiy are, by the general 
 military law, open or closed as the authority 
 ordering the court may determine; and to have 
 them open is the exception, not the rule. 
 (8 Op. Atty. Gen., 223, 229.) 
 
 Courts of inquiry are inherently closed courts, 
 to which defendants generally, and auditors 
 and spectators occasionally, have access by 
 permission; not of right. (8 Op. Atty. Gen., 
 335, 346. See note to art. 45, A. G. N., as to 
 procedure of general courts-martial.) 
 
 Evidence; documentary. — Official letters 
 on file, contemporaneous -with or a part of the 
 incidents to which thoy relate, are competent 
 evidence in a court of inquiry, both for and 
 against a party, as are; official letters which he 
 may have received at the termination of a par- 
 ticular service, the same being, however, sub- 
 Art. 60. [Proceedings ; how authenticated ; use in other cases.] The proceed- 
 ings of courts of inquiry shall be authenticated by the signature of the president 
 
 ject to explanations. But neither letters of 
 recommendation, nor of condemnation, nor 
 certificates prepared for the occasion, nor even 
 ex parte affidavits, are competent evidence. 
 (8 Op. Atty. Gen., 335, 336.) 
 
 Experts. — By the military as well as by the 
 civil law, courts have authority to commission 
 experts for the examination of all questions of 
 mental or physical disability. (8 Op. Atty. 
 Gen., 335, 336.) 
 
 See note to article 42, A. G. N., iinder "Ex- 
 pert witnesses." 
 
 RiHes of procedure. — ^The constitution and 
 the course of proceeding of courts of inquiry are 
 to be governed by the general statutes and by 
 the common law military as received and prac- 
 ticed in the Army and Navy. (8 Op. Atty. 
 Gen., 335.) 
 
 1056 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 61. 
 
 of the court and of the judge-advocate, and shall, m all cases not capital, nor 
 
 extending to the dismissal of a commissioned or warrant officer, be evidence 
 
 before a court-martial, provided oral testimony cannot be obtained. — (17 July, 
 
 1862, c. 204, s. 1, art. 24, v. 12, p. 605.) 
 
 Admissibility in evidence by consent of 
 accused. — A commissioned officer of the Navy 
 can waive the provisions of article 60, A. G. N., 
 and allow proceedings of a court of inquiry to be 
 e\"idence on a coml-martial, the sentence of 
 which may extend to his dismissal; and where, 
 at the request of such an officer, the Secretary 
 of the Navy convened a comt-martial to try 
 hiTT! on matter which had already been the sub- 
 ject of a court of inquiiy, on condition that the 
 proceedings of such court of inquiry be evi- 
 dence, each party having the pri\T.lege, how- 
 ever, of introducing other e\idence, the ac- 
 cused is not deprived of any substantial right, 
 and the sentence of the court-martial is not 
 invahdated. (Mullan v. U. S., 212 U. S., 516; 
 see C. M. O. 46-1917, pp. 13-19, for general note 
 on subject of admissibility in e\'idence before 
 com'ts-martial of the proceedings of courts of 
 inquir\', boards of investigation, and boards of 
 inquest.) 
 
 Art. 61. [Limitation of trials; general offenses.] No person shall be tried 
 
 by court-martial or otherwise punished for any offense, except as provided in 
 
 the following article, which appears to have been committed more than two 
 
 years before the issuing of the order for such trial or punisliment, unless by 
 
 reason of having absented himself, or of some other manifest impediment he 
 
 shall not have been amenable to justice witliin that period. 
 
 acts cognizable by coiirts-martial. How this 
 omission happened, whether accidentally or 
 advisedly, does not appear. In this respect 
 the Articles for the Government of the Na\'y 
 differ from the Articles of War. (8 Op. Atty. 
 
 Admissibility in civil sviit. — ^Testimony 
 taken before a court of inquiry can not be put in 
 evidence on a claim against the United States 
 for damages and loss sustained by reason of a 
 collision between a vessel of the Nav>' and a 
 private vessel, unless it be for the purpose of 
 showing that witnesses who have testified be- 
 fore the civil court have sworn differently 
 before the court of inquiry. (The W. B. Ches- 
 ter's Owners t'. U. S., 19 Ct. Cls., 681.) 
 
 The claimant is a stranger to the proceedings, 
 though the subject of the investigation was the 
 destruction of his schooner by a naval vessel. 
 Even if allowed to be present and take part in 
 the examination of witnesses, it was by cour- 
 tesy only. The e\'idence was ex parte, taken 
 by the United States for their own private use. 
 (The W. B. Chester's Owners v. U. S., 19 Ct. 
 Cls., 681.) 
 
 This article was added to the Articles for the 
 Government of the Na\y, as article 61 
 thereof, by act of February 25, 1895 (28 
 Stat., 680). 
 
 Historical note. — By article 138 of ' 'Orders, 
 Regulations, and Instructions for the Adminis- 
 tration of Law and Justice in the United 
 States Na\'y," approved by the Secretary of 
 the Na\'y, April 15, 1870, it was provided that 
 "No person in the Navy shall be liable to be 
 tried and punished by a court-martial for any 
 offense which shall appear to have been com- 
 mitted three years before the issuing of the order 
 for such trial, unless the person, by reason of 
 ha\-ing absented himself or some other mani- 
 fest impediment, shall not have been amen- 
 able to justice within that time." 
 
 The "Orders, Regulations, and Instructions 
 for the Administration of Law and Justice in 
 the L'nited States Navj^"' were issued by the 
 Secretary of the Na\y, iinder the authority of 
 the President, in 1870. Section 1547 of the 
 Re\'ised Statutes is a legislative recognition of 
 the regulations of 1870, and "must be under- 
 stood as giAang to these regulations the sanc- 
 tion of the law." (Smith v. Whitnev, 116 U. 
 S., 167, 180.) 
 
 The said "Regulations for the Administra- 
 tion of Law and Justice," regulating the pro- 
 cedure of courts-martial, have the force of law. 
 (Ex parte Reed, 100 U. S., 13, 22; compare 
 note to art. 42, A. G. N., under "Character 
 CAidence.") 
 
 In the 2\jrticle8 for the Government of the 
 Nav>- no limitation of time is expressed as to 
 
 Gen., 335, 347, 348, Jan. 31, 1857. 
 
 Article 61, A. G. N., was first enacted by act 
 of February 25, 1895, before which time there 
 was no statute of limitations for \iolation3 of 
 the Articles for the Government of the NaA^y. 
 (31 Op. Atty. Gen., 521, 528.) 
 
 Desertion in time of war. — ^Article 61 
 appUes to desertion fi'om the Navy in time of 
 war. In such case the two-year period of 
 limitation commences to run from the date 
 that the offender first absents himself without 
 leave and with the intention of permanently 
 abandoning the service. But he is amenable 
 to trial by coiut-martial after the end of the 
 term for which he enUsted, provided such 
 trial is not barred by the statute of limitations. 
 (Op. Atty. Gen., Feb. 27, 1922, file 26251- 
 26615:8; see note below, under art. 62, A. G. N.) 
 
 If the offender has not been discharged or 
 his status otherwise tenninated, he may be 
 tried after expiration of his enlistment, even 
 though he had not in the meantime been 
 arrested or other steps taken to enforce juris- 
 diction. (Op. Attv. Gen., Feb. 27, 1922, file 
 26251-26615:8.) 
 
 See note to section 1418, Revised Statutes, 
 under "Detention of enlisted men after expira- 
 tion of enUstment." 
 
 View that statute of limitations can not 
 be waived. — ^The accused can not be tried by 
 
 1057 
 
Sec. 1624, Art. 61. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 court-martial for an offense of more than two 
 years' standing prcAnous to the order summon- 
 ing the court, even on his own application, un- 
 less the prosecution can show that, by reason 
 of absence or some other manifest impediment, 
 the accused was not amenable to justice \vithin 
 the time limited by the Articles of War. The 
 limitation was not intended solely for the 
 benefit of persons accused, but its policy had a 
 wider scope, viz, the prompt prosecution of 
 offenses. (1 Op. Attv. Gen., 383; affirmed, 
 14 Op. Atty. Gen., 265'.) 
 
 This limitation can not be waived by the ac- 
 cused, nor can he, even with his consent, be 
 tried by a general court-martial after the time 
 prescribed by the Articles of War. (6 Op. 
 Atty. Gen., 239.) 
 
 The statute of limitations contained in the 
 Articles of War is a limitation upon the juris- 
 diction of courts-martial, and presents an abso- 
 lute bar to the trial (under certain exceptions 
 therein stated), which can not be waived even 
 by the accused. (13 Op. Atty. Gen., 462, 463; 
 citing 1 Op. Atty. Gen., 383 and 6 Op. Atty. 
 Gen., 240.) 
 
 When it appears by the record that the order 
 for trial was issued more than two years before 
 the commission of the offense, a plea of guilty 
 is not to be taken as an admission by the ac- 
 cused of the existence of an exception withdraw- 
 ing his case from the limitation. It is for the 
 prosecution to show, as a matter of fact, in 
 some way other than by the form of the plead- 
 ings, that by reason of having absented him- 
 self, or of some other manifest impediment, 
 the accused was not amenable to justice within 
 the two years. (16 Op. Atty. Gen., 170.) 
 
 As a matter of pleading, the plea of guilty 
 admits the existence of the exceptions which 
 take the case out of the general statute of lim- 
 itations. However, it having been held in 
 previous opinions of the Attorneys General that 
 the limitation can not be waived by the ac- 
 cused, and no opinion being found which con- 
 tradicts these, the rule thus established should 
 be followed. (16 Op. Atty. Gen., 170.) 
 
 View that statute of limitations is mat- 
 ter of defense. — The limitation prescribed 
 for the trial and punishment of the offense of 
 desertion, by the Articles of War, is matter of 
 defense, and the tribunal having jurisdiction to 
 try the charge of desertion is the tribunal hav- 
 ing jurisdiction to determine whether the bar of 
 the statute has attached or not. (In re White, 
 17 Fed. Rep., 723.) 
 
 A desertion having taken place, whether the 
 statute of limitations has run against it and 
 barred punishment is matter of defense, and 
 must be determined by the same tribunal which 
 tries the charge. Should the case be tried 
 before a court-martial duly organized, and the 
 question whether the offense was barred by the 
 statute of limitations decided against the ac- 
 cused, the civil courts would have no jurisdic- 
 tion by habeas corpus or otherwise over such 
 decision of the court-martial. (In re White, 
 17 Fed. Rep., 723.) 
 
 The article of war does not Limit or qualify 
 the jurisdiction of a military tribunal, but pre- 
 scribes a rule of procedure for the benefit of the 
 accused, to be considered and enforced upon 
 the trial in the exercise of a jurisdiction already 
 
 conferred. The limitation is a matter of de- 
 fense, which is to be entertained and de- 
 termined like any other question invohdng an 
 adjudication upon the merits of the case. (In 
 re Da\ison, 21 Fed. Rep. ,618.) 
 
 It is for the court-martial and not for a civil 
 court of the United States to decide whether 
 the statutory limitation can be invoked by a 
 party accused of desertion to protect him from 
 punishment. (In re Davison, 21 Fed. Rep., 
 618.) 
 
 The bar of the statute of limitations provided 
 for in the Articles of War in the case of a party 
 charged with desertion is a defense to be set up 
 in the case, which the military court trying the 
 charge has jurisdiction to determine for itself, 
 without interference from the ci\il courts. It 
 is the duty of courts-martial, in all cases with- 
 in its terms, to give effect to the statute of limi- 
 tations. (In re Zimmerman, 30 Fed. Rep., 
 176, 179.) 
 
 In the case presented it appears to the coiort 
 that the prosecution is barred by the statute 
 of limitations. An erroneous ruling by the 
 military authorities upon this point would in- 
 flict a great wrong upon the citizen so tried and 
 punished. However, if such wrong be in- 
 flicted, deliberately or otherwise, there is still 
 no reviewing, controlling, or correcting power 
 in the civil courts. Congress in such case 
 must afford a remedy or the wrong must be 
 endured. Had we the jurisdiction to do so, we 
 should not hesitate to give full effect to the bar 
 of the statute by discharging the prisoner on this 
 ground. (In re Zimmerman, 30 Fed. Rep., 
 176, 179.) 
 
 A former conviction and the statute of lim- 
 itations are matters of defense on the merits, 
 which must be investigated in the exercise of 
 jurisdiction, and not facts upon which the 
 jurisdiction to hear and determine the charge 
 depends. These matters can not be inquired 
 into on a petition for discharge on habeas 
 corpus. (In re Bogart, 3 Fed. Gas., No. 1, 
 596.) 
 
 See note to article 53, A. G. N., as to juris- 
 diction of civil coiirts; and see note to article 62, 
 A.G.N. 
 
 Effect of pleading statute of Umitations; 
 admits jurisdiction. — The plea of the statute 
 of limitations is not a plea to the jurisdiction 
 of the court, but a plea in bar addressed to a 
 court of competent jurisdiction. It confesses 
 the jurisdiction of the court, and refers the mat- 
 ter to trial in that court to ascertain the truth of 
 the facts and the law arising out of the facts. 
 The plea of the statute of limitations admits the 
 cognizance of the court to hear and determine 
 the matters of offense. (6 Op. Atty. Gen., 
 506, 512.) 
 
 Absence; not amenable to justice. — ^The 
 words, "by reason of having absented himself," 
 certainly do not mean absence from the State 
 or beyond seas as those terms are ordinarily 
 used in statutes of limitation. Nor do they 
 mean merely absence from the company in 
 which or locality where the offender enlisted. 
 The absence contemplated by the article is an 
 absence from the reach of the jurisdiction of the 
 military authorities. To avoid the limitation of 
 the article, it would seem to be necessary that the 
 accused should not only be absent but that he 
 
 1058 
 
The Navy. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 61. 
 
 should be where the militarj^ authorities by 
 reasonable diligence could not make him amen- 
 able to justice. (14 Op. Atty. Gen., 265.) 
 
 Absence, in order to bring the accused -vvith- 
 in the exception, must be such as to render him 
 "not amenable to justice." (15 Op. Atty. 
 Gen., 152, 16.3.) 
 
 The general significance of the word "amen- 
 able" in its modern sense as a law term is 
 "responsible, subject to answer in a court of 
 justice, liable to punishment." As used in the 
 above proAdsion it would seem to mean, within 
 the reach and power of the military authorities 
 to bring to trial before a court-martial ; that is, 
 in a situation where the responsibility or lia- 
 bility to answer for the absence can be made 
 effectiA-e, or within the jurisdiction of a court- 
 martial. (15 Op. Atty. Gen., 152, 163.) 
 
 Unquestionably, absence in a foreign land 
 would place the accused beyond the jurisdic- 
 tion of a court-martial, and thus make him not 
 amenable; so, it has been thought, would absence 
 within the limits of this countn.', if he were 
 where the militaiy authorities by reasonable 
 diligence could not discover him. (15 Op. 
 Attv. Gen., 152, 163; see also C. M. 0. 27, 1913, 
 pp. '13-18; Naval Dig., 1916, pp. 589-592.) 
 
 It would be difficult, perhaps impossible, to 
 lay down any general rule whereby to determine 
 in all cases under what facts and circumstances 
 the accused may be deemed to be beyond the 
 reach and power of the military authorities to 
 bring him to trial, or beyond the jurisdiction 
 of a court-martial. This is a matter which 
 must be left in each case to the judgment of the 
 court itself, upon the particular facts and cir- 
 cumstances appearing therein, subject to re- 
 Aision bv the proper authorities. (15 Op. Atty. 
 Gen., 152, 163.) 
 
 The word "absence " in the article means ab- 
 sence from the jurisdiction of the military 
 courts; that is, from the United States. (In re 
 DaAison, 4 Fed. Rep., 507; reversed on other 
 grounds, 21 Fed. Rep., 618.) 
 
 For other cases, see note to article 62, A. G. N. 
 
 "Manifest impediment." — Causes of delay 
 in bringing an officer to trial can be arranged in 
 three classes: First, those that are created or 
 interposed by the act of the party; second, cir- 
 cumstances arising independently either of his 
 action or that of the Government; and third, 
 such as are controlled by the Government itself. 
 The first class constitute manifest impediments 
 within the meaning of the statute of limitations. 
 It is a broad principle of law and of natural 
 justice that no man can take adA-antage of his 
 own wrong. Examples are, preventing wit- 
 nesses appearing against him, or the like. (9 
 Op. Atty. Gen., 181: compare 14 Op. Atty. Gen. 
 265.) 
 
 Delay occasioned by the Government itself 
 is not a manifest impediment. The accused 
 has a right to a trial Avitliin two years. He can 
 not be deprived of that right at the option of 
 those who have power to try him. The dis- 
 missal of an officer under charges, if an impedi- 
 ment, is created by the Government itself. It 
 was a voluntan,', indefinite suspension, if not 
 an abandonment, on the part of the Govern- 
 ment of the charges then pending and is clearly 
 no manifest impediment within the meaning of 
 the Articles of War. (9 Op. Atty. Gen., 181.) 
 
 The concealment of an offense by the accused 
 is not a "manifest impediment" to his prose- 
 cution within the meaning of the Articles of 
 War and does not prevent the limitation from 
 running in his favor. (14 Op. Atty. Gen., 52.) 
 
 The words, "other manifest impediment," 
 must be construed in connection A^dth the words 
 immediately preceding, A-iz, "by reason of haA'- 
 ing absented himself, ' ' and , taken together, it is 
 apparent that the impediment intended by the 
 article is an impediment similar in kind to 
 absence, and that it is one which renders it 
 impossible for a prosecution to take place. It 
 could not be extended so far as to include 
 concealment of the offense. (14 Op. Atty. 
 Gen., 52.). 
 
 Persons prosecuted for crime are not allowed 
 to claim that the statute of limitations runs in 
 their faA'or for and during the time they are 
 absent from the State or beyond seas, or, in 
 other words, beyond the jurisdiction of the 
 court. But any concealment of the CA-idence 
 of their guilt, or other like fraud on their part, 
 while they remain in that jurisdiction, by which 
 the prosecution is delayed until the time of the 
 bar has run, does not deprive them of the bene- 
 fit of the statute. (14 Op. Attv. Gen., 265, 
 modifjdng 9 Op. Atty. Gen., 181, "183.) 
 
 "Manifest impediment," as used in thje 
 Articles of War, does not mean merely want of 
 eAddence or ignorance as to the offender or of- 
 fense by the militarv' authorities, but it means 
 something akin to absence — want of power, or 
 a phvsical inabilitv to bring the partv charged 
 to trial. (14 Op. Atty. Gen., 265.) 
 
 "Other manifest impediment" means only 
 such impediments as operate to prevent the 
 military court from exercising its jurisdiction, 
 as, forinstance,hisbeing continuously a prisoner 
 in the hands of the enemy, or being imprisoned 
 under the sentence of a ciAil court for a time, 
 or the like. (In re DaA-ison, 4 Fed. Rep., 507; 
 reversed on other grounds, 21 Fed. Rep., 618.) 
 
 For other cases, see note to article 62, A. G. N. 
 
 In custody of cIatQ authorities. — Where an 
 officer charged Avith the commission of an of- 
 fense in A-iolation of both the State law and the 
 Articles of War is deliA-ered to the ciA-il author- 
 ities for trial, the military authorities should 
 take heed that the charges for Aiolation of the 
 Articles of War be put in due fonn and so re- 
 main suspended or adjourned merely, in order 
 that the limitation of time proA-ided by the 
 Articles of War do not begin to run; and that, 
 howeA^er much time be consumed in the ciAil 
 proceedings, still, at the expiration of them, he 
 may be duly tried by a court of his military 
 peers. (6 Op. Atty. Gen., 413, 428.) 
 
 A prosecution of an officer before a court- 
 martial haA'ing been instituted and the party 
 arraigned, Avithin the tAvo years required by 
 law, and the accused pleading the pendency of 
 civil proceedings arising in the matter, AA'here- 
 upon the proceedings of the court-martial were 
 suspended until reassembled by an order 
 issued after the lapse of two years, held that the 
 statute of limita,tions could not then be pleaded 
 in the case. (6 Op. Atty. Gen., 506.) 
 
 Officer dismissed and subsequently re- 
 stored to the Army. — ^^^lere charges Avere pre- 
 ferred against an officer in the Army for disobe- 
 dience of orders in June, 1856, and in Septem- 
 
 1059 
 
Sec. 1624, Art. 62. 
 
 PL 2. REVISED STATUTES. 
 
 The Navy. 
 
 ber following, for other reasons, he was dismissed 
 the service by the President, no court-martial 
 having been ordered to investigate the charges 
 against him, held that on his being restored to 
 the Army he could not be tried on the charges 
 pending against him at the time of his dis- 
 missal, after the lapse of two years since the 
 conmiission of the alleged onense. (9 Op. 
 Atty. Gen., 181.) 
 
 The question whether an officer who has been 
 dismissed from the ser\dce is lial)le to be tried 
 by court-martial for offenses previously com- 
 mitted, examined; but no opinion given 
 thereon. (9 Op. Atty. Gen., 181. See note 
 above, under preamble to sec. 1624, R. S., as to 
 jurisdiction of persons after discharge from the 
 Navy, or after release from active duty in the 
 Naval Reserve Force.) 
 
 Jurisdiction after discharge. — Under the 
 article of war (corresponding to this article) it 
 appears that a soldier may be arrested and tried 
 after the expiration of his tenn of service for a 
 military offense committed during such term of 
 ser\dce, so that the order for the court-martial 
 is issued within two years from the commission 
 of the offense. In any view of the matter, a 
 soldier may be held for trial after the term of 
 his enlistment, if arrested for the offense be- 
 fore the expiration of the term. (In re Bird, 
 3 Fed. Cas. No. 1,428.) 
 
 The two years' limitation presaibed by the 
 88th article of war (similar te art. 61, A. G. N.) 
 applies to all offenses triable and punishable 
 by court-martial, including those which may 
 be thus tried and punished under the act of 
 March 2. 1863 (12 Stat., 696; see art. 14, A. G. 
 
 N.), punishing frauds upon the United States 
 by persons in the land and naval forces; and 
 providing that any person committing such 
 offense who shall afterwards be discharged or 
 dismissed shall, notwithstanding such dis- 
 charge or disnussal, continue to be liable to be 
 arrested and held for trial and sentence by a 
 court-martial in the same manner and to the 
 same extent as if he had not received such dis- 
 charge or been dismissed. (14 Op. Atty. 
 Gen., 52.) 
 
 Article 61, A. G. N., may, with some force, 
 be said to provide by implication, affirmatively, 
 viz, that any person committing an offense 
 within two years before the issuing of the 
 order for trial may be tried therefor, whether 
 he has left the service or not. However, it is 
 doubtful whether the mere fixing by Congress 
 of a general period of limitation should be 
 be taken to indicate an intention to extend the 
 basic jurisdiction over a class not subject to it 
 theretofore. It is possible that the attention 
 of Congress was not at all engaged with the sub- 
 ject of such basic jurisdiction. (31 Op. Atty. 
 Gen., 521, 528.) 
 
 See note under preamble to section 1624, 
 Revised Statutes, as to jurisdiction of pereona 
 discharged fi'om the Navy, whose enlistment 
 has expired, or who have been relieved fiom 
 duty in the Naval Reserve Force; and see notes 
 above, under "Manifest impediment," and 
 " Desertion in time of war." 
 
 No limitation in proceedings before 
 courts of inquiry. — See note to article 57, 
 A. G. N. 
 
 Art. 62. [Limitation of trials ; desertion in time of peace.] No person 
 shall be tried by court-martial or otherwise punished for desertion in time of 
 peace committed more than two years before the issuing of the order for such 
 trial or punishment, unless he shall meanwhile have absented himself from the 
 United States, or by reason of some other manifest impediment shall not have 
 been amenable to justice within that period, in which case the time of his 
 absence shall be excluded in computing the period of the limitation: Provided, 
 That said limitation shall not begin until the end of the term for which said 
 person was enlisted in the service. 
 
 This article was added to the Articles for the 
 Government of the Navy, as article 62 
 thereof, by act of February 25, 1895 (28 
 Stat., 680). See historical note under 
 article 61, A. G. N. 
 
 Whether desertion is continuing offense; 
 when statute begins to run. — The general 
 limitation proA'ided by the Articles of War held 
 applicable to the offense of desertion, no special 
 provision being made for that offense. The 
 limitation begins to run from the commission 
 of the offense, except in a case where, by reason 
 of "manifest impediment," the accused is 
 not amenable to justice within two years from 
 that time. In such case it begins to run from 
 the removal of the impediment. (15 Op. Atty. 
 Gen., 152.) 
 
 Desertion is a continuing offense; an offense 
 which may endure (that is, be continually 
 committed) from day to day after the period of 
 
 its completion. But the continuing commis- 
 sion thereof is limited by the obligation to serve 
 imposed upon the deserter by his engagement. 
 When that obligation ceases to exist, the com- 
 mission of the offense necessarily terminates, 
 and the limitation then begins to run in cases 
 notexcepted. (15 Op. Atty. Gen., 152; affirmed, 
 16 Op. Atty. Gen., 170, 396.) 
 
 Enlistments are required to be for a specified 
 time. By his engagement the soldier is bound 
 for a specific term of ser\ice, the last day of 
 which is as much fixed by the contract as the 
 first. With the last day of the term his engage- 
 ment expires, and with the expiration of his en- 
 gagement the obligation to serve, thereby im- 
 posed, is at an end. This results notwithstand- 
 ing that there has been an infraction of the con- 
 tract by desertion or otherwise, unless the 
 soldier, before the term is up, consents to an 
 extension. (15 Op. Atty. Gen., 152; affirmed, 
 16 Op. Atty. Gen., 170, 396.) 
 
 1060 
 
The Navy. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 62. 
 
 The provision in the Articles of War that a 
 deserter shall be liable to serve for such period 
 as necessary to make good time lost by his un- 
 authorized absence is a penal pro\ision, and 
 operates only after con\'iction. (15 Op. Atty. 
 Gen., 152; affirmed, 16 Op. Atty. Gen., 170, 396.) 
 
 For reasons above stated, held, in the case of 
 an enlisted soldier, that (excepting where the 
 offender has previously surrendered himself or 
 been apprehended, or whereby reason of mani- 
 fest impediment he is not amenable to justice) 
 the limitation begins to run from the last day 
 of the term for which he enlisted, under the 
 general article applicable to all offenses, and in 
 the absence of any specific enactment applica- 
 ble to desertion. (15 Op. Atty. Gen., 152; 
 affirmed, 16 Op. Atty. Gen., 170, 396.) 
 
 In the case of desertion by a commissioned 
 officer, whose engagement is an unlimited one, 
 the limitation begins to run only from the date of 
 apprehension or surrender. (15 Op. Atty. Gen., 
 152, 163; affirmed, 16 Op. Atty. Gen., 170, 396.) 
 
 It would_ certainly be a startling proposition 
 that there is no limitation at all upon prosecu- 
 tions for the offense of desertion ; that one who 
 has once been a deserter is subject during the 
 whole of his natural life to be brought to trial 
 before a military court and punished for this 
 offense, even in extreme old age. With the 
 single exception of the crime of murder, the 
 almost utdversal poUcy of the criminal law is 
 to prescribe a term within which the offender 
 shall be brought to trial. (In re DaAison, 4 
 Fed. Rep., 507; reversed on other grounds, 21 
 Fed. Rep., 618.) 
 
 The whole effect of the limitation can not be 
 taken away on the theory that the desertion 
 may be considered for some purposes to be a 
 continuing offense. The offense was complete 
 for the purpose of the limitation on the day 
 that the accused deserted and which was 
 charged against him as the date the offense was 
 committed. (In re Da\ison, 4 Fed. Rep., 507; 
 reversed on other grounds, 21 Fed. Rep., 618.) 
 
 Were the question properly before us, we 
 should have no difficulty in reaching the same 
 conclusion as to the effect of the statute of 
 limitations as that attained in the Davison case 
 (4 Fed. Rep., 507); but that question is not 
 properly before us; as it is exclusively a ques- 
 tion for the tribunal ha\T.ng jurisdiction to try a 
 party charged with the oflense of desertion, 
 we are nqt authorized to consider the question 
 at all. (In re White, 17 Fed. Rep., 723.) 
 
 A question has arisen whether desertion is a 
 continuing offense in such sense that the 
 statute does not begin to run until the expira- 
 tion of the term of enlistment. A continuing 
 civil or military obligation to serve until the 
 expiration of the term of enlistment is one 
 thing, and a continuing criminal offense, if 
 such there can be, which is perfected and ripe 
 for charges and trial at the moment it is "com- 
 mitted" for the purpose of barring a trial and 
 punishment under the statute of limitations, is 
 quite another. Some, however, maintain the 
 affirmative of the proposition, notwithstanding 
 the language of the statute is, after the offense 
 "appears to have been committed." Although 
 by no means satisfied with such \dew, held that 
 the question whether the trial is barred by the 
 statute of limitations is one for determination 
 
 bv the court-martial. (In re Zimmerman, 
 
 30 Fed. Rep., 176,179.) 
 
 The_ above cases reviewed, and held that 
 desertion from the Navy is not a continuing 
 offense; that it is committed and is complete 
 at the moment the person absents himself with 
 Uie requisite intent. (Op. Atty. Gen., Feb. 27, 
 1922, file 26251-26615:8.) 
 
 See note above, under article 61, A. G. N., 
 as to desertion in time of war. 
 
 Trial after expiration of enlistment. — 
 The jurisdiction of a naval court-martial is, 
 by the Articles for the Government of the Navy, 
 confined to persons in the naval service, except 
 for offenses set forth in article 14, A. G. N., and 
 for the offense of desertion in time of peace as 
 set forth in article 62, A. G. N. Hence, in the 
 case of one who deserted from the Marine Corps 
 in time of war, and whose enUstment expired 
 while he was in desertion, held that a naval 
 court-martial did not have jiu-isdiction to try 
 him for such desertion after the date his enlist- 
 ment expired; and the proceedings, findings, 
 and sentence were accordingly disapproved. 
 (C. M. O. 151, 1920, pp. 11, 12, case of George 
 M. Runyan, citing 15 Op. Atty. Gen., 152, and 
 
 31 Op. Atty. Gen., 521. But see ex parte Clark, 
 noted below.) 
 
 Opinion in case of George M. Runyan (CM. 
 O. 151, 1920, above noted), cited, and re- 
 marked with respect thereto: "If the effect 
 thereof is that a man may desert, remain in 
 hiding until the time of his enlistment expires, 
 and then escape all responsibility, I can not 
 agree with such a conclusion. The effect 
 thereof upon the morale of the Army and Navy 
 alike would be disastrous. While there is no 
 obligation to serve after the period of enlistment 
 it does not follow that conduct during that 
 period may go unpunished for the reason as- 
 signed. If that were the law, it might be well 
 urged that a com't-martial has no power to 
 imprison after the expiration of the enlistment. ' ' 
 (Ex parte Clark, 271 Fed. Rep., 533.) 
 
 A marine deserted in Germany while de- 
 tached for service with the Army; subse- 
 quently, and shortly after his term of enlistment 
 would have expired, the French authorities 
 surrendered him to the American Army at 
 Paris; he was then delivered by the military 
 authorities to the custody of the commandant 
 of the navy yard at New York, and a naval 
 court-martial was convened to try him for de- 
 sertion. Held, first, that the naval comt- 
 martial had jurisdiction of the desertion com- 
 mitted by said marine in violation of the Articles 
 of War [see sec. 1621, R. S., and note thereto]; 
 second, that there is no merit in the contention 
 that the naval authorities are without jurisdic- 
 tion because his term of enlistment had ex- 
 pired. (Ex parte Clark, 271 Fed. Rep., 533.) 
 
 A deserter from the Army who has never 
 been discharged from the service is still subject 
 to the jurisdiction of a military tribunal, not- 
 withstanding that his period of enlistment has 
 expired; and while he may plead the statute 
 of limitations as a defense to a prosecution for 
 desertion, a civil court will not interfere with 
 such a prosecution by a military tribunal be- 
 fore that court has acted on and decided the 
 case. As he has not been discharged from the 
 Army, he is subject to the jurisdiction of a mili- 
 
 1061 
 
Sec. 1624, Art. 63. 
 
 rt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 tary tribunal. (In re Cadwallader, 127 Fed. 
 Rep., 881.) 
 
 An enlisted man eontinues in the naval serv- 
 iee after the expiration of his enlistment until 
 there has been some act, such as a discharge, 
 to terminate the status created by his contract 
 of enlistment; and while so in the service he 
 may be tried by court-martial for offenses com» 
 mitted during his period of enlistment, whether 
 or not he has in the meantime been arrested or 
 other steps taken to enforce the jurisdiction. 
 (Op. Atty. Gen., Feb. 27, 1922, file 26251- 
 26615:8; see note to art. 61, A. G. N., under 
 ■'Desertion in time of war.'") 
 
 A man enlisted in the Navy January 4, 1908, 
 for a term of four years; his enlistment expired 
 on January 3, 1912; in the meantime, he was 
 declared a deserter on March 7, 1908; he sur- 
 rendered to the naval authorities on September 
 20, 1913; the Bureau of Navigation directed 
 removal of the mark of desertion from his rec- 
 ord, October 8, 1913; he was tried by summary 
 court-martial for absence \\'ithout leave on 
 October 20, 1913; was sentenced to solitary 
 confinement for 30 days and extra police duties 
 for 60 days; which said sentence was duly ap- 
 proved and executed. (20 Comp. Dec, 
 751.) 
 
 By an act approved January 29, 1813 (2 Stat., 
 796), it was provided that deserters from the 
 Army should be liable to make good time lost 
 by absence in desertion, ''and that such soldier 
 shall and may be tried by a court-martial and 
 punished although the term of his enlistment 
 may have elapsed previous to his being appre- 
 hended or tried." It may well be doubted 
 whether, in the absence of this enactment, a 
 soldier was triable by a court-martial organized 
 after the expiration of his term of enlistment, 
 for any offense committed during his term; 
 but that act was designed for the punishment 
 of the offense of desertion, although the term 
 of enlistment may have elapsed previous to 
 the apprehension and trial of the offender. 
 But said act of 1813 was not intended to repeal 
 the article of war limiting the time for trial of 
 offenses, and to make a deserter liable to betried 
 at any time after the expiration of his enlist- 
 ment; the limitation imposed by that article 
 still remained. (13 Op. Atty. Gen., 462.) 
 
 Trial void if in violation of statute of 
 limitation. — A man deserted from the Army 
 on October 2, 1865; his enlistment would have 
 expired on August 21, 1868; he was appre- 
 hended April 13, 1871. By act of April 10, 
 1806, article 88 (2 Stat., 369), it was declared 
 that "no person shall be liable to be tried and 
 punished by a general court-martial for any 
 offense which shall appear to have been com- 
 mitted within two years before the issuing of 
 the order for such trial, unless," etc. Said 
 article of war applied to desertion as well as to 
 other offenses. The accused in this case did 
 not come within the exceptions contained in 
 said article. Held, that the court-martial was 
 
 without jurisdiction. (13 Op. Atty. Gen., 
 462.) 
 
 Where a soldier enlisted on August 16, 1870, 
 deserted from the Army on September 19, 1870, 
 but in about one year afterwards reenlisted un- 
 der an alias in another regiment and an order 
 was issued on !March 11, 1873, for his trial by 
 court-martial for desertion, for which offense he 
 was thereupon tried by the court, con\dcted, 
 and sentenced to punishment, held that the 
 prosecution was barred by the two years' lim- 
 itation prescribed by the Articles of War, and 
 that consequently the conviction and sentence 
 are void. (14 Op. Atty. Gen., 265.) 
 
 See note to article 61, A. G. N., under "View 
 that statute of limitations is matter of defense." 
 
 Statute of limitations matter of de- 
 fense. — The judgment of a court-martial, reg- 
 ularly organized, convicting and sentencing a 
 soldier for desertion, which judgment has been 
 confirmed as pro\'ided in the Articles of War, 
 is not subject to re"view by a cixdl court in ha- 
 beas corpus proceedings on the ground that the 
 prosecution was barred by limitation under the 
 I03d article of war, such defense being one to 
 the merits, to be determined by the court- 
 martial, and not affecting its jurisdiction. (Ex 
 parte To wnsend, 133 Fed. Rep., 74; see note to 
 art. 61, A. G. N.) 
 
 Absence. — See note to article 61, A. G. N. 
 
 Absence without leave is not per se sufficient 
 to prevent the limitation from running. (15 
 Op. Atty. Gen., 152.) 
 
 The exception from the limitation contained 
 in the 103d article of war does not produce any 
 effect where the limitation itself would not 
 otherwise run. Hence, absence without leave 
 during the term of enlistment, in the case of a 
 deserter, is unimportant, inasmuch as the of- 
 fense of desertion, being a continuing one dur- 
 ing such term, the limitation would not other- 
 wise begin to run until the expiration thereof. 
 (16 0p.^Atty. Gen., 170.) 
 
 Where the absence of the deserter continues 
 after his term of serxdce has expired, no pre- 
 sumption of law arises that he was not amenable 
 to justice during such absence, and that liis case 
 is accordingly within the exception. The 
 facts must be shown by evidence submitted at 
 the trial. (16 Op. Atty. Gen., 170. Compare 
 cases noted under art. 61, A. G. N., and under 
 this article, as to statute of limitations being 
 matter of defense.) 
 
 Manifest impediment.— See note to article 
 61, A. G. N. 
 
 It is apparent that, as relator had deserted 
 and could not be found during the period of his 
 desertion, there was such a "manifest impedi- 
 ment" in the way of bringing him to justice as 
 would justify excluding the period of his deser- 
 tion from any computation of time within 
 which a prosecution must be begun. (Ex 
 
 garte Clark, 271 Fed. Rep., 533; see also 
 . M. O. 27, 1913, pp. 13-18; Naval Dig., 1916, 
 pp. 589-592.) 
 
 Art. 63. [Limitation of punishments ; time of peace.] Whenever, by any of 
 the Articles for the Government of the Navy of the United States, the punish- 
 ment on conviction of an offense is left to the discretion of the court-martial, 
 the punishment therefor shall not, in time of peace, be in excess of a limit 
 which the President may prescribe. 
 
 1062 
 
The Navy. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1624, Art. 63- 
 
 This article was added to the Articles for the 
 Government of the Navy, as article 63 
 thereof, by act of February 27, 1895 (28 
 Stat., 689). 
 
 Where no limitation prescribed by the 
 President. — Where the Articles of War pro- 
 \ided that the punishment shall not, in time of 
 peace, be in excess of a limit which the Presi- 
 dent may prescribe, and the Pi'esident, in pre- 
 scribing limitations of punishment, made same 
 applicable in terms to enUsted men only, held 
 that the sentence of a court-martial in the case 
 of a commissioned officer, which was approved 
 by the President, was valid, notwithstanding 
 objection that such sentence was in excess of 
 the limit which had been prescribed by the 
 President; that the limitations so prescribed 
 were applicable to enlisted men only ; and that 
 it is e\ident that a limit on discretion in pun- 
 ishment, to be imposed by the President, can 
 have only such operation as he may affirma- 
 tively prescribe. (Carter v. McClaughry, 183 
 U. S., 365, 382.) 
 
 Punishment for repeated oflfense. — Ev- 
 ery successive disobedience of orders is a fresh 
 offense and subjects the offender to additional 
 punishment. It has been settled in a penal 
 prosecution that a like act when prohibited, 
 if distinctly repeated even on the same day, 
 constitutes a second offense and incurs an 
 additional penalty. (Wilkes v. Dinsman, 7 
 How., 89, 128.) 
 
 Single sentence for all offenses. — The 
 rule is established by military usage that the 
 sentence of a court-martial shall be in every 
 case an entirety; that is, that there shall be but 
 a single sentence covering all the convictions 
 and all the charges and specifications upon 
 which the accused is found guilty, however 
 separate and distinct may be the different 
 offenses found, and however different may be 
 the punishments called for by the offenses. 
 Where, then, there is a con\'iction of several 
 offenses, the sentence is warranted to the ex- 
 tent that such offenses are punishable, even 
 where the offenses are in \'iolation of the same 
 article. Cumulative sentences are not cumu- 
 lative punishments, and a single sentence for 
 several offenses in excess of that prescribed for 
 one offense mav be authorized by statute; 
 (Carter v. McClaughiy, 183 U. S., 365, 393, 394; 
 see also notes to arts. 14, 22, and 53, A. G. N.) 
 
 Sentences cumulative. — The customary 
 military law and the Army Regulations unite 
 in requiring that different sentences to im- 
 prisonment, imposed by separate courts-martial 
 upon the same offender for distinct offenses, be 
 regarded as cumulative and be executed con- 
 secutively, one upon the expiration of another, 
 in the order of their imposition. (Kirkman v. 
 McClaughry, 160 Fed. Rep., 436.) 
 
 Cruel and unusual punishments. — See 
 article 49, A. G. N., as to prohibited punish- 
 ments; and see note to Constitution, eighth 
 amendment. 
 
 A sentence of dismissal in the case of an offi- 
 cer of the Marine Corps is not illegal, nor in 
 conflict with the provision of the Constitution 
 which declares that cruel and unusual pun- 
 ishments shall not be inflicted, although under 
 the circumstances severe and harsh, it appear- 
 ing that the milder punishment of reprimand or 
 
 suspension would have fully satisfied the most 
 rigorous demands of justice. (3 Op. Atty. Gen., 
 631.) 
 
 The words, "such other punishment as a 
 court-martial shall adjudge," are to be limited 
 by the custom of the service, and authorize 
 only such punishments as are usual. (10 Op. 
 Atty .Gen., 158.) 
 
 It is certainly hard to mark the line where 
 usual and proper punishments end and unusual 
 and cruel ones begin; and the sentence pro- 
 nounced under an authority so broad and gen- 
 eral ought to be so far out of proportion to the 
 offense committed as to shock the sense of jus- 
 tice before it is arrested as contrary to usage. 
 If it bear a general relation to the crime, and be 
 not entirely outside the circle of naval pun- 
 ishments, any interference with it on that 
 ground could hardly be justified. (10 Op. 
 Atty. Gen., 158.) 
 Section 16 of an act approved July 17, 1862 (12 
 Stat., 596), provided that any contractor for 
 supplies for the Army or Navy found guilty by 
 com-t-martial of fraud or willful neglect of duty 
 "shall be punished by fine and imprisonment, 
 or such other punishment as the court-martial 
 shall adjudge"; and that any person contract- 
 ing to furnish such supplies "shall be deemed 
 and taken as a part of the land or naval forces 
 of the United States, for which he shall contract 
 to furnish said supplies, and be subject to the 
 rules and regulations for the government of the 
 land and naval forces of the United States. " 
 A contractor was sentenced by a naval general 
 court-martial under this section to "be here- 
 after excluded from any further deliveries, 
 either on contract or open purchase, for naval 
 supplies. " Held, that such sentence was un- 
 warranted bv the usage of the service, and was 
 therefore illegal. (12 Op. Atty. Gen., 528. 
 See note under preamble to section 1624, R. S., 
 as to contractors not being amenable to court- 
 martial.) 
 
 The discretion given the court-martial in the 
 matter of iniUcting punishment upon convic- 
 tion is to be imderstood as controlled by the 
 custom of the ser\T.ce and limited to the im- 
 position of that kind of punishment only which 
 has become usual. A sentence of incapacity 
 or disability does not fall within the range of 
 discretionary punishments allowable by the 
 usage of the ser\dce, and is not within the power 
 of a court-martial except where expressly 
 authorized by law. (12 Op. Atty. Gen., 528.) 
 
 Not decided whether the confinement of the 
 accused for a long term in a prison of narrow 
 cells and limited appliances for comfort would 
 be a punishment which the law regards as cruel 
 and unusual, and forbidden by the Constitu- 
 tion, because the suggestion as to the character 
 of the prison is unsupported by anything in the 
 record, and no point of the kind was made at 
 the argument in this court. (Johnson v. Sayre, 
 158 U. S., 109, 116.) 
 
 Imprisonment until pajmaent of fine. — 
 The sentence of a court-martial that the accused 
 "be imprisoned in such place as the honorable 
 Secretary of the Navy may designate for the 
 term of two years; to lose all pay which may 
 become due him during such confinement, 
 except the sum of ten dollars per month, this 
 
 loss amounting to one thousand nine hundred 
 
 1063 
 
Sec. 1624, Art. 63. 
 
 Pt. 2. REVISED STATUTES. 
 
 The Navy. 
 
 and sixty-six dollars; to be fined in the sum of 
 five hundred dollars, which fine must be paid 
 before or at the end of the term of confinement; 
 to be detained iu coiilinenicnt without pay 
 until such fine be paid, and at the expiration 
 of term of confinement to be dishonorably dis- 
 charged from the naval service of the United 
 States," which sentence was adjudged by the 
 court on revision of its original sentence in the 
 case, held not illegal. (In re Reed, 20 Fed. 
 Cas. No. 11636; affirmed, ex parte Reed, 100 U. 
 S., 13.) 
 
 Imprisonment beyond term of enlist- 
 ment. — The President having fixed a term of 
 10 years as the maximum of imprisonment in 
 cases prosecuted under the 62d article of war 
 (corresponding to art. 22, A. G. N.), as author- 
 ized by Congress, a court-martial on convicting 
 a soldier of conduct prejudicial to good order 
 and military discipline in violation of such 
 article had j urisdictioti to sentence accused to 
 a term of five years' imprisonment, though such 
 term extended beyond the term of military 
 serWce for which he had enlisted. (In re 
 Stubbs, 133 Fed. Rep., 1012; see note to pre- 
 amble of sec. 1624, R. S., under "Where juris- 
 diction attached prior to discharge.") 
 
 Place of imprisonment designated by 
 reviewing authority. — There is nothing in 
 the character of a court-martial which inher- 
 ently precludes committing to the reviewing 
 authority the determination of the character of 
 imprisonment to be imposed within the pre- 
 scribed limits. There is no statute which pre- 
 vents the adoption of a rule or regulation com- 
 mitting the matter to the reviewing authority 
 for determination of the place of imprisonment. 
 (In re Brodie, 128 Fed. Rep., 665, 668.) 
 
 Where the judgment of a court-martial di- 
 rected the kind and duration of his imprison- 
 ment, the place of his confinement may be later 
 designated by the War Department and such 
 designation on the commitment papers will be 
 presumed to have been lawfully made. (Ex 
 parte Givins, 262 Fed Rep., 702; affirmed, 
 Givens v. Zerbst, 255 U. S., 11.) 
 
 Regulations as to imprisonment; effect 
 of footnote. — A manual issued by the Secre- 
 tary of War providing in a footnote that in cer- 
 tain cases the words "in such place as the re- 
 viewing authority may direct, " were to be used 
 in the sentence of a court-martial with reference 
 to the place of confinement, operated to qualify 
 Army Regulations issued by the Secretary of 
 War with the approval of the President. A 
 footnote to a rule or regulation is not less author- 
 itative than the principal text, where there is a 
 single authorship. Accordingly, where the 
 sentence in a proper case is in the form above 
 quoted, such sentence is conclusive and not 
 open to collateral attack. (In re Brodie, 128 
 Fed. Rep., 665.) 
 
 Stoppage of pay. — The amount of the re- 
 ward paid for the apprehension of a deserter 
 who, upon trial by a court-martial for deser- 
 tion, has been convicted only of the offense of 
 absence without leave, can not lawfully be 
 stopped against his pay in a case where the sen- 
 tence of the court does not impose such stoppage. 
 
 Stoppage of pay against a soldier is unauthor- 
 ized unless made in execution of the sentence 
 of a court-martial or in pursuance of a statute 
 or in conformity to a regulation having the force 
 of law. (16 Op. Atty. Gen., 474; see notes to 
 sees. 1556 and 1569, R. S.) 
 
 Certainty required.^ — A sentence which 
 declares "all pay and allowances now due or 
 that may hereafter become due," to be for- 
 feited, except certain amounts specially named 
 fixes the amount of pay forfeited sufficiently 
 within the intent of the Navy Regulations of 
 1870 (sec. 248), requiring that sentences in- 
 cluding forfeiture of pay "fix the amount of 
 the pay so forfeited, stating it in dollars and 
 cents." (WilUamsi). U. S.,_24 Ct. Cls., 306.) 
 
 Judgments, whether of civil or military tri- 
 bunals, should embrace the highest degree of 
 certainty, ' ' certainty to a certain intent in every 
 particular. " It is a sound maxim of the law 
 that "that is sufficiently certain which can be 
 made certain." The sum to be forfeited, al- 
 though not fixed by the sentence, could be de- 
 termined with accuracy by reference to other 
 reliable data. To hold that the sentence was 
 void for uncertainty, because the amount is 
 not stated on the face of the sentence, would be 
 a technical requirement not warranted. The 
 objection being matter of form only, it does not 
 vitiate the sentence as a judicial finding. 
 (Williams v. U.S., 24 Ct. Cls., 306.) 
 
 "Cashiered" and "dismissed" con- 
 strued. — See note to article 46, A. G. N. 
 
 Dismissal mandatory. — See act of April 9, 
 1906, section 5 (34 Stat., 105), as to certain 
 offenses of neglect of duty by officers of the 
 Naval Academy. 
 
 Coast Guard; limitation of punish- 
 ments. — "Whenever, in time of war, the 
 Coast Guard operates as a part of the Navy in 
 accordance with law, the personnel of that 
 service shall be subject to the laws prescribed 
 for the government of the Navy: Provided, 
 That in the initiation, prosecution, and comple- 
 tion of disciplinary action, including remis- 
 sion and mitigation of punishments for any 
 offense committed by any officer or enlisted 
 man of the Coast Guard, the jurisdiction shall 
 hereafter depend upon and be in accordance 
 with the laws and regulations of the depart- 
 ment having jurisdiction of the person of such 
 offender at the various stages of such action: 
 Provided further, That any punishment im- 
 posed and executed in accordance with the 
 provisions of this section shall not exceed that 
 to which the offender was liable at the time of 
 the commission of his offense." (Act Aug. 29, 
 1916, 39 Stat., 600.) 
 
 For other cases see notes to articles 7, 8, 14, 
 and 48, A. G. N. 
 
 Perjury. — As to punishment for, see article 
 42, A. G. N. 
 
 Limitations of punishment prescribed 
 by the President, as modified from time to 
 time, are published in "Naval Courts and 
 Boards," issued by the Navy Department, 
 office of the Judge Advocate General of the 
 Navy. 
 
 1064 
 
TITLE XIX. 
 PEOVISIONS APPLICABLE TO SEVERAL CLASSES OF OFFICERS. 
 
 Sec. 
 
 1754. Preference of persons disabled in mili- 
 
 tary or naval service. 
 
 1755. Recommendation for employment in 
 
 private industries. 
 
 1757. Oath of office. 
 
 1758. "t^Tio may administer oath. 
 
 1759. Custody of oath. 
 
 1760. Unauthorized office; no salan^' for. 
 
 1761. Salaries; recess appointments. 
 
 1763. Double salaries. 
 
 1764. Extra ser^•ices. 
 
 Sec. 
 
 1765. Extra allowances. 
 
 1766. Ofiicer in arrears; withholding pay. 
 
 1773. Commissions. 
 
 1774. Recess appointments; accounting officers 
 
 notified. 
 
 1778. Oaths or acknowledgments; before whom 
 
 taken. 
 
 1779. Newspapers, books, etc.; restriction upon 
 
 purchase. 
 1784. Contributions, presents, etc., to supe- 
 riors. 
 
 Sec. 1754. [Preference of persons disabled in military or naval service.] 
 Persons honorably discharged from the military or naval service by reason of 
 disability resulting from wounds or sickness incurred in the line of duty, shall 
 be preferred for appointments to civil offices, provided they are found to possess 
 the business capacity necessary for the proper discharge of the duties of such 
 offices.— (3 Mar., 1865, Res. No. 27, s. 1, v. 13, p. 571.) 
 
 See laws and decisions noted under section 416, Revised Statutes, subheading, "Honorably 
 discharged soldiers or sailors. " 
 
 Sec. 1755. [Recommendation for employment in private industries.] In 
 grateful recognition of the services, sacrifices, and sufferings of persons honor- 
 ably discharged from the militar}^ and naval service of the country, by reason 
 of wounds, disease, or the expiration of terms of enlistment, it is respectfully 
 recommended to bankers, merchants, manufacturers, mechanics, farmers, and 
 persons engaged in industrial pursuits, to give them the preference for appoint- 
 ments to remunerative situations and employments. — (3 Mar., 1865, Res. No. 
 27, s. 2, V. 13, p. 571.) 
 
 Sec. 1757. [Oath of office.] Whenever any person who is not rendered ineli- 
 gible to office by the provisions of the fourteenth amendment to the Consti- 
 tution is elected or appointed to any office of honor or trust under the Govern- 
 ment of the United States, and is not able, on account of his participation in 
 the late rebellion, to take the oath prescribed in the preceding section, he shall, 
 before entering upon the duties of his office, take and subscribe in lieu of that 
 oath the following oath: "I, A B, do solemnly swear (or affirm) that I will 
 support and defend the Constitution of the United States against all enemies, 
 foreign and domestic; that I will bear true faith and allegiance to the same, 
 that I take this obligation freely, without any mental reservation or purpose of 
 evasion ; and that I will well and faithfully discharge the duties of the office on 
 which I am about to enter. So help me God." — (11 July, 1868, c. 139, v. 15, 
 p. 85. 15 Feb., 1871, c. 53, v. 16, p. 412.) 
 
 1065 
 
Sec. 1763. Pt.2. REVISED STATUTES. PubUc Officers. 
 
 Amendment to this section was made by act of 
 May 13, 1884, section 2 (23 Stat., 22), as 
 follows: "Section seventeen hundred and 
 fifty -six of the RcA^sod Statutes be, and the 
 same is hereby, repealed; and hereafter the 
 oath to be taken by any person elected or 
 appointed to any office of honor or profit 
 either in the civil, military, or naval serv- 
 ice, except the President of the United 
 States, shall be as prescribed in section 
 seventeen hundred and fifty-seven of the 
 Ile\"ised Statutes. But this repeal shall 
 not affect the oaths prescribed by existing 
 statutes in relation to the performance of 
 duties in special or particular subordinate 
 offices and employments. " 
 
 As to special oath prescribed for employees in 
 the postal service, and which is also re- 
 required by law to bo taken by Navy mail 
 clerks and assistant Navy mail clerks, see 
 sections 391 and 392, Revised Statutes, and 
 notes thereto. 
 
 As to oath of allegiance required to be taken by 
 enlisted men of the Navy and Marine 
 Corps, see notes to sections 1418 and 1609, 
 Revised Statutes. 
 
 As to commencement of pay of officers ap- 
 pointed to the Navy, see section 1560 and 
 note to section 1383, Revised Statutes. 
 
 As to oath of allegiance required to be taken by 
 persons prosecuting claims, see sections 
 3478 and 3479, Revised Statutes. 
 
 Sec. 1758. [Who may administer oath.] The oath of office required by either 
 of the two preceding sections may be taken before any officer who is authorized 
 either by the laws of the United States, or by the local municipal law, to 
 administer oaths, in the State, Territory, or District where such oath may be 
 admmistered.— (6 Aug., 1861, c. 64, s. 2, v. 12, p. 326. 18 April, 1876, c. 
 66, V. 19, p. 34.) 
 
 See note to section 416, Revised Statutes, under " Oath of office"; see also sections 183 and 392, 
 Revised Statutes, and note thereto. 
 
 Sec. 1759. [Custody of oath.] — The oath of office taken by any person 
 pursuant to the requirements of section seventeen hundred and fifty-six, or of 
 section seventeen hundred and fifty-seven, shall be delivered in by him to be 
 preserved among the files of the House of Congress, Department, or court to 
 which the office in respect to which the oath is made may appertain. — (2 July, 
 1862, c. 128, V. 12, p. 502.) 
 
 Section 1756, Revised Statutes, referred to in this section, was repealed by act of May 13, 
 1884; quoted above, under section 1757. 
 
 Sec. 1760. [Unauthorized office ; no salary for.] No money shall be paid from 
 the Treasury to any person acting or assuming to act as an officer, civil, military, 
 or naval, as salary, in any ofiice when the office is not authorized by some pre- 
 viously existing law, unless such office is subsequently sanctioned by law. — 
 (9 Feb., 1863, c. 25, s. 2, v. 12, p. 646.) 
 
 Sec. 1761. [Salaries; recess appointments.] No money shall be paid from 
 the Treasury, as salary, to any person appointed during the recess of the Senate, 
 to fill a vacancy in any existing office, if the vacancy existed while the Senate 
 was in session and was by law required to be filled by and with the advice and 
 consent of the Senate, until such appointee has been confirmed by the Senate. 
 (9 Feb., 1863, c. 25, s. 2, v. 12, p. 646.) 
 
 See note to Constitution, Article II, section 2, clause 3. 
 
 Sec. 1763. [Double salaries.] No person who holds an office, the salary or 
 annual compensation attached to which amounts to the sum of two thousand 
 five hundred dollars, shall receive compensation for discharging the duties of 
 any other office, unless expressly authorized by law. — (31 Aug., 1852, c. 108, s. 
 18, V. 10, p. 100. 20 June, 1874, c. 328, v. 18, p. 109.— Talbot's Case, 10 C. Cls. 
 426.) 
 
 Other laws on the same general subject 
 as this section and sections 1764 and 1765, set 
 forth below, are the following: 
 
 Act June 20, J 874, section 3 (18 Stat., 109): 
 " No civil officer of the Government shall here- 
 after receive any compensation or perquisites, 
 
 1066 
 
Public Officers. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1766. 
 
 directly or indirectly, from the Treasury or 
 property of the United States beyond his salary 
 or compensation allowed by law: Provided, 
 That this shall not be construed to prevent the 
 employment and payment by the Department 
 of Justice of district attorneys as now allowed 
 by law for the performance of ser\dces not cov- 
 ered by their salaries or fees. ' ' 
 
 Act July 31, 1894, section 2 (28 Stat., 205): 
 "No person who holds an office the salary or 
 annual compensation attached to which 
 amounts to the sum of two thousand five hun- 
 dred dollars shall be appointed to or hold any 
 other office to which compensation is attached 
 unless specially heretofore or hereafter specially 
 authorized thereto by law; but this shall not 
 apply to retired officers of the Army or Navy 
 whenever they may be elected to public office 
 or whenever the President shall appoint them 
 to office by and with the advice and consent 
 of the Senate." 
 
 Act June 3, 1896, section 7 (29 Stat., 235): 
 "That section two of the act making appro- 
 priations for the legislative, executive, and 
 judicial expenses of the Government for the 
 fiscal year ending June thirtieth, eighteen 
 hundred and ninety-five, and for other pur- 
 poses, approved July thirty-first, eighteen hun- 
 dred and ninety-four, shall not be so construed 
 as to prevent the employment of any retired 
 officer of the Army or Navy to do work under 
 the direction of the Chief of Engineers of the 
 United States Army in connection with the 
 improvement of rivers and harbors of the 
 United States, or the payment by the proper 
 officer of the Treasury of any amounts agreed 
 upon as compensation for such employment." 
 
 Act August 1, 1914, section 12 (38 Stat., 680): 
 " It shall not be lawful to pay to any person, 
 employed in the service of the United States 
 under any general or lump sum appropriation, 
 any sum additional to the regular compensation 
 received for or attached to any employment 
 held prior to an appointment or designation as 
 acting for or instead of an occupant of any 
 
 other office or employment. This provision 
 shall not be construed as prohibiting regular 
 and permanent appointments by promotion 
 from lower to higher grades of employments. ' ' 
 
 Act May 10, 1916, section 6 (39 Stat., 120), as 
 reenacted with amendments by act August 29, 
 1916 (39 Stat., 582): "That unless otherwise 
 specially authorized by law, no money appro- 
 priated by this or any other act shall be avail- 
 able for payment to any person receiving more 
 than one salary when the combined amount of 
 said salaries exceeds the sum of $2,000 per 
 annum, but this shall not apply to retired offi- 
 cers or enlisted men of the Army, Navy, Marine 
 Corps, or Coast Guard, or to officers and enlisted 
 naen of the Organized Militia and Naval Militia 
 in the several States, Territories, and the Dis- 
 trict of Columbia: Provided, That no such 
 retired officer, officer, or enlisted man shall be 
 denied or deprived of any of his pay, salary, or 
 compensation as such, or of aay other salary or 
 compensation for services heretofore rendered, 
 by reason of any decision or construction of 
 said section six." 
 
 Act March 3, 1917 {39 Stat., 1106): Restricts 
 payments to Government officers by private 
 parties. 
 
 See section 1440, Revised Statutes, as to ap- 
 pointment of Navy officers in the diplo- 
 matic or consular service; section 1860, 
 Revised Statutes, as to naval personnel 
 holding civil offices in territories; and act 
 June 10, 1896 (29 Stat., 361), as to officers 
 of the Navy or Marine Corps holding em- 
 ployment with contractors furnishing naval 
 supplies or war material to the Govern- 
 ment. 
 See sections 170 and 182, Revised Statutes, and 
 notes thereto, restricting extra compen- 
 sation to clerks and officers in the executive 
 departments. 
 See note to section 1765, Revised Stat- 
 utes, for interpretation of sections 1763-1765, 
 Revised Statutes, and laws above quoted. 
 
 Sec. 1764 [Extra services.] No allowance or compensation shall be made 
 to any officer or clerk, by reason of the discharge of duties which belong to 
 any other officer or clerk in the same or any other Department; and no allow- 
 ance or compensation shall be made for any extra services whatever, which 
 any officer or clerk may be required to perform, unless expressly authorized 
 by law.— (26 Aug., 1842, c. 202, s. 12, v. 5, p. 525.) 
 
 See later enactments quoted above, under section 1763, Revised Statutes; and see decisions 
 noted below, under section 1765. 
 
 Sec. 1765. [Extra allowances.] No officer in any branch of the public service 
 or any other person whose salary, pay, or emoluments are fixed by law or regu- 
 lations, shall receive any additional pay, extra allowance, or compensation, in 
 any form whatever, for the disbursement of public money, or for any other 
 service of duty whatever, unless the same is authorized by law, and the appro- 
 priation therefor explicitly states that it is for such additional pay, extra 
 allowance, or compensation. — (3 Mar., 1839, c. 82, s. 3, v. 5, p. 349. 23 Aug., 
 1842, c. 183, s. 2, v. 5, p. 510. 1 May, 1876, c. 88, v. 19, y. 45.) 
 
 54641"— 22- 
 
 -68 
 
 1067 
 
Sec. 1765. 
 
 PL 2. REVISED STATUTES. 
 
 Public Officers. 
 
 See other enactments quoted above, under sec- 
 tion 1763, Revised Statutes. 
 Cash rewards to civil employees of Navy 
 Department are authorized by act of July 
 1, 1918 (40 Stat., 718.) 
 
 Legality of officers accepting civil ap- 
 pointments. — The legality of a retired officer 
 of the Navy accepting ci^il office is a question 
 which must be determined by such officer upon 
 has own responsibility; as the Government does 
 not become interested in the matter until an 
 office has actually been accepted contrary to law. 
 (File 9736-15, Mar. 28, 1910; 9736-18, June 25, 
 1910; 21 Op. Atty. Gen., 510. See note to sec. 
 1440, R. S.) 
 
 Interpretation of sections 1763-1765, 
 Revised Statutes. — Taking these sections 
 all together, held, that the purpose of the legis- 
 lation was to prevent a person holding any 
 office or appointment, for which the law pro- 
 \ide8 a definite compensation by way of salary 
 or otherwise, which is intended to cover all the 
 services which, as such officer, he may be called 
 upon to render, from recei\ing extra compen- 
 sation, additional allowances, or pay for other 
 servdces which may be required of him either 
 by act of Congress or by order of the head of his 
 department, or in any other mode, added to or 
 connected with the regular duties of the place 
 which he holds; but these sections have no 
 application to the case of two distinct offices, 
 places, or employments, each of which has its 
 own duties and its own compensation, which 
 offices may both be held by one person at the 
 same time. In the latter case, he is in the eye 
 of the law two officers, or holds two places or 
 appointments, the functions of which are sep- 
 arate and distinct, and, according to all the 
 decisions, he is in such case entitled to recover 
 the two compensations. In the former case, 
 he performs the added duties under his appoint- 
 ment to a single place, and the statute has pro- 
 vided that he shall receive no additional com- 
 pensation for that class of duties unless it is so 
 provided by special legislation. (U. S. v. 
 Saunders, 120 U. S., 126; see also Mullett v. U. 
 S., 150 U. S., 566; but see act July 31, 1894, 
 quoted above under sec. 1763, R. S.) 
 
 The legislature contemplated duties imposed 
 by superior authority upon the officer as a part 
 of his duty, and which the superior authority 
 had in the emergency a right to impose, and the 
 officer was bound to obey, although they were 
 extra and additional to what had pre\dously 
 been required. But this legislation can by no 
 fair interpretation be held to embrace an em- 
 ployment which has no affinity or connection, 
 either in its character or by law or usage, with 
 the line of his official duty, and where the 
 Ber\dce to be performed is of a different charac- 
 ter and for a different place, and the amount of 
 compensation regulated by law. (Converse v. 
 U. S., 21 How., 463.) 
 
 A receiver of public moneys in Kansas, who 
 had been appointed agent for the sale of Indian 
 trust lands under a treaty with an Indian tribe, 
 was entitled to commissions on such sales in 
 addition to the full compensation as receiver 
 allowed him by law. While the exact amount 
 of his compensation was not fixed, it was clearly 
 inferred that such compensation as the law im- 
 plies where labor is performed by one at the re- 
 request of another, that is to say, a reasonable 
 
 compensation, would be paid. (U. S. v. 
 Brindle, llOU. S.,688.) 
 
 The case of United States v. Brindle, in which 
 an Indian agent received large additional com- 
 pensation for ser\dce3 connected with the sale 
 of lands belonging to the Indians of his agency, 
 was upon the ground that these additional 
 services were performed for the benefit of the 
 Indians, and the statute implied the payment 
 of reasonable compensation for such services. 
 (U. S. V. Saunders, 120 U. S., 126.) 
 
 A retired officer of the Army appointed by the 
 Secretary of the Interior as supervisor of the 
 erection of the Pension Bureau building was 
 entitled to compensation for such services in 
 addition to his pay. Sections 1764 and 1765, 
 Re\'ised Statutes, do not preclude an officer 
 from receiving compensation other than his 
 salarjr for services rendered the Government in 
 an employment which has no affinity or con- 
 nection with his official duty. (Meigs v. U. S., 
 19Ct. Cls., 497.) 
 
 The only difference between this case and 
 those decided by the Supreme Court (Converse 
 V. U. S. and U. S. v. Brindle, above cited) is 
 that in each of the latter cases the party held 
 an office with active duties to be performed, 
 while the present claimant held one with no 
 such duties, but this does not appear to affect 
 the result. The point in each of them was, 
 whether the party was entitled to compensa- 
 tion for services rendered in an employment 
 which had no affinity or connection with the 
 line of his official duty; and the Supreme Court 
 held that he was. This disposes of the objec- 
 tions raised against the claimant's demand in 
 this case. (Meigs v. U. S., 19 Ct. Cls., 497.) 
 
 A retired Army officer may be employed by 
 the War Department to supervise work, where 
 he could not have been assigned to that duty 
 by order of the Secretary of War, and sections 
 1763, 1764, and 1765, Revised Statutes, relating 
 to double pay, do not apply to such a case. 
 (Yates V. U. S., 25 Ct. Cls., 296.) 
 
 An officer who has been appointed to and is 
 fully invested with two distinct offices may 
 receive the compensation appropriated for each. 
 Sections 1763-1765, Revised Statutes, do not 
 apply to such a case. (16 Op. Atty. Gen., 7.) 
 
 The construction which has been given to 
 these sections, especially in the case of Con- 
 verse V. United States (above noted), is that 
 the intent and effect of them are to forbid offi- 
 cers holding one office from receiving compen- 
 sation for the discharge of duties belonging to 
 another, or additional pay, extra allowance, or 
 compensation for such other services or duties, 
 when they hold the commission of but a single 
 office, and by virtue of that office, or in addi- 
 tion to the duties thereof, have assigned to 
 them the duties of another office. According 
 to that decision, however, if an officer^ holds 
 two distinct commissions, and thus two distinct 
 offices, he may receive a salary for each. The 
 evil intended to be guarded against by these 
 statutes was not so much plurality of offices as 
 it was additional pay or compensation to an 
 officer holding but one office for performing 
 additional duties or the duties properly belong- 
 ing to another. If he actually holds two com- 
 missions, and does the duties of two distinct 
 offices, he may receive the salary which has 
 been appropriated to each office. Sections 
 
 1068 
 
Public Officers. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1765 
 
 1763-1765 are condensations from statutes 
 which were in existence at the time this deci- 
 sion was made and in conformity with it. (16 
 Op. Atty. Gen., 7; see also 12 Op. Atty. Gen., 
 459.) 
 
 Holding' two incompatible offices.- — It has 
 been regarded as settled since the decision of 
 the Supreme Court in United States v. Saun- 
 ders (above noted) that a person may hold two 
 offices and receive the salaries of both, not- 
 \vithstanding the provisions of the Revised 
 Statutes, pro\'ided they are distinct, each hav- 
 ing its o^vn duties and compensation, and are 
 not incompatible. In this case the offices are 
 distinct, and each has its own duties and 
 compensation. The only question presented, 
 therefore, is whether they are incompatible. 
 (Crosthwaite v. U. S., 30 Ct. Cls., 300.) 
 
 Two offices are incompatible when a per- 
 formance of the duties of the one will prevent 
 or conflict with a performance of the duties of 
 the other, or when the holding of the two offices 
 is contrary to the policy of the law. (Cros- 
 thwaite v. U. S., 30 Ct. Cls., 300.) 
 
 The duties of an examiner in the Department 
 of Justice and of special assistant attorneys ap- 
 pointed to assist in the prosecution of criminal 
 business are distinct and different and are not 
 incompatible. (Crosthwaite v. U. S., 30 Ct. 
 Cls., 300.) 
 
 Where two incompatible offices are held by 
 the same persoUj to which are attached differ- 
 ent salaries, he is not entitled to the compen- 
 sation of both, but is entitled to the larger of 
 the two. (Webster v. U. S., 28 Ct. Cls., 25; 
 Winchell v. U. S., 28 Ct. Cls., 30.) 
 
 The offices of engineer in the Navy and pay- 
 master are incompatible. (Webster v. U. S., 
 28 Ct. Cls., 25.) 
 
 A cadet engineer in the Navy is not entitled 
 to the salary of a draftsman in the Hydro- 
 graphic Office in addition to his own, though 
 he hold both offices. The office of draftsman 
 in the Hydrographic Office is incompatible 
 with that of cadet engineer. The Secretary of 
 the Navy may detail a cadet engineer for serv- 
 ice in the Hydrographic Office, but the detail 
 will not entitle the officer to additional pay. 
 (Winchell v. U. S., 28 Ct. Cls., 30.) 
 
 The duties or nonduties of a retired officer are 
 not incompatible with the duties of a chief 
 clerk in an executive department. The duties 
 of an officer beyond seas would be incompatible 
 with those of a retired officer liable to be called 
 at any time into active service. Congress have 
 recognized the distinction by providing that a 
 retired officer shall not receive his pay as such 
 while holding a diplomatic or consular office 
 beyond seas, but have left the right of a retired 
 officer to hold a civil office within the country 
 unimpaired. (Geddes d.U. S.,38Ct. Cls.,446.) 
 
 Incompatibility exists where the nature and 
 duty of the two offices are such as to render it 
 improper, from considerations of public policy, 
 for one incumbent to hold both. It does not 
 necessarily arise when the incumbent places 
 himself for the time being in a position where 
 it may be impossible for him to discharge the 
 duties of both offices. (22 Op. Atty. Gen., 238, 
 citing cases.) 
 
 A retired officer of the Army is not prohibited 
 by law from holding an office in an executive 
 
 department, nor from recei\'ing the salary 
 thereof in addition to his retired pay. (Col- 
 lins V. U. S., 15 Ct. Cls., 22. But see below as 
 to interpretation of act of July 31, 1894.) 
 
 An assistant medical referee, appointed under 
 Revised Statutes, section 4776, is not entitled, 
 in addition to his salary, to the fees of an ex- 
 amining surgeon, while 8er\'ing on an examin- 
 ing board under section 4775, Re\'i8ed Statutes, 
 as the duties of the two positions are not com- 
 patible; neither are they distinct offices. 
 Payment for both services is, therefore, pro- 
 hibited by Revised Statutes, sections 176.3-1765. 
 (Graham r. U. S., 29 Ct. Cls., 404.) 
 
 "Office," defined. — See note to Constitu- 
 tion, Article II, section 2, clause 2. 
 
 ' 'An office is a public station, or employment, 
 conferred by the appointment of government. 
 The term embraces the ideas of tenure, dura- 
 tion, emolument, and duties. * * * A 
 Government office is different from a Govern- 
 ment contract. The latter from its nature ia 
 necessarily limited in its duration and specific 
 in its objects. The terms agreed upon define 
 the rights and obligations of both parties, and 
 neither may depart from them without the 
 assent of the other." (U. S. v. Hartwell, 6 
 Wall., 385, 393; see also U. S. v. Germaine, 
 99 U. S., 508; Auffmordt v. Hedden, 137 U. S., 
 310,327.) 
 
 Civil surgeons appointed by the Commissioner 
 of Pensions, under section 4777 of the Re\'ised 
 Statutes, are not officers of the United States. 
 (U. S. V. Germaine, 99 U. S., 508.) 
 
 An acting paymaster, appointed by the 
 senior officer present, is not an officer. He is 
 not appointed as required by the Constitution, 
 takes no oath of office, anci gives no bond as 
 paymaster. He is appointed to discharge the 
 duties of an office which he does not hold, that 
 of paymaster, and he is therefore prohibited 
 from receiving compensation by sections 1763 
 and 1765, Revised Statutes. (Webster oj. U. S., 
 28 Ct. Cls., 25; see note to sees. 1381 and 1564, 
 R. S.) 
 
 A midshipman appointed as acting master 
 may hold such office in addition to his regular 
 naval rank, acting masters not forming part of 
 the regular and permanent Navy; and if ap- 
 pointed acting master, he is entitled to receive 
 the pay of that grade. (10 Op. Atty. Gen., 
 111.) 
 
 An internal-revenue collector is undoubtedly 
 an officer in a branch of the public service, 
 with a salary fixed by law. (Landram v. U. S., 
 16 Ct. Cls., 74.) 
 
 ''A deputy collector of internal revenue, not 
 being an employee of the Government (i. e., 
 not in privity with it so as to be able to main- 
 tain an action for his pay), does not come 
 within the provisions of the Revised Statutes, 
 sections 1763, 1764, prohibiting officers and 
 employees of the Government from receiving 
 dual or extra compensation." (Landram v. 
 U. S., 16 Ct. Cls., 74.) 
 
 A special deputy marshal is not a public 
 officer within the constitutional limitation as 
 to appointment. (17 Op. Atty. Gen., 684.) 
 
 The offices referred to in the above sections 
 of the Revised Statutes are officers under the 
 Government of the United States, and an office 
 under the government of the District of Colum- 
 
 1069 
 
Sec. 1765. 
 
 Ft. 2. REVISED STATUTES. 
 
 Public Oflacers. 
 
 bia is not included therein. (Donovan v. U. S., 
 21 Ct. ('Is., 120.) 
 
 The pajTuent of Navy and privateer pensions 
 under the orders of the Secretary of the Navy 
 does not constitute the person paying them an 
 officer of the Ignited States; and if the person 
 thus disbursing public money at the same time 
 holds the office of Navy agent he can not be 
 allowed any extra pay or emolument for mak- 
 ing such disbursement. (Browne v. U. S., 4 
 Fed. Cas. No. 2,0:?G.) 
 
 Interpretation of act approved July 31, 
 1894. — See note to section 1763, Re\'ised Stat- 
 utes, for text of said act. 
 
 (^nly officers of the United States were in the 
 mind of Congress in 1894 when enacting the 
 pro^'ision as to holding of two offices. (22 
 Op. Atty. Gen., 184, 188.) 
 
 It would seem that the word "office" in the 
 act of 1894 is to be presumed, in the absence of 
 indications to the contrar^', to embrace only 
 what are called constitutional officers, i. e., 
 those referred to in Article II, section 2, clause 
 2 of the Constitution. Under this construction, 
 a circuit judge of the I'nited States appointed 
 as a commissioner under a convention with 
 Great Britain is entitled to compensation ad- 
 ditional to that of his salary, as the commis- 
 sionership was estal)lished by treaty and was 
 not an office "estal)lished by law" within the 
 meaning of the Constitution. (22 Op. Attv. 
 Gen., 184.) 
 
 The legal definitions of a public office have 
 been many and various. The idea seems to 
 prevail that it is an employment to exercise 
 some delegated part of the sovereign power; 
 and the Supreme Court appears to attach 
 importance to the idea of "tenure, duration, 
 emolument, and duties, " and suggests that the 
 last should be continuing or permanent, not 
 occasional or temporary. (22 Op. Atty. Gen., 
 184.) 
 
 As for the popular language, it seems clear 
 that a person employed solely as a sworn judge 
 of a joint international commission would not 
 be spoken of as an officer of either country, 
 although, under a treaty requiring it, selected 
 and sent to his post bv one of them. (22 Op. 
 Atty. Gen., 184.) 
 
 A general appraiser detailed by the Secretary 
 of the Treasury, without additional compen- 
 sation, as "an expert to represent the United 
 States in the international commission for the 
 conversion of the present Chinese tariff into 
 specific rates, ' ' was not appointed to another 
 office under the Government or engaged in 
 other incompatible Government service. (24 
 Op. Atty. Gen., 12.) 
 
 An office is defined to be " a public charge or 
 employment, " and he who performs the duties 
 of the office is an officer. If employed on the 
 part of the United States, he is an officer of the 
 United States. Although an office is an 
 "employment," it does not follow that every 
 employment is an office. A man may certainly 
 be employed under a contract, express or 
 implied, to do an act or perform a service, 
 without becoming an officer. But if a duty 
 be a continuing one, it seems very difficult to 
 distinguish such a charge or employment from 
 an office, or the person who performs the 
 
 duties from an officer. (U. S. v. Maurice, 2 
 Brock., 9(J, quoted in 24 Op. Atty. Gen., 12.) 
 
 An appointment as special assistant to a 
 United States attorney to aid in a certain case 
 or set of cases is not an appointment to an 
 office within the meaning of the act of 1894, 
 as the essential element of "duration" is 
 lacking. The attornev for the Court of Private 
 Land Claims, receiving an annual salary of 
 $3,500, may, therefore, be allowed additional 
 compensation as special assistant to a United 
 States attorney for New Mexico. (2 Comp. 
 Dec, 271.) 
 
 A chief of di^dsion in the office of the Super- 
 vising Architect of the Treasur\^ at a salary of 
 more than $2, -500 per annum may be paid 
 compensation as a member of a commission 
 appointed under the act of February 20, 1895, 
 to select a site for a public building, service 
 upon such commission not invohdng the 
 holding of an office within the meaning of the 
 act of 1894. (2 Comp. Dec, 467.) 
 
 The Secretary of the Naw is not precluded 
 by the act of July 31, 1894, section 2, from 
 employing a retired officer under the act of 
 February 19, 1897, to supervise the completion 
 of certa.in tables of planets. The said act of 
 1897 read as follows: "For ser\-ices of a com- 
 petent mathematician to supervise the com- 
 pletion of the tables of the planets, two thousand 
 five hundred dollars, to be immediately avail- 
 able." This pro\'ision did not create an office, 
 nor did it contemplate any of the formalities in 
 the selection of such an employee as to dis- 
 tinguish his employment as an office. There 
 is no permanency to the term; there is no 
 requirement that the person employed shall 
 either take an official oath or receive a com- 
 mission. (21 Op. Atty. Gen., 507. See 2 
 Comp. Dec, 271, to the effect that "it does not 
 follow that everyone who takes the oath of 
 office is an officer"; in the latter case the 
 special assistant to the United States attorney 
 was required by law to take an oath.) 
 
 A retired officer of the Navy on active duty 
 in time of war is entitled to an additional salary 
 as meteorologist, to which position he was 
 appointed by the Secretary of the Navy vnXh. 
 salary payable from the appropriation "Na- 
 tional defense," which appropriation was to 
 be expended at the discretion of the President. 
 The action of the Secretary of the Navy was 
 the action of the President, and the power 
 granted the latter by the appropriation for the 
 national defense was intended to be the most 
 adequate and comprehensive, reposing the 
 largest discretion in the President, not subject 
 to review. (Hayden v. U. S., 38 Ct. Cls., 39.) 
 The chief clerk of the Department of Agri- 
 culture, at a salary of $2,500 a year, was ap- 
 pointed a captain of Infantry on the retired list 
 of the Army under authority of a special act of 
 Congress approved June 6, 1900 (31 Stat., 554): 
 Held, that his appointment as a retired officer 
 ha\dng been specially authorized by Congress 
 while he was holding an office with a salary 
 attached thereto of $2,500 per annum, the act 
 of July 31, 1894, did not apply; and that a 
 retired officer does not receive "compensation 
 as an officer or employee of the Government" 
 within the meaning of the following enactment 
 
 loro 
 
Public Oflicers. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 1765. 
 
 of March 3, 1885 (23 Stat., 356, sec. 2): "That 
 no part of the money herein or hereafter appro- 
 priated for the Department of Agriculture shall 
 be paid to any person, as additional salary or 
 compensation, receiving at the same time 
 other compensation as an officer or employee 
 of the Government." (Geddes v. U. S., 38 
 Ct. Cls., 428.) 
 
 There must be "compensation" received 
 before there can be "additional compensation " 
 prohibited ; as a matter of fact, the pay of a re- 
 tired officer is not compensation. (Geddes v. 
 tr. S., 38 Ct. Cls., 428.) The pay of a retired 
 officer appointed under a special act of Congress 
 "is not given as compensation for discharging 
 the duties of any office during the period for 
 which it is to be paid, but rather as a bounty, 
 and in the nature of a pension, for services to 
 his country previously performed. (Collins v. 
 U. S., 15 Ct. Cls., 22, 40.) The pay of an officer 
 on the retired list is "an honorable form of 
 pension." (Fletcher v. U. S., 26 Ct. Cls., 541, 
 563.) 
 
 It is well settled that an officer's reduced 
 retired pay is but an honorary form of pension 
 to be paid him when, having reached a certain 
 age, it is presumed that he is no longer well 
 fitted to render active service to the Govern- 
 ment. (Geddes v. U. S., 38 Ct. Cls., 428. 
 But see 11 Comp. Dec, 422, and 29 Op. Atty. 
 Gen., 397, 407, where this reasoning of the 
 Court of Claims is not concurred in.) 
 
 The i^rovision in the act of July 31, 1894, ex- 
 cepting from its operation retired officers of the 
 Army and Navy, in certain specified cases, 
 necessarily implies that such retired officers 
 are included in the remaining portion of the 
 enactment relating to offices having "annual 
 salary or compensation attached thereto." 
 (11 Comp. Dec, 422.) 
 
 A retired officer of the Army, whose retired 
 pay was $2,625 per annum, can not hold the 
 l)osition of clerk in the Treasury Department 
 at $1,400 per annum, as the holding of both 
 offices is forbidden by the act of 1894. (11 
 Comp. Dec, 422.) 
 
 A retired officer of the Marine Corps, whose 
 pay as such is $1,980 per annrnn, can accept the 
 jiosition of cashier in the subtreasury at Phila- 
 delphia, Pa., at a salary of $2,500 per annum, 
 and continue to receive the aforementioned 
 retii-ed pay. (Comp. Dec, Sept. 26, 1910, file 
 26254-539, case of Capt. John G. Muir, U. 
 S. M. C, following Geddes v. U. S., above 
 noted, and not citing 11 Comp. Dec, 422.^ 
 
 A retired officer of the Navy whose retired 
 pay amounts to $2,500 per annum is mthin the 
 prohibition of section 2 of the act of July 31, 
 1894, and is ineUgible to hold office as clerk of 
 class 3 under the United States Civil Service 
 Commission. (29 Op. Atty. Gen., 503.) 
 
 It is clear, both on principle and according 
 to the authorities, that a retired officer of the 
 Navy holds an office with a salary or annual 
 compensation attached, within the meaning of 
 the enactment of 1894, even if the express lan- 
 guage of the exception be not considered ; this 
 conclusion is rendered irresistible by the pi"o- 
 vision to that act excepting retired officers of 
 
 the Army or Navy in certain cases. (29 Op. 
 Atty. Gen., 503. :j 
 
 A notary public in the District of Columbia 
 is an officer of the Government within the 
 meaning of the act of July 31, 1894; and if he 
 accepts an ofiice, the salary of which is $2,500, 
 he is precluded by the statute from receiving 
 any compensation for services rendered as 
 notary to the Government. (Pack v. U. S., 
 41 Ct. Cls., 414.) 
 
 The position of clerk of class 3 under the 
 United States Civil Service Commission, the 
 appointment thereto being authorized by the 
 President, is an office within the meaning of the 
 act of 1894. (29 Op. Atty. Gen., 503.) 
 
 Where appointment to two certain offices is 
 claimed, and to so hold would involve a con- 
 struction that the appointment was invalid 
 under the act of 1894, the court must adopt 
 the view that a legal appointment was contem- 
 plated, and hence that the claimant was not 
 appointed to two offices. (McMath v. U. S., 
 51 Ct. Cls., 356; affinned, 248 U. S., 151.) 
 
 A retired naval officer whose compensation 
 as such amoimts to $2,500 per annum is ineli- 
 gible to appointment as a commercial attache 
 under the provisions of the act of July 16, 1914 
 (38 Stat., 500), making appropriations for the 
 legislative, executive, and judicial expenses 
 of the Government. (30 Op. Atty. Gen., 298.) 
 
 Additional compensation allowed med- 
 ical officer of the Navy. — A medical officer 
 in the Na\'y is entitled to compensation from 
 appropriations under the control of the Depart- 
 ment of Justice for professional services ren- 
 dered by him to United States prisoners in a 
 United States jail. (Comp. Dec, May 15, 
 1912, 45 MS. Comp. Dec, 300, following 18 
 Comp. Dec, 156; see note to sec. 1368, R. S., 
 under "Medical attendance to persons not in 
 the Navy.") 
 
 Additional compensation not allowed 
 naval officer detailed to War Depart- 
 ment. — Where a naval constructor was de- 
 tailed by the Secretary of the Na\y to perform 
 duty under the War Department, in inspecting 
 a vessel chartered as an Army transport, the 
 officer is not burdened with services not inci- 
 dent to his office; the duties required of him 
 were of the general nature performed by him 
 in the Navy. Additional compensation for 
 such inspection service is prohibited by sec- 
 tion 1765, Revised Statutes. (Stocker v. U. 
 S., 39 Ct. Cls., 300; see notes to sees. 1404 and 
 1437, R. S.) 
 
 For other cases, see note to section 1440, 
 Revised Statutes, as to appointment of Navy 
 officers in the diplomatic or consular service 
 section 1860, Revised Statutes, as to naval per- 
 sonnel holding civil offices in territories; act 
 June 10, 1896 (29 Stat . , 361 ), as to officers of the 
 Navy holding employment with private con- 
 tractors; sections 170 and 182, Re\'ised Stat- 
 utes, as to clerks and officers in executive 
 departments; and act March 4, 1909, sec 113, 
 35 Stat., 1109, as to officers acting as attorneys 
 for claimants, etc, in matters in which the 
 United States is interested. 
 
 1071 
 
Sec. 1778. 
 
 PL 2. REVISED STATUTES. 
 
 Public Officers. 
 
 and to turn the balances into the Treasury. 
 They would naturally be in "arrears" and be 
 in a position to have a ' ' balance due " found by 
 the accounting officers. (26 Op. Attv. Gen., 
 77.) 
 
 The clause, "until he has accounted for and 
 paid into the Treasury all sums for which he 
 may be liable," is conclusive upon the point. 
 This language is not appropriate to mere in- 
 debtedness. (26 Op. Atty. Gen., 77.) 
 
 The provision that suit shall be commenced 
 against the delinquent "and his sureties" 
 indicates that Congress was not regarding mere 
 debtors but the class of persons who had sure- 
 ties for the performance of their contracts or 
 their other duties, chiefly, of course, the re- 
 ceipt and disbursement of public moneys. 
 (26 Op. Atty. Gen., 77.) 
 
 For other cases, see note to section 236, 
 Revised Statutes. 
 
 Sec. 1766. [Officer in arrears ; withholding pay.] No money shall be paid 
 to any person for his compensation who is in arrears to the United States, until 
 he has accounted for and paid into the Treasury all sums for which he may be 
 liable. In all cases where the pay or salary of any person is withheld in pur- 
 suance of this section, the accounting officers of the Treasury, if required to do 
 so by the party, his agent or attorney, shall report forthwith to the Solicitor of 
 the Treasury the balance due; and the Sohcitor shall, within sixty days 
 thereafter, order suit to be commenced against such delinquent and his sure- 
 ties.— (25 Jan., 1828, c. 2, v. 4, p. 246. 20 May, 1836, c. 77, v. 5, p. 31.) 
 
 Persons to whom applicable. — Section 
 1766, Revised Statutes, does not apply to an 
 ordinary clerk, who is a judgment debtor of the 
 United States under judgment for a debt 
 gro'uing out of transactions wholly foreign to 
 his employment, and having nothing to do 
 with any advance of public money or any 
 accounting therefor. In such case this section 
 does not require the head of the department to 
 ^vithhold the salary of the clerk. Whether or 
 not the Government has the right, on general 
 principles, to do so, independently of section 
 1766, not decided. (26 Op. Atty. Gen., 77; 
 see note to sec. 236, R. S.) 
 
 This section does not apply to mere indebted- 
 ness, but clearly applies to one who has received 
 Government moneys to be disbursed or covered 
 into the Treasury; to persons who are in a rela- 
 tion of trust to the Government a,nd have in 
 their hands sums or balances of public funds 
 for which they are bound to render accounts 
 
 Sec. 1773. [Commissions.] The President is authorized to make out and 
 deliver, after the adjournment of the Senate, commissions for all officers whose 
 appointments have been advised and consented to by the Senate. — (2 Mar., 
 1867, c. 154, s. 6, v. 14, p. 431.) 
 
 The commissions of all officers under the direc- shall not be affixed to any such commis- 
 
 tion and control of the Secretary of the sion before the same shall have been signed 
 
 Navy shall be made out and recorded in by the President of the United States, 
 
 the Navy Department, and the depart- (Act Mar. 28, 1896, 29 Stat., 75.) 
 
 ment seal affixed thereto, any laws to the See note to Constitution, Article II, section 3, 
 
 contrary notwithstanding; but such seal , under "II. Duty to commission officers." 
 
 Sec. 1774. [Recess appointments; accounting officers notified.] Whenever 
 the President, witliout the advice and consent of the Senate, designates, author- 
 izes, or employs any person to perform the duties of any office, he shall forth- 
 with notify the Secretary of the Treasury thereof, and the Secretary of the 
 Treasury shall thereupon communicate such notice, to all the proper accounting 
 and disbursing officers of his Department. — (2 Mar., 1867, c. 154, s. 8, v. 14, 
 
 p. 431.) 
 
 Sec. 1778. [Oaths or acknowledgments ; before whom taken.] In all cases in 
 which, under tlie laws of the United States, oaths or aclaiowledgments may 
 now be taken or made before any justice of tlie peace of any State or Territory, 
 or in the District of Columbia, they may hereafter be also taken or made by 
 or before any notary public duly appointed in any State, district, or Territory, 
 or any of the commissioners of the circuit courts, and, when certified under the 
 hand and official seal of such notary or commissioner, shall have the same 
 force and effect as if taken or made by or before such justice of the peace. — (16 
 
 1072 
 
Public Officers. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 1784. 
 
 Sept., 1850, c. 52, v. 9, p. 458. 29 July, 1854, c. 159, s. 1, v. 10, p. 315. 22 
 June, 1874, c. 390, s. 20, v. 18, p. 186. 15 Aug., 1876, c. 304, v. 19, p. 206.) 
 
 Act.t)f May 28, 1896, section 19 (29 Stat., 184), 
 amended by act March 2, 1901 (31 Stat., 
 956), pro\'ided for the appointment of 
 United States commissioners by the district 
 court of each judicial district, who shall 
 have the same powers and perform the 
 same duties as commissioners of the cir- 
 cuit courts. 
 
 Act of JMarch 3, 1911, section 289 (36 Stat., 
 1167), abolished circuit courts. 
 
 As to acknowledgment of deeds in Guam and 
 Samoa, see act of June 28, 1906 (34 Stat., 
 552). 
 
 As to administration of oaths to expense ac- 
 counts by chief clerks of the various exec- 
 utive departments or clerks designated by 
 them for the purpose, see act of August 24, 
 1912, section 8 (37_Stat., 487). 
 
 See section 183, Revised Statutes, and note 
 thereto. 
 
 Sec. 1779. [Newspapers, books, etc. ; restriction upon purchase.] No execu- 
 tive officer, other than the heads of Departments, shall apply more than thirty 
 dollars, annually, out of the contingent fund under his control, to pay for 
 newspapers, pamplilets, periodicals, or other books or prints not necessary for 
 the business of his office. — (3 Mar., 1839, c. 82, s. 3, v. 5, p. 349.) 
 
 less specifically authorized by the appro- 
 priation. (Act Mar. 15, 1898, sec. 3, 30 
 Stat., 316.) 
 
 See sections 192 and 193, Revised Statutes, and 
 note thereto. 
 
 Expenditures for law books, books of refer- 
 ence, and periodicals are prohibited, un- 
 
 Sec. 1784. [Contributions, presents, etc., to superiors.] No officer, clerk, or 
 employe in the United States Government employ shall at any time solicit con- 
 tributions from other officers, clerks, or employes in the Government service 
 for a gift or present to those in a superior official position ; nor shall any such 
 officials or clerical superiors receive any gift or present offered or presented to 
 them as a contribution from persons in Government employ receiving a less 
 salary than themselves; nor shall any officer or clerk make any donation as a 
 gift or present to any official superior. Every person who violates this section 
 shall be summarily discharged from the Government employ. — (1 Feb., 1870, 
 c. 11, V. 16, p. 63.) 
 
 "Superior official" construed. — It is con- 
 sidered that an officer superior in rank is a su- 
 perior official within the intent of the section 
 1784, Revised Statutes, and the Navy Regu- 
 lations on the same subject. Accordingly, 
 officers of the Corps of Civil Engineers in the 
 
 Navy could not legally present a testimonial 
 to another member of that corps of higher rank 
 in the Navy, notwithstanding that the latter's 
 duty did not place him over and in charge of 
 those contributing. (File 26806-33, Nov. 9, 
 1909; Naval Dig., 1916, pp. 621, 622.) 
 
 1073 
 
TITLE XXIII. 
 
 THE TERRITOEIES. 
 
 Sec. 1860. [Voting and holding office in the Territories.] * * * Third. 
 No officer, soldier, seaman, mariner, or other person in the Army or 
 Navy, or attached to the troops in the service of the United States, shall be 
 allowed to vote in any Territory, by reason of being on service therein, unless 
 such Territory is, and has been for the period of six months, his permanent 
 domicile.— (25 Jan., 1867, c. 15, v. 14, p. 379.) 
 
 Fourth. No person belonging to the Army or Navy shall be elected to or 
 hold any civil office or appointment in any Territory, except officers of the 
 Army on the retired list. 
 
 The fourth clause of this section was expressly- 
 amended and reenacted to read as above 
 by act of March 3, 1883(22 Stat., 567), the 
 amendment consisting in the addition, at 
 the end of said clause, of the words "except 
 officers of the Army on the retired list." 
 The first and second clauses of this section 
 are omitted, as having no application to 
 the Navy. 
 See sections 1440, 1763-1765, Revised Statutes, 
 and laws noted thereunder, as to restric- 
 tions upon civil employment by officers 
 of the Navy. 
 Virgin Islands. — The Virgin Islands of the 
 United States are neither organized nor incor- 
 porated territory, and therefore section 1860, 
 Re\ised Statutes, does not preclude the Presi- 
 dent from nominating a naval officer for the 
 position of judge therein. (31 Op. Atty. Gen., 
 118.) 
 
 Section 1860 applies only to organized terri- 
 tories, and is not applicable to a mere possession, 
 such as the Virgin Islands, for which there has 
 been no organic act. (31 Op. Atty. Gen., 118. 
 Prior to this opinion the act of Mar. 3, 19l7, 39 
 Stat., 1132, had been enacted, establishing a 
 temporary government for the Virgin Islands.) 
 Philippine Islands. — A mere contribution 
 by the Philippine Government to the per- 
 formance of certain military functions, and in- 
 trusting the funds to an officer of the United 
 States Army, who is held to military responsi- 
 bility therefor by court-martial, does not make 
 that officer a civil officer of the Philippine Gov- 
 ernment and amenable to trial in the civil 
 courts for falsification of his accounts as a public 
 official. (Carrington v. U. S., 208 U. S., 1.) 
 
 An office commonly requires something more 
 than a single transitory act to call it into being. 
 (Carrington v. U. S., 208 U. S., 1.) 
 
 The fact that an officer of the United States 
 Army, intrusted with money by the Philippine 
 Government to be expended in connection with 
 his military command, signs his account, "Dis- 
 bursing Officer," instead of by his military 
 title, does not make him a civil officer of the 
 Philippine Government. (Carrington v. U. S., 
 208 U. S., 1.) 
 
 Porto Rico. — This section applies to Porto 
 Rico, which has been held to be a "territorv" 
 under its terms. (File 9736-18, June 25, 1910, 
 citing file 1831-8, Apr. 18, 1917: 5381-1, Aug. 
 30, 1907; 11 Comp. Dec, 336, 339.) 
 
 A naval surgeon can not be appointed to the 
 position of health officer of Culebra, Porto Rico. 
 (File 1831-8, Apr. 18, 1907.) 
 
 An officer of the Marine Corps can not accept 
 an appointment as a member of the military 
 staff of the Governor of Porto Rico. (File 
 •5381-], Aug. 30, 1907.) 
 
 Hawaiian Islands. — This section has been 
 held inapplicable to the Hawaiian Islands. 
 (File 9736-18, June 25, 1910, citing Matter of 
 Loucks, 13 Hawaii, 17.) 
 
 Mayor of city. — Section 1860 does not pro- 
 hibit a retired officer of the Navy from accept- 
 ing an office as mayor of the city in one of the 
 States if duly elected thereto; in such case, 
 however, a retired officer would be subject to 
 recall to naval duty if the exigencies of the 
 service should require in time of war. (File 
 5650-00, Sept. 21, 1900.) 
 
 1075 
 
TITLE XXV. 
 
 CITIZENSHIP. 
 
 Sec. 1996. [Rights as citizens forfeited for desertion, &c.] All persons 
 who deserted the military or naval service of the United States and did not 
 return thereto or report themselves to a provost-marshal within sixty days 
 after the issuance of the proclamation by the President, dated the 11th day of 
 March, 1865, are deemed to have voluntarily relinquished and forfeited their 
 rights of citizenship, as well as their right to become citizens; and such de- 
 serters shall be forever incapable of holding any ofRce of trust or profit under 
 the United States, or of exercising any rights of citizens thereof. — (3 Mar., 1865, 
 c. 79, s. 21, V. 13, p. 490.) 
 
 See section 1998, Revised Statutes, and note thereto. 
 
 Sec. 1998. [Desertion in time of war; penalties and forfeitures.] That 
 every person who hereafter deserts the mihtary or naval service of the United 
 States, or who, being duly enrolled, departs the jurisdiction of the district in 
 which he is enrolled, or goes beyond the limits of the United States, with intent 
 to avoid any draft into the military or naval service, lawfully ordered, shall be 
 liable to all the penalties and forfeitures of section nineteen hundred and ninety- 
 six of the Revised Statutes of the United States : Provided, That the provisions 
 of this section and said section nineteen hundred and ninety-six shall not apply 
 to any person hereafter deserting the military or naval service of the United 
 States in time of peace: And provided further, That the loss of rights of citizen- 
 ship heretofore imposed by law upon deserters from the mihtary or naval serv- 
 ice may be mitigated or remitted by the President where the offense was com- 
 mitted in time of peace and where the exercise of such clemency will not be 
 prejudicial to the public interests: And provided further, That the provisions of 
 section eleven hundred and eighteen of the Revised Statutes of the United 
 States that no deserter from the military service of the United States shall be 
 enlisted or mustered into the military service, and the provisions of section two 
 of the Act of Congress approved August first, eighteen hundred and ninety-four, 
 entitled 'An Act to regulate enlistments in the Army of the United States,' shall 
 not be construed to preclude the reenlistment or muster into the Army of any 
 person who has deserted, or may hereafter desert, from the military service of 
 the United States in time of peace, or of any soldier whose service during his 
 last preceding term of enlistment has not been honest and faithful, whenever 
 the reenlistment or muster into the military service of such person or soldier 
 shall, in view of the good conduct of such person or soldier subsequent to such 
 desertion or service, be authorized by the Secretary of War. 
 
 1077 
 
Sec. 1998. 
 
 Ft. 2. REVISED STATUTES. 
 
 Citizenship. 
 
 This section was expressly amended and reen- 
 acted to read as above by act of Au,2;ust 
 22, 1912 (37 Stat., 356), which also re- 
 enacted \nth amendments sections 1420 
 and 1621, article 19, of the Revised Stat- 
 utes, relating to the enlistment of deserters 
 in the Navy. As originally enacted, sec- 
 tions 1998 read as follows: "Every person 
 who hereafter deserts the military or naval 
 Ber\ice of the United States, or who. being 
 duly enrolled, departs the jurisdiction of 
 the district in which he is enrolled, or goes 
 beyond the limits of the United States, 
 \vith intent to avoid any draft into the 
 military or naval service, lawfully ordered, 
 shall be liable to all the penalties and for- 
 feitures of section nineteen hundred and 
 ninety-six."— (3 Mar., 1865, c. 79, s. 21, v. 
 13, p. 490.) 
 Effect of pardon. — Section 1998, Rmdsed 
 Statutes, as amended by the act of August 22, 
 1912, prescribes disabilities, not merely inci- 
 
 dental to (jualifications for serWce in the Navy, 
 but in effect and by express avowal constituting 
 punishment for offenses, which, as such, 
 would of course be mped out by an uncondi- 
 tional pardon. (31 Op. Atty. Gen., 225; for 
 other cases, see note to Constitution, Art. II, 
 sec. 2, clause 1, and see note to sec. 1441, R. S.) 
 
 Penalties attach only upon conviction. — 
 Section 1998, Revised Statutes, is not void as a 
 bill of attainder, because it contemplates trial 
 by court-martial to enforce this penalty, as well 
 as the other penalties for desertion. (Gotcheus 
 r. Matheson, 58 Barb. (N. Y.), 153,61 N. Y., 
 425; see also State i;. Symonds, 57 Me., 148; Holt 
 V. Holt, 59 Me., 464- Severance v. Healy, 50 N. 
 H., 448; Huber v. Reily, 53 Pa. St., 112; Mc- 
 Cafferty?;. Guyer, 59 Pa. St., 110; Kurtz v. 
 Moffitt, 115 U. S., 501.) 
 
 For other cases, see note to Constitution, 
 Article I, section 9, clause 3. See also note to 
 to Constitution, Article I, section 8, clause 4'. 
 
 1078 
 
TITLE XXVI. 
 
 THE ELECTIVE FRANCHISE. 
 
 Sec. 2003. [Interference with elections; Army and Navy Officers.] No 
 officer of the Army or Navy of the United States shall prescribe or fix, or attempt 
 to prescribe or fix, by proclamation, order, or otherwise, the qualifications of 
 voters in any State, or in any manner interfere with the freedom of any elec- 
 tion in any State, or with the exercise of the free right of suffrage in any State. — 
 (25 Feb., 1865, c. 52, s. 1, v. 13, p. 437.) 
 
 See Criminal Code, act March 4, 1909, sections 22-26 (35 Stat., 1092, 1093). 
 
 1079 
 
TITLE XXIX. 
 
 IMMIGRATION. 
 
 Sec. 2163. [Examination of vessels.] The President is empowered, in such 
 way and at such time as he may judge proper, to direct the vessels of the United 
 States, and the masters and commanders thereof, to examine all vessels navi- 
 gated or owned in whole or in part by citizens of the United States, and regis- 
 tered, enrolled, or licensed under the laws thereof, whenever, in the judgment 
 of such master or commanding officer, reasonable cause exists to believe that 
 such vessel has on board any subjects of China, Japan, or other oriental country, 
 known as "coolies;" and, upon sufficient proof that such vessel is employed in 
 violation of the preceding provisions, to cause her to be carried, with her officers 
 and crew, into any port or district within the United States, and delivered to 
 the marshal of such district, to be held and disposed of according to law. — (19 
 Feb., 1862, c. 27, s. 6, v. 12, p. 341.) 
 
 1081 
 
TITLE XXXII. 
 
 THE PUBLIC LANDS. 
 
 Sec. 
 2293. Affidavits; naval personnel; before whom 
 
 made. 
 2300. Minors, privileges of. 
 
 2304. Soldiers' and sailors' homestead. 
 
 2305. Credit for time in military and naval 
 
 service. 
 
 2308. Service in Navy equivalent to residence. 
 
 2309. Entry by agent; requirements. 
 2393. Military or other reservations. 
 
 Sec. 
 2458. 
 2459. 
 
 2460. 
 2461. 
 
 2462. 
 2463. 
 
 Lands for supplying timber to the Navy. 
 
 Selection of live-oak and red-cedar 
 tracts. 
 
 Protection of timber in Florida. 
 
 Cutting or destroying timber reserved for 
 Navy. 
 
 Forfeiture of vessels. 
 
 Clearance of vessels; timber cut by con- 
 sent of Navy Department. 
 
 Sec. 2293. [Affidavits; naval personnel; before whom made.] In case of 
 any person desirous of availing himself of the benefits of this cliapter; but 
 who, by reason of actual service in the military or naval service of the United 
 States, is unable to do the personal preliminary acts at the district land-office 
 which the preceding sections require; and whose family, or some member 
 thereof, is residing on the land which he desires to enter, and upon which a 
 bona-fide improvement and settlement have been made, such person may make 
 the affidavit required by law before the officer commanding in the branch of 
 the service in which the party is engaged, which affidavit shall be as binding 
 in law, and with like penalties, as if taken before the register or receiver; and 
 upon such affidavit being filed with the register by the wife or other representa- 
 tive of the party, the same shall become effective from the date of such filing, 
 provided the application and affidavit are accompanied by the fee and commis- 
 sions as required by law. — (21 Mar., 1864, c. 38, s. 4, v. 13, p. 35.) 
 
 The words "this chapter" in the above section 
 refer to chapter 5, "Homesteads," of Title 
 XXXII, "The Public Lands." 
 
 Amendment to this section was made by act of 
 October 6, 1917 (40 Stat., 391), as follows: 
 "That during the continuance of the pres- 
 ent war with Germany, and until his dis- 
 charge from ^er^dce, any man serving in the 
 armed forces of the United States, who, 
 prior to the beginning of his services was a 
 settler, an applicant, or entryman under the 
 land laws of the United States, or who has, 
 prior to enlistment, filed a contest, with the 
 view of exercising preference right of entry 
 therefor, may make any affidavit required 
 by law or regulation of the department, 
 affecting such application, entry, or con- 
 
 test, or necessary to the making of entry in 
 the case of the successful termination of 
 such contest awarding him preference right 
 of entry, before his commanding officer as 
 provided in section twenty-two hundred 
 and ninety-three of the Revised Statutes of 
 the United States, which affidavits shall be 
 as binding in law and with like penalties as 
 if taken before the Register of the United 
 States Land Office." 
 Amendment to this section was also made by the 
 Soldiers' and Sailors' Civil Relief Act of 
 March 8, 1918, section 501 (40 Stat., 448), 
 which act, however, by section 603 thereof 
 r40 Stat., 449) was to remain in force only 
 until the termination of the war and for six 
 months thereafter. 
 
 Sec. 2300. [Minors, privileges of.] No person who has served, or may here- 
 after serve, for a period not less than fourteen days in the Army or Navy of the 
 United States, either regular or volunteer, under the laws thereof, during the 
 existence of an actual war, domestic or foreign, shall be deprived of the benefits 
 of this chapter on account of not having attained the age of twenty-one years. — 
 (20 May, 1862, c. 75, s. 6, v. 12, p. 393.) 
 
 54641°— 22- 
 
 -69 
 
 1083 
 
Sec. 2304. 
 
 PL 2. REVISED STATUTES. 
 
 Public Lands. 
 
 possess under said laws: Provided, That any 
 requirements as to establishment of resi- 
 dence within a limited time shall be sus- 
 pended as to entry by such person until six 
 months after his dipcharire from military 
 service: Provided further, That applications 
 for entry may be verified before any officer 
 in the United States, or any foreiiijn coun- 
 try, authorized to administer oaths by the 
 laws of the State or Territory in which the 
 land may be situated." 
 
 The words "this chapter" in the above section 
 
 refer to chapter 5, "Homesteads," of Title 
 
 XXXI 1, '-The Public Lands." 
 By act of Aus;ust 31, ]<)18, section 8 (40 Stat., 
 
 957), it was provided "That any person, 
 
 under the ?ige of twenty-one, who has 
 
 served or shall hereafter serve in the Army 
 
 of the United States during the present 
 
 emergency, shall be entitled to the same 
 
 rights under the homestead and other land 
 
 and mineral entry laws, general or special, 
 
 as those over twenty-one years of age now 
 
 Sec. 2304. [Soldiers' and sailors' homesteads.] Every private soldier and 
 officer who has served in the Army of the United States during the recent rebel- 
 lion for ninety days, and who was honorably discharged and has remained loyal 
 to the Government, including the troops mustered into the service of the United 
 States by virtue of the third section of an act approved February thirteenth, 
 eighteen hundred and sixty-two, and every seaman, marine, and officer who has 
 served in the Navy of the United States or in the Marine Corps during the rebel- 
 lion for ninety days, and who was honorably discharged and has remained loyal 
 to the Government, and every private soldier and officer who has served in the 
 Army of the United States during the Spanish war, or who has served, is serv- 
 ing, or shall have served in the said Army during the suppression of the in- 
 surrection in the Philippines for ninety days, and who was or shall be honorably 
 discharged; and every seaman, marine, and officer who has served in the Navy 
 of the United States or in the Marine Corps during the Spanish war, or who has 
 served, is serving, or shall have served in the said forces during the suppression 
 of the insurrection in the Phihppines for ninety days, and who was or shall be 
 honorably discharged, shall, on compliance with the provisions of this chapter, 
 as hereinafter modified, be entitled to enter upon and receive patents for a 
 quantity of public lands not exceeding one hundred and sixty acres, or one 
 quarter section, to be taken in compact form, according to legal subdivisions, 
 including the alternate reserved sections of public lands along the line of any 
 railroad or other public work not otherwise reserved or appropriated, and other 
 lands subject to entry under the homestead laws of the United States; but such 
 homestead settler shall be allowed six months after locating his homestead and 
 filing his declaratory statement within which to make his entry and commence 
 his settlement and improvement. 
 
 This section was expressly amended and re- 
 enacted to read as above by act of March 1, 
 1901 (31 Stat., 847). 
 
 By act of February 25, 1919 (40 Stat., 1161), it 
 was provided "That subject to the condi- 
 tions therein expressed, as to length of 
 service and honorable discharge, the pro- 
 visions of sections twenty-three hundred 
 and four and twenty-three hundred and 
 five, Revised Statutes of the United States, 
 shall be applicable in all cases of military 
 and naval service rendered in connection 
 with the Mexican border operations or 
 during the war with Germany and its allies 
 as defined by public resolution numbered 
 thirty-two, approved August twenty-ninth, 
 nineteen hundred and sixteen (Thirty- 
 ninth Statutes at Large, page six hundred 
 and seventy-one), and the Act approved 
 July twenty-eighth, nineteen hundred and 
 
 1084 
 
 seventeen (Fortieth Statutes at Large, 
 page two hundred and forty-eight. " (See 
 note to sec. 2308, R. S.) 
 By joint resolution of February 14, 1920 (41 
 Stat., 434-4.35), it was provided "That 
 hereafter, for the period of two years fol- 
 lovving the passage of this Act, bn the open- 
 ing of public or Indian lands to entry, or 
 the restoration to entry of public lands 
 theretofore withdrawn from entry, such 
 opening or restoration shall, in the order 
 therefor, provide for a period of not less 
 than sixty days before the general opening 
 of such lands to disposal in which officers, 
 soldiers, sailors, or marines who have served 
 in the Army or Navy of the United States 
 in the war with Germany and been honor- 
 ably separated or discharged therefrom or 
 placed in the Regular Army or Naval 
 Reserve shall have a preferred right of 
 
Public Lands. Pt. 2. REVISED STATUTES. Sec. 2308. 
 
 entry under the homestead or desert land 
 laws, if qualified thereunder, except as 
 against prior existing valid settlement rights 
 and as against preference rights conferred 
 by existing laws or equitable claims sub- 
 ject to allowance and confirmation: Pro- 
 vided, That the rights and benefits con- 
 ferred by this Act shall not extend to any 
 person who, having been drafted for serv- 
 
 ice under the provisions of the Selective 
 Service Act, shall have refused to render 
 such service or to wear the uniform of such 
 service of the United States. 
 "Sec 2. That the Secretary of the Interior is 
 hereby authorized to make any and all 
 regulations necessary to carry into full 
 force and effect the provisions hereof. " 
 
 Sec. 2305. [Credit for time in military and naval service.] The time which 
 the homestead settler has served in the Army, Navy, or Marine Corps shall be 
 deducted from the time heretofore required to perfect title, or if discharged on 
 account of wounds received or disability incurred in the line of duty, then the 
 term of enlistment shall be deducted from the time heretofore required to per- 
 fect title, without reference to the length of time he may have served; but no 
 patent shall issue to any homestead settler who has not resided upon, improved, 
 and cultivated his homestead for a period of at least one year after he shall have 
 commenced his improvements: Provided, That in every case in which a settler 
 on the public land of the United States under the homestead laws died while 
 actually engaged in the Army, Navy, or Marine Corps of the United States as 
 private soldier, officer, seamen, or marine, during the war with Spain or the 
 Philippine insurrection, his widow, if unmarried, or in the case of her death 
 or marriage, then his minor orphan children or his or their legal representatives, 
 may proceed forthwith to make final proof upon the land so held by the de- 
 ceased soldier and settler, and that the death of such soldier while so engaged in 
 the service of the United States shall in the administration of the homestead 
 laws, be construed to be equivalent to a performance of all requirements as to 
 residence and cultivation for the full period of five years, and shall entitle his 
 widow, if unmarried, or in case of her death or marriage, then his minor orphan 
 children or his or their legal representatives, to make final proof upon and re- 
 ceive Government patent for said land; and that upon proof produced to the 
 officers of the proper local land office by the widow, if unmarried, or in case of 
 her death or marriage, then his minor orphan children or his or their legal repre- 
 sentatives, that the applicant for patent is the widow, if unmarried, or in case of 
 her death or marriage, his orphan children or his or their legal representatives, 
 and that such soldier, sailor, or marine died while in the service of the United 
 States as hereinbefore described, the patent for such land shall issue. 
 
 This section was expressly amended and re- See note to section 2304, Revised Statutes, 
 enacted to read as above by act of March 1, 
 1901 (31 Stat., 847). 
 
 Sec. 2308. [Service in Navy equivalent to residence.] Where a party at the 
 date of his entry of a tract of land under the homestead laws, or subsequently 
 thereto, was actually enlisted and employed in the Army or Navy of the United 
 States, his services therein shall, in the administration of such homestead laws, 
 be construed to be equivalent, to all intents and purposes, to a residence for the 
 same length of time upon the tract so entered. And if his entry has been 
 canceled by reason of his absence from such tract while in the military or naval 
 service of the United States, and such tract has not been disposed of, his entry 
 shall be restored; but if such tract has been disposed of, the party may enter 
 another tract subject to entry under the homestead laws, :nd his right to a 
 
 1085 
 
Sec. 2309. 
 
 Pt. 2. REVISED STATUTES. 
 
 Public Lands. 
 
 patent therefor may be determined by the proofs touching his residence and 
 cultivation of the first tract and liis absence therefrom in such service. — (8 June, 
 1872, c. 338, s. 4, v. 17, p. 333.) 
 
 Act June 16, 1S98 (30 Stat., 473).— "That in 
 every case in "which a settler on the public 
 land of the Ignited States under the homestead 
 laws enlists or is actually en«;aged in the Army, 
 Navy, or Marine Corps of the United States as 
 private soldier, officer, seaman, or marine, dur- 
 ing the existing war with Spain, or during any 
 other war in which the United States may be 
 engaged, his services therein shall, in the 
 administration of the homestead laws, be con- 
 strued to be equivalent to all intents and pur- 
 poses to residence and cultivation for the same 
 length of time upon the tract entered or settled 
 upon ; and hereafter no contest shall be initiated 
 on the ground of abandonment, nor allegation 
 of abandonment sustained against any such 
 settler, unless it shall be alleged in the prelimi- 
 nary affida\T.t or affidavits of contest, and proved 
 at the hearing in cases hereafter initiated, that 
 the settler's alleged absence from the land was 
 not due to his emplovment in such service: 
 Provided, That if such settler shall be dis- 
 charged on account of wounds received or 
 disability incurred in the line of duty, then the 
 term of his enlistment shall be deducted from 
 the required length of residence ^\'ithout refer- 
 ence to the time of actual service: Provided 
 Jurther, That no patent shall issue to any home- 
 stead settler who has not resided upon, im- 
 proved, and cultivated his homestead for a 
 period of at least one year after he shall haAe 
 commenced his improvements." 
 
 Joint resolution, August 29, 1916 (39 Stat., 
 G71), provided that the above-quoted act of 
 June IG, 1898 "shall be applicable in all cases 
 of military service rendered in connection with 
 operations in Mexico, or along the borders 
 thereof, or in mobilization camps elsewhere, 
 whether such service be in the military or naval 
 organization of the United States or the 
 National Guard of the several States now or 
 hereafter in the service of the United States." 
 (See act Feb. 25, 1919, quoted under sec. 2304, 
 R. S.) 
 
 Act July 28, 1917, section 1 (40 Stat., 248).— 
 "That any settler upon the public lands of the 
 United States; or any entry man whose applica- 
 tion has been allowed; or any person who has 
 made application for public lands which there- 
 after may be allowed imder the homestead 
 laws, who, after such settlement, entry, or 
 application, enlists or is actually engaged in 
 the military or naval service of the United 
 States as a private soldier, officer, seaman, 
 marine, national guardsman, or member of any 
 other organization for offense or defense author- 
 ized by Congress during any war in which the 
 United States may be engaged, shall, in the 
 administration of the homestead laws, have his 
 services therein construed to be equivalent to ■ 
 all intents and purposes to residence and culti- 
 
 Sec. 2309. [Entry by agent ; requirements.] Every soldier, sailor, marine, 
 officer, or other person coming within the provisions of section twenty-three 
 hundred and four, may, as well by an agent as in person, enter upon such home- 
 
 vation for the same length of time upon the 
 tract entered or settled upon; and hereafter no 
 contest shall be initiated on the ground of 
 abandonment, nor allegation of abandonment 
 sustained against any such settler, entryman, or 
 person unless it shall be alleged in the prelimi- 
 nary affidavit or affidavits of contest and proved 
 at the hearing in cases hereinafter initiated that 
 the alleged absence from the land was not due 
 to his employment in such military or naval 
 service ; that if he shall be discharged on account 
 of wounds received or disability incurred in the 
 line of duty, then the term of his enlistment 
 shall be deducted from the required length of 
 residence, without reference to the time of 
 actual service: Provided, That no patent shall 
 issue to any homestead settler who has not 
 resided upon, improved, and cultivated his 
 homestead for a period of at least one yeai'." 
 (See act Feb. 25, 1919, quoted under sec. 2304, 
 R. S.) 
 
 The same act, section 2, provides as follows: 
 ' ' That any settler upon the public lands of the 
 United States; or any entryman whose appli- 
 cation has been allowed ; or any person who has 
 made application for public lands which there- 
 after may be allowed imder the homestead 
 laws, who dies while actually engaged in the 
 military or naval service of the United States 
 as a private soldier, officer, seaman, marine, 
 national guardsman, or member of any other 
 organization for offense or defense authorized by 
 Congress during any war in which the United 
 States may be engaged, then his ^^•idow, if 
 unmarried, or in case of her death or marriage, 
 liis minor orphan children, or his or their legal 
 representatives, may proceed forthwith to make 
 final proof upon sucn entry or application there- 
 after allowed, and shall be entitled to receive 
 Government patent for such land ; and that the 
 death of such soldier while so engaged in the 
 service of the United States shall, in the ad- 
 ministration of the homestead laws, be con- 
 strued to be equivalent to a performance of all 
 requirements as to residence and cultivation 
 upon such homestead." (SeeactFeb. 25, 1919, 
 quoted under sec. 2304, R. S.) 
 
 Act September 29, 1919 (41 Stat., 288), made 
 provision for granting leave of absence from 
 their land to persons undergoing any course of 
 vocational rehabilitation; such absence to be 
 counted as constructive residence. 
 
 Act March 1, 1921 (41 Stat., 1202), made pro- 
 vision for issuing patents to settlers or entrymen 
 who enlisted in the Army, Navy, or Marine 
 Corps prior to November 11, 1918, having pre- 
 viously made application, settlement, or entry, 
 and who have been honorably discharged, but 
 because of physical incapacities incurred in 
 service are imaole to return to the land. 
 
 1086 
 
Public Lands. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 2459. 
 
 stead b}^ filing a declaratory statement, as in pre-emption cases; but such 
 claimant in person shall T\dthin the time prescribed make his actual entry, 
 commence settlements and improvements on the same, and thereafter fulfill all 
 the requirements of law. — (8 June, 1872, c. 338, s. 5, v. 17, p. 334.) 
 
 Act of August 7, 1911 (40 Stat., 250).— "That 
 no desert-land entry made or held under the 
 provisions of the Act of March tliird, ei2:hteen 
 hundred and seventy-seven, as amended by 
 the Act of March third, eighteen hundred and 
 ninety-one, by an officer or enlisted man in the 
 Army, Navy, Marine Corps, or Organized Mil- 
 itia of the United States shall be subject to 
 contest or cancellation for failure to make or 
 expend the sum of $1 per acre per year in im- 
 provements upon such claim, or to effect the 
 reclamation thereof, during the period said en- 
 tn,-man or his successor in interest is engaged in 
 the military ser\'ice of the United States during 
 the present war with Geimany, and until six 
 months thereafter, and the time within which 
 such entPk-man or claimant is required to make 
 such expenditures and effect reclamation of the 
 land shall be, exclusive of the time of his actual 
 service in the -irmy, Navy, Marine Corps, or 
 
 Sec. 2393. [Military or other reservations.] The provisions of this chapter 
 shall not apply to military or other reservations heretofore made by the United 
 States, nor to reservations for light-houses, custom-houses, mints, or such 
 other public purposes as the interests of the United States may require, whether 
 held under reservations thi'ough the Land-Office by title derived from the 
 Crown of Spain, or other^^se. — (2 Mar., 1867, c. 177, v. 14, p. 541. 28 Feh., 
 1877, c. 74, V. 19, p. 264.) 
 
 Title 
 
 Organized Militia of the United States: Pro- 
 vided, That said desert-land entry shall have 
 been made by the said officer or enlisted man 
 prior to his enlistment: Provided further, That 
 each such entryman or claimant shall, within 
 six months after the passage of this Act, or 
 nithin six months after he is mustered into the 
 service, file in the local land office of the dis- 
 trict wherein his claim is situate a notice of his 
 muster into the service of the United States and 
 of his desire to hold said desert claim under 
 this Act: Provided further. That the term 'en- 
 listed man,' as used in this section shall include 
 any person selected to serve in the military 
 forces of the United States as pro\'ided by the 
 Act entitled 'An Act authorizing the Presi- 
 dent to increase temporarily the Militarj- Estab- 
 lishment of the United States,' approved May 
 eighteenth, nineteen hundred and seventeen." 
 
 The words "this chapter" in the above section 
 refer to chapter 8, "Reservations and sale 
 
 of town sites on the public lands, 
 XXXII, "The Public Lands." 
 
 Sec. 2458. [Lands for supplying timber to the Navy.] The Secretary of the 
 Navy is authorized, under the direction of the President, to cause such vacant 
 and unappropriated lands of the United States as produce the live-oak and 
 red-cedar timbers to be explored, and selection to be made of such tracts or por- 
 tions thereof, where the principal growth is of either of such timbers, as in his 
 judgment may be necessary to furnish for the Navy a sufficient supply of the 
 same.— (1 Mar., 1817, c. 22, s. 1, v. 3, p. 347. 15 May, 1820, c. 136, v. 3, p. 607. 
 3 Mar., 1827, c. 94, s. 3, v. 4, p. 242.) 
 
 See note to section 2459, Revised Statutes. 
 
 Sec. 2459. [Selection of live-oak and red-cedar tracts.] The President is au- 
 thorized to appoint surveyors of public lands, who shall perform the duties pre- 
 scribed in the preceding section, and report to him the tracts bj' them selected, 
 with the boundaries ascertained and accurately designated by actual survey or 
 water-courses; and the tracts of land thus selected %vith the approbation of the 
 President shall be reserved, unless otherwise directed by law, from any future 
 sale of the pubhc lands, and be appropriated to the sole purpose of supplying 
 timber for the Navy of the United States; but nothing in this section contained 
 shall be construed to prejudice the prior rights of any person claiming lands, 
 which may be reserved in the manner herein provided. — (1 Mar., 1817, c. 22, s. 
 1, V. 3, p. 347.) 
 
 1087 
 
Sec. 2461. 
 
 Pt. 2. REVISED STATUTES. 
 
 Public Lands. 
 
 Restoration to public domain of lands in Ala- 
 bama and Afississippi. — "That the Secretary of 
 the Nav}'' be, and he is hereby, authorized to 
 cause to be certified to the Secretary of the In- 
 terior, for restoration to the public domain, the 
 whole or such portion or portions of the several 
 tracts of land in the States of Alabama and 
 Mississippi heretofore set apart and reserA'ed 
 for naval uses as are no longer required for the 
 purposes for which they were reserved, or for 
 any purposes connected with the naval service; 
 ancl upon such certification the tracts of land 
 described therein shall be duly restored to and 
 become a part of the public lands of the United 
 States * * *: Provided, That persons who 
 enter under the homestead law shall pay for 
 such lands not less than the value heretofore or 
 hereafter determined by appraisement, nor less 
 than the price of the land at the time of the 
 entry; and such payment may, at the option of 
 the purchaser, be made in five equal install- 
 ments, at times and at rates of interest to be 
 fixed by the Secretary of the Interior: Pro- 
 vided, That so much of the said lands as are 
 situated on Back Bay^ near the city of Biloxi, 
 in the State of Mississippi, shall be disposed of 
 under the town-site law and not as agricultural 
 lands." (Act Mar. 2, 1895, 28 Stat., 814.) 
 
 Transfer to Interior Department of lands in 
 Florida.— "ThAt the Secretary of the Navy be, 
 and he is hereV)y, authorized to cause an exam- 
 ination to be made of the condition of all lands 
 in the State of Florida which have been set 
 apart or reserved for naval purposes, excepting 
 the reservation ujion which the nai-y-yard at 
 Pensacola is located, and to ascertain whether 
 or not such reserAcd lands are or will be of any 
 value to the Government of the United States 
 for naval purposes. 
 
 "Sec. 2. That all of said lands which, in the 
 judgment of the Secretary of the Navy, are no 
 longer required for naval purposes shall, as soon 
 as practicable, be certified by him to the Sec- 
 retary of the Interior, and be suVjject to entry 
 and sale in the same manner and under the 
 same conditions as other public lands of the 
 United States: Provided, That all persons who 
 have, in good faith, made improvements on 
 said reserved lands so certified at the time of the 
 passage of this act, and who occupy the same, 
 shall be entitled to purchase the part or parts so 
 occupied or improved by them, not to exceed 
 one hundred and sixty acres to any one person 
 at one dollar and twenty-five cents per acre 
 within such reasonable time as may be fixed 
 by the Secretary of the Interior." CAct Mar. 
 3, 1879, 20 Stat.; 470, 471.) 
 
 Sec. 2460 [Protection of timber in Florida.] The President is authorized to 
 employ so much of the land and naval forces of the United States as may be 
 necessary to effectually prevent the felling, cutting do-\vn, or other destruction 
 of the timber of the United States in Florida, and to prevent the transportation 
 or carrying away any such timber as may be already felled or cut down; and to 
 take such other and further measures as may be deemed advisable for the pres- 
 ervation of the timber of the United States in Florida. — (23 Feb., 1822, c. 9, 
 V. 3, p. 651.) 
 
 See section 49, Criminal Code, act March 4, 1909 (35 Stat., 1098). 
 
 Sec. 2461 [Cutting or destroying timber reserved for Navy.] If any person 
 shall cut, or cause or procure to be cut, or aid, assist, or be employed in cutting, 
 or shall wantonly destroy, or cause or procure to be wantonly destroyed, or aid, 
 assist, or be employed in wantonly destroying any live-oak or red-cedar trees, 
 or other timber standing, growing, or being on any lands of the United States, 
 which, in pursuance of any law passed, or hereafter to be passed, have been 
 reserved or purchased for the use of the United States, for supplying or furnish- 
 ing therefrom timber for the Navy of the United States ; or if any person shall 
 remove, or cause or procure to be removed, or aid, or assist, or be employed in 
 removing from any such lands which have been reserved or purchased, any live- 
 oak or red-cedar trees, or other timber, unless duly authorized so to do, by order, 
 in\ATiting, of a competent officer, and for the use of the Navy of the United States; 
 or if any person shall cut, or cause or procure to be cut, or aid, or assist, or be 
 employed in cutting any live-oak or red-cedar trees, or other timber on, or shall 
 remove, or cause or procure to be removed, or aid, or assist, or be employed in 
 removing any live-oak or red-cedar trees or other timber, from any other lands 
 of the United States, acquired, or hereafter to be acquired, with intent to export, 
 dispose of, use, or employ the same in any manner whatsoever, other than for 
 
 1088 
 
Public Lands. Pt. 2. REVISED STATUTES. Sec. 2463. 
 
 the use of the Navy of the United States; every such person shall pay a fine 
 not less than triple the value of the trees or timber so cut, destroyed, or re- 
 moved, and shall be imprisoned not exceeding twelve months. — (2 Mar., 1831, 
 c. 66, s. 1, V. 4, p. 472.) 
 
 States and Territories, and which, was ex- 
 tended to other places bv act of Aiigiist 
 4, 1892 (27 Stat., 398). (Morgan v. U. S., 
 148 Fed. Rep., 189, 192.) 
 
 See section 49, Criminal Code, act !March 4, 1909 
 (35 Stat., 1098); see also, act June 3, 1878, 
 section 5 (20 Stat., 90), which expressly 
 amended section 2461, revised Statutes 
 as to prosecution for offenses in certain 
 
 Sec. 2462. [Forfeitnre of vessels.] If the master, o%vTier, or consignee of any 
 vessel shall knowingly take on board any timl)er cut on lands which have been 
 reserved or purchased as in the preceding section prescribed, without proper 
 authority, and for the use of the Navy of the United States; or shall take on 
 board any live-oak or red-cedar timber cut on any other lands of the 
 United States, with intent to transport the same to any port or place within 
 the United States, or to export the same to any foreign country, the vessel on 
 board of which the same shall be taken, transported, or seized, shall, with her 
 tackle, apparel, and furniture, be wholly forfeited to the United States, and 
 the captain or master of such vessel wherein the same was exported to any 
 foreign country against the provisions of this section shall forfeit and pay to the 
 United States a sum not exceeding one thousand dollars. — (2 Mar., 1831, c. 66, 
 s. 2, V. 4, p. 472.) 
 
 By act of April 30, 1878, section 2 (20 Stat., 46), the Territories of the United States, it shall 
 
 it was provided that "if any timber cut on be liable to seiziu-e by United States au- 
 
 the public lands shall be exported from thority wherever found." 
 
 Sec. 2463. [Clearance of vessel ; timber cut by consent of Navy Depart- 
 ment.] It shall be the duty of all collectors of the customs within -the States 
 of Alabama, Mississippi, Louisiana, and Florida, before allowing a clearance to 
 any vessel laden in whole or in part with live-oak timber, to ascertain satis- 
 factorily that such timber was cut from private lands, or, if from public ones, 
 by consent of the Navy Department. And it is also made the duty of all officers 
 of the customs, and of the land officers mthin those States, to cause prosecu- 
 tions to be seasonably instituted against all persons known to be guilty of 
 depredations on, or injiu-ies to, the live oak growing on the public lands. — (2 Mar., 
 1833, c. 67, s. 3, v. 4, p. 647.) 
 
 See notes to sections 2459-2462, Revised Statutes; and see section 4205, Revised Statutes, 
 on the same subject. 
 
 1089 
 
TITLE XXXIV. 
 
 COLLECTION OF DUTIES UPON IMPORTS. 
 
 Sec. 2687. [Apportionment of compensation for part of year's service.] Col- 
 lectors and all other officers of the customs, serving for a less period than a year, 
 shall not be paid for the entire year, but shall be allowed in no case a greater 
 than a pro rata of the maximum compensation of such officers respectively 
 for the time only which they actually serve as such collectors or officers, whether 
 the same be under one or more appointments, or before or after confirmation. 
 And no collector or other officer shall, in any case, receive for his services, either 
 as fees, salary, fines, penalties, forfeitures, or otherwise, for the time he may be in 
 service, beyond the maximum pro rata rate provided by law. And this section 
 shall be applied and enforced in regard to all officers, agents, and employes of 
 the United States whomsoever, as well those whose compensation is deter- 
 mined by a commission on disbursements, not to exceed an annual maxi- 
 mum, as those paid by salary or otherwise. — (11 Feb., 1846, c. 7, s. 1, v. 9, p. 
 3. 18 July, 1866, c. 201, s. 34, v. 14, p. 186.) 
 
 United States recei\'in,g annual or monthly 
 compensation. 
 
 By act June 31, 1906, section 6 (34 Stat., 763), 
 rules were prescribed for the computation 
 of pay of persons in the service of the 
 
 Sec. 2767. [Revenue-cutters to cooperate with Navy.] The revenue-cutters 
 shall, whenever the President so directs, co-operate with the Navy, during 
 which time they shall be under the direction of the Secretary of the Navy, and 
 the expenses thereof shall be defrayed by the Navy Department. — (2 Mar. 
 1799, c. 22, s. 98, V. 1, p. 699.) 
 
 By act of January 28, 1915 (38 Stat., 800), the 
 Revenue-Cutter Service and the Life-Sav- 
 ing Service were consolidated and reestab- 
 lished as the ' ' Coast Guard, " and it was pro- 
 vided that said organization "shall consti- 
 tute a part of the military forces of theUnited 
 States, ' ' and ' ' shall operate under the Treas- 
 ury Department in time of peace and oper- 
 ate as a part of the Navy, subject to the 
 orders of the Secretary of the Navy, in 
 time of war or when the President shall so 
 direct." (See note to sec. 1492, R. S.) 
 
 By act of August 29, 1916 (39 Stat., 600), it was 
 provided that "hereafter whenever, in ac- 
 cordance with law, the expenses of the 
 Coast Guard are paid by the Navy Depart- 
 ment, any naval appropriations from 
 
 which payments are so made shall be re- 
 imbursed from available appropriations 
 made by Congress for the expenses of the 
 CoastGuard." (Byactsof June 15, 1917,40 
 Stat., 212, and July 1, 1918, 40 Stat., 731, 
 appropriations were made for the naval 
 establishment, and it was provided that 
 said appropriations "shall be available 
 for similar expenses of the Coast Guard and 
 Lighthouse Ser\'ice while cooperating 
 with the Navy in so far as the regular ap- 
 propriations for these ser\'ice3 are insuffi- 
 cient therefor; and, when expenditures are 
 thus made, naval appropriations need not 
 be reimbursed from the appropriations for 
 the Coast Guard and Lighthouse Service.") 
 
 1091 
 
I 
 
TITLE XXXVI. 
 
 DEBTS DUE BY OR TO THE UNITED STATES. 
 
 Sec. 3477. [Assignment of claims against United States.] All transfers 
 and assignments made of any claim upon the United ^States, or of any part or 
 share thereof, or interest therein, whether absolute or conditional, and what- 
 ever may be the consideration therefor, and all powers of attorney, orders, or 
 other authorities for receiving payment of any such claim, or of any part or share 
 thereof, shall be absolutely null and void, unless they are freely made and exe- 
 cuted in the presence of at least two attesting witnesses, after the allowance of 
 such a claim, the ascertainment of the amount due, and the issuing of a war- 
 rant for the payment thereof. Such transfers, assignments, and powers of 
 attorney, must recite the warrant for payment, and must be acknowledged 
 by the person making them, before an officer having authority to take acknowl- 
 edgements of deeds, and shall be certified by the officer; and it must appear by 
 the certificate that the officer, at the time of the acknowledgement, read and 
 fully explained the transfer, assignment, or warrant of attorney to the person 
 acknowledging the same. — (29 July, 1846, c. 66, v. 9, p. 41. 26 Feb., 1853, c. 
 81, s. 1, V. 10, p. 170.) 
 
 See sections 1430 and 1576, Revised Statutes, 
 and note thereto, as to assignment of wages 
 
 by enlisted men of the Navy, and allot- 
 ments of pay by officers of the Navy. 
 
 Sec. 3478. [Oath by persons prosecuting claims.]. Any person prosecuting 
 claims, either as attorney or on his own account, before any of the Departments 
 or Bureaus of the United States, shall be required to take the oath of allegiance, 
 and to support the Constitution of the United States, as required of persons in 
 the civil service.— (17 July, 1862, c. 205, s. 1, v. 12, p. 610.) 
 
 See sections 190 and 1757, Re^'ised Statutes. 
 
 Sec. 3479. [Who may administer oath.] The oath provided for in the pre- 
 ceding section may be taken before any justice of the peace, notary public, or 
 other person who is legally authorized to administer an oath in the State or 
 district where the same may be administered. — (17 July, 1862, c. 205, s. 2, v. 
 12, p. 610. 
 
 1093 
 
TITLE XL. 
 
 THE PUBLIC MONEYS. 
 
 Sec. 
 3614. Bond of special agents. 
 
 3617. Moneys to be deposited without deduc- 
 
 tion. 
 
 3618. Proceeds of sales; miscellaneous receipts. 
 
 3619. Penalty for withholding money. 
 
 3620. Duty of disbursing officers. 
 
 3621. Time allowed in which to deposit money. 
 
 3622. Time allowed for rendering accounts. 
 
 Sec. 
 
 3624. Suits to recover money from officers. 
 3639. Duties of custodians of public moneys. 
 3643. Entry of receipts, payments, and trans- 
 fers. 
 
 3646. Lost or stolen checks; duplicates. 
 
 3647. Duplicate check; officer dead. 
 
 3648. Advances of public moneys prohibited. 
 
 3651. Exchange of funds restricted. 
 
 3652. Premium on sales of public securities. 
 
 3623. Distinct accounts required . 
 
 Sec. 3614. [Bond of special agents.] Whenever it becomes necessary for 
 the head of any Department or office to employ special agents, other than 
 officers of the Army or Navy, who may be charged with the disbm-sement of 
 public moneys, such agents shall, before entering upon duty, give bond in such 
 form and with such security as the head of the Department or office employing 
 them may approve. — (4 Aug., 1854, c. 242, s. 14, v. 10, p. 573.) 
 
 See sections 1383 and 1550, Revised Statutes, and notes thereto. 
 
 Sec. 3617. [Moneys to be deposited without deduction.] The gross amount 
 of all moneys received from whatever source for the use of the United States, 
 except as otherwise provided in the next section, shall be paid by the officer or 
 agent receiving the same into the Treasury, at as early a day as practicable, 
 wdthout any abatement or deduction on account of salary, fees, costs, charges, 
 expenses, or claim of any description whatever. But nothing herein shall 
 affect any provision relating to the revenues of the Post-Office Department.^ 
 (3 Mar., 1849, c. 110, s. 1, v. 9, p. 398. 28 Sept., 1850, c. 78, s. 3, v. 9, p. 507.) 
 
 See section 3619, Revised Statutes, as to 
 penalty for violating this section. 
 
 See sections 86-92, Criminal Code, act March 4, 
 1909 (35 Stat., 1105), and see section 1624, 
 Revised Statutes, article 14, as to acts 
 constituting embezzlement. 
 
 Sec. 3618. [Proceeds of sales; miscellaneous receipts.] All proceeds of 
 sales of old material, condemned stores, supplies, or other public property 
 of any kind, except the proceeds of the sale or leasing of marine hospitals, or of 
 the sales of revenue-cutters, or of the sales of commissary stores to the ofiicers 
 and enlisted men of the Army, [or of materials, stores, or supplies sold to officers 
 and soldiers of the Army] or of the sale of condemned Navy clothing, or of sales 
 of materials, stores, or supplies to any exploring or surveying expedition 
 authorized by law, shall be deposited and covered into the Treasury as miscel- 
 laneous receipts, on account of ''proceeds of Government property," and shall 
 not be withdrawn or applied, except in consequence of a subsequent appro- 
 priation made by law. — (3 Mar., 1847, c. 48, s. 1, v. 9, p. 171. 20 April, 1866, 
 c. 63, ss. 1, 2, V. 14, p. 40. 28 July, 1866, c. 299, s. 25, v. 14, p. 336. 3 May 
 1872, c. 140, s. 5, V. 17, p. 83. 8 June, 1872, c. 348, v. 17, p. 337. 22 June, 1874, 
 c. 413, V. 18, J). 200. 27 Feb., 1877, c. 69, v. 19, p. 249.) 
 
 1095 
 
Sec. 3621. 
 
 PL 2. REVISED STATUTES. 
 
 Public Moneys. 
 
 The words in brackets wore inserted in this 
 
 section (as reproduced above from the 
 
 second edition of the Revised Statutes) 
 
 by act of I'Y-bruary 27, 1877 (19 Stat., 249). 
 Act June 8, 1890 (29 Stat., 268), provided that 
 
 '■from the proceeds of sales of old material, 
 
 condemned stores, supplies, or other pub- 
 lic property of any kind, before being 
 
 deposited into the Treasury, either as 
 
 miscellaneous receipts on account of 
 
 'proceeds of Government property' or to 
 
 the credit of the appropriations to which 
 
 such proceeds are by law authorized to be 
 
 made, there may be paid the expenses of 
 
 such sales, as approved by the accounting 
 
 officers of the Treasury, so as to require 
 
 Sec. 3619. [Penalty for withholding money.] Every officer or agent who 
 neglects or refuses to comply with the provisions of section thirty-six hundred 
 and seventeen shall be subject to be removed from office, and to forfeit to the 
 United States any share or part of the moneys withheld, to which he might 
 otherwise be entitled.— (18 July, 1866, c. 201, s. 40, v. 14, p. 187.) 
 
 only the net proceeds of such sales to be 
 deposited into the Treasury, either as 
 miscellaneous receipts or to the credit of 
 such appropriations, as the case may be." 
 
 See section 433, Revised Statutes, and note 
 thereto, as to proceeds of sales of publica- 
 tions of the Hydrographic Office, Navy 
 Department. 
 
 See sections 418, 1530, and 1541, Revised 
 Statutes, and laws cited thereunder, as to 
 sales of vessels and old materials belonging 
 to the Navv. 
 
 See act of March 4, 1917 (39 Stat., 1175), quoted 
 under section 4750, Revised Statutes, as to 
 proceeds of sales in certain cases being 
 credited to the Naval Pension Fund. 
 
 See sections 86-92, Criminal Code, act March 4, 
 1909 (35 Stat., 1105), and see section 1624, 
 
 Revised Statutes, article 14, as to acts con- 
 stituting embezzlement. 
 
 Sec. 3620. [Duty of disbursing officers.] It shall be the duty of every dis- 
 bursing officer having any public money intrusted to him for disbursement, to 
 deposit the same with the Treasurer or some one of the assistant treasurers of 
 the United States, and to draw for the same only as it may be required for pay- 
 ments to be made by him in pursuance of law [and draw for the same only in 
 favor of the persons to whom paj^ment is made;] and all transfers from the 
 Treasurer of the United States to a disbursing officer shall be by draft or war- 
 rant on the Treasury or an assistant treasurer of the United States. In places, 
 however, where there is no treasurer or assistant treasurer, the Secretary of the 
 Treasury may, when he deems it essential to the public interest, specially 
 authorize in writing the deposit of such public money in any other public 
 depository, or, in writing, authorize the same to be kept in any other manner, 
 and under such rules and regulations as he may deem most safe and effectual 
 to facilitate the payments to public creditors. — (14 June, 1866, c. 122, s. 1, v. 14, 
 p. 64. 27 Feh., 1877, c. 69, v. 19, p. 249.) 
 
 The words in brackets were inserted in this 
 section (as reproduced above from the 
 second edition of the Revised Statutes) by 
 act of February 27, 1877 (19 Stat., 249). 
 
 See sections 86-92, Criminal Code, act March 
 4, 1909 (35 Stat., 1105), and see section 
 1624, Revised Statutes, article 14, as to 
 acts constituting embezzlement. 
 
 Sec. 3621. [Time allowed in which to deposit money.] Every person who 
 shall have moneys of the United States in his hands or possession, and dis- 
 bursing officers having moneys in their possession not required for current 
 expenditure, shall pay the same to the Treasurer, an Assistant Treasurer, or 
 some public depositary of the United States, without delay, and in all cases 
 within thirty days of their receipt. And the Treasurer, the Assistant Treasurer, 
 or the public depositary shall issue duplicate receipts for the moneys so paid, 
 transmitting forthwith the original to the Secretary of the Treasury, and deliv- 
 ering the duplicate to the depositor: Provided, That postal revenues and debts 
 due to the Post-Office Department shall be paid into the Treasury in the man- 
 ner now required by law. 
 
 1096 
 
PubUc Moneys. Pt. 2. REVISED STATUTES. Sec. 3624. 
 
 This section was exjiressly amended and 
 reenacted to read as above bv the act of 
 May 28, 1896, section 5 (29 Stat., 179.) 
 
 Penalty for failure to deposit money, see sec- 
 
 tions 86-92, Criminal Code, act March 4, 
 1909 (.35 Stat., 1105), and section 1624, 
 Re\ised Statutes, article 14, as to acta 
 con?titutin<j; embezzlement. 
 
 Sec. 3622. [Time allowed for rendering accounts.] Every officer or agent of 
 the United States who receives public money which he is not authorized to 
 retain as salary, pay, or emolument, shall render his accounts montlily. Such 
 accounts, with the vouchers necessary to the correct and prompt settlement 
 thereof, shall be sent by mail, or otherwise, to the Bureau to which they pertain, 
 within ten days after the expiration of each successive month, and, after ex- 
 amination there, shall be passed to the proper accounting officer of the Treasury 
 for settlement. Disbursing officers of the Navy shall, however, render their 
 accounts and vouchers direct to the proper accounting officer of the Treasury. 
 In case of the non-receipt at the Treasury, or proper Bureau, of any accounts 
 within a reasonable and proper time thereafter, the officer whose accounts 
 are in default shall be required to furnish satisfactory evidence of having com- 
 plied with the provisions of this section. The Secretary of the Treasury may, 
 if in his opinion the circumstances of the case justify and rec[uire it, extend the 
 time hereinbefore prescribed for the rendition of accounts. Nothing herein 
 contained shall, however, be construed to restrain the heads of any of the 
 Departments from requiring such other returns or reports from the officer or 
 agent, subject to the control of such heads of [Department] [Departments], 
 as the public interest may require. — (17 July 1862, c, 199 s. 1, v. 12, p. 593. 
 2 Mar., 1867, Res. 48, v. 14, p. 571. 15 July. 1870, c. 295, s. 15, v. 16, p. 334. 
 27 Fe6., 1877, c. 69, v. 19, p. 249.) 
 
 section 12 (28 Stat., 209), which expressly 
 struck from this section the words "The 
 Secretary of the Treasury may, if in his 
 opinion the circumstances of the case jus- 
 tif\^ and require it, extend the time herein- 
 before prescribed for the rendition of ac- 
 counts, ' ' being the next to the last sentence 
 of this section as given above. The said 
 act of 1894 contained other provisions as to 
 the rendition of accounts and authorizing 
 the Secretary of the Treasury to relax re- 
 quirements and waive delinquency under 
 specified conditions. 
 Penalty for failure to render accounts, see sec- 
 tions 86-92, Criminal Code, act March 4, 
 1909 (35 Stat., 1105), and section 1624, Re- 
 A-ised Statutes, article 14, as to acts consti- 
 tuting embezzlement. 
 
 This section is given above as it appears in the 
 
 second edition of the Revised Statutes. 
 
 The word "Department" was stricken 
 
 from the original section and the word 
 
 "Departments" substituted therefor (as 
 
 indicated bv brackets) by act of Februarv 
 
 27, 1877 (19'Stat., 249). 
 Other amendments to this section were ma.de bv 
 
 act of August 30, 1890, section 4 (26 Stat.', 
 
 413), which provided that "hereafter all 
 
 disbursing officers of the United States shall 
 
 render their accounts quarterly; and the 
 
 Secretary of the Senate shall render his 
 
 accounts as heretofore; but the Secretary 
 
 of the Treasury may direct any or all such 
 
 accounts to be rendered more frequently 
 
 when in his judgment the public interests 
 
 may require"; and by act of July 31, 1894, 
 
 Sec. 3623. [Distinct accounts required.] All officers, agents, or other 
 persons, receiving public moneys, shall render distinct accounts of the applica- 
 tion thereof, according to the appropriation under which the same may have 
 been advanced to them. — (3 JMar., 1809, c. 28, s. 1, v. 2, p. 535.) 
 
 Sec. 3624. [Suits to recover money from officers.] Whenever an}'- person 
 accountable for public money, neglects or refuses to pay into the Treasury the 
 sum or balance reported to be due to the United States, upon the adjustment of 
 his account, the First Comptroller of the Treasur}' shall institute suit for the 
 recovery of the same, adding to the sum stated to be due on such account, the 
 commissions of the delinquent, w^hich shall be forfeited in every instance where 
 suit is commenced and judgment obtained thereon, and an interest of six per 
 
 1097 
 
Sec. 3646. Pt. 2. REVISED STATUTES. PubHc Moneys 
 
 centum per annum, from the time of receiving the money until it shall be repaid 
 into the Treasury. — (3 Mar., 1797, c. 20, s. 1, v. 1, p. 512. U. S. v. Gaussen, 
 19 Wall., 198.) 
 
 Amendment to this section was made by act of 
 July 31, lSi)4, section 4 (28 Stat., 205), 
 which provided that "the First Comp- 
 troller of the Treasury shall hereafter be 
 known as the Comptroller of the Treasury. ' ' 
 
 See notes to sections .346 and 356, Revised 
 Statutes, as to j urisdiction of the Attorney 
 General; and note to section 236, Revised 
 Statutes, as to jurisdiction of Comptroller 
 of the Treasury. 
 
 Sec. 3639. [Duties of custodians of public moneys.] The Treasurer of the 
 United States, all assistant treasurers, and those performing the duties of assist- 
 ant treasurer, all collectors of the customs, all surveyors of the customs, acting 
 also as collectors, all receivers of public moneys at the several land-offices, all 
 postmasters, and all public officers of whatsoever character, are required to 
 keep safely, Avithout loaning, using, depositing in banks, or exchanging for 
 other funds than as specially allowed by law, all the public money collected by 
 them, or otherwise at any time placed in their possession and custody, till the 
 same is ordered, by the proper Department or officer of the Government, to be 
 transferred or paid out; and when such orders for transfer or payment are 
 received, faithfully and promptly to make the same as directed, and to do and 
 perform all other duties as fiscal agents of the Government which may be im- 
 posed by any law, or by any regulation of the Treasury Department made in 
 conformity to law. The President is authorized, if in his opinion the interest 
 of the United States requires the same, to regulate and increase the sums for 
 which bonds are, or may be, required by law, of all district attorneys, collectors 
 of customs, naval officers, and surveyors of customs, navy agents, receivers 
 and registers of public lands, paymasters in the Army, commissary-general, 
 and by all other officers employed in the disbursement of the public moneys, 
 under the direction of the War or Navy Departments. — (6 Aug., 1846, c. 90, 
 s. 6, V. 9, p. 60. 3 July, 1852, c. 54, s. 7, v. 10, p. 12. 3 Mar., 1857, c. 114, s. 2, 
 V. 11, p. 249. 21 April, 1862, c. 59, s. 5, v. 12, p. 382. 3 Mar., 1863, c. 96, s. 5, 
 V. 12, p. 770. 4 July, 1864, c. 24, s. 5, v. 13, p. 383. 18 Feb., 1869, c. 33, s. 4, 
 V. 15, 271.) 
 
 See sections 86-92, Criminal Code, act March 4, I See sections 1383-1385, Revised Statutes, and 
 
 1909 (.35 Stat., 1105), and section 1624, Re- 
 vised Statutes, article 14, as to acts con- 
 stituting embezzlement by public officers. 
 
 notes thereto, as to bonds of disbursing 
 officers. 
 
 Sec. 3643. [Entry of receipts, payments, and transfers.] All persons charged 
 by law with the safe-keeping, transfer, and disbursement of the public moneys, 
 other than those connected with the Post-Office Department, are required to 
 keep an accurate entry of each sum received and of each payment or transfer. — 
 (6 Aug., 1846, c. 90, s. 10, v. 9, p. 63.) 
 
 Sec. 3646. [Lost or stolen checks; duplicates.] That whenever any 
 original check is lost, stolen, or destroyed disbursing officers and agents of the 
 United States are authorized, within three years from the date of such check, 
 to issue a duplicate check, under such regulations in regard to its issue and 
 payment, and upon the execution of such bond, with sureties, to indemnify 
 the United States, and proof of loss of original check, as the Secretary of the 
 Treasury shall prescribe: Provided, That whenever any original check or war- 
 rant of the Post Office Department has been lost, stolen, or destroyed the 
 
 1098 
 
Public Mone3rs. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 3648. 
 
 Postmaster General may authorize the issuance of a dupHcate thereof, at any 
 time within three years from the date of such original check or warrant, upon 
 the execution by the o\\Tier thereof of such bond of indemnity as the Postmaster 
 General may prescribe: Provided further, That when such original check or 
 warrant does not exceed in amount the sum of $50 and the payee or owner 
 is, at the date of the apphcation, an officer or employee in the service of the 
 Post Office Department, whether by contract, designation, or appointment, the 
 Postmaster General may, in Ueu of an indemnity bond, authorize the issuance 
 of a duplicate check or warrant upon such an affidavit as he may describe, to be 
 made before any postmaster by the payee or o^\Tier of an original check or 
 warrant." 
 
 This section was expressly amended and re- 
 enacted to read as above by act of March 
 21, 1916 (39 Stat., 37). 
 
 See section 300, Re\-ised Statutes, 
 thereto, as to lost checks. 
 
 and note 
 
 Sec. 3647. [Duplicate check; officer dead.] In case the disbursing officer 
 or agent by whom such lost, destroyed, or stolen original check was issued is 
 dead or no longer in the service of the United States it shall be the duty of the 
 proper accounting officer, under such regulations as the Secretary of the Treasury 
 may prescribe, to state an account in favor of the owner of such original check 
 for the amount thereof and to charge such amount to the account of such officer 
 or agent : Provided, That m case a check drawn by any officer or agent of the 
 Post-Office Department is lost, stolen, or destroyed a duplicate thereof may 
 be issued under regulations prescribed by the Postmaster-General, as set forth 
 in section thirty-six hundred and forty-six. 
 
 This section was expressly amended and re- 
 enacted by act of February 23, 1909 
 
 (35 Stat., 644). 
 
 See section 300, Revised Statutes, which is 
 similar to the general provisions of this 
 section. 
 
 Sec. 3648. [Advances of public moneys prohibited.] No advance of 
 pubhc money shall be made in any case whatever. And in all cases of contracts 
 for the performance of any service, or the delivery of articles of any descrip- 
 tion, for the use of the United States, payment shall not exceed the value of 
 the service rendered, or of the articles delivered previously to such payment. 
 It shaU, however, be lawful, under the special du-ection of the President, to 
 make such advances to the disbursing officers of the Government as may be 
 necessary to the faithful and prompt discharge of their respective duties, and 
 to the fulfillment of the public engagements. The President may also direct 
 such advances as he may deem necessary and proper, to persons in the military 
 and naval service employed on distant stations, where the discharge of the pay 
 and emoluments to wliich they may be entitled cannot be regularly effected. — 
 (31 Jan., 1823, c. 9, s. 1, v. 3, p. 723. Williams v. U. S., 1 How., 290; The 
 Floyd Acceptances, 7 Wall., 666; U. S. v. Cutter, 2 Curt., 617.) 
 
 See section 1563, Revised Statutes, and note 
 
 thereto as to advances of public moneys 
 
 to persons in the naval service. 
 Hereafter subscriptions for newspapers and 
 
 periodicals for the naval ser\-ice may be 
 
 paid for in advance. (Act Mar. 3, 1915, 
 
 38 Stat., 929.) 
 Subscriptions for "periodicals" required for 
 
 official use may be paid in advance. (Act 
 
 Mar. 4, 1915, 38 Stat., 1049.) See note to 
 section 192, Revised Statutes. 
 
 Secretary of the Navy may purchase mileage 
 books, commutation tickets, etc., and pay 
 for same in advance of travel by officers 
 and others on official business. (Act Apr. 
 27, 1904, 33 Stat., 403.) 
 
 Secretary of the Na\y may make partial pay- 
 ments diuing progress of work on con- 
 
 54641°— 22- 
 
 -70 
 
 1099 
 
Sec. 3652. Pt. 2. REVISED STATUTES. Public Moneys. 
 
 tracts under the Navy Department for 
 jiiiblic purposes not in excess of value of 
 work done. (Act Aug. 22, 1911, 37 Stat., 
 32.) By act of October 6, 1917, section 5 
 (40 Stat., 383), the Secretary of the Nav\' 
 
 was authorized "during the period of the 
 existing emergency" to advance pay- 
 ments to contractors for supplies in amounts 
 not exceeding 30 per centum of the con- 
 tract i)rice and upon adequate security. 
 
 Sec. 3651. [Exchange of funds restricted.] No exchange of funds shall 
 be made by any disbursing officer or agent of the Government, of any grade or 
 denomination whatsoever, or connected with any branch of the public service, 
 other than an exchange for gold, silver, United States notes, and national-bank 
 notes ; and every such disbursing officer, when the means for his disbursements 
 are furnished to him in gold, silver. United States notes, or national-bank 
 notes, shall make his payments in the moneys so furnished; or when they are 
 furnished to him in drafts, shall cause those drafts to be presented at their 
 place of payment, and properly paid according to law, and shall make his pay- 
 ments in the money so received for the drafts furnished, unless, in either case, 
 he can exchange the means in his hands for gold and silver at par. And it 
 shall be the duty of the head of the proper Department immediately to suspend 
 from duty any disbursing officer or agent who violates the provisions of this 
 section, and forthwith to report the name of the officer or agent to the Presi- 
 dent, with the fact of the violation, and all the circumstances accompanying 
 the same, and within the knowledge of the Secretary, to the end that such 
 officer or agent may be promptly removed from office, or restored to his trust 
 and the performance of his duties, as the President may deem just and proper. — 
 (6 Aug., 1846, c. 90, s. 20, v. 9, p. 64. 22 Feb., 1862, c. 33, s. 1, v. 12, p. 345. 11 
 July, 1862, c. 142, s. 1, v. 12, p. 532. 3 Mar., 1863, c. 73, s. 3, v. 12, p. 710. 
 3 June, 1864, c. 106, s. 23, v. 13, p. 106. U. S. v. City Bank, 6 McLean, 130.) 
 
 See sections 86-92, Criminal Code, act March Revised Statutes, article 14, as to acts con- 
 
 4, 1909 (35 Stat., 1105), and section 1624, stituting embezzlement by public officers. 
 
 Sec. 3652. [Premium on sales of public securities.] No officer of the 
 United States shall, either directly or indirectly, sell or dispose of to any person, 
 for a premium, any Treasury note, draft, warrant, or other public security, 
 not his private property, or sell or dispose of the avails or proceeds of such 
 note, draft, warrant, or security, in his hands for disbursement, without making 
 return of such premium, and accounting therefor by charging the same in his 
 accounts to the credit of the United States; and any officer violating this 
 section shall be forthwith dismissed from office. — (6 Aug., 1846, c. 90, s. 21, v. 9, 
 p. 65.) 
 
 1100 
 
TITLE XLI. 
 
 APPROPRIATIONS. 
 
 Sec. 
 
 3660. Manner of communicating estimates. 
 
 3661. Estimates for printing and binding. 
 
 3662. Estimates for salaries. 
 
 3663. Estimates for public works. 
 
 3664. Explanation of estimates. 
 
 3665. Amoimt of outstanding appropriations to 
 
 be designated. 
 
 3666. Estimates for Xavy Department. 
 
 3667. Estimates of claims on naval pension 
 
 fund . 
 3669. Estimates submitted through Secretary 
 of the Treasiuy. 
 
 3672. Proceeds of sales'. 
 
 3673. Money requisitions for War and Xa\-y 
 
 Departments. 
 3676. Appropriations for the Na\-y, how con- 
 trolled. 
 
 Sec. 
 
 3678. Application of moneys appropriated. 
 
 3679. No expenditures beyond appropriations; 
 
 voluntary services prohibited. 
 
 3681. Expenses of commissions and inquiries. 
 
 3682. Contingent funds; clerical services. 
 
 3683. Contingent frmds; piu-chases from. 
 3686. Appropriations for foreign hydrographic 
 
 surveys. 
 
 3689. Permanent indefinite appropriations. 
 
 3690. Expenditure of balances of appropria- 
 
 tions. 
 
 3691. Disposal of balances after two years. 
 
 3692. Proceeds of sales, condemned clothing, 
 
 etc. 
 
 Sec. 3660. [Manner of communicating estimates.] The heads of Depart- 
 ments, in commmiicating estimates of expenditures and appropriations to 
 Congress, or to any of the committees thereof, shall specify, as nearly as may 
 be convenient, the som-ces from which such estimates are derived, and the 
 calculations upon which they are founded, and shall discriminate between such 
 estimates as are conjectiu'al in their character and such as are framed upon 
 actual information and applications from disbursing officers. They shall also 
 give references to any law or treaty by which the proposed expenditures are, 
 respectively, authorized, specifying the date of each, and the volume and page 
 of the Statutes at Large, or of the Revised Statutes, as the case may be, and 
 the section of the act in which the authority is to be found. — (26 Aug., 1842, c. 
 202, s. 14, V. 5, p. 525. 3 Mar., 1875, c. 129, s. 3, v. 18, p. 370.) 
 See sections 429 and 430, Re\ised Statutes, and laws noted thereunder. 
 
 Sec. 3661. [Estimates for printing and binding.] The head of each of the 
 Executive Departments, and every other public officer who is authorized to 
 have printing and binding done at the Congressional Printing-Office for the 
 use of his Department or public office, shall include in his annual estimate for 
 appropriations for the next fiscal year such sum or sums as may to him seem 
 necessary "for printing and binding, to be executed under the direction of 
 the Congressional Printer."— (8 May, 1872, c. 140, s. 2, v. 17, p. 82.) 
 
 The designation of the "'Congressional Printer" 
 was changed to "Public Printer" bv act 
 of June 20, 1874 (18 Stat, 88 j; and he was 
 to "take charge of and manage the Gov- 
 
 Sec. 3662. [Estimates for salaries.] All estimates for the compensation 
 of officers authorized by law to be employed shall be founded upon the express 
 
 ernmeut Printing Office" by act of Julv 
 31, 1876 (19 Stat., 105). 
 See sections 429 and 430, Revised Statutes, and 
 laws noted thereunder. 
 
 1101 
 
Sec. 3666. Pt. 2. REVISED STATUTES. Appropriations. 
 
 provisions of law, and not upon the authority of executive distribution. — 
 (3 Mar., 1855, c. 175, s. 8, v. 10, p. 670.) 
 
 See sections 429 and 430, Revised Statutes, and laws noted thereunder. 
 
 Sec. 3663. [Estimates for public works.] Whenever any estimate submitted 
 to Congress by the head of a Department asks an appropriation for any new 
 specific expenditure, such as the erection of a pu])hc building, or the construc- 
 tion of any public work, requiring a plan before the building or work can be 
 properly completed, such estimate shall be accompanied by full [plan] [plans] 
 and detailed estimates of the cost of the whole work. All subsequent esti- 
 mates for any such work shall state the original estimated cost, the aggregate 
 amount theretofore appropriated for the same, and the amount actually 
 expended thereupon, as well as the amount asked for the current year for 
 which such estimate is made. And if the amount asked is in excess of the 
 original estimate, the full reasons for the excess, and the extent of the antici- 
 pated excess, shall be also stated. — (17 June, 1844, c. 105, s. 2, v. 5. p. 693. 
 3 IVIar., 1855, c. 175, s. 8, v. 10, p. 670. 27 Feb., 1877, c. 69, v. 19, p. 249.) 
 
 This section is reproduced above as it appears 
 in the second edition of the Revised Stat- 
 utes. The word "plan " was stricken from 
 the original section and the word "plans" 
 substituted therefor, as indicated by 
 
 brackets, by act of February 27, 1877 (19 
 Stat., 249). 
 See sections 429 and 430, Revised Statutes, 
 and laws noted thereunder; see also 
 section 3734, Revised Statutes. 
 
 Sec. 3664. [Explanation of estimates.] Whenever the head of a Depart- 
 ment, being about to submit to Congress the annual estimates of expenditures 
 required for the coming year, finds that the usual items of such estimates vary 
 materially in amount from the appropriation ordinarily asked for the object 
 named, and especially from the appropriation granted for the same objects for 
 the preceding year, and whenever new items not theretofore usual are intro- 
 duced into such estimates for any year, he shall accompany the estimates by 
 minute and full explanations of all such variations and new items, showing the 
 reasons and grounds upon which the amounts are required, and the different 
 items added.— (17 June, 1844, c. 105, s. 2, v. 5, p. 693. 3 Mar., 1855, c. 175, 
 s. 8, V. 10, p. 670.) 
 
 See sections 429 and 430, Re\dsed Statutes, and laws noted thereunder. 
 
 Sec. 3665. [Amount of outstanding appropriations to be designated.] The 
 head of each Department, in submitting to Congress his estimates of expendi- 
 tui-es required in his Department during the year then approaching, shall 
 designate not only the amount required to be appropriated for the next fiscal 
 year, but also the amount of the outstanding appropriation, if there be any, 
 which will probably be required for each particular item of expenditure. — 
 (2 June, 1858, c. 82, s. 2, v. 11, p. 308.) 
 
 See sections 429 and 430, Re\'ised Statutes, and laws noted thereunder. 
 
 Sec. 3666. [Estimates for Navy Department.] The estimates for expendi- 
 tures required by the Department of the Navy for the following purposes shall 
 be given in detail, and the expenditures made under appropriations therefor 
 shall be accounted for so as to show the disbursements of each Bureau under 
 each respective appropriation: 
 
 First. Freight and transportation. 
 
 Second. Printing and stationery. 
 
 1102 
 
Appropriations. PL 2. REVISED STATUTES. Sec. 3672. 
 
 Third. Advertising in newspapers. 
 
 Fourth. Books, maps, models, and drawings. 
 
 Fifth. Purchase and repair of fire-engines and machinery. 
 
 Sixth. Repairs of and attending to steam-engines in navy-yards. 
 
 Seventh. Purchase and maintenance of horses and oxen, and driving 
 teams. 
 
 Eighth. Carts, timber- wheels, and the purchase and repair of workmen's 
 tools. 
 
 Ninth. Postage of public letters. 
 
 Tenth. Fuel, oil, and candles for navy-yards and shore stations. 
 
 Eleventh. Pay of watchmen and incidental labor not chargeable to any 
 other appropriation. 
 
 Twelfth. Transportation to, and labor attending the delivery of pro- 
 visions and stores on foreign stations. 
 
 Thirteenth. Wharfage, dockage, and rent. 
 
 Fourteenth. Travehng expenses of officers and others under orders. 
 
 Fifteenth. Funeral expenses. 
 
 Sixteenth. Store and office rent, fuel, commissions, and pay of clerks to 
 navy-agents and store-keepers. 
 
 Seventeenth. Flags, awnings, and packing-boxes. 
 
 Eighteenth. Premiums and other expenses of recruiting. 
 
 Nineteenth. Apprehending deserters. 
 
 Twentieth. Per-diem pay to persons attending courts-martial, courts of 
 inquiry, and other services authorized by law. 
 
 Twenty-ffi'st. Pilotage and towage of vessels, and assistance to vessels 
 in distress. 
 
 Twenty-second. Bills of health and quarantine expenses of vessels of the 
 United States Navy in foreign ports. — (22 June, 1860, c. 181, s. 1, v. 12, p. 81.) 
 See sections 429 and 430, Revised Statutes, and laws noted thereunder. 
 
 Sec. 3667. [Estimates of claims on naval pension fund.] The Secretary of 
 the Navy shall annually submit to Congress estimates of the claims and de- 
 mands chargeable upon and payable out of the naval pension fund. — (17 July, 
 1870, c. 238, V. 16, p. 222.) 
 
 See sections 4647, 4750-4757, Revised Statutes, See sections 429 and 430, Revised Statutes, 
 
 as to naval pension fund. 
 
 and laws noted thereunder. 
 
 Sec. 3669. [Estimates submitted through Secretary of the Treasury.] All 
 annual estimates for the public service shall be submitted to Congress through 
 the Secretary of the Treasury, and shall be included in the book of estimates 
 prepared under his direction. — (2 Sept., 1789, c. 12, s. 2, v. 1, p. 65. 10 Mar., 
 1800, c. 58, V. 2, pp. 79, 80. 7 Jan., 1846, Res. 2, v. 9, p. 108. 4 Aug., 1854, 
 c. 242, s. 15, V. 10, p. 573. 18 May, 1865, c. 85, s. 4, v. 14, p. 49. 20 June, 
 1874, c. 328, V. 18, pp. 96, 109, 111. 3 Mar., 1875, c. 129, v. 18, pp. 355, 370. 
 15 Aug., 1876, c. 289, s. 4, v. 19, p. 200.) 
 
 See sections 429 and 430, Revised Statutes, and laws noted thereunder. 
 
 Sec. 3672. [Proceeds of sales.] A detailed statement of the proceeds of 
 all sales of old material, condenmed stores, supplies, or other public property 
 of any kind [except materials, stores, or supplies sold to officers and soldiers 
 
 1103 
 
See sections 429 and 430, Revised Statutes, and 
 laws noted thereunder. 
 
 Sec. 3679. Pt. 2. REVISED STATUTES. Appropriations. 
 
 of the Army, or to exploring or surveying expeditions authorized by hxw] 
 shall be inoluded in the appendix to the book of estimates. — (8 May, 1872, c. 
 140, s. 5, V. 17, p. 83. 27 Feb., 1877, c. 69, v. 19, p. 249.) 
 
 This section is reproduced above as it appears 
 in the second edition of the Re\dsed 
 Statutes. The words enclosed in brackets 
 were inserted in the original section by 
 act of February 27, 1877 (19 Stat., 249). 
 
 Sec. 3673. [Money requisitions for War and Navy Departments.] All 
 moneys appropriated for the use of the War and Navy Departments shall be 
 drawn from the Treasury, by warrants of the Secretary of the Treasury, upon 
 the requisitions of the Secretaries of those Departments, respectively, coun- 
 tersigned by the Second Comptroller of the Treasury, and registered by the 
 proper Auditor. — (3 Mar., 1817, c. 45, ss. 5, 9, v. 3, p. 367. 7 May, 1822, c. 
 90, s. 3, V. 3, p. 689. 4 Mar., 1874, c. 44, v. 18, p. 19.) 
 
 Amendment to this section was made by act of | issue reqiiisitions for advances to disbiu*sing 
 
 July 31, 1894, section 4 (28 Stat., 205), 
 which abolished the office of Second Comp- 
 troller of the Treasury and created the 
 office of Comptroller of the Treasury. 
 
 By act of June 19, 1878 (20 Stat., 167-168), the 
 Secretary of the Na\'y was authorized to 
 
 ofiicers under a "General account of ad- 
 vances," not to exceed the total appropria- 
 tion for the Navy, the amount so advanced 
 to be charged to the proper appropriation 
 and to be returned to ' ' General accoimt of 
 advances" by pay and counter- warrant. 
 
 Sec. 3676. [Appropriations for the Navy, how controlled.] All appro- 
 priations for specific, general, and contingent expenses of the Navy Depart- 
 ment shall be under the control and expended by the direction of the Secretary 
 of the Navy, and the appropriation for each Bm^eau shall be kept separate in 
 the Treasury.— (5 July, 1862, c. 134, s. 5, v. 12, p. 511.) 
 
 When one bureau of the War or Navy Depart- 
 ments procures materials or performs serv- 
 ices for another bureau of such Departments, 
 the funds of the bureau or Department for 
 which the materials are to be procured or 
 the service performed, may be placed sub- 
 ject to the requisition of the biu"eau or De- 
 partment making the procurement or per- 
 
 forming the service for direct expenditure 
 by it. (Act Mar. 4, 1915, 38 Stat., 1084.) 
 
 See note to section 3673, Revised Statutes, as to 
 "General account of advances," and note 
 to section 3689, as to "Naval supply 
 account fund." 
 
 See note to section 419, Revised Statutes, under 
 "Duties of the various bureaus." 
 
 Sec. 3678. [Application of moneys appropriated.] All sums appropriated for 
 the various branches of expenditure in the public service shall be applied solely 
 to the objects for wliich they are respectively made, and for no others. — (3 Mar., 
 1809, c. 28, s. 1, V. 2, p. 535. 12 Feb., 1868, c. 8, s. 2, v. 15, p. 36.) 
 
 "Pay of the Navy " shall hereafter be used only for its legitimate purpose, as provided by law. 
 (Act June 19, 1878, 20 Stat., 167.) 
 
 Sec. 3679. [No expenditures beyond appropriations ; voluntary services prohib- 
 ited.] No Executive Department or other Government establishment of the 
 United States shall expend, in any one fiscal year, any sum in excess of appro- 
 priations made by Congress for that fiscal year, or involve the Government in any 
 contract or other obligation for the future payment of money in excess of such 
 appropriations unless such contract or obligation is authorized by law. Nor 
 shall any Department or any officer of the Government accept voluntary service 
 for the Government or employ personal service in excess of that authorized by 
 law, except in cases of sudden emergency, involving the loss of human life or the 
 destruction of property. All appropriations made for contingent expenses or 
 other general purposes, except appropriations made in fulfillment of contract 
 
 1104 
 
Appropriations. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 3683. 
 
 obligations expressly authorized by law, or for objects required or authorized by 
 law without reference to the amounts annually appropriated therefor, shall, on or 
 before the beginning of each fiscal year, be so apportioned by monthly or other 
 allotments as to prevent expenditures in one portion of the year which may neces- 
 sitate deficiency or additional appropriations to complete the service of the fiscal 
 year for which said appropriations are made; and all such apportionments shall 
 be adhered to and shall not be waived or modified except upon the happening 
 of some extraordinary emergency or unusual circimistance which could not 
 be anticipated at the time of making such apportionment, but this provision 
 shall not applj^ to the contingent appropriations of the Senate or House of 
 Representatives; and in case said apportionments are waived or modified as 
 herein provided, the same shall be waived or modified in ■uTiting by the head 
 of such Executive Department or other Government establishment having 
 control of the expenditure, and the reasons therefor shall be fully set forth in 
 each particular case and communicated to Congress in connection with esti- 
 mates for any additional appropriations required on account thereof. Any 
 person violating any provision of this section shall be summarily removed from 
 office and may also be punished by a fine of not less than one hundred dollars 
 or by imprisonment for not less than one month. 
 
 This section was expressly amended and re- tain pro\dsions of the act of February 27, 
 
 enacted to read as above by act of Febru- 1906 (34 Stat., 49), by vAich section 3679 
 
 ary 27, 1906, section 3 (34 Stat., 49). was reenacted to read as above set forth. 
 
 Seeact August 23, 1912, section 6 (37 Stat., 414), See sections 3732 and 3733, Revised Statutes, 
 
 as to apportionment of contingent funds of and act March 4, 1909, section 98 (35 Stat., 
 
 Departments, which expressly modifies cer- 1106). 
 
 Sec. 3681. [Expenses of commissions and inquiries.] No accounting or dis- 
 bursing officer of the Government shall allow or pay any account or charge 
 whatever, groAving out of, or in any way connected with, any commission or 
 inquiry, except courts-martial or courts of inquiry in the military or naval 
 service of the United States, until special appropriations shall have been made 
 by law to pay such accounts and charges. This section, however, shall not 
 extend to the contingent fund connected with the foreign intercourse of the Gov- 
 ernment, placed at the disposal of the President. — (26 Aug., 1842, c. 202, s. 
 25, V. 5, p. 533.) 
 
 See act of March 4, 1909 (35 Stat., 1027), as to 
 payment of compensation or expenses of 
 any commission, council, board, or other 
 similar body, unless authorized by law. 
 
 See section 1624, Revised Statutes (Articles for 
 the Government of the Navy), as to courts- 
 martial and courts of inquiry in the naval 
 service. 
 
 Sec. 3682. [Contingent funds ; clerical services.] No moneys appropriated 
 for contingent, incidental, or miscellaneous pm-poses shall be expended or paid 
 for official or clerical compensation. — (12 July, 1870, c. 251, s. 3, v. 16, p. 250.) 
 
 See act of August 5, 1882, section 4 (22 Stat., 
 255), as to use of contingent funds for cleri- 
 cal services; and act of August 23, 1912, sec- 
 tion 5 (37 Stat., 414), as to penalty for vio- 
 lation of the former act. 
 
 See notes to sections 169 and 416, Revised 
 Statutes. 
 
 Sec. 3683. [Contingent funds ; purchases from.] No part of the contingent 
 fund appropriated to any Department, Bureau, or office, shall be applied to the 
 purchase of any articles except such as the head of the Department shaU deem 
 necessary and proper to carry on the business of the Department, Bureau, or 
 
 1105 
 
Sec. 3689. 
 
 Pt. 2. REVISED STATUTES. 
 
 Appropriations. 
 
 office, and shall, by written order, direct to be procured. — (26 Aug., 1842, c. 
 202, s. 19, V. 5, p. 527.) 
 
 Sec. 3686. [Appropriations for foreign hydrographic surveys.] All appro- 
 priations made for tlie preparation or publication of foreign hydrographic 
 surveys shall only be applicable to their object, upon the approval by the 
 Secretary of the Navy, after a report from three competent naval officers, to 
 the effect that the original data for proposed charts are such as to justify their 
 publication; and it is hereby made the duty of the Secretary of the Navy to 
 order a board of three naval officers to examine and* report upon the data, 
 before he shall approve of any application of money to the preparation or 
 publication of such charts or hydrographic surveys. — (21 Feb., 1861, c. 49, s. 
 7, V. 12, p. 150.) 
 
 A pro\dsion substantially identical ■with this See sections 431-433, Revised Statutes, and 
 section was embodied in the public print- 
 ing and binding act of January 12, 1895, 
 section 78 (28. Stat., 621). 
 
 Sec. 3689. [Permanent indefinite appropriations.] There are appropriated, 
 out of any moneys in the Treasury not otherwise appropriated, for the purposes 
 hereinafter specified, such sums as may be necessary for the same respectively; 
 and such appropriations shall be deemed permanent annual appropriations. 
 
 See sections 431-433, 
 notes thereto. 
 
 UNDER THE NAVY DEPARTMENT. 
 
 Indemnity to seamen and marines for lost clothing : 
 
 To allow and pay to each person, not an officer, employed on a vessel of the 
 United States, sunk or otherwise destroyed, and whose personal effects have 
 been lost, a sum not exceeding sixty dollars. In the event of the death of 
 the person, this sum is to be paid to his proper legal representatives. — (4 July, 
 1864, c. 248, ss. 2, 3, v. 13, p. 390.) 
 Prize-money to captors: 
 
 For one moiety of the proceeds of prizes captured by vessels of the United 
 States, to be distributed to the officers and crews thereof, in conformity to 
 the provisions of Title "Prize;" also, the proceeds of derelict and salvage cases 
 adjudged by the courts of the United States to salvors. — (30 June, 1864, c. 
 174, s. 16, V. 13, p. 311.) 
 
 The omitted portions of this section do not 
 relate to the Navy Department. 
 Indemnity for seamen and marines, lost 
 clothing. — The provision of this section for 
 indemnity to seamen and marines for lost 
 clothing was to provide reimbursement in the 
 cases authorized by section 288, Revised 
 Statutes. That section was expressly repealed 
 (see note thereunder) by act of October 6, 1917 
 (40 Stat., 390), which act also provided that "in 
 cases involving persons in the Navy reimburse- 
 ment in money shall be made from the appro- 
 priation ' Pay of the Navy, ' and reimbursement 
 in kind shall be made from the appropriation 
 'outfits on first enlistment,' and in cases in- 
 volving persons in the Marine Corps reimburse- 
 ment in money shall be made from the appro- 
 priation ' Pay, Marine Corps, ' and reimburse- 
 ment in kind shall be made from the appro- 
 
 f)riation ' Clothing, Marine Corps, ' respective- 
 y, current at the time the claim covering such 
 loss, damage, or destruction is paid. " 
 
 Prize money to captors. — The provision of 
 this section to cover payment of prize money to 
 captors was superseded by the naval personnel 
 act of March 3, 1899, section 13 (30 Stat., 1007), 
 which repealed "all provisions of law author- 
 izing the distribution among captors of the 
 whole or any portion of the proceeds of vessels, 
 or any property hereafter captured, condemned 
 as prize. " 
 
 Naval hospital fund. — By sections 1614, 
 4808, and 4809, Revised Statutes, and act of 
 June 7, 1900 (31 Stat., 697), provision was 
 made for a fund for the maintenance of naval 
 hospitals, known as the "Naval hospital fund. " 
 Expenses of discharged naval prison- 
 ers.— By act of March 3, 1909 (35 Stat., 756), 
 
 1106 
 
Appropriations . 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 3691. 
 
 pro\-ision was made for pajinent of expenses of 
 discharged naval prisoners from fines and for- 
 feitures imposed by naval courts-martial, 
 modifying the laws aisove quoted \\'ith respect 
 to the naval hospital fund, as such fines and 
 forfeitm-es had previously gone in their en- 
 tirety to the latter fund. 
 
 Profits on sales from ships' stores. — By 
 act of June 24, 1910 (36 Stat., 619), it was pro- 
 vided that profits on sales from ships ' stores in 
 the Navy may be expended in the discretion 
 of the Secretary of the Navy for the amusement, 
 comfort, and contentment of the enlisted force. 
 
 Receipts from post laundries, Marine 
 Corps.— See act of July 11, 1919 (41 Stat., 155- 
 156). 
 
 Clothing and small stores. — By acts of 
 February 14, 1879 (20 Stat., 288), and June 30, 
 1890 (26 Stat., 197), a "clothing and small 
 stores fund" was credited for the Na-vy, to be 
 credited with the value of issues of clothing 
 and small stores, the resources of the fund to be 
 used in the purchases of supplies of clothing 
 and small stores for issue. This fund was in- 
 creased by acts of June 8, 1898 (30 Stat., 439), 
 and Januarj' 5, 1899 (30 Stat., 781). 
 
 By naval appropriation act of June 4, 1920 
 (41 Stat., 815), it was provided that "during 
 the fiscal year ending June 30, 1921, the cloth- 
 ing and small stores fund shall be charged with 
 
 the value of all issues of clothing and small 
 stores made to enlisted men and apprentice 
 seamen rec}uired as outfits on first enlistment, 
 not to exceed $100 each, and for civilian cloth- 
 ing not to exceed $15 per man to men given 
 discharges for bad conduct, undesirability, 
 or inaptitude, and the uniform gratuity paid 
 to officers of the Naval Reserve Force." 
 
 See also section 3692, Revised Statutes, as 
 amended. 
 
 Naval suppy account fund shall be charged 
 with the cost of all stores procured for and cred- 
 ited with the value of all issues or sales made 
 from the naval supply account. (Act Mar. 1, 
 1921, 41 Stat., 1169; see also acts June 25, 1910, 
 36 Stat., 792; Mar. 4, 1911, 36 Stat., 1279; June 
 30, 1914, 38 Stat., 405.) 
 
 Naval pension fund. — See section 4750, 
 Revised Statutes, and note thereto. 
 
 Navy petroleum fund. — See act of August 
 25, 1914 (38 Stat., 709). 
 
 Permanent appropriations defined. — As 
 to what appropriations are to be construed as 
 permanent, or available continuously without 
 reference to a fiscal year, see act of August 24, 
 1912, section 7 (37 Stat., 487). 
 
 Reserve material, Navy. — See acts of 
 March 4, 1917 (39 Stat., 1183), and June 15, 
 1917 (40 Stat., 211). 
 
 Sec. 3690. [Expenditure of balances of appropriations.] All balances of 
 appropriations contained in the annual appropriation bills and made specifically 
 for the service of any fiscal year, and remaining miexpended at the expiration 
 of such fiscal year, shall only be applied to the payment of expenses properly 
 incurred during that year, or to the fulfillment of contracts properly made 
 within that year; and balances not needed for such purposes shall be carried 
 to the surplus fund. This section, however, shall not apply to appropriations 
 known as permanent or indefinite appropriations. — (12 July, 1870, c. 251, s. 5, 
 V. 16, p. 2.51.) 
 
 See note to section 3691, Revised Statutes. 
 
 Sec. 3691. [Disposal of balances after two years.] All balances of appro- 
 priations which shall have remained on the books of the Treasury, without 
 being drawn against in the settlement of accounts, for two years from the date 
 of the last appropriation made by law, shall be reported by the Secretary of the 
 Treasury to the Auditor of the Treasury, whose duty it is to settle accounts 
 thereunder, and the Auditor shall examine the books of his Office, and certify 
 to the Secretary whether such balances will be required in the settlement of 
 any accounts pending in liis office; and if it appears that such balances wWl not 
 be required for this purpose, then the Secretary may include such balances in 
 his surplus-fund warrant, whether the head of the proper Department shall 
 have certified that it may be carried into the general Treasury or not. But 
 no appropriation for the payment of the interest or principal of the public debt, 
 or to which a longer duration is given by law, shall be thus treated. — (Ibid., 
 s. 6. 20 June, 1874, c. 328, v. 18, p. 110.) 
 
 Other provisions as to the disposition of unex- 
 pended balances of appropriations are 
 contained in acts of June 20, 1874, section 
 
 5 (18 Stat., 110), Julv 26, 1886, section 2 
 (24 Stat., 157), and August 24, 1912, sec- 
 tion 7 (37 Stat., 487). 
 
 1107 
 
Sec. 3692. 
 
 Pt. 2. REVISED STATUTES. 
 
 Appropriations. 
 
 The reappropriation aiul diversion of the 
 unexpended l)alance of any appropriation 
 to a purpose other than that for which it 
 was orifirinallv made shall be construed 
 
 and accounted as a new appropriation, and 
 the unexpended ])alance shall be reduced 
 by the sum proposed to be so diverted. 
 (Act Mar. 4, 1915, sec. 4, 38 Stat., 1161.) 
 
 Sec. 3692. [Proceeds of sales, condemned clothing, etc.] All moneys 
 received from the leasing or sale of marine hospitals, or the sale of revenue- 
 cutters, or from the sale of commissary stores to the officers and enlisted men 
 of the Army, [or from the sale of materials, stores, or supplies sold to officers 
 and soldiers of the Army,] or from sales of condemned clothing of the Navy, or 
 from sales of materials, stores, or supplies to any exploring or surveying expe- 
 dition authorized by law, shall respectively revert to that appropriation out of 
 which they were originally expended, and shall be applied to the purposes for 
 which they are appropriated by law. — (3 Mar., 1847, c. 48, s. 1, v. 9, p. 171. 
 20 April, i866, c. 63, ss. 1, 2, v. 14, p. 40. 28 July, 1866, c. 299, s. 25, v. 14, 
 p. 336. 8 May, 1872, c. 140, s. 5, v. 17, p. 83. 8 June, 1872, c. 348, v. 17, p. 
 337. 3 3/ar.," 1875, c. 130, v. 18, p. 388. 3 Mar., 1875, c. 131, v. 18, p. 410. 
 27 Feb., 1877, c. 69, v. 19, p. 249.) 
 
 This section is reproduced above as it appears were inserted in the original section by 
 
 in the second edition of the ReAased Stat- act of February 27, 1877 (19 Stat., 249). 
 
 utes. The words inclosed in brackets See note to section 3689, Revised Statutes. 
 
 1108 
 
TITLE XLIII. 
 
 PUBLIC CONTRACTS. 
 
 Sec. 
 
 3709. Advertisernfints for proposals. 
 
 3710. Opening bids. 
 
 3711. Inspection of fuel in the District of Colum- 
 
 bia. 
 
 3712. Appointments to be notified to account- 
 
 ing officer. 
 
 3713. No payment ^vithout certificate. 
 
 3714. Contracts for military or naval service. 
 
 3718. Naval supplies; advertisements; lowest 
 
 bidder; security. 
 
 3719. Guarantee of bid; delinquent bidder; 
 
 new contract. 
 
 3720. Delinquent contractor; penalty. 
 
 3721. Purchases without advertisement. 
 
 3722. Rejection of bids; not manufacturers or 
 
 regular dealers; etc. Opening bids. 
 
 3723. Contracts for foreign supplies; adver- 
 
 tisement, etc. 
 
 3724. Rejection of excessive bids. 
 
 3725. Hemp; American growth or manufacture. 
 
 3726. Preserved meats; butter; etc. 
 
 3727. Flour and bread. 
 
 3728. Home manufactures preferred; purchase 
 
 of fuel. 
 
 3729. Bunting. 
 
 3730. Relinquishment of reservations on deliv- 
 
 eries. 
 
 3731 . Name of contractor to appear on supplies. 
 
 3732. Unauthorized contracts; inadequate ap- 
 
 propriation; exceptions. 
 
 3733. Erection, repair, or furnishing of build- 
 
 ings and improvements; specific ap- 
 propriation required. 
 
 3734. Restrictions on new buildings. 
 
 3735. Contracts limited to one year. 
 
 3736. Restriction on purchases of land. 
 
 3737. No transfer of contract. 
 
 3738. Eight hours to be day's work. 
 
 3739. Members of Congress not to be interested 
 
 in contracts. 
 
 3740. What interest Members of Congress may 
 
 have. 
 
 3741. Stipulation that no Member of Congress 
 
 has an interest. 
 
 3742. Officer making contract with Member of 
 
 Congress; penalty. 
 
 3743. Contracts to be filed with Auditors. 
 
 3744. Contracts to be in writing; copy filed in 
 
 Returns Office. 
 
 3745. Oath to copy of contract. 
 
 3746. Penalty for omitting returns. 
 
 3747. Instructions to officers making contracts. 
 
 Sec. 3709. [Advertisements for proposals.] All purchases and contracts for 
 supplies or services, in any of the Departments of the Government, except for 
 personal services, shall be made by advertising a sufficient time previously for 
 proposals respecting the same, when the public exigencies do not require the 
 immediate delivery of the articles, or performance of the service. When imme- 
 diate deHvery or performance is required by the public exigency, the articles or 
 service required may be procured by open purchase or contract, at the places 
 and in the manner in which such articles are usually bought and sold, or such 
 services engaged, between individuals. — (2 Mar., 1861, c. 84, s. 10, v. 12, p. 220. 
 22 June, 1874, c. 389, v. 18, j^. 177.) 
 
 This section was expressly amended by act of 
 January 27, 1894 (28 Stat., 33), by adding 
 thereto the following: "And the advertise- 
 ment for such proposals shall be made by all 
 the Executive Departments, including the 
 Department of Labor, the United States 
 Fish Commission, the Interstate Commerce 
 Commission, the Smithsonian Institution, 
 the Government Printing Ofiice, the gov- 
 ernment of the District of Columbia, and 
 the superintendent of the State, War, and 
 Navy building, except for paper and mate- 
 rials for use of the Government Printing 
 Office, and materials used in the work of 
 the Bureau of Engraving and Printing, 
 
 which shall continue to be advertised for 
 and purchased as now provided by law, on 
 the same days and shall each designate two 
 o'clock post meridian of such days for the 
 opening of all such proposals in each De- 
 partment and other Government establish- 
 ments in the city of Washinoton; and the 
 Secretary of the Treasury shall designate 
 the day or days in each year for the opening 
 of such proposals and give due notice there- 
 of to the other Departments and Govern- 
 ment establishments. Such proposals shall 
 be opened in the usual way and schedules 
 thereof duly prepared and, together with 
 the statement of the proposed action of 
 
 1109 
 
Sec. 3713. 
 
 PL 2. REVISED STATUTES. 
 
 Contracts. 
 
 each Department and Government estiib- 
 lishment thereon, sliall be submitted to a 
 board, consi^tinu; of one of the Assistant 
 Secretaries of the Treasury and Interior 
 Departments and one of the Assistant 
 Postmasters General, who shall be desip;- 
 nated by the heads of said Departments 
 and the Postmaster General, respectively, 
 at a meeting; to be called by the official of 
 the Treasury Department, who shall be 
 chairman thereof, and said board shall 
 carefully examine and compare all the 
 proposals so suV)mitted and recommend 
 the acceptance or rejection of any or all of 
 said proposals. And if any or all of such 
 proposals shall be rejected, advertisements 
 for proposals shall again be invited and 
 proceeded with the in same manner." 
 Further amendment was made by act of April 
 21, 1894 section 2 (28 Stat., 62), which 
 provided that said amendatory act of Jan- 
 uary 27, 1894, above quoted, "be, and the 
 same is hereby, so amended that the pro- 
 visions thereof shall apply only to adver- 
 
 tisements for proposals for fuel, ice, sta- 
 tionery and other miscellaneous supplies to 
 be purchased at Washington for the use of 
 the Executive Departments and other Gov- 
 ernment establishments therein named; 
 and no advertisements made or contract 
 awarded or to be awarded thereon since 
 January twenty-seven, eighteen hundred 
 and ninety-four, in accordance with the 
 laws in force prior to said date, shall be de- 
 clared to be illegal or invalid for non-com- 
 pliance with said law of January twenty- 
 seventh, eighteen hundred and ninety- 
 four." 
 
 Section 3709, Re\Tsed Statutes, as thus amend- 
 ed, was expressly modified by act of June 
 17, 1910, section 4 (36 Stat., 531), which 
 contained new proAosiona as to the procure- 
 ment of supplies for the Executive Depart- 
 ments and other Government establish- 
 ments in Washington. 
 
 As to publication of advertisements in news- 
 papers, etc., see sections 3718, 382G, and 
 3828, Revised Statutes. 
 
 Sec. 3710. [Opening bids.] Whenever proposals for supplies have been 
 solicited, the parties responding to such solicitation shall be duly notified of the 
 time and place of opening the bids, and be permitted to be present either in 
 person or by attorney, and a record of each bid shall then and there be made. — 
 (31 Jan., 1868, Res. 8, v. 15, p. 246.) 
 
 See sections 3718 and 3722, Revised Statutes. 
 
 Sec. 3711. [Inspection of fuel in the District of Columbia.] It shall not be 
 lawful for any officer or person in the civil, military, or naval service of the 
 United States in the District of Columbia to purchase anthracite or bituminous 
 coal or wood for the pubfic service except on condition that the same shall, 
 before delivery, be inspected and weighed or measured by some competent 
 person, to be appointed by the head of the department or chief of the branch of 
 the service for which the pm'chase is made from among the persons authorized 
 to be employed in such department or branch of the service. The person ap- 
 pointed under this section shall ascertain that each ton of coal weighed by him 
 shall consist of two thousand two hundred and forty pounds, and that each 
 cord of wood to be so measured shall be of the standard measure of one hundred 
 and twenty-eight cubic feet. Each load or parcel of wood or coal weighed and 
 measured by him shall be accompanied by his certificate of the number of tons 
 or pounds of coal and the number of cords or parts of cords of wood in each load 
 or parcel. 
 
 This section was expressly amended and re- 
 enacted to read as above by act of March 
 15, 1898, section 6 (30 Stat., 316). 
 
 See section 3728, Revised Statutes, and acts 
 of May 28, 1908, section 2 (3-5 Stat., 424), 
 and October 20, 1914 (38 Stat., 741), as to 
 coal for the Navy. 
 
 Sec. 3712. [Appointments to be notified to accounting officer.] The proper 
 accounting officer of the Treasury shall be furnished with a copy of the ap- 
 pointment of each inspector, weigher, and measurer appointed under the pre- 
 ceding section. — (Ibid., s. 2.) 
 
 Sec. 3713. [No payment without certificate.] It shall not be lawful for any 
 accounting officer to pass or allow to the credit of any disbursing officer in the 
 
 1110 
 
See section 3743, Re\'ised Statutes, as amended, 
 with respect to filing of contracts in the 
 Treasury Department. 
 
 See generally section 418, Revised Statutes, 
 and note thereto. 
 
 See act of March 4, 1917 (39 Stat., 1193), and 
 note to act of August 3, 1886 (24 Stat., 
 215), as to changes in contracts. 
 
 Contracts. Pt. 2. REVISED STATUTES. Sec. 3718. 
 
 District of Columbia any money paid by him for pm'chase of anthracite or 
 bituminous coal or for wood, unless the voucher therefor is accompanied by a 
 certificate of the proper inspector, weigher, and measurer that the quantity 
 paid for has been determined by such officer. — (Ibid.) 
 
 Sec. 3714. [Contracts for military or naval service.] All purchases and con- 
 tracts for supplies or services for the military and naval service shall be made 
 by or under the direction of the chief officers of the Departments of War and 
 of the Navy, respectively. [And all agents or contractors for supplies or service 
 as aforesaid shall render their accounts for settlement to the accountant of 
 the proper department for which such supplies or services are required, subject, 
 nevertheless, to the inspection and revision of the officers of the Treasury in the 
 manner before prescribed.] — (16 July, 1798, c. 85, s. 3, v. 1, p. 610. 27 Feb., 
 1877, c. 69, V. 19, p. 249. U. S. v. Adams, 7 Wall., 463; Parish v. U. S., 8 
 Wall., 489.) 
 
 This section is reproduced above as it appears 
 
 in the second edition of the Revised 
 
 Statutes. The words enclosed in brackets 
 
 were added to the original section bv act 
 
 of February 27, 1877 (19 Stat., 249). 
 See sections 5i2-.51.5, and 3744-3747, Revised 
 
 Statutes, as to filing of copies of contracts 
 
 in the Returns Office of the Interior De- 
 partment. 
 
 Sec. 3718. [Naval supplies ; advertisements ; lowest bidder; security.] All 
 provisions, clothing, hemp, and other materials of every name and nature, for 
 the use of the Navy, and the transportation thereof, when time will permit, 
 shall be furnished by contract, by the lowest bidder, as follows : In the case of 
 provisions, clothing, hemp, and other materials, the Secretary of the Navy 
 shall advertise, once a week, for at least four weeks, in one or more of the 
 principal papers published in the place where such articles are to be furnished, 
 for sealed proposals for furnishing the same, or the whole of any particular 
 class thereof, specifying the classes of materials and referring bidders to the 
 several chiefs of Bureaus, who will furnish them with printed schedules, givmg 
 a full description of each and every article, with dates of delivery, and so forth. 
 In the case of transportation of such articles, he shall advertise for a period of 
 not less than five days. All such proposals shall be kept sealed until the day 
 specified in such advertisement for opening the same, when they shall be 
 opened by or under the direction of the officer making such advertisement, in 
 the presence of at least two persons. The person offering to furnish any class 
 of such articles, and giving satisfactory security for the performance thereof, 
 under a forfeiture not exceeding twice the contract price in case of failure, 
 shall receive a contract for furnishing the same. — (3 Mar., 1843, c. 83, v. 5, p, 
 617. 28 Sept., 1850, c. 80, s. 1, v. 9, p. 513. 5 Aug., 1854, c. 268, s. 1, v. 10, 
 p. 585. 17 April, 1866, c. 45, s. 4, v. 14, p. 38.) 
 
 Amendment to this section was made by act of 
 June 30, 1890 (26 Stat., 197), which pro- 
 \T.ded that said section ' ' is hereby amended 
 by striking out the words 'once a week for 
 foiu" weeks' and inserting in lieu thereof 
 the words 'twice a week for two weeks or 
 longer, not to exceed four weeks, in the 
 discretion of the Secretary of the Navy.' " 
 It was again amended by act of July 19, 
 
 1892 (27 Stat., 243), which pro^dded that 
 this section, as amended by the act of June 
 30, 1890, is hereby amended so as to read, 
 "twice a week for two weeks or longer, not 
 to exceed four weeks, or once a week for 
 four weeks, in the discretion of the Secre- 
 tary' of the Na\-v. " It was fiu-ther amended 
 by act of March 3, 1893 (27 Stat., 724), 
 which provided that said section 3718, 
 
 1111 
 
Sec. 3719. 
 
 Pt. 2. REVISED STATUTES. 
 
 Contracts. 
 
 Rev-ised Statutes, as amended by the act of 
 
 July 19, 1892, is hereby amended so as to 
 
 reaci, ' ' twice a week for two weeks or longer, 
 
 not to exceed four w'eeks, or once a week 
 
 for two weeks or lonsier, not to exceed four 
 
 weeks, in the discretion of the Secretary of 
 
 the Na\'y." 
 Advertisino' in newspapers: See sections 3709, 
 
 3820, and 3828, Rev-ised Statutes. 
 Advertising not required in certain cases: See 
 
 section 3721, Revised Statutes, and note 
 
 thereto. 
 Exchange of tj-pewriters, adding machines, and 
 
 other similar labor-sa\dng devices in part 
 
 payment for new machines used for the 
 
 same purpose, was authorized bv act of 
 
 March 4, 1915, section 5 (38 Stat., '1161). 
 Lowest bidder: See sections 3721, 3722, and 
 
 3724, Re\ised Statutes, and notes there- 
 to. 
 Naval Supply Account shall govern the charg- 
 ing, crediting, receipt, piu'chase, transfer, 
 
 manufacture, repair, issue, and consump- 
 tion of all stores for the naval establishment, 
 
 with certain exceptions. (Acts June 25, 
 
 1910, SCi Stat., 792; Mar. 4, 1911, 36 Stat., 
 
 1279; June 30, 1914, 38 Stat., 405.) 
 Naval Supply Account Fimd shall be charged 
 
 with the cost of all stores prociu"ed for, and 
 
 credited with the value of all issues or sales 
 
 made from, the Naval Supply Accoimt. 
 
 (Act Mar. 1, 1921, 41 Stat., 1169.) 
 Officers of the NaA^^ or Marine Corps on the 
 
 active or retired list are forbidden to hold 
 
 employment with any person or company 
 
 furnishing naval supplies or war material 
 
 to the Government. (See act June 10, 1896, 
 
 29 Stat., 361.) See sections 3739-3742, 
 
 Re\'ised Statutes, and notes thereto, as to 
 
 Members of Congress interested in contracts. 
 Opening bids. — See sections 3710 and 3722, 
 
 Revised Statutes. 
 Open-market purchases for all branches of the 
 
 naval ser\ice, without formal contract or 
 
 bond are authorized where amount does 
 
 not exceed $500. (Act Mar. 2, 1907, 34 Stat., 
 
 1193). See also sections 3709 and 3729, 
 
 Rexised Statutes. 
 Proposals for manufactured articles shall spe- 
 cify standardized screw threads. (Act 
 
 July 18, 1918, sec. 2, 40 Stat., 913.) 
 Purchases of supplies shall be deemed to be for 
 
 the Navy, and not for any bureau thereof, 
 
 Sec. 3719. (Guarantee of bid; delinquent bidder; new contract.] Every 
 proposal for naval supplies invited by the Secretary of the Navy, under the 
 preceding section, shall be accompanied by a written guarantee, signed by one 
 or more responsible persons, to the effect that he or they undertake that the 
 bidder, if his bid is accepted, will, at such time as may be prescribed by the 
 Secretary of the Navy, give bond, with good and sufficient sureties, to furnish 
 the supplies proposed; and no proposal shall l^e considered, unless accom- 
 panied by such guarantee. If, after the acceptance of a proposal, and a 
 notification thereof to the bidder, he fails to give such bond within the time 
 prescribed by the Secretary of the Navy, the Secretary shall proceed to con- 
 tract with some other person for furnishing the supphes; and shall forthwith 
 cause the difference between the amount contained in the proposal so guar- 
 anteed and the amount for which he may have contracted for furnishing the 
 
 1112 
 
 and they shall be classified and issued 
 accordingly. (Act Mar. 2, 1891, 26 Stat., 
 807; act June 30, 1890, 26 Stat., 205.) 
 
 Regulations for the purchase, preservation, and 
 disposition of naval sujjplies are to be made 
 by the President. (Sec. 1549, R. S.; see 
 also sees. 161 and 1547, R. S.) 
 
 Reserve material. — "To prevent deterioration 
 materials purchased under the reserve ma- 
 terial Navy fimd shall be used as required 
 in time of' peace, and when so used reim- 
 bursement shall l)e made to this a])propiia- 
 tion from current naval appropriations in 
 order that additional stocks may be pro- 
 cured. (Act June 15, 1917, 40 Stat., 211.) 
 (This was a proxdso to an appropriation of 
 two million dollars made in the urgent de- 
 ficiency appropriation act of June 15, 1917 
 (40 Stat., 182, 211), under "Bureau of Sup- 
 plies and Accounts," subheading, "Re- 
 serve material, Na\'y," as follows: "For 
 procuring apparatus and materials (other 
 than ordnance materials and medical 
 stores), as a war reserve necessary to be 
 carried in the supply departments for the 
 piu"pose of fitting out vessels of the fleet 
 and merchant auxiliaries in time of war 
 or when, in the opinion of the President, a 
 national emergency exists." 
 
 Transfer of supplies between bureaus of the 
 Na\'y Department was authorized by act 
 of March 2, 1889 (25 Stat., 818); see also 
 act of March 4, 1915 (38 Stat., 1084). 
 
 Transfer of supplies between War and Navy- 
 Departments: See acts March 4, 1915 (38 
 Stat., 1084); February 25, 1919 (40 Stat., 
 1174); and July 11, 1919 (41 Stat., 132); 
 see also section 1135, Re^ised Statutes. 
 
 Transportation of supplies for the Navy is re- 
 quired to be in vessels of the United 
 States, except where freight charges are 
 excessive and unreasonable. (See act 
 Apr. 28, 1904, 33 Stat., 518.) 
 
 Transportation of fuel for the Na^^y; President 
 authorized to purchase vessels for such 
 transportation when charter prices are 
 excessive. (See act June 15, 1917, 40 
 Stat., 211; see also, act Mar. 3, 1915, 38 
 Stat., 944.) 
 
 Transportation of naval supphes by Army 
 transports; see act March 2, 1907 (34 Stat., 
 1170). 
 
Contracts. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 3721. 
 
 supplies, for the whole period of the proposal, to be charged up against the 
 bidder and his guarantor; and the same may be immediately recovered by 
 the United States, for the use of the Navy Department, in an action of debt 
 against either or all of such persons. — (10 Aug., 1846, c. 176, s. 6, v. 9, p. 101.) 
 
 This section was expressly amended by act of 
 May 25, 1896 (29 Stat., 136), which added 
 at the end of said section, the following: 
 ' 'Provided, That the Secretary of the Navy 
 may, in his discretion, accept, in lieu of 
 the written guaranty required to accom- 
 pany a proposal for naval supplies, and 
 in lieu of the bond required for the faith- 
 ful performance of a contract for furnishing 
 such supplies, a certified check, payable 
 to the order of the Secretary of the Navy, 
 for the full amount of such proposal or con- 
 tract, the check to be held by the Sec- 
 retary of the Na\'y until the reqmrements 
 of the proposal or contract shall be com- 
 plied with and as a guaranty for com- 
 pliance with the same." 
 
 Further amendment to this section, but 
 without express reference thereto, was 
 made by act of December 11, 1906 (34 
 Stat., 841), reading as follows: "That the 
 Secretary of the Na\^ may, in his dis- 
 cretion, accept, in lieu of the written 
 guaranty required to acccomjiany a pro- 
 posal for naval supplies, and in lieu of the 
 bond required for the faithful performance 
 of a contract for furnishing such su])plies, 
 a certified check, payable to the order of 
 the Secretary of the Navy, for from twenty- 
 five to fifty per centum of the amount of 
 such proposal or contract, the check to be 
 held by the Secretary of the Na\'y until 
 the requirements of the proposal or con- 
 tract shall be complied with and as a 
 guaranty for compliance with the same." 
 
 Sec. 3720. [Delinquent contractor; penalty.] All such proposals for naval 
 supplies shall be preserved and recorded, and reported by the Secretary of the 
 Navy to Congress at the commencement of every regular session. The report 
 shall contain a schedule embracing the offers by classes, indicating such as 
 have been accepted. In case of a failure to supply the articles or to perform 
 the work by the person entering into such contract, he and his sureties shall 
 be liable for the forfeiture specified in such contract, as liquidated damages, 
 to be sued for in the name of the United wStates. — (3 Mar., 1843, c. 83, v. 5, p. 
 617.) 
 
 Amendment to this section (and to sec. 429, 
 R. S.), was made by act of Jime 22, 1910 
 (36 Stat., 591), as follows: "That the second 
 clause of section foiu* hundred and twenty- 
 nine of the Revised Statutes of the United 
 States and the following words in section 
 thirty-seven himdred and twenty of the 
 
 Revised Statutes of the United States: 'and 
 reported by the Secretary of the Navy to 
 Congress at the commencement of every 
 regular session. The report shall contain a 
 schedule embracing the offers by classes, 
 indicating such as have been accepted,' be, 
 and the same are hereby, repealed." 
 
 Sec. 3721. [Purchases without advertisement.] The provisions which re- 
 quire that supplies shall be purchased by the Secretary of the Navy from the 
 lowest bidder, after advertisement, shall not apply to ordnance, gunpowder, or 
 medicines, or the supplies which it may be necessary to purchase out of the 
 United States for vessels on foreign stations, or bunting delivered for the use 
 of the Navy, or tobacco, or butter or cheese destined for the use of the Navy, 
 or things contraband of war. Contracts for butter and cheese for the use of 
 the Navy may be made for periods longer than one year, if, in the opinion 
 of the Secretary of the Navy, economy and the quality of the ration will 
 be promoted thereby. The Secretary of the Navy may enter into contracts 
 for tobacco, from time time, as the service requires, for a period not exceeding 
 four years; and in making such contracts he shall not be restricted to the 
 lowest bidder, unless, in his opinion, economy and the best interests of the 
 service will be thereby promoted. — (3 Mar., 1845, c. 77, s. 3, v. 5, p. 794. 
 3 Mar., 1847, c. 48, s. 2, v. 9, p. 172. 3 Aug., 1848, c. 121, s. 11, v. 9, p. 272. 
 2 Mar., 1865, c. 74, s. 7, v. 13, p. 467.) 
 
 1113 
 
Sec. 3724. 
 
 PL 2. REVISED STATUTES. 
 
 Contracts. 
 
 See section 3718, Revised Statutes, and laws 
 noted thereunder; and see section 3729, as 
 to purchases of Inuiting; see also section 
 3735, as to contracts being limited to 
 periods of one year. 
 
 Gun steel or armor for the Navy, purchase of, 
 without ])ublic competition, prohibited by 
 act of March 3, 1893 (27 Stat., 732). 
 
 Material for steam boilers, may be piuxiased 
 without advertising for bids. (Res. Jxme 
 14, 1878, 20 Stat., 253). 
 
 Shells or projectiles, except for experimental 
 purposes, are not to be purchased without 
 bids. (Act Mar. 4, 1913, 37 Stat., 890; act 
 June 30, 1914, 38 Stat., 398.) 
 
 Tobacco for the Navy is to be purchased after 
 advertisement, in the same manner as 
 other supplies. (Act June 10, 1896, 29 
 Stat., 370.) 
 
 See act of June 3, 1916, section 120 (39 Stat., 
 213), and laws noted thereunder, as to pro- 
 curement of material under exceptional 
 conditions. 
 
 Opening bids. — See sections 3710 and 3718, 
 Revised Statutes. 
 
 Sec. 3722. [Rejection of bids; not manufacturers or regular dealers; etc. 
 Opening bids.] The cliief of any Bureau of the Navy Department, in contract- 
 ing for naval supplies, shall be at liberty to reject the offer of any person who, 
 as principal or surety, has been a defaulter in any previous contract with the 
 Navy Department, Parties who have made default as principals or sureties 
 in any former contract shall not be received as sureties on other contracts ; nor 
 shall the copartners of any firm be received as sureties for such firm or for 
 each other; nor, in contracts with the same Bureau, shall one contractor be 
 received as surety for another. Every contract shall require the delivery of a 
 specified quantity, and no bids having nominal or fictitious prices shall be 
 considered. If more than one bid be offered by any one party, by or in the 
 name of his or their clerk, partner, or other person, all such bids may be re- 
 jected; and no person shall be received as a contractor who is not a manufac- 
 turer of, or regular dealer in, the articles which he offers to supply. All per- 
 sons offering bids shall have the right to be present when the bids are opened 
 and inspect the same. 
 
 See Bureaii of Supplies and Accoimts' file No. 
 385-PD, 385-10, March 12, 1919; and 385 
 PC, June 15, 1919; see also annuel report. 
 Paymaster General, 1920, page 20. 
 
 Sec. 3723. [Contracts for foreign supplies ; advertisement, etc.] No chief of a 
 Bureau shall make any contract for supplies for the Navy, to be executed in a 
 foreign country, except it be on first advertising for at least thirty days in two 
 daUy newspapers of the city of New York, inviting sealed bids for furnisliing 
 the supplies desired ; which bids shall be opened in the presence of the Secretary 
 of the Navy and the heads of two Bureaus; and contracts shall in all cases be 
 awarded to the lowest bidder; and paymasters for the Navy on foreign stations 
 shall render, when practicable, with their accounts, an official certificate from 
 the resident consul, or conmiercial or consular agent of the United States, if 
 there be one, to be furnished gratuitously, vouching that all pm-chases and 
 expenditures made by the paymasters were made at the ruling market-prices 
 of the place at the time of ourchase or expenditure. — (3 M.2iV., 1871, c. 117, s. 
 3, V. 16, p. 53.5.) 
 
 See note to section 3728, Revised Statutes. 
 
 Sec. 3724. [Rejection of excessive bids.] Where articles are advertised and 
 bid for in classes, and in the judgment of the Secretary of the Navy any one or 
 more articles appear to be bid for at excessive or unreasonable prices, exceed- 
 ing ten per centum above their fair market-value, he shall be authorized to 
 reject such bid.— (4 July, 1864, c. 252, s. 7, v. 13, p. 394.) 
 
 1114 
 
Contracts. PL r. REVISED S TAT LIES. Sec. 3730. 
 
 Amendment to this section, but A\-ithout ex- all awards of contracts for provisions for 
 
 press reference thereto, was made by act , the Navy shall be made by individual 
 
 of March 4, 1913 (37 Stat., 904), as follows: | items; the contract for each item being 
 
 "From and after the passage of this Act ' awarded to the lowest responsible bidder." 
 
 Sec. 3725. [Hemp ; American growth or manufacture.] All hemp, or prepara- 
 tions of hemp, used for naval pm'poses by the Government of the United States, 
 shall be of American growth or manufacture, when the same can be obtained of 
 as good C|uaiity and at as low a price as foreign hemp. — (14 July, 1862, c. 1G3, s. 
 11, V. 12, p. 554.) 
 
 See section 3718, and note to section 3728, Revised Statutes. 
 
 Sec. 3726. [Preserved meats ; butter ; etc.] Tlie Secretar}' of the Xavy is 
 authorized to procure the preserved meats, pickles, butter, and desiccated 
 vegetables, in such manner and under such restrictions and guarantees as in his 
 opinion' will best insure the good quality of said articles. — (18 July, 1861, c. 7, 
 s. 7, V. 12, p. 265.) 
 
 See section 3721, Revised Statutes, as to contracts for butter. 
 
 Sec. 3727. [Flour and bread.] The Secretary of the Nav}^ is authorized to 
 purchase, in such manner as he shall deem most advantageous to the Govern- 
 ment, the flour required for naval use; and to have the bread for the Navy 
 baked from this flour by special contract under naval inspection. — (3 Mar., 
 1863, c. 118, s. 4, V. 12, p. 818.) 
 
 Sec. 3728. [Home manufactures preferred ; purchase of fuel.] The Secretary 
 of the Navy, m makmg contracts and purchases of articles for naval purposes, 
 shall give the preference, all other things, including price and quality, being 
 equal, to articles of the growth, production, and manufacture of the United 
 States. In purchasing fuel for the Navy, or for naval stations and yards, the 
 Secretary of the Navy shall have power to discriminate and purchase, in such 
 manner as he may deem proper, that kind of fuel which is best adapted to the 
 purpose for which it is to be used. — (28 Sept., 1850, c. 80, s. 1, v. 9, pp. 513, 515.) 
 
 See section 3723 as to contracts for foreign sup- sec. 2, 24 Stat., 215, as amended by act 
 
 plies; section 3711, as to purchase of coal; 
 section 3732, as to purchase of fuel beyond 
 appropriations; act April 28, 1904 (33 Stat., 
 518), and section 3718, Revised Statutes, 
 as to transportation; act of June 15, 1917 
 (40 Stat., 211), as to transportation of fuel 
 for the Navy. 
 Domestic steel material to be used in construc- 
 tion of naval vessels. (Act Aug. 3, 1886, 
 
 May 4, 1898, 30 Stat., 390.) 
 
 Foreign war material may be purchased in 
 emergencies and imported free of duty. 
 (Act Mar. 4, 1913, 37 Stat., 896; see also 
 act June 30, 1914, 38 Stat.. 399.) 
 
 Foreign materials for construction or repair and 
 equipment of naval vessels mav be imported 
 %vithout dutv. (Act Oct. 3, 1913, sec. IV, 
 J, subsecs. 5, 6, 38 Stat., 196.) 
 
 Sec. 3729. [Bunting.] The Secretary of War, the Secretary of the Navy, and 
 the Secretary of the Treasury may enter into contract, in open market, for bunt- 
 ing of American manufactm-e, as their respective services require, for a period 
 not exceeding one year, and at a price not exceeding that at which an article 
 of ec^ual quaUty can be imported. — (2 ]VIar., 1865, c. 74, s. 7, v. 13, p. 467.) 
 
 See section 3709 and note to section 3718, Re- 
 vised Statutes, asto open-market jjurchases. 
 
 See section 3721, Re\ised Statutes, as to pur- 
 chase of bunting without advertisement. 
 
 Sec. 3730. [Relinquishment of reservations on deliveries.] The Secretary of 
 the Navy may rehnquish and pay all reservations of the ten per centum upon 
 deliveries made under contracts with the Nav}' Department, where these 
 reservations have arisen and the contracts have been afterward extended, or 
 
 54641°— 22 71 1115 
 
Sec. 3734. 
 
 PL 2. REVISED STATUTES. 
 
 Contracts. 
 
 where the contracts have been completed after the time of dehvery, by and 
 with the consent of the Department, or where the contracts have been dissolved 
 by the like consent, or have been terminated, or an extension thereof has been 
 prevented by operation of law, wliere no injury has been sustained by the 
 public service. — (17 June, 1844, c. 107, s. 5, v. 5, p. 703.) 
 
 Contraftors may be paid partial payments 1911, 37 Stat., 32; see also ser. 3648, R. S., 
 
 during progress of work (see act Aug. 22, and note thereto). 
 
 Sec. 3731. [Name of contractor to appear on supplies.] Every person who shall 
 furnish supplies of any kind to the Army or Navy shall be required to mark and 
 distinguish the same with the name of the contractor furnishing such supplies, 
 in such manner as the Secretary of War and the Secretary of the Navy may, 
 respectively, direct; and no supplies of any kind shall be received, unless so 
 marked and distinguished.— (17 July, 1862, c. 200, s. 15, v. 12, p. 596.) 
 
 Sec. 3732. [Unauthorized contracts; inadequate appropriation; exceptions. 
 Superseded.] 
 
 This section read as follows: 
 
 "Sec. 3732. No contract or purchase on 
 behalf of the United States shall be made, 
 unless the same is authorized by law or is under 
 an appropriation adequate to its fulfillment, 
 except in the War and Na\^ Departments, for 
 clothing, subsistence, forage, fuel, quarters, or 
 transportation, which, however, shall not 
 exceed the necessities of the current year." — 
 (2 Mar., 1861, c. 84, s. 10, v. 12, p. 220. The 
 Flovd Acceptances, 7 Wall., 666; Harvey v. 
 U. S., 8 C. Cls., 501.) 
 
 It was superseded by the follo%ving pro- 
 
 vision in the Army appropriation act of Jiine 
 12, 1906 (34 Stat., 240, 255): 
 
 "That no contract or purchase on behalf of 
 the United States shall be made unless the 
 same is authorized by law or is under an appro- 
 priation adequate to its fulfillment, except in 
 the War and Navy Departments, for clothing, 
 subsistence, forage, fuel, quarters, transporta- 
 tion, or medical and hospital supplies, which, 
 however, shall not exceed the necessities of the 
 current year." 
 
 See also section 3679, Revised Statutes, and 
 note thereto. 
 
 Sec. 3733. [Erection, repair, or furnishing of buildings and improvements; 
 specific appropriation required.] No contract shall be entered into for the 
 erection, repair, or furnishing of any public building, or for any public improve- 
 ment which shall bind the Government to pay a larger sum of money than the 
 amount in the Treasury appropriated for the specific purpose. — (25 July, 1868^ 
 c. 2.3.3, s. 3, V. 15, p. 177.) 
 
 See sections 355, 3663, and 3679, Revised Statutes, and Criminal Code, act March 4, 1909, 
 section 98 (35 Stat., 1106). 
 
 Sec. 3734. [Restrictions on new buildings,] And hereafter no money shall 
 be paid nor contracts made for payment for any site for a public buiUling in 
 excess of the amount specifically appropriated therefor; and no money shall be 
 expended upon any public building until after sketch plans showing the ten- 
 tative design and arrangement of such building, together with outline descrip- 
 tion and detailed estimates of the cost thereof shall have been made by the 
 Supervising Architect of the Treasury Department (except when otherwise 
 authorized by law) and said sketch plans and estimates shall have been approved 
 by the Secretary of the Treasury and the head of each executive department 
 who will have officials located in such building; but such approval shall not 
 prevent subsequent changes in the design, arrangement, materials, or methods 
 of construction or cost which may be found necessary or advantageous: Pro- 
 vided, That no such changes shall be made involving an expense in excess of 
 the limit of cost fixed or extended by Congress, and all appropriations made 
 for the construction of such building shall be expended within the limit of cost 
 
 so fixed or extended. 
 
 1116 
 
Contracts. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 3739. 
 
 This section was expressly amended and re- 
 enacted to read as above by act of June 25, 
 1910, section 33 (36 Stat., 699) relating to 
 public buildings under the control of the 
 Secretary of the Treasury. 
 
 By act of July 1, 1898 (30 Stat., 614), it was pro- 
 vided that '-All courthouses, customhouses, 
 post offices, appraiser's stores, barge offices, 
 subtreasuries, and other public buildings 
 outside of the District of Columbia and out- 
 side of military reservations * * * erected 
 or purchased out of any appropriation 
 under the control of the Treasury Depart- 
 ment, together with the site or sites thereof, 
 are hereby expressly declared to be under 
 the exclusive jurisdiction and control and 
 in the custody of the Secretary of the 
 
 Treasury, who shall have full power to take 
 possession of and assign and reassign rooms 
 therein to such Federal officials, clerks, and 
 employees as in his judgment and discre- 
 tion should be furnished with offices or 
 rooms therein." 
 
 That the word ''military" has been used in 
 other connections to include things pertain- 
 ing to the Navy, see act July 17, 1862, sec- 
 tion 17 (12 Stat., 596); section 1488, Re- 
 vised Statutes; act April 12, 1902, section 2 
 (32 Stat., 100); 31 Op. Atty. Gen., 445; 7 
 Op. Atty. Gen., 162; United States v. 
 North (112 U. S., 510); Stocker v. United 
 States (39 Ct. Cls., 300). 
 
 See section 3663, Revised Statutes, as to esti- 
 mates for public works. 
 
 Sec. 3736. [Contracts limited to one year.] It shall not be lawful for any of 
 the Executive Departments to make contracts for stationery or other supplies 
 for a longer term than one year from the time the contract is made. — (31 Jan., 
 1868, Res. No. 8, v. 15, p. 246. 24 Mar., 1874, Res. No. 6, v. 18, p. 286.) 
 
 See section 3721, Re\-ised Statutes, as to contracts for the Navy for periods exceeding one year. 
 
 Sec. 3736. [Restrictions on purchases of land.] No land shall be purchased 
 on account of the United States, except under a law authorizing such pur- 
 chase. — (1 May, 1820, c. 52, s. 7, v. .3, p. 568.— Neilson v. Lagow, 12 How., 98.) 
 See section 355, Revised Statutes, and note thereto. 
 
 Sec. 3737. [No transfer of contract.] No contract or order, or any interest 
 therein, shall be transferred by the party to whom such contract or order is 
 given to any other party, and any such transfer shall cause the annulment of 
 the contract or order transferred, so far as the United States are concerned. 
 All rights of action, however, for any breach of such contract by the contracting 
 parties, are reserved to the United States. — (17 July, 1862, c. 200, s. 14, v. 12, 
 p. 596. Wheelan v. U. S., 5 C. Cls., 504; McCord's Case, 9 C. Cls., 155; Fran- 
 cis's Case, 11 C. Cls., 638.) 
 
 Sec. 3738. [Eight hours to be day's work.] Eight hours shall constitute a 
 day's work for all laborers, workmen, and mechanics who may be employed 
 by or on behalf of the Government of the United States.— (28 June, 1808, c. 
 72, V. 15, p. 77. U. S. V. Martin, 94 U. S., 40; Martin's Case, 10 C. Cls., 276.) 
 See acts August 1, 1892 (27 Stat., 340); June 19^ ^^?)> as to hours of labor and contract pro- 
 
 1912 (37 Stat., 137); March 3, 1913 (37 
 Stat., 726); and March 4, i917 (39 Stat., 
 
 visions relating thereto. 
 
 Sec. 3739. [Members of Congress not to be interested in contracts, 
 pealed.] 
 
 Re- 
 
 This section provided as follows: 
 "Sec. 3739. No member of or Delegate to 
 Congress shall directly or indirectly, himself, or 
 by any other person in trust for him, or for his 
 use or benefit, or on his account, undertake, ex- 
 ecute, hold, or enjoy, in whole or in part, any 
 contract or agreement made or entered into in 
 behalf of the United States, by any officer or 
 person authorized to make contracts on behalf 
 of the United States. Every person who vio- 
 lates this section shall be deemed guilty of a 
 misdemeanor, and shall be fined three thousand 
 dollars. All contracts or agreements made in 
 violation of this section shall be void; and 
 whenever any sum of money is advanced on the 
 part of the United States, in consideration of 
 
 any such contract or agreement, it shall be 
 forthwith repaid; and in case of refusal or delay 
 to repay the same, when demanded, by the 
 proper officer of the Department under whose 
 authority such contract or agreement shall have 
 been made or entered into, every person so 
 refusing or delaying, together with his surety or 
 sureties, shall be forthwith prosecuted at law 
 for the recovery of any such sum of money so 
 advanced."— (21 Apr., 1868, c. 48, s. 1, v. 2, p. 
 484. 22 June, 1874, c. 389, v. 18, p. 177.) _ 
 
 It was expressly repealed by Criminal 
 Code, Act March 4, 1909, section 341 (35 Stat., 
 1153), and similar provisions were embodied in 
 said art, section 114 (35 Stat., 1109). 
 
 1117 
 
Sec. 3744. 
 
 Ft. 2. REVISEI) STATUTES. 
 
 Contracts. 
 
 Sec. 3740. [What interest Members of Congress may have. Repealed.] 
 
 same arc ready for delivery, and pa>Tnent 
 therefor is made, at the time of making or en- 
 tering into the contract or agreement." — (21 
 Apr., 1808, c. 48, s. 2, v. 2, p. 484. 27 Feb., 
 1877, c. 69, r. 19, p. 249.) 
 
 It was expressly repealed bv Criminal 
 Code, act I\Iarch 4, 1909, section 341 (35 Stat., 
 1153), and similar pro^'isions were embodied in 
 said act, section 116 (35 Stat., 1109). 
 
 Tliis section provided as foUovrs: 
 
 "Sec. 3740. Notliing contained in the pre- 
 ceding section shall extend, or be construed to 
 extend, to any contract or agreement, made or 
 entered into, or accepted, by any incorporated 
 conii)any, where such contract or agreement is 
 made for the general beneiit of such incorpora- 
 tion or company; nor to the purchase or sale 
 of bills of exchange or other property by any 
 member of [or delegate toj Congress, where the 
 
 Sec. 3741. [Stipulation that no Member of Congress has an interest.] In 
 
 every such contract or agreement to be made or entered into, or accepted by 
 
 or on behalf of the United States, there shall be inserted an express condition 
 
 that no member of [or delegate to] Congress shall be admitted to any share or 
 
 part of such contract or agreement, or to any benefit to arise thereupon. — (21 
 
 Apr., 1808, c. 48, s. 3, v. 2, p. 484. 27 Feh., 1877, c. 69, v. 19, p. 249.) 
 
 This section is reproduced above as it appears 
 in the second edition of the Revised 
 Statutes. The words inclosed in brackets 
 
 were inserted in the original section by act 
 of February 27, 1877 (19 Stat., 249). 
 
 Sec. 3742. [Officer making contract with Member of Congress ; 
 Repealed.] 
 
 penalty. 
 
 three thousand dollars.'" — (21 Apr., 1808, c. 
 48, s. 4, v. 2, p. 484. 27 Feb., 1877, c. 69, v. 
 19, ;). 249.) 
 
 It was expressly repealed bv Criminal 
 Code, act IMarch 4, 1909, section 341 (35 Stat., 
 1153), and similar pro\-isions were embodied 
 in said act, section 115 (35 Stat., 1109). 
 
 This section provided as follows: 
 
 "Sec. 3742. Every officer who, on Ijehalf of 
 the United States, directly or indirectly makes 
 or enters into any contract, bargain, or agi'ee- 
 ment in \vriting or otherwise, other than such 
 as are hereinbefore excepted, with any member 
 of [or delegate to] Congress, shall be deemed 
 guilty of a misdemeanor, and shall be fined 
 
 Sec. 3743. [Contracts to be filed with Auditors.] All contracts to be 
 made, by virtue of any law, and requiring the advance of money, or in any 
 manner comiected with the settlement of public accounts, shall be deposited 
 promptly in the offices of the Auditors of the Treasury, according to the nature 
 of the contracts: Provided, That this section shall not apply to the existing 
 laws in regard to the contingent funds of Congress. 
 
 This section was expressly amended and re- Secretary of the Na\'y is charged ^\'ith the cus- 
 enacted to read as above by act of July tody of all records appertaining to the 
 
 31, 1894, section 18 (28 Stat., 210j. _ Na\y Department by section 418, Re\ised 
 
 Copies of contracts are required to be filed in Statutes, 
 
 the Returns Office of the Interior Depart- 
 ment by sections 512-515, and 3744-3747 
 Re\-ised Statutes. 
 
 Sec. 3744. [Contracts to be in writing; copy filed in Returns Office.] It 
 shall be the duty of the Secretary of War, of the Secretary of the Navy, and of 
 the Secretary of the Interior, to cause and require every contract made by them 
 severally on behalf of the Government, or by their officers under them appointed 
 to make such contracts, to be reduced to writing, and signed by the contracting 
 parties with their names at the end thereof; a copy of which shall be filed by 
 the officer making and signing the contract in the Returns Office of the Depart- 
 ment of the Interior, as soon after the contract is made as possible, and within 
 thirty days, together with all bids, offers, and proposals to him made by persons 
 to obtain the same, and with a copy of any advertisement he may have pub- 
 lished inviting bids, offers, or proposals for the same. AU the copies and papers 
 in relation to each contract shall be attached together by a ribbon and seal, and 
 
 1118 
 
Contracts. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 3747. 
 
 marked by numbers in regular order, according to the number of papers com- 
 posing the whole return.-— (2 June, 1862, c. 93, s. 1, v. 12, p. 411. Lindsley v. 
 U. S., 4 C. Cls., 359; Burchiel v. U. S., 4 C. Cls., 549; Bernheimer v. U. S., 5 
 C. Cls., 65; Salamon v. U. S., 19 Wall.. 17: Jones's Case, 11 C. Cls., 733.) 
 
 This section was expressly amended by the 
 urgent deficiency appropriation act of 
 June 15, 1917 (40'Stat., 198), by adding at 
 the end thereof the loIIowinG;: "Proiukd, 
 That the Secretary of War or the Secretary 
 of the Navy may extend the time for filing 
 such contracts in the returns office of the 
 
 See 
 
 Department of the Interior to ninety days 
 •whene^'er in their opinion it woukl be to the 
 interest of the United States to follow such 
 a course." 
 
 sections 512-515, Revised Statutes, and 
 notes thereto, as to the Returns Office. 
 
 Sec. 3745. [Oath to copy of contract.] It shall be the further duty of the 
 officer, before making his return, according to the preceding section, to afhx to 
 the same his affidavit in the following form, sworn to before some magistrate 
 having authority to administer oaths: "I do solemnly swear (or affirm) that 
 the copy of contract hereto annexed is an exact copy of a contract made by mc 
 
 pereonally with ; that I made the same fairly without any benefit or 
 
 advantage to myself, or allowing any such benefit or advantage corruptly to 
 
 the said 
 
 or any other person; and that the papers accompanying 
 
 include all those relating to the said contract, as required by the statute in such 
 case made and provided." — (Ibid., s. 2.) 
 
 See sections 512-515, Revised Statutes, and notes thereto. 
 
 Sec. 3746. [Penalty for omitting returns.] Every ollicer who makes any 
 contract, and fails or neglects to make return of the same, according to the pro- 
 visions of the two preceding sections, unless from unavoidable accident or causes 
 not within his control, shall be deemed guilt}' of a misdemeanor, and shaU be 
 fined not less than one hundred dollars nor more tlian fne hundred, and im- 
 prisoned not more than six months. — (Ibid., s. 3.) 
 
 See sections 512-515, Revised Statutes, and notes thereto. 
 
 Sec. 3747. [Instructions to officers naaking contracts.] It shall be the duty 
 of the Secretary of War, of the Secretary of the Xavy, and of the Secretary of 
 the Interior to furnish every officer appointed by them with authority to make 
 contracts on behalf of the Government with a printed letter of instructions, 
 setting forth the duties of such officer, under the two preceding sections, and 
 also to furnish therewith forms, printed in blank, of contracts to be made, and 
 the affidavit of returns required to be ailixed thereto, so that all the instruments 
 may be as nearly uniform as possible. — -(Ibid., s. 5.) 
 
 1119 
 
TITLE XLIV. 
 
 THE PUBLIC PROPERTY. 
 
 Sec. 3748. [TJniforms and equipments, not to be sold, etc.] The clothes, 
 arms, military outfits, and accouterments furnished by the United States to 
 any soldier shall not be sold, bartered, exchanged, pledged, loaned, or given 
 away; and no person not a soldier, or duly authorized ofTicer of the United 
 States, who has possession of any such clothes, arms, military outfits, or accou- 
 terments, so furnished, and which have been the subjects of any such sale, 
 barter, exchange, pledge, loan, or gift, shall have any right, title, or interest 
 therein; but the same may be seized and taken wherever found by any officer 
 of the United States, civil or military, and shall thereupon be delivered to any 
 quartermaster, or other officer authorized to receive the same. The possession 
 of any such clothes, arms, military outfits, or accouterments by any person not 
 a soldier or officer of the United States shall be presumptive evidence of such 
 a sale, barter, exchange, pledge, loan, or gift. — (3 Mar., 1863, c. 75, s. 23, v. 
 12, p. 735.) 
 
 See Criminal Code, act March 4, 1909, section 35 (35 Stat., 1095), as amended by act October 
 23, 1918 (40 Stat., 1016). 
 
 Sec. 3752. [Purchase of lands; releases to United States.] Whenever any 
 lands have been or shall be conveyed to individuals or officers, for the use or 
 benefit of the United States, the President is authorized to obtain from such 
 person a release of his interest to the United wStates. — (28 April, 1828, c. 41, s. 3, 
 V. 4, p. 264.) 
 
 See section 355, Revised Statutes, and note thereto. 
 
 1121 
 
TITLE XLV. 
 PUBLIC PEINTING, ADVEETISEMENTS, AND PUBLIC DOCUMENTS. 
 
 Sec. 3826. [Advertisements in Washington, D. C] All advertisements, 
 notices, and proposals for contracts for all the Executive Departments of the 
 Government, and the laws passed by Congress and executive proclamations and 
 treaties to be published in the District of Columbia, Maryland, and Virginia, 
 shall hereafter be advertised by publication in the three daily papers published 
 in the District of Columbia having the largest circulation, one of wliich shall 
 be selected by the Clerk of the House of Representatives, and in no others. 
 The charges for such publications shall not be higher than such as are paid by 
 individuals for advertising in said papers, and the same publications shall be 
 made in each of the said papers equally as to frequency: Provided, That no 
 advertisement to any State, district, or Territory, other than the District of 
 Columbia, Maryland, or Virginia, shall be published in the papers designated, 
 unless at the direction first made of the proper head of a Department: And 
 provided further, That this section shall not be construed to allow a greater com- 
 pensation for the publication of the laws passed by Congress and executive 
 proclamations and treaties in the papers of the District of Columbia than is 
 provided by law for such publications in other papers. — (2 Mar., 1867, c. 167, s. 
 10, V. 14, p. 467. 29 Mar., 1867, c. 13, s. 2, v. 15, p. 7. 20 July, 1868, c. 176, 
 ss. 2, 4, V. 15, p. 110. 18 Feb., 1875, c. 18, v. 18, p. 316. Repealed in part by 
 Stat. 3 Mar., 1875, c. 128, v. 18, p. 342. 31 July, 1876, c. 246, v. 19, p. 105.) 
 
 "So much of section three thousand eie:ht hun- 
 dred and twenty-six of the Ile\'ised Stat- 
 utes of the United States as refers to the 
 publication of advertisements in newspa- 
 pers be, and thesameisherebv, repealed.'' 
 (Act Mar. 3, 1875, 18 Stat., 342.) 
 
 "After the fourth day of March, eicrhteen hun- 
 dred and seventy-five, the publication of 
 the laws in newspapers shall cease." ' Sec. 
 79, R. S., as amended by act Feb. IS, 1875, 
 18 Stat., 317.) 
 
 "That all executive proclamations, & all trea- 
 ties required by law to be published, shall 
 be published in only one newspaper, the 
 same to be printed and published in the 
 District of Columbia and to )>e designated 
 by the Secretary of State and in no case 
 of advertisement for contracts for the pub- 
 lic ser\ace shall the same be published in 
 any newspaper published and printed in 
 the District of Columbia.unless the supplies 
 or labor covered by such advertisements are 
 to be furnished or performed in said District 
 of Columbia." (Sundrv ci\dl act, July 31, 
 1876, 19 Stat., 105.) 
 
 "Hereafter all advertisements, notices, propos- 
 als for contracts, and all forms of advertis- 
 ing required by law for the several depart- 
 ments of the government may be paid for at 
 
 a price not to exceed the commercial rates 
 charged to private indi^dduals, with the 
 usual discounts; siich rates to be ascer- 
 tained from sworn statements to be fur- 
 nished by the proprietors or publishers of 
 the newspapers proposing so to advertise: 
 Provided, That * * * the heads of the 
 several departments may secure lower terms 
 at special rates whenever the public inter- 
 est requires it." ("Act .June 20, 1878, 20 
 Stat., 216.) 
 
 "All advertising required by existing laws to be 
 done in the District of Columbia by any of 
 the departments of the government shall be 
 given to one daily and one weekly news- 
 paper of each of the two principal political 
 parties and to one daily and one weekly 
 neutral newspaper: Provided, That the 
 rates of compensation for such service shall 
 in no case exceed the regular commercial 
 rate of the newspapers selected; nor shall 
 any advertisement be paid for unless pub- 
 lished in accordance with section thirty- 
 eight hundred and twenty-eight of the Re- 
 \-ised Statutes." (Act Jan. ""21, 1881, 21 
 Stat., 317.) 
 
 See sections 3709 3718, 3721, and 3828, Re\ised 
 Statutes. 
 
 1123 
 
Sec. 3828. Pt. 2. REVISED STATUTES. Advertisements. 
 
 Sec. 3828. [Newspaper advertising; written authority required.] No ad- 
 vertisement, notice, or proposal for any Executive Department of the Govern- 
 ment, or for any Bureau thereof, or for any office therewith connected, shall 
 be published in any newspaper whatever, except in pursuance of a written 
 authority for such publication from the head of such Department; and no bill 
 for any advertising, or publication, shall be paid, unless there be presented, 
 with such bill, a copy of such WTitten authority. — (15 July, 1870, c. 292, s. 2, 
 V. 16, p. 308.) 
 
 See sections 3709, 3718, 3721, and 3826, Revised Statutes. 
 
 1124 
 
TITLE XLVIIL 
 
 COMMERCE AND NAVIGATION. 
 
 Sec. 
 
 4205. Clearance of vessels laden with live-oak. 
 
 4233. Rules for preventing collisions on the Red 
 River of the North, and rivers empty- 
 ing into the Gulf of Mexico, and their 
 tributaries. 
 
 4237. No discrimination in pilotage rates. 
 
 Sec. 
 
 4293. Public vessels to suppress piracy. 
 
 4294. Seizure of piratical vessels. 
 
 4296. Condemnation of piratical vessels. 
 
 4297. Seizure of vessels fitted out for piracy. 
 
 4298. Whal vessels authorized to seize pirates. 
 
 Sec. 4205. [Clearance of vessels laden with live-oak.] Collectors of the col- 
 lection-districts within the States of Florida, Alabama, Mississippi, and Louis- 
 iana, before allowing a clearance to any vessel laden in whole or in part with 
 live-oak timber, shall ascertain satisfactorily that such timber was cut from 
 private lands, or, if from public lands, by consent of the Department of the 
 Navy.— (3 Mar., 1833, c. 67, s. 3, v. 4, p. 647.) 
 
 Sec. 4233. [Rules for preventing- collisions on the Red River of the North and 
 rivers emptying into the Gulf of Mexico, and their tributaries.] The following 
 rules for preventing collisions on the water, shall be followed in the navigation 
 of vessels of the Navy and of the mercantile marine of the L^nited States: 
 
 This section has been superseded and repealed 
 by subsequent enactments, except in so far 
 as concerns navigation on the Red River of 
 the North and rivers emptying into the 
 Gulf of Mexico, and their tributaries. (See 
 also sec. 4412, R. S., and note thereto, as to 
 executive regulations applicable to the 
 waters mentioned.) The laws prescribing 
 rules for preventing collisions at sea and 
 upon the Great Lakes, harbors, rivers, and 
 inland waters of the United States, except 
 the Red River of the North and rivers emp- 
 tying into the Gulf of Mexico and their 
 tributaries are cited below, as follows: 
 
 Rules for preventing collisions at sea. — See act 
 of August 19, 1890 (26 Stat., 320), providing 
 that the regulations therein prescribed ' ' for 
 preventing collisions at sea shall be fol- 
 lowed by all pubUc and private vessels of 
 the United States upon the high seas and 
 in all waters connected therewith, navi- 
 gable by seagoing vessels." Section 2 of 
 said act (26 Stat., 328) provided that "all 
 laws or parts of laws inconsistent with the 
 foregoing regulations for preventing col- 
 lisions at sea for the navigation of all pub- 
 lic and private vessels of the United States 
 upon the high seas, and in all waters con- 
 nected therewith navigable by sea-going 
 vessels, are hereby repealed . ' ' 
 
 Rules for the Great Lakes and their connecting 
 and tributary waters as far east as Mont- 
 real.— See act of February 8, 1895 (28 Stat., 
 645), providing that the rules therein pre- 
 scribed for preventing collisions "shall be 
 followed in the navigation of all public and 
 
 private vessels of the United States upon 
 the Great Lakes and their connecting and 
 tributary waters as far east as Montreal." 
 Section 4 of said act (,28 Stat., 650) provided 
 "that all laws or parts of laws, so far as ap- 
 plicable to the navigation of the Great 
 Lakes and their connecting and tributary 
 waters as far east as Montreal, inconsistent 
 with the foregoing rules are hereby re- 
 pealed." 
 Rules for harbors, rivers, and inland waters of 
 the L^nited States, except the Great Lakes 
 and their connecting and tributary waters 
 as far east as Montreal, and the Red River 
 of the North and rivers emptying into the 
 Gulf of Mexico and their tributaries. — See 
 act of June 7, 1897 (30 Stat., 96), providing 
 that the regulations therein prescribed for 
 preventing collision "shall be followed by 
 all vessels navigating all harbors, rivers, 
 and inland waters of the United States, 
 except the Great Lakes and their connect- 
 ing and tributary waters as far east as Mont- 
 real and the Red River of the North and 
 rivers emptying into the Gulf of Mexico 
 and their tributaries, and are hereby de- 
 clared special rules duly made by local 
 authority." Section 5 of said act (.30 Stat., 
 103) provided that section 4233, and cer- 
 tain other sections of the Revised Statutes 
 and certain laws subsequent to the Re- 
 vised Statutes, and all amendments tliereto, 
 "are hereby repealed so far as the harbors, 
 rivers, and inland waters aforesaid (except 
 the Great Lakes and their connecting and 
 tributary waters as far east as Montreal and 
 
 1125 
 
Sec. 4233. PL 2. REVISED STATUTES. Navigation. 
 
 the Red River of the North and rivers Rules for regattas. — Regulations to promote the 
 
 emptying into the Gulf of Me.xico, and safety of life on navigable waters during 
 
 their tributaries) are concerned." regattas or marine parades are made and 
 
 Rules for motor boats. — By act of June 9, 1910 i enforced pursuant to act April 28, 1908 
 
 (3G Stat., 4()2), special rules were pre- (35 Stat., 69) 
 
 scribed for motor boats on the navigable 
 waters of the United States. 
 
 See act of P'ebniary 19, 1895 (28 Stat., 672), 
 and note thereto; see also acts of Septem- 
 ber 7, 1916, section 12 (39 Stat., 732), and 
 July 9, 1918, (40 Stat., 893). 
 
 STEAM AND SAIL VESSELS. 
 
 Rule 1. Every steam vessel which is under sail and n(^t under steam 
 shall be considered a sail vessel; and every steam vessel which is under steam, 
 whether under sail or not, shall be considered a steam vessel. The words 
 steam vessel shall include any vessel propelled by machinery. 
 
 This rule was expressly reenacted to read as above by act of March 3, 1905 (33 Stat., 1032). 
 
 LIGHTS. 
 
 Rule two. The lights mentioned in the following rules, and no others, 
 shall be carried in all weathers, between sunset and sunrise. 
 
 Rule three. All ocean-going steamers, and steamers carrying sail, shall, 
 when under way, carrj^ — 
 
 (A) At the foremast head, a bright white light, of such a character as to 
 be visible on a dark night, with a clear atmosphere, at a distance of at least 
 five miles, and so constructed as to show a uniform and unbroken light over 
 an arc of the horizon of twenty points of the compass, and so fixed as to throw 
 the light ten points on each side of the vessel, namely, from right ahead to 
 two points abaft the beam on either side. 
 
 (B) On the starboard side, a green light, of such a character as to be 
 visible on a dark night, with a clear atmosphere, at a distance of at least two 
 miles, and so constructed as to show a uniform and unbroken light over an 
 arc of the horizon of ten points of the compass, and so fixed as to throw the 
 light from right ahead to two points abaft the beam on the starboard side. 
 
 (C) On the port side, a red light, of such a character as to be visible on 
 a dark night, with a clear atmosphere, at a distance of at least two miles, and 
 so constructed as to show a uniform and unbroken light over an arc of the 
 horizon of ten points of the compass, and so fixed as to throw the light from 
 right ahead to two points abaft the beam on the port side. 
 
 The green and red lights shall be fitted with inboard screens, projecting 
 at least three feet forward from the lights, so as to prevent them from being 
 seen across the bow. 
 
 Rule four. Steam-vessels, when towing other vessels, shall carry two 
 })right white mast-head lights vertically, in addition to their side-lights, so as 
 to distinguish them from other steam-vessels. Each of these mast-head 
 lights shall be of the same character and construction as the mast-head lights 
 prescribed by Rule three. 
 
 Rule five. All steam-vessels, other than ocean-going steamers and steamers 
 carrying sail, shall, when under way, carry on the starboard and port sides 
 lights of the same character and construction and in the same position as are 
 prescribed for side-lights by Rule three, except in the case provided in Rule six. 
 
 Rule six. River-steamers navigating waters flowing into the Gulf of 
 Mexico, and their tributaries, shall carry the following lights, namely: One 
 
 1126 
 
Navigation. Pt. 2. REVISED STATUTES. Sec. 4233. 
 
 red light on the outboard side of the port smoke-pipe, and one green hght on 
 the outboard si^e of the starboard smoke-pipe. Such Kghts shall show both 
 forward and abeam. on their respective sides. 
 
 Rule seven. All coasting steam-vessels, and steam-vessels other than 
 ferry-boats and vessels otherwise expressly provided for, navigating the bays, 
 lakes, rivers, or other inland waters of the United States, except those men- 
 tioned in Rule six, shall carry the red and green lights, as prescribed for ocean- 
 going steamers; and, in addition thereto, a central range of two white lights; 
 the after-light being carried at an elevation of at least fifteen feet above the 
 light at the head of the vessel. The head-light shall be so constructed as to 
 show a good light through twenty points of the compass, namely : from right 
 ahead to two points abaft the beam on either side of the vessel; and the 
 after-light so as to show all around the horizon. The lights for ferryboats, 
 barges and canal boats when in tow of steam vessels, shall be regulated by 
 such rules as the Board of Supervising Inspectors of Steam Vessels shall 
 prescribe. 
 
 This rule was expressly amended to read as above by act of March 3, 1893 (27 Stat., 557). 
 
 Rule eight. Sail-vessels, under way or being towed, shall carry the same 
 lights as steam-vessels under way, with the exception of the white mast-head 
 lights, which they shall never carry. 
 
 Rule nine. Whenever, as in case of small vessels during bad weather, the 
 green and red lights cannot be fixed, these lights shall be kept on deck, on 
 their respective sides of the vessel, ready for instant exhibition, and shall, on 
 the approach of or to other vessels, be exliibited on their respective sides in 
 sufficient time to prevent collision, in such manner as to make them most 
 visible, and so that the green light shall not be seen on the port side, nor the 
 red light on the starboard side. To make the use of these portable lights 
 more certain and easy, they shall each be painted outside with the color of 
 the light they respectively contain, and shall be provided with suitable screens. 
 
 Rule ten. All vessels, whether steam-vessels or sail-vessels, when at 
 anchor in roadsteads or fairways, shall, between sunset and sunrise, exhibit 
 where it can best be seen, but at a height not exceeding twenty feet above 
 the hull, a white light in a globular lantern of eight inches in diameter, and 
 so constructed as to show a clear, uniform, and unbroken light, visible all 
 around the horizon, and at a distance of at least one mile. 
 
 Rule eleven. Sailing pilot-vessels shall not carry the lights required for 
 other sailing-vessels, but shall carry a white light at the mast-head, visible 
 all around the horizon, and shall also exhibit a flare-up light every fifteen 
 minutes. 
 
 Steam pilot boats shall, in addition to the masthead light and green and 
 red side lights required for ocean steam vessels, carry a red light hung ver- 
 tically from thi'ee to five feet above the foremast headlight, for the purpose of 
 distinguishing such steam pilot boats from other steam vessels. 
 
 This rule was expre.ssly amended to read as above by act of March 3, 1897, section 5 (29 
 Stat., 689), which added thereto the second paragraph as above set forth. 
 
 Rule twelve. Coal-boats, trading-boats, produce-boats, canal-boats, oyster- 
 boats, fishing-boats, rafts, or other water-craft, navigating any bay, harbor, 
 
 1127 
 
Sec. 4233. Pt. 2. REVISED STATUTES. Navigation. 
 
 or river, by hand-power, horse-power, sail, or by the current of the river, or 
 which shall be anchored or moored in or near the channel or fainvay of any 
 bay, harbor, or river, shall carry one or more good white lights, which shall 
 be placed in such manner as shall be prescribed by the board of supervising 
 inspectors of steam- vessels. 
 
 Rule thirteen. Open boats shall not be required to carry the side-lights 
 required for other vessels, but shall, if they do not carry such lights, carry a 
 lantern having a green slide on one side and a red slide on the other side; and, 
 on the approach of or to other vessels, such lantern shall be exhibited in suffi- 
 cient time to prevent collision, and in such a manner that the green light shall 
 not be seen on the port side, nor the red light on the starboard side. Open 
 boats, when at anchor or stationary, shall exhibit a bright white light. They 
 shall not, however, be prevented from using a fiare-up, in addition, if con- 
 sidered expedient. 
 
 Rule fourteen. The exhibition of any light on board of a vessel of war of 
 
 the United States may be suspended whenever, in the opinion of the Secretary 
 
 of the Navy, the commander in chief of a squadron, or the commander of a 
 
 vessel acting singly, the special character of the service may require it. The 
 
 exhibition of any light on board of a revenue cutter of the United States may 
 
 be suspended whenever, in the opinion of the commander of the vessel, the 
 
 special character of the service may require it. 
 
 This rule was expressly reenacted to read as above by act of March 3, 1897, section 12 (29 
 Stat., 690). 
 
 FOG SIGNALS. 
 
 Rule fifteen, (a) Whenever there is a fog, or thick weather, whether by 
 day or night, fog signals shall be used as follows: Steam vessels under way 
 shall sound a steam w^histle placed before the funnel, not less than eight feet 
 from the deck, at intervals of not more than one minute. Steam vessels, when 
 towing, shall sound three blasts of quick succession repeated at intervals of not 
 more than one minute, (b) Sail vessels under way shall sound a foghorn at 
 intervals of not more than one minute, (c) Steam vessels and sail vessels, 
 when not under way, shall sound a bell at intervals of not more than two min- 
 utes. 
 
 (D) Coal-boats, trading-boats, produce-boats, canal-boats, oyster-boats, 
 fishing-boats, rafts, or other water-craft, navigating any bay, harbor, or river, 
 by hand-power, horse-power, sail, or by the current of the river, or anchored 
 or moored in or near the channel or fairway of any bay, harbor, or river, and 
 not in any port, shall sound a fog-horn, or equivalent signal, which shall make 
 a sound equal to a steam-whistle, at intervals of not more than two minutes. 
 
 This section was expressly amended by act of 
 March 3, 1897, section 12 (29 Stat., 690\ 
 which reenacted clauses (a), (b), and (c), 
 
 to read as above, and made no modification 
 in clause (D). 
 
 STEERING AND SAILING RULES. 
 
 Rule 16. Risk of collision can, when circumstances permit, be ascertained 
 by carefully watching the compass bearing of an approaching vessel. If the 
 bearing does not appreciably change such risk should be deemed to exist. 
 
 This section was expressly reenacted to read as above by act of March 3, 1897, section 12 (29 
 Stat., 690). 
 
 1128 
 
Navigation. PL 2. REVISED STATUTES. Sec. 4233. 
 
 Rule 17. When two sailing vessels are approaching one another, so as to 
 involve risk of collision, one of them shall keep out of the way of the other, as 
 follows, namely: 
 
 (a) A vessel which is running free shall keep out of the way of a vessel 
 which is close-hauled. 
 
 (b) A vessel which is close-hauled on the port tack shall keep out of the 
 way of a vessel which is close-hauled on the starboard tack. 
 
 (c) When both are running free, with the wind on different sides, the 
 vessel which has the wind on the port side shall keep out of the way of the 
 other. 
 
 (d) When both vessels are running free, with the wind on the same side, 
 the vessel which is to the windward shall keep out of the way of the vessel which 
 is to the leeward. 
 
 (e) A vessel which has the wind aft shall keep out of the way of the other 
 vessel. 
 
 This section -was expressly reenacted to read as above by act of March 3, 1897, section 12 (29 
 Stat., 690). 
 
 Rule eighteen. If two vessels under steam are meeting end on, or nearly 
 end on, so as to involve risk of collision, the helms of both shall be put to port, 
 so that each may pass on the port side of the other. 
 
 Rule nineteen. If two vessels under steam are crossing so as to involve 
 risk of collision, the vessel which has the other on her own starboard side shall 
 keep out of the way of the other. 
 
 Rule twenty. If two vessels, one of which is a sail-vessel and the other 
 a steam-vessel, are proceeding in such directions as to involve risk of collision, 
 the steam-vessel shall keep out of the way of the sail-vessel. 
 
 Rule twenty-one. Every steam-vessel, when approaching another vessel, 
 so as to involve risk of collision, shall slacken her speed, or, if necessary, stop 
 and reverse; and every steam-vessel shall, when in a fog, go at a moderate 
 speed. 
 
 Rule twenty-two. Every vessel overtaking any other vessel shall keep 
 out of the way of the last-mentioned vessel. 
 
 Rule twenty-three. Where, by Rules seventeen, nineteen, twenty, and 
 twenty- two, one of two vessels shall keep, out of the way, the other shall keep 
 her course, subject to the qualifications of Rule twenty-four. 
 
 Rule twenty-four. In construing and obeying these rules, due regard 
 must be had to all dangers of navigation, and to any special circumstances 
 which may exist in any particular case rendering a departure from them neces- 
 sary in order to avoid immediate danger. 
 
 Rule twenty-five. A sail vessel which is being overtaken by another vessel 
 during the night shall show from her stern to such last-mentioned vessel a torch 
 or a flare-up light. 
 
 This rule was added to section 42.33, Revised Statutes, as Rule twenty-five thereof, by 
 act of March 3, 1897, section 13 (29 Stat., 690). 
 
 Rule twenty-six. Nothing in these rules shall exonerate any ship, or the 
 owner, or master, or crew thereof, from the consequences of any neglect to 
 carry lights or signals, or of any neglect to keep a proper lookout, or of the neg- 
 
 1129 
 
Sec. 4296. Pt. 2. REVISED STATUTES. Navigation. 
 
 lect of any precaution which may be required by the ordinary practice of seamen 
 or by the special circumstances of the case. 
 
 This rule was added to section 4233, Revised Statutes, as Rule twenty-six thereof, by act 
 of March 3, 1S97, section 13 (29 Stat., 090). 
 
 Sec. 4237. [No discrimination in pilotage rates.] No regulations or provi- 
 sions shall be adopted by any State which shall make any discrimination in 
 the rate of pilotage or half-pilotage between vessels sailing between the ports 
 of one State and vessels sailing between the ports of difl'erent States, or any 
 discrimination against vessels propelled in whole or in part by steam, or against 
 national vessels of the United States; and all existing regulations or pro- 
 visions making any such discrimination are annulled and abrogated. — (13 
 July, 1866, c. 177, v. 14, p. 93.) 
 
 See note to Constitution, Article I, section 8, 
 clause 13, under "11. Freedom from State 
 interference," subheading, " Exemption 
 
 from State laws requiring employment of 
 pilots." 
 
 Sec. 4293. [Public vessels to suppress piracy.] The President is authorized 
 to employ so many of the public armed vessels as in his judgment the service 
 may require, with suitable instructions to the commanders thereof, in pro- 
 tecting the merchant-vessels of the United States and their crews from piratical 
 aggressions and depredations. — (3 Mar., 1819, c. 77, s. 1, v. 3, p. 510. 30 Jan., 
 1823, c. 7, V. 3, p. 721.) 
 
 Sec. 4294. [Seizure of piratical vessels.] The President is authorized to 
 instruct the commanders of the public armed vessels of the United States to 
 subdue, seize, take, and send into any port of the United States, any armed 
 vessel or boat, or any vessel or boat the, crew whereof shall be armed, and which 
 shall have attempted or committed any pu-atical aggression, search, restraint, 
 depredation, or seizure, upon any vessel of the United States, or of the citizens 
 thereof, or upon any other vessel; and also to retake any vessel of the United 
 States, or its citizens, which may have been unlawfully captured upon the high 
 seas.— (3 Mar., 1819, c. 77, s. 2, v. 3, p. 512. 30 Jan., 1823, c. 7, v. 3, p. 721. 
 The Marianna Flora, 11 Wh., 1; The Palm>Ta, 12 Wh., 1.) 
 
 Sec. 4296. [Condemnation of piratical vessels.] T\Tienever any vessel, 
 which shall have been built, purchased, fitted out in whole or in part, or held 
 for the pm-pose of being employed in the commission of any piratical aggression, 
 search, restraint, depredation, or seizure, or in the commission of any other act 
 of piracy as defined by the law of nations, or from which any piratical aggres- 
 sion, search, restraint, depredation, or seizure shall have been first attempted 
 or made, is captured and brought into or captured in any port of the United 
 States, the same shall be adjudged and condemned to their use, and that of the 
 captors after due process and trial in any court having admiralty jiu-isdiction, 
 and which shall be holden for the district into which such captured vessel shall 
 be brought; and the same court shall thereupon order a sale and distribution 
 thereof accordingly, and at its discretion. — (3 IMar., 1819, c. 77, s. 4, v. 3, p. 
 513. 30 Jan., 1823, c. 7, v. 3, p. 721. 5 Aug., 1861, c. 48, s. 1, v. 12, p. 314.) 
 
 Bv the Navy personnel act of March 3, 1899, 
 section 13 (30 Stat., 1007), "all provisions 
 of law authorizing the distribution among 
 captors of the whole or any portion of tlie 
 
 proceeds of vessels, or any property here- 
 after captured, condemned as prize," were 
 repealed. 
 
 1130 
 
Navigation. Pt. 2. REVISED STATUTES. Sec. 4298. 
 
 Sec. 4297. [Seizure of vessels fitted out for piracy.] Any vessel built, pur- 
 chased, fitted out in whole or in part, or held for the purpose of being employed 
 in the commission of any piratical aggression, search, restraint, depredation, 
 or seizure, or in the commission of any other act of piracy, as defined by the 
 law of nations, shall be liable to be captured and brought into any port of the 
 United States if found upon the high seas, or to be seized if found in any port 
 or place within the United States, whether the same shall have actually sailed 
 upon any piratical expedition or not, and whether any act of piracy shall have 
 been committed or attempted upon or from such vessel or not; and any such 
 vessel may be adjudged and condemned, if captured by a vessel authorized as 
 hereinafter mentioned, to the use of the United States and to that of the cap- 
 tors, and if seized by a collector, surveyor, or marshal, then to the use of the 
 United States.— (5 Aug., 1861, c. 48, s. 1, v. 12, p. 314.) 
 See note to section 4296, Re-vised Statutes. 
 
 Sec. 4298. [What vessels authorized to seize pirates.] The President is 
 authorized to instruct the commanders of the public armed vessels of the 
 United States, and to authorize the commanders of any other armed vessels 
 sailing under the authority of any letters of marque and reprisal granted by 
 Congress, or the commanders of any other suitable vessels, to subdue, seize, 
 take, and, if on the high seas, to send into any port of the United States, any 
 vessel or boat built, purchased, fitted out, or held as mentioned in the preceding 
 section.— (5 Aug., 1861, c. 48, s. 2, v. 12, p. 315.) 
 
 54641°— 22 72 1131 
 
TITLE LI. 
 
 REGULATION OF FISHERIES 
 
 Sec. 4397. [Executive Departments to aid investigations.] The heads of 
 the several Executive Departments shall cause to be rendered all necessary and 
 practicable aid to the commissioner in the prosecution of his investigations 
 and inquiries.— (9 Feb., 1S71, Res. No. 22, s. 3, v. 16, p. 594.) 
 
 The "commissioner" referred to in this section 
 is the Commissioner of Fish and Fisheries, 
 chief of the Bureau of Fisheries, Depart- 
 ment of Commerce. 
 
 By act of May 31, 1880 (21 Stat., 151), the Sec- 
 retary of the Navy was directed to place 
 
 the vessels of the United States Fish Com- 
 mission on the same footing with the Navy 
 Department as those of the United States 
 Coast and Geodetic Survey. (See sections 
 4684, 4686-4688, Revised Statutes, as to 
 Coast and Geodetic Survey.) 
 
 1133 
 
TIT].E LII. 
 
 REGULATION OF STEAM -VESSELS. 
 
 Sec. 4400. [What vessels are subject to the provisions of this title.] All 
 steam vessels navigating any waters of the United States which are common 
 highways of commerce or open to general or competitive navigation, except- 
 ing public vessels of the United States, vessels of other countries, and boats 
 propelled in whole or in part by steam for navigating canals, shall be subject 
 to the provisions of this title, * * * 
 
 This section was reenacted to read as above 
 by act of March 17, 1900 (34 Stat.. 68). 
 
 The omitted portion of the reenacted sec- 
 tion does not relate to the Navv. 
 
 Sec. 4412. [Regulations as to steamers passing each other.] The board of 
 supervising inspectors shall establish such regulations to be observed by all 
 steam-vessels in passing each other, as they shall from time to time deem neces- 
 sary for safety; two printed copies of such regulations, signed by them, shall be 
 furnished to each of such vessels, and shall at all times be kept posted up in 
 conspicuous places in such vessels. — (Ibid., s. 29, p. 470.) 
 
 By act of June 7, 1897, section 5 (30 Stat., 103), 
 it was provided that sections 4233 and 
 4412, Revised Statutes, '(wdth the regula- 
 tions made in pursuance thereof, except 
 the rules and regulations for the govern- 
 ment of pilots of steamers naviirating the 
 Red River of the North and rivers empty- 
 ing into the Gulf of Mexico and their 
 tributaries, and except the rules for the 
 Great Lakes and their connecting and 
 tributary waters as far east as Montreal), '' 
 and certain other statutory enactments, 
 and all amendments thereto, "are hereby 
 repealed so far as the harbors, rivers, and 
 inland waters aforesaid (except the Great 
 Lakes and their connecting and tributary 
 waters as far east as Montreal and the Red 
 River of the North and rivers emptying 
 into the Gulf of Mexico, and their tribu- 
 taries) are concerned."' 
 
 By act of January 18, 1897 (29 Stat., 489), it 
 was provided that all vessels "propelled 
 by gas. fluid, naphtha, or electric motors," ; 
 
 Sec. 4413. [Penalty for violation of regulations.] Every pilot, engineer, 
 mate, or master of any steam vessel who neglects or willfully refuses to observe 
 the regulations established in pursuance of the preceding section, shall be liable 
 to a penalty of fifty dollars, and for all damages sustained by any passenger, 
 in his person or baggage, by such neglect or refusal. — (Ibid.) 
 
 See note to section 4412, Revised Statutes. 
 
 Sec. 4438. [Licenses of officers by inspectors.] The boards of local inspectors 
 shall license and classif^^ the masters, chief mates, and second and third mates, 
 if in charge of a watch, engineers, and pilots of all steam vessels, and the masters 
 of sail vessels of over seven hundred gross tons, and all other vessels of over one 
 
 mthout regard to tonnage or use, shall be 
 subject to the provisions of section 4412 
 of the Revised Statutes. 
 
 By act of June 9, 1910 (36 Stat., 462), special 
 rules were prescribed for motor boats on 
 the navigable waters of the United States. 
 
 See note to preamble of section 4233, Revised 
 Statutes; and see acts of Februarv 19, 1895 
 (28 Stat., 672), and July 9, 19 18 '(40 Stat.. 
 893K 
 
 For rules published in accordance with section 
 4412, Revised Statutes, signed by the- 
 members of the Board of Supervising 
 Inspectors, "for the government of pilots 
 of vessels propelled by steam, gas, fluid, 
 naphtha, or electric motors and of other 
 vessels propelled by machinery, navigat- 
 ing the Red River of the North, the 
 Mississippi River, and other rivers empty- 
 ing into the Gulf of Mexico, and their 
 tributaries,'' see Navy Regulations, 1920, 
 page 814. 
 
 1135 
 
Sec. 4438. Ft. 2. REVISED STATUTES. Steam-vessels. 
 
 liundred gross tons carrying passengers for hire. It shall be unlaAv-ful to employ 
 any person or for any person to serve as a master, chief mate, engineer, or pilot 
 of any steamer or as master of any sail vessel of over seven hundred gross tons or 
 of any other vessel of over one hundred gross tons carrying passengers for hire 
 who is not licensed by the inspectors; and anyone violating this section shall be 
 liable to a penalty of one hundred dollars for each offense. 
 
 This section was cxpreasly amended and reen- [ the license required by section 4438, Revised 
 
 acted to read as above by act of May 28, i Statutes, although he may be eligible, by 
 
 1908, section 2 (35 Stat., 425.) j virtue of his commission, to take command of 
 
 A naval officer can not lawfully serve as a steam vessel of the United States in the naval 
 
 master of a private steam vessel in the merchant i service. (15 Op. Atty. Gen., 61, Oct. 26, 1875.) 
 
 service vnthout having previously obtained j 
 
 1136 
 
TITLE LIV. 
 
 PRIZE. 
 
 Sec. 
 
 4613. Application of provisions of Title. 
 
 4614. "Vessels of the Navy'' defined. 
 
 4615. Duties of commanding officer upon 
 
 making capture. 
 
 4616. Statement of claim to share in prize. 
 
 4617. Duties of prize-master. 
 
 4618. Libel and proceedings by district at- 
 
 torney. 
 
 4619. Duties of district attorneys; claim for 
 
 damages against captors. 
 
 4621. Appointment of prize-commissioners; 
 
 retired naval officer. 
 
 4622. Duties of prize-commissioners. 
 
 4623. Duties of marshal. 
 
 4624. Appraisal, &c., of property taken for 
 
 Government. 
 
 4625. Proceedings for adjudication; property 
 
 not sent in. 
 
 4626. Delivery of property on stipulation. 
 
 4627. When property may be sold. 
 
 4628. Mode of making sale. 
 
 4629. Transfer of property to another district 
 
 for sale. 
 
 4630. 
 4631. 
 4632. 
 4633. 
 4634. 
 4636. 
 4637. 
 4638. 
 4639. 
 4640. 
 4641. 
 4642. 
 4644. 
 4645. 
 4646. 
 
 4647. 
 
 4650. 
 4651, 
 4652. 
 
 Share of captors. 
 
 Distribution of proceeds to captors. 
 
 What vessels entitled to share. 
 
 WTiat officers entitled to share. 
 
 Determination of shares. 
 
 Appeals and amendments in prize-cases. 
 
 Powers of district court after appeal. 
 
 Security for costs. 
 
 Costa and expenses. 
 
 Payment of expenses from prize-fund. 
 
 Payment of prize-money. 
 
 Distribution of salvage, &c. 
 
 Clerks of district courts; accounts. 
 
 Marshals; commissions allowed. 
 
 District attorney and prize-commission- 
 ers; compensation. 
 
 District attorney and prize-commission- 
 ers; accounts. 
 
 Auctioneers; commissions. 
 
 Witnesses' fees. 
 
 Recaptures; salvage. 
 
 Sec. 4613. [Application of provisions of Title.] The provisions of this Title 
 shall apply to all captures made as prize by authority of the United States, 
 or adopted and ratified by the President of the United States. — (30 June, 1864, 
 c. 174, s. 33, V. 13, p. 315. Mrs. Alexander's Cotton, 2 Wall., 404; The Cotton 
 Plant, 10 Wall., 577.) 
 
 See sections 5310-5311, Revised Statutes, as to captures on inland waters of the United 
 States. 
 
 Sec. 4614. ['Vessels of the Navy," defined.] The term "vessels of the 
 Navy," as used in this Title, shall include all armed vessels officered and manned 
 by the United States, and under the control of the Department of the Navy. — 
 (ibid., s. 32. The Siren, 1 Low., 280.) 
 
 Sec. 4615. [Duties of commanding officer upon making capture.] The com- 
 manding officer of any vessel making a capture shall secure the documents of 
 the ship and cargo, including the log-book, with all other documents, letters, 
 and other papers found on board, and make an inventory of the same, and 
 seal them up, and send them, with the inventorv', to the court in which pro- 
 ceedings are to be had, with a written statement that they are all the papers 
 found, and are in the condition in which they were found; or explaining the 
 absence of any documents or papers, or any change in their condition. He 
 shall also send to such court, as witnesses, the master, one or more of the other 
 officers, the supercargo, purser, or agent of the prize, and any person found on 
 board whom he may suppose to be interested in, or to have knowledge respect- 
 ing, the title, national character, or destination of the prize. He shall send 
 
 1137 
 
Sec. 4617. Pt. 2. REVISED STATUTES. Prize. 
 
 the prize, with the docnments, papers, and witnesses, under charge of a com- 
 petent prize-master and prize-crew, into port for adjudication, explaining the 
 absence of any usual witnesses; and in the absence of instructions from supe- 
 rior authority as to the port to which it shall be sent, he shall select such port 
 as he shall deem most convenient, in view of the interests of probable claimants, 
 as well as of the captors. If the captured vessel, or any part of the captured 
 property, is not in condition to be sent in for adjudication, a survey shall be 
 had thereon and an appraisement made by persons as competent and impartial 
 as can be obtained, and their reports shall be sent to the coiirt in which pro- 
 ceedings are to be had; and such property, unless appropriated for the use of 
 the Government, shall be sold by the authority of the commanding officer 
 present, and the proceeds deposited with the assistant treasurer of the United 
 States most accessible to such court, and subject to its order in the cause. — 
 (Ibid., s. 1, p. 306. The Sally Magee, 3 Wall., 451; The Sir William Peel, 5 
 Wall., 517.) 
 
 See "Instructions for the Navy of the United 
 States f:;ovemino; Maritime Warfare, ' ' Navy 
 Department, June, 1917; see also sections 
 
 4294-4299, and 5310-5311, Revised Stat- 
 utes; and see article 15 of section 1624, 
 Revised Statutes. 
 
 Sec. 4616. [Statement of claim to share in prize.] If an}^ vessel of the United 
 States shall claim to share in a prize, either as having made the capture, or as 
 having been within signal distance of the vessel or vessels making the capture, 
 the commanding officer of such vessel shall make out a written statement of 
 his claim, with the grounds on which it is founded, the principal facts tending 
 to show what vessels made the capture, and what vessels were within signal 
 distance of those making the capture, with reasonable particularity as to 
 times, distances, localities, and signals made, seen, or answered; and such 
 statement of claim shall be signed by him and sent to the court in which pro- 
 ceedings shall be had, and shall bo filed in the cause. — (Ibid., s. 2, p. 307.) 
 
 By Navy personnel act of March 3, 1899, section 
 13 (30 Stat., 1007), it was proAdded that 
 "all pro\dsions of law authorizing the 
 distribution among captors of the whole 
 or any portion of the proceeds of vessels, 
 or any property hereafter captured, con- 
 demned as prize, or providing for the 
 
 payment of bounty for the sinking or 
 destruction of vessels of the enemy here- 
 after occurring in time of war, are hereby 
 repealed." 
 See section 1624, Revised Statutes, articles 16 
 and 17; and see sections 5310 and 5311, 
 Revised Statutes. 
 
 Sec. 4617. [Duties of prize-master.] The prize-master shaU make his way 
 diligently to the selected port, and there immediately deliver to a prize-com- 
 missioner the documents and papers, and the inventory thereof, and make 
 affidavit that they are the same, and are in the same condition as delivered to 
 him, or explaining any absence or change of condition therein, and that the 
 prize-property is in the same condition as delivered to him, or explaining any 
 loss or damage thereto; and he shall further report to the district attorney 
 and give to him all the information in his possession respecting the prize and 
 her capture; and he shall deliver over the persons sent as witnesses to the 
 custody of the marshal, and shall retain the prize in his custody until it shall 
 be taken therefrom by process from the prize-court. — (Ibid., s. 3.) 
 
 See "Instructions for the Navy of the United States governing Maritime Warfare," Navy 
 Department, June, 1917. 
 
 1138 
 
Prize. PL 2. REVISED STATUTES. Sec. 4622 
 
 Sec. 4618. [Libel and proceedings by district attorney.] Upon receiving 
 the report of the prize-master directed l>y tlie preceding section, the attorney 
 of the United States for the district shall immediately file a libel against such 
 prize property, and shall forthwith obtain a warrant from the court, directing 
 the marshal to take it into his custody, and shall proceed diligently to obtain 
 a condemnation and distribution thereof; and to that end shall see that the 
 proper preparator\" evidence is taken by the prize-commissioners, and that 
 the prize-commissioners also take the depositions de bene esse of the prize-crew, 
 and of other transient persons cognizant of any facts bearing on condemnation 
 or distribution. — (Ibid., s. 4.) 
 
 Sec. 4619. [Duties of district attorneys; claim for damages against cap- 
 tors.] The district attorneys of the several judicial districts shall represent 
 the interests of the United States in all prize-causes, and shall not act as sepa- 
 rate counsel for the captors on any private retainer or compensation from them, 
 unless in a question between the claimants and the captors, on a demand for 
 damages. They shall examine all fees, costs, and expenses, sought to be 
 charged on any prize-fund, and protect the interest of the captors and of the 
 United States. The district attorneys of all districts in which any prize- 
 causes are or may be pending shall, as often as once in three months, send to 
 the Secretarv" of the Navj^ a statement of the condition of all prize-causes 
 pending in their districts, in such form and embracing such particulars as the 
 Secretary- of the Navy shall require. — (Ibid.) 
 
 By section 970, Revised Statutes, it is pro\ided the person who made the seizure, nor the 
 
 that ''When, in any prosecution com- 
 menced on account of the seizure of any 
 vessel, goods, wares, or merchandise, made 
 by any collector or other ofHcer, under any 
 act of Congress authorizing such seizure, 
 Judgment is rendered for the claimant, but 
 it appears to the court that there was 
 reasonable cause of seizure, the court shall 
 cause a proper certificate thereof to be 
 entered, and the claimant shall not, in 
 such case, be entitled to costs, nor shall 
 
 prosecutor, be liable to suit or judgment on 
 account of such suit or prosecution: Pro- 
 vided, That the vessel, goods, wares, or 
 merchandise be, after judgment, forthwith 
 returned to such claimant or his agent." 
 See note to Constitution, Article I, section 8, 
 clause 13, under "IV. Responsibility of 
 military authorities for illegal acts"'; see 
 also articles 16 and 17, section 1624, Re- 
 ^■ised Statutes. 
 
 Sec. 4621. [Appointment of prize-commissioners; retired naval officer.] 
 Any district court ma}' appoint prize-commissioners, not exceeding three in 
 number; of whom one shall be a retired naval officer, approved by the Secre- 
 tary of the Navy, who shall receive no other compensation than his pay in 
 the Navy, and w^ho shall protect the interests of the captors and of the Depart- 
 ment of the Navy in the prize-property; and at least one of the others shall 
 be a member of the bar of the court, of not less than three years' standing, and 
 acquainted wdth the taking of depositions. — (30 June, 1864, c. 174, s. 5, v. 13, 
 p. 307.) 
 
 Sec. 4622. [Dnties of prize-commissioners.] The prize-commissioners, or 
 one of them, shall receive from the prize-master the documents and papers, and 
 inventor}' thereof, and shall take the affidavit of the prize-master required by 
 section forty-six hundred and seventeen, and shall forthwith take the testi- 
 mony of the witnesses sent in, separate from each other, on interrogatories 
 prescribed by the court, in the manner usual in prize-courts; and the witnesses 
 shall not be permitted to see the interrogatories, documents, or papers, or to 
 consult with counsel, or with any persons interested, without special authority 
 
 1139 
 
Sec. 4624. PL 2. REVISED STATUTES. Prize. 
 
 from the court; and witnesses who have the rights of neutrals shall be dis- 
 charged as soon as practicable. The prize-commissioners shall also take 
 depositions de bene esse of the prize-crew and others, at the request of the 
 district attorney, on interrogatories prescribed by the court. They shall also, 
 as soon as any prize-property comes within the district for adjudication, examine 
 the same, and make an inventory thereof, founded on an actual examination, 
 and report to the court whether any part of it is in a condition requiring im- 
 mediate sale for the interests of all parties, and notify the district attorney 
 thereof; and if it be necessary to the examination or making of the inventory 
 that the cargo be unladen, they shall apply to the court for an order to the mar- 
 shal to unlade the same, and shall, from time to time, report to the court any- 
 thing relating to the condition of the property, or its custody or disposal, which 
 may require any action by the court, but the custody of the property shall be 
 in the marshal only. They shall also seasonably return into court, sealed and 
 secured from inspection, the documents and papers which shall come to their 
 hands, duly scheduled and numbered, and the other preparatory evidence, 
 and the evidence taken de bene esse, and their own inventory of the prize- 
 property; and if the captured vessel, or any of its cargo or stores, are such as in 
 their judgment may be useful to the United States in war, they shall report 
 the same to the Secretary of the Navy. — (Ibid., s. 6, p. 308.) 
 
 Sec. 4623. [Duties of marshal.] The marshal shall safely keep all prize- 
 property under warrant from the court, and shall report to the court any 
 cargo or other property that he thinks requires to be unladen and stored, or 
 to be sold. He shall insure prize-property, if in his judgment it is for the 
 interest of all concerned. He shall keep in his custody all persons found on 
 board a prize and sent in as witnesses, until they are released by the prize- 
 commissioners or the court. If a sale of property is ordered, he shall sell the 
 same in the manner required by the court, and collect the purchase-money, 
 and forthwith deposit the gross proceeds of the sales with the assistant treasurer 
 of the United States nearest the place of sale, subject to the order of the court 
 in the particular cause; and each marshal shall forward to the Secretary of the 
 Navy, whenever and as often as the Secretary of the Navy may require it, a 
 full statement of the condition of each prize and of the disposal made thereof. — 
 (Ibid., s. 7.) 
 
 Sec. 4624. [Appraisal, etc., of property taken for Government.] Whenever 
 any captured vessel, arms, munitions, or other material are taken for the use 
 of the United States before it comes into the custody of the prize court, it shall 
 be surveyed, appraised, and inventoried, by persons as competent and im- 
 partial as can be obtained, and the survey, appraisement, and inventory shall 
 be sent to the court in which proceedings are to be had ; and if taken afterward, 
 sufficient notice shall first be given to enable the court to have the property 
 appraised for the protection of the rights of the claimants and captors. In all 
 cases of prize-property taken for or appropriated to the use of the Govern- 
 ment, the Department for whose use it is taken or appropriated shall deposit 
 the value thereof with the assistant treasurer of the United States nearest to the 
 place of the session of the court, subject to the order of the court in the cause. — 
 (Ibid., s. 27, p. 314.) 
 
 See ''Instructions for the Navy of the United States governing Maritime Warfare," Navy 
 Department, June 1917. 
 
 1140 
 
Prize. Pt. 2. REVISED STATUTES. Sec. 4628. 
 
 Sec. 4625. [Proceedings for adjudication; property not sent in.] If by 
 reason of the condition of the captured property, or if because the whole has 
 been appropriated to the use of the United States, no part of it has been or can 
 be sent in for adjudication, or if the property has been entirely lost or destroyed, 
 proceedings for adjudication may be commenced in any district the Secretary 
 of the Navy may designate; and in any such case the proceeds of anything 
 sold, or the value of anything taken or appropriated for the use of the United 
 States, shall be deposited wath the assistant treasurer in or nearest to that 
 district, subject to the order of the court in the cause. If, when no property 
 can be sent in for adjudication, the Secretary of the Navy shall not, within 
 three months after any capture, designate a district for the institution of pro- 
 ceedings, the captors may institute proceedings for adjudication in any district. 
 And if in any case of capture no proceedings for adjudication are commenced 
 within a reasonable time, any parties claiming the captured property may, in 
 any district court as a court of prize, move for a monition to show cause why 
 such proceedings shall not be commenced, or institute an original suit in such 
 court for restitution, and the monition issued in either case shall be served on 
 the attorney of the United States for the district, and on the Secretary of the 
 Navy, as well as on such other persons as the court shall order to be notified. — 
 (30 June, 1864, c. 174, s. 28, v. 13, p. 314.) 
 
 See " Instructions for the Navy of the United States governing Maritime Warfare,'' Xavy 
 Department, June 1917. 
 
 Sec. 4626. [Delivery of property on stipulation.] No prize-property shall 
 be delivered to the claimants on stipulation, deposit, or other security, except 
 where there has been a decree of restitution and the captors have appealed 
 therefrom, or where the court, after a full hearing on the preparatory proofs, 
 has refused to condemn the property on those proofs, and has given the captors 
 leave to take furtlier proofs, or where the claimant of any property shall satisfy 
 the court that the same has a peculiar and intrinsic value to him, independent 
 of its market-value. In any of these cases, the court may deliver the property 
 on stipulation or deposit of its value, if satisfied that the rights and interests of 
 the United States and captors, or of other claimants, will not be prejudiced 
 thereby; but a satisfactory appraisement shall be first made, and an oppor- 
 tunity given to the district attorney and naval prize-commissioner to be heard 
 as to the appointment of appraisers. Any money deposited in lieu of stipula- 
 tion, and all money collected on a stipulation, not being costs, shall be deposited 
 with the assistant treasurer, in the same manner as proceeds of a sale. — (Ibid., 
 s. 26, p. 313.) 
 
 Sec. 4627. [When property may be sold.] Whenever any prize-property 
 is condemned, or at any stage of the proceedings is found by the court to be 
 perisliing, perishable, or liable to deteriorate or depreciate, or whenever the 
 costs of keeping the same are disproportionate to its value, the court shall order 
 a sale of such property; and whenever, after the return-day on the libel, all the 
 parties in interest who have appeared in the cause agree thereto, the court may 
 make such order; and no appeal shall operate to prevent the making or execu- 
 tion of such order. — (Ibid., s. 8, p. 308.) 
 
 Sec. 4628. [Mode of making sale.] Upon a sale of any prize-property by 
 order of the court, the Secretary of the Navy shall employ an auctioneer of 
 
 1141 
 
Sec. 4631. Pt. 2. REVISED STATUTES. Prize. 
 
 known skill in the branch of business to which any sale pertains, to make the 
 sale, but the sale shall be conducted under the supervision of the marshal, and 
 the collecting and depositing of the gross proceeds shall be by the auctioneer or 
 his agent. Before any sale the marshal shall cause full catalogues and schedules 
 to be prepared and circulated, and a copy of each shall be returned by the 
 marshal to the court in each cause. The marshal shall cause all sales to be 
 advertised fully and conspicuously in newspapers ordered by the court, and by 
 posters, and he shall, at least five days before the sale, serve notice thereof 
 upon the naval prize-commissioner, and the goods shall be open to inspection 
 at least three days before the sale. — (Ibid.) 
 
 Sec. 4629. [Transfer of property to another district for sale.] Whenever it 
 appears to the court, in the case of any prize-property ordered to be sold, that 
 it will be for the interest of all parties to have it sold in another district, the 
 court may direct the marshal to transfer the same to the district selected by 
 the court for the sale, and to insure the same, %Wth proper orders as to the time 
 and manner of selling the same. It shall be the duty of the marshal so to 
 transfer the property, and keep and sell the same in like manner as if the prop- 
 erty were in his own district; and he shall deposit the gross proceeds of the 
 sale with the assistant treasurer nearest to the place of sale, subject to the 
 order of the court in which the adjudication thereon is pending. The neces- 
 sary expenses attending the insuring, transferring, receiving, keeping, and 
 selling the property shall be a charge upon it and upon the proceeds thereof; 
 and whenever any such expense is paid in advance by the marshal, and he 
 is not repaid from the proceeds, any amount not so repaid shall be allowed to 
 him, as in case of expenses incurred in suits in which the United States is a 
 party. The Secretary of the Navy may, in like manner, either by a general 
 regulation or by special direction in any cause, require a marshal to transfer 
 any prize-property from the district in which the judicial proceedings are 
 pending, to any other district for sale; and the same proceedings shall be had 
 as if such transfer had been made by order of the com-t. — (Ibid., s. 30, p. 315.) 
 
 Sec. 4630. [Share of captors.] The net proceeds of all property condemned 
 as prize, shall, w^hen the prize was of superior or equal force to the vessel or 
 vessels making the capture, be decreed to the captors; and when of inferior 
 force, one-half shall be decreed to the United States and the other half to the 
 captors, except that in case of privateers and letters of marque, the whole 
 shall be decreed to the captors, unless it shall be otherwise provided in the com- 
 missions issued to such vessels. — (Ibid., s. 10, p. 309.) 
 
 See act of March 3, 1899, quoted under section 4616, Revised Statutes; and see sections 5310 
 and 5311, Revised Statutes. 
 
 Sec. 4631. [Distribution of proceeds to captors.] All prize-money adjudged 
 to the captors shall be distributed in the following proportions: 
 
 First. To the commanding officer of a fleet or squadron, one- twentieth 
 part of all prize money awarded to any vessel or vessels under his immediate 
 command. 
 
 Second. To the commanding officer of a division of a fleet or squadron, 
 on duty under the orders of the commander-in-chief of such fleet or squadron, 
 a sum equal to one-fiftieth part of any prize-mone}" awarded to a vessel of 
 
 1142 
 
diatribution of salvage, etc.; see also sec- 
 tions 5310 and 5311, Revised Statutes. 
 
 Prize. Pt. 2. REVISED STATUTES. Sec. 4633. 
 
 such division for a capture made while under his command, such fiftieth part 
 to be deducted from the moiety due to tlie United States, if there be such 
 moiety, otherwise from the amount awarded to the captors; but such fiftieth 
 part shall not be in addition to any share which may be due to the comman- 
 der of the division, and which he may elect to receive, as commander of a 
 single ship making or assisting in the capture. 
 
 Third. To the fieet-captain, one-hundredth part of all prize-money 
 awarded to any vessel or vessels of the fleet or squadron in which he is serving, 
 except in a case where the capture is made by the vessel on board of which he 
 is serving at the time of such capture; and in such case he shall share, in pro- 
 portion to his pay, with the other officers and men on board such vessel. 
 
 Fourth. To the commander of a single vessel, one-tenth part of all the 
 prize-money awarded to the vessel under his command, if such vessel at the 
 time of the capture was under the command of the commanding officer of a 
 fleet or squadron, or a division, and tlu'ee-twentieths if his vessel was acting 
 independently of such superior officer. 
 
 Fifth. After the foregoing deductions, the residue shall be distributed 
 and proportioned among all others doing duty on board, including the fleet- 
 captain, and borne upon the books of the ship, in proportion to their respective 
 rates of pay in the service. — (Ibid. 8 June, 1874, c. 256, v. 18, p. 63.) 
 
 See act of March 3, 1899, quoted under section 
 4616, Revised Statutes; and see sections 
 4642 and 4652, Revised Statutes, as to 
 
 Sec. 4632. [What vessels entitled to share.] All vessels of the Navy within 
 signal-distance of the vessel or vessels making the capture, under such circum- 
 stances and in such condition as to be able to render effective aid, if required, 
 shall share in the prize; and in case of vessels not in the Navy, none shall be 
 entitled to share except the vessel or vessels making the capture; in which 
 term shall be included vessels present at and rendering actual assistance in 
 the capture.— (30 June, 1864, c. 174, s. 10, v. 13, p. 309.) 
 
 See act of March 3, 1899, quoted under section 4642 and 4652, Revised Statutes, as to dia- 
 
 4616, Revised Statutes; and see sections tribution of salvage, etc. 
 
 Sec. 4633. [What officers entitled to share.] No commanding officer of a 
 fleet or squadron shall be entitled to receive any share of prizes captured by 
 any vessel or vessels not under his command, nor of such prizes as may have 
 been captured by any vessels intended to be placed under his command, before 
 they have acted under his orders. Nor shall the commanding officer of a 
 fleet or squadron, leaving the station where he had command, have any share 
 in the prizes taken by ships left on such station after he has gone out of the 
 limits of his command, nor after he has transferred his command to his suc- 
 cessor. No officer or other person who shall have been temporarily absent 
 on duty from a vessel on the books of which he continued to be borne, while so 
 absent, shall be deprived, in consequence of such absence, of any prize-money 
 to which he would otherwise be entitled. And he shall continue to share in 
 the captures of the vessels to which he is attached, until regularly discharged 
 therefrom.— (30 June, 1864, c. 174, s. 10, v. 13, c. 309.) 
 
 See act of March 3, 1899, quoted under section , 4642 and 4652, Revised Statutes, aa to dis- 
 
 4616, Revised Statutes; and see sections i tribution of salvage, etc. 
 
 1143 
 
Sec. 4640. PL 2. REVISED STATUTES. Prize. 
 
 Sec. 4634. [Determination of shares.] Wlienever a decree of condemnation 
 is rendered, the court shall consider the claims of all vessels to participate in 
 the proceeds, and for that purpose shall, at as early a stage of the cause as 
 possible, order testimony to be taken tending to show what part should be 
 awarded to the captors, and what vessels are entitled to share; and such testi- 
 mony may be sworn to before any judge or commissioner of the courts of the 
 Ignited States, consul or commercial agent of the United States, or notary 
 public, or any officer of the Navy highest in rank, reasonably accessible to the 
 deponent. The court shall make a decree of distribution, determining what 
 vessels are entitled to share in the prize, and whether the prize was of superior, 
 equal, or inferior force to the vessel or vessels making the capture. The decree 
 shall recit« the amount of the gross proceeds of the prize subject to the order 
 of the court, and the amount deducted therefrom for costs and expenses, and 
 the amount remaining for distribution, and whether the whole of such residue 
 is to go to the captors, or one-half to the captors, and one-half to the United 
 States.— (Ibid., s. 9.) 
 
 See act of March 3, 1899, quoted under section I 4642 and 4652, Re\T.sed Statutes, as to dis- 
 
 4616, Re\dsed Statutes; and see sections ! tribution of salvage, etc. 
 
 Sec. 4636. [Appeals and amendments in prize cases.] The Supreme Court 
 may, if, in its judgment, the purposes of justice require it, allow any amend- 
 ment, either in form or substance, of any appeal in prize cases, or allow a prize 
 appeal therein, if it appears that any notice of appeal or of intention to appeal 
 was filed with the clerk of the district court within thirtv davs next after the 
 rendition of the final decree therein. — (3 Mar., 1873, c. 230, s. 2, v. 17, p. 556.) 
 
 Sec. 4637. [Powers of district court after appeal.] Notwithstanding any 
 appeal to the Supreme Court, the district court may make and execute all 
 necessary orders for the custody and disposal of the prize-property; and in case 
 of appeal from a decree of condemnation, may still proceed to make a decree 
 of distribution so far as to determine what share of the prize shall go to the 
 captors, and what vessels are entitled to participate therein. — (30 June, 1864^ 
 0. 174, s. 13, V. 13, p. 310.) 
 
 See act of March 3, 1899, quoted under section 4616, Revised Statutes. 
 
 Sec. 4638. [Security for costs.] The court may require any party, at any 
 stage of the cause, and on claiming an appeal, to give security for costs. — 
 (Ibid., s. 15, p. 311.) 
 
 Sec. 4639. [Costs and expenses.] All costs and all expenses incident to the 
 bringing in, custody, preservation, insurance, sale, or other disposal of prize- 
 property, when allowed by the court, shall be a charge upon such property, and 
 shall be paid from the proceeds thereof, unless the court shall decree restitution 
 free from such charge. — (Ibid., s. 14.) 
 
 Sec. 4640. [Payment of expenses from prize-fund.] No payments shall be 
 made for any prize-fund, except upon the order of the court. All charges for 
 work and labor, materials furnished, or money paid, shall be supported by affi- 
 davit or vouchers. The court may, at any time, order the payment, from the 
 deposit made with the assistant treasurer in the cause, of any costs or charges 
 accrued and allowed. "When the cause is finally disposed of, the court shall 
 make its order or orders on the assistant treasurer to pay the costs and charges 
 
 1144 
 
Prize. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 4644. 
 
 allowed and unpaid; and in case the final decree shall be for restitution, or in 
 case there shall be no money subject to the order of the court in the cause, any 
 costs or charges allowed by the court, and not paid by the claimants, shall be a 
 charge upon, and be paid out of, the fund for defraying the expenses of suits in 
 which the United States is a party or interested. — (Ibid.) 
 
 Sec, 4641. [Payment of prize money.] The net amount decreed for distribu- 
 tion to the United States, or to vessels of the Navy, shall be ordered by the court 
 to be paid into the Treasury of the United States, to be distributed according 
 to the decree of the court. The Treasury Department shall credit the Navy 
 Department ^\^th each amount received to be distributed to vessels of the Navy; 
 and the persons entitled to share therein shall be severally credited in their 
 accounts with the Navy Department with the amounts to which they are 
 respectively entitled. In case of vessels not of the Navy, and not controlled by 
 any Department of the Government, the distribution shall be made by the court 
 to the several parties entitled thereto, and the amounts decreed to them shall 
 be divided between the owners and the ship's company, according to any \\Titten 
 agreement between them, and in the absence of such agreement, one-half to the 
 o\\Tiers and one-half to the ship's company, according to their respective rates 
 of pay on board; and the court may appoint a commissioner to make such dis- 
 tribution, subject to the control of the com"t,who shall make due return of his 
 doings, with proof of actual payments by him, and who shall receive no other 
 compensation, directly or indirectly, than such as shall be allowed him hy the 
 court. In case of vessels not of the Navy, but controlled by either Executive 
 Department, the whole amount decreed to the captors shaU be divided among 
 the ship's company. — (Ibid., s. 16.) 
 
 See act of March 3, 1899, quoted under section 4616, Revised Statutes. 
 
 Sec. 4642. [Distribution of salvage, etc.] All ransom-money, salvage, 
 bounty, or proceeds of condemned property, accruing or awarded to any vessel 
 of the Navy, shall be distributed and paid to the officers and men entitled thereto 
 in the same manner as prize-money, under the direction of the Secretary of the 
 Navy.— (Ibid., s. 11, p. 310.) 
 
 See act of March ,3, 1899, noted under section 
 4616, Revised Statutes. 
 
 By act of July 1, 1918 (40 Stat., 705), it was 
 pro\'ided "that hereafter the Secretary of 
 the Navy is authorized to cause vessels 
 under his control adapted to the purpose, 
 to afford salvage service to public or private 
 vessels in distress: Provided, That when 
 
 such salvage service is rendered by a ves- 
 sel specially equipped for the purpose or by 
 a tug, the Secretary of the Navy may deter- 
 mine and collect reasonable compensation 
 therefor. " 
 See act of March 9, 1920, sections 10 and 11 
 {41 Stat., 528), relating to suits for salvage. 
 
 Sec. 4644. [Clerks of district courts ; accounts.] The clerk of each district 
 court shall render, to the Secretary' of the Treasury and the Secretary of the 
 Navy, a semi-annual statement of all the sums allowed by the court, and 
 ordered to be paid, within the previous half-year, to the district attorney and 
 prize-commissioners for services, and to marshals for fees and commissions; and 
 he shall, in all prize-causes in the district, for the pm-pose of the final decree of 
 distribution, ascertain and keep an account of the amount deposited with the 
 assistant treasurer, subject to the order of the court, in each prize-cause, and the 
 amounts ordered to be paid therefrom as costs and charges, and the residue for 
 distribution; and shall send copies of all fiual decrees of distribution to the 
 
 1145 
 
Sec. 4650. Ft. J. REVISED STATUTES. Prize. 
 
 Secretary of the Treasury and the Secretary of the Navy; and shall draw the 
 orders of the court for the payment of all costs and allowances, and for the dis- 
 trihution of the residue. For these services he shall be entitled to receive the 
 sum of twenty-five dollars in each prize-cause, which shall be in full for the serv- 
 ices required l)y thi.s action. — (Ibid., s. 17, p. 312.) 
 
 Sec. 4645. [Marshals ; commissions allowed.] The marshal shall be allowed 
 his actual and necessary expenses for the custody, care, preservation, insurance, 
 sale, or other disposal of the prize-property, and for executing any order of the 
 court respecting the same, and shall have a commission of one-quarter of one per 
 centum on vessels, and of one-half of one per centum on all other prize-property, 
 calculated on the gross proceeds of each sale; and if, after he has had any 
 prize-property in his custody, and has actually performed labor and incurred 
 responsibility for the care and preservation thereof, the same is taken by the 
 United States for its own use without a sale, or if it is delivered on stipulation to 
 the claimants, he shall, in case the same is condemned, be entitled to one-half 
 the above commissions on the amount deposited by the United States to the 
 order of the courts, or collected upon the stipulation. No charges of the 
 marshal for expenses or disbursements shall be allowed, except upon his oath 
 that the same have been actually and necessarily incurred for the purpose 
 stated.— (Ibid., s. 18.) 
 
 Sec. 4646. [District attorney and prize-commissioners; compensation.] 
 The district attorney and prize-commissioners, except the naval officer, shall 
 be allowed a just and suitable compensation for their respective services in each 
 prize-cause, to be adjusted and determined by the court, and to be paid as costs 
 in the cause. — (Ibid., s. 20.) 
 
 See section 3667, Revised Statutes, and note thereto, as to naval pension fund. 
 
 Sec. 4647. [District attorney and prize-commissioners; accounts.] Each 
 district attorney and prize-commissioner, except the naval officer, shall render 
 to the Attorney-General an annual account of all sums he shall have received 
 for all services in prize-causes within the previous year; and the district attorney 
 shall be allowed to retain therefrom a sum not exceeding three thousand dollars 
 a year, in addition to the maximum compensation allowed to be retained by 
 him; under the provisions of Title XIII, "The Judiciary," or in addition to 
 any salary he may receive in lieu of such maximum compensation; and each 
 such prize-commissioner shall be allowed to retain a sum not exceeding three 
 thousand dollars a year, which shall be in full for all his official services in 
 prize-causes; and any excess over those respective amounts shall be paid by 
 the officer receiving the same into the Treasury of the United States, and shall 
 be credited to the fund for paying naval pensions. — (30 June, 1864, c. 174, s. 
 21, V. 13, p. 312. 22 Juno, 1870, c. 150, s. 15, v. 16, p. 164.) 
 
 Sec. 4650. [Auctioneers ; commissions.] The auctioneers employed to make 
 sales of prize-property shall be entitled to receive commissions by a scale to be 
 established by the Secretary of the Navy, not to exceed, in any case, one-half of 
 one per centum on any sum exceeding ten thousand dollars on vessels, nor one 
 per centum on that sum on other prize-property, which shall be in full for 
 expenses, as well as for services; and in case no such scale shall be established, 
 they shall be entitled to receive such compensation as the court shall deem just 
 under the circumstances of each case. — (Ibid., s. 22.) 
 
 1146 
 
Prize. Pt. 2. REVISED STATUTES. Sec. 4652. 
 
 Sec. 4651. [Witnesses' fees.] Wlienever the court shall allow fees to any 
 witness in a prize-cause, or fees for taking evidence out of the district in which 
 the court sits, and there is no money subject to its order in the cause, the same 
 shall be paid by the marshal, and shall be repaid to him from any money 
 deposited to the order of the court in the cause; and any amount not so repaid 
 the marshal shall be allowed as witness-fees paid by him in cases in which the 
 United States is a party.— (30 June, 1864, c. 174, s. 25, v. 13, p. 313.) 
 
 Sec. 4652. [Recaptures; salvage.] When any vessel or other property shall 
 have been captured by any force hostile to the United States, and shall be 
 recaptured, and it shall appear to the court that the same had not been con- 
 demned as prize before its recapture, by any competent authority, the court 
 shall award a meet and competent sum as salvage, according to the circum- 
 stances of each case. If the captm^ed property belonged to the United States, 
 it shall be restored to the United States, and there shall be paid from the 
 Treasury of the United States the salvage, costs, and expenses ordered by the 
 court. If the recaptured property belonged to persons residing within or 
 under the protection of the United States, the court shall adjudge the property 
 to be restored to its owners, upon their claim, on the payment of such sum as 
 the court may award as salvage, costs, and expenses. If the recaptured prop- 
 erty belonged to any person permanently resident within the territory and 
 under the protection of any foreign prince, government, or state in amity wdth 
 the United States, and by the law or usage of such prince, government, or 
 state, the property of a citizen of the United States would be restored under 
 like circumstances of recapture, it shall be adjudged to be restored to such 
 owner, upon his claim, upon such terms as by the law or usage of such prince, 
 government, or state would be required of a citizen of the United States under 
 like circumstances of recapture; or when no such law or usage shall be known, 
 it shall be adjudged to be restored upon the payment of such salvage, costs, and 
 expenses as the court shall order. The whole amount awarded as salvage 
 shall be decreed to the captors, and no part to the United States, and shall be 
 distributed as in the case of proceeds of property condemned as prize. Nothing 
 in this Title shall be construed to contravene any treaty of the United States. — 
 (Ibid., s. 29, p. 314.) 
 
 See section 4642, Revised Statutes, and note thereto, as to distribution of salvage. 
 
 54641 °— 22 73 1 147 
 
TITLE LV. 
 
 LIGHTS AND BUOYS. 
 
 Sec. 4679. [Light-House Board ; no additional compensation to officers.] No 
 additional salary shall ])e allowed to any civil, military, or naval officer on 
 account of his being employed on the Light-House Board, or being in any 
 manner attached to the light-house service. — (31 Aug., 1852, c. 112, s. 17, 
 V. 10, p. 120.) 
 
 By act of June 17, 1910, section 4 (36 Stat., 537), 
 a bureau of light-houses was established in 
 the Department of Commerce and Labor 
 (now the Department of Commerce); and 
 by section 5 of the same act it was provided 
 that "all employees of or in the Light- 
 House Board or the Light-House Estab- 
 lishment are hereby transferred to the 
 bureau of light-houses, excepting, how- 
 ever. Army and Navy officers." 
 
 "Hereafter officers of the Army and Navy de- 
 tailed for service in connection with the 
 Light-House Establishment shall be paid 
 their actual traveling expenses when trav- 
 eling under orders on official duty to and 
 from points which can not be conveniently 
 reached by vessel or I'ailroad." (Act Feb. 
 26, 1907, see. 6, 34 Stat., 997; see also sec. 
 1566, R. S., and notes thereto, as to mile- 
 age and actual expenses of naval officers 
 traveling on duty.) 
 
 By section 4671, Revised Statutes, it was pro- 
 \ided that "an officer of the Army or Navy 
 shall be assigned to each district as a light- 
 house inspector, subject to the orders of 
 the Light-House Board;" etc. Said sec- 
 tion was expressly repealed by the act of 
 June 17, 1910, section 13 (36 Stat., 539), 
 which said act, section 11 (36 Stat., 538, 
 539) proAdded that "the President may, for 
 a period not exceeding three years fi"om the 
 taking effect of this section, assign Amiy 
 and Navy officers to act in lieu of the 
 appointment of civilian light-house in- 
 spectors, but such Army and Navy officers 
 shall not receive any salary or compensation 
 in addition to the salary or compensation 
 they are entitled to as such Army or Navy 
 officers." 
 
 1149 
 
TITLE LVL 
 
 the mode of executing the survey which 
 has been submitted to the President by a 
 board of officers organized under the act 
 of March three, eighteen hundred and 
 forty-three, cliapter one hundred." 
 
 THE COAST SURVEY. 
 
 Sec. 4684. [Employment of officers of Army and Navy.] The President 
 shall carry into effect the plan of the board, as agreed upon by a majority of 
 its members; and shall cause to be employed as many officers of the Army 
 and Navy of the United States as will be compatible with the successful prose- 
 cution of the work; the officers of the Navy to be employed on the hydro- 
 graphical parts, and the officers of the Army on the topographical parts of 
 the work; and no officer of the Army or Navy shall receive any extra pay 
 out of any appropriations for surveys. — ^(Ibid.) 
 
 The "board "' referred to in this section is that 
 provided for in section 4683, Revised 
 Statutes, as follows: "All appropriations 
 made for the work of surveying the coast 
 of the United States shall be expended in 
 accordance with the plan of reorganizing 
 
 Sec. 4686. [Power to employ vessels.] The President is authorized, for 
 any of the purposes of surveying the coast of the United States, to cause to 
 be employed such of the public vessels in actual service as he deems it expedient 
 to employ, and to give such instructions for regulating their conduct as he 
 deems proper, according to the tenor of this Title. — (10 Feb., 1807, c. 8, s. 3, 
 V. 2, p. 414. 14 April, 1818, c. 58, s. 1, v. 3, p. 425.) 
 
 Sec. 4687. [Officers of the Army and Navy; manner of employment.] Offi- 
 cers of the Army and Navy shall, as far as practicable, be employed in the 
 work of surveying the coast of the United States, whenever and in the manner 
 required by the Department having charge thereof. — (17 June, 1844, c. 105, 
 s. 1, V. 5, pp. 681, 691.) 
 
 Sec. 4688. [Allowance for subsistence.] The Secretary of the Treasiu-y 
 may make such allowances to the officers and men of the Army and Navy, 
 while employed on Coast Survey service, for subsistence, in addition to their 
 compensation, as he may deem necessary, not exceeding the sum authorized 
 by the Treasury regulation of the eleventh day of May, eighteen hundred and 
 forty-four.— (12 June, 1858, c. 154, s. 1, v. 11, pp. 319, 320.) 
 
 For restriction upon allowance to officers of 
 Army and Navy attached to the Coast and 
 
 Geodetic Survey, see act August 30, 1890 
 (26 Stat, 382.) 
 
 1151 
 
TITLE LVII. 
 PENSIONS. 
 
 [By Act op October 6, 1917, as amended by Act of June 25, 1918, Section 17, it was Enacted 
 IN Section 312 thereof (40 Stat., 408, 613), that "The Laws Providing for Gratuities 
 or Payments in the Event of Death in the Service and Existing Pension Laws Shall 
 Not be Applicable After the Enactment of this Amendment to Any Person in the 
 Active Military or Naval Service on the Sixth Day of October, Nineteen Hundred 
 AND Seventeen, or Who Thereafter Entered the Active Military or Naval Service, 
 OR to Their Widows, Children, or Their Dependents, Except In So Far As Rights 
 Under Any Such Law Have Heretofore Accrued."] 
 
 Sec. 
 
 4750. Navy pension fund, Secretary of the 
 Navy trustee. 
 
 4752. Navy pension fund, prize money accru- 
 
 ing to United States. 
 
 4753. Navy pension fund, how invested. 
 
 4754. Navy pension fund, rate of interest 
 
 4755. Navy pensions payable from fund. 
 
 4756. DisalDled enlisted men, twenty years' 
 
 service. 
 
 Sec. 
 
 4757. 
 
 4787. 
 
 4788. 
 
 4789. 
 
 4790. 
 
 4791. 
 
 Disabled enlisted men, ten years' service. 
 
 Artificial limbs. 
 
 Commutation for artificial limbs. 
 
 Commutation paid by Commissioner of 
 Pensions. 
 
 Commutation to those who can not use 
 artificial limb. 
 
 Transportation to persons receiving arti- 
 ficial limbs. 
 
 Sec. 4750. [Navy pension-fund, Secretary of the Navy trustee.] The Secre- 
 tary of the Navy shall be trustee of the Navy pension-fund. — (10 July, 1832, 
 c. 194, s. 1, V. 4, p. 572.) 
 
 See sections 3667, 3689, 4647, and 4752-4757, 
 Rev-ised Statutes. 
 
 Maintenance of Naval Home. — The annual 
 naval appropriation act, in appropriating 
 for the maintenance of the Naval Home, 
 Philadelphia, Pa., provides that the sum 
 80 appropriated "shall be paid out of the 
 income of the naval pension fund" (e. g., 
 act June 4, 1920, 41 Stat., 818). 
 
 Payment of naval pensions. — The annual act 
 making appropriation for Army and Navy- 
 pensions provides that the sum so appro- 
 priated for Navy pensions "shall be paid 
 from the income of the Navy pension fund, 
 so far as the same shall be sufficient for that 
 purpose" (e.g., act. Feb. 16, 1921, 41 Stat., 
 1104). See also section 4755, Revised 
 Statutes. 
 
 History of naval pension fund. — See "Manual 
 for the Medical Department of the United 
 
 States Navy," 1917, paragraphs 3761- 
 3784. 
 
 "All moneys derived from the sale of material 
 at the Naval Home, which was originally 
 purchased from moneys appropriated from 
 the income from the naval pension fund, 
 and all moneys derived from the rental oi 
 Naval Home property, shall hereafter be 
 turned into the naval pension fund." 
 (Act Mar. 4, 1917, 39 Stat., 1175.) 
 
 Pensions of deceased inmates of the Naval 
 Home are to escheat to the naval pension 
 fund in certain cases. (See act June 30, 
 1914, 38 Stat., 398, quoted under sec. 4813, 
 R. S.) 
 
 Money belonging to deceased inmates of the 
 Naval Home is to be credited to the naval 
 pension fund in certain cases. (See act 
 June 30, 1914, 38 Stat., 398.) 
 
 Sec. 4762. [Navy pension-fund, prize money accruing to United States.] 
 All money accruing or which has ah'eady accrued to the United States from 
 sale of prizes shall be and remain forever a fund for the payment of pensions to 
 the officers, seamen, and marines who may be entitled to receive the same; and if 
 such fund be insufficient for the purpose, the public faith is pledged to make 
 up the deficiency; but if it should be more than sufficient, the surplus shall be 
 
 1153 
 
Sec. 4756. PL 2. REVISED STATUTES. Pensions. 
 
 apj)lied to the making of further provision for the comfort of the disabled 
 officers, seamen, and marines. — (17 July, 1862, c. 204, s. 11, v. 12, p. G07.) 
 
 See note to section 4750, Revised Statutes; and see sections 4613^652, Re\dsed Statute?, as to 
 capture and sale of prizes. 
 
 Sec. 4753. [Navy pension-fund, how invested.] The Secretary of the Navy, 
 as trustee of the naval j^onsion-fund, is directed to cause to be invested in the 
 registered securities of the United States, on the first day of January and the 
 fij-st day of July of each year, so much of such fund then in the Treasury of the 
 Unitod States as may not be required for the payment of naval pensions for 
 the then current fiscal year; and upon the requisition of the Secretary, so much 
 gf the fund as may not be required for such payment of pensions accruing 
 during the current fiscal year shall be held in the Treasury on the days above 
 named in each year, subject to his order, for the purpose of such immediate 
 investment; and the interest payable in coin upon the securities in which the 
 fund may be invested, shall be so paid, when due, to the order of the Secretary 
 of the Navy, and he is authorized and directed to exchange the amount of 
 such interest when paid in coin, for so much of the legal currency of the United 
 States as may be obtained therefor at the current rates of premium on gold, 
 and to deposit the interest so converted in the Treasury to the credit of the 
 naval pension-fund; but nothing herein contained shall be construed to inter- 
 fere Avith the payment of naval pensions under the supervision of the Secretary 
 of the Interior, as regulated by law. — (1 July, 1864, Res. No. 62, v. 13, p. 414.) 
 
 See note to section 4750, Revised Statutes. 
 
 Sec. 4754. [Navy pension-fund, rate of interest.] The interest on the naval 
 pension-fund shall hereafter be at the rate of three per centum per annum in 
 la\vful money.— (23 July, 1868, c. 229, s. 2, v. 15, p. 170.) 
 
 See note to section 4750, Revised Statutes. 
 
 Sec. 4755. [Navy pensions payable from fund.] The Navy pensions shall be 
 paid from the Navy pension-fund, but no payments shall be made therefrom 
 except upon appropriations authorized by Congress. — (23 July, 1868, c. 229, 
 s. 2, V. 15, p. 170. 11 July ,1870, c. 238, v. 16, p. 222. 20 June, 1874, c. 335, 
 V. 18, p. 115. 23 Mar., 1876, c. 30, v. 19, p. 8. 19 Jan., 1877, c. 27, v. 19, 
 p. 224.) 
 
 See note to section 4750, Revised Statutes. 
 
 Sec. 4756. [Disabled enlisted men, twenty years' service.] There shall be 
 paid out of the naval pension-fund to every person who, from age or infirmity, 
 is disabled from sea-service, but who has served as an enlisted person or as an 
 appointed petty officer, or both, in the Navy or Marine Corps for the period of 
 twenty years, and not been discharged for misconduct, in lieu of being pro- 
 vided wath a home in the Naval Asylum, Philadelphia, if he so elects, a sum 
 equal to one-half the pay of his rating at the time he was discharged, to be 
 paid to him quarterly, under the direction of the Commissioner of Pensions; 
 and applications for such pension shall be made to the Secretary of the Navy, 
 who, upon being satisfied that the applicant comes within the provisions of 
 this section, shall certify the same to the Commissioner of Pensions, and such 
 certificate shall be his warrant for making payment as herein authorized. — 
 (2. Mar., 1867, c. 174, s. 6, v. 14, p. 516.) 
 
 1154 
 
Pensions. 
 
 PL 2. REVISED STATUTES. 
 
 Sec. 4767. 
 
 This section was expressly amended to read as 
 above by act of December 23, 1886 (24 
 Stat., 353), the amendment consisting of 
 inserting therein the words, "or as an 
 appointed petty officer, or both," after the 
 words, "as an enlisted person." 
 "The laws providing for gratuities or payments 
 in the event of death in the service and 
 existing pension laws shall not be applica- 
 ble after the enactment of this amendment 
 to any person in the active military or 
 naval service on the sixth day of October, 
 nineteen hundred and seventeen, or who 
 thereafter entered the active military or 
 naval ser\dce, or to their widows, cliildren, 
 or their dependents, except in so far as 
 rights under any such law have heretofore 
 accrued." (Act Oct. 6, 1917, sec. 312, 40 
 Stat., 408, as amended by act of June 25, 
 1918, sec. 17, 40 Stat., 613.) 
 " The pensions of beneficiaries of the Naval 
 Home shall be disposed of in the same man- 
 ner as prescribed for inmates of the Soldiers' 
 Home, * * * vmder such regulations 
 as the Secretary of the Navy may pre- 
 scribe." (Act June 30, 1914, 38 Stat., 
 398.) See note to section 4813, Revised 
 Statutes. 
 Jurisdiction of the Secretary of the 
 Navy.— The Secretary of the Navy has ex- 
 clusive jurisdiction to determine who are 
 entitled to the money benefits granted by sec- 
 tion 4756 of the Revised Statutes, and after that 
 official has issued a certificate allowing same, 
 the Commissioner of Pensions, in making pay- 
 ment of said money benefits, acts only in a 
 ministerial capacity. (31 Op. Atty. Gen., 
 127; affirmed. Op. Atty. Gen., Nov. 7, 1917, 
 file 26510-1022: 11; see C. M. O. 37-1918, 
 p. 20.) 
 
 See note to section 471, Revised Statutes, as 
 to jurisdiction of the Secretary of the Navy and 
 the (Commissioner of Pensions. 
 
 Effect of War Risk Insurance Act. — 
 Section 4756, Re\'ised Statutes, is, under the 
 established practice of the Navy Department, 
 to be regarded as one of the ' ' existing pension 
 laws " referred to in section 312 of the War Risk 
 Insurance Act of October 6, 1917 (quoted 
 above). Payments under section 4756 can not, 
 therefore, be any longer made except so far as 
 rights under the said section had accrued on 
 October 6, 1917. (31 Op. Atty. Gen., 296.) 
 
 A sergeant in the Marine Corps who, prior to 
 the enactment of the War Risk Insurance Act 
 of October 6, 1917 (above quoted), had served 
 in the corps for more than 21 years, and who had 
 become "disabled from sea ser\ice" by a 
 
 wound received in action in June 1916, but 
 who, though entitled to honorable discharge 
 from the service on October 6, 1917, did not 
 actually receive his discharge until November 
 5, 1917, is entitled both to the benefits of sec- 
 tion 4756, Revised Statutes, and also to what- 
 ever allowance he may be otherwise entitled 
 to under the provisions of the War Risk In- 
 surance Act. (31 Op. Atty. Gen., 296.) 
 
 In this case the rights of the sergeant under 
 section 4756 had "accrued " on October 6, 1917, 
 and the fact that he did not actually receive his 
 discharge until November 5, 1917, isimmaterial. 
 (31 Op.^Atty. Gen., 296.) 
 
 Allowance in addition to pension. — 
 Allowances under sections 4756 and 4757, 
 Re\'ised Statutes, do not fall -nathin the pro- 
 hibition of section 4715, Re\'ised Statutes 
 (prohibiting the allowance of more than one 
 pension at the same time), and may therefore 
 be paid in addition to a pension under the 
 general pension laws. (31 Op. Atty. Gen., 
 268.) 
 
 Allowance in addition to War Risk 
 compensation. — Assuming that the pro- 
 \T.sions of the War Risk Insurance Act, provid- 
 ing compensation for injmies, are to be regarded 
 as constituting a general pension law, never- 
 theless the prohibition of section 4715, Revised 
 Statutes, against the allowance of more than 
 one pension at the same time to the same per- 
 son does not affect the case of allowances under 
 section 4756, Revised Statutes. (31 Op. Atty. 
 Gen., 296, citing 31 Op. Atty. Gen., 268.) 
 
 See note above, under "Effect of War Risk 
 Insurance Act." 
 
 Allow^ance to inmates of Naval Home. — 
 The money benefits pro^dded for in section 
 4756 of the Revised Statutes are "pensions" 
 within the purview of section 4813 of the Re- 
 ■\dsed Statutes and the pertinent provision of the 
 act of June 30, 1914 (quoted above), and such 
 money benefits inure to the grantees concui'- 
 rently with maintenance in the Naval Home. 
 (31 Op. Atty. Gen., 268. See sees. 4757 and 
 4813, R. S., and notes thereto.) 
 
 Allowance to inmates of St. Elizabeths 
 Hospital. — Allowances under sections 4756 
 and 4757, Revised Statutes, which accrue to 
 inmates of St. Elizabeths Hospital, should be 
 paid to the superintendent of the hospital, 
 notwithstanding such inmates are represented 
 by a legal guardian or committee. (31 Op. 
 Atty. Gen., 354.) See sections 1551, 4838, and 
 4839, Revised Statutes. 
 
 For other cases, see note to section 4757, 
 Revised Statutes. 
 
 Sec. 4757. [Disabled enlisted men, ten years' service.] Every disabled 
 person who has served in the Navy or Marine Corps as an enhsted man or as 
 an appointed petty officer, or both, for a period not less than ten years, and not 
 been discharged for misconduct, may apply to the Secretary of the Navy for 
 aid from the surplus income of the naval pension-fund; and the Secretary of 
 the Navy is authorized to convene a board of not less than three naval officers, 
 one of vyhom shall be a surgeon, to examine into the condition of the applicant, 
 and to recommend a suitable amount for his relief, and for a specified time, 
 and upon the approval of such recommendation by the Secretary of the Navy, 
 
 1155 
 
Sec. 4788. 
 
 Pt. 2. REVISED STATUTES. 
 
 Pensions. 
 
 and certificate thereof to the Commissioner of Pensions, the amount shall be 
 paid in the same manner as is provided in the preceding section for the pay- 
 ment to persons disabled by long service in the Navy; but no allowance so 
 made shall exceed the rate of a pension for full disability corresponding to the 
 grade of the applicant, nor, if in addition to a pension, exceed one-fourth the 
 rate of such pension. — (2 Mar., 1867, c. 174, s. 6, v. 14, p. 516.) 
 
 This section was expressly amended to read as 
 
 above by act of December 23, 1886 (24 
 
 Stat., 353), the amendment consisting of 
 
 inserting the words, "or as an appointed 
 
 petty officer, or both," after the words, 
 
 "as an enlisted man." 
 See note to section 4756, Revised Statutes. 
 
 Allo-wance to inmates of Naval Home. — 
 Allowances under section 4757, Revised Stat- 
 utes, are "pensions"" within the meaning of 
 
 section 4813 of the Revised Statutes and the 
 act of June 30, 1914 (33 Stat., 398), and should 
 therefore be disposed of, in cases where the 
 beneficiaries are inmates of the Naval Home, in 
 the manner prescribed by that act, that is, 
 paid to the governor of the Naval Home for the 
 use of the grantees. (31 Op. Atty. Gen., 268.) 
 See note to section 4756, Re\d8ed Statutes; 
 and see section 4813, Revised Statutes, and note 
 thereto. 
 
 Sec. 4787. [Artificial limbs.] Every officer, soldier, seaman, and marine, 
 who was disabled, during the war for the suppression of the rebeUion, in the 
 military or naval service, and in the line of duty, or in consequence of wounds 
 received or disease contracted therein, and who was furnished by the War 
 Department, since the seventeenth day of June, eighteen hundred and seventy, 
 with an artificial limb or apparatus for resection, or who was entitled to receive 
 such limb or apparatus since said date, shall be entitled to receive a new limb 
 or apparatus at the expiration of every five years thereafter, imder such regu- 
 lations as have been or may be prescribed by the Surgeon-General of the Army. 
 [The provisions of this section shall apply to all officers, non-commissioned 
 officers, enlisted and liired men of the land and naval forces of the United States, 
 who, in the line of their duty as such, shall have lost limbs or sustained bodily 
 injuries depriving them of the use of any of their limbs, to be determined by the 
 Surgeon-General of the Army; and the term of five years herein specified shall 
 be held to commence in each case with the filing of the application for the 
 benefits of this section.] — (27 July, 1868, c. 264, s. 14, v. 15, p. 237. 17 June, 
 1870, c. 132, s. 1, V. 16, p. 153. 30 June, 1870, c. 179, v. 16, p. 174. 23 Mar., 
 1876, c. 30, V. 19, p. 8. 27 Feb., 1877, c. 69, v. 19, p. 252.) 
 
 This section is reproduced above as it appears 
 in the second edition of the Revised 
 Statutes. The portion thereof in brackets 
 was added to the original section by act of 
 Februarv 27, 1877 (19 Stat., 252). 
 
 By act of August 15, 1876 (19 Stat., 203-204), 
 provision was made for furnishing artificial 
 limbs or appliances or commutation there- 
 for to "every officer, soldier, seaman and 
 marine, who, in the line of duty, in the 
 military or naval service of the United 
 States, shall have lost a limb, or sustained 
 bodily injuries, de]iri\dng him of the use 
 of any of his limbs." (See act cited.) 
 
 By act of March 3, 1891 (26 Stat., 1103), it was 
 provided "That section forty-seven hun- 
 dred and eighty-seven of the Revised 
 Statutes of the United States be amended 
 by striking out the word 'five' where it 
 occTirs therein, and inserting in lieu thereof 
 
 the word ' ' three ' so that when amended 
 said section ^vill read as follows: Every 
 officer, soldier, seaman, and marine who 
 was disabled during the war for the sup- 
 pression of the rebellion, in the military 
 or naval service, and in the line of duty, or 
 in consequence of wounds received or 
 disease contracted therein, and who was 
 furnished by the War Department since 
 the seventeenth day of June, eighteen 
 hundred and seventy, with an artificial 
 limb or apparatus for resection, who was 
 entitled to receive such limb or apparatus 
 since said date, shall be entitled to receive 
 a new limb or apparatus at the expiration 
 of every three years thereafter, under such 
 regulations as have been or may be pre- 
 scribed by the Surgeon-General of the 
 Army. 
 See note to section 1176, Revised Statutes. 
 
 Sec. 4788. [Commutation for artificial limbs.] Every person entitled to the 
 benefits of the preceding section may, if he so elects, receive, instead of such 
 
 1156 
 
Pensions. PL 2. REVISED STATUTES. Sec. 4791. 
 
 limb or apparatus, the money value thereof, at the following rates, namely: 
 For artificial legs, seventy-five dollars; for arms, fifty dollars; for feet, fifty 
 dollars; for apparatus for resection, fifty dollars. — (17 June, 1870, c. 132, s. 1, 
 V. 16, p. 153. 15 Aug., 1876, c. 300, v. 19, p. 203.) 
 
 See act of August 15, 1876 (19 Stat., 203-204), and note to section 1176, Revised Statutes. 
 
 Sec. 4789. [Commutation paid by Commissioner of Pensions.] The Sur- 
 geon-General shall certify to the Commissioner of Pensions a list of all soldiers 
 who elect to receive money commutation instead of limbs or apparatus, with the 
 amount due to each, and the Commissioner of Pensions shall cause the same to 
 be paid to such soldiers in the same manner as pensions are paid. — (17 June, 
 1870, c. 132, s. 2, V. 16, p. 153.) 
 
 See act of August 15, 1876 (19 Stat., 203-204), and note to section 1176, Revised Statutes; see 
 also act of March 3, 1891 (26 Stat., 979). 
 
 Sec. 4790. [Commutation to those who can not use artificial limb.] Every 
 person in the military or naval service who lost a limb during the war of the 
 rebellion, [or is entitled to the benefits of section forty-seven hundred and eighty- 
 seven,] but from the nature of liis injury is not able to use an artificial limbj shall 
 be entitled to the benefits of section forty-seven hundred and eighty-eight, and 
 shall receive money commutation as therein provided. — (Ibid., s. 3. 27 Feh., 
 1877, c. 69, V. 19, p. 2.52.) 
 
 This section was amended to read as above by act of February 27, 1877 (19 Stat., 252), which 
 inserted therein the words inclosed in brackets. 
 
 Sec. 4791. [Transportation to persons receiving artificial limbs.] The 
 Secretary of War is authorized and directed to furnish to the persons embraced 
 by the provisions of section forty-seven hundred and eighty-seven, transporta- 
 tion to and from their homes and the place where they may be required to go to 
 obtain artificial limbs provided for them under authority of law. [The trans- 
 portation allowed for having artificial limbs fitted shall be fm^nished by the 
 Quartermaster-General of the Army, the cost of which shall be refunded from 
 the appropriations for invalid pensions.] — (28 July, 1866, c. 305, v. 14, p. 342. 
 23 Mar., 1876, c. 30, v. 19, p. 8. 15 Aug., 1876, c. 300, s. 2, v. 19, p. 204. 27 
 Fel)., 1877, c. 69, v. 19, p. 252.) 
 
 This section was amended to read as above by act of February 27, 1877 (19 Stat., 252), wliich 
 added thereto the words inclosed in brackets. 
 
 1157 
 
TITLE LIX. 
 
 HOSPITALS. ASYLUMS, AND CEMETERIES. 
 
 Sec. 
 
 4807. Superintendence of Navy hospitals. 
 
 4808. Na\-y hospital fund. 
 
 4809. Appropriation of fines. 
 
 4810. Purchase and erection of Navy hospitals 
 
 and naval home. 
 
 4811. Naval Home, eovemment of. 
 
 4812. Allowance of rations to Navy hospitals. 
 
 4813. Allowance from pensions to Na\y hospi- 
 
 tals. 
 
 Sec. 
 4838 
 4839 
 
 Saint Elizabeth Hospital. 
 Superintendent; money and pensions of 
 inmates. 
 4843. Admission of insane persons of Navy, 
 
 Marine Corps, etc. 
 4878. Burial in national cemeteries. 
 
 Sec. 4807. [Superintsndence of Navy hospitals.] The Secretary of the 
 Navy shall have the general charge and superintendence of Navy hospitals. — 
 (26 Feb., 1811, c. 26, s. 1, v. 2, p. 650. 10 July, 1832, c. 194, s. 5, v. 4, p. 573.) 
 
 See note to section 4810, Revised Statutes. 
 
 Sec. 4808. [Navy hospital fund.] The Secretary of the Navy shall deduct 
 from the pay due each officer, seaman and marine, in the Navy, at the rate of 
 twenty cents per month for each person, to be applied to the fund for Navy 
 hospitals.— (2 Mar., 1799, c. 36, s. 2, v. 1, p. 729. 26 Feb., 1811, c. 26, s. 1, 
 Y. 2, p. 650.) 
 
 See sections 1614 and 1586, Revised Statutes. 
 
 For history of naval hospital fund, and infor- 
 mation relating thereto, see "Manual for 
 the Medical Department of the United 
 States Na\-v%" 1917, paragraphs 3631-3671. 
 
 Other sources of income to naval hospital fund : 
 
 See sections 4809, 4812, and 4813, Re\ised 
 
 Statutes, and note thereto. 
 Restrictions upon use of naval hospital fund for 
 
 erection of hospitals: See section 4810, 
 
 Re\ised Statutes. 
 
 Sec. 4809. [Appropriation of fines.] All fines imposed on navy officers, sea- 
 men, and marines shall be paid to the Secretary of the Navy, for the main- 
 tenance of Navy hospitals.— (26 Feb., 1811., c. 26, s. 2, v. 2, p. 650. 10 July, 
 1832, c. 194, s. 5, v. 4, p. 573.) 
 
 By act of June 7, 1900 (31 Stat., 697), it was discharged naval prisoners from fines and 
 
 pro^'ided that "all forfeitures on account forfeitures imposed by naval courts-martial, 
 
 of desertion shall be passed to the credit of thereby modifying section 4809, Revised 
 
 the naval hospital fund." Statutes, under which such fines and for- 
 
 By act of March 3, 1909 (35 Stat., 756), provi- feitures had pre\iously gone in their en- 
 
 sion was made for pajonent of expenses of tirety to the naval hospital fund. 
 
 Sec. 4810. [Purchase and erection of Navy hospitals and naval home.] The 
 Secretary' of the Navy shall procure at suitable places proper sites for Navy 
 hospitals, and if the necessary buildings are not procured vn.th the site, shall 
 cause such to be erected, having due regard to economy, and giving preference 
 to such plans as with most convenience and least cost will admit of subsequent 
 additions, when the funds permit and circumstances requho; and shall pro- 
 vide, at one of the establishments, a permanent asylum for disabled and 
 decrepit Navy officers, seamen, and marines : Provided, That hereafter no sites 
 shall be procured or hospital buildings erected or extensions to existing hospitals 
 made unless hereafter authorized by Congress: Provided, That the sum of 
 
 1159 
 
Sec. 4813. 
 
 Pt. 2. REVISED STATUTES 
 
 Hospitals. 
 
 $70,000 is appropriated, to bo paid out of any money in the Treasury not 
 othondse appropriated, for the building of a new power plant at the Naval 
 Hospital, Chelsea, Massachusetts, said sum of money to be paid into the Treasury 
 from the proceeds of sale of land authorized b}^ the naval Act of Juno twenty- 
 ninth, nineteen hundred and six. 
 
 This section was expressly amended and reen- 
 acted to read as above by act of March 4, 
 1913 (37 Stat., 902). 
 
 As to Naval Home (formerly known as Naval 
 Asylum) at Philadelphia, see sections 
 4750, 4756, 4757, 4811-4813, Re^^sed Stat- 
 utes, and notes thereto. 
 
 As to maintenance of the Naval Home from 
 the income of the naval pension fund, and 
 the crediting to that fund of proceeds of 
 certain sales and rentals of Naval Home 
 property, and the pensions and money 
 effects of deceased seamen in certain cases, 
 see notes to section 4750, Revised Statutes. 
 
 By act of June 30, 1882 (22 Stat., 121), proAi- 
 sion was made for the erection of an Army 
 and Navv hospital at Hot Spiings, Ark., 
 and by the act of March 3, 1909 (35 Stat., 
 748), it was pro\'ided that "all persons" 
 admitted to treatment in said hospital 
 shall, while patients therein, "be subject 
 to the rules and articles for the government 
 of the armies of the United States." 
 
 By act of June 12, 1906 (34 Stat., 255), it was 
 pro\'ided that "all persons" admitted to 
 treatment in the general hospital at Fort 
 Bayard, New Mexico, shall, while patients 
 therein, "be subject to the rules and arti- 
 cles for the government of the armies of 
 the United States;" and by the act of 
 
 March 2, 1907 (34 Stat.. 1172), it was pro- 
 \dded that the hospital at Fort Bayard, 
 New Mexico, for the treatment of tubercu- 
 losis, "shall be opened to the treatment of 
 the officers and men of the Navy and Ma- 
 rine Corps." (See notes to sees. 1342, 1621, 
 and 1624, R. S., as to persons subject to 
 military law.) 
 
 By act of March 3, 1919, section 2 (40 Stat., 
 1302), there were permanently transfen-ed 
 to the Treasury Department for the use of 
 the Public Health Ser\ice, "such hospitals, 
 with other necessary buildings, hereafter 
 vacated by the War Department, as may be 
 required and found suitable for the needs 
 of the Public Health Service for hospital or 
 sanatoria purposes;" and by the same act, 
 section 3 (40 Stat., 1303), it was pro^'ided 
 that "the President is authorized to direct 
 the transfer to the Ti'easuiy Department of 
 the United States of such lands or parts of 
 lands, buildings, fixtures, appliances, fur- 
 nishings, or furniture under the control of 
 any other department of the Government 
 not required for the purposes of such de- 
 partment and suitable for the uses of the 
 Public Health SerA-ice." 
 
 Saint Elizabeths Hospital, for treatment of the 
 insane: See sections 1551 and 4838, Re- 
 vised Statutes. 
 
 Sec. 4811. [Naval Home, government of.] The asylum for disabled and 
 decrepit Navy officers, seamen, and marines shall be governed in accordance 
 with the rules and regulations prescribed b}" the Secretary of the Navy. — (26 
 Feb., 1811, c. 26, s. 4, v. 2, p. 650.) 
 
 See section 4810, Revised Statutes, and note thereto 
 
 Sec. 4812. [Allowance of rations to Navy hospitals.] For every Navy 
 officer, seaman, or marine admitted into a Navy hospital, the institution shall 
 be allowed one ration per day during liis continuance therein, to be deducted 
 from the account of the United States with such officer, seaman, or marine. — 
 (Ibid., s. 5.) 
 
 As to rations allowed in Navy and Marine Coips 
 see sections 1577-1585 and 1615, Revised 
 Statutes, and notes thereto. 
 
 As to medicines and medical attendance al- 
 lowed persons in the Navy, see section 
 1586, Re\dsed Statutes. 
 
 Sec. 4813. [Allowance from pensions to Navy hospitals.] Whenever any 
 Navy officer, seaman, or marine, entitled to a pension, is admitted to a Navy 
 hospital, the pension, during his continuance in the hospital, shall be paid to 
 the Secretary of the Navy and deducted from the account of such pensioner. — ■ 
 (Ibid.) 
 
 Amendment to this section was made by act of 
 May 4, 1898 (30 Stat., 377), which provided 
 that "whenever any officer, seaman, or 
 marine entitled to a pension is admitted to 
 the Naval Home at Philadelphia, or to a 
 
 naval hospital, his pension, while he re- 
 mains there, shall be deducted from his ac- 
 counts and paid to the Secretary of the 
 Navy for the benefit of the fund from which 
 such home or hospital, respectively, is 
 
 1160 
 
Hospitals. 
 
 Pt. 2. REVISED STATUTES. 
 
 Sec. 4839. 
 
 maintained; and section forty-eight hun- 
 dred and thirteen of the Revised Statutes of 
 the United States is hereby amended ac- 
 cordingly.' ' Thisamendment was repeated 
 in identical language in the naval appropria- 
 tion act of March 3, 1899 (30 Stat., 1027). 
 
 By act of June 30, 1914 (38 Stat., 398), it was 
 provided that "the pensions of benefi- 
 ciaries of the Naval Home shall be disposed 
 of in the same manner as prescribed for in- 
 mates of the Soldiers' Home, as provided for 
 in section four of the Act approved March 
 third, eighteen hundred and eighty-three, 
 under such regulations as the Secretary of 
 the Navy may prescribe, except that in the 
 case of death of any beneficiary leaving no 
 heirs at law nor next of kin any pension due 
 him shall, subject to the foregoing provi- 
 sions, escheat to the naval pension fund." 
 
 By act of March 3, 1883, section 4 (22 Stat. , 564), 
 relating to the Soldiers' Home, and which 
 was extended to the Naval Home, Avith cer- 
 tain modifications, by the act of June 30,1914, 
 above-quoted , it was provided that "Any in- 
 mate of the Home who is receiving a pension 
 from the government, and who has a child, 
 Avife, or parent living, shall be entitled, by 
 fiUng with the pension agent from whom he 
 receives his money a Avritten dii'ection to 
 
 that effect, to have his pension, or any part 
 of it, paid to such child, wife, or parent. 
 The pensions of all who now are or shall 
 hereafter become inmates of the Home, ex- 
 cept such as shall be assigned as aforesaid, 
 shall be paid to the treasurer of the Home. 
 The money thus derived shall not become 
 a part of the funds of the Home, but shall 
 be held by the treasurer in trust for the pen- 
 sioner to whom it would otherwise have 
 been paid, and such part of it as shall not 
 sooner have been paid to him shall be paid 
 to him on his discharge from the institution. 
 The board of commissioners may from time 
 to time pay over to any inmate such part of 
 his pension-money as they think best for his 
 interest and consistent ^vith the discipline 
 and good order of the Home, but such pen- 
 sioner shall not be entitled to demand or 
 have the same so long as he remains an in- 
 mate of the Home. In case of the death of 
 any pensioner, any pension money due him 
 and remaining in the hands of the treasurer 
 shall be paid to his legal heirs, if demand is 
 made within three years; othenvise the 
 same shall escheat to the Home." 
 Disposition of pensions; inmates Naval 
 
 Home.^ — See notes to sections 4756 and 4757, 
 
 Revised Statutes. 
 
 See section 1551, Revised Statutes, and note 
 thereto; see also note to section 4756, Re- 
 vised Statutes. 
 
 Sec. 4838. [Saint Elizabeths Hospital.] There shall be in the District of 
 Columbia a Government Hospital for the Insane, and its object shall be the 
 most humane care and enlightened curative treatment of the insane of the Army 
 and Navy of the United States and of the District of Columbia. — (3 Mar., 
 1855, c. 199, s. 1, V. 10, p. 682.) 
 
 Amendment to this section, but without direct 
 reference thereto, was made by act of 
 July 1, 1916 (39 Stat., 309), which pro- 
 vided that "the Government Hospital for 
 the Insane shall be known and designated 
 as Saint Elizabeths Hospital." 
 
 Sec. 4839. [Superintendent; money and pensions of inmates.] The chief 
 executive officer of the Government Hospital for the Insane shall be a super- 
 intendent, who shall be appointed by the Secretary of the Interior, * * * 
 and shall give bond for the f aitlihil performance of his duties in such sum and 
 with such securities as may be required by the Secretary of the Interior. The 
 superintendent shall be a well-educated physician, possessing competent expe- 
 rience in the care and treatment of the insane; he shaU reside on the premises 
 and devote his whole time to the welfare of the institution; he shall, subject to 
 the approval of the board of visitors, appoint a responsible disbm^sing agent for 
 the institution, who shall give a bond satisfactory to the Secretary of the Inte- 
 rior, and the said superintendent shall engage and discharge all needful and 
 useful employees in the care of the insane and ah laborers on the farm and 
 determine their wages and duties; he shall also be an ex officio secretary of the 
 boai'd of visitors. The said disbursing agent, under the direction of the super- 
 intendent, shall have the custody of and pay out all moneys appropriated by 
 Congi'ess for the Government Hospital for the Insane, or otherwise received 
 for the purposes of the hospital, and all moneys received by the superintendent 
 in behalf of the hospital or its patients, and keep an accm^ate accomit or accounts 
 
 1161 
 
Sec. 4843. Pt. 2. REVISED STATATES. Hospitals. 
 
 thoroof . Tho said disbursing agont shall deposit in the Treasury of the United 
 StaUvs, under the direction of the superintendent, all funds now in tho hands of 
 the superintendent or which may hereafter be intrusted to him by or for the 
 use of patients, which shall bo kept in a separate account; and the said disburs- 
 ing agent is authorized to draw therefrom, under the direction of the said 
 superintendent, from time to time, under such regulations as the Secretary of 
 the Interior may prescribe, for the use of such patients, but not to exceed for 
 any one patient the amomit intrusted to the superintendent on account of such 
 patient. During the time that any pensioner shall be an inmate of the Govern- 
 ment Hospital for the Insane, all money due or becoming due upon his or her 
 pension shall be paid by the pension agent to the superintendent or disbursing 
 agent of the hospital, upon a certificate by such superintendent that the pen- 
 sioner is an inmate of the hospital and is living, and such pension money shall 
 be by said superintendent or disbureing agent disbursed and used, under regula- 
 tions to be prescribed by the Secretary of the Interior, for the benefit of the 
 pensioner, and, in case of a male pensioner, his wife, minor childi'on, and depend- 
 ent parents, or, if a female pensioner, her minor children, if any, in the order 
 named, and to pay his or her board and maintenance in the hospital, the 
 remamder of such pension money, if any, to be placed to the credit of the pen- 
 sioner and to be paid to the pensioner or the guardian of the pensioner in the 
 event of his or her discharge from the hospital; or, in the event of the death of 
 said pensioner while an inmate of said hospital, shall, if a female pensioner, be 
 paid to her minor children, and, in the case of a male pensioner, be paid to his 
 wdfe, if living; if no wife survives him, then to his minor children; and in case 
 there is no wife nor minor children, then the said unexpended balance to his 
 or her credit shall be applied to the general uses of said hospital: Provided, 
 That in the case of any pensioner transferred to the hospital from the National 
 Home for Disabled Volunteer Soldiers any pension money to his credit at said 
 Home at the time of his said transfer shall be transferred with him to said hos- 
 pital and placed to his credit therein, to be expended as hereinbefore provided, 
 and in case of his retm"n from said hospital to the Home any balance to his 
 credit at said hospital shall in like manner be transferred to said Home, to be 
 expended in accordance with the rules established in regard thereto, * * *_ 
 
 This section was expressly amended and reen- See note to section 4756, as to pensions of in- 
 acted to read as above by act of February mates of Saint Elizabeths Hospital. 
 
 2, 1909 (35 Stat., 592). See note to section 1551, Revised Statutes, as 
 
 See note to section 4838 as to change of designa- to allotments, etc., of inmates. 
 
 tion to "Saint Elizabeths Hospital. " 
 
 Sec. 4843. [Admission of insane persons of Navy, Marine Corps, etc.] The 
 superintendent, upon the order of the Secretary of War, of the Secretary of 
 the Navy, and of the Secretary of the Treasury, respectively, shall receive, and 
 keep in custody until they are ciu-ed, or removed by the same authority which 
 ordered their reception, insane persons of the following descriptions: 
 
 First. Insane persons belonging to the Ai-my, Navy, Marine Corps, and 
 revenue-cutter service. 
 
 Second. Civilians employed in the Quartermaster's and Subsistence Depart- 
 ments of the Army who may be, or may hereafter become, insane while in 
 such employment. 
 
 1162 
 
Hospitals. 
 
 Ft. 2. REVISED STATUTES. 
 
 Sec. 4878. 
 
 Third. Men who, while in the service of the United States, in the Army 
 Navy, or Marine Corps, have been admitted to the hospital, and have been 
 thereafter discharged from it on the supposition that they have recovered 
 their reason, and have, within three years after such discharge, become again 
 insane from causes existing at the time of such discharge, and have no adequate 
 means of support. 
 
 Fourth. Indigent insane persons who have been in either of the said services 
 and been discharged therefrom on account of disability arising from such 
 insanity. 
 
 Fifth. Indigent insane persons who have become insane within three years 
 after their discharge from such service, from causes which arose during and 
 were produced by said service. — (15 June, 1860, c. 66, s. 1, v. 12, p. 23. 13 
 July, 1866, c. 179, ss. 1, 2, v. 14, pp. 93, 94. 3 Mar., 1875, c. 156, s. 5, v. 18, y. 
 486.) 
 
 of October 6, 1917 (40 Stat., 373), with 
 reference to interned persons and prisoners 
 of war under the jurisdiction of the War 
 Department. 
 
 Other statutes relating to admissions to this 
 hospital do not relate to the Navy and are 
 not noted. 
 
 With reference to habeas corpus proceedings in 
 the cases of persons in the naval service 
 committed to Saint Elizabeths Hospital, 
 see note to section 761, Revised Statutes, 
 under "appeal from decision of the court 
 or justice granting writ," and "arrest of 
 petitioner after discharge." 
 
 The Revenue-Cutter Service and the Life- 
 Saving Service were consolidated and re- 
 established as the "Coast Guard" by act 
 of January 28, 1915 (38 Stat., 800). See 
 notes to sections 1492 and 2757, Revised 
 Statutes. 
 
 By act of August 29, 1916 (39 Stat., 558), it was 
 provided that ' ' hereafter interned persons 
 and prisoners of war, under the jurisdic- 
 tion of the Navy Department, who are or 
 may become insane, shall be entitled to 
 admission for treatment to the Govern- 
 ment Hospital for the Insane' ' (now desig- 
 nated as Saint Elizabeths Hospital). A 
 similar provision was contained in the act 
 
 Sec. 4878. [Burial in national cemeteries.] All soldiers, sailors, or marines 
 dying in the service of the United States, or dying in a destitute condition 
 after having been honorably discharged from the service, or who served, or 
 hereafter shall have served, during any war in which the United States has 
 been, or may hereafter be engaged, and, with the consent of the Secretary 
 of War, any citizen of the United States who served in the Army or Navy 
 of any government at war with Germany or Austria during the World War 
 and who died while in such service or after honorable discharge therefrom, 
 may be buried in any national cemetery free of cost. The production of the 
 honorable discharge of a deceased man in the former case, and a duly executed 
 permit of the Secretary of War in the latter case, shall be sufficient authority 
 for the superintendent of any cemetery to permit the interment. Army 
 nurses honorably discharged from their service as such may be biu"ied in any 
 national cemetery, and, if in a destitute condition, free of cost. The Secretary 
 of War is authorized to issue certificates to those Army nurses entitled to such 
 burial. 
 
 This section was expressly amended and re- 
 enacted to read as above by act of April 
 15, 1920 (41 Stat., 5-52). See act of March 
 
 4, 1921 (41 Stat.. 1440), as to entomb- 
 ments in Arlington Memorial Amphi- 
 theater. 
 
 54641°— 22- 
 
 -74 
 
 1163 
 
TITLE LX. 
 
 PATENTS, TRADE-MARKS, AND COPYRIGHTS. 
 
 Sec. 4894. [Applications for patents ; Government interested.] All applica- 
 tions for patents shall be completed and prepared for examination within one 
 year after the filing of the apphcation, and in default thereof, or upon failure 
 of the applicant to prosecute the same witliin one year after any action therein, 
 of which notice shall have been given to the applicant, they shall be regarded 
 as abandoned by the parties thereto, unless it be shown to the satisfaction 
 of the Commissioner of Patents that such delay was unavoidable: Provided, 
 however, That no application shall be regarded as abandoned which has become 
 the property of the Government of the United States and with respect to 
 which the head of any department of the Government shall have certified to 
 the Commissioner of Patents, mthin a period of three years, that the invention 
 disclosed therein is important to the armament or defense of the United States: 
 Provided further, That within ninety days, and not less than thirty days, 
 before the expiration of any such three-year period the Commissioner of 
 Patents shall, in wi'iting, notify the head of the department interested in any 
 pending application for patent, of the approaching expiration of the three-year 
 period within which any application for patent shall have been pending. 
 
 This section was expressly amended and reen- 
 
 acted to read as above by act of July 6, 
 
 1916 (39 Stat., 348). 
 Issuance of patents to Government officers 
 
 without payment of fee, in certain case. — 
 
 See act March 3, 1883 (22 Stat., 625). 
 Requests by heads of departments to expedite 
 
 issuance of patents. — See act March 3, 
 
 1897 (29 Stat., 694). 
 Unauthorized use of patent by United States; 
 
 suit in Court of Claims authorized in cer- 
 
 tain cases. — See act of July 1, 1918 (40 
 Stat., 705), amending and reenacting act of 
 June 25, 1910 (36 Stat., 851), on the same 
 subject. 
 
 Withholding of patents during war, if disclo- 
 sure of invention would be detrimental to 
 the public safety or defense. — See act of 
 October 6, 1917740 Stat., 394). 
 
 See note to Constitution, Article I, section 8, 
 clause 8. 
 
 1165 
 
TITLE LXVI. 
 
 EXTEADITION. 
 
 Sec. 5275. [Use of naval forces for protection of accused.] Whenever any 
 person is delivered by any foreign government to an agent of the United States, 
 for the purpose of being brought within the United States and tried for any 
 crime of which he is duly accused, the President shall have power to take all 
 necessary measures for the transportation and safe-keeping of such accused 
 person, and for his security against lawless violence, until the final conclusion 
 of his trial for the crimes or offenses specified in the warrant of extradition, 
 and until his final discharge from custody or imprisonment for or on account 
 of such crimes or offenses, and for a reasonable time thereafter, and may 
 employ such portion of the land or naval forces of the United States, or of the 
 militia thereof, as may be necessary for the safe-keeping and protection of 
 the accused.— (3 Mar.. 1869, c. 141. s. 1, v. 15. p. 337.) 
 
 1167 
 
TITLE LXIX. 
 INSURRECTION. 
 
 Sec. 
 5297. 
 5293. 
 5299. 
 
 5300. 
 5306. 
 
 5310. 
 
 Inaurrection ajjainst State. 
 Insurrection against United States. 
 Domestic violence in violation of civil 
 
 rights. 
 Proclamation to insurgents to disperse. 
 Trading without license; embezzlement; 
 
 other offenses. 
 Property taken on inland waters. 
 
 Sec. 
 5311 
 
 proceedings; property 
 
 Condemnation 
 seized. 
 
 5313. Trading in captured or abandoned prop- 
 
 erty; punishment. 
 
 5314. Collection of duties; insurrection. 
 
 5315. Removal of customhouse. 
 
 5316. Enforcement of preceding sections; use 
 
 of Navy. 
 
 Sec. 5297. [Insurrection against State.] In case of an insurrection in any 
 State against the government thereof, it shall be la-w^ul for the President, on 
 application of the legislature of such State, or of the executive, when the legis- 
 lature cannot be convened, to call forth such number of the militia of any other 
 State or States, which may be applied for, as he deems sufficient to suppress 
 such insurrection; or, on like application, to employ, for the same purposes, 
 such part of the land or naval forces of the United States as he deems neces- 
 sary.— (28 Feb., 1795, c. 36, s. 1, v. 1, p. 424. 3 Mar., 1807, c. 39, v. 2, p. 443.) 
 
 See note to Constitution, Article I, section 8, clause 11, as to war power. 
 
 Sec. 5298. [Insurrection against United States.] Whenever, by reason of 
 unlawful obstructions, combinations, or assemblages of persons, or rebellion 
 against the authority of the Government of the United States, it shall become 
 impracticable, in the judgment of the President, to enforce, by the ordinary 
 course of judicial proceedings, the laws of the United States within any State 
 or Territory, it shall be la^\^ul for the President to call forth the militia of any 
 or all the States, and to employ such parts of the land and naval forces of the 
 United States as he may deem necessary to enforce the faithful execution 
 of the laws of the United States, or to suppress such rebellion, in whatever 
 State or Territory thereof the laws of the United States may be forcibly 
 opposed, or the execution thereof forcibly obstructed. — (29 July, 1861, c. 
 25, s. 1, V. 12, p. 281.) 
 
 Sec. 5299. [Domestic violence in violation of civil rights.] Whenever 
 insurrection, domestic violence, unlawful combinations, or conspiracies in any 
 State so obstructs or hinders the execution of the laws thereof, and of the 
 United States, as to deprive any portion or class of the people of such State of 
 any of the rights, privileges, or immunities, or protection, named in the Constitu- 
 tion and secured by the laws for the protection of such rights, privileges, or 
 immunities, and the constituted authorities of such State are unable to protect, 
 or, from any cause, fail in or refuse protection of the people in such rights, 
 such facts shall be deemed a denial by such State of the equal protection of the 
 laws to which they are entitled under the Constitution of the United States; 
 and in all such cases, or whenever any such insurrection, violence, unlawful 
 combination, or conspiracy, opposes or obstructs the laws of the United States, 
 
 1169 
 
Sec. 5313. Pt. 2. REVISED STATUTES. Insurrection. 
 
 Or the due execution thereof, or impedes or obstructs the due course of justice 
 under the same, it shall be lawful for the President, and it shall be his duty, to 
 take such measures, by the employment of the militia or the land and naval 
 forces of the Ignited States, or of either, or by other means, as he may deem 
 necessary, for tlie suppression of such insurrection, domesticviolence, or combina- 
 tions.— (20 April 1S71, c. 22, s. 3, v. 17, p. 14.) 
 
 Sec. 5300. [Proclamation to insurgents to disperse.] ^VheneYer, in the 
 judgment of the President, it becomes necessar}' to use the military forces 
 under this Title, the President shall forthwith, by proclamation, command 
 the insurgents to disperse and retire peaceably to their respective abodes, 
 within a limited time.— (29 July, 1861, c. 25, s. 2, v. 12, p. 282.) 
 
 Sec. 5306. [Trading without license ; embezzlement ; other offenses.] Every 
 officer of the United States, civil, military, or naval, and every sutler, soldier, 
 marine, or other person, who takes, or causes to be taken into a State declared 
 to be in insurrection, or to any other point to be thence taken into such State, 
 or who transports or sells, or otherwise disposes of therein, any goods, wares, 
 or merchandise whatsoever, except in pursuance of license and authority of the 
 President, as provided in this Title, or who makes any false statement or repre- 
 sentation upon which license and authority is granted for such transportation, 
 sale, or other disposition, or who, under any license or authority obtained, 
 willfully and knowingly transports, sells, or otherwise disposes of any other 
 goods, wares, or merchandise than such as are in good faith so licensed and 
 authorized, or who willfully and knowingly transports, sells, or disposes of the 
 same, or any portion thereof, in violation of the terms of such license or authority, 
 or of any rule or regulation prescribed by the Secretary of the Treasury con- 
 cerning the same, or who is guilty of any act of embezzlement, of willful mis- 
 appropriation of public or private money or property, of keeping false accounts, 
 or of willfully making any false returns, shall be deemed guilty of a misde- 
 meanor, and shall be fined not more than five thousand dollars, and imprisoned 
 in the penitentiary not more than three years. Violations of this section shall 
 be cognizable before any court, civil or military, competent to try the same. — 
 (2 July, 1864, c. 225, s. 10, v. 13, p. 377.) 
 
 Sec. 5310. [Property taken on inland waters.] No property seized or 
 taken upon any of the inland waters of the United States by the naval forces 
 thereof shall be regarded as maritime prize; but all property so seized or taken 
 shall be promptly delivered to the proper officers of the courts. — (2 July, 1864, 
 c. 225, s. 7, V. 13, p. 377.) 
 
 See sections 4613-4652, Revised Statutes, and notes thereto, on subject of prize. 
 
 Sec. 5311. [Condemnation proceedings; property seized.] The Attorney- 
 General, or the attorney of the United States for any judicial district in which 
 such property may at the time be, may institute the proceedings of condemna- 
 tion, and in such case they shall be wholly for the benefit of the United States; 
 or any person may file an information with such attorney, in which case the 
 proceedings shall be for the use of such informer and the United States in 
 equal parts. — (6 Aug., 1861, c. 68, s. 3, v. 12, p. 319.) 
 
 Sec. 5313. [Trading in captured or abandoned property; punishment.] All 
 persons in the military or naval service of the United States are prohibited 
 
 1170 
 
Insurrection. Pt. 2. REVISED STATUTES. Sec. 5315. 
 
 from buying or selling, trading, or in any way dealing in captured or abandoned 
 property, whereby they shall receive or expect any profit, benefit, or advantage 
 to themselves, or any other person, directly or indirectly connected with them; 
 and it shall be the duty of such person whenever such property comes into his 
 possession or custody, or within his control, to give notice thereof to some 
 agent, appointed by virtue of this Title, and to turn the same over to such 
 agent without delay. Any officer of the United States, civil, military, or naval, 
 or any sutler, soldier, or marine, or other person who shall violate any provision 
 of this section, shall be deemed guilty of a misdemeanor, and shall be fined 
 not more than five thousand dollars, and imprisoned in the penitentiary not 
 more than three years. Violations of this section shall be cognizable before 
 any court, civil or military, competent to try the same. — (2 July, 1864, c. 225, 
 s. 10, V. 13, p. 377.) 
 
 Sec. 5314. [Collection of duties; insurrection.] Whenever the President 
 shall deem it impracticable, by reason of unlawful combmations of persons in 
 opposition to the laws of the United States, to collect the duties on imports in 
 the ordinary way, at any port of entry in any collection-district, he may cause 
 such duties to be collected at any port of delivery in the district until such ob- 
 struction ceases ; in such case the surveyor at such port of delivery shall have 
 the powers and be subject to all the obligations of a collector at a port of entry. 
 The Secretary of the Treasury, with the approval of the President, shall 
 also appoint such weighers, gaugers, measurers, inspectors, appraisers, and 
 clerks, as he may deem necessary, for the faitliful execution of the revenue 
 laws at such port of delivery, and shall establish the limits within which such 
 port of delivery is constituted a port of entry. And all the provisions of law 
 regulating the issue of marine papers, the coasting-trade, the warehousing of 
 imports, and the collection of duties, shall apply to the ports of entry thus 
 constituted, in the same manner as they do to ports of entry established by 
 law.— (13 July, 1861, c. 3, s. 1, v. 12, p. 255.) 
 
 Sec. 5315. [Removal of custom-house.] Whenever, at any port of entry, 
 the duties on imports can not, in the judgment of the President, be collected 
 in the ordinary way, or by the course provided in the preceding section, by 
 reason of the cause mentioned therein, he may direct that the custom-house 
 for the district be established in any secure place within the district, either on 
 land or on board any vessel in the district, or at sea near the coast; and in such 
 case the collector shall reside at such place, or on shipboard, as the case may 
 be, and there detain all vessels and cargoes arriving within or approaching the 
 district, until the duties imposed by law on such vessels and their cargoes are 
 paid in cash. But if the owner or consignee of the cargo on board any vessel 
 thus detained, or the master of the vessel, desires to enter a port of entry in 
 any other district where no such obstructions to the execution of the laws exist, 
 the master may be permitted so to change the destination of the vessel and 
 cargo in his manifest; whereupon the collector shall deliver him a written 
 permit to proceed to the port so designated. And the Secretary of the Treas- 
 ury, with the approval of the President, shall make proper regulations for the 
 enforcement on shipboard of such provisions of the laws regulating the assess- 
 ment and collection of duties as in his judgment may be necessary and prac- 
 ticable.— (Ibid., s. 2, p. 256. 3 Mar., 1875, c. 136, s. 2, v. 18, p. 469.) 
 
 1171 
 
Sec. 6316. Ft. 2. REVISED STATUTES. Insurrection. 
 
 Sec. 5316. [Enforcement of preceding sections; use of Navy.] It shjiU bo 
 unlawful to take any vessel or cargo detained under the preceding section 
 from the custody of the proper officers of the customs, unless by process of 
 some court of the United States; and in case of any attempt otherwise to take 
 such vessel or cargo by any force, or combination, or assemblage of persons 
 too great to be overcome by the officers of the customs, the President, or such 
 person as he shall have empowered for that purpose, may employ such part of 
 the ^Vrmy or Navy or militia of the United States, or such force of citizen 
 volunteers as may be necessary, to prevent the removal of such vessel or cargo, 
 and to protect the officers of the customs in retaining the custody thereof. — 
 (12 July, 1861, c. 3, s 3, v. 12, p. 256.) 
 
 1172 
 
TITLE LXXIV. 
 
 REPEAL PROVISIONS. 
 
 Sec. 
 5595. 
 5596. 
 5600. 
 
 What Revised Statutes embrace. 
 Repeal of acts embraced in revision. 
 Arrangement and classification of sec- 
 tions. 
 
 Sec. 
 
 5601. Acts passed since December 1, 1873, not 
 affected. 
 
 Sec. 5595. [What Revised Statutes embrace.] The foregoing seventy-three 
 titles embrace the statutes of the United States general and permanent in their 
 nature, in force on the 1st day of December one thousand eight hundred and 
 seventy- three, as revised and consoUdated by commissioners appointed under 
 an act of Congress, and the same shall be designated and cited, as The Revised 
 Statutes of the United States.— (20 June, 1874, c. 333, v. 18, ]). 113. 28 Dec, 
 1874, c. 9, V. 18, p. 293.) 
 
 See "Introduction," under "II. The Revised Statutes. " 
 
 Sec. 5596. [Repeal of acts embraced in revision.] All acts of Congress passed 
 prior to said first day of December one thousand eight hundred and seventy- 
 three, any portion of which is embraced in any section of said revision, are 
 hereby repealed, and the section applicable thereto shall be in force in lieu 
 thereof; all parts of such acts not contained in such revision, having been re- 
 pealed or superseded by subsequent acts, or not being general and permanent 
 in their nature: Provided, That the incorporation into said revision* of any 
 general and permanent provision, taken from an act making appropriations, 
 or from an act containing other provisions of a private, local, or temporary 
 character, shall not repeal, or in any way affect any appropriation, or any 
 provision of a private, local or temporary character, contained in any of said 
 acts, but the same shall remain in force; and all acts of Congress passed prior 
 to said last-named day no part of which are embraced in said revision, shall not 
 be affected or changed by its enactment. — (U. S. v. Jordan, 2 Low., 537.) 
 
 See "Introduction," under VI, E, "Construction of particular statutes," subheading, "Re- 
 vised Statutes." 
 
 Sec. 5600. [Arrangement and classification of sections.] The arrangement 
 and classification of the several sections of the revision have been made for the 
 purpose of a more convenient and orderly arrangement of the same, and there- 
 fore no inference or presumption of a legislative construction is to be drawn 
 by reason of the Title, under which any particular section is placed. 
 
 Sec. 5601. [Acts passed since Dec. 1, 1873, not affected.] The enactment of 
 the said revision is not to affect or repeal any act of Congress passed since the 
 1st day of December one thousand eight hundred and seventy-three, and all 
 acts passed since that date are to have full effect as if passed after the enact- 
 ment of this revision, and so far as such acts vary from, or conflict with any 
 provision contained in said revision, they are to have effect as subsequent 
 statutes, and as repealing any portion of the revision inconsistent therewith. — 
 (18 Feb., 1875, c. 84, v. 18, p. 329. 3 Mar., 1875, c. 130, s. 9, v. 18, p. 401.) 
 
 Approved, June 22, 1874. 
 
 1173 
 
PART 3. 
 
 THE UNITED STATES STATUTES AT LARGE. 
 
 (1175) 
 
[1850, Sept. 28. Pay of Superintendent, Naval Academy.] And the pay of 
 the superintendent of the naval school at Annapolis shall be at the rate allowed 
 to an officer of his rank, when in service at sea. — (9 Stat., 515, chap. 80.) 
 
 See note to section 1556, Revised Statutes, under "Additional pay for special duty." 
 
 [1862, July 16. Wages at navy yards, how fixed.] That section eight of an 
 act to further promote the efficiency of the navy, approved December twenty- 
 first, eighteen hundred and sixty-one, be amended so as to read as follows: 
 That the hours of labor and the rate of wages of the employees in the navy yards 
 shall conform, as nearly as is consistent with the public interest, with those of 
 private establishments in the immediate vicinity of the respective yards, to be 
 determined by the commandants of the navy yards, subject to the approval 
 and revision of the Secretary of the Navy. — (12 Stat., 587, chap. 184.) 
 
 By Navy Regulations and Naval Instiiictions, 
 1913 (Art. I. 371), it was provided that 
 "the rates of wages of employees shall 
 conform to the standard of private estab- 
 lishments in the immediate \'icinity of the 
 respective navy yards as pro\TLded by the 
 act of July 16, 18G2 * * *." 
 
 See note to act of March 3, 1909 (35 Stat., 754- 
 755), for a similar statutory provision 
 relating to compensation of employees at 
 na\'y yards and stations. 
 
 No part of this act was embraced in any section 
 
 of the Re\dsed Statutes, although portions 
 
 of the act of December 21, 1861 (12 Stat., 
 
 330), of which it was amendatory, were 
 
 carried into the revision. (See sec. 5596, 
 
 R. S., as to the repeal of prior acts by the 
 
 re\T.sion.) 
 See note to section 1545, Revised Statutes, as to 
 
 wages of na\'y^ yard employees; and as to 
 
 hours of labor, see act of August 1, 1892 (27 
 
 Stat., 340), as amended by act of March 
 
 3, 1913 (37 Stat., 726.) 
 
 [1863, Mar. 3. Commandant, Mare Island navy yard, pay.] That the pay 
 of the officer of the navy assigned to the command of the navy yard at Mare 
 Island, California, shall be the sea pay of his grade. — (12 Stat., 825, Res. No. 25.) 
 
 See note to section 1556, Revised Statutes, under "Additional pay for special duty." 
 
 [1874, June 20, sec. 3. Extra compensation to civil officers prohibited.] 
 
 That no civil officer of the Government shall hereafter receive any compensation 
 or perquisites, directly or indirectly, from the treasury or property of the United 
 States beyond his salary or compensation allowed by law: Provided, That 
 this shall not be construed to prevent the employment and payment by the 
 Department of Justice of district attorneys as now allowed by law for the 
 performance of services not covered by their salaries or fees. — (18 Stat, 109, 
 chap. 328.) 
 
 See sections 1763-1765, Revised Statutes, and notes thereto. 
 
 [1874, June 20, sec. 5. Unexpended balances of appropriations.] That from 
 and after the first day of July, eighteen hundred and seventy-four, and of each 
 year thereafter, the Secretary of the Treasury shall cause all unexpended bal- 
 ances of appropriations which shall have remained upon the books of the 
 Treasury for two fiscal years to be carried to the surplus fund and covered into 
 
 1177 
 
As to report to Congress of anio;mts found chie 
 claimants, see act of June 14, 1878, section 
 4 (20 Stat., 130), which repealed a clause 
 omitted from this provision, and act of 
 July?, 1884 (23 Stat., 254). 
 
 June 23, 1874. Pt. 3. STATUTES AT LARGE. 
 
 the Treasury: Provided, That this provision shall not apply to permanent 
 specific appropriations, appropriations for rivers and harbors, light-houses, 
 fortifications, public buildings, or the pay of the navy and marine corps; but 
 the appropriations named in this proviso shall continue available until other- 
 wise ordered by Congress. — (IS Stat., 110, chap. 32S.) 
 
 As to unexpended balances of appropriations, 
 
 see section 3(i91, Revised Statutes, and act 
 
 of July 2G, 188(), section 2 (24 Stat., 157). 
 As to permanent specific appropriations, see 
 
 section 3689, Revised Statutes, and act of 
 
 August 24, 1912, section 7 (37 Stat., 487). 
 
 [1874, June 22. Pay on promotion.] That on and after the passage of this 
 act, any officer of the Navy who may be promoted in course to fill a vacancy 
 in the next higher grade shall be entitled to the pay of the grade to which pro- 
 moted from the date he takes rank therein, if it be subsequent to the vacancy 
 he is appointed to fill. — (18 Stat., 191, chap. 392.) 
 
 See note to section 1561, Revised Statutes, and see act of March 4, 1913 (37 Stat., 892). 
 
 [1874, June 22, sec. 2. Pay of officers dismissed and restored.] That the 
 accounting officers of the Treasury be, and are hereby, proliibited from making 
 any allowance to any officer of the Navy who has been, or may hereafter be, 
 dismissed from the service and restored to the same under the provisions of the 
 twelfth section of the act of March third, eighteen hundred and sixty-five, 
 entitled "An act to amend the several acts heretofore passed to provide for the 
 enrolling and calling out the national forces, and for other purposes," to exceed 
 more than pay as on leave for six months from the date of dismissal, unless it 
 shall appear that the officer demanded in writing, addressed to the Secretary 
 of the Navy, and continued to demand as often as once in six months, a trial 
 as provided for in said act. — (18 Stat., 192, chap. 392.) 
 
 See section 1624, Revised Statutes, article 37, 
 and note thereto. 
 
 The provisions of the act of March 3, 1865, 
 section 12, referred to above, are incorpo- 
 rated into section 1624, Revised Statutes, 
 article 37. 
 
 [1874, June 23. Hazing at Naval Academy.] That in all cases when it shall 
 come to the knowledge of the superintendent of the Naval Academy, at 
 Annapolis, that any cadet-midsliipman or cadet-engineer has been guilty of 
 the offense commonly known as hazing, it shall be the duty of said superin- 
 tendent to order a court-martial, composed of not less than three commissioned 
 officers, who shall minutely examine into all the facts and circumstances of 
 the case and make a finding thereon; and any cadet-midshipman or cadet- 
 engineer found guilty of said offense by said com-t shall, upon recommendation 
 of said court be dismissed; and such finding, when approved by said superin- 
 tendent, shall be final; and the cadet so dismissed from said Naval Academy 
 shall be forever ineligible to re-appointment to said Naval Academy. — (18 
 Stat., 203-204, chap. 453.) 
 
 See notes to section 1519, Re\ised Statutes, for 
 later laws relating to hazing and the court- 
 martial of midshipmen. 
 
 See notes to section 1512, Revised Statutes, as 
 to change in title of cadet midshipmen and 
 cadet engineers. 
 
 See act of April 9, 1906, section 2 (34 Stat., 104, 
 105), for partial repeal of this enactment. 
 
 1178 
 
Pt. 3. STATUTES AT LARGE. Mar. 3, 1875. 
 
 [1875, Jan. 18. Traveling expenses, approval of Secretary.] For expenses 
 and transportation of ofRcers traveling under orders, * * * Provided, 
 That no allowance shall be made in the settlement of any account for traveling 
 expenses unless the same be incurred on the order of the Secretary of the 
 Navy, or the allowance be approved by him. — (18 Stat., 297, chap. 18.) 
 
 See note to section 1566, Revised Statutes, as to mileage and traveling expenses. 
 
 1875, Mar. 3, sec. 3. Estimates, time for furnishing ; explanations accom- 
 panying.] That it shall be the duty of the heads of the several Executive 
 Departments, and of other officers authorized or required to make estimates, 
 to furnish to the Secretary of the Treasury, on or before the first day of October 
 of each year, their annual estimates for the public service, to be included in 
 the Book of Estimates prepared by law under his direction; and the Secretary 
 of the Treasury shall submit, as a part of the appendix to the Book of Esti- 
 mates, such extracts from the annual reports of the several heads of Depart- 
 ments and Bureaus as relate to estimates for appropriations, and the necessities 
 therefor.— (18 Stat., 370, chap. 129.) 
 
 See, generally, sections 429, 430, and 3666, Re- 
 vised Statutes, and laws noted thereimder. 
 
 As to time of furnishing estimates, see act of 
 March 3, 1901, section 5 (31 Stat., 1009); 
 and see note to section 430, Revised 
 Statutes. 
 
 [1875, Mar. S. Land grant railroads.] That no money shall hereafter be 
 paid to any railroad company for the transportation of any property or troops 
 of the United States over any railroad which in whole or in part was con- 
 structed by the aid of a grant of public land on the condition that such rail- 
 road should be a public highway for the use of the Government of the United 
 States free from toll or other charge, or upon any other conditions for the use 
 of such road, for such transportation; nor shall any allowance be made for 
 the transportation of officers of the Army over any such road when on duty 
 and under orders as military officers of the United States. But nothing herein 
 contained shall be construed as preventing any such railroad from bringing a 
 suit in the Court of Claims for the charges for such transportation, and re- 
 covering for the same if found entitled thereto by virtue of the laws in force 
 prior to the passage of this act; provided that the claim for such charges shall 
 not have been barred by the statute of limitations at the time of bringing the 
 suit, and either party shall have the right of appeal to the Supreme Court of 
 the United States; And provided further, That the foregoing provision shall not 
 apply for the current fiscal year, nor thereafter, to roads where the sole con- 
 dition of transportation is that the company shall not charge the Government 
 higher rates than they do individuals for like transportation, and when the 
 Quartermaster-General shall be satisfied that this condition has been faithfully 
 complied with.— (18 Stat., 453-454, chap. 133.) 
 
 Most of the acts of Congress which granted 
 lands in aid of railroads provide that they shall 
 be "free from toll or other charge upon the 
 transportation of any property or troops of the 
 United States." A few of the acts granting 
 lands in aid of railroads provide that the grant 
 is "subject to such regulations as Congress may 
 impose restricting the charges for * * * 
 Government transportation." (E. g., act July 
 
 27, 1866, sec. 11, 14 Stat., 292, 297). (U. S. v. 
 Union Pac. R. Co., 249 U. S., 354, affirming 52 
 Ct. Cls., 226.) 
 
 By act of February 28, 1920, section 208 (41 
 Stat., 464), it was provided that "any land 
 grant railroad organized under the Act of July 
 
 28, 1866 (chapter 300) [14 Stat., 338], shall 
 receive the same compensation for transporta- 
 tion of property and troops of the United States 
 
 54641°— 22 75 1179 
 
Aug. 15, 1876. 
 
 Pt. S. STATUTES AT LARGE. 
 
 body or detachment of soldiers, viz., discharged 
 soldiers, discharged military prisoners, and re- 
 jected applicants for enlistment; apj)licants for 
 enlistment, provisionally accepted, out subject 
 to final examination and not sworn in; retired 
 enlisted men; and furlouehed soldiers en route 
 back to their stations. (United States v. Union 
 Pac. R. Co., 249 U. S., 354, affirming 52 Ct. 
 Cls., 226.) 
 
 as is paid to land grant railroads organized 
 under the Land C.rant Act of March 3, 1863 [12 
 Stat., 772], and the Act of July 27, 1866 (chapter 
 278) [14 Stat., 292]." 
 
 The term "troops of the United States" as 
 used in land-grant acts in relation to transpor- 
 tation for the Government does not embrace 
 any of the following classes of persons, when 
 traveling separately and not as part of a moving 
 
 [1876, June 30. Mileage of Navy officers.] And so much of the act of 
 Juno sixteenth, one thousand eight hundred and seventy-four, making ap- 
 propriations for the support of the Army for the fiscal year ending June thir- 
 tieth, one thousand eight hundred and seventy-five, and for other purposes, 
 as provides that only actual traveling expenses shall be allowed to any person 
 holding employment or appointment under the United States while engaged 
 on public business, as is applicable to officers of the Navy so engaged, is hereby 
 repealed; and the sum of eight cents per mile shall be allowed such officers 
 wliile so engaged, in lieu of their actual expenses. — (19 Stat., 65, chap. 159.) 
 
 See note to section 1566, Revised Statutes. 
 
 [1876, June 30. Increase of force at navy yards before elections.] And no 
 increase of the force at any navy-yard shall be made at any time within sixty 
 daj's next before any election to take place for President of the United States, or 
 member of Congress, except when the Secretary of the Navy shall certify 
 that the needs of the public service make such increase necessary at that time 
 which certificate shall be immediately published when made. — (19 Stat., 
 69-70, chap. 159.) 
 
 See note to section 1546, Revised Statutes. 
 
 [1876, Aug. 15, sec. 3. Changes in grades of clerks; honorably discharged 
 soldiers and sailors.] That w^henever, in the judgment of the head of any de- 
 partment, the duties assigned to a clerk of one class can be as well performed 
 by a clerk of a lower class or by a female clerk, it shall be lawful for him to dimin- 
 ish the number of clerks of the higher grade and increase the nimiber of the olerks 
 of the lower grade within the limit of the total appropriation for such clerical 
 service : Provided, That in making any reduction of force in any of the executive 
 departments, the head of such department shall retain those persons who may 
 be equally qualified who have been honorably discharged from the militarj'^ or 
 naval service of the United States, and the widows and orphans of deceased 
 soldiers and sailors. — (19 Stat., 169, chap. 287.) 
 
 See note to section 16G, Re^dsed Statutes, 
 under "Increasing and diminishing clerks 
 of different grades"; and see note to sec- 
 
 tion 416, Re^•ised Statutes, under "Honor- 
 ably discharged soldiers or sailors"; see 
 also section 1754, Re\ised Statutes. 
 
 [1876, Aug. 15, sec. 5. Employing clerks beyond legal allowance.] That 
 the executive officers of the Government are hereby prohibited from employ- 
 ing any clerk, agent, engineer, draughtsman messenger watchman, laborer, or 
 other employee, in any of the executive departments in the city of Washington, 
 or elsewhere beyond provision made by law, — (19 Stat., 169, chap. 287.) 
 
 See act of August 5, 1882, section 4 (22 Stat., 255); and see section 3679, Re\ised Statutes, 
 as to acceptance of voluntary services by the Government. 
 
 [1876, Aug. 15, sec. 6. Political contributions ; offenses.] That all execu- 
 tive ofiicers or employees of the United States not appointed by the President, 
 
 1180 
 
Ft. S. STATUTES AT LARGE. Mar. 3, 1877. 
 
 with the advice and consent of the Senate, are prohibited from requesting, 
 giving to, or receiving from, any other officer or employee of the Government, 
 any money or property or other thing of value for political purposes; and any 
 such officer or employee, who shall offend against the provisions of this section 
 shall be at once discharged from the service of the United States; and he shall 
 also be deemed guilty of a misdemeanor, and on conviction thereof shall be 
 fined in a sum not exceeding five hundred dollars. — (19 Stat., 169, chap. 287.) 
 See section 1546, Revised Statutes, and laws noted thereunder. 
 
 [1876, Aug. 15. Artificial limbs to soldiers and sailors.] That every officer, 
 soldier, seaman and marine, who, in the line of duty, in the military or naval 
 service of the United States, shall have lost a limb, or sustained bodily injuries, 
 depriving him of the use of any of his limbs, shall receive once every five years 
 an artificial limb or appliance, or commutation therefor, as provided and 
 limited by existing laws, under such regulations as the Surgeon-General of the 
 Army may prescribe; and the period of five years shall be held to commence 
 with the filing of the first application after the seventeenth day of June, in 
 the year eighteen hundred and seventy. 
 
 ■ Sec. 2. That necessary transportation to have artificial limbs fitted shall 
 be furnished by the Quartermaster-General of the Army, the cost of which 
 shall be refunded out of any money appropriated for the purchase of artificial 
 limbs.— (19 Stat., 203-204, chap. 300.) 
 See note to section 1176, Re\'ised Statutes. 
 
 [1877, Mar. 3, sec. 5. Mail matter, official business, free of postage.] That 
 it shall be lawful to transmit through the mail, free of postage, any letters, 
 packages, or other matters relating exclusively to the business of the Govern- 
 ment of the United States: Provided, That every such letter or package to 
 entitle it to pass free shall bear over the words "Official business" an endorse- 
 ment showing also the name of the Department, and, if from a bureau or office, 
 the names of the Department and bureau or office, as the case may be, whence 
 transmitted.— (19 Stat., 335-336, chap. 103.) 
 
 A further provision of this section, relating to 
 punishment for unlawful use of official 
 envelopes, was expressly repealed by the 
 Criminal Code, act of March 4, 1909, sec- 
 tion 341 (35 Stat., 1153), and other pro- 
 
 visions on the subject were embodied in 
 section 227 of the same act (35 Stat., 1134). 
 See notes to sections 388 and 398, Revised 
 Statutes; and see note to next section of 
 this act, set forth below. 
 
 [1877, Mar. 3, sec. 6. Endorsement on official envelopes.] That for the 
 purpose of carrying this act into effect, it shall be the duty of each of the 
 Executive Departments of the United States to provide for itself and its sub- 
 ordinate offices the necessary envelopes: and in addition to the endorsement 
 designating the Department in which they are to be used, the penalty for the 
 unlawful use of these envelopes shall be stated thereon. — (19 Stat., 336, 
 chap. 103.) 
 
 See note to preceding section, set forth above. section 3 (23 Stat., 158), which acts also 
 
 This and the preceding Bection were extended contained other provisions on the subject 
 
 to all officers of the United States, except of penalty envelopes. See also act of 
 
 Members of Congress, by act of March 3, June 26, 1906 (34 Stat., 477), and see notes 
 
 1879, section 29 (20 Stat., 362), as amended to sections 388 and 398, Revised Statutes, 
 and reenacted by act of July 5, 1884, 
 
 [1877, Mar. 3. Rent of buildings, District of Columbia.] Hereafter no 
 contract shall be made for the rent of any building,, or part of any building, 
 
 1181 
 
June 14, 1878. I'l. .?. STATUTES AT LARdE. 
 
 to bo used for tho purposes of the Government in the District of Cohimbia, 
 until an nppropriution therefor shall have been made in terms by Congress, 
 and that this clause be regarded as notice to all contractors or lessors of any 
 such building or any part of building, — (19 Stat., 370, chap. 106.) 
 
 See acta of August 5, 1882 (22 Stat., 241), and 
 March .3, 1883 (22 Stat., 552): and see sec- 
 tion 3679, Revised Statutes. 
 
 A somewhat similar provision was contained 
 in act of June 22, 1874 (18 Stat., 144). 
 
 [1878, May 4. Secretaries and clerks at sea.] That on and after the 
 first day of July, eighteen hundred and seventy-eight, there shall be no appoint- 
 ments made from civil life of secretaries or clerks to the Admiral, or Vice- 
 Admiral, when on sea service, commanders of squadrons, or of clerks to com- 
 manders of vessels; and an officer not above the grade of lieutenant shall be 
 detailed to perform the duties of secretary to the Admiral or Vice-Admiral, 
 when on sea service, and one not above the grade of master to perform the 
 duties of clerk to a rear-admiral or commander, and one not above the grade 
 of ensign to perform the duties of clerk to a captain, commander, or lieutenant- 
 commander when afloat. — (20 Stat., 50, chap. 91.) 
 
 Grade of master is now lieutenant (junior 
 grade). See note to section 1362, Revised 
 htatutes. 
 
 [1878, May 4. Sale of charts.] That all charts hereafter furnished to 
 mariners or others not in the government service shall be paid for at the cost 
 price of paper and printing paid by the government. — (20 Stat., 51, chap. 91.) 
 
 See sections 432 and 433, Re\ised Statutes, and This provision was repeated in act of Febru- 
 
 See notes to sections 1367 and 1556. Revised 
 Statutes. 
 
 notes thereto. 
 
 ary 14, 1879, chapter 68 (20 Stat., 286). 
 
 [1878, June 14, sec. 4. Claims under exhausted appropriations, report to 
 Congress.] That so much of section five of tlie act approved June twentieth, 
 eighteen hundred and seventy-four, as directs the Secretary of the Treasury 
 at the beginning of each session to report to Congress with his annual estimates 
 any balances of appropriations for specific objects affected by said section that 
 may need to be reappropriated, be, and hereby is, repealed. And it shall be 
 the duty of the several accounting-officers of the Treasury to continue to 
 receive, examine, and consider the justice and validity of all claims under 
 appropriations the balances of which have been exhausted or carried to the 
 surplus fund under the provisions of said section tliat may be brought before 
 them within a period of five years. And the Secretary of the Treasury shall 
 report the amount due each claimant, at the commencement of each session, 
 to the Speaker of the House of Representatives, who shall lay the same before 
 Congress for consideration: Provided, That nothing in this act shall be con- 
 strued to authorize the re-examination and payment of any claim or account 
 which has been once examined and rejected, unless reopened in accordance 
 with existing law. — (20 Stat., 130, chap. 191.) 
 
 See acts of June 20, 1874, section 5 (18 Stat.. 110), and July 7. 1884 (23 Stat., 254), See also 
 section 236, Revised Statutes, and note thoreto. 
 
 [1878, June 14. Purchase of material for steam boilers.] That on and 
 after the passage of this act, the Secretary of the Navy be, and he is hereby 
 authorized to purchase at the lowest market price, such plate iron and other 
 material as may enter into the construction of steam boilers for the Navy, with- 
 out advertising for bids to furnish the same: Provided, That he shall cause to 
 
 1182 
 
Pt. 3. STATUTES AT LARGE. June 19, 1878. 
 
 be sent to tbo principal dealers and manufacturers of iron and such other 
 materials as may be required specifications of the quality description and 
 character of such iron and materials so required: And provided further, That 
 such plate iron and materials shall be subjected to the same tests and inspection 
 as now provided for and which inspection and tests shall be made publicly and 
 in presence of such bidders or their authorized agents as may choose to attend 
 at the making thereof.— (20 Stat., 253-254, Res. No. 30.) 
 
 the purpose of testing the strength and 
 vahie of iron, steel, and other metals, for 
 constrtictive and mechanical purposes. 
 Tests for steam] )oat boiler plates in such manner 
 as prescri1)ed by the Board of Supervising 
 Inspectors and approved by the Secretary 
 of the Treasury, were provided for by 
 section 4430, Revised Statutes. 
 
 See sections 3718 and 3721, Re^dsed Statutes, 
 and notes thereto. 
 
 The reference to "this act" in the above resolu- 
 tion was evidently intended to be "this 
 resolution." 
 
 ByactofMarchS, 1875, section 4 (18 Stat., 399), 
 provision was made for the appointment of 
 a board, consisting of officers of the Army 
 and Na\'y, and three civilian experts, for 
 
 [1878, June 18. Examinations for promotion ; facts once determined.] That 
 hereafter in the examination of officers in the Navy for promotion no fact 
 which occurred prior to the last examination of the candidate whereby he was 
 promoted, which has been enquired into and decided upon, shall be again 
 enquired into, but such previous examination, if approved, shall be conclusive, 
 unless such fact continuing shows the unfitness of the officer to perform all 
 his duties at sea. 
 
 Sec. 2. The President of the United States may in cases wherein the rule 
 herein prescribed has been violated order and direct the re-examination of the 
 same.— (20 Stat., 165-166, chap. 267.) 
 
 See note to section 1499, Revised Statutes. 
 
 [1878, June 19. Expenditures in naval service; report of.] That from and 
 after the passage of this act, it shall be the duty of the Secretary of the Treasury 
 to transmit to Congress, annually, a tabular statement showing in detail the 
 receipts and expenditures in the Naval service under each appropriation, as 
 made up and determined by the proper officers of the Treasury Department, 
 upon the accounts of disbursing-officers rendered for settlement. 
 
 Sec. 2. There shall be appended to this statement an account of balances 
 in the hands of disbursing agents at the close of each fiscal year, and a report 
 of any amounts lost or unaccounted for by voucher. — (20 Stat., 167, chap. 311.) 
 
 See note to section 429, Revised Statutes. 
 
 [1878, June 19. "General account of advances;" use of "Pay of the Navy."] 
 That the Secretary of the Navy be, and he is hereby, authorized to issue his 
 requisitions for advances to disbursing officers and agents of the Navy under a 
 "General account of advances", not to exceed the total appropriation for the 
 Navy, the amount so advanced to be exclusively used to pay current obliga- 
 tions upon proper vouchers and that "Pay of the Navy" shall hereafter be 
 used only for its legitimate purpose, as provided by law. 
 
 Sec. 2. That the amount so advanced be charged to the proper appro- 
 priations, and returned to "General account of advances" by pay and counter 
 warrant; the said charge, however, to particular appropriations, shall be 
 limited to the amount appropriated to each. 
 
 1183 
 
Feb. 26, 1879. rt. 3. STATUTES AT LARGE. 
 
 Sec. 3. That the Fourth Auditor shall declare the sums due from the several 
 special a})propriations upon complete voucliers, as heretofore, according to 
 law; and lie shall adjust the said liabilities with the "General account of 
 advances."— (20 Stat., 167-168, chap. 312.) 
 
 See note to section 276, Revised Statutes; and see section 3678. Revised Statutes. 
 
 [1878, June 20. Rates of advertising.] That hereafter all advertisements, 
 notices, proposals for contracts, and all forms of advertising required by law 
 for the several departments of the government may be paid for at a price not 
 to exceed the commercial rates charged to private individuals, with the usual 
 discounts; such rates to be ascertained from sworn statements to be furnished 
 by the proprietors or publishers of the newspapers proposing so to advertise: 
 * * * but the heads of the several departments may secure lower terms 
 at special rates whenever the public interest requires it. — (20 Stat., 216, chap 
 359.) 
 
 See sections 3826 and 3828, Revised Statutes; 
 and see act of Januarj' 21, 1881 (21 Stat., 
 317). 
 
 The clause omitted from tliis enactment was a 
 temporaiy pro\ision relating to past trans- 
 actions. 
 
 [1879, Feb. 14. Sale of charts to persons not in government service.] That 
 all charts hereafter furnished to mariners or others not in the government 
 service shall be paid for at the cost price of paper and printing paid by the govern- 
 ment.— (20 Stat., 286, chap. 68.) 
 
 Similar provision was contained in act of May 
 
 4, 1878 (20 Stat., 51). 
 
 See sections 432 and 433, Revised Statutes, 
 and notes thereto, as to sale of charts to 
 na\dgators; see also act of January 12, 1895, 
 section 77 (28 Stat., 621). 
 
 [1879, Feb. 14. " Small-stores fund."] That from and after the first day 
 of April, eighteen hundred and seventy-nine, the value of issues of small-stores 
 shall be credited to a fund to be designated as the ''small-stores fund", in the 
 same manner as the value of the issues of clothing is now credited to the 
 "clothing fund"; the resources of the fund to be used hereafter in the purchase 
 of supplies of small-stores for issue. — (20 Stat., 288, chap. 68.) 
 
 See act June 30, 1890 (26 Stat., 197), creating See note to section 3089, Revised Statutes. 
 the "clothing and small-stores fund" in 
 the Navy. 
 
 [1879, Feb. 16, sec. 2. Acting assistant surgeons.] That from and after 
 
 the passage of this act the Secretary of the Navy shall not appoint acting 
 
 assistant surgeons for temporary service, as authorized by section fourteen 
 
 hundred and eleven. Revised Statutes, except in case of war. — (20 Stat., 295, 
 
 chap. 83.) 
 
 See section 1411, Revised Statutes, and note thereto. 
 
 [1879, Feb. 26. Details to educational institutions.] That for the purpose 
 of promoting a knowledge of steam-engineering and iron-ship building among 
 the young men of the United States, the President may, upon the application 
 of an established scientific school or college within the United States, detail an 
 officer from the Engineer Corps of the Navy as professor in such school or 
 college: Provided, That the number of officers so detailed shall not at any 
 time exceed twenty-five, and such details shall be governed by rules to be 
 
 1184 
 
PL 3. STATUTES AT LARGE. 
 
 Mar. 3, 1879. 
 
 prescribed from time to time by the President : Aiid provided further, That 
 such details may be withheld or withdrawn whenever, in the judgment of the 
 President, the interests of the public service shall so require. — (20 Stat., 322- 
 323, chap. 105.) 
 
 See note to section 1225, Revised Statutes. 
 The Engineer Corps of the Navy was abolished, 
 and the personnel thereof (on the active 
 
 list) transferred to the line of the Naw by 
 act of March 3, 1899 (30 Stat., 1004). 'See 
 note to section 1390, Revised Statutes. 
 
 See sections 1176-1178, Revised Statutes, and 
 notes thereto. 
 
 [1879, Mar. 3. Trusses for soldiers and sailors.] That section one of the 
 act entitled ''An act to provide for furnishing trusses to disabled soldiers", 
 approved May twenty-eighth, eighteen hundred and seventy two, be, and the 
 same is hereby, amended so that said section shall read as follows : 
 
 That every soldier of the Union Army, or petty-officer, seaman, or marine 
 in the naval service, who was ruptured while in the line of duty during the late 
 war for the suppression of the rebellion, or who shall be so ruptured thereafter 
 in any war, shall be entitled to receive a single or double truss of such style as 
 may be designated by the Surgeon-General of the United States Army as best 
 suited for such disability; and whenever the said truss or trusses so furnished 
 shall become useless from wear, destruction, or loss, such soldier, petty-officer, 
 seaman, or marine shall be supplied with another truss on making a like applica- 
 tion as provided for in section two of the original act of which this is an amend- 
 ment: Provided, That such application shall not be made more than once in 
 two years and six months: And 'provided further, That sections two and three of 
 the said act of May twenty-eighth, eighteen hundred and seventy-two, shall be 
 construed so as to apply to petty-officers, seamen, and marines of the naval 
 service, as well as to soldiers of the Army. — (20 Stat., 353, chap. 173.) 
 
 Section one of the act of May 28, 1872, referred 
 
 to above, was incorporated in the Re\'ised 
 
 Statutes as section 117G. 
 Sections 2 and 3 of the act of IMay 28, 1872, 
 
 referred to above, were incorporated in the 
 
 Revised Statutes as sections 1177 and 1178. 
 
 [1879, Mar. 3, sec. 29. Penalty envelopes, authority to use; endorsements 
 on; registered mail.] The provisions of the fifth and sixth section of the act 
 entitled ''An act establishing post-routes, and for other purposes" approved 
 March third, eighteen hundred and seventy-seven, for the transmission of offi- 
 cial mail-matter, be, and they are hereby, extended to all officers of the United 
 States Government, not including members of Congress, the envelopes of such 
 matter in all cases to bear appropriate indorsements containing the proper 
 designation of the office from which or officer from whom the same is trans- 
 mitted, with a statement of the penalty for their misuse. And the provisions 
 of said fifth and sixth sections are hereby likewise extended and made appli- 
 cable to all official mail-matter of the Smithsonian Institution : Provided, That 
 any Department or officer authorized to use the penalty envelopes may inclose 
 them with return address to any person or persons from or through whom 
 official information is desired, the same to be used only to cover such 
 official information, and indorsements relating thereto: Provided further, 
 That any letter or packet to be registered by either of the Executive Depart- 
 ments, or Bureaus thereof, or by the Agricultural Department, or by the 
 Public Printer, may be registered without the payment of any registry fee; 
 
 1185 
 
June 8, 1880. 
 
 Pt. S. STATUTES AT LARGE. 
 
 and any part-paid letter or packet addressed to either of said Departments or 
 ikireaus may be delivered free; but where there is good reason to believe the 
 omission to prepay the full postage thereon was intentional, such letter or 
 packet shall be returned to the sender: Provided further, That this act shall not 
 extend or apply to pension agents or other officers who receive a fixed allowance 
 as compensation for their services, including expenses of postages. And sec- 
 tion thirty-nine hundred and fifteen of the Revised Statutes of the United 
 States, so far as the same relates to stamps and stamped envelopes for official 
 purposes, is hereby repealed. — (20 Stat., 362, chap. 180; 23 Stat., 158, chap. 234.) 
 
 This section was expressly amended and re- also notes to sections 388 and 398, Revised 
 
 enacted to read as above by act of July 5, Statutes, and Criminal Code, act of March 
 
 1884, section 3 (23 Stat., 158). 4, 1909, section 227 (35 Stat.. 1134). 
 
 See act of March 3, 1877, sections 5 and 6, (19 See act of March 3, 1883, section 2 (22 Stat., 
 
 Stat., 335-33G), and notes thereto; see 563), and note thereto. 
 
 [1879, June 14. Vessels for quarantine.] That the Secretary of the Navy be, 
 and he is hereby, authorized, in his discretion, at the request of the National 
 Board of Health, to place gratuitously, at the disposal of the commissioners of 
 quarantine, or the proper authorities at any of the ports of the United States, 
 to be used by them temporarily for quarantine purposes, such vessels or hulks 
 belonging to the United States as are not required for other uses of the national 
 government, subject to such restrictions and regulations as the said Secretary 
 may deem necessary to impose for the preservation thereof. — (21 Stat., 50, 
 Res. No. 6.) 
 
 tional quarantine powers and imposing 
 additional duties upon the Marine Hospital 
 Service," now "Public Health Service." 
 
 The act of March 3, 1879 (20 Stat., 484), which 
 established the "National Board of Health," 
 was repealed by act of February 15, 1893, 
 section 9 (27 Stat., 452), "granting addi- 
 
 [1880, May 31. Vessels of Fish Commission.] And the Secretary of the 
 Navy is hereby directed to place the vessels of the United States Fish Commis- 
 sion on the same footing with the Navy Department as those of the United 
 States Coast and Geodetic Survey. — (21 Stat., 151, chap. 113.) 
 
 See sections 4397, 4684-4688, Revised Statutes. 
 
 By act of July 7, 1884 (23 Stat., 239), it was 
 enacted that the above provision "shall 
 be construed as having given to the United 
 States Commissioner of Fish and Fisheries, 
 to July first, eighteen hundred and eighty- 
 four, but no longer, the same authority m 
 regard to allowances for subsistence to 
 officers and men of the Navy serving in the 
 operations of the United States Commis- 
 
 sioner of Fish and Fisheries as is given to 
 the Secretary of the Treasury in regard to 
 service of officers and men of the Navy in 
 the Coast Survey by section forty-six hun- 
 dred and eighty-eight of the ReA^sed 
 Statutes of the United States." 
 As to the authorized number of enlisted men 
 in the Navy, including those serving in 
 the Fish Commission, see laws noted under 
 section 1417, Revised Statutes. 
 
 [1880, June 8. Judge Advocate General.] That the President of the United 
 States be, and he is hereby, authorized to appoint, for the term of four years, 
 by and with the advice and consent of the Senate, from the officers of the Navy 
 or the Marine Corps, a judge-advocate-general of the Navy, with the rank, pay, 
 and allowances of a captain in the Navy or a colonel in the Marine Corps, as 
 the case may be. And the office of the said judge-advocate-general shall be 
 in the Navy Department, where he shall, under the direction of the Secretary 
 of the Navy, receive, revise, and have recorded the proceedings of all courts- 
 martial, courts of inquiry, and boards for the examination of officers for retire- 
 ment and promotion in the naval service, and perform such other duties as 
 
 1186 
 
Pt. 3. STATUTES AT LARGE. Aug. 5, 1882. 
 
 have heretofore been performed by the sohcitor and naval judge-advocate- 
 general. — (21 Stat., 164, chap. 129.) 
 
 It was again amended by act of July 1, 1918 
 (40 Stat., 717), under wluch the Judge 
 Advocate General is to have the same rank, 
 pay and allowances as the Judge Advocate 
 General of the Army. 
 
 As to the duties of the Judge Advocate General, 
 see act of February 16, 1909, section 6 (35 
 Stat., 621), and section 1624, Revised 
 Statutes, article 53, under "Action of the 
 Judge Advocate General." 
 
 See note to sections 349, 419, and 421, Revised 
 Statutes. 
 
 This act was amended by act of June 5, 1896 
 (29 Stat., 251), by inserting therein, in 
 lieu of the words, "with the rank, pay, 
 and allowances of a captain in the Na\^, or 
 a colonel in the Marine Corps, as the case 
 may be." the words "with the rank and 
 highest pay of a captain fin] the Navy, or 
 the rank, pay, and allowances of a colonel 
 in the Marine Corps, as the case may be," 
 with a proviso that said amendment shall 
 take effect from July 19, 1892, ' ' the date on 
 which the present incumbent entered on 
 duty." 
 
 [1881, Jan. 21. Advertising in District of Columbia.] That all advertising 
 required by existing laws to be done in the District of Columbia by any of the 
 departments of the government shall be given to one daily and cne weekly 
 newspaper of each of the two principal political parties and to one daily and 
 one weekly neutral newspaper: Provided, That the rates of compensation for 
 such service shall in no case exceed the regular commercial rate of the news- 
 papers selected; nor shall any advertisement be paid for unless published in 
 accordance with section thirty-eight hundred and twenty-eight of the Revised 
 Statutes. 
 
 Sec. 2. All laws or parts of laws inconsistent herewith are hereby repealed. — 
 (21 Stat., 317, chap. 25.) 
 
 See sections 3826 and 3828, Revised Statutes, and act of June 20, 1878 (20 Stat., 216). 
 
 [1881, Jan. 31, sec. 2. Foreign decorations, etc., not to be worn.] That no 
 decoration, or other thing, the acceptance of which is authorized by this act, 
 and no decoration heretofore accepted, or which may hereafter be accepted, 
 by consent of Congress, by an}- officer of the United States, from any foreign 
 government, shall be publicly shown or exposed upon the nerson of the officer 
 so receiving the same. — (21 Stat., 604, chap. 32.) 
 
 [1881, Jan. 31, sec. 3. Foreign decorations, etc., tendered through State 
 Department.] That hereafter any present, decoration, or other thing, which 
 shall be conferred or presented by any foreign government to any officer of 
 the United States, civil, naval, or military, shall be tendered through the 
 Department of State, and not to the individual in person, but such present, 
 decoration, or other thing shall not be delivered by the Department of State 
 unless so authorized by act of Congress. — (21 Stat., 604, chap. 32.) 
 
 See Constitution, Article I, section 9, clause 8, 
 and note thereto; see also, act of July 9, 
 1918 (40 Stat., 872). 
 
 The first section of this act authorized certain 
 officers, designated by name, to accept 
 particular decorations and presents from 
 foreign governments. 
 
 [1882, Aug. 5. Rent of buildings. District of Columbia.] And where build- 
 ings are rented for public use in the District of Columbia, the executive depart- 
 ments are authorized, whenever it shall be advantageous to the public interest, 
 to rent others in their stead: Provided, That no increase in the number of 
 buildings now in use, nor in the amounts paid for rents, shall result therefrom. — 
 (22 Stat., 241, chap. 389.) 
 
 See acts of March 3, 1877 (19 Stat., 370), and March 3, 1883 (22 Stat., 552); and see section 
 3679, Revised Statutes. 
 
 1187 
 
Aug. 5, 1882. Pt. S. STATUTES AT LARGE. 
 
 [1882, Aug. 6, sec. 4. Number and pay of employees limited; use of con- 
 tingent appropriations ; details from outside of District of Columbia.] That 
 no civil officer, clerk, draughtsman, copyist, messenger, assistant messenger, 
 mechanic, watchman, laborer, or other employee shall after the first day of 
 October next be employed in any of the executive departments, or subordinate 
 bureaus or offices thereof at the seat of government, except only at such rates 
 and in such numbers, respectively, as may be specifically appropriated for by 
 Congress for such clerical and other personal services for each fiscal year; and 
 no civil officer, clerk, draughtsman, copyist, messenger, assistant messenger, 
 mechanic, watchman, laborer, or other employee shall hereafter be employed 
 at the seat of government in any executive department or subordinate bureau 
 or office thereof or be paid from any appropriation made for contingent ex- 
 penses, or for any specific or general purpose, unless such employment is au- 
 thorized and payment therefor specifically provided in the law granting the 
 appropriation, and then only for services actually rendered in connection with 
 and for the purposes of the appropriation from which payment is made, and 
 at the rate of compensation usual and proper for such services, and after the 
 first day of October next section one hundred and seventy-two of the Revised 
 Statutes, and all other laws and parts of laws inconsistent with the provisions 
 of tliis act, and all laws and parts of laws authorizing the employment of offi- 
 cers, clerks, draughtsmen, copyists, messengers, assistant messengers, mechanics, 
 watchmen, laborers, or other employees at a different rate of pay or in excess 
 of the numbers authorized by appropriations made by Congress, be and they 
 are hereby, repealed; and thereafter all details of civil officers, clerks, or other 
 subordinate employees from places outside of the District of Columbia for 
 duty within the District of Columbia, except temporary details for duty con- 
 nected with their respective offices, be, and are hereby, prohibited; and there- 
 after all moneys accruing from lapsed salaries, or from unused appropriations 
 for salaries, shall be covered into the Treasury: * * * ^^^ nothmg herein 
 shall be construed to repeal or modify section one hundred and sixty-six of 
 the Revised Statutes of the United States.— (22 Stat., 255-256, chap. 389.) 
 
 The portion omitted from this section con- 
 sisted of temporary provisos. 
 
 See sections 166, 169, 172, 416, and 3682, 
 Revised Statutes; see also acts of August 
 15, 1876, section 5 (19 Stat., 169), and May 
 30, 1908 (35 Stat., 505). 
 
 Punishment for violation of this section was 
 prescribed by act of August 23, 1912, sec- 
 tion 5 (37 Stat.,_414). 
 
 Restrictions on details to departments from out- 
 side of the District are contained in act of 
 June 22, 1906, section 6 (34 Stat., 449). 
 
 [1882, Aug. 5. Naval cadets; appointed on graduation; discharge of sur- 
 plus graduates; special course of training.] That hereafter there shall be no 
 appointments of cadct-midsliipmen or cadet-engineers at the Naval Academy, 
 but in lieu thereof naval cadets shall be appointed from each Congressional 
 district and at large, as now provided by law for cadet-midshipmen, and all 
 the undergraduates at the Naval Academy shall hereafter be designated and 
 called ''naval cadets;" and from those who successfully complete the six 
 years' course appointments shall hereafter be made as it is necessary to fill 
 vacancies in the lower grades of the line and Engineer Corps of the Navy and 
 of the Marine Corps: * * * ^nd if there be a surplus of graduates, those 
 who do not receive such appointment shall be given a certificate of graduation, 
 an honorable discharge, and one year's sea-pay, as now provided by law for 
 
 « 
 
 1188 
 
Pt. S. STATUTES AT LARGE. Aug. 5, 1882. 
 
 cadet-midshipmen; and so much of section fifteen hundred and twenty-one 
 of the Revised Statutes as is inconsistent herewith is hereby repealed. 
 
 That any cadet whose position in his class entitles him to be retained in 
 the service may, upon his own application, be honorably discharged at the 
 end of four years' course at the Naval Academy, with a proper certificate of 
 graduation. 
 
 That the Secretary of the Navy may prescribe a special course of study 
 and training at home or abroad for any naval cadet. — (22 Stat., 285, chap. 391.) 
 
 As to academic course, see section 1520, Re- 
 vised Statutes, and note thereto. 
 
 As to discharge of surplus graduates, see note to 
 section 1521, Revised Statutes. 
 
 See generally sections 1512-1528, Revised 
 
 Statutes, and notes thereto. 
 As to change in designation of naval cadets, see 
 
 note to section 1512, Revised Statutes. 
 As to appointments on graduation, see note to 
 
 section 1521, Revised Statutes. 
 
 [1882, Aug. 5. No promotion on retired list.] Hereafter there shall be no 
 promotion or increase of pay in the retired list of the Navy but the rank and 
 pay of officers on the retired list shall be the same that they are when such 
 officers shall be retired.— (22 Stat., 286, chap. 391.) 
 
 See notes to sections 1461, 1481, 1588, and 1591, Revised Statutes. 
 
 [1882, Aug. 5. Officers morally unfit for promotion.] That whenever on an 
 inquiry had pursuant to law, concerning the fitness of an officer of the Navy for 
 promotion, it shall appear that such officer is unfit to perform at sea the duties 
 of the place to which it is proposed to promote him, by reason of drunkenness, 
 or from any cause arising from his own misconduct, and having been informed 
 of and heard upon the charges against him, he shall not be placed on the retired- 
 list of the Navy, and if the finding of the board be approved by the President, 
 he shall be discharged with not more than one year's pay. — (22 Stat., 286, 
 chap. 391.) 
 
 See note to section 1456, Revised Statutes. 
 
 [1882, Aug. 5. Expenses of officers traveling abroad.] And officers of the 
 Navy traveling abroad under orders hereafter issued shall travel by the most 
 du"ect route, the occasion and necessity for such order to be certified by the 
 officer issuing the same; and shall receive, in lieu of the mileage now allowed 
 by law, only their actual and reasonal)le expenses, certified under their own 
 signatures and approved by the Secretary of the Navy. — (22 Stat., 286-287, 
 chap. 391.) 
 
 See note to section 1566, Revised Statutes. 
 
 [1882, Aug. 5. Navy yard at Washington; use as a manufacturing yard.] 
 That the navy-yard at Wasliington, District of Columbia, may, at the discre- 
 tion of the Secretary of the Navy, be maintained as a manufacturing yard for 
 the Bureaus of Equipment and Recruiting and Ordnance, and that work may 
 be continued in the rope-walk in the Boston navy-yard: And 'provided further, 
 That nothing herein shall be held to interfere with the permanent improvement 
 of any navy-yard as now authorized by law, or the expenditure for such pur- 
 pose of any money appropriated by Congress therefor. — (22 Stat., 289, chap. 
 391.) 
 
 See note to section 419, Revised Statutes, as to 
 changes in designation and duties of bu- 
 reaus in the Navy Department. 
 
 ments as to suspension of work at navy- 
 yards during the then current fiscal year, 
 and the closing of yards if necessary to 
 
 The above were provisos following require- prevent deficiencies during said year. 
 
 1189 
 
Mar. 3, 1883. Pi. 3. STATUTES AT LARGE. 
 
 [1882, Aug. 5, sec. 2. Old material to be used; if not useful, to be sold; 
 annual report to Congress.] And no old material of the Navy shall hereafter 
 be sold or exchanged by the Secretary of the Navy, or by any officer of the 
 Navy, which can be profitably used by reworking or otherwise in the construc- 
 tion or repair of vessels, their machinery, armor, armament, or equipment; 
 but the same shall be stored and preserved for future use. And when any 
 such old material can not be profitably used as aforesaid, the same shall be 
 appraised and sold at public auction after public notice and advertisement shall 
 have been given according to law under such rules and regulations and in such 
 manner as the said Secretary may direct. The net proceeds arising from the 
 sales of such old materials shall be paid into the Treasury. It shall be the duty 
 of the Secretary of the Navy annually to report in detail to Congress, in his 
 annual report, the proceeds of all sales of materials, stores, and supplies, made 
 under the provisions of this act, and the expenses attending such sales. — (22 
 Stat., 296, chap. 391.) 
 
 See sections 1541, 3618, and 3692, Revised Statutes; see also, acts of June 30, 1890 (26 Stat., 
 194), and March 2, 1905 (33 Stat., 841). 
 
 [1882, Aug. 5, sec. 2. Examination of vessels; names stricken from Regis- 
 ter ; report to Congress.] It shall also be the duty of the Secretary of the Navy, 
 as soon as may be after the passage of this act, to cause to be examined by 
 competent boards of officers of the Navy, to be designated by him for that duty, 
 all vessels belonging to the Navy not in actual service at sea, and vessels at 
 sea as soon as practicable after they shall return to the United States, and 
 hereafter all vessels on their return from foreign stations, and all vessels in the 
 United States as often as once in three years, when practicable; and said boards 
 shall ascertain and report to the Secretary of the Navy, in writing, which of 
 said vessels are unfit for further service, or, if the same are unfinished in any 
 navy-yard, those which can not be finished without great and disproportionate 
 expense, and shall in such report state fully the grounds and reasons for their 
 opinion. And it shall be the duty of the Secretary of the Navy, if he shall 
 concur in opinion with said report, to strike the name of such vessel or vessels 
 from the Navy Register and report the same to Congress. — (22 Stat., 296-297, 
 chap. 391.) 
 
 See act of March 3, 1883, section 5 (22 Stat., 
 599-600), as to sale of vessels stricken from 
 the Navy Register. 
 
 [1883, Mar. 3. Masters to be junior grade of lieutenants.] For the pay of 
 * * * one hundred masters, the title of which grade is hereby changed to 
 that of lieutenants, and the masters now on the list shall constitute a junior 
 grade of, and be commissioned as, lieutenants, having the same rank and pay 
 as now provided by law for masters, but promotion to and from said grade shall 
 be by examination as provided by law for promotion to and from the grade of 
 master.— (22 Stat., 472, chap. 97.) 
 
 See note to section 1362, Revised Statutes. 
 
 [1883, Mar. 3. Midshipmen to be junior grade of ensigns.] Ninety-one 
 midshipmen, the title of which grade is hereby changed to that of ensign, and 
 the midshipman now on the list shall constitute a junior grade of, and be 
 
 1190 
 
 See also section 1541, Revised Statutes, and 
 note thereto. 
 
Pt. 3. STATUTES AT LARGE. 
 
 Mar. 3, 18«3. 
 
 commissioned as, ensigns, having the same rank and pay as now provided by 
 law for midshipmen, but promotions to and from said grade shall be under the 
 same regulations and requirements as now provided by law for promotion to 
 and from the grade of midshipmen. — (22 Stat., 472, chap. 97.) 
 
 See note to section 1362, Revised Statutes, and see act of June 26, 1884 (23 Stat., 60). 
 
 [1883, Mar. 3. Credit for all service in Army and Navy.] And all ofFicer.s 
 of the Navy shall be credited with the actual time they may have served as 
 officers or enlisted men in the regular or volunteer Army or Navy, or both, 
 and shall receive all the benefits of such actual service in all respects in the 
 same manner as if all said service had been continuous and in the regular Navy 
 in the lowest grade having graduated pay held by such officer since last entering 
 the service: Provided, That nothing in this clause shall be so construed as to 
 authorize any change in the dates of commission or in the relative rank of such 
 officers: Provided further, That nothing herein contained shall be so construed 
 as to give any additional pay to any such officer during the time of his service 
 in the volunteer army or navy. — (22 Stat., 473, chap. 97.) 
 
 See notes to sections 1443, 1556, and 1600, A somewhat similar provision was contained 
 Revised Statutes; and see act of June 10, in act of August 5, 1882 (22 Stat., 287). 
 
 1896 (29 Stat., 361). 
 
 [1883, Mar. 3. Life saving dress, use in the Navy.] The Secretary of the 
 Navy is authorized and empowered, within his discretion, to constitute and 
 introduce, as a portion of the equipment of the Navy, the life saving dress 
 adopted and approved by the Life Saving Service of the United States. — (22 
 Stat., 475, chap. 97.) 
 
 [1883, Mar. 3, sec. 2. Employment on shore duty.] That hereafter no 
 officer of the Navy shall be employed on any shore duty, except in cases specially 
 provided by law, unless the Secretary of the Navy shall determine that the 
 employment of an officer on such duty is required by the public interests, and 
 he shall so state in the order of employment, and also the duration of such 
 service, beyond which time it shall not continue. — (22 Stat., 481, chap. 97.) 
 
 A similar provision was contained in act of 
 August 5, 1882, section 3 (22 Stat., 297). 
 
 This provision is expressly modified by act of 
 
 July 19, 1892 (27 Stat., 245)_. 
 See note to section 1571, Revised Statutes, as 
 
 to sea service. 
 
 [1883, Mar. 3. Rented buildings, report to Congress.] It shall be the duty 
 of the heads of the several executive departments to submit to Congress each 
 year, in the annual estimates of appropriations, a statement of the number of 
 buildings rented by their respective departments, the purposes for which rented, 
 and the annual rental of each. — (22 Stat., 552, chap. 128.) 
 
 See also sections 429 and 430, Revised 
 Statutes, and note thereto. 
 
 See acts of March 3, 1877 (19 Stat., 370), and 
 July 16, 1892 (27 Stat., 199), as amended 
 by act of May 1, 1913, section 3 (38 Stat. , 3). 
 
 [1883, Mar. 3, Sec. 2. Penalty envelopes to be inclosed with letters to 
 Members of Congress, etc.] And it shall be the duty of the respective depart- 
 ments to inclose to Senators, Representatives and Delegates in Congress, in all 
 official communications requiring answers, or to be forwarded to others, penalty 
 envelopes, addressed as far as practicable, for forwarding or answering such 
 official correspondence. — (22 Stat., 563, chap. 128.) 
 
 1191 
 
Mar. 3, 1883. Pt. S. STATUTES AT LARGE. 
 
 A portion of this section, omitted above, pro- 
 
 vided for requisitions to be made upon the 
 Postmaster vieneral by heads of depart- 
 ments for the necessary amount of official 
 postage stamps for the use of their depart- 
 ments. 
 
 See act of March .3, 1879, section 29 (20 Stat.. 
 3G2), and note thereto, as to use of penalty 
 envelopes by all officero of the Govern- 
 ment, "not including Members of Con- 
 gress." By act of April 28, 1904, section 
 7 (33 Stat., 441), Members of CongTess 
 were given the })rivilege of transmitting 
 correspondence free of postage. 
 
 [1883, Mar. 3, sec. 5. Sale of vessels.] It shall be the duty of the Secretary 
 of the Navy to cause to be appraised, in such manner as may seem best, all 
 vessels of the Navy which have been stricken from the Navy Register under 
 the provisions of the act making appropriations for the naval service for the 
 fiscal year ending June thirtieth, eighteen hundred and eighty-three, and for 
 other purposes, approved August fifth, eighteen hundred and eighty-two. 
 And if the said Secretary shall deem it for the best interest of the United States 
 to soil any such vessel or vessels, he shall, after such appraisal, advertise for 
 sealed proposals for the purchase of the same, for a period not less than three 
 months, in such newspapers as other naval advertisements are published, setting 
 forth the name and location and the appraised value of such vessel, and that 
 the same will be sold, for cash, to the person or persons or corporation or cor- 
 porations offering the highest price therefor above the appraised value thereof; 
 and such proposals shall be opened on a day and hour and at a place named in 
 said advertisement, and record thereof shall be made. The Secretary of the 
 Navy shall require to accompany each bid or proposal a deposit in cash of not 
 less than ten per centum of the amount of the offer or proposal, and also a 
 bond, with two or more sureties to be approved by him, conditioned for the 
 payment of the remaining ninety per centum of the amount of such offer or 
 proposal within the time fixed in the advertisement. And in case default is 
 made in the payment of the remaining ninety per centum, or any part thereof, 
 the Secretary, within the prescribed time thereof, shall advertise and resell 
 said vessel under the provisions of this act. And in that event said cash 
 deposit of ten per centum shall be considered as forfeited to the government, 
 and shall be applied, first, to the payment of all costs and expenditures attend- 
 ing the advertisement and resale of said vessel; second, to the payment of the 
 difference, if any, between the first and last sale of said vessel; and the 
 balance, if any, shall be covered into the Treasury: Provided, however, That 
 nothing herein contained shall be construed to prevent a suit upon said bond 
 for breach of any of its conditions. Any vessel sold under the foregoing pro- 
 visions shall be delivered to the purchaser upon the full payment to the Secre- 
 tary of the Navy of the amount of such proposal or offer; and the net proceeds 
 of such sale shall be covered into the Treasury. But no vessel of the Navy 
 shall hereafter be sold in any other manner than herein provided, or for less 
 than such appraised value, unless the President of the United States shall 
 otherwise direct in writing. — (22 Stat., 599-600, chap. 141.) 
 
 See act of August 5, 1882, section 2 (22 Stat., 296-297); see also, section 1541, Revised Stat- 
 utes, and note thereto. 
 
 [1883, Mar. 3. Patents to officers of United States.] The Secretary of the 
 Interior and the Commissioner of Patents are authorized to grant any officer of 
 the government, except officers and employees of the Patent Office, a patent 
 for any invention of the classes mentioned in section forty eight hundred and 
 
 1192 
 
PL 3. STATUTES AT LARGE. July 7, 1884. 
 
 eighty six of the Revised Statutes, when such invention is used or to be used 
 in the public service, without the payment of any fee: Provided, That the 
 apphcant in his application shall state that the invention described therein, if 
 patented, may be used by the government or any of its officers or employees in 
 the prosecution of work for the government, or by any other person in the 
 United States, without the payment to him of any royalty thereon, which 
 stipulation shall be included in the patent. — (22 Stat., 625, chap. 143.) 
 See section 4894, Revised Statutes, and note thereto. 
 
 [1884, June 26. Ensigns commissioned from graduates of Naval Academy; 
 grade of junior ensign abolished.] That from and after the passage of this act 
 all graduates of the Naval Academy who are assigned to the line of the Navy, 
 on the successful completion of the six years course, shall be commissioned 
 ensigns in the Navy. 
 
 Sec. 2. That the grade of junior ensign in the Navy is hereby abolished 
 and the junior ensigns now on the list shall be commissioned ensigns in the 
 Navy: Provided, That nothing in this act shall be so construed as to increase 
 the number of officers in the Navy now allowed by law. 
 
 Sec. 3. That all acts and parts of acts inconsistent with the provisions of 
 this act be and the same are hereby repealed. — (23 Stat., 60, chap. 122.) 
 
 See note to section 1521, Revised Statutes, as 
 to appointments to graduates of Naval 
 Academy. 
 
 See act of Mar. 3, 1883 (22 Stat.. 472), and 
 note to section 1362, Revised Statutes, 
 as to grade of junior ensign. 
 
 [1884, July 6, Sec. 3. Sale of smooth-bore cannon for experimental purposes.] 
 That the Secretary of War and the Secretary of the Navy are hereby authorized 
 to sell to projectors of methods of conversion, for experimental purposes only, 
 any smooth-bore cannon on hand required by them, at prices which shall not 
 be less than have been received from auction sales for such articles, and deliver 
 the same, at the cost of the Government, at the nearest convenient place 
 for shipment or pubhc transportation; the cost of delivery to be deducted 
 from the proceeds of sales, and the balance to be covered into the Treasury of 
 the United States.— (23 Stat., 159, chap. 235.) 
 
 See notes to sections 161, 418, and 1541, Revised Statutes. 
 
 [1884, July 7. Report to Congress of claims allowed.] That the Secretary 
 of the Treasury shall, at the commencement of each session of Congress, report 
 the amount due each claimant whose claim has been allowed in whole or in 
 part to the Speaker of the House of Representatives and the presiding officer 
 of the Senate, who shall lay the same before their respective Houses for con- 
 sideration. — (23 Stat., 254, chap. 334.) 
 
 See acts of June 20, 1874, section 5 ( 18 Stat., 110), and June 14, 1878, section 4 (20 Stat., 
 130). 
 
 [1884, July 7. Estimates, how submitted to Congress.] And hereafter 
 all estimates of appropriations and estimates of deficiencies in appropriations 
 intended for the consideration and seeking the action of any of the committees 
 of Congress shall be transmitted to Congress through the Secretary of the 
 Treasury, and in no other manner; and the said Secretary shall first cause the 
 same to be properly classified, compiled, indexed, and printed, under the 
 
 1193 
 
May 20, 1886. I't. .i. STATUTES AT LARGE. 
 
 supervision of the chief of the division of warrants, estimates, and appro- 
 priations of liis Department. — (23 Stat., 254, chap. 334.) 
 
 See Poctioiis IliO aiul 36(59, Revised Statutps, and notos thereto. 
 
 [1885, Jan. 6. Holidays, per diem employees.] That the employees of the 
 Navy Yard, Ciovernment Printing Olhce, Jiureau of Printing and Engraving, 
 and all other per diem employees of the Government on duty at Waslnngton, 
 or elsewhere in the United States, shall be allowed the following holidays, 
 to wit : The first day of January, the twenty-second day of February, the 
 fourth day of July, the twenty-fifth day of December, and such days as may be 
 designated by the President as days for national thanksgiving, and shall receive 
 the same pay as on other days. — (23 Stat., 516, Res. No. 5.) 
 
 See note" to section 1545, Revised Statutes. 
 
 [1885, Jan. 30. Rations, enlisted men and naval cadets.] That all enlisted 
 men and boys in the Navy, attached to any United States vessel or station 
 and doing duty thereon, and naval cadets, shall be allowed a ration, or com- 
 mutation thereof in money, under such limitations and regulations as the 
 Secretary of the Navy may prescribe. — (23 Stat., 291, chap. 43.) 
 
 See sections 1577-1579, Revised Statutes, 
 and notes thereto, relating to rations. 
 
 See section 1512, Revised Statutes, and note 
 thereto, as to change in designation of 
 "naval cadets." 
 
 [1885, Jan. 30. Commutation for forage.] Marine Corps. * * * That 
 no commutation for forage shall be paid. — (23 Stat., 294, chap. 43.) 
 
 See section 1612, Revised Statutes, and note thereto. 
 
 [1885, Jan. 30, Sec. 3. Civilians employed on clerical duty under naval 
 appropriations; annual report and estimates.] That the Secretary of the 
 Navy is hereby directed to report to Congress, at its next and each regular 
 session thereafter, the amount expended during the prior fiscal year, from 
 the appropriations for the pay of the Navy, Bureaus of Navigation, Ordinance, 
 Equipment and Recruiting, Yards and Docks, Medicine and Surgery, Pro- 
 visions and Clothing, Construction and Repair, and Steam-Engineering, for 
 civilians employed on clerical duty, or in any other capacity than as ordinary 
 mechanics and workingmen, and to submit, under the estimates for pay of 
 the Navy and for the respective Bureaus enumerated above, specific estimates 
 for such civilian employees for the fiscal year eighteen hundred and eighty- 
 seven, and each fiscal year thereafter. — (23 Stat., 295, chap. 43.) 
 
 See note to section 419, Revised Statutes, 
 as to changes in designation of bureaus 
 in the Navy Department. 
 
 [1886, May 20. Naval Academy, instructions as to nature and effects of 
 alcoholic drinks, etc.] That the nature of alcoholic drinks and narcotics, and 
 special instructions as to their effects upon the human system, in connection 
 with the several divisions of the subject of physiology and hygiene, shall be 
 included in the branches of study taught in the common or public schools, and 
 in the Military and Naval Schools, and shall be studied and taught as thor- 
 oughly and in the same manner as other like required branches are in said 
 schools, by the use of text-books in the hands of pupils where other branches 
 are thus studied in said schools, and by all pupils in all said schools throughout 
 
 1194 
 
 See notes to sections 416, 429, and 430, Revised 
 Statutes. 
 
Pt. S. STATUTES AT LARGE. 
 
 Aug. 3, 1886. 
 
 the Territories, in the Military and Naval Academies of the United States, and 
 in the District of Columbia, and in all Indian and colored schools in the Terri- 
 tories of the United States. 
 
 Sec. 2. That it shall be the duty of the proper officers in control of any 
 school described in the foregoing section to enforce the provisions of this act; 
 and any such officer, school director, committee, superintendent, or teacher 
 who shall refuse or neglect to comply with the requirements of this act, or shall 
 neglect or fail to make proper provisions for the instruction required and in the 
 manner specified by the first section of this act, for all pupils in each and every 
 school under his jurisdiction, shall be removed from office, and the vacancy 
 filled as in other cases. — (24 Stat., 69, chap. 362.) 
 
 See sections 1511-1528, Revised Statutes, as to Naval Academy. 
 
 [1886, July 26. Tests of cannon for the Navy.] One or more rifled cannon 
 of each type constructed at the cost of the United States for the Navy shall be 
 publicly subjected to the proper test for endurance including such rapid firing 
 as a like gun would be subjected to in battle. This test shall be under the 
 direction and to the satisfaction of the Secretary of the Navj", and if such guns 
 do not prove satisfactory, the type they represent shall not be put in use in 
 the naval service. — (24 Stat., 151, chap. 781.) 
 
 A similar provision with relation to the Army, 
 contained in an act approved July 5, 1884 
 
 (23 Stat., 159). was repealed by act of March 
 3, 1921, section 7 (41 Stat., 1352). 
 
 [1886, July 26, sec. 2. Unexpended balances of appropriations.] All balan- 
 ces of moneys appropriated for the pay of the Navy or pay of the Marine Corps, 
 for any year existing after the accounts for said year shall have been settled 
 shall be covered into the Treasury. — (24 Stat., 157, chap. 781.) 
 
 See sections 250, 3689-3691, Revised Statutes. 
 and notes thereto; see also acts of June 20. 
 
 1874, section 5 (18 Stat., 110), and August 
 24, 1912, section 7 (.37 Stat., 487). 
 
 [1886, Aug. 3, sec. 2. Naval construction; steel of domestic manufacture to 
 be used ; etc.] That in the construction of all naval vessels the steel material 
 shall be of domestic manufacture, and of the quality and characteristics best 
 adapted to the various purposes for which it may be used, in accordance with 
 specffications approved by the Secretary of the Navy. — (24 Stat., 215, chap. 
 849; 30 Stat., 390, chap. 234.) 
 
 See section 3728, Revised Statutes. 
 
 This section was expressly amended and re- 
 enacted to read as above by act of May 4, 1898 
 (30 Stat., 390). As originally enacted, this 
 section and the other sections of said act of 
 August 3, 1886 (24 Stat., 215-217), read as 
 follows: 
 
 '•'That the President is hereby authorized to 
 have constructed, as hereinafter provided — 
 
 "First. Two sea-going double-bottomed ar- 
 mored vessels of about six thousand tons dis- 
 placement, designed for a speed of at least six- 
 teen knots an hour, with engines ha-ving all 
 necessary appliances for working under forced 
 draught, and costing, including engines and 
 machinery and excluding armament, not more 
 than two million five hundred thousand dollars 
 each. Said vessels shall have each a com- 
 plete torpedo outfit and be armed in the most 
 effective manner. 
 
 "Second. One protected double-bottomed 
 cruiser of not less than three thousand five hun- 
 
 dred nor more than five thousand tons displace- 
 ment, designed to have the liighest practicable 
 speed and furnished with the best type of mod- 
 em engines, furnished with necessary appli- 
 ances for working under forced draught. Said 
 vessel shall cost, including engines and ma- 
 chinery and excluding armament, not exceed- 
 ing one million five hundred thousand dollars. 
 
 "Tliird. One first class torpedo-boat, costing 
 in the aggregate not more than one hundred 
 thousand dollars. 
 
 "Sec 2. That the vessels hereinbefore au- 
 thorized to be constructed shall be built of steel 
 of domestic manufacture, having a tensile 
 strength of not less than sixty thousand pounds 
 per square inch, and an elongation in eight 
 inches of not less than twenty-five per centum. 
 
 "Sec. 3. That the President is hereby author- 
 ized to direct the completion, as hereinafter pro- 
 vided, of the double-turreted monitors Puritan, 
 Amphitrite, Monadncck, and Terror, at a total 
 cost, exclusive of armament, not to exceed 
 
 54641°— 22- 
 
 re 
 
 1195 
 
Aug. 3, 1886. 
 
 I't. 3. STATUTES AT LARGE. 
 
 throe million one hundred and seventy-eight 
 thousand and forty-six dollars. 
 
 "Sec. 4. That the armor used in constructing 
 said armored vessels and for completing said 
 monitors shall he of the host ol)tainable quality 
 and of domestic manufacture, provided con- 
 tracts for furnishing the same in a reasonable 
 time, at a rea^souahle price, and of the required 
 quality can he made w-ith responsible parties. 
 Such armor shall be accepted only after passing 
 such tests as shall l)e prescribed by the Secre- 
 tary of the Navy and iiLserted in the contracts. 
 
 '' Sec. 5. That the Secretary of the Navy shall 
 cause one or more of the new vessels herein- 
 before provided for to be constructed and one 
 or more of the said monitors to be completed 
 in one or more of the navy-yards of the United 
 States; and if he shall be unable to contract 
 vrith responsible parties to construct or com- 
 plete, at reasonable prices, all or any of the 
 vessels hereinbefore provided for, he shall cause 
 the same to be constructed or completed in such 
 of the navy-yards of the United States as may 
 be best adapted thereto. 
 
 "Sec. 6. That the engines, boilers, and ma- 
 chinery of all the new vessels provided for by 
 this act shall be of domestic manufacture and 
 procured by contract, unless the Secretary of 
 the Na\y shall be unable to obtain the same at 
 fair prices, in which case he may construct the 
 same, or any portion thereof, in the navy-yards 
 of the United States: Provided, That the Secre- 
 tary of the Navy may purchase abroad only such 
 shafting as it may be impossible to obtain in 
 the Umted States in time for use in the con- 
 struction of the vessels herein provided for. 
 
 "Sec 7. That the Secretary of the Navy shall 
 not contract for the construction or completion 
 of any of said vessels, or of their engines, ma- 
 chinery, or boilers, until drawings and specifi- 
 cations of the same shall have been provided or 
 adopted by him; and after said drawings and 
 specificationsshall have been pro\'ided, adopted, 
 and approved as aforesaid, and work shall have 
 been commenced on any contract made there- 
 for, such plans and specifications shall not be 
 changed in any respect when the cost of such 
 change in the execution of the work exceeds 
 five hundred dollars, except upon the written 
 order of the Secretary or Acting Secretary of the 
 Navy; and if changes are thus made, the actual 
 cost thereof and the damage caused thereby 
 shall be ascertained, estimated, and determined 
 by a board of naval ofiicers to be provided for 
 in the contract; and in any contract made pur- 
 suant to this act it shall be provided in the terms 
 thereof that the contractor shall be bound by 
 the determination of said board, or a majority 
 thereof, as to the amount of increase or dimin- 
 ished compensation said contractor shall be 
 entitled to receive, if any, in consequence of 
 such change or changes. In every contract to 
 be made under this act there shall be prescribed 
 a period within which the work proAaded for in 
 said contract, or specified portions thereof, shall 
 be completed, and the completion of such work 
 within the periods prescribed shall be insured 
 by penal provisions. For the construction or 
 completion of such vessels hereinbefore pro- 
 xdded for as the Secretary of the Navy shall 
 propose to have constructed or completed by 
 contract, as well as also for the engines, boilers. 
 
 and machinery hereinbefore provided for, he 
 shall invite proposals from every American 
 shipbuilder and other person who shall show to 
 the satLsfact ion of the Secretary of the Navy that 
 ^\'ithin three months from the date of the con- 
 tract he wall be possessed of the necessary plant 
 for the performance of the work in the United 
 States which he shall offer to undertake, and 
 such contract shall be let to the lowest and best 
 rasponsible bidder or bidders, after at least sixty 
 days' advertisement, published in five leading 
 papers of the United States, inviting proposals 
 for the work proposed, which worK shall be 
 subject to all such rules, regulations, superin- 
 tendence by naval officers during construction, 
 and provisions as to bonds and security for the 
 quality and due completion of the work as the 
 Secretary of the Navy shall prescribe; and no 
 vessel, boiler, engine, machinery, or portion 
 thereof shall be accepted unless completed in 
 strict conformity with the contract; and the 
 authority given hereby shall take effect at once. 
 The Secretary of the Navy shall have the power 
 to reject any or all bids made under the pro- 
 visions of this act. 
 
 "Sec. 8. That the sum of one million dollars 
 is hereby appropriated towards the armament 
 of the vessels authorized by the act of March 
 third, eighteen hundred and eighty-five, of the 
 vessels authorized by section one of this act, 
 and of the unfinished monitors hereinbefore 
 mentioned, and of the Miantonomoh; and the 
 Secretary of the Navy is hereby authorized to 
 direct the application of such portions of this 
 sum as may be necessary to the manufacture or 
 purchase of such tools and machinery or the 
 erection of such structures as may be required 
 for use in the manufacture of such armament, 
 or any part thereof: Provided, That the Secretary 
 of the Navy may contract with domestic manu- 
 facturers for the construction of such portion of 
 the heavy guns herein provided for as may not 
 be built by the Government. 
 
 "Sec. 9. That the Secretary of the Navy is 
 hereby authorized to contract with the Pneu- 
 matic Dynamite-Gun Company of New York 
 for one dynamite-gun cruiser, as follow: Said 
 cruiser to be not less than two hundred and 
 thirty feet long, twenty-six feet breadth of 
 beam, seven and one-half feet draught, three 
 thousand two hundred horse-power, and guar- 
 anteed to attain a speed of twenty knots an 
 hour, and to be equipped with three pneumatic 
 dynamite-guns of ten and one-half inch caliber, 
 and guaranteed to throw shells containing two 
 hundred pounds of dynamite or other high 
 explosives at least one mile, each gun to be 
 capable of being discharged once in two 
 minutes, at a price not to exceed three hundred 
 and fifty thousand dollars; said contract to be 
 made only on condition that there shall be a 
 favorable report made by the existing Naval 
 Board on the system ; to be paid for as the work 
 progresses, and upon the report of such board 
 or boards of inspectors as the Secretary of the 
 Navy may for that purpose appoint, reserving 
 thirty per centum on all such payments until 
 the whole work is completed and accepted by 
 the Secretary of the Navy. 
 
 "The Pneumatic Dynamite-Gun Company 
 shall furnish bonds satisfactory to the Secretary 
 of the Navy for the faithful performance of its 
 
 1196 
 
Pt. S. S TA T UTES A T LARGE. 
 
 Aug. 4, 1886. 
 
 contract, and for the refunding of the money paid 
 hereunder in case of the nonperformance of the 
 same, and shall further agree with the Secretary 
 of the Navy upon a lirmt of price which shall 
 not be exceeded in any future contracts which 
 the Government may desire to enter into for 
 the purchase of the company's guns. 
 
 "Sec. 10. That towards the construction and 
 completion of the vessels hereinbefore men- 
 tioned, including the vessel and guns mentioned 
 in section nine, the sum of two million five 
 hundred thousand dollars is hereby appro- 
 priated, of which not more than seventy-five 
 thousand dollars may be expended in manu- 
 facturing, purchasing, and experimenting with 
 torpedoes of domestic manufacture and not 
 exceeding one hundred and fifty thousand 
 dollars may be expended, under the direction 
 of the Secretary of the Navy, in improving the 
 plant of such of the navy-yards as he may 
 select." 
 
 The provisions contained in the foregoing act 
 of August 3, 1886, relating to the construction 
 of the particular vessels therein specified, were 
 applied to the construction of other vessels 
 thereafter authorized by appropriations under 
 "Increase of the Navy " in annual naval appro- 
 priation acts, to and including the act of June 
 24, 1910 (36 Stat., 628), the language of which 
 act with respect thereto being as follows: 
 
 "In the construction of all of said vessels the 
 provisions of the act of August third, eighteen 
 hundred and eighty-six, entitled 'An act to 
 increase the naval establishment,' as to mate- 
 rials for said vessels, their engines, boilers, and 
 machinery, the contracts under which they 
 are built, the notice of any proposals for the 
 same; the plans, drawings, specifications there- 
 for, and the method of executing said contracts 
 shall be observed and followed, and, subject 
 to the provisions of this act, except that the 
 Secretary of the Navy may accept, in lieu of 
 an indemnity bond, the deposit by contractors 
 of United States Government or State bonds, 
 under such conditions and in such manner as 
 the Secretary may prescribe, having due regard 
 for the rights and protection of the United 
 States, all said vessels shall be built in compli- 
 ance with the terms of said act, and in all their 
 parts shall be of domestic manufacture; and 
 the steel materials shall be of domestic manu- 
 facture, and of the quality and characteristics 
 
 best adapted to the various purposes for which 
 it may be used, in accordance \vith specifica- 
 tions approved by the Secretary of the Navy, 
 provided contracts for furnishing the same in 
 a reasonable time, at a reasonable price, and of 
 the required quality can be made with respon- 
 sible parties. ' ' 
 
 In the appropriations for new vessels sul^se- 
 quent to the above-quoted act of June 24, 1910, 
 no reference has been made to the act of August 
 3, 1886. 
 
 Changes in contracts. — Prior to 1911 con- 
 tracts for the construction of naval vessels 
 contained stipulations as to changes therein, in 
 accordance with section 7 of the act of August 
 
 3, 1886, made applicable to such new construc- 
 tion by specific clauses in the annual naval 
 appropriation acts under "Increase of the 
 Navy." Since 1910 similar provisions as to 
 changes have been embodied in such contracts, 
 although no longer required by law. This 
 practice is based on an opinion of the Attorney 
 General of December 21, 1911 (29 Op. Atty. 
 Gen., 285), which held that "the Secretary of 
 the Navy may insert in the contracts for vessels 
 constructed under authority of the act of March 
 
 4, 1911 (36 Stat., 1265), a provision for making 
 changes in said contracts and for determining 
 the amount of increased or diminished compen- 
 sation arising therefrom, whether such compen- 
 sation be of the nature of liqmdated or unliciui- 
 dated damages." (File 22724-51, Apr. 7, 1921.) 
 
 From an examination of the cases it is clear 
 that' changes in public contracts may be made 
 without specific authority therefor; but it is 
 also clear that contract provisions relating to 
 such changes must be strictly observed. (File 
 22724-51, Apr. 7, 1921, citing 29 Op. Atty. 
 Gen., 285; 18 Op. Atty .Gen., 101; 28 Op. Atty. 
 Gen., 121; 21 Op. Atty. Gen., 207; Corliss 
 Steam Eng. Co. v. U. S., 10 Ct. Cls., 494, 91 
 U. S., 321; Hawkins v. U. S., 96 U. S., 689; 
 Ferris v. U. S., 28 Ct. Cls., 332; Williams Eng. 
 and Cent. Co. v. U. S., 55 Ct. Cls., 349; 2 Comp. 
 Dec, 182, 185; 4 Comp. Dec, 38; 3 Comp. 
 Dec, 54; 5 Comp. Dec, 83; 7 Comp. Dec, 92; 
 9 Op. Atty. Gen., 80, 103; 10 Op. Atty. Gen., 
 476; 15 Op. Atty. Gen., 481; 12 Op. Atty. Gen., 
 112; Satterlee v. U. S., 30 Ct. Cls., 31.) 
 
 See act of March 4, 1917 (39 Stat., 1193), as 
 to changes in contracts during war. 
 
 [1886, Aug. 4. Printing and engraving, Hydrographic office.] That all 
 printing and engraving for the Geological Survey, the Coast and Geodetic 
 Survey, the Hydrographic Office of the Navy Department, and the Signal 
 Service shall hereafter be estimated for separately and in detail, and appro- 
 priated for separately for each of said Bureaus. — (24 Stat., 255, chap. 902.) 
 
 See sections 430 and 431, Revised Statutes, and notes thereto; see also act of January 12, 
 1895, section 27 (28 Stat., 604). 
 
 [1886, Aug. 4. Intoxicating liquors, Board of Visitors, Naval Academy.] 
 Naval Academy. * * * That no part of this sum, or of any other ap- 
 propriation by Congress for expenses of the Board of Visitors, shall be used to 
 pay for intoxicating liquors. — (24 Stat., 268, chap. 903.) 
 
 See note to section 1511, Revised Statutes. 
 
 1197 
 
June 29, 1888. Pt. S. STATUTES AT LARGE. 
 
 [1887, Feb. 4, sec. 6. Transportation of troops and war material, etc.] 
 Tliat in time of war or threatened war preference and precedence shall, upon 
 demand of the President of the United States, be given over all other traffic 
 for the transportation of troops and material of war, and carriers shall adopt 
 every means within their control to facilitate and expedite the military traffic. 
 And in time of peace shipments consigned to agents of the United States for 
 its use shall l)e delivered by the carriers as promptly as possible and without 
 regard to any embargo that may have been declared, and no such embargo 
 shall apply to shipments so consigned. — (24 Stat., 380, chap. 104; 39 Stat., 
 604, chap. 417.) 
 
 The above was an amendment and reactment, 
 by act of Aus^iist 29, 1916 (39 Stat., 604), 
 of a portion of section 6 of an act approved 
 February 4, 1887 (24 Stat., 380-382), as 
 previously amended by acts of March 2, 
 
 1889 (25 Stat., 855), and June 29, 1906, 
 section 2 (34 Stat., 586-589). 
 See also act of August 29, 1916 (39 Stat., 645, 
 chap. 418). 
 
 [1887, Feb. 23. United States prisoners, hiring out labor of.] That it shall 
 not be lawful for any officer, agent, or servant of the Government of the United 
 States to contract with any person or corporation, or permit any warden, agent, 
 or official of any State prison, penitentiary, jail, or house of correction where 
 criminals of the United States may be incarcerated to hire or contract out the 
 labor of said criminals, or an}' part of them, who may hereafter be confined 
 in any prison, jail, or other place of incarceration for violation of any laws of 
 the Government of the United States of America. 
 
 Sec. 2. That any person who shall offend against the provisions of this 
 act shall be deemed guUty of a misdemeanor, and, on conviction thereof, 
 shall be imprisoned for a term not less than one year nor more than tliree years, 
 at the discretion of the court, or shall be fined not less than five hundred dollars 
 nor more than one thousand dollars for each offense. 
 
 Sec. 3. That all acts or parts of acts inconsistent with the provisions of 
 this act are hereby repealed ; and this act shall take effect and be in force from 
 and after its passage. — (24 Stat., 411, chap. 213.) 
 
 [1887, Feb. 23. Holidays, per diem employees.] That all per diem employees 
 of the Government, on duty at Washington or elsewhere in the United States, 
 shall be allowed the day of each year, which is celebrated as "Memorial" or 
 "Decoration Day" and the fourth of July of each year, as holiday, and shall 
 receive the same pay as on other days. — (24 Stat., 644, Res. No. 6.) 
 
 See note to section 1545, Revised Statutes. 
 
 [1888, June 29, sec. 6. Supervisor of New York Harbor.] That a line officer 
 of the Navy shall be designated by the President of the United States as 
 supervisor of the harbor, to act under the direction of the Secretary of War in 
 enforcing the provisions of this act, and in detecting offenders against the same. 
 This officer shall receive the sea-pay of his grade, and shall have personal charge 
 and supervision under the Secretary of War, and shall direct the patrol boats 
 and other means to detect and bring to punishment offenders against the pro- 
 visions of this act. — (25 Stat., 210, chap. 496.) 
 
 1198 
 
Ft. J. STATUTES AT LARGE. 
 
 Aug. 8, 1888. 
 
 The "harbor" referred to in this Bection is Duties of the supervisor of the harbor of New 
 
 the harbor of New York City. York, appointed as provided above, and 
 
 Sea-pay of naval officers, see notes to sections his powers as to appointment of deputies, 
 
 1556 and 1571, Revised Statutes. making arrests and seizures, etc., were 
 
 War Department, officers of the Navy detailed prescribed by act of May 28, 1908 (35 Stat., 
 
 to duty under direction of, see sections 427). 
 
 1437 and 1621, Revised Statutes, and notes 
 
 thereto. 
 
 [1888, Aug. 1. Condemnation of lands.] That in every case in which the 
 Secretary of the Treasury or any other officer of the Government has been, or 
 hereafter shall be, authorized to procure real estate for the erection of a public 
 building or for other public uses he shall be, and hereby is, authorized to 
 acquire the same for the United States by condemnation, under judicial proc- 
 ess, whenever in his opinion it is necessary or advantageous to the Govern- 
 ment to do so, and the United States circuit or district courts of the district 
 wherein such real estate is located, shall have jurisdiction of proceedings for 
 such condemnation, and it shall be the duty of the Attorney-General of the 
 United States, upon every application of the Secretary of the Treasury, under 
 this act, or such other officer, to cause proceedings to be commenced for con- 
 demnation, within thirty days from the receipt of the application at the 
 Department of Justice. 
 
 Sec. 2. The practice, pleadings, forms and modes of proceeding in causes 
 arising under the provisions of this act shall conform, as near as may be, to 
 the practice, pleadings, forms and proceedings existing at the time in like 
 causes in the courts of record of the State within which such circuit or district 
 courts are held, any rule of the court to the contrary notwithstanding. — (25 
 Stat., 357, chap. 728.) 
 
 Circuit courts of the United States were abol- 
 ished bv act of March 3, 1911, section 289 
 (36 Stat., 1167). 
 
 See act of July 9, 1918 (40 Stat., 888); and see 
 section 355, Revised Statutes, and note 
 thereto. 
 
 [1888, Aug. 8. Bonded officers, delinquency, notice to sureties, time for 
 bringing suit.] That hereafter, whenever any deficiency shall be discovered 
 in the accounts of any official of the United States, or of any officer disbursing 
 or chargeable vnih. public money, it shall be the duty of the accounting officers 
 making such discovery to at once notify the head of the Department having 
 control over the affairs of said officer of the nature and amount of said deficiency, 
 and it shall be the immediate duty of said head of Department to at once 
 notify all obligors upon the bond or bonds of such official of the nature of such 
 deficiency and the amount thereof. Said notification shall be deemed sufficient 
 if mailed at the post-office in the city of Washington, District of Columbia, 
 addressed to said sureties respectively, and directed to the respective post- 
 offices where said obligors may reside, if known; but a failure to give or mail 
 such notice shall not discharge the surety or sureties upon such bond. 
 
 Sec. 2. That if, upon the statement of the account of any official of the 
 United States, or of any officer disbursing or chargeable with public money, 
 by the accounting officers of the Treasury, it shall thereby appear that he is 
 indebted to the United States, and suit therefor shall not be instituted within 
 five years after such statement of said account, the sureties on his bond shall 
 not be liable for such indebtedness. — (25 Stat., 387, chap. 787.) 
 
 See sections 1383-1385, Revised Statutes, and notes thereto; see also act of February 24, 1919, 
 section 1320 (40 Stat., 1148). 
 
 1199 
 
Aug. 14, 1888. /'(. S. STATUTES AT LARGE 
 
 [1888, Aug. 14. Civil War cases; removal of charge of desertion, issuance 
 of discharge certificate, etc.] That the cliargc of desertion now standing on 
 the rolls and records of the Navy or Marine Corps against any appointed or 
 enlisted man of the Navy or Marine Corps who sorvetl in the late war may in 
 the discretion of the Secretary of the Navy be removed in all cases where it 
 shall be made to appear to the satisfaction of the Secretary of the Navy from 
 such rolls and records or from other satisfactory evidence, that any such 
 appointed or enlisted man served faithfully until the expiration of his term of 
 enlistment, or until the first day of May anno Domini eighteen hundred and 
 sixty-five, having previously served six months or more, or was prevented 
 from completing his term of service by reason of wounds received or disease 
 contracted in the line of duty, but who, by reason of absence from his command 
 at the time he became entitled to his discharge, failed to be mustered out and 
 to receive a discharge from the service: Provided, That no such appointed or 
 enlisted man shall be relieved under this section who, not being sick or wounded, 
 left his command, without proper authority, while the same was in presence 
 of the enemy. 
 
 Sec, 2. That the Secretary of the Navy is hereby authorized to remove 
 the charge of desertion standing on the rolls or records of the Navy or Marine 
 Corps against any appointed or enlisted man of the Navy or Marine Corps who 
 served in the late war, in all cases where it shall be made to appear, to the 
 satisfaction of the Secretary of the Navy, from such rolls or from other satis- 
 factory evidence, that such appointed or enlisted man charged with desertion 
 or with absence without leave, after such charge of desertion or absence without 
 leave, and within a reasonable time thereafter, voluntarily returned to and 
 served in the line of his duty until he was mustered out of the service, and 
 received a certificate of discharge therefrom, or, while so absent, and before 
 the expiration of his term of enlistment, died from wounds, injury, or disease 
 received or contracted in the service and in the line of duty. 
 
 Sec. 3. That the charge of desertion now standing on the rolls or records 
 of the Navy or Marine Corps against any appointed or enlisted man of the Navy 
 or Marine Corps who served in the late war, by reason of his having enlisted at 
 any station or on board of any vessel of the Navy without having first received 
 a discharge from the station or vessel in which he had previously served, shall 
 be removed in all cases wherein it shall be made to appear to the satisfaction of 
 the Secretary of the Navy from such rolls and records, or from other satisfactory 
 testimony, that such re-enlistment was not made for the purpose of securing 
 bounty or other gratuity that he would not have been entitled to, had he 
 remained under his original term of enlistment: Provided, That no appointed 
 or enlisted man shall be relieved under this act who, not being sick or wounded, 
 left his command without proper authority while the same was in presence of 
 the enemy, or who, at the time of leaving his command, was in arrest or under 
 charges, or in whose case the period of absence from the service exceeded three 
 months. 
 
 Sec. 4. That in all cases where the charge of desertion shall be removed 
 under the provisions of this act from the record of any appointed or enlisted 
 man of the Navy or Marine Corps who has not received a certificate of discharge 
 it shall be the duty of the Secretary of the Navy to issue to such appointed or 
 
 1200 
 
Pt. 3. STATUTES AT LARGE. Feb. 8, 1889. 
 
 enlisted man, or in case of his death, to his heirs or legal representatives, a 
 certificate of discharge. 
 
 Sec. 5. That when the charge of desertion shall be removed under the 
 provisions of this act from the record of any appointed or enlisted man of the 
 Navy or Marine Corps, such man, or, in case of his death, the heirs or legal 
 representatives of such man, shall receive all pay and bounty which may have 
 been withheld on account of such charge of desertion or absence without leave : 
 Provided, however, That this act shall not be so construed as to give to any such 
 man as may be entitled to relief under the provisions of this act, or, in case of 
 his death, to the heirs or legal representatives of any such man, the right to 
 receive pay and bounty for any period of time during which such man was 
 absent from his command without leave of absence: And provided further, That 
 no appointed or enlisted man, nor the heirs or legal representatives of any such 
 man, who served in the Navy or Marine Corps a period of less than six months 
 shall be entitled to the benefit of the provisions of this act: And provided further. 
 That all applications for relief under this act shall be made to and filed with the 
 Secretary of the Navy within the period of five years from and after its passage, 
 and all applications not so made and filed within the said term of five years 
 shall be forever barred, and shall not be received or considered. 
 
 Sec. 6. That all acts and parts of acts inconsistent with the provisions of 
 this act are hereby repealed. — (25 Stat., 442-443, chap. 890.) 
 
 See note to Constitution, Article I, section 7, 
 clause 2, under ' ' Veto of bill to alter mili- 
 tary records." 
 
 See act of May 24, 1900 (31 Stat., 183), which 
 "revived and reenacted" this act, and 
 removed the limitation of time contained 
 in section 5 thereof. 
 
 See section 418, Revised Statutes, and note 
 thereto, as to property of the Navy De- 
 partment. 
 
 [1888, Oct. 19, sec. 3. Loan of scientific instruments.] That the Secretary 
 of the Navy be, and he is hereby, authorized, in his discretion, to loan any 
 scientific instruments in the possession of any of the bureaus under his charge, 
 and not in use, to persons taking observations, or making investigations in con- 
 nection with, or for the use of, the Signal Service under such regulations as he 
 may prescribe, taking such security for the safe-keeping and return of such 
 instruments on demand as he may deem necessary. — (25 Stat., 600, chap. 1210.) 
 
 The civilian duties of the Signal Corps were, 
 by act of October 1, 1890 (26 Stat., 653), 
 transferred to the Weather Bureau, estab- 
 lished in the Department of Agriculture 
 by said act. 
 
 [1889, Feb. 8. Home on receiving ships, men honorably discharged.] That 
 the Secretary of the Navy be, and he is hereby, authorized to permit any 
 person receiving the honorable discharge authorized by section fourteen hun- 
 dred and twenty-nine of the Revised Statutes to elect a home on board of any 
 of the United States receiving-ships, during any portion of the three months 
 granted by law as the limit of time within which to receive the pecuniary 
 benefit of such discharge, the men so choosing a home to be entitled to one 
 ration per day for their keeping while furnished with such home, but not to 
 pay, other than that authorized by section fifteen hundred and seventy-three 
 of the Revised Statutes of the United States upon re-enlistment: Provided, 
 That the persons so furnished with a home shall be amenable to such regula- 
 
 1201 
 
amenable to jurisdiction of naval courts- 
 martial. 
 
 Feb. 16, 1889. Pt. S. STATUTES AT LARGE. 
 
 tions as may be proscribed by the Secretary of the Navy or other competent 
 authority. — (25 Stat., 657, chap. 115.) 
 
 See notes to sections 1426, 1429, and 1573, Re- 
 vised Statutes; see also note to section 
 1624, Revised Statutes, as to persons 
 
 [1889, Feb. 9. Deposit of savings, enlisted men of the Navy.] That any 
 enlisted man or appointed petty officer of the Navy may deposit his savings, 
 in sums not less than five dolhirs, with the paymaster upon whose books his 
 account is borne; and he shall be furnished with a deposit-book, in which the 
 said paymaster shall note, over his signature, the amount, date, and place of 
 such deposit. The money so deposited shall be accounted for in the same 
 manner as other public funds, and shall pass to the credit of the appropriation 
 for "Pay for the Navy," and shall not be subject to forfeiture by sentence of 
 court-martial, but shaU be forfeited by desertion, and shall not be permitted to 
 be paid until final payment on discharge, or to the heirs or representatives of a 
 deceased sailor, and that such deposit be exempt from liability for such sailor's 
 debts: Provided, That the Government shall be liable for the amount deposited 
 to the person so depositing the same. 
 
 Sec. 2. That for any sums not less than five dollars so deposited for the 
 period of six months or longer, the sailor, on his final discharge, shall be paid 
 interest at the rate of four per centum per annum. 
 
 Sec. 3. That the system of deposits herein established, shall be carried into 
 execution under such regulations as may be established by the Secretary 
 of the Navy.— (25 Stat., 657-658, chap. 119.) 
 
 See act of June 29, 1906 (34 Stat., 579,i, as to 
 deposit of savings by enlisted men of the 
 
 Marine Corps; see also notes to sections 
 1569, 1612, and 1621, Revised Statutes. 
 
 [1889, Feb. 16. Useless papers, disposition of; report to Congress.] That 
 whenever there shall be in any one of the Executive Departments of the 
 Government an accumulation of files of papers, which are not needed or useful 
 in the transaction of the current business of such Department and have no 
 permanent value or historical interest, it shall be the duty of the head of such 
 Department to submit to Congress a report of that fact, accompanied by a 
 concise statement of the condition and character of such papers. And upon 
 the submission of such report, it shall be the duty of the presiding officer of 
 the Senate to appoint two Senators, and of the Speaker of the House of Kep- 
 resentatives to appoint two Representatives, and the Senators and Repre- 
 sentatives so appointed shall constitute a joint committee, to which shall be 
 referred such report, with the accompanying statement of the condition and 
 character of such papers, and such joint committee shall meet and examine 
 such report and statement and the papers therein described, and submit to 
 the Senate and House, respectively, a report of such examination and their 
 recommendation. And if they report that such files of papers, or any part 
 thereof, are not needed or useful in the transaction of the current business of 
 such Department, and have no permanent value or historical interest, then it 
 shall be the duty of such head of the Department to sell as waste paper, or 
 otherwise dispose of such files of papers upon the best obtainable terms after 
 due publication of notice inviting proposals therefor, and receive and pay the 
 
 1202 
 
Pt. S. STATUTES AT LARGE. 
 
 Feb. 7, 1890. 
 
 March 3, 1915 (38 Stat. , 929'). See also note 
 to section 418, Revised Statutes. 
 
 proceeds thereof into the Treasury of the United States, and make report thereof 
 to Congress. — (25 Stat., 672, chap. 171.) 
 
 See acts of March 2, 1895 (28 Stat., 933), Febru- 
 ary 16, 1909, section 14 (35 Stat., 622), 
 August 22, 1912 (37 Stat., 329-330), and 
 
 [1889, Mar. 1. Outfits on first enlistment.] That in order to encourage 
 the enlistment of boys as apprentices in the United States Navy, the Secre- 
 tary of the Navy is hereby authorized to furnish as a bounty to each of said 
 apprentices after his enhstment, and when first received on board of a training- 
 ship, an outfit of clothing not to exceed in value the sum of forty-five dollars. — 
 (25 Stat., 781, chap. 331.) 
 
 of the Navy an imperative obligation and not 
 merely discretionary power. The whole pur- 
 pose of the act is to "encourage the enlistment 
 of boys as apprentices in the I'nited States 
 Navy," and upon the Secretary of the Navy is 
 imposed the duty of executing the provisions 
 of the statute. (25 Op. Attv. Gen., 270, 273. 
 See note to act of June 29, 1906, 34 Stat., 553, 
 as to refund of enlistment bounty.) 
 
 See notes to sections 1418, 1569, and 3689 Re- 
 
 \i8ed Statutes; and see act of March 3, 1915 
 
 (38 Stat., 932), and note thereto. 
 See note to section 1556, Re^'ised Statutes, as to 
 
 uniform gratuity of the Naval Reserve 
 
 Force. 
 Furnishing of bounty held mandatory. — 
 The language used by Congress in this act is 
 to be construed as imposing upon the Secretary 
 
 [1889, Mar. 2. Supplies on hand; report to Congress.] It shall be the duty 
 of the Bureau of Provisions and Clothing to cause property accounts to be kept 
 of all the supplies pertaining to the naval establishment, and to report annually 
 to Congress the money values of the supplies on hand at the various stations at 
 the beginning of the fiscal year, the dispositions thereof, and of the purchases, 
 and the expenditures of supplies for the year, and the balances remaining on 
 hand at the end thereof.— (25 Stat., 817-818, chap. 371.) 
 
 See note to section 419, ReWsed Statutes, as to See acts of June 25, 1910 (36 Stat., 792), March 4, 
 
 change in designation of the Bureau of Pro- 1911 (36 Stat., 1279), June 30, 1914 (38 Stat., 
 
 ^•isionsand Clothing, and as to the duties of 405), and March 1, 1921 (41 Stat., 1169), as 
 
 that bureau. to the " Naval supply account " and "Naval 
 
 See note to section 429, Rexised Statutes, as supply account fund." 
 to annual reports to Congress. 
 
 [1889, Mar. 2. Transfer of accumulated supplies.] And for the purpose 
 of utilizing accumulated naval supplies, the transfer is authorized, after requi- 
 sition upon the Paymaster-General of the Navy, of any supplies belongmg to 
 one bureau and available for the use of another without reimbursement therefor 
 by the bureau receiving the supplies so transferred: Provided, That supplies 
 obtained for a specific object and still needed therefor, and supplies bought 
 within the fiscal year in which the requisition is made, and provisions, clothing, 
 and small stores shall not be subject to transfer without charge under the terms 
 of this act.— (25 Stat., 818, chap. 371.) 
 
 to the "Naval supply account "' and "Naval 
 supply account fund." See also section 
 3718, Re\ised Statutes, as to purchase of 
 supplies. 
 
 See act of March 2, 1891 (26 Stat., 807), and note 
 to section 418, Revised Statutes; see also 
 acts of June 25, 1910 (36 Stat. , 792), March 4, 
 1911 (36 Stat. , 1279), June 30, 1914 (38 Stat., 
 405), and March 1, 1921 (41 Stat., 1169), as 
 
 [1890, Feb. 7. Certificates in lieu of lost discharges.] That from and after 
 the passage of this act, whenever satisfactory proof is furnished at the Navy De- 
 partment that any conmiissioned officer, regular or volunteer, appointed or en- 
 listed man who served in the Navy or the Marine Corps of the United States in 
 the war of eighteen hundred and twelve, the Mexican war, or the war of the re- 
 
 1203 
 
Aug. 19, 1890. Pi. S. ISTATUTES AT LARGE. Navigation. 
 
 hellion, has lost his certificate of discharge, or the same has been destroyed 
 without his privity or procurement, the Secretary of the Navy shall be author- 
 ized to furnish to such commissioned officer, regular or volunteer, appointed or 
 enlisted man, a certificate of discharge in lieu thereof. Provided, That such cer- 
 tificate shall not be accepted as a voucher for the payment of any claim against 
 the United States for pay, bounty, or any other allowance, or as evidence in any 
 other case. — (26 Stat., 6, chap. 8.) 
 
 See notes to sections 1426 and 1427, Revised Statutes. 
 
 [1890, Apr. 30, sec. 3. Acquisition of collections for National Zoological 
 Park.] That the heads of executive departments of the Government are hereby 
 authorized and directed to cause to be rendered all necessary and practicable 
 aid to the said regents in the acquisition of collections for the Zoological Park. — 
 (26 Stat., 78 chap. 173.) 
 
 The words ' ' said regents " refer to the regents of the Smithsonian Institution. 
 
 [1890, June 30. Sale of condemned Naval Supplies, etc.] The Secretary of 
 the Navy is hereby authorized to sell, after advertisement of the sale for such 
 time as in his judgment the public interests may require, condemned naval sup- 
 plies, stores, and materials, either by public auction or by advertisement for 
 sealed proposals for the purchase of the same. — (26 Stat., 194, chap. 640.) 
 
 See sections 1541, 3618, and 3692, Revised Statutes, and notes thereto; see also acts of 
 August 5, 1882, section 2 (22 Stat., 296), and March 2, 1905(33 Stat., 41). 
 
 [1890, June 30. Clothing and small stores fund.] Bureau of provisions and 
 clothing. * * * And the clothing fund and small stores fund shall be here- 
 after consolidated and administered as a fund to be known as the clothing and 
 small stores fund. — (26 Stat., 197, chap. 640.) 
 
 See act of February 14, 1879 (20 Stat., 288), and See note to section 419, Revised Statutes, as to 
 note to section 3689, Revised Statutes. change in designation of the Bureau of Pro- 
 
 visions and Clothing in the Navy Depart- 
 ment. 
 
 [1890, July 11. Assistant Secretary of the Navy.] For an assistant Secretary 
 of the Navy, to be appointed, from civil life, by the President, by and with the 
 advice and consent of the Senate * * *. — (26 Stat., 254, chap. 667.) 
 
 See act of March 3, 1891 (26 Stat., 934), and see note to section 415, Revised Statutes. 
 
 [1890, July 11, Sec. 2. IneflBlcient employees, report to Congress.] That here- 
 after it shall be the duty of the heads of the several executive departments of the 
 Government to report to Congress each year in the annual estimates the num- 
 ber of employees in each bureau and office and the salaries of each who are 
 below a fair standard of efficiency. — (26 Stat., 268, chap. 667.) 
 See sections 429 and 430, Revised Statutes, and notes thereto. 
 
 [1890, Aug. 19. Regulations for preventing collisions at sea.] That the follow- 
 ing regulations for preventmg coUisions at sea shall be followed by all public 
 and private vessels of the United States upon the high seas and in all waters 
 connected therewith, navigable by sea-going vessels. — (26 Stat., 320, chap. 802.) 
 
 of laws, so far as applicable to the naviga- 
 tion of the Great Lakes and their connect- 
 ing and tributary waters as far east as Mont- 
 real, inconsistent with tlie foregoing rules." 
 
 The act of February 8, 1895 (28 Stat., 645), 
 establishing rules "to regulate na\dgation 
 on the Great Lakes and their connecting 
 and tributary waters," repealed in section 
 4 thereof (28 Stat., 650), "all laws or parts 
 
 1204 
 
Navigation. 
 
 Ft. 3. STATUTES AT LARGE 
 
 Aug. 19, 1890. 
 
 Navigation on the Red River of the North and 
 rivers emptying into the Gulf of Mexico 
 and their tributaries: See sections 4233 and 
 4412, Re\dsed Statutes, and notes thereto. 
 
 Navigation on the Great Lakes and their con- 
 necting and tributary waters as far east as 
 Montreal: See act of February 8, 1895 
 (28 Stat., 645), and notes thereto. 
 
 Na\'igation on all harbors, rivers, and inland 
 waters of the United States, except the 
 Great Lakes and their connecting and 
 tributary waters as far east as Montreal, 
 and except the Red River of the North and 
 
 rivers emptj-ing into the Gulf of Mexico 
 and their tributaries: See act of June 7, 
 1897 (30 Stat., 96). 
 
 Navigation, Pearl Harbor, Hawaii: See act of 
 August 22, 1912 (37 Stat., 341). 
 
 Rules governing motor boats: See act of June 
 9, 1910 (36 Stat., 462). 
 
 See, generally, notes to sections 4233 and 4412, 
 Revised Statutes; and Navy Regulations, 
 1920 (chapter 55), quoting laws, and regu- 
 lations of the Department of Commerce, 
 "for preventing collisions," etc. 
 
 PRELIMINARY. 
 
 In the following rules every steam-vessel which is under sail and not 
 under steam is to be considered a sailing-vessel, and every vessel under steam, 
 whether under sail or not, is to be considered a steam-vessel. 
 
 The word ''steam-vessel" shall include any vessel propelled by ma- 
 chinery. 
 
 A vessel is ''under way" within the meaning of these rules when she is 
 not at anchor, or made fast to the shore, or aground. — (26 Stat., 320-321, chap. 
 802.) 
 
 RULES CONCER]S^NG LIGHTS, AND SO FORTH. 
 
 The word '"visible" in these rules when applied to lights shall mean 
 visible on a dark night with a clear atmosphere. 
 
 Article 1. The rules concerning lights shall be complied with in all 
 weathers from sunset to sunrise, and during such time no other lights which 
 may be mistaken for the prescribed light shall be exhibited. — (26 Stat., 321, 
 chap. 802.) 
 
 Art. 2. — A steam-vessel when under way shall carry — (a) On or in 
 front of the foremast, or if a vessel without a foremast, then in the fore part 
 of the vessel, at a height above the hull of not less than twenty feet, and if the 
 breadth of the vessel exceeds twenty feet, then at a height above the hull not 
 less than such breadth, so, however, that the light need not be carried at a 
 greater height above the hull than forty feet, a bright white light, so constructed 
 as to show an unbroken light over an arc of the horizon of twenty points of the 
 compass, so fixed as to throw the light ten points on each side of the vessel, 
 namely, from right ahead to two points abaft the beam on either side, and of 
 such a character as to be visible at a distance of at least five miles. 
 
 (b) On the starboard side a green light so constructed as to show an 
 unbroken light over an arc of the horizon of ten points of the compass, so 
 fixed as to throw the light from right ahead to two points abaft the beam 
 on the starboard side, and of such a character as to be visible at a distance 
 of at least two miles. 
 
 (c) On the port side a red light so constructed as to show an unbroken 
 light over an arc of the horizon of ten points of the compass, so fixed as to 
 throw the light from right ahead to two points abaft the beam on the port side, 
 and of such a character as to be visible at a distance of at least two miles. 
 
 (d) The said green and red side-lights shall be fitted with inboard screens 
 projecting at least three feet forward from the light, so as to prevent these 
 lights from being seen across the bow. 
 
 1205 
 
Aug. 19, 1890. Pt. 3. STATUTES AT LARGE. Navigation. 
 
 (e) A steam-vcssol when under way may carry an additional white light 
 similar in construction to the light mentioned in subdivision (a). These two 
 lights shall be so placed in line with the keel that one shall be at least fifteen 
 feet higher than the other, and in such a position with reference to each other 
 that the lower light shall be forward of the upper one. The vertical distance 
 between these lights shall be less than the horizontal distance. — (26 Stat., 321, 
 chap. 802.) 
 
 Art. 3. A steam-vessel when towing another vessel shall, in addition 
 to her side-lights, carry two bright white lights in a vertical line one over the 
 other, not less than six feet apart, and when towing more than one vessel shall 
 carry an additional bright white light six feet above or below such light, if the 
 length of the tow measuring from the stern of the towing vessel to the stem 
 of the last vessel towed exceeds six hundred feet. Each of these lights shall 
 be of the same construction and character, and shall be carried in the same posi- 
 tion as the white light mentioned in article two (a), excepting the additional 
 light, which may be carried at a height of not less than fourteen feet above the 
 hull. 
 
 Such steam-vessel may carry a small white light abaft the funnel or 
 aftermast for the vessel towed to steer b}-, but such light shall not be visible 
 forward of the beam.— (26 Stat., 321, chap. 802.) 
 
 Art. 4. (a) A vessel which from any accident is not under command 
 shall carry at the same height as a white light mentioned in article two (a), 
 where they can best be seen, and if a steam-vessel in lieu of that light, two red 
 lights, in a vertical line one over the other, not less than six feet apart, and of 
 such a character as to be visible all around the horizon at a distance of at least 
 two miles; and shall by day carry in a vertical line one over the other, not less 
 than six feet apart, where they can best be seen, two black balls or shapes, 
 each two feet in diameter. 
 
 (b) A vessel employed in laying or in picking up a telegraph cable shall 
 carry in the same position as the white light mentioned in article two (a), 
 and if a steam-vessel in lieu of that light, three lights in a vertical line one over 
 the other not less than six feet apart. The highest and lowest of these lights 
 shall be red, and the middle light shall be white, and they shall be of such a 
 character as to be visible all around the horizon, at a distance of at least two 
 nules. By day she shall carry in a vertical line, one over the other, not less 
 than six feet apart, where they can best be seen, three shapes not less than two 
 feet in diameter, of which the highest and lowest shall be globular in shape and 
 red in color, and the middle one diamond in shape and white. 
 
 (c) The vessels referred to in this article, when not making way through 
 the water, shall not carry the side-lights, but when making way shall carry 
 them. 
 
 (d) The lights and shapes required to be shown by this article are to be 
 taken by other vessels as signals that the vessel showing them is not under 
 command and can not therefore get out of the way. 
 
 These signals are not signals of vessels in distress and requiring assistance. 
 Such signals are contained in article thirty-one. — (26 Stat., 322, chap. 802.) 
 
 Art. 5. A sailing-vessel under way and any vessel being towed shall 
 carry the same lights as are prescribed by article two for a steam-vessel under 
 
 1206 
 
Navigation. Pt. 3. STATUTES AT LARGE. Aug. 19, 1890. 
 
 way, with the exception of the white hghts mentioned therein, which they 
 shall never carry.— (26 Stat., 322, chap. 802.) 
 
 Art. 6. Whenever, as in the case of small vessels under way during bad 
 weather, the green and red side-lights can not be fixed, these lights shall be 
 kept at hand, lighted and ready for use; and shall, on the approach of or to 
 other vessels, be exhibited on their respective sides in sufficient time to pre- 
 vent collision, in such manner as to make them most visible, and so that the 
 green light shall not be seen on the port side nor the red light on the starboard 
 side, nor, if practicable, more than two points abaft the beam on their respec- 
 tive sides. 
 
 To make the use of these portable lights more certain and easy the lan- 
 terns containing them shall each be painted outside with the color of the light 
 they respectively contain, and shall be provided with proper screens. — (26 
 Stat., 322, chap. 802.) 
 
 Art. 7. Steam vessels of less than forty, and vessels under oars or sails 
 of less than twenty tons gross tonnage, respectively, and rowing boats, when 
 under way, shall not be required to carry the lights mentioned in article two 
 (a) , (b) , and (c) , but if they do not cany them they shall be provided with the 
 following lights: 
 
 "First. Steam vessels of less than forty tons shall carry — 
 
 " (a) In the fore part of the vessel, or on or in front of the funnel, where 
 it can best be seen, and at a height above the gunwale of not less than nine feet, 
 a bright white light constructed and fixed as prescribed in article two (a), and 
 of such a character as to be visible at a distance of at least two miles. 
 
 " (b) Green and red side-lights constructed and fLxed as prescribed in 
 article two (b) and (c), and of such a character as to be visible at a distance of 
 at least one mile, or a combined lantern showing a green light and a red light 
 from right ahead of two points abaft the beam on their respective sides. Such 
 lanterns shall be carried not less than three feet below the white light. 
 
 ''Second. Small steamboats, such as are carried by seagoing vessels, may 
 carry the white light at a less height than nine feet, above the gunwale, but it 
 shall be carried above the combined lantern mentioned in subdivision one (b)". 
 
 ''Third. Vessels under oars or sails of less than twenty tons shall have 
 ready at hand a lantern with a green glass on one side and a red glass on the 
 other, which, on the approach of or to other vessels, shall be exhibited in suffi- 
 cient time to prevent collision, so that the green light shall not be seen on the 
 port side nor the red light on the starboard side. 
 
 "Fourth. Rowing boats, whether under oars or sail, shall have ready 
 at hand a lantern showing a white light which shall be temporarily exhibited 
 in sufficient time to prevent collision. 
 
 "The vessels referred to in this article shall not be obfiged to carry the 
 lights prescribed by article four (a) and article eleven, last paragraph. — (26 
 Stat., 322-323, chap. 802; 28 Stat., 82-83, chap. 83.) 
 
 This article was expressly amended and reenacted to read as above, by act of May 28, 1894. 
 
 (28 Stat., 82-83.) 
 
 Art. 8. Pilot vessels when engaged on their station on pilotage duty 
 shall not show the lights required for other vessels, but shall carry a white 
 
 1207 
 
Aug. 19, 1890. rt. S. STATUTES AT LARGE. Navigation. 
 
 light at the masthead, visible all around the horizon, and shall also exhibit a 
 flare-up li<::ht at short intervals, which shall never exceed fifteen minutes. 
 
 On the near apj)roach of or to other vessels they shall have their side 
 lights lighted, ready for use, and shall flash or show them at short intervals, 
 to indicate the tlirection in which they are heading, but the green light shall not 
 be shown on the port side, nor the red light on the starboard side. 
 
 A pilot-vessel of such a class as to be obliged to go alongside of a vessel 
 to put a pilot on board may show the white light instead of canying it at the 
 masthead, and may, instead of the colored lights above mentioned, have at 
 hand, ready for use, a lantern with a green glass on the one side and a red glass 
 on the other, to be used as prescribed above. 
 
 Pilot-vessels when not engaged on their station on pilotage duty shall carry 
 lights similar to those of other vessels of their tonnage. — (26 Stat., 323, chap. 
 802.) 
 
 lights required for all pilot boats the red 
 light above mentioned, but not the colored 
 side lights. 
 
 ' ' When not engaged on her station on pilotage 
 dnty, she shall carry the same lights as 
 other steam vessels. 
 
 "Sec. 2. That this Act shall be construed as 
 supplementary to article eight of the Act 
 approved June seventh, eighteen hundred 
 and ninety-seven, entitled 'An Act to 
 adopt regulations for preventing collisions 
 upon certain harbors, rivers, and inland 
 waters of the United States, ' and to article 
 eight of an Act approved August nine- 
 teenth, eighteen hundred and ninety, 
 entitled 'An Act to adopt regulations for 
 preventing collisions at sea.' '' 
 
 By act of February' 19, 1900 (31 Stat., 30-31), 
 
 which was expressly "supplementary" to 
 
 this article, it was provided: "That a 
 
 steam pilot vessel, when engaged on her 
 
 station on pilotage duty and in waters of the 
 
 United States, and not at anchor, shall, in 
 
 addition to the lights required for all pilot 
 
 boats, carry at a distance of eight feet below 
 
 her white masthead light a red light, visible 
 
 all aroimd the horizon and of such a charac- 
 ter as to be \'i8ible on a dark night with a 
 
 clear atmosphere at a distance of at least 
 
 two miles, and also the colored side lights 
 
 required to be carried by vessels when 
 
 imder way. 
 "When engaged on her station on pilotage duty 
 
 and in waters of the United States, and at 
 
 anchor, she shall carry in addition to the 
 
 Article 9. Fishing vessels and fishing boats, when under way and when 
 not required by this article to carry or show the lights hereinafter specified, 
 shall carry or show the lights prescribed for vessels of their tonnage under way. 
 
 (a) Open boats, by which is to be understood boats not protected from 
 the entry of sea water by means of a continuous deck, when engaged in any 
 fishing at night, with outlying tackle extending not more than one hundred 
 and fifty feet horizontally from the boat into the seaway, shall carry one all- 
 round white light. 
 
 Open boats, when fishing at night, with outlying tackle extending more than 
 one hundred and fifty feet horizontally from the boat into the seaway, shall 
 carry one all-round white light, and in addition, on approaching or being 
 approached by other vessels, shall show a second white light at least three feet 
 below the first light and at a horizontal distance of at least five feet away from 
 it in the direction in which the outlying tackle is attached. 
 
 (b) Vessels and boats, except open boats as defined in subdivision (a), 
 when fishing with drift nets, shall, so long as the nets are wholly or partly in the 
 water, carry two white lights where they can best be seen. Such lights shall 
 be placed so that the vertical distance between them shall be not less than six 
 feet and not more than fifteen feet, and so that the horizontal distance between 
 them, measured in a line with the keel, shall be not less than five feet and not 
 more than ten feet. The lower of these two lights shall be in the direction of the 
 
 1208 
 
Navigation. Pt. 3. STATUTES AT LARGE. Aug. 19, 1890. 
 
 nets, and both of them shall be of such a character as to show all around the 
 horizon, and to be visible at a distance of not less than three miles. 
 
 Within the Mediterranean Sea and in the seas bordering the coasts of 
 Japan and Korea sailing fishing vessels of less than twenty tons gross tonnage 
 shall not be obliged to carry the lower of these two lights. Should they, how- 
 ever, not carry it, they shall show in the same position (in the direction of the 
 net or gear) a white light, visible at a distance of not less than one sea mile, on 
 the approach of or to other vessels. 
 
 (c) Vessels and boats, except open boats as defined in subdivision (a) 
 when line fishing with their lines out and attached to or hauling their lines, 
 and when not at anchor or stationary within the meaning of subdivision (h), 
 shall carry the same lights as vessels fishing with drift nets. When shooting 
 lines, or fishing with towing lines, they shall carry the lights prescribed for a 
 steam or sailing vessel under way, respectively. 
 
 Within the Mediterranean Sea and in the seas bordering the coasts of 
 Japan and Korea sailing fishing vessels of less than twenty tons gross tonnage 
 shall not be obliged to carry the lower of these two lights. Should they, how- 
 ever, not carry it, they shall show in the same position (in the direction of the 
 lines) a white light, visible at a distance of not less than one sea mile on the 
 approach of or to other vessels. 
 
 (d) Vessels when engaged in trawling, by which is meant the dragging of 
 an apparatus along the bottom of the sea — 
 
 First. If steam vessels, shall carry in the same position as the the white 
 light mentioned in article two (a) a tri-colored lantern so constructed and 
 fixed as to show a white light from right ahead to two points on each bow, 
 and a green light and a red light over an arc of the horizon from two points 
 on each bow to two points abaft the beam on the starboard and port sides, 
 respectively; and not less than six nor more than twelve feet below the tri- 
 colored lantern a white light in a lantern, so constructed as to show a clear, 
 uniform, and unbroken light all around the horizon. 
 
 Second. If sailing vessels, shall carry a white light in a lantern, so con- 
 structed as to show a clear, uniform, and unbroken light all around the horizon, 
 and shall also, on the approach of or to other vessels, show where it can best be 
 seen a white flare-up light or torch in sufficient time to prevent collision. 
 
 All lights mentioned in subdivision (d) first and second shall be visible at 
 a distance of at least two miles. 
 
 (e) Oyster dredgers and other vessels fishing with dredge nets shall carry 
 and show the same lights as trawlers. 
 
 (f) Fishing vessels and fishing boats may at any time use a flare-up light 
 in addition to the lights which they are by this article required to carry and 
 show, and they may also use working lights, 
 
 (g) Every fishing vessel and every fishing boat under one hundred and 
 fifty feet in length, when at anchor, shall exhibit a white light visible all around 
 the horizon at a distance of at least one mile. 
 
 Every fishing vessel of one hundred and fifty feet in length or upward, 
 when at anchor, shall exhibit a white light visible all around the horizon at 
 a distance of at least one mile, and shall exhibit a second light as provided for 
 vessels of such length by article eleven. 
 
 1209 
 
Aug. 19, 1890. 
 
 Pt. S. STATUTES AT LARGE. 
 
 Navigation. 
 
 Should any such vessel, whether under one hundred and fifty feet in 
 lenp;th or of one hundred and fifty feet in length or upward, be attached to 
 a net or other fishing gear, she shall on the approach of other vessels show an 
 additional white light at least three feet below the anchor light, and at a hori- 
 zontal distance of at least five feet away from it in the direction of the net or 
 
 gear. 
 
 (h) If a vessel or boat when fishing becomes stationary in consequence 
 of her gear getting fast to a rock or otner obstruction, she shall in daytime 
 haul down the day signal required by subdivision (k) ; at night show tlie light 
 or lights prescribed for a vessel at anchor; and during fog, mist, falling snow, 
 or heavy rain storms make the signal prescribed for a vessel at anchor. (See 
 subdivision (d) and the last paragraph of article fifteen.) 
 
 (i) In fog, mist, falling snow, or heavy rain storms drift-net vessels attached 
 to their nets, and vessels when trawling, dredging, or fishing with any kind 
 of a drag net, and vessels line fishing with their lines out, shall, if of twenty 
 tons gross tonnage or upward, respectively, at intervals of not more than one 
 minute make a blast; if steam vessels, with the whistle or siren, and if sailing 
 vessels, with the fog-horn, each blast to be followed by ringing the bell. Fish- 
 ing vessels and boats of less than twenty tons gross tonnage shall not be obliged 
 to give the above-mentioned signals; but if they do not, they shall make some 
 other efficient sound signal at intervals of not more than one minute. 
 
 (k) All vessels or boats fishing with nets or lines or trawls, when under way, 
 shall in daytime indicate their occupation to an approaching vessel by dis- 
 playing a basket or other efficient signal where it can best be seen. If vessels 
 or boats at anchor have their gear out, they shall, on the approach of other 
 vessels, show the same signal on the side on which those vessels can pass. 
 
 The vessels required by this article to carry or show the lights herein- 
 before specified shall not be obliged to carry the lights prescribed by article 
 four (a) and the last paragraph of article eleven. — (26 Stat., 323-324, chap. 802; 
 28 Stat., 83, chap. 83; 34 Stat., 850-852, chap. 300.) 
 
 The original article 9 of this act was expressly 
 repealed by act of May 28, 1894 (28 Stat., 
 83); and the article given above was ex- 
 
 pressly inserted in the original act of August 
 19, 1890, as article 9 thereof, by act of 
 January 19, 1907 (34 Stat., 850-852). 
 
 Art. 10. A vessel which is being overtaken by another shall show from 
 her stern to such last-mentioned vessel a white light or a flare-up light. 
 
 The white light required to be shown by this article may be fixed and 
 carried in a lantern, but in such case the lantern shall be so constructed, fitted, 
 and screened that it shall throw an unbroken light over an arc of the horizon of 
 twelve points of the compass, namely, for six points from right aft on each side 
 of the vessel so as to be visible at a distance of at least one mile. Such light 
 shall be carried as nearly as practicable on the same level as the side-lights. 
 (26 Stat., 324, chap. 802.) 
 
 Art. 11. a vessel under one hundred and fifty feet in length, when at 
 anchor, shall carry forward, where it can best be seen, but at a height not 
 exceeding twenty feet above the hull, a white light in a lantern so constructed 
 as to show a clear, uniform, and unbroken light visible all around the horizon 
 at a distance of at least one mile. 
 
 1210 
 
Navigation. Ft. 3. STATUTES AT LARGE. Aug. 19, 1890. 
 
 A vessel of one hundred and fifty feet or upwards in length, when at 
 anchor, shall carry in the forward part of the vessel, at a height of not less than 
 twenty and not exceeding forty feet above the hull, one such light, and at 
 or near the stern of the vessel, and at such a height that it shall be not less 
 than fifteen feet lower than the forward light, another such light. 
 
 The length of a vessel shall be deemed to be the length appearing in her 
 certificate of registry. 
 
 A vessel aground in or near a fair-way shall carry the above light or lights 
 and the two red lights prescribed by article four (a). — (26 Stat., 324-325, 
 chap. 802.) 
 
 Art. 12. Every vessel may, if necessary in order to attract attention, in 
 addition to the lights which she is by these rules r3C{uired to carry, show a flare- 
 up light or use any detonating signal that can not be mistaken for a distress 
 signal— (26 Stat., 325, chap. 802.) 
 
 Art. 13. Nothing in these rules shall interfere with the operation of any 
 special rules made by the Government of any nation with respect to additional 
 station and signal-lights for two or more ships of war or for vessels sailing under 
 convoy, or with the exhibition of recognition signals adopted by ship owners, 
 which have been authorized by their respective Governments and duly regis- 
 tered and published.— (26 Stat., 325, chap. 802.) 
 
 Art. 14. A steam-vessel proceeding under sail only but havmg her funnel 
 up, shall carry in day-time, forward, where it can best be seen, one black ball 
 or shape two feet in diameter. — (26 Stat., 325, chap. 802.) 
 
 SOUND SIGNALS FOR FOG, AND SO FORTH. 
 
 Art. 15. All signals prescribed by this article for vessels under way shall 
 be given: 
 
 First. By "steam vessels" on the whistle or siren. 
 
 Second. By "sailing vessels" and "vessels towed" on the fog horn. 
 
 The words "prolonged blast" used in this article shall mean a blast of 
 from four to six seconds duration. 
 
 A steam vessel shall be provided with an efficient whistle or siren, sounded 
 by steam or by some substitute for steam, so placed that the sound may not be 
 intercepted by any obstruction, and with an efficient fog horn, to be sounded by 
 mechanical means, and also with an efficient bell. (In all cases where the rules 
 require a bell to be used a drum may be substituted on board Turkish vessels, 
 or a gong where such articles are used on board small seagoing vessels.) A 
 sailing vessel of twenty tons gross tonnage or upward shall be provided with a 
 similar fog horn and bell. 
 
 In fog, mist, falling snow, or heavy rainstorms, whether by day or night, 
 the signals described in this article shall be used as follows, namely : 
 
 (a) A steam vessel having way upon her shall sound, at intervals of not 
 more than two minutes, a prolonged blast. 
 
 (b) A steam vessel under way, but stopped, and having no way upon her, 
 shall sound, at intervals of not more than two minutes, two prolonged blasts, 
 with an interval of about one second between. 
 
 (c) A sailing vessel under way shall sound, at intervals of not more than 
 one minute, when on the starboard tack, one blast; when on the port tack, two 
 
 54641° --22^— 77 1211 
 
Aug. 19, 1890. I't. S. STATUTES AT LARGE. Navigation. 
 
 blasts in succession, and when with the wind abaft the beam, three blasts in 
 succession. 
 
 (d) A vessel when at anchor shall, at intervals of not more than one 
 minute, ring the bell rapidly for about five seconds. 
 
 (e) A vessel when towing, a vessel employed in laying or in picking up 
 a telegraph cable, and a vessel under way, which is unable to get out of the way 
 of an approaching vessel through being not under command, or unable to ma- 
 neuver as required by the rules, shall, instead of the signals prescribed in sub- 
 divisions (a) and (c) of this article, at intervals of not more than two minutes, 
 sound three blasts in succession, namely: One prolonged blast followed by two 
 short blasts. A vessel towed may give this signal and she shall not give any 
 other. 
 
 Sailing vessels and boats of less than twenty tons gross tonnage shall not 
 be obliged to give the above-mentioned signals, but, if they do not, they shall 
 make some other efficient sound signal at intervals of not more than one 
 minute.— (26 Stat., 325-326, chap. 802; 29 Stat., 381, chap, 401.) 
 
 This article was expressly amended and reenacted to read as above by act of June 10, 
 1896 (29 Stat., 381). 
 
 SPEED OF SHIPS TO BE MODERATE IN FOG, AND SO FORTH. 
 
 Art. 16. Every vessel shall, in a fog, mist, falling snow, or heavy rain- 
 storms, go at a moderate speed, having careful regard to the existing circum- 
 stances and conditions, 
 
 A steam vessel hearing, apparently forward of her beam, the fog-signal of 
 a vessel the position of which is not ascertained shall, so far as the circum- 
 stances of the case admit, stop her engines, and then navigate with caution 
 until danger of colhsion is over. — (26 Stat., 326, chap. 802.) 
 
 Steering and Sailing Rules. 
 
 PREU^VnNARr RISK OF COLLISION. 
 
 Risk of collision can, when circumstances permit, be ascertained by care- 
 fully watching the compass bearing of an approaching vessel. If the bearing 
 does not appreciably change, such risk should be deemed to exist. 
 
 Art. 17. AVhen two sailing vessels are approaching one another, so as to 
 involve risk of collision, one of them shall keep out of the way of the other, as 
 follows, namely: 
 
 (a) A vessel which is running free shall keep out of the way of a vessel 
 which is close-hauled. 
 
 (b) A vessel which is close-hauled on the port tack shall keep out of the 
 way of a vessel which is close-hauled on the starboard tack. 
 
 (c) When both are running free, with the wind on different sides, the 
 vessel which has the wind on the port side shall keep out of the way of the other. 
 
 (d) When both are running free, with the wind on the same side, the vessel 
 which is to the windward shall keep out of the way of the vessel which is to 
 leeward. 
 
 (e) A vessel which has the wind aft shall keep out of the way of the other 
 vessel.— (26 Stat., 326, chap. 802.) 
 
 1212 
 
Navigation. Pt. 3. STATUTES AT LARGE. Aug. 19, 1890. 
 
 Art. 18. When, two steam-vessels are meeting end on, or nearly end on, 
 so as to involve the risk of collision, each shall alter her course to starboard, 
 so that each may pass on the port side of the other. 
 
 This article only applies to cases where vessels are meeting end on, or 
 nearly end on, in such a manner as to involve risk of collision, and does not 
 apply to two vessels which must, if both keep on their respective courses, pass 
 clear of each other. 
 
 The only cases to which it does apply are when each of the two vessels is 
 end on, or nearly end on, to the other; in other words, to cases in which, by day, 
 each vessel sees the masts of the other in a line, or nearly in a line, with her owti; 
 and by night, to cases in which each vessel is in such a position as to see both 
 the side lights of the other. 
 
 It does not apply by day to cases in wliich a vessel sees another ahead 
 crossing her own course ; or by night, to cases where the red light of one vessel 
 is opposed to the red light of the other, or where the green light of one vessel is 
 opposed to the green light of the other, or where a red light %vitliout a green 
 light, or a green light without a red light, is seen ahead, or where both green and 
 red lights are seen anywhere but ahead. — (26 Stat., 326-327, chap. 802.) 
 
 Art. 19. When two steam-vessels are crossing, so as to involve risk of 
 collision, the vessel which has the other on her o^vn starboard side shall keep 
 out of the way of the other.— (26 Stat., 327, chap. 802.) 
 
 Art. 20. When a steam-vessel and a sailing vessel are proceeding in such 
 directions as to involve risk of collision, the steam-vessel shall keep out of the 
 way of the sailing-vessel. — (26 Stat., 327, chap. 802.) 
 
 Article twenty-one. Where, by any of these rules, one of two vessels is 
 to keep out of the way the other shall keep her course and speed. 
 
 Note. — When, in consequence of thick weather or other causes, such vessel 
 finds herseK so close that collision can not be avoided bv the action of the givinor- 
 wa}' vessel alone^ she also shall take such action as will best aid to avert col- 
 lision. (See articles twenty-seven and twenty-nine.) — (26 Stat., 327, chap. 802; 
 28 Stat., 83, chap. 83.) 
 
 This article was expressly amended and reenacted to read as above by act of May 28, 1894 
 (28 Stat., 83). 
 
 Art. 22. Every vessel which is directed by these rules to keep out of the 
 way of another vessel shall, if the circumstances of the case admit, avoid 
 crossing ahead of the other. — (26 Stat., 327, chap. 802.) 
 
 Art. 23. Every steam-vessel which is directed by these rules to keep out of 
 the way of another vessel shall, on approaching her, if necessary, slacken her 
 speed or stop or reverse. — (26 Stat., 327, chap. 802.) 
 
 Art. 24. Notwithstanding anything contained in these rules every vessel, 
 overtaking any other, shall keep out of the way of the overtaken vessel. 
 
 Every vessel coming up with another vessel from any direction more than 
 two points abaft her beam, that is in such a position, with reference to the 
 vessel which she is overtaking that at night she would be unable to see either 
 of that vessel's side-lights, shall be deemed to be an overtaking vessel; and no 
 subsequent alteration of the bearing between the two vessels shall make the 
 overtaking vessel a crossing vessel within the meaning of these rules, or relieve 
 
 1213 
 
Aug. 19, 1890. Pt. .i. STATUTES AT LARGE. Navigation. 
 
 her of the duty of keeping dear of llio overtaken vessel until she is finally 
 passed and elear. 
 
 As by day tlie overtaking vessel can not always know with certainty 
 whether she is forward of or abaft this direction from the other vessel she 
 should, if in doubt, assume that she is an overtaking vessel and keep out of 
 th(> way.— (26 Stat., 327, chap. 802.) 
 
 Art. 25. In narrow channels every steam-vessel shall, when it is safe and 
 practicable, keep to that side of the fair-way or mid-channel which lies on the 
 starboard side of such vessel. — (26 Stat., 327, chap. 802.) 
 
 Art. 26. Sailing vessels under way shall keep out of the way of sailing 
 vessels or boats fishing with nets, or lines, or trawds. This rule shall not give 
 to any vessel or boat engaged in fishing the right of obstructing a fair-way used 
 by vessels other than fishing vessels or boats. — (26 Stat., 327, chap. 802.) 
 
 Art. 27. In obeying and construing these rules due regard shall be had to 
 all dangers of navigation and collision, and to any special circumstances which 
 may render a departure from the above rules necessary in order to avoid 
 immediate danger.— (26 Stat., 327, chap. 802.) 
 
 SOUND-SIGNALS FOR VESSELS IN SIGHT OF ONE ANOTHER. 
 
 Art. 28. The words ''short blast" used in this article shall mean a blast 
 
 of about one second's duration. 
 
 \^Tlen vessels are in sight of one another, a steam-vessel under way, in 
 
 taking any course authorized or required by these rules, shall indicate that 
 
 course by the following signals on her whistle or siren, namely: 
 
 One short blast to mean, "I am directing my course to starboard." 
 
 Two short blasts to mean, "I am directing my course to port." 
 
 Three short blasts to mean, "My engines are going at full speed astern." — 
 
 (26 Stat., 328, chap. 802.) 
 
 XO VESSEL, UNDER ANY CIRCUMSTANCES, TO NEGLECT PROPER PRECAUTIONS. 
 
 Art. 29. Nothing in these rules shall exonerate any vessel or the owner 
 or master or crew thereof, from the consequences of any neglect to carry lights 
 or signals, or of any neglect to keep a proper look-out, or of the neglect of any 
 precaution which may be required by the ordinary practice of seamen, or by 
 the special circumstances of the case. — (26 Stat., 328, chap. 802.) 
 
 RESERVATION OF RULES FOR HARBORS AND INLAND NAVIGATION. 
 
 Art. 30. Nothing in these rules shall interfere with the operation of a 
 special rule, duly made by local authority, relative to the navigation of any 
 harbor, river, or inland waters. — (26 Stat., 328, chap. 802.) 
 
 DISTRESS SIGNALS. 
 
 Article thirty-one. When a vessel is in distress and requires assistance from 
 other vessels or from the shore the following shall be the signals to be used or 
 displayed by her, either together or separately, namely : 
 In the daytime — • 
 
 First. A gun or other explosive signal fired at intervals of about a minute. 
 
 Second. The international code signal of distress indicated by N C. 
 
 1214 
 
Pt. 3. STATUTES AT LARGE. Sept. 4, 1890. 
 
 Third. The distance signal, consisting of a square flag, having either above 
 or below it a ball or anything resembling a ball. 
 
 Fourth. A continuous sounding with any fog-signal apparatus. 
 
 At night — 
 
 First. A gun or other explosive signal fired at intervals of about a minute. 
 
 Second. Flames on the vessel (as from a burning tar barrel, oil barrel, 
 and so forth). 
 
 Third. Rockets or shells throwing stars of any color or description, fired 
 one at a time, at short intervals. 
 
 Fourth. A continuous sounding with any fog-signal apparatus. — (26 Stat., 
 328, chap. 802; 28 Stat., 83, chap. 83.) 
 
 This article was expressly amended and reenacted to read as above by act of May 28, 1894 
 (28 Stat., 83). 
 
 [1890, Aug. 29. Chief clerks to administer oaths of office.] And the Chief 
 Clerks of the several Executive Departments and of the various bureaus and 
 offices thereof in Washington, District of Columbia, are hereby authorized and 
 directed, on application and without compensation therefor, to administer 
 oaths of office to employees required to be taken on their appointment or 
 promotion. — (26 Stat., 371, chap. 820.) 
 
 See section 183, Re\dsed Statutes, and note thereto. 
 
 [1890, Aug-. 30. Subsistence of officers detailed to Coast and Geodetic 
 Survey.] Xor shall there hereafter be made any allowance for subsistence to 
 officers of the Navy attached to the Coast and Geodetic Survey, except that 
 when officers are detached to do work away from their vessels under circum- 
 stances involving them in extra expenditures, the Superintendent may allow 
 to any such officer subsistence at a rate not exceeding one dollar per day for the 
 period actually covered by such duty away from such vessel. — (26 Stat., 382, 
 chap. 837.) 
 
 See sections 264 and 4688, Revised Statutes, and notes thereto. 
 
 [1890, Aug. 30, sec. 4. Quarterly accounts to be rendered; exceptions.] 
 That hereafter all disbursing officers of the United States shall render their 
 accounts quarterly; and the Secretary of the Senate shall render his accounts 
 as heretofore; but the Secretary of the Treasury may direct any or all such 
 accounts to be rendered more frequently when in his judgment the pubhc 
 interests may require, — (26 Stat. 413, chap. 837.) 
 
 See section 3622, Revised StatTites, and note thereto. 
 
 [1890, Sept. 4. Collisions; duty of master; penalty.] That in every case 
 of collision between two vessels it shall be the duty of the master or person in 
 charge of each vessel, if and so far as he can do so without serious danger to 
 his own vessel, crew, and passengers (if any), to stay by the other vessel until 
 he has ascertained that she has no need of further assistance, and to render to 
 the other vessel, her master, crew, and passengers (if any) such assistance 
 as may be practicable and as may be necessary in order to save them from 
 any danger caused by the collision, and also to give to the master or person 
 in charge of the other vessel the name of his own vessel and her port of registry, 
 or the port or place to which she belongs, and also the name of the ports and 
 
 1215 
 
Mar. 3, 1891. 
 
 Pt. S. STATUTES AT LARGE. 
 
 places from wiiicli aiul to which sho is hound. 11' he fails so to do, and no 
 reasonahle cause for such failure is shown, the collision shall, in the absence 
 of proof to the contrary, be deemed to have been caused by his wrongful act, 
 neglect, or default. 
 
 Sec. 2. That every master or person in charge of a United States vessel who 
 fails, without reasonable cause, to render such assistance or give such informa- 
 tion as aforesaid shall be deemed guilt}^ of a misdemeanor, and shall be liable 
 to a penalty of one thousand dollars, or imprisonment for a term not exceeding 
 two years; and for the above sum the vessel shall be liable and may be seized 
 and proceeded against by process in any district court of the Unitixl States 
 by any person; one-half such sum to be payable to the informer and the other 
 half to the United States.— (26 Stat., 425, chap. 875.) 
 
 [1890, Sept. 25. Badges, military societies.] That the distinctive badges 
 adopted by military societies of men who served in the armies and navies of 
 the United States in the war of the Revolution, the war of eighteen hundred 
 and twelve, the Mexican war, and the war of the rebellion respectively, may be 
 worn upon all occasions of ceremony by officers and enlisted men of the Army 
 and Navy of the United States, who are members of said organizations in 
 their own right.— (26 Stat., 681, Res. No. 50.) 
 
 See note to section 1407, Revised Statutes. 
 
 [1891, Mar. 2. Purchase and issue of naval supplies.] All supplies here- 
 after purchased wdth moneys appropriated for any branch of the naval estab- 
 lisliment shall be purchased, classified, and issued for consumption or use 
 subject to the provisions contained in the act making appropriations for the 
 naval service, approved June thirtieth, eighteen hundred and ninety, in refer- 
 ence to supplies therein provided for and on hand. — (26 Stat., 807, chap. 494.) 
 
 The provisions contained in the act of June 
 30, 1890 (26 Stat., 205), referred to above, 
 are as follows : "All supplies purchased with 
 moneys appropriated by this act shall be 
 deemed to be purchased for the Navy 
 and not for any bureau thereof, and 
 these supplies, together with all supplies 
 now on hand, sliall be arranged, classified, 
 consolidated, and catalogued, and issued 
 for consumption or use, under such regu- 
 
 [1891, Mar. 3, sec. 4. Ocean mail vessels, construction of, approval by 
 Secretary of the Navy.] That all steam-ships of the first, second, and third 
 classes employed as above and hereafter built shall be constructed with par- 
 ticular reference to prompt and economical conversion into auxiliary naval 
 cruisers, and according to plans and specifications to be agreed upon by and 
 between the owners and the Secretary of the Navy, and they shall be of 
 sufficient strength and stability to carry and sustain the working and operation 
 of at least four effective rifled cannon of a caliber of not less than six inches, 
 and shall be of the higliest rating knowTi to maritime commerce. And all vessels 
 of said tliree classes heretofore built and so employed shall, before they are 
 accepted for the mail service herein provided for, be thorouglily inspected 
 by a competent naval officer or constructor detailed for that service by the 
 Secretary of the Navy; and such officer shall report, in writing, to the Secre- 
 tary of the Navy, who shall transmit said report to the Postmaster-General; 
 
 lations as the Secretary may prescribe, 
 without regard to the bureau for which 
 they were purchased." 
 See act of March 2. 1889 (25 Stat., 818), and 
 sections 418, 3676, 3689, and 3718, Re- 
 vised Statutes, and notes to said act 
 and sections; see also act of March 4, 
 1911 (.36 Stat., 1279), and note thereto, 
 as to naval supply account. 
 
 1216 
 
Pt. 3. STATUTES AT LARGE. Mar. 3, 1891. 
 
 and no such vessel not approved by the Secretary of the Navy as suitable for 
 the service requu'ed shall be emploj^ed by the Postmaster-General as pro- 
 vided for in this act.— (26 Stat., 831-832, chap. 519.) 
 
 See note to section 388, Re\ised Statutes; and see act of June 5, 1920 (41 Stat., 988). 
 
 [1891, Mar. 3, sec. 7. Ocean mail vessels, naval oflBcers serving on.] That 
 ofl&cers of the United States Navy may volunteer for service on said mail 
 vessels, and when accepted by the contractor or contractors may be assigned 
 to such duty by the Secretary of the Navy whenever in his opinion such assign- 
 ment can be made without detriment to the service, and while in said employ- 
 ment they shaU receive furlough pay from the Government, and such other 
 compensation from the contractor or contractors as may be agreed upon by 
 the parties: Provided, That they shall only be required to perform such duties 
 as appertain to the merchant service. — (26 Stat., 832, chap. 519.) 
 
 See sections 1442 and 1557, Re\ised Statutes, as to furlough of naval ofTicers. 
 
 [1891, Mar. 3, sec. 9. Ocean mail vessels, use of as transports or cruisers.] 
 That such steamers may be taken and used by the United States as transports 
 or cruisers, upon pavment to the owners of the fair actual value of the same 
 at the time of the taking, and if there shall be a disagreement as to the fair 
 actual value of the same at the time of the taking, and if there shall be a 
 disagreement as to the fair actual between the United States and the 
 owners, then the same shall be determined by two impartial appraisers, one 
 to be appointed by each of said parties, they at the same time selecting a 
 third, who shall act in said appraisement in case the two shall fail to agree. — 
 (26 Stat., 832, chap. 519.) 
 
 See act of May 10, 1892, section 4 (27 Stat., 28). 
 
 [1891, Mar. 3. Assistant Secretary of the Navy.] For compensation of 
 
 * * * Assistant Secretar}- of the Navy, who shall hereafter perform such 
 duties as may be prescribed by the Secretary of the Navy or required by law, 
 
 * * *.— (26 Stat., 934, chap. 541.) 
 
 See act of July 11, 1890 (26 Stat., 254\ and note to section 415, Re\-ised Statutes. 
 
 [1891, Mar. 3. Artificial limbs; commutation.] Artificial limbs: For 
 furnishing artificial limbs and apparatus, or commutation therefor, * * * 
 and hereafter in case of commutation the money shall be paid directly to the 
 soldier, sailor, or marine, and no fee or compensation shall be allowed or paid 
 to any agent or attorney. — (26 Stat., 979, chap. 542.) 
 
 See note to section 1176, Re\ised Statutes. 
 
 [1891, Mar. 3. Enlistment of indigent boys in Navy.] The register of wUls 
 shall prepare papers in connection with appointment of guardians to enable 
 indigent bo3's to enlist in the United States Navy as provided by law, without 
 making any charge therefor. — (26 Stat., 1063, chap. 546.) 
 
 See note to section 1419, Revised Statutes, 
 and note thereto. 
 
 The above provision is contained in the Dis- 
 trict of Columbia appropriation act, and 
 refers to the Register of "Wills in the 
 District of Columbia. 
 
 [1891, Mar. 3. Pensions not allowed persons in naval service.] That 
 hereafter no pension shall be allowed or paid to any officer, non commissioned 
 
 1217 
 
July 19. 1892. Pt. S. STATUTES AT LARGE. 
 
 ofTuor, or private in the Army, Navy, or Marine Corps of the United States, 
 either on the active or retired list. — (26 Stat., 1082, chap. 548.) 
 
 [1892, Apr. 12. Naval Observatory, facilities allowed students, etc.] The 
 facihties for research and illustration in the following and any other Govern- 
 mental collections now existing or hereafter to be established in the city of 
 Washington for the promotion of knowledge shall be accessible, under such 
 rules and restrictions as the officers in charge of each collection may prescribe, 
 subject to such authority as is now or may hereafter be permitted by law, to 
 the scientific investigators and to students of any institution of higher edu- 
 cation now incorporated or hereafter to be incorporated under the laws of Con- 
 gress or of the District of Columbia, to wit: 
 
 * * * * * * * 
 
 Twelve. Of the Naval Observatory.— (27 Stat., 395, Res. No. 8.) 
 
 See act of March 3, 1901 (31 Stat., 1039). 
 
 [1892, May 10, sec. 4. Merchant vessels, use of as transports or cruisers.] 
 That any steamships so registered imder the provisions of this act may be 
 taken and used by the United States as cruisers or transports upon payment to 
 the o\\Tiers of the fair actual value of the same at the time of the taking, and 
 if there shall be a disagreement as to the fair actual value at the time of taking 
 between the United States and the owners, then the same shall be determined 
 by tw^o impartial appraisers, one to be appointed by each of said parties, who, 
 in case of disagreement, shall select a tlnrd, the award of any two of the three 
 so chosen to be final and conclusive. — (27 Stat., 28, chap. 63.) 
 
 See acts of March 3, 1891, section 9 (26 Stat., 
 832), and September 7, 1916, section 10 
 (39 Stat., 731). 
 
 This section was part of an act providing for 
 American registry of certain foreign-built 
 steamships "now" engaged in freight and 
 passenger business. 
 
 [1892, July 16. Buildings rented in District of Columbia; report to Con- 
 gress.] That hereafter it shall be the duty of the Secretary of the Treasury 
 to cause to be prepared and submitted to Congress each year, in the annual 
 Book of Estimates of Appropriations, a statement of the buildings rented 
 within the District of Columbia for the use of the Government, the purposes 
 for which rented, and the annual rental of each. — (27 Stat., 199, chap. 196.) 
 
 1883 (22 Stat., 552); and notes to sections 
 415, 429, and 430, Revised Statutes. 
 
 See act of May 1, 1913, section 3 (38 Stat., 3); 
 see also acts of March 3, 1877 (19 Stat., 370), 
 August 5, 1882 (22 Stat., 241), and March 3, 
 
 [1892, July 19. Change in name of Bureau.] Bureau of Provisions and 
 Clothing, hereafter to be called Bureau of SuppMes and Accounts. — (27 Stat., 
 243, chap. 206.) 
 
 See section 419, Revised Statutes, and note thereto. 
 
 [1892, July 19. Bureau of Supplies and Accounts; duties.] All laws now in 
 force relating to the Bureau of Provisions and Clothmg shall now and hereafter 
 apply to the Bureau of Supphes and Accounts. — (27 Stat., 245, chap. 206.) 
 
 See section 419, Revised Statutes, and note thereto. 
 
 [1892, July 19. Employment on shore duty.] And the provisions of section 
 two of the naval appro|)riation act ap]>roved March third, eighteen hundred 
 and eighty-three, shall be so modified that liereafter orders of the Secretary of 
 
 1218 
 
Pt. 3. STATUTES AT LARGE. Aug. 1, 1892. 
 
 the Navy employing officers on shore duty shall state that such employment is 
 required by the public interests, but need not state the duration of such serv- 
 ice.— (27 Stat., 245, chap. 206.) 
 
 See act of March 3, 1883, section 2 (22 Stat., 481); and see note to section 1571, Re^dsed 
 Statutes. 
 
 [1892, July 28. Promotions, commissioned officers of Marine Corps.] That 
 hereafter promotions to every grade of commissioned officers in the Marine 
 Corps below the grade of commandant shall be made in the same manner and 
 under the same conditions as now are or may hereafter be prescribed, in pur- 
 suance of law, for commissioned officers of the Army: Provided, That examining 
 boards which may be organized under the provisions of this act to determine 
 the fitness of officers of the Marine Corps for promotion shall in all cases consist 
 of not less than five officers, tliree of whom shall, if practicable, be officers of 
 the Marine Corps, senior to the officer to be examined, and two of whom shall 
 be medical officers of the Navy: Provided J urther, That when not practicable 
 to detail officers of the Marine Corps as members of such examining boards, 
 officers of the line in the Navy shall be so detailed. — (27 Stat., 321, chap. 315.) 
 
 See sections 1599, 1605-1607, Revised Statutes, and notes thereto. 
 
 [1892, Aug. 1. Eight-hour law, Government work.] Section 1. That the 
 service and employment of all laborers and mechanics who are now, or may 
 hereafter, be employed by the Government of the United States or the District 
 of Columbia, or by any contractor or subcontractor, upon a public work of the 
 United States or of the District of Columbia, and of all persons who are now, or 
 may hereafter be, employed by the Government of the United States or the 
 District of Columbia, or any contractor or subcontractor, to perform services 
 similar to those of laborers and mechanics in connection with dredging or rock 
 excavation in any river or harbor of the United States or of the District of 
 Columbia, is hereby limited and restricted to eight hours in any one calendar 
 day; and it shall be unlawful for any officer of the United States Government 
 or of the District of Columbia, or any such contractor or subcontractor whose 
 duty it shall be to employ, direct, or control the services of such laborers or 
 mechanics or of such persons employed to perform services similar to those of 
 laborers and mechanics in connection with dredging or rock excavation in any 
 river or harbor of the United States or of the District of Columbia, to require 
 or permit any such laborer or mechanic or any such person employed to per- 
 form services similar to those of laborers and mechanics in connection with 
 dredging or rock excavation in any river or harbor of the United States or of 
 the District of Columbia, to work more than eight hours in any calendar day, 
 except in case of extraordinary emergency: Provided, That nothing in tliis 
 Act shall apply or be construed to apply to persons employed in connection 
 with dredging or rock excavation in any river or harbor of the United States 
 or of the District of Columbia while not directly operating dredging or rock 
 excavating machinery or tools, nor to persons engaged in construction or repair 
 of levees or revetments necessary for protection against floods or overflows on 
 the navigable rivers of the United States. 
 
 1219 
 
Mar. 3. 1893. Pf. ?. STATUTES AT LARGE. 
 
 VIOLATION OF ACT BY OFFICER OR CONTRACTOR PUNISHABLE. 
 
 Sec. 2. That any ofRcer or agent of the Government of the United States 
 or of the District of Cohimbia, or any contractor or subcontractor whose duty 
 it shall be to employ, direct, or control any laborer or mechanic employed 
 upon a public work of the United States or of the District of Colmnbia, or any 
 person employed to perform services similar to those of laborers and mechanics 
 in connection with dredging or rock excavation in any river or harbor of the 
 United States or of the District of Columbia, who shall intentionally violate any 
 provision of this Act, shall be deemed guilty of a misdemeanor, and for each 
 and every such offense shall, upon conviction, be punished by a fine not to 
 exceed one thousand dollars, or by imprisonment for not more than six months, 
 or by both such fine and imprisonment, in the discretion of the court having 
 jurisdiction thereof. 
 
 EXISTING CONTRACTS NOT AFFECTED BY ACT. 
 
 Sec. 3. That the provisions of this Act shall not be so construed as to in 
 any manner apply to or affect contractors or subcontractors, or to limit the 
 hours of daily service of laborers or mechanics engaged upon a public work of 
 the United States or of the District of Columbia, or persons employed to perform 
 services similar to those of laborers and mechanics in connection with dredging 
 or rock excavation in any river or harbor of the United States or of the District 
 of Columbia, for wliich contracts have been entered into prior to the passing 
 of this Act or may be entered into under the provisions of appropriation Acts 
 approved prior to the passage of this Act. — (27 Stat., 340, chap. 352; 37 Stat., 
 726-727, chap. 106.) 
 
 This act was expressly amended and reenacted 
 
 to read as above by act of March 3, 1913 
 
 (37 Stat., 726-727). 
 See act of June 19, 1912 (37 Stat., 137), which 
 
 prescribed contract provisions relating to 
 
 hours of labor. 
 
 Hours of labor were previously fixed by section 
 
 3738, Revised Statutes. 
 Suspension of eight-hour law in case of national 
 
 emergency: See act March 4, 1917 (39 
 
 Stat., 1192). 
 
 [1893, Mar. 3. Detective agencies, employment of, restricted.] That here- 
 after no employee of the Pinkerton Detective Agency, or similar agency, shall 
 be employed in any Government service or by any officer of the District of 
 Columbia.— (27 Stat., 591, chap. 208.) 
 
 See note to Constitution, fourth amendment, under "Arrest of military offenders." 
 
 [1893, Mar. 3, sec. 3. Draping public buildings in mourning.] That here- 
 after no building owTied, or used for public purposes, by the Government of the 
 United States, shall be draped in mourning and no part of the public fund shall 
 be used for such purpose. — (27 Stat., 715, chap. 211.) 
 
 [1893, Mar. 3, sec. 4. Closing Departments for deceased ex-officials.] That 
 hereafter the Executive Departments of the Government shall not be closed 
 as a mark to the memory of any deceased ex-official of the United States. — 
 (27 Stat., 715, chap. 211.) 
 
 [1893, Mar. 3, sec. 5. Hours of labor; leaves of absence; condition of busi- 
 ness, reports of.] Hereafter it shall be the duty of the heads of the several 
 Executive Departments, in the interest of the public service, to reqtiire of all 
 clerks and other employees, of whatever grade or class, in their respective 
 
 1220 
 
Pt. 3. STATUTES AT LARGE. 
 
 Mar. 3, 1893. 
 
 Departments, not less than seven hours of Labor each day, except Sundays 
 and days declared public holidays by law or Executiye order: Provided, That 
 the heads of the Departments may, by special order, stating the reason, further 
 extend the hours of any clerk or employee in their Departments, respectively ; 
 but in case of an extension it shall be without additional compensation: Pro- 
 vided furtlier, That the head of any Department may grant thirty days' annual 
 leave with pay in any one year to each clerk or employee: And 'provided fur- 
 ther, That where some member of the immediate family of a clerk or employee 
 is afflicted vnih. a contagious disease and requires the care and attendance of 
 such employee, or where his or her presence in the Department would jeopardize 
 the health of fellow-clerks, and in exceptional and meritorious cases, where a 
 clerk or employee is personally ill, and where to limit the annual leave to thirty 
 days in any one calendar year would work peculiar hardship, it may be extended, 
 in the discretion of the head of the Department, with pay, not exceeding thirty 
 days in any one case or in any one calendar year. 
 
 This section shall not be construed to mean that so long as a clerk or employee 
 is borne upon the rolls of the Department in excess of the time herein provided 
 for or granted that he or she shall be entitled to pay during the period of such, 
 excessive absence, but that the pay shall stop upon the expiration of the granted 
 leave. 
 
 Hereafter it shall be the duty of the head of each Executive Department 
 to require monthly reports to be made to him as to the condition of the public 
 business in the several bureaus or offices of his Department at Washington; 
 and in each case where such reports disclose that the public business is in 
 arrears, the head of the Department in. which such arrears exist shall require, 
 as provided herein, an extension of the hours of service to such clerks or employ- 
 ees as may be necessary to bring up such arrears of public business. 
 
 Hereafter it shall be the duty of the head of each Executive Department, 
 or other Government establishment at the seat of government, not under an 
 Executive Department, to make at the expiration of each quarter of the fiscal 
 year a ■s\Titten report to the President as to the condition of the public business 
 in his Executive Department or Government establishment, and whether any 
 branch thereof is in aiTears. — (27 Stat., 715, chap. 211; 30 Stat,, 316-317, 
 chap. 68.) 
 
 This section was expressly amended and re- 
 enacted to read as above by act of March 
 15, 1898 (30 Stat., 316-.317, section 7). 
 Pre^^.ously, the hours of labor and leaves of 
 absence of employees in the Executive 
 Departments had been fixed by act of 
 March 3, 1883, section 4 (22 Stat., 503). 
 See also section 162, Re\ised Statutes, and 
 notes thereto. 
 
 The above section was modified by acts of July 
 7, 1898 (30 Stat., 653), and February 24, 
 1899, section 4 (30 Stat., 890), relating to 
 leaves of absence. 
 
 As to holidays, see notes to sections 162 and 
 
 1545, Revised Statutes. 
 As to leaves of absence, employees at navy 
 
 yards and stations, see note to section 1545, 
 
 Revised Statutes. 
 As to arrears of work, see sections 174-175, Re- 
 
 i-ised Statutes. 
 As to reports required to be made by heads of 
 
 departments, see section 429, Re\ised 
 
 Statutes, and note thereto. 
 
 [1893, Mar. 3. Commencement of pay, officers commissioned from graduates 
 of the Naval Academy.] And every naval cadet or cadet engineer who has 
 heretofore graduated or may hereafter graduate from the Naval Academy, and 
 who has been or may hereafter be commissioned, within six months after such 
 
 1221 
 
Mar. 3, 1893. 
 
 rt. ,?. STATUTES AT LARGE. 
 
 A sliphtlv different provision in the act of Jiih' 
 
 19, 1892 (27 Stat., 236), was superseded by 
 
 this enactment. 
 As to commencement of pay of officers of the 
 
 Navy, see sections 1560 — 1562. Revised 
 
 Statutes, and notes thereto. 
 
 graduation, an officer in the Navy or Marine Corps of the United States, under 
 the laws appointing such graduate to the Navy or Marine Corps, shall be allowed 
 the pay of the grade in which he may be so commissioned from the date he takes 
 rank as stated in his commission to the date of qualification and acceptance of 
 his commission. — (27 Stat., 716, chap. 212.) 
 
 As to change in title of students at the Naval 
 Academy, see note to section 1512, Revised 
 Statutes; and see note to section 1522, Re- 
 vised Statutes, as to cadet engineers. 
 
 As to appointment of ^Taduatesto commissioned 
 grades in the Kavy and Marine Corps, see 
 note to section 1521, Revised Statutes. 
 
 [1893, Mar. 3. Chief of Bureau of Construction and Repair.] Any Naval 
 Constructor having the rank of Captain, Commander or Lieutenant Com- 
 mander shall be eligible as Chief of the Bureau of Construction and Repair. — 
 (27 Stat., 716, chap. 212.) 
 
 See note to section 423, Revised Statutes. 
 
 [1893, Mar. 3. Credits to "Pay miscelleaneous."] Hereafter the accounting 
 officers of the Treasur}^ are hereby authorized to credit appropriation "Pay 
 miscellaneous," with all receipts for interest on the account of the Navy Depart- 
 ment with the London fiscal agents, premiums arising from sales of bills of 
 exchange, and from any appreciation in the value of foreign coin. — (27 Stat., 
 716, chap. 212.) 
 
 [1893, Mar. 3. Fraudulent enlistment.] And fraudulent enlistment, and 
 the receipt of any pay or allowance thereunder, is hereby declared an offense 
 against naval discipline and made punishable by general court-martial, under 
 article twenty- two of the articles for the government of the Navy; but this pro- 
 vision shall not take effect until sixty days after the passage of this act. — 
 (27 Stat., 716, chap. 212.) 
 
 See note to section 1624, article 22, Revised Statutes. 
 
 [1893, Mar. 3. Assistant to chief, Bureau of Navigation.] That an officer 
 of the Navy not below the rank of commander may be detailed as assistant to 
 the Chief of the Bureau of Navigation in the Navy Department, and such 
 officer shall receive the highest pay of his grade, and, in case of the death, 
 resignation, absence, or sickness of the Chief of the Bureau, shall, unless other- 
 wise directed by the President, as provided by section one hundred and seventy- 
 nine of the Revised Statutes, perform the duties of such Chief until his successor 
 is appointed or such absence or sickness shall cease. — (27 Stat., 717, chap. 212.) 
 
 See sections 177-182, and 421, Re^dsed Statutes, and notes thereto. 
 
 [1893, Mar. 3. Purchase of discharge.] In time of peace the President may 
 in his discretion, and under such rules and upon such conditions as he may 
 prescribe, permit any enlisted man to purchase his discharge from the Navy 
 or Marine Corps, the amounts received therefrom to be covered into the 
 Treasury.— (27 Stat., 717, chap. 212.) 
 
 Furlough without pay, under the same condi- 
 tions and in lieu of discharge by purchase, 
 was authorized bv act of August 29, 1916 
 (39 Stat., 580.) 
 
 See note to section 1418, Re\'ised Statutes, as 
 to refund of enlistment boiinty. 
 
 1222 
 
Pt. 3. STATUTES AT LARGE. Mar. 29, 1894. 
 
 [1893, Mar. 3. Gun steel and armor to be advertised for.] That no contract 
 for the purchase of gun steel or armor for the Navy shall hereafter be made 
 until the subject-matter of the same shall have been submitted to pubhc 
 competition by the Department by advertisement. — (27 Stat., 732, chap. 212.) 
 
 The Secretary of the Navy was authorized and 
 directed to pro\'ide for the erection or 
 purchase of a factory for the manufacture 
 of armor for naval vessels, by act of August 
 29, 1916 (39 Stat., 563). 
 
 Identical pro\isions were contained in acts of 
 
 March 2, 1891 (26 Stat., 815), and July 19, 
 
 1892 (27 Stat., 251). 
 See sections 3718 and 3721, ReA-ised Statutes, 
 
 and notes thereto, as to purchases for the 
 
 Navy. 
 
 [1893, Oct. 31. Derelicts, etc., marking and removal of.] That the Presi- 
 dent of the United States be, and he is hereby, authorized to make with the 
 several governments interested in the navigation of the North Atlantic Ocean 
 an international agreement providing for the reporting, marking, and removal 
 of dangerous wrecks, derelicts, and other menaces to navigation in the North 
 Atlantic Ocean outside the coast waters of the respective countries bordering 
 thereon.— (28 Stat., 13, Res. No. 13.) 
 
 See act of ^^larch 3, 1905 (33 Stat., 1164), and see notes to sections 1529 and 1536, ReAdsed 
 
 Statutes. 
 
 [1894, Mar. 29. Property returns.] That instead of forwarding to the 
 accounting officers of the Treasury Department retm^ns of public property 
 entrusted to the possession of officers or agents, the Quartermaster-General, 
 the Commissary-General of Subsistence, the Surgeon-General, the Chief of 
 Engineers, the Chief of Ordnance, the Chief Signal Officer, the Paymaster- 
 General of the Navy, the Commissioner of Indian Affairs, or other like chief 
 officers in any Department, by, through, or under whom stores, supphes, and 
 other pubhc property are received for distribution, or whose duty it is to 
 receive or examine retm^ns of such property, shall certify to the proper account- 
 ing officer of the Treasmy Department, for debiting on the proper account, any 
 charge against any officer or agent intrusted with pubhc property, arising 
 from any loss, accruing by his fault, to the Government as to the property so 
 intrusted to him. 
 
 Sec. 2. That said certificate shall set forth the condition of such officer's 
 or agent's property returns, that it includes all charges made up to its date and 
 not previously certified, that he has had a reasonable opportunity to be heard 
 and has not been reheved of responsibihty; the effect of such certificate, when 
 received, shall be the same as if the facts therein set forth had been ascertained 
 by the accounting officers of the Treasury Department in accoimting. 
 
 Sec. 3. That the manner of making property returns to or in any adminis- 
 trative bureau or department, or of ascertaining liability for property, under 
 existing laws and regulations, shall not be affected by this Act, except as 
 provided in section one ; but in all cases arising as to such property so intrusted 
 the officer or agent shall have an opportunity to reheve himself from liability. 
 
 Sec. 4. That the heads of the several Departments are hereby empowered 
 to make and enforce regulations to carry out the provisions of this Act. 
 
 Sec. 5. That all laws or parts of laws inconsistent with the provisions of 
 this Act are hereby repealed. — (28 Stat., 47, chap. 49.) 
 
 See note to section 236, Re\ised Statutes, under "III. Limitations upon jurisdiction," 
 and note to section 1549, Revised Statutes. 
 
 1223 
 
July 31, 1894. Pt. 3. STATUTES AT LARGE. 
 
 [1894, May 11. Wearing of badges, military societies.] That the dis- 
 tinctive badge adopted by the Regular iVi'my and Navy Union of the United 
 States may be worn, in their own right, upon all puljlic occasions of ceremony 
 by ofhcers and enlisted men of the Ai'my and Navy of the United States who 
 are members of said organization. — (28 Stat., 583, Kes. No. 26.) 
 
 See note to section 1407, Re\'ised Statutes. 
 
 [1894, June 28. Public holidays.] That the first Monday of September 
 in each year, being the day celebrated and knowTi as Labor's Plolida}^, is hereby 
 made a legal public holiday, to all intents and purposes, in the same manner 
 as Christmas, the first day of January, the twenty-second day of February, 
 the thirtieth day of May, and the fourth day of July are now made by law 
 pubhc holidays.— (28 Stat., 96, chap. 118.) 
 
 See note to section 1545, Revised Statutes. 
 
 [1894, July 26. Assistant to Chief, Bureau of Supplies and Accounts.] That 
 an officer of the pay corps of the Navy may be detailed as assistant to the 
 Chief of the Bureau of Supplies and Accounts in the Navy Department, and 
 that such officer shall, in case of the death, resignation, absence, or sickness of 
 the Chief of the Bureau, unless otherwise directed by the President, as provided 
 by section one hundred and seventy-nine of the Revised Statutes, perform the 
 duties of such chief until his successor is appointed or such absence or sickness 
 shall cease. — (28 Stat., 132, chap. 165.) 
 
 See acts of March 3, 1899 (30 Stat., 1038), and 
 February 25, 1903 (32 Stat., 890); see also, 
 sections 177-182, and 421, Revised Stat- 
 utes, and notes thereto. 
 
 The designation of the "Pay Corps" was 
 changed to "Supply Corps" by an act of 
 July 11, 1919 (41 Stat., 147). 
 
 [1894, July 31, sec. 6. Comptroller of the Treasury, to prescribe forms of 
 keeping accounts, etc.] The Comptroller of the Treasury shall, under the 
 direction of the Secretary of the Treasury, prescribe the forms of keeping and 
 rendering all public accounts, except those relating to the postal revenues and 
 expenditures therefrom. — (28 Stat., 206, chap. 174.) 
 
 See sections 236-310, Revised Statutes, and notes thereto. 
 
 [1894, July 31, sec. 7. Auditor for the Navy Department, duties of.] The 
 Auditor for the Navy Department shall receive and examine all accounts of 
 salaries and incidental expenses of the office of the Secretary of the Navy, and 
 of all bureaus and offices under his direction, all accounts relating to the Naval 
 Establishment, Marine Corps, Naval Academy, and to all other business within 
 the jurisdiction of the Department of the Navy, and certify the balances arising 
 thereon to the Division of Bookkeeping and Warrants, and send forthwith a 
 copy of each certificate to the Secretary of the Navy. — (28 Stat., 207, chap. 174.) 
 
 See sections 236-310, Revised Statutes, and notes thereto. 
 
 [1894, July 31, sec. 8. Auditor's settlements conclusive, unless revised by 
 Comptroller.] Tlie balances which may from time to time be certified by the 
 Auditors to the Division of Bookkeeping and Warrants, or to the Postmaster 
 General, upon the settlements of public accounts, shall be final and conclusive 
 upon the Executive Branch of the Government, except that any person whose 
 accounts may have been settled, the head of the Executive Department, or of 
 
 1224 
 
Pt. 3. STATUTES AT LARGE. July 31, 1894. 
 
 the board, commission, or establishment not under the jurisdiction of an 
 Executive Department to which the account pertains, or the Comptroller of 
 the Treasury, may, within a year, obtain a revision of the said accoimt by the 
 Comptroller of the Treasury, whose decision upon such revision shall be final 
 and conclusive upon the Executive Branch of the Government: Provided, That 
 the Secretary of the Treasury may, when in his judgment the interests of the 
 Government require it, suspend payment and direct the re-examination of any 
 account.^ — (28 Stat., 207, chap. 174.) 
 
 See sections 236-310, Revised Statutes, and notes thereto. 
 
 [1894, July 31, sec. 8. Effect of accepting payment; suspension of items in 
 accounts.] Any person accepting payment under a settlement by an Auditor 
 shall be thereby precluded from obtaining a revision of such settlement as to 
 any items upon which payment is accepted; but nothing in this Act shall pre- 
 vent an Auditor from suspending items in an account in order to obtain further 
 evidence or explanations necessary to their settlement. When suspended 
 items are finally settled a revision may be had as in the case of the original 
 settlement. Action upon any account or business shall not be delayed awaiting 
 applications for revision: Provided, That the Secretary of the Treasury shall 
 make regulations fixing the time which shall expire before a warrant is issued 
 in payment of an account certified as provided in sections seven and eight of 
 this Act.— (28 Stat., 208, chap. 174.) 
 
 See sections 236-310, Revised Statutes, and notes thereto. 
 
 [1894, July 31, sec. 8. Auditors to submit decisions to Comptroller for 
 approval, etc.] All decisions by Auditors making an original construction or 
 modifying an existing construction of statutes shall be forthwith reported to 
 the Comptroller of the Treasury, and items in any account affected by such 
 decisions shall be suspended and payment thereof witliheld until the Comp- 
 troller of the Treasury shall approve, disapprove, or modify such decisions and 
 certify his actions to the Auditor. All decisions made by the Comptroller of 
 the Treasury under this Act shall be forthwith transmitted to the Auditor or 
 Auditors whose duties are affected thereby. — (28 Stat., 208, chap. 174.) 
 
 [1894, July 31, sec. 8. Advance decisions of Comptroller; effect of.] Dis- 
 bursing officers, or the head of any Executive Department, or other establish- 
 ment not under any of the Executive Departments, may apply for and the 
 Comptroller of the Treasury shall render his decision upon any question involv- 
 ing a payment to be made by them or under them, which decision, when rendered, 
 shall govern the Auditor and the Comptroller of the Treasury in passing upon 
 the account containing said disbursement. — (28 Stat., 208, chap. 174.) 
 
 See notes to sections 236, 285, 286, and 356, Revised Statutes. 
 
 [1894, July 31, sec. 11. Requisitions for advances of money.] Every 
 requisition for an advance of money, before being acted on by the Secretary of 
 the Treasury, shall be sent to the proper Auditor for action thereon as required 
 by section twelve of this act. — (28 Stat., 209, chap. 174.) 
 
 [1894, July 31, sec. 12. Time for rendering- accounts; delinquency; requisi- 
 tions for advances disapproved.] All montlily accounts shall be mailed or 
 otherwise sent to the proper officer at Washington within ten days after the 
 end of the month to which they relate, and quarterly and othef accounts within 
 
 1225 
 
July 31, 1894. Pt. 3. STATUTES AT LARGE. 
 
 twenty days aft^r the period to which they relate, and shall be transmitted to 
 and received by the Auditors within twenty days of their actual receipt at the 
 proper office in Washington in the case of monthly, and sixty days in the case 
 of quarterly and other accounts. Should there be any delinquency in this 
 regard at the time of the receipt by the Auditor of a requisition for an advance 
 of money, he shall disapprove the requisition, which he may also do for other 
 reasons arising out of the condition of the officer's accounts for whom the ad- 
 vance is requested ; but the Secretary of the Treasury may overrule the Audi- 
 tor's decision as to the sufficiency of these latter reasons: Provided, That the 
 Secretary of the Treasury shall prescribe suitable rules and regulations, and 
 maj' make orders in particular cases, relaxing the requirement of mailing or 
 otherwise sending accounts, as aforesaid, within ten or twenty days, or waiving 
 delinquency, in such cases only in which there is, or is likely to be, a manifest 
 physical difficulty in complying with the same, it being the purpose of this 
 provision to require the prompt rendition of accomits without regard to the 
 mere convenience of the officers, and to forbid the advance of money to those 
 delinquent in rendering them. — (28 Stat., 209, chap. 174.) 
 See section 3622, ReATsed Statutes, and note thereto. 
 
 [1894, July 31, sec. 12. Delay by administrative department in forwarding 
 accounts ; effect on requisitions.] That should there be a delay by the adminis- 
 trative Departments beyond the aforesaid twenty or sixty days in transmitting 
 accounts, an order of the President, or, in the event of the absence from the 
 seat of Government or sickness of the President, an order of the Secretary of 
 the Treasury, in the particular case, shall be necessary to authorize the advance 
 of money requested.— (28 Stat., 209, chap. 174; 28 Stat., 807, chap. 177.) 
 
 This clause was expressly amended and reen- 
 acted to read as above by act of Mai'ch 2, 
 1895, section 4 (28 Stat., 807.) 
 
 By section 3622, Re\'ised Statutes, accounts of 
 Navy dLsbm-sing officers are to be rendered 
 to the accounting officers direct. 
 
 [1894, July 31, sec. 12. Report of delinquency to be made to Congress.] 
 The Secretary of the Treasury shall, on the first JVlonda}" of January in each 
 year, make report to Congress of such officers and administrative departments 
 and offices of the Government as were, respectively, at any time during the 
 last preceding fiscal year delinquent in rendering or transmitting accounts to 
 the proper offices in Washington and the cause therefor, and in each case indi- 
 cating whether the delinquency was waived, together with such officers, includ- 
 ing postmasters and officers of the Post Office Department, as were found upon 
 final settlement of their accounts to have been indebted to the Government, 
 with the amount of such indebtedness in each case, and who, at the date of 
 making report, had failed to pay the same into the Treasury of the United 
 States.— (28 Stat., 209, chap. 174; 29 Stat., 179, chap. 252.) 
 
 This provision was expressly amended and reen- 
 acted to read as above by act of May 28, 
 1896, section 4 (29 Stat., 179). 
 
 [1894, July 31, sec. 14. Claims not administratively examined.] In the 
 case of claims presented to an Auditor wliich have not had an administrative 
 examination, the Auditor shall cause them to be examined by two of his sub- 
 ordinates independently of each other. — (28 Stat., 210, chap. 174.) 
 
 See section 3622, Revised Statutes, excepting accounts of Navy disbursing officers from 
 administrative examination. 
 
 122Q 
 
 See notes to sections 176, 236-310, and 1376, Re- 
 vised Statutes. 
 
Pt. 3. STATUTES AT LARGE. Aug. 13, 1894. 
 
 [1894, July 31, sec. 22. Reg-ulations requiring administrative examination 
 of accounts.] It shall also be the duty of the heads of the several Executive 
 Departments and of the proper officers of other Government establishments, 
 not within the jurisdiction of any Executive Department, to make appropriate 
 rules and regulations to secure a proper administrative examination of all 
 accounts sent to them, as required by section twelve of this Act, before their 
 transmission to the Auditors, and for the execution of other requirements of 
 this Act in so far as the same relate to the several Departments or establish- 
 ments.— (28 Stat., 211, chap. 174.) 
 
 ined by and through the administrative 
 heads of di\dsions and biu-eaus in the execu- 
 tive departments and not by the disbursing 
 clerks of said departments, except those 
 vouchers heretofore prepared outside of 
 Washington may continue to be so prepared 
 and the disbursing officers shall make only 
 such examination of vouchers as may be 
 necessary to ascertain whether they repre- 
 sent legal claims against the United 
 States." 
 
 See section 3622, Revised Statutes, excepting 
 accounts of Navy disbursing officers from 
 administrative examination. 
 
 By act of August 23, 1912 (37 Stat., 375), it was 
 pro\dded that "Hereafter the administra- 
 tive examination of all public accounts, pre- 
 liminary to their audit by the accounting 
 officers of the Treasury, shall be made as 
 contemplated by the so-called Dockery 
 Act, approved July thirty-first, eighteen 
 hundred and ninety-four, and all vouchers 
 and pay rolls shall be prepared and exam- 
 
 [1894, Aug. 13. Contractors on public works, protection of laborers and 
 material men.] That hereafter any person or persons entering into a formal 
 contract with the United States for the construction of any public building, 
 or the prosecution and completion of any public work, or for repau-s upon any 
 public building or public work, shall be required, before commencing such 
 work, to execute the usual penal bond, with good and sufficient sureties, with 
 the additional obligation that such contractor or contractors shall promptly 
 make payments to all persons supplying him or them with labor and materials 
 in the prosecution of the work provided for in such contract; and any person, 
 company, or corporation who has furnished labor or materials used in the 
 construction or repair of any public building or public work, and payment for 
 which has not been made, shall have the right to intervene and be made a 
 party to any action instituted by the United States on the bond of the con- 
 tractor, and to have their rights and claims adjudicated in such action and 
 judgment rendered thereon, subject, however, to the priority of the claim and 
 judgment of the United States. If the full amount of the liability of the 
 surety on said bond is insufficient to pay the full amount of said claims and 
 demands, then, after paying the full amount due the United States, the re- 
 mainder shall be distributed pro rata among said interveners. If no suit 
 should be brought by the United States witliin six months from the comple- 
 tion and final settlement of said contract, then the person or persons supplying 
 the contractor with labor and materials shall, upon application therefor, and 
 furnishing affidavit to the Department under the direction of wliich said work 
 has been prosecuted that labor or materials for the prosecution of such work 
 has been supplied by him or them, and payment for wliich has not been made, 
 be furnished with a certified copy of said contract and bond, upon which he 
 or they shall have a right of action, and shall be, and are hereby, authorized 
 to bring suit in the name of the United States in the circuit court of the United 
 States in the district in wliich said contract was to be performed and executed, 
 irrespective of the amount in controversy in such suit, and not elsewhere, for 
 
 54641°— 22 78 1227 
 
Aug. 13. 1894. Pt. 3. STATUTES AT LARGE. 
 
 hi.s or their use and benefit, ao;ainst said contractor and his sureties, and to 
 prosecute the same to final judgment and execution: Provided, That where 
 suit is instituted by any of such creditors on the bond of the contractor it 
 shall not be commenced mitil after the complete performance of said contract 
 and final settlement thereof, and shall be commenced wnthin one year after 
 the performance and final settlement of said contract, and not later: And 
 provided further, That where suit is so instituted by a creditor or by creditors, 
 only one action shall be brought, and any creditor may file his claim in such 
 action and be made party thereto within one year from the completion of the 
 work under said contract, and not later. If the recovery on the bond should 
 be inadequate to pay the amounts found due to all of said creditors, judgment 
 shall be given to each creditor pro rata of the amount of the recovery. The 
 surety on said bond may pay into court, for distribution among said claimants 
 and creditors, the full amount of the sureties' liability, to wit, the penalty 
 named in the bond, less any amount which said surety may have had to pay 
 to the United States by reason of the execution of said bond, and upon so doing 
 the surety will be reheved from f mother liabihty: Provided further, That in all 
 suits instituted under the provisions of this Act such personal notice of the 
 pendency of such suits, informing them of their right to intervene as the com't 
 may order, shall be given to all known creditors, and in addition thereto notice 
 of pubhcation in some newspaper of general circulation, published in the State 
 or town where the contract is being performed, for at least three successive 
 weeks, the last publication to be at least three months before the time limited 
 therefor.— (28 Stat., 278, chap. 280; 33 Stat., 811-812, chap. 778.) 
 
 to acceptance of Liberty or other United 
 States bonds; and see note to section 1383, 
 Revised Statutes, on general subject of 
 bonds. 
 
 This act was expressly amended and reenacted 
 to read as above by act of Februaiy 24, 1905 
 (33 Stat., 811-812) ; see also act of February 
 24, 1919, section_1320 (40 Stat., 1148), for 
 further modification of this act with respect 
 
 [1894, Aug-. 13. Bonds, surety companies, when accepted.] That whenever 
 any recognizance, stipulation, bond, or imdertaking conditioned for the faithful 
 performance of any duty, or for doing or refraining from doing anything in 
 such recognizance, stipulation, bond, or undertaking specified, is by the laws 
 of the United States required or permitted to be given with one surety or with 
 two or more sureties, the execution of the same or the guaranteeing of the 
 performance of the condition thereof shall be sufficient when executed or 
 guaranteed solely by a corporation incorporated luider the laws of the United 
 States, or of any State having power to guarantee the fidelity of persons holding 
 positions of public or private trust, and to execute and guarantee bonds and 
 undertakings in judicial proceedings: Provided, That such recognizance, 
 stipulation, bond, or undertaking be approved by the head of department, 
 court, judge, officer, board, or body executive, legislative, or judicial required 
 to approve or accept the same. But no officer or person having the approval 
 of any bond shall exact that it shall be furnished by a guarantee company or 
 by any particular guarantee company. — (28 Stat., 279, chap. 282.) 
 
 Sec. 2. That no such company shall do business under the provisions of 
 this Act beyond the limits of the State or Territory under whose laws it was 
 incorporated and in which its principal office is located, nor beyond the limits 
 
 1228 
 
Pt. 3. STATUTES AT LARGE. Aug. 13, 1894. 
 
 of the District of Columbia, when such company was incorporated under its 
 laws or the laws of the United States and its principal oflice is located in said 
 District, until it shall by a written power of attorney appoint some person 
 residing within the jurisdiction of the court for the judicial district wherein 
 such suretyship is to be undertaken, who shall be a citizen of the State, Terri- 
 tory, or District of Columbia, wherein such court is held, as its agent, upon 
 whom may be served all lawful process against such company, and who shall 
 be authorized to enter an appearance in its behalf. A copy of such power of 
 attorney, duly certified and authenticated, shall be filed with the clerk of the 
 district court of the United States for such district at each place where a term 
 of such court is or may be held, wliich copy, or a certified copy thereof, shall 
 be legal evidence in all controversies arising under this Act. If any such 
 agent shall be removed, resign, or die, become insane, or otherwise incapable 
 of acting, it shall be the duty of such company to appoint another agent in 
 his place as hereinbefore prescribed, and until such appointment shall have 
 been made, or dm-ing the absence of any agent of such company from such 
 district, service of process may be upon the clerk of the court wherein such 
 suit is brought, with like effect as upon an agent appointed by the company. 
 The officer executing such process upon such clerk shall immediately transmit 
 a copy thereof by mail to the company, and state such fact in his retm*n. A 
 judgment, decree, or order of a court entered or made after service of process 
 as aforesaid shall be as valid and binding on such company as if served with 
 process in said district. — (28 Stat., 279, chap. 282.) 
 
 Sec. 3. That every company, before transacting any business under this 
 Act, shall deposit with the Secretary of the Treasury of the United States a 
 copy of its charter or articles of incorporation, and a statement, signed and 
 sworn to by its president and secretary, showing its assets and liabilities. If 
 the said Secretary of the Treasury shall be satisfied that such company has 
 authority under its charter to do the business provided for in this Act, and 
 that it has a paid-up capital of not less than two hundi-ed and fifty thousand 
 dollars, in cash or its eqmvalent, and is able to keep and perform its contracts, 
 he shall grant authority in writing to such company to do business under this 
 Act.— (28 Stat., 279, chap. 282; 36 Stat., 241, chap. 109.) 
 
 This section Avas expressly amended and reenacted to read as above by act of March 23, 1910 
 
 (36 Stat., 241). 
 
 Sec. 4. That every such company shall, in the months of January, April, 
 July, and October of each year, file with the said Secretary of the Treasury 
 a statement, signed and sworn to by its president and secretary, showing its 
 assets and liabilities, as is required by section three of this Act. And the said 
 Secretary of the Treasury shall have the power, and it shall be his duty, to 
 revoke the authority of any such company to transact any new business under 
 this Act whenever in his judgment such company is not solvent or is conduct- 
 ing its business in violation of this Act. He may institute inquiry at any time 
 into the solvency of said company and may require that additional security 
 be given at any time by any principal when he deems such company no longer 
 sufficient security.— (28 Stat., 279-280, chap. 282; 36 Stat., 241, chap. 109.) 
 
 This section was expressly amended and reenacted to read as above by act of March 23, 
 1910 (36 Stat., 241). 
 
 1229 
 
Jan. 12, 1895. Pt. S. STATUTES AT LARGE. Printing and Binding. 
 
 Sec. 5, That any surety company doing business under the provisions 
 of this Act may be sued in respect thereof in any court of the United States 
 which lias now or hereafter may have juris(Uction of actions or suits upon such 
 recognizance, stipulation, bond, or undertaking, in the district in which such 
 recognizance, stipulation, bond, or undertaking was made or guaranteed, or in 
 the district in which the principal office of such company is located. ^Vnd for 
 the piu-poses of this Act such recognizance, stipulation, bond, or undertaking 
 shall be treated as made or guaranteed in the district in which the office is 
 located, to which it is returnable, or in which it is filed, or in the district in 
 which the principal in such recognizance, stipulation, bond, or undertaking 
 resided when it was made or guaranteed. — (28 Stat., 280, chap. 282.) 
 
 Sec. 6. That if any such company shall neglect or refuse to pay any 
 final judgment or decree rendered against it upon any such recognizance, 
 stipulation, bond, or undertaking made or guaranteed by it under the provi- 
 sions of this Act, from wliich no appeal, writ of error, or supersedeas has been 
 taken, for thirty days after the rendition of such judgment or decree, it shall 
 forfeit all right to do business under this Act. — (28 Stat., 280, chap. 282.) 
 
 Sec. 7. That any company wliich shall execute or guarantee any recogniz- 
 ance, stipulation, bond, or undertaking under the provisions of this Act shall 
 be estopped in any proceeding to enforce the liability which it shall have 
 assumed to incur, to deny its corporate power to execute or guarantee such 
 instrument or assume such liability. — (28 Stat., 280, chap. 282.) 
 
 Sec. 8. That any company doing business under the provisions of this 
 Act which shall fail to comply with any of its provisions shall forfeit to the 
 United States for every such failure not less than five hundred dollars nor more 
 than five thousand dollars, to be recovered by suit in the name of the United 
 States in the same courts in which suit may be brought against such company 
 under the provisions of this Act, and such failure shall not affect the validity 
 of any contract entered into by such company.^ (28 Stat., 280, chap. 282.) 
 
 See sections 1383-1385, Revised Statutes, and notes thereto; see also act of February 24, 
 1919, section 1320 (40 Stat., 1148). 
 
 [1895, Jan. 12, sec. 1. Public printing; Joint Congressional Committee.] 
 There shall be a Joint Committee on Printing, consisting of tlu-ee Members of 
 the Senate and three Members of the House of Representatives, who shall have 
 the powers hereinafter stated. — (28 Stat., 601, chap. 23.) 
 
 [1895, Jan. 12, sec. 2. Neglect or delay in printing; estimates required 
 with order to print documents.] Paragraph 1. That the Joint Committee on 
 Printing shall have power to adopt such measures as may be deemed necessary 
 to remedy any neglect or delay in the execution of the public printing and 
 binding. * * *. 
 
 Par. 6. Either House may order the printing of a document not already 
 provided for by existing law, but only when the same shall be accompanied by 
 an estimate from the Public Printer as to the probable cost thereof. Any 
 Executive Department, bureau, board, or independent office of the Govern- 
 ment submitting reports or documents in response to inquiries from Congress 
 shall submit therewith an estimate of the probable cost of printing to the usual 
 nmnber. Nothing in this paragraph relating to estimates shall apply to reports 
 
 1230 
 
Printing and Binding. 
 
 Pt. S. STATUTES AT LARGE. 
 
 Jan. 12, 1895. 
 
 or documents not exceeding fift}^ pages. 
 34 Stat., 1012, 1013, chap. 2284.) 
 
 This section was expressly amended and re- 
 enacted to read as above by act of March 
 1, 1907, section 1 (34 Stat., 1012, 1013). 
 
 Paragraph 1, as above set forth, "was further 
 amended, but •ndthout express reference 
 thereto, by the follo-v\-ing clause in the act 
 of March l", 1919, sectionll (40 Stat., 1270): 
 "The Joint Committee on Printing shall 
 
 (28 Stat., 601, chap, 23; 
 
 have power to adopt and employ such 
 measures as, in its discretion, may be 
 deemed necessary to remedy any neglect, 
 delay, duplication, or waste in the public 
 printing and binding and the distribution 
 of Government publications." See also 
 section 80 of this act, set forth below. 
 
 [1895, Jan. 12, sec. 18. Printing and binding at Government Printing 
 Office; duties of Public Printer.] It shall be the dutv of the Public Printer 
 to purchase all materials and machinery which may be necessary for the 
 Government Printing Office; to take charge of all matter which is to be 
 printed, engraved, lithographed, or bound; to keep an account thereof in the 
 order in which it is received, and to cause the work to be promptly executed; 
 to superintend all printing and binding done at the Government Printing 
 Office, and to see that the sheets or volumes are promptly delivered to the 
 officer who is authorized to receive them. The receipt of such officer shall 
 be a sufficient voucher for their delivery. — (28 Stat., 603, chap. 23.) 
 
 All printing, binding, and blank-book work is 
 required to be done at Government Print- 
 ing Office, udth certain exceptions: See 
 act of March 1, 1919, section 11 (40 Stat., 
 1270); and see section 87 of this act, set 
 forth below. 
 
 Distribution of documents for executive de- 
 partments, etc., is to be done by Public 
 Printer and not by such departments, with 
 certain exceptions: See act of August 23, 
 1912, section 8 (37 Stat., 414). 
 
 Supplies for executive departments, such as 
 
 manifold blanks, forms, filing devices, etc., 
 may be procured by Public Printer: See 
 act of June 28, 1902, section 1 (32 Stat., 
 481). 
 
 Time for furnishing copy for annual reports 
 to Public Printer: See note to section 196, 
 Revised Statutes. 
 
 Restriction in detail of employees of Govern- 
 ment Printing Office to duties not per- 
 taining to work of printing and binding in 
 any department: See act of June 25, 1910, 
 (36 Stat., 770). 
 
 [1895, Jan. 12, sec. 19. Annual report of printing and binding for De- 
 partments.] The Pubhc Printer shall make annual report to Congress, and 
 in it specify the number of copies of each Department report and document 
 printed upon requisition by the head of the Department for which the printing 
 was done, and he shall also specify in said report the exact number of copies 
 of books, giving the titles of the books, bound upon requisition for Senators, 
 Representatives, Delegates, and other officers of the Government and the cost 
 thereof.— (28 Stat., 603, chap. 23.) 
 
 See notes to sections 429-430, Revised Statutes; 
 see also act of June 5, 1920 (41 Stat., 1037), 
 as to reports required to be made to Con- 
 
 gress by heads of departments concerning 
 publications printed, etc. 
 
 [1895, Jan. 12, sec. 22. Annual report of accounts with Departments, detailed 
 statement of work done, etc.] The Public Printer shall, on the first day of 
 each regular session, report to Congress the exact condition and the quantity 
 and cost of all printing, binding, lithographing, and engraving; the quantity 
 and cost of all paper purchased for the same; a detailed statement of all pro- 
 posals and contracts entered into for the purchase of paper and other materials, 
 and for lithographing and engraving; of all payments made, during the pre- 
 ceding year, under his direction; of the quantity of work ordered and done, 
 with a general classification thereof, for each Department, and a detailed state- 
 ment of each account with the Departments or public officers; a classified 
 
 1231 
 
Jan. 12, 1895. Pt. S. STATUTES AT LARGE. Printing and Binding. 
 
 detailed statement of the number of hands employed and the sums paid to each; 
 and such other information touching all matters connected with the Printing 
 Ollico as may be in his possession. — (28 Stat., 604, chap. 23.) 
 
 See note above, under section 19 of this act. 
 
 [1895, Jan. 12, sec. 25. Stereotyping.] The Pubhc Printer shall cause 
 to be stereotyped or electrotyped ail matter when there is a reason to believe 
 that it will be needed a second time. — (28 Stat., 604, chap. 23.) 
 
 [1895, Jan. 12, sec. 27. Estimates submitted by Public Printer.] He 
 shall prepare and submit to the Secretary of the Treasury, annually, in time to 
 have the same embraced in the estimates from that department, detailed esti- 
 mates of the sums which wdl be required for salaries, wages, printing, engrav- 
 ing, lithographing, bmding, materials, and other necessar}^ expenses of said 
 Printing Office for the ensuing fiscal year. — (28 Stat., 604, chap. 23.) 
 
 Soe sections 430 and 3661, Revised Statutes, 
 and acts of March 2, 1895 (28 Stat., 961), 
 and June 30, 1906, section 2 (34 Stat., 762). 
 
 Printing and engra^dng for the Hydrogi-aphic 
 Office are to be estimated for separately 
 and in detail, and appropriated for sepa- 
 rately. (Act Aug. 4, 1886, 24 Stat., 255.) 
 
 [1895, Jan, 12, sec. 42. Printing documents for sale to applicants.] The 
 Public Printer shall furnish to all applicants giving notice before the matter is 
 put to press, not exceeding two hundred and fifty to any one applicant, copies 
 of bills, reports, and documents, said applicants paying in advance the cost of 
 such printing with ten per centum added: Provided, That the printing of such 
 work for private parties shall not interfere with the printing for the Govern- 
 ment.— (28 Stat., 607, chap. 23.) 
 
 See sections 52, 61, and 67 of this act, set forth below. 
 
 [1895, Jan. 12, sec. 51. Style of printing and binding.] The forms and 
 style in which the printing or binding ordered by any of the Departments shall 
 be executed, and the material and the size of type to be used, shall be deter- 
 mined by the Public Printer, having proper regard to economy, workmansliip, 
 and the purposes for which the work is needed. — (28 Stat., 608, chap. 23.) 
 
 See sections 86 and 91 of this act, set forth below. 
 
 [1895, Jan. 12, sec. 52. No Government publication to be copyrighted.] 
 The Public Printer shall sell, under such regulations as the Joint Committee on 
 Printing may prescribe, to any person or persons who may apply additional or 
 duplicate stereotype or electrotype plates from which any Government publi- 
 cation is printed, at a price not to exceed the cost of composition, the metal 
 and making to the Government and ten per centum added: Provided, That the 
 full amount of the price shall be paid when the order is filed: And provided 
 further, That no publication reprinted from such stereotype or electrotype 
 plates and no other Government publication shall be copyrighted. — (28 Stat., 
 608, chap. 23.) 
 
 See sections 42, 61, and 67 of this act as to sale of publications. 
 
 [1895, Jan. 12, sec. 54. "Usual number" of documents.] Wlienever any 
 document or report shall be ordered printed by Congress, such order to print 
 shall signify the ^' usual number" of copies for binding and distribution among 
 those entitled to receive them. No greater number shall be printed unless 
 ordered by either House, or as hereinafter provided. When a special number 
 
 1232 
 
Printing and Binding. Pt. 3. STATUTES AT LARGE. Jan. 12, 1895. 
 
 of a document or report is ordered printed, the usual number shall also be 
 printed, unless akeady ordered. The usual number of documents and reports 
 shall be one thousand six hundred and eighty-two copies, which shall be dis- 
 tributed as follows: * * *.— (28 Stat., 608, chap. 23.) 
 
 See section 73 of this act, and note thereto; see also Joint Resohition of January 15, 1908 
 (35 Stat., 565). 
 
 [1895, Jan. 12, sec. 58. Departmental publications, distribution to libraries.] 
 Whenever printing not bearing a Congressional number shall be done for any 
 department or officer of the Government, except confidential matter, blank 
 forms, and circular letters not of a public character, or shall be done for use of 
 Congressional committees, not of a confidential character, two copies shall be 
 sent, unless withheld by order of the committee, by the Public Printer to the 
 Senate and House Libraries, respectively, and one copy each to the document 
 rooms of the Senate and House, for reference; and these copies shall not be 
 removed; and of all publications of the Executive Departments not intended 
 for their especial use, but made for distribution, five hundred copies shall be at 
 once delivered to the superintendent of documents for distribution to designated 
 depositories and State and Territorial libraries. — (28 Stat., 610, chap. 23.) 
 
 brary of Congress. (See Joint Res., Mar. 2, 
 1901, sec. 3, 31 Stat., 1465). 
 
 Departmental publications printed elsewhere 
 than at Government Printing Office, 62 or 
 more copies shall be suppUed to the Li- 
 
 [1895, Jan. 12, sec. 61. Superintendent of documents; sales by; other 
 duties.] The PubHc Printer shall appoint a competent person to act as superin- 
 tendent of documents, and shall fix his salary. The superintendent of docu- 
 ments so designated and appointed is hereby authorized to sell at cost 
 any public document in his charge, the distribution of which is not herein 
 specifically directed, said cost to be estimated by the Public Printer and based 
 upon printing from stereotyped plates ; but only one copy of any document shall 
 be sold to the same person, excepting libraries or schools by wliich additional 
 copies are deshed for separate departments thereof, and members of Congress; 
 and whenever any officer of the Government having in his charge documents 
 published for sale shall desire to be relieved of the same, he is hereby authorized 
 to turn them over to the superintendent of documents, who shall receive and sell 
 them under the provisions of this section. All moneys received from the sale 
 of documents shall be returned to the Public Printer on the first day of each 
 month and be by him covered into the Treasmy monthly, and the superintend- 
 ent of documents shall report annually the number of copies of each and every 
 document sold by him, and the price of the same. He shall also report monthly 
 to the Public Printer the number of documents received by him and the disposi- 
 tion made of the same. He shall have general supervision of the distribution 
 of all public documents, and to his custody shall be committed all documents 
 subject to distribution, excepting those printed for the special official use of the 
 Executive Departments, which shall be delivered to said Departments, and those 
 printed for the use of the two Houses of Congress, which shall be delivered to the 
 folding rooms of said Houses and distributed or delivered ready for distribution to 
 Members and Delegates upon their order by the superintendents of the folding 
 rooms of the Senate and House of Representatives. — (28 Stat., 610, chap. 23.) 
 
 1233 
 
Jan. 12, 1895. 
 
 rt. S. STATUTES AT LARGE. 
 
 Printing and Binding. 
 
 See sections 42, r)2, and 07 of this act, and Joint 
 Resolution of Nfaich 28, l!K)4 (33 Stat., 584), 
 as to sale of documents. 
 
 See act of August 23, 1912, section 8 (37 Stat., 
 414), as to distribution of departmental 
 documents by Public Printer. 
 
 [1895, Jan. 12, sec. 62. Departmental publications furnished superintendent 
 of documents; index of documents to be published.] The supc'riiitondeiit of 
 dociinioiits shall, at the clo.se of each regular session of Congress, prepare and 
 ])ul)lish a comprehensive index of public documents, beginning with tlie Fifty- 
 tliird Congress, upon sucli plan as shall be approved by the Joint Committee on 
 Printing; and the Public Printer shall, immediately upon its publication, deliver 
 to him a copy of each and every document printed by the Government Printing 
 Office; and the head of each of the Executive Departments, bureaus, and ofFices 
 of the Government shall deliver to him a copy of each and every document issued 
 or published by such Department, bureau, or office not confidential in its char- 
 acter. He shall also prepare and print in one volume a consolidated index of 
 Congressional documents, and shall index such single volumes of documents as 
 the Joint Committee on Printing shall direct. Of the comprehensive index and 
 of the consolidated index two thousand copies each shall be printed and bound 
 in addition to the usual number, two hundred copies for the use of the Senate, 
 eight hundred copies for the use of the House, and one thousand copies for dis- 
 tribution by the superintendent of documents. — (28 Stat., 610-611, chap. 23.) 
 
 See section 69 of this act, set forth below. 
 
 1895, Jan. 12, sec. 67. Disposal of accumulated documents.] All documents 
 at present remaining in charge of the several Executive Departments, bureaus, 
 and offices of the Government not required for official use shall be delivered to 
 the superintendent of documents, and hereafter all public documents accumu- 
 lating in said Departments, bureaus, and offices not needed for official use shall 
 be annually turned over to the superintendent of documents for distribution or 
 sale.— (28 Stat., 611-612, chap. 23.) 
 
 See sections 42, 52, and 61 of this act, as to sale of documents; see also Joint Resolution of 
 March 28, 1904 (33 Stat., 584). 
 
 [1895, Jan. 12, sec. 69. Catalogue of Government publications.] A catalogue 
 of Government publications shall be prepared by the superintendent of docu- 
 ments on the first day of each month, which shall show the documents printed 
 during the preceding month, where obtainable, and the price thereof. Two 
 thousand copies of such catalogue shall be printed in pamplilet form for distribu- 
 tion.— (28 Stat., 612, chap. 23.) 
 
 See section 62 of this act, set forth above. 
 
 [1895, Jan. 12, sec. 73. Extra copies of certain documents to be printed.] 
 Extra copies of documents and reports shall be printed promptly when the 
 same shall be ready for publication, and shall be bound in paper or cloth as 
 directed by the Joint Committee on Printing, and shall be of the number fol- 
 lowing in addition to the usual number: * * *. — (28 Stat., 612, chap. 23.) 
 
 Of the Ephemeris and Nautical Almanac and of the papers supplementary 
 thereto, one thousand five hundred copies; one hundred copies for the Senate, 
 four hundred for the House, and one thousand for distribution or sale by the 
 Navy Department. The five hundred copies printed for Congress and the 
 usual number shall be for the calendar year next following, and those for the 
 
 1234 
 
Printing and Binding. Ft. 3. STATUTES AT LARGE. Jan. 12, 1895. 
 
 Navy Department for the third year following. The Secretary of the Navy is 
 
 also authorized to cause additional copies of the Ephenieris, and of the Nautical 
 
 Almanacs extracted therefrom, to be printed for the public service and for sale 
 
 to navigators and others: Provided, That all moneys received from sales of the 
 
 Ephemeris and of the Nautical Almanacs shall be deposited in the Treasury 
 
 and placed to the credit of the general fund for public printing. — (28 Stat., 
 
 G13, chap. 23.) 
 
 See joint resolution of May 13, 1902 (32 Stat., 740), and act of July 1, 1902 (32 Stat., 678); 
 see also note to section 436, Revised Statutes. 
 
 Of the Observations of the Naval Observatory, one thousand eight hun- 
 dred copies; three hundred for the Senate, seven hundred for the House, and 
 eight hundred for distribution by the Naval Observatory, and of the astro- 
 nomical appendixes to the above observations, one thousand two hundred sep- 
 arate copies, and of the meteorological and magnetic observations one thousand 
 separate copies for distribution by the Naval Observatory. * * *. — (28 Stat., 
 
 613, chap. 23.) 
 
 The Secretary of State shall cause to be edited, printed, published, and 
 distributed pamphlet copies of the statutes of the present and each future 
 session of Congress to the officers and persons hereinafter provided for; said 
 distribution shall be made at the close of every session of Congress, as follows: 
 * * * to the Navy Department, one hundred copies. * * * . — (28 Stat., 
 
 614, chap. 23.) 
 
 After the close of each Congress the Secretary of State shall have edited, 
 printed, and bound a sufficient number of the volumes containing the Statutes 
 at Large enacted by that Congress to enable him to distribute copies, or as 
 many thereof as may be needed, as follows: * * * to the Navy Depart- 
 ment, seventy-five copies. * * *. — (28 Stat., 615, chap. 23.) 
 
 Of the Registers of the Army and Navy, fifteen hundred copies of each; 
 five hundred for the Senate and one thousand for the House. * * *. — (28 
 Stat., 616, chap. 23.) 
 
 There shall be prepared under the direction of the Joint Committee on 
 Printing a Congressional Directory, of which there shall be three editions dur- 
 ing each long session and two editions during each short session of Congress. 
 The first edition shall be distributed to Senators, Representatives, Delegates, 
 the principal officers of Congress, and heads of departments on the first day of 
 the session, and shall be ready for distribution to others within one week there- 
 after. The number and distribution of such Directory shall be under the con- 
 trol of the Joint Committee on Printing. * * *.— (28 Stat., 617, chap. 23.) 
 
 The Public Printer shall furnish the Congressional Record as follows and 
 shall furnish gratuitously no others in addition thereto ; * * * 
 
 To the library of each of the * * *■ Executive Departments, and to 
 the Naval Observatory, * * * one bound copy. * * *. — (28 Stat., 617, 
 618, chap. 23.) 
 
 To enable the officer charged with the duty of preparing the Official 
 Register of the United States to publish the same, the Secretary of the Senate, 
 the Clerk of the House of Representatives, the head of each Executive Depart- 
 ment of the Government, and the chief of each and every bureau, office, com- 
 mission, or institution not embraced in an Executive Department, in connec- 
 
 1235 
 
Jan. 12, 1895. Pt. 3. STATUTES AT LARGE. Printing and Binding. 
 
 tion with which sahiries are paid from the Treasury of the United States, shall, 
 on the first day of July in each year in which a new Congress is to assemble, 
 cause to be filed -with the Secretary of tlie Interior a full and complete list of 
 all oflicers, agents, clerks, and other employees of said Department, bureau, 
 office, commission, or institution connected with the legislative, executive, or 
 ju(Ucial service of the Government, or paid from the United States Treasury, 
 incluiUng military and naval officers of the United States, cadets, and mid- 
 shipmen. 
 
 Said lists shall exhibit the salary, compensation, and emoluments allowed 
 to each of said officers, agents, clerks, and other employees, the State or country 
 in which he was born, the State or Territory and Congressional district and county 
 of which he is a resident and from which he was appointed to office, and where 
 employed. 
 
 A list of the names, force, and condition of all ships and vessels belonging 
 to the United States, and when and where built, shall also be filed with the 
 Secretary of the Interior by the heads of the Departments having supervision 
 of such ships and vessels, for incorporation in the Official Register. * * *. — 
 (28 Stat., 618, chap. 23.) 
 
 By act of Octo]>er 22, 1913 (38 Stat., 224), the The Director of the Census has been substi- 
 last paragraph above quoted, as to ships tuted for the Secretary of the Interior in 
 
 and vessels, was repealed. the above enactment. (See note to sec. 
 
 198, R. S.) 
 
 Of the Official Register three thousand copies shall be printed and bound, 
 which shall be distributed as follows : * * * to the Navy Department, twenty 
 copies * * *.— (28 Stat., 619, chap. 23.) 
 
 No report, document, or publication of any kind distributed by or from an 
 Executive Department or bureau of the Government shall contain any notice 
 that the same is sent with " the compliments " of an officer of the Government, 
 or with any special notice that it is so sent, except that notice that it has been 
 sent, with a request for an acknowledgment of its receipt, may be given. — 
 (28 Stat., 620, chap. 23.) 
 
 See note to section 429, Revised Statutes. 
 
 [1895, Jan. 12, sec. 74. Government publications, ownership.] Government 
 publications furnished to judicial and executive officers of the United States for 
 their official use shall not become the property of these officers, but on the ex- 
 piration of their official term shall be by them delivered to their successors in 
 office and all Government publications delivered to designated depositories 
 or other libraries shall be for public use without charge. — (28 Stat., 620, 
 chap. 23.) 
 
 [1895, Jan. 12, sec. 77. Hydrographic Office, publications, sale of.] The 
 Secretary of the Navy is authorized to cause to be prepared at the Hydrograpliic 
 Office attached to the Bureau of Navigation, in the Navy Department, maps, 
 charts, and nautical books relating to and required in navigation, and to publish 
 and furnish them to navigators at the cost of printing and paper, and to purchase 
 the plates and copyrights of such existing maps, charts, navigators' sailing 
 directions and instructions as he may consider necessary and when he may deem 
 it expedient to do so, and under such regulations and instructions as he may 
 prescribe. 
 
 1236 
 
see act of February 14, 1879 (20 Stat., 286), 
 as to sale of charts to mariners and others. 
 
 Printing and Binding. Pt. 3. STATUTES AT LARGE. Jan. 12, 1895. 
 
 All moneys which may be received from the sale of maps, charts, and 
 
 nautical books shall be paid by the Secretary of the Navy into the Treasury of 
 
 the United States, to be used in the further preparation and publication of 
 
 maps, charts, navigators' sailing directions, and instructions for the use of 
 
 seamen, to be sold at the cost of printing and paper. — (28 Stat., 621, chap. 23.) 
 
 See sections 431^33, Revised Statutes, and 
 act of May 29, 1920 (41 Stat., 665); see also 
 section 89 of this act, set forth below; and 
 
 [1895, Jan. 12, sec. 78. Foreign hydrographic surveys.] All appropriations 
 made for the preparation or publication of foreign hydrographic surveys shall 
 only be applicable to their object, upon the approval by the Secretary of the 
 Navy, after a report from three competent naval officers to the effect that the 
 original data for proposed charts are such as to justify their publication; and it 
 is hereby made the duty of the Secretary of the Navy to order a board of three 
 naval officers to examine and report upon the data before he shall approve of 
 any application of moneys to the preparation or publication of such charts or 
 hydrographic surveys. — (28 Stat., 621, chap. 23.) 
 
 See sections 431^33, and 3686, Revised Statutes, and notes thereto. 
 
 [1895, Jan. 12, sec. 80. Time for furnishing copy and illustrations to Public 
 
 Printer.] No document or report to be illustrated or accompanied by maps 
 
 shall be printed by the Public Printer until the illustrations or maps designed 
 
 therefor shall be ready for publication; and no order for public printing shall 
 
 be acted upon by the Public Printer after the expiration of one year, unless the 
 
 entire copy and illustrations for the work shall have been furnished within that 
 
 period: Provided^ This section shall not apply to orders heretofore made for the 
 
 printing of a series of volumes on one subject. — (28 Stat., 621, chap. 23.) 
 
 See section 196, Re\'ised Statutes, and note thereto, as to time for furnishing copy of annual 
 reports to printer; and see section 2 of this act, set forth above. 
 
 [1895, Jan. 12, sec. 86. Authority of law for work; style of binding.] No 
 printing or binding shall be done at the Government Printing Office unless 
 authorized by law. Binding for the Departments of the Government shall be 
 done in plain sheep or cloth, except that record and account books may be 
 bound in Russia leather, sheep fieshers, and skivers, when authorized by the 
 head of a Department: Provided, The libraries of the several Departments, the 
 Library of Congress, the libraries of the Surgeon-General's Office, the Patent 
 Office, and the Naval Observatory may have books for the exclusive use of 
 said libraries bound in half Turkey, or material no more expensive. — (28 Stat., 
 622, chap. 23.) 
 
 also section 51 of this act, set forth above, as 
 to style of binding. 
 
 See section 94 of this act, and act of March 3, 
 1905 (33 Stat., 1249) for restrictions on 
 printing for Executive Departments; see 
 
 [1895, Jan. 12, sec. 87. Printing, etc., to be done at Government Printing 
 Office.] All printing, binding, and blank books for the Senate or House of 
 Representatives and for the Executive and Judicial Departments shall be done 
 at the Government Printing Office, except in cases otherwise provided by law. — 
 (28Stat., 622, chap. 23.) 
 
 See act of March 1, 1919, section 11 (40 Stat., printing establishments, by the Secretary 
 
 1270). of War, "in time of actual hostilities." 
 
 By act of May 12, 1917 (40 Stat., 74 and 75), See note to section 159, Revised Statutes, for 
 this section was expressly amended to definition of ' ' Executive and Judicial De- 
 authorize work for the Army "or other partments." 
 miUtary forces," to be prociu-ed from other 
 
 1237 
 
Jan. 12, 1895. Pt. .?. STATUTES AT LARGE. Printing and Binding. 
 
 [1895, Jan. 12, sec. 89. Requisition for printing; number of copies; annual 
 reports ; publications of Hydrographic Office.] No printing shall be clone for the 
 Kxeoutive De])artments in any fiscal year in excess of the amount of the appro- 
 priation, and none shall bo done without a special requisition, signed b^' the 
 chief of the Department and filed ^vith the Public Printer. 
 
 No report, publication, or document shall be printed in excess of the 
 number of one thousand of each in any one fiscal 3^ear without authorization 
 therefor by Congress, except that of the annual report of the head of the Depart- 
 ment without appendices there may be printed in any one fiscal year not to 
 exceed five thousand copies, bound in pamphlet form; and of the reports of 
 chiefs of bureaus without appendices there may be printed in any one fiscal 
 year not to exceed two thousand five hundred copies, bound in pamphlet 
 form: * * * ^j^j ^he Secretary of the Navy may authorize the printing of 
 the charts, maps, notices to mariners, tide tables, light lists, sailing directions, 
 bulletins, and other special publications of the Hydrographic Office in such 
 editions as the interests of the Government and of the public may require. 
 
 Heads of Executive Departments shall direct whether reports made to 
 them by bureau chiefs and chiefs of divisions shall be printed or not. — (28 Stat., 
 622-623, chap. 23.) 
 
 See sections 196 and 429, Revised Statutes, and 
 notes thereto, and sections 91 and 94 of this 
 act, as to printing of annual reports. 
 
 See section 93 of this act, below, as to requi- 
 sitions for printing and binding. 
 
 See joint resolution of March 21, 1900 (31 Stat., 
 
 713), as to Naval Intelligence publications; 
 
 and see joint resolution of March 30, 1906 
 
 (34 Stat., 826), as to printing of documents 
 
 for Executive Departments in two or more 
 
 editions. 
 See section 77 of this act, set forth above, and 
 
 references thereunder, as to publications of 
 
 the Hydrographic Office. 
 
 [1895, Jan. 12, sec. 90. Congressional Record, daily examination of; docu- 
 ments, bills, etc., to be ordered by Departments.] The heads of Executive 
 Departments, and such executive officers as are not connected with the Depart- 
 ments, respectively, shall cause daily examination of the Congressional Record 
 for the purpose of noting documents, reports, and other publications of interest 
 to their Departments, and shall cause an immediate order to be sent to the 
 Public Printer for the number of copies of such publications required for official 
 use, not to exceed, however, the number of bureaus in the Department and 
 divisions in the office of the head thereof. The Public Printer shall send to 
 each Executive Department and to each executive office not connected with 
 the Departments, as soon as printed, five copies of all bills and resolutions, 
 except the State Department, to which shall be sent ten copies of bills and 
 resolutions. When the head of a Department desires a greater number of any 
 class of bills or resolutions for official use, they shall be furnished by the Public 
 Printer on requisition promptly made. — (28 Stat., 623, chap. 23.) 
 
 [1895, Jan. 12, sec. 91. Annual reports, style of printing.] The annual 
 reports of executive officers shall be printed in the same type and form as the 
 report of the head of the Department which it accompanies, unless otherwise 
 ordered by the Joint Committee on Printing. — (28 Stat., 623, chap. 23.) 
 
 See section 51 of this act, set forth above, as to 
 style of printing and binding. 
 
 See section 89 of this act, set forth above, and 
 sections 196 and 429, Rexased Statutes, 
 and notes thereto, as to printing of annual 
 reports. 
 
 1238 
 
Printing and Binding. Pt. 3. STATUTES AT LARGE. Jan. 12, 1895. 
 
 [1895, Jan. 12, sec. 92. Distribution of Government publications.] Govern- 
 ment publications printed for or received b_y the Executive Departments, 
 whether for official use or for distribution, shall be distributed by a competent 
 person detailed to such duty in each Department by the head thereof. He 
 shall keep an account in detail of all publications received and distributed by 
 him. He shall prevent duplication, and make detailed report to the head of 
 the Department, who shall transmit the same annually to Congress. — (28 Stat., 
 623, chap. 23.) 
 
 See act of August 23, 1912, section 8 (37 Stat., i Not to be distributed with "the compliments" 
 
 414-415), as to distribution of documents , of any officer: See section 73, last para- 
 
 for Executive Departments to be done by j graph, of this act, set forth above; and see 
 
 the Pubhc Printer, with certain exceptions. ; note to section 429, Revised Statutes. 
 
 [1895, Jan. 12, sec. 93. Requisitions for work; estimate of cost; appropriation 
 charged.] When any Department, the Supreme Court, the Court of Claims, or 
 the Library of Congress shall require printing or binding to be done it shall 
 be on certificate that such work be necessary for the public service; whereupon 
 the Public Printer shall furnish an estimate of the cost by the principal items 
 for such printing or binding so called for, after which requisitions shall be 
 made upon him therefor by the head of such Department, the Clerk of the 
 Supreme Court, Chief Justice of the Court of Claims, or the Librarian of Congress; 
 and the Public Printer shall place the cost thereof to the debit of such Depart- 
 ment in its annual appropriation for printing and binding. — (28 Stat., 623, 
 chap. 23.) 
 
 See section 89 of this act, set forth above; and see joint resolution of March 30, 1906 
 (34 Stat., 825), as to charges against printing allotments. 
 
 [1895, Jan. 12, sec. 94. Authority of law for printing; restrictions upon 
 annual reports.] No head of any Executive Department, or of any bureau, 
 branch, or office of the Government, shall cause to be printed, nor shall the 
 Public Printer print, any document or matter except that which is authorized 
 by law and necessary to the public business; and executive officers, before 
 transmitting their annual reports, shall carefully examine the same and all 
 accompanying documents, and exclude therefrom all matter, including engrav- 
 ings, maps, drawings, and illustrations, except such as they shall certify in 
 their letters transmitting such reports are necessary and relate entirely to the 
 transaction of the public business. — (28 Stat., 623, chap. 23.) 
 
 See act of March 3, 1905 (33 Stat., 1213), as to 
 illustrations iu reports, etc. 
 
 See section 86 of tliis act and act of March 3, 
 
 1905 (33 Stat., 1249), for restrictions on 
 
 printing and binding. 
 See section 89 of this act, and sections 196 and 
 
 429, Revised Statutes, and notes thereto, 
 
 as to printing of annual reports. 
 
 [1895, Jan. 12, sec. 95. Exchange of documents and books.] Heads of 
 Departments are authorized to exchange surplus documents for such other 
 documents and books as may be required by them, when the same can be 
 done to the advantage of the public service. — (28 Stat., 623, chap. 23.) 
 
 [1895, Jan. 12, sec. 96. Official envelopes procured by Postmaster-General.] 
 The Postmaster-General shall contract for all envelopes, stamped or otherwise, 
 designed for sale to the public, or for use by his own or other Departments, and 
 may contract for them to be plain or with such printed matter as may be 
 prescribed by the Department making requisition therefor: Provided, That 
 
 1239 
 
Feb. 8, 1895. Ft. 3. STATUTES AT LARGE. ' Navigation. 
 
 no envelope furnished by the Government shall contain any busmess address 
 or advertisement. — (28 Stat., 624, chap. 23.) 
 
 See act of June 26, 190fi (34 Stat., 476), which 
 
 express reference thereto; and see act of 
 
 amended this section, although without June 30, 1906, section 2 (34 Stat., 762), 
 
 [1895, Jan. 12, sec. 98. Libraries of Departments, etc., designated deposi- 
 tories of Government publications.] The libraries of the * * * Executive 
 Dopartments, of the United States Military Academy, and United States Naval 
 Academy are hereby constituted designated depositories of the Government 
 publications, and the superintendent of documents shall supply one copy of 
 said pubUcations, in the same form as supplied to other depositories, to each 
 of said libraries. — (28 Stat., 624, chap. 23.) 
 
 [1895, Jan. 25. Oaths, officers of the Navy, Marine Corps, etc., may admin- 
 ister.] That judges advocate of naval general courts-martial and courts of 
 inquiry, and all commanders in chief of naval squadrons, commandants of 
 navy yards and stations, officers commanding vessels of the Navy, and recruit- 
 ing officers of the Navy, and the adjutant and inspector, assistants adjutant 
 and inspector, commanding officers, recruiting officers of the JVIarine Corps, and 
 such other officers of the Regular Navy and JVIarine Corps, of the Naval Reserve 
 Force, of the IMarine Corps Reserve, and of the National Naval Volunteers as may 
 be hereafter designated by the Secretary of the Navy, be, and they are hereby, 
 authorized to administer oaths for the purposes of the administration of naval 
 justice and for other purposes of naval administration. — (28 Stat., 639-640, 
 chap. 45; 31 Stat., 1086, chap. 834; 39 Stat., 1171, chap. 180.) 
 
 This act was expressly amended and reenacted 
 to read as above by act of March 4, 1917 (39 
 Stat., 1171); it had previo\isly been 
 amended and reenacted by act of March 3, 
 1901 (31 Stat., 1086). 
 
 The National Naval Volunteers, created by act 
 of Au^ist 29, 1916 (39 Stat., 595), was abol- 
 ished by act of July 1, 1918 (40 Stat., 708), 
 
 [1895, Feb. 8, Navigation on the Great lakes and their connecting- and tribu- 
 tary waters as far east as Montreal.] That the following rules for preventing 
 collisions shall be followed in the navigation of all public and private vessels of 
 the United States upon the Great Lakes and their connecting and tributary 
 waters as far east as IVTontreal. — (28 Stat., 645, chap. 64.) 
 
 which authorized transfer of the members 
 of that organization to the Naval Reserve 
 Force or Marine Corps Reserve. 
 See section 183, Revised Statutes, and note 
 thereto, for reference to other laws relating 
 to the administration of oaths by persons 
 in the naval ser\dce. 
 
 Regulations for preventing collisions at sea: 
 See act of August 19, 1890 (26 Stat., 320), 
 and amendments thereto. 
 
 Navigation on the Red River of the North and 
 rivers emptying into the Gulf of Mexico and 
 their tributaries: See sections 4233 and 
 4412, Revised Statutes, and notes thereto. 
 
 Na\'igation on all harbors, rivers, and inland 
 waters of the United States, except the 
 Great Lakes and their connecting and 
 tributary waters as far east as Montreal, and 
 except the Red River of the North and 
 
 rivers emptying into the Gulf of Mexico 
 and their tributaries: See act of June 7, 1897 
 (30 Stat., 96). 
 
 Navigation, Pearl Harbor, Hawaii: See act of 
 August 22, 1912 (37 Stat., 341). 
 
 Rules governing motor boats: See act of Jime 9, 
 1910 (36 Stat., 4G2). 
 
 See, generally, notes to sections 4233 and 4412, 
 Revised Statutes; and Navy Regulations, 
 1920 (chap. 55), quoting laws, and regula- 
 tions of the Department of Commerce "for 
 preventing collisions," etc. 
 
 Steam and Sail Vessels. 
 
 Rule 1. Every steam vessel wliich is under sail and not under steam, shall 
 be considered a sail vessel; and every steam vessel which is under steam, 
 whether under sad. or not, shall be considered a steam vessel. The word steam 
 
 1240 
 
Navigation. Pt. S. STATUTES AT LARGE. Feb. 8, 1895. 
 
 vessel shall include any vessel propelled by machinery. A vessel is under way 
 within the meaning of these rules when she is not at anchor or made fast to the 
 shore or aground. — (28 Stat., 645, chap. 64.) 
 
 LIGHTS. 
 
 Rule 2. The lights mentioned in the following rules and no others shaU 
 be carried in all weathers from sunset to sunrise. The word visible in these 
 rules when applied to lights shall mean visible on a dark night with a clear 
 atmosphere. — (28 Stat., 645, chap. 64.) 
 
 Rule 3. Except in the cases hereinafter expressly provided for, a steam 
 vessel when under way shall carry: 
 
 (a) On or in front of the foremast, or if a vessel without a foremast, then 
 in the forepart of the vessel, at a height above the hull of not less than twenty 
 feet, and if the beam of the vessel exceeds twenty feet, then at a height above 
 the hull not less than such beam, so, however, that such height need not exceed 
 forty feet, a bright white light so constructed as to show an unbroken light over an 
 arc of the horizon of twent}^ points of the compass, so fixed as to throw the light 
 ten points on each side of the vessel, namely, from right ahead to two points 
 abaft the beam on either side, and of such character as to be visible at a dis- 
 tance of at least five miles. 
 
 (b) On the starboard side, a green light, so constructed as to throw an 
 unbroken light over an arc of the horizon of ten points of the compass, so 
 fixed as to throw the light from right ahead to two points abaft the beam on the 
 starboard side, and of such a character as to be visible at a distance of at 
 least two miles. 
 
 (c) On the port side, a red light, so constructed as to show an unbroken 
 light over an arc of the horizon of ten points of the compass, so fixed as to throw 
 the light from right ahead to two points abaft the beam on the port side, and 
 of such a character as to be visible at a distance of at least two miles. 
 
 (d) The said green and red lights shall be fitted with inboard screens pro- 
 jecting at least three feet forward from the light, so as to prevent these lights 
 from being seen across the bow. 
 
 (e) A steamer of over one hundred and fifty feet register length shall also 
 carry when under way an additional bright light similar in construction to 
 that mentioned in subdivision (a), so fixed as to throw the light all around 
 the horizon and of such character as to be visible at a distance of at least 
 three miles. Such additional light shall be placed in line with the keel at 
 least fifteen feet higher from the deck and more than seventy-five feet abaft 
 the light mentioned in subdivision (a). — (28 Stat., 645-646, chap. 64.) 
 
 VESSELS TOW^NG. 
 
 Rule 4. A steam vessel having a tow other than a raft shall in addition 
 to the forward bright light mentioned in subdivision (a) of rule three carry 
 in a vertical line not less than six feet above or below that light a second bright 
 light of the same construction and character and fixed and carried in the same 
 manner as the forward bright light mentioned in said subdivision (a) of rule 
 three. Such steamer shall also carry a small bright light abaft the funnel 
 
 1241 
 
Feb. 8, 1895. Ft. S. STATUTES AT LARGE. Navigation. 
 
 or after mast for the tow to steer by, but such light shall not be visible forward 
 of the beam. — (28 Stat., 646, chap. 64.) 
 
 Rule 5. A steam vessel having a raft in tow shall, instead of the forward 
 lights mentioned in rule four, carry on or in front of the foremast, or if a vessel 
 without a foremast then in the fore part of the vessel, at a height above the hull 
 of not less than twenty feet, and if the beam of the vessel exceeds twenty feet 
 then at a height above the hull not less than such beam, so however that such 
 height need not exceed forty feet, two bright lights in a horizontal line athwart- 
 ships and not less than eight feet apart, each so fixed as to throw the light 
 all around the horizon and of such character as to be visible at a distance of 
 at least five miles. Such steamer shall also carry the small bright steering 
 light aft, of the character and fixed as required in rule four. — (28 Stat., 646, 
 chap. 64.) 
 
 Rule 6. A sailing vessel under way and any vessel being towed shall 
 carry the side lights mentioned in rule three. 
 
 A vessel in tow shall also carry a small bright light aft, but such light 
 shall not be visible forward of the beam. — (28 Stat., 646, chap. 64.) 
 
 Rule 7. The lights for tugs under thirty tons register whose principal 
 business is harbor towing, and for boats navigating only on the River Saint 
 Lawrence, also ferryboats, rafts, and canal boats, shall be regulated by rules 
 which have been or may hereafter be prescribed by the Board of Supervising 
 Inspectors of Steam Vessels. — (28 Stat., 646, chap. 64.) 
 
 Rule 8. Whenever, as in the case of small vessels under way during bad 
 weather, the green and red side lights can not be fixed, these lights shall be 
 kept at hand lighted and ready for use, and shall, on the approach of or to other 
 vessels, be exhibited on their respective sides in sufficient time to prevent col- 
 lision, in such manner as to make them most visible, and so that the green light 
 shall not be seen on the port side, nor the red light on the starboard side, nor, 
 if practicable, more than two points abaft the beam on their respective sides. 
 To make the use of these portable lights more certain and easy, they shall each 
 be painted outside with the color of the light they respectively contain, and shall 
 be provided with suitable screens. — (28 Stat., 646-647, chap. 64.) 
 
 Rule 9. A vessel under one hundred and fifty feet register length, when 
 at anchor, shall carry forward, where it can best be seen, but at a height not 
 exceeding twenty feet above the hull, a white light in a lantern constructed 
 so as to show a clear, uniform, and unbroken light, visible all around the horizon, 
 at a distance of at least one mile. 
 
 A vessel of one hundred and fifty feet or upward in register length, when 
 at anchor, shall carry in the forward part of the vessel, at a height of not less 
 than twenty and not exceeding forty feet above the hull, one such light, and 
 at or near the stern of the vessel, and at such a height that it shall be not less 
 than fifteen feet lower than the forward light, another such light. — (28 Stat., 
 647, chap. 64.) 
 
 Rule 10. Produce boats, canal boats, fishing boats, rafts, or other water 
 craft navigating any bay, harbor, or river by hand power, horse power, sail, 
 or by the current of the river, or which shall be anchored or moored in or near 
 the channel or fairway of any bay, harbor, or river, and not otherwise provided 
 for in these rules, shall carry one or more good white lights, which shall be placed 
 
 1242 
 
Navigation. Pt. 3. STATUTES AT LARGE. Feb. 8, 1895. 
 
 in such manner as shall be prescribed by the Board of Supervising Inspectors 
 of Steam Vessels. — (28 Stat., 647, chap. 64.) 
 
 Rule 11. Open boats shall not be obliged to carry the side lights required 
 for other vessels, but shall, if they do not carry such lights, carry a lantern 
 having a green slide on one side and a red slide on the other side; and on the 
 approach of or to other vessels, such lantern shall be exhibited in sufficient time 
 to prevent collision, and in such a manner that the green light shall not be seen 
 on the port side, nor the red light on the starboard side. Open boats, when at 
 anchor or stationary, shall exhibit a bright white light. They shall not, how- 
 ever, be prevented from using a flare-up in addition if considered expedient. — 
 (28 Stat., 647, chap. 64.) 
 
 Rule 12. Sailing vessels shall at all times, on the approach of any steamer 
 during the nighttime, show a lighted torch upon that point or quarter to 
 which such steamer shall be approaching. — (28 Stat., 647, chap. 64.) 
 
 Rule 13. The exhibition of an}^ light on board of a vessel of war or revenue 
 cutter of the United States may be suspended whenever, in the opinion of the 
 Secretary of the Navy, the commander in chief of a squadron, or the commander 
 of a vessel acting singly, the special character of the service may require it. — 
 (28 Stat., 647, chap. 64.) 
 
 FOG SIGNALS. 
 
 Rule 14. A steam vessel shall be provided with an efficient whistle, 
 sounded by steam or by some substitute for steam, placed before the funnel 
 not less than eight feet from the deck, or in such other place as the local inspec- 
 tors of steam vessels shall determine, and of such character as to be heard in 
 ordinary weather at a distance of at least two miles, and with an efficient bell, 
 and it is hereby made the duty of the United States local inspectors of steam 
 vessels when inspecting the same to require each steamer to be furnished with 
 such whistle and bell. A sailing vessel shall be provided with an efficient fog 
 horn and with an efficient bell. 
 
 Whenever there is tliick weather by reason of fog, mist, falling snow, heavy 
 rainstorms, or other causes, whether by day or by night, fog signals shall be 
 used as follows : 
 
 (a) A steam vessel under way, excepting only a steam vessel with raft in 
 tow, shall sound at intervals of not more than one minute three distinct blasts 
 of her whistle. 
 
 (b) Every vessel in tow of another vessel shall, at intervals of one minute, 
 sound four bells on a good and efficient and properly placed bell as follows: 
 By striking the bell twice in quick succession, followed by a little longer interval, 
 and then again striking twice in c{uick succession (in the manner in which four 
 bells is struck in indicating time) . 
 
 (c) A steamer with a raft in tow shall sound at intervals of not more than 
 one minute a screeching or Modoc whistle for from three to five seconds. 
 
 (d) A sailing vessel under way and not in tow shall sound at intervals of 
 not more than one minute — 
 
 If on the starboard tack with wind forward of abeam, one blast of her fog 
 horn ; 
 
 54641°— 22 79 1243 
 
Feb. 8, 1895. Pt. S. STATUTES AT LARGE. Navigation. 
 
 If on the port tack with wind forward of the beam, two blasts of her fog 
 horn ; 
 
 If she has the wind abaft the beam on either side, three blasts of her fog 
 horn. 
 
 (e) Any vessel at anchor and any vessel aground in or near a channel or 
 fairway shall at intervals of not more than two minutes ring the bell rapidly 
 for three to five seconds. 
 
 (f) Vessels of less than ten tons registered tonnage, not being steam ves- 
 sels, shall not bo obliged to give the above-mentioned signals, but if they do 
 not they shall make some other efficient sound signal at intervals of not more 
 than one minute. 
 
 (g) Produce boats, fishing boats, rafts, or other water craft navigating by 
 hand power or by the current of the river, or anchored or moored in or near the 
 channel or fairway and not in any port, and not otherwise provided for in these 
 rules, shall sound a fog horn, or equivalent signal, at intervals of not more than 
 one minute.— (28 Stat., 647-648, chap. 64.) 
 
 Rule 15. Every vessel shall, in thick weather, by reason of fog, mist, 
 falling snow, heavy rainstorms, or other causes, go at moderate speed. A 
 steam vessel hearing, apparently not more than four points from right ahead, 
 the fog signal of another vessel shall at once reduce her speed to bare steerage- 
 way, and navigate with caution until the vessels shall have passed each other. — 
 (28 Stat., 648, chap. 64.) 
 
 Steering and Sailing Rules. 
 
 sailing vessels. 
 
 Rule 16. When two sailing vessels are approaching one another so as to 
 involve risk of collision one of them shall keep out of the way of the other, as 
 follows, namely: 
 
 (a) A vessel which is running free shall keep out of the way of a vessel 
 which is closehauled. 
 
 (b) A vessel which is closehauled on the port tack shall keep out of the 
 way of a vessel which is closehauled on the starboard tack. 
 
 (c) Wben both are running free, with the wind on different sides, the vessel 
 which has the wind on the port side shall keep out of the way of the other. 
 
 (d) Wlien they are running free, with the wind on the same side, the vessel 
 which is to windward shall keep out of the way of the vessel which is to lee- 
 ward.— (28 Stat., 648, chap. 64.) 
 
 STEAM VESSELS. 
 
 Rule 17. When two steam vessels are meeting end on, or nearly end on, so 
 as to involve risk of collision each shall alter her course to starboard, so that 
 each shall pass on the port side of the other. — (28 Stat., 648, chap. 64.) 
 
 Rule 18. — When two steam vessels are crossing so as to involve risk of 
 collision the vessel which has the other on her own starboard side shall keep 
 out of the way of the other. — (28 Stat., 648, chap. 64.) 
 
 1244 
 
Navigation. Pt. 3. STATUTES AT LARGE. Feb. 8, 1895. 
 
 Rule 19. When a steam vessel and a sailing vessel are proceeding in such 
 directions as to involve risk of collision the steam vessel shall keep out of the 
 way of the sailing vessel. — (28 Stat., 648, chap. 64.) 
 
 Rule 20. — Where, hj any of the rules herein prescribed, one of two vessels 
 shall keep out of the way, the other shall keep her course and speed. — (28 
 Stat., 649, chap. 64.) 
 
 Rule 21. Every steam vessel which is directed by these rules to keep out of 
 the way of another vessel shall, on approaching her, if necessary, slacken her 
 speed or stop or reverse. — (28 Stat., 649, chap. 64.) 
 
 Rule 22. Notwithstanding anything contained in these rules every vessel 
 overtaking any other shall keep out of the way of the overtaken vessel. — (28 
 Stat., 649, chap. 64.) 
 
 Rule 23. In all weathers every steam vessel under w^ay in taking any 
 course authorized or required by these rules shall indicate that course by the 
 following signals on her whistle, to be accompanied whenever required by cor- 
 responding alteration of her helm ; and every steam vessel receiving a signal 
 from another shall promptly respond wdth the same signal or, as provided in 
 Rule Twenty-six : 
 
 One blast to mean, "I am directing my course to starboard." 
 
 Two blasts to mean, ''I am directing my course to port." But the giving 
 or answering signals by a vessel required to keep her course shall not vary the 
 duties and obligations of the respective vessels. — (28 Stat., 649, chap. 64.) 
 
 Rule 24. That in all narrow channels where there is a current, and in the 
 rivers Saint Mary, Saint Clair, Detroit, Niagara, and Saint Lawrence, when 
 two steamers are meeting, the descending steamer shall have the right of way, 
 and shall, before the vessel shall have arrived within the distance of one-half 
 mile of each other, give the signal necessary to indicate which side she elects to 
 take.— (28 Stat., 649, chap. 64.) 
 
 Rule 25. In all channels less than five hundred feet in width, no steam 
 vessel shall pass another going in the same direction unless the steam vessel 
 ahead be disabled or signify her willingness that the steam vessel astern shall 
 pass, when the steam vessel astern may pass, subject, however, to the other 
 rules applicable to such a situation. And when steam vessels proceeding in 
 opposite directions are about to meet in such channels, both such vessels shall 
 be slowed down to a moderate speed, according to the circumstances. — (28 
 Stat., 649, chap. 64.) 
 
 Rule 26. If the pilot of a steam vessel to which a passing signal is sounded 
 deems it unsafe to accept and assent to said signal, he shall not sound a cross 
 signal; but in that case, and in every case where the pilot of one steamer fails 
 to understand the course or intention of an approaching steamer, whether 
 from signals being given or answered erroneously, or from other causes, the 
 pilot of such steamer so receiving the first passing signal, or the pilot so in 
 doubt, shall sound several short and rapid blasts of the whistle; and if the 
 vessels shall have approached within half a mile of each other both shall reduce 
 their speed to bare steerageway, and, if necessary, stop and reverse. [28 Stat., 
 649, chap. 64.] 
 
 Rule 27. In obeying and construing these rules due regard shall be had 
 to all dangers of navigation and collision and to any special circumstances 
 
 1245 
 
Feb. 19, 1895. Pi. 3. STATUTES AT LARGE. Navigation. 
 
 which may render a departure from the above rules necessary in order to 
 avoid immediate danger. [28 Stat., 649, chap. 64.] 
 
 Rule 28. Nothing in these rules shall exonerate any vessel, or the owner 
 or master or crew thereof, from the consequences of any neglect to carry lights 
 or signals, or of any neglect to keep a proper lookout, or of a neglect of any 
 precaution which may be required by the ordinary practice of seamen, or by 
 the special circumstances of the case. [28 Stat., 649, chap. 64.] 
 
 [1895, Feb. 8, sec. 2. Violation of rules, navigation of Great lakes, etc. ; 
 penalty.] That a fine, not exceeding two hundred dollars, may be imposed for 
 the violation of any of the provisions of this Act. The vessel shall be liable 
 for the said penalty, and may be seized and proceeded against, by way of 
 libel, in the district court of the United States for any district within which 
 such vessel may be found. (28 Stat., 649, chap. 64.) 
 
 [1895, Feb. 8, sec. 3. Eegulations to be established for enforcement of act; 
 steam vessels passing each other; etc.] That the Secretary of the Treasury of 
 the United States shall have authority to establish all necessary regulations, 
 not inconsistent with the provisions of this Act, required to carry the same into 
 effect. 
 
 The Board of Supervising Inspectors of the United States shall have 
 authority to establish such regulations to be observed by all steam vessels in 
 passing each other, not inconsistent with the provisions of this Act, as they 
 shall from time to time deem necessary; and all regulations adopted by the 
 said Board of Supervising Inspectors under the authority of this Act, when 
 approved by the Secretary of the Treasury, shall have the force of law. Two 
 printed copies of any such regulations for passing, signed by them, shall be 
 furnished to each steam vessel, and shall at all times be kept posted up in 
 conspicuous places on board. — (28 Stat., 649-650, chap. 64.) 
 
 act of February 14, 1903 (32 Stat., 825- 
 
 The authority of the Secretary of the Treasury 
 with respect to this and other navigation 
 laws of the United States, was vested in 
 the Secretary of Commerce and Labor by 
 
 830) ; and in the Secretary of Commerce by 
 act of March 4, 1913 (37 Stat., 736). 
 
 [1895, Feb. 8, sec. 4. Repeal of inconsistent laws relating to navigation.] 
 That all laws or parts of laws, so far as applicable to the navigation of the 
 Great Lakes and their connecting and tributary waters as far east as Montreal, 
 inconsistent with the foregoing rules are hereby repealed. — (28 Stat., 650, 
 chap. 64.) 
 
 [1895, Feb. 19. Rules for navigation of certain inland waters.] That on 
 and after March first, eighteen hundred and ninety-five, the provisions of 
 sections forty-two hundred and thirty-three, forty-four hundred and twelve, 
 and forty-four hundred and thirteen of the Revised Statutes and regulations 
 pursuant thereto shall be followed on the harbors, rivers and inland waters 
 of the United States. 
 
 The provisions of said sections of the Revised Statutes and regulations pur- 
 suant thereto are hereby declared special rules duly made by local authority 
 relative to the navigation of harbors, rivers and inland waters as provided 
 for in Article thirty, of the iVct of August nineteenth, eighteen hundred and 
 ninety, entitled "An Act to adopt regulations for preventing collisions at sea." 
 
 Sec. 2. The Secretary of the Treasury is hereby authorized, empowered 
 and directed from time to time to designate and define by suitable bearings 
 
 1246 
 
Pt. 3. STATUTES AT LARGE. Mar. 2, 1895. 
 
 or ranges with lighthouses, light vessels, buoy's or coast objects, the lines 
 dividing the high seas from rivers, harbors and inland waters. 
 
 Sec. 3. Collectors or other chief officers of the customs shall require all 
 sail vessels to be furnished with proper signal lights. Every such vessel that 
 shall be navigated without complying with the Statutes of the United States, 
 or the regulations that may be lawfully made thereunder, shall be liable to a 
 penalty of two hundred dollars, one-half to go to the informer; for which 
 sum the vessel so navigated shall be liable, and may be seized and proceeded 
 against by way of libel in any district court of the United States having juris- 
 diction of the offense. 
 
 Sec. 4. The words ''inland waters" used in this Act shall not be held 
 to include the Great Lakes and their connecting and tributary waters as far 
 east as Montreal; and this Act shall not in any respect modify or affect the 
 provisions of the Act entitled "An Act to regulate navigation on the Great 
 Lakes and their connecting and tributary waters," approved February eighth, 
 eighteen hundred and ninety-five. — (28 Stat., 672, chap. 102.) 
 
 under sections 2 and 3 of this act, were 
 
 transferred to the Secretary of Commerce 
 and his subordinates by act of February 
 14, 1903 (32 Stat., 82.5-830), aa amended 
 by act of March 4, 1913 (37 Stat., 736). 
 See sections 4233 and 4412, Revised Statutes, 
 and acts of August 19, 1890 (26 Stat., 320), 
 February 8, 1895 (28 Stat., 645), and 
 June 7, 1897 (30 Stat., 96), and notes 
 thereto. 
 
 Sections 1 and 3 of this act, and sections 4233, 
 
 4412, and 4413, Re-vised Statutes, were 
 
 repealed, except in so far as concerned 
 
 "the Great Lakes and their connecting 
 
 and tributary waters as far east as Mont- 
 real and the Red River of the North 
 
 and rivers emptying into the Gulf of 
 
 Mexico, and their tributaries"': See act 
 
 of June 7, 1897, section 5 (30 Stat., 103). 
 The duties of the Secretary of the Treasury 
 
 and officers of the Treasiuy Department, 
 
 [1895, Mar. 2, sec. 5. Official bonds, examination and renewal of; liability 
 pending successor's appointment.] Hereafter every officer required by law to 
 take and approve official bonds shall cause the same to be examined at least 
 once every two years for the purpose of ascertaining the sufficiency of the sure- 
 ties thereon; and every officer having power to fix the amount of an official 
 bond shall examine it to ascertain the sufficiency of the amount thereof and 
 approve or fix said amount at least once in two years and as much oftener as 
 he may deem it necessary. — (28 Stat., 807-808, chap. 177.) 
 
 Hereafter every officer whose duty it is to take and approve official bonds 
 shall cause all such bonds to be renewed every four years after their dates, but 
 he may require such bonds to be renewed or strengthened oftener if he deem 
 such action necessary. In the discretion of such officer the requirement of a 
 new bond may be waived for the period of service of a bonded officer after the 
 expiration of a four-year term of service pending the appointment and qualifica- 
 tion of his successor: Provided, That the nonperformance of any requirement 
 of this section on the part of any official of the Government shall not be held to 
 affect in any respect the liability of principal or sureties on any bond made or to 
 be made to the United States: Provided further, That the liability of the prin- 
 cipal and sureties on all official bonds shall continue and cover the period of 
 service ensuing until the appointment and qualification of the successor of the 
 prmcipal * * * .—(28 Stat., 808, chap. 177.) 
 
 See sections 1383-1385, Revised Statutes, and notes thereto. 
 
 [1895, Mar. 2. Retired officers, detailed to colleges.] That any retired 
 officer of the Navy or Marine Corps may, on his own application, be detailed to 
 
 1247 
 
Apr. 24, 1806. Pt. S. STATUTES AT LARGE. 
 
 service as a teacher or professor in any school or college, but while so serving 
 such officer shall be allowed no additional compensation. — (28 Stat., 826, chap. 
 
 186.) 
 
 See section 1225, Revised Statutes, and note thereto. 
 
 [1895, Mar. 2. Quarters, training force.] Naval TraininCx Station^ 
 Coasters Harbor Island, Rhode Island (for apprentices) ; * * * 
 Provided, That no part of the personnel of the training force shall be quartered 
 on shore except in case of sickness. — (28 Stat., 827, chap. 186.) 
 
 [1895, Mar. 2. Courts-martial for naval cadets.] That the Secretary of 
 the Navy shall have power to convene general courts-martial for the trial of 
 naval cadets, subject to the same limitations and conditions now existing as to 
 other general courts-martial, and to approve the proceedings and execute the 
 sentences of such courts, except the sentences of suspension and dismissal, 
 which, after having been approved by the Superintendent, shall not be carried 
 into effect until confirmed by the President. — (28 Stat., 838, chap. 186.) 
 
 See note to section 1519, Revised Statutes. 
 
 [1895, Mar. 2. Disposal of useless papers.] That the Act entitled "An Act 
 to authorize and provide for the disposition of useless papers in the Executive 
 Department," approved February sixteenth, eighteen hundred and eighty-nine, 
 be, and the same is hereby, amended so as to include in its provisions any ac- 
 cumulation of files of papers of a like character therein described now or here- 
 after in the various public buildings under the control of the several Executive 
 Departments of the Government. — (28 Stat., 933, chap. 189.) 
 
 See act of February 16, 1889 (25 Stat., 672), and references thereunder. 
 
 [1895, Mar. 2. Estimates, printing and binding.] And it shall be the duty 
 of the Public Printer to submit to Congress at the beginning of its next regular 
 session, estimates in detail under the head of printing and binding for the service 
 of the fiscal year eighteen hundred and ninety-seven and annually thereafter, 
 covering appropriations requisite for all work to be done and services to be ren- 
 dered under his direction by the provisions of the said Act and not previously 
 required of him * * * .—(28 Stat., 961, chap. 189.) 
 
 The words "said Act" in the provision refer 
 to the act of Januaiy 12, 1895 (28 Stat., 
 601-624, chap. 23); see section 27 of that 
 
 act (28 Stat., 604), and references there- 
 under, as to estimates for printing and 
 binding. 
 
 [1896, Mar. 28. Commissions of officers.] That hereafter the commissions 
 
 of all officers under the direction and control of the Secretary of the Treasury, 
 
 the Secretary of War, the Secretary of the Navy, and the Secretary of Agii- 
 
 culture shall be made out and recorded in the respective Departments under 
 
 which they are to serve, and the Department seal affixed thereto, any laws to 
 
 the contrary notwithstanding: Provided, That the said seal shall not be affix:ed 
 
 to any such commission before the same shall have been signed by the President 
 
 of the United States.— (29 Stat., 75, chap. 73.) 
 
 See note to Constitution, Article IT, section 3, Statutes, under "The Secretary of the 
 
 under "II. Duty to commission officers"; Navy represents the President." 
 
 and see note to section 417, Revised 
 
 [1896, Apr. 24, sec. 2. Apprentices additional to number of enlisted persons.] 
 That all apprentices of the Navy, whether at a training station or on board 
 
 1248 
 
Pt. S. STATUTES AT LARGE. Jiine 10, 1896. 
 
 an apprentice training ship, shall be additional to the number of enlisted 
 persons allowed by law for the Navy. — (29 Stat., 97, chap. 120.) 
 
 See note to section 1417, Re\'ised Statutes. 
 
 [1896, May 22. Condemned ordnance, etc., loan or gift of.] That the 
 Secretary of War and the Secretary of the Navy are each hereby authorized, 
 in their discretion, to loan or give to soldiers' monument associations, posts 
 of the Grand Army of the Republic, and municipal corporations, condemned 
 ordnance, guns, and cannon balls which may not be needed in the service of 
 either of said Departments. Such loan or gift shall be made subject to rules 
 and regulations covering the same in each Department, and the Government 
 shall be at no expense in connection with any such loan or gift. — (29 Stat., 
 133-134, chap. 231.) 
 
 See section 418, Revised Statutes, and note thereto. 
 
 [1896, May 28. Appropriation acts, footing of paragraphs to determine 
 amount appropriated.] That hereafter the total amount appropriated in the 
 various paragraphs of an appropriation Act shall be determined by the correct 
 footing up of the specific sums or rates appropriated in each paragraph con- 
 tained therein unless otherwise expressly provided. — (29 Stat., 148, chap. 252.) 
 
 [1896, May 28, sec 2. Liability to draft, officers in merchant service; 
 wages for naval service.] No master, mate, pilot, or engineer of steam vessels 
 licensed under title fifty-two of the Revised Statutes, pages forty-three hundred 
 and ninety-nine to forty-five hundred, shall be liable to draft in time of war, 
 except for the performance of duties such as required by his license; and while 
 performing such duties in the service of the United States every such master, 
 mate, pilot, or engineer shall be entitled to the highest rate of wages paid in 
 the merchant marine of the United States for similar services; and if killed or 
 wounded while performing such duties under the United States, they, or their 
 heirs, or their legal representatives, shall be entitled to all the privileges ac- 
 corded to soldiers and sailors serving in the Army or Navy, under the pension 
 laws of the United States.— (29 Stat., 189, chap. 255; 38 Stat., 765-766, chap. 
 334.) 
 
 This pro\'ision was expressly amended and reenacted to read as above by act of October 22, 
 1914 (38 Stat., 765-766). 
 
 [1896, June 10. Allotments of pay.] That the Secretary of the Navy be, 
 and he is hereby, authorized to permit officers of the Navy and the Marine 
 Corps to make allotments from their pay, under such regulations as he may 
 prescribe, for the support of their families or relatives, for their own savings, 
 or for other proper purposes, during such time as they may be absent at sea, on 
 distant dut}^, or under other circumstances warranting such action. — (29 Stat., 
 361, chap. 399.) 
 
 See sections 1430, 1551, 1576, and 3477, Revised Statutes, and notes thereto. 
 
 [1896, June 10. Officers reappointed, credit for previous service.] That all 
 officers who have been or may be appointed to any corps of the Navy or to the 
 Marine Corps after service in a different corps of the Navy or of the Marine 
 Corps shall have all the benefits of their previous service in the same manner as 
 if said appointments were a reentry into the Navy or into the Marine Corps. — 
 (29 Stat., 361, chapter, 399.) 
 
 1249 
 
June 10, 1896. 
 
 Pt. 3. STATUTES AT LARGE. 
 
 This enactment superseded a similar provision 
 contained in the act of July 2(i, 1894 (28 
 Stat., 12;V), which did not make specific 
 reference to the Marine Corps. 
 
 See sections 1443, 1556, and 1600, Revised 
 Statutes; and see act of March 3, 1883 (22 
 Stat., 473). 
 
 [1896, June 10. Officers employed by contractors.] That hereafter no pay- 
 ment shall be made from appropriations made by Congress to any officer in 
 the Navy or Marine Corps on the active or retired list while such officer is 
 employed, after June thirtieth, eighteen hundred and ninety-seven, by any 
 person or company furnishing naval supplies or war material to the Govern- 
 ment; and such employment is hereby made unlawful after said date. — (29 
 Stat., 361, chap. 399.) 
 
 The question whether this law prevents re- 
 tired officers from serving as "directors" of a 
 company furnishing naval supplies to the Gov- 
 ernment depends upon the construction of the 
 words "employed" and "employment" as 
 used therein. It would seem that retired 
 officers can not legally serve in this capacity. 
 (Opinion of Judge Advocate General, June 6, 
 1908; file 9736-9.) 
 
 Without regard to whether employment by a 
 retired officer as superintendent or foreman 
 with contractors performing work on contracts 
 at a naval training station is specifically pro- 
 hibited by law or regulation, the acceptance of 
 such employment by a retired oflBcer would be 
 regarded by the Department as in the highest 
 degree objectionable and improper. (De- 
 partment's letter. May 26, 1910; file 9736-17.) 
 
 See sections 1440, 1763-1765, and 1860, Re- 
 \'ised Statutes, and notes thereto, for other 
 restrictions upon employment of naval 
 officers; see also sections 41 and 112, Crim- 
 inal Code, act of March 4, 1909 (35 Stat., 
 1097, 1108). 
 Nature of employment forbidden. — 
 
 "The law makes no distinction as to the char- 
 acter of ser\ace rendered by a retired officer of 
 
 the Navy who might be in the employ of a 
 
 contractor, and makes no provision for ex- 
 ceptions on any ground." Therefore, the 
 
 acceptance by a retired officer of employment 
 
 as assistant superintendent of motive power 
 
 with a company furnishing naval supplies or 
 
 war material for the Government would be 
 
 unlawful, even though such officer would have 
 
 nothing to do with the manufacture or sale of 
 
 products. (Department's letter, January 19, 
 
 1910; file 9736-14.) 
 
 [1896, June 10. Tobacco, advertisement for.] And the Secretary of the 
 Navy is hereby authorized and directed to cause advertisement to be made for 
 tobacco for the use of the Navy, as the needs of the service may require, in the 
 manner prescribed by law for other supplies. Bidders shall submit with their 
 proposals a sample of the tobacco which they propose to furnish, and the 
 contract shall, in the discretion of the Department, be awarded to the bidder 
 whose sample is found by a board of officers to be the best adapted for use in 
 the Navy.— (29 Stat., 370, chap. 399.) 
 
 See sections 3718, 3721, Revised Statutes, and notes thereto. 
 
 [1896, June 10. Model tank for experiments.] For making plans, examining 
 and preparing the ground, and other preliminary work toward the construction of . 
 a model tank, with all buildings and appHances, to be built upon the grounds of 
 the navy yard at Washington, District of Columbia, under the Bureau of Con- 
 struction and Repair of the Navy Department, which shall conduct therein 
 the work of investigating and determining the most suitable and desirable 
 shapes and forms to be adopted for United States naval vessels, seven thousand 
 five hundred dollars: Provided, That upon the authorization of the Secretary 
 of the Navy experiments may be made at this establishment for private ship- 
 builders, who shall defray the cost of material and of labor of per diem employees 
 for such experiments: And provided further, That the results of such private 
 experiments shall be regarded as confidential and shall not be divulged without 
 the consent of the shipbuilder for whom they may be made. — (29 Stat., 372, 
 chap. 399.) 
 
 1250 
 
Navigation. 
 
 Pt. 3. STATUTES AT LARGE. 
 
 June 7, 1897. 
 
 [1896, June 10. Mileage, Marine Corps.] And hereafter ofRcers of the 
 Marine Corps travehng under orders without troops shall be allowed the same 
 mileage as is now allowed officers of the Navy traveling without troops. — 
 (29 Stat., 376, chap. 399.) 
 
 See notes to sections 1566 and 1612, Revised Statutes. 
 
 [1897, Feb. 13. Passed assistant surgeons to be commissioned.] That passed 
 assistant surgeons now borne upon the Navy Register shall be commissioned 
 as such by the President, such commissions to bear the dates upon which said 
 passed assistant surgeons, respectively, received their appointments as such; 
 and hereafter assistant surgeons shall be regularly promoted and commissioned 
 as passed assistant surgeons, and passed assistant surgeons as surgeons, sub- 
 ject to such examinations as may be prescribed by the Secretary of the Navy: 
 Provided, however, That no examination of passed assistant surgeons shall be 
 ordered until the expiration of six months from the passage of this Act, during 
 which time promotions shall be made as now provided by law. — (29 Stat., 
 526, chap. 221.) 
 
 See note to section 1368, Re\dsed Statutes under "Passed assistant surgeons.'- 
 
 [1897, Mar. 3, sec. 7. Applications for patents, heads of Departments to be 
 represented.] That in every case where the head of any Department of the 
 Government shall request the Commissioner of Patents to expedite the consid- 
 eration of an application for a patent it shall be the duty of such head of a 
 Department to be represented before the Commissioner in order to prevent 
 the improper issue of a patent. — (29 Stat., 694, chap. 391.) 
 
 See note to section 4894, Revised Statutes. 
 
 [1897, June 4. Branch hydrographic offices.] That the Secretary of the 
 Navy is hereby authorized to establish branch hydrographic offices at Duluth, 
 in the State of Minnesota, Sault Sainte Marie, in the State of Michigan, and 
 Buffalo, in the State of New York, the same to be conducted under the pro- 
 visions of an Act entitled "An Act to establish a hydrographic office in the 
 Navy Department," approved June twenty-first, eighteen hundred and sixty- 
 six.— (30 Stat., 39, chap. 2.) 
 
 The act of June 21, 1866, referred to in this pro- hydrographic offices at Boston, New York, 
 
 \'ision, is embodied in section 431, R.evised Philadelphia, Baltimore, Norfolk, Savan- 
 
 Statutes. nah, New Orleans, San Francisco, (Portland, 
 
 See sections 431— i33, ReAosed Statutes, and Oregon), Portland (Maine), Chicago, Cleve- 
 
 notes thereto. land, Buffalo, Duluth, Sault Sainte Marie, 
 
 By act of March 3, 1921 (41 Stat., 1284), appro- Seattle, Panama, and Galveston, 
 priation was made for expenses of branch 
 
 [1897, June 7. Regulations for navigation of all harbors, rivers, and inland 
 waters of the United States, except the Great Lakes, etc., and except the Eed 
 River of the North, etc.] 
 
 Whereas the provisions of chapter eight hundred and two of the laws of eighteen 
 hundred and ninety, and the amendments thereto, adopting regulations 
 for preventing collisions at sea, apply to all waters of the United States 
 connected with the high seas navigable by seagoing vessels, except so far 
 as the navigation of any harbor, river, or inland waters is regulated by 
 special rules duly made by local authority; and 
 
 1251 
 
June 7, 1897. Pt. S. STATUTES AT LARGE. Navigation. 
 
 Whereas it is desirable that the regulations relating to the navigation of all 
 harbors, rivers, and inland waters of the United States, except the Great 
 Lakes and their connecting and tributary waters as far east as Montreal 
 and the Red River of the North and rivers emptying into the Gulf of Mexico 
 and their tributaries, shall be stated in one Act: Therefore, 
 
 Be it enacted hy the Senate and House of Representatives of the United States 
 of America in Congress assembled, That the following regulations for preventing 
 collision shall be followed by all vessels navigating all harbors, rivers, and inland 
 waters of the United States, except the Great Lakes and their connecting and 
 tributary waters as far east as Montreal and the Red River of the North and 
 rivers emptying into the Gulf of Mexico and their tributaries, and are hereby 
 declared special rules duly made by local authority: — (30 Stat., 96, chap. 4.) 
 
 Regulations for preventing collisions at sea: 
 
 See act of August 19, 1890 (26 Stat., 320), and 
 amendments thereto. 
 
 Navigation on the Red River of the North and 
 rivers emptying into the Gulf of Mexico 
 and their tributaries: See sections 4233 and 
 4412, Revised Statutes, and notes thereto. 
 
 Navigation on the Great Lakes and their con- 
 necting and tributary waters as far east as 
 Montreal: See act of February 8, 1895 (28 
 Stat., 645). 
 
 Navigation, Pearl Harbor, Hawaii: See act of 
 August 22, 1912 (37 Stat., 341). 
 
 Rules governing motor boats: See act of June 
 9, 1910 (36 Stat., 462). 
 
 See, generally, notes to sections 4233 and 4412, 
 Revised Statutes; and Navy Regulations 
 1920 (chap. 55), quoting laws, and regula- 
 tions of the Department of Commerce, "for 
 preventing collisions," etc. 
 
 Preliminary. 
 
 In the following rules every steam-vessel which is under sail and not 
 under steam is to be considered a sailing-vessel, and every vessel under steam 
 whether under sail or not, is to be considered a steam vessel. 
 
 The word ''steam- vessel" shall include any vessel propelled by machinery. 
 
 A vessel is ''under way," within the meaning of these rules, when she is 
 not at anchor, or made fast to the shore, or aground. 
 
 Rules Concerning Lights, and so forth. 
 
 The word "visible" in these rules, when applied to lights, shall mean 
 visible on a dark night with a clear atmosphere. 
 
 Article 1. The rules concerning lights shall be complied with in all 
 weathers from sunset to sunrise, and during such time no other lights which 
 may be mistaken for the prescribed lights shall be exhibited. — (30 Stat., 96, 
 chap. 4.) 
 
 Art. 2. A steam- vessel when under way shall carry — (a) On or in front 
 of the foremast, or, if a vessel without a foremast, then in the fore part of the 
 vessel, a bright white light so constructed as to show an unbroken light over 
 an arc of the horizon of twenty points of the compass, so fixed as to throw the 
 light ten points on each side of the vessel, namely, from right ahead to two points 
 abaft the beam on either side, and of such a character as to be visible at a 
 distance of at least five miles. 
 
 (b) On the starboard side a green light so constructed as to show an 
 
 unbroken light over an arc of the horizon of ten points of the compass, so fixed 
 
 as to throw the light from right ahead to two points abaft the beam on the 
 
 starboard side, and of such a character as to be visible at a distance of at least 
 
 two miles. 
 
 1252 
 
Navigation. Pt. 3. STATUTES AT LARGE. June 7, 1897. 
 
 (c) On the port side a red light so constructed as to show an unbroken 
 light over an arc of the horizon of ten points of the compass, so fixed as to throw 
 the light from right ahead to two points abaft the beam on the port side, and of 
 such a character as to be visible at a distance of at least two miles. 
 
 (d) The said green and red side-lights shall be fitted with inboard screens 
 projecting at least three feet forward from the light, so as to prevent these lights 
 from being seen across the bow. 
 
 (e) A sea-going steam-vessel when under way may carry an additional 
 white light similar in construction to the light mentioned in subdivision (a). 
 These two lights shall be so placed in line \vith the keel that one shall be at 
 least fifteen feet higher than the other, and in such a position with reference 
 to each other that the lower light shall be forward of the upper one. The 
 vertical distance between these lights shall be less than the horizontal distance, 
 (f) All steam- vessels (except sea-going vessels and ferry-boats), shall carry in 
 addition to green and red lights required by article two (b), (c), and screens as 
 required by article two (d), a central range of two white lights; the after-light 
 being carried at an elevation at least fifteen feet above the light at the head 
 of the vessel. The head-light shall be so constructed as to show an unbroken 
 light through twenty points of the compass, namely, from right ahead to two 
 points abaft the beam on either side of the vessel, and the after-light so as to 
 show all around the horizon. — (30 Stat., 96-97, chap. 4.) 
 
 Akt. 3. A steam-vessel when towing another vessel shall, in addition 
 to her side-lights, carry two bright white lights in a vertical fine one over 
 the other, not less than three feet apart, and when towing more than one 
 vessel shall carry an additional bright white light three feet above or below 
 such fights, if the length of the tow measuring from the stern of the towing 
 vessel to the stern of the last vessel towed exceeds six hundred feet. Each 
 of these lights shall be of the same construction and character, and shall be 
 carried in the same position as the white light mentioned in article two (a) 
 or the after range light mentioned in article two (f). 
 
 Such steam-vessel may carry a small white light abaft the funnel or after- 
 mast for the vessel towed to steer by, but such light shall not be visible for- 
 ward of the beam. — (30 Stat., 97, chap. 4.) 
 
 This act did not contain any article numbered four. 
 
 Art. 5. A sailing-vessel under way or being towed shall carry the same 
 fights as are prescribed by article two for a steam-vessel under way, with the 
 exception of the white lights mentioned therein, which they shall never carry. — 
 (30 Stat., 97, chap. 4.) 
 
 Art. 6. Whenever, as in the case of vessels of less than ten gross tons under 
 way during bad weather, the green and red side-lights can not be fixed, these 
 fights shall be kept at hand, lighted and ready for use; and shall, on the ap- 
 proach of or to other vessels, be exhibited on their respective sides in sufficient 
 time to prevent collision, in such manner as to make them most visible, and 
 so that the green light shall not be seen on the port side nor the red light on 
 the starboard side, nor, if practicable, more than two points abaft the beam 
 on their respective sides. To make the use of these portable lights more cer- 
 tain and easy the lanterns containing them shall each be painted outside with 
 
 1253 
 
June 7, 1897. Pt. S. STATUTES AT LARGE. Navigation. 
 
 the color of tlic light they respectively contain, and shall be provided with 
 proper screens. — (30 Stat., 97, chap. 4.) 
 
 Art. 7. Rowing boats, whether under oars or sail, shall have ready at 
 hand a lantern showing a white light which shall be temporarily exhibited 
 in sudicient time to prevent collision. — (30 Stat., 98, chap. 4.) 
 
 Art. 8. Pilot-vessels when engaged on their station on pilotage duty shall 
 not show the lights required for other vessels, but shall carry a white light at 
 the masthead, visible all around the horizon, and shall also exhibit a flare-up 
 light or flare-up lights at short intervals, which shall never exceed fifteen 
 minutes. 
 
 On the near approach of or to other vessels they shall have their side- 
 lights lighted, ready for use, and shall flash or show them at short intervals, 
 to indicate the direction in which they are heading, but the green light shall 
 not be shown on the port side nor the red light on the starboard side. 
 
 A pilot-vessel of such a class as to be obliged to go alongside of a vessel 
 to put a pilot on board may show the white light instead of carrying it at the 
 masthead, and may, instead of the colored lights above mentioned, have at 
 hand, ready for use, a lantern with a green glass on the one side and a red 
 glass on the other, to be used as prescribed above. 
 
 Pilot- vessels, when not engaged on their station on pilotage duty, shall 
 carry lights similar to those of other vessels of their tonnage. — (30 Stat., 98, 
 chap. 4.) 
 
 By act of February 19, 1900 (31 Stat., 30-31), 
 
 which was expressly "supplementary" 
 
 to this article, it was provided: "That a 
 
 steam pilot vessel, when engaged on her 
 
 station on pilotage duty and in waters of 
 
 the United States, and not at anchor, shall, 
 
 in addition to the lights required for all 
 
 pilot boats, carry at a distance of eight feet 
 
 below her white masthead light a red light, 
 
 Aisible all around the horizon and of such 
 
 a character as to be visible on a dark night 
 
 with a clear atmosphere at a distance of 
 
 at least two miles, and also the colored side 
 
 lights required to be carried by vessels 
 
 when under way. 
 "When engaged on her station on pilotage duty 
 
 and in waters of the United States, and at 
 
 anchor, she shall carry in addition to the 
 
 Art. 9. (a) Fishing-vessels of less than ten gross tons, when under way 
 and when not having their nets, trawls, dredges, or lines in the water, shall 
 not be obliged to carry the colored side-lights; but every such vessel shall, in 
 lieu thereof, have ready at hand a lantern with a green glass on one side and a 
 red glass on the other side, and on approaching to or being approached by 
 another vessel such lantern shall be exhibited in sufficient time to prevent 
 collision, so that the green light shall not be seen on the port side nor the red 
 light on the starboard side. 
 
 (b) All fishing-vessels and fishing-boats of ten gross tons or upward, 
 when under way and when not having their nets, trawls, dredges, or lines in 
 the water, shall carry and show the same lights as other vessels under way. 
 
 (c) All vessels, when trawling, dredging, or fishing with any kind of drag- 
 nets or lines, shall exhibit, from some part of the vessel where they can be best 
 
 1254 
 
 lights required for all pilot boats the red 
 light above mentioned, but not the colored 
 side lights. 
 
 "When not engaged on her station on pilotage 
 duty, she shall carry the same lights as 
 other steam vessels. 
 
 "Sec. 2. That this Act shall be construed as 
 supplementary to article eight of the Act 
 approved June seventh, eighteen hundred 
 and ninety-seven, entitled 'An Act to adopt 
 regulations for preventing collisions upon 
 certain harbors, rivers, and inland waters 
 of the United States,' and to article eight 
 of an Act approved August nineteenth, 
 eighteen hundred and ninety, entitled 
 'An Act to adopt regulations for preventing 
 collisions at sea.' " 
 
Navigation. Pt. 3. STATUTES AT LARGE. June 7, 1897. 
 
 seen, two lights. One of these lights shall be red and the other shall be white. 
 The red light shall be above the white light, and shall be at a vertical distance 
 from it of not less than six feet and not more than twelve feet; and the horizontal 
 distance between them, if any, shall not be more than ten feet. These two 
 lights shall be of such a character and contained in lanterns of such construction 
 as to be visible all round the horizon, the white light a distance of not less 
 than three miles and the red light of not less than two miles. 
 
 (d) Rafts, or other water craft not herein provided for, navigating by 
 hand power, horse power, or by the current of the river, shall carry one or 
 more good w^iite lights, which shall be placed in such manner as shall be pre- 
 scribed by the Board of Supervising Inspectors of Steam Vessels. — (30 Stat., 98, 
 chap. 4.) 
 
 Art. 10. a vessel which is being overtaken by another, except a steam- 
 vessel with an after range-light showing all around the horizon, shall show from 
 her stern to such last-mentioned vessel a white light or a flare-up light. — (30 
 Stat., 98, chap. 4.) 
 
 Art. 11. a vessel under one hundred and fifty feet in length when at 
 anchor shall carry forward, where it can best be seen, but at a height not exceed- 
 ing twenty feet above the hull, a white light, in a lantern so constructed as to 
 show a clear, uniform, and unbroken light visible all around the horizon at a 
 distance of at least one mile. 
 
 A vessel of one hundred and fifty feet or upwards in length when at anchor 
 shall carry in the forward part of the vessel, at a height of not less than twenty 
 and not exceeding forty feet above the hull, one such light, and at or near the 
 stern of the vessel, and at such a height that it shall be not less than fifteen feet 
 lower than the forward light, another such light. 
 
 The length of a vessel shall be deemed to be the length appearing in her 
 certificate of registry. — (30 Stat., 98-99, chap. 4.) 
 
 Art. 12. Every vessel may, if necessary, in order to attract attention, 
 in addition to the lights which she is by these rules required to carry, show a 
 flare-up light or use any detonating signal that can not be mistaken for a dis- 
 tress signal. — (30 Stat., 99, chap. 4.) 
 
 Art. 13. Nothing in these rules shall interfere with the operation of any 
 special rules made by the Government of any nation with respect to additional 
 station and signal lights for two or more ships of war or for vessels sailing under 
 convoy, or with the exhibition of recognition signals adopted by shipowners, 
 which have been authorized by their respective Governments, and duly regis- 
 tered and published.— (30 Stat., 99, chap. 4.) 
 
 Art. 14. A steam-vessel proceeding under sail only, but having her 
 funnel up, may carry in daytime, forward, where it can best be seen, one black 
 ball or shape two feet in diameter. — (30 Stat., 99, chap. 4.) 
 
 Sound Signals for Fog, and so forth. 
 
 Art. 15. All signals prescribed by this article for vessels under way shall 
 be given: 
 
 1. By ''steam- vessels" on the whistle or siren. 
 
 2. By ''sailing-vessels" and "vessels towed" on the fog horn. 
 
 1255 
 
June 7, 1897. Pt. S. STATUTES AT LARGE. Navigation. 
 
 The words " prolonged blast" used in this article shall mean a blast of from 
 four to six seconds duration. 
 
 A steam-vessel shall be provided with an efficient whistle or siren, sounded 
 by steam or by some substitute for steam, so placed that the sound may not be 
 intercepted by any obstruction, and with an efficient fog horn; also with an 
 efficient bell. A sailing-vessel of twenty tons gross tonnage or upward shall be 
 provided with a similar fog horn and bell. 
 
 In fog, mist, falling snow, or heavy rainstorms, whether by day or night, 
 the signals described in this article shall be used as follows, namely: 
 
 (a) A steam-vessel under way shall sound, at intervals of not more than one 
 minute, a prolonged blast. 
 
 (c) A sailing-vessel imder way shall sound, at intervals of not more than one 
 minute, when on the starboard tack, one blast; when on the port tack, two blasts 
 in succession, and when with the wind abaft the beam, three blasts in succession. 
 
 (d) A vessel when at anchor shall, at intervals, of not more than one 
 minute, ring the bell rapidly for about five seconds. 
 
 (e) A steam- vessel when towing, shall, instead of the signals prescribed in 
 subdivision (a) of this article, at intervals of not more than one minute, sound 
 three blasts in succession, namely, one prolonged blast followed by two short 
 blasts. A vessel towed may give this signal and she shall not give any other. 
 
 (f) All rafts or other water craft, not herein provided for, navigating by 
 hand power, horse power, or by the current of the river, shall sound a blast of 
 the fog-horn, or equivalent signal, at intervals of not more than one minute. — 
 (30 Stat., 99, chap. 4.) 
 
 Speed of Ships to be Moderate in Fog, and so forth. 
 
 Art. 16. Every vessel shall, in a fog, mist, falling snow, or heavy rain- 
 storms, go at a moderate speed, having careful regard to the existing circum- 
 stances and conditions. 
 
 A steam- vessel hearing, apparently forward of her beam, the fog-signal of 
 a vessel the position of which is not ascertained shall, so far as the circumstances 
 of the case admit, stop her engines, and then navigate with caution until danger 
 of collision is over. — (30 Stat., 99, chap. 4.) 
 
 Steering and Sailing Rules. 
 
 preliminary risk of collision. 
 
 Risk of collision can, when circumstances permit, be ascertained by carefully 
 watching the compass bearing of an approaching vessel. If the bearing does 
 not appreciably change, such risk should be deemed to exist. 
 
 Art. 17. When two sailing-vessels are approaching one another, so as to 
 involve risk of collision, one of them shall keep out of the way of the other as 
 follows, namely: 
 
 (a) A vessel which is running free shall keep out of the way of a vessel 
 which is close-hauled. 
 
 (b) A vessel which is closed-hauled on the port tack shall keep out of the 
 way of a vessel which is closed-hauled on the starboard tack. 
 
 1256 
 
Navigation. Pt. S. STATUTES AT LARGE. June 7, 1897. 
 
 (c) When both are running free, with the wind on different sides, the 
 vessel which has the wind on the port side shall keep out of the way of the 
 other. 
 
 (d) When both are running free, with the wind on the same side, the 
 vessel which is to the windward shall keep out of the way of the vessel which 
 is to the leeward. 
 
 (e) A vessel which has the wind aft shall keep out of the way of the other 
 vessel. — (30 Stat., 100, chap. 4.) 
 
 Art. 18. Rule I. When steam- vessels are approaching each other head 
 and head, that is, end on, or nearly so, it shall be the duty of each to pass on 
 the port side of the other; and either vessel shall give, as a signal of her intention, 
 one short and distinct blast of her whistle, which the other vessel shall answer 
 promptly by a similar blast of her whistle, and thereupon such vessels shall pass 
 on the port side of each other. But if the courses of such vessels are so far on 
 the starboard of each other as not to be considered as meeting head and head, 
 either vessel shall immediately give two short and distinct blasts of her whistle, 
 which the other vessel shall answer promptly by two similar blasts of her whistle, 
 and they shall pass on the starboard side of each other. 
 
 The foregoing only applies to cases where vessels are meeting end on or 
 nearly end on, in such a manner as to involve risk of collision; in other words, 
 to cases in which, by day, each vessel sees the masts of the other in a line, or 
 nearly in a line, with her own, and by night to cases in which each vessel is in 
 such a position as to see both the sidelights of the other. 
 
 It does not apply by day to cases in which a vessel sees another ahead 
 crossing her own course, or by night to cases where the red light of one vessel 
 is opposed to the red light of the other, or where the green light of one vessel 
 is opposed to the green light of the other, or where a red light without a green 
 light or a green light without a red light, is seen ahead, or where both green and 
 red lights are seen anywhere but ahead. — (30 Stat., 100, chap. 4.) 
 
 This article did not contain any Rule II, IV, VI, or VII. 
 
 Rule III. If, when steam-vessels are approaching each other, either 
 vessel fails to understand the course or intention of the other, from any cause, 
 the vessel so in doubt shall immediately signify the same by giving several 
 short and rapid blasts, not less than four, of the steam-whistle. — (30 Stat., 
 100, chap. 4.) 
 
 Rule V. Whenever a steam-vessel is nearing a short bend or curve in the 
 channel, where, from the height of the banks or other cause, a steam-vessel 
 approaching from the opposite direction can not be seen for a distance of half 
 a mile, such steam-vessel, when she shall have arrived within half a mile of 
 such curve or bend, shall give a signal by one long blast of the steam whistle, 
 which signal shall be answered by a similar blast, given by any approaching 
 steam-vessel that may be within hearing. Should such signal be so answered 
 by a steam-vessel upon the farther side of such bend, then the usual signals for 
 meeting and passing shall immediately be given and answered; but, if the first 
 alarm signal of such vessel be not answered, she is to consider the channel clear 
 and govern herself accordingly. 
 
 1257 
 
June 7. 1897. Pt. S. STATUTES AT LARGE. Navigation. 
 
 When steam-vcssols are moved from their docks or berths, and other 
 boats are liable to pass from any direction toward them, they shall give the same 
 signal as in the case of vessels meeting at a bend, but immediately after clearino- 
 the berths so as to be fully in sight they shall be governed by the steering and 
 sailing rules.— (30 Stat., 100-101, chap. 4.) 
 
 Kri.E MIL ^\1ien steam-vessels are running in the same direction, and 
 the vessel which is astern shall desire to pass on the right or starboard hand of 
 the vessel ahead, she shall give one short blast of the steam-whistle, as a signal 
 of such desire, and if the vessel ahead answers with one blast, she shall put her 
 helm to port; or if she shall desire to pass on the left or port side of the vessel 
 ahead, she shall give two short blasts of the steam-whistle as a signal of such 
 desire, and if the vessel ahead answers with two blasts, shall put her helm to star- 
 board; or if the vessel ahead does not think it safe for the vessel astern to at- 
 tempt to pass at that point, she shall immediately signify the same by giving 
 several short and rapid blasts of the steam-whistle, not less than four, and 
 under no circumstances shall the vessel astern attempt to pass the vessel ahead 
 until such time as they have reached a point where it can be safely done, when 
 said vessel ahead shall signify her willingness by blowing the proper signals. 
 The vessel ahead shall in no case attempt to cross the bow or crowd upon the 
 course of the passing vessel. — (30 Stat., 101, chap. 4.) 
 
 Rule IX. The whistle signals provided in the rules under this article, for 
 steam-vessels meeting, passing, or overtaking, are never to be used except 
 when steamers are in sight of each other, and the course and position of each 
 can be determined in the daytime by a sight of the vessel itself, or by night by 
 seeing its signal lights. In fog, mist, falling snow or heavy rainstorms, when 
 vessels can not so see each other, fog-signals only must be given. — (30 Stat., 
 101, chap. 4.) 
 
 Art. 19. When two steam-vessels are crossing, so as to involve risk of 
 collision, the vessel which has the other on her own starboard side shall keep 
 out of the way of the other. — (30 Stat., 101, chap. 4.) 
 
 Art. 20. When a steam-vessel and a sailing-vessel are proceeding in such 
 directions as to involve risk of collision, the steam-vessel shall keep out of the 
 way of the sailing-vessel. — (30 Stat., 101, chap. 4.) 
 
 Art. 21. Where, by any of these rules, one of the two vessels is to keep out 
 of the way, the other shall keep her course and speed. — (30 Stat., 101, chap. 4.) 
 
 Art. 22. Every vessel which is directed by these rules to keep out of the 
 way of another vessel shall, if the circumstances of the case admit, avoid cross- 
 ing ahead of the other. — (30 Stat., 101, chap. 4.) 
 
 Art. 23. Every steam- vessel which is directed by these rules to keep out 
 of the way of another vessel shall, on approaching her, if necessary, slacken her 
 speed or stop or reverse. — (30 Stat., 101, chap. 4.) 
 
 Art. 24. Notwithstanding anything contained in these rules every vessel, 
 overtaking any other, shall keep out of the way of the overtaken vessel. 
 
 Every vessel coming up with another vessel from any direction more than 
 two points abaft her beam, that is, in such a position, with reference to the vessel 
 which she is overtaking that at night she would be unable to see either of that 
 vessel's side-lights, shall be deemed to be an overtaking vessel; and no subse- 
 sequent alteration of the bearing between the two vessels shall make the over- 
 
 1258 
 
Navigation. Pt. 3. STATUTES AT LARGE. June 7, 1897. 
 
 taking vessel a crossing vessel within the meaning of these rules, or relieve her 
 of the duty of keeping clear of the overtaken vessel until she is finally past and 
 clear. 
 
 As by day the overtaking vessel can not always know with certainty 
 whether she is forward of or abaft this direction from the other vessel she should, 
 if in doubt, assume that she is an overtaking vessel and keep out of the way. — 
 (30 Stat., 101, chap. 4.) 
 
 Art. 25. In narrow channels every steam-vessel shall, when it is safe and 
 practicable, keep to that side of the fair-way or mid-channel which lies on the 
 starboard side of such vessel. — (30 Stat., 101, chap. 4.) 
 
 Art. 26. — Sailing-vessels under way shall keep out of the way of sailing- 
 vessels or boats fishing with nets, or lines, or trawls, This rule shall not give 
 to any vessel or boat engaged in fishing the right of obstructing a fair-way 
 used by vessels other than fisliing-vessels or boats. — (30 Stat., 102, chap. 4.) 
 
 Art. 27. In obeying and construing these rules due regard shall be had 
 to all dangers of navigation and collision, and to any special circumstances 
 which may render a departure from the above rules necessary in order to 
 avoid immediate danger. — (30 Stat., 102, chap. 4.) 
 
 Sound Signals for Vessels in Sight of one Another. 
 
 Art. 28. When vessels are in sight of one another a steam-vessel under 
 way whose engines are going at full speed astern shall indicate that fact by 
 three short blasts on the whistle. — (30 Stat., 102, chap. 4.) 
 
 No Vessel Under any Circumstances to Neglect Proper Precautions. 
 
 Art. 29. Nothing in these rules shall exonerate any vessel, or the o^^^le^ 
 or master or crew thereof, from the consequences of any neglect to carry lights 
 or signals, or of any neglect to keep a proper lookout, or of the neglect of any 
 precaution wliich may be required by the ordinary practice of seamen, or by 
 the special chcumstances of the case. — (30 Stat., 102, chap. 4.) 
 
 Art. 30. The exliibition of any light on board of a vessel of war of the 
 United States or a revenue cutter may be suspended whenever, in the opinion 
 of the Secretary of the Navy, the commander in chief of a squadron, or the 
 commander of a vessel acting singly, the special character of the service may 
 require it.— (30 Stat., 102, chap. 4.) 
 
 Distress Signals. 
 
 Art. 31. When a vessel is in distress and requires assistance from other 
 vessels or from the shore the following shall be the signals to be used or displayed 
 by her, either together or separately, namely: 
 
 IN THE daytime. 
 
 A continuous sounding wdth any fog-signal apparatus, or firing a gun. 
 
 AT NIGHT. 
 
 First. Flames on the vessel as from a burning tar barrel, oil barrel, and so 
 forth. 
 
 54641°— 22 80 1259 
 
See note above, under section 1 of this act 
 (30 Stat., 9G). 
 
 June 7, 1897. Pt. S. STATUTES AT LARGE. Navigation. 
 
 Second. A contiiiiioiis sounding with any fog-signal apparatus, or firing 
 a gun.— (30 Stat., 102, chap. 4.) 
 
 [1897, June 7, sec. 2. Rules to be established as to steam vessels passing- 
 each other, lights and day signals, etc.] That the supervising inspectors of 
 steam vessels and the Supervising Inspector General shall establish such rules 
 to be observed by steam vessels in passing each other and as to the lights to 
 be carried by ferryboats and by barges and canal boats when in tow of steam 
 vessels, and as to the lights and day signals to be carried by vessels, dredges of 
 all types, and vessels working on wrecks by other obstruction to navigation 
 or moored for submarine operations, or made fast to a sunken object which 
 may drift with the tide or be towed, not inconsistent with the provisions of 
 this Act, as they from time to time may deem necessary for safety, which rules 
 when approved by the Secretary of Commerce are hereby declared special 
 rules duly made by local authority, as provided for in article thirty of chapter 
 eight hundred and two of the laws of eighteen hundred and ninety. Two 
 printed copies of such rules shall be furnished to such ferryboats, barges, 
 dredges, canal boats, vessels working on wrecks and steam vessels, which rules 
 shall be kept posted up in conspicuous places in such vessels, barges, dredges, 
 and boats.— (30 Stat., 102, chap. 4; 38 Stat., 381, chap. 98.) 
 
 This section was expressly amended and reen- 
 acted to read as above, by act of May 25, 
 1914 (38 Stat., 381). 
 
 [1897, June 7, sec. 3. Penalty for pilots, etc.] That every pilot, engineer, 
 miate, or master of any steam-vessel, and every master or mate of any barge or 
 canal-boat, who neglects or refuses to observe the provisions of this Act, or the 
 regulations estabhshed in pursuance of the preceding section, shall be liable 
 to a penalty of fifty dollars, and for all damages sustained by any passenger 
 in his person or baggage by such neglect or refusal: Provided, That nothing 
 herein shall relieve any vessel, owner or corporation from any liability incurred 
 by reason of such neglect or refusal. — (30 Stat., 102-103, chap. 4.) 
 
 [1897, June 7, sec. 4. Penalty for vessels.] That every vessel that shall be 
 navigated without complying with the provisions of this Act shall be liable to 
 a penalty of two hmidred dollars, one-half to go to the informer, for which sum 
 the vessel so navigated shall be liable and may be seized and proceeded against 
 by action in any district court of the United States having jurisdiction of the 
 offense.— (30 Stat., 103, chap. 4.) 
 
 [1897, June 7, sec. 5. Repeal of prior laws and regulations; exceptions.] 
 That sections forty-two hundred and thirty-three and forty-four hundred and 
 twelve (with the regulations made in pursuance thereof, except the rules and 
 regulations for the government of pilots of steamers navigating the Red River 
 of the North and rivers emptying into the Gulf of Mexico and their tributaries, 
 and except the rules for the Great Lakes and their connecting and tributary 
 waters as far east as Montreal), and forty-four hundred and tliirteen of the 
 Revised Statutes of the United States, and chapter two hundred and two of 
 the laws of eighteen hundred and ninety-three, and sections one and three of 
 chapter one hundred and two of the laws of eighteen hundred and ninety-five, 
 and sections five, twelve, and thirteen of the Act approved March third, eighteen 
 hundred and ninety-seven, entitled "An Act to amend the law^s relating to navi- 
 
 1260 
 
Pt. 3. STATUTES AT LARGE. May 4, 1898. 
 
 gation," and all amendments thereto, are hereby repealed so far as the harbors, 
 rivers, and inland waters aforesaid (except the Great Lakes and their connect- 
 ing and tributary waters as far east as Montreal and the Red River of the North 
 and rivers emptying into the Gulf of Mexico, and tlieir tributaries) are con- 
 cerned. — (30 Stat., 103, chap. 4.) 
 
 [1898, Mar. 15, sec. 3. law books, etc., purchase from contingent funds.] 
 That hereafter law books, books of reference, and periodicals for use of any 
 Executive Department, or other Government establishment not under an 
 Executive Department, at the seat of Government, shall not be purchased or paid 
 for from any appropriation made for contingent expenses or for any specific or 
 general purpose unless such purchase is authorized and payment therefor 
 specifically provided in the law granting the appropriation. — (30 Stat., 316, 
 chap. 68.) 
 
 See act of January 12, 1895, section 95 (28 
 Stat., 623), as to exchange of books and 
 documents. 
 
 See section 19.3, Re\"ised Statutes, and notes 
 thereto, as to use of contingent funds. 
 
 [1898, May 4. Assistant to chief, Bureau of Ordnance.] That a line officer 
 of the Navy may be detailed temporarily as assistant to the Chief of the Bureau 
 of Ordnance in the Navy Department, and that such officer during such detail 
 shall receive the liighest pay of his grade, and in the case of the death, resigna- 
 tion, absence, or sickness of the cliief of the bureau shall, unless otherwise 
 directed by the President, as provided by sections one and seventy-nine of the 
 Revised Statutes, perform the duties of such chief until his successor is appointed 
 or such absence or sickness shall cease, provided that, in case of the death, 
 sickness, or absence on duty of the chief of the bureau and the assistant thereto, 
 the chief clerk shall act as cliief of the bureau. — (30 Stat., 373, chap. 234.) 
 
 See sections 177-182. and 421, Re\'ised Statutes, and notes thereto. 
 
 [1898, May 4. Pensions of inmates. Naval Home and naval hospitals.] 
 Whenever any officer, seaman, or marine entitled to a pension is admitted to the 
 Naval Home at Philadelphia, or to a naval hospital, his pension, while he 
 remains there, shall be deducted from his accounts and paid to the Secretary 
 of the Navy for the benefit of the fund from wliich such home or hospital, 
 respectively, is maintained; and section forty-eight hundred and thirteen of 
 the Revised Statutes of the United States is hereby amended accordingly. — 
 (30 Stat., 377, chap. 234.) 
 
 See notes to sections 4756, 4757, and 4813, This enactment was repeated in act of March 
 
 Revised Statutes. 
 
 3, 1899 (30 Stat., 1027). 
 
 [1898, May 4. Acting assistant surgeons.] The President is hereby author- 
 ized to appoint for temporary service twenty-five acting assistant surgeons, 
 who shall have the relative rank and compensation of assistant surgeons. — (30 
 Stat., 380, chap. 234.) 
 
 See section 1411. Re^ised Statutes, and note thereto. 
 
 [1898, May 4. Names of battle ships and monitors.] That hereafter all 
 first-class battle ships and monitors owned by the United States shall be named 
 for the States, and shall not be named for any city, place, or person until the 
 names of the States, shall have been exhausted : Provided, That nothing herein 
 
 1261 
 
June 17, 1898. Pt. S. STATUTES AT LARGE. 
 
 contained shall be so construed as to interfere with the names of States already 
 
 assigned to any such battle ship or monitor. — (30 Stat., 390, chap. 234.) 
 
 See note to section 1531, Re\i8ed Statutes. as to monitors, by act of May 13, 1908 (35 
 
 Tliis provision was expressly repealed, Sfcat., 159). 
 
 [1898, May 4. Medals of honor, enlisted men; rosettes and ribbons.] That 
 the Secretary of the Navy be, and he is hereby, authorized to issue to any 
 person to whom a medal of honor has been awarded, or may hereafter be 
 awartlod, under the provisions of the' Acts approved December twenty-first, 
 eighteen hundred and sixty-one, and July sixteenth, eighteen hundred and 
 sixty-two, a rosette or knot to be worn in lieu of the medal, and a ribbon to be 
 worn with the medal; said rosette or knot and ribbon to be each of a pattern 
 to be prescribed and established by the President of the United States, and any 
 appropriation that may hereafter be available for the contingent expenses of the 
 Navy Department is hereby made available for the purposes of this Act: 
 Provided, That whenever a ribbon issued under the provisions of this Act shall 
 have been lost, destroyed, or rendered unfit for use, without fault or neglect on 
 the part of the person to whom it was issued, the Secretary of the Navy shall 
 cause a new ribbon to be issued to such person without charge therefor. — 
 (30 Stat., 741, Res. No. 30.) 
 
 The act of December 21, 1861, section 7 (12 
 Stat., 330), referred to in this resolution, 
 was temporary legislation; the act of Jiily 
 16, 1862 (12 Stat., 584), also referred to 
 herein, was superseded by an identical pro- 
 vision contained in the act of May 17, 1864, 
 
 section 3 (13 Stat., 79-80), which latter en- 
 actment was embodied in section 1407, 
 Revised Statutes, see that section and note 
 thereto; see also act of F'ebruary 4, 1919 (40 
 Stat., 1056-1057), for later provisions on the 
 subject. 
 
 [1898, June 17. Hospital Corps established; organization of.] That a hos- 
 pital corps of the United States Navy is hereby established, and shall consist of 
 pharmacists hospital stewards, hospital apprentices (first class), and hospital 
 apprentices; and for this purpose the Secretary of the Navy is empowered to 
 appoint twenty-five pharmacists with the rank, pay, and privileges of warrant 
 ofiicers, removable in the discretion of the Secretary, and to enlist, or cause to 
 be enlisted, as many hospital stewards, hospital apprentices (first class), and 
 hospital apprentices as in liis judgment may be necessary, and to limit or fix 
 the number, and to make such regulations as may be required for their enlist- 
 ment and government. Enlisted men in the Navy or the Marine Corps shall be 
 eligible for transfer to the hospital corps, and vacancies occurring in the grade 
 of pharmacist shall be filled by the Secretary of the Navy by selection from those 
 holding the rate of hospital steward. — (30 Stat., 474-475, chap. 463.) 
 
 Sec. 2. That all necessary hospital and ambulance service at naval hos- 
 pitals, naval stations, navy-yards, and marine barracks, and on vessels of the 
 Navy, Coast Survey, and Fish Commission, shall be performed by the members 
 of said corps, and the corps shall be permanently attached to the Medical 
 Department of the Navy, and shall be included in the effective strength of the 
 Navy and be counted as a part of the enlisted force provided by law, and shall 
 be subject to the laws and regulations for the govermnent of the Navy. — (30 
 Stat., 475, chap. 463.) 
 
 Sec. 3. That the pay of hospital stewards shall be sixty dollars a month, 
 the pay of hospital apprentices (first class) thirty dollars a month, and the pay 
 of hospital apprentices twenty dollars a month, with the increase on account of 
 
 1262 
 
Personnel Act. 
 
 Pt. S. STATUTES AT LARGE. 
 
 Mar. 3, 1899. 
 
 length of service as is now or may hereafter be allowed by law to other enlisted 
 men in the Navy. — (30 Stat., 475, chap. 463.) 
 
 Sec 4. That all benefits derived from existing laws, or that may hereafter 
 be allowed by law, to other warrant officers or enlisted men in the Navy shall 
 be allowed in the same manner to the warrant officers or enlisted men in the 
 hospital corps of the Navy. — (30 Stat., 475, chap. 463.) 
 
 Sec. 5. That all acts and parts of acts, so far as they conflict with the pro- 
 visions of this Act, are hereby repealed. — (30 Stat., 475, chap. 463.) 
 
 Section 3 of this act was expresslv repealed bv 
 act of August 29, 191G (39 Stat., 573), which 
 contained othei* provisions on the subject of 
 pay of enlisted men of the Hospital Corps. 
 (See note to section 1569, Revised Statutes, 
 as to pay of enlisted men.) 
 
 The authorized strength of the Hospital Corps 
 was fixed by act of August 29, 1916 (39 
 Stat., 572), and its duties were prescribed 
 by the same act (39 Stat., 573). superseding 
 
 the provisions of sections 1 and 2 of this act 
 on the same subject. 
 
 The pav of pharmacists was also prescribed by 
 act'of August 29, 1916 (39 Stat., 573), which 
 further provided for the promotion of 
 pharmacists to chief pharmacists, thereby 
 superseding a provision in the act of August 
 22, 1912 (37 Stat., 345), which had previous- 
 ly authorized such promotion. 
 
 See note to section 1405, Revised Statutes. 
 
 [1898, July 7. Leaves of absence, Executive Departments.] Nothing con- 
 tained in section seven of the Act making appropriations for legislative, execu- 
 tive, and judicial expenses of the Government for the fiscal year eighteen 
 hundred and ninety-nine, approved March fifteenth, eighteen hundred and 
 ninety-eight, shall be construed to prevent the head of any Executive Depart- 
 ment from granting thirty days' annual leave with pay in any one year to a 
 clerk or employee, notwithstanding such clerk or employee may have had 
 during such year not exceeding thirty days' leave with pay on account of 
 sickness as provided in said section seven. — (30 Stat., 653, chap. 571.) 
 
 See the 
 
 The act of IMarch 15, 1898, section 7 (30 Stat., 
 316-317), referred to herein, expressly 
 amended and reenacted section 5 of the act 
 
 of March 3, 1893 (27 Stat., 715). 
 latter act and note thereto. 
 
 [1899, Feb. 24, sec. 4. Leaves of absence, Executive Departments.] That 
 the thirty days' annual leave of absence with pay in any one year to clerks and 
 employees in the several Executive Departments authorized by existing law 
 shall be exclusive of Sundays and legal holidays. — (30 Stat., 890, chap. 187.) 
 
 See act of March 3, 1893, section 5 (27 Stat., 715), and note thereto. 
 
 [1899, Mar. 3, sees. 1-6. Personnel Act; Engineer Corps transferred to line.] 
 
 officer attained the same relative rank of cap- 
 tain, commander, or lieutenant-commander are 
 the same, the engineer officer shall take rank 
 after such line officer. — (30 Stat., 1005, chap, 
 413.) 
 
 "Sec. 3. That engineer officers who com- 
 pleted their Naval Academy course of four 
 years from eighteen hundred and seventy-eight 
 to eighteen himdred and eighty, both inclusive, 
 shall take rank in the line as determined by the 
 Academic Board under the Department's in- 
 stnictions of Decemlier first, eighteen hundred 
 and ninety-seven; and engineer officers who 
 completed their Naval Academy course of four 
 years in eighteen hundred and eighty-one and 
 eighteen hundred and eighty-two shall take 
 rank in the line as determined by the merit 
 roll of graduating classes at the conclusion of 
 the six years' course, June, eighteen hundred 
 and eighty-three and eighteen himdred and 
 
 These sections provided as follows: 
 "That the officers constituting the Engineer 
 Corps of the Na\-y be, and are hereby, trans- 
 ferred to the line of the Navy, and shall be 
 commissioned accordinglv. (30 Stat., 1004, 
 chap. 413.) 
 
 "Sec. 2. That engineer officers holding the 
 relative rank of captain, commander, and 
 lieutenant-commander shall take rank in the 
 line of the Navy according to the dates at which 
 they attained such relative rank. Engineer 
 officers graduated from the Naval Academy 
 from eighteen hundred and sixty-eight to 
 eighteen hundred and seventy-six, both years 
 inclusive, shall take rank in the line next after 
 officers in the line who graduated from the 
 Naval Academy in the same year with them: 
 Provided, That when the date of a line officer's 
 commission as captain, commander, or lieuten- 
 ant-commander and the date when the engineer 
 
 1263 
 
Mar. 3, 1899. 
 
 rt. 3. STATUTES AT LARGE. 
 
 Personnel Act. 
 
 eighty-four: Provided, Tliat those engineer 
 oflk'ora wlio were appointed from ci\il life, and 
 whose status is not fixed l)y section two of this 
 Act, shall take rank with other line officers ac- 
 cording to the dates of their first commissions, 
 respectively: And provided further. That the 
 engineer officers wlio completed their Naval 
 Academy com'se of four years in eighteen hun- 
 dred and eighty-one and eighteen hundred and 
 eighty- two shall retain among themselves the 
 same relative standing as shown on the Na^'y 
 register at the date of the passage of this Act. — 
 (30 Stat. 1005, chap. 413.) 
 
 "Sec. 4. That engineer officers transferred 
 to the line who are below the rank of com- 
 mander, and extending down to, but not 
 including, the first engineer who entered the 
 Naval Academy as cadet midshipman, shall 
 perform sea or shore duty, and such duty shall 
 be such as is performed by engineers in the 
 Navy: Promded, That any officer described in 
 this section may, upon his own application, 
 made within six months after the passage of 
 this Act, be assigned to the general duties of the 
 line, if he pass the examination now provided 
 by law as preliminary to promotion to the grade 
 he then holds, failure to pass not to displace 
 such officer from the list of officers for sea or 
 shore duty such as is performed by engineers 
 in the Navy\— (30 Stat., 1005, chap. 413.) 
 
 "Sec. 5. That engineer officers transferred 
 to the line to perform engineer duty only who 
 rank as, or above, commander, or who subse- 
 
 quently attain such rank, shall perform shore 
 duty only. (30 Stat., 1005, chap. 413.) 
 
 "Sec 6. That all engineer officers not pro- 
 vided for in sections four and five transferred to 
 the line shall perform the duties ixow performed 
 by line officers of the same grade: Provided, 
 That after a period of two years subsequent 
 to the passage of this Act they shall be required 
 to pass the examinations now provided by law 
 as preliminary to promotion to the grade they 
 then hold, and subject to existing law governing 
 examinations for promotion." (30 Stat., 1005, 
 chap. 413.) 
 
 See sections 1390-1394, and 1521, 
 Re\'ised Statutes, and notes thereto, for laws 
 and decisions relating to officers of the former 
 Engineer Corps. 
 
 Duties of former engineer oflB-cers. — 
 Former engineer officers who, under this act, 
 performed engineering duty only, on shore 
 only, were made eligible for any shore duty 
 compatible with their rank and grade to which 
 the Secretary of the Navy may assign them, bv 
 act of June 30, 1914 (38 Stat., 394), reenacted 
 and made permanent by act of March 3, 1915 (38 
 Stat., 930). See notes to section 1390 and 1404, 
 Revised Statutes. 
 
 Line oflicers for engineering duty 
 only. — The appointment and assignment of line 
 officers for engineering duty only were author- 
 ized by acts of Febniary 16, 1914, section 21 
 (38 Stat., 283), and August 29, 1916 (39 Stat., 
 580). 
 
 [1899, Mar. 3, sec. 7. Number of line officers; commodores omitted.] 
 
 This provision read as follows: 
 "That the active list of the line of the Navy, 
 as constituted by section one of this Act, shall 
 be composed of eighteen rear-admirals, seventy 
 captains, one hundred and twelve commanders, 
 one hundred and seventy lieutenant-comman- 
 ders, three hundred lieutenants, and not more 
 
 than a total of three himdred and fifty lieuten- 
 ants (jimior grade) and ensigns." — (30 Stat., 
 1005, chap. 413.) 
 
 See sections 1362-1363, Revised Statutes, 
 and note thereto, as to interpretation of this 
 pro^iso, and for later laws relating to the 
 number of line officers. 
 
 [1899, Mar. 3, sec. 7. Pay of rear admirals, lower nine.] 
 
 See section 1556, ReAdsed Statutes, and 
 note thereto, under "4, Rear admirals," for 
 interpretation of this clause, and for later laws 
 relating to pay of rear admirals. 
 
 This proviso read as follo-ws: 
 
 "Provided, That each rear-admiral embraced 
 in the nine lower numbers of that grade shall 
 receive the same pay and allowance as are now 
 allowed a brigadier-general in the Army." — 
 (30 Stat., 1005, chap. 413.) 
 
 [1899, Mar. 3, sec. 7. Promotion of ensigns.] Officers, after performing three 
 years' service in the grade of ensign, shall, after passing the examinations now 
 required by law, bo eligible to promotion to the grade of lieutenant (junior 
 grade).— (30 Stat., 1005, chap. 413.) 
 
 By act of June 4, 1920, section 5 (41 Stat., 836), 
 it was provided that, imtil June 30, 1923, 
 promotions to lieutenant (jimior grade) 
 may be made without regard to length of 
 service. 
 
 As to examinations for promotion, see sections 
 1493-1505, ReA^ised Statutes, and notes 
 thereto. 
 
 [1899, Mar. 3, sec. 7. Chiefs of bureaus, rank and pay.] 
 
 This proviso read as follows: 
 
 ''Provided, That when the office of chief of 
 bureau is filled bv an officer below the rank of 
 rear-admiral, said officer shall, while holding 
 
 said office, have the rank of rear-admiral and 
 receive the same pay and allowance as are now 
 allowed a brigadier-general in the Army." — 
 (30 Stat., 1005-1006, chap. 413.) 
 
 1264 
 
Personnel Act. 
 
 Pt. 3. STATUTES AT LARGE. 
 
 Mar. 3, 1899. 
 
 See sections 421, 1471, 1472, and 1565, 
 Revised Statutes, and notes thereto, for laws 
 and decisions relating to chiefs of bureaus. 
 
 By act of May 13, 1908 (35 Stat., 128), it was 
 pro\dded that the pay and allowances of chiefs 
 of bureaus "shall be the highest pay of the 
 grade to which_ they belong, and not below 
 that of rear admiral of the lower nine' '; by act 
 of June 24, 1910 (36 Stat., 607), it was provided 
 that their pay and allowances shall be the 
 
 highest shore duty pay and allowances of rear 
 admiral of the lower nine; said provision of 
 June 24, 1910, was repealed by act of August 22, 
 1912 (37 Stat., 328), which made no other pro- 
 vision on the subject; by act of July 1, 1918 (40 
 Stat., 717), chiefs of bureaus in the Navy De- 
 partment are to have corresponding rank and 
 receive the same pay and allowances as chiefs 
 of bureaus in the War Department. 
 
 [1899, Mar. 3, sec. 7. Retirement of commodores.] 
 
 See sections 421, 1362, 1473, and 1481, 
 
 Revised Statutes, and notes thereto, for laws 
 and decisions relating to retirement of officers 
 with the rank of commodore. Such retirements 
 are now made only under section 1481, Re- 
 vised Statutes. 
 
 This proviso read as follows: 
 
 "J.71C? provided further, That nothing con- 
 tained in thi3_ section shall be construed to 
 prevent the retirement of officers who now have 
 the rank or relative rank of commodore with 
 the rank and pay of that grade." — (30 Stat., 
 1006, chap. 413.) 
 
 [1899, Mar. 3, sec. 7. Eelative rank abolished; military command; titles.] 
 And provided further, That all sections of the Revised Statutes which, in 
 defining the rank of ofiicers or positions in the Navy, contain the words ''the 
 relative rank of" are hereby amended so as to read ''the rank of," but officers 
 whose rank is so defined shall not be entitled, in virtue of their rank to com- 
 mand in the line or in other staff corps. Neither shall this Act be construed 
 as changing the titles of officers in the staff corps of the Navy. — (30 Stat,, 
 1006, chap, 413.) 
 
 See sections 1471-1480, Revised Statutes, for 
 provisions relating to relative rank of 
 staff officers and chiefs of bureaus. 
 
 See section 1488, Revised Statutes, as to mili- 
 tarv command. 
 
 See sections 421, 1471, and 1480, Revised 
 Statutes, and notes thereto, as to titles. 
 
 [1899, Mar. 3, sec. 7. Number of civil engineers.] 
 
 ber, twenty-one. "—(30 Stat., 1006, chap. 413.) 
 
 See section 1413, Revised Statutes, and 
 
 note thereto, for later laws relating to civil 
 
 This provision read as follows: 
 
 "No appointments shall be made of civil 
 engineers in the Navy on the active list under 
 section fourteen hundred and thirteen of the 
 Revised Statutes in excess of the present num- 
 
 [1899, Mar. 3, sec. 8. Voluntary retirements, to create vacancies.] That 
 officers of the line in the grades of captain, commander, and lieutenant-com- 
 mander may, by official application to the Secretary of the Navy, have their 
 names placed on a list which shall be known as the list of "Applicants for 
 voluntary retirement," and when at the end of any fiscal year the average 
 vacancies for the fiscal years subsequent to the passage of this Act above the 
 grade of commander have been less than thirteen, above the grade of lieutenant- 
 commander less than twenty, above the grade of lieutenant less than twenty- 
 nine, and above the grade of lieutenant (junior grade) less than forty, the 
 President may, in the order of the rank of the applicants, place a sufficient 
 number on the retired list with the rank and three-fourths the sea pay of the 
 next higher grade, as now existing, including the grade of commodore, to cause 
 the aforesaid vacancies for the fiscal year then being considered. — (30 Stat., 
 1006, chap. 413.) 
 
 By act of August 22, 1912 (37 Stat. 328), it was 
 provided that officers thereafter retired 
 under this section shall be retired with the 
 rank and three-fourths of the sea pay of the 
 grade fiom which retired. 
 
 See sections 1457 and 1588, Revised Statutes, 
 and notes thereto, on general subject of 
 rank and pay on retirement; see also next 
 section of this act, set forth below, and note 
 thereto. 
 
 1265 
 
ISIar. 3, 1899. 
 
 Pt. 3. STATUTES AT LARGE. 
 
 Personnel Act. 
 
 [1899, Mar. 3, sec. 9. Compulsory retirements, to create vacancies.] 
 
 This section read as follows: 
 
 "That should it be found at the end of any 
 fiscal year that the retirements pursuant to the 
 provisions of law now in force, the voluntary re- 
 tirements pro\'ided for in this Act, and casualties 
 are not suHicient to cause the average vacancies 
 enumerated in section eight of this Act, the 
 Secretary of the Navy shall, on or about the 
 first day of June, convene a board of five rear- 
 admirals, and shall place at its disposal the 
 service and medical records on file in the Navy 
 Department of all the officers in the grades of 
 captain, commander, lieutenant-commander, 
 and lieutenant. The board shall then select, 
 as soon as practicable after the first day of July, 
 a sufficient number of officers from the before- 
 mentioned grades, as constituted on the thirti- 
 eth day of June of that year, to cause the average 
 vacancies enumerated in section eight of this 
 Act. Each member of said board shall swear, 
 or affirm, that he will, without prejudice or par- 
 tiality, and having in view' solely the special 
 fitness of officers and the efficiency of the naval 
 ser\-ice, perform the duties imposed upon him 
 by this Act. Its finding, which shall be in 
 writing, signed by all the members, not less 
 than four governing, shall be transmitted to the 
 President, who shall thereupon, by order, make 
 the transfers of such officers to the retired list 
 as are selected by the board: Provided, That not 
 more than five captains, four commanders, four 
 lieutenant-commanders, and two lieutenants 
 
 are so retired in any one year. The promotions 
 to fill the vacancies thus created shall date from 
 the thirtieth day of June of the current year: 
 And provided further, That any officer retired 
 under the provisions of this section shall be 
 retired with the rank and three-fourths the sea 
 pay of the next higher grade, including the 
 grade of commodore, which is retained on the 
 retired list for this purpose."— (30 Stat. 1006, 
 chap. 413.) 
 
 It was amended by act of August 22, 1912 
 (37 Stat. 32S), which provided that officers 
 thereafter retired under this section were to be 
 retired with the rank and three-fourths of the 
 sea pay of the grade from which retired. 
 
 It was repealed by act of March 3, 1915. 
 (38 Stat. 938.) The same act (38 Stat. 939), 
 authorized the President, with the advice and 
 consent of the Senate, within two years from the 
 date of said act, to restore to the acti\'e list any 
 officer of the Navy retired under this section. 
 No restorations were made under said enact- 
 ment. By act of August 29, 1916 (39 Stat. 
 602-603), the President was authorized to re- 
 store to the active list certain officers named 
 therein who had been retired under the pro- 
 visions of this and the preceding section. 
 
 See note to Constitution, Article I, section 7, 
 clause 2, under ' ' Veto of bill to restore to active 
 list officer voluntarily retired," and "Veto of 
 bill to restore to active list officer compul- 
 sorily retired." 
 
 [1899, Mar. 3, sec. 10. Construction oflicers, number and rank of; promo- 
 tions.] That of ttie naval constructors five shall have the ranis of captain, 
 five of commander, and all others that of lieutenant-commander or lieutenant. 
 Assistant naval constructors shall have the rank of lieutenant or lieutenant 
 (junior grade). Assistant naval constructors shall be promoted to the grade 
 of naval constructor after not less than eight or more than fourteen years' 
 service as assistant naval constructor: Provided, That the whole number of naval 
 constructors and assistant naval constructors on the active list shall not exceed 
 forty in all.— (30 Stat., 1006-1007, chap. 413.) 
 
 with act of August 29, 1916 (39 Stat. 576). 
 
 See sections 1402-1404, and 1477, Revised 
 Statutes, and notes thereto, for later laws 
 relating to the number and rank of con- 
 struction officers. 
 
 Assistant naval constructors are appointed with 
 the rank of lieutenant (junior grade), in 
 accordance with this section; they are 
 advanced in rank up to and including the 
 rank of lieutenant commander with their 
 "running mates" in the line, in accordance 
 
 They are promoted to naval constructor 
 after length of ser\dce, in accordance with 
 this section; naval constructors are ad- 
 vanced to ranks above Lieutenant com- 
 mander by selection, in accordance with 
 act of July 1, 1918 (40 Stat. 718). 
 As to promotion and advancement of officers, 
 see sections 1493-1505, Revised Statutes, 
 and notes thereto. 
 
 [1899, Mar. 3, sec. 11. Retirement, officers, civil war service.] That any 
 
 officer of the Navy, with a creditable record, who served during the civil war, 
 
 shall, when retired, be retired with the rank and three-fourths the sea pay of 
 
 the next higher grade. — (30 Stat., 1007, chap. 413.) 
 
 See act of June 29, 1906 (34 Stat., 554), and notes thereto; and see notes to sections 1457, 
 1588, and 1622, Revised Statutes. 
 
 [1899, Mar. 3, Sec. 12. Warrant officers and commissioned warrant officers; 
 appointment, promotion, pay.] That boatswains, gunners, carpenters, and 
 sailmakers shall after ten years from date of warrant be commissioned chief 
 
 1266 
 
Personnel Act. 
 
 Ft. 3. STATUTES AT LARGE. 
 
 Mar. 3, 1890. 
 
 boatswains, chief gunners, chief carpenters, and chief sailmakers, to rank with 
 but after ensign : Provided, That the chief boatswains, chief gunners, chief car- 
 penters, and chief sailmakers shall on promotion have the same pay and allow- 
 ances as are now allowed a second lieutenant in the Marine Corps: Provided, 
 That the pay of boatswains, gunners, carpenters and sailmakers shall be the 
 same as that now allowed by law: Provided, further, That nothing in this Act 
 shall give additional rights to quarters on board ship or to command, and that 
 immediately after the passage of this Act boatswains, gunners, carpenters and 
 sailmakers, who have served in the Navy as such for fifteen years, shall be 
 commissioned in accordance with the provisions of this section, and thereafter 
 no warrant officer shall be promoted until he shall have passed an examination 
 before a board of chief boatswains, chief gunners, chief carpenters and chief 
 sailmakers, in accordance with regulations prescribed by the Secretary of the 
 Navy.— (30 Stat., 1007, chap. 413.) 
 
 See notes to sections 1405, 1407, 1410, 1417, 
 
 1438, 1491, and 1556, Revised Statutes; 
 
 and see sections 14 and 15 of this act. 
 Promotion of boatswains, gunners, carpenters, 
 
 and sailmakers, to commissioned warrant 
 
 officers, after six years from date of warrant, 
 
 was authorized by act of April 27, 1904 
 
 [1899, Mar. 3, sec. 13. Pay and allowances, commissioned officers.] That, 
 after June thirtieth, eighteen hundred and ninety-nine, commissioned officers 
 of the line of the Navy and of the Medical and Pay Corps shall receive the sam<^ 
 pay and allowances, except forage, as are or may be provided by or in pursuance 
 of law for the officers of corresponding rank in the Army. — (30 Stat., 1007, 
 chap. 413.) 
 
 (33 Stat., 346). See also note to section 
 1405, Revised Statutes, under "Promotion 
 of warrant officers." 
 Pay of warrant officers and commissioned war- 
 rant officers. See note to section 1556, 
 Re\T.sed Statutes. 
 
 By the Army appropriation act of May 11, 1908 
 (35 Stat., 108\ it was pro\dded that this 
 section ' ' shall not be construed as changing 
 the pay of any naval officer by reason of 
 the provisions of this Act." 
 
 So much of tliis provision as relates to pay has 
 been superseded by later laws, except in 
 so far as such later enactments have con- 
 tained saAdng clauses protecting officers 
 against any reduction in pay by reason 
 thereof. (See note to sec. 1556, R. S., 
 under "1. General rule; amendatory stat- 
 utes." 
 
 So much of this provision aa relates to allow- 
 ances is still in force, and has been ex- 
 tended to include all commissioned 
 officers of the Navy. (See acts of May 13, 
 1908, 35 Stat., 128, and Aug. 29, 1916, 
 39 Stat., 581; see also 24 Comp. Dec. 610, 
 noted under sec. 1487, R. S.; and see, as to 
 allowances in general, notes to Bees. 1487 
 and 1558, R. S.) 
 
 The designation of the "Pay Corps" was 
 changed to "Supply Corps," by act of 
 July 11, 1919 (41 Stat., 147) 
 
 [1899, Mar. 3, sec. 13. Pay reduced for shore duty.] 
 
 This proviso read as follows: 
 
 ^'Provided, That such officers when on shore 
 shall receive the allowances, but fifteen per 
 centum less pay than when on sea duty ; but 
 this provision shall not apply to warrant offi- 
 cers commissioned under section twelve of this 
 Act."— (30 Stat., 1007, chap. 413.) 
 
 It was repealed by act of June 29, 1906 
 
 (34 Stat., 554). 
 
 By act of May 13, 1908 (35 Stat.", 128), officers 
 on sea duty were allowed 10 per cent increase 
 in the pay therein provided for shore duty. 
 (See notes to sec. 1571, R. S., as to sea service.) 
 
 [1899, Mar. 3, sec. 13. Shore duty beyond seas.] 
 
 This proviso read as follows: 
 
 ^^ Provided further, That when naval officers 
 are detailed for shore duty beyond seas they 
 shall receive the same pay and allowances as 
 are or may be provided by or in pursuance of 
 law for officers of the Army detailed for duty in 
 similar places."— (30 Stat., 1007, chap. 413.) 
 
 See note to section 1556, Revised Stat- 
 utes, under "38. Additional pay for special 
 duty," for later laws and decisions relating to 
 pay of officers for shore duty beyond seas. 
 
 1267 
 
Mar. 3, 1899. 
 
 Ft. 3. STATUTES AT LARGE. 
 
 Personnel Act. 
 
 [1899, Mar. 3, sec. 13. Rank of chaplains.] 
 
 This proviso read as follows: 
 
 "■Providdl furtlur, That naval chaplains, who 
 do not possess relative rank, shall have the 
 rank of lieutenant in the Navy."— (30 Stat., 
 1007, chap. 413.) 
 
 See section 1479, Revised Statutes, and 
 note thereto, for later laws and decisions 
 relating to the rank of chaplains. 
 
 1899, Mar. 3, sec. 13. Constructive service, longevity pay.] 
 
 It was repealed by act of March 4, 1913 
 (37 Stat., 891-892), as to persons entering the 
 Na\y from and after the date of said act. 
 
 See note to section 1556, Revised Statutes, 
 under "39. Longe\'ity pay. ' ' 
 
 This clause read as follows: 
 
 "And that all officers, including warrant 
 officers, who have been or may be appointed to 
 the NaAy from civil life shall, on the date of 
 appointment, be credited, for computing their 
 pav, mth five vears' service." — (30 Stat., 
 1007, chap. 413.) " 
 
 [1899, Mar. 3, sec. 13. Prize and bounty, laws repealed.] And all provisions 
 of law authorizing the distribution among captors of the whole or any portion 
 of the proceeds of vessels, or any property hereafter captured, condemned as 
 prize, or providing for the payment of bounty for the sinking or destruction 
 of vessels of the enemy hereafter occurring in time of war, are hereby repealed. — 
 (30 Stat., 1007., chap. 413.) 
 
 See sections 4613-4652, Revised Statutes, and 
 notes thereto, as to prize. 
 
 See section 1536, Revised Statutes, and note 
 thereto, as to salvage. 
 
 [1899, Mar. 3, sec. 13. Present pay not reduced.] And 'provided further, 
 That no provision of this Act shall operate to reduce the present pay of any 
 commissioned officer now in the Navy; and in any case in which the pay of 
 such an officer would otherwise be reduced he shall continue to receive pay 
 according to existing law. — (30 Stat., 1007, chap. 413.) 
 
 Amendment to this proviso was made by act of 
 June 7, 1900 (31 Stat., 697), so as to pro\dde 
 that nothing contained in this act "shall 
 operate to reduce the pay which, but for 
 the passage of said act, would have been 
 
 recei-s'ed by any commissioned officer at the 
 time of its passage or thereafter. ' ' 
 See note to section 1556, Revised Statutes, un- 
 der "1. General rule: amendatory stat- 
 utes." 
 
 [1899, Mar. 3, sec. 13. Pay of retired officers.] 
 
 the Navy."— (30 Stat., 1007, chap. 413.) 
 
 See section 1588 Revised Statutes, and 
 note thereto, as to pay of retired officers. 
 
 This proviso read as follows: 
 
 ''And provided further, That nothing in this 
 Act shall operate to increase or reduce the 
 pay of any officer now on the retired list of 
 
 [1899, Mar. 3, sec. 14. Machinists, appointment, qualifications, number.] 
 That upon the passage of this Act the Secretary of the Navy shall appoint a 
 board for the examination of men for the position of warrant machinists, one 
 hundred of whom are hereby authorized. The said examination shall be open, 
 first, to all machinists by trade, of good record in the naval service, and if a 
 sufficient number of machinists from the Navy are not found duly qualified, 
 then any machinist of good character, not above thirty years of age, in civil 
 life shall be chgible for such examination and appointment to fill the remaining 
 vacancies. All subsequent vacancies in the list of warrant machinists shall 
 be filled by competitive examination before a board ordered by the Secretary 
 of the Navy, and open to all machinists by trade who are in the Navy, and 
 machinists of good character, not above thirty years of age, in civil life author- 
 ized by the Secretary of the Navy to appear before said board, and, where 
 candidates from civil life and from the naval service possess equal qualifications. 
 
 1268 
 
Personnel Act. 
 
 Pt. S. STATUTES AT LARGE. 
 
 Mar. 3, 1899. 
 
 the preference shall be given to those from the naval service. — (30 Stat., 1007- 
 1008, chap. 413.) 
 
 The title of "warrant machinist" was changed 
 to "machinist" by act of March 3, 1909 (35 
 Stat., 771). 
 
 See note to section 1405, Revised Statutes, un- 
 der "Machinists," and "Promotion of war- 
 rant officers"; see also sections 1407, 1417, 
 1438, 1491, and 1556, Revised Statutes, and 
 notes thereto. 
 
 [1899, Mar. 3, sec. 15. Machinists, pay and retirement; acting appointment; 
 uniform.] That the pay of warrant macliinists shall be the same as that of 
 warrant officers, and they shall be retu'ed under the provisions of existing law 
 for warrant officers. Warrant machinists shall receive at first an acting 
 appointment, which may be made permanent under regulations established by 
 the Navy Departmentf or other warrant officers. They shall take rank with other 
 warrant officers according to date of appointment and shall wear such uniform 
 as may be prescribed by the Navy Department. — (30 Stat., 1008, chap. 413.) 
 
 Title of "warrant machinist" changed to "ma- 
 chinist": See note to preceding section. 
 
 Pay of warrant officers and acting warrant offi- 
 cers: See note to section 1556, Revised Stat- 
 utes, under "25. Warrant officers, acting 
 warrant officers, and commissioned warrant 
 officers. ' ' 
 
 Retirement of warrant officers: See notes to 
 sections 1405 and 1448, Revised Statutes, 
 under "Retirement of warrant officers." 
 
 Acting appointments: See section 1410, Re- 
 \ised Statutes, and note thereto. 
 
 Rank of warrant officers: See section 1491, Re- 
 vised Statutes, and note thereto. 
 
 [1899, Mar. 3, sec. 16. Term of enlistment; honorable discharge gratuity; 
 
 continuous service pay.] 
 
 recommendation for reenlistment upon the 
 expiration of his last term of service of not less 
 than three years, who reenlists for a term of 
 four years witliin four months from the date of 
 his discharge, shall receive an increase of one 
 dollar and thirty-six cents per month to the 
 pay prescribed for the rating in which he serves 
 for each consecutive reenlistment.' " — (30 
 Stat., 1008, chap. 413.) 
 
 See note to section 1418, Revised 
 Statutes, for later laws as to term of enlistment; 
 and see section 1573, Revised Statutes, and 
 note thereto, for later amendment and reenact- 
 ment of that section, and for decisions respect- 
 ing honorable discharge gratuity and con- 
 tinuous service pay. 
 
 This section read as follows: 
 
 "That hereafter the term of enlistment of 
 all enlisted men of the Navy shall be four years: 
 Provided, That section fifteen hundred and 
 seventy-three. Revised Statutes, be amended 
 to read: 'If any enlisted man or apprentice, 
 being honorably discharged, shall reenlist for 
 four years within four months thereafter, he 
 shall, on presenting his honorable discharge or 
 on accounting in a satisfactory manner for its 
 loss, be entitled to pay during the said four 
 months equal to that to which he would have 
 been entitled if he had been employed in 
 actual service; and that any man who has 
 received an honorable discharge from his last 
 term of enlistment, or who has received a 
 
 [1899, Mar. 3, sec. 17. Retirement of enlisted men.] That when an enlisted 
 man or appointed petty officer has served as such thirty years in the Unitea 
 States Navy, either as an enlisted man or petty officer, or both, he shall, by 
 making appUcation to the President, be placed on the retired list hereby created, 
 with the rank held by him at the date of retirement; and he shall thereafter 
 receive seventy-five per centum of the pay and allowances of the rank or rating 
 upon which he was retired : Provided, That if said enlisted man or appointed petty 
 officer had active service in the Navy or in the Army or IVIarine Corps, either as 
 volunteer or regular, during the civil or Spanish- American war, such war service 
 shall be computed as double time in computing the thirty years necessary to 
 entitle him to be retired: And 'provided further, That applicants for retirement 
 under this section shall, unless physically disqualified for service, be at least 
 fifty years of age. — (30 Stat., 1008, chap. 413.) 
 
 This section was amended by act of June 22, 
 
 1906 (34 Stat., 451), and as so amended was 
 in large part superseded by act of March 2, 
 
 1907 (34 Stat., 1217). 
 
 By act of March 3, 1915 (38 Stat., 941), "the 
 period of time during which members of 
 the naval resei've were actively employed 
 with the Navv while enlisted in the naval 
 
 1269 
 
Mar. 3, 1899. 
 
 Pt. 3. STATUTES AT LARGE. 
 
 Personnel Act. 
 
 resers'e shall, for the purposes of retirement, 
 be counted as active service in the Navy 
 in the case of those who reenlist in the 
 Navy after 8er\ace in the naval reserve." 
 By act of August 29, 1916 (39 Stat., 591), 
 transferred members of the Fleet Naval 
 ReserNe may be placed on the retired list 
 of the Na^•y upon completing 30 years 
 serv-ice, including naval and fleet naval 
 reserve ser\-ice; and by act of July 1, 1918 
 (40 Stat., 710), "service in the Navy, 
 Marine Corps, National Naval Volunteers, 
 and Naval Militia _ shall be counted as 
 continuous service in the Naval Reserve 
 Force " for the purpose of retirement. 
 
 Active duty for retired enlisted men, in time of 
 war or emergency, was authorized by acts 
 of March 3, 1915 (38 Stat., 941), and August 
 29, 1916 (39 Stat., 591). 
 
 Authority for the advancement of retired 
 enlisted men employed on active duty is 
 contained in the act of July 1, 1918 (40 
 Stat., 719). As to their pay while on active 
 duty, see note to section 1569, Revised 
 Statutes, under "17. Retired enlisted 
 men." 
 
 As to status of retired enlisted men, and whether 
 subject to trial by court-martial, see note 
 to section 1624, Revised Statutes. 
 
 [1899, Mar. 3, sec. 18. Marine Corps, number and rank of line officers.] 
 
 This section provided as follows: 
 
 ' ' That from and after the date of the approval 
 of this Act the active list of the line officers of 
 the United States Marine Corps shall consist of 
 of one brigadier-general commandant, five 
 colonels, five lieutenant colonels, ten majors, 
 sixty captains, sixty first lieutenants and sixty 
 second lieutenants: Provided, That vacancies 
 in all gi'ades in the line created by this section 
 shall be filled as far as possible by promotion by 
 seniority fi'om the line officers on the active list 
 of said Corps: And provided further, That the 
 
 commissions of officers now in the Marine 
 Corps shall not be vacated by this act: And 
 provided further. That vacancies in the gi'ade of 
 brigadier-general shall be filled by selection 
 from officers on the active list of the Marine 
 Corps not below the grade of field officer." — (30 
 Stat., 1008, chap. 413.) 
 
 See note to section 1596, Revised 
 Statutes, for later laws as to organization of the 
 Marine Corps; and see note to section 1601, 
 Revised Statutes, as to rank of the commandant. 
 
 [1899, Mar. 3, sec. 19. Marine Corps, filling of vacancies.] 
 
 with Spain; or, third, from meritorious non- 
 commissioned officers of the Marine Corps; or, 
 fourth, from civil life: Provided, That after 
 said vacancies are once filled there shall be no 
 further appointments from civil life." — (30 
 Stat., 1008, chap. 413.) 
 
 See note to section 1599, Revised 
 Statutes, for later laws and decisions relating to 
 the filling of vacancies in the Marine Corps. 
 
 This section provided as follows: 
 
 "That the vacancies existing in said Corps 
 after the promotions and appointments herein 
 provided for shall be filled by the President 
 from time to time, whenever the actual needs 
 of the naval ser\'ice require it, first, from the 
 graduates of the Naval Academy in the manner 
 now provided by law; or, second, from those 
 who are ser\dng or who have served as second 
 lieutenants in the Marine Corps during the war 
 
 [1899, Mar. 3, sec. 20. Marine Corps, ages of candidates; examination for 
 promotion.] That no person except such officers or former graduates of the 
 Naval Academy as have served in the war with Spain, as hereinbefore provided 
 for, shall be appointed a commissioned officer in the Marine Corps who is under 
 twenty or over thirty years of age; and that no person shall be appointed a 
 commissioned officer in said corps until he shall have passed such examination 
 as may be prescribed by the President of the United States, except graduates 
 of the Naval Academy, as above provided. That the officers of the Marine 
 Corps above the grade of captain, except brigadier-general, shall, before being 
 promoted, be subject to such physical, mental and moral examination as is now, 
 or may hereafter be, prescribed by law for other officers of the Marme Corps. — 
 (30 Stat., 1009, chap. 413.) 
 
 Ages for appointment: See section 1599, Revised 
 Statutes, and laws noted thereunder. 
 
 Examination for promotion: See note to section 
 1599, Revised Statutes, \inder "Laws re- 
 lating to promotion," and "Laws relating 
 to promotion construed." 
 
 [1899, Mar. 3, sec. 21. Marine Corps vacancies, when filled.] 
 
 This section provided as follows: 
 
 "That upon the passage of this Act not more 
 
 than forty-five of the captains, forty-five first 
 
 lieutenants and forty-five second lieutenants 
 
 herein provided for shall be appointed; fifteen 
 
 captains, fifteen first lieutenants and fifteen 
 second lieutenants to be appointed subse- 
 quently to January first, nineteen hundred." — 
 (30 Stat., 1009, chap. 413.) 
 
 1270 
 
Personnel Act. 
 
 Pt. 3. STATUTES AT LARGE. 
 
 Mar. 3, 1899. 
 
 [1899, Mar. 3, sec. 22. Marine Corps, number and rank of staff officers; 
 filling of vacancies.] 
 
 This section provided as follows: 
 
 "That the staff of the Marine Corps shall con- 
 sist of one adjutant and inspector, one quarter- 
 master and one pajTnaster, each with the rank 
 of colonel ; one assistant adjutant and inspector, 
 two assistant quartermasters and one assistant 
 pajTnaster, each with the rank of major; and 
 three assistant quartermasters with the rank of 
 captain. That the vacancies created by this 
 Act in the departments of the adjutant and 
 inspector and paj-master shall be filled first by 
 promotion according to seniority of the officers 
 in each of these departments respectively, and 
 then by selection from the line officers on the 
 active list of the Marine Corps not below the 
 grade of captain, and who shall have seen not 
 less than ten years' service in the Marine Corps. 
 That the vacancies created by this Act in the 
 quartennaster's department of said corps shall 
 be filled, first by promotion according to 
 
 seniority of the officers in this department, and 
 then by selection from the line officers on the 
 active list of said corps not below the grade of 
 first lieutenant: Provided, That all vacancies 
 hereafter occurring in the staff of the Marine 
 Corps shall be filled first by promotion according 
 to seniority of the oflicers in their respective de- 
 partments, and then by selection from officers of 
 the line on the active list, as hereinbefore pro- 
 \ided for."— (30 Stat., 1009, chap. 413.) 
 
 See notes to section 1596, 1598, 1599, 
 and 1602, Re\'ised Statutes, for later laws 
 superseding this section. 
 
 By act of August 29, 1916 (39 Stat., 610), the 
 permanent staff system in the Marine Corps was 
 abolished, and a system of temporary details 
 from the line was substituted therefor. (See 
 note to section 1598, Revised Statutes.) 
 
 As to rank of staff officers, see note to section 
 1602, Re\ased Statutes. 
 
 [1899, Mar. 3, sec. 23. Marine Corps, number of enlisted men.] Tliat the 
 enlisted force of ttie Marine Corps shall consist of five sergeant majors, one 
 drum major, twenty quartermaster sergeants, seventy- two gunnery sergeants 
 with the rank and allowance of the first sergeant, and whose pay shall be 
 thirty-five dollars per month; sixty first sergeants; two hundred and forty 
 sergeants; four hundred and eighty corporals; eighty drummers; eighty 
 trumpeters; and four thousand nine hundred and sixty-two privates. — (30 
 Stat., 1009, chap. 413.) 
 
 See note to section 1596, Revised Statutes, 
 under " Number and grades of enlisted 
 men," for later laws increasing the num- 
 
 ber of enlisted men from time to time, and 
 otherwise modifying, but not repealing or 
 superseding, this section. 
 
 [1899, Mar. 3, sec. 24. Marine band; organization and pay of.] 
 
 be fifty dollars per month and the allowances 
 of a sergeant; such musicians of the band to 
 have no increased pay for length of ser\dce." — 
 (30Stat.,1009, chap. 413.) 
 
 It -was superseded by act of August 29, 1916 
 (39 Stat., 612 I. See note to section 1596, Re- 
 ^'ised Statutes; see also section 1613, Revised 
 Statutes, and note thereto. 
 
 This section provided as follows: 
 
 "That the band of the United States Marine 
 Corps shall consist of one leader, with the pay 
 and allowances of a first lieutenant ; one second 
 leader, whose pay shall be seventy-five dollars 
 per month, and who shall have the allowances 
 of a sergeant major; thirty first class musicians, 
 whose pay shall be sixty dollars per month ; and 
 thirty second class musicians whose pay shall 
 
 [1899, Mar. 3, sec. 25. Navy, oath of allegiance, officers and enlisted men.] 
 That the oath of allegiance now provided for the officers and men of the Army 
 and ]\Iarine Corps shall be administered hereafter to the officers and men of the 
 Navy.— (30 Stat., 1009, chap. 413.) 
 
 See section 1609. Revised Statutes, and note thereto; see als.o notes to sections 1342, 1418, 
 and 1757, ReAised Statutes. 
 
 [1899, Mar. 3, sec. 26. Repeal of prior laws.] That all acts and parts of 
 acts, so far as they conflict with the provisions of this Act, are hereby repealed. — 
 (30 Stat., 1009, chap. 413.) 
 
 [1899, Mar. 3. Pay of assistant to chief, Bureau of Supplies and Accounts.] 
 The officer of the Pay Corps of the Navy detailed as assistant to the Chief of 
 the Bureau of Supplies and Accounts pursuant to the act of Congress approved 
 July twenty-seventh, eighteen hundred and ninety-four, shall hereafter receive 
 the highest pay of his grade.— (30 Stat.. 1038, chap. 421.) 
 
 1271 
 
June 7, 1900. Pt. S. STATUTES AT LARGE. 
 
 The designation of the ''Pay Corps" was 
 changed to "Supply Corps" by act of 
 July II, l!»lf».— (41 Stat.. 147.) 
 
 See act of July 2(). 1894 (28 Stat.. 132), which 
 
 is the act referred to herein as the act 
 approA^ed "July twenty-seventh," 1894; 
 see also note to section 421, Revised 
 Statutes. 
 
 [1900, Mar. 21. Naval Intelligence, publications.] That the Secretary of 
 the Navy bo, and is hereby, authorized to print, in excess of the one thousand 
 copies authorized by the Act of January twelfth, eighteen hundred and ninety- 
 five, such extra copies of the publications of the Office of Naval Intelligence 
 as may be necessary for distribution to the naval service and to meet other 
 official demands: Provided, That in no case shall the edition of any one publi- 
 cation exceed two thousand copies. — (31 Stat., 713, Res. No. 14.) 
 
 See act of .January 12, 1895, section 89 (28 Stat., 622-623). 
 
 [1900, Apr. 17. Book of Estimates, statement of employees paid from 
 general appropriations.] It shall be the duty of the Secretary of the Navy to 
 submit in the Book of Estimates for the fiscal year nineteen hundred and two, 
 and annually thereafter, under the respective bureaus and offices of the Navy 
 Department, a statement in detail, showing the number of persons employed 
 during the previous fiscal year and the rate of compensation of each under 
 appropriations for "Increase of the Navy" or other general appropriations. — 
 (31 Stat., 117, chap. 192.) 
 
 See note to sections 429 and 430, Revised Statutes, and laws cited thereunder. 
 
 [1900, May 24. Removal of charge of desertion.] That chapter eight 
 hundred and ninety, volume twenty-five, of the United States Statutes at 
 Large, entitled "An Act to relieve certain appointed or enlisted men of the 
 Navy and Marine Corps from the charge of desertion," approved August four- 
 teenth, eighteen hundred and eighty-eight, be, and the same is hereby, revived 
 and reenacted. 
 
 Sec. 2. That section five of the said Act be, and is hereby, so amended as 
 to remove the limitation of time within which applications for relief may be 
 received and acted upon under the provisions of said Act. — (31 Stat., 183, 
 chap. 550.) 
 
 See act of August 14, 1888 (25 Stat., 442-443). 
 
 [1900, June 6. Accounting officers, not to deduct attorneys' fees.] That in 
 the settlement of claims of officers, soldiers, sailors, and marines, or their 
 representatives, and all other claims for pay and allowances within the juris- 
 diction of the Auditor for the War Department or the Auditor for the Navy 
 Department, presented and filed hereafter in which it is the present practice to 
 make deductions of attorneys' fees from the amount found due, no deductions 
 of fees for attorneys or agents shall hereafter be made, but the draft, check, or 
 warrant for the full amount found due shall be delivered to the payee in person 
 or sent to his bona fide post-office address (residence or place of business). — 
 (31 Stat., 637, chap. 791.) 
 
 See note to section 236, Revised Statutes, on general subject of accounts. 
 
 [1900, June 7. Mileage or actual expenses, officers of the Navy.] That in 
 lieu of traveling expenses and all allowances whatsoever connected therewith, 
 including transportation of baggage, officers of the Navy traveling from point 
 to point within the United States under orders shall hereafter receive mileage 
 
 1272 
 
Pt. .3. STATUTES AT LARGE. Mar. 2, 1901. 
 
 at the rate of eight cents per mile, distance to be computed by the shortest 
 usually traveled route; but in cases where orders are given for travel to be 
 jjerformed repeatedly between two or more places in the same vicinity the 
 Secretary of the Navy may, in his discretion, direct that actual and necessary 
 expenses only be allowed. Actual expenses only shall be paid for travel under 
 orders outside the limits of the United States in North America. — (31 Stat., 
 685, chap. 859.) 
 
 See notes to sections 1566 and 1612, Revised Statutes; and see acts of March 3, 1901 (31 
 Stat., 1029), and July 1, 1902 (32 Stat., 663). 
 
 [1900, June 7. Naval hospital fund.] That from and after July first, nine- 
 teen hundred, all forfeitures on account of desertion shall be passed to the credit 
 of the naval hospital fund. — (31 Stat., 697, chap. 859.) 
 
 See sections 4807-4810, Revised Statutes, and notes thereto. 
 
 [1900, June 7. Rank of assistant surgeons.] Assistant surgeons shall rank 
 with assistant surgeons in the Army. — (31 Stat., 697, chap. 859.) 
 
 See section 1474, Revised Statutes, and note thereto. 
 
 [1900, June 7. Pay of commissioned officers not reduced.] Section thirteen 
 of the act approved March third, eighteen hundred and ninety-nine, entitled 
 "An act to reorganize and increase the efficiency of the personnel of the Navy 
 and Marine Corps of the United States," is hereby so amended as to provide 
 that nothing therein contained shall operate to reduce the pay which, but for the 
 passage of said act, would have been received by any commissioned officer at 
 the time of its passage or thereafter. — ^(31 Stat., 697, chap. 859.) 
 
 See note to section 1556, Revised Statutes, and see act of March 3, 1899, section 13 (30 Stat., 
 1007). 
 
 [1901, Feb. 2, sec. 41. Wearing of badges, military societies.] That the 
 distinctive badges adopted by military societies of men "who served in the 
 armies and navies of the United States during the Spanish-American war and 
 the incident insurrection in the Philippines" may be worn upon all occasions 
 of ceremony by officers and men of the Army and Navy of the United States 
 who are members of said organizations in their own right. — (31 Stat., 758, 
 chap. 192.) 
 
 See note to section 1407, Re\'ised Statutes. 
 
 [1901, Mar. 2. Departmental publications, furnished Library of Congress.] 
 That of the publications described in this section the number of copies which 
 shall be printed and distributed by the Public Printer to the Library of Congress 
 for its own use and for international exchange in lieu of the number now pro- 
 vided by law shall be sixty-two, except as such number shall be enlarged to 
 not exceeding one hundred copies by request of the Librarian of Congress, to 
 wit: The House documents and reports, bound; the Senate documents and 
 reports, bound; the House Journals, bound; the Senate Journals, bound; all 
 other documents bearing a Congressional number and all documents not bearing 
 a Congressional number printed by order of either House of Congress, or by 
 order of any Department, bureau, commission, or officer of the Government, 
 except confidential matter, blank forms, and circular letters not of a public 
 character; the Revised Statutes, bound; the Statutes at Large, bound; the 
 
 1273 
 
Mar. 3, 1901. Pt. 3. STATUTES AT LARGE. 
 
 Congressional Record, bound; the Official Register of the United States, 
 bound.— (31 Stat., 1464, Res. No. 16.) 
 
 Sec. 2. That in addition to the foregoing the Public Printer shall supply 
 to the Library of Congress, for its own use two copies of each of the above- 
 described publications, unbound, as published; five copies of all bills and 
 resolutions; ten copies of the daily Congressional Record; and two copies of all 
 documents printed for the use of Congressional committees not of a confidential 
 cliaracter.— (31 Stat., 1464, Res. No. 16.) 
 
 Sec. 3. That of any publication printed at the Government expense by 
 direction of any Department, commission, bureau, or officer of the Govern- 
 ment elsewhere than at the Government Printing Office there shall be supplied 
 to the Library of Congress for its own use and for international exchange 
 sixty-two copies, except as such number shall be enlarged to not exceeding 
 one hundred copies by request of the Joint Committee on the Library. — (31 
 Stat., 1465, Res. No. 16.) 
 
 See act of January 12, 1895, section 58 (28 Stat., 610). 
 
 [1901, Mar. 3, sec. 5. Estimates, time for submitting.] That hereafter it 
 
 shall be the duty of the heads of the several Executive Departments, and of 
 
 other officers authorized or required to make estimates, to furnish to the 
 
 Secretary of the Treasury, on or before the fifteenth day of October of each 
 
 year, their annual estimates for the public service, to be included in the Book 
 
 of Estimates prepared by law under his direction, and in case of failure to 
 
 furnish estimates as herein required it shall be the duty of the Secretary of 
 
 the Treasury to cause to be prepared in the Treasury Department, on or before 
 
 the first day of November of each year, estimates for such appropriations as 
 
 in his judgment shall be requisite in every such case, which estimates shall be 
 
 included in the Book of Estimates prepared by law under his direction for 
 
 the consideration of Congress. — (31 Stat., 1009, chap. 830.) 
 
 See act of March 3, 1875, section 3 (18 Stat., and 3666. Re\dsed Statutes, and laws noted 
 
 370); and see, generally, sections 429, 430, thereunder. 
 
 [1901, Mar. 3. Mileage and traveling expenses; naval officers.] That in 
 
 lieu of traveling expenses and all allowances whatsoever connected therewith, 
 
 including transportation of baggage, officers of the Navy traveling from point 
 
 to point within the United States under orders shall hereafter receive mileage 
 
 at the rate of eight cents per mile, distance to be computed by the shortest 
 
 usually traveled route; but in cases where orders are given for travel to be 
 
 performed repeatedly between two or more places in the same vicinity the 
 
 Secretary of the Navy may, in his discretion, direct that actual and necessary 
 
 expenses only be allowed. Actual expenses only shall be paid for travel under 
 
 orders outside the limits of the United States in North America * * *. — 
 
 (31 Stat., 1029, chap. 831.) 
 
 See note to section 1566, Re\'i8ed Statutes, and see acts of Jime 7, 1900 (31 Stat., 685), and 
 July 1, 1902 (32 Stat., 663). 
 
 [1901, Mar. 3. Transportation, enlisted men, Navy, discharged on medical 
 survey and expiration of enlistment.] That the transportation to their homes, 
 if residents of the United States, of enlisted men and apprentices discharged 
 on medical survey; and the transportation to the place of enlistment, if resi- 
 dents of the United States, of enlisted men and apprentices discharged on 
 
 1274 
 
Pt. 3. STATUTES AT LARGE. Mar. 3, 1901. 
 
 account of expiration of enlistment, shall hereafter be chargeable to the appro- 
 priation "Transportation, recruiting, and contingent." — (31 Stat., 1030, 
 chap. 831.) 
 
 See note to section 1569, Revised Statutes, Revised Statutes, and act of June 3, 1916, 
 
 under "20. Mileage and transportation on section 126 (39 Stat., 217). 
 
 discharge"; see also note to section 1566, 
 
 [1901, Mar. 3. Facilities of Departments allowed students and others.] That 
 facilities for study and research in the Government Departments, * * * 
 shall be afforded to scientific investigators and to duly qualified individuals, 
 students, and graduates of institutions of learning in the several States and 
 Territories, as well as in the District of Columbia, under such rules and 
 restrictions as the heads of the Departments and Bureaus mentioned may 
 prescribe.— (31 Stat., 1039, chap. 831.) 
 
 See joint resolution of April 12, 1892 (27 Stat., 395). 
 
 [1901, Mar. 3. Medals of honor and gratuity, enlisted men.] That any 
 enlisted man of the Navy or Marine Corps who shall have distinguished himself 
 in battle or displayed extraordinary heroism in the line of his profession shall, 
 upon the recommendation of his commanding officer, approved by the flag- 
 officer and the Secretary of the Navy, receive a gratuity and medal of honor as 
 provided for seamen in section fourteen hunched and seven of the Revised 
 Statutes.— (31 Stat., 1099, chap. 850.) 
 
 [1901, Mar. 3. Quarters.] Boatswains, gunners, carpenters, sailmakers, 
 warrant machinists, pharmacists and mates, * * * shall hereafter receive the 
 same commutation for quarters as second lieutenants of the Marine Corps. — 
 (31 Stat., 1107, 1108.) 
 
 [1901, Mar. 3. Shore duty beyond seas.] That officers of the Navy, and 
 officers and enlisted men of the Marine Corps, who have been detailed, or may 
 hereafter be detailed, for shore duty in Alaska, the Philippine Islands, Guam, 
 or elsewhere beyond the continental limits of the United States, shall be con- 
 sidered as having been detailed for ''shore duty beyond seas," and shall receive 
 pay accordingly, with such additional pay as may be provided by law for 
 service in island possessions of the United States. — (31 Stat., 1108, chap. 852.) 
 
 See sections 1556, 1569, 1571, and 1612, Revised Statutes, and notes thereto. 
 
 [1901, Mar. 3. Advancement for war service; additional number officers.] 
 That the advancement in rank of officers of the Navy and Marine Corps, when- 
 soever made, for service rendered during the war with Spain, pursuant, respec- 
 tively, to the provisions of sections fifteen hundred and six and sixteen hundred 
 and five of the Revised Statutes, shall not interfere with the regular promotion 
 of officers otherwise entitled to promotion, but officers so advanced, by reason 
 of war service, shall, after they are promoted to higher grades, be carried there- 
 after as additional to the numbers of each grade to which they may at any time 
 be promoted; and each such officer shall hereafter be promoted in due course, 
 contemporaneously with and to take rank next after the officer immediately 
 above him; and all advancements made by reason of war service shall be 
 appropriately so designated upon the official Navy list: Provided, however, 
 That no promotion shall be made to fill a vacancy occasioned by the promotion, 
 retirement, death, resignation, or dismissal of any officer who, at the time of 
 
 54641°— 22 81 1275 
 
Mar. 3. 1901. Ft. S. STATUTES AT LARGE. 
 
 such promotion, retirement, death, resignation, or dismissal, is an additional 
 member of his grade under the foregoing provisions. — (31 Stat., 1108, chap. 852.) 
 
 See sections 1506 and 1605, Re\'ised Statutes, 
 and notes thereto; and see act of June 16, 
 1906 (34 Stat., 296). See also note to sec- 
 tion 1363, Re\dsed Statutes, under "Addi- 
 tional oflicers are authorized," etc. 
 Additional numbers, promotion of. — 
 The practice of making officers additional 
 numbers in their gi"ade is followed by Congi-ess 
 only where for good and sufficient reasons it is 
 desired that such officers shall not delay the 
 promotion of others who are their juniors. In 
 other words, the pro\ision that an officer shall 
 be an additional number in his grade is not 
 intended for his benefit, but is intended to 
 facilitate the promotion of others below him 
 on the list; and unless Congress uses language 
 clearly indicating its intention that the oilicer 
 so made an additional number is to be promoted 
 
 at an earlier date than he would otherwise have 
 been entitled to promotion; that is to say, on 
 the same date as the officer next above him on 
 the list, he should be promoted only from the 
 date on which his position would have entitled 
 him to promotion had he not been made an 
 additional number. In such cases the addi- 
 tional number officer is not promoted either 
 \vith the officer next below him or with the 
 officer next aboA^e him, but is promoted pre- 
 cisely as he would be if he were not an addi- 
 tional number, only his promotion does not 
 operate to delay the promotion of junior officers. 
 It can make no difference to the additional 
 number officer how many junior oflicers may 
 be promoted at the same time; his promotion 
 is in no way delayed thereby. (C. M. O. 6, 
 1915, p. 10, citing file 11130-26, Jan. 8, 1915.) 
 
 [1901, Mar. 3. Board of visitors, Naval Observatory.] There shall be 
 appointed by the President, by and \^'ith the advice and consent of the Senate, 
 from persons not officers of the United States a board of six visitors to the 
 Naval Observatory, four to be astronomers of high professional standing and 
 two to be eminent citizens of the United States. Appointments to this board 
 shall be made for periods of three years, but provision shall be made by initial 
 appointments for shorter terms so that two members shall retire in each year. 
 Members of this board shall serve without compensation, but the Secretary of 
 the Navy shall pay the actual expenses necessarily incurred by members of 
 the board in the discharge of such duties as are assigned to them by the Secre- 
 tary of the Navy or are otherwise imposed upon them. The board of visitors 
 shall make an annual visitation to the Observatory at a date to be determined 
 by the Secretary of the Navy, and may make such other visitations not exceeding 
 two in number annually by the full board or by a duly appointed committee 
 as may be deemed needful or expedient by a majority of the board. The board 
 of visitors shall report to the Secretary of the Navy at least once in each year 
 the result of its examinations of the Naval Observatory as respects the condition 
 of buildings, instruments, and apparatus, and the efficiency with which its 
 scientific work is prosecuted, and shall also report as respects the expenditures 
 in the administration of the Observatory. The board of visitors shall prepare 
 and submit to the Secretary of the Navy regulations prescribing the scope of 
 the astronomical and other researches of the Observatory and the duties of its 
 staff with reference thereto. When an appointment or detail is to be made to 
 the office of astronomical director, director of the Nautical Almanac, astronomer, 
 or assistant astronomer, the board of visitors may recommend to the Secretary 
 of the Navy a suitable person to fill such office, but such recommendation 
 shall be determined only by the majority vote of the members present at a 
 regularly called meeting of the board held in the city of Washington. — (31 Stat., 
 1122, chap. 852.) 
 
 See note to section 434, Revised Statutes. 
 
 [1901, Mar. 3. Superintendent of Naval Observatory.] The Superintendent 
 of the Naval Observatory shall be, until further legislation by Congress, a line 
 
 1276 
 
Pt. 3. STATUTES AT LARGE. Mar. 3, 1901. 
 
 officer of the Navy of a rank not below that of captain. — (31 Stat., 1122, 
 chap. 852.) 
 
 See section 434, Re\ased Statutes, and note thereto. 
 
 [1901, Mar. 3. Warrant officers, appointment as ensigns.] Whenever, in 
 view of the vacancies in the grade of ensign on July thirtieth of any year unfilled 
 by graduates of the Naval Academy, the Secretary of the Navy shall so recom- 
 mend, the President may appoint to that grade, as of July thirtieth, from among 
 the boatswains, gunners, or warrant machinists, not exceeding six in any one 
 calendar year. No person shall be so appointed who is over thirty-five years of 
 age; who has served less than six years as a warrant officer; who is not recom- 
 mended by a commanding officer under whom he has served; nor until he shall 
 have passed such competitive examination as may be prescribed by the Navy 
 Department.— (31 Stat., 1129, chap. 852.) 
 
 See notes to section 1405, Revised Statutes, under "Machinists," and "Ensigns and assist- 
 ant paymasters appointed from warrant officers." 
 
 [1901, Mar. 3. Classification and command of vessels.] That the President 
 of the United States be, and he is hereby, authorized to establish, and from 
 time to time to modify, as the needs of the service may rec|uire, a classification 
 of vessels of the Navy, and to formulate appropriate rules governing assignments 
 to command of vessels and squadrons. — (31 Stat., 1133, chap. 852.) 
 
 See note to section 1529, Revised Statutes. 
 
 [1901, Mar. 3. Military schools, loan of naval equipment.] That the Presi- 
 dent be, and he is hereby, authorized, upon the application of the governor of 
 any State having seacoast line or bordering on one or more of the Great Lakes, 
 to direct the Secretary of the Navy to fm-nish to one well-established military 
 school in that State, desiring to afford its cadets instruction in elementary 
 seamanship, one fully equipped man-of-war's cutter for every twenty-five cadets 
 in actual attendance, and such other equipment as may be spared and be deemed 
 adequate for instruction in elementary seamanship: Provided, That the said 
 school shall have adequate facilities for cutter driU, and shall have in actual 
 attendance at least one hunched and forty cadets in uniform receiving military 
 instruction and quartered in barracks under military regulation, and shall have 
 the capacity to quarter and educate at the same time one hundred and fifty 
 cadets: And 'provided further, That the Secretary of the Navy shall require a 
 bond in each case, in double the value of the property, for the care and safe- 
 keeping thereof and for the return of the same when required. — (31 Stat., 1440, 
 chap. 863; 34 Stat., 620, chap. 3612.) 
 
 This act was expressly amended and reenacted 
 
 to read as above l)y act of June 29, 1906 (34 
 
 Stat., 620). The opening clause of the 
 
 latter act was as follows: "That chapter 
 
 eight hundred and sixty-three, volume 
 
 tliirty-one, of the Statutes at Large, ap- 
 proved March third, nineteen hundred and 
 
 one, to authorize the Secretary of the Na\^ 
 
 to loan naval equipment to certain military 
 
 schools, and now the law in force, be, and 
 
 the same is hereby, amended to read as 
 
 follows." 
 It was further amended by the following clause 
 
 in the naval appropriation act of June 24, 
 
 1910 (36 Stat.. 613): "That the Act entitled 
 *An Act to authorize the Secretary of the 
 Na^vy to loan naval equipment to certain 
 military schools,' approved March third, 
 nineteen hundred and one, be amended by 
 striking out the words 'one hundred and 
 forty cadets ' and inserting in lieu thereof 
 the words 'seventy-five cadets over fifteen 
 vears of age.' " 
 See also act of March 4, 1911 (.36 Stat., 1.353), for 
 the establishment of marine schools; and 
 see act of June 30. ] 906 (34 Stat. . 817), as to 
 nautical schools in the Philippines. 
 
 1277 
 
July 1, 1902. 
 
 77, .?. STATUTES AT LARGE. 
 
 [1902, May 13. Printing of American Ephemeris and Nautical Almanac] 
 That hereafter the "usual number" of copies of the American Ephemeris and 
 Nautical Almanac shall not be printed. In lieu thereof there shall be printed 
 and bound one thousand one hundred copies of the same, uniform with the 
 ethtions printed for the Navy Department, as provided in section seventy-three, 
 j)aray;raph five, of an Act approved January twelfth, eighteen hundred and 
 ninety-five, providing for the public printing, binding, and distribution of public 
 documents; one hundred copies for the Senate, four hundred for the House, and 
 six hundred for the Superintendent of Documents for distribution to State and 
 Territorial libraries and designated depositories. — (32 Stat., 740, Res. No. 20.) 
 
 See act of January 12, 1895, section 73 (28 Stat., 
 613), and note to section 436, Revised 
 
 Statutes; see also act of July 1, 1902 (32 
 
 Stat., 678). 
 
 [1902, June 28. Blanks, books, filing devices, etc., procured by Public 
 Printer.] The Public Printer is authorized hereafter to procure and supply, 
 on the requisition of the head of any Executive Department or other Govern- 
 ment establislmient, complete manifold blanks, books, and forms, required in 
 duplicating processes; also complete patented devices mth wliich to file money- 
 order statements, or other uniform official papers, and to charge such supplies 
 to the allotment for printing and binding of the Department or Government 
 establishment requiring the same. — (32 Stat., 481, chap. 1301.) 
 
 See act of January 12, 1895, section 18 (28 Stat., 603). 
 
 [1902, July 1. Actual expenses, repeated travel.] That hereafter in cases 
 where orders are given to officers of the Navy or Marine Corps for travel to be 
 performed repeatedly between two or more places in such vicinity as in the 
 discretion of the Secretary of the Navy is appropriate, he may direct that actual 
 and necessary expenses only be allowed. — (32 Stat., 663, chap. 1368.) 
 
 See notes to sections 1566 and 1612, Revised Statutes, and see act of June 7, 1900 (31 Stat., 
 685). 
 
 [1902, July 1. Transit pay, employees in insular possessions.] The Secre- 
 tary of the Navy, in his discretion, is authorized to pay all civilian employees 
 appointed for duty in the Philippine, Hawaiian, and Samoan islands, the island 
 of Guam, and the island of Porto Rico, from the date of their sailing from the 
 United States until they report for duty to the officer under whom they are to 
 serve, and while returning to the United States by the most direct route and 
 with due expedition, a per diem compensation corresponding to their pay while 
 actually employed; and in cases where the appointee is not to fill an existing" 
 vacancy his pay while traveling may be charged to the annual appropriation of 
 the bureau concerned. — (32 Stat., 663, chap. 1368.) 
 
 See note to section 1545, Revised Statutes. 
 
 [1902, July 1. Publication of American Ephemeris and Nautical Almanac] 
 
 Hereafter there shall be published of the American Ephemeris and Nautical 
 
 Almanac two thousand five hundred copies, five hundred of which shall be for 
 
 the use of the Senate, one thousand for the use of the House of Representatives, 
 
 and one thousand for distribution or sale by the Navy Department. — (32 Stat., 
 
 678, chap. 1368.) 
 
 See act of January 12, 1895, section 73 (28 Stat., 613), and Joint Resolution of May 13, 1902 
 (32 Stat., 740). See also note to section 436, Revised Statutes. 
 
 1278 
 
Pt. 3. STATUTES AT LARGE. July 1, 1902. 
 
 [1902, July 1. Commuted rations, payment to messes.] That money accru- 
 ing from the rations of enlisted men commuted for the benefit of any mess may 
 be paid on public bills to the commissary officer by the pay officer having their 
 accounts.— (32 Stat., 680, chap. 1368.) 
 
 See section 1585, Revised Statutes, and note thereto. 
 
 [1902, July 1. Title of ''naval cadet" changed.] The title "naval cadet" 
 is hereby changed to "midshipman." — (32 Stat., 686, chap. 1368.) 
 
 See section 1512, Revised Statutes, and note thereto. 
 
 [1902, July 1, sec. 4. Public Health Service, duties in time of war.] That 
 the President is authorized, in his discretion, to utilize the Public Health and 
 Marine-Hospital Service in times of threatened or actual war to such extent 
 and in such manner as shall in his judgment promote the public interest without, 
 however, in any w4se impairing the efficiency of the service for the purposes for 
 w^hich the same was created and is maintained. — (32 Stat., 713, chap. 1370.) 
 
 The designation of the ''Public Health and 
 Marine-Hospital Service" was changed to 
 "Public Health Service" by act of August 
 14, 1912 (37 Stat., 309). 
 
 See note to section 1368, Revised Statutes, 
 under "Public Health Service," for later 
 laws on the subject; and see Joint Resolu- 
 tion of July 9, 1917 (40 Stat., 242). 
 
 [1902, July 1, sec. 5. Surgeon General, Navy, to detail officer on advisory 
 board.] That there shall be an advisory board for the hygienic laboratory 
 provided by the Act of Congress approved March third, nineteen hundred and 
 one, for consultation with the Surgeon-General of the Public Health and Marine- 
 Hospital Service relative to the investigations to be inaugurated, and the 
 methods of conducting the same, in said laboratory. Said board shall consist 
 of three competent experts, to be detailed from the Army, the Navy, and the 
 Bureau of Animal Industry by the Surgeon-General of the Army, the Surgeon- 
 General of the Navy, and the Secretary of Agriculture, respectively, which ex- 
 perts, with the director of the said laboratory, shall be ex officio members of 
 the board, and serve without additional compensation. Five other members of 
 said board shall be appointed by the Surgeon-General of the Public Health and 
 Marine-Hospital Service, with the approval of the Secretary of the Treasury, 
 who shall be skilled in laboratory work in its relation to the public health, and 
 not in the regular employment of the Government * * *. — (32 Stat., 713, 
 chap. 1370.) 
 
 See note to preceding section; see also sections 419 and 1471, Revised Statutes, and notes 
 thereto. 
 
 [1902, July 1, sec. 4. Surgeon General, Navy, to serve on board on licensing 
 sale of viruses, etc.] That the Surgeon-General of the Army, the Surgeon- 
 General of the Navy, and the supervising Surgeon-General of the Marine-Hos- 
 pital Service, be, and they are hereby, constituted a board with authority, sub- 
 ject to the approval of the Secretary of the Treasury, to promulgate from time 
 to time such rules as may be necessary in the judgment of said board to govern 
 the issue, suspension, and revocation of licenses for the maintenance of establish- 
 ments for the propagation and preparation of viruses, serums, toxins, antitoxins, 
 and analogous products, applicable to the prevention and cure of diseases of man, 
 intended for sale in the District of Columbia, or to be sent, carried, or brought 
 for sale from any State, Territory, or the District of Columbia, into any other 
 
 1279 
 
Mar. 3. 1903. Pt. 3. STATUTES AT LARGE. 
 
 State, Territory, or the District of Columbia, or from the United States into 
 any foreign country, or from any foreign country into the United States: Pro- 
 vided, That all licenses issued for the maintenance of establishments for the prop- 
 agation and preparation in any foreign country of any virus, serum, toxin, anti- 
 toxin, or product aforesaid, for sale, barter, or exchange in the United States, 
 shall be issued upon condition that the licentiates will permit the inspection of 
 the establislmients where said articles are propagated and prepared, in accord- 
 ance with section three of this Act.— (32 Stat., 729, chap. 1378.) 
 
 [1903, Jan. 12. Wearing of badges, military societies.] That the distinctive 
 badges adopted by military societies of men who served in the armies and navies 
 of the United States during the Chinese relief expedition of nineteen hundred 
 may be worn upon all occasions of ceremony by officers and men of the Army 
 and Navy of the United States who are members of said organization in their 
 o^\n right.— (32 Stat., 1229, Res. No. 2.) 
 
 See note to section 1407, Revised Statutes. 
 
 [1903, Feb. 25. Departmental books, maps, etc., transferred to Library of 
 Congress.] The head of any Executive department or bureau or any com- 
 mission of the Government is hereby authorized from time to time to turn over 
 to the Librarian of Congress, for the use of the Library of Congress, any books, 
 maps, or other material in the library of the department, bureau, or commission 
 no longer needed for its use, and in the judgment of the Librarian of Congress 
 appropriate to the uses of the Library of Congress. 
 
 Any books of a miscellaneous character no longer required for the use of 
 such department, bureau, or commission, and not deemed an advisable addition 
 to the Library of Congress, shall, if appropriate to the uses of the Free Public 
 Library of the District of Columbia, be turned over to that library for general use 
 as a part thereof. — (32 Stat., 865, chap. 755.) 
 See section 418, Revised Statutes, and note thereto. 
 
 [1903, Feb. 25. Civilian assistant, Bureau of Supplies and Accounts.] 
 Bureau of Supplies and Accounts: For a civilian assistant, who shall per- 
 form the duties of chief clerk, and in case of the death, resignation, sickness, 
 or absence of both the Paymaster-General of the Navy and liis assistant, now 
 provided for by law, unless otherwise directed by the President, as provided 
 by section one hundred and seventy-nine. Revised Statutes, such civilian 
 assistant shall become the acting chief of the Bureau * * *. — (32 Stat., 
 890, chap. 755.) 
 
 See acts of July 26, 1894 (28 Stat., 132), and March 3, 1899 (30 Stat., 1038). 
 
 [1903, Mar. 3. Clothing and small-stores fund.] For purchase of clothing 
 and small stores for issUe to the Naval service, the present fund being inade- 
 quate to meet the requirements of the service at this time; to be added to the 
 "clothing and small-stores fund," one million dollars. — (32 Stat.^ 1191, chap. 
 1010.) 
 
 See note to section 3689, Revised Statutes. 
 
 [1903, Mar. 3. Warrant officers, appointment as ensigns.] Hereafter in each 
 calendar year there may, under the restrictions imposed by existing law, be 
 
 1280 
 
Pt. 3. STATUTES AT LARGE. 
 
 Mar. 28, 1904. 
 
 appointed from the boatswains, gunners, and warrant machinists of the Navy 
 (32 Stat., 1197, chap. 1010.) 
 
 twelve ensigns 
 
 See notea to section 1405, Revised Statutes, 
 under "Machinists," and "Ensigns and 
 
 assistant paymasters appointed from war- 
 rant officers. ' ' 
 
 [1903, Mar. 3. Punishment for hazing.] That the superintendent of the 
 Naval Academy shall make such rules, to be approved by the Secretary of the 
 Navy, as will effectually prevent the practice of hazing; and any cadet found 
 guilty of participating in or encouraging or countenancing such practice shall 
 be summarily expelled from the Academy, and shall not thereafter be reap- 
 pointed to the Corps of Cadets or be eligible for appointment as a commissioned 
 officer in the Army or Navy or Marine Corps until two years after the graduation 
 of the class of which he was a member. — (32 Stat., 1198, chap. 1010.) 
 
 See notes to section 1519, Revised Statutes, for 104-105), for partial repeal of this enact- 
 later laws relating to hazing and the court- ment. 
 martial of midshipmen. See note to section 1512, Revised Statutes, as 
 
 See act of April 9, 1906, section 2 (34 Stat., to title of students at the Naval Academy. 
 
 [1903, Mar. 3. Midshipman from Porto Rico.] That hereafter there shall 
 
 be at the Naval Academy one midshipman from Porto Rico, who shall be a 
 
 native of said island, and whose appointment shall be made by the President 
 
 on the recommendation of the governor of Porto Rico. — (32 Stat., 1198, chap. 
 
 1010.) 
 
 See note to section 1513, Revised Statutes, under "Midshipmen appointed from Porto 
 Rico." 
 
 [1904, Mar. 18. Civilian employees, lump sum appropriations.] On and 
 after July first, nineteen hundred and four, it shall not be lawful for the Secre- 
 tary of the Navy to employ in the Navy Department, at Washington, District 
 of Columbia, and pay out of the appropriations for new ships, any civilian 
 expert aids, additional draftsmen, writers, copyists, and model makers, except 
 as herein or as may hereafter be specifically authorized. — (33 Stat., 117, chap. 
 716.) 
 
 See note to section 416, Revised Statutes. 
 
 [1904, Mar. 18, sec. 3. Horses and carriages, restrictions on use.] No part 
 of any money appropriated by this or any other Act shall be available for paying 
 expenses of horses and carriages or drivers therefor for the personal use of any 
 officer provided for by this or any other Act other than the President of the 
 United States, the heads of Executive Departments, and the Secretary to the 
 President: Provided, That this provision shall not apply to officials outside of 
 the District of Columbia in the performance of their public duties. This para- 
 graph shall not take effect until July first, nineteen hundred and four. — (33 
 Stat., 142, chap. 716.) 
 
 See acts of February 3, 1905, section 4 (33 Stat., 687-688), and July 16, 1914, section 5 (38 
 Stat., 508). 
 
 [1904, Mar. 28. Reprinting of documents for sale.] And the superintendent 
 of documents is hereby authorized to order reprinted, from time to time, such 
 public documents as may be required for sale, such order for reprinting to be sub- 
 ject to the approval of the Secretary or head of the Department in which such 
 public document shall have originated: Provided, That the appropriation for 
 printing and binding shall be reimbursed for the cost of such reprints from the 
 
 1281 
 
Apr. 7, 1904. Pt. S. STATUTES AT LARGE. 
 
 moneys received by the superintendent of documents from the sale of public 
 
 documents. — (33 Stat., 584, Res. No. 11.) 
 
 See act of January 12, 1895, sections 42,52, 61, and G7 (28 Stat., 607-612), as to sale of public 
 documents. 
 
 [1904, Apr. 15. Duplicate medals, where originals lost.] That in any case 
 where the President of the United States has heretofore, under any Act or 
 resolution of Congress, caused any medal to be made and presented to any 
 officer or pereon in the United States on account of distinguished or meritorious 
 services, on a proper showing made by such person to the satisfaction of the 
 President that such medal has been lost or destroyed through no fault of the 
 beneficiary, and that diligent search has been made therefor, the President is 
 hereby authorized to cause to be prepared and delivered to such person a dupli- 
 cate of such medal, the cost of which shall be paid out of any money in the 
 Treasury not otherwise appropriated. — (33 Stat., 588, Res. No. 23.) 
 
 See note to section 1407, Revised Statutes. 
 
 [1904, Apr. 27. Power plants, consolidated under Bureau of Yards and Docks.] 
 The Secretary of the Navy is liereby authorized, in his discretion, to consolidate 
 the several power plants in any or all of the several navy-yards and stations at 
 each navy-yard and station under the Bureau of Yards and Doclvs for the genera- 
 tion and distribution of light, heat, and power for all the purposes of the Navy. 
 To the above end all such plants may be transferred from other bureaus to the 
 Bureau of Yards and Docks, and all appropriations heretofore made for power 
 houses and power plants for bureaus other than Yards and Doclss are hereby 
 reappropriated and made available under the Bureau of Yards and Docks for 
 the consolidations herein provided for; and to further carry out the purposes 
 of this provision there is hereby appropriated the sum of three hundred thousand 
 dollars.— (33 Stat., 337, chap. 1622.) 
 
 [1904, Apr. 27. "Warrant officers, promotion of.] That subject to the restric- 
 tions imposed by existing law, boatswains, gunners, and warrant machinists 
 shall be eligible for appointment to the grade of ensign after four years' service 
 as warrant officers, and boatswains, gunners, carpenters, and sailmakers shall 
 be eligible for appointment as chief boatswains, chief gunners, chief carpenters, 
 and chief sailmakers after six years from date of warrant. — (33 Stat., 346, chap. 
 1622.) 
 
 See note to section 1405, Revised Statutes. 
 
 [1904, Apr. 27. Retirement of Marine officers.] That officers of the IMarine 
 Corps with creditable records who served during the civil war shall, when re- 
 tired, be retired in like manner and under the same conditions as provided for 
 officers of the Navy who served during the civil war. — (33 Stat., 349, chap. 1622.) 
 See act of June 29, 1906 (34 Stat., 554), and see note to section 1622, Revised Statutes. 
 
 [1904, Apr. 27. Mileage books, etc., payment in advance of travel.] And the 
 Secretary of the Navy is hereby authorized to continue to purchase such 
 mileage books, commutation tickets, and other similar transportation tickets 
 as may in his discretion seem necessary, and to furnish same to officers and 
 others ordered to perform travel on official business; and payment for such 
 transportation tickets upon their receipt, in accordance with commercial usage, 
 or prior to the actual performance of the travel involved, shall not be regarded 
 
 1282 
 
Ft. 3. STATUTES AT LARGE. Feb. 3. 1905. 
 
 as an advance of public money within the meaning of section thirty-six hundred 
 and forty-eight of the Revised Statutes. — (33 Stat., 403, chap. 1630.) 
 
 See sections 1566 and 3648, Revised Statutes, and notes thereto. 
 
 [1904, Apr. 27. Naval records, transferred from other Departments.] All naval 
 records, such as muster and pay rolls, orders, and reports relating to the per- 
 sonnel and operations of the Navy of the United States, from the beginning of 
 the Navy Department to the war of the rebellion, eighteen hundred and sixty- 
 one, including operations against the French navy, Tripolitan war, war of eight- 
 een hundred and twelve, operations against pirates in the West Indies, Florida 
 war, and the war with Mexico, now in any of the Executive Departments, shall 
 be transferred to the Secretary of the Navy, to be preserved. — (33 Stat., 403, 
 chap. 1630.) 
 See section 418, Revised Statutes, and note Stat., 579), and March 2, 1913 (37 Stat., 
 
 thereto; see also acts of June 29, 1906 (34 
 
 723). 
 
 [1904, Apr. 28. Transportation of supplies, vessels of United States, excessive 
 
 charges.] That vessels of the United States, or belonging to the United States, 
 
 and no others, shall be employed in the transportation by sea of coal, provisions, 
 
 fodder, or supplies of any description, purchased pursuant to law, for the use 
 
 of the Army or Navy unless the President shall find that the rates of freight 
 
 charges by said vessels are excessive and unreasonable, in which case contracts 
 
 shall be made under the law as it now exists : Provided, That no greater charges 
 
 be made by such vessels for transportation of articles for the use of the said 
 
 Army and Navy than are made by such vessels for transportation of like goods 
 
 for private parties or companies. — (33 Stat., 518-519, chap. 1766.) 
 
 See acts of March 3, 1915 (38 Stat., 944), and thereto: see also section 3718, Revised 
 
 June 15, 1917 (40 Stat., 211), and notes Statutes. 
 
 [1905, Feb. 3. Public Health Service, jurisdiction of Treasury Depart- 
 ment.] Office of Sukgeon-Geneeal of Public Health axd IVIarixe- 
 HospiTAL Service: * * * and said Service shall remain under the juris- 
 diction of the Treasury Department until otherwise hereafter specifically 
 provided by law. (33 Stat., 650-651, chap. 297.) 
 
 See joint resolution of July 9, 1917 (40 Stat., 
 242); see also acts of July 1, 1902, section 4 
 (32 Stat., 713), and October 6, 1917 (40 
 Stat., 393); and see note to section 1368, 
 Revised Statutes. 
 
 The designation of the "Public Health and 
 Marine- Hospital Service" was changed to 
 "Public Health Service" bv act of Augiist 
 14, 1912 (37 Stat., 309). 
 
 [1905, Feb. 3, sec. 4. Vehicles, restrictions on purchase and use.] No part 
 of any money appropriated by this or any other Act shall be used for purchas- 
 ing, maintaining, driving, or operating any carriage or vehicle (other than 
 those for the use of the President of the United States, the heads of the Execu- 
 tive Departments, and the Secretary to the President, and other than those 
 used for transportation of property belonging to or in the custody of the 
 United States), for the personal or official use of any officer or employee of 
 any of the Executive Departments or other Government establishments at 
 Washington, District of Columbia, unless the same shall be specifically author- 
 ized by law or provided for in terms by appropriation of money, and all such 
 carriages and vehicles so procured and used for official purposes shall have 
 conspicuously painted thereon at all times the full name of the Executive 
 
 1283 
 
See sections 177-182, and 421, Revised Statutes, 
 and notes thereto. 
 
 Mar. 3, 1905. Pt. S. STATUTES AT LARGE. 
 
 Department or other branch of the public service to which the same belong 
 and in the service of which the same are used. — (33 Stat., 687-688, chap. 297.) 
 
 See acts of March 18, 1904, sec. 3 (33 Stat., 142), and July 16, 1914, section 5 (38 Stat., 508). 
 
 [1905, Mar. 2. Sale of armament, sentimental reasons.] And individual 
 pieces of United States armament which are not needed on account of historical 
 value, and can be advantageously replaced, may be sold at a price not less 
 than their cost price, when there exist for such sale sentimental reasons 
 adequate in the judgment of the Secretary of War or Secretary of the Navy. — 
 (33 Stat., 841, chap. 1307.) 
 
 See section 1541, Revised Statutes, and acts of August 5, 1882, section 2 (22 Stat., 296), and 
 June 30, 1890 (26 Stat., 194). 
 
 [1905, Mar. 3. Assistant to chief, Bureau of Engineering.] That a line 
 officer of the Navy may be detailed as assistant to the Chief of the Bureau of 
 Steam Engineering in the Navy Department, and that such officer during 
 such detail shall receive the highest pay of his grade, and in case of death, 
 resignation, absence, or sickness of the Chief of the Bureau shall, unless other- 
 wise directed by the President, as provided by section one hundred and 
 seventy-nine of the Revised Statutes, perform the duties of such chief until 
 his successor is appointed or such absence or sickness shall cease. — (33 Stat., 
 1111, chap. 1481.) 
 
 The "Bureau of Steam Engineering" was 
 designated as "Bureau of Engineering" by 
 act of June 4, 1920 (41 Stat., 828). 
 
 [1905, Mar. 3. Eemoval of derelicts at sea.] The President in his discretion 
 may temporarily detail any vessel or vessels of the Navy to remove or destroy 
 derelicts in the course of vessels at sea. The regulations to govern the detail 
 and service of said vessels shall be prescribed by the Secretary of the Navy 
 and approved by the President. — (33 Stat., 1164, chap. 1483.) 
 
 See joint resolution of October 31, 1893 (28 Stat., 13), and see notes to sections 1529 and 
 1536, Revised Statutes. 
 
 [1905, Mar. 3. Printing and binding, illustrations.] That hereater no 
 part of the appropriations made for printing and binding shall be used for 
 any illustration, engraving, or photograph in any document or report ordered 
 printed by Congress unless the order to print expressly authorizes the same, 
 nor in any document or report of any executive department or other Govern- 
 ment establishment until the head of the executive department or Government 
 establishment shall certify in a letter transmitting such report that the illus- 
 tration is necessary and relates entirely to the transaction of public business. — 
 (33 Stat., 1213, chap. 1483.) 
 
 See act of January 12, 1895, section 94 (28 Stat., 623). 
 
 [1905, Mar. 3. Printing for Departments, authority of Congress required.] 
 Hereafter no book or document not having to do with the ordinary business 
 transactions of the Executive Departments shall be printed on the requisition 
 of any Executive Department or unless the same shall have been expressly 
 authorized by Congress. — (33 Stat., 1249, chap. 1484.) 
 
 See act of January 12, 1895, sections 86 and 94 (28 Stat., 622, 623). 
 
 1284 
 
Pt. 3. STATUTES AT LARGE. Mar. 30, 1906. 
 
 [1906, Mar. 30. Printing and binding, Departmental reports, etc., appro- 
 priations chargeable ; apportionment of allotments.] That hereafter, in the 
 printing and binding of documents or reports emanating from the Executive 
 Departments, bureaus, and independent offices of the Government, the cost of 
 which is now charged to the allotment for printing and binding for Congress, 
 or to appropriations or allotments of appropriations other than those made to 
 the Executive Departments, bm-eaus, or independent offices of the Govern- 
 ment, the cost of illustrations, composition, stereotyping, and other work 
 involved in the actual preparation for printing, apart from the creation of 
 manuscript, shall be charged to the appropriation or allotment of appropriation 
 for the printing and binding of the Department, bureau, or independent office 
 of the Government in which such documents or reports originate; the balance 
 of cost shall be charged to the allotment for printing and binding for Congress, 
 and to the appropriation or allotment of appropriation of the Executive Depart- 
 ment, bureau, or independent office of the Government, in proportion to the 
 niunber delivered to each; the cost of any copies of such documents or reports 
 distributed other\\*ise than thi'ough Congress, or the Executive Departments, 
 bureaus, and independent offices of the Government, if such there be, shall be 
 charged as heretofore : Provided^ That on or before the first day of December in 
 each fiscal year each Executive Department, bureau, or independent office of 
 the Government to which an appropriation or allotment of appropriation for 
 printing and binding is made, shall obtain from the Public Printer an estimate 
 of the probable cost of all publications of such Department, bureau, or inde- 
 pendent office now required by law to be printed, and so much thereof as would, 
 under the terms of this resolution, be charged to the appropriation or allotment 
 of appropriation of the Department, bureau, or independent office of the Gov- 
 ernment in which such publications originate, shall thereupon be set aside to be 
 applied only to the printing and binding of such documents and reports, and 
 shall not be available for any other purpose until all of such allotment of cost 
 on account of such documents and reports shall have been fully paid. — (34 Stat., 
 825-826, Res. No. 13.) 
 
 See act of January 12, 1895, section 93 (28 Stat., 623). 
 
 [1906, Mar. 30. Printing of documents in two or more editions.] That the 
 Joint Committee on Printing is herebv authorized and directed to establish 
 rules and regulations, from time to time, which shall be observed by the Public 
 Printer, whereby public documents and reports printed for Congress, or either 
 House thereof, may be printed in two or more editions, instead of one, to meet 
 the public requirements: Provided, That in no case shall the aggregate of said 
 ecfitions exceed the number of copies now authorized or which may hereafter be 
 authorized : And provided further, That the number of copies of any public 
 document or report now authorized to be printed or which may hereafter be 
 authorized to be printed for any of the Executive Departments, or bureaus or 
 branches thereof, or independent offices of the Government may be supplied 
 in two or more editions, instead of one, upon a requisition on the Pubfic Printer 
 by the official head of such Department or independent office, but in no case 
 shall the aggregate of said editions exceed the number of copies now authorized, 
 or which may hereafter be authorized: Provided further, That nothing herein 
 
 1285 
 
Apr. 9, 1906. Pt. S. STATUTES AT LARGE. 
 
 shall operate to obstruct the printing of the full number of any document or 
 report, or the allotment of the full quota to Senators and Representatives, as 
 now authorized, or which may hereafter be authorized, when a legitimate 
 demand for the full complement is known to exist. — (34 Stat., 826, Res. No. 14.) 
 Sec note to act of January 12, 1895, section 89 (28 Stat., 622-623). 
 
 [1906, Apr. 9. Dismissal of midshipmen; board of inquiry.] That it shall be 
 the duty of the Superintendent of the United States Naval Academy, whenever 
 he shall believe the continued presence of any midshipman at the said academy 
 to be contrary to the best interests of the service, to report in writing such fact, 
 with a fuU statement of the facts upon which are based his reasons for such 
 belief, to the Secretary of the Navy, who, if after due consideration of the said 
 report he shall deem the superintendent's said belief reasonable and well founded, 
 shall cause a copy of the said report to be served upon the said midshipman and 
 require the said midshipman to show cause, in writing and within such time as 
 the said Secretary shall deem reasonable, why he should not be dismissed from 
 the said academy; and after due consideration of any cause so shown the said 
 Secretary may, in his discretion, but with the written approval of the President, 
 dismiss such midshipman from the said academy. And the truth of any issue 
 of fact so raised, except upon the record of demerit, shall be determined by a 
 board of inquiry convened by the Secretary of the Navy under the rules and 
 regulations for the government of the Navy. — (34 Stat., 104, chap. 1370.) 
 
 Courts of inquiry are regulated by section 1624, 
 Revised Statutes, articles 55-60. 
 
 See notes to section 1519, Revised Statutes, 
 under "Suspension of midshipman with- 
 out pay," "Dismissal without court-mar- 
 tial," and "Effect of dismissal." 
 
 [1906, Apr. 9, sec. 2. Hazing, dismissal without court-martial; exception; 
 prior statutes amended.] That so much of the acts approved June twenty-thirtl, 
 eighteen hundred and seventy-four, and March third, nineteen hundred and 
 three, as requires the Superintendent of the United States Naval Academy to 
 convene a court-martial in all cases when it shall come to the knowledge of the 
 said superintendent that any midshipman has been guilty of the offense com- 
 monly kno^vn as '^hazing," and declares the finding of a court-martial so con- 
 vened, when approved by the said superintendent, final, and directs that any 
 midshipman found guilty by such court-martial shall be summarily dismissed 
 from the said academy, and also all other Acts or parts of Acts inconsistent with 
 the present Act are hereby repealed, and that the offense known as '^ hazing" 
 may hereafter be proceeded against, dealt with, and punished as offenses against 
 good order and discipline and for violation and breaches of the rules of said 
 academy. But no midshipman shall be dismissed for a single act of hazing 
 except under the provisions of section three of this Act, — (34 Stat., 104, chap. 
 1370.) 
 
 As to definition of hazing, see section 4 of this 
 act set forth below, and note to section 1519, 
 Revised Statutes, under "Court-martial of 
 midshipmen for hazing;" as to interpreta- 
 tion of "a single act of hazing," also see 
 
 See acts of .Tune 23, 1874 (18 Stat., 203-204), 
 and March 3, 1903 (32 Stat., 1198). As to 
 partial repeal of said acts by this section, 
 see note to section 1519, Revised Statutes, 
 under "Dismissal without court-martial." 
 
 note last cited. 
 
 [1906, Apr. 9, sec. 3. Court-martial for hazing; punishment; reviewing 
 authority.] That the Superintendent of the United States Naval Academy 
 may, in his discretion and with the approval of the Secretary of the Navy, 
 
 1286 
 
PL 3. STATUTES AT LARGE. Apr. 9, 1906. 
 
 cause any midshipman in the said academy to be tried by court-martial for the 
 offense of hazing, as provided by the Act approved June twenty-thhd, eighteen 
 hunched and seventy-four, and such court-martial, upon conviction, may 
 sentence such midshipman to any punishment authorized by the said Act or 
 by the Act approved March third, nineteen hundred and three, or authorized 
 for any violation or breach of the rules of the said academy by the said rules, 
 or, in cases of brutal or cruel hazing may, in addition to dismissal, sentence such 
 midshipman to imprisoimient for a period not exceeding one year: Provided, 
 That such midshipman shall not be confined in a military or naval prison or 
 elsewhere with men who have been convicted of crimes or misdemeanors; and 
 such finding and sentence shall be subject to review by the convening authority 
 and by the Secretary of the Navy, as in the cases of other courts-martial. — 
 (34 Stat., 104-105, chap. 1370.) 
 
 See acts of June 23, 1874 (18 Stat., 203-204), Not to be dismissed for single act of hazing 
 
 and March 3, 1903 (32 Stat., 1198), as modi- except by sentence of court-martial. See 
 
 tied by section 2 of this act, set forth above. section 2 of this act, set forth above, and 
 
 Seealsoactof March 2, 1895 (28 Stat., 838), note to section 1519, Revised Statutes, 
 
 and note to section 1519, Revised Statutes. under "Dismissal without court-martial," 
 
 See act of February 16, 1909, section 9 (35 Stat., and "Court-martial of midshiimien for 
 
 621), and reference thereunder, as to action hazing." See section 6 of this act, set 
 
 by Secretary of the Navy on proceedings forth below, as to waiver of com't-martial 
 
 and sentences of courts-martial. in certain cases. 
 
 [1906, Apr. 9, sec. 4. "Hazing" defined.] That the offense of "hazing," as 
 mentioned in this Act, shall consist of any unauthorized assumption of authority 
 by one midshipman over another midshipman w^hereby the last-mentioned 
 midshipman shall or may suffer or be exposed to suffer any cruelty, indignity, 
 humiliation, hardship, or oppression, or the deprivation or abridgement of 
 any right, privilege, or advantage to which he shall be legally entitled. — (34 
 Stat., 105, chap. 1370.) 
 
 See note to section 1519, Re\T-sed Statutes, under "Court-martial of midshipmen for hazing." 
 
 [1906, Apr. 9, sec. 5. Punishment of naval officers and civilian instructors 
 for failing to report offenses ; dismissal mandatory.] That it shall be the duty 
 of every professor, assistant professor, academic officer, or any cadet officer or 
 cadet petty officer, or instructor, as well as every other officer stationed at 
 the United States Naval Academy, to promptly report to the superintendent 
 thereof any fact which comes to his attention tending to indicate any violation 
 by a midshipman or midshipmen of any of the provisions of this Act or any 
 violation of the regulations of the said academy. Any naval officer attached 
 to the academy who shall fail to make such report as provided in this section 
 shall be tried by court-martial for neglect of duty and if convicted he shall be 
 dismissed from the service. Any civilian instructor attached to the academy 
 who shall fail to make such report as provided in this section shall be dismissed 
 by the superintendent of the academy upon the approval of the Secretary of 
 the Navy.— (34 Stat., 105, chap. 1370.) 
 
 [1906, Apr. 9, sec. 6. Waiver of court-martial in certain cases.] That this 
 Act shall take effect from the date of its approval, but no midshipman now 
 connected with the United States Naval Academy shall, by reason of its enact- 
 ment, be punished for any offense heretofore committed otherwise than in 
 pursuance of the sentence of a court-martial (if, by existing law, such sentence 
 would be now necessary for such punishment) or punished more severely than 
 
 1287 
 
June 12, 1906. Pt. 3. STATUTES AT LARGE. 
 
 is now l)y law allowed for any offense heretofore committed: Provided, That 
 any midshipman now in said Naval Academy may waive his right to trial by 
 court-martial under existing law for any offense of hazing heretofore com- 
 mitted and may accept punishment under the provisions of section two of this 
 Act.— (34 Stat., 105, chap. 1370.) 
 
 [1906, June 8. Preservation of historic monuments, etc., on public lands.] 
 That any person who shall appropriate, excavate, injure, or destroy any historic 
 or prehistoric ruin or monument, or any object of antiquity, situated on lands 
 owned or controlled by the Government of the United States, without the 
 permission of the Secretary of the Department of the Government having 
 jurisdiction over the lands on which said antiquities are situated, shall, upon 
 conviction, be fined in a sum of not more than five hundred dollars or be impris- 
 oned for a period of not more than ninety days, or shall suffer both fine and 
 imprisonment, in the discretion of the court. 
 
 Sec. 2. That the President of the United States is hereby authorized, in 
 his discretion, to declare by pubUc proclamation historic landmarks, historic 
 and prehistoric structures, and other objects of historic or scientific interest 
 that are situated upon the lands owned or controlled by the Government of 
 the United States to be national monuments, and may reserve as a part thereof 
 parcels of land, the limits of which in all cases shall be confined to the smallest 
 area compatible with the proper care and management of the objects to be 
 protected: Provided, That when such objects are situated upon a tract covered 
 by a bona fide unperfected claim or held in private ownership, the tract, or 
 so much thereof as may be necessary for the proper care and management of 
 the object, may be relinquished to the Government, and the Secretary of the 
 Interior is hereby authorized to accept the relinquishment of such tracts in 
 behalf of the Government of the United States. 
 
 Sec. 3. That permits for the examination of ruins, the excavation of 
 archaeological sites, and the gathering of objects of antiquity upon the lands 
 under their respective jurisdictions may be granted by the Secretaries of the 
 Interior, Agriculture, and War to institutions which they may deem properly 
 qualified to conduct such examination, excavation, or gathering, subject to 
 such rules and regulations as they may prescribe: Provided, That the examina- 
 tions, excavations, and gatherings are undertaken for the benefit of reputable 
 museums, universities, colleges, or other recognized scientific or educational 
 institutions, with a view to increasing the knowledge of such objects, and that 
 the gatherings shall be made for permanent preservation in public museums. 
 
 Sec. 4. That the Secretaries of the Departments aforesaid shall make and 
 publish from time to time uniform rules and regulations for the purpose of 
 carrying out the provisions of this Act. — (34 Stat., 225, chap. 3060.) 
 
 [1906, June 12. Contracts or purchases in excess of appropriations.] That 
 no contract or purchase on behalf of the United States shall be made, unless the 
 same is authorized by law or is under an appropriation adequate to its fulfill- 
 ment, except in the War and Navy Departments, for clothing, subsistence, 
 forage, fuel, quarters, transportation, or medical and hospital supplies, which, 
 however, shall not exceed the necessities of the current year. — -(34 Stat., 255, 
 chap. 3078.) 
 
 See section 3732, Re\T.sed Statutes, and note thereto. 
 
 1288 
 
PL 3. STATUTES AT LARGE. June 20, 1906. 
 
 [1906, June 14. Aliens fishing in Alaskan waters; seizures and arrests by 
 naval officers.] Sec. 4. That the collector of customs of the district of Alaska 
 is hereby authorized to search and seize every foreign vessel and arrest every 
 person violating any provision of this Act or any regulation made thereunder, 
 and the Secretary of Commerce and Labor shall have power to authorize 
 officers of the Navy and of the Revenue-Cutter Service and agents of the 
 Department of Commerce and Labor to likewise make such searches, seizures, 
 and arrests. If any foreign vessel shall be found within the waters to which 
 this Act applies, having on board fresh or cured fish and apparatus or imple- 
 ments suitable for killing or taking fish, it shall be presumed that the vessel 
 and apparatus were used in violation of this Act until it is other^\'ise sufficiently 
 proved. And every vessel, its tackle, apparatus, or implements so seized shall 
 be given into the custody of the United States marshal of either of the districts 
 mentioned in section three of this Act, and shall be held by him subject to the 
 proceedings provided for in section two of this Act. The facts in connection 
 with such seizure shall be at once reported to the United States district attorney 
 for the district to which the vessel so seized shall be taken, whose duty it shall 
 be to institute the proper proceedings. — (34 Stat., 264, chap. 3299.) 
 
 Sec. 5. That the Secretary of Commerce and Labor shall have power to 
 
 make rules and regulations not inconsistent with law to carry into effect the 
 
 provisions of this Act. And it shall be the duty of the Secretary of Commerce 
 
 and Labor to enforce the provisions of this Act and the rules and regulations 
 
 made thereunder, and for that purpose he may employ, through the Secretary 
 
 of the Treasury and the Secretary of the Navy, the vessels of the United States 
 
 Revenue-Cutter Service and of the Navy: Provided, however, That nothing 
 
 contained in this Act shall be construed as affecting any existing treaty or 
 
 convention between the United States and any foreign power. — (34 Stat., 264, 
 
 chap. 3299.) 
 
 The designation of the Department of Com- Ser\-ice has been changed to Coast Guard, 
 
 merce and Labor and the Secretary of that (Act Jan. 28, 1915, 38 Stat., 800.) 
 
 Department has been changed to Depart- These sections were part of an act "to prohibit 
 
 ment of Commerce, and Secretaiy of Com- aliens from fishing in the waters of xVlaska." 
 
 merce. (Act Mar. 4, 1913, 37 Stat., 736.) See section 1529, Revised Statutes, and note 
 
 The designation of the Revenue-Cutter thereto. 
 
 [1906, June 16. Officers advanced for heroism, additional numbers.] That 
 officers of the Navy and i\Iarine Corps advanced in rank for eminent and con- 
 spicuous conduct in battle or extraordinary heroism, and who since such 
 advancement have been or may hereafter be promoted, shall from the date 
 of the passage of this Act be carried as additional numbers of each grade in 
 which they serve.— (34 Stat., 296, chap. 3338.) 
 
 See act of March 3, 1901 (31 Stat., 1108), and 
 sections 1506, 1507, and 1605, Revised 
 Statutes, and notes thereto. See also note 
 to section 1303, Revised Statutes, under 
 "Additional officers are authorized," etc. 
 
 This act was entitled "An Act To extend the 
 pro\dsions of the Act of March third, nine- 
 teen hundred and one, to officers of the 
 Na\y and Marine Corps advanced at any 
 time under the provisions of sections fifteen 
 hundred and six and sixteen hundred and 
 five for eminent and conspicuous conduct 
 in battle." 
 
 [1906, June 20, sec. 4. Naval vessels to enforce sponge law.] That it shall 
 be the duty of the Secretary of Commerce and Labor to enforce the provisions 
 of this Act, and upon his request the Secretary of the Treasury and the Secre- 
 
 1289 
 
June 22, 1906. Pt. S. STATUTES AT LARGE. 
 
 tary of the Navy may employ the vessels of the Revenue-Cutter Service and 
 of the Navy, respectively, to that end.— (34 Stat., 314, cliap. 3442.) 
 
 This section was part of an act "to regulate the 
 landing, delivery,cure, and sale of sponges, " 
 applicable to "the -waters of the Gulf of 
 Mexico or Straits of Florida." 
 
 See section 1529, Revised Statutes, and note 
 thereto. 
 
 The designation of the Secretary of Commerce 
 
 and Labor has been changed to Secretary 
 
 of C ommerce. (Act. Mar. 4, 1913, 37 Stat., 
 
 73G.) 
 The designation of the Revenue-Cutter Ser\-ice 
 
 has been changed to Coast Guard. (Act 
 
 Jan. 28, 1915, 38 Stat., 800.) 
 
 [1906, June 22, sec. 4. Estimates, form and arrangement of; appropria- 
 tion bills; Book of Estimates.] Hereafter the estimates for expenses of the 
 Government, except those for sundry civil expenses, shall be prepared and 
 submitted each year according to the order and arrangement of the appropria- 
 tion Acts for the year preceding. And any changes in such order and arrange- 
 ment, and transfers of salaries from one office or bureau to another ofTice or 
 bureau, or the consolidation of ofhces or bureaus desired by the head of any 
 Executive Department may be submitted by note in the estimates. The 
 committees of Congress in reporting general appropriation bills shall, as far as 
 may be practicable, follow the general order and arrangement of the respective 
 appropriation Acts for the year preceding. 
 
 Hereafter the heads of the several E?vecutive Departments and all other 
 officers authorized or required to make estimates for the public service shall 
 include in their annual estimates furnished the Secretary of the Treasury for 
 inclusion in the Book of Estimates all estimates of appropriations required 
 for the service of the fiscal year for which they are prepared and submitted, 
 and special or additional estimates for that fiscal year shall only be submitted 
 to carry out laws subsequently enacted, or when deemed imperatively neces- 
 sary for the public service by the Department in which they shall originate, 
 in which case such special or additional estimate shall be accompanied by a 
 full statement of its imperative necessity and reasons for its omission in the 
 annual estimates. — (34 Stat., 448-449, chap. 3514.) 
 
 Stat., 415), and September 8, 1916, section 
 4 (39 Stat., 830). 
 
 See sections 430 and 3660, Revised Statutes; 
 see also acts of March 4, 1909, section 4 (35 
 Stat., 907), August 23, 1912, section 9 (37 
 
 [1906, June 22, sec. 6. Transfer of employees between Departments.] It 
 shall not be lawful hereafter for any clerk or other employee in the classified 
 service in any of the Executive Departments to be transferred from one Depart- 
 ment to another Department until such clerk or other employee shall have 
 served for a term of three years in the Department from which he desires to be 
 transferred.— (34 Stat., 449, chap. 3514.) 
 
 Stat., 498); and see notes to sections 169 
 and 416, Revised Statutes. 
 
 See amendments to this section in acts of Octo- 
 ber 6, 1917, sections 6 and 7 (40 Stat., 
 383-384), and March 28, 1918, section 2 (40 
 
 [1906, June 22, sec. 6. Restrictions on details to Departments from outside 
 
 of District.] Hereafter it shall be unlawful to detail civil officers, clerks, or 
 other subordinate employees who are authorized or employed under or paid 
 from appropriations made for the military or naval establishments, or any other 
 branch of the public service outside of the District of Columbia, except those 
 officers and employees whose details are now specially provided by law, for 
 duty in any bureau, office, or other division of any Executive Department in 
 
 1290 
 
See notes to sections 169 and 416, Revised 
 Statutes. 
 
 Pt. 3. STATUTES AT LARGE. June 28, 1906. 
 
 the District of Columbia, except temporary details for duty connected with their 
 
 respective ofFices.^ — (34 Stat., 449, chap. 3514.) 
 
 Similar provision "waa contained in act of 
 August 5, 1882, section 4 (22 Stat., 255), 
 and punishment for violation of that section 
 is prescribed by act of August 23, 1912, 
 sections (37 Stat., 414). 
 
 [1906, June 22. Retirement of enlisted men, service credited.] That in 
 computing the necessary thirty years' time for the retirement of petty ofhcers 
 and enlisted men of the Navy, all services in the Army, Navy, or Marine Corps 
 shall be credited. — (34 Stat., 451, chap. 3518.) 
 
 See act of March 3, 1899, section 17 (30 Stat., 1008), and laws noted thereunder. 
 
 [1906, June 26. Official envelopes procured by Postmaster General.] The 
 Postmaster-General shall contract, for a period not exceeding four years, for 
 all envelopes, stamped or otherwise, designed for sale to the public, or for use 
 by the Post-Office Department, the postal service, and other Executive Depart- 
 ments, and all Government bureaus and establishmentsi and the branches of 
 the service coming under their jurisdiction, and may contract for them to be 
 plain or with such printed matter as may be prescribed by the Department 
 making requisition therefor: Provided, That no envelope shall be sold by the 
 Government containing any lithographing or engraving, nor any printing nor 
 advertisement, except a prmted request to return the letter to the writer. — 
 (34 Stat., 476, chap. 3546.) 
 
 See act of January 12, 1895, section 96 (28 Stat., 624), which this provision amends. 
 
 [1906, June 26. Penalty envelopes, use of.] That hereafter no article, 
 package, or other matter, except postage stamps, stamped envelopes, news- 
 paper wrappers, postal cards, and internal-revenue stamps, shall be admitted to 
 the mails under a penalty privilege, unless such article, package, or other 
 matter, except postage stamps, stamped envelopes, newspaper wrappers, postal 
 cards, and internal-revenue stamps would be entitled to admission to the mails 
 under laws requiring payment of postage. 
 
 That hereafter it shall be unlawful for any person entitled under the law to 
 the use of a frank to lend said frank or permit its use by any committee, organ- 
 ization, or association, or permit its use by any person for the benefit or use of 
 any committee, organization, or association: Provided, That this provision 
 shall not apph" to any committee composed of Members of Congress. — (34 Stat., 
 477, chap. 3546.) 
 
 See act of March 3, 1877, sections 5 and 6 (19 Stat., 335-330), and laws noted thereunder. 
 
 [1906, June 28. Guam and Samoa, etc., acknowledgment of deeds.] That 
 deeds and other instruments affecting land situate in the District of Colum- 
 bia or any Territory of the United States may be acknowledged in the islands 
 of Guam and Samoa or in the Canal Zone before any notary public or judge, 
 appointed therein by proper authorit}^, or by any officer therein who has ex 
 officio the powers of a notary public: Provided, That the certificate by such 
 notary in Guam, Samoa, or the Canal Zone, as the case may be, shall be accom- 
 panied by the certificate of the governor or acting governor of such place to the 
 effect that the notary taking said acknowledgment was in fact the officer he 
 purported to be; and any deeds or other instruments affecting lands so situate, 
 so acknowledged since the first day of January, nineteen hundred and five, and 
 
 54641°— 22 82 1291 
 
June 29, 1906. 
 
 rt. .?. s;ta tutes a t large. 
 
 accompanied ]\v such certificate shall have the same effect as such deeds or 
 other instruments hereafter so acknowledged and certified. — (34 Stat., 552, 
 chap. 3585.) 
 
 See section 183, Revised Statutes, and note 
 tliorcto, as to oafhs. 
 
 Status of Samoa and naval governor.— 
 In this statute ("onpjress rerop:nizes and adopts 
 the action of the President, taken pursuant to 
 an opinion of the Attorney General, in com- 
 missioninc: a naval ofTicer as governor of Amer- 
 i(an Samoa. (File 3931-1429:36, Dec. 23, 
 1921, citing 25 Op. Atty. Gen., 592.) 
 
 American Samoa is not conquered territory; 
 nor was it acquired by the United States by 
 treaty ■with any foreign country ha\dng power 
 to dispose of it in that manner, although the 
 Senate on February 13, 1900, ratified a con- 
 vention between Great Britain, Germany, and 
 the United States, under which Great Britain 
 and Germany renounced to the United States 
 all claim to the islands constituting what is 
 now known as American Samoa. (File 3931- 
 1429:36, Dec. 23, 1921.) 
 
 The sovereignty of the United States is 
 based upon a formal cession of the island of 
 Tutuila to the United States on April 17, 1900, 
 by the chiefs of that island, and the subsequent 
 recognition of the authority of the United 
 States over Manua by the chiefs of said island 
 on July 15, 1905. These cessions were ac- 
 cepted by the President of the United States, 
 and full information with respect thereto was 
 communicated to Congress, and the action of 
 the President was adopted and approved in a 
 number of separate statutory enactments. 
 (File 3931-1429:36, Dec. 23, 1921.) 
 
 By act of August 5, 1909, section 1 (36 Stat., 
 11), a certain rate of duty was prescribed "upon 
 all articles imported from any foreign country 
 into the United States or into any of its pos- 
 sessions (except the Philippine Islands and the 
 islands of Guam and Tutuila)," thereby 
 recognizing and describing Tutuila, one of the 
 principal islands of American Samoa, as a 
 "possession" of the United States. (File 
 3931-1429:36, Dec. 23, 1921, citing 30 Op. 
 Attv. Gen., 231.) 
 
 Prior legislation had also recognized the 
 islands of Tutuila and Samoa as "possessions 
 of the United Stales." (File 3931-1429:36, 
 Dec. 23, 1921, citing 25 Op. Atty. Gen., 128, 
 130, 131.) 
 
 By act of August 29, 1916 (39 Stat., 607), 
 Congress made appropriation for a radio station 
 in "American Samoa," thereby recognizing 
 said islands as American territory. (File 3931- 
 1429:36, Dec. 23, 1921.) 
 
 By act of March 3, 1919 (40 Stat., 1292), 
 Congress proAddcd for a census of American 
 Samoa to be taken by the governor of said 
 islands in accordance with plans approved by 
 the United States Director of the Census, 
 thereby recognizing the jurisdiction of the 
 United States over American Samoa, and also 
 that the chief executive charged ■n-ith adminis- 
 tration thereof is "governor" of said islands. 
 (File 3931-1429:36, Dec. 23, 1921.) 
 
 The government established by the President 
 in American Samoa ha^ving been recognized 
 and acquiesced in by Congress, said govern- 
 ment must be recognized by all indi\-iduals 
 who have occasion to deal therewith as the 
 lawfully established government for American 
 Samoa, and that said government continues as 
 such until Congress sees fit to proA'ide other- 
 wise. (File 3931-1429:36, Dec. 23, 1921.) 
 
 Under the system of government which has 
 been established in American Samoa, the 
 individual commis.sioned by the President as 
 governor thereof possesses supreme legislative, 
 executive, and judicial powers of government 
 in relation thereto, except in so far as restricted 
 by the President or by the enactments of 
 Congress. (File 3931-1429:36, Dec. 23, 1921.) 
 
 For other cases, see generally notes to Con- 
 stitution, Article I, section 8, clause 11, Article 
 II, section 3 ("Duty to commission officers"), 
 and Article IV, section 3, clause 2. 
 
 [1906, June 29. Refund of enlistment bounty.] That the Secretary of the 
 Navy may, in his discretion, require the whole or a part of the bounty allowed 
 upon enlistment to be refunded in cases where men are discharged during the 
 first year of enlistment, by request, for inaptitude, as undesirable, or for dis- 
 ability not incurred in line of duty. — (34 Stat., 553, chap, 3590.) 
 
 This provision is repeated in act of March 2, 
 1907 (34 Stat., 1176). 
 
 Refund in cases of minors discharged on re- 
 quest of parents or guardians, is pro\'ided 
 for in act of March 3, 1915 (38 Stat., 931). 
 
 Refund in cases of men discharged within six 
 months of enlistment is authorized by a 
 subsequent provision of this act set forth 
 below (34 Stat., 5-56). 
 
 See act of March 1, 1889 (25 Stat., 781), as to 
 furnishing of bounty upon enlistment. 
 
 See notes to sections 1418, 1569, and 3689, 
 Revised Statutes; and see note to section 
 1556, Re\ised Statutes, as to uniform gra- 
 tuitv in the Naval Reserve Force. See 
 also" act of March 3, 1915 (.38 Stat., 932). 
 
 Purchase of discharge was authorized bv act of 
 Mar. 3, 1893 (27 Stat., 717); and furlough 
 "udthout pay in lieu of discharge by pur- 
 chase, and, under the same conditions, 
 was authorized by act of August 29, 1916 
 (39 Stat., 580). 
 Refund not authorized in absence of 
 statute. — Prior to this enactment, it was held 
 by the Attorney General that regulations 
 issued by the Secretary of the Navy, requiring 
 a refund of enlistment bounty in cases of ap- 
 prentices discharged \vithin a year after enlist- 
 ment, for disability not incurred in line of 
 dutv, were inconsistent with law, and void. 
 (25 'Op. Atty. Gen., 270. See note to act of 
 Mar. 1, 1889, 25 Stat., 781.) 
 
 1292 
 
Pt. 3. STATUTES AT LARGE. June 29, 1906. 
 
 [1906, June 29. Retirement of Navy officers for Civil War service.] That 
 any officer of the Navy not above the grade of captain who served with crecUt 
 as an officer or as an enhsted man in the regular or volunteer forces during the 
 civil war prior to April ninth, eighteen hundred and sixty-five, otherwise than 
 as a cadet, and whose name is borne on the official register of the Navy, and 
 who has heretofore been, or may hereafter be, retired on account of wounds or 
 disability incident to the service or on account of age or after forty years' 
 service, may, in the discretion of the President, by and with the advice and 
 consent of the Senate, be placed on the retired list of the Navy with the rank 
 and retired pay of one grade above that actually held by him at the time of 
 retirement: Provided, That this act shall not apply to any officer who received 
 an advance of grade at or since the date of his retirement or who has been 
 restored to the Navy and placed on the retired list by virtue of the provisions 
 of a special act of Congress. — (34 Stat., 554, chap. 3590.) 
 
 See act of March 3, 1899, section 11 (30 Stat., 
 1007), and act March 3, 1909 (35 Stat., 
 753); and see note to section 1457, Revised 
 Statutes; see also sections 1443-1465, Re- 
 \'ised Statutes, relating to retired officers 
 of the Navy. 
 
 See section 1588, Revised Statutes, as to pay of 
 retired officers. 
 Midshipman service during the Civil 
 
 War. — As to whether ser\'ice as a midshipman 
 
 during the Ci\al War was servdce as an officer 
 
 of the Navy within the meaning of section 11 of 
 the Navy personnel act of IMarch 3, 1899 (30 
 Stat., 1007); and the effect of this enactment 
 upon said provision of the personnel act, as 
 applied to one who served as a midshipman in 
 the Civil War, see the following cases: Jasper 
 V. United States (38 Ct. Cls., 202, 40 Ct. Cls., 76); 
 Moser w. United States (42 Ct. Cls., 86); Jasper t). 
 United States (43 Ct. Cls., 368); United States 
 ex rel. Moser v. Meyer (38 App. D. C, 13); 
 Moser v. United States (49 Ct. Cls., 285). 
 
 [1906, June 29. Retirement of Marine officers for Civil War service.] That 
 any officer of the Marine Corps below the grade of brigadier-general who served 
 with credit as an officer or as an enlisted man in the regular or volunteer forces 
 during the civil war prior to April ninth, eighteen hundred and sixty-five, other- 
 wise than as a cadet, and whose name is borne on the official register of the 
 Marine Corps, and who has heretofore been, or may hereafter be, retired on 
 account of wounds or disability incident to the service, or on account of age or 
 after forty years' service, may, in the discretion of the President, by and with 
 the advice and consent of the Senate, be placed on the retired list of the Marine 
 Corps with the rank and retired pay of one grade above that actually held by 
 him at the time of retirement: Provided, That this act shall not apply to any 
 officer who received an advance of grade since the date of his retirement or who 
 has been restored to the Marine Corps and placed on the retired list by virtue 
 of the provisions of a special act of Congress. — (34 Stat., 554, chap. 3590.) 
 
 See act of April 27, 1904 (33 Stat., 349); and see note to section 1622, Revised Statutes. 
 
 [1906, June 29. Shore duty pay, naval officers.] That the provision con- 
 tained in section thirteen of an act approved March third, eighteen hundred and 
 ninety-nine, entitled "An act to reorganize and increase the efficiency of the 
 personnel of the Navy and Marine Corps of the United States," reading as 
 follows: ^'Provided, That such officers when on shore shall receive the allow- 
 ances, but fifteen per centum less pay than when on sea duty; but this provision 
 shall not apply to warrant officers commissioned under section twelve of this 
 act," be, and the same is hereby, repealed. — (34 Stat., 554, chap. 3590.) 
 
 See note to sections 1556 and 1571, Revised Statutes; and see act of March 3, 1899, section 
 13 (30 Stat., 1007). 
 
 1293 
 
June 29, 1906. Pt. 3. STATUTES AT LARGE. 
 
 [1906, June 29. Refund of enlistment outfits.] That liereafter the Secre- 
 tary of the Navy may, in his discretion, require the whole or a part of the cost 
 of outfits allowed upon enlistment to be refunded in cases where men are dis- 
 charged during the first six months of enlistment for any cause other than 
 disability incurred in line of duty. — (34 Stat., 556, chap. 3590.) 
 
 See provision in this act as to refund on discharge during first year of enlistment (34 Stat., 
 55:5\ and note thereto. 
 
 [1906, June 29. Naval Home, employing beneficiaries.] That for the per- 
 formance of such additional services in and about the Naval Home as may be 
 necessary, the Secretary of the Navy is authorized' to employ, on the recom- 
 mendation of the governor, beneficiaries in said home, whose compensation 
 shall be fixed by the Secretary and paid from the appropriation for the support 
 of the home.— (34 Stat., 557, chap. 3590.) 
 
 This pro\ision was repeated in the annual the Naval Home, have contained the fol- 
 
 naval appropriation acts, pro\-iding for the lowing clause: "*_ * * emplo>Ttient of 
 
 maintenance of the Naval Home, to and such beneficiaries in and about the Naval 
 
 including the act of August 22, 1912 (39 Home as may be authorized by the Secre- 
 
 Stat., 334-335), since which time the an- tary of the Na\^', on the recommendation 
 
 nual appropriation acts for the naval serv- of the governor." (E. g., act June 4, 1920, 
 
 ice, in pro%iding for the maintenance of 41 Stat., 818.) 
 
 [1906, June 29. Chief of Bureau of Yards and Docks.] The Chief of the 
 Bureau of Yards and Docks shall be selected from the members of the Corps 
 of Civil Engineers of the Navy having not less than seven years' active service. — 
 (34 Stat., 564, chap. 3590.) 
 
 See section 422, Re\-ised Statutes, and note thereto. 
 
 [1906, June 29. Naval Academy, admission of foreign students.] No person 
 shall be admitted for instruction at the Naval Academy at Annapolis from any 
 foreign country except upon authority of law hereafter enacted. — (34 Stat., 
 577, chap. 3590.) 
 
 See note to section 1513, Revised Statutes. 
 
 [1906, June 29. Appointment of midshipmen; nomination of candidates, 
 etc.] Hereafter the Secretary of the Navy shall, as soon as possible after the 
 first day of June of each year prececling the graduation of midshipmen in the 
 succeeding year, notify in writing each Senator, Representative, and Delegate 
 in Congress of any vacancy that wall exist at the Naval Academy because of 
 such graduation, or that may occur for other reasons and which he shall be 
 entitled to fill by nomination of a candidate and one or more alternates therefor. 
 The nomination of a candidate and alternate or alternates to fill said vacancy 
 shall be made upon the recommendation of the Senator, Representative, or 
 Delegate, if such recommendation is made by the fourth day of March of the 
 year foUowmg that in which said notice in writing is given, but if it is not 
 made by that time the Secretary of the Navy shall fill the vacancy by appoint- 
 ment of an actual resident of the State, Congressional district, or Territory, as 
 the case may be, in which the vacancy will exist, who shall have been for at 
 least two years immediately preceding the date of his appointment an actual 
 and bona fide resident of the State, Congressional district, or Territory in 
 which the vacancy wiU exist and of the legal Qualification under the law as 
 now provided. In cases where by reason of a vacancy in the membership of 
 the Senate or House of Representatives, or by the death or decHnation of a 
 
 1294 
 
Ft. 3. STATUTES AT LARGE. June 29, 1906. 
 
 candidate for admission to the academy there occurs or is about to occur at 
 the academy, a vacancy from any State, district, or Territory that can not be 
 fiJled by nomination as herein provided, the same may be filled as soon there- 
 after and before the final entrance examination for the year as the Secretary of 
 the Navy may determine. Tlie candidates allowed for the District of Columbia 
 and all the candidates appointed at large, together with alternates therefor, 
 shall be selected by the President within the period herein prescribed for nomi- 
 nation of other candidates: Provided, That the President may select a candi- 
 date for the District of Columbia for the year nineteen hundred and eight. — (34 
 Stat., 578, chap. 3590.) 
 
 See notes to sections 1514 and 1517, Revised Statutes. 
 
 [1906, June 29. Transfer of records to Navy Department.] That all records 
 (such as muster and pay rolls and reports) relating to the personnel and opera- 
 tions of public and private armed vessels of the North American colonies in 
 the war of the Revolution now in any of the Executive Departments shall be 
 transferred to the Secretary of the Navy, to be preserved, indexed, and pre- 
 pared for pubhcation. — (34 Stat., 579, chap. 3590.) 
 
 See acts of April 27, 1904 (33 Stat., 403), and March 2, 1913 (37 Stat., 723); see also note to 
 section 418, Revised Statutes. 
 
 [1906,. June 29. Deposit of savings, Marine Corps.] That hereafter enlisted 
 men of the Marine Corps shall be entitled to deposit their savings with the 
 United States, through any paymaster, in the some manner and under tlie 
 same conditions as is now or may hereafter be provided for the enlisted men 
 of the Navy: Provided, hou:ever, That the sums so deposited shall pass to the 
 credit of the appropriation for pay of the Marine Corps. — (34 Stat., 579, chap. 
 3590.) 
 
 See act of February 9, 1889 (25 Stat., 657-658), as to deposit of savings by enlisted men of 
 the Navy; see also notes to sections 1569, 1612, and 1621, Revised Statutes. 
 
 [1906, June 29. Notaries public, practice before Departments.] That sec- 
 tion five hundred and fifty-eight of the Code of Law for the District of Columbia, 
 relating to notaries public, be amended by adding at the end of said section 
 the following: Provided, That the appointment of any person as such notary 
 public, or the acceptance of his commission as such, or the performance of the 
 duties thereunder, shall not disqualify or prevent such person from representing 
 clients before any of the Departments of the United States Government in the 
 District of Columbia or elsewhere, provided such person so appointed as a 
 notary public who appears to practice or represent clients before any such 
 Department is not otherwise engaged in Government employ and shall be 
 admitted by the heads of such Departments to practice therein in accordance 
 with the rules and regulations prescribed for other persons or attorneys who 
 are admitted to practice therein: And provided further, That no notary public 
 shall be authorized to take acknowledgments, administer oaths, certify papers, 
 or perform any official acts in connection with matters in which he is employed 
 as counsel, attorney, or agent or in which he may be in any way interested 
 before any of the Departments aforesaid." — (34 Stat., 622, chap. 3616.) 
 
 See section 190, Revised Statutes, and note thereto. 
 
 1295 
 
June 30, 1906. Pt. S. STATUTES AT LARGE. 
 
 [1906, June 30. Deceased inmates, Saint Elizabeths Hospital; disposition 
 of moneys.] All moneys belonging to deceased inmates of the Government 
 Hospital for the Insane and deposited in the Treasury by the superintendent 
 as agent prior to February twentieth, nineteen hundred and five, shall, if 
 unclaimed by the legal heirs of such inmate within the period of five years 
 from the date of the passage of this Act, be covered into the Treasury, and all 
 moneys so deposited by the superintendent as agent after February twentieth, 
 nineteen lumdred and five, and b(>louging to inmates who have died since that 
 time, or may hereafter die, shall likewise be covered into the Treasury unless 
 claimed by his or her legal heirs within five years from the death of the inmate. 
 And the superintendent of the Government Hospital for the Insane is hereby 
 authorized and directed, under such regulations as may be prescribed by the 
 Secretary of the Interior, to make diligent inquiry in every instance after the 
 death of an inmate to ascertain the whereabouts of his or her legal heirs. Claims 
 may be presented hereunder at any time, and when estabhshed by competent 
 proof in any case more than five years after the death of an inmate shall be 
 certified to Congress for consideration. — (.34 Stat., 730-731, chap. 3914.) 
 
 Elizabeth's Hospital" by act of July 1, 
 1916 (39 Stat., 309). 
 
 See sections 4839. and 4843, Revised Statutes. 
 
 The designation of the "Governnient Hospital 
 
 for the Insane" was changed to "Saint 
 
 [1906, June 30, sec. 2. Estimates for printing and binding ; use of appro- 
 priations; envelopes excepted.] Hereafter there shaU be submitted in the 
 regular annual estimates to Congress under and as a part of the expenses for 
 ''Printing and binding," estimates for all printing and binding required by 
 each of the Executive Departments, their bureaus and offices, and other Gov- 
 ernment establishments at Washington, District of Columbia, for each fiscal 
 year; and after the fiscal year nineteen hmidred and seven no appropriations 
 other than those made specifically and solely for printing and binding shall be 
 used for such purposes in any Executive Department or other Government 
 establishment in the District of Columbia: Provided, That nothing in this 
 section shall apply to stamped envelopes, or envelopes and articles of stationery 
 other than letter heads and note heads, printed in the course of manufacture. — 
 (34 Stat., 762, chap. 3914.) 
 
 See act of January 12, 1895, sections 27 and 96 (28 Stat., 604, 624). 
 
 [1906, June 30, sec. 5. Reports to Secretary of the Treasury, proceeds of public 
 property, etc.] Hereafter the Secretary of the Treasury shall require, and 
 it shall be the duty of the head of each Executive Department or other Gov- 
 ernment establishment to furnish him, within thirty days after the close of each 
 fiscal year, a statement of all money arising from proceeds of public property 
 of any kind or from any source other than the postal service, received by said 
 head of Department or other Government establishment during the previous 
 fiscal year for or on account of the public service, or in any other manner 
 in the discharge of his official duties other than as salary or compensation, 
 which was not paid into the General Treasury of the United States, together 
 with a detailed account of all payments, if any, made from such funds dur- 
 ing such year. All such statements, together with a similar statement apply- 
 ing to the Treasury Department, shall be transmitted by the Secretary of the 
 
 1296 
 
Pt. 3. STATUTES AT LARGE. June 30, 1906. 
 
 Treasury to Congress at the beginning of each regular session. — (34 Stat., 763, 
 chap. 3914.) 
 
 See note to section 429, Revised Statutes, and see section 3692, Revised Statutes. 
 
 [1906, June 30, sec. 6. Computation of annual or monthly compensation.] 
 Hereafter, where the compensation of any person m the service of the United 
 States is annual or monthly the following rules for division of time and compu- 
 tation of pay for services rendered are hereby established: Annual compensa- 
 tion shall be divided into twelve equal installments, one of which shall be the 
 pay for each calendar month; and in making payments for a fractional part of a 
 month one-thirtieth of one of such installments, or of a monthly compensation, 
 shall be the daily rate of pay. For the purpose of computing such compen- 
 sation and for computing time for services rendered during a fractional part 
 of a month in connection with annual or monthly compensation, each and 
 every month shall be held to consist of thirty days, without regard to the actual 
 number of days in any calendar month, thus excluding the thirty-first of any 
 calendar month from the computation and treating February as if it actually had 
 thirty days. Any person entering the service of the United States during a 
 thu'ty-one day month and serving until the end thereof shall be entitled to 
 pay for that month from the date of entry to the thirtieth day of said month, 
 both days inclusive; and any person entering said service during the month 
 of February and serving until the end thereof shall be entitled to one month's 
 pay, less as many thirtieths thereof as there were days elapsed prior to date of 
 entry: Provided, That for one day's unauthorized absence on the thirty-first 
 day of any calendar month one day's pay shall be forfeited. — (34 Stat., 763, 
 chap. 3914.) 
 
 See section 167, Re%dsed Statutes, and note thereto. 
 
 [1906, June 30, sec. 9. Appropriations and contracts; authority must be specific] 
 No Act of Congress hereafter passed shall be construed to make an appropriation 
 out of the Treasury of the United States, or to authorize the execution of a 
 contract involving the payment of money in excess of appropriations made by 
 law, unless such Act shall in specific terms declare an appropriation to be made 
 or that a contract may be executed. — (34 Stat,, 764, chap. 3914.) 
 
 See section 3679, Revised Statutes. 
 
 [1906, June 30. Nautical schools, Philippines, loan of vessel ; detail of en- 
 listed men ; additional to authorized strength.] That the Secretary of the Navy 
 be, and he is hereby, authorized and empowered to loan temporarily to the govern- 
 ment of the Philippine Islands, upon the written application of the Secretary 
 of War, a vessel of the United States Navy, to be selected from such vessels as 
 are not suitable or requhed for general service, together with such of her apparel, 
 charts, books, and instruments of navigation as he may deem proper, said 
 vessel to be used only by such nautical schools as are or may hereafter be 
 maintained by said government of the Philippine Islands: Provided, That 
 when such schools shall be abandoned, or when the interests of the naval service 
 shall so require, such vessel, together with her apparel, charts, books, and instru- 
 ments of navigation, shall be immediately restored to the custody of the Secre- 
 tary of the Navy: And provided further, That when such loan is made to the 
 
 1297 
 
As to authorized enlisted strength of the Navy, 
 see note to section 1417, Revised Statutes. 
 
 other United States bonds in lieu of indem- 
 nity bonds. 
 
 Mar. 2, 1907. Pt. S. STATUTES AT LARGE. 
 
 govcrmnent of the Philippine Ishiiuls, the Secretary of the Navy is authorized 
 to detail from the enlisted force of the Navy a sullicient number of men, not 
 exceeding six for any vessel, as ship keepers, the men so detailed to be addi- 
 tional to the number of enlisted men allowed by law for the naval establishment, 
 and in making details for this service preference shall be given to those men 
 who have served twenty years or more m the Navy. — (34 Stat., 817, chap. 
 3937.) 
 
 See act of March 3, 1901 (31 Stat., 1440), as 
 amended and reenacted; see also act of 
 March 4, 1911 (36 Stat., 1353). 
 
 [1906, Dec. 11. Certified checks in lieu of bonds, contracts for naval sup- 
 plies.] That the Secretary of the Navy may, in his discretion, accept, in lieu of 
 the A\Titten guaranty required to accompany a proposal for naval supplies, and 
 in lieu of the bond required for the faithful performance of a contract for fur- 
 nishing such supplies, a certified check, payable to the order of the Secretary 
 of the Navy, for from twenty-five to fifty per centum of the amount of such 
 proposal or contract, the check to be held by the Secretary of the Navy until 
 the requirements of the proposal or contract shall be complied with and as a 
 guaranty for compliance with the same. — (34 Stat., 841, chap. 1.) 
 
 See section 3719, Revised Statutes; see also 
 act of February 24, 1919, section 1320 (40 
 Stat., 1148), as to acceptance of Liberty or 
 
 [1907, Feb. 26, sec. 6. Traveling expenses, naval officers, Light-House Estab- 
 lishment.] That hereafter officers of the Army and Navy detailed for service in 
 connection with the Light-House Establislmaent shall be paid their actual 
 traveling expenses w^hen traveling under orders on official duty to and from 
 points which can not be conveniently reached by vessel or railroad. — (34 Stat., 
 997, chap. 1638.) 
 
 See sections 1566 and 4679, Revised Statutes, and notes thereto. 
 
 [1907, Mar. 2. Army transports, accommodations available for naval person- 
 nel and supplies.] When, in the opinion of the Secretary of War, accommoda- 
 tions are available, transportation may be provided for the officers, enlisted men, 
 employees, and supplies of the Navy, the Alarine Corps, and for members and 
 employees of the Philippine and Hawaiian governments, officers of the War 
 Department, IVIembers of Congress, other officers of the Government while 
 traveling on official business, and ^dthout expense to the United States, for 
 the families of those persons herein authorized to be transported, and when 
 accommodations are available, transportation may be provided for general 
 passengers to the island of Guam, rates and regulations therefor to be pre- 
 scribed by the. Secretary of War.— (34 Stat., 1170-1171, chap. 2511.) 
 
 See sections 1135 and 3718, Revised Statutes, and notes thereto. 
 
 [1907, Mar. 2. Refund of enlistment bounty.] That the Secretary of the 
 Navy may, in his discretion, require the whole or a part of the boimty allowed 
 upon enlistment to be refunded in cases where men are discharged during the 
 first year of enlistment by request, for inaptitude, as tmdesirable, or for dis- 
 ability not incurred in line of duty. — (34 Stat., 1176, chap. 2512.) 
 
 See identical provision contained in act of 
 June 29, 1906 (34 Stat., 553), and note 
 thereto; see also provision for refund in 
 
 cases of men discharged within six months 
 of enlistment, contained in act of June 29, 
 1906 (34 Stat., 556). 
 
 1298 
 
Pt. 3. STATUTES AT LARGE. Mar. 2, 1907. 
 
 [1907, Mar. 2. Open-ttiarket purchases.] That hereafter the purchase of 
 
 supphes and the procurement of services for all branches of the naval service 
 
 may be made in open market in the manner common among business men, 
 
 without formal contract or bond, when the aggregate of the amount required 
 
 does not exceed five hundred dollars, and when, in the opinion of the proper 
 
 administrative officers, such limitation of amount is not designed to evade 
 
 purchase under formal contract or bond, and equally or more advantageous 
 
 terms can thereby be secured. — (34 vStat., 1193, chap. 2512.) 
 
 See sections 3709, 3718, and 3721, Revised Statutes, and notes thereto; and see act of June 17, 
 1910, section 4 (36 Stat., 531). 
 
 [1907, Mar. 2. Report to Congress, proposed repairs on vessels.] That the 
 Secretary of the Navy shall hereafter report to Congress, at the commence- 
 ment of each regular session, the number of vessels and their names upon 
 which any repairs or changes are proposed which in any case shall amount to 
 more than two hundred thousand dollars, the extent of such proposed repairs 
 or changes, and the amounts estimated to be needed for the same in each vessel; 
 and expenditures for such repairs or changes so limited shall be made only 
 after appropriations in detail are provided for by Congress. — (34 Stat., 1195, 
 chap. 2512.) 
 
 See note to section 1538, Revised Statutes, and 
 see act of March 3, 1909 (35 Stat., 769). 
 See also section 429, Revised Statutes, and 
 note thereto. 
 
 By act of August 29, 1916 (39 Stat., 605), the 
 statutory limit of $200,000 for repairs and 
 changes to capital ships, as provided in 
 this act, was changed to $300,000. 
 
 [1907, Mar. 2. Marines detailed as cooks.] Pay, Marine Corps. * * * 
 Provided, That hereafter privates regularly detailed and serving as cooks, 
 shall receive, in addition to the pay otherwise allowed by law, the following: 
 First-class cooks, ten dollars per month; second-class cooks, eight dollars; 
 third-class cooks, seven dollars; and fourth-class cooks, five dollars. — (34 Stat., 
 1200, chap. 2512.) 
 
 See note to section 1612, Revised Statutes. 
 
 [1907, Mar. 2. Retirement of enlisted men. Navy and Marine Corps.] That 
 when an enlisted man shall have served thirty years either in the Army, Navy, 
 or Marine Corps, or in all, he shall, upon making application to the President, 
 be placed upon the retired list, with seventy-five per centum of the pay and 
 allowances he may then be in receipt of, and that said allowances shall be as 
 follows: Nine dollars and fifty cents per month in lieu of rations and clothing 
 and six dollars and twenty-five cents per month in lieu of quarters, fuel, and 
 light: Provided, That in computing the necessary thirty years' time all service 
 in the Army, Navy, and Marine Corps shall be credited. 
 
 Sec. 2. That all Acts and parts of Acts, so far as they conflict with the pro- 
 visions of this Act, are hereby repealed. — (34 Stat., 1217-1218, chap. 2515.) 
 See act of March 3, 1899, section 17 (30 Stat., as to enlisted men of the Marine Corps, 
 
 1008), and laws noted thereunder; and see 
 
 act of August 30, 1890 (26 Stat., 504). 
 
 [1907, Mar. 2. Wearing of badges, military societies.] That the distinctive 
 badge adopted by the Army and Navy Union of the United States may be 
 worn, in their own right, upon all public occasions of ceremony by officers and 
 enlisted men of the Army and Navy of the United States who are members of 
 said organization. — (34 Stat., 1423, Res. No. 18.) 
 
 See note to section 1407, Revised Statutes. 
 
 1299 
 
Apr. 28, 1908. Pt. S. STATUTES AT LARGE. 
 
 [1908, Jan. 16. Printing and binding; numbering of documents; title; 
 printing of departmental edition.] That publications ordered printed by 
 Congress, or either House thereof, shall be in four series, namely: One series 
 of reports made by the committees of the Senate, to be known as Senate 
 reports; one series of reports made by the committees of the House of Repre- 
 sentatives, to be known as House reports; one series of documents other than 
 reports of committees, the orders for printing which originate in the Senate, 
 to be known as Senate documents, and one series of documents other than 
 committee reports, the orders for printing which originate in the House of 
 Representatives, to be kno^vn as House documents. The publications in each 
 series shall be consecutively numbered, the numbers in each series continuing 
 in unbroken sequence throughout the entire term of a Congress, but the fore- 
 going provisions shall not apply to the documents printed for the use of the 
 Senate in executive session: Provided, That of the "usual number," the copies 
 which are intended for distribution to State and Territorial libraries and other 
 designated depositories of all annual or serial publications originating in or pre- 
 pared by an Executive Department, bureau, office, commission, or board shall 
 not be numbered in the document or report series of either House of Congress, 
 but shall be designated by title and bound as hereinafter provided, and the 
 departmental edition, if any, shall be printed concurrently "wath the ''usual 
 number:" And provided further, That hearings of committees may be printed 
 as Congressional documents only when specifically ordered by Congress or either 
 House thereof. 
 
 Sec. 2. That in the binding of Congressional documents and reports for 
 distribution by the superintendent of documents to State and Territorial 
 libraries and other designated depositories, every publication of sufficient size 
 on any one subject shall hereafter be bound separately and receive the title 
 suggested by the subject of the volume, and the others shall be distributed in 
 unbound form as soon as printed. The Public Printer shall supply the super- 
 intendent of documents sufficient copies of those publications distributed in 
 unbound form, to be bound and distributed to the State and Territorial libraries 
 and other designated depositories for their permanent files. The library edition, 
 as well as all other bound sets of Congressional numbered documents and reports, 
 shall be arranged in volumes and bound in the manner directed by the Joint 
 Committee on Printing.— (35 Stat., 565-566, Res. No. 3.) 
 
 See act of January 12, 1895 (28 Stat., 601-624). 
 
 [1908, Apr. 28. Regattas or marine parades ; regulations ; enforcement.] That 
 the Secretary of Commerce and Labor is hereby authorized and empowered 
 in his discretion to issue from time to time regulations, not contrary to law, to 
 promote the safety of life on navigable waters during regattas or marine parades. 
 
 Sec. 2. That to enforce such regulations the Secretary of Commerce and 
 Labor may detail any public vessel in the service of that Department and make 
 use of any private vessel tendered gratuitously for the purpose, or upon the 
 request of the Secretary of Commerce and Labor the head of any other Depart- 
 ment may enforce the regulations issued under this Act by means of any public 
 vessel of such Department and of any private vessel tendered gratuitously for 
 the purpose. 
 
 1300 
 
Pt. 3. STATUTES AT LARGE. May 13, 1908. 
 
 Sec. 3. That the authority and power bestowed upon the Secretary of 
 Commerce and Labor by sections one and two may be transferred for any 
 special occasion to the head of another Department by the President whenever 
 in his judgment such transfer is desirable. 
 
 Sec. 4. That for any violation of regulations issued pursuant to this Act 
 the following penalties shall be incurred: 
 
 (a) A licensed officer shall be liable to suspension or revocation of license 
 in the manner now prescribed by law for incompetency or misconduct. 
 
 (b) Any person in charge of the navigation of a vessel other than a licensed 
 officer shaU be liable to a penalty of five hundred dollars. 
 
 (c) The owner of a vessel (including any corporate officer of a corporation 
 owning the vessel) actually on board shall be liable to a penalty of five hundred 
 dollars, unless the violation of regulations shall have occurred without his 
 knowledge. 
 
 (d) Any other person shall be liable to a penalty of two hundred and fifty 
 dollars. 
 
 The Secretary of Commerce and Labor is hereby authorized and empow- 
 ered to mitigate or remit any penalty herein provided for in the manner pre- 
 scribed by law for the mitigation or remission of penalties for violation of the 
 navigation laws. ^ — (35 Stat., 69, chap. 151.) 
 
 See section 4233, Revised Statutes, and laws 
 noted thereunder. 
 
 The designation of the ' ' Secretary of Commerce 
 and Labor" was changed to "Secretary of 
 Labor" by act of March 4, 1913 (37 Stat., 
 
 73G). 
 
 [1908, May 13. Commissioned officers, pay and allowances.] Hereafter 
 all commissioned officers of the active list of the Navy shall receive the same 
 pay and allowances according to rank and length of service. — (35 Stat., 127, 
 chap. 166.) 
 
 This provision was repeated in identical lan- 
 guage in the act of August 29, 1916 (39 
 Stat., 581). In the act of May 13, 19()8_, it 
 was restricted by a subsequent provision 
 (35 Stat., 128), that "the pay and allow- 
 ances of chaplains in the Navy shall in no 
 case exceed that provided for lieutenant- 
 commanders." This limitation was omit- 
 ted in the act of August 29, 1916, the effect 
 of which was to give chaplains the same 
 pay and allowances as other officers of the 
 Navy of corresponding rank and length of 
 
 service. (See note to section 1556, Revised 
 
 Statutes.) 
 As to allowances of officers of the Navy, see 
 
 section 1558, Revised Statutes, and note 
 
 thereto. 
 For laws and decisions relating to pay of officers 
 
 of the Navy, see section 1556, Revised 
 
 Statutes, and note thereto. 
 For laws and decisions relating to pay and 
 
 allowances of officers of the Marine Corps, 
 
 see section 1612, Revised Statutes, and 
 
 note thereto. 
 
 [1908, May 13. Annual pay of grades, commissioned officers.] The annual 
 pay of each grade shall be as follows: For Achniral, thirteen thousand five 
 hundred dollars; rear-admiral, first nine, eight thousand dollars; rear-admiral, 
 second nine, or commodore, six thousand dollars; captain, four thousand dol- 
 lars; commander, three thousand five hundred dollars; lieutenant-commander, 
 three thousand dollars; lieutenant, two thousand four hundred dollars; lieu- 
 tenant, junior grade, two thousand dollars; ensign, one thousand seven hundred 
 dollars.— (35 Stat., 127-128, chap. 166.) 
 
 See note to section 1556, Revised Statutes. 
 
 [1908, May 13. Longevity pay, commissioned officers, maximum pay of 
 grades.] There shall be allowed and paid to each commissioned officer below 
 
 1301 
 
May 13, 1908. 
 
 Pi. 3. STATUTES AT LARGE. 
 
 the rank of rear-admiral ten per centum of his current yearly pay for each term 
 of live years service in tlie Army, Navy and Marine Corps. The total amount 
 of such increase for length of service shall in no case exceed forty per centum 
 on the yearly pay of the grade as provided by law: Provided, That the annual 
 pay of captain shall not exceed five thousand dollars per annum ; of commander, 
 four thousand five hundred dollars per annum; and of lieutenant-commander, 
 four thousand dollars per annum. — (35 Stat., 128, chap. 166.) 
 
 See note to section 1556, Re\-ised Statutes. 
 
 [1908, May 13. Additional pay for sea duty and shore duty beyond seas.] 
 All oilicers on sea duty anil all officers on shore duty beyond the continental 
 limits of the United States shall while so serving receive ten per centum addi- 
 tional of their salaries and increase as above provided, and such increase shall 
 commence from the date of reporting for duty on board ship or the date of 
 sailing from the United States for shore duty beyond the seas or to join a ship 
 in foreign waters. — (35 Stat., 128, chap. 166.) 
 
 See notes to sections 1556 and 1571, Revised Statutes; and see section 1588, Revised Statutes, 
 and note thereto, as to pay of retired officers. 
 
 [1908, May 13. Pay of midshipmen.] The pay of midshipmen shall here- 
 after be six hundred dollars per annum while at the Naval Academy, and one 
 thousand four hundred dollars per annum after graduation from the Naval 
 Academy.— (35 Stat., 128, chap. 166.) 
 
 See note to section 1556, Revised Statutes; and see note to section 1520, Revised Statutes, 
 as to academic course of midshii^men. 
 
 [1908, May 13. Pay of warrant officers and mates.] The pay of all warrant 
 officers and mates is hereby increased twenty-five per centum, and all pay- 
 masters' clerks shall, while on duty, receive the same pay and allowances as 
 warrant officers of like length of service in the Navy. — (35 Stat., 128, chap. 
 166.) 
 
 See note to section 1556, Revised Statues. 
 The grade of paymasters' clerks was abol- 
 ished and the grades of acting pay clerk. 
 
 pay clerk, and chief pay clerk created, by 
 act of March 3, 1915 (38 Stat., 942), noted 
 under section 1386, Revised Statutes. 
 
 [1908, May 13. Pay of enlisted men.] The pay of all active and retired 
 enlisted men of the Navy is hereby increased ten per centum. — (35 Stat., 128, 
 chap. 166.) 
 
 See note to section 1569, Revised Statutes. 
 
 [1908, May 13. Chiefs of bureaus.] That the pay and allowances of chiefs 
 of bureaus in the Navy Department shall be the highest pay of the grade to 
 which they belong, and not below that of rear-admiral of the lower nine. — (35 
 Stat., 128^^ chap. 166.) 
 
 By act of July 1, 1918 (40 Stat., 717), chiefs of 
 bureaus in the Navy Department are to 
 receive the same pay and allowances as 
 chiefs of bureaus in the War Department. 
 
 [1908, May 13. Pay of chaplains.] That the pay and allowances of chap- 
 lains in the Navy shall in no case exceed that provided for lieutenant-com- 
 manders.— (35 Stat., 128, chap. 166.) 
 
 See notes to sections 421 and 1565, Revised 
 Statutes. 
 
 1302 
 
Pt. 3. STATUTES AT LARGE. 
 
 May 13, 1908. 
 
 This provision was superseded by the act of 
 August 29, 1916 (39 Stat., 581), which re- 
 enacted the first clause of this act as above 
 
 set forth, without any limitation upon the 
 pay and allowances of chaplains. 
 See note to section 1556, Revised Statutes. 
 
 [1908, May 13. Additional pay allowed aids.] Aids to rear-admirals 
 embraced in the nine lower numbers of that grade shall each receive one hundred 
 and fifty dollars additional per annum, and aids to all other rear-admirals, 
 two hundred dollars additional per annum each. — (35 Stat., 128, chap. 16G.) 
 
 See note to section 1556, Re\"ised Statutes, "Additional pay for special duty." 
 
 [1908, May 13. Retirement of officers, 30 years' service.] Wlien an officer 
 of the Nav}" has been thirty years in the service, he may, upon his own applica- 
 tion, in the discretion of the President, be retired from active service and placed 
 upon the retired list with three-fourths of the highest pay of his grade. — (35 
 Stat., 128, chap. 166.) 
 
 By act of May 30, 1908 (35 Stat., 501), it was 
 provided that "in computing the pay of 
 retired officers of the Navy, the ten per 
 cent additional pay allowed for sea duty 
 or for shore duty beyond the continental 
 limits of the United States shall not be 
 included, and the pay of commodore shall 
 be the same in all respects as that of rear- 
 admiral, second nine." 
 
 [1908, May 13. Chief of bureau, subsequently retired.] That any officer of 
 the Navy who is now serving or shall hereafter serve as chief of a bureau in the 
 Navy Department, and shall subsequently be retired, shall be retired with the 
 rank, pay and allowances authorized by law for the retirement of such bureau 
 chief.— (35 Stat., 128, chap. 166.) 
 
 See note to section 421, Revised Statutes, 
 under "VI. Retirement of Chiefs of Bu- 
 reaus," subheading, "Rank on retirement 
 
 [1908, May 13. Pay of officers and men on retired list.] The pay of all com- 
 missioned, warrant and appointed officers and enlisted men of the Navy now 
 on the retired list shall be based on the pay, as herein provided for, of commis- 
 sioned, warrant and api^ointed officers and enlisted men of corresponding rank 
 and service on the active list. — -(35 Stat., 128, chap. 166.) 
 
 See generally, sections 1443-1465, Revised 
 Statutes, as to retirement of officers, and 
 sections 1588-1595, Revised Statutes, as 
 to pay and allowances of retired officers. 
 As to retired officers, Marine Corps, see 
 section 1622, Re\ised Statutes, and note 
 thereto. 
 
 of former bureau chief who has returned 
 to general 8er\ice. ' ' 
 
 See sections 1588-1595, Revised Statutes, and 
 notes thereto, as to pay of retired officers. 
 
 See section 1569, Revised Statutes, as to pay 
 of enlisted men. 
 
 See act of May 30, 1908 (35 Stat., 501), modi- 
 fying this provision, quoted above under 
 "Retirement of officers, 30 years' service." 
 
 [1908, May 13. Pay to continue until changed by Congress.] All pay herein 
 provided shall remain in force until changed by Act of Congress. — (35 Stat., 
 128, chap. 166.) 
 
 See note to section 1569, Re\'ised Statutes, as to effect of this provision. 
 
 [1908, May 13. Present pay not reduced.] Nothing herein shall be con- 
 strued so as to reduce the pay or allowances now authorized by law for any 
 commissioned, warrant or appointed officer or any enhsted man of the active 
 or retired lists of the Navy, and all laws inconsistent with this provision are here- 
 by repealed.— (35 Stat., 128, chap. 166.) 
 
 [1908, May 13. Nurse corps, female.] The nurse corps (female) of the 
 United States Navy is hereby established, and shall consist of one superintend- 
 
 1303 
 
May 13, 1908. 
 
 P t. 3. STATUTES AT LARGE. 
 
 out, to be nppointed by the Secretiiiy of the Navy, who shall be a graduate of a 
 hospital training school having a course of instruction of not less than two 
 years, whose term of office may be terminated at his discretion, and of as many 
 chief nurses, nurses, and reserve nurses as may be needed: Provided, That all 
 nurses in the nurse corps shall be appointed or removed by the Surgeon-General, 
 with the approval of the Secretary of the Navy, and that they shall be graduates 
 of hospital training schools having a course of instruction not less than two 
 years. The appointment of superintendent, chief nurses, nurses, and reserve 
 nurses shall be subject to an examination as to their professional, moral, mental, 
 and physical fitness, and that they shall be eligible for duty at naval hospitals 
 and on board of hospital and ambulance ships and for such special duty as may 
 be deemed necessary by the Surgeon-General of the Nav}'^. Reserve nurses 
 may be assigned to active duty when the necessities of the service demand, and 
 when on such duty shall receive the pay and allowances of nurses: Provided^ 
 That they shall receive no compensation except when on active duty. The 
 superintendent, chief nurses, and nurses shall respectively receive the same pay, 
 allowances, emoluments, and privileges as are now or may hereafter be pro- 
 vided by or in pursuance of law for the nurse corps (female) of the Army. — 
 (35 Stat., 146, chap. 166.) 
 
 See act of August 29, 1916 (39 Stat., 587-592), 
 creating a "Naval Reserve Force." 
 
 See note to section 1556, Re\'ised Statutes, as 
 to pay and allowances of nurses. 
 
 [1908, May 13. Property returns, storekeeper at Naval Academy.] That 
 hereafter the storekeeper at the Naval Academy, authorized by section fifteen 
 hundred and twenty-seven of the Revised Statutes, shall render quarterly 
 returns of property to the Chief of the Bureau of Supplies and Accounts, under 
 such regulations as the Secretary of the Navy may prescribe. A full report 
 shall be made annually of receipts and expenditures by the Chief of the Bureau 
 of Supplies and Accounts to the Secretary of the Navy: And provided further, 
 That an inspection of the storekeeper's accounts shall be made quarterly by the 
 general inspector of the Pay Corps, with such recommendation as he may deem 
 necessary, to the Chief of the Bureau of Supplies and Accounts. — (35 Stat., 153, 
 chap. 166.) 
 
 See note to section 1527, Re\ised Statutes. 
 
 The designation of the "Pay Corps" was 
 changed to "Supply Corps" by act of 
 July 11, 1919 (41 Stat., 147). • 
 
 [1908, May 13. Navy bands not to compete with civilians.] Navy bands 
 or members thereof, other tlian the United States Naval Academy band at 
 Annapolis, Maryland, shall not receive remuneration for furnishing music 
 outside the limits of military posts, when the furnishing of such music places 
 them in competition with local civilian musicians. — (35 Stat., 153, chap. 166.) 
 
 See act of Junes, 1916, section .35 (39 Stat., 188), 
 as to restrictions upon enlisted men, gen- 
 erally, competing with civilians; and act 
 August 29, 1916 (39 Stat., 612), as to 
 restrictions upon Marine Band. 
 
 See note to section 1511, Revised Statutes, as to 
 Naval Academy band. 
 
 See section 1613, Revised Statutes, and note 
 thereto, as to Marine Band. 
 "Navy bands" not inclusive of Marine 
 Band. — This enactment was held not appli- 
 cable to the Marine Band, in an opinion of the 
 Attorney General dated November 9, 1908. 
 (27 Op. Atty. Gen., 90. See sec. 1613, R. S.) 
 
 [1908, May 13. Monitors, naming of.] So much of the act entitled "An 
 act making appropriations for the naval service for the fiscal year endmg June 
 
 1304 
 
PL 3. STATUTES AT LARGE. May 27, 1908. 
 
 thirtieth, eighteen hundred and ninetj^-nine, and for other purposes," approved 
 May fourth, eighteen hundred and ninety-eight, as provides that monitors 
 owned by the United States shall be named for the States, and shall not be 
 named for any city, place, or person until the names of the States shall have 
 been exhausted, is hereby repealed, and monitors now owned by the United 
 States or hereafter built may be named as the President may direct. — (35 Stat., 
 159, chap. 166.) 
 
 See act of May 4, 1898 (30 Stat., 390), and see note to section 1531, Re\T.sed Statutes. 
 
 [1908, May 20. Gifts to vessels; acceptance and care of; appropriation 
 chargeable.] That the Secretary of the Navy is hereby authorized to accept 
 and care for such gifts in the form of silver, colors, books, or other articles of 
 equipment or furniture as, in accordance with custom, may be presented to 
 vessels of the Navy by States, municipalities, or othei-wise. The necessary 
 expense incident to the care and preservation of gifts of this character which 
 have been or may hereafter be accepted shall be defrayed from the appropriation 
 "equipment of vessels." — (35 Stat., 171, chap. 182.) 
 
 See section 418, Re\ised Statutes, and note thereto. 
 
 [1908, May 22, sec. 4. Annual report, traveling expenses of employees.] 
 It shall be the duty of the head of each Executive Department and other 
 Government establishment at Washington to submit to Congress at the begin- 
 ning of each regular session a statement showing in detail what officers or 
 employees (other than special agents, inspectors, or employees, who in the 
 discharge of their regular duties are required to constantly travel) of such 
 Executive Department or other Government establishment have traveled on 
 official business from Washington to points outside of the District of Colunbia 
 during the preceding fiscal year, giving in each case the full title of the official 
 or employee, the destination or destinations of such travel, the business or 
 work on account of which the same was made, and the total expense to the 
 United States charged in each case.^(35 Stat., 244, chap. 186.) 
 
 See section 429, Re\ised Statutes, and note thereto. 
 
 [1908, May 27. Deceased persons, naval service; settlement of accounts; 
 payment of funeral expenses to claimants.] Hereafter, in the settlement of the 
 accoimts of deceased officers or enlisted men of the Navy and IMarine Corps, 
 whei*e the amount due the decedent's estate is less than five hundred dollars 
 and no demand is presented by a duly appointed legal representative of the 
 estate, the accounting officers may allow the amount found due to the decedent's 
 widow or legal heirs in the following order of precedence: First, to the widow; 
 second, if the decedent left no widow, or widow be dead at time of settlement, 
 then to the children or their issue, per stirpes; third, if no widow or descendants, 
 then to the father and mother in ecjual parts, provided father has not abandoned 
 the support of his family, in which case to the mother alone; fourth, if either 
 the father or mother be dead, then to the one surviving; fifth, if there be no 
 widow, child, father, or mother at the date of settlement, then to the brothers 
 and sisters and children of deceased brothers and sisters, per stirpes: Provided, 
 That this Act shall not be so construed as to prevent payment from the amount 
 
 1305 
 
May 27, 1908. 
 
 Pt. 3. STATUTES AT LARGE. 
 
 See section 1587, Revised Statutes, as to 
 funeral expenses. 
 
 due the decedent's estate of funeral expenses, provided a claim therefor is pre- 
 sented by the person or persons who actually paid the same before settlement 
 by the accounting ofTicers. — (35 Stat., 373, chap. 200.) 
 
 See laws noted under section 289, Re^d8ed 
 Statutes. 
 
 See act of I\Iarch 29, 1918 (40 Stat., 499), as to 
 disposition of money and effects of de- 
 ceased jicrsons in naval service. 
 
 [1908, May 27. Navy mail clerks and assistants.] That enlisted men of the 
 United States Navy may, upon selection by the Secretary of the Navy, be 
 designated by the Post-Office Department as "navy mail clerks" and "assistant 
 navy mail clerks," who shall be authorized to receive and open all pouches and 
 sacks of mail addressed to naval vessels, to make proper delivery of such mail, to 
 receive matter for transmission in the mails, to receipt for registered matter 
 (keeping an accurate record thereof), to keep and have for sale an adequate 
 supply of postage stamps, to make up and dispatch mails, and other postal 
 duties as may be authorized by the Postmaster-General, all in accordance with 
 such rules and regulations as may be prescribed by the commanding officer of 
 the vessel or of the squadron to which the vessel is attached. Each mail clerk 
 and assistant mail clerk shall take the oath of office prescribed for employees 
 of the postal service and shall give bond to the United States in the sum of one 
 thousand dollars for the faithful performance of his duties as such clerk, and 
 shall be amenable in all respects to naval discipline, except that, as to their 
 duties as such clerks, the commanding officers of the vessels upon which they are 
 stationed shall require them to be governed by the postal laws and regulations 
 of the United States. Whenever necessity arises therefor any assistant mail 
 clerk may be required by the commanding officer of the vessel upon which he is 
 stationed or of the squadron to which said vessel is attached to perform the 
 duties of mail clerk. They shall receive as compensation for such services from 
 the Navy Department, in addition to that paid them of the grade to which they 
 are assigned, such sum in the case of mail clerks not to exceed five hundred 
 dollars per annum, and in that of assistant mail clerks not to exceed three 
 hundred dollars per annum, as may be determined and allowed by the Navy 
 Department.— (35 Stat., 417-418, chap. 206.) 
 
 Amendments to this pro\'ision were made by- 
 various subsequent enactments, as follows: 
 
 "That every Navy mail clerk and assist- 
 ant Navy mail clerk shall give bond to the 
 United States in such penal sum as the 
 Postmaster General may deem sufficient 
 for the faithful performance of his duties 
 as such clerk." (Act Aug. 24, 1912, sec. 3, 
 37 Stat., 554, chap. 389.) 
 
 "That the provision in the Act making 
 appropriations for the eer\ace of the Post 
 Office Department, approved May twenty- 
 seventh, nineteen hundi-ed and eight, 
 authorizing the designation of enlisted men 
 of the Navy ai navy mail clerks and 
 assistant navy mail clerks, be amended to 
 include in such designation enlisted men of 
 the Marine Corps, by the insertion in the 
 said provision, after the words 'United 
 States Navy, ' the words ' or Marine Corps. ' ' ' 
 (Act of Aug. 24, 1912, sec. 11, 37 Stat., 560, 
 chap. 389.) 
 
 "That the provisions of the Act of May 
 twenty-seventh, nineteen hundred and 
 eight (Thirty -fifth Statutes, pages four 
 huntlred and seventeen and four hundred 
 and eighteen), as amended by the Act of 
 August twenty-fourth, nineteen hundred 
 and twelve (Thirty-seventh Statutes, page 
 five hundred and sixty), are hereby ex- 
 tended to authorize the designation of en- 
 listed men of the Navy or Marine Corps as 
 Navy mail clerks and assistant Navy mail 
 clerks with expeditionary forces on shore." 
 (Act Mar. 4, 1917, 39 Stat., 1188, chap. 180.) 
 
 "That the provisions of the Act of May 
 twenty-seventh, nineteen hundred and 
 eight (Tliirty-fifth Statutes, pages four 
 hundred and seventeen and four hundred 
 and eighteen), as amended by the Act of 
 August twenty-fourth, nineteen hundred 
 and twelve (Thirty-seventh Statutes, page 
 five hunderd and sixty), and as amended 
 by the Act of March foiu'th, nineteen hun- 
 
 1306 
 
PL 3. STATUTES AT LARGE. 
 
 May 30, 1908. 
 
 dred and seventeea (Thirty -ninth Statutes, 
 page eleven hundred and eighty-eight), are 
 hereby extended to authorize the designa- 
 tion of enlisted men of the Navy or Marine 
 Corps as Navy mail clerks and assistant 
 Navy mail clerks for duty at stations and 
 shore establishments under the jurisdiction 
 of the Navy Department where the services 
 of such mail clerks and assistant mail clerks 
 are necessarv." (Act July 1, 1918, 40 
 Stat., 718, chap. 114.) 
 See note to sections 391-392, Revised Statutes, 
 as to oaths of mail clerks and assistants; see 
 
 note to section 1383, Revised Statutes, on 
 general subject of bonds; see note to section 
 1569, Revised Statutes, under "8. Addi- 
 tional pay for special duty, etc.;" and see 
 note to section 236, Revised Statutes, 
 under V, (A), "Secretary of the Navy," 
 subheading, "The designation of Navy 
 mail clerks." See also section 388, Re- 
 Adsed Statutes, and note thereto. 
 By section 403, Revised Statutes, it is provided 
 that "all bonds taken * * * by the 
 Post-Office Department shall be made to 
 * * * the United States of America." 
 
 [1908, May 28, sec. 2. Alaska coal; preference right to purchase for Army and 
 Navy.] The the United States shall, at all times, have the preference right to 
 purchase so much of the product of any mine or mines opened upon the lands 
 sold under the provisions of this Act as may be necessary for the use of the 
 Army and Navy, and at such reasonable and remunerative price as may be 
 fixed by the President; but the producers of any coal so purchsed who may be 
 dissatisfied with the price thus fixed shall have the right to prosecute suits 
 against the United States in the Court of Claims for the recovery of any addi- 
 tional sum or sums they may claiin as justly due upon such purchase. — (35 
 Stat., 424, chap. 211.) 
 
 See section 3711, Revised Statutes, and act of 
 October 20, 1914 (38 Stat., 741). 
 
 This section was part of an act "to encourage 
 the development of coal deposits in the 
 Territory of Alaska." 
 
 [1908, May 30. Pay of retired officers, Navy.] In computing the pay of 
 
 retired officers of the Navy, the ten per cent additional pay allowed for sea duty 
 
 •or for shore duty beyond the continental limits of the United States shall not 
 
 be included, and the pay of commodore shall be the same in all respects as that 
 
 of rear-admiral, second nine. — (35 Stat., 501, chap. 227.) 
 
 See act of May 13, 1908 (35 Stat., 128), and section 1588, Re\dsed Statutes. 
 
 [1908, May 30. Estimates of employees to be paid from lump sum appro- 
 priations; specific authorization required.] The Secretary of the Navy is 
 authorized to employ and pay, during the fiscal year nineteen hundred and nine, 
 out of the lump appropriations of the several bureaus of the Navy Department, 
 such classified civil-service employees as may be necessary to properly perform 
 the clerical, drafting, inspection, messenger, and other classified work at the 
 several navy-yards and stations: Provided, That the Secretary of the Navy 
 shall submit to Congress detailed estimates for all such classified civil-service 
 employees that may be required to be employed during the fiscal year nineteen 
 hundred and ten, and annually thereafter, and no such classified civil-service 
 employees shall be employed during the fiscal year nineteen hundred and ten, 
 or in any subsequent fiscal year, and paid from such lump appropriations except 
 under specific authorization granted by law from year to 3^ear based upon 
 estimates as herein required.— (35 Stat., 505, chap. 227.) 
 
 See notes to sections 416 and 1545, Revised 
 Statutes; see also acts of August 5, 1882, 
 section 4 (22 Stat., 255-256), and March 3, 
 1909 (35 Stat., 754-755). 
 
 The amount to be expended from lump appro- 
 priations for personal services at navy 
 yards and stations is limited by provisos 
 m the annual naval appropriation acts 
 under appropriations for the various bu- 
 
 reaus of the Navy Department. (See act of 
 June4, 1920, 41 Stat., 816-820, 823, 826, 827.) 
 Authority for employment of personal services 
 in various bureaus of the Navy Depart- 
 ment from lump appropriations for the 
 naval service is contained in the annual 
 legislative, executive, and judicial appro- 
 priation acts. (See act Mar. 3, 1921, 41 
 Stat., 1285, 1286, 1287.) 
 
 54641°— 22- 
 
 -83 
 
 1307 
 
Feb. 16, 1909. 
 
 Pi. 3. STATUTES AT LARGE. 
 
 Naval Courts. 
 
 [1909, Feb. 16. Deck courts, jurisdiction, by whom ordered.] That courts 
 for the trial of eiihsted men in tlie Navy and Marine Corps for minor offenses 
 now triahlc hy summary court-martial ma}" be ordered by the commanding 
 officer of a naval vessel, by the commandant of a navy-yard or station, by a 
 commanding officer of marines, or by higher naval authority. — (35 Stat., 621, 
 chap. 131.) 
 
 Ab to designation of the courts herein provided 
 for, as "deck courts," see section 2 of this 
 act, set forth below. 
 
 Amendment to this section was made by act 
 of August 29, 1916 (39 Stat., 586), which 
 
 8ro^^ded that "hereafter all officers of the 
 avy and Marine Corps "who are author- 
 ized to order either general or summary 
 courts-martial may order deck courts upon 
 enlisted men under their command," and 
 that, when empowered by the Secretary 
 of the Navy to order emnmary courts- 
 martial, "the commanding officer of a 
 naval hospital or hospital ship shall be 
 empowered to order such courts and deck 
 courts * * * upon all enlisted men of 
 the naval service attached thereto, whether 
 for duty or as patients." (As to officers 
 authorized to order general and summary 
 courts-martial, see sec. 1624, R. S., arts. 
 
 26 and 38, and notes thereto. As to juris- 
 diction of summary courts-martial, see 
 sec. 1624, R. S., art. 26.) 
 
 See section 7 of this act, set forth below, as to 
 objection by accused to trial by deck court. 
 
 The act of August 29, 1916 (39 Stat., 586), fur- 
 ther provided that "when a force of ma- 
 rines is embarked on a naval vessel, or 
 vessels, as a separate organization, not a 
 part of the authorized complement thereof, 
 the authority and powers of the officers of 
 such separate organization of marines 
 shall be the same as though such organiza- 
 tion were serving at a navy yard on shore, 
 but nothing herein shall be construed as 
 impairing the paramount authority of the 
 commanding officer of any naval vessel 
 over the vessel under his command and all 
 persons embarked thereon." 
 
 [1909, Feb. 16, sec. 2. Constitution of deck courts; oaths; punishments.] 
 That such courts shall be known as " deck courts," and shall consist of one com- 
 missioned officer only, who, while serving in such capacity shall have power to 
 administer oaths, to hear and determine cases, and to impose, in whole or in- 
 part, the punishments prescribed by article thirty of the Articles for the Govern- 
 ment of the Navy: Provided, That in no case shall such courts adjudge dis- 
 charge from the service or adjudge confinement of forfeiture of pay for a longer 
 period than twenty days. — '(35 Stat., 621, chap. 131.) 
 
 For "article thirty of the Articles for the Gov- 
 ernment of the Navy," see section 1624, 
 Re\'i8ed Statutes, article 30; and see note 
 thereto for amendatory statutes. 
 
 By act of October 6, 1917 (40 Stat., 393-394), 
 commissioned officers of certain auxiliary 
 naval forces were authorized to serve on 
 
 naval courts-martial and deck courts in 
 time of war or emergency. (See that act 
 and amendments noted thereunder.) 
 See section 183, Re^dsed Statutes, and note 
 thereto, as to authority of naval officers to 
 administer oaths. 
 
 [1909, Feb. 16, sec. 3. Recorder of deck court.] That any person in the 
 Navy under command of the officer by whose order a deck court is convened 
 may be detailed to act as recorder thereof. — (35 Stat., 621, chap. 131.) 
 
 [1909, Feb. 16, sec. 4. Deck courts, reviewing authority, mitigation of 
 sentence.] That the officer within whose command a deck court is sitting 
 shall have full power as reviewing authority to remit or mitigate, but not to 
 commute, any sentence imposed by such court; but no sentence of a deck 
 court shall be carried into effect until it shall have been so approved or miti- 
 gated, and such officer shall have power to pardon any punishment such court 
 may adjudge. — (35 Stat., 621, chap. 131.) 
 
 See notes to section 1624, Revised Statutes, 
 under articles 32-33, and 53-54; see also 
 note to Constitution, Article II, section 2, 
 clause 1, under "III. Power to pardon 
 
 offenses against United States;" and see 
 sections 6, 9, and 17 of this act, set forth 
 below. 
 
 1308 
 
Naval Courts. 
 
 Ft. 3. STATUTES AT LARGE. 
 
 Feb. 16, 1909. 
 
 [1909, Feb. 16, sec. 5. Deck courts, regulations of the President.] That 
 the courts hereby authorized shall be governed in all details of their constitu- 
 tion, powers, and procedure, except as herein provided, by such rules and 
 regulations as the President may prescribe. — (.35 Stat., 621, chap. 131.) 
 
 See sections 161 and 1547, Revised Statutes, 
 and notes thereto, on general subject of 
 regulations. 
 
 See section 1624, Revised Statutes, articles 
 34 and 42-45, as to the proceedings cf 
 summary and general courts-martial. 
 
 [1909, Feb. 16, sec. 6. Records of deck courts; review by Judge Advo- 
 cate General ; action of Secretary.] That the records of the proceedings of the 
 courts hereby authorized shall contain such matters only as are necessary to 
 enable the reviewing authorities to act intelligently thereon, except that if the 
 party accused demands it within thirty days after the decision of the deck 
 court shall become known to him, the entire record or so much as he desires 
 shall be sent to the reviewing authority. Such records, after action thereon by 
 the convening authority, shall "be forwarded directly to, and shall be filed in, 
 the Office of the Judge-Advocate-General of the Navy, where they shall be 
 reviewed, and, when necessary, submitted to the Secretary of the Navy for his 
 action.— (35 Stat., 621, chap. 131.) 
 
 See section 1624, Revised Statutes, articles 34 
 and 52, as to records of courts-martial; and 
 see laws noted below, under section 14 of 
 this act, aa to the disposal of useless papers. 
 
 See act of June 8, 1880 (21 Stat., 164), as to the 
 duties of the Judge Advocate General. 
 
 See sections 4, 9, and 17 of this act, as to 
 execution of deck court sentences. 
 
 [1909, Feb. 16, sec. 7. Objection to trial by deck court.] That no person 
 who objects thereto shall be brought to trial before a deck court. Where such 
 objection is made by the person accused, trial shall be ordered by summary or 
 by general court-martial, as may be appropriate. — (35 Stat., 621, chap. 131.) 
 
 As to jurisdiction of deck courts, see section 1, 
 of this act, set forth above; as to summary 
 
 and general courts-martial, see section 
 1624, Revised Statutes, articles 26 and 38. 
 
 [1909, Feb. 16, sec. 8. Punishments by summary courts-martial, etc. ; use of 
 irons.] That the courts authorized to impose the punishments prescribed by 
 article thirty of the Articles for the Government of the Navy may adjudge 
 either a part or the whole, as may be appropriate, of any one of the punish- 
 ments therein enumerated : Provided^ That the use of irons, single or double, 
 is hereby abolished, except for the purpose of safe custody or when part of a 
 sentence imposed by a general court-martial. — (35 Stat., 621, chap. 131.) 
 
 Article thirty of the Articles for the Govern- 
 ment of the Navy, which is modified by 
 this section, is article 30 of section 1624, 
 Revised Statutes, prescribing punishments 
 which may be imposed by simimary courts- 
 martial. By article 35 of section 1624, 
 Revised Statutes, general courts-martial 
 were empowered to adjudge any punish- 
 ment which a siunmary court-martial is 
 
 authorized to inflict; by section 2 of this 
 act, set forth above, deck courts were also 
 authorized to impose such punishments, 
 with certain limitations. 
 The use of irons in the Navy had previously 
 been restricted by a clause in the act of 
 May 13, 1908 (.35 Stat., 132), superseded 
 bv this section. 
 
 [1909, Feb. 16, sec. 9. Secretary of the Navy; action on proceedings and 
 sentences of courts-martial.] That the Secretary of the Navy may set aside the 
 proceedings or remit or mitigate, in whole or in part, the sentence imposed by 
 any naval court-martial convened by his order or by that of any officer of the 
 Navy or Marine Corps. — (35 Stat., 621, chap. 131.) 
 
 1309 
 
Feb. 16, 1909. Pt. 3. STATUTES AT LARGE. Naval Courts. 
 
 See notes to section 1624, Revised Statutes, 
 under articles 32-33 and 53-54; see also 
 act of June 8, 1880 (21 Stat., 164), as to 
 review of court-martial proceedings by the 
 Judge Advocate Cieneral; and see sections 
 
 4, 6, and 17 of this act as to sentences of 
 deck courts. 
 See act of April 9, 1906, section 3 (34 Stat., 
 104-105), as to review of courts-martial 
 in the cases of midshipmen. 
 
 [1909, Feb. 16, sec. 10. General courts-martial, by whom convened.] That 
 general courts-martial may be convened by the President, by the Secretary of 
 the Navy, by the commander in chief of a fleet or squadron, and by the com- 
 manding officer of any naval station beyond the continental limits of the United 
 States.— (35 Stat., 621, chap. 131.) 
 
 This section superseded article 38 of section 1624, Revised Statutes; see note to that article 
 for later law on the subject. 
 
 [1909, Feb. 16, sec. 11. Witnesses, naval courts-martial and courts of in- 
 quiry ; compulsory process.] That a naval court-martial or court of inquiry shall 
 have power to issue like process to compel witnesses to appear and testify which 
 United States courts of criminal jurisdiction within the State, Territory, or 
 District where such naval court shall be ordered to sit may lawfully issue. — 
 (35 Stat., 621-622, chap. 131.) 
 
 Revised Statutes, and notes thereto; and see 
 note to Constitution, Sixth Amendment, 
 under "VII. Compulsory process for ob- 
 taining witnesses. ' ' 
 
 See next section of this act, set forth below, 
 
 restricting operation of this section; and 
 
 see section 16, below, as to depositions. 
 See notes to section 1624, Revised Statutes, 
 
 articles 42 and 57; see also sections 877-881, 
 
 [1909, Feb. 16, sec. 12. Refusal of witness to appear or testify; punishment; 
 fees; self-incrimination.] That any person duly subpoenaed to appear as a 
 witness before a general court-martial or court of inquiry of the Navy, who 
 willfully neglects or refuses to appear, or refuses to qualify as a witness or to 
 testify or produce documentary evidence, which such person may have been 
 legally subpoenaed to produce, shall be deemed guilty of a misdemeanor, for 
 which such person shall be punished on information in the district court of the 
 United States; and it shall be the duty of the United States District Attorney, 
 on the certification of the facts to him by such naval court to file an information 
 against and prosecute the persons so offending, and the punishment of such 
 person, on conviction, shall be a fine of not more than five hundred dollars or 
 imprisonment not to exceed six months, or both, at the discretion of the court: 
 Provided, That this shall not apply to persons residing beyond the State, Terri- 
 tory, or District in which such naval court is held, and that the fees of such 
 witnesses and his mileage at the rates provided for witnesses in the United 
 States district court for said State, Territory, or District shall be duly paid or 
 tendered said witness, such amounts to be paid by the Bureau of Supplies and 
 Accounts out of the appropriation for compensation of witnesses: Provided 
 further, That no witness shall be compelled to incriminate himself or to answer 
 any question which may tend to incriminate or degrade him. — (35 Stat., 622, 
 chap. 131.) 
 
 As to witness fees, see sections 848-851, Revised 
 
 Statutes, and notes thereto. 
 As to refusal of witness to testify, see articles 
 
 42 and 57, section 1624, Revised Statutes. 
 
 As to protection of witness against self-incrimi- 
 nation, see note to Constitution, Fifth 
 Amendment, under "III. Compelling per- 
 son to be \\'itness against himself." 
 
 As to depositions of witnesses, see section 16 of 
 this act, set forth below. 
 
 [1909, Feb. 16, sec. 13. Naval prisoners, allowances to; clothing and gratuity 
 on discharge.] That persons confuied in prisons in pursuance of the sentence 
 
 1310 
 
Naval Courts. 
 
 Pt. 3. STATUTES AT LARGE. 
 
 Feb. 16, 1909. 
 
 of a naval court-martial shall, during such confinement, be allowed a reason- 
 able sum, not to exceed three dollars per month, for necessary prison expenses, 
 and shall upon discharge be furnished with suitable civilian clothing and paid a 
 gratuity, not to exceed twenty-five dollars : Provided, That such allowances shall 
 be made in amounts to be fixed by, and in the discretion of, the Secretary of 
 the Navy and only in cases where the prisoners so discharged would otherwise 
 be unprovided with suitable clothing or without funds to meet their immediate 
 needs.— (35 Stat., 622, chap. 131.) 
 
 See act of March 3, 1909 (35 Stat., 756), provid- 
 ing for clothing and transportation to be 
 furnished discharged naval prisoners. 
 
 Prior to this enactment it was held by the 
 Comptroller of the Treasury that naval 
 prisoners under sentence of court-martial 
 were entitled, prior to expiration of enlist- 
 ment, to credit for pay coming due and not 
 
 forfeited by the sentence of the court; but 
 that after expiration of enlistment, al- 
 though not then discharged, no pay could 
 accrue or be credited to such prisoners. 
 (See 9 Comp. Dec, 257, noted under sec. 
 1422, R. S., "Detention of enlisted men 
 under court-martial sentence.") 
 
 [1909, Feb. 16, sec. 14. Summary court-martial proceedings and record.] 
 That section sixteen hundred and twenty-four, article thirty-four, Revised 
 Statutes of the United States, is hereby amended as follows: "The proceedings 
 of summary courts-martial shall be conducted with as much conciseness and 
 precision as may be consistent with the ends of justice, and under such forms 
 and rules as may be prescribed by the Secretary of the Navy, with the approval 
 of the President, and all such proceedings shall be transmitted in the usual 
 mode to the Navy Department, where they shall be kept on file for a period of 
 two years from date of trial, after which time they may be destroyed in the 
 discretion of the Secretary of the Navy." — (35 Stat., 622, chap. 131.) 
 
 See note to section 1624, Revised Statutes, article 34; see also acts of June 8, 1880 (21 Stat. 
 164), and February 16, 1889 (25 Stat., 672), and notes thereunder. 
 
 [1909, Feb. 16, sec. 15. Arrest of naval offenders.] That it shall be lawful 
 for any civil officer having authority under the laws of the United States or of 
 any State, Territory, or District to arrest offenders, to summarily arrest a 
 deserter from the Navy or Marine Corps of the United States and deliver him 
 into the custody of the naval authorities.— (35 Stat., 622, chap. 131.) 
 
 See note to Constitution, Fourth Amendment, 
 under "Arrest of military offenders;" and 
 
 see section 1624, Revised Statutes, article 
 43, and note thereto. 
 
 [1909, Feb. 16, sec. 16. Depositions of witnesses, naval courts.] That the 
 depositions of witnesses may be taken on reasonable notice to the opposite 
 party, and when duly authenticated, may be put in evidence before naval courts, 
 except in capital cases and cases where the punishment may be imprisonment 
 or confinement for more than one year as follows : First, depositions of civilian 
 witnesses residing outside the State, Territory, or District in which a naval 
 court is ordered to sit; second, depositions ot persons in the naval or military 
 service stationed or residing outside the State, Territory, or District in which a 
 naval court is ordered to sit, or who are under orders to go outside of such 
 State, Territory, or District; third, where such naval court is convened on 
 board a vessel of the United States, or at a naval station not within any State, 
 Territory, or District of the United States, the depositions of witnesses may be 
 taken and used as herein provided whenever such witnesses reside or are sta- 
 tioned at such a distance from the place where said naval court is ordered to sit, 
 
 1311 
 
Mar. 3, 1909. PL 3. STATUTES AT LARGE. 
 
 or are about to go to such a distance as, in the judgment of the convening 
 authority would render it impracticable to secure their personal attendance. — 
 (35 Stat., 622-623, chap. 131.) 
 See sections 868-874, Revised Statutes, and tion, Sixth Amendment, under "VI. Con- 
 
 notes thereto; see also note to Constitu- 
 
 frontin? witnesses. ' ' 
 
 [1909, Feb. 16, sec. 17. Sentences, summary courts-martial and deck courts; 
 execution of.] That all sentences of summary courts-martial may be carried 
 into effect upon the approval of the senior ofTicer present, and all sentences of 
 deck courts may be carried into effect upon approval of the convening authority 
 or his successor in office. — (35 Stat., 623, chap. 131.) 
 
 As to power of Secretary of the Navy over 
 proceedings and sentences of courts- 
 martial, see section 9 of this act, set forth 
 above, and see references thereunder. 
 
 This section is modified, as to sentences of 
 
 summary courts-martial, by act of August 
 
 29, 1916 (39 Stat., 586); see note to article 
 
 32 of section 1624, Re\'ised Statutes. 
 As to sentences of deck courts, see sections 4 
 
 and 6 of this act, set forth above. 
 
 [1909, Feb. 16, sec. 18. Repeal of prior acts.] That all Acts or parts of 
 Acts inconsistent herewith are hereby repealed. — (35 Stat., 623, chap. 131.) 
 
 [1909, Mar. 3. Army ordnance property, sales to naval officers.] Articles 
 of ordnance property may be sold by the Chief of Ordnance to officers of the 
 Navy and Marine Corps, for their use in the public service, in the same manner 
 as these articles are now sold to officers of the army. — (35 Stat., 751, chap. 252.) 
 
 See act of August 24, 1912 (37 Stat,, 589), and laws noted thereunder. 
 
 1909, Mar. 3. Retirement for Civil-War service.] The provisions of the 
 act approved June twenty-ninth, nineteen hundred and six, entitled "An act 
 making appropriations for the naval service for the fiscal year ending June 
 thirtieth, nineteen hundred and seven, and for other purposes," providing for 
 the retirement in the next higher grade of officers of the navy who served during 
 the civil war, shall not operate to deprive any officer of the navy who has been, 
 or may be, retired, since the passage of that act, of the right to increased rank 
 and pay to which, but for the passage of said act, he would have been entitled. — 
 (35 Stat., 753, chap. 255.) 
 
 See act of June 29, 1906 (34 Stat., 554), and act of March 3, 1899, section 11 (30 Stat., 1007). 
 
 [1909, Mar. 3. Estimates for "Pay of the Navy."] The estimates for the 
 support of the Navy shall hereafter show, under tlie head of Pay of the Navy, 
 the sums allowed for pay of officers belonging to the line, to the several depart- 
 ments of the staff, and to the retired list; the estimates to show under each 
 head the amount allowed for pay proper, for increases due to longevity and 
 foreign service, and for pay at sea rates to officers employed on shore ; togetlier 
 with the total number of warrant and petty officers and seamen of the several 
 grades and designations, including as to each class the amount allowed for pay 
 proper and for longevity or service increases. The estimates shall include a 
 list giving the rates of pay for all petty officers and other enlisted men of the 
 Navy.— (35 Stat., 754, chap. 255.) 
 
 An identical provision was contained in the act of May 13, 1908 (35 Stat., 129). 
 
 [1909, Mar. 3. Pay and number of employees at navy yards and stations; 
 annual report to Congress, etc.] That hereafter the rates of pay of the clerical, 
 drafting, inspection, and messenger force at navy-yards and naval stations and 
 
 1312 
 
PL 3. STATUTES AT LARGE. Mar. 3, 1909. 
 
 other stations and offices under the Navy Department shall be paid from lump 
 appropriations and shall be fixed by the Secretary of the Navy on a per annum 
 or per diem basis as he may elect ; that the number may be increased or decreased 
 at his option and shall be distributed at the various navy-yards and naval 
 stations by the Secretary of the Navy to meet the needs of the naval service 
 * * * ; that the total amount expended annually for pay for such clerical, 
 drafting, inspection, and messenger force shall not exceed the amounts specifi- 
 cally allowed by Congress under the several lump appropriations, and that the 
 Secretary of the Navj^ shall each year, in the annual estimates, report to Con- 
 gress the number of persons so employed, their duties, and the amount paid to 
 each.— (35 Stat., 754-755, chap. 255.) 
 
 The omitted portion of this enactment relates 
 to leaves of absence allowed such employ- 
 ees; for text thereof, and later laws relat- 
 ing to such leaves of absence, see note to 
 section 1545, Revised Statutes. 
 
 The above provision was followed by a proviso 
 in the following language: "That it shall 
 be the duty of the Secretary of the Navy to 
 submit to Congress at its next session, and 
 for its considei-ation, a schedule of rates of 
 compensation, annual or per diem, that 
 should, in his judgment, be permanently 
 fixed by law for clerical, inspection, and 
 messenger service in navy-yards, naval 
 stations, and purchasing pay offices,^ super- 
 intending construction offices, and inspec- 
 tion of engineering material; and in fixing 
 such rates of compensation he shall have 
 
 due regard for the rates usually paid for 
 like services in the respective localities by 
 employers other than the United States, 
 and lie shall not recommend any rate 
 exceeding that being paid by the United 
 States at any such yards, stations, or offices 
 prior to January first, nineteen hundred 
 and nine." 
 
 See act of July 16, 1862 (12 Stat., 587), provid- 
 ing that the rates of wages of employees in 
 navy-yards shall conform, as nearly as is 
 consistent with the pubUc interest, with 
 those of private establishments in the 
 immediate vicinity. 
 
 See section 429, Revised Statutes, and note 
 thereto, as to reports required to be made 
 by the Secretary of the Navy; and see act 
 of May 30, 1908 (35 Stat., 505). 
 
 [1909, Mar. 3. Preference for employment, navy yards and stations.] That 
 persons employed in the clerical, drafting, and inspection force at navy-yards 
 and stations discharged for lack of work or insufficiency of funds shall for one 
 year thereafter be preferred for employment in such navy-yards and stations in 
 the clerical, drafting, inspection, and messenger forces. — (35 Stat., 755, chap. 
 255.) 
 
 See sections 1544 and 1754, Re\ised Statutes, and notes thereto. 
 
 [1909, Mar. 3. Discharg-ed prisoners; transportation and clothing-.] That 
 the Secretary of the Navy is hereafter authorized to transport to their homes or 
 places of enlistment, as he may designate, all discharged naval prisoners; the 
 expense of such transportation shall be paid out of any money that may be to 
 the credit of prisoners when discharged; where there is no such money, the 
 expense shall be paid out of money received from fines and forfeitures imposed 
 by naval courts-martial: Provided further, That the Secretary of the Navy is 
 hereby authorized to furnish naval prisoners upon discharge suitable civilian 
 clothing in case, and only where, said discharged prisoners would otherwise be 
 unprovided with suitable clothing to meet their immediate needs. — (35 Stat., 
 756, chap. 255.) 
 
 See act of February 16, 1909, section 13 (35 Stat., 622); and see sections 3689 and 4809, Re- 
 vised Statutes, and notes thereto. 
 
 [1909, Mar. 3. Sale of stores to Navy and Marine Corps, and civilian em- 
 ployees.] That hereafter such stores as the Secretary of the Navy may desig- 
 nate may be procured and sold to officers and enlisted men of the Navy and 
 
 1313 
 
Mar. 3, 1009. 
 
 Pt. S. STATUTES AT LARGE. 
 
 Marine Corps, also to civilian employees at naval stations be3'ond the continental 
 limits of the United States and in Alaska, under such regulations as the Secre- 
 tary of the Navy may prescribe. — (35 Stat., 768, chap. 255.) 
 
 See note to eectious 418, 1135, and 1612, Re- 
 vised Statutes; see also acts of June 24, 
 1910 (36 Stat., 619), and March 4, 1913 
 
 (37 Stat., 909); and see laws noted under 
 act last cited. 
 
 [1909, Mar. 3. Report to Congress, repairs made on vessels.] That hereafter 
 it shall be the duty of the Secretary of the Navy to report to Congress at the 
 beginning of each regular session thereof, in addition to the report directed to 
 be made in the act of March second, nineteen hundred and seven, making appro- 
 priations for the naval service for the fiscal year ending June thirtieth, nineteen 
 hundred and eight, and for other purposes, a detailed statement showing the 
 amount expended from each of the appropriations for the repair of every ship 
 where such repairs exceed for any one ship the sum of two hundred thousand 
 dollars in any one fiscal year. — (35 Stat., 769, chap. 255.) 
 
 See act of March 2, 1907 (34 Stat., 1195), and see note to section 1538, Revised Statutes. See 
 also section 429, Revised Statutes, and note thereto. 
 
 [1909, Mar. 3. Warrant machinists, title changed to machinist; promotion 
 to chief machinists.] The title of warrant machinist is hereby changed to 
 machinist; and all machinists shall, after six years from date of warrant, be 
 commissioned chief machinists, to rank with, but after, ensign, and shall, on 
 promotion, have the same pay and allowances as are allowed chief boatswains, 
 chief gunners, chief carpenters, and chief sailmakers, and no machinist shall be 
 promoted until he shall have passed such examination before a board as the 
 Secretary of the Navy may prescribe. — (35 Stat., 771, chap. 255.) 
 
 See notes to sections 1405, 1556, 1588, and 1592, Revised Statutes. 
 
 [1909, Mar. 3. Warrant officers, promotion not to reduce pay.] No warrant 
 officer, heretofore or hereafter promoted six years from date of warrant, shall 
 suffer a reduction in pay which, but for such promotion, would have been 
 received by him. — (35 Stat., 771, chap. 255.) 
 
 See notes to sections 1405, 1556, 1588, and 1592, Re\d8ed Statutes. 
 
 [1909, Mar. 3. Commissioned warrant officers, appointment as ensigns.] 
 That chief boatswains, chief gunners, and chief machinists shall be eligible for 
 appointment to the grade of ensign under the restrictions imposed by law upon 
 the appointment of boatswains, gunners, and warrant machinists to that grade. — 
 (35 Stat., 771, chap. 255.) 
 
 See notes to sections 1405 and 1491, Revised Statutes. 
 
 [1909, Mar. 3. Naval Academy chapel, use of for memorials.] The crypt 
 and window spaces of the United States Naval Academy chapel are to be used 
 only for memorials to United States naval officers who have successfully com- 
 manded a fleet or squadron in battle, or who have received or may receive the 
 thanks of the Congress of the United States for conspicuously distinguished 
 services in time of war, and no memorial shall be accepted for or installed in 
 said crypt or window spaces until at least five years after the death of the officer 
 in question : Provided, That nothing in this provision shall be considered as 
 invalidating any agreement made by the present or any former superintendent 
 
 1314 
 
PL 3. STATUTES AT LARGE. Mar. 4, 1909. 
 
 of the Naval Academy, authorizing a memorial window in the old Naval 
 Academy chapel to be transferred to the new Naval Academy chapel. — (.35 
 Stat., 773, chap. 25.5.) 
 
 See act of March 4, 1921 (41 Stat., 1440). 
 
 [1909, Mar. 3. Traveling expense claims, shortest usually traveled route.] 
 Pay, ^Iarine Corps * * * That hereafter the settlement of all traveling 
 expense claims, where the payment of such is authorized by existing law, and the 
 determination of distances and of what constitutes the shortest usually traveled 
 route in the meaning of laws relating to traveling allowances, shall accord to 
 such rules as the Secretary of the Navy may prescribe. — (35 Stat., 774, chap. 
 255.) 
 
 See sections 1566 and 1612, Re\'i8ed Statutes, and notes thereto. 
 
 [1909, Mar. 3. Extra-duty pay, Marine Corps.] That hereafter extra-duty 
 pay will not be allowed to enlisted men of the IVlarine Corps except when they 
 are regularly detailed thereon by a written order of the commandant of the 
 corps. — (35 Stat., 776, chap. 255.) 
 
 See note to section 1612, Revised Statutes. 
 
 [1909, Mar. 4, sec. 4. Estimates, form and arrangement of.] When esti- 
 mates hereafter transmitted to the Treasury for submission to Congress do not 
 in form and arrangement comply with the provisions of section four of the 
 legislative, executive, and judicial appropriation Act, approved June twenty- 
 second, nineteen hundred and six, they shall, under direction of the Secretary 
 of the Treasury, be rearranged so as to comply with said requirements of law. — 
 (35 Stat., 907, chap. 297.) 
 
 See act of June 22, 1906, section 4 (34 Stat.. 
 
 Revised Statutes, and act of August 23, 
 
 448-449); see also sections 430 and 36G0, 1912, section 9 (37 Stat., 415.) 
 
 [1909, Mar. 4, sec. 7. Estimates; reduction; additional revenues required.] 
 Immediately upon the receipt of the regular annual estimates of appropriations 
 needed for the various branches of the Government it shall be the duty of the 
 Secretary of the Treasury to estimate as nearly as may be the revenues of the 
 Government for the ensuing fiscal year, and if the estimates for appropriations, 
 including the estimated amount necessary to meet all continuing and perma- 
 nent appropriations, shall exceed the estimated revenues the Secretary of the 
 Treasury shall transmit the estimates to Congress as heretofore required by 
 law and at once transmit a detailed statement of all of said estimates to the 
 President, to the end that he may, in giving Congress information of the state 
 of the Union and in recommending to their consideration such measures as he 
 may judge necessary, advise the Congress how in his judgment the estimated 
 appropriations could with least injury to the public service be reduced so as to 
 bring the appropriations within the estimated revenues, or, if such reduction 
 be not in his judgment practicable without undue injury to the public service, 
 that he may recommend to Congress such loans or new taxes as maj^ be necessary 
 to cover the deficiency. — (35 Stat., 1027, chap. 299.) 
 
 See note to section 430, Re%-i8ed Statutes. 
 
 [1909, Mar. 4, sec. 8. Disbursing clerks; temporary absence; substitute.] 
 In case of the sickness or unavoidable absence of any disbursing clerk or dis- 
 
 1315 
 
Mar. 4, 1909. Pt. 3. STATUTES AT LARGE. Criminal Code. 
 
 bursing agent of any executive department, independent bureau, or office, in 
 Washington, District of Columbia, he may, with the approval of the head of 
 the department, independent bureau, or oilice, in which said disbursing clerk 
 or agent is employed, authorize the clerk of highest grade employed therein 
 to act in his place, and to discharge all the duties by law or regulations of such 
 disbursing clerk or agent. The official bond given by the principal of the 
 office shall be held to cover and apply to the acts of the person appointed to 
 act in his place in such cases. Such acting officer shall, moreover, for the time 
 being, be subject to all the liabilities and penalties prescribed by law for the 
 official misconduct in like cases, of the disbursing clerk or disbursing agent, 
 respectively, for whom he acts, and such acting officer shall be required by the 
 head of the department, independent bureau, or office, to give bond to and in 
 such sum as the disbursing clerk or disbursing agent may require. — (35 Stat., 
 1027, chap. 299.) 
 
 See notes to sections 176 and 1383, Revised Statutes. 
 
 [1909, Mar. 4, sec. 9. Expenses of unauthorized boards, commissions, etc.] 
 That hereafter no part of the public moneys, or of any appropriation heretofore 
 or hereafter made by Congress, shall be used for the payment of compensation 
 or expenses of any commission, council, board, or other similar body, or any 
 members thereof, or for expenses in connection with any work or the results of 
 any work or action of any commission, council, board, or other similar body, 
 unless the creation of the same shall be or shall have been authorized by law; 
 nor shall there be employed by detail, hereafter or heretofore made, or other- 
 wise personal services from any executive department or other government 
 establishment in connection with any such commission, council, board, or 
 other similar body. — (35 Stat., 1027, chap. 299.) 
 
 See section 3681, Revised Statutes. 
 
 [1909, Mar. 4. The Criminal Code.] That the penal laws of the United 
 States be, and they hereby are, codified, revised, and amended, with title, 
 chapters, headnotes, and sections, entitled, numbered, and to read as follows: — 
 (35 Stat., 1088, chap. 321.) 
 
 See section 1624, Revised Statutes, article 22, and note thereto. 
 
 CRIMES. 
 
 Chapter One. 
 
 offenses against the existence of the government. 
 
 Sec. 
 
 1. Treason. 
 
 2. Punishment of treason. 
 
 3. Misprision of treason. 
 
 4. Inciting or engaging in rebellion or insur- 
 
 rection. 
 
 5. Criminal correspondence with foreign gov- 
 
 ernments. 
 
 Sec. 
 
 6. Seditious conspiracy. 
 
 7 . Recruiting soldiers or sailors to serve against 
 
 the United States. 
 
 8. Enlistment to serve against the United 
 
 States. 
 
 Sec. 1. [Treason defined.] Whoever, owing allegiance to the United 
 vStates, levies war agamst them or adheres to their enemies, giving them aid and 
 comfort withm the United States or elsewhere, is guilty of treason. — (35 Stat., 
 1088; sec. 5331, R. S.) 
 
 1316 
 
Criminal Code. Pt. 3. STATUTES AT LARGE. Mar. 4, 1909. 
 
 wSec. 2. [Punishment of treason.] Whoever is convicted of treason 
 shall suffer death; or, at the discretion of the court, shall be imprisoned not less 
 than five years and fined not less than ten thousand dollars, to be levied on and 
 collected out of any or all of his property, real and personal, of which he was 
 the owner at the time of committing such treason, any sale or conveyance to 
 the contrary notwithstanding; and every person so convicted of treason shall, 
 moreover, be incapable of holding any office under the United States.— (35 
 Stat., 1088; sec. 5332, R. S.) 
 
 Sec. 3. [Misprision of treason defined.] Whoever, owing allegiance to 
 the United States and having knowledge of the commission of any treason 
 agamst them, conceals and does not, as soon as may be, disclose and make 
 known the same to the President or to some judge of the United States, or to 
 the governor or to some judge or justice of a particular State, is guilty of mis- 
 prision of treason and shall be imprisoned not more than seven years and 
 fined not more than one thousand dollars. — (35 Stat., 1088; sec. 5333, R. S.) 
 
 Sec. 4. [Inciting, etc., rebellion or insurrection.] Whoever incites, 
 sets on foot, assists, or engages in any rebellion or insurrection against the 
 authority of the United States or the laws thereof, or gives aid or comfort 
 thereto, shall be imprisoned not more than ten years, or fined not more than 
 ten thousand dollars, or both; and shall, moreover, be incapable of holding any 
 office under the United States.— (35 Stat., 1088; sec. 5334, R. S.) 
 
 Sec. 5. [Criminal correspondence with foreign governments.] 
 Every citizen of the United States, whether actually resident or abiding within 
 the same, or in any place subject to the jurisdiction thereof, or in any foreign 
 country, without the permission or authority of the Government, directly or 
 indirectly, commences or carries on any verbal or written correspondence or 
 intercourse with any foreign Government or any officer or agent thereof, 
 with an intent to influence the measures or conduct of any foreign Government 
 or of any officer or agent thereof in relation to any disputes or controversies 
 with the United States or to defeat the measures of the Government of the 
 United States; and every person, bemg a citizen of or resident within the United 
 States or in any place subject to the jurisdiction thereof, and not duly authorized, 
 counsels, advises, or assists in any such correspondence with such intent, shall 
 be fined not more than five thousand dollars and imprisoned not more than 
 three years; but nothing in this section shall be construed to abridge the right 
 of a citizen to apply, hunself or his agent, to any foreign government or the 
 agents thereof for redress of any injury which he may have sustained from such 
 government or any of its agents or subjects. — (35 Stat., 1088-1089; sec. 5335, 
 R. S.) 
 
 Sec. 6. [Seditious consplracy.] If two or more persons in any State or 
 Territory, or in any place subject to the jurisdiction of the United States, 
 conspire to overthrow, put down, or to destroy by force the Government of 
 the United States, or to levy war against them, or to oppose by force the authority 
 thereof, or by force to prevent, hinder, or delay the execution of any law of the 
 United States, or by force to seize, take, or possess any property of the United 
 States contrary to the authority thereof, they shall each be fined not more than 
 five thousand dollars or imprisoned not more than six years, or both. — -(35 
 Stat., 1089; sec. 5336, R. S.) 
 
 1317 
 
Mar. 4, 1909. Pt. S. STATUTES AT LARGE. Criminal Code. 
 
 excluded from readmission to the United 
 States. 
 
 By act of May 10, 1!>20 (41 Stat., 593-594), it 
 was provided tliat any alien convicted of 
 violating this section shall be deported and 
 
 Sec. 7. [Recruiting for service against United States.] Whoever 
 recruits soldiers or sailors within the United States, or in any place subject to 
 the jurisdiction thereof, to engage hi armed hostility against the same, or 
 opens within the United States, or in any place subject to the jurisdiction 
 thereof, a recruiting station for the enlistment of such soldiers or sailors to serve 
 m any manner in armed hostility against the United States, shall be fined not 
 more than one thousand dollars and imprisoned not more than five years. — 
 (35 Stat., 1089; sec. 5337, R. S.) 
 
 Sec. 8. [Enlisting to serve against United States.] Every person 
 enlisted or engaged within the United States or in any place subject to the juris- 
 diction thereof, with intent to serve in armed hostility against the United States, 
 shall be fined one hundred dollars and imprisoned not more than three years. — 
 (35 Stat., 1089; sec. 5338, R. S.) 
 
 Chapter Two. 
 
 offenses against neutrality. 
 
 Sec. 
 9. Accepting a foreign commission. 
 
 10. Enlisting in foreign service. 
 
 11. Arming vessels against people at peace with 
 
 the United States. 
 
 12. Augmenting force of foreign vessel of war. 
 
 Sec. 
 
 13. Military expeditions against people at peace 
 
 with the United States. 
 
 14. Enforcement of foregoing provisions. 
 
 15. Compelling foreign vessels to dei^art. 
 18. Construction of this chapter. 
 
 Sec. 9. [Accepting foreign commission to serve against friendly 
 power.] Every citizen of the United States who, within the territory or juris- 
 diction thereof, accepts and exercises a commission to serve a foreign prince, 
 state, colony, district, or people, in war, by land or by sea, against any prince, 
 state, colony, district, or people, with whom the United States are at peace, 
 shall be fined not more than two thousand dollars and imprisoned not more 
 than three years.— (35 Stat., 1089; sec. 5281, R. S.) 
 
 Sec. 10. [Enlisting, etc., in foreign service within United States.] 
 Whoever, within the territory or jurisdiction of the United States, enlists or 
 enters himself, or hires or retains another person to enlist or enter himself, or 
 to go beyond the limits or jurisdiction of the United States with intent to be 
 enlisted or entered in the service of any foreign prince. State, colony, district, 
 or people as a soldier or as a marine or seaman on board of any vessel of war, 
 letter of marque, or privateer shall be fined not more than $1,000 and imprisoned 
 not more than three years: Provided, That this section shall not apply to 
 citizens or subjects of any country engaged in war with a country with which the 
 United States is at war, unless such citizen or subject of such foreign country 
 shall hire or solicit a citizen of the United States to enlist or go beyond the juris- 
 diction of the United States with intent to enlist or enter the service of a foreign 
 country. Enlistments under this proviso shall be under regulations prescribed 
 by the Secretary of War.— (35 Stat., 1089-1090; 40 Stat., 39-40; sec. 5282, 
 R. S.) 
 
 This section of the Penal Code was expressly amended and reenacted to read as above by 
 act of May 7, 1917 (40 Stat., 39). 
 
 1318 
 
Criminal Code. 
 
 Pt.3. STATUTES AT LARGE. 
 
 Mar. 4, 1909. 
 
 Sec. 11. [Arming VESSELS AGAINST FRIENDLY POWERS.] Whoever, within 
 the territory or jurisdiction of the United States, fits out and arms, or attempts 
 to fit out and arm, or procures to be fitted out and armed, or knowingly is con- 
 cerned in the furnishing, fitting out, or arming of any vessel, with intent that 
 such vessel shall be employed in the service of any foreign prince or state, or of 
 any colony, district, or people, to cruise or commit hostilities against the sub- 
 jects, citizens, or property of any foreign prince or state, or of any colony, 
 district, or people, with whom the United States are at peace, or whoever 
 issues or delivers a commission within the territory or jurisdiction of the United 
 States for any vessel, to the intent that she may be so employed, shall be fined 
 not more than ten thousand dollars and imprisoned not more than three years. 
 And every such vessel, her tackle, apparel, and furniture, together with all 
 materials, arms, ammunition, and stores which may have been procured for 
 the building and equipment thereof, shall be forfeited; one half to the use of the 
 informer and the other half to the use of the United States. — (35 Stat., 1090; 
 sec. 5283, R. S.) 
 
 Sec. 12. [Augmenting force of foreign armed vessel.] Whoever, 
 within the territory or jurisdiction of the United States, increases or augments, 
 or procures to be increased or augmented, or knowingly is concerned in increas- 
 ing or augmenting, the force of any ship of war, cruiser, or other armed vessel 
 which, at the time of her arrival within the United States, was a ship of war, or 
 cruiser, or armed vessel, in the service of any foreign prince or state, or of any 
 colony, district, or people, or belonging to the subjects or citizens of any such 
 prince or state, colony, district, or people, the same being at war with any 
 foreign prince or state, or of any colony, district, or people, with whom the 
 United States are at peace, by adding to the number of the guns of such vessel, 
 or by changing those on board of her for guns of a larger caliber, or by adding 
 thereto any equipment solely applicable to war, shall be fined not more than 
 one thousand dollars and imprisoned not more than one year. — (35 Stat., 1090; 
 Sec. 5285, R. S.) 
 
 Sec. 13. [Organizing military or naval expedition against friendly 
 POWER.] Whoever, within the territory or jurisdiction of the United States or 
 of any of its possessions, knowingly begins or sets on foot or provides or prepares 
 a means for or furnishes the money for, or wlio takes part in, any military or 
 naval expedition or enterprise to be carried on from thence against the terri- 
 tory or dominion of any foreign prince or state, or of any colony, district, or 
 people with whom the United States is at peace, shall be fined not more than 
 $3,000 or imprisoned not more than three years, or both. — (35 Stat., 1090; 
 40 Stat., 223; sec. 5286, R. S.) 
 
 This section was expressly amended and reen- 
 acted to read as above by act of June 15, 
 1917, section 8 (40 Stat., 223). By section 
 9 of said act (40 Stat., 223), it was provided 
 
 "that the President may employ such part 
 of the land or naval forces of the United 
 States as he may deem necessary to carry 
 out the purposes of this title. " 
 
 Sec. 14. [Enforcement of foregoing sections; captures; use of 
 naval forces.] The district courts shall take cognizance of all complaints, by 
 whomsoever instituted, in cases of captures made within the waters of the 
 United States, or ^vithin a marine league of the coasts or shores thereof. In 
 
 1319 
 
Mar. 4, 1909. Pt. 3. STATUTES AT LARGE. Criminal Code. 
 
 every case in which a vessel is fitted out and armed, or attempted to be fitted 
 out and armed, or in which tlie force of any vessel of war, cruiser, or other armed 
 vessel is increased or augmented, or in which any military expedition or enter- 
 prise is begun or set on foot, contrary to the provisions and prohibitions of 
 this chapter; and in every case of the capture of a vessel within the jurisdiction 
 or protection of the United States as before defined; and in every case in which 
 any process issuing out of any court of the United States is disobeyed or resisted 
 by any person having the custody of any vessel of war, cruiser, or other armed 
 vessel of any foreign prince or state, or of any colony, district, or people, or of 
 any subjects or citizens of any foreign prince or state, or of any colony, district, 
 or people, it shall be lawful for the President, or such other person as he shall 
 have empowered for that purpose, to employ such part of the land or naval 
 forces of the United States, or of the militia thereof, for the purpose of taking 
 possession of and detaining any such vessel, with her prizes, if any, in order 
 to enforce the execution of the prohibitions and penalties of this chapter, and 
 the restoring of such prizes in the cases in which restoration shall be adjudged; 
 and also for the purpose of preventing the carrying on of any such expedition 
 or enterprise from the territory or jurisdiction of the United States against 
 the territory or dominion of any foreign prince or state, or of any colony, dis- 
 trict, or people with whom the United States are at peace. — (35 Stat., 1090; 
 sec. 5287, R. S.) 
 
 Sec. 15. [Compelling or preventing departure of vessels; use of 
 NAVAL forces.] It shall be lawful for the President to employ such part of 
 the land or naval forces of the United States, or of the militia thereof, as he 
 may deem necessary to compel any foreign vessel to depart from the United 
 States or any of its possessions in all cases in which, by the law of nations or 
 the treaties of the United States, it ought not to remain, and to detain or prevent 
 any foreign vessel from so departing in all cases in which, by the law of nations 
 or the treaties of the United States, it is not entitled to depart. — (35 Stat., 1091 ; 
 40 Stat., 223; sec. 5288, R. S.) 
 
 This section was expressly amended and reen- For other provisions of law on this subject, see 
 acted to read as above by act of June 15, act of June 15, 1917 (40 Stat., 221-223). 
 
 1917, section 10 (40 Stat., 223). See also 
 note to section 13 of the Criminal Code, set 
 forth above. 
 
 Sec. 18. [Construction of this chapter.] The provisions of this chapter 
 shall not be construed to extend to any subject or citizen of any foreign prince, 
 state, colony, district, or people who is transiently within the United States and 
 enlists or enters himself on board of any vessel of war, letter of marque, or 
 privateer, which at the time of its arrival within the United States was fitted 
 and equipped as such, or hires or retains another subject or citizen of the same 
 foreign prince, state, colony, district, or people who is transiently within the 
 United States to enlist or enter himself to serve such foreign prince, state, 
 colony, district, or people on board such vessel of war, letter of marque, or 
 privateer, if the United States shall then be at peace with such foreign prince, 
 state, colony, district, or people. Nor shall they be construed to prevent the 
 prosecution or punishment of treason, or of any piracy defined by the laws of 
 the United States.— (35 Stat., 1091; sec. 5291, R. S.) 
 
 1320 
 
Criminal Code. Pt. 3. STATUTES AT LARGE. Mar. 4, 1909. 
 
 Chapter Three, 
 offenses against the elective franchise and civil rights of citizens. 
 
 Sec. 
 
 22. Unlawful presence of troops at elections. 
 
 23. Intimidation of voters by officers, etc., of 
 
 Army or Navy. 
 
 24. Officers of Army or Navy prescribing quali- 
 
 fications of voters. 
 
 Sec. 
 
 25. Officers, etc., of Army or Navy interfering 
 
 with officers of election, etc. 
 
 26. Persons disqualified from holding office; 
 
 when soldiers, etc., may vote. 
 
 Sec. 22. [Unlawful presence of troops at polls.] Every officer of the 
 Army or Navy, or other person in the civil, mihtary, or naval service of the 
 United States, who orders, brings, keeps, or has under his authority or control 
 any troops or armed men at any place where a general or special election is 
 held in any State, unless such force be necessary to repel armed enemies of 
 the United States, shall be fined not more than five thousand dollars and im- 
 prisoned not more than five years. — (35 Stat., 1092; sec. 5528, R. S.) 
 
 Sec. 23. [Intimidating voters by army or navy officers, etc.] Every 
 officer or other person in the military or naval service of the United States 
 who, by force, threat, intimidation, order, advice, or otherwise, prevents, or 
 attempts to prevent, any qualified voter of any State from freely exercising 
 the right of suff"rage at any general or special election in such State shall be 
 fined not more than five thousand dollars and imprisoned not more than five 
 years.— (35 Stat., 1092; sec. 5529, R. S.) 
 
 Sec. 24. [Army or navy officers prescribing qualifications of 
 voters.] Every officer of the army or navy who prescribes or fixes, or attempts 
 to prescribe or fix, whether by proclamation, order, or otherwise, the qualifi- 
 cations of voters at any election in any vState shall be punished as provided in 
 the preceding section. — (35 Stat., 1092; sec. 5530, R. S.) 
 See section 2003, Revised Statutes. 
 
 Sec. 25. [Interfering with election officers by army or navy 
 OFFICERS, ETC.] Evcry officer or other person in the military or naval service 
 of the United vStates who, by force, threat, mtimidation, order, ov otherwise, 
 compels, or attempts to compel, any officer holding an election ui any State 
 to receive a vote from a person not legally qualified to vote, or who imposes, or 
 attempts to impose, any regulations for conducting any general or special elec- 
 tion in a State different from those prescribed by law, or who interferes in any 
 manner with any officer of an election in the discharge of his duty, shall be 
 punished as provided in section twenty-three. — (35 Stat., 1092-1093; sec. 
 5531, R. S.) 
 
 Sec. 26. [Additional punishment; when soldiers, etc., may vote.] 
 Every person convicted of any offense defined in the four preceding sections 
 shall, in addition to the punishment therein prescribed, be disqualified from 
 holding any office of honor, profit, or trust under the United States; but nothing 
 therein shall be construed to prevent any officer, soldier, sailor, or marine from 
 exercising the right of suffrage in any election district to which he may belong, 
 if otherwise qualified according to the laws of the State in which he offers to 
 vote.— (35 Stat., 1093; sec. 5532, R. S.) 
 
 See note to Constitution, Article I, section 8, 
 clause 13, under "II. Freedom from State 
 interference," subheading, "Poll taxes 
 upon persons in Navy;" see also note to 
 
 section 355, Revised Statutes, under "V. 
 Jurisdiction of the United States," sub- 
 heading, "Status of residents." 
 
 1321 
 
Mar. 4, 1909. 
 
 Pt. 3. STATUTES AT LARGE. 
 CiiAPTEii Four. 
 
 Criminal Code. 
 
 OFFENSES AGAINST THE OPERATIONS OF THE GOVERNMENT. 
 
 Sec. 
 
 28. Forerinc; bids, public records, etc. 
 
 29. Foririiii,' deed?, powers of attorney, etc. 
 
 30. Having fofLrcd pai)ers in possession. 
 
 31. Fabe acknowledgments. 
 
 32. Falsely pretending to be United States 
 
 officer. 
 
 34. False demand on fraudulent powder of 
 
 attorney. 
 
 35. Making or presenting false claims [pur- 
 
 chase of naval clothing]. 
 
 36. Embezzling arms, stores, etc. 
 
 37. Conspiracy to commit offense against the 
 
 United States; all parties liable for acts 
 of one. 
 
 38. Delaj-ing or defrauding captor or claimant, 
 
 etc. , of prize property. 
 
 39. Bribery of United States officer. 
 
 Sec. 
 
 40. Unlawfully taking or using papers relating 
 
 to claims. 
 
 41. Persons interested not to act as agents of 
 
 the Government. 
 
 42. Enticing desertions from the mfllitary or 
 
 naval service. 
 
 43. Enticing away workmen. 
 
 44. Injuries to fortifications, harbor defenses, 
 
 etc. 
 
 45. Unlawfully entering upon military reserva- 
 
 tion, fort, etc. 
 
 46. Robbery or larceny of personal property 
 
 of the United States. 
 
 47. Embezzling, stealing, etc., public property. 
 
 48. Receivers, etc., of stolen public property. 
 79. Falsely claiming citizenship. 
 
 Sec. 28. [Forging bonds, public records, or other writings.] Who- 
 ever shall falsel}^ make, alter, forge, or counterfeit, or cause or procure to be 
 falsely made, altered, forged, or coimterfeited, or willmgly aid or assist in the 
 false making, altering, forging, or counterfeiting, any bond, bid, proposal, 
 contract, guarantee, security, ofRcial bond, public record, affidavit, or other 
 writing for the purpose of defrauding the United States; or shall utter or pub- 
 lish as true, or cause to be uttered or published as true, or have in his possession 
 with the intent to utter or publish as true, any such false, forged, altered, or 
 counterfeited bond, bid, proposal, contract, guarantee, security, official bond, 
 public record, affidavit, or other writing, for the purpose of defrauding the 
 United States, knowing the same to be false, forged, altered, or counterfeited; 
 or shall transmit to, or present at, or cause or procure to be transmitted to, 
 or presented at, the office of any officer of the United States, any such false, 
 forged, altered, or counterfeited bond, bid, proposal, contract, guarantee, 
 security, or official bond, public record, affidavit, or other writing, knowing 
 the same to be false, forged, altered, or counterfeited, for the purpose of 
 defrauding the United States, shall be fined not more than one thousand dol- 
 lars, or imprisoned not more than ten years, or both. — (35 Stat., 1094; sees. 
 5418, 5479, R. S.) 
 
 Forging or altering certificates of discharge from the navy, or having same in possession; 
 See act of March 4, 1917 (39 Stat., 1182). 
 
 Sec. 29. [Forging deeds, powers of attorney, receipts, or other 
 WRITINGS.] Whoever shall falsely make, alter, forge, or counterfeit, or cause 
 or procure to be falsely made, altered, forged, or counterfeited, or willingly 
 aid or assist in the false making, altering, forging, or counterfeiting, any deed, 
 power of attorney, order, certificate, receipt, contract, or other writing, for 
 the purpose of obtaining or receiving or of enabling any other person, either 
 directly or indirectly, to obtain or receive from the United States, or any of 
 their officers or agents, any sum of money; or whoever shall utter or publish 
 as true, or cause to be uttered or published as true, any such false, forged, 
 altered, or counterfeited deed, power of attorney, order, certificate, receipt, 
 contract, or other writing with intent to defraud the United States, knowing 
 
 1322 
 
Criminal Code. Pt. 3. STATUTES AT LARGE. Mar. 4, 1909. 
 
 the same to be false, altered, forged, or counterfeited; or whoever shall trans- 
 mit to, or present at, or cause or procure to be transmitted to, or presented at, 
 any office or officer of the Government of the United States, any deed, power of 
 attorney, order, certificate, receipt, contract, or other writing, in support of, 
 or in relation to, any account or claim, with intent to defraud the United States, 
 knowing the same to be false, altered, forged, or counterfeited, shall be fined 
 not more than one thousand dollars and imprisoned not more than ten years. — 
 (35 Stat., 1094; sec. 5421, R. S.) * 
 
 Sec. 30. [Having forged papers in possession.] Whoever, knowingl}^ and 
 with intent to defraud the United States, shall have in his possession any false, 
 altered, forged, or counterfeited deed, power of attorney, order, certificate, 
 receipt, contract, or other writing, for the purpose of enabling another to obtain 
 from the United States, or from any officer or agent thereof, any sum of money, 
 shall be fined not more than five hundred dollars or imprisoned not more than 
 five years, or both.— (35 Stat., 1094; sec. 5422, R. S.) 
 
 Sec. 31. [Officer making false acknowledgments.] Whoever, being 
 an officer authorized to administer oaths or to take and certify acknowledg- 
 ments, shall knowingly make any false acJvnowledgment, certificate, or state- 
 ment concerning the appearance before him, or the taking of an oath or 
 affirmation by any person with respect to any proposal, contract, bond, under- 
 taking, or other matter submitted to, made with, or taken on behalf of the 
 United States, and concerning which an oath or affirmation is required by law 
 or regulation made in pursuance of law, or with respect to the financial standing 
 of any principal, surety, or other party to any such proposal, contract, bond, 
 undertaking, or other instrument, shall be fined not more than two thousand 
 dollars or imprisoned not more than two years, or both. — (35 Stat., 1094-1095.) 
 
 See note to section 183, Revised Statutes. 
 
 Sec. 32. [Falsely pretending to be officer, etc.] Whoever, with 
 intent to defraud either the United States or any person, shall falsely assume 
 or pretend to be an officer or employee acting under the authority of the 
 United States, or any department, or any officer of the Government thereof, 
 and shall take upon himself to act as such, or shall in such pretended character 
 demand or obtain from any person or from the United States, or any depart- 
 ment, or any officer of the Government thereof, any mone}^, paper, document, 
 or other valuable thing, shall be fined not more than one thousand dollars or 
 imprisoned not more tlian three years, or both. — (35 Stat., 1095; sec. 5438, 
 R. S.) 
 
 See act of June 3, 1916, section 125 (39 Stat., 216), as to unauthorized wearing of uniform 
 of Navy or Marine Corps, etc. 
 
 Sec. 34. [False demand for wages, etc.] Whoever shall knowingly or 
 fraudulently demand or endeavor to obtain any share or sum in the public 
 stocks of the United States, or to have any part thereof transferred, assigned, 
 sold, or conveyed, or to have any annuity, dividend, pension, prize money, 
 wages, or other debt due from the United States, or any part thereof, received, 
 or paid by virtue of any false, forged, or counterfeited power of attorney, 
 authority, or instrument shall be fined not more than five thousand dollars and 
 imprisoned not more than ten years. — (35 Stat., 1095; sec. 5436, R. S.) 
 
 54641 °— 22 84 1 323 
 
Mar. 4, 1909. Pt. 3. STATUTES AT LARGE. Criminal Code. 
 
 Sec. 35. [Fraudulent claims; larceny; conspiracy; false receipts; 
 PURCHASE OF NAVAL CLOTinxG, ETC.] Wliocver shall make or cause to be 
 made or present or cause to be presented, for payment or approval, to or b}^ 
 any person or ollicer in tlie civil, military, or naval service of the United States, 
 or any department thereof, or any corporation in which the United States of 
 America is a stockliolder, any claim upon or against the Government of the 
 United States, or any department or officer thereof, or any corporation in 
 which the United States of America is a stockholder, knowing such claim to be 
 false, fictitious, or fraudulent; or whoever, for the purpose of obtaining or 
 aiding to obtain the payment or approval of such claim, or for the purpose and 
 with the intent of cheating and swindling or defrauding the Government of 
 the United States, or any department thereof, or any corporation in which the 
 United States of America is a stockholder, shall knowingly and willfully falsify 
 or conceal or cover up by any trick, scheme, or device a material fact, or make 
 or cause to be made any false or fraudulent statements or representations, or 
 make or use or cause to be made or used any false bill, receipt, voucher, roll, 
 account, claim, certificate, affidavit, or deposition, knowing the same to con- 
 tain any fraudulent or fictitious statement or entry; or whoever shall take 
 and carry away or take for his own use, or for the use of another, with intent 
 to steal or purloin, any personal property of the United States, or any branch 
 or department thereof, or any corporation in which the United States of America 
 is a stockliolder; or whoever shall enter into any agreement, combination, or 
 conspiracy to defraud the Government of the United States, or any department 
 or officer thereof, or any corporation in which the United States of America 
 is a stockholder, by obtaining or aiding to obtain the payment or allowance of 
 any false or fraudulent claim ; and whoever, having charge, possession, custody, 
 or control of any money or other public property used or to be used in the 
 military or naval service, with intent to defraud the United States, or any 
 department thereof, or any corporation in which the United States of America 
 is a stockholder, or willfully to conceal such money or other property, shall 
 deliver or cause to be delivered to any person having authority to receive the 
 same any amount of such money or other property less than that for which 
 he received a certificate or took a receipt ; or whoever, being authorized to make 
 or deliver any certificate, voucher, receipt, or other paper certifying the receipt 
 of arms, ammunition, provisions, clothing, or other property so used or to be 
 used, shall make or deliver the same to any other person without a full knowledge 
 of the truth of the facts stated therein and with intent to defraud the United 
 States, or any department thereof, or any corporation in which the United 
 States of America is a stockholder, shall be fined not more than $10,000 or 
 imprisoned not more than ten years, or both. And whoever shall purchase, 
 or receive in pledge, from any person any arms, equipment, ammunition, 
 clothing, military stores, or other property furnished by the United States, 
 under a clothing allowance or otherwise, to any soldier, sailor, officer, cadet, 
 or midshipman in the military or naval service of the United States or of the 
 National Guard or Naval Militia, or to any person accompanying, serving, or 
 retained with the land or naval forces and subject to military or naval law, 
 having knowledge or reason to believe that the property has been taken from 
 the possession of the United States or furnished by the United States under 
 
 1324 
 
Criminal Code. Ft. 3. STATUTES AT LARGE. Mar. 4, 1909. 
 
 such allowance, shall be fined not more than $500 or imprisoned not more than 
 
 two years, or both.— (35 Stat., 1095-1096; 40 Stat., 1015-1016; sec. 5438, 
 
 R. S.; 35 Stat., 555-556.) 
 
 See section 1624, ReAdsed Statutes, article 14; 
 see also section 3748, Revised Statutes; 
 and see section 46 of this act, set forth 
 below. 
 
 This section was expressly amended and re- 
 enacted to read as above bv act of October 
 23, 1918 (40 Stat., 101-5-1016.) 
 
 Sec. 36. [Embezzlixg, etc., arms, stores, etc.] Whoever shall steal, 
 
 embezzle, or knowingly apply to his own use, or unlawfully sell, convey, or 
 
 dispose of, any ordnance, arms, ammunition, clothing, subsistence, stores, 
 
 money, or other property of the United States, furnished or to be used for the 
 
 military or naval service, shall be punished as prescribed in the preceding 
 
 section.— (35 Stat., 1096; sec. 5439, R. S.) 
 
 See section 1624, Re\'ised Statutes, article 14; . statute, for uncertainty as to the punishment 
 
 and see section 47 of this act, set forth j prescribed; the "preceding section" to which 
 
 below. it refers prescribing different punishments for 
 
 Section held inoperative. — Section 36 different offenses therein prescribed. (Holmes 
 
 of the Criminal Code is inoperative as a criminal v. U. S., 267 Fed. Rep., 529.) 
 
 Sec. 37. [Coxspiracy to comaht offense against United States.] 
 If two or more persons conspire either to commit any offense against the United 
 States, or to defraud the United States in any manner or for any purpose, and 
 one or more of such parties do any act to effect the object of the conspiracy, 
 each of the parties to such conspiracy shall be fined not more than ten thousand 
 dollars, or imprisoned not more than two years, or both. — (35 Stat., 1096; sec. 
 
 5440, R. S.; 21 Stat., 4.) 
 
 This section was extended for certain purposes to the Philippine Islands and the Canal 
 Zone by act of June 15, 1917 (40 Stat., 231 >. 
 
 Sec. 38. [Fraudulent interference with disposition of prize, etc.] 
 Whoever shall willfully do, or aid or advise in the doing, of any act relating to 
 the bringing in, custody, preservation, sale, or other disposition of any property 
 captured as prize, or relating to any documents or papers connected with the 
 propert}^, or to any deposition or other document or paper connected with the 
 proceedings, with intent to defraud, delay, or injure the United States or any 
 captor or claimant of such property, shall be fined not more than ten thousand 
 dollars, or imprisoned not more than five years, or both. — (35 Stat., 1096; sec. 
 
 5441, R. S.) 
 
 See section 1624, Revised Statutes, articles 16-17; See also sections 4613-4652, Revised 
 Statutes. 
 
 Sec. 39. [Bribery of United States officer.] Whoever shall promise, 
 offer, or give, or cause or procure to be promised, offered, or given, any money 
 or other thing of value, or shall make or tender any contract, undertaking, 
 obligation, gratuity, or security for the payment of money, or for the delivery 
 or conveyance of anything of value, to any officer of the United States, or to 
 any person acting for or on behalf of the United States in any official function, 
 under or by authority of any department or office of the Government thereof, 
 or to any officer or person acting for or on behalf of either House of Congress, 
 or of any committee of either House or both Houses thereof, with intent to 
 influence his decision or action on any question, matter, cause, or proceeding 
 which may at any time be pending, or which may by law be brought before him 
 
 1325 
 
Mar. 4, 1900. Pt. S. STATUTES AT LARGE. Criminal Code. 
 
 in his official capacity, or in his phice of trust or profit, or with intent to influ- 
 ence him to commit or aid in committing, or to collude in, or allow, any fraud, 
 or make opportunity for the commission of any fraud, on the United States, 
 or to induce him to do or omit to do any act in violation of his lawful duty, 
 shall be fined not more than three times the amount of money or value of the 
 thing so offered, promised, given, made, or tendered, or caused or procured 
 to be so offered, promised, given, made, or tendered, and imprisoned not more 
 than three years. — (35 Stat., 1096; sec. 5451, R. S.) 
 
 Sec. 40. [Unauthorized use of official papers relating to claims.] 
 Wlioever shall take and carry away, without authority from the United States, 
 from the place where it has been filed, lodged, or deposited, or where it may for 
 the time being actually be kept by authority of the United States, any certifi- 
 cate, affidavit, deposition, written statement of facts, power of attorney, 
 receipt, voucher, assignment, or other document, record, file, or paper, prepared, 
 fitted, or intended to be used or presented in order to procure the payment of 
 money from or by the United States, or any officer or agent thereof, or the 
 allowance or payment of the whole or any part of any claim, account, or de- 
 mand against the United States, whether the same has or has not already been 
 so used or presented, and whether such claim, account, or demand, or any part 
 thereof, has or has not already been allowed or paid ; or whoever shall present, 
 use, or attempt to use, any such document, record, file, or paper so taken and 
 carried away in order to procure the payment of any money from or by the 
 United States, or any officer or agent thereof, or the allowance or payment of the 
 whole or any part of any claim, account, or demand against the United States, 
 shall be fined not more than five thousand dollars or imprisoned not more 
 than ten years, or both. — (35 Stat., 1096-1097; sec. 5454, R. S.) 
 
 See sections 188, 190, and 418, Revised Statutes, and notes thereto; see also sections 109 
 and 128 of this act, set forth below. 
 
 Sec. 41. [Persons interested not to act as Government agents.] 
 No officer or agent of any corporation, joint-stock company, or association, and 
 no member or agent of any firm, or person directly or indirectly interested in 
 the pecuniary profits or contracts of such corporation, joint-stock company, 
 association, or firm, shall be employed or shall act as an officer or agent of the 
 United States for the transaction of business with such corporation, joint-stock 
 company, association, or firm. Whoever shall violate the provision of this 
 section shall be ffiied not more than two thousand dollars and imprisoned not 
 more than two years. — (35 Stat., 1097; sec. 1783, R. S.) 
 
 See section 3745, Revised Statutes; see also act of June 10, 1896 (29 Stat., 361); and see note 
 to section 1487, Revised Statutes, under "Hire of quarters." 
 
 Sec. 42. [Enticing desertion from Naa'y, etc.; assisting deserters.] 
 Whoever shall entice or procure, or attempt or endeavor to entice or procure, 
 any soldier in the military service, or any seaman or other person in the naval 
 service of the United States, or who has been recruited for such service, to 
 desert therefrom, or shall aid any such soldier, seaman, or other person in 
 deserting or in attempting to desert from such service; or whoever shall harbor, 
 conceal, protect, or assist any such soldier, seaman, or other person who may 
 have deserted from such service, knowing him to have deserted therefrom, or 
 
 1326 
 
Criminal Code. 
 
 PL 3. STATUTES AT LARGE. 
 
 Mar. 4, 1909. 
 
 shall refuse to give up and deliver such soldier, seaman, or other person on the 
 demand of any officer authorized to receive him, shall be imprisoned not more 
 than three years and fined not more than two thousand dollars. — (35 Stat., 
 f097; sees. 1553, 5455, R. S.) 
 
 See section 1624, Revised Statutes, article 8; see also note to section 1553, Revised Statutes. 
 
 Sec. 43. [Enticing workmen from arsenals, etc.] Whoever shall 
 procure or entice any artificer or workman retained or employed in any arsenal 
 or armory to depart from the same during the continuance of his engagement, 
 or to avoid or break his contract with the United States ; or whoever, after due 
 notice of the engagement of such workman or artificer, during the continuance 
 of such engagement, shall retain, hire, or in anywise employ, harbor, or conceal 
 such artificer or workman, shall be fined not more than fifty dollars or imprisoned 
 not more than three months, or both. — (35 Stat., 1097; sec. 1668, R. S.) 
 
 Sec. 44. [Injuries to fortifications, etc. ; defensive sea areas.] Who- 
 ever shall willfully trespass upon, injure, or destroy any of the works or prop- 
 erty or material of any submarine mine or torpedo or fortification or harbor- 
 defense system o\vned or constructed or in process of construction by the 
 United States, or shall willfully interfere with the operation or use of any such 
 submarine mine, torpedo, fortification, or harbor-defense system, or shall 
 knowingly, willfully, or wantonly violate any duly authorized and promulgated 
 order or regulation of the President governing persons or vessels within the 
 limits of defensive sea areas, which defensive sea areas are hereby authorized to 
 be established by order of the President from time to time as may be neces- 
 sary in his discretion for purposes of national defense, shall be punished on 
 conviction thereof in a district or circuit court of appeals of the United States 
 for the district or circuit in which the offense is committed, or into which the 
 offender is first brought, by a fine of not more than $5,000, or by imprisonment 
 for a term not exceeding five years, or by both, in the discretion of the court. — 
 (35 Stat., 1097; 30 Stat., 717; 39 Stat., 1194; 40 Stat., 89.) 
 
 This section was expressly amended and reen- 
 acted to read as above by the naval appro- 
 priation act of March 4, 1917 (39 Stat., 
 1194). It was further amended by the 
 following section in act of May 22, 1917 
 (40 Stat., 89, chap. 20): 
 
 "Sec. 19. That section forty-four of the 
 Act entitled ' An Act to codify, revise, and 
 amend the penal laws of the United States, ' 
 approved March fourth, nineteen hundred 
 and nine, as amended by an Act entitled 
 'An Act making appropriation for the 
 naval service for the fiscal year ending 
 June thirtieth, nineteen hundred and 
 eighteen, and for other purposes, ' approved 
 
 Sec. 45. [Unlawfully entering military reservation, etc.] Who- 
 ever shall go upon any military reservation, army post, fort, or arsenal, for any 
 purpose prohibited by law or military regulation made in pursuance of law, or 
 whoever shall reenter or be found within any such reservation, post, fort, or 
 arsenal, after having been removed therefrom or ordered not to reenter by any 
 officer or person in command or charge thereof, shall be fined not more than five 
 hundred dollars, or imprisoned not more' than six months, or both. — (35 Stat., 
 1097.) 
 
 1327 
 
 March fourth, nineteen hundred and seven- 
 teen, be, and is hereby, amended by add- 
 ing the follo\ving to said section: 
 
 " 'Provided, That offenses hereunder 
 committed within the Canal Zone or within 
 any defensive sea areas which the Presi- 
 dent is authorized to estabUsh by said sec- 
 tion, shall be cognizable in the District 
 Court of the ('anal Zone, and jurisdiction 
 is hereby conferred upon said court to 
 hear and determine all such cases arising 
 under said section and to impose the pen- 
 alties therein provided for the violation 
 of any of the provisions of said section.' " 
 
Mar. 4, 1909. 
 
 Pt. 3. STATUTES AT LARGE. 
 
 Criminal Code. 
 
 See section 1G24, Revised Statutes, article 5; see also acts of June 15, 1917 (40 Stat., 217, 
 et seq.), and April 20, 1918 (40 Stat., 533-534). 
 
 Sec. 46. [Robbery or larceny of personal property of United 
 States.] Wlioever shall rob another of any kind or description of personal 
 property belongnig to the United States, or shall feloniously take and carry 
 away the same, shall be fined not more than five thousand dollars, or impris- 
 oned not more than ten years, or both. — (35 Stat., 1097; sec. 5456, R. S.) 
 
 See section 35 of this act, set fortli above. 
 
 Sec. 47. [Embezzling, stealing, etc., public money or property.] 
 Whoever shall embezzle, steal, or purloin any money, property, record, voucher, 
 or valuable thing whatever, of the moneys, goods, chattels, records, or property 
 of the United States, shall be fined not more than five thousand dollars, or 
 imprisoned not more than five years, or both. — (35 Stat., 1097; 18 Stat., 479.) 
 
 See sections 35, 36, and 46 of this act, set forth above; and see sections 86-92 of this act, set 
 forth below. 
 
 Sec. 48. [Receiving, etc., stolen public property.] Whoever shall 
 receive, conceal, or aid in concealing, or shall have or retain in his possession 
 with intent to convert to his own use or gain, any money, property, record, 
 voucher, or valuable thing whatever, of the moneys, goods, chattels, records, 
 or property of the United States, which has theretofore been embezzled, stolen 
 or purloined by any other person, knowing the same to have been so embezzled, 
 stolen, or purloined, shall be fined not more than five thousand dollars, or im- 
 prisoned not more than five years, or both; and such person may be tried 
 either before or after the conviction of the principal offender. — (35 Stat., 1098; 
 18 Stat., 479.) 
 
 Sec. 79. [Falsely claiming citizenship.] Whoever shall knowingly use 
 any certificate of naturalization heretofore or which hereafter may be granted 
 by any court, which has been or may be procured through fraud or by false 
 evidence, or which has been or may hereafter be issued by the clerk or any 
 other officer of the court without any appearance and hearing of the applicant 
 in court and without lawful authority; or whoever, for any fraudulent purpose 
 whatever, shall falsely represent himself to be a citizen of the United States 
 without having been duly admitted to citizenship, shall be fined not more than 
 one thousand dollars, or imprisoned not more than two years, or both. — (35 
 Stat., 1103; sec. 5428, R. S.) 
 
 See note to section 1569, Revised Statutes, 
 under "9. Longevity pay. General Order 
 No. 34," as to additional pay allowed en- 
 listed men of the Navy who are citizens of 
 
 the United States; see also note to section 
 236, Revised Statutes, under V, (A), 
 "Citizenship of enlisted men;" and note 
 to Constitution, fourteenth amendment. 
 
 Chapter Five. 
 
 OFFENSES relating TO OFFICIAL DUTIES. 
 
 Sec. 
 
 85. Officer, etc., of the United States guilty 
 
 of extortion. 
 
 86. Receipting for larger sums than are paid. 
 
 87. Disbursing officers unlawfully converting, 
 
 etc., public money. 
 
 88. Failure of Treasurer, etc., to safely keep 
 
 pubUc money. 
 
 Sec. 
 
 89. Custodian of public money faiUng to safely 
 
 keep, etc. 
 
 90. Failure of officer to render accounts, etc. 
 
 91. Failure to deposit as required. 
 
 92. Provisions of the five preceding sections, 
 
 to whom applicable. 
 
 93. Record evidence of embezzlement. 
 
 1328 
 
Criminal Code. Pt. S. STATUTES AT LARGE. Mar. 4, 1900, 
 
 Sec. 
 
 114. Member of Congress not to be interested 
 
 in contract. 
 
 115. Officer making contracts with Member of 
 
 Congress. 
 
 116. Contracts to which two preceding sections 
 
 do not apply. 
 
 117. United States officer accepting bribe. 
 
 118. Political contributions not to be solicited 
 
 by certain officers. 
 
 119. Political contributions not to be received 
 
 in pubUc offices. 
 
 120. Immunity from official proscription. 
 
 121. Giving money to officials for political pur- 
 
 poses prohibited. 
 
 122. Penalty for violating provisions of four 
 
 preceding sections. 
 
 Sec. 
 
 94. Prima facie evidence. 
 
 95. Evidence of conversion. 
 
 97. Embezzlement by internal-revenue of- 
 
 ficer, etc. [Offense not otherwise pun- 
 ishable.] 
 
 98. Officer contracting beyond specific ap- 
 
 propriation. 
 
 101. Failure to make returns or reports. 
 
 103. Collecting and disbursing officers forbid- 
 den to trade in public property. 
 
 106. Other false certificates. 
 
 109. Officer not to be interested in claims 
 against the United States. 
 
 112. Member of Congress [or other officers] 
 
 taking consideration for procuring con- 
 tract, office, etc.; offering Member con- 
 sideration, etc. 
 
 113. Member of Congress, etc., taking compen- 
 
 sation in matters to which United States 
 is a party. 
 
 Sec. 85. [Extortion by officials.] Every officer, clerk, agent, or em- 
 ployee of the United States, and every person representing himself to be or 
 assuming to act as such officer, clerk, agent, or employee, who, under color of 
 his office, clerkship, agency, or employment, or under color of his pretended or 
 assumed office, clerkship, agency, or employment, is guilty of extortion, and 
 every person who shall attempt any act which if performed would make him 
 guilty of extortion, shall be fined not more than five hundred dollars, or impris- 
 oned not more than one year, or both. — (35 Stat., 1104; sec. 5481, R. S.; 34 
 Stat., 546.) 
 
 Sec. 86. [Receipting for larger sums than are paid.] Whoever, be- 
 ing an officer, clerk, agent, employee, or other person charged with the pay- 
 ment of any appropriation made by Congress, shall pay to any clerk or other 
 employee of the United States a sum less than that provided by law, and re- 
 quire such employee to receipt or give a voucher for an amount greater than 
 that actually paid to and received by him, is guilty of embezzlement, and shall 
 be fined in double the amount so withheld from any employee of the Govern- 
 ment and imprisoned not more than two years. — (35 Stat., 1105; sec. 5483, 
 R. S.) 
 
 See section 1624, Revised Statutes, article 14. 
 
 Sec. 87. [Disbursing officers unlawfully using, etc., public money.] 
 Whoever, being a disbursing officer of the United States, or a person acting as 
 such, shall in any manner convert to his own use, or loan with or without in- 
 terest, or deposit in any place or in any manner, except as authorized by law, 
 any public money intrusted to him; or shall, for any purpose not prescribed by 
 law, withdraw from the Treasurer or any assistant treasurer, or any authorized 
 depositary, or transfer, or apply, any portion of the public money intrusted to 
 him, shall be deemed guilty of an embezzlement of the money so converted, 
 loaned, deposited, withdrawn, transferred, or applied, and shall be fined not 
 more than the amount embezzled, or imprisoned not more than ten years, or 
 both.— (35 Stat., 1105; sec. 5488, R. S.) 
 
 See section 1624, Reiised Statutes, article 14; see also section 47 of this act, set forth above; 
 and see section 92, below. 
 
 Sec. 88. [Failure of depositaries to safely keep public deposits.] 
 
 If the Treasurer of the United States or any assistant treasurer, or any public 
 
 1320 
 
Mar. 4, 1909. Pt. S. STATUTES AT LARGE. Criminal Code. 
 
 depositary, fails safely to keep all moneys deposited by any disbursing ofTicer 
 or disbursing agent, as well as all moneys deposited by any receiver, collector, 
 or other person having money of the United States, he shall be deemed guilty 
 of embezzlement of the moneys not so safely kept, and shall be fined in a sum 
 equal to the amount of money so embezzled and imprisoned not more than ten 
 years.— (35 Stat., 1105; sec. 5489, R. S.) 
 
 See section 1624, Revised Statutes, article 14; see also section 92 of this act, set forth below. 
 
 Sec. 89. [Custodiax failing to keep, etc., public moneys.] Every 
 officer or other person charged by any act of Congress with the safe-keeping of 
 the public moneys who shall loan, use, or convert to his o"wti use, or shall de- 
 posit in any bank or exchange for other funds, except as specially allowed by 
 law, any portion of the public moneys intrusted to him for safe-keeping, shall 
 be guilty of embezzlement of the money so loaned, used, converted, deposited, 
 or exchanged, and shall be fined in a sum equal to the amount of money so 
 embezzled and imprisoned not more than ten years. — (35 Stat., 1105; sec. 
 5490, R. S.) 
 
 See section 1624, Revised Statutes, article 14; see also section 92 of this act, set forth below. 
 
 Sec. 90. [Failure of officer to render accounts.] Every officer or 
 agent of the United States who, having received public money which he is not 
 authorized to retain as salary, pay, or emolument, fails to render his accounts 
 for the same as provided by law shall be deemed guilty of embezzlement, 
 and shall be fined in a sum equal to the amount of the money embezzled and 
 imprisoned not more than ten years. — (35 Stat., 1105; sec. 5491, R. S.) 
 
 See section 1624, Revised Statutes, article 14; 
 see also section 92 of this act, set forth 
 below; and see notes to sections 176 and 
 1376, Re^^8ed Statutes. 
 
 Punishment for making false entries in ac- 
 counts, rendering false returns, etc., is pre- 
 
 scribed by act of March 4, 1911 (36 Stat , 
 1355). 
 Time for rendering public accounts: See act of 
 July 31, 1894, section 12 (28 Stat., 209); 
 and see note to section 3622, Revised 
 Statutes. 
 
 Sec. 91. [Failure to deposit as required.] Whoever, having money 
 of the United States in his possession or under his control, shall fail to deposit 
 it with the Treasurer, or some assistant treasurer, or some public depositary 
 of the United States, when required so to do by the Secretary of the Treasury, 
 or the head of any other proper department, or by the accounting officers of the 
 Treasury, shall be deemed guilty of embezzlement thereof, and shall be fined 
 in a sum equal to the amount of money embezzled and imprisoned not more 
 than ten years. — (35 Stat., 1105; sec. 5492, R, S.) 
 
 See section 1624, Revised Statutes, article 14. 
 
 Sec. 92. [Five preceding sections construed.] The provisions of the 
 five preceding sections shall be construed to apply to all persons charged with 
 the safe-keeping, transfer, or disbursement of the public money, whether such 
 persons be indicted as receivers or depositaries of the same. — (35 Stat., 1105.) 
 
 See section 1624, Revised Statutes, article 14. 
 
 Sec. 93. [Record evidence of embezzlement.] Upon the trial of any 
 indictment against any person for embezzling public money under any provision 
 of the six preceding sections, it shall be sufficient evidence, prima facie, for the 
 purpose of showing a balance against such person, to produce a transcript 
 
 1380 
 
Criminal Code. Pt. 3. STATUTES AT LARGE. Mar. 4, 1909. 
 
 from the books and proceedings of the Treasury, as required in civil cases, 
 under the provisions for the settlement of accounts between the United States 
 and receivers of public money. — (35 Stat., 1105; sec. 5494, R. S.) 
 
 Sec. 94. [Prima facie evidence.] The refusal of any person, whether 
 in or out of ofhce, charged with the safe-keeping, transfer, or disbursement of 
 the public money to pay any draft, order, or warrant, drawn upon him by the 
 proper accounting officer of the Treasury, for any public money in his hands 
 belonging to the United States, no matter in what capacity the same may 
 have been received, or may be held, or to transfer or disburse any such money, 
 promptly, upon the legal requirement of any authorized officer, shall be deemed, 
 upon the trial of any indictment against such person for embezzlement, prima 
 facie evidence of such embezzlement. — (35 Stat., 1106; sec. 5495, R. S.) 
 
 Sec. 95. [Evidence of conversion.] If any officer charged with the 
 disbursement of the public moneys accepts, receives, or transmits to the Treas- 
 ury Department to be allowed in his favor any receipt or voucher from a creditor 
 of the United States without having paid to such creditor in such funds as 
 the officer received for disbursement, or in such funds as he may be authorized 
 by law to take in exchange, the full amount specified in such receipt or voucher, 
 every such act is an act of conversion by such officer to his own use of the 
 amount specified in such receipt or voucher. — (35 Stat., 1106; sec. 5496, R. wS.) 
 
 Sec. 97. [Embezzlement; offenses not otherwise punishable.] Any 
 officer connected with, or employed in, the Internal-Revenue Service of the 
 United States, and any assistant of such officer, who sliall embezzle or wrong- 
 fully convert to his own use any money or other property of the United States, 
 and any officer of the United States, or any assistant of such officer, who shall 
 embezzle or wrongfully convert to his own use any money or property which 
 may have come into his possession or under his control in the execution of 
 such office or employment, or under color or claim of authority as such officer 
 or assistant, whether the same shall be the money or property of the United 
 States or of some other person or party, shall, where the offense is not other- 
 wise punishable by some statute of the United States, be fined not more than 
 the value of the, money and property thus embezzled or converted, or imprisoned 
 not more than ten years, or both. — (35 Stat., 1106; 30 Stat., 280.) 
 
 See section 1624, Revised Statutes, article 22. 
 
 Sec. 98. [Officer contracting beyond specific appropriation,] Who- 
 ever, being an officer of the United States, shall knowingly contract for 
 the erection, repair, or furnishing of any public building, or for any public 
 improvement, to pay a larger amount than the specific sum appropriated for 
 such purpose, shall be fined not more than two thousand dollars and imprisoned 
 not more than two years. — (35 Stat., 1106; sec. 5503, R. S.) 
 See section 3733, Revised Statutes. 
 
 Sec. 101. [Failure to make reports at reql^red times.] Every 
 officer who neglects or refuses to make any return or report which he is required 
 to make at stated times by any act of Congress or regulation of the Department 
 of the Treasury, other than his accounts, within the time prescribed by such 
 act or regulation, shall be fined not more than one thousand dollars. — (35 Stat., 
 1107; sec. 1780, R.S.) 
 
 See sections 195, 196, and 429, Revised Statutes, and notes thereto. 
 
 1331 
 
Mar. 4, 1909. /'/. S. STATUTES AT LARGE. Criminal Code. 
 
 Sec. 103. [Tkading in public property by disbursing officer.] 
 WhooTor, boino; an ofliror of the United States concerned in the collection or 
 tlie dishursonient of the revenues thereof, shall carry on an}'^ trade or business 
 in tlie funds or debts of the United States, or of any State, or in any public 
 property of either, shall })e fined not more than three thousand dollars, or 
 imprisoned not more than one year, or both, and be removed from office, and 
 thereafter be incapable of holding any office under the United States. — 
 (35 Stat., 1107; sees. 1788, 1789, R. S.) 
 
 Sec. 106. [False certificates; not otherwise punishable.] Who- 
 ever, beino; a public officer or other person authorized by any law of the United 
 States to make or give a certificate or other writing, shall knowingly make 
 and deliver as true such a certificate or writing, containing any statement 
 which he knows to be false, in a case where the punishment thereof is not 
 elsewhere expressly provided by law, shall be fined not more than five hundred 
 dollars or imprisoned not more than one year, or both. — (35 Stat., 1107.) 
 
 See section 1624, ReAaeed Statutes, articles 8 
 and 14; see also act of March 4, 1911 
 
 (36 Stat., 1355); and see sections 31, 35, 
 and 86 of this act, set forth above. 
 
 Sec. 109. [Officers interested in claims against the United States.] 
 Whoever, being an officer of the United States, or a person holding any place 
 of trust or profit, or discharging any official function under, or in connection 
 with, any Executive Department of the Government of the United States, or 
 under the Senate or House of Representatives of the United States, shall act 
 as an agent or attorney for prosecuting any claim against the United States, or 
 in any manner, or by any means, otherwise than in discharge of his proper 
 official duties, shall aid or assist in the prosecution or support of any such claim, 
 or receive any gratuity, or any share of or interest in any claim from any claim- 
 ant against the United States, with intent to aid or assist, or in consideration 
 of having aided or assisted, in the prosecution of such claim, shall be fined not 
 more than five thousand dollars or imprisoned not more than one year, or 
 both.— (35 Stat., 1107; sec. 5498, R. S.) 
 
 ,See section 113 of this act, set forth below; and 
 see note to section 190, Revised Statutes, as 
 to status of retired officers; see also note to 
 section 418, Revised Statutes, under "Rec- 
 ords of Department," and section 40 of 
 this act, set forth above. 
 
 By act of March 1, 1901 (31 Stat., 844-845), it 
 waa provided that members of the National 
 
 Guard of the District of Coliimbia who 
 receive compensation for their services as 
 such shall not be held or construed to be 
 officers of the United States, or persons 
 holding g,ny place of trust or profit, etc., 
 within the provision of section 5498, Re- 
 vised Statutes, now embodied in section 109 
 of this act. 
 
 Sec. 112. [Member of Congress, etc., taking Consideration for pro- 
 curing CONTRACT, ETC.] Whoever, being elected or appointed a Member of or 
 Delegate to Congress, or a Resident Commissioner, shall, after his election 
 or appointment and either before or after he has qualified, and during his con- 
 tinuance in office, or being an officer or agent of the United States, shall directly 
 or indirectly take, receive, or agree to receive, from any person, any money, 
 property, or other valuable consideration whatever, for procuring, or aiding to 
 procure, any contract, appointive office, or place, from the United States or from 
 any officer or department thereof, for any person whatever, or for giving any 
 such contract, appointive office, or place to any person whomsoever; or whoever, 
 directly or indirectly, shall offer, or agree to give, or shall give, or bestow, any 
 
 1332 
 
Criminal Code. Pt.S. STATUTES AT LARGE. Mar. 4, 1909. 
 
 money, property, or other valuable consideration whatever, for the procuring, 
 or aiding to procure, any such contract, appointive office, or place, shall be fined 
 not more than ten thousand dollars and imprisoned not more than two years; 
 and shall, moreover, be disqualified from holding any office of honor, profit, or 
 trust under the Government of the United States. Any such contract or agree- 
 ment may at the option of the President be declared void. — (35 Stat,, 1108- 
 1109; sec. 1781, R. S.) 
 
 See section 3741, R. S.; and see act of June 10, 1896 (29 Stat., 361). 
 
 Sec. 113. [Member of Congress, etc., receiving pay for services 
 BEFORE COURTS-MARTIAL, BUREAUS, ETC.] Whoever, being elected or ap- 
 pointed a Senator, Member of or Delegate to Congress, or a Resident Com- 
 missioner, shall, after his election or appointment and either before or after he 
 has qualified, and during his contmuance in office, or being the head of a depart- 
 ment, or other officer or clerk in the employ of the United States, shall, directly or 
 indirectly, receive, or agree to receive, any compensation whatever for any serv- 
 ices rendered or to be rendered to any person, either by himself or another, in 
 relation to any proceeding, contract, claim, controversy, charge, accusation, 
 arrest, or other matter or thing in which the United States is a party or directly 
 or indirectly interested, before any department, court-martial, bureau, officer, or 
 any civil, military, or naval commission whatever, shall be fined not more than 
 ten thousand dollars and imprisoned not more than two years; and shall, more- 
 over, thereafter be incapable of holding any office of honor, trust, or profit 
 under the Government of the United States. — (35 Stat., 1109; sec. 1782, R. S.) 
 
 See note to section 190, Revised Statutes, as to status of retired officer. 
 
 Sec. 114. [Member of Congress interested in public contracts.] 
 Whoever, being elected or appointed a Member of or Delegate to Congress, or a 
 Resident Commissioner, shall, after his election or appointment and either 
 before or after he has qualified, and during his continuance in office, directly or 
 indirectly, himself, or by any other person in trust for him, or for his use or 
 benefit, or on his account, undertake, execute, hold, or enjoy, in whole or in part, 
 any contract or agreement, made or entered into in behalf of the United States by 
 any officer or person authorized to make contracts on its behalf, shall be fined 
 not more than three thousand dollars. All contracts or agreements made in 
 violation of this section shall be void; and whenever any sum of money is ad- 
 vanced by the United States, in consideration of any such contract or agreement, 
 it shall forthwith be repaid; and in case of failure or refusal to repay the same 
 when demanded by the proper officer of the department under whose authority 
 such contract or agreement shall have been made or entered into, suit shall at 
 once be brought against the persons so failing or refusing and his sureties, for 
 the recovery of the money so advanced. — (35 Stat., 1109; sec. 3739, R. S.) 
 
 See section 112 of this act, set forth above, and section 3741, Re\'ised Statutes. 
 
 Sec. 115. [Officer making contract with Member of Congress.] 
 Whoever, being an officer of the United States, shall on behalf of the United 
 States, directly or indirectly make or enter into any contract, bargain, or agree- 
 ment, in writing or otherwise, with any Member of or Delegate to Congress, or 
 any Resident Commissioner, after his election or appointment as such Member, 
 Delegate, or Resident Commissioner, and either before or after he has qualified, 
 
 1333 
 
Mar. 4, 1909. Pt. S. STATUTES AT LARGE. Criminal Code. 
 
 and (hiring; his continuance in office, shall be fined not more than three thousand 
 dollars.— (35 Stat., 1109; sec. 3742, R. S.) 
 See section 3741, Re^dsed Statutes. 
 
 Sec. 116. [Contracts; two preceding sections construed.] Nothing 
 contained in the two preceding sections shall extend, or be construed to extend, 
 to any contract or agreement made or entered into, or accepted, by any incor- 
 porated company, where such contract or agreement is made for the general 
 benefit of such incorporation or company; nor to the purchase or sale of bills of 
 exchange or other property by any Member of or Delegate to Congress, or Resi- 
 dent Commissioner, where the same are ready for delivery, and payment therefor 
 is made, at the time of making or entering into the contract or agreement. — 
 (35 Stat., 1109; sec. 3740, R. S.) 
 
 Sec. 117. [Official accepting bribe.] Whoever, being an officer of the 
 United States, or a person acting for or on behalf of the United States, in any 
 official capacity, under or by virtue of the authority of any department or office 
 of the Government thereof; or whoever, being an officer or person acting for or 
 on behalf of either House of Congress, or of any committee of either House, or 
 of both Houses thereof, shall ask, accept, or receive any money, or any con- 
 tract, promise, undertaking, obligation, gratuity, or security for the payment of 
 money, or for the delivery or conveyance of anything of value, with intent to 
 have his decision or action on any question, matter, cause, or proceeding which 
 may at any time be pending, or which may by law be brought before him in his 
 official capacity, or in his place of trust or profit, influenced thereby, shall be 
 fined not more than three times the amount of money or value of the thing so 
 asked, accepted, or received, and imprisoned not more than three years; and 
 shall, moreover, forfeit his office or place and thereafter be forever disqualified 
 from holding any office of honor, trust, or profit under the Government of the 
 United States.— (35 Stat., 1109-1110; sees. 5501, 5502, R. S.) 
 
 Sec. 118. [Political contributions solicited by officers.] No 
 Senator or Representative in, or Delegate or Resident Commissioner to Con- 
 gress, or Senator, Representative, Delegate, or Resident Commissioner elect, 
 or officer or employee of either House of Congress, and no executive, judicial, 
 military, or naval officer of the United States, and no clerk or employee of any 
 department, branch, or bureau of the executive, judicial, or military or naval 
 service of the United States, shall, directly or indirectly, solicit or receive, or be 
 in any manner concerned in soliciting or receiving, any assessment, subscription, 
 or contribution for any political purpose whatever, from any officer, clerk, or 
 employee of the United States, or any department, branch, or bureau thereof, 
 or from any person receiving any salary or compensation from moneys derived 
 from the Treasury of the United States.— (35 Stat., 1110; 22 Stat., 406.) 
 
 See section 1546, RcAdsed Statutes, and note thereto. 
 
 Sec. 119. [Political contributions solicited in public offices.] No 
 person shall, in any room or building occupied in the discharge of official duties 
 by any officer or employee of the United States mentioned in the preceding 
 section, or in any navy-yard, fort, or arsenal, solicit in any maimer whatever 
 or receive any contribution of money or other thing of value for any poUtical 
 purpose whatever.— (35 Stat., 1110; 22 Stat., 407.) 
 
 See section 1546, Revised Statutes, and note thereto. 
 
 1334 
 
Criminal Code. Ft. 3. STATUTES AT LARGE. Mar. 4, 1909. 
 
 Sec. 120. [Immunity from official proscription.] No officer or employee 
 of the United States mentioned in section one hundred and eighteen, shall 
 discharge, or promote, or degrade, or in any manner change the official rank 
 or compensation of any other officer or employee, or promise or threaten so to 
 do, for giving or withholding or neglecting to make any contribution of money 
 or other valuable thing for any political purpose. — (35 Stat., 1110; 22 Stat., 407.) 
 
 See section 1546, Revised Statutes, and note thereto. 
 
 Sec. 121. [Making political contributions to officials.] No officer, 
 clerk, or other person in the service of the United vStates shall, directly or indi- 
 rectly, give or hand over to any other officer, clerk, or person in the service of 
 the United States, or to any Senator or IViember of or Delegate to Congress, or 
 Resident Commissioner, any money or other valuable thing on account of or 
 to be applied to the promotion of any political object whatever. — (35 Stat., 
 1110; 22 Stat., 407.) 
 
 See section 1546, Re\ised Statutes, and note thereto. 
 
 Sec. 122. [Punishment; four preceding sections.] Whoever shall 
 violate any provision of the four preceding sections shall be fined not more than 
 five thousand dollars, or imprisoned not more than three years, or both. — (35 
 Stat., 1110; 22 Stat., 407.) 
 
 Chapter Six. 
 offenses against public justice. 
 
 Sec. 
 
 125. Perjury. 
 
 126. Subornation of perjury. 
 
 128. Destroj'ing, etc., public records. 
 
 129. Destroying records by officer in charge. 
 131. Bribery of a judge or judicial officer. 
 
 Sec. 
 
 133. Juror, referee, master, etc., or judicial 
 
 officer, etc., accepting bribe. 
 
 134. Witness accepting bribe. 
 
 145. Extortion by informer. 
 
 146. Misprision of felony. 
 
 Sec. 125. [Perjury defined.] Whoever, having taken an oath before a 
 competent tribunal, officer, or person, in any case in which a law of the United 
 States authorizes an oath to be administered, that he will testify, declare, depose, 
 or certify truly, or that any written testimony, declaration, deposition, or cer- 
 tfficate by him subscribed is true, shall willfully and contrary to such oath state 
 or subscribe any material matter which he does not believe to be true, is guilty 
 of perjury, and shall be fined not more than two thousand dollars and impris- 
 oned not more than five years. — -(35 Stat., 1111 ; sec. 5392, R. S.) 
 
 See sections 1023 and 1624, articles 14, 22, and 42, Revised Statutes. 
 
 Sec. 126. [Subornation of perjury.] Whoever shall procure another to 
 commit any perjury is guilty of subornation of perjury and punishable as in 
 the preceding section prescribed. — (35 Stat., 1111; sec. 5393, R. S.) 
 
 Sec. 128. [Destroying, etc., public records.] Whoever shall willfully 
 and unlawfully conceal, remove, mutilate, obliterate, or destroy, or attempt to 
 conceal, remove, mutilate, obliterate, or destroy, or, with intent to conceal, 
 remove, mutilate, obliterate, destroy, or steal, shall take and carry away any 
 record, proceeding, map, book, paper, document, or other thing, ffied or deposited 
 with any clerk or officer of any court of the United States, or in any public 
 office, or with any judicial or public officer of the United States, shall be fined 
 
 1335 
 
Mar. 4, 1909. Pt. S. STATUTES AT LARGE. Criminal Code. 
 
 not more than two thousand doHars, or imprisoned not more than three years, 
 
 or both.— (35 Stat., 1111-1112; sec. 5403, R. S.) 
 
 See section 40 of this act, set forth above; and see notes to section 418, Revised Statutes, and 
 act of February 1(J, 1889 (25 Stat., G72). 
 
 Sec. 129. [Destroying, etc., records by custodian.] Whoever, having 
 the custody of any record, proceeding, map, book, document, paper, or other 
 thing specified in the preceding section, shall willfully and unlawfully conceal, 
 remove, mutilate, obliterate, falsify, or destroy any such record, proceeding, 
 map, book, document, paper, or thing, shall be fined not more than two thou- 
 sand dollars, or imprisoned not more than three years, or both; and shall more- 
 over forfeit his office and be forever afterward disqualified from holding any 
 office under the Government of the United States. — (35 Stat., 1112; sec. 5408, 
 R. S.) 
 
 Sec. 131. [Bribery of judicial officer, etc.] Whoever, directly or 
 indirectly, shall give or offer, or cause to be given or offered, any money, prop- 
 erty, or value of any kind, or any promise or agreement therefor, or any other 
 bribe, to any judge, judicial officer, or other person authorized by any law of the 
 United States to hear or determine any question, matter, cause, proceeding, or 
 controversy, with intent to influence his action, vote, opinion, or decision 
 thereon, or because of any such action, vote, opinion, or decision, shall be fined 
 not more than twenty thousand dollars, or imprisoned not more than fifteen 
 years, or both; and shall forever be disqualified to hold any ofl&ce of honor, 
 trust, or profit under the United States. — (35 Stat., 1112; sec. 5449, R. S.) 
 
 Sec. 133. [Acceptance of bribe by officer.] Whoever, being a juror, 
 referee, arbitrator, appraiser, assessor, auditor, master, receiver. United States 
 commissioner, or other person authorized by any law of the United States to 
 hear or determine any question, matter, cause, controversy, or proceeding, 
 shall ask, receive, or agree to receive, any money, property, or value of any kind, 
 or any promise or agreement therefor, upon any agreement or understanding 
 that his vote, opinion, action, judgment, or decision shall be influenced thereby, 
 or because of any such vote, opinion, action, judgment, or decision, shall be 
 fined not more than two thousand dollars, or imprisoned not more than two 
 years, or both. — (35 Stat., 1112.) 
 
 Sec. 134. [Witness accepting bribe.] Whoever, being, or about to be, a 
 witness upon a trial, hearing, or other proceeding, before any court or any officer 
 authorized by the laws of the United States to hear evidence or take testimony, 
 shall receive, or agree or offer to receive, a bribe, upon any agreement or under- 
 standing that his testimony shall be influenced thereby, or that he will absent 
 himself from the trial, hearing, or other proceeding, or because of such testi- 
 mony, or such absence, shall be fined not more than two thousand dollars, or 
 imprisoned not more than two years, or both. — (35 Stat., 1113.) 
 
 Sec. 145. [Extortion by informer.] Whoever shall, under a threat of 
 informing, or as a consideration for not informing, against any violation of any 
 law of the United States, demand or receive any money or other valuable thing, 
 shall be fined not more than two thousand dollars, or imprisoned not more than 
 one year, or both. — (35 Stat., 1114; sec. 5484, R. S.) 
 
 Sec. 146. [Misprision of felony.] Whoever, having knowledge of the 
 actual commission of the crime of murder or other felony cognizable by the 
 
 1336 
 
Criminal Code. 
 
 rt. 3. STATUTES AT LARGE. 
 
 Mar. 4, 1909. 
 
 courts of the United States, conceals and does not as soon as may be disclose 
 and make known the same to some one of the judges or other persons in civil or 
 military authority under the United States, shall be fined not more than five 
 hundred dollars, or imprisoned not more than three years, or both. — (35 Stat., 
 1114; sec. 5390, R. S.) 
 
 Chapter Seven. 
 
 offenses against the currency, coinage, etc. 
 
 Sec. 178. [Issuing checks, etc., for less than one dollar.] No person 
 shall make, issue, circulate, or pay out any note, check, memorandum, token, 
 or other obligation for a less sum than one dollar, intended to circulate as money 
 or to be received or used in lieu of lawful money of the United States; and every 
 person so offending shall be fined not more than five hundred dollars, or im- 
 prisoned not more than six months, or both. — (35 Stat., 1122; sec. 3583, R. S.) 
 
 Chapter Eight. 
 
 offenses against the postal service. 
 
 Sec 
 
 189, 
 190, 
 192 
 193 
 194 
 
 Injuring mail bags, etc. 
 Stealing post-office property. 
 Breaking into and entering post-office. 
 Unlawfully entering postal car, etc. 
 Stealing, secreting, embezzling, etc., mail 
 matter or contents. 
 
 195. Postmaster or employee of postal service 
 
 detaining, destroying, or embezzling 
 letter, etc. 
 
 196. Postmaster, etc., detaining or destroying 
 
 newspapers. 
 
 197. Assaulting mail carrier with intent to rob, 
 
 and robbing mail. 
 199. Deserting the mail. 
 201. Obstructing the mail. 
 207. Collection of unlawful postage forbidden. 
 
 to 
 
 Sec. 
 
 208. Unlawful pledging or sale of stamps. 
 
 209. Failure to account for postage and 
 
 cancel stamps, etc., by officials. 
 
 210. Issuing money order without payment. 
 
 211. Obscene, etc., matter nonmailable. 
 
 212. Libelous and indecent wrappers and 
 
 envelopes. 
 
 213. Lottery, gift enterprise, etc., circulars, 
 
 etc., not mailable. 
 
 214. Postmasters not to be lottery agents. 
 
 217. Poisons and explosives nonmailable. 
 
 218. Counterfeiting money orders. 
 225. Misappropriation of postal funds 
 
 property. 
 227. Fraudulent use of official envelopes. 
 230. Omission to take oath. 
 
 or 
 
 Sec. 189. [Injuring mail bags, etc.] Whoever shall tear, cut, or other- 
 wise injure any mail bag, pouch, or other thing used or designed for use in the 
 conveyance of the mail, or shall draw or break any staple or loosen any part of 
 any lock, chain, or strap attached thereto, with intent to rob or steal any such 
 mail, or to render the same insecure, shall be fined not more than five hundred 
 dollars or imprisoned not more than three years, or both. — (35 Stat., 1124; 
 sec. 5476, R. S.) 
 
 See act of May 27, 1908 (35 Stat., 417-418), and amendments quoted thereunder, as to Navy 
 mail clerks and assistants, their status, duties, etc. 
 
 Sec. 190. [Stealing, etc., post-office property.] Whoever shall steal, 
 purloin, or embezzle any mail bag or other property in use by or belonging to 
 the Post-Office Department, or shall appropriate any such property to his own 
 or any other than its proper use, or shall convey away any such property to the 
 hindrance or detriment of the public service, shall be fined not more than two 
 hundred dollars, or imprisoned not more than three years, or both. — (35 Stat,, 
 1124; sec. 5475, R. S.) 
 
 See note to section 189, above, as to Navy mail clerks. 
 
 1337 
 
Mar. 4, 1909. Pt. 3. STATUTES AT LARGE. Criminal Code. 
 
 Sec. 192. [Breaking into post-office.] Whoever shall forcibly break 
 into or attempt to break into any post-office, or any building used in whole or 
 in part as a post-office, with intent to commit in such post-office, or building, 
 or part thereof, so used, any larceny or other depredation, shall be fined not more 
 than one thousand dollars and imprisoned not more than five years. — (35 Stat., 
 1125; sec. 5478, R. S.) 
 
 See note to section 189, above, as to Na\'y mail clerks. 
 
 Sec. 193. [Unlawfully entering compartment of vessel, etc., used 
 BY mail service.] Whoever, by violence, shall enter a post-office car, or any 
 apartment in any car, steamboat, or vessel, assigned to the use of the Mail 
 Service, or shall willfully or maliciously assault or interfere with any postal 
 clerk in the discharge of his duties in connection with such car, steamboat, 
 vessel, or apartment thereof, or shall willfully aid or assist therein, shall be fined 
 not more than one thousand dollars, or imprisoned not more than three years, 
 or both.— (35 Stat., 1125; 32 Stat., 1176.) 
 
 See note to section 189, above, as to Navy mail clerks. 
 
 Sec. 194. [Stealing, embezzling, etc., mail matter.] Whoever shall 
 steal, take, or abstract, or by fraud or deception obtain, from or out of any 
 mail, post-office, or station thereof, or other authorized depository for mail 
 matter, or from a letter or mail carrier, any letter, postal card, package, bag, or 
 mail, or shall abstract or remove from any such letter, package, bag, or mail, 
 any article or thing contained therein, or shall secrete, embezzle, or destroy any 
 such letter, postal card, package, bag, or mail, or any article or thmg contained 
 therein; or whoever shall buy, receive, or conceal, or aid in buying, receiving, or 
 concealing, or shall unlawfully have in his possession, any letter, postal card, 
 package, bag, or mail, or any article or thing contained therein, which has been 
 so stolen, taken, embezzled, or abstracted, as herein described, knowing the same 
 to have been so stolen, taken, embezzled, or abstracted; or whoever shall take 
 any letter, postal card, or package, out of any post-office or station thereof, or 
 out of any authorized depository for mail matter, or from any letter or mail 
 carrier, or which has been in any post-office or station thereof, or other author- 
 ized depository, or in the custody of any letter or mail carrier, before it has been 
 delivered to the person to whom it was directed, with a design to obstruct the 
 correspondence, or to pry into the business or secrets of another, or shall open, 
 secrete, embezzle, or destroy the same, shall be fined not more than two thou- 
 sand dollars, or imprisoned not more than five years, or both. — (35 Stat., 1125; 
 sees. 3892, 5469, Revised Statutes.) 
 
 See note to section 189, above, as to Navy mail clerks. 
 
 Sec. 195. [Postal employee detaining, destroying, or embezzling 
 mail matter.] Whoever, being a postmaster or other person employed in any 
 department of the postal service, shall unlawfully detain, delay, or open any 
 letter, postal card, package, bag, or mail intrusted to him or which shall come 
 into his possession, and which was intended to be conveyed by mail, or carried 
 or delivered by any carrier, messenger, agent, or other person employed in any 
 department of the postal service, or forwarded through or delivered from any 
 post-office or station thereof established by authority of the Postmaster- 
 
 1338 
 
Criminal Code. Pt. 3. STATUTES. AT LARGE. Mar. 4, 1909. 
 
 General; or shall secrete, embezzle, or destroy any such letter, postal card, 
 package, bag, or mail; or shall steal, abstract, or remove from any such letter, 
 package, bag, or mail, any article or thing contained therein, shall be fined not 
 more than five hundred dollars, or imprisoned not more than five years or 
 both.— (35 Stat., 1125-112G; sees. 3890, 3891, 5467, R. S.) 
 
 See note to section 189, above, as to Navy mail clerks. 
 
 Sec. 196. [Postal employee detaining, opening, or destroying, etc., 
 NEWSPAPERS IN MAIL.] Wliocvcr, being a postmaster or other person employed 
 in any department of the postal service, shall improperly detain, delay,. embezzle, 
 or destroy any newspaper, or permit any other person to detain, delay, embezzle, 
 or destroy the same, or open, or permit any other person to open, any mail or 
 package of newspapers not directed to the office where he is employed; or who- 
 ever shall open, embezzle, or destroy any mail or package of newspapers not 
 being directed to him, and he not being authorized to open or receive the same; 
 or whoever shall take or steal any mail or package of newspapers from any post- 
 office or from any person having custody thereof, shall be fined not more than 
 one hundred dollars, or imprisoned not more than one year, or both. — (35 Stat., 
 1126; sec. 5471, R. S.) 
 
 See note to section 189, above, as to Navy mail clerks. 
 
 Sec. 197. [Assaulting or robbing mail custodian.] Whoever shall 
 assault any person having lawful charge, control, or custody of any mail matter, 
 with intent to rob, steal, or purloin such mail matter or any part thereof, or 
 shall rob any such person of such mail or any part thereof, shall, for a first offense, 
 be imprisoned not more than ten years; and if in efi^ecting or attempting to 
 effect such robbery, he shall wound the person having custody of the mail, or 
 put his life in jeopardy by the use of a dangerous weapon, or for a subsequent 
 offense, shall be imprisoned twenty-five years. — (35 Stat., 1126; sees. 5472, 
 5473, R. S.) 
 
 See note to section 189, above, as to Navy mail clerks. 
 
 Sec. 199. [Deserting the mail.] Whoever, having taken charge of any 
 mail, shall voluntarily quit or desert the same before he has delivered it into the 
 post-office at the termination of the route, or to some known mail carrier, mes- 
 senger, agent, or other employee in the postal service authorized to receive the 
 same, shall be fined not more than five hundred dollars, or imprisoned not more 
 than one year, or both. — -(35 Stat., 1126; sec. 5474, R. S.) 
 
 See note to section 189, above, as to Navy mail clerks. 
 
 Sec. 201. — [Obstructing the mail.] Whoever shall knowingly and will- 
 fully obstruct or retard the passage of the mail, or any carriage, horse, driver, 
 or carrier, or car, steamboat, or other conveyance or vessel carrying the same, 
 shall be fined not more than one hundred dollars, or imprisoned not more than 
 six months, or both.— (35 Stat., 1127; sec. 3995, R. S.) 
 
 See note to section 189, above, as to Navy mail clerks. 
 
 Sec. 207. [Collecting unlawful postage.] Whoever, beuig a post- 
 master or other person authorized to receive the postage of mail matter, shall 
 fraudulently demand or receive any rate of postage or gratuity or reward other 
 
 54641°— 22 85 1339 
 
Mar. 4, 1909. Pt. 3. STATUTES AT LARGE. Criminal Code. 
 
 than is provided by law for tho postage of such mail matter, shall be fined not 
 more than one hundred dollars, or imprisoned not more than six months, or 
 both.— (35 Stat., 1128; sec. 3899, K. S.) 
 
 See note to pection 189, above, as to Xavy mail clerks. 
 
 Sec. 208. [Unlawful pledging or sale of stamps, etc.] Whoever, 
 being a postmaster or other person employed in any branch of the postal service, 
 and being intrusted with the sale or custody of postage stamps, stamped 
 envelopes, or postal cards, shall use or dispose of them in the payment of debts, 
 or in the purchase of merchandise or other salable articles, or pledge or hypoth- 
 ecate the same, or sell or dispose of them except for cash; or sell or dispose of 
 postage stamps or postal cards for any larger or less sum than the values indi- 
 cated on their faces; or sell or dispose of stamped envelopes for a larger or less 
 sum than is charged therefor by the Post-Ofhce Department for like quantities; 
 or sell or dispose of, or cause to be sold or disposed of, postage stamps, stamped 
 envelopes, or postal cards at any point or place outside of the delivery of the 
 ofhce where such postmaster or other person is employed ; or induce or attempt 
 to induce, for the pm-pose of increasing the emoluments or compensation of such 
 postmaster, or the emoluments or compensation of any other person employed 
 in such post-office or any station thereof, or the allowances or facilities provided 
 therefor, any person to purchase at such post-office or any station thereof, or 
 from any employee of such post-office, postage stamps, stamped envelopes, 
 or postal cards; or sell or dispose of postage stamps, stamped envelopes, or 
 postal cards, otherwise than as provided by law" or the regulations of the Post- 
 Office Department, shall be fined not more than five hundred dollars, or impris- 
 oned not more than one year, or both. — (35 Stat., 1128; sec. 3920, R. S.) 
 
 See note to section 189, above, as to Naw mail clerks. 
 
 Sec. 209. [Failing to account for postage due, etc.] Whoever, 
 being a postmaster or other person engaged in the postal service, shall collect 
 and fail to account for the postage due upon any article of mail matter which 
 he VH2LJ deliver, without having previously affixed and canceled the special 
 stamp provided by law, or shall fail to affix such stamp, sliall be fined not 
 more than fifty dollars.— (35 Stat., 1128-1129; 20 Stat., 362.) 
 
 See note to section 189, above, as to Nav>' mail clerks. ' 
 
 Sec. 210. [IssL^NG unpaid-for money orders.] Wlioever, being a 
 postmaster or other person employed in any branch of the postal service, shall 
 issue a money order without having previously received the money therefor, 
 shall be fined not more than five hundred dollars. — (35 Stat., 1129; sec. 4030, 
 R. S.) 
 
 See note to section 189, above, as to Navy mail clerks. 
 
 Sec. 211. [Obscene matter unmailable; inciting arson, murder, 
 ETC.] Every obscene, lewd, or lascivious, and every filthy, book, pamplilet, 
 picture, paper, letter, writing, print, or other publication of an indecent charac- 
 ter, and every article or thing designed, adapted, or intended for preventing 
 conception or producing abortion, or for any indecent or immoral use; and every 
 article, instrument, substance, drug, medicine, or tiling which is advertised or 
 
 1340 
 
Criminal Code. PL 3. STATUTES AT LARGE. Mar. 4, 1909. 
 
 described in a manner calculated to lead another to use or apply it for prevent- 
 ing conception or producing abortion, or for any indecent or immoral purpose; 
 and every Mo-itten or printed card, letter, circular, book, pamphlet, advertise- 
 ment, or notice of any kind giving information directly or indirectly, where, or 
 how, or from whom, or by what means any of the hereinbefore-mentioned 
 matters, articles, or things may be obtained or made, or where or by whom any 
 act or operation of any kind for the procuring or producing of abortion will be 
 done or performed, or how or by what means conception may be prevented or 
 abortion produced, whether sealed or unsealed; and every letter, packet, or 
 package, or other mail matter containing any filthy, vile, or indecent thing, 
 device, or substance; and every paper, writing, advertisement, or representation 
 that any article, instrument, substance, drug, medicine, or thing may, or can 
 be, used or applied for preventing conception or producing abortion, or for any 
 indecent or immoral purpose; and every description calculated to induce or 
 incite a person to so use or apply any such article, instrument, substance, drug, 
 medicine, or thing, is hereby declared to be nonmailable matter and shall not be 
 conveyed in the mails or delivered from any post office or by any letter carrier. 
 Whoever shall knowingly deposit, or cause to be deposited for mailing or delivery, 
 anything declared by this section to be nonmailable, or shall knowingly take, or 
 cause the same to be taken, from the mails for the purpose of circulating or dis- 
 posing thereof, or of aiding in the circulation or disposition thereof, shall be 
 fined not more than five thousand dollars, or imprisoned not more than five 
 years, or both. And the term "indecent" witliin the intendment of this section 
 shall include matter of a character tending to incite arson, murder, or assas- 
 sination.— (35 Stat., 1129; 25 Stat., 496; sec. 3893, R. S.; 36 Stat., 1339.) 
 
 Amendment to this section was made by act of 
 
 March 4, 1911 (36 Stat., 1339), which added 
 
 thereto the last sentence above set forth. 
 See acts of July 31, 1912 (37 Stat., 240-241); 
 
 and June 15, 1917 (40 Stat., 230-231). 
 
 Sec. 212. [Libelous or indecent matter on wrappers, etc.] All 
 matter otherwise mailable by law, upon the envelope or outside cover or ^vrap- 
 per of which, or any postal card upon wliich, any delineations, epithets, terms, or 
 language of an indecent, lewd, lascivious, obscene, libelous, scurrilous, de- 
 famatory, or threatening character, or calculated by the terms or manner or 
 style of display and obviously intended to reflect injuriously upon the character 
 or conduct of another, may be written or printed or otherwise impressed or 
 apparent, are hereby declared nonmailable matter, and shall not be conveyed 
 in the mails nor delivered from any post-office nor by any letter carrier, and shall 
 be withdrawn from the mails under such regulations as the Postmaster-General 
 shall prescribe. Whoever shall knowingly deposit or cause to be deposited, 
 for mailing or delivery, anything declared by this section to be nonmailable 
 matter, or shall knowingly take the same or cause the same to be taken from 
 the mails for the purpose of circulating or disposing of or aiding in the circula- 
 tion or disposition of the same, shall be fined not more than five thousand 
 dollars, or imprisoned not more than five years, or both.— (35 Stat., 1129; 
 25 Stat., 496.) 
 
 Sec. 213. [Lottery circui^vrs, etc., not mailable.] No letter, package, 
 postal card, or circular concerning any lottery, gift enterprise, or similar scheme 
 
 1341 
 
 Punishment for mailing threats against the 
 President: See act of February 14, 1917 
 (39 Stat., 919). 
 
Mar. 4, 1909. Pt. 3. STATUTES AT LARGE. Criminal Code. 
 
 olTering prizes dependent in wliole or in part upon lot or chance; and no lottery 
 ticket or part thereof, or paper, certificate, or instrument purporting to be or to 
 represent a ticket, chance, share, or interest in or dependent upon the event of a 
 lottery, gift enterprise, or similar scheme offering prizes dependent in whole or 
 in part upon lot or chance; and no check, draft, hill, money, postal note, or 
 money order, for the purchase of any ticket or part thereof, or of any share or 
 chance in any such lottery, gift enterprise, or scheme; and no newspaper, 
 circular, pamplilet, or publication of any kind containing any advertisement 
 of any lottery, gift enterprise, or scheme of any kind offering prizes dependent 
 in whole or in part upon lot or chance, or containing any list of the prizes drawn 
 or awarded by means of any such lottery, gift enterprise, or scheme, whether 
 said list contains any part or all of such prizes, shall be deposited in or carried 
 by the mails of the United States, or be delivered by any postmaster or letter 
 carrier. Whoever shall knowingly deposit or cause to be deposited, or shall 
 knowingly send or cause to be sent, anything to be conveyed or delivered by 
 mail in violation of the provisions of this section, or shall knowingly deliver or 
 cause to be delivered by mail anything herein forbidden to be carried by mail, 
 shall be fined not more than one thousand dollars, or imprisoned not more than 
 two years, or both; and for any subsequent offense shall be imprisoned not more 
 than five years. Any person violating any provision of this section may be 
 tried and punished either in the district in which the unlawful matter or publi- 
 cation was mailed, or to which it was carried by mail for delivery according to 
 the direction thereon, or in wliich it was caused to be delivered by mail to the 
 person to whom it was addressed.— (35 Stat., 1129-1130; sec. 3894, K. S.; 
 26 Stat., 465; 28 Stat., 963.) 
 
 Sec. 214. [Postal employee selling or delivering lottery tickets, 
 ETC.] Whoever, being a postmaster or other person employed in the postal 
 service, shall act as agent for any lottery office, or under color of purchase or 
 otherwise, vend lottery tickets, or shall knowingly send by mail or deliver any 
 letter, package, postal card, circular, or pamphlet advertising any lottery, gift 
 enterprise, or similar scheme, offering prizes dependent in whole or in part upon 
 lot or chance, or any ticket, certificate, or instrument representing any chance, 
 share, or interest in or dependent upon the event of any lottery, gift enterprise, 
 or similar scheme offering prizes dependent in whole or in part upon lot or chance, 
 or any list of the prizes awarded by means of any such scheme, shall be fined 
 not more than one hundred dollars, or imprisoned not more than one year, or 
 both.— (35 Stat., 1130; sec. 3851, R. S.) 
 
 See note to section 189, above, as to Navy mail clerks. 
 
 Sec 217. [Poisons, explosives, intoxicants, etc., nonivlulable.] That 
 all kinds of poison, and all articles and compositions containing poison, and all 
 poisonous animals, insects, and reptiles, and explosives of all kinds, and inflam- 
 mable materials, and infernal machines, and mechanical, chemical, or other 
 devices or compositions which may ignite or explode, and all disease germs or 
 scabs, and all other natural or artificial articles, compositions, or materials, of 
 whatever kuid, which may kill or in anywise hurt, harm, or injure another or 
 damage, deface, or otherwise injure the mails or other property, whether sealed 
 as first-class matter or not, are hereby declared to be nonmailable matter, and 
 
 1342 
 
Criminal Code. 
 
 PL 3. STATUTES AT LARGE. 
 
 Mar. 4, 1909. 
 
 shall not be conveyed in the mails or delivered from any post office or station 
 thereof, nor by any letter carrier; but the Postmaster General may permit the 
 transmission in the mails, from the manufacturer thereof or dealer therein to 
 licensed physicians, surgeons, dentists, pharmacists, druggists, and veterinarians, 
 under such rules and regulations as he shall prescribe, of any articles herein- 
 before described which arc not outwardly or of their own force dangerous or 
 injurious to life, health, or propert}^: Provided, That all spirituous, vinous, 
 malted, fermented, or other intoxicating liquors of any kind are hereby de- 
 clared to be nonmailable, and shall not be deposited in or carried through the 
 mails. Whoever shall knowingly deposit or cause to be deposited for mailing 
 or delivery, or shall knowingly cause to be delivered by mail, according to the 
 direction thereon or at any place at which it is directed to be delivered by the 
 person to .whom it is addressed, anj^thing declared by this section to be non- 
 mailable, unless in accordance with the rules and regulations hereby authorized 
 to be prescribed by the Postmaster General, shall be fined not more than $1,000 
 or imprisoned not more than two years, or both; and whoever shall knowingly 
 deposit or cause to be deposited for mailing or delivery, or shall knowingly 
 cause to be delivered by mail, according to the direction thereon or at any 
 place to which it is directed to be delivered by the person to whom it is ad- 
 dressed, anything declared by this section to be nonmailable, whether trans- 
 mitted in accordance with the rules and regulations authorized to be prescribed 
 by the Postmaster General or not, with the design, intent, or purpose to kill 
 or in anywise hurt, harm, or injure another, or damage, deface, or otherwise 
 injure the mails or other property, shall be fined not more than $10,000 or 
 imprisoned not more than twenty years, or both. — (35 Stat., 1131; 41 Stat., 
 620-621.) 
 
 This section waa expressly amended and re- 
 enacted to read ae above by act of May 25, 
 1920 (41 Stat., 620-621). 
 
 Restrictions on the mailing of advertisements or 
 orders for intoxicants ^vere prescril^ed bv 
 act of March 3, 1917 (39 Stat., 1069), as 
 
 amended by acts of October 3, 1917 (40 
 Stat., 329), and Februarv 24, 1919 (40 
 Stat., 1151). 
 See sections 232 and 235, below, as to trans- 
 portation of explosives. 
 
 Sec. 218. [Forging money orders or signatures thereon, etc.] Wlio- 
 ever, with intent to defraud, shall falsely make, forge, counterfeit, engrave, or 
 print, or cause or procure to be falsely made, forged, counterfeited, engraved, 
 or printed, or shall willingly aid or assist in falsely making, forging, counter- 
 feiting, engraving, or printmg, any order in imitation of or purporting to be a 
 money order issued by the Post-Office Department, or by any postmaster or 
 agent thereof; or whoever shall forge or counterfeit the signature of any post- 
 master, assistant postmaster, chief clerk, or clerk, upon or to any money order, 
 or postal note, or blank therefor provided or issued by or under the direction 
 of the Post-Office Department of the United States, or of any foreign country, 
 and payable in the United States, or any material signature or indorsement 
 thereon, or any material signature to any receipt or certificate of identification 
 thereon; or shall falsely alter, or cause or procure to be falsely altered in any 
 material respect, or knowingly aid or assist in falsely so altering any such money 
 order or postal note; or shall, with intent to defraud, pass, utter, or publish any 
 such forged or altered money order or postal note, knowing any material signa- 
 ture or indorsement thereon to be false, forged, or counterfeited, or any material 
 
 1343 
 
Mar. 4, 1909. Pt. 3. STATUTES AT LARGE. Criminal Code. 
 
 alteration therein to have been falsely made; or shall issue any money order or 
 postal note without having previously received or paid the full amount of money 
 payable therefor, with the purpose of fraudulently obtaining or receiving, or 
 fraudulently enabling any other person, either directly or indirectly, to obtain 
 or receive from the United States, or any officer, employee, or agent thereof, any 
 sum of money whatever; or shall, with intent to defraud the United States, or 
 any person, transmit or present to, or cause or procure to be transmitted or 
 presented to, any officer or employee, or at any office of the Government of the 
 United States, any money order or postal note, knowing the same to contain 
 any forged or counterfeited signature to the same, or to any material indorse- 
 ment, receipt, or certificate thereon, or material alteration therein unlawfully 
 made, or to have been unlawfully issued without previous payment of the 
 amount required to be paid upon such issue, shall be fined not more than five 
 thousand dollars, or imprisoned not more than five years, or both. — (35 Stat., 
 1131-1132; 24 Stat., 355; 25 Stat., 187; sec. 5463, R. S.] 
 
 See note to section 189, above, as to Navy mail clerks. 
 
 Sec. 225. [Misappropriating postal funds, etc.] Whoever, being a 
 postmaster or other person employed in or connected with any branch of the 
 postal service, shall loan, use, pledge, hypothecate, or convert to his own use, 
 or shall deposit in any bank, or exchange for other funds or property, except as 
 authorized by law, any money or property coming into his hands or under his 
 control m any manner whatever, in the execution or under color of his office, 
 employment, or service, whether the same shall be the money or property of 
 the United States or not; or shall fail or refuse to remit to or deposit in the 
 Treasury of the United States or in a designated depository, or to accomit for 
 or turn over to the proper officer or agent, any such money or property, when 
 required so to do by law or the regulations of the Post-Office Department, or 
 upon demand or order of the Postmaster-General, either directly or through a 
 duly authorized officer or agent, shall be deemed guilty of embezzlement; and 
 every such person, as well as every other person advising or knowingly partici- 
 pating therein, shall be fined in a sum equal to the amount or value of the 
 money or property embezzled or imprisoned not more than ten years, or both. 
 Any failure to produce or to pay over any such money or property, when 
 reqmred so to do as above provided, shall be taken to be prima facie evidence of 
 such embezzlement; and upon the trial of any indictment against any person 
 for such embezzlement it shall be prima facie evidence of a balance against him 
 to produce a transcript from the account books of the Auditor for the Post-Office 
 Department. But nothing herein shall be construed to prohibit any post- 
 master depositing, under the direction of the Postmater-General, in a national 
 bank designated by the Secretary of the Treasury for that purpose, to his own 
 credit as postmaster, any funds in his charge, nor prevent his negotiating 
 drafts or other evidences of debt through such bank, or through United States 
 disbursing officers, or otherwise, when instructed or required so to do by the 
 Postmaster-General, for the purpose of remitting surplus funds from one post- 
 office to another.— (35 Stat., 1133-1134; sees. 4046, 4053.) 
 
 See note to section 189, above, as to Navy mail clerks. 
 
 1344 
 
Criminal Code. Pt. 3. STATUTES AT LARGE. Mar. 4, 1909. 
 
 Sec. 227. [Fraudulent use of official envelopes.] Whoever shall 
 make use of any official envelope, label, or indorsement authorized by law, to 
 avoid the payment of postage or registry fee on his private letter, packet, 
 package, or other matter in the mail, shall be fined not more than three hun- 
 dred dollars.— (35 Stat., 1134; 19 Stat., 335.) 
 
 See act of March 3, 1877 (19 Stat., 335-336); and see laws noted under sections 388 and 398, 
 Re\'ised Statutes. 
 
 Sec. 230. [Omission to take oath.] Every person employed in the 
 Postal Service shall be subject to all penalties and forfeitures for the violation 
 of the laws relating to such service, whether he has taken the oath of office or 
 not.— (35 Stat., 1134; sec. 3832, R. S.) 
 
 See note to section 189, above, as to Navy mail clerks; see also sections 391-392, Revised 
 Statutes, and notes thereto. 
 
 Chapter Nine, 
 offenses against foreign and interstate commerce. 
 
 Sec. 
 
 232. Dynamite, etc., not to be carried on ves- 
 sels or vehicles carrying passengers for 
 hire. 
 
 235. Marking of packages of explosives; decep- 
 tive marking. 
 
 '■b- 
 
 Sec. 
 237. Importation and transportation of lottery 
 
 tickets, etc., forbidden. 
 245. Importation and transportation of obscene, 
 etc., books, etc. 
 
 Sec. 232. [Explosives, transportation; naval forces, etc.] It shall 
 be unlawful to transport, carry, or convey, within the limits of the jurisdiction 
 of the United States, any high explosive, such as, and including, dynamite, 
 blasting caps, detonating fuzes, black powder, gunpowder, or other like ex- 
 plosive, on any vessel, car, or vehicle of any description operated in the trans- 
 portation of passengers by a common carrier engaged in interstate or foreign 
 commerce, which vessel, car, or vehicle is carrying passengers for hire: Pro- 
 vided, That it shall be lawful to transport on any such vessel, car, or vehicle 
 smokeless powder, primers, fuses, not including detonating fuzes, fireworks, 
 or other similar explosives, and properly packed and marked samples of explo- 
 sives for laboratory examination, not exceeding a net weight of one-half pound 
 each, and not exceeding twenty samples at one time in a single vessel, car, or 
 vehicle ; but such explosives shall not be carried in that part of a vessel, car, or 
 vehicle which is being used for the transportation of passengers for hire : Pro- 
 vided further, That it shall be lawful to transport on any such vessel, car, or 
 vehicle small-arms ammunition in any quantity, and such fusees, torpedoes, 
 rockets, or other signal devices as may be essential to promote safety in opera- 
 tion: And provided further, That nothing in this section shall be construed to 
 prevent the transportation of military or naval forces with their accompanying 
 munitions of war on passenger-equipment vessels, cars, or vehicles. 
 
 The words 'detonating fuzes," as used in this section shall be interpreted 
 to mean fuzes used in naval or military service to detonate the high explosive 
 bursting charges of projectiles, mines, bombs, or torpedoes. The word "fuses" 
 as used herein shall be interpreted to mean devices used in igniting the bursting 
 charges of projectiles. The word "primers" as used herein shall be interpreted 
 to mean devices used in igniting the propelling powder charges of ammunition. 
 
 Ie345 
 
Mar. 4, 1909. Pi. .>'. STA TUTES A T LARGE. Criminal Code. 
 
 The word "fuses" as used herein shall be interpreted to mean the slow-burning 
 fuses used commercially and intended to convey lire to an explosive or com- 
 bustible mass slowly or without danger to the person lighting. The word 
 "fusees" as used herein shall be interpreted to mean the fusees ordinarily used 
 on steamboats and railroads as night signals. — (35 Stat., 1134-1135; sec. 5353, 
 R. S.; 35 Stat., 554; 41 Stat., 1444.) 
 
 This section was expressly amended and reenacted to read as above by act of March 4, 1921 
 (41 Stat., 1444). 
 
 Sec. 235. [Marking packages of explosives; penalty for violating 
 PRECEDING SECTIONS.] Every package containing explosives or other dangerous 
 articles when presented to a common carrier for shipment shall have plainly 
 marked on the outside thereof the contents thereof; and it shall be unla^vful 
 for any person to deliver, or cause to be delivered, to any common carrier engaged 
 in interstate or foreign commerce by land or water, or to carry upon any vessel, 
 car, or vehicle operated by any common carrier engaged in interstate or foreign 
 commerce by land or water any explosive, or other dangerous article, as speci- 
 fied in section 233 of this Act, under any false or deceptive marking, description, 
 invoice, shipping order, or other declaration, or without informing the agent of 
 such carrier in writing of the true character thereof, at or before the time such 
 delivery or carriage is made. Whoever shall knowingly violate, or cause to be 
 violated, any provision of this section, or of the three sections last preceding, 
 or any regulation made by the Interstate Commerce Commission in pursuance 
 thereof, shall be fined not more than $2,000 or imprisoned not more than 
 eighteen months, or both. — (35 Stat., 1135; 35 Stat., 555; sec. 5355, R. S. ; 41 
 Stat., 1445.) 
 
 This section was expressly amended and reenacted to read as above by act of March 4, 1921 
 (41 Stat., 1445). 
 
 Sec. 237. [Importing, epc, lottery tickets, etc.] Whoever shall bring 
 or cause to be brought into the United States or any place subject to the juris- 
 diction thereof, from any foreign country, for the purpose of disposing of the 
 same, any paper, certificate, or instrument purporting to be or to represent a 
 ticket, chance, share, or interest in or dependent upon the event of a lottery, 
 gift enterprise, or similar scheme, offering prizes dependent in whole or in part 
 upon lot or chance, or any advertisement of, or list of the prizes drawn or 
 awarded by means of, any such lottery, gift enterprise, or similar scheme; or 
 shall therein knowingly deposit or cause to be deposited with any express com- 
 pany or other common carrier for carriage, or shall carry, from one State, 
 Territory, or District of the United States, or place noncontiguous to but subject 
 to the jurisdiction thereof, to any other State, Territory, or District of the United 
 States, or place noncontiguous to but subject to the jurisdiction thereof, or 
 from any place in or subject to the jurisdiction of the United States through a 
 foreign country to any place in or subject to the jurisdiction thereof, or from 
 any place in or subject to the jurisdiction of the United States to a foreign 
 country, any paper, certificate, or instrument purporting to be or to represent 
 a ticket, chance, share, or interest in or dependent upon the event of any such 
 lottery, gift enterprise, or similar scheme, or any advertisement of, or list of the 
 prizes drawn or awarded by means of, any such lottery, gift enterprise, or 
 
 1346 
 
Criminal Code. Ft. 3. STATUTES AT LARGE. Mar. 4, 1909. 
 
 similar scheme, or shall knowingly take or receive, or cause to be taken or 
 received, any such paper, certificate, instrument, advertisement, or list so 
 brought, deposited, or transported, shall, for the first offense, be fined not more 
 than one thousand dollars, or imprisoned not more than two years, or both; 
 and for any subsequent offense shall be imprisoned not more than two years. — 
 (35 Stat., 1136; 28 Stat., 963.) 
 
 Sec. 245. [Importing or transporting obscene books, etc.] Whoever 
 shall bring or cause to be brought into the United States, or any place subject 
 to the jurisdiction thereof, from any foreign country, or shall therein know- 
 ingly deposit or cause to be deposited with any express company or other 
 common carrier, for carriage from one State, Territory, or District of the 
 United States or place noncontiguous to but subject to the jurisdiction thereof, 
 to any other State, Territory, or District of the United States, or place non- 
 contiguous to but subject to the jurisdiction thereof, or from any place in or 
 subject to the jurisdiction of the United States, through a foreign country, to 
 any place in or subject to the jurisdiction thereof, or from any place in or sub- 
 ject to the jurisdiction of the United States to a foreign country, any obscene, 
 lewd, or lascivious, or any filthy book, pamphlet, picture, motion-picture film, 
 paper, letter, writing, print, or other matter of indecent character, or any drug, 
 medicine, article, or thing designed, adapted, or intended for preventing con- 
 ception, or producing abortion, or for any indecent or immoral use; or any -writ- 
 ten or printed card, letter, circular, book, pamphlet, advertisement, or notice 
 of any kind giving information, directly or indirectly, w^here, how, or of whom, 
 or by what means any of the hereinbefore mentioned articles, matters, or things 
 may be obtained or made; or whoever shall knowingly take or cause to be 
 taken from such express company or other common carrier any matter or thing 
 the depositing of which for carriage is herein made unla^^^"ul, shall be fined not 
 more than $5,000 or imprisoned not more than five years, or both. — (35 Stat., 
 1138; 33 Stat., 705; 29 Stat., 512; 41 Stat., 1060-1061.) 
 
 This section was expressly amended and reenacted to read as al)ove bv act of June 5, 1920 
 (41 Stat., 1060-106 1).' 
 
 Chapter Ten. 
 the slave trade and peonage. 
 
 Sec. 
 
 260. Seizure of vessels engaged in the slave 
 trade. 
 
 Sec. 
 
 267. Instructions to commanders of armed 
 
 vessels. 
 
 Sec. 260. [Seizure of vessels in slave trade; use of naval 
 FORCES.] The President is authorized, when he deems it expedient, to man 
 and employ any of the armed vessels of the United States to cruise wherever 
 he may judge attempts are making to carry on the slave trade, by citizens or 
 residents of the United States, in contravention of laws prohibitory of the 
 same; and, in such case, he shall instruct the commanders of such armed ves- 
 sels to seize, take, and bring into any port of the United States, to be pro- 
 ceeded against according to law, all American vessels wheresoever found, 
 which may have on board, or which may be intended for the purpose of taking 
 on board, or of transporting, or may have transported any person, in violation 
 
 1347 
 
Mar. 4, 1909. 
 
 Pt. 3. STA TUTES A T LARGE. 
 
 Criminal Code. 
 
 of the provisions of any Act of Congress prohibiting the traffic in slaves. — (35 
 Stat., 1140-1141; sec. 5557, R. S.) 
 
 Sec. 267. [Instructions to commanders of armed vessels.] The 
 President is authorized to issue instructions to the commanders of the armed 
 vessels of the United States, directing them, whenever it is practicable, and 
 under such rules and regulations as he may prescribe, to proceed directly to 
 the country from which they were taken, and there hand over to the agent of 
 the United States all such persons, delivered from on board vessels seized in 
 the prosecution of the slave trade; and they shall afterwards bring the cap- 
 tured vessels and persons engaged in prosecuting such trade to the United 
 States for trial and adjudication. — (35 Stat., 1141; sec. 5567, R. S.) 
 
 Chapter Eleven. 
 
 offenses within the admiralty and maritime and the territorial [or 
 
 exclusive] jurisdiction of the UNITED STATES. 
 
 Sec. 
 
 272. Places within or waters upon which sec- 
 
 tions of this chapter shall apply. 
 
 273. Murder. 
 
 274. Manslaughter. 
 
 275. Punishment for murder; for manslaughter. 
 
 276. Assault with intent to commit murder, etc. 
 
 277. Attempt to commit murder or man- 
 
 slaughter. 
 
 278. Rape.' 
 
 279. Having carnal knowledge of female under 
 
 sixteen. 
 
 Sec. 
 
 283. Maiming. 
 
 284. Robbery. 
 
 285. Arson of dwelling house. 
 
 286. Arson of other buildings, etc. 
 
 287. I.arceny. 
 
 288. Receiving, etc., stolen goods. 
 
 289. Laws of States adopted for punishing 
 
 \vrongful acts, etc. 
 
 Sec. 272. [Places within or waters upon which this chapter 
 SHALL APPLY.] The crimcs and offenses defined in this chapter shall be pun- 
 ished as herein prescribed : 
 
 First. When committed upon the high seas, or on any other waters within the 
 admiralty and maritime jurisdiction of the United States and out of the juris- 
 diction of any particular State, or when committed within the admiralty and 
 maritime jurisdiction of the United States and out of the jurisdiction of any 
 particular State on board any vessel belonging in whole or in part to the 
 United States or any citizen thereof, or to any corporation created by or under 
 the laws of the United States, or of any State, Territory, or District thereof. 
 
 Second. When committed upon any vessel registered, licensed, or enrolled 
 under the laws of the United States, and being on a voyage upon the waters of 
 any of the Great Lakes, namely: Lake Superior, Lake IMichigan, Lake Huron, 
 Lake Saint Clair, Lake Erie, Lake Ontario, or any of the waters connecting 
 any of said lakes, or upon the River Saint Lawrence where the same constitutes 
 the International boundary line. 
 
 Third. When committed within or on any lands reserved or acquired for the 
 exclusive use of the United States, and under the exclusive jurisdiction thereof, 
 or any place purchased or otherwise acc^uired by the United States by consent 
 of the legislature of the State in which the same shall be, for the erection of a 
 fort, magazine, arsenal, dock-yard, or other needful building. 
 
 Fourth. On any island, rock, or key, containing deposits of guano, wliich 
 may, at the discretion of the President, be considered as appertaining to the 
 United States.— (35 Stat., 1142-1143; sec. 5339, R. S.; 26 Stat., 424.) 
 
 1348 
 
Criminal Code. Ft. 3. STATUTES AT LARGE. Mar. 4, 1909. 
 
 Sec. 273. [Murder defined.] Murder is the unlawful killing of a human 
 being with malice aforethought. Every murder perpetrated by poison, lying 
 in wait, or any other kind of willful, deliberate, malicious, and premeditated 
 killing; or committed in the perpetration of, or attempt to perpetrate, any ar- 
 son, rape, burglary, or robbery; or perpetrated from a premeditated design 
 unlawH^ully and maliciously to effect the death of any human being other than 
 him who is killed, is murder in the first degree. Any other murder is murder 
 in the second degree. (35 Stat., 1143.) 
 
 Sec. 274. [Manslaughter defined.] Manslaughter is the unlawful kill- 
 ing of a human being without malice. It is of two kinds: 
 
 First. Voluntary — Upon a sudden Cjuarrel or heat of passion. 
 
 Second. Involuntary — In the commission of an unlawful act not amounting 
 to a felony, or in the commission of a la\\'ful act wliich might produce death, 
 in an unla^\^'ul manner, or without due caution and circumspection. — (35 Stat., 
 1143; sec. 5341, R. S.) 
 
 Sec. 275. [Punishment for murder and manslaughter.] Every 
 person guilty of murder in the first degree shall suffer death. Every person 
 guilty of murder in the second degree shall be imprisoned not less than ten 
 3'ears and may be imprisoned for life. Every person guilty of voluntary man- 
 slaughter shall be imprisoned not more than ten years. Every person guilty 
 of involuntary manslaughter shall be imprisoned not more than three years, or 
 fined not exceeding one thousand dollars, or both. — (35 Stat., 1143; sees. 5339, 
 ,5343, R. S.) 
 
 Sec. 276. [Assaih.t with intent to commit murder, etc.] Whoever 
 shall assault another with intent to commit murder, or rape, shall be imprisoned 
 not more than twenty years. Whoever shall assault another with intent to 
 commit any felony, except murder, or rape, shall be fined not more than three 
 thousand dollars, or imprisoned not more than ten years, or both. ^Yhoever, 
 with intent to do bodily harm, and without just cause or excuse, shall assault 
 another with a dangerous weapon, instrument, or other thing, shall be fined 
 not more than one thousand dollars, or imprisoned not more than five years, or 
 both. Whoever shall unlawfully strike, beat, or wound another, shall be fined 
 not more than five hundred dollars, or imprisoned not more than six months, 
 or both. Whoever shall unlawfully assault another, shall be fined not more 
 than three hundred dollars, or imprisoned not more than three months, or 
 both.— (35 Stat., 1143; sec. 5346, R. S.) 
 
 Sec. 277. [Attempt to commit murder or manslaughter.] Wlio- 
 ever shall attempt to commit murder or manslaughter, except as provided in 
 the preceding section, shall be fined not more than one thousand dollars and 
 imprisoned not more than three years. — (35 Stat., 1143; sec. 5342, R. S.) 
 
 Sec. 278. [Rape.] Whoever shall commit the crime of rape shall suffer 
 death.— (35 Stat., 1143; sec. 5345, R. S.) 
 
 Sec. 279. [Having carnal knowledge of female under sixteen.] 
 "Wlioever shall carnally and unhiAA^ully know any female under the age of six- 
 teen years, or shall be accessory to such carnal and unlawful knowledge before 
 the fact, shall, for a first offense, be imprisoned not more than fifteen years, and 
 for a subsecjuent offense be imprisoned not more than thirty years. — (35 Stat., 
 1143; 25 Stat., 658.) 
 
 1349 
 
Mar. 4, 1909. Pt. S. STATUTES AT LARGE. Criminal Code. 
 
 Sec. 283. [Maiming, etc.] Whoever, with intent to maim or disfigure, 
 shall cut, bite, or slit, the nose, ear, or lip, or cut out or disable the tongue, or put 
 out or destroy an eye, or cut off or disable a limb or any member of another 
 person; or whoever, with like intent, shall throw or pour upon another person, 
 any scalding hot water, vitriol, or other corrosive acid, or caustic substance 
 whatever, shall be fined not more than one thousand dollars, or imprisoned not 
 more than seven years, or both. — (35 Stat., 1144; sec. 5348, R. S.) 
 
 Sec. 284. [Robbery.] Wlioever, by force and violence, or by putting in 
 fear, shall feloniously take from the person or presence of another anything of 
 value, shall be imprisoned not more than fifteen years. — (35 Stat., 1144.) 
 
 Sec. 285. [Arson of dwelling house.] Whoever shall willfully and mali- 
 ciously set fire to, burn, or attempt to burn, or by means of a dangerous explo- 
 sive destroy or attempt to destroy, any dwelling house, or any store, barn, 
 stable, or other building, parcel of a dw^elling house, shall be imprisoned not 
 more than twenty years. — (35 Stat., 1144; sec. 5385, R. S.) 
 
 Sec. 286. [Arson of other BL^LDINGS, etc.] WTioever shall maliciously 
 set fire to, burn, or attempt to burn, or by any means destroy or injure, or 
 attempt to destroy or injure, any arsenal, armory, magazine, ropewalk, ship 
 house, warehouse, blockliouse, or barrack, or any storehouse, barn, or stable, 
 not parcel of a dwelling house, or any other building not mentioned in the sec- 
 tion last preceding, or any vessel built, building, or undergoing repair, or any 
 light-house, or beacon, or any machinery, timber, cables, rigging, or other 
 materials or appliances for building, repairing, or fitting out vessels, or any 
 pile of wood, boards, or other lumber, or any military, naval, or victualing 
 stores, arms, or other munitions of w^ar, shall be fined not more than five thou- 
 sand dollars and imprisoned not more than twenty years. — (35 Stat., 1144; sees. 
 5386, 5387, R. S.) 
 
 See section 301, below. 
 
 Sec. 287. [Larceny; value of written instrument.] Whoever shall 
 take and carry away, with intent to steal or purloin, any personal property of 
 another, shall be punished as follows : If the property taken is of a value exceed- 
 ing fifty dollars, or is taken from the person of another, by a fine of not more 
 than ten thousand dollars, or imprisonment for not more than ten years, or 
 both; in all other cases, by a fine of not more than one thousand dollars, or by 
 imprisonment not more than one year, or both. If the property stolen consists 
 of any evidence of debt, or other ^^Titten instrument, the amount of money due 
 thereon, or secured to be paid thereby, and remaining unsatisfied, or which in 
 any contingency might be collected thereon, or the value of the property the 
 title to which is sho^\Ti thereby, or the sum which might be recovered in the 
 absence thereof, shall be deemed to be the value of the property stolen. — (35 
 Stat., 1144-1145; sec. 5356, R. S.) 
 
 Sec. 288. [Receiving stolen goods, etc.] Wlioever shall buy, receive, or 
 conceal, any money, goods, bank notes, or other thing which may be the sub- 
 ject of larceny, which has been feloniously taken, stolen, or embezzled, from any 
 other person, knowing the same to have been so taken, stolen, or embezzled, 
 shall be fined not more than one thousand dollars and imprisoned not more than 
 
 1360 
 
Criminal Code. 
 
 Pt. 3. STATUTES AT LARGE. 
 
 Mar. 4, 1909. 
 
 thi"ee years ; and such person may be tried either before or after the conviction 
 of the principal offender. — (35 Stat., 1145; sec. 5357, R. S.) 
 See section 334, below. 
 
 Sec. 289. [State laws adopted in Federal reservations.] Whoever, 
 within the territorial limits of any State, organized Territory, or District, but 
 within or upon any of the places now existing or hereafter reserved or acquired, 
 described in section two hundred and seventy-two of this Act, shall do or omit 
 the doing of any act or thing which is not made penal by any law of Congress, 
 but which if committed or omitted within the jurisdiction of the State, Terri- 
 tory, or District in which such place is situated, by the laws thereof now in force 
 would be penal, shall be deemed guilty of a like offense and be subject to a like 
 punishment; and every such State, Territorial, or District law shall, for the 
 purposes of this section, continue in force, notwithstanding any subsequent 
 repeal or amendment thereof by any such State, Territory or District. — (35 
 Stat., 1145; sec. 5391, R. S.; 30 Stat., 717.) 
 
 Chapter Twelve. 
 
 PIRACY and other OFFENSES UPON THE SEAS. 
 
 Sec. 
 290. 
 291. 
 292. 
 293. 
 294. 
 
 Piracy under the law of nations. 
 Maltreatment of crew by officers of vessel. 
 Inciting revolt or mutiny on shipboard. 
 Revolt and mutiny on shipboard. 
 Seaman laying \'iolent hands on his com- 
 mander. 
 
 Sec. 
 295. 
 297. 
 299. 
 301. 
 
 310. 
 
 Abandonment of mariners in foreign ports. 
 Plundering vessel in distress, etc. 
 Breaking and ent<>ring vessel, etc. 
 Other person destroying or attempting to 
 
 destroy vessel at sea. 
 "Vessels of the United States" defined. 
 
 Sec. 290. [Piracy.] Whoever, on the high seas, commits the crime of 
 piracy as defined by the law of nations, and is afterwards brought into or found 
 in the United States, shall be imprisoned for life. — (35 Stat., 1145; sec. 5368, 
 
 R. S.) 
 
 See section 294, below. 
 
 Sec. 291. [Maltreatment of crew by officers.] Whoever, being the 
 master or officer of a vessel of the United States, on the high seas, or on any 
 other waters within the admiralty and maritime jurisdiction of the United States, 
 beats, wounds, or without justifiable cause, imprisons any of the crew of such 
 vessel, or withholds from them suitable food and nourishment, or infhcts upon 
 them any cruel and unusual punisliment, shall be fined not more than one 
 thousand dollars, or imprisoned not more than five years, or both. * * *^ 
 —(35 Stat., 1145; 29 Stat., 691; sec. 5347, R. S.) 
 
 See section 310, below, for definition of "vessel of the United States." 
 
 Sec. 292. [Inciting revolt or mutiny on sihpboard.] Whoever, being 
 of the crew of a vessel of the United States, on the high seas, or on any other 
 waters within the admiralty and maritime jurisdiction of the United States, 
 endeavors to make a revolt or mutiny on board such vessel, or combines, con- 
 spires, or confederates with any other person on board to make such revolt or 
 mutiny, or solicits, incites, or stirs up any other of the crew to disobey or resist 
 the lawful orders of the master or other officer of such vessel, or to refuse or 
 neglect their proper duty on board thereof, or to betray their proper trust, or 
 
 1351 
 
Mar. 4, 1909. Pi. S. STATUTES AT LARGE. Ciiminal Code. 
 
 assembles with others in a tumultuous and mutinous manner, or makes a riot 
 on board thereof, or unlawfully confines the master or other commanding officer 
 thereof, shall be fined not more than one thousand dollars, or imprisoned not 
 more than five years, or both. — (35 Stat., 114G; sec. 5359, R. S.) 
 See section 310, below, for definition of "vessel of the United States." 
 
 Sec. 293. [Revolt or mutiny on sinPBOARD.] Wlioever, being of the 
 crew of a vessel of the United States, on the high seas, or on any other waters 
 within the admiralty and maritime jurisdiction of the United States, unlaw- 
 fidly and with force, or by fraud, or intimidation, usurps the command of 
 such vessel from the master or other lawful officer in command thereof, or 
 deprives him of authority and command on board, or resists or prevents him 
 in the free and laA\dful exercise thereof, or transfers such authority and command 
 to another not lawfully entitled thereto, is guilty of a revolt and mutiny, and 
 shall be fined not more than two thousand dollars and imprisoned not more 
 than ten years.— (35 Stat., 1146; sec. 5360, R. S.) 
 
 See section 310, below, for definition of "vessel of the United States." 
 
 Sec. 294. [Seaman laying hands on commander.] Wlioever, being 
 a seaman, lays violent hands upon his commander, thereby to hinder and 
 prevent his fighting in defense of his vessel or the goods intrusted to him, is 
 a pirate, and shall be imprisoned for life. — (35 Stat., 1146; sec. 5369, R. S.) 
 
 Sec. 295. [Abandonment of mariner in foreign port.] Whoever, 
 being master or commander of a vessel of the United States, while abroad, 
 maliciously and without justifiable cause forces any oflficer or mariner of such 
 vessel on shore, in order to leave him behind in any foreign port or place, or 
 refuses to bring home again all such officers and mariners of such vessel whom 
 he carried out with him, as are in a condition to return and willing to return, 
 when he is ready to proceed on his homeward voyage, shall be fined not more 
 than five hundred dollars, or imprisoned not more than six months, or both. — 
 (35 Stat., 1146; sec. 5363, R. S.) 
 
 See section 310, below, for definition of "vessel of the United States." 
 
 Sec. 297. [Plundering vessel in distress, etc.] Whoever plunders, 
 steals, or destroys any money, goods, merchandise, or other effects, from or 
 belonging to any vessel in distress, or wrecked, lost, stranded, or cast away, 
 upon the sea, or upon any reef, slioal, bank, or rocks of the sea, or in any other 
 place within the admiralty and maritime jurisdiction of the United States, 
 shall be fined not more than five thousand dollars and imprisoned not more 
 than ten years ; and whoever willfully obstructs the escape of any person endeav- 
 oring to save his life from such vessel, or the wTeck thereof; or whoever holds out 
 or shows any false light, or extinguishes any true light, with mtent to bring 
 any vessel sailing upon the sea into danger, or distress, or shipwreck, shall be 
 imprisoned not less than ten years and may be imprisoned for life. — (35 Stat., 
 1146; sec. 5358, R. S.) 
 
 See section 1536, Revised Statutes, and act of August 1, 1912 (37 Stat., 242). 
 
 Sec. 299. [Breaking and entering vessel, etc.] Whoevc-r, upon 
 the high seas or on any other waters within the admiralty and maritime juris- 
 diction of the United States, and out of the jurisdiction of any particular State, 
 
 1352 
 
Criminal Code. 
 
 Pt. S. STATUTES AT LARGE. 
 
 Mar. 4, 1909. 
 
 breaks or enters any vessel, with intent to commit any felony, or maliciously 
 cuts, spoils, or destroys any cordage, cable, buoys, buoy-rope, head-fast, or 
 other fast, fixed to the anchor or moorings belonging to any vessel, shall be 
 fined not more than one thousand dollars and imprisoned not more than five 
 years.— (35 Stat., 1147; sec. 5362, R. S.) 
 
 Sec. 301. [Destroying vessel, etc.] Whoever, not being an owner, 
 upon the high seas or on any other waters within the admiralty and maritime 
 jurisdiction of the United States, willfully and corruptly casts away or other- 
 wise destroys any vessel of the United States to which he belongs, or, willfully, 
 with intent to destroy the same, sets fire to any such vessel, orother\vise attempts 
 the destruction thereof, shall be imprisoned not more than ten years. — (35 
 Stat., 1147; 28 Stat., 233; sees. 5366, 5367, R. S.) 
 
 See section 286, above, as to arson of vessel. 
 
 See section 310, below, for definition of " vessel of the United States." 
 
 Sec. 310. ["Vessel of the united states," defined.] The words 
 "vessel of the United States" wherever they occur in this chapter shall be 
 construed to mean a vessel belonging in whole or in part to the United States, 
 or any citizen thereof, or any corporation created by or under the laws of the 
 United States or of any State, Territory, or District thereof. — (35 Stat., 1148.) 
 
 Chapter Thirteen. 
 
 certain offenses in the territories [or elsewhere within 
 exclusive jurisdiction of the united states]. 
 
 THE 
 
 Sec. 
 
 311. Places within which sections of this 
 
 chapter shall apply. 
 
 312. Circulation of obscene literature; pro- 
 
 moting abortion. 
 
 Sec. 
 
 314. Unlawful cohabitation. 
 
 316. Adultery. 
 
 317. Incest. 
 
 318. Fornication. 
 
 Sec. 311. [Places within which Tins chapter shall apply.] Except 
 as otherwise expressly provided, the offenses defined in tliis chapter shall be 
 punished as hereinafter provided, when committed within any Territory or 
 District, or within or upon any place within the exclusive jurisdiction of the 
 United States.— (35 Stat., 1148-1149.) 
 
 Sec. 312. [Circulating obscene literature, etc.] Wlioever shall 
 sell, lend, give away, or in any manner exhibit, or offer to sell, lend, give away, 
 or in any manner exhibit, or shall otherwise publish or offer to publish in any 
 manner, or shall have in his possession for any such purpose, any obscene book, 
 pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or 
 other representation, figure, or image on or of paper or other material, or any 
 cast, instrument, or other article of an immoral nature, or any drug or medi- 
 cine, or any article whatever, for the prevention of conception, or for causing 
 unlawful abortion, or shall advertise the same for sale, or shall wTite or print, 
 or cause to be written or printed, any card, circular, book, pamplilet, adver- 
 tisement, or notice of any kind, stating when, where, how, or of whom, or 
 what means, any of the articles above mentioned can be purchased or obtained, 
 or shall manufacture, draw, or print, or in anywise make any of such articles, 
 shall be fined not more than two thousand dollars, or imprisoned not more 
 than five years, or both. — (35 Stat., 1149; sec. 5389, R. S.) 
 
 1353 
 
Mar. 4, 1909. Pt. S. STATUTES AT LARGE. Criminal Code. 
 
 Sec. 314. [Unlawful cohabitation.] If any male person cohabits with 
 more than one woman, he shall be fined not more than tliree hundred dollars, or 
 imprisoned not more than six months, or both. — (35 Stat., 1149; 22 Stat., 31.) 
 
 Sec. 3160. [Adultery.] Whoever shall commit adultery shall be im- 
 prisoned not more than three years; and when the act is committed between a 
 married woman and a man who is unmarried, both parties to such act shall be 
 deemed guilty of adultery; and when such act is committed between a married 
 man and a woman who is unmarried, the man shall be deemed guilty of adultery. 
 —(35 Stat., 1149; 24 Stat., 635.) 
 
 Sec. 317. [Incest.] Whoever, being related to another person within 
 and not including the fourth degree of consanguinity computed according to 
 the rules of the civil law, shall marry or cohabit with, or have sexual inter- 
 course with such other so related person, knowing her or him to be within said 
 degree of relationship, shall be deemed guilty of incest, and shall be imprisoned 
 not more than fifteen years. — (35 Stat., 1149; 24 Stat., 636.) 
 
 Sec. 318. [Fornication.] If any unmarried man or woman commits 
 fornication, each shall be fined not more than one hundred dollars, or im- 
 prisoned not more than six months. — (35 Stat., 1149; 24 Stat., 636.) 
 
 Chapter Fourteen, 
 general and special provisions. 
 
 Sec. 
 
 332. Who are principals. 
 
 333. Punishment of accessories. 
 
 334. Accessories to robbery or piracy. 
 
 335. Felonies and misdemeanors. 
 
 Sec. 
 
 336. Murder and manslaughter; place where 
 crime deemed to have been committed. 
 
 337. Construction of certain words. 
 
 338. Omission of words "hard labor" not to 
 deprive court of power to impose. 
 
 Sec. 332. [Principals defined.] Whoever directly commits any act 
 constituting an offense defined in any law of the United States, or aids, abets, 
 counsels, commands, induces, or procures its commission_, is a principal. — 
 (35 Stat., 1152; sees. 5323, 5427, R. S.) 
 
 Sec. 333. [Punishment of accessories.] Whoever, except as otherwise 
 expressly provided by law, being an accessory after the fact to the commission 
 of any offense defined in any law of the Unietd States, shall be imprisoned not 
 exceeding one-half the longest term of imprisonment, or fined not exceeding 
 one-half the largest fine prescribed for the punishment of the principal, or both, 
 if the principal is punishable by both fine and imprisonment; or if the principal 
 is punishable by death, then an accessory shall be imprisoned not more than ten 
 years. — (35 Stat., 1152; sees. 5533-5535, R. S.) 
 
 Sec. 334. [Accessories to robbery or piracy.] Whoever, without 
 lawful authority, receives or takes into custody any vessel, goods, or other 
 property, feloniously taken by any robber or pirate against the laws of the 
 United States, knowing the same to have been feloniously taken, and whoever, 
 knowing that such pirate or robber has done or committed any such piracy or 
 robbery, on the land or at sea, receives, entertains, or conceals any such pirate 
 or robber, is an accessory after the fact to such robbery or piracy, and shall be 
 imprisoned not more than ten years. — (35 Stat., 1152; sees. 5324, 5533, R. S.) 
 
 See section 288, above. 
 
 1354 
 
Pt. 3. STATUTES AT LARGE. April 12, 1910. 
 
 Sec. 335. [Felonies and misdemeanors.] All offenses which may be 
 punished by death, or imprisonment for a term exceeding one year, shall be 
 deemed felonies. All other offenses shall be deemed misdemeanors. — (35 
 Stat., 1152.) 
 
 Sec. 336. [Murder and manslaughter; place where committed.] 
 In all cases of murder or manslaughter, the crime shall be deemed to have been 
 committed at the place where the injury was inflicted, or the poison admin- 
 istered, or other means employed which caused the death, without regard to 
 the place where the death occurs. — -(35 Stat., 1152.) 
 
 Sec. 337. [Construction of certain words.] Words used in this title 
 in the present tense include the future as well as the present; words used in the 
 masculine gender include the feminine and neuter; the singular number includes 
 the plural, and the plural the singular; the word "person" and the word ''who- 
 ever" include a corporation as well as a natural person; writing includes print- 
 ing and typewriting, and signature or subscription includes a mark when 
 the person making the same intended it as such. The words "this title," 
 wherever they occur herein, shall be construed to mean this Act. — (35 Stat., 
 1152-1153.) 
 
 Sec. 338. [Hard labor.] The omission of the words "hard labor" from 
 the provisions prescribing the punishment in the various sections of this Act, 
 sliall not be construed as depriving the court of the power to impose hard labor 
 as a part of the punishment, in any case where such power now exists. — (35 
 Stat., 1153.) 
 
 [1909, Aug. 5. Premium on bonds.] Until otlierwise provided by law no 
 bond shall be accepted from any surety or bonding company for any officer or 
 employee of the United States wliich shall cost more than thirty-five per centum 
 in excess of the rate of premium charged for a like bond during the calendar 
 year nineteen hundred and eiglit : Provided, That hereafter the United States 
 shall not pay any part of the premium or other cost of furnisiiing a bond re- 
 quired by law or otherwise of any officer or employee of the United States. — 
 (36 Stat., 125-126, chap. 7.) 
 
 See sections 1383-1385, Revised Statutes, and 
 notes thereto; see also act of February 24, 
 1919, section 1320 (40 Stat., 1148), as to 
 
 acceptance of Liberty bonds, etc., in lieu 
 of surety bonds. 
 
 [1910, Apr. 12. Naval Academy Band.] That the Naval Academy Band 
 shall consist of one leader, who sliall have the pay and allowance of a second 
 lieutenant in the IViarine Corps; one second leader, with pay at the rate of fifty 
 dollars per month; twenty-nine musicians, first class, and eleven musicians, 
 second class; and shall be paid from "Pay of the navy." 
 
 Sec. 2. That the members of the Naval Academy Band as now organized 
 shall be enlisted in the navy and credited with all prior service of whatever 
 nature as members of said band, as showm by the records of the Naval Academy 
 and the pay rolls of the ships and academy; and the said leader and the enlisted 
 musicians of the band shall be entitled to the same benefits in respect to pay, 
 emoluments, and retirement arising from longevity, reenlistment, and length of 
 service as are, or may hereafter become, applicable to other enlisted men of the 
 navy: Provided, That no back pay shall be allowed to the leader or to any mem- 
 
 54641°— 22 so 1355 
 
June 9, 1910. 
 
 Pt.3. STATUTES AT LARGE. 
 
 ber of the said band by reason of the passage of this Act. — (36 Stat., 297, chap. 
 1.57.) 
 
 13, 1908 (35 Stat., 153), and June 3, 1916, 
 section 35 (39 Stat., 188), as to competi- 
 tion with ci\ ilian musicians. 
 
 See act of July 11, 1919 (41 Stat., 152), for 
 amendment to section one of this act; see 
 also notes to sections 1511 and 1569, Re- 
 vised Statutes; and see also acts of May 
 
 [1910, June 9. Regulation of motor boats on navigable waters.] That the 
 words '' motor boat " where used in this Act sliall include every vessel propelled 
 by machinery and not more than sixty-five feet in length except tug boats and 
 tow boats propelled by steam. The length shall be measured from end to end 
 over the deck, excluding sheer: Provided, That the engine, boiler, or other 
 operating machinery shall be subject to inspection by the local inspectors of 
 steam vessels, and to their approval of the design thereof, on all said motor 
 boats, wdiich are more than forty feet in length, and which are propelled by 
 machinery driven by steam. — (36 Stat., 462, chap. 268.) 
 
 Sec. 2. That motor boats subject to the provisions of this Act shall 
 be divided into classes as follows: 
 
 Class one. Less than twenty-six feet in length. 
 
 Class two. Twenty-six feet or over and less than fort}' feet in length. 
 
 Class three. Forty feet or over and not more than sixty-five feet in length. — 
 (36 Stat., 462, chap. 268.) 
 
 Sec. 3. That every motor boat in all weathers from sunset to sunrise shall 
 carry the following hghts, and during such time no other lights which may be 
 mistaken for those prescribed shall be exhibited. 
 
 (a) Every motor boat of class one shall carry the following lights : 
 First. A white light aft to show all around the horizon. 
 
 Second. A combined lantern in the fore part of the vessel and lower than 
 the white light aft showing green to starboard and red to port, so fixed as to 
 throw the light from right ahead to tw^o points abaft the beam on their respec- 
 tive sides. 
 
 (b) Every motor boat of classes two and three shall carry the following 
 lights : 
 
 First. A bright white light in the fore part of the vessel as near the stem 
 as practicable, so constructed as to show an unbroken light over an arc of the 
 horizon of twent}^ points of the compass, so fixed as to throw the light ten points 
 on each side of the vessel, namely, from right ahead to two points abaft the beam 
 on either side. The glass or lens shall be of not less than the following dimen- 
 sions : 
 
 Class two. Nineteen square inches. 
 
 Class three. Thirty-one square inches. 
 
 Second. A white light aft to show all around the horizon. 
 
 Third. On the starboard side a green light so constructed as to show an 
 unbroken light over an arc of the horizon of ten points of the compass, so fixed 
 as to throw the light from right ahead to two points abaft the beam on the 
 starboard side. On the port side a red light so constructed as to show an un- 
 broken light over an arc of the horizon of ten points of the compass, so fixed as 
 to throw the light from right ahead to two points abaft the beam on the port 
 
 1356 
 
Pi. 3. STATUTES AT LARGE. June 9, 1910. 
 
 side. The glasses or lenses in the said side lights shall be of not less than the 
 following dimensions on motor boats of — - 
 
 Class two. Sixteen square inches. 
 
 Class three. Twenty-five square inches. 
 
 On and after July first, nineteen hundred and eleven, all glasses or lenses 
 prescribed by paragraph (b) of section three shall be fresnel or fluted. The 
 said lights shall be fitted with inboard screens of sufficient height and so set as 
 to prevent these lights from being seen across the bow and shall be of not less 
 than the following dimensions on motor boats of — 
 
 Class two. Eighteen inches long. 
 
 Class three. Twenty-four inches long: Provided, That motor boats as de- 
 fined in this Act, when propelled by sail and machinery or under sail alone, 
 shall carry the colored lights suitably screened but not the white lights pre- 
 scribed by this section.— (36 Stat., 462-463, chap. 26S.) 
 
 Sec. 4. (a) Every motor boat under the provisions of this Act shall ])e 
 provided with a wliistle or other sound-producing mechanical appliance capable 
 of producing a blast of two seconds or more in duration, and in the case of such 
 boats so provided a blast of at least two seconds shall be deemed a prolonged 
 blast within the meaning of the law\ 
 
 (b) Every motor boat of class two or three shall carry an efficient fog horn. 
 
 (c) Every motor boat of class two or tliree shall be provided with an 
 efficient bell, which shall be not less than eight inches across the motith on 
 board of vessels of class three. — (36 Stat., 463, chap. 268.) 
 
 Sec. 5. That every motor boat subject to any of the provisions of this Act, 
 and also all vessels propelled by machinery other than by steam more than 
 sixty-five feet in length, shall carry either life-preservers of life belts, or buoyant 
 cushions, or ring buoys or other device, to be prescribed by the Secretary of 
 Commerce * * * sufficient to sustain afloat every person on board and 
 so placed as to be readily accessible. * * *. — (36 Stat., 463, chap. 268.) 
 
 Sec. 6. That every motor boat and also every vessel propelled by machinery 
 other than by steam, more than sixty-five feet in length, shall carry ready for 
 immediate use the means of promptly and effectuall}" extinguishing burnhig 
 gasoline.— (36 Stat., 463, chap. 268.) 
 
 Sec. 7. That a fine not exceeding one hundred dollars may be imposed for 
 any violation of this Act. The motor boat shall be liable for the said penalty 
 and may be seized and proceeded against, by way of libel, in the district court 
 of the United States for any district within which such vessel may be foinid.^ 
 (36 Stat., 463, chap. 268.) 
 
 Sec. 8. That the Secretary of Commerce * * * shall make such 
 regulations as may be necessary to secure the proper execution of this Act by 
 collectors of customs and other officers of the Government. And the Secretary 
 of the Department of Commerce * * * may, upon application therefor, 
 remit or mitigate any fine, penalty, or forfeiture relating to motor boats except 
 for failure to observe the provisions of section six of this Act. — (36 Stat., 463, 
 chap. 268.) 
 
 Sec. 9. That all laws and parts of laws only in so far as they are in conflict 
 herewith are hereby repealed: Provided, That nothing in this Act shall be 
 
 1357 
 
June 24, 1910. Pt. S. STATUTES AT LARGE. 
 
 deemed to alter or amend Acts of Congress embodying or revising international 
 rules for preventing collisions at sea. — (36 Stat., 4G3, ehap. 268.) 
 
 See sections 42:53 and 4412, Revised Statutes, 8, 1895 (28 Stat., tJ45); June 7, 1897 (30 Stat., 
 
 and notes thereto; see also acts of Fel)ruary 
 
 9(5); and Autjust 19, 1890 (2G Stat., 320). 
 
 [1910, June 17, sec. 4. — Supplies for executive departments, etc.] That 
 hereafter all supplies of fuel, ice, stationery, and other miscellaneous supplies 
 for the executive departments and other government establishments in Wash- 
 ington, when the public exigencies do not require the immediate delivery of the 
 article, shall be advertised and contracted for by the Secretary of the Treasury, 
 instead of by the several departments and establishments, upon such days as he 
 may designate. There shall be a general supply committee in lieu of the board 
 provided for in section thirty-seven hundred and nine of the Revised Statutes 
 as amended, composed of ofTicers, one from each such department, designated 
 by the head thereof, the duties of wliich committee shall be to make, under the 
 direction of the said Secretary, an annual schedule of required miscellaneous 
 supplies, to standardize such supplies, eliminating all unnecessar}^ grades and 
 varieties, and to aid said Secretary m solicithig bids based upon formulas and 
 specifications drawn up by such experts m the service of the Government as 
 the committee may see fit to call upon, who shall render whatever assistance 
 they may require. The committee shall aid said Secretary in securing the 
 proper fulfillment of the contracts for such supplies, for which purpose the said 
 Secretary shall prescribe, and all departments comply with, rules providing 
 for such examination and tests of the articles received as may be necessary for 
 such purpose ; in making additions to the said schedule ; in opening and consid- 
 ering the bids, and shall perform such other similar duties as he .may assign to 
 them: Provided, That the articles intended to be purchased in this manner 
 are those in common use by or suitable to the ordinary needs of two or more 
 such departments or establishments; but the said Secretary shall have dis- 
 cretion to amend the annual common supply schedule from time to time as to 
 any articles that, m his judgment, can as well be thus purchased. In all cases 
 only one bond for the proper performance of each contract shall be required, 
 notwithstanding that supplies for more than one department or government 
 establishment are included in such contract. Every purchase or drawing of 
 such supplies from the contractor shall be immediately reported to said com- 
 mittee. No disbursing officer shall be a member of such committee. No 
 department or establishment shall purchase or draw supplies from the common 
 schedule through more than one office or bureau, except m case of detached 
 bureaus or offices having field or outlying service, which may purchase directly 
 from the contractor with the permission of the head of their department: 
 And provided further, That telephone service, electric light, and power service 
 purchased or contracted for from companies or individuals shall be so obtained 
 by him.— (36 Stat., 531, chap. 297.) 
 
 See section 3709, Revised Statutes, and act of March 2, 1907 (34 Stat., 1193). 
 
 [1910, June 24. Collision claims, adjustment of; report to Congress.] The 
 Secretary of the Navy is hereby authorized to consider, ascertain, adjust and 
 determine the amounts due on all claims for damages, where the amount of the 
 claim does not exceed the sum of five hundred dollars, hereafter occasioned by 
 
 1358 . . 
 
Pt. 3. STATUTES AT LARGE. 
 
 June 25, 1910. 
 
 claims which the Government is not in law 
 bound to pay, however much they may be 
 urged to do so by claimants who feel aggrieved 
 by the tortious conduct of public officers. 
 An executive department is not the place to 
 apply for redress of grievances not founded 
 on legal rights. (Pitman v. U. S., 20 Ct. Cls., 
 256.)' 
 
 The head of an executive department is not 
 authorized to pay the actual expenses of repair- 
 ing a vessel injured in a collision \nth a Govern- 
 ment vessel, the claim arising from the collision 
 being one for unliquidated damages caused by 
 the tort of the Government's officers. (1 Comp. 
 Dec, 261.) 
 
 It seems to be the approved practice to com- 
 mit such claimants to the tender mercies of 
 Congress for settlement. (1 Comp. Dec, 285.) 
 
 See note to section 236, Revised Statutes. 
 
 collision, for which collisions vessels of the navy shall be found to be responsible, 
 and report the amounts so ascertained and determined to be due the claimants 
 to Congress at each session thereof through the Treasury Department for 
 payment as legal claims out of appropriations that may be made by Congress 
 therefor.— (36 Stat., 607, chap. 378.) 
 
 See act of July 1, 1918 (40 Stat., 705), author- 
 izing Secretary of the Navy to adjust and 
 pay any claim not exceeding SI, 000, for 
 damages to inhabitants to certain European 
 countries; see also act of April 18, 1918 
 (40 Stat., 532). 
 
 See act of July 11, 1909 (41 Stat., 132), author- 
 izing the Secretary of the Navy to adjust 
 and pay claims for damages other than 
 those occasioned by vessels of the Navy, 
 where amount does not exceed ?500. 
 
 See act of June 4, 1920 (41 Stat., 814), author- 
 izing Secretary of the Navy to adjust and 
 pay claims not exceeding S500 for damages 
 caused by operations of naval aircraft. 
 (A similar pro^'ision was contained in act 
 of July 11, 1919, 41 Stat., 133). 
 Claims for damages. — It is not within the 
 
 official duties of the head of any department to 
 
 make estimates for appropriations to pay 
 
 [1910, June 24. Loan of equipment to military schools.] That the act en- 
 titled "An act to authorize the Secretary of the Navy to loan naval ec^uipment to 
 certain military schools," approved March third, nineteen hundred and one, be 
 amended by striking out the words "one hundred and forty cadets" and insert- 
 ing in lieu thereof the words "seventy-five cadets over fifteen years of age." — 
 (36 Stat., 613, chap. 378.) 
 
 See act of March 3, 1901 (31 Stat., 1440), as amended by act of June 29, 1906 (34 Stat., 620). 
 
 [1910, June 24. Detail of line under staflf officers.] That line officers may 
 be detailed for duty under staff officers in the manufacturing and repair depart- 
 ments of the navy-yards and naval stations, and all laws or parts of laws in con- 
 flict herewith are hereby repealed. — (36 Stat., 614, chap. 378.) 
 See notes to sections 1404 and 1488, Revised Statutes. 
 
 [1910, June 24. Profit on sales from ships' stores.] That hereafter a profit 
 
 not to exceed fifteen per centum may be charged on sales from ships' stores, such 
 
 profit to be expended in the discretion of the Secretary of the Navy, under such 
 
 regulations as he may prescribe, for the amusement, comfort, and contentment 
 
 of the enlisted force, and to be accounted for to the Bureau of Supplies and 
 
 Accounts, Navy Department. — (36 Stat., 619, chap. 378.) 
 
 See act of March 3, 1909, (35 Stat., 768), and | is mthout jurisdiction to render a decision as to 
 section 3689, Revised Statutes. 
 Jurisdiction of accounting officers. — In 
 \'iew of the wording of this enactment, pro\'id- 
 ing for an accounting to the Bureau of Supplies 
 and Accounts, the Comptroller of the Treasury 
 
 the legality of proposed expenditures from the 
 fund created bv ships' stores profits. (Comp. 
 Dec, Apr. 28, 1915, file 26254-1759:2; see note 
 tosec. 236, R. S.) 
 
 [1910, June 25. Detail of employees from Government Printing Office.] 
 Hereafter no employee of the Government Printing Office shall be detailed to 
 duties not pertaining to the work of public printing and binding in any execu- 
 
 1359 
 
Mar. 3, 1911. Ft. S. STATUTES AT LARGE. Judicial Code. 
 
 tive department or other government establishment unless expressly authorized 
 by law.— (36 Stat., 770, chap. 384.) 
 
 See act of January 12, 1895, section 18 (28 Stat., 603). 
 
 [1910, June 25, sec. 6. Annual report, sales of old material, etc.] Here- 
 after the statement of the proceeds of all sales of old material, condemned stores, 
 supplies, or other public property of any kmd shall be submitted to Congress 
 at the beginning of each regular session thereof as a separate communication 
 and shall not hereafter be included in the annual Book of Estimates. — (36 Stat., 
 773, chap. 384.) 
 
 See sections 429, 430, 1541, and 3672, Revised Statutes, and notes thereto. 
 
 [1910, June 25. Patents, protection of owners; suit in Court of Claims.] 
 That whenever an invention described in and covered by a patent of the United 
 States shall hereafter be used or manufactured by or for the United States 
 without license of the owner thereof or lawful right to use or manufacture the 
 same, such owner's remedy shall be by suit against the United States in the 
 Court of Claims for the recovery of his reasonable and entire compensation for 
 such use and manufacture : Provided, Jiowever, That said Court of Claims shall 
 not entertain a suit or award compensation under the provisions of this Act where 
 the claim for compensation is based on the use or manufacture by or for the 
 United States of any article heretofore owned, leased, used by, or in the pos- 
 session of the United States: Provided further, That in any such suit the United 
 States may avail itself of any and all defenses, general or special, that might 
 be pleaded by a defendant in an action for infringement, as set forth in Title 
 Sixty of the Revised Statutes, or otherwise : And provided further, That the 
 benefits of this Act shall not inure to any patentee who, when he makes such 
 claim, is in the employment or service of the Government of the United States, 
 or the assignee of any such patentee; nor shall this act apply to any device dis- 
 covered or invented by such employee during the time of his employment or 
 service.— (36 Stat., 851-852, chap. 423; 40 Stat., 705, chap. 114.) 
 
 utes; see also act of October 6, 1917, section 
 
 This act was expressly amended and reenacted 
 to read as above bv act of Julv 1, 1918 
 (40 Stat., 705). 
 
 See notes to Constitution, Article I, section 8, 
 clause 8; and section 4894, Revised Stat- 
 
 10 (i) (40 Stat., 422). 
 As to jurisdiction of Court of Claims, see act 
 of March 3, 1911, sections 145-150 (36 Stat., 
 1136-1138). 
 
 [1911, Mar. 1. Discrimination against the uniform; penalty.] That here- 
 after no proprietor, manager, or employee of a theater or other public place of 
 entertainment or amusement in the District of Columbia, or in any Territory, 
 the District of Alaska or Insular possession of the United States, shall make, or 
 cause to be made, any discrimination against any person lawfully wearing the 
 uniform of the Army, Navy, Revenue-Cutter Service or Marine Corps of the 
 United States because of that uniform, and any person making, or causing to 
 be made, such discrimination shall be guilty of a misdemeanor, punishable by a 
 fine not exceeding five hundred dollars. — (36 Stat., 963-964, chap. 187.) 
 
 See act of June 3, 1916, section 125 (39 Stat., 216), as to unauthorized wearing of the uniform. 
 
 [1911, Mar. 3. Judicial Code.] That the laws relating to the judiciary be, 
 and they hereby are, codified, revised, and amended, with title, chapters, head- 
 
 1360 
 
Judicial Code. 
 
 Ft. 3. STATUTES AT LARGE. 
 
 Mar. 3, 1011. 
 
 notes, and sections, entitled, numbered, and to read as follows: — (36 Stat., 1087, 
 chap. 231.) 
 
 See notes to section 1624, Kevised Statutes, as 
 to jurisdiction of civil courts over court- 
 martial proceedings. 
 
 See Criminal Code, act of March 4, 1909 (35 
 Stat., 1088-1153), for offenses by persons in 
 naval ser^'ice punishable by ci\dl courts. 
 
 See sections 751, etseq., Re\'ised Statutes, as to 
 jurisdiction of ci\'il courts by habeas corpus 
 proceedings over persons held by naval 
 authority. 
 
 See, generally, sections 751-1023, Re^■ised Stat- 
 utes, under the title, "The Judiciary." 
 
 That military and naval courts form no part of 
 the judicial system of the United States, 
 but are instrumentalities of the executive 
 branch of the Government, sea cases noted 
 imder the Constitution. Article I, section 
 8, clause 9. 
 
 See note to Constitution, Article I, section 8, 
 clause 9, for brief explanation of the judi- 
 cial system of the United States; see also 
 "Introduction," ante, under "IV. Deci- 
 sions of the courts, opinions of law officers of 
 the Government, regulations, etc." 
 
 See note to Constitution, Article I, section 8, 
 clause 11, as to jurisdiction of ci\-il coiu-ts 
 over the military forces in time of war. 
 
 See notes to Constitution, Article I, section 8, 
 clauses 13-14, as to jurisdiction of ci^il 
 authorities over the military forces in time 
 of peace. 
 
 See note to Constitution, Article II, section 1, 
 clause 1, and notes to sections 236, 416, 417, 
 and 868, RoAised Statutes, as to jurisdic- 
 tion of ci\dl courts over the President, 
 heads of departments, and other officers of 
 the executive departments. 
 
 Sec. 24. [district courts ; claesis against united states.] The district 
 courts shall have original jurisdiction as follows: * * *. — (36 Stat., 1091; 
 sees. 563, 629, R. S.) 
 
 Twentieth. Concurrent with the Court of Claims, of all claims not exceeding 
 ten thousand dollars founded upon the Constitution of the United States or any 
 law of Congress, or upon any regulation of an executive department, or upon 
 any contract, express or implied, with the Government of the United States, or 
 for damages, liquidated or unliquidated, in cases not sounding in tort, in respect 
 to which claims the party would be entitled to redress against the United States, 
 either in a coiu"t of law, equity, or admiralty, if the United States were suable, 
 and of all set-offs, cotmterclaims, claims for damages, whether liquidated or 
 unliquidated, or other demands whatsoever on the part of the Government of 
 the United States against any claimant against the Government in said court: 
 Provided, however, That nothing in this paragraph shall be construed as giving 
 to either the district courts or the Court of Claims jurisdiction to hear and 
 determine claims growing out of the late Civil War, and commonly known as 
 ''war claims," or to hear and determine other claims which had been rejected 
 or reported on adversely prior to the third day of March, eighteen hundred and 
 eighty-seven, by any court, department, or commission authorized to hear and 
 determine the same, or to hear and determine claims for pensions ; or as giving 
 to the district courts jmisdiction of cases brought to recover fees, salary, or 
 compensation for official services of officers of the United States or brought for 
 such purpose by persons claiming as such officers or as assignees or legal repre- 
 sentatives thereof; but no suit pending on the twenty-seventh day of June, 
 eighteen hundred and ninety-eight, shall abate or be affected by this provision: 
 And provided further, That no suit against the Government of the United States 
 shall be allowed under this paragraph unless the same shall have been brought 
 within six years after the right accrued for which the claim is made : Provided, 
 That the claims of married women, first accrued during marriage, of persons 
 imder the age of twenty-one years, first accrued during minority, and of idiots, 
 lunatics, insane persons, and persons beyond the seas at the time the claim 
 accrued, entitled to the claim, shall not be barred if the suit be brought within 
 
 1361 
 
Mar. 3, 1911, 
 
 Ft. 3. STATUTES AT LARGE. 
 
 Judicial Code. 
 
 three years after the disabihty has ceased; but no other disabihty than those 
 enumerated shall prevent any claim from being barred, nor shall any of the said 
 disabilities operate cumulatively. All suits brought and tried under the pro- 
 visions of this paragraph shall be tried by the court without a jury. — (36 Stat., 
 1093; 24 Stat., 505; 30 Stat., 495; 31 Stat., 33.) 
 
 Sec. 145. [court of cl.vims; jurisdiction; relief of disbursing offi- 
 cers, ETC.] The Court of Claims shall have jurisdiction to hear and determine 
 the following matters: 
 
 First. All claims (except for pensions) founded upon the Constitution of 
 the United States or any law of Congress, upon any regulation of an Executive 
 Department, upon any contract, express or implied, with the Government of the 
 United States, or for damages, liquidated or unliquidated, in cases not sounding 
 in tort, in respect of which claims the party would be entitled to redress against 
 the United States either in a court of law, equity, or admiralty if the United States 
 were suable : Provided, however, That nothing in this section shall be construed 
 as giving to the said com't jurisdiction to hear and determine claims growing 
 out of the late civil war, and commonly known as ''war claims," or to hear and 
 determine other claims which, prior to March third, eighteen hundred and 
 eighty-seven, had been rejected or reported on adversely by any court, depart- 
 ment, or commission authorized to hear and determine the same. 
 
 Second. All set-offs, counterclaims, claims for damages, whether liquidated or 
 unliquidated, or other demands whatsoever on the part of the Government of 
 the United States against any claimant against the Government in said court: 
 Provided, That no suit against the Government of the United States, brought 
 by any officer of the United States to recover fees for services alleged to have 
 been performed for the United States, shall be allowed imder this chapter until 
 an account for said fees shall have been rendered and finally acted upon as 
 required by law, unless the proper accounting officer of the Treasury fails to 
 act finally thereon within six months after the account is received in said office. 
 
 Third. The claim of any paymaster, quartermaster, commissary of sub- 
 sistence, or other disbursing officer of the United States, or of his administrators 
 or executors, for relief from responsibility on account of loss by capture or other- 
 wise, while in the line of his duty, of Government funds, vouchers, records, or 
 papers in his charge, and for which such officer was and is held responsible. — 
 (36 Stat., 1136-1137; 24 Stat., 505.) 
 
 See note to section 236, Revised Statutes, as to 
 jurisdiction of Court of Claims and the 
 accounting officers of the Treasury. 
 
 See act of .June 25, 1910 (36 Stat., 851-852); as 
 amended and reenacted by act of .Tuly 1, 
 1918 (40 Stat., 705), as to jurisdiction in 
 patent cases. 
 
 See act of .Tuly 11, 1919 (41 Stat., 132), as to 
 disl)ursing officers being relieved of respon- 
 sibility, without proceedings in the Court 
 of Claims, where loss occurred in line of 
 duty, etc. 
 
 See section 147, below. 
 Jurisdiction limited to money demands. — 
 
 Where it was provided by law that retired 
 
 officers who had served during the Ci\'il War 
 
 should be entitled to the rank and retired pay 
 
 of the next higher gi'ade, and the Navy De- 
 partment decided that a particular officer was 
 not entitled to the benefits of the act, a decision 
 of the Court of Claims (Moser v. U. S., 42 Ct. 
 Cls., 86), allowing the officer the retired pay of 
 the next higher grade, and purporting to decide 
 that he was also entitled to the rank of such 
 higher grade, did not estop the Secretary of 
 the Navy from contesting the officer's claim to 
 the rank of such higher grade. The judgment 
 of the court was one for money onlv. (Moser 
 V. Meyer, 38 App. D, C, 13; see also 28 Op. 
 Atty. Gen., 352.) 
 
 Same act, 41 Stat., 153, was limited to losses 
 incurred during the "present emergency." 
 See also section 285, Revised Statutes, and 
 notes to sections 176 and 236, Revised Statutes. 
 
 1362 
 
Judicial Code. Pt. 3. STATUTES AT LARGE. Mar. 3, 1911. 
 
 Sec. 146. [Determixatiox of counter-claims, etc.] Upon the trial 
 of any cause in which any set-off, counter-claim, claim for damages, or other 
 demand is set up on the part of the Government against any person making 
 claim against the Government in said court, the court shall hear and determine 
 such claim or demand both for and against the Government and claimant; 
 and if upon the whole case it finds that the claimant is indebted to the Govern- 
 ment it shall render judgment to that effect, and such judgment shall be final, 
 with the right of appeal, as in other cases provided for by law. Any transcript 
 of such judgment, filed in the clerk's office of any district court, shall be entered 
 upon the records thereof, and shall thereby become and be a judgment of such 
 court and be enforced as other judgments in such court are enforced. — (36 
 Stat., 1137; Sec. 1061, R. S.) 
 
 See note to section 236, Revised Statutes, under "VI. Set-off;" 
 
 Sec. 147. [Decree on accounts of disbursing officers.] Whenever 
 the Court of Claims ascertains the facts of any loss by any paymaster, quarter- 
 master, commissary of subsistence, or other disbursing officer, in the cases 
 hereinbefore provided, to have been without fault or negligence on the part of 
 such officer, it shall make a decree setting forth the amount thereof, and upon 
 such decree the proper accounting officers of the Treasury shall allow to such 
 officer the amount so decreed as a credit in the settlement of his accounts. — 
 (36 Stat., 1137; Sec. 1062, R. S.) 
 
 See section 145, above. 
 
 Sec. 148. [Claims referred by departments.] Wlien any claim or 
 matter is pending in any of the executive departments which involves contro- 
 verted questions of fact or law, the head of such department may transmit the 
 same, with the vouchers, papers, documents, and proofs pertaining thereto, 
 to the Court of Claims, and the same shall be there proceeded in under such 
 rules as the court may adopt. When the facts and conclusions of law shall 
 have been found, the court shall report its findings to the department by which 
 it was transmitted for its guidance and action: Provided, however, That if it 
 shall have been transmitted with the consent of the claimant, or if it shall 
 appear to the satisfaction of the court upon the facts established, that under 
 existing laws or the provisions of this chapter it has jurisdiction to render 
 judgment or decree thereon, it shall proceed to do so, in the latter case giving 
 to either party such further opportunity for hearing as in its judgment justice 
 shall require, and shall report its findings therein to the department by which 
 the same was referred to said court. The Secretary of the Treasury may, 
 upon the certificate of any auditor, or of the Comptroller of the Treasury, 
 direct any claim or matter, of which, by reason of the subject matter or char- 
 acter, the said court might under existing laws, take jurisdiction on 'the volun- 
 tary action of the claimant, to be transmitted, with all the vouchers, papers, 
 documents and proofs pertaining thereto, to the said court for trial and adju- 
 dication.— (36 Stat., 1137-1138; Sec. 1063, R. S.; 22 Stat., 485; 24 Stat., 507.) 
 
 "Claim or matter" construed. — The fendants, and in which there is a money de- 
 language of sections 148 and 149 of the Judicial mand. (Proposed reference by Secretary of 
 Code contemplates the reference by a head of a Navy, 53 Ct. Cls., 370.) 
 
 department of a matter in which there is a The word "matter" appearing in section 
 
 claimant, to which the United States are de- 148 does not vary the character of the claim 
 
 1363 
 
Mar. 3, 1911. 
 
 Pt. S. STATUTES AT LARGE. 
 
 Judicial Code. 
 
 which is required to be pending in the depart- 
 ment or in anv-Avise extend the power of the 
 court, because in any event the c laim or matter 
 must be one of which the court wouhl have 
 jurisdiction upon the vohmtary action of the 
 claimant seekin<:; a judirment for money, ex- 
 cept as the bar of the statute of limitations may 
 be affected. (Proposed reference bv Secre- 
 tary of Navy, 53 Ct. Cls., 370.) 
 
 A claim or matter pending in a department 
 which involves any controverted questions of 
 fact or law, in order to be transmitted to the 
 court under the provisions of section 148, must 
 be one for the "guidance and action" of said 
 department, and not one that is to be merely 
 advisorv. (Proposed reference by Secretary 
 of Navy, 53rt. Cls., 370.) 
 
 Under section 148, the Court of Claims has 
 not jurisdiction, upon reference of the Secre- 
 tary of the Navy, to report its conclusions of 
 law upon the questions, First, "Was the Ap- 
 pointment of Albert A. Ilooper as a chief ma- 
 chinist in the Navy on April 30, 1917, a valid 
 and lawful appointment, and is his status 
 under such appointment that of a chief ma- 
 chinist in the Navy?" and, second, "From 
 what date is Albert A. Hooper entitled to take 
 rank as chief machinist in the Navy under his 
 
 appointment of April 30, 1917, or if said ap- 
 pointment is held contrary to law and ineffec- 
 tual to confer upon the aforesaid Hooper the 
 office of chief machinist in the Navy, upon 
 what date is he entitled to take rank upon the 
 issuance of a valid and effectual appointment? ' ' 
 (Proposed reference by Secretary of Navy, 53 
 Ct. Cls., 370. See also note to sec. 1562, R. S.) 
 The opinions and decisions of the court must 
 be left to speak for themselves; if the constuc- 
 tion of a statute is different in the executive 
 and judicial branches, the fact but accentuates 
 the necessity for each of them observing the 
 limitations of its powers. Accordingly, held, 
 that where a claim has been finally disposed of 
 by the Court of Claims upon suit by the claim- 
 ant, the same can not be reopened upon appli- 
 cation of the claimant, nor indirectly pre- 
 sented again for consideration upon the appli- 
 cation of the head of a department under sec- 
 tion 148, Judicial Code. It would be alike 
 unbecoming the court and the head of the de- 
 partment for the one to accept or the other to 
 extend an invitation for a debate relative to 
 such decisions. (Proposed reference by Sec- 
 retary of Navy, 53 Ct. Cls., 370; see also Hooper 
 V. U. S., 53 Ct. Cls., 90; and file 26280-95:2, 
 Mar. 22, 1918.) 
 
 Sec. 149. [Procedure in cases referred by departments.] All 
 cases transmitted by the head of any department, or upon the certificate of 
 any auditor, or of the Comptroller of the Treasury, according to the provisions 
 of the preceding section, shall be proceeded in as other cases pending in the 
 Court of Claims, and shall, in all respects, be subject to the same rules and 
 regulations.— (36 Stat., 1138; sec. 1064, R. S.) 
 
 See note to preceding section. 
 
 Sec. 150. [Payment of judgments, cases referred by departments.] 
 The amount of any final judgment or decree rendered in favor of the claimant, 
 in any case transmitted to the Court of Claims under the two preceding sec- 
 tions, shall be paid out of any specific appropriation applicable to the case, if 
 any such there be; and where no such appropriation exists, the judgment or 
 decree shall be paid in the same manner as other Judgments of the said court. — 
 (36 Stat., 1138; sec. 1065, R. S.) 
 
 Sec. 163. [Commissioners to take testimony.] The Court of Claims 
 shall have power to appoint commissioners to take testimony to be used in 
 the investigation of claims which come before it, to prescribe the fees which 
 they shall receive for their services, and to issue commissions for the taking of 
 such testimony, whether taken at the instance of the claimant or of the United 
 States.— (36 Stat., 1140; sec. 1075, R. S.) 
 
 See sections 188 and 868 et seq., Revised Statutes, and notes thereto. 
 
 Sec. 164. [Calls on departments for information and records.] The 
 said court shall have power to call upon any of the departments for any in- 
 formation or papers it may deem necessary, and shall have the use of all 
 recorded and printed reports made by the committees of each House of Congress, 
 when deemed necessary in the prosecution of its business. But the head of 
 any department may refuse and omit to comply with any call for information 
 
 1364 
 
Judicial Code. Pt. 3. STATUTES AT LARGE. Mar. 3, 1911. 
 
 or papers when, in his opinion, such comphance would be injurious to the 
 pubhc interest.— (36 Stat., 1140; sec. 1076, R. S.) 
 
 See sections 188 and 882, Re\daed Statutes; and see note to section 418, Revised Statutes, 
 under "Records of department." 
 
 Sec. 175. [New trial ox motion of United States.] The Court of 
 Claims, at any time while any claim is pending before it, or on appeal from it, 
 or within two years next after the final disposition of such claim, may, on 
 motion, on behalf of the United States, grant a new trial and stay the payment 
 of any judgment therein, upon such evidence, cumulative or otherwise, as shall 
 satisfy the court that any fraud, wrong, or injustice in the premises has been 
 done to the United States; but until an order is made staying the payment of 
 a judgment, the same shall be payable and paid as now provided by law. — 
 (36 Stat., 1141; sec. 1088, R. S.) 
 
 See sections 242-243, below, as to appeals. 
 
 Sec. 227. [Supreme Court reports and digests; distribution of.] 
 The Attorney General shall distribute copies of the Supreme Court reports as 
 follows: To * * * the Secretary of the Navy, * * * each Assistant 
 Secretary of each Executive Department, * * * the Judge Advocate 
 General, Navy Department, * * * ^he Naval Academy at An- 
 napolis, * * * and the heads of such other executive offices as may be 
 provided by law, of equal grade with any of said offices, each one copy; * * *. 
 He shall also distribute one complete set of said reports, and one 'set of the 
 digests thereof, to such executive officers as are entitled to receive said reports 
 under this section and have not already received them, * * *^ Such reports 
 and digests shall remain the property of the United States, and shall be preserved 
 by the officers above named and by them turned over to their successors in 
 office.— (36 Stat., 1154-1155; sec. 683, R. S.; 32 Stat., 630.) 
 
 See act of January 12, 1895, section 74 (28 Stat., 620). 
 
 Sec. 242. [Appeals from Court of Claims.] An appeal to the Supreme 
 Court shall be allowed on behalf of the United States, from all judgments of 
 the Court of Claims adverse to the United States, and on behalf of the plaintiff 
 in any case where the amount in controversy exceeds three thousand dollars, 
 or where his claim is forfeited to the United States by the judgment of said 
 court as provided in section one hundred and seventy-two. — (36 Stat., 1157; 
 sec. 707, R. S.) 
 
 Section 172 relates to claims forfeited for fraud. 
 
 See section 175, above, as to new trials in Court of Claims. 
 
 Sec. 243. [Time of appeals.] All appeals from the Court of Claims 
 shall be taken withui ninety days after the judgment is rendered, and shall 
 be allowed under such regulations as the Supreme Court may direct. — (36 Stat., 
 1157; sec. 708, R. S.) 
 
 [1911, Mar. 4. Direct and indirect charges included in cost of work; 
 annual report to Congress.] That hereafter, in fixing the cost of work under 
 the various naval appropriations, the direct and indirect charges incident 
 thereto shall be included in such cost: And provided further, That the Bureau 
 
 1365 
 
Mar. 4, 1911. 
 
 Pt. S. STATUTES AT LARGE. 
 
 of Supplies and Accounts shall keep the money accounts of the Naval Estab- 
 lishment in such manner as to show such charges and shall report the same 
 annually for the information of Congress. — (36 Stat., 1267, chap. 239.) 
 
 A slisrhtlv different pro^'ision was contained in 
 the act of June 24, 1910 (36 Stat., 607). 
 
 See act of June :50, 1014 (38 Stat., 413-114), 
 as to distribution of overhead charges. 
 
 See section 429, Re\-ised Statutes, and note 
 thereto, as to reports required to be made 
 to Conc:ress; and see note to section 419, 
 Re^-ised Statutes, as to duties of the Bureau 
 of Supplies and Accounts (formerly the 
 Bureau of Provisions and Clothing). 
 
 [1911, Mar. 4. Former engineer officers made additional numbers.] That 
 officers on the active list of the line of the United States Navy who, under 
 authority of law, now perform engineering duty on shore only are hereby made 
 additional to the numbers in the grades in which they are now serving, and 
 shall be carried as additional to the numbers of each grade to which they may 
 hereafter be promoted: Provided, That said officers shall be entitled to all 
 the benefits of retirement under existing or future laws equally with other officers 
 of like rank and service. — (36 Stat., 1267, chap. 239.) 
 
 See notes to sections 1363, and 1390-1394, 
 Re\'ised Statutes. 
 
 Former officers of the Engineer Corps who 
 were restricted by act of March 3, 1899 
 (30 Stat., 1004), to engineering duty on 
 shore only, are now made available by 
 
 law for any shore duty compatible with 
 their rank and grade. ( See acts of June 30, 
 1914, 38 Stat., 394, and Mar. 3, 1915, 38- 
 Stat., 930, noted under sections 1390 and 
 1404, R. S.) 
 
 This pro\'ision is now inapplicable to officers of 
 the rank of lieutenant commander and 
 above. (See act of Aug. 29, 1916, 39 Stat., 
 579, as amended by act of July 1, 1918, 40 
 Stat., 718.) 
 
 [1911, Mar. 4. Officers failing physically for promotion, retired in higher 
 rank.] Hereafter, if any officer of the United States Navy shall fail in his 
 physical examination for promotion and be found incapacitated for service by 
 reason of physical disability contracted in the line of duty, he shall be retired 
 with the rank to which his seniority entitled him to be promoted. — (36 Stat., 
 1267, chap. 239.) 
 
 See note to section 1457, ReWsed Statutes, 
 under ' ' Rank on retii-ement of officer fail- 
 ing to qualify for promotion;" and see sec- 
 tions 1588-1595, Re\dsed Statutes, as to 
 pay of retired officers. 
 
 See section 1622, Re\'ised Statutes, as to retired 
 officers of the Marine Corps. 
 
 [1911, Mar. 4. Y. M. C. A. buildings in Navy yards.] That the Secretary 
 of the Navy is authorized, in his discretion, to furnish hereafter, without 
 charge, heat and light for the Young Men's Cliristian Association buildings in 
 navy yards and stations. — (36 Stat., 1274, chap. 239.) 
 
 [1911, Mar. 4. Naval supply account.] Hereafter the Naval Supply 
 Account for the Naval Establishment, as created by the act of June twenty-fifth, 
 nineteen hundred and ten, under the Bureau of Supplies and Accounts, shall 
 govern the charging, crediting, receipt, purchase, transfer, manufacture, repair, 
 issue, and consumption of all stores for the Naval Establishment, excepting the 
 materials named in that act and such other materials as the Secretary of the 
 Navy may designate: Provided, That the amount expended under General 
 Account of Advances for the purchase and manufacture of stores and materials 
 for the Naval Establishment shall not exceed the amount available for such 
 purposes.— (36 Stat., 1279, chap. 239.) 
 
 1366 
 
PL S. STATUTES AT LARGE. 
 
 Mar. 4, 1911. 
 
 The act of June 25, 1910 (36 Stat., 792), referred 
 to in the pro\ision, and which, as original! j' 
 enacted, was temporary legislation, read as 
 follows: 
 
 "Naval supply account for the Naval 
 Establishment: All stores on hand July 
 first, nineteen hundred and ten, shall be 
 charged to a naval supply account on the 
 records of the Bureau of Supplies and Ac- 
 counts, and all purchases of stock or ex- 
 penditures for manufactured or repaired 
 articles for stock at navy-yards or stations, 
 diu"ing the fiscal years nineteen hundred 
 and eleven and nineteen hundred and 
 twelve shall be charged to this account and 
 be paid for fi-om ' General account of ad- 
 vances. ' 
 
 ■'The amount so advanced during the 
 fiscal years nineteen hundred and eleven 
 and nineteen hundred and twelve shall be 
 charged to the proper appropriations as 
 these stores are consumed from stock, and 
 when disbursements made for all other 
 purposes are accomplished, the amount so 
 charged shall be returned to 'General ac- 
 count of advances' by pay or counter war- 
 rants: Provied, however, That such material 
 as pro\'isions, clothing and small stores, 
 medical stores, and such other materials as 
 the Secretary of the Navy may designate, 
 may be purchased by specific appropriations 
 or transferred to specific appropriations 
 before such materials are issued for use or 
 consumption. The said charge, however, to 
 any particular appropriation shall belimited 
 to the amount appropriated therefor. 
 
 "Credit shall be made to appropriations 
 during said fiscal years nineteen hundred 
 and eleven and nineteen hundred and 
 twelve for the value of surveyed material 
 taken from repairs made to ships or plant at 
 navy-yards and stations, or for stores 
 turned in from ships, and this credit shall 
 not be used by the bureaus to increase the 
 
 amount of that appropriation, but shall be 
 a deduction from the operating expenses of 
 the annual appropriation concerned, sub- 
 ject to the same pro\ision as stated in 
 above paragraph." 
 
 For later legislation relating to the naval supply 
 account and the naval supply account 
 fund, see acts of June 30, 1914 (38 Stat., 
 405), and March 1, 1921 (41 Stat., 1169, 
 1170). See also acts of March 2, 1891 (26 
 Stat., 807), and March 2, 1889 (2b Stat., 
 818); and see sections 418, 3676, 3689, and 
 3718, Re^'ised Statutes, and notes thereto. 
 
 The above-quoted provision in the act of March 
 4, 1911, relating to the naval supply account 
 was immediately preceded by the following 
 clause abolishing the Naval Supply Fund : 
 "The permanent Naval Supply Fund 
 created by the act of March third, eighteen 
 hundred and ninety-three, as modified by 
 the acts of June tenth, eighteen hundred and 
 ninety-six, and March third, eightqgn hun- 
 dred and ninety-seven, and further increas- 
 ed by the acts of January fifth, eighteen 
 hundred and ninety-nine, and February 
 fourteenth, nineteen hundred and two, 
 is hereby abolished, and of the sum remain- 
 ing on the books of the Treasury to the credit 
 of the said fund after the adjustment of all 
 liabilities, the Secretary of the Treasmy is 
 hereby authorized and directed to cause the 
 sum of one million five hundred thousand 
 dollars transfen'ed to the credit of said fund 
 from the General Account of Advances to 
 be returned to General Account of Ad- 
 vances, and the remainder to be covered 
 into the Treasury. 
 
 The Naval Supply Fund was created by act of 
 March 3, 1893 (27 Stat., 723), and increased 
 by acts of June 10, 1896 (29 Stat., 370), 
 March 3, 1897 (29 Stat., 658), January 5, 
 1899 (30 Stat., 781), and February 14, 1902 
 (32 Stat., 17). (See 28 Op. Atty. Gen., 
 634, and 29 Op. Atty. Gen., 344.) 
 
 [1911, Mar. 4. Marine Schools ; loan of vessels, etc., to.] That the Secretary 
 of the Navy, to promote nautical education, is hereby authorized and empower- 
 ed to furnish, upon the application in writing of the governor of a State, a suit- 
 able vessel of the navy, with all her apparel, charts, books, and instruments of 
 navigation, provided the same can be spared without detriment to the naval 
 service, to be used for the benefit of any nautical school, or school or college 
 having a nautical branch, established at each of the following ports of the 
 United States: Boston, Philadelphia, New York, Seattle, San Francisco, 
 Baltimore, Detroit, Saginaw, Michigan, Norfolk, and Corpus Christi, upon the 
 condition that there shall be maintained at such port a school or branch of a 
 school for the instruction of youths in navigation, steamship-marine engineer- 
 ing, and all matters pertaining to the proper construction, equipment, and sail- 
 ing of vessels or any particular branch thereof. — (36 Stat., 1353, chap. 265.) 
 
 Sec. 2. That a sum not exceeding the amount annually appropriated by 
 any State or municipality for the purpose of maintaining such a marine school or 
 schools or the nautical branch thereof is hereb}" authorized to be appropriated 
 for the purpose of aiding in the maintenance and support of such school or schools : 
 Provided, however, That appropriations shall be made for one school in any port 
 
 1367 
 
Mar. 4,1911. rt.S. STA TUTES A T LARGE. 
 
 heretofore named in section one and that the appropriation for any one year 
 shall not exceed twenty-five thousand dollars for any one school. — (36 Stat., 
 1353, chap. 265.) 
 
 Sec. 3. That the President of the United States is hereby authorized, 
 when in his opinion the same can be done without detriment to the public serv- 
 ice, to detail proper officers of the navy- as superintendents of or instructors in 
 such schools : Provided, That if any such school shall be discontinued, or the good 
 of the naval service shall require, such vessel shall be immediately restored to 
 the Secretary of the Navy and the officers so detailed vecsXled: And 'provided 
 further, That no person shall be sentenced to or received at such schools as a 
 punishment or commutation of punishment for crime. — (36 Stat., 1353-1354, 
 chap. 265.) 
 
 Sec. 4. That all laws and parts of laws in conflict herewith are hereby 
 repealed.— (36 Stat., 1354, chap. 265.) 
 
 Similar provisions were previously embodied in 
 act of June 20, 1874 (18 Stat., 121), as 
 amended by act of March 3, 1881 (21 Stat., 
 505). 
 
 [1911, Mar. 4. Retired officers, commissions.] That commissioned officers, 
 of the Army, Navy, and Marine Corps on the retired list whose rank has been or 
 shall hereafter be advanced by operation of or in accordance with law shall be 
 entitled to and shall receive commissions in accordance with such advanced 
 rank.— (36 Stat., 1354, chap. 266.) 
 
 See act of March 28, 1896 (29 Stat., 75) ; see also 
 note to Constitution, Article 11, section 3, 
 under "11. Duty to commission officers;" 
 
 See act of March 3, 1901 (31 Stat., 1440), and 
 amendments noted thereunder WT-th re- 
 ference to military and nautical schools. 
 
 and see note to section 1457, Revised Stat- 
 utes. 
 
 [1911, Mar. 4. Falsification of accounts, etc.; penalty.] That whoever, 
 being an officer, clerk, agent, or other person holding any office or employment 
 under the Government of the United States and, being charged with the duty 
 of keeping accounts or records of any kind, shall, with intent to deceive, mis- 
 lead, injure, or defraud the United States or any person, make in any such 
 account or record any false or fictitious entry or record of any matter relating 
 to or connected with his duties, or whoever with like intent shall aid or abet 
 any such officer, clerk, agent, or other person in so doing; or whoever, being 
 an officer, clerk, agent, or other person holding any office or employment 
 under the Government of the United States and, being charged with the duty 
 of receiving, holding, or paying over moneys or securities to, for, or on behalf 
 of the United States-, or of receiving or holding in trust for any person any 
 moneys or securities, shall, with like intent, make a false report of such moneys 
 or securities, or whoever with like intent shall aid or abet any such officer, 
 clerk, agent, or other person in so doing, shall be fined not more than five 
 thousand dollars, or imprisoned not more than ten years, or both. — (36 Stat., 
 1355-1356, chap. 270.] 
 
 See section 1624, Revised Statutes, article 14; and see Criminal Code, act of March 4, 1909, 
 section 90 (35 Stat., 1105). 
 
 [1911, Mar. 4, sec. 6. Bonds and contracts, Panama Railroad.] Hereafter 
 the Panama Railroad Company shall not be required to give bond, either with 
 or without surety, in contracts which it may make to furnish services, materials, 
 
 1868 
 
PL 3. STATUTES AT LARGE. Apr. 24, 1912. 
 
 or supplies to the Army, Nary, Marine Corps, or other departments of the 
 Government, and such contracts may be made for periods less than one year, 
 as may be agreed on, and formal contracts in writing shall not be required 
 unless agreed on. — (36 Stat., 1452, chap. 285.) 
 See sections 3718, 3719, and 3744, Re^-ised Statutes. 
 
 1911, Aug. 22. Partial payments, Navy contracts.] That the Secretary of 
 the Navy be, and he hereby is, authorized, in his discretion, to make partial 
 payments from time to time during the progress of the work under existing 
 contracts and all contracts hereafter made under the Navy Department for 
 public purposes, but not in excess of the value of work already done; and the 
 contracts hereafter made shall provide for a lien in favor of the Government, 
 which lien is hereby made paramount to all other liens, upon the articles or 
 thing contracted for on account of all payments so made : Provided, That partial 
 payments shall not be made under such contracts except where stipulated for, 
 and then only in accordance with contract provisions. — (37 Stat., 32-33, chap. 
 42.) 
 
 A pro\'ision on this subject was previously 
 contained in act of ]\Iarch 4, 1911 (36 Stat., 
 1267), but was expressly repealed by Joint 
 
 Resolution of August 14, 1911 (37 Stat., 38). 
 See section 3648, Revised Statutes. 
 
 [1912, Mar. 7. Course at Naval Academy ; commissions on graduation.] 
 That the course at the Naval Academy shall be four years, and midshipmen 
 on graduation shall be commissioned ensigns: Provided, That midshipmen now 
 performing two years' service at sea in accordance with existing law shall be 
 commissioned forthwith as ensigns from the date of the passage of this Act: 
 And provided, That those midshipmen of the class which was graduated in 
 nineteen hundred and nine, who have completed two years' service afloat, 
 and who are due for promotion, shall be commissioned ensigns to take rank 
 with the other members of their class, according to their standing as deter- 
 mined by their final multiples, respectively, for the six years' course, from 
 the fifth day of June, nineteen hundred and eleven, the date of rank to which 
 they were entitled prior to the passage of this Act: And provided further. That 
 no back pay or allowances shall result by reason of the passage of this Act. — 
 (37 Stat., 73, chap. 53.) 
 
 See sections 1520 and 1521, Revised Statutes, and notes thereto. 
 
 [1912, Apr. 24. Red Cross; use of in time of war.] That whenever in time 
 of war, or when war is imminent, the President may deem the cooperation and 
 use of the American National Red Cross with the sanitary services of the land 
 and naval forces to be necessary, he is authorized to accept the assistance 
 tendered by the said Red Cross and to employ the same under the sanitary 
 services of the Army and Navy in conformity with such rules and regulations 
 as he may prescribe. 
 
 Sec. 2. That when the Red Cross cooperation and assistance with the 
 land and naval forces in time of war or threatened hostilities shall have been 
 accepted by the President, the personnel entering upon the duty specified in 
 section one of this Act shall, while proceeding to their place of duty, while 
 serving thereat, and while returning therefrom, be transported and subsisted 
 at the cost and charge of the United States as civilian employees employed with 
 
 1369 
 
June 19, 1912. Pi. 3. STATUTES AT LARGE. 
 
 the said forces, and the Red Cross supplies that may be tendered as a gift 
 
 and accepted for use in the sanitary service shall be transported at the cost 
 
 and charge of the United States. — (37 Stat., 90-91, chap. 90.) 
 
 resolution of May 8, 1914 (38 Stat., 771), 
 as to loan of naval property to Red Cross. 
 
 See act of August 29, 191G (39 Stat., 581), as 
 to detail of medical officers of the Nav>' 
 for dutv with the Red Cross; and see 
 
 [1912, June 19. Eight-hour law; contract provisions.] That every contract 
 hereafter made to which the United States, any Territory, or the District of 
 Columbia is a party, and every such contract made for or on behalf of the 
 United States, or any Territory, or said District, which may require or involve 
 the employment of laborers or mechanics shall contam a provision ■ that no 
 laborer or mechanic doing any part of the work contemplated by the contract, 
 in the employ of the contractor or any subcontractor contracting for any part 
 of said work contemplated, shall be required or permitted to work more than 
 eight hours in any one calendar day upon such work; and every such contract 
 shall stipulate a penalty for each violation of such provision in such contract 
 of five dollars for each laborer or mechanic for every calendar day in which he 
 shall be required or permitted to labor more than eight hours upon said- work; 
 and any officer or person designated as inspector of the work to be performed 
 under any such contract, or to aid in enforcing the fulfillment thereof, shall, 
 upon observation or investigation, forthwith report to the proper officer of 
 the United States, or of any Territory, or of the District of Columbia, all viola- 
 tions of the provisions of this Act directed to be made in every such contract, 
 together with the name of each laborer or mechanic w^ho has been required 
 or permitted to labor in violation of such stipulation and the day of such viola- 
 tion, and the amount of the penalties imposed according to the stipulation 
 in any such contract shall be directed to be withheld for the use and benefit 
 of the United States, the District of Columbia, or the Territory contracting 
 by the officer or person whose duty it shall be to approve the payment of 
 the moneys due under such contract, whether the violation of the provisions 
 of such contract is by the contractor or any subcontractor. Any contractor 
 or subcontractor aggrieved by the withholding of any penalty as hereinbefore 
 provided shall have the right within six months thereafter to appeal to the 
 head of the department making the contract on behalf of the United States 
 or the Territory, and in the case of a contract made by the District of Columbia 
 to the Commissioners thereof, who shall have power to review the action 
 imposing the penalty, and in all such appeals from such final order whereby a 
 contractor or subcontractor may be aggrieved by the imposition of the penalty 
 hereinbefore provided such contractor or subcontractor may within six months 
 after decision by such head of a department or the Commissioners of the 
 District of Columbia file a claim in the Court of Claims, which shall have juris- 
 diction to hear and decide the matter in like manner as in other cases before 
 said court.— (37 Stat., 137-138, chap. 174.) 
 
 Sec. 2. That nothing in this Act shall apply to contracts for transporta- 
 tion by land or water, or for the transmission of intelligence, or for the pur- 
 chase of supplies by the Government, whether manufactured to conform to 
 particular specifications or not, or for such materials or articles as may usually 
 
 1370 
 
PL 3. STATUTES AT LARGE. July 31, 1912. 
 
 be bought in open market, except armor and armor plate, whether made to 
 conform to particular specifications or not, or to the construction or repair of 
 levees or revetments necessary for protection against floods or overflows on the 
 navigable waters of the United States : Provided, That all classes of work which 
 have been, are now, or may hereafter be performed by the Government shall, 
 when done by contract, by mdividuals, firms, or corporations for or on behalf 
 of the United States or any of the Territories or the District of Columbia, be 
 performed m accordance with the terms and provisions of section one of this 
 Act. The President, by Executive order, may waive the provisions and 
 stipulations in this Act as to any specific contract or contracts during time of 
 war or a time when war is imminent, and until January fii'st, nineteen hundred 
 and fifteen, as to any contract or contracts entered into in connection with the 
 construction of the Isthmian Canal. No penalties shall be imposed for any 
 violation of such provision in such contract due to any extraordinary events 
 or conditions of manufacture, or to any emergency caused by fire, famine, or 
 flood, by danger to life or to property, or by other extraordinary event or 
 condition on account of which the President shall subsequently declare the 
 violation to have been excusable. Nothing in this Act shall be construed 
 to repeal or modify the Act entitled "An Act relating to the limitation of the 
 hours of daily service of laborers and mechanics employed upon the public 
 works of the United States and of the District of Columbia" being chapter 
 three hundred and fifty-two of the laws of the Fifty-second Congress, approved 
 August first, eighteen hundred and ninety-two, as modified by the Acts of 
 Congress approved February twenty-seventh, nineteen hundred and six, and 
 June thirtieth, nineteen hundred and six, or apply to contracts which have 
 been or may be entered into under the provisions of appropriation Acts ap- 
 proved prior to the passage of this Act. — (37 Stat., 138, chap. 174.) 
 
 (37 Stat., 726-727); and see act of March 
 
 See section 3738, Revised Statutes, and act 
 of August 1, 1892 (27 Stat., 340), as amended 
 and reenacted by act of March 3, 1913 
 
 4, 1917 (39 Stat., 1192). 
 
 [1912, June 26, Sec. 8. Membership fees and expenses, societies or asso- 
 ciations.] No money appropriated by this or any other Act shall be expended 
 for membership fees or dues of any officer or employee of the United States 
 or of the District of Columbia in any society or association or for expenses of 
 attendance of any person at any meeting or convention of members of any 
 society or association, unless such fees, dues, or expenses are authorized to be 
 paid by specific appropriations for such purposes or are provided for in express 
 terms in some general appropriation. — (37 Stat., 184, chap. 182.) 
 
 Subsequent amendments to this section, which were either temporaxy or did not relate 
 to the Navy, are omitted. 
 
 [1912, July 31. Prize fight films and pictures.] That it shall be unlawful for 
 any person to deposit or cause to be deposited in the United States mails 
 for mailing or delivery, or to deposit or cause to be deposited with any express 
 company or other common carrier for carriage, or to send or carry from one 
 State or Territory of the United States or the District of Columbia to any other 
 State or Territory of the United States or the District of Columbia, or to bring 
 or to cause to be brought into the United States from abroad, any film or 
 other pictorial representation of any prize fight or encounter of pugilists, 
 
 54641°— 22 87 1371 
 
Aug. 13, 1912. Ft. S. STATUTES AT LARGE. Radio Regulation. 
 
 under whatever name, which is designed to be used or may be used for pur- 
 poses of pubhc exhibition.— (37 Stat., 240-241, chap. 263.) 
 
 Sec. 2. That it shall be unlawful for any person to take or receive from the 
 mails, or any express company or other common carrier, with intent to sell, 
 distribute, circulate, or exhibit any matter or tiling herein forbidden to be 
 deposited for mailing, delivery, or carriage in interstate commerce. — (37 
 Stat., 241, chap. 263.) 
 
 Sec. 3. That any person violating any of the provisions of tliis Act shall for 
 each offense, upon conviction thereof, be fined not more than one thousand 
 dollars or sentenced to imprisonment at hard labor for not more than one year, 
 or both, at the discretion of the court. — (37 Stat., 241, chap. 263.) 
 
 See section 211, Criminal Code, act of March 4, 1909 (35 Stat., 1129), and note thereto. 
 
 [1912, Aug. 1. Salvage, remuneration, etc.] That the right to remunera- 
 tion for assistance or salvage services shall not be affected by common owTier- 
 ship of the vessels rendering and receiving such assistance or salvage services. 
 
 Sec. 2. That the master or person in charge of a vessel shall, so far as he 
 can do so without serious danger to his own vessel, crew, or passengers, render 
 assistance to every person who is found at sea in danger of being lost; and if 
 he fails to do so, he shall, upon conviction, be liable to a penalty of not exceed- 
 ing one thousand dollars or imprisonment for a term not exceeding two years, 
 or both. 
 
 Sec. 3. That salvors of human life, who have taken part m the services 
 rendered on the occasion of the accident giving rise to salvage, are entitled to a 
 fair share of the remuneration awarded to the salvors of the vessel, her cargo, 
 and accessories. 
 
 Sec. 4. That a suit for the recovery of remuneration for rendering assist- 
 ance or salvage services shall not be maintainable if brought later than two 
 years from the date when such assistance or salvage was rendered, unless the 
 court in which the suit is brought shall be satisfied that during such period 
 there had not been any reasonable opportunity of arresting the assisted or 
 salved vessel ^vithin the jurisdiction of the court or within the territorial waters 
 of the country in which the libelant resides or has his principal place of business. 
 
 Sec. 5. That nothing in this Act shall be construed as applying to ships 
 of war or to Government ships appropriated exclusively to a public service. — 
 (37 Stat., 242, chap. 268.) 
 
 See sections 1536 and 4642, Re^^sed Statutes, 1918 (40 Stat., 705), and March 9, 1920, sec- 
 
 and notes thereto; see also acts of July 1, tions 10-11 (41 Stat., 528). 
 
 [1912, Aug. 13. Radio communication, regulation of.] That a person, 
 company, or corporation within the jurisdiction of the United States shall not 
 use or operate any apparatus for radio communication as a means of commer- 
 cial intercourse among the several States, or with foreign nations, or upon any 
 vessel of the United States engaged in interstate or foreign commerce, or for 
 the transmission of radiograms or signals the effect of which extends beyond 
 the jurisdiction of the State or Territory in which the same are made, or where 
 interference would be caused thereby with the receipt of messages or signals 
 from beyond the jurisdiction of the said State or Territory, except under and 
 in accordance with a license, revocable for cause, in that behalf granted by 
 
 1372 
 
Radio Regulation. Ft. 3. STATUTES AT LARGE. Aug. 13, 1912. 
 
 the Secretary of Commerce * * * upon application therefor; but nothing 
 in this Act shall be construed to apply to the transmission and exchange of 
 radiograms or signals between points situated in the same State: Provided, 
 That the effect thereof shall not extend beyond the jurisdiction of the said 
 State or interfere with the reception of radiograms or signals from beyond 
 said jm'isdiction; and a license shall not be required for the transmission or 
 exchange of radiograms or signals by or on behalf of the Government of the 
 United States, but every Government station on land or sea shall have special 
 call letters designated and published in the list of radio stations of the United 
 States by the Department of Commerce * * *. Any person, company, or 
 corporation that shall use or operate any apparatus for radio communication 
 in violation of this section, or knowingly aid or abet another person, company, 
 or corporation in so doing, shall be deemed guilty of a midemeanor, and on 
 conviction thereof shall be punished by a fine not exceeding five hundred 
 dollars, and the apparatus or device so unlawfully used and operated may be 
 adjudged forfeited to the United States.— (37 Stat., 302-303, chap. 287.) 
 
 Sec. 2. That every such license shall be in such form as the Secretary of 
 Commerce * * * shall determine and shall contain the restrictions, pursuant 
 to this Act, on and subject to which the license is granted ; that every such license 
 shall be issued only to citizens of the United States or Porto Rico or to a com- 
 pany incorporated under the laws of some State or Territory or of the United 
 States or Porto Rico, and shall specify the ownership and location of the station 
 in which said apparatus shall be used and other particulars for its identification 
 and to enable its range to be estimated; shall state the purpose of the station, 
 and, in case of a station in actual operation at the date of passage of this Act, 
 shall contain the statement that satisfactory proof has been furnished that it 
 was actually operating on the above-mentioned date; shall state the wave 
 length or the wave lengths authorized for use by the station for the prevention 
 of interference and the hours for which the station is licensed for work; and 
 shall not be construed to authorize the use of any apparatus for radio com- 
 munication in any other station than that specified. Every such license shall be 
 subject to the regulations contained herein, and such regulations as may be 
 established from time to time by authority of this Act or subsequent Acts and 
 treaties of the United States. Every such license shall provide that the Presi- 
 dent of the United States in time of war or public peril or disaster may cause 
 the closing of any station for radio communication and the removal therefrom 
 of all radio apparatus, or may authorize the use or control of any such station 
 or apparatus by any department of the Government, upon just compensation 
 to the owners.— (37 Stat., 303, chap. 287.) 
 
 Sec. 3. That every such apparatus shall at all times while in use and 
 operation as aforesaid be in charge or under the supervision of a person or 
 persons licensed for that purpose by the Secretary of Commerce * * * 
 Every person so licensed who in the operation of any radio apparatus shall fail 
 to observe and obey regulations contained in or made pursuant to this Act or 
 subsequent Acts or treaties of the United States, or any one of them, or who 
 shall fail to enforce obedience thereto by an unlicensed person while serving 
 under his supervision, in addition to the punishments and penalties herein 
 
 1373 
 
Aug. 13, 1912. Pt. S. STATUTES AT LARGE. Radio Regulation. 
 
 prescribed, may suffer the suspension of the said license for a period to be 
 fixed by the Secretary of Commerce * * * not exceeding one year. It 
 shall be un]a^^^ul to employ any unlicensed person or for any unlicensed person 
 to serve in charge or in supervision of the use and operation of such apparatus, 
 and any person violating this provision shall be guilty of a misdemeanor, and 
 on conviction thereof shall bo punished by a fine of not more than one hundred 
 dollars or imprisonment for not more than two months, or both, in the discretion 
 of the court, for each and every such offense: Provided, That in case of emer- 
 gency the Secretary of Commerce * * * may authorize a collector of 
 customs to issue a temporary permit, in lieu of a license, to the operator on a 
 vessel subject to the radio ship Act of June twenty-fourth, nineteen hundred 
 and ten.— (37 Stat., 303, chap. 287.) 
 
 Sec. 4. That for the purpose of preventing or minimizing interference 
 with communication between stations in which such apparatus is operated, 
 to facilitate radio communication, and to further the prompt receipt of distress 
 signals, said private and commercial stations shall be subject to the regulations 
 of this section. These regulations shall be enforced by the Secretary of Com- 
 merce * * * through the collectors of customs and other officers of the 
 Government as other regulations herein provided for. 
 
 The Secretary of Commerce * * * may, in his discretion, waive the 
 provisions of any or all of these regulations when no interference of the character 
 above mentioned can ensue. 
 
 The Secretary of Commerce * * * may grant special temporary 
 licenses to stations actually engaged in conducting experiments for the develop- 
 ment of the science of radio communication, or the apparatus pertaining 
 thereto, to carry on special tests, using any amount of power or any wave 
 lengths, at such hours and under such conditions as will insure the least inter- 
 ference with the sending or receipt of commercial or Government radiograms, 
 of distress signals and radiograms, or with the work of other stations. 
 
 In these regulations the naval and military stations shall be understood 
 to be stations on land. 
 
 Regulations. 
 
 normal wave length. 
 
 First. Every station shall be required to designate a certain definite wave 
 length as the normal sending and receiving wave length of the station. This 
 wave length shall not exceed six hundred meters or it shall exceed one thousand 
 six hundred meters. Every coastal station open to general public service 
 shall at all times be ready to receive messages of such wave lengths as are 
 required by the Berlin convention. Every ship station, except as hereinafter 
 provided, and every coast station open to general public service shaU be pre- 
 pared to use two sending wave lengths, one of three hundred meters and one 
 of six hundred meters, as required by the international convention in force: 
 Provided, That the Secretary of Commerce * * * may, in his discretion, 
 change the limit of wave length reservation made by regulations first and 
 second to accord with any international agreement to which the United States 
 is a party. 
 
 1374 
 
Radio Regulation. Pt. 3. STATUTES AT LARGE. Aug. 13, 1912. 
 
 OTHER WAVE LENGTHS. 
 
 Second. In addition to the normal sending wave length all stations, 
 except as provided hereinafter in these regulations, may use other sending 
 wave lengths: Provided, That they do not exceed six hundred meters or that 
 they do exceed one thousand six hundred meters : Provided further, That 
 the character of the waves emitted conforms to the requirements of regulations 
 third and fourth following. 
 
 USE OF A "pure WAVE." 
 
 Third. At all stations if the sending apparatus, to be referred to hereinafter 
 as the "transmitter," is of such a character that the energy is radiated in two 
 or more wave lengths, more or less sharply defined, as indicated by a sensitive 
 wave meter, the energy in no one of the lesser waves shall exceed ten per 
 centum of that in the greatest. — (37 Stat., 304, chap. 287.) 
 
 use of a "sharp avave." 
 
 Fourth. At all stations the logarithmic decrement per complete oscillation 
 in the wave trains emitted by the transmitter shall not exceed two-tenths, 
 except when sending distress signals or signals and messages relating thereto. 
 
 use of "standard distress wave." 
 
 Fifth. Every station on shipboard shall be prepared to send distress calls 
 on the normal wave length designated by the international convention in 
 force, except on vessels of small tonnage unable to have plants insm-ing that 
 wave length. 
 
 SIGNAL OF DISTRESS. 
 
 Sixth. The distress call used shall be the international signal of distress 
 
 USE OF "broad INTERFERING WAVE " FOR DISTRESS SIGNALS. 
 
 Seventh. When sending distress signals, the transmitter of a station on 
 shipboard may be tuned in such a manner as to create a maximum of inter- 
 ference with a maximum of radiation. 
 
 DISTANCE REQL1REMENT FOR DISTRESS SIGNALS. 
 
 Eighth. Every station on shipboard, wherever practicable, shall be 
 prepared to send distress signals of the character specified in regulations fifth 
 and sixth with sufficient power to enable them to be received by day over sea 
 a distance of one hundred nautical miles by a shipboard station equipped 
 with apparatus for both sending and receiving equal in ail essential particulars 
 to that of the station first mentioned. 
 
 "right of way" for DISTRESS SIGNALS. 
 
 Ninth. All stations are required to give absolute priority to signals and 
 radiograms relating to ships in distress; to cease all sending on hearing a 
 
 1375 
 
Aug. 13, 1912. Pt. 3. STATUTES AT LARGE. Radio Regulation. 
 
 distress signal; and, except when engaged in answering or aiding the ship 
 in distress, to refrain from sending until all signals and radiograms relating 
 thereto are completed. 
 
 REDUCED POWER FOR SHIPS NEAR A GOVERNMENT STATION. 
 
 Tenth. No station on shipboard, when within fifteen nautical miles of a 
 naval or military station, shall use a transformer input exceeding one kilowatt, 
 nor, when within five nautical imles of such a station, a transformer input 
 exceeding one-half kilowatt, except for sending signals of distress, or signals or 
 radiograms relating thereto. — (37 Stat., 305, chap. 287.) 
 
 INTERCOMMUNICATION. 
 
 Eleventh. Each shore station open to general public service between the 
 coast and vessels at sea shall be bound to exchange radiograms with any similar 
 shore station and with any ship station without distinction of the radio systems 
 adopted by such stations, respectively, and each station on shipboard shall be 
 bound to exchange radiograms wdth any other station on shipboard without 
 distinction of the radio systems adopted by each station, respectively. 
 
 It shall be the duty of each such shore station, during the houi*s it is in 
 operation, to listen in at intervals of not less than fifteen minutes and for a 
 period not less than two minutes, with the receiver tuned to receive messages 
 of three hundred meter wave lengths. — (37 Stat., 305-306, chap. 287.) 
 
 DIVISION OF TIME. 
 
 Twelfth. At important seaports and at all other places where naval or 
 military and private or commercial shore stations operate in such close prox- 
 imity that interference with the work of naval and military stations can not 
 be avoided by the enforcement of the regulations contained in the foregomg 
 regulations concerning wave lengths and character of signals emitted, such 
 private or commercial shore stations as do interfere with the reception of signals 
 by the naval and military stations concerned shall not use their transmitters 
 during the first fifteen minutes of each hour, local standard time. The Secre- 
 tary of Commerce * * * niay, on the recommendation of the department 
 concerned, designate the station or stations which may be required to observe 
 this division of time. 
 
 GOVERNMENT STATIONS TO OBSERVE DIVISION OF TIME. 
 
 Thirteenth. The naval or military stations for which the above-mentioned 
 division of time may be established shall transmit signals or radiograms only 
 during the first fifteen minutes of each hour, local standard time, except in case 
 of signals or radiograms relating to vessels in distress, as hereinbefore provided. 
 
 USE OF UNNECESSARY POWER. 
 
 Fourteenth. In all circumstances, except in case of signals or radiograms 
 relating to vessels in distress, all stations shall use the minimum amount of 
 energy necessary to carry out any communication desired. 
 
 1376 
 
Radio Regulation. Pt. 3. STATUTES AT LARGE. Aug. 13, 1912. 
 
 GENERAL RESTRICTIONS ON PRIVATE STATIONS. 
 
 Fifteenth. No private or commercial station not engaged in the transaction 
 of bona fide commercial business by radio communication or in experimentation 
 in connection with the development and manufacture of radio apparatus for 
 commercial purposes shall use a transmitting wave length exceeding two hun- 
 dred meters, or a transformer input exceeding one kilowatt, except by special 
 authority of the Secretary of Commerce * * * contained in the license of 
 the station : Provided, That the o\vner or operator of a station of the character 
 mentioned in this regulation shall not be liable for a violation of the require- 
 ments of the third or fourth regulations to the penalties of one hundred dollars 
 or twenty-five dollars, respectively, provided in this section unless the person 
 maintaining or operating such station shall have been notified in writing that 
 the said transmitter has been found, upon tests conducted by the Government, 
 to be so adjusted as to violate the said third and fourth regulations, and oppor- 
 tunity has been given to said o^vner or operator to adjust said transmitter in 
 conformity with said regulations. 
 
 SPECIAL RESTRICTIONS IN THE VICINITIES OF GOVERNMENT STATIONS. 
 
 Sixteenth. No station of the character mentioned in regulation fifteenth 
 situated ^vithin five nautical miles of a naval or military station shall use a 
 transmitting wave length exceeding two hundred meters or a transformer 
 input exceeding one-half Idlowatt. — (37 Stat., 306, chap. 287.) 
 
 SHIP STATIONS TO COMMUNICATE WITH NEAREST SHORE STATIONS. 
 
 Seventeenth. In general, the sliipboard stations shall transmit their 
 radiograms to the nearest shore station. A sender on board a vessel shall, 
 however, have the right to designate the shore station tlii'ough which he desires 
 to have his radiograms transmitted. If this can not be done, the wishes of the 
 sender are to be complied with only if the transmission can be effected without 
 interfering with the service of other stations. 
 
 LIMITATIONS FOR FUTURE INSTALLATIONS IN VICINITIES OF GOVERNMENT 
 
 STATIONS. 
 
 Eighteenth. No station on shore not in actual operation at the date of the 
 passage of this Act shall be licensed for the transaction of commercial business 
 by radio communication within fifteen nautical miles of the following naval or 
 military stations, to wit: ^Vrlington, Virginia; Key West, Florida; San Juan, 
 Porto Rico; North Head and Tatoosh Island, Washington; San Diego, Cali- 
 fornia; and those established or which may be established in Alaska and in the 
 Canal Zone; and the head of the department having control of such Government 
 stations shall, so far as is consistent with the transaction of governmental busi- 
 ness, arrange for the transmission and receipt of commercial radiograms under 
 the provisions of the Berlin convention of nineteen hundred and six and future 
 international conventions or treaties to which the United States may be a party, 
 at each of the stations above referred to, and shall fix the rates therefor, subject 
 
 1377 
 
Aug. 13, 1912. Pt.3. STATUTES AT LARGE. Radio Regulation. 
 
 to control of such rates by Congress. At such stations and wherever and when- 
 ever shore stations open for general public business between the coast and vessels 
 at sea under the provisions of the Berlin convention of nineteen hundred and 
 six and future international conventions and treaties to which the United 
 States may be a party shall not be so established as to insure a constant service 
 day and night without interruption, and in all localities wherever or whenever 
 such service shall not be maintained by a commercial shore station within one 
 hundred nautical miles of a naval radio station, the Secretary of the Navy shall, 
 so far as is consistent with the transactions of governmental business, open naval 
 radio stations to the general public business described above, and shall fix 
 rates for such service, subject to control of such rates by Congress. The receipts 
 from such radiograms shall be covered into the Treasury as miscellaneous re- 
 ceipts. 
 
 SECRECY OF MESSAGES. 
 
 Nineteenth. No person or persons engaged in or having knowledge of the 
 operation of any station or stations, shall divulge or publish the contents of 
 any messages transmitted or received by such station, except to the person or 
 persons to whom the same may be directed, or their authorized agent, or to 
 another station employed to forward such message to its destination, unless 
 legally required so to do by the court of competent jurisdiction or other com- 
 petent authority. Any person guilty of divulging or publishing any message, 
 except as herein provided, shall, on conviction thereof, be punishable by a fine 
 of not more than two hundred and fifty dollars or imprisonment for a period 
 of not exceeding three months, or both fine and imprisonment, in the discretion 
 of the court.— (37 Stat., 307, chap. 287.) 
 
 PENALTIES. 
 
 For violation of any of these regulations, subject to which a license under 
 sections one and two of this Act may be issued, the owner of the apparatus shall 
 be liable to a penalty of one hundred dollars, which may be reduced or remitted 
 by the Secretary of Commerce * * * r^j^(j fgj. repeated violations of any of 
 such regulations, the license may be revoked. 
 
 For violation of any of these regulations, except as provided in regulation 
 nineteenth, subject to which a license under section three of this Act may be 
 issued, the operator shall be subject to a penalty of twenty-five dollars, which 
 may be reduced or remitted by the Secretary of Commerce * * * j^j^j f^jj. 
 repeated violations of any such regulations, the license shall be suspended or 
 revoked.— (37 Stat., 308, chap. 287.) 
 
 Sec. 5. That every license granted under the provisions of this Act for 
 the operation or use of apparatus for radio conmiunication shall prescribe that 
 the operator thereof shall not willfully or maliciously interfere with any other 
 radio communication. Such interference shall be deemed a misdemeanor, and 
 upon conviction thereof the owner or operator, or both, shall be punishable 
 by a fine of not to exceed five hundred dollars or imprisonment for not to exceed 
 one year, or both.— (37 Stat., 308, chap. 287.) 
 
 Sec. 6. That the expression "radio communication" as used in this Act 
 means an}^ system of electrical communication by telegraphy or telephony 
 
 1378 
 
Pt. 3. STATUTES AT LAR3E. Aug. 22, 1912. 
 
 without the aid of any wire connecting the points from and at which the radio- 
 grams, signals, or other communications are sent or received. — (37 Stat., 308, 
 chap. 287.) 
 
 Sec. 7. That a person, company, or corporation within the jurisdiction 
 of the United States shall not knowingly utter or transmit, or cause to be 
 uttered or transmitted, any false or fraudulent distress signal or call or false 
 or fraudulent signal, call, or other radiogram of any kind. The penalty for so 
 uttering or transmitting a false or fraudulent distress signal or call shall be a 
 fine of not more than two thousand five hundred dollars or imprisonment for 
 not more than five years, or both, in the discretion of the court, for each and 
 every such offense, and the penalty for so uttering or transmitting, or causing to 
 be uttered or transmitted, any other false or fraudulent signal, call, or other 
 radiogram shall be a fine of not more than one thousand dollars or imprison- 
 ment for not more than two years, or both, in the discretion of the court, for 
 each and every such offense. — (37 Stat., 308, chap. 287.) 
 
 Sec. 8. That a person, company, or corporation shall not use or operate 
 any apparatus for radio communication on a foreign ship in territorial waters 
 of the United States otherwise than in accordance with the provisions of sec- 
 tions four and seven of this Act and so much of section live as imposes a penalty 
 for interference. Save as aforesaid, nothing in this Act shall apply to apparatus 
 for radio communication on any foreign ship. — (37 Stat., 308, chap. 287.) 
 
 Sec. 9. That the trial of any offense under this Act shall be in the district 
 in which it is committed, or if the offense is committed upon the high seas or 
 out of the jurisdiction of any particular State or district the trial shall be in the 
 district where the offender may be found or into which he shall be first 
 brought.— (37 Stat., 308, chap. 287.) 
 
 Sec. 10. That this Act shall not apply to the Philippine Islands. — (37 Stat., 
 308, chap. 287.) 
 
 By Executive Order No. 2585, April 6, 1917, 
 the President directed, by authority of 
 this act, "that such radio stations within 
 the j urisdiction of the United States as are 
 required for naval communications shall 
 be taken over by the Government of the 
 United States and used and controlled by 
 it, to the exclusion of any other control or 
 use; and, furthermore, that all radio sta- 
 tions not necessary to the Government of 
 the United States may be closed for radio 
 communication;" and that "the enforce- 
 ment of this order is hereby delegated to 
 
 the Secretary of the Navy, who is author- 
 ized and directed to take such action in 
 the premises as to him may appear neces- 
 sary. " (See sec. 2 of this act, above set 
 forth.) 
 By Joint Resolution of June 5, 1920 (41 Stat., 
 1061), provision was made for operation of 
 Government radio stations for the use of the 
 general public until two years from the date 
 thereof; and further that all Government 
 stations shall otherwise be used and 
 operated in accordance with the above act 
 of August 13, 1912. 
 
 [1912, Aug. 22. Certificates of discharge, etc., in true names.] That the 
 Secretary of War and the Secretary of the Navy be, and they are hereby, au- 
 thorized and required to issue certificates of discharge or orders of acceptance 
 of resignation, upon application and proof of identity, in the true name of such 
 persons as enlisted or served under assumed names, wliile minors or otherwise, 
 in the Army or Navy during any war between the United States and any other 
 nation or people and were honorably discharged therefrom. Applications for 
 said certificates of discharge or amended orders of resignation may be made 
 by or on behalf of persons entitled to them, but no such certificate or order shall 
 
 1379 
 
See sections 1426-1427, Revised Statutes, and 
 notes thereto. 
 
 Aug. 22, 1912. Pt. 3. STATUTES AT LARGE. 
 
 be issued where a name was assumed to cover a crime or to avoid its conse- 
 quence.— (37 Stat., 324, chap. 329.) 
 
 Previous provisions on this subject were con- 
 tained in the act of April 14, 1890 (26 
 Stat., bh^, as amended and reenacted by 
 act of June 25, 1910 (36 Stat., 824). 
 
 [1912, Aug. 22. Retirement of officers to create vacancies.] That here- 
 after any ofliccr retired under the provisions of sections eight and nine of the 
 act approved March third, eighteen hundred and ninety-nine, an act to reor- 
 ganize and increase the efficiency of the personnel of the Navy and Marine 
 Corps of the United States, shall be retired with the rank and three-fourths the 
 sea pa}^ of the grade from which he is retired. — (37 Stat., 328, chap. 335.) 
 
 See act of ^larch 3, 1899, section 8 (30 Stat., 
 
 1006). Section 9 of the same act, also 
 
 referred to in the above provision, was 
 
 repealed bv act of March 3, 1915 (38 Stat., 
 
 938). 
 By act of May 30, 1908 (35 Stat., 501), it was 
 
 provided that ''in computing the pay of 
 
 retired officers of the Navy, the ten per 
 cent additional pay allowed for sea duty or 
 for shore duty beyond the continental 
 limits of the United States shall not be 
 included." 
 See generally sections 1443-1465, Revised 
 Statutes, as to retired officers of the Navy. 
 
 [1912, Aug. 22. Chiefs of bureaus, permanent commission and pay provi- 
 sions repealed.] That the portion of the act entitled "An act making appro- 
 priations for the naval service for the fiscal year ending June thirtieth, nine- 
 teen hundred and eleven, and for other purposes," approved June twenty- 
 fourth, nineteen hundred and ten, which reads as follows: 
 
 "The pay and allowances of chiefs of bureaus of the Navy Department shall 
 be the highest shore-duty pay and allowances of the rear admiral of the lower 
 nine, and all officers of the Navy who are now serving or who shall hereafter 
 serve as chief of bureau in the Navy Department, and are eligible for retire- 
 ment after thirty years' service, shall have, while on the active list, the rank, 
 title, and emoluments of a chief of bureau, in the same manner as is already 
 provided by statute law for such officers upon retirement by reason of age or 
 length of service, and such officers, after thirty years' service, shall be entitled 
 to and shall receive new commissions in accordance with the rank and title 
 hereby conferred," be, and the same is hereby, repealed: Provided, That no 
 officer who has received his commission under the provisions of said act shall 
 be deprived of said commission or the rank, title, and emoluments thereof by 
 virtue of this repeal.— (37 Stat., 329, chap. 335.) 
 
 The enactment hereby repealed was contained 
 in the act of June 24, 1910 (36 Stat., 607- 
 608). As to officers who had benefited by 
 that enactment, and the construction 
 thereof, see note to section 421, Revised 
 Statutes, under "IV. Rank, Titles, and 
 Precedence," subheading ''Rank of chiefs 
 of bureaus. ' ' 
 
 By act of July 1, 1918 (40 Stat, 717), chiefs of 
 bureaus in the Navy Department are to 
 receive the same pay and allowances as 
 chiefs of bureaus in the War Department, 
 and are to have corresponding rank. 
 
 [1912, Aug. 22. Retired officers, employment on active duty.] Hereafter 
 any naval officer on the retired list may, with his consent, in the discretion of 
 the Secretary of the Navy, be ordered to such duty as he may be able to perform 
 at sea or on shore, and while so employed in time of peace shall receive the pay 
 and allowances of an officer of the active list of the same rank : Provided, That 
 no such retired officer so employed on active duty shall receive, in time of peace, 
 
 1380 
 
Pt. 3. STATUTES AT LARGE. 
 
 Aug. 22, 1912. 
 
 any greater pay and allowances than the pay and allowances which are now or 
 may hereafter be provided by law for a lieutenant senior grade on the active 
 list of like length of service: And provided further , That any such officer whose 
 retired pay exceeds the highest pay and allowances of the grade of lieutenant 
 senior grade, shall, while so employed in time of peace, receive his retired pay 
 only, in lieu of all other pay and allowances. — (37 Stat., 329, chap. 335.) 
 
 See notes to sections 1462, 1592, and 1622, Re- 
 vised Statutes; see also section 1225, Re- 
 vised Statutes, and note thereto. 
 
 By act of Augiist 29, 1916 (39 Stat., 581), gen- 
 eral provision was made for the pay of any 
 retired officer of the naval service detailed 
 on active dutv. 
 
 March 3, 1915 (38 Stat., 929). See also 
 note to section 418, Revised Statutes. 
 
 [1912, Aug. 22. Useless papers on vessels, disposal of.] The act "to author- 
 ize and provide for the disposal of useless papers in executive departments," 
 approved February sixteenth, eighteen hundred and eighty-nine, is hereby 
 amended so that accumulations in the files of vessels of the Navy of papers that, 
 in the judgment of the commander in chief of the fleet, are not needed or useful 
 in the transaction of current business and have no permanent value or historical 
 interest may be disposed of by the commander in chief of the fleet by sale, after 
 advertisement for proposals, as waste papers if practicable, or if not practicable, 
 then otherwise, as may appear best for the interests of the Government, the 
 commander in chief of the fleet to make report thereon to the Secretary of the 
 Navy; provided always that no papers less than two years old from the date of 
 the last indorsement thereon and no correspondence, or the related papers, with 
 officers or representatives of a foreign government shall be destroyed or disposed 
 of by such commander in chief of the fleet. — (37 Stat., 329-330, chap. 335.) 
 
 See acts of Februarv 16, 1889 (25 Stat., 672), 
 March 2, 1895 '(28 Stat., 933), February 
 16, 1909, section 14 (35 Stat., 622), and 
 
 [1912, Aug. 22. Extension of enlistments.] That the term of enlistment 
 of any enlisted man in the Navy may, by his voluntary written agreement, 
 under such regulations as may be prescribed by the Secretary of the Navy with 
 the approval of the President, be extended for a period of either one, two, three, 
 or four full years from the date of expiration of the then existing four-year term 
 of enlistment, and subsequent to said date such enlisted men as extend the term 
 of enlistment as authorized in this section shall be entitled to and shall receive 
 the same pay and allowances in all respects as though regularly discharged and 
 reenlisted immediately upon expiration of their term of enlistment, and such 
 extension shall not operate to deprive them upon discharge at the termination 
 thereof of any right, privilege, or benefit to which they would be entitled at the 
 expiration of -a four-year term of enlistment.— (37 Stat., 331, chap. 335.) 
 
 See notes to sections 1418 and 1573, Re^^.sed 
 
 Statutes. 
 Extension of minority enlistments in the Navy 
 
 and Marine Corps was authorized by act 
 
 of April 25, 1917 (40 Stat., 38). 
 By act of June 4, 1920, section 7 (41 Stat., 
 
 [1912, Aug. 22. Discharge prior to expiration of enlistment.] That under 
 such regulations as the Secretary of the Navy may prescribe, with the approval 
 of the President, any enlisted man may be discharged at any time within three 
 months before the expiration of his term of enlistment or extended enlistment 
 
 1836), enlistments in the Navy and Marine 
 Corps were authorized for terms of two, 
 three, or four years, and it was provided 
 that all laws applicable to four-year 
 enlistments shall apply to enlistments for 
 a shorter period. 
 
 1381 
 
Aug. 22, 1912. Pt. S. STA TUTES A T LARGE. 
 
 without prejudice to any right, privilege, or benefit that he would have received, 
 except pay and allowances for the unexpired period not served, or to which 
 he would thereafter l)ecome entitled, had he served his full term of enlistment 
 or extended enlistment: Provided, That nothing in this act shall be held to 
 reduce or increase the pay and allowances of enlisted men of the Xavy now 
 authorized pursuant to law. — (37 Stat., 331, chap. 335.) 
 
 See notes to sections 1418, 1569, and 1573, ' men without pay for the unexpired portion 
 
 of their enlistment, in lieu of discharge by 
 purchase. 
 
 Re\ised Statutes. 
 By act of August 29, 1916 (39 Stat., 580), 
 authority was granted to furlough enlisted 
 
 [1912, Aug. 22. Advertising for recruits.] That authority is hereby 
 granted to employ the services of an advertising agency in advertising for 
 recruits under such terms and conditions as are most advantageous to the 
 Government.— (37 Stat., 332, chap. 335.) 
 
 August 29, 1916 (39 Stat., 614\ March 4, 
 1917 (39 Stat., 1190i, June 15, 1917 (40 
 Stat., 214), and July 1, 1918 (40 Stat., 
 736), being preceded in the act last cited 
 by the word "hereafter." 
 Annual appropriations are made, under • "Bu- 
 reau of Xa^"igation, '" for ■"advertising for 
 and obtaining men and apprentice seamen . " ' 
 (E. g., act June 4, 1920, 41 Stat., 815.; 
 
 This pro^'ision, which was appended to the 
 appropriation for '"Recruiting, "' under 
 '"Bureau of Xa\igation.' was repeated in 
 the acta of March 4, 1913 (37 Stat., 894), 
 and June 30, 1914 (38 Stat., 395\ except 
 that in the act last cited the words "or 
 agencies" were inserted after the word 
 "agency."' A similar pro^■i3ion under 
 " 'fi^nsportation and recruiting, Marine 
 Corps, was contained in the acts of 
 
 [1912, Aug. 22. Pearl Harbor, rules governing navigation, anchorage, etc.] 
 For the proper control, protection, and defense of the naval station, harbor, 
 and entrance channel at Pearl Harbor. Territory of Hawaii, the Secretary of 
 the Navy is hereby authorized, empowered, and directed to adopt and pre- 
 scribe suitable rules and regulations governing the navigation, movement, and 
 anchorage of vessels of whatsoever character in the waters of Pearl Harbor, 
 island of Oahu, Hawaiian Islands, and in the entrance channel to said harbor, 
 and to take all necessary measures for the proper enforcement of such rules and 
 regulations. — (37 Stat., 341, chap. 335.) 
 
 See sections 4233, 4412, and 4413, Re^'ised Statutes, and notes thereto. 
 
 [1912, Aug, 22. Nautical almanac, exchange of data with foreign offices, 
 use of employees, etc.] The Secretary of the Xav}' is hereby authorized to 
 arrange for the exchange of data with such foreign almanac offices as he may 
 from time to time deem desirable -v^-ith a view to reducing the amount of duplica- 
 tion of work in preparing the different national nautical and astronomical 
 almanacs and increasing the total data which may be of use to navigators and 
 astronomers available for publication in the American Ephemeris and Xautical 
 ^Vlmanac: Provided, That any such arrangement shall be terminable on one 
 year's notice: Provided further, That the work of the Xautical Almanac Office 
 during the continuance of any such arrangement shall be conducted so that in 
 case of emergency the entire portion of the work intended for the use of navi- 
 gators may be computed by the force employed by that office, and without any 
 foreign cooperation whatsoever: Promded further, That any employee of the 
 Xautical Almanac Office who may be authorized in any annual appropriation 
 bill and whose services in whole or in part can be spared from the duty of pre- 
 paring for publication the annual volumes of the American Ephemeris and 
 
 1382 
 
Pt. 3. STATUTES AT LARGE. Aug. 23, 1912. 
 
 Nautical Almanac may be employed by said office in the duty of improving the 
 tables of the planets, moon, and stars, to be used in preparing for publication 
 the annual volumes of the office. — (37 Stat., 342, chap. 335.) - 
 
 See note to section 436, Re\-ised Statutes. 
 
 [1912, Aug. 22. Pay of gunnery sergeants.] That the gunnery sergeants 
 of the Marine Corps shall hereafter receive the same pay, and be entitled to the 
 allowances, rank, continuous-service pay, and retired pay of a first sergeant in 
 said corps. — (37 Stat., 351, chap. 335.) 
 
 See note to section 1612, Re^'ised Statutes. 
 
 [1912, Aug. 22. Enlisted men, restriction on employment of.] No enlisted 
 men or seamen, not including commissioned and warrant officers, on battle- 
 ships of the Navy, when such battleships are docked or laid up at an}- navy 
 yard for repairs, shall be ordered or required to perform any duties except 
 such as are or may be performed by the crew while at sea or in a foreign port. — 
 (37 Stat., 355, chap. 335.) 
 
 See act of June 3, 1916, section 35 (39 Stat., 188), as to restrictions on emploj-nient of en- 
 listed men. 
 
 [1912, Aug. 23, sec. 4. Civil service; efficiency ratings; promotions, demo- 
 tions, and dismissals; honorably discharged sailors, etc.] The Civil Seryice 
 Commission shall, subject to the approval of the President, establish a system 
 of efficiency ratings for the classified service in the several executive depart- 
 ments in the District of Columbia based upon records kept in each department 
 and independent establishment with such frequency as to make them as nearly 
 as possible records of fact. Such system shall provide a minunum rating of 
 efficiency which must be attained by an employee before he may be promoted; 
 it shall also provide a rating below which no employee may fall without being 
 demoted; it shall further provide for a rating below which no employee may fall 
 without being dismissed for inefficiency. AU promotions, demotions, or dis- 
 missals shall be governed by provisions of the civil service rules. Copies of 
 all records of efficiency shall be furnished by the departments and independent 
 establishments to the Civil Service Commission for record in accordance with 
 the provisions of this section: Provided, That in the event of reductions being 
 made in the force in any of the executive departments no honorably discharged 
 soldier or sailor whose record in said department is rated good shall be dis- 
 charged or dropped, or reduced in rank or salary. — (37 Stat., 413, chap. 350.) 
 
 Any person knowingly violating the provisions of this section shall be 
 summarilv removed from office, and may also upon conviction thereof be 
 punished by a fine of not more than one thousand dollars or by iniprisonment 
 for not more than one year. — (37 Stat., 414, chap. 350.) 
 
 Bv act of February 28, 1916 (39 Stat., Ih'), a 
 Bureau of Efficiency was created as an 
 independent establishment, and the duties 
 relating to efficiency ratings, which were 
 i mposed upon the Ci\'il Service Commission 
 by this act, were expressly transferred to 
 said bureau. PrcA-iously, a DiA-ision of 
 Efiiciency of the Civil Service Commission 
 had been established bv act of March 4, 
 1915 (38 Stat., 1007). 
 
 See note to section 416, Revised Statutes, 
 
 imder "Honorably discharged soldiers and 
 sailors," and particularly the case of 
 Persing v. Daniels (43 App. D. C, 470), 
 noted thereunder, which was decided 
 prior to the acts above cited pro\-iding for 
 the enforcement of tliis section. See 
 also act of August 15, 1876 (19 Stat., 169), 
 and section 1754, Revised Statutes. 
 See act of August 24, 1912, section 6 (37 Stat., 
 555), for other pro\isions as to remo^'al of 
 ci^■il employees. 
 
 1383 
 
Aug. 23, 1912. Pt. 3. STATUTES AT LARGE. 
 
 [1912, Aug. 23, sec. 5. Penalty for violating law as to number and pay of 
 employees, etc.] 'i'huL any person violating section lour of tlie legislative, 
 executive, and judicial appropriation Act approved August fifth, eighteen 
 hundred and eighty-two (Statutes at Large, volume twenty-two, page two 
 hundred and fifty-five), shall be summarily removed from office, and may also 
 upon conviction thereof be punished by a fine of not more than one thousand 
 dollars or by imprisonment for not more than one year. — (37 Stat., 414, chap. 
 350.) 
 
 See act of August 5, 1882, section 4 (22 Stat. , 255-256) ; see also section 3G82, Revised Statutes, 
 and act of June 22, 1900, section 6 (34 Stat., 449). 
 
 [1912, Aug. 23, sec. 6. Apportionment of contingent funds, etc.] That in 
 addition to the apportionment required by the so-called antideficiency Act, 
 approved February twenty-seventh, nineteen hundred and six (Statutes at 
 Large, volume thirty-four, page forty-nine), the head of each executive depart- 
 ment shall, on or before the beginning of each fiscal year, apportion to each 
 office or bureau of his department the maximum amount to be expended therefor 
 during the fiscal year out of the contingent fund or funds appropriated for the 
 entire year for the department, and the amounts so apportioned shall not be 
 increased or diminished during the year for which made except upon the 
 written direction of the liead of the department, in which there sliall be fully 
 expressed his reasons therefor; and hereafter there shall not be purchased 
 out of any other fund any article for use in any office or bureau of any executive 
 department in Washington, District of Columbia, which could be purchased 
 out of the appropriations made for the regular contingent funds of such de- 
 partment or of its offices or bureaus. — (37 Stat., 414, chap. 350.) 
 
 The act of February 27, 1906 (34 Stat., 49), referred to in this section, amended and re- 
 enacted section 3679, Revised Statutes; see that section and note thereto. 
 
 [1912, Aug. 23, sec. 7. Telephones in private residences, etc.] That no money 
 appropriated by this or any other Act shall be expended for telephone service 
 installed in any private residence or private apartment or for tolls or other 
 charges for telephone service from private residences or private apartments, 
 except for long-distance telephone tolls required strictly for the public business, 
 and so shown by vouchers duly sworn to and approved by the head of the 
 department, division, bureau, or office in which the official using such telephone 
 or incurring the expense of such tolls shall be employed. — (37 Stat., 414, chap. 
 350.) 
 
 By a parap^aph in the naval appropriation act 
 of August 29, 1916 (39 Stat., 681), the 
 accounting officers of the Treasury were 
 "authorized and directed to allow in the 
 accounts of disbursing officers of the Navy 
 
 all payments for telephones in Govern- 
 ment quarters" which had been dis- 
 allowed under this section "by decision 
 of the comptroller. " 
 
 [1912, Aug. 23, sec. 8. Distribution of departmental publications by Public 
 Printer.] That no money appropriated by this or any other Act shall be used 
 after the first day of October, nineteen hundred and twelve, for services in any 
 executive department or other Government establishment at Washington, 
 District of Columbia, in the work of addressing, wrapping, mailing, or other- 
 wise dispatching any publication for public distribution, except maps, weather 
 reports, and weather cards issued by an executive department or other Govem- 
 
 1384 
 
Pt. 3. STATUTES AT LARGE. Aug. 24, 1912. 
 
 merit establishment at Washington, District of Columbia, or for the purchase 
 of material or supplies to be used in such work; and on and after October first, 
 nineteen hundred and twelve, it shall be the duty of the Public Printer to per- 
 form such work at the Government Printing Office. Prior to October first, 
 nineteen hundred and twelve, each executive department and other Govern- 
 ment establishment at Washington, District of Columbia, shall transfer to the 
 Public Printer such machines, equipment, and materials as are used in address- 
 ing, wrapping, mailing, or otherwise dispatching publications; and each head of 
 such executive department and other Government establishment at Washing- 
 ton, District of Columbia, shall furnish from time to time to the Public Printer 
 mailing lists, in convenient form, and changes therein, or franked slips, for use 
 in the public distribution of publications issued by such department or estab- 
 lishment; and the Public Printer shall furnish copies of any publication only in 
 accordance with the provisions of law or the instruction of the head of the de- 
 partment or establishment issuing the publication. The employment of all 
 persons in the several executive departments and other Government estab- 
 lishments at Washington, District of Columbia, wholly in connection with the 
 duties herein transferred to the Public Printer, or whose services can be dis- 
 pensed with or devolved upon another because of such transfer, shall cease and 
 determine on or before the first day of October, nineteen hundred and twelve, 
 and their salaries or compensation shall lapse for the remainder of the fiscal 
 year nineteen hundred and thirteen and be covered into the Treasury. A de- 
 tailed statement of all machines, equipment, and material transferred to the 
 Government Printing Office by operation of this provision and of all employ- 
 ments discontinued shall be submitted to Congress at its next session by the 
 head of each executive department and other Government establishments at 
 Washington, District of Columbia, in the annual estimates of appropriations: 
 Provided, That nothing in this section shall be construed as appl^nng to orders, 
 instructions, directions, notices, or circulars of information, printed for and 
 issued by any of the executive departments or other Government establish- 
 ments or to the distribution of public documents by Senators or Members of 
 the House of Representatives or to the folding rooms and document rooms of 
 the Senate or House of Representatives. — (37 Stat., 414^1.5, chap. 350.) 
 
 See act of January 12, 1895, sections 18, 61, 73, and 92 (28 Stat., 603, 610, 620, and 623). 
 
 [1912, Aug-. 23, sec. 9. Estimates, form and time of submission.] That until 
 otherwise provided by law, the regular annual estimates of appropriations for 
 expenses of the Government of the United States shall be prepared and sub- 
 mitted to Congress, by those charged with the duty of such preparation and 
 submission, only in the form and at the time now required by law, and in no 
 other form and at no other time. — (37 Stat., 415, chap. 350.) 
 
 See sections 430 and 3660, Revised Statutes, and laws noted thereunder. 
 
 [1912, Aug. 24, sec. 6. Estimates, lump sum appropriations ; notes in Book of 
 Estimates.] That there shall be submitted hereafter, in the annual Book of 
 Estimates following every estimate for a general or lump-sum appropriation, 
 except public buildings or other public works constructed under contract, a 
 statement showing in parallel columns: 
 
 1385 
 
Aug. 24, 1912. Pt. .?. STATUTES AT LARGE. 
 
 First, the niimbor of persons, if any, intended to be employed and the 
 rates of compensation to each, and the amounts contemplated to be expended 
 for each of any other o])jccts or classes of expenditm'cs specified or contemplated 
 in the estimate, including a statement of estimated unit cost of any construction 
 work pro})osed to be done; and 
 
 Second, the number of persons, if any, employed and the rate of compen- 
 sation paid each, and the amounts expended for each other object or class of 
 expenditure, and the actual unit cost of any construction work done, out of the 
 appropriation corresponding to the estimate so submitted, during the com- 
 pleted fiscal year next preceding the period for which the estimate is submitted. 
 
 Other notes shall not be submitted following any estimate embraced in 
 the annual Book of Estimates other than such as shall suggest changes in form 
 or order of arrangement of estimates and appropriations and reasons for such 
 changes.— (37 Stat., 487, chap. 355; 38 Stat., 680, chap. 223.) 
 
 This section was expressly amended and reen- 
 acted to read as above by act of August 1, 
 1914, section 10 (38 Stat, 680). 
 
 See sections 430 and 3600, ReAdsed Statutes, 
 
 and laws noted thereunder; see also act of 
 July 1, 1916, section 4 (39 Stat., 336), which 
 expressly modified this section in certain 
 particulars. 
 
 [1912, Aug. 24, sec. 7. Permanent appropriations defined.] No specific 
 or indefinite appropriation made hereafter in any regular annual appropriation 
 Act shall be construed to be permanent or available continuously without 
 reference to a fiscal year unless it belongs to one of the following five classes: 
 "Rivers and harbors," ''lighthouses," "fortifications," ''public buildings," 
 and "pay of the Navy and Marine Corps," last specifically named in and ex- 
 cepted from the operation of the provisions of the so-called "covering-in Act" 
 approved June twentieth, eighteen hundred and seventy-four, or unless it is 
 made in terms expressly providing that it shall continue available beyond the 
 fiscal year for which the appropriation Act in which it is contained makes 
 provision. — (37 Stat., 487, chap. 355.) 
 
 See Section 3689, Revised Statutes, and act of notes thereto; see also act of July 26, 1886, 
 
 June 20, 1874, section 5 (18 Stat., 110), and section 2, (24 Stat., 157). 
 
 [1912, Aug. 24, sec. 8. Oaths administered by chief clerks and other em- 
 ployees.] After June thirtieth, nineteen hundred and twelve, postmasters, 
 assistant postmasters, collectors of customs, collectors of internal revenue, 
 chief clerks of the various executive departments and bureaus, or clerks desig- 
 nated by them for the purpose, the superintendent, the acting superintendent, 
 custodian, and principal clerks of the various national parks and other Govern- 
 ment reservations, superintendent, acting superintendents, and principal clerks 
 of the different Indian superintendencies or Indian agencies, and chiefs of field 
 parties, are required, empowered, and authorized, when requested, to administer 
 oaths, required by law or otherwise, to accounts for travel or other expenses 
 against the United States, with like force and effect as officers having a seal; 
 for such services when so rendered, or when rendered on demand after said date 
 by notaries public, who at the time are also salaried officers or employees of the 
 United States, no charge shall be made; and on and after July first, nineteen 
 hundred and twelve, no fee or money paid for the services herein described 
 shall be paid or reimbursed by the United States, — (37 Stat., 487, chap. 355.) 
 See section 183, Revised Statutes, and note thereto. 
 
 1386 
 
PL 3. STATUTES AT LARGE. Aug. 24, 1912. 
 
 [1912, Aug. 24, sec. 9. Fur seals, etc. ; use of naval forces to protect.] 
 That it shall be the duty of the President to cause a guard or patrol to be main- 
 tained in the waters frequented by the seal herd or herds and sea otter, in the 
 protection of which the United States is especially interested, composed of naval 
 or other public vessels of the United States designated by him for such service; 
 and any officer of any such vessel engaged in such service and any other officers 
 duly designated by the President may search any vessel of the United States, 
 in port, or in territorial waters of the United States, or on the high seas, when 
 suspected of having violated, or being about to violate, the provisions of said 
 convention, or of this Act, or of any regulation made thereunder, and may seize 
 such vessel and the officers and crew thereof and bring them into the most 
 accessible port of the Territory or of any of the States mentioned in the eighth 
 section of this Act for trial. — (37 Stat., 501, chap. 373.) 
 
 Sec. 10. That any vessel or person described in the first section of this 
 Act offending or being about to offend against the prohibitions of the said con- 
 vention, or of this Act, or of the regulations made thereunder, may be seized 
 and detained by the naval or other duly commissioned officers of any of the par- 
 ties to the said convention other than the United States, except within the 
 territorial jurisdiction of one of the other of said parties, on condition, however, 
 that when such vessel or person is so seized and detained by officers of any 
 party other than the United States such vessel or person shall be delivered as 
 soon as practicable at the nearest point to the place of seizure, with the vritnesses 
 and proofs necessary to establish the offense so far as they are under the Control 
 of such party, to the proper official of the United States, whose courts alone 
 shall ha.ve jurisdiction to try the offense and impose the penalties for the same: 
 Provided, however, That the said officers of any party to said convention other 
 than the United States shall arrest and detain vessels and persons, as in this 
 section specified, only after such party, by appropriate legislation or otherwise, 
 shall have authorized the naval or other officers of the United States duly com- 
 missioned and instructed by the President to that end to arrest, detain, and 
 deliver to the proper officers of such party vessels and subjects under the juris- 
 diction of that Government offending against said convention or any statute 
 or regulation made by that Government to enforce said convention. The Presi- 
 dent of the United States shall determine by proclamation when such authority 
 has been given by the other parties to said convention, and his determination 
 shall be conclusive upon the question; and such proclamation may be modified, 
 amended, or revoked by proclamation of the President whenever, in his judg- 
 ment, it is deemed expedient. — (37 Stat., 501-502, chap. 373.) 
 
 thirtieth parallel of north latitude and 
 including the seas of Bering, Kamchatka, 
 Okhotsk, and Japan; nor shall any such 
 person or vessel kill, captxu-e, or piu-sue 
 sea otter in any of the waters mentioned 
 beyond the distance of three miles fi'om 
 the shore line of the territory of the United 
 States." 
 See notes to sections 1529 and 1536, Revised. 
 Statutes. 
 
 The first section of this act read as follows: 
 "That no citizen of the United States, nor 
 person owing duty of obedience to the laws 
 or the treaties of the United States, nor 
 any of their vessels, nor any vessel of the 
 United States, nor any person belonging 
 to or on board of such vessel, shall kill, 
 capture, or pursue, at any time or in any 
 manner whatever, any fur seal in the waters 
 of the north Pacific Ocean north of the 
 
 [1912, Aug. 24, sec. 3. Navy mail clerks, bonds.] That every Navy mail 
 clerk and assistant Navy mail clerk shall give bond to the United States in 
 
 54641'— 22 88 1387 
 
Aug. 24, 1912. Pt. 3. STATUTES A T LARGE. 
 
 such penal .sum as the Postmaster General may deem sufficient- for the faithful 
 performance of his duties as such clerk. — (37 Stat., 554, chap. 389.) 
 See act of May 27, 1908 (35 Stat., 417^18), and laws quoted thereunder. 
 
 [1912, Aug. 24, sec. 6. Civil service employees, discharge; right to petition 
 Congress, etc.] — That no person in the classified civil service of the United 
 States shall he removed therefrom except for such cause as will promote the 
 ofTioiency of said service and for reasons given in writing, and the person whose 
 removal is sought shall have notice of the same and of any charges preferred 
 against him, and be furnished with a copy thereof, and also be allowed a reason- 
 able time for personally answering the same in writing; and affidavits in sup- 
 port thereof; but no examination of witnesses nor any trial or hearing shall be 
 required except in the discretion of the officer making the removal; and copies 
 of charges, notice of hearing, answer, reasons for removal, and of the order of 
 removal shall be made a part of the records of the proper department or office, 
 as shall also the reasons for reduction in rank or compensation; and copies of the 
 same shall be furnished to the person affected upon request, and the Civil Serv- 
 ice Commission also shall, upon request, be furnished copies of the same 
 * * *. The right of persons employed in the civil service of the United 
 States, either individually or collective!}^, to petition Congress, or any Member 
 thereof, or to furnish information to either House of Congress, or to any com- 
 mittee or member thereof, shall not be denied or interfered with. — (37 Stat., 
 555, chap. 389.) 
 
 See act of August 23, 1912, section 4 (37 Stat., 
 413-414), and references thereunder; see 
 also note to section 416, Revised Statutes. 
 
 As to influencing legislation, see act of August 
 24, 1912, section 6 (37 Stat., 555), and note 
 to Constitution, Article I, section 1. 
 
 [1912, Aug. 24. Ordnance stores, sales by War Department; payment by 
 departments.] That hereafter when authorized transfers or sales of ordnance 
 or ordnance stores are made to another bureau of the War Department, or to 
 another executive department of the Government, payment therefor shall be 
 made by the proper disbursing officer of the bureau, office, or department con- 
 cerned. When the transaction is between two bureaus of the War Department, 
 the price to be charged shall be the cost price of the stores, including the cost 
 of inspection. When the transaction is between the Ordnance Department 
 and another executive department of the Government, the price to be charged 
 shall include the cost price of the stores and the costs of inspection and transpor- 
 tation.— (37 Stat., 589, chap. 391.) 
 
 See act of March 3, 1909 (35 Stat., 751), as to May 21, 1920, section 7 (41 Stat., 613), 
 
 sale of Army ordnance property to officers as to use of appropriations for interchange 
 
 of Navy and Marine Corps. of supplies, etc., between departments 
 
 See act of July 11, 1919 (41 Stat., 132), as and bureaus. 
 
 to interchange of supplies, etc., between See notes to sections 418 and 1135, Revised 
 
 Army and Navy without compensation. Statutes, as to transfers, etc., of Govem- 
 
 See acts of March 4, 1915 (38 Stat., 1084), and ment property. 
 
 [1912, Aug. 24, sec. 6. Cadet service, Naval Academy, not credited in Army.] 
 That hereafter the service of a cadet who may hereafter be appointed to the 
 United States Military Academy or to the Naval Academy shall not be counted 
 in computing for any purpose the length of service of any officer of the Army. — 
 (37 Stat., 594, chap. 391.) 
 
 See act of March 4, 1913 (37 Stat., 891). 
 
 1388 
 
notes to sections 169 and 416, Revised 
 Statutes, and see acts of June 22, 1906, 
 section 5 (34 Stat. ,449), and August 1, 1914, 
 section 12 (38 Stat., 680). 
 
 Ft. 3. STATUTES A T LARGE. Mar. 2, 1913. 
 
 [1912, Aug. 26, sec. 7. Lump sum employees, restrictions on salaries and 
 transfers.] That no part of any money contained herein or hereafter appro- 
 priated in lump sum shall be available for the payment of personal services 
 at a rate of compensation in excess of that paid for the same or similar services 
 during the preceding fiscal year; nor shall any person employed at a specific 
 salary be hereafter transferred and hereafter paid from a lump-sum appropria- 
 tion a rate of compensation greater than such specific salary, and the heads of 
 departments shall cause this provision to be enforced: Provided, That this sec- 
 tion shall not apply to mechanics, artisans, their helpers and assistants, 
 laborers, or any other employees whose duties are of similar character and 
 required in carrying on the various manufacturing or constructing operations 
 of the Government.— (37 Stat., 626, chap. 408; 37 Stat., 790, chap. 142.) 
 
 This section was expressly amended and 
 
 reenacted to read as above by act of 
 
 March 4, 1913, section 4 (37 Stat., 790). 
 See acts of October 6, 1917 (40 Stat., 383), 
 
 and March 28, 1918 (40 Stat., 498); see also 
 
 [1913, Feb. 26. Handwriting evidence.] That in any proceeding before a 
 court or judicial officer of the United States where the genuineness of the hand- 
 writing of any person may be involved, any admitted or proved handwriting 
 of such person shall be competent evidence as a basis for comparison by wit- 
 nesses, or by the jury, court, or officer conducting such proceeding, to prove or 
 disprove such genuineness. — ^(37 Stat., 683, chap, 79.) 
 
 See sections 859-906, Revised Statutes, as to 
 evidence in criminal proceedings, etc. ; 
 see also note to section 1624, Revised 
 
 [1913, Mar. 2. Naval records, transfer to the Navy Department; publication.] 
 That, within the limits of the appropriation herein made, the Secretary of War 
 is hereby authorized and directed to collect or copy and classify, with a view to 
 publication, the scattered military records of the Revolutionary War, including 
 all troops acting under State authority, and the Secretary of the Navy is hereby 
 authorized and directed to collect or copy and classify, with a view to publica- 
 tion, the scattered naval records of the Revolutionary War. 
 
 Sec. 2. That all such records in the possession or custody of any official 
 of the United States shall be transferred, the military records to the War De- 
 partment and the naval records to the Navy Department. 
 
 Sec. 3. That there is hereby appropriated for the purposes of this Act, out 
 of any money in the Treasury not otherwise appropriated, twenty-five thousand 
 dollars for the War Department and seven thousand dollars for the Navy 
 Department: Provided, That the aforesaid sums of money shall be expended, 
 respectively, under the direction of the Secretary of War and the Secretary of 
 the Navy, and that they shall make to Congress each year detailed statements 
 showdng how the money herein appropriated has been expended and to whom: 
 Provided further. That no part of the sum hereby appropriated shall be used 
 in the purchase of any such records that may be discovered either in the hands 
 of private owners or in public depositories. — (37 Stat., 723, chap. 94.) 
 
 See acts of April 27, 1904 (33 Stat., 403), and June 29, 1906 (34 Stat., 579); and see section 
 418, Revised Statutes, and note thereto. 
 
 1389 
 
 Statutes, articles 29 and 42, as to evi- 
 dence before courts-martial. 
 
Mar. 4, 1013. PL 3. STATUTES AT LARGE. 
 
 [1913, Mar. 4. Midshipman service, not credited as naval service.] Here- 
 after the service of a niidshipinaii at the United States Naval Academy, or 
 that of a cadet at the United States Mihtary Academy, who may hereafter be 
 appointed to the United States Naval Academy, or to the United States Mihtary 
 Academy, shall not be counted in computing for any purpose the length of 
 service of any officer in the Navy or in the Marine Corps. — (37 Stat., 891, 
 chap. 148.) 
 
 See note to next paragraph and see act of August 24, 1912 (37 Stat., 594). 
 
 [1913, Mar. 4. longevity pay, constructive service, precedence.] That so 
 much of an act entitled "An act to reorganize and increase the efficiency of the 
 personnel of the Navy and Marine Corps," approved March third, eighteen 
 hundred and ninety-nine, which reads as follows: ''and that all officers, includ- 
 ing warrant officers, who have been or may be appointed to the Navy from 
 civil life shall, on the date of appointment, be credited for computing their 
 pay, with five years' service," shall not apply to any person entering the Navy 
 from and after the passage of tliis act: Provided, That section fourteen hunderd 
 and eighty-six of the Revised Statutes shall not apply in the case of officers 
 who enter the Navy after the passage of this act and all such officers shall take 
 precedence when of the same grade according to their respective dates of com- 
 mission in that grade. — (37 Stat., 891-892, chap. 148.) 
 
 See note to section 1443, Re\ised Statutes, as 
 to length of service for retirement. 
 
 The pro\dsion of law quoted in this paragi-aph 
 is contained in section 13 of the Na\^ 
 personnel act approved March 3, 1899 
 (30 Stat., 1007). 
 
 See preceding paragraph as to midshipman 
 
 service. 
 See act of June 29, 1906 (34 Stat., 554), as to 
 
 cadet service during the civil war. 
 See note to section 1486, Revised Statutes, as 
 
 to constructive service for precedence. 
 See note to section 1556, Revised Statutes, as 
 
 to longevity pay. 
 
 [1913, Mar. 4. Pay on promotion from date stated in commission.] That 
 all officers of the Navy who, since the third day of March, eighteen hundred and 
 ninety-nine, have been advanced or may hereafter be advanced in grade or 
 rank pursuant to law shall be allowed the pay and allowances of the higher 
 grade or rank from the dates stated in their commissions. — (37 Stat., 892, 
 chap 148.) 
 
 See act of June 22, 1874 (18 Stat., 191); and see notes to sections 1561 and 1562, Revised 
 Statutes. 
 
 [1913, Mar 4. Leave of absence, civil employees, additional pay not allowed.] 
 That employees while taking their leaves of absence shall not receive compensa- 
 tion for services rendered during the period of such leave of absence in addition 
 to leave pay.— (37 Stat., 893, chap. 148.) 
 
 See note to section 1545, Re^•ised Statutes, as 
 to leaves of absence, employees at navy 
 yards and stations. 
 
 This was a proviso following a clause relating 
 to pay during the ensuing fiscal year for 
 "clerical, inspection, and messenger ser- 
 vice in navy yards, naval stations, and 
 purchasing pay offices." 
 
 [1913, Mar. 4. Contracts to be awarded by items.] That from and after 
 the passage of this act all awards of contracts for provisions for the Navy shall 
 be made by individual items; the contract for each item being awarded to the 
 lowest responsible bidder. — (37 Stat., 904, chap. 148.) 
 
 See sections 3718 and 3724, Revised Statutes, and notes thereto. 
 
 1390 
 
PL 3. STATUTES AT LARGE. 
 
 June 23, 1913. 
 
 [1913, Mar. 4. Servants in commissary department, Naval Academy.] 
 That hereafter such additional payments from the midsliipmen's commissary 
 fund as the superintendent of the Naval Academy may deem necessary may be 
 made to the servants authorized in the commissary department. — (37 Stat., 
 907, chap. 148.) 
 
 A slightly different provision was contained in 
 
 the act of August 22, 1912 (37 Stat.. 349). 
 
 See section 1527, Revised Statutes, and note 
 thereto. 
 
 [1913, Mar. 4. Sale of Marine Corps stores to naval and civilian personnel.] 
 Pro\T[sions, Marine Corps: * * * Provided, That hereafter so much of 
 this appropriation as may be necessary may be applied for the purchase, for 
 sale to officers, enlisted men, and civilian employees, of such articles of sub- 
 sistence stores as may from time to time be designated and under such regula- 
 tions as may be prescribed by the Secretary of the Navy. — (37 Stat., 909, 
 chap. 148.) 
 
 Above clause held to be permanent leg- 
 islation.^ — When the question of repeating the 
 above-quoted provision in the naval appropria- 
 tion act for the fiscal year 1918 was presented 
 to the House Committee on Naval Affairs, it 
 was decided not to do so, for the reason that the 
 committee concurred with the vieiy taken by 
 the Marine Headquarters that the clause above 
 quoted from the act of August 29, 1916, was 
 permanent legislation. This will be seen by 
 reference to the hearings before the Committee 
 on Naval Affairs of the House of Representa- 
 tives (64th_Cong., 2d sess., p. 365). That this 
 interpretation is correct there can be little 
 
 This clause was repeated in acts of June 30, 
 1914 (38 Stat., 411), March 3, 1915 (38 Stat., 
 949), and August 29, 1916 (39 Stat., 613), 
 after which it was omitted. 
 
 See act of March 3, 1909 (35 Stat., 768), as to 
 sale of stores to naval and ci\iUan personnel. 
 
 See act of August 29, 1916 (39 Stat. , 630), author- 
 izing sales of Army subsistence supplies to 
 officers and enlisted men of the Na\'y and 
 Marine Corps, and sales of Na^vy and Marine 
 Corps subsistence supplies to officers and 
 enlisted men of the Army. 
 
 See act of March 6, 1920 (41 Stat., 506, 507), 
 authorizing sale of Navy and Marine Corps 
 quartermaster supplies to officers and en- 
 listed men of the Coast Guard, and to offi- 
 cers of the Public Health Service. 
 
 See act of June 5, 1920 (41 Stat., 976), authoriz- 
 ing sale of Navy and Marine Corps sub- 
 sistence stores and other supplies to honor- 
 ably discharged officers and enUsted men 
 of the Army, Navy, and Marine Corps, 
 while receiving treatment from the Public 
 Health Service. 
 
 doubt, in view of the word "hereafter" con- 
 tained in the clause, it being well understood 
 that the said word makes permanent provisions 
 contained in appropriation acts. The words 
 "this appropriation" should be construed as 
 meaning, "the appropriation, 'Provisions, 
 Marine Corps. ' ' ' (File 26255-614, Feb. 4, 1921.) 
 
 [1913, May 1, sec. 3. Rented buildings, District of Columbia.] Hereafter 
 the statement of buildings rented within the District of Columbia for use of the 
 Government, required by the Act of July sixteenth, eighteen hundred and 
 ninety-two (Statutes at Large, volume twenty-seven, page one hundred and 
 ninety-nine) , shall indicate as to each building rented the area thereof in square 
 feet of available floor space for Government uses, the rate paid per square foot 
 for such floor space, the assessed valuation of each building, and what propor- 
 tion, if any, of the rental paid includes heat, light, elevator, or other service. — 
 (38 Stat., 3, chap. 1.) 
 
 See act of Julv 16, 1892 (27 Stat., 199), and laws noted thereunder; and see act of May 29, 
 1920, section 7 (41 Stat., 691). • 
 
 [1913, June 23, sec. 3. Estimates, official designated for preparation of.] 
 That hereafter the head of each executive department and other Government 
 establishment shall, on or before July first in every fiscal year, designate from 
 among the officials employed therein one person whose duty it shall be to super- 
 vise the classification and compilation of all estimates of appropriations, 
 
 1391 
 
Feb. 16, 1914. P/. .5. STATUTES AT LARGE. 
 
 including supplemental and deficiency estimates to be submitted by such de- 
 partment or establishment. In the performance of their duties persons so 
 designated shall have due regard for the rccfuirements of all laws respecting the 
 preparation of estimates, including the manner and time of their submission 
 through the Treasury Department to Congress; they shall also, as early as may 
 be practicable, eliminate from all such estimates unnecessary words and make 
 imiform the language commonly used in expressing purposes or conditions of 
 appropriations. — (38 Stat., 75, chap. 3.) 
 
 [1913, July 9. Midshipmen.] Midshipmen on graduation shall be com- 
 missioned ensigns in the Navy, or may be assigned by the Secretary of the 
 Navy to fill vacancies in the lowest commissioned grades of the Marine Corps 
 or Staff Corps of the Navy.— (38 Stat., 103.) 
 
 [1913, Dec. 19. Major general commandant, Marine Corps; tenure of office, 
 etc.] That hereafter when a vacancy shall exist in the position of commandant 
 of the Marine Corps the President may appoint to such position, by and with 
 the advice and consent of the Senate, an officer of the Marine Corps on the 
 active list not below the grade of field officer, who shall hold office as such 
 commandant for a term of four years, unless sooner relieved, and who, while so 
 serving, shall have the rank, pay, and allowances of a major general in the 
 Army; and any officer appointed under the provisions of this Act who shall be 
 retired from the position of commandant of the Marine Corps, in accordance 
 with the provisions of sections twelve hundred and fifty-one, sixteen hundred 
 and twenty-two, and sixteen hundred and twenty-three. Revised Statutes of 
 the United States, or by reason of age or length of service, shall have the rank 
 and retired pay of a major general; if retired for any other reason, he shall be 
 placed on the retired list of officers of the grade to which he belonged at the time 
 of his retirement: Provided, That an officer serving as commandant shall be 
 carried as an additional number in his grade while so serving, and after his 
 return to duty in his grade until said grade is reduced to the nimiber authorized 
 by law: Provided further, That nothing herein contained shall operate to 
 increase or reduce the total number of officers in the Marine Corps now provided 
 by law.— (38 Stat., 241, chap. 3.) 
 
 See notes to sections 1601 and 1622, Revised Statutes, and act of August 29, 1916 (39 
 Stat., 609). 
 
 [1914, Feb. 16, sec. 21. Civilians commissioned in Regular Navy in time of 
 war ; reappointment of former officers ; etc.] That, for the purpose of securing a 
 list of persons especially qualified to hold commissions in the Navy or in any 
 reserve or volunteer naval force which may hereafter be called for and organ- 
 ized under the authority of Congress, other than a force composed of Organized 
 Naval Militia, the Secretary of the Navy is authorized from time to time to 
 convene examining boards at suitable and convenient places in different parts 
 of the United States, who shall examine as to then* qualifications for naval 
 duties all applicants who shall have served in the Regular Navy of the United 
 States or in the Organized Naval Militia of any State or Territory or the Dis- 
 trict of Columbia. Such examination shall be under rules and regulations 
 
 1392 
 
Ft. 3. STATUTES AT LARGE. Mar. 12, 1914. 
 
 prescribed by the Secretary of the Navy. The record of previous service of the 
 apphcant shall be considered as part of the examination. Those applicants 
 who pass such examinations shall be certified as to their fitness for naval duties 
 and rank, and shall, subject to a physical examination at any time, constitute 
 an eligible class for commissions, pursuant to such certification, in any volunteer 
 naval force hereafter called for and organized under the authority of Congress 
 other than a force composed of Organized Naval Militia; and the President is 
 hereby further authorized, upon the outbreak of war, or when, in his opinion, 
 war is imminent, to commission in the Regular Navy for the exigency of such 
 war such of the persons whose names have been certified as above provided as 
 he may select: Provided, That no one shall be commissioned to a higher rank 
 than the rank for which he may have been recommended by said examining 
 board: And provided further, That the President may also commission or war- 
 rant as of the highest rank formerly held by him, or the present equivalent of 
 such former rank in case the nomenclature or some of the specific duties of the 
 same may have been changed, any person who having been formerly a com- 
 missioned or warrant officer of the United States Navy shall have been honor- 
 ably discharged from the service: And 'provided further , That persons may be 
 commissioned in the Navy for engineer duties only, and for all line duties other 
 than engineer duties, and when so conmiissioned shall have the full rank, pay, 
 precedence, and so forth, of the line grade for which they are commissioned. — 
 (38 Stat., 289-290, chap. 21.) 
 
 The remaining sections of this act related to 
 the Naval Militia, and were repealed by 
 act of July 1, 1918 (40_Stat., 708), and later 
 revived, in part, until June 30, 1922, by 
 act of June 4, 1920 (41 Stat., 817). 
 
 See act of August 29, 1916 (39 Stat., 587), creat- 
 ing a Naval Reserve Force, and amend- 
 ments noted thereunder; see also note to 
 section 1363, Revised Statutes. 
 
 As to officers for engineering duty only, see acts 
 of August 29, 1916 (39 Stat., 580), and 
 March 3, 1915 (38 Stat., 930); see also notes 
 to sections 1390, 1404, and 1488, Revised 
 Statutes. 
 
 Former oflB.cer dismissed from the Navy; 
 effect of pardon. — The act of February 16, 
 1914, section 21 (38 Stat., 290), by its terms 
 applies only to officers who have been "honor- 
 ab 1 y discharged from the service . ' ' Und er that 
 act, an officer of the Navy who has been dis- 
 missed by sentence of court-martial, and subse- 
 quently pardoned for the offense, is ineligible 
 for reappointment to the Navy. (31 Op. Atty. 
 Gen., 225; see also sec. 1441, Revised Statutes, 
 and act of Aug. 29, 1916, 39 Stat., 587-588; and 
 see note to Constitution, Art. II, sec. 2, clause 1, 
 as to effect of pardon.) 
 
 [1914, Mar. 12. Alaskan railroads; transportation of coal; employment 
 of naval officers, etc.] That the President of the United States is hereby em- 
 powered, authorized, and directed to adopt and use a name by which to desig- 
 nate the railroad or railroads and properties to be located, owned, acquired, 
 or operated under the authority of this Act; to employ such officers, agents, or 
 agencies, in his discretion, as may be necessary to enable him to carry out the 
 purposes of this Act; to authorize and require such officers, agents, or agencies 
 to perform any or all of the duties imposed upon him by the terms of this Act; 
 to detail and require any officer or officers in the Engineer Corps in the Army 
 or Navy to perform service under this Act; to fix the compensation of all officers, 
 agents, or employees appointed or designated by him; to designate and cause 
 to be located a route or routes for a line or lines of railroad in the Territory of 
 Alaska not to exceed in the aggregate one thousand miles, to be so located as 
 to connect one or more of the open Pacific Ocean harbors on the southern 
 
 1393 
 
May 8, 1914. Ft. 3. S TA TUTES A T LARGE, 
 
 coast of Alaska with the navigable waters in the interior of Alaska, and with 
 a coal field or fields so as best to aid in the development of the agricultural and 
 mineral or other resources of Alaska, and the settlement of the public lands 
 therein, and so as to provide transportation of coal for the Army and Navy, 
 transportation of troops, arms, munitions of war, the mails, and for other 
 governmental and public uses, and for the transportation of passengers and 
 property; to construct and build a railroad or railroads along such route or 
 routes as he may so designate and locate * * *. — (38 Stat., 305, 306, 
 chap. 37.) 
 
 See acts of October 20, 1914, section 2 (38 Stat., 741), and May 28, 1908, section 2 (35 Stat., 
 424); see also section 3711, Revised Statutes. 
 
 [1914, Apr. 6. Subsistence for travel outside District of Columbia.] On and 
 after July first, nineteen hundred and fourteen, unless otherwise expressly 
 provided by law, no officer or employee of the United States shall be allowed 
 or paid any sum in excess of expenses actually incurred for subsistence wliile 
 traveling on duty outside of the District of Columbia and away from his desig- 
 nated post of duty, nor any sum for such expenses actually incurred in excess 
 of $5 per day; nor shall any allowance or reimbursement for subsistence be 
 paid to any ofiicer or employee in any branch of the public service of the United 
 States in the District of Colimibia unless absent from his designated post of 
 duty outside of the District of Columbia, and then only for the period of time 
 actually engaged in the discharge of official duties. — (38 Stat., 318, chap. 52.) 
 
 See act of August 1, 1914, section 13 (38 Stat., 680), and see note to section 1566, Revised 
 Statutes. 
 
 [1914, Apr. 6, sec. 6. Efficiency experts, restrictions on employment of, 
 etc.] That no part of any money appropriated in this or any other Act shall be 
 used for compensation or payment of expenses of accountants or other experts 
 in inaugurating new or changing old methods of transacting the business of 
 the United States or the District of Columbia unless authority for employment 
 of such services or pajonent of such expenses is stated in specific terms in the Act 
 making provision therefor and the rate of compensation for such services or 
 expenses is specifically fixed therein, or be used for compensation of or expenses 
 for persons, aiding or assisting such accountants or other experts, unless the 
 rate of compensation of or expenses for such assistants is fixed by officers or 
 employees of the United States or District of Columbia having authority to 
 do so, and such rates of compensation or expenses so fixed shall be paid only 
 to the person so employed. — (38 Stat., 335, chap. 52.) 
 
 [1914, May 8. Red Cross, loan of naval equipment, etc.] That the Secretary 
 of War and the Secretary of the Navy be, and are hereby, authorized to issue, 
 each at his discretion and under proper regulations to be prescribed by him, 
 out of equipment for medical and other establishments on hand, belonging to 
 the Government and which can be temporarily spared, such articles as may 
 appear to be required for instruction and practice by organizations formed by 
 the American National Red Cross, for the purpose of rendering aid to the Army 
 and Navy in war. 
 
 Sec. 2. That the regulations prescribed by the Secretary of War or by 
 the Secretary of the Navy, in pursuance of the authority granted by section 
 
 1394 
 
PL 3. STATUTES AT LARGE. June 30, 1914. 
 
 one, shall provide for the immediate return of the articles of equipment loaned 
 the American National Red Cross when called for by the authority wliich issued 
 them; and the said Secretaries shall require a bond in each case, in double the 
 value of the property, for the care and safe-keeping thereof and for the return 
 of the same when required. — (38 Stat., 771, Res. No. 15.) 
 
 Seeacteof April 24, 1912 (37 Stat., 90-91), and section 418, Revised Statutes, and note 
 
 August 29, 1916 (39 Stat., 581); see also 
 
 thereto. 
 
 [1914, Jnne 30. Mileage, not paid if transportation furnished.] That here- 
 after no mileage shall be paid to any officer where Government transporta- 
 tion is furnished such officer. — (38 Stat., 393, chap. 130.) 
 
 of the Navy. An identical pro\d8ion was 
 contained in the same act (38 Stat., 410), 
 under the heading, '•Marine Corps," sub- 
 heading, "Mileage." 
 
 See notes to sections 1566 and 1612, Revised 
 
 Statutes. 
 The above proviso was contained in the act 
 
 cited, under "Pay, Miscellaneous," which 
 
 made appropriation for mileage of officers 
 
 [1914, June 30. Naval Home, effects of deceased inmates.] That hereafter 
 all moneys belonging to a deceased beneficiary of the Naval Home or derived 
 from the sale of his personal efi^ects, not claimed by his legal heirs or next of 
 kin, shall be deposited with the pay officer of the Naval Home, and if any sum 
 so deposited has been or shall hereafter be unclaimed for a period of two years 
 from the death of such beneficiary it shall be deposited m. the Treasury to the 
 credit of the naval pension fund: And 'provided further, That the governor of 
 the Naval Home is hereby authorized and directed, under such regulations as 
 may be prescribed by the Secretary of the Navy, to make diligent inquiry in 
 every instance after the death of an inmate to ascertain the whereabouts of 
 his heirs or next of kin: And provided further, That claims may be presented 
 hereunder at any time within five years after moneys have been so deposited 
 in the Treasury, and, when supported by competent proof in any case after 
 such deposit in the Treasury, shall be certified to Congress for consideration. — 
 (38 Stat., 398, chap. 130.) 
 
 A somewhat different pro\dsion on the same 
 subject was contained in act of August 22, 
 1912 (37 Stat., 335). 
 
 [1914, June 30. Naval Home, pensions of inmates.] That the pensions of 
 beneficiaries of the Naval Home shall be disposed of in the same manner as 
 prescribed for iimiates of the Soldiers' Home, as provided for in section four of 
 the act approved March third, eighteen hundred and eighty-three, under such 
 regulations as the Secretary of the Navy may prescribe, except that in the 
 case of death of any beneficiary leaving no heirs at law nor next of kin any 
 pension due him shall, subject to the foregoing provisions, escheat to the naval 
 pension fund. — (38 Stat., 398, chap. 130.) 
 
 See note to section 4756, Revised Statutes, and 
 
 see 31 Op. Atty. Gen., 268. 
 See act of March 3, 1883, section 4 (22 Stat., 
 
 [1914, June 30. Purchase of shells and projectiles.] That hereafter no part 
 of any appropriation shall be expended for the purchase of shells or projectiles 
 for the Navy except for shells or projectiles purchased in accordance with the 
 terms and conditions of proposals submitted by the Secretary of the Navy to 
 all the manufacturers of shells and projectiles and upon bids received in accord- 
 
 1395 
 
 See sections 4750, 4810-4818, Revised Statutes, 
 and notes thereto. 
 
 564), quoted under section 4813, Revised 
 Statutes. 
 
June 30, 1914. Pt. S. STATUTES AT LARGE. 
 
 anco with the terms and requirements of such proposals: Provided, That this 
 restriction shall not apply to purchases of shells or projectiles of an experi- 
 mental nature or to be used for experimental purposes and paid for from the 
 appropriation ''Experiments, Bureau of Ordnance." — (38 Stat., 398-399, 
 chap. 130.) 
 A similar provision was contained in act of See sections 3718 and 3721, Revised Statutes, 
 
 March 4, 1913 (37 Stat., 896) 
 
 and notes thereto. 
 
 [1914, June 30. Purchases abroad, free of duty.] That hereafter the Sec- 
 retary of the Navy is hereby authorized to make emergency purchases of war 
 material abroad: And provided further, That when such purchases are made 
 abroad, this material shall be admitted free of duty. — (38 Stat., 399, chap. 130.) 
 
 See sections 3723, 3725, and 3728, Revised 
 Statutes, and notes thereto. 
 
 Similar provisions, without the word '"here- 
 after,"' were contained in acts of August 
 22, 1912 (37 Stat., 335), and March 4, 1913 
 (37 Stat., 896). 
 
 [1914, June 30. Enlisted men, daily average number.] That hereafter the 
 number of enlisted men of the Navy and Marine Corps provided for shall be 
 construed to mean the daily average number of enlisted men in the naval 
 service during the fiscal year. — (38 Stat., 403, chap. 130.) 
 
 See sections 1417 and 1596, Revised Statutes, and notes thereto. 
 
 [1914, June 30. Acting chaplains, appointment, rank, and pay.] The grade 
 of acting chaplain in the Navy is hereby authorized and created, and hereafter 
 original appointments shall be made by the Secretary of the Navy, not to exceed 
 the number hereinafter provided, in the grade of acting chaplains in the Navy 
 after such examination as may be prescribed by the Secretary of the Navy, and 
 while so serving acting chaplains shall have the rank, pay, and allowances of 
 lieutenant, junior grade, in the Navy. After three years' sea service on board 
 ship each acting chaplain before receiving a commission in the Navy shall 
 establish to the satisfaction the Secretary of the Navy by examination by a 
 board of chaplains and medical officers of the Navy his physical, mental, moral, 
 and professional fitness to perform the duties of chaplain in the Navy, and if 
 found so qualified, shall be commissioned a chaplain in the Navy with the rank 
 of lieutenant, junior grade. If any acting chaplain shall fail on the examina- 
 tions herein prescribed he shall be honorably discharged from the naval service, 
 and the appointment of any acting chaplain may be revoked at any time in the 
 discretion of the Secretary of the Navy. — (38 Stat., 403, chap. 130.) 
 
 See notes to sections 1395-1398, 1410, and 1556, 
 Revised Statutes. 
 
 Retirement. — An acting chaplain who fails 
 physically on examination for commission can 
 not be retired. (FUe 15721-22:1, Mar. 8, 1922.) 
 
 [1914, June 30. Acting chaplains and chaplains, total number; rank and 
 pay of chaplains.] Hereafter the total number of chaplains and acting chap- 
 lains in the Navy shall be one to each twelve hundred and fifty of the total 
 personnel of the Navy and Marine Corps as fixed by law, including midshipmen, 
 apprentice seamen, and naval prisoners, and of the total number of chaplains 
 and acting chaplains herein authorized ten per centum thereof shall have the 
 rank of captain in the Navy, twenty per centum the rank of commander, 
 twenty per centum the rank of lieutenant commander, and the remainder to 
 have the rank of lieutenants and lieutenants, junior grade. 
 
 1396 
 
Pt. 3. STATUTES AT LARGE. 
 
 June 30, 1914. 
 
 Naval chaplains hereafter commissioned from acting chaplains shall have 
 the rank, pay, and allowances of lieutenants, jmiior grade, in the Navy until 
 they shall have completed four years' service in that grade, when, subject to 
 examination as above prescribed, they shall have the rank, pay, and allowances 
 of lieutenant in the Navy, a nd chaplains with the rank of lieutenant shall have 
 at least four years' service in that grade before promotion to the grade of 
 lieutenant commander, after which service, chaplains shall be promoted as 
 vacancies occur to the grades of lieutenant commander, commander, and 
 captain: Provided, That not more than seven acting chaplains shall be com- 
 missioned chaplains in any one year: And provided further, That no provision 
 of this section shall operate to reduce the rank, pay, or allowances that would 
 have been received by any person in the Navy except for the passage of this 
 section, and that all laws or parts of laws inconsistent with the provisions of 
 this section be, and the same are hereby, repealed. — (38 Stat., 404, chap. 130.) 
 
 See notes to sections 1395-1398 and 1556, Re- 
 
 \'ised Statutes. 
 See note to section 1457, Revised Statutes, 
 
 under "Distinction between 'rank' and 
 
 'grade.'" 
 
 See note to section 1479, Revised Statutes, 
 under "Advancement in rank and pro- 
 motion of chaplains." 
 
 [1914, June 30. Naval supply account, law amended.] Those portions of 
 the acts of June twenty-fifth, nineteen hundred and ten, and March fourth, 
 nineteen hundred and eleven, which create the ''Naval supply account" under 
 the Bureau of Supplies and Accounts, are hereby so modified and amended 
 that hereafter the appraised value of all stores, equipage, and supplies turned 
 in from ships, and ships' equipage turned in from yards or stations (except 
 salvage), shall be credited to the current appropriations concerned, and the 
 amounts so credited shall be available for expenditures for the same pm^poses 
 as the appropriations credited ; and all acts or parts of acts in so far as they 
 conflict with this provision are hereby repealed. — (38 Stat., 405, chap. 130.) 
 
 See act of March 4, 1911 (36 Stat., 1279), and note thereto. 
 
 [1914, June 30. Issue of flags used for draping coffins.] That the Secretary 
 of the Navy be authorized at his discretion to issue free of cost the national flag 
 (United States national ensign No. 7) used for draping the coffin of any officer 
 or enlisted man of the Navy or IVTarine Corps whose death occurs while in the 
 service of the United States Navy or Marine Corps, upon request, to the relatives 
 of the deceased officer or enlisted man or upon request, to a school, patriotic 
 order, or society to which the deceased officer or man belonged. — (38 Stat., 
 406, chap. 130.) 
 
 See note to section 418, Revised Statutes, 
 
 [1914, June 30. Bureau of Equipment abolished.] The Bureau of Equip- 
 ment of the Navy Department is hereby abolished, and the duties assigned by 
 law to that bureau shall be distributed among the other bureaus and offices 
 of the Navy Department as herein provided, and all available funds heretofore 
 appropriated for that bureau and such civil employees of that bureau as were 
 heretofore authorized by law are hereby assigned and transferred to the other 
 bureaus and offices as herein provided: Provided, That nothing herein shall be 
 so construed as to authorize the expenditm-e of any appropriation for purposes 
 
 1397 
 
Aug. 1, 1914. 
 
 Ft. S. STATUTES AT LARGE. 
 
 other than those specifically provided by the terms of the appropriations hereto- 
 fore and herein made. — (38 Stat., 408, chap. 130.) 
 
 Temporary provisions for distribution of the 
 duties, funds, and employees of the 
 Bureau of Equipment amon^ the other 
 bureaus and offices of the Navy Department 
 
 were contained in the naval appropriation 
 acts for the fiscal years 1911-1914. 
 See section 419, Revised Statutes, and note 
 thereto. 
 
 [1914, June 30. Overhead charges, how distributed.] Hereafter there shall 
 be charged against the several appropriations for the support of the Naval 
 Establishment the overhead charges incident to upkeep and to industrial work 
 at navy yards and stations. The total sum so charged shall be distributed in 
 accordance with the work done in the various yards and stations in order that 
 the cost of work may be determined. — (38 Stat., 413-414.) 
 
 See act of March 4, 19] 1 (36 Stat., 1267), as to direct and indirect charges being included 
 in cost of work, and reported annually to Congress. 
 
 [1914, July 16, sec. 5. Passenger vehicles, restrictions on purchase and 
 
 maintenance.] No appropriation made in this or any other Act shall be avail- 
 able for the pm'chase of any motor-propelled or horse-drawn passenger-carrying 
 vehicle for the service of any of the executive departments or other Govern- 
 ment establishments, or any branch of the Government service, unless specific 
 authority is given therefor, and after the close of the fiscal year nineteen liun- 
 dred and fifteen there shall not be expended out of any appropriation made 
 by Congress any sum for purchase, maintenance, repair, or operation of motor- 
 propelled or horse-drawn passenger-carrying vehicles for any branch of the 
 public service of the United States unless the same is specifically authorized 
 by law, and in the estimates for the fiscal year nineteen hundred and sixteen 
 and subsequent fiscal years there shall be submitted in detail estimates for 
 such necessary appropriations as are intended to be used for purchase, main- 
 tenance, repair, or operation of all motor-propelled or horse-drawn passenger- 
 carrying vehicles, specifying the sums required, the public purposes for which 
 said vehicles are intended, and the ofl3.cials or employees by whom the same 
 are to be used. (38 Stat., 508-509, chap. 141.) 
 
 See acts of March 18, 1904, section 3 (33 Stat., 142), and February 3, 1905, section 4 (33 
 
 Stat., 687-688). 
 
 [1914, Aug. 1, sec. 12. Lump-sum employees, restrictions on compensation.] 
 That it shall not be lawful hereafter to pay to any person, employed in the 
 service of the United States under any general or lump smn appropriation, 
 any sum additional to the regular compensation received for or attached to any 
 employment held prior to an appointment or designation as acting for or in- 
 stead of an occupant of any other office or employment. This provision 
 shall not be construed as prohibiting regular and permanent appointments 
 by promotion from lower to higher grades of employments. — (38 Stat., 680, 
 chap. 223.) 
 
 See act of August 26, 1912, section 7 (37 Stat., 626), and references thereunder. 
 
 [1914, Aug. 1, sec. 13. Per diem in lieu of subsistence; estimates of appro- 
 priations.] That the heads of executive departments and other Government 
 establishments are authorized to prescribe per diem rates of allowance not 
 exceeding $4 in lieu of subsistence to persons engaged in field work or traveling 
 
 1398 
 
Pt. 3. STATUTES AT LARGE. 
 
 Oct. 13, 1914. 
 
 See act of April 6, 1914 (38 Stat., 318), as to 
 subsistence allowance. 
 
 on official business outside of the District of Columbia and away from their 
 designated posts of duty when not otherwise fixed by law. For the fiscal 
 year nineteen hundred and sixteen and annually thereafter estimates of appro- 
 priations from which per diem allowances are to be paid shall specifically state 
 the rates of such allowances. — (38 Stat., 680-681, chap. 223.) 
 
 See note to section 430, Revised Statutes, as 
 to estimates of appropriations. 
 
 [Aug. 25, 1914. Naval Petroleum Reserves, use of proceeds; fund created.] 
 Any money which may accrue to the United States under the provisions of this 
 Act from lands within the Naval Petroleum Reserves shall be set aside for the 
 needs of the Navy and deposited in the Treasury to the credit of a fund to be 
 known as the Navy Petroleum Fund, which fund shall be applied to the needs 
 of the Navy as Congress may from time to time direct, by appropriation or 
 otherwise.— (38 Stat., 709, chap. 287.) 
 
 This clause was part of an act pro\dding for 
 agreements to be entered into by the Sec- 
 retary of the Interior, with parties in 
 possession of oil and gas lands, as to the 
 disposition of oil or gas produced therefrom, 
 
 or the proceeds thereof, pending final deter- 
 mination of title to the land. 
 See act of February 25, 1920 (41 Stat., 437, et 
 seq.); see also section 3689. Revised Stat- 
 utes, and note thereto. 
 
 [1914, Oct. 13. Naval officers, appointments to office in Brazil; leaves of 
 
 absence.] 
 
 Whereas the Republic of Brazil has recently established the Naval War Col- 
 lege of Brazil at Rio de Janeiro, Brazil, and is desirous that two com- 
 missioned officers of the line of the Navy of the United States experienced 
 in naval war college work be permitted to serve therein as instructors in 
 naval strategy and tactics ; and 
 Whereas the United States of America wishes to show its friendly feeling for the 
 Republic of Brazil by complying with its desire : Now, therefore, be it 
 Resolved hy the Senate and House of Representatives of the United States of 
 America in Congress assembled, That the President be, and he is hereby, author- 
 ized, in his discretion, to grant leave of absence to not more than two com- 
 missioned officers of the line of the Navy of the United States to assist the 
 Republic of Brazil as instructors in naval strategy and tactics in the Naval 
 War College of Brazil, in pursuance of an arrangement to be made between such 
 officers so detailed and the Government of Brazil; and that such officers while 
 absent on such leave be, and they are hereby, authorized to accept from the 
 Government of Brazil the said employment with compensation from the said 
 Government: Provided, however, That the permission so given shall be held to 
 terminate at such date as the President may determine. To insure the con- 
 tinuance of this work during such time as may be desirable, the President may 
 have the power of substitution in case of the termination of the detail of an 
 officer for any cause; and that the officers, while so absent in the service of the 
 Republic of Brazil, shall receive no pay or allowances from the United States 
 Government.— (38 Stat., 750, Res. No. 48.) 
 
 See act of June 12, 1916 (39 Stat., 223), as to 
 Haiti; act of February 11, 1918 (40 Stat., 
 437 \ as to Dominican Republic; and act 
 of June 5, 1920 (41 Stat., 1056), as to all 
 
 South American Republics; see also note 
 to Constitution, Article I, section 9, 
 clause 8. 
 
 1399 
 
Mar. 3, 1916. 
 
 Pt. 3. STATUTES AT LARGE. 
 
 [1914, Oct. 20, sec. 2. Alaskan coal lands; use of for Navy, etc.] That the 
 President of the United States shall designate and reserve from use, location, 
 sale, lease, or disposition not exceeding five thousand one hundred and twenty 
 acres of coal-bearing land in the Bering River field and not exceeding seven 
 thousand six hundred and eighty acres of coal-bearing land in the Matanuska 
 field, and not to exceed one-half of the other coal lands in Alaska: Provided, 
 Tluit the coal deposits in such reserved areas may be mined under the direction 
 of the President when, in his opinion, the mining of such coal in such reserved 
 areas, under the direction of the President, becomes necessary, by reason of an 
 insuflicient supply of coal at a reasonable price for the requirements of Govern- 
 ment works, construction and operation of Government railroads, for the 
 Navy, for national protection, or for relief from monopoly or oppressive condi- 
 tions.— (38 Stat., 742, chap. 330.) 
 
 See acts of May 2S, 1908, section 2 (35 Stat., 
 424), March 12, 1914 (38 Stat., 305-306), 
 
 and June 4, 1920 (41 Stat., 826); see also 
 section 3711, Revised Statutes. 
 
 [1916, Jan. 28. Coast Guard established; service with Navy; expenses; 
 etc.] That there shall be established in lieu of the existing Revenue-Cutter 
 Service and the Life-Saving Service, to be composed of those two existing 
 organizations, with the existing ofhces and positions and the incumbent officers 
 and men of those two services, the Coast Guard, which shall constitute a part 
 of the military forces of the United States and which shall operate under the 
 Treasury Department in time of peace and operate as a part of the Navy, 
 subject to the orders of the Secretary of the Navy, in time of war or when the 
 President shall so direct. When subject to the Secretary of the Navy in time 
 of war the expense of the Coast Guard shall be paid by the Navy Department: 
 Provided, That no provision of this Act shall be construed as giving any officer 
 of either the Coast Guard or the Navy, military or other control at any time 
 over any vessel, officer, or man of the other service except by direction of the 
 President.— (38 Stat., 800-801, chap. 20.) 
 
 This section was modified by act of August 29, 
 1916 (39 Stat., 600); see also act of October 
 
 6, 1917 (40 Stat., 393-394), and notes to 
 sections 1492 and 2757, Re\ised Statutes. 
 
 [1915, Mar. 3. National Home for Disabled Volunteer Soldiers; admission 
 to.] The following persons only shall hereafter be entitled to the benefits of 
 the National Home for Disabled Volunteer Soldiers, and may be admitted 
 thereto upon the order of a member of the board of managers, namely: All 
 honorably discharged officers, soldiers, and sailors who served in the regular, 
 volunteer, or other forces of the United States in any war in which the country 
 has been or is engaged, including the Spanish American War, the Provisional 
 Army (authorized by Act of Congress approved IVIarch second, eighteen hun- 
 dred and ninety-nine) , in any of the campaigns against hostile Indians, or who 
 have served in the Philippines, in China, or in Alaska, or in the Organized 
 Militia or National Guard when called into the Federal service to enforce the 
 laws, suppress insurrection, or repel invasion, who are disabled by disease, 
 wounds, or otherwise and have no adequate means of support, and who are not 
 otherwise provided for by law, and by reason of such disability are incapable 
 of earning their living. — (38 Stat., 853, chap. 75; 40 Stat., 368, chap. 79.) 
 
 1400 
 
Pt. 3. STATUTES AT LARGE. 
 
 Mar. 3, 1915. 
 
 This provision was expressly amended and re- See sections 4810 et seq., Re\'ised Statutes, and 
 enacted to read as above by act of October notes thereto, as to Naval Home. 
 
 6, 1917 (40 Stat., 368). 
 
 [1915, Mar. 3. Newspapers and periodicals, payment in advance.] News- 
 papers and periodicals for the naval ser\4ce (hereafter subscriptions may be 
 paid for in advance). — (38 Stat., 929, chap. 83.) 
 
 See act of March 4, 1915, section 5 (38 Stat., 1049), as to subscriptions to "periodicals." 
 See also section 192, Revised Statutes, and note thereto. 
 
 [1915, Mar. 3. Chief of Naval Operations, tenure and duties.] Tliere shall be a 
 Chief of Naval Operations, who shall be an officer on the active list of the Navy 
 appointed by the President, by and with the advice and consent of the Senate, 
 from among the officers of the line of the Navy not below the grade of captain 
 for a period of four years, who shall, under the direction of the Secretary of the 
 Navy, be charged with the operations of the fleet, and with the preparation 
 and readiness of plans for its use in war. 
 
 During the temporary absence of the Secretary and the Assistant Secretary 
 of the Navy, the Chief of Naval Operations shall be next in succession to act as 
 Secretary of the Navy.— (38 Stat., 929, chap. 83.) 
 
 Amendments to this provision were made by acts of August 29 1916 (39 Stat., 558), and 
 July 1, 1918 (40 Stat., 716). 
 
 [1915, Mar. 3. Useless papers at navy yards and stations, disposal of.] 
 That the act "To authorize and provide for the disposal of useless papers in 
 the executive departments," approved February sixteenth, eighteen hundred 
 and eighty-nine, is hereby amended so that accumulations in the files of navy 
 yards and naval stations that, in the judgment of the Secretary of the Navy, 
 are not needed or useful in the transaction of current business and have no 
 permanent value or historical interest may be disposed of by the Secretary of 
 the Navy by sale, after advertisement for proposals as waste paper if practi- 
 cable, or if not practicable then otherwise as may appear best for the interests of 
 the Government, the said Secretary to make detailed report to the Congress in 
 every case of the papers destroyed; Provided always That no papers less than 
 two years old from the date of the last indorsement thereon shall be destroyed 
 or disposed of by the Secretary of the Navy, except in the manner provided in 
 said act of February sixteenth, eighteen hundred and eighty-nine. — (38 Stat., 
 929-930, chap. 83.) ' 
 
 See act of August 22, 1912 (37 Stat., 329-330), and laws noted thereunder. 
 
 [1915, Mar. 3. Duties of engineering and construction officers.] Hereafter 
 officers who now perform engineering duty on shore only and officers of the 
 Construction Corps shall be eligible for any shore duty compatible with their 
 ranlv and grade to which the Secretary of the Navy may assign them, — (38 
 Stat., 930, chap. 83.) 
 
 A similar provision, without the word "here- 
 after," was contained in act of June 30, 
 1914 (38 Stat., 394). 
 
 See notes to sections 1390 and 1404, Revised 
 Statutes; see also section 1488, Revised 
 Statutes, and note thereto; and see sec- 
 tions 1-6, Na\y personnel act, March 3, 
 1899 (30 Stat., 1004-1005). 
 
 The appointment and assignment of line officers 
 for engineering duty only were authorized 
 by acts of February 16, 1914, section 21 (38 
 
 Stat., 283), and August 29, 1916 (39 Stat., 
 580). 
 
 1401 
 
Mar. 3, 1915. PL 3. STATUTES AT LARGE. 
 
 [1915, Mar. 3. Advisory Committee for Aeronautics.] An Advisory Com- 
 mit too for Aoronautics is hereby established, and the President is authorized 
 to appoint not to exceed twelve members, to consist of two members from the 
 War Department, from the office in charge of military aeronautics; two members 
 from the Navy Department, from the office in charge of naval aeronautics; a 
 roprosontative each of the Smithsonian Institution, of the United States Weather 
 Bureau, and of the United States Bureau of Standards; together with not more 
 than five additional persons who shall be acquainted with the needs of aeronau- 
 tical science, either civil or military, or skilled in aeronautical engineering or its 
 allied sciences: Provided, That the members of the Advisory Committee for 
 Aeronautics, as such, shall serve without compensation: Provided further, That 
 it shall be the duty of the Advisory Committee for Aeronautics to supervise 
 and direct the scientific study of the problems of flight, with a view to their 
 practical solution, and to determine the problems w^hich should be experi- 
 mentally attacked, and to discuss their solution and their application to practical 
 questions. In the event of a laboratory or laboratories, either in whole or in 
 part, being placed imder the direction of the committee, the committee may 
 direct and conduct research and experiment in aeronautics in such laboratory 
 or laboratories : And provided further, That rules and regulations for the conduct 
 of the work of the committee shall be formulated by the committee and approved 
 by the President. 
 
 That the sum of $5,000 a year, or so much thereof as may be necessary, 
 for five years is hereby appropriated, out of any money in the Treasury not 
 other^\^se appropriated, to be immediately available, for experimental work 
 and investigations undertaken by the committee, clerical expenses and supplies, 
 and necessary expenses of members of the committee in going to, returning 
 from, and while attending, meetings of the committee: Provided, That an 
 annual report to the Congress shall be submitted through the President, includ- 
 ing an itemized statement of expenditures. — (38 Stat., 930, chap. 83.) 
 
 In the act of March 4, 1917 (39 Stat., 1170), 
 appropriations for this committee were 
 made under the name of the "National 
 Ad\d80iy Committee for Aeronautics," and 
 the said act consolidated the appropriations 
 previously made for the "Advisory Com- 
 
 [1915, Mar. 3. Medals of honor.] The President of the United States is 
 hereby empowered to prepare a suitable medal of honor to be awarded to any 
 officer of the Navy, Marine Corps, or Coast Guard who shall have distinguished 
 himself in battle or displayed extraordinary heroism in the line of his profes- 
 sion.— (38 Stat., 931, chap. 83.) 
 
 See act of February 4, 1919 (40 Stat., 1056); and see section 1407, Revised Statutes, and 
 note thereto. 
 
 [1915, Mar. 3. Enlistment of minors; discharge upon request of parents.] 
 That hereafter no part of any appropriation for the naval service shall be 
 expended in recruiting seamen, ordinary seamen, or apprentice seamen imless, 
 in case of minors, a certificate of birth or a verified written statement by the 
 parents, or either of them, or in case of their death a verified written statement 
 by the legal guardian, be first furnished to the recruiting officer, showing 
 applicant to be of age required by naval regulations, which shall be presented 
 
 1402 
 
 mittee for Aeronautics." Appropriations 
 have continued to be made under the new 
 designation in subsequent acts, to and in- 
 cluding the act of March 4, 1921 (41 Stat., 
 1381). 
 
PL 3. STATUTES AT LARGE. 
 
 Mar. 3, 1915. 
 
 with the application for enHstment; except in cases where such certificate is 
 unobtainable, enhstment may be made when the recruiting officer is convinced 
 that oath of applicant as to age is credible; but when it is afterwards found, 
 upon evidence satisfactory to the Navy Department, that recruit has sworn 
 falsely as to age, and is imder eighteen years of age at the time of enlistment, he 
 shall, upon rec{uest of either parent, or, in case of their death, by the legal 
 guardian, be released from service in the Navy, upon payment of full cost of 
 first outfit, unless, in any given case, the Secretary, in his discretion, shall 
 relieve said recruit of such payment. — (38 Stat., 931, chap. 83.) 
 
 See sections 1418, 1419, and 1624, article 22, 
 Re\Tsed Statutes, and notes thereto. 
 
 See acts of June 29. 1906 (34 Stat., 553), and 
 March 3, 1915 (38 Stat., 932), as to clothing 
 outfits. 
 
 [1915, Mar. 3. Clothing outfits, reissued on second enlistment.] That here- 
 after the Secretary of the Navy is .authorized to issue a clothing outfit to all 
 enlisted men serving in their second enlistment who failed to receive an outfit 
 of the value authorized by law on their first enlistment, or who, having received 
 such outfit, were rec{uired to refund its value on account of discharge prior to 
 expiration of enlistment : Provided further, That the net cost to the Government 
 of clothing outfits furnished any one enlisted man shall not exceed $60. — (38 
 Stat., 932, chap. 83.) 
 
 A similar pro\dsion, without the word "here- 
 after," was contained in act of June 30, 1914 
 (38 Stat., 396). 
 
 A clothing outfit on first enlistment, not to ex- 
 ceed in value |45, was authorized by act of 
 March 1, 1889 (25 Stat., 781). See that act 
 and note thereto. 
 
 The value of clothing outfits on first enlistment 
 has been increased from time to time by 
 annual appropriation acts. The amount 
 fixed by the act of June 4, 1920 (41 Stat., 
 815), was "not to exceed $100 each," dur- 
 
 ing the fiscal year ending June 30, 1921. 
 The latter act further pro\dded that during 
 the said fiscal year the value of such outfits 
 should be charged to the "clothing and 
 small stores fund." See also note to sec- 
 tion 1569, Revised Statutes. 
 
 As to refund of outfits on discharge, see acts of 
 June 29, 1906 (34 Stat., 553 and 556), and 
 March 2. 1907 (34 Stat., 1176). 
 
 As to uniform gratuity in the Naval Reserve 
 Force, see note to section 1556, Revised 
 Statutes. 
 
 [1915, Mar. 3. Involuntary retirement, to create vacancies, repealed.] 
 
 Section nine of the naval personnel act of ]VIarch third, eighteen hundred and 
 
 ninety-nine, entitled, "An act to reorganize and increase the efficiency of the 
 
 personnel of the Navy and Marine Corps of the United States," be, and the 
 
 same is hereby, repealed. — (38 Stat., 938, chap. 83.) 
 
 See act of March 3, 1899, section 9 (30 Stat., 1006); see also act of August 22, 1912 (37 Stat., 
 328). 
 
 [1915, Mar. 3. Aviators, pay of.] Hereafter officers of the Navy and 
 Marine Corps appointed student naval aviators, while lawfully detailed for duty 
 involving actual flying in air craft, including balloons, dirigibles, and aeroplanes, 
 shall receive the pay and allowances of their rank and service plus thirty-five 
 per centum increase thereof; and those officers who have heretofore cjualified, 
 or may hereafter qualify, as naval aviators, under such rules and regulations 
 as have been or may be prescribed by the Secretary of the Navy, shall, while 
 lawfully detailed for duty involving actual flying in air craft, receive the pay 
 and allowances of their rank and service plus fifty per centum increase thereof. 
 Hereafter enlisted men of the Navy or Marine Corps, while detailed for duty 
 involving actual flying in air craft, shall receive the pay, and the permanent 
 additions thereto, including allowances, of their rating and service, or rank and 
 
 54641°— 22- 
 
 -89 
 
 1403 
 
Mar. 3, 1915. 
 
 Pi. A. STA TUTES A T LARGE. 
 
 service, as the case may bo. plus fifty per centum increase thereof: Provided., 
 That not more tlian a yearly average of forty-eight officers and ninety-six 
 enlisted men of the Navy, and twelve officers and twenty-four enlisted men of 
 the Marine Corps, detailed for duty involving actual flying in air craft, shall 
 receive any increase in pay while on duty involving actual flying in air craft, 
 nor shall any oflicor in the Navy senior in rank to commander, nor any officer 
 in the Marino Corps senior in rank to major, receive any increase in pay or allow- 
 ances hj reason of such detail or duty. — (38 Stat., 939, chap. 83.) 
 
 By act of July 1, 1918 (40 Stat., 718), increased 
 allowances for axdation duty -were pro- 
 hibited. 
 
 This pro\'ision was modified bv act of August 
 29, 1916 (39 Stat., 582-586). See note to 
 section 1556, Revised Statutes. It was 
 followed by a paragraph authorizing pay- 
 ment of one year's pay and double pension 
 to the beneficiaries of deceased personnel 
 
 of the Na\'y or Marine Corps whose death 
 resulted from wounds or disease resulting 
 from an aviation accident; which benefits 
 were repealed by the "War Risk insurance 
 amendment of October 6, 1917, section 312 
 (40 Stat., 408). 
 prior proNdsion relating to pay of a^"iato^s, 
 . contained in act of March 4, 1913 (37 Stat., 
 892), was superseded by the above. 
 
 [1915, Mar. 3. Prior acts repealed.] All Acts or parts of Acts in so far as 
 they are inconsistent with the provisions of this Act are hereby repealed.— (38 
 Stat.. 940, chap. 83.) 
 
 [1915, Mar. 3. Naval reserve established.] 
 
 This provision read as follows: 
 "There is hereby established a United States 
 naval reser\'e, which shall consist of citizens of 
 the United States who have been or may be 
 entitled to be honorably discharged from the 
 Na^-y after not less than one four-year term of 
 enlistment or after a term of enlistment during 
 minority. The naval reserve shall be organ- 
 ized under the Bureau of NaA'igation and 
 shall be governed by the Articles for the Gov- 
 ernment of the Na^'y and by the Naval Regu- 
 lations and Instructions. \\Tienever actively 
 employed with the Na\'y, or whenever em- 
 ployed in authorized travel to and fi'om 
 prescribed active duty with the Navy, its 
 members shall be employed as members of 
 the naval reserve and shall while so em- 
 ployed be held and considered to be in all 
 respects in the same status as enlisted men of 
 the Na\y on active duty, except that they shall 
 not be advanced in rating in time of peace. 
 ^^■hen not actively employed with the Navy, 
 members of the naval reserve shall not be 
 entitled to any pay, bounty, gratuity, or 
 pension except the pay expressly pro\'ided 
 for members of the naval reserve by the pro- 
 visions of this Act, nor shall they be entitled 
 to retirement by reason of such service in the 
 naval reserve. 
 
 "Enlistments in the naval reser\-e shall be 
 made in the rating in which last honorably 
 discharged from the Navy for a period of four 
 >-ears unless sooner discharged by competent 
 authority. No man shall be first enlisted in 
 the naval reserve after eight years from the 
 date of his last discharge from the Na\y nor 
 unless he be found to be physically fit to per- 
 form the duties of the rating in which last 
 discharged , nor shall any man whose last sers-ice 
 in the Na\'y was terminated by any means 
 other than by an honorable discharge be eligible 
 
 for enlistment in the naval reserve. Reenlist- 
 ments in the naval resen-e shall be made under 
 such regulations as may be prescribed by the 
 Secretary of the Nav^^ 
 
 "Enlistments in the naval reserve shall be 
 made in two classes. Class one shall consist of 
 those men who enlist in the naval reserve 
 within four months from the date of their last 
 honorable discharge from the Na\y. Class 
 two shall consist of those men who enlist in the 
 naval resen-e after foui* months and within 
 eight years fi-om the date of their last honorable 
 discharge from the Na\y. 
 
 "In addition to the enlistments in the naval 
 reserve above pro\'ided, the Secretary of the 
 NaA'y is authorized to transfer to the naval 
 reserve at the expiration of an enlistment any 
 enlisted man of the Navy who may, after two 
 years from the date of approval of this Act, 
 complete service in the Navy of sixteen, or 
 twenty or more years and be entitled at the 
 expiration of his enlistment to an honorable 
 discharge. Such transfers shall only be made 
 upon voluntary application and in the rating 
 in which then ser-\-ing, and the men so trans- 
 ferred shall be continued in the naval reserve 
 until discharged by competent authority. 
 
 "Members of the naval reserve of class one 
 and men transferred to the na\'al reserve shall 
 be required to keep on hand such part of the 
 uniform clothing outfit as may be prescribed 
 by the Secretaiy of the Navy, and all members 
 of the naval reser\-e shall be issued a distincti^•e 
 .badge or button which may be worn with 
 ci\ilian dress. 
 
 ' 'Members of class one who have served less 
 than eight years in the Na\'y shall be paid at 
 the rate of S30 per annum, and those who have 
 served eight or more years and less than twelve 
 years in the Navy shall be paid at the rate of $60 
 per annum and those who have served twelve 
 
 1404 
 
Ft. 3. STATUTES AT LARGE. 
 
 Mar. 3, 1915. 
 
 or more years in the Navy, $100 per annum. 
 All members of the naval reserve of class two 
 shall be paid at the rate of $12 per annum, and 
 when first called into active service on board 
 a vessel of the Navy shall receive an allowance 
 for an outfit of clothing not exceeding $30 in 
 value, to be expended under regulations 
 prescribed by the Secretary of the Navy. 
 
 "Members of the naval reserve who have, 
 when transferred to the naval reserve, com- 
 pleted service in the Navy of sixteen, or twenty 
 or more years shall be paid at the rate of one- 
 third and one-half, respectively, of the base pay, 
 plus permanent additions thereto, which they 
 were receiving at the close of their last service 
 in the Navy. 
 
 "Members of the naval reserve may, in time 
 of peace, be required to perform not less than 
 one month's active service on board a vessel 
 of the Navy, during each year of service in the 
 naval reserve, and such active service shall 
 not exceed two months in any one year: Pro- 
 vided, That the aforesaid active ser\dce with 
 the Navy may be required at any time after 
 entrance in the naval reserve. In time of war 
 they may be required to perform active service 
 with the Navy throughout the war, not to exceed 
 the term of enlistment in the case of those 
 enlisted in the naval reserve. Any pay which 
 may be due any member of the naval reserve 
 shall be forfeited when so ordered by the 
 Secretary of the Navy upon the failure, under 
 such conditions as may be prescribed by the 
 Secretary of the Navy, of such man to report 
 for muster and inspection. 
 
 "Those members of the naval reserve of class 
 one, and those members who have been trans- 
 ferred to the naval reserve, who reenlist in the 
 Navy within four months from the date of their 
 discharge from the naval reserve, shall not be 
 entitled to a gi'atuity of four months' pay, but 
 their reenlistment in the Navy shall be held 
 and considered to have been made within four 
 months from the date of discharge from the 
 Navy for the purpose of continuous-service 
 pay. The period of time during which mem- 
 bers of the naval reserve were actively em- 
 ployed with the Navy wliile enlisted in the 
 naval reserve shall, for the pui'poses of retire- 
 ment, be counted as active service in the Navy 
 in the case of those who reenlist in the Navy 
 after service in the naval reserve." (38 Stat., 
 940-941, chap. 83.) 
 
 This provision was held to be super- 
 seded by the act of August 29, 1916 (39 Stat., 
 587-593), establishing the Naval Reserve 
 Force and Marine Corps Reserve (23 Comp. 
 Dec, 190, affirmed, 26 Comp. Dec, 556). 
 
 In the comptroller's decision first above 
 cited, it was held that "the former Naval Re- 
 serve having been superseded on August 29, 
 1916, by the Naval Reserve Force," the right 
 
 [1915, Mar. 3. Retired enlisted men, active duty.] The Secretary of the Navy 
 is authorized in time of war, or when, in the opinion of the President, war is 
 threatened, to call any enlisted man on the retired list into active service for 
 such duty as he may he able to perform. While so employed such enlisted 
 men shall receive the same pay and allowances they were receiving when placed 
 on the retired list: Provided, That enlisted men on the retired list shall not be 
 
 to pay of members of the Naval Reserve "ter- 
 minated August 28, 1916.'; 
 
 In the second decision cited, the comptroller 
 held that "upon the passage of the act of 
 August 29, 1916, 39 Stat., 587, the United 
 States Naval Reserve ceased to exist and a 
 new branch, the Naval Reserve Force, was 
 created in place thereof." 
 
 The act of August 29, 1916 (39 Stat., 593), 
 provided that "All Acts or parts of Acts relating 
 to the Naval Reserve which are inconsistent 
 v'ith the provisions of this Act relating to the 
 Naval Reserve Force are hereby repealed." 
 
 After the comptroller's decision first above 
 cited, Congi-ess, by act of March 4, 1917 (39 
 Stat., 1174), enacted the following provision: 
 i "Any former member of class one of the 
 United States Naval Reserve, established by 
 the Act of March third, nineteen hundred and 
 fifteen, 'An Act making appropriations for the 
 naval service for the fiscal year ending June 
 thirtieth, nineteen hundred and sixteen, and 
 for other purposes,' who shall have reenlisted 
 in the Navy prior to May first, nineteen hun- 
 dred and seventeen, shall be held and consid- 
 ' ered to have reenlisted within four months 
 I from the date of discharge fi'om the Navy for 
 the purpose of continuous-service pay. And 
 any such member of the said Naval Reserve 
 who was serving therein on August twenty- 
 I ninth, nineteen hundred and sixteen, shall 
 j upon his application therefor, any time prior to 
 July firstj nineteen hundred and seventeen, be 
 enrolled m the Naval Reserve Force, and any 
 such person so enrolled shall, for all purposes, 
 be considered as having served continuously 
 in such Naval Reserve Force since August 
 twenty-ninth, nineteen hundred and sixteen, 
 with due credit for previous and continuous 
 service in the Naval Reserve in the same 
 manner and to the same effect as for equal 
 length of service in the Naval Reserve Force: 
 Provided, That no such enrolled person shall 
 receive any back pay or allowances for any 
 period during which he shall have received 
 pay or allowances, or either, for service in any 
 other branch of the naval service, regular or 
 reserve." 
 
 See note to section 1573, Revised Statutes, 
 as to continuous-service pay in the Navy; see 
 note to section 1556, Revised Statutes, as to 
 pay and allowances of the Naval Reserve 
 Force; and see, generally, note to section 1569, 
 Revised Statutes, as to pay of enlisted men of 
 the Navy, and note to section 1612, Revised 
 Statutes, as to pay of enlisted men of the 
 Marine Corps. 
 
 See act of August 29, 1916 (39 Stat., 587-593), 
 and amendments noted thereunder, as to the 
 Naval Reserve Force and Marine Corps Re- 
 serve. 
 
 1405 
 
Mar. 3, 1915. 
 
 Pt. S. STATUTES AT LARGE. 
 
 eligible for enlistment in or tnmsfer to the naval reserve. — (38 Stat., 941, chap. 
 S3.) 
 
 A later provision for the emplo>nment of retired 
 enlisted inon on active cluty, -which appar- 
 ently supcM-setles this enactment, is con- 
 tained in the act of August 29, 1916 (39 
 Stat., 501). 
 
 Authority for the advancement of retired en- 
 listed men employed on active duty is 
 contained in the act of July 1, 1918 (40 
 Stat., 719). 
 
 As to status of retired enlisted men, and 
 whether subject to trial by court-martial, 
 see note to section 1624, Revised Statutes. 
 
 See notes above, as to the naval reserve; and 
 see act of March 3, 1899, section 17 (30 
 Stat., 1008), and laws noted thereunder, 
 as to retirement of enlisted men. 
 
 See note to section 1569, Revised Statutes, 
 under "17. Retired enlisted men;" and 
 see note to section 1622, Rexdsed Statutes, 
 as to retired enlisted men of the Marine 
 Corps. 
 
 [1916, Mar. 3. Grades of acting pay clerk, pay clerk, and chief pay clerk, 
 established.] The title of paymaster's clerk in the United States Navy is 
 hereby changed to pay clerk, and hereafter all pay clerks shall be warranted 
 from acting pay clerks, who shall be appointed from enlisted men in the Navy 
 holding acting or permanent appointments as chief petty ofTicers who have 
 served at least three years as enlisted men, at least two years of which service 
 must have been on board a cruising vessel of the Navy. All appointments 
 as acting pay clerks shall be made by the Secretary of the Navy, and all such 
 appointees, in addition to the qualifications above set forth, must be citizens 
 of the United States. All acting appointments herein provided for shall be made 
 permanent under regulations established by the Secretary of the Navy: Pro- 
 vided, That paymasters' clerks now in the Navy whose total service as such 
 is less than one year and who are citizens of the United States may, upon the 
 passage of this act, be given appointments as acting pay clerks without previous 
 service as enlisted men: Provided further, That paymasters' clerks now in 
 the service and former paymasters' clerks whose appointments have been 
 revoked within six months next preceding the passage of this act, who have 
 had not less than one year's actual service as such, and who are citizens of the 
 United States, may, upon the passage of this act, be warranted as pay clerks 
 without previous service as enlisted men or as acting pay clerks: And provided 
 further, That pay clerks and acting pay clerks shall have the same pay, allow- 
 ances, and other benefits as are now or may hereafter be allowed other warrant 
 ofTicers and acting warrant officers, respectively. 
 
 That all pay clerks shall, after six years' service as such, be commissioned 
 chief pay clerks and shall on promotion have the rank, pay, and allowances 
 of chief boatswain: Provided, That in computing the six years' service herein 
 provided for credit shall be given for all service in the Navy as pay clerk, 
 acting pay clerk, and paymasters' clerk: Provided further. That paymiasters' 
 clerks now in the Navy and former paymasters' clerks whose appointments 
 have been revoked within six months next preceding the passage of this act, 
 who have had not less than six years' actual service as such, and who are 
 citizens of the United States, may, upon the passage of this act, be commissioned 
 as chief pay clerks without previous service as enlisted men, acting pay clerks, 
 or pay clerks. 
 
 That the total number of chief pay clerks, pay clerks, and acting pay 
 clerks allowed by this act shall not exceed one for each two hundred and fifty 
 enlisted men in the United States Navy now or hereafter allowed by law, and 
 
 1406 
 
PL 3. STATUTES AT LARGE. 
 
 Mar. 3, 1915. 
 
 such chief pay clerks, pay clerks, and acting pay clerks shall be assigned to 
 duty with pay officers under such rules as the Secretary of the Navy may 
 prescribe: Privided, That no person shall be appointed a chief pay clerk, pay 
 clerk, or acting pay clerk under any provisions contained in this act until his 
 physical, mental, moral, and professional qualifications have been satisfactorily 
 established by examination before a board of examining officers appointed by 
 the Secretary of the Navy, from officers of the pa}^ corps when practicable 
 and according to such regulations as he may prescribe: Provided further, 
 That no person shall be appointed a chief pay clerk, pay clerk, or acting pay 
 clerk unless his accumulated previous service in the Army, Navy, and Marine 
 Corps, together with his possible future service prior to attaining the age of 
 sixty-two years, will amount to at least thirty years, except that this proviso 
 shall not apply to such persons as were serving in the Navy as paymasters' 
 clerks during the period from September first, nineteen hundred and thirteen, 
 to October thirty-first, nineteen hundred and thirteen. — (38 Stat., 942-943, 
 chap. 83.) 
 
 As to pay of warrant officers and commissioned 
 warrant officers, see note to section 1556, 
 ile^dsed Statutes; as to allowances of offi- 
 cers, see note to section 1558, Revised Stat- 
 
 utes. See, generally, sections 1386-1388, 
 and 1405, fee\'ised Statutes, and notes 
 thereto. 
 
 [1915, Mar. 3. Assistant paymasters, appointment from chief pay clerks 
 and pay clerks.] That the limitation as to age contained in section thirteen 
 hundred and seventy-nine of the Revised Statutes of the United States, relating 
 to appointment of assistant paymasters in the United States Navy, shall not 
 apply to chief pay clerks and pay clerks appointed under the provisions of this 
 Act, who must be between the ages of twenty-one and thirty-five years at the 
 time of appointment as assistant paymasters in the United States Navy: Pro- 
 vided, That this shall not be construed as giving any preference in said appoint- 
 ment of assistant paymasters to said chief pay clerks and pay clerks except as 
 to the limitation of age. — (38 Stat., 943, chap. 83.) 
 
 See section 1379, Re\ised Statutes, and note thereto. 
 
 [1915, Mar. 3. Paymasters' clerks ; laws repealed.] That sections thirteen 
 hundred and eighty-six, thirteen hundred and eighty-seven, and thirteen 
 hundred and eighty-eight of the Revised Statutes, and all Acts and parts of 
 Acts, so far as they are in conflict with the provisions of this Act, be, and the 
 same are hereby, repealed. — (38 Stat., 943. chap. 83.) 
 
 [1915, Mar. 3. Transportation of fuel; charges excessive.] That hereafter, 
 when the lowest obtainable cost of transportation of fuel between the Atlantic 
 and Pacffic coasts of the United States by merchant carriers is considered ex- 
 cessive, the appropriation "Fuel and transportation"' may be charged with the 
 expense of pay, transportation, shipping, and subsistence of civilian officers 
 and crews, and such other incidental expenses as can not be paid from other 
 appropriations, of naval auxiliaries engaged in the transportation of fuel: 
 Provided, That the appropriation ''Maintenance of naval auxiliaries" is in- 
 sufficient therefor. — (38 Stat., 944, chap. 83.) 
 
 1407 
 
Mar. 4. 1915. 
 
 Pt.3. STATUTES AT LARGE. 
 
 See sections 3718 and 3728, Revised Statutes, 
 and notoa Ihoroto. 
 Transportation in foreign vessels. — 
 Coal for the use of the Navy may, under ex- 
 isting: law. 1)0 transported hy soa from ports on 
 tho Atlantic to ports on the Tacific coast of the 
 I'nitod States in vessels of foreign registry 
 ■where suflicient American vessels for that pur- 
 
 {>ose can not be had, or where the charges made 
 )V such vessels are excessive and unreasonable. 
 (26 ()]). Attv. Gen.. 415, Oct. 3, 1917.) 
 
 The act of April 2S, 1904 (33 Stat., 518), 
 relating to transportation of coal and other sup- 
 plies for the Navy, contemplates the possibility 
 that it may be impossible to comply with its 
 terms ^\-ithout exposing the Government to 
 exorbitant and unreasonable expense; in such 
 case the act does not require that transporta- 
 tion be in American vessels. (26 Op. Atty. 
 Gen.. 415.) 
 
 Section 4347, Revised Statutes, and the act 
 of February 17, 1898 (30 Stat., 248), which 
 
 [1915, Mar. 3. Assistant naval constructors, appointment from line offi- 
 cers.] Officers, of the line of the Navy who have had not less than three years' 
 service in the grade of ensign and have taken or are taking satisfactorily a 
 post-graduate course in naval architecture under orders from the Secretar}^ (^f 
 the Navy shall be eligible for transfer to the grade of assistant naval constructor: 
 Provided, That there shall not be more than five such transfers in any one 
 calendar year and that the total increase in the number of naval constructors 
 and assistant naval constructors by reason of such transfers shall not exceed 
 twenty-four.— (38 Stat., 945, chap. 83.) 
 
 prohibit the transportation of merchandise 
 from one port to another in vessels owned by 
 foreigners, do not apply t© property owned by 
 the Government. (26 Op. Atty. Gen., 415.) 
 
 Tonnage tax. — A British steamship which 
 transported coal belonging to the Navy, from 
 Newport News to San Francisco, and had no 
 other cargo, was not a vessel having on board 
 goods, wares, and merchandise within the 
 meaning of section 4219, Revised Statutes, and 
 amendments tliereto, imposing a tonnage tax 
 upon foreign vessels. (2i) Op. Atty. Gen., 426.) 
 
 Coal imported for the Navy; duties. — • 
 Coal imported for the use of the NaA^^ is subject 
 to the duties prescribed bv paragraph 415 of 
 the act of July 24, 1897 (30 Stat., 190), not^nth- 
 standing the coal is imported by the Na-vy De- 
 partment and the duties wdll have to be paid 
 from the aj^propriations of that Department 
 (26 Op. Atty. Gen., 466.) 
 
 See section 1403, Revised Statutes, and note 
 thereto, as to appointment of assistant 
 naval constructors. 
 
 See section 1402, Re\dsed Statutes, and note 
 thereto, as to the number of officers in the 
 Construction Corps. 
 
 [1915, Mar. 3. Pay, Marine Corps, sea duty.] That the increased compen- 
 sation as now fixed by law for the Marine Corps for foreign shore service shall 
 hereafter be paid to the officers and enlisted men of that corps while on sea duty, 
 in the same manner and under the same conditions as is provided by the act 
 approved M.aj thirteenth, nineteen hundred and eight, for officers of the Navy. — 
 (38 Stat., 948, chap. 83.) 
 
 See act of May 13, 1908 (35 Stat., 128), and see notes to sections 1556, 1571, and 1612, Re- 
 vised Statutes. 
 
 [1916, Mar. 3. Equipment outfits, naval vessels; appropriation chargeable.] 
 Increase of the Navy, Equipment: The unexpended balance on June thir- 
 tieth, nineteen hundred and fifteen, shall be transferred to appropriation 
 "Increase of the Navy, construction and machinery," and beginning with July 
 first, nineteen hundred and fifteen, equipment outfits shall be charged to ap- 
 propriation "Increase of the Navy, construction and machinery." — (38 Stat., 
 952, chap. 83.) 
 
 [1915, Mar. 4, sec. 5. Subscriptions to periodicals, payment in advance.] 
 That hereafter subscriptions to periodicals, which have been certified in writing 
 by the respective heads of the executive departments or other Government 
 
 1408 
 
Pt. 3. STATUTES AT LARGE. Mar. 4, 1915. 
 
 establisliments to be roqiiired for official use, may be paid in advance from 
 appropriations available therefor. — (38 Stat., 1049, chap. 141.) 
 
 See act of March 3, 1915 (38 Stat., 929); see also section 192, Re\i8ed Statutes, and note 
 thereto. 
 
 [1915, Mar. 4, sec. 6. Civil employees, etc., number of.] The officers and 
 employees of the United States whose salaries are herein appropriated for are 
 established and shall continue from year to year to the extent they shall be 
 appropriated for by Congress.— (38 Stat., 1049, chap. 141.) 
 
 See note to section 416, Re\'ised Stattites. 
 This section was part of the legislative, execu- 
 
 tive, and judicial appropriation act for the 
 fiscal vear 1916. 
 
 [1915, Mar. 4. Transfer of appropriations between bureaus and departments; 
 supplies and services.] That hereafter when one bureau of the War or Navy 
 Departments procures by purchase or manufacture stores or material of any 
 kind or performs any service for another bureau of such departments the 
 funds of the bureau or department for which the stores or material are to be 
 procured or the service performed may be placed subject to the requisition of 
 the bureau or department making the procurement or performing the service 
 for direct expenditure by it: Provided, That when the stores being procured 
 are for current issue during the year stores of equal value may be issued from 
 stock on hand in place of any of those aforesaid. — (38 Stat., 1084, chap. 143.) 
 
 See act of May 21, 1920, section 7 (41 Stat., 
 613), which contains pro^'isions similar to 
 the foregoing, applicable to all depart- 
 ments and bureaus of the Government ; see 
 
 also acts of August 24, 1912 (37 Stat., 589), 
 and July 11, 1919 (41 Stat., 132); and see 
 sections 418, 419, 1135, 1437, and 3676, 
 Re\-ised Statutes, and notes thereto. 
 
 [1915, Mar. 4. National forests; use of earth, stone, and timber by Navy.] 
 That hereafter the Secretary of Agricultiu"e, under regulations to be prescribed 
 by him, is hereby authorized to permit the Navy Department to take from 
 the national forests such earth, stone, and timber for the use of the Navy as 
 may be compatible with the administration of the national forests for the 
 purposes for which they are established, and also in the same manner to permit 
 the taking of earth, stone, and timber from the national forests for the con- 
 struction of Government railways and other Government works in Alaska: 
 Provided, That the Secretary of Agriculture shall submit with his annual 
 estimates a report of the quantity and market value of earth, stone, and timber 
 furnished as herein provided.— (38 Stat., 1100-1101, chap. 144.) 
 
 [1915, Mar. 4, sec. 4. Appropriations, unexpended balances; reappropria- 
 tion.] That the reappropriation and diversion of the unexpended balance of 
 any appropriation to a purpose other than that for which it was originally 
 made shall be construed and accounted hereafter as a new appropriation and 
 the imexpended balance shall be reduced by the sum proposed to be so 
 diverted.— (38 Stat., 1161, chap. 147.) 
 
 See section 3690, Re\T.sed Statutes. 
 
 [1915, Mar. 4, sec. 5. Exchange of typewriters, adding machines, etc.; 
 report to Congress.] That the executive departments and other Government 
 establishments and all branches of the public service may hereafter exchange 
 typewriters, adding machines, and other similar labor saving devices in part 
 payment for new machines used for the same purpose as those proposed to be 
 
 1409 
 
Apr. 27, 1916. Pt. 3. STATUTES AT LARGE. 
 
 exchanged. There shall be submitted to Congress, on the first day of the 
 session following the close of each fiscal year, a report showing, as to each ex- 
 change hereunder, the make of the article, the period of its use, the allowance 
 therefor, and the article, make thereof, and price, including exchange value, 
 paid or to be paid for each article procured through such exchange. — (38 Stat., 
 1161, chap. 147.) 
 
 See sections 418, 429, and 3718, ReA-ised Stat- 
 utes, and notes thereto; and see acts of 
 
 June 5, 1020, section 7 (41 Stat., 947), and 
 March ■^, 1921 (41 Stat., 1265-126G). 
 
 [1916, Apr. 27. Medal of honor roll ; special pension.] That there is hereby 
 established in the War Department and Navy Department, respectively, a roll 
 designated as "the Army and Navy medal of honor roll." Upon written 
 application made to the Secretary of the proper department, and subject to 
 the conditions and requirements hereinafter contained, the name of each sur- 
 viving person who has served in the military or naval service of the United 
 States in any war, who has attained or shall attain the age of sixty-five years, 
 and who has been awarded a medal of honor for having in action involving 
 actual conflict with an enemy distinguished himself conspicuously by gallantry 
 or intrepidity, at the risk of his life, above and beyond the call of duty, and 
 who was honorably discharged from service by muster out, resignation, or 
 otherwise, shall be, by the Secretary of the proper department, entered and 
 recorded on said roll. Applications for entry on said roll shall be made in such 
 form and under such regulations as shall be prescribed by the War Department 
 and Navy Department, respectively, and proper blanks and instructions shall 
 be, by the proper Secretary, furnished without charge upon request made by 
 any person claiming the benefits of this Act. — (39 Stat., 53, chap. 88.) 
 
 Sec. 2. That it shall be the duty of the Secretary of War and of the Sec- 
 retary of the Navy to carry this Act into effect and to decide whether each 
 applicant, under this Act, in his department is entitled to the benefit of this 
 Act. If the official award of the medal of honor to the applicant, or the official 
 notice to him thereof, shall appear to show that the medal of honor was awarded 
 to the applicant for such an act as is required by the provisions of this Act, it 
 shall be deemed sufficient to entitle the applicant to such special pension with- 
 out fm-ther investigation. Otherwise all official correspondence, orders, reports, 
 recommendations, requests, and other evidence now on file in any public office 
 or department shall be considered. A certificate of service and of the act of 
 heroism, gallantry, bravery, or intrepidity for which the medal of honor was 
 awarded, and of enrollment under this Act, and of the right of the special 
 pensioner to be entitled to and to receive the special pension herein granted, 
 shall be furnished each person whose name shall be so entered on said roll. The 
 Secretary of War and the Secretary of the Navy shall deliver to the Commissioner 
 of Pensions a certified copy of each of such of said certificates as he may issue, 
 as aforesaid, and the same shall be full and sufficient authority to the Commis- 
 sioner of Pensions for the payment by him to the beneficiary named in each 
 such certificate the special pension herein provided for. — (39 Stat., 54, chap. 88.) 
 Sec. 3. That each such surviving person whose name shall have been 
 entered on said roll in accordance with this Act shall be entitled to and shall 
 receive and be paid by the Commissioner of Pensions in the Department of the 
 
 1410 
 
Ft. 3. STATUTES AT LARGE. June 3, 1916 
 
 Interior, out of any moneys in the Treasury of the United States not otherwise 
 appropriated, a special pension of $10 per month for life, payable quarter 
 yearly. The Commissioner of Pensions shall make all necessary rules and 
 regulations for making payment of such special pensions to the beneficiaries 
 thereof. 
 
 Such special pension shall begin on the day that such person shall file his 
 application for enrollment on said roll in the office of the Secretary of War or of 
 the Secretary of the Navy after the passage and approval of this Act, and shall 
 continue during the life of the beneficiary. 
 
 Such special pension shall not deprive any such special pensioner of any 
 other pension or of any benefit, right, or privilege to which he is or may here- 
 after be -entitled under any existing or subsequent law, but shall be in addition 
 thereto. 
 
 The special pension allowed under this Act shall not be subject to any 
 attachment, execution, levy, tax, lien, or detention imder any process what- 
 ever. — (39 Stat., 54, chap. 88.) 
 
 Sec. 4. That in case any person has been awarded two or more medals of 
 honor, he shall not be entitled to and shall not receive more than one such 
 special pension. 
 
 Rank in the service shall not be considered in applications filed hereunder. — 
 (39 Stat., 54, chap. 88.) 
 
 As to medals of honor, see note to section 1407, Revised Statutes. 
 
 [1916, Apr. 27. Attorneys before departments; advertising.] That it shall 
 be unla\\^ul for any person, firm, or corporation practicing before any depart- 
 ment or office of the Government to use the name of any Member of either 
 House of Congress or of any officer of the Government in advertising the said 
 business. — (39 Stat., 54, chap. 89.) 
 
 [1916, May 10, sec. 6. Double salaries restricted.] That unless othermse 
 specially authorized by law, no money appropriated by this or any other Act 
 shall be available for payment to any person receiving more than one salary 
 when the combined amount of said salaries exceeds the sum of $2,000 per 
 annum, but this shall not apply to retired officers or enlisted men of the Army, 
 Navy, Marine Corps, or Coast Guard, or to officers and enlisted men of the 
 Organized Militia and Naval Militia in the several States, Territories, and the 
 District of Columbia: Provided, That no such retired officer, officer, or enlisted 
 man shall be denied or deprived of any of his pay, salary, or compensation as 
 such, or of any other salary or compensation for services heretofore rendered, 
 by reason of any decision or construction of said section six. — (39 Stat., 120, 
 chap. 117; 39 Stat., 582, chap. 417.) 
 
 See notes to sections 1763 and 1765, Revised 
 Statutes. 
 
 This section was expressly amended and reen- 
 acted to read as above by act of August 29, 
 1916 (39 Stat., 582). 
 
 [1916, June 3, sec. 35. Enlisted men, civil employment.] Hereafter no 
 enlisted man in the active service of the United States in the Army, Navy, and 
 Marine Corps, respectively, whether a noncommissioned officer, musician, or 
 private, shall be detailed, ordered, or permitted to leave his post to engage in 
 any pursuit, business, or performance in civil life, for emolument, hii'e, or 
 
 1411 
 
June 3, 1916. 
 
 PL S. STATUTES AT LARGE. 
 
 Employment of enlisted men at navy yards, 
 etc., during repairs to vessels: See act of 
 August 22, 1912 (37 Stat., 355). 
 
 othcnviso, a\ lion the same shall interfere with the customary employment and 
 regular engagement of local civilians in the respective arts, trades, or profes- 
 sions.— (39 Stat., 188-189, chap. 134.) 
 
 Navy bands, competition with civilians: See 
 
 act of May 13, 1908 (35 Stat., 153.) 
 Marine Band, competition with civilians: See 
 
 act of August 29, 191G (39. Stat., 612). 
 
 [1916, June 3, sec. 74. National Guard officers, appointed from naval and 
 reserve officers, etc.] Persons hereafter commissioned as officers of the National 
 Guard shall not be recognized as such under any of the provisions of this Act 
 unless they shall have been selected from the following classes, and shall have 
 taken and subscribed to the oath of office prescribed in the preceding section 
 of this Act; officers or enlisted men of the National Guard; officers, active or 
 retired, reserve officers, and former officers of the Ai'my, Navy, or Marine 
 Corps, enlisted men and former enlisted men of the Army, Navy, or Marine 
 Corps who have received an honorable discharge therefrom; graduates of the 
 United States Military and Naval Academies; and graduates of schools, col- 
 leges, universities, and officers' framing camps, where they have received 
 military instruction under the supervision of an officer of the Regular Army 
 who certified their fitness for appomtment as commissioned officers; and for 
 the technical branches or Staff Corps and departments, such other civilians as 
 may be specially qualified for duty therein. — (39 Stat., 201-202, chap. 134, 
 41 Stat., 781-782, chap. 227.) 
 
 This section was expressly amended and reenacted to read as above by act of June 4, 1920, 
 section 41 {41 Stat., 781-782). 
 
 [1916, June 3, sec. 80. Leave of absence employees belonging to National 
 Guard.] All officers and employees of the United States and of the District of 
 Columbia who shall be members of the National Guard shall be entitled to 
 leave of absence from their respective duties, without loss of pay, time, or 
 efficiency rating, on all days durmg which they shall be engaged in field or 
 coast-defense framing ordered or authorized under the provisions of this Act. — 
 (39 Stat., 203, chap. 134.) 
 
 See act of May 12, 1917 (40 Stat., 72), as to employees belonging to Officers' Reserve Corps. 
 
 [1916, June 3, sec. 113. Rifle practice.] The Secretary of War shall 
 annually submit to Congress recommendations and estimates for the establish- 
 ment and maintenance of indoor and outdoor rifle ranges, under such a com- 
 prehensive plan as will ultimately result in providing adequate facilities for 
 rifle practice in all sections of the country. And that all ranges so established 
 and all ranges which may have already been constructed, in whole or in part, 
 with funds provided by Congress shall be open for use by those in any branch 
 of the military or naval service of the United States and by all able-bodied 
 males capable of bearing arms, under reasonable regulations to be prescribed 
 by the controlling authorities and approved by the Secretary of War. That 
 the President may detail capable officers and noncommissioned officers of the 
 Regular Army and National Guard to duty at such ranges as instructors for the 
 purpose of training the citizenry in the use of the military arm. Where rifle 
 ranges shall have been so established and instructors assigned to duty thereat. 
 
 1412 
 
Pt. 3. STATUTES AT LARGE. 
 
 June 3, 1916. 
 
 the Secretary of War shall be authorized to provide for the issue of a reasonable 
 number of standard military rifles and such quantities of ammunition as may 
 be available for use in conducting such rifle practice. — (39 Stat., 211, chap. 134.) 
 
 By annual appropriation acts for the support of 
 the Army appropriations are made "for the 
 purpose of furnishing a national trophy 
 and medals and other prizes to be provided 
 and contested for annually, under such 
 regulations as may be prescribed by the 
 Secretary of War, said contest to be open 
 to the Army, Navy, Marine Corps, and the 
 National Giuard or Organized Militia of the 
 several States, Territories, and of the Dis- 
 trict of Columbia, members of rifle clubs, 
 
 and civilians, and for the cost of the trophy, 
 prizes, and medals herein provided for, 
 and for the promotion of rifle practice 
 thi'oughout the United States, including 
 the reimbiu-sement of necessaiy expenses 
 of members of the National Board for the 
 promotion of Rifle Practice, to be expended 
 for the purposes hereinbefore prescribed, 
 under the direction of the Secretary of 
 War." (Act June 5, 1920, 41 Stat., 971.) 
 
 [1916, June 3, sec. 120. Procurement of supplies in time of war, etc.] The 
 President, in time of war or when war is imminent, is empowered, through the 
 head of any department of the Government, in addition to the present author- 
 ized methods of purchase or procurement, to place an order with any individual, 
 firm, association, company, corporation, or organized manufacturing industry 
 for such product or material as may be required and which is of the nature and 
 kind usually produced or capable of being produced by such individual, firm, 
 company, association, corporation, or organized manufacturing industry. 
 
 Compliance with all such orders for products or material shall be obligatory 
 on any individual, firm, association, company, corporation, or organized manu- 
 facturing industry or the responsible head or heads thereof and shall take 
 precedence over all other orders and contracts theretofore placed with such 
 individual, firm, company, association, corporation, or organized manufacturing 
 industry, * * * and any individual, firm, company, association, or corpo- 
 ration, or organized manufacturing industry, or the responsible head or heads 
 thereof, failing to comply with the provisions of this section shall be deemed 
 guilty of a felony, and upon conviction shall be punished by imprisonment for 
 not more than three years and by a fine not exceeding $50,000. 
 
 The compensation to be paid to any individual, firm, company, association, 
 corporation, or organized manufacturing industry for its products or material, 
 or as rental for use of any manufacturing plant while used by the United States, 
 shall be fau- and just.— (39 Stat., 213, chap. 134.) 
 
 The omitted portion of this section related in the procurement by the President of ships 
 
 terms to the Arm V. and material, etc., for the Navy in time 
 
 See act of March 4, 1917 (39 Stat., 1192-1193), of war; and see act of September 7, 1916, 
 
 which contained authority 'in addition section 10 (39 Stat., 731). 
 to all other existing provisions of law," for 
 
 [1916, June 3, sec. 124. Nitrate supply.] The products of such plants 
 shall be used by the President for military and naval purposes to the extent 
 that he may deem necessary, and any surplus which he shall determine is not 
 required shall be sold and disposed of by him under such regulations as he may 
 prescribe.— (39 Stat., 215, chap. 134.) 
 
 This was a paragraph contained in section 124 
 of the act cited, which section authorized 
 the President to construct, maintain, and 
 operate plants and equipment for the pro- 
 duction of nitrates or other products needed 
 for munitions of war, etc. 
 
 See act of July 2, 1917 (40 Stat., 241), as 
 amended by acts of April 11, 1918 (40 Stat., 
 618), and July 9, 1918 (40 Stat., 888). 
 
 1413 
 
June 3, 1916. Pt. 3. STATUTES AT LARGE. 
 
 [1916, June 3, sec. 125. Protection of the uniform.] It shall be unlawful for 
 any person not an odieer or cnlistetl man of the United States Army, Navy, 
 or Marine Corps, to wear the duly prescribed uniform of the United States Army, 
 Navy, or Marine Corps, or any distmctivc part of such uniform, or a uniform 
 any part of which is similar to a distinctive part of the duly prescribed uniform 
 of the United States Army, Navy, or Marhie Corps: Provided, That the foregoing 
 provision shall not be construed so as to prevent officers or enlisted men of the 
 National Guard from wearing, m pursuance of law and regulations, the uniform 
 la\\'fiilly prescribed to be worn by such ofTicers or enlisted men of the National 
 Guard; nor to prevent members of the organization known as the Boy Scouts of 
 America, or the Naval Militia, or such other organizations as the Secretary of 
 War may designate, from wearmg their prescribed uniforms; nor to prevent per- 
 sons who in time of war have served honorably as officers of the United States 
 Ai'my, Navy, or Marme Corps, Regular or Volunteer, and whose most recent 
 service was termmated by an honorable discharge, muster out, or resignation, 
 from wearing, upon occasions of ceremony, the uniform of the highest grade 
 they have held by brevet or other commission in such Regular or Volunteer 
 service; nor to prevent any person who has been honorably discharged from the 
 United States Army, Navy, or Marme Corps, Regular or Volunteer, from wear- 
 mg his uniform from the place of his discharge to his home, within three months 
 after the date of such discharge; nor to prevent the members of military societies 
 composed entirely of honorably discharged officers or enlisted men, or both, 
 of the United States Army, Navy, or Marine Corps, Regular or Volunteer, from 
 wearing, upon occasions of ceremony, the uniform duly prescribed by such socie- 
 ties to be worn by the members thereof; nor to prevent the instructors and 
 members of the duly organized cadet corps of a State university. State college, 
 or public high school offering a regular course in military instruction from 
 wearmg the uniform duly prescribed by the authorities of such university, 
 college, or public high school for wear by the mstructors and members of such 
 cadet corps; nor to prevent the instructors and members of the duly organized 
 cadet corps of any other institution of learning offermg a regular course in 
 military instruction, and at which an officer or enlisted man of the United 
 States Army, Navy, or Marine Corps is lawfully detailed for duty as instructor 
 in military science and tactics, from wearing the uniform duly prescribed by 
 the authorities of such institution of learnmg for wear by the instructors and 
 members of such cadet corps; nor to prevent civilians attendant upon a course 
 of military or naval mstruction authorized and conducted by the military or 
 naval authorities of the United States from wearmg, while in attendance upon 
 such course of instruction, the uniform authorized and prescribed by such 
 military or naval authorities for wear during such course of instruction ; nor to 
 prevent any person from wearing the uniform of the United States Army, Navy, 
 or ^Marine Corps in any playhouse or theater or in moving-picture films while 
 actually engaged in representing therein a military or naval character not 
 tending to bring discredit or reproach upon the United States Army, Navy, 
 or Marme Corps: Provided further, That the uniforms worn by officers or 
 enlisted men of the National Guard, or by the members of the military societies 
 or the instructors and members of the cadet corps referred to in the precedmg 
 proviso shall include some distinctive mark or msignia to be prescribed by the 
 
 1414 
 
Pt. 3. STATUTES AT LARGE. 
 
 June 3, 1916. 
 
 Secretary of War to distinguish such uniforms from the uniforms of the United 
 States Army, Navy, and Marme Corps: And 'provided further, That the members 
 of the miUtary societies and the instructors and members of the cadet corps 
 hereinbefore mentioned shall not wear the insignia of rank prescribed to be 
 worn by officers of the United States Army, Navy, or Marine Corps, or any 
 msignia of rank similar thereto. 
 
 Any person who offends against the provisions of this section shall, on 
 conviction, be punished by a fine not exceeding $300, or by imprisonment not 
 exceeding six months, or by both such fine and imprisomnent. — (39 Stat., 
 216-217, chap. 134; 41 Stat., 836, chap. 228.) 
 
 This section was expressly amended by act of 
 
 July 9, 1918, section 10 (40 Stat., 891), by 
 
 adding thereto a provision ^-ith respect 
 
 to enlisted men of the Army and National 
 
 Guard. 1 1 was further amended, but without 
 
 express reference thereto, by act of Febru- 
 ary 28, 1919, sections 1 and 2 (40 Stat., 
 
 1202-1203), with respect to all persons who 
 
 served in the Army, Na^•y, or I^Iarine 
 
 Corps, "during the present war," honorably 
 
 discharged since April 6, 1917. (See file 
 
 29225-21, Dec. 23, 1920.) 
 By act of June 4, 1920, section 8 (41 Stat., 836) 
 
 it was provided ''That section 125 of the 
 
 Act entitled 'An Act for making fm'ther 
 
 and more effectual provisions for the 
 
 national defense, and for other purposes,' 
 
 approved June .3, 19 IG, shall hereafter be 
 
 in full force and effect as originally enacted, 
 
 notwithstanding anything contained in the 
 
 Act entitled 'An Act permitting any person 
 
 who has served in the United States Army, 
 
 Navy, or Marine Corps in the present war 
 
 to retain his uniform and personal equip- 
 ment and to wear the same under certain 
 
 conditions,' approved February 28, 1918: 
 
 I 
 
 [1916, June 3, Sec. 126. Mileage and transportation on discharge.] That 
 an enlisted man honorably discharged from the Army, Navy, or Marine Corps 
 since November eleventh, nineteen hundred and eighteen, or who may hereafter 
 be honorably discharged, shall receive five cents per mile from the place of his 
 discharge to his actual bona fide home or residence, or original muster into the 
 service, at his option: Provided, That for sea travel on discharge, transportation 
 and subsistence only shall be fm-nished to enlisted men: Provided, That naval 
 reservists duly em"olled who have been honorably released from active service 
 since November eleventh, nineteen hundred and eighteen, or who may hereafter 
 be honorably released from active service, shall be entitled likewise to receive 
 mileage as aforesaid.— (39 Stat., 217, chap. 134; 40 Stat., 1203, chap. 70.) 
 
 Provided, That the words 'or the Secretary 
 of the Navy' shall be inserted immediately 
 after the words 'the Secretary of War' 
 wherever those words appear in section 125 
 of the Act approved June 3, 1916, herein- 
 before referred to." (The reference in this 
 amendment to the act approved Februarv 
 28, "1918," was evidently intended to 
 mean the act of February 28, "1919," 
 above cited.) 
 See section 32, Criminal Code, act of March 4, 
 1909 (35 Stat., 1095), as to impersonating 
 officers of the United States, etc.; act of 
 March 1, 1911 (36 Stat., 963), as to discrim- 
 ination against the uniform of the United 
 States bv places of amusement, etc.; act 
 of July 8, 1918 (40 Stat., 821), as to unau- 
 thorized wearing of miiforms of friendlv 
 nations; act of July 1, 1918 (40 Stat., 712) 
 as to members of Naval Reserve Force au- 
 orized to wear their uniforms when not 
 in active sersdce; and act of August 29, 
 1916 (39 Stat., .588), as to unauthorized 
 wearing of the distinctive insignia of the 
 Naval Reserve Force. 
 
 This section was expressly amended and reen- 
 acted to read as above Ijy act of February 
 28, 1919, section 3 (40 Stat., 1203). See 
 act of March 3, 1901(31 Stat., 1030), and see 
 note to section 1569, Re\ised Statutes, 
 under "20. Mileage and transportation on 
 discharge." 
 
 By act of June 4, 1920, section 6 (41 Stat., 836) 
 it was pro\'ided : '*' That in case any enlisted 
 man or enrolled man who, since the 11th 
 day of November, 1918, has been or here- 
 after shall be discharged from any branch 
 
 or class of the naval service for the purpose 
 of reenlisting in the Navy or ]\Iarine Corps 
 or heretofore has extended or hereafter shall 
 extend his enlistment therein, he shall lie 
 entitled * * * to travel pay as author- 
 ized in section 3 of the Act entitled ''An 
 Act permitting any person who has served 
 in the United States Army, Navy, or 
 ^Marine Corps in the present war to retain 
 his uniform and personal equipment and to 
 wear the same under certain conditions" 
 approved February 28, 1919 * * *." 
 
 1415 
 
July 1, 1916. Pt. 3. STATUTES AT LARGE. 
 
 [1916, June 12. Naval officers appointed to office in Haiti; increases in 
 personnel, pay, etc. J Tliat tlic Prosidont of the United vStutes be, and he is 
 luToby, autliori/AHl, in his discretion, to detail to assist the Republic of Haiti 
 such officers and enlisted men of the United States Navy and the United States 
 Marine Corps as may be mutually agreed upon by him and the President of the 
 Kcpu]>lic of Haiti: Provided, That the officers and enlisted men so detailed be, 
 and they are hereby, authorized to accept from the Government of Haiti the 
 said employment with compensation and emoluments from the said Govern- 
 ment of Haiti, subject to the approval of the President of the United States. — 
 (39 Stat., 223, chap. 140.) 
 
 Sec. 2. That to insure the continuance of this work during such time as 
 may be desirable, the President may have the power of substitution in the case 
 of the termination of the detail of any officer or enlisted man for any cause: 
 Provided, That during the continuance of such details the officers and enlisted 
 men shall continue to receive the pay and allowances of their ranks or ratings in 
 the Navy or Marine Corps.— (39 Stat., 224, chap. 140.) 
 
 Sec. 3. That the following increase in the United States Marine Corps be, 
 and the same is hereby, authorized: Two majors, twelve captains, eighteen 
 first lieutenants, two assistant quartermasters with the rank of captain, one 
 assistant paymaster with the rank of captain, five quartermaster sergeants, 
 five first sergeants, five gunnery sergeants, and eleven sergeants. — (39 Stat., 
 224, chap. 140.) 
 
 Sec, 4. That the following increase in the United States Navy be, and the 
 same is hereby authorized: One surgeon, two passed assistant surgeons, five 
 hospital stewards, and ten hospital apprentices, first class. — (39 Stat., 224, 
 chap. 140.) 
 
 Sec. 5. That officers and enlisted men of the Navy and Marine Corps 
 detailed for duty to assist the Republic of Haiti shall be entited to the same 
 credit for such service, for longevity, retirement, foreign service, pay, and for * 
 all other purposes, that they would receive if they were serving with the Navy 
 or with the Marine Corps.— (39 Stat., 224, chap. 140.) 
 
 As to acceptance of office under foreign govern- As to number of officers and enlisted men of the 
 
 ments, see note to Constitution, Article I, Marine Corps, see note to section 1596, 
 
 section 9, clause 8; see also joint resolution Revised Statutes; as to Medical Corps of 
 
 of October 13, 1914 (38 Stat., 780), and acts the Navy, see note to section 1368, Ile\ised 
 
 of February 11, 1918 (40 Stat., 437), and Statutes; and as to Hospital Corps, see act 
 
 June 5, 1920 (41 Stat., 1056). of August 29, 1916 (39 Stat., 572). 
 
 [1916, July 1, sec. 3. Annual reports; copy furnished Public Printer.] That 
 appropriations herein and herafter made for printing and binding shall not 
 be used for any annual report or the accompaning documents unless the copy 
 therefor is furnished to the Public Printer in the following manner: Copies 
 of the documents accompanying such annual reports on or before the fifteenth 
 day of October of each year; copies of the annual reports on or before the 
 fifteenth day of November of each year; complete revised proofs of the accom- 
 panying documents and the annual reports on the tenth and twentieth days of 
 November of each year, respectively; and all of said annual reports and accom- 
 panying documents shall be printed, made public, and available for distri- 
 bution not later than within the first five days after the assembling of each 
 regular session of Congress: The provisions of this section shall not apply to 
 
 1416 
 
Pt. 3. STATUTES AT LARGE. Aug. 29, 1916. 
 
 the annual reports of the Smithsonian Institution, the Commissioner of Patents, 
 or the Comptroller of the Currency. — (39 Stat., 336, chap. 209). 
 See notes to sections 196 and 429, Revised Statutes. 
 
 [1916, July 1, sec. 4. Estimates; lump-sum appropriations.] That the 
 information required in connection with estimates for general or lump-sum 
 appropriations by section ten of the sundry civil appropriation Act, approved 
 August first, nineteen hundred and fourteen, shall be submitted hereafter 
 according to uniform and concise methods which shall be prescribed by the 
 vSecretary of the Treasury, but with reference to estimates for pay of mechanics 
 and laborers there shall be submitted in detail only the ratings and trades 
 and the rates per diem paid or to be paid. — (39 Stat., 336, chap. 209.) 
 
 The act of August 1, 1914, section 10 (38 Stat., 
 680), referred to in this section, expressly- 
 amended and reenacted section 6 of the 
 
 act of August 24, 1912 (37 Stat., 487); 
 see the latter act and note thereto. 
 
 [1916, July 1, sec. 6. Outstanding checks; annual report.] That hereafter 
 at the termination of each fiscal year each Auditor of the Treasury shall report 
 to the Secretary of the Treasury all checks issued by any disbursing officer 
 of the Government as shown by his accounts rendered to such auditor, which 
 shall then have been outstanding and unpaid for three years or more, stating 
 fully in such report the name of the payee, for what purpose each check w^as 
 given, the office on which drawn, the number of the voucher received therefor, 
 the date, the number, and the amount for which it was drawn, and, when 
 known, the residence of the payee. And such reports shall be in lieu of the 
 returns required of disbursing officers by section three hundred and ten of the 
 Revised Statutes.— (39 Stat., 336, chap. 209.) 
 
 See section 310, Revised Statutes. 
 
 [1916, Aug. 29. Appropriation for obtaining information; accounting.] 
 That hereafter expenditures from the appropriation for obtaining information 
 from abroad and at home shall be accounted for specifically, if, in the judgment 
 of the Secretary of the Navy, they may be made public, and he shall make a 
 certificate of the amount of such expenditures as he may think it advisable not 
 to specify, and every such certificate shall be deemed a sufficient voucher for 
 the sum therein expressed to have been expended. — (39 Stat., 557, chap. 417.) 
 
 [1916, Aug. 29. Leave of absence; employees outside United States.] That 
 hereafter any civilian employee of the Navy Department w^ho is a citizen of 
 the United States and employed at any station outside the continental limits 
 of the United States may, in the discretion of the Secretary of the Navy, after at 
 least two years' continuous faithful, and satisfactory service abroad, and 
 subject to the interests of the public service, be granted accrued leave of absence, 
 with pay, for each year of service, and if an employee should elect to postpone 
 the taking of any or all of the leave to which he may be entitled in pursuance 
 hereof such leave may be allowed to accumulate for a period of not exceeding 
 four years, the rate of pay for accrued leave to be the rate obtaining at the 
 time the leave is granted. — (39 Stat., 557-558, chap. 417.) 
 
 See note to section 1545, Revised Statutes. 
 
 [1916, Aug. 29. Insane prisoners of war, etc.] Hereafter interned persons 
 and prisoners of war, under the jurisdiction of the Navy Department, who 
 
 1417 
 
Aug. 29, 1916. Pt. S. STATUTES AT LARGE. 
 
 arc or may become insane, shall be entitled to admission for treatment to the 
 Government Hospital for the Insane. — (39 Stat., 558, chap. 417.) 
 
 The designation of the "Government Hospital I 1916 (39 Stat., 309), noted under section 
 
 for the Insane" ^vas charged to "Saint 4838, Revised Statutes; see also section 
 
 Elizaheths Hospital" hy act of July 1, ' 4843, Revised Statutes. 
 
 [1916, Aug. 29. Chief of Naval Operations.] Hereafter the Chief of Naval 
 Operations, while so serving as such Chief of Naval Operations, shall have the 
 rank and title of admiral, to take rank next after The Admiral of the Navy, and 
 shall, while so serving as Chief of Naval Operations, receive the pay of §10,000 
 per annum and no allowances. All orders issued by the Chief of Naval Opera- 
 tions in performing the duties assigned him shall be performed under the 
 authority of the Secretary of the Navy, and his orders shall be considered as 
 emanating from the Secretary, and shall have full force and effect as such. To 
 assist the Chief of Naval Operations in performing the duties of his office there 
 siiall be assigned for this exclusive duty not less than fifteen officers of and above 
 the rank of lieutenant commander of the Navy or major of the Marine Corps: 
 Provided, That if an officer of the grade of captain be appointed Chief of Naval 
 Operations he shall have the rank and title of admiral, as above provided, while 
 holding that position: Provided further, That should an officer, while serving as 
 Chief of Naval Operations, be retired from active service he shall be retired with 
 the lineal rank and the retired pay to which he would be entitled had he not 
 been serving as Chief of Naval Operations. — (39 Stat., 558, chap. 417.) 
 
 Amendment to this provision was made bv act 
 of July 1, 1918 (40 Stat., 716), as to allow- 
 ances of the Chief of Naval Operations. 
 
 The office of Chief of Naval Operations was es- 
 
 tablished by act of March 3, 1915 (38 Stat., 
 929). 
 See note to section 419, Re\ised Statutes. 
 
 [1916, Aug. 29. Assistants to chiefs of bureaus and Judge Advocate General.] 
 Hereafter an officer of the Corps of Civil Engineers may be detailed as assistant 
 to the Chief of the Bureau of Yards and Docks and an officer of the Corps of 
 Naval Constructors as assistant to the Chief of Bureau of Construction and 
 Repair; and, in case of death, resignation, absence, or sickness of the chief of 
 bureau, shall, imless otherwise directed by the President, as provided by 
 section one hundred and seventy-nine of the Revised Statutes, perform the 
 duties of such chief until his successor is appointed or such absence or sickness 
 shall c^ase; and hereafter an officer of the line of the Navy or Marine Corps may 
 be detailed as assistant to the Judge Advocate General of the Navy, who shall, 
 under similar conditions, perform the duties of the Judge Advocate General. 
 (39 Stat., 558, chap. 417.) 
 
 See sections 178-182 and 421, ReAdsed Statutes, 
 
 and notes thereto. 
 For laws authorizing appointment of assistants 
 
 to other chiefs of bureaus in the Na^^ De- 
 partment, see references under section 421, 
 Revised Statutes. 
 
 [1916, Aug. 29. Lump sum employees; compensation, annual report.] Here- 
 after such amount may be expended annually for pay of drafting, technical, 
 and inspection force from the several lump sum appropriations in which specific 
 authority for such expenditure is given, as the Secretary of the Navy may deem 
 necessary within the limitation of appropriation provided for such service in 
 said lump sum appropriations at such rates of compensation as the Secretary of 
 the Navy may prescribe; and the Secretary of the Navy shall each year, in the 
 
 1418 
 
Ft. 3. STATUTES AT LARGE. 
 
 Aug. 29, 1916. 
 
 annual estimates, report to Congress the number of persons so employed, their 
 duties, and the amount paid to each. — :(39 Stat., 558, chap. 417.) 
 
 See notes to sections 416, 429, and 1545, Revised Statutes. 
 
 [1916, Aug-. 29. lease of naval lands.] That authority be, and is hereby, 
 given to the Secretary of the Navy, when in his discretion it will be for the public 
 good, to lease for periods not exceeding five years and revocable at any time, 
 such property of the United States under his control as may not for the time 
 being be required for public use and for the leasing of which there is no authority 
 under existing law, and such leases shall be reported annually to Congress: Pro- 
 vided, That the authority herein granted shall not be held to apply to oil, mineral, 
 or phosphate lands : Provided further, That all moneys received from such leases 
 shall be covered into the Treasiu-y as miscellaneous receipts. — (39 Stat., 559-560, 
 chap. 417.) 
 
 See acts of August 25, 1914 (38 Stat., 709), and February 25, 1920 (41 Stat., 437). 
 
 [1916, Aug. 29. Honorable discharge; one year's service. Repealed.] 
 
 This provision read as follows: 
 ' ' That any person who may hereafter enlist in 
 the Navy for the first time shall, in time of peace 
 if he so elects, receive discharge therefrom with- 
 out cost to himself during the month of June or 
 December, respectively, following the comple- 
 tion of one year's service at sea. An honorable 
 discharge may be granted under this provision 
 but when so granted shall not entitle the holder, 
 
 in case of reenlistment, to the benefits of an 
 honorable discharge granted upon completion 
 of an enlistment: And provided further , That, at 
 the time, he is not under charges, or undergoing 
 punishment, or in debt to the Government." 
 (39 Stat., 560, chap. 417.) 
 
 It was expressly repealed by act of March 
 4, 1917 (39 Stat., 1171). 
 
 [1916, Aug. 29. Postmasters enlisting recruits. Repealed.] 
 
 This provision read as follows: 
 ' ' That the President is authorized in his dis- 
 cretion to utilize the services of postmasters 
 of the second, third, and fourth classes in pro- 
 curing the enlistment of recruits for the Navy 
 and the Marine Corps, and for each recrmt ac- 
 
 cepted for enlistment in the Navy or the 
 Maiine Corps, the postmaster procuring his 
 enlistment shall receive the smn of $5." (39 
 Stat., 560, chap. 417.) 
 
 It was expressly repealed by act of July 
 2, 1918, section 11 (40 Stat., 754). 
 
 As to annual reports required to be made by 
 the Secretary of the Navy, see section 429, 
 Revised Statutes, and notes thereto. 
 
 [1916, Aug. 29. Armor plants; annual report.] The Secretary of the 
 
 Navy shall keep accurate and itemized account of the cost per ton of the product 
 
 of such factory or factories and report the same to Congress in his annual 
 
 report.— (39 Stat., 564, chap. 417.) 
 
 This paragraph followed authorization and 
 appropriation for the erection and purchase 
 of factories by the Secretary of the Navy, at 
 locations approved by the General Board, 
 for the manufacture of armor for the Navy. 
 
 [1916, Aug. 29. Exchange of motor vehicles.] That hereafter worn-out 
 motor-propelled vehicles for the Naval Establishment may be exchanged as a 
 part of the purchase price of new ones. — (39 Stat., 565, chap. 417.) 
 
 See section 418, Revised Statutes, and note thereto. 
 
 [1916, Aug. 29. Hospital Corps; enlistments, appointments, and pro- 
 motions ; pay ; duties ; etc.] Hereafter the authorized strength of the Hospital 
 Corps of the Navy shall equal three and one-half per centum of the authorized 
 enlisted strength of the Navy and Marine Corps, and shall be in addition thereto, 
 and as soon as the necessary transfers or appointments may be effected the 
 Hospital Corps of the United States Navy shall consist of the following grades 
 and ratings: Chief pharmacists, pharmacists, and enlisted men classified as 
 
 54641°— 22- 
 
 -90 
 
 1419 
 
Aug. 29, 1916. Pt. 3. STATUTES AT LARGE. 
 
 chief pharmacists' mates; pharmacists' mates, first class; pharmacists' mates, 
 secimd chiss; pharmacists' mates, thii'd class; hospital apprentices, first class; 
 ami hospital apprentices, second class; such classifications in enlisted ratings 
 to correspond respectively to the enlisted ratings, seamen branch, of chief petty 
 ollicers; petty oHicers, first class; petty officers, second class; petty officers, 
 third class; seamen, first class; and seamen, second class: Provided, That enlisted" 
 men of other ratings in the Navy and in the Marine Corps shall be eligible for 
 transfer to the Hospital Corps, and men of that corps to other ratings in the 
 Navy and the Marine Corps. — (39 Stat., 572, chap. 417.) 
 
 The President may hereafter, from time to time, appoint as many pharma- 
 cists as may be deemed necessary, from the rating of chief pharmacist's mate, 
 subject to such moral, physical, and professional examinations and require- 
 ments as to length of service as the Secretary of the Navy may prescribe: 
 Provided, That the pharmacists now in the Hospital Corps of the United States 
 Navy or hereafter appointed therein in accordance \\4th the provisions of this 
 Act shall have the same rank, pay, and allowances as are now or may hereafter 
 be allowed other warrant officers. — (39 Stat., 572-573, chap. 417.) 
 
 Pharmacists shall, after six years from the date of warrant, be commis- 
 sioned chief pharmacists after passing satisfactorily such examinations as the 
 Secretary of the Navy may prescribe, and shall, when so commissioned, have 
 the same rank, pay, and allowances as now or may hereafter be allowed other 
 commissioned warrant officers: Provided, That the pharmacists at present 
 in the service who have served or may hereafter serve six or more years in that 
 grade shall be eligible for promotion to the grade of chief pharmacist upon 
 satisfactorily passing the examinations provided for in this Act. 
 
 The Secretary of the Navy is hereby empowered to limit and fix the numbers 
 in the various ratings. 
 
 Section three of an Act entitled ''An Act to organize a Hospital Corps of the 
 Navy of the United States; to define its duties and regulate its pay," approved 
 June seventeenth, eighteen hunch*ed and ninety-eight, be, and the same is 
 hereby, repealed, and the pay, allowances, and emoluments of the enlisted men 
 of the Hospital Corps shall be the same as are now, or may hereafter be, allowed 
 for respective corresponding ratings, except the rating of turret captain of the 
 first class in the seaman branch of the Navy: Provided, That the pay of the 
 rating of the chief pharmacist's mate shall be the same as that now allowed 
 for the existing rating of hospital steward. 
 
 Hospital and ambulance service with such commands and at such places 
 as may be prescribed by the Secretary of the Navy, shall be performed by 
 members of said corps, and the corps shall be a constituent part of the Medical 
 Department of the Navy; and the enlisted men thereof shall be a part of the 
 enlisted force provided by law for the Navy. — (39 Stat., 573, chap. 417.) 
 
 The Hospital Corps was established by act of 
 June 17, 1898 (30 Stat., 474). See that act 
 and note thereto. 
 
 As to appointment and promotion of pharma- 
 cists, see note to section 1405, Revised 
 Statutes. 
 
 As to the authorized enlisted strength of the 
 
 As to pay of pharmacists and chief pharmacists, 
 see note to section 1556, Revised Statutes, 
 under "25. Warrant officers, acting warrant 
 officers, and commissioned warrant officers;" 
 as to pay of enlisted men of the Navy, see 
 note to section 1569, Revised Statutes. 
 As to the organization of the Medical Depart- 
 Navy and Marine f "orps, see notes to sections ] ment of the N avy, see note to section 1368, 
 
 1417 and 1596, Revised Statutes. i Revised Statutes. 
 
 1420 
 
PL 3. STATUTES AT LARGE. Aug. 29, 1916. 
 
 [1916, Aug. 29. Medical personnel serving with the Army.] Officers and 
 enlisted men of the Medical Department of the Navy, serving with a body of 
 marines detached for service with the Ai-my in accordance with the provisions 
 of section sixteen hundred and twenty-one of the Revised Statutes, 
 sliall, while so serving, be subject to the rules and articles of war prescribed 
 for the government of the Army in the same manner as the officers and men 
 of the Marine Corps while so serving. — (39 Stat., 573, chap. 417.) 
 
 See note to section 1621, Revised Statutes; see also article 2 of the Articles of War, act of 
 June 4, 1920 (40 Stat., 787). _ 
 
 [1916, Aug. 29. Naval Dental Corps.] That the President of the United 
 States is hereby authorized to appoint and commission, by and with the advice 
 and consent of the Senate, dental officers in the Navy at the rate of one for each 
 thousand of the total authorized number of officers and enlisted men of the 
 Navy and Marine Corps, in the grades of assistant dental surgeon, passed 
 assistant dental surgeon and dental surgeon, who shall constitute the Naval 
 Dental Corps, and shall be a part of the MecUcal Department of the Navy. 
 Original appointments to the Naval Dental Corps shall be made in the grade 
 of assistant dental surgeon %vith the rank of lieutenant (junior grade), and all 
 dental officers now in the Dental Corps appointed under the provisions of the 
 Act of Congress approved August twenty-second, nineteen hundred and twelve 
 (Statutes at Large, volume thirty-seven, page three hundred and forty-five), 
 or under the provisions of the Act of Congress approved August twenty-ninth, 
 nineteen hundred and sixteen (Statutes at Large, volume thirty-nine, page 
 five hundi-ed and seventy- three) , or who may hereafter be appointed shall take 
 rank and precedence with officers of the Naval Medical Corps of the same rank 
 according to the dates of their respective commissions or original appointments, 
 and all such dental officers shall be eligible for advancement in grade and rank 
 in the same manner and under the same conditions as officers of the Naval 
 Medical Cx>rps with or next after wdiom they take precedence, and shall receive 
 the same pay and allowances as officers of corresponding rank and length of 
 service in the Naval Medical Corps up to and incluchng the rank of lieutenant 
 commander: Provided, That dental surgeons shall be eligible for advancement 
 in pay and allowances, but not in rank, to and including the pay and allow- 
 ances of commander and captain, subject to such examinations as the Secretary 
 of the Navy may prescribe, except that the number of dental surgeons wdth the 
 pay and allowances of captain shall not exceed four and one-half per centum and 
 the number of dental surgeons ^^^th the pay and allowances of commander shall 
 not exceed eight per centum of the total authorized number of dental officers: 
 Provided further, That dental surgeons shall be eligible for advancement to the 
 pay and allowances of commander and captain when their total active service 
 as dental officers in the Navy is such that if rendered as officers of the Naval 
 Medical Corps, it would place them in the list of medical officers with the pay 
 and allowances of commander or captain, as the case may be: And provided 
 furtJier, That dental officers who shall have gained or lost numbers on the Navy 
 list shall be considered to have gained or lost service accordingly; and the 
 time served by dental officers on active duty as acting assistant dental surgeons 
 
 1421 
 
Aug. 29, 1916. 
 
 Pt. 3. STATUTES AT LARGE. 
 
 and assistant dental surgeons under provisions of law existing prior to the 
 passage of this Act sluill be reckoned in computing the increased service pay 
 and service for precedence and promotion of dental officers herein authorized 
 or heretofore ai)pointed. 
 
 All appointees authorized by this Act shall be citizens of the United States 
 between twenty-one and thirty-two years of age, and shall be graduates of 
 standard medical or dental colleges and trained in the several branches of 
 dentistry, and shall, before appointment, have successfully passed mental, moral, 
 physical, and professional examinations before medical and professional ex- 
 amining boards appointed by the Secretary of the Navy, and have been rec- 
 ommended for appointment by such boards: Provided, That hereafter no per- 
 son shall be appointed as assistant dental surgeon in the Navy who is not a 
 graduate of a standard medical or dental college. 
 
 Officers of the Naval Dental Corps shall become eligible for retirement in 
 the same manner and under the same conditions as now prescribed by law 
 for officers of the Naval Medical Corps, except that section fourteen hundred 
 and forty-five of the Revised Statutes of the United States shall not be applica- 
 ble to dental officers, and they shall not be entitled to rank above lieutenant 
 commander on the retired list, or to retired pay above that of captain. 
 
 All dental officers now serving under probationary appointments shall 
 become immediately eligible for permanent appointment under the provisions 
 of this Act, subject to the examinations prescribed by the Secretary of the 
 Navy for original appointment as dental officers, and may be appointed assistant 
 dental surgeon with the rank of lieutenant (junior grade) to rank from the date 
 of their probationary appointments: Provided, That the senior dental officer 
 now at the United States Naval Academy shall not be displaced by the provi- 
 sions of this Act, and he shall hereafter have the grade of dental surgeon and the 
 rank, pay, and allowances of lieutenant commander, and he shall not be eligible 
 for retirement before he has reached the age of seventy years, except for physical 
 disability incurred in the line of duty: Provided further, That no dental officer 
 in the Navy who on original appointment as dental officer was over forty years 
 of age shall be eligible for retirement before he has reached the age of seventy 
 years, except for physical disability incurred in hne of duty. 
 
 All Acts or parts of Acts inconsistent with the provisions of this Act relating 
 to the Dental Corps of the Navy are hereby repealed: Provided, That nothing 
 herein contained shall be construed to legislate out of the service any officer 
 now in the Medical Department of the Nav}^ or to reduce the rank, pay, or allow- 
 ances now authorized by law for any officer of the Navy. — (39 Stat., 573-574, 
 chap. 417; 40 Stat., 708-710, chap. 114.) 
 
 The foregoing paragraphs relating to the Naval 
 Dental Corps were expressly amended and 
 reenacted to read as above set forth by 
 act of July 1, 1918 (40 Stat., 708-710). 
 
 The Naval Dental Corps ^vas created bv act 
 of August 22, 1912 (;i7 Stat., 344), which 
 was superseded by the provisions on the 
 same subject in the act of August 29, 
 1916 (39 SUt., 573-574). 
 
 As to the organization of the Medical Depart- 
 ment of the Navy, see note to section 1368, 
 Revised Statutes. 
 
 As to pay of Dental Corps, see note to section 
 1556, Revised Statutes; see also act of 
 March 4, 1917 (39 Stat., 1182). 
 
 1422 
 
Ft. 3. STATUTES AT LARGE. 
 
 Aug. 29, 1916. 
 
 [1916, Aug. 29. Dental Reserve Corps. Repealed.] 
 
 tained in the act of August 29, 1916 (39 Stat., 
 574-575), which in tui'n were expressly repealed 
 by act of July 1, 1918 (40 Stat., 708), which pro- 
 vided for the transfer of Dental Reserve Corps 
 officers to the Naval Reserve Force. 
 
 A Navy Dental Reserve Corps was authorized 
 by the act of March 4, 1913 (37 Stat., 903), to be 
 organized and operated under the provisions of 
 law providing for the Navy Medical Reserve 
 Corps. Said act of March 4, 1913, was super- 
 seded by provisions on the same subject con- 
 
 [1916, Aug. 29, Authorized enlisted strength; men sentenced to discharge.] 
 Pay of the Navy: * * * p^y of petty officers, seamen, landsmen, and 
 apprentice seamen, including men in the engineers' force and men detailed 
 for duty with the Fish Commission, sixty-eight thousand seven hundred men, 
 and the President is hereafter authorized, whenever in his judgment a sufficient 
 national emergency exists, to increase the authorized enlisted strength of the 
 Navy to eighty-seven thousand men; and pay of enlisted men of the Hospital 
 Corps, and for the pay of enlisted men detailed for duty with the Naval Militia, 
 $30,655,704.29; pay of enlisted men undergoing sentence of court-martial, 
 S225,000, and hereafter the number of enlisted men of the Navy shall be 
 exclusive of those sentenced by court-martial to discharge * * *. — (39 
 Stat., 575, chap. 417.) 
 
 be construed as reducing the permanent 
 enlisted strength of the Regular Na\'y as 
 authorized by existing law. 
 See note to section 1417, Revised Statutes, for 
 other laws relating to the enlisted strength 
 of the Navy, and for definition of "author- 
 ized enlisted strength," and "total author- 
 ized enlisted strength." 
 Men sentenced by court-martial to dis- 
 charge. — The foregoing provisions in the act 
 of August 29, 1916, that "hereafter the number 
 of enlisted men of the Navy shaU be exclusive 
 of those sentenced by court-martial to dis- 
 charge," is permanent legislation, and modifies 
 that contained in previous acts on the same sub- 
 ject. (File 28687-4, Sept. 16, 1916. See note 
 to sec. 1417, R. S.) 
 
 By act of July 1, 1918 (40 Stat., 714), "the 
 
 authorized enlisted strength of the active 
 
 list of the Navy" was increased to 131,485; 
 
 and by act of July 11, 1919 (41 Stat., 138), 
 
 the"total authorized enlisted strength of the 
 
 active list of the Navy" was temporarily 
 
 increased, with the proviso "that nothing 
 
 herein shall be construed as affecting the 
 
 permanent * * * enlisted strength of 
 
 the Regular Navy as authorized by existing 
 
 law. ' ' The latter act further provided that 
 
 "the President is hereby authorized, when- 
 ever in his judgment a sufficient national 
 
 emergency exists, to increase the author- 
 ized enlisted strength of the Na\'y to 
 
 191,000 men." 
 By act of June 4, 1920, section 2 (41 Stat., 834\ 
 
 it was provided that nothing therein should 
 
 [1916, Aug. 29. New ratings established.] That the designation of the rat- 
 ing of coal passer be changed to fireman, third class, and that of ordinary sea- 
 man, to seaman, second class, without change of pay; and that the Bureau of 
 Navigation be authorized under rules established for the advancement of other 
 enlisted men, to advance printers to the ratings of printer, first class, and chief 
 printer, which ratings are hereby authorized with same pay and increases al- 
 lowed to yeomen, first class, and chief yeomen, respectively: And 'provided 
 further., That the rating of storekeeper is hereby established in the artificer 
 branch with the following rates of pay per month: Chief petty officer, $50; 
 petty officer, first class, $40; petty officer, second class, $35; petty officer, 
 third class, $30, subject to such increases of pay and allowances as are or may 
 hereafter be authorized by law for the enlisted men of the Navy. — (39 Stat., 
 575, chap. 417.) 
 
 See note to section 1569, Revised Statutes, for 
 later enactments as to the ratings and pay 
 
 of enlisted men; and see particularlv act 
 of June 4, 1920 (41 Stat., 836). 
 
 1423 
 
Aug. 29, 1916. 
 
 Pt. 3. STATUTES AT LARGE. Commissioned Personnel. 
 
 [1916, Aug. 29. Midshipmen, appointments allowed President and Secretary 
 
 of the Navy.] 
 
 This provision reads as follows: "Hore- 
 aftorin addition to tho ai>]iointnH'nt of niidship- 
 nu'ii to the I'lutod States Naval Academy, as 
 now ])rof!cnl)cd l)y law, the President is hereby 
 allowed lil'teen apiKiintiiients annually instead 
 often as now prescribed by law, and the Secre- 
 tary of the Navy is allowed twenty-five ap- 
 l>ointnients annually, instead of fifteen as now 
 ]>rescribed by law, the latter to be appointed 
 from the enlisted men of the Navy who are 
 citizens of the United States, and not more than 
 twenty years of age on the date of entrance to 
 the Naval Academv, and who shall have served 
 
 not less than one year as enlisted men on the 
 date of entrance: Provided, That such appoint- 
 ments shall be made in the order of merit from 
 candidate's who have in competition with each 
 other passed the mental examination now or 
 hereafter required by law for entrance to the 
 Naval Academy, and who passed the physical 
 examinations required before entrance under 
 existing laws." (39 Stat., 576, chap. 417.) 
 
 It was superseded bv acts of March 4, 
 1917 (39 Stat., 1182), and December 20, 1917 (40 
 Stat., 430), noted under section 1513, Revised 
 Statutes. 
 
 [1916, Aug. 29. Filipino students, Naval Academy.] Tliat hereafter the 
 Secretary of the Navy is authorized to permit not exceeding four Filipinos, to 
 be designated, one for each class, by the Governor General of the Pliilippine 
 Islands, to receive instruction at the United States Naval Academy at An- 
 napolis, Maryland: Provided, That the Filipinos undergoing instruction, as 
 herein authorized, shall receive the same pay, allowances, and emoluments, 
 to be paid out of the same appropriations, and shall be subject to the same rules 
 and regulations governing admission, attendance, discipline, resignation, dis- 
 charge, dismissal, and graduation as are authorized by law and regulation for 
 midshipmen appointed from the United States, but the Filipino midshipmen 
 herein authorized shall not be entitled to appointment to any commissioned 
 office in the United States Navy by reason of their graduation from the Naval 
 Academy.— (39 Stat., 576, chap. 417.) 
 
 See note to section 1513, Revised Statutes, under " Students from the Philippine Islands." 
 
 COMMISSIONED PERSONNEL. 
 
 [1916, Aug. 29. Number of commissioned officers, line of the Navy.] Here- 
 after the total number of commissioned officers of the active list of the line 
 of the Navy, exclusive of commissioned warrant officers, shall be four per 
 centum of the total authorized enlisted strength of the active list, exclusive of 
 the Hospital Corps, prisoners undergoing sentence of discharge, enlisted men 
 detailed for duty with the Naval Militia, and the Flying Corps. — (39 Stat., 576, 
 chap. 417.) 
 
 By act of June 4, 1920, section 2 (41 Stat., 
 834), it was provided that "'the number of 
 commissioned officers of the line, perma- 
 nent, temporary, and reserve, on active 
 duty shall not exceed 4 per centum of 
 the total authorized enlisted strength 
 of the Regular Navy; * * * that 
 nothing herein shall be construed as reduc- 
 ing the permanent commissioned * * * 
 strength of the Regular Navy as authorized 
 by existing law." 
 
 As to total authorized enlisted strength of 
 the Navy, see note to section 1417, Re- 
 vised Statutes. 
 
 As to number of commissioned officers in the 
 staff corps, see provisions of this act (39 
 Stat., 577), set forth below. 
 
 As to number of commissioned line officers, 
 additional numbers, etc., see notes to 
 sections 1363-1364, Revised Statutes. 
 
 As to warrant officers and commissioned war- 
 rant officers, see note to section 1405, Re- 
 \nsod Statutes. 
 The words "total number of commis- 
 sioned officers of the active list of the line 
 of the Navy," refer to the total authorized 
 number of commissioned line officers of the 
 active list, as distinguished from the actual 
 numlier of such officers in the Navy at any 
 one time. But no officers are included except 
 those who are "commissioned" officers in the 
 literal sense; hence, these words can not be 
 construed to embrace acting ensigns, acting 
 lieutenants of the junior grade, who are not 
 commissioned by the President, and addi- 
 tional number officers are not included. (File 
 28687-4, Sept. 16, 1916.) 
 
 1424 
 
Commissioned Persomiei: Ft. 3. STATUTES AT LARGE. 
 
 Aug. 29, 1916. 
 
 [1916, Aug. 29. Distribution in grades of line oflacers.] That the total 
 number of commissioned line officers on the active list at any one time, exclusive 
 of commissioned warrant officers, shall be distributed in the proportion of one 
 of the grade of rear admiral to four in the grade of captain, to seven in the grade 
 of commander, to fourteen in the grade of lieutenant commander, to thirty- 
 two and one-half in the grade of lieutenant, to forty-one and one-half in the 
 grades of lieutenant (junior grade) and ensign, inclusive.— (39 Stat., 576, 
 chap. 417.) 
 
 See provisions of this act (39 Stat., 577), set 
 
 forth below, as to computations to be 
 
 made by the Secretary of the Navy to 
 
 determine the number of officers in each 
 
 grade and rank; distribution of officers 
 
 between the upper and lower halves of 
 
 the rank of rear admiral; disjjosition of 
 
 fractional numbers resulting from com- 
 putations; and exclusion of additional 
 
 number officers from computations. 
 See notes to sections 1362-1364, Revised 
 
 Statutes, as to grades of line officers, etc. 
 "Total number of commissioned line 
 officers on the active list at any one 
 time." — These words refer to the actual num- 
 
 ber of commissioned line officers on the active 
 list, as distinguished from the authorized 
 number. They do not include anyone who 
 is not actually a commissioned officer at the 
 time under consideration. Thus, one com- 
 missioned after July 1 in any year could 
 not be counted as one of the commissioned 
 officers on the active list July 1 of that year, 
 notwithstanding that his commission when 
 subsequently issued might bear date as of 
 July 1 or prior thereto. (File 28687-4, Sept. 16, 
 1916. Compare act of July 1, 1918, 40 Stat., 
 716, providing that midshipmen may be com- 
 missioned "'effective" from date of graduation.) 
 
 [1916, Aug. 29. Promotions to lieutenant; length of service.] That lieu- 
 tenants (junior grade) shall have had not less than three years' service in 
 that grade before being eligible for promotion to the grade of lieutenant. — 
 (39 Stat., 576, chap. 417.) 
 
 See act of June 4, 1920, section 5 (41 Stat., 
 
 836), which suspended the operation of 
 
 this provision until June 30, 1923. 
 See act of March 3, 1899, section 7 (30 Stat., 
 
 1005), as to promotion of ensigns to lieu- 
 
 tenants (junior grade), after three years, 
 service. 
 See notes to section 1561-1562, Revised 
 Statutes, as to commencement of pay on 
 promotion. 
 
 [1916, Aug. 29. Number of commissioned officers, staff corps.] The total 
 authorized number of commissioned officers of the active list of the following 
 staff corps, exclusive of commissioned warrant officers, shall be based on per- 
 centages of the total number of commissioned officers of the active list of the line 
 of the Navy as follows : 
 
 Pay Corps, twelve per centum; Construction Corps, five per centum; Corps 
 of Civil Engineers, two per centum; and that the total authorized number of 
 commissioned officers of the Medical Corps shall be sixty-five one hundredths 
 of one per centum of the total authorized number of the officers and enlisted 
 men of the Navy and Marine Corps, including midshipmen. Hospital Corps, 
 prisoners undergoing sentence of discharge, enlisted men detailed for duty with 
 the Naval Militia, and the Flying Corps. — (39 Stat., 576, chap. 417.) 
 
 The designation of the "Pay Corps" was 
 
 changed to "Supply Corps" by act of 
 
 July 11, 1919 (41 Stat., 417). 
 By act of June 4, 1920, section 2 (41 Stat., 834), 
 
 it was provided that "the number of com- 
 missioned officers of the line, permanent, 
 
 temporary, and reserve on active duty 
 
 shall not exceed 4 per centum of the total 
 
 authorized enlisted strength of the Regular 
 
 Navy, and the number of staff officers on 
 
 active duty of whatever kind shall be in 
 
 the same proportions as authorized by ex- 
 isting law; * * * that nothing herein 
 shall be construed as reducing the perma- 
 nent commissioned or enlisted strength of 
 the Regular Navy as authorized by existing 
 law. " 
 Medical Corps: See note to section 1368, Revised 
 Statutes. As to total authorized niunber of 
 enlisted men of the Navy, see note to 
 section 1417, Re\-ised Statutes; as to au- 
 thorized number of midshipmen, see note 
 
 1425 
 
Aug. 29, 1916. 
 
 Pt. S. STATUTES AT LARGE. Commissioned Persomiel. 
 
 to section 1513, Revised Statutes; as to 
 
 authorized commissioned and enlisted 
 
 strensrth of the Marine Corps, see note to 
 
 section 1596, Re\-ised Statutes. 
 Dental Corps: See act of August 29, 1916 
 
 (39 Stat., 573-574). 
 Supply Corps: See note to section 1376, Revised 
 
 Statutes. 
 Chajilain Corps: See note to section 1395, Re- 
 
 \'ised Statutes, and see act of June 30, 1914 
 
 (38 Stat., 403). 
 Professors of Mathematics: See note to section 
 
 1399, Re\ised Statutes. 
 Construction Corps: See notes to sections 1402- 
 
 1403, Re\'ised Statutes. 
 Civil Engineer Corps: See note to section 1413, 
 
 Revised Statutes. 
 Warrant officers and commissioned warrant 
 
 officers: See note to section 1405, Revised 
 
 Statutes. 
 "Total authorized number of commis- 
 sioned oflB-cers of the active list of the 
 * * * staflE corps." — These words refer to 
 the total authorized number of commissioned 
 officers of the active list of the staff corps con- 
 cerned, as distinfjuished from the actual niunber 
 of such officers m the Nav>' at any one time. 
 
 ' Additional numbers not included. (File 
 j 28687-4, Sept. 16, 1916.) 
 
 I To ascertain the "authorized" number of 
 ! commissioned staff officers in the various corps 
 i concerned, exclusive of commissioned warrant 
 i officers, the total authorized number of commis- 
 sioned line officers of the active list is taken as a 
 basis, and not the actual number of commis- 
 sioned line fficers. (File 28687-4, Sept. 16, 
 1916.) 
 
 To ascertain the total authorized number of 
 commissioned officers of the Medical Corps, the 
 •'total authorized number of the officers and en- 
 listed men of the Navy and Marine Corps" is 
 taken as the basis; these words are used in the 
 law in the broad sense, which includes every 
 person authorized for the active list of the 
 regular naval service. Where the total ''au- 
 thorized " niunber is not fixed by law, as in the 
 cases of some warrant and commissioned war- 
 rant officers, the computation may be based 
 upon the actual number of such officers; but 
 in other cases, the computation should be fjased 
 upon the "total authorized niunber" and not 
 the actual number. (File 28687-4, Sept. 16, 
 1916.) 
 
 [1916, Aug. 29. Advancement of staff officers below lieutenant commander; 
 rank of assistant surgeons.] Officers of the lower grades of the Medical Corps, 
 Pay Corps, Construction Corps, and Corps of Civil Engineers shall be advanced 
 in rank up to and including the rank of lieutenant commander with the officers 
 of the line with whom or next after whom they take precedence under existing 
 law: Provided, That all assistant surgeons shall from date of their original 
 appointment take rank and precedence with lieutenants (junior grade). — (39 
 Stat., 576-577, chap. 417.) 
 
 struction Corps: see sections 1402-1403, 
 1477_, and 1480, Revised Statutes; Civil 
 Engineer Corps: see sections 1413, 1478, 
 and 1480, Revised Statutes; Chaplain 
 Corps: see act of June 30, 1914 (38 Stat., 
 403), and notes to sections 1479-1480, 
 Revised Statutes; professors of mathe- 
 matics: see note to section 1480, Re^dsed 
 Statutes; Dental Corps: see act of August 29, 
 _ 1916 (39 Stat., 573-574). 
 This pro\'ision as to advancement of staff offi- 
 cers to higher ranks was suspended in 
 certain cases until June 30, 1923: see act 
 of June 4, 1920 (41 Stat., 836). 
 Advancement in rank with line ofl&- 
 cers. — Tliis enactment is substantially iden- 
 tical -with the long established prior practice of 
 advancing staff officers to higher ranks with. 
 their "running mates," which found expres- 
 sion in the Navy Regulations (e. g., art. 1005 
 (f), Na^'y Regs. 1913). The pre\'ious practice 
 was not changed by this enactment, and as that 
 practice was to advance staff officers in rank 
 on the date their running mates in this line be- 
 came due for promotion, regardless of whether 
 or not the latter qualified for promotion as of 
 that date, and not necessaiily contempora- 
 neously with their line running mates, the same 
 rule should be applied under this enactment. 
 (File 28687-4:1, Sept. 16, 1916.) 
 
 By act of May 22, 1917, section 17 (40 Stat., 89), 
 it was pro\-ided that nothing contained in 
 this act "shall operate to disturb the rela- 
 tive position of officers in the ^ledical 
 Corps -with reference to precedence or pro- 
 motion, but all such officers otherwise 
 qualified shall he advanced in rank ^^ith or 
 ahead of officers in said corps who were 
 their juniors on the date of said act. " 
 
 A provision with reference to assistant civil 
 engineers, similar to the above pro\iso 
 relating to assistant surgeons, was embodied 
 in act of March 4, 1917 (39 Stat., 1184). 
 
 As to advance ment of staff officers to the ranks 
 of commander, captain, and rear admirals, 
 see act of July 1, 1918 (40 Stat., 718). 
 
 As to change in designation of "Pay Corps" to 
 "Supply Corps," see act of July 11, 1919 
 (41 Stat., 147). 
 
 As to precedence of line and staff officera, see 
 sections 1485-1486, Re\dsed Statutes, and 
 notes thereto. 
 
 Examinations required for advancement in 
 rank of staff officers: See sections 1493 and 
 1496, Re\ised Statutes, and act of Mav 22, 
 1917, section 20 (40 Stat., 89). 
 
 Rank and promotion in Medical Corps: see sec- 
 tions 1371, 1474, and 1480, Revised Sta- 
 tutes; Supply Corps: see sections 1380, 
 1475, and 1480, Revised Statutes; Con- 
 
 1426 
 
Commissioned Persomiel. Pt. 3. STATUTES AT LARGE. 
 
 Aug. 29, 1916. 
 
 Rank of assistant surgeons. — The proviso 
 in the act of August 29, 1916, as to the rank of 
 assistant sui'geous is explicit; in order to give 
 effect thereto, certain officers in the grade of 
 assistant surgeon on the date of that act must be 
 given precedence mth the line officers who were 
 lieutenants (junior grade) when such assistant 
 surgeons were originally appointed, and "mth 
 whom or next after whom" the assistant sur- 
 
 geons in question took precedence on date of 
 appointment; the assistant surgeons in question 
 will thus in some cases be given precedence 
 ahead of certain passed assistant surgeons, but 
 this is a matter which can be remedied only by 
 Congress. (File 11130-37, Jan. 19, 1917. See 
 actof May 22, 1917, sec. 17, above quoted, which 
 was enacted to remedy this situation.) 
 
 [1916, Aug. 29. Computations; authorized number in each rank, line and 
 staff.] That to determine the authorized number of officers in the various 
 grades and ranks of the line and of the staff corps as herein provided, computa- 
 tions shall be made by the Secretary of the Navy semiannually, as of July first 
 and January first of each year, and the resulting numbers in the various grades 
 and ranks, as so computed, shall be held and considered for all purposes as the 
 authorized number of officers in such various grades and ranks and shall not 
 be varied between such dates. — (39 Stat., 577, chap. 417.) 
 
 This provision Avas amended by act of July 11, 
 1919 (41 Stat., 139), which provided that 
 "the provision of existing law which re- 
 quires the Secretary of the Navy to make 
 computations semiannually as of July 1 
 and January 1 of each year * * * is here- 
 by amended so that said computations shall 
 be made * * * at least once each year 
 and at such times as the Secretary of the 
 Navy may direct * * *." 
 
 See provisions of this act (39 Stat., 577), set 
 forth below, as to distribution of officers 
 between upper and lower halves in the 
 rank of rear admiral; disposition of frac- 
 tional numbers in computation of officers; 
 and exclusion of additional number officers 
 from computations. 
 The words, "such, dates," as used in the 
 
 act of August 29, 1916, referred specifically to 
 
 the dates of July 1 and January 1 of each year; 
 
 accordingly, the provision against varying the 
 
 number of officers between those dates resulted 
 in preventing additional appointments of com- 
 missioned officers except on the dates men- 
 tioned and not between those dates. By act of 
 May 22, 1917, section 6 (40 Stat., 86), the Secre- 
 tary of the Navy was authorized, during the 
 existing war, to make computations on July 1 
 and January 1 of each year, ' ' and at such other 
 times as he may deem necessary." This enact- 
 ment suspended temporarily the restriction 
 contained in the act of August 29, 1916, upon 
 varying the number of officers between specified 
 dates, and permitted of daily computations if 
 the Secretary considered such action advisa- 
 ble. The result was that additional appoint- 
 ments of commissioned officers in the lowest 
 grades, line and staff, could be made under 
 said provision of May 22, 1917, at anv time that 
 eligibles became available. (File 28687-22, 
 June 14, 1917.) 
 
 [1916, Aug. 29. Staff officers, distribution in grades; appointments in 
 Medical and Construction Corps; qualifications.] The total number of com- 
 missioned officers of the active list of the following mentioned staff corps at any 
 one tune, exclusive of commissioned warrant officers, shall be distributed in 
 the various grades of the respective corps as follows: 
 
 IMedical Corps : One-half medical directors with the rank of rear admiral 
 to four medical directors with the rank of captain, to eight medical inspectors 
 with rank of commander, to eighty-seven and one-half in the grades below 
 medical mspector : Provided, That hereafter appointees to the grade of assistant 
 surgeon shall be between the ages of twenty-one and thirty-two at the time of 
 appomtment. 
 
 Pay Corps : One-half pay directors with the rank of rear admiral to four 
 pay directors with the rank of captain, to eight pay inspectors with the rank of 
 commander, to eighty-seven and one-half in the grades below pay inspector. 
 
 Construction Corps: One-half naval constructors with the rank of 
 rear admiral to eight and one-half naval constructors with the rank of captain, 
 to fourteen naval constructors with the rank of commander, to seventy-seven 
 naval constructors and assistant naval constructors with rank below com- 
 
 1427 
 
Aug. 29, 1916. 
 
 Pt. S. STATUTES AT LARGE. Commissioned Personnel. 
 
 mander: Provided, That vacancies in the Construction Corps shall bo filled in 
 the manner now proscribed by law, at such annual rate as the Secretary of the 
 Navy may proscribe: Provided further, That hereafter ensigns of not less than 
 one year's service as such shall be eligible for transfer to the Construction Corps. 
 Corps of Ci\T[l Engineers: One-half civil engineers w^ith the rank of 
 roar admiral to five and one-half civil engineers with the rank of captain, to 
 fourteen civil engineers w'ith the rank of commander, to eighty civil engineers 
 and assistant civil engineers with the rank below commander. — (39 Stat., 577, 
 chap. 417.) 
 
 The designation of the "Pay Corps" was 
 
 chantjed to "Supply Corps" by act of Julv 
 
 11, 1919 (41 Stat., 147). 
 As to number and rank of officers in the staff 
 
 corps, see the following citations: Medical 
 
 Corps: sections 1368 and 1474, Re^dsed 
 
 Statutes; Supply Corps: sections 1376 and 
 
 1475, Revised Statutes; Construction Corps: 
 
 sections 1402, 1403, and 1477, Revised 
 
 Statutes; Civil Engineer Corps: sections 
 
 1413 and 1478, RcNised Statutes; Chaplain 
 
 Corps: sections 1395 and 1479, Revised 
 
 Statutes, and act of June 30, 1914 (38 Stat., 
 
 403); Professors of mathematics: sections 
 
 1399 and 1480, Rc^-ised Statutes; Dental 
 
 Corps: act of August 29, 1916 (39 Stat., 
 
 573-574). 
 See note to section 1480, Revised Statutes, as 
 
 to filling of vacancies in the rank of rear- 
 
 admiial under this provision; and see act 
 
 of July 1,1918 ( 40 Stat., 718), as to advance- 
 
 ment by selection to the ranks of com- 
 mander, captain, and rear admiral in the 
 staff corps of the Navy. 
 
 Qualifications for appointment as assistant 
 surgeon: See section 1370, Re\ised Stat- 
 utes, and note thereto. 
 
 Vacancies in the Construction Corps, how 
 filled: See sections 1402-1403, Revised 
 Statutes, and notes thereto. 
 
 Computations to determine number of officers 
 in each grade and rank in certain staff 
 corps: See pro\'ision of this act (39 Stat., 
 577), set forth above. 
 
 See below (39 Stat., 577), as to distribution of 
 officers between upper and lower halves of 
 rear admiral, disposition of fractional 
 numbers resulting from computations, 
 and exclusion of additional-number offi- 
 cers in making computations. 
 
 See above as to distribution in grades of line 
 
 officers. 
 
 [1916,. Aug. 29. Professors of mathematics, no further appointments.] Here- 
 after no further appointments shall be made to the Corps of Professors of 
 Mathematics, and that corps shall cease to exist upon the death, resignation, 
 or dismissal of the officers now carried in that corps on the active and retired 
 lists of the Navy.— (39 Stat., 577, chap. 417.) 
 
 See sections 1399-1401, and 1480, Revised Statutes, and notes thereto. 
 
 [1916, Aug. 29. Rear admirals, distribution between upper and lower halves.] 
 When there is an odd number of officers in the grade or rank of rear admiral 
 in the line or in each corps, the lower division thereof shall include the excess 
 in number, except where there is but one. — (39 Stat., 577, chap. 417.) 
 
 act (39 Stat., 577-578), set forth below, 
 as to pay of rear admirals. 
 
 See note to section 13G2, Revised Statutes, as 
 to division of rear admirals into two grades 
 for pay purposes; and see provision of this 
 
 [1916, Aug. 29. Computations, disposition of fractional numbers.] Whenever 
 a final fraction occurs in computing the authorized number of any corps, grade 
 or rank in the naval service, the nearest whole munber shall be regarded as the 
 authorized number: Provided, That at least one officer shall be allowed in each 
 grade or rank. — (39 Stat., 577, chap. 417.) 
 
 line or in a staff corps authorized for the period 
 following the computations, while in other 
 cases, the result may be a shortage of one in 
 such total authorized number. The provisions 
 of the law in this respect are confiicting, and 
 under such circumstances the total number 
 authorized for the line or the particular corps 
 
 Total number of officers not to be ex- 
 ceeded. — In comjjutiug the authorized num- 
 ber of officers in the various grades and ranks 
 in the manner prescribed, by taking the near- 
 est whole number whenever a final fraction 
 occurs, the result may be in some cases an 
 excess of one officer in the total number of the 
 
 1428 
 
Commissioned Persomiel. Ft. 3. STATUTES AT LARGE. 
 
 Aug. 29, 1916. 
 
 concerned shotild control; this may be done 
 by adding one officer to the authorized number 
 in the lowest grade or rank, or subtracting one 
 therefrom, as the case may be, in order to make 
 the total number conform to the total number 
 authorized for the period involved. (File 
 28687-1, Sept. 16, 1916.) 
 
 Computations in Marine Corps. —The 
 words "naval ser\-ice"' as used in this provision 
 Anth reference to final fractions in computing 
 the number of officers, etc., include the Marine 
 Corps. (File 28687-5, Aug. 29, 1916; see note 
 to sec. 1596, R. S., "Computing number of 
 officers.") 
 
 [1916, Aug. 29. Computations; additional number officers excluded; no re- 
 duction in any staff grade.] For the purpose of determining the authorized 
 number of officers in any grade or rank of the Ime or of the staff corps, there 
 sliall be excluded from consideration those officers cari'ied by law as additional 
 numbers, including staff officers heretofore permanently commissioned witli the 
 rank of rear admiral, and nothing contained herein shall be held to reduce 
 below that heretofore authorized by law the number of officers in any grade or 
 rank in the staff corps. — (39 Stat., 577, chap. 417.) 
 
 See note to section 1363, Revised Statutes, as to 
 additional number officers; see note to sec- 
 tion 421, Re\dsed Statutes, under "Rank 
 of chiefs of bmreaus," with reference to the 
 act of June 24, 1910 (36 Stat., 607, repealed 
 by act of August 22, 1912. 37 Stat., 328), 
 under which certain staff officers were 
 commissioned with the permanent rank of 
 rear admii'al on the active list prior to the 
 act of August 29, 1916; and see act of 
 March 4, 1915 (cited in note to sec. 1478, 
 R. S.\ under which an officer in the CiA-il 
 Engineer Corps was commissioned \riX\i the 
 permanent rank of rear admiral on the 
 active list. 
 See notes to sections 1368, 1376, 1395, 1399, 
 1402, 1403, and 1413, Re\ised Statutes, as 
 
 to numbers of officers authorized in the va- 
 rious staff corps. 
 Additional number oflB.cers. — While there 
 are many references in the act of August 29, 
 1916, to additional number officers, which show 
 that Congress was familiar with the legislation 
 on that subject, there is nothing in said act 
 which expressly indicates that Congi'ess in- 
 tended to repeal prior laws relating thereto and 
 to proAdde that additional number officers 
 should become regular numbers on promotion; 
 instead, the act indicates the contrary; accord- 
 ingly, held, that officers who are additional 
 numbers in grade continue to be additional 
 numbers after promotion bv selection. (File 
 28687-11, Jan. 2, 1917.) 
 
 [1916, Aug. 29. Rea,r admirals, pay and allowances.] Hereafter pay and 
 allowances of officers in the upper half of the grade or rank of rear admiral, 
 including the staff corps and including staff officers heretofore permanently 
 conmiissioned with the rank of rear admiral, shall be that now allowed by law 
 for the first nine rear admirals, and the pay and allowances of officers in the 
 lower half of the grade or rank of rear admiral, including the staff corps, shall 
 be that now allowed by law for the second nine rear admirals. — (39 Stat., 577- 
 578, chap. 417.) 
 
 See note to section 1362, Revised Statutes, as 
 to division of rear admii'als into two gi'ades 
 for pay purposes; see note to section 1556, 
 Re^dsed Statutes, as to pay of rear admirals; 
 see notes to sections 1487 and 1558, Re\'ised 
 Statutes, as to allowances; and see note to 
 
 section 421, Revised Statutes, under "Rank 
 of, chiefs of bureaus," and note to section 
 1478, Re\dsed Statutes, as to staff officers 
 permanently commissioned \vith the rank 
 of rear admiral on the active list prior to 
 the act of August 29, 1916. 
 
 [1916, Aug. 29. Rank by date of commission, staff corps; exceptions.] That 
 officers shall take rank in each staff corps according to the dates of commission 
 in the several grades, excepting in cases where- they have gained or lost 
 numbers. — (39 Stat., 578, chap. 417.) 
 
 See notes to sections 1485-1486, RoAosed Statutes. 
 
 [1916, Aug. 29. Commissioned warrant officers, pay and allowances.] Here- 
 after chief boatswains, chief gunners, chief machinists, chief carpenters, chief 
 sail makers, chief pharmacists, and chief pay clerks, on the active list with 
 
 1429 
 
Aug. 20, 1916. 
 
 Ft. S. STATUTES AT LARGE. Commissioned Persomiel. 
 
 creditable records, shall, after six years from date of commission, receive the 
 pay and allowances that are now or may hereafter be allowed a lieutenant 
 (junior grade). United States Navy: Provided, That chief boatswains, chief 
 gunners, chief machinists, chief carpenters, chief sail makers, chief pharmacists, 
 and chief pay clerks, on the active list with creditable records, shall, after twelve 
 years from date of commission, receive the pay and allowances that are now or 
 may hereafter be allowed a lieutenant, United States Navy. — (39 Stat., 578, 
 chap. 417.) 
 
 See note to section 1556, Revised Statutes, under "25. Warrant officers, acting warrant 
 officers, and commissioned warrant officers." 
 
 [1916, Aug. 29. Warrant officers, heat and light; leave of absence.] War- 
 rant officers shall receive the same allowances of heat and light as are now or 
 may hereafter be allowed an ensign, United States Navy. 
 
 Warrant officers shall be allowed such leave of absence, with full pay, as 
 is now or may hereafter be allowed other officers of the United States Navy. — 
 (39 Stat., 578, chap. 417.) 
 
 See note to section 1487, Revised Statutes, as 
 to allowance of quarters and heat and 
 
 light therefor. 
 
 See note to section 1556, Revised Statutes, 
 under "40. Absence from duty. " 
 
 [1916, Aug. 29. Promotion by selection, line officers.] Hereafter all pro- 
 motions to the grades of commander, captain, and rear admiral of the line of 
 the Navy, including the promotion of those captains, commanders, and lieu- 
 tenant commanders who are, or may be, carried on the Navy list as additional 
 to the numbers of such grades, shall be by selection only from the next lower 
 respective grade upon the recommendation of a board of naval officers as herein 
 provided.— (39 Stat., 578, chap. 417.) 
 
 The provisions of this act relating to promotion 
 by selection were extended, with certain 
 modifications, to the staff corps by act of 
 July 1, 1918 (40 Stat., 718). 
 
 By act of July 11, 1919 (41 Stat., 147), it was 
 provided: "That the provisions of the Act 
 of August 29, 1916, regarding the promo- 
 tion of captains in the line of the permanent 
 Navy shall not restrict the promotion of 
 such captains as may have been wounded 
 in line of duty and who are now on tlie 
 active list, and such captains shall be 
 entitled to the benefits of the provisions of 
 section 1494, Revised Statutes of the 
 United States, and also to the benefits of 
 the Act of March 4, 1911." 
 
 The requirement of this provision, that promo- 
 tions be made "from the next lower 
 respective grade, " was suspended in cer- 
 tain cases until June 30, 1923, by act of 
 June 4, 1920, section 5 (41 Stat., 836), 
 having previously been suspended in the 
 same class of cases by act of July 11, 1919 
 (41 Stat., 140). 
 
 See note to section 1458, Revised Statutes, on 
 general subject of promotion. 
 
 Selection law not applicable to tem- 
 porary promotions. — This act clearly relates 
 to promotions in the permanent Navy. The 
 act of May 22, 1917 (40 Stat., 85), authorized 
 temporary promotions to all grades, without 
 making any express provision as to the manner 
 in which such promotions were to be made: 
 Held, that such temporary promotions above 
 the grade of lieutenant commander may be 
 made without compliance with the selection 
 law of August 29, 1916; but that the provisions 
 of said law may be extended by regulations to 
 such temporary promotions if deemed advisable. 
 (File 28687-22, June 14, 1917.) 
 
 The Secretary of the Navy established a 
 procedure with reference to the selection of 
 officers for temporary promotion somewhat 
 similar to that recjuired by the act of August 
 29, 1916, ^\itli reference to permanent promo- 
 tions: Held, that this did not have the effect of 
 making any provision of said act of August 29, 
 1916, applicable to such temporary promotions, 
 but was merely a procedure administratively 
 adopted which was not binding upon the Sec- 
 retary, who could modify same if he deemed it 
 advisable to do so. (File 26521-230:5, Feb. 
 1, 1918.) 
 
 [1916, Aug. 29. Selection board; proceedings.] The board shall consist of 
 nine rear admirals on the active list of the line of the Navy not restricted by 
 law to the performance of shore duty only, and shall be appointed by the Sec- 
 
 1430 
 
Commissioned Persomiel. Pt. 3. STATUTES AT LARGE. 
 
 Aug. 29, 1916. 
 
 retary of the Navy and convened during the month of December of each year 
 and as soon after the first day of the month as practicable. 
 
 Each member of said board shall swear, or affirm, that he will, without 
 prejudice or partiality, and havmg m view solely the special fitness of officers 
 and the efficiency of the naval service, perform the duties imposed upon him 
 as herein provided. 
 
 The board shall be furnished by the Secretary of the Navy with the number 
 of vacancies in the grades of rear admiral, captain, and commander to be filled 
 during the following calendar year, including the vacancies existing at the 
 tune of the convening of the board and those that will occur by operation of 
 law from the date of convenmg until the end of the next calendar year, and with 
 the names of all officers who are eligible for consideration for selection as herein 
 authorized, together with the record of each officer: Provided, That any officer 
 eligible for consideration for selection shall have the right to forward through 
 official channels at any time not later than ten days after the convening of said 
 board a written communication invitmg attention to any matter of record in 
 the Navy Department concerning himseH which he deems important in the 
 consideration of his case : Provided, That such communication shall not contain 
 any reflection upon the character, conduct, or motives of or criticism of any 
 officer.— (39 Stat., 578, chap. 417.) 
 
 Amendment to this pro^dsion was made by act 
 of July 11, 1919 (41 Stat., 139), as follows: 
 "The provision of existing law which 
 requires the Secretar>^ of the ^axy * * * 
 to convene the boards to select officers of 
 the line and of the staff corps for promotion 
 is hereby amended so that * * * said 
 boards shall be convened at least once 
 each year and at such times as the Secre- 
 tary of the Na\'y may direct, and the 
 boards shall recommend for promotion 
 such number of officers as may be nec- 
 essary to fill vacancies then existing and 
 which may occur diuing the next period 
 of time." 
 The provisions of this act as to promotion by 
 selection were extended, with certain 
 modifications, to the staff corps by act of 
 July 1,1918 (40 Stat., 718). 
 See note to section 1499, Re^dsed Statutes, 
 under "Records submitted to Board on 
 Selection for promotion. " 
 Date of vacancy on retirement. — The 
 retirement of an officer on his own application, 
 pursuant to section 1443, Re%Tsed Statutes, 
 takes effect, so as to create a vacancy which 
 may be filled by the appointing power, on the 
 date when his application for retirement is 
 approved by the President, and is not deferred 
 untU the date he receives notice of the Presi- 
 dent's action. (32 Op. Atty. Gen., 176. See 
 also notes to sees. 1444 and 1458, R. S.) 
 
 Membership of selection board. — Offi- 
 cers of the line of the Navy who have c}ualified 
 for the permanent rank of rear admiral, and 
 who have been commissioned as such by the 
 President during a recess of the Senate, are 
 
 qualified for 8er^•ice as members of the selection 
 board pro^•ided bv the act of August 29, 1916. 
 (FUe 28687-31, Oct. 11, 1920.) 
 
 Additional number officers, if recom- 
 mended for promotion, will not become regular 
 numbers if promoted, and are therefore in ad- 
 dition to the number of vacancies as furnished 
 the selection board. (File 28687-11, Jan. 2, 
 1917.) 
 
 Names of officers previously selected 
 but not promoted must be submitted to the 
 next selection board, if otherwise eligible for 
 consideration. Under the act of August 29, 
 1916, the officer's eligibility for promotion after 
 favorable recommendation by a selection board 
 continued until the end of the following cal- 
 endar year; if no vacancy occtured in the next 
 higher gi'ade to which he could be promoted 
 dmingthat calendar year, he became ineligible 
 for promotion unless again recommended by a 
 selection board. BvactofMav22, 1917, section 
 6 (40 Stat. 86), the Secretary of the Navy was 
 authorized, during the existing war, to convene 
 selection boards ' ' at such times as the exigencies 
 of the ser"vice may require." Under this 
 amendment, an officer recommended by a 
 special board so convened continued eligible 
 for promotion only during such indefinite 
 period as might intervene between the date 
 that his eligibility attached and the convening 
 of the next following board for selection; and 
 if no vacancy occurred for him in the meantime, 
 his name was required to be furnished to the 
 new board, if still eligible for consideration. 
 (File 28687-22, June 20, 1917; 28687-22:1, 
 Dec. 27, 1918.) 
 
 1431 
 
Aug. 29, 1916. 
 
 Ft. 3. STATUTES AT LARGE. Commissioned Persomiel. 
 
 Tem.porary promotions. — The require- 
 ment as to four years' service in o;rade before 
 becoming eligible for consideration by the 
 selection board does not a]5ply with respect to 
 temporary promotions under the act of May 22, 
 1917 (40 Stat., 85); but the President may' pre- 
 scribe a similar requirement for temporary pro- 
 motion if he deems such action advisable. 
 (File 28687-22, June 14, 1917.) 
 
 [1916, Aug. 29. Service in grade necessary before selection.] That no 
 captains, commanders, or lieutenant commanders who shall have had less 
 than four years' service in the grade in which he is serving on November the 
 thu-tieth of the year of the convening of the board shall be eligible for considera- 
 tion by the board. — (39 Stat., 578, chap. 417.) 
 
 This requirement as to length of service in 
 
 grade not applicable to the selection of 
 
 staff officers under the act of Jxily 1, 1918 
 
 (40 Stat., 718). 
 This requirement as to length of service in 
 
 gi'ade was suspended in certain cases until 
 
 June 30, 1923, by act of Juno 4, 1920, sec- 
 tion 5 (41 Stat., 836), having previously 
 
 been suspended until July 1, 1920, in the 
 
 same class of cases, by act of July 11, 1919 
 
 (41 Stat.. 140). 
 
 [1916, Aug. 29. Engineer officers, eligibility for selection; additional 
 numbers.] That the recommendation of the board in the case of officers of the 
 former Engineer Corps who are restricted by law to the performance of shore 
 duty only and in that of officers who may hereafter be assigned to engineering 
 duty only shall be based upon their comparative fitness for the duties pre- 
 scribed for them by law. Upon promotion they shall be carried as additional 
 numbers in grade. — (39 Stat., 578-579, chap. 417.) 
 
 See note to section 1390, Revised Statutes, for 
 
 laws relating to officers for engineering duty 
 
 only; and see note to section 1363, Revised 
 
 Statutes, for laws relating to additional 
 
 officers. 
 See provisions of this act (39 Stat., 579),' set 
 
 forth below, as to recommendation of selec- 
 tion board and exemption from sea service 
 
 in the cases of engineer officers; and see 
 
 below (39 Stat., 584), as to promotion of 
 
 officers commissioned for aeronautic duty 
 
 only. 
 
 [1916, Aug. 29. Number of officers recommended for promotion; six members 
 of board must concur.] The board shall recommend for promotion a number 
 of officers in each grade equal to the number of vacancies to be filled in the next 
 higher grade during the following calendar year: Provided, That no officer 
 shall be recommended for promotion unless he shall have received the recom- 
 mendation of not less than six members of said board. — (39 Stat., 579, chap. 
 417.) 
 
 Amendment to this provision was made by act 
 of July 11, 1919 (41 Stat., 139), which pro- 
 vided for selection boards being convened 
 ' ' at such times as the Secretary of the Navy 
 may direct," and further provided that 
 "the boards shall recommend for promo- 
 tion such number of officers as may be neces- 
 sary to fill vacancies then existing and 
 which may occur during the next period 
 of time." 
 
 Additional number officers continue to be 
 additional numbers after promotion by selec- 
 tion. This provision \Y\th. reference to engi- 
 neer officers indicates that it was not the piu"- 
 pose of Congress to abolish additional number 
 officers with reference to higher grades in the 
 Une filled by selection. Prior laws relating to 
 additional number officers are not repealed by 
 the act of August 29, 1916, nor do such officers 
 become regular numbers on promotion. (File 
 28687-11, Jan. 2, 1917.) 
 
 As to selection of staff officers, see act of Julv 1, 
 
 1918 (40 Stat., 718). 
 As to form of board's recommendation, see below 
 (39 Stat., 579). 
 Additional number officers, if recom- 
 mended for promotion, will not become regular 
 numbers when promoted, but mil continue to 
 be additional numbers in their grade; they are 
 therefore in addition to the number of vacancies 
 as furnished the selection board. (File 
 28687-11, Jan. 2, 1917.) 
 
 [1916, Aug. 29. Annual appointment of captains limited. Repealed.] 
 
 This provision read as follows: 
 ■'That the increase in the number of captains 
 herein authorized shall be made at the rate of 
 not more than ten captains in any one year." 
 
 (39 Stat., 579, chap. 417.) 
 
 It was expressly repealed by act of May 
 22, 1917, section 14 (40 Stat., 87). 
 
 1432 
 
Commissioned Personnel. 
 
 Ft. 3. STATUTES AT LARGE. 
 
 Aug. 29, 1916. 
 
 [1916, Aug. 29. Recommendation of selection board to be in writing, etc. ; 
 report as to engineer officers.] The report of the board shall be in writing 
 signed by all of the members and shall certify that the board has carefully con- 
 sidered the case of every officer eligible for consideration under the provisions 
 of this law, and that in the opinion of at least six of the members, the officers 
 therein recommended are the best fitted of all those under consideration to 
 assume the duties of the next higher grade, except that the recommendation of 
 the board in the case of officers of the former Engineer Corps who are restricted 
 by law to the performance of shore duty only, and in that of officers "who may 
 hereafter be assigned to engineering duty only, shall be based upon their com- 
 parative fitness for the duties prescribed for them by law. — (39 Stat., 579, 
 chap. 417.) 
 
 See above (39 Stat., 578-579), as to engineer 
 officers; and see below (39 Stat., 584), as 
 to promotion of officers commissioned for 
 aeronautic duty only. 
 
 See act of July 1, 1918 (40 Stat., 718), as to 
 selection of staff officers. 
 
 [1916, Aug. 29. President's action; reconvening of selection board.] The 
 report of the board shall be submitted to the President for approval or disap- 
 proval. In case any officer or officers recommended by the board are not 
 acceptable to the President, the board shall be informed of the name of such 
 officer or officers, and shall recommend a number of officers equal to the number 
 of those found not acceptable to the President and if necessary shall be recon- 
 vened for this purpose. — (39 Stat., 579, chap. 417.) 
 
 As to action by the President in the cases of 
 retiring and promotion boards, see notes to 
 sections 1452 and 1502, Revised Statutes. 
 
 See note to Constitution, Article II, section 2, 
 clause 2, as to President's power with re- 
 spect to appointment and promotion of 
 officers; see also notes to sections 1458 and 
 1480, Ile\'ised Statutes, on the same sub- 
 ject. 
 
 [1916, Aug. 29. President's approval of selection board's report; profes- 
 sional and physical examinations required ; rank on promotion or retirement.] 
 When the report of the board shall have been approved by the President, the 
 officers recommended therein shall be deemed eligible for selection, and if 
 promoted shall tal^e rank with one another in accordance with their seniority 
 in the grade from which promoted: Provided, That any officers so selected 
 shall prior to promotion be subject in all respects to the examinations prescribed 
 by law for officers promoted by seniority, and in case of failure to pass the 
 required professional examination such officer shall thereafter be ineligible for 
 selection and promotion. And should any such officer fail to pass the requii'ed 
 physical examination he shall not be considered, in the event of retirement, 
 entitled to the rank of the next higher grade. — (39 Stat., 579, chap. 417.) 
 
 Examinations for promotion: see sections 1493- 
 
 1505, Re\Tsed Statutes. 
 See act of March 4, 1911 (36 Stat., 1267), which 
 
 was modified by this provision as to the 
 
 rank of officers retired after failure to pass 
 
 the physical examination for promotion. 
 
 By act of July 11, 1919 (41 Stat., 147), this 
 
 restriction on retired rank was made in- 
 applicable to any captain then on the 
 
 active list who had been wounded in line 
 
 of duty. (See note to sec. 1494, R. S.) 
 
 Eligibility for selection; when termi- 
 nated. — Under the act of August 29, 1916, an 
 officer's eligibility for selection continued until 
 the end of the calendar year following the favor- 
 able recommendation of the board. Under the 
 amendment of May 22, 1917 (40 Stat., 86), 
 which authorized the Secretary to convene 
 selection boards "at such times as the exigen- 
 cies of the service may require," officers re- 
 commended by a board so convened continued 
 eligible only until the next board was con. 
 
 1433 
 
Aug. 29, 1916. 
 
 PL 3. STATUTES AT LARGE. Commissioned Persomi«l. 
 
 voned. If no vacancies occurred to which they 
 could be ])roniotcd durinfi; the calendar year, 
 in the one case, or, in the other, during the 
 period until the next selection board was con- 
 vened, their elip:ibility for i)romotion ceased, 
 unless they were again selected; and their 
 names, 11 6ther\\ise eligible for consideration, 
 must be submitted to the next selection 
 board. (File 28687-22, June 20, 1917; 28687- 
 22 : 1, Dec. 27, 1918.) 
 
 Examinations after selection. — An officer 
 examined professionally and physically prior 
 
 to being recommended for promotion by the 
 selection board, must be reexamined after selec- 
 tion for promotion. (File 26521-337, June 23, 
 1919, citing 26260-3630 : 2.) 
 
 The requirements of the selection law, in- 
 cluding examinations prior to promotion, were 
 not applicable to temporary promotions author- 
 ized by act of May 22, 1917; but the President 
 had power to make regulations requiring such 
 examinations before promotion if he deemed 
 such action advisable. (File 28687-22, June 
 14, 1917.) 
 
 [1916, Aug. 29. Sea service and age requirements for promotion; excep- 
 tions.] On and after June thirtieth, nineteen hundred and twenty, no captain 
 commander, or lieutenant commander shall be promoted unless he has had 
 not less than two years' actual sea service on seagoing ships in the grade in 
 which serving or who is more than fifty-six, fifty, or forty-five years of age, 
 respectively: Provided, That in exceptional cases where officers are specifically 
 designated during war or national emergency declared by the President by the 
 Secretary of the Navy as performing, or as having performed, such highly 
 important duties on shore that their services can not be or could not have 
 been spared from such assignment without serious prejudice to the successful 
 prosecution of the war, the qualification of sea service in the cases of those 
 officers so specifically designated shall not apply while the United States is at 
 war, or during a national emergency declared by the President, or within two 
 and one-half years subsequent to the ending of such war or national emergency: 
 Provided, That the qualification of sea service shall not apply to officers 
 restricted to the performance of engineering duty only. — (39 Stat., 579, chap. 
 417; 40 Stat., 717-718, chap. 114.) 
 
 This paragraph was expressly amended to read 
 as above by act of July 1, 1918 (40 Stat., 
 717-718), which inserted therein the first 
 proviso above set forth, relating to shore 
 duty in time of war or emergency. (See 
 Joint Res., Mar. 3, 1921, 41 Stat., 1359, as to 
 constructive termination of war with Ger- 
 many and Austria-Hungary.) 
 
 By act of July 11, 1919 (41 Stat., 140), the "age 
 and grade " requirement prescribed by tMs 
 act "in the rank of commander" was 
 ' ' extended from June 30, 1920, to June 30, 
 1921;" and by act of June 4, 1920, section 
 10 (41 Stat., 837), "the age limits for pro- 
 motion by selection" were "deferred until 
 June 30, 1921 " in the cases of officers "who 
 mav request such deferment." 
 
 By act' of July 11, 1919 (41 Stat., 140), aU 
 '• statutory requirements other than profes- 
 sional and physical examinations," with 
 respect to promotion by selection were sus- 
 pended in certain cases until July 1, 1920; 
 
 [1916, Aug. 29. Retirement of oflacers ineligible for selection.] That captains, 
 commanders, and lieutenant commanders who become ineligible for promotion 
 on account of age shall be retired on a percentage of pay equal to two and one- 
 half per centum of their shore-duty pay for each year of service: Provided 
 further. That the total retired pay shall not exceed seventy-five per centum of 
 the shore-duty pay they were entitled to receive while on the active list. — (39 
 Stat., 579, chap. 417.) 
 
 1434 
 
 and by act of June 4, 1920, section 5, (41 
 Stat., 836), all such requirements "other 
 than age and professional and physical 
 examination" were similarly suspended 
 in certain cases until June 30, 1923. 
 
 See other special provisions of this act, set forth 
 above, with respect to promotion by selec- 
 tion of engineer officers; and see special 
 provisions of this act (39 Stat., 584), set 
 forth below, as to promotion of officers 
 commissioned for aeronautic duty only. 
 
 By act of June 4, 1920, section 5 (41 Stat.,*836)^ 
 the requirements of this provision as to age. 
 limits for promotion were suspended in the 
 cases of officers appointed to the line from 
 sources other than the Naval Academy, as. 
 authorized by that act, until they have 
 rendered 10 years' service in the grade oi 
 lieutenant commander, six years in the 
 grade of commander or eight vears in the 
 grade of captain. 
 
Engineering Duty. Pt. 3. STATUTES AT LARGE. Aug. 29, 1916. 
 
 See sections 1443-1465, and 1588, Revised 1 See acts of March 3, 1883 (22 Stat., 473), and 
 Statutes, for general provisions relating to June 10, 1896 (29 Stat., 361), and note to 
 
 retirement. section 1443, Revised Statutes, as to service 
 
 credited for retirement, etc. 
 
 [1916, Aug. 29. Retiring age, 64 years.] Except as herein otherwise provided, 
 hereafter the age for retirement of all officers of the Navy shall be sixty-four 
 years instead of sixty-two years as now prescribed by law. — (39 Stat., 579, 
 chap. 417.) 
 
 See sections 1444, 1481, and 1588, Revised Statutes. 
 
 [1916, Aug. 29. Rank and pay not reduced.] Nothing contained in this Act 
 shall be construed to reduce the rank, pay, or allowances of any officer of the 
 Navy or Marine Corps as now provided by law. — (39 Stat., 579, chap. 417.) 
 
 OFFICERS FOR ENGINEERING DUTY ONLY. 
 
 [1916, Aug. 29. Detail of line officers for engineering duty.] Officers of the 
 line of the Navy not below the grade of lieutenant may, upon application, and 
 with the approval of the Secretary of the Navy, be assigned to engineering duty 
 only, and that when so assigned and until they reach the grade of commander, 
 they shall perform duty as prescribed in section four of the Personnel Act 
 approved IVlarch third, eighteen hundred and ninety-nine, and thereafter shore 
 duty only as now prescribed for officers transferred to the line from the former 
 engineer corps, except that commanders may be assigned to duty as fleet and 
 squadron engineers: Provided, That when so assigned they shall retain their 
 place ^vith respect to other line officers in the grades they now or may hereafter 
 occupy, and also the right to succession to command on shore in accordance 
 with their seniority, and shall be promoted as vacancies occur subject to physi- 
 cal examination and to such examination in engineering as the Secretary of the 
 Navy may prescribe: Provided further, That the number of officers so assigned 
 in any one year shall be in accordance with the requirements of the service as 
 determined by the Secretary of the Navy. — (39 Stat., 580, chap. 417.) 
 
 See acts of March 3, 1899, section 4 (30 Stat., 
 1005), February 16, 1914, section 21 (38 
 Stat., 283), and March 3, 1915 (38 Stat., 930); 
 see also notes to sections 1390-1394 Re- 
 \'ised Statutes. 
 
 See pro\dsions of this act (39 Stat., 578-579), as 
 to promotion by selection of officers 
 assigned to engineering duty only. 
 
 [1916, Aug. 29. Acting ensigns for engineering duty ; appointment and pro- 
 motion.] That the Secretary of the Navy is hereby authorized to appoint 
 annually in the line of the Navy for a period of ten years follo^sdng the passage 
 of this Act, in the order of merit determined by such competitive examination 
 as he may prescribe, thirty acting ensigns for the performance of engineering 
 duties only. Persons so appointed must have received a degree of mechanical 
 or electrical engineer from a college or university of high standing or be gradu- 
 ates of technical schools approved by the Secretary of the Navy, must have been 
 found physically qualified by a board of medical officers of the Navy for the 
 performance of the duties required, and must at the time of appointment be 
 not less than twenty nor more than twenty-six years of age. Such appoint- 
 ments shall be for a probationary period of three years, and may be revoked at 
 any time by the Secretary of the Navy. 
 
 54641°— 22 91 1435 
 
Aug. 29, 1916. 
 
 Pt.S. STA TIJTES A T LARGE. 
 
 Engineering Duty. 
 
 See section 1410, Revised Statutes, and note 
 thereto, as to status of "acting"' officers. 
 
 Such acting ensigns shall, upon the completion of the probationary period 
 of three years, of which two years shall have been spent on board cruising vessels 
 and one year pursuing a course of instruction at the Naval Academy prescribed 
 by the Secretary of the Navy, be commissioned in the grade of lieutenant of 
 the junior grade after satisfactorily passing such examination as may be pre- 
 scribed by the Secretary of the Navy, and having been recommended for pro- 
 motion by the examining board and found physically qualified by a board of 
 medical officers of the Navy. 
 
 Such officers shall thereafter be required to perform engineering duties only, 
 and shall be eligible for advancement to the higher grades in the manner herein 
 provided for line officers assigned to engineering duty only. — (39 Stat., 580, 
 chap. 417.) 
 
 See note above under this act (39 Stat., 576), 
 as to number of commissioned officers not 
 including acting ensigns. 
 
 [1916, Aug. 29. Absence due to misconduct.] Hereafter no officer or enhsted 
 man in the Navy or Marine Corps in active service who shall be absent from 
 duty on account of injury, sickness or disease resulting from his own intem- 
 perate use of drugs or alcoholic liquors, or other misconduct, shall receive pay 
 for the period of such absence, the time so absent and the cause thereof to be 
 ascertained under such procedure and regulations as may be prescribed 
 by the Secretary of the Navy: Provided, That an erdistment shall not be 
 regarded as complete until the enlisted man shaU have made good any time 
 in excess of one day lost on account of injury, sickness or disease resulting 
 from his own intemperate use of drugs or alcoholic liquors, or other miscon- 
 duct.— (39 Stat., 580, chap. 417; 40 Stat., 717, chap. 114.) 
 
 Revised vStatutes, article 8, under "Making 
 good time lost by absence;" note to Con- 
 stitution, Article I, section 9, clause 3, as 
 to bills of attainder; and notes to sections 
 1418 and 1608, Revised Statutes, as to de- 
 tention of men after expii-ation of enlist- 
 ment. 
 
 This paragraph was expressly amended to read 
 as above by act of July 1, 1918 (40 Stat., 
 717), which inserted therein, in two places, 
 the word "injury" followed by a comma. 
 
 See note to section 1556, Revised Statutes, 
 under "40. Absence from duty;" note to 
 section 1569, Revised Statutes, under "13. 
 Forfeiture of pay;" note to section 1624, 
 
 [1916, Aug. 29. Furloughs in lieu of discharge.] The Secretary of the Navy 
 is hereby authorized to grant furlough without pay to enlisted men for a period 
 covering the unexpired portion of their enlistment: Provided, That such fur- 
 lough be granted under the same conditions and in lieu of discharge by purchase 
 or by special order of the department. Enlisted men so furloughed shall be 
 subject to recall in time of war or national emergency to complete the unex- 
 pired portion of their enlistment, and shall be in addition to the authorized 
 number of enlisted men of the Navy. — (39 Stat., 580-581, chap. 417.) 
 
 As to discharge by purchase, see act of March 3, 
 1893 (27 Stat., 717); as to refund of enlist- 
 ment bounty by men discharged within 
 six months of enlistment, see act of June 
 29, 1906 (34 Stat., 556); and as to refund on 
 
 discharge within 12 months of enlistment 
 in certain cases, see act of March 2, 1907 
 (34 Stat., 1176). 
 See note to section 1417, Revised Statutes, imder 
 "Enlisted men furloughed without pay." 
 
 [1916, Aug. 29. Red Cross, detail of medical officers to.] Hereafter the 
 authorized number of surgeons in the United States Navy be, and it is hereby, 
 increased by one; and that hereafter the Secretary of the Navy be, and he is 
 
 1436 
 
Flying Corps. 
 
 Pt. 3. STATUTES AT LARGE. 
 
 Aug. 29, 1916. 
 
 hereby, authorized to detail one or more officers of the Medical Corps of the 
 United States Navy for duty with the Mihtary Relief Division of the American 
 National Red Cross. — (39 Stat., 581, chap. 417.) 
 
 See note to section T368, Revised Statutes, as to See act of April 24, 1912 (37 Stat., 90-91), and 
 authorized number of medical officers; Joint Resolution of May 8, 1914 (38 Stat., 
 
 and see provision of this act (39 Stat., 576), 771), relating to the Red Cross, 
 
 set forth above, as to number of commis- 
 sioned officers of the Staff Corps. 
 
 [1916, Aug. 29. Retired officer on duty with General Board.] 
 
 This provision read as follows: 
 "No officer who, after having commanded a 
 fleet in active commission, has been retired for 
 age and whom, in the judgmentof the Secretary 
 of the Na\-y, the public interests make it neces- 
 sary to retain for a time after said retii'ement and 
 who is performing active duty as chairman of 
 the executive committee of the General Board, 
 
 shall, for the period so retained, suffer any 
 reduction in the emoluments he was receiving 
 at the time of his retirement." (39 Stat., 581, 
 chap. 417.) 
 
 It has been fully executed, and is no 
 longer in force or effect. The officer to Avhom 
 it applied was Rear Admiral Charles J. Badger. 
 
 [1916, Aug. 29. Pay of retired officers on active duty.] That hereafter any 
 retired officer of the naval service who shall be detailed on active duty shall, 
 while so serving, receive the active duty pay and allowances of the grade, not 
 above that of lieutenant commander in the Navy or of major in the Marine 
 Corps, that he would have attained in due course of promotion if he had re- 
 mained on the active list for a period beyond the date or his retirement equal 
 to the total amount of time during which he has been detailed on active duty 
 since his retirement: Provided, That nothing herein shall be construed to 
 reduce the pay of any retired officer on active duty whose retired pay exceeds 
 the active duty pay and allowances for the grade of lieutenant commander. — 
 (39 Stat., 581, chap. 417.) 
 
 See note to section 1592, Revised Statutes, for other laws relating to pay of retired officers 
 on active duty. 
 
 [1916, Aug. 29. Pay and allowances of commissioned officers, active list.] 
 Hereafter all commissioned officers of the active list of the Navy shall receive 
 the same pay and allowances according to rank and length of service : Provided, 
 That this provision shall not be construed to reduce the pay and allowances of 
 commissioned warrant officers as herein authorized. — (39 Stat., 581, chap. 417.) 
 
 As to effect of this provision, see note to section As to pay of commissioned officers, see, gen- 
 1556, Revised Statutes, under "23. Chap- erally, note to section 1556, Revised Stat- 
 
 lains and acting chaplains." utes; as to allowances, see notes to sections 
 
 1487 and 1558, Re\'ised Statutes. 
 
 NAVAL FLYIXG CORPS. 
 
 [1916, Aug. 29. Composition of Flying Corps.] The Naval Flying Corps 
 shall be composed of one hundred and fifty officers and three hundred and 
 fifty enlisted men, detailed, appointed, commissioned, enhsted, and distributed 
 in the various grades, ranks, and ratings of the Navy and Marine Corps as 
 hereafter provided. The said number of officers, student flyers, and enlisted 
 men shall be in addition to the total number of officers and enlisted men 
 which is now or may hereafter be provided by law for the other branches of 
 the naval service. — (39 Stat., 582, chap. 417.) 
 
 1437 
 
Aug. 29, 1916. 
 
 Ft. 3. STATUTES AT LARGE. 
 
 Flying Corps. 
 
 See art of June 5, 1<»20 (41 Stat., 9.54), as to 
 distributiou of Army and Navy aviation 
 control. 
 
 See below (.39 Stat., 592), as to Naval Reserve 
 Flying Corps. 
 
 [1916, Aug. 29. Detail of officers to actual flying.] The number of ofRcers 
 detailed to duty in aircraft involving actual flying in any one year shall be in 
 accordance with the requirements of the Air Service as determined by the 
 Secretary of the Navy: Provided, That the officers so detailed from the line of 
 the Navy and from the Marine Corps shall not exceed the total number herein 
 prescribed for the Naval Flying Corps: Provided further, That the proportion 
 of line ofRcers of the Navy and of the Marine Corps thus detailed shall be the 
 same as the proportion established for the regular services: And provided 
 further, That the student flyers hereinafter provided for shall be in addition to 
 the officers and enlisted men comprising the Naval Flying Corps. — (39 Stat., 
 582-583, chap. 417.) 
 
 [1916, Aug. 29. Pay and allowances. Flying Corps.] The ofRcers detailed 
 and the enlisted men of the Naval Flying Corps shall receive the same pay and 
 allowances that are now provided by law for ofRcers and enlisted men of the 
 same grade or rank and rating in the Navy and Marine Corps detailed to duty 
 with aircraft involving actual flying. — (39 Stat., 583, chap. 417.) 
 
 By act of July 1, 1918 (40 Stat., 718), increased 
 allowances for aviation duty were pro- 
 hibited. 
 See act of March 3, 1915 (38 Stat., 939), and 
 note to section 1556, Revised Statutes, 
 under "38. Additional pav for special 
 duty." 
 Number and pay of ofl&cers detailed to 
 actual flying. — Under the act of August 29, 
 1916, in addition to the number of officers in 
 the regular Naval Flj-ing Corps, the Secretary 
 of the Navy is authorized to detail for duty 
 
 involving actual flying in aircraft, either as stu- 
 dent aviators, student airmen, or qualified naval 
 aviators, such number of naval officers, not in 
 excess of the number prescribed in that act 
 for the regular Flying Corps, as he shall de- 
 termine the needs of the air service require; 
 and while so detailed such officers are entitled 
 to 50 per cent or 35 per cent increase of pay and 
 allowances, according as they have or have not 
 qualified as naval aviators. (23 Comp. Dec, 
 583. But see act of July 1, 1918, above noted, 
 as to increase of allowances.) 
 
 [1916, Aug. 29. Acting ensigns and acting second lieutenants for aeronautic 
 duty.] 
 
 These paragraphs read as foUows: 
 "The vSecretary of the Navy is hereby 
 authorized to appoint annually in the line of 
 the Navy and the Marine Corps for a period of 
 two years follomng the passage of this Act, in 
 order of merit as determined by such competi- 
 tive examinations as he may prescribe, fifteen 
 acting ensigns or acting second lieutenants for 
 the jjerformauce of aeronautic duties only. 
 Persons so appointed must be citizens of the 
 United States, and may be appointed from 
 warrant officers or enlisted men of the naval 
 service or from civil life, and must, at the 
 time of appointment, be not less than eighteen 
 or more than twenty-four years of age: Provided, 
 That no person shall be so api^ointed until he 
 has been found physically qualified by a 
 board of medical officers of the Navy for the 
 performance of the duties required: Provided 
 further, That the number of such appointments 
 to the line of tlie Navy and of the Marine Corps 
 shall be in the proportion decided for the 
 regular services. Such appointments shall be 
 for a probationary period of three yeare and may 
 be revoked at any time by the Secretary of 
 the Navy. 
 
 "Such acting ensigns and acting second lieu- 
 tenants shall be detailed to duty in the Naval 
 Flying Corps in aircraft involving actual flying. 
 
 "Such acting ensigns of the Navy and acting 
 second lieutenants of the Marine Corps shall, 
 upon completion of the probationary period of 
 three years, be appointed acting lieutenants 
 of the junior grade, or acting first lieutenants, 
 respectively, by the Secretary of the Navy 
 for the performance of aeronautic duties only, 
 after saiisfactorily passing such examinations 
 as he may prescribe, and after ha^dng been 
 recommended for promotion by the examining 
 board and found physically qualified by a 
 board of medical officers of the Navy. Such 
 appointments shall be for a probationary 
 period of four years and may be revoked at any 
 time by the Secretary of the Navy. 
 
 "Such acting lieutenants (junior grade) and 
 acting first lieutenants may elect to qualify for 
 aeronautic duty only or to qualify for all the 
 duties of officers of the same grade in the Navy 
 and in the Marine Corps, respectively. ThoSe 
 officers who elect to qualifj' for aeronautic 
 duty only shall be detailed to duty in the 
 Naval Flying Corps involving actual flying 
 
 1438 
 
Flying Corps. 
 
 PL S. STATUTES A T LARGE. 
 
 Aug. 29, 1916. 
 
 in aircraft. Those officers who elect to qualify 
 for the regular duties of their grade shall be 
 detailed to duty in the regular service for at 
 least two years to allow them to prepare for 
 such qualification. 
 
 "Such acting lieutenants (junior grade) and 
 acting first lieutenants who have elected to 
 qualify for aeronautic duty only shall, upon 
 completion of the probationary period of four 
 years, be commissioned in the grade of lieu- 
 tenant of the line of the Navy or captain of 
 the Marine Corps for aeronautic duties only, 
 after satisfactorily passing such competitive 
 examination as may be prescribed by the 
 Secretary of the Navy to determine their 
 moral, physical, and professional qualifica- 
 tions for such commissions and the order of 
 rank in which they shall be commissioned. 
 Such lieutenants for aeronautic duty only 
 shall be borne on the list as extra numbers, 
 taking rank with and next after officers of the 
 same date of commission. (39 Stat., 583, 
 chap. 417.) 
 
 "Such acting lieutenants (junior grade) 
 and acting first lieutenants who have elected 
 to qualify for the regular duties of the line of 
 the Navy and of the Marine Corps, respectively, 
 shall, upon completion of the probationary 
 period of four years, two years of which shall 
 have been on such regular duties, be commis- 
 sioned in the grade of the line of the Navy or 
 Marine Corps according to his length of service, 
 after passing satisfactorily such competitive 
 examinations as may be prescribed by the 
 Secretary of the Navy to determine their 
 moral, physical, and professional qualifications 
 for such commissions and to determine the 
 
 order of rank in which they shall be commis- 
 sioned. Such officers of the line of the Navy 
 and Marine Corps will be borne upon the lists 
 of their respective corps as extra numbers, 
 taking rank with and next after officers of the 
 regular services of the same date of commissions. 
 
 "Acting lieutenants (junior grade) of the 
 line of the Navy for aeronautic duties only 
 and acting first lieutenants of the Marine Corps 
 for aeronautic duty only who have completed 
 the probationary period of four years may, 
 upon examination for commissions to the next 
 higher grade, if recommended by the board of 
 examination, be transferred to the Naval 
 Reserve Flying Corps and commissioned in 
 the same grade or the next higher grade as may 
 be recommended in accordance with their 
 qualifications as determined by the examina- 
 tion: Provided, That at any time during such 
 probationary period any such officer can, upon 
 his own request, if his record warrants it, be 
 transferred to the Naval Reserve Flying Corps 
 and commissioned in the acting grade he then 
 holds. Any officer of the Naval Flying Corps 
 holding an appointment of student flyer or 
 acting ensign, second lieutenant, lieutenant 
 (junior grade), or first lieutenant, who, upon 
 examination for promotion, is found not quali- 
 fied shall, if not recommended by the examin- 
 ing board for transfer to the Naval Reserve 
 Flying Corps, be honorably discharged from 
 the naval ser\-ice." (39 Stat., 584, chap. 417.) 
 
 The above paragraphs were rendered 
 obsolete two years after the passage of this 
 act, o^\ing to the fact that no appointments 
 were made of acting ensigns or acting second 
 lieutenants as therein authorized. 
 
 [1916, Aug. 29. Promotion of officers commissioned for aeronautic duty- 
 only.] Officers commissioned for aeronautic duty only shall be eligible for 
 advancement to the higher grades, not above captain in the Navy or colonel 
 in the Marine Corps, in the same manner as other officers whose employment 
 is not so restricted, except that they shall be eligible to promotion without 
 restriction as to sea duty, and their professional examinations shall be restricted 
 to the duty to which personally assigned: Provided, That any such officer 
 must serve at least three years in any grade before being eligible to promotion 
 to the next higher grade. — (39 Stat., 584, chap. 417.) 
 
 [1916, Aug. 29. Detail from other branches as student aviators or airmen; 
 pay.] Nothing in this Act shall be so construed as to prevent the detail of 
 officers and enlisted men of other branches of the Navy as student aviators or 
 student airmen in such numbers as the needs of the service may require. 
 
 Such officers and enlisted men, while detailed as student aviators and 
 student airmen involving actually flying in aircraft, shall receive the same 
 pay and allowances that are now provided by law for officers and enlisted 
 men of the same grade or rank and rating in the Navy detailed for duty with 
 aircraft.— (39 Stat., 584, chap. 417.) 
 
 See note above (39 Stat., 583), as to pay and allowances for aviation duty. 
 
 [1916, Aug. 29. Student flyers, appointment, instruction, promotion, etc.] 
 
 These paragraphs read as follows: 
 ' ' The Secretary of the Navy is hereby author- 
 ized to appoint annually for a period of four 
 
 years, from enlisted men of the naval service, 
 or from citizens of the United States in civil 
 life, not to exceed thirty student flyers for in- 
 
 1439 
 
Aug. 29, 1916. 
 
 PL S. STATUTES A T LARGE. 
 
 Flying Corps. 
 
 Btrurtion and traininu; in aeronautics who shall 
 receive the same ])ay and allowances as mid- 
 shipmen at the United Stales Naval Academy: 
 Provided, That persons so appointed must, at 
 the time of ai)j)ointment, l)e not less than seven- 
 teen or more than twenty-one years of age: 
 Provided furllur, That no person shall be ap- 
 pointed a student flyer until he shall have qual- 
 ified therefor by such examination as may be 
 prescribed bv the Secretarv of the Navy. (39 
 Stat., 584, chap. 417.) 
 
 "The appointment of student flyers shall con- 
 tinue in force for two years, unless sooner re- 
 voked by the Secretary of the Navy, in his 
 discretion, and at the end of such period stu- 
 dent flyers shall be examined for qualification as 
 qualified aviators: Provided, That if such stu- 
 dent flyers are not qualified, their appointment 
 \W11 be revoked, or, if recommended by the 
 examining board, they shall be transferred to 
 the Naval Reserve Flying Corps and commis- 
 sioned as ensigns therein. 
 
 "Student flyers shall, after receiving a cer- 
 tificate of qualification as an aviator for actual 
 fljing in aiixraft, rank with midshipmen and 
 shall receive the same pay and allowances as 
 midshipmen, plus fifty per centum thereof: 
 Provided, That student flyers who have qual- 
 ified as a\-iators under the pro\isions of this Act 
 shall be commissioned acting ensigns for aero- 
 
 nautic duties only, after three years' service: 
 Provided further, That they shall have been 
 examined by a board of officers of the Naval 
 Fl.\ing Corps to determine by a competitive 
 examination prescribed by the Secretary of the 
 Navy their moral, physical, and profes.sional 
 fitness and the order of rank in which they shall 
 be commissioned: And provided further , That 
 any student flyer qualified as an a\T.ator may 
 at any time, in the discretion of the Secretary of 
 the Navy, if his record warrants it, at his own 
 request, be transferred to the Naval Reserve 
 Flying Corps and be commissioned as ensign 
 therein: And -provided further, That student 
 flyers not considered qualified for commissions 
 as acting ensigns for aeronautic duties only may, 
 upon recommendation of the examining board, 
 be transferred to the Naval Reserve Fljdng 
 Corps and be commissioned as ensigns therein. 
 
 "The Secretary of the Na\y is hereby author- 
 ized to estal>lish aeronautic schools for the in- 
 struction and training of student flyers and pre- 
 scribe the course of instruction and qualifica- 
 tions for certificate of graduation as a qualified 
 aviator." (39 Stat., 585, chap. 417.) 
 
 The above paragraphs were rendered 
 obsolete four years after the date of this act, 
 owing to the fact that no appointments were 
 made of student flyers for instruction and 
 training as therein authorized. 
 
 [1916, Aug 29. Temporary details for aircraft duty.] Nothing in this or 
 any other Act shall be so construed as to prevent the temporary detail of 
 officers and enlisted men of any branch of the Navy for duty with aircraft. — 
 (39 Stat., 585, chap. 417.) 
 
 [1916, Aug. 29. Aviation accidents, payment of gratuity and pension.] 
 
 This paragraph read as follows: 
 " In the event of the death of an officer or en- 
 listed man or student flyer of the Naval Fljing 
 Corps from wounds or disease, the result of an 
 aviation accident, not the result of his own mis- 
 conduct, received while engaged in actual 
 fljdngin or in handling aiirraft, the gratuity tobe 
 paid under the provisions of the Act approved 
 August twenty-second, nineteen hundred and 
 twelve, entitled 'An Act making appropriations 
 for the naval service for the fiscal year ending 
 June thirtieth, nineteen hundred and thirteen, 
 and for other purposes,' shall be an amount 
 equal to one year's pay at the rate received by 
 such officer or enlisted man or student flyer at 
 the time of the accident resulting in his death. 
 In all cases where an oflicer or enlisted man or 
 student flyer of the Navy or Marine Corps dies, 
 or where a student flyer or an enlisted man of 
 the Navy or Marine Corps is disabled by reason 
 
 of any injury received or disease contracted in 
 line of duty, the result of an a\T.ation accident, 
 received while employed in actual fljing in or 
 handling aircraft, the amount of pension al- 
 lowed shall be double that authorized to be 
 paid should death or the disabiUty have oc- 
 curred by reason of an injury received or dis- 
 ease contracted in line of duty not the result of 
 an aviation accident." (39 Stat., 585, chap. 
 417.) 
 
 It was repealed, together with the provis- 
 ions of the act of August 22, 1912 (37 Stat., 329), 
 referred to herein, by act of October 6, 1917, 
 section 312 (40 Stat., 408), which also repealed 
 a provision on the same subject in the act of 
 March 3, 1915 (38 Stat., 939-940). (See 31 Op. 
 Attv. Gen., 205.) 
 
 By act of June 4, 1920 (41 Stat., 824), pro- 
 vision is made for payment in cases of death of 
 persons in the naval service. 
 
 [1916, Aug. 29. Student flyers and acting officers, laws applicable to.] 
 
 This paragraph read as follow^s: 
 
 "Student flyers and the acting ensigns and 
 acting lieutenants (junior grade) and acting 
 second and first lieutenants for aeronautic du- 
 ties only provided for herein shall be subject 
 to the laws and regulations and orders for the 
 government of the Navy, but shall not be en- 
 
 [1916, Aug. 29. Ratings of enlisted men, Flying Corps.] The enlisted 
 personnel of the Naval Flying Corps shall be distributed by the Secretary of 
 
 titled to retirement or retired pay." (39 Stat., 
 585, chap. 417.) 
 
 It was rendered obsolete by the fact that 
 no appointments of student flyers or acting 
 ofiicers were made as authorized by this act. 
 (See above, 39 Stat., 583, 584, and 585.) 
 
 1440 
 
Naval Courts. 
 
 Pi. 3. STATUTES AT LARGE. 
 
 Aug. 29, 1916. 
 
 tlie Navy in the various ratings as now obtain in the Navy in so far as such 
 ratings are applicable to duties co^inected with aircraft. — (39 Stat., 585-586, 
 chap. 417.) 
 
 See note to section 1569, Revised Statutes, as 
 to enlisted ratings in the Navy; and note 
 
 to section 1608, Revised Statutes, as to 
 enlisted ratings in the Marine Corps. 
 
 [1916, Aug. 29. Enlisted men transferred to Flying Corps.] 
 
 corps: Provided, That the niunber so trans- 
 ferred shall not exceed one-half the total num- 
 ber of enlisted men allowed by this Act." 
 (39 Stat., 586, chap. 417.) 
 
 It expired by limitation two years after 
 approval of this act. 
 
 This paragraph read as follows: 
 
 ' ' Within the first two years after the approval 
 of this Act enlisted men may be transferred 
 from other branches of the Naval Service to 
 the Naval Flying Corps, under regulations es- 
 tablished by the Secretary of the Navy govern- 
 ing such transfer and the qualifications for this 
 
 [1916, Aug. 29. Term of enlistment, etc., Flying Corps; regulations.] 
 The Secretary of the Navy shall establish regulations governing the term of 
 enlistment, the qualifications, and advancement of the enlisted men of the 
 Flying Corps.— (39 Stat., 586, chap. 417.) 
 
 See note to section 1418, Revised Statutes, as 
 to term of enlistment in the Navy; and see 
 
 notes to sections 161 and 1547, Revised 
 Statutes, on general subject of regulations. 
 
 [1916, Aug. 29. Student flyers, appointments from enlisted men.] 
 
 This paragraph read as follows: 
 
 "Any enlisted man who passes satisfactorily 
 the prescribed examination and is recom- 
 mended by a board of officers may be appointed 
 a student flyer as herein provided." (39 
 Stat., 586, chap. 417.) 
 
 It was rendered obsolete by the fact that 
 no appointments of student flyers were made 
 from enlisted men as provided by this act. The 
 authority for such appointments expired four 
 years after the date of this act. (See above, 
 39 Stat., 584-585.) 
 
 ADMINISTRATION Or JUSTICE. 
 
 [1916, Aug. 29. Deck courts ; punishments by commanding officers.] Here- 
 after all officers of the Navy and Marine Corps who are authorized to order 
 either general or summary courts-martial may order deck courts upon enlisted 
 men under theu" command, and shall have the same authority to inflict minor 
 punishments as is conferred by law upon the commander of a naval vessel. — 
 (39 Stat., 586, chap. 417.) 
 
 See act of February 16, 1909 (35 Stat., 621), 
 establishing deck courts, and which was 
 amended by this paragraph; see provi- 
 sions of this act, set forth below, and notes 
 to section 1624, Revised Statutes, articles 
 
 26 and 38, as to summary and general 
 courts-martial; see note to section 1624, 
 Revised Statutes, articles 24 and 25, as to 
 punishments by commanding officers. 
 
 [1916, Aug. 29. Summary courts-martial, by whom convened; deck courts 
 and minor punishments at naval hospitals.] Summary courts-martial may be 
 ordered upon enlisted men in the naval service under his command by the com- 
 manding officer of any brigade, regiment, or separate or detached battalion, or 
 other separate or detached command, and, when empowered by the Secretary 
 of the Navy, by the commanding ofiicer or officer in charge of any command 
 not specifically mentioned in the foregoing: Provided, That when so empowered 
 by the Secretary of the Navy to order summary courts-martial, the command- 
 ing officer of a naval hospital or hospital ship shall be empowered to order such 
 courts and deck courts, and inflict the punishments which the conmaander of a 
 naval vessel is authorized by law to inflict, upon all enlisted men of the naval 
 
 1441 
 
Statutes, as to command of hospital ships; 
 see also note to section 1529, Revised 
 Statutes. 
 
 Aug. 29, 1916. Pt. 3. STATUTES AT LARGE. Naval Courts. 
 
 service attached thereto, whether for duty or as patients. — (39 Stat., 586, 
 chap. 417.) 
 
 See note to section 1024, Revised Statutes, 
 article 26, as to summary courts-martial- 
 and see note to section 1488, Revised 
 
 [1916, Aug. 29. Execution of summary court-martial sentences.] No sen- 
 tence of a summary court-martial shall be carried into execution until the pro- 
 ceedings and sentence have been approved by the officer ordering the court, or 
 his successor in office, and by his immediate superior in command: Provided, 
 That if the officer ordering the court, or his successor in office, be the senior 
 officer present, such sentence may be earned into execution upon his approval 
 thereof.— (39 Stat., 586, chap. 417.) 
 
 See note to section 1624, Revised Statutes, article 32; and see act of February 10, 1909, 
 sections 9 and 17 (35 Stat., 621, 623). 
 
 [1916, Aug. 29. General courts-martial, by whom convened.] When em- 
 powered by the Secretary of the Navy, general courts-martial may be convened 
 by the commanding officer of a squadron, of a division, of a flotilla, or of a 
 larger naval force afloat, and of a brigade or larger force of the naval service on 
 shore beyond the continental limits of the United States: Provided, That in 
 time of war, if then so empowered by the Secretary of the Navy, general courts- 
 martial may be convened by the commandant of any navy yard or naval sta- 
 tion, and by the commanding officer of a brigade or larger force of the Navy or 
 Marine Corps on shore not attached to a navy yard or naval station. — (39 Stat., 
 586, chap. 417.) 
 
 See note to section 1624, Revised Statutes, article 38. 
 
 [1916, Aug. 29. Courts of inquiry, by whom convened.] Courts of inquiry 
 may be convened by any officer of the naval service authorized by law to con- 
 vene general courts-martial. — ^(39 Stat., 586, chap. 417.) 
 
 See note to section 1624, Revised Statutes, article 55. 
 
 [1916, Aug. 29. Marines embarked on naval vessels; power of officers.] 
 When a force of marines is embarked on a naval vessel, or vessels, as a separate 
 organization, not a part of the authorized complement thereof, the authority 
 and powers of the officers of such separate origanization of marines shall be the 
 same as though such organization were serving at a navy yard on shore, but 
 nothing herein shall be construed as impairing the paramount authority of the 
 commanding officer of any naval vessel over the vessel under his command and 
 all persons embarked thereon. — (39 Stat., 586, chap. 417.) 
 
 See sections 1616 and 1617, Revised Statutes, and notes thereto. 
 
 NAVAL RESERVE FORCE. 
 
 [1916, Aug. 29. Classes in Naval Reserve Force. There is hereby estab- 
 lished, under the Department of the Navy, a Naval Reserve Force, to consist 
 of six classes, designated as follows and as hereinafter described : 
 
 First. The Fleet Naval Reserve. 
 
 Second. The Naval Reserve. 
 
 Third. The Naval Auxiliary Reserve. 
 
 Fourth. The Naval Coast Defense Reserve. 
 
 1442 
 
Naval Reserve Force. 
 
 PL 3. STATUTES AT LARGE. 
 
 Aug. 29, 1916. 
 
 Fifth. The Volunteer Naval Reserve. 
 
 Sixth. Naval Reserve Flying Corps. — (39 Stat., 587, chap. 417.) 
 
 The National Naval Volunteers was abolished, 
 and the members thereof transferred to the 
 various classes of the Naval Reserve Force 
 and Marine Corps Reserve, bv act of July 
 1, 1918 (40 Stat., 708). 
 
 Mileage allowed naval reservists honorably 
 released from active duty: See act of June 
 3, 1910, section 126 (39 Stat., 217), as 
 amended and reenacted bv act of Feb- 
 ruary 28, 1919 (40 Stat., 1203). 
 
 [1916, Aug. 29. Members, citizenship; obligation assumed; naturalization.] 
 The Naval Reserve Force shall be composed of citizens of the United States 
 who, by enrolling under regulations prescribed by the Secretary of the Navy or 
 by transfer thereto as m this Act provided, obligate themselves to serve m the 
 Navy in time of war or during the existence of a national emergency, declared 
 by the President: Provided, That citizens of the msular possessions of the 
 United States may enroll in the Naval Auxiliary Reserve. Provided further^ 
 That such persons who are not citizens of the United States, but who have or 
 shall have declared then intention to become citizens of the United States, and 
 who are citizens of countries which are at peace with the United States, may 
 enroll in the Naval Reserve Force subject to the condition that they may be 
 discharged from such enrollment at any time within the discretion of the 
 Secretary of the Navy, and such persons who may, mider existing law, become 
 citizens of the United States, and who render honorable service in the Naval 
 Reserve Force in time of war for a period of not less than one year may become 
 citizens of the United States without proof of residence on shore and without 
 further requii'ement than proof of good moral character and certificate from 
 the Secretary of the Navy that such honorable service was actually rendered. — - 
 (39 Stat., 587, chap. 417; 40 Stat., 84, chap. 18.) 
 
 This paragraph was expressly amended to 
 read as above by act of May 22, 1917 (40 
 Stat., 84), which added thereto the words, 
 
 [1916, Aug. 29. Regulations, Naval Reserve Force.] The Secretary of the 
 Navy shall make all necessary and proper regulations not inconsistent with 
 law for the administration of the provisions of this Act which relate to the Naval 
 Reserve Force. — (39 Stat., 587, chap. 417.) 
 
 See notes to sections 161 and 1547, Revised Statutes, on the general subject of regulations. 
 
 [1916, Aug. 29. Active service during war, etc.] Members of the Naval 
 Reserve Force may be ordered into active service in the Navy by the President 
 in time of war or when, in his opinion, a national emergency exists. — (39 Stat., 
 587, chap. 417.) 
 
 "Provided further" to the end of the 
 paragraph as above set forth. 
 
 Active duty afloat in time of peace was au- 
 thorized by act of July 1, 1918 (40 Stat., 
 711). 
 
 Not to perform active duty on shore of a kind 
 ordinarily performed by ci\ilians. (Act 
 July 11, 1919, 41 Stat., 138.) 
 
 See below (39 Stat., 588), as to active service 
 
 during war, etc. 
 See act of June 4, 1920, section 2 (41 Stat., 
 
 834), as to active duty authorized in time 
 
 of peace to supply deficiencies in enlisted 
 
 strength of the Navy. 
 
 [1916, Aug. 29. Ranks and ratings; engineering duties, etc.] There shall 
 be allowed in the Naval Reserve Force the various ratings, grades, and ranks, 
 not above the rank of lieutenant commander, corresponding to those in the 
 Navy. Officers of the line may be appointed for deck or engineering duties, 
 as they may elect. — (39 Stat., 587, chap. 417.) 
 
 1443 
 
Aug. 29, 1916. 
 
 Pt. S. STATUTES AT LARGE. 
 
 Naval Reserve Force. 
 
 Promotion above the grade of lieutenant com- 
 mander in time of war was authorized bv 
 act of July 1, 1918 (40 Stat., 711). 
 
 Transfer to the Naval Reserve Fierce of meml>ers 
 of the National Naval Volunteers, in the 
 ranks held iiy them at that time, was 
 authorized hyact of July 1, 1918 (40 Stat., 
 708), wliich further authorized reenroll- 
 
 ment of members in the Naval Reserve 
 Force in the ranks held by them on ter- 
 mination of their last enrollment. 
 As to oflicers for engineering duty only, see 
 act of February 16, 1914, section 21 (.38 
 Stat., 289-290); see also act of March 3, 
 1915 (38 Stat., 930), and note thereto. 
 
 [1916, Aug. 29. Appointment of officers, how made; retainer pay, etc. 
 not reduced.] Members of the Naval Reserve Force appointed to commis- 
 sionecl grades shall be commissioned by the President alone, and members of 
 such force appointed to warrant grades shall be warranted by the Secretary of 
 the Navy: Provided, That officers so warranted or commissioned shall not be 
 deprived of the retainer pay, allowances, or gratuities to which they would 
 otherwise be entitled. — (39 Stat., 587, chap. 417.) 
 
 [1916, Aug. 29. Precedence of officers, Naval Reserve Force.] 
 
 This provision read as follows: 
 •'Olhcers of the Naval Reserve Force shall 
 rank with but after oflicers of corresponding 
 rank in the Navy." (39 Stat., 587, chap. 417.) 
 
 It was superseded by act of July 1, 1918 
 (40 Stat., 711), which contained other provisions 
 on the same subject. 
 
 [1916, Aug. 29. Term of enrollment; discharge on request.] Enrollment 
 and reenrollment shall be for terms of four years, but members shall in time of 
 peace, when no national emergency exists, be discharged upon their own re- 
 quest upon reimbursing the Government for any clothing gratuity that may 
 have been furnished them during their current enrollment. — (39 Stat., 587, 
 chap 417.) 
 
 See below (39 Stat., 589), as to refund of uni- 
 form gratuity when discharged without 
 compulsion. 
 
 Members to be disenroUed at age of 64 years, 
 except in time of war, etc. (Act July 1, 
 1918, 40 Stat., 711.) 
 
 See act of June 4, 1920 (41 Stat., 817), as to 
 enrollments for instruction at summer 
 Bchools for boys. 
 
 [1916, Aug. 29. Oath of allegiance.] Persons enrolling shall be required 
 to take the oath of allegiance to the United States. — (39 Stat., 587, chap. 417.) 
 
 See act of March 3, 1899, section 25 (30 Stat., 1009). 
 
 [1916, Aug. 29. Provisional grade on enrollment; instruction prior to 
 confirmation.] When first enrolled members of the Naval Reserve Force, 
 except those in the Fleet Naval Reserve, shall be given a provisional grade, 
 rank or rating in accordance with their qualifications determined by examina- 
 tion. They may thereafter, upon application, be assigned to active service in 
 the Navy for such periods of instruction and training as may enable them to 
 qualify for and be confirmed in such grade, rank or rating. — (39 Stat., 587, 
 chap. 417.) 
 
 Advancement to higher provisional 
 ranks. — WTien an enrolled member has been 
 given a pro\dsional rank, he may thereafter, 
 either with or without being confirmed in such 
 provisional rank, be given a higher provisional 
 rank without examination by the statutory 
 board of three naval officers of or above the 
 
 rank of lieutenant commander and the statu- 
 tory board of naval surgeons. Such assign- 
 ment of higher provisional rank is not a "pro- 
 motion' ' within the meaning of the law relating 
 to examinations. (31 Op. Atty. Gen., 173; 
 see below as to examinationa for appointment 
 and promotion.) 
 
 [1916, Aug. 29. Requirements for confirmation in grade.] No member 
 shall be confirmed in his provisional grade, rank or rating until he shall have 
 
 1444 
 
Naval Reserve Force. Pt. 3. STATUTES AT LARGE. Aug. 29, 1916. 
 
 performed the minimum amount of active service required for the class in 
 
 which he is enrolled, nor until he has duly qualified by examination for such 
 
 rank or rating under regulations prescribed by the Secretary of the Navy. — 
 
 (39 Stat., 587, chap 417.) 
 
 Duty performed in the Naval jVIilitia may be of the Naval Reserve Force. (Act June 4, 
 
 counted as active service for the main- 1920, 41 Stat., 818.) 
 
 tenance of efficiency required for members 
 
 [1916, Aug. 29. Examinations for appointment and promotion; former 
 officers and midshipmen.] No person shall be appointed or commissioned as 
 an officer in any rank in any class of the Naval Keserve Force, or promoted to 
 a higher rank therein, unless he shall have been examined and recommended 
 for such appointment, commission, or promotion by a board of three naval 
 officers not below the rank of lieutenant commander, nor until he shall have 
 been found physically qualified by a board of medical officers to perform the 
 duties required in time of war, except that former officers and midshipmen of 
 the Navy, who shall have left the service under honorable conditions and who 
 shall have enrolled in the Naval Reserve Force, may be appointed in the grade 
 and rank last held by them without examination other than the physical 
 examination above prescribed. — (39 Stat., 587-588, chap. 417.) 
 
 Promotion of officers below rank of lieutenant- 
 commander shall be in accordance with 
 regulations prescribed by Secretary of the 
 Navj'; above Ueutenant commander, shall 
 be by selection, in time of war. (Act 
 July i, 1918, 40 Stat., 711.) 
 "Appointment" and "promotion" con- 
 strued. — The assignment of a provisional 
 rank is not an 'appointment," and advance- 
 ment to a higher provisional rank is not a 
 "promotion" within the meaning of this 
 paragi-aph. (31 Op. Atty. Gen., 173.) 
 
 Former oflicer dismissed from Navy; 
 effect of pardon. — An officer of the Navy 
 who has been dismissed by sentence of court- 
 martial, and subsequently pardoned for the 
 offense for which dismissed, is not eligible for 
 reappointment to the Navy or to membership 
 in the Fleet Naval Reserve. (31 Op. Atty. 
 Gen., 225; see below, 39 Stat., 589, as to qualifi- 
 cations for Fleet Naval Reserve; and see note 
 to Constitution, Art. II, sec. 2, clause 1, and 
 note to sec. 1441, Revised Statutes, as to effect 
 of pardon.) 
 
 [1916, Aug. 29. Retainer pay, before confirmation in grade.] The retainer 
 pay of all members of the Naval Reserve Force, except the Volunteer Naval 
 Reserve, while enrolled in a provisional rank or rating, and until such time as 
 they shall have been confirmed in such rank or rating, shall be $12 per annum. 
 Thereafter, the retainer pay shall be that prescribed for members in the various 
 classes.— (39 Stat., 588, chap. 417.) 
 
 [1916, Aug. 29. Retainer pay while on active duty.] Retainer pay shall 
 be in addition to any pay to which a member may be entitled by reason of 
 active service. — (39 Stat., 588, chap. 417.) 
 
 No retainer pay in time of peace while on duty 
 for purposes other than training. (Act 
 July 1, 1918, 40 Stat., 711.) 
 
 See note to section 1556, Revised Statutes, 
 under "37. Naval Reserve Force," for laws 
 and decisions relating to retainer pay. 
 
 [1916, Aug. 29. Retainer pay; conditions of payment.] Retainer pay shall 
 
 only be paid to members of the Naval Reserve Force upon their making such 
 
 reports concerning their movements and occupations as may be required by 
 
 the Secretary of the Navy.— (39 Stat., 588, chap. 417.) 
 
 tions; and see act of June 4, 1920 (41 Stat., 
 824 and 837), for other provisions relating 
 to forfeiture of retainer pay. 
 
 See below (39 Stat., 590), as to forfeiture of 
 retainer pay in the Fleet Naval Reserve 
 upon failure to report for required inspec- 
 
 [1916, Aug. 29. Increased retainer pay on reenrollment.] Members of the 
 Naval Reserve Force who reenroU for a term of four years within four months 
 
 1445 
 
Aug. 29, 1916. 
 
 Pt. 3. STATUTES AT LARGE. 
 
 Naval Reserve Force. 
 
 from the date of tlic termination of their last term of enrollment, and who shall 
 have performed the minimum amount of active service required during the 
 preceding term of enrollment, shall, for each such reenrollment, receive an 
 increase of twenty-five per centum of their base retainer pay. — (39 Stat., 588, 
 chap. 417.) 
 
 No enrolled member to receive retainer pay in 
 excess of amount authorized to members 
 ha\'ing had Ifi years' continuous eer\dce. 
 (Act July 1, 1918, 40 Stat., 710-711.) 
 
 Service in Kavy, Marine Corps, Naval Militia, 
 etc., counted as continuous service in the 
 Naval Reserve Force for purpose of com- 
 puting retainer pav. (Act July 1, 1918, 40 
 Stat., 710.) 
 
 Service in the Naval Reserve, created bv act of 
 March 3, 1915 (38 Stat., 940), credited as 
 service in the Naval Reserve Force in 
 certain cases. (Act of Mar. 4, 1917, 39 
 Stat., 1174; see note to act Mar. 3, 1915, 38 
 Stat., 940-941, and note to sec. 1556 R. S., 
 under "37, Naval Reserve Force.") 
 
 [1916, Aug. 29. Eetirement, enrolled members, 20 years' service.] That 
 enrolled members who shall have completed twenty years of service in the 
 Naval Reserve Force, and who shall have performed the minimum amount of 
 active service required in their class for maintaining efficiency during each term 
 of enrollment, shall, upon their own apphcation, be retired with the rank or 
 rating held by them at the time, and shall receive in lieu of any pay, a cash 
 gratuity equal to the total amoimt of their retainer pay during the last term of 
 their enrollment. — (39 Stat., 588, chap. 417.) 
 
 No member of the Naval Reserve Force shall be 
 eligible for retirement other than for physi- 
 cal disability incurred in line of duty. 
 (Act July 1, 1918, 40 Stat., 710.) 
 
 Service in the Na\^-, Marine Corps, National 
 Naval Volunteers, and Naval Militia shall 
 be counted as continuous service in the 
 Naval Reserve Force, both for the purpose 
 
 of retirement and of computing retainer 
 pay. (Act July 1, 1918, 40 Stat., 710.) 
 
 All officers of the Naval Reserve Force sliall be 
 eligible for retirement for physical disa- 
 bility in line of duty. (Act June 4, 1920, 
 41 Stat., 834.) 
 
 See below (39 Stat., 591), as to retirement in 
 Fleet Naval Reserve. 
 
 [1916, Aug. 29. Retainer pay, paid annually, etc.] Retainer pay shall be 
 paid annually or at shorter intervals, as the Secretary of the Navy, in his dis- 
 cretion, may direct! — (39 Stat., 588, chap. 417.) 
 
 See act of June 4, 1920, section 9 (41 Stat., 837), as to withholding retainer pay; see also same 
 act (41 Stat., 824). 
 
 [1916, Aug. 29. Reservists holding public employment, except in military 
 service.] No existing law shall be construed to prevent any member of the 
 Naval Reserve Force from accepting employment in any branch of the public 
 service, except as an officer or enlisted man in any branch of the military service 
 of the United States or any State thereof, nor from receiving the pay and 
 allowances incident to such employment in addition to .his retainer pay. — (39 
 Stat., 588, chap. 417.) 
 
 See act of June 3, 1916, section 74 (99 Stat., 201- 
 202), as amended by act of June 4, 1920, 
 section 41 (41 Stat.," 781-782), as to quali- 
 fications for appointment as National 
 Guard officers. 
 
 Members of Naval Reserve Force may become 
 
 members of naval militia in any State or 
 
 Territory-, etc. (Act July 11, 1919, 41 
 
 Stat., 141.) 
 Until June 30, 1922, certain Naval Militia 
 
 organizations shall be a part of the Naval 
 
 Reserve Force. (Act June 4, 1920, 41 
 
 Stat., 817.) 
 
 [1916, Aug. 29. Enrolled members subject to naval laws, etc.] Enrolled 
 members of the Naval Reserve Force shall be subject to the laws, regulations, 
 and orders for the government of the Regular Navy only during such time as 
 
 1446 
 
Naval Reserve Force. Pt. 3. STATUTES AT LARGE. Aug. 29, 1916. 
 
 they may by law be required to serve in the Navy, in accordance with their 
 obhgations, and when on active service at then" own request as herein provided, 
 and when employed in authorized travel to and from such active service in the 
 
 Navy.— (39 Stat., 588, chap. 417.) 
 
 See provision in act of July 1, 1918 (40 Stat., 
 712), on this subject; and see below (39 
 Stat., 591), as to Fleet Naval Reserve. 
 
 See note to section 1624, Revised Statutes, as to 
 
 persons amenable to articles for the govern- 
 ment of the Navy, and particularly cases 
 noted under "Naval reservists released 
 from active duty. ' ' 
 
 [1916, Aug. 29. Badge of Naval Reserve Force; unauthorized wearing of.] 
 Members of the Naval Reserve Force shall be issued a distinctive badge or button 
 which may be worn with civilian dress, and whoever, not being a member of the 
 Naval Reserve Force of the United States and not entitled imder the law to 
 wear the same, willfully wears or uses the badge or button or who uses or wears 
 the same to obtain aid or assistance thereby, shall be punished by a fine of not 
 more than $20 or by imprisonment for not more than thirty days or by both 
 such fine and imprisonment. — (39 Stat., 588, chap. 417.) 
 
 1916, section 125 (39 Stat., 216-217), and 
 notes thereto, as to unauthorized wearing 
 of the uniform, etc. 
 
 See act of July 1, 1918 (40 Stat., 712), as to 
 reservists wearing their uniforms while not 
 in active service; and see act of June 3, 
 
 [1916, Aug. 29. Active service pay; allowances when not actively em- 
 ployed.] All members of the Naval Reserve Force shall, when actively em- 
 ployed as set forth in this Act, be entitled to the same pay, allowances, gratuities, 
 and other emoluments as officers and enlisted men of the naval service on active 
 duty of corresponding rank or rating and of the same length of service. When 
 not actively employed in the Navy, members of the Naval Reserve Force shall 
 not be entitled to any pay, bounty, gratuity, or pension except as expressly 
 provided for members of the Naval Reserve Force by the provisions of this 
 Act.— (39 Stat., 588, chap. 417.) 
 
 See act of July 1, 1918 (40 Stat., 712), which See act of June 4, 1920, section 2 (41 Stat., 834), 
 modifies the first sentence of this para- as to retirement of officers of the Naval Re- 
 
 graph relating to pay, etc., on active duty; serve Force for physical disability, 
 
 and see note to section 1556, Revised 
 Statutes, vmder "37. Naval Reserve 
 Force." 
 
 [1916, Aug. 29. Service in time of war, etc.] Enrolled members of the 
 Naval Reserve Force may, in time of war or national emergency, be required 
 to perform active service in the Navy throughout the war or until the national 
 emergency ceases to exist. — (39 Stat., 588-589, chap. 417.) 
 
 See above (39 Stat., 587), as to active service 
 
 dming war, etc. 
 Not to perform active duty on shore of a kind 
 
 ordinarily performed by civilians. (Act 
 
 July 11, 1919, 41 Stat., 138.) 
 
 Service afloat, in time of peace, was authorized 
 by act of July 1, 1918. (40 Stat., 711.) 
 
 [1916, Aug. 29. Uniform gratuity, amount credited; refund on discharge.] 
 Members of the Naval Reserve Force shall, upon first reporting for active service 
 for training during each period of enrollment, be credited with a uniform gratuity 
 of $50 for officers and of $30 for men. 
 
 Upon reporting for active service in time of war or national emergency 
 the uniform gratuity shall be $150 for officers and $60 for men, or the difference 
 between these amounts and any amounts that may have been credited as a 
 
 1447 
 
Aug. 29, 1916. Pt. S. STATUTES AT LARGE. Naval Resei-ve Force. 
 
 uniform gratuity during the current enrollment: Provided, That should any 
 member of the Naval Reserve Force sever his connection with the service with- 
 out compulsion on part of the Government before the expiration of his term of 
 enrollment, the amount so credited shall be deducted from any money that may 
 be or may become due him. — (39 Stat., 589, chap. 417.) 
 
 See act of July 1, 1918 (40 Stat., 711), which 
 modified this paragraph as to amount of 
 uniform gratuity allowed members, other 
 than officers; and further provided that 
 no part of the "clothing gratuity" shall be 
 
 appointments in the Navy in time of war 
 
 or emergency. 
 See note to section 1556, Re\ised Statutes, 
 
 under "37. Naval Reserve Force." 
 See above (39 Stat., 587), as to discharge of 
 
 members on request in time of peace. 
 
 ) par 
 deducted when members accept temporary 
 
 [1916, Aug. 29. Reservists to be shipped for service on auxiliary vessels.] 
 Hereafter, in shipping oflicers and men for service on board United States 
 auxiliary vessels, preference shall be given to members of the Naval Reserve 
 Force, and, after two years from the date of approval of this Act, no person 
 shall be shipped for such service who is not a member of the Naval Reserve 
 Force herein provided. — (39 Stat., 589, chap. 417.) 
 
 [1916, Aug. 29. Transfers between classes of Reserve Force.] Members of 
 the Naval Reserve Force may, upon application, be transferred from one class 
 to another class for which qualified under the provisions of this Act; and may 
 in time of war volunteer for and be assigned to duties prescribed for any class 
 which they may be deemed competent to perform. — (39 Stat., 589, chap. 417.) 
 
 [1916, Aug. 29. Pennant for merchant vessels commanded by reservists.] 
 The Secretary of the Navy shall prescribe a suitable flag, or pennant, that may 
 be flo-\\Ti as an insignia on private vessels or vessels of the merchant service 
 commanded by officers of the Naval Reserve Force : Provided, That it shall not 
 be flown in lieu of the National ensign. — (39 Stat., 589, chap. 417.) 
 
 [1916, Aug. 29. Schools of instruction for reservists and applicants.] The 
 Secretary of the Navy is hereby authorized to establish schools or camps of 
 instruction at such times and in such localities as he may deem advisable for 
 the purpose of instructing members and applicants for membership in the Naval 
 Reserve Force. No applicant shall be accepted for instruction unless he agrees 
 to abide by the regulations of the school and pursue the course prescribed by 
 the Secretary of the Navy. Persons who satisfactorily complete the course will 
 be given certificates of qualification for the rank or rating for which duly qual- 
 ified, and may be permitted to enroll in the proper class of the reserve in such 
 rank or rating. — (39 Stat., 589, chap. 417.) 
 
 FLEET NAVAL RESERVE. 
 
 [1916, Aug. 29. Membership qualifications, Fleet Naval Reserve.] All 
 former officers of the United States naval service, including midshipmen, who 
 have left that service under honorable conditions, and those citizens of the 
 United States who have been, or may be entitled to be, honorably discharged 
 from the naval service after not less than one four-year term of enlistment or 
 after a term of enlistment during minority, and who shall have enrolled in the 
 Naval Reserve Force shall be eligible for membership in the Fleet Naval 
 Reserve.— (39 Stat., 589, chap. 417.) 
 
 See above (39 Stat., 587-588), as to eligibility of former officer dismissed from the Navy and 
 subsequently pardoned. 
 
 1448 
 
Naval Reserve Force. Ft. 3. STATUTES AT LARGE. Aug. 29, 1916. 
 
 [1916, Aug. 29. Transfer of enlisted men to Fleet Naval Reserve.] In addi- 
 tion to the enrollments in the Fleet Naval Reserve above provided, the Secretary 
 of the Navy is authorized to transfer to the Fleet Naval Reserve at any time 
 within his discretion any enlisted man of the naval service with twenty or more 
 years' naval service, and any enlisted man, at the expiration of a term of enlist- 
 ment who may be then entitled to an honorable discharge, after sixteen years' 
 naval service: Provided, That such transfers shall only be made upon voluntary 
 application and in the rating in which then serving, and the men so transferred 
 shall be continued in the Fleet Naval Reserve until discharged by competent 
 authority.— (39 Stat., 589-590, chap. 417.) 
 
 [1916, Aug. 29. Minimum active service, enrolled members, Fleet Naval 
 Reserve.] The Secretary' of the Navy is authorized to assign any member of 
 the Fleet Naval Reserve to active duty for training on board ship, upon the 
 application of such member, but any member who has failed to perform three 
 months' active service with the Navy in any term of enrollment shall, on the 
 next reenrollment, receive retainer pay at the rate of $12 per annum until such 
 time as he shall have completed three months' active service. The three months' 
 active service with the Navy may be taken in one or more periods, at the elec- 
 tion of the member: Provided, That no member shall be entitled to travel 
 allowance unless the period of such active service is for not less than one month, 
 or unless specifically provided for by such regulations as may be prescribed by 
 the Secretary of the Navy. — (39 Stat., 590, chap. 417.) 
 
 Amendment to this paragraph was made by act 
 of April 25, 1917 (40 Stat., 37), which ex- 
 pressly repealed the words "on board ship " 
 after the word "training" in the first sen- 
 tence of the paragraph as set forth above. 
 
 By act of June 4, 1920, section 9 (41 Stat., 837), 
 it was provided "that hereafter the mini- 
 
 mum amount of active service required for 
 the maintenance of the efiiciency of the 
 Fleet Naval Reserve shall be the same as 
 for the Naval Reserve. " (See below, under 
 "Naval Reserve, " as to active service for 
 maintaining efficiency therein.) 
 
 [1916, Aug. 29. Retainer pay, enrolled men, Fleet Naval Reserve; retire- 
 ment of transferred members.] The retainer pay of the enrolled men of the 
 Fleet Naval Reserve shall be the same as for the enrolled men of the Naval 
 Reserve and shall be computed in like manner: Provided^ That nothing herein 
 shall operate to reduce the retainer pay allowed by existing law to erdisted men 
 who, after sixteen years' or more naval service, are transfeiTed to the Fleet 
 Naval Reserve, nor to deny to such enlisted men their privilege of retirement 
 upon completing thirty years' naval service as now provided by law. — (39 Stat., 
 590, chap. 417; 40 Stat., 710, chap. 114.) 
 
 This provision was expressly amended and re- 
 enacted to read as above by act of July 1, 
 1918 (40 Stat., 710). As to retirement of 
 transferred members, see below (39 Stat., 
 
 591) ; as to retirement of enrolled members, 
 see above (39 Stat., 588). 
 See note to section 1556, Revised Statutes, un- 
 der "37. Naval Reserve Force." 
 
 [1916, Aug. 29. Constructive service; men discharged before expiration of 
 enlistment.] That for all purposes of this act a complete enlistment during 
 minority and any enlistment terminated within three months prior to the expi- 
 ration of the term of enlistment by special order of the Secretary of the Navy 
 shall be considered as four years' service. — (39 Stat., 590, chap. 417.) 
 
 1449 
 
Aug. 29, 1916. 
 
 PL S. STATUTES AT LARGE. 
 
 Naval Reserve Force. 
 
 [1916, Aug. 29. Retainer pay, officers, Fleet Naval Reserve.] 
 
 the retainer pay of "all members" of the Naval 
 Reserve Force, "except officers in the Naval 
 Auxiliary Reserve and transferred members 
 of the Fleet Naval Reserve. " 
 
 See note to section 1556, Revised Statutes, 
 under "37. Naval Reserve Force." 
 
 This clause read as follows: 
 
 "The annual rotainor ]nvy of ofTicera of the 
 Fleet Naval Reserve shall l)e two months' 
 base pay of the corresponding rank in the 
 Navy." (39 Stat., 590, chap. 417.) 
 
 It was superseded hy act of July 1, 1918 (40 
 Stat., 710), whicii made other provision as to 
 
 [1916, Aug. 29. Increased retainer pay on reenrollment.] Reenrollments 
 in the Fleet Naval Reserve shall be for four years. Officers and men em-olling 
 in the Fleet Naval Reserve within four months of the date of the termination 
 of their last naval service or reenroUing wdthin four months of the date of the 
 terminatiom of their last term of enrollment shall receive an increase of twenty- 
 five per centum of their retainer pay for each such enroUment. — (39 Stat., 590, 
 chap. 417.) 
 
 See above (39 Stat., 588), as to increased re- 
 tainer pay on reenrollment; and see note to 
 section 1556, Revised Statutes, under "37. 
 Naval Reserve Force. " 
 
 No enrolled member shall receive retainer pay 
 in excess of amount authorized to members 
 ha\dng had 16 years' continuous service. 
 (Act July 1, 1918, 40 Stat., 710-711.) 
 
 [1916, Aug. 29. Enrolled members reenlisting in the regular naval service.] 
 That men who have enrolled in the Fleet Naval Reserve within four months 
 of the date of their discharge from the regular naval service shall, upon reen- 
 listment in the regular naval service within four months of the date of discharge 
 from the Fleet Naval Reserve, be entitled to the same gratuity and additional 
 pay as if they had reenlisted in the regular naval service within four months of 
 discharge therefrom. — (.39 Stat., 590, chap. 417.) 
 
 Service in the Navy, Marine Corps, National 
 Naval Volunteers, etc., counted as continu- 
 ous service in the Naval Reserve Force for 
 piu'pose of computing retainer pay, (Act 
 July 1, 1918, 40 Stat., 710.) 
 
 Active reser\'e service credited to enlisted men 
 and warrant officers of the Navy and Marine 
 Corps for retirement, continuous service 
 pay, and longe\dty pay, in certain cases: 
 See act of July ll,'l919 (41 Stat., 141); see 
 also notes to sections 1569 and 1573, Revised 
 
 Statutes, as to pay of enlisted men of the 
 Navy; note to section 1556, Re\'ised Stat- 
 utes, as to pay of officers of the Navy and 
 members of the Naval Reserve Force; and 
 note to section 1612, Re\ised Statutes, as to 
 pay of the Marine Corps. 
 
 [1916, Aug. 29. Retainer pay, transferred members of Fleet Naval Reserve; 
 special increases for heroism and conduct marks.] Members of the Fleet Naval 
 Reserve who have, when transferred to the Fleet Naval Reserve, completed 
 naval service of sixteen or twenty or more years shall be paid a retainer at the 
 rate of one-third and one-half, respectively, of the base pay they were receiving 
 at the close of their last naval service plus all permanent additions thereto: 
 Provided^ That the pay authorized in this paragraph as a retainer shall be in- 
 creased ten per centum for all men who may be credited with extraordinary 
 heroism in the line of duty or whose average marks in conduct for twenty years 
 or more shall not be less than ninety-five per centum of the maximum. — (39 
 vStat., 590, chap. 417.) 
 
 See note to section 1556, Revised Statutes, under computed on the base pay they are re- 
 
 "37. Naval Reserve Force." ceiling when retransf erred to inactive 
 
 Retainer pay in the cases of certain members, duty, plus the additions or increases 
 
 Fleet Naval Reserve, on active duty be- authorized by act of August 29, 1916. 
 
 tween June, 1920, and July, 1922, shall be (Act May 18, 1920, sec. 6, 41 Stat., 603.) 
 
 [1916, Aug. 29. Retainer pay forfeited for cause.] Any pay which may be 
 due any member of the Fleet Naval Reserve shall be forfeited when so ordered 
 
 1450 
 
Naval Reserve Force. 
 
 Pt. 3. STATUTES AT LARGE. 
 
 Aug. 29, 1916. 
 
 by the Secretary of the Navy upon the failure, under such conditions as may 
 be prescribed by the Secretary of the Navy, of such man to report for inspec- 
 tion.— (39 Stat., 590, chap. 417.) 
 
 See above (39 Stat., 588), tinder "Retainer pay; 
 conditions of payment;" and see act of 
 June 4, 1920 (41 Stat., 824 and 837), for 
 
 other provisions relating to forfeiture of 
 retainer pay. 
 
 [1916, Aug. 29. Members warranted or commissioned; retainer pay, etc., 
 not reduced.] Members of the Fleet Naval Reserve who have established their 
 qualifications by examination to the satisfaction of the Secretary of the Navy 
 may be given warrants or commissions in the Fleet Naval Reserve in the grades 
 of boatswain, gunner, carpenter, machinist, pharmacist, pay clerk, ensign for 
 deck or engineering duties, or in the lowest grades of the staff corps : Provided 
 further, That those so warranted or commissioned shall not be deprived of the 
 retainer pay, allowances, or gratuities to which they would be otherwise 
 entitled.— (39 Stat., 590-591, chap. 417.) 
 
 [1916, Aug-. 29. Fleet Naval Reserve, laws governing; discharge and re- 
 tirement ; uniform outfit.] Men transferred to the Fleet Naval Reserve shall be 
 governed by the laws and regulations for the government of the Navy and shall 
 not be discharged from the Naval Reserve Force without their consent, except 
 by sentence of a court-martial. They may, upon their own request, upon 
 completing thirty years' service, including naval and fleet naval reserve service, 
 be placed on the retired list of the Navy with the pay they were then receiving 
 plus the allow^ances to which enlisted men of the same rating are entitled on 
 retirement after thirty years' naval service. They shall be required to keep 
 on hand such part of the uniform-clothing outfit as may be prescribed by the 
 Secretary of the Navy. — (39 Stat., 591, chap. 417.) 
 
 As to laws and regulations governing enrolled 
 members, see act of July 1, 1918 (40 Stat., 
 712); as to retirement of enrolled members, 
 see above (39 Stat., 588), under "Retire- 
 
 ment, enrolled members, 20 years' service." 
 See also above (39 Stat., 590, as amended), 
 as to retirement of transferred members. 
 
 [1916, Aug. 29. Retired enlisted men; active duty; pay, etc.] The Secre- 
 tary of the Navy is authorized in time of war or when a national emergency 
 exists to call any enlisted man on the retired list into active service for such 
 duty as he may be able to perform. While so employed such enlisted men shall 
 receive the same pay and allowances they were receiving when placed on the 
 retu-ed list.— (39 Stat., 591, chap. 417.) 
 
 See act of March 3, 1915 (38 Stat., 941), and references thereunder, as to retired enlisted men. 
 
 NAVAL RESERVE. 
 
 [1916, Aug. 29. Qualifications for Naval Reserve.] Members of the Naval 
 Reserve Force who have enrolled for general service and are citizens of the 
 United States are eligible for membership in the Naval Reserve. No person 
 shall be enrolled in or transferred to this class unless he estabUshes satisfactory 
 evidence as to his qualifications for duty on board combatant ships of the 
 Navy.— (39 Stat., 591, chap. 417; 40 Stat., 710, chap. 114.) 
 
 54641°— 22- 
 
 -92 
 
 1451 
 
Aug. 29, 1916. 
 
 PL S. STATUTES AT LARGE. 
 
 Naval Reserve Force. 
 
 This parap:iaph was expressly amended and The age limits for the several ranks, grades, and 
 
 reenacted toread aaaboveby actof July 1, ratings on first enrollment in the Naval 
 
 1918 (40 Stat., 710). Reserve shall be as prescribed by the Sec- 
 
 Xo }>erson shall enroll in \\\o. Naval Reserve retary of the Navy. (Act July 1, 1918, 
 
 Force except for general service. (Act 40 Stat., 710.) 
 
 June 4, 1920. sec. 2, 41 Stat., 834.) | 
 
 [1916, Aug. 29. Minimum active service for confirmation.] The minimum 
 active service required of members to qualify for confirmation in their rank 
 or rating in this class shall be three months. — (39 Stat., 591. chap. 417.) 
 
 [1916, Aug. 29. Minimum service for maintaining efficiency. Naval Eeserve.] 
 
 This paragraph read as follows: 
 "The minimum active service required for 
 maintaining the efficiency of a member of this 
 class is three months during each term of en- 
 rollment. This active service may be in one 
 period or in periods of not less than three weeks 
 each year." (39 Stat., 591, chap. 417.) 
 
 It -was superseded by the following pro- 
 vision on the same subject contained in act of 
 Julyl, 1918 (40 Stat., 710): 
 
 "That the minimum active service required 
 for maintaining the efficiency of a member of 
 the Naval Reserve shall be two months duiing 
 each term of enrollment and an attendance at 
 not less than thirty-six drills during each year, 
 or other equivalent duty. The active service 
 may be in one period or in periods of not less 
 than fifteen days each." 
 
 [1916, Aug. 29. Retainer pay, Naval Reserve.] 
 
 This paragraph read as foUo-ws: 
 "The annual retainer pay of members in 
 this class after confirmation in rank or rating 
 shall be two months' base pay of the corre- 
 sponding rank or rating in the Navy." (39 
 Stat., 591, chap. 417.) 
 
 It was superseded by other provisions 
 contained in act of July 1, 1918 (40 Stat., 
 
 710), relating to the retainer pay of all mem- 
 bers of the Naval Reserve Force "except 
 officers in the Naval Auxiliary Reserve and 
 transferred members of the Fleet Naval Re- 
 serve." 
 
 See note to section 1556, Revised Statutes, 
 under "37. Naval Reserve Force." 
 
 NAVAL AUXILIARY RESERVE. 
 
 [1916, Aug. 29. Qualifications for Naval Auxiliary Reserve.] Members 
 
 of the Naval Reserve Force of the seagoing profession who shall have been 
 
 or may be employed on American vessels of the merchant marine of suitable 
 
 type for use as naval auxiliaries and which shall have been listed as such by tlie 
 
 I^avy Department for use in war, shall be eligible for membership in the Naval 
 
 Auxiliary Reserve. — (39 Stat., 591, chap. 417.) 
 
 No person shall enroll in the Naval Reserve Force except for general ser\T.ce. (Act June 4, 
 1920, sec. 2, 41 Stat.. 834.) 
 
 [1916, Aug. 29. Active service in time of war.] In time of war or during 
 the existence of a national emergency, persons in this class shall be required 
 to serve only in vessels of the merchant ship type, except in cases of emergency, 
 to be determined by the senior officer present, when said officer may, in his 
 discretion, detail them for temporary duty elsewhere as the exigencies of the 
 service may require. — (39 Stat., 591, chap. 417.) 
 
 [1916, Aug. 29. Requirements for confirmation and maintenance of ef- 
 ficiency.] The requu'ement as to qualifications of officers and men for con- 
 firmation in rank or rating, and as to the maintenance of efficiency in rank or 
 rating, shall be prescribed by the Secretary of the Navy and shall be limited 
 to the requirements for the proper organization, discipline, maneuvering, 
 navigation, and operation of vessels of the merchant ship type while per- 
 forming auxiliary service to the fleet in time of war, and length of time of em- 
 ployment on board such vessels in the merchant service. — (39 Stat., 591- 
 592, chap. 417.) 
 
 1452 
 
Naval Reserve Force. Pt. 3. STATUTES AT LARGE. Aug. 29, 1916. 
 
 [1916, Aug. 29. Military command, limitation or exercise of.] Officers 
 in the Naval Auxiliary Reserve shall exercise military command only on 
 board the ships to which they are attached and in the naval auxiliary service. — 
 (39 Stat., 592, chap. 417.) 
 
 [1916, Aug. 29. Retainer pay, Naval Auxiliary Reserve.] The annual 
 retainer pay of members in this class after confirmation in rank or rating shall 
 be for officers, one month's base pay of the corresponding rank in the Navy, 
 and for men, two montlis' base pay of the corresponding rating in the Navy. — 
 (39 Stat., .592, chap. 417.) 
 
 So much of this paragraph as relates to re- 
 tainer pay for members, other than officers, 
 in the Naval Auxiliary Reserve, was 
 superseded by act of July 1, 1918 (40 
 Stat., 710). 
 
 See note to section 1556, Revised Statutes, 
 under "37. Naval Reserve Force." 
 
 NAVAL COAST DEFENSE RESERVE. 
 
 [1916, Aug. 29. Qualifications for Coast Defense Reserve.] IVTembers of the 
 Naval Reserve Force who may be capable of performing special useful 
 service in the Navy or in connection with the Navy in defense of the coast, 
 shall be eligible for membership in the Naval Coast Defense Reserve. — (39 
 Stat., 592, chap. 417.) 
 
 [1916, Aug. 29. Character of service for which enrolled.] Persons may enroll 
 in this class for service in connection with the naval defense of tlie coast, such 
 as service with coast-defense vessels, torpedo craft, mining vessels, patrol vessels 
 or as radio operators, in various ranks or ratings corresponding to those of the 
 Navy for which they shall have qualified under regulations prescribed by the 
 Secretary of the Navy. — (39 Stat., 592, chap. 417). 
 
 No person shall enroll in the Naval Reserve 
 Force except for general service. (Act 
 June 4, 1920, sec. 2, 41 Stat., 834.) 
 
 Not to perform active duty on shore of a kind 
 ordinarily performed by civilians. ('Act 
 July 11, 1919, 41 Stat., 138.) 
 
 Not to exercise command except within par- 
 ticular service and for due performance 
 of duty. (Act July 1, 1918, 40 Stat., 711.) 
 
 [1916, Aug. 29. Owners of power boats; enrollment; contracts for use of 
 boats.] That the Secretary of the Navy may jiermit the enrollment in this class 
 of owners and operators of yachts and motor power boats suitable for naval 
 purposes in the naval defense of the coast; and is hereby authorized to enter 
 into contract with the o^vners of such power boats and other craft suitable for 
 war purposes to take over the same in time of war or national emergency 
 upon payment of a reasonable indenmity. — (39 Stat., 592, chap. 417.) 
 
 See note above, as to "character of service for 
 which enrolled;" and see act of March 4, 
 
 1917 (39 Stat., 1192-1193), as to procure- 
 ment of vessels, etc., in time of war. 
 
 [1916, Aug. 29. Active service for confirmation and efficiency.] The amount 
 of active service required for confirmation in rank and rating and for main- 
 taining efficiency in rank and rating shall be the same as that required for 
 members of the Naval Reserve. — (39 Stat., 592, chap. 417.) 
 
 See above (39 Stat., 591), as to active serxdce required for confirmation and maintenance 
 of efficiency in the Naval Reserve. 
 
 1453 
 
Ang. 29, 1916. 
 
 Pt. 3. STATUTES AT LARGE. 
 
 Naval Reserve Force. 
 
 [1916, Aug. 29. Retainer pay, Coast Defense Reserve. 
 
 This paragraph read as follows: 
 "The annual retainer i)ay of members of 
 this class shall be the same as that of members 
 of the Naval Reserve." (39 Stat., 592, chap. 
 417.) 
 
 It was superseded by other provisions 
 contained in the act of July 1, 1918 (40 Stat., 
 710). 
 
 See note to section 1556, Revised Statutes, 
 under "37. Naval Reserve Force." 
 
 VOLUNTEER NAVAL RESERVE. 
 
 [1916, Aug. 29. Qualifications for membership, etc.] The Volunteer Naval 
 Reserve shall be composed of those members of the Naval Reserve Force who 
 are eligible for membership in any one of the other classes of the Naval Reserve 
 Force, and who obligate themselves to serve in the Navy in any one of said classes 
 without retainer pay and imiform gratuity in time of peace. — (39 Stat., 592, 
 chap. 417.) 
 
 No person shall enroll in the Naval Reserve 
 Force except for general service. (Act 
 June 4, 1920, sec. 2, 41 Stat., 834.) 
 
 See note to section 1556, Revised Statutes, 
 under "37. Naval Reserve Force." 
 
 NAVAL RESERVE FLYING CORPS. 
 
 [1916, Aug. 29. Qualifications for membership, etc.] The Naval Reserve 
 Flying Corps shall be composed of officers and student flyers who have been 
 transferred from the Naval Flj^ing Corps to the Naval Reserve Flying Corps 
 and of enlisted men who shall have been so transferred under the same condi- 
 tions as those provided by law for enlisted men of the Navy transferred to the 
 Fleet Naval Reserve: Provided, That surplus graduates of the aeronautic school 
 may be commissioned as ensigns in the Naval Reserve Flying Corps and pro- 
 moted therein under such regulations as may be prescribed by the President. 
 Members of the Naval Reserve Force skiUed in the flying of aircraft or in their 
 design, buflding, or operation, shall be ehgible for membership in the Naval 
 Reserve Flying Corps. The amount of active service required for confirmation 
 in grade, rank, or rating, and for maintaining efficiency therein, shall be the 
 same as that required for members of the Naval Reserve. The retainer pay of 
 members of the Naval Reserve Flying Corps shall be the same as that of mem- 
 bers of the Naval Reserve.— (39 Stat., 592, chap. 417.) 
 
 The last sentence of this paragraph, as to re- within their particular department or 
 
 tainer pay, was superseded by other pro- service for the due performance of their 
 
 visions on the subject contained in act of duties. (Act July 1, 1918, 40 Stat., 711.) 
 
 July 1, 1918 (40 Stat., 710). See above (39 Stat., 582-583), relating to the 
 
 Members not to exercise command, except Naval Fljing Corps. 
 
 MARINE CORPS RESERVE. 
 
 [1916, Aug. 29. Established under laws relating to Naval Reserve Force; 
 exceptions.] A United States Marine Corps Reserve, to be a constituent part, 
 of the Marine Corps and in addition to the authorized strength thereof, is 
 hereby established under the same provisions in all respects (except as may be 
 necessary to adapt the said provisions to the Marine Corps) as those providing 
 for the Naval Reserve Force in this Act: Provided, That the Marine Corps 
 Reserve may consist of not more than five classes, corresponding, as near as 
 may be, to the Fleet Naval Reserve, the Naval Reserve, the Naval Coast 
 
 1454 
 
Coast Guard. 
 
 PL 3. STATUTES AT LARGE. 
 
 Aug. 29, 1916. 
 
 Defense Reserve, the Volunteer Naval Reserve, and the Naval Reserve Flying 
 Corps, respectively. — (39 Stat., 593, chap. 417.) 
 
 See above (39 Stat., 587-592) for pro\isions of 
 law relating to Naval Reserve Force. 
 Amendatory statutes. — Only provisions 
 of law contained in the act of August 29, 1916, 
 relating to the Naval Reserve Force, or which 
 are expressly amendatory of that act, are made 
 
 applicable to the Marine Corps Reserve by this 
 paragraph . Other subsequent enactments ap- 
 ply to the Marine Corps Reserve only where 
 specifically named therein. (File 26253-737, 
 Oct. 16, 1919.) 
 
 [1916, Aug. 29. Old Naval Reserve law repealed in part.] All Acts or parts 
 of Acts relating to the Naval Reserve which are inconsistent with the provisions 
 of this Act relating to the Naval Reserve Force are hereby repealed. — (39 Stat., 
 593, chap. 417.) 
 
 See act of ]\Iarch 3, 1915 (38 Stat., 940-941), and note thereto, relating to the Naval Reserve. 
 [1916, Aug. 29. Retainer pay; appropriations to which chargeable.] The 
 retainer pay and active service pay of members of the Naval Reserve Force 
 shall be paid from the appropriation ''Pay — the Navy," and the retainer pay 
 and active service pay of the IVIarine Corps Reserve shall be paid from the 
 appropriation ''Pay, IVIarine Corps." — (39 Stat., 593, chap. 417.) 
 
 [1916, Aug. 29. Naval Militia and National Naval Volunteers. Repealed.] 
 
 various classes of the Naval Reserve Force and 
 Marine Corps Reserve. Some legislation re- 
 
 lating to the Naval Militia was partially revived 
 until June 30, 1922, by act of June 4, 1920 (41 
 
 Stat., 817). 
 
 The provisions of the act of August 29, 1916 
 (39 Stat., 593-600), and all other laws relating to 
 the Naval Militia and the National Naval 
 Volunteers, were repealed by act of July 1, 1918 
 (40 Stat., 708), which authorized the transfer 
 of members of the latter organization to the 
 
 [1916, Aug. 29. Sale of fuel to Volunteer Patrol Squadrons.] That the 
 
 Secretaiy of the Navy is hereby authorized to sell at cost and issue lubricating 
 
 oil and gasoline to vessels of the Volunteer Patrol Squadrons duly enrolled in 
 
 the several naval districts; and that during maneuvers or practice drills when 
 
 any vessels of said Patrol Boat Squadrons shall be acting singly or as squadrons 
 
 imder the direct command or control of an officer or officers of the United 
 
 States Navy, gasolme fuel shall be supplied to them free of charge. — (39 Stat., 
 
 600, chap. 417.) 
 
 Amendment to this paragraph was made by for the word "fuel"; and struck out the 
 
 act of March 4, 1917 (39 Stat., 1172), which word "gasoline " where it occurs the second 
 
 struck out the word "gasoline" where it time in said paragraph, 
 first appears therein, and substituted there- 
 
 [1916, Aug. 29. Coast Guard, laws to which subject.] Whenever, in time 
 of war, the Coast Guard operates as a part of the Navy in accordance with law, 
 the personnel of that service shall be subject to the laws prescribed for the 
 government of the Navy: Provided, That in the initiation, prosecution, and 
 completion of disciplinary action, including remission and mitigation of punish- 
 ments for any offense committed by any officer or enlisted man of the Coast 
 Guard, the jm-isdiction shall hereafter depend upon and be in accordance with 
 the laws and regulations of the department having jurisdiction of the person 
 of such offender at the various stages of such action: Provided further, That 
 any punishment imposed and executed in accordance with the provisions of 
 this section shall not exceed that to which the offender was liable at the time 
 of the commission of his offense. — (39 Stat., 600, chap. 417.) 
 
 See acts of January 28, 1915 (38 Stat., 800), and October 6, 1917 (40 Stat., 393). 
 
 1455 
 
Aug. 29, 1916. PL S. STATUTES AT LARGE. Lighthouse Service. 
 
 [1916, Aug. 29. Expenses of Coast Guard when serving with the Navy.] 
 IIiToafter whenever, in uceonlancc with hiw, the expenses of the Coast Guard 
 are paid by the Navy Department, any naval appropriations from which pay- 
 ments arc so made shall be reimbursed from available appropriations made by 
 Congress for the expenses of the Coast Guard. — (39 Stat., 600, chap. 417.) 
 
 See section 2757, Revised Statutes, and act of January 28, 1915 (38 Stat., 800). 
 
 [1916, Aug. 29. Precedence between officers of Navy and Coast Guard.] 
 Wlienever the personnel of tlie Coast Guard, or any part thereof, is operating 
 with the personnel of the Navy in accordance with law, precedence between 
 commissioned officers of corresponding grades in the two services shall be 
 determined by the date of commissions in those grades. — (39 Stat., 600, chap. 
 
 417.) 
 
 See note to section 1492, Revised Statutes. 
 
 [1916, Aug. 29. Coast Guard personnel, duties; maintenance of stations.] 
 Any commissioned or warrant officer, petty officer, or other enlisted man in the 
 Coast Guard may be assigned to any duty which may be necessary for the 
 proper conduct of the Coast Guard; and the Secretary of the Treasury in time 
 of peace and the Secretary of the Navy in time of war may, in his discretion, 
 man any Coast Guard station during the entire year, or any portion thereof, 
 maintain any house of refuge as a Coast Guard station, and change, establish, 
 and fix the lim its of Coast Guard districts and divisions. — (39 Stat., 600, chap. 
 
 417.) 
 
 See act of January 28, 1915 (38 Stat., 800). 
 
 [1916, Aug. 29. Instruction of Coast Guard at Navy schools.] At the request 
 of the Secretary of the Treasury the Secretaries of War and Navy are author- 
 ized to receive officers and enlisted men of the Coast Guard for instruction in 
 aviation at any aviation school maintained by the Army and Navy, and such 
 ofiicers and enlisted men shall be subject to the regulations governing such 
 schools.— (39 Stat., 601, chap. 417.) 
 
 [1916, Aug. 29. Lighthouse Service, status and duties in war.] The President 
 is hereby authorized, whenever in his judgment a sufficient national emergency 
 exists, to transfer to the service and jurisdiction of the Navy Department, or 
 of the War Department, such vessels, equipment, stations, and personnel of 
 the Lighthouse Service as he may deem to the best interest of the country, and 
 after such transfer all expenses connected therewith shall be defrayed out 
 of the appropriations for the department to which transfer is made: Provided, 
 That such vessels, equipment, stations, and persomiel shall be returned to the 
 Lighthouse Service when such national emergency ceases in the opinion of the 
 l^resident, and nothuig in this Act shall be construed as transferrmg the Light- 
 house Service or any of its functions from the Department of Commerce except 
 in time of national emergency and to the extent herein provided: Provided 
 further, That any of the persomiel of the Lighthouse Service who may be 
 transferred as herein provided shall, while under the jurisdiction of the Navy 
 Department or War Department, be subject to the laws, regulations, and 
 orders for the government of the Navy or Army, as the case may be, in so far 
 as the same may be applicable to persons whose retention permanently in the 
 military service of the United States is not contemplated by law; 
 
 1456 
 
Naval Academy. Pt. 3. STATUTES AT LARGE. Aug. 29, 1916. 
 
 The Secretary of the Navy, the Secretary of War, and the Secretary of 
 Commerce shall jointly prescribe regulations governing the duties to be per- 
 formed by the Lighthouse Service in time of war, and for the cooperation of that 
 service with the Navy and War Departments in time of peace in preparation 
 for its duties in war, and this may include arrangements for a direct Ime of com- 
 munication between the officers or bureaus of the Navy and War Departments 
 and the Bureau of Lighthouses to provide for immediate action on all com- 
 munications from these departments. — (39 Stat., 602, chap. 417.) 
 
 See act of October 6, 1917 (40 Stat., 393). 
 
 [1916, Aug. 29. Eepairs and changes to capital ships.] The statutory 
 limit of $200,000 for repairs and changes to capital ships of the Navy, as pro- 
 vided in the Act making appropriations for the naval service for the fiscal 
 year ending June thhtieth, nineteen hundred and eight, approved March 
 second, nineteen hundred and seven, is hereby changed to S300,000. — (39 Stat., 
 605, chap. 417.) 
 
 See note to section 1538, Re^'ised Statutes. 
 
 [1916, Aug. 29. Sale of unserviceable vessels.] The Secretary of the 
 Navy is hereby authorized to sell any or all of the auxiliary ships of the Navy 
 classified as coUiers, transports, tenders, supply ships, special types, and hospital 
 ships, wliich are eighteen years and over in age, which he deems unsuited to 
 present needs of the Navy and which can be disposed of at an advantageous 
 price, which shall not be less than fifty per centum of their original cost, the 
 money obtained from such sale to be covered into the Treasury as miscella- 
 neous receipts. — (39 Stat., 605, chap. 417.) 
 
 See section 1541, Revised Statutes, and note thereto. 
 
 [1916, Aug. 29. Transfer of lands to jurisdiction of Navy Department.] 
 That such land of the United States under the control of a particular depart- 
 ment or other branch of the Government that has been or may hereafter be 
 mutually selected as a site for a naval radio station may, by direction of the 
 President, be transferred to and placed under the control and jurisdiction of 
 the Navy Department for use as a naval radio station or other naval purposes.- 
 (39 Stat., 606, chap. 417.) 
 
 See section 418, Revised Statutes, and note thereto. 
 
 [1916, Aug. 29. Employment of professors, Naval Academy.] That the 
 Secretary of the Navy is authorized to employ at the Naval Academy such 
 number of professors and instructors, including one professor as librarian, as, 
 in his opinion, may be necessary for the proper instruction of the midshipmen; 
 and that professors and instructors so employed shall receive such compensa- 
 tion for their services as may be prescribed by the Secretary of the Navy: 
 Provided further, That the total amount so paid shall not exceed $175,000 
 annually: And provided further, That the Secretary of the Navy shall report 
 to Congress each year the number of professors and instructors so employed 
 and the amount of compensation prescribed for each. — (39 Stat., 607, chap. 417.) 
 
 See note to section 1528, Revised Statutes; and see act of May 18, 1920, section 7 (41 Stat., 
 603). 
 
 1457 
 
Aug. 29, 1916. 
 
 Pt. 3. STATUTES AT LARGE. 
 
 Marine Corps. 
 
 [1916, Aug. 29. Board of Visitors, Naval Academy.] From and after the 
 passage of this Act there shall be appointed every year, in the following manner, 
 a Board of Visitors, to visit the academy, the date of the annual visit of the 
 board aforesaid to be fixed by the Secretary of the Navy: Seven persons shall 
 be appointed by the President and four Senators and five Members of the 
 House of Kepresentatives shall be designated as visitors by the Vice President 
 or President pro tempore of the Senate and the Speaker of the House of Repre- 
 sentatives, respectively, in the month of January of each year. The chairman 
 of the Committee on Naval Affairs of the Senate and chairman of the Com- 
 mittee on Naval Affairs of the House of Representatives shall be ex officio 
 members of said board. 
 
 Each member of said board shall receive while engaged upon duties as a 
 member of the board not to exceed $5 a day and actual expenses of travel by 
 the shortest mail routes. — (39 Stat., 608, chap. 417.) 
 
 See sections 1511-1528, Revised Statutes, act of August 4, 1886 (24 Stat., 268), as to 
 
 relating to the Naval Academy; and see expenses of Board of Visitors. 
 
 [1916, Aug. 29. Marine Corps, number of officers; distribution in ranks.] 
 Hereafter the total number of commissioned officers of the active list of the 
 line and staff of the IVIarine Corps, exclusive of officers borne on the Navy list 
 as additional numbers, shall be four per centum of the total authorized enlisted 
 strength of the active list of the Marine Corps, exclusive of the Marine Band, 
 and of men under sentence of discharge by coiu't-martial, distributed in the 
 proportion of one officer with rank senior to colonel to four with the rank of 
 colonel, to five with the rank of lieutenant colonel, to fourteen with the rank 
 of major, to thirty-seven with the rank of captain, to thirty-one with the rank 
 of first lieutenant, to thirty-one with the rank of second lieutenant. — (39 
 Stat., 609, chap. 417.) 
 
 number of officers in each gi-ade and rank therein 
 by taking the nearest whole number in the case 
 of a final fraction. Under such circumstances, 
 the provision fixing the total number of officers 
 on the active list is controlling, and the result 
 is to increase the number allowed in the grade 
 of second lieutenant by one officer in the present 
 instance, in order that the total number may 
 be fully distributed. This increase must be 
 placed in the giade of second lieutenant, and 
 can not be placed in any higher giade. (File 
 28687-5, Nov. 20, 1916.) 
 
 Distribution of actual number of officers 
 when less than authorized number. — This 
 paragraph provides for the distribution of the 
 authorized number of officers, and is mandatory, 
 when the MarineCorps has its full number of com- 
 missioned officers, as to the proportion in which 
 such officers shall be distributed in the various 
 ranks; but where the actual number of commis- 
 sioned officers is less than the authorized num- 
 ber, it is within the discretion of the Secretary 
 of the Navy to place the shortage in the higher 
 or lower ranks, or to distribute same between 
 the various ranks, as he deems expedient. (File 
 28687-5:1, Apr. 11, 1917.) 
 
 The act of August 29, 1916 (39 Stat., 576), 
 requires that the actual number of commis- 
 sioned officers in the Navy shall be distributed 
 in the various grades and ranks in certain pro- 
 
 See section 1596, Revised Statutes, and note 
 thereto. 
 
 Additional nmnbers. — This paragraph, in 
 80 far as it deals with distribution of commis- 
 sioned officers in the various grades and ranks 
 of the Marine Corps, refers only to officers who 
 are regular numbers in grade, and not to officers 
 who, for any reason are, or may become, addi- 
 tional numbers. Accordingly, in all computa- 
 tions having to do with the distribution of 
 officers in the various ranks and giades, addi- 
 tional number officers are to be excluded fi-om 
 consideration. (File 28687-1, Aug. 18, 1916.) 
 
 See below as to additional nmnber officers 
 promoted to brigadier general. 
 
 Computations, final fractions. — The clause 
 in this act (39 Stat., 577), relating to the disposi- 
 tion of final fractions which occur in computing 
 the authorized number of any corps, gi'ade, or 
 rank in thf^ naval s('r\'ice, applies to the Marine 
 Corps, and accordingly "the nearest whole 
 number shall be regarded as the authorized 
 number" of marine officers in the cases men- 
 tioned in that clause. (File 28687-5, Aug. 29 
 and Nov. 20, 1916. See below, 39 Stat., 610, 
 as to proportionate ratio of staff officers.) 
 
 There is a conffict between the provisions of 
 the law fixing the total number of commissioned 
 officers on the active list of the Marine Corps, 
 and prescribing a method of determining the 
 
 1458 
 
Marine Corps. 
 
 PL 3. STATUTES AT LARGE. 
 
 Aug. 29, 1916. 
 
 portions and in accordance with computations 
 to be made by the Secretaiy of the Navy; but 
 as to the Marine Corps, when the actual number 
 is less than the authorized number, the distri- 
 bution of the shortage is a matter in the discre- 
 tion of the Secretary of the Navy. In the 
 exercise of this discretion, the Secretary' decides 
 that the actual number of commissioned 
 officers in the Marine Corps shall be distributed 
 between the various ranks in the same propor- 
 tion pro\'ided by said act of August 29, 1916, 
 with reference to the distribution of the author- 
 ized number, thus establishing a uniform rule 
 
 in this respect for the Na^•y and Marine Corps. 
 Under this ruling, only commissioned officers 
 actually in the regular 8er\-ice may be counted; 
 and no officer is actually in the service imtil he 
 has accepted his appointment. Computations 
 should be based on definite information as to 
 the actual number of officers in the ser\ice on a 
 given date, counting changes due to new 
 appointments, casualties, etc. (File 28687-5:1, 
 Sept. 7, 1917; see also file 28687-6:5, Aug. 19, 
 1918.) 
 
 Total authorized enlisted strength. — 
 See note to section 1596, Revised Statutes. 
 
 [1916, Aug. 29. Brigadier generals; additional numbers; filling vacancies,] 
 That brigadier generals shall be appointed from officers of the Marine Corps 
 senior in rank to lieutenant colonel: Provided further, That the promotion to 
 the grade of brigadier general of any officer now or hereafter carried as an 
 additional nmnber in the grade or with the rank of colonel shall be held to 
 fill a vacancy in the grade of brigadier general. — (39 Stat., 609, chap. 417.) 
 
 Promotion of additional number colo- 
 nel. — Any officer carried as an additional number 
 in the grade of colonel will, if promoted to the 
 grade of brigadier general, immediately become 
 a regular nimil^er in the latter grade, and will 
 continue to be carried as a regiilar number 
 therein, unless by operation of some other law 
 applicable to his specific case his status should 
 revert to that of an additional number in gi"ade. 
 (File 28687-1, Aug. 18, 1916.) 
 
 A colonel carried as an additional number by 
 xirtue of section 1605, Re\-ised Statutes, as 
 amended by act of June 16, 1906 (34 Stat., 296 ), 
 would cease to be an additional number upon 
 promotion to the gi-ade of brigadier general. 
 (File 28687-1, Aug. 18, 1916.) 
 
 A colonel, serving as Major General Com- 
 mandant of the Marine Corps imder the act of 
 December 19, 1913 (38 Stat., 201), would con- 
 tinue to be an additional number while so serv- 
 ing, although in the meantime promoted to the 
 gi-ade of brigadier general. (File 28687-1, 
 Aug. 18, 1916. See note to sec. 1601, R. S.) 
 
 If a colonel should be appointed to an exist- 
 ing vacancy in the position of Major General 
 Commandant at the time when the grade of 
 brigadier general was full, although said colonel 
 would thereupon become an additional number 
 in the grade of colonel, nevertheless he could 
 not under the law be promoted to the grade of 
 brigadier general unless a vacancy occurred 
 therein. Should a former Major General Com- 
 mandant be in the gi-ade of brigadier general as 
 an additional number, a vacancy thereafter 
 
 [1916, Aug. 29. Major General Commandant counted as senior to colonel.] 
 That in determining the officers with rank senior to colonel there shall be in- 
 cluded the officer serving as major general commandant. — (39 Stat., 609, chap. 
 
 417.) 
 
 occurring would be immediately fiUed, by 
 operation of law, by the additional number 
 brigadier general becoming a regular number in 
 that gi-ade. If thereafter another vacancy 
 should occur in the grade of brigadier general, 
 the additional number colonel 8er\ing as 
 Major General Commandant might legally be 
 promoted thereto, but he would become an 
 additional number brigadier general under the 
 act of December 19, 1913, and a vacancy would 
 stiU exist to which a regiilar niunber colonel 
 could be promoted. (File 28687-1, Aug. 18, 
 1916.) 
 
 Date of rank on promotion. — The date of 
 rank given officers of the Marine Corps on pro- 
 motion should ordinarily be the date of the 
 vacancy to which promoted; but in no case will 
 an officer permanently or temporarily promoted 
 be given rank fi'om a date earlier than his date 
 of rank in the lower grade. (File 28687-5:1, 
 Sept. 7, 1917. See note to sec. 1458, R. S.) 
 
 Vacancies resulting from the President's 
 order of March 26, 1917, increasing the author- 
 ized numl)er of enUsted men in the Marine 
 Corps, as authorized by this act (39 Stat., 612), 
 were created on the date of said order; and 
 vacancies resulting from the temporary increase 
 of enlisted men authorized by act of May 22, 
 1917, were created on the date of said act. 
 (File 28687-5:1, Sept. 7, 1917.) 
 
 Rank of brigadier generals and rear 
 admirals. — See note to section 1466, Re\ised 
 Statutes. 
 
 See below as to appointment of Major General 
 Commandant from rank of colonel; and 
 see above, as to promotion of additional 
 number colonel; see also note to section 
 1601, Revised Statutes. 
 
 This provision has the effect of making 
 the Major General Commandant one of the 
 authorized number of officers above the rank 
 of colonel, as though the law read, that there 
 shall be one major general commandant, and 
 so many brigadier generals, etc. (File 28687-1, 
 Aug. 18, 1916.) 
 
 1459 
 
Aug. 29, 1916, 
 
 rt. S. .STATUTES AT LARGE. 
 
 Marine Corps. 
 
 [1916, Aug. 29. Appointment as Major General Commandant.] That 
 appouitmonts horoaftcr made to the position of major general commandant 
 under the provisions of the Act approved December nineteenth, nuieteen 
 hundred and thirteen, entitled "An Act to make the tenure of office of the 
 major general commandant of the Marine Corps for a term of four years," 
 shall be made from oflicers of the active list of the Marme Corps not below the 
 rank of colonel.— (39 Stat., 609, chap. 417.) 
 
 Should the authorized num])er of officers senior 
 to colonel be full, this could not operate to 
 restrict the President 's discretion by requiring 
 him to appoint another brigadier general to 
 fill the vacancy and preventing him from 
 appointing a colonel should he desire to do so. 
 (File 28687-1, Aug. 18, 1916.) 
 
 See act of December 19, 1913 (38 Stat., 241), 
 aud note to section 1601, Revised Statutes. 
 Appointment from rank of colonel. — 
 This provision expressly confers upon the 
 President full discretion to fdl a vacancy in the 
 position of Major General Commandant from 
 officers of the rank of colonel as well as from 
 those having the rank of brigadier general. 
 
 [1916, Aug. 29. Kank of senior staff officers; counted as colonels.] That 
 the olhcers serving in the senior grade of the Adjutant and Inspector's, Quarter- 
 master's, and Paymaster's Departments shall, while serving therein, have the 
 rank, pay, and allowances of a brigadier general: And provided further, That 
 for the piu"pose of determining the number of officers in the various ranks as 
 herein provided such staff officers shall be counted as being of the rank of 
 colonel.— (39 Stat., 609-610, chap. 417.) 
 
 See note to section 1602, Revised Statutes. 
 
 [1916, Aug. 29. Permanent staff officers not eligible for line promotion.] 
 That officers holding permanent appointments in the staff departments shall 
 not be eligible for appointment to the grade of brigadier general of the line as 
 hereinbefore provided. — (39 Stat., 610, chap. 417.) 
 
 [1916, Aug. 29. Organization of staff departments; number of officers; 
 filling vacancies.] The total commissioned personnel of the active list of the 
 staff departments, whether serving therein under permanent appointments or 
 under temporary detail, as herein provided, shall be eight per centum of the 
 authorized commissioned strength of the IVIarine Corps, and of this total one- 
 fiftli shall constitute the adjutant and inspector's department, one-fifth the 
 paymaster's department, and tliree-fifths the quartermaster's department. 
 
 No further permanent appointments shall be made in any grade in any staff 
 department. Any vacancy hereafter occurring in the lower grade of any staff 
 department shall be filled by the detail of an officer of the line for a period of 
 four years unless sooner relieved; any vacancy hereafter occurring in the upper 
 grade of any staff department shall be filled by the appointment of an officer 
 with the rank of colonel holding a permanent appointment in the staff depart- 
 ment in which the vacancy exists, or of some other officer holding a permanent 
 appointment in such staff department in case there be no permanent staff 
 officer with the rank of colonel in that department, or of a colonel of the line 
 in case there be no officer holding a permanent appointment in such staff 
 department. Such appointments shall be made by the President and be for a 
 term of four years, and the officer so appointed shall be recommissioned in the 
 grade to which appointed. — (39 Stat., 610, chap. 417.) 
 
 1460 
 
Marine Corps. 
 
 Pt. S. STATUTES AT LARGE. 
 
 Aug. 29, 1916. 
 
 See note to section 1598, Revised Statutes. 
 
 Computations in staff departments. — 
 The provision of this act (39 Stat., 577) relating 
 to the disposition of final fractions does not in 
 terms apply to the distribution of the authorized 
 number of officers between the three staff de- 
 partments. The total number in the three 
 departments should be 8 per centum of the 
 authorized commissioned strength of the 
 Marine Corps, exclusive of additional niunbers. 
 WTiere counting the nearest whole number in 
 cases of final fi-actions in computing the number 
 
 for each department would increase the author- 
 ized number for the three departments by one, 
 and disregarding such fractions would leave a 
 shortage of two officers in the three departments, 
 held, that the final fi-actions will be disregarded 
 and the two officers remaining will be distri- 
 buted between the three departments by the 
 Secretary of the Naw, upon recommendation 
 of the Slajor General Commandant, in such 
 manner as mav be to the best interest of efficient 
 administration. (File 28687-5, Nov. 20, 1916.) 
 
 [1916, Aug. 29. Permanent staff officers reappointed in the line.] 
 
 This paragraph read as follows: 
 "That prior to June thirtieth, nineteen hun- 
 dred and eighteen, an officer holding a perma- 
 nent appointment in any staff department 
 may, upon his own application, with the ap- 
 proval of the President, be reappointed in the 
 line of the Marine Corps in the grade and with 
 the rank he would hold on the date of his reap- 
 pointment if he had remained continuously in 
 the Une: Provided, That no officer holding a 
 permanent appointment in any staff depart- 
 ment shall be recommissioned in the line with 
 the rank of colonel or lieutenant colonel: Pro- 
 
 vided further, That such staff officer shall, before 
 being reappointed in the line of the Marine 
 Corps as above pro^dded, perform line duties 
 for one year, at the expiration of which time 
 he shall as a prerequisite to reappointment in 
 the line be required to establish to the satis- 
 faction of an examining board consisting of 
 line officers of the Marine Corps his physical, 
 mental, and professional fitness for the per- 
 formance of line duty." (39 Stat., 610, chap. 
 417.') 
 
 It expired by its terms on June 30, 1918, 
 and is no longeer in force. 
 
 [1916, Aug. 29. Common promotion list, Marine Corps.] That for the 
 purpose of advancement in rank to and including the grade of colonel, all com- 
 missioned officers of the line and staff of the IVIarine Corps shall be placed on a 
 common list in the order of seniority each would hold had he remained con- 
 tinuously in the line. All advancements in rank to captain, major, lieutenant 
 colonel, and colonel shall, subject to the usual examinations, be made from 
 officers with the next junior respective rank, whether of the line or staff, in the 
 order in which their names appear on said list. — (39 Stat., 610, chap. 417.) 
 
 See note to section 1599, Revised Statutes, under "Laws relating to promotion construed." 
 
 [1916, Aug. 29. Second lieutenants, qualifications; age; examination; 
 former officers ; probation ; midshipmen failing to graduate.] Appointees to the 
 grade of second lieutenant, if appointed from civil life, shall be between the ages 
 of twenty and twenty-five years, and before receiving a commission in the 
 IVlarine Corps, each appointee shall establish to the satisfaction of the Secretary 
 of the Navy his mental, physical, moral, and professional qualifications for such 
 commission: Provided, The President of the United States be, and hereby is, 
 authorized, by and with the advice and consent of the Senate, to appoint as 
 second lieutenants on the active list in the United States Marine Corps, to take 
 rank at the foot of the list of second lieutenants as it stands at the date of rein- 
 statement, former officers of the Marine Corps who resigned from the naval 
 service in good standing: Provided, That they shall establish their moral, 
 physical, mental, and professional qualifications to perform the duties of that 
 grade to the satisfaction of the Secretary of the Navy: Provided further. That 
 the Secretary of the Navy, in his discretion, may waive the age limit in favor 
 of the aforesaid former officers of the Marine Corps: Provided further, That the 
 prior services of such officers and the service after reinstatement shall be not 
 less than thirty years before the age of retirement. That appointments from 
 noncommissioned officers of the Marine Corps and from civil life shall be for a 
 probationary period of two years and may be revoked at any time during that 
 
 1461 
 
Aug. 29, 1916. 
 
 rt. S. STATUTES AT LARGE. 
 
 Marine Corps. 
 
 period by the Secretary of the Navy: Provided further , That the rank of such 
 officers of the same date of appointment among themselves at the end of said 
 probationary period sliall, with the approval of the Secretary of the Navy, be 
 determined by the report of a board of Marine officers who shall conduct a 
 competitive professional examination under such rules as may be prescribed by 
 the Secretary of the Navy and the rank of such officers so determined shall be 
 as of date of original appointment with reference to other appointments to the 
 Marine Corps: Provided further, That no midshipman at the United States 
 Naval Academy or cadet at the United States Military Academy who fails to 
 graduate therefrom sliall be eligible for appointment as a commissioned officer 
 in the Marine Corps until after the graduation of the class of which he was a 
 member.— (39 Stat., 610-611, chap. 417.) 
 
 Probationary second lieutenants could be given 
 
 probationary appointments in higher 
 
 grades 'during the continuance of the 
 
 present war,' ' under the act of May 22, 
 
 1917, section 10 (40 Stat., 87). 
 See note to section 1599, Re\'ised Statutes. 
 
 Vacajicies required. — Where the number 
 of officers allowed a given grade, as in the case 
 of second lieut"nants, is fixed by law, such 
 number can not be exceeded. Accordingly, 
 
 bationary appointments does not apply to 
 former officers of the Marine Corps who are 
 reinstated as second lieutenants after they 
 have established, by examination, their ex- 
 isting qualifications to perform the duties of 
 that grade. (File 13261-544:1, Oct. 10, 1916.) 
 It is significant that the law requires ci\ilians 
 to establish their qualifications for a ' 'commis- 
 sion" in the Marine Corps; while it requires 
 former officers to establish their qualifications 
 for the ' 'duties " of the grade to which appointed 
 (File 13261-544: 1, Oct. 10, 1916.) 
 
 Promotion of probationary oflB.cer. — 
 The earliest date of commission in the gi'ade of 
 captain which may be assigned a probationary 
 officer of the Marine Corps is the date on which 
 he completed his probationary period. (File 
 29226-6:4, Apr. 28, 1921.) 
 
 midshipmen graduating from the Naval Acad- 
 emy can not be commissioned as second lieu- 
 tenants in excess of the number in that grade 
 fixed by law, even though the result would 
 overfill the grade at most only for a period of 
 a few days. (File 13261-486, June 8, 1916, 
 citing 23 Op. Attv. Gen., 30, 35; file 26521-67, 
 June 4, 1913; 26521-67:1, Dec. 4,_ 1913.) 
 
 Former oflS.cers. — The provision for pro- 
 
 [1916, Aug. 29. Warrant officers, Marine Corps.] That the warrant grades 
 of marine gunner and c{uartermaster clerk are hereby established, and the 
 appointment as herein prescribed of twenty marine gunners and twenty quarter- 
 master clerks is hereby authorized. Officers in those grades shall have the rank 
 and receive the pay, allowances and privileges of retirement of warrant officers 
 in the Navy. They shall be appointed from the noncommissioned officers of 
 the Marine Corps and clerks to quartermasters now serving as such and who 
 have performed field service.— (39 Stat., 611, chap. 417.) 
 
 By act of May 22, 1917, section 11 (40 Stat., 87), 
 the appointment was authorized of 30 
 marine gunners and 30 quartermaster's 
 clerks, additional to the number prescribed 
 by this paragraph. 
 
 act of June 4, 1920 (41 Stat., 830), the 
 authorized number of warrant officers in 
 the Marine Corps was increased by not 
 exceeding 50, to provide for the appoint- 
 ment of certain officers who held tempo- 
 rary commissions during the war. 
 
 By 
 
 See notes to sections 1405, 1487, and 1566, 
 Revised Statutes, as to pay and allowances, 
 etc., of warrant officers in the Navy; see 
 also act of March 4, 1917 (39 Stat., 1188), 
 as to foreign shore service pay of warrant 
 officers in the Marine Corps; and see act of 
 July 11, 1919 (41 Stat., 141), as to warrant 
 officers who served as commissioned 
 officers in the Marine Corps Reserve, and 
 note to section 1612, Revised Statutes. 
 
 [1916, Aug. 29. Retirement of colonels as brigadier generals.] 
 
 This paragraph reads as follows: 
 "That officers of the Marine Corps with the 
 rank of colonel who shall have served faithfully 
 for forty-five years on the active list shall, when 
 retired^ have the rank of brigadier general; and 
 such officers who shall hereafter be retired at 
 the age of sixty-four years before having served 
 for forty-five years, but who shall have served 
 faithfully on the active list until retired, shall, 
 
 on the completion of forty years fi'om their 
 entry in the naval service, have the rank of 
 brigadier general." (39 Stat., 611, chap. 417.) 
 
 It was expressly repealed by act of May 
 22, 1917, section 14 (40 Stat., 87). 
 
 See section 1481, Revised Statutes, for some- 
 what similar provision relating to staff officers 
 of the Navy. 
 
 1462 
 
Marine Corps. Pt.3. STATUTES AT LARGE. Aug. 29, 1916. 
 
 [1916, Aug. 29. Marine Corps, examinations for promotion.] The provisions 
 of sections fourteen hundred and ninety-three and fourteen hundred and ninety- 
 four of the Revised Statutes of the United States shall apply to the Marine 
 Corps.— (39 Stat., 611, chap. 417.) 
 
 See sections 1493-1494, and note to section 1599, Revised Statutes. 
 
 [1916, Aug. 29. Officers failing in examination for promotion.] In lieu of 
 suspension from promotion of any officer of the Marine Corps who hereafter 
 fails to pass a satisfactory professional examination for promotion, or who is 
 now under suspension from promotion by reason of such failure, such officer 
 shall suffer loss of numbers, upon approval of the recommendation of the 
 examining board, in the respective ranks, as follows: Lieutenant colonel, one; 
 major, two; captain, three; first lieutenant, five; second lieutenant, eight: 
 Provided, That any such officer shall be reexamined as soon as may be expedient 
 after the expiration of sLx months if he in the meantime again becomes due for 
 promotion, and if he does not in the meantime again become due for promotion 
 he shall be reexamined at such time anterior to again becoming due for promo- 
 tion as may be for the best interests of the service: Provided further, That if 
 any such officer fails to pass a satisfactory professional reexamination he shall 
 be honorably discharged with one year's pay from the Marine Corps. — (39 
 Stat., 611-612, chap. 417.) 
 
 See note to section 1599, Revised Statutes; and [ note thereto, for law relating to the Navy 
 
 see section 1505, Revised Statutes, and | on the same subject. 
 
 [1916, Aug. 29. Authorized enlisted strength. Marine Corps.] Hereafter 
 the number of enlisted men of the Marine Corps shall be exclusive of those sen- 
 tenced by court-martial to discharge. * * * 
 
 The President is authorized, when, in his judgment, it becomes necessary 
 to place the country in a complete state of preparedness, to further increase 
 the enlisted strength of the Marine Corps to seventeen thousand four hundred: 
 And provided. That the distribution in the various grades shall be in the same 
 proportion as that authorized at the time when the President avails himself 
 of the authority herein granted. — (39 Stat., 612, chap. 417.) 
 
 See note to section 1590, Revised Statutes, as to the number and grades of enlisted men in 
 the Marine Corps. 
 
 [1916, Aug. 29. Marine Band; organization and pay; competition with 
 civilians restricted.] That the band of the United States Marine Corps shall 
 consist of one leader, whose pay and allowances shall be those of a captain in 
 the Marine Corps; one second leader, whose pay shall be $150 per month and 
 who shall have the allowances of a sergeant major; ten principal musicians, 
 whose pay shall be $125 per month; twenty-five first-class musicians, whose 
 pay shall be $100 per month; twenty second-class musicians, whose pay shall 
 be $85 per month; and ten third-class musicians, whose pay shall be $70 per 
 month; such musicians of the band to have the allowances of a sergeant and 
 to have no increase in the rates of pay on account of length of service: Pro- 
 vided, That a member of the said band shall not, as an individual, furnish music 
 or accept an engagement to furnish music, when such furnishing of music 
 places him in competition with any civilian musician or musicians, and shall 
 
 1463 
 
Aug. 29, 1916. Pt. S. STATUTES AT LARGE. 
 
 not accept or receive remuneration for furnishing music except under special 
 circumstances when authorized by the President. — (39 Stat., 612, chap. 417.) 
 
 (39 Stat., 188), for other restrictions upon 
 enlisted men competing with civilians. 
 
 See notes to sections 1596 and 1613, Revised 
 Statutes; and see actvS of May 13, 1908 (35 
 Stat., 153), and June 3, 1916, section 35 
 
 [1916, Aug. 29. Sales to oflScers, etc., of subsistence stores.] Provisions, 
 ]VLvRiNE Corps: * * * That hereafter so much of this appropriation as 
 may be necessary may be applied for the purchase, for sale to officers, enlisted 
 men, and civilian employees, of such articles of subsistence stores as may from 
 time to time be designated and under such regulations as may be prescribed 
 by the Secretary of the Navy.— (39 Stat., 613, chap. 417.) 
 
 See act of March 4, 1913 (37 Stat., 909), and note thereto. 
 
 [1916, Aug. 29. Marine Corps training camps.] The Secretary of the 
 Navy is hereby authorized to establish and maintain at such places as he may 
 designate, and prescribe regulations for the government thereof, Marine Corps 
 training camps for the instruction of citizens of the United States who make 
 application and are designated for such training; no such camps to be in exist- 
 ence for a period longer than six weeks in each fiscal year, except in time of 
 actual or threatened war; to use Marine Corps and such other Government 
 property as he may deem necessary for the military training of such citizens 
 while in attendance at such camps. The Quartermaster's Department, United 
 States Marine Corps, is authorized to sell such articles of uniform clothing as 
 may be prescribed at cost price to the volunteer citizens who are designated 
 to participate in these instructions: Provided, That these citizens shall be 
 required to furnish at their own expense transportation and subsistence to and 
 from these camps, and subsistence while undergoing training therein. — (39 
 Stat., 614, chap. 417.) 
 
 [1916, Aug. 29. Navy yard employees; leaves of absence.] That each and 
 every employee of the navy yards, gun factories, naval stations, and arsenals 
 of the United States Government is hereby granted thirty days' leave of absence 
 each year, without forfeiture of pay during such leave : Provided further, That 
 it shall be lawful to allow pro rata leave only to those serving twelve consecutive 
 months or more : And provided further. That in all cases the heads of divisions 
 shall have discretion as to the time when the leave can best be allowed: And 
 provided further, That not more than thirty days' leave with pay shall be allowed 
 any such employee in one year: Provided further, That this provision shall not 
 be construed to deprive employees of any sick leave or legal holidays to which 
 they may now be entitled under existing law. — (39 Stat., 617-618, chap. 417.) 
 See note to section 1545, Revised Statutes. 
 
 [1916, Aug. 29. Government employees serving in National Guard and 
 
 Medical Reserve Corps.] That all officers and enlisted men of the National 
 
 Guard and of the Medical Reserve Corps of the Army who are Government 
 
 employees and who respond to the call of the President for service shall, at the 
 
 expiration of the military service to which they are called, be restored to the 
 
 positions occupied by them at the time of the call. — (39 Stat., 624, chap. 418.) 
 
 See note to section 416, Revised Statutes under 
 ' ' Honorably discharged soldiers or sailors " ; 
 and see act of June 3, 1916, section 80 (39 
 
 1464 
 
 Stat., 203), as to leaves of absence allowed 
 Government employees who are members 
 of the National Guard. 
 
PL S. STATUTES AT LARGE. Aug. 29, 1916. 
 
 [1916, Aug. 29. Sales of Army, Navy, and Marine Corps subsistence sup- 
 plies.] That hereafter the officers and enlisted men of the Navy and the 
 Marine Corps shall be permitted to purchase subsistence suppUes at the same 
 price as is charged the officers and the enlisted men of the Army; and the 
 officers and the enlisted men of the Army shall be permitted to purchase 
 subsistence supplies from the Navy and Marine Corps at the same price as is 
 charged the officers and the enlisted men of the Navy and Marine Corps. — 
 (39 Stat., 6.30, chap. 418.) 
 
 [1916, Aug. 29. Transportation of troops, etc., in time of war.] The 
 President, in time of war, is empowered, through the Secretary of War, to take 
 possession and assume control of any system or systems of transportation, or 
 any part thereof, and to utilize the same, to the exclusion as far as may be neces- 
 sary of all other traffic thereon, for the transfer or transportation of troops, war 
 material and equipment, or for such other purposes connected with the emer- 
 gency as may be needful or desirable. — -(39 Stat., 645, chap. 418.) 
 
 See act of February 4, 1887, section 6 (24 Stat., 380), as amended by act of August 29, 1916 
 (39 Stat., 604, chap. 417). 
 
 [1916, Aug. 29. Director of Civilian Marksmanship.] That the President 
 be, and he is hereby, authorized, in his discretion, to appoint, as Director of 
 Civilian Markmanship, under the direction of the Secretary of War, an officer 
 of the Army or of the Marine Corps. — 39 Stat., 648, chap. 418.) 
 
 [1916, Aug. 29, sec. 2. Council of National Defense.] That a Council of 
 National Defense is hereby established, for the coordination of industries and 
 resources for the national security and welfare, to consist of the Secretary of 
 War, the Secretary of the Navy, the Secretary of the Interior, the Secretary 
 of Agriculture, the Secretary of Commerce, and the Secretary of Labor. 
 
 That the Council of National Defense shall nominate to the President, and 
 the President shall appoint, an advisory commission, consisting of not more 
 than seven persons, each of whom shall have special knowledge of some industry, 
 public utility, or the development of some natural resource, or be otherwise 
 specially qualified, in the opinion of the council, for the performance of the 
 duties hereinafter provided. The members of the advisory commission shaU 
 serve without compensation, but shall be allowed actual expenses of travel and 
 subsistence when attending meetings of the commission or engaged in investi- 
 gations pertaining to its activities. The advisory commission shall hold such 
 meetings as shall be called by the council or be provided by the rules and regu- 
 lations adopted by the council for the conduct of its work. — (39 Stat., 649, 
 chap. 418.) 
 
 That it shall be the duty of the Council of National Defense to supervise 
 and direct investigations and make recommendations to the President and the 
 heads of executive departments as to the location of railroads with reference 
 to the frontier of the United States so as to render possible expeditious concen- 
 tration of troops and supplies to points of defense; the coordination of military, 
 industrial, and commercial purposes in the location of extensive highways and 
 branch lines of railroad; the utilization of waterways; the mobilization of 
 military and naval resources for defense; the increase of domestic production 
 of articles and materials essential to the support of armies and of the people 
 
 1465 
 
Sept. 7, 1916. Pi. .]. STATUTES A T LARGE. 
 
 during the interruption of foreign commerce; the development of seagoing 
 transportation; data as to amounts, location, method and means of production, 
 and availability of military supplies; the giving of information to producers 
 and manufacturers as to the class of supplies needed by the military and other 
 services of the Government, the requirements relating thereto, and the creation 
 of relations which will render possible in time of need the immediate concentra- 
 tion and utilization of the resources of the Nation. — (39 Stat., 649-650, chap. 
 418.) 
 
 That the Council of National Defense shall adopt rules and regulations 
 for the conduct of its work, which rules and regulations shall be subject to the 
 approval of the President, and shall provide for the work of the advisory com- 
 mission to the end that the special knowledge of such commission may be 
 developed by suitable investigation, research, and inquiry and made available 
 in conference and report for the use of the council ; and the council may organize 
 subordinate bodies for its assistance in special investigations, either by the 
 employment of experts or by the creation of committees of specially qualified 
 persons to serve without compensation, but to direct the investigations of 
 experts so employed. 
 
 * * * Reports shall be submitted by all subordinate bodies and by the 
 advisory commission to the council, and from time to time the council shall 
 report to the President or to the heads of executive departments upon special 
 inquiries or subjects appropriate thereto, and an annual report to the Congress 
 shall be submitted through the President, including as full a statement of the 
 activities of the coimcil and the agencies subordinate to it as is consistent with 
 the public interest, including an itemized accoimt of the expenditures made by 
 the council or authorized by it, in as full detail as the public interest will permit: 
 Provided, however, That when deemed proper the President may authorize, in 
 amounts stipulated by him, mivouchered expenditures and report the gross 
 sums so authorized not itemized. — (39 Stat., 650, chap. 418.) 
 
 of the Council of National Defense, but that 
 such powers and duties shall remain as pre- 
 scribed by the Act creating said council, 
 approved August twenty-ninth, nineteen 
 hundred and sixteen." 
 
 By act of June 15, 1917 (40 Stat., 182), which 
 contained appropriations for the council 
 of National Defense, it was pro\'ided "that 
 in the expenditure of said moneys the ex- 
 istence of a state of war shall not be con- 
 strued as enlarging the powers or duties 
 
 [1916, Sept. 7. United States Shipping Board.] Sec. 4. * * * xhe 
 President, upon the request of the board, may authorize the detail of officers 
 of the military, naval, or other services of the United States for such duties 
 as the board may deem necessary in connection with its business. * * * — 
 (39 Stat., 729, chap. 451.) 
 
 Sec. 5. That the board, with the approval of the President, is authorized 
 to have constructed and equipped in American shipyards and navy yards or 
 elsew^here, giving preference, other things being equal, to domestic yards, or to 
 purchase, lease, or charter, vessels suitable, as far as the commercial require- 
 ments of the marine trade of the United States may permit, for use as naval 
 auxiliaries or Army transports, or for other naval or military purposes, and to 
 make necessary repairs on and alterations of such vessels. * * * ^ — (39 
 Stat., 730, chap. 451.) 
 
 1466 
 
Employees' Compensation. Ft. 3. STATUTES AT LARGE. Sept. 7, 1916. 
 
 Section 5 was expressly repealed by act of 
 June 5, 1920 (41 Stat., 988), with certain 
 limitations relating to contracts previously 
 entered into, construction already com- 
 menced, etc. 
 
 By act of March 4, 1921 (41 Stat., 1382-1383), 
 it was provided that after the approval of 
 said act, ' ' no contract shall be entered into 
 or work undertaken for the construction of 
 any additional vessels for the United States 
 Shipping Board or the United States Ship- 
 ping Board Emergency Fleet Corporation." 
 
 Sec. 6. That the President may transfer either permanently or for limited 
 periods to the board such vessels belonging to the War or Navy Department as 
 are suitable for commercial uses and not required for military or naval use in 
 time of peace, and cause to be transferred to the board vessels owned by the 
 Panama Railroad Company and not required in its business. * * *. — (39 
 Stat., 730, chap. 451.) 
 
 Sec. 10. That the President, upon giving to the person interested such 
 reasonable notice in writing as in his judgment the circumstances permit, may 
 take possession, absolutely or temporarily, for any naval or military purpose, 
 of any vessel purchased, leased, or chartered from the board : Provided, That if, 
 in the judgment of the President, an emergency exists requiring such action he 
 may take possession of any such vessel without notice. 
 
 Thereafter, upon ascertainment by agreement or otherwise, the United 
 States shall pay the person interested the fair actual value based upon normal 
 conditions at the time of taking of the interest of such person in every vessel 
 taken absolutely, or if taken for a limited period, the fair charter value under 
 normal conditions for such period. In case of disagreement as to such fair 
 value it shall be determined by appraisers, one to be appointed by the board, 
 one by the person interested, and a third by the two so appointed. The find- 
 ing of such appraisers shall be final and binding upon both parties. * * *. — 
 (39 Stat., 731, chap. 451.) 
 
 Sec. 12. * * * It shall examine the navigation laws of the United 
 States and the rules and regulations thereunder, and make such recommenda- 
 tions to the Congress as it deems proper for the amendment, improvement, and 
 revision of such laws, and for the development of the American merchant 
 marme. * * *.— (39 Stat., 732, chap. 451.) 
 
 [1916, Sept. 7. Employees, compensation for injuries, etc.] That the 
 United States shall pay compensation as hereinafter specified for the dis- 
 ability or death of an employee resulting from a personal injury sustained 
 while in the performance of his duty, but no compensation shall be paid if the 
 injury or death is caused by the willful misconduct of the employee or by the 
 employee's intention to bring about the injury or death of himself or of another, 
 or if intoxication of the injured employee is the proximate cause of the injury 
 or death.— (39 Stat., 742-743, chap. 458.) 
 
 Sec. 2. That during the first three days of disability the employee shall 
 not be entitled to compensation except as provided in section nine. No com- 
 pensation shall at any time be paid for such period. * * * 
 
 Sec. 7. That as long as the employee is in receipt of compensation under 
 this Act, or, if he has been paid a lump sum in commutation of installment 
 payments, until the expiration of the period during which such installment 
 payments would have continued, he shall not receive from the United States 
 any salary, pay, or remuneration whatsoever except in return for services 
 
 54641°— 22 93 1467 
 
Sept. 7, 1916. Pi. S. STATUTES AT LARGE. Employees' Compensation. 
 
 actually performed, and except pensions for service in the Army or Navy of the 
 United States. 
 
 Sec. 8. That if at the time the disability begins the employee has annual or 
 sick leave to his credit he may, subject to the approval of the head of the 
 department, use such leave until it is exhausted, in which case his compensa- 
 tion shall begin on the fourth day of disability after the annual or sick leave 
 has ceased. — (39 Stat., 743, chap. 458.) 
 
 Sec. 9. That immediately after an injury sustained by an employee while 
 in the performance of his duty, whether or not disability has arisen, and for a 
 reasonable time thereafter, the United States shall furnish to such employee 
 reasonable medical, surgical, and hospital services and supplies unless he refuses 
 to accept them. Such services and supplies shall be furnished by United States 
 medical officers and hospitals, but where this is not practicable shall be furnished 
 by private physicians and hospitals designated or approved by the commis- 
 sion and paid for from the employees' compensation fund. If necessary for 
 the secm-ing of proper medical, surgical, and hospital treatment, the emploj^^ee, 
 in the discretion of the commission, may be furnished transportation at the 
 expense of the employees' compensation fund. * * *. — (39 Stat., 743- 
 744, chap. 458.) 
 
 Sec. 15. That every employee mjm-ed in the performance of his duty, or 
 some one on his behalf, shall, within forty-eight hours after the injmy, give 
 written notice thereof to the immediate superior of the employee. Such 
 notice shall be given by delivering it personally or by depositing it properly 
 stamped and addressed in the mail. — (39 Stat., 746, chap. 458.) 
 
 Sec. 16. That the notice shall state the name and address of the employee, 
 the year, month, day, and hour when and the particular locality where the 
 injmy occurred, and the cause and nature of the injury, and shall be signed by 
 and contain the address of the person giving the notice. 
 
 Sec. 17. That unless notice is given within the time specified or unless 
 the immediate superior has actual knowledge of the injury, no compensation 
 shall be allowed, but for any reasonable cause shown, the commission may 
 allow compensation if the notice is filed within one year after the injury. 
 
 Sec. 18. That no compensation under this Act shall be allowed to any 
 person, except as provided in section thirty-eight, unless he or some one on 
 his behalf shall, \vithin the time specified iii section twenty, make a written 
 claim therefor. Such claim shall be made by delivermg it at the office of the 
 commission or to any commissioner or to any person whom the commission 
 may by regulation designate, or by depositing it in the mail properly stamped 
 and addressed to the commission or to any person whom the commission may 
 by regulation designate. 
 
 Sec. 19. That every claim shall be made on forms to be furnished by the 
 commission and shall contam all the information required by the commission. 
 Each claim shall be sworn to by the person entitled to compensation or by the 
 person acting on his behalf, and, except in case of death, shall be accompanied 
 by a certificate of the employee's physician stating the nature of the injury 
 and the nature and probable extent of the disability. For any reasonable 
 cause shown the commission may waive the provisions of this section. — (39 
 Stat., 746, chap. 458.) 
 
 1468 
 
Employees' Compensation. Pt. 3. STATUTES AT LARGE. Sept. 7, 1916. 
 
 Sec. 20. That all original claims for compensation for disability shall be 
 made within sixty days after the injury. All original claims for compensation 
 for death shall be made within one year after the death. For any reasonable 
 cause shown the commission may allow original claims for compensation for 
 disability to be made at any time within one year. * * * 
 
 Sec. 24. That immediately after an injury to an employee resulting in his 
 death or in his probable disability, his immediate superior shall make a report 
 to the commission containing such information as the commission may require, 
 and shall thereafter make such supplementary reports as the commission may 
 require * * *.— (39 Stat., 747, chap. 458.) 
 
 Sec. 28. That a commission is hereby created, to be known as the United 
 States Employees' Compensation Commission, and to be composed of three 
 commissioners appointed by the President, by and with the advice and consent 
 of the Senate, one of whom shall be designated by the President as chairman. 
 * * * The principal office of said commission shall be in Washington, 
 District of Columbia, but the said commission is authorized to perform its 
 work at any place deemed necessary by said commission, subject to the restric- 
 tions and limitations of this Act. * * *. — (39 Stat., 748, chap. 458.) 
 
 Sec. 32. That the commission is authorized to make necessary rules and 
 regulations for the enforcement of this Act, and shall decide all questions 
 arising under this Act. * * * 
 
 Sec. 36. The commission, upon consideration of the claim presented by 
 the beneficiary, and the report furnished by the immediate superior and the 
 completion of such investigation as it may deem necessary, shall determine 
 and make a finding of facts thereon andmake an award for or against payment 
 of the compensation provided for in this Act. Compensation when awarded 
 shall be paid from the employees' compensation fund. * * *. — (39 Stat., 
 749, chap. 458.) 
 
 See act of May 22, 1920, section 5 (41 Stat., 617), 
 as to disability retirement of civil em- 
 ployees; and see act of October 6, 1917, 
 
 section 312 (40 Stat., 408), as to members 
 of the Navy Nurse Corps (female). 
 
 [1916, Sept. 8, sec. 4. Special estimates must conform to law.] That the 
 Secretary of the Treasury shall not hereafter transmit special or additional 
 estimates of appropriations to Congress unless they shall conform to the 
 requirements of section four of the Act approved June twenty-second, nineteen 
 hundred and six (Thirty-fourth Statutes, page four hundred and forty-eight) . — 
 (39 Stat., 830, chap. 464.) 
 
 See act of June 22, 1906, Section 4 (34 Stat., 448^49), and references thereunder. 
 
 [1917, Feb. 14. Threats against the President.] That any person who 
 knowingly and wilKully deposits or causes to be deposited for conveyance in 
 the mail or for delivery from any post office or by any letter carrier any letter, 
 paper, writmg, print, missive, or document containing any threat to take the 
 life of or to inflict bodily harm upon the President of the United States, or 
 who knowingly and willfully otherwise makes any such threat against the 
 President, shall upon conviction be fiuaed not exceeding SI, 000 or imprisoned 
 not exceeding five years, or both. — (39 Stat., 919, chap. 64.) 
 
 [1917, Mar. 3. Bureau of Eflaciency; assistance of departments.] Officers 
 and employees of the executive departments and other estabhshments shall 
 
 1469 
 
Mar. 3, 1917. Pt. S. STATUTES AT LARGE. Virgin Islands. 
 
 furnish authorized representatives of the Bureau of Efficiency with all infor- 
 mation that the bureau may require for the performance of the duties imposed 
 on it by law, and shall give such representatives access to all records and papers 
 that may be needed for that purpose. — (39 Stat., 1081, chap, 163.) 
 
 [1917, Mar. 3. Payments to Government employees by private parties 
 restricted.] That on and after July first, nineteen hundred and nineteen, no 
 Goveriuuent ofTicial or employee shall receive any salary in connection with 
 his services as such an ofhcial or employee from any source other than the 
 Government of the United States, except as may be contributed out of the 
 treasury of any State, county, or municipality, and no person, association, or 
 corporation shall make any contribution to, or in any way supplement the salary 
 of, any Government oflTicial or employee for the services performed by him for 
 the Government of the United States. Any person violating any of the terms 
 of this proviso shall be deemed guilty of a misdemeanor, and upon conviction 
 thereof shall be punished by a fine of not less than $1,000 or imprisonment for 
 not less than six months, or by both such fine and imprisonment as the court 
 may determine. — (39 Stat., 1106, chap. 163.) 
 
 See sections 1763-1765, Revised Statutes, as to double salaries and extra allowances to Gov- 
 ernment employees. 
 
 [1917, Mar. 3. Virgin Islands; temporary government.] That, except as 
 hereinafter provided, all military, civil, and judicial powers necessary to govern 
 the West Indian Islands acquired from Denmark shall be vested in a governor 
 and in. such person or persons as the President may appoint, and shall be exer- 
 cised in such manner as the President shall direct until Congress shall provide 
 for the government of said islands: Provided, That the President may assign 
 an officer of the Army or Navy to serve as such governor and perform the duties 
 appertaining to said office: And 'provided further , That the governor of the said 
 islands shall be appointed by and with the advice and consent of the Senate: 
 And provided further , That the compensation of aU persons appointed under this 
 Act shall be fixed by the President.— (39 Stat., 1132, chap. 171.) 
 
 Sec. 2. That until Congress shall otherwise provide, in so far as compatible 
 with the changed sovereignty and not in conflict with the provisions of this 
 Act, the laws regulating elections and the electoral franchise as set forth in the 
 code of laws published at Amahenborg the sixth day of April, nineteen hundred 
 and six, and the other local laws, in force and effect in said islands on the seven- 
 teenth day of January, nineteen hundred and seventeen, shall remain in force 
 and effect in said islands, and the same shall be administered by the civil offi- 
 cials and through the local judicial tribunals established in said islands, respec- 
 tively; and the orders, judgments, and decrees of said judicial tribunals shall be 
 duly enforced. With the approval of the President, or under such rules and 
 regulations as the President may prescribe, any of said laws may be repealed, 
 altered, or amended by the colonial council having jurisdiction. The jurisdic- 
 tion of the judicial tribunals of said islands shall extend to all judicial proceed- 
 ings and controversies in said islands to which the United States or any citizen 
 thereof may be a party. In all cases arising in the said West Indian Islands 
 and now reviewable by the courts of Denmark, writs of error and appeals shall 
 be to the Circuit Court of Appeals for the Thhd Circuit, and, except as provided 
 
 1470 
 
Virgin Islands. Ft. 3. STATUTES AT LARGE. Mar. 3, 1917. 
 
 in sections two hundred and thirty-nine and two hundred and forty of the Judi- 
 cial Code, the judgments, orders, and decrees of such court shall be final in all 
 such cases.— (39 Stat., 1132-1133, chap. 171.) 
 
 Sec. 3. That on and after the passage of this Act there shall be levied, 
 collected, and paid upon all articles coming into the United States or its pos- 
 sessions, from the West Indian Islands ceded to the United States by Denmark, 
 the rates of duty and internal-revenue taxes which are required to be levied, 
 collected, and paid upon like articles imported from foreign countries: Provided, 
 That all articles, the growth or product of, or manufactured in such islands 
 from materials the growth or product of such islands or of the United States, 
 or of both, or which do not contain foreign materials to the value of more than 
 twenty per centum of their total value, upon which no drawback of customs 
 duties has been allowed therein, coming into the United States from such 
 islands shall hereafter be admitted free of duty. 
 
 Sec. 4. That until Congress shall otherwise provide aU laws now imposing 
 taxes in the said West Indian Islands, including the customs laws and regula- 
 tions, shall, in so far as compatible with the changed sovereignty and not other- 
 wise herein provided, continue in force and effect, except that articles the 
 growth, product, or manufacture of the United States shall be admitted there 
 free of duty: Provided, That upon exportation of sugar to any foreign country, 
 or the shipment thereof to the United States or any of its possessions, there 
 shall be levied, collected, and paid thereon an export duty of $8 per ton of two 
 thousand pounds irrespective of polariscope test, in lieu of any export tax now 
 required by law. 
 
 Sec. 5. That the duties and taxes collected in pursuance of this Act shall 
 not be covered into the general fund of the Treasury of the United States, but 
 shall be used and expended for the government and benefit of said islands 
 under such rules and regulations as the President may prescribe. 
 
 Sec. 6. That for the purpose of taking over and occupying said islands and 
 of carrying this Act into effect and to meet any deficit in the revenues of the 
 said islands resulting from the provisions of this Act the sum of $100,000 is 
 hereby appropriated, to be paid out of any moneys in the Treasury not other- 
 wise appropriated, and to be applied under the direction of the President of 
 the United States. 
 
 Sec. 7. That the sum of S25,000,000 is hereby appropriated, out of any 
 moneys in the Treasury not otherwise appropriated, to be paid in the city of 
 Washington to the diplomatic representative or other agent of His Majesty the 
 King of Denmark duly authorized to receive said money, in full consideration 
 of the cession of the Danish West Indian Islands to the United States made by 
 the convention between the United States of America and His Majesty the King 
 of Denmark entered into August fourth, nineteen hundred and sixteen, and 
 ratified by the Senate of the United States on the seventh day of September, 
 nineteen hundred and sixteen. — (39 Stat., 1133, chap. 171.) 
 
 Sec. 8. That this Act, with the exception of section seven, shall be in 
 force and effect and become operative immediately upon the payment by the 
 United States of said sum of $25,000,000. The fact and date of such payment 
 shall thereupon be made public by a proclamation issued by the President and 
 published in the said Danish West Indian Islands and in the United States. 
 
 1471 
 
Mar. 4, 1917. 
 
 PL S. STATUTES AT LARGE. 
 
 Section seven shall become immediately effective and the appropriation thereby 
 provided for shall be immediately available, — (39 Stat., 1133-1134, chap. 171.) 
 
 See note to section I860, Revised Statutes^ as 
 
 to status of Virp^in Islands, and appoint- 
 
 mont of naval olliccr as jud.2:e therein; 
 
 Citizenship in Virgin Islands. — Certain 
 
 Danish citizens residing in the Virgin Islands 
 
 were to be held "to have accepted citizensliip 
 
 in the United States," and provision was made 
 for the naturalization of others, by convention 
 between the United States and Denmark, pro- 
 claimed January 2.5, 1917 (39 Stat., 1706, 1721). 
 (See file 26252-143:3, July 14, 1919.) 
 
 [1917, Mar. 4, Naval examining and retiring boards on foreign stations.] 
 That hereafter the Secretary of the Navy may authorize the senior officer 
 present, or other commanding officer, on a foreign station to order boards of 
 medical examiners, examining boards, and retiring boards for the examination 
 of such candidates for appointment, promotion, and retirement in the Navy and 
 Marine Corps as may be serving in such officer's command and may be directed 
 to appear before any such board. — (39 Stat., 1171, chap. 180.) 
 
 This paragraph modifies sections 1370, 1379, 
 1448, 1493, 1496, 1599, and 1622, Revised 
 Statutes, and subsequent laws relating to 
 appointments and promotions in the Na^^y. 
 The words "foreign station" in this para- 
 graph are not limited to waters, ports, and 
 
 stations in foreign countries. Commanding 
 officers of naval forces outside of the continental 
 limits of the United States, including the com- 
 mander in chief of the Pacific Fleet,- may law- 
 fully be empowered to order the boards men- 
 tioned. (File 26521-186:30, Oct. 8, 1920.) 
 
 1915, and August 29, 1916, but without the 
 word "hereafter" which was embodied in 
 this paragraph. 
 
 [1917, Mar. 4. Naval Home sales, etc., credited to naval pension fund.] 
 That all moneys derived from the sale of material at the Naval Home, which 
 was originally purchased from moneys appropriated from the income from the 
 naval pension fund, and all moneys derived from the rental of Naval Home 
 property, shall hereafter be turned into the naval pension fund. — (39 Stat., 1175, 
 chap. 180.) 
 
 See sections 4750 and 4810, Revised Statutes, 
 
 and notes thereto. 
 Similar pro\dsion8 were contained in naval 
 
 appropriation acts of June 30, 1914, March 3, 
 
 [1917, Mar. 4. Shore pay, warrant officers.] Hereafter the pay of warrant 
 officers while on shore duty during the fourth three years' service shall be 
 $1,750 per annum.— (39 Stat., 1181, chap. 180.) 
 
 See note to section 1556, Revised Statutes, as to pay of warrant officers. 
 
 [1917, Mar. 4. Advances of pay to naval officers.] Hereafter advances of 
 pay not to exceed three months' pay in any one case may be made to officers 
 ordered to and from sea duty and to and from shore duty beyond the seas, 
 under such regulations as the Secretary of the Navy may prescribe. — (39 Stat., 
 1181-1 182,chap. 180.) 
 
 See section 1563, Revised Statutes, and note thereto. 
 
 [1917, Mar. 4. Appointment of midshipmen from enlisted men.] Hereafter, 
 in addition to the appointment of midshipmen to the United States Naval 
 Academy, as now prescribed by law, the Secretary of the Navy is allowed one 
 hundred appointments annually, instead of twenty-five as now prescribed by 
 law, to be appointed from the enlisted men of the Navy who are citizens of 
 the United States, and not more than twenty years of age on the date of en- 
 trance to the Naval Academy, and who shall have served not less than one year 
 as enlisted men on the date of entrance: Provided, Thsbt such appointments 
 shall be made in the order of merit from candidates who have, in competition 
 
 1472 
 
PL 3. STATUTES AT LARGE. Mar. 4, 1917. 
 
 with each other, passed the mental examination now or hereafter required by 
 law for entrance to the Naval Academy, and who passed the physical examina- 
 tion before entrance under existing laws. — (39 Stat., 1182, chap. 180.) 
 
 The act of December 20, 1917 (40 Stat., 430), 
 as amended and reenacted by act of July 
 11, 1919 (41 Stat., 140), authorized the 
 appointment of midshipmen from con- 
 gressional districts, etc., "and one hun- 
 
 dred appointed annually from enlisted 
 men of the Navy, and members of the 
 Naval Reserve Force on active duty, as 
 now authorized by law. " 
 See note to section 1513, Revised Statutes. 
 
 [1917, Mar. 4. Examinations of staff officers for advancement ; dental officers 
 credited with prior service.] Hereafter all laws relating to the examination of 
 officers of the Navy for promotion shall be construed to apply to the regular 
 advancement of staff officers to higher ranks on the active list, the same as 
 though such advancements in rank were promotions to higher grades : Provided, 
 That nothing in this paragraph shall be construed as in any way affecting the 
 origmal appointments of officers to the Dental Corps as provided in the Act 
 approved August twenty-ninth, nineteen hundred and sixteen, making appro- 
 priations for the naval service for the fiscal year ending June thirtieth, nineteen 
 hundred and seventeen, and for other purposes, and the time served by dental 
 surgeons as acting or acting assistant dental surgeons shall be reckoned in 
 computing the increased service pay and service for promotion of such as are 
 commissioned under said Act. — (39 Stat., 1182, chap. 180.) 
 
 The first part of this paragraph was repeated, 
 with additions, by act of May 22, 1917, sec- 
 tion 20 (40 Stat., 89-90). 
 
 As to promotion of dental officers, see act of 
 
 August 29, 1916 (39 Stat., 573-574), as 
 amended and reenacted by act of July 1, 
 1918 (40 Stat., 708-710). 
 
 [1917, Mar. 4. Forging, etc., discharge certificates.] Whoever shall forge, 
 counterfeit, or falsely alter any certificate of discharge from the military or 
 naval service of the United States, or shall in any manner aid or assist in forg- 
 ing, counterfeiting, or falsely altering any such certificate, or shall use, unlaw- 
 fully have in his possession, exhibit, or cause to be used or exhibited, any such 
 forged, counterfeited, or falsely altered certificate, knowing the same to be 
 forged, counterfeited, or falsely altered, shall be fined not more than $1,000 or 
 imprisoned not more than one year, or both, in the discretion of the court. — (39 
 Stat., 1182, chap. 180.) 
 
 See sections 1426-1427, Re\T.sed Statutes, and notes thereto; and see Criminal Code, Act 
 of March 4, 1909, section 28 (35 Stat., 1094). 
 
 [1917, Mar. 4. Keserve material, Navy.] For procuring apparatus and 
 materials (other than ordnance materials and medical stores) , as a war reserve 
 necessary to be carried in the supply departments for the purpose of fitting 
 out vessels of the fleet and merchant auxiliaries in time of war or when, m the 
 opinion of the President, a national emergency exists, to be immediately available 
 and to continue available until expended, $3,000,000: Provided, That, to pre- 
 vent deterioration such materials shall be used as required in time of peace, and 
 when so used reimbursement shall be made to this appropriation from current 
 naval appropriations in order that additional stocks may be procured. — (39 
 Stat., 1183, chap. 180.) 
 
 Similar provision was contained in act of June See section 3718, Revised Statutes, and note 
 
 15, 1917 (40 Stat., 211). 
 
 thereto. 
 
 1473 
 
Mar. 4. 1917. Pt. 3. STATUTES AT LARGE. 
 
 [1917, Mar. 4. Rank of assistant civil engineers.] Officers of the Corps of 
 Civil Eu«;iiicors hereafter a])p()iiited shall, from the date of their original appoint- 
 ment, take rank and precedence with Lieutenants (junior grade). — (39 Stat.^ 
 1184, chap. 180.) 
 
 See note to section 1478, Revised Statutes. 
 
 [1917, Mar. 4. Navy mail clerks on shore.] That the provisions of the Act 
 of IVIay twenty-seventh, nineteen hundred and eight (Thirty-fifth Statutes, 
 pages four hundred and seventeen and four hundred and eighteen) , as amended 
 by the Act of August twenty-fourth, nineteen hundred and twelve (Thirty- 
 seventh Statutes, page five hundred and sixty) , are hereby extended to author- 
 ize the designation of enlisted men of the Navy or Marine Corps as Navy mail 
 clerks and assistant Navy mail clerks with expeditionary forces on shore. — ■ 
 (39 Stat., 1188, chap. 180.) 
 
 See act of May 27, 1908 (35 Stat.. 417^18), and amendments noted thereunder. 
 
 [1917, Mar. 4. Warrant officers, Marine Corps; foreign shore service pay.] 
 That marine gunners and quartermaster clerks of the IMarine Corps assigned 
 to foreign shore service shall hereafter be entitled to the same increased com- 
 pensation and under the same conditions as is now or hereafter allowed by law 
 to commissioned officers of the IVIarine Corps. — (39 Stat., 1188, chap. 180.) 
 
 See note to section 1612, Revised Statutes, as to pay of the Marine Corps; and see act of 
 August 29, 1916 (39 Stat., 611). 
 
 [1917, Mar. 4. Exchange of sewing machines, etc.] That hereafter worn-out 
 
 sewing machines, machinery, rubber tires, and band instruments may be 
 
 exchanged in part payment for the purchase of like articles. — (39 Stat., 1189, 
 
 chap. 180.) 
 
 This was a proviso following appropriation for " Clothing, Marine Corps. " 
 See note to section 418, Revised Statutes. 
 
 [1917, Mar. 4. Pay of enlisted men on clerical duty, marine headquarters.] 
 That hereafter no part of the pay and allowances authorized for enlisted men 
 detailed as clerks and messengers in the office of the IVIajor General Command- 
 ant and the several staff offices shall be forfeited when granted furlough for 
 not exceeding thirty days in each calendar year. — (39 Stat., 1191, chap. 180.) 
 
 By section 1612, Revised Statutes, enlisted 
 
 men of the Marine Corps are entitled to 
 
 the same pay as enlisted men of the A rmy ; 
 
 by act of June 4, 1920, section 4 (41 Stat., 
 
 761), amending act of June 3, 1916, section 4 
 
 (39 Stat., 167), it was provided, with refer- 
 ence to the Army, that "all laws and parts 
 of laws providing for extra duty for enlisted 
 men are repealed, to take effect July 1, 
 1920." 
 
 [1917, Mar. 4. Eight hour law suspended in national emergency.] That in 
 case of national emergency the President is authorized to suspend provisions 
 of law prohibiting more than eight hours labor in any one day of persons en- 
 gaged upon work covered by contracts with the United States : Provided further, 
 That the wages of persons employed upon such contracts shall be computed on 
 a basic day rate of eight hours work, with overtime rates to be paid for at not 
 less than time and one-half for all hours work in excess of eight hours. — (39 
 Stat., 1192, chap. 180.) 
 
 See act of August 1, 1892 (27 Stat., 340), as 
 amended and reenacted by act of March 3, 
 1913 (37 Stat., 726-727);" and see act of 
 
 June 19, 1912 (37 Stat., 137-138), and sec- 
 tion 3738, Revised Statutes. 
 
 1474 
 
Ft. 3. STATUTES AT LARGE. Mar. 4, 1917. 
 
 [1917, Mar. 4. Procurement of ships and material during war; changes 
 in contracts; commandeering factories, etc.] (a) That the word ''person" as 
 used in paragraphs (b), (c), next hereafter shall include any individual, trustee, 
 firm, association, company, or corporation. The word "ship" shall include 
 any boat, vessel, submarine, or any form of aircraft, and the parts thereof. 
 The words "war material" shall include arms, -armament, ammunition, stores, 
 supplies, and equipment for ships and airplanes, and everything required for or 
 in connection with the production thereof. The word "factory" shall include 
 any factory, workshop, engine w^orks, building used for manufacture, assembling, 
 construction, or any process, and any shipyard or dockyard. The words 
 "United States" shall include the Canal Zone and all territory and w'aters, 
 continental and insular, subject to the jurisdiction of the United States. — (39 
 Stat., 1192-1193, chap. 180.) 
 
 (b) That in time of war, or of national emergency arising prior to March 
 first, nineteen hundred and eighteen, to be determined by the President by 
 proclamation, the President is hereby authorized and empowered, in addition 
 to all other existing provisions of law^: 
 
 First. Within the limits of the amounts appropriated therefor, to place an 
 order with any person for such ships or w^ar material as the necessities of the 
 Government, to be determined by the President, may require and which are 
 of the nature, kind, and quantity usually produced or capable of being produced 
 by such person. Compliance with all such orders shall be obligatory on any 
 person to wiiom such order is given, and such order shall take precedence over 
 all other orders and contracts theretofore placed wnth such person. If any 
 person owning, leasing, or operating any factory equipped for the building or 
 production of ships or war material for the Navy shall refuse or fail to give to 
 the United States such preference in the execution of such an order, or shall 
 refuse to build, supply, furnish, or manufacture the kind, quantity, or quality of 
 ships or war material so ordered at such reasonable price as shall be deter- 
 mined by the President, the President may take immediate possession of any 
 factory of such person, or of any part thereof without taking possession of the 
 entire factory, and may use the same at such times and in such manner as he 
 may consider necessary or expedient. 
 
 Second. Within the limit of the amounts appropriated therefor, to modify 
 or cancel any existing contract for the building, production, or purchase of 
 ships or war material; and if any contractor shall refuse or fail to comply with 
 the contract as so modified the President may take immediate possession of any 
 factory of such contractor, or any part thereof without taking possession of the 
 entire factory, and may use the same at such times and in such manner as he 
 may consider necessary or expedient. 
 
 Third. To require the o\\mer or occupier of any factory in w^hich ships or 
 war material are built or produced to place at the disposal of the United vStates 
 the whole or any part of the output of such factory, and, within the limit of the 
 amounts appropriated therefor, to deliver such output or parts thereof in such 
 quantities and at such times as may be specified in the order at such reasonable 
 price as shall be determined by the President. 
 
 1475 
 
May 12, 1917. Pt. 3. STATUTES AT LARGE. 
 
 Fourth. To requisition and take over for use or operation by the Govern- 
 ment any factory, or any jnirt thereof without taking possession of the entire 
 factory, whether the United States has or has not any contract or agreement 
 with the owner or occupier of such factory. 
 
 That all authority granted to the President in this paragraph, to be exer- 
 cised in time of national emergency, shall cease on March first, nineteen hundred 
 and eighteen. 
 
 (d) That whenever the United States shall cancel or modify any contract, 
 make use of, assume, occupy, requisition, or take over any factory or part thereof, 
 or any ships or war material, in accordance ^^^th the provisions of paragraph (b), 
 it shall make just compensation therefor, to be determined by the President, 
 and if the amount thereof so determined by the President is unsatisfactory to 
 the person entitled to receive the same, such person shall be paid fifty per 
 centum of the amount so determined by the President and shall be entitled to 
 sue the United States to recover such further sum as added to said fifty per 
 centum shall make up such amount as will be just compensation therefor, in the 
 manner provided for by section twenty-four, paragraph twenty, and section 
 one hundred and forty-five of the Judicial Code. — (39 Stat., 1193, chap. 180.) 
 
 So much of this act as related to the authority 
 
 of the President in time of national emer- 
 gency, expired, bv its terms, on March 1, 
 
 1918. 
 The authority granted the President by this 
 
 act, to be exercised in time of war, was "in 
 
 addition to" the authoritv contained in 
 
 act of June 3, 1916, section 120 (39 Stat., 
 
 213); see also acts of September 7, 1916, 
 
 section 10 (39 Stat., 731), and August 29, 
 
 1916 (39 Stat., 592). 
 Other pro\isions for procurement of ships and 
 
 material, cancellation of contracts, etc., 
 
 were contained in act of June 15, 1917 (40 
 
 Stat., 182-183), which in terms was to 
 
 expire six months after a treaty of peace 
 
 proclaimed between this Government and 
 the German Empire. Said act of June 
 15, 1917, was amended bv acts of April 22, 
 1918 (40 Stat., 535), and November 4, 
 1918 (40 Stat., 1022), and was repealed, 
 together with said amendments, by act of 
 June 5, 1920 (41 Stat., 988), which also re- 
 pealed an act approved July 18, 1918 (40 
 Stat., 913), which contained authority for 
 commandeering vessels during the then 
 existing war. 
 
 Other pro\isions on this subject, but limited 
 to the then existing war, were contained 
 in act of Jiily 1, 1918 (40 Stat., 719-720). 
 
 As to changes in contracts, see note to act of 
 August 3, 1886 (24 Stat., 215). 
 
 [1917, Apr. 25. Extension of minority enlistments.] That hereafter any 
 enlistment for minority in the Navy or Marine Corps may be extended as is 
 provided by law for extending an enlistment for a term of four years, under 
 similar conditions and with like rights, privileges, benefits, and obligations. — 
 (40 Stat., 38, chap. 6.) 
 
 See sections 1418, 1573, and 1608, Re^dsed Statutes, and notes thereto. 
 
 [1917, May 12. Government employees, members of Officers' Reserve Corps; 
 leaves of absence ; reinstatement.] That all officers and employees of the United 
 States or of the District of Columbia who shall be members of the Officers' 
 Reserve Corps shall be entitled to leave of absence from their respective duties, 
 without loss of pay, time, or efficiency rating, on all days during which they 
 shall be ordered to duty with troops or at field exercises, or for instruction, for 
 periods not to exceed fifteen days in any one calendar year. 
 
 Provided further, That members of the Officers' Reserve Corps who are in 
 the employ of the United States Government or of the District of Columbia 
 and who are ordered to duty by proper authority shall, when relieved from 
 duty, be restored to the positions held by them when ordered to duty. — (40 
 Stat., 72, chap. 12.) 
 
 1476 
 
PL 3. STAT UTES A T LARGE. May 18,1917. 
 
 Statutes, under "Honorably discharged 
 soldiers or sailors." 
 
 See act of June 3, 1916, section 80 (39 Stat., 
 
 203), as to employees belonging to National 
 
 ^ Guard ; and see note to section 416, Revised 
 
 [1917, May 12. Seizure of vessels belonging to alien enemies.] That the 
 President be, and he is hereby, authorized to take over to the United States the 
 immediate possession and title of any vessel within the jurisdiction thereof, 
 including the Canal Zone and all territories and insular possessions of the United 
 States except the American Virgin Islands, which at the time of coming into 
 such jurisdiction was owned in whole or in part by any corporation, citizen, 
 or subject of any nation with which the United States may be at war when 
 such vessel shall be taken, or was flying the flag of or was under register of any 
 such nation or any political subdivision or municipality thereof; and, through 
 the United States Shipping Board, or any department or agency of the Govern- 
 ment, to operate, lease, charter, and equip such vessel in any service of the 
 United States, or in any commerce, foreign or coastwise. 
 
 Sec. 2. That the Secretary of the Navy be, and he is hereby, authorized 
 and directed to appoint, subject to the approval of the President, a board of 
 survey, whose duty it shall be to ascertain the actual value of the vessel, its 
 equipment, appurtenances, and all property contained therein, at the time 
 of its taking, and to make a written report of their findings to the Secretary of 
 the Navy, who shall preserve such report with the records of his department. 
 These findmgs shall be considered as competent evidence in all proceedings 
 on any claim for compensation. — (40 Stat., 75, chap. 13, Pub. Res. No. 2.) 
 
 By act of June 5, 1920, section 4 (41 Stat., 
 990), it was provided that vessels acquired 
 by the President pursuant to this joint 
 resolution, ''are hereby transferred " to the 
 
 Shipping Board, with certain exceptions 
 which included ''all vessels in the military 
 and naval service of the United States." 
 
 [1917, May 18, sec. 12. Liquor prohibition authorized, near military camps, 
 etc.] That the President of the United States, as Commander in Chief of the 
 Army, is authorized to make such regulations governing the prohibition of 
 alcoholic liquors in or near military camps and to the officers and enlisted 
 men of the Army as he may from time to time deem necessary or advisable: 
 Provided, That no person, corporation, partnership, or association shall sell, 
 supply, or have in his or its possession any intoxicating or spirituous liquors 
 at any military station, cantonment, camp, fort, post, officers' or enlisted men's 
 club, which is being used at the time for military purposes under this Act, 
 but the Secretary of War may make regulations permitting the sale and use of 
 intoxicating liquors for medicinal purposes. It shall be unla%vful to sell any 
 intoxicating liquor, including beer, ale, or wine, to any officer or member of the 
 military forces while in uniform, except as herein provided. Any person 
 corporation, partnership, or association violating the provisions of this section 
 or the regulations made thereunder shall, unless otherwise punishable under 
 the Articles of War, be deemed guilty of a misdemeanor and be punished by a 
 fine of not more than $1,000 or imprisonment for not more than twelve months, 
 or both. — (40 Stat., 82-83, chap. 15.) 
 
 This section was amended by act of October 6, i the word 'military' shall include 'naval'; 
 1917 (40 Stat., 393), which provided that, 'Article of War' shall include 'Articles for 
 
 in construing this section, "the word | the Government of the Navy'; the words 
 'Army 'shall extend to and include 'Navy'; 'camps, station, cantonment, camp, fort, 
 
 1477 
 
May 22, 1917. 
 
 PL S. STATUTES AT LARGE. 
 
 post, ofTicors' or onlistod men's club," * * * 
 shall include such i)laces under naval juris- 
 diction as the President may prescribe, 
 and the powers therein conferred upon the 
 Secretary of War with regard to the military 
 service are hereby conferred upon the 
 Swretary of the IS'avy with regard to the 
 naval ser\-ice." 
 By the National Prohibition Act of October 28, 
 1919, section 7 (41 Stat., 307), it was pro- 
 vided that 'None of the provisions of this 
 Act shall be construed to repeal any of the 
 pro\isions of the 'War Prohibition Act,' 
 or to limit or annul any order or regiilation 
 prohibiting tlie manufacture, sale, or dis- 
 position of intoxicating liquors within cer- 
 tain prescribed zones or districts, nor shall 
 the j^roxisions of this Act be construed to 
 ])rohibit the use of the power of the militaiy 
 or naval authorities to enforce the regula- 
 tions of the President or Secretary of War 
 or Navy issued in pursuance of law, pro- 
 hibiting the manufacture, use, possession, 
 sale, or other disposition of intoxicating 
 liquors during the period of the war and 
 demobilization thereafter." The same act, 
 section 3.5 (41 Stat., 317), provided that 
 ' ' all provisions of law that are inconsistent 
 with this Act are repealed only to the extent 
 of such inconsistency and the regulations 
 herein provided for the manufacture or 
 
 traffic in intoxicating liquor shall be con- 
 strued as in addition to existing laws." 
 See section 1624, Revised Statutes, article 13, 
 and Constitution, eighteenth amendment. 
 Section 13 of the above act of May 18, 1917 (40 
 Stat., 83), relating to prostitution, etc., near 
 military places, which was also extended by 
 act of October 6, 1917 (40 Stat., 393), to in- 
 clude naval places, was in terms limited to 
 "the present war," and is therefore omitted. 
 Arrest of civilians by naval authorities. — 
 The act of May 18, 1917, section 12, as 
 amended by act of October 6, 1917, was not 
 repealed by the National Prohibition Act of 
 October 28, 1919. The general orders issued 
 piirsuant to the former statutes (G. O. 411, 
 Aug. 3, 1918, and G. O. 412, Aug. 16, 1918) are 
 therefore still in effect, and the commanding 
 officer of a maiine barracks is authorized, in the 
 enforcement of said orders, to arrest ci\'ilians 
 who are apprehended in the act of Aiolating any 
 of the provisions of said oi'ders, and to retain 
 them in custody no, longer than is necessary to 
 turn them over to the proper ci\'il authorities 
 of the United States. He is not, however, 
 authorized to arrest civilians except on the 
 Government reservation; offenders outside, 
 although within the zone prescribed by general 
 orders, should be arrested by the Federal ciWl 
 authorities, to whom report of the facts should 
 be made. (File 29163-2, Feb. 24, 1920.) 
 
 [1917, May 22. "Authorized enlisted strength" defined; instruction in 
 trade schools.] * * * That the phrase ''authorized enhsted strength," 
 as applied to the personnel of the Navy, shall mean the total number of enlisted 
 men of the Navy authorized by law, exclusive of the Hospital Corps, apprentice 
 seamen, those sentenced by court-martial to discharge, those detailed for duty 
 with Naval Militia, those furloughed without pay, enlisted men of the Flying 
 Corps, and those under instruction in trade schools: Provided further, That the 
 number of enlisted men for instruction in trade schools shall not at any time 
 exceed fourteen thousand, which number is hereby temporarilv authorized. 
 * * *.— (40 Stat., 84, chap. 20; 40 Stat., 714, chap. 114.) 
 
 This section was expressly amended and 
 reenacted to read as above by act of July 1, 
 1918 (40 Stat., 714). The omitted portions 
 of this section and other provisions of this 
 act were temporary legislation, no longer 
 in force. 
 
 As to authorized enUsted strength of the Navy, 
 see note to section 1417, ReAdsed Statutes. 
 
 By act of July 11, 1919 (41 Stat., 138), tempo- 
 rarily increasing the "total authorized 
 enlisted strength of the active list of the 
 Navy," it was provided ''that nothing 
 herein shall be construed as affecting the 
 permanent * * * enlisted strength of 
 the Regular Navy as authorized bv existing 
 law." 
 
 [1917, May 22, sec. 2. Privates, first class, Marine Corps.] * * * That 
 not more than twenty-five per centum of the authorized number of privates in 
 the IVIarine Corps shall have the rank of private, first class, which rank is hereby 
 established in the Marine Corps.— (40 Stat., 84-85, chap 20; 40 Stat., 714, 
 chap. 114.) 
 
 This section was expressly amended and 
 reenacted to read as above by act of Julv 1, 
 1918 (40 Stat., 714). Other portions of 
 the section are omitted ?-s temporary. 
 
 See note to section 1596, Revised Statutes, as 
 to the organization of the Marine Corps 
 and number of enlisted men. 
 
 1478 
 
Pt.3. STATUTES AT LARGE. 
 
 May 22, 1917. 
 
 * * 
 
 [1917, May 22, sec. 5. Commissions to midshipmen on graduation.] * * * 
 the class of midshipmen graduated from the Naval Academy on March twenty- 
 ninth, nineteen hundred and seventeen, and the classes to be graduated here- 
 after, may be commissioned effective from date of graduation 
 (40 Stat., 86, chap. 20; 40 Stat., 716, chap. 114.) 
 
 This section was reenacted by act of July 1, 1918 
 
 (40 Stat., 716), but without any change in 
 
 the clause above set forth. 
 Other portions of this section are omitted as 
 
 temporary. 
 See note to act of August 29, 1916(39 Stat., 576), 
 
 as to distribution in grades of line officers; 
 
 and note to section 1521, Revised Statutes, 
 
 as to appointment of midshipmen to com- 
 missioned grades on graduation from the 
 
 Naval Academy. 
 
 The word " effective " as used in this clause 
 is sufficiently broad to authorize the treating 
 of midshipmen, when commissioned, as though 
 they had been commissioned on, instead of from, 
 date of graduation ; and in making computations 
 to determine the distribution of officers in the 
 various grades and ranks. Midshipmen so 
 commissioned may be counted as though they 
 had been commissioned on date of graduation. 
 (File 11130-41, May 21, 1917; see act of August 
 29, 1916, 39 Stat., 577, as to computations.) 
 
 [1917, May 22, sec. 11. Additional warrant officers in the Marine Corps.] 
 That the appointment of thirty marine gunners, thirty quartermaster's clerks, 
 and nine clerks to assistant paymasters, additional to the number now pre- 
 scribed by law, and the temporary appointment of eight clerks to assistant 
 paymasters for the war, is hereby authorized, such appointments to be made 
 in the manner now provided by law. — (40 Stat., 87, chap. 20.) 
 
 See act of August 29, 1916 (39 Stat., 611), and 
 note thereto, as to number of warrant 
 officers in the Marine Corps; see act of 
 
 July 1, 1918 (40 Stat., 735), as to pay clerks 
 in the Marine Corps; see also note to section 
 1596, Revised Statutes. 
 
 [1917, May 22, sec. 15. Pay of enlisted men.] That commencing June 
 first, nineteen hundred and seventeen, and continuing until not later than six 
 months after the termination of the present war, all enlisted men of the Navy 
 of the United States in active service whose base pay does not exceed $21 per 
 month shall receive an increase of $15 per month; those whose base pay is 
 over $21 and does not exceed $24 per month, an increase of $12 per month; 
 those whose base pay is over $24 and less than $45 per month, an increase of 
 $8 per month; and those whose base pay is $45 or more per month, an increase 
 of $6 per month: Provided, That the increases of pay herein authorized shall 
 not enter into the computation of continuous-service pay. — (40 Stat., 87, 
 chap. 20.) 
 
 By act of July 11, 1919 (41 Stat., 140), the rates 
 of pay prescribed in this section were 
 "made the permanent rates of pay of the 
 enlisted men of the Navy during their 
 present current enlistment and for those 
 
 [1917, May 22, sec. 16. Coast and Geodetic Survey, transfer to Navy during 
 war; status and rank of personnel.] That the President is hereby authorized, 
 whenever in his judgment a sufficient national emergency exists, to transfer 
 to the service and jurisdiction of the War Department, or of the Navy Depart- 
 ment, such vessels, equipment, stations, and personnel of the Coast and Geodetic 
 Survey as he may deem to the best interest of the country, and after such trans- 
 fer all expenses connected therewith shall be defrayed out of the appropriations 
 for the department to wliich transfer is made: Provided, That such vessels, 
 equipment, stations, and personnel shall be returned to the Coast and Geodetic 
 Survey when such national emergency ceases, in the opinion of the President, 
 
 who enlist or reenlist prior to July 1, 1920, 
 for the term of such enlistment or reenlist- 
 ment." 
 See note to section 1569, Revised Statutes, as 
 to pay of enlisted men of the Navy. 
 
 1479 
 
May 22, 1917. Pt. S. STA TUTES A T LARGE. 
 
 and notliing in this Act shall be construed as transferring the Coast and Geodetic 
 Survey or any of its functions from the Department of Conamerce except in 
 time of national emergency and to the extent herein provided: Provided 
 further, That any of the personnel of the Coast and Geodetic Sm-vey who may be 
 transferred as herein provided shall, while under the jurisdiction of the War 
 Department or Navy Department, have proper military status and shall be 
 subject to the laws, regulations, and orders for the government of the Army or 
 Nav}^, as the case may be, in so far as the same may be applicable to persons 
 whose retention permanently in the military service of the United States is 
 not contemplated by law * * *. While actually employed in active service 
 under direct orders of the War Department or of the Navy Department members 
 of the Coast and Geodetic Survey shall receive the benefit of all provisions of 
 laws relating to disability incurred in line of duty or loss of life. 
 
 When serving with the Army or Navy the relative rank shall be as follows: 
 
 Hydrographic and geodetic engineers receiving $4,000 or more shall rank 
 with and after colonels in the Army and captains in the Navy. 
 
 Hydrogi'aphic and geodetic engineers receiving S3, 000 or more but less 
 than S4,000 shall rank with and after lieutenant colonels in the Army and com- 
 manders in the Navy. 
 
 Hj-di'ographic and geodetic engineers receiving $2,500 or more but less 
 than $3,000 shall rank with and after majors in the Army and lieutenant com- 
 manders in the Navy. 
 
 Hydrographic and geodetic engineers receiving $2,000 or more but less 
 than $2,500 shall rank with and after captains in the Army and lieutenants 
 in the Navy. 
 
 Junior hydrographic and geodetic engineers shall rank with and after first 
 lieutenants in the Army and lieutenants (junior grade) in the Navy. 
 
 Aids shall rank with and after second lieutenants in the Army and ensigns 
 in the Navy. 
 
 And nothing in this Act shall be construed to affect or alter their rates of 
 pay and allowances when not assigned to military duty as hereinbefore men- 
 tioned. 
 
 The Secretary of War, the Secretary of the Navy, and the Secretary of 
 Commerce shall jointly prescribe regulations governing the duties to be per- 
 formed by the Coast and Geodetic Survey in time of war, and for the cooperation 
 of that service with the War and Navy Departments in time of peace in prepara- 
 tions for its duties in war, which regulations shall not be effective unless approved 
 by each of the said Secretaries, and included therein may be rules and regula- 
 tions for making reports and communications between the officers or bureaus 
 of the War and Navy Departments and the Coast and Geodetic Survey. — (40 
 Stat., 87-88, chap. 20.) 
 
 See act of October G, 1917 (40 Stat., 393-394), 
 as to members of Coast and Geodetic Sur- 
 vey serving on naval courts-martial in time 
 
 [1917, May 22, sec. 17. Precedence of medical officers.] That nothing 
 contained in the Act of August twenty-ninth, nineteen hundred and sixteen, 
 shall operate to disturb the relative position of officers in the Medical Corps 
 with reference to precedence or promotion, but all such ofiicers otherwise 
 
 1480 
 
 of war; and see note to section 1363, Re\a8ed 
 Statutes. 
 
Pt. 3. STATUTES AT LARGE. May 22, 1917. 
 
 qualified shall be advanced in rank with or ahead of officers in said corps who 
 were their juniors on the date of said Act. — (40 Stat., 89, chap. 20.) 
 
 See note to act of August 29, 191G (39 Stat., 576- for explanation of the sitTiation which thia 
 
 577), Tinder "Rank of assistant siirgeons, 
 
 section was enacted to remedy. 
 
 [1917, May 22, sec. 18. Ranks of admiral and vice admiral for fleet officers.] 
 That the President be, and he is hereby, further authorized to designate six 
 officers of the Navy for the command of fleets or subdivisions thereof and, after 
 being so designated from the date of assuming such command until relinquish- 
 ing thereof, not more than three of such officers shall each have the rank and 
 pay of an admiral, and the others shall each have the rank and pay of a vice 
 admiral; and the grades of admiral and vice admiral are hereby authorized and 
 continued for the purpose of this Act: Provided, That in time of war the selec- 
 tions under the provisions of this section shall be made from the grades of 
 rear admiral or captain on the active list of the Navy: Provided further, That 
 the pay of an admiral shall be S10,000 and the pay of a vice admiral $9,000 per 
 annum: Provided further, That in time of peace officers for the command of 
 fleets and subdivisions thereof, as herein authorized, shall be designated from 
 among the rear admirals on the active list of the Navy: Provided further, That 
 nothing herein contained shall create any vacancy in any grade in the Navy or 
 increase the total number of officers authorized by law: Provided further, 
 That when an officer with the rank of admiral or vice admiral is detached from 
 the command of a fleet or subdivision thereof, as herein authorized, he shall 
 return to his regular rank in the list of officers of the Navy and shall thereafter 
 receive only the pay and allowances of such rank: Ahd provided further, That 
 nothing in this Act shall be held or construed as amending or repealing the pro- 
 visions of sections fourteen hundred and thirty-four, fourteen hundred and sixty- 
 three, and fourteen hundred and sixty-four of the Revised Statutes of the United 
 States. 
 
 That the provision in the Act approved March third, nineteen hundred 
 and fifteen, for the designation of commanders in chief of certain fleets with 
 the rank of admiral and for the designation of officers second in command of 
 such fleets with the rank of vice admiral be, and the same is hereby, repealed. — 
 (40 Stat., 89, chap. 20.) 
 
 See note to section 1362, Revised Statutes, 
 under "The grade of Admiral;" note to 
 section 1556, Re\'ised Statutes, under 
 
 [1917, May 22, sec. 20. Advancement of staff officers, examinations ; Secretary 
 of the Navy empowered to act for President on records of certain boards.] That 
 hereafter all laws relating to the examination of officers of the Navy for pro- 
 motion shall be construed to apply to the regular advancement of staff officers 
 to higher ranks on the active list the same as though such advancements in 
 rank were promotions to higher grades: Provided, That examinations for such 
 staff officers shall not be required except for such regular advancements in 
 rank: Provided further, That the President be, and he is hereby, authorized 
 to direct the Secretary of the Navy to take such action on the records of pro- 
 ceedings of naval examining boards and boards of naval surgeons for the pro- 
 motion of officers of the Navy as is now required by law to be taken by the 
 President.— (40 Stat., 89-90, chap. 20.) 
 
 1481 
 
 "2-3. Admirals; Vice admirals;" and see 
 sections 1434, 1463, and 1464, Revised Stat- 
 utes. ^ 
 
June 15, 1917. 
 
 rt..L STATUTES AT LARGE. 
 
 Espionage Act. 
 
 See act of March 4, 1917 (39 Stat., 1182), which 
 contained a provision identical \vith the 
 first clause of this section; see also sections 
 1480, 1493, and 149(1, Revised Statutes, and 
 notes thereto, as to examinations for promo- 
 tion. As to distinction between rank" 
 
 and "grade" see notes to sections 421, 422, 
 423, 13()2, 1457, 1477, 1479, 1480, and 1481 
 Revised Statutes. 
 See section 1502, Revised Statutes, as to action 
 of the President on records of promotion 
 boards in the Navy. 
 
 [1917, June 15. Commutation allowed Nurse Corps,] Members of Nurse 
 Corps (female) * * * shall hereafter be paid the same commutation as is 
 or may be allowed members of the Nurse Corps of the Army. — (40 Stat., 209, 
 chap. 29.) 
 
 See note to section 1556, Revised Statutes, under "36. Dental Corps; and Nurse Corps 
 (female)." 
 
 [1917, June 15. Purchase of vessels for transportation of fuel.] That 
 
 when, in the opinion of the President, the prices asked for the charter of vessels 
 
 for the transportation of fuel are excessive, he is authorized to purchase vessels 
 
 suitable for the purpose and, if money is not otherwise available, to pay for 
 
 them from the appropriation "Fuel and transportation." — (40 Stat., 211, 
 
 chap. 29.) 
 
 Identical provision was contained in act of 
 July 1, 1918 (40 Stat., 730). 
 
 See act of April 28, 1904 (33 Stat., 518), and sec- 
 tions 3711, 3718, and 3728, Revised Stat- 
 utes. 
 
 [1917, June 15. Reserve material, Navy.] For procuring apparatus and 
 materials (other than ordnance materials and medical stores) , as a war reserve 
 necessary to be carried in the supply departments for the purpose of fitting 
 out vessels of the fleet and merchant auxiliaries in time of war or when, in 
 the opinion of the President, a national emergency exists, $2,000,000: Provided, 
 That to prevent deterioration materials purchased under the reserve material 
 Navy fund shall be used as required in time of peace, and when so used reim- 
 bursement shall be made to this appropriation from current naval appropria- 
 tions in order that additional stocks may be procured. — (40 Stat., 211, chap. 
 29.) 
 
 Similar provision was contained in act of March See sections 3689, 3G90, and 3718, Revised Stat- 
 4, 1917 (39 Stat., 1183). utes, and notes thereto. 
 
 [1917, June 15. Espionage; international relations; enforcement of neu- 
 trality ; forgery of Government seal, military papers, etc. ; illegal use of mails ; 
 use of naval forces.] 
 
 Title I. 
 
 ESPIONAGE. 
 
 Section 1. That (a) whoever, for the purpose of obtaining information 
 respecting the national defense with intent or reason to believe that the informa- 
 tion to be obtained is to be used to the injury of the United States, or to the 
 advantage of any foreign nation, goes upon, enters, flies over, or otherwise 
 obtains information concerning any vessel, aircraft, work of defense, navy yard, 
 naval station, submarine base, coaling station, fort, battery, torpedo station, 
 dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, 
 wireless, or signal station, building, office, or other place connected with the 
 national defense, owned or constructed, or in progress of construction by the 
 United States or under the control of the United States, or of any of its officers 
 
 1482 
 
Espionage Act. Ft. 3. STATUTES AT LARGE. June 15, 1917. 
 
 or agents, or within the exclusive jurisdiction of the United States, or any 
 place in which any vessel, aircraft, arms, munitions, or other materials or in- 
 struments for use in time of war are being made, prepared, repaired, or stored, 
 imder any contract or agreement with the United States, or with any person on 
 behalf of the United States, or otherwise on behalf of the United States, or any 
 prohibited place within the meaning of section six of this title; or (b) whoever, 
 for the purpose aforesaid, and with like intent or reason to believe, copies, 
 takes, makes, or obtains, or attempts, or induces or aids another to copy, take, 
 make, or obtain, any sketch, photograph, photographic negative, blue print, 
 plan, map, model, instrument, appliance, document, writing, or note of any- 
 thing connected with the national defense; or (c) whoever, for the purpose 
 aforesaid, receives or obtains or agrees or attempts or induces or aids another 
 to receive or obtain from any person, or from any source whatever, any docu- 
 ment, writing, code book, signal book, sketch, photograph, photographic 
 negative, blue print, plan, map, model, instrument, appliance, or note, of any- 
 thing connected with the national defense, knowing or having reason to be- 
 heve, at the time he receives or obtains, or agrees or attempts or induces or 
 aids another to receive or obtain it, that it has been or will be obtained, taken, 
 made or disposed of by any person contrary to the provisions of this title; or 
 (d) whoever, lawfully or imlawfully having possession of, access to, control 
 over, or being intrusted with any document, writing, code book, signal book, 
 sketch, photograph, photographic negative, blue print, plan, map, model, 
 instrument, appliance, or note relating to the national defense, willfully commu- 
 nicates or transmits or attempts to communicate or transmit the same to any 
 person not entitled to receive it, or willfully retains the same and fails to de- 
 liver it on demand to the officer or employee of the United States entitled to 
 receive it; or (e) whoever, being intrusted with or having lawful possession or 
 control of any document, writing, code book, signal book, sketch, photograph, 
 photographic negative, blue print, plan, map, model, note, or information, 
 relating to the national defense, through gross negligence permits the same to 
 be removed from its proper place of custody or dehvered to anyone in viola- 
 tion of his trust, or to be lost, stolen, abstracted, or destroyed, shall be punished 
 by a fine of not more than $10,000, or by imprisonment for not more than two 
 years, or both.— (40 Stat., 217-218, chap. 30.) 
 
 See Criminal Code, act of March 4, 1909, section 45 (35 Stat., 1097). 
 
 Sec. 2. (a) Whoever, with intent or reason to beheve that it is to be used 
 to the injury of the United States or to the advantage of a foreign nation, com- 
 municates, dehvers, or transmits, or attempts to, or aids or induces another to, 
 communicate, dehver, or transmit, to any foreign government, or to any fac- 
 tion or party or military or naval force within a foreign country, whether 
 recognized or unrecognized by the United States, or to any representative, 
 officer, agent, employee, subject, or citizen thereof, either directly or indirectly, 
 any document, writing, code book, signal book, sketch, photograph, photo- 
 graphic negative, blue print, plan, map, model, note, instrument, apphance, 
 or information relating to the national defense, shall be punished by imprison- 
 ment for not more than twenty years: Provided, That whoever shall violate 
 the provisions of subsection (a) of this section in time of war shall be punished 
 
 54641°— 22 94 1483 
 
June 15, 1917. PL 3. STATUTES AT LARGE. Espionage Act. 
 
 by death or by imprisonment for not more than thirty years; and (b) whoever, 
 in time of war, with intent that the same shall be communicated to the enemy, 
 shall collect, record, publish, or communicate, or attempt to ehcit any informa- 
 tion with respect to the movement, numbers, description, condition, or disposi- 
 tion of any of the armed forces, ships, aircraft, or war materials of the United 
 States, or with respect to the plans or conduct, or supposed plans or conduct 
 of any naval or military operations, or with respect to any works or measures 
 undertaken for or connected with, or intended for the fortification or defense 
 of any place, or any other information relating to the public defense, which 
 might be useful to the enemy, shall be punished by death or by imprisonment 
 for not more than thirty years. — (40 Stat., 218-219, chap. 30.) 
 
 Sec. 3. T\Tioever, when the United States is at war, shall willfully make 
 or convey false reports or false statements with intent to interfere with the 
 operation or success of the military or naval forces of the United States or to 
 promote the success of its enemies and whoever, when the United States is at 
 war, shall willfully cause or attempt to cause insubordmation, disloyalty, 
 mutiny, or refusal of duty, in the military or naval forces of the United States, 
 or shall willfully obstruct the recruiting or enlistment service of the United 
 States, to the injury of the service or of the United States, shall be punished by 
 a fine of not more than $10,000 or imprisonment for not more than twenty 
 years, or both. — (40 Stat., 219, chap. 30.) 
 
 This section was amended and reenacted by 
 actoi May 16, 1918 (40 Stat., 553-554), 
 which amendatory act was repealed and 
 the original section, as above set forth, 
 
 "reAT-ved and restored with the same 
 force and effect as originally enacted," by 
 Joint Resolution of March 3, 1921 (41 
 Stat., 1360). 
 
 Sec. 4. If two or more persons conspire to violate the provisions of sec- 
 tions two or three of this title, and one or more of such persons does any act 
 to effect the object of the conspiracy, each of the parties to such conspiracy 
 shall be punished as in said sections provided in the case of the domg of the 
 act the accomplishment of which is the object of such conspiracy. Except as 
 above provided conspiracies to commit offenses under this title shall be pmiished 
 as provided by section thirty-seven of the Act to codify, revise, and amend 
 the penal laws of the United States approved March fourth, nineteen hundred 
 and nine. 
 
 Sec. 5. Whoever harbors or conceals any person who he loiows, or has 
 reasonable groimds to believe or suspect, has committed, or is about to commit, 
 an offense under this title shall be punished by a fine of not more than $10,000 
 or by imprisonment for not more than two years, or both. 
 
 Sec. 6. The President in time of war or in case of national emergency 
 may by proclamation designate any place other than those set forth in subsec- 
 tion (a) of section one hereof in which anything for the use of the Army or 
 Navy is being prepared or constructed or stored as a prohibited place for the 
 purposes of this title: Provided, That he shall determme that information 
 with respect thereto would be prejudicial to the national defense. 
 
 Sec. 7. Nothing contamed in this title shall be deemed to limit the juris- 
 diction of the general courts-martial, military commissions, or naval courts- 
 martial under sections thirteen hundred and forty-two, thirteen hundred and 
 forty-three, and sixteen hunded and twenty-four of the Revised Statutes as 
 amended. 
 
 1484 
 
Espionage Act. PL 3. STATUTES AT LARGE. June 15, 1917. 
 
 Sec. 8. The provisions of this title shall extend to all Territories, posses- 
 sions, and places subject to the jurisdiction of the United States whether or 
 not contiguous thereto, and offenses under this title when committed upon the 
 high seas or elsewhere within the admiralty and maritime jurisdiction of the 
 United States and outside the terriiorial limits thereof shall be punishable 
 hereunder. 
 
 Sec. 9. The Act entitled "An Act to prevent the disclosure of national 
 defense secrets," approved March third, nineteen hundred and eleven, is hereby 
 repealed.— (40 Stat. 219, chap. 30.) 
 
 Title II. 
 
 VESSELS IN PORTS OF THE UNITED STATES. 
 
 Section 1. Whenever the President by proclamation or Executive order 
 declares a national emergency to exist by reason of actual or threatened war, 
 insurrection, or mvasion, or disturbance or threatened disturbance of the mtcr- 
 national relations of the United States, the Secretary of the Treasury may 
 make, subject to the approval of the President, rules and regulations governing 
 the anchorage and movement of any vessel, foreign or domestic, in the terri- 
 torial waters of the United States, may mspect such vessel at any time, place 
 guards thereon, and, if necessary in his opinion in order to secure such vessels 
 from damage or injury, or to prevent damage or injury to any harbor or waters 
 of the United States, or to secure the observance of the rights and obligations 
 of the United States, may take, by and with the consent of the President, for 
 such purposes, full possession and control of such vessel and remove therefrom 
 the officers and crew thereof and all other persons not specially authorized by 
 him to go or remain on board thereof. 
 
 Withm the territory and waters of the Canal Zone the Governor of the 
 Panama Canal, with the approval of the President, shall exercise all the powers 
 conferred by this section on the Secretary of the Treasury. 
 
 Sec. 2. If any owner, agent, master, officer, or person m charge, or any 
 member of the crew of any such vessel fails to comply with any regulation or rule 
 issued or order given by the Secretary of the Treasury or the Governor of the 
 Panama Canal under the provisions of this title, or obstructs or interferes 
 with the exercise of any power conferred by this title, the vessel, together with 
 her tackle, apparel, furniture, and ec^uipment, shall be subject to seizure and 
 forfeiture to the United States in the same manner as merchandise is forfeited 
 for violation of the customs revenue laws; and the person guilty of such failure, 
 obstruction, or interference shall be fined not more than $10,000, or imprisoned 
 not more than two years, or both. 
 
 Sec. 3. It shall be unlawful for the owner or master or any other person 
 in charge or command of any private vessel, foreign or domestic, or for any 
 member of the crew or other person, within the territorial waters of the United 
 States, willfully to cause or permit the destruction or injury of such vessel or 
 knowingly to permit said vessel to be used as a place of resort for any person 
 conspiring with another or preparing to commit any offense against the United 
 States, or in violation of the treaties of the United States or of the obligations 
 of the United States under the law of nations, or to defraud the United States, 
 
 1485 
 
June 15, 1917. Pt. S. STATUTES AT LARGE. Espionage Act. 
 
 or knowingly to permit such vessels to be used in violation of the rights and 
 obligations of the United States under the law of nations ; and in case such vessel 
 shall be so used, with the knowledge of the owner or master or other person in 
 charge or command thereof, the vessel, together with her tackle, apparel, fur- 
 niture, and equipment, shall be subject to seizure and forfeiture to the United 
 States in the same manner as merchandise is forfeited for violation of the customs 
 revenue laws; and whoever violates this section shall be fined not more than 
 $10,000 or imprisoned not more than two years, or both. 
 
 Sec. 4. The President may employ such part of the land or naval forces 
 of the United States as he may deem necessary to carry out the purpose of 
 this title.— (40 Stat., 220, chap. 30.) 
 
 Title V. 
 
 ENFORCEMENT OF NEUTRALITY. 
 
 Section 1. During a war in which the United States is a neutral nation, 
 the President, or any person thereunto authorized by him, may withhold clear- 
 ance from or to any vessel, domestic or foreign, which is required by law to 
 secure clearance before departing from port or from the jurisdiction of the 
 United States, or, by service of formal notice upon the owner, master, or per- 
 son in command or having charge of any domestic vessel not required by law 
 to secure clearances before so departing, to forbid its departure from port or 
 from the jurisdiction of the United States, whenever there is reasonable cause 
 to believe that any such vessel, domestic or foreign, whether requiring clearance 
 or not, is about to carry fuel, arms, ammunition, men, supplies, dispatches, or 
 information to any warship, tender, or supply ship of a foreign belligerent 
 nation in violation of the laws, treaties, or obligations of the United States 
 under the law of nations; and it shall thereupon be unlawful for such vessel to 
 depart.— (40 Stat., 221, chap. 30.) 
 
 See Criminal Code, act of March 4, 1909, sections 9-18 (35 Stat., 1089-1091), for "offenses 
 against neutrality." 
 
 Sec. 2. During a war in which the United States is a neutral nation, the 
 President, or any person thereunto authorized by him, may detain any armed 
 vessel owned wholly or in part by American citizens, or any vessel, domestic or 
 foreign (other than one which has entered the ports of the United States as a 
 pubhc vessel), which is manifestly built for warlike purposes or has been con- 
 verted or adapted from a private vessel to one suitable for warlike use, until the 
 owner or master, or person having charge of such vessel, shall furnish proof 
 satisfactory to the President, or to the person duly authorized by him, that the 
 vessel will not be employed by the said owners, or master, or person having 
 charge thereof, to cruise against or commit or attempt to commit hostilities 
 upon the subjects, citizens, or property of any foreign prince or state', or of any 
 colony, district, or people with which the United States is at peace, and that 
 the said vessel will not be sold or delivered to any belligerent nation, or to an 
 agent, officer, or citizen of such nation, by them or any of them, within the 
 jurisdiction of the United States, or, having left that jurisdiction, upon the 
 high seas.— (40 Stat., 221-222, chap. 30.) 
 
 1486 
 
Espionage Act. Pt. S. STATUTES AT LARGE. June 15, 1917. 
 
 Sec. 3. During a war in which the United States is a neutral nation, it shall 
 be unlawfiil to send out of the jurisdiction of the United States any vessel 
 built, armed, or equipped as a vessel of war, or converted from a private vessel 
 into a vessel of war, with any intent or under any agreement or contract, written 
 or oral, that such vessel shall be delivered to a belligerent nation, or to an 
 agent, officer, or citizen of such nation, or with reasonable cause to believe that 
 the said vessel shall or will be employed in the service of any such belligerent 
 nation after its departm*e from the jurisdiction of the United States. 
 
 Sec. 4. Dming a war in which the United States is a neutral nation, in 
 addition to the facts required by sections forty-one hundred and ninety-seven, 
 forty-one hundred and ninety-eight, and forty-two hundred of the Revised 
 Statutes to be set out in the masters' and shippers' manifests before clearance 
 will be issued to vessels bound to foreign ports, each of which sections of the 
 Revised Statutes is hereby declared to be and is continued in full force and 
 effect, every master or person having charge or command of any vessel, domestic 
 or foreign, whether requiring clearance or not, before departure of such vessel 
 from port shall deliver to the collector of customs for the district wherein such 
 vessel is then located a statement duly verified by oath, that the cargo or any 
 part of the cargo is or is not to be delivered to other vessels in port or to be 
 transshipped on the high seas and, if it is to be so delivered or transshipped, 
 stating the kind and quantities and the value of the total quantity of each kind 
 of article so to be delivered or transshipped, and the name of the person, corpora- 
 tion, vessel, or government, to whom the delivery or transshipment is to be 
 made; and the owners, shippers, or consignors of the cargo of such vessel shall 
 in the same manner and under the same conditions deliver to the collector like 
 statements under oath as to the cargo or the parts thereof laden or shipped by 
 them, respectively. 
 
 Sec. 5. Whenever it appears that the vessel is not entitled to clearance 
 or whenever there is reasonable cause to believe that the additional statements 
 imder oath required in the foregoing section are false, the collector of customs 
 for the district in which the vessel is located may, subject to review by the 
 Secretary of Commerce, refuse clearance to any vessel, domestic or foreign, and 
 by formal notice served upon the owners, master, or person or persons in com- 
 mand or charge of any domestic vessel for which clearance is not required by 
 law, forbid the departure of the vessel from the port or from the jurisdiction of 
 the United States ; and it shall thereupon be imlawf ul for the vessel to depart. 
 
 Sec. 6. Whoever, in violation of any of the provisions of this title, shall 
 take, or attempt or conspu-e to take, or authorize the taking of any such vessel, 
 out of port or from the jurisdiction of the United States, shall be fined not more 
 than $10,000 or imprisoned not more than five years, or both; and, in addition, 
 such vessel, her tackle, apparel, furniture, equipment, and her cargo shall be 
 forfeited to the United States.— (40 Stat., 222, chap. 30.) 
 
 Sec. 7. Whoever, being a person belonging to the armed land or naval 
 forces of a belligerent nation or belligerent faction of any nation and being 
 interned in the United States, in accordance with the law of nations, shall leave 
 or attempt to leave said jurisdiction, or shall leave or attempt to leave the 
 limits of internment in which freedom of movement has been allowed, without 
 
 1487 
 
June 15, 1917. Pt. S. STATUTES AT LARGE. Espionage Act. 
 
 permission from the proper official of the United States in charge, or shall will- 
 fully overstay a leave of absence granted by such official, shall be subject to 
 arrest by any marshal or deputy marshal of the United States, or by the military 
 or naval authorities thereof, and shall be returned to the place of internment 
 and there confined and safely kept for such period of time as the official of the 
 United States in charge shall direct; and whoever, within the jurisdiction of the 
 United States and subject thereto, shall aid or entice any interned person to 
 escape or attempt to escape from the jurisdiction of the United States, or from 
 the limits of internment prescribed, shall be fined not more than $1,000 or 
 imprisoned not more than one year, or both. * * * 
 
 Sec. 9. That the President may employ such part of the land or naval 
 forces of the United States as he may deem necessary to carry out the purposes 
 of this title. * * * 
 
 Sec. 11. The joint resolution approved March fourth, nineteen hundred 
 and fifteen, "To empower the President to better enforce and maintain the 
 neutrality of the United States," and any Act or parts of Acts in conflict with 
 the provisions of this title are hereby repealed. — (40 Stat.. 223, chap. 30.) 
 
 Title VI. 
 
 SEIZURE OF ARMS AND OTHER ARTICLES INTENDED FOR EXPORT. 
 
 Section 1. Whenever an attempt is made to export or ship from or take 
 out of the United States, any arms or munitions of war, or other articles, in 
 violation of law, or whenever there shall be known or probable cause to believe 
 that any such arms or munitions of war, or other articles, are being or are in- 
 tended to be exported, or shipped from, or taken out of the United States, in 
 violation of law, the several collectors, naval officers, surveyors, inspectors of 
 customs, and marshals, and deputy marshals of the United States, and every 
 other person duly authorized for the purpose by the President, may seize and 
 detain any articles or munitions of war about to be exported or shipped from, 
 or taken out of the United States, in violation of law, and the vessels or vehicles 
 containing the same, and retain possession thereof until released or disposed 
 of as hereinafter directed. If upon due inquiry as hereinafter provided, the 
 property seized shall appear to have been about to be so unlawfully exported, 
 shipped from, or taken out of the United States, the same shall be forfeited to 
 the United States * * *.— (40 Stat., 223-224, chap. 30.) 
 
 Sec. 6. Except in those cases in which the exportation of arms and muni- 
 tions of war or other articles is forbidden by proclamation or otherwise by the 
 President, as provided in section one of this title, nothing herein contained 
 shall be construed to extend to, or interfere with any trade in such commodities, 
 conducted with any foreign port or place wheresoever, or with any other trade 
 which might have been lawfully carried on before the passage of this title, under 
 the law of nations, or under the treaties or conventions entered into by the 
 United States, or under the laws thereof * * *. — (40 Stat., 225, chap. 30.) 
 
 Sec. 8. The President may employ such part of the land or naval forces of 
 the United States as he may deem necessary to carry out the purposes of this 
 title * * *.— (40 Stat., 225, chap. 30.) 
 
 1488 
 
Espionage Act. Ft. 3. STATUTES AT LARGE. June 15, 1917. 
 
 Title X. 
 
 COUNTERFEITING GOVERNMENT SEAL. 
 
 Section 1. Whoever shall fraudulently or wrongfully affix or impress the 
 seal of any executive department, or of any bureau, commission, or office of 
 the United States, to or upon any certificate, instrument, commission, docu- 
 ment, or paper of any description; or whoever, with knowledge of its fraudu- 
 lent character, shall with wrongful or fraudulent intent use, buy, procure, sell, 
 or transfer to another any such certificate, instrument, commission, document, 
 or paper, to which or upon which said seal has been so fraudulently affixed or 
 impressed, shall be fined not more than $5,000 or imprisoned not more than 
 five years, or both.— (40 Stat., 227-228, chap. 30.) 
 
 Sec. 2. Whoever shall falsely make, forge, counterfeit, mutUate, or alter, 
 or cause or procure to be made, forged, counterfeited, mutilated, or altered, or 
 shall willingly assist in falsely making, forging, counterfeiting, mutilating, or 
 altering, the seal of any executive department, or any bureau, commission, or 
 office of the United States, or whoever shall knowingly use, affix, or impress 
 any such fraudulently made, forged, counterfeited, mutilated, or altered seal 
 to or upon any certificate, instrument, commission, document, or paper, of 
 any description, or whoever with wrongful or fraudulent intent shall have pos- 
 session of any such falsely made, forged, counterfeited, mutilated, or altered 
 seal, knowing the same to have been so falsely made, forged, counterfeited, 
 mutilated, or altered, shall be fined not more than S5,000 or imprisoned not 
 more than ten years, or both. 
 
 Sec. 3. Whoever shall falsely make, forge, counterfeit, alter, or tamper with 
 any naval, military, or official pass or permit, issued by or under the authority 
 of the United States, or with wrongfid or fraudulent intent shall use or have 
 in his possession any such pass or permit, or shall personate or falsely represent 
 himself to be or not to be a person to whom such pass or permit has been duly 
 issued, or shall wfilfully allow any other person to have or use any such pass or 
 permit, issued for his use alone, shall be fined not more than $2,000 or impris- 
 oned not more than five years, or both * * *. — (40 Stat., 228, chap. 30.) 
 
 Title XII. 
 
 USE OF MAILS. 
 
 Section 1. Every letter, writing, circular, postal card, picture, print, 
 engraving, photograph, newspaper, pamphlet, book, or other publication, 
 matter or thing, of any kind, in violation of any of the provisions of this Act 
 is hereby declared to be nonmailable matter and shall not be conveyed in the 
 mails or delivered from any post office or by any letter carrier: Provided, That 
 nothing in this Act shall be so construed as to authorize any person other than 
 an employee of the Dead Letter Office, duly authorized thereto, or other per- 
 son upon a search warrant authorized by law, to open any letter not addressed 
 to himself. 
 
 Sec. 2. Every letter, writing, circular, postal card, picture, print, engrav- 
 ing, photograph, newspaper, pamphlet, book, or other publication, matter 
 
 1489 
 
July 2, 1917. Pi. S. STATUTES AT LAIiGE. 
 
 or thing, of any kind, containing any matter advocating or urging treason, 
 insurrection, or forcible resistance to any law of the United States, is hereby 
 declared to be nonmailable. — (40 Stat., 230, chap. 30.) 
 
 Sec. 3. Whoever shall use or attempt to use the mails or Postal Service 
 of the United States for the transmission of any matter declared by this title 
 to be nonmailable, shall be fined not more than $5,000 or imprisoned not more 
 than five years, or ])oth. Any person violating any provision of this title 
 may be tried and punished either in the district in which the unlawful matter 
 or publication was mailed, or to which it was carried by mail for delivery 
 according to the direction thereon, or in which it was caused to be delivered 
 by mail to the person to whom it was addressed. — (40 Stat., 230-231, chap., 30.) 
 
 By act of May 16, 1918 (,40 Stat., 554), a new 
 section, numbered 4, was added to this 
 title, denying the use of the mails to any 
 person \doIating this act; which said 
 amendatory act was repealed by Joint 
 
 Resolution of March 3, 1921 (41 Stat., 
 1360). 
 See Criminal Code, March 4, 1909, section 
 189-230 (35 Stat., 1124-1134), for "offenses 
 against the postal service." 
 
 Title XIII. 
 
 GENERAL PROVISIONS. 
 
 Section 1. The term "United States" as used in this Act includes the 
 Canal Zone and all territory and waters, continental or insular, subject to the 
 jurisdiction of the United States. * * * — (40 Stat., 231, chap. 30.) 
 
 [1917, July 2. Condemnation of lands for military purposes.] That hereafter 
 the Secretary of War may cause proceedings to be instituted in the name of 
 the United States, in any court having jurisdiction of such proceedings for the 
 acquirement by condemnation of any land, temporary use thereof or other 
 interest therein, or right pertaining thereto, needed for the site, location, 
 construction, or prosecution of works for fortifications, coast defenses, military 
 training camps, and for the construction and operation of plants for the pro- 
 duction of nitrate and other compounds and the manufacture of explosives 
 and other munitions of war and for the development and transmission of 
 power for the operations of such plants; such proceedings to be prosecuted in 
 accordance with the laws relating to suits for the condemnation of property 
 of the States wherein the proceedings may be instituted : Provided, That wheii 
 the owner of such land, interest, or rights pertaining thereto shall fix a price 
 for the same, which in the opinion of the Secretary of War shall be reason- 
 able, he may purchase or enter into a contract for the use of the same at such 
 price without further delay: Provided further, That the Secretary of War is 
 hereby authorized to accept on behalf of the United States donations of land 
 and the interest and rights pertaining thereto required for the above-men- 
 tioned purposes: And provided further, That when such property is acquired 
 in time of war, or the imminence thereof, upon the filing of the petition for 
 the condemnation of any land, temporary use thereof or other interest therein 
 or right pertaining thereto to be acquired for any of the purposes aforesaid, 
 immediate possession thereof may be taken to the extent of the interest to 
 be acquired and the lands may be occupied and used for military purposes, 
 and the provision of section three hundred and fifty-five of the Revised Statutes, 
 providing that no public money shall be expended upon such land until the 
 
 1490 
 
PL 3. STATUTES AT LARGE. Oct. 6, 1917. 
 
 written opinion of the Attorney General shall be had in favor of the validity 
 of the title, nor until the consent of the legislature of the State in which the 
 land is located has been given, shall be, and the same are hereby, suspended 
 during the period of the existing emergency. — (40 Stat., 241, chap. 35; 40 Stat., 
 518-519, chap. 51.) 
 
 This act was expressly amended and reenacted 
 to read as above by act of April 11^ 1918 
 (40 Stat., 518-519); as so amended, it was 
 extended to the Navy for certain pur- 
 
 poses by act of July 9, 1918 (40 Stat., 
 888). 
 See acts of August 1, 1888 (25 Stat., 357), and 
 June 3, 1916, section 124 (39 Stat., 215). 
 
 [1917, July 9. Public Health Service, subject to Navy laws, etc.] That 
 when officers of the United States Public Health Service are serving on Coast 
 Guard vessels in time of war, or are detailed in time of war for duty with the 
 Army or Navy in accordance with law, they shall be entitled to pensions for 
 themselves and widows and children, if any, as are now provided for officers 
 of corresponding grade and' length of service of the Coast Guard, Army or 
 Navy, as the case may be, and shall be subject to the laws prescribed for the 
 government of the service to which they are respectively detailed. — (40 Stat., 
 242, chap. 37, Pub. Res. No. 9.) 
 See acts of July 1, 1902, section 4 (32 Stat., and October 6, 1917 (40 Stat., 393); and 
 
 713), February 3, 1905 (33 Stat., 650-651), 
 
 see note to section 1368, Revised Statutes. 
 
 [1917, Oct. 6, sec. 6. Transfer of employees from executive departments 
 to independent establishments, etc.] That section five of the Act of June 
 twenty-second, nineteen hundi-ed and six, prohibiting the transfer of employees 
 from one executive department to another, shall apply with equal force and 
 effect to the transfer of employees from executive departments to mdependent 
 establishments and vice versa and to the transfer of employees from one inde- 
 pendent establishment to another: Provided, That the United States Shipping 
 Board Emergency Fleet Corporation shall be considered a Government estab- 
 lishment for the purposes of this section. — (40 Stat., 383, chap. 79.) 
 
 See act of June 22, 1906, section 5 (34 Stat., 449) 
 act of August 26, 1912, section 7 (37 Stat. 
 626), as amended and reenacted by act of 
 March 4, 1913, section 4 (37 Stat., 790) 
 
 act of March 28, 1918, section 2 (40 Stat., 
 498), and notes to sections 169 and 416, 
 Revised Statutes; see also next section of 
 this act, set forth below. 
 
 [1917, Oct. 6, sec. 7. Lump-sum employees; restrictions on pay of.] That 
 no civil employee in any of the executive departments or other Government 
 estabhshments, or who has been employed therein within the period of one year 
 next preceding his proposed employment in any other executive department 
 or other Government establishment, shall be employed hereafter and paid from 
 a lump-sum appropriation in any other executive department or other Gov- 
 ernment establishment at an increased rate of compensation. And no civil 
 employee in any of the executive departments or other Government establish- 
 ments or who has been employed therein within the period of one year next 
 preceding his proposed employment in any other executive department or 
 other Government establishment and who may be employed in another 
 executive, department or other Government estabhshment shall be granted 
 an increase in compensation within the period of one year following such 
 reemployment: Provided, That the United States Shipping Board Emergency 
 Fleet Corporation shall be considered a Government establishment for the 
 
 1491 
 
Oct. 6, 1917. PL S. STATUTES AT LARGE. 
 
 purposes of this section: Provided further, That this section shall not be con- 
 strued to repeal section five of the Act of June twenty-second, nineteen hundred 
 and six, which prohibits the transfer of employees from one department to 
 another.— (40 Stat., 383-384, chap. 79.) 
 
 See precedins; section of this act, set forth 
 
 anove, and references thereunder. 
 By act of March 28, 1918, section 2 (40 Stat., 
 
 498), this section was extended to include 
 all branches of the government of the 
 District of Columbia. 
 
 [1917. Oct. 6. Explosives, manufacture and possession in time of war 
 restricted ; use of public officers to enforce.] Sec. 2. * * * That nothing 
 herein contained shall be construed to prevent the manufacture, under the 
 authority of the Government, of explosives for, their sale to or their possession 
 by, the military or naval service of the United States of America. * * *. — 
 (40 Stat., 386, chap. 83.) 
 
 Sec. 21. That the Director of the Bureau of MLues, with the approval of 
 the President, is hereby authorized to utilize such agents, agencies, and all 
 officers of the United States and of the several States, Territories, dependencies, 
 and municipalities thereof, and the District of Columbia, in the execution of 
 this Act, and all agents, agencies, and all officers of the United States and of 
 the several States and Territories, dependencies, and municipalities thereof, 
 and the District of Columbia, shall hereby have full authority for all acts 
 done by them in the execution of this Act when acting by the direction of the 
 Bureau of Mines.— (40 Stat., 389, chap. 83.) 
 
 [1917, Oct. 6. Reimbursement of naval personnel for lost or damaged 
 property]. That the PajTnaster General of the Navy be, and he is hereby, 
 authorized and directed to reimburse such officers, enlisted men, and others in 
 the navel service of the United States as may have suffered, or may hereafter 
 suffer, loss or destruction of or damage to their personal property and effects 
 in the naval service due to the operations of war or by shipwTeck or other marine 
 disaster when such loss, destruction, or damage was without fault or negligence 
 on the part of the claimant, or where the private property so lost, destroyed, 
 or damaged was shipped on board an unseaworthy vessel by order of an officer 
 authorized to give such order or direct such shipment, or where it appears that 
 the loss, destruction, or damage of or to the private property of the claimant 
 was in consequence of his having given his attention to the saving of the lives 
 of others or of property belonging to the United States which was in danger 
 at the same time and under similar circumstances. And the liability of the 
 Government under this Act shall be limited to such articles of personal property 
 as the Chief of the Bureau of Navigation of the Navy Department, with refer- 
 ence to the personnel of the Navy, or the major general commandant of the 
 Marine Corps, with reference to the persormel of that corps, in his discretion, 
 shall decide to be reasonable, useful, and proper for such officer, enlisted man, 
 or other person while engaged in the public service in line of duty, and the 
 certificate of said chief of bureau or major general commandant, as the case 
 may be, shall be sufficient voucher for and shall be final as to all matters 
 necessary to the establishment and payment or settlement of any claim filed 
 hereunder; and the action of the said chief of bureau or major general com- 
 mandant, as the case may be, upon all claims arising under this Act shall be 
 final, and no right to prosecute a claim or action in the Court of Claims or in 
 
 1492 
 
PL 3. STATUTES AT LARGE. Oct. 6, 1917. 
 
 any other court of the United States, or before any accountmg officer of the 
 United States, or elsewhere, except as herein provided, shall accrue to any 
 person by virtue of this Act: Provided, That the liability of the Government 
 under this Act shall be limited to such articles of personal property as are re- 
 quired by the United States Naval Kegulations and in force at the time of loss 
 or destruction for such officers, petty officers, seamen, or others engaged in the 
 public service in the line of duty : Provided further, That with reference to claims 
 of persons in the Marine Corps filed under the terms of this Act the paymaster 
 of the Marine Corps shall make the reimbursement in money, and the quarter- 
 master of the Marine Corps shall make the reimbursement in kind herein 
 provided for : And provided further, That all claims now existing under this 
 Act shall be presented within two years from the passage hereof and not 
 thereafter; and all such claims hereafter arising shall be presented within two 
 years from the occurrence of the loss, destruction, or damage: And provided 
 further, That the term "in the naval service," as herein employed, shall be 
 held to include service performed on board any vessel, whether of the Navy 
 or not, provided the claimant is serving on such vessel pursuant to the orders 
 of duly constituted naval authority: And provided further, That all claimants 
 under this Act shall be required to submit their claims in writing and under oath 
 to the said Chief of the Bureau of Navigation or major general commandant, 
 as the case may be: And provided further, That claims arising in the manner 
 indicated in this Act and which have been settled under the terms of previously 
 existing law shall be regarded as finally determined and no other or further 
 right of recovery under the provisions hereof shall accrue to persons who have 
 submitted such claims as aforesaid : And provided further. That sections two 
 hundred and eighty-eight, two hundred and eighty-nine, and two hundred and 
 ninety. Revised Statutes, and the Act of March second, eighteen hundred 
 and ninety-five (Twenty-eighth Statutes, page nine hundred and sixty-two), 
 are hereby repealed: And provided further, That reimbursement for loss, 
 destruction, or damage sustained and determined as herein provided shall be 
 made in kind for such articles as are customarily issued to the service and shall 
 be made in money for other articles at the valuation thereof at the time of their 
 loss, destruction, or damage : And provided further, That in cases involving 
 persons in the Navy reimbursement in money shall be made from the appropria- 
 tion "Pay of the Navy," and reimbursement in kind shall be made from the 
 appropriation "Outfits on first enlistment," and in cases involving persons 
 in the Marine Corps reimbursement in money shall be made from the appro- 
 priation "Pay, Marine Corps," and reimbursement in kind shall be made from 
 the appropriation "Clothing, Marine Corps," respectively, current at the time 
 the claim covering such loss, damage, or destruction is paid: And provided 
 further, That the provisions of this Act shall apply to the personnel of the 
 Coast Guard in like manner as to the personnel of the Navy, whether the Coast 
 Guard is operating under the Treasury Department or operating as a part of 
 the Navy, and all of the duties, which, under this Act, devolve upon the major 
 general commandant of the Marine Corps with reference to the personnel of 
 that corps, shall devolve upon the captain commandant of the Coast Guard, 
 and in cases involving persons in the Coast Guard reimbursement in money 
 
 1493 
 
Oct. 6, 1917. PL S. STATUTES AT LARGE. 
 
 shall be made by a disbursing ofTicer of the Coast Guard from the appropriation 
 ■'Coast Guard" and reimbursement in kind shall be made by the captain 
 commandant from the appropriation "Coast Guard." — (40 Stat., 389-391, 
 chap. 85.) 
 
 See notes to sections 288-290, and 3689, Revised Statutes. 
 
 [1917, Oct. 6. Officers of auxiliary naval forces eligible for court-martial 
 duty.] That when actively serving under the Navy Department in time of 
 war or during the existence of an emergency, pursuant to law, as a part of the 
 naval forces of the United States, commissioned officers of the Naval Reserve 
 Force, Marine Corps Reserve, National Naval Volunteers, Naval Militia, Coast 
 Guard, Lighthouse Service, Coast and Geodetic Survey, and Public Health 
 Service are hereby empowered to serve on naval courts-martial and deck courts 
 under such regulations necessary for the proper administration of justice and in 
 the interests of the services involved, as may be prescribed by the Secretary of 
 the Navy. * * * 
 
 And provided further, That any Act or parts of Acts in conflict with the 
 provisions hereof are hereby repealed. — (40 Stat., 393-394, chap. 93.) 
 
 All laws relating to the Naval Militia and the 
 National Naval Volunteers were repealed 
 by act of July 1, 1918 (40 Stat., 708); some 
 proA-isions of law relating to the Naval 
 Militia were revived, until June 30, 1922, 
 by act of June 4, 1920 (41 Stat., 817). 
 
 The omitted portions of this act specifically re- 
 pealed certain prior laws relating to the 
 Naval Militia and National Naval Volun- 
 teers. 
 
 See note to section 1363, Revised Statutes, and 
 laws there cited. 
 
 [1917, Oct. 6. Publication of inventions in time of war restricted; use of by 
 Government.] That whenever during a time when the United States is at war 
 the publication of an invention by the granting of a patent might, in the opinion 
 of the Commissioner of Patents, be detrimental to the public safety or defense 
 or might assist the enemy or endanger the successful prosecution of the war he 
 may order that the invention be kept secret and withhold the grant of a patent 
 until the termination of the war: Provided, That the invention disclosed in the 
 application for said patent may be held abandoned upon it being established 
 before or by the commissioner that in violation of said order said invention has 
 been published or that an application for a patent therefor has been filed in a 
 foreign country by the inventor or his assigns or legal representatives, without 
 the consent or approval of the Commissioner of Patents, or under a license of 
 the Secretary of Commerce as provided by law. 
 
 When an applicant whose patent is withheld as herein provided and who 
 faithfully obeys the order of the Commissioner of Patents above referred to 
 shall tender his invention to the Government of the United States for its use, 
 he shall, if and when he ultimately received a patent, have the right to sue for 
 compensation in the Court of Claims, such right to compensation to begin from 
 the date of the use of the invention by the Government. — (40 Stat., 394-395, 
 chap. 95.) 
 
 See section 4894, Revised Statutes, and refer- "Trading with the enemy Act" of October 
 
 ences thereunder. 6, 1917, section 10 (i) (40 Stat., 422). 
 
 Similar provisions were contained In the 
 
 [1917, Oct. 6. Ratings and pay of enlisted men in the Navy.] That the 
 ratings of engineman, first class, engineman, second class; blacksmith, first 
 
 1494 
 
War Risk Act. Pt. 3. STATUTES AT LARGE. Oct. 6, 1917. 
 
 class, blacksmith, second class; coppersmith, first class, coppersmith, second 
 class; pattern maker, first class, pattern maker, second class; molder, first class, 
 molder, second class ; chief special mechanic and special mechanic, first class, be, 
 and they are hereby, established in the artificer branch of the Navy with the 
 following rates of base pay per month: Engineman, first class, S45; engineman, 
 second class, $40; blacksmith, first class, $65; blacksmith, second class, $50; 
 coppersmith, first class, $65; coppersmith, second class, $50; pattern maker, first 
 class, $65; pattern maker, second class, $50; molder, first class, $65; molder, 
 second class, $50; chief special mechanic, $127; special mechanic, first class, $80: 
 Provided, That the base pay of machinists' mates, second class, and water tenders 
 be, and it is hereby, increased from $40 to $45 per month: Provided further, 
 That all the aforesaid rates of pay shall be subject to such increases of pay and 
 allowances as are, or may hereafter be, authorized by law for enlisted men of 
 the Nary: And provided further , That appointments or enlistments in the said 
 ratings may be made from enlisted men in the Navy or from civil life, respec- 
 tively, and the qualifications of candidates for any of said ratings shall be de- 
 termined in accordance with such regulations as the Secretary of the Navy may 
 prescribe.— (40 Stat., 397, chap. 103.) 
 
 See note to section 1569, Re\ised Statutes, for later laws as to the ratings and pay of 
 enlisted men. 
 
 [1917, Oct. 6. War Risk Insurance; allotments; compensation for death or 
 disability; insurance.] That the first section of the Act entitled ''An Act to 
 authorize the establisliment of a Bureau of War Risk Insurance in the Treasury 
 Department," approved September second, nineteen hundred and fourteen., as 
 amended, is hereby amended to read as follows: 
 
 "Article I. 
 
 "Section 1. That there is established in the Treasury Department a 
 Bureau to be known as the Bureau of War Risk Insurance * * *." — (40 
 Stat., 398, chap. 105.) 
 
 Sec. 2. That such Act of September second, nineteen hundred and four- 
 teen, as amended, is hereby amended by adding new sections, as follows : * * * 
 
 "Sec. 13. [Powers of director.] That the director, subject to the 
 general direction of the Secretary of the Treasury, shall administer, execute, and 
 enforce the provisions of this Act, and for that purpose have full power and 
 authority to make rules and regulations not inconsistent with the provisions 
 of this Act, necessary or appropriate to carry out its purposes, and shall decide 
 all questions arising under the Act, except as otherwise provided in section 
 five * * *.— (40 Stat., 399, chap. 105; 40 Stat., 555, chap. 77.) 
 
 Section 13 is reproduced above as reenacted by act of May 20, 1918 (40 Stat., 555). 
 See note to section 471, Revised Statutes. 
 
 "Sec. 14. [Assistance of navy surgeons.] * * * ^he bureau shall, 
 by arrangement with the Secretary of War and the Secretary of the Navy, respec- 
 tively, make use of the services of surgeons in the Army and Navy. * * *." — 
 (40 Stat., 399, chap. 105.) 
 
 "Sec. 15. [Reports by executive departments.] * * * The director 
 may obtain such information and such reports from officials and employees of 
 
 1495 
 
Oct. 6, 1917 
 
 Pi. 
 
 STATUTES AT LARGE. 
 
 War Risk Act. 
 
 the departments of the Government of the United States and of the States as 
 may be agreed upon by the heads of the respective departments. * * *." — 
 (40 Stat., 399, chap. 105.) 
 
 "Sec. 22. [Definitions.] * * * In Articles 11, III, and IX of this Act 
 unless the context otherwise requires — * * * 
 
 '' (G) The term 'commissioned officer' includes a warrant officer, but 
 includes onl}^ an officer in active service in the military or naval forces of the 
 United States. 
 
 " (7) The terms 'man' and 'enlisted man' mean a person, whether male or 
 female, and whether enlisted, enrolled, or di'afted into active service in the 
 military or naval forces of the United States, and include noncommissioned 
 and petty officers, and members of training camps authorized by law. 
 
 "(8) The term 'enlistment' includes voluntary enlistment, draft, and 
 enrollment in active service in the military or naval forces of the United States. 
 
 " (10) The term 'injury' includes disease. 
 
 "(11) The term 'pay' means the pay for service in the United States 
 according to grade and length of service, excluding all allowances. 
 
 " (12) The. term 'military or naval forces' means the Army, the Navy, the 
 Marine Corps, the Coast Guard, the Naval Reserves, the National Naval Vol- 
 unteers, and any other branch of the United States service while serving pur- 
 suant to law with the Army or the Navy." — (40 Stat., 401-402, chap. 105.) 
 
 "Sec. 28. [Benefits not assignable, nor subject to debts, etc.; 
 EXCEPTION.] That the allotments and family allowances, compensation, and 
 insurance payable under Articles II, III, and IV, respectively, shall not be 
 assignable; shall not be subject to the claims of creditors of any person to 
 whom an award is made under Articles II, III, or IV; and shall be exempt from 
 all taxation : Provided, That such allotments and family allowances, compensa- 
 tion, insurance shall be subject to any claims which the United States may 
 have, under Articles II, III, and IV, against the person on whose account the 
 allotments and family allowances, compensation, or insurance is payable." — 
 (40 Stat., 402, chap. 105; 40 Stat., 609, chap. 104.) 
 
 This section was added, by act of Jvme 25, 1918 
 (40 Stat., 609), to the act of September 2, 
 1914, as amended by act of October 6, 1917 
 (40 Stat., 402). 
 
 By act of December 24, 1919, section G (41 Stat., 
 372), it was provided "that the provisions 
 of section 28 of the war Risk Insurance Act 
 
 K I 
 
 shall not be construed to prohibit the 
 assic:nment by any person to whom con- 
 verted insurance shall be payable under 
 Article IV of such Act of his interest in 
 such insurance to any other member of the 
 permitted class of beneficiaiies." 
 
 Sec. 29. [Discharge or dismissal for cause bar to benefits.] That 
 the discharge or dismissal of any person from the military or naval forces on 
 the ground that he is an enemy alien, conscientious objecter, or a desertor, or 
 as guilty of mutiny, treason, spying, or any offense involving moral turpitude, 
 or willful and persistent misconduct shall terminate any insurance granted on 
 the life of such person under the provisions of Article IV, and shall bar all 
 rights to any compensation under Article III or any insurance under Article 
 IV."— (40 Stat., 402, chap. 105; 40 Stat., 609-610. chap. 104.) 
 
 This section was added, by act of June 25, 1918 (40 Stat., 609), to the act of September 2, 1914 
 as amended by act of October 6, 1917 (40 Stat., 402). 
 
 1496 
 
War Risk Act. Ft. 3. STATUTES AT LARGE. Oct. 6, 1917. 
 
 Article IT. 
 
 ALLOTMENTS AND FAMILY ALLOWANCES. 
 
 Sec. 200. [Persons included by article.] That the provisions of this 
 
 article shall apply to all enlisted men in the military or naval forces of the 
 
 United States, except the Philippine Scouts, the insular force of the Navy, and 
 
 the Samoan native guard and band of the Navy. — (40 Stat., 402, chap. 105; 40 
 
 Stat., 610, chap. 104.) 
 
 This section of the Act of October 6, 1917, was reenacted to read as above by act of June 25, 
 1918, section 3 (40 Stat., GIO). 
 
 Sec. 202. [Voluntary allotments of pay. — That the enlisted man may 
 allot any proportion or proportions or any fixed amount or amounts of his 
 monthly pay or of the proportion thereof remaining after the compulsory 
 allotment, for such purposes and for the benefit of such person or persons as he 
 may direct, subject, however, to such conditions and limitations as may be 
 prescribed under regulations to be made by the Secretary of War and the Secre- 
 tary of the Navy, respectively. — (40 Stat., 403, chap. 105.) 
 
 enlisted man reported as missins; in action 
 shall be considered as occupying a pay 
 status until his actual status has been de- 
 termined by proper official authority of 
 the department in which the man served 
 or is serving: Provided, That payments 
 authorized hereunder shall not continue 
 for more than one year." 
 
 The pro\T.sions of this act, section 201, as to 
 
 "compulsory allotments," are omitted as 
 
 temporary. See also section 211, below, 
 
 as to voluntary allotments. 
 By act of November 4, 1918 (40 Stat., 1024), it 
 
 was pro\ided that "for the purpose of the 
 
 pajTuent of allotments made by the en- 
 listed men * * * under Article II of 
 
 the Act of October 6, 1917, as amended, an 
 
 Sec. 203. [Compulsory deposit of unallotted pay.] That in case one- 
 half of an enlisted man's monthly pay is not allotted, regulations to be made by 
 the Secretary of War and the Secretary of the Navy, respectively, may require, 
 under circumstances and conditions as may be prescribed in such regulations, 
 that an}" proportion of such one-half pay as is not allotted shall be deposited to 
 his credit, to be held during such period of his service as may be prescribed. 
 Such deposit shall bear interest at the same rate as United States bonds bear 
 for the same period, and, when payable, shall be paid principal and interest to 
 the enlisted man, if living, otherwise to any beneficiary or beneficiaries he may 
 have designated, or if there be no such beneficiary, then to the person or persons 
 who, under the laws of the State of his residence, would be entitled to his per- 
 sonal property in case of intestacy. — (40 Stat., 403, chap. 105; 40 Stat., 610, 
 chap. 104.) 
 
 This section of the act of October 6, 1917, was reenacted to read as above by act of June 25, 
 1918, section 5 (40 Stat., 610). 
 
 Sec. 211. [All allotments to be voluntary; payment by war risk 
 bureau discontinued.] That all family allowances and allotments payable 
 by the Bureau of War Risk Insurance under the authority of this article shall 
 be discontinued at the end of the fourth calendar month after the termination 
 of the present war emergency, as declared by proclamation of the President of 
 the United States, and thereafter all allotments of pay shall be voluntary and 
 shall be made under such regulations as may be prescribed by the Secretary of 
 War and the Secretary of the Navy, respectively. — (40 Stat., 405, chap. 105; 
 41 Stat., 372, chap. 16.) 
 
 1497 
 
Oct. 6, 1917. 
 
 PL 3. STATUTES AT LARGE. 
 
 War Risk Act. 
 
 This section was added to the act of October 6, 
 1917 (40 Stat., 405), by act of December 24, 
 1919, section 9 (41 Stat., 372). 
 
 By section 209 of this act, pajTnents of allot- 
 ments were to be made through the Bureau 
 
 of War Risk Insurance. 
 1556, 1575, and 1576, 
 and notes thereto. 
 
 See sections 1430, 
 Revised Statutes, 
 
 Article III. 
 
 COMPENSATION FOR DEATH OR DISABILITY. 
 
 Sec. 300. [Cases in which compensation allowed.] That for death 
 or disability resulting from personal injury suffered or disease contracted in the 
 line of duty, by any commissioned officer or enlisted man, or by any member of 
 the Army Nurse Corps (female) or of the Navy Nurse Corps (female) when 
 employed in the active service under the War Department or Navy Department, 
 the United States shall pay compensation as hereinafter provided; but no com- 
 pensation shall be paid if the injury or disease has been caused by his own will- 
 ful misconduct: Provided, That for the purposes of this section said officer, 
 enlisted man, or other member shall be held and taken to have been in sound 
 condition when examined, accepted, and enrolled for service: Provided further, 
 That this section, as amended, shall be deemed to become effective as of April 
 6, 1917.— (40 Stat., 405. chap. 105; 41 Stat., 373, chap. 16.) 
 
 This section of the act of October 6, 1917, was 
 reenacted to read as above by act of Decem- 
 ber 24, 1919, section 10a (41 Stat., 373); 
 it had pre\dously been reenacted by act of 
 June 25, 1918, section 10 (40 Stat., 611). 
 
 Termination of war does not affect the 
 compensation provisions of this act, which 
 continue in effect. (22 Op. Atty. Gen., 538.) 
 
 Sec. 301. [Burial expenses.] * * * if death occur or shall have 
 occurred subsequent to April 6, 1917, and before discharge or resignation from 
 service, the United States shall pay for burial expenses and the return of body 
 to his home a sum not to exceed $100, as may be fixed by regulations. * * * — 
 (40 Stat., 405, chap. 105; 41 Stat., 372, chap. 16.) 
 
 10 (41 Stat., 372); it had previously been 
 reenacted by act of June 25, 1918 (40 Stat., 
 612). 
 
 The above paragraph, which is a part of sub- 
 division (g), section 301, act of October 6, 
 1917, was reenacted to read as above set 
 forth by act of December 24, 1919, section 
 
 Sec. 302. [Disability compensation, treatment, etc.] That if disa- 
 bility results from the injury — 
 
 (1) If and while the disability is rated as total and temporary, the monthly 
 compensation shall be the following amounts: 
 
 (a) If the disabled person has neither wife nor child living, $80. 
 
 (b) If he has a wife but no child living, $90. 
 
 (c) If he has a wife and one child living, $95. 
 
 (d) If he has a wife and two or more children living, $100. 
 
 (e) If ho has no wife but one child living, $90, with $5 for each additional 
 child. 
 
 (f) If he has a mother or father, either or both dependent on him for sup- 
 port, then, in addition to the above amounts, $10 for each parent so dependent. 
 
 (2) If and while the disability is rated as partial and temporary, the monthly 
 compensation shall be a percentage of the compensation that would be pay- 
 able for his total and temporary disability, equal to the degree of the reduction 
 
 1498 
 
War Risk Act. Pt. S. STATUTES AT LARGE. Oct. 6, 1917. 
 
 in earning capacity resulting from the disability, but no compensation shall be 
 payable for a reduction in earning capacity rated at less than 10 per centum. 
 
 (3) If and while the disability is rated as total and permanent, the rate of 
 compensation shall be $100 per month: Provided, however, That the loss of both 
 feet, or both hands, or the sight of both eyes, or the loss of one foot and one hand, 
 or one foot and the sight of one eye, or one hand and the sight of one eye, or 
 becoming helpless and permanently bedridden, shall be deemed to be total, 
 permanent disability: Provided, further. That for double total, permanent disa- 
 bility the rate of compensation shall be S200 per month. 
 
 (4) If and while the disability is rated as partial and permanent, the 
 monthly compensation shall be a percentage of the compensation that would be 
 payable for his total and permanent disability equal to the degree of the reduc- 
 tion in earning capacity resulting from the disability, but no compensation 
 shall be payable for a reduction in earning capacity rated at less than 10 per 
 centum. * * * 
 
 (5) If the disabled person is so helpless as to be in constant need of a nurse 
 or attendant, such additional sum shall be paid, but not exceeding S20 per 
 month, as the director may deem reasonable. 
 
 (6) In addition to the compensation above provided, the injured person 
 shall be furnished by the United States such reasonable governmental medical, 
 surgical, and hospital services and mth such supplies, including wheeled chairs, 
 artificial limbs, trusses, and similar appliances, as the director may determine 
 to be useful and reasonably necessary, which wheeled chairs, artificial limbs, 
 trusses, and similar appliances may be procured by the Bureau of War Risk 
 Insurance in such manner, either by purchase or manufacture, as the director 
 may determine to be advantageous and reasonably necessary: Provided, That 
 nothing in this Act shall be construed to affect the necessary military control 
 over any member of the military or naval establishments before he shall have 
 been discharged from the military or naval service. 
 
 (7) Where the disabled person and his wife are not living together, or 
 where the children are not in the custody of the disabled person the amount of 
 the compensation shall be apportioned as may be prescribed by regulations. 
 
 (8) The term ''wife" as used in this section shall include ''husband" if 
 the husband is dependent upon the mfe for support. * * * 
 
 (10) That section 302 of the War Risk Insurance Act as amended shall be 
 deemed to be in effect as of April 6, 1917: Provided, That any person who is 
 now receiving a gratuity or pension under existing law shall not receive com- 
 pensation under this Act unless he shall first surrender all claim to such gra- 
 tuity or pension.— (40 Stat., 406, chap. 105; 41 Stat., 373-374, chap. 16.) 
 
 This section of the act of October 6, 1917, was It had previously been amended by acts of 
 
 reenacted"toreadasabovebvact of Decern- June 25, 1918 (40 Stat., 612-613), and Au- 
 
 ber 24, 1919, section 11 (41 Stat., 373-374). gust 6, 1919 (41 Stat., 274). 
 
 Sec. 303. [Medical examinations and treatment; refusal to sub- 
 AUT.] That every person applying for or in receipt of compensation for dis- 
 ability under the provisions of this article shall, as frequently and at such times 
 and places as may be reasonably required, submit himself to examination by a 
 medical officer of the United States or by a duly qualified physician designated 
 or approved by the director. He may have a duly qualified physician desig- 
 
 54641°— 22 95 1499 
 
Oct. 6, 1917. PI. 3. STATUTES AT LARGE. War Risk Act. 
 
 nated and paid by him present to participate in such examination. For all 
 examinations he shall, in the discretion of the director, be paid his reasonable 
 traveling and other expenses and also loss of wages incurred in order to submit 
 to such examination. If he refuses to submit himself for, or in any way ob- 
 structs, any examination, his right to claim compensation under this article 
 shall be suspended until such refusal or obstruction ceases. No compensation 
 shall be payable while such refusal or obstruction continues, and no compensa- 
 tion shall be payable for the intervening period. 
 
 Every person in receipt of compensation for disability shall submit to any 
 reasonable medical or surgical treatment furnished by the bureau whenever 
 requested by the bureau; and the consequences of unreasonable refusal to 
 submit to any such treatment shall not be deemed to result from the injury 
 compensated for.— (40 Stat., 406-407, chap. 105.) 
 
 Sec. 307. [Death to be officially recorded.] That compensation 
 shall not be payable for death in the course of the service until the death be 
 ofiicially recorded in the department under which he may be serving. No com- 
 pensation shall be payable for a period during which the man has been reported 
 ''missing" and a family allowance has been paid for him under the provisions 
 of Ai'ticle II.— (40 Stat., 407, chap. 105.) 
 
 See section 211, above, as to family allowance. 
 
 Sec. 308. [Death for crime; dishonorable discharge.] That no com- 
 pensation shall be payable for death inflicted as a lawful punishment for a 
 crime or military offense except when inflicted by the enemy. A dismissal or 
 dishonorable or bad conduct discharge from the service shall bar and terminate 
 all i:ight to any compensation under the provisions of this article. — (40 Stat., 407, 
 chap. 105.) 
 
 See section 29, above, under Article I. 
 
 Sec. 312. [Compensation excludes benefits under other laws.] 
 That compensation under this article sliall not be paid wliile the person is in 
 receipt of service or retirement pay. The laws providing for gratuities or pay- 
 ments in the event of death in the service and existing pension laws shall not 
 be applicable after the enactment of tliis amendment to any person in the 
 active military t)r naval service on the sixth day of October, nineteen hundred 
 and seventeen, or who tliereafter entered the active military or naval service, 
 or to their widows, children, or their dependents, except in so far as rights under 
 any such law have heretofore accrued. 
 
 Compensation because of disability or death of members of the Army 
 Nurse Corps (female) or of the Navy Nurse Corps (female) shall be in lieu of 
 any compensation for such disability or death under tlie Act entitled ''An Act 
 to provide compensation for employees of the United States suffering injuries 
 while in the performance of their duties, and for other purposes," approved 
 September seventh, nineteen hundred and sixteen. — (40 Stat., 408, chap. 105; 
 40 Stat., 613, chap. 104.) 
 
 This section of the act of October 6, 1917, was 
 reenacted to read as above by act of June 
 25, 1918, section 17 (40 Stat., 613). See 
 also section 302, paragraph (10), above; 
 
 and see note to act of June 4, 1920 (41 Stat., 
 824-825), relating to death gratuities, and 
 note to section 4756, Revised Statutes, 
 relating to service pensions. 
 
 1500 
 
War Bisk Act. PL 3. STATUTES AT LARGE. Oct. 6, 1917. 
 
 Article IV 
 
 INSURANCE. 
 
 Sec. 400. [Persons to whom applicable; amount.] That in order to 
 give to every commissioned officer and enlisted man and to every member of the 
 Army Nurse Corps (female) and of the Navy Nurse Corps (female) when em- 
 ployed in active service under the War Department or Navy Department 
 greater protection for themselves and their dependents than is provided in 
 Ai-ticle III, the United States, upon application to the bureau and without 
 medical examination, shall grant insurance against the death or total permanent 
 disability of any such person in any multiple of $500, and not less than $1,000 
 or more than $10,000, upon the payment of the premiums as hereinafter pro- 
 vided.— (40 Stat., 409, chap. 105.) 
 
 Effect of termination of the war. — Any Any person entering the active service after 
 
 person entering the active ser\-ice within five the expiration of five years fi'om the date of the 
 
 years after the tennination of the war may be termination of the war may not apply for nor 
 
 granted term insurance ]1ro^'iding he applies be granted war risk insurance. (32 Op. Atty. 
 
 for it within 120 days after entering such service. Gen. , 538. ) 
 
 But in order to retain such insurance it must See note above, under section 300 of this act 
 
 be converted ^vithin five years from the date (40 Stat., 405). 
 of the termination of the war. (32 Op. Atty. 
 Gep., 538.) ! 
 
 Sec. 401. [Time for making application.] That such insurance must 
 be applied for within one hundred and twenty days after enlistment or after 
 entrance into or employment in the active service and before discharge or 
 resignation, except that those persons who are in the active war service at the 
 time of the publication of the terms and conditions of such contract of insurance 
 may apply at any time within one hundred and twenty days thereafter and 
 while in such service * * *.— (40 Stat., 409, chap. 105; 41 Stat., 374-375, 
 chap. 16.) 
 
 reenacted by act of June 25, 1918 (40 Stat., 
 
 614). 
 
 This section was reenacted to read as above by 
 act of December 24, 1919, section 12 (41 
 Stat., 374-375'); it had pre^-iously been 
 
 [1917, Oct. 6, sec. 3. Rank of brigadier generals.] That brigadier generals 
 of the Army shall hereafter rank relatively with rear admirals of the lower half 
 of the grade.— (40 Stat., 411, chap. 105.) 
 
 See note to section 1466. Revised Statutes, under '•Relative rank of brigadier generals and 
 rear admirals of the lower half." 
 
 [1917, Oct. 6, sec. 10 (i). Publication of inventions in time of war restricted ; 
 use of by Government.] Wlienever the publication of an invention by the 
 granting of a patent may, in the opinion of the President, be detrimental to the 
 public safety or defense, or may assist the enemy or endanger the successful 
 prosecution of the war, he may order that the invention be kept secret and 
 withhold the grant of a patent until the end of the war: Provided, That the 
 invention disclosed in the application for said patent may be held abandoned 
 upon it being established before or by the Commissioner of Patents that, in 
 violation of said order, said invention has been published or that an application 
 for a patent therefor has been filed in any other country, by the inventor or his 
 assigns or legal representatives, without the consent or approval of the com- 
 missioner or imder a ficense of the President. 
 
 1501 
 
Mar. 28, 1918. PL .?. STATUTES AT LARGE. 
 
 When i\\\ ;i})j)lk'aiit whose patent is withheld as herein provided and who 
 faithfully obeys the order of the President above referred to shall tender his 
 invention to the Government of the United States for its use, he shall, if he 
 ultimately receives a patent, have the right to sue for compensation in the 
 Court of Claims, such right to compensation to begin from the date of the use 
 of the invention by the Government. — (40 Stat., 422, chap. 106.) 
 
 Similar pro\'isions were contained in act of i See section 4894, Revised Statutes, and refer- 
 
 October (i, 1917 (40 Stat., 394-395, chap. 95). j ences thereunder. 
 
 The abo^•o ])aragi"a}ili was jiart of section 10 of 
 
 the "Trading with the enemy Act." | 
 
 [1917, Dec. 20. Number of midshipmen.] That hereafter there shall be al- 
 lowed at the United States Naval Academy five midshipmen for each Senator, 
 Representative, Delegate in Congress, and Resident Commissioner from Porto 
 Rico, and five for the District of Columbia, fifteen appointed each year at large, 
 and on3 hundred appointed annually from enlisted men of the Navy, and mem- 
 bers of the Naval Reserve Force on active duty, as now authorized by law. 
 
 Sec. 2. That all Acts or parts of Acts inconsistent with the provisions of 
 this Act are hereby repealed. — (40 Stat., 430, chap. 5; 41 Stat., 140, chap. 9.) 
 
 The first section of this act was expressly Qualifications for appointment of midshipmen 
 amended and reenacted to read as above from enlisted men of the Navj' were pre- 
 
 set forth by act of July 11, 1919 (41 Stat., scribed by act of March 4, 1917 (39 Stat 
 
 140). 1182). 
 
 See note to section 1513, Re\dsed Statutes, 
 for other laws relating to the number of 
 midshipmen. 
 
 [1918, Feb. 11. Dominican Republic; detail of naval personnel to assist.] 
 That the President of the United States be, and he is hereby, authorized, in his 
 discretion, to detail to assist the Domhiican Republic, officers and enlisted men of 
 the United States Navy and the United States Marine Corps: Provided, That 
 officers and enlisted men so detailed be, and they are hereby, authorized to 
 accept from the Government of the Dominican Republic offices under said 
 Government with compensation and emoluments from the said Dominican 
 Republic, subject to the approval of the President of the United States: Pro- 
 vided further, That while so detailed such officers and enlisted men shall receive, 
 in addition to the compensation and emoluments allowed them by the Domin- 
 ican Republic, the pay and allowances of their rank or rating in the United 
 States Navy or United States Marine Corps, as the case may be, and they shall 
 be entitled to the same credit, while so serving, for longevity, retirement, for- 
 eign-service pay, and for all other purposes that they would receive if they 
 were serving with the United States Navy or Marine Corps in said Dominican 
 Republic— (40 Stat., 437, chap. 15.) 
 
 See act of June 12, 1916 (39 Stat., 223), as to 
 Haiti; joint resolution of October 13, 1914 
 (38 Stat., 780), as to IJrazil; and act of June 
 
 5, 1920 (41 Stat., 1056), as to all South 
 American Republics; see also note to 
 Constitution, Article I, section 9, clause 8. 
 
 [1918, Mar. 28. Navy Building, supervision of.] The maintenance and 
 protection of all of the foregoing temporary buildings when completed shall be 
 under the supervision and direction of the superintendent of the State, War, 
 and Navy Department Buildings. — (40 Stat., 483, chap. 28.) 
 
 1502 
 
PL 3. STATUTES AT LARGE. 
 
 Apr. 10, 1918. 
 
 and temporary buildings for the War De- 
 partment. 
 See note to section 415, Re\dsed Statutes. 
 
 This paragraph followed appropriations for 
 the erection of a temporary office building 
 for the Navy Department at Seventeenth 
 and B Streets, in Potomac Park, D. C, 
 
 [1918, Mar. 28, sec. 2. Lump-sum employees; restriction on pay of.] That 
 all branches of the government of the District of Columbia shall be considered a 
 governmental establishment for the purposes of section seven of the deficiency 
 appropriation Act approved October sixth, nineteen hundred and seventeen. — 
 
 (40 Stat., 498, chap. 28.) 
 
 See act of October 6, 1917, section 7 (40 Stat., 383-384). 
 
 [1918, Mar. 29. Deceased persons, naval service; disposition of effects.] 
 That hereafter all moneys, articles of value, papers, keepsakes, and other similar 
 effects belonging to deceased persons in the naval service, not claimed by their 
 legal heirs or next of kin, shall be deposited in safe custody, and if any such 
 moneys, articles of values, papers, keepsakes, or other similar effects so depos- 
 ited have been, or shall hereafter be, unclaimed for a period of two years from 
 the date of the death of such person, such articles and effects shall be sold and 
 the proceeds thereof, together with the moneys above mentioned, shall be 
 deposited in the Treasury to the credit of the Navy pension fund: Provided, 
 That the Secretary of the Navy is hereby authorized and directed to make dili- 
 gent mquiry in every instance after the death of such person to ascertain the 
 whereabouts of his heirs or next of kin, and to prescribe such regulations as 
 may be necessary to carry out the foregoing provisions: Provided further, That 
 claims may be presented hereunder at any time within five years after such 
 moneys or proceeds have been so deposited in the Treasury, and, when supported 
 by competent proof in any case after such deposit in the Treasury, shall be certi- 
 fied to Congress for consideration. — (40 Stat., 499, chap. 31.) 
 
 See note to section 289, Revised Statutes ; see also act of May 27, 1908 ( 35 Stat. , 373). 
 
 [1918, Apr. 2. Naval officers dropped for unauthorized absence, etc.] That 
 the President is hereby authorized to drop from the rolls of the Navy or Marine 
 Corps any officer thereof who is absent from duty without leave for a period 
 of three months or more, or who, having been found guilty by the civil authori- 
 ties of any offense, is finally sentenced to confinement in a State or Federal 
 
 penitentiary: Provided, That no officer so dropped shall be eligible for reap- 
 pointment. — (40 Stat., 501, chap. 39.) 
 
 See sections 1229, 1441, and 1624, articles 36 and 
 37, Revised Statutes, and notes thereto; 
 see also note to preamble, section 1624, Re- 
 
 ^^sed Statutes, under "Persons discharged 
 from the Navy." 
 
 [1918, Apr. 10. Retired warrant and chief warrant officers; pay on active 
 duty.] That any retired chief warrant officer who has been on active duty 
 since August twenty-ninth, nineteen hundred and sixteen, or who may hereafter 
 perform active duty, and whose record is creditable, shall, during such time as 
 he has been or may hereafter be, on active duty, and from the time his service 
 on the active list after date of commission, plus his service on active duty 
 while on the rethed list, is equal to six years, receive the pay and allowances 
 that are now, or may hereafter be, allowed a lieutenant (junior grade). United 
 
 1503 
 
Apr. 20, 1918. I'l. S. STATUTES AT LARGE. 
 
 States Navy; aiul shall, durinj; such tunc as he has ])een, or may hereafter be, 
 
 on active duty, and from the time such total service is equal to twelve years, 
 
 receive the pay and allowances that are now, or may hereafter be, allowed a 
 
 lieutenant, United States Navy. 
 
 Sec. 2. That any retired warrant officer who has been on active duty since 
 
 August twenty-ninth, nineteen hundred and sixteen, or who may hereafter 
 
 perform active duty, and whose record is creditable, shall, during such time as 
 
 he has been or may hereafter be on active duty, and from the time his service 
 
 on the active list after date of warrant, plus his service on active duty while 
 
 on the retired list, is equal to twelve years, receive the pay and allowances that 
 
 are now or may hereafter be allowed a lieutenant (junior gi-ade), United States 
 
 Navy; and shall, during such time as he has been or may hereafter be on active 
 
 dut}', and from the time such total service is equal to eighteen years, receive 
 
 the pay and allowances that are now or may hereafter be allowed a lieutenant, 
 
 United States Navy.— (40 Stat., 516, chap. 49.) 
 
 See note to section 1592, Re\'ised Statutes, as Other provisions allowing increased pay tocom- 
 to pay of retired olHcers on active duty; missioned and warrant officers on active 
 
 and see note to section 1556, Revised Stat- duty were contained in act of July 1, 1918 
 
 utos, under "25. Warrant officers, acting (40 Stat., 717). 
 
 warrant officers, and commissioned warrant 
 officers," for decisions as to what consti- 
 tutes a "creditable" record. 
 
 [1918, Apr. 18. Claims for damages by American forces aboard.] That 
 claims of inhabitants of France or of any other European country not an enemy 
 or ally of an enemy for damages caused by American military forces may be 
 presented to any officer designated by the President, and when approved by 
 such an officer shall be paid under regulations made by the Secretary of War. 
 
 Sec. 2. That claims under this statute shall not be approved unless they 
 would be payable according to the law or practice governing the military forces 
 of the country in which they occur. 
 
 Sec. 3. That hereafter appropriations for the incidental expenses of the 
 Quartermaster Corps shall be available for paying the claims herein described. 
 
 Sec. 4. That this statute does not supersede other modes of indemnity 
 now in existence and does not diminish responsibility of any member of the 
 military forces to the person injured or to the United States. — (40 Stat., 532, 
 chap. 57.) 
 
 See act of June 24, 1910 (36 Stat., 607), and references thereunder. 
 
 [1918, Apr. 20. Destruction of war material, or war premises, etc.] That 
 the words "war material," as used herein, shall include arms, armament, 
 ammunition, live-stock, stores of clothing, food, foodstuffs, or fuel; and shall 
 also include supplies, munitions, and all other articles of whatever description, 
 and any part or ingredient thereof, intended for, adapted to, or suitable for 
 the use of the United States, or any associate nation, in connection with the 
 conduct of the war. 
 
 The words "war premises," as used herein, shall include all buildings, 
 grounds, mines, or other places wherein such w^ar material is being produced, 
 manufactured, repaired, stored, mined, extracted, distributed, loaded, unloaded, 
 or transported, together with all machinery and appliances therein contained; 
 
 1504 
 
NaturaUzation. Pt. 3. STATUTES AT LARGE. May 9, 1918. 
 
 and all forts, arsenals, navy yards, camps, prisons, or other military or naval 
 stations of the United States, or any associate nation. 
 
 The words, "war utilities," as used herein, shall include all railroads, rail- 
 ways, electric lines, roads of whatever description, railroad or railwa}^ fixture, 
 canal, lock, dam, wharf, pier, dock, bridge, building, structure, engine, machine, 
 mechanical contrivance, car, vehicle, boat, or aircraft, or any other means of 
 transportation whatsoever, whereon or whereby such war material or any 
 troops of the United States, or of any associate nation, are being or may be 
 transported either within the limits of the United States or upon the high seas; 
 and all dams, reservou-s, aqueducts, water and gas mains and pipes, structures 
 and buildings, whereby or in connection with which water or gas is being 
 furnished, or may be furnished, to any war premises or to the military or naval 
 forces of the United States, or any associate nation, and all electric light and 
 power, steam or pneumatic power, telephone and telegraph plants, poles, 
 wires, and fixtures and wireless stations, and the buildings connected with the 
 maintenance and operation thereof used to supply water, light, heat, power, 
 or facilities of communication to any war premises or to the military or naval 
 forces of the United States, or any associate nation. — (40 Stat., 533, chap. 59.) 
 
 The words "United States" shall include the Canal Zone and all territory- 
 and waters, continental and insular, subject to the jurisdiction of the United 
 States. 
 
 The words " associate nation," as used in this Act, shall be deemed to mean 
 any nation at war with any nation with which the United States is at war. 
 
 Sec. 2. That when the United States is at war, whoever, with intent to 
 mjure, interfere with, or obstruct the United States or any associate nation in 
 preparing for or carrv'ing on the war, or whoever, with reason to believe that 
 his act may mjure, interfere with, or obstruct the United States or any associate 
 nation in preparmg for or carr\'ing on the war, shall willfully injm"e or destroy, 
 or shall attempt to so injure or destroy, any war material, war premises, or 
 war utilities, as herein defined, shall, upon conviction thereof, be fined not 
 more than S10,000 or imprisoned not more than thu'ty years, or both. 
 
 Sec. 3. That when the United States is at war, whoever, with intent to 
 injure, interfere with, or obstruct the United States or any associate nation 
 in preparing for or carrying on the war, or whoever, with reason to believe 
 that his act may injure, interfere with, or obstruct the United States or any 
 associate nation in preparing for or carrying on the war, shall willfully make 
 or cause to be made in a defective manner, or attempt to make or cause to 
 be made in a defective manner, any war material, as herein defined, or any 
 tool, implement, machine, utensil, or receptacle used or employed in mak- 
 ing, producing, manufacturing, or repairing any such war material, as 
 herein defined, shall, upon conviction thereof, be fined not more than $10,000 
 or imprisoned not more than thirty years, or both.— (40 Stat., 534, chap. 59.) 
 
 See Criminal Code, act of March 4, 1909, section 45 (35 Stat.. 1097). 
 
 [1918, May 9. Naturalization of aliens in the naval service, etc.] That 
 section four of the Act entitled ''An Act to establish a Bm-eau of Immigration 
 and Naturalization and to provide a uniform rule for the naturalization of 
 aliens throughout the United States," approved June twenty-ninth, nineteen 
 
 1505 
 
May 9, 1918. Pt. 3. STATUTES AT LARGE. Naturalization. 
 
 hundred and six, be, and is hereby, amended by adding seven new subdivisions 
 as follows : 
 
 "Seventh. Any native-born Filipino of the age of twenty-one years and 
 upward who has declared his intention to become a citizen of the United States 
 and who has enlisted or may hereafter enlist in the United States Navy or 
 ]\Iarine Corps or the Naval Auxiliary Service, and who, after service of not less 
 than tliree years, may be honorably discharged therefrom, or who may receive 
 an ordinary discharge with recommendation for rcenlistment; or any alien, or 
 any Porto Rican not a citizen of the United States, of the age of twenty-one 
 years and upward, who has enlisted or entered or may hereafter enlist in or 
 enter the armies of the United States, either the Regular or the Volunteer 
 Forces, or the National Army, the National Guard or Naval Militia of any 
 State, Territory, or the District of Columbia, or the State militia in Federal 
 service, or in the United States Navy or Marine Corps, or in the United States 
 Coast Guard, or who has served for three years on board of any vessel of the 
 United States Government, or for tliree years on board of merchant or fishing 
 vessels of the United States of more than twenty tons burden, and while still in 
 the service on a rcenlistment or reappointment, or within six months after an 
 honorable discharge or separation therefrom, or wliile on furlough to the Army 
 Reserve or Regular ^irmy Reserve after honorable service, may, on presenta- 
 tion of the required declaration of intention petition for naturalization without 
 proof of the required five years' residence within the United States if upon 
 examination by the representative of the Bureau of Naturalization, in accord- 
 ance with the requirements of this subdivision it is shown that such residence 
 can not be established; any alien serving in the military or naval service of the 
 United States during the time this country is engaged in the present war may 
 file his petition for naturalization without making the preliminary declaration 
 of intention and without proof of the required five years' residence within the 
 United States; any alien declarant who has served in the United States Army 
 or Navy, or the Philippine Constabulary, and has been honorably discharged 
 therefrom, and has been accepted for service in either the military or naval 
 service of the United States on the condition that he becomes a citizen of the 
 United States, may file his petition for naturalization upon proof of continuous 
 residence within the United States for the three years immediately preceding 
 his petition, by two witnesses, citizens of the United States, and in these cases 
 only residence in the Philippine Islands and the Panama Canal Zone by aliens 
 may be considered residence within the United States, and the place of such 
 military service shall be construed as the place of residence required to be 
 established for purposes of naturalization; and any alien, or any person owing 
 permanent allegiance to the United States embraced within this subdivision, 
 may file his petition for naturalization in the most convenient court wdthout 
 proof of residence within its jurisdiction, notwithstanding the limitation upon 
 the jurisdiction of the com-ts specified in section three of the Act of June twenty- 
 ninth, nineteen hundred and six, provided he appears with liis two witnesses 
 before the appropriate representative of the Bureau of NaturaHzation and 
 passes the preliminary examination hereby required before filing his petition 
 for naturalization in the office of the clerk of the court, and in each case the 
 
 1506 
 
Naturalization. Ft. 3. STATUTES AT LARGE. May 9, 1918. 
 
 record of this examination shall be offered in evidence by the representative 
 of the Government from the Bureau of Naturalization and made a part of the 
 record at the original and any subsequent hearings; and, except as otherwise 
 herein provided, the honorable discharge certificate of such alien, or person 
 owing permanent allegiance to the United States, or the certificate of service 
 showing good conduct, signed by a duly authorized officer, or by the masters 
 of said vessels, shall be deemed prima facie evidence to satisfy all of the require- 
 ments of residence within the United States and within the State, Territory, 
 or the District of Columbia, and good moral character required by law, when 
 supported by the affidavits of two %\'itnesses, citizens of the United States 
 identifying the applicant as the person named in the certificate or honorable 
 discharge, and in those cases only where the alien is actually in the military 
 or naval service of the United States, the certificate of arrival shall not be filed 
 with the petition for natui'alization in the manner prescribed; and any petition 
 for naturalization filed under the provisions of this subdivision may be heard 
 immediately, notwithstanding the law proliibits the hearing of a petition for 
 naturalization during thirty days preceding any election in the jurisdiction 
 of the court * * *.— (40 Stat., 542-543, chap. 69.) 
 
 See act of August 29, 1916 (39 Stat., 587), as 
 amended by act of May 22, 1917 (40 Stat., 
 84), with respect to naturalization of 
 members of the Naval Reserve Force; and 
 
 see notes to Constitution, Article I, sec- 
 tion 8, clause 4; Article IV, section 3, 
 clause 2; and fourteenth amendment. 
 
 [1918, May 14. Ag^e of candidates for Naval Academy.] That hereafter all 
 candidates for admission to the Xaval Academy must be not less than sixteen 
 years of age nor more than twenty years of age on April first of the calendar 
 year in which they enter the academy: Provided, That the foregoing shall not 
 apply to candidates for midshipmen designated for entrance to the academy in 
 nineteen hundred and eighteen. — (40 Stat., 550, chap. 73.) 
 See note to section 1517, Revised Statutes. 
 
 [1918, July 1. Government fuel yards, District of Columbia.] The Secretary 
 of the Interior is authorized and directed to establish in the District of Columbia 
 storage and distributing yards for the storage of fuel for the use of and delivery 
 to all branches of the Federal service and the municipal government in the 
 District of Columbia and such parts thereof as may be situated immediately 
 without the District of Columbia and economically can be supplied therefrom, 
 and to select, purchase, contract for, and distribute all fuel required by the said 
 services. Authority is granted the Secretary of the Interior, in connection 
 with the establishment of the said yards, to procure by purchase, requisition 
 for immediate use, condemnation, or lease for such period as may be necessary, 
 land, wharves, and railroad trestles and sidings requisite therefor. All branches 
 of the Federal service and the municipal government in the District of Columbia, 
 from and after the establishment of the said fuel yards, shall purchase all fuel 
 from the Secretary of the Interior and make payment therefor from applicable 
 appropriations at the actual cost thereof to the United States, including aU 
 expenses connected therewith * * *. — (40 Stat., 672-673, chap. 113.) 
 
 By act of July 11, 1919 (41 Stat., 148), it was j except the naval hospital, in the District 
 
 pro\ided that the above enactment of of Columbia." 
 
 July 1, 1918, "shall not apply to the fuel See act of June 5, 1920 (41 Stat., 913). 
 required for the Xaval Establishment, 
 
 1507 
 
July 1, 1918. PL S. STATUTES AT LARGE. 
 
 [1918, July 1. Claims for damages by naval forces abroad.] That hereafter 
 the Secretary of the Nuav is authorized to consi(ku-, ascertain, adjust, determine, 
 and pay the amounts tlue on all chxims for damages to and loss of private prop- 
 erty of inliabitants of any European country not an enemy or ally of an enemy 
 when the amount of the claim does not exceed the sum of $1,000, occasioned and 
 caused by men in the naval service during the period of the present war, all 
 payments in settlement of such claims to be made out of "Pay, Miscellane- 
 ous."— (40 Stat., 705, chap. 114.) 
 
 See act of June 24, 1910 (36 Stat., 607), and references thereunder. 
 
 [1918, July 1. Improvements on land leased by the Navy.] The Secretary of 
 the Navy is authorized in leasing water-front property from any State or munici- 
 pality where the State law or charter of the municipality requires that the 
 improvements placed upon leased lands shall at the termination of the lease 
 become the property of the State or municipality, to provide, as a part or all of 
 the consideration therefor, that improvements placed thereon by the United 
 States shall become the property of the lessor upon the expiration of the lease 
 or any renewal thereof. — (40 Stat., 705, chap. 114.) 
 
 See note to section 355, Re\'ised Statutes. 
 
 [1918, July 1. Salvage by naval vessels.] That hereafter the Secretary of 
 the Navy is authorized to cause vessels under his control adapted to the purpose, 
 to afford salvage service to public or private vessels in distress: Provided, 
 That when such salvage service is rendered by a vessel specially equipped for 
 the purpose or by a tug, the Secretary of the Navy may determine and collect 
 reasonable compensation therefor. — (40 Stat., 705, chap. 114.) 
 
 See sections 1536 and 4642, Revised Statutes, and March 9, 1920, sections 10 and 11 
 
 and acts of August 1, 1912 (37 Stat., 242), (41 Stat., 528). 
 
 [1918, July 1. Hydrographic Office, naval officers detailed to.] That the 
 Secretary of the Navy is authorized to detail such naval officers as may be 
 necessary to the Hydrographic Office. — (40 Stat., 708, chap. 114.) 
 
 This provision was repeated in acts of July 11, 
 1919 (41 Stat., 135), and June 4, 1920 (41 
 Stat., 816). 
 
 See section 431, Revised Statutes, and note 
 thereto. 
 
 [1918, July 1. Naval Militia and National Naval Volunteers abolished. 
 Naval Reserve Force, rank of members.] That upon the approval of this 
 Act all laws heretofore enacted by the Congress relating to the Naval Militia 
 and the National Naval Volunteers be, and the same hereby are, repealed; 
 and the President is authorized to transfer as a class all members of the 
 National Naval Volunteers to the class "the Naval Reserve," "the Naval 
 Reserve Flying Corps," or "the Marine Corps Reserve" of the Naval Reserve 
 Force or the Marine Corps Reserve, for general service, in the confirmed rank, 
 grade, or rating they now hold in the National Naval Volunteers, regardless of 
 their being members of a State military force, and without examination and 
 the necessity of executing or filing a new oath and acceptance of office; that until 
 such transfer is affected members of the National Naval Volunteers shall retain 
 their present status and be entitled to receive the same pay, allowances, 
 
 1508 
 
Rank of members of the Naval Reserve Force: 
 
 See act of August 29, 1916 (39 Stat., 587), 
 and see pro\'ision of this act (40 Stat., 711) 
 set forth below, as to promotion in the 
 Naval Reserve Force. 
 
 PL 3. STATUTES AT LARGE. July 1, 1918. 
 
 gratuities, and other benefits as heretofore provided by law, and shall con- 
 tinue subject to the laws prescribed for the government of the Navy; that 
 all members of the Naval Reserve Force shall be eligible for reenrollment in 
 the rank, grade, or rating held on the termination of their last enrollment; 
 that no enrollments or promotions shall be made in any rank or grade above 
 that of lieutenant commander, except as herein otherwise provided. — (40 Stat., 
 708, chap. 114.) 
 
 See act of August 29, 1916 (39 Stat., 587-593), 
 
 creating the Naval Reserve Force and 
 
 Marine Corps Reserve. 
 Some legislation relating to the Naval Militia 
 
 was re\'ived, until June 30, 1922, bv act 
 
 of June 4, 1920 (41 Stat., 817). 
 
 [1918, July 1. Medical and Dental Eeserve Corps abolished.] That all 
 laws heretofore enacted by Congress relating to the Medical Reserve Corps 
 and Dental Reserve Corps be, and the same hereby are, repealed: Provided, 
 That members of the Medical Reserve Corps and Dental Reserve Corps may 
 be enrolled in the Naval Reserve Force in their present grades and ranks. — 
 (40 Stat., 708, chap. 114.) 
 
 See note to section 1368, Re\dsed Statutes, as to the organization of the Medical Department 
 of the Navy. 
 
 [1918, July 1. Naval Reserve, age limits; minimum active service.] That 
 the age limits for the several ranks, grades, and ratings on first enrollment 
 in the Naval Reserve shall be as prescribed by the Secretary of the Navy. 
 
 That the minimum active service required for maintaining the efficiency 
 of a member of the Naval Reserve shall be two months durmg each term of 
 enrollment and an attendance at not less than thirty-six drills during each year, 
 or other equivalent duty. The active service may be in one period or in 
 periods of not less than fifteen days each. — -(40 Stat., 710, chap. 114.) 
 
 See act of August 29, 1916 (39 Stat., 591), relating to the Naval Reserve. 
 
 [1918, July 1. Naval Eeserve Force, retainer pay and retirement.] That 
 the annual retainer pa}^ of members of the Naval Reserve Force, except officers 
 in the Naval Auxiliary Reserve and transferred members of the Fleet Naval 
 Reserve, after confirmation in rank, grade, or rating, shall be the equivalent 
 of two months' base pay of the corresponding rank, grade, or rating in the Navy, 
 but the highest base pay upon which the retainer pay of officers of the Naval 
 Reserve Force shall be computed shall not be greater than the base pay of a 
 lieutenant commander. Service in the Navy, Marine Corps, National Naval 
 Volunteers, and Naval ]VIilitia shall be counted as continuous service in the 
 Naval Reserve Force, both for the purpose of retirement and of computing re- 
 tainer pay: Provided, That no member of the Naval Reserve Force shall be 
 eligible for retirement other than for physical disability incurred in line of duty: 
 Provided further. That no retainer pay of any member of the Naval Reserve 
 Force except those enlisted men transferred to the Fleet Naval Reserve after 
 sixteen or twenty or more years' naval service shall be in excess of the amount 
 authorized to members having had sixteen years' continuous service therein. — 
 (40 Stat., 710-711. chap. 114.) 
 
 1509 
 
July 1, 1918. 
 
 Pt. 3. STATUTES AT LARGE. 
 
 See note to section 1556, Revised J^tatutes, as 
 to jmy of Naval Reserve Force. 
 
 Retirement of enrolled members of the Naval 
 Reserve Force, after 20 years' service, and 
 of transferred members, after 30 years' 
 serAice, was authorized by act of Aup;ust 29, 
 1916 (39 Stat., 588 and 591); retirement of 
 officers of the Naval Reserve Force for 
 
 physical disability in line of duty was 
 authorized by act of June 4, 1920, section 
 2 (41 Stat., 834). 
 Marine Corps Resei've. — The provisions 
 
 of this paragraph as to retirement for physical 
 
 disability apply to the Marine Corps Reserve. 
 
 (File 26253-737, Oct. 16, 1919; see note to act 
 
 of Aug. 29, 1916, 39 Stat., 593.) 
 
 [1918. July 1. Naval Reserve Force, active duty; uniform gratuity ; retainer 
 pay while on active duty.] That in time of peace the Secretary of the Nav}' is 
 autliorized, in his discretion, to order any member of the Naval Reserve Force, 
 with his consent, who has been confirmed in his rank, grade, or rating, to per- 
 form any duty afloat for any period of time for which his services may be re- 
 quired: Provided, That such members may be relieved from duty by the Secre- 
 tary of the Navy at any time and shall upon their own application be released 
 from said duty within four months from the date of their application therefor. 
 
 That the uniform gratuity for the members, other than officers, of each class 
 of the Naval Reserve Force shall be the same as that prescribed for enlisted 
 men of the Navy, but in time of peace the Secretary of the Navy shall prescribe 
 the portion of the clothing gratuity to be issued to such members, other than 
 officers, of the Naval Reserve Force. 
 
 That in time of peace no member of any class of the Naval Reserve Force 
 shall be entitled to retainer pay when assigned to active duty for purposes other 
 than training. 
 
 That no part of the clothing gratuity credited to members of the Naval 
 Reserve Force shall be deducted from their accomits where said members accept 
 or have accepted temporary appointments in the Navy in time of war or other 
 national emergency. — (40 Stat., 711, chap. 114.) 
 
 As to uniform gratuity and retainer pay of the As 
 Naval Reserve Force, see note to section 
 1556, ReAised Statutes, under "37. Naval 
 Reserve Force." 
 
 [1918, July 1. Naval Reserve Force, disenrollment for age; promotion; pre- 
 cedence; command.] That members of the Naval Reserve Force shall upon 
 reaching the age of sixty-four years be disenrolled except that in time of war or 
 other national emergency such members of the Naval Reserve Force, if in active 
 service, may be continued therein during such period as the Secretary of the 
 Navy may determine, but not longer than six months after said war or other 
 national emergency shall cease to exist. 
 
 That no officer of any class of the Naval Reserve Force shall in time of peace 
 be promoted above the grade of lieutenant commander, but in time of war or 
 other national emergency officers of the Naval Reserve Force of and above the 
 rank of lieutenant commander in active service shall be eligible for selection for 
 promotion to the next higher grade or rank by the same board of officers that 
 selects officers of the United States Navy for promotion to such higher ranks and 
 grades, under the same rules and regulations as apply to the selection for pro- 
 motion of officers of the United States Navy. The promotion of officers of the 
 Naval Reserve Force below the rank of lieutenant commander shall at all 
 times be in accordance with such regulations as the Secretary of the Navy may 
 prescribe. 
 
 to active service in the Naval Reserve 
 Force, see act of August 29, 1916 (39 Stat., 
 587-589). 
 
 1510 
 
PL 3. Statutes at large. juiy i, 1918. 
 
 That when on active duty officers of the Naval Reserve Force shall take 
 precedence among themselves and with other officers of the naval service in 
 their respective grades or ranks according to the dates of their commissions or 
 provisional assignment of rank in the Naval Reserve Force: Provided, That all 
 officers of the Naval Reserve Force of and above the rank of lieutenant com- 
 mander shall rank with but after officers of the same rank or grade in the United 
 States Navy, except that in time of war or other national emergency such 
 officers of the Naval Reserve Force shall have a date of precedence with officers 
 of the United States Navy as of the date of general mobilization, to be estab- 
 lished by the Secretary of the Navy: Provided further, That during the present 
 emergency the date of precedence of all officers of the Naval Reserve Force 
 shall be as prescribed by the Secretary of the Navy. 
 
 No officer of the Naval Coast Defense Reserve or officer of the Naval 
 Reserve Flying Corps shall exercise command except within his particular 
 department or service for the due performance of his respective duties. — (40 
 Stat., 711, chap. 114.) 
 
 As to promotion by selection in the Navy, see acts of August 29, 1916 (39 Stat., 578-579), 
 and July 1, 1918 (40 Stavt., 718). 
 
 [1918, July 1. Naval Reserve Force, pay and discipline; wearing of uniform 
 when not in active service.] Members of the Naval Reserve Force when employ- 
 ed in active service, ashore or afloat, under the Navy Department shall receive 
 the same pay and allowances as received by the officers and enlisted men of the 
 Regular Navy of the same rank, grades, or ratings and of the same length of 
 service, which shall include service in the Navy, Marine Corps, Naval Reserve 
 Force, Naval Militia, National Naval Volunteers, or Marine Corps Reserve. * * * 
 
 Enrolled members of the Naval Reserve Force when in active service shall 
 be subject to the laws, regulations, and orders for the government of the Regular 
 Navy, and the Secretary of the Navy may, in his discretion, permit the members 
 of the Naval Reserve Force to wear the uniform of their respective ranks, 
 grades, or ratings while not in active service, and such members shall, for any 
 act committed by them while wearing the uniform of their respective ranks, 
 grades, or ratings, be subject to the laws, regulations, and orders for the govern- 
 ment of the Regular Navy.— (40 Stat., 712, chap. 114.) 
 
 As to pay of Naval Reserve Force, see note to 
 section 1556, ReAdsed Statutes, under "37. 
 Naval Reserve Force." 
 
 As to amenability of members to trial by naval 
 court-martial, see note to preamble of sec- 
 tion 1624, Revised Statutes. 
 
 [1918, July 1. Authorized enlisted strength of the Navy.] That the au- 
 thorized enlisted strength of the active list of the Navy is hereby increased 
 from eighty-seven thousand to one hundred and thirty-one thousand four 
 hundred and eighty-five. — (40 Stat., 714, chap. 114.) 
 
 See act of June 3, 1916, section 125 (39 Stat., 
 216-217), and note thereto, Avith respect to 
 unauthorized wearing of the uniform. 
 
 Subsequent provisions of tliis act reenacted 
 section 1 of the act of May 22, 1917 (40 Stat. , 
 84), and in such reenactment embodied a 
 definition of the words "authorized enlist- 
 ed strength." (See the act last cited for 
 definition.) 
 
 See note to section 1417, RoA-ised Statutes, as 
 to enlisted strength of the Navy; see also 
 act of August 29, 1916 (39 Stat., 575), and 
 references thereunder. 
 
 1511 
 
July 1, 1918. PL 3. STATUTES AT , ARGE. 
 
 <■■ 
 [1918, July 1. Major generals authorized, Marine Corps.] The rank and 
 
 title of Major General is hereby created in the Marine Corps, and the President 
 
 is authorized to nominate, and, by and with the advice and consent of the 
 
 Senate, to appoint one Major General, who shall at all times be jmiior in rank 
 
 to the Major General Commandant, and also one temporary Major General in 
 
 the Marine Corps, who shall at all times be junior to the permanent Major 
 
 General.— (40 Stat., 715, chap. 114.) 
 
 See note to section 1596, Re^dsed Statutes, as 
 to niunber and grades of officers in the 
 Marine Corps. 
 
 A subsequent provision of this act (40 Stat., 
 733), set forth below, limited the duration 
 of "all temporary promotions and advance- 
 ments authorized by this Act," to "not 
 later than six months after the termination 
 of the present war. " 
 
 [1918, July 1. Allowances of admirals and vice admirals; rank, pay and 
 allowances of chiefs of bureaus and Judge Advocate General.] That hereafter 
 the Chief of Naval Operations shall receive the allowances which are now or 
 may hereafter be prescribed by or in pursuance of law for the grade of general 
 in the Army, and the officers of the Navy holding the rank and title of Admiral 
 and Vice Admiral in the Navy while hokUng such rank and title shall receive 
 the allowances of a General and Lieutenant General of the ^Vi'my, respectively. 
 And hereafter chiefs of bureaus of the Navy Department, including the Judge 
 Advocate General of the Navy, shall, while so serving, have corresponding 
 rank and shall receive the same pay and allowances as are now or may hereafter 
 be prescribed by or in pursuance of law for chiefs of bureaus of the War Depart- 
 ment and the Judge Advocate General of the Army. — (40 Stat., 716-717, chap. 
 114.) 
 
 See note to sections 421 and 1565, Revised Stat- 
 utes, as to chiefs of bureaus; see note to 
 section 1556, Revised Statutes, under "2-3. 
 Admirals; Vice admirals;" see also notes 
 to sections 1362, 1487, 1558, and 1578, Re- 
 vised Statutes. 
 
 Chief of Naval Operations: See acts of March 3, 
 
 1915 (38 Stat., 929), and August 29, 1916 (39 
 
 Stat., 558). 
 Judge Advocate General: See act of June 8, 
 
 1880 (21 Stat., 164), as amended by act of 
 
 Junes, 1896 (29 Stat., 251). 
 Ranks of admiral and ^•ice admiral : See act of 
 
 May 22, 1917, section 18 (40 Stat., 89). 
 
 [1918, July 1. Retired officers, permanent promotion in time of war.] That 
 hereafter, during the existence of war or of a national emergency declared by 
 the President to exist, any commissioned or warrant officer of the Navy, Marine 
 Corps, or Coast Guard of the United States on the retired list may, in the dis- 
 cretion of the Secretary of the Navy, be ordered to active duty at sea or on 
 shore; and any retired officer performing such active duty in time of war or 
 national emergency, declared as aforesaid, shall be entitled to promotion on 
 the retired list to the grade or rank, not above that of lieutenant commander 
 in the Navy or major in the Marine Corps or captain in the Coast Guard, and 
 shall thereafter receive the pay and allowances thereof, which his total active 
 service as an officer both prior and subsequent to retirement, in the manner 
 rendered by liim, would have enabled him to attain in due course of promotion 
 had such service been rendered continuously on the active list during the period 
 of time last past. — (40 Stat., 717, chap. 114.) 
 
 See notes to sections 1591-1592, Re\dsed Statutes. 
 
 [1918, July 1. Retired officers, temporary promotion in time of war.] 
 That during the existence of war or of a national emergency, declared as afore- 
 
 1512 
 
Ft. 3. STATUTES AT LARGE. July 1, 1918. 
 
 said, any commissioned or warrant officer of the Navy, Marine Corps or Coast 
 Guard of the United States on the retired hst, while on active duty, may be tem- 
 porarily advanced to and commissioned in such higher grade or rank on the 
 retired list, not above that of lieutenant commander in the Navy or major in 
 the Marine Corps or captain in the Coast Guard, as the President may determine, 
 and any officer so advanced shall, while on active duty, be entitled to the same 
 pay and allowances as officers of like grade or rank on the active list: Provided, 
 That any such commissioned or warrant officer who has been so temporarily 
 advanced in gi-ade or rank shall, upon his relief from active duty, or in any case 
 not later than six months after the termination of the war or of the national 
 emergency, declared as aforesaid, revert to the grade or rank on the retired 
 list and to the pay and allowance status which he would have held had he not 
 been so temporarily advanced : Provided further, That nothing in this Act shall 
 operate to reduce the pay and allowances now allowed by law to retired offi- 
 cers.— (40 Stat., 717, chap. 114.) 
 
 See notes to sections 1591-1592, Revised Statutes. i,.,^ 
 
 [1918, July 1. Staff Corps, promotion by selection.] The provisions of 
 existing laws with reference to promotion by selection in the line of the Navy 
 are hereby extended to include and authorize advancement to the ranks of 
 commander, captain, and rear admiral in the Staff Corps of the Navy under 
 the same conditions in all respects except as may be necessary to adapt the 
 said provisions to such Staff Corps: Provided, That boards of selection shall 
 in each case be composed, when practicable, of not less than five members 
 of the corps concerned and promotions shall be made on the basis of fitness 
 alone by selection from among the officers of the rank next below: Provided 
 further. That the requirements for sea service in grade, length of service in 
 grade and maximum age in grade for promotion shall not apply. — (40 Stat., 
 718, chap. 114.) 
 
 See act of August 29, 1916 (39 Stat., 578-579), as Navy; and see notes to sections 1458 and 
 
 to promotion by selection in the line of the 1480, Revised Statutes. 
 
 [1918, July 1. Aviation duty; no increased allowances.] That hereafter 
 the allowances of officers, enlisted men, and student flyers of the naval service 
 shall in no case be increased by reason of the performance of aviation duty. — 
 (40 Stat., 718, chap. 114.) 
 
 See acts of March 3, 1915 (38 Stat., 939), and 
 August 29, 1916 (39 Stat., 582-586); and 
 see note to section 1556, Re\'ised Statutes, 
 
 under "38. Additional pay for special 
 duty," and note to section 1569, ReAised 
 Statutes. 
 
 [1918, July 1. Navy mail clerks, shore duty.] That the provisions of the 
 Act of May twenty-seventh, nineteen hundred and eight (Thirty-fifth Statutes, 
 pages fom" hundred and seventeen and four hundred and eighteen), as amended 
 by the Act of August twenty-fourth, nineteen hundred and twelve (Thirty- 
 seventh Statutes, page five hundred and sixty), and as amended by the Act of 
 March fourth, nineteen hundred and seventeen (Thirty-ninth Statutes, page 
 eleven hundred and eighty-eight), are hereby extended to authorize the designa- 
 tion of enlisted men of the Navy or Marine Corps as Navy mail clerks and 
 assistant Navy mail clerks for duty at stations and shore establishments under 
 
 1513 
 
July 1, 1918. Pt. 3. STATUTES AT LARGE. 
 
 m 
 
 the jurisdiction of the Navy Department where the services of such mail clerks 
 and assistant mail clerks are necessary. — (40 Stat., 718, chap. 114.) 
 
 See act of May 27, 1908 (35 Stat., 417), and note thereto. 
 
 [1918, July 1. Quarters, when not available.] That hereafter the Secretary 
 of the Navy may determine where and when there are no public quarters avail- 
 able for persons in the Navy and Marine Corps, or serving therewith, within 
 the meaning of any Acts or parts of Acts relating to the assignment of quarters 
 or commutation therefor. — (40 Stat., 718, chap. 114.) 
 
 See note to sections 236 and 1487, Revised Statutes. 
 
 [1918, July 1. Cash rewards to civilians for suggested improvements.] 
 Tliat tlic Secretary of the Navy is hereby authorized, in his discretion and 
 under such rules and regulations as he may prescribe, to pay cash rewards to 
 civilian employees of the Navy Department or the Naval Establisluiient or 
 other persons in civil life when due to a suggestion or series of suggestions by 
 them there results an improvement or economy in manufacturing process or 
 plant or naval material: Provided, That such sums as may be awarded to 
 employees or other persons in civil life in accordance with this Act shall be 
 paid them out of current naval appropriations in addition to their usual com- 
 pensation: Provided further, That no employee or other person in civil life 
 sliall be paid a reward under this Act mitil he has properly executed an agree- 
 ment to the effect that the use by the United States of the suggestion or series 
 of suggestions made by him shall not form the basis of a further claim of any 
 nature from the United States by him, his heirs, or assigns. — (40 Stat., 718, 
 chap. 114.) 
 
 See sections 1763-1765, Revised Statutes, and references thereunder. 
 
 [1918, July 1. Retired enlisted men, promotion.] That any enlisted man 
 of the Navy or IViarine Corps upon the retired list who has been ordered into 
 active service since April sixth, nineteen hundred and seventeen, or who may 
 hereafter be ordered into active service, shall be eligible for promotion and he 
 shall be entitled to the pay and benefits of continuous service of sucli rank and 
 for such length of time as he is or has been employed in active service, and 
 when relieved of active service shall retain upon the retu-ed list the rank and 
 service held by him at the time of such relief, with the pay and allowances of 
 such rank on the retired list; and the accounting officers of the Treasury are 
 hereby directed to allow in the accounts of any enlisted man of the Navy or 
 Marine Corps who resigned from the retired list in order to reenlist for appoint- 
 ment in a higher grade, the same continuous service pay and the benefits of 
 such rank to which he may have been appointed upon reenlistment, as if his 
 service had been continuous, and any difference in pay from the date of reenlist- 
 ment shall be credited to liis account. — (40 Stat., 719, chap. 114.) 
 
 See notes to sections 1569 and 1622, Revised 
 
 Statutes. 
 By act of July 11, 1919 (41 Stat., 153), it was 
 provided "That so much of the Act of 
 July 1, 1918 (Public Numbered 182), as 
 authorizes the promotion of retired enlisted 
 men of the Navy and Marine Corps ordered 
 to active duty shall not be so construed as 
 to make illegal promotions of such men as 
 
 have heretofore been made to warrant 
 grades or as to deprive them of any of the 
 pay, allowances, or other benefits accruing 
 under such promotion." (It had previ- 
 ously been held that the above act of 
 July 1, 1918, did not authorize the promo- 
 tion of retired enlisted men except to 
 higher enlisted gi-ades on the retired list: 
 see note to sec. 1622, R. S.) 
 
 1514 
 
PL 3. STATUTES AT LARGE. July 8, 1918. 
 
 [1918, July 1. Purchase of vessels for transportation of fuel.] That when, 
 m the opinion of the President, the prices asked for the charter of vessels for 
 the transportation of fuel are excessive, he is authorized to purchase vessels 
 suitable for the purpose, and, if money is not other\^4se available, to pay for 
 them from the appropriation ''Fuel and transportation." — (40 Stat., 730, 
 chap. 114.) 
 
 The above was a proviso following appropria- 
 tions for '"fuel and transportation "' in the 
 naval appropriation act of July 1, 1918; an 
 identical pro\dsion was contained in act 
 
 of June 15, 1917 (40 Stat.,211.) 
 See act of April 28, 1904 (33 Stat., 518), and 
 sections 3711, 3718, and 3728, Revised 
 Statutes. 
 
 [1918, July 1. Termination of temporary promotions.] That all temporary 
 promotions and advancements authorized by tliis Act shall continue in force 
 only until otherwise directed by the President, and not later than six months 
 after the termination of the present war. — (40 Stat., 733, chap. 114.) 
 
 The above paragi-aph in the naval appropria- diately after proAisions for temporary pro- 
 
 tion act of July 1, 1918, followed imme- 
 
 motions in the Coast Guard. 
 
 [1918, July 1. Pay clerks, Marine Corps.] The title of clerks for assistant 
 paymasters is hereby changed to pay clerk, who shall hereafter receive the 
 same pay, allowances, and other benefits now provided by law for clerks for 
 assistant paymasters; and the total number of pay clerks shall not exceed ten 
 for duty in the office of the paymaster, Marine Corps, fifteen for duty in the 
 paymaster's department at large, and one for each assistant paymaster: Pro- 
 vided^ That nothing herein contained shall be construed to reduce the pay, 
 allowances, or other benefits granted by existing law to any clerk for assistant 
 paymaster now in service. — (40 Stat., 735, chap. 114.) 
 
 See notes to sections 1596 and 1612, Re\-ised Statutes. 
 
 [1918, July 1. Advertising for recruits.] That hereafter authorit}^ is hereby 
 granted to employ the services of advertising agencies in advertising for recruits 
 under such terms and conditions as are most advantageous to the Government. — 
 (40 Stat., 736, chap. 114.) 
 
 This was a proAiso in the naval appropriation act of July 1, 1918, following appropriation 
 for "transportation and recniiting, Marine Corps." 
 
 [1918, July 8. Transfer of naval ordnance to War Department.] Such naval 
 ordnance and ordnance material as the Secretary of War and the Secretary of 
 the Navy may determine necessary is authorized to be transferred from the 
 Navy Department to the War Department: Provided, That if such ordnance 
 and ordnance material is obsolete for naval purposes the transfer shaU be made 
 without reimbursement and payment to the Navy for other ordnance and 
 ordnance material transferred hereunder shall be made only after estimates 
 shall have been submitted to Congress and a specific appropriation for such pay- 
 ment shaU have been made. — (40 Stat., 817, chap. 137.) 
 
 See act of July 11, 1919 (41 Stat., 132), and references thereunder. 
 
 [1918, July 8. Unauthorized wearing of uniform or decorations of friendly 
 nations.] That it shall be unla^vful for any person, with intent to deceive or 
 mislead, within the United States or Territories, possessions, waters, or places 
 subject to the jm-isdiction of the United States, to wear any naval, military, 
 police, or other official uniform, decoration, or regalia of any foreign State, 
 
 54641°— 22 96 1515 
 
July 9, 1918. Pi. 3. STATUTES AT LARGE. 
 
 nation, or Government \vith which the United States is at peace, or any uni- 
 form, decoration, or regalia so nearly resembling the same as to be calculated 
 to deceive, unless such wearing thereof be authorized by such State, nation, or 
 Government. 
 
 Any person who violates the provisions of this Act shall upon conviction be 
 punished by a fine not exceeding S300 or imprisonment for not exceeding six 
 months, or by both such fine and imprisonment.^ (40 Stat., 821, chap. 138.) 
 
 8, and acts of Januarv 31, 1881, section 2 
 (21 Stat., 604), and July 9, 1918 (40 Stat., 
 872), as to foreign decorations. 
 
 See act of June 3, 1916, section 125 (39 Stat., 
 216-217), as to unauthorized wearing of 
 uniform of the United States, and see note 
 to Constitution, Article I, section 9, clause 
 
 [1918, July 9. Sale of war supplies.] That the President be, and he hereby 
 is, authorized, through the head of any executive department, to sell, upon 
 such terms as the head of such department shall deem expedient, to any person, 
 partnership, association, corporation, or any other department of the Govern- 
 ment, or to any foreign State or Government, engaged in war against any Gov- 
 ernment with which the United States is at war, any war supplies, material and 
 equipment, and any by-products thereof, and any building, plant or factory, 
 acquired since April sixth, nineteen hundred and seventeen, including the lands 
 upon which the plant or factory may be situated, for the production of such 
 war supplies, materials, and equipment which, during the present emergency, 
 may have or may hereafter be purchased, acquired, or manufactured by the 
 United States: Provided further, That sales of guns and ammunition made 
 under the authority contained in this or any other Act shall be limited to sales 
 to other departments of the Government and to foreign States or Governments 
 engaged in war against any Government with which the United States is at war, 
 and to members of the National Rifle Association and of other recognized asso- 
 ciations organized in the United States for the encom'agement of small-arms 
 target practice: Provided further, That a detailed report shall be made to Con- 
 gress on the first day of each regular session of the sales of any war supplies, 
 materiel, lands, factories, or buildings, and equipment made under the authority 
 contained in this or any other Act, except sales made to any foreign State or 
 Government engaged in war against any Government with wliich the United 
 States is at war, showing the character of the articles sold, to whom sold, the 
 price received therefor, and the purpose for which sold * * * — (49 Stat,, 
 850, chap. 143.) 
 
 purposes of the original appropriation. 
 The said clause was expressly repealed by 
 act of February 25, 1919, section 3 (40 
 Stat., 1173). 
 
 The above provision was followed by a clause 
 authorizing the deposit of proceeds of 
 any such sales to the credit of the appro- 
 priation from which the cost of the prop- 
 erty was paid, and the use thereof for the 
 
 [1918, July 9. Medals and decorations, interchanged between United States 
 and foreign military forces.] That American citizens who have received, since 
 August first, nineteen hundred and fourteen, decorations or medals for dis- 
 tinguished service in the armies or in connection with the field service of those 
 nations engaged in war against the Imperial German Government, shall, on 
 entering the military service of the United States, be permitted to wear such 
 medals or decorations. 
 
 1516 
 
PL 3. STATUTES AT LARGE. Jvdj 9, 1918. 
 
 That any and all members of the military forces of the United States 
 serving in the present war be, and they are hereby, permitted and authorized 
 to accept during the present war or within one year thereafter, from the Gov- 
 ernment of any of the countries engaged in war with any country with which 
 the United States is or shall be concurrently likewise engaged in war, such 
 decorations, when tendered, as are conferred by such Government upon the 
 members of its own military forces; and the consent of Congress required 
 therefor by clause eight of section nine of Article I of the Constitution is hereby 
 expressly granted: Provided, That any officer or enlisted man of the military 
 forces of the United States is hereby authorized to accept and wear any medal 
 or decoration heretofore bestowed by the Government of any of the nations 
 concurrently engaged with the United States in the present war. — (40 Stat., 
 872, chap. i43.) 
 
 That the President is authorized, under regulations to be prescribed by 
 him, to confer such medals and decorations as may be authorized in the mili- 
 tary service of the United States upon officers and enlisted men of the military 
 forces of the countries concurrently engaged with the United States in the 
 present war.— (40 Stat., 872-873, chap. 143.) 
 
 See acts of January 31, 1881, sections 2 and 3 Applicable to the Navy. — The word 
 
 (21 Stat., 604), July 1, 1918 (40 Stat., 821), "military" as used in the above paragraphs 
 
 and February 4, 1919 (40 Stat., 1056); see includes the Navy. (See 31 Op. Atty. Gen., 
 
 also notes to section 1407, Revised Statutes, 445, and file 9644-55, Navy Dept.) 
 and Constitution, article I, section 9, 
 clause 8. 
 
 [1918, July 9. Interdepartmental Social Hygiene Board; protection of naval 
 forces from venereal diseases.] That there is hereby created a board to be 
 known as the Interdepartmental Social Hygiene Board, to consist of the Secre- 
 tary of War, the Secretary of the Navy, and the Secretary of the Treasury as 
 ex officio members, and of the Surgeon General of the Army, the Surgeon 
 General of the Navy, and the Surgeon General of the Public Health Service, 
 or of representatives designated by the Secretary of War, the Secretary of the 
 Navy, and the Secretary of the Treasury, respectively. The duties of the 
 board shall be: (1) To recommend rules and regulations for the expenditure 
 of moneys allotted to the States under section five of this chapter; (2) to select 
 the institutions and organizations and fix the allotments to each institution 
 under said section five; (3) to recommend to the Secretary of the Treasury, 
 the Secretary of War, and the Secretary of the Navy such general measures 
 as will promote correlation and efficiency in carrying out the purposes of this 
 chapter by their respective departments ; and (4) to direct the expenditure of 
 the sum of $100,000 referred to in the last paragraph of section seven of this 
 chapter. The board shall meet at least quarterly, and shall elect annually one 
 of its members as chairman, and shall adopt rules and regulations for the con- 
 duct of its business. 
 
 Sec. 2. That the Secretary of War and the Secretary of the Navy are 
 hereby authorized and directed to adopt measures for the purpose of assisting 
 the various States in caring for civilian persons whose detention, isolation, 
 quarantine, or commitment to institutions may be found necessary for the 
 protection of the military and naval forces of the United States against venereal 
 diseases. * * *.— (40 Stat., 886, chap. 143.) 
 
 1517 
 
July 9, 1918. Pt.S. STATUTES AT LARGE. 
 
 Sec. 5. That there is hereby appropriated, out of any money in the Treas- 
 ury not otherwise appropriated, the sum of $1,000,000, to be expended under 
 the joint direction of the Secretary of War and the Secretary of the Navy to 
 carry out the provisions of section two of this chapter: Provided, That the 
 appropriation herein made shall not be deemed exclusive, but shall be in addi- 
 tion to other appropriations of a more general character which are applicable 
 to the same or similar purposes. * * * 
 
 Sec. 8. That the terms ''State" and "States," as used in this chapter, 
 shall be held to include the District of Columbia.— (40 Stat., 887, chap. 143.) 
 
 [1918, July 9. Condemnation proceedings ; sale of timber lands, logs, etc. ; 
 reuse of proceeds.] That the act entitled "An Act to authorize condemnation 
 proceedings of lands for military purposes," approved July second, nineteen 
 hundred and seventeen, as amended by an act approved April eleventh, nine- 
 teen hundred and eighteen, be, and the same is hereby, amended, and its pro- 
 visions in all respects together with all its privileges and benefits are hereby 
 extended to the right of condemnation of standing or fallen timber, sawmills, 
 camps, machinery, logging roads, rights of way, equipment, materials, supplies, 
 and any works, property, or appliances suitable for the effectual production of 
 such lumber and timber products, for the Army, Navy, United States Shipping 
 Board, or the United States Shipping Board Emergency Fleet Corporation- 
 That the right to institute such condemnation proceedings is hereby conferred 
 upon the Secretary of War, the Secretary of the Navy, and the Chairman of 
 the United States Shipping Board and the United States Shipping Board 
 Emergency Fleet Corporation, individually or collectively. Such right of 
 condemnation shall be exercised by such officials only for the purpose of obtain- 
 ing such property when needed for the production, manufacture, or building 
 aircraft, dry-docks, or vessels, their apparel or furniture, for housing of Govern- 
 ment employees in connection with the Army, Navy, or the United States 
 Shipping Board and the United States Shipping Board Emergency Fleet 
 Corporation, and for the procurement of materials and equipment for aircraft, 
 dry-docks and vessels. The jurisdiction of such condemnation prodeedings is 
 hereby vested in the District Courts of the United States, where the property 
 which is sought to be condemned or any part thereof is located or situated, 
 regardless of the value of the same. 
 
 And the President is hereby authorized through any department or the 
 United States Shipping Board or said Fleet Corporation to sell and dispose of 
 any lands or interests in real estate acquired for the production of lumber and 
 timber products, and to sell any logs, manufactured or partly manufactured or 
 otherwise procured for the Army, Navy, or United States Shipping Board 
 Emergency Fleet Corporation, or resulting from such manufacture or procure- 
 ment, either to individuals, corporations or foreign states or governments, 
 at such price as he shall determine acting through his above representatives 
 selling or disposing of the same, and the proceeds of such sale shall be returned 
 to the appropriations which bore the expense of such procurement. — (40 Stat., 
 888, chap. 143.) 
 
 See act of July 2,1917 (40 Stat. , 241) , as amended 
 and reenacted by act of April 11, 1918 (40 
 Stat., 518-519); see also acts of August 1, 
 
 1888 (25 Stat., 357), and June 3, 1916, sec- 
 tion 124 (39 Stat., 215). 
 
 1518 
 
Pt. 3. STATUTES AT LARGE. July 10, 1918. 
 
 [1918, July 9. Navigation regulations; transportation of explosives; public 
 vessels to enforce.] That in the interest of the national defense, and for the 
 better protection of life and property on said waters, the Secretary of War is 
 hereby authorized and empowered to prescribe such regulations as he may 
 deem best for the use and navigation of any portion or area of the navigable 
 waters of the United States or waters under the jurisdiction of the United 
 States endangered or likely to be endangered by Coast Artillery fire in target 
 practice or otherwise, or by the proving operations of the Government ordnance 
 proving grounds at Sandy Hook, New Jersey, or at any Government ordnance 
 proving ground that maybe established elsewhere on or near such waters, and of 
 any portion or area of said waters occupied by submarine mines, mine fields, 
 submarine cables, or other material and accessories pertaining to seacoast 
 fortifications, or by any plant or facility engaged in the execution of any public 
 project of river and harbor improvement; and the said Secretary shall have 
 like power to regulate the transportation of explosives upon any of said waters : 
 Provided, That the authority hereby conferred shall be so exercised as not 
 unreasonably to interfere with or restrict the food fishing industry, and the 
 regulations prescribed in pursuance hereof shall provide for the use of such 
 waters by food fishermen operating under permits granted by the War Depart- 
 ment.— (40 Stat., 892, chap. 143.) 
 
 Sec. 2. That to enforce the regulations prescribed pursuant to this chapter, 
 the Secretary of War may detail any public vessel in the service of the War 
 Department, or, upon the request of the Secretary of War, the head of any 
 other department may enforce, and the head of any such department is hereby 
 authorized to enforce, such regulations by means of any public vessel of such 
 department. 
 
 Sec. 3. That the regulations made the Secretary of War pursuant to 
 this Chapter shall be posted in conspicuous and appropriate places, designated 
 by him, for the information of the public; and every person who and every 
 corporation which shall wilKully violate any regulations made by the said 
 Secretary pursuant to this Chapter shall be deemed guilt}^ of a misdemeanor, 
 and upon conviction thereof in any court of competent jurisdiction shall be 
 punished by a fine not exceeding $500, or by imprisonment (in the case of a 
 natural person) not exceeding six months, in the discretion of the court. — (40 
 Stat., 893, chap. 143.) 
 
 See sections 4233 and 4412, Revised Statutes, March 4, 1909, sections 217, 232, and 235 
 
 and references thereunder, as to naviga- (35 Stat., 1131, 1134, 1135), as to transporta- 
 
 tion laws; and see Criminal Code, act of tion of explosives. 
 
 [1918, July 10. Atlanta penitentiary ; products used by naval forces.] 
 That the Attorney General of the United States is authorized and directed to 
 establish, equip, maintain, and operate at the United States Penitentiary, 
 Atlanta, Georgia, a factory or factories for the manufacture of cotton fabrics 
 to supply the requirements of the War and Navy Departments, the Shipping 
 Corporation, cotton duck suitable for tents and other army purposes and canvas 
 for mail sacks and for the manufacture of mail sacks and other similar mail- 
 carrying equipment for the use of the United States Government. The factory 
 or factories shall not be so operated as to abolish any existing Government 
 workshop or curtail the production withui its present limits of any such 
 
 1519 
 
Nov. 4, 1918. PL S. STATUTES AT LARGE. 
 
 Government workshop, and the articles so manufactured shall be sold only to 
 the Government of the United States. 
 
 The Attorney General is hereby further authorized and directed to acquire 
 by purchase or condenmation proceedings such tracts of land at such points 
 as he may determine, at a total cost of not to exceed $200,000, which may be 
 cleared, graded, and cultivated. And the Attorney General is authorized to 
 employ the inmates of the institution herein mentioned under such regulations 
 as he may prescribe in the work of clearing, grading, and cultivation of such 
 acquired tracts of land. The products of any such agricultural development, 
 including live stock, shall be utilized in said penitentiary or be sold to the 
 Government of the United States for the use of the military and naval forces 
 of the United States.— (40 Stat., 896, chap. 144.) 
 
 Sec. 2. That articles so manufactured shall be sold at the current market 
 prices as determined by the Attorney General or his authorized agent, and all 
 moneys or reimbursements received from such sales shall be deposited to the 
 credit of the workuig capital fund created by this Act. — (40 Stat., 896-897, 
 chap. 144.) 
 
 [1918, July 18, sec. 2. Standardized screw threads, used by Navy; specifi- 
 cations in proposals.] That it shall be the duty of said commission to ascer- 
 tain and establish standards for screw tlireads, which shall be submitted to 
 the Secretary of War, the Secretary of the Navy, and the Secretary of Commerce 
 for their acceptance and approval. Such standards, when thus accepted and 
 approved, shall be adopted and used in the several manufacturing plants under 
 the control of the War and Navy Departments, and, so far as practicable, in 
 all specifications for screw threads in proposals for manufactured articles, 
 parts, or materials to be used imder the direction of these departments. — ''40 
 *Stat., 913, chap. 156; 40 Stat., 1291, chap. 96.) 
 
 This section was reenacted, without change, by act of March 3, 1919 (40 Stat., 1291). 
 
 [1918, Aug. 31, sec. 5. Wife of soldier or sailor in World War eligible for 
 
 Government position,] That the wiie of a soldier or sailor serving in the 
 
 present war shall not be disqualified for any position or appointment under 
 
 the Government because she is a married woman. — (40 Stat., 956, chap. 166.) 
 
 See note to section 416, Revised Statutes. 
 
 [1918, Oct. 1, sec. 2. Navy medical department to cooperate in suppressing 
 communicable diseases.] That the Secretary of War, the Secretary of the 
 Navy, and the Secretary of the Treasury are authorized and directed, respec- 
 tively, to utilize jointly the personnel and facilities of the Medical Department 
 of the Army, the Medical Department of the Navy, and the Public Health 
 Service, so far as possible, in aiding to combat and suppress the said diseases. — 
 (40 Stat., 1008, chap. 179, Pub. Res. No. 42.) 
 
 The first section of this resolution made an appropriation, available until June 30, 1919, 
 for suppression of " Spanish influenza and other communicable diseases." 
 
 [1918, Nov. 4. Allotments of men missing in action.] For the purpose of the 
 payment of allotments made by the enlisted men or the payment of family allow- 
 ances under Article II of the Act of October 6, 1917, as amended, an enlisted 
 man reported as missing in action shall be considered as occupj/ing a pay 
 status until his actual status has been determined by proper official authority of 
 
 1520 
 
Medals. Pt. 3. STATUTES AT LARGE. Feb. 4, 1919. 
 
 the department in which the man served or is serving : Provided, That payments 
 authorized hereunder shall not continue for more than one year. — (40 Stat., 
 1024, chap. 201.) 
 
 See act of October 6, 1917 (40 Stat., 402-405), and amendments noted thereunder. 
 
 [1919, Jan. 12. Sale of uniforms at cost to naval oflElcers and midshipmen.] 
 That hereafter uniforms, accouterments, and equipment shall, upon the request 
 of any officer of the Navy or any officer of the Marine Corps or any officer of 
 the Coast Guard while operating with the Navy or any midshipman at the 
 Naval Academy or cadets at the Coast Guard Academy, be furnished by the 
 Government at cost, subject to such restrictions and regulations as the Secre- 
 tary of the Navy may prescribe. — (40 Stat., 1054, chap. 8). 
 
 [1919, Feb. 4. Medals of honor, distinguished service medals, and Navy- 
 crosses.] That the President of the United States be, and he is hereby, authorized 
 to present, in the name of Congress, a medal of honor to any person who, while 
 in the naval service of the United States, shall, in action involving actual conflict 
 with the enemy, distinguish himself conspicuously by gallantry and intrepidity 
 at the risk of his life above and beyond the call of duty and without detri- 
 ment to the mission of his command or the command to which attached. 
 
 Sec. 2. That the President be, and he hereby is, further authorized to 
 present, but not in the name of Congress, a distinguished-service medal of 
 appropriate design and a ribbon, together with, a rosette or other device to be 
 worn in lieu thereof, to any person who, while in the naval service of the United 
 States, since the sixth day of April, nineteen hundred and seventeen, has 
 distinguished, or who hereafter shaU distmguish, liimself by exceptionally 
 meritorious service to the Government in a duty of great responsibility. 
 
 Sec. 3. That the President be, and he hereby is, further authorized to 
 present, but not in the name of Congress, a Navy cross of appropriate design 
 and a ribbon, together with a rosette or other device to be worn in lieu thereof, 
 to any person who, while in the naval service of the United States, since the 
 sixth day of April, nineteen hundred and seventeen, has distinguished, or who 
 shall hereafter distinguish, himself by extraordinary heroism or distinguished 
 service in the line of his profession, such heroism or service not being sufficient 
 to justify the award of a medal of honor or a distinguished-service medal. 
 
 Sec. 4. That each enlisted or enrolled person of the naval service to whom 
 is awarded a medal of honor, distinguished-service medal, or a Navy cross shall, 
 for each such award, be entitled to additional pay at the rate of $2 per month 
 from the date of the distinguished act or service on wliich the award is based, 
 and each bar, or other suitable emblem or insignia, in lieu of a medal of honor, 
 distinguished-service medal, or Navy cross, as hereinafter provided for, shall 
 entitle him to further additional pay at the rate of S2 per month from the date 
 of the distinguished act or service for which the bar is awarded, and such 
 additional pay shall continue throughout his active service, whether such 
 service shall or shall not be continuous. 
 
 Sec. 5. That no more than one medal of honor or one distinguished- 
 service medal or one Navy cross shall be issued to any one person ; but for each 
 succeeding deed or service sufficient to justify the award of a medal of honor 
 or a distinguished-service medal or Navy cross, respectively, the President may 
 
 1521 
 
Feb. 4, 1919. PL S. STATUTES AT LARGE. Medals. 
 
 award a suitable bar, or otbor suitable emblem or insignia, to be worn with the 
 decoration nnd tlie correspon(Hn<i; rosette or other device — (40 Stat., 1056, 
 chap. 14.) 
 
 Sec. 6. That the Secretary of the Navy is hereby authorized to expend 
 from the appropriation "Pay of the Navy" of the Navy Department so much 
 as may be necessary to defray the cost of the medals of honor, distinguished- 
 service medals, and Navy crosses, and bars, emblems, or insignia herein pro- 
 vided for, and so much as may be necessary to replace any medals, crosses, 
 bars, emblems, or insignia as are herein or may heretofore have been provided 
 for: Provided, That such replacement shall be made only in those cases where 
 the medal of honor, distinguished-service medal, or Navy cross, or bar, emblem, 
 or insignia presented under the provisions of this or any other Act shall have 
 been lost, destroyed, or rendered unfit for use without fault or neglect on the 
 part of the person to whom it was awarded, and shall be made without charge 
 therefor.— (40 Stat., 1056-1057, chap. 14.) 
 
 Sec. 7. That, except as othei-wise prescribed herein, no medal of honor, 
 distinguished-service medal. Navy cross, or bar or other suitable emblem or 
 insignia in lieu of either of said medals or of said cross, shall be issued to any 
 person after more than five years from the date of the act or service justifying 
 the award thereof, nor unless a specific statement or report distinctl}^ setting 
 forth the act or distinguished service and suggesting or recommending official 
 recognition thereof shall have been made by his naval superior through official 
 channels at the time of the act or service or within three years thereafter. 
 
 Sec. 8. That in case an individual who shall distinguish himself dies 
 before the making of the award to which he may be entitled the award may 
 nevertheless be made and the medal or cross or the bar or other emblem or 
 insignia presented within five years from the date of the act or service justifying 
 the award thereof to such representative of the deceased as the President may 
 designate: Provided, That no medal or cross or no bar or other emblem or 
 insignia shall be awarded or presented to any individual or to the representative 
 of any individual whose entire service subsequent to the time he distinguished 
 himself shall not have been honorable : Provided further. That in cases of persons 
 now in the naval service for whom the award of the medal of honor has been 
 recommended in full com.pliance with then existing regulations, but on account 
 of services which, though insufficient fully to justify the award of the medal 
 of honor, appears to have been such as to justify the award of the dis- 
 tinguished-service medal or Navy cross hereinbefore provided for, such cases 
 may be considered and acted upon under the provisions of this Act authorizing 
 the award of the distinguished-service medal and Navy cross notwithstanding 
 that said services may have been rendered more than five years before said 
 cases shall have been considered as authorized by this proviso, but all con- 
 sideration or any action upon any of said cases shall be based exclusively 
 upon official records now on file in the Navy Department. 
 
 Sec. 9. That the President be, and he hereby is, authorized to delegate, 
 under such conditions, regulations, and limitations as he shall prescribe, to 
 flag officers who are commanders in chief or commanding on important inde- 
 pendent duty the power conferred upon him by this Act to award the Navy 
 cross; and he is further authorized to make from time to time any and all 
 
 1522 
 
Pt. .3. STATUTES AT LARGE. Feb. 24, 1919. 
 
 rules, regulations, and orders which he shall deem necessary to carry into effect 
 the provisions of this Act and to execute the full purpose and intention thereof. — 
 (40 Stat., 1057, chap. 14.) 
 
 See note to section 1407, Revised Statutes, 
 joint resolution of May 4, 1898 (30 Stat., 
 741), and acts of March 3, 1915 (38 Stat., 
 931), April 27, 1916 (39 Stat., 53), and July 
 9, 1918 (40 Stat., 872). 
 
 The words "naval superior" in section 7 
 of this act include the Secretary of the Na^'y, 
 and are not limited to officers of the Navy in 
 immediate command of a naval force in which 
 the special act or 8er^ice deser\'ing recognition 
 occurs. (File 9644-350, Jan. 22, 1920.) 
 
 [1919, Feb. 24. United States bonds accepted in lieu of sureties.] That 
 wherever by the laws of the United States or regulations made pursuant thereto, 
 any person is required to furnish any recognizance, stipulation, bond, guaranty, 
 or undertaking, hereinafter called "'penal bond," with surety or sureties, such 
 person may, in lieu of such surety or sureties, deposit as security with the 
 official having authority to approve such penal bond, United States Liberty 
 bonds or other bonds of the United States in a sum equal at their par value 
 to the amount of such penal bond required to be furnished, together with an 
 agreement authorizing such official to collect or sell such bonds so deposited 
 in case of any default in the performance of any of the conditions or stipulations 
 of such penal bond. The acceptance of such United States bonds in lieu of 
 surety or sureties required by law shall have the same force and eft'ect as indi- 
 vidual or corporate sureties, or certified checks, bank drafts, post-office money 
 orders, or cash, for the penalty or amount of such penal bond. The bonds 
 deposited hereunder, and such other United States bonds as may be substituted 
 therefor from time to time as such security, may be deposited with the Treasurer, 
 or an Assistant Treasurer of the United States, a Government depository. 
 Federal Reserve bank, or member bank, which shall issue receipt therefor, 
 describing such bonds so deposited. As soon as security for the performamce 
 of such penal bond is no longer necessary, such bonds so deposited, shall be 
 returned to the depositor: Provided, That in case a person or persons supplying 
 a contractor with labor or material as provided by the Act of Congress, approved 
 February 24, 1905 (33 Stat., 811), entitled '"An Act to amend an Act approved 
 August thirteenth, eighteen hundred and ninety-four, entitled 'An Act for the 
 protection of persons furnishing materials and labor for the construction of 
 public works,' " shall file with the obligee, at any time after a default in the 
 performance of any contract subject to said Acts, the application and affidavit 
 therein provided, the obligee shall not deliver to the obligor the deposited 
 bonds nor any surplus proceeds thereof until the expiration of the time limited 
 by said Acts for the institution of suit by such person or persons, and, in case 
 suit shall be instituted within such time, shall hold said bonds or proceeds 
 subject to the order of the court having jurisdiction thereof: Provided further, 
 That nothing herein contained shall affect or impair the priority of the claim 
 of the United States against the bonds deposited or any right or remedy granted 
 by said acts or by this section to the United States for default upon any obliga- 
 tion of said penal bond: Provided further, That all laws inconsistent with this 
 section are hereby so modified as to conform to the provisions hereof: And 
 provided further, That nothing contained herein shall affect the authority of 
 courts over the security, where such bonds are taken as security in judicial 
 proceedings, or the authority of any administrative officer of the United States 
 
 1523 
 
Mar. 1, 1919. Pi. 3. STATUTES AT LARGE. 
 
 to receive United States bonds for security in cases authorized by existing laws. 
 The Secretary may prescribe rules and regulations necessary and proper for 
 carrying this section into efi'ect. — (40 Stat., 1148-1149, chap. 18.) 
 
 See sections 1:^83-1385, Revised Statutes, and 1906 (34 Stat., 841), and section 3719, 
 
 notes thereto; see also act of August 13, Revised Statutes. 
 
 1894 (28 Stat., 278), as amended and re- The word '"Secretary" as iised in this act is 
 
 enacted by act of February 24, 1905 (33 defined by section one thereof (40 Stat., 
 
 Stat., 811-812) ; and see act of December 11, 1058) to mean the Secretary of the Treasury. 
 
 [1919, Feb. 25. Reinstatement of employees honorably discharged from mili- 
 tary service.] That all former Government employees who have been drafted 
 or enlisted in the military service of the United States in the war with Germany 
 shall be reinstated on application to their former positions, if they have re- 
 ceived an honorable discharge and are qualified to perform the duties of the 
 position.— (40 Stat., 11G4, chap. 39.) 
 See note to section 416, Re\'ised Statutes. 
 
 [1919, Feb. 28. Uniforms retained on discharge.] That any person who 
 served in the United States Army, Navy, r>r Marine Corps in the present war 
 may, upon honorable discharge and return to civil life, permanently retain one 
 complete suit of outer uniform clothing, including the overcoat, and such 
 articles of personal apparel and equipment as may be authorized, respectively, 
 by the Secretary of War or the Secretary of the Navy, and may wear such 
 uniform clothing after such discharge : Provided, That the uniform above referred 
 to shall include some distinctive mark or insignia to be prescribed, respectively, 
 by the Secretary of War or the Secretary of the Navy, such mark or insignia 
 to be issued, respectively, by the War Department or Navy Department 
 to all enlisted personnel so discharged. The word "Navy" shall include the 
 officers and enlisted personnel of the Coast Guard who have served with the 
 Navy during the present war.— (40 Stat., 1202-1203, chap. 70.) 
 
 Sec. 2. That the provisions of this Act shall apply to all persons who served 
 in the United States Army, Navy, or IMarine Corps during the present war 
 honorably discharged since April sixth, nineteen hundred and seventeen. And 
 in cases where such clothing and uniforms have been restored to the Govern- 
 ment on their discharge the same or similar clothing and uniform in kind and 
 value as near as may be shall be returned and given to such soldiers, sailors, 
 and marines.— (40 Stat., 1203, chap. 70.) 
 
 provision for furnishing mileage and trans- 
 portation to enlisted men of the Navy and 
 Marine Corps on discharge, and to naval 
 reservists on release from active service; 
 see the act and section last cited. 
 
 See act of June 3, 1916, section 125 (39 Stat., 
 
 216-217), and note thereto. 
 Travel allowance on discharge : Section 3 of this 
 
 act (40 Stat., 1203), reenacted section 126 
 
 of the act approved June 3, 1916 (39 Stat., 
 
 217), and embodied in such reenactment 
 
 [1919, Mar. 1, sec. 10. Public Buildings Commission ; control of oflace space in 
 District of Columbia.] Public Buildings Commission: With a view to the 
 control and allotment of space in owned or leased Government buildings in the 
 District of Columbia, a Public Buildings Commission is hereby created to be 
 composed of two Senators to be appointed by the President of the Senate and 
 two Members of the House of Representatives to be appointed by the Speaker, 
 who shall serve thereon only so long as they are Members of Congress, and the 
 vSuperintendent of the Capitol Building and Grounds, the officer in charge of 
 
 1524 
 
Pt. 3. STATUTES AT LARGE. Mar. 3, 1919. 
 
 public buildings and grounds, and the Supervising Architect or the Acting Super- 
 vising Architect of the Treasury during any vacancy in said office. Said com- 
 mission shall elect one of its members as chairman of the commission and is 
 authorized to employ such expert clerical or other services as it may deem 
 necessary. 
 
 Any vacancies m said commission shall be filled in the same manner as 
 the original appointments were made. — (40 Stat., 1269, chap. 86.) 
 
 Said commission shall have the absolute control of and the allotment of all 
 space in the several public buildings owTied or buildings leased by the United 
 States in the District of Columbia, with the exception of the Executive Mansion 
 and office of the President, Capitol Building, the Senate and House Office 
 Buildings, the Capitol powder plant, the buildings under the jurisdiction of the 
 Regents of the Smithsonian Institution, and the Congressional Library Build- 
 ing, and shall from time to time assign and allot, for the use of the several 
 activities of the Government, all such space. — (40 Stat., 1270, chap. 86.) 
 
 See note to section 415, Revised Statutes. 
 
 [1919, Mar. 1, sec. 11. Delay and waste in public printing ; restriction on 
 periodicals; work to be done at Government Printing Oflolce.] That the Joint 
 Committee on Printing shall have power to adopt and employ such measures as, 
 in its discretion, may be deemed necessary to remedy any neglect, delay, 
 duplication, or waste in the public printing and binding and the distribution of 
 Government publications: Provided, That hereafter no journal, magazine, 
 periodical, or other similar publication, shall be printed and issued by any 
 branch or officer of the Government service unless the same shall have been 
 specifically authorized by Congress * * *. That on and after July 1, 1919, 
 all printing, binding, and blank-book work for Congress, the Executive Office, 
 the judiciary, and every executive department, independent office, and estab- 
 hshment of the Government, shall be done at the Government Printing Office, 
 except such classes of work as shall be deemed by the Joint Committee on Print- 
 ing to be urgent or necessary to have done elsewhere than in the District of 
 Columbia for the exclusive use of any fi.eld service outside of said District. — 
 (40 Stat., 1270, chap. 86.) 
 
 See act of January 12, 1895 (28 Stat., 601-624), and particularly sections 80 and 87 (28 Stat., 
 621, 622). 
 
 [1919, Mar. 3. Census of Guam and Samoa, etc.] That a census of the popu- 
 lation, agriculture, manufactures, forestry and forest products, and mines and 
 quarries of the United States shall be taken by the Director of the Census in 
 the year nineteen hundred and twenty and every ten years thereafter. The 
 census herein provided for shall include each State, the District of Columbia, 
 Alaska, Hawaii, and Porto Rico. A census of Guam and Samoa shall be taken 
 in the same year by the respective governors of said islands and a census of the 
 Panama Canal Zone by the governor of the Canal Zone in accordance with plans 
 prescribed or approved by the Director of the Census. — (40 Stat., 1291-1292, 
 chap. 97.) 
 
 See note to act of June 28, 1906 (34 Stat., 552) as to status of Samoa and naval governor 
 thereof. 
 
 1525 
 
July 11, 1919. PL S. STATUTES AT LARGE. 
 
 [1919, Mar. 3, sec. 6. Preference to discharged soldiers and sailors in Gov- 
 ernment employment.] * * * That hereafter in making appointments to 
 clerical and other positions in the Executive branch of the Government in the 
 District of Colmnbia or elsewliere preference shall be given to honorably dis- 
 charged soldiers, sailors, and marines, and widows of such and to the wives of 
 injured soldiers, sailors and marines who themselves are not qualified, but whose 
 \vives are qualified to hold such positions. — (40 Stat., 1293, chap. 97; 41 Stat., 
 37, chap. 6.) 
 
 This section was expressly amended and reen- See note to section 416, Revised Statutes, 
 acted to read as above by act of July 11, 
 1919 (41 Stat., 37). 
 
 [1919, Mar. 3, sec. 7. Transfer of employees to Census Office; reinstatement.] 
 
 * * * That employees in other branches of the departmental classified 
 service who have had previous experience in census work may be transferred 
 without examination to the Census Oflice to serve during the whole or a part 
 of the decennial census period, and at the end of such service the employees 
 so transferred shall be eligible to appointment to positions in any department 
 held by them at date of transfer to the Census Office without examination, but 
 no employee so transferred shall within one year after such transfer receive 
 liigher salary than he is receiving at the time of the transfer * * *. — -(40 
 Stat., 1294, chap. 97.) 
 
 [1919, Mar. 3, sec. 3. Transfer of lands, etc., to the Public Health Service.] 
 
 * * * "Yhe President is authorized to direct the transfer to the Treasury 
 Department of the use of such lands or parts of lands, buildings, fixtures, appli- 
 ances, furnishings, or furniture under the control of any other department of the 
 Government not required for the purposes of such department and suitable for 
 the uses of the Pubhc Health Service.— (40 Stat., 1303, chap. 98.) 
 
 See section 418, Revised Statutes, and note thereto; and see act of March 4, 1921 (41 Stat., 
 1365). 
 
 [1919, July 11, sec. 6. Interchange of supplies between departments.] Tliat 
 the heads of the several executive departments and other responsible officials, 
 in expending appropriations contained in this or any other Act, so far as possible 
 shall purchase material, supplies, and equipment, when needed and funds are 
 available, from other services of the Government possessing material, supplies, 
 and ecjuipment no longer required because of the cessation of war activities. 
 It shall be the duty of the heads of the several executive departments and other 
 officials, before purchasing any of the articles described herein, to ascertain from 
 the other services of the Government whether they have articles of the character 
 described that are serviceable. And articles purchased by one service from 
 another, if the same have not been used, shall be paid for at a reasonable price 
 not to exceed actual cost, and if the same have been used, at a reasonable price 
 based upon length of usage. The various services of the Government are au- 
 thorized to sell such articles under the conditions specified, and the proceeds of 
 such sales shall be covered into the Treasury as a miscellaneous receipt: Pro- 
 vided, That this section shall not be construed to amend, alter, or repeal the 
 Executive order of December 3, 1918, concerning the transfer of office material, 
 supplies, and ecjuipment in the District of Columbia falling into disuse because 
 of the cessation of war activities. — (41 Stat., 67-68, chap. 6.) 
 
 See acts of Julv 11. 1919 (41 Stat., 132, chap. 9), May 21, 1920, section 7 (41 Stat., 613), 
 and July li, 1919 (41 Stat., 130). 
 
 1526 
 
Ft. 3. STATUTES AT LARGE. July 11, 1919. 
 
 [1919, July 11, sec. 6. Influencing legislation.] That hereafter no part of 
 the money appropriated by this or any other Act shall, in the absence of express 
 authorization by Congress, be used directl}' or indirectly to pay for any 
 personal service, advertisement, telegi'am, telephone, letter, printed or written 
 matter, or other device, intended or designed to influence in any manner a 
 Member of Congress to favor or oppose, by vote or otherwise, any legislation 
 or appropriation by Congress, whether before or after the introduction of any 
 bill or resolution proposing such legislation or appropriation; but this shall not 
 prevent officers and employees of the United States from communicating to 
 Members of Congress on the request of any Member or to Congress, through 
 the proper official channels, requests for legislation or appropriations which 
 they deem necessary for the efficient conduct of the public business. 
 
 Any officer or employee of the United States who, after notice and hearing 
 by the superior officer vested with the power of removing him, is found to have 
 violated or attempted to violate this section, shall be removed by such superior 
 officer from office or employment. Any officer or employee of the United 
 States who violates or attempts to violate this section shall also be guilty of a 
 misdemeanor and on conviction thereof shall be punished by a fine of not more 
 than $500 or by imprisonment for not more than one year, or both.— (41 Stat., 
 68, chap. 6.) 
 
 See note to Constitution. Article I, section 1; and see act of August 24, 1912, section 6 
 (37 Stat., 555); see also article 95, Navy Regulations, 1920. 
 
 [1919, July 11, Transfer of Army ammunition to other departments.] That 
 the Secretary of War be, and he is hereby, authorized to turn over on request 
 from other executive departments of the Government, in his discretion, from 
 time to time, without charge therefor, such ammunition, explosives, and other 
 ammunition components as may prove to be or shall become surplus or unsuit- 
 able for the purposes of the War Department and as shall be suitable for use in 
 the proper activities of other executive departments. — (41 Stat., 130, chap. 8.) 
 
 See acts of July 11, 1919, section 5 (41 Stat., 67-68, chap. 6); July 11, 1919 (41 Stat., 132, 
 chap. 9); and May 21, 1920, section 7 (41 Stat., 613). 
 
 [1919, July 11. Claims for damage to private property.] That the Secretary 
 of the Navy is authorized to consider, ascertain, adjust, determine, and pay the 
 amounts due in all claims for damages (other than such as are occasioned by 
 vessels of the Navy), to and loss of privately owned property, occurring subse- 
 quent to April G, 1917, where the amount of the claim does not exceed -1500, for 
 which damage or loss men in the naval service or Marine Corps are found to be 
 responsible, all payments in settlement of said claims to be made out of the 
 appropriation "Pay, miscellaneous": Provided further, That all chiims ad- 
 justed under this authority during any fiscal year shall be reported in detail to 
 the Congress by the Secretary of the Navy. — (41 Stat., 132, chap. 9.) 
 
 See act of June 24, 1910 (36 Stat., 607), and note thereto. 
 
 [1919, July 11. Navy disbursing officers relieved from losses, etc.] The 
 accounting officers of the Treasury shall relieve any disl)ursing officer of the 
 Navy charged with responsibility on account of loss or deficiency while in the 
 
 1527 
 
July 11, 1919. PL S. STATUTES AT LARGE. 
 
 line of his duty, of Government funds, vouchers, records, or papers, in his 
 charge, where such loss or deficiency occurred without fault or negligence on 
 the part of said officer: Provided, That the Secretary of the Navy shall have 
 determined that the officer was in the line of his duty, and the loss or deficiency 
 occurred without fault or negligence on his part: Provided further, That the 
 determination by the Secretary of the Navy of the aforesaid questions shall be 
 conclusive upon the accounting officers of the Treasury: Provided further, 
 That all cases of relief granted under this authority during any fiscal year shall 
 be reported in detail to the Congress by the Secretary of the Nav3^ — (41 Stat., 
 132, chap. 9.) 
 
 See Judicial Code, act of March 3, 1911, section 
 
 14.5(36 Stat.. 11 ;?6-1137). 
 A pro\"ision for relief of disbursing officers from 
 
 responsibility for illegal pajonents made 
 
 during "the period of the present emer- 
 gency," was contained in this act (41 Stat., 
 153), but is omitted as temporary. 
 
 [1919, July 11. Interchange of supplies between Army and Navy.] The in- 
 terchange without compensation therefor, of military stores, supplies, and 
 equipment of every character, including real estate o%\Tied by the Government, 
 is hereby authorized between the Army and the Navy upon the request of the 
 head of one service and with the approval of the head of the other service. — 
 (41 Stat., 132, chap. 9.) 
 
 See acts of August 24, 1912 (37 Stat., 589), March 
 4, 1915 (38 Stat., 1084), July 8, 1918 (40 
 Stat., 817), July 9, 1918 (40 Stat., 850), July 
 11, 1919, section 5 (41 Stat., 67-68, chap. 
 6), July 11, 1919 (41 Stat., 130, chap. 8), 
 
 [1919, July 11. Authorized enlisted strength, Navy, increased during na- 
 tional emergency.] The President is hereby authorized, whenever in his judg- 
 ment a sufficient national emergency exists, to increase the authorized enlisted 
 strength of the Navy to 191,000 men.— (41 Stat., 137-138, chap. 9.) 
 
 July 19, 1919, section 5 (41 Stat., 233), and 
 May 21, 1920, section 7 (41 Stat., 613). See 
 also act of March 4, 1911 (36 Stat., 1279), 
 and references thereunder. 
 
 The omitted portions of the act (41 Stat., 137) 
 temporarily increased the "total author- 
 ized enlisted strength of the active list of 
 the Navy" during the current fiscal year. 
 
 See note to section 1417, Revised Statutes, as to 
 the authorized enlisted strength of the 
 Navy under various laws; and see particu- 
 larly act of July 1, 1918 (40 Stat., 714\ 
 which established the permanent author- 
 ized enlisted strength of the Navy. 
 
 [1919, July 11. Permanent commissioned and enlisted strength not affected.] 
 That nothing herein shall be construed as affecting the permanent, commis- 
 sioned, or enlisted strength of the Regular Navy as authorized by existing 
 law.— (41 Stat., 138, chap. 9.) 
 
 The permanent commissioned strength of the 
 Navv was established by act of August 29, 
 1916' (39 Stat., 576-577). The permanent 
 enlisted strength was established by act of 
 July 1, 1918 (40 Stat., 714); see note to sec- year, 
 
 tion 1417, Revised Statutes. 
 
 [1919, July 11. Naval Reserve Force, active duty restricted.] Members of 
 the Naval Reserve Force shall not hereafter be ordered to perform active duty 
 on shore of a kind which is ordinarily performed by civilians, and all reservists 
 now performing such duty shall be relieved from such duty witliin thirty days 
 after the date of approval of this Act. — (41 Stat., 138, chap. 9.) 
 
 See act of August 29, 1916 (39 Stat., 587-593), and notes thereto, relating to the Naval Reserve 
 Force. 
 
 1528 
 
 Omitted portions of this act (41 Stat., 137-138\ 
 contained temporary provisions dealing 
 with the commissioned and enlisted 
 strength of the Navy for the current fiscal 
 
Pt. 3. STATUTES AT LARGE. July 11, 1919. 
 
 [1919, July 11. Commissioned officers, computations as to numbers, and 
 convening of selection boards.] The provision of existing law which requires the 
 Secretary of the Navy to make computations semiannually as of July 1 and 
 January 1 of each year and to convene the boards to select ofRcers of the line 
 and of the staff corps for promotion is hereby amended so that said computa- 
 tions shall be made and said boards shall be convened at least once each year 
 and at such times as the Secretary of the Navy may direct, and the boards shall 
 recommend for promotion such number of officers as may be necessary to fill 
 vacancies then existing and which may occur during the next period of time. — 
 (41 Stat., 139, chap. 9.) 
 
 See act of August 29, 1916 (39 Stat., 577, 578), and notes thereto, as to computations and 
 convening of selection board. 
 
 [1919, July 11. Pay of Navy not reduced.] That nothing contained in this 
 
 Act shall be construed to reduce the pay or allowances of any commissioned, 
 
 warrant, or appointed officer or any enlisted man as authorized by law for 
 
 such officer or enlisted man in his present permanent status in the Regular 
 
 Navy.— (41 Stat., 139, chap. 9.) 
 
 See notes to sections 1556 and 1569, Revised Statutes, as to pay of officers and enlisted men 
 of the Navy. 
 
 [1919, July 11. Pay of warrant officers. Navy, for foreign shore duty.] War- 
 rant officers of the Navy on shore duty beyond the continental limits of the 
 United States shall, while so serving and from the time of departm-e from and 
 until the time of return to said limits under orders to or from such foreign-shore 
 duty, receive the same pay as is now or may be authorized by law for warrant 
 officers on sea duty: Provided, That this paragraph shall be effective from 
 April 6, 1917.— (41 Stat., 140, chap. 9.) 
 
 See note to section 1556, Revised Statutes, as to pay of warrant officers. 
 
 [1919, July 11. Enlisted men and warrant officers credited with reserve 
 service; membership of reservists in Naval Militia.] Any enlisted man of the 
 Navy or IVlarine Corps who has been or may be discharged to enable him to 
 accept appointment as a commissioned or warrant officer in the Naval Reserve 
 Force or IVIarine Corps Reserve, and who reenlists in the Navy or IMarine Corps 
 after the termination of his reserve service, shall be entitled, in computing 
 service for retirement, to credit for all active reserve service ; and if he reenlists 
 in the Navy or IVIarine Corps within four or three months, respectively, from 
 the date of the termination of his service as an officer of the Reserve he shall be 
 restored to the grade or rank held by him before being discharged to accept 
 such commission or warrant, and his service in the Regular Navy or IMarine 
 Corps, including his active service in the Naval Reserve Force or IMarine Corps 
 Reserve, shall be regarded as continuous for pm^poses of continuous-service 
 pay: Provided, That any warrant officer in the Navy or IVIarine Corps and any 
 pay clerk in the IMarine Corps who has accepted or who may hereafter accept 
 appointment as a commissioned officer in the Naval Reserve Force or IMarine 
 Corps Reserve shall be entitled, upon the termination of his appointment as a 
 commissioned officer in the Reserve, to revert to his former status as a warrant 
 officer in the Navy or Marine Corps, or as a pay clerk in the Marine Corps, and 
 shall be entitled to count all active reserve service for purposes of longevity 
 pay and retirement: Provided, That no part or parts of any existing laws 
 
 1529 
 
July 11, 1919. PL S. STATUTES AT LARGE. 
 
 shall be construed as having discharged from the Naval Militia of any State, 
 Territory, or the District of Columbia, those members of the National Naval 
 Volunteers who were transferred to the Naval Reserve Force by authority of 
 the Act of Congress making appropriations for the Naval Service which became 
 a law on July 1, 1918; nor to prevent members of the Naval Reserve Force from 
 being or becoming membei-s of the Naval Militia of any State, Territory, or the 
 District of Columbia: Provided, That such membership in the Naval Militia 
 shall not interfere with the discharge of duties bv such members thereof who 
 are in the Naval Reserve Force. — (41 Stat., 141, chap. 9.) 
 
 See notes to sections 1556, 1569, 1573, and 1612, 
 Revised Statutes, as to pay of warrant offi- 
 cers and enlisted men of the Navy and 
 Marine Corps. See sections 1443, Revised 
 Statutes, and references thereunder, as to 
 retirement of warrant officers in the Navy; 
 see section 1622, Revised Statutes, and 
 
 note thereto, as to retirement of officers and 
 enlisted men of the Marine Corps; see act 
 of March 3, 1899, section 17 (30 Stat., 1008), 
 and references thereunder as to retirement 
 of enlisted men of the Navy; and see act 
 of August 29, 1916 (39 Stat., 611), as to 
 warrant officers in the Marine Corps. 
 
 [1919, July 11. Reinstatement of employees who served in war with Ger- 
 many.] That all former Government employees who have entered the military 
 or naval service of the United States in the war with the German Government 
 shall be reinstated on application to their former positions if they have received 
 an honorable discharge and are qualified to perform the duties of the position. — 
 (41 Stat., 142, chap. 9.) 
 
 See note to section 416, Revised Statutes. 
 
 [1919, July 11. Appropriations for maintenance of training stations.] The 
 appropriations "Maintenance, Bm-eau of Yards and Docks," and ''Repairs 
 and Preservation" shall be available for the maintenance of naval trainins: 
 stations where the regular appropriations for the maintenance thereof are found 
 to be insufficient. — (41 Stat., 145, chap. 9.) 
 
 [1919, July 11. Supply Corps.] That hereafter the Pay Corps shall be called 
 the Supply Corps. — (41 Stat., 147, chap. 9.) 
 
 [1919, July 11. Fuel for Navy in District of Columbia.] Hereafter the pro- 
 visions of the Sundry Civil Act, approved July 1, 1918, providing for the 
 establishment of a Government fuel yard in the District of Columbia, shall 
 not apply to the fuel required for the Naval Establishment, except the naval 
 hospital, in the District of Columbia. — (41 Stat., 148, chap. 9.) 
 
 See acts of July 1, 1918 (40 Stat., 672-673), and June 5, 1920 (41 Stat., 913). 
 
 [1919, July 11. Naval Academy Band.] The Naval Academy Band shall 
 hereafter consist of one leader, with pay and allowances of first lieutenant in 
 the Marine Corps; one second leader, with a base pay of $81 per month; forty- 
 five musicians, first class, with a base pay of $51 per month; twenty-seven 
 musicians, second class, with a base pay of $44 per month; one drum major, 
 with a base pay of $57.20 per month; and the said leader of the band, second 
 leader of the band, drum major of the band, and the enlisted musicians of the 
 band shall be entitled to the same benefits in respect to pay, emoluments, 
 and retirement arising from longevity, reenlistment, and length of service 
 as are or may hereafter become applicable to other officers or enlisted men of 
 the Navy.— (41 Stat., 152, chap. 9.) 
 See act of April 12, 1910 (36 Stat., 297), and tion 1569 Revised Statutes, as to temporary 
 
 references thereunder; and see note to sec 
 
 increases in pay of enlisted men. 
 
 1530 
 
and the Marine Corps Reserv^e shall, as soon 
 as practicable and in no event later than 
 thirty days after the date of approval of 
 this Act, be placed on inactive duty." 
 See also act of June 4, 1920, section 2 (41 
 Stat., 834), forbidding enrollments in the 
 Naval Reserve Force except for general 
 service. 
 
 Ft. S. STATUTES AT LARGE. July 19, 1919. 
 
 [1919, July 11. Women enlisted in naval service.] That the words "enlisted 
 men," as contained in prior appropriation Acts, shall not be construed to 
 deprive women, enlisted or enrolled in the naval service, of the pay, allowances, 
 gratuities, and other benefits granted by law to the enlisted personnel of the 
 Navy and Marine Corps. — (41 Stat., 152, chap. 9.) 
 
 See section 1, Revised Statutes, as to "words 
 imparting the masculine gender '' being ap- 
 plied to females; and see act of October 6, 
 1917, section 22 (40 Stat., 401-402), under 
 "Definitions." 
 
 By a temporary proWsion in this act (41 Stat., 
 138\ it was required that ''female members, 
 except nurses, of the Naval Reserve Force 
 
 [1919, July 11. Rations, Marine Corps.] That hereafter, except when de- 
 tached by the President of the United States for duty with the Army, enlisted 
 men of the Marine Corps shall be entitled to the same allowance for rations 
 as are enlisted men of the Navy, under such rules and regulations as may be 
 prescribed by the Secretary of the Navy. — (41 Stat., 154, chap. 9.) 
 
 See notes to sections 1615 and 1621, Re%'ised Statutes. 
 
 [1919, July 11. Sale of uniforms to marine officers.] That hereafter this 
 appropriation shall be available for the purchase of uniforms, accouterments, 
 and equipment for sale at cost price to officers under such regulations as the 
 Secretary of the Navy may prescribe. — (41 Stat., 154, chap. 9.) 
 
 This was a pro\T.so following appropriations i under ' ' Laws relating specifically to Marine 
 
 under the title, "Clothing, Marine Corps." , Corps," subheading, "Sale of subsistence 
 
 See note to section 1612, Re\'ised Statutes, ' stores, etc." 
 
 [1919, July 11. Receipts of post laundries, Marine Corps.] That hereafter 
 the funds received in payment for laundry work performed by post laundries 
 shall be used to defray the cost of operation of said laundries and the receipts 
 and expenditures shall be accounted for in accordance with the methods pre- 
 scribed by law and any sums remaining at the end of the fiscal year after such 
 cost of maintenance and operation have been defrayed shall be deposited in 
 the Treasury to the credit of the appropriation from which the cost of operation 
 of such plants is paid. — (41 Stat., 155-156, chap. 9.) 
 This was a pro\'iso following appropriations for See section 3689, Revised Statutes, and note 
 
 'Contingent, Marine Corps." 
 
 thereto. 
 
 [1919, July 19, sec. 3. Transfer of printing equipment to Public Printer.] 
 * * * That any officer of the Government having machinery, material, 
 equipment or supplies for printing, binding, and blank book work, including 
 Uthography, photolithography, and other processes of reproduction, which are 
 no longer rec{uired or authorized for his service, shall submit a detailed report 
 of the same to the Public Printer, and the Public Printer is hereby authorized, 
 with the approval of the Joint Committee on Printing, to requisition such arti- 
 cles of the character herein described as are serviceable in the Government 
 Printing Office, and the same shall be promptly dehvered to that office. — (41 
 Stat., 233, chap. 24.) 
 
 This was a proviso following temporary pro- 
 visions relating to sales of supplies by exec- 
 
 utive departments during the current fiscal 
 year, and disposition of the proceeds thereof. 
 
 [1919, July 19, sec. 5. Transfer of Army motor vehicles to other departments.] 
 The Secretary of War is authorized to transfer any unused and surplus motor- 
 
 54641°— 22 97 1531 
 
Feb. 25, 1920. Ft. 3. STATUTES AT LARGE. 
 
 propelled vehicles and motor equipment of any kind, the payment for same to 
 be made as provided herein, to any branch of the Government service having 
 appropriations available for the purchase of said vehicles and equipment: 
 Provided, That in case of the transfers herein authorized a reasonable price not 
 to exceed actual cost, and if the same have been used, at a reasonable price 
 based upon length of usage, shall be determined upon and an equivalent amount 
 of each appropriation available for said purchase shall be covered into the 
 Treasury as a miscellaneous receipt, and the appropriation in each case reduced 
 accordingly: Provided further, That it shall be the duty of each official of the 
 Government having such purchases in charge to procure the same from any 
 such unused or surplus stock if possible: Provided further. That hereafter no 
 transfer of motor-propelled vehicles and motor equipment, unless specifically 
 authorized by law, shall be made free of charge to any branch of the Govern- 
 ment service. — (41 Stat., 233, chap. 24.) 
 
 See acts of July 11, 1919, section 5 (41 Stat., 67-68, chap. 6), and Jxily 11, 1919 (41 Stat., 132, 
 chap. 9), and references thereunder. 
 
 [1920, Feb. 25. Lease of naval petroleum reserves, etc.] That deposits of 
 coal, phosphate, sodium, oil, oil shale, or gas, and lands containing such deposits 
 owned by the United States, including those in national forests, but excluding 
 lands acquired under the Act known as the Appalachian Forest Act, approved 
 March 1, 1911 (Thirty-sixth Statutes, page 961), and those in national parks, 
 and in lands withdrawn or reserved for military or naval uses or purposes, 
 except as hereinafter provided, shall be subject to disposition in the form and 
 manner provided by this Act to citizens of the United States, or to any associa- 
 tion of such persons, or to any corporation organized under the laws of the 
 United States, or of any State or Territory thereof, and in the case of coal, oil, 
 oil shale, or gas, to municipalities: Provided, That the United States reserves 
 the right to extract helium from all gas produced from lands permitted, leased, 
 or otherwise granted under the provisions of this Act, under such rules and 
 regulations as shall be prescribed by the Secretary of the Interior: Provided 
 further, That in the extraction of helium from gas produced from such lands, 
 it shall be so extracted as to cause no substantial delay in the delivery of gas 
 produced from the well to the purchaser thereof: And provided further. That* 
 citizens of another country, the laws, customs, or regulations of which, deny 
 similar or like privileges to citizens or corporations of this country, shall not by 
 stock ownership, stock holding, or stock control, own any interest in any lease 
 acquired under the provisions of this Act. — (41 Stat., 437-438, chap. 85.) 
 
 Sec. 18. That upon relinquishment to the United States, filed in the 
 General Land Office within six months after the approval of this Act, of all 
 right, title, and interest claimed and possessed prior to July 3, 1910, and con- 
 tinuously since by the claimant or his predecessor in interest under the preexisting 
 placer mining law to any oil or gas bearing land upon which there has been drilled 
 one or more oil or gas wells to discovery embraced in the Executive order of 
 withdrawal issued September 27, 1909, and not within any naval petroleum 
 reserve, and upon payment as royalty to the United States of an amount equal 
 to the value at the time of production of one-eighth of all the oil or gas already 
 
 1532 
 
PL 3. STATUTES AT LARGE. Mar. 9, 1920. 
 
 produced except oil or gas used for production purposes on the claim, or 
 unavoidably lost, from such land, the claimant, or his successor, if in possession 
 of such land, undisputed by any other claimant prior to July 1, 1919, shall be 
 entitled to a lease thereon from the United States for a period of twenty years, 
 at a royalty of not less than 12^ per centum of all the oil or gas produced except 
 oil or gas used for production purposes on the claim, or unavoidably lost 
 
 * * *.— (41 Stat., 443, chap. 85.) 
 
 All such leases shall be made and the amount of royalty to be paid for oil 
 and gas produced, except oil or gas used for production purposes on the claim, 
 or unavoidably lost, after the execution of such lease shall be fixed by the Secre- 
 tary of the Interior under appropriate rules and regulations : Provided, however, 
 That as to all like claims situate within any naval petroleum reserve the pro- 
 ducing wells thereon only shall be leased, together with an area of land suffi- 
 cient for the operation thereof, upon the terms and payment of royalties for 
 past and future production as herein provided for in the leasing of claims. 
 
 * * *.— (41 Stat., 444, chap. 85.) 
 
 Sec. 35. * * * That all moneys which may accrue to the United States 
 under the provisions of this Act from lands within the naval petroleum reserves 
 shall be deposited in the Treasury as "Miscellaneous receipts." — (41 Stat., 
 450-451, chap. 85.) 
 
 See acts of August 25, 1914 (38 Stat., 709), August 29, 1916 (39 Stat., 55^560), and June 4, 
 1920(41 Stat., 813). 
 
 [1920, Mar. 6. Sale of naval supplies to personnel of Coast Guard and Public 
 Health Service.] Officers and enlisted men of the Coast Guard shall be permitte>d 
 to purchase quartermaster supplies from the Army, Navy, and Marine 
 Corps at the same price as is charged the officers and enlisted men of the Army, 
 Navy, and Marine Corps. * * *. — (41 Stat., 506, chap. 94.) 
 
 Hereafter officers of the Public Health Service may purchase quartermaster 
 supplies from the Army, Navy, and Marine Corps at the same price as is charged 
 officers of the Army, Navy, and Marine Corps. — (41 Stat., 507, chap. 94.) 
 
 See act of March 4, 1913 (37 Stat., 909), and references thereunder. 
 
 [1920, Mar. 6. Naval service, etc., credited to ofl5.cers of Public Health 
 Service.] Ofiicers of the Public Health Service shall be credited with 
 service in the Army, Navy, Marine Corps, and the Coast Guard in computing 
 longevity pay. — (41 Stat., 507, chap. -94.) 
 
 [1920, Mar. 9, sec. 10. Salvage by Government owned vessels.] That the 
 United States, and the crew of Siuj merchant vessel owned or operated by the 
 United States, or such corporation, shall have the right to collect and sue for 
 salvage services rendered by such vessel and crew, and any moneys recovered 
 therefrom bv the United States for its own benefit, and not for the benefit of 
 the crew, shall be covered into the United States Treasury to the credit of the 
 department of the Government of the United States, or of the United States 
 Shipping Board, or of such corporation, having control of the possession or 
 operation of such vessel. — (41 Stat., 528, chap. 95.) 
 
 See sections 1536 and 4642, Re^dsed Statutes, and acts of August 1, 1912 (37 Stat., 242), and 
 July 1, 1918 (40 Stat., 705). 
 
 1533 
 
May 18, 1920. 
 
 PL 3. STATUTES AT LARGE. 
 
 [1920, May 18. Temporary increases in pay and allowances, naval personnel, 
 
 etc.] 
 
 This act provided as follows: 
 
 "Tliat commencing January 1, 1920, com- 
 missioned officers of the Army, Navy, and 
 Marine Corps, and Public Health Service shall 
 be paid, in addition to all pay and allowances 
 now allowed by law, increases at rates per 
 annum as follows: Colonels in the Army and 
 Marine Corps, captains in the Navy, and 
 assistant surgeons general in the Public Ilealth 
 Service, $600 ; lieutenant colonels in the Army 
 and Marine Corps, commanders in the Navy, 
 and senior surg(>ons in the Public Health 
 Service, $G00; majors in the Army and Marine 
 Corps, lieutenant commanders in the Navy, 
 and surgeons in the Public Health Service, 
 $840; captains in the Army and Marine Corps, 
 lieutenants in the Navy, and passed assistant 
 surgeons in the Public Health Service, $720; 
 first lieutenants in the Army and Marine Corps, 
 lieutenants (junior grade), acting assistant 
 surgeons and acting assistant dental siirgeons 
 in the Navy, and assistant sm-geons in the 
 Public Health Service, $600 ; second lieutenants 
 in the Army and Marine Corps, and ensigns in 
 the Navy, $420: Provided, That contract sur- 
 geons of the Army serving full time shall re- 
 ceive the pay of a second lieutenant. — (41 
 Stat., 601-602, chap. 190.) 
 
 "Sec. 2. That the rights and benefits pre- 
 scribed under the Act of April 16, 1918, granting 
 commutation of quarters, heat, and light 
 during the present emergency to officers of the 
 Army on duty in the field are hereby continued 
 and made effective untilJune 30, 1922, and shall 
 apply equally to officers of the Navy, Marine 
 Corps, Coast Guard, and Public Health Service: 
 Provided, That such rights and benefits as are 
 prescribed for officers shall apply equally for 
 enlisted men now entitled by regulations to 
 quarters or to commutation therefor. 
 
 "Sec. 3. That, commencing January 1, 1920, 
 warrant officers of the Navy shall be paid, in 
 addition to all pay and allowances now allowed 
 by law, an increase at the rate of $240 per 
 annum. 
 
 "Sec 4. That, commencing January 1, 1920, 
 the pay of all enlisted men of the Army and 
 Marine Corps and of members of the female 
 Nurse Corps of the Army and Navy is hereby 
 increased 20 per centum: Provided, That such 
 increase shall not apply to enlisted men whose 
 initial pay, if it has already been permanently 
 increased since April 6, 1917, is now less than 
 $33 per month, 
 
 "Sec. 5. That all noncommissioned officers 
 of the Army of grade of color sergeant and above 
 as fixed by existing Army Regulations and 
 noncommissioned officers of the Marine Corps 
 of corresponding grades shall be entitled to one 
 ration or commutation therefor in addition to 
 that to which they are now entitled. The 
 commutation value shall be determined by the 
 President on July 1 of each fiscal year, and for 
 the ciurent fiscal year the value shall be 
 computed on the basis of 55 cents per ration: 
 Provided, That Army field clerks and field 
 clerks Quartermaster Corps, whose total pay 
 and allowances do not exceed $2,500 per 
 
 annum, shall be paid an increase at the rate of 
 $240 per annum : Provided further, That such 
 Army field clerks and field clerks Quarter- 
 master Corps, whose total pay and allowances 
 exceed $2,500 but do not exceed $2,740 per 
 annum, shall be paid such additional amount 
 as will make their total pay and allowances 
 not to exceed $2,740 per annum: Provided 
 further. That this section shall not be construed 
 to reduce the pay and allowances of any Army 
 field clerk or field clerk Quartermaster Corps.— 
 (41 Stat., 602, chap. 190.) 
 
 "Sec 6. That, commencing January 1, 1920, 
 the following shall be the rate of base pay for 
 for each enlisted rating: Chief petty officers 
 with acting appointments, $99 per month; 
 chief petty officers with permanent appoint- 
 ments and mates, $126 per month; petty officers, 
 first class, $84 per month; petty officers, second 
 class, $72 per month ; petty officers, third class, 
 $60 per month; nonrated men, first class, $54 
 per month; nonrated men, second class, $48 
 per month; nonrated men, third class, $33 per 
 month: Provided, That the base pay of firemen, 
 first class, shall be $60 per month; firemen, 
 second class, $54 per month; firemen, third 
 class, $48 per month: Provided further, That the 
 rate of base pay for each rating in the Naval 
 Academy Band shall be as follows: Second 
 leader, with acting appointment, $99 per month, 
 with permanent appointment, $126 per month; 
 drum major, $84 per month; musicians, first 
 class, $72 per month; musicians, second class, 
 $60 per month: Provided further. That the base 
 pay of cabin stewards and cabin cooks shall be 
 $84 per month; wardroom stewards and ward- 
 room cooks, $72 per month; steerage stewards 
 and steerage cooks, $72 per month; warrant 
 officers' stewards and warrant officers' cooks, 
 $60 per month; mess attendants, first class, 
 $42 per month; mess attendants, second class, 
 $36 per month; mess attendants, third class, 
 $33 per month: Provided further, That the re- 
 tainer pay of those members of the Fleet Naval 
 Reserve who, pursuant to call, shall return to 
 active duty within one month after the approval 
 of this Act and shall continue on active duty 
 until the Navy shall have been recruited up 
 to its permanent authorized strength, or until 
 the number in the grade to which they may 
 be assigned is filled, but not beyond June 30, 
 1922, shall be computed upon the base pay 
 they are receiving when retransferred to in- 
 active duty, plus the additions or increases pre- 
 scribed in the Naval Appropriation Act 
 approved August 29, 1916, for members of the 
 Fleet Naval Reserve: Provided further , That the 
 rates of base pay herein fixed shall not be 
 further increased 10 per centum as authorized 
 by an Act approved May 13, 1908, nor by the 
 temporary war increases as authorized by 
 section 15 of the Act approved May 22, 1917, 
 as amended by the Act approved July 11, 
 1919. * * * .—(41 Stat., 602-603, chap. 
 190.) 
 
 "Sec 9. That nothing contained in this Act 
 shall be construed as granting any back pay or 
 allowances to any officer or enlisted man whose 
 
 1534 
 
Pt. 3. STATUTES AT LARGE. 
 
 May 18, 1020. 
 
 active service shall have terminated subsequent 
 to December 31, 1919, and prior to the approval 
 of this Act, unless such officers or enlisted men 
 shall have been recalled to active service or 
 shall have been reenlisted prior to the approval 
 of this Act. 
 
 "Sec. 10. That any enlisted man or appren- 
 tice seaman who shall reenlist in the Xavy 
 within one year from the date of his discharge 
 therefrom shall, upon such reenlistment, be 
 entitled to and shall receive the same benefits as 
 are now authorized by law for reenlistment 
 within four months from date of last discharge 
 from the service: Provided, That this section 
 shall become inoperative six months after the 
 date of the approval of this Act. * * *. — (41 
 Stat., 603, chap. 190.) 
 
 "Sec. 13. That the provisions of sections 1, 
 8, 4, 5, and 6 of this Act shall remain effective 
 iintil the close of the fiscal year ending June 30, 
 1922, unless sooner amended or repealed: Pro- 
 vided, That the rates of pay prescribed in sec- 
 tions 4 and 6 hereof shall be the rates of pay dur- 
 ing the current enlistment of all men in active 
 ser-\dce on the date of the approval of this Act, 
 and for those who enlist, reenlist, or extend 
 their enlistment prior to July 1, 1922, for the 
 term of such enlistment, reenlistment, or ex- 
 tended enlistment: Provided further. That the 
 increases pro\dded in this Act shall not enter 
 into the computation of the retired pay of 
 officers or enlisted men who may be retired prior 
 to July 1, 1922: And provided further. That a 
 special committee, to be composed of five Mem- 
 bers of the Senate, to be appointed by the Vice 
 President, and five Members of the House of 
 Representatives, to be appointed by the 
 
 [1920, May 18, sec. 7. Pay of civilian professors. Naval Academy.] That 
 the Secretary of the Navy is authorized, in his discretion, to readjust the pre- 
 vailing rates of pay of civilian professors and instructors at the United States 
 Naval Academy: Provided, That said readjustment, which shall be effective 
 from January 1, 1920, shall not involve an additional expenditure in excess of 
 $55,000 for the remainder of the current fiscal year. — (41 Stat., 603, chap. 
 190.) 
 
 See act of August 29, 1916 (39 Stat., 607), and note to section 1528, Revised Statutes. 
 
 [1920, May 18, sec. 11. longevity pay, naval officers; service credited.] 
 * * * That hereafter longevity pay for oflicers in the Army, Navy, Marine 
 Corps, Coast Guard, Public Health Service, and Coast and Geodetic Survey 
 shall be based on the total of all service in any or all of said services. — (41 Stat., 
 604, chap. 190.) 
 
 See note to section 1556, Revised Statutes, under "39. Longevity pay." 
 
 [1920, May 18, sec. 12. Transportation to families of officers and enlisted 
 men on permanent change of station ; transportation of household effects.] 
 That hereafter when any commissioned officer, noncommissioned officer of the 
 grade of color sergeant and above, including any noncommissioned officer of 
 the Marine Corps of corresponding grade, warrant officer, chief petty officer, or 
 petty officer (first class) having a wife or dependent child or children, is 
 ordered to make a permanent change of station, the United States shall fur- 
 
 Speaker of the House of Representatives, shall 
 make an investigation and report recommenda- 
 tions to their respective Houses not later than 
 the first Monday in January, 1922, relative to the 
 readjustment of the pay and allowances of the 
 commissioned and enlisted personnel of the 
 several services herein mentioned . 
 
 "Sec. 14. That nothing contained in this Act 
 shall operate to reduce the pay or allowances of 
 any officer or enlisted man on the active or 
 retired list: Provided, That the allowances and 
 gratuities now authorized by existing law are 
 not changed hereby, except as otherwise speci- 
 fied in this Act.— (41 Stat., 604, chap. 190.) 
 
 "Sec. 15. That the appropriations 'Pay of 
 the Navy, 1920, 'and 'Pay, Marine Corps, 1920,' 
 are hereby made available for any of the ex- 
 penses authorized by this Act, and any part or 
 all of the appropriations 'Provisions, Navy, 
 1920,' and 'Maintenance, Quartermaster's De- 
 partment, Marine Corps, 1920,' not required for 
 the objects of expenditure specified in said ap- 
 propriations, may be transferred to the appro- 
 priations 'Pay of the Navy, 1920,' or 'Pay, Ma- 
 rine Corps, 1920,' respectively, as may be re- 
 quired."— (41 Stat., 604-605, chap. 190.) 
 
 Omitted portions of this act which con- 
 tained permanent legislation relating to the 
 Na\'y are set forth below; other omitted por- 
 tions of the act related exclusively to the Coast 
 Guard and Coast and Geodetic Survey. 
 
 As to pay of the Navy, Naval Reserve Force, 
 and ^larine Corps, see notes to sections 1556, 
 1569, 1573, and 1612, Revised Statutes; as to 
 rations of Marine Corps, see note to section 1615, 
 Revised Statutes. 
 
 1535 
 
May 22, 1920. PL 3. STATUTES AT LARGE. Civil Ketirement. 
 
 nish transportation in kind from funds appropriated for the transportation 
 of the Army, the Navy, the Marine Corps, the Coast Guard, the Coast and 
 Geodetic Survey, and the Pubhc Health Service to his new station for the wife 
 and dependent child or children: Provided, That for persons in the naval service 
 the term ''permanent station," as used in this section, shall be interpreted to 
 mean a shore station or the home yard of the vessel to which the person con- 
 corned may be ordered; and a duly authorized change in home yard or home 
 port of such vessel shall be deemed a change of station: Provided further, That 
 if the cost of such transportation exceeds that for transportation from the old 
 to the new station the excess cost shall be paid to the United States by the 
 officer concerned: Provided further, That transportation supplied the wife or 
 dependent child or children of such officer, to or from stations beyond the 
 continental limits of the United States, shall not be other than by Government 
 transport, if such transportation is available: And provided further. That the 
 pereonnel of the Navy shall have the benefit of all existing laws applying to 
 the Army and the Marine Corps for the transportation of household effects. — 
 ''41 Stat., 604, chap. 190.) 
 
 [1920, May 21, sec. 7. Transfer of appropriations between bureaus and 
 departments ; supplies and services.] That whenever any Government bureau 
 or department procures, by purchase or manufacture, stores or materials of any 
 kind, or performs any service for another bureau or department, the funds of 
 the bureau or department for which the stores or materials are to be procured 
 or the service performed may be placed subject to the requisitions of the bureau 
 or department making the procurement or performing the service for direct 
 expenditure: Provided, That funds so placed with the procuring bureau shall 
 remain available for a period of two years for the purposes for which the allo- 
 cation was made unless sooner expended. — (41 Stat., 613, chap. 194.) 
 
 A similar provision, limited to the War and j of March 4, 1915 (38 Stat., 1084); see refer- 
 
 Navy Departments, was contained in act I ences under that act. 
 
 [1920, May 22. Retirement of civil employees; deductions from pay for 
 retirement fund ; etc.] That beginning at the expiration of ninety days next 
 following the passage of this Act, all employees in the classified civil service of 
 the United States who have on that date, or shall have on any date thereafter, 
 reached the age of seventy years and rendered at least fifteen years of service 
 computed as prescribed in section 3 of this Act, shall be eligible for retirement 
 on an annuity as provided in section 2 hereof: Provided, That mechanics, city 
 and rural letter carriers, and post-office clerks shall be eligible for retirement at 
 sixty-five years of age, and railway postal clerks at sixty-two years of age, if 
 said mechanics, city and rural letter carriers, post-office clerks, and railway 
 postal clerks shall have rendered at least fifteen years of service computed as 
 prescribed in section 3 of this Act. 
 
 The provisions of this Act shall include superintendents of United States 
 national cemeteries, employees of the Superintendent of the United States 
 Capitol Buildings and Grounds, the Librar}^ of Congress, and the Botanic Gar- 
 dens, excepting persons appointed by the President and confirmed by the 
 Senate, and may be extended by Executive order, upon recommendation of the 
 Civil Service Commssion, to include any employee or group of employees in the 
 
 1536 
 
Civil Retirement. Pt. 3. STATUTES AT LARGE. May 22, 1920. 
 
 civil service of the United States not classified at the time of the passage of 
 this Act. The President shall have power, in his discretion, to exclude from the 
 operation of this Act any employee or group of employees in the classified 
 civil service whose tenure of office or employment is intermittent or of uncer- 
 tain duration. * * * 
 
 Sec. 2. [Classification and rates for annuities.] That for the pur- 
 pose of determining the amount of annuity which retired employees shall receive, 
 the following classifications and rates shall be established: 
 
 Class A shall include all employees to whom this Act applies who shall 
 have served the United States for a total period of thirty years or more. The 
 annuity to a retired employee in this class shall equal 60 per centum of such 
 employee's average annual basic salary, pay, or compensation from the United 
 States for the ten years next preceding the date on which he or she shall retire : 
 Provided, That in no case shall an annuity in this class exceed $720 per annum 
 or be less than $360 per annum. — (41 Stat., 614, chap. 195.) 
 
 Class B shall include all employees to whom this Act applies who shall 
 have served the United States for a total period of twenty-seven years or more, 
 but less than thirty years. The annuity to a retired employee in this class 
 shall equal 54 per centum of such employee's average annual basic salary, pay, 
 or compensation from the United States for the ten years next preceding the 
 date on which he or she shall retire : Provided, That in no case shall an annuity 
 in this class exceed $648 per ammm, or be less than $324 per annum. 
 
 Class C shall include all employees to whom this Act applies who shall have 
 served the United States for a total period of twenty-four years or more, but 
 less than twenty-seven years. The annuity to a retired employee in this class 
 shall equal 48 per centum of such employee's average annual basic salary, pay, 
 or compensation from the United States for the ten years next preceding the 
 date on which he or she shall retire : Provided, That in no case shall an annuity 
 in this class exceed $576 per annum, or be less than $288 per annum. 
 
 Class D shall include all employees to whom this Act applies who shall have 
 served the United States for a total period of twenty-one years or more, but less 
 than twenty-four years. The annuity to a retired employee in this class shall 
 equal 42 per centum of such employee's average annual basic salary, pay, or 
 compensation from the United States for the ten years next preceding the date 
 on which he or she shall retire: Provided, That in no case shall an annuity in 
 this class exceed $504 per annum, or be less than $252 per annum. 
 
 Class E shall include all employees to whom this Act applies who shall have 
 served the United States for a total period of eighteen years or more, but less 
 than twenty-one years. The annuity to a retired emplpyee in this class shall 
 equal 36 per centum of such employee's average annual basic salary, pay, or 
 compensation from the United States for the ten years next preceding the date 
 on which he or she shall retire : Provided, That in no case shall an annuity in this 
 class exceed $432 per annum, or be less than $210 per annum. 
 
 Class F shall include all employees to whom this Act applies who shall have 
 served the United States for a total period of fifteen years or more, but less than 
 eighteen years. The annuity to a retired employee in this class shall equal 30 
 per centum of such employee's average annual basic salary, pay, or compensa- 
 tion from the United States for the ten years next preceding the date on which 
 
 1537 
 
May 22, 1920. Pt. S. STATUTES AT LARGE. Civil Retirement. 
 
 he or she shall retu-c: Providtd, That in no case shall an annuity in this class 
 exceed S360 per annum, or be less than $180 per annum. 
 
 The term ''basic salary, pay, or compensation" wherever used in this Act 
 shall be so construed as to exclude from the operation of the Act all bonuses, 
 allowances, overtime pay, or salary, pay, or compensation given in addition to 
 the base pay of the positions as fixed by law or regulation. — (41 Stat., 615, 
 chap, 195.) 
 
 Sec. 3. [Computation of service.] That for the purposes of this Act and 
 subject to the provisions of section 10 hereof, the period of service shall be 
 computed from the date of original employment, whether as a classified or un- 
 classified employee in the civil service of the United States, and shall include 
 periods of service at different times and services in one or more departments, 
 branches, or independent offices of the Government, and shall also include 
 service performed under authority of the United States be^^ond seas, and 
 honorable service in the Army, Navy, Marine Corps, or Coast Guard of the 
 United States: Provided, That in the case of an employee who is eligible for and 
 elects to receive a pension under any law, or compensation under the War Risk 
 Insurance Act, the period of his or her militaiy or naval service upon which 
 such pension or compensation is based shall not be included for the purpose of 
 assignment to classes defined in section 2 hereof, but nothing contained in this 
 Act shall be so construed as to affect in any manner his or her right to a pension, 
 or to compensation under the War Risk Insurance Act, in addition to the 
 annuity herein provided.^(41 Stat., 615-616, chap. 195.) 
 
 It is further provided that in computing length of service for the purposes 
 of this Act all periods of separation from the service and so much of any period 
 of leave of absence as may exceed six months shall be excluded, and that in the 
 case of substitutes in the Postal Service only periods of active employment 
 shall be included. 
 
 Sec. 4. [Commissioner of Pensions, jurisdiction; appeals.] That for 
 the purpose of administration, except as otherwise provided herem, the Com- 
 missioner of Pensions, under the direction of the Secretary of the Interior, be, 
 and is hereby, authorized and directed to perform, or cause to be performed, 
 any and all acts and to make such rules and regulations as may be necessary 
 and proper for the purpose of carrying the provisions of this Act into full force 
 and effect. An appeal to the Secretary of the Interior shall lie from the final 
 action or order of the Commissioner of Pensions affecting the rights or interests 
 of any person or of the United States under this Act, the procedure on appeal 
 to be as prescribed by the Commissioner of Pensions, with the approval of the 
 Secretary of the Interior. 
 
 Sec. 5. [Disability retirement in lieu of other compensation.] That 
 any employee to whom this Act applies who shall have served for a total period 
 of not less than fifteen years, and who, before reaching the retirement age as fixed 
 in section 1 hereof, becomes totally disabled for useful and efficient service by 
 reason of disease or injury not due to vicious habits, intemperance; or willful 
 misconduct on the part of the employee, shall upon his or her own application 
 or upon the request or order of the head of the department, branch, or inde- 
 pendent office concerned, be retired on an annuity under the provisions of 
 section 2 hereof: Provided, however. That no employee shall be retired under 
 
 1538 
 
Civil Retirement. Pt. 3. STATUTES AT LARGE. May 22, 1920. 
 
 the provisions of this section until examined by a medical officer of the United 
 States or a duly qualified physician or surgeon or board of physicians or surgeons 
 designated by the Commissioner of Pensions for that purpose and found to be 
 disabled in the degree and in the manner specified herein. 
 
 Every annuitant refilled under the provisions of this section, unless the 
 disability for which retired is permanent in character, shall, at the expiration 
 of one year from the date of such retu'ement and annually thereafter until 
 reaching the retirement age as defined in section 1 hereof, be examined under 
 direction of the Commissioner of Pensions by a medical officer of the United 
 States, or a duly qualified physician or surgeon or board of physicians or sur- 
 geons designated by the Commissioner of Pensions for that purpose, in order to 
 ascertain the nature and degree of the annuitant's disability, if any; if the 
 annuitant recovers and is restored to his or her former earning capacity before 
 reaching the retirement age, payment of the aimuity shall be discontinued from 
 the date of the medical examination showing such recovery; if the annuitant 
 fails to appear for examination as required under this section, payment of the 
 annuity shall be suspended until continuance of the disability has been satisfac- 
 torily established. The Commissioner of Pensions is hereby authorized to order 
 or direct at any time such medical or other examination as he shall deem 
 necessary to determine the facts relative to the nature and degree of disability 
 of any employee retired on an annuity under this section. 
 
 Fees for examinations made under the provisions of this section by physi- 
 cians or surgeons who are not medical officers of the United States shall be fixed 
 by the Commissioner of Pensions, and such fees, together with the employee's 
 reasonable traveling and other expenses incurred in order to submit to such 
 examinations, shall be paid out of the appropriations for the cost of administer- 
 ing this Act.— (41 Stat., 616, chap. 195.) 
 
 In all cases where the annuity is discontinued under the provisions of this 
 section before the annuitant has received a sum equal to the total amount of 
 his or her contributions with accrued interest, the difference shall be paid to 
 the retired employee, or to his or her estate, upon application therefor in such 
 form and manner as the Commissioner of Pensions may direct. 
 
 No person shall be entitled to receive an annuity under the provisions of 
 this Act, and compensation under the provisions of the Act of September 7, 
 1916, entitled ''An Act to provide compensation for employees of the United 
 States suffering injuries while in the performance of their duties, and for other 
 purposes," covering the same period of time; but this provision shall not be so 
 construed as to bar the right of any claimant to the greater benefit conferred 
 by either Act for any part of the same period of time. 
 
 Sec. 6. [Retention in service beyond retiring age.] That all em- 
 ployees to whom this Act applies shall, upon the expiration of ninety days 
 next succeeding its passage, if of retirement age, or thereafter on arriving at 
 retirement age as defined in section 1 hereof, be automatically separated from 
 the service, and all salary, pay, or compensation shall cease from that date, 
 and it shall be the duty of the head of each department, branch, or independent 
 office of the Government to notify such employees under his direction of the date 
 of such separation from the service at least sixty days in advance thereof: 
 
 1539 
 
May 22, 1920. Pt. ,S. STATUTES AT LARGE. CivU Ketirement. 
 
 Provided, That no person employed in the executive departments within the 
 District of Cohimbia, retired under the provisions of this Act during the fiscal 
 year ending June 30, 1921, shall be replaced by additional employees, but if the 
 exigencies of the service so require, places made vacant by such retirement 
 may be filled by promotion or transfer of eligible employees already in the 
 service : Provided, That if within sixty days after the passage of this Act or not 
 less than thirty days before the arrival of an employee at the age of retirement, 
 the head of the department, branch, or independent office of the Government 
 in which he or she is employed certifies to the Civil Service Commission that by 
 reason of his or her efficiency and willingness to remain in the civil service of 
 the United States the continuance of such employee therein would be advanta- 
 geous to the public service, such employee may be retained for a term not ex- 
 ceeding two years upon approval and certification by the Civil vService Com- 
 mission, and at the end of the two years he or she may, by similar approval and 
 certification, be continued for an additional term not exceeding two years, and 
 so on: Provided, however. That at the end of ten years after this act becomes 
 effective no employee shall be continued in the civil service of the United States 
 beyond the age of retirement defined in section 1 hereof for more than four 
 years. — (41 Stat., 617, chap. 195.) 
 
 Sec. 7. [Application; certificate of head of department.] That 
 every employee who is or hereafter becomes eligible for retirement because of 
 age as provided in this Act, shall, within sixty days after its passage or thirty 
 days before reaching the -retirement age, or at any time thereafter, file with the 
 Commissioner of Pensions, in such form as he may prescribe, an application for 
 an annuity, supported by a certificate from the head of the department, branch, 
 or independent office of the Government in which the applicant has been em- 
 ployed, stating the age and period or periods of service of the applicant and 
 salary, pay, or compensation received during such periods, as shown by the 
 official records: Provided, however, That in the case of an employee who is to 
 be continued in the civil service of the United States beyond the retirement age 
 as provided in section 6 hereof, he or she may make application for retirement 
 at any time within such period of continuance in the service ; but nothing con- 
 tained in this Act shall be construed to prevent the compulsory retirement of 
 such employee when in the judgment of the head of the department, branch, or 
 independent office in which he or she is employed such retirement would pro- 
 mote the best interests of the service. — (41 Stat., 617-618, chap. 195.) 
 
 Upon receipt of satisfactory evidence the Commissioner of Pensions shall 
 forthwith adjudicate the claim of the applicant, and if title to annuity be estab- 
 lished, a proper certificate shall be issued to the annuitant under the seal of the 
 Department of the Interior. 
 
 Annuities granted under this Act for retirement on account of age shall 
 commence from the date of separation from the service on or after the date this 
 Act shall take effect, and shall continue during the life of the annuitant. Annui- 
 ties granted for disability under the provisions of section 5 hereof shall be subject 
 to the limitations specified in said section. 
 
 Sec. 8. [Deductions from salaries; donations, etc.] That beginning 
 on the first day of the third month next following the passage of this Act and 
 
 1540 
 
Civil Retirement. Pt. 3. STATUTES AT LARGE. May 22, 1920. 
 
 monthly thereafter there shall be deducted and withheld from the basic salary, 
 pay, or compensation of each employee to whom this Act applies a sum equal 
 to 2^ per centum of such employee's basic salary, pay, or compensation. The 
 Secretary of the Treasury shall cause the said deductions to be withheld from 
 all specific appropriations for the particular salaries or compensation from which 
 the deductions are made and from all allotments out of lump-sum appropria- 
 tions for payments of such salaries or compensation for each fiscal year, and 
 said sums shall be transferred on the books of the Treasury Department to the 
 credit of a special fund to be known as "the civil-service retirement and disa- 
 bility fund," and said fund is hereby appropriated for the payment of annuities, 
 refunds, and allowances as provided in this Act. 
 
 The Secretary of the Treasury is hereby directed to invest from time to 
 time, in interest-bearing securities of the United States, such portions of the 
 '' civil-service retirement and disability fund" hereby created as in his judgment 
 may not be immediately required for the payment of annuities, refunds, and 
 allowances as herein provided, and the income derived from such investments 
 shall constitute a part of said fund for the purpose of paying annuities and of 
 carrying out the provisions of section 1 1 of this Act. 
 
 The Secretary of the Treasury is hereby authorized and empowered in 
 carrying out the provisions of this Act to supplement the individual contribu- 
 tions of employees with moneys received in the form of donations, gifts, legacies, 
 bequests, or otherwise, and to receive, invest, and disburse for the purposes of 
 this Act all moneys which may be contributed by private individuals or cor- 
 porations or organizations for the benefit of civil-service employees generally or 
 any special class of employees. 
 
 Sec. 9. [Deductions compulsory.] That every employee coming within 
 the provisions of this Act shall be deemed to consent and agree to the deductions 
 from salary, pay, or compensation as provided in section 8 hereof, and payment 
 less such deductions shall be a full and complete discharge and acquittance of 
 all claims and demands whatsoever for all regular services rendered by such 
 employee during the period covered by such payment, except the right to the 
 benefits to which he or she shall be entitled under the provisions of this Act, 
 notwithstanding the provisions of sections 167, 168, and 169 of the Revised 
 Statutes of the United States, and of any other law, rule, or regulation affecting 
 the salary, pay, or conupensation of any person or persons employed in the civil 
 service to whom this Act applies. — (41 Stat., 618, chap. 195.) 
 
 Sec. 10. [Employees reinstated, etc.] That upon the transfer of any 
 employee from an unclassified to a classified status, or upon the reinstatement 
 of a former employee, credit for past service rendered subsequent to the date 
 this Act shall take effect, or for any part thereof, shall be granted only upon 
 deposit with the Treasurer of the United States of the amount of such deduc- 
 tions with interest as provided in this Act as would have been made for the 
 periods of actual service, or part thereof, for which credit is to be given, but such 
 interest shall not be computed for periods of separation from the service: 
 Provided, That failure to make such deposit shall not deprive the employee of 
 credit for any past service rendered prior to the date this Act shall become 
 operative, and to which he or she would otherwise be entitled. — (41 Stat., 
 618-619, chap. 195.) 
 
 1541 
 
M0.y22, 1920. Pt. S. STATUTES AT LARGE. Civil Ketirement. 
 
 Sec. U. [Payment of deductions on separation from service, etc.] 
 That in the case of an employee in the cbissified civil service of the United 
 States who shall be transferred to an unclassified position, and in the case of 
 any employee to whom this Act applies who shall become absolutely separated 
 from the service before becoming eligible for retirement on an annuity, the total 
 amount of deductions of salary, pay, or compensation with accrued interest 
 computed at the rate of 4 per centum per annum, compounded on June 30 of 
 each fiscal year, shall, upon application, be returned to such employee: Pro- 
 vided, Tliat all money so returned to an employee must be redeposited with 
 interest before such employee may derive any benefit under the provisions of 
 this Act, upon reinstatement or retransfer to a classified position; and in case 
 an annuitant shall die without having received in annuities an amount equal 
 to the total amount of the deductions from his or her salary, pay, or compensa- 
 tion, together with interest thereon at 4 per centum per annum compounded 
 as herein provided up to the time of his or her death, the excess of the said 
 accumulated deductions over the said annuity payments shall be paid in one sum 
 to his or her legal representatives upon the establishment of a valid claim 
 therefor; and in case an employee shall die without having reached the retire- 
 ment age or without having established a valid claim for annuity, the total 
 amount of deductions with accrued interest as herein provided shall be paid 
 to the legal representatives of such employee: Provided, That if in case of 
 death the amount of deductions to be paid under the provisions of this section 
 does not exceed S300, and if there has been no demand upon the Commissioner 
 of Pensions by a duly appointed executor or administrator, the payment may 
 be made, after the expiration of three months from date of death, to such 
 person or persons as may appear in the judgment of the Commissioner of 
 Pensions to be legally entitled to the proceeds of the estate, and such payment 
 shall be a bar to recovery by any other person. 
 
 wSec. 12. [Monthly payment of annuities.] That annuities granted 
 under the terms of this Act shall be due and payable monthly on the first 
 business day of the month following the month or other period for whicli the 
 annuity shall have accrued, and payment of all annuities, refunds, and allow- 
 ances granted hereunder shall be made by checks drawn and issued by the dis- 
 bursing clerk for the payment of pensions in such form and manner and with 
 such safeguards as shall be prescribed by the Secretary of the Interior in ac- 
 cordance with the laws, rules, and regulations governing accountmg that may 
 be found applicable to such payments. — (41 Stat., 619, chap. 195.) 
 
 Sec. 13. [Reports to be made by departments, etc.] That it shall be 
 the duty of the head of each executive department and the head of each in- 
 dependent establishment of the Government not within the jurisdiction of 
 any executive department to report to the Civil Service Commission in such 
 manner as said commission may prescribe, the name and grade of eacli em- 
 ployee to whom this Act applies in or under said department or establishment 
 who shall be at any time in a nonpay status, showing the dates such employee 
 was in a nonpay status, and the amount of salary, pay, or compensation lost 
 by the employee by reason of such absence. The Civil Service Commission 
 shall keep a record of appointments, transfers, changes in grade, separations 
 from the service, reinstatements, loss of pay, and such other information 
 
 1542 
 
Civil Retirement. Ft. 3. STATUTES AT LARGE. May 22, 1920. 
 
 concerning individual service as may be deemed essential to a proper determina- 
 tion of rights under this Act, and shall furnish the Commissioner of Pensions 
 such reports therefrom as he shall from time to time request as necessary to the 
 proper adjustment of any claim hereunder, and shall prepare and keep all 
 needful tables and records required for carrying out the provisions of this Act, 
 including data showing the mortality experience of the employees in the service, 
 and the percentage of withdrawal from such service, and any other information 
 that may serve as a guide for future valuations and adjustments of the plan 
 for the retirement of employees under this Act, — (41 Stat., 619-620, chap. 195.) 
 
 The Commissioner of Pensions shall make a detailed comparative report 
 annually showing all receipts and disbursements on account of refunds, allow- 
 ances, and annuities, together with the total number of persons receiving 
 annuities and the amounts paid them. 
 
 Sec. 14. [Moneys not subject to attachment, etc.] That none of the 
 moneys mentioned in this Act shall be assignable, either in law or equity, or 
 be subject to execution, levy, or attachment, garnishment, or other legal 
 process.— (41 Stat., 620, chap. 195.) 
 
 [1920, May 29. Receipts from publications, Hydrographic Office.] All sums 
 received from the sale of maps, charts, and other publications issued by the 
 Hydrographic Office after June 30, 1921, shall be covered into the Treasury 
 of the United States as miscellaneous receipts. — (41 Stat., 665, chap. 214.) 
 
 See section 443, Revised Statutes, and note thereto. 
 
 [1920, May 29, Sec. 4. Typewriters, sale or exchange restricted.] * * * 
 
 That hereafter no typewriter that has been used less than three years shall be 
 
 sold, exchanged, or given as part payment for anotlier typewriter. — (41 Stat., 
 
 689, chap., 214.) 
 
 A somewhat different provision on the same subject is contained in act of June 5, 1920, 
 section 7 (41 Stat., 947). 
 
 [1920, May 29, sec. 7. Statement of bnildings rented, District of Columbia.] 
 That hereafter the statement of buildings rented within the District of Columbia 
 for the use of the Government, required by the Act of July 16, 1892, shall 
 indicate, in addition to the data required by section 3 of the Act of IVIay 1, 1913, 
 the cost of the care, maintenance, and operation of each building per square 
 foot of floor space of the building or portion of building rented. — (41 Stat., 
 691, chap. 214.) 
 
 See acts of Julv 16, 1892 (27 Stat., 199), and 
 May 1, 1913, section 3 (38 Stat., 3). 
 
 As to annual report concerning Government- 
 owned buildings in the District of Colum- 
 bia, see act of June 5, 1920, section 3 (41 
 Stat., 945). 
 
 [1920, June 4. Passports, Government officers and employees.] That no fee 
 shall be collected for passports issued to officers or employees of tlie United 
 States proceeding abroad in the discharge of their official duties, or to members 
 of their immediate families, or to seamen, or to widows, children, parents, 
 brothers, and sisters of American soldiers, sailors, or marines, buried abroad 
 whose journey is undertaken for the purpose and with the intent of visiting the 
 graves of such soldiers, sailors, or marines, which facts shall be made a part of 
 the application for the passport.— (41 Stat., 750, chap. 223.) 
 
 1543 
 
June 4, 1920. Pt. S. STATUTES AT LARGE. 
 
 [1920, June 4. Articles of War.] * * * Art. 2. Persons subject to 
 MILITARY L.vw. — Tlio following pcrsons are subject to these articles and shall 
 be understooil as included in the term ''any person subject to military law," or 
 "persons subject to military law," whenever used in these articles: Provided, 
 That nothing contained in this Act, except as specifically provided in Article 2, 
 subparagraph (c), shall be construed to apply to any person under the United 
 States naval jurisdiction unless otherwise specifically provided by law. 
 
 (a) All officers, members of the Army Nurse Corps, warrant officers, Army 
 field clerks, field clerks Quartermaster Corps, and soldiers belonging to the 
 Regular Army of the United States; all volunteers, from the dates of their 
 muster or acceptance into the military service of the United States; and all 
 other persons lawfully called, drafted, or ordered into, or to duty or for training 
 in, the said service, from the dates they are required by the terms of the call, 
 draft or order to obey the same; 
 
 (b) Cadets; 
 
 (c) Officers and soldiers of the Marine Corps when detached for service 
 with the armies of the United States by order of the President: Provided, That 
 an officer or soldier of the Marine Corps when so detached may be tried by 
 military court-martial for an offense committed against the laws for the govern- 
 ment of the naval service prior to his detachment, and for an offense committed 
 against these articles he may be tried by a naval court-martial after such 
 detachment ceases; 
 
 (d) All retainers to the camp and all persons accompanying or serving 
 with the armies of the United States without the territorial jurisdiction of the 
 United States, and in time of war all such retainers and persons accompanying 
 or serving with the armies of the United States in the field, both within and 
 without the territorial jurisdiction of the United States, though not otherwise 
 subject to these articles; 
 
 (e) All persons under sentence adjudged by courts-martial; 
 
 (f) All persons admitted into the Regular Army Soldiers' Home at Wash- 
 ington, District of Columbia. * * *.— (41 Stat., 787, chap. 227.) 
 
 Art. 4. Who may serve on courts-martial. — All officers in the mili- 
 tary service of the United States, and officers of the Marine Corps when detached 
 for service with the Army by order of the President, shall be competent to 
 serve on courts-martial for the trial of any persons who may lawfully be brought 
 before such courts for trial. * * *.— (41 Stat., 788, chap. 227.) 
 
 Art. 60. Entertaining a deserter. — Any officer who, after having 
 discovered that a soldier in his command is a deserter from the military or 
 naval service or from the Marine Corps, retains such deserter in his command 
 without informing superior authority or the commander of the organization 
 to which the deserter belongs, shall be punished as a court-martial may direct. 
 * * *.— (41 Stat., 800, chap. 227.) 
 
 Art. 120. Command when different corps or commands happen to 
 JOIN. — When diff"erent corps or commands of the military forces of the United 
 States happen to join or do duty together, the officer highest in rank of the 
 line of the Regular Army, Marine Corps, forces drafted or called into the service 
 of the United States, or Volunteers, there on duty, shall, subject to the pro- 
 visions of the last preceding article, command the whole and give orders 
 
 1544 
 
rt. S. STATUTES AT LARGE. June 4, 1920. 
 
 for what is needful in the service, unless otherwise directed by the Presi- 
 dent * * *.— (41 Stat., 811, chap. 227.) 
 
 See note to section 1342, Revised Statutes. 
 
 [1920, June 4. Special allowances to naval personnel.] That this appro- 
 priation and the appropriation "Pay, Marine Corps," shall be available for 
 special allowances for maintenance to officers and enlisted men of the Navy and 
 Marine Corps serving under unusual conditions. — (41 Stat., 813, chap. 228.) 
 
 This was a proviso following appropriations for See note to section 1558, Revised Statutes, 
 the naval service under the caption "Pay, 
 Miscellaneous." 
 
 [1920, June 4. Naval petroleum reserves.] That the Secretary of the 
 Navy is directed to talce possession of all properties within the naval petroleum 
 reserves as are or may become subject to the control and use by the United 
 States for naval purposes, and on which there are no pending claims or appli- 
 cations for permits or leases under the provisions of an Act of Congress approved 
 February 25, 1920, entitled ''An Act to provide for the mining of coal, phosphate, 
 oil, oil shale, gas, and sodium on the public domain," or pending applications 
 for United States patent under any law; to conserve, develop, use, and operate 
 the same in his discretion, directly or by contract, lease, or otherwise, and to 
 use, store, exchange, or sell the oil and gas products thereof, and those from all 
 royalty oil from lands in the naval reserves, for the benefit of the United States: 
 And 'provided further, That the rights of any claimant under said Act of February 
 25, 1920, are not affected adversely thereby: And provided further, That such 
 sums as have been or may be turned into the Treasury of the United States 
 from royalties on lands within the naval petroleum reserves prior to July 1, 
 1921, not to exceed $500,000, are hereby made available for this purpose until 
 July 1, 1922: Provided further. That this appropriation shall be reimbursed 
 from the proper appropriations on account of the oil and gas products from 
 said properties used by the United States at such rate, not in excess of the 
 market value of the oil, as the Secretary of the Navy may direct. — (41 Stat., 
 813-814, chap. 228.) 
 
 See act of February 25, 1920 (41 Stat., 437-451); see also acts of August 25, 1914 (38 Stat.. 
 709) and August 29, 1916 (39 Stat., 559-560). 
 
 [1920, June 4. Claims for damage caused by naval aircraft.] That the 
 
 Secretary of the Navy is hereby authorized to consider, ascertain, adjust, 
 
 determine, and pay out of this appropriation the amounts due on claims for 
 
 damages whicli liave occurred or may occur to private property growing out of 
 
 the operations of naval aircraft, where such claim does not exceed the sum of 
 
 $500: Provided further. That all claims adjusted under this authority during 
 
 any fiscal year shall be reported in detail to the Congress by the Secretary of 
 
 the Navy.— (41 Stat., 814, chap. 228.) 
 
 Similar provision was contained in act of July 11, 1919 (41 Stat., 133); see also act of .Tune 
 24, 1910 (36 Stat., 607), and references thereunder. 
 
 [1920, June 4. Hydrographic Office, naval officers detailed to.] That the 
 Secretary of the Navy is authorized to detail such naval officers as may be 
 necessary to the Hydrographic Office. — (41 Stat., 816, chap. 228.) 
 
 Similar provision was contained in acts of July 
 1, 1918 (40 Stat., 708), and July 11, 1919 
 (41 Stat., 135). 
 
 See section 431, Revised Statutes, and note 
 thereto. 
 
 1545 
 
June 4, 1920. 
 
 PL S. STATUTES AT LARGE. 
 
 [1920, June 4. Summer schools for boys ; enrollments in Naval Reserve Force.] 
 The Secrettuy of the Navy is hereby authorized, in his direction, to estabUsh 
 at two of the permanent naval training stations experimental summer schools 
 for boys between the ages of sixteen and twenty years. For this purpose he is 
 authorized to use such buildings, or other accommodations, at such training 
 stations; to loan any naval equipment necessary for such purposes, and to give 
 instructions which will fit them for service in the Navy of the United States. 
 He is empowered to establish and enforce such rules within the camp as may be 
 necessary and to detail such members of the naval personnel as may be required 
 in order to encourage and execute the spirit of this Act. The Secretary of the 
 Navy is further authorized to loan the necessary naval uniforms during the 
 period of training and to furnish subsistence, medical attendance, and other 
 necessary incidental expenses for those attending these schools : Provided, That 
 those under instruction, with the consent of their parents or their guardians, 
 shall enroll in the Naval Reserve Force for not less than three months, and no 
 person not so enrolled shall be admitted to said training schools. For carrying 
 out the provisions of this paragraph the sum of $200,000 is appropriated. — 
 (41 Stat., 817, chap. 228.) 
 
 See act of August 29, 1916 (39 Stat., 587), as to enrollments in Naval Reserve Force. 
 
 [1920, June 4. Naval militia made part of Naval Reserve Force.] 
 
 This provision read as follows: 
 "That, until June 30, 1922, of the Organized 
 Militia as provided by law, such part as may be 
 duly prescribed in any State, Territory, or the 
 District of Columbia shall constitute a Naval 
 Militia; and, until June 30, 1922, such of the 
 Naval Militia as now is in existence, and as now 
 organized and prescribed by the Secretary of 
 the Na\'y under authority of the Act of Con- 
 gress approved February 16, 1914, shall be a 
 part of the Naval Reserve Force, and the Sec- 
 retary of the Navy is authorized to maintain 
 and provide for said Naval Militia as provided 
 in said Act: Provided further, That upon their 
 enrollment in the Naval Reserve Force, and 
 not otherwise, until June 30, 1922, the mem- 
 bers of said Naval Militia shall have all the 
 benefits, gratuities, privileges, and emoluments 
 provided by law for other members of the Naval 
 Reserve Force; and that, with the approval of 
 
 the Secretary of the Navy, duty performed in 
 the Naval Militia may be counted as active 
 service for the maintenance of efficiency re- 
 quired by law for members of the Naval Reserve 
 Force: And provided further, That all moneys 
 appropriated for the Naval Reserve Force or 
 for the Naval Militia shall constitute one fund 
 and hereby are made available, under the direc- 
 tion of the Secretary of the Navy, for both." 
 (41 Stat., 817-818, chap. 228.) 
 
 It temporarily modified the act of July 1, 
 1918 (40 Stat., 708), which repealed all laws 
 relating to the Naval Militia. The act of Feb- 
 ruary 16, 1914 (38 Stat., 283-290), referred to 
 above, is omitted from this compilation, in bo 
 far as relates to the Naval Militia, because of 
 the repealing act of July 1, 1918, above cited, 
 and the temporary character of this provision 
 in the act of June 4, 1920. 
 
 [1920, June 4. Automobiles, quarterly reports.] Quarterly reports on all 
 gasoline passenger and freight automobiles shall be made on Form number 124, 
 and one copy of each report shall be filed in the Bureau of Yards and Docks. — 
 (41 Stat., 819, chap. 228.) 
 
 [1920, June 4. Retainer pay, Naval Reserve Force, withheld for cause.] That 
 retainer pay provided by existing law shall not be paid to any member of the 
 Naval Reserve Force who fails to train as provided by law during the year for 
 which he fails to train. — (41 Stat., 824, chap. 228.) 
 
 See note to section 1556, Revised Statutes, as to pay of Naval Reserve Force; see ajso sec- 
 tion 9 of this act (41 Stat., 837), set forth below. 
 
 [1920, June 4. Death gratuity, six months' pay.] That hereafter, immediately 
 upon official notification of the death from wounds or disease, not the result 
 
 1546 
 
PL 3. STATUTES AT LARGE. 
 
 June 4, 1920. 
 
 of his or her own misconduct, of any officer, enlisted man, or nurse on the active 
 list of the Regular Navy or Regular Marine Corps, or on the retired list when on 
 active duty, the Paymaster General of the Navy shall cause to be paid to the 
 widow, and if there be no widow to the child or children, and if there be no widow 
 or child, to any other dependent relative of such officer, enlisted man, or nurse 
 previously designated by him or her, an amount equal to six months' pay at the 
 rate received by such officer, enlisted man, or nurse at the date of his or her death. 
 The Secretary of the Navy shall establish regulations requiring each officer and 
 enlisted man or nurse having no wife or child to designate the proper dependent 
 relative to whom this amount shall be paid in case of his or her death. Said 
 amount shall be paid from funds appropriated for the pay of the Navy and pay 
 of the Marine Corps, respectively: Provided, That nothing in this section or in 
 other existing legislation shall be construed as making the provisions of this 
 section applicable to officers, enlisted men, or nurses of any forces of the Navy 
 of the United States other than those of the regular Navy and Marine Corps, 
 and nothing in this section shall be construed to apply in commissioned grades 
 to any officers except those holding permanent or probationary appointments 
 in the Regular Navy or Marine Corps : Provided, That the provisions of this sec- 
 tion shall apply to the officers and enlisted men of the Coast Guard, and the Sec- 
 retary of the Treasury will cause payment to be made accordingly. — (41 Stat., 
 824-825, chap. 228.) 
 
 officers on active duty, having previously been 
 limited to officers of the active list. 
 
 On the same day another act (War Risk 
 Insurance amendment of Oct. 6, 1917, sec. 
 312, chap. 105) enacted that "the laws provid- 
 ing for gratuities or payments in the event of 
 death in the service and existing pension laws 
 shall not be applicable after the enactment of 
 this amendment to persons now in or hereafter 
 entering the military or naval service, or to 
 their widows, children, or their dependents, 
 except in so far as rights under any such law 
 shall have heretofore accrued." It was held 
 by the Attorney General (31 Op. Atty. Gen., 
 205) that the enactment last quoted (sec. 312 
 of the act of Oct. 6, 1917, 40 Stat. , 408\ repealed 
 the act of October 6, 1917 (40 Stat., 392), 
 pro^'iding for pavment of gratuities. 
 
 Section 312 of 'the act of October 6, 1917 (40 
 Stat., 408), was amended and reenacted bv act 
 of June 25, 1918, section 17 (40 Stat., 613), so 
 as to render prior gratuity and pension laws 
 inapplicable to persons ' " in the active military 
 or naval service" on October 6, 1917, or who 
 thereafter entered the '"active military or 
 naval service," or to their widows, etc. 
 
 Prior legislation.— An allowance of six 
 months' pay in cases of death occurring in line 
 of duty was first authorized in the Navy by 
 act of May 13, 1908 (35 Stat., 128-129). The 
 provision of that act was expressly amended 
 and reenacted by act of August 22, 1912 (37 
 Stat 329), and further amendments were made 
 by acts of March 3, 1915 (38 Stat., 938), and 
 August 29, 1916 (39 Stat., 572), relating to 
 deductions from the gratuity on account of 
 funeral expenses. 
 
 By the same act of March 3, 1915 (38 Stat., 
 939), provision was made for allowance of one 
 year's pay, in the cases of officers and enlisted 
 men whose death resulted from aAiation 
 accidents. 
 
 By act of October 6, 1917 (40 Stat., 392, 
 chap. 89), it was provided that the enactment 
 of August 22, 1912, as amended by act of 
 March 3, 1915, both above cited, ''be, and the 
 same is hereby, amended by inserting after 
 the words 'on the active list of the Na^■y or 
 Iklarine Corps ' a comma and the words ' or 
 of any retired officer or enlisted man serving 
 on active duty during the continuance of the 
 present war,'" thereby extending the prior 
 legislation on this subject to include retired 
 
 [1920, June 4. Mining coal in Alaska.] That $1,000,000 of this appro- 
 priation shall be available for use, in the discretion of the Secretary of the 
 Navy, in mining coal or contracting for the same in Alaska, the transportation 
 of the same, and the construction of coal bunkers and the necessary docks for 
 use in supplying ships therewith; and the Secretary of the Navy is hereby 
 authorized to select from the public coal lands in Alaska such areas as may be 
 
 54641°— 22- 
 
 -98 
 
 1547 
 
June 4, 1920. 
 
 PL 3. STATUTES AT LARGE. 
 
 necessary for use by him for the purposes stated herein. — (41 Stat., 826, chap. 
 228.) 
 
 This was a proA-iso following appropriatione for 
 the naval service under tlie caption 
 "Fuel and transportation"; similar pro- 
 vision was contained in acts of July 1, 1918 
 
 (40 Stat., 730), and July 11, 1919 (41 Stat., 
 148). 
 See act of October 20, 1914, section 2 (38 Stat., 
 742). 
 
 [1920, June 4. Change in name of bureau.] The Bureau of Steam Engi- 
 neering hereafter sliall he designated the "Bureau of Engineering." — (41 Stat., 
 828, chap. 228.) 
 
 See section 419, Revised Statutes. 
 
 [1920, June 4. Enlisted strength, Marine Corps.] The authorized enhsted 
 strength of the active hst of the Marine Corps is hereby permanently estabhshed 
 at twenty-seven thousand four hundred, distribution in the various grades to 
 be made in the same proportion as provided under existing law. — (41 Stat., 
 830, chap. 228.) 
 
 See note to section 1596, Revised Statutes. 
 
 [1920, June 4. Temporary and reserve officers. Marine Corps; transfer to 
 permanent service.] 
 
 This provision read as follows: 
 
 ' ' That all officers serving temporarily in the 
 grades of captain and below upon the date of 
 the passage of this Act shall be eligible to fill 
 existing vacancies and those hereby created 
 in the permanent authorized strength in said 
 grades by transfer to or reappointment in the 
 permanent Marine Corps in the grades not above 
 that of captain. Transfers so made shall be 
 without regard to aoe, and if found not quali- 
 fied for transfer to the same grade as that held 
 by them on the date of transfer then to lower 
 grades after qualification. All officers so trans- 
 ferred shall establish to the satisfaction of the 
 Secretary of the Navy, under such rules as he 
 may prescribe, their mental, moral, profes- 
 sional, and physical qualifications to perform 
 the duties of the grade to which transferred or 
 reappointed and shall take precedence with 
 each other and with other officers of the Marine 
 Corps in such order as may be recommended 
 by a board of marine officers and approved by 
 the Secretary of the Navy: Provided, That all 
 persons who served honorably as officers in the 
 Marine Corps or Marine Corps Reserve on active 
 duty at any time between April 6, 1917, and the 
 date of the passage of this Act and who have 
 been honorably discharged or assigned to 
 
 inactive duty shall be eligible for permanent 
 appointment in the same or a lower rank than 
 that held on discharge or assignment to in- 
 active duty, but not above the rank of captain, 
 to fill vacancies existing or hereby created in 
 the permanent authorized strength of the 
 Marine Corps under the same conditions as 
 those above prescribed for officers now in the 
 service: Provided further, That officers now 
 holding temporary commissions in the Marine 
 Corps and who have had more than ten years' 
 service therein, if not found qualified for per- 
 manent commissions, and who are recom- 
 mended by the board herein pro\ided for, 
 may be appointed warrant officers in the Marine 
 Corps; and the authorized number of warrant 
 olhcers is hereby increased by a number not 
 to exceed fifty to provide for the appointment 
 of the aforesaid officers: Provided further , That 
 all transfers and appointments made in accord- 
 ance with the provisions of this section shall be 
 accomplished by June 30, 1921: Provided fur- 
 ther, That the officers now holding temporary 
 appointments as commissioned officers in the 
 Marine Corps may retain their temporary com- 
 missions until the permanent appointments 
 provided for in the foregoing section shall have 
 been made." (41 Stat., 830, chap. 228.) 
 
 [1920, June 4, sec. 2. Naval reservists, active duty authorized; enroll- 
 ments restricted ; commissioned strength of Navy.] That the Secretary of the 
 Navy is hereby authorized to employ on active duty, with their own consent, 
 members of the Naval Reserve Force in enlisted ratings, the number so employed 
 not to exceed during any fiscal year the average of twenty thousand men: 
 Provided, That the number of naval reservists, so employed on active duty, 
 together with the total number of enlisted men in the Regular Navy, shall not 
 exceed the total enlisted strength of the Navy as authorized by law: Provided 
 further, That such members of the Naval Reserve Force so employed shall 
 serve on active duty for not less than twelve nor more than eighteen months 
 
 1548 
 
Pt. 3. STATUTES AT LARGE. June 4, 1920. 
 
 unless sooner released: Provided further^ That hereafter no person shall be en- 
 rolled in the Naval Reserve Force except for general service: And provided 
 further, That the number of commissioned officers of the line, permanent, tem- 
 porary, and reserve on active duty shall not exceed 4 per centum of the total 
 authorized enlisted strength of the Regular Navy, and the number of staff 
 officers on active duty of whatever kind shall be in the same proportions as 
 authorized by existing law: Provided further, That five hundred reserve officers 
 are also authorized to be employed in the aviation and auxiliary service. — 
 (41 Stat., 834, chap. 228.) 
 
 See act of August 29, 1916 (39 Stat., 587-593), 
 as to the Naval Reserve Force; see note 
 to section 1417, Revised Statutes, as to 
 authorized enlisted strength of the Navy; 
 
 [1920, June 4, sec. 2. Temporary and reserve officers continued on duty.] 
 This provision read as follows: I prescribed, officers of the Naval Reserve Force 
 
 see act of August 29, 1916 (39 Stat., 576- 
 577), as to authorized commissioned 
 strength of the Navy. 
 
 "That, until December 31, 1921, temporary 
 appointments now existing may be continued 
 in force in any grade or rank, not to exceed the 
 number allowed in any grade or rank based 
 upon the total permanent authorized com- 
 missioned strength of the line or of any staff 
 corps; and, within the limitations herein 
 
 may, with their own consent, be continued on 
 active duty ashore or afloat, including three 
 on shore duty in the Historical Section of the 
 Office of Naval Intelligence, who may be re- 
 tained on active duty beyond the age of dis- 
 enrollment but not beyond June 30, 1922. — 
 (41 Stat., 834, chap. 228.) 
 
 [1920, June 4, sec. 2. Permanent Navy not reduced.] That nothing herein 
 shall be construed as reducing the permanent commissioned or enlisted strength 
 of the Regular Navy as authorized by existing law. — (41 Stat., 834, chap. 
 228.) 
 
 [1920, June 4, sec. 2. Retirement of reserve and temporary officers.] That 
 all officers of the Naval Reserve Force and temporary officers of the Navy who 
 have heretofore incuiTcd or may hereafter incur physical disability in line of 
 duty shall be eligible for retirement under the same conditions as now provided 
 by law for officers of the Regular Navy who have incurred physical disability 
 in line of duty.— (41 Stat., 834, chap. 228.) 
 
 Retirement of officers of the Regular Navy for 
 physical disability is provided for by sec- 
 tions 1448-1457, Revised Statutes; retire- 
 ment of temporary officers was pre\'iously 
 authorized by act of May 22, 1917, section 
 9 (40 Stat., 86); retirement of enrolled 
 members of the Naval Reserve Force after 
 20 years' service, and of transferred mem- 
 bers of the Fleet Naval Reserve after 30 
 
 years' service, was authorized by act of 
 August 29, 1916 (39 Stat., 588 and 591\ as 
 amended bv act of July 1, 1918 (40 Stat., 
 710). 
 By act of July 1, 1918 (40 Stat., 710), it was 
 provided "that no member of the Naval 
 Reserve Force shall be eligible for retire- 
 ment other than for physical disability in- 
 curred in line of duty." 
 
 [1920, June 4, sec. 3. Transfer to permanent Navy of temporary, reserve, and 
 Coast Guard officers; naval personnel credited with Coast Guard service.] That 
 officers holding temporary commissioned and warrant ranks in the Navy and 
 members of the Naval Reserve Force of commissioned and warrant ranks shall 
 be eligible for transfer to an appointment in the permanent grades or ranks in 
 the Navy for wliich they may be found qualified not above that held by them 
 on the date of transfer, but not to exceed a total of one thousand two hundred 
 commissioned officers in the line, of which number five hundred may be appointed 
 from class five, Naval Reserve Flying Corps, with proportionate number in all 
 Staff Corps as now authorized by law, except that the Medical, Dental, and 
 Supply Corps shall be entitled to such additional numbers as are necessary to 
 make up the full quota of officers in those corps, as now authorized by law: 
 
 1549 
 
June 4, 1920. Pi. -i. STATUTES AT LARGE. 
 
 Provided, That officers so appointed to the line of the Navy shall take rank in 
 accordance with their precedence while holding temporary rank, and members' 
 of the Nav^al Reserve Force of commissioned and warrant ranks found qualified 
 for a given rank shall be arranged according to their precedence among them- 
 selves and commissicmed in the permanent service next after the lowest tempo- 
 rary officer who qualifies for the same rank and is appointed in accordance with 
 the provisions of this Act. 
 
 Provided further, That included in the number of transfers and appoint- 
 ments hereinbefore allowed, commissioned officers of the Coast Guard, who have 
 served creditably mider the Navy Department in the War with the German 
 Government, upon suitable application approved by the Secretary of the Navy 
 and the Secretary of the Treasury, may be appointed to a permanent rank or 
 grade in the Navy for which found qualified by a board of naval officers under 
 the provisions of existing law, but not above the rank of lieutenant commander, 
 and shall take such precedence therein as the Secretary of the Navy may deter- 
 mine: Provided fHriher, That for the purposes of computing longevity pay and 
 retirement privileges of officers and enlisted men of the Navy, all creditable 
 service in the Coast Guard and former Revenue-Cutter Service shall be counted. — 
 (41 Stat., 834-835, chap. 228.) 
 
 Temporary appointments were to terminate not 
 
 later than December 31, 1921, in accordance 
 
 with section 2 of this act (41 Stat., 834), set 
 
 forth above. 
 Precedence of all officers transferred under this 
 
 section to the staff corps was to be fixed 
 
 upon recommendation of a board of naval 
 
 officers in accordance with section 4 of this 
 
 act, set forth below, which also limited 
 
 transfers to rank of lieutenant. 
 Coast Guard Service was credited to naval offi- 
 cers for pay purposes by act of May 18, 1920, 
 
 section 11 (41 Stat., 604). 
 
 Qualifications for transfer and appoint- 
 ment. — -No transfer or appointment can be 
 made under this pro\dsion unless the appointee, 
 at the time of such appointment, holds a tem- 
 porary commissioned or warrant rank in the 
 Navy or is a member of the Naval Reserve 
 Force. (File 26521-473, Oct. 24, 1921.) 
 
 As all temporary appointments, if not sooner 
 revoked, will automatically terminate on 
 December 31, 1921, under section 2 of this act 
 (set forth above), that date would be the latest 
 on which temporary officers could ])e appointed 
 to the Navy under "section 3. (File 26521-473, 
 Oct. 24, 1921.) 
 
 [1920, June 4, sec. 4. Commissioned warrant officers with war service, pro- 
 motion of ; precedence of transferred officers ; restriction on permanent rank ; 
 reversion to former status on professional failure.] That in addition to the num- 
 ber of tranfers and appointments hereinbefore allowed, commissioned warrant 
 officers of more than fifteen years' service since date of warrant or date of first 
 appointment as paymaster's clerk, pharmacist or mate, who have creditably 
 served in the war with the German Government in temporary commissioned 
 ranks or grades in the regular Navy, shall be appointed to a permanent rank 
 or grade for which they may be qualified as established and shown by their 
 records of service during their term of service not above the temporary rank or 
 grade held by them at the time of transfer: Provided, That officers so transferred 
 to the line of the Navy shall take rank therein in accordance with their prece- 
 dence while holding temporary rank: Provided further, That all officers so trans- 
 ferred in accordance with sections 3 and 4 of this Act to the staff corps of the 
 Navy shall take precedence with each other and with other officers in the Navy 
 in such order as may be recommended by a board of naval officers and approved 
 by the Secretary of the Navy: Provided further, That no transfers or appoint- 
 ments made in accordance with sections 3 and 4 of tliis Act shall be to a higher 
 grade or rank than lieutenant in the Navy: And provided further. That officers 
 
 1550 
 
Pt. 3. STATUTES AT LARGE. June 4, 1020. 
 
 appointed to the permanent Navy in accordance with the foregoing sections 
 who now hold permanent warrant or permanent commissioned warrant rank 
 in the United States Navy shall, if they thereafter fail professionally on exam- 
 ination for promotion, revert to such permanent warrant or permanent com- 
 missioned warrant status. — (41 Stat., 835, chap. 228.) 
 
 [1920, June 4, sec. 5. Age limits for appointments under preceding sections.] 
 That officers appointed under M\y of the foregoing provisions shall be not more 
 than thirty-five years of age when so appointed to the line of the Navy, Con- 
 struction Corps, or Supply Corps, and not more than forty-three years of age 
 when so appointed to the Corps of Chaplains, or to the Medical, Dental, or 
 Civil Engineering Corps: Provided, That said age limits shall be increased in 
 the cases of officers who have rendered prior service as paymaster's clerks, or 
 as mates, or as warrant or commissioned officers in the naval service to the 
 extent of all prior naval service: Provided further , That officers originally 
 appointed to the Dental Corps above the said age limits shall be eligible for 
 appointment and promotion under this act irrespective of age. — (41 Stat., 
 835-836, chap. 228.) 
 
 [1920, June 4, sec. 5. Statutory requirements for promotion temporarily 
 suspended.] That officers of the line of the Navy who are appointed thereto 
 pursuant to this Act from sources other than the Naval Academy shall not be 
 ineligible for promotion by reason of age as prescribed by the Act of August 29, 
 1916 (Thirty-ninth Statutes, page 579), until they have rendered ten years' 
 service in the grade of lieutenant commander, six years' service in the grade of 
 commander, or eight years' service in the grade of captain, respectively, upon 
 the completion of which service such officers, if then ineligible for promotion 
 by reason of age, shall be retired in accordance with said Act: And provided 
 further, That until June 30, 1923, promotions to lieutenant (junior grade) and 
 lieutenant may be made without regard to length of service: And provided 
 further. That until June 30, 1923, officers of the permanent Navy who have 
 served satisfactorily during the war with the German Government in a tem- 
 porary grade or rank shall be eligible under the provisions of existing law for 
 selection for promotion or for promotion to the same permanent grade or rank 
 without regard to statutory requirements other than age and professional and 
 physical examination. — (41 Stats., 836, chap. 228.) 
 
 [1920, June 4, sec. 6. Temporary appointments in lower grades ; precedence.] 
 
 This provision read as follow^s: 
 "That in making reductions in rank as may 
 be required by this Act, officers holding tem- 
 porary appointments may be given temporary' 
 
 appointments in lower grades, and officers so 
 appointed shall take precedence from the 
 dates of their original appointments in such 
 lower grades." (41 Stat., 836, chap. 228.) 
 
 [1920, June 4, sec. 6. Bonus and travel pay on extension of enlistment or 
 transfer to another branch of naval service.] That in case any enlisted man or 
 enrolled man who, since the 11th day of November, 1918, has been or hereafter 
 shall be discharged from any branch or class of the naval service for the purpose 
 of reenlisting in the Navy or Marine Corps or heretofore has extended or here- 
 after shall extend his enlistment therein, he shall be entitled to the payment of 
 the .S60 bonus provided in section 1406 of the Act entitled "An Act to provide 
 revenue, and for other purposes," approved February 24, 1919, and to travel 
 
 1551 
 
June 4, 1920. Pt. S. STATUTES AT LARGE. 
 
 pay as authorized in section 3 of the Act entitled ''An Act permitting any 
 person wlio has served in the United States Army, Navy, or Marine Corps in the 
 present war to retain his imiform and personal equipment and to wear the same 
 under certain conditiojis," approved February 28, 1919: Provided, That only 
 one bonus shall be paid to the same person. — (41 Stat., 836, chap. 228.) 
 
 The act of February 24, 1919, section 1406 (40 
 Stat., 1151), was temporary legislation, 
 providing for payment of $(50 bonus to men 
 discharged from the military or naval forces 
 or, in the case of reservists, released from 
 active duty. See note to section 1569, 
 Revised Statutes, under "24. Sixty dollar 
 bonus on discharge." 
 
 The act of February 28, 1919, section 3 (40 
 Stat., 1203), reenacted with amendments, 
 section 126 of an act approved June 3, 1916 
 
 (39 Stat., 217). See the latter act and note 
 thereto; see also note to section 1569, 
 Revised Statutes, under "20. Mileage and 
 transportation on discharge." 
 Above section construed as temporary. 
 — Section 6 of the act of June 4, 1920, above set 
 forth, was held by the Comptroller of the Treas- 
 ury to apply only to men who were in the Navy 
 or Marine Corps on November 11, 1918, and to 
 be inapplicable to anv enlistment accomplished 
 after that date. (27"Comp. Dec, 32, 39, 305.) 
 
 [1920, June 4, sec. 7. Term of enlistment; grades and ratings established.] 
 That hereafter enlistments in the Navy and in the Marine Corps may be for terms 
 of two, three, or four years, and all laws now applicable to four-year enlistments 
 shall apply, under such regulations as may be prescribed by the Secretary of 
 the Navy, to enlistments for a shorter period with proportionate benefits upon 
 discharge and reenlistment : Provided, That hereafter the Secretary of the Navy 
 is authorized, in his discretion, to establish such grades and ratings as may be 
 necessary for the proper administration of the enlisted personnel of the Navy 
 and Marine Corps.— (41 Stat., 836, chap. 228.) 
 
 See notes to sections 1418, 1569, 1573, and 1608, Revised Statutes. 
 
 [1920, June 4, sec. 8. Unauthorized wearing of uniform.] That section 125 of 
 the Act entitled "An Act for making further and more effectual provisions for 
 the national defense, and for other purposes," approved June 3, 1916, shall 
 hereafter be in full force and effect as originally enacted, notwithstanding any- 
 thing contained in the Act entitled "An Act permitting any person who has 
 served in the United States Army, Navy, or Marine Corps in the present war to 
 retain his uniform and personal equipment and to wear the same under certain 
 conditions," approved February 28, 1918: Provided, That the words ''or the 
 Secretary of the Navy" shall be inserted inmaediately after the words "the 
 Secretary of War" wherever those words appear in section 125 of the Act 
 approved June 3, 1916, hereinbefore referred to. — (41 Stat., 836, chap. 228.) 
 
 See act of June 3, 1916, section 125 (39 Stat., 
 
 216-217), and note thereto. 
 The reference in the above section to the act of 
 
 "February 28, 1918," was apparently 
 intended to mean the act of February 28, 
 1919 (40 Stat., 1202-1203). 
 
 [1920, June 4, sec. 9. Naval Reserve Force, withholding retainer pay for cause ; 
 active service requirements. Fleet Naval Reserve.] That hereafter the Secretary 
 of the Navy may, in his discretion, withhold any part or all of the retainer pay 
 which may be due a member of the Naval Reserve Force where such members 
 fail to perform such duty as may be prescribed by law for the maintenance of 
 the efRciency of the Naval Reserve Force : Provided, That any money so withheld 
 shall be credited to the appropriation for organizing and administering the 
 Naval Reserve Force to be used for any purpose that the Secretary of the Navy 
 may consider proper to increase the efficiency of the Naval Reserve Force: 
 Provided further , That hereafter the minimum amount of active service required 
 for the maintenance of the efficiency of the Fleet Naval Reserve shall be the same 
 as for the Naval Reserve.— (41 Stat., 837, chap. 228.) 
 
 1552 
 
Pt. 3. STATUTES AT LARGE. 
 
 June 5, 1920. 
 
 See act of August 29, 1916 (39 Stat., 587-593), 
 and note to section 1556, Re\ised Statutes, 
 under "37. Naval Reserve Force"; see also 
 
 provision in this act (41 Stat., 824) set forth 
 above, as to withholding retainer pay. 
 
 [1920, June 4, sec. 10. Age limits for promotion temporarily deferred. 
 
 ] 
 
 This section read as follows: 
 
 ' 'That the age limits for promotion by selec- 
 tion, which, under existing law, will become 
 effective on June 30, 1920, are hereby deferred 
 until June 30, 1921, in the cases only of those 
 
 officers who may request such deferment." 
 (41 Stat., 837, Chap. 228.) 
 
 It temporarily modified the act of August 
 29, 1916 (39 Stat., 579). 
 
 [1920, June 5. Titles of Coast Guard Officers.] Titles of commissioned officers 
 of the Coast Guard are hereby changed as follows: Senior captain to commander, 
 captain to lieutenant commander, first lieutenant to lieutenant, second lieu- 
 tenant to lieutenant junior grade, third lieutenant to ensign, captain of engineers 
 to lieutenant commander (engineering) , first lieutenant of engineers to lieutenant 
 (engineering), second lieutenant of engineers to lieutenant, junior grade (engi- 
 neering), and third lieutenant of engineers to ensign (engineering): Provided, 
 That all laws applicable to the titles hereby abolished in the Coast Guard shall 
 apply to the titles hereby established. — (41 Stat., 879, chap. 235.) 
 
 See note to section 1492, Revised Statutes. 
 
 [1920, June 5. Hauling for Government in District of Columbia.] Hereafter 
 the Secretary of the Interior may have sand, gravel, stone, and other material 
 hauled for the municipal government of the District of Columbia and for 
 branches of the Federal service in the District of Columbia, whenever it may be 
 practicable and economical to have such work performed by using trucks of the 
 Government fuel yards not needed at the time for the hauling of fuel. Payment 
 for such work shall be made on the basis of the actual cost to the Government fuel 
 yards.— (41 Stat., 913, chap. 235.) 
 
 [1920, June 5. Advance deliveries of Government fuel, District of Columbia.] 
 Hereafter the Secretary of the Interior is authorized to deliver, durmg the 
 months of April, May, and June of each year, to all branches of the Federal 
 service and the municipal government in the District of Columbia, such quan- 
 tities of fuel for their use during the following fiscal year as it may be prac- 
 ticable to store at the points of consumption, payment therefor to be made 
 by these branches of the Federal service and municipal government from 
 their applicable appropriations for such fiscal year. — (41 Stat., 913, chap. 235.) 
 
 See acts of July 1, 1918 (40 Stat., 672-673), and July 11, 1919 (41 Stat., 148). 
 
 [1920, June 5, sec. 3. Annual report, Government buildings. District of 
 Columbia.] That hereafter it shall be the duty of the head of each department 
 and independent establishment of the Government to submit to Congress 
 annually in the Book of Estimates, a statement giving for each of the Govern- 
 ment-owned buildings in the District of Columbia under their respective juris- 
 diction the following information for the preceding fiscal year: The location 
 and valuation of each building, the purpose or purposes for which used, and the 
 cost of care, maintenance, upkeep, and operation thereof per square foot of 
 floor space. — (41 Stat., 945, chap. 235.) 
 
 See notes to sections 429-430, Revised Statutes. 
 
 As to buildings rented in District of Columbia, 
 
 see acts of July 16, 1892 (27 Stat., 199), 
 
 May 1, 1913, section 3 (38 Stat., 3), and 
 May 29, 1920, section 7 (41 Stat., 691). 
 
 1553 
 
June 5, 1920. Ft. S. STATUTES AT LARGE. 
 
 [1920, June 6, sec. 7. Typewriters, restriction on sale or exchange.] Here- 
 after no dopartmont or t)ther Government establishment shall dispose of any 
 t^'pewriting machines by sale, exchange, or as part payment for another type- 
 writer, that has been used less than three years. — (41 Stat., 947, chap. 235.) 
 
 A somewhat different provision on this subject 
 was contained in act of May 29, 1920, 
 section 4 (41 Stat., 689); see also act of 
 
 March 3, 1921 (41 Stat., 126.5-1266). 
 See act of March 4, 1915, section 5 (38 Stat., 
 1161). 
 
 [1920, June 6. Aerial operations, jurisdiction of Army and Navy defined.] 
 That hereafter the Army Air Service shall control all aerial operations from 
 land bases, and Naval Aviation shall have control of all aerial operations attached 
 to a fleet, including shore stations whose maintenance is necessary for operation 
 connected with the fleet, for construction and experimentation and for the 
 training of personnel. — (41 Stat., 954, chap. 240.) 
 
 See act of August 29, 1916 (39 Stat., 582). 
 
 [1920, June 6. Transportation of disabled sailors, marines, etc., on fur- 
 lough ; reduced rates.] The Secretary of War and the Secretary of the Navy, 
 under such regulations and restrictions as they may provide, are hereby author- 
 ized to issue to all wounded and otherwise disabled soldiers, sailors, or marines 
 under treatment in any Army, Navy, or other hospital, w^ho are given fur- 
 loughs at any time, a furlough certificate, which certificate shall be signed by 
 the commanding ofiicer at such hospital. This furlough certificate w^hen 
 presented by such furloughed soldier, sailor, or marine to the agent of any 
 railroad or steamship company over whose lines said soldier, sailor, or marine 
 may travel to and from his home during the furlough period shall entitle said 
 soldier, sailor, or marine to purchase a ticket from the point of departure 
 to point of destination and return at the rate of 1 cent per mUe, and on pres- 
 entation of such certificate on which such ticket has been issued the railroad 
 or steamship company issuing such ticket shall be entitled to receive from the 
 Treasury of the United States the difference between the amount paid for such 
 ticket at the rate of 1 cent per mile and the regular scheduled rate for such 
 ticket. The sum of S250,000, or so much thereof as may be necessary, is hereby 
 appropriated, out of any funds in the Treasury not otherwise appropriated, 
 for the purpose of carrying out the provisions of this paragraph. — (41 Stat., 
 975-976, chap. 240.) 
 
 [1920, June 5. Sale of subsistence stores, etc., to discharged persons under 
 Public Health treatment.] That hereafter honorably discharged officers and 
 enlisted men of the Army, Navy, or ]\Iarine Corps who are being cared for and 
 are receiving medical treatment from the Public Health Service shall, while 
 undergoing such care and treatment, be permitted to purchase subsistence 
 stores and articles of other authorized supplies, except articles of the uniform, 
 from the Army, Navy^, and Marine Corps at the same price as charged the 
 officers and enlisted men of the Army, Navy, and Marine Corps. — (41 Stat., 
 976, chap. 240.) 
 
 See act of March 4, 1913 (37 Stat., 909), and references thereunder. 
 
 [1920, June 5. Development of merchant marine for service as a naval auxil- 
 iary.] That it is necessary for the national defense and for the proper growth 
 of its foreign and domestic commerce that the United States shall have a mer- 
 
 1554 
 
PL 3. STATUTES AT LARGE. June 5, 1920- 
 
 chant marine of the best equipped and most suitable types of vessels sufficient 
 to carry the greater portion of its commerce and serve as a naval or military 
 auxiliary in time of war or national emergency, ultimately to be owned and op- 
 erated privately by citizens of the United States; and it is hereby declared to 
 be the policy of the United States to do whatever may be necessary to develop 
 and encourage the maintenance of such a merchant marine, and, in so far as 
 may not be inconsistent with the express provisions of this Act, the United 
 States Shipping Board shall, in the disposition of vessels and shipping property 
 as hereinafter provided, in the making of rules and regulations, and in the admin- 
 istration of the shipping laws keep always in view this purpose and object as 
 the primary end to be attained. — (41 Stat., 988, chap. 250.) 
 
 Seeact of March 3, 1891, section 4 (26 Stat., 831), mail vessels, and section 9 (26 Stat., 832), 
 
 as to construction of ocean mail vessels as to the taking of such vessels for use by 
 
 with particular reference to their prompt the United States; see also acts of Sep- 
 
 conversion into auxiliary cruisers; see also tember 7, 1916, section 10 (39 Stat., 731), 
 
 section 7 of the same act (26 Stat., 832), as and March 4, 1917 (39 Stat., 1192-1193). 
 to detail of naval officers for duty on ocean 
 
 [1920, June 5, sec. 17. Transfer of docks, etc., from Shipping Board to Navy 
 Department, etc.] That the board is authorized and directed to take over on 
 January 1, 1921, the possession and control of, and to maintain and develop, 
 all docks, piers, warehouses, wharves and terminal equipment and facilities, 
 including all leasehold easements, rights of way, riparian rights and other rights, 
 estates and interests therein or appurtenant thereto, acquired by the President 
 by or under the Act entitled "An Act making appropriations to supply urgent 
 deficiencies in appropriations for the fiscal year ending June 30, 1918, and prior 
 fiscal years, on account of war expenses, and for other purposes," approved 
 March 28, 1918. 
 
 The possession and control of such other docks, piers, warehouses, wharves 
 and terminal equipment and facilities or parts thereof, including all leasehold 
 easements, rights of way, riparian rights and other rights, estates or interests 
 therein or appurtenant thereto which were acquired by the War Department 
 or the Navy Department for military or naval purposes during the war emer- 
 gency may be transferred by the President to the board whenever the President 
 deems such transfer to be for the best interests of the United States. 
 
 The President may at any time he deems it necessary, by order setting out 
 the need therefor and fixing the period of such need, permit or transfer the pos- 
 session and control of any part of the property taken over by or transferred to 
 the board under this section to the War Department or the Navy Department 
 for their needs, and when in the opinion of the President such need therefor 
 ceases the possession and control of such property shall revert to the board. 
 None of such property shall be sold except as may be hereafter provided by 
 law.— (41 Stat., 994, chap. 250.) 
 
 [1920, June 5. Deficient midshipmen, reexamination and special instruction 
 required.] That until otherwise provided by law no midshipman found defi- 
 cient at the close of the last and succeeding academic terms shall be involun- 
 tarily discontinued at the Naval Academy or in the service unless he shall fail 
 upon reexamination in the subjects in which found deficient at an examination 
 to be held at the beginning of the next and succeeding academic terms, and the 
 Secretary of the Navy shall provide for the special instruction of such mid- 
 1555 
 
June 5, 1920. PL 3. STATUTES AT LARGE. 
 
 shipmcn in the subjects in which found deficient during the period between 
 academic terms. — (41 Stat., 1028, chap. 253.) 
 
 See note to section 1519, Revised Statutes, under "Act of June 5, 1920, construed." 
 
 [1920. June 5, Annual report of Government publications.] Hereafter the 
 head of each department and independent estabhshment of the Government 
 shall on the first day of each regular session submit in writing a report to the 
 Congress giving the aggregate number of the various publications it has issued 
 iluring the preceding fiscal year giving same in detail, and shall also report the 
 cost of paper used for such publications, cost of printing and the cost of prepara- 
 tion of each publication, and the number of each which has been distributed. — 
 (41 Stat., 1037, chap. 253.) 
 
 See act of January 12, 1895, section 19 (28 Stat., 603); see also notes to sections 429-430, 
 Revised Statutes. 
 
 [1920, June 5. Naval officers authorized to accept offices in South America.] 
 That the President of the United States be, and he is hereby, authorized, upon 
 application from the foreign Governments concerned, and whenever in his dis- 
 cretion the public interests require, to detail officers of the United States naval 
 service to assist the Governments of the Republics of South America in naval 
 matters: Provided, That the officers so detailed be, and they are hereby, author- 
 ized to accept offices from the Government to which detailed with such com- 
 pensation and emoluments therefor as may be first approved by the Secretary 
 of the Navy: Provided further, That while so detailed such officers shall receive, 
 in addition to the compensation and emoluments allowed them by such Govern- 
 ments, the pay and allowances of their rank in the United States naval service, 
 and they shall be entitled to the same credit while so detailed for longevity, 
 retirement, and for all other purposes that they would receive if they were serv- 
 ing with the United States naval service. — (41 Stat., 1056, chap. 261.) 
 
 See joint resolution of October 13, 1914 (38 Stat., 780), and references thereunder. 
 
 [1920, June 5. Operation of Government radio stations.] That all land, 
 ship, and airship radio stations, and all apparatus therein owned by the United 
 States may be used by it for receiving and transmitting messages relating to 
 Government business, compass reports, and the safety of ships. * * * 
 
 Sec. 3. That all stations owned and operated by the Government, except 
 as herein otherwise provided, shall be used and operated in accordance with the 
 provisions of the Act of Congress entitled "An Act to regulate radio communica- 
 tion," approved August 13, 1912.— (41 Stat., 1061, chap. 269, Pub. Res. No. 
 48.) 
 
 Section 2 of this resolution provided as follows : 
 "That the Secretary of the Navy is 
 hereby authorized, under terms and condi- 
 tions and at rates prescribed by him, which 
 rates shall be just and reasonable, and 
 which, upon complaint, shall be subject 
 to review and revision by the Interstate 
 Commerce Commission, to use all radio 
 stations and apparatus, wherever located, 
 owned by the United States and under the 
 control of the Navy Department — (a) for 
 the reception and transmission of press 
 messages offered by any newspaper pub- 
 lished in the United States, its Territories 
 
 or possessions, or published by citizens of 
 the United States in foreign countries, or 
 by any press association of the United 
 States, and (b) for the reception and trans- 
 mission of private commercial messages: 
 Provided, That the rates fixed for the 
 reception and transmission of commercial 
 messages, other than press messages, shall 
 not be less than the rates charged by 
 privately owned and operated stations 
 for like messages and service: Provided 
 further, That the right to use such stations 
 for any of the purposes named in tliis 
 section shall terminate and cease as be- 
 
 1556 
 
PL 3, STATUTES AT LARGE. Mar. 3, 1921. 
 
 tween countries or localities or between 
 any locality and privately operated sliips, 
 whenever privately owned and operated 
 stations are capable of meeting the normal 
 communication requirements between 
 such countries or localities or between any 
 locality and privately operated ships, and 
 
 the Secretary of Commerce shall have 
 notified the Secretary of the Navy thereof, 
 and all rights conferred by this section 
 shall terminate and cease in any event 
 two years from the date this resolution 
 
 See act of August 13, 1912 (37 Stat., 302-308). 
 
 [1921, Mar. 1. Naval supply account fund established.] That deficiencies 
 under appropriations for the naval establishment for the fiscal year 1920 and 
 prior years shall be charged to a naval supply account fund, which is hereby 
 established and to which shall be transferred the unexpended balances of annual 
 appropriations for the naval establishment for the fiscal years 1919 and 1920, 
 after two years from the expiration of the fiscal year for which made, and, out 
 of any funds in the Treasury not otherwise appropriated, an amount equal to 
 the value of all stores in the naval supply account on March 31, 1921, prelimi- 
 nary adjustments on account of stores to be made upon the certificate of the 
 Secretary of the Navy that stores to the value certified are on hand; and from 
 and after said date the naval supply account fund shall be charged with the 
 cost of all stores procured for and credited with the value of all issues or sales 
 made from the naval supply account, necessary adjustments being made on 
 account of outstanding contracts or orders. — (41 Stat., 1169, chap. 89.) 
 
 See act of March 4, 1911 (36 Stat., 1279), and note thereto, as to the naval supply account. 
 
 [1921, Mar. 1. Naval supply account; prices of material; losses; specific 
 appropriations.] The prices at which material is to be expended from the 
 naval-supply-account shall be fixed by the Paymaster General of the Navy, 
 subject to the approval of the Secretary of the Navy, and materials purchased 
 during the war shall be issued at reduced prices in all cases appropriate, such 
 differences in values and losses to be charged to the respective funds; and 
 hereafter no charges on this account shall be made to naval appropriations. — 
 
 (41 Stat, 1170, chap. 89.) 
 
 See Act of March 4, 1911 (36 Stat., 1279), and note thereto. 
 
 [1921, Mar. 3. Typewriters and computing machines, issued for exchange; 
 repairs in District of Columbia.] That typewriters and computing machines 
 transferred to the General Supply Committee as surplus, where such machines 
 have become unfit for fm-ther use, may, in the discretion of the Secretary of 
 the Treasm-y, be issued to other Government departments and establishments 
 at exchange prices quoted in the current general schedule of supphes or sold 
 commercially provided the price obtained is in excess of the exchange prices. — 
 (41 Stat., 1265-1266, chap. 124.) 
 
 Repairs to typewriting machines (except bookkeeping and billing ma- 
 chines) in the Government service in the District of Columbia may be made 
 at cost by the General Supply Committee, payment therefor to be effected by 
 transfer and counter warrant, charging the proper appropriation and crediting 
 the appropriation ''General Supply Committee, Transfer of Office IVIaterial, 
 Supplies, and Equipment."— (41 Stat., 1266, chap. 124.) 
 
 See Acts of June 5,1 920, section 7 (41 Stat., 947), and March 4, 1915,section 5 (38 Stat., 1161). 
 
 [1921, Mar. 3. War with Germany and Austria Hungary, date of termina- 
 tion for certain purposes.] That in the interpretation of any provision relating 
 to the duration or date of the termination of the present war or of the present 
 
 1557 
 
Mar. 3, 1921. PL .?. STATUTES AT LARGE. 
 
 or existing emergency, meaning thereby the war between the Imperial German 
 Government and the Imperial and Royal Austro-Himgarian Government and 
 the Government and people of the United States, in any Acts of Congress, 
 joint resolutions, or proclamations of the President containing provisions 
 contingent upon the duration or the date of the termination of such war or of 
 such present or existing emergency, the date when this resolution becomes 
 effective shall be construed and treated as the date of the termination of the 
 war or of the present or existing emergency, notwithstanding any provision 
 in any Act of Congress or joint resolution providing any other mode of deter- 
 mining the date of such termination. And any Act of Congress, or any provi- 
 sion of any such Act, that by its terms is in force only during the existence of a 
 state of war, or during such state of war and a limited period of time thereafter, 
 shaU be construed and administered as if such war between the Governments 
 and people aforesaid terminated on the date when this resolution becomes 
 effective, any provision of such law to the contrary notwithstanding; excepting, 
 however, from the operation and effect of this resolution the following Acts 
 and proclamations, to wit: Title 2 of the Act entitled "The Food Control and 
 District of Columbia Rents Act," approved October 22, 1919 (Forty-first 
 Statutes, page 297), the Act known as the Trading with the Enemy Act, ap- 
 proved October 6, 1917 (Fortieth Statutes, page 411), and all amendments 
 thereto, and the First, Second, Third, and Fourth Liberty Bond Acts, the 
 Supplement to the Second Liberty Bond Act, and the Victory Liberty Loan 
 Act; titles 1 and 3 of the War Finance Corporation Act (Fortieth Statutes, 
 page 506) as amended by the Act approved March 3, 1919 (Fortieth Statutes, 
 page 1313), and Public Resolution Numbered 55, Sixty-sixth Congress, entitled 
 ''Joint resolution directing the War Finance Corporation to take certain action 
 for the relief of the present depression in the agricultural sections of the country, 
 and for other purposes," passed January 4, 1921; also the proclamations 
 issued under the authority conferred by the Acts herein excepted from the 
 effect and operation of this resolution: Provided, however, That nothing herein 
 contained shall be construed as effective to terminate the militarv status of 
 any person now in desertion from the military or naval service of the LTnited 
 States, nor to terminate the liability to prosecution and punishment under the 
 selective service law, approved May 18, 1917 (Fortieth Statutes, page 76), of 
 any person who failed to comply with the provisions of said Act, or of Acts 
 amendatory thereof: Provided further. That the Act entitled ''An Act to 
 amend section 3, title 1, of the Act entitled 'An Act to punish acts of inter- 
 ference with foreign relations, the neutrality, and the foreign commerce of the 
 United States, to punish espionage, and better to enforce the criminal laws of 
 the United States, and for other purposes,' approved June 15, 1917 (Fortieth 
 Statutes, page 217), and for other purposes," approved May 16, 1918 (Fortieth 
 Statutes, page 553), be, and the same is hereby, repealed, and that said section 
 3 of said Act approved June 15, 1917, is hereby revived and restored with the 
 same force and effect as originally enacted. 
 
 Nothing herein contained shall be held to exempt from prosecution or to 
 relieve from punishment any offense heretofore committed in violation of any 
 Act hereby repealed or which may be committed while it remains in force as 
 herein provided.— (41 Stat., 1359-1360, chap. 136, Pub. Res. No. 64.) 
 
 1558 
 
Pi. 3. STj\TUTES at large. Mar. 4, 1921. 
 
 terms to "time of peace." (32 Op. Atty. Gen., 
 505.) 
 
 By said resolution Congress meant to declare 
 a condition of peace to exist as to the laws of 
 and governing the United States; hence all 
 laws and regulations depending for their force 
 upon a state of war or emergency thereby ceased 
 to be of further force. (32 Op. Atty. Gen., 505, 
 listing certain acts relating to the Navy which 
 were affected by the above resolution.) 
 
 Navy statutes affected by resol'.il on 
 terminating war-time legfislation. — l^his 
 resolution affects statutory pro\isions relating 
 to the Navy wliich in general terms apply to 
 any emergency or national emergency and 
 which included, without specific reference 
 thereto, the emergency incident to the war with 
 Germany. (32 Op. Atty. Gen., 505.) 
 
 Said resolution likewise affects statutory 
 provisions relating to the NaAy which relate in 
 
 [1921, Mar. 4. Transfer of lands, etc., to the Public Health Service.] In 
 carrying out the purposes herein authorized the President is authorized and 
 empowered, in his discretion, to assign for use of the Public Health Service, 
 under the jurisdiction of the Secretary of the Treasury, such lands or buildings 
 now owned or leased by the United States, not including property under the 
 jurisdiction of the National Home for Disabled Volunteer Soldiers, which, in 
 his judgment, can be used more efficiently for the care of patients of the Bureau 
 of War Risk Insurance * * *.— (41 Stat., 1365, chap. 156.) 
 
 See act of March 3, 1919, section 3 (40 Stat., 1303.) 
 
 [1921, Mar. 4. Arlington Memorial Amphitheater, memorials and entomb- 
 ments in.] That a commission is hereby created, to be composed of tlie Secre- 
 tary of War and the Secretary of the Navy, which shall submit annually to the 
 President, who shall transmit the same to Congress by the first IVIonday in 
 December, recommendations as to what, if any, inscriptions, tablets, busts, or 
 other memorials shall be erected, and what, if any, bodies of deceased members 
 of the Army, Navy, and Marine Corps shall be entombed during the next ensu- 
 ing year within the Arlington Memorial Amphitheater, in the .Arlington National 
 Cemetery, Virginia: Provided, That no memorial shall be placed and no body 
 shall be interred in the grounds about the Arlington Memorial Amphitheater 
 within a distance of two hundred and fifty feet from the said memorial. 
 
 Sec. 2. That the Secretary of War shall be the chairman of the said com- 
 mission and the depot quartermaster of the Army in Washington shall be its 
 executive and disbursing officer. 
 
 Sec. 3. That no inscription, tablet, bust, or other memorial shall be erected 
 nor shall any body be entombed within the Arlington Memorial Amphitheater 
 unless specifically authorized in each case by Act of the Congress. 
 
 Sec. 4. That no inscription, tablet, bust, or other memorial as herein pro- 
 vided for shall be erected to commemorate any person who shall not have 
 rendered conspicuously distinguished service in the United States Army, Navy, 
 or Marine Corps, nor shall the body of any such person be entombed in the 
 Arlington Memorial Amphitheater; nor shall any such memorial be erected or 
 any body be entombed therein within ten years after the date of the death of 
 the person so to be commemorated, except as heretofore or hereafter authorized 
 by Congress. 
 
 Sec. 5. That the character, design, and location of any such inscriptions, 
 tablets, busts, or other memorials when authorized as herein provided shall be 
 subject to the approval of the commission herein created, which shall in each 
 case obtain the advice of the Commission of Fine Arts. — (41 Stat., 1440, chap. 
 169.) 
 
 See section 4878, Revised Statutes, as to 
 
 of March 3, 1909 (35 Stat., 773), as to 
 
 burials in national cemeteries; and see act memorials in Naval Academy chapel. 
 
 1559 
 
Mar. 4, 1921. 
 
 PL S. STATUTES 4 T LARGE. 
 
 The Conunission of Fine Arts was created 
 by act of May 17, 11)10 (3G Stat., 371), which 
 read as follows: 
 
 •'That a jicnnancnt Conimiasion of Fine Arts 
 is hereby created to be composed of seven well- 
 qualified judges of the fine arts, who shall be 
 aji])ointed by the President, and shall serve for 
 a i)eriod of four years each, and until their 
 successors are appointed and qualified. The 
 President shall have authority to lill all va- 
 cancies. It shall be the duty of such com- 
 mission to ad\i8c upon the location of statues, 
 fountains, and monuments in the ])ublic 
 squares, streets, and parks of the District of 
 Columbia, and upon the selection of models 
 for statues, fountains, and monuments erected 
 under the authority of the United States and 
 upon the selection of artists for the execution 
 of the same. It shall be the duty of the of- 
 ficers charged by law to determine such ques- 
 tions in each case to call for such advice. 
 The foregoing provisions of this act shall not 
 apply to the Capitol building of the United 
 States and the building of the Library of Con- 
 gress. The commission shall also advise gen- 
 erally upon questions of art when required to 
 do so by the President, or by any committee of 
 
 eitl ii- House of Congress. Said commission 
 shal* have a secretary and such other assistance 
 as the commission may authorize, and the 
 members of the commission shall each be paid 
 actual expenses in going to and returning from 
 Washington to attend the meetings of said com- 
 mission and while attending the same. 
 
 "Sec. 2. That to meet the expenses made 
 necessary by this Act an expenditure of not 
 exceeding ten thousand dollars a year is hereby 
 authorized." 
 
 By Executive Order of July 28, 1921 (No. 
 3524), it was provided as follows: 
 
 "It is hereby ordered that essential matters 
 relating to the design of medals, insignia and 
 coins, produced by the executive departments, 
 also the designs of statues, fountains and monu- 
 ments, and all important plans for parks and 
 all public buildings, constructed by executive 
 departments or the District of Columbia, which 
 in any essential way affect the appearance of 
 the city of Washington, or the District of 
 Columbia, shall be submitted to the Com- 
 mission of Fine Arts for advice as to the merits 
 of such designs before the executive officer 
 having charge of the same shall approve there- 
 of." 
 
 1500 
 
INDEX. 
 
 [See also Analytical Index to the Constitution, pp. 143-181., 
 
 ABANDONED: 
 
 Applications for patents, 1105, 1494, 1501. 
 Office; acquiescence in illegal dismissal, 826, 989. 
 ABBREVIATION: 
 
 Signature of public officer, 351. 
 ABETTING: 
 
 See Accessories; Articles for the Government of the Navy; 
 
 Crimes. 
 Combination against commanding officer, Navy, 984. 
 Making or signing of a false muster, 985. 
 ABSENCE: 
 
 See Absence without leave; Leave of absence. 
 Accused not present at trial, 126, 1030. 
 Candidate for promotion; examining board's proceed- 
 ings illegal, 723, 728. 
 Chiefsofbm«aus,213, 214, 466, 1222, 1224, 1261, 1280, 
 
 1284, 1418. 
 Disbursing clerks; substitute, 1315, 1316. 
 From command; power of officer to convene courts- 
 martial during, 1015. 
 command without leave, 988. 
 ship; pay, 882, 8.S3. 
 
 United States; statute of limitations, 1060. 
 Heads of departments, 194, 212-217, 422. 
 Judge Advocate General of the Navy, 1418. 
 Members of general court-martial, 1029-1033. 
 Misconduct causing; officers and enhsted men, Navy 
 
 and Marine Corps, 825, 1436. 
 Naval officers imprisoned by civil authorities; dropped 
 
 from rolls, 1503. 
 Pay of officers, Marine Corps, during, 941. 
 
 Navy, during, 823-825. 
 Secretary of the Navy, 212-217; 1401. 
 Statute of limitations; effect on, 1057, 1058, 1060, 1062. 
 Temporary; quarters and commutation, 701. 
 Vacancy not created by, 473. 
 
 Witnesses; additional charges tried on return of, 1025. 
 admission as to what they would testify, 132, 
 
 1055. 
 procured by accused, 132. 
 ABSENCE WITHOUT LEAl^E: 
 
 Forfeiture of pay; any person in service of United 
 States, 1297. 
 enlisted men, 869-871. 
 From station or duty; punishment, 985. 
 Leaving station before being regularly relieved, pun- 
 ishment. Navy, 979. 
 Member of court-martial; penalty dismissal, 1031. 
 Officer; absenting himself from command without 
 leave, 988. 
 dropped from rolls for, 1011, 1012, 1503. 
 whose resignation has not been accepted, 989 
 Pay, naval officer, 825. 
 
 Naval Reser^-e Force, 814. 
 Period of arrest by civil authorities, 589. 
 not credited as a period of service, 588. 
 ABSTRACT OF TITLE: 
 Exjjcnse of securing, 294. 
 
 ACADEMIC BOARD: 
 
 Naval Academy, 751, 753, 754. 
 ACADEMIES: 
 
 See Military Academy; Naval Academy. 
 Details of naval officers to educational institutions, 435. 
 ACCEPTANCE: 
 
 Appointment, 96, 100, 207. 
 
 implied resignation of office already held, .529. 
 naval officer; date pay commences, 829. 
 in diplomatic or consular service, 579. 
 Bonds; date effective, 211. 
 
 Foreign medals, decorations, and presents, 75, 76, 1516, 
 1517. 
 offices by naval officers, 75, 1416, 1502, 1556. 
 Pardon, 122. 
 
 Presents from official inferiors, 1073. 
 Promotion, 97, 652, 654. 
 Resignation, 583, 747, 989. 
 
 Vessels under construction; ownership prior to, 773. 
 ACCESSORIES: 
 
 Pimishment of, 1354. 
 ACCOUNTING OFFICERS: 
 
 See Accounts; Claims; Mistake of fact; Mistake of law . 
 -Accounts of navy disbursing officers rendered direct 
 
 to, 1097. 
 Administrative departments delaying transmission of 
 accoimts to, 1226. 
 examination omitted; procedure in auditing, 1226. 
 Advance decisions, 1225. 
 Allowance to owner of lost check, 274. 
 
 to retired enlisted men who resigned to reenlist in 
 higher grade, 1514. 
 Appointment of inspector, weigher, and measurer of 
 fuel; notification to, 1110. 
 without consent of Senate; notification to, 1072. 
 Approval of accounts by heads of departments, 242- 
 
 244, 277. 
 Attorney General's jurisdiction with relation to, 311- 
 
 320. 
 Attorneys' fees not to be deducted in naval cases, 1272. 
 Auditor for the Navy Department; duties of, 1224. 
 Auditors, general pro\'isions relating to 265-274. 
 Certificates of balances; copies sent Secretary of the 
 
 Navy, 1224. 
 Checkages of pay; jurisdiction, 233. 
 Claims allowed; report to Congress, 1193. 
 Commissions or inquiries, accounts not to be allowed 
 
 without special appropriation, 1105. 
 Comptroller, duties of, 263, 264. 
 Conclusive effect of action by, 246-248. 
 Congress not bound by action of, 247. 
 Contracts filed in offices of, 1118. 
 
 for fuel; credit not allowed without certificate, 
 
 1110, 1111. 
 settlements by departments subject to revision, 
 nil. 
 Court of Claims' jurisdiction, where account not acted 
 on by, 1362. 
 
 1561 
 
INDEX. 
 
 ACCOUNTING OFFICERS— Continued. 
 Courts; jurisdiction with relation to, 23.5, 247. 
 Deccsasod personnel. Navy and Marine Corps; settle- 
 ment of accounts, 1305, 1306. 
 Decisions of auditors re\-ised by Comptroller, 1225. 
 of Comptroller; applications for, 1225. 
 
 policy of Navy Department as to requesting, 
 239. 
 Decisions relating to jwwers and jurisdiction of, etc., 
 
 229-257. 
 Deposit of public money required by; failure of dis- 
 bursing officer to make, 1330. 
 Disbursements by Treasurer of the United States, 275. 
 Disbursing officers may obtain advance decision from, 
 
 1225. 
 Effect of action; binding on executive branch of gov- 
 ernment, 225. 
 Enlisted men on vessels sunk or destroyed; payments 
 
 to, 264. 
 Equitable claims, jurisdiction 235. 
 Equity and justice in settling accounts, enlisted men 
 
 on lost vessels, 268. 
 Evidence required by, 244. 
 Form of keeping and rendering accounts and making 
 
 returns, 259, 1224. 
 General account of ad\-ances, adjustment of liabilities 
 
 by, 1184. 
 General provisions relating to, 263-274, 1224-1227. 
 Heads of departments; jurisdiction with relation to, 
 236-244. 
 may obtain advance decision from, 1225. 
 Information; books, papers, etc., open to inspection 
 of, 229. 
 refused by Navy Department, 238, 239. 
 Jurisdiction: can not require pajTnent to be made, 240. 
 cause of naval officer's incapacity, 605. 
 checkages of pay, 233, 234. 
 
 claims for lost or damaged property, naval per- 
 sonnel, 1492-1494. 
 in general, 231, 232. 
 limitations upon, 232. 
 Navy regulation held invalid by, 239, 241, 273, 
 
 838,839. 
 payments of death gratuity in Navy, 233. 
 promotion of civil employee, 242. 
 property accounts, 234, 1223. 
 Secretary of the Na^T with relation to, 198, 236- 
 240; 266, 268, 272, 273, 566, 605, 828, 829, 838, 839, 
 903, 1315, 1514, 1527, 1528. 
 ships' stores profits, 1359. 
 Mandamus proceedings against, 233, 234, 256, 257. 
 Na\^ accounts; auditing of, 266. 
 
 disbursements, by order of superior officer, 
 
 allowed, 266. 
 regulation binding on, 198, 786, 787. 
 Notified of all appointments made by President with- 
 out consent of Senate, 1072. 
 Oaths administered to witnesses by auditors, 274. 
 Orders of Secretary of the Navy; officer disobeying 
 
 can not be relieved of responsibility, 239, 240. 
 Pajrment for effects lost on sunk or captured vessel, 269. 
 Pay, miscellaneous, credited with interest, premiums, 
 
 and exchange, 1222. 
 Property accounts; jurisdiction, 234, 1223. 
 Recess appointments; notification to, 1072. 
 Regulations, Havy, binding on, 241, 273. 
 
 decision as to vaUdity of, not binding, 239. 
 Reopening of accounts; decisions relating to, 248-256. 
 Requisitions for advances of money, 1104, 1225, 1226. 
 Report to Congress of delinquent disbursing officers, 
 1226. 
 
 ACCOUNTING OFFICERS— Continued. 
 
 Revision of auditor's settlements by Comptroller, 1224, 
 
 1225. 
 Secretary of the Navy- 
 Determination binding on; responsibility for loss 
 
 or deficiency, 1527, 1528. 
 Jurisdiction with relation to, 198, 236-240, 266, 268, 
 272, 273, 566, 605, 828, 829, 838, 839, 903, 1315, 
 1514, 1527, 152H. 
 
 To determine when public quarters not available, 
 
 1514. 
 To direct, in fLxing date vessels were lost, 268. 
 settlements by, 266. 
 Secretary of War; jurisdiction with relation to, 240-242. 
 Set off; jurisdiction as to, 244-246. 
 Settlements; effect of accepting payment under, 1225. 
 of auditors conclusive unless re\Tsed by Comj)- 
 troller, 1224. 
 Ships' stores profits to be accounted for to Bureau of 
 
 SuppUes and Accounts, 1359. 
 Status of, 230. 
 Suit against delinquent officer and sureties, 1072, 1097. 
 
 on bonds; statute of limitations, 1199. 
 Suspension of items in accounts for explanation or 
 
 e\'idence, 1225. 
 Temporary appointments, notified of, 1072. 
 UnUquidated claims, jurisdiction, 234. 
 Vessels lost or captured; credits to paymaster, 266. 
 Warrants in settlement of accounts, 276. 
 ACCOUNTS: 
 
 See Accounting officers; Claims; Mistake of fact; Mis- 
 take of law; Naval supply account. 
 Accepting payment under settlements by accounting 
 
 officers: effect of, 1225. 
 Administrative — 
 
 Departments delaying transmission to accounting 
 
 officers, 1226. 
 Examination omitted: auditing of, 1226. 
 regulations governing, 1227. 
 Appropriation for obtaining information from abroad 
 
 and at home, 1417. 
 Approval by head of department; effect of, 242, 243. 
 
 by Secretary of the Navy, 272, 1179, 1189. 
 Armor plants; cost of product; itemized, to be kept, 
 
 1419. 
 Balances- 
 Certified by the auditors conclusive, unless re- 
 vised by Comptroller, 1224, 1225. 
 copy of certificate sent to Secretary of the 
 Navy, 1224. 
 Contract purchases: consular certificate required con- 
 cerning foreign supplies, 1114. 
 Contractors and agents to render for settlement to 
 
 proper department, 1111. 
 Deceased naval personnel; settlement of, 1305, 1306. 
 Deficiency; Secretary of the Na\'y may relieve officers 
 from responsibility, 1527, 1528. 
 suit on bond; statute of limitations, 1199. 
 Delinquency in rendering; money requisitions dis- 
 approved because of, 1226. 
 of officers reported to Congress, 1226. 
 Disbursements by order of superior officer in Navy, 266. 
 Disbursing officers failing to render, as required, 1226, 
 1330. 
 unchanged for three years, 279. 
 Enlisted men; final settlement of; duty of command- 
 ing officer, 995. 
 missing vessels, 268. 
 
 must accompany when sent from ship or trans- 
 ferred to other vessels, 995. 
 
 1562 
 
INDEX. 
 
 ACCOUNTS— Continued. 
 
 Enlisted men sent from ship; commanding offlcer and 
 
 paymaster to sign, 995. 
 Kvidence required by accounting officers, 244. 
 Examination of, by administrative bureau, 1097. 
 Falsification of, punishment, 1170, 1368. 
 Fiscal year, 257, 259. 
 Form of, 259, 1097, 1098, 1224. 
 
 cost of work under naval appropriations, 1365, 1366. 
 Navy Department expenditures, 1 102, 1 103, 
 General account of advances authorized for Navy, 1183. 
 General provisions relating to, 1224-1227. 
 Inspection of, by general inspector of Supply Corps, 
 
 1304. 
 Itemized required, 231, 244. 
 London fiscal agents; receipts for interest, 1222. 
 Miscellaneous receipts, 1095. 
 
 Naval Supply Account; to govern purchase and issue of 
 stores, etc., 1366, 1367. 
 value of stores in, transferred to naval supply 
 account fimd, 1557. 
 Navy- 
 Auditing of, 265, 1224. 
 Department; custody of chiefs of bureaus, 361. 
 
 expenditures; form of, 1102, 1103. 
 Disbursing officers, rendered direct to accounting 
 officers, 1097. 
 Oaths administered to witnesses by auditors, 274. 
 
 who may administer to, 1386. 
 Officers sent from ship to be furnished with, 995. 
 Overhead charges distributed between naval appro- 
 priations, 1398. 
 Payment by Treasurer of United States, 275. 
 Premium on sale of public securities, 1100. 
 Property; audited by Paymaster General of Navy; 
 certificate to accounting officers, 1223. 
 Biu'eau of Supplies and Accounts to keep, 1203. 
 charging lost property to responsible officer, 788. 
 jurisdiction of accounting officers, 234. 
 storekeeper at Naval Academy to render, 1304. 
 Quarterly rendition of, 1215. 
 Receipts from post laundries. Marine Corps, 1531. 
 Reopening of; decisions relating to, 24&-256. 
 "Settle" defined, 233. 
 
 Settlement of claims and demands, 229-257. 
 Siiips' stores profits; audited by Bureau of Supplies 
 
 and Accounts, 1359. 
 Suspension of items by accounting officers for evidence 
 
 or explanation, 1225. 
 Time for rendering, 1097, 1215, 1225, 1226. 
 Travel claims; approval by Secretary of the Navy, 
 
 237, 238. 
 Traveling expense; Secretary of the Navy to determine 
 
 distances, etc., 1315. 
 Vessels lost or captured, 266. 
 
 sunk or destroyed; payments to enlisted men, 
 264. 
 ACCUSED: 
 
 See Courts-martial; Jeopardy; Prisoners; Sentence. 
 Additional charges against; restriction on trying, 1025. 
 Arraignment; waiver of, 126. 
 Arrest, 117, 1025, 1026. 
 
 entitled to charges at time of, 131, 1025. 
 BiU of rights for protection of, 116. 
 Challenge, right of, before court-martial, 131. 
 Change of status; does not divest jurisdiction, 403. 
 Charges against; right to be informed of, 129, 131. 
 
 to be furnished at time of arrest, 131, 1025. 
 Compelling exhibition of his person, not unlawful, 123. 
 Confession by, 123. 
 
 ACCUSED— Continued. 
 
 Consent does not confer jurisdiction on court, 125, 977, 
 1033. 
 
 Counsel, entitled to assistance of, 129, 133. 
 public officers not to accept fees, 1333. 
 
 Defects in charges and specifications waived by, 1045. 
 
 Defense; allowed reasonable time to make, 1025. 
 
 Description of, in charges, 1028. 
 
 Due process of law, protection of, 123. 
 
 Evidence received in absence of, 1030. 
 
 Health; summary court-martial punishment depend- 
 ent upon, 1009. 
 
 Impartial trial, right to, 129, 131. 
 
 Insanity as defense, 1030, 1031. 
 
 Judge Advocate acting as counsel for, 133. 
 must furnish opinions to, 133. 
 
 New trial requested by, 121. 
 
 Offlcer; commutation of quarters, 700. 
 confined to certain limits, 1029. 
 
 Presence of, at trial; proceedings in absence, 68, 126-128. 
 
 Public trial, right to, 129, 130, 1030. 
 
 Retired officer; mileage for travel to court-martial for 
 trial, 658. 
 
 Right to be confronted with witnesses in court-martial 
 cases, 68. 
 
 Self-crtmination, protection, 121, 403. 
 
 Speedy trial, right of, 129, 130. 
 
 Trial after expiration of enlistment, 1057, 1061. 
 
 Waiver of rights and privileges, 121, 132, 1026, 1045, 
 1057, 1058, 1062. 
 
 Witnesses — 
 
 Absence procured by accused, 132. 
 Right to confront , 129, 132. 
 
 process for obtaining, 129, 132, 133. 
 Unable to hear, 126. 
 ACKNOWLEDGMENTS : 
 
 Bonds, 483. 
 
 False, by officer authorized to administer oaths, etc., 
 1323. 
 
 Officers authorized to take, 1072, 1073. 
 
 Powers of attorney; claims against United States , 1093. 
 ACQUIESCENCE: 
 
 Illegal dismissal; effect of, 826. 
 ACQUITTAL: 
 
 See Jeopardy. 
 
 Disapproval of court-martial sentence equivalent to, 
 988. 
 
 Effect of, 988. 
 
 Plea of former acquittal, 119. 
 ACTING OFFICERS: 
 
 Assistant surgeons, 527-530, 675, 802, 1184, 1261. 
 
 Chaplains, 802, 1396. 
 
 Chiefs of bureaus, 213, 214, 466, 1222, 1224, 1261, 1280, 
 1284, 1418. 
 
 Commanding officers, punishments inflicted by, 1005. 
 
 Disbursing clerks, 211, 1315, 1316. 
 
 Ensigns, 799, 1435, 1436, 1438, 1439. 
 
 Governors, Guam and Samoa: certificates as to ac- 
 knowledgments, 1291, 1292. 
 
 Heads of departments, 194, 212-217, 422. 
 
 Judge Advocate General, Navy, 1418. 
 
 Machinists, 1269. 
 
 Master at arms; refusing to receive prisoners or suffer- 
 ing their escape, 985. 
 
 Midshipmen, 739. 
 
 Pay clerks, 1406, 1407. 
 
 PajTnasters, 472, 473, 839. 
 
 Rear admirals, 577, 665. 
 
 Second lieutenants, 1438, 1439. 
 
 Secretary of the Navy, 212-217; 1401. 
 
 54641°— 22- 
 
 -99 
 
 1563 
 
INDEX. 
 
 ACTING OFFICERS— Continued. 
 
 Status of, 525. 
 
 Warrant officers, 525, 794, 803. 
 .\CTIVE OUTY: 
 
 See Naval Jieserve Force; Pay of Naval EstablMment; 
 
 Retired eiilisUd men; Retired officers. 
 Naval officer interned by neutral nation is in status 
 
 of, 892. 
 Naval Reserve Force; confirmation and maiutenanee 
 ofefficiency, 1444, 1445, 1449, 1452, 1453, 1454, 1509. 
 during war or emergency, 1443, 1447, 1452. 
 enlisted ratings, to supply deficiencies in Navy, 
 
 1548, 1549. 
 maintenance of efficiency, Naval Reserve, 1509. 
 officers, in aviation and auxiliary ser\'lce, 1549. 
 pay; longevity; computation ofservice, 1511. 
 released from, by Secretary of the Navy, 1510. 
 released from; court-martial jurisdiction over, 976. 
 restrictions on character of, on shore, 1528. 
 subject to laws and regulations of the Navy; en- 
 rolled members, 1511. 
 time of peace, 1510. 
 Retired- 
 Enlisted men, 1405, 1406, 1451, 1514, 1546, 1547. 
 Officers and enlisted men; death gratuity law 
 
 applicable to, 1546, 1547. 
 Officers; as members of court-martial 1018. 
 authorized, 656, 659, 660, 1380, 1512. 
 Marine Corps, 966-968. 
 
 pay and allowances, 913-915, 1380, 1381, 1437. 
 prohibited except in time of war, 656, 659, 660. 
 promotion; pay, 1512, 1513. 
 Warrant or commissioned warrant officers; pay, 
 etc., 1503, 1504. 
 ACTI\T; LIST: 
 Retired officers — 
 
 Not eligible for office limited toactivelist, 643, 658. 
 On active duty; not officers of, 657. 
 
 practically restored to, 658. 
 Restoration to, 660, 661. 
 
 Withdrawn from line of promotion on, 654, 655. 
 ACTUAL EXPENSES: 
 See Travel. 
 
 Travel under orders, naval officers, 842, 843. 
 Witnesses in Government ser\'ice allowed, 413. 
 ADDING MACHINES: 
 
 Exchange of, in part payment for new ones, 1409, 1410. 
 ADDITIONAL CHARGES: 
 
 Restriction on preferring against accused before court- 
 martial, 1025. 
 ADDITIONAL NUMBER OFFICERS: 
 
 Advanced for conduct in battle or heroism, 736, 1289- 
 
 war service, 1275, 1276. 
 Engineer officers, 1366, 1432. 
 Excluded from computations to determine number in 
 
 any grade or rank, line or staff, 1429. 
 Grade of rear admiral, 736. 
 Marine Corps, 1289, 1458. 
 
 promoted to brigadier general, held to fill a va 
 
 cancy, 1459. 
 status of major general commandant, 929, 1392. 
 Navy, 451, 452. 
 
 Naval Flj-ing Corps; officers of, 1437. 
 Number of vacancies furnished selection boards should 
 
 not include, 1431. 
 Promotion of, 1275, 1276, 1429, 1430, 1432. 
 Special act authorizing appointment of, 532. 
 Staff officers permanently commissioned with rank of 
 
 rear admiral, 1429. 
 Vacancies caused by, not filled, 1275, 1276. 
 
 ADEQUATE PUNISHMENT: 
 
 Courts-martial required to adjudge, 1034. 
 .\D INTERIM: 
 
 See Recess appointments. 
 ADJUTANT AND INSPECTOR: 
 
 Counted as colonel in computations, 1460. 
 Oaths administered by, 1240. 
 Rank, pay, and allowances, 929, 1460. 
 ADMINISTRATION : 
 
 Changes in; decisions binding on successors, 348, 349. 
 ADMIRAL: 
 
 Aid to does not rank with aid to general in the Army, 
 
 663. 
 Allowances same as general, 1512. 
 Chief of Naval Operations to have rank and title of, 
 
 1418. 
 Clerks to, at sea; civilians not allowed, 1182. 
 Fleet officers to have rank of, 1481. 
 Grade and rank of, 448. 
 Historical note relating to Admiral of the Navy, 447, 
 
 448. 
 Pay, 791, 797, 1301, 1481. 
 Ranks with general, 663. 
 Secretary to, 455, 527, 794, 805, 1182. 
 ADMIRALTY: 
 
 Proceedings in foreign coimtry; counsel for naval 
 officer, 224. 
 ADMIRALTY AND MARITIME JURISDICTION: 
 Crimes committed within, 1348-1351. 
 Judicial power with relation to, 105. 
 ADMISSIONS: 
 
 As to what absent witness would testify, 132, 1055. 
 ADULTERY: 
 
 Definition and punishment, 1354. 
 •ADVANCEMENT: 
 See Promotion. 
 
 Commission not necessary for advancement in rank, 
 102. 
 to be issued retired officers advanced in rank, 1368. 
 Consent of Senate required for advancement in rank, 
 
 734. 
 Dental officers, considered to have gained length of 
 
 service, 1421. 
 Effect of; precedence, 691. 
 Marine officers; conduct in battle or extraordinary 
 
 heroism, 933. 
 Naval officers; conduct in battle or extraordinary hero- 
 ism, 453, 454, 734-736, 1275, 1276. 
 Officers, Navy and Marine Corps; to be additional 
 
 numbers, 1289. 
 Precedence of staff officers who have gained numbers, 
 
 1429. 
 Rank of staff officers; examination, 1481. 1482. 
 above lieutenant commander, 1513. 
 up to lieutenant commander, 1426. 
 Retii'ed officers; commissions issued to, 1368. 
 jurisdiction of accoimting officers, 238. 
 when effective, 638-640. 
 ADVANCES: 
 
 General account of advances authorized for Navy, 1183. 
 Mileage books, commutation tickets, etc., paid for in 
 
 advance of travel, 1282. 
 Partial payments to contractors as work progresses, 
 
 1369. 
 Payment for newspapers and periodicals, 1401. 
 Pay of naval establishment; persons on distant sta- 
 tions, 838, 1472. 
 Public money, restricted, 1099, 1100. 
 Subscriptions to periodicals, 1408, 1409. 
 Witness fees and mileage, naval courts, 1022, 1310. 
 
 1564 
 
INDEX. 
 
 ADVERTISING: 
 
 Agency may be employed in advertising for recruits, 
 
 1382, 1515. 
 Appropriations not available for influencing legisla- 
 tion, 1527. 
 Bids for steam boilers secured without, 1182, 1183. 
 Bunting may be purchased in open market, 1115. 
 Contracts; copies of, to be filed in returns office. Interior 
 Department, 1118, 1119. 
 foreign supplies, 1114. 
 gun steel and armor. Navy, 1223. 
 naval supplies excepted, 1113, 1114. 
 newspapers in District of Columbia, 1123. 
 requirements relating to, 1109, 1111. 
 Envelopes for Government not to contain, 1239, 1240, 
 
 1291. 
 Estimates and appropriations for. Navy, 1103. 
 Newspapers; District of Columbia, 1123, 1187. 
 rates paid for, 1184. 
 sale of naval vessels, 1192. 
 written authority required for, 1124. 
 Persons, firms, or corporations practising before depart- 
 ments, 1411. 
 Rates paid for, 1184. 
 
 District of Columbia, 1187. 
 Recruits; employment of advertising agencies, 1382, 
 
 1515. 
 Sale of— 
 
 condemned naval supplies, 1204. 
 naval material, 1190. 
 
 vessels, 1192. 
 useless papers; executive departments, 1202, 1203. 
 naval vessels, 1381. 
 navy yards and stations, 1401. 
 Tobacco for Navy purchased after, 1250. 
 AD^^CE: 
 
 Legal; Attorney General to provide for Navy Depart- 
 ment, 321. 
 AD^^SORY BOARD: 
 
 To assist appointing power, 95. 
 AERONAUTICS: 
 
 See Aviation; Flying Corps; Pay of Naval Establish- 
 ment. 
 Advisory committee for, 1402. 
 AFFIDAVITS: 
 
 See Acknowledgments; Oaths. 
 Contract returns for flUng in returns office, 1119. 
 Homestead laws; before whom executed, 1083. 
 Not admissible in proceedings before court of inquiry, 
 1056. 
 AFFIRMATION: 
 
 Satisfies requirement as to oath, 185. 
 AGE: 
 
 Appointments; above retiring age, 592. 
 acting ensigns, 1435. 
 assistant paymasters, 470, 1407. 
 
 surgeons, 462, 463, 1427. 
 candidates for; decisions relating to, 463, 464. 
 chaplains, 502. 
 dental corps, 1422. 
 ensigns, from warrant officers, 1277. 
 machinists, 512, 1268, 1269. 
 Marine Corps, 1270, 1461. 
 midshipmen, 750, 751, 1472, 1473, 1507. 
 warrant officers and mates, 512. 
 Enlistments, Navy, 540, 551, 1402, 1403. 
 Naval Reserve Force; disenroUment at 64 years, 1510. 
 
 enrollment in Naval Reserv'c, 1.509. 
 Promotion by selection, 1434. 
 
 temporarily suspended in certain cases, 1551. 
 
 AGE— Continued. 
 Retirement — 
 
 chiefs of bureaus, 672, 673. 
 civil employees, 1536-1543. 
 Marine Corps, 964. 
 naval officers, 64 years, 589, 1435. 
 iaeUgible for selection, 1434, 1551. 
 
 staff officers, rank, 685. 
 Selection for promotion; requirement not appUcable 
 
 to staff officers, 1513. 
 Transfer to permanent grades from temporary or 
 reserve grades, 1551. 
 .4^GENTS: 
 
 Former Government employees not to act as, against 
 
 United States, 224. 
 London fiscal; account of Navy Department with, 
 1222. 
 AGGRAVATING CIRCUMSTANCES: 
 
 Officer sued for illegal act, 56. 
 AGREEMENTS: 
 
 Illegal; to defraud United States, 990. 
 AID: 
 
 Acting rear admiral not entitled to, 577. 
 
 Admiral's aid does not rank with aid to general, 663. 
 
 CivUian experts; restrictions on emplojTnent from 
 
 naval appropriations, 1281. 
 Constructipn officer can not be detailed as, 508, 779. 
 Line officer detailed as, 669. 
 Pay, 815-817, 941, 1303. 
 Rank and precedence of, 669. 
 Regulations governing; vaUdity, 785. 
 Secretary of the Navy's, can not super\-ise chiefs of 
 
 bureaus, 360. 
 Staff officers not required to communicate with com- 
 manding officer through, 670. 
 Status and pay, 670. 
 AIRCRAFT: 
 
 See Aviation; Flying Corps; Pay of Xaval Establish- 
 ment. 
 ALASKA: 
 
 Aliens fishing in waters of: seizures and arrests by 
 
 naval officers, 1289. 
 Census taken of, 1525. 
 
 Civil employees: sale of stores to, 1313, 1314. 
 Coal: use of lands for Navy, etc., 1400. 
 mining in, for Navy, 1547, 1548. 
 preference right to purchase for Army and 
 Navy, 1307. 
 Naval officers detailed to, 1393. 
 Railroads: transportationof coal: employment of naval 
 
 officers, etc., 1393, 1394. 
 Shore duty in: additional pay allowed, 1275. 
 ALCOHOLIC LIQUORS: 
 
 .\bsence from duty caused by; naval personnel, 825, 
 
 1436. 
 Distilled spirits on naval vessels; restrictions. 089. 
 Midshipmen to be instructed as to nature and effects 
 
 of, 1194, 119.5. 
 Prohibition of, near military camps, and to persons in 
 uniform, etc., 1477, 1478. 
 ALIENS: 
 
 See Citizenship; Naturalization. 
 Enlistment of. in Navy, .5.54. 
 Midshipmen, eligibility for appointment, 571. 
 Natives of insular possessions are not, 113. 
 Naturalization of. 36, 114, 137-140, 567, 568, 1077, 1078, 
 1443, 1505-1507. 
 ALLEGIANCE: 
 
 Oath, Naval Reserve Force, 1444. 
 officers and men of Naw, 1271. 
 
 1565 
 
INDEX. 
 
 ALLEGIANCE-Continued. 
 
 Oath, persons prosecuting claims against United 
 States. 1093. 
 ALLIES: 
 
 Failing to assist vessels of, in battle; punishment, 
 Navy, 9*1. 
 ALLOTMENTS: 
 
 Contintrent and general approi)riations to be appor- 
 tioned to avoid deficiencies, 1104, 1105. 
 Pay; insane ix>rsons. naval .service, 7.S9. 
 
 men missing in action: continuance of, 1520, 1521. 
 naval establishment, S25, S20, 1249, 1407, 1498. 
 Secretary of the Na^•y can not increase, 789. 
 ALLOWANCES: 
 
 See Commutation; Heat and Light; Medicines; Medical 
 attendance; Mileage; Naval Reserve Force; Quarters; 
 Rations; Subsistence; Transportation; Travel. 
 Additional, for extra services, restricted, 10C6-1071. 
 Admirals, 1512. 
 Artificiallimbs,1181. 
 
 A\iation duty; not to be increased for, 1513. 
 Chaplains, 1301-1303, 1396. 
 Chief of Naval Operations, 1512. 
 Chiefs of bureaus, 1512. 
 
 subsequently retired, 1303. 
 Clothing outfit on enlistment, 876, 877, 1203, 1403. 
 Commissioned warrant officers, 803-805, 1267, 1429, 1430. 
 Definition, 440, 827, 828, 953, 1496. 
 Enlisted men — 
 
 Discharged: home on receiving ship ]»nding 
 
 reenlistment, 1201, 1202. 
 Effects lost on vessels; reimbursement, 1106. 
 Hospital Corps, 1420. 
 Medal of honor gratuity, 1275. 
 Na\'y • compilation of orders fixing pay and allow- 
 ances, 850-863. 
 Forage, not allowed naval officers, 1267. 
 Funeral expenses, 905, 906, 1498. 
 Gunnery sergeants, Marine Corps, 1383. 
 Homesteads: general provisions relating to, 1083-1087. 
 Judge Advocate General, 1512. 
 Maintenance, attaches, 828. 
 Marine Band, 952, 1463, 1464. 
 Marine Corps, 936-954, 1435, 1460. 
 Medical attendance not pay, but an aUowanee, 440. 
 Naval officers, 827-829, 1267, 1301, 1435, 1437. 
 
 prisoners, 1310, 1311. 
 Nurse Corps, female, 807, 808, 1303, 1304. 
 Pension to disabled enlisted men of specified service, 
 
 1154, 1155. 
 Pharmacists and chief pharmacists, 1420. 
 Promoted officer; increase commences from date stated 
 
 in commission, 1390. 
 Rations or commutation therefor, an allowance and 
 
 not pay, 9.53. 
 Rear admirals, upper and lower half, line and staff, 
 
 1429. 
 Retired enlisted men, Navy and Marine Corps, 1299. 
 
 officers on active duty, 1437, 1512, 1513. 
 Sale of fuel to officers, 943, 9.51. 
 Salvage,775, 1145, 1147. 
 Secretaries to admiral and vice admiral, 455. 
 Servants; mess attendants; naval officers making use 
 
 of, 829. 
 Special, to naval personnel under unusual conditions, 
 
 696, 828, 1545. 
 Travel; distances determined by Secretary of the 
 
 Navy, 1315. 
 Trusses furnished enlisted men, 1185. 
 Vice admirals, 1512. 
 
 ALLOWANCES— Continued. 
 Waiver of, 877. 
 
 Warrant officers, 803-805, 1207, 1420. 
 ALMANAC: 
 
 See Nautical Almanac. 
 ALTER.-VTION: 
 
 Bonds, 4&1. 
 ALTERNATES: 
 
 Nomination of, for Naval Academy, 748, 1294. 
 AMBULANCE: 
 
 Service; Hospital Corps to perform, 1420. 
 Ships; Nurse Corps, female, eligible for duty on, 1303, 
 1304. 
 AMENDMENTS: 
 
 Charges and specifications, 1028. 
 AMERICAN EPHEMERIS AND NAUTICAL AL- 
 MANAC: 
 See Ephemeris and Nautical Almanac; Nautical Alma- 
 nac; Printing and binding. 
 AMMUNITION: 
 
 Navy; unlawfully selling, stealing, etc., 990, 1325. 
 Sale of, 1516. 
 
 War Department; transfer to other departments, 1527. 
 Wasting or permitting waste; punishment, Navy, 985. 
 AMNESTY: 
 
 Power to grant, 85, 86. 
 ANALYTICAL INDEX: 
 
 Constitution, 143-lSl. 
 ANCHORAGE: 
 
 Vessels in waters of United States, 1300, 1301, 1382, 1485. 
 ANNAPOLIS: 
 
 See Naval Academy. 
 Naval Academy established at, 738. 
 ANNUAL REPORTS: 
 
 See Reports. 
 ANNUITIES: 
 
 Retired civil employees, 1537, 1538, 1542. 
 ANTEDATING: 
 See Date. 
 
 Commissions; midshipmen on graduation 1479. 
 Rank- 
 promotion, 649-651, 731-734. 
 
 commencement of pay, 830-838. 
 Marine Corps, 931. 
 retirement, 912. 
 ANTIDIPHTHERIC SERUM: 
 
 Injections; naval personnel must submit to, 458. 
 APPEALS: 
 
 Attorney General has no jurisdiction over decisions 
 
 of departments, 302. 
 Court of Claims decisions, 1365. 
 Deck court decisions, 1309. 
 Habeas corpus cases, 409. 
 Not required by due process of law, 125. 
 To heads of departments, 79, 362. 
 President, 79, 83. 
 APPLICANTS: 
 
 For enlistment, not troops of United States, 1180. 
 APPLICATIONS: 
 
 Quarters; allowance of commutation without, 7C2. 
 APPOINTMENTS : 
 
 See Commission; Examinations; Examining boards; 
 
 Recess appointments; reinstatement. 
 Acceptance, 96, 100, 207. 
 
 date pay commences, naval officers, 829. 
 implied resignation of office already held, 529. 
 not necessary to complete, 96. 
 promotion, 97, 652, 654. 
 Accounting officers notified, when made without 
 
 consent of Senate, 1072. 
 Acting; assistant surgeons, 527, 1184, 1261. 
 
 1566 
 
INDEX. 
 
 APPOINTMENTS— Continued. 
 Acting; chaplains, 1396. 
 
 ensigns, 799, 1435, 1436, 1438, 1439. 
 inherent power of President to make, 473. 
 macliinists, 1269. 
 paymasters, 472, 473, 839. 
 warrant officers, 525, 794, 803. 
 Admiral of the Navy may appoint secretary, 527. 
 Age requirements, 462-464, 470, 502, 512, 592, 750, 751, 
 126,S-1270, 1277, 1407, 1422, 1427, 1435, 1461, 1472, 1473, 
 1507. 
 Assistant paymasters, 469, 1407. 
 Secretary of the Navy, 1204. 
 Board's advice not binding on appointing power, 95. 
 Brigadier generals. Marine Corps, 1459, 1460. 
 Chaplains, 501, 502. 
 Chief of Naval Operations, 1401. 
 Chiefs of bureaus. Navy Departments, 362-364, 1294. 
 
 power to make, 207. 
 Civil- 
 engineer corps, 531. 
 
 Establishment, heads of departments empowered 
 to make, 205. 
 navy yards, 779, 780. 
 CiviUan storekeepers, foreign stations, 533. 
 Commissioned warrant officers from warrant officers, 
 
 1282. 
 Commissions delivered after adjournment of Senate, 
 1072. 
 
 withheld after signing, 652. 
 Competitive examinations required, 94, 1268, 1269. 
 
 1277, 1472, 1473. 
 Congress- 
 can not make, 92. 
 
 can not require President to make, 767. 
 may change rank of officer but not appoint to 
 different office, 910. 
 impose additional duties without appointing 
 
 to new office, 94. 
 indirectly limit power of executive, 92. 
 prescribe general qualifications, 95. 
 Constitutional provision for, 89. 
 Constitutionality of— 
 
 special act designating appointee, 93. 
 statutes requiring examinations , 95, 709. 
 
 requiring promotion by seniority, 647, 648, 681. 
 Construction corps, 505, 506, 1408, 1428. 
 Date of, 97, 207. 
 
 specified in commission; conclusive upon account- 
 ing officers, 238. 
 when length of service for promotion commences, 
 464. 
 Decisions relating to, 89-100. 
 Defined, 93, 513, 522, 653, 654, 830, 930. 
 Delegation of power to make, 207, 533. 
 Dental Corps, Navy, 1421, 1422. 
 Diplomatic or consular service; naval officer accepting, 
 
 579. 
 Director of civilian markmanship; marine officer 
 
 eUgible, 1465. 
 Disbursing agents, 1095. 
 clerks, 209, 211. 
 officer, foreign station, 788. 
 Discretionary power, 95. 
 Dismissal of naval officers by President and Senate, 
 
 1011. 
 Dismissed midshipmen; restrictions on, 582, 1281. 
 
 officers; ineUgible, 582, 1503. 
 "Employ" construed to mean appoint, 206. 
 Enlisted men as warrant or commissioned officers; 
 discharge, 523. 
 
 APPOINTMENTS— Continued. 
 
 Ensign, from commissioned warrant officers, 1314. 
 from graduates of Naval Academy, 765-768, 1193, 
 
 1392. 
 from warrant officers, 1277, 1280-1282. 
 Examinations; acting chaplains, 1396. 
 acting ensigns, 1435. 
 assistant paymasters, 470. 
 assistant surgeons, 462. 
 civil employees, 202, 780. 
 competitive required, 94, 1268, 1269, 1472, 1473. 
 constitutionality of statutes requiring, 95, 709. 
 ensigns from warrant officers, 1277. 
 machinists, 1268, 1269. 
 Marine Corps, 1270, 1461. 
 midshipmen, 748, 1472, 1473. 
 Naval Reserve Force, 1445, 1451. 
 Nurse Corps, female, 1303, 1304. 
 pay clerks, 1407. 
 pharmacists, 1420. 
 subject to, 768. 
 Expiration of, 208. 
 
 Final as to qualifications of candidate, 96. 
 Flag officers, 576. 
 Fleet staff officers, 499. 
 Form of, 99. 
 Inspector, weigher, and measurer of fuel for public 
 
 service, 1110. 
 Judge Advocate General of the Navy, 1186, 1187. 
 Judicial decisions relating to, 338. 
 Machinists; qualifications, etc., 1268, 1269. 
 Major general commandant. Marine Corps, 929, 1392, 
 
 1460. 
 Major generals, Marine Corps, 1512. 
 Marine Corps; age and examination of candidates, 
 1270, 1461. 
 second Ueutenants, 922, 925, 1270, 1392, 1461, 1462. 
 Medical Corps, 461-464. 
 Members of Congress accepting consideration for 
 
 influencing; 1332, 1333. 
 Midshipmen, 747, 748, 1281, 1294, 1295, 1472, 1473, 1502, 
 1507. 
 on graduation, 765-768, 1188, 1189, 1193, 1221, 
 1222, 1270, 1392, 1479. 
 to Navy or Marine Corps; commencement of 
 pay, 1221, 1222, 1479. 
 Naval — 
 
 Observatory; board of visitors to recommend, 1276. 
 officers dismissed or dropped from rolls for un- 
 authorized absence, not eUgible for, 582, 1503. 
 in time of war, 1392, 1393. 
 may employ laborers at navy yards, 780. 
 previously convicted of desertion, 573. 
 Reserve Force, 1444, 1445. 
 storekeepers, 531. 
 Navy mail clerks; mates eligible for, 522. 
 Nomination of ineUgible; effect of, 96. 
 Nurse Corps, female. Navy, 1303, 1304. 
 Oath of office — 
 
 appointment or promotion; chief clerks to admia- 
 
 ister, 1215. 
 civil, military, and naval service, 1065, 1066. 
 reappointment, 97. 
 Paymaster of the fleet, 474. 
 Pharmacists, by Secretary of the Navy, 1262. 
 Preference to discharged soldiers, etc., in civil establish- 
 ment, 1065, 1383, 1524, 1526. 
 President making, without consent of Senate, 577. 
 
 accounting officers notified, 1072. 
 Probationary; acting ensigns, 1435. 
 Marine Corps, 925, 1461, 1462. 
 
 1567 
 
IXDEX. 
 
 APPOINTMENTS— rontiniied. 
 
 Proffssors of mathematics, r>03, 504. 
 Promotion and, definea, 93, 513, 522, 653, 654, 830, 930. 
 by seniority; constitutionality of statutes relating 
 to, &17, 648, 681. 
 Qualifications of candidate not open to review after 
 
 appointment, 96. 
 Rank, change in, is not appointment to different 
 
 ollice, 910. 
 Reappointment not required by increase in pay of 
 ollice, 208, 341. 
 of naval oilicers who have been honorably dis- 
 charged, 1393. 
 Recess; accounting officers notified of, 1072. 
 form of, 217. 
 no salary until confirmation if vacancy existed 
 
 while Senate in session, 1066. 
 not accepted, 461, 462. 
 retirement of officer while holding, frtO. 
 Senate temporarily adjourned, 33, 217. 
 vacancies in departments, 216, 217. 
 Restoration of dismissed officers, 94, 582, 1281, 1503. 
 Retired officers to command squadrons and single 
 
 ships. 659. 
 Revocation of, 524, 529, 652, 747, 1396, 1435, 1461, 1462. 
 Secretary of the Navy acts for President, 500. 
 
 authorize<l to make, 206, 337, 525, 627, 533, 745, 1184, 
 1303, 1301, 1396, 1435. 
 Senate's consent indirectly given, 96. 
 
 power, 96. 
 Staff departments, Marine Corps, 1460, 1461. 
 Statutory requirements apply to subsequent enact- 
 ments, 462,463. 
 not applicable to temporary, 462. 
 Superintendent, Nurse Corps, female; Secretary of the 
 
 Navy to make, 1303, 1304. 
 Supply Corps, 469. 
 Surgeon of the fleet, 466. 
 Temporary, 99. 
 
 accounting officers notified of, 1072. 
 
 acting paymasters, 472. 
 
 disbursing clerks, 1315, 1316. 
 
 limitation on, vacancies in departments due to 
 
 death or resignation, 216. 
 no extra compensation under, 217. 
 not accepted, 100. 
 termination of; accepting new commission in same 
 
 grade, 669. 
 vacancy, chief of bureau, 213, 214. 
 head of department, 99, 212, 214. 
 Territorial offices; naval persoimel restricted from 
 
 accepting, 1075. 
 Transfer of naval officers to different branch of the 
 
 service, longevity credits, 1249. 
 Unconstitutional precedents, 95 
 Volunteer officers transferred to regular Navy, 530. 
 Warrant officers; Marine Corps, 1462. 
 
 Navy, 509, 523, 534, 1268, 1269, 1406, 1407, 1419, 
 1420. 
 What necessary to constitute, 96. 
 Withholding commission after confirmation, 102. 
 APPORTIONMENT: 
 
 Contingent and general appropriations; to avoid defi- 
 ciencies, 1101, 1105. 
 APPREHENDING DESERTERS: 
 
 Estimates and appropriations for. Navy, 1103. 
 APPRENTICES: 
 
 -Vdditional to authorized number of enlisted men in 
 
 the Navy, 536, 1248, 1249, 1478. 
 Honorably discharged; preferred for appointment as 
 warrant officers, 534. 
 
 APPRENTICES— Continnod . 
 
 Navy yards; not ciihsled men, 538. 
 
 Number authorized to be enUsted, 534. 
 APPROPRIATIONS: 
 
 See Contingent fu7ids: Estimates. 
 Abstracts of title, etc., 294. 
 Accounts to be rendered according to, 1097. 
 Adjustment of, for supplies and services to other de- 
 partments or bureaus, 579, 1409, 1536. 
 Allotments, to avoid deficiencies, 1104, 1105. 
 Applied solely to the objects for which made, 1104. 
 Apportionment of general and contingent, to avoid 
 
 deficiencies, 1101, 1105. 
 Balances unexpended; disposition of, 1107, 1177, 1188, 
 
 1195, 1409, 1557. 
 Books of reference, law books, and periodicals; re- 
 strictions on purchase of, 1073, 1261. 
 Civil establishment; number and pay of employees 
 
 Umited by, 205, 1188, 1384, 1409. 
 Clothing, Marine Corps; available for reimbursing 
 claimants for lost clothing, etc., 1493. 
 purchase of uniforms, etc., lor sale to officers, 1531. 
 Coast and Geodetic Survey; expenses defrayed from 
 
 naval, 1479. 
 Coast Guard expenses — 
 
 Defrayed by Navy when cooperating, 1091. 
 Naval appropriations reimbursed for, 1456. 
 Commissions or inquiries; expenses of, require special 
 
 appropriation, 1105, 1316. 
 Compensation of officials and clerks; contingent, inci- 
 dental, and miscellaneous not available for, 1105, 
 1188, 1384. 
 Conditions upon; constitutionality; duties of Marine 
 
 Corps, 954. 
 Contingent — 
 
 Annual report of expenditures from, 226. 
 Apportionment between bureaus, 1384. 
 
 to avoid deficiencies, 1104, 1105. 
 Employment of civil cstabUshment restricted, 
 
 1105, 1188, 1384. 
 Enumerated; expense of insane patients, 788, 789. 
 Expenditures; jurisdiction of accounting officers, 
 243. 
 written order of head of department required, 
 1105, 1106. 
 Expenses of commissions and inquiries not to be 
 
 paid from, 1105. 
 Navy Department; controlled and expended by 
 
 direction of the Secretary, 1104. 
 Restrictions on purchases, 1073. 
 
 law books, books of reference, and periodicals, 
 1261. 
 Use of, 828. 
 Contracting in excess of, 1104, 1116, 1288, 1331. 
 Courts martial and courts of inquiry; expenses of, may 
 
 be allowed without special appropriation, 1105. 
 Deficiency — 
 
 Contracts for naval supplies permitted, 1116, 1288. 
 Contracts for tobacco, butter, and cheese for periods 
 
 more than one year, 1113. 
 Not to be incurred, 1104, 1105, 1238. 
 exceptions, 1288. 
 Disbursing clerk employed in excess of, 211. 
 Equipment of vessels; care of gifts defrayed from, 1305. 
 Estimates required to be furnished Secretary of the 
 
 Navy by bureaus, 385. 
 Exceeding of, prohibited, 1104, 1105, 1116, 1187, 1238, 
 
 1288, 1331. 
 Expenditures; acciunulation of supplies for future 
 years, 387, 1113. 
 after fiscal year, 1107. 
 
 1568 
 
INDEX. 
 
 APPROPRIATIONS— Continued. 
 
 Expenditures; quarterly publication of, 262. 
 Experiments, Bureau of Ordnance; use of; restrictions 
 
 not applicable to, 1395, 1396. 
 Fines and forfeitures, courts-martial; expenses of pris- 
 oners paid from, 1313. 
 Fiscal year defined, 257. 
 Foreign hydrographic surveys; restrictions on use of, 
 
 1106, 1237. 
 Form of bUls maldng, 1290. 
 
 Fuel and transportation ; expenses chargeable to, 1407, 
 1408, 1482, 1515, 1547, 1548. 
 District of Columbia; paj-ment for deliveries dur- 
 ing previous fiscal year, 1553. 
 General account of advances, authorized for Navy, 
 
 1183. 
 General; apportionment of, to avoid deficiencies, 1104 
 1105. 
 not available for official and clerical compensation, 
 
 1105, 11S8, 1384. 
 not to be used for expenses of commissions and 
 
 inquiries, 1105, 1316. 
 pro\-isions relating to, 1101-1108. 
 Incidental, not to be used for official or clerical com- 
 pensation, 1105, 1188, 1384. 
 Increase of the Navy, construction and macliinery; 
 equipment outfits chargeable to, 1408. 
 report of civUians employed under, 1272. 
 Interpretation of, 22. 
 
 Land for pubhc building; specific appropriation not 
 to be exceeded, 1116. 
 purchase of; decisions relating to, 294. 
 Lighthouse Service; expenses defrayed from naval, 
 
 1456. 
 Limited to year for which made, 387. 
 Lump sum; explanations to accompany estimates, 
 1385, 1386, 1417. 
 personal services employed under, 336, 1105, 1307, 
 1312, 1313, 1389, 1398, 1418, 1419, 1491, 1492, 1503. 
 Maintenance, Bureau of Yards and Docks; available 
 
 for naval training stations, 1530. 
 Medal of honor gratuity, enUsted men, 515. 
 Miscellaneous receipts, appropriation required for use 
 
 of, 1095. 
 Naval- 
 Academy; restriction on use of, 751. 
 Home; payment of beneficiaries employed at, 
 
 1294. 
 Reserve Force, retainer pay, 1455. 
 
 withheld and credited to; use of, 1552. 
 service, used for ci^^l estabUshment; annual report 
 
 of, to Congress, 1194. 
 supply account fund; appropriation for creation of, 
 1557. 
 Navy- 
 Annual report by Secretary of the Navy, 381. 
 by Secretary of Treasury, 261, 1183. 
 to Secretary of Treasury, 265, 266. 
 balances; estimates of probable demands on, 381. 
 controlled and expended by direction of the Sec- 
 retary of the Navy, 1104. 
 credited with appraised value of stores, etc., turned 
 
 in from ships and stations, 1397. 
 direct and indirect charges included in cost of 
 
 work, 1305, 1366. 
 disbursements made by order of Secretary; re- 
 sponsibility, 266. 
 each bureau's to be kept separate in Treasury, 
 1104. 
 expenditures to be accounted for, 1102, 1103. 
 
 APPROPRIATIONS— Continued. 
 
 Navy — Continued. 
 
 indemnity to seamen and marines for lost clothing, 
 
 1106. 
 information from abroad, use of, 828. 
 insane patients m institutions, 788, 789. 
 maintenance of students and attaches; use of, 828. 
 permanent annual, 1106, 1107. 
 petroleum fund; use of, 1399. 
 purchase of supplies from, without regard to bu- 
 reaus, 1216. 
 salvage, payment to salvors, 1106. 
 titles of, 1102, 1103. 
 New ships; restrictions on employment of civQians 
 
 from, 1281. 
 Newspapers; expenditures limited, 225, 1073. 
 ObUgating in excess, prohibited, 1104, 1288, 1331. 
 Obtaining information from abroad and at home; 
 
 accounting for expenditures, 1417. 
 Outfits on first enlistment; available for reimbursing 
 
 naval personnel for lost clothing, etc., 1493. 
 Outstanding; amount to be reported in annual esti- 
 mates, 1102. 
 Overobligattng, restrictioas on, 1104, 1288, 1331. 
 Passenger vehicles; restrictions on piu-chase and 
 
 maintenance, 1283, 1284, 1398. 
 Pay — Marine Corps; avaUable for payment of claims 
 for damaged or lost property, 1493. 
 construed as permanent, 1-386. 
 deposits credited to, 1295. 
 death gratuity payable from, 1547. 
 retainer pay. Marine Corps Reserve, chargeable 
 
 to, 1455. 
 special allowances paid from, 1545. 
 unexpended balances, 1177, 1178, 1195. 
 Pay, miscellaneous; credited with interest, premiums, 
 and exchange, 1222. 
 special allowances to naval personnel paid from, 
 1545. 
 Pay of ci\H employees not appropriated for, 204. 
 Pay of the Navy; claims for damaged property paid 
 from, 1493. 
 compensation of Naval Academy band payable 
 
 from, 1355. 
 construed as permanent, 1386. 
 cost of Navy medals, crosses, and bars, paid from, 
 
 1522. 
 death gratuity payable from, 1547. 
 retainer pay. Naval Resen-e Force, chargeable to, 
 
 1455. 
 unexpended balances, 1177, 1178, 1195. 
 use of, 515, 1183. 
 Periodicals, restrictions on purchase of, 1073. 
 Permanent, HOG, 1107, 1386. 
 Personal services in excess of, restricted, 1104. 
 Post laundries. Marine Corps; receipts credited to 
 
 appropriations, 1531. 
 Printing and binding; hydrographic surveys and 
 charts; restrictions on use, 1106. 
 must be specific, 1296. 
 not to be exceeded, 1238. 
 Proceeds of sales, condemned Navy clothing, revert to, 
 
 1108. 
 Receipts from sale of publications, Hydrographic 
 
 Office, 390. 
 Rented buildings. District of Columbia; specific re- 
 quired, 1181, 1182, 1187. 
 Repairs and changes in naval vessels; must be made 
 
 in detail, 1299. 
 Repairs and preservation: available for naval training 
 stations, 15-30. 
 
 1569 
 
INDEX. 
 
 APPnOPRIATIONS— Continued. 
 
 Requisitions for money in Treasury, 1104. 
 
 Reserve material, Na\'y; reimbursement for stock 
 
 issued, 1473, 14S2. 
 Restrictions on purchaser from; newspapers .books, 
 
 periodicals, etc., 1073. 
 Reuse of proceeds from sale of timber lands, logs, etc., 
 
 151S. 
 Royalties on lands ulthin naval petroleum reserves 
 
 use of, 1^A5. 
 Shells and projectiles; restrictions on expenditures 
 
 for, 1395, 13%. 
 Small stores fund used for purchase of small stores in 
 
 Na\-j', 1184. 
 Specific language necessary to make, 1297. 
 Supplies for departments; restrictions on expenditure 
 
 of, 1526. 
 Telegrams, telephones, letters, etc.; restriction on use 
 
 of, to influence legislation, 1527. 
 Title of acts making, 1S7. 
 
 Transfer between bureaus and departments, for sup- 
 plies and services, 579, 1409, 1536. 
 of property specifically appropriated for a par- 
 ticular navy yard, 779. 
 Transportation, recruiting and contingent; expenses 
 
 chargeable to, 1274, 1275. 
 Unexpended balances; disposition of, 1107, 1177, 1188, 
 1195, 1409, 1557. 
 for civil employees, disposal of, 1188. 
 of naval appropriations transferred to naval sup- 
 ply account fund, 1557. 
 reappropriation of, 1409. 
 Vehicles for public officers; must be specific, 1283, 
 
 12S4, 1398. ' 
 
 Voluntary services prohibited, 1104. 
 Witnesses' fees, 413, 418, 1310. 
 APPROVAL: 
 
 Bonds, 480-481, 486, 487. 
 
 Claims; effect of action by Secretary of the Navy, 237, 
 
 238, 272. 
 Court-martial sentences, 1036, 1051, 1312. 
 Expense accounts, jurisdiction of accounting officers, 
 
 242, 243, 244. 
 Findings of examining boards, President's action, 
 
 724-728. 
 Retiring board records; President's action, 616. 
 ARLINGTON: 
 
 Memorial ampliitheater; memorials and entombments 
 in, 1559. 
 ARMAMENT: 
 
 Sale of, for sentimental reasons, 1284. 
 ARMOR: 
 
 Advertising required for purchase. Navy, 1223. 
 ARMOR PLANTS: 
 
 Cost of product; report to Congress, 1419. 
 ARMS: 
 
 Navy; unlawfully selling, stealing, etc., 990, 1325. 
 Right of people to carry, 117. 
 ARMY: 
 
 See Articles of War; Executive departments; Marine 
 
 Corps; Public property; War Department. 
 Allowances, except forage, extended to naval officers, 
 
 12(57. 
 Appointment of dismissed midshipman as officer of, 
 
 restricted, 12S1. 
 A\iation; jurisdiction of, defined, 1554. 
 Cadet service not credited to naval officers, 1390. 
 Command of joint Army and naval forces, 443, 444, 668. 
 Courts-martial; convening of, on naval vessel, 65. 
 jurisdiction over naval personnel, 1544. 
 marine officers may serve as members of, 1544. 
 
 ARMY— Continued. 
 
 Deserter; appointment as officer of Navy, 573. 
 Enlisted men transferred to Navy or Marine Corps, 555. 
 General provisions relating to, 433-444. 
 Jurisdiction over naval personnel, 1544. 
 Marine Corps; command in, 443. 
 cooperating with, %1. 
 detached for service with; status and duties; 
 
 decisions relating to, 443, 956-963. 
 rank in relation to, 930, 931. 
 Midshipman service not credited to officers of, 1388. 
 Naval deserters serving in; punishment for retaining, 
 1544. 
 forces cooperating with; supplies and transporta- 
 tion, 433. 
 medical personnel serving with, 1421. 
 officers credited with services in, 1191. 
 
 detailed for duty in connection with, 578. 
 Nurse Corps; laws appUcable to Navy Nurse Corps, 
 
 female, 1303, 1304. 
 Oath of allegiance extended to officers and men of 
 
 Navy, 1271. 
 Officers' Reserve Corps; leave of absence, civil em- 
 ployees; reinstatement, etc., 1476. 
 Pay and allowances; applicable to Marine Corps, 940- 
 
 943. 
 Promotion laws applicable to Marine Corps, 924. 
 Quartermaster's Department to furnish suppUes and 
 transportation for naval and marine detachments, 
 433. 
 Reduction of; decisions relating to, 98-99. 
 Relative rank with Navy, 662. 
 
 Retirement laws applicable to Marine Corps, 964, 965. 
 Rifle ranges; use of by naval service, 1412, 1413. 
 Sale of— 
 
 Ordnance and ordnance stores to other depart- 
 ments, 1388. 
 Ordnance to naval officers, 1312. 
 Subsistence stores, to Navy and Marine Corps 
 personnel, 1465. 
 Service credited to erdisted men of Navy and Marine 
 Corps for retirement, 1291, 1299. 
 to officers for longevity pay in Navy, Marine Corps, 
 etc., 1535. 
 Supplies, real estate, etc.; interchanged between Army 
 
 and Navy, 1528. 
 Transports; accommodations available for naval per- 
 sonnel and suppUes, 1298. 
 families of naval personnel and employees may 
 
 use, 1298. 
 inspection by naval officers, 507, 578. 
 passengers for Guam transported on, 1298. 
 ARRAIGNMENT: 
 
 Waiver by accused, 126. 
 ARREARS: 
 
 W ithholding pay of officer, 1072. 
 ARREST: 
 
 Accused, for trial by court-martial, 117, 1025, 1026. 
 
 furnished with charges at time of, 131. 
 Cixdl authorities; persons in naval or civU service, 292, 
 
 293, 825, 871, 950. 
 CiviUans by naval authorities, 1387, 1478. 
 Commanding officer of vessel may inflict as punish- 
 ment, 1002. 
 Definition of, 1025, 1026. 
 Deserters from the Navy, 117, 987, 1103, 1311. 
 Enlisted man, by civil authorities; pay during ab- 
 sence, 871, 950. 
 Exemption of Federal officers from State jurisdiction, 
 51. 
 of marines in certain cases, 935. 
 False imprisonment, responsibility of officer, 54, 57. 
 
 1570 
 
INDEX. 
 
 ARREST— Continued. 
 
 Habeas corpus; enlisted man discharge may be rear- 
 rested, 409. 
 officer under nominal arrest, 1029. 
 Illegal, responsibility for, 54, 57. 
 Immunity from, Member of Congress, 33. 
 Military offenders, 117, 987, 1026, 1103, 1311. 
 Naval- 
 Authorities may make, without assistance of civil 
 
 authorities, 1026. 
 offenders may be arrested by civil officers for naval 
 
 authorities, 1311. 
 officers authorized to make; 1387, 1478. 
 for trial by court-martial, 1029. 
 not in custody; habeas corpus proceedings 
 
 by, 407. 
 on bail, 1026. 
 Nominal; moral restraint, 1029. 
 Offenders who have been discharged or dismissed from 
 
 naval service, 991. 
 Officer awaiting trial by civil authorities; pay, 825. 
 to deliver up sword, 1029. 
 under; commutation of quarters, 700, 701. 
 Plea of former arrest, 119. 
 Rewards for arrest of deserters, 118. 
 ARSENALS: 
 
 Enticing workmen from, 1327. 
 ARSON: 
 
 Burning of vessel, 1353. 
 Dwelling house or other building, 1350. 
 Mailing matter tending to incite, 1340, 1341. 
 ARTICLES FOR THE GOVERNMENT OF THE 
 NAVY: 
 See Courts-martial; Crimes. 
 Abetting combination against commanding officer, 984. 
 
 the making or signing of a false muster, 985. 
 Absence — 
 
 From command without leave, 988. 
 
 station or duty without leave, or after ex- 
 piration of, 985. 
 Leaving station before being regularly reheved , 979 . 
 Without leave; officer whose resignation has not 
 been accepted, 989. 
 or after leave has expired, 985. 
 Abusing inhabitants on shore, 985. 
 Accepting challenge to fight duel, 9S4. 
 Accounts; commanding officer and paymaster to sign 
 when men sent from ship, 995. 
 final pajrment of crew ; duties of commanding offi- 
 cer relating to settlements, 995. 
 to accompany men transferred to other vessels, 
 
 995. 
 to be furnished officers and men whenever sent 
 from ship for any cause, 995. 
 Acting commanding officer, punishments by, 1005. 
 master-at-arms refusing to receive prisoners or suf- 
 fering them to escape, 985. 
 Adequate punislmient required by court-martial, 1034. 
 Advising the commission of frauds upon United States, 
 
 990, 991. 
 Agreements to defraud the United States, 990. 
 Aiding and enticing others to desert in time of peace, 
 985. 
 or abetting the making of a false muster, 985. 
 others to betray trust in time of war, 979. 
 Alcoholic liquors; restriction on admission to naval 
 
 vessels, 989. ■ 
 AlUes; faiUng to assist vessels of, during battle, 980. 
 Ammunition intended for naval service; unlawfully 
 selling, stealing, etc., 990. 
 wasting or permitting same, 985. 
 
 ARTICLES FOR THE GOVERNMENT OF THE 
 
 NAVY— Continued. 
 Arms intended for naval service, unlawfully selling, 
 
 stealing, etc., 990. 
 Army courts-martial may punish offenses against, 
 
 committed by marines, 1544. 
 Arrest by commanding officer as punishment, 1002. 
 
 of offenders after discharge or dismissal, 991. 
 Articles to be displayed on vessels, 996. 
 
 to be read once a month to ship's company, 996. 
 Assault and battery, defined, 981. 
 
 attempting or threatening to strike or assault 
 superior officer, 979. 
 Assaulting other persons in the Navy, 984. 
 
 superior officer while in execution of his duties, 979. 
 Assembly, mutinous, 979. 
 Attempts; desertion in time of peace, 985. 
 fraud against United States, 991. 
 mutiny, 979. 
 
 to corrupt person in Navy to betray his trust, 9S1. 
 to desert, 987. 
 
 to foment quarrels between others in the Navy, 984. 
 to strike flag to enemy, 980. 
 to strike or assault superior officer while in execu- 
 tion of his duties, 979. 
 Authority of officers after loss of vessel, 996. 
 Bad-conduct discharge by summary court-martial, 
 
 1006. 
 Battle; avoiding, or displaying cowardly conduct 
 during, 980. 
 deserting duty or station during, or enticing others 
 
 to do so, 980. 
 failing to encourage inferiors to fight courageously, 
 980. 
 to seek encounter or to assist other vessels, 9S0. 
 neglecting to join on signal for, 980. 
 
 to prepare for, 980. 
 negUgence in obeying orders during or when pre- 
 paring for, 980. 
 treacherously yielding or crying for quarter, 980. 
 Betraj-ing or deserting trust in time of war, or enticing 
 or aiding others to, 979. 
 corrupting person in Navy, 9S1. 
 Branding prohibited, 1034. 
 
 Bread and water; confinement on, by commanding 
 officer, as punishment. 1002. 
 may be adjudged by summary court-martial, 1006. 
 Burning public property, unlawfully, 980. 
 Buying property of United States unlawfully sold, 990 
 Capital offenses, 979-982. 
 
 punishment; imprisonment in penitentiary sub- 
 stituted for, 983. 
 Carelessness in obeying orders, 984. 
 Casualties to be reported to Secretary of the Navy by 
 
 vessels, 995. 
 Catch-aU clause, 996-1002. 
 
 Certificate; delivering less property or money than 
 called for in receipt or, 990. 
 making or deUvering without knowing truth of; 
 with intent to defraud, 990. 
 Challenge to fight duel; sending or accepting, 984. 
 Chaplains to conduct divine services on Sunday, 979. 
 Citizenship of men to be entered in ship's books, 995. 
 Civilians punishable under, for acting as spies, etc., 982. 
 Claims against United States; offenses in coimection 
 
 with, 990, 991. 
 Clothing intended for naval service; unlawfully selling, 
 
 stcaUng, etc., 990. 
 Coast and Geodetic Survey subject to, 1479, 14S0. 
 Coast Guard subject to, 1455. 
 Combinations against commanding officer, 984. 
 
 1571 
 
JXDEX. 
 
 ARTICLES FOR THE (JOVERNMENT OF THE 
 
 X.4VY— Coulimied. 
 Command, absence from without leave, 988. 
 
 power of, continues after loss or wreck of vessel, 996- 
 Commanding officer: combinations against, 984. 
 duties of, 995, 996. 
 
 duty of example and correction, 978, 979. 
 puni.shments by, 10()l'. 
 
 IHini.sltment of offenses committed by, 978, 979, 996. 
 reports required to be made by, to Secretary of the 
 
 Navy, 99."). 
 rules to be obeyed by, 995, 996. 
 temporary, puni.shments by, 1005. 
 to cause divine service to be conducted on Sunday, 
 
 979. 
 to inspect conduct of subordinates, 978, 979. 
 to suppress immoral practices, 979. 
 Commissioned officers; punishments inflicted upon 
 
 by commanding officer, 1002. 
 Conduct of personnel to be inspected by commanding 
 officer, 978, 979. 
 to the prejudice of good order and discipline, 1000. 
 unbecoming an officer and a gentleman, 998-1000. 
 Confinement; acting commanding officer may inflict 
 as punishment, 1005. 
 by commanding officer as punishment, 1002. 
 summary court-martial may adjudge, 1006. 
 Conspiracy to- defraud the United States, 990. 
 Contempt of superior officer; while in execution of his 
 duties, 984, 9S6. 
 punishable by general court-martial, 1021. 
 Conversion; money or property intended for the naval 
 
 service, 990. 
 Convicts; court-martial prisoners in civil institutions 
 
 treated as, 983. 
 Convoying merchant or other vessels, offenses con- 
 nected with, 985. 
 Corrupting person in Navy to betray trust, 981. 
 Countenancing a fraud against United States, 991. 
 Cotmterfeiting signatures in connection with claims 
 
 against United States, 990. 
 Court-martial sentence required for pimishment, 
 except as otherwise specified, 1002. 
 to investigate loss of vessel, 996. 
 Courts of inquiry; general provisions relating to, 
 1055-1057. 
 to investigate loss of vessel, 996. 
 Cowardly conduct in battle, 980. 
 Crew separated from vessel by wreck or loss; status of; 
 
 authority of officers, 996. 
 Cruelty toward subordinates, 984. 
 Culpable inefficiency in performance of duty, 984. 
 Dates of deaths and desertions to be recorded in ship's 
 
 books, 995. 
 Dealing in supplies for private benefit, 989. 
 Death; imprisonment in penitentiary substituted for, 
 983. 
 offenses punishaV)le by, 979, 980, 981, 982. 
 officer demanding trial may be sentenced to, 1012. 
 on vessel; effects to be secured for legal represen- 
 tatives, 995. 
 sentence must be confirmed by President, 1036. 
 prohibited unless speciflcaUy authorized in 
 
 articles, 1034. 
 two-thirds of members must concur in, 1034. 
 to be entered in ship's books, 995. 
 Deck courts may impose punishments under, 1308. 
 
 punishments, 1309. 
 Demanding compensation for convoying merchant or 
 other vessels, 985. 
 
 ARTICLES FOR THE (JOVERNMENT OF THE 
 
 NAVY— Continued. 
 Demanding compensation lor transportation of articles 
 
 other than gold, silver, or jewels, 985, 9SG. 
 Deprivation of liberty on shore; by commanding offi- 
 cer, as ])unishment, 1002. 
 on forei.i;n station: summary court-martial sen- 
 tence, 1006. 
 Descriptive list of men to be entered in ship's boo'<cs 
 995. ' 
 
 to accompany men transferred to other vessels, 995. 
 to be furnished men whenever sent from ship for 
 any cause, 995. 
 Deserters; in time of war, penalty for enlistment of, 994. 
 names of, recorded in ship's books, with date 0£ 
 
 offense, 995. 
 recei\Tng, entertaining, or failing to give notice of, 
 to superiors, 985. 
 Deserting duty or station in battle or enticing others 
 to do so, 980. 
 or betraying trust in time of war or enticing or 
 aiding otliers to, 979. 
 Desertion; by resignation, 989. 
 defined, 987. 
 
 enticing others to desert in time of war, 979. 
 intent to remain permanently absent, commis- 
 sioned officer, 989. 
 in time of peace; or attempting to desert; or aiding 
 
 and enticing others to, 985. 
 time of war; punislunent, 979. 
 Destniction of public property; failing to prevent, 984. 
 
 not in possession of enemy, etc., 980. 
 
 Directing the making or signing of a false muster, 985. 
 
 Discharge; no bar to court martial for certain offenses, 
 
 991. 
 
 of ship's company; vessel lost; discipline, 996. 
 
 summary courts-martial may adjudge, 1006. 
 
 Discipline; violation of, after loss of vessel; punishment, 
 
 996. 
 Discretionary pimishments, 985, 979, 981, 983-985, 990, 
 991, 994, 996. 
 limitation of, in time of peace, 1062-1064. 
 Dismissal mandatory for certain offenses, 994, 1029, 
 1031, 1064, 1287. 
 no bar to court-martial for certain offenses, 991. 
 of commissioned or warrant officer; sentence must 
 be confirmed by President, 1036. 
 Disobedience of— 
 
 General order or regulation of the Secretary of the 
 
 Navy, 985. 
 Orders; nature of the offense, 980. 
 negligence in obeying, 984. 
 whether constitutes scandalous conduct, 980. 
 Disobeying lawful orders of superior officer, 979. 
 Disrating for incompetency, by summary court- 
 martial, 1007. 
 Disrespect to superior officer while in execution of his 
 
 duties, 984. 
 Dissolute practices; commanding officer's duty to 
 
 suppress, 978, 979. 
 Distilled spirits on naval vessels only for medical 
 
 purposes, 989. 
 Di^-ine services; irreverent behavior during, 979. 
 
 to be conducted on Sundays, 979. 
 Drunkenness, 984, 986. 
 Duels; sending or accepting challenge, or acting as 
 
 second, 984. 
 Dutiable goods; importing in naval vessel, 989. 
 Duties; absence from, without leave or after expira- 
 tion of, 985. 
 
 1572 
 
INDEX. 
 
 ARTICLES FOR THE GOVERXiVIEXT OF THE 
 
 NAVY— Continued. 
 Duties; culpable inelficiency in performance of, 984. 
 e.xtra, imposed by commanding officer as pimisli- 
 
 ment. 1002. 
 extra police; summary court-martial may adjudge, 
 
 1007. 
 suspension from, by commanding officer, as 
 pimislmient. 1002. 
 Effects of deceased persons; disposition of, 995. 
 Em))ezzlement — 
 
 Decisions relating to, 997, 998. 
 Money or property intended for the naval service, 
 990. 
 on prize, 994. 
 Enemy or rebel: intercourse with, 979. 
 
 yielding or striking flag to, without authority, 980. 
 Enlisted men — 
 
 May be tried by summary courts-martial, 1006. 
 On vessels; information concerning, to be recorded 
 
 in ship's books, 995. 
 Pimishments inflicted upon by commanding 
 officer, 1002. 
 Enlisting deserters, insane or intoxicated persons, 
 
 minors, 994. 
 Enlistment; date, place, and term of to be entered in 
 
 ship's books, 995. 
 Entertaining deserters, 985. 
 Enticing- 
 Desertion in time of war, 979. 
 Others to betray or desert trust in time of war, 979. 
 to desert in time of peace, 985. 
 
 station or duty during battle, 980. 
 Entries required to be made in ship's books, 995, 996. 
 Equipments, intended for naval service; unlawfully 
 
 selling, stealing, etc., 990. 
 Escape, prisoners; acting master at arms permitting, 
 
 985. 
 Espionage act not to limi t, jurisdiction of courts-martial 
 
 under, 1484. 
 Example; commanding officers to show good, 978, 979. 
 E.xecuting a fraud against United States, 991. 
 Extra duties imposed by commanding officer as 
 punishment, 1002. 
 police duties: simimary court-martial may adjudge, 
 1007. 
 Failing to do utmost to suppress mutiny, 979. 
 to give notice of deserters to superiors, 985. 
 to inform commanding officer of intended mutiny, 
 
 979. 
 to inform superior officer of unlawful communi- 
 cation with enemy or rebel, 979. 
 to perform duties in convoying merchant or other 
 
 vessels, 985. 
 to use best efforts to prevent destruction of public 
 property, 984. 
 Falsehood, 984, 986. 
 
 False muster; making or signing, or aiding, abetting 
 or directing, 985. 
 or fraudulent claims against United States, 990. 
 receipts or certificates, 990. 
 
 statements: making or using in claims against 
 United States, 990. 
 Fines; courts-martial may adjudge, 990. 
 credited to naval hospital fimd, 1159. 
 transportation of discharged prisoners paid from, 
 1313. 
 Flogging prohibited, 1034. 
 
 Fomenting quarrels between other persons in the 
 Navy, 984. 
 
 ARTICLES FOR THE OOVERNMEXT OF THE 
 
 NAVY— Continued. 
 Foreign coimtry; bad-conduct discharge not to he 
 executed in, 1006. 
 station, deprivation of shore liberty on, by sum- 
 mary court-martial, 1(K)6. 
 Forging signatures to papers in coimection with claims 
 
 against United States, 990. 
 Fraud, 984. 
 
 against the United States, 990, 991. 
 Fraudulent claims against United States, 990. 
 
 enlistment, 996, 1000, 1222. 
 Fugitive from service or labor; pimislunent for return- 
 ing, 994. 
 Gambling, 984. 
 General courts-martial: pro\-isions relating to, 1014- 
 
 1055. 
 General offenses not specified; how pimished, 996-1002. 
 General orders of Secretary of the Navy: violating or 
 
 refusing obedience to, 985. 
 Gestures, provoking or reproacliful: use of, toward other 
 
 persons in Navy, 984. 
 Gold, silver, or jewels; transportation on naval vessel, 
 
 985, 986. 
 Harboring deserters, 985, 988. 
 Hard labor; courts-martial may adjudge, 983, 984. 
 Hazarding vessel, 980. 
 
 through negligence, 985. 
 Health of accused before summary court-martial; 
 punishment dependent upon, 1009. 
 of crew; duties of commanding officer and surgeon 
 relating to, 995. 
 Honor; commanding officer to show example of, 978, 
 
 979. 
 Immoral practices; commanding officer's duty to 
 
 suppress, 978, 979. 
 Importing dutiable goods in pubUc vessel, 9S9. 
 Imprisonment; courts-martial may adjudge, 990. 
 
 in penitentiary, 983, 984. 
 Incompetency; summary court-martial may disrate 
 
 for, 1007. 
 Inefficiency in performance of duty, 984. 
 Inhabitants on shore; offenses against, 985. 
 Insane persons; penalty for enlistment of, 994. 
 Intelligence; giving to enemy or rebel, 979. 
 Intercourse with an enemy or rebel, 979. 
 
 punishment for delivering seducing messages, etc., 
 981. 
 Intoxicants; distilled spirits on naval vessels only for 
 
 medical purposes, 989. 
 Intoxicated persons; penalty for enlistment of, 994. 
 Intoxication, 984. 
 I Irons abolished, except for safekeeping and by general 
 
 court-martial sentence, 1309. 
 Irreverent behavior during divine service, 979. 
 Jewels, gold, or silver, transporting on naval vessel, 
 
 985, 986. 
 Joining in combination against commanding officer, 
 
 984. 
 Language, disrespectful to superior officer while 
 
 executing his duties, 984. 
 Larceny, 984. 
 
 money or property intended for naval service, 990. 
 Leave, absence without or after expiration of, 9%. 
 Leaving station before being regularly relieved, 979. 
 Letters from enemy or rebel, receiving or failing to 
 report, 979. 
 punishment for delivering, 981. 
 Liberty on shore; deprivation of, by commanding 
 officer, as punishment, 1002. 
 
 1573 
 
lyoEX. 
 
 ARTICLES FOR THE GOVERVMENT OF THE 
 
 XAVY— Contiuucd. 
 Liberty on shore; on foreign station; deprivation of by 
 
 summary court martial, 1006. 
 Lighthouse Service, subject to, 1456, 1457. 
 Limitation of— 
 
 Punishments in time of peace, 1062-1064. 
 Trials; desertion in time of peace, 1060-1062. 
 general offenses, 1057-1060. 
 Log; punishments inflicted by commander to be 
 
 entered in, 1002. 
 Loss of pay by sentence of summary court martial, 1007. 
 Making false muster, or aiding, abetting, directing, or 
 
 procuring, 9S5. 
 Maltreating inhabitants on shore, 985. 
 
 personnel of merchant or other vessels under con- 
 voy, 985. 
 persons on prize, 994. 
 subordinates, 984. 
 Manslaughter, 998. 
 Marine Corps subject to, 960, 961. 
 Marines; punishments inflicted upon by commanding 
 
 officer, 1002. 
 Marking on the body prohibited as a punishment, 1034. 
 Master-at-arms, acting, refusing to receive prisoners 
 
 or suffering them to escape, 985. 
 Medical attendance; sick and disabled on naval vessels, 
 
 995. 
 Medical officers; distilled spirits on vessels to be under 
 
 control of, 989. 
 Menaces, provoking or reproachful; use of toward 
 
 other persons in Navy, 984. 
 Men received on board; entry in ship's books, 995. 
 Merchandise received on board for freight, sale or 
 
 traffic, 985, 986. 
 Merchant vessels, convoying of; offenses connected 
 
 with, 985. 
 Messages from enemy or rebel; receiving, or failing to 
 report, 979. 
 punishment for deUvering, 981. 
 Minors; penalty for unlawful enlistment of, 994. 
 Misappropriating money or property intended for 
 
 naval service, 990. 
 Misprision — 
 
 Failing to give notice of deserters to superiors, 985. 
 to inform commanding officer of intended 
 mutiny, 979. 
 of unlawful intercourse with enemy, 979. 
 to use efforts to bring offenders to punishment, 
 985. 
 Money of the United States; delivering less amount 
 than receipt calls for, 990. 
 stealing, embezzling, misappropriating, etc., 990. 
 Murder, 982. 
 Muster; falselj' making or signing, or aiding, abetting, 
 
 directing, or procuring, 985. 
 Mutinous words, uttering, 984. 
 Mutiny, mutinous assembl}-, etc., 979. 
 Naval Reserve Force subject to, 1446, 1447, 1451, 1511. 
 Navy yards or stations; trading at for private benefit, 
 
 989. 
 Neglect of duty; dismissal mandatory in certain cases, 
 
 1287. 
 Neghgence during batl-.e or when preparing for, 980. 
 
 in obeying orders, 9S4. 
 Negligently stranding or hazarding vessel, or running 
 
 upon rock or shoal, 985. 
 Oath; false statements under, in connection with 
 
 claims against United States, 990. 
 Offenses — 
 
 not specified, how charged, 1028. 
 
 ARTICLES FOR THE GOVERNl>IENT OF THE 
 
 NAVY— Continued. 
 Offenses — Continued . 
 
 not specified, how punished, 996-1002. 
 on shore, against inhabitants, 985. 
 Officers reduced to enlisted rating, 988. 
 Oppression of subordinates, 984. 
 Orders; disobeying, of superior officer, 979. 
 
 general, issued by Secretary of the Navy; violating 
 
 or refusing obedience to, 985. 
 importance of prompt obedience to, 980, 981. 
 negligence in obeying, 984. 
 
 during battle or when preparing for, 980. 
 Ordinary seaman; officer reduced to rating of, 988. 
 Ordnance, intended for naval ser-\ace; unlawfully 
 
 selling, stealing, etc., 990. 
 Passenger dying on naval vessels; effects secured for 
 legal representatives, 995. 
 on naval vessels; report of to Secretary of the 
 Navy, 995. 
 Patriotism; commanding officers to show example of, 
 
 978, 979. 
 Pajonaster to secure effects of deceased persons for 
 legal representatives, 995. 
 sign accounts of men sent from ship for any cause, 
 995. 
 Pay; summary court-martial may adjudge loss of, 
 
 1007. 
 Peace, desertion in time of, or attempting to desert. 
 
 or aiding and assisting others, 9S5. 
 Penitentiary; imprisonment in, 983, 984. 
 Perjury before general court-martial; how punished 
 1021. 
 in connection with claims against United States, 
 990. 
 Persons amenable to, 973-978. 
 
 crew of lost vessels, until discharge from service, 
 
 996. 
 discharged or dismissed from se^^^ce; trial after. 
 
 991. 
 enlisted men after expiration of enlistment, 555, 
 
 556. 
 illegal discharge revoked; jurisdiction after, 1008. 
 Petty officers may be tried by summary courts-martial 
 1006. 
 punishments inflicted upon by commanding offi- 
 cer, 1002. 
 Pledge, receiving United States property as, from 
 
 unauthorized person, 990. 
 Plimdering inhabitants on shore, 985. 
 Police duties, extra; summary court martial may 
 
 adjudge, 1007. 
 Prisons, civil; offenders may be sentenced to, 98.3, 984. 
 Prisoners; acting master-at-arms refusing to receive, 
 or suffering to escape, 985. 
 subject to discipline of institution in which con- 
 fined, 983, 984. 
 Private property; deceased persons; secured for legal 
 representatives, 995. 
 importing in naval vessels, 989. 
 inhabitants on shore; injuring in any way, 985. 
 Private reprimand by commanding officer, 1002. 
 Prize: maltreating persons on, 994. 
 money; list of persons claiming, 994. 
 removing property from, 994. 
 Procuring others to commit frauds upon United States, 
 990, 991. 
 the making or signing of a false muster, 985. 
 Profane swearing, 984. 
 
 Property of inhabitants on shore; injuring in any way, 
 985. 
 
 1574 
 
INDEX. 
 
 ARTICLES FOR THE GOVERNMENT OF THE 
 
 NAVY— Continued. 
 Provisions; frequent inspections of to be made on 
 vessels, 995. 
 precautions to be taken for preservation of, 99o. 
 wasting or permitting same, 985. 
 Provoking words, gestures, or menaces toward other 
 
 persons in tlie Navy, 984. 
 Public Healtli Service subject to, 1491. 
 Public property; buying or receiving in pledge from 
 one without authority, 990. 
 delivering less amount than receipt calls for, 990. 
 failing to prevent destruction of, 984. 
 possession or custody of; offenses committed in 
 
 connection with, 990. 
 stealing, embezzling, misappropriating, unlawfully 
 
 selling, etc., 990. 
 unlawfully destroying, 980. 
 wasting or permitting same, 985. 
 Punishments — 
 
 By commander, 1002. 
 
 to be entered in ship's log, 1002. 
 By deck courts, 1308. 
 By officer temporarily commanding, 1005. 
 By summary courts-martial, 100<5, 1007, 1309. 
 Fine and imprisonment, 990. 
 General courts-martial may inflict same as sum- 
 mary courts, 1010. 
 Limitation of. in time of peace, 1062-1064. 
 On vessels restricted, 1002. 
 Prohibited; flogging, branding, etc., 1034. 
 To be adeciuate for nature of offense, 1034. 
 Purchasing property of United States from unauthor- 
 ized person, 990. 
 Pusillanimously crying for quarter, 980. 
 Quarreling with other persons in Navy, 984. 
 Quarrels, fomenting between other persons in the 
 
 Navy, 984. 
 Quarter, pusillanimously crying tor, 980. 
 Rated men; complete lists of to be furnished Secretary 
 
 of the Navy by vessels, 995. 
 Rating — 
 
 Incompetency; summary court martial may dis- 
 rate for, 1007. 
 Of men, statement of must accompany on transfer 
 
 to other vessels, 995. 
 Reduction in by commanding officer, 1002. 
 by summary court-martial, 1006. 
 Rebel; intercourse with; punishment for unauthor- 
 ized, 979. 
 Receiving merchandise for freight, sale, or traffic on 
 naval vessel, 985, 986. 
 or entertaining deserters, 985. 
 stolen goods; buying, etc., property of the United 
 States iUegally sold, 990. 
 Receipts; delivering less property or money than 
 receipt calls for, 990. 
 making or delivering without knowing truth of, 
 990. 
 Records required to be kept by commanding officers 
 
 of vessels, 995, 996. 
 Recruiting officers enlisting prohibited classes, 994. 
 Reduction— 
 
 In rating by commanding officer, 1002. 
 by summary court-martial, 1006, 1007. 
 , 01 officer to another office, 988. 
 to enlisted rating, 988. 
 
 confirmation of sentence, 1045. 
 Refusing obedience to lawful regulation or general 
 order of Secretary of the Navy, 985. 
 
 ARTICLES FOR THE GOVERNMENT OF THE 
 
 NAVY— Continued. 
 Refusing or failing to detect, apprehend and bring to 
 punishment all offenders, or to aid all persons 
 for that purpose, 985. 
 to receive prisoners; acting master at arms, 985. 
 Regulations of Secretary of the Navy; violating or 
 
 refusing obedience to, 985. 
 Repeated offenses, 1003, 1004. 
 Report of casualties to he furnished Secretary of Navy 
 
 by vessels, 995. 
 Reprimand, private, by commanding officer, 1002. 
 Reproachful words, gestures, or menances toward 
 
 other persons in Navy, 984. 
 Resignation, acceptance of necessary before quitting 
 
 duties, 989. 
 Respect due commanding officer; combinations to 
 
 lessen, 984. 
 Retired officers subject to, 631. 
 Rocks or shoals; nmning vessel on, 980. 
 
 through negligence, 985. 
 Scandalous conduct tending to the destruction of good 
 morals, 984, 986, 998, 1028. 
 whether disobedience of orders constitutes, 980, 986. 
 Secretary of the Navy; regulation or general order of; 
 violating or refusing obedience to, 985. 
 to be furnished complete list of persons on board 
 vessels, 995. 
 Seditious words; uttering, 984. 
 Seducing messages from enemy; pimishment for 
 
 delivering, 981. 
 Selling property intended for naval service, imlaw- 
 
 fuUy, 990. 
 Sending or accepting challenge to fight a duel, 984. 
 Setting fire to puljlic property or otherwise unlawfully 
 
 destroying, 980. 
 Ship's books; entries required to be made in, 995, 996, 
 log; punishments inflicted by commander to be 
 entered in, 1002. 
 Shoals or rocks; running vessel on, 980. 
 
 through negligence, 985. 
 Shore- 
 Liberty; deprivation of, by commanding officer, 
 as punishment, 1002. 
 on foreign station, deprivation of by summary 
 court martial, 1006. 
 Offenses on, against inhabitants, 985. 
 Sick or disabled men; separate compartment for on 
 
 naval vessels, 995. 
 Signatures; forging in connection with claims against 
 
 United States, 990. 
 Signing false muster, or aiding, abetting, or procuring, 
 
 985. 
 Silver, gold, or jewels; transporting on naval vessel, 
 
 985, 986. 
 Sleeping upon watch, 979. 
 
 Solitary confinement by commanding officer as punish- 
 ment, 1002. 
 summary coiu-t-martial may adjudge, 1006. 
 Spies, 981. 
 Spirits, distilled; allowed on vessels only for medical 
 
 purposes, 989. 
 Station and duty; absence from without leave or after 
 expiration of, 985. 
 leaving before being regularly relieved, 979. 
 Statute of limitations; desertion in time of peace, 
 1060-1062. 
 general offenses, 1057-1060. 
 Stealing, 984. 
 
 money or property intended for naval service, 990- 
 
 1575 
 
INDEX. 
 
 ARTICLES FOR THE GOVERNMENT OF THE 
 
 NAVY— Continued. 
 Stores, medical; distilled spirits on naval vessels, 989. 
 or supplies; dealing in for private benefit, 989. 
 subsistence, intended for naval serWce; unlawfully 
 selling, stealing, etc., 990. 
 Stranding vassel, 980. 
 
 through negligence, 985. 
 Striking flag to enemy, 980. 
 
 other persons in the Navy, 984. 
 superior oilicer while in execution of duties of his 
 office, 979. 
 Subordination; commanding officers to show example 
 
 of, 978, 979. 
 Subsistence stores; intended for naval service; unlaw- 
 fully selling, stealing, etc., 990. 
 Suffering prisoners to escape; acting master at arms, 
 98.5. 
 vessel to be stranded or run upon rocks or shoals or 
 improperly hazarded, 980, 985. 
 Summary courts-martial — 
 
 Pro\isions relating to, 1005-1010. 
 Punishments, 1006, 1007, 1309. 
 Sunday; di\'ine services to be conducted on, 979. 
 Superior officer — 
 
 Contempt or disrespect to, while in execution of 
 
 his duties, 984, 986. 
 Definition of, 980, 986. 
 Disobeying orders of, 979. 
 FaiUng to inform of intended mutiny, 979. 
 Striking, assaulting, etc., 979. 
 Supplies; dealing in for private benefit, 989. 
 Surgeon; duties relating to health of crew, 995. 
 
 to report concerning health of accused sentenced 
 by simimary court-martial, 1009. 
 Suspension from duty by commanding officer, 1002. 
 Tattooing prohibited as a pimislmient, 1034. 
 Text of, and decisions relating to, 972-1064. 
 Theft, 984. 
 Threatening to strike or assault superior officer while 
 
 in execution of his duties, 979. 
 Trading for private benefit, on vessels or at navy yards 
 
 or stations, 989. 
 Transportation of gold, silver, or jewels, 985, 986. 
 
 merchandise for freight, sale, or traffic, 985, 986. 
 Treating superior officer with contempt while in 
 
 execution of his duties, 984. 
 Trust; corrupting person to betray, 981. 
 
 deserting or betraying in time of war, or enticing 
 or aiding others to, 979. 
 Uniting with mutiny or mutinous assembly, 979. 
 Using provoking or reproachful words, gestures, or 
 
 menaces toward other persons in Navy, 984. 
 Uttering seditious or mutinous words, 984. 
 A'essels — 
 
 Articles for the government of the Navy to l)e 
 
 displayed on, 996. 
 Complete list of persons on board to be furnished 
 
 Secretary of Navy, 995. 
 Importing dutiable goods in, 989. 
 Injury to, or equipment, so as to hazard safety of, 
 
 or endanger crew, 980. 
 Log; pmiishments infUcted by commander to be 
 
 entered in, 1002. 
 Men transferred to; accounts must accompany, 
 
 995. 
 Pas.sengers on, 995. 
 
 Punishments on. by acting commanding officer, 
 1005. 
 by commanding officer, 1002. 
 restricted, 1002. 
 
 ARTICLES FOB THE GOVERNMENT OF THE 
 
 NAVY-Continued. 
 V^essels — Continued. 
 
 Receiving merchandise on board for freight, sale, 
 
 or traffic, 985, 986. 
 Records required to be kept by, 995, 996. 
 Separate compartment for treatment of sick or 
 
 disabled, 995. 
 Stranding, hazarding, or running upon rocks or 
 
 shoals, through negligence, 985. 
 SulTermg to be stranded or nm upon rocks or 
 
 shoals, or improperly hazarded, 980. 
 Trading on, for private benefit, 989. 
 Transporting merchandise, gold, silver, or jewels 
 
 on, 985, 986. 
 Wrecked or lost; court-martial or court of inquiry 
 to investigate, 996. 
 status of crew; authority of officers, 996. 
 Violating lawful regulation or general order of the 
 
 Secretary of the Navy, 985. 
 ^'i^tue; commanding officer's example of, 978. 
 War; alhes; faihng to assist vessels of, 980. 
 
 corrupting person in Navy to betray his trust, 981. 
 deUvering message from enemy, 981. 
 deserters during; penalty for enlistment of, 994. 
 deserting or betraying trust during, or aiding or 
 
 enticing others to, 979. 
 desertion in time of, 979. 
 enticing others to desert in time of, 979. 
 failing to encourage inferior officers and men to 
 fight, 980. 
 to seek encounter or to assist other vessels dur- 
 ing battle, 980. 
 giving intelligence to, or communicating with, 
 
 enemy or rebel, 979. 
 neglecting to join on signal for battle, 980. 
 
 to prepare for action, whenenemyin sight, 980. 
 negUgencein obeying orders during battle or when 
 
 preparing for, 980. 
 spies, pimishment of, 981. 
 time of, construed, 981. 
 
 yielding or cowardly conduct during battle, 980. 
 Warrant officers; punishments inflicted upon by com- 
 manding oflicers, 1002. 
 Wasting ammunition, provisions, or other property, 
 
 or permitting same, 985. 
 Watch, sleeping upon, 979. 
 When on shore plundering, abusing, or maltreating 
 
 inhabitants, or injuring their property, 985. 
 Words, mutinous or seditious; punishment for utter- 
 ing, 984. 
 provoking or reproachful, use of toward other 
 persons in the Navy, 984. 
 Wreck or loss of vessels; authority of officers over crew 
 after, 996. 
 ARTICLES OF WAR: 
 
 See Army; Articles for the Government of the Navij: 
 
 Courts-martial; Marine Corps. 
 Command when different corps of Army happen to 
 
 join: Marine officers, etc., 1544, 1545. 
 Deserters from Navy or Marine Corps; punishment for 
 
 retaining in Army, 1544. 
 Enlisted men transferred from Army to Navy or Ma- 
 rine Corps, 555. 
 General provisions, 442-444, 1544, 1545. 
 Marine Corps; officers may serve on Army courts-mar- 
 tial, 1544. 
 subject to, 960, 961. 
 
 when detached for service with Army, 1544. 
 Naval personnel not subject to, except in special in- 
 stances, 442, 443. 
 
 1576 
 
INDEX. 
 
 ARTICLES OF WAR— Continued. 
 
 Naval personnel not '■ubject to, except as specifically 
 
 provided, 1544. 
 Navy medical personnel serving with Army, subject 
 
 to, 1421. 
 Offenses against, punishable by naval courts-martial, 
 
 1544. 
 Persons subject to, 1544. 
 ARTIFICIAL LIMBS: 
 
 Allowance of, to disabled personnel, 1156, 1157, 1181, 
 1217. 
 ARTS: 
 
 Commission of Fine Arts; duties, 1559, 1560. 
 ASSASSINATION: 
 
 Mailing matter tending to incite, 1340, 1341. 
 ASSAULT: 
 
 Attempting or threatening to commit; punishment 
 
 for. Navy, 979. 
 Intent to commit any felony, 1349. 
 
 rape, 1349. 
 Mail custodian, oflense against, 1339. 
 Maiming, etc., 1350. 
 Postal cleric, oflense against, 1338. 
 Pimishment for assaulting other persons in Navy, 984. 
 superior officer, Navy, 979. 
 ASSAULT AND BATTERY: 
 Definition of, 981. 
 
 Striking other persons in Navy, 984. 
 ASSEMBLY: 
 
 Mutinous; punishment for, Navy, 979. 
 ASSIGNMENT: 
 
 Claims against United States, 1093. 
 Contracts with United States, 1117. 
 Retirement annuities, etc., civil employees, 1543. 
 Wages, naval service, 573, 892. 
 ASSIMILATED RANK: 
 
 Warrant officers, 704. 
 ASSISTANTS: 
 
 See Chiefs of bureaus; Navy mail clerks. 
 Authority to act for head of department, 194, 422. 
 Chief of Naval Operations, 1418. 
 
 Chiefs of bureaus, 362, 466, 1222, 1224, 1261, 1280, 1284, 
 1418. 
 authority of, 213-214. 
 ' pay of, 371, 372. 
 status and powers of, 377. 
 Civil engineers, appointment, 531. 
 pay, 803. 
 rank, 1428, 1474. 
 Construed to mean only statutory assistant, 213. 
 Dental surgeons, appointment, etc., 1421. 
 Heads of departments, authority of, 213. 
 Judge Advocate, 223. 
 Judge Advocate General, 1418. 
 Messengers, 205, 209. 
 Naval constnictors, 506. 
 
 appointment, 506, 1408, 1428. 
 pay, 793, 802. 
 promotion, 1266. 
 rank, 677, 1266, 1427, 1428. 
 Paymasters, appointment, 469, 470, 1407. 
 bonds, 474. 
 
 commanding officer not required to act as, 574. 
 defined, 497. 
 pay, 793, 802. 
 
 promoted to passed assistant paymasters, 471 . 
 rank, 676. 
 Secretary of the Navy, appointment, 1204. 
 duties, 1217. 
 general provisions relating to, 333, 334. 
 
 ASSISTANTS— Continued. 
 
 Secretary of the Navy, Supreme Court reports and 
 
 digests furnished to, i;565. 
 Surgeons; appointment, 461-464, 1427. 
 
 detail as assistant to Bureau of Medicine and Sur- 
 gery, 466. 
 pay, 793, 802. 
 precedence; not disturbed by act of August 29, 
 
 1916; 1480, 1481. 
 promotion 464, 12.51. 
 
 rank and precedence, 673, 1273, 1426, 1480, 1481. 
 ASSOCIATIONS: 
 
 Membership fees and expenses of pubUc officers; re- 
 strictions on, 1371. 
 ASYLUMS: 
 
 General provisions relating to, 1159-1163. 
 Naval; estabUshment of authorized, 11.59, 1160. 
 ATLANTA: 
 
 Penitentiary; products used by naval forces, 1519, 1520. 
 ATTACHMENT: 
 
 Retirement annuities, etc., civil employees, 1.543. 
 Wages of enlisted men, 573, 574. 
 ATTAINDER: 
 
 Bills of, defined, 73. 
 
 forfeiture of citizenship rights by desertion, 1078. 
 ATTEMPTS: 
 
 See Articles for the government of the Navy; Crimes. 
 To defraud, investigation of, 217. 
 ATTEST: 
 
 Powers of attorney; assignment of wages; duties of 
 commanding officer, 573, 892. 
 ATTORNEY: 
 See Counsel. 
 Assisting deserters, 790. 
 Contracts; parties submitting bids may have attorneys 
 
 present at opening, 1110. 
 Court of inquiry proceedings; right of party under in- 
 vestigation, 1056. 
 Fees not to be deducted by accounting officers, naval 
 
 cases, 1272. 
 Notaries public appearing before executive depart- 
 ments, 1295. 
 Practicing before departments; advertising by, 1411. 
 Prosecuting claims, procuring contracts, etc.; pubUc 
 
 officers not to act as, 1332, 1333. 
 PubUc officers accepting fee as, before courts-martial, 
 
 departments, etc., 1.333. 
 Records not furnished to, for use in court, 356. 
 ATTORNEY GENERAL: 
 See DepartmeTit of Justice. 
 Argument of cases in courts, 322. 
 Coimsel furnished to departments investigating claims' 
 
 220. 
 Court decisions binding on until reversed, 320. 
 Court of Claims cases; departments must furnish in- 
 formation to, 220. 
 District attorneys and marshals supervised by, SZi. 
 General provisions relating to, 281-326. 
 
 supervision of litigation involving the Govern- 
 ment, 281. 
 Jurisdiction with relation to accounting officers, 311- 
 
 320. 
 Navy Department to be furnished legal advice by, 321. 
 Opinions; accounting officers bound by, 318. 
 constitutionahty of statutes, 321. 
 decisions relating to, 29.5-321. 
 foreign law; will not construe, 299. 
 form of request for, 307-309. 
 heads of departments requiring, 295. 
 hypothetical questions, 299-301. 
 
 1577 
 
INDEX. 
 
 ATTORNEY GENERAL— Continued. 
 
 Opinions ; Judge Advocate (ieneral's opinion must 
 accompany requests for, 309, 321. 
 judicial (|uestions; will not answer, 306. 
 jurisdiction doubtful, will answer question, 321. 
 Members of Congress desiring, 281, 303. 
 naval officer desiring, as to acceptance of civil 
 
 appointment, oSO. 
 obiter dicta, 311. 
 President rcciuiring, 282. 
 publication of, 326. 
 
 question must arise in administration of depart- 
 ment, 299-307. 
 question must be one of law, 296-299. 
 reasons for declining to answer certain questions 
 
 320, 321. 
 subordinates to render for officers of departments, 
 
 323. 
 title to lands purchased by United States, 282. 
 weight of, 310, 311, 322. 
 who may request, 295, 296. 
 will not review decisions of departments, 302. 
 President may require opinion of, S3. 
 Supreme Court reports and digests distributed by,1365. 
 AUCTION: 
 
 Sale of old naval material, 1190, 1204. 
 AUDITORS: 
 
 See A ccounting officers. 
 AUSTRI.'V-HUNGARY: 
 
 Termination of war with; date fixed for certain pur- 
 poses, 1557-1559. 
 AUTHENTICATION: 
 
 Records desired for use in court, 426, 427. 
 State laws and records, 429, 430. 
 AUTHORIZED: 
 
 Construed as mandatory, 1203. 
 AUTHORIZED ENLISTED STRENGTH: 
 
 Apprentices additional to authorized number, 536, 
 
 1248, 1249, 1478. 
 Daily average, 537, 1396. 
 Deficiencies may be supplied by reservists on active 
 
 duty, 1548, 1549. 
 Definition of, 537, 1478. 
 Hospital corps additional to, 1419. 
 Increased during national emergency, 1463, 1528. 
 Marine Corps, 919, 920, 1416, 1548. 
 distribution in grades, 1463. 
 number authorized by personnel act, 1271. 
 permanently authorized, 1548. 
 Men detailed to nautical school in Philippines, addi- 
 tional to, 1297, 1298. 
 furloughed without pay additional to, 1436. 
 sentenced to discharge not included, 536, 1423, 
 1463, 1478. 
 Naval Flying Corps additional to, 1437. 
 Navy, 534-539, 1478, 1511. 
 
 general provisions relating to, 534-539. 
 Number of line officers based on total, 1549. 
 Permanent number not affected by act of July 11, 1919, 
 1528. 
 strength not reduced by act of June 4, 1920, 1549. 
 Reservists on active duty counted as part of, 1548, 1549. 
 Total authorized enlisted strength, definition of, 537. 
 AUTOMOBILES: 
 
 See Vehicles. 
 AUTOPSIES: 
 
 .\uthority of naval medical officers to perform, 460, 461. 
 AUXILIARY: 
 
 Reserve, Naval Reserve Force, 1452, 1453. 
 Service, active duty, naval reserve officers, authorized 
 in, 1549. 
 
 AUXI LI ARY— Continued . 
 
 Vessels; officers and men of must belong to Naval Re- 
 serve Force, 1448. 
 AVERAGE: 
 
 Authorized number of enlisted men, 537, 1396. 
 AVIATION: 
 
 Active duty authorized of reserve officers in, 1.549. 
 
 Advisory committee for aeronautics; appointment, 
 duties, etc., 1402. 
 
 Allowances not increased for, 1513. 
 
 Claims for damages caused by naval aircraft: settle- 
 ment of; reports, 1545. 
 
 Coast Guard personnel instructed at Navy schools, 1456 
 
 Detail of officers and enlisted men for, 1437-1440. 
 
 Jurisdiction of Army and Navy defined, 1554. 
 
 Naval Flying Corps, 1437-1441. 
 
 Pay, 817, 818, 865, 1403, 1404. 
 
 Promotion of officers commissioned for aeronautic 
 duties only, 1439. 
 AWNINGS: 
 
 Estimates and appropriations for. Navy, 1103. 
 BAD-CONDUCT DISCHARGE: 
 
 Civilian clothing furnished, 1107. 
 
 Illegal; sentence set aside by Secretary of the Navy, 
 1008, 1009. 
 
 Not to be executed in foreign coimtry, 1006. 
 
 Summary court-martial may adjudge, 1006. 
 
 War risk compensation excluded by, 1500. 
 BADGES: 
 
 Military societies; wearing of by naval personnel, 1216, 
 1224, 1273, 1280, 1299. 
 
 Naval Reserve Force; unauthorized wearing of, 1447. 
 BAIL: 
 
 Arrest of naval officer while out on, 1026. 
 
 Court-martial jurisdiction over man released on, 63, 64. 
 BANDS: 
 
 See Marine Band; Naval Academy. 
 
 Marine Band not to compete with civilians, 1463, 1464. 
 
 Navy, not to compete with civilians, 1304, 1411, 1412. 
 BANKS: 
 
 Depositing public money in, contrary to law, prohib- 
 ited, 1098. 
 BASE PAY: 
 
 Definition of, 848, 849, 865. 
 BATTALION: 
 
 Separate or detached; commanding officer of may con- 
 vene summary courts-martial, 1441. 
 BATTLE: 
 
 See Articles for the government of the Navy: War. 
 
 Advancement of officers for conduct in, 453, 454, 734- 
 736, 921, 933, 1289. 
 
 Cowardly conduct during; punishment. Navy, 980. 
 
 Desertion during, 9S0. 
 
 Distinguished conduct, enlisted men during; reward. 
 512, 1275. 
 medals of honor, 512, 1402, 1.521-1523. 
 
 Highly distinguished conduct in conflict with enemy; 
 thanks of of Congress for, 736. 
 
 Memorial to officers who rendered highly distinguished 
 service, 1314, 1315, 1559. 
 BATTLESHIPS: 
 
 See Vessels of the Navy. 
 
 Naming of, 1261, 1262. 
 
 State interference with, 49. 
 BELLIGERENTS: 
 
 Property of, 38. 
 BENEFITS: 
 
 Defined; includes retirement for disability, 602. 
 BETRAYING TRUST: 
 
 In time of war, or enticing others to, 979. 
 
 1578 
 
INDEX. 
 
 BETRAYING TRUST— Continued. 
 
 Punishment for endeavoring to corrupt person in 
 Navy, 981. 
 BEYOND SEAS: 
 
 See Foreign shore duty. 
 Definition of; foreign shore duty pay, 1275. 
 Pay for shore duty, officers. Navy, 818-821, 1302. 
 Shore duty, naval officers under personnel act, 1267. 
 BIDS: 
 
 See Contracts. 
 
 Sale of naval vessels; deposit to accompany, 1192. 
 BIENNIAL REGISTER: 
 
 Data to be furnished for, 228, 1235, 1236. 
 BIGAMY: 
 
 Punishment for, 1354. 
 BILL: 
 
 See Injunction. 
 
 Of attainder; definition, 73. 
 
 Forfeiture of citizenship rights, 1078. 
 Of exchange, premium on sales of, credited to "Pay, 
 
 miscellaneous," 1222. 
 Of health, estimates and appropriations for. Navy, 
 
 1103. 
 Of rights, accused, waiver of protection, 121, 122. 
 constitutional amendments establishing, 116. 
 BINDING: 
 
 See Printing and binding. 
 BLACKSMITH: 
 
 Ratings established in Navy, 1494, 1495. 
 BLANK BOOKS: 
 
 Work to be done at Government Printing Office, 1525. 
 BLANKS: 
 
 Public Printer to furnish to departments, 1278. 
 BLUE BOOK: 
 
 Data required for biennial register of employees, 228, 
 
 1235, 1236. 
 Printing and distribution of, 1235, 1236. 
 BOARDS: 
 
 See Examinations; Examining boards; Retiring boards. 
 Academic board. Naval Academy, 751, 753, 754. 
 Advisory, to assist appointing power, 95. 
 Army, marine serving with; jurisdiction to review, 961. 
 Expenses of commissions and inquiries not to be paid 
 
 without special appropriation, 1105. 
 Foreign hydrographic surveys to be pubUshed only 
 
 after report of, 1106, 1237. 
 Illegally constituted; retiring, 971. 
 Inquiry, Naval Acadamy; investigation of midship- 
 men, 1286. 
 Inspection and survey of naval vessels, 1190. 
 Interdepartmental social hygiene; creation of, etc., 
 
 1517, 1518. 
 Investigation, oaths administered to witnesses, 217. 
 Irregularities not goverened by rules applicable to 
 
 courts, 69. 
 Jurisdiction of courts over proceedings, examining 
 
 board, 728. 
 Labor employment, navy yards; mandamus proceed- 
 ings against, 780. 
 Majority vote, board of visitors, as to details to Naval 
 Observatory, 1276. 
 naval examining Ijoard, 721. 
 two-thirds required for promotion by selection, 
 1432. 
 Medical — 
 
 Appointments as acting ensigns, 1435. 
 
 in Naval Reserve Force, 1445. 
 Convened on foreign stations, 707, 1472. 
 Naval surgeons, defined; means medical officers, 
 463. 
 
 BO ARDS— Continued . 
 Medical— Continued. 
 
 Naval surgeons; examinations for promotion, 707- 
 710. 
 number of members, 70S. 
 President's action on, 72.5-728. 
 retirement of officer not recommended for pro- 
 motion by, 594. 
 Secretary of the Na^T may act for President, 
 1481, 1482. 
 Promotion, acting ensigns to lieutenant (junior 
 grade), 1436. 
 Naval Reserve Force, 1445. 
 Secretary of the Navy may act on, for Presi- 
 dent, 1481, 1482. 
 Survey; transportation of enlisted men discharged, 
 875, 1274, 1275. 
 More than one officer required to constitute, 708. 
 Naval engineers; to report upon use of patented arti- 
 cles, 776. 
 Plucking board for retirement of naval officers, 1266. 
 Precedence of line and start members, 704. 
 President's action, .596, 616, 725-728, 1481, 1482. 
 
 revocation of, 619, 630, 734. 
 Promotion; physical examination, 707-710. 
 Quasi judicial, 596. 
 
 Reconsideration of action on own initiative, 621. 
 Repairs to vessels, reports by, 776, 777. 
 Retiring; Judge .\dvocating General's duties relating 
 to, 1186, 1187. 
 Marine Corps, 963, 964. 
 Navy, 598-617. 
 Revocation of President's action on, 619, 630, 734. 
 Samples of tobacco for Navy examined by, 1250. 
 Secretary of the Navy to convene; examination for 
 assistant paymaster, 470. 
 for report concerning foreign hydrographic sur- 
 veys, 1106, 1237. 
 for selection of officers for promotion, 1430, 1431 , 
 Selection for promotion, 1430-14.33. 
 President's action on, 1433. 
 records of officers examined by, 722, 723. 
 Supervisory: examinations for promotion, 724. 
 Survey; precedence of line and staff members, 704. 
 
 value of enemy vessels seized, 1477. 
 Unauthorized; expenses of not payable, 1316. 
 Visitors, Naval Academy, 1197, 1458. 
 Naval Observatory, 1276. 
 BOATSWAINS: 
 
 See Warrant officers. 
 BOILERS: 
 
 Steam; purchase of for Navy, 1182, 1183. 
 BONA FIDE: 
 
 Home or residence; definition, 876. 
 BONDS: 
 
 Acknowledgment, 483. 
 Acting disbursing clerks, 1315, 1316. 
 Alteration of, 484. 
 
 Amount; biennial examination into sufficiency of, 486, 
 1247. 
 duties of officer empowered to fix, 1247. 
 may be increased by President, 1098. 
 Navy mail clerks and assistants, 1387, 1388. 
 officers of Supply Corps, 474. 
 Secretary of the Navy to fix; civilian storekeepers, 
 533. 
 Approval, 486-487. 
 
 duties of officer having power of, 1247. 
 naval officers' pay commences on date of, 829. 
 Certificate of sufficiency, 483. 
 
 54641°— 22- 
 
 -100 
 
 1579 
 
INDEX. 
 
 BONDS- Continued. 
 
 Civilian storekeepers required to give, 533. 
 Condition of, 4S7-l<JO. 
 Conflict oflaws, 490-491. 
 Construction of, 490, 491. 
 
 Contractors; certified check accepted in lieu of, 1298. 
 copartners not received as sureties for each other, 
 
 1114. 
 copies of, furnished laborers and material men on 
 
 public works, 1227, 1228. 
 defaulters in previous contracts not received as 
 
 sureties, 1114. 
 not received as sureties for each other, 11 M. 
 principal or surety defaulting; subsequent bids re- 
 jected, 1114. 
 protection of laborers and material men, 1227, 122S. 
 required to furnish, 1112. 
 
 suit against siu-eties for liquidated damages, 1113. 
 Copies of for use in suits, 427, 428, 1227, 1228. 
 Date, 4.S0. 
 
 from which takes effect, 211, 480, 481. 
 IMsbursing — 
 Clerks, 209. 
 
 applicable to temporary substitutes, 131.5, 1316_ 
 deputy, premium chargeable on, 211. 
 Officers: delinquency, notice to sureties, time for 
 bringing suit, 1199. 
 Duplicate checks issued; sureties required, 1098, 1099. 
 E.xamination, biennial, of ofTicial, 486, 1247. 
 E.xpense of furnishing not chargeable to Government, 
 
 211,495. 
 E.xpiration of office; pending appointment of successor, 
 
 1247. 
 Forgery of, 1322. 
 Form, 481-484. 
 
 departure from statutory requirements, 48-3-484. 
 General provisions relating to, 474-496. 
 Head of department may demand without statutory 
 
 authority, 211,476, 477. 
 Intention of parties, 481. 
 Liability of— 
 
 Officer; insurer of funds, 487. 
 Principal and sureties continues until appointment 
 of.successor, 1247. 
 not affected by neglect of other officers, 1247. 
 Liberty or other United States bonds accepted in lieu 
 
 of sureties, 1523, 1.524. 
 Married women as sureties, 484, 485. 
 Misrepresentation; sureties induced to execute, 485. 
 Names of parties, 482, 483. 
 Naval officers disbursing public moneys, 1095. 
 Navy mail clerks and assistants, 1306, 1387, 1388. 
 Necessity of furnishing before entering upon duty, 477- 
 
 480. 
 New — 
 
 Appointment; effect of, 496. 
 Effect of failure to furnish, 496. 
 
 of giving, on liability of sureties, 493, 494. 
 Officer giving, not entitled to receive old bond, 495. 
 Required in Supply Corps, 496. 
 Officer's term expired; successor not appointed, 1247. 
 Panama Railroad, 1.368. 
 Parties jointly and severally bound, 483. 
 Pay of officer commences on approval of, naval service, 
 829. 
 prior to furnishing, disbursing officer, 211, 478-480, 
 829. 
 Premium; amoimt chargeable by surety companies re- 
 stricted, 13.55. 
 not to be paid by United States, 1355. 
 rate chargeable, 211, 495, 496. 
 
 BONDS— Continued . 
 
 Property loaned to military schools; Secretary of Navy 
 
 to require bond for, 1277. 
 Public moneys; definition of, 492, 493. 
 Regulations can not change officer's liability under, 211. 
 Renewal of, 486, 1247. 
 Retroactive, 481. 
 
 Sale of naval vessels; parties bidding mast furnish, 1 IS2. 
 Seal omitted; elTect of, 482. 
 
 re(iuired, 481,482. 
 Special agents for disbursement of public moneys, 1095. 
 Storekeepers on foreign stations; naval officers detailed 
 
 as, 579. 
 Strictissimi juris; lialiility of sureties, 491. 
 Sufficiency of sureties: biennial examination into, 1247. 
 Suit— 
 
 .Vgainst delinciuent officer and sureties, 1072. 
 
 Statute of limitations, 1199. 
 Supply Corps, 474-496. 
 
 new commissions not to affect, 681. 
 Sureties, 484. 
 
 companies acting as, 485, 486, 1228-1230, 1355. 
 
 discharge of, 494, 495. 
 
 liability of, 491-495. 
 
 delinquent officer retained in office, 494. 
 
 Liberty or other United States bonds accepted in 
 lieu of, 1523, 1524. 
 
 married women, 484, 485. 
 
 release of, 495. 
 
 sufficiency of ; biennial examination, 1247. 
 
 suit against delinquent officer, 1072. 
 Surety companies accepted; provisions relating to, 485, 
 486, 1228-12.30. 
 
 premium chargeable by, 1355. 
 Temporary appointment, 483. 
 
 United States; accepted in lieu of sureties, 1.52:<, 1524. 
 Voluntary, 211, 476. 
 Witnesses, 483. 
 
 Who are required to give, 475-477. 
 BONUS: 
 
 Payment of $60 on discharge, 877, 878. 
 
 BOOK OF ESTIMATES: 
 
 See Estimates. 
 
 BOOKS: 
 
 See Ephcmeris and Nautical Almanac; NaiUical Alma- 
 nac; Naval Observatory; Navy Register; Observations; 
 OfflciaJ Register; Printing andbinding; Statutesaf Large. 
 
 Blank; work to be done at Government Printing 
 Office, 1525. 
 
 Compliments of officers not to accompany distribution 
 of publications, 1236. 
 
 Departmental publications furnished Library of Con- 
 gress, 1273, 1274. 
 transferred to Library of Congress or District of 
 Columbia public library, 1280. 
 
 Destroying, removing, stealing, or attempting to do so, 
 1:335, 1330. 
 
 Distribution— 
 
 By executive departments, 1239. 
 
 Of departmental publications, 1384, 1385. 
 
 Estimates and appropriations for. Navy, 1103. 
 
 Exchange of documents and, 1239. 
 
 Gifts to naval vessels; acceptance and care of, 1305. 
 
 Government publications, ownership of, 1236. 
 
 Hydrographic Office publications; preparation and 
 sale of, 1236, 1237, 1543. 
 
 Illustrations in; restrictions on, 1284. 
 
 Libraries of departments. Naval Academy, etc., to be 
 furnished Government publications, 1240. 
 
 Nautical Almanac, 393. 
 
 1580 
 
INDEX. 
 
 BOOKS— Continued. 
 
 Xautical; prepared and sold by Hydrographic Office, 
 
 390. 
 Navy Regulations; copy to be furnished officers, 7S7. 
 Obscene; importing or transporting, 1347. 
 Official use; delivered to successors, 12.36. 
 Report to Congress of cost, distribution, etc., of de- 
 partmental publications, 1556. 
 Required in duplicating processes; Public Printer to 
 
 furnish to departments, 1278. 
 Restrictions on departmental publications, 1284. 
 purchase of, 1073. 
 
 law books, books of reference, etc., 1261. 
 Secretary of the Navy custodian of, 352. 
 Secret codes, etc.; negligently permitting same to be 
 
 removed, etc., 1483. 
 Supreme Court reports; distribution of, 1365. 
 Titles of documents ordered printed by Congress, 1300. 
 BOUNTY: 
 
 -Assignment of, by enlisted men, 573. 
 Clothing, enlisted men. Navy, 876, 877, 1203. 
 
 on second enlistment, 1403. 
 Enlistment; refund of, on discharge, 1292, 1294, 1298. 
 Lands, supervision of, 395. 
 
 Sinking of enemy vessels; laws granting, repealed, 1268. 
 BOXER UPRISING: 
 
 Held to be a time of war, 981. 
 BOXES: 
 
 Estimates and appropriations for, Navy, 1 103. 
 BOYS: 
 
 Enlistment of, in the Navy, 534. 
 "BRANCH:" 
 
 Not synonymous with "department," 192. 
 BRANDING: 
 
 Prohibited in the Navy, 1034. 
 BRAZIL: 
 
 Naval officers appointed to office in; leave of absence, 
 etc., 1399. 
 BREAD: 
 
 Baked for Navy under contract, 1115. 
 BREAD AND WATER: 
 
 Confinement on, may be adjudged by summary com-t- 
 
 martial, 1006. 
 Solitary confinement on, inflicted by commanding 
 officer as punishment, 1002. 
 BREAKING AND ENTERING: 
 
 Compartment of vessel, etc., used by mail service, 1.338. 
 Post office, 1338. 
 
 Vessels ; punishment for, 1352, 1353. 
 BREVETS: 
 
 Marine Corps, 931-933. 
 BRIBERY: 
 
 Judges, jurors, witnesses, etc., 1336. 
 United States officer, 1325, 1326, 1334. 
 BRIGADE: 
 
 Commanding officer may convene summary courts- 
 martial, 1441. 
 general court-martial, 1442. 
 Marine Corps, 936. 
 
 Philippine Islands; status and discipline of, 955. 
 BRIGADIER GENERALS: 
 
 Additional number officers promoted to grade of, 1459. 
 Appointment of, 1459. 
 
 line; permanent staff officers not eligible, 1460. 
 Commodores rank with, 662. 
 Number of, Marine Corps, 1458. 
 Rank with relation to rear admirals of the lower half, 
 
 66.5-667, 1501. 
 Senior staff officers. Marine Corps, to have rank, pay, 
 and allowances of, 1460. 
 
 BUILDINGS: 
 
 See A ppropriations; Contracts; Navy BuiUing: Public 
 
 'properly. 
 Condemnation ofland for, 1199, 1490, 1491. 
 Construction of; disbursing agents, 201. 
 Contract not to overobligate appropriation for 
 
 erection or repair, 1116, 1331. 
 Contractors to give bond for protection of laborers and 
 
 material men, 1227, 1228. 
 Defined, 285. 
 
 District of Columbia; Government-owned; reports to 
 Congress concerning, 1553. 
 laws applicaljle within, 332. 
 Draping in mourning, prohibited, 1220. 
 Estimates of appropriations required for, 1102. 
 Foreign country; erection by United States, 280. 
 Land for; condemnation proceedings, 1199, 1490, 1491. 
 leased by Navy; improvements to become property 
 
 of lessor, 1508. 
 not to be purchased without a specific law autlior- 
 
 izing, 1117. 
 rented by United States, 285. 
 Naval hospitals; purchase and erection of, 1159, llfiO. 
 Navy Department; supervision of, Potomac Park, 
 
 1502, 1503. 
 Plans to accompany estimates submitted to Congres.s, 
 
 1102. 
 Public building commission to control office space in 
 
 District of Columbia, 1-524, 1525. 
 Rented — 
 
 Annual report to Congress in estimates, 1191. 
 District of Columbia: others may be rented instead 
 of ones occupied, 1187. 
 reports concerning, 1218, 1:591, 1.543. 
 specific appropriation required, 1181, 1182. 
 Restrictions on erection of, etc., 1116. 
 Sale of by executive departments, 1516. 
 Site for not to be purchased without specific appropri- 
 ation, 1116. 
 Temporary; held not "public building,"' 2s0. 
 Title to and jurisdiction over lands purchased for, 282. 
 Transfer to Public Health Service, 1526, 1.5.59. 
 BULLETINS: 
 
 Pubhcation of by Hydrographic Office; numlier of 
 copies, 12.38. 
 BUNTING: 
 
 Purchase without advertising, 1113, 1115. 
 BURDEN OF PROOF: 
 
 Candidate under examination for promotion, 720, 
 Line of duty cases, 612. 
 BUREAU OF EFFICIENCY: 
 
 - Assistance to be furnished to, 1469, 1470. 
 BUREAUS: 
 
 See Chief Constructor; Chief of Naval O perations; Chiefs 
 of Bureaus; Engineer in Chief; Judge Advorale General; 
 Paymaster General; Surgeon General. 
 Appropriations — 
 
 Accounts to show expenditures under each. 1 102, 
 
 1103. 
 To be kept separate in Treasury, 1 104. 
 Transferred for expenditure by bureau procuring 
 suppUes or services, 1409, 1.5.36. 
 Attorney General may require information from in 
 
 Court of Claims cases, 221. 
 Chief clerks, duties of, 209. 
 
 to administer oaths of office, 1215. 
 Consolidatioh of two under one chief, 379. 
 Construction and Repair; appointment of chief, 37S. 
 assistant, 1418. 
 model tank for vessels under jurisdiction of, 1250. 
 
 1581 
 
IXDEX. 
 
 BIREAUS-Continucd. 
 
 Contingent funds; annual report of expenditures from, 
 22'>. 
 
 restrictions on use of; written order re(|uired, llO.'i. 
 Creation of, statutory authority required, 359. 
 Kngineering; appointment of chief, 379. 
 
 assistant to chief, 12S4. 
 
 name of Sfeam Knpineering changed to, l.')4S. 
 Kquipment; appointment of chief, 377. 
 
 duties transferred and bureau abolished, i:}97, 139S. 
 Kstiraates of e.xpenses, 385. 
 
 Hydrographic Office attached to Bureau of Naviga- 
 tion, 12.W5. 
 Line and stalT bureaus, 378, 672. 
 Marine Corps held not to be, 957. 
 Medicine and Surgery; appointment of chief, 380. 
 
 detail of assistant to, 466. 
 Navigation; appointment of chief, 377. 
 
 assistant chief, 1222. 
 
 Hydrographic Office attached to, 387, 1236, 1237. 
 Navy Department; creation and designation of, 357. 
 
 duties ot, 357, 359, 360. 
 
 grouping of in divisions, 360. 
 
 Judge Advocate General's office not different from 
 359. 
 
 ^^arine Corps not one of, 359. 
 
 Navy Pay Office at Washington is not one of, 3.59. 
 Ordnance: appointment of chief, 377, 378. 
 
 assistant to chief, pay and duties, 1261. 
 Provisions and Clothing; name changed to Supplies 
 and Accounts, 1218. 
 
 Records; custody of, 361. 
 
 Stall and line bureaus, 378, 672. 
 
 Steam Engineering; name changed to Engineering, 
 
 1548. 
 Supplier and Accounts; appointment of chief, 379. 
 assistants, 1224, 1271, 1272, 1280. 
 money accounts to show direct and indirect 
 
 charges, 1365, 1366. 
 name changed to, 1218. 
 overhead charges; how distributed, 1398. 
 property accounts to be kept, etc., 1203. 
 report to Congress of supplies on hand, etc., 1203. 
 ship 's stores profits accounted for to, 1359. 
 witness fees and mileage paid by, 1310. 
 Supplies purchased and issued without regard to 
 
 bureaus, 1216. 
 Transfer of supplies between, with and without charge, 
 
 1203. 
 Yards and Docks; appointment of chief, 377. 
 appropriation for maintenance; use of, 1530. 
 assistant, 1418. 
 
 power plants at navy yards and stations consoli- 
 dated under, 1282. 
 (luarterly reports of automobiles made to, 1546. 
 BURGLARY: 
 ISreaking^ 
 
 and entering vessel, i:?52, 1353. 
 into compartment of vessel, etc., used by mail 
 service, 1338. 
 post office, 1338. 
 BURIAL,: 
 
 See Funeral. 
 
 P2xpenses; enlisted men furloughed without pay, 537. 
 naval personnel, 537, 905, 90G, 1103, 1305, i:W3, 1498. 
 National cemeteries, 1103. 
 BUTTER: 
 
 Purchase of for Navy, 1113, 1115. 
 CABINET OFFICERS: 
 See Heads of departments. 
 
 CADET ENGINEERS, 768-770, 795,806. 
 CA»IPS: 
 
 Marine Corps training camps, 1464. 
 CANDIDATES: 
 
 Sco KTamininy boards; Appointments. 
 CANDLES: 
 
 Estimates and appropriations for Navy, 1 103. 
 CANNON: 
 
 Balls, loan or gift of, to societies and municipalities, 
 
 1249. 
 Sale of smooth-bore, for experimental purposes, 1193. 
 Tests of, for ilavy, 1195. 
 CAPITAL PUNISHMENT: 
 
 Court-martial sentence must be confirmed by Presi- 
 dent, 1036. 
 Mitigation of death sentence, 10.54, 1055. 
 Naval offenses, 979-982. 
 
 Officer demanding trial may be sentenced to, 10' 2. 
 Prohibited in the Navy imless specifically authorized, 
 
 1034. 
 Two-thirds of court-martial must concur in sentence, 
 
 1034. 
 AVar Risk Insurance benefits excluded by, 1500. 
 CAPTAIN OF THE YARD: 
 
 Additional pay as aid, 670. 
 CAPTAINS: 
 
 Army; lieutenants in the Navy rank with, 062. 
 Marine Corps; number of, 1458. 
 Navy; advancement to admiral or vice admiral during 
 war, 1481. 
 number in staff corps, 1427, 1428. 
 pay, 791, 798, 1.301, 1:302. 
 promotion by selection to; line, 1430. 
 
 staff corps, 1513. 
 proportion of inline, 1425. 
 rank with colonels, 662. 
 retired, considered as having been retired with 
 
 rank of rear admiral, 912. 
 retirement of, for piu-pose of creating vacancies, 1265. 
 CAPTAIN S CLERK: 
 
 Civil appointees not allowed at sea; naval officers de- 
 
 taUedas, 1182. 
 Pay, 794, 806. 
 
 Service held to be naval service, 588. 
 CAPTURES: 
 
 See Vessels of the Nary. 
 
 General pro\isions relating to, 1130, 1131, 1137-1147. 
 Power of Congress to regulate, 38. 
 Vessels belonging to alien enemies, 1477. 
 CARNAL KNOWLEDGE: 
 
 Female under sixteen, 1349. 
 CARPENTERS: 
 
 See Warrant officers. 
 CARRIAGES: 
 See Vehicles. 
 CARTS: 
 
 Estimates and appropriations for, Navy, 1103. 
 CASHIERED: 
 
 Dismissal distinguished, 1032. 
 CASUALTIES: 
 
 Report of to Secretary of the Navy, 995. 
 CATCH-ALL CLAUSE: 
 
 Articles for the Government of the Navy, 996-1002. 
 CATALOGUE: 
 
 Government publications, 1234. 
 CEMETERIES: 
 
 Burial in national cemeteries, 1163. 
 
 Entombments in Arlington Memorial Amphitheater, 
 
 1559. 
 Lands acquired for, 285. 
 
 1582 
 
INDEX. 
 
 CENSUS: 
 
 Guam and Samoa; Alaska, etc., 1525. 
 CERTIFICATES: 
 
 Discliarge, in true names, 1379, 1380. 
 False, punishment for making or using, 990, 1332. 
 Sufficiency of bonds, 483. 
 CERTIFIED COPIES: 
 
 See Copks. 
 CERTIORARI: 
 
 E.xamining board's proceedings can not be reviewed 
 by civil courts, 728. 
 CHALLENGE: 
 
 Right of accused before court-martial, 131, 1018. 
 CHAPEL: 
 
 Naval Academy; use of for memorials, 1314, 1315. 
 CHAPLAINS: 
 
 See Acting officers; Pay of Xaval Establishment; Staff 
 
 officers. 
 Advancement in rank, 679, 680. 
 Annual reports to Secretary of the Navy, 503. 
 Dutj- to conduct divine services on Sunday, 979. 
 Examination of acting chaplains for appointment as^ 
 
 1396. 
 Form of worship, 502. 
 
 Number and appointment of, 501, 502, 1396. 
 Pay and allowances, 793, 802, 1301, 1302, 1303. 
 Promotion, 1396, 1397. 
 Qualifications, 502. 
 Rank, 679, 680, 1268. 1396. 
 Restriction on number commissioned in any one year, 
 
 1397. 
 Total number of, and acting, 1396. 
 CHARACTER: 
 Evidence, 1024. 
 
 right of accused to process for obtaining witnesses, 
 1.33. 
 CHARGES: 
 
 Investigation of, 217, 340. 
 Right of accused to be informed of, 129, 131. 
 CHARGES AND SPECIFICATIONS: 
 
 Accused furnished with, at time of arrest, 131, 1025. 
 
 Additional; restriction on trying, 1025, 102S, 1029. 
 
 Amendment of, 1028. 
 
 "Charge'' and "specification" explained, 1026, 1027. 
 
 Decisions relating to, 1026-1029. 
 
 Defective; acquittal bar to second trial, 120. 
 
 Description of accused, 1028. 
 
 Fatally defective; proceedings and sentence a nullity, 
 
 lOOS, 1009. 
 Joinder of offenses, 1028. 
 Lesser offense included in charge, 1029. 
 Objections to, waived by accused, 1045 
 Offenses not specificaUy provided for, how charged, 
 
 1028. 
 Perjury; averments necessary, 431. 
 Scandalous conduct tending to the destruction of good 
 
 morals, 1028. 
 Subornation of perjury; necessary averments, 431. 
 Sufficiency; jurisdiction of civil courts, 402. 
 question for decision of court-martial, 1028. 
 technical averments, 1027. 
 CHARTS: 
 
 Hydrographic Office to provide, 387. 
 
 number of copies to be printed, 1238. 
 PUot charts; Hydrographic Office, 388. 
 Preparation and sale of; Hydrographic Office, 390,1236, 
 Publication of foreign hydrographic surveys restricted, 
 
 1103. 
 Sale of at cost, 1182, 1184, 1236. 
 
 Wilkes's Expedition; plates loaned to Navy Depart- 
 ment for printing, 380. 
 
 CHECKAGES: 
 
 Lost property, 788, 1223. 
 Pay— 
 
 Of deserter for amount of reward, unauthorized, 
 
 1064. 
 Of naval estabUshment; court-martial sentence re- 
 quired, or statutory authority, 1004. 
 Of officer in arrears, 1072. 
 
 Prescribed by statute; jurisdiction of accounting 
 officers, 233. 
 CHECKS: 
 
 Amount less than one dollar; punishment for drawing 
 
 and issuing, 1337. 
 Certified, accepted in lieu of bond or written guaranty, 
 
 naval contracts, 1298. 
 Duplicates issued for lost or stolen, 1098, 1099. 
 Larceny of, 1350. 
 Lost — 
 
 Or stolen, allowance to owner, 274. 
 Suits for, 236. 
 Outstanding — 
 
 More than three years, 276-278. 
 Report of, 279, 1417. 
 CHEESE: 
 
 Navy; contracts may be made for longer periods than 
 one year, 1113. 
 
 purchases without advertising, 1113. 
 CHIEF BOATSWAINS: 
 
 See Commissioned w arrant officers. 
 CHIEF CARPENTERS: 
 
 See Commissioned warrant officers. 
 CHIEF CLERKS: 
 
 Construed to mean statutory position only, 213. 
 Duties of, 209. 
 Held to be clerks, 206. 
 
 Oaths administered by, accounts for travel, appoint- 
 ments, etc., 1215, 1386. 
 CHIEF CONSTRUCTOR: 
 Appointment of, 378, 1222. 
 
 Assistant, detailed from Construction Corps, 1418. 
 Title of: Chief of Bureau of Construction and Repair, 
 670,671. 
 CHIEF GUNNTIRS: 
 
 See Commissioned warrant officers. 
 CHIEF MACHINISTS: 
 
 See Commissioned warrant officers. 
 CHIEF NURSES: 
 
 Na^-y Nurse Corps, female, 1303, 1304. 
 CHIEF OF NAV.AL OPERATIONS: 
 
 Allowances same as general in Army, 1512. 
 
 Rank and title; pay; orders; assistants; retirement, 
 1418. 
 
 Succession to duties of Secretary of the Navy, 1401. 
 
 Tenure; appointment; duties, 1401. 
 CHIEF PAY CLERKS: 
 
 See Commissioned warrant officers. 
 
 Grade established; pay, etc., 1406, 1407. 
 CHIEF PHAJaaUACISTS: 
 
 See Commissioned warrant officers. 
 
 Numberandappolntmentof,etc.,1419, 1420. 
 CHIEF SAILMAKERS: 
 
 See Commissioned warrant officers. 
 CHIEFS OF BUREAUS: 
 
 See Bureaus; Chief Constructor; Engineer in Chief ^ 
 Chief of Naval Operations; Judge Advocate General'. 
 Paymaster General; Surgeon General. 
 
 Absence of, 213, 214, 364, 466, 1222, 1224, 1261, 1280, 1284, 
 1418. 
 
 Allowances, same as Army, 1512. 
 
 Appeals to head of department from decisions of, 362. 
 
 Appointing power exercised by, 207. 
 
 1583 
 
IXDEX. 
 
 CHIEFS OF BUREAUS— Continued. 
 Appointments, how made, 362-364, 378. 
 
 recess of Senate, 99. 
 Assistants, 362. 
 
 authority of, 213-214. 
 
 Construction and Repair, 1418. 
 
 Engineering, 1284. 
 
 Judge .Vdvocate (leneral, 1418. 
 
 Me<licine and Surgery, 466. 
 
 Naval Operations, 1418. 
 
 Navigation, 1222. 
 
 Ordnance, 1261. 
 
 pay of, 371,372. 
 
 status and powers of, 377. 
 
 Supplies and Accounts, 1224, 1271, 1272, 1280. 
 
 Yards and Docks, 1418. 
 Commencement of term, 364. 
 
 Commission to take testimony of, for use in court, 424. 
 Construction and Repair; appointment, 378, 1222. 
 
 assistant, 1418. 
 
 boards to report upon repairs to vessels, 776. 
 
 rank and title of, 670, 671. 
 
 rank on retirement, 672, 673. 
 Contracts; bids for foreign supplies to be opened in 
 presence of, 1114. 
 
 bids may be rejected for specified causes, 1114. 
 
 supplies and transportation, 1111. 
 
 to be executed in foreign country, 1114. 
 Court-martial jurisdiction over, 62, 366, 977. 
 Custodians of books of record and accounts, 361. 
 Death, resignation, absence, or siclcness of, 213, 214, 
 
 364, 460, 1222, 1224, 1261, 1280, 1284, 1418. 
 Deficiencies prohibited; removal from office for 
 
 incurring, 1104, 1105. 
 Department of Justice to aflord all necessary legal 
 
 services for, 323. 
 Designation of one to act for another, 379. 
 Dismissal by sentence of court-martial, 839. 
 Dual status of, 366. 
 Engineering; acting as Secretary of the Navy, 333. 
 
 appointment of, 379. 
 
 assistant, pay and duties, 1284. 
 
 rank and title of, 670, 671. 
 
 rank on retirement, 672, 673. 
 Equipment; appointment of, 377. 
 
 office abolished, 1397, 1398. 
 Estimates; required to furnish to Secretary of the 
 
 Na\-y, 385. 
 Expiration of term, 365. 
 Extra compensation disallowed for performing duties 
 
 temporarily, 217. 
 (General provisions relating to, 362-377. 
 Judge Advocate General; appointment, duties, rank 
 
 and pay, etc., 1186, 1187, 1512. 
 Medicine and Surgery, appointment of, 380. 
 
 assistant to, 466. 
 
 rank and title of, 670, 671 . 
 
 rank on retirement, 672, 673. 
 Navigation; acting as Secretary of the Navy, 333. 
 
 appointment of, 377. 
 
 assistant to; pay and duties, 1222. 
 
 claims for reimbursement of private property lost 
 or damaged, 1492-1494. 
 
 not authorized to change membership of court- 
 martial, 1018. 
 Office held not to be a "grade" in the Na\'y, 366, 379. 
 
 he'd to be a "grade" in the Navy, 367. 
 Offices are not civil, 365. 
 
 Orders have force as emanating from Secretary of the 
 Navy, 361. 
 
 CHIEFS OF BUREAUS-Continued. 
 
 Ordnance; acting as Secretary of the Navy, 333. 
 
 appointment of, 377, 378. 
 
 assistant, pay and duties, 12(;i. 
 Pay, 8:59, 1264, 1302, 1512. 
 
 after retirement, 377. 
 
 assistants, 371, 372. 
 
 decisions relating to, 371, 372. 
 
 same as .\rmy, 1512. 
 Permanent commission and pay; authority for repealed, 
 1380. 
 
 commissioning of incumbent; effect of, 379. 
 Precedence; decisions relating to, 367-371. 
 President does not act through, 500. 
 Rank, 670-672, 1264, 1512. 
 
 decisions relating to, 367-371. 
 
 made permanent; effect of, 379. 
 
 on retirement, 372-376, 672, 673. 
 
 same as Army, 1512. 
 Removal by President, 365. 
 
 by sentence of court-martial, 366. 
 Reports; heads of departments shall direct whether to 
 be printed, 1238. 
 
 number of copies which may be printed, 1238. 
 Responsibility for official acts, 350. 
 Retain permanent office in Navy, 366. 
 Retired; continuance in office, 376. 
 
 officer; eligibility for appointment 363, 364. 
 Retirement, 363, 372-377, 13a3. 
 
 after termination of office, 376. 
 
 decisions relating to, 372-377. 
 
 ordered before retiring board, 376. 
 
 titles after, 376. 
 
 vacancy created by, 379, 672. 
 
 temporary appointment to fill, 215, 364, 379. 
 Secretary of the Navy may perform duties of, 351, 361. 
 Signatmes; facsimile stamps, 351 . 
 Staff officers eligible for appointment as, 362, 378. 
 
 exempt from sea service after expiration of term 
 578. 
 Status of, 365-367. 
 Steam Engineering; name changed to E:ngineering, 
 
 1548. 
 Supervision of; exclusive duty of Secretary of the 
 
 Navy, 360. 
 Supphes and Accounts; appointment of, 379. 
 
 assistants, 1224, 1271, 1272, 1280. 
 duties of, 1224. 
 pay, 1271, 1272. 
 
 bond, 476. 
 
 property returns audited by, 1223. 
 
 of storekeeper at Naval Academy rendered to, 
 1304. 
 
 rank and title of, 670, 671. 
 
 rank on retirement, 672, 673. 
 
 report of receipts and expenditures to be rendered 
 by, 1304. 
 Temporary vacancies, performance of duties, 213, 214, 
 364, 466, 1222, 1224, 1261, 1280, 1284, 1418. 
 
 retirement of incumbent; how filled, 215, 364, 3/9. 
 Tenure of office, 362, 364, 365. 
 Titles, 670, 671. 
 
 after retirement, 376. 
 
 decisions relating to, 367-371. 
 
 made permanent in certain cases, 379. 
 
 retired or returning to active service, 672. 
 Yards and Docks, appointment of, 377, 1294. 
 
 assistant, 1418. 
 CHIEFS OF DIVISIONS: 
 Held to be clerks, 203, 206. 
 
 1584 
 
INDEX. 
 
 CHIEF WARRANT OFFICERS: 
 
 See Commissioned warrant officers; Warrant officers. 
 Designated as commissioned warrant officers, 512. 
 CHILDREN: 
 
 Dependent; death gratuity paid to, 1546, 1547. 
 Officers and enlisted men; transportation furnished for, 
 1535, 1536. 
 CHINESE: 
 
 Citizenship of, 138, 139. 
 
 Naval forces employed in preventing immigration of, 
 1081. 
 CHURCHES: 
 
 Chaplains to conduct worship according to forms of, 
 502. 
 CITIZENSHIP: 
 
 Decisions relating to, 137-141. 
 Deserter, convicted; forfeiture of, 573. 
 
 pardoned to restore, 84. 
 EnUsted men, additional pay: General Order No. 
 34; 862, 867, 868. 
 entered in ship's books, 995. 
 jurisdiction of accounting officers, 2.39. 
 Expatriation, right of American citizens, 140. 
 Falsely claiming; punishment for, 1328. 
 Forfeiture of, by desertion, 73-74, 981, 1077, 1078. 
 
 power of Congress to provide, 140. 
 Midshipmen, 571. 
 
 NatuiaUzation of aUens in naval service, etc., 1505-1507. 
 Naval officers, 571. 
 
 Reserve Force, 1443. 
 Officers of vessels of the United States, 571. 
 Power of Congress, 36. 
 
 Retired officer, naturalized, residing abroad, 572. 
 Territories and insular possessions, 113. 
 Virgin Islands, 1472. 
 CIVIL, AUTHORITIES: 
 See Courts. 
 Arrest of— 
 
 Deserters by, 118. 
 
 Naval offenders for deUvery to Navy, 1311. 
 Copies of records desired for use in court proceedings, 
 
 424. 
 Coroners; right to hold inquest on United States 
 
 reservation, 293. 
 Court-martial jurisdiction over persons in custody of, 
 
 63, 64. 
 Delivery to, of persons in Navy, 67, 68, 107. 
 Enlisted man arrested by; pay during absence, 871, 950. 
 Hospital Corps member arrested for practising medi- 
 cine without license, 460. 
 Interference by States with Federal instrumentalities, 
 
 47. 
 Jurisdiction, commitment of insane to Saint Eliza- 
 beths Hospital, 789. 
 health reports in naval cases, 461. 
 illegal acts by military officers, 54. 
 on naval reservations, 292-294. 
 persons in naval ser\ace, 65. 
 soldiers during war, 42. 
 United States property, 289-292. 
 with relation to courts-martial, etc., 1047-1051. 
 Liability of commanding officer for illegal acts, 1003. 
 Mihtary officer awaiting trial by; pay, 825. 
 Naval offender in custody of; effect on statute of limita- 
 tions, 1059. 
 officers imprisoned by, dropped from roUs, 1.503. 
 prisoners desired as witnesses by, 403. 
 Offenses violating both military and civil law, 120. 
 Officer undergoing trial by; commutation of quarters, 
 
 700, 701. 
 Prisoners, civilian, confined on naval vessels, 576. 
 
 CIVIL AUTHORITIES -Continued. 
 
 Service of process on persons in naval or civil service, 
 
 292, 293. 
 State jurisdiction over Federal officers, 51. 
 CIVIL EMPLOYEES: 
 
 See Civil Establishmenl. 
 CIVIL EMPLOYMENT: 
 
 Coimsel before courts-martial, etc.: piililic officers not 
 
 to accept fee as, 1333. 
 Enlisted men, restricted; competition with civiUans, 
 
 352, 1304, 1411, 1412, 1463, 1404. 
 Legality of accepting, by naval officer, not subject for 
 
 Attorney General's opinion, 580. 
 Marine Band; restrictions; competition with civilians, 
 
 1463, 1464. 
 Naval- 
 Officers accepting diplomatic or consular office, 579. 
 and enlisted men, holding offices in foreign 
 
 countries, 1399, 1416, 1502, 1556. 
 holding private employment, 576. 
 not allowed, with certain private companies, 
 1250. 
 Personnel not to hold offices in territories, 1075. 
 Reserve Force permitted to hold, 1446. 
 Navy bands not to compete with civilians, 1.304. 
 Restrictions on; douljle compensation; additional pay, 
 
 1066-1071. 
 Retired officer; eligibility for Congress, 643. 
 Secretary of VVar not in military service, 34. 
 CIVIL ENGINEERS: 
 See Assistants. 
 Advancement in rank up to lieutenant commander, 
 
 1426. 
 Appointment, 531. 
 
 Assistant to chief of Bureau of Yards and Docks de- 
 tailed from, 1418. 
 Chief of the Bureau of Yards and Docks, appointed 
 
 from, 1294. 
 Distribution of officers in grades, 1428. 
 Held to be staff corps, 685. 
 Number of, 531, 1265, 1425. 
 Pay, 794, 803. 
 Rank, 678, 1428, 1474. 
 
 and precedence of assistants, 1474. 
 CIVIL ESTABLISHMENT: 
 
 See Appropriations; Estimates; Executive departments; 
 Hours; Leave o/ absence; Pay of Civil EslaUishment; 
 Reports. 
 Absence, unauthorized; forfeiture of pay for, 1297. 
 Age, retirement of civil employees, 1536-1543. 
 
 retention in service beyond, 1539, 1540. 
 Appointments- 
 Decisions relating to, 338. 
 Heads of departments to make, 205. 
 Inspector, weigher, and measurer of fuel, 1110. 
 Members of Congress accepting consideration for 
 
 influencing, 1332, 1333. 
 Preference to discharged soldiers and sailors, their 
 
 wives, etc., 1065, 1526. 
 President making, without consent of Senate, 1072. 
 Secretary of the Navy to make, 337. 
 Appropriations; inadequate; right to pay of office, 205. 
 Increase of the Navy, etc., report of employees 
 
 under, 1272. 
 limit number and pay of employees, 205, 1104, 1180, 
 
 USS, 1384, 1409. 
 lump sum; restrictions on use of, 336, 1188, 1281, 
 
 1307, 1389, 1398, 1491, 1492, 1503. 
 naval service, used to pay; annual report of to 
 
 Congress, 1194. 
 new ships; restrictions on use of, 1281. 
 
 1585 
 
IXDEX. 
 
 CIVIL ESTABLISH>IENT-Oontinucd. 
 
 Appropriations not to l)e exceeded, IKsO. 
 Attorneys for claimants, etc.; punishment of em- 
 ployees accepting fees as, 13:52, 1333. 
 former employees not to act against United States, 
 
 224. 
 not to lie employed by heads of departments, 221. 
 Cash rewards for suggested improvements, 1514. 
 Changes in grades of clerks, 20.3, 1180. 
 Chief clerks: oaths administered by, 121.'), 1386. 
 
 to supervise, etc., 209. 
 Chiefs of iHireaus, Na\-y Department, not part of, 365. 
 
 of divisions are clerks, 203. 
 Civil engineers not part of, 532. 
 Claims against United States; oflScers, etc., interested 
 
 in, 1332. 
 Classification of employees in departments, 202. 
 Classified ser\ice; examinations for employment at 
 
 navy yards, 780. 
 Clerks held to be officers, 90. 
 Clerkships open to women, 202, l.i20, l.'i26. 
 Compensation for injuries, etc., 1467-1469. 
 
 from private parties to employees, restricted, 1470 . 
 Congress may be furnished information by, 13S8. 
 Contagious disease in family: leave granted, 1221. 
 Contingent apjjropriations not available for, without 
 
 specific authority, liss. 
 Contracts for services to be made after advertising for 
 
 proposals, 1109. 
 Contributions for political purposes, 340, 341, 783, 1180, 
 1181, 13.34, 1335. 
 presents to superiors, 1073. 
 Demotions, 1383, 1388. 
 
 Details from Government Printing Office to executive 
 departments, 1359, 1360. 
 from outside of District of Columbia; restrictions 
 
 on, 1188, 1290, 1291, 1384. 
 to other departments, disbursing clerks, 212. 
 Detectives: employment of, restricted, 1220. 
 Disability; retirement for, 1538, 1539. 
 Disbursing agents: buildings under construction, 261. 
 clerk detailed to another department, 212. 
 
 executive departments, appointment, etc., 209. 
 temporarOy absent; substitute, 1315, 1316. 
 Discharge, 338. 
 
 inefficiency; rules governing, 1383. 
 injunction to prevent, 99. 
 preference in retention, 1180. 
 procedure governing, 1388. 
 Distribution of clerks, temporary details within 
 
 department, 203. 
 Efficiency experts; restrictions on employment of, 1394. 
 
 ratings, 1383. 
 Kight-hour law, requirements for Govenunent work, 
 
 1117, 1219, 1220, 1370, 1371, 1474. 
 Employment of personal services in excess of appro- 
 priations, restricted, 1104, IISO, 1188, 1384, 1409. 
 in connection with unauthorized boards, commis- 
 sions, etc., 1105, 1316. 
 Estimate official to be designated in each department, 
 1391, 1392. 
 for civil employees paid from naval appropriations, 
 1194. 
 Enticing workmen from arsenals, etc., 1327. 
 Examinations for ajjpointment, 202. 
 
 for employment, navy yards, 780. 
 Extra duties; additional pay restricted, 217, 1066-1071 
 General provisions relating to, 189-228, 334-341, 1065- 
 
 1073. 
 Grades and number of clerks; changes in, 203, 1180. 
 
 CIVIL ESTABLISHMENT -rontinucd. 
 
 Head of department can not abolish positions, 212. 
 Holidays, 201,781,782. 
 
 allowed per diem employees, 1194, 1198. 
 days declared to be, 1224. 
 
 excluded from leave of absence, employees in 
 departments, 12G3. 
 Honorably discharged soldiers and sailors preferred, 
 
 1065, 1180, 1383, 1.324, 1526. 
 Hours of labor; executive departments, 1220, 1221. 
 Government laborers, workmen, and mechanics, 
 
 1117, 1219, 1220, 1.370, 1371, 1474. 
 suspension of work by Executive order, 782. 
 Impersonation of officer or employee, 1323. 
 Incompatible offices, defined, 1069. 
 Increasing munber of lower grade and reducing number 
 
 of higher grade, 203, 1180. 
 Inefficient employees; report to Tongress in annual 
 
 estimates, 1204. 
 Influencing legislation; services not to l)e used for 
 
 purpose of, 1,527. 
 Insular possessions: pay of employees while in transit, 
 1278. 
 sale of stores to, 1313, 1314. 
 travel of employees to and from, 782. 
 Investigation of alleged misconduct, etc., 217. 
 Lump sum - 
 
 Appropriations; explanations to accompany esti- 
 mates, 138"), 1386. 
 restrictions on employment from funds for 
 new ships, 1281. 
 Employees, 336. 
 
 drafting, technical and inspection force, Ul**, 
 
 1419. 
 navy yards and stations; number and rates of 
 
 pay fixed by Secretary, 1312, 1313. 
 restrictions on pay of, 1389, 1398, 1491, 1492, 
 1503. 
 on salaries and transfers, etc., 1389. 
 specific authorization required for, 1307. 
 Married women; wives of soldiers and sailors, 1520, 
 
 1526. 
 Medical attendance furnished, 459. 
 Members of Congress; right to communicate v ith, 
 
 individually or collectively, 1388. 
 Misconduct; investigation of, 340. 
 Naval Home; employment of beneficiaries, 1294. 
 Naval officer not eligible to hold civil office in Navy 
 
 Department, 389. 
 Naval Reserve Force eligible for office in, 1446. 
 
 not to perform duties of character performed liy, 
 1528. 
 Navy; annual report concerning mechanics and 
 
 laborers, 381. 
 Navy Department: clerks and employees; number and 
 
 compensation, etc., 334-341. 
 Navy yards and stations, appointment of master 
 workmen, 779, 780. 
 boards to report upon repairs to vessels, 776,777. 
 laborers: employment of, 780. 
 mandamus against board of labor employment, 780. 
 naval officers not to be appointed to positions, 779, 
 
 780. 
 number and pay fixed by Secretary, 1312, 1313. 
 offices may be abolished, 533. 
 Number and grades of employees; changes in, 203, 1180. 
 and pay of employees, 1104, 1180, 1384, 1409. 
 
 to be in accordance with specific appropria- 
 tions, 1188. 
 of employees in departments, 205. 
 
 disbursing clerk not appropriated for, 211. 
 
 1586 
 
INDEX. 
 
 CIVIL, ESTABLISHMENT Continued. 
 
 Number of employees in departments; extra clerks 
 during sessions of Congress, 208. 
 penalty for violating law relating to, 13S4. 
 Oath— 
 
 Of oflTice, 337, 338, 1065, 1006. 
 
 administered by chief clerks, 1215. 
 To accounts, etc., administered by chief clerks and 
 designated employees, 13S0. 
 OfiBcer includes employee, 413. 
 Offices at navy yards may be abolished, 533. 
 
 can not be abolished without statutory authority, 
 204. 
 Official Register of the United States; data contained 
 
 in, 1235, 1236. 
 PoUtical— 
 
 Considerations in employment of laborers at navy 
 
 yards, 780. 
 Contributions, 783. 
 
 constitutionaUty of statutes relating to, 340, 341. 
 forbidden, 1180, 1181. 
 
 soliciting, giving, etc.; punishment, 1334, 
 1335. 
 Opinion not ground for discharge, 783. 
 Positions can not be abolished without statutory au- 
 thority, 204. 
 Preference for employment, navy yards and stations, 
 780, 1313. 
 honorably discharged sailors, etc., 338, 780, 1065. 
 
 1180, 1383, 1524, 1526, 1530. 
 in appointment; wives of disabled soldiers, etc., 
 
 1526. 
 in retention of honorably discharged soldiers and 
 
 sailors, and widows and orphans of, 1180. 
 of persons disabled in miUtary service, 1065. 
 Presents to superiors prohibited, 1073. 
 Professors and instructors at Naval Academy; number 
 
 and compensation, 701, 1457, 1535. 
 Promotions; efficiency ratings, etc., 1383. . 
 jurisdiction of accounting officers, 242. 
 Reducing clerks of higher grade, and increasing num- 
 ber in lower grade, IISO. 
 Reduction of force; preference in retention, 338, 1180, 
 
 138;3. 
 Register of employees; data required for biennial, 228, 
 
 1235, 1236. 
 Reinstatement — 
 
 After service in National Guard and Medical Re. 
 serve Corps, Army, 14G4. 
 in Officers' Reserve Corps, 1476. 
 in war with Germany, 1530. 
 Of employees honorably discharged from military 
 service, 1524. 
 transferred to Census Office, 1526. 
 service credited for retirement, 1541. 
 Removal from office, 99, 338, 1180, 138:3, 1388. 
 Reports — 
 
 By heads of departments in cormection with re- 
 tirement, 1542, 1543. 
 To be submitted annually to Congress concerning, 
 
 227. 
 To Congress of clerks, etc., employed from naval 
 appropriations, 1194. 
 Retired officers; appointments in, 337. 
 Retirement; general provisions, 15:56-1543. 
 Right to petition Congress, or members thereof, or to 
 
 furnish information, 1388. 
 Sale of Marine Corps stores to, 1391. 
 Soldiers and sailors- 
 Discharged, preferred for appointment, and reten- 
 tion, 1180, 1383, 1526. 
 
 CIVIL ESTABLISHMENT-Continued. 
 Soldiers and sailors — Continued 
 Honorably discharged — 
 
 From war with Clermany; reinstatement, 1530. 
 Preference, 338, 1524. 
 Preferred for appointment, 780, 1065. 
 Wives of, 1180, 1520, 1526. 
 Soliciting contributions for political purposes, 1334, 
 1335. 
 for presents to superiors prohibited, 1073. 
 Subsistence for travel outside District of Columbia, 
 1394. 
 Per diem for travel outside District of Columbia, 
 1398, 1399. 
 Substitute clerk, regular employee on leave, 207. 
 Simdays excluded from leave of absence, employees in 
 
 departments, 1263. 
 Suspension of employees, 340, 783. 
 Temporary clerks, compensation of, 205. 
 employees: sessions of Congress, 208, 341. 
 vacancy, head of department or bureau; how filled, 
 212-217. 
 Transfer of employees between bureaus; explanation 
 in estimates, 1290. 
 between departments and independent establish- 
 ments, 1290, 1389, 1491. 
 to Census Office; reinstatement, 1526. 
 Transportation of, and families, in Army transports, 
 
 1298. 
 Travel to points outside the District of Columbia, 1305, 
 
 1394, 1398, 1399. 
 Two offices; restriction on double salaries, 10G6-1071. 
 Unauthorized employment prohibited, 1180. 
 
 office; no salary for, 1066. 
 Witnesses in court; actual expenses allowed, 413. 
 Women; employment of, 202, 1520, 1526. 
 CIVILIAN MARKSMANSHIP: 
 
 Director of; appointment of Marine officer as, 1465. 
 CIVILIANS: 
 
 Arrest of by miUtary authority, 57, 1387, 1478. 
 Court-martial jurisdiction, 62, 63, 973, 974. 
 CIVIL SERVICE: 
 
 See Civil Establishment. 
 
 Commission, not an executive department, 225. 
 Efficiency ratings; promotions, demotions and dismiss- 
 als; preference, etc., 338, 1383. 
 Examinations, 202. 
 CIVIL WAR: 
 
 Lost discharge; certificate in lieu of, 1203, 1204. 
 Removal of charge of desertion; issuance of discharge 
 
 certificates, etc., 1200, 1201, 1272. 
 Retirement of officers who served during, 968, 1266, 
 1282, 1293, 1312. 
 CLAIMS: 
 
 See Accounting offlcers; Court of Claims; Mistake of 
 
 fact; Mistake of law. 
 Accounting offlcers — 
 
 AUowance of, report to Congress, 1182. 
 Jurisdiction; statute of limitations, 1182. 
 Appropriation for payment exhausted; report of to 
 
 Congress, 1182. 
 Approval by head of department ; effect of, 242, 243, 244. 
 
 by Secretary of the Navy, 272. 
 Assignment of, against United States, 1093. 
 Attorneys- 
 Fees not to be deducted by accounting officers, 
 
 naval cases, 1272. 
 Prosecuting; notaries pubUc may act before de- 
 partments, 1295. 
 restrictions on, 224, 1093, 1332, 1333. 
 
 1587 
 
IXDEX. 
 
 CLAIMS— (out imicd. 
 
 Collision, naval vessels — 
 Adjustment of, i:iri8, 1359. 
 Suit in foreign country, 223. 
 Compensation for seizure of vessels belonging to alien 
 
 enemies, 1477. 
 Counsel to be furnished departments investigating, 
 
 364. 
 Court of Claims, suits against United States, 1362. • 
 Damages by Amercan forces abroad; settlement of, 
 l.")04. 
 by naval forces abroad; settlement of, 1508. 
 caused by naval aircraft; settlement of; report to 
 ■ Congress, 1545. 
 
 naval personnel; adjustment of, 1527. 
 naval vessels, settlement of, 1358, 1359. 
 Deceased personnel, Navy and Marine Corps; payment 
 
 of money due, 1305, 1306. 
 Definition of "claim or matter," 1363. 
 District courts to have jurisdiction of suits agaiiist 
 
 United Stales, 1361, 1362. 
 EfTects lost in naval service, 271, 1492-1494. 
 Enlisted men; ellects lost on vessels; permanent appro- 
 priation for payment, 1106. 
 Equitable; accounting oflRcers' jurisdiction, 235. 
 Executive departments may refer to Coiut of Claims, 
 
 i:563, 1.364. 
 Form of; lost or damaged property, naval personnel, 
 
 1493. 
 Fraudulent, 1324. 
 
 for wages, etc., 1323. 
 Heads of departments not authorized to submit esti- 
 mates for payment of, 235. 
 Legal assistance required by departmental investiga- 
 tion, 220. 
 Lost or damaged property; reimbursement of naval 
 
 personnel, 271, 1492-1494. 
 Mandamus proceedings to compel payment, 256-257. 
 Merger of in check, 277. 
 Naval pension fund; estimates of, 1103. 
 Oath administered to, for travel and other expenses, 
 1386. 
 to be taken by persons prosecuting against United 
 States, 1093. 
 Offenses connected with; punishment. Navy, 990, 991. 
 Officers, employees, etc., interested, against United 
 
 States, 1332. 
 Payment upon warrants, 276. 
 Prosecution by former Government employees, 224. 
 of, against United States; oath to be taken, 1093. 
 notaries public not disqualified, 1295. 
 public officers forbidden to accept compensa- 
 tion, 1332, 1333. 
 Reopening of accoimts; decisions relating to, 248-256. 
 Report to Congress of those allowed, 1193. 
 
 when allowed under exhausted appropriations, 
 1182. 
 Security accepted by Government, 231. 
 Set off; jiurisdiction of accounting officers, 244-246. 
 Settlement of by Treasiu'y Department, 229. 
 
 from private funds, 231. 
 Statute of limitations; checks outstanding more than 
 
 three years, 277. 
 Suit by United States to recover from delinquent 
 
 officer, 1072. 
 Tortious conduct of public officers; adjustment, 1359. 
 Travel, approval by Secretary of the Navy, 237, 238. 
 shortest usually traveled route; Secretary of 
 Navy to determine, 1315. 
 Unliquidated; jurisdiction of accounting officers, 234. 
 
 CLAIMS— Continued. 
 
 Witnesses subpcrnaed to testify before departments, 
 219, 220. 
 CLASSIFICATION: 
 
 Clerks, 202. 
 
 Naval vessels, 772, 1277. 
 CLASSIFIED SERVICE: 
 
 Examinations for employment at navy yards, 780. 
 CLEMENCY: 
 
 Members of naval court-martial may recommend, 1034. 
 Mitigation of court-martial sentences, 85. 
 CLERKS: 
 
 See Civil Establishment; Pay of Civil Establishment; 
 
 Pay of Naval Establishment. 
 Allowance of, to officers at sea; civilians not appointed, 
 
 1182. 
 Classification of, rates of pay, 204. 
 Clerk of the yard, office may be abolished by Secre- 
 tary of the Na\'y, 533. 
 Commandant's; office may be abolished by Secretary 
 
 of the Navy, 533. 
 Construed to include chiefs of divisions, chief clerks, 
 
 and disbursing clerks, 203, 206. 
 Defined; includes an employee, 413. 
 Naval Constructor's; office may be abolished by Sec- 
 retary of the Navy, 533. 
 Naval officers detailed as, at sea, 1182. 
 Paymaster's : not part of Supply Corps, 470. 
 
 subject to court-martial, 62. 
 Storekeeper's; office may be abolished by Secretary 
 ofthe Navy, 533. 
 CLOTHING: 
 
 Advertising for proposals, 1111. 
 Bounty, enlisted men. Navy, 876, 877. 
 Condemned; proceeds of sales available for expendi- 
 ture, 1108. 
 Discharged naval prisoners, 1313. 
 
 as undesirable, etc., 1107. 
 Gratuity, Naval Reserve Force; not checked on 
 
 temporary appointment to Navy, 1510. 
 Lost on vessels; reimbursement for, 271, 1106, 1492-1494. 
 Marine Corps- 
 Appropriation available for purchase of uniforms, 
 etc., to be sold at cost, 1531. 
 for reimbursing claimants for lost clothing, 
 etc., 1493. 
 Midshipmen, procurement of, 770. 
 Naval prisoners furnished on discharge, 1310, 1311. 
 Outfit- 
 On enlistment; payment of cost by minor dis- 
 charged for fraudulent enlistment, 1402, 1403. 
 On first enlistment, 1203. 
 On second enlistment, 1403. 
 Refund of. Naval Reserve Force, on discharge, 
 1444, 1447. 
 Navy, on discharge, 1292, 1294, 1298, 1402, 1403. 
 Purchase of in excess of appropriations, 1116, 1288. 
 
 Navy, contrary to law, 1324, 1325. 
 Sale of— 
 
 At cost, to officers of the Navy and Marine Corps 
 
 and midshipmen, 1521, 1531. 
 Prohibited, 1121. 
 Unlawfully selling, stealing, etc., 990. 
 CLOTHING AND SMALL STORES FUND: 
 
 Created for Navy, 1204, 1280. 
 COAL: 
 
 See Contracts; Fuel. 
 
 Alaskan; preference right to purchase for Army and 
 Navy, 1307. 
 use of for Navy, etc., 1400. 
 Mining in Alaska, for Navy, 1547, 1548. 
 
 1588 
 
INDEX. 
 
 COAL— Continued. 
 
 Transportation for Navy, American vessels, 1283. 
 in Alaska, 1393, 1394. 
 COAL DEPOTS: 
 
 Establishment of for Navy, 789. 
 COAL, PASSER: 
 
 Rating changed to fireman third-class, 1423. 
 COAST AXD GEODETIC SURVEY: 
 
 Commissioned officers eligible for membership on 
 
 naval courts-martial, 1494. 
 Employment of naval officers in surveying the coast, 
 
 1151. 
 Expenses defrayed from naval appropriations, 1479. 
 General provisions relating to, 262. 
 Laws and regulations of Navy applicable to, 1479, 1480. 
 Naval officers detailed to; subsistence, 121-5. 
 Regulations to be prescribed by Secretaries of War, 
 
 Navy, and Commerce, 14S0. 
 Service credited for longevity pay in Xa\-y, Marine 
 
 Corps, etc., 1535. 
 Transfer to Xa^■y during war or emergency; status 
 
 and rank of personnel, 1479, 1480. 
 Vessels of, and those of Fish Commission, to have 
 same relation to Navy Department, 11S6. 
 COAST DEFENSE RESERVE: 
 
 General provisions relating to, 14.>?, 1454. 
 COASTERS HARBOR ISLAND: 
 
 Quarters for personnel, training force, 1248. 
 COAST GUARD: 
 
 Commissioned officers eligible for membership on 
 
 naval courts-martial, 1494. 
 Cooperation with the Navy, 1091. 
 Duties, 1456. 
 Enlisted men appointed to Naval Academy, 743. 
 
 serving with Navy, are enhsted men of the Navy, 
 539. 
 Established: service with Navy; expenses, etc., 1400. 
 Expenses of, when cooperating with Na^'y, 1091, 1400, 
 
 14.56. 
 Instruction at aviation schools of the Navy, 14.56. 
 Laws to which subject; jurisdiction, 1455. 
 Military command by and over, 1400. 
 Navy defined to include, 1524. 
 Part of the Na\'y. rank when ser\-ing as, 705. 
 Precedence with naval officers, 14.56. 
 Rank of officers with relation to the Na^'J% 705. 
 Reimbursement for lost or damaged clothing, 1493. 1494. 
 Sale of naval suppUes to personnel of, 15.33. 
 
 uniforms, etc., to, at cost, while operating with 
 Navy, 1521. 
 Secretary of the Navy to direct when ordered by the 
 
 President, 1091. 
 Service credited to naval personnel for pay and retire- 
 ment, 1535, 1550. 
 in, not naval service, 588. 
 Status; part of the Navy, 706. 
 Titles of officers, 705, 1553. 
 
 Transfer of officers to permanent Navy, 1549, 1550 
 COHABITATION: 
 
 Male person with more than one woman, 1354 
 COLLATERAL: 
 
 Authority of pubUc officers to accept, 231. 
 COLLECTOR OF CUSTOMS: 
 Inspection of naval vessels, 260. 
 COLLEGES: 
 
 Detail of naval officers to, 435, 1184, 118.5, 1247 1248 
 COLLISIONS: 
 
 Claims against naval vessels; adjustment of, 1358, 1359. 
 unhquidated; jurisdiction of heads of departments 
 2.34-235. 
 Naval vessel in foreign waters, suit for, 223. 
 
 COLLISIONS— Continued. 
 Rules — 
 
 For preventing; certain inland waters, 1240-1246. 
 Great Lakes, etc., 1240-; 246. 
 harbors, rivers, and inland waters, except 
 Great Lakes and Red River of the North, 
 etc., 1251-1261. 
 international; high seas, 1204-1215. 
 motor boats, 13.56-1358. 
 
 Red River of the North and rivers emptying 
 into Gulf of Mexico, 112.5, 113.5, 1246, 1247. 
 Governing regattas or marine parades, 1300, 1301. 
 Vessels; duty of master; penalty, 1215, 1216. 
 COLONELS: 
 
 Appointment of major general commandant from rank 
 
 of, 1460. 
 Captains, Na\-y, rank with, 662. 
 Number of, Marine Corps, 1458. 
 
 Senior staff officers counted as, in making computa- 
 tions, Marine Corps, 1460. 
 COLORS: 
 See Flags. 
 
 Gifts to naval vessels; acceptance and care of, 1305. 
 COMBINATIONS: 
 
 Against commanding officers. Navy, 984. 
 COaOLVND: 
 
 .\bsence from without leave; punishment, Navy, 988. 
 Army and Marine Corps, 1.544, 1.545. 
 
 and Na^'y, joint forces, 443, 444, 668. 
 Coast Guard and naval vessels; President to direct,1400. 
 Commissioned warrant officers. 1267. 
 Constniction officers may exercise in the line or other 
 
 staff corps, 508. 
 Consular officers; jurisdiction over military authorities, 
 
 576. 
 Courts can not exercise, 621. 
 Crew of wrecked or lost vessel, 996. 
 Hospital ships; medical officers, 703. 
 
 validity of regulations, 785. 
 Line officers detailed to duty under staff officers, 1359. 
 Naval Reserve Force — 
 
 and regular Navy; precedence, 1511. 
 Restrictions on, 1511. 
 
 Naval AuxiUary Reser\-e, 14-53. 
 Naval vessels, 772-774. 
 
 and squadrons; rules governing assignment to, 
 
 1277. 
 how officered and manned, 775. 
 marine officer ineligible, 955. 
 President's power; limitation by Congress, 578. 
 Questions of, are military questions, 932. 
 Retired officers assigned to, in time of war, 659. 
 
 withdrawn from, 654, 655. 
 Staff officers; effeot of relative rank, 702. 
 
 rank not to confer, 1265. 
 Succession to; line officer detailed to engineering duty, 
 
 1435. 
 Warrant officers and commissioned warrant officers, 
 1267. 
 C030IANDANT: 
 
 See Major general commandant . 
 
 Clerks of, not officers or enlisted men, 534. 
 
 office may be aboUshed by Secretary of the Navy, 
 
 533. 
 pay, 794, 806. 
 service not miUtary, 588. 
 status, 903, 904, 953. 
 Mare Island Navy Yard; pay of, 1177. 
 Marme Corps, 928, 1392, 1460. 
 
 Naval station; duty of example and correction, 978,979. 
 general courts-martial convened by, 1310. 
 
 1589 
 
INDEX. 
 
 COMMAXDAXT— Continued. 
 
 N'aval station; superintendent of Naval Observatory 
 
 held to be, 391. 
 Navy yards — 
 
 and stations; construction onTiccr not eligible for 
 duty as, 507. 
 deck courts may be ordered by, 1308. 
 general courts-martial convened by, 1442. 
 oaths administered by, 1240. 
 Line officer detailed as, 779. 
 Mare Island, pay, 815. 
 Marine ofTicer ineUgible, 955. 
 C030IANDEERING: 
 See Condcmnalion. 
 
 Coal in Alaska for Army and Navy, 1307. 
 Factories, vessels, etc., during war, 1475, 1476. 
 Merchant vessels for use as transports or cruisers, 1218. 
 Ocean mail vessels for use as transports or cruisers, 1217. 
 SuppUes in time of war, 1413. 
 Vessels for naval purposes, 1467. 
 COMMANDER IX CHIEF: 
 
 Fleet or squadron; general courts-martial may be con- 
 vened by, 1310. 
 rank authorized, 1481. 
 Oaths may be administered by for purposes of naval 
 
 administration, 1240. 
 President's power,. 81-83, 773. 
 
 can not be restricted by Congress, 58, 59, 81, 578. 
 restricted by Congress; appropriations, 954. 
 President to assign command of naval vessels and 
 
 squadrons, 772, 775, 1277. 
 Secretary of the Navy executes orders of President, 342. 
 Subordinate can not be made independent of Presi- 
 dent, 82. 
 C01M3I ANDERS: 
 
 Number in staff corps, 1427, 1428. 
 
 Pay, 791, 798, 1301, 1302. 
 
 Promotion by selection to; in staff corps, 1513. 
 
 in line of Navy, 1430. 
 Proportion of in line, 1425. 
 Rank with lieutenant colonels, 662. 
 Retirement of, for purpose of creating vacancies, 1265. 
 COMMANDING OFFICERS: 
 
 See Articles for the government of the Navy. 
 Absence from command; power to convene courts- 
 martial during, 1015. 
 Acquittal by court-martial not a bar to suit against, 
 
 for damages, 1049. 
 Acting; punishments inflicted by, 1005. 
 Aid or executive of, 669. 
 
 Assignment of wages by enlisted men; power of attor- 
 ney attested by, 892. 
 BattaUons; summary court-martial ordered by, 1441. 
 Brigade; general courts-martial convened by, 1442. 
 
 summary courts-martial ordered by, 1441. 
 Civil liability for abuse of power, 1003. 
 Combinations against, Navy, 984. 
 Consular powers may be exercised by, 575. 
 Disbursements made by order of, 266. 
 Discouraging crews from selling wages, etc., 573. 
 Discretion, 1003. 
 
 Divisions; general courts-martial convened by, 1442. 
 Duty to send men to the United States on expiration 
 
 of enlistments, 555, .5.56. 
 Empowered by Sec-retary of the Navy to order courts- 
 martial, 1441, 1442. 
 Fleets; rank of admiral and vice admiral authorized, 
 
 1481. 
 Flotilla; general courts-martial convened by, 1442. 
 Foreign stations; examining and retiring boards con- 
 vened by, 1472. 
 
 COrMANDING OFFICERS— Continued. 
 Granting of honorable discharges by, 573. 
 Hospital or hospital ship; may convene courts and 
 
 inflict punishments, 1441. 
 Leave of absence and liberty granted by, 574. 
 Marine Corps; deck courts ordered by, 1308. 
 Marriages not to be performed by, 575. 
 Naval vessel; authority over all persons on board, 1442. 
 deck courts may be ordered by, 1 308. 
 duties of, 995, 9%. 
 or station; duty of example and correction , 978,979. 
 
 oaths administered by, 1240. 
 niles to be obeyed by, 995, 9%. 
 Not required to act as paymaster, 574. 
 Powers of attorney attested by; assignment of wages, 
 
 573. 
 Precedence, 669. 
 
 retired officer commanding squadron, 660. 
 Piuiislmients by, 119, 1002, 1441. 
 
 by; duty to correct subordinates, 978, 979. 
 of; for offenses, 996. 
 Rank of flag officer, 576. 
 Recommendation of warrant officers for appointment 
 
 as ensigns, 1277. 
 Regiment; summary courts-martial ordered by, 1 141, 
 Reports required to be made to Secretary of the Navy. 
 
 995. 
 Separate or detached command; summary courts- 
 martial ordered by, 1441. 
 Short allowance of rations; report to Navy Depart- 
 ment, 901. 
 Squadrons; general courts-martial convened by, 1442. 
 Staff officers communicate directly with, 670. 
 Summarj' courts-martial ordered by, 1441. 
 COMMERCE: 
 
 Detail of naval officers to foreign countries in interest 
 of, 576. 
 COMMERCE AND NAVIGATION: 
 
 General provisions relating to, 112.5-1131. 
 COMMISSARY: 
 
 Fimd, midshipmen's, 771. 
 Officer, commutation of rations paid to, 1279. 
 COMMISSION: 
 
 See Appointments; Date; Precedence. 
 
 Advancement in rank without change in grade, 102, 
 
 682, 1368. 
 Brevet, Marine Corps, 931-933. 
 Date of, 103. 
 defined, 668. 
 fictitious date, 669. 
 is date stated in, 652. 
 midshipmen on graduation, 1479. 
 precedence determined by, 1390. 
 Coast Guard and Navy, 14.56. 
 dental officers, 1421. 
 line officers, 668. 
 Naval Reserve Force, 1511. 
 staff officers, 1429. 
 promotion, officers. Navy, 1390. 
 Date stated in; conclusive upon accounting officers, 
 238. 
 pay, officers graduated from Naval Academy, 
 
 1221, 1222. 
 retired officer, 912. 
 Fine arts; duties, etc., 1559, 1560. 
 Decisions relating to, 102, 103. 
 Errors in, 685. 
 corrected, 103. 
 issuing; nail and void, 103. 
 jurisdiction of courts to correct, 834, 835. 
 Expenses of commissions and inquiries not to be al- 
 lowed, without special appropriation, 1105, 1316. 
 
 1590 
 
IXDEX. 
 
 COMIVIISSION— Continued. 
 
 Fine arts; duties, etc., 1559, 1560. 
 Form of, 1248. 
 
 recess appointment, 217. 
 Governors of Guam and Tutuila, 102. 
 Midshipmen on graduation; date of, 1479. 
 Naval Reserve Force, 1444, 1451. 
 Naval vessels kept in conxmission in time of peace, 774. 
 
 stricken from register; status of, 779. 
 Navy Department to prepare, record, and affix seal to, 
 
 1248. 
 Numbering of, for precedence purposes, 669. 
 Passed assistant surgeons to have, 1251. 
 Pay on promotion from date stated in, 830-832. 
 President's duty to issue, 102. 
 President to sign before department seal annexed, 
 
 1248. 
 Retired officers advanced in rank, 1368. 
 Revocation of recess appointment, 100. 
 Seal of department affixed to, 1248. 
 Senate adjourned; officers previously confirmed, 1072. 
 Signature of President required before departmental 
 
 seal annexed, 1248. 
 Signed by Secretary of the Navy, 102. 
 Staff officers; titles and grades contained in, 680. 
 Testimony taken by, 421. 
 
 authority to require production of records, 423. 
 chiefs of bureaus as witnesses, 424. 
 for Court of Claims, 1364. 
 Unauthorized commissions and inquiries; expenses of 
 
 not payable, 1105, 1316. 
 Withholding; after confirmation, 102. 
 officer appointed to higher grade, 652. 
 CO>13iISSIONED OFFICERS: 
 
 See Line offlcers; Officers of the Marine Corps; Officers 
 
 of the Navy; Retired officers; Staff officers. 
 Defined to include warrant officers, 1496. 
 Warrant officers are not, 511. 
 COMMISSIOXED WARR.WT OFFICERS: 
 Appointed to higher grades for war service, 1550. 
 
 may revert to former status, 1550, 1551. 
 Chief warrant officers designated as, 512. 
 Command, right of, 1267. 
 Ensigns appointed from, 1314. 
 Pay— 
 
 And allowances, 803, 1267, 1429, 1430. 
 
 of lieutenant (junior grade) and lieutenant; 
 
 creditable records, 1429, 1430. 
 not reduced by act of August 29, 1916, 1437. 
 Quarters, 1267. 
 Rank, 1267, 1314, 
 Retired; active duty; pay, 914. 
 
 creditable records, etc., 1503, 1504. 
 increased by, 913. 
 Warrant officers promoted to, 510, 1266, 1267, 1282, 
 1314, 1406, 1407, 1419, 1420. 
 C03IMISSI0NER OF PATENTS: 
 
 Departments interested to have representative before, 
 
 1251. 
 Inventions may be ordered kept secret during war, 
 
 1494. 
 Withholding of patent during war, 1501. 
 COMMISSIONER OF PENSIONS: 
 Duties of, 390. 
 Jurisdiction — 
 
 Of, and Secretary of the Navy, 1155. 
 Retirement of ci\al employees, 1538. 
 COMMITMENT: 
 
 Insane personnel. Navy, to hospitals, 788, 789. 
 COMMITTEE: 
 
 Insane persons; pensions not payabe to, 789. 
 
 COMMODORE: 
 
 Grade abolished on the active list, 447, 663, 664. 
 Omitted from grades of line officers, 1264. 
 Pay, 791, 798, 1301. 
 
 retired list, 1307. 
 Rank- 
 Changed to rear admiral, 375, 672. 
 Retired staff officers, 085. 
 With brigadier generals, 662. 
 Retirement of, 1265. 
 
 with rank of, 374, 375, 1265, 1266. 
 COMMUTATION: 
 
 Artificial limbs, 1156, 1157, 1217. 
 Defined, 902, 953, 954. 
 
 is an allowance and not pay, 953. 
 
 emolument, 892. 
 is compensation, 701, 702. 
 not pay proper, 702. 
 reimbursement, 702. 
 salary, 702. 
 Forage; Marine Corps, not aUowed, 1194. 
 
 naval officers not aUowed, 1267. 
 Nurse Corps (female) allowed, 1482. 
 Quarters, 697, 702. 
 
 agreement for exchange of quarters; unauthorized, 
 
 702. 
 amount of, 942 943. 
 
 application for quarters, necessity of, 702. 
 arrest; officer undergoing trial by court-martial or 
 
 civil authorities, 700, 701. 
 duty without troops; definition of, 702. 
 educational institution; officer detailed to, 701. 
 home, officer waiting orders or performing duty at, 
 
 700. 
 mates, same as second lieutenants, 697, 827, 1275. 
 officer attached to vessel, 699. 
 
 interned in neutral coimtry, 892. 
 retired officers detailed to educational institu- 
 tions, 440. 
 Secretary of Navy to determine when public 
 
 quarters not available, 1514. 
 temporarily absent from station, 701. 
 waiting orders, 700. 
 
 warrant officers, same as second lieutenants, 697, 
 827, 1275. 
 Rations, 893. 
 
 aUowed enlisted men and naval cadets (midship- 
 men), 1194. 
 amount of, 901, 902. 
 court-martial prisoners, 898. 
 Nurse Corps, female, 807, 808. 
 officers attached to seagoing vessel, 893-895. 
 payment to commissary officer, 902. 
 
 to messes, 1279. 
 public money, 232. 
 Sentence — 
 
 Court-martial; definition of; mitigation distin- 
 guished, 85, 1054. 
 President's power, 1053-1054. 
 Deck court, 1308. 
 General court-martial, 1051-1055. 
 Offlcers dismissed in commutation of sentence, 441 
 Summary court-martial, 1009. 
 Specific statutory authority required for payment of, 
 
 950. 
 Tickets; payment for in advance of travel, 1282. 
 COMPANIES: 
 
 Marine Corps, 936. 
 COMPENSATION : 
 
 See Effects; Pay of Civil Esiablishmerti; Pay of Navai 
 Establishment; Veteranx; War Risk Act. 
 
 1591 
 
INDEX. 
 
 COMPENSATION— Continued. 
 
 Defined; quarters, heal and lipht, commutation: in- 
 cluded, 701, 702. 
 COMPKTITIVE EX.\MIN.\TIONS: 
 
 Appointments depondinj; on results, 94. 
 Assistant surgeons; requirement held illegal, 465, 466. 
 Candidates for machinist in Navy, r2<'>s, 1269. 
 Enlisted men for appointment as midshipmen, 1472, 
 
 1473. 
 Marine Corps; to determine precedence, 1462. 
 Promotion; not authorized, 685. 
 Warrant officers for appointment as ensign, 1277. 
 COMPLIMENTS: 
 
 Public documents not to be distributed with, 1236. 
 COMPTROLLER OF THE TREASURY: 
 
 See Accounting officers. 
 COMPUTATIONS: 
 
 Marine Corps; distribution in rank, 145S. 
 final fractions, 920, 921, 1428. 
 major general commandant counted as senior to 
 
 colonel, 1459. 
 senior staff officers counted as colonels, 1460. 
 Navy; additional niunbcrs excluded, 1429. 
 disposition of final fractions, 1428, 1429. 
 times for making, 1529. 
 
 to determine niunber in each rank and grade, 1427. 
 COMPUTING MACHINES: 
 
 Sale to departments at exchange prices by General 
 Supply Committee, 1557. 
 CONCEAL: 
 
 Definition of, 790. 
 CONCURRENT JURISDICTION: 
 
 Courts-martial and civil courts, 1001. 
 CONDEMNATION: 
 See Commandeering. 
 Lands — 
 
 Expense of suit; appropriation available, 295. 
 For military piUTioses, 1490, 1491. 
 For public buildings, etc., 1199. 
 Title to and jurisdiction over, 284, 285. 
 Timber, material, supplies, etc., for the Navy, 1518. 
 CONDITIONAL: 
 
 Pardon, 86. 
 CONDUCT: 
 
 Commanding oflJcers to inspect conduct of subordi- 
 nates, 978, 979. 
 Eminent and conspicuous, marine officer, 933. 
 Enlisted men in battle; reward for, 1275. 
 In battle; advancement of naval officer for, 453, 454, 
 734-736. 
 thanks of Congress for; advancement to higher 
 grade, 736. 
 Retainer pay, Naval Reserve Force, increased for good- 
 conduct marks, 1450. 
 Scandalous; punishment for, Na\'y, 998. 
 To the prejudice of good order and discipline, 1000. 
 Unbecoming an officer and a gentleman, 625, 998-1000. 
 CONFESSION: 
 
 Evidence of, 123. 
 CONFIDENTIAL: 
 
 Books, plans, etc.; punishment for losing, 1483. 
 Information; departments not required to furnish. 
 
 Court of Claims, 221. 
 Plans; filing of in returns office, 397. 
 Records of departments, 194. 
 CONFINEMENT: 
 
 Acting commanding officer may inflict as punish- 
 ment, 1005. 
 Commanding officer may inflict as punishment, 1002. 
 Deck courts may adjudge; limited, 1308. 
 
 CONFINEMENT— Continued. 
 
 Naval officer under arrest to confine himself to certain 
 
 limits, 1029. 
 On bread and water; commanding officer may inflict. 
 1002. 
 summary court-martial may adjudge, 100(i. 
 Solitary; summary court-martial may adjudge, 1006. 
 Witnesses, to insure appearance, 425, 426. 
 CONFIRMATION: 
 
 See Appointment; Sentences. 
 
 Court-martial sentence, before execution, 1036-1051 . 
 
 Ineligible; effect of, 96. 
 
 Naval Reserve Force; requirements, 1444, 144."), 1452, 
 
 1453, 14,54. 
 Senate, appointments; constitutional provisions relat- 
 ing to, 89. 
 assent to appointment indirectly given, 96, 652. 
 CONFISCATION: 
 
 Enemy property, 40. 
 CONFLICT: 
 
 Highly distinguished conduct in conflict with enemy; 
 
 thanks of Congress, 736. 
 Of laws; bonds, 490-491. 
 CONFRONTING WITNESSES: 
 Right of accused, 129, 131, 132. 
 Waiver of right by accused, 132. 
 CONGRESS: 
 
 See Members of Congress; Senate; Senators. 
 Accounting officers' action not binding on, 247. 
 Appointments — 
 
 And promotions; constitutionality of statutes, 647, 
 
 648,681. 
 Can not control appointing power, 92. 
 Can not exercise appointing power, 92. 
 Can not require President to make, 767. 
 May prescribe general qualifications, 95. 
 Attorney General can not advise, 281. 
 
 wiU not render opinions for information of, 303. 
 Bills and resolutions; distribution to departments, 
 
 1238. 
 Can not interfere with powers of President, 58. 
 Command; can not interfere with President's power, 
 81, 578. 
 restrictions upon President's power, 954. 
 Constitutionality of statutes relating to retirement, 617. 
 Correspondence with; penalty envelopes to be inclosed 
 
 with letters from departments, 1191. 
 Court-martial proceedings re\'iewed by, 1047. 
 Extra clerks employed in departments during ses- 
 sions of, 208. 
 Influencing legislation: punishment of officers and 
 
 employees violating law against, 1527. 
 Joint committee on disposal of useless papers, execu- 
 tive departments, 1202, 1203. 
 Journals of; extracts evidence in court, 428. 
 Medals of honor presented in name of, 1521. 
 Pardoning power; general amnesty, 85. 
 Pay of officers, power to change, 97, 910, 911. 
 Petitioning: right of civil employees, 1388. 
 President can not usurp powers of, 784. 
 Rank and pay of officers may be reduced by, 97, 910, 
 
 911. 
 Reducing number of officers in Army and Navy, 1011. 
 Regulations, naval forces; delegation of power, 787. 
 Removal of officers, 635. 
 Retired officer; elegibility for, 643. 
 Retirement of naval officers; cause of, can not be 
 
 changed by statute, 620. 
 Special act, designating appointee, held unconstitu- 
 tional, 93. 
 
 1592 
 
IXDEX. 
 
 CONGRESS— Continued. 
 
 Statutes enacted by; copies furnished departments, 
 
 1235. 
 Temporary employees in office of Judge Advocate 
 
 General during sessions of, 341. 
 Thanks of— 
 
 Marine officer advanced for receiving, 933. 
 Officer promoted for receiving, 736. 
 Officers receiving during CivU War, 594. 
 
 may be advanced to rear admiral, 454. 
 Retired officer recei^'ing, restored to active list, 
 660, 661. 
 Witnesses before; protection of, 421. 
 CONGRESSIONAL DIRECTORY: 
 
 Printing and distribution of, 1235. 
 CONGRESSIONAL, RECORD: 
 
 Daily examination of to be made in departments, 1238. 
 Navy Department and Naval Observatory furnished 
 with, 1235. 
 CONQUERED TERRITORY: 
 
 Government of, 109. 
 CONSCRIPTION: 
 
 Power of Congress, 47, 70. 
 CONSENT: 
 
 Accused; does not confer jurisdiction, 125, 977, 1033. 
 Enlistment of minors, 544, 545, 54.S-551. 
 
 guardianship papers prepared by register of wiUs, 
 D. C, 1217. 
 Legislature of State; lands purchased by United 
 States, 282. 
 CONSIDERATIONS: 
 
 Defined; appointment of laborers at navy yards, 780. 
 CONSPICUOUS: 
 
 Conduct in battle, advancement of officers for, 734-736, 
 933. 
 CONSPIRACY: 
 
 Fraud against United States, 990. 
 Punishment for, 1324. 
 Seditious, 1317. 
 
 To commit offense agaiust United States, 1325. 
 CONSTITUTION: 
 
 Accused, waiver of privileges, 121. 
 AppHcatioQ of, lo the Navy, 68. 
 Attorney General authorized to construe, 321. 
 History of, 27. 
 Index to, 143-181. 
 
 Military government provided for, 68. 
 Statutes contrary to, 30, 95, 647, 648. 
 Text of, 30-142. 
 
 Whether applicable to Territories, 112. 
 CONSTRUCTION: 
 
 See Buildings; Statutes; Vessels of the Navy. 
 CONSTRUCTION AND REPAIR; 
 
 See Bureaus; Chief constructor; Chiefs of bureaus. 
 CONSTRUCTION CORPS: 
 
 See Naval constructors; Staff officers. 
 Additional pay; services imder War Department, 507 
 Advancement in rank above lieutenant commander 
 1513. 
 up to lieutenant commander, 1426. 
 Appoiutments in to fill vacancies, 506, 1408, 1428. 
 
 of officer as chief of bureau, 378, 1222. 
 Assistant naval constructors; promotion of, 1266. 
 
 to Chief of Bureau of Construction and Repair de- 
 tailed from, 1418. 
 Chief of Bureau of Construction and Repair, appoint- 
 ment of, 378, 1222. 
 Clerk of the naval constructor, office may be abolished, 
 
 533. 
 Command in the Une or other staff corps, 508. 
 
 CONSTRUCTION CORPS— Continued. 
 Detail of officers — 
 
 As aid or executive at navy yard, 508, 779. 
 As commandant of navy yard, 507, 779. 
 To duty under War Department, 507, 579. 
 To inspect ocean mail vessels, 1216. 
 To serve on boards concerning repairs to vessels, 
 776. 
 Distribution of officers in grades, 1427, 1428. 
 Duties of, 507-509, 1401. 
 
 Number of officers authorized, 505, 1266, 1408, 1425. 
 Pay, 505, 793, 802. 
 
 Promotion of assistant naval constructors, 1266. 
 Rank of officers in, 505, 677, 678, 1266. 
 distribution, 1427. 
 rear admiral authorized, 677. 
 Transfer of ensigns to vacancies in, 1428. 
 of line officers to, 1408. 
 CONSTRUCTION OF STATUTES: 
 See Statutes. 
 General principles, 9-23. 
 CONSTRUCTIVE: 
 
 Pardon, 86, 573. 
 CONSTRUCTIVE SERVICE: 
 
 Credited to naval officers for pay purposes, 1268. 
 
 to promoted officer; pay from date of rank, 838. 
 Dental officers who have gained or lost numbers, 1421 . 
 EnUsted men discharged three months prior to expi- 
 ration of enlistment, 1449. 
 Longevity pay, officers, Na\'y, based on, 821-823. 
 Not credited to officers entering Na\'y after March 4. 
 
 1913; 1390. 
 Precedence, 691, 694. 
 CONSULAR: 
 
 Courts; naval personnel tried by; counsel furnished, 
 224. 
 trial of capital offenses by, 69. 
 Officers; certificate required as to prevailing prices; 
 purchase of foreign supplies, 1114. 
 copies of records admissible in court, 429. 
 jurisdiction of, and military authorities, 57G. 
 Powers; commanding officers of Navy may exercise, 
 
 575. 
 Service; naval officer appointed in, vacates office, 579. 
 CONSULTATIONS: 
 
 Medical officers of fleets and squadrons, 466. 
 CONTAGIOUS DISEASES: 
 See Disease. 
 
 Civil employees granted leave because of, 1221. 
 CONTE]\IPT: 
 
 Court-martial witnesses; punishment, 1021, 1310. 
 Courts of iaquiry may pimish, 1055. 
 Of court; pardoning power, 84. 
 
 public officer refusing to obey subpoena or to 
 testify, 422, 424. 
 Of superior officer, punishment for. Navy, 984. 
 Witnesses in departmental investigations, 220. 
 CONTINENTAL: 
 
 Limits, United States; convening of courts-martial be- 
 yond, 1310. 
 shore duty beyond, 1275. 
 CONTINGENT FUNDS: 
 
 See A ppropriations; Estimates. 
 
 Annual report of expenditures from, 226. 
 
 Apportionment of — 
 
 Between bureaus by heads of departments, 1384. 
 To avoid deficiencies, 1104, 1105. 
 Civil establishment not to be employed from, without 
 
 specific authorization, 1105, 1188, 1384. 
 Evidence of title; expense of obtaining, 283. 
 Expenditures- 
 Jurisdiction of accounting officers, 243. 
 
 1593 
 
INDEX. 
 
 CONTINGENT FUNDS— Continued. 
 Expenditures— Continued . 
 
 Restricted; written order of head of department 
 required, 1105, 1106. 
 Expenses of commissions and inciuiries not to be paid 
 
 from, 1105. 
 Navy Department; estimates, 385. 
 Navy: expense of insane patients, 789. 
 
 use of, 828. 
 Official and clerical compensation not payable from, 
 
 llfti, ll.>vS 1384. 
 Purchases required to be made from, 1384. 
 Restrictions on purchases from: newspapers, books, pe- 
 riodicals, etc., 1073. 
 of law books, books of reference, and periodicals, 
 1261. 
 CONTINUING: 
 
 Odense; desertion; decisions relating to, 1060, 1061. 
 Pimishment; remission of, by reviewing authority, 
 courts-martial, 1052, 1053. 
 CONTINUOUS SERVICE: 
 
 Certificates; issuance of, to enlisted men, 569. 
 Pay; definition of, 8S6, 890. 
 
 enlisted men, 8S3-891, 1529, 1530. 
 under personnel act, 1269. 
 CONTRABAND OF WAR: 
 
 Purchase without advertising for Navy, 1113, 1114. 
 CONTRACTS: 
 
 Accounting officers; originals to be filed in offices of, 
 1118. 
 to be notified of appointment of inspector, weigher 
 
 and measurer of fuel, 1110. 
 to revise settlements by Navy Department, 1111. 
 Accounts of agents and contractorsto be rendered, 1111. 
 paymaster on foreign station: consular certificate 
 required as to prices, 1114. 
 Advances of public money restricted, 1099, 1100. 
 
 to contractors as work progresses, 1369. 
 Advertising; bunting may be purchased in open 
 market, 1115. 
 by firms, corporations, etc., practicing before de- 
 partments, 1411. 
 copies of to be filed in returns office. Interior De- 
 partment, Ills, 1119. 
 for foreign supplies, 1114. 
 for gim steel or armor for Navy, 1223. 
 for proposals, 1109. 
 
 by Secretary of the Navy, 1111. 
 not required in emergencies, 1109. 
 sale of useless papers on naval vessels, 1381. 
 newspapers, 1123. 
 for proposals, 1111. 
 written authority required, 1124. 
 not required for purchase of certain naval suppUes, 
 1113, 1114. 
 material for steam boilers. Navy, 11S2. 
 open market purchases and procurement of serv- 
 ices, without, 1299. 
 rates paid for, 11S4. 
 
 District of Columbia, 11S7. 
 sale of useless papers at na^-y yards and stations, 
 
 1401. 
 tobacco for Navy, 1250. 
 Agents and contractors to render accounts tor settle- 
 ment, 1111. 
 American articles preferred for Navy, 1115. 
 bunting; purchase of, in open market, 1115. 
 growth or manufacture preferred; hemp for Navy, 
 1115. 
 
 CONTRACTS— Continued. 
 
 American steel to be used in construction of naval 
 
 vessels, 1195. 
 Annual report to Congress of proposals submitted, 1 113. 
 Appointment of inspector, weigher, and measurer of 
 fuel, 1110. 
 officers to make, for Navy, 1118, 1119. 
 Appropriations — 
 
 Available after fiscal year, 1107. 
 
 Inadequate, 1116. 
 
 Not to be exceeded, 1104, 1116, 1288, 1297, 1331. 
 
 exceptions, 1288. 
 Overobligated; butter and cheese for periods more 
 than one year, 1113. 
 public buildings and improvements, 1116. 
 tobacco for four year periods, 1113. 
 Armor or gun steel, Navy; advertising and competi- 
 tion required, 1223. 
 Arrest for ; marines exempt from, 935. 
 Assignment of, unauthorized, 1117. 
 Attorney General will not render opinions for infor- 
 mation of contractors, 303. 
 Attorneys for parties submitting bids may be present 
 
 when opened, 1110. 
 Authority of law required for making, 1288, 1297. 
 Award of — 
 
 Ry items, to lowest responsible bidder. Navy, 1390. 
 Satisfactory security for performance required, 
 
 1111. 
 Tobacco, Navy, according to samples, 1250. 
 Tolowest bidder, 1111. 
 
 for foreign supplies, 1114. 
 Bidders; certified check accepted in lieu of written 
 guaranty, 1298. 
 f aiUiig to furnish required bond in specified time, 
 
 1112, 1113. 
 lowest on each item awarded contract for Na\-y 
 
 provisions, 1390. 
 may be present at tests of steam boUers, 1182, 1183. 
 must furnish satisfactory security for performance, 
 
 nil. 
 required to furnish guarantee with proposal, 1112; 
 1113. 
 to submit samples of tobacco with proposals, 
 1250. 
 Bids- 
 Advertising required for foreign supplies, 1114. 
 Competitors may inspect, 1114. 
 Copies of, to be filed in Returns Office, Interior 
 
 Department, 1118. 
 Defaulters in previous contract rejected, 1114. 
 Having nominal or fictitious prices not considered, 
 
 1114. 
 Inspection of by parties, 1114. 
 Lowest bidder t o furnish supplies and transporta- 
 tion for Navy, 1111. 
 Lowest to be awarded contract for foreign supplies, 
 
 1114. 
 Manufactiu-er or regular dealer, 1114. 
 More thau one by same party, in different names; 
 
 all rejected, 1114. 
 Not required for certain naval supplies, 1113. 
 Obtained without advertising; material for steam 
 
 boilers, 1182. 
 Opened in presence of Secretary of the Navy and 
 
 bureau chiefs; foreign supplies, 1114. 
 Opening of, for naval contracts, 1111. 
 in presence of parties, 1110, 1114. 
 Rejected for specified causes, 1114. 
 Shells and projectiles for Navy, 1395, 1396. 
 
 1594 
 
INDEX. 
 
 CONTRACTS— Continued . 
 Bids— Continued . 
 
 Time and place of opening to be communicated to 
 
 parties, 1110. 
 To be preserved and recorded, and reported an. 
 nually to Congress, 1113. 
 recorded at time of opening, 1110. 
 Blank forms to be furnished officer making, 1119. 
 Board of naval officers to inspect samples of tobacco, 
 
 1250. 
 Bonds; certified check accepted in lieu of, 1298. 
 contractors required to furnish, 1112, 1113. 
 copartners not received as sureties for each other, 
 
 1114. 
 defaulters in previous contracts not received as 
 
 sureties, 1114. 
 Liberty or other United States issues accepted in 
 
 lieu of sureties, 1523, 1524. 
 not required, where amount less than $500; 1299. 
 one contractor not received as surety for another, 
 
 1114. 
 suit against sureties for liquidated damages, 1113. 
 sureties defaulting; subsequent bids by, rejected, 
 1114. 
 Bread; baking of, under naval supervision, 1115. 
 Buildings; site not to be purchased or contracted for 
 
 without specific appropriation, 1116. 
 Bunting, purchase in open market of American manu' 
 facture, 1115. 
 purchase without advertising, 1113. 
 Bureau chiefs; contracts by, to be executed in foreign 
 country, 1114. 
 may reject bids for specified causes, 1114. 
 to be present at opening of bids for foreign sup. 
 
 plies, 1114. 
 to furnish printed schedules to bidders, Navy, 1111. 
 Butter; may be made for more than one year, 1113. 
 purchase for Navy, 1115. 
 
 without advertising, 1113. 
 Cancellation by consent of Navy Department; pay- 
 ment of reservation, 1115, 1116. 
 during, war, 1475, 1476. 
 terms relating to, are binding, 361. 
 Certified check in lieu of bonds; naval supplies 
 
 1298. 
 Changes in, 1197. 
 
 during war, 1475, 1476. 
 
 time of delivery, by consent of Navj' Department, 
 1115, 1116. 
 Cheese; may be made for more than one year, 1113. 
 
 purchase without advertising, 1113. 
 Clothing; advertising for proposals, 1111. 
 
 purchase of in excess of appropriations, 1116, 1288. 
 Coal- 
 In Alaska; preference right to purchase for Army 
 
 and Navy, 1307. 
 To beinspected and weighed before deUvery, 1110. 
 To weigh 2,240 pounds to ton, 1110. 
 Transportation of, by sea, American vessels, 1283 
 Commandeering coal in Alaska for Army and Navy, 
 1307. 
 factories, etc., during war, 1475, 1476. 
 merchant vessels for use as transports or cruisers, 
 
 1218. 
 ocean mail vessels for use as transports orcruiseis 
 
 1217. 
 supplies in t ime of war, 1413. 
 vessels for naval purposes, 1467. 
 Competing bidders have right to inspect bids, 1114. 
 Confidential plans relating to; filing of in returns 
 office, 397. 
 
 CONTRACTS— Continued. 
 
 Congress to be furnished annual report of proposals, 
 
 1113. 
 Consular certificate required as to prevaiUng prices^ 
 
 contracts for foreign suppUes, 1114. 
 Contraband of war; purchase without advertising, 
 
 1113, 1114. 
 Contractors — 
 
 And agents to render accounts for settlement, 1111. 
 Court-martial jurisdiction over, 62, 64. 
 Defaulting; subsequent bids rejected, 1114. 
 Name must appear on naval suppUcs, 1116. 
 Not received as sureties for each other, 1114. 
 PubUc property deUvered to, in part payment, 778. 
 Receiver appointed; status of vessel under con- 
 struction, 773. 
 State interference with, 49. 
 
 To protect laborers and material men, public 
 
 works, 1227, 1228. 
 
 Copartners not received as sureties for each other, 1114. 
 
 Copies of, certified by returns office, evidence in court, 
 
 428. 
 
 and of bids, proposals, advertisements, etc., to be 
 
 filed in returns office, 397, 1118, 1119. 
 for use in suits, 427, 428. 
 furnished by returns office, 398. 
 furnished laborers and material men on public 
 works, 1227, 1228. 
 Court-martial jurisdiction over contractors, 62, 64. 
 Creditors entitled to sue for labor and material fur- 
 nished, 1227, 1228. 
 Damages; deUnquent bidder charged with difference 
 in cost, 1112, 1113. 
 delinquent contractor liable to, 1113. 
 forfeiture of double contract price for nonperform- 
 ance, 1111. 
 Date of delivery to be communicated to prospective 
 
 bidders, 1111. 
 Dealers; bids submitted by persons who are not, 1114, 
 furnished specifications for steam boilers, 1182. 
 1183. 
 Defaulting principal or surety; subsequent bids of 
 
 rejected, 1114. 
 Deficiency in appropriation; naval suppUes may be 
 
 piu^chased, 1116. 
 Delay in completing deliveries; payment of reserva- 
 tion, 1116. 
 DeUnquency; forfeiture of double contract price, 1111. 
 principal or surety; ground for rejecting subsequent 
 bids, 1114. 
 Delinquent bidder; failure to furnish required bond, 
 1112, 1113. 
 contractor; liquidated damages, 1113. 
 Delivery completed after time required; payment of 
 reservation, 1115, 1116. 
 of naval suppUes; date of, to be communicated to 
 
 prospective bidders, 1111. 
 of specified quantity shall be required by, 1114. 
 payment of 10 per cent reservation, 1115, 1116. 
 Desiccated vegetables; purchase of for Navy, 1115. 
 Disbursing officers not allowed credit for payment for 
 
 fuel without certificate, 1110, 1111. 
 Dissolved by consent of Navy Department; payment 
 
 of reservation, 1115, 1116. 
 District of Columbia; fuel to be inspected, weighed, 
 
 and measured before delivery, 1110. 
 Domestic steel to be used in construction of naval 
 
 vessels, 1195. 
 Eight-hour law — 
 
 Requirements for Government work, 1117, 1219, 
 1220. 
 
 54641°— 22- 
 
 -101 
 
 1595 
 
INDEX. 
 
 COXTRACTS-Continued . 
 Kight-hour law— Continued. 
 
 Stipulations concerning, 1370, 1371. 
 Suspension of, in national emergency, 1474. 
 Emergency not permitting of adverti-sing for supplies 
 or services, 1109. 
 purchases abroad of war material, 1396. 
 Enlistment; may be extended by Congress, 543. 
 Envelopes for departments; Postmaster General to 
 
 procure, 1259, 1240, 1291. 
 Exceeding appropriations restricted, 1104, 1116, 1288, 
 
 1297, 1331. 
 Excessive bids rejected, 1114. 
 
 Executive departments; General Supply Committee to 
 make, 1358. 
 not to make for supplies for longer than one year, 
 
 1117. 
 or bureau procuring services or supplies for another, 
 1536. 
 Extension of; pa3rment of 10 per cent reservation, 1115, 
 
 1116. 
 Fictitious or nominal prices in bids, 1114. 
 Filing of in offices of accounting officers, 1118. 
 Firms; members of not received as sureties for, 1114. 
 Flour for Navy, 1115. 
 
 Fodder, transportation in American vessels, 1283. 
 Forage; purchase of in excess of appropriations, 1116, 
 
 1288. 
 Foreign country, to be executed in, 1114. 
 hemp; purchase of for Navy, 1115. 
 stations; purchase of supplies for without adver- 
 tising, 1113. 
 steel not to be used in naval vessels, 1195. 
 supplies; certificate of consul required as to pre- 
 vaOing prices, 1114. 
 United States articles preferred to, 1115. 
 war material; purchase for Navy; duty, 1396, 1408. 
 Forfeiture of double contract price for nonperformance, 
 nil. 
 of penalty by delinquent contractor, 1113. 
 Form — 
 
 Condition that Members of Congress not interested 
 
 in, 1118. 
 Eight-hour provision, 1370, 1371. 
 Guarantee to accompany proposals, 1112, 1113. 
 Printed blanks to be furnished officers making, 
 
 1119. 
 Return for filing in returns office, 1119. 
 Shall provide for a lien in favor of Government, 
 1369. 
 require delivery of specified quantity, 1114. 
 Written and signed, 1118, 1119. 
 Fraudulent; duty of head of department, 352. 
 Fuel- 
 Departments; purchase in advance of appropria- 
 tions, 1553. 
 Secretary of Interior to make, 1507. 
 Inspector, weigher, and measurer of, 1110. 
 Navy; exceeding appropriations for, 1288. 
 in District of Columbia, 1530. 
 power of Secretary of the Navy as to purchase, 
 1115. 
 Purchase of in excess of appropriations, 1116. 
 Furniture for buildings; appropriation not to be ex- 
 ceeded, 1116. 
 General provisions relating to, 352, 353, 354, 1109-1119. 
 General Supply Committee; duties, etc., 1.3.58. 
 Guarantor charged with damages where bidder delin- 
 quent, 1112, 1113. 
 Guaranty; certified check accepted from bidders in 
 lieu of, 1298. 
 
 CONTRACTS— Continued . 
 
 Guaranty; contractors required to furnish satisfac- 
 tory security, 1111. 
 required of bidders, to accompany proposals, 1112, 
 1113. 
 Gunpowder purchased without advertising, 1113. 
 Gun steel or armor. Navy; adverti.sing and competi- 
 tion required, 1223. 
 Head of department's duties respecting, 352. 
 Hemp; American growth or manufacture preferred, 
 1115. 
 Navy; advertising for proposals, 1111. 
 Home growth or manufacture preferred for Navy, 1115. 
 Hospital supplies; purchase of in excess of appropria- 
 tions, 1116, 1288. 
 Impairing obligation of, 76-77. 
 Indexes of; kept by returns office, 398. 
 Inspection of bids by parties, 1114. 
 Inspectors of fuel, 1110. 
 Instructions to be furnished officers appointed to make, 
 
 1119. 
 Interested parties not to act as Government agents, 
 
 1326. 
 Laborers and material men; protection of 1227, 1228. 
 Land not to be purchased without a specific law 
 
 authorizing, 1117. 
 Law governing; official bonds, 490, 491. 
 Lease of lands for use of Navy; improvements to be- 
 come property of lessor, 1508. 
 Liquidated damages- 
 Forfeiture by delinquent contractor, 1113. 
 
 of double contract price for non])erformance, 
 
 nil. 
 
 Lowest bidder; certain naval supplies not required to 
 be purchased from, 1113, 1114. 
 contracts awarded to by items, Navy, 1390. 
 for foreign supplies shaU receive, 1114. 
 tobacco for Navy purchased from bidder sub- 
 mitting best sample, 1250. 
 to furnish supplies and transportation for Navy, 
 nil. 
 Manufacturers — 
 
 And regular dealers; persons qualified to bid, 1114. 
 Furmshed specifications for steam boilers, 1182. 
 Material men; protection of, 1227, 122S. 
 Measurer of fuel wood, 1110. 
 Meats, preserved; purchase of for Navy, 1115. 
 Medical supplies- 
 Procurement of, for fleets and squadrons, 466. 
 Purchase of, in excess of appropriations, 1116, 1288. 
 medicines without advertising, 1113. 
 Members of Congress- 
 Interested in; punishment, 1333, 1334. 
 Not to have interest; stipulation in contract, 1118. 
 Taking consideration for procuring, 1332, 1333. 
 Name of contractor to appear on naval supplies, 1116. 
 Naval; accounts to be rendered by contractors and 
 agents, 1111. 
 advertising not required for certain articles, 1113, 
 
 1114. 
 annual report of bids and, 381. 
 chief officer of department to make or direct, 1111. 
 chiefs of bureaus to furnish printed schedules to 
 
 bidders, nil. 
 copies filed in returns office, 397. 
 duties of bureaus respecting, 359, 360. 
 general provisions relating to, 1111-1116. 
 officers empowered to make, 1111. 
 
 prohibited from private employment with 
 certain contractors, 1250. 
 petroleum reserves; development of, 1545. 
 
 1596 
 
INDEX. 
 
 CONTRACTS— Continued. 
 
 Naval; purchases and contracts for supplies and serv- 
 ices, 1111. 
 supplies; purchase, 1216. 
 
 and transportation; advertising for proposals, 
 
 1111. 
 purchase in excess of appropriations permitted , 
 1116, 1288. 
 supply account fund charged with cost of stores 
 procured; adjustments made on outstanding 
 contracts or orders, 1557. 
 transportation in American vessels, 12S3. 
 vessels; domestic steel to be used, 1195. 
 general provisions, 1195-1197. 
 Navy orders; proeiu-ement of vessels, etc., during war, 
 
 1413, 1475, 1476. 
 Newspaper advertising; District of Columbia, 1123, 
 1187. 
 for foreign suppUes, 1114. 
 for proposals, 1111. 
 rates paid for, 1184. 
 written authority required for, 1124. 
 Nominal or fictitious prices in bids; not considered, 
 
 1114. 
 Numbering of copies filed in returns office, lllS, 1119. 
 Oath of officer making return for filing in returns office, 
 
 1119. 
 Obligating government beyond appropriations, re- 
 stricted, 1104, 1116, 1288, 1331. 
 Office not held by contract, 124. 
 Officers appointed to make shall be furnished instruc- 
 tions, blank forms, etc., 1119. 
 empowered to make for naval service, 1111. 
 making not to receive benefit or to corruptly 
 benefit others, 1119. 
 to append signatures, etc., 1118. 
 right to salary, 97. 
 Opening of bids, 1110. 
 
 for foreign supplies; presence of Secretary and 
 
 bureau chiefs, 1114. 
 for naval supplies and transportation, 1111. 
 in presence of parties, 1114. 
 Open-market — 
 
 Purchases, naval supplies, 1299. 
 
 or procurement of services authorized in 
 emergencies, 1109. 
 Services procured in, 1299. 
 Operation of law, termination by; payment of reserva- 
 tion, 1115, 1116. 
 Ordnance purchased without advertising, 1113. 
 Originals of; deposited in offices of accounting officers, 
 
 1118. 
 Overobligattng appropriations restncted, 1104, 1116, 
 
 1288, 1331. 
 Panama RaUroad, 1368. 
 Partial payments authorized. Navy, 1369. 
 Payments; advanced as work progresses, 1369. 
 advances of public money restricted, 1099, 1100. 
 agents and contractors to render accounts for set- 
 tlement, nil. 
 appropriations available after fiscal year, 1107. 
 for fuel not allowed without certificate, 1110, 1111. 
 public property delivered as part pa3mient, 778. 
 ten per cent reservation, 1115. 
 to laborers and material men; contractors to give 
 security for, 1227, 1228. 
 Penalty — 
 
 Delinquent bidder charged with difference in cost, 
 
 1112, 1113. 
 For defaulting; subsequent bids rejected, 1114. 
 
 CONTRACTS— Continued. 
 Penalty— Continued . 
 
 For nonperformance; forfeiture of double contract 
 price, nil. 
 omitting return for fiUngin returns office, 1119. 
 Penitentiary labor; products used by naval forces, 
 
 1519, 1520. 
 Pickles; purchase of, for Navy, 1115. 
 Powder; purchase of gimpowder without advertising, 
 
 1113. 
 Preserved meats for Navy, 1115. 
 President's finding as toexcessive charges by American 
 
 vessels, 1283. 
 Prices; competition with foreign hemp, 1115. 
 
 in bids nominal or fictitious; not considered, 1114. 
 of foreign supplies; consular certificate required, 
 
 1114. 
 United States and foreign supphes; preference, 
 1115. 
 Principal defaulting; subsequent bids rejected, 1114. 
 Procurement of stores and materials; President and 
 
 Secretary of the Navy, 342. 
 Proposals — 
 
 Advertising for, 1109. 
 
 Copies of to be filed in returns office, Interior 
 
 Department, 1118, 1119. 
 For naval supplies — 
 
 And transportation: advertising for, 1111. 
 Annual report of, 381 . 
 Not to be advertised for in emergencies, 1109. 
 Sale of naval vessels- 
 Deposit to accompany, 1192. 
 Record of, 1192. 
 Submitted to all manufacturers of shells and pro- 
 jectiles, 1395. 
 To be accompanied by written guarantee, 1112, 
 1113. 
 kept sealed until date of opening, 1111. 
 preserved and recorded and reported armually 
 to Congress, 1113. 
 Provisions, Na\'y; advertising for proposals, 1111. 
 
 . transportation by American vessels, 1283. 
 Public- 
 Officers not to accept fees for procunng, etc., 1332, 
 
 1333. 
 Works; appropriation not to be overobligated, 
 1116. 
 protection of laborers and material men, 1127. 
 Purchases may be made in open market in emergencies, 
 1109. 
 to be made after advertisement for proposals, 1109. 
 Quarters; exceeding appropriations for, 1116, 1288. 
 Record of each bid to be made when opened, 1110. 
 proposals to be kept and reported annually to 
 Congress, 1113. 
 Regular dealers; bids submitted by persons who are 
 
 not, 1114. 
 Regulations becoming part of, 787. 
 
 governing purchase of stores and supplies for 
 
 Navy, 787, 788. 
 may operate as, 198. 
 Rejection of bids; grounds for, 1114. 
 Relinquishment of 10 per cent reservation, 1115. 
 Reports to Congress annually of proposals, 1113. 
 Reservation of 10 per cent; paj-ment, 1115. 
 Restriction on, in excess of appropnations, 1104, 1116, 
 
 1288, 1331. 
 Returns office, Interior Department; copies to be 
 
 filed in, 397, 1118, 1119. 
 Samples of tobacco to be examined by naval board, 
 1250. 
 
 1597 
 
INDEX. 
 
 CONTRACTS— Continued. 
 
 Screw threads; standardized to be used by Navy; 
 
 specifications, 1520. 
 Sealed bids for foreign supplies, 1114. 
 
 proposals for naval supplies and transportation, 
 1111. 
 Secretary of Iho Navy — 
 Can not vary terms, 361. 
 Judgement concerning excessive bids, 1114. 
 May make, where bidder fails to furnish bond, 
 
 1112,1113. 
 Powers as to purchase of fuel, 1 1 15. 
 To advertise for proposals, 1111. 
 
 approve specifications for steel, 1195. 
 be present at opening of bids for foreign sup- 
 plies, 1114. 
 cause officers making, to sign names at end, 
 
 etc., 1118, 1119. 
 furnish instructions and forms to officers 
 
 authonzed to make, 1119. 
 insure quality of butter, etc., purchased for 
 
 Navy, 1115. 
 make or direct, 1111. 
 
 report annually to Congress proposals received, 
 1113. 
 Security for performance required of bidders, 1111. 
 Services procured after advertising for proposals, 1109. 
 in open market, amount less than $500; 1299. 
 without advertising, in emergencies, 1109. 
 Settlement; accounts to be rendered by contractors 
 
 and agents, 1111. 
 Shells and projectiles for Na^'y; restnctions on pur- 
 chase of, 1395, 1396. 
 Signatures of officers making, 1118. 
 Sites for public buildings; not to exceed specific 
 
 appropriation, 1116. 
 Special, for baking bread, 1115. 
 Specifications — 
 
 For steel to be approved by Secretary of the Navy, 
 
 1195. 
 Printed schedules to be furnished bidders, 1111. 
 Screw threads, 1520. 
 State interference with Federal contractors, 49. 
 Stationery and supplies; not to be for longer term than 
 
 one year, 1117. 
 Steam boilers; purchase of; tests, 1182, 1183. 
 Subsistence, Navy; exceeding appropriations for, 1116, 
 
 1288. 
 Suit against contractor and sureties for liqmdated 
 
 damages, 1113. 
 Supplies — 
 
 And transportation for Navy; advertising for pro- 
 posals, 1111. 
 For departments, 1358. 
 
 to be purchased from other departments and 
 establishments, 1526. 
 For other bureaus or departments; appropriation 
 
 chargeable, 1409, 1536. 
 Procured in excess of needs for current year, 387, 
 
 1113,1117. 
 To be procured after advertising except in emer- 
 gencies, 1109. 
 Sureties; copartners not received as, for each other, 
 1114. 
 defaulters in previous contracts not received as, 
 
 1114. 
 liable for liqmdated damages, 1113. 
 one contractor not received as surety for another, 
 1114. 
 Ten per cent reservation; pajTnent of, 1115. 
 Terminated by operation of law; paj-ment of reserva- 
 tion, 111.5, 1116. 
 
 CONTRACTS— Coatinued. 
 
 Term of; butter, cheese, and tobacco, for periods more 
 than one year, 1113. 
 not to exceed one year; stationery and supplies, 
 387, 1117. 
 Time and place of opening bids to be communicated 
 to parties, 1110, 
 for filing copies in returns ofHce, 1118, 1119. 
 Tobacco, may bo made for four years, 1113. 
 Navy, purchase of, 1250. 
 purchase without advertising, 1113. 
 Transfer of, unauthorized, 1117. 
 Transportation; advertising for, 1111. 
 Army transports, 1298. 
 coal in Alaska for Navy, etc., 1393, 1394. 
 exceeding appropriations for, 1116, 1288. 
 fuel; charges excessive, 1407, 1408, 1482, 1515. 
 
 purchase of vessels, 1515. 
 troops, etc., in time of war, 1465. 
 vessels of United States to be used unless charges 
 excessive, 1283. 
 Treasury Department, copies certified by, for use in 
 
 court, 427, 428. 
 Unauthorized; if in excess of appropriations, 1104, 
 1116, 1288, 1297, 1331. 
 purchase of land; speciflclaw required, 1117. 
 Undertaking required to be furnished by bidders, 
 
 1112, 1113. 
 United States articles preferred, for Navy, 1115. 
 Vegetables, desiccated, purchase of for Navy, 1115. 
 Vessels — 
 
 Navy, under construction; ownership before ac- 
 ceptance, 773. 
 Procurement of, during war or emergency, 1453. 
 Voidable; fraudulent enlistment, 550. 
 Void, fraudulent enlistment, 552. 
 Weighers of fuel, 1110. 
 
 Wood to be inspected and measured before deUvery, 
 1110. 
 to measme 128 cubic feet to cord, 1110. 
 Writing required; signatures, etc., 1118, 1119. 
 CONTRIBUTIONS: 
 SeePolitical. 
 
 Political, prohibited; officers and employeas of United 
 States, 783, 1180, 1181. 
 soUciting, giving, etc.; offenses connected with, 
 1334, 1335. 
 Presents to superiors, 1073. 
 CONVENING AUTHORITY: 
 
 See Courts-martial. 
 CONVENTIONS: 
 
 Expenses of public officers attending; restrictions on, 
 1371. 
 CONVERSION: 
 
 See Disbursing officers; Evihezzlevient; Public moneys; 
 
 Public property. 
 Money or property intended for naval service; punish- 
 ment, Navy, 990. 
 Public moneys by custodians, prohibited, 1098. 
 CONVICTION: 
 See Jeopardy. 
 
 Does not make accused incompetent as witness, 1047. 
 Former conviction, plea of, 119. 
 Necessary before pardon recommended, 84. 
 Required before punishment, 73-74, 1078. 
 CONVICTS: 
 
 Court-martial prisoners confined in civil institutions, 
 treated as, 9S3, 984. 
 CONVOY: 
 
 Merchant or other vessels; offenses connected with; 
 punishment. Navy, 985. 
 
 1598 
 
INDEX. 
 
 COOKS: 
 
 Marines detailed as; additional pay for, 1299. 
 Pay, 864. 
 COOLIES: 
 
 Naval forces employed in preventing immigration of, 
 1081. 
 COOPERATION: 
 
 Army and Marine Corps; jurisdiction, 961. 
 and Navy, 579. 
 
 supplies and transportation fmnished, 433. 
 Coast Guard with the Navy, 1091. 
 COPIES: 
 Contracts — 
 
 and bonds furnished laborers and material men on 
 
 public works, 1227, 1228. 
 Certified by returns office, 428. 
 
 by Treasiuy Department, 427, 428. 
 Finished by returns office, 398. 
 To be filed in returns office, Interior Department, 
 397, 1118, 1119. 
 Consular records; evidence in court, 429. 
 Records of court-martial furnished interested persons; 
 evidence in other cases, 1036. 
 Navy Department desired for use in court, 424, 
 426, 427, 1023. 
 COPPERSMITH: 
 
 Ratings established in Navy, 1495. 
 COPYISTS: 
 
 See Civil establishment. 
 
 Employment from naval appropriations restricted,1281 . 
 Pay, 204. 
 COPYRIGHTS: 
 
 Government pubUcations not to be copyrighted, 1232. 
 Purchase of, by Hydrographic Office, Navy Depart- 
 ment, 390, 1236. 
 CORD: 
 
 Wood for public service to measure 128 cubic feet, 
 1110. 
 CORONERS: 
 
 Right to hold inquests on United States reservations, 
 293. 
 CORPORATION: 
 
 " Person'' includes, in construing criminal code, 1355. 
 CORPS: 
 
 Army, defined; Marine Corps detached for ser\"ice 
 with, 443, 444. 
 CORRECTION: 
 SeQ Errors. 
 
 Commanding officer's duty as to, 978, 979. 
 CORRESPONDENCE : 
 
 Penalty envelopes to be inclosed in letters to Congress, 
 1191. 
 
 COST: 
 
 Work under naval appropriations; direct and indirect 
 charges included, 1365. 
 COUNCIL: 
 
 National defense; creation; duties, etc., 1465, 1466. 
 Unauthorized; expenses of not payable, 1105, 1316. 
 COUNSEL: 
 
 Accused entitled to, 129, 133. 
 
 Appointment of special assistants by Attorney Gen- 
 eral, 325. 
 Attorney General will furnish; in departmental inves- 
 tigations, 220. 
 to assist naval courts-martial, 1019, 1020. 
 Claims investigated in departments; Department of 
 Justice to furnish, 325. 
 prosecution of by former Government employees, 
 224. 
 Court of inquiry proceedings; right of party investi- 
 gated, 1056. 
 
 COUNSEL— Continued . 
 
 Courts-martial; public officer accepting fee as: punish- 
 ment, 1333. 
 Damage claim against captor in prize cases, 1139. 
 Department of Justice provides for pubUc officers, 323, 
 460. 
 subordinates to be sent into Federal or State 
 courts, 326. 
 EnUsted man tried by civil court; assignment of 
 wages to pay, 893. 
 charged with manslaughter before consular court, 
 224. 
 Examining boards may have, 723. 
 Fees not allowed — 
 
 For services rendered to public officers, 323. 
 Unless on certificate of Attorney (Jeneral, 325. 
 Foreign countries, how obtained, 223, 321. 
 
 oath not required, 224. 
 Habeas corpus cases, 324. 
 Heads of departments can not employ, 221 . 
 Notaries public acting as, before departments, 1295. 
 Naval officers sued in official capacity, 324. 
 Oath required to be taken by, 224, 325. 
 Secretary of the Navy not authorized to employ for 
 
 courts-martial, 1019, 1020. 
 Special, employed to assist district attorneys, 324, 325. 
 State courts; Department of Justice can not prosecute 
 cases in, 324. 
 COUNTERCLAIMS : 
 See Set off. 
 
 Jurisdiction of Covu-t of Claims, 1362, 1363. 
 COUNTERFEITING : 
 
 Honorable-discharge blanks, 569. 
 Signatures in connection with claims against United 
 States; punishment. Navy, 990. 
 COURT OF CLAIMS: 
 See Claims. 
 Accounting officers' jurisdiction with relation to, 235, 
 
 236. 
 Appeals from judgments of, 1365. 
 Attorneys, former Government employees, 224. 
 Attorney General and subordinates to conduct and 
 
 argue cases, 322. 
 Calls on departments for information and records, 
 
 1364, 1365. 
 Can not require confidential information from Depart- 
 ments, 221. 
 Claims referred by departments, 1363, 1364. 
 Commissioners to take testimony, 1364. 
 Counterclaims determined by, 1362, 1363. 
 Decree on accounts of disbursing officers, 1363. 
 Department of Justice to conduct proceedings in, 323. 
 District coin-ts to have concurrent jurisdiction in cer- 
 tain cases, 1361, 1362. 
 Heads of departments to furnish Attorney General 
 
 with information concerning suits, 220-221. 
 Judgments; how paid, 276. 
 
 jurisdiction of accounting officers, 232. 
 Jurisdiction- 
 Date of naval officer's commission not bindin.^ on, 
 
 835. 
 Effects lost in naval service; claims for reiml)urse- 
 
 ment, 271. 
 Private property lost or damaged in naval service, 
 
 1492-1494. 
 ReUef of disbursing officers, etc., 1362, 1363. 
 New trial on motion of United States, 1365. 
 Patents; suit for use of by Government, 1360,1494, 1502. 
 Payment of judgments; cases referred by departments, 
 
 1364. 
 Procedure in cases referred by departments, 1364. 
 
 1599 
 
INDEX. 
 
 tOUBTS: 
 
 See Civil authorities; Courts-martiat: Judicial; Wit- 
 nesses. 
 Accounting officers' jurisdiction with relation to, 235, 
 
 2-17, 248. 
 Admiralty and maritime jurisdiction, lor). 
 Attorney General and subordinates to arpue cases in, 
 322. 
 bound by decisions until reversed, 320. 
 has general supervision of litigation involving 
 
 United States, 281. 
 will not render opinions on judicial questions, 300. 
 Civil liability of commanding officer for illegal acts, 
 
 loas. 
 
 Commanding officer not a court, 119. 
 Commission to take testimony for use in, 421, 1364. 
 Consular, trial of capital oHenses by, 69. 
 Contempt of; pardoning power, 84. 
 Departmental records; production in, 194. 
 Department of Justice — 
 
 Subordinates to be sent into any Federal or State, 
 
 326. 
 To furnish counsel for public officers, 328. 
 District courts of United States; suits in, against 
 
 United States, 1361, 1362. 
 General provisions relating to, 399-432. 
 Heads of departments' decisions not binding on, 348. 
 may apply to, for subpoenas in pending claims, 
 
 219. 
 may decline to testify or furnish records, 194. 
 Injunction to prevent dismissal, 99. 
 Judicial notice of duties, public officers authorized to 
 perform, 213. 
 system explained, 37. 
 Jurisdiction — 
 
 Accounting officers with relation to, 235, 247, 248. 
 Appointment and removal of employees, 338. 
 Assistant head of department, deposition required, 
 
 422. 
 Business of executive departments, 345-348. 
 Can not command the Army, 621. 
 Concurrent with courts-martial, lOOi. 
 Court-martial, over person in custody of civil 
 court, 63, 64. 
 proceedings, 60, 128, 401-403, 1047-1051. 
 Date of naval officer's commission not binding on, 
 
 835. 
 Examining boards for promotion, 728. 
 Heads of departments, 78, 79, 778. 
 Illegal acts by military officers, 54. 
 Insane persons committed to Saint Elizabeths 
 
 Hospital, 789. 
 International law, 105. 
 Mandamus; accounting officers, 256, 257. 
 
 board of labor employment at navy yards, 780. 
 heads of departments, 79. 
 Secretary of the Navy, 778. 
 Naval personnel, 65. 
 Offenses on naval vessels, 983. 
 Perjury committed in Federal court, 53. 
 Public officers sued for official acts, 54, 350, 351. 
 Retiring boards can not be reviewed by, 620, 621. 
 Military officer awaiting trial by, pay, 825. 
 Naval prisoners as witnesses in, 403. 
 Philippine Islands, jurisdiction over naval vessel, 67. 
 Political questions, lO-I. 
 President beyond jurisdiction of, 77. 
 Proceedings of court-martial bar to trial by civil, 1047. 
 evidence before naval examining boards, 719, 720. 
 Prohibition; writ of, not issued to court-martial, 977 
 
 COURTS— Contini-.od. 
 
 Records of court-martial as evidence, 1036. 
 of departments, copies for u;>c in, 426, 427. 
 of Navy Department, furnishing for use in, 356, 424. 
 Retirement can not be ordered by, 620, 642. 
 State- 
 Attorney General not empowered to conduct cases 
 
 in, 323. 
 Department of Justice can not prosecute cases in, 
 324. 
 subordinates to attend to suits in, 326. 
 Depositions for use in, 424. 
 Federal officers attending as witnesses, 416. 
 
 property in possession of; right of Government 
 to recover, 773. 
 Jurisdiction in habeas corpus, 53. 
 of offenses on naval vessels, 67. 
 Subpoena to head of department, 79, 422, 424. 
 United States — 
 
 Jurisdiction by habeas corpus over persons in 
 Navy, 54. 
 in cases of arrest by State authorities, 51-53. 
 COURTS-MARTIAL : 
 
 See Accused; Courts; Documentary evidence; Evidence; 
 
 Jeopardy; Sentence; Punishments; Witnesses. 
 Absence of— 
 
 Accused at trial, 126-128. 
 
 Witnesses, admission as to what they would tes- 
 tify, 132. 
 procured by accused, 132. 
 Accused can not confer jurisdiction by consent, 125 
 977, 1033. 
 promoted subjected to examination, status of, 652. 
 waiver of rights and privileges, 121, 132, 1026, 1045, 
 1057, 1058, 1062. 
 cquittal; disapproval of sentence equivalent to, 988. 
 effect of, 988. 
 
 not bar to suit for damages against accused, 1049. 
 plea of, 119. 
 Adequate punishment required, 1034. 
 Admissibility of evidence determined by, 1024, 1025. 
 Appropriations, special, not required for expenses of, 
 
 1105. 
 Army, convened on naval vessel, 65. 
 
 jurisdiction over Navy and Marine Corps, 1544. 
 Marine officers may serve as members of, 1544. 
 Bribery of members, witnesses, etc., 1336. 
 Challenge, right of accused, 131, 1018. 
 Character evidence, right of accused to process for 
 
 obtaining, 133. 
 Chiefs of bureaus subject to trial, 62, 366, 839, 977. 
 Civil courts; jmisdiction with relation to, 60, 128, 
 
 401-403, 1001, 1047-1051. 
 Clemency may be recommended by members, 1034. 
 Coast and Geodetic Survey, officers may serve on naval. 
 1494. 
 subject to naval jurisdiction, 978, 1479, 1480. 
 Coast Guard officers may serve on naval, 1494. 
 
 subject to naval jiuisdiction, 978, 1455. 
 Commutation of sentence — 
 
 By reviewing authority, 1009. 
 Deck courts, 1308. 
 
 Definition; mitigation distinguished, 85, 1054. 
 General courts, 1051-1055. 
 Officers dismissed pursuant to, 441. 
 President's power, 1053, 1054 
 Summary courts, 1009. 
 Conclusiveness of record, 1035, 1030. 
 Confirmation of sentence by reviewing authority, 
 10.36-1051. 
 
 1600 
 
INDEX. 
 
 COURTS-3IARTIAL— Continued. 
 
 Confirmation of sentence; mitigating circumstances 
 
 considered by reviewing autliority, 1040. 
 Congressional committee reviewing proceedings of, 
 
 1047. 
 Consent of accused can not confer judirisdiction, 1033. 
 Constitution authorizes, 68. 
 Constitutional limitations applicable to, 68. 
 Convened in foreign country, 65. 
 Convening authority empowered to remit or mitigate 
 sentence, general courts, 10.51-10.x>. 
 outside his command, 1015. 
 Conviction does not make accused incompetent as 
 witness, 1047. 
 necessary before pardon recommended, 84. 
 plea of, 119. 
 
 required before punishment effective, 73, 74, 1078. 
 Correction of record, 1035. 
 Counsel — 
 
 Accused entitled to, 129, 133. 
 For judge advocate, 222, 223, 324. 
 Judge advocate acting for accused, 133. 
 Public officers acting as; punishment for accepting 
 fee, 1333. 
 Court of inquiry proceedings admissible in evidence, 
 
 131, 10.56, 1057. 
 Cumulative evidence, right of accused to process for 
 
 obtaining, 132. 
 Death— 
 
 Of member before signing record, 1034. 
 Sentence authorized, 979-982, 1012. 
 liow determined, 1034. 
 
 life imprisonment may be substituted for, 9S3 
 mitigation of, 1054, 1055. 
 
 President must confirm before execution, 1036. 
 prohibited unless specifically authorized, 1034. 
 Deck courts- 
 Appeal from decision, 1309. 
 Approval of sentences, 1312. 
 By whom convened, 1308. 
 Constitution of, 1308. 
 Convening of, 1441. 
 
 by commanding ofiBcer of hospital or hospital 
 ship, 1441. 
 Discharge from service can not be adjudged by, 
 
 1308. 
 Execution of sentences, 1308, 1312. 
 General provisions relatmg to, 1308, 1309. 
 Judge Advocate General to re\iew records of, 1309. 
 Jurisdiction of enlisted men under command of 
 
 convening officer, 1441. 
 Oaths administered by, 1308. 
 Objection to trial by, 1309. 
 Officers of Naval Reserve Force, Coast Guard, etc., 
 
 eligible for, 1494. 
 Punishments which may be adjudged by, 1309. 
 Recorder of, 1308. 
 Records of, 1309. 
 
 Regulations of President to govern, 1309. 
 Re->.iewingauthority: mitigation of sentence, 1308. 
 Secretary to act on, in certain cases, 1309. 
 Defense — 
 
 Accused allowed reasonable time to make, 1025. 
 
 Former arrest, 119. 
 
 Insanity, 1030, 1031. 
 
 Irresistible impulse, 1031. 
 
 Punishment by commanding officer not bar to 
 
 trial, 1004. 
 Statute of limitations, 1058, 1062. 
 Depositions of witnesses, 131, 1023, 1311, 1312. 
 
 COURTS-MARTIAL— Continued. 
 
 Discretion as to punishments, 979, 981, 983, 984, 985, 990, 
 
 994, 996. 
 Dismissalof— 
 
 Member absent without authority, 1031. 
 Officers, 441, 1010-1014. 
 . mandatory in certain cases, 994, 1029, 1031, 
 1064, 1287. 
 Dismissed officer may demand trial by, 1012. 
 Errors; review of by civil courts, 60, 128, 401-403, 
 
 1047-1051. 
 Estimate and appropriations for. Navy, 1103. 
 E\ideucc; general rules of, 1024. 
 should all be recorded, 1034. 
 Expenses of, may be paid without special appropria- 
 tion, 1105. 
 Expert witnesses, 241, 412, 611, 1025, 1056. 
 Finality of proceedings, 60, 68. 
 Finding- 
 Guilty of lesser offense than that charged, 1029. 
 Partial disapproval; effect on sentence, 1038. 
 Fines may be adjudged, 990. 
 
 to be credited to naval hospital fund, 1159. 
 to be used for transportation of discharged prison- 
 ers, 1313. 
 Former punishment no bar to trial, 1004. 
 General- 
 Absence of members, 1029-1033. 
 
 restricted imder pain of dismissal, 1031. 
 Absent member returning; witnesses recalled 
 1032. 
 witness; additional charges may be tried on 
 return of, 1025. 
 Accused allowed reasonable time to make defense, 
 1025. 
 to be furnished charges when put under arrest» 
 1025. 
 Additional charges not to be urged against accused 
 at trial, 1025. 
 triable by different court, 1028. 
 Adjournment^ 
 
 By convening authority, 1029. 
 From day to day in absence of quorum, 1031. 
 Arrested officer to confine himself, etc., 1029. 
 Arrest of accused, 1025. 
 Challenge of member, 131, 1018. 
 Changes in membership by Bureau of Naviga- 
 tion, 1018. 
 Charges— 
 
 And specifications, 1025-1029. 
 To be furnished accused when put under 
 arrest; additional charges restricted, 1025. 
 Commutation of sentence, 1051-1055. 
 Constitution of, 1015-1019. 
 Contempt of coiu-t by vsritness, 1021, 1310. 
 Convening authority, 1014-1015, 1310, 1442. 
 
 may inflict punishments without trial, 1441. 
 may order courts of inquiry, 1442. 
 
 deck courts, 1441. 
 must confirm sentences, 1036. 
 power to remit or mitigate, but not commute 
 
 sentence, 1051-10.55. 
 temporarily adjourning, 1029. 
 trial of midshipmen, 1248. 
 Delay of proceedings, 1029. 
 E\idence, 1021-1025. 
 
 after court cleared, 1030. 
 to be recorded by judge advocate, 1019. 
 Execution of sentence; confirmation of reviewing 
 officer required, 1036. 
 Illegally constituted, 1018. 
 
 1601 
 
INDEX. 
 
 COIRTS-MARTIAL— Continued. 
 
 General— Continued . 
 
 Irregularity in administering oaths, 1020. 
 Judge Advocate- 
 Duties, 1019. 
 May administer oaths for purposes of naval 
 
 administration, 1240. 
 Not sworn, effect of, 1020, 1021. 
 Responsibility for verity of record, 1034. 
 To administer oath to meniliers, 1019. 
 Judgment authenticated by signatures of members 
 
 and judge advocate, 1034. 
 Members, 1015-1019. 
 
 as witnesses, 131, 1019. 
 responsible for tnith of record, 1034. 
 Minor eligible as member, 1018. 
 Mitigation of sentence, 1051-10.55. 
 New trial, former members ineligible, 1018. 
 Number of members, 1015, 1010. 
 reduced below minimum, 1031. 
 who may proceed with case, 1029. 
 Oath of judge advocate, 1019. 
 members, 1019. 
 witnesses, 1021. 
 Officers of Naval Reserve Force, Coast Guard, etc. 
 
 eligible for membership, 1494. 
 Perjury by witness, how punished, 1021. 
 Precedence of members, 101.5, 1010. 
 Precepts, changes in, 1015, lOlS. 
 
 recitals in, 1015. 
 Presence of accused during trial, 1030. 
 President's action on sentence; midshipmen cases, 
 
 1248. 
 President of, 1015, 1016. 
 
 to administer oath to judge advocate, 1019. 
 to swear witnesses, 1021. 
 Proceedings, 1029-1031. 
 
 not invalidated by unauthorized absence of 
 
 member, 1031. 
 to be recorded by judge advocate, 1019. 
 Prosecutor, 1020. 
 Public ses.sions, 1030. 
 Quorum may proceed with case, 1029-1033. 
 
 not present; may adjourn from day to day, 
 1031. 
 Rank of members, 1015, 1017, 1031. 
 Record to be kept by judge advocate, 1019. 
 Remission of sentence, 1051-1055. 
 Retired officer eligible as member, 1018. 
 Return of absent member; witnesses recalled, 
 
 1032. 
 Reviewing authority's action on sentence, 1051- 
 1055. 
 authority, trial of midshipmen, 1248. 
 Revision of proceedings; absent member, 1031, 
 
 1032. 
 Secrecy of votes and opinions of members, 1019. 
 Secretary of the Navy may convene for midship- 
 men, 1248. 
 Senior member to preside, 1015, 1016. 
 Sentence — 
 
 How determined, 1034. 
 
 Not to be di\nilged until approved by proper 
 
 authority, 1019. 
 Remitted or mitigated by reviewing authority, 
 1051-1055. 
 Sittings to be from day to day, Sundays excepted, 
 
 1029. 
 Summary court-martial punishments may be in- 
 flicted oy, 1010. 
 Sunday sessions not required, 1029. 
 
 COURTS-MARTIAL— Continued. 
 
 General— Continued. 
 
 Suspension of oflicer's pay, 1033. 
 
 of proceedings, 1029. 
 Temporary adjournment by convening authority- 
 
 1029. 
 To punish irreverent behavior during divine 
 
 service, 979. 
 Vote of members not to be divulged, 1019. 
 Waiver of objection by accused, 1026. 
 Witnesses- 
 Members of court as, 131, 1019. 
 Prevaricating, how punished, 1021. 
 Recalled on return of absent member, 1032. 
 Sworn by president, 1021. 
 Habeas corpus proceedings relating to, 401-403. 
 Haste in conducting proceedings, 130. 
 Hours of spssion, miu.sual not approved, 130. 
 Illegally constituted; not due process of lav/, 125. 
 Imprisonment may be adjudged, 983, 990. 
 Investigating loss of naval vessel, 996. 
 Irregularities — 
 
 And fatal defects, distinguished, 1045-1047. 
 Not fatal, 1033. 
 
 Waiver of objection by accused, 1026. 
 Jeopardy; new trial, 1047. 
 Judge Advocate General — 
 
 Duties relating to, 1186, 11S7. 
 Power to revise proceedings, 1043. 
 Subject to trial, 62, 366, 977. 
 Judicial notice; State laws, 429. 
 Jurisdictional facts must be shown by record, 1034. 
 
 omitted from record, 1034. 
 Jurisdiction- 
 Change of status of accused does not divest, 403. 
 Chiefs of bureaus, 62, 366, &39, 977. 
 Concurrent with ci\-il courts, 1001. 
 Consent of accused can not confer, 125, 977, 1033. 
 Discharged or dismissed persons; trial of, 991, 1012. 
 Embezzlement, misappropriation, false accounts 
 
 and false returns, 1170. 
 Enlisted men not discharged, 555, 556. 
 Homicide on naval vessel, 983. 
 Marino Corps, 960, 961. 
 Midsliipmen, 124S. 
 Not conferred by consent of accused, 125, 977, 
 
 1033. 
 Not limited by espionage act, 1484. 
 Of civil courts to re\iew, etc., 60, 12S, 401-403, 
 
 1017-1051. 
 Offenses, 65. 
 
 against Articles of War committed by marines, 
 1544. 
 Of State courts to release prisoners, .53. 
 Persons amenable to, 62, 973-978. 
 civilian spies, etc., 981, 982. 
 crew of lost vessels until discharge, 996. 
 discharged enlisted men, 567, 991, 1060. 
 dismissed officer, 991, 1012-1014. 
 enlistment expired but not discharged, 558, 
 
 1057, 1061. 
 illegal discharge revoked, 1008. 
 Persons not amenable to, 63. 
 Retired enlisted men, 969, 970. 
 
 officers, 62, 631, 643, 644. 
 Specification fatally defective: proceedings and 
 sentence nullities, 1008, 1009. 
 Jury analogous to, 1039. 
 Law and facts decided by, 1024, 1045. 
 Lighthouse Ser^^ce, officers may serve on naval, 1494. 
 subject to naval jurisdiction, 978, 1456, 1457. 
 
 1602 
 
INDEX. 
 
 COURTS-MARTI AL— Continued . 
 
 Limitation of— 
 
 Punishments, time of peace, 1062-1064. 
 
 Trials; desertion in time of peace, 1060-1062. 
 general oflenses, 1057-1060. 
 Marine Corps — 
 
 Reserve, ofHcers may serve on naval courts, 1494. 
 
 Subject to naval jurisdiction, 956, 978. 
 Members — 
 
 May recommend clemency, 1034. 
 
 Must sign judgment, 1034. 
 
 Officers of auxiliary naval forces eligible, 1494. 
 
 Testifying as witnesses, 131, 1019. 
 Midshipmen, 751-761, 1248. 
 
 for hazing, 1178, 1286, 1287. 
 
 Secretary of the Navy to convene for trial of, 1248. 
 Misconduct; officers to be tried for, and not re- 
 tired, 622. 
 Mitigating circumstances considered by reviewing 
 
 authority, 1040. 
 Mitigation of sentence, 85, 1009. 
 
 Coast Guard personnel, 14r)5. 
 
 deck courts, 1308. 
 
 general courts, 1051-1055. 
 
 Secretary of the Navy has power, 1309. 
 
 summary courts, 1009. 
 Naval- 
 Academy, how constituted, convened, etc., 1178. 
 
 Militia, convening on naval vessels, 65, 71. 
 
 Reserve f'orce, officers may sen,e on naval courts, 
 1494. 
 subject to naval jurisdiction, 978, 1446, 1447, 
 1451, 1511. 
 New trials, 121, 1047. 
 
 Oath of witnesses before any court-martial, 1021. 
 Officer awaiting trial by; pay, 825. 
 
 not to be dismissed without sentence of, in time 
 of peace, 441, 1010-1014. 
 
 of auxiliary naval forces eligible for duty on, 1494. 
 Omission of record to show jurisdictional fact, 1035. 
 Pardon of punishment, 85. 
 Partial verdict, 1029. 
 Perjury before, 431, 1021. 
 Plea of guilty ; evidence after, 1024. 
 Power of Congress to create, 59. 
 President may convene without statutory authority, 
 83, 1015. 
 
 must confirm sentence of death or dismissal, lO'M. 
 President of court to sign judgment, 1034. 
 President's power to mitigate sentences, 1053, 1054. 
 Proceedings bar to trial by civil court, 1047. 
 
 interrupted before completion, 121. 
 
 set aside by Secretary of the Navy, 1309. 
 Proliibited punishments, 1034. 
 Promulgation of sentence, 1045. 
 Pulilic Health Service, officers may serve on naval, 
 1494. 
 
 subject to naval jurisdiction, 978, 1491. 
 Public trials, 130. 
 
 Punishments without sentence of, restricted, 1002. 
 Questions of law and facts decided by, 1024, 1045. 
 Recommendation of clemencj- by members, 1034. 
 Reconvening of, for revision of proceedings and sen- 
 tence, 1043-1044. 
 
 its own motion, 1044, 1045. 
 Record — 
 
 Conclusive of its own verity, 1035, 1036. 
 
 Copies furnished to persons interested; evidence 
 in other cases, 1036. 
 
 Death of member before signing, 10;J4. 
 
 Decisions relating to, 1034-1036. 
 
 COURTS-MARTIAL— Continued. 
 
 Record — Continued . 
 
 Evidence before examining boards, 718, 719. 
 
 Judgment authenticated by signature of members 
 and Judge Advocate, 1034. 
 
 Of proceedings received, revised, and recordf<l 
 by Judge Advocate General, 1186. 
 
 Should contain aU the evidence, 1034. 
 
 To state reasons of members for recommending 
 clemency, 1034. 
 Reduction of officer to enlisted rating; confirmation 
 
 of sentence, 1045. 
 Regulations governing proceedings; validity of, 7S5, 
 
 7S6. 
 Remission of sentence, 85. 
 
 Coast Guard personnel, 1455. 
 
 deck courts, 1308. 
 
 general courts, 1051-1055. 
 
 Secretary of the Navy has power, 1309. 
 
 summary courts, 1009. 
 
 suspension not executed, 669. 
 Responsibility of members for illegal acts, 54. 
 Retiring boards may exercise powers of, 603. 
 Reviewing authority — 
 
 Action of Judge Advocate General, 1043. 
 
 Action reconsidered, 1038, 1039. 
 
 Decisions relating to, 1037-1055. 
 
 Disapproval, effect of, 988. 
 
 must be distinctly expressed, 1042. 
 
 Empowered to remit or mitigate sentence, general 
 courts, 1051-1055. 
 
 Form of President's action: personal signature not 
 required, 1O40. 
 
 General courts; confirmation of sentence by, 1036. 
 
 Personal action required, 1040. 
 
 Place of imprisonment designated by, 1064. 
 
 Power of Secretary of the Navy, 1008, 1009, 1042, 
 1043. 
 
 Reconvening court for revision, 1043, 1044. 
 
 Relation to court; analogous to judge and jury, 
 1039. 
 
 Remission or mitigation of sentence, without 
 commuting, 1009. 
 
 Sentence kept secret until approved by, 1019. 
 Review of, by civil courts, 60, 128, 401-403, 1001, 1047- 
 1051. 
 
 by Congress, 1047. 
 
 hazing cases, 1287. 
 Re\-ision of proceedings; court reconvene<l, 1043, 1044. 
 
 not second trial, 120. 
 Secretary of the Na\T's action on, 1042, 1043, 1287, 1309. 
 Sentence- 
 Adequate punishment required, 1034. 
 
 Determined by majority of votes, except death, 
 1034. 
 
 Excessive; not void, 403. 
 
 Final when confirmed, 402, 40;?. 
 
 Jurisdiction of civil courts to review, 402-403. 
 
 Limitation of, in time of peace, 1062-1064. 
 
 Prohibited; flogging, etc., 1034. 
 Setting aside proceedings of, 1309. 
 Speedy trial, right of accused, 129. 
 Status of, not part of judicial system, 37. 
 Statute of limitations; desertion in time of peace, lOOO- 
 1062. 
 
 general offenses, 1057-1000. 
 Statutory authority necessary to convene, 1014. 
 Subornation of perjury; prosecution of, 4;il. 
 Sufficiency of charges question for decision of, 102.*<. 
 Summary — 
 
 Approval of sentences, 1312, 1442. 
 
 1603 
 
INDEX. 
 
 CO I' KTS-M ARTI AL— Com inucd . 
 
 Summary— ContiniU'd. 
 Constitution of, 1006. 
 Convening authority, 100."., 100(1, 14U. 
 
 commanding officer of hospital or hospital ship, 
 
 1441. 
 may inflict pimishments without trial, 1441. 
 may order deck courts, 1441. 
 Execution of sentence, 1006, 1007, 1312, 1442. 
 
 bad conduct discharge, in foreign country, 1006. 
 Jurisdiction, enlisted men under command of 
 
 convening autliority. Mil. 
 May disrate for incompetency, 1007. 
 Members, who may act as, 1006. 
 Oath of members and recorder, 1006. 
 
 witnesses, 1006. 
 Oflenses punishable by, 1005. 
 Officers of Naval Reserve Force, Coast f!uard,etc., 
 
 eligible for membership, 1494. 
 Persons amenable to, 1005, 1441. 
 Power of Secretary of the Navy over sentence, 
 
 1008, 1009. 
 Proceedings and record of, 1009, 1311. 
 Punishments by, 1006, 1007, 1309. 
 
 may be inflicted by general courts-martial,1010. 
 Reconvening for dillerent punishment, 1009. 
 Recorder; oath of, 1006. 
 
 who may act as, 1006. 
 Records- 
 Evidence in civil court, 1009, 1010. 
 Evidence to be kept by recorder, 1006. 
 Filed in Navy Department; destroyed after 
 two years, 1009. 
 Reviewing authority; action required, 1007-1009. 
 Senior member to administer oath to recorder and 
 
 witnesses, 1006. 
 Sentence, action of reviewing authority required, 
 1007-1009. 
 remission or mitigation of, without commuta- 
 tion, 1009. 
 remitted by another court, 1009. 
 Specification fatally defective; proceedings a nul- 
 lity, 1008, 1009. 
 Submitting case to second court for dillerent 
 
 punishment, 1009. 
 Testimony to be oral, 1006. 
 To punish irreverent behavior during divine 
 
 service, 979. 
 Witnesses, oath of, 1006. 
 Trial by, mandatory; officers failing to report offenses 
 
 by midshipmen, 1287. 
 Veto of bill annulling finding, 35. 
 Votes; majority determines any sentence except death, 
 
 1034. 
 Witnesses— 
 
 CiviUans required to appear before, 1021, 1022. 
 Compulsory process to obtain, 1310. 
 F"ees, 410-411. 
 
 estimates and appropriations for, Navy, 1103. 
 must be paid or tendered in advance, 1022. 
 Members of Congress, 33. 
 Refusal to appear or testify; punishment, 1310. 
 Right to compel attendance, 132. 
 Self-crimination, 102;3. 
 
 To besworn by president of any court-martial, 1021. 
 Wrecked, lost, or captiu-ed vessel; conduct of officers 
 and men investigated by, 891. 
 COURTS OF INQUIRY: 
 Analogous to grand jury, 1055. 
 
 Attorney of party investigated entitled to cross-exam- 
 ine witnesses, 1056. 
 
 COURTS OF INQUIRY— Continued. 
 
 Board of imiuiry at Naval Academy, 1286. 
 Constitution of; number of officers, 1055. 
 Contempts punished by, 1055. 
 Convening authority; by whom ordered, 1055, 1442. 
 Counsel for defendant may cross-examine witnesses, 132. 
 Defendant entitled to cross-examine witnesses, 132. 
 Depositions may be procured and used before, 1311, 
 
 1312. 
 Documentary evidence admissible, 10.56. 
 Estimates and appropriations for, Navy, 1103. 
 Expenses of, may be paid without special appropria- 
 tion, 1105. 
 Evidence before, to be recorded, 10.56. 
 Expert witnesses, 10.56. 
 Facts to be stated I)y, 10.55. 
 Investigating loss of naval vessel, 996. 
 Judge advocate, 10.55. 
 
 to administer oath for purposes of naval adminis- 
 tration, 1240. 
 to administer oath to members, 1056. 
 to keep record, 1056. 
 to besworn, 1056. 
 Not judicial tribunals, 1055. 
 Oath administered by, 1055. 
 
 of meml)ers and judge advocate, 1056. 
 Opinion not to be expressed by, unless specifically 
 
 authorized, 10.55. 
 Powers of, 1055. 
 
 Precedence of line and staff members, 704. 
 President of, to administer oath to judge advocate, 
 
 1056. 
 Proceedings — 
 
 Admissibility before civil court, 1057. 
 Admissible before courts-martial, 131, 132, 1056, 
 
 10.57. 
 As evidence before court-martial; waiver of ob- 
 jection by accused, 1.32. 
 Not a trial, 1055. 
 Record received, revised, and recorded by Judge Ad- 
 vocate General, 1186, 1187. 
 to be kept by judge advocate, 1056. 
 
 signed by president and judge advocate, 1056, 
 1057. 
 Retiring boards may exercise powers of, 603. 
 Rights of party inquired of, 1056. 
 Sentence of; crew of wrecked or lost vessel, 891. 
 Sessions may be open or closed, 1056. 
 Statute of limitations not applicable to, 1056. 
 Witnesses — 
 
 Compulsory process to obtain, 1310. 
 Cross-examined by party under investigation, 1056. 
 Fees; estimates and appropriations for. Navy, 
 
 1103. 
 Refusal to appear or testify; punishment, 1310. 
 Summoned by, 10.55. 
 COXSWAINS: 
 
 Additional pay, enlisted men, 866. 
 CREDITABLE RECORD: 
 
 Warrant and commissioned warrant officers; pay, 
 1429, 1430, 1503, 1504. 
 CREDITORS: 
 
 Enlisted men; attachment of wages, 573, 574. 
 CREW: 
 
 Assignment of wages; commanding officer to dis. 
 
 courage, 573. 
 Final payment to; duty of commanding officer, 995. 
 Maltreatment of by officers, 1351. 
 Provisions relating to health of, 995. 
 Report of members entitled to honorable discharge, 
 573. 
 
 1604 
 
INDEX. 
 
 CREW— Continued. 
 
 Separated from wrecked or lost vessel; pay of, 891. 
 Wrecked or lost vessel; discipline of, 996. 
 CRIMES: 
 
 See Articles for the government of the Navy. 
 Accessories; punishment of, 1354. 
 Admiralty and maritime jurisdiction, 1348-1351. 
 Adultery; definition and punishment, 1354. 
 Appointments to office; Members of Congress, etc. 
 
 taking consideration for procuring, 1332, 1333. 
 Arsenals, etc.; enticing workmen from, 1327. 
 Arson- 
 Dwelling house or other building, 1350. 
 Mailing matter tending to incite, 1340, 1341. 
 Vessel, 1353. 
 Assassination; mailing matter tending to incite, 1340, 
 
 1341. 
 Assault with intent to commit any felony, 1349. 
 
 to commit murder or rape, 1349. 
 Assaulting or robbing mail custodian, 1339. 
 
 postal clerk, 1338. 
 At sea, power of Congress, 38. 
 
 Attorneys before departments, courts-martial, etc., 
 public officers or employees acting as, 1333. 
 prosecuting claims, procuring contracts, etc., 
 public officers acting as, 1332, 1333. 
 Bigamy, 1354. 
 Books, maps, etc.; destroying, removing, stealing, or 
 
 attempting to do so, 1335, 1336. 
 Breaking and entering vessel, etc., 1352, 1353. 
 
 into compartment of vessel, etc., used by mail ser- 
 vice, 1338. 
 
 into post office, 1338. 
 Briberj-; judges, jurors, witnesses, etc., 1336. 
 public officers, 1334. 
 United States officers, 1325, 1326. 
 Carnal knowledge of female imder sixteen, 1349. 
 Checks; drawing and issuing for amount less than one 
 dollar, 1337. 
 larceny of, 1350. 
 Citizenship; falsely claiming, 1328. 
 Civil-sen.-ice law; violations; punishment, 1383, 1384. 
 Claims against United States; fraudulent, 1323, 1324. 
 
 officers, employees, etc., interested in, 1-332. 
 Code books, plans, etc., relating to national defense; 
 
 negligence in losing, etc., 1483. 
 Cohabiting with more than one woman, 1354. 
 ColUsion between vessels; failure to render assistance, 
 
 1216. 
 Conspiracy, 1324. 
 
 to commit offense against United States, 1325. 
 Construction of certain words in criminal code, 1355. 
 Contempt; witnesses summoned by naval courts; 
 
 punishment by civil court, 1310. 
 Contracts — 
 
 Exceeding appropriations for erection, repair, 
 
 or furnishing of building or improvements, 1331. 
 
 Interested parties not to act as Government agents, 
 
 1326. 
 Members of Congress interested in, 1333, 1334. 
 
 taking consideration for procuring, 1332, 13.33. 
 Omitting to file return in returns office, 1119. 
 Contractors refusing to comply with l<iavy orders dur- 
 ing War, 1413. 
 Contributions by private parties to public officers or 
 
 emploj^ees, 1470. 
 Coimterfeiting Government seal, etc., 1489. 
 Courts-martial; public officers acting as attorneys 
 
 before, or before departments, 1333. 
 Criminal code, 1316-1355. 
 statutes, defined, 8. 
 interpretation of, 23. 
 
 C RIMES— Continued . 
 
 Currency; checks for less than one dollar not to be 
 
 issued, 1337. 
 Decorations of foreign nations; unauthorized wearing 
 
 of, 1515, 1516. 
 Defensive sea areas; offenses concerning, 1327. 
 Deficiencies incurred in violation of law; fine and 
 
 imprisonment; dismissal, 1104, 1105. 
 Deserting the mail, 1339. 
 Desertion; enticing from Navy; assisting deserters 
 
 etc., 1326, 1327. 
 Destroying mail matter, 1338. 
 
 public property during war, 1504, 1505. 
 Disbursing officers- 
 Converting, loaning, depositing, withdrawing, or 
 
 transferring money contrary to law, 1329. 
 Embezzlement, 1329-1331. 
 Exchange of funds by custodians, etc., 1330. 
 Failure to deposit money as required, 1330. 
 
 to render accounts, 1330. 
 Issuing checks for less than one doUar, 1337. 
 Making unauthorized exchange of funds; sus- 
 pended or dismissed, 1100. 
 Moneys deposited by; failure safely to keep, etc., 
 
 1329, 1330. 
 Taking receipt for larger sum than paid, 1329, 1331. 
 Trading in funds or property. Federal or State, 
 1332. 
 Eight-hour law violations, 1220. 
 Elective franchise; offenses against, 1321. 
 Embezzlement — 
 
 Arms, stores, money, etc., furnished for the naval 
 
 service, 1325. 
 Disbursing officers, etc., 1329-1331. 
 Evidence of; records, etc., 1330, 1331. 
 Indictment for, 1330. 
 Mail matter, 133S. 
 
 Money or property, public or private, by pubUc 
 officer, 1331. 
 stores, etc., furnished for naval service, 1325. 
 Naval personnel, public or private money or 
 
 property; insurrection, 1170. 
 Postal employees, 1344. 
 Post-office property, 1337. 
 PubUc money or property, 1328. 
 Enlisting in foreign service within United States, 1318. 
 
 to serve against United States, 1318. 
 Envelopes, penalty, fradulent use of, 1345. 
 Espionage, 1482. 
 Exclusive jurisdiction of United States, 1348-1351, 
 
 1353, 1354. 
 Explosives not mailable, 1342, 1343. 
 
 transportation of ; naval forces excepted, 1345, 1346. 
 Exportation of arms, etc., in violation of law, 1488. 
 Extortion by informer, 1336. 
 
 by officials, 1329. 
 Extradition from foreign government; naval forces 
 
 used to protect accused, 1167. 
 Fading to report, to civil or rmlitary authority, 1336, 
 
 1337. 
 False- 
 Accounts, naval personnel; insurrection, 1170. 
 
 records, reports, etc., 1.368. 
 Acknowledgments by officer, 1323. 
 Certificates or writings, not otherwise punishable, 
 
 1332. 
 Impersonation of officer, 1323. 
 Receipts, 1324. 
 
 Returns; naval personnel; insurrection, 1170. 
 Falsification of records, 1336. 
 Felonies defined, 13.55. 
 
 1605 
 
INDEX. 
 
 CRIMES— Continued . 
 
 Foreign commission to serve against friendly power; 
 accepting, 131 S. 
 
 governments; correspondence with, 1317. 
 
 vessels; augmenting armed force of, 1319. 
 Forged papers; having in possession, 1323. 
 Forgery of bonds; public records, or other wTitings_ 
 1322. 
 
 deeds, powers of attorney, receipts, or other 
 writings, 1322, 1323. 
 
 discharge certificate, naval service, 1473. 
 
 money orders or signatures thereon, 1343, 1344. 
 
 seal, executive departments, or of naval pass or 
 permit, etc., 1489. 
 Fornication , 13M. 
 
 Fortifications, etc., injuries to, 1327. 
 Fraudulent claims, 1324. 
 
 for wages, etc., 1323. 
 General; not specified; pianishment. Navy, 99&-1002. 
 
 provisions relating to, 1316-1355. 
 Hard labor; power to impose, 135.'). 
 Hiring out labor of United States prisoners, 1198. 
 Incest; definition and punishment, 13.54. 
 Indecent matter on wrappers of mall or postals, 1341 . 
 Infamous, defined, 118. 
 Influencing legislation; punishment, 1527. 
 Insurrection; enlisting to serve against United States, 
 1318. 
 
 general provisions relating to, 1169-1172. 
 
 inciting rebellion, etc., 1317. 
 
 mailing matter urging, 1489, 1490. 
 
 use of militia to suppress, 69. 
 Intoxicants not mailable, 1342, 1343. 
 
 prohibition of, near miUtary camps and to persons 
 in uniform, etc., 1477, 1478. 
 Larceny, 1324. 
 
 arms, stores, money, etc., furnished for the naval 
 service, 1325. 
 
 books, maps, records, etc., 1335, 1336. 
 
 mail matter, 1338. 
 
 personal property of United States, 1328. 
 
 post-office property, 1337. 
 
 private property, 1350. 
 
 pubUc money, property, records, etc., 1328. 
 
 value of written instrument, 1350. 
 Libelous or indecent matter on wrappers of mail 
 
 matter, 1341. 
 Lottery circulars, etc., not mailable, 1341, 1342. 
 
 tickets; importing, etc., 1346,1347. 
 Mail bags; injuring, 1337. 
 
 Mailing matter contrary to law; espionage act, 1489, 
 1490. 
 
 obscene matter; inciting arson, murder, etc., 1340. 
 Maiming, etc., 1350. 
 Manslaughter; attempt to commit, 1349. 
 
 definition and punishment, 1349. 
 
 place where committed, 1355. 
 MiUtary or naval expedition; organizing against 
 
 friendly power, 1319. 
 Military reservations; unlawfully entering, 1327. 
 
 State laws applicable in, 1351. 
 Misappropriation of arms, stores, money, etc., fur- 
 nished for the naval service, 1325. 
 Misdemeanors defined, 1355. 
 Misprision of felony, 1.3.36, 1337. 
 
 of treason, 1317. 
 Money orders; issuing unpaid for, 1340. 
 Murder, assault with intent to commit, 1349. 
 
 attempt to comjnit, 1349. 
 
 definition and i)unishment, 1349. 
 
 mailing matter tending to incite, 1340, 1341. 
 
 CRIMES— Continued . 
 
 Murder^ place where committed, 1355. 
 
 Mutiny or rfevolt, or inciting same, on shipboard, 
 
 1351, 1352. 
 Naval clothing, military stores, etc.; unlawful imr- 
 
 ch;ise of, 1324, 132.5. 
 National defense; offenses relating to, 1327. 
 Naval forces — 
 
 Employed to enforce laws against slave trade, 
 1347, 1348. 
 to enforce neutrality laws, 1319, 1320. 
 Excepted from restriction on transportation of 
 explosives, 1345, 1346. 
 Naval oflacers — 
 
 Having armed forces at poUs, 1321. 
 Interfering with elections, 1321. 
 Intimidating voters, 1321. 
 Prescribing qualifications for voters, 1321. 
 Naval personnel's right to vote not restricted by 
 criminal code, 1321. 
 reser^^ations; offenses in, 1348-1351; 1353,1354. 
 
 State laws applicable in, 1351. 
 Reserve Force badge or button; unauthorized 
 wearing of, 1447. 
 Neutrality; offenses against, 1318-1320; 14SG-1488. 
 Obscene books, etc.; importing or transporting, 1347. 
 literature; circulating, etc., 1353. 
 matter vmmailable, 1340. 
 Obstructing the mail, 1339. 
 Offenses — 
 
 Against elective franchise, 1321. 
 
 existence of the Government, 131G-1318. 
 foreign and interstate commerce, 1345-1347. 
 neutrality, 131.8-1320. 
 
 operations of the Government, 1322-132S. 
 postal service, 1337-1345. 
 public justice, 1335-1337. 
 In the territories, or elsewhere within the exclusive 
 
 jurisdiction of the United States, 1353-1354. 
 Relating to official duties, 1328-1335. 
 Within the admiralty and maritime and the 
 territorial (or exclusive) jurisdisction of United 
 States, 1348-1351. 
 Penalty envelopes; fraudulent use of, 1345. 
 Perjury, and subornation of perjury, 1335. 
 Piracy and other offenses upon the seas, 1351-1353. 
 Poisons, not mailable, 1342, 1343. 
 PoUtical contributions, 1334, 1335. 
 
 by executive oflScers and employees, 783, 1180, 1181. 
 Postage; collecting excessive, 1339, 1340. 
 failure to account for amoimt due, 1340. 
 fraudulently using penalty envelopes to avoid, 
 
 1345. 
 stamps; unlawfully pledging or seUing, 1340. 
 Postal- 
 Employee detaining, destroying, or embezzling 
 maU matter, 1338, 1339. 
 embezzling, loaning, pledging, exchanging, 
 depositing, etc., pastal funds contrary to 
 law, 1344. 
 liable notwithstanding omission to take oath, 
 1345. 
 Service; offenses against, 1337-1345. 
 Principals defined, 1354. 
 Prize fight films and pictures; mailing, transporting, 
 
 receiving, etc., forbidden, 1371, 1372. 
 Prize; interference with disposition of, etc., 1325. 
 Public moneys; withholding, 10%. 
 Purchase of naval clothing, etc., 1324, 1325. 
 Rape; assault with intent to commit, 1349. 
 piuiishment, 1349. 
 
 1606 
 
INDEX. 
 
 CRIMES— Continued. 
 
 Rebellion or insurrection; inciting, etc., 1317. 
 Receiving stolen goods, etc., 1350, 1351. 
 
 stolen public property, 1328. 
 Records — 
 
 And files; unauthorized removal and use of, 1326. 
 Destroying, removing, stealing, or attempting to 
 
 do so, 1335, 1336. 
 Falsification of, 1336. 
 Recruiting for service against United States, 1318. 
 Regulations, violations of, 198. 
 Reports; failure to make at time required by law or 
 
 regulation, 1331. 
 Robbery, 1350. 
 
 mail custodian, 1339. 
 personal property of United States, 1328. 
 Seditious conspiracy, 1317. 
 Seduction; carnal knowledge of female imder sixteen, 
 
 1349. 
 Selling unlawfully arms, stores, etc., furnished for 
 
 naval service, 1325. 
 Slave trade; seizure of vessels in, etc., 1347, 1348. 
 State laws adopted in Federal reservations, 1351. 
 Territorial jurisdiction, 1348-1351, 1353, 1354. 
 Threatening matter on wrapper of mail, 1341. 
 Threats against President, 1469. 
 Timber depredations, 1088, 1089. 
 Treason, 1316, 1317. 
 
 mailing matter advocating, 1489, 1490. 
 Uniform of foreign nations; unauthorized wearing of • 
 1515, 1516. 
 of Navy, etc., unauthorized wearing of, 1414, 1415. 
 Vessels; abandonment of mariner in foreign port, 1352. 
 arming against friendly powers, 1319. 
 breaking and entering, etc., 1352, 1353. 
 destroying, wrecking, setting on fire, etc., 1353. 
 failing to assist persons at sea, 1372. 
 in distress; pltmdering, 1352. 
 in slave trade, seizure of; use of naval forces, 1347, 
 
 1348. 
 maltreatment of crew by oflJcers, 1351. 
 mutiny or revolt, or inciting same, on board, 1351, 
 
 1352. 
 of the United States; defined, 1353. 
 War time oflenses; espionage, etc., 1482-1490. 
 CRIMINAL CODE: 
 
 See Crimes. 
 CRianNATION: 
 
 See Sclf<rimination. 
 CROSS-EXAMINATION: 
 
 Witnesses before court of inquiry, 1056. 
 in departmental investigations, 219. 
 CROSS-INTERROGATORIES : 
 See Depositions. 
 
 Claims pending in departments, 219. 
 CRUEL AND UNUSUAL PUNISHaiENTS: 
 Court-martial sentences, 1063. 
 Decisions relating to, 134. 
 Due process of law, 125. 
 
 Flogging, branding, marking, or tattooing, prohibited 
 in the Navy, 1034. 
 CRUELTY: 
 
 Toward subordinates; punishment for in Navy, 984. 
 CRUISE: 
 
 Reports on return from; men entitled to honorable 
 discharge, 573. 
 CULPABLE INEFFICIENCY: 
 
 Punishment for, Navy, 984. 
 CUMULATIVE: 
 
 Evidence; accused not entitled to process for obtain- 
 ing, 132. 
 Sentences; courts-martial, 1063. 
 
 CUSTODY: 
 
 Departmental property and records, 193, 194. 
 Prisoners; Secretary of Navy does not have, 404. 
 CUSTOMS: 
 See Usages. 
 
 Inspection of naval vessels, 260. 
 Navy; equivalent to regulation, 885. 
 power of President to changr, 59. 
 Protection of, by naval forces, 1172. 
 DAILY AVERAGE: 
 
 Authorized number of enlisted men, 537, 1396. 
 DAIRY: 
 
 Naval Academy, 770-771. 
 DAMAGES: 
 
 Acquittal by court-martial no bar to suit against ac. 
 
 cused, 1049. 
 Civil liability of commanding officer for illegal acts,100'5. 
 Claims for; against captor in prize cases, 1139. 
 caused by American forces abroad, 1504. 
 
 by naval aircraft; settlement; report to Con- 
 gress, 1545. 
 by naval forces abroad, 1508. 
 by naval personnel, 1527. 
 by naval vessels, 1358, 1359. 
 Contractors, delinquent; forfeiture of double contract 
 price, 1111. 
 forfeitiue of penalty, 1113. 
 Contracts; deUnquent bidder charged with difference 
 
 in cost, 1112, 1113. 
 Officers sued for official acts, 350, 351 . 
 Unliquidated, accounting officers' jurisdiction, 234. 
 DANISH WEST INDIES: 
 
 See Virgin Islands. 
 DATE: 
 
 Bee Antedating; Appointments. 
 Appointment — 
 
 Midshipman, 746. 
 When service commences, 838. 
 Bond, 480. 
 Commissions, 103. 
 
 conclusive upon accounting officers, 238. 
 defined, 668. 
 
 is date stated in commission, 652. 
 erroneous; jurisdiction of courts to correct, 834^ 835. 
 fictitious, 669. 
 
 length of service for promotion; whether com- 
 mences from, 464, 465. 
 midshipmen on graduation, 1479. 
 pay graduates of Naval Academy, 1221, 1222. 
 
 on promotion, 830-&32. 
 precedence; Army and Navy, 667. 
 commanding officers, 576. 
 dental oflacers, 1421. 
 Coast Guard and Navy, 1456. 
 governed by, 1390, 1421, 1429, 1456, 1511. 
 line officers, 068. 
 Naval Reserve Force, 1511. 
 Navy and Marine Corps, 667. 
 officer holding two commissions, 669. 
 staff officers, 1429. 
 promotion of naval officers, 1390. 
 seniority determined by, 652. 
 Death, to be entered in ship's books, 995. 
 DeUvery of naval supplies; bidders informed of re- 
 quirements, 1111. 
 Desertion, 1057, 1060. 
 
 to be entered in ship's books, 995. 
 Discharge, 826. 
 
 enlisted man, 568, 569. 
 Enhstment, 546, 790. 
 
 to be entered in ship's books, 995. 
 
 1607 
 
INDEX. 
 
 D ATE— Cont inued . 
 
 Examination for promotion, 710, 711. 
 
 Kxpiration of enlistment, 561. 
 
 Graduation, midsliipmen, 688. 
 
 Pay of naval olTiccr; when commcncp,s on original 
 
 entry, 829. 
 Promotion; antedating rank, 649-651. 
 Rank- 
 Promotion after suspension, 731-733. 
 Marine Corps, 1159. 
 pay computed from, 1178. 
 Resignation, 826. 
 Retirement, 591, 592, 638-640, 912. 
 Vacancy — 
 
 Commencement of pay on promotion, naval officer, 
 
 832. 
 Created by retirement, 649, 1431 . 
 
 Advancement of officer for heroism, 734. 
 N'cssels missing; fixing date of loss, 268. 
 DEAD BODIES: 
 
 Authority of naval medical officers to perform autop- 
 sies, 460, 461. 
 DEAF: 
 
 Accused unable to hear witnesses, 126. 
 DEALERS: 
 
 Bids submitted by persons who are not, 1114. 
 DEATH: 
 
 See Capital punishment; Chief s of bureaus; Line of duty . 
 
 Additional number officer; vacancy not filled, 1275, 
 1276. 
 
 Autopsies performed by naval medical officers, 460, 
 
 461. 
 Closing of departments for ex-official, forbidden, 1220. 
 Compensation for; naval persormel, 1498-1501. 
 Date of, to be entered in ship's books, 268, 995. 
 Deserter who fraudulently enlisted; payment of gra- 
 tuity, 554. 
 Disbursing officer; allowance to owner of lost check 
 issued by, 274. 
 duplicate checks, 1099. 
 Disposition of eflects, deceased persons; 786, 995, 1395, 
 
 1503. 
 Enlisted men- 
 Payment, eflEects lost on sunk or captured vessels, 
 269. 
 arrears due, 264. 
 Flags issued free of cost, used for draping coffins, 1397. 
 Funeral expenses, 537, 905, 906, 1103, 1.305, 1306, 1498. 
 Gratuity, not payable to persons in service on or after 
 October 6, 1917; 1500. 
 six months pay, naval personnel, 1546, 1547. 
 Head of department, temporarily filling vacancy, 212, 
 
 214. 
 Inmates of Naval Home; disposition of personal eflects, 
 1395. 
 St. Elizabeths Hospital; disposition of moneys, 
 1296. 
 Medal of honor, Navy cross, etc., awarded after, 1522. 
 Member of court-martial before signing record, 1034. 
 Officer of department, temporary appointment, 212, 
 214,216. 
 promoted; acceptance presumed, 97. 
 Presumption of; enlisted men on missing vessels, 268. 
 Promotion pending; effect of, 652. 
 Public buildings not to be closed, 1220. 
 
 draped in mourning, 1220. 
 Recording, naval personnel, 1500. 
 Settlement of accounts; payment of funeral expenses to 
 claimants, 1305, 1306. 
 DEBTS: 
 
 See Indebtedness. 
 
 DECEASED: 
 
 See Death. 
 DECK COURTS: 
 
 See Courts Martial. 
 
 (ieneral provisions relating to, 1308, 1309. 
 DECORATIONS: 
 
 Acceptance of foreign, by American forces, 1516. 
 Interelianged between United States and foreign 
 
 military forces, 1516. 
 President may confer upon foreign militarv forces, 
 
 1517. 
 Public wearing of foreign, forbidden, 1187. 
 Tendered through State Department, 1187. 
 Unauthorized wearing of foreign, 1515, 1516. 
 Wearing of foreign, by American citizens, 1516. 
 DEEDS: 
 
 Forgery of, 1322, 1323. 
 DE FACTO: 
 
 See Fraudulent enlistment. 
 Congressman; not legally elected, 33, 747. 
 Enlisted man, discharge of, 62, 567. 
 Enlistment, 548. 
 
 Naval officer; erroneously promoted, 70S, 709. 
 Retired officers, 641, 912. 
 Unauthorized office; no salary for, 1066. 
 DEFENDANT: 
 
 See Accused; Courts-martial. 
 
 Court of inquiry, entitled to cross examine witnesses, 
 1.32. 
 DEFENSE: 
 
 See Courts-martial. 
 Illegal order not, 55. 
 DEFENSIVE SEA AREAS: 
 
 Offenses relating to, 1327. 
 DEFICIENCIES: 
 
 Contracts; butter, cheese, and tobacco, for Navy 
 authorized for more than one year, 1113. 
 naval supplies, in excess of appropriations, 1116, 
 1288. 
 Penalty for incurring, 1104, 1105. 
 Restrictions on incurring, 1104, 1105, 1116, 1187, 1238, 
 1288,1381. 
 DEFINITIONS: 
 
 Particular words in Federal statutes, 185, 186, 1355. 
 DEGRADATION: 
 
 Witnesses; protection of, 123, 1310. 
 DELAYS: 
 
 Business of executive departments, 344. 
 Examination of officer for promotion, 734. 
 Proceedings of general court-martial, 1029. 
 Promotion; new physical examination not required, 
 
 709. 
 Retiring boards; President's action, 617. 
 DELEGATION OF POWERS: 
 
 Appointment of officers cannot be delegated, 207, 533. 
 Approval of bonds, 487. 
 
 Commanding officers; aid or executive acts for, 670. 
 Heads of departments; to subordinates, 193, 194, 213. 
 President; need not personally sign action in court- 
 martial cases, 1040-1042. 
 to flag officers; award of Navy crosses, 1522. 
 to Secretary of the Navy; action on records of 
 boards, 1481, 1482. 
 approval of regulations, 787. 
 to subordinates, 77, 78. 
 Regulations for naval forces. Congress may authorize 
 
 executive to make, 59, 195, 784, 787. 
 Reviewing authority, court-martial cases, must act 
 
 personally, 1040. 
 Secretary of the Navy, supervisory power over chiefs 
 of bureaus, 360. 
 
 1608 
 
INDEX. 
 
 DELEGATION OF POWERS— Continued. 
 
 Signature of official papers, 351. 
 Subordinate officers act for President, 77, 78. 
 DEUNQUEXCY: 
 
 Bidder failing to furnish required bond, 1112, 1113. 
 Contractors, 1111, 1113, 1U4. 
 
 Disbursing officers; allowed to remain in office, 494. 
 money requisitions disapproved for, 1225, 1226. 
 pay withheld; suit against sureties, 1072. 
 proceedings against, 427, 428. 
 reported to Congress, 1226. 
 suits against, 1097, 1098. 
 suit on bond; statute of limitations, 1199. 
 DEMANDS: 
 
 See Claims. 
 DENTAL CORPS: 
 
 Organization; number of officers; appointment; rank; 
 promotion; pay and allowances; retirement, etc., 
 1421, 1422. 
 Original appointments not affected by act of March 4 
 
 1917; 1473. 
 Part of Medical Department of Na\-j-, 1421. 
 Pay, 806, 1421, 1422. 
 Qualifications for appointment, 1422. 
 Service credited to officers for pay and promotion, 
 1473. 
 DENTAL, RESERIT: CORPS: 
 
 Navy; laws relating to repealed, 1423, 1509. 
 DENTAL TREATMENT: 
 Court-martial prisoners, 903. 
 Naval officers, 904. 
 DEPART3IENT: 
 
 See Executive departments; Navy Department. 
 Definition of, 191. 
 DEPART>IENT OF JUSTICE: 
 See Attorney General. 
 Argument of cases in court, 322. 
 Counsel furnished to departments investigating claims, 
 220. 
 to Heads of departments, 221. 
 to naval officer in foreign country, 224. 
 Duties, 222, 323. 
 
 General provisions relating to, 281-326. 
 Litigation; control of, 2S1. 
 Naval- 
 Officers detailed to duty under, 578. 
 Solicitor, 282. 
 
 duties assigned to Judge Advocate Oeneral, 
 1186, 1187. 
 Opinions to be rendered by officers of, 323. 
 Subordinates; duties of, 323. 
 
 sent into any State in connection with suits, 326. 
 DEPARTMENT OF THE NAVY: 
 
 See Navy Department. 
 DEPENDENTS: 
 
 Officers and enlisted men; death gratuity payable to, 
 1546, 1547. 
 quarters furnished for, 696. 
 transportation furnished for, 1.535, 1536. 
 DEPOSITIONS: 
 
 Admissibility in State courts, 125. 
 Attorney General may secure in any State, 323. 
 Chiefs of bureaus making for use in courts, 424. 
 Claims pending in departments, how obtained, 219. 
 Evidence before court-martial, 131, 1023, 1311, 1312. 
 For use in States, Territories, or foreign countries, 424- 
 Headsof departments, assistants, required tomake, 422- 
 Manner of taking and transmitting, 425. 
 Taking of, when no commission appointed, 425. 
 Use of in Federal courts, 421. 
 Witness fees allowed for giving, 425. 
 
 DEPOSITS: 
 
 Contrary to law; postal employees, 1344. 
 public moneys, 1329. 
 unauthorized banks, 1098. 
 Deductions not to be made from public moneys, prior 
 
 to, 1095, 109G. 
 Disbursing officers, 1096. 
 
 failure to make when required, 1.3.30. 
 Enlisted men; furloughed without pay, 537. 
 Marine Corps, 951, 1295. 
 Navy, 877, 1202. 
 
 rated as mates or appointed as warrant officers, 524. 
 Proposals for purchase of naval vessels must be accom- 
 panied by, 1192. 
 DEPUTY: 
 
 Disbursing clerk; premium on bond of, 211. 
 DEREUCTS: 
 
 Marking and removal of, 122:5. 
 
 Permanent appropriation for payment to salvors, 
 
 under Navy Department, 1100. 
 Removal of by naval vessels, 1284. 
 DESCRIPTIVE LIST: 
 
 Enlisted men furnished with whenever sent from 
 ship or transferred to other vessels, 995. 
 to be entered in ship's books, 995. 
 DESERTERS: 
 See Desertion. 
 Aiding or assisting; punishment for, 789, 790, 985, 
 
 1326, 1327. 
 Applicants failing to complete enlistment, 790. 
 Apprehending; estimates and appropriations for, 1103. 
 .Ajrest of, 117, 987, 1103, 1311. 
 Attorneys assisting, 790. 
 
 Convicted; appointment as officer of the Navy, 573. 
 Enlistment of, 551. 
 
 Entertaining, punishment, Na\-y, 985. 
 Failing to give notice of, to naval superior, 985. 
 Forfeiture of pay by, 869, 870. 
 In time of war; penalty for enlistment of, 994. 
 Naval, enlisting in Army; punishment for retaining, 
 
 1.544. 
 Receiving, without giving notice to naval superior, 985. 
 Record of in ship's books, 995. 
 Status not affected by resolution terminating war for 
 
 certain purposes, 1558. 
 Reward for; checkage of amount against pay unau- 
 thorized, 1004. 
 Time lost required to be made good before completion 
 
 of enlistment, 987, 988. 
 Void enlistment, miaors serving under cannot be, 976, 
 977. 
 DESERTING MAILS: 
 
 By any person in charge, 1339. 
 DESERTING TRUST: 
 
 In time of war, or aiding or enticing others to, 979. 
 DESERTION: 
 
 Acquittal of, effect, 988. 
 
 Aiding others to desert in time of peace, punishment. 
 
 Navy, 985. 
 Attempting to commit, in time of peace; punishment, 
 
 Navy, 98,5. 
 Charge; removal of, civil war cases, 1200, 1201, 1272. 
 Citizenship rights forfeited by, 73, 74, 140, 9.M, 1077, 
 
 1078. 
 Continuing offense, 75, 1060, 1061. 
 Date of— 
 
 Offense, 1057, 1000. 
 To be entered in .ship's books, 995. 
 Definition of, 987, 989. 
 During battle, 980. 
 Enlistment not completed, 790. 
 
 1609 
 
INDEX. 
 
 UKSKRTION— Continued . 
 Knticing — 
 
 Orassisting others to desert, 789, 790, 988, 1326, 1327. 
 Time of peace, Na^'y, 985. 
 Time of war, Navy, 979. 
 l'"orfoitures credited to uaval hospital fund, 1273. 
 Fraudulent enlistment not a defense, 977. 
 Increasing penalties, not ex posto facto, 7-5. 
 Intent to remain permanently absent; commissioned 
 
 officer, 9S9. 
 Minor serving under void enlistment can not commit, 
 
 976, 977. 
 Pardon to restore citizenship rights, 84. 
 Resignation of officer not accepted, 989. 
 Rewards for arrest of deserters, 118. 
 Statute of limitations; time of peace, 1060-1062. 
 
 Time of war, 1057. 
 Time of war, punishment for, Navy, 979. 
 DESICCATED VEGETABLES: 
 
 Purchase of for Na\-y, 1115. 
 DESTITUTE: 
 
 Seamen, 575. 
 DETACH: 
 
 Definition of, 443, 954. 
 DETACHMENTS: 
 
 ^^arine Corps, 936. 
 DETAILS: 
 
 .'^ee Active duty; Civil establishment; Foreign shore 
 duty; Line officers; Naval forces; Pay of Naval Estab- 
 lishment; Sea service; Vessels of the Navy. 
 Appropriations transferred for expenditure by bureau 
 
 or department performing service, 1409, 1536. 
 Civil employees — 
 
 From outside of District of Columbia, restricted, 
 
 1188, 1290, 1384. 
 Government Printing Office; restrictions on, 1359, 
 
 1360. 
 Restrictions on extra pay or allowances, 1066-1071 . 
 Toimauthorized boards, commissions, etc., 1316. 
 Within department, 203. 
 Coast Guard personnel; duties, 1456. 
 Duties not military; court martial jurisdiction with 
 
 relation to, 977. 
 Enlisted men — 
 
 Of 20 years' service preferred for, 1297, 1298. 
 To Dominican Republic, 1502. 
 executive departments, 337. 
 Haiti, 1416. 
 
 nautical school in Philippines, 1297. 
 Executive departments to assist Smithsonian Institu- 
 tion in acquisitions for Zoological Park, 1204. 
 Fisheries; heads of departments to assist commis- 
 sioner of, 1133. 
 Line officers, to duty under staff officers, 1359. 
 Marine Corps — 
 
 As cooks; additional pay for, 1299. 
 
 Shore duties, 955. 
 
 Staff departments, 922, 1460, 1461. 
 
 to duty away from headquarters, 922. 
 To naval vessels, 954. 
 To duty with Army, 956. 
 Naval forces — 
 
 Enforcement of immigration law, 1081. 
 
 of sponge law, 1289,1290. 
 Protection of accused extradited from foreign gov- 
 ernment, 1167. 
 of fur seals, 1387. 
 of timber, 1088. 
 Suppression of piracy, 1130, 1131. 
 To enforce regulations, regattas or marine parades, 
 1300, 1301. 
 
 DETAILS— Continued. 
 
 Naval forces— Continued. 
 
 To prevent aliens fishing in Alaskan waters, 1289. 
 remove derelicts at sea, 1284. 
 .Naval medical officer — 
 
 To advisory board: Public Health Service, 1279. 
 Hureau of War Risk Insurance, 1495. 
 Red Cross, 1436, 1437. 
 Naval officers — 
 
 Aid or executive of commanding officer, 669, 779. 
 And men; transportation of families and house- 
 hold elTects, 153'), I5:;r). 
 As attache to diplomatic officer, 828. 
 commandant of navy yard, 779. 
 counsel for examining board, 723. 
 firstlieutenant of station or vessel, 577. 
 governor of Virgin Islands, 1470. 
 professors at Naval Academy; relative rank 
 
 with Army, 667. 
 secretaries and clerks at sea, 1182. 
 storekeeper at Naval Academy, 770. 
 
 on foreign station, 579. 
 superintendent. Naval Observatory, 1276, 1277. 
 supervisor of New York Harbor, 1198, 1199. 
 Ineligible for civil positions at navy yards, 770, 780. 
 Power of Congress and President, 578. 
 Shore duty — 
 
 In time of war or emergency; eligibility for 
 
 promotion, 1434. 
 Must be required by public interests, 1191, 
 1218, 1219. 
 To advisory committee for aeronautics, 1402. 
 Alaska, 1393. 
 aviation duty, 1437-1440. 
 Brazil; leave of absence, etc., 1399. 
 Coast and Geodetic Survey, 1151, 1215. 
 command squadrons with rank of flag officer, 
 
 576. 
 Dominican Republic, 1502. 
 Department of Justice, 578. 
 educational institutions, 435-441, 701, 1184, 
 
 1185, 1247, 1248. 
 engineering duty, 1435. 
 examining boards upon repairs to vessels, 776, 
 
 777. 
 Haiti, 1416. 
 
 light-house estaliUshment, 1149, 1298. 
 Nautical Almanac Office, 391. 
 Naval Academy; duties; punishment for ne- 
 glect, 1287. 
 Naval Observatory; board of visitors to recom- 
 mend, 1276. 
 nautical schools, 1368. 
 
 Navy Department, 213, 215, 333, 337, 3G4, 466. 
 assistants to chiefs of bureaus and Judge- 
 Advocate General, 466, 1222, 1224, 
 1261, 1284, 1418. 
 to Chief of Naval Operations, 1418. 
 chiefs of bureaus, 362. 
 Hydrographic Office, 389, 1508, 1545. 
 ocean mail vessels; 1216, 1217. 
 Shipping Board, 1466. 
 South American Repubhcs, 1556. 
 
 commercial interests, 576. 
 vessels of the Navy, 775. 
 War Department, 507, 578. 
 
 additional compensation not allowed, 1071 . 
 supervisor of New York Harbor, 1198. 
 Payment for services rendered by one department for 
 
 another, 579, 1409, 1536. 
 Petty officers to educational institutions, 441. 
 
 1610 
 
INDEX. 
 
 DETAILS— Continued. 
 Rear admirals — 
 
 And captains to command fleets and subdivisions, 
 
 1481. 
 To selection boards, 1430. 
 Shore duty beyond seas, defined, 127'>. 
 Smithsonian Institution; executive departments to 
 assist in acquisitions for Zoo, 1204. 
 DETECTIVES: 
 
 Arrest of deserters by, 118. 
 Employment of restricted, 118, 1220. 
 DETENTION: 
 
 Defined; voluntary agreement not included, 559. 
 Enlisted men; after expiration of enlistment, 542, 543, 
 555-562, 1064. 
 pay, 873, 874, 883. 
 DIPHTHERIA: 
 
 Immunization injections; naval personnel required to 
 submit to, 458. 
 DIPLOMATIC SERVICE: 
 
 Jurisdiction of, and military authorities, 576. 
 Naval officer appointed in, vacates office, 579. 
 DIRECTOR: 
 
 Civilian marksmanship; marine officer eligible for ap- 
 pointment as, 1465. 
 DISABIUTT: 
 
 SeeLineof duty; Retirement; Veterans; War Risk act. 
 Admission to National Home for Disabled Volunteer 
 
 Soldiers, 1400, 1401. 
 Artificial limbs aUowed, 1156, 1157, 1181, 1217. 
 Civil employees; compensation for, 1467-1469. 
 
 retirement for, 1538, 1539. 
 Compensation for, naval personnel, 1498-1501. 
 Disciiarge; enlisted men; not incurred in line of duty; 
 
 refund of enlistment bounty, 1292, 1294, 1298. 
 Enlisted men; allowances to, 1154-1157, 1498-1501. 
 separate compartment on vessels for treatment of, 
 995. 
 Incident to the service; retirement, 603. 
 Mental; retirement for, 593. 
 Misconduct causing; absence from duty on account of, 
 
 1436. 
 Soldiers, sailors , and marines; furlough certificates; re- 
 duced railroad fares, 1554. 
 Trusses furnished to enlisted men of Navy, 1185. 
 DISAPPROVAL: 
 
 Court-martial proceedings; effect of, 988, 1008, 1009, 
 1038. 
 DISASTER: 
 
 Marine, construed, 272. 
 DISBURSING AGENTS: 
 
 Public buildings, 261. 
 DISBURSING CLERKS: 
 
 Authority limited to payments not requiring judg- 
 ment, 212. 
 Bonds appUcable to temporary substitute, 1315, 1316. 
 Deputy, premium on bond, 211. 
 Detailed to disburse moneys for another department, 
 
 212. 
 Employed in excess of appropriations, 211. 
 Executive departments; appointment, bond, and com- 
 pensation, 209. 
 Held to be clerks, 206. 
 Position can not be abohshed without statutory author- 
 
 ity, 204, 212. 
 Responsibility for payments, 212. 
 Temporary absence; substitute, 1315, 1316. 
 DISBURSING OFFICERS: 
 
 See Accounting officers; Accounts; Bonds; Crimes; Sup- 
 ply Corps. 
 
 DISBURSING OFFICERS— Continued. 
 Accounts — 
 
 Failure to render, 1330. 
 
 Falsification of; punishment, 1368. 
 
 Form of, 1097. 
 
 Navy Department expenditures; form of, 1102, 
 1103. 
 
 To be kept by; receipts and expenditures, 109S. 
 rendered quarterly and when otherwise re- 
 quired, 1215. 
 
 Unchanged for three years, 279. 
 Additional pay for disbursing money restricted, 10'>7. 
 Advances of public money restricted, 1099, 1100. 
 Acmual statement of expenditures required to be sub- 
 mitted, 226. 
 Arrears; withholding pay until accounting, 1072. 
 Checks; issuing for less than one dollar; punishment, 
 1337. 
 
 lost or stolen; dupUcates, 1098, 1099. 
 
 outstanding, 276-278, 1417. 
 Commanding officer not required to act as, 574. 
 Commissions and inquiries; expenses of, not to be paid 
 
 without special appropriation, 1105. 
 Conversion of moneys by, 1098, 1329. 
 Death of; duplicate checks issued, 1099. 
 Decision of accounting officers may be obtained by, 
 
 1225. 
 DeUnquency — 
 
 Money requisitions disapproved, 1225, 1226. 
 
 Proceedings against, 427, 428, 1097, 1098. 
 
 Remaining in office after, 494. 
 
 Reported to Congress, 1226. 
 
 Suit on bond; statute of limitations, 1199. 
 
 Withholding pay; suit against, 1072. 
 Deposit of money, 1096. 
 
 contrary to law, 1098, 1329. 
 
 failure to make as required, 1330. 
 Disbursements to be made in specified currency, 1100. 
 Dismissed for making unauthorized exchange of funds, 
 
 1100. 
 Drafts to be promptly presented for payment, 1100. 
 Duplicate checks issued for lost or stolen, 1098, 1099. 
 Duty, 1098. 
 
 to keep moneys safely, 1098. 
 E mbezzlement — 
 
 Evidence against, 428. 
 
 General provisions, 1329-1331. 
 
 Public or private money or property, 1331. 
 Exchange of funds restricted, 1098, 1100, 13,30. 
 Failing safely to keep public moneys, 1329, 1330. 
 False accounts, records, or reports: punishment, 1368. 
 Foreign stations; appointment of, 788. 
 Fuel payments; credit not allowed without certificate, 
 
 1110, nil. 
 Indebtedness; failure to pay into Treasury reported to 
 
 Congress, 1226. 
 Larceny of checks; dupUcates issued, 1098, 1099. 
 Loans by, prohibited, 1098, 1329. 
 Lost or stolen checks; duplicates, 1098, 1099. 
 Navy; accounts rendered direct to accounting officers, 
 1097. 
 
 amounts lost or unaccounted for reported annually 
 to Congress, 118:3. 
 Payment made in specified currency, 1100. 
 
 of funds re(iuired, when ordered, 1098. 
 Premium on sale of public securities, 1100. 
 Receipts for larger sum than paid by, 1329, 1331. 
 Regulations governing duties of, 786, 1098. 
 Relief from responsibility for losses, 488, 1362, 1363, 
 1527, 1528. 
 
 .M641°— 22- 
 
 -102 
 
 1611 
 
INDEX. 
 
 DISBURSING OFFICERS— ContinuPd. 
 
 Report to Congress of expenditures from naval appro- 
 priations; Secretary of the Treasury to submit, 1183. 
 Responsibility of; insurer of funds, 487. 
 Safe-keeping of public moneys required, 1098. 
 Special agents; bonds of, 1095. 
 Stolen checks; duplicates, 1098, 1099. 
 Suspended for making unauthorized exchange of funds, 
 
 1100. 
 Time for rendering accounts, 1097, 1215, 1225, 1226. 
 Trading in funds or property, Federal or State, 1332. 
 Transfer of funds required when directed, 1098. 
 Transferring money contrary to law, 1329. 
 Use of funds contrary to law, prohibited, 1098. 
 Witlidrawing money contrary to law, 1329. 
 DISCHARGE: 
 
 SeeDismiKsal; Dropped; Habeas corpus; WhoUy rcUred . 
 Acting assistant surgeon; acceptance of another office, 
 529. 
 
 chaplains failing on examination, 1396. 
 
 warrant ofTicers: reenlistment, 525. 
 Bad conduct; illegal; set aside by Secretary of the 
 Navy, 1008, 1009. 
 
 men furnished with clothing, 1107. 
 
 not to be executed in foreign country, 1008. 
 
 summary court-martial may adjudge, 1006. 
 
 war risk compensation excluded by, 1500. 
 Certificate — 
 
 Counterfeiting, 569, 1473. 
 
 In true names, 1379, 1380. 
 
 Necessity for, 568. 
 
 Theft of, 509. 
 Character of; Navy Department's determination 
 
 final, 566. 
 Civil establishment, 99, 338, IISO, 1388. 
 Clothing outfit refunded on, 1292, 1294, 1298, 1402, 1403. 
 Commanding officers shall grant, 573. 
 Congress, power of, to remove officer, 635. 
 Continuous-sersice certificates, 569. 
 Court-martial jurisdiction after, 63, 567, 974, 991, 1060. 
 Date effective, 568, 569. 
 
 pay until notified, 826. 
 Deck courts may not adjudge, 1308. 
 De facto enlisted man, 62, 567. 
 
 Disability; not in line of duty; refund of enlistment 
 bounty, 1292, 1294, 1298. 
 
 preference in appointment to civil offices, 1035. 
 Disbursing officers making unauthorized exchange of 
 
 funds, 1100. 
 Dishonorable; men sentenced to arc additional to en- 
 listed strength, 536, 1423, 1463, 1478. 
 
 war risk compensation excluded by, 1500. 
 Due process of law, navarofficer unfit for promotion, 124. 
 Effect of, 566, 567. 
 
 on indebtedness of enlisted man, 245-246. 
 Enlisted men; amenable to descipline until discharged, 
 9%. 
 
 appointed as commissioned officers, 523. 
 as warrant officers, 523. 
 
 detained after expiration of enlistment, 555, 556. 
 
 foreign port, 555, 556. 
 
 furlough without pay, 871, 872. 
 
 general provisions relating to, 562-570. 
 
 indebted to Government, 500. 
 
 jurisdiction pending reenlistment : subject to regu- 
 lations, etc., 1201, 1202. 
 
 mileage and transportation furnished, 874-876, 1415. 
 
 not troops of United States after, 1180. 
 
 rated as mates, 52;?. 
 
 reenlistment in different branch; travel pay al- 
 lowed, 1551, 15.52. 
 
 DISCHARGE— Continued. 
 
 Enlisted men, refund of bounty, 1292, 1294, 1298. 
 
 reinstatement in civil establishment, 1464, 1476, 
 
 1524, 1530. 
 sentenced to; additional to authorized strength. 
 
 Navy, 536, 1423, 1463, 1478. 
 transferred to Fleet Naval Reserve, 871. 
 transferred to Hospital Corps, 555. 
 Expiration of enlistment; three months prior to, 1381, 
 
 1382. 
 Female nurses. Navy, 1303, 1304. 
 Forciini country; bad conduct, not to be executed in, 
 
 1000. 
 Forging certificat&s of, 569, 1473. 
 Furlough in lieu of, 1436. 
 
 Honorable; after one year's service as enlisted man; 
 law repealed, 1419. 
 burial in national cemeteries, 1163. 
 commanding officer to grant, 573. 
 definition of; mileage law, 875. 
 effect of, 870. 
 
 enlisted men allowed home on receiving ship 
 pending reenlistment, 1201, 1202. 
 entitled to, 562. 
 form of, 569. 
 graduates of Naval Academy not needed to fill 
 
 vacancies, 1188, 1189. 
 gratuity on reenlistment, 883-891, 947. 
 officers may be reappointed in Navy after, 1393. 
 
 morally imfit for promotion, 630. 
 ordinary discharge distinguished; definitions, .564, 
 
 886. 
 preference for appointment as warrant officers, 534. 
 in civil employment, 338, 339, 780, 1065, 1180, 
 1383, 1524, 1526, 1530. 
 reinstatement in civil establishment after war with 
 
 Germany, 1530. 
 report of men entitled to, 573. 
 testimonial of fidelity and obedience, 573. 
 Illegal; court-martial sentence set aside by Secretary 
 
 oftheNax-y, 1008. 
 Inaptitude; refund of enlistment bounty, 1292, 1294, 
 
 1298. 
 Lost; certificate in lieu of, 1203, 1204. 
 Medical survey; transportation home, 875, 1274, 1275. 
 Men sentenced to, excluded from enlisted strength, 
 
 536, 1423, 1463, 1478. 
 Minors, on request of parents, 1402, 1403. 
 Naval Reserve Force; refund of clothing gratuity, 
 1444, 1447. 
 released from active duty; deposits paid, 877. 
 restrictions on, Fleet Naval Reserve, 1451. 
 Ofllcer— 
 
 Accepting appointment in diplomatic or consular 
 
 service, 579. 
 Dropped from rolls for absence without leave, 1011, 
 1012. 
 for unauthorized absence, imprisotmient, etc., 
 1503. 
 Failing to pass professional rexamination. Marine 
 Corps, 1463. 
 toquaUfy for promotion in Navy, 729-734, 1189. 
 Incurring deficiencies in violation of law, 1104, 1105. 
 Unfit for promotion by reason of dnmkenness, 
 etc., 623, 6.30, 1189. 
 Ordinary; distinguished from honorable, 564, 886. 
 Preference of soldiers and sailors for civil employment, 
 
 338, 339, 780, 1065, 1180, 1383, 1524, 1526, 1530. 
 Prior to expiration of enlistment, 934. 
 Prisoners; not troops of United States after, 1180. 
 transportation and clothing furnished, 1313. 
 
 1612 
 
INDEX. 
 
 DISCHARGE}— Continued. 
 
 Purchase; fiu-lough in lieu of, 14^6. 
 Navy and Marine Corps, 1222. 
 Refund of clothing outfit, 1292, 1294, 1298, 1402, 1403. 
 
 minor who fraudulently enlisted, 1402, 1403. 
 Request; refund of enlistment bounty for, 1292, 1294, 
 
 1298. 
 Revocation — 
 
 Amenabihty to court-martial after, 975. 
 Court-martial sentence held illegal, 568, 1008, 1009- 
 Fraud, 568. 
 
 Of appointment, acting chaplains, 1396. 
 acting ensigns, 1435. 
 Marine Corps, 1461, 1462. 
 Ship's company; vessel lost; amenable to discipline 
 
 until discharged, 996. 
 Special order; furlough in lieu of, 1436. 
 Terms construed and distinguished, 97. 
 Warrant officer, revocation of appointment, 524. 
 AVhoUy retired, synonymous with, 030. 
 Undesirable; refund of enlistment bounty, 1292, 1294, 
 
 1298. 
 War Risk compensation, etc., barred by, for cause, 
 1496. 
 DISCIPLINE: 
 
 See Articles for the government of the yavy. 
 Conduct to the prejudice of, 1000. 
 Enlisted men amenable to until discharged, 996. 
 Jurisdiction over soldiers during war, 42. 
 Marine Corps; regulations governing, 956. 
 Violation of, after loss of vessel; punishment, Navy, 
 996. 
 DISCRETION: 
 
 Appointing power, 95. 
 
 Commanding officer of naval vessel, 1003. 
 
 President; reference of cases to retiring boards, Na^^, 
 
 598. 
 Public officer, not reviewable, 242, 243. 
 Secretary of the Navy, 344, 345. 
 
 allowance of actual expenses for repeated travel, 
 1272, 1273, 1274, 1278. 
 of pay to employees, insular possessions, in 
 transit, 1278. 
 not reviewable, 237, 828, 829. 
 DISCRIMINATION: 
 
 Against uniform of Navy, Marine Corps, etc., 1360. 
 DISEASE: 
 
 See Line of duty. 
 
 Absence from duty caused by; due to misconduct, 825, 
 
 1436. 
 Communicable; cooperation of Navy Medical Depart- 
 ment to suppress, 1520. 
 Compensation for, naval personnel, 1498-1501. 
 Contagious; civil employees granted leave because of, 
 
 1221. 
 Detention, isolation, quarantine, or commitment to 
 
 institutions for prevention of, 1517. 
 Injury defined to include, 1496. 
 Medical injections to prevent; naval personnel must 
 submit to, 458. 
 officers to consult in difficult cases, 466. 
 treatment; naval personnel required to submit to, 
 458. 
 Protection of naval forces against, 1517. 
 Records to be kept of treatment and character of, 466. 
 DISMISSAL: 
 
 See Discharge; Dropped; Wholly retired. 
 Accepting appointment in diplomatic or consular ser- 
 vice, 579. 
 Acquiescence in; effect of, 826, 989. 
 Acting master's mate not a warrant officer, 1045. 
 
 DIS>USSAI^— Continued. 
 
 Additional number officer; vacancy not filled, 1275^ 
 
 1270. 
 Cashiered distinguished, 1032. 
 Chief of bureau; sentence of court-martial, 8:J9. 
 Civil establishment; inefficiency, etc., 1383, 1388. 
 instructor. Naval Academy, 1287. 
 service law; persons violating, 13S5, 1384. 
 Commissioned officer; sentence must be confirmed by 
 
 President, 1036. 
 Compensation and benefits under War Risk act, 
 
 barred by, 1496. 
 Confirmation by President; form of action, 1010-1042. 
 
 warrant officer reduced to enlisted rating, 524. 
 Congress; power of, to remove officer, 635. 
 Contributions for presents to superiors ground for, 
 
 1073. 
 Court-martial jurisdiction after, 63, .567, 974, 991, lOtiO. 
 Disbursing officers making unauthorized exchange of 
 
 funds, 1100. 
 Discharged, dismissed, and wholly retired; terms ex- 
 plained, 97. 
 Effect of; midshipman dismissed for hazing, 1281. 
 Illegal; revocation of, 1011. 
 Indirect, by appointment of successor, 1011. 
 Injunction to prevent, 99. 
 
 Irregularities of board by which officer mustered out , 69. 
 Mandator^' in certain cases, 994, 1029, 1031, 1064. 
 
 naval officer failing to report offenses by midshii)- 
 men, 1287. 
 Member of court-martial absent without authority, 
 
 1031. 
 Midshipmen, 752, 755-760. 
 
 court-martial sentence, confirmation of I'rcsident 
 
 required, 1248. 
 effect of, 761, 1178. 
 eligibiUty for reappointment, 582. 
 hazing, 1178, 12S1, 1286. 
 procedure to be followed, 1286. 
 reinstatement, 1178. 
 
 single act of hazing; court-martial required, 12S6. 
 without court-martial, exception, 1286. 
 Mitigation of court-martial sentence, 1053. 
 Naval officer — 
 
 Dropped from roUs for unauthorized absence, etc., 
 
 1503. 
 Ineligible for reappointment, 582. 
 Pay on restoration, 1178. 
 Restrictions on, 441, 1010-1014. 
 Under arrest must confine himself, under penalty 
 
 of, 1029. 
 Unfit for promotion by reason of dnuikenness, etc.; 
 pay, 623, 1189. 
 Niu-se Corps, female, 1303, 1304. 
 Officer- 
 Accepting presents from inferiors, 1073. 
 Appointed for fixed term; power of President, 365. 
 Dropped for absence without leave, or confinement 
 
 by civil authorities, 1010, 1012. 
 Failing to qualify for promotion, discharged, 72^ 
 
 734. 
 Influencing legislation or attempting to do so, 1527. 
 May demand trial after, 1012-1014. 
 Withholding public moneys punishable by, 1096. 
 Pharmacists removable in the discretion of the Secre- 
 tary of the Na\T, 1262. 
 President's power — 
 
 Decisions relating to, 97-99. 
 Restrictions on, 441, 1010-1014. 
 With consent of Senate, 98. 
 
 1613 
 
INDEX. 
 
 DISMISSAL-Continued. 
 Reappointment of ofBcers — 
 And midshipmen, 582, 1178. 
 Dropped from rolls for unauthorized absence, etc., 
 1503. 
 Reconsideration of reviewing authority's action ap- 
 proving sentence, 103-8, 1039. 
 Reduction of ofllcer to enUsted rating; sentence con- 
 firmed by President, 1045. 
 Resignation to escape; naval officer ineligible for reap- 
 pointment, 582. 
 Restoration of officer, 94, 582, 1012, 1178. 
 Revocation of appointment as mate, 522. 
 of recess commission, 100. 
 of dismissal, unauthorized, 761. 
 Sentence must be confirmed by President, 1036. 
 Superintendent of Naval Academy, for neglecting in- 
 structions to midshipmen, 1195. 
 Veto of bill altering records, 35. 
 
 restoring officer, 34. 
 Void in certain cases, 1012-1011. 
 Warrant officer; revocation of appointment, 524. 
 
 sentence must be confirmed by President, 1036. 
 War Risk compensation barred by, 1500. 
 DISOBEDIENCE: 
 
 Accounting officers can not relieve officers from respon- 
 
 sibiUty for, 239, 240. 
 Medical treatment; refusal to submit to, 458. 
 Nature of the offense, 980, 981. 
 Punishment for. Navy, 979. 
 
 negligence in obeying orders, Navy, 984. 
 Refusal of officer to submit to surgical operation, 615, 
 
 616. 
 Repeated offense, 1003. 
 
 Violating or refusing obedience to general order issued 
 by Secretary of the Navy, 985. 
 DISRATING: 
 
 Incompetency; siumnary court-martial's power, 1007. 
 DISRESPECT: 
 
 Punishment for, Navy, 984. 
 DISTINGUISHED CONDUCT: 
 
 Advancement of naval officers for, 453, 454. 
 Conflict with the enemy, thanks of Congress for, 736. 
 Enlisted men in battle, 1275. 
 Marine officers advanced for, 921. 
 Medals for, 512, 1275, 1402, 1521-1523. 
 DISTRESS: 
 
 Naval vessels assisting distressed navigators, 775. 
 estimates and appropriations for, 1103. 
 DISTRICT ATTORNEYS: 
 
 Attorney General to supervise and direct, 323. 
 ('ompensation for examining titles, 294. 
 Duties; prize cases, 1139. 
 
 titles to public property, 283. 
 Removal by President, 365. 
 
 Services performed for executive departments, 222. 
 Special counsel employed to assist, 324, 325. 
 DISTRICT OF COLUMBI.l: 
 See Seat of Government. 
 Advertising in, 1123, 1187. 
 Buildings — 
 
 Executive departments may rent others instead of 
 
 ones occupied, 1187. 
 Owned by Government; reports to Congress con- 
 cerning, 1553. 
 Rented; reports concerning, 1218, 1391, 1543. 
 specific appropriation required, 1181, 1182. 
 Courts of; Federal employees witnesses before, 416. 
 requiring assistant head of department to give 
 testimony, 422. 
 
 DISTRICT OF COLUMBIA-Continued. 
 
 Deeds to land in, acknowledgments in Guam, Samoa, 
 
 and Canal Zone, 1291, 1292. 
 Departmental books transferred to public library of, 
 
 1280. 
 Employees of, not officers of the United States, 415. 
 Fuel— 
 
 For departments in; purchase and storage, 1507. 
 
 advance deliveries of, 1553. 
 For naval establishment in, 15C0. 
 Yards in; trucks to be used for other hauling for 
 Government, 1553. 
 Laws of, applicable to public buildings, 332. 
 Office space in, controlled by Public Building Com- 
 mission, 1524, 1525. 
 Register of wills to prepare guardianship papers 
 
 without charge, 1217. 
 Subsistence of officers and employees traveling outside 
 of, 1394, 1398. 
 DIVINE SERVICES: 
 
 Chaplains to conduct on Sunday, 979. 
 DIVISION OFFICERS: 
 
 Ensigns: duty as, 704. 
 DIVISIONS: 
 
 Commanding officer of may convene general court- 
 martial, 1442. 
 DOCKAGE: 
 
 Estimates and appropriations for, Navy, 110!. 
 DOCKS: 
 
 Transfer of floating dry dock from one na\y yard to 
 another, 779. 
 DOCTORS: 
 
 See Medical Corps. 
 DOCUMENTARY EVIDENCE: 
 
 Affidavits not admissible before court of inquiry, 1050. 
 Copies of consular records, 429. 
 of court-martial records, 1036. 
 of departmental records, 424, 426, 427, 428, 1009, 1010, 
 1023. 
 Court of inquiry— 
 
 Admissibility of papers before, 1056. 
 Proceedings admissible before court-martial, 131, 
 1056, 1057. 
 Embezzlement cases, 428, 1330, 1331. 
 Extracts from journals of Congress, 428. 
 Handwriting, 1389. 
 Papers illegally seized; whether admissible against 
 
 accused, 1023, 1024. 
 Transcript of Treasury Department records, 420, 427. 
 Witness refusing to produce before naval court: punish- 
 ment, 1310. 
 DOCUMENTS: 
 
 See Printing and binding. 
 DOIVUCILE: 
 
 Candidates for appointment as midshipmen, 750, 751. 
 DOMINICAN REPUBLIC: 
 
 Detail of naval personnel to assist; appointment to 
 office under, 1502. 
 DONATIONS: 
 See Gifts. 
 
 Civil service retirement and disability fund may re- 
 ceive, 1540, 1541. 
 DOUBLE JEOPARDY: 
 
 See Jeopardy. 
 DOUBLE SALARIES: 
 
 Naval officers holding offices under South American 
 
 Republics, 1556. 
 Restriction on, 208, 1066-1071, 1177, 1411. 
 DRAFT: 
 
 Disbursing officers to present promptly for payment, 
 1100. 
 
 1614 
 
INDEX. 
 
 DRAFT— Continued . 
 
 Liability of officers, merchant vessels, to service in 
 
 time of war, 1249. 
 Power of Congress to compel mUitary service, 47. 
 DRAFTSMEN: 
 
 Employment from naval appropriations restricted, 
 1281. 
 DRAWING: 
 
 Estimates and appropriations for. Navy, 1103. 
 Professor of, Naval Academy, 771. 
 DROPPED: 
 
 Officers absent without leave or in confinement by 
 civil authorities, 1010, 1012, 1503. 
 failing to qualify for promotion, 729-734. 
 DRUGS: 
 
 Absence from duty caused by, 825, 1436. 
 DRUNKENNESS: 
 
 Absence from duty, naval personnel, caused by, 825, 
 
 1436. 
 Naval officer unfit for promotion by reason of; dis- 
 charge; pay, 1189. 
 Punishable by naval court-martial, 984. 
 DRY DOCKS: 
 
 Transfer of floating, from one navy yard to another,779. 
 DUELS: 
 
 Sending or accepting challenge to fight, in Navy, 984. 
 DUE PROCESS OF LAW: 
 Decisions relating to, 123-126. 
 Excessive bail, excessive fines, and cruel and unusual 
 
 punishments, 125. 
 Fair and impartial trial, 125, 126. 
 Review of proceedings of trial court, 125. 
 Self-crimination, ^25. 
 DUTY: 
 
 Absence from, without leave, or after expiration of 
 
 leave, 985. 
 Coal imported for Navy subject to, 140S. 
 Culpable ineflBciency in performance of; j)unishment, 
 
 Navy, 984. 
 Extra- 
 Imposed by commanding officer as pimishment, 
 
 1002. 
 Police; summary court-martial may adjudge, 1007. 
 Foreign war material for Navy imported free of, 1396. 
 Importing in naval vessel goods subject to, 989. 
 Questions of, are military questions, 932. 
 Suspension from, by commanding officer, as punish- 
 ment, 1002. 
 Without troops; definition of, 702. 
 DYING DECLARATIONS: 
 
 Admissibility as e\'idence, 132. 
 EDUCATIONAL INSTITUTIONS: 
 Enlisted men detailed to, 441. 
 
 Naval officers detaUed to, 435-441, 701, 1184, 1185, 1247, 
 1248. 
 EFFECTS: 
 
 Deceased naval personnel; disposition of, 786, 995, 
 
 1395, 1503. 
 Lost in naval service — 
 
 Decisions relating to, 269-274. 
 
 Jurisdiction of accounting officers and Secretary 
 
 of the Navy, 272. 
 Reimbursement, 271, 1492-1494. 
 Lost on vessels, 269. 
 
 permanent appropriation for reimbursement, 1106. 
 Transportation of, naval personnel, 1535, 1536. 
 EFFICIENCY: 
 
 Bureau of; assistance to be furnished to, 1469, 1470. 
 Experts; restrictions on employment of, 1394. 
 
 EFFICIENCY— Continued. 
 
 Improvements suggested by civil employees; cash re- 
 wards, 1514. 
 Ratings, civil establishment, 1383. 
 EIGHT-HOUR LAW: 
 
 Contract provisions relating to, 1370, 1371. 
 
 Government work, 1219, 1220. 
 
 Laborers, workmen, and mechanics employed by or 
 
 for United States, 1117. 
 Suspension of, in national emergency, 1474. 
 ELECTIONS: 
 
 Army and Navy officers not to interfere with, 1079. 
 Force at navy yard not to be increased Ijefore, 1180. 
 Naval personnel's right to vote not restricted by 
 
 criminal code, 1321. 
 Offenses by naval officers in connection with, 1321. 
 ELLIGIBILITY: 
 
 See A ppointmentfi . 
 EMBARGO: 
 
 Shipments for United States not to be delayed by, in 
 time of peace, 1198. 
 EMBEZZLEMENT : 
 
 Decisions relating to, 993, 997, 998. 
 
 Definition of, 1329-1331. 
 
 Disbursing officers and others; general provisions, 
 
 1329-1331. 
 Evidence; records, etc., 1330, 1331. 
 
 transcript from Treasmy records, 428. 
 Indictment for, 1330. 
 Loans by officers of Supply Corps, 497. 
 Mail matter by postal employee, 1338, 1339. 
 Money — 
 
 Or property intended for naval service, 990, 1325. 
 
 on prize; punishment, Navy, 994. 
 PubUc or private, by public officer, 1331. 
 Naval personnel; pubUc or private money or properly; 
 
 insurrection, 1170. 
 Postal funds by postal employees, 1344. 
 Post-office property, 1337. 
 
 Property, public or private, by public officer, 1331. 
 Public money or property, 1328. 
 EMERGENCY: 
 
 Appropriations may be exceeded in case of, 1105. 
 Authorized enlisted strength increased during, 1463, 
 
 1528. 
 Coast and Geodetic Survey transferred to Navy dur- 
 ing, 1479, 1480. 
 Commandeering of vessels for naval purposes, 1467. 
 Contracts made without advertising for proposals, 
 
 1109. 
 Courts-martial, naval; how constituted during, 1494. 
 Furlougbed enlisted men subject to recall during, 1436. 
 Lighthouse Service transferred to jurisdiction of Navy 
 
 during, 1456, 1457. 
 Naval Reserve Force; active service during, 1443, 1447, 
 1452. 
 precedence during, 1511. 
 promotion during, 1510. 
 Procurement of vessels during, by contract with 
 
 owners, 1453. 
 Retired enlisted men, active duty during, 1451. 
 
 officers, active duty, pay and allowances, 1512, 
 1513. 
 Suspension of eight-hour law during, 1474. 
 Voluntary services may be accepted in case of, 1104. 
 EMERGENCY FLEET CORPORATION: 
 
 Restrictions on payment of lump-sum employees, 1491, 
 
 1492. 
 Transfer of employees to and from departments, 1491. 
 
 1615 
 
INDEX. 
 
 ESniVENT: 
 
 Coiuiuct ill battle, 734-736, 933. 
 
 Domain; condemnalioii proceedings to obtain laud 
 for buildings, etc., 1199, 
 EIVIOLUIVIENTS: 
 
 Deniiition, 827, 828, 892. 
 EMPLOY: 
 
 Definition, 206, 1250. 
 E.\IPLOYEES: 
 
 See Civil establishment. 
 
 Compensation act, 1467-1469. 
 
 Nurse Corps (female) not entitled to benefits of. 
 1500. 
 Held to be officers, 413. 
 E>IPLOYIVIENT: 
 Definition, 1250. 
 EXE^FY: 
 
 See Battle; War. 
 
 Confiscation of property, 40. 
 
 Connict with; highly distinguished conduct; thanks 
 
 of Congress for, 736. 
 Defined. 892. 
 
 Delivering messages from, 981. 
 Flags of; collected by Secretary of Navy, 381, 790. 
 Inhabitants in country of, 40. 
 Intercourse with; punishment for unauthorized, 979. 
 Seizure of vessels belonging to, 1477. 
 YiekUng or striking flag to; punishment, Navy, 980 
 EXGINEER IN CHIEF: 
 Appointment, 379. 
 
 Title: chief of Bureau of Engineering, 670 671 
 ENGINEERING: 
 
 SeeBureaiis; Chiefs of bureaus. 
 Bureau of; name changed from Steam Engineering 
 1548. ^' 
 
 ENGINEERS: 
 
 Acting ensigns; appointment and promotion, 1435 
 1436. 
 
 Additional numbers in grade- 
 After promotion by selection, 1432. 
 Retirement of, 1366. 
 
 Appointment as chief of bureau, 379. 
 
 Board to report upon repairs to vessels, 776. 
 
 upon use of patented articles by naval vessels, 776. 
 
 Cadet engineers, 768-770. 
 
 Commissioned in the Navy for engineering duty only, 
 
 l<Jt70. 
 
 Corps of— 
 
 Civil engineer corps not included, 532. 
 
 Command; relative rank did not confer, 702. 
 
 General provisions relating to, 498-501. 
 
 Rank of officers in, 677. 
 
 Transfer to the line, 1263-1264. 
 Detail of Une officers for engineering duty; status- 
 promotion; command, etc., 1435. 
 
 to duty in Alaska, 1393. 
 Duties, 1401. 
 
 Eligibility for selection, 1432. 
 Fleet; appointment of , 499. 
 
 pay, 792, 801. 
 Graduated from Naval Academy, 689. 
 Naval Reserve Force, 1443. 
 Promotion, 1436. 
 
 Sea service not required for promotion by selection, 
 1434. ' 
 
 Selection boards to consist of officers not restricted to 
 shore duty only, 1430. 
 
 for promotion; form of board's report concemine 
 1433. ^' 
 
 ENGINEMAN: 
 
 Ratings established in Navy, 1494. 
 
 ENGINES: 
 
 Estimates and appropriations for fire engines. Navy, 
 
 Marine; use of patented articles connected with 776 
 Steam; estimates and appropriations for repai'rs and 
 attendance, navy yards, 1103. 
 
 ENGLISH: 
 
 Professor of. Naval Academy, 771. 
 
 E.XGRAVINGS: 
 
 Hydrographic Office; separate estimates required 1197 
 
 Plates of Wilkes's Expedition, 380. 
 
 Restrictions on, in departmental pubUcations. 1284 
 ENLISTED MEN: 
 
 See Allowances; Authorized enlisted strmgth- Death- 
 Descriptive li.st; Details; Disability; Discharge; Effects- 
 EiUistmenis; Pay of Naval Establishment; Ratings'- 
 Rations; Retired enlisted men. 
 
 Absence from duty due to misconduct; making good 
 the time lost by, 1436. 
 
 Acceptance of foreign presents, 76. 
 
 Acting warrant officers; discharge and reenlistment, 
 525. 
 
 Advertising for recruits, 1382, 1515. 
 Ages, 540. 
 
 Allotments of pay, 892, 1497, 1498. 
 
 Amusement, comfort, etc.; expenditures from shins' 
 
 stores profits, 1359. 
 Applicants are not, 1180. 
 Appointment — 
 
 As machinists in Na^-y, 1268, 1269. 
 National Guard officers, 1412. 
 warrant officers; preference to, 534. 
 
 or commissioned officers; discharge, 523. 
 To specified ratings, 1495. 
 Apprentices- 
 Additional to authorized enlisted strength 536 
 1248, 1249, 1478. ' 
 
 At na\-y yards, are not, 538. 
 Number of, 534. 
 
 Army service credited to, for retirement, 1291, 1299 
 Arrest — 
 
 By civil authorities; pay during, 950. 
 Marines exempted from, 935. 
 Artificial Umbs aUowed, 1156, 1157, 1181, 1217. 
 Assignment of wages by, 892, 1497, 1498. 
 Assumed names; discharges issued in true names 
 1379, 1380. ' 
 
 Bonds required, 476. 
 Captured by enemy; pay of, 891. 
 Citizenship; to be entered in ship's books, 995. 
 
 United States; additional pay for length of service 
 862, 867, 868. ' 
 
 Civil employment- 
 Preference after discharge, 338, 339, 780, 1065 1180 
 
 1383,1524,1526,1530. 
 Reinstatement in civil positions after discharge 
 
 1464, 1476, 1524, 1530. 
 Restricted; competition with civilians, 352 1304 
 1411, 1412, 1463, 1464. 
 in Territories, 1075. 
 Clothing bounty furnished to, 1203, 1403. 
 
 refunded on discharge, 1292, 1294, 1298, 1402 1403 
 Coast Guard serving with Navy are enUsted men of 
 
 the Navy, 539. 
 Commandant's clerk is not, 534. 
 Competition with civilians, 1411, 1412. 
 law construed, 352. 
 Navy bands, 1304. 
 Continuous service, pay, 883-891. 
 De facto, 548. 
 
 discharge of, 62, 567. 
 
 1616 
 
INDEX. 
 
 ENLISTED MEN— Continued. 
 Definition of, 526. 
 Deposit of sa\-ings; Marine Corps, 951, 1295. 
 
 Navy, 877, 1202. 
 Descriptive list, 995. 
 Detail to Dominican Republic, 1502. 
 to educational institutions, 441. 
 to Haiti, 1416. 
 to nautical school, Philippines; preference to those 
 
 havmg 20 years' service, 1297, 1298. 
 to Navy Department, 337. 
 Detention after expiration of enlistment, 542, 543, 
 555-562. 
 pay, 873, 874, 883. 
 
 under sentence of court-martial, 558, 1064. 
 Discharge; furlough in lieu of, 871, 872. 
 
 home on receiving ship pending reenlistment, 
 
 1201, 1202. 
 jurisdiction pending reenlistment; subject to regu- 
 lations, etc., 1201, 1202. 
 not troops of United States after, 1180. 
 on medical survey; transportation, 1274, 1275. 
 preference for civil employment, 338, 339, 780, 1065, 
 
 1180, 13S3, 1524, 1526, 1530. 
 prior to expiration of enUstment, 934, 935. 
 purchase of, 1222. 
 
 reenlistment in diflerent branch; travel pay al- 
 lowed, 1551, 1552. 
 refund of enhstment bounty, 1292, 1294, 1298, 1402, 
 
 1403. 
 revoked; status, 568, 975, 1008, 1009. 
 wearing of uniform after, 1414, 1415, 1524, 1552. 
 witliheld; amenability to court-martial, 975. 
 Emploj'ment; in excess of appropriations, restricted, 
 J1104. 
 when ships are docked or laid up for repairs, 1383. 
 EnUstments expired; subject to Navy laws until 
 
 discharged, 555, 556. 
 Extra duty. Marine Corps, restrictions on, 1315. 
 Faithful and obedient; preference in granting leave of 
 
 absence, 574. 
 Families; payment of death gratuity to, 1546, 1547. 
 transportation furnished on permanent change of 
 station, 1535, 1536. 
 Fidelity and obedience, testimonial of, 573. 
 Flying Corps; additional to authorized strength. 
 
 Navy, 1478. 
 Furloughed; additional to authorized strength, Navy, 
 1478. 
 burial expenses, 906. 
 hospital treatment, 903. 
 in lieu of discharge by purchase or special order, 
 
 1436. 
 not troops of United States, 1180. 
 pay, 871, 872. 
 
 on recall to active duty, 890, 891. 
 status, 537. 
 Guimery sergeants; rank and allowance of, 1271. 
 Homesteads; general provisions relating to, 1083-1087. 
 Honorable discharge gratuity, 883-891. 
 Hospital Corps, additional to authorized strength, 1478. 
 Incompetency; simimary court-martial may disrate 
 
 for, 1007. 
 Indebted to Government; discharge not delayed for, 
 
 560. 
 Insane; Saint Elizabeths Hospital in the District of 
 
 Columbia, 1161-1163. 
 Insular force, pay, 863, 864. 
 
 status, 538. 
 Marine Corps; distribution in grades, 919, 920, 921, 
 1463, 1548. 
 
 ENLISTED MEN— Continued. 
 
 Marine Corps; may be substituted for landsmen, 955. 
 service on vessels, 954. 
 
 special qualifications, details, etc., pay, 947, 948. 
 Mates rated from, 515. 
 Medals of honor and gratuities awarded to, 512, 1275, 
 
 1521-1523. 
 Medical attendance, 902-904. 
 Mess attendants and cooks, pay of, 864 
 Midshipmen appointed from, 743, 1472, 1473, 1502. 
 Minors; discharged on request of parents, 1402, 1403. 
 
 held to be, 530, 545. 
 Naturalization, 1505-1507. 
 Naval militia in active service, arc enlisted men of the 
 
 Navy, 539. 
 Navy; marines may be substituted for landsmen, 9.')5. 
 Oath taken by, 935, 1271. 
 "OfTicer" may include, 76. 
 Officer reduced to rating of, by court-martial sentence, 
 
 988. 
 Petty officers; mates held to be, 518. 
 Promoted to warrant officer, 512. 
 
 when pay commences, 830. 
 Punishments inflicted upon by commanding officer, 
 
 1002. 
 Purchase of discharge by, 1222. 
 Qualifications for certain ratings to be prescribed by 
 
 regulations, 1495. 
 Rated as mates; discharge, 523. 
 Reduction of officer to rating of, 988. 
 Reenlistment; home on receiving ship pending; sub- 
 ject to regulations, 1201, 1202. 
 Retirement, Navy and Marine Corps; computation 
 of service; pay and allowances, 967, 1269, 1270, 1299. 
 Servants; restrictions on use as, 829. 
 Service credited to naval officers, 1191. 
 
 in Naval Reserve Force credited to, 1529, 1530. 
 Shipkeepers; detailed for duty as, in Phihppines, 
 
 1297, 1298. 
 Special duty; additional pay for, 865-867. 
 Trade schools, additional to authorized strength, 1478. 
 Transfer — 
 
 From military service to Navy or Marine Corps, 
 555. 
 Naval Reserve Force or Marine Corps Reserve, 
 1529, 1530. 
 To and from Hospital Corps, 555, 567, 1420. 
 Fleet Naval Reserve, 1449. 
 Naval Reserve Flying Corps, 1454. 
 Transporation home, on expiration of enlistment, 
 555, 550. 
 on discharge; medical survey and expiration of 
 enUstment, 555, 556, 1274, 1275. 
 Vessel lost or wrecked; status of; amenable to dis- 
 cipline until discharged, 996. 
 missing; settlement of accounts, 268. 
 sunk or destroyed; pajTnent of arrears due, 264. 
 Voting in territories; restrictions on, 1075. 
 Warrant officers are not, 525. 
 Widows and orphans of, preferred for retention in civil 
 
 establishment, 1180. 
 Witnesses in court, 414. 
 
 Wives of, eUgible for Government employment, 1520. 
 Women enUsted in naval service, 1531. 
 
 included by War Risk act, 1496. 
 Wrecked or lost vessel, separated from, pay, 891. 
 ENLISTMENT: 
 
 See Fraudulent enlistment. 
 Ages, 540. 
 Aliens, 554. 
 
 1617 
 
INDEX. 
 
 ENLISTMENT— Continued. 
 Allowance, Marine Corps, 942. 
 Applicants for, not troops of United States, 1180. 
 Bounty, Marine Corps, 942. 
 Clothing outfit, 876, 877, 1203. 
 
 on second enlistment, 1403. 
 
 refund of on discharge, 1292, 1294, 1298. 
 
 value charged to minor who fraudulently enlisted, 
 1402, 1403. 
 Date- 
 To be entered in ship's books, 995. 
 
 When complete, 546, 790. 
 De facto, 548. 
 Deserters, 551. 
 Detention after expiration of, 542, 543, 555-562, 1064. 
 
 pay, 873, 874, 883. 
 Discharge prior to expiration of, 934. 
 Errors in, 548. 
 Expiration — 
 
 Court-martial prisoners, 558. 
 
 Date of, 561. 
 
 Detention in ser%ice, 542, 543, 555-562, 1064. 
 
 Effect on court-martial jurisdiction, 62, 64. 
 
 Transportation furnished, 1274, 1275. 
 Extension, 544, 561, 13S1. 
 
 by Congress, 543, 544. 
 
 detention operates as, 561. 
 
 honorable discharge gratuity and continuous 
 service pay, 8S3-891 . 
 
 Marine Corps, 544. 
 
 minority. Navy and Marine Corps, 1476. 
 
 pay. Navy, 872. 
 Form of, 555, 556. 
 Fraudulent, 996, 1000. 
 
 court-martial jurisdiction, 976, 977. 
 
 pay, 874. 
 
 punishment, 1222. 
 Indebtedness; effect of reenlistment, 245, 246. 
 Insane persons, 551. 
 Intoxicated persons, 551. 
 Marine Corps — 
 
 Navy law governs, 545. 
 
 Term of, 934. 
 Minoritj', 540. 
 
 certificate required as to age, 545. 
 
 consent of parents or guardians, 544, 545,548-551. 
 
 credited as four years' ser\ice, 1449. 
 
 discharged on request of parents, 1402, 1403. 
 
 extension of, 1476. 
 
 guardians appointed; papers prepared by register 
 ofwills, D. C, 1217. 
 
 honorable discharge; appointment as warrant 
 officers, 534. 
 
 Marine Corps, 545. 
 
 policy of Congress, 545. 
 
 underf ourteen years, prohibited, 551. 
 Place of, 875. 
 
 to be entered in ship's books, 995. 
 
 transportation of discharged enlisted men to, 1274, 
 1275. 
 Prohibited classes. 551. 
 
 penalty for officers enlisting, 994. 
 Reenlistment construed, 935. 
 Reservists reenlisting in regular Navy, 1450. 
 Shipping articles; what to contain, 556. 
 Term of, 540, 1552. 
 
 Congress may extend, 543. 
 
 constructive service credited, 1449. 
 
 discharge three months prior to expiration, 1381, 
 1382. 
 
 extension, 544, 561, 1381, 1476. 
 
 ENLI STMENT- Continued. 
 
 Term of; making good the time lost by absence due to 
 misconduct, 1436. 
 making good unauthorized absence, 987, 988. 
 marines transferred to Ilospital Corps, 555. 
 men reenlisting abroad, 556. 
 
 transferred to Navy or Marine Corp.s frciu 
 Army, 555. 
 Naval Flying Corps; regulations governins:, H4l. 
 period of detention abroad, 561. 
 under personnel act, 1269. 
 Void, 552, 976. 
 Voidable, 550, 551, 977. 
 ENROLLMENT: 
 
 Term of. Naval Reserve Force, 1444. 
 ENSIGNS: 
 
 Appointment from commissioned warrant officers, 1314. 
 from midshipmen on graduation, 765-768, 1188, 
 
 189, 1392, 
 from warrant officers, 1277, 1280, 1281, 1282. 
 Commissioned warrant officers to rank with, but after, 
 
 1267, 1314. 
 Grade of midshipman changed to, 448. 
 Junior grade abolished, 1193. 
 
 midshipmen designated as, 1190. 
 promotion to; regulations governing, 1190, 1191. 
 National; pennant of Naval Reserve Force not to be 
 
 flown in lieu of, 1448. 
 Pay, 792, 799, 1301. 
 Promotion to lieutenant (junior grade), 1264. 
 
 length of service requirement suspended, 1551. 
 Proportion of in line, 1425. 
 Rank with second lieutenants, 662, 
 Steerage officers, 704. 
 
 Transfer to Construction Corps, 1408, 1428. - 
 Watch and division officers; duty as, 704. 
 ENVELOPES: 
 
 SeePenaliy envelopes. 
 
 Contracts for; Postmaster General to make, 1239, 1240, 
 
 1291. 
 Embossing must be done at Government Printing 
 
 Office, 378. 
 Penalty — 
 
 Authority to use; endorsements on; registered mail, 
 
 1185, 11S6, 1291. 
 Fraudulent use of, 1345. 
 Official business, free of postage, 1181. 
 Self -addressed, inclosed in letters to Congress by 
 departments, 1191. 
 Printing and binding law not applicable to, 1239, 1296. 
 EPHEMERIS AND NAUTICAL ALMANAC: 
 See Nautical Almanac. 
 Exchange of data with foreign offices; use of employees, 
 
 etc., 1382, 13.'^3. 
 Printing and binding, number of copies, 1234, 1278. 
 Sale of, 1278. 
 
 disposal of proceeds, 1234, i;35. 
 EPIDEMICS: 
 
 Medical injections to prevent spread; naval personnel 
 must submit to, 458. 
 EQUIP3IENT: 
 
 See Vessels of the Navy. 
 
 Of vessels; appropriation available to care for gifts to 
 
 naval vessels, 1305, 
 Outfits; naval vessels, chargeable to "Increase of the 
 
 Navy, construction and macliiiiery, " 1408, 
 Unlawfully seUing, stealing, etc., 990, 
 EQUITABLE CLAIMS: 
 
 Accounting officers' jurisdiction, 235. 
 Accounts, enUsted men on missing vessels; settlement 
 of, 268. 
 
 1618 
 
INDEX. 
 
 EQUITY: 
 
 See Injunction. 
 ERRORS: 
 
 See Examinations. 
 
 Commission of oflBcer; effect, 103, 675, 685. 
 
 jurisdiction of courts to correct, 834, 835. 
 Court-martial proceedings; irregularities and fatal de- 
 fects distinguished, 1045-1047. 
 Enlistments, 548. 
 
 Examining board; courts have no jurisdiction to cor- 
 rect, 728. 
 fataUy defective, 616, 723, 728. 
 President's action on retiring board, 9C8, 9C9. 
 Procedure of courts; due process of law requirement, 
 125. 
 eourts-martial; jurisdiction of civil courts, 401, 402, 
 Retirement, 601, 602, 911, 912. 
 correction of, 641, 642. 
 iUegal, 587, 621. 
 Statute invalidated by, 287. 
 ESCAPE: 
 
 Naval prisoners; punislmient of master at arms per- 
 mitting, 985. 
 Prisoners; military guard charged with manslaughter, 
 403. 
 ESPIONAGE: 
 
 Obtaining information, secret books, etc., concerning 
 
 national defense, 1482-1485. 
 Text of act, 1482-1490. 
 ESSENTIAL: 
 
 Definition of, 557. 
 ESTIMATES: 
 
 Additional; 1290, 1469. 
 
 Annual; explanation of variations and new items, 
 
 1102. 
 Book of estimates to be prepared by Secretary of the 
 
 Treasury, 1103. 
 Claims; statutory authority required for submission of, 
 
 235. 
 Collision claims, naval vessels; submission to Congress, 
 
 1358, 1359. 
 Deficiencies; necessity for to be reported to Congress, 
 
 1104, 1105. 
 Demands on balances of appropriations; Secretary of 
 
 the Navy to submit, 381. 
 Explanation of, 1102, 1179. 
 additional estimates, 1290. 
 general or lump-sum appropriation , 1385, 1386. 
 transfer of salaries between bureaus, 1290. 
 Explanatory notes; restrictions on, 1386. 
 Fiscal year defined, 257. 
 
 Form of, 1101, 1102, 1290, 1315, 138.5, 1391, 1392, 1469. 
 General provisions relating to, 385-387, 1101-1103. 
 Hydrographic Office, printing and engraving, 1197. 
 Limited to needs of year for which made, 387. 
 Lump-sum — 
 
 Appropriations, employees to be paid from; spe- 
 cific authority required, 1307. 
 information accompanying, 1417. 
 notes in book of estimates, 13S5, 1380. 
 Employees, navy yards and stations, 1312, 1313. 
 Manner of submitting to Congress, 1103, 1193, U94. 
 Naval appropriations, to be used for civil establish- 
 ment, 1194. 
 pension fund; claims on, 1103. 
 Navy Department — 
 
 Chiefs of bureaus to furnish, 385. 
 Form of, 1102, 1103. 
 
 Items of expenditure required to be included in, 
 1102, 1103. 
 Navy; value of stores on hand in navy yards, 381. 
 
 ESTIMATES— Continued. 
 
 New items and variations in annual, to be exfilaincd, 
 
 1102. 
 Official designated for preparation of, in each depart- 
 ment, 1391, 1392. 
 Pay of the Navy, form of, 1312. 
 Per diem allowance in lieu of subsistence; travel of 
 
 civil employees, 1398, 1399. 
 Printing and — 
 Binding, 1101. 
 annual, 1296. 
 
 submission to Congress, 1232, 1248. 
 to accompany reports and documents sub- 
 mitted to Congress, 1230. 
 Engraving, Hydrographic Office, 1197. 
 PubUc works, form of, 1102. 
 Reduction of, to meet revenues, 1315. 
 Repairs and changes in naval vessels; appropriation 
 
 required for, 1299. 
 Reports accompanjring — 
 
 Buildings owned in District of Columbia, 1553. 
 rented, 1191. 
 
 in District of Columbia, 1218. 
 CiviUans employed under Increase of the Navy, 
 
 etc., 1272. 
 Expenditures in previous year, 1102. 
 Extracts from annual reports, 1179. 
 Inefficient employees, 1204. 
 Lump-sum employees, 1312, 1313, 141S, 1419. 
 Outstanding appropriations, 1102. 
 Persons employed during previous year, 1386. 
 Proceeds of sales, pubUc property, 1103, 1104. 
 Reason for waiving apportionment of appropria- 
 tions, 1104, 1105. 
 Sales of old material, etc., 1360. 
 Revised Statutes and Statutes at Large to be cited in, 
 
 1101. 
 .Salaries; form of, 1101, 1102. 
 Special or additional; form of, 1469. 
 Specific, general, and contingent expenses, Navy De- 
 partment, 385. 
 Time for submission of, 1179, 1274, isa'j. 
 Treaties to be cited in, 1101. 
 Variations in, annual, to be explained, 1102. 
 Vehicles; passenger carrying; to be submitted in de- 
 tail, 1398. 
 ESTOPPEL: 
 
 See A caused; Waivers. 
 ETHICS: 
 
 Professor of, Naval Academy, 771. 
 EVIDENCE: 
 
 See Confession; Documentary evidence; Self -criminatiun. 
 Accoimts; jurisdiction of accounting ofiicers to require; 
 
 244. 
 Accused absent; can not be received, 1030. 
 Admissibihty of; court-martial decides, 1024, 1025. 
 Admission as to what absent witness would testify, 1 32, 
 
 1055. 
 After plea of guilty before court-martial, 1024. 
 Character, 1024. 
 
 right of accused to obtain witnesses, 133. 
 Compelling accused to exhilnt his person, 12:^. 
 Conspiracy cases, 992, 993. 
 Copies of consular records, 429. 
 court-martial records, 1036. 
 
 department records, 424, 426, 427, 428, 1009, 1010, 
 1023. 
 Court of Claims; how obtained, 1364, 1365. 
 Courts-martial, 1021-1025. 
 
 all evidence should be recorded by, 1019, lOM. 
 
 1619 
 
INDEX. 
 
 KVIDEN'CE-Continucd. 
 
 C'oiirl.s-nmrtial; inadmissible whilecourt is cleared, 1030' 
 
 general rules governing, 1024. 
 Courts of in<iuiry; proeeedings admissible before 
 courts-martial, 131, 132, 10.56, 1057. 
 to record, 1056. 
 Cumulative, accused not entitled to process for obtain- 
 ing, 132. 
 Depositions, admissibility in naval courts, 131, 1023, 
 1311, 1312. 
 in State courts, 125. 
 Dying declarations, admissiV>ility of, 132. 
 Embezzlement; records, etc., 1330, 1331. 
 
 transcript from Treasury records, 428. 
 Examining boards; court-martial proceedings con- 
 sidered by, 718, 719. 
 records of department, etc., considered by, 722, 723. 
 statements submitted to, under oath, 723. 
 Extracts from journals of Congress, 428. 
 General provisions relating to, 421-430. 
 Handwriting, 1024, 1389. 
 Line of duty cases, 611-612. 
 Moral unfitness for promotion, 627-628. 
 Newly discovered; reopening of promotion proceed- 
 ings, 616. 
 Oral, before simimary courts-martial, 1006. 
 Papers unlawfully seized, 123. 
 
 Proceedings before congressional committees, restric- 
 tion on use in criminal cases, 421. 
 State laws and records, 429, 430. 
 Summary courts-martial, to be given orally, 132, 1008. 
 Territorial records and laws, 429, 430. 
 Title to lands purchased by United States; expense of 
 
 obtaining, 283. 
 Transcript of Treasury Department records, 427. 
 EXAMINATIONS: 
 
 See Appointments; ExaminiJig boards; Promotion; Wit- 
 nesses. 
 Acting ensigns for promotion to lieutenant (junior 
 
 grade), 1436. 
 Advancement in rank of staff officers, 1473, 1481, 1482. 
 Applicants for reserved list, 1392, 1393. 
 Appointment — 
 
 Acting chaplains, 1396. 
 
 ensigns for engineering duty, 1435. 
 Assistant paymasters, 470. 
 
 surgeons, 462. 
 Ensigns from warrant officers, 1277. 
 Machinists, 1268, 1269. 
 Marine Corps, 1270, 1461. 
 Midsliipmen, 748. 
 Nurses, female. Navy, 1303, 1304. 
 Pay clerks. Navy, 1407. 
 Pharmacists, 1420. 
 Aviation officers, for promotion, 1439. 
 Civil employees, 202, 780. 
 Competitive — 
 
 Appointments depending on result, 94. 
 Assistant surgeons; held illegal, 465, 466. 
 Candidates for machinist, 1268, 1269. 
 Enlisted men for appointment as midshipmen, 
 
 1472, 1473. 
 Marine Corps; to determine precedence of officers, 
 
 1462. 
 Not authorized for promotion, 685. 
 Warrant officers appointed as ensigns, 1277. 
 Coastitutionality of statutes requiring, 709. 
 Dental officers, for increased pay and allowances, 1421 
 Engineer officers, promotion, 1435. 
 Ensigns for promotion to lieutenant (junior grade), 
 1190. 
 
 EXAMINATIONS— Continued. 
 Failure- 
 Discharge; due process of law, 124. 
 
 Former warrant and commissioned warrant 
 officers, 1550, 1551. 
 MoraUy, Navy, 597, 623, 630, 1189. 
 Physically, Marine Corps; retired rank, 965. 
 Navy; retired rank, 1366. 
 
 selected officer retired with actual rank, 
 1433. 
 Professionally, Marine Corps; loss of numbers, 
 1463. 
 Navy; suspended from promotion, 729-734. 
 selected officer thereafter ineligible for pro- 
 motion, 1433. 
 Reexamination, Marine Corps, discharge, 1463. 
 
 Na\'y; dropped from service, 729-734. 
 Retirement of officer, Navy, not recommended for 
 promotion, 594, 911. 
 Irregularities; courts without jurisdiction, 596. 
 Machinists for promotion to chief machinist, 1314. 
 Maruie Corps promotions, 707-709, 924-927, 965, 1270, 
 
 1463. 
 Medical Corps; promotions, 1251. 
 Midshipmen; deficiency; status, 751-755. 
 
 final graduating examination defined, 687. 
 Naval Reserve Force; appointment, 1445, 1451. 
 eonflrmation, 1444, 1445. 
 promotion, 1445. 
 provisional rank, 1444. 
 Oral or written, discretionary, 514. 
 Pay clerks and acting pay clerks, for promotion, 1407. 
 Pharmacists for promotion to chief pharmacist, 1420. 
 Physical, Marine Corps, 707, 70**, 1463. 
 President to prescribe for Marine Corps appointments, 
 
 1270. 
 Promotion- 
 Delayed; commencement of pay; rank antedated, 
 832-838. 
 new physical not required, 709. 
 Fatally defective, 616. 
 
 Navy; facts once determined not reopened, 1183. 
 mental, moral, and professional, 711-721. 
 physical, 707-710. 
 retirement of officer not recommended by both 
 
 boards, 594. 
 selected officers required to take, 1433. 
 Not a trial, 629. 
 
 Not sufficient for retirement, 601. 
 Oral or written; discretionary, 514. 
 Pay of officer undergoing, 709. 
 Physical disability due to woimds in line of duty, 
 
 709. 
 Reopening of proceedings; new evidence, 616. 
 Seniority, 684, 685. 
 Special for enlisted men rewarded for heroism, 
 
 614. 
 Staff officers; required only for advancement in 
 
 rank, 1481, 1482. 
 Subject to, effect of, 834. 
 Time of holding, 710, 711, 734, 834, 924. 
 Revocation of President's action, 596, 630, 728, 734. 
 Stafi officers for advancement, 708, 1473, 1481, 1482. 
 
 required for advancement in rank only, 1481, 1482. 
 Supervisory boards; examinations for promotion, 724. 
 Supply Corps; promotions, 471. 
 Temporary promotion: general law not applicable, 721. 
 Warrant officers for promotion to commissioned war- 
 rant officers, 1267. 
 to ensign, 1277. 
 
 1620 
 
INDEX. 
 
 EXAj>UN1NG BOARDS: 
 
 Acting chaplains for appointment as chaplain, 1396. 
 Assistant paymasters, for appointment, 470. 
 Approval of, by Secretary of the Navy, 1481, 1482. 
 by President, 724-728, 1189. 
 professional failure, Marine officer, 1463. 
 Burden of proof, 720, 721. 
 Candidate — 
 
 For promotion, right to be present, 723. 
 
 right to submit statement under oath, 723. 
 Not to be rejected without public examination, 728. 
 Waiver of right to appear before, 723, 728. 
 Civil courts; no jurisdiction over, 728. 
 Counsel for, detailed by Judge Advocate General, 723. 
 Discharge of oflTicers found not qualified by, 124, 623, 
 
 630, 729-734, 1189, 1463. 
 Evidence before; records of department, etc., 722, 723. 
 Fatally defective, 616. 
 Foreign stations, convening of, 1472. 
 Form of report by, 728, 729. 
 
 Judge Advocate General's duties relating to, 1186. 
 Machinists for promotion to chief machinist, 1314. 
 Marine Corps — 
 
 Promotion, 924-927. 
 
 how constituted, 1219. 
 
 loss of numbers, officer found not qualified by, 
 1463. 
 To determine precedence of officers, 1462. 
 Naval Reserve Force; appointment and promotion; 
 
 how constituted, 1445. 
 Pay clerks. Navy; for appointment of, 1407. 
 Proceedings not a trial, 629. 
 Promotion — 
 Navy, 711. 
 
 candidate's right to appear before board, 723, 
 
 728. 
 consideration of court-martial proceedings, 
 
 718, 719. 
 duty of, to weigh evidence, 720. 
 how constituted, 722. 
 majority governs, 721. 
 powers of, 722. 
 record to be kept, 724. 
 
 selection by board of naval officers, 1430-1433. 
 Secretary of the Navy empowered to take action 
 
 on proceedings of, 1481, 1482. 
 Supervisory, 724. 
 Questions of law before, 712. 
 Record— 
 
 Of officer considered by, 722, 723. 
 President's action on finding, 724-728. 
 Secretary of the Navy may act for President, 1481, 
 1482. 
 Reopening of proceedings; new evidence, 616. 
 Repairs to vessels; reports concerning, 776, 777. 
 Revocation of President's action, 596, 630, 728, 734. 
 Secretary of Navy to convene for examination of ap- 
 plicants for reserve list, 1392, 1393. 
 Statements under oath submitted to, 723. 
 Suspension of officer found not qualified by, 729-734, 
 
 1433. 
 Warrant officers for promotion to commissioned war- 
 rant officers, 1267. 
 Witnesses before; testimony recorded, 724. 
 EXAaiPLE: 
 
 Commanding officer's duty as to, 978, 979. 
 EXCESSIVE: 
 
 Definition; bids for naval supplies, 1114. 
 Sentence, not void, 403. 
 
 EXCHANGE: . 
 
 See Embezzlement; Public property. 
 
 Appreciation in value of foreign coin, credited to Pay, 
 
 Miscellaneous, 1222. 
 Public moneys, contrary to law, 1098, 1100, 13.30. 
 
 postal employees, 1344. 
 Quarters; agreement relating to, unauthorized, 702. 
 Stations; officers not entitled to mileage when per- 
 mitted to make, 844. 
 EXCLUSIVE JURISDICTION: 
 
 Lands purchased by United States, 282-284. 
 
 Power of Congress over United States buildings, etc., 
 
 72. 
 United States; crimes committed within, 1348-1351, 
 1353, 1354. 
 laws of States applicable in Federal reservations, 
 1351. 
 EXECUTIVE: 
 See A id. 
 
 Government not liable for illegal acts of, 79. 
 Power — 
 
 To establish regulations, 59, 82, 195, 784, 787. 
 Vested in President, 77. 
 Subordinate officers act for President, 78. 
 EXECUTIVE DEPARTMENTS: 
 
 See Appropriations; Attorney; Buildimgs; Civil estab- 
 lishment; Claims; Contracts; Delegation of poivers; 
 Details; Estimates; Heads of departments; Navy De- 
 partment; Pay of civil establishmerU; Printing and 
 binding; Public property; Records; Regulations; Re- 
 ports. 
 Accounting officers' action conclusive upon, 246-248. 
 Accumulated documents; disposal of, 1234. 
 Attorneys; notaries public appearing before, 1295. 
 
 public officers or employees appearing before, 1333. 
 "Branch " not synonymous with "department, " 192. 
 Buildings — 
 
 In District of Columbia; distribution of office 
 
 space, 1524, 1525. 
 Not to be draped in mourning, 1220. 
 Owned by Government; reports to Congress con- 
 cerning, 1553. 
 Rented; authority to rent others instead of those 
 occupied, 1187. 
 District of Columbia; specific appropriation 
 
 required, 1181, 1182. 
 report to Congress, 1191, 1218, 1391, 1543. 
 Business; delays in performing, 344. 
 distribution of, 193, 209. 
 monthly reports as to condition; extension of 
 
 hours when in arrears, 1221. 
 quarterly reports to President, 1221. 
 Chief clerks, duties of, 209. 
 
 to administer oaths of office, 1215. 
 Claims; Attorney General may require information in 
 
 suits, 220. 
 Closing — 
 
 Of, for deceased ex-official, forbidden, 1220. 
 Onhohdays, 201. 
 Constitutional authority for, 78, 83. 
 Contingent funds not expended without written order 
 
 of head of department, 1105, 1106. 
 Contracts for stationery, etc., 1117, 1358. 
 Courts' jurisdiction over business of, 345-348. 
 Custody of property and records, 193, 194. 
 Data furnished for Official Register of the United 
 
 States, 1235, 1236. 
 Deficiencies not to be incurred by, 1104, 1105, 1116, 
 
 1238, 1288. 
 Definition, 191, 225, 331. 
 
 1621 
 
INDEX. 
 
 EXECUTIVE DEPARTMENTS— Continued. 
 
 Definition of executive and judicial departments, 192. 
 Details to, from outside District of Columbia; restric- 
 tions on, 1188, 1290, 1291, 1384. 
 Distribution of documents and other publications by , 
 
 1239. 
 Fuel for use of, 1507, 1553. 
 Ooneral provisions applicable to, 189-228. 
 
 provisions applicable to public olTioers, 10G5-1073. 
 Holidays, 201, 781, 782, 1194, 1198, 1220, 1221, 1224, 1263. 
 Hours of business, 201, 1220, 1221. 
 Investigations, administration of oaths, 217. 
 Libraries to receive public documents, etc., 1240. 
 Names and history of, 189. 
 Officers of Navy not part of unless holding statutory 
 
 positions, 213, 215. 
 Offices not at seat of government, 191 . 
 PoUtical contributions, 783, 1180, 1181, 1334, 1335. 
 Records — 
 
 Copies of for use in court, 426, 427. 
 
 Students and others afforded facilities for study 
 
 and research, 1275. 
 Transferred to Na\-y Department, 1389. 
 Regulations, authority to make, 193. 
 Seal of— 
 
 Affixed to commissions of officers, 1248. 
 Counterfeiting, etc., 1489. 
 Services performed or supplies obtained for another 
 bureau or department; appropriations transferred 
 579, 1409, 1536. 
 Stationery, etc., 1117, 1358. 
 
 Students, scientific investigators, etc., afforded facili- 
 ties of, 1275. 
 Suspension of officer in, does not create vacancy, 215. 
 Useless papers in buildings controlled by; disposal of, 
 
 1248. 
 VoUmtary services not to be accepted, 1104. 
 Witness, attendance secured in cases of pending claims, 
 219. 
 EXECUTIVE ORDERS: 
 
 Compilation of, fixing pay and allowances of enlisted 
 
 men, Na\'y, 850-863. 
 HoUdays estabUshed by, 1220, 1221. 
 EXPATRIATION: 
 
 Residence abroad, 140, 572. 
 EXPENDITURES: 
 
 See Appropriations; Accounts; Disbursing officers. 
 EXPENSES: 
 
 See Actual expenses; Travel; Witnesses. 
 EXPERTS : 
 
 -Accounting officers' jurisdiction as to payment of wit- 
 nesses, 241. 
 Civilian; restrictions on employment from naval ap- 
 propriations, 1281. 
 Employment of efficiency; restrictions on, 1394. 
 Testimony of, 611. 
 Witnesses, 412, 1025, 10.56. 
 EXPLOSIVES: 
 
 Inspection of by States, 49. 
 
 Mailing of, punishment, 1342, 1343. 
 
 Manufacture and possession in time of war restricted, 
 
 1492. 
 Transportation of, 1345, 1346. 
 on navigable waters, 1519. 
 EX POST FACTO: 
 
 Deflnition of, 74. 
 EXTENSION: 
 
 See Enlistment; Pay of Naval Establishment. 
 Enlistments, 1381, 1476. 
 
 honorable discharge gratuity and continuous 
 service pay, 883-891. 
 
 EXTENUATING CIRCUMSTANCES: 
 
 Clemency recommended by members of naval court- 
 martial, 10:54. 
 Officer sued for illegal act, 56. 
 EXTORTION: 
 
 By informer, 1336. 
 officials, 1329. 
 EXTRADITION: 
 
 Fees of witnesses, 416. 
 
 Foreign; naval forces employed for protection of ac- 
 cused, 1167. 
 Persons in tiaxy, 107. 
 EXTRA DUTY: 
 
 Commanding officer may impose as punishment, 1002. 
 Pay, Marine Corps; restrictions on, 1315. 
 Summary court-martial may adjudge extra police 
 duties, 1007. 
 EXTRAORDINARY HEROISM: 
 
 Advancement of marine officers for, 921, 933. 
 
 of naval officers for, 453, 454, 734-736. 
 Enlisted men rewarded for, 512, 1275, 1521-1523. 
 Medals and Navy crosses in reward for, 512, 1275, 
 
 1402, 1521-1523. 
 Officers advanced for, to be additional numbers in 
 
 grade, 1289. 
 Retainer pay. Naval Reserve Force, increased because 
 
 of, 1450. 
 Thanks of Congress; advancement in grade, 736. 
 FACSIMILE: 
 
 Signature of public officer, 351. 
 FACTS: 
 
 Mistake of; reopening of accounts for, 248-249. 
 FALSE: 
 
 .Vccoimts; naval personnel; insurrection, 1170. 
 records, reports, etc., punishment for, 136S. 
 .Vcknowledgments by officer authorized to administer 
 
 oaths, etc., 1323. 
 Certificates; punishment for, Navy, 990. 
 
 or writings; punishment for offenses not otherwise 
 specified, 1332. 
 Claims against United States, 990. 
 Impersonation of officer or employee, 1323. 
 Muster; making or signing, or aiding, abetting, direct- 
 ing or procuring, 985. 
 Receipts; punishment for giving or receiving, 990, 1324. 
 Records, etc., 1336, 1368. 
 Report by mess treasvu-er; not fraud against United 
 
 States, 902. 
 Returns; naval personnel; insurrection, 1170. 
 Statements; claims against United States; punish- 
 ment. Navy, 990. 
 FALSEHOOD: 
 
 Punishable by naval court-martial, 984. 
 FALSE IMPRISONMENT: 
 
 See A rrcst. 
 FAMILIES: 
 Officers— 
 
 And enlisted men: transportation furnished, 1535, 
 1536. 
 and nurses; pasonent of death gratuity to, 1547. 
 FEBRUARY: 
 
 Compensation during month of; how computed, 1297. 
 FEES: 
 
 See Witnesses. 
 FELONIES: 
 
 At sea, power of Congress, 38. 
 Definition of, 1355. 
 FEMININE: 
 
 Masculine includes, in construing Federal statutes, 
 185, 1355. 
 
 1622 
 
INDEX. 
 
 FIDELITY: 
 
 Honorable discharge, testimonial of, 573. 
 Leave of absence reward for, 574. 
 nGHTS: 
 
 Films and pictures of prize fights, 1371, 1372. 
 FILES: 
 
 Useless, at navy yards and stations, 1301. 
 
 in buildings under control of departments, 1248. 
 in executive departments, 1202, 120:3. 
 on board naval vessels, 1381. 
 FILING DE\aCES: 
 
 Public Printer to furnish to departments, 1278. 
 FILMS: 
 
 Prize fights, 1371, 1372. 
 FINE ARTS: 
 
 Coramission created; duties, etc., 15.59, 1560. 
 FINES: 
 
 Courts-martial authorized to adjudge, 990. 
 Imprisonment imtil payment of; court-martial sen- 
 tence, 1063, 1064. 
 Naval courts-martial: use of for expenses of prisoners, 
 1313. 
 hospital fund to be credited with, 1159. 
 FIRE ENGINES: 
 
 Estimates and appropriations for. Navy, lia3. 
 FIREMEN: 
 
 Enlisted men serving as; additional pay for, 878. 
 Rating of coal passer changed to, 1423. 
 FIRST LIEUTENANTS: 
 
 Army: lieutenants (junior grade) rank with, 662. 
 Marine Corps; number of, 1458. 
 Na^•y; detail of officers to duty as, 577. 
 FISC.\L AGENTS: 
 
 London; account of Navy Department with, 1222 
 FISCAL YEAR: 
 
 Accounts to be settled within, 259. 
 
 Apportionment of appropriations to avoid deficiencies 
 
 during, 1104, 1105. 
 Commencement of, 257. 
 Estimates for, 1102. 
 
 Expenditures from appropriations after, 1107. 
 FISH COMMISSION: 
 
 To be aided by heads of departments, 1133. 
 Vessels of; relation to Navy Department, 1186. 
 FLAG OFFICERS: 
 
 Definition of, 513, 514, 576, 577. 
 
 Medals of ionor to enlisted men on approval of, 512. 
 
 President may delegate power to award Navy crosses, 
 
 1522. 
 Rank of; commanding officers of squadrons, 576, 660. 
 FLAGS: 
 
 Enemies'; collection of, 381, 790. 
 
 Estimates and appropriations for, Navy, 110:5. 
 
 Issued free of cost ; used for draping coffins of officers 
 
 or enlisted men, i:397. 
 National ensign; pennant of Naval Reserve Force not 
 
 to be flown in lieu of, 1448. 
 Pennant for merchant vessels commanded by members 
 
 of Naval Reserve Force, 1448. 
 Striking or attempting to strike, to enemy or rebel; 
 punishment for. Navy, 980. 
 FLAGSHIP: 
 
 Surgeon of the fleet shall be surgeon of, 466. 
 FLEET: 
 
 Chief of Naval Operation charged with operations 
 
 of, 1401. 
 Engineer; appointment of, 499. 
 
 assignment of line officers to duty as, 1435. 
 pay, 792, 801. 
 Medical stores; procurement of, 466. 
 
 FLEET— Continued. 
 
 Naval reserve; general provisions relating to, 1448-1451. 
 Officers of, to have rank of admiral and vice admiral, 
 
 1481. 
 Paymaster; appointment of, 474. 
 
 pay, 792, 801. 
 
 Surgeon; appointment of, 466. 
 
 duties of, 466. 
 
 pay, 792, 801. 
 
 FLEET CORPORATION: 
 
 See Shipping Board. 
 FLOGGING: 
 
 Prohibited in the Navy, 1034. 
 FLORIDA: 
 
 Timber lands in, protection of, 1088. 
 FLOTILLAS: 
 
 Commanding officer of may convene general court- 
 martial, 1442. 
 FLOUR: 
 
 Purchase of for Navy, 1115. 
 FLYING CORPS: 
 
 Additional to authorized strength. Navy, 1478. 
 Allowances not increased for aviation duty, 1513. 
 General provisions relating to, 1437-1441. 
 Naval Reserve Force, 1454. 
 FODDER: 
 
 Transportation for Navy, American vessels, 1283. 
 FOOTNOTE: 
 
 Effect of as regulation, 1064. 
 FORAGE: 
 
 Army, furnished naval officers cooperating with, 433. 
 Marine Corps; conxmutation not paid, 1194. 
 Naval officers not allowed, 1267. 
 Purchase of in excess of appropriations, 1116, 1288. 
 FOREIGN: 
 
 Almanac offices; exchange of data with, 1382, 1383. 
 Coin; appreciation in value of, credited to Pay, Mis- 
 cellaneous, 1222. 
 Courts; depositions for use in, 424. 
 Hydrographic surveys, 1106, 1237. 
 Law; Attorney General will not render opinion con- 
 cerning, 299. 
 Relations; neutrality; espionage, etc., 1482-1490. 
 
 political questions; jurisdiction of courts, 104. 
 Squadrons; stores furnished to, 579. 
 SuppUes — 
 
 Purchase of for Navy in emergencies, 1396. 
 Purchase of hemp for Navy, 1115. 
 United States articles preferred for Navy, prices, 
 etc., considered, 1115. 
 Vessels; transportation of Navy coal in, 1408. 
 FOREIGN COUNTRY: 
 See Neutrality. 
 Appropriation for obtaining information from abroad; 
 
 accounting for expenditures, 1417. 
 Bad-conduct discharge not to be executed in, 100(i. 
 Claims for damages caused by American forces to pri- 
 vate property in, 1504, 1508. 
 Contracts made to be executed in, 1114. 
 Correspondence with, criminal, 1317. 
 
 not to be sold or destroyed with useless papers, 
 1381. 
 Coimsel for naval officer in, 223, 224, 321. 
 Court-martial convened in, 65. 
 Death of officer in; funeral expenses, 905, 906. 
 Decorations, etc., of United States may be conferred on 
 military forces of, 1517. 
 presented to American officers, 75, 1187, 1516. 
 unauthorized wearing of; punishment, 1515, 1516. 
 wearing of, by American officers, 1187, 1516. 
 Defined to include high seas, 905. 
 
 1623 
 
INDEX. 
 
 FOREIGN COUNTRY— Continued. 
 
 Detail of naval personnel to, 576, 1399. 1410, 1.502, 15,50. 
 Enforcement of United State."! laws in, 69, 70. 
 Extradition from; use of naval forces to protect ac- 
 cused, 1167. 
 Jurisdiction over United States vessels, 67. 
 Lauds acquired in, by United States, 286. 
 Laws of, violated by naval oflTicer, 121. 
 Naval Academy students admitted from, 743, 1294. 
 GflBce in — ' 
 
 Acceptance by naval personnel, Brazil, 1399. 
 Dominican Republic, 1502. 
 Haiti, 1416. 
 
 South American Republics, 1556. 
 Acceptance by United States officers, 75. 
 Postal arrangements with, 329. 
 Retired officers residing in, 572. 
 
 Sale of war supplies, lands, buildings, etc., to Govern- 
 ment of, 1516. 
 Uniforms of, punishment for unlawfully wearing, 1515, 
 1516. 
 FOREIGN PORT: 
 
 Abandoning mariner in, 1352. 
 Discharge of enlisted men in, 555, 556, 1006. 
 Naval officer empowered to act as consul in, 575. 
 Naval vessels in; bills of health and quarantine ex- 
 penses, 1103. 
 Witnesses transported from, to United States, 420, 
 576. 
 FOREIGN SHORE DUTY: 
 
 Advances to naval officers ordered to and from, 838, 
 
 1472. 
 Brazil, 1399. 
 
 Dominican Republic, 1502. 
 Haiti, 1416. 
 Pay of — 
 
 Marine Corps, 941, 948, 1275. 
 Naval officers, 818-821, 1275, 1302. 
 under personnel act, 1267. 
 South American Republics, 1556. 
 Warrant officers, Marine Corps; pay, 1474. 
 Navy; pay, 1529. 
 FOREIGN STATION: 
 
 Acting paymasters, pay of, 839. 
 
 Advances of pay to persons in naval establishment, 
 
 838, 1472. 
 Appointment of disbursing officer abroad, 788. 
 Civilian storekeepers appointed for, 533. 
 Convening of examining and retiring boards, 1472. 
 Definition, 1472. 
 Deprivation of shore liberty on, by summary court 
 
 martial, 1006. 
 Government transport to be used for transportation of 
 
 families to and from, 1536. 
 Pay of storekeepers on, 846, 847. 
 Pro\'isions and stores, Navy; estimates and appro- 
 priations for, 1103. 
 Purchase of supplies; consular certificate required as 
 to prevailing prices, 1114. 
 without advertising, 1113. 
 Storekeepers, naval officers detailed for duty as, 579. 
 FORESTS: 
 
 Use of earth, stone and timber by Na\'y, 1409. 
 FORFEITURE: 
 
 Absence without leave; pay of persons in service of 
 
 United States, 1297. 
 Citizenship; desertion law not bill of attainder, 7.3-74. 
 power of Congress to provide, 140. 
 rights by desertion in time of war, 1077, 1078. 
 Contractors; double contract price for nonperformance, 
 nil. 
 liquidated damages, 1113. 
 
 FORFEITURE-Continued. 
 
 Deposit accompanying proposal for purchase of naval 
 
 vessel, 1192. 
 Desertion; amount credited to naval hospital fund, 
 
 1273. 
 Imposed by naval courts-martial; used for expenses 
 
 of prisoners, 1313. 
 Pay- 
 Absence due to misconduct, 825, 1436. 
 Deck courts may adjudge, 1308. 
 Enlisted men. Marine Corps, 950. 
 
 Navy, 869-871. 
 Naval officers; sentence of court-martial required, 
 820.1436. 
 Retainer pay, Naval Reserve Force, 14.50, 1451, 1546, 
 1.5.52. 
 
 FORGERY: 
 
 Bonds, public records, or other writings, 1322. 
 Deeds, powers of attorney, receipts or other writings, 
 
 1322, 1323. 
 Discharge certificates, naval ser\ice, 569, 1473. 
 Having forged papers in possession, 1323. 
 Money orders or signatures thereon, 1343, 1344. 
 Seal of executive department or naval pass or permit, 
 
 1489. 
 Signatures in coimection with claims against United 
 States; punishment. Navy, 990. 
 FORMER JEOPARDY: 
 
 See Jeopardy. 
 FORMS: 
 Accounts — 
 
 Navy Department expenditures, 1102, 1103. 
 Of public moneys, 1097. 
 
 Prescribed by Comptroller of the Treasury, 1224. 
 Advertisement, sale of naval vessels, 1192. 
 Affidavit to contract returns, 1119. 
 Annual reports, 1239. 
 
 Application for writ of habeas corpus, 404. 
 Appropriation bills, 1290. 
 Bonds, 481-484. 
 
 Bonds: departure from statutory requirements, 483, 
 484. 
 special disbursing agents, 1095. 
 Certificate of indebtedness against officer losing public 
 
 property, 1223. 
 Charges and specifications, 1027. 
 Claims for compensation, civil employees injured in 
 service, 1468. 
 lost or damaged property, naval persoimel, 1493. 
 Commissions of officers, 217, 1248. 
 Contracts— 
 
 Eight-hoiU" provision, 1370, 1371. 
 
 Navy: shall provide a lien in favor of Government, 
 
 1369. 
 Printed blanks to be furnished officers making, 
 
 1119. 
 Returns for filing in returns office, 1119. 
 Shall require delivery of specified quantity, 1114. 
 Stipulation that Members of Congress have no 
 
 interest, 1118. 
 Writing required: signatures, 1118, 1119. 
 Court-martial sentence; certainty required, 1064. 
 Deck-court records, what to contain, 1309. 
 Enlistment, 555, 556. 
 
 Estimates of Navy Department, 1102, 1103. 
 pay of the N&vy, 1312. 
 special or additional, 1469. 
 
 submitted to Congress. 1101, 1102, 1290, 1315, 1385, 
 1391, 1.392. 
 Examining board's report, candidate recommended 
 for promotion, 728, 729. 
 
 1624 
 
INDEX. 
 
 FORMS— Continued. 
 
 Guarantee required to accompany proposals for naval 
 contracts, 1112, 1113. 
 
 Honorable discharge, Navy, 569. 
 
 Money requisitions on Treasury, 1104. 
 
 Oath of office, 328, 748, 1065, 1066; 
 
 Orders assigning officer to duty as flag officer, 577. 
 to shore duty, naval officers; recitals in, 1191, 1218, 
 1219. 
 
 Power of attorney; prosecution of claims against 
 United States, 1093. 
 
 Public Printer to furnish to departments, 1278. 
 
 Requisition for printing and binding, 1239. 
 
 printing; signed by chief of the department, 1238. 
 
 Resolutions, 187. 
 
 Return to writ of habeas corpus, 405, 406. 
 
 Reviewing authority's action in court-martial cases, 
 1040-1042, 1052. 
 
 Selection board's report, 1433. 
 
 Senate's confirmation of nomination, 735. 
 
 Statutes, 187. 
 
 Subpoenas, 425. 
 
 Summary court-martial proceedings, 1009, 1311. 
 FORNICATION: 
 
 Punishment for, 1354. 
 FORTIFICATIONS: 
 
 Injuries to, 1327. 
 FORWARD WARRANT OFFICERS: 
 
 See Vt'anant officers. 
 
 Promotion of enlisted men to, 512. 
 FRACTIONS: 
 
 Computation of officers in any corps, grade or rank, 
 1428, 1429. 
 in Marine Corps, 1458, 1459. 
 FRANKS: 
 
 See Penalty envelopes. 
 FRAUD: 
 
 Against United States, 990, 991. 
 
 Claims against United States, 990, 1324. 
 for wages, etc., 1323. 
 
 Contracts; duty of head of department, 352. 
 
 Discharge obtained by; revocation of, .568. 
 
 False reports by mess treasurer, not fraud against 
 United States, 902. 
 
 Invalidating appointment to office, 96. 
 
 Investigation of, 217. 
 
 Making or signing false muster or aiding, abetting, 
 directing or procuring, 985. 
 
 Punishable by naval court-martial, 984, 990, 991. 
 FRAUDULENT ENLISTMENT: 
 
 Death before discovery of; payment of gratuity, 554. 
 
 Discharge of minor on request of parents, 1402, 1403. 
 
 Marine Corps, 409, 996, 1000, 1222. 
 
 Minors; not void but voidable, 550, 551. 
 
 Navy, 407-409, 996, 1000, 1222. 
 
 Not a defense to desertion, 977. 
 
 Offenses during, punishable by court- martial, 62. 
 
 Pay of enlisted men. Navy, 874. 
 
 Prohibited classes, void and not voidable, .552. 
 
 Punishment, 996, 1000, 1222. 
 
 Voidalsle; court-martial jurisdiction, 977. 
 
 Void; court-martial jurisdiction during, 976. 
 FREIGHT: 
 
 Estimates and appropriations for freight and trans- 
 portation, 1102. 
 
 Excessive charges by American vessels for naval 
 supplies, 1283. 
 
 Transporting on naval vessel, 985. 
 FUEL: 
 
 See Contracts. 
 
 FUEL— Continued. 
 
 Alaskan coal; preference right to purchase for Army 
 
 and Navy, 1307. 
 District of Columbia — 
 
 executive departments, 1507, 1553. 
 general provisions not applicable to Naval Es- 
 tablishment in, 1530. 
 Naval hospital in, 1530. 
 Estimates and appropriations for. Navy, 1103. 
 Navy; purchase of, in excess of appropriations, 1116, 
 
 128S. 
 Purchase of vessels for transportation of, 1482, 1515. 
 Sale of, to officers, 943, 951. 
 
 to volunteer patrol squadrons, 1455. 
 FUEL AND TRANSPORTATION: 
 
 Appropriation available for mining and transporting 
 
 coal in Alaska, 1547. 
 Appropriation available for purchase of vessels, 1482, 
 
 1515. 
 Use of appropriation, 1407. 
 FUGITIVES: 
 
 From labor or service; naval forces not to return, 994. 
 FUNDS: 
 
 See Public moneys. 
 
 Civil service retirement and disabiUty fund, 1540, 1541. 
 
 Clothing and small stores fimd created, 1204. 
 
 Fines and forfeitures; naval courts-martial; expenses 
 
 of prisoners paid from, 1313. 
 Midshipmen's store, 770. 
 Naval hospital fund, 1159, 1160. 
 Naval pension fund; 1153,1154. 
 Naval supply account fund; creation of; charges and 
 
 credits; amount of, etc., 1557. 
 Navy petroleum fund; use of, 1399. 
 Small stores fund created for Navy, 1184. 
 FUNERAL: 
 See Burial. 
 
 Enlisted man furloughed without pay, 906. 
 Estimates and appropriations for expenses, 1103. 
 Expenses, naval personnel, 905, 906, 149S. 
 Flags issued free of cost; used for draping coffins, 1397 
 Payment of claims for, from amounts due deceased 
 naval personnel, 1305, 1306. 
 FURLOUGH: 
 
 Disabled soldiers, sailors, and marines under treat- 
 ment; reduced railroad fares, 1554. 
 Enlisted men, additional to authorized strength, 
 Navy, 1478. 
 burial expenses, 906. 
 
 clerical duty at marine headquartres, 1474. 
 hospital treatment, 903. 
 in lieu of discharge by purchase or special order, 
 
 1436. 
 pay on recall to active duty, 890, 891. 
 status, 537, 871, 872, 906. 
 
 not troops of United States, 1180. 
 Officers; by Secretary of the Navy, 5S3, 826. 
 
 by Secretary of the Navy, as measure of economy, 
 
 826, 827. 
 may be placed on, if not dismissed by court- 
 martial sentence, 583. 
 Retirement distinguished from, 583. 
 FURLOUGH PAY: 
 
 Amount of; officers of Navy, 826, 827. 
 Officer detailed to ocean mail vessel, 1217. 
 Retired officers, 910, 915. 
 
 transferred from, to retired pay list, 916. 
 Retirement of marine officers on; illegal, 622, 968. 
 of Navy officers on, authorized, 617. 
 FURNITURE: 
 
 Contracts for, not to exceed appropriations, 1116. 
 
 1625 
 
INDEX. 
 
 FUR SEALS: 
 
 Use of naval forces to protect, 1387. 
 GAMBLING: 
 
 Punishable by naval court-martial, 984. 
 GARBAGE: 
 
 Proceeds from sale of, 232, S99. 
 GARXISHMENT: 
 
 Retirement annuities, etc., civil employees, 1543. 
 Wages of enlisted men, .')73, 574. 
 GASOLINE: 
 
 Sale of, to vessels of volunteer patrol squadrons, 1455. 
 GENERAL: 
 
 Account of advances; authorized for the Navy, 1183. 
 
 Admiral ranks with, GtiS. 
 
 Admirals to have same allowances as, 1512. 
 
 Amnesty, power to grant, 85, 86. 
 
 Board; creation of, 3.57. 
 
 Location of armor plants, 1419. 
 Retired oflicer on duty with, 1 137. 
 Inspector of Supply Corps; duties of, 1304. 
 Orders; violating or refusing obediciuc to, 985. 
 Supply Committee, computing machines sold to de- 
 partments at exchange prices by, 1557. 
 procurement of supplies for executive depart- 
 ments, 1358. 
 repair of ts^pewriters by, 1557. 
 typewriters sold to departments by, 15.")7. 
 GENTLEMAN: 
 
 Conduct unbecoming officer and, punishment. Navy, 
 998-1000. 
 GERMANY: 
 
 Termination of war with; date fixed for certain pur- 
 poses, 1557-1559. 
 War with, effect of termination on insurance under 
 war risk act, 1501 . 
 effect of termination on war risk compensation, 
 1498. 
 GESTURES: 
 
 Provoking or reproachful, use of, toward other persons 
 in Navy, 984. 
 GIFTS: 
 
 See Public property. 
 
 Acceptance of, by Secretary of the Navy for naval ves- 
 sels, 1305. 
 Civil service retirement and disability fund may 
 
 receive, 1540, 1541. 
 Lands acquired by United States, 285. 
 Superior officials not to accept, 1073. 
 GOLD: 
 
 Disbursements to be made in, 1100. 
 Transporting on naval vessel, 985. 
 GOOD CONDUCT: 
 
 Medals, additional pay for, 866. 
 
 Retainer pay, Naval Reserve Force, increased because 
 of, 1450. 
 GOVERNMENT FUEL YARDS: 
 
 District of Columbia; storage and purchase of fuel for 
 departments, 1507. 
 trucks to be used for other hauling for (iovernment, 
 1553. 
 GOVERNMENT HOSPITAL FOR THE INSANE: 
 
 See St. Elizabeths Hospi/al. 
 GOVERNMENT PRINTING OFFICE: 
 
 See Printing and binding. 
 GOVERNORS: 
 
 Applications for naval equipment to be used by mili- 
 tary schools, 1277. 
 GRADES: 
 
 Chiefs of bureaus; whether office is a grade in the Navy, 
 
 366, ;«>7, 379. 
 Commander; exists only in line, 378, 507, 779. 
 
 GRADES—Continued. 
 Defined, 681, r,s2, 779. 
 
 and distinguished from title, rank and office, 449, 
 
 450, 683. 
 rank distinguished, 378, 499, 577, 6.35-638, 682, 686. 
 synonymous with rank, 379, 466, 678, 680, 907. 
 Line officers, designations of, 447. 
 Marine Corps officers, 917, 918. 
 Number of officers exceeded, 736. 
 Provisional, Naval Reserve Force, 1444. 
 Retired officers, 631. 
 
 Secretary of the Navy may establish, for enlisted men, 
 1552. 
 GRADUATES: 
 
 Naval Academy; precedence, 687. 
 GRADUATION: 
 Date of, 688. 
 Definition of, 687. 
 GRAND JURY: 
 
 Constitutional provision relating to, 118, 119. 
 Court of inquiry analogous to, 1055. 
 Government employee witness before, 416. 
 GRATUITY: 
 
 Death of naval personnel, 1546, 1547. 
 
 not applicable to persons in service on or after 
 
 October 6, 1917; 1500. 
 payment in case of deserter who fraudulently en- 
 listed, 554. 
 payments by Paymaster General, Navy; juris- 
 diction, 233, 234. 
 Honorable discharge, 883-891. 
 
 enlisted men. Marine Corps, 947. 
 Jurisdiction of accounting officers, 245. 
 Medal-of-honor men allowed, 512, 1275. 
 Naval prisoners paid, on discharge, 1310, 1311. 
 One year's pay to oflTicer wholly retired is not, 621. 
 Reimbursement for effects lost is not, 272. 
 Uniform, Naval Reserve Force, 812, 813, 1510. 
 
 not checked on temporary appointment to Navy, 
 
 1510. 
 not reduced by appointment to office in, 1444, 1451. 
 War-risk compensation not allowed in addition to, 1499. 
 GREAT LAKES: 
 See Regattas. 
 Loan of naval equipment to military schools bordering 
 
 on, 1277. 
 Rules for preventing collision, 1240-1246. 
 GUAM: 
 
 Acknowledgment of deeds in, 1291, 1292. 
 
 Census to be taken by governor, 1525. 
 
 Citizenship in, 113. 
 
 Civil employees; pay while in transit, 1278. 
 
 Governor commissioned by President, 102. 
 
 Governor's certificate as to acknowledgments in, 1291, 
 
 1292. 
 Military government of, 109. 
 governor's powers, HI. 
 Passengers transported to, by Army transports, 1298. 
 Port in, is not port of United States, 112. 
 Secretary of the Interior, jurisdiction relating to, 395. 
 Shore duty in; additional pay allowed, 1275. 
 Status of; unorganized territory, 113. 
 GUARANTEE: 
 
 Contracts; contractors and bidders required to furnish, 
 1111,1112. 
 GUARANTOR: 
 
 Contract damages charged to delinquent bidder and 
 guarantor, 1112, 1113. 
 GUARD: 
 
 Military; shooting prisoner, 57, 403. 
 
 1626 
 
INDEX. 
 
 GUABDIAXS: 
 
 Consent of; enlistment of minors, 548-551, 994. 
 enrollment in Xaval Reserve Force, 1546. 
 Insane persons; payment of pensions, 789. 
 Minors applying for enlistment; papers for appoint- 
 ment of, prepared witliout charge, 1217. 
 statement required as to age, 1402, 1403. 
 GUILTY: 
 
 Evidence after plea of, court-martial, 1024. 
 GUNBOAT COOUSSIOX: 
 
 See Recess appointments. 
 GUN CAPTAINS: 
 
 Enlisted men, Na\^; additional pay, 866. 
 GUNNERS: 
 
 See Warrant officers. 
 
 Duties; may be required to act as keeper of tlie maga- 
 zine, 533. 
 GUNNERY SERGEANTS: 
 
 Pay, allowances, ranli, retirement, etc., 1383. 
 Rank and aUowanee of first sergeants, 1271. 
 GUN POINTERS: 
 
 Enlisted men, Is'a%-A', additional pay, 866. 
 GUNPOWDER: 
 
 Navy, purchase without advertising, 1113. 
 GUNS: 
 
 Loan or gift of condemned, to societies and municipali- 
 ties, 1249. 
 Sale of, 1516. 
 SUN STEEL: 
 
 Advertising required for purchase. Navy, 1223. 
 HABEAS CORPUS: 
 
 Allowance of; to whom directed, 404. 
 
 Appeal from decision in, 409. 
 
 Arrest of petitioner after discharge, 409. 
 
 Attorney General instructs district attorneys concern - 
 
 ing, 324. 
 Body of prisoner to be produced in court, 407. 
 Definition of, 72. 
 Form of application for writ of, 404. 
 
 return to writ, 405, 408. 
 Fraudulent enlistment cases, 407-409. 
 General provisions relating to, 399-409. 
 Hearing; date of, 407. 
 
 Hearing; summary; disposition of party, 407. 
 Inquiry into matters not of record, 129. 
 Issues of fact, 407. 
 
 Jurisdiction, civil courts; cases tried before courts- 
 martial, 128, 401-403, 1047-1051. 
 Federal courts in arrests by State authorities, 51, 
 52, 53. 
 over persons in Navy, 54. 
 State courts, 53. 
 Naval officers; duty when served with writ, 405. 
 
 under nominal arrest, writ not granted to, 1029. 
 Refusal to obey; punishment; contempt of court, 405. 
 Return to writ; amendments in, 407. 
 Secretary of the Navy does not have custody of prison- 
 ers, 404. 
 Suspension of privilege, 72. 
 Time allowed for return, 405. 
 Writs of, explained, 400. 
 HAITI: 
 
 Detail of naval persoimel to, holding offices in, etc., 
 1410. 
 HANDWRITING: 
 
 E\-idence of, 1024, 1389. 
 HARBOR: 
 
 See Regattas; Rules of the road. 
 
 Commissioners; collection of toll from United States, 
 
 50. 
 
 New York; naval officer as supervisor of, 1198, 1199. 
 
 HARBORING DESERTER: 
 
 Definition of, 790. 
 
 Punishment for, 789, 790, 985, 988, 1326. 
 HARD LABOR: 
 
 Authority of courts to impose; criminal code, 1355. 
 Naval courts-martial may sentence to, 983, 984. 
 HAULING: 
 
 Secretary of the Interior, for other departments, 15.53. 
 HAW.UI: 
 
 Census taken of, 1525. 
 
 Civil employees: pay while in transit, 1278. 
 
 Pearl Harbor; rules governing navigation, anchorage, 
 
 etc., 1382. 
 Status of, as territory, 1075. 
 H.4ZING: 
 
 Brutal or cruel: punishment, 1287. 
 Definition, 1287. 
 
 Pimishment, 752, 757-759, 1178, 1286, 1287. 
 Rules to prevent, 1281 . 
 
 Single act of; midshipman not subject to dismissal 
 without court-martial, 12.SC. 
 HEADS OF DEPARTMENTS: 
 
 See Delegation of powers; Estimates; Executive depart- 
 ments; Xavy Department; Oaths; Regulations; Re- 
 ports; Secretary of the Navy. 
 Accounting officers' jurisdiction with relation to, 236- 
 
 244, 246-248. 
 Act for President, 78, 191. 
 Action on reports of chief clerks, 209. 
 Appeals from, 83. 
 
 to, 79, 362. 
 Appointment of civil employees, 205. 
 of special disbursing agents, 1095. 
 imder previous administpation; qualifications not 
 open to re\'iew, 96. 
 Assistants, authority, 213. 
 
 authority and signature of, 194. 
 authority, judicial investigation concerning, 422. 
 Attorney General may require information from, 220. 
 Attorney General's opinions required by, 295. 
 Attorneys not to be employed by, 221. 
 Bonds may be demanded by, in absence of statute, 
 
 211, 476. 
 Certificate accompanying applications for retirement 
 
 of civil employees, 1540. 
 Claims; not authorized to submit estimates for pay- 
 ment, 235. 
 Commissioner of Fisheries to be assisted by, 1133. 
 Commission to take testimony of, 422. 
 Contingent funds; expenditures require written order 
 
 of, 1105, 1106. 
 Com-t of Claims may call on, for information and 
 
 records, 1364, 1365. 
 Courts desiring evidence or records of, 194. 
 
 jurisdiction as to appointment and removal of 
 
 employees, 338. 
 jurisdiction to subpoena as witnesses, 424. 
 jurisdiction with relation to, 345-348. 
 requiring assistants to testify, 422. 
 Data furnished by, for Official Register of the United 
 
 States, 1235, 1236. 
 Death, resignation, absence or sickness of, 212, 214. 
 Decisions, Attorney General will not review, 302. 
 binding on successors, 348, 349. 
 binding on successors; but only as to specific case 
 
 decided, 349. 
 not binding on courts, 348. 
 of accounting officers may be obtained by, 1225. 
 Deficiencies proliibited; removal from office for viola- 
 tions, 1104, 1105. 
 
 54641°— 22- 
 
 -10.3 
 
 1627 
 
INDEX. 
 
 HEADS OF DEPARTMENTS-Continued. 
 
 department of Justice to afford all legal services for, 
 323. 
 
 Evidence to be furnished Attorney General concerning 
 title to lands, 2S3. 
 
 Extra compensation disallowed for temporarily per- 
 forming duties of, 217. 
 
 Hours of labor required of civil establishment, 1220, 
 1221. 
 
 Information furnished to Bureau of AVar Risk Insur- 
 ance, 149."), HOC). 
 
 Leave of absence granted civil establishment, 1221. 
 
 Mandamus proceedings against, 79. 
 
 May use force to prevent removal of records, 194. 
 
 Newspaper advertising, written authority required 
 for, 1124. 
 
 Opinions required by the President, 83. 
 
 Pardoning power exercised by, 85. 
 
 Printing of annual reports: certificate required as to 
 matter embodied in, 1239. 
 of reports from bureau chiefs; discretionary, 1238. 
 requisitions to be signed by, 1238. 
 
 Records, useless papers, disposal of, 1202, 1203. 
 
 Regulations not binding on, 200. 
 prescribed by, 193, 1223. 
 
 Reports by, as to condition of business, 1221. 
 
 to, as to condition of business; action taken when 
 in arrears, 1221. 
 
 Requisitions for printing and binding made by, 1239. 
 report to Congress concerning, 1231. 
 
 Responsibility for official acts; decisions relating to, 
 78,79,350,351. 
 
 .Salary of, 193. 
 
 Signature, what constitutes, 351. 
 
 Smithsonian Institution to be assisted by, in acquisi- 
 tions for Zoological Park, 1204. 
 
 Subpoenaed as witness, 79. 
 
 Temporary vacancy, how filled, 99, 212, 214. 
 
 Written action of, required to waive apportionment of 
 appropriations, 1105, 1384. 
 
 Written certificate as to necessity of periodicals, 1408, 
 1409. 
 HEALTH: 
 
 See Disease. 
 
 Accused before summary court-martial: punishment 
 dependent on, 1009. 
 
 Bills of, expenses and appropriations for, Navy, 1103. 
 
 Crews of naval vessels: duties of commanding officer 
 and surgeon, 995. 
 
 Fleet surgeons required to make reports to Na\'y De- 
 partment, 466. 
 
 State authorities can not require reports from navaJ 
 officers, 49, 50, 461. 
 HEARING: 
 
 Officer entitled to, before retirement. Navy, 622. 
 HEAT AND LIGHT: 
 
 Accounting officers' jurisdiction, 234. 
 
 Allowance for quarters , 696, 827, 943. 
 
 Civilian professor at Naval Academy, 701. 
 
 Sale of fuel to officers, 943, 951. 
 
 Warrant officers: allowance for, 1430. 
 
 Young Men's Christian Association buildings in na^^r 
 yards, 1366. 
 HELIUM: 
 
 Right of United States to extract from gas produced 
 by leased lands, 1532. 
 HELPERS: 
 
 Enlisted men, additional pay as ship's helpers, 866. 
 HEMP: 
 
 American growth or manufacture preferred, 1115. 
 
 HEROISM: 
 
 Advancement of naval officers for, 4.^3, 454, 734-736. 
 Enlisted men; reward for, 512, 1275, 1521-1523. 
 Marine officers, advancement, 921, 933. 
 Medals and Navy crosses in reward for, 512, 1275, 1402, 
 
 1521-1523. 
 Officers advanced for, to bo additional numbers in 
 
 grade, 1289. 
 Retainer pay. Naval Reserve Force, increased because 
 
 of, 1450. 
 Thanks of Congress; advancement in grade, 736. 
 HIGH SEAS: 
 
 Commanding officers. Navy, may exercise consular 
 
 powers upon, 575. 
 Foreign country defined to include, 905. 
 International rules for preventing collisions, 1204-1215. 
 HISTORICAL RECORDS: 
 
 Alteration of, veto of bill requiring, 35. 
 HOLIDAYS: 
 
 Closing of departments on, 201. 
 
 for deceased ex-officials, forbidden, 1220. 
 Days declared to be, 781, 782, 1224. 
 Excluded from leave of absence, employees in de- 
 partments, 1263. 
 Executive order declaring, 1220, 1221. 
 Hours of labor in executive departments, law not 
 
 applicable to, 1220, 1221. 
 Per diem employees, days allowed, 1194, 1198. 
 Regulations governing pay on, 787. 
 Sundays; following day observed, 782. 
 Suspension of work for part of day by Executive 
 order, 782. 
 HOME: 
 
 Commutation of quarters for officer at, 700. 
 
 Enlisted men on receiving ship, after discharge, 1201, 
 
 1202. 
 Naval; establishment of , authorized, 1159, 1160. 
 Port, change of, deemed a permanent change of sta- 
 tion, 1536. 
 Residence not synonymous: definitions, 876. 
 Transportation to; enlisted men on discharge, 1274, 
 
 1275, 1415. 
 Yard, naval vessels; permanent station defined to 
 include, 1536. 
 HOMESTEADS: 
 
 General provisions relating to, 1083-1087. 
 HOMICIDE: 
 
 See Manslaughter; Murder; Suicide. 
 Jurisdiction of, committed on naval vessel, 66, 67. 
 Murder may be charged as manslaughter, 67. 
 ResponsibiUty of military guard committing, 57, 403. 
 Trial of, by consular court, 69. 
 HONOR: 
 
 Commanding officers to show example of, 978. 
 HONORABLE DISCHARGE: 
 See Discharge. 
 Gratuity, 883-891. 
 
 enlisted men. Marine Corps, 947. 
 Navy, under personnel act, 1269. 
 HORSES: 
 
 Army; fiu-nished naval officers cooperating with, 433. 
 Estimates and appropriations for purchase and main- 
 tenance, Navy, 1103. 
 Inspection by State authorities, 50. 
 Restrictions on use of by public officers, 1281. 
 HOSPITAL CORPS: 
 
 Detailed with marines detached for service with Army: 
 
 jurisdiction, 1421. 
 Enlisted men: additional to authorized strength, 1478. 
 transferred to and from, 555, 557, 567, 1420. 
 
 1628 
 
INDEX. 
 
 HOSPITAL CORPS^Continued. 
 Hospital service performed by, 1420. 
 Number of enlisted men increased, 1416. 
 Organization; enlistments, appointments and promo- 
 tions: pay, duties, etc., 1262, 1263, 1419, 1420. 
 Part of Na\Tr Medical Department, 1420. 
 Pay, 847. 
 HOSPITALS: 
 
 See Naval hospitals; Naval hospital fund; St. Elizabeths 
 
 Hospital. 
 General provisions relating to, 1159-1163. 
 Insane; St. Elizabeths, in the District of Columbia, 
 
 1161-1163. 
 Ration allowance of inmates, 898. 
 Treatment of men after expiration of enlistment, 903. 
 furloughed without pay, 903. 
 HOSPITAL SmPS: 
 
 Command by medical officers, 703, 785. 
 Nurse Corps, female, eligible for duty on, 1303, 1.304. 
 HOSPITAL SUPPLIES: 
 
 Procurement of, for fleets and squadrons, 466. 
 Purchase of, in excess of appropriations, 1116, 1288. 
 HOURS : 
 
 Contracts provisions relating to eight-hour law, 1370. 
 Eight-hour law, 1117,1219, 1220, 1370. 
 Executive departments, 201, 1220, 1221. 
 Suspension of eight-hour law in national emergency, 
 
 1474. 
 Work suspended by Executive order, 782, 783. 
 HOUSEHOLD EFFECTS: 
 
 Transportation of; naval personnel, 1535, 1536. 
 HTDROGRAPHIC OFFICE: 
 
 Attached to Bureau of Na^-igation, 387, 1236. 
 Branch offices, 388, 1251. 
 Detail ofnaval officers to, 389, 1508, 1545. 
 Duties of, 387. 
 
 Naval Obsers-atory and, 391. 
 Foreign hydrographic surveys; use of appropriations; 
 
 report of board, 1237. 
 General pro^-isions relating to, 387-390. 
 Jurisdiction of, and Weather Bureau, 388. 
 Maps, charts and nautical books: prepared and sold at 
 
 cost, 390, 1182, 11S4. 
 Printing and engra^-ing for, estimates to be separate 
 
 and in detail, 1197. 
 Publications; number of copies to be printed, 1238. 
 receipts from, covered into Treasury as miscella- 
 neous receipts, 1543. 
 Purchase of plates and copyrights of maps, charts, etc., 
 
 1236, 1237. 
 Sale of maps, charts, nautical books, etc., 390, 1182, 
 
 1184, 1236, 1237, 1543. 
 Super%ision of branch offices, 388. 
 Wilkes's Expedition; plates loaned to Navy Depart- 
 ment, 380. 
 HTDROGRAPHIC SURVEYS: 
 
 Coast of United States: employment of naval officers, 
 
 1151. 
 Foreign, preparation and publication of; duties of 
 Secretary of the Na\-y, 1106. 
 use of appropriations for, 12.37. 
 HTGIEXE BOARD: 
 
 Interdepartmental, creation of, etc., 1517, 1518. 
 HYPOTHETICAL QUESTIONS: 
 
 Attorney General will not answer, 299-301. 
 Secretary of the Nax-y will not decide, 349, 350. 
 IDIOT: 
 
 Insane person or lunatic includes, 185. 
 ILLEGAL ACTION: 
 
 Civilliability of commanding officer for, 1003. 
 Congress may protect officers from responsibihty for, 57. 
 
 ILLEGAL ACTION— Continued. 
 
 Discharge illegal: court-martial sentence set aside, IOCS', 
 1009. 
 
 Dismissal illegal; revocation of, 1011. 
 
 Examinations for promotion, 616. 
 
 President's action on retiring board: effect, 96>t, 969. 
 
 Responsiliility of heads of departments for, 7s. 
 • of officers for, 350, 351, 1003. 
 
 Retirement illegal : revocation of , 596 . 
 statusof officer, 641. 
 
 Retirement of marine officer on furlough pay, 62!. 
 of naval officer invalid, 587. 
 ILLEGAL ORDERS: 
 
 See Orders. 
 
 Subordinate not bound to obey, 352. 
 ILLUSTRATIONS : 
 
 Restrictions on; annual reports and other publications, 
 1239, 1284. 
 LVnnGRATIOX: 
 
 Naval forces employed in enforcing laws, 1081. 
 nOIUNHTY: 
 
 Member of Congress, 33. 
 OIPARTIAL TRIAL: 
 
 Right ofaccused, 129, 131. 
 OIPORTS: 
 
 Coal for Na\-y, subject to duty, 1408. 
 
 Dutiable goods in naval vessel, 989. 
 
 Foreign war material for Na^-y> free of duty, 1396. 
 
 Lottery tickets, etc., 1.346, 1347. 
 
 Obscene books, etc., 1-347. 
 EMPRIS ON'^IENT : 
 
 See Arrest; Hard labor; Penitentiaries; Prisoners; Prisons. 
 
 Beyond term of enlistment, 1064. 
 
 Courts-martial authorized to adjudge, 990. 
 
 Midshipmen, for brutal or cruel hazing, 1287. 
 
 Naval officers dropped from rolls during, 1503. 
 prisoners; allowances to during, 1310, 1311. 
 
 Place of, designated by renewing authority, court- 
 martial cases, 1064. 
 
 Sentence to, until payment of fine, 1063, 1064. 
 
 Witnesses: to insure appearance, 425, 426. 
 OIPRO VEMENTS : 
 
 Cash rewards to ci^^l employees for suggesting, 1514. 
 
 Erected on lands leased by Navy; property of lessor. 
 1508. 
 
 Jurisdiction over lands on which erected, 284. 
 INADEQUATE: 
 
 See Sentence. 
 INAPTITUDE: 
 
 Discharge of enUsted men for; refund of enlistment 
 bounty, 1292, 1294, 1298. 
 INCAPACITY: 
 
 Definition of, 598. 
 
 Retirement, 603. 
 INCEST: 
 
 Definition and punishment, 1354. 
 INCIDENT OF THE SERMCE: 
 
 See Line of duty. 
 
 Incapacity due to; retirement, 603. 
 
 Line of duty synonymous with, 005. 
 
 Retirement, 617. 
 
 burden of proof, 915, 916. 
 
 Retirement, Marine Corps, 964. 
 staff officers: rank, 687. 
 INCO>IE TAX RETURNS: 
 
 Oaths to, executed before naval officers, 218, 
 INCOMPATIBLE OFFICES: 
 
 Definition, 1069. 
 
 Naval officer and draftsman in Hydrographic Office, 
 389. 
 
 Vacancy created by acceptance of, 215, 989. 
 
 1629 
 
INDEX. 
 
 INCOMPKTEXCY: 
 
 Summary court-martial may disrate for, 1007. 
 INCREASE OF THE NAVY: 
 
 Equipment outfits chargeaVile to "Increase of the 
 Navy, construction and machinery, " 1108. 
 INCRIMINATIOX: 
 
 .^ee Self-crimination. 
 INDEBTEDNESS: 
 
 .\rrest for; marines exempt from, 9.35. 
 Conduct unbecominK an officer, 025, 999, 
 Enlisted man; discharge not delayed for, 560. 
 attachment of wages, .'i7^, 574. 
 effect of discharge, 567. 
 transferred from Army to the Navy or Marine 
 
 Corps, 555. 
 travel allowance on discharge, regardless of, 876. 
 Officer found not morally qualified for promotion be- 
 cause of, 624, 625. 
 Previous enlistment, 245. 
 
 Private, United States not collecting agency, 199. 
 Suit by United States to recover, 1072. 
 Witliholding pay of delinquent officer, 1072. 
 INDECENT: 
 
 See Obscene. 
 INDEMNITY: 
 
 Enlisted men, for eflects lost on vessels, 1106. 
 INDEX: 
 
 Contracts; kept by returns office, 398. 
 Public documents, to be published, 1234. 
 INDIANHEAD: 
 
 Jurisdiction of United States and Maryland, 294. 
 INDIANS: 
 
 Citizenship of, 137. 
 IN'EFFICIENCY: 
 
 Civil establishment; annual report of, to Congress, 
 
 1204. 
 Civil establishment; dismissals, 1383. 
 Culpable, in performance of duties; punishment, 
 
 Na-\T. 9S4. 
 
 Summary court-martial may disrate for, 1007. 
 INFAMOUS: 
 
 Crimes, 118. 
 
 Punishments, 118, 134. 
 INFERIOR: 
 
 Officers; constitutional provision construed, 89-90. 
 
 Petty officer entitled to obedience from, 525. 
 INFLUENCING: 
 
 Legislation; punishment, 1527. 
 INFORMATION: 
 
 Appropriation for obtaining, at home and abroad; 
 accounting for expenditures, 1417. 
 INHABITANTS: 
 
 See Natives. 
 
 Foreign countries; claims for damages caused by 
 American forces, 1504, 1508. 
 
 Insular possessions, status of, 113. 
 
 Offenses against, on shore; punishment, Navy, 985. 
 INJUNCTION: 
 
 To prevent dismissal, 99, 338. 
 INJURY': 
 
 See Courts of inquiry; Death; Disability; Line of duty; 
 Retirement; Veterans; War risk act. 
 
 Absence due to, caused by misconduct, 825, 1436. 
 
 Compensation for, naval personnel, 1498-1501. 
 
 Defined to include disease, 1496. 
 INLAND WATERS: 
 
 See Regattas. 
 
 Rules for preventing collision, etc., 1246, 1247, 1251- 
 1201, 1.356-1358. 
 
 INQUESTS: 
 
 -Vutopsics; authority of naval medical officers to per- 
 form, 400, 401. 
 Coroners; right to hold on United States reservations, 
 293. 
 INQUIRIES: 
 
 See Board of inquiry; Courts of inquiry. 
 Expenses of, not allowed without special appropria- 
 tion, 1105, 1316. 
 INSANE: 
 
 Defense before court-martial, 10.30, 1031. 
 
 Defined, 185. 
 
 Enlistment prohibited, 551, 994. 
 
 Interned persons and prisoners of war; admission to 
 
 St. Elizabeths Hospital, 1417, 1418. 
 Naval personnel, commitment to hospitals, 788, 789. 
 Pay and expenses of, confined in institutions, 788. 
 St. Elizabeths Hospital in the District of Columbia 
 1161-1163. 
 INSIGNIA; 
 
 Acceptance of, from foreign State, 76. 
 INSPECTION: 
 
 Accounts, by general inspector of Supply Corps, 1304. 
 Provisions on naval vessels; duties of commanding 
 officer, 995. 
 INSPECTION AND SURVEY: 
 
 Naval vessels; board of naval officers, 1190. 
 INSPECTORS: 
 
 Fuel purchased for public service, 1110. 
 INSTITUTIONS: 
 
 Detail of naval officers to colleges, etc., 435. 
 INSTRUCTORS: 
 
 Naval Academy; number and compensation, 1457, 
 1535. 
 INSULAR FORCE: 
 
 Enlisted men, pay of, 863, 864. 
 status of, 538. 
 INSULAR POSSESSIONS: 
 
 Additional pay fot shore duty, 1275. 
 Employees, 782. 
 
 leave of absence cumulative, 1417. 
 pay for travel to and from United States, 1278. 
 pay on holidays; regulations governing, 787. 
 sale of stores to, 1313, 1314. 
 Status of. 111. 
 
 inhabitants, 113. 
 Virgin Islands; temporary government, 1470-1472. 
 INSURANCE: 
 
 See liar risk act. 
 INSURRECTION: 
 
 Enlisting to serve against United States, 1318. 
 General provisions relating to, 1169-1172. 
 Inciting rebellion, etc., 1317. 
 Mailing matter urging, 1489, 1490. 
 Philippine; whether state of war, 272. 
 Use of militia to suppress, 69. 
 INTELLIGENCE: 
 
 Giving to enemy or rebel; punishment for, Navy, 979. 
 INTENT: 
 
 Bonds; construction of, 481. 
 
 Desertion; to remain permanently absent; commis- 
 sioned officer, 989. 
 Statutes; construction of, 10. 
 INTERCOURSE: 
 
 With enemy or rebel, punishment for, 979. 
 delivering seducing messages, etc., 981. 
 INTERDEPARTMENTAL SOCIAL HYGIENE 
 BOARD: 
 Creation of, etc., 1517, 1518. 
 
 1630 
 
INDEX. 
 
 INTEREST: 
 
 Pay, miscellaneous, credited with, 1222. 
 INTERIOR DEPARTMENT: 
 
 Copies of contracts to be filed in returns office of, 1118, 
 
 1119. 
 General provisions relating to, 395-398. 
 Jurisdiction of Commissioner of Pensions and Secre- 
 tary of the Navy, 1155. 
 Returns office estabUshed in, 397. 
 INTERNATIONAL: 
 
 Agreement; marking and removal of derelicts and 
 
 \VTecks, 1223. 
 Law; jurisdiction of courts, 105. 
 
 otienses against, power of Congress, 38. 
 Helations; enforcement of neutrality; espionage, etc., 
 
 1482-1490. 
 Rules for preventing coUision at sea, 1204-1215. 
 INTERNMENT: 
 
 Insane; admission to St. Elizabeths Hospital, 1417, 
 
 1418. 
 Naval officers in neutral country; pay and allow- 
 ances during, 892. 
 INTERPRETATION OF STATUTES: 
 See Statutes. 
 General principles, 9-24. 
 INTERPRETER: 
 
 Not a witness, 412. 
 INTERROGATORIES: 
 See Depositions. 
 Depositions, 219. 
 INTOXICANTS: 
 
 See Alcoholic liquors; Drunkenness. 
 Absence from duty caused bj-; naval personnel, 1436. 
 Board of Visitors, Naval Academy; expenses, 1197. 
 Distilled spirits on naval vessels, admitted for medical 
 
 purposes, 989. 
 Mailing of; punishment, 1342, 1343. 
 Midshipmen to be instructed as to the nature and 
 
 effects of, 1194, 1195. 
 Prohibition of, near miUtary camps, and to persons in 
 uniform, etc., 1477, 1478. 
 INTOXICATED PERSONS: 
 Enlistment prohibited, 551. 
 Penalty for enlistment of, 994. 
 Punishable by naval court-martial, 984. 
 INVENTIONS: 
 See Patents. 
 
 Applications for patents; Government interested, 1165. 
 Patents obtained by officers of United States, 1192, 
 
 1193. 
 PubUcation of, in time of war, restricted, 1494, 1501, 
 
 1502. 
 Secretary of the Interior, duties relating to, 395. 
 Use of, by Government, 1192, 1193, 1494. 
 INVENTORIES: 
 
 Department property, records to be kept of, 227. 
 INVESTIGATIONS : 
 
 Absence from duty of naval personnel; cause of, 1436. 
 Boards may administer oaths, 217. 
 Expenses of, not allowed, without special appropria- 
 tion, 1105, 1316. 
 Officers appointed to conduct, may administer oaths, 
 217. 
 INVOLUNTARY SERVITUDE: 
 
 Military and naval enlistments not prohibited, 136. 
 IRONS: 
 
 Abolished in Navy, except by sentence of general 
 court-martial, etc., 1309. 
 IRREGULARITIES: 
 Acquiescence in, 604. 
 Court-martial, 1020, 1033, 1045-1047. 
 
 IRREGULARITIES— Continued. 
 
 Examinations for promotion, ell'ect of, 596. 
 Examinations for promotion; fatally defective, 723, 72S. 
 Fatal defects distinguished; court-martial proceedings, 
 
 1045-1047. 
 Investigation of, 217. 
 
 President's action on retiring board, 968, 969. 
 Retirement proceedings, 601, 602, 911, 912. 
 IRRESISTIBLE IMPULSE: 
 
 Defense of, before court-martial, 1031. 
 JAPANESE: 
 
 Citizensliip of, 139. 
 
 Naval forces employed in preventing immigration 
 of, 1081. 
 JEOP.4RDT: 
 
 Constitutional provision applies to Navy, 69. 
 Court-martial proceedings bar to trial by civil court, 
 
 1047. 
 Defined, 119. 
 
 New trial by court-martial, 1047. 
 Protection against double, 119-121. 
 Punishment without court-martial not bar to trial 
 1004. 
 JEWELS: 
 
 Transporting on naval vessel, 985. 
 JOINDER: 
 
 Offenses; charges and specifications, 1028. 
 JOINT FORCES: 
 
 Army and Na\'y; command of, 443, 444, 668. 
 JOURNALS: 
 
 Of Congress; extracts evidence in court, 428. 
 JUDGE ADVOCATE: 
 
 Accused entitled to obtain opinion from, 133. 
 
 Acting as counsel for accused, 133. 
 
 Admissions by; what absent witness would testify, 
 
 1055. 
 Authorized to administer oaths for purposes of naval 
 
 administration, 1240. 
 Counsel furnished by Department of Justice to assist, 
 
 222, 324. 
 Court of inquiry, 1055. ' 
 
 Duties, 1019. : 
 
 Judgment signed by, 1034. ' 
 
 Oath of, 1019. ■ 
 
 Presence in closed court, 128. 
 Quahflcation for service as, 222, 223, 1019, 1020. 
 ResponsibiUty for truth of record, 1034. 
 JUDGE ADVOCATE GENERAL: 
 
 Army; jurisdiction of court-martial over, 62, 366. 
 
 suspension of; how duties temporarily performed, 
 215. 
 Assistant to, detailed from line of Navy or Marine 
 
 Corps, 1418. 
 Deck-court records to be reviewed by, 1309. 
 Navy; coimsel for examining board detailed by, 723. 
 court-martial proceedings; power to revise, con- 
 strued, 1043. 
 duties, 321, 359. » 
 
 questions of law before examining boards, 712. 
 office not different from bureau, 359. 
 opinion must accompany request for Attorney- 
 General's opinion, 309, 321. 
 pay, 371, 1512. 
 
 rank on retirement, 372-376, 673. 
 rank, pay, and allowances, 1512. 
 rations not allowed to, 897. 
 retirement does not vacate office, 376. 
 soUcitor in office of; investigation conducted by, 218. 
 sued by officer for damages, 55. 
 Supreme Court reports and digests furnished to, 
 1365. 
 
 1631 
 
IXDEX. 
 
 JUDGE ADVOCATE GENERAL— Continued. 
 
 Navy; tcmporarj' rlerks in ofllce of, during sessions of 
 
 Congress, Ml. 
 Oflicc created; to be in Navy Department; duties; 
 
 rank and pay; appointment, USO, 1187. 
 Pay after retirement, 377. 
 JUD(;MENT: 
 See Discretion. 
 
 Naval court-martial; authenticated by signatures of 
 members and judge advocate, 1034. 
 JUDICIAL: 
 
 Code, 1HC>0-I36r>. 
 
 Court of inquiry not, 105.'). 
 
 Notice; authority of public officers, 213. 
 
 State laws, 429, 430. 
 Power; constitutional provision relating to, 104. 
 Questions; .\ttorney (ieneral will not answer, 306. 
 System; courts-martial not part of, 37. 
 explanation of, 37. 
 JUDICIARY: 
 
 (ieneral provisions relating to, 399-432. 
 JURISDICTION: 
 
 See Accnunti/ig officers; Courts-martial. 
 Accounting officers and courts, 235. 
 and heads of departments, 2.36-244. 
 and Secretary of the Navy, 198, 268, 272, 273, 566, 
 828, 829, 9a3, 1315. 
 responsibility for loss of fimds, 1527, 1528. 
 vaUdity of regulation, 838, 839. 
 cause of incapacity, retired officer, 605. 
 ships' stores profits, 13.59. 
 Army and Navy aviation, defmed, 1554. 
 Army, over naval personnel, 1544. 
 Attorney General and Comptroller of the Treasury, 
 311-320. 
 opinions binding on accounting officers, 318. 
 supervision of litigation involving Government, 
 
 281. 
 will render opinion where jurisdiction doubtful, 
 321. 
 Civil authorities, persons in naval service, 65. 
 
 courts with relation to courts-martial, 60, 128, 401- 
 403, 1001, 1047-1051. 
 Claims for effects lost in naval service, 271. 
 Coast and Geodetic Survey, operating with Navy dur- 
 ing war or emergency, 1479, 1480. 
 Coast G.uard; laws to which subject, 1455. 
 Commissioner of Pensions and Secretary of the Navy, 
 
 396, 397, 1155. 
 Consent can not confer on court, 125, 977, 1033. 
 Consular and military authorities, 576. 
 Coroners, United States reservations, 293. 
 Courts and executive departments, 345-348. 
 Courts-martial; change of status does not divest, 403. 
 enlistment expired, 558. 
 exceeding, responsibility for, 54. 
 olTenses, 05. 
 persons subject to, 62. 
 Discharged enlisted men, pending reenhstment; sub- 
 ject to regulations, etc., 1201, 1202. 
 Enlisted men subject to Navy laws until discharged, 
 
 555, .556. 
 Examining boards; courts can not review, 728. 
 Foreign nations over United States vessels, 67. 
 Homicide on naval vessel, 66, 67. 
 Hydrngraphic Office and Weather Bureau, 388. ■ 
 International law questions, 105. 
 l,and purchased by United States, 282. 
 Lighthouse Service during war or emergency, 1456, 
 1457. 
 
 JURISDICTION-Continued. 
 
 Marines embarked on naval vessel, 1442. 
 Militia, Federal and State, 71. 
 Murder committed on naval vessel, 983. 
 Naval reservations, 292-294. 
 
 Naval Reserve Force; laws and regulations of Na\-y 
 applicable to, 1446, 1447, 1451, 1511. 
 while wearing imiforra, but not in active ser\'ic6 
 1511. 
 Navy medical personnel detailed with marines de- 
 tached for service with .Vrmy, 1421. 
 OlTenses violating both miUtary and civil law, 120. 
 Political questions, 104. 
 Public Health Service in time of war, 1491. 
 Public officer exceeding; violation of oath, .320. 
 Responsibility of executive officers exceeding, 78. 
 Secretary of the Interior and Secretary of the Navy; 
 
 contracts, 397. 
 State and Federal authorities, 47, 51. 
 State authorities, to require health reports from naval 
 
 officers, 49, 50, 461. 
 Summary courts-martial, 1005. 
 
 United States, exclusive, 72, 282-284, 1348-1351, 1353, 
 1354. 
 property purchased in States, 289-292. 
 reservations in Maryland, 293-294. 
 War, discipline of Army, 42. 
 
 military power over civilians, 44. 
 JURY: 
 
 Court-martial compared to, 1039, 1055. 
 Court of inquiry analogous to grand jury, 1055. 
 Not required in Navy, 59, 68. 
 Trial by, in criminal cases, 129, 130. 
 JUSTICE: 
 
 Administration of, Navy, 1308-1312; 1441, 1442. 
 KEEPER OF THE MAGAZINE: 
 
 Office may be abolished at navy yards, 533. 
 KING: 
 
 Acceptance of presents from, 75. 
 LABORERS: 
 
 See Civil establishment; Pay of civil establishment. 
 Appointment, number, pay, etc., 204, 205, 209, 381. 
 Eight-hour law applicable to, 1117. 
 contract provisions, 1370, 1371. 
 Estimates and appropriations for. Navy, 1103. 
 Material men and, contracts for public works, 1227, 
 
 1228. 
 Navy yards; employment of, 780. 
 Not to be used for private purposes, 702. 
 LAND AND NAVAL FORCES: 
 
 See Army; Marine Corps; Naval forces. 
 Congress to make regulations for, 58. 
 Defined, 58. 
 LAND GRANT: 
 
 Railroads, 1179, 1180. 
 LANDS: 
 
 See Condemnation: Public properly. 
 
 Attorney General to report upon title and jurisdiction, 
 
 282. 
 Condemnation proceedings, 1199, 1518. 
 Condemnation proceedings, for military purposes, 1490, 
 
 1491. 
 Leases granted by Navy; revocable; term of, 1419. 
 Leased to Na^'y; improvements on to become property 
 
 of lessor, 1508. 
 Military reservations, 1087. 
 
 Oil; petroleum reserves, etc.; leases of, 1532, 1533, 1545. 
 Public; general provisions relating to, 1083-1089. 
 Purchase of, for United States; releases obtained by 
 President, 1121. 
 
 1632 
 
IXDEX. 
 
 LANDS— Continued. 
 
 Sale of, by executive departments, 1516. 
 
 Sites for Na\-y hospitals; Secretary may procure, 1159, 
 
 1160. 
 Title to and jurisdiction over, 282. 
 Transfers between Army and 'Sa.yy, 1528. 
 to jurisdiction of Navy Department, 1457. 
 to Public Health Service, 1526, 1559. 
 JC4ANDSMEN: 
 
 Marines may be substituted for, 955. 
 I4ANGUAGE: 
 
 Disrespectful, to superior officer, Navy, 984. 
 LARCENY: 
 
 Arms, stores, money, etc., furnished for naval service, 
 
 990, 1325. 
 Books, maps, records, etc., 1335, 1.336. 
 Checks for public money; duplicates issued, 1098, 1099. 
 Honorable discharge blanks, 509. 
 Mail matter, 1338. 
 Money or property intended for naval service, 990, 
 
 1325. 
 Personal property of United States, 1328. 
 Post office property, 1337. 
 Private property, 1350. 
 Public money, property, records, etc., 1328. 
 Punishable by naval court-martial, 984, 990. 
 Punishment for, 1324. 
 Written instruments: value of, 1350. 
 LAUNDRIES: 
 
 Marine Corps; appropriations credited with receipts 
 from, 1531. 
 LAW: 
 
 See Mistale of law. 
 
 AccountLag officers' interpretation not binding, 239. 
 
 Amendments to; Attorney General will not advise as 
 
 to desirability of, 299. 
 Conflict of; bonds, 490-491. 
 Contracts terminated by operation of: payment of 
 
 reservation, 1115, 1116. 
 Decisions of courts and law officers, effect of, 6. 
 Foreign; Attorney General will not render opinion con- 
 cerning, 299. 
 Ignorance of, 477. 
 International, oilenses against, 38. 
 Judicial notice of State laws, 429. 
 Maintaining, by use of vessel loaned to naval miUtia, 
 
 114. 
 MUitia may be used to execute, 69. 
 Naval forces employed in enforcement of, 1081, 1088, 
 
 1130, 1131, 1169, 12S9, 1290, 1300, 1301, 1387. 
 Na^•y; appUcable to Marine Corps, 962, 967, 968. 
 
 where found, 1. 
 President's duty to see that laws are faithfully exe- 
 cuted, 101. 
 Questions arising before examining boards, 712. 
 
 arisi-ag in Navy Department; .Vttorney General to 
 
 dispose of, 321. 
 decided by courts-martial, 1024, 1045. 
 Regulations have force of, 197. 
 
 State, appUcable in Federal reservations; criminal code, 
 1351. 
 laws and records; e\'idence of, 429, 4.30. 
 United States, enforcement of, abroad, 70. 
 LAW BOOKS: 
 
 Restrictions on purchase of, 1261. 
 LE-^SES: 
 
 Land- fur use of Navy; improvements to become prop- 
 erty of lessor, 1508. 
 Naval lands; revocable; term of, 1419. 
 Naval petroleum reserves, etc., 1532, 1533, 1545. 
 
 LEAVE OF ABSENCE: 
 
 See Absence; Absence without leave; Furlough; Liberty; 
 Line of duty; Pay of civil establishment; Pay of Naval 
 Establishment. 
 Can not be forced on officer or enlisted man, 574. 
 Ci^'il employees: belonging to National Guard, 1412. 
 disabled in line of duty, 1468. 
 employment of substitute, 207. 
 executive departments, 1221, 1263. 
 insular possessions; cumulative, 1417. 
 members of Officers' Reserve Corps, 1476. 
 na^'y yards and stations, 781, 1464. 
 pay for services during, 1390. 
 Sundays and holidays excluded, 1263. 
 Commanding officers to grant, 574. 
 Enlisted men, Navy; pay during, 869. 
 
 on clerical duty at marine headciuarters, 1474. 
 Liberty on shore; deprivation of by commanding offi- 
 cer as punishment, 1002. 
 on foreign station; deprivation of by summary 
 court martial, 1000. 
 Medical expenses, enlisted men, during, 903. 
 Midshipmen, 764. 
 Nurse Corps, female, 807. 
 Officers, Marine Corps; pay, 941. 
 
 Na^'y, appointed to office in Brazil, 1399. 
 pay, S23-S25. 
 Retired officers, 659. 
 
 Sickness; medical expenses of officer, 904. 
 Sundays and holidays excluded from, employees in 
 
 departments, 1263. 
 Suspension of officer by court-martial sentence, equiva- 
 lent to, 584. 
 Travel of officer, to and from; mUeage, 843, 844. 
 Warrant officers, 1430. 
 Witnesses in Government service, 413, 417. 
 LEG.IL REPRESENT.\TI\^S: 
 See Death; Effects. 
 
 Effects of deceased persons on vessels to be secured for 
 995. 
 LEGAL SERVICES: 
 
 See Attorney General; Counsel; Department of Justice. 
 Attorney General to pro^ide for Na\-y Department, 
 
 321. 
 Department of Justice to furnish all required by de- 
 partments, 323. 
 LEGISLATION: 
 
 Delegation of power by Congress, 59, 195, 784, 787. 
 Influencing; restrictions on use of appropriations; 
 
 punishment, 1527. 
 Powers of Congress, 30. 
 Procuring by private soUcitation, 30. 
 LEGISL.ATURE: 
 
 State; consent to purchase of land by United States, 
 i 282,283. 
 
 LENGTH OF SERVICE: 
 
 See Pay of Naval EstabUshmcnt; Retirement: Service. 
 Army and Navy service credited to naval officers, 1191. 
 Army cadet service not credited to naval officers, 1390. 
 Computation of, for pay and retirement: officers of the 
 
 Na-i-y, 587-589, 1191, 1390, 1535, 1550. 
 Constructive, credited to naval officers for pay pur- 
 poses, 1268. 
 for precedence, 691, 694. 
 Date service commences, 838. 
 
 Dental officers who have gained or lost numbers, 1421. 
 Enlisted men; how computed for retirement, 1269, 
 1270, 1291, 1299. 
 transferred to Naval Reserve Force; how com- 
 puted, 1449. 
 
 1633 
 
INDEX. 
 
 LENGTH OF SERVICE— Continued. 
 Marine olTicers. computation of, 969. 
 
 credited with, 927. 
 Midshipman service not credited to Army officers, 1388. 
 
 not credited to naval oflicers, 1.390. 
 Naval Academy band members credited with prior 
 
 service, 1.355. 
 Naval Reser\-e Force, computation of service, 1509, 
 
 1510. 
 Oflicers advanced or losing numbers, ellect of, 691 , 1421. 
 
 transferred to diiTerent branch of service, 1249. 
 Pay of enlisted men, Navy, increased for, 862, 867, 868, 
 8S.3-891. 
 officers of Navy, increased for, K21-82;?, 1.301, 1302. 
 retired officers, 908, 909. 
 Precedence; computation of service for, 691. 
 line and staCf officers, 689-695. 
 of officers. Army, Navy and Marine Corps, having 
 same date, 668. 
 Promotion by selection; constructive service credited, 
 
 694. 
 Retirement; cliiefs of bureaus, 672, 673. 
 Marine Corps, 964. 
 naval officers for, 1303. 
 stafi officers, rank, 685. 
 LIBEL: 
 
 '^ee Privileged communications. 
 Indecent matter bn wrappers of mail, etc., 1341. 
 Prize property; proceedings, 1139. 
 Records furnished for use in civil suit, 356, 357. 
 Responsibility of officers for official acts, 350, 351. 
 LIBERTY: 
 
 See Leave of absence; Line of duty. 
 
 Commanding officers to grant to faithful and obedient, 
 
 574. 
 Definition of; due process of law, 124. 
 Deprivation of: persons in naval service, 1.36, 1002, 1006. 
 LIBERTY BONDS: 
 
 Accepted in lieu of sureties, 1523, 1524. 
 LIBRARIES: 
 
 Designated depositories for Government publications; 
 executive departments. Naval Academj-, etc., 1240. 
 LIBRARY OF CONGRESS: 
 
 Departmental books, maps, etc., transferred to, 1280. 
 publications furnished to, 1273, 1274. 
 LICENSES: 
 
 Chauffeur of Government automobile, 48. 
 Medical; Hospital Corps member arrested for prac- 
 tising without, 400. 
 Naval officers required to have, when serving as officer 
 
 of private vessel, 1135, 1136. 
 Na\'igation requirements not applicable to officers of 
 
 public vessels, 11-35, 1136. 
 Officers of merchant vessels; duties required of in time 
 
 of war, 1249. 
 Use of public lands, 291 . 
 LIEUTENANT COLONELS: 
 Commanders rank with, 602. 
 Number of. Marine Corps, 1458. 
 LIEUTENANT COM3IANDERS: 
 Pay, 792, 798, 1301, 1302. 
 
 Promotion by selection to commander, 1430, 1513. 
 Proportion of in line, 1425. 
 Rank with majors, 662. 
 
 Retirement of, for purpose of creating vacancies, 1265. 
 LIEUTENANT GENERALS: 
 Vice admirals rank with, 602. 
 
 to have same allowances as, 1512. 
 LIEUTENANTS (JUNIOR GRADE): 
 Acting ensigns commissioned as, 1436. 
 
 LIEUTENANTS (JUNIOR (JRADE)— rontinuc.l. 
 -Vssistant civil engineers to take rank and precedence 
 with, 1474. 
 surgeons to rank with on original appointment, 
 1426. 
 Commissioned warrant officers may receive pay and 
 allowances of, 1429, HM. 
 retired, allowed pay of, 1.503, l.")04. 
 Ensigns promoted to, 1204. 
 Examinations reiiuired for promotion to, 1190. 
 Grade of master changed to, 448, 1190. 
 Pay, 792, 799, 1.301. 
 
 Promotion of ensigns to; examinations required, 1190. 
 length of service requirement. 1204. 
 length of service requirement suspended, 1551. 
 Promotion to lieutenant; engineering duty, 1436. 
 length of service, 1425. 
 
 length of ser\'ice requirement suspended, 1551. 
 Proportion of, in line, 1425. 
 Rank with first lieutenants, 662. 
 Warrant officer, retired, allowed pay of, 1503, 1504. 
 LIEUTENANTS, NAVY: 
 
 See First lieutenants: Lieutenants {junior grade); Second 
 
 lieutenants. 
 Commissioned warrant officers may receive pay and 
 allowances of, 1429, 14.30. 
 retired, allowed pay of, 1503, 1.504. 
 Examination required for promotion to, 1190. 
 I^ength of service requirement for promotion to, 1425. 
 
 requirement suspended, 1.551. 
 Pay, 792, 799, 1301. 
 
 Promotion of lieutenants (junior grade) to, 1190, 1425. 
 Proportion of in line, 1425. 
 Rank with captain. Army, 662. 
 Warrant officers, retired, allowed pay of, 1503, 1504. 
 LIFE SAVING DRESS: 
 
 Use of in the Na\'y, 1191. 
 LIFE-SAVING SERVICE: 
 
 Consolidated with Revenue Cutter Service under ntme 
 of Coast Guard, 1400. 
 LIGHT: 
 
 See Heat and light. 
 LIGHTHOUSE SERVICE: 
 
 Commissioned officers of, eligible for membership on 
 
 naval courts-martial, 1494. 
 Expenses defrayed from naval appropriations, 1456, 
 
 14.57. 
 Naval officers not allowed additional compensation 
 
 under detail to, 1149. 
 Status and duties during war or emergency, 1456, 1457. 
 Traveling expenses, naval officers detailed to, 1298. 
 LIGHT LISTS: 
 
 Publication by Hydrographic Office; number of copies 
 printed, 1238. 
 LIMBS: 
 
 Artificial; allowance to disal)led personnel, 1150, 1157, 
 1181, 1217. 
 LEVIITATION OF PUNISH3IENTS: 
 
 Court-martial sentences in time of peace, 1062-1064. 
 LIMITATIONS: 
 
 See Statute of limitations. 
 LINE OF DUTY: 
 
 Burden of proof; officer before retiring board, 915, 916. 
 Compensation for death or disability, naval personnel, 
 
 1498-1501 . 
 Decisions relating to, 605-616. 
 Defined, 605. 
 
 by Court of Claims, 610. 
 Discharge for disability not incurred in; refund of en- 
 listment bounty, 1298. 
 
 1634 
 
INDEX. 
 
 UNE OF DUTY— Continued. 
 Evidence, 611,612. 
 E^^dence; burden of proof, 612. 
 
 medical experts, 611. 
 Incident of the service sjTionjmious with, 605. 
 Loss or deficiency of funds incurred by NaAT (dis- 
 bursing officers in, 1527, 1528. 
 Presumption in favor of, 611. 
 Prisoners, 613, 614. 
 
 Promotion of officer receiving wounds in, 709. 
 Rank on retirement of marine officer incapacitated 
 for promotion, 965. 
 naval officer incapacitated for promotion, 1366. 
 Refusal of officer to submit to surgical operation, 615, 
 
 616. 
 Specific cases involving question of, 612. 
 Suicide; evidence in cases of, 612. 
 questions relating to, 614, 615. 
 Wounds received in: promotion not barred by, 709. 
 LINE OFFICERS: 
 
 Age for promotion by selection, 1434. 
 
 Aid or executive of commanding officer, 669. 
 
 Appointed from graduates of Naval Academy, 765- 
 
 768, 11S8, 1189, 1193, 1392. 
 Chiefs of bureaus, appointments, 378. 
 Commodore omitted from grades of, 1264. 
 Construction officers may exercise command over, 508, 
 
 1359. 
 Definition, 448. 
 
 Detailed as assistant to chief. Bureau of Ordnance, 1261. 
 as assistant to Judge Advocate General, 1418. 
 as commandant of navy yard, 779. 
 as supervisor of New York Harbor, 1198, 1199. 
 to duty under staff officers, 1359. 
 to engineering duty, 1435. 
 Distribution of in grades, 1425. 
 
 Duties not compatible with grades of staff officers, 507. 
 Grades of, 447. 
 
 Marine Corps; relation of staff to, 921, 922. 
 Midshipmen appointed as, 76.5-768, 1188, 1189, 1193,1392. 
 Naval Reserve Force, 1443. 
 Number of, 450-453, 1424. 
 
 permanent strength not reduced by act of June 4, 
 
 1920; 1549. 
 reservists on active duty and temporary officers 
 
 counted as part of, 1549. 
 when may be exceeded, 453. 
 Precedence; date of commission, 668. 
 with staff officers, 689-695. 
 
 with staff officers in processions, courts-martial, 
 etc., 704. 
 Promotion by selection, 14.30-1434. 
 
 by selection; time for convening boards, 1.529. 
 if receiN-ing thanks of Congress, 736. 
 Retirement, voluntary, to create vacancies, 1265. 
 Sea ser\-ice prior to promotion, 1434. 
 Staff officers may exercise command over, 508, 1359. 
 Superintendent of Naval Observatory to be detailed 
 
 from, 1276, 1277. 
 Transfer to Construction Corps, 1408. 
 Vacancies, insufficient graduates from Naval Academy, 
 707. 
 UNE OF PROMOTION: 
 
 Retired officers withdra\^Ti from, 654, 655. 
 LIQUIDATED DAMAGES: 
 
 Forfeiture by delinquent contractor, 1111, 1113. 
 LIQUORS: 
 
 See Intoxicants. 
 
 Prohibition of alcoholic, near military camps and to 
 persons in uniform, etc., 1477, 1478. 
 
 LITIG.\TION: 
 
 Records of Na%'y Department desired for use in, 424. 
 Responsibility of officers for official acts, 350, 351. 
 LOANS: 
 
 See PuWic property. 
 
 Public moneys, prohibited, 109S, 1329, 1344. 
 Supply officers forbidden to make, 497. 
 LOG: 
 
 Punishments inflicted by commander of naval vessel 
 to be entered in, 1002. 
 LONDON FISCAL AGENTS: 
 
 Receipts for interest on account of the Navy Depart- 
 ment with; how credited, 1222. 
 LONGE\lTY: 
 
 See Length of service; Pay of Naval Establishment. 
 LOSS OF NUMBERS: 
 
 Continuing punishment; remission of, 1052. 
 Dental officers, considered to have lost service ac- 
 cordingly, 1421. 
 Failure to qualify for promotion, 729-734, 1463. 
 Officer sentenced to, pending promotion; effect of, 652. 
 Precedence; effect of, 691, 1429. 
 Remission of unexecuted portion of sentence, 669. 
 Substituted for dismissal, 1053. 
 LOSS OF PAT: 
 
 Summary court-martial may adjudge, 1007. 
 LOST: 
 
 See Effects; Vessels of the Navy. 
 Discharge; certificate in lieu of, 1203, 1204. 
 Property; charging value to responsible individual, 788. 
 LOTTERIES: 
 
 Importing tickets, etc., 1346, 1347. 
 Mailing of circulars, etc., 1341, 1342. 
 LOWEST BIDDER: 
 
 See Contracts. 
 LUMP SUai: 
 
 See Appropriatiom; Civil establishment; Pay of civil 
 establishment. 
 LU*N.ATIC: 
 
 Defined, 185. 
 I>IACHINERY: 
 
 Estimates and appropriations for, Na-^T, 1103. 
 Exchange of, in part paymet for like articles, 1474. 
 MACHINISTS: 
 
 See Warrant officers. 
 
 Appointment of, as warrant officers, 1268. 
 MACHINISTS' MATES: 
 
 Increase in pay of, 1495. 
 MAGAZINES: 
 
 Authority of law necessary for printing of, by Govern 
 
 ment, 1525. 
 Keeper of; office may be aboUshed, 533. 
 MAIL CLERKS: 
 
 See Navy mail clerks. 
 MAILS: 
 
 Free transmission, official business, penalty envelopes, 
 
 1181, 118.5, 1186, 1191, 1291, 1-345. 
 Illegal use of; espionage act, 1489, 1490. 
 Offenses relating to, 1337-1345. 
 MAIL VESSELS: 
 
 Commandeered for use as transports or cruisers, 1217. 
 Construction of, subject to approval by Secretary of the 
 
 Navy, 1216. 
 Detail of naval officers for duty on, 1217. 
 MAINTENANCE: 
 
 Appropriation for, Bureau of Yards and Docks; use of, 
 1530. 
 MAJOR GENERAL COMMANDANT: 
 Appointment of, 1392, 14G0. 
 
 Claims for reimbursement, lost or damaged private 
 property, 1492-1494. 
 
 1635 
 
INDEX. 
 
 MAJOR GENERAL COniAXDANT-Continued. 
 Counted as senior to colonel in making computations, 
 
 1409. 
 Filling of temporary vacancy, 929. 
 Major generals junior to, at all times, 1512. 
 Rank of, 928, 1.W2, 1.M2. 
 
 from which appointed, 9'29, UOO. 
 Retirement; active duty after, 929. 
 
 how vacancy temporarily filled, 21.5. 
 Status as additional number, 929, 1:492. 
 Teniu'e of office; appointment: retirement; additional 
 number in grade, etc., 1392. 
 MAJOR GENERALS: 
 
 Marine Corps: one permanent and one temporary au- 
 thorized, 1.512. 
 Rear admiraLs rank with, 662. 
 
 both upper and lower half, 665. 
 MAJORS: 
 
 Lieutenant commanders rank with, 662. 
 Number of, Marine Corps, 1458. 
 l\LiLTREATMEXT: 
 
 Of crew, by officers of vessel, 1351. 
 Of inhabitants on shore: pimishment. Navy, 985, 987. 
 Of personnel of merchant vessel under convoy, 985. 
 Of persons on prize; punishment, Na'V'y, 994. 
 Of subordinates; punishment for, in Navy, 984. 
 RLAXDA3IUS: 
 
 Hoard of Labor Employment, navy yards, subject to, 
 
 7S0. 
 Heads of departments subject to, 79. 
 Jurisdiction of coiu-ts over business of departments, 
 34.5-348. 
 removal of employee by head of department, 338. 
 Proceedings against accounting officers, 2.56, 257. 
 Sale of naval vessel; delivery to highest bidder, 778. 
 RLAXIFEST OIPEDIMExf: 
 
 Statute of limitations, 10.57, 10.59, 1060, 1062. 
 MAXIFOLD BLAXKS: 
 
 Public Printer to furnish to departments, 1278. 
 MAXXED: 
 
 Naval vessels to be manned as directed by President, 
 775. 
 MAXSLAUGHTER: 
 See Homicide. 
 Attempt to commit, 1.349. 
 Consular coiu-t proceeding against naval personnel 
 
 cliarged with, 224. 
 Definition and punishment, 1349. 
 Military guard charged with, 403. 
 Murder charged as, 67. 
 Place where committed, 1355. 
 Punishment for, Navy, 998. 
 MAXUALS: 
 
 Hydrographic Office to provide, for use by navigators, 
 387. 
 MANUFACTURERS: 
 
 Bids submitted by persons who are not, 1114. 
 MAPS: 
 
 Departmental, transferred to Library of Congress or 
 
 public library. District of Columbia, 1280. 
 Destroying, removing, stealing, or attempting to do 
 
 so, 1335, 13.36. 
 Estimates and appropriations for. Navy, 1103. 
 Preparation and sale of, Hydrographic Office, 390, 
 
 1236, 12.38. 
 Restrictions on embodying in annual reports, 1239. 
 MARINE BAND: 
 
 Band instruments; exchange of, 1474. 
 Competition with civilians 352, 1463, 1464. 
 Enlisted strength, Marine Corps, exclusive of, 14.58. 
 
 MARINE BAND-Continued. 
 Organization of, 920, 1463, 1464. 
 
 under personnel act, 1271. 
 Status and pay of, 951, 952, 1463, 1464. 
 MARINE CORPS: 
 
 See Allouanfcs: Army; Articles for the Oovernmenl 
 of the Xavy: A rticlcs of War; Enlisted men; Enlistments; 
 Major General Commandant; Marine Band; Officers 
 of the Marine Corps; Pay of Naval Establishment: Re- 
 tired enlisted men; Retired officers; Retirement. 
 Additional number officers, 1289, 1458. 
 major general commandant, 929, 1.392. 
 promotion to brigadier general, 1459. 
 war ser\'ice or extraordinary heroism, 1275, 1276, 
 1289. 
 Advancement of officers for conduct in battle or ex- 
 traordinary heroism, 921, 933, 12S9. 
 Appointment of officers: age and examination of candi- 
 dates, 1270. 
 dismissed midshipmen, 1281. 
 qualifications, 922, 925. 
 
 second lieutenants; from graduates of Naval .\.cad- 
 emy, IISS, 1189, 1270, 1281, 1392. 
 Army laws applicable to, 924, 940-943, 964, 965. 
 Assistant to Judge Advocate General detailed from, 
 
 1418. 
 Brevet commissions, 931-933. 
 Brigades, organization of, 936. 
 
 Pliilippine Islands; status and discipline of, 955. 
 Command over navy yards and vessels, 9-55. 
 
 when serving with Army, 443. 
 Cooperating with Army, 443. 
 
 supplies and transportation, 433. 
 Commissioned officers, number and grades of, 917, 918, 
 14.58. 
 number of; when may be exceeded, 921 . 
 Companies, organization of, 936. 
 Computations, number of officers: distribution in 
 rank, 1458. 
 final fractions, 920, 921, 1428, 1458. 
 major general commandant counted as senior to 
 colonel, 1459. 
 Court-martial jurisdiction over, 960, 961. 
 Date of rank on promotion, 931. 
 Deck courts may be ordered by officers of, 1308. 
 Deposit of sa\-ings, enlisted men, 951, 1295. 
 Detached, definition of, 954. 
 
 Detached service; authority of liigher officers of corps, 
 955. 
 with Army; command ofjoint forces, 443, 1544. 
 jurisdiction, 1544. 
 
 status and duties; decisions relating to, 443, 
 956-963. 
 Detachments, organization of, 936. 
 Duties; on shore, 9.55. 
 
 service on vessels, 954. 
 Enlisted men appointed as midsliipmen, 743. 
 detained in service under Na\-y laws, 557. 
 distribution of, 921. 
 
 may be substituted for landsmen, 955. 
 number of, 919, 920. 
 pay grades, 945. 
 
 ser\ing as firemen on vessels; pay, 878. 
 transferred to, from Army, 555. 
 transferred to and from Hospital Corps, 555, 567, 
 1420. 
 Enlistment allowance, 942. 
 bounty, 942. 
 
 governed by Na^"y laws, 545. 
 term of, 934, 1552. 
 
 1636 
 
INDEX. 
 
 MARINE CORPS— Continued. 
 
 Examinations for appointment, 1461. 
 promotion, 711, 924-927, 1270. 
 
 failure to pass reexamination; discharge, 1463. 
 loss of numbers for professional failure, 1463. 
 physical, 707, 70S, 1463. 
 Exchange of sewing machines, band instruments, 
 
 etc., 1474. 
 Exemption from arrest in certain cases, 935. 
 Extension of minority enlistments in, 1476. 
 Extra duty, enlisted men; restrictions on, 1315. 
 Funeral expenses, 906. 
 General provisions relating to, 917-971. 
 Grades of enlisted men; distribution in, 1548. 
 Gunnery sergeants; 950, 1271, 13S3. 
 Headquarters; status of; 191, 192, 331, 895, 957. 
 Homesteads; general pro\-isions relating to, 1083-1087. 
 Jurisdiction; embarked on naval vessels, 1442. 
 Length of service credited 1o officers of, 927, 928. 
 Major generals authorized; junior to major general 
 
 commandant, 1512. 
 Medals of honor and gratuity imder Navy law, 514, 
 
 1275. 
 Medical attendance, 904. 
 Medical personnel ser\'ing with, when detached for 
 
 service \\ith Army, 1421. 
 Midsliipmen appointed on graduation, 1188, 1189, 1221, 
 
 1222, 1270, 1281, 1392. 
 Mileage allowed officers traveling under orders without 
 
 troops, 1251. 
 Naval Academy graduates appointed to; commence- 
 ment of pay, 1221, 1222. 
 ser\'ice defined toinclude, 920, 921. 
 Na\T laws applicable to, 962, 967, 968. 
 Not a part of the Navy Department, 359. 
 Number of enlisted men, 919, 920, 1271, 1416, 1548. 
 distribution in grades, 1463, 1548. 
 during national emergency, 1463. 
 exclusive of those sentenced to discharge, 1463. 
 permanently authorized, 1548. 
 Number of officers and enlisted men increased, 1416. 
 officers; distribution in ranks, 917, 918, 1458. 
 pay clerks, 1515. 
 
 staff officers; appointment, details, etc., 1460. 
 warrant officers, 1462. 
 Oaths; officers authorized to administer, 1240. 
 
 taken by officers and men, 935. 
 Officers may liold civil appointments in Virgin Islands, 
 1075. 
 rates of pay, 940, 941. 
 Organization, 917-921. 
 
 companies, detachments, regiments and brigades, 
 
 936. 
 under personnel act, 1270, 1271. 
 Pay and allowances; general provisions relating to, 
 
 936-954. 
 Pay clerks, 918, 919. 
 pay of, 950. 
 
 title established; number, pay, etc., 1515. 
 Post laundries; operation of; reuse of appropriations, 
 
 1531. 
 Precedence of officers, 930, 931. 
 
 Private first class; rank established; number author- 
 ized, 1478. 
 I'robationary appointments, 925. 
 Promotion; Army laws extended to, 1219. 
 examinations, 711, 924-927, 1270, 1463. 
 for conduct in battle or heroism, 933. 
 laws and decisions relating to, 924-927, 1219. 
 Ust; promotions made from, according to seniority, 
 1461. 
 
 MARINE CORPS— Continued. 
 
 Promotion; physical examination, 707, 708, 1463. 
 
 physical incapacity; retired rank, 965. 
 Punishments infficted by commanding officer, 1002. 
 Rank in relation to the Army, 930, 931. 
 in relation to the Navy, 667. 
 retired officers, 964. 
 Senior staff officers, 1460. 
 Ratings and grades for enlisted men may be established 
 
 by Secretary of the Navy, 1552. 
 Rations, enlisted men, 9.53, 954, 1531. 
 
 officers not entitled, 954. 
 Reduction in number of officers; power of Congress, 921. 
 Regiments, organization of, 936. 
 Regulations; Army and Navy; subject to, 956, 961. 
 
 President to prescribe, 956. 
 Reimbursement for effects lost in naval service, 271, 
 
 1492-1494. 
 Retired enlisted men, 967, 1299. 
 officers; active duty, 966. 
 
 active duty; Navy laws govern, 659, 914, 967, 
 
 968. 
 and enlisted men; status of, 969, 970. 
 Retirement, civil war officers, 1282, 1293. 
 
 disability not incident to service, 968, 969. 
 enlisted men, 1299. 
 
 furlough pay; naval laws not applicable to, 621, 915. 
 Judge Advocate General, %8. 
 laws and decisions relating to, 963-971. 
 Sale of subsistence stores, etc., to personnel and civil- 
 ians, 1313, 1314, 1391, 1464. 
 to personnel of Army, Coast Guard and Public 
 Health Service, 1465, 1533. 
 Sea-duty pay, officers and enlisted men, 1408. 
 Second lieutenants; appointment of, 922, 925, 1188, 
 
 1189, 1270, 1281. 
 Secretary of the Navy; jurisdiction over, 956, 957. 
 Special qualifications, details, etc., enlisted men; pay, 
 
 947, 948. 
 Specialist ratings, enlisted men; pay, 942, 946. 
 Staff, 1460, 1461. 
 
 detail of senior officers away from headquarters, 
 
 784, 922. 
 duties of senior officers, 922. 
 organization under personnel act, 1271. 
 rank of officers, 929. 
 relation to the line, 921, 922. 
 Status; cooperating with Army, 961. 
 
 detached for service with Army, 443, 960. 
 normally part of Navy, 957-960. 
 Subsistence, enlisted men, 954. 
 Temporary officers transferred to permanent service, 
 
 1548. 
 Thanks of Congress; officer advanced for receiving, 933. 
 Training camps, 1464. 
 Transfer of enlisted men to and from hospital corps, 
 
 555, 567, 1420. 
 Warrant officers, 918, 919. 
 
 appointment, rank, pay, retirement, etc., 1462. 
 foreign shore duty pay, 1474. 
 number increased, 1479. 
 MARINE CORPS RESERVE: 
 
 Commissioned officers eUgible for membership on 
 
 comts-martial, 1494. 
 (ieneral provisions relating to, 1454, 1455. 
 National Naval Vohmteers transferred to, 1508, 1509. 
 Service in, credited to officers and enlisted men of 
 
 regular service, 1529, 1530. 
 Transfer of officers to permanent Marine Corps, 1.548. 
 MARINE DISASTER: 
 Construed, 272. 
 
 1637 
 
INDEX. 
 
 MARINE ENGINES: 
 
 Naval vessels; use of patented articles connected with, 
 770. ■ 
 MARINE GUNNERS: 
 
 Appointment as warrant oflicers, Marine Corps, 1462. 
 MARINE PARADES: 
 
 UoRulations: onforcemcnt of by head of any depart- 
 ment, 1300, 1301. 
 MARINERS: 
 
 Hestitute seamen, 575. 
 
 Merchant seamen confined as prisoners on naval ves- 
 sels, 576. 
 
 Naval oflicers may exercise consular powers in relation 
 to, 575. 
 
 Notices to; publication by Hydrographic Office; num- 
 ber of copies, 1238. 
 MARINE SCHOOLS: 
 
 See Nautical .vc/ioo/.t. 
 MARITIME JURISDICTION: 
 
 Crimes committed within, 1:?4S-1351. 
 
 Judicial power with relation to, 105. 
 MARKSMANSHIP: 
 
 Director of Civilian; appointment of marine officer 
 as, 1465. 
 MARRIAGES: 
 
 Naval vessels; performing on board, 575. 
 MARRIED WOMEN: 
 
 Sureties on bonds, 484, 485. 
 MARSHALS: 
 
 Attorney General to supervise and direct, 323. 
 MARTIAL LAW: 
 
 Decisions relating to, 44-47. 
 
 Insurrections; employment of naval forces, 1169. 
 MARYLAND: 
 
 Laws relating to United States jurisdiction in, 293-294. 
 MASCULINE: 
 
 Includes females, in Federal statutes, 185, 1355. 
 MASTER AT ARMS : 
 
 Refusing to receive prisoners, or suffering to escape; 
 punishment, Navy, 985. 
 MASTER RIGGER: 
 
 Service on examining boards concerning repairs to 
 vessels, 777. 
 MASTERS: 
 
 Grade of in Navy, changed to lieutenant (junior grade), 
 448, 1190. 
 
 Rank with first lieutenant, 662. 
 MASTER SAILMAKER: 
 
 Service on boards concerning repairs to vessels, 777. 
 MASTER WORKMEN: 
 
 Navy yards: appointment of, 779 , 780. 
 
 serv'ice on examining boards concerning repairs to 
 vessels, 776. 
 MATERIAL: 
 
 See Public property. 
 
 Sale of naval, 777-779, 1190. 
 MATERIAL MEN: 
 
 Protection of; contracts for public works, 1227, 1228. 
 MATES: 
 
 Appointment as Navy mail clerks, 522. 
 
 Deposits, enlisted men rated as, 524. 
 
 Enlisted men rated as, 515. 
 
 General provisions relating to, 515-525. 
 
 Honorable discharge gratuity and continuous ser\'ice 
 pay, 891. 
 
 Pay and allowances of, 521, 522, 792, 800, 864. 
 
 Quarters; same commutation as second lieutenants, 
 097, 827, 1275. 
 
 Rating of enlisted man as, does not discharge from 
 enlistment, 523. 
 
 Rations allowed to, 897. 
 
 MATES— Continued. 
 
 Retired; honorable discharge gratuity and continuous 
 
 service pay, 890. 
 Retirement of, 519-521. 
 Revocation of appointment, 522. 
 MATHEMATICS: 
 
 See P Toft ssors of mcUhematics. 
 MAYHEM: 
 
 Definition and punishment, 1350. 
 MAYOR: 
 
 Retired officer may accept position of, 1075. 
 IWEASURERS: 
 
 Fuel wood purchased for public service, 1110. 
 Office of measurer and inspector of timber may be 
 abolished, 533. 
 3IEATS: 
 
 Preserved, purchase of for Navy, 1115. 
 MECHANICS: 
 
 See Civil cxtahlishmcnt; Pay of civil establishment. 
 Eight-hour law appUcable to, 1117, 1219, 1220, 1370, 
 1371, 1474. 
 MEDALS: 
 
 Appropriation for cost of, 1522. 
 
 Bar or other insignia in lieu of second and succeeding 
 
 medals, 1521, 1522. 
 Conduct for which awarded, 1521. 
 Death; award after, 1522. 
 
 Duplicates authorized where originals lost, 1282. 
 Enlisted men; distinguished conduct in battle; ex- 
 traordinary heroism, 512, 1275. 
 gratuity allowed, 512, 865, 1275, 1521, 1522. 
 rosettes and ribbons, 1262. 
 Entire ser\ice prior to award and after distinguished 
 
 act must be honorable, 1522. 
 Flag officers may Ise empowered to award Navy 
 
 crosses, 1522. 
 Foreign; acceptance and wearing of, 76, 1516. 
 tendered through State Department, 1187. 
 wearing of by officers, 76, 1187, 1516. 
 General provisions relating to medals and crosses, 512- 
 
 515, 1521-1523. 
 Good conduct; additional pay, enlisted men, 866. 
 Interchanged between United States and foreign 
 
 military forces, 1516, 1517. 
 Medal-of-honor roll. Navy Department; special pen- 
 sion, 1410. 
 Officers of Navy, Marine Corps or Coast Guard, 1402. 
 Replacement of lost medals, crosses and bars, 1522. 
 Time for award of medals and crosses, 1522. 
 MEDICAL ATTENDANCE: 
 
 Dental treatment, court-martial prisoners, 903. 
 
 Does not include dental treatment, 904. 
 
 Naval persoimel, 902-904. 
 
 Not pay, but an allowance, 440. 
 
 Persons entitled to; deductions for naval hospita 
 
 fund, 904. 
 Retired officers, 440. 
 
 Sick or disabled men on naval vessels, 995. 
 Specialist's expenses, 904. 
 3IEDICAL CORPS: 
 
 See Dental Corps; Hospital Corps; Retirement; Retired 
 
 officers; Staff officers. 
 Acting assistant surgeons; number, rank, and pay, 
 527, 529, 675, 1184, 1261. 
 retirement, 528. 
 Additional compensation for professional ser\'ices to 
 
 Federal prisoners, 459. 
 Advancement in rank, 1426, 1481, 1513. 
 Appointments in; age requirements, 1427. 
 
 how made, 461. 
 Assistant surgeons; quaUfications for appointment, 462. 
 
 1638 
 
INDEX. 
 
 MEDICAL CORPS— Continued. 
 
 Assistant surgeons; qualifications for promotion, 464. 
 
 Assistant surgeons, rank, 1273, 1426. 
 
 Autopsies; authority to perform, 460, 461. 
 
 Command, hospital ships, 703, 785. 
 
 Command, hospital ships or hospitals: convening 
 
 courts and inflicting punishments, 1441. 
 Command; relative rank not to confer right of, 702. 
 Communicable diseases: cooperation to suppress, 1520. 
 Consultations to be held in fleets and squadrons, 466. 
 Detail of officer as assistant to Bureau of Medicine and 
 Surgery, 466. 
 on advisory board. Public Health Service, 1279. 
 to Red Cross, 1436, 1437. 
 
 with marines detached for service with Army; 
 jurisdiction, 1421. 
 Disease; injections to prevent: naval persoimel must 
 
 submit to, 458. 
 Distilled spirits on vessels, imder control of medical 
 
 officers, 989. 
 Distribution of officers in grades, 1427. 
 General provisions relating to, 455r466. 
 Hospital ships ; command, 703, 785, 1441. 
 Number of acting assistant surgeons, 1261. 
 of officers, 455, 456, 1425, 1436, 1437. 
 and enlisted men increased, 1416. 
 Nurse Corps, female; general provisions, 1303, 1304. 
 Officer convicted of vulgar and indecent acts; unfitted 
 
 for duties, 5S3. 
 Organization of, 455. 
 Passed assistant surgeons, rank, 675, 676. 
 status, 457, 458. 
 to have commissions, 1251. 
 Precedence of officers, 1426. 
 
 not disturbed byact of August 29, 1916; 1480, 1481. 
 Private practice by members of, 459, 460. 
 Promotions in, 464, 465. 
 
 examinations, 1251, 1481, 1482. 
 Rank, acting assistant surgeons, 529, 1261. 
 
 and precedence of assistant surgeons, 1273, 1426, 
 
 1480. 
 of officers in, 673-676. 
 distribution, 1427. 
 Reports to State authorities, 49, 50, 461. 
 Stores; procurement of for fleets and squadrons, 466. 
 Surgeon of ship; duties relating to health of crew, 995. 
 
 to report as to health of accused persons, 1009. 
 Surgeon of the fleet, appointment, 466. 
 duties, 466. 
 MEDICAL DIRECTORS: 
 Pay, 792, 801. 
 Rank, 673, 1427. 
 MEDICAL EXAJVnNERS; 
 See Boards. 
 
 Boards convened on foreign stations, 707, 1472. 
 MEDICAL EXPERTS: 
 
 Testimony of, 611. 
 MEDICAL INSPECTORS: 
 Pay, 792, 801. 
 Rank, 673, 1427. 
 MEDICAL RESERVE CORPS: 
 
 Army; reinstatement of civil employees after service 
 
 in, 1464. 
 Na\'y; laws relating to repealed, 1509. 
 MEDICAL SUPPLIES: 
 
 DistiOed spirits on naval vessels, 989. 
 Loan to Red Cross, 1394, 1395. 
 Procurement of for fleets and squadrons, 466. 
 Purchase of in excess of app opriations, 1116, 1288. 
 MEDICAL SURVEY: 
 
 Discharge on; transportation home, 875, 1274, 1275. 
 
 MEDICAL TREATMENT: 
 
 Death resulting from; line of duty, 613. 
 Enlisted man; enlistment expired, 559. 
 Enlisted man, furloughed wrthout pay, 537, 903. 
 Naval personnel required to submit to, 458. 
 Persons not in Navy, 459, 460, 1468. 
 Records to be kept of, 460. 
 Refusal of officer to submit to, 615, 616. 
 Surgical operations; whether naval personnelrequire 
 to undergo, 458, 459. 
 MEDICINE AND SURGERY: 
 
 See Bureaus; Chiefs nf bureaus; Surgeon General. 
 MEDICINES: 
 
 See Medical attendance; Medical supplies. 
 Allowance of, 902-904 . 
 Purchase without advertising, 1113. 
 MEETINGS: 
 
 Expenses of public officers attending societies and 
 associations, 1371. 
 MEMBERSHIP: 
 
 Public officers in societies or associations, 1371. 
 MEMBERS OF CONGRESS: 
 
 Accepting fee as counsel before courts-martial, depart- 
 ments, etc., 13:33. 
 Advertising names of, by firms or corporations, etc., 
 
 practising before departments, 1411. 
 Appointments to office; accepting consideration for 
 
 procuring, 1332, i:333. 
 Board of \'isitors. Naval Academy selected from, 1458. 
 Civil employees may petition, or furnish information 
 
 to, etc., 1388. 
 Contracts; not to be interested in, 1118, 1333, 1.334. 
 De facto officers; midshipmen appointed on recom- 
 mendation of, 747. 
 Holding other offices, 34. 
 Retired officer serving as, 34. 
 Subpoenaed by court-martial, 33. 
 MEMORIALS: 
 
 Erection in Arlington Memorial Amphitheater, 1559. 
 Naval Academy Chapel, use for, restricted, 1314, 1315. 
 aiENACES: 
 
 Punishment for using toward other persons in Xa\'y, 
 984. 
 MENTAL: 
 
 Defined; moral and professional distinguished, 712-721. 
 Disability; retirement for, 593. 
 Examination for promotion, 711-721. 
 MERCHANDISE: 
 Definition of, 1408. 
 Transporting on naval vessel, 985. 
 MERCHANT MARINE: 
 
 Charts furnished by Hydrographic Office, Na\-y De- 
 partment, 3S7. 
 Commandeering vessels for use as transports or cruis- 
 ers, 1218. 
 Confinement of seamen as prisoners on naval vessels, 
 
 576. 
 Development of, for service as a naval auxiliary, 15.54, 
 1555. 
 jurisdiction of Shipping Board, 1467. 
 
 Licenses required of naval officers serving as master 
 of vessel, 11.35. 
 
 Maltreating personnel of vessels under convoy, 985. 
 
 Naval vessels to protect against piracy, 1130. 
 MERCY: 
 
 Court-martiai members may recommend, 1034. 
 MERIDIANS, 391. 
 MESS ATTENDANTS: 
 
 Pay, 864. 
 
 1639 
 
INDEX. 
 
 MESSENGERS: 
 
 Soe Civil (stablishmeni; Pay of civil cstablishmenl. 
 Appointment, number, pay, etc., 204, 20'), 209. 
 MESSES: 
 
 Commutation of rations paid to, 902, 1279. 
 
 raise reports l)y treasurer of; held not to be fraud 
 
 against United States, 902. 
 P'lmds of; whether public money, 232, 902. 
 Ciarbage, sale of; proceeds public money, 232, 899. 
 Officers; on shore; messmen not allowed, 829. 
 MIDSHIPMEN': 
 
 See Appointnunls; Naval Academy. 
 Academic course, 762-765, 1369. 
 
 reinstated; not required to repeat, 7G4. 
 Age requirements, 1507. 
 
 appointments from enlisted men, 1472, 1473. 
 can not be waived, 750. 
 Aliens appointed as, 571. 
 Appointment; date effective, 746. 
 final as to qualifications, 750. 
 from enlisted men, Coast Guard; eligibility, 743. 
 Marine Corps, 743. 
 Navy, 743, 744. 
 
 Secretary of the Na^-y authorized to make, 
 1472, 1473, 1502. 
 from Naval Reserv-e Force, 744, 1502. 
 from Porto Rico, 742, 743, 1281. 
 illegal ; appropriations not applied to support of,751. 
 on graduation, 76.5-768, IISS, 1189, 1392. 
 
 commissioned effective from date of gradua- 
 tion, 1479. 
 discretion as to commissioning, 767. 
 Filipinos not entitled to conmiissions in Navy, 
 
 1424. 
 pay, commencement of, 830, 1221, 1222, 1479. 
 "subject to examination," 768. 
 to be ensigns, 766, 1193, 1392. 
 to Marine Corps, 766, 1270. 
 to Marine Corps or staff corps, 766, 1392. 
 vacancies required, 767. 
 qualifications of candidates, 749. 
 recommendation of Senators and Representatives, 
 
 744-749, 1294, 1295. 
 recommendation of Senators and Representatives 
 
 advisory only, 745. 
 residence of candidates, 750, 751, 1294, 1295. 
 students from foreign countries, 743, 1294. 
 
 Philippine Islands, 743, 1424. 
 to Marine Corps, after failure to graduate, 1462. 
 to Naval Reser\-e Force, former midshipmen, 1445, 
 1448. 
 Cadet engineers, 768-770. 
 
 Candidate not qualified; second recommendation, 749- 
 Clothing, procurement of, 770. 
 Court-martial of, 751-761. 
 
 courts convened by Secretary of the Navy, 1248. 
 for hazing, 1178, 1286, 1287. 
 Deficient on examination; reexamination and specia] 
 instruction required, 1555, 1556. 
 status of, 751-755. 
 Designation changed to ensign, junior grade, 1190, 1191. 
 Diploma; certificate of graduation given on discharge 
 
 of surplus, 1188, 1189. 
 Discharge for deficiency restricted, 1555, 1556. 
 
 of surplus graduates with one year's sea pay, 1188, 
 1189. 
 Dismissal, 752, 755-760. 
 effect of, 761. 
 
 eligibility for reappointment, 582. 
 for hazing; effect of, 1178, 1281. 
 for single act of hazing; court-martial required, 
 1286. 
 
 MIDSHIPMEN-Continued. 
 
 Dismissal, procedure to be followed, 1286. 
 
 without court-martial; exception, 1286. 
 Dropped for deficiency, 751-755. 
 
 Enlisted men appointed as, 743, 744, 1472, 1473, 1502. 
 Examination; final graduating examination defined, 
 687. 
 
 for commission; effect of deficiency, 754, 755. 
 
 graduating; appointments if successful, 765. 
 
 of candidates, 748. 
 Foreign countries; students from, 743, 1294. 
 General provisions relating to, 738-771. 
 Grade of, changed to ensign, 448. 
 Graduates, surplus, discharged with one year's sea 
 
 pay, 1188. 
 Graduation, appointments on; general provisions relat- 
 ing to, 765-768, 1188, 1189, 1193, 1270, 1392. 
 
 certificates given on discharge of surplus, 1188, 1 189. 
 
 date of, 688. 
 
 defined, 687. 
 Hazing, defined, 1287. 
 
 punishment for, 752, 757-759, 1178, 1286, 1287. 
 
 rules to prevent, 1281. 
 Imprisonment for brutal or cruel hazing, 1287. - 
 Instruction of, as to nature and effects of alcoholic 
 
 drinks, etc., 1194, 1195. 
 Leave of absence; pay, 764. 
 Medical attendance, 903. 
 Mileage for travel abroad, 667. 
 
 Naval cadets substituted for cadet midshipmen and 
 cadet engineers, 1188. 
 
 title changed to midshipmen, 1279. 
 Nomination, candidates and alternates, 744-749, 1294, 
 1295. 
 
 date of, 747. 
 
 second recommendation, 749. 
 Number of, 741-744, 1472, 1473, 1502. 
 
 graduates insufficient to fill vacancies, 767. 
 Oath of office, 748. 
 
 Obligation assumed to serve in Navy, 746, 747. 
 Official Register of the United States to contain names 
 
 and information concerning, 12.36. 
 Pay, 792, 799, 1302. 
 
 when commissioned as officers, 830, 1221, 1222, 1479. 
 PhiUppiae Islands, students from, 743, 1424. 
 Porto Rico, appointments from, 742, 743, 1281. 
 President to select candidates from District of Columbia 
 
 and at large, 1294, 1295. 
 Promotion on graduation, general provisions relating 
 
 to, 765-768, 1188, 1189, 1193, 1270, 1392. 
 Qualifications; residence, age, etc., 748, 750, 751, 1294, 
 
 1472, 1473, 1.507. 
 Rank and precedence on graduation, 687, 765. 
 
 no correspondiag rank in Army, 667. 
 Rations and commutation allowed, 893, 1194. 
 Reinstatement, 582, 747, 749, 761, 762. 
 
 after dismissal for hazing, 1178, 1281. 
 
 not required to repeat course, 764. 
 
 qualifications same as on original appointment, 750. 
 Residence of candidates, 750, 751, 1294, 1295. 
 Resignations; revocation of acceptance, 747. 
 Revocation of appointment, 747. 
 Sea service, 1369. 
 Secretary of the Navy appoints, 745. 
 
 appoints, if nomination not made, 1294, 1295. 
 
 may prescribe special course of study for, 1 189. 
 Service as, not credited to Army officers, 1388. 
 
 or to naval officers, 1390. 
 Special course of study and training at home or abroad 
 
 authorized, 1189. 
 Status of, 740, 741, 755-757, 764, 903. 
 
 1640 
 
INDEX. 
 
 MID SHIPMEN— Continued . 
 
 Status of, after graduation, pending appointment, 768. 
 Students from foreign countries, 743, 1294. 
 
 Piiilippine Islands, 743, 1424. 
 Studies; ethics, Englisli; Spanish and drawing, 771. 
 
 not to be pursued on Sunday, 770. 
 Surplus graduates honorably discharged with one 
 
 year's sea pay, 1188, 1189. 
 Suspension, court-martial sentence; confirmation by 
 President required. 1248. 
 without pay, 755. 
 
 not entitled to allowances, 828. 
 Title of naval cadet changed to, 1279. 
 Uniforms, etc., sold to, at cost, 1J)21. 
 MIDSHIPMEN'S COMIVUSSARY FUND: 
 
 Payments to servants from, 771, 1391. 
 MIDSHIP3IEN'S MESS: 
 
 Funds held to be public money, 232. 
 ailDSHIPMEN'S STORE: 
 
 Accumulated profits; public money, 232. 
 Fund, 770, 1304. 
 3ULEAGE: 
 
 See Travel; Transportation. 
 
 Actual expenses; Government officers attending as 
 
 witnesses, 413. 
 Books paid for in advance of travel, 1282. 
 Discharged enlisted men, 874-876, 1415. 
 Exchange of stations; voluntary; officers not entitled 
 
 to, 844. 
 General provisions relating to, 840-846. 
 Government transportation furnished; no mileage 
 
 paid, 843, 1395. 
 Leave of absence; officer traveling to and from, 843, 
 
 844. 
 Marine Corps, 949. 
 
 officers traveling under orders without troops, 
 1251. 
 Midshipmen; travel abroad, 667. 
 Naval officers; abroad; actual expenses in lieu of, 1189. 
 amount allowed, 1180. 
 in the United States, 1272, 1273, 1274. 
 traveling on vessel during trial trip, 844. 
 Officers; can not be deprived of statutoiy allowance, 
 844, 845. 
 who are, within meaning of law, 846. 
 Repeated travel; actual expenses in lieu of, 1272, 
 
 1273, 1274. 
 Resignation of officer; travel home, 844. 
 Retired officer ordered before court-martial for trial, 
 
 658. 
 Shortest usually traveled route, 845, 1315. 
 Travel by permission, 844. 
 Witnesses, 410. 
 
 before naval courts, 1310. 
 no testimony given, 415. 
 IVOLITART: 
 
 Defined to include Navy, 76, 579, 1517. 
 Regulations; President to prescribe for Marine Corps, 
 956. 
 MIUTARY ACADEMY: 
 
 Cadet faihng to graduate; appointment to Marine 
 
 Corps restricted, 1462. 
 Service at, not credited to naval officers, 1390. 
 anLITARY COMaiAND: 
 
 Construction officers may exercise in line or other 
 
 staff corps, 508. 
 Engineer officers; succession on shore, 1435. 
 Line officers detailed under staff officers, 1359. 
 Medical officers; hospital ships, 703, 785. 
 Naval Reserve Force; restrictions on, 1453, 1511. 
 Naval vessels and squadrons, 772-774, 775, 955, 1277. 
 
 MILITARY COMMAND— Continued. 
 
 Staff officers; elloet of relative rank, 702. 
 rank not to confer, 1265. 
 
 Warrant officers and commissioned wsrrant officers, 
 1267. 
 MILITARY COMMANDER: 
 
 Seizure of private property, 40. 
 MILITARY COMRUSSIONS: 
 
 Jurisdiction of, 46, 47. 
 MILITARY DUTIES: 
 
 Not compatible with grades of staff officers, 507. 
 MILITARY FORCES: 
 
 See Naval forces. 
 
 Coast Guard to constitute part of, 1400. 
 
 Definition of, 1496. 
 MILITARY GOVERNMENT: 
 
 Conquered territory, 41. 
 
 Conquered territory, after war, 109. 
 
 Constitution provides for, 08. 
 
 Guam and Tutuila, Samoa, 109. 
 
 Power of military commander, 110. 
 MILITARY INSTITUTES: 
 
 Detail ofnaval officers to, 435. 
 MILITARY QUESTIONS: 
 
 Duty and command are, 932. 
 MILITARY RESERVATIONS: 
 
 See Reservations. 
 
 State laws applicable in; criminal code, 135L 
 
 Unlawfully entering, 1327. 
 MILITARY SCHOOLS: 
 
 Loan ofnaval equipment to, 1277, 1359. 
 MILITARY SERVICE: 
 
 Army and Navy are branches of, 579. 
 
 Compulsory during war, 47. 
 
 Enhsted men transferred from, to Navy or Marine 
 Corps, 555. 
 
 Jurisdiction over, during war, 42. 
 
 Money or property intended for military or naval 
 service; offenses against, 990, 1325. 
 MILITARY SOCIETIES: 
 
 Badges of, worn by naval personnel, 1216, 1224, 1273, 
 1280, 1299. 
 
 Loan or gift of condemned ordinance, etc., to, 1249. 
 MILITIA: 
 
 See National Guard; Naval Militia. 
 
 Employment of, to suppress insurrection, 1169. 
 MINES: 
 
 See Alaska'. 
 
 Secretary of the Interior; supervision of, .395. 
 aUNISTERIAL: 
 
 Secretary of the Navy's duties are not, 344, 345. 
 MINORS: 
 
 See Enlislments; Fraudulent enlistment. 
 
 Eligible to sit as member of court-martial, 1018. 
 
 Enlistment, 540. 
 
 consent of parents or guardians, 544, .545, 548-551. 
 discharged on parent's request, 1402, 1403. 
 guardiansliip papers prepared by register of wills, 
 
 D.C., 1217. 
 under 14 years, prohibited, 551. 
 
 Enrollment in Naval Reserve Force; ages; consent of 
 parents, 1546. 
 
 Held to be enlisted men, 536, 545. 
 
 Homestead laws; privileges of, 1083. 
 
 Unlawful enlistment of; penalty for recruiting officer, 
 994. 
 MISAPPROPRIATION: 
 
 Money or properly intended for naval service, 990, 
 1325. 
 
 Naval personnel; public or private money or property, 
 1170. 
 
 1641 
 
INDEX. 
 
 >nSCELLAXEOUS RECEIPTS: 
 
 Coudomncd Navy clothing; proceeds of sales revert 
 
 to appropriations, 1 108. 
 Garbage; proceeds of sales, 2:!2, 899. 
 Hydrographic Oflice publicatious; proceeds covered 
 
 into Treasury as, 1543. 
 Leases of naval lands; proceeds, 1419. 
 
 naval petroleum reserves; proceeds credited to, 
 1533. 
 Naval Homo property; proceeds from sales, etc., 
 
 credited to naval pension fimd, 1472. 
 Naval vessels; proceeds from sales, 1457. 
 Operation of post laundries; proceeds credited to ap- 
 propriations from which maintained, 1531. 
 Proceeds of sales to bo covered into Treasury as, 
 
 1095. 
 Sales of Government supplies between departments, 
 1526. 
 RUSCONDUCT: 
 
 Absence due to; pay during, 825, 1436. 
 Death not result of; payment of gratuity, naval per- 
 sonnel, 1546, 1547. 
 Evidence of, before promotion board, 719. 
 Investigation of, 217. 
 Naval officer not to be retired for, 622. 
 
 unfit for promotion by reason of; discharge; pay, 
 11 S9. 
 MISDEMEANORS: 
 Definition of, 1355. 
 MISPRISION: 
 
 Dismissal of naval officers for failing to report offenses 
 
 by midshipmen, 1287. 
 Failing to give notice of deserters to naval superior, 985, 
 to inform commanding officer of intended mutiny, 
 
 punishment for, 979. 
 to report offenses to civil or military authority, 
 
 1336, 1337. 
 to use efforts to bring offenders to punishment. 
 Navy, 985. 
 Intercourse with enemy; failing to inform superior 
 
 officer of; punishment. Navy, 979. 
 Treason; definition and punishment, 1317. 
 MISREPRESENTATION: 
 
 Sureties induced to execute bonds, 485. 
 MISSING VESSELS: 
 
 See Vessels of the Navy. 
 IVnSTAKE: 
 
 See Errors. 
 MISTAKE OP FACT: 
 
 Reopening of accounts for, 248-249. 
 Responsibility of officer making, 350. 
 MISTAKE OF LAW: 
 
 Marine officer overpaid; right of Government to re- 
 cover, 951. 
 Payments made tay, 245. 
 Reopening of accounts for, 249-256. 
 MITIGATION: 
 
 Sentences imposed on Coast Guard personnel, 1455. 
 Sentences of courts-martial, 85. 
 by Secretary of the Navy, 1309. 
 deck courts, 1308. 
 general courts-martial, 1051-1055. 
 summary courts-martial, 1009. 
 MIXED DUTY: 
 
 Which is paramount, 881. 
 MODEL 3IAKERS: 
 
 Emplojrment from naval appropriations restricted, 
 1281. 
 MODELS: 
 
 Estimates and appropriations for. Navy, 1103. 
 
 MODEL TANK: 
 
 Navy yard, Washington, D. C, use of, 1250. 
 MOLDER: 
 
 Ratings established in Navy, 1495. 
 MONEY: 
 
 Sec Public moneys. 
 MONEY ORDERS: 
 
 Forging, 1343, 1344. 
 
 Issuing unpaid for, 1340. 
 MONEY REQUISITIONS: 
 
 Appropriations drawn from Treasury on, 1104. 
 MONITORS; 
 
 See Vessels of the Navy. 
 
 Naming of, 1201, 1262, 1304, 1305. 
 MONTH: 
 
 Division of, for computing compensation, 1297. 
 
 Thirty-first day, pay of civil employees for, 207. 
 MORAL: 
 
 Cliaracter of candidates for civil employment at navy 
 yards, 780. 
 
 Examination for promotion, 711-721. 
 
 Unfitness for promotion, .597. 
 
 amount of pay on discharge, 630. 
 
 naval officer to be discharged for, 623, 624. 
 
 Navy; discharge; pay, 1189. 
 
 Unfitness; what constitutes, 624-627. 
 MOTION PICTURES: 
 
 Films of prize fights, 1371, 1372. 
 MOTIVE: 
 
 As affecting responsibility of officers for official aets,350. 
 MOTOR BOATS: 
 
 Owners of may enroll in Naval Coast Defense Re- 
 serve, 14.53. 
 
 Regulation of, on navigable waters, 1356-1358. 
 MOTOR VEHICLES: 
 
 See Vehicles. 
 MOUNTED PAY: 
 
 Officers of Marine Corps, 940. 
 MOURNING: 
 
 Draping public buildings prohibited, 1220. 
 MUNICIPALITIES: 
 
 Lands leased from, for Navy; improvements to become 
 property of lessor, 1508. 
 
 Loan or gift to, of naval ordnance, etc., 1249. 
 MURDER: 
 
 See Homicide; Manslaughter. 
 
 Assault with intent to commit, 1349. 
 
 Attempt to commit, 1349. 
 
 Definition and punishment, 1349. 
 
 Execution of subordinates without trial; jurisdiction of 
 civil courts, 982, 983. 
 
 Jurisdiction of naval court-martial to punish, 982. 
 
 Mailing matter tending to incite, 1340, 1341. 
 
 Place where committed, 1355. 
 
 Trial by court-martial as manslaughter, 67. 
 MUSTER: 
 
 Falsely making or signing, etc., 985. 
 
 Into the service; place of; mileage on discharge, 876. 
 MUTINOUS: 
 
 Assembly; punishment for. Navy, 979. 
 
 Words; punishment for uttering, in Navy, 984. 
 MUTINY: 
 
 Committing or inciting on board vessels, 1351, 1352. 
 
 Homicide committed in suppressing, 57. 
 
 Punishment for, Navy, 979. 
 NAMES: 
 
 See Vessels of the Navy. 
 
 Assumed; discharge certificates and orders accepting 
 resignations in true name, 1379, 1380. 
 
 Monitors, 1261, 1262, 1304, 1305. 
 
 1642 
 
INDEX. 
 
 NAMES— Continued. 
 Naval vessels, 774. 
 Parties to bonds, 482, 483. 
 NARCOTICS: 
 
 Midshipmen to be instructed as to nature and effects 
 of, 1194, 1195. 
 NATIONAL CEMETERIES: 
 
 Burial in, 1163. 
 NATIONAL DEFENSE: 
 
 Council of; creation, duties, etc., 1465, 1466. 
 Offenses relating to, 1327, 1482. 
 NATIONAL ENSIGN: 
 
 Pennant of Naval Reserve Force not to be flown in 
 lieu of, 1448. 
 NATIONAL FORESTS: 
 
 Use of earth, stone, and timber by Navy, 1409. 
 NATIONAL GUARD: 
 
 Appointment of officers from naval and reserve officers, 
 
 etc., 1412. 
 Leave of absence, civil employees belonging to, 1412. 
 Reinstatement of civU employees after service in, 
 1484. 
 NATION.^L HOME FOR DISABLED VOLUNTEER 
 SOLDIERS: 
 Admission to, 1400, 1401. 
 NATIONAL NAVAL VOLUNTEERS: 
 Laws relating to, repealed, 1455, 1508. 
 Members transferred to Naval Reser\-e Force, 1508, 1509. 
 NATION^IL RIFLE ASSOCI.ATION: 
 Sale of guns and ammunition to, 1516. 
 NATIONAL TROPHT: 
 
 Contested for, by naval personnel, 1413. 
 NATIVES: 
 
 See Inhabitants. 
 
 Insular possessions, naturalization of, 114. 
 N ATUR ALIZ ATI ON : 
 
 Aliens in the naval service, etc., 140, 1505-1507. 
 Deserter in time of war; prohibited, 1077, 1078. 
 Discharged enlisted men, 567, 568. 
 Filipinos, Porto Ricans etc. 1506. 
 Indians, 137. 
 Japanese, 139. 
 
 Natives of insular possessions, 114. 
 Naval Reserve Force, 1443. 
 Power of Congress, 36. 
 NAUTICAL ALMANAC: 
 
 Director of; recommendation of board of visitors. Naval 
 
 Observatory, as to flUing vacancy, 1276. 
 Exchange of data with foreign offices; use of employees, 
 
 etc., 1382, 1383. 
 General provisions relating to, 391-393. 
 Number of copies to be printed, 1234, 1278. 
 Pay of officer in charge of, 391. 
 Sale of, by Navy Department, 1278. 
 disposal of proceeds, 1234, 1235. 
 NAUTICAL BOOKS: 
 
 Preparation and sale of, Hydrographic Office, 390, 1236, 
 1237. 
 NAUTICAL SCHOOL: 
 
 See Marine schools: Military schools. 
 Detail of enlisted men to, Philippines, 1297. 
 
 naval officers for duty in, 1368. 
 Loan of naval equipment to military schools, 1277. 
 naval vessels and equipment to, 1367, 1368. 
 to, in PhiUppines, 1297. 
 NAVAL ACADE>IY: 
 See Midshipmtn. 
 Academic Board, authority of, 751, 753, 754. 
 
 course, 762-765, 1369. 
 Academic officers; duty to report offenses by midship- 
 men, 1287. 
 
 NAVAL ACADEMY— Continued. 
 
 Accounts relating to, audited by Auditor for the Navy 
 
 Department, 1224. 
 Appropriations, how applied, 751. 
 Assistant profassors; duty to report offenses by mid- 
 shipmen, 1287. 
 Band; competition with civilians, 1304, 1411, 1412. 
 organization, etc., 1355, 1356, 1530. 
 pay of, 818, 891, 1355, 1356, 1.530. 
 retirement of members, 1355, 1530. 
 Board of inquiry to determine facts, proposed dismissal 
 of midshipman, 1286. 
 Visitors; appointment, duties, expenses, etc., 1197, 
 1458. 
 Cadet engineers, 768-770. 
 Cadet officers, duty to report offenses by midshipmen, 
 
 1287. 
 Chapel: use of, for memorials, 1314, 1315. 
 Civilian instructors dismissed for failing to report 
 
 offenses, 12S7. 
 Course at, to be four years, 1369. 
 
 special, may be prescribed by Secretary of the 
 Navy, 1189. 
 Court-martial for hazing; how convened, constituted, 
 etc., 1178, 1286, 1287. 
 for trial of midshipmen reviewed by Superin- 
 tendent, 1248. 
 necessary to dismiss midshipman for single act of 
 
 hazmg, 1286. 
 of officers for failing to report offenses by midship- 
 men, 1287. 
 Dauy, 770, 771. 
 Date of graduation from, 688. 
 ~ Dental surgeon at, 1422. 
 
 Dismissal of civilian instructor for failing to report mid- 
 shipman offenses^ 1287. 
 of officers at, for failing to report midshipman 
 offenses, 1287. 
 Ethics, English, Spanish and drawing, professors of, 771 . 
 Engineers graduated from, 689. 
 Established at Annapolis, Md., 738. 
 Examinations; final graduating examination defined, 
 
 687. 
 General provisions relating to, 738-771. 
 Hazmg defined, 1287. 
 
 punishment for, 752, 757-759, 1178, 1286, 1287. 
 mles to prevent, 1281. 
 Instructions as to nature and effects of alcoholic drinks 
 
 and narcotics, 1194, 1195. 
 Instructors; duty to report offenses by midshipmen, 
 
 1287. 
 Library to receive public documents, etc., 1240. 
 Professors and instructors; number and compensation, 
 etc., 1457, 1535. 
 civilian; allowances to, quarters, etc., 701. 
 duty to report offenses by midshipmen, 1287. 
 naval officer detailed as; relative rank with Army, 
 
 667. 
 of mathematics; duties at, 771. 
 Regulations, 738, 739. 
 
 authority to make, 195. 
 issue of clothing to midshipmen, 770. 
 statutes interpreted in connection with, 787. 
 to prevent hazing, 1281. 
 violations to be promptly reported, 1287. 
 Secretary of, pay, 794, 805. 
 Secretary of the Navy may prescribe special course of 
 
 study at home or abroad, 1189. 
 Servants in commissary department, 1391. 
 Special course of study and training at home or abroad, 
 authorized, 1189. 
 
 54641°— 22 104 
 
 1643 
 
INDEX. 
 
 NAVAL ACADE>IY-rontiniied. 
 Storekeeper at, 770, 771. 
 
 to render property returns, 1304. 
 Students from foroipii countrips, 743, 1294. 
 from Pliilippine Islands, 743, 1424. 
 number of, 741-744. 
 status of, 710, 741. 
 title of, 739, lias, 1279. 
 Sunday: studies not pursued on, 770. 
 Superintendent; courts-martial convened by, 1286. 
 courts-martial subject to review by, 1287. 
 discretion as to causinp trial of midshipman by 
 
 court-martial, 1286. 
 dismissal of civilian instructor upon approval of 
 
 Setretary of the Navy, 1287. 
 duties respecting dismissal of midshipmen, 1286. 
 offenses of midshipmen must be promptly re- 
 ported to, 1287. 
 pay. 815, 1177. 
 
 removal of for neglecting instructions to midship- 
 men, 1195. 
 rules to prevent hazing prepared by, 1281. 
 Supreme Court reports and digests furnished to, 1365. 
 Title of students, 739, 1188, 1279. 
 NAVAL AUXILIARY RESERVE: 
 
 General provisions relating to, 1452, 1453. 
 NAVAL AUXILIARY SERVICE: 
 
 Naturalization of aliens with service in, 1506. 
 NAVAL CADET: 
 
 Title changed to midshipman, 1279. 
 NAVAL COAST DEFENSE RESERVE: 
 General provisions relating to, 1453, 1454. 
 NAVAL CONSTRUCTORS: 
 
 See Construction Corps; Staff officers. 
 
 Appointment as Chief of Bureau of Construction and 
 
 Repair, 1222. 
 Detail as assistant to Bureau of Construction and Re- 
 pair, 1418. 
 Duties of, 1401. 
 Pay, 793, 802. 
 
 Rank of, 677, 678, 1266, 1427, 1428. 
 NAVAL FLYING CORPS: 
 
 See Flying Corps. 
 NAVAL FORCES: 
 
 See Coast and Geodetic Survey; Coast Gimrd; Details; 
 Enlisted men; Land and Naval forces; Lighthouse 
 Service; Marine Corps; Naval Reserve Force; Navy; 
 Officers of the Marine Corps; Officers of the Navy; 
 Vessels of the Navy. 
 Coast Guard part of, 705, 706. 
 Coast Guard to cooperate with, 1091. 
 Coast Guard to operate as part of, during war, 1400. 
 Command of joint Army and, 668. 
 Cooperating with the Army; supplies and transporta- 
 tion, 433. 
 Defined, 58, 1496. 
 Employment of, 772, 773, 775. 
 at State elections, 1079. 
 to assist distressed navigators, 775. 
 to enforce immigration law, 1081. 
 
 law against slave trade, 1.347, 1348. 
 
 law restricting manufacture and possession of 
 
 explosives, 1492. 
 neutrality laws, 1319, 1320. 
 provisions of espionage act, 1486, 1488. 
 regulations, regattas or marine parades, 1300, 
 
 1301. 
 sponge law, 1289, 1290. 
 to prevent aliens fishing in Alaskan waters, 1289. 
 to protect accused extradited from foreign govern- 
 ment, 1167. 
 
 NAVAL FORCES— Continued. 
 
 Employment of, to protect customs, 1172. 
 to protect fur seals, 1387. 
 
 timber, 1088. 
 to return fugitives from service or labor, 994. 
 to suppress insurrection, 1169. 
 Marine Corps headquarters part of Naval Establish- 
 ment, 331. 
 President's orders executed by Secretary of the Navy, 
 
 342. 
 Public Health Service; duties during war, 1279. 
 Regulations governing; power of Congress and Execu 
 
 tive, .59, 195, 784, 787. 
 Transportation of explosives, 1345, 1346. 
 War-time oITenses relating to; espionage, etc., 1482-1490. 
 NAVAL HOME: 
 
 Deceased inmates; effects of, 1395. 
 Employment of beneficiaries, 1294. 
 Establishment of, authorized, 1159, 1160. 
 Pensions of inmates, 1154-1156, 1261, 1395. 
 Regulations for government of, 1160. 
 Sales and rental of property; proceeds to naval pension 
 fund, 1472. 
 NAVAL HOSPITAL FUND: 
 
 Deductions from pay for, 953, 1159. 
 commandant's clerks, 904. 
 Naval Reserve Force, 814. 
 persons entitled to medical attendance, 904. 
 Fines credited to, 1159. 
 Forfeitures, desertion, credited to, 1273. 
 Pensions of inmates, naval hospitals, 1261. 
 Rations of patients credited to, 898. 
 NAVAL HOSPITALS: 
 
 Commanding officer may convene courts and inflict 
 
 punishments, 1441. 
 District of Columbia; procurement of fuel for, 1530. 
 Female nurses eligilile for duty at, 1303, 1304. 
 General provisions relating to, 1159-1163. 
 Pensions of inmates, 1160, 1161, 1261. 
 Purchase and erection of, 1159, 1160. 
 Rations allowed to, for inmates, 1160. 
 Secretary of the Nav'y, supervision over, 1159. 
 Treatment of civil employees by United States hos- 
 pitals and medical officers, 1468. 
 NAVAL INTELLIGENCE: 
 
 Publication, number of copies to be printed, 1272. 
 NAVAL MILITIA: 
 
 Convening courts-martial on naval vessels, 65. 
 Court-martial jurisdiction over, 62, 64. 
 Decisions relating to, 69-71 . 
 
 Enlisted men detailed to duty with; additional to 
 enlisted strength, 536. 
 in active service, are enlisted men of the Navy, 5:59. 
 Laws relating to repealed, 1455, 1508. 
 
 temporarily revived, 1546. 
 Members of, attending as witnesses before naval courts 
 
 martial, 414. 
 Naval Reserve Force members may belong to, in 
 
 States, etc., 1530. 
 Power of Congress over, 70. 
 Purposes for which may be used, 69. 
 Repeal of laws relating to, 1455, 1508. 
 Service in, not naval service, 588. 
 Temporarily part of Naval Reserve Force, 1546. 
 Vessel loaned to; use of to maintain law, 114. 
 NAVAL OBSERVATORY: 
 Board of Visitors, 1276. 
 Congressional Record furnished to, 1235. 
 Facilities allowed students, 1218. 
 General provisions relating to, 390-393. 
 Observation s of; number of copies to be printed, 1235. 
 
 1644 
 
INDEX. 
 
 NAVAL OBSERVATORY— Continued. 
 
 Regulations; prepared by board of visitors for Secre- 
 tary of the Navy, 1276. 
 Superintendent, is commandant of a naval station, 391 . 
 is lino officer; rank, 1276, 1277. 
 pay of, 390. 
 NAVAL OPERATIONS: 
 
 See Chkfof Naval Opcralions. 
 NAVAL PENSION FUND: 
 
 Credited with unclaimed money, deceased inmates of 
 
 Naval Home, 1395. 
 Funds of deceased naval personnel credited to, 1503. 
 General pro\isions relating to, llO:?, 1146, 1153-1156, 
 
 1201. 
 Proceeds of sales, etc., credited to, 1472. 
 NAVAL PETROLEUM RESERVES: 
 Leases, etc., 1532, 1533. 
 
 Proceeds from leases of, credited to Miscellaneous Re- 
 ceipts, 1533. 
 Proceeds from; use of; fimd created, 1399. 
 Use of, by leasing, etc.; sale of products, 1545. 
 NAVAL RESERVATIONS: 
 See Reservations. 
 
 Alaskan coal lands; reserved for tinvj, 1547, 1548. 
 Indianhead, jurisdiction of United States, 294. 
 Jurisdiction, 292-294. 
 
 Jurisdiction, navy yards and stations, 292. 
 Leases granted by Secretary of the Nav-y; oil, min- 
 eral, or phosphate lands excepted, 1419. 
 Lease of petroleum reserves, etc., 1532, 1533. 
 Offenses committed in; criminal code, 1348-1351; 1353- 
 
 1354. 
 Oil lands; development of; leases; disposal of prod- 
 ucts, etc., 1545. 
 Petroleum reserves; use of proceeds; fund created, 
 
 1399. 
 PuIjUc land provisions not applicable to, 1087. 
 State laws applicable in; criminal code, 1351. 
 Transfer of, to other departments; 295, 
 NAVAL RESERVE: 
 
 Class of Naval Reserve Force, 1509. 
 
 quaUfications for, etc., 1451, 1452. 
 General provisions relating to; whether superseded by 
 
 later law, etc., 1404, 1405. 
 List of persons eligible for appointment in time of war; 
 
 1392, 1393. 
 Repeal in part of law estabUshing, 1455. 
 NAVAL RESERVE FLYING CORPS: 
 
 General provisions relating to, 1454. 
 NAVAL RESERVE FORCE: 
 SeePay of Navgl Establishment. 
 
 Active service; credited to enlisted men, warrant offi- 
 cers and pay clerks. Navy and Marine Corps, 
 1529, 1530. 
 diu'ing peace; afloat; confirmed members, 1510. 
 other than training; no retainer pay allowed, 
 1510. 
 during war, 1443. 
 
 or emergency, 1447. 
 
 Naval Auxiliary Reserve, 1452. 
 enlisted ratings, authorized to supply deficiencies 
 
 in Navy, 1548, 1549. 
 enrolled members; subject to Navy laws and 
 
 regulations, 1511. 
 for confirmation, 1444, 1445. 
 for confirmation and efficiency. Naval Coast De- 
 fense Reserve, 1453. 
 for confirmation and efficiency. Naval Reserve 
 
 Flying Corps, 1454. 
 for confirmation; Naval Reserve, 1452. 
 lor efficiency; Fleet Naval Reserve, 1552. 
 
 N.4VAL RESERVE FORCE— Continued. 
 
 Active service for efficiency; Naval Auxiliary Re- 
 serve, 1452. 
 for efficiency; Naval Reserve, 1452, 1509. 
 for training, 1444. 
 
 enrolled members of Fleet Naval Reserve, 1449. 
 members reUeved from by Secretary of the Navy, 
 
 1510. 
 officers counted as part of commissioned strength 
 
 of the Navy, 1549. 
 officers, in the aviation and auxiliary service, 1549. 
 on shore, restricted, 1528. 
 pay; computation of service for, 1511. 
 Age for disenroUment, 1510. 
 
 for enrollment; imder instruction in summer 
 
 schools for boys, 1546. 
 requirements for Naval Reserve, 1509. 
 Allowances not reduced by appointment as officers in, 
 
 1444, 1451. 
 Appointments; examinations required for, 1445. 
 former officers and midshipmen, 1445. 
 
 Fleet Naval Reserve, 1448. 
 how made, 1444. 
 
 members in Fleet Naval Reserve, 1451. 
 Appropriation credited with retainer pay withheld; 
 
 use of, 1552. 
 Auxiliary service; active duty authorized in, 1549. 
 vessels of United States; officers and men must 
 belong to Reserve, 1448. 
 Aviation service; active duty authorized in, 1549. 
 Badge issued members; unauthorized wearing of, 
 
 1447. 
 Classes in, 1442, 1443. 
 
 Command; restrictions on. Naval Auxiliary Reserve, 
 1453. 
 Naval Coast Defense Reserve and Naval Reserve 
 Flying Corps, 1511. 
 Commissions issued members of the Fleet Naval Re- 
 serve, 1451. 
 Commissioned officers; appointment of, 1444. 
 
 eUgible for membership on courts-martial, 1494. 
 Confirmation in grade; instruction prior to, 1444. 
 requirements for, 1444, 1445. 
 requirements for. Naval Auxiliary Reserve, 1452. 
 Court-martial jurisdiction after release from active 
 
 duty, 976. 
 Death gratuity law not applicable to, 1547. 
 Dental Reserve Corps memberstransferred to, 15(K). 
 Discharge, Fleet Naval Reserve; restrictions on, 1451. 
 on request; refund of clothing gratuity, 1444, 
 1447. 
 DisenroUment for age, 1510. 
 Engineering duties, 1443. 
 
 EnUsted man. Navy; transferred to, 871, 1449, 14,54. 
 in Navy or Marine Corps; travel pay allowed, 
 1551, 1552. 
 Enrolled members; laws and regulations governing, 
 
 1511. 
 Enrollment; term of, 1444. 
 
 to be for general service only, 1549. 
 Examination for appointment and promotion, 1445. 
 for appointment to office in; members of Fleet 
 
 Naval Reserve, 1451, 
 for confirmation, 1444, 1445. 
 for provisional rank, 1444. 
 Examining board for appointment and promotion in; 
 
 how constituted, 14-15. 
 FaiUng to perform duty for maintaining efficiency; 
 retainer pay withheld, 1552. 
 to train; retainer pay withheld, 1546. 
 Fleet Naval Reserve, 1448-1451. 
 
 1645 
 
INDEX. 
 
 NAVAL KESERVE FORCE-Continued. 
 
 Fleet N'uviil Reserve, minimum sonice for mainte- 
 nance of efTiciency, l'>o2. 
 ( icneral provisions relating to, 1442-1455. 
 liratuitics not reduced by appointment to office in, 
 
 1444,1451. 
 Laws and regulations; members subject to, 1446, 1447, 
 
 1451. 
 Line officer for deck or engineering duties, 1443. 
 Marine Corps Reserve, 145-1, 1455. 
 Medals of honor, etc.; additional pay to enrolled 
 
 persons, 1521. 
 Medical board for appointment and promotion, 1445. 
 Medical Reserve Corps members transferred to, 1509. 
 Members; character of service for which enrolled, 1453. 
 citizenship; obUgation assumed; naturalization, 
 
 1443. 
 may hold public employment, except in mOitary 
 
 service, 1440. 
 may revert to status in regular Navy or Marine 
 
 Corps, 1529, 1530. 
 subject to naval laws, etc., 1446, 1447, 1451. 
 Midshipmen appointed from members of, 744, 1502. 
 MUeagc and transportation when released from active 
 
 duty, 1415. 
 National ensign; pennant not to be flown in lieu of, 
 
 144S. 
 National Naval Volunteers transferred to, 1508, 1509. 
 Naval Auxiliary Reserve, 1452, 1453. 
 Naval Coast Defense Reserve, 1453-1454. 
 
 restrictions on exercise of command, 1511. 
 Naval Jlilitia; members may belong to, 1530. 
 
 temporarily made part of, 1546. 
 Naval Reserve; age limits; minimum active service, 
 1509. 
 qualifications, etc., 1451, 1452, 1509. 
 repeal of old law, in part, 1455. 
 Naval Reserve Flying Corps, 1454. 
 
 restrictions on exercise of command, 1511. 
 Oaths; allegiance, 1444. 
 
 authority to administer, 1240. 
 Pay, 808-815. 
 
 active service; computation of longevity. 1511. 
 and allowances for active duty, 1447. 
 when not actively employed, 1447. 
 Pennant or flag for merchant vessels commanded by 
 
 members, 1448. 
 l^rccedence of members with each other and regular 
 
 service, 1511. 
 Promotions; examinations required for, 1445. 
 
 in time of peace not above lieutenant commander, 
 
 1510. 
 in time of war or emergency above lieutenant 
 comtmander, 1510. 
 Provisional grade on enrollment, 1444. 
 Qualifications; enrollments to be for general service 
 only, 1549. 
 for Fleet Naval Reserve, 1448. 
 for Naval Auxiliary Reserve, 1452. 
 for Naval Coast Defense Reserve, 1453. 
 for Naval Rcsers-e, 1451, 1509. 
 for Naval Reserve Flying Corps, 1454. 
 for Volunteer Naval Reserve, 1454. 
 Rank of members limited to lieutenant commander, 
 
 1509. 
 Ranks and ratings, 1443. 
 Reenlistment in regular Navy after service in Fleet 
 
 Naval Reserve, 1450. 
 Rcenrollment of members in rank, grade or rating 
 
 held on last enrollment, 1509. 
 Regulations governing, 1443. 
 
 NAVAL RESERVE FORCE— Continued. 
 
 Regulations governing enrollment in Naval Coast De- 
 fense Reserve, 1453. 
 examinations for confirmation, 1444, 1445. 
 promotions in, 1510. 
 
 traveling allowance. Fleet Naval Reserve, 1449. 
 Regulations of Navy; members subject to, 1446, 1447, 
 1451, 1511. 
 subject to while wearing uniform, 1511. 
 Release from active duty; deposits paid as though 
 
 discharged, S77. 
 Repeal of old Reserve law, in part, 1455. 
 Retainer pay, after confirmation, 1509. 
 before confirmation, 1445. 
 chargeable to "Pay of the Navy," and "Pay, 
 
 Marine Corps," 1455. 
 conditions of payment, 1445. 
 enrolled men. Fleet Naval Reserve, 1449. 
 Fleet Naval Reserve; increased on reenrollment, 
 1450. 
 reenrollment without performing minimum 
 service, 1449. 
 forfeited for cause, Fleet Naval Reserve, 14.50, 1451. 
 increased for heroism and good conduct marks, 
 
 1450. 
 increased on reenrollment, 1445, 1446. 
 Naval Auxiliary Reserve, 1453. 
 Naval Reserve Fljing Corps, 1454. 
 not allowed in time of peace when on active duty 
 
 other than training, 1510. 
 not reduced by appointment as officer, 1444, 1451. 
 service credited for, 1509. 
 
 transferred members of Fleet Naval Reserve, 1450. 
 when paid, 1446. 
 while on active duty, 1445. 
 withlield for cause, 1546, 1552. 
 Retirement, enrolled members, 20 years' service, 1440. 
 limited to physic al disability, 1509, 1510. 
 of officers for physical disabOity, 1549. 
 of transferred members; 30 years' ser-\-ice, 1449, 1451. 
 service credited for, 1509. 
 Schools of instruction for reservists and applicants, 144S. 
 Service credited for retainer pay and retirement, 1509. 
 credited to enlisted men transferred to, 1449. 
 to members for active duty pay, 1511. 
 Summer schools for boys; students to enroll in Naval 
 
 Reserve Force, 1546. 
 Temporary appointments in Navy durmg war or 
 
 emergency; clothing gratuity not checked, 1510. 
 Term of enrollment, under instruction in schools for 
 
 boys, 1546. 
 Transfer betweeeti classes of, 1448. 
 
 of enlisted men to; constructive service credited, 
 
 1449. 
 of enlisted men to Fleet Naval Reserve, 1449. 
 of enUsted men to Naval Reserve Flying Corps, 
 
 1454. 
 of officers to Naval Reserve Flying Corps, 1454. 
 of officers to regular Navy, 1549, 1550. 
 to regular Navy; age requirements, 1551. 
 to regular Navy or Marine Corps, 1529. 
 to regular Navy; rank limited to lieutenant, 1550. 
 Travel allowance, active service in Fleet Naval Re- 
 serve, 1449. 
 Uniform gratuity, 1510. 
 
 amount credited; refund on discharge, 1444, 1447. 
 not checked on temporary appoLatment to Navy 
 during war or emergency, 1510. 
 Uniform outfit, Fleet Naval Reserve, 1451. 
 
 wearing of, when not in active service; oflfenses 
 committed, 1511. 
 
 1646 
 
INDEX. 
 
 NAVAL, RESERVE FORCE— Continued. 
 
 Vessels; contracts with owners for use of, by Navy 
 during war or emergency, 1453. 
 owners of, may eiiroU in Naval Coast Defense Re- 
 serve, 1453. 
 Volunteer Naval Reserve, 1454. 
 Warrant officers; appointment of, 1444. 
 
 appointment of, in Fleet Naval Reser\-e, 1451. 
 Women enrolled in, 1531. 
 NAVAL, SERVICE: 
 
 See Naval Forces; Navy. 
 
 Defined; Marine Corps included, 920, 921. 
 
 to include service on any vessel pursuant to com- 
 petent orders, 1493. 
 Marine officers who resign from , may be reinstated , 1461 . 
 NAVAL SOLICITOR: 
 
 See Judge A, dvocate General. 
 Office of, in Department of Justice, 282, 359. 
 NAV.4JL STATIONS: 
 
 See Navy yard and stations. 
 NAVAL STOREKEEPERS: 
 
 Appointment and number of, 531. 
 NAVAL SUPPLY ACCOUNT: 
 
 Appropriations credited with appraised value of 
 
 stores, etc., 1397. 
 Creation of, 1366, 1367. 
 Losses, how charged, 1557. 
 Prices at which material expended, 1557. 
 Sales from, credited to naval supplj^ account fund, 1557. 
 NAVAL SUPPLY ACCOUNT FUND: 
 
 Creation of; amount; charges and credits, 1557. 
 NAVAL SURGEONS: 
 See Boards. 
 
 Board of; examinations for promotion, 707-710. 
 Board of; Secretary of the Navy may act for President, 
 1481, 1482. 
 NAVIGATION: 
 
 See Bureaus; Chiefs of bureaus. 
 Collisions; duties of master; penalty, 1215, 1216. 
 Derelicts and wrecks; marking and removal of; Inter- 
 national agreement, 1223. 
 General provisions relating to, 1125-1131. 
 Hydrographic Office; duties for improving means of, 
 
 387. 
 Hydrographic Office publications; preparation and 
 
 sale of, 1236, 1237. 
 Laws and regulations; Shipping Board to reeoiamend 
 
 changes to Congress, 1467. 
 License regulations, etc., not applicaijle to officers of 
 
 public vessels, 1135. 
 Maps, charts and nautical books, prepared and sold 
 
 by Hydrographic Office, 390. 
 Pilotage; State discrimination against national vesseLs 
 
 forbidden, 1130. 
 Regulations to protect, against target practice, proving 
 operations, etc., 1519. 
 transportation of explosives, etc., on navigable 
 waters, 1519. 
 Rules for preventing collisions at sea; international, 
 1204-1215. 
 Great Lakes, etc., 1240-1246. 
 harbors, rivers and inland waters, except Great 
 Lakes and Red River of the North, etc., 1251- 
 1261. 
 motor boats, 1355-1358. 
 
 on the Red River of the North and rivers emptying 
 into the Gulf of Mexico and their tributaries, 
 1125-1130, 1135, 1246, 1247. 
 Rules governing, certain inland waters, 1246, 1247. 
 Pearl Harbor, 13^2. 
 regattas or marine parades, 1300, 1301. 
 
 NAVIGATORS: 
 
 Detail of officers to naval vessels, 577. 
 Hydrographic Office to provide manuals for use of, 387. 
 Naval vessels to assist, in distress, 775. 
 Sale of publications to, Hydrographic Office, 1236, 1237. 
 NAVY: 
 
 See Articles for the Government of the Navy; Courts- 
 Martial; Enlisted men; Marine Corps; Naval forces; 
 Naval Reserve Force; Officers of the Marine Corps; 
 Officers of the Navy; Retired enlisted men; Retired 
 officers; Staff officers; Vessel^ of the Navy. 
 Appointments in regular Navy during war, 1392. 
 Coast and Geodetic Survey transferred to, during war 
 
 or emergency, 1479, 1480. 
 Coast Guard operating as part of; expenses; adjust- 
 ment of appropriations, 1456. 
 operating as part of; laws to which subject, 14.55. 
 part of, 705, 706. 
 
 when serving with, 539. 
 Compulsory service in, 47. 
 
 involuntary servitude, 136. 
 Congress to make regulations for, 58. 
 
 to provide and maintain, 47. 
 Constitution appUcable to, 68. 
 Defined, .539. 
 
 classes of personnel included, 928. 
 to include Coast Guard, 1524. 
 whether Marine Corps included, 962, 963. 
 Drafted officers of merchant vessels; pensions, wages, 
 
 etc., 1249. 
 General provisions relating to, 784^-790. 
 Laws, appUcable to Marine Corps, 962. 
 
 governing, where found, 1. 
 Lighthouse Service transferred to juriscUction of, 
 
 during war or emergency, 145<), 1457. 
 Line officers; grades of, 447. 
 Marine Corps normally part of, 957-960. 
 Naval militia part of, when serving with, 539. 
 Officer's responsibihty for illegal acts, 54. 
 Procurement of suppUes and stores for; regulations 
 
 governing, 787, 788. 
 Public Health Service; duties duiing war, 1279. 
 Stateinterference with, 47. 
 NA>Tr AGENTS: 
 
 Estimates and appropriations for expenses of, 1103. 
 NA\-Y BANTJS: 
 
 Defined; ilarine Band not included, 952. 
 Not to compete with civilians, 1304. 
 N.WT^ BUILDING: 
 
 See Buildings; State, War and Navy Building. 
 District of Columbia laws appUcable to, 332. 
 General provisions relating to, 331, 332. 
 Superintendent of, 332. 
 Supervision of, 1.502, 1.503. 
 NAVY CROSSES: 
 
 President maj' delegate power of awarding, 1522. 
 Provisions relating to, 1521-1523. 
 NAVY DEPARTMENT: 
 
 See Appropriations; Bureaus; Chiefs of Bureau.i; Chief 
 of Naval Operations; Civil establishment; Contracts; 
 Estimates; Executive departments; Heads of depart- 
 ments; Hydrographic Office; Judge A dvocate General; 
 Pay of civil establishment; Printing and binding; Public 
 property; Records; Reports; Secretary of the Navy. 
 Accounts of expenditures to show disbursements of 
 
 each bureau, 1102, 1103. 
 Appropriations controUed and expended by direction 
 oftheSeoretar^^ 1104. 
 for each bureau to be kept separate in Treasury, 
 
 1104. 
 permanent, 1106, 1107. 
 
 1647 
 
INDEX. 
 
 NAVY DEPARTMENT-Continued . 
 
 Assistant Secretary, appointment of, 120-t. 
 duties of, 1217. 
 
 Supreme Court reports and digests furnished to, 
 1365. 
 Bonds of disbursing officers may be increased by Pres- 
 
 dcnt, 109S. 
 Kulldings occupied by, 331, 332. 
 
 super\-ision of, 332, l')02, 1503. 
 Business, distribution of, 357. 
 
 Clerks and employees: general provisions relating to, 
 334-341. 
 number and compensation of, 334, 335. 
 Commissions of officers prepared and sealed by, 1248. 
 Congressional Record furnished to, 1235. 
 Contracts to be filed in offices of accounting officers, 
 
 1118. 
 EstabUshed as an executive department, 189. 
 
 at the seat of Government, 331. 
 Estimates, 385. 
 
 items of expenditure for which submitted, 1102, 
 1103. 
 General provisions relating to, 331-393. 
 Hours of business, 201. 
 
 Hydrograpliic Office attached to Bureau of Navigation, 
 1236. 
 
 Judge Advocate General's office; duties, etc.. Use, 
 
 1187. 
 Legal advice; Attorney General to provide, 321. 
 Marine Corps not a part of, 192, 331, 957. 
 Medals of honor prepared under direction of, 512. 
 Naval officers appointed as chiefs of bureaus, 362. 
 detailed to duty in, 364, 389, 466. 
 not part of department, 333. 
 
 unless holding statutory position, 213, 215. 
 Not a naval station, 332. 
 Official Register of the United States to befurnished to, 
 
 1236. 
 Permanent annual appropriations, 1106, 1107. 
 Property, books and records: custody of, 352. 
 flags captured from enemy, 381, 790. 
 loaned to, 380. 
 
 loan of scientific instruments, 1201. 
 supplies purchased and issued without regard to 
 
 bureaus, 1216. 
 transfer between bureaus, with or without charge, 
 1203. 
 Records; contracts to be filed in offices of accounting 
 officers, 1118. 
 custody of, 361. 
 destroying summary court-martial, after two 
 
 years, 1009, 1311. 
 desired for use in court, 424. 
 evidence before courts, 1009, 1010, 1023, 1036. 
 promotion boards to examine, 722, 723. 
 publication of, 1295. 
 
 report of survey upon value of enemy vessels, 1477. 
 submitted to President, promotion cases, 724. 
 transferred from other departments, 1283, 1295, 
 
 1389. 
 treatment and character of diseases, 466. 
 Session laws furnished to, 1235. 
 Statutes at Large furnished to, 1235. 
 NAVY aiAIL CLERKS: 
 
 Assistants; designation of, etc., 1306. 
 
 Bonds, 1306, 1387, 1388. 
 
 Designation of; duties; oath; bond; compensation; 
 
 regulations governing, 1306. 
 Duty on shore, 1513, 1514. 
 
 with expeditionary forces, 1474. 
 Jurisdiction of accounting officers, 237. 
 Mates eligible for appointment, 522. 
 
 NAVY MAIL CLERKS— Continued. 
 
 Oath of office, 328, 1306. 
 
 Pay of, 865, 1306. 
 NAVY ORDERS: 
 
 Procurement of supplies during war, 1413. 
 of vessels, etc., during war, 1475, 1476. 
 NAVY PAY OFFICE: 
 
 Not an office of Navy Department, 359. 
 N.AATT PERSONNEL ACT: 
 
 March 3, 1899, text of, 1263-1271. 
 NAVY REGISTER: 
 
 See licgislcr. 
 
 Advancement for war service designated in, 1275, (276. 
 History and definition of, 044-016. 
 Printing of extra number authorized, 1235. 
 Retired officers; names of, wholly retired, omitted 
 from, 631 . 
 Navy, to be borne on, 631. 
 NAVY REGULATIONS: 
 
 See Regulations. 
 NAVY YARDS AND STATIONS: 
 
 See Civil establishment; Pay of civil establishment. 
 Abolishing navy yards without legislative authority, 
 
 779. 
 Aid or executive of commandant, 669. 
 Aid or executive of commandant: construction officer 
 
 ineligible, 508, 779. 
 Apprentices at, are not enlisted men, 538. 
 Appropriations for maintenance of naval training 
 
 stations, 1530. 
 Boards to report upon repairs to vessels, 776, 777. 
 Captain of the yard: additional pay as aid, 670. 
 Civil engineers appointed fpr duty at, 531. 
 Civil establishment; appointment of master work- 
 men, 779, 780. 
 leave of absence outside United States; cumula- 
 tive, 1417. 
 laborers, employment of, 780. 
 no increase before elections, 1180. 
 nimiber and rates of pay fl-xed by Secretary, 
 
 1312, 1313. 
 pay, leave, holidays, etc., 781-783. 
 political opinion not ground for discharge, 783. 
 preference for appointment, 1313. 
 wages, how fixed, 1177. 
 Commandant, appointment of, 779. 
 construction officer not eligible, 507. 
 deck coiu'ts ordered by, 1308. 
 duty of example and correction, 978, 979. 
 general court-martial convened by, 1310, 1442. 
 marine officer ineligible, 955. 
 oaths administered by, 1240. 
 precedence of, 669. 
 Definition of, 779. 
 
 Divine service to be conducted on Sunday, 979. 
 Eight-hour law. Government work, 1117, 1219, 1220, 
 
 1474. 
 Elections; force not increased before, 1180. 
 Enlisted men; employment of, when ships are docked 
 
 or laid up for repairs, 1383. 
 Espionage; illegally obtaining information concern- 
 ing, etc., 1482. 
 First lieutenant; detail of officer to duty as, 577. 
 General provisions relating to, 772-783. 
 Holidays allowed per diem employees, 1194, 1198. 
 
 regulations governing pay on, 787. 
 Lands purchased for; title and jurisdiction, 282. 
 Leave of absence, civil employees, 1464. 
 Line officers detailed to duty under staff officers at, 
 
 1359. 
 Mandamus against board of labor employment at, 780. 
 
 1648 
 
INDEX. 
 
 NAVY YARDS AND STATIONS— Continued. 
 Mare Island; pay of commandant, 815, 1177. 
 Naval Observatory held to be a naval station, 391. 
 Naval officers not to be appointed to civil positions, 
 
 779, 780. 
 Navy Department is not a naval station, 332. 
 Not part of an executive department, 192. 
 Offices at navy yards may be abolished by Secretary 
 
 oftheNa^T, 533. 
 Overhead charges distributed between appropriations, 
 
 139S. 
 Permanent station, defined, 1536. 
 Political contributions prohilnted, 783. 
 Power plants consolidated under Bureau of Yards 
 
 and Docks, 1282. 
 Property on hand; annual report of, 381. 
 Repair of vessels, 776. 
 
 for Shipping Board, 1466. 
 Rope wallis; superintendent of, 779, 780. * 
 
 Shipping Board may have vessels repaired and con- 
 structed in na^-y j'ards, 1466. 
 Steam engines; estimates and appropriations for re- 
 pairs and attendance, 1103. 
 Storekeepers appointed for duty at, 531. 
 Trading at, for private benefit; punishment, Navy, 
 
 989. 
 Transfer of property from one yard to another requires 
 
 legislative authority, 779. 
 Useless papers; disposal of, 1401. 
 Vessels under construction at, not completed because 
 
 of expense, 1190. 
 Washington, D. C; model tank for experiments at, 
 1250. 
 use as a manufacturing yard, 1189. 
 Young Men's Christian Association buildings in, 
 1366. 
 NEGLECT OF DUTY: 
 
 Dismissal mandatory on conviction, in certain cases, 
 1287. 
 NEGLIGENCE: 
 
 See Ankles for the government of the Navy. 
 Sti'anding or hazarding naval veosel, or running upon 
 rock or shoal, 985. 
 NEUTRALITY: 
 
 Enforcement of, 1486-1488. 
 Naval forces employed to enforce, 1319. 
 Offenses agamst, 1318-1320. 
 NEWSPAPERS: 
 
 Advertising, District of Columbia, 1123. 
 
 estimates and appropriations for. Navy, 1103. 
 
 for foreign supplies, 1114. 
 
 for proposals for naval supphes and transportation, 
 
 nil. 
 rates, 11&4. 
 
 District of Columbia, 1187. 
 sale of naval vessels, 1192. 
 written authority required for, 1124. 
 Expenditures for, limited, 225. 
 Payment for subscriptions in advance, 1401. 
 PubUcation of receipts and expenditures relating to 
 
 Navy, 262. 
 Restrictions on purchase of, 1073. 
 NEW TRIAL: 
 
 Accused requesting; former jeopardy, 121. 
 Court-martial, 1047. 
 
 Court-martial; members of former court ineligible, 1018. 
 NEW YORK HARBOR: 
 
 Naval officer detailed as supervisor of, 1198, 1199. 
 NITRATE SUPPLY: 
 
 Product of plants available for Navy, 1413. 
 
 N03nNATI0N; 
 
 See A ppointments: Midshipmen. 
 Candidates for midsliipmen, 744-749, 1294, 1295. 
 Confirmation of Senate indirectly given, 735. 
 Ineligible; effect of confirmation, 96. 
 NONCOManSSIONKD OFFICERS: 
 
 Petty officer of Na\'y included, 441. 
 NON COMPOS: 
 
 Insane person defined, 185. 
 NOTARIES PUBLIC: 
 
 Employment as attorneys before executive depart- 
 ments, 1295. 
 States and territories; authorized to administer oaths 
 
 and take acknowledgments, 1072. 
 States; oath of allegiance may be administered by, 1093. 
 NUMBERS: 
 
 See Advance mcTit: Loss of numbers. 
 NURSE CORPS (FEMALE): 
 Commutation allowed, 1482. 
 
 Compensation for death or disability, 1498-1501, 1546, 
 1.547. 
 under War Risk act in lieu of employees' compen-' 
 sation benefits, 1.500. 
 Deaih gratuity law applicable to, 1546, 1547. 
 Organization, appointments, examinations, duties, 
 
 pay, etc., 13a3, 1304. 
 Pay, allowances, leave of absence, 8C7, 808. 
 Relative rank in Army, 808. 
 OATHS: 
 
 Acknowledgment of deeds in Guam and Samoa, 1291, 
 
 1292. 
 Affirmation satisfies requirement, 185. 
 Allegiance, Naval Reserve Force, 1444. 
 officers and men of the Nax^y, 1271. 
 persons prosecuting claims against United States, 
 1093. 
 Authority to admmister, 217-219, 1072, 1073, 1240. 
 
 prosecution of claims againsi United States, 1093. 
 Chief clerks may administer oaths of office, 1215. 
 
 to accounts for travel and other expenses, 1386. 
 Claims for lost or damaged property, naval personnel, 
 
 1493. 
 Clerks designated may administer to accounts for 
 
 travel and other expenses, 1386. 
 Contracts; officer filing return in Returns Office, 1119. 
 Counsel required to take when appointed by Attorney 
 
 General, 325. 
 Courts of inquiry may administer, 1055. 
 
 members and judge advocate to take, 1056. 
 Deck courts may administer, 1308. 
 Enlisted men. Marine Corps, 935. 
 
 Navy, 1271. 
 Examining board; statements submitted to, 723. 
 False acknowledgments by officer authorized to ad- 
 minister, 1323. 
 in connection with claims against United States, 
 990. 
 General courts-martial; members and judge advocate, 
 
 1019. 
 Homestead laws; administration of, 108:J. 
 Investigating officers may administer, 217. 
 Minor enlisting in Navy, 1402, 1403. 
 Naval officers authorized to administer for purposes of 
 naval administration, 1240. 
 may administer to postal employees, 328. 
 Officers authorized to administer, 217-219, 1240. 
 Of office; chief clerks to administer, 1215. 
 
 civilian appointed on retired list, .\rmy, 633. 
 civil, military, or naval service, 1065, 1066. 
 construed as acceptance of appointment, 96, 207. 
 
 1649 
 
INDEX. 
 
 OATHS— Continued . 
 
 Of oHicc; general provisions relating to, 337-338. 
 Marine Corps, 935. 
 midshipmen, 748. 
 naval oflicers, 1271. 
 
 Navy mail clerks and assistants, 328, 1306. 
 omission of postal employees to take, does not allett 
 
 criminal liability, 1345. 
 Postal Service, 328. 
 promotion, 654. 
 
 promotion of civil employee, 1215. 
 reappointment of officer, 97. 
 violated by officer exceeding jurisdiction, 320. 
 Omitted; statement of candidate for promotion, 724. 
 Persons prosecuting claims against United States to 
 
 take, 1093. 
 Retiring board members, 603. 
 
 Secretary of the Navy may empower oflBcers to ad- 
 minister, 1240. 
 Selection board members required to take, 1431. 
 Special counsel in foreign coimtry, 224. 
 Summary courts-martial; members and recorder, 1006. 
 Superintendent of Naval Observatory may administer, 
 
 391. 
 Witnesses before any naval court-martial, 1021. 
 summary courts-martial, 1006. 
 OBEDIENCE: 
 
 Commanding officers entitled to, from officers having 
 
 earlier date, 576. 
 Honorable discharge testimonial of, 573. 
 Petty officers entitled to, 525. 
 Preference in granting leave of absence to faithful and 
 
 obedient, 574. 
 Retired officer entitled to, when commanding in time 
 of war, 660. 
 OBITER DICTA: 
 
 Attorney General's opinions, 311. 
 OBSCENE: 
 
 Books, etc., importing or transporting, 1347. 
 Indecent, etc., matter unmailable, 1340. 
 on wrappers of mail or postals, 1341. 
 I-iterature, etc., circulation of, 1353. 
 OBSERVATIONS: 
 
 Naval Observatory; number of copies to be printed, 
 1235. 
 OBSERVATORY: 
 
 See Naval Observatory, 
 OCEAN AND LAKE SURVEYS: 
 Hydrographic Office, duties of, 388. 
 OCEAN aiAIL VESSELS: 
 
 Commandeered by the Navy for use as transports or 
 
 cruisers, 1217. 
 Construction of, subject to approval by Secretary of 
 
 the Navy, 1216. 
 Detail of naval officers for duty on, 1217. 
 OFFENDERS: 
 
 Refusing or failing to bring to pimishment or to aid 
 others; punishment, Navy, 985. 
 OFFENSES: 
 
 See Articles for the Government of the Navy; Crimes. 
 Different in degree; plea in bar of trial, 120. 
 General; not specified; punishment. Navy, 996-1002. 
 On shore, against inhabitants, punishment. Navy, 985. 
 Violating both military and civil law, 120. 
 law of two governments, 120. 
 OFFICE: 
 See Grades. 
 
 Acceptance of incompatible; effect, 989, 1069. 
 Chiefs of bureaus. Navy Department, hold two offices 
 366. ' 
 
 OFFICE— Continued . 
 
 Civil; additional compensation not allowed to incum- 
 bent, 1060-1071, 1177. 
 chiefs of bureaus, Navy Department, 365. 
 naval officers forbidden to hold emplo^onent with 
 
 certain contractors, 1250. 
 preference in appointment of persons disabled in 
 
 military service, 1065. 
 restrictions on holding; double compensation; 
 additional pay, 472, 950, 951, 1066-1071, 1177, 1411. 
 Definition, 90, 1009, 1070. 
 
 discharge of special duties does not constitute, 1075. 
 distinguished from title, grade, and rank, 449, 450, 
 837, 910. 
 Disqualification to hold; deserter in time of war, 1077, 
 1078. 
 sentence of court-martial; remission of, 1053. 
 Foreign government, acceptance of by United States 
 
 of^cer, 75. 
 Head of department can not abolish, 194. 
 Incompatible; definition of, 989, 1069. 
 
 naval office and civil position in Navy Depart- 
 ment, 389. 
 naval office and diplomatic or consular appoint- 
 ment, 579. 
 vacancy created by acceptance of, 215. 
 Naval officers holding private employment, 576. 
 Not property, 124. 
 
 Oath of; civil, military and naval service, 1065, 1066. 
 Pay; additional not allowed, 1177. 
 
 of two offices not allowed, 472, 950, 951, 1066-1071, 
 1411. 
 Private emplojrment; persons discharged from mili- 
 tary service, 1065. 
 Rank distinguished, 449, 450, 837, 910. 
 Secretary of the Navy may abolish at navy yards, 533. 
 Territorial; naval personnel not to hold, 1075. 
 Two offices; chiefs of bureaus in Navy Department, 
 366. 
 holding of, by naval officers detailed to Dominican 
 
 RepubHc and Haiti, 1416, 1502. 
 holding of, by naval officers detailed to South 
 
 American Republics, 1399, 1556. 
 incompatible resignation implied, 529. 
 naval officer may hold appointment in Virgin 
 
 Islands, 1075. 
 restrictions on double salaries, 472, 950, 951, 1066- 
 
 1071, 1411. 
 retired officer and Member of Congress, 643. 
 retired officers holding, 337. 
 Unauthorized; no salary for, 1066. 
 OFFICER AND GENTLEMAN: 
 
 Conduct unbecoming; punishment. Navy, 998-1000. 
 OFFICERS: 
 
 See Appointments; Civil establishment; Commission; 
 De facto; Discharge; Dismissal; Oaths; Officers of the 
 Marine Corps; Officers of the Navy; Pay of civil es- 
 tablishment; Pay of Naval Establishment . 
 Acceptance of appointment necessary to vest office, 96. 
 
 oath of office constitutes, 96. 
 Additional duties not equivalent to new appointment, 
 94. 
 pay not allowed, 1177. 
 Appointing power, 89. 
 
 Biennial register of, required, 228, 1235, 1236. 
 Defined, 89, 1010. 
 
 includes clerks, 90, 413. 
 
 persons authorized to perform duties, 185. 
 President and Secretary of the Navy, 1040. 
 whether includes retired officers, 224, 438. 
 Dismissal, 97. 
 
 1650 
 
INDEX. 
 
 OFFICERS— Continued . 
 
 Effects lost on sunk or captured vessel, 269. 
 Emplo3rment in excess of appropriations restricted, 
 
 1104. 
 Former, not to prosecute claims against United States, 
 
 224. 
 General provisions relating to, 1065-1073. 
 Illegal acts, Congress may protect from responsibility 
 
 for, 57. 
 Pay of civil, where appropriation inadequate, 204. 
 Positions can not be abolished without statutory 
 
 authority, 212. 
 Qualifications of candidate final after appointment, 96. 
 Resignation; right of, 99. 
 Reinstatement after dismissal, 94. 
 Responsibility for illegal acts, 54, 78, 350, 351. 
 Retired officers; whether "office" includes, 224, 438. 
 Temporary appointments, 99. 
 United States, defined, 89. 
 Veto of bill restoring dismissed officer, 34. 
 OFFICERS AND ENLISTED MEN: 
 
 Definition of, 928. 
 OFFICERS OF THE MARINE CORPS: 
 
 See Acting officers; Additional number officer.?; Ad- 
 vancement; AllowaTices; Appointments; Army; Ar- 
 ticles for the Government of the Navy; Civil employ- 
 ment; Courts-martial; Details; Dianmsal; Examina- 
 tions; Length of service; Marine Corps; Marine Corps 
 Reserve; Pay of Naval Establishment; Promotion; 
 EanTc; Retired officers; Retirement; Second lieutenants. 
 Additional numbers, 929, 1275, 1276, 12S9, 1392, 1458, 
 1459. 
 war service, 1275, 1276, 1289. 
 Advancement for conduct in battle or heroism, 921, 
 
 933, 1275, 1276. 
 Allotments of pay by, 1249. 
 
 Appointment, 922, 925, 1188, 1189, 1270, 1281, 1392. 
 commencement of pay, 1221, 1222. 
 major general commandant, 1392, 1460. 
 Arrest; exemption from, in certain cases, 935. 
 Brevet commissions, 931-933. 
 Civil employment restricted; private companies, 1250. 
 
 office in Virgin Islands may be held by, 1075. 
 Commandant, 215, 928, 929, 1392, 1459, 1460, 1512. 
 Computation of numbers, 1458, 1459. 
 final fractions, 920, 921, 1428, 1458. 
 major general commandant counted as senior to 
 
 colonel, 1459. 
 senior stafi officers counted as colonels, 1460. 
 Counsel before courts-martial, etc.; punishment for 
 
 accepting fee, 1333. 
 Detailed as assistant to chief of Naval Operations, 1418. 
 
 to Judge Advocate General, 1418. 
 Detailed away from headquarters; staff officers, 921. 
 for service on vessels, 954. 
 to Dominician Republic, 1502. 
 to Haiti, 1416. 
 Director of civiMan marksmanship; appointment, 1465. 
 Discharge; failure to pass professional reexamination 
 
 for promotion, 1463. 
 Distribution in rank, 1458, 1459. 
 
 Dropped from rolls for unauthorized absence, etc., 1.503. 
 Examinations for promotion, 711, 924-927, 1270. 
 failure to pass, 1463. 
 physical, 707, 708, 1463. 
 Families; payment of death gratuity to, 1546, 1547. 
 transportation fiunished on permanent change of 
 station, 1535, 1536. 
 Gradesof, 917, 918, 14.58. 
 
 Homesteads; general provisions relating to, 1083-1087. 
 Influencing legislation; punishment, 1527. 
 
 OFFICERS OF THE MARINE CORPS— Cont'd. 
 Length of service credited to, 927, 928, 1535. 
 Major General Commandant, 215, 928, 929, 1392, 1459, 
 
 1400, 1512. 
 Major generals; grade created; appointments author- 
 ized, 1512. 
 National Guard officers appointed from, 1412. 
 Navy yards and vessels; ineligible for command of, 955. 
 Number of, 917-919, 1416, 1458. 
 
 additional numbers, 929, 1275, 1276, 1289, 1392, 
 
 1458, 1459. 
 computations, 920, 921, 1428, 1458. 
 exceeding, 921. 
 pay clerks, 919, 1515. 
 power of Congress to reduce, 921 . 
 staff; appointment, detail, etc., 1460, 146i. 
 warrant officers, 918, 1462, 1479. 
 Oaths administered by, 217-219, 1240. 
 
 taken by, 935. 
 Official Register of the United States to contain names 
 
 and information concerning 1235, 1236. 
 Pay and allowances, 936-951. 
 Pay clerks, 918, 919, 1515. 
 Precedence of, 930, 931. 
 Probationary appointments, 925. 
 Promotion; Army laws extended to, 1219. 
 conduct in battle or heroism, 933. 
 date of rank, 931,1459 
 general provisions relating to, 924-927. 
 list; seniority; promotions made from, 1461. 
 physical incapacity; retired rank, 965. 
 Punishments inflicted by, without court-martial, 1441. 
 Rank; date of, on promotion, 931, 1459. 
 distribution in, 1458. 
 in relation to the Army, 930, 931. 
 of senior staff officers, 1460. 
 on retirement, 964. 
 Rations; not entitled to, 9.54. 
 Reappointment after resignation, 1461. 
 Retirement, 963-971. 
 
 civil war service, 968, 1293. 
 Service credited to, 927, 928, 1535. 
 Staff departments, 921, 922, 1460, 1461. 
 rank of, 929, 1460. 
 relation to line, 921, 922, 1460. 
 Thanks of Congress; advancement for receiving, 933. 
 Transfer to different branch of the service, longevity 
 
 credit, 1249. 
 Two offices; pay of both not allowed, 950, 951, 1066- 
 
 1071. 
 Uniforms, etc., sold to, at cost, 1521, 1531. 
 Warrant officers, 918, 1462, 1479. 
 OFFICERS OF THE NAVY: 
 
 See Acting officers; Additional number officers; Advance- 
 ment; Allowances; Appointments; Articles for the 
 Government of the Navy; Civil employment; Commis- 
 sioned warrant officers; Courts-martial; Details; Dis- 
 missal; Examinations; Length of service; Naval Re- 
 serve Force; Officers; Pay of Naval Establishment; 
 Precedence; Promotion; Rank; Records; Retirement; 
 Retired officers; Staff officers, Titles; Warrant officers. 
 Absent without leave; dropped from roUs, 1011, 1012. 
 Acting assistant surgeons, status of, 527, 528. 
 Acting, status of, .525. 
 Additional numbers authorized, 451, 452. 
 engineer officers to be, 1366. 
 excluded from computations, 1429. 
 Naval Flying Corps, 1437. 
 war service, 1275, 1276. 
 Advancement for conduct in battle or extraordinary 
 heroism, 453, 454, 734-736, 1275, 1276. 
 
 1651 
 
INDEX. 
 
 OFFICERS OF THE NAVY -Continued. 
 Advancement to rear adniiral during war, 454. 
 
 when pay commences, Si2-,s:i8. 
 Allotments of pay by, 1249. 
 Allowances same as Army, 1267. 
 Appointment as chiefs of bureaus in Navy Depart- 
 ment, 362. 
 as National Ouard ofTicers, 1412. 
 by President without consent of Senate; account- 
 ing officers notified of, 1072. 
 from graduates of Naval Academy, 765-768, 11S8, 
 
 1189, 1392. 
 from graduates of Naval Academy; commence- 
 ment of increased pay, 1221, 1222. 
 of convicted deserters, 573. 
 of dismissed midshipmen restricted, 1281. 
 to civil offices at navy yards forbidden, 779, 780. 
 Captured by enemy; pay, 891. 
 Citizensliip, 571. 
 
 Civil employment; ocean mail vessel; compensation 
 allowed by contractor, 1217. 
 office in territories; 1075. 
 office in Virgin Islands, 1075. 
 restricted, 1066-1071. 
 restricted; private companies, 1250. 
 Civil engineers held to be, 532. 
 
 liability for illegal acts, 1003. 
 Civilians commissioned as, in time of war, 1392, 1393. 
 Classified as commissioned, warrant and petty, 448. 
 Clerks, status of, 525, 534. 
 Commissioned warrant officers; designation of chief 
 
 warrant officers, 512. 
 Commodore omitted from grades of line, 1264. 
 Computations, 1427. 
 
 time for making, 1529. 
 Counsel before courts-martial, departments, etc., 1333. 
 Courage, skUl and genius rewarded, 454. 
 Definition of, .526. 
 
 cadet engineers included, 832. 
 mileage laws, 846. 
 retirement laws, 586, .587. 
 Demanding compensation for transportation of articles 
 
 other than gold, silver or jewels, 9S5. 
 Detailed as assistants to chief of Naval Operations, 
 1418. 
 as assistants to chiefs of bureaus and Judge Ad- 
 vocate General, 466, 1222, 1224, 1261, 1284, 1418. 
 as naval attach^, 828, 829. 
 to Coast and Geodetic Survey, 1151. 
 to Dominican Republic, 1502. 
 to educational institutions, 435-441. 
 to examining boards coQceming repairs to vessels, 
 
 776, 777. 
 to Haiti, 1416. 
 
 to Lighthouse Service, 1149. 
 to Nautical Almanac Office, 391. 
 to naval vessels, 775. 
 
 to Navy Department, 333, 337, 364, 389, 46«. 
 to Navy Department but not holding statutory 
 
 position, 213, 215. 
 to War Department, 507. 
 Diplomatic or consular office held by; effect of on 
 
 commission, 579. 
 Dismissal of, 441, 1010-1014, 1036. 
 Distribution in grades and ranks; computations, 1427. 
 computations, time for making, 1.529. 
 line and staff officers, 1425, 1427. 
 Distribution of rear admirals between upper and lower 
 
 half, 1428. 
 Dropped from rolls for unauthorized absence, etc., 1503. 
 not qualified for promotion, 729-734. 
 
 OFFICERS OF THE NAVY— Continued. 
 Elections; not to interfere with iu States, 1079. 
 Enlisted men appointed as; discharge, 523. 
 Ensigns (junior grade) abolished, 1193. 
 K.xamination for promotion; facts once determined 
 
 not reopened, 1183. 
 Exceeding number in grade, 736. 
 Extra duties; restriction on additional pay, 1066-1071. 
 Families; payment of death gratuity to, 1.540, 1.547. 
 traasportation furnished on permanent change of 
 station, 1.").35, 1.536. 
 Flag officers: rank of, 576. 
 Furloughed by Secretary of the Navy, 583. 
 Furlough pay, detailed to ocean mail vessels, 1217. 
 General provisions relations to public officers, 1065- 
 
 1073. 
 Grades of line officers, 447, 1425. 
 Holding private employment, 576. 
 Homesteads; general provisions relating to, 1083-1087. 
 Incompatible offices defined, 1069. 
 Investigation of charges against, 217. 
 Insane; St. Elizabeths Hospital in the District of 
 
 Columbia, 1161-1163. 
 Length of service; how computed; Army and Navy 
 
 service credited, 1191. 
 License regulations not applicable to, 1135, 1136. 
 
 required when serving as master of merchant 
 vessel, 1135, 1136. 
 Lighthouse Service; detail to, 1149. 
 Mates; status of, 517-519. 
 Medical attendance, 902-904. 
 Midshipmen, status of, 740, 741, 755-7.57, 764, 903. 
 Minors eligible to sit as members of court-martial, 1018. 
 Misconduct; officer to be tried by court-martial instead 
 
 of retired, 622. 
 Number; acting assistant surgeons, 527, 1261. 
 
 additional to authorized strength, 451, 452, 1275, 
 
 1276, 1289, 1366, 1437. 
 chaplains and acting chaplams, 1396. 
 Civil Engineer Corps, 531. 
 commissioned inline, 1424. 
 computations to determine, 1427, 1428, 1429. 
 computations, time for making, 1529. 
 Dental Corps, 1421. 
 effect of exceeding, 453. 
 engineer officers to he additional, 1366. 
 in any corps, grade, or rank; computations; 
 
 disposition of fractions, 1427, 1428, 1429. 
 in any grade or rank; computations; additional 
 
 numbers excluded, 1429. 
 increase in; explicit legislation required, 452. 
 line officers, 450-453. 
 line officers; when may be exceeded, 453. 
 medical officers, 455, 456, 1436, 1437. 
 midshipmen, 741-744. 
 Naval Flying Corps; additional, 1437. 
 naval storekeepers, 531. 
 not increased by implication, 506. 
 not to be exceeded, 1428. 
 pay clerks, chief pay clerks, and acting pay clerks, 
 
 1406, 1407. 
 permanent, not affected by act of July 11, 1919; 1528. 
 
 not affected by act of June 4, 1920; 1549. 
 pharmacists and chief pharmacists, 1420. 
 power of Congress to reduce, 1011. 
 staff officers, 1425. 
 Supply Corps, 466, 467. 
 temporary and reserve officers on active duty 
 
 counted as part of, 1549. 
 warrant officers, 509. 
 Oaths administered by, 217-219, 1240. 
 
 1652 
 
INDEX. 
 
 OFFICERS OF THE NAVY— Continued. 
 Oaths of allegiance, 1271. 
 
 of office, 1065, 1066. 
 Official Register of the United States to contain names 
 
 and information concerning, 1236. 
 Pay clerks, status of, 497. 
 Presents to superiors prohibited, 1073. 
 President acts through, 500, 501. 
 Promotion by selection, 1430-1434, 1513. 
 
 line and staff; time for convening boards, 1529. 
 Punishments inflicted upon by commanding officer, 
 
 1002. 
 Rank and pay; Congress may reduce, 910, 911. 
 Reapointment of former officers during war, 1392, 1393. 
 Records considered in examination for promotion, 722. 
 
 submitted to selection boards, 1431. 
 Reduction to another office by court martial, 988. 
 
 to enlisted rating liy court-martial, 524, 988. 
 Relative rank with Army, 662. 
 
 with Marine officers, 667. 
 Residence; in foreign country, 572. 
 
 medical attendance dependent upon, 904. 
 Restoration of, after dismissal; pay, 1178. 
 Secretaries, status of, 525, 527. 
 Service credited for longevity pay, 1535. 
 Shore duty: must be required by public interests, 1191, 
 
 1218, 1219. 
 Steerage; ensigns are, 704. 
 Temporary; status of, 525. 
 
 Thanks of Congress; advanced to rear admiral, 454. 
 Title of master changed to lieutenant, junior grade, 
 1190. 
 of midshipman changed to ensign, junior grade, 
 
 1190. 
 of naval cadet changed to midshipman, 1279. 
 of staff officers, not changed by rank, 1265. 
 Total number of commissioned officers; definition of, 
 
 1424, 1425, 1426. 
 Transfer of ensigns to Construction Corps, 1408. 
 
 of temporary, reserve and Coast Guard officers to 
 
 permanent Na"ST) l^-t9, 1550. 
 to different branch of the service, longevity credit, 
 
 1249. 
 to Naval Reserve Flying Corps, 1454. 
 Two commissions in same office; precedence, 669. 
 offices held by: entitled to compensation which is 
 larger, 472. 
 pay of both not allowed, 950, 951, 1066-1071. 
 Unauthorized office; no salary lor, 1066. 
 Uniforms, etc., sold to, at cost, 1521. 
 Vessel lost or wrecked; authority over crew, 996. 
 Volunteer; transfer to regular Na-\-y, 530. 
 Voting in territories, restrictions on, 1075. 
 Watch and division officers; ensigns assigned as, 704. 
 Witnesses before civil courts, 414. 
 
 in Government service, allowed actual expenses, 
 413. 
 Wrecked or lost vessel; separated from; pay, 891. 
 OFFICERS RESERVE CORPS: 
 
 Government employees, members of; leave of absence 
 reinstatement, 1476. 
 OFFICIAL ENVELOPES: 
 
 See Penalty envelopes. 
 OFFICIAL, REGISTER: 
 
 Officers and employees of United States; data required 
 
 for, 228, 1235, 12:36. 
 Printing and distribution of, 1235, 1236. 
 OIL: 
 
 Estimates and appropriations for. Navy, 1103. 
 
 Sale of, to vessels of Volunteer Patrol Squadrons, 1455. 
 
 OIL LANDS: 
 
 Development of; leases, disposal of products, etc., 1545. 
 Excepted from authority of Secretary of the Navy to 
 
 grant leases, 1419. 
 Leases of naval petroleum reserves, etc., 1532, 1533. 
 OPEN MARKET: 
 
 See Contracts. 
 OPERATIONS: 
 
 See Chief of Naval Operations. 
 
 Surgical; whether naval personnel required to undergo, 
 458, 459. 
 OPINIONS: 
 
 See A ttorney General. 
 OPPRESSION: 
 
 Of subordinates; punishment for in Na\'v, 984. 
 ORAL: 
 
 Examinations; discretionary for promotion, 514. 
 Testimony before stunmary courts-martial, 1006. 
 ORDERS: 
 
 See Disobedience; Waiting orders. 
 Aid or executive; emanatefrom commandingofflcer,670. 
 Appeal to President from Secretary of War, 83. 
 Army officers; accoimting officers can not review, 240, 
 
 241. 
 Chiefs of bureaus; emanate from Secretary of the Navy, 
 
 361, 1418. 
 Disobedience of; accoimting officers can not relieve 
 
 officers from responsibility for, 239, 240. 
 General: violating or refusing obedience to, 985. 
 Illegal, may be defense, 56. 
 not a defense, 55. 
 
 subordinate not boimd to obey, 352. 
 Importance of prompt obedience to, 980. 
 Medical treatment; naval personnel required to sub- 
 mit, 458. 
 Mixed duty; which is paramount, 881. 
 Negligence in obeying; punishment for; Navy, 984. 
 Officer authorized to travel, or traveling by permis- 
 sion, 844, 845. 
 Petty officers, entitled to obedience, 525. 
 President issues through Secretary of the Navy, 342. 
 
 through Secretary of War, 83. 
 Regulations operates as, 196. 
 
 Shore duty, naval officers; recitals in, 1191, 1218, 1219. 
 Travel under; expenses allowed, 1179. 
 mileage aOowed, 840-846. 
 without troops, mileage, 1251. 
 Wording of, not controlling as to character of officer's 
 service, 878, 879. 
 as to character of travel performed, 845. 
 ORDINARY: 
 
 Ships laid up in, 774, 895, 897. 
 ORDINARY DISCHARGE: 
 See Discharge. 
 
 Enlisted men of the Navy, 564, 565, 886. 
 ORDINARY SEAIVLAN: 
 
 Officer reduced to rating of, 988. 
 Rating changed to seaman, second class, 1423. 
 ORDNANCE: 
 
 See Bureaus; Chiefs of bureaus; Contracts; Projectiles; 
 
 Shells. 
 Army; sale of, to naval officers, 1312. 
 
 to other departments, 1388. 
 Loan or gift of condemned, to societies and munici- 
 palities, 1249. 
 Navy, purchase without advertising, 1113. 
 tests of, 1195. 
 
 unlawfully selling, stealing, etc., 990, 1325. 
 Proving operations; regulations to protect navigation, 
 
 1519. 
 Transfer of naval, to War Department, 1515. 
 
 1653 
 
INDEX. 
 
 ORIGINAL ENTRY: 
 
 Defined; officer appointed to higher position in Navy, 
 S30. 
 ORPHANS: 
 
 CliiUiren of deceased enlisted men preferred for civil 
 emplojnnent, 1180. 
 OUTFITS ON FIRST ENLISTMENT: 
 
 Appropriation available for reimbursing naval per- 
 sonnel for lost clothing, etc., 1493. 
 Clothing furnished, Navy, 876, 877, 1203, 1403. 
 OVERHEAD CHARGES: 
 
 Distributed between naval appropriations, 1398. 
 OXEN: 
 
 Estimates and appropriations for purchase and main, 
 tenance, Navy, 1103. 
 PACKING BOXES: 
 
 Estimates and appropriations for, Navy, 1103. 
 PAMPHLETS: 
 
 Restrictions on purchase of, 1073. 
 P.ANA3IA RAILROAD: 
 
 Bonds and contracts; provisions concerning, 1368, 1369. 
 PAPERS: 
 
 Useless; files at navy yards and stations; disposal of, 
 1401. 
 in buildings under control of departments, dis- 
 posal of, 1248. 
 in departments, disposal of, 1202, 1203. 
 on naval vessels, disposal of, 1381. 
 PARADES: 
 
 Marine, and regattas; regulations; enforcement of by 
 
 any head of Department, 1300, 1301. 
 Precedence of line and staff officers in, 704. 
 PARAMOUNT: 
 
 Duty, rule for determining, 881. 
 PARDON: 
 
 Acceptance, 86, 87, 122. 
 
 Amnesty distinguished, 86. 
 
 Conditional, 86. 
 
 Constructive, 86, 573- 
 
 Contempt of court, 84. 
 
 Continuing punishment, remission of, 1052. 
 
 Conviction necessary before recommended, 84. 
 
 Court-martial sentences, remission or mitigation of, 
 
 85, 1009, 1051-1055; 1308. 
 Decisions relating to, 83-89. 
 Deck-court sentences, by reviewing officer, 1308. 
 Defined, 83. 
 
 DeUvery and acceptance, 86, S7, 122. 
 Deserters; effect of, on disqualification to hold office, 
 582. 
 effect of, on forfeiture of citizenship rights, 84,1078. 
 on reenUstment, 551. 
 Effect of, 87. 
 Form of, 87. 
 
 Legislative control of President's power, 85. 
 Loss of numbers, continuing punishment; remission 
 
 of, 1052. 
 Partial, 86. 
 
 Power of officers other than President, 85. 
 Procedure to obtain, 87. 
 Secretary of the Navy, remission of unexecuted portion 
 
 of sentence, 669. 
 .Suspension from rank and grade, continuing punish- 
 ment; remission of, 1052. 
 When may be granted, 84. 
 PARENTS: 
 
 Consent; enlistment of minors, 548-551, 994. 
 
 to enrollment in Naval Reserve Force, 1546. 
 Enlisting minors without consent of; penalty, 994. 
 Statement as to age of minor applj-ing for enlistment, 
 1402, 1403. 
 
 PAROLE: 
 
 Court-martial jurisdiction over man paroled by civil 
 authorities, <i3. 
 PARTIAL: 
 
 Pardon, 86. 
 
 Payments; Navy contracts, 1369. 
 
 Verdict, court-martial finding, 1029. 
 PASSED ASSISTANT DENTAL SURGEONS: 
 
 Appointment, etc., 1421. 
 PASSED ASSISTANT PAYALISTERS: 
 
 S^ee Supply Corps. 
 
 Bonds of, 474. 
 
 Commanding officer not required to act as, 574, 
 
 Defined, 497. 
 
 Promoted from assistant paymasters, 471. 
 to pajTnasters, 471. 
 
 Pay, 793, 802. 
 
 Rank, 676. 
 PASSED ASSISTANT SURGEONS: 
 
 See Medical Corps. 
 
 Commissions to be issued to, 1251. 
 
 Detailed as assistant to Bureau of Medicine and Sur- 
 gery, 466. 
 
 Number of increased, 1416. 
 
 Pay, 793, 802. 
 
 Promoted from assistant surgeons, 1251. 
 to surgeons, 1251. 
 
 Rank, 673, 675, 676. 
 
 Status, 457, 458. 
 PASSENGERS: 
 
 Naval vessels; death; disposition of effects, 995. 
 PASSENGER VEHICLES: 
 
 See Vehicles. 
 PASSPORTS: 
 
 Government officers and employees, 1543. 
 
 PATENTS: 
 
 See Inventions. 
 
 Abandonment of, 1165, 1494, 1501. 
 
 Applications for, expedited by departments interested, 
 1251. 
 Government interested, 1163. 
 
 Boards to pass upon use of by naval vessels, 776. 
 
 Departments interested to be represented before Com- 
 missioner, 1251. 
 
 Officers of the Government may obtain, 1192, 1193. 
 
 Power of Congress, 37. 
 
 Purcliase and use of patented articles connected with 
 naval vessels, 776. 
 
 Secretary of the Interior, supervision of, 395. 
 
 Suit for use of by Government, 1360, 1494, 1502. 
 
 Use of by Government, 37, 1192, 1193, 1360, 1494, 1502. 
 
 Withholding of, during war, 1494, 1501, 1502. 
 PATRIOTISM: 
 
 Commanding officers to show example of, 978, 979. 
 PATROL SQUADRONS: 
 
 Sale of gasoline, etc., to vessels of, 1455. 
 PATTERN 3IAKER: 
 
 Ratings established in Navy, 1495. 
 PAY: 
 
 See Alloiranccs; Pay of civil establishment; Pay of Naval 
 Eslablishmcnf. 
 
 Congress has power to change, 92, 97. 
 
 Defined, 440, 827, 828, 886, 887. 
 
 Definition; allowances excluded, 1496. 
 PAY AND ALLOWANCES: 
 
 Definition of, 828. 948, 953. 
 
 Taxation by States, 48. 
 PAY CLERKS: 
 
 See ^VaTra;H officers. 
 
 Appointment of chief pay clerks and pay clerks as 
 assistant paymasters, 1407. 
 
 1654 
 
IXDEX. 
 
 PAY CLERKS— Continued. 
 Bonds required, 476. 
 Duties, 1406, 1407. 
 Grades of acting pay clerk, pay clerk and chief pay 
 
 clerk estabUshed, 1406, 1407. 
 Marine Corps, 918, 919. 
 number, pay, etc., 1515. 
 reserve ser\'ice credited to, 1529, 1530. 
 retirement and longevity pay; reserve service 
 
 credited for, 1529, 15.30. 
 reverting to status as, after service in Naval Re- 
 serve Force, 1529, 1-530. 
 title of clerks for assistant paymasters changed to, 
 1515. 
 Not part of Supply Corps, 470. 
 Number of chief pay clerks, pay clerks, and acting pay 
 
 clerks, 1406, 1407. 
 Status, 497. 
 PAY CORPS: 
 
 See Supply Corps. 
 
 Name changed to Supply Corps, 1530. 
 PAY DIRECTORS: 
 See Supply Corps. 
 Bonds, 475-476. 
 Pay, 792, 801. 
 Rank, 676, 677, 1427. 
 PAY INSPECTORS: 
 See Supply Corps. 
 Bonds of; 475, 476. 
 Pay, 792, 801. 
 Rank of, 676, 1427. 
 "PAY, MARINE CORPS:" 
 
 See Appropriations; Pay of yaval Establishment. 
 Appropriation; available for payment of claims, lost or 
 damaged property, 1493. 
 available for pajTnent of death gratuity, 1547. 
 credited with deposits by enlisted men, 12y5. 
 Defined as permanent appropriation, 1386. 
 Retainer pay, Marine Corps Reserve, chargeable to, 
 
 1455. 
 Special allowances payable from, 1545. 
 Unexpended balances, 1177, 1178, 1195. 
 PAY1>IASTER GENERAL: 
 
 See Bureaus; Chiefs of bureaus; Supply Corps. 
 
 Appointment, 379. 
 
 Bond, 476. 
 
 Death gratuity; payment; jurisdiction of accounting 
 
 officers, 233, 2:34, 1546, 1547. 
 Prices of issues from naval supply account fixed by, 
 
 1557. 
 Property accounts; audited by; certificate to account- 
 ing officers, 1223. 
 jurisdiction of accounting ofiBcers, 234. 
 Requisitions for supplies made upon: transfer between 
 
 bureaus, 1203. 
 Title conferred on chief of bureau of SuppUes and Ac- 
 counts, 670, 671. 
 PAY3IASTER OF THE FLEET: 
 Appointment of, 474. 
 Pay, 792, SOI. 
 PAY>L\STERS: 
 See Supply Corps. 
 Accounts to be signed by, when men sent from sliip, 
 
 995. 
 Assignment of wages attested by, 892. 
 Bonds, 474. 
 
 Commanding officers not required to act as, 574. 
 Defined; means officers of Supply Corps, 380, 471, 497, 
 
 575. 
 Eflects of deceased persons oa vessels to be secured 
 by, 995. 
 
 PA Yj>IASTERS— Continued. 
 
 Foreign stations; accounts require consular certificate 
 
 as to prices of supplies, 1114. 
 Marine Corps; counted as colonel in making computa- 
 tions, 1460. 
 payment of claims for damaged private property, 
 
 1493. 
 rank, pay and allowances, 929, 1460. 
 Promoted from passed assistant paymasters, 471. 
 Pay, 792, 801. 
 Rank, 676. 
 PAYMASTERS' CLERKS: 
 See Pay clerks. 
 
 Laws relating to repealed, 1407. 
 Pay, 1302. 
 
 Subject to court-martial, 62. 
 PAYMASTER S STEWARD: 
 
 Service as, held to be naval service, 928. 
 PAY]\1ENTS: 
 
 See Contracts; Mistake of fact; Mistake of law . 
 Accounting officers can not require officer to make, 240. 
 Death, enlisted men; eflects lost on sunk or captured 
 
 vessels, 269. 
 Enlisted men on vessels sunk or destroyed, 264. 
 Mandamus proceedings to compel, 256, 257. 
 Merger of claims in checks issued for, 277. 
 "FAY, anSCELLANEOUS:" 
 See Appropriations. 
 
 Appropriation ; available forspecial allowances to naval 
 personnel, 1545. 
 credited with interest, premiums and exchange, 
 1222. 
 PAY OF CIVIL ESTABLISHMENT: 
 See Checkages. 
 
 Absence; as witnesses; actual expenses, 413. 
 unauthorized; forfeiture of pay for, 1297. 
 Additional compensation from Government prohib- 
 ited, 208, 217, 1177. 
 compensation from private parties restricted, 1470. 
 extra duties; restriction on pay of two offices, 1066- 
 
 1071, 1177. 
 not allowed for overtime work in departments, 
 
 1220, 1221. 
 not allowed for service during leave, 1390. 
 restriction on double salaries, 1411. 
 rewards for suggested improvements, 1514. 
 Annual report of, 381, 1194, 1272. 
 Appropriations: exceeding, IISO, 1:384. 
 
 for contingent and miscellaneous purposes not 
 
 available for, 1105. 
 for naval service used for; report of to Congress, 381, 
 
 1194, 1272, 1418, 1419. 
 for new ships; restrictions on use of, 1281. 
 inadequate: right to pay of office, 204-205. 
 lump sum; restrictions on use of, 1307 1389, 1398, 
 1418, 1419, 1491, 1492, 1503. 
 Assistant messengers, 204. 
 
 Changes in statutory grades and number of clerks, 11 SO. 
 Checkages; officer in arrears, 1072. 
 Commences, bonded officer, prior to furnishing bond, 
 
 211. 
 Compensation; defined, 701, 702. 
 
 for disabilities, 1467-1469. 
 Computation, monthly period, thirty-first day, 207. 
 annual or monthly compensation, 1297. 
 for actual service rendered, 1091. 
 Contingent funds not available for, 1105. 
 
 without specific authority, 1188. 
 Copyists, 204. 
 
 Deductions for retirement fund, 1540, 1541. 
 paid on separation from service, etc., 1542. 
 
 1655 
 
INDEX. 
 
 PAY OF CIML ESTABLISIIMKNT— Continued. 
 I>isl)ursing clerks, executive departments, 20i>-210. 
 Double salaries: restrictions on, 208, 1066-1071, 1177, 
 
 1411. 
 Estimates; form of, 1101, 1102. 
 Heads of departments, 19;5. 
 Holidays, 201, 7S1, 782, 1224, 1263. 
 per diem employees, 1194, 1198. 
 regulations part of contract, 787. 
 Incompatible offices, 1069. 
 
 Increase in: not promotion to new office, 208, 341. 
 Indebtedness: withholding pay for, 1072. 
 Insular possessions: period of travel to and from the 
 
 United States, 782, 1278. 
 Laborers, 204. 
 
 Leave of absence: additional pay not allowed for serv- 
 ice during, i:i90. 
 employees at navy yards and stations, 781, 1464. 
 executive departments, 1221, 1263. 
 injury in line of duty, 1468. 
 insular possessions, cumulative, 1417. 
 members of Officers' Reserve Corps, 1476. 
 National Guard members, 1412. 
 Sundays and holidays excluded, 1263. 
 Lump-sum employees; restrictions on, 1307, 1389, 1398, 
 1491, 1492, 1503. 
 Secretary of Navy may fix; report to Congress, . 
 1418, 1419. 
 Messengers, 204. 
 
 Naval Academy: professors and instructors, 1457, 1.535. 
 Professors; quarters, heat, and light; commutation, 
 701. 
 Naval Home; beneficiaries employed at, 1294. 
 Navy yards and stations; rates fixed by Secretary of 
 the Na-^T, 1312, 1313. 
 general provisions relating to, 780-783. 
 wages, how fixed, 1177. 
 Per diem employees, 781-783. 
 
 hoUdays, 7S7, 1194, 1198. 
 Rates of compensation and number of employees lim- 
 ited by appropriations, 205, 1188, 1384, 1409. 
 penalty for violating law fixing, 1384. 
 Recess appointment ; no salarj' if vacancy existed while 
 
 Senate in session, 1066. 
 Reduction of, by executive action, 208. 
 Report of, under Increase of the Navy and other general 
 
 appropriations, 381, 1194, 1272, 1418, 1419. 
 Retired employees, 1536-1543. 
 Salaries of persons employed in departments, 204. 
 Secretary of the Naval Academy, 794, 805. 
 Storekeepers on foreign stations, 847. 
 Suspension of employee, 340, 783. 
 Temporary clerks, 205. 
 
 sessions of Congress, 208. 
 Thirty-first day of month, 207. 
 Transfer of salaries between bureaus; explanation in 
 
 estimates, 1290. 
 Two offices; restriction on double salaries, 1066-1071, 
 
 1177, 1411. 
 Unauthorized office; no salary for, 1066. 
 Waiver of: not allowed, 414, 825. 
 Watchmen, 204. 
 
 Withholding: officer in arrears, 1072. 
 Women, compensation of, 202-204. 
 PAY OF NAVAL ESTABLISIOLENT: 
 
 See Clteckages; Commutation; Grafuities; Heat arid 
 lighl; Length of service; Mileage; Mistake of law; 
 Quarters; Rations; Service. 
 Absence; from duty due to misconduct, 825, 1436. 
 in hands of civil authorities, 588, 589, 871, 9.50. 
 officers; from ship; temporary, 882, 883. 
 
 PAY OF NAVAL ESTABLISHMENT— Continued. 
 Absence; officers of Marine Corps, 941. 
 officers of Navy, S2.3-S25. 
 
 without leave; forfeiture of pay during, 869-871, 
 1297. 
 officer of Navy, 825. 
 Acting assistant surgeons, 527, 529, 530, 802, 1261. 
 chaplains, 802, 1396. 
 ensigns, 799. 
 paymaster, 839. 
 warrant officers, 794, 803. 
 Act of March 3, 1899, 1264-1269. 
 
 March 3, 1899, not to reduce, 1268, 1273. 
 Act of May 13, 1908, 1301-1304. 
 
 May 13, 1908, not to reduce, 1303. 
 August 29, 1916, 1437. 
 Act of August 29, 1916, not to reduce, 14.35, 1437. 
 July 11, 1919, not to reduce, 1.529. 
 May 18, 1920, temporary increases, 1534, 1535. 
 Additional compensation — 
 
 allowed by contractor to naval officer on ocean 
 
 mail vessel. 1217. 
 enlisted men; continuous service, 883-891, 1269, 
 1529, 1530. 
 detained in the service, 555, 556. 
 extra duties; restriction on pay of two offices, 
 
 106'>-1071, 1411. 
 for medals of honor, etc.; enlisted or enrolled nieni 
 
 512, 514, 1275. 1521. 
 for special duty; acting paymaster, 472, 839. 
 aid or executive: captain of the yard, 670. 
 aid to Admiral, 663. 
 aid to rear admiral, 81.VS17, 1.303. 
 assistant to Bureau of Engineering, 1284. 
 Bureau of Medicine and Surgery, 466. 
 Bureau of Navigation, 1222. 
 Bureau of Ordnance, 1261. 
 Bureau of Supplies and Accounts, 127', 
 1272. 
 a\-iation, 817, 818, 865, 1403, 1404, 1438, 1439. 
 chief of bureau, 1302, 1512. 
 Chief of Naval Operations, 1418. 
 commandant. Mare Island navy yard, 815, 
 
 1177. 
 commanding fleets or subdi\-isions thereof, 
 
 1481. 
 detailed as supervisor. New York Harbor, 
 
 1198,1199. 
 detailed to Republic of Haiti, 1416. 
 enlisted men, Na\-y, 865-S67, 1306. 
 foreign shore duty, 1275, 1302. 
 Marine Corps, 941, 948, 1275. 
 naval officers, Sl>^821, 1275, 1302. 
 warrant officers, 1529. 
 warrant officers. Marine Corps, 1474. 
 Judge Advocate General, 1512. 
 marines detailed as cooks, 1299. 
 Navj' mail clerks and assistants, 1306. 
 officers. Navy, 815-821. 
 sea duty and shore duty beyond seas, 1302. 
 sea duty, officers and enlisted men of Marine 
 
 Corps, 1408. 
 services performed for Department of Justice, 
 
 459. 
 shore duty beyond seas, 818-821, 1275, 1302, 
 
 1474, 1529. 
 superintendent of Naval Academy, 1177. 
 for transporting freight, jewels, etc., on naval ves- 
 sel, 985, 9S6. 
 (rom private parties, restricted, 1470. 
 not allowed for detail as superintendent. Naval 
 Observatory, 390. 
 
 1656 
 
INDEX. 
 
 PAT OF NAVAL ESTABLISHMENT— Continued. 
 Additional compensation— Continued. 
 
 not allowed for detail to Coast Survey, 1151. 
 
 for detail to duty underWar Department, 507, 
 
 579. 
 for detail to Lighthouse Service, 1149. 
 for detail to Nautical Almanac Office, 391. 
 not allowed retired officers detailed to schools or 
 
 coUeges, 1247, 1248. 
 restrictions on double salaries, 1066-1071, 1177, 1411. 
 Admiral, 791, 707, 1301, 1481. 
 
 Chief of Naval Operations, 1418. 
 Advancement of officer for heroism; when pay com- 
 mences, 832. 
 Advances; by order of commanding officer, 498. 
 to naval officers, 1472. 
 
 to persons on distant stations, 838, 1099, 1100. 
 Aids, Marine Corps, 941. 
 Aid or executive; additional pay as aid, 670. 
 Aid to acting rear admiral, 577. 
 to Admiral, 663. 
 to rear admirals, 815-817, 1303. 
 to rear admirals; regulations governing; validity 
 of, 785. 
 AUotments, 825, 826, 1497, 1498. 
 defined, 440, 827, 953, 1496. 
 
 enlisted men missing in action; continued pay- 
 ment of, 1520, 1521. 
 increase of; power of Secretary of the Navy, 789. 
 insane patients, 789. 
 
 officers of Navy and Marine Corps, 1249. 
 Appropriations for; contingent and miscellaneous 
 purposes; not available for official compensation, 
 1105. 
 unexpended balances, 1177, 1178, 1195. 
 Army laws applicable to Navy Nurse Corps, 1303, 1304. 
 Arrested by civil authorities, 588,589,871,9.50. 
 Assignment of, by enlisted men, 573, 892. 
 Assistant chief. Bureau of Engineering, 1284. 
 Bureau of Navigation, 1222. 
 Bureau of Ordnance, 1261. 
 Bureau of SuppUes and Accounts, 1271, 1272. 
 Assistant civil engineers, 803. 
 naval constructors, 793, 802. 
 surgeons and assistant paymasters, 793, 802. 
 Attachment of, by creditors, 573, 574. 
 Aviation duty, 817, 818, 1403, 1404, 1438, 1439. 
 
 enUsted men, 865. 
 Base pay, defined, 848, 849, 865. 
 Bonded officer; when pay commences, 478-480, 829. 
 Bonus on discharge; sixty dollars, 877, 878. 
 Brazil; officers detailed to, 1399. 
 Captain of the yard; additional pay as aid, 670. 
 Captains, Navy, 791, 798, 1301, 1302. 
 Captured vessel; officers and men attached to, 891. 
 Chaplains, 793, 802, 1301, 1302, 1303, 1396, 1437. 
 acting, 1.396. 
 
 to receive same pay as other officers, according to 
 rank and service, 1437. 
 Checkages; court-martial sentence required, 1064. 
 officer in arrears, 1072. 
 value of lost property, 788, 1223. 
 Chief machinists, 1314. 
 
 of Naval Operations, 1418. 
 of bureaus, 839, 1302, 1380, 1512. 
 decisions relating to, 371, 372. 
 retired from active service, 377. 
 subsequently retired, 1303. 
 Citizenship; enUsted men; General Order No. 34; 862, 
 
 867, 868. 
 Civil authorities; personnel arrested by, 588, 589, 825, 
 871, 950. 
 
 PAY OF NAVAL ESTABLISHMENT-Continucd. 
 
 Civil employment; retired officers detailed to schools or 
 colleges, 1247, 1248. 
 with contractors; no pay allowed in certain 
 cases, 1250. 
 Civil engineers, 794, 803. 
 CiviUans shipped on naval vessels, 863. 
 Clerks to commanders of squadrons, commandants, 
 
 paymasters, etc., 794, 795, 806. 
 Coast Survey; additional pay not allowed for detail 
 
 to, 1151. 
 Commandant of Mare Island Navy Yard, 815, 1177. 
 Commanders, 791, 798, 1301, 1302. 
 Commanding officers of fleets and subdivisions thereof, 
 
 14S1. 
 Commencement of; bonded officers, 478-480. 
 
 commissioned from graduates of Naval Academy, 
 
 1221, 1222. 
 enUsted men, 869. 
 increase for sea duty and shore duty beyond seas, 
 
 1302. 
 original entry, 829, 830. 
 promotion, 830-838, 1178, 1390. 
 Commissioned officers; Marine Corps; annual pay of 
 grades, 940. 
 Marine Corps; general provisions relating to, 
 
 936-951. 
 Navy; annual pay of grades, 1.301. 
 Navy; general provisions relating to, 795-826. 
 Navy; rank and service govern, 1301, 1437. 
 Commissioned warrant officers, 803, 1267, 1314, 1429, 
 1430. 
 not reduced by act of August 29, 1916; 14.37. 
 not to receive less than warrant officers, 1314. 
 with creditable records and length of service, 
 1429, 1430. 
 Commodores, 791, 798, 1301. 
 on the retired list, 1307. 
 Computation of; annual or monthly compensation 
 826, 1297. 
 for actual service rendered, 1091. 
 Construction corps, 505. 
 
 Constructive service; credited to officers for longevity 
 pay, 821-823, 1268. 
 not credited to officers appointed after March 4, 
 1913; 1390. 
 Contingent appropriations not to be used for official 
 
 compensation, 1105. 
 Continuous-ser\ice pay, enlisted men, 883-891, 1269, 
 
 1529, 1530. 
 Contractors, pay forfeited for employment with, 1250. 
 Court-martial; officer awaiting trial by, 825. 
 prisoners; enUstment expired, 558, 559. 
 suspension of officers by sentence of, 1033. 
 Coxswains, 866. 
 
 Date commences on promotion, 830-838. 
 Date of commission not binding on courts; rank ante- 
 dated on promotion, 835. 
 Death; .six months' pay, 1546, 1547. 
 
 settlement of accounts, 264, 1.305, 1306. 
 Deductions for naval hospital fund, 953, 1159. 
 Dc facto officer; promoted through error, 708, 709. 
 Dental Corps, 806, 1421, 1422, 1473. 
 Deposits, enlisted men; furloughed without pay, 537. 
 Marine Corps, 951, 1295. 
 Navy, 877, 1202. 
 
 rated as mates or appointed as warrant officers, 524. 
 Deserters; chcckagc of reward against pay; unauthor- 
 ized, 1064. 
 forfeiture of pay, 869-871. 
 fraudulently enlisting, 552. 
 
 1657 
 
INDEX. 
 
 PAY OF NAVAL ESTABLISHMENT- Continued. 
 Discharged ofnccr; not qualified for promotion, 630, 
 
 729-734, livj, 1 163. 
 Dismissal illegal; effect of acquiescence, 826. 
 
 officer restored, 1178. 
 Dominican Republic; detailed to, 1502. 
 Double salaries; restrictions on, 208, 1066-1071, 1177, 
 
 1411. 
 Drafted officers of merchant vessels in time of war, 1249. 
 Enlisted men; additional pay not pay of rating, 8S3. 
 assignment of pay, 573, 892. 
 commencement of pay, 869. 
 continuous service pay, 883-891, 1269, 1529, 1530. 
 defined, 886, 890. 
 regular and reserve service credited, 1529, 1530. 
 deductions for naval hospital fund, 953, 1159. 
 detained after expiration of enlistment, 555-562; 
 
 873, 874, 883, 903. 
 discharged and residing on receiving ship pending 
 
 reenlistment, 1201, 1202. 
 discharged three months prior to expiration of 
 
 enUstment, 1381, 1382. 
 distinguished service cross, 865, 1521. 
 extension of enlistment, 872, 1381. 
 
 honorable discharge gratuity and continuous- 
 service pay, 883-891 . 
 final settlement of accounts; duties of command- 
 ing officer, 995. 
 forfeiture of pay, 869-871. 
 fraudulent enlistment, 551, 552, 874. 
 furloughed and recalled to active duty, 890. 
 furloughed and reenlisting, 891. 
 furloughed in lieu of discharge by purchase, 1436. 
 furloughed without pay, 871, 872. 
 
 status of, 537. 
 honorable discharge gratuity, 883-891, 947. 
 hospital corps, 1420. 
 Marine Corps; deposit of savings, 1295. 
 detained in service, 557, 558. 
 sea duty, 1408. 
 
 transferred to Hospital Corps, 555. 
 medal of honor gratuity, 512, 1275, 1521. 
 Naval Academy band, 848, 891, 1355, 1356, 1530. 
 Navy, 847-878, 1302. 
 
 act of May 13, 1908, construed, 863. 
 additional pay for special duty, 865-867. 
 certain specified ratings, 1494, 1495. 
 citizenship, 802, 867, 868. 
 compilation of orders fixing pay and allow- 
 ances, 850-803. 
 continuous service pay and honorable dis- 
 charge gratuity, under personnel act, 12G9. 
 deposit of savings, 877, 1202. 
 detained after expiration of enlistment, 555- 
 
 5G2, 873, 874, 883, 903. 
 General Order No. 34; 802, 807, 808. 
 general provisions relating to, 847-878. 
 leave of absence, 809. 
 longevity, 862, 867, 868. 
 
 what service counts, 1550. 
 mileage and transportation on discharge, 
 
 874-870. 
 pay of certain ratings fixed, 1423. 
 rates to continue until changed by Congress, 
 
 1303. 
 rating advanced or reduced, 868, 869. 
 retired, 872, 873. 
 temporary rates, 1479. 
 
 ten per cent additional; how computed, 863. 
 transferred to Fleet Naval Reserve, 871. 
 on missing vessels, 268. 
 
 PAY OF NAVAL ESTABLISHMENT— Continued. 
 Enlisted men; promoted to pharmacist; when pay 
 commences, 830. 
 ratings may be established by Secretary of the 
 
 Navy, 1552. 
 reenlistment abroad, 555, 556. 
 
 after service in Fleet Naval Reserve, 1450. 
 reenlistment pay, 883-891. 
 
 retired, 872, 873, 890, 1269, 1299, 1303, 1405, 1406, 
 1411,1451, 1514. 
 honorable discharge gratuity and continuous- 
 service pay, 890. 
 sale of wages, etc., to be discouraged, 573. 
 serving as firemen, 878. 
 short term, benefits on discharge and reenlistment, 
 
 1552. 
 special duty; leave of absence, 574. 
 summary court-martial may sentence to loss of 
 pay, 1007. 
 Ensigns, 792, 799, 1301. 
 Estimates; form of, 1101, 1102. 
 
 Examination for promotion; delayed; antedating rank; 
 832. 
 officer absent from vessel during, 709. 
 officer discharged for failure to qualify, 630, 729-734, 
 1189, 1403. 
 Extension of enlistment, 872, 8,83-891, 1381. 
 Flag officer; captain assigned to duty with rank of 
 
 rear admiral, 577. 
 Fleet officers, 474. 
 
 admiral and vice admiral, 1481. 
 Fleet surgeons, fleet paymasters and fleet engineers, 
 
 792, 801. 
 Flying Corps, 1438, 1439. 
 
 Foreign shore duty; detailed to Brazil, Haiti, Domini- 
 can RepubUc and South American Republics, 
 1390, 1410, 1502, 1556. 
 Marine Corps, 941, 948, 1275. 
 naval officers, 818-821, 1275, 1302. 
 under personnel act, 1267. 
 warrant officers, 1529. 
 Marine Corps, 1474. 
 Forfeiture of; absence caused by misconduct, 825, 143t3. 
 absence without leave, 588, 589, 871, 950, 1297. 
 adjudged by deck coiu-ts, 1308. 
 adjudged by summary courts-martial, 1007. 
 court-martial sentence required for, 826. 
 deserters; credited to naval hospital fund, 1273. 
 enlisted men; Marine Corps, 950. 
 
 Navy, 809-871. 
 holding employment with contractors, 1250. 
 retainer pay, Naval Reserve Force, for cause, 1450, 
 1451. 
 Fraudulent enlistment, 551, 552, 874. 
 Furloughed enlisted men, 537, 871, 872, 1436. 
 Marine Corps, on duty at headquarters, 1474. 
 recalled to active duty, 890. 
 reenlisting, 891. 
 Furlough pay; officers of the active list, 583, 82G. 
 officers serving on ocean mail vessels, 1217. 
 retired officers, 617, 910, 915-916. 
 
 not applicable to Marine Corps, 622, 968. 
 General Order No. 34; enlisted men, 862, 867, 8C8. 
 General provisions relating to Marine Corps, 936-953. 
 
 relating to Navy, 791-916. 
 Good-conduct medals, pins and bars, 866, 807. 
 Gratuities; honorable discharge, 883-891. 
 honorable discharge; Marine Corps, 947. 
 medal of honor men, 512, 514, 1275, 1521. 
 Gun captains and gun pointers, 866. 
 Gunnery sergeants, 950, 1383. 
 
 1658 
 
INDEX. 
 
 PAY OF NAVAL ESTABLISHIVIEIVT— Continued. 
 Highest pay, defined, 882. 
 
 shore-duty pay; assistant to Bureau of Medicine 
 and Surgery, 466. 
 Honorable-discharge gratuity, 883-891, 947. 
 Hospital corps, 847. 
 Incompatible offices, 1069. 
 
 Indebtedness, enlisted men; travel allowance on dis- 
 charge not withheld for, 876. 
 
 erdistedmen; under previous enlistment, 245. 
 
 officers; pay withheld for, 1072. 
 Insane patients, naval service, 788, 7S9. 
 Instilar force, 863, 864. 
 
 Insular force; detention after enlistment expires, 558. 
 Interned officers, in neutral country, 892. 
 Judge Advocate General, 371, 1186, 1512. 
 
 after retirement, 377. 
 Leave of absence; enlisted men, 869. 
 
 officers. Marine Corps, 941. 
 
 officers. Navy, 823-S25. 
 
 special duty, 574. 
 
 warrant officers, 1430. 
 Lieutenant commanders, 792, 798, 1301, 1302. 
 Lieutenants, junior grade, 792, 799, 1301. 
 
 Navy, 792, 799, 1301. 
 Lighthouse Service; additional compensation not 
 
 allowed for detail to, 1149. 
 Longevity; enUsted men. Marine Corps, 942, 946. 
 
 enUsted men. Navy, S62, 867, 868, 1550. 
 
 officers, Marine Corps, 940, 941, 949. 
 
 Marine Corps; what service credited, 927, 928, 
 
 1529, 1535. 
 Navy, 821-823, 1301, 1302. 
 
 constructive service credited, 1268. 
 constructive service not credited, 1390. 
 what service credited, 1529, 1535, 1550. 
 
 service as commandant's clerk, 534. 
 
 retired officers, 908, 909. 
 Machinists, 1269. 
 
 Mare Island Navj' Yard; commandant, 1177. 
 Marme band, 951, 952, 1463, 1464. 
 Marine Corps; absence of enlisted men; arrested by 
 civU authorities, 950. 
 
 absence of officers from duty, 825, 941, 1436. 
 
 aids, 941. 
 
 Army act of May 11, 1908; 940, 941. 
 
 Army laws applicable to, 940-943. 
 
 brevet pay, 932. 
 
 clerical duty, enlisted men, 1474. 
 
 cooks, additional for enlisted men detailed as, 1299. 
 
 deductions for naval hospital fimd, 953, 1159. 
 
 deposit of savings, 951, 1295. 
 
 enlistment allowance, 942. 
 
 extra duty pay, 942, 946. 
 restrictions on, 1315. 
 
 foreign shore service, 941, 948, 1275. 
 
 forfeiture, enlisted men, 950. 
 
 general provisions relating to, 936-954. 
 
 gunnery sergeants, 950, 13S3. 
 
 laws relating specifically to, 936-940. 
 
 longe\^ty, officers, 940, 941, 949. 
 
 marksmen, etc., enlisted men, 942. 
 
 mounted pay, 940. 
 
 overpaid, by mistake of law; 951. 
 
 pay grades, enUsted men, 945. 
 
 pay of two offices not allowed, 950, 951. 
 
 rates of pay, enlisted men, 942, 945. 
 
 rates of pay, officers, 940, 941. 
 
 reenUstment pay; honorable discharge gratuity, 
 883-891, 947. 
 
 retired officers, 965. 
 
 senior staff officers, 1460. 
 
 PAT OF NAVAL ESTABLISH>IENT-Continued. 
 Marine Corps; specialist ratings, enlisted men, 942, 
 946. 
 special quaUflcations, details, etc., enlisted men, 
 
 947, 94S. 
 temporary increases, 941, 942. 
 Marine gimncrs, 1462. 
 Mates, 521, 522, 792, 800, 864. 
 
 retired; honorable discharge gratuity and con- 
 tinuous service pay, 890, 891. 
 Medal-of-honor gratuity, 512, 514, 1275, 1521. 
 Medical attendance not pay, but an allowance, 440. 
 Medical Corps; officer detailed as assistant to Bureau, 
 
 466. 
 Medical directors and inspectors, 792, 801. 
 Mess attendants and cooks, 864. 
 
 sergeants, 942. 
 Midshipmen, 792, 799, 1302. 
 leave of absence, 764. 
 students from Philippine Islands allowed same 
 
 pay as, 1424. 
 suspended without pay, 755. 
 Monthly computation of, 826, 1297. 
 Nautical Almanac; officer in charge of, 391. 
 Naval Academy Band, 848, 891, 1355, 1356, 1530. 
 Naval constructors, 793, 802. 
 Naval hospital fund, deductions for, 953, 1159. 
 Naval Reseri-e Force, active duty, 808, 809, 1447. 
 active duty credited to regular officers and en- 
 listed men, 1529, 1530. 
 active duty in time of peace; retainer pay not 
 
 allowed, 1510. 
 active duty; longevity, how computed, 1511. 
 court-martial deductions, 814. 
 court-martial; member awaiting trial by, 814. 
 deduction for hospital fund, 814. 
 enlisted men transferred to Fleet Naval Reserve, 
 
 871. 
 general provisions relating to, 808-815, 1442-1455. 
 holding other offices, 812, 1446. 
 honorable discharge gratuity and continuous 
 
 ser\-ice pay, 889, 890. 
 medals of honor, etc., additional pay, 1521. 
 retainer pay, 809-812. 
 
 after confirmation, 1509. 
 
 appropriation chargeable, 1455. 
 
 before confirmation, 1445. 
 
 conditions of payment, 1445. 
 
 enrolled men. Fleet Naval Reserve, 1449. 
 
 Fleet Naval Reserve, increased on reenroll- 
 
 ment, 1450. 
 forfeited for cause. Fleet Naval Reserve, 1450, 
 
 1451. 
 Fleet Naval Reserve; minimum service not 
 
 performed, 1449. 
 increased for heroism and good -conduct meda's, 
 
 1450. 
 increased on reenrollment, 1445, 1446. 
 Naval AuxiUarj- Reserve, 1453. 
 Naval Reserve Flying Corps, 1454. 
 not allowed in time of peace when on duty, 
 
 1510. 
 not reduced by appointment as officer, 1444, 
 
 1451. 
 transferred members of Fleet Naval Reserve, 
 
 1450. 
 when paid, 1446. 
 while on active duty, 1445, 1510. 
 withheld for cause, 1450, 1451, 1546, 1552. 
 retired, 814, 815. 
 travel allowance, 813, 814. 
 unauthorized absence, 814. 
 
 54641°— 22- 
 
 -105 
 
 1659 
 
INDEX. 
 
 PAT OF NAVAL ESTABLISHMENT-Continued. 
 Naval Reserve Force, uniform gratuity, 812, 813. 
 
 when not actively employed, 1H7. 
 Navy cross, enlisted man, additional pay, 865. 
 Navy mailclerksandassistants, 86.5,1306. 
 Nurse Corps, female, 807, 1303, 1304. 
 Ocean mail vessels; officers on, allowed furlough pay, 
 
 1217. 
 Officers, Navy; Army pay extended to, 1267. 
 general provisions relating to, 795-826. 
 rates of, 791-S26. 
 
 same pay according to rank and length of service, 
 1301, 1437. 
 Old Navy pay retained for officers where higher than 
 
 new rates, 1273. 
 One year's pay on discharge; oflScer failing to pass 
 
 examination, 630, 729-734, 11S9, 1463. 
 Overpayment; mistake of law; right of Government 
 
 to recover, 951. 
 Original entry, defined; officer accepting another 
 
 position in Navy, 830. 
 Passed assistant surgeons and passed assistant pay- 
 masters, 793, 802. 
 Pay and allowances, defined, 948, 953. 
 
 commutation not pay, 953. 
 Pay clerks, acting pay clerks and chief pay clerks, 
 1406, 1407. . 
 Marine Corps, 950, 1515. 
 
 Marine Corps; longevity pay; reserve service, 1529, 
 1530. 
 Pay defined, 440, 827, 828, 886, 887, 1496. 
 Pay directors and inspectors, 792, 801. 
 Paymasters, 792, 801. 
 
 clerks, 1302. 
 Pay of rating, defined; additional pay not included, 883. 
 Pay proper defined; commutation of quarters not, 702. 
 Personnel act not to reduce pay which commissioned 
 
 officers would otherwise receive, 1268, 1273. 
 Petty officers' certificates, 866. 
 Pharmacists and chief pharmacists, 1420. 
 Prisoners; during confinement and on discharge, 1310, 
 1311. 
 officers held by civil or military authorities, 825. 
 of war, 891. 
 Professors of mathematics, 794, 803. 
 Promotion; commencement of pay on, 830-838, 1178, 
 1390. 
 date of rank; officer advanced for heroism, 734-736. 
 of warrant officers not to reduce their pay, 1314. 
 Quartermaster clerks, 1462. 
 
 Rank; dental officers may receive pay of higher, 1421. 
 of commissioned officers, Navj', basis of pay, 1301, 
 1437. 
 Ratings advanced or reduced; enlisted men, Navy, 
 
 868, 869. 
 Rear admirals, 791, 797. 
 
 first and second nine, 1301. 
 officers acting as, with rank of flag officer, 577. 
 two grades for pay purposes, 447, 064, 665. 
 upper and lower half, line and staff, 1429. 
 Recess appointment; no salary if vacancy existed 
 
 while Senate in session, 1066. 
 Reduction not to result from acts changing, 1268, 1273, 
 1303, 1435, 1529. 
 of, without statutory authority, 826, 844, 845. 
 Reserve nurses on active duty, 1303, 1304. 
 Resignation of officer; date efTective, 826. 
 Retainer pay, Naval Reserve Force, 809-812. 
 Retired- 
 chiefs of bureaus and Judge Advocate General, 377, 
 673, 1303. 
 
 PAY OF NAVAL EST.ABLISHMENT— Continued. 
 Retired — Continued . 
 
 enlisted men, 872, 873, 1269, 1299. 
 active duty, 1405, 1406, 1451. 
 
 promotion, 1514. 
 Navy, based on pay of active list, 1303. 
 restrictions on double salaries not applicable 
 to, 1411. 
 members. Naval Reserve Force; physical disa- 
 bility, 1549. 
 
 members, Naval Reserve Force, 20 years' service, 
 1446. 
 .30 years' service, 1451. 
 officers, 906, 963. 
 
 active duty, 913-915, 1380, 1381, 1437. 
 
 ill time of war or emergency, 1512, 1513. 
 warrant and commissioned warrant 
 officers, 1503, 1504. 
 age ineligibility for promotion, 1434. 
 based on pay of active list, 1303. 
 Chief of Naval Operations, 1418. 
 chiefs of bureaus subsequently retired, 1303. 
 Civil War service, 1266, 1293, 1312. 
 commencement of retired pay, 912. 
 commodores, 1307. 
 
 Congress may reduce rank and pay of, 910, 911. 
 dental corps, 1422. 
 detailed to educational institutions, 439, 440, 
 
 1247, 1248. 
 disability not incident of the service; furlough 
 
 pay, 617, 915, 916. 
 general legislation, whether applicable to, 
 
 633, 634, 832, 908. 
 general provisions relating to, 906-916, %3-970. 
 holding position as Member of Congress, 643. 
 Marine Corps, 963-970. 
 not increased after retirement, 1189. 
 not increased or reduced by personnel act, 1268. 
 not recommended for promotion, 597, 911. 
 one year's pay when wholly retired, 617,621. 
 pay is salary, 911. 
 pay is not a pension, 635. 
 President's action illegal, 622. 
 promoted on retired list, 912, 913. 
 promotion pending when retired; subse- 
 quently confirmed, 832. 
 restriction on double salaries not applicable to, 
 
 1411. 
 sea duty increase not included in computation, 
 
 1307. 
 sea pay allowed in certain cases, 1380. 
 thirty years' service; based on highest pay of 
 
 grade, 1303. 
 transferred from furlough to retired pay list, 
 
 916. 
 voluntarily retired to create vacancies, 1265, 
 1380. 
 Revised Statutes relating to; general provisions, 791. 
 Sea duty; definition of; decisions relating to, 878-883. 
 increase allowed retired officers in certain cases, 
 1265, 1380. 
 not included in computing, retired officers. 
 
 Navy, 1307. 
 when begins and ends, 881, 882. 
 leave of absence, midshipman, 764. 
 Marine Corps, 948, 1408. 
 naval officers, 878-883, 1302. 
 
 absent; undergoing examination for promotion, 
 709. 
 Seamen gunners' certificates, 866. 
 Sea pay allowed for shore duty, 882. 
 
 1660 
 
J^DEX. 
 
 PAY OF NAVAL ESTABLISHMENT— Continued. 
 Sea pay allowed for shore duty — 
 
 comiaandant, Mare Island navy yard, 1177. 
 
 estimates to show in detail, 1312. 
 
 officer detailed as supervisor. New York Harbor, 
 
 1198, 1199. 
 superintendent. Naval Academy, 1177. 
 warrant officers; foreign shore duty, 1529. 
 Secretaries to admirals, vice admirals and commanders 
 
 of squadrons, 455, 794, 805. 
 Secretary of the Naval Academy, 794, 805. 
 Ship's tailors and sliip's helpers, 866. 
 Shore duty; assistant to Bureau of Medicine and Sur- 
 gery, 466. 
 beyond seas, Marine Corps, 941, 948, 1275, 1474. 
 beyond seas, naval officers, 818-821, 1275, 1302, 1529. 
 beyond seas, under personnel act, 1267. 
 officer in charge of Nautical Almanac, 391. 
 sea pay aUowed for, 882, 1177, 1198, 1199, 1312, 1529. 
 superintendent of Naval Observatory, 390. 
 under personnel act, 1267. 
 South American Republics; officers detailed to, 1399, 
 
 1556. 
 Special act reappointing officer, 830. 
 Special act restoring officer to former rank, 733. 
 Stoppage of, requires court-martial sentence, 1064. 
 Storekeepers on foreign stations, 846, 847. 
 Submarine duty, 865, 866. 
 Summary court-martial may sentence to loss of pay, 
 
 1007. 
 Superintendent of Naval Academy, 815, 1177. 
 
 of Naval Observatory, 390. 
 Supervisor of New York Harbor; sea pay allowed to, 
 
 1198. 
 Suspension of midshipman without pay; not entitled 
 to allowances, 828. 
 of officer by court-martial sentence, 1033. 
 Surgeons, 792, 801. 
 
 Temporary increases; act of May 18, 1920; 1534-1535. 
 Termination of, 826. 
 
 Two offices; entitled to compensation which is larger, 
 389, 472. 
 not entitled to pay of both, 839. 
 restriction on double salaries, 1066-1071, 1177, 1411. 
 Unauthorized office; no salary for, 1066. 
 Vacancy defined; commencement of pay on promo- 
 tion, 832. 
 Vessel sunk or destroyed; payment of arrears due en- 
 listed men, 264. 
 Vice admirals, 791, 797, 1481. 
 Volunteers, 829. 
 
 Waiting orders, officers of Navy, 700, 824, 825. 
 Waiver of pay or allowances, 208, 414, 561, 825, 844, 845, 
 
 877. 
 Warrant officers, 794, 803, 1267, 1302, 1472. 
 commissioned, 803, 1267, 1314, 1429, 1430. 
 foreign shore duty, 1529. • 
 leave of absence, 1430. 
 machinists, 1269. 
 Marine Corps, 1462. 
 
 foreign shore duty, 1474. 
 Navy and Marine Corps; longevity pay; reserve 
 
 service, 1529, 1530. 
 on promotion not to suffer reduction, 1314. 
 pharmacists, 1420. 
 shore duty, 1472. 
 Withholding; officer in arrears, 1072. 
 Wrecked vessels; officers and men separated from, 891. 
 "PAY OF THE NAVY:" 
 
 See A ppropriations; Pay of Natal Establishment. 
 Appropriation available for cost of medals, crosses 
 and barSj etc., 1522. 
 
 "PAY OF THE NAVY"— Continued. 
 
 Appropriation available for death gratuity, 1.547. 
 
 for payment of claims for damaged property, 1493. 
 Defined as permanent appropriation, 1386. 
 Estimates of appropriations for, 1312. 
 Naval Academy band; compensation payable from, 
 
 1355. 
 Retainer pay, Naval Reserve Force, chargeable to, 
 
 1455. 
 Unexpended balances, 1177, 1178, 1195. 
 Use of appropriation, 515. 
 
 restricted to its legitimate purpose, 1183. 
 PAY PROPER: 
 
 Definition of, 702, 828. 
 PEACE: 
 
 Desertion, etc., in time of; punishment, Navy, 985. 
 Dismissal of naval officers in time of, 441, 1010-1014. 
 Time of, construed, 1010, 1011. 
 
 purchase of discharge by enlisted men during, 1222. 
 PEARL HARBOR: 
 
 Rules governing navigation, anchorage, etc., 1382. 
 PENAL: 
 
 See Crimes. 
 Code, 1316-1355. 
 Laws, defined, 8. 
 
 interpretation of, 23. 
 Statutes, act requiring discharge of officer for moral 
 unfitness; held not, 628. 
 PENALTY: 
 
 Bidders for contracts delinquent, charged with difler- 
 
 encein cost, 1112, 1113. 
 Contractor dehnquent; liquidated damages, 1111,1113, 
 or sureties defaulting; subsequent bids by, re- 
 jected, 1114. 
 Contracts; officer omitting to file return in returns 
 office, 1119. 
 PENALTY ENVELOPES: 
 
 Authority to use; endorsements on; registered mail, 
 
 1185,1186. 
 Correspondence with foreign countries, 329. 
 Fraudulent use of, 1345. 
 Loan of frank forbidden, 1291. 
 Official business, free of postage, 1181. 
 Self-addressed, inclosed in letters to Congress requiring 
 
 answers, 1191. 
 Universal postal convention regarding, 329. 
 Use of, 1291. 
 PENITENTIARIES : 
 See Prisons. 
 
 Atlanta; products used by naval forces, 1519, 1520. 
 Naval courts-martial may sentence to imprisonment, 
 in, 983, 984. 
 officers imprisoned in; dropped from roUs, 1503. 
 Prisoners in not to be hired out, 1198. 
 PENNANTS: 
 
 Naval Raserve Force; not to be flown in lieu of national 
 ensign, 1448. 
 use of by members commanding merchant vessels, 
 1448. 
 PENSIONS: 
 
 Allowance in addition to, 1155. 
 Duties of Commissioner of Pensions, 396. 
 General provisions relating to, 1153-1157. 
 Insane persons in Saint Elizabeths; payment of, 789. 
 Jurisdiction of Commissioner; retirement of civil em- 
 ployees, 1538. 
 of Commissioner and Secretary of the Navy, 1155. 
 Laws not applicable to persons in service October 6, 
 
 1917, or thereafter, 1500. 
 Medal-of-honor roll. Navy Department; special pen- 
 sion, 1410, 1411. 
 
 1661 
 
INDEX. 
 
 PENSIONS— Continued. 
 
 Naval Home inmates; disposition of, lau, 1595. 
 
 Naval hospitals allowed, for inmates, 1160, 1161, 1261. 
 
 Not allowed persons in naval sor\ice, active or retired, 
 1217, 1218. 
 
 Power of Congress to allow, 47. 
 
 Retired pay held not to be, 0:55. 
 
 Secretary of the Interior, supervision of, 395. 
 
 Service; enlisted men of specified service entitled to, 
 IIM, 1155. 
 
 War risk compensation not allowed in addition to, 1499. 
 substituted for, 1500. 
 PENSION FUND: 
 
 Navy, 1103, 1146, 1153-1156, 1261, 1395, 1472, 1503. 
 PER DIEM: 
 
 See Civil establishment; Pay of civil establishment; Wit- 
 nesses. 
 
 Persons attending courts-martial and courts of inquiry; 
 estimates and appropriations for, Na\'y, 1103. 
 PERIODICALS: 
 
 Authority of law necessary for printing of by Govern- 
 ment, 1525. 
 
 Payment for subscriptions in advance, 1401, 1408. 
 
 Restriction.s on purchase of, 1073, 1261. 
 PERJURY: 
 
 Claims against United States, 990. 
 
 Fal.se returns of contracts; evidence in prosecution, 428 
 
 Naval courts-martial; how punished, 1021. 
 courts-martial; prosecutions for, 431.- 
 
 Punishment, 1335. 
 
 State jurisdiction when committed in Federal court, 53. 
 
 Subornation of; punishment, 1335. 
 
 Testimony before congressional committees, 421. 
 PERMANENT: 
 
 Appropriations, defined, 1386. 
 Navy Department, 1106, 1107. 
 
 Change of station; transportation furnished, 1535, 1536. 
 
 Definition of; incapacity for duty, 598. 
 
 Station; defined, 1536. 
 PERSON: 
 
 Defined, 185, 1355. 
 PERSONAL EFFECTS: 
 
 S,f:e Effects. 
 PERSONNEL ACT: 
 
 March 3, 1899; 1263-1271. 
 PETITIONS: 
 
 Civil employees to Congress or members thereof, 1388. 
 PETROLEUM RESERVES: 
 
 See Naval petroleum reserves. 
 PETTY OFFICERS: 
 
 See Enlisted men. 
 
 Additional pay, enlisted men holding petty oflacer's 
 certificates, 866. 
 
 Definition of, 525. 
 
 Entitled to obedience, 525. 
 
 Mates held to be, 518. 
 
 " Noncommissioned officers" includes, 441. 
 
 Punishments inflicted upon by commanding oflBcer, 
 1002. 
 
 Summary courts-martial may punish, 1006. 
 PHARMACISTS: 
 
 See Pay of Naval Establishment; Warrant officers. 
 
 Number and appointment of, etc., 1262, 1419, 1420. 
 
 Removable in the discretion of the Secretary of the 
 Navy, 1262. 
 PHILIPPINE INSURRECTION: 
 
 Whether constituted a state of war, 272. 
 PHILIPPINE ISLANDS: 
 
 Citizenship in, 113, 1506. 
 
 Civil employees, 782. 
 
 pay while in transit, 1278. 
 
 PHILIPPINE ISLANDS-Continued. 
 
 Civil office in; military officer may discharge special 
 duties without holding, 1075. 
 
 Jurisdiction of courts over naval vessels, 67. 
 
 Marine brigade; status and discipline of, 955. 
 
 Naturalization of natives, 1500. 
 
 Nautical school ; loan of naval vessel and enlisted men, 
 etc., to, 1297, 1298. 
 
 Shore duty in; additional pay allowed, 1275. 
 
 Students for instruction at Naval Academy, 743, 1424. 
 
 United States held not to include, 1015. 
 PHOTOGRAPHS: 
 
 Restrictions on, in departmental publications, 1284. 
 PHYSICAL: 
 
 Examinations for promotion. Navy, 707-710. 
 PHYSICAL INCAPACITY: 
 
 Definition of, 598. 
 PICKLES: 
 
 Purchase of for Navy, 1115. 
 PICTURES: 
 
 Prize fights; films, etc., 1371, 1372. 
 PILOTAGE: 
 
 Estimates and appropriations for, Na\'y, 1103. 
 
 State discrimination against national vessels forbidden, 
 1130. 
 PILOT CHARTS: 
 
 Preparation and publication of, 388. 
 PILOTS: 
 
 Licenses as, not required of officers of public vessels, 
 1135, 1136. 
 
 Rules for the government of, 1135. 
 
 State laws requiring, 50. 
 PINKERTON DETECTIVE AGENCY: 
 
 Arrest of deserters, 118. 
 
 Employment of, forbidden, 1220. 
 PIRACY: 
 
 Power of Congress to define and punish, 38. 
 
 Punishment, etc., 1351-1353. 
 
 Use of naval vessels to suppress, 1130, 1131. 
 PLANS: 
 
 Confidential; filing of in Returns Office, 397. 
 
 Public works and buildings; to accompany estimates 
 submitted to Congress, 1102. 
 
 Relating to national defense; losing, stealing, etc., 1483. 
 PLATES: 
 
 Engraved; Wilkes's Expedition, 380. 
 PLEA IN BAR: 
 
 See Courts-martial; Jeopardy. 
 PLEDGE: 
 
 Receiving public property as, from unauthorized per- 
 son; punishment. Navy, 990. 
 PLUCKING BOARD: 
 
 Creation of board for retirement of ofiicers, 1266. 
 
 Repeal of law providing for involuntary retirement, 
 1403. 
 PLUNDERING: 
 
 Inhabitants on shore, punishment. Navy, 985. 
 PLURAL: 
 
 Includes singular in Federal statutes, 185, 1355. 
 POISONS: 
 
 Mailing of; punishment, 1342, 1343. 
 POLICE DUTIES: 
 
 Extra; summary court-martial may adjudge, 1007. 
 POLITICAL: 
 
 Considerations; employment of laborers at navy yards, 
 780. 
 
 Contributions; constitutionaUty of statutes prohibit- 
 ing, 340. 
 oflenses connected with soliciting, giving, etc., 
 
 1334, 1335. 
 prohibited, 783. 
 
 1662 
 
INDEX. 
 
 POLITIC Air— Continued . 
 
 Contributions; prohibited; executive oflBcers and em- 
 ployees, IISO, llSl. 
 
 Questions; jurisdiction of courts, 104. 
 POLL, TAXES: 
 
 Persons in Navy, 48. 
 PORTO RICO: 
 
 Census taken of, 1525. 
 
 Citizenship in, 113, 1506. 
 
 Civil employees; pay while in transit, 1278. 
 offices in; holding of by naval oflBcer, 1075. 
 
 Midshipmen appointed from, 742, 1281. 
 
 Naturalization of inhabitants, 1506. 
 
 Status of; held to be a territory, 1075. 
 is within the United States, 438. 
 PORTS: 
 
 See Foreign port. 
 
 Collector of; inspection of naval vessels, 260. 
 
 Home port of naval vessel; change of, 1536. 
 
 Naval vessels laid up in ordinary in, 774. 
 
 United States; port in Guam, 112. 
 POSSESSIONS: 
 
 See Insular 'possessions; Military government; Territo- 
 ries. 
 POSTAGE: 
 
 See Penalty envelopes. 
 
 Collecting excessive, 1339, 1340. 
 
 Estimates and appropriations for, Navy, 1103. 
 
 Failure to account for amount due, 1340. 
 
 Fraudulently using penalty envelopes to avoid, 1345. 
 
 Penalty envelopes; authority to use; indorsements on; 
 registered mail, 1185, 11S6. 
 official business, without postage, llSl, 1291. 
 
 Stamps; unlawfully pledging or selling, 1340. 
 POSTAL FUNDS: 
 
 See Crimes; Public moneys. 
 POSTAL SERVICE: 
 
 Arrangements with foreign countries, 329. 
 
 Laws and regulationsof , govern Na\'y mail clerks and 
 assistants, 1306. 
 
 Oath of office, 328. 
 
 Offenses against, 1337-1345. 
 POST3IASTER GENERAL: 
 
 Bonds of Navy mail clerks and assistants to be in 
 amounts fixed by, 1387, 1388. 
 
 Duties of, 329. 
 
 Envelopes for departments procured by, including 
 printing, 1239, 1240, 1291. 
 
 Navy mail clerks designated by, 1306. 
 
 Ocean mail vessels not to be employed by, unless 
 approved by Secretary of the Navy, 1216, 1217. 
 
 Report to, of inspection made by naval officer of ocean 
 mail vessel, 1216, 1217. 
 POSTMASTERS: 
 
 Recruits enlisted by, 1419. 
 POST-MORTEM EXAMINATIONS: 
 
 Authority of naval medical officers to perform autop- 
 sies, 460, 461. 
 POST OFFICE DEPARTMENT: 
 
 General provisions relating to 327-329. 
 
 Ocean mail vessels constructed, subject to approval 
 of Secretary of the Navy, 1216. 
 POWDER: 
 
 See Explosives. 
 
 Inspection of, by States, 49. 
 
 Purchase of gunpowder without advertising, 1113. 
 POWER OF ATTORNEY: 
 
 Assignment of claims against the United States, 1093. 
 
 Assignment of wages by enlisted men, 573, 892. 
 
 Forgery of, 1322, 1323. 
 
 PRECEDENCE: 
 
 Advancement in numbers; effect on, 652, 691, 1429. 
 Aid or executive of commanding officer, 669. 
 Army and Marine Corps, 930, 931. 
 
 and Navy, 602, 667. 
 
 Navy and Marine Corps, 931. 
 Assistant civil engineers, 1474. 
 
 surgeons, 1426. 
 Brigadier generals and rear admirals of lower half, 665- 
 
 667, 1501. 
 Chief of Naval Operations, 1418. 
 Chiefs of bureaus, 367-371. 
 Coast and Geodetic Survey, members serving with ■ 
 
 Navy, 1480. 
 Coast Guard and Navy officers, 705, 1456. 
 Coast Guard officers appointed to permanent Navy, 
 
 1550. 
 Commanding officers and subordinates having earlier 
 date of commission, 576. 
 
 of vessels and naval stations, 669. 
 Commissions numbered when issued on same date, 669. 
 Conflict in statutes relating to, 690, 691. 
 Constructive service credited for, 691, 694, 1390. 
 Courts-martial, members of, 704, 1016. 
 Date of commission governs; all officers entering Na\T 
 after March 4, 1913; 1390. 
 
 Army and Navy officers of corresponding grade, 
 667. 
 
 Coast Guard and Navy, 1456. 
 
 dental officers, 1421. 
 
 line officers, 668. 
 
 Marine Corps and Navy, 667. 
 
 Naval Reserve Force, 1511. 
 
 staff officers, 1429. 
 Date stated in commission determines, 652. 
 Dental officers, Na\-y, 1421. 
 Effect of, on promotion, 693, 694. 
 General provisions relating to, 662-706. 
 Graduates of Naval Academy, 687, 765. 
 Importance of questions involving, 689. 
 Length of service, computation of, 691. 
 
 line and staff officers, 689-695. 
 
 officers having same date of commission, 668. 
 Line and staff officers, in processions, courts-martial, 
 and boards, etc., 704. 
 
 length of service, 689-695. 
 Line officers, 668. 
 
 detailed to engineering duty, 1435. 
 Loss of numbers; effect of, 691, 1429. 
 Marine Corps and Navy, 667. 
 
 Marine officers, reinstated or given probationary ap- 
 pointments, 1461, 1462. 
 Medical officers, 1426. 
 
 not disturbed by act of August 29, 1916; 1480, 1481. 
 Midshipmen appointed after graduation, 687, 765. 
 Naval Resers-e Force officers appointed to permanent 
 Navy, 1550. 
 
 and regular Navy, 1511. 
 Promotion by selection, effect on, 652, 669, 694, 1433. 
 Rear admirals and brigadier generals, 665-667, 1501. 
 Regulations governing; right to change, 466. 
 
 validity of, 785. 
 Retired officers, 704. 
 
 commanding squadrons in time of war, 660. 
 Rule for determining; graduates of Naval Academy, 
 
 689. 
 Secretary of the Navy has authority to determine, 667, 
 
 668. 
 Selected officers, how determined, 652, 669, 694, 1433. 
 Staff officers; advancement in rank according to, 1426. 
 
 1663 
 
INDEX. 
 
 PRECEDENCE— Continued. 
 
 Staff officers; date of commission, 1390, 1429. 
 length of service, CS9-695. 
 not entitled to additional nuarters by virtue of, 
 
 695. 
 transferred from temporary and reserve service, 
 
 1.550. 
 who have gained or lost numbers, 691, 1429. 
 Staff and line officers, 689-695, 704. 
 Suspension, officers under, 668, 669. 
 Temporary commission, 669. 
 Temporary officers appointed to permanent Navy, 
 
 1550. 
 Two commissions in same rank, 669. 
 Warrant officers, 1269. 
 PRECEPTS: 
 
 General courts-martial, 1015, 1018. 
 PREFERENCE: 
 
 See Civil establishment; Discharge; Soldiers and sailors. 
 PREMIUMS: 
 See Bonds. 
 
 Bonds, rate chargeable, etc., 21 1 . 
 Recruiting expenses ; estimates and appropriations for, 
 
 1103. 
 Sale of bills of exchange: credited to pay, miscella- 
 neous, 1222. 
 PRESENCE: 
 See Absence. 
 
 Accused; decisions relating to, 126-128, 1030. 
 Candidate before promotion board, 723, 728. 
 PRESENTS: 
 
 Contributions for, t o superiors, 1073. 
 Foreign; acceptance of, by officers, 75. 
 
 Governments to tender to officers through State 
 Department, 1187. 
 Superior officials not to accept, 1073. 
 PRESENT TENSE: 
 
 Includes future, in construing criminal code, 1355. 
 PRESERVED 3IEATS: 
 
 Purchase of, for Navy, 1115. 
 PRESIDENT: 
 
 &ee Appointments; Commission; Courts-martial; Dele- 
 gation of powers; Recess appointments. 
 Acting assistant surgeons appointed by, 1261. 
 Acts through heads of departments, 191. 
 
 through officers of the Navy, 191, 500, 501. 
 through Secretary of the Navy, 342, 343, 344, 474, 
 500, 586, 642, 643, 787, 956, 957. 
 Appeals to, 79. 
 
 in military cases, 83. 
 Appointments and promotions; constitutionality of 
 statutes relating to, 647, 648. 
 Congress can not require him to make, 767. 
 without consent of Senate; accounting officers 
 notified, 1072. 
 Attorney General's opinion required by, 83, 282. 
 Bonds of disbursing officers may be increased by, 1098. 
 Can not encroach upon powers of Congress, 58. 
 Can not reopen acts of prior administration, 734. 
 Chiefs of Ijureaus do not act for, 500. 
 Classification of naval vessels established by, 1277. 
 Coal prices fixed by, for Army and Navy, Alaskan 
 
 mines, 1307. 
 Commander in chief, 81-83, 773. 
 Commander in chief; authority to designate command 
 of joint forces, 443, 444. 
 command of naval vessels and squadrons assigned 
 
 by, 772, 773, 1277. 
 Congress can not interfere with, 58, 59, 81, 578. 
 Congress may restrict powers of, 954. 
 officering and manning of naval vessels, 775. 
 
 PRESIDENT-Continued. 
 
 Commissions of officers delivered after adjournment of 
 
 Senate: previously confirmed, 1072. 
 Confirmation of death sentence, 1036. 
 
 of sentence dismissing commissioned or warrant 
 officer, 1036. 
 Congress can not interfere with powers of, 58, 59, 81, 
 
 578. 
 Constitutionality of statutes relating to retirement, 617. 
 Courts-martial may be convened by, 83, 1015, 1310. 
 
 power to mitigate sentences of, 85, 1053, 1054. 
 Courts without power over, 77. 
 
 Dismissal of midshipmen; written approval required, 
 12S6. 
 of officers, 97, 441, 1010-1014. 
 with consent of Senate, 1011. 
 Examinations for appointment in Marine Corps pre- 
 scribed by, 1270. 
 Examining boards; action on, 724-728, 1189, 1481. 
 
 revocation of action on, 596, 6.30, 728, 734. 
 Execution of laws; duty to see to, 101. 
 Executive power vested in, 77. 
 General courts-martial may be convened by, 83, 1015, 
 
 1310. 
 Limitations of punishment in time of peace to be fixed 
 
 for Navy, 1032-1084. 
 Loan of naval equipment to miUtary schools, 1277. 
 Medals and decorations may be conferred on foreign 
 
 military forces, 1517. 
 Medals; duplicates may be issued by, 1282. 
 Medals of honor, Na^-y crosses, etc., awarded by, 
 
 1521-1523. 
 Midshipman from Porto Kico appointed by, 1281. 
 Mitigation of court-martialsentences,85, 1053, 1054. 
 Naval officers act for, 191,500, 501. 
 Opinions required from heads of departments, 83, 282. 
 Pardoning power, ^3. 
 Power over subordinates, 82, 101, 102. 
 Promotion of officers; seniority law not obligatory on, 
 
 93. 
 Recess appointments; accounting officers notified of, 
 
 1072. 
 Regattas or marine parades; officials designated to 
 
 enforce regulations, 1301. 
 Regulations: approved by. Navy, 784. 
 cannot usurp powers of Congress, 784. 
 deck courts; issued by, 1309. 
 governing supplies to be made by, 787, 788. 
 to be prescribed by; purchase of discharge from 
 Navy, 1222. 
 Reports to, concerning business of departments; 
 
 whether in arrears, etc., 1221. 
 Retirement of marine officer; action illegal , 621, 822, 
 968, 969. 
 of officers; Secretary of the Navy acts for, 642, 843. 
 Retiring boards; action on proceedings, 616. 
 
 action on proceedings; illegal; 621, 622, 968, 969. 
 may direct Secretary of the Navy to refer cases to, 
 598. 
 Revision of examining board's proceedings, 724-728. 
 Revocation of action on findings of examining board, 
 
 596,630,728,734. 
 Sale of naval vessels; by direction of, 777. 
 
 written direction required if less than appraised 
 value, 1192. 
 Secretary of the Navy acts for, 342, 343, 344, 474, 500, 
 586, 642, 643, 7S7, 956, 957, 1481, 1482. 
 executes orders of, 342. 
 Selection for promotion ; action on report of board, 1433. 
 Signing of commissions by, before seal affixed, 1248. 
 Temporary appointments; accounting officers notified, 
 1072. 
 
 1664 
 
INDEX. 
 
 rHESIDENT— Continued. 
 
 Temporary appointments; power to make, 473. 
 Threats against; punishment, 1469. 
 War powers, 38, 39, 58. 
 PRESUMPTIONS: 
 , Knowledge of the law, 477. 
 Line of duty, 611. 
 
 Official duties properly performed, 352. 
 PREVIOUS ADMINISTRATION: 
 
 See Heads of departments; lies judicata. 
 PRINCE: 
 
 Acceptance of presents from, 75. 
 PRINCIPALS: 
 
 Definition of, criminal code, 1354. 
 PRINTERS: 
 
 Enlisted men advanced to printer, first class, and 
 chief printer, 1423. 
 PRINTING AND BINDING: 
 
 Act of January 12, 1895; 1230-1240. 
 
 Accounts of Public Printer with departments; report 
 
 concerning, 1231, 1232. 
 Accumulated documents in departments; disposal of, 
 
 1234. 
 Allotments of Congress and departments jointly 
 charged with cost, 1285. 
 of departments; chargeable with blanks, flUng de- 
 vices, etc., 1278. 
 portion to be reserved for special purpose, 1285. 
 American Ephemeris and Nautical Almanac, number 
 ofcopies, 1234, 1278. 
 sale of, 1234, 1235. 
 AppUcation of private parties for printing additional 
 
 copies, 1232. 
 Apportionment of departmental allotments, 1285. 
 Appropriations must be specific, 1296. 
 
 not to be exceeded, 1238. 
 Authority of law required for, 1237, 1239. 
 for departmental publications, 1284. 
 for printing periodicals, 1525. 
 Bills and resolutions; distribution of to departments, 
 
 1238. 
 Binding; style of, 1232, 1237. 
 Blank books; work to be done at Government Printing 
 
 Office, 1525. 
 Blanks; PubUc Printer to furnish to departments, 1278. 
 Blue Book; Official Register of the United States, 1235, 
 
 1236. 
 Books and maps transferred by departments to Li- 
 brary of Congress, or public library, D. C, 1280. 
 Books; departmental; restrictions on printing, 1284. 
 for duplicating processes; Public Printer tofiu-nish 
 to departments, 1278. 
 Bureaus, Navy Department; printing must be done at 
 
 Government Printing Office, 378. 
 Catalogue of Government pubUcations, 1234. 
 Compliments of officer not to accompany distribution 
 
 of documents, 1236. 
 Congressional Directory; printing and distribution of, 
 
 1235. 
 Congressional Record; distribution of, 1235. 
 
 to be examined by departments and documents 
 
 ordered therefrom, 1238. 
 
 Copyright of Government publications forbidden, 1232. 
 
 of maps, charts, etc.; purchase of by Hydrographic 
 
 Office, 1236, 1237. 
 
 Cost of, divided between department and Congress in 
 
 certain cases, 1285. 
 Defijiition of executive and judicial departments, 192. 
 Delays in printing, 1230. 
 
 copy and illustrations to be furnished within one 
 
 year, 1237. 
 Joint Committee on Printing to prevent, 1525. 
 
 PRINTING AND BINDING— Continued. 
 
 Delays in printing; time for furnisliing copy to Public 
 
 Printer; annual reports, 1416, 1417. 
 I>epartmcntal edition printed concurrently with usual 
 
 number, 1300. 
 Departmental publications; distribution by Public 
 Printer, 1384, 1385. 
 furnished designated depositories, etc., 1233. 
 furnished Library of Congress, 1273, 1274. 
 furnished Superintendent of Documents, 1234. 
 illustrations restricted, 12S4. 
 number of copies limited, 1238. 
 restrictions on printing, 1284. 
 Designated depositories; departmental publication 
 distributed to, 1233. 
 furnished with publications, 1300. 
 libraries of departments, Naval Academy, etc., 
 1240. 
 Detail of employees from Government Printing Office, 
 
 1359, 1360. 
 Disposal of accumulated documents in departments, 
 
 1234. 
 Distribution; "compliments" of officers omitted, 1236. 
 departmental pubUcations by Public Printer, 1384, 
 1385. 
 funished Library of Congress, 1273, 1274. 
 documents; accumulated in departments, 1234. 
 furnished departmental libraries, Naval 
 
 Academy, etc., 1238, 1240. 
 reports, bills and resolutions, 1238. 
 printed matter, to designated depositories, etc., 
 
 1233, 1300. 
 publications; measures to prevent duplication, 
 waste, etc., 1525. 
 printed for or received by departments, 1239. 
 Documents; acciunulated in departments; disposal of, 
 1234. 
 and books; exchange of, 1239. 
 catalogue of, 1234. 
 comprehensive index and consoUdated index of, to 
 
 be published, 1234. 
 departmental; number Umited, 1238. 
 
 restrictions on printing, 1284. 
 either House may order printing of, 1230. 
 numbering of, 1300. 
 
 ownership of Government pubUcations, 1236. 
 restrictions on illustrations, 1284. 
 Duplication; measures to prevent, 1525. 
 Editions; number of, Hydrograpiiic Office pubUca- 
 tions, 1238. 
 two or more permitted of departmental publica- 
 tions, 1285, 1286. 
 Eleetrotyping, matter needed a second time, 1232. 
 Envelopes for departments to be procured by Post- 
 master General, 1239, 1240, 1291. 
 excepted from general provisions concerning, 1296. 
 restrictions on printing contained on, 1291. 
 Ephemeris and Nautical Almanac, extra copies to be 
 printed, 1234. 
 number of copies, 1278. 
 sale of, 1234, 1235. 
 Estimates; amount of aUotment to be reserved by 
 department, 1285. 
 Hydrographic Office, to be separate and detailed, 
 
 1197. 
 Navy Department, 1102. 
 
 of cost; furnished departments by PubUc Printer, 
 1239. 
 to accompany documents before oidered 
 printed by Congress, 1230. 
 submission to Congres.s, 1101, 1232, 1296. 
 to Congress by PubUc Printer, 1248. 
 
 1665 
 
INDEX. 
 
 PRIXTIXG AND BINDING— Continued. 
 Exchange of documents and books, 1231). 
 Executive departments; distribution of publications 
 by, 1239, 1384, 1385. 
 libraries to receive publications, 1240. 
 submitting reports and documents to Congress; 
 
 estimates must accompany, 1230. 
 work to be done at Government Printing Office, 
 192, 1101, 1237, 1525. 
 Executive and judicial departments, construed, 192. 
 Extra copies of certain publications to be printed, 
 
 1234-1230, 1238, 1272. 
 Filing de^•ices; Public Printer to furnish to depart- 
 ments, 1278. 
 Foreign hydrographic surveys, HOC, 1237. 
 Forms; Public Printer to furnish blanks, etc., to de- 
 partments, 1278. 
 and style of printing and binding, 1232, 1237, 1238. 
 General provisions relating to, 12:50-1240. 
 Government Printing Office; detail of employees from, 
 1359, 1360. 
 duties of Public Printer, 1231. 
 to do all printing, binding, blank-book work; ex- 
 cept, 192, 1101, 1237, 1525. 
 Heads of departments; approval required for reprint- 
 ing, 12S1, 1282. 
 certificate as to necessity for illustrations, 1284. 
 certificate as to necessity of matter embodied in 
 annual reports, 1239. 
 Hydrographic Office; separate estimates and appro- 
 priations for, 1197. 
 publications; number of copies fixed by Secretary 
 of the Navy, 1238. 
 preparation and sale of, 1230, 1237. 
 proceeds from sale of, 1237, 1543. 
 sold at cost, 390. 
 Hydrograpie surveys; foreign, 1100, 1237. 
 Illustrations; restrictions on, 1239, 12S4. 
 
 and maps must be furnished before printing of 
 documents, 1237. 
 Index of documents to be published, 1234. 
 Joint congressional committee on, 1230. 
 Journals; authority of law necessary for, 1525. 
 Libraries of departments. Naval Academy, etc., desig- 
 nated depositories, 1240. 
 Library of Congress; departmental publication?:, etc. 
 
 furnished to, 1273, 1274. 
 Magazines; authority of law necessary for, 1525. 
 Manifold blanks; Public Printer to furnish to depart- 
 ments, 1278. 
 Nautical Almanac; number of copies, 1234, 1278. 
 
 sale of, 1234, 1235. 
 Naval InteUigence publications; extra copies author- 
 ized, 1272. 
 Naval Observatory; meteorological and magnetic ob- 
 servations, etc.; number printed, 1235. 
 Navy Register, nvunber of extra copies to be printed, 
 
 1235. 
 Neglect and delays in, 1230. 
 measures to remedy, 1525. 
 time for furnishing copy to printer, 1237. 
 Numbering of Congressional documents, 1300. 
 Number of copies; American Ephemeris and Nautical 
 Almanac, 1234, 1278. 
 departmental reports, publications or documents, 
 
 1238. 
 Hydrographic Office publications, 1238. 
 Naval InteUigence publication';, 1272. 
 Navy Register, 1235. 
 
 two or more editions jjcrmitted, 12S5, 1286. 
 Number of documents, reports, etc., which may be 
 ordered by deparlanents interested, 1238. 
 
 PRINTING AND BINDING— Continued. 
 
 Observations of the Naval Observatorj-; number of 
 
 copies to be printed, 1235. 
 Official Register of the United States; printing and 
 
 distribution of, 12.35, 12.30. 
 Ownership of fiovemment publications, 1236. 
 Periodicals; authority of law necessary for printing, 
 
 1525. 
 Public Printer; duties of, 1231. 
 
 to decide as to forms and style, 1232. 
 to distribute departmental publications, 13S4, 1385. 
 to furnish blanks, blank books, filing devices, etc., 
 1278. 
 Register of the Navy; number of copies, 1235. 
 
 of the United States, printing and distribution of, 
 1235. 
 Reports, bureau chiefs; heads of departments to direct 
 whether shall be printed, 1238. 
 distribution of; compliments of officer omitted, 
 1236. 
 to departments, 1238. 
 departmental; allotments chargeable with cost, 
 
 1285. 
 general provisions relating to, 383-385. 
 number of copies, 1238. 
 of publications issued by departments, 1556. 
 
 received and distributed by departments, 1239. 
 of work done by Public Printer for departments, 
 
 1231. 
 restrictions on illustrations, 1284. 
 time for furnishing copy to Public Printer, 227, 
 
 1416, 1417. 
 to Congress from departments; estimates ac- 
 companying, as to cost, 1230. 
 type and form, 1238. 
 
 unnecessary matter excluded from, before print- 
 ing; illustrations, 12:39. 
 Reprinting of documents for sale, 1281, 1282. 
 Requisitions; all copy to be fiunished within one 
 year, 1237. 
 by heads of departments; report to Congress con- 
 cerning, 1231. 
 by private parties for additional printing of docu- 
 ments, 1232. 
 certificate of necessity contained in, 1239. 
 departmental; restrictions on printing to he done 
 
 under, 1284. 
 for blanks, blank books, filing devices, etc., 1278. 
 for documents, reports, etc., to be submitted from 
 
 examination of Congressional Record, 1238. 
 for, made by heads of departments, 1239. 
 for, signed by chief of the department, 1238. 
 number of copies which may be ordered on, by 
 
 departments, 123S. 
 on Postmaster General for envelopes, 1239, 1240. 
 reprinting publications for sale; head of depart- 
 ment must approve, 1281, 1282. 
 Resolutions and bills; distribution to departments, 
 
 1238. 
 Sale of documents; acciunulated in departments, 1234. 
 by Superintendent of Documents, 1233, 1284. 
 approval of department required, 1281, 12>i2. 
 disposal of proceeds, 1282. 
 to private parties, 1232. 
 Sale of duplicate stereotype or electrotype plates to 
 private parties, 1232. 
 of Ephemeris and Nautical Almanac, 1234, 1235, 
 
 1278. 
 of Hydrographic Office publications, 390, 1236, 
 12.37, 1343. 
 Session laws ; distribution of, 1235. 
 
 1666 
 
INDEX. 
 
 PRINTING AND BINDING-Continued. 
 
 Secretary of the Navy may prescribe number of copies; 
 
 Hydrographic publications, 1238. 
 Stationery printed in course of manufacture excepted 
 
 from general provisions, 1296. 
 Statutes; printing and distribution of, 1235. 
 StereotiTDing, matter needed a second time, 1232. 
 Style and forms; printing and binding, 1232, 1237, 1238. 
 Superintendent of Documents; departmental publica- 
 tions furnished to, 1234. 
 distribution of departmental publications by, 1233. 
 duties of, 1233, 1234. 
 
 orders for reprinting subject to approval of depart- 
 ments, 1281, 1282. 
 sale of documents by, 1233, 1234, 
 to distribute publications to departmental libra- 
 ries, etc., 1240. 
 Time for furnishing copy of annual reports to Pubhc 
 Printer, 1416, 1417. 
 and illustrations to Public Printer, 1237. 
 Titles of documents and reports, 1300. 
 Transfer of printing equipment to Public Printer, lo31. 
 Type, size of, determined by Public Printer, 1232. 
 
 style of, for annual reports, 1238. 
 Usual number; documents ordered printed liy Con- 
 gress, 1232. 
 estimates to accompany reports to Congress as to 
 
 cost of printing, 1230. 
 exceeded for certain publications, 1234-1236, 1238, 
 
 1272, 1278. 
 exceeded when ordered by either House, 12;?2. 
 not to be printed of American Ephemeris and 
 
 Nautical Almanac, 1278. 
 printed concurrently with departmental edition, 
 1300. 
 Waste in; measures to prevent, 1525. 
 PRINTS: 
 
 Restrictions on pinrchase of, 1073. 
 PRISONERS: 
 
 See Accused; Hard labor; Punishments. 
 
 Allowances to; clothing and gratuity on discharge, 
 
 1310, 1311. 
 Amenable to trial during imprisonment, 558, 976. 
 Bringing into court as witnesses, 403. 
 Commutation of rations, 898. 
 Death in line of duty, 613, 614. 
 Dental treatment, 903. 
 Discharged; not troops of United States, 1180. 
 
 transportation and clothing furnished, 1313. 
 Discharge of officer serving sentence of civil court, 1010, 
 
 1012, 1503. 
 Escape; pimishment of naval master-at-arms permit- 
 ting, 985. 
 miUtary guard charged with manslaughter in at- 
 tempting to prevent, 403. 
 Habeas corpus proceedings for release of, 401. 
 Hiring out labor of, forbidden, 1198. 
 Jurisdiction to punish, 558, 976. 
 Manual for government of naval prisoners; force of 
 
 regulations, 786. 
 May be confined in civil prisons and penitentiaries, 
 
 983, 984. 
 Merchant seamen; confinement on naval vessel, 576. 
 Not in the custody of the Secretary of the Navy, 404. 
 Pay after enlistment expires, 558. 
 
 of naval persoimel in hands of civil or military 
 authorities, 588, 589, 825, 871, 950. 
 Presence of at trial, 127. 
 
 Punishment of master-at-arms refusing to receive or 
 suffering to escape, 985. 
 
 PRISONERS— Continued. 
 
 Subject to discipline of institutions in which confined, 
 
 983, 984. 
 Time in confinement not a period of service, 589. 
 Transportation to penitentiary, 984. 
 Treated as convicts, 983, 984. 
 United States; medical treatment, 459. 
 Witness fees in case^ of, 414. 
 PRISONERS OF WAR: 
 
 Insane; admission to St. Klizabeths Hospital, 1417, 
 
 1418. 
 Pay of officers and men attached to captured vessel, 891 . 
 PRISONS: 
 
 See Pcnitcntiarks. 
 
 Midshipmen not to be confined in, for liazing, 1287. 
 Naval courts-martial may sentence offenders to civil 
 institutions, 983, 984. 
 PRIVATE DETECTIVES: 
 
 See Detectives. » 
 
 PRIVATE PROPERTY: 
 
 Damaged by naval personnel; claims; settlement of, 
 
 1358, 1359, 1504, 1508, 1527, 1545. 
 Deceased inmates. Naval Home; disposition of eficcts, 
 
 1395. 
 Deceased personnel. Navy; disposition of effects, 786, 
 
 1503. 
 Effects of deceased persons on naval vessels; disposi- 
 tion of, 995. 
 of enUsted men lost on vessels; reimbursement; 
 
 permanent appropriation for, 1106. 
 of naval personnel lost in service; reimbursement, 
 1492-1494. 
 Embezzlement of, by public officer, i;331. 
 Importing in naval vessel, 989. 
 Injuring in any way; punishment. Navy, 98.5. 
 Lost in naval service; decisions relating to, 269-274. 
 jurisdiction of accounting officers and Secretary of 
 the Nax-y, 272. 
 Lost on sunk or captured vessels, 269. 
 Reimbursement for loss or damage, naval service, 
 
 1492-1494. 
 Seizure by military commander, 40. 
 Transportation; household effects, naval personnel, 
 1535, 1536. 
 on naval vessel, 985. 
 PRIVATE REPRIMAND: 
 See Reprimand. 
 
 Commanding officer may inflict as punislmaent, 1002. 
 PRIVATES: 
 
 First class. Marine Corps; number of; rank established, 
 1478. 
 PRIVILEGED CO>IMUNIC.\TIONS: 
 
 Official corraspondence in departments, 356, 357. 
 Report by chief of bureau to head of department, 350. 
 PRIZE: 
 
 .\ssignment of prize money by enlisted men, 573. 
 Capture and condemnation of piratical vessels, li:M. 
 Distribution among captors; law authorizing, repealed, 
 
 1268. 
 Cieneral provisions relating to, 1137-1147. 
 Interference with disposition of, etc., 1325. 
 List of persons claiming share of, in Navy, 994. 
 Maltreating persons on; pimishment, Navy, 994. 
 Money accruing to United States credited to Navy 
 
 pension fund, 1153. 
 Permanent appropriation for payment to captors, 1 10(j. 
 Property taken on inland waters, 1170. 
 Removing property from; punishment, Navy, 994. 
 PRIZEFIGHTS: 
 
 Films and pictures; offenses relating to, 1371, 1372. 
 
 1667 
 
INDEX. 
 
 PROBATION: 
 
 Kmployei's in civil establishment, 340. 
 PKOBATIOXAKY: 
 
 Appointments; acting ensigns for engineering duty, 
 1435. 
 Marine Corps, 1461, 14(J2. 
 PROCEDURE: 
 
 Errors of; courts-martial; review by ci^^l courts, 401- 
 402. 
 due process of law requirement, 125. 
 PROCESS: 
 
 Civil authorities: service on persons in naval or civil 
 
 service, 292, 293. 
 Courts-martial may issue, for witnesses, 1310. 
 Right of accused to have, for obtaining witnesses, 129, 
 132, 133. 
 PROCESSIONS: 
 
 Precedence of line and staff oflBcers, 704. 
 PROFANITY: 
 
 Pimishable by naval court-martial, 984. 
 PROFESSIONAL: 
 
 Examination for promotion, 711-721. 
 PROFESSORS: 
 
 Civilian; Naval Academy; number and compensation 
 
 of, 14.57, 1535. 
 Civilian; Naval Academy; quarters, heat and light, 
 
 701. 
 Line officer detailed to Naval Academy; relative rank 
 with Army officers, 667. 
 PROFESSORS OF IVIATHEMATICS: 
 Advancement in rank, 682, 683. 
 Appointment of, 503, 504. 
 
 discontinued, 1428. 
 Designation a misnomer, 771. 
 Duties, 391, 504, 505, 771. 
 General provisions relating to, 503-505. 
 Number, 503. 
 Pay, 794, 803. 
 Rank, 680, 682, 683. 
 
 Supervision of Nautical Almanac Office, 391. 
 PROFITS: 
 
 See Ship's stores. 
 
 Midshipmen's store; public money, 232. 
 
 Ships' stores, 1359. 
 
 not public money, 232. 
 PROHIBITION: 
 
 Intoxicating liquor, near military camps, and to per- 
 sons in uniform, etc., 1477, 1478. 
 Writ, of not issued to courts-martial, 977. 
 PROJECTILES: 
 
 Restrictions on purchase of, 1395, 1396. 
 PROMOTION: 
 
 See Advancement; Appointment; Examinations; Exam- 
 ining boards. 
 Acceptance; effect of, 654. 
 
 presumed, 97. 
 Acting ensigns to lieutenant (junior grade), 1436. 
 Additional number officers, 1275, 1276. 
 by selection, 1430, 1432. 
 Marine Corps, 1459. 
 
 war service or extraordinary heroism, 1289. 
 Advancement in rank without change of grade, 682. 
 of enlisted man held not to be, 513. 
 of naval officers for extraordinary heroism, 453, 
 454,734-736,921,933. 
 Age requirements, line officers, 1434. 
 Antedating rank on, 649-651, 734, 931, 1459. 
 Appointment distinguished; definitions, 93, 513, 522, 
 
 653, 6.54, 830, 930. 
 Assistant surgeons to passed assistant surgeon, 1251. 
 Aviation officers, 1439. 
 
 1'ROMOTION— Continued. 
 
 Chaplains in Navy, 1396, 1397. 
 Civil establishment, 1383. 
 
 jurisdiction of accounting officers, 242. 
 Commencement of pay on; naval officers, 830-838, 1178, 
 
 1390. 
 Commissioned warrant officers to ensign, 1314. 
 Commission; erroneous, 103, 685, 708, 709. 
 
 withheld, 652. 
 Conduct in battle; exceeding number in grade, 736, 921. 
 Confirmation; Senate's consent indirectly given, 652. 
 Constitutionality of statutes requiring examinations, 
 
 709. 
 Courts can not review proceedings, 620, 621 . 
 Court-martial of officer pending, 652. 
 Date of, 464, 465. 
 
 rank, 649-6.51, 734, 931, 1390, 1459. 
 
 officer promoted after suspension, 731-733. 
 Death of officer before accepting, 97, 652. 
 Definition of; appointment distinguished, 93, 513,. 522, 
 653, 654, 830, 930. 
 
 officer passing from lower to upper half of rear 
 admirals, 736. 
 Delayed; new physical examination not required, 709 
 Dental officers, 1421. 
 
 service credited for, 1473. • 
 Disqualification; seniority law not obligatory on 
 
 President, 93. 
 Ensigns, junior grade, 1190, 1191. 
 
 to lieutenant (junior grade), 1264. 
 
 length of service requirement suspended, 1551. 
 Errors in commission; 685. 
 
 officer not qualified, 708, 709. 
 Fleet officers during war; admiral and vice admiral, 
 
 1481. 
 Increase in pay held not to be, 341. 
 
 held to be, 736. 
 Law changed; effect on existing vacancies, 648. 
 Length of service; when service commences, 464, 465. 
 Lieutenants (jimior grade) to lieutenant, 1425. 
 
 examinations required, 1190. 
 
 length of service requirement suspended, 1551. 
 Machinists to chief machinist, 1314. 
 Marine Corps, 924-927. 
 
 Army laws extended to, 1219. 
 
 common list, 1461. 
 
 date of rank, 1459. 
 
 for conduct in battle or extraordinary heroism, 921, 
 933. 
 
 permanent staff officers, 1460. 
 
 to grade of brigadier general, 1459. 
 Medical Corps, 464. 
 Moral unfitness for, 597, 623, 630. 
 
 discharge; pay, 630, 1189. 
 
 what constitutes, 624-627. 
 Naval Reserve Force, 1510. 
 Navy; general provisions relating to, 707-737. 
 Oath of office, 654. 
 
 Passed assistant surgeons to surgeon, 1251. 
 Pay clerks. Navy, 1406, 1407. 
 
 Pay; commencement of, in higher grade, 830-838, 1178, 
 1390. 
 
 of officer undergoing examination for, 709. 
 Pharmacists to chief pharmacist, 1420. 
 Physical unfitness; Marine Corps, 640, 641, 965. 
 
 Navy, 640, 641,1366, 1433. 
 Precedence; effect on right to, 693, 694. 
 Professional unfitness; Marine Corps, 1463. 
 
 Navy, 729-734, 1433, 1550, 1.551. 
 Rear admirals; selection of, 1430, 1513. 
 
 in time of peace, 721 . 
 
 1668 
 
INDEX. 
 
 PROMOTION— Continued . 
 
 Rear admirals; in time of war, 454. 
 
 Recess appointment not confirmed; status of officer, 
 
 651. 
 Retired oflRcers; in time of war or emergency, 1512, 1513. 
 prohibited, 1189. 
 staff corps; length of service, 685. 
 withdrawn from line of, 654, 655. 
 Retirement of officers, Navy, not recommended for, 
 594, 91 1 . 
 of officers pending promotion, 592, 651, 832. 
 Sea-service requirement; line of the Navy, 1434. 
 Selection; line officers, 1430-1434, 1551. 
 
 line and staff; time for convening boards, 1529. 
 Naval Reserve Force above lieutenant com- 
 mander, 1510. 
 precedence of officers, 652, 669, 694, 14.33. 
 professional and physical examinations required, 
 
 1433. 
 records of officers examined by selection board, 
 
 722, 723. 
 staff officers, 1513. 
 Senate's consent indirectly given, 735. 
 Seniority, Army, 93. 
 
 constitutionality of legislation requiring, 647-648, 
 
 681. 
 Marine Corps, 1461. 
 Navy, 646, 680. 
 staff corps, 680, 681 . 
 Staff officers; above lieutenant commander, 1513. 
 below lieutenant commander, 1426. 
 examinations not required, except for advance 
 mentinrank, 1481, 1482. 
 Status of officer pending, 651, 652. 
 Supply Corps, 471. 
 
 effect on bonds , 496. 
 Temporary; general law not applicable to, 721. 
 selection law not applicable to, 1432. 
 termination of, under act of July 1, 1918; 1515. 
 Thanks of Congress; officer receiving, 736. 
 Vacancies necessary prior to, 453. 
 Vacancy caused by promotion of additional number 
 
 officer not filled, 1275, 1276. 
 Vested right to, 648. 
 Warrant officers, 510. 
 
 to commissioned warrantofflcer,1266, 1267, 1282. 
 to ensign, 1277, 1280-1282. 
 Wounds in line of duty, not bar to, 709. 
 PROPERTY: 
 
 SeePrivate property; Public property. 
 Enemy, confiscation of, 40. 
 Officeisnot, 124. 
 PROPERTY ACCOUNTS: 
 
 See Accounting officers; Accounts. 
 
 Auditing of, 1223. 
 
 Bureau of Supplies and Accounts to keep, 1203. 
 
 Jurisdiction of accounting officers, 234. 
 
 Loss of public property; charging value to responsible 
 
 officer, 788, 1223. 
 Returns to be examined by Paymaster General of 
 
 Navy; certificate to accounting officers, 1223. 
 Storekeeper at Naval Academy to make returns, 1304. 
 PROPOSALS: 
 
 See Contracts. 
 PROSECUTOR: 
 
 General courts-martial, 1020. 
 PROVISIONAL: 
 
 Rank, grade or rating. Naval Reserve Force, 1444. 
 PROVISIONS: 
 
 See Contracts; Stores; Subsistence; Supplies. 
 
 Foreign stations; estimates and appropriations for 
 
 transportation. Navy, 1103. 
 Naval vessels; inspection and preservation of, 995. 
 
 PROVISIONS-Continued. 
 
 Navy; advertising for proposals for, 1111. 
 Transportation for Navy, American vessels, 1283. 
 Wasting or permitting waste; punislmient. Navy, 985. 
 PROVISIONS AND CLOTHING: 
 
 Name of bureau changed to Supplies and Accounts, 
 1218. 
 PROVOKING WORDS: 
 
 Punislmient for using in Navy, 984. 
 PUBLIC ACCOUNTS: 
 
 See A ccounti7ig officers; Accounts; Claims. 
 PUBLICATIONS: 
 
 SoePrinting and binding. 
 PUBLIC BUILDING COMMISSION: 
 
 Control of office space in District of Colimibia, 1524, 
 1525. 
 PUBLIC BUILDINGS: 
 
 See Buildings. 
 PUBLIC BUSINESS: 
 
 Meaning of; mileage law, 843, 844. 
 Wording of orders not conclusive as to character of 
 travel, 845. 
 PUBLIC HEALTH SERVICE: 
 
 Commissioned officers eligible for membership on 
 
 naval courts-martial, 1494. 
 Duties in time of war, 1279. 
 Jurisdiction of Treasury Department, 1283. 
 Personnel credited with service in other organizations 
 
 for longevity pay, 1533. 
 Sale of naval supplies to personnel of, 1533. 
 Service credited for longevity pay in Navy, Marine 
 
 Corps, etc., 1535. 
 Subject to Navy laws in time of war, 1491. 
 Surgeon General of Navy to detail officer for advisory 
 
 board, 1279. 
 Transfer of lands, buildings, furniture, etc., to, 1526, 
 1559. 
 PUBLIC LANDS: 
 
 See Lands; Military reservations; Naval petroleum re- 
 serves; Naval reservations; Oil lands; Reservations. 
 General provisions relating to, 1083-1089. 
 Military or other reservations, 1087. 
 Naval petroleum reserves, use of proceeds; fund 
 
 created, 1399. 
 Naval reservation, timber lands, 1087-1089. 
 Preservation of historic monuments, etc., on, 1288. 
 Secretary of the Interior, supervision by, 395. 
 Timber cut from; clearance of vessels laden with, 1125. 
 PUBLIC 3IONEYS: 
 
 See Accounting officers; Accounts; Appropriations; 
 
 Crimes; Disbursing officers. 
 Accounts; distinct, according to appropriations, 1097. 
 examination by administrative bureau, 1097. 
 form of, 1097. 
 
 Navy disbursing officers, render direct to account- 
 ing officers, 1097. 
 premium on sale of public securities, 1100. 
 time allowed for rendering, 1097. 
 to be kept of receipts and expenditures, 1098. 
 Advances by order of commanding officer, 498. 
 
 mileage books, commutation tickets, etc., paid for 
 
 in advance of travel, 1282. 
 partial payments to contractors, 1369. 
 pay of naval establishment; persons on distant 
 
 stations, 838, 1099, 1100. 
 pay of naval officers, 1472. 
 restricted, 1099, 1100. 
 subscriptions to newspapers and periodicals, 1401, 
 
 1408, 1409. 
 witness fees and mileage, naval courts, 1022, 1310. 
 Attachment by creditors, 573, 574. 
 Checks lost or stolen; duplicates, 1098, 1099. 
 
 1669 
 
INDEX. 
 
 PUBLIC MONEYS— Continued. 
 Converting, 990, 1098, 1329. 
 Custodians; duties of, 109S. 
 Definition of, 232, 492, 493. 
 Deposit of; by disbursing officers, 1096. 
 
 contrary to law, KWS, 1329. 
 postal employees, 1344. 
 
 failure of disbursing officers to make as required, 
 1330. 
 
 without deduction, 1095, 1096. 
 Disbursements; additional pay for making, 1067. 
 
 currency in which to be made, 1100. 
 Disbursing officers, failing safely to keep, etc., 1329, 
 
 1330. 
 Drafts to be promptly presented by disbursing officers 
 
 for payment, 1100. 
 Duplicate checks issued for lost or stolen, 1098, 1099. 
 Duties of officers to keep safelj', 1098. 
 Embezzlement of, 1328. 
 
 by naval personnel, 990, 1170. 
 
 by postal employees, 1344. 
 
 by public officers, 1331. 
 
 money furnished for naval service, 990, 1325. 
 Exchanging for other funds, by custodians, etc., con- 
 trary to law, 1330. 
 
 by postal employees, 1344. 
 
 prohibited, 1098, 1100. 
 Failing safely to keep; punishment, 1329, 1330. 
 False accounts and returns, naval personnel, 1170. 
 
 accounts, records or reports; punishment, 1368. 
 
 receipts; punishment for giving or receiving, 990. 
 General pro^^sions relating to, 1095-1100. 
 Larceny of, 1328. 
 
 of checks; duplicates issued, 1098, 1099. 
 
 of money furnished for naval service 990, 1325. 
 Loan of, by officers of Supply Corps, 497. 
 
 by postal employees, 1344. 
 
 contrary to law, 1329. 
 
 prohibited, 1098. 
 Loss or deficiency of; Secretary of the Navy may re- 
 lieve officers from responsibility for, 1527, 1528. 
 Lost or stolen checks; duplicates, 1098, 1099. 
 Mess funds; commutation of rations, 902. 
 Misappropriation of; furnished for naval service, 990, 
 
 132.5. 
 Miscellaneous receipts, 1095. 
 
 purchase of discharge by enlisted men, 1222. 
 
 sale of maps, charts, etc., Hydrographic Office, 
 1.543. 
 
 sales of garbage from general mess, 899. 
 
 sales of naval vessels, 1192. 
 
 sale of old naval material, 1190. 
 Payments of to be made when directed, 1098. 
 Pay, miscellaneous, credited with interest, premiums 
 
 and exchange, 1222. 
 Receipts from post laundries, Marine Corps; account- 
 ing for, 1531. 
 Regulations of Treasury to be observed, 1098. 
 Requisitions for, on Treasury, 1104, 1225, 1220. 
 Safe-keeping of; failure of officers, 1329, 1330. 
 
 required, 1098. 
 Special disbursing agents, 1095. 
 Stolen checks; duplicates, 1098, 1099. 
 Time allowed for depositing, 1096. 
 Transfer of, contrary to law, 1329. 
 
 to be made when directed, 1098. 
 Use of, contrary to law prohibited, 1098. 
 Warrants for drawing appropriations from Treasury, 
 
 1104. 
 Withdrawing, contrary to law, 1329. 
 Withholding; penalty for, 1096. 
 
 suits to recover, 1097, 1098. 
 
 PUBLIC OFFICERS: 
 
 See Civil establishment; Officers; Officers of the Marine 
 
 Corps; Officers of the Navy. 
 Acting as attorney before courts-martial, departments, 
 
 etc., 1333. 
 Bribery of, 1325, 1326, 1334. 
 Claims against United States; not to be interested in, 
 
 1332. 
 Compensation to, from private parties, restricted, 1470. 
 Deceased; buildings not to be draped in mourning 
 for, 1220. 
 ex-officials; closing departments for, prohibited, 
 1220. 
 Deficiencies prohibited; removal from office for viola- 
 tion, 1104, 1105. 
 Double salaries, restrictions on, 208, 1066-1071, 1177, 
 
 1411. 
 Employment of personal services in excess of appro- 
 priations restricted, 1104. 
 General provisions relating to, 1065-1073. 
 Impersonation of, 1323. 
 Influencing legislation, 1527. 
 Membership in societies or associations, 1371. 
 PUBLIC PRINTER: 
 
 SeePrinting and binding. 
 PUBLIC PROPERTY: 
 
 See Accounts; Appropriations; Buildings; ContracUs; 
 
 Lands; Printing and binding; Vessels of the Navy. 
 Accounts; audited by Paymaster General; certificate 
 to accounting officers, 1223. 
 naval supply account to govern purchase and issue 
 
 of stores, etc., 1366, 1367. 
 to be kept by Bureau of Supplies and Accounts, 
 1203. 
 Advertising sale of, 1190. 
 
 condemned naval supplies and material, 1204. 
 naval vessels, 1192. 
 Appraisal of before sale, Navy, 1190, 1192. 
 .\ppropriations transferred for payment of, between 
 
 bureaus and departments, 1409, 1536. 
 Auction sale of old naval material, 1190, 1204. 
 Books; exchange of, 1239. 
 
 departmental, transferred to libraries, 1280. 
 of reference, law books, etc., restrictions on pur- 
 chase of, 1261. 
 restrictions on purchase of, 1073. 
 Supreme Court reports and digests furnished 
 public officers, 1365. 
 Building contracts not to exceed appropriations, 1116. 
 Cannon balls; loan or gift of to societies and municipali- 
 ties, 1249. 
 Clothing and small stores fund. Navy, 1204. 
 Clothing; condemned; sale of , in Navy; proceeds, 1095. 
 
 sale, etc., prohibited, 1121. 
 Commandeering coal in Alaska for Army and Navy, 
 1307. 
 factories, vessels, etc., during war, 1475, 1476. 
 merchant vessels for use as transports or cruisers, 
 
 1218. 
 ocean mail vessels for use as transports or cruisers, 
 
 1217. 
 suppUes in time of war, 1413, 
 vessels for naval purposes, 1467. 
 Condemnation of land for buildings, etc., 1199. 
 of land for military purposes, 1490, 1491. 
 proceedings to acquire timber, material, supphee, 
 etc., for Navy, 1518. 
 Courts of States; jurisdiction over Government prop- 
 erty, 773, 774. 
 Custody of, 193, 194. 
 
 Delivering less amount than receipt calls for, 990. 
 to contractors in part pajmaent, 778. 
 
 1670 
 
INDEX. 
 
 PUBLIC PROPERTY— Continued. 
 Destruction of, during war, 1504, 1505. 
 
 failure to use best efforts to prevent; punishment, 
 
 9S4. 
 naval vessel or equipment, 779, 980. 
 pimishment, 980. 
 
 summary court-martial records, 1009, 1311. 
 useless papers, 1202, 1203, 1248, 1301, 1381. 
 valueless, 779. 
 Disposition of; records to be kept concerning, 227, 228. 
 
 regulations governing, 787, 788. 
 Embezzlement of, 1328. 
 
 by naval personnel, 990, 1170. 
 by public officer, 1331. 
 
 property furnished for naval service, 990, 1325. 
 Estimates and appropriations for, Navy, 1102, 1103. 
 Exchange of documents and books, 1239. 
 
 of motor vehicles in part payment for new ones, 
 
 1419. 
 of naval material prohibited if useful for repair of 
 
 vessels, etc., 1190. 
 of naval vessels prohibited, 778, 779. 
 of oil and gas products from naval petroleum re- 
 serves, etc., 1545. 
 of sewing machines, band instruments, etc., 1474. 
 of typewriters, adding machines, etc.; to be re- 
 ported to Congress, 1409, 1410. 
 of typewriters as part pasTnent for new ones, re- 
 stricted, 1543, 1554. 
 False accoimts and returns, 1170, 1368. 
 Flags captured from enemy, 381, 790. 
 Flags issued free of cost; used for draping coffins, 1397. 
 Gifts of condemned ordnance, etc., to societies and 
 municipaUties, 1249. 
 of flags used for draping coffins of officers or enUsted 
 
 men, 1397. 
 to naval vessels; acceptance and care of, 1305. 
 Government's right to acquire possession of its prop- 
 erty from State authorities, 773. 
 Guns, Navy; loan or gift of, to societies and municipali- 
 ties, 1249. 
 Improvements on leased lands, to become property of 
 
 lessor, 1508. 
 Inventions, 1165. 
 
 Inventories required to be kept of, 227. 
 Lands; condemnation, 1199, 1490, 1491, 1518. 
 
 condemnation; title to and jurisdictioii over, 284, 
 
 2S.5. 
 licenses granted for use by private parties, 291. 
 not to be purchased without a specific appropria- 
 tion, 1116. 
 not to be purchased without a specific law author- 
 izing, 1117. 
 purchase of; appropriation available, 294. 
 for naval hospitals, 1159, 1160. 
 for United States; releases obtained by Presi- 
 dent, 1121. 
 rented by United States; erection of buildings, 285, 
 
 1508. 
 supervision of Secretary of the Interior, 395. 
 title to and jurisdiction over, 282. 
 transfer of, authority of executive, 295. 
 between Army and Navy, 1528. 
 to jurisdiction of Navy Department, 1457. 
 to PubUc Health Service, 1526, 1559. 
 Larceny of, 1328, 1335, 1336. 
 
 arms, money, stores, etc., furnished for naval 
 
 service, 990, 1325. 
 personal property of United States, 1328. 
 Leases granted by Navy to lands, 1419. 
 
 of naval petroleum reserves, etc., 1532, 1533, 1545. 
 
 PUBLIC PROPERTY— Continued. 
 
 Loan of condemned ordnance, etc., to societies and 
 municipalities, 1249. 
 of naval equipment, etc., to Red Cross, 1394, 1395. 
 
 to miUtary schools, 1277, 1359. 
 of naval vessels for quarantine service, 1186. 
 
 and equipment to nautical schools, 1367, 1368. 
 to nautical school in PhiUppines, 1297. 
 of scientific instruments, 1201. 
 of, statutory authority required, 779. 
 of, to Navy Department by authority of Congress, 
 380. 
 Loss of, charged to responsible officer, 788, 1223. 
 Medical stores; procurement of, 466, 1116, 1288. 
 Misappropriation of arms, stores, money, etc., fur- 
 nished for naval service, 990, 1325. 
 of, by naval personnel, 990, 1170. 
 Naval hospitals; purchase of and sites for, 1159, 1160. 
 material, old, may be used in construction and 
 repair of vessels, etc., 1190. 
 sale of, 777-779, 1190, 1204. 
 sale or exchange forbidden if useful for repair 
 of vessels, etc., 1190. 
 suppUes; accounts of; reports to Congress; trans- 
 fer between bureaus, etc., 1203. 
 piu'chase and issue of, 1216. 
 purchase, preservation and disposition of; 
 regulations governing, 787, 788. 
 Naval supply account; is to govern purchase and issue 
 of stores, etc., 1.366, 1367. 
 sales from; prices; how credited, etc., 1557. 
 value of, to be credited to naval supply account 
 fund, 1557. 
 Navy Department, custody of, 352. 
 
 general provisions relating to, 352-357. 
 Newspapers; restrictions on purchase of, 1073. 
 Ordnance, Navy; loan or gift of, to societies and munic- 
 ipalities, 1249. 
 Ownership of, 194. 
 
 of Government publications, 1236. 
 of vessels in hands of builders, 773. 
 Patents, 1165. 
 
 Periodicals; restrictions on purchase of, 1073. 
 Pledge; receiving as, from unauthorized person; 
 
 punishment. Navy, 990. 
 Possession of, is in United States, 194. 
 Preserv'ation of. Navy; regulations governing, 787, 788. 
 President's direction in writing necessary for sale of 
 
 naval vessel, 1192. 
 Proceeds of sales, 232, 390, 1095, 1108, 1190, 1202, 1203. 
 Purchase by one bureau or department for another; 
 appropriations transferred, 1409, 1536. 
 from unauthorized person; punishment. Navy, 
 
 990. 
 of hospitals and sites for Navy, 1159, 1 160. 
 of property in excess of needs for current year, 
 
 387, 1113. 
 of clothing from naval personnel, contrary to law, 
 
 1324, 1325. 
 of newspapers, periodicals, books, etc.; restrictions 
 on, 1073, 1261. 
 Receiving from unauthorized person, 990. 
 Records, destruction of, summary court-martial, 
 1009, 1311. 
 disposal of useless papers, 1202, 1203, 1248, 1301, 
 1381. 
 Regulations governing loan or gift of ordnance, etc., 
 1249. 
 governing purchase, preservation and disposition 
 of naval suppUes, 787, 788. 
 sales of old naval material, 1190. 
 
 1671 
 
INDEX. 
 
 PUBLIC PROPERTY— Continued. 
 
 Repairs; estimates and appropriations for, Na^'y, 1103. 
 of buildings; contract not to exceed appropriation 
 
 for, 1116. 
 of typewriting macliines by General Supply Com- 
 mittee, 1557. 
 old naval material to be used for, 1190. 
 . Report to Congress as to sales of war .supplies, lands, 
 buildings, etc., 1516. 
 by Bureau of Supplies and Accounts, annually, 
 
 1203. 
 concerning exchange of typewriters, adding ma- 
 chines, etc., 1409, 1410. 
 of property on hand at navy yards, 381. 
 of proceeds of sales, and expenditures therefrom, 
 
 1296. 
 of sale of old naval material, 1190. 
 of sales, to be contained in book of estimates, 1103, 
 1104. 
 Reserve material, Navy; issue and purchase of addi- 
 tional stoclis, 1473, 14S2. 
 Restrictions on use of, to influence legislation, 1527. 
 Returns to be rendered by storekeeper at Naval 
 
 Academy, 1304. 
 Robbbery of personal property, of United States, 1328. 
 Sales; advertising required. Navy, 1190, 1192, 1204. 
 armament, for sentimental reasons, 12S4. 
 arms, stores, etc., furnished for naval service; 
 
 punishment for unauthorized, 990, 1325. 
 Army motor vehicles to other departments and 
 
 branches, 1531, 1532. 
 Army, Navy and Marine Corps subsistence sup- 
 
 pUes, 1465. 
 Army ordnance stores to other departments; 
 
 price charged; payment, 1388. 
 Army ordnance to naval officers, 1312. 
 between Army and Navy, without comjjensation; 
 
 stores, real estate, etc., 1528. 
 between bureaus of Navy Department, 1203. 
 between departments and bureaus; transfer of 
 
 appropriations, 1409, 1536. 
 between departments and Government establish- 
 ments, 1526. 
 bills of exchange; premium credited to Pay, 
 
 Miscellaneous, 1222. 
 charts at cost, 1182, 1184. 
 computing machines to departments at exchange 
 
 prices by General Supply Committee, 1557. 
 condemned naval clothing, 1095. 
 
 naval clothing; proceeds available for expen- 
 diture, 1108. 
 naval suppUes, stores, and materials, 1204. 
 docks, etc., under Shipping Board, prohibited 
 
 without specific authority, 1555. 
 Ephemeris and Nautical Almanac, 1234, 1235, 1278. 
 from naval suppl}' account credited to naval 
 supply account fund, 1557. 
 prices fixed by Paymaster General, 1557. 
 from ships' stores; profits, 1359. 
 fuel to officers, 943, 951. 
 garbage from general mess, 899. 
 gasoline fuel and oil to vessels of Volunteer Patrol 
 
 Squadrons, 1455. 
 guns and ammunition, 1516. 
 Hydrographic Office publications, 390, 1236, 1237, 
 
 1543. 
 Marine Corps stores to naval and civilian i)ersonnel, 
 
 1391, 14G4. 
 Naval Home, property; proceeds credited to naval 
 
 pension fund, 1472. 
 Naval material and condemned supplies, 777-779, 
 1095, 1108, 1190, 1204. 
 
 PUBLIC PROPERTY— Continued. 
 
 Sales— Continued. 
 
 Naval material prohibited, if useful for repair of 
 vessels, etc., 1190. 
 stores to naval personnel, 533, 829, 1313, 1314. 
 supplies; proceeds, 1095. 
 supplies to Coast Guard personnel, 1533. 
 supplies to Public Health Ser\-iee x)ersonnel, 
 
 1533. 
 vessels, 777-779, 1457. 
 vessels and material; annual report, 381. 
 vessels; procedure, 1192. 
 vessels; proceeds covered into Treasury, 1192. 
 Navy and Marine Corps subsistence stores, etc., 
 
 to discharged persons, 1554. 
 oil and gas products, naval petroleum reserves and 
 
 royalty oil, 1545. 
 old material, etc., reported to Congress, 1360. 
 oldnavalmaterialatpubUcauction,etc., 1190, 1204. 
 proceeds, disposition of, 390. 
 proceeds of; garbage, 232. 
 proceeds of miscellaneous receipts, 1095. 
 proceeds of, paid into Treasurv; naval material, 
 
 1190. 
 proceeds of, revert to original appropriation, 1108. 
 record to be kept of, 227. 
 regulations governing, 1190. 
 report concerning proceeds of, 1296. 
 report to Congress by Secretary of the Navy, 1190, 
 
 in Book of Estimates, 1103, 1104. 
 securities; premium to be accounted for, 1100. 
 ships' stores, profits; not public money, 232, 233. 
 smooth-bore cannon for experimental purposes, 
 
 1193. 
 stores, etc., to naval personnel and employees, 
 
 533, 829, 1313, 1314. 
 timber lands, logs, etc.; reuse of proceeds, 1518. 
 typewriters, restricted, 1.543, 1554. 
 
 to departments at exchange prices by General 
 Supply Committee, 15.57. 
 imiforms, accouterments and equipment to Ma- 
 rine officers, 1531. 
 accouterments and equipment to naval offi- 
 cers and midshipmen, 1521. 
 at cost to citizens in Marine Corps training 
 
 camps, 1464. 
 prohibited, 1121. 
 unlawful: punishment for. Navy, 990. 
 useless papers at na\'y yards and stations, 1401. 
 in executive departments, 1202, 1203. 
 in buildings under control of departments, 1248. 
 on naval vessels, 1381. 
 vessels captured as prize, 1141, 1142. 
 war suppUes, buildings, lands, etc., 1516. 
 Small stores fund used for purchase of small stores in 
 
 Navy, 1184. 
 Stealing, embezzling, misappropriating, unlawfully 
 
 selling, etc., 990, 1325. 
 Taxation by States, 48. 
 Tests of naval cannon, 1195. 
 Timber; clearance of vessels laden with, 1125. 
 
 lands, 1087-1089. 
 Trading in; punishment for disbursing officers and 
 others, 1332. 
 to contractor as part payment of money due, 778. 
 Transfer of, 355, 356. 
 
 ammunition, etc., by War Department to other 
 
 departments, 1527. 
 approval of Congress required, 194. 
 Army motor vehicles to other departments, 1531. 
 Army ordnance stores to other departments; price 
 charged, etc., 1388. 
 
 1672 
 
INDEX. 
 
 PUBLIC PROPERTY— Continued. 
 
 Transfer of, between navy yards requires legislative 
 authority, 779. 
 books and maps to Library of Congress or District 
 
 of Columbia public library, 1280. 
 docks, etc., from Shipping Board to Navy De- 
 partment, 1555. 
 lands, buildings, furniture, etc., to PubUc Health 
 
 Service, 1526. 
 lands and buildings to Public Health Service, 1559. 
 lands; authority of executive, 295. 
 lands to jurisdiction of Navy Department, 1457. 
 naval ordnance to War Department; payment for, 
 
 1515. 
 naval records from other departments to Navy 
 
 Department, 12S3, 1295, 1389. 
 naval vessels to Shipping Board, permanently or 
 
 temporarily, 1467. 
 printing equipment to PubUc Printer, 1531. 
 supplies, real estate, etc., between Army and 
 
 Na%'y, 1528. 
 without charge between bureaus of Navy Depart- 
 ment, 1203. 
 Uniforms, sale of prohibited, 1121. 
 Useless papers; sale of, 1202, 1203, 1248, 1381, 1401. 
 Vessels, Navy, ownership; in hands of builders, 773. 
 Wasting or permitting same; punishment, Navy, 985. 
 PUBLIC QUARTERS: 
 
 Definition of, 698. 
 PUBLIC TRIAL: 
 
 Naval court-martial, 1030. 
 Right of accused, 129, 130. 
 PUBLIC VESSELS: 
 
 See Vessels; Vessels of the Navy. 
 
 Regulations as to licenses, etc., not applicable to, 1135. 
 PUBLIC WORKS: 
 
 Contracts not to overobligate appropriations, 1116. 
 
 Estimates; form of, 1102. 
 
 Improvements on leased lands to become property 
 
 oflessor, 1508. 
 Plans to accompany estimates submitted to Congress, 
 
 1102. 
 Protection of laborers and material men, 1227, 1228. 
 PUNISHMENTS: 
 
 See Arrest; Articles for the Government of the Navy; 
 Commanding officers; Courts-martial; Jeopardy; Rep- 
 rimand; Sentence; Suspension. 
 Bad-conduct discharge excludes benefit of war-risk 
 
 compensation, 1500. 
 Capital, excludes benefits of war-risk compensation, 
 
 1500. 
 Coast Guard personnel, operating as part of Navy, 1455. 
 Commanding officer — 
 
 acting, may infUct, 1005. 
 
 may iniUct upon officers and crew of vessel, 1002. 
 of hospital or hospital ship may Inflict, 1441. 
 punishments Inflicted by, do not bar trial, 119. 
 Confinement may be adjudged by deck courts, 1308. 
 Continuing; remission of, by reviewing authority, 
 
 courts-martial, 1052, 1053. 
 Court-martial sentence required for, except as other- 
 wise specified, 1002. 
 Cruel and unusual, 1063. 
 decisions relating to, 134. 
 due process of law, 125. 
 Death, prohibited in the Navy unless specifically 
 
 authorized, 1034. 
 Deck courts, what may be imposed by, 1308, 1309. 
 Desertion in time of war; forfeiture of citizenship 
 rights, 1078. 
 
 PUNISHMENTS-Continucd . 
 
 Discharge of officer for moral imfitnoss for promotion, is 
 
 not, 630. 
 Discretionary with courts-martial, 979, 981, 983, 984, 990, 
 
 991, 994, 996. 
 Dishonoral)lo discharge excludes benefit of war-risk 
 
 compensation, 1.500. 
 Dismissal; excludes benefit of war-risk compensation, 
 1500. 
 mandatory in certain cases, 994, 1029, 1031, 1064, 
 1287. 
 Fines; courts-martial authorized to adjudge, 990. 
 imprisonment until payment of, 1063, 1064. 
 naval hospital fimd credited with, 11.59. 
 Forfeiture of pay ; deck courts may adjudge, 1308. 
 summary courts-martial may adjudge, 1007. 
 General courts-martial may inflict same as summary 
 
 courts-martial, 1010. 
 Health of accused endangered by; different pimish- 
 
 ment to be substituted, 1009. 
 Imprisonment; beyond term of enlistment, 1064. 
 
 courts-martial authorized to adjudge, 9&3, 984, 990. 
 of midshipmen for brutal or cruel hazing, 12S7. 
 place of, designated by reviewing authority, court- 
 martial cases, 1064. 
 imtil payment of fine, 1063, 1064. 
 Infamous, defined, 118, 134. 
 Infliction of, on naval vessels, restricted, 1002. 
 Irons, use of, abolished, exceptions, 1309. 
 Limitation of; Coast Guard, 1455. 
 
 time of peace; naval courts-martial, 1062-1064. 
 Officers authorized to inflict without court-martial, 
 
 1441. 
 On naval vessels, power of militia officers, 71. 
 Prohibited in the Navy; flogging, branding, etc., 1034. 
 Repeated offenses, 1003, 1004. 
 Reprimand without court-martial is not, 351. 
 Ship's log; to be entered in, 1002. 
 Statute of Hmitations applicable to court-martial 
 
 trials or other pimishments, 1057-1000. 
 Summary courts-martial, 1006, 1007, 1309. 
 PURCHASE: 
 See Contracts. 
 
 Discharge from Navy or Marine Corps, 1222, 1436. 
 Furlough in lieu of discharge by, 1436. 
 QUARANTINE: 
 
 Expenses, naval vessels; estimates and appropriations 
 
 for, 1103. 
 Loan of naval vessel for, US6. 
 
 Measures adopted to protect naval forces against dis- 
 ease, 1517. 
 State laws, 50. 
 QUARRELS: 
 
 Punishment for, 984. 
 Punishment for fomenting, 984. 
 QUARTERMASTER, MARINE CORPS: 
 
 Counted as colonel in making computations, 1460. 
 Issue of clothing, etc., in lieu of lost or damaged, 1493. 
 Pay and allowances, 1460. 
 Rank of, 929, 1460. 
 QUARTERMASTER'S CLERKS: 
 
 Appointment as warrant officers in Marine Corps, 
 1462. 
 QUARTERMASTER'S DEPARTMENT, ARMY: 
 Supplies and transportation furnished by, to naval 
 and marine detachments, 433. 
 QUARTERS: 
 
 See Commutation; Heat and light. 
 Allowance; number of rooms, 943. 
 Application for; commutation allowed, 702. 
 
 1673 
 
INDEX. 
 
 QIIAUTERS— Continued. 
 Assignment of, (i97. 
 
 less than authorized number of rooms, 699. 
 Care of; imauthorized use of (iovernment laborer, 702. 
 Civilian professor at Naval Academy, 701. 
 Contracts for, in excess of appropriations, 1116, 1288. 
 Kxchange of; unauthorized agreement, 702. 
 Ceneral provisions relating to, C9.5-702. 
 C.uest of another officer, 698 699. 
 Hire of, 697, 698. 
 
 in Washington, 950. 
 Marine band: second leader, 952. 
 Mates: same as second lieutenants, 697, 827, 1275. 
 Navy: contracts permitted in excess of appropriations, 
 
 1116, 12SS. 
 No public quarters: defined, 698. 
 Public quarters, defined, 698. 
 
 Retired officer detailed to educational institution, 440. 
 Secretary of the Navy to determine when public quar- 
 ters not available, 1514. 
 Shore, personnel of training force, 124S. 
 Telephones: restrictions on installation and use of, 
 
 1384. 
 Temporarily absent from station, 701. 
 Warrant officers, commissioned, 1267. 
 
 same as second lieutenants, 697, 827, 1267, 1275. 
 RADIO: 
 
 Operation of (Jovernment stations, 1556, 1557. 
 Regulation of radio communication; general provi- 
 sions, 1372-1379. 
 Site for naval radio station procured from other de- 
 partments, 1457. 
 RAILROADS: 
 
 Alaskan; transportation of coal; employment of naval 
 
 officers, etc., 1393, 1394. 
 Land grant, 1179, IISO. 
 Payment for mileage books, commutation tickets, 
 
 etc., in advance of travel, 1282. 
 Reduced rates for disabled soldiers, sailors and 
 
 marines traveling on furlough, 1554. 
 Transportation of troops and material during war, 1 198, 
 1465. 
 RANK: 
 
 See Precedence; Relative rank. 
 
 Acting assistant surgeons, 529, 675, 1261. 
 
 chaplains in Navy, 1396. 
 Act of August 29, 1916, not to reduce, 1435. 
 Admiral; conferred on Chief of Naval Operations, 1418. 
 
 conferred on officers of fleets, 1481. 
 Advancement; examination of staff officers for, 1473, 
 1481, 1482. 
 commissions not necessary, 102. 
 commissions to be issued to retired officers, 1368. 
 in numbers for conduct in battle or extraordinary 
 
 heroism, 453, 454, 734-736, 921, 933. 
 in rank, without change of grade, 652, 682. 
 
 Senate's consent required, 734. 
 of fleet officers to admiral and \'ice admiral, 1481. 
 of retired officers; commissions furnished, 1368. 
 of retired officers; jurisdiction of accounting offi- 
 cers, 238. 
 of staff officers, 1426, 1513. 
 of staff officers; examinations, 1473, 1481, 1482. 
 to "flag officer," 576, 660. 
 Aid or executive of commanding officer, 669. 
 Antedating on promotion, 649-651, 734, 931, 1390, 1459. 
 after suspension, 731-733. 
 commencement of pay, 830-8:38, 1178, 1390. 
 Antedating; retirement of officer ^vith rank of higher 
 
 grade, 912. 
 Army and Marine Corps officers, 930, 931. 
 
 RANK— Continued. 
 
 Army officers by relation to the Navy, 662. 
 Assimilated; warrant officers, 704. 
 Assistant civil engineers, 1474. 
 naval constructors, 1266. 
 surgeons, 1273, 1426. 
 Brigadier generals and rear admirals of lower half, 
 
 665-667,1501. 
 Chaplains, 679, 680, 1268, 1396. 
 Chief machinists, 1314. 
 Chief of Naval Operations, 1418. 
 Chiefs of bureaus, 367, 368, 369, 670-672, 1512. 
 retired, 372-376. 
 subsequently retired, 376, 1303. 
 Chief warrant officers, 1267, 1314. 
 Civil engineer corps, oflicers of, 678. 
 rear admiral authorized for, 678. 
 Coast and Geodetic Survey, members ser\^g with 
 
 Na\'y, 1480. 
 Coast Guard officers, 705. 
 Commissioned warrant officers, 1267, 1314. 
 Commodore changed to rear admiral, 672. 
 Commodore; retired staff officers, 685. 
 Congress may change officer's rank, 92, 910, 911. 
 Construction corps, 505, 677, 678. 
 Court-martial members, 1031. 
 
 not to be junior to accused, except, 1015, 1017. 
 Dental officers, Na\-y, 1421. 
 Flag officer: commander of squadron, 576, 660. 
 Former bureau chief subsequently retired, 376, 1303. 
 General provisions relating to, 662-706. 
 Grade distinguished; deflnitions, 378, 499, 577, 635-638, 
 
 682, 686. 
 Grade synonjTnous; definitions, 379, 466, 678, 680, 907. 
 Grade, title, and office distinguished; definitions, 449, 
 
 450, 683, 837, 910. 
 Graduates of Naval Academy, 687, 765. 
 Judge Advocate General, 968, 1186, 1187, 1512. 
 
 retired, 372-376, 673, 968. 
 Machinists, with other warrant officers, 1269. 
 Marine Corps and Army officers, 930, 931. 
 Marine Corps; commandant of, 928, 929, 1392, 1512. 
 officers reinstated or given probationary appoint- 
 ments, 1461, 1462. 
 staff officers, 929, 1460. 
 Medical corps, officers of, 673-676. 
 Midshipmen, after graduation, 687, 765. 
 Naval constructors, 1266. 
 Office distinguished; deflnitions, 837, 910. 
 Passed assistant surgeons, 675, 676. 
 Pay from date of; graduates of Naval Academy com- 
 missioned in Navy and Marine Corps, 1221, 1222. 
 of officer advanced for heroism, 734. 
 on promotion, 830-838; 1178; 1390. 
 Pharmacists and chief pharmacists, 1420. 
 Precedence according to; line and staff officers in 
 processions, etc., 704. 
 of court-martial members according to, 704, 1016. 
 Professor at Naval Academy; officer detailed as, 667. 
 Professors of mathematics, 680. 
 Provisional, Naval Reserve Force, 1444. 
 Rear admiral; rank temporarily assigned, 665. 
 
 rank with major generals, 662, 665. 
 Regulations governing, may be changed by Secretary 
 
 oftheNa\T, 466. 
 Relative rank changed to actual rank, 1265. 
 Retired officers, 631. 
 
 active duty during war or emergency, 1512, 1513. 
 chiefs of bureaus; age or length of service, 672, 673. 
 civil war service, 1266, 1293, 1312. 
 considered as having been retired with higher 
 rank, 912. 
 
 1674 
 
mDEX. 
 
 RANK— Con tinu ed . 
 
 Ketired officers, dental corps, 1422. 
 
 Judge Advocate General, Navy, 372-376, 673, 968. 
 
 Marine Corps, 964. 
 
 Medical Corps; next higher grade, 675. 
 
 retired for purpose of creating vacancies, 1265. 
 
 same as when retired, 1189. Morinp 
 
 who tail physically for promotion in the Marine 
 
 Corps, 965. vr<,-.rv 
 
 who tail physicaUy for promotion in the Na%Tr, 
 
 1366,1433. , ., , 
 
 Retired staff officers; retired tor age or length of 
 service, 685. . „ ks? 
 
 retired tor causes incident to the service, 687. 
 Secretaries to admiral and \ice adnural, 455. 
 Selection, officers promoted by, 1433. 
 Senate must consent to changes in, 734. 
 Special act restoring to officer, 733. _ 
 
 Staff officers, according to date of commission, 1429. 
 
 advancement, 680-685. 
 
 advancement above lieutenant commander, 1513. 
 
 below commander, 1426. 
 
 examinations, 1473, 1481, 1482. 
 command not to be exercised because of, 702, 1265. 
 distribution in, 1427. 
 general provisions relating to, 673-685. 
 Marine Corps, 929, 1460. 
 
 not entitled to additional quarters by virtue of, 695. 
 not to confer miUtary command, 1265. 
 rear admiral not a grade, 682. 
 Superintendent of Naval Observatory, 1276, 1277. 
 
 Supply corps, officers of, 676, 677. 
 
 rear admiral autliorized for, 676, 677. _ 
 
 Suspension from, continuing punishment; reimsslon 
 
 of, 1052. 
 Titles of staff officers not changed by, 1265. 
 Vice admiral; officers of fleets to have, 1481. 
 Warrant officers; assimilated, 704. 
 machinists, 1269. 
 Marine Corps, 1462. 
 on promotion, 1267. 
 RANK AND PRECEDENCE: 
 
 General provisions relating to, 662-706. 
 
 RAPE: 
 
 Assault with intent to commit, 1349. 
 
 Carnal knowledge of female under sixteen, 1349. 
 
 Punishment tor, 1349. 
 
 RATINGS: 
 
 Advanced or reduced; pay of, 868, 869. 
 Completelists of men to be furnished Secretary of the 
 
 Navy, 995. 
 Established in hospital corps, 1419, 1420. 
 
 in Navy, 534, 1423, 1494, 1495, 1552. 
 Naval Flying Corps, 1440, 1441. 
 Naval Reserve Force, 1443, 1444. 
 Naval vessels, 774. 
 
 Reduction in, by commanding officer, 1002. 
 by summary court-martial, 1006. 
 by summary court-martial, f or incompetency.lOOT^ 
 secretary of the Navy may estabUsh m Navy and 
 Str::t:?^?accompany on transfer toother 
 
 vessels, 995. 
 RATIONS: 
 
 See Commutation; Subsistence. 
 
 Additional, special cases, 901. 
 
 Army, funli^^d naval and marine detachments co 
 
 operating with, 433. 
 Commutation of; public money, 232. 
 
 paid to messes, 1279. 
 
 value of, 901, 902. ,,-„„„, sq« 
 
 Court-martial prisoners; commutation of ,898. 
 
 RATIONS-Continued. 
 
 Discharged enUsted men, pending reenlistment, 120L 
 
 1202. 
 Enlisted man, 895-898, 1194. 
 Extra allowance for night watches, 899, 900. 
 General provisions relating to, 893-902. 
 Hospitals; allowed rations for patients, 1160. 
 
 officers and men temporarily in, 898. 
 Issue of fruits with fresh meat, 9(X). 
 Judge Advocate General not allowed, 897. 
 Marine Corps, enlisted men, 953, 954, 1531. 
 officers not entitled to, 954. 
 
 Midshipmen, 893, 1194. 
 
 Navy; constituents of, 898, 899. 
 
 Nurse Corps, female, 807, 808. 
 
 Officers attached to seagoing vessel , 893-895. 
 
 Property accounts; jurisdiction of accounting officers, 
 
 234. 
 Refuse of, is Government property, 899. 
 Regulations governing, prescribed by Secretary of the 
 
 Navy, 1194. 
 Retired officers, 916. 
 Short allowance, 901. 
 Stopped for the sick; accounting for, 901. 
 Substitutions in, 899-901. 
 REAPPOINTMENT: 
 
 See Appointments; Reinstatement; Restoration. 
 
 REAR ADMIRALS: 
 
 Additional numbers in grade, 736. .„ v,„m 
 
 Advancement from lower to upper half of grade held 
 to bo a promotion, 736. 
 
 to rank of admiral or vice admhal, 1481. 
 Aids to; pay, 815-817, 1303. 
 
 regulations governing; ^'^l^^ty of 785. 
 Brigadier generals rank with lower half, 665-667 loOl. 
 Captains considered as having been retired with rank 
 
 of 912. 
 CiWl engineers; rank authorized for, 678. 
 Commodore changed to, 375, 672, 686. 
 Construction Corps; rank authorized for, 677. 
 Detail to selection boards, 1430. 
 Distribution between upper and lower half, line and 
 
 stafl, 1428. 
 Flag officer construed to mean, 577. 
 Number in stafl corps, 1427, 1428. 
 Pay, 791, 797. 
 
 first and second nine, 1264, 1301. 
 
 upper and lower half, line and stafl, 1429. 
 Promotion by selection to, 1430, 1513. 
 
 by selection to; staff corps, 1513. 
 
 from lower to upper half, 730. 
 
 to, in time of peace, 451, 455, 721, 722. 
 
 to, in time of war, 454. 
 Proportion of in line, 1425. 
 
 Rank of lower half, with relation to brigadier generals, 
 665-667, 1501. 
 
 temporarily assigned, status of, 66o. 
 
 with major generals, G62. 
 
 whether upper or lower half , 665. 
 
 Selection of officers to command squadrons, with rank 
 
 of flag officer, 576, 660. 
 Staff officers permanently commissioned with rank of, 
 additional numbers, 1429. 
 rank of not a grade, 682. 
 Supply Corps; ^ank authorized in, 67MV7. 
 Two grades for pay purposes, 447, 664r*b5. 
 
 REBEL: 
 
 See Enemy; Insurrection; liar. 
 Intercourse with, punishment for. 979. 
 REBELLION: 
 
 Enlisting to serve against Umted States, 1318. 
 Inciting insurrection, etc., 1317. 
 
 54641^^—22 106 
 
 1675 
 
INDEX. 
 
 RECEIPTS: 
 
 Disbursing officers taking, for larger sum than paid, 
 
 1329, 1331. 
 False; punishment for gi\'tng or receiving, 990, 1324. 
 Forgcrj' of, 1322, 1323. 
 RECEIVERS: 
 
 Appointment for contractor building naval vessel, 773. 
 RECEIVING SHIPS: 
 
 Home on, for men honorably discharged, 1201-1202. 
 Sea pay for duty on, 879. 
 Status of; not seagoing vessels, 897. 
 RECEIVING STOLEN GOODS: 
 
 Buying, etc., property of United States illegally sold, 
 
 etc., 990. 
 Punishment for, 1328, 1350, 1351. 
 RECESS APPOINTMENTS: 
 Acceptance of, 461, 462. 
 Accounting officers notified of, 1072. 
 Decisions relating to, 99, 100. 
 No salary until confirmation if vacancy existed while 
 
 Senate in session, 1066. 
 Officers advanced for heroism, 735. 
 Rear admirals holding, are qualified for membership 
 
 on selection boards, 1431. 
 Retirement of officers holding, 640, 651. 
 Revocation of, 100. 
 
 Status of officers if not confirmed, 651. 
 Tempoary adjournment of Senate, 33, 217. 
 
 appointments to fill vacancies occurring in depart- 
 ments, 216, 217. 
 RECOG^^ZANCE: 
 
 Witnesses required to give, 425, 426. 
 RECORDER: 
 
 Deck court; who may serve as, 1308. 
 Oaths to witnesses administered by, 217. 
 Summary courts-martial, 1006. 
 RECORDS: 
 
 Accoimting officers refused information from, 238, 239. 
 
 Alteration of, 357. 
 
 Alteration of; veto of bill requiring, 35. 
 
 Bonds; officer not entitled to old bond on giving new 
 
 one, 495. 
 Contracts; bidstoberecordedat time of opening, 1110. 
 copies to be filed in Returns Office, 397. 
 proposals to be recorded and reported annually 
 
 to Congress, 1113. 
 to be filed in offices of accounting officers, 1118. 
 Copies of for use in court, 424, 426, 427, 1009, 1010, 1023. 
 Court of Claims may call on departments for, 1364, 1365. 
 Court of inquiry proceedings; admissible before 
 courts-martial, 1056, 1057. 
 how authenticated, 1056, 1057. 
 judge advocate to keep, 1056. 
 Courts-martial; conclusive; can not be collaterally 
 attacked, 1036. 
 evidence before examining boards, 718, 719. 
 judge advocate to keep, 1019. 
 signed by members and judge advocate, 1034. 
 Deck courts, 1309. 
 Departmental; custody of 193, 194. 
 
 quasi confidential, 194. 
 Diseases; treatment and character of, 466. 
 Evidence in trials for embezzlement, 1330, 1331. 
 Examining Vjoards, promotion, 724. 
 Falsification of, 1336, 1368. 
 Forging, 1322. 
 Larceny of, 1328. 
 Naval; transfer to the Navy Department, 1283, 1295, 
 
 1389. 
 Navy Department, custody of, 352, 361. 
 
 RECORDS-Continued. 
 
 Navy Department, examining boards to consider in 
 promotion cases, 722, 723. 
 general provisions relating to, 354-356. 
 submitted to President in promotion cases, 724. 
 Production of, before commission to take testimony, 
 423. 
 in court, 194. 
 Public property; heads of departments required to 
 
 keep, 227. 
 Removal of; custodian should use force to prevent, 194. 
 
 papers from, 357. 
 Retiring board; action on by the President, 616. 
 Selection boards furnished with, 1431. 
 Students and others afforded facilities for study and 
 
 research, 1275. 
 Summary courts-martial; filing and destruction of, 
 1009, 1311. 
 recorder to keep, 1006. 
 Treasury Department; transcripts for use in court, 427. 
 Unauthorized removal and use of, 1326. 
 Useless papers at navy yards and stations, 1401. 
 in buildings under control of departments, 1248. 
 in executive departments, 1202, 1203. 
 on naval vessels, 1381. 
 RECRUITING: 
 
 See Enlisted men; Enlistments: Fraudulent enlistmeni. 
 Advertising, 1382, 1515. 
 
 Appropriation, "Transportation, recruiting, and con- 
 tingent:" expenses chargeable to, 1274, 1275. 
 Estimates and appropriations for expenses of. Navy, 
 
 1103. 
 Minors; restrictions governing enlistment, 1402, 1403. 
 Oaths administered by recruiting officers, 1240. 
 Obstructing, during war, 1484. 
 Penalty for enlistment of prohibited classes, 994. 
 Postmasters making enlistments, 1419. 
 Premiums, Navy; estimates and appropriations for, 
 1103. 
 RED CROSS: 
 
 Detail of Navy medical officers to, 1436, 1437. 
 Loan of naval equipment, etc., to, 1394, 1395. 
 Use of, in time of war, 1369. 
 REDUCTION: 
 
 Of army; decisions relating to, 98-99. 
 Officers; to a lower office, 988. 
 to enlisted rating, 524, 988. 
 
 confirmation of sentence, 1045. 
 Pay of office; executive can not reduce statutory com- 
 pensation, 208. 
 Rating of enlisted men; by commanding officer, 1002. 
 by summary court-martial sentence, 1006, 1007. 
 pay, 868, 869. 
 Warrant officer to enlisted man; court-martial sen- 
 tence, 524. 
 REENLISTMENT : 
 
 Construed; held to be enlistment, 935. 
 Pay; Marine Corps, 883-891, 947. 
 REFUSE: 
 
 Garbage from general mess public property, 899. 
 REGATTAS: 
 
 Regulations; enforcement of by head of any depart- 
 ment, 1300, 1301. 
 REGI3IENTS: 
 
 Marine Corps, 936. 
 
 commanding officer may convene summary courts- 
 martial, 1441. 
 REGISTER: 
 
 See Kavy Register. 
 
 Biennial, public officers and employees; data required 
 for, 228, 1235, 1236. 
 
 1676 
 
INDEX. 
 
 REGISTER— Continued. 
 
 Naval vessels stricken from; annual report to Congress, 
 1190. 
 sale of, 1192. 
 status of, 779. 
 Navy; advancement for war service designated in 
 1275, 1276. 
 number ofextra copies to be printed, 1235. 
 Official Register of the United States to contain names, 
 etc., of naval officers, 1235, 123G. 
 data to be furnished for, 22S, 1235, 1236. 
 printing and distribution of, 1235, 1236. 
 REGISTER OF WILLS: 
 
 District of Columbia: guardianship papers prepared by, 
 without charge, 1217. 
 REGULAR DEALERS: 
 
 Bids submitted by persons who are not, 1114. 
 REGULATIONS: 
 See Rules of the road. 
 Absence from duty caused by misconduct; procedure, 
 
 1436. 
 Accounting officers bound by, Army, 241. 
 bound by, Navy, 198, 273, 786, 787. 
 refusing to follow, 838, 839. 
 Acting appointments of machinists made permanent 
 
 according to, 1269. 
 Administration of law and justice in the Navy; validity 
 
 of, 785, 786. 
 Advances of pay; vaUdity of, 838, 839. 
 Army; Marine Corps subject to, 956, 961. 
 Attorney General's opinion as to interpretation or 
 
 validity of, 298, 299. 
 Aviation schools; Coast Guard personnel subject to, 
 
 1456. 
 Board of inquiry at Naval Academy governed by, 
 
 12.86. 
 Bonds, liability can not be changed by, 211. 
 Business of Navy Department; reorganization of, 360. 
 Cash rewards to civilians for suggested improvements, 
 
 1514. 
 Coast and Geodetic Survey; prescribed by Secretaries 
 of Navy, War and Commerce, 1480. 
 subject to Navy, 1479, 1480. 
 Command of vessels and squadrons; President to for- 
 mulate, 1277. 
 Congress to make, for naval forces, 58. 
 Contracts construed in connection with, 787. 
 Court-martial proceedings; validity of, 785, 786. 
 1 service of commissioned officers of Coast Guard, 
 etc., as members of, 1494. 
 Customs equivalent to, 196, 885. 
 Death gratuity; designation of person to whom pay- 
 able, 1.546, 1547. 
 Deceased personnel, Navy; disposition of efiects, 786, 
 
 1503. 
 Decisions relating to, 194-201, 260, 261, 784-787. 
 Deck courts; President to issue, 1309. 
 Definition of, 195. 
 Delegation by Congress of power to make, 59, 195, 784, 
 
 787. 
 Departmental, authority to make, 193. 
 Disbursing officers: duties of, 786. 
 
 responsibility for disbursements, 267. 
 Discharge prior to expiration of enUstment; Secretary of 
 
 Navy to prescribe, 1381, 1382. 
 Discharged enlisted men subject to, pending reenUst- 
 
 ment, 1201, 1202. 
 Duties of Supply corps; authority to make, 468. 
 Enlisted men; qualifications for specified ratings, 1495. 
 
 subject to until discharged, 555, 556. 
 Executive power to establish, 82. 
 Footnote; effect of as regulation, 1064. 
 
 REGULATIOXS-Continued. 
 
 Hazing, rules to prevent at Naval Academy, 1281. 
 Heads of departments, concerning research by stu- 
 dents and others, 1275. 
 Inconsistent with law; discharge of enlisted men, 524, 
 
 784. 
 Lighthouse Service; prescribed by Secretaries of War, 
 Navy and Commerce, jointly, 1457. 
 subject to Navy, during war or emergency, 1456. 
 Limitations upon power to make, 198, 784. 
 Loan of naval equipment, etc., to Red Cross, 1394, 1395. 
 Loan or gift of ordnance, etc., to societies and munici- 
 palities, 1249. 
 Mail clerks. Navy, governed by postal laws and regula- 
 tions, 1306. 
 Manual for government of naval prisons, 786. 
 Marine Corps; President to prescribe, 956. 
 Marine parades and regattas; enforcement of by heads 
 
 of departments, 1300, 1301. 
 Medals of honor, distinguished-service medals and 
 
 Navy crosses, 1522, 1523. 
 Must be consistent with law, 524, 784. 
 Naval Academy, 738, 739. 
 
 issue of clothing to midshipmen, 770. 
 statutes interpreted in connection with, 787. 
 violations of to be promptly reported, 1287. 
 Naval Home; disposition of effects, deceased inmates, 
 1395. 
 disposition of pensions due beneficiaries, 1395. 
 Secretary of the Navy to prescribe, 1160. 
 Naval Observatory: board of visitors to prepare for 
 
 Secretary of the Navy, 1276. 
 Naval Reserve Force; 1443-1447, 1449, 1453. 
 promotions, 1510. 
 
 subject to Navy, 1446, 1447, 1451, 1511. 
 Navigation, etc.. Pearl Harbor; Secretary of Navy to 
 
 prescribe, 1382. 
 Navy, authority to issue, 784. 
 
 approval of President; whether personal action 
 
 required, 787. 
 changes in, 784. 
 
 copy to be furnished officers, 787. 
 Marine Corps subject to, 956, 961. . 
 retired officers subject to, 631. 
 Pay clerks, Navy; appointment, duties, etc., 1406, 1407. 
 Practice equivalent to, 885. 
 Precedence; graduates of Naval Academy; validity of, 
 
 689. 
 President can not usurp powers of Congress, 781. 
 Private property; claims for loss or damages in naval 
 
 service, 1493. 
 Proliibition of liquors near military camps and to 
 
 members of the service, 1477, 1478. 
 Promotion of warrant officers, 1267. 
 Property returns; by storekeeper at Naval Academy, 
 1304. 
 charges against officers losing public property, 1223. 
 Purchase of copyrights and plates for Hydrographic 
 Office, 12:56. 
 discharge; President to prescribe, 1222. 
 Rank and precedence; Secretary of the Navy may 
 change, 466. 
 enlisted men and midshipmen. Navy, 1194. 
 Rations of enlisted men, Marine Corps, 1531. 
 Sale of old material; Secretary of the Navy may pre- 
 scribe, 1190. 
 of subsistence stores, etc., 1313, 1314, i;i91, 1464. 
 of uniforms, etc., to marine officers at cost, 1531. 
 Secretary of the Navy not boimd by, 352. 
 Ships' stores profits, expenditures from, 1359. 
 Statutes interpreted in connection with, 787. 
 Summary court-martial proceedings, 1009, 1311. 
 
 1677 
 
INDEX. 
 
 REGULATIONS— Continued. 
 
 Supplies; use, preservation and disposition of, 787, 788. 
 Treasury, 259. 
 
 to be observed respecting public moneys, 1098. 
 Usages equivalent to, 196, 885. 
 Validity of; accounting officers' decision not binding, 
 
 239. 
 Validity of; advances in pay to naval personnel, 838, 839. 
 
 rule for testing, 199. 
 Violating or refusing obedience to, punishment. Navy, 
 
 985. 
 Waiver of, 200. 
 
 Weight of; force of law, 197, 784. 
 REIMBURSEMENT: 
 
 See Claims; Damages; Effects; Privaie property. 
 Commutation is form of, 702. 
 REINSTATEMENT: 
 
 Civil employees; honorably discharged from military 
 service, 1524. 
 members of National Ouard and Medical Reserve 
 
 Corps, 1464. 
 members of Officers' Reserve Corps, 1476. 
 service credited for retirement, 1541. 
 transferred to Census Office, 1526. 
 who served in Army or Na\'y during war with 
 Germany, 1530. 
 Dismissed officers, 94, 582, 1503. 
 Former officers, honorably discharged from the Navy, 
 
 1393. 
 Marine officers, as second lieutenants, 1461. 
 Midshipmen, 747, 749, 761, 762. 
 
 Naval officers dropped from roljs for unauthorized 
 absence, etc., 1503. 
 RELATIVE RANK: 
 See Precedence; Rank. 
 
 Abolished in the Navy; changed to actual rank, 1265. 
 Army and Navy officers, active and retired, 662. 
 Brigadier generals and rear admirals of lower half, 
 
 665-667, 1501. 
 Command not to be exercised by staff officers because 
 
 of, 702. 
 Defined, 674. 
 Naval officer detailed as professor at Naval Academy 
 
 and officers of Army, 667. 
 Nurse Corps, female. Army, 808. 
 Officers of Marine Corps and officers of the Navy, 667. 
 RELEASES: 
 
 President authorized to obtain where lands purchased 
 for United States, 1121. 
 RELIGION: 
 
 Form of worship; chaplains, 502. 
 REMISSION: 
 
 Sentences imposed on Coast Guard personnel, 1455. 
 Sentences of courts-martial, 85. 
 
 courts-martial, by Secretary of the Navy, 1309. 
 deck courts, 1308. 
 general courts-martial, 1051-1055. 
 summary courts-martial, 1009. 
 suspension, 669. 
 REMOVAL OF OFFICERS: 
 
 See Dismissal; Discharge; Dropped; WhoUy retired. 
 RENTED BUILDINGS: 
 
 District of Columbia; others may be rented instead of 
 ones occupied, 1187. 
 reports concerning, 1218, 1391, 1543. 
 specific appropriation required, 1181, 1182. 
 Estimates and appropriations for, Navy, 1103. 
 Reports to Congress in annual estimates, 1191. 
 RENTED LANDS: 
 
 Public buildings erected on, 285, 1508. 
 
 REOPENING OF ACCOUNTS: 
 
 See Accounts. 
 REPAIRS: 
 
 See Public property; Vessels of the Navy. 
 Estimates and appropriations for. Navy, 1103. 
 Naval vessels, 776, 777. 
 
 Public buildings and improvements; contract not to 
 exceed appropriation, 1116. 
 REPAIRS AND PRESERVATION: 
 
 Appropriation for: use at naval training stations, 1530. 
 REPE.\L: 
 
 See Statutes. 
 
 Acts embraced in Revised Statutes, 1173. 
 
 Effect of, on former statute, 187. 
 
 on penalties, pending prosecutions, etc., 187. 
 REPE.\TED TRAVEL: 
 
 Actual expenses allowed for, 842, 843, 1272-1274, 1278. 
 REPLEVIN: 
 
 Public property can not be obtained by private par- 
 ties, 194. 
 REPORTS: 
 
 See A ppropriations; Contracts; Estimates; Printing and 
 
 binding; Public property. 
 Accounts; delinquency of officers required to render, 
 
 1226. 
 Annual; extracts from, included in book of estimates, 
 1179. 
 fiscal year defined, 257. 
 
 time for submitting copy to printer, 227, 1416, 1417. 
 Armor plants; cost of products, 1419. 
 Automobiles: quarterly, to Bureau of Yards and 
 
 Docks, 1546. 
 Board of Visitors, Naval Observatory, to submit, 1276. 
 Buildings owned in District of Columbia: statement 
 concerning, 1553. 
 rented, included in estimates, 1191. 
 
 in District of Columbia, 1218, 1391, 1543. 
 Bureau of Supplies and Accounts, to Congress: money 
 value of supplies on hand, etc., 1203. 
 to Secretary of the isavj; receipts and expendi- 
 tures, 1304. 
 Chaplains required to make, annually, 503. 
 Checks outstanding, 1417. 
 Chief clerks to submit monthly, 209. 
 
 Civil establishment; employed under Increase of 
 the Navy and other general appropriations, 381, 
 1194, 1272, 1312, 1313, 1418, 1419. 
 in departments, 227. 
 inefficient employees, 1204. 
 
 number and compensation of professors and in- 
 structors at Naval Academy, 1457. 
 Claims allowed; Secretary of the Treasury to Congress, 
 
 1193. 
 Claims for damages caused by naval aircraft, 1545. 
 caused by naval personnel, 1527. 
 caused by naval vessels, 1358, 1359. 
 Commanding officers to submit to Secretary of the 
 
 Navy, 573, 901, 995. 
 Condition of business in department; submitted 
 monthly to head of department, 1211. 
 submitted quarterly to President, 1221. 
 Contingent funds; expenditiu-es from, 226. 
 Cost of work, naval appropriations; direct and indirect 
 
 charges, 1365, 13f>6. 
 Departmental publications; cost and distribution, 
 
 etc., 1556. 
 Disbursing officers; annual statement of checks out- 
 standing, 279. 
 Estimate of cost to print usual number must accom- 
 pany, 1230. 
 
 1678 
 
INDEX. 
 
 REPORTS— Continued . 
 
 Exchange of typewriters, adding macliines, etc., in 
 
 part payment for new ones, 1409, 1410. 
 Expenditures; to be submitted annually to Congress, 
 226, 1183. 
 to Secretary of Treasury, 261, 265, 266. 
 Failure to make at time required by law or regulaton, 
 
 punishment, 1331. 
 Fake and fraudulent, 902, 1170, 136S. 
 General provisions relating to, 3S1-385. 
 Indebtedness of disbursing officers, 1226. 
 Not to be distributed with compliments of officer, 1236. 
 Printing of, from bureau chiefs; head of department 
 to direct, 1238. 
 number of copies limited, 1238. 
 time for furnishing copy to Public Printer, 227, 
 1416, 1417. 
 Proposals for contracts; submitted annually to Con- 
 gress, 1113. 
 Publications received and distributed, 1239. 
 Public Printer to Congress, work done for departments, 
 
 1231. 
 Quarterly; publication of Navj' receipts and expendi- 
 tures, 262. 
 Rations, short allowance of; commanding oflBcers to 
 
 report to Navy Department, 901. 
 Relief granted by Secretary of the Navy to disbursing 
 
 officers for loss of funds, 1527, 1528. 
 Repairs and changes in naval vessels, proposed, 1299. 
 Repairs to naval vessels, 1314. 
 Retirement of civil employees; information concerning 
 
 records of, 1.542, 1543. 
 Sales of old material, and other public property, 1190, 
 1360. 
 public property; proceeds of, and other miscel- 
 laneous receipts, 1296. 
 vessels; statement submitted to Congress, 777. 
 war supplies, lands, buildings, etc., 1516. 
 Secretary of the Navy required to make upon certain 
 
 subjects, 381. 
 Supreme Court; distribution of, 1365. 
 Travel by employees to points outside the District of 
 
 Columbia, 1305. 
 Useless papers accumulated in files; disposal of, 1202, 
 
 1203. 
 Vessels imfit for repairs or not to be completed, 1190. 
 REPRESENTATIVES : 
 
 See Death; Members of Congress. 
 Legal; effects of deceased persons on vessels to be se- 
 cured for, 995. 
 REPRIMAND: 
 
 Comanding officer may inflict as punishment, 1002. 
 Commanding oflBcer not to enter in ship's log, 1002. 
 Plea of former piuiishment, 119. 
 
 Secretary of the Navy may reprimand subordinates, 
 119, 351, 352, 10O4. 
 REPROACHFUL WORDS: 
 
 Punishment for using in Navy, 984. 
 REQUISITIONS: 
 
 SeePrinting and binding. 
 
 Medical stores for fleets and squadrons, 466. 
 
 Money, advances of, 1225, 1226. 
 
 drawn on Secretary of the Treasury, 1104. 
 Naval supplies; made by bureaus upon Paymaster 
 General, 1203. 
 RESEARCH: 
 
 Departmental facilities open to students and others, 
 1275. 
 RESERVATIONS: 
 
 Naval; Indianhead; jurisdiction of United States, 294. 
 Naval; jurisdiction over, 292-294. 
 
 RESERVATIONS— Continued. 
 
 Public land laws not applicable to military, etc., 1087. 
 United States; jurisdiction over, 289-292. 
 Maryland; jurisdiction, 293, 294. 
 status of residents, 290. 
 RESERVE: 
 
 List of persons eligible for conmiissions in, 1392. 
 RESERVE CORPS: 
 
 Army officers; leave of absence to civil employees, 
 members of; reinstatement, 1476. 
 RESERVE FORCE: 
 
 See Naval Reserve Force. 
 RESERVE MATERIAL: 
 
 Appropriation for. Navy, reimbursed for stock issued, 
 1473, 1482. 
 RESERVE NURSES: 
 
 Nurse Corps, female. Navy; number, active duty, 
 compensation, 1303, 1304. 
 RESERVE SUPPLIES: 
 
 Appropriations not available for accumulation of, 387. 
 RESIDENCE: 
 
 Candidates for appointment as midshipmeii, 7.50, 751. 
 
 Home not synonymous; definitions, 876. 
 
 Naval officers; medical attendance dependent upon, 
 
 904. 
 Retired officers, 643. 
 foreign country, 572. 
 RESIGNATION: 
 
 Acceptance of, in true names, 1379, 1380. 
 
 necessary before quitting duties, naval officers, 989. 
 Additional number officer; vacancy not filled, 1275, 
 
 1276. 
 Cliiefs of bureaus; vacancy temporarily filled, 212, 214, 
 
 364, 466, 1222, 1224, 1261, 1280, 1284, 1418. 
 Date effective, 826. 
 
 Desertion; officer quitting post before notice of accept- 
 ance, 9S9. 
 Head of department, temporary appointment to fill 
 
 vacancy, 212-217. 
 Implied; acceptance of another office, 529. 
 
 acquiescence in dismissal; acceptance of other 
 
 office, etc., 989. 
 naval officer accepting diplomatic or consular 
 appointment, 579. 
 Mileage allowed for travel home, 844. 
 Naval officers; subsequent appointment to Marine 
 
 Corps authorized, 1461. 
 Officers declining to submit, 340. 
 Officers in departments, limitation on temporary ap- 
 pointment to fill vacancy, 216. 
 Retired enlisted men, 1514. 
 Revocation of acceptance, invalid, 583, 747. 
 Right of officer to resign, 99. 
 
 To escape dismissal; naval officer ineligible for reap- 
 pointment, 582. 
 Undated; filled in and accepted for cause, 583. 
 RES JUDICATA: 
 
 Advancement of officer for heroism; prior adminis- 
 tration, 734. 
 Applies only to specific case decided, 349. 
 Attorney General will not review opinion of prede- 
 cessors, 320. 
 Decisions of heads of departments are binding on suc- 
 cessors, 348-349. 
 Examinations for promotion. Navy; facts once deter- 
 mined not reopened, 1183. 
 Finality of court-martial sentence after confirmation, 
 
 1038, 1039. 
 Qualifications of candidate after appointment, 96, 750. 
 Reconsideration of action by reviewing authority, 
 general courts-martial, 1051, 10.52. 
 
 1679 
 
INDEX. 
 
 RKS JUDICATA— rontimicd. 
 
 Reopening of accounts by subseiiuent administration, 
 
 255, 256. 
 Retirement of officer; cause of, 909, 910. 
 RESOLUTIONS: 
 
 Form of, 1S7. 
 RESPONSIBIUTY: 
 Disbursing clerks, 212. 
 
 Disbursing officers, for losses, etc.; how relieved from, 
 488, 1.362, 1363, 1527, 1528. 
 for expenditures by order of superior officer, 266. 
 wrecked or captured vessels, relief of, 266. 
 Heads of departments for official acts, 78, 350, .351. 
 Military officers committing illegal acts, 54, 57, 1003. 
 RESTORATION; 
 
 Dismissed officers, 94, 582, 1012, 1 178. 
 RETAINER PAT: 
 
 See Naval Reserve Force; Pay of Naval Establishment. 
 RETIRED: 
 
 Definition of, 672. 
 RETIRED ENLISTED RIEN: 
 Active duty, 1405, 1406, 1451. 
 
 death gratuity law applicable to, 1.546, 1.547. 
 pay and benefits, 872, 873, 890, 1269, 1299, 1514. 
 Civil employment; restrictions on double salaries not 
 
 applicable to, 1411. . 
 Computation of service; pay and allowances, 1299. 
 Detail to educational institutions, 441. 
 Honorable-discharge gratuity and continuous-service 
 
 pay, 890. 
 Marine Corps; laws relating to, 967. 
 Navy; pay of, 872, 873. 
 Promotion, 1514. 
 Rank, 1269. 
 
 Resigning to reenlist, 1514. 
 Status of, 5:38,969, 1180. 
 RETIRED OFFICERS: 
 
 See Civil employment; Details; Pay of Naval Establish- 
 ment; Retirement; Retiring boards; Wholly retired. 
 Active duty; advice and consent of Senate required for 
 command of vessels, 659. 
 as member of court-martial, 1018. 
 attending court-martial as witness or accused, 658. 
 chiefs of bureaus and Judge Advocate General, 376, 
 
 377. 
 command in time of war, 659. 
 death gratuity law applicable to, 1546, 1547. 
 detachment without formal order, 659. 
 leave of absence does not detach from, 659. 
 Marine Corps, under Navy laws, 659. 
 not an officer of active list, 657. 
 orders must be specific, 658. 
 pay and aUowances, 913-915, 1380, 1381, 1437, 1512, 
 
 1513. 
 promotion and pay, 1512, 1512. 
 policy of Congress, 655, 657. 
 practical restoration to active list, 658. 
 preparation of affidavit is, 658. 
 prohibited, except in time of war, 656. 
 special enactment, fixing officer's pay, 1437. 
 warrant and commissioned warrant officers; pay; 
 creditable record, 1503, l.')04. 
 Additional compensation allowed by college to which 
 
 detailed, 439. 
 Advancement in rank; date effective, 6.38-640. 
 jiu^isdiction of accounting officers, 238. 
 new commissions, 1368. 
 not promotion to higher grade, 652. 
 Allowances; chiefs of bureaus subsequently retired, 
 
 1.303. 
 Appointment as flfeet engineer, 500. 
 
 RETIRED OFFICERS-Continued. 
 
 Appointment as prize commissioners, 1139. 
 
 to office limited to active list; not eligible for, 643, 
 658. 
 Attorney against United States; not to act as, 224, 969, 
 
 1.333. 
 Chief of Naval Operations; rank and pay, 1418. 
 Chiefs of bureaus continuing to serve after retirement, 
 376. 
 subsequently retired, 1303. 
 Civil employment; prosecuting claims or defending 
 accused before courts-martial, etc., 224, 969, 1333. 
 in departments held by, 337. 
 in territories; restrictions on holding, 1075. 
 may accept position as mayor of a city, 1075. 
 restricted: private companies, 1250. 
 restrictions on double salaries not applicable to, 
 
 1411. 
 restrictions on holding, 1066-1071. 
 Civil War ser%ice; rank and pay, 968, 1266, 1282, 1293, 
 
 1312. 
 Commissions furnished to, when advanced in rank, 
 
 1368. 
 Congressman; whether eligible to hold both places, 
 
 34, 643. 
 Counsel before courts-martial, departments, etc., 224, 
 ,969, 1333. 
 
 Courts-martial; duty as members of, 1018. 
 jurisdiction over. 62, 631, 643, 644. 
 veto of bill changing law, 643, 644. 
 Decisions relating to, 632-646. 
 De facto officers, 641, 912. 
 Dental Corps: rank and pay, 1422. 
 Detailed to educational institutions, 438-441, 1247, 1248. 
 Diplomatic or consular appointment; restrictions on, 
 
 579, 580. 
 Eligibility for seat in Congress, 34, 643. 
 Furloughed officers, distinguished from, 583. 
 General legislation, whether applicable to, 438, 580, 
 
 633, 634, 658, 832, 908. 
 Grade on retired list, Navy, 631. 
 Held to be an " officer of the United States," 224. 
 lUegally retired; status of, 641. 
 Incompatible offices, 1069. 
 Marine Corps, active duty, 966-968. 
 Civil War service, 968, 1282, 1293. 
 detail to educational institutions, 441. 
 status of, 969. 
 Medical attendance, 440. 
 Navy; general provisions relating to, 585-661. 
 
 status of, 631. 
 Oath of office: civilian appointed on retired list, 633. 
 Pay; held to be salary, 911. 
 held not a pension, 635. 
 Marine Corps, 965. 
 
 Nav-y, general provisions relating to, 906-916. 
 Navy; 30 years' service; based on highest pay of 
 
 grade, 1303. 
 Navy to be same as when retired, 1189. 
 not increased or reduced by personnel act, 1268. 
 Places of, filled by seniority promotion in the Navy, 646. 
 Precedence, 704. 
 
 Promotion on retired list authorized in time of war or 
 emergency, 1512, 1513. 
 on retired list: pay not to be increased by, 912, 913. 
 prohibited, 1189. 
 under former laws, 655, 656. 
 pending when retired, 592, 651, 832. 
 staff officers retired for length of service, 685. 
 Rank, chiefs of bureaus, .372-376, 1303. 
 
 Civil War service, 1266, 1282, 1293, 1312. 
 
 1680 
 
INDEX. 
 
 RETIRED OFFICERS-Continiicd. 
 Raak; Congress may reduce, 910, 911. 
 
 considered as having been retired with higher 
 rank, 912. 
 
 failing physically for promotion, 640-641 , 1366, 1433 
 
 Judge Advocate General, 372-376, 673, 968. 
 
 Marine Corps, 964. 
 
 retired volimtarily to create vacancies in the Navy, 
 1265, 13S0. 
 
 same as when retired, 1 189. 
 
 selected officer not physically qualified for pro- 
 motion, 1433. 
 
 staff officers; age or length of service, 685. 
 
 imder recess appointment, 640. 
 Rations not allowed, 916. 
 Relative rank with Army officers, 662. 
 Removal from retired list; power of Congress, 635. 
 Residence, 643. 
 
 abroad; citizenship, 572. 
 Restoration to active list, 660, 661. 
 Signatures of, 633. 
 Status of; part of the Navy, 632, 633. 
 
 retired on furlough pay, 619. 
 
 whether general legislation applicable to, 438, 580, 
 633, 634, 658, 832, 908. 
 
 withdrawn from command and from line of pro- 
 motion, 654, 655. 
 Status of; wholly retired, 619, 631. 
 Transfer from furlough to retired pay list, 916. 
 Uniform to be worn by, 631. 
 Veto of bill restoring to active list, 35, 36. 
 
 to render not amenable to court-martial, 643, 644. 
 Witnesses in civil court, 414. 
 Wholly retired; status of, 619, 631, 911. 
 RETIREMENT: 
 
 See Pay of Naval Establishment; Retired officers; Eetiring 
 
 board; Wholly retired. 
 Acting assistant siu'geons, 528. 
 Additional number engineer officers, 1366. 
 
 officer; vacancy not filled, 1275, 1276. 
 Age; chiefs of bureaus, 672. 
 
 dental officers, seventy years, 1422. 
 
 Marine Corps, 964, 969. 
 
 naval officers ineligible for selction because of, 
 1434, 1551. 
 
 not applicable to certain officers of the Navy, 593. 
 to volunteer officers, 592. 
 
 sixty-two years, Na\'y, 589. 
 
 sixty-four years. Navy, 589, 1435. 
 
 staff officers, 685. 
 Appointment of successor completes, 596. 
 Army decisions applicable to Na\'y cases, 632. 
 Cause of; can not be altered, 620, 909, 910. 
 
 jurisdiction of accounting officers, 605. 
 Chief of Naval Operations; rank and pay, 1418. 
 Chiefs of bureaus ; age or length of service; rank, 672, 673. 
 
 decisions relating to, 372-377. 
 
 rank, 672, 673. 
 
 subsequently retired, 1303. 
 
 vacancy created by, 672. 
 
 vacancy not created by, 376. 
 
 vacancy, temporary, created by, 215. 
 Civil employees; age, 1536. 
 
 annuities paid monthly, 1542. 
 
 applications; certificates of heads of departments, 
 1540. 
 
 classification and rates for annuities, 1537. 
 
 Commissioner of Pensions, jurisdiction; appeals, 
 1538. 
 
 computation of service, 1538. 
 
 RETIREMENT— Continued . 
 
 Civil employees; deductions from pay, 1540, 1541. 
 
 deductions from pay compulsory, 1541. 
 
 dedaetioiis from pay, donations, etc., creflited to 
 retirement fund, 1541. 
 
 deductions from pay refunded on separation from 
 service, etc., 1542. 
 
 disability retirement in lieu of other compensation, 
 1538, 1539. 
 
 general provisions, 1536-1543. 
 
 moneys not subject to attachment, etc., 1543. 
 
 persons entitled to, 1536. 
 
 reinstated employees, etc., 1541. 
 
 reports to be made by departments concerning 
 service, etc., 1542, 1.543. 
 
 retention in service beyond retiring age, 1539, 1540. 
 CiviUans not entitled to benefits of Navy laws, 586-587, 
 
 632. 
 Civil War officers; rank and pay, 968, 1266, 1282, 1293, 
 
 1312. 
 Colonels in Marine Corps as brigadier generals, 1462. 
 Compulsory, to create vacancies, 1266. 
 
 repeal of law, 1403. 
 Congress may transfer officer to retired list, 92. 
 Courts without jurisdiction to order, 620, 642. 
 Date of, 591, 592, 596, 638-640, 912. 
 
 of vacancy caused by, 649, 1431. 
 Definition of retired as applied to chief of bureau, 672. 
 Dental officers, 1422. 
 Disability; held to be a benefit, 602. 
 
 Marine Corps, 964, 968, 969. 
 
 Navy, 598-617. 
 
 certain officers not retired for other cause, 593. 
 not incident of the service, 617. 
 not incident of the service; wholly retired, 617. 
 Engineer officers who are additional numbers in grade, 
 
 1366. 
 Enlisted men; computation of service, 1269, 1270, 1291, 
 1299, 1529, 1550. 
 
 Naval Academy band, 1355. 
 
 thirty years' service, 538, 967, 1269, 1270, 1299. 
 Errors in, 587, 601, 602, 621, 641, 642, 911, 912, 968, %9. 
 Finality of proceedings after President's action, 616. 
 Fifty-five years' serx'ice, Na^-y, 593. 
 Former chief of bureau, 376. 
 Forty-five years service; Marine Corps, 964. 
 
 Navy, staff officers, 685. 
 Forty years' service; Marine Corps, 964. 
 
 Navy, 585. 
 
 Navy; inapplicable to certain officers, 593. 
 staff officers, 685. 
 Furlough pay; marine officers; illegal, 621, 622. 
 
 Navy, disability not incident of the service, 617. 
 Illegal; status of officer; stiU on active list, 587. 
 Incapacity; definition of, 598. 
 Incident of the service; disability, 617. 
 Irregulatities, 601, 602. 
 
 acquiescence in, 004. 
 Judge Advocate General, rank, 372-376, 673, 968. 
 Length of service, cliiefs of bureaus, 672, 673. 
 
 computation of, 5S7, 927, 964, 969, 1191, 1390, 1550. 
 
 Navy, inapplicable to certain officers, 593. 
 
 staff officers, 6S5. 
 Line of duty; decisions relating to, 605-616. 
 Major General Commandant, Marine Corps; rank and 
 pay, 1392. 
 
 vacancy temporarily filled, 215. 
 Marine Corps; laws and decisions relating to, 963-971 . 
 Mates, 519-521. 
 
 Mental temperament; peculiarities of, 593, 598, 599. 
 Misconduct; officer of Navy not to be retired for, 622. 
 
 1681 
 
INDEX. 
 
 RETIREMENT— Continued. 
 
 Moral iinfilness for promotion, 597. 
 
 not to bo retired for, 11S9. 
 Naval Academy band members, 13o5. 
 Naval Reserve Force; enrolled members, 20 years' 
 service, 144G. 
 
 limited to physical disability, 1509, 1510. 
 
 physical disability, 1549. 
 
 service credited for, 1 r)09. 
 
 transferred members; tliirty years' service, 1449. 
 Navy; certain officers to be retired only for physical 
 disability, 593. 
 
 general provisions relating to, 5S.>-661. 
 
 hearing required before retiring board, 622. 
 
 officers not recommended for promotion, 594, 640, 
 641, 911, 1366, 1433. 
 
 voluntary authorized, to create vacancies, 1265, 
 1380. 
 Pay clerks; reserve service credited for, 1529, 1530. 
 Permanent incapacity, definition of, 59S. 
 Physical examination for promotion not sufficient for, 
 601. 
 
 incapacity defined, 598. 
 President's action; delay in, 617. 
 
 illegal, 622. 
 
 revocation of, 619. 
 President's power; constitutionality of statutes, 617. 
 Probationary officer; dental surgeon, 621. 
 Promotion pending; status of officer, 592, 651, 832. 
 Rank, chiefs of bureaus, 372-376. 
 
 chiefs of bureaus; age or length of service, 672, 673. 
 
 chiefs of bureaus subsequently retired, 1303. 
 
 CivU War officers, 968, 1266, 12S2, 1293, 1312. 
 
 commodore changed to rear admiral, 672. 
 
 considered as having been retired with higher rank, 
 912. 
 
 dental officers, 1422. 
 
 failingtoqualifyforpromotion,640-641, 1366, 1433. 
 
 increased for creditable service; policy of Congress, 
 687. 
 
 Judge Advocate General, 372-376, 673, 968. 
 
 Marine Corps, 964. 
 
 medical officer, next higher grade, 675. 
 
 of higher grade; not cliange in grade, 686. 
 
 recess appointment, 640. 
 
 retired to create vacancies, 1380. 
 
 same as when retired, 1189. 
 
 selected officer not physically qualified for promo- 
 tion, 1433. 
 
 staff officers; age or length of service, 685. 
 causes incident to the service, 687. 
 Revocation of; officer illegally retired, 587. 
 Secretary of the Navy acts for President, 586, 642, 643. 
 Service; computation of, 587-589, 927, 964, 969, 1191, 
 
 1390, 1550. 
 Selected officer physically disqualified for promotion; 
 
 actual rank, 1433. 
 Special act of Congress, 911. 
 Staff officers, 685, 687. 
 
 rank of rear admiral, 672, 675. 
 Temperamental unfitness for duty, 593, 598, 599. 
 Temporary officers, physical disabihty, 1549. 
 Thirty years' service; Marine Corps, 964. 
 
 Navy, 1303. 
 
 Navy; may be denied, 586. 
 Vacancies filled by seniority promotion, 646. 
 Waiting orders distinguished from, 643. 
 Waiver of, 521, 523. 
 Warrant officers, 511, 512, 602. 
 
 machinists, 1269. 
 
 Marine Corps, 1462. 
 
 RETIREMENT— Continued. 
 
 Warrant officers, Navy and Marine Corps; reserve 
 
 service credited for purpose of, 1529, 1530. 
 Wholly retired distinguished from, 911. 
 RETIRING HOARDS: 
 
 Burden of proof; cause of disability, 915, 916. 
 Cliiefs of bureaus ordered to appear before, 376. 
 Courts can not review action of, 620. 
 Findings; incident of the service, 617. 
 Hearing before; officers of Navj' entitled to, 622. 
 Illegally constituted, 971. 
 
 Judge Advocate General's duties relating to, 1186, 1187. 
 Marine Corps; composition of, 970. 
 provisions relating to, 964, 970. 
 Navy and Marine Corps; convening of, on foreign sta- 
 tions, 1472. 
 Navy, 598-617. 
 
 action by the President, 616. 
 
 composition of, 598. 
 
 findings of, 603, 617. 
 
 oaths of members, 603. 
 
 powers of court-martial and court of inquiry; may 
 
 exercise, G03. 
 reconsideration on own initiative, 604. 
 President's action; delays, 617. 
 illegal, effect, %8, 969. 
 revocation of, 619. 
 Reconsideration on own initiative, 621. 
 Report of, cause of disability, 915, 916. 
 Revision by the President, 616. 
 Surplusage in finding, 604. 
 RETURNS: 
 
 See Accounts; Crimes; Disbursing officers. 
 False, 1170, 1368. 
 
 Form of keeping and rendering, 259. 
 Habeas corpus; time and form of, 405. 
 RETURNS OFFICE: 
 
 Copies of contracts to be filed in, 1118, 1119. 
 Copies of returns; evidence in court, 428. 
 Duties of, 398. 
 
 False returns filed in; prosecution for, 428. 
 Navy contracts; copies to be filed in, 397. 
 Penalty for omitting to file returns, 1119. 
 REVENUE CUTTERS: 
 
 Cooperation with Navy, 1091. 
 REVENUE CUTTER SERVICE: 
 
 Consolidated with Life Saving Service and desig- 
 nated as Coast Guard, 1400. 
 Service in, credited to naval personnel for pay and 
 retirement, 1550. 
 REVIEWING AUTHORITY: 
 
 Court-martial cases; decisions relating to, 1037-1055. 
 REVISE: 
 
 Definition of, 359, 1043. 
 REVISED STATUTES: 
 Explanation of, 2, 1173. 
 Interpretation of, 18, 22. 
 
 Interpretation of; particular words defined, 185, 186. 
 Repeal provisions, 1173. 
 REVISION: 
 
 Court-martial proceedings, not second trial, 120. 
 Examining board's proceedings, 724-728. 
 Proceedings of court-martial, reconvened, 1043, 1044. 
 REVOCABLE LICENSE: 
 
 Use of public land by private parties, 291. 
 REVOCATION: 
 
 Acceptance of resignation, invalid, 583, 747. 
 Appointment as mate, 522. 
 
 acting assistant surgeon, 529. 
 acting chaplain, 1396. 
 acting ensign, 1435. 
 
 1682 
 
INDEX. 
 
 REVOCATION— Continued . 
 
 Appointment as midshipman, 747. 
 
 second lieutenant, Marine Corps, 1461, 1462. 
 temporary officer in a higher grade, 652. 
 warrant officer, 524. 
 Discharge; by illegal sentence of court martial, 568, 975, 
 1008, 1009. 
 of enlisted man obtained by fraud, 568. 
 issued by mistake of law, 1011. 
 Dismissal of midshipman; unauthorized, 761. 
 President's action on examining board for promotion, 
 596, 630, 728, 734. 
 on retiring board, 619, 620. 
 Recess commission, 100. 
 Retirement, 587, 596. 
 
 Temporary commission; officer issued new cormnission 
 in same grade, 669. 
 REWARDS: 
 
 Civil employees, for suggested improvements, 1514. 
 Deserters arrest of, US. 
 
 checkage of amount against pay unauthorized, 
 1064. 
 RIBBON'S: 
 
 Presentation of, in coimection with medals, 1521. 
 RIFLE PR-\CTICE: 
 
 Use of ranges by naval service, 1412, 1413. 
 RIGGERS: 
 
 Service on boards concerning repairs to vessels, 777. 
 RIVERS: 
 
 See Regattas. 
 
 Rules for preventing collisions, 1125, 1130, 1135, 1251- 
 1261. 
 motor boats, 1356-1358. 
 ROAD DUTY: 
 
 State interference with Federal instrumentalities, 50. 
 ROBBERY: 
 
 Mail custodian; offense against, 13.39. 
 Personal property of United States, 1328. 
 Punishment for, 1350. 
 ROPE WALKS: 
 
 Superintendent of, at navy yards, 779, 780. 
 ROSETTE: 
 
 Presentation of, to be worn in lieu of medals, 1521. 
 ROYALTIES: 
 
 Lands in naval petroleum reserves and royalty oil in 
 naval reserves, 1545. 
 RUBBER STAIVEP: 
 
 Signature of pubUc officer, 351. 
 RULES: 
 
 See Regulations. 
 RULES OF THE ROAD: 
 
 Collisions; duty of master; penalty, 1215, 1216. 
 
 Great Lakes, etc., 1240-1246. 
 
 Harbors, rivers and inland waters, except Great 
 
 Lakes and Red River of the North, etc., 12.51-1261. 
 High seas; international, 1204-1215. 
 Motor boats; regulation of, on na\'igable waters, 1356- 
 
 1358. 
 Navigation of certain inland waters, 1246, 1247, 1251- 
 
 1261. 
 Pearl Harbor; navigation, anchorage, etc., 1382. 
 Red River of the North and rivers emptying into the 
 Gulf of Mexico, and their tributaries, 1125-11.30, 
 1246, 1247. 
 Red River of the North, Mississippi River, etc., 1135. 
 Regattas or marine parades; rules governing, 1300, 1301. 
 Regulations governing vessels propelled by steam, etc., 
 
 in passing each other, 1135, 1246, 1260. 
 Shipping Board to recommend changes in navigation 
 laws and regulations, 1467. 
 
 RUNNING MATES: 
 
 Advancement of stafi officers with, 1426. 
 SAILING DIRECTIONS: 
 
 Hydrographic Office to provide, 387, 1238. 
 SAIL>I.4KERS: 
 
 See Warrant officers. 
 
 Service on boards concerning repairs to vessels, 777. 
 SAINT ELIZABETHS HOSPITAL: 
 
 Deceased inmates; disposition of moneys, 1296. 
 Established in District of Columbia, for the insane, 
 
 1161-1163. 
 Insane patients, naval; pay and expenses of, 788. 
 prisoners of war and interned persons; admission 
 to, 1417, 1418. 
 Pensions of inmates, how paid, 1155. 
 Secretary of the Interior charged with supervision 
 of, 395 . 
 
 Service pensions due inmates, paid to superintendent 
 
 789. ' 
 
 SALARY: 
 
 See Double salaries; Pay of civil eslablishment; Pay of 
 
 Naval Establishment. 
 Commutation of quarters held to be, 702. 
 Pay of retired officer is, 911. 
 SALES: 
 
 See Printing and binding; Public property. 
 Wages of enlisted men; commanding officer to dis- 
 courage, 573. 
 SALVAGE: 
 
 Distribution of, awarded to naval vessels, 114.5, 1147. 
 Government-owned vessels; amount collected; dispo- 
 sition of, 1533. 
 Naval appropriations not credited with value of, 1397. 
 Naval vessels; decisions relating to, 775. 
 
 to render service; compensation collected for, 
 1508. 
 Permanent appropriation for pajTnent of, under Navy 
 
 Department, 1106. 
 Remimeration; public vessels excepted, 1372. 
 SAMOA: 
 
 Acknowledgment of deeds in, 1291, 1292. 
 Census to be taken by governor, 1525. 
 Civil employees, 782. 
 
 pay while in transit, 1278. 
 Governor: certificate as to acknowledgments in, 1291 
 1292. 
 commissioned by President, 102. 
 Military government of, 109. 
 Secretary of the Interior, j urisdiction over, 395. 
 Status of, and of naval governor, 1292. 
 SAMPLES: 
 
 Tobacco, inspected by board of naval officers before 
 awarding contract, 1250. 
 SAN DOMINGO: 
 
 See Dominican Republic. 
 SANITARIUM: 
 
 Medical expenses of officer in, 904. 
 SATURD.^Y: 
 
 Afternoons; holiday in District of Columbia, 782. 
 SAVINGS: 
 
 Deposit of, by enlisted men. Marine Corps, 951, 1295. 
 Deposit refunded; enlisted men rated as mates or ap- 
 pointed as warrant officers, 524. 
 Enlisted men. Navy; deposit of, 877, 1202. 
 SCANDALOUS CONDUCT: 
 
 Offenses not specifically provided for, charged as, 1028. 
 Punishable by naval court-martial, 984, 998. 
 SCHOOLS: 
 
 See Educalional institutions; Naval Academy. 
 
 1683 
 
INDEX. 
 
 SCHOOLS— Continued. 
 
 Aviation; instruction of Coast Guard at Navy schools, 
 
 1456. 
 Detail or enlisted men to nautical school in Philip- 
 pines, 1297. 
 Instruction; for members and applicants, Naval Re- 
 serve Force, 1448. 
 Loan of naval equipment to military schools, 1277, 
 1359. 
 of vessels and equipment to nautical schools, 1297, 
 1367, 1368. 
 Nautical; naval officers detailed to, 1368. 
 Retired officers detailed to, 1247, 1248. 
 Scientific; detail of naval officers to, 1184, 1185. 
 Summer schools for boys; Secretary of Na^•y may es- 
 tablish; enrollment in reserve, 1546. 
 SCIENTIFIC: 
 
 Instruments; loan of, by Secretary of the Na\'y, 1201. 
 Investigators; afforded facilities for studies and re- 
 search in departments, etc., 1275. 
 SCREW THREADS: 
 
 Standardized; use by Navy; specifications in proposals, 
 1520. 
 SEAL: 
 
 Bonds, 481, 482. 
 
 Commissions of naval officers to have Navy Depart- 
 ment seal affixed, 1248. 
 Definition of; impression without wax, 186. 
 Executive departments; copies of records certified 
 under, 426, 427. 
 counterfeiting, etc., 1489. 
 Fur seals; use of naval forces to protect, 1387. 
 SEAMEN: 
 
 See Enlisted men. 
 
 Rating of ordinary seaman changed to, 1423. 
 SEAMEN GUNNERS: 
 
 Additional pay, enlisted men holding certificates as, 
 866. 
 SEARCH AND SEIZURE: 
 
 Private papers, use of, in evidence, 123. 
 Protection against unreasonable, 117. 
 SEA SERVICE: 
 
 See Pay of Naval Establishment, 
 Advances to naval officers ordered to and from, 1472. 
 Definition of; decisions relating to, 878-883. 
 Marine Corps, 954. 
 
 pay, 948. 
 Pay of naval officers, 1302. 
 
 of officers and enlisted men. Marine Corps, 1408. 
 Requirement for promotion, line of the Navy, 1434. 
 Selection; requirement not applicable to staff corps, 
 
 1513. 
 Staff officers who have been chiels of bureaus, 578. 
 Volunteer officers credited with, on transfer to regular 
 Na^T, 530. 
 SEAT OF GOVERNMENT: 
 See District of Columbia. 
 Enemies' flags collected at, 381. 
 Executive departments located at, 191. 
 Navy Department established at, 331. 
 SECOND LIEUTENANTS: 
 
 Age and examination of candidates, 1270. 
 Appointments, 922, 925. 
 
 from dismissed midshipmen restricted, 1281. 
 from graduates of Naval Academy, 1188, 1189, 1270, 
 
 1392. 
 from graduates of Naval Academy; commence- 
 ment of pay, 1221, 1222. 
 from midshipmen or Army cadets failing to gradu- 
 ate; restricted, 1462. 
 
 SECOND LIEUTENANTS-Continued. 
 
 Appointments, qualifications; ages, examinations; 
 
 former officers; prol>ation, 1461, 1462. 
 F.nsigns rank with, 602. 
 Number of, Marine Corps, 1458. 
 
 Precedence determined by competitive examination, 
 1462. 
 SECRETARIES: 
 
 Admiral and vice admiral allowed, 455. 
 
 at sea; no civil appointment allowed, 1182. 
 Admiral of the Na\'y, appointment and status of Sec- 
 retary to, 527. 
 Admiral; pay of secretary, 794, 805. 
 Naval officers detailed as, 1182. 
 Ranlc and allowances of, 455. 
 Status of, 52.5. 
 
 To commanders of squadrons; pay, 794, 805. 
 Naval Academy; pay, 794, 805. 
 vice admiral; pay, 794, 805. 
 SECRETARY OF THE INTERIOR: 
 
 Fuel for departments in District of Columbia; advance 
 deliveries by, 1553. 
 purchase and storage by, 1507. 
 Hauling for Government in District of Columbia, 1553. 
 Jurisdiction over Navy contracts, 397. 
 Office created, 395. 
 SECRETARY OF THE NAVY: 
 
 See Assistants; Delegation of powers; Estimates; Heads 
 of departments; Navy Department; Regulations; Re- 
 ports. 
 Absence, death, resignation or sickness; temporary 
 
 performance of duties, 333, 1401. 
 Accounting for expenditures from appropriation for 
 
 obtaining information, 1417. 
 Accounting officers to act imder direction of, 266, 268. 
 jurisdiction with relation to, 236-240, 272, 273,828, 
 829, 903, 1315, 1527, 1528. 
 Accounts, balances arising certified to, by accounting 
 
 officers, 1224. 
 Acting Secretary during temporary absence, 333, 1401. 
 Acts for the President, 102, 342, 343, 344, 474, 500, 586, 
 642, 643, 787, 9-56, 957. 
 records of naval examining boards and boards of 
 
 naval surgeons, 1481, 1482. 
 regulations, 787. 
 Advertising for proposals for supplies and transporta- 
 tion, nil. 
 for suppUes; certain articles excepted, 1113, 1114. 
 for tobacco, 1250. 
 Allowances to naval prisoners fixed in discretion of 
 
 1311. 
 Appointments, acting assistant surgeons, 527, 1184. 
 acting chaplains, 1396. 
 acting ensigns, 1435. 
 acting pay clerks, 1406. 
 acting warrant officers, 525. 
 civiUan storekeepers on foreign stations, 533. 
 civil establishment, 337. 
 midshipmen, 745. 
 nurses, female, 1303, 1304. 
 of officers; can not delegate power to make, 533. 
 pharmacists, 1262. 
 Appropriations controlled and expended by direction 
 
 of, 1104. 
 Approval of accounts for traveling expenses, 237, 238, 
 1179, 1189. 
 claims; effect of, 272. 
 Armor plants; cost of product; itemized accounts to be 
 
 kept by, 1419. 
 Assistant Secretary; general provisions relating to, 
 333, 334. 
 
 1684 
 
INDEX. 
 
 SECRETARY OF THE NAVT— Continued. 
 
 Assistant Secretary; to perform duties assigned by, 
 
 1217. 
 Boards appointed by; examinations for assistant pay- 
 master, 470. 
 Boards of inquiry convened by; investigation of mid- 
 shipmen, 1286, 
 of survey to be convened by, 1477. 
 to be ordered by, before publishing charts and 
 hydrographic surveys, 1106, 12-37. 
 Bonds required by, for property loaned to military 
 
 schools, 1277. 
 Chaplains: aimual report to, 503. 
 Chief of Naval Operations performs duties under 
 
 direction of, 1401. 
 Chiefs of bureaus perform duties under authority of, 
 
 361. 
 Civil employees, navy yards and stations; number 
 
 and pay fixed by, 1312, 1313. 
 Civil office held by, 333. 
 Claims adjusted by; reports to Congress, 13.58, 1359, 
 
 1508, 1527, 1545. 
 Clemency power in court-martial cases, 85, 669, 1309. 
 Coast Guard duties performed by order of, 1091, 1456. 
 Collision claims involving naval vessels; adjustment; 
 
 report to Congress, 1358, 1359. 
 Commissioner of Pensions; jurisdiction with relation 
 
 to, 396, 397, 1155. 
 Commissions of officers signed by, 102. 
 Computations as to numbers of officers in grades. 1529. 
 Condemnation proceedings instituted by, for acquiring 
 
 timber, suppUes, etc., 1518. 
 Contracts; advertising for proposals for suppUes and 
 transportation, 1111. 
 bids regarded as excessive may be rejected, 1114. 
 conditions relating to quality of supplies pre- 
 scribed by, 1115. 
 foreign supplies; bids to be opened in presence of, 
 
 1114. 
 made by, where bidder fails to furnish required 
 
 bond, 1112, 1113. 
 purchase of fuel, 1115. 
 to be made by or under direction of, 1111. 
 to cause officers maMng same to sign names at end, 
 
 etc.. Ills, 1119. 
 to furnish instructions and blank forms to 
 officers making, 1119. 
 Council of National Defense: membership in, 1465. 
 Counsel for courts-martial can not be employed by, 
 
 1019, 1020. 
 Courts; jurisdiction over; mandamus proceedings, 778. 
 Courts-martial, action on, 1309. 
 
 for hazing ordered on approval of, 1286, 1287. 
 
 subject to review by, 1287. 
 proceedings re\iewed by, 1042, 1287, 1309. 
 Custodian of property, books and records, 352. 
 Decision final as to character of man's discharge, 566. 
 Deck-court records to be reviewed by, in special cases, 
 
 1309. 
 Delegation of power to approve bonds, 487. 
 Detail of officers to shore duty; public interest must 
 
 require, 1191, 1218, 1219. 
 Development of Navy petroleimi reserves and oil 
 
 lands; leases; use of proceeds, 1545. 
 Disbursements made by order of, 266. 
 Discharge of enlisted men; rules to be prescribed by, 
 
 1381, 1382. 
 Discretion; clothing outfits on first enlistment; law 
 mandatory, 1203. 
 duties involve, 344, 345. 
 not reviewable, 237, 828, 829. 
 
 SECRETARY OF THE NAVY— Continued. 
 
 Dismissal of civiUaa instructor, Naval Academy, re- 
 quires approval by, 1287. 
 of midshipmen; duties relating to, 1286. 
 Distribution of departmental business by, 357. 
 Duties discretionary, 344, 345. 
 
 flags of enemies collected by, 381. 
 general pro\isions relating to, 342-352. 
 of commandant. Marine Corps, may be performed 
 by, 929. 
 Emergency purchases of foreign war material, 1396. 
 Estimates furnished to, by chiefs of bureaus, 385. 
 submitted by, demands on balances of appropria- 
 tions, 381. 
 Examinations for appointment in Marine Corps, 1461. 
 for promotion. Medical Corps, prescribed by, 1251. 
 for promotion prescribed by; acting ensigns to 
 
 lieutenant (junior grade), 1436. 
 of machinists for promotion prescribed by, 1314. 
 Form of honorable discharge prescribed by, 569. 
 Furlough of officers, 583. 
 General courts-martial; may be convened by, 1248, 1310. 
 
 may empower officers to convene, 1442. 
 General orders issued by; violating or refusing obedi- 
 ence to, 985. 
 provisions relating to, 332-333. 
 Habeas corpus can not be issued to, 404. 
 Hazing, rules to prevent approved by, 1281. 
 Head of the Navy Department, 331. 
 Hydrographic Office; duties performed under au- 
 thority of, 387. 
 publications: number of copies to be prescribed 
 by, 1238. 
 Hypothetical questions not decided by, 349, 350. 
 Insane personnel committed to hospitals by, 788, 789. 
 Judge Advocate General's duties performed under 
 
 direction of, 1186, 11S7. 
 Leases granted by, to lands other than oil, mineral or 
 
 phosphate, 1419. 
 Loan of naval equipment, etc., to Red Cross, 1394, 1395. 
 Losses by disbursing officers; determination as to 
 
 responsibility, 1527, 1528. 
 Marine Corps; jurisdiction over, 956, 957. 
 May aboUsh offices at nav^ yards; 533. 
 May change regulations fixing relative rank or prece- 
 dence of officers, 466. 
 May not act for chief of bureau named in contract, 361. 
 May perform duties of subordinates, 215, 351, 361. 
 Medals of honor to enhsted men on approval of, 512. 
 Member of Arlington Memorial Amphitheater Com- 
 mission, 1559. 
 of commission for care of State, War and Navy 
 
 Building, 332. 
 of Interdepartmental Social Hygiene Board, 1517, 
 1518. 
 Midshipmen miay be given special course of study 
 
 prescribed by, 1189. 
 Naval Home: compensation of beneficiaries employed 
 at, 1294. 
 disposition of effects, deceased iimiates, 1395. 
 of pensions due beneficiaries, 1395. 
 Naval supply account prices to be approved by, 1557. 
 Navy mail clerks selected by, 1306. 
 Oaths; may empower officers to administer, 1240. 
 Ocean mail vessels constructed subject to approval of, 
 1216. 
 detail of naval officers for duty on, 1217. 
 "Officer" held to include, 1040. 
 Orders issued through chiefs of bureaus, 361. 
 
 of chief of Naval Operations to have effect as 
 orders of, 1418. 
 
 1685 
 
INDEX. 
 
 SECRETARY OF THE NAVY— Continued. 
 
 (Irdors to officers for shore duty; <lo'erini nation that 
 
 public interest roiiiires, 1191, IL'IS, 1219. 
 Precedence of officers determined by, 667, 6CS. 
 Pr&sident may direct reference of cases to retiring 
 boards by, 598. 
 orders executed by, 342. 
 Property records to be kept by, 227. 
 Purchase of copyrights, etc., for Hydrographic Office 
 
 publications, 1236, 1237. 
 Quarters; jurisdiction todeterminewhennot available, 
 
 1,514. 
 Ratings and grades for enlisted men may be estab- 
 lished by, 1552. 
 Records transferred from other departments to be pre- 
 served by, 1283, 1295. 
 Regulations; approval by President, 784. 
 duties of Supply Corps, 468. 
 Naval Home, 1160. 
 not binding on, 352. 
 or general orders of; violating or refusing obedience 
 
 to, 985. 
 promotion of warrant officers, 1267. 
 rations, 1194. 
 sale of old material, 1190. 
 
 of stores to naval personnel and civil em- 
 ployees, 1313, 1314. 
 summary courts martial, 1009, 1311. 
 Reports required to be made by, 381. 
 
 required to be made to, by commanding officers of 
 
 vessels, 995. 
 to Congress, of civil employees paid from naval 
 appropriations, 1194. 
 Reprimand of officers by, 119, 351, 352, 1004. 
 
 acts for the President, 642, 643. 
 Revocation of appointments, acting chaplains, 1396. 
 Sale of armament for sentimental reasons; judgment 
 concerning, 1284. 
 of Marine Corps stores to naval and civilian per- 
 sonnel, 1391. 
 of vessels, 777-779. 
 
 and material; annual report required, 381. 
 captured as prize, 1141. 
 procedure, 1192. 
 Salvage may be collected by, 1508. 
 Secretary of the Interior; jurisdiction with relation to; 
 
 Navy contracts, 397. 
 Selection boards appointed by, 1430, 1431, 1529. 
 Ships' stores profits expended in discretion of, 1359. 
 Specifications to be approved by, for steel in construc- 
 tion of vessels, 1195. 
 Subordinate's duty performed by, 215, 351, 361. 
 Summary courts-martial; may empower officers to 
 convene, 1441. 
 records destroyed in discretion of, 1311. 
 regulations prescribed by, 1009, 1311. 
 Superintendence of naval hospitals, 1159. 
 Supervision of chiefs of bureaus, 300. 
 Supreme Court reports and digests furnished to, 1365. 
 Travel; civil employees to and from insular possessions; 
 pay allowed by, 1278. 
 claims; approval of, 237, 238, 1179, 1189. 
 
 distances determined by, 1315. 
 repeated, naval officers; actual expenses allowed 
 in discretion of, 842, 843, 1272-1274, 1278. 
 Trustee of Navy pension fund, 1153, 1154. 
 Vessels named by, 774. 
 SECRETARY OF THE TREASURY; 
 
 Annual report by, of expenditures in Navy Depart- 
 ment, 261, 1183. 
 Reports to be submitted to, of expenditures in Navy 
 Department, 261, 265, 266. 
 
 SECRETARY OF WAR: 
 
 Accounting officers' jurisdiction with relation to, 240- 
 
 242. 
 Is civil officer, 34. 
 Naval officers detailed for duty under, 507, 578, 1198, 
 
 1199. 
 Navigation regulations prescribed by; transportation 
 
 of explosives, etc., 1519. 
 Orders of, are the orders of the President, 83. 
 SECURITY: 
 
 Debts to Government; authority to accept, 231. 
 SEDITIOUS: 
 
 Conspiracy, 1317. 
 
 Words; punishment for uttering in Navy, 984. 
 SEDUCTION: 
 
 Carnal knowledge of female under sixteen, 1349. 
 SEIZURE: 
 
 Papers of accused; whether admissible in evidence 
 
 against him, 1023, 1024. 
 Protection against unreasonable, 117. 
 SELECTION: 
 
 Additional number officers, 1430, 1432. 
 Age requirements for promotion by, 1434. 
 not applicable to stafi corps, 1513. 
 suspended in certain cases, 1551. 
 temporarily deferred, 1553. 
 Board; convening of; how constituted; proceedings; 
 oath of members; etc., 1430-1433, 1529. 
 for staff officers; how constituted, 1513. 
 recommendation of: number of vacancies to be 
 
 fiUed, 1432, 1529. 
 time for convening, line and staff, 1529. 
 to submit additional names in place of those not 
 acceptable to President, 1433. 
 Eligibility for selection; when terminated, 1433. 
 Engineer officers; sea service not required for promo- 
 tion, 1434. 
 eligibility for; are additional numbers after promo- 
 tion, 1432. 
 Examinations following, 1433. 
 engineer officers, 1435. 
 officer failing physically, retired with actual rank, 
 
 1433. 
 officer failing professionally, thereafter ineligible, 
 1433. 
 Grades and ranks to which applicable, 1430. 
 Line officers, 1430-1434. 
 
 Majority report; two-thirds of board must ccJncur, 1432. 
 Members of board holding recess appointment, 1431. 
 Naval Reser\'e Force, during war or emergency, 1510. 
 Number of officers recommended by board for promo- 
 tion, 1432, 1529. 
 of vacancies to be furnished board, 1431, 1529. 
 Officers selected but not promoted; status, 1431. 
 Precedence of officers, 652, 653, 669, 694, 1433. 
 President's action on report of board, 1433. 
 Professional and physical examinations prior to pro- 
 motion, 1433. 
 Rear admirals during war, 454. 
 
 Recommendation of board; number of vacancies to be 
 flUed, 1432, 1529. 
 six members must concur, 1432. 
 to be in writing; form of, 1433. 
 Records of officers furnished board, 722, 723, 1431. 
 Retirement of officers ineUgible on account of age, 1434. 
 Right of officers to send communications to board, 
 
 1431. 
 Sea service necessary before; line officers, 1434. 
 not required of certain line officers, 1434. 
 of staff officers, 1513. 
 Service in grade necessarj' before; line of Navy, 1432, 
 not required in stafi corps, 1513. 
 
 1686 
 
INDEX. 
 
 SELECTION— Continued . 
 
 Shore duty in time of war or emergency; eligibility for 
 
 promotion, 1434. 
 Staff officers, 1513, 1529. 
 Statutory requirements, except age and examinations 
 
 suspended in certain cases, 1551. 
 Temporary promotions not governed by statutory 
 pro-\-isions, 1432. 
 SELF-CRI3UNATION : 
 
 Pardon does not deprive of privilege unless accepted, 
 
 122. 
 Protection of witnesses, 121, 125. 
 
 Witnesses before naval courts; protection of, 1023, 1310. 
 Witnesses refusing to answer can not be punished, 403. 
 SEjVUN ARIES: 
 
 Detail of naval officers to, 435. 
 SENATE: 
 
 Adjournment after confirmation of officer; commission 
 
 may be delivered, 1072. 
 Appointing power, 96. 
 Appointments without consent of; accounting officers 
 
 notified, 1072. 
 Confirmation of ineligible; effect of, %. 
 Consent required to changes in rank of naval oflBcers, 
 734. 
 to appointment indirectly given, 96, 652, 735. 
 Dismissal of naval officers by President with concur- 
 rence of , 1011. 
 Recess; appointments during, 99. 
 
 appointments; filUng vacancies in departments, 
 216, 217. 
 no salary if vacancy existed while Senate in 
 session, 1066. 
 temporary adjournment, 33, 217. 
 SENATORS: 
 
 Witnesses in court; compensation, 414. 
 SENIOR: 
 
 Construed, 930. 
 SENIORITY: 
 
 Date stated in commission determines, 652. 
 Promotions; constitutionality of legislation requiring, 
 647,648,681. 
 examinations required, 684, 685. 
 in Army, 93. 
 in Marine Corps, 1461. 
 in Navy, 646, 680. 
 SENIOR MEMBER: 
 
 General court-martial, to preside, 1015, 1016. 
 Summary court-martial, oath administered by, to 
 witnesses and recorder, 1006. 
 SENIOR OFFICER PRESENT: 
 
 Execution of summary court-martial sentence on ap- 
 proval of, 1442. 
 Foreign station; convening of examining and retiring 
 boards by, 1472. 
 SENTENCE: 
 
 See Courts-martial; Punislnnents . 
 Adequate punishment required, 1034. 
 Approval; effect of, 1037-1039. 
 
 of sentence, and not of whole proceedings, re- 
 quired, 1037. 
 Bad-conduct discharge not to be executed in foreign 
 
 country, 1006. 
 Cashiered; member of court-martial absent without 
 
 authority, 1031. 
 Certainty required, 1064. 
 
 Chief of bureau dismissed by court-martial, 839. 
 Civil courts; jurisdiction over courts-martial, 402-403, 
 
 1047-1051. 
 Clemency; court-martial members may recommend, 
 1034. 
 
 SENTENCE— Continued. 
 Commutation of, 85. 
 dock court, 1308. 
 defined; mitigation distingtiished; President's 
 
 power, 1054. 
 general courts-martial, 1051-1055. 
 to dismissal, 441, 1010. 
 Confinement; deck courts may adjudge, limited, 1308. 
 Confirmation of, 1036-1051. 
 
 by President; death, or dismissal of officers, 1036. 
 
 dismissal of midshipmen, 1248. 
 disapproval must be distinctly expressed, 1042. 
 form of President's action; personal signature not 
 
 required, 1040. 
 officer ordering the court, defined, 1040. ' 
 power of reviewing officer who is not authorized to 
 
 confirm sentence, 1043. 
 reconsidered by reviewing authority, 1038, 1039. 
 reduction of officer to enlisted rating, 1045. 
 Secretary of the Navy's power, 1042, 1043. 
 Continuing punishment; remission of by reviewing 
 
 authority, 1052, 1053. 
 Court-martial required for pimishments except as 
 
 otherwise specified, 1002. 
 Court of inquiry, 891. 
 Cumulative, courts-martial, 1063. 
 Death; concurrence of two-thirds necessary to ad- 
 judge, 1034. 
 confirmation by President required, 1036. 
 imprisonment may be substituted for, 983. 
 mitigation of, 1054, 1055. 
 offenses punishable by, 979-982. 
 officer demanding trial may be sentenced to, 1012. 
 prohibited unless specifically authorized, 1034. 
 Deck courts, 1308, 1309. 
 
 Disapproval of, by officer not empowered to confirm, 
 1043. 
 effect, 988, 1037, 1038. 
 findings in part; effect on sentence, 1038. 
 must be distinctly expressed, 1042. 
 Discharge; deck courts may not adjudge, 1308. 
 
 enhsted men sentenced to, are additional to au- 
 thorized strength. Navy, 1423, 1463, 1478. 
 illegal; revocation of, 568, 975, 1008, 1009. 
 Discretionary with court-martial, 979, 981, 983, 984, 
 
 985,990,991,994,996. 
 Dismissal; confirmation by President, 1036, 1248. 
 
 court-martial sentence required for, 441, 1010-1014. 
 effect of; officers ineligible for reappointment, 582. 
 mandatory in certain cases, 994, 1029, 1031, 1064, 
 
 1287. 
 midsliipmen; confirmation by President, 1248. 
 mitigation of, 1053. 
 officers dismissed pursuant to, or in commutation 
 
 or mitigation of, 441, 1010. 
 reduction of officer to enlisted rating equivalent to, 
 1045. 
 Disqualification to hold office; continuing punishment; 
 
 remission of, 1053. 
 Excessive; not void, 403. 
 Execution of; confirmation required, 1036. 
 Execution of, deck courts, 1308. 
 Execution of, prior to confirmation, 1037. 
 
 summary courts-martial and deck courts, 1312. 
 Fines, 990. 
 
 expenses of prisoners paid from, 1313. 
 imprisonment until payment of, 1063, 1064. 
 naval hosiiil al fund credited with, 1159. 
 Forfeiture of pay; deck courts may adjudge, 1308. 
 
 summary courts-martial may adjudge, 1007. 
 General courts-martial; may inflict same punishments 
 as summary courts, 1010. 
 
 1687 
 
INDEX. 
 
 SENTENCE-Continucd. 
 
 Hard labor; naval courts-martial may adjudge, 983, 
 
 9S4. 
 lloalth of accused ondangorod by; substitution of 
 
 dillcrent punishment, KKHI. 
 lUcgal; discharge revoked, 568, 975, 1008, 1009. 
 Imprisonment, 990. 
 
 at hard labor, .n ci\al prison or penitentiary, 9S3, 
 984. 
 substituted for death, 983, 984. 
 beyond term of enUstmcnt, 1004. 
 place of, designated by reviewing authority, 1004. 
 until pajTncnt of fine, 1003, 1064. 
 Inadequate; medical officer convicted of scandalous 
 
 conduct, 583. 
 Inoperative until confirmed, 1037. 
 Irons, use of abolished; exceptions, 1309. 
 Jurisdiction of civil courts with relation to courts- 
 martial, 402, 403, 1047-1051. 
 Limitation of punishment, time of peace; naval 
 
 courts-martial, 1062-10(>4. 
 Loss of numbers, continuing punishment; remission 
 of, 1052. 
 officer's promotion pending; effect of, 652. 
 Majority of votes determines, 1034. 
 Midshipmen con\acted of brutal or cruel hazing, 1287. 
 
 for hazing; punishments authorized, 1286, 1287. 
 Mitigation of, 85. 
 
 by Secretary of the Navy, 1309. 
 Coast Guard personnel, 1455. 
 deck courts, 1308. 
 form of action, 1052. 
 general courts-mai tial, 1051-1055. 
 summary courts-martial, 1009. 
 to dismissal, 441, 1010. 
 Pardon of, 85. 
 
 deck courts, 1308. 
 President's power to mitigate, 1053, 1054. 
 Prohibited punishments, 1034. 
 Promulgation of, 1045. 
 
 Reconsideration of action mitigating, 1051, 1052. 
 Reduction of officer to another office, 988. 
 of officer to enlisted rating, 988. 
 
 confirmation by President, 1045. 
 of warrant officer to enlisted man, 524. 
 Remission of, 85. 
 
 by Secretary of the Navy, 1309. 
 Coast Guard personnel, 1455. 
 deck courts, 1308. 
 general courts-martial, 1051-1055. 
 loss of pay; discharge of accused operates as, 567. 
 summary court-martial, without commuting, 
 1009. 
 Repeated offenses, 1003, 10O4, 1063. 
 Reviewing authority; place of imprisonment desig- 
 nated by, 1064. 
 Revision of by court-martial, 1043, 1044. 
 Single, for all offenses, 1063. 
 Secretary of the Navy's power over, 1008, 1009. 
 Secret, not to be divulged until approved by proper 
 
 authority, 1019. 
 Summary courts-martial, 1006, 1007, 1309. 
 execution of, 1312. 
 
 approval by reviewing authority, 1007-1009, 
 1442. 
 Suspension from rank and grade, continuing punish- 
 ment; remission of, 1052. 
 midshipmen; President's action on, 1248. 
 naval officer; undesirable punishment, 583. 
 of officer's pay by court-martial, 1033. 
 precedence of officer under, 668, 669. 
 remission of unexecuted portion of, 669. 
 
 SERVANTS: 
 
 Unauthorized use of (Government laborers, 702. 
 Use of enlisted men by naval officers, 829. 
 SERVICE: 
 
 See Length of service; Pay of naval Establishment; Sea 
 
 service. 
 Absence without leave; period of not credited, 588. 
 Appropriations transferred between bureaus or de- 
 partments in payment for, 579, 1409, 1536. 
 Army and Navy, credited to naval officers, 1191. 
 -Vrmy cadet, not credited to naval officers, 1390. 
 Army, credited to enlisted men of Navy and Marine 
 
 Corps for retirement, 1299. 
 
 -Vrmy, Navy, Marine Corps, Coast Guard, PubUc 
 
 Health Service and Coast and Geodetic Survey; 
 
 credited for longevity pay, 1535. 
 
 Civil employees, for retirement; computation of, 1538. 
 
 Civil war; retirement of officers for, 968, 1266, 1282, 1293, 
 
 1312. 
 Coast Guard and Revenue Cutter Service; naval per- 
 sonnel credited with, for pay and retirement, 1550. 
 Commandant's clerk, not mihtary service, 534. 
 Computation of, in Naval Reser\'e Force, 1509. 
 
 for retirement and longevity pay, 587-589, 1191, 
 1390, 1535, 1550. 
 Constructive, credited to naval officers for pay piu:- 
 poses, 821-823, 1268. 
 credited to naval officers for precedence, 691-694, 
 
 1390. 
 not credited for pay to officers appointed after 
 March 4, 1913; 1390. 
 Definition of "serve;" period of confinement not in- 
 cluded, 589. 
 Dental officers who have gained or lost numbers, 1421. 
 EnUsted men credited with, for retirement, 1269, 1270, 
 1291, 1299. 
 transferred to Naval Reserve Force; how computed, 
 1449. 
 Incapacity incident to; retirement for, 603. 
 Length of; computation, officers transferred to differ- 
 ent branch of the service, 1249. 
 Midshipman, not credited to Army officers, 1388. 
 
 not credited to naval officers, 1390. 
 Naval Reserve Force; computation of longevity for 
 active duty pay, 1511. 
 and Marine Corps Reserve; regular officers and en- 
 listed men credited with, 1529, 1530. 
 Pensions allowed disabled enhsted men for, 1154, 1155. 
 pajrment to superintendent. Saint Ehzabeths Hos- 
 pital, 789. 
 Public Health Service credited with, in other organi- 
 zations, 1533. 
 Requirement lor promotion by selection, 1432, 1434. 
 Sea; definition of; decisions relating to, 878-883. 
 Time under arrest, in confinement, on bail, etc., 588, 
 
 589. 
 Warrant officers. Navy and Marine Corps, credited 
 with reserve service for retirement and longevity 
 pay, 1529, 1530. 
 SERVITUDE: 
 
 Involuntary; military and naval enlistments are not, 
 136. 
 SESSION LAWS: 
 
 Navy Department supphed with, 1235. 
 SET OFF: 
 
 Against Government; right of officer to retain amount, 
 
 246. 
 Court of Claims' jurisdiction, 1362. 
 Jurisdiction of accounting officers, 244-246. 
 Public moneys to be deposited without deduction, 
 1095, 1096. 
 
 1688 
 
INDEX. 
 
 SETTLE; 
 
 Definition of, 233. 
 SEWING aiACHINES: 
 
 Exchange of, in part payment for new ones, 1474. 
 SHELLS: 
 
 Restrictions on purchase of, 1395, 1396. 
 SHIP KEEPERS: 
 
 Enlisted men detailed as, nautical school in Philip- 
 pines, 1297, 1298. 
 SHIPPING ARTICLES: 
 
 What contained in, 555, 556. 
 SHIPPING BOARD. 
 
 Commandeering of vessels leased, chartered or pur- 
 chased from, 1467. 
 Detail of naval oflScers for duty with, 1466. 
 Development of merchant marine for use as naval 
 
 auxihary, 1554, 1555. 
 Emergency Fleet Corpoi^tion; restriction on payment 
 of lump-sum employees, 1491, 1492. 
 transfer of employees to and from departments, 
 1491. 
 Navigation laws and regulations; revision of, 1467. 
 Operation of alien vessels seized, 1477. 
 Procurement of vessels and construction and repair of, 
 
 in na\-y yards, etc., 1466. 
 Sale of timber lands, logs, etc., acquired for the Navy 
 
 1518. 
 Transfer of docks, etc., to Navy Department, 1555. 
 Transfer to, of naval vessels, 1467. 
 SHIPS: 
 
 See Vessels; Vessels of the Navy. 
 SHIP'S BOOKS: 
 
 Entries required to be made in, 995. 
 SHIP'S COMPANY: 
 
 Articles for the government of the Navy to be read to 
 
 996. 
 Vessel lost; amenable to discipline until discharge, 996. 
 SHIP'S HELPERS: 
 
 Enlisted men, additional pay, 866. 
 SHIP'S LOG: 
 
 Punishments by commander of naval vessel to be 
 entered in, 1002. 
 SHIP'S STORES: 
 
 Profits; charged on sales from, 13.59. 
 
 jurisdiction of accounting oflicers, 233. 
 not public money, 232. 
 SHIP'S TAILORS: 
 
 Enlisted men; additional pay, 866. 
 SHIPWRECK: 
 
 See Vessels of the Navy. 
 Construed, 272. 
 SHORE: 
 
 Offenses committeed on, against inhabitants; punish- 
 ment. Navy, 985. 
 SHORE DUTY: 
 
 See Details; Foreign shore duty; Officers of the Navy; Pay 
 
 of Naval Establishment; Service. 
 Beyond seas, definition of, 1275. 
 
 pay of Marine Corps, 941, 948, 1275. 
 pay of naval officers, 818-821, 1275, 1302. 
 pay of naval officers under personnel act, 1267. 
 Distinction between what constitutes sea service and 
 
 shore duty, 878-883. 
 Engineer officers and construction officers, 1401. 
 In time of war or emergency; ehgibility for promotion 
 
 by selection, 1434. 
 Marine Corps, 955. 
 Naval officers; pubUc interest must require and orders 
 
 so state, 1191, 1218, 1219. 
 Naval Reserve Force; restricted, 1528. 
 Navy mail clerks, 1513, 1514. 
 
 SHORE DUTY-Continued. 
 
 Pay of officer detailed as assistant to Bureau of Medi- 
 cine and Surgery, 466. 
 officer in charge of Nautical Almanac, 391. 
 officers under personnel act, 1267. 
 superintendent. Naval Observatory, 390. 
 warrant officers, 1472. 
 Sea pay allowed commandant. Mare Island navy yard, 
 1177. 
 allowed superintendent, Naval Academy, 1177. 
 Supervisor, New York Harbor; naval officer allowed 
 sea pay as, 1198, 1199. 
 SHORE LIBERTY: 
 
 Commanding officers to grant, 574. 
 Deprivation of, by commanding officer, as punish- 
 ment, 1002. 
 On foreign station; deprivation of, by summary court- 
 martial, 1006. 
 SHORTEST USUALLY TRAVELED ROUTE: 
 
 Mileage allowed for, 845. 
 SICK: 
 
 Separate compartment for, on naval vessels, 995. 
 SICK LEAVE: 
 
 See Leave of absence. 
 SICKNESS: 
 
 Absence from duty caused by; due to misconduct, 
 
 82.5, 1436. 
 Chiefs of bureaus, duties of, 213, 214, 364, 466, 1222, 1224, 
 
 1201,1280,1284, 1418. 
 Discharge for; preference in appointments to civil 
 
 offices, 1065. 
 Head of department, duties temporarily performed 
 
 by another, 212, 214. 
 Medical treatment; naval persoimel required to sub- 
 mit to, 458. 
 SIGNATURES: 
 
 Abbreviation used by pubUc officer, 351. 
 
 Acting chiefs of bureaus, 213. 
 
 Assistant head of department, 194, 213. 
 
 Forging or counterfeiting; claims against United 
 
 States; punishment. Navy, 990. 
 Heads of departments; what constitutes, 351. 
 Mark included, in construing Criminal Code, 1355. 
 President's confirmation of court-martial sentence, 
 
 1040-1042. 
 President's required to commissions before seal an- 
 nexed, 1248. 
 Retired officers, 633. 
 
 Rubber stamp used by public officer, 351. 
 SILVER: 
 
 Disbursements to be made in, 1100. 
 Gifts to naval vessels; acceptance and care of, 1305. 
 Transporting on naval vessel, 985. 
 SINGULAR: 
 
 Includes plural in Federal statutes, 18,5, 1355. 
 SITES: 
 
 Condemnation proceedings to obtain, 1199, 1490, 1491. 
 Land not to be purchased without specific appropria- 
 tion and specific law authorizing, 1116, 1117. 
 Leased by Navy; improvements to become property 
 
 of lessor, 1508. 
 Naval hospitals; Secretary of the Navy may procure, 
 
 1159, 1160. 
 Transferred to jurisdiction of Navy Department, 1457. 
 SLAVES: 
 
 Naval forces not to return fugitives from service or 
 
 labor, 994. 
 Seizure of vessels in slave trade, 1347, 1348. 
 SLEEPING ON WATCH: 
 Punishment for. Navy, 979. 
 
 1689 
 
INDEX. 
 
 SMALL ARiMS: 
 
 Target practice; sale of ammunition, etc., to societies 
 promotinK, 1516. 
 SMALL-STORES FUND: 
 Created for Navy, 1184. 
 .Nii\ y, consolidated with clothinR fimd, 12ai. 
 SMITIISOMAX INSTITUTION: 
 
 Heads of departments to assist, in acquisitions for 
 Zoological Park, 1204. 
 SOCIAL HYGIENE BOARO: 
 
 Creation of, etc., 1517, 1518. 
 SOCIETIES: 
 
 See Badges: Military societies; Uniforms. 
 Membersliip fees and o.xpenses of public officers; re- 
 strictions on payment of, ri71. 
 .*^inall-arms target practice; societies organized to en- 
 courage, 1516. 
 SOLDIERS AND SAILORS: 
 
 .See Civil estabtiishmcnl; Enlisted men. 
 Honorably discharged from war with Germany; rein- 
 statement in civil establishment, 1530. 
 Preference for appointment and retention, civil estab- 
 lishment, 338, 780, 1065, 1180, 1383, 1524, 1526, 1530. 
 SOLICITING: 
 
 Contributions for presents, etc., 10T3, 1334, 1335. 
 SOLICITOR: 
 
 See Naval Solicitor. 
 
 Naval; duties assigned to Judge Advocate General, 
 
 1186, 1187. 
 Navy Department; appointment made by Secretary 
 of the Navy, 206. 
 duties of, 321. 
 
 investigation conducted by, 218. 
 SOLICITOR GENERAL: 
 
 Duties of, 282, 322. 
 SOLITARY CONFINEMENT: 
 
 Commanding officer may inflict as punishment, 1002. 
 Summary coiu-t-raartial may adjudge, 1006. 
 SOUTH AMERICAN REPUBLICS: 
 
 Detail of naval officers to, in connection with United 
 States commerce, 576. 
 of naval officers to; acceptance of offices under; 
 dual compensation, 1556. 
 Naval officers appointed to office' in Brazil; leave of 
 absence, etc., 1399. 
 SPANISH: 
 
 Professor of. Naval Academy, 771. 
 SPECIAL ACTS: 
 
 See Statutes. 
 SPECIAUSTS: 
 
 Marine Corps, enlisted men, pay, 942, 946. 
 SPECIAL MECHANIC: 
 
 Ratings established in Navy, 1495. 
 SPECIFICATIONS : 
 
 See Charges and specifications; Contracts. 
 SPEEDY TRIAL: 
 
 Coiut-martial to sit from day to day, Simdays ex- 
 cepted, until sentence, 1029. 
 Right of accused, 129, 130. 
 SPIES: 
 
 Punishment by naval court-martial, 981. 
 SPIRITS: 
 
 DistiUed; admitted on naval vessels for medical pur- 
 poses only, 989. 
 SPONGES: 
 
 Employment of naval forces to enforce law relating to, 
 1289, 1290. 
 SQUADRONS: 
 
 Commanding officers; allowed rank of flag officer, 576, 
 6G0. 
 may convene general courts-martial, 1442. 
 
 SQUADRONS— Continued . 
 
 Foreign; stores furnished to, 579. 
 Medical stores; procurement of, 466. 
 Retired officers; command in lime of war, 659. 
 STAFF BUREAUS: 
 
 Navy Department, 378, 672. 
 STAFF OFFICERS: 
 
 See Chaplains; Civil engineers; Construction Corps; 
 Dental Corps; Marine Corps: Medical Corps; Officers 
 of the Navy; Professors of matlicmaiics; Supply Corps. 
 Additional numbers excluded from computations, 
 1429. 
 officers permanently commissioned with rank of 
 rear admiral, 1429. 
 Advancement in rank, 680-685. 
 
 above lieutenant commander, 1513. 
 below lieutenant commander, 1426. 
 examinations, 1473, 1481, 1482. 
 without change of grade, 682, 683. 
 Appointment from graduates of Naval Academy, 765- 
 
 768, 1392. 
 Chiefs of bureaus; eligibility for appointment, 362, 378. 
 Civil engineers held to be, 685. 
 Command; rank not to confer, 702, 1265. 
 Communicating directly with commanding officer, 670, 
 Distribution in grades, 1427. 
 
 Examinations for advancement in rank, 1473, 1481, 
 1482. 
 not required for promotion in grade, 1481, 1482. 
 Line officers detailed to duty under, 1359. 
 Marine Corps, 1460, 1461. 
 
 organization; appointment, details, etc., 1460, 1461. 
 rank of, 929, 1460. 
 relation to the line, 921, 922. 
 Midshipmen appointed as, 765-768, 1392. 
 Military command, rank not to confer right to exer- 
 cise, 702, 1265. 
 line officers detailed to duty under, 1359. 
 Military duties not compatible with grade of, 507. 
 Number, 1425, 1549. 
 
 in any corps, grade or rank; computations; dispo- 
 sition effractions, 1428, 1429. 
 in any grade or rank; computations; additional 
 numbers excluded, 1429. 
 not to be reduced, 1429. 
 permanent strength not reduced by act of June 4, 
 1920; 1549. 
 Physical examination for advancement, 708. 
 Precedence; communicate directly with commanding 
 officers, 670. 
 date of commission, 1429. 
 with line officers, 689-695. 
 
 in processions, courts-martial, etc., 704. 
 Promotion by selection, 1513. 
 
 by selection; time for convening boards, 1529. 
 by seniority, 680, 681. 
 Quarters, 695. 
 Rank, advancement in, 680-685. 
 
 advancement above lieutenant commander, 1513. 
 advancement below lieutenant commander, 1426. 
 general provisions relating to, 673-685. 
 not to confer right to exercise military commaiid, 
 
 702, 1265. 
 retired for age or length of service, 685. 
 for causes incident to the service, 687. 
 Rear admirals; distribution between upper and lower 
 half, 1428. 
 not a grade, 682. 
 
 upper and lower half; pay and allowances, 1429. 
 Relative rank; changed to actual rank, 1265. 
 with Army officers, 667. 
 
 1690 
 
INDEX. 
 
 STAFF OFFICERS— Continued. 
 
 Relative rank with Marine officers, 667. 
 Retirement; age or length of service, 6cS5. 
 
 with rank of rear admiral, 672, 675. 
 Titles, 671, 6S3. 
 
 not changed by rank, 1265. 
 STAMP: 
 
 Facsimile signature of public ofBcer, 351. 
 STANDARDS: 
 See Flags. 
 
 Screw threads; used by Navy; specifications in pro- 
 posals, 1520. 
 STATE DEPARTMENT: 
 
 Foreign decorations, presents, etc., tendered to officers 
 through, 1187. 
 STATE INSTITUTIONS: 
 
 Detail of naval officers to military academies, etc., 435. 
 STATES: 
 
 Arrest of Federal officers by, 51. 
 
 Cooperation with United States in protection of naval 
 
 forces against disease, 1517. 
 Domestic violence; use of naval vessel, 114. 
 Elections; naval officers not to interfere with, 1079. 
 Foreign, acceptance of present from, 75. 
 Health laws, jurisdiction, 49, 50. 
 
 reports not furnished to, in naval cases, 461. 
 Insurrection against; emploj'ment of Federal forces to 
 
 suppress, 1169. 
 Interference with Federal instnimentaUties, 47. 
 
 with Federal property, 774. 
 Jurisdiction of oflenses on naval vessels, 67. 
 of perjury committed in Federal court, 53. 
 over militia, 71. 
 
 over United States property, 289-292. 
 Lands leased from, by the Navy; improvements to 
 become property of lessor, 1508. 
 purchased in , for use of United States, 282. 
 Laws and records evidence in court, 429, 430. 
 Laws of, appUcable in Federal reservations; criminal 
 
 code, 1351. 
 Limitation upon exemption of Federal agencies from 
 
 control by, 51. 
 Loan of naval equipment to military schools on gov- 
 ernor's appUcation, 1277. 
 Naval forces employed to suppress insurrection against, 
 
 1169. 
 Naval vessel, use of, to maintain law, 114. 
 Notaries public of, authorized to administer oaths and 
 take acknowledgments, 1072. 
 may administer oath of allegiance, 1093. 
 Offenses violating law of two Governments, 120. 
 Pilotage; discrimination against national vessels for- 
 bidden, 1130. 
 Penitentiaries and prisons may be used by naval 
 
 authorities, 983, 984. 
 Process; service on persons in naval or civil service, 
 
 292, 293. 
 Taxation of Federal instnimentaUties, 48. 
 STATE, WAR AND NAVY BUILDING: 
 See Navy building. 
 Apportionment of space in, 331. 
 Superintendent of; naval officer. Civil Engineer Corps, 
 532. 
 retired officer ineligible, 643. 
 STATION: 
 
 Absence from, without leave or after expiration of 
 
 leave, 985. 
 Change of; transportation furnished, 1535, 1536. 
 Exchange of by officers; mileage, 844. 
 Marine Corps headquarters held to be, 895. 
 Permanent; defined, 1536. 
 
 STATIONERY: 
 
 Estimates and appropriations for. Navy, 1102. 
 Printed in course of manufacture; excepted from 
 printing and binding law, 12%. 
 STATUTES: 
 
 Appropriation acts; title of, 187. 
 Bill of attainder, 73. 
 Classes of, 7. 
 Constitutionality of, 30. 
 
 Attorney General's opinion, 321. 
 
 promotion by seniority, 647, 648, 681. 
 Enforcement in foreign countries, 70. 
 Errors in; effect of, 287. 
 Ex post facto, 74. 
 Form of, 1S7. 
 Interpretation of, 9-24. 
 
 appropriations, 1297. 
 
 "authorized ' " held mandatory, 1203. 
 
 clerks construed, 206. 
 
 clerks, includes chiefs of divisions, 203. 
 
 company or association, defined, 186. 
 
 contracts not authorized unless language of law 
 specific, 1297. 
 
 county defined, 185. 
 
 death, resignation, absence and sickness, con- 
 strued, 214, 215. 
 
 definitions of particular words, 185, 186. 
 
 department defined, 191. 
 
 eflect of regulations, 787. 
 
 errors in; effect of, 287. 
 
 general principles, 9-24. 
 
 "Insane person"' and "lunatic" defined, 185. 
 
 masculine applies to females, 185, 1355. 
 
 "oath" includes affirmation. 
 
 officer, includes persons authorized to perform 
 duties of office, 1S5. 
 
 "persons" applies to partnerships and corpora- 
 tions, 185, 1355. 
 
 plural includes singular, 185, 1355. 
 
 present tense includes future, 1355. 
 
 seal includes impression without wax, 186. 
 
 signature or subscription includes a mark, 1355. 
 
 singular includes plural, 185, 1355. 
 
 vehicle defined, 185. 
 
 vessel defined, 185. 
 
 whether Marine Corps included in Navy laws, 962, 
 963, 967, 968. 
 
 whoever, includes corporation, 1355. 
 
 writing includes printing and tj-pewrittng, 1355. 
 Navy; whether applicable to Marine Corps, 962, 963, 
 
 907, 968. 
 Penal ; discharge for moral un fitness held not to be, 628. 
 Repeal, effect of on former act, 187. 
 
 effect of on penalties, prosecutions, etc. 187. 
 Revised Statutes, explanation of, 2. 
 Special act, designating appointee, 93, 532. 
 
 for reappointment of former officer, 830. 
 
 for retirement of officer, 592, 911. 
 
 restoring officer to former rank, 733. 
 ST.4TUTES .\T L.\RGE: 
 
 Definitions, particular words in, 185, 186. 
 Explanation of, 5. 
 
 Navy Department suppUed with, 1235. 
 STATUTES OF LIMIT.4TIONS: 
 
 Claims against Government; checks outstanding more 
 than three years, 277. 
 
 examined by accounting officers, 1182. 
 Courts of inquiry not bound by, 1056. 
 Desertion in time of peace, 1060-1062. 
 
 in time of war, 1057. 
 
 54641°— 22- 
 
 -107 
 
 1691 
 
INDEX. 
 
 STATITKS OF LIMITATIONS— Continued . 
 
 liciicral offenses: appluable to court-martial or other 
 
 punishments, 1057-1000. 
 Jurisdiction of court-martial after discharge of accused 
 
 from service, KWO. 
 Period during which accused was in custody of civil 
 
 authorities, 1059. 
 Suits on bonds of delinquent oflRcers, 1199. 
 Waiver of; decisions relating to, 1057, 1058, 1062. 
 STKAM BOILERS: 
 
 Purchase of, for Navy, 1182, 1183. 
 STEAM ENGINEERING: 
 
 See liurcaus; Chiefs of bureaus.' 
 Name of bureau changed to Engineering, 1.548. 
 STE.4M ENGINES: 
 
 Estimates and appropriations for repairs and attend- 
 ance, navy j'ards, 1103. 
 STEAM VESSELS: 
 
 llcgulationof, 1135, 1136. 
 STEEL: 
 
 Domestic manufacture to be used in naval vessels, 1195. 
 STEERAGE OFFICERS: 
 
 Definition of, 704. 
 STEPCHILDREN: 
 
 Citizenship of, 139. 
 STOLEN GOODS: 
 
 Punishment for receiving, etc., 1350, 1351. 
 STONE: 
 
 Use of by Navy, from national forests, 1409. 
 STOREKEEPERS : 
 
 Appointment and number of, 531. 
 Ci^^lians; foreign stations, 533. 
 required to give bond, 533. 
 Clerks of. Secretary of the Navy may abolish offices, 533. 
 Estimates and appropriations for expenses of, Navy, 
 
 1103. 
 Foreign stations; naval officers detailed for duty as, .579. 
 
 naval officers to give bond, 579. 
 Naval Academy, 770, 771. 
 
 property returns to be rendered by, 1304. 
 Pay of, on foreign stations, 846, 847. 
 Rating established in the artificer branch, 1423. 
 STORES: 
 
 See Contracts: Public property. 
 
 Annual report of, used in construction, repair and 
 
 equipment of vessels, 381. 
 Dealing in, for private benefit; punishment. Navy, 989. 
 Foreign squadrons; care of, 579. 
 Foreign stations; estimates and appropriations for 
 
 transportation. Navy, 1103. 
 Marine Corps; sale to naval and civilian personnel, 
 
 1391, 1464. 
 Medical; distilled spirits on naval vessels, 989. 
 
 procurement of, for fleets and squadrons, 466. 
 Midshipmen's; profits are public money, 232. 
 Misappropriation of; punishment, 1325. 
 Naval Supply Account to govern purchase and issue 
 
 of, etc., 1366, 1367. 
 Naval vessels; inspection and preservation of provi- 
 sions, 995. 
 Navy and Marine Corps; sale to Coast Guard and 
 Public Health Service personnel, 1533. 
 .sale to discharged persons under Public Health 
 treatment, 1554. 
 Procurement of, by one department or bureau for 
 another; transfer of appropriations, 1409, 1.536. 
 general provisions relating to, 352, 353, 354. 
 Profit on sales from ships' stores, 1359. 
 Purchase of. Navy, contrary to law, 1324, 1325. 
 
 of Navy, from small stores fimd, 1184. 
 Purchase, preservation and disposition of; regula- 
 tions governing, 787, 78S. 
 
 STORES— Continued . 
 
 Sale of. Army, Navy and Marine Corps, 1465. 
 
 to naval personnel and others, 53:<, 1313, 1314, 1391, 
 1404, 1533, 1554. 
 Subsistence; unlawfully selling, stealing, etc., 990. 
 Unauthorized sale of; punishment, 1325. 
 Value of , charged to naval supply account fimd: issues 
 or sales credited to, 15.57. 
 STRAGGLERS: 
 Arrest of, 118. 
 STRICTISSIMI JURIS: 
 
 Sureties on bonds; liability of, 491. 
 STRIKING: 
 
 Flag to enemy, punishment for, in Navy, 980. 
 Other persons in Navy, 9S4. 
 Superior officer; punishment for. Navy, 970. 
 STUDENTS: 
 
 Afforded facilities for study and research in executive 
 departments, etc., 1275. 
 SUB3IARINES: 
 
 Enlisted men, additional pay for service on, 865, 86(). 
 SUBORDINATES: 
 
 Maltreatment or oppression of; punishment, 984, 1351. 
 SUBORDINATION: 
 
 Commanding officers to show example of, 97s, 979. 
 SUBORNATION OF PERJURY: 
 
 Naval courts-martial; prosecutions, 431. 
 Punishment, 1335. 
 SUBPOENAS: 
 
 See^ccMSfd; Courts-martial; Process: Witvcsscs. 
 Accused entitled to process for obtaining witnesses, 
 
 129, 132, r.iZ. 
 Application lor, in departmental cases; form of, 219, 220. 
 Commission to take testimony, requiring production 
 
 of records, 423. 
 Form of, 425. 
 
 Heads of departments; assistants subpoenaed to testify 
 before commission, 422. 
 whether required to obey, 79, 348, 424. 
 Member of Congress subject to, 33. 
 President not required to obey, 77. 
 Witnesses required to appear before departments in 
 pending claims, 219. 
 I to make depositions for use in Federal courts, 421. 
 
 SUBSCRIPTIONS: 
 
 Newspapers and periodicals; payments in advance, 
 1401, 1408, 1409. 
 SUBSISTENCE: 
 
 See Contracts: Public property; Rations; Stores. 
 
 Absent from vessel, 891, 896. 
 
 EnUsted men, 896, 897, 954. 
 
 Naval officers detailed to coast and Geodetic Survey, 
 
 1151, 1215. 
 Purchase of, in excess otappropriations, 1116, 12SS. 
 Travel outside District of Columbia, 1394, i:59S, 1399. 
 SUFFRAGE: 
 
 Naval personnel's right to vote not restricted by crimi- 
 nal code, 1321. 
 SUICIDE: 
 
 Line of duty, questions relating to, 612, 614, 615. 
 
 SUITS: 
 
 See Bonds; Contracts; Court of Claims; Damages; Dis- 
 
 bursir}g officers. 
 Public moneys withheld; recovery of, 1097, 1098. 
 SUMMARY COURTS: 
 
 Precedence of line and staff officers on, 704. 
 SUMMARY COURTS-MARTIAL: 
 
 See Courts-martial. 
 SUMMER SCHOOLS: 
 
 Secretary of the Navy may establish for boys: enroU- 
 ment in Naval Reserve Force, 1546. 
 
 1692 
 
INDEX. 
 
 SUXBATS: 
 
 Closing of departments on, 201. 
 
 Divine services to be conducted on vessels and at naval 
 
 stations, 979. 
 Excluded from leave of absence, employees in depart- 
 ments, 1263. 
 General court-martial not required to sit on, 1029. 
 Holidays falling on, 782. 
 
 Hours of labor, law not applicable to, 1220, 1221. 
 Midshipmen not to pursue studies on, 770. 
 SUPERINTEXDEXT: 
 See Naval Academy. 
 
 Naval Academy; duties respecting dismissal of mid- 
 shipmen, 1286. 
 pay, 815, 1177. 
 
 removal of, for neglecting instructions to midship- 
 men, 1195. 
 rules to prevent hazing, 1281. 
 Naval Observatory; allowed shore duty pay of his 
 grade, 390. 
 line officer: rank, 1276, 1277. 
 Nurse Corps, female, 1303. 
 Rope walks, at na\'y yards, 779-780. 
 SUPEUIXTEXDEXT OF DOCU3IEXTS: 
 
 SeePrinling and binding. 
 SUPERIOR OFFICER: 
 
 See A Hides for the Government of the Navy; Contribu- 
 tions; Presents. 
 Definition of, 980, 986, 1073. 
 
 Petty officers entitled to obedience from inferiors, 52.5. 
 Senior in rank construed, 930. 
 SUPERVISORY BO.^RDS: 
 
 Examinations for promotion, 724. 
 SUPPLIES: 
 
 See Contracts; Hospital supplies; Medical supplies; 
 
 Naval supply account; Public property; Stores. 
 Accumulation of, beyond needs of current year, 387, 
 
 1113, 1473. 1482. 
 Appropriations transferred for expenditure by bureau 
 
 or department procuring, 1409, 15.36. 
 Army; furnished naval and marine detachments, 433. 
 Dealing in, for private benefit; punishment, 989. 
 Executive departments, procurement of, 1358. 
 General supply committee; duties, etc., 1358. 
 Interchange of, between departments; payment for 
 
 1409, 1.526, 1528, 1536. 
 Medical stores, procurement of, 466. 
 Naval; purchase and issue of, 1216. 
 Naval supply account to govern purchase and issue of 
 
 stores, etc., 1366, 1367. 
 Naval vessels; inspection and preservation of provis- 
 ions for, 995. 
 Navy; accounts kept, reports to Congress; transfer be- 
 tween bureaus, etc., 1203. 
 aimual report of proposals and contracts, 381. 
 transportation in American vessels, 128:5. 
 Procurement of, in time of war, 1113, 1413, 1475, 1476. 
 Purchase of, in excess of needs for current year, 387, 
 
 1113, 1473, 1482. 
 Purchase, preser\'ation and disposition of; regulations 
 
 governing, 787, 788. 
 Regulations governing; President to make, 787, 788. 
 Sale of Army, Navy and Marine Corps subsistence, 
 1465. 
 Navy and Marine Corps, to Coast Guard personnel, 
 
 1533. 
 i^&vy and Marine Corps to Public Health Ser\'ice 
 
 personnel, 1533. 
 subsistence stores to naval personnel and others, 
 5.33, 1313, 1314, 1391, 1464, 1.5:J3, 1554. 
 Transfer of, between Army and Navy, 1528. 
 
 SUPPLIES AND ACCOUNTS: 
 
 See Bureaus; Chiefs of bureaus; Paymaster general. 
 Name of bureau changed to, 1218. 
 SUPPLY ACCOUNT: 
 
 See Naval supply account. 
 SUPPLY CORPS: 
 
 See Accounts; Accounting officers; Bonds; Disbursing 
 officers; Officers of the Navy; Public moneys; Staff 
 officers. 
 Accounts of officers rendered direct to accounting 
 officers, 1097. 
 unchanged for three years, 279. 
 Acting pajTnasters; appointment, 472. 
 Advancement in rank, 1426, 1513. 
 Advances of public money by; order of commanding 
 
 officer, 498. 
 Appointments in, 469. 
 
 of assistant paymasters from pay clerks and chief 
 
 pay clerks, 1407. 
 of officer as chief of bureau, 379. 
 quaUflcations for assistant paymasters, 470. 
 Assignment of wages attested by officer of, 892. 
 Bonds, 474-496. 
 
 amount of; may be increased by President, 1098. 
 effect of new appointment, 496. 
 not affected by new commissions, 681. 
 renewal of, 496. 
 Checks outstanding more than three years, 276-278. 
 Clerks allowed officers of, 496, 497. 
 
 not part of, 470. 
 Command; relative rank not to conf e r right of, 702, 1265 
 Defined; only commissioned officers included, 470. 
 Delinquent officers; proceedings against, 427, 428. 
 Disbursing officer on foreign station, appointment of, 
 
 788. 
 Distribution of officers in grades, 1427. 
 Duties of, 468. 
 
 disbursing officers, 1098. 
 regulations prescribing, 786. 
 Examinations for promotion, 471, 1473, 1481, 1482. 
 Fleet pajTuaster: appointment of, 474. 
 Generalinspectorof; duties, 1304. 
 General provisions relating to, 466-498. 
 Loans by officers of, prohibited, 497. 
 Name changed from Pay Corps to, 1530. 
 Naval Academy; storekeeper detailed from, 770. 
 Number of officers authorized, 466, 467, 1425. 
 Officers; cjommanding officer not required to perform 
 
 duties of, 574. 
 Officers' records lost with vessels sunk or captured, 
 268. 
 relieved from responsibility by Secretary of the 
 
 Navy, 1527, 1528. 
 responsibility; insurer of funds, 487. 
 
 relieved from, 488, 1362, 1363, 1527, 1528. 
 Organization of, 466. 
 Pay Corps changed to, 1530. 
 
 Paymaster, passed assistant paymaster or assistant 
 paymaster, defined, 497. 
 defined; means officer of Supply Corps, 380, 471. 
 Promotions, 471, 1426, 1473, 1481, 1482, 1513. 
 
 - effect on bond, 496. 
 Rank of officers in, 676-677, 1427. 
 
 rear admiral authorized in, 676, 677. 
 Report of checks outstanding more than three years, 
 
 279. 
 Responsibility of officers; disbursement by order of 
 superior, 266. 
 vessels wrecked or captured, 266. 
 SUPRE.>IE COURT: 
 
 Appeals to, from Court of Claims, 1365. 
 
 Attorney General and subordinates to argue cases, 322. 
 
 1693 
 
INDEX. 
 
 SUPREME COUKT— Continued. 
 
 Department of Justice to conduct proceedings in, 323. 
 
 Reports and digests: distribution of, 1365. 
 SURETIES: 
 
 See Bondf. 
 Bonds, 4S4-4S6. 
 
 inarrie<l women, 4S4, 485. 
 of officers, Supplj' Corps, 474. 
 Companies acting as, 485, 486. 
 Discharge of, 494, 495. 
 Liability of, 491-495. 
 President not authorized to release, 495. 
 Responsibility of: new bonds given, 493, 494. 
 SURETY C03IPAN1ES! 
 See Bonds. 
 
 Bonds; provisions relating to, 1228-1230. 
 SURGEON GENERAL: 
 
 See Bureaus; Chiefs of bureaus; Medical Corps; Staff 
 
 officers. 
 Appointment of, 380. 
 Appointments and removals in Nurse Corps, female, 
 
 made by, 1303, 1304. 
 Duties of female nurses prescribed by, 1303, 1304. 
 Navy: member of Interdepartmental Social Hygiene 
 Board, 1517. 
 service on board for licensing sale of viruses, etc., 
 
 1279, 1280. 
 to detail officer on advisory board, PubUc Health 
 Senice, 1279. 
 Title of; Chief of Bureau of Medicine and Surgery, 670, 
 671. 
 SURGEON OF THE FLEET: 
 Appointment of, 466. 
 Duties of, 466. 
 Pay, 792, 801. 
 SURGEONS: 
 
 See Assistant surgeons; Medical Corps; Passed assistant 
 
 surgeons; Staff officers. 
 Board of; examinations for promotion, 707-710. 
 Defined: means medical officers, 463, 466. 
 Detailed as assistant to Bureau of Medicine and Sur- 
 gery, 466. 
 to Red Cross; number increased by one, 14.36. 
 Duties relating to health of crew, 995. 
 Number of, increased, 1416. 
 Passed assistant surgeons promoted to, 1251. 
 Pay, 792, 801. 
 Rank of, 673. 
 SURGICAL OPERATIONS: 
 
 A\Tiether naval personnel required to undergo, 458, 459, 
 615, 616. 
 SURVEY: 
 
 Boards of: precedence of line and stafl members, 704. 
 Coast of United States; employment of naval officers 
 
 and vessels, 1151. 
 Foreign hydrographic; restrictions on preparation and 
 
 publication of, 1106, 1237. 
 Medical; transportation of enlisted men discharged 
 on, 875, 1274, 1275. 
 SUSPENSION: 
 
 Bonded officer; effect of, 492. 
 Chief of bureau, does not create vacancy, 215. 
 Commanding officer may inflict as punishment, 1002. 
 Continuing punishment: remission of, 669, 1052. 
 Disbursing officers making unauthorized exchange of 
 
 public funds, 1100. 
 Employees, civil establishment, 340, 783. 
 Failure to qualify for promotion, 729-734. 
 
 loss of numbers in lieu of, Marine Corps, 1463. 
 Midshipmen, 755. 
 
 court-martial sentence; confirmation by President, 
 124S. 
 
 SUSPENSION— Continued. 
 
 Midshipmen, without pay; not entitled to allowances, 
 
 828. 
 Naval officer traveling under; expenses, 84:5. 
 Pay of officer; by sentence of court-martial, 1033. 
 Plea of, in bar of trial, 119. 
 Precedence of ofl^icer under, 608, 669. 
 Proceedings of general court-martial not to be sus- 
 pended, 1029. % 
 Status of officer; not on sea duty, 880. 
 Substituted for dismissal, 1053. 
 Undesirable sentence, 583, 584. 
 SWORD: 
 
 Officer to deliver up, when arrested, 1029. 
 TAILORS: 
 
 Enlisted men, additional pay as ships' tailors, 866. 
 TARGET PRACTICE: 
 
 Regulations to protect navigation, 1519. 
 Rifle ranges open to naval personnel, 1413. 
 Sale of gims and ammunition to societies for encour- 
 agement of, 1516. 
 TATTOOING: 
 
 Prohibited as a punishment in the Navy, 1034. 
 TAXATION: 
 
 Income tax returns, executed before naval officers, 218. 
 PoU taxes, persons in Navy, 48. 
 State interference with Federal instrumentalities, 48. 
 Tonnage tax on vessel carrying coal for Navy, 140S. 
 TE A:\IS: 
 
 Estimates and appropriations for purchase and main- 
 tenance of. Navy, 1103. 
 TECHNHCALITIES: 
 
 Charges and specifications: form of, 1027. 
 TELEGRA3IS: 
 
 Appropriations for, not available to influence legisla- 
 tion, 1527. 
 TELEPHONES: 
 
 Not to be used to influence legislation, 1527. 
 Restriction on installation and use of, 1384. 
 TEMPER.V3IENTAL: 
 
 Unfitness for duty, retirement, 599. 
 TEMPORARY: 
 
 See Absence; Acting officers; Appointments. 
 Absence; allowance for quarters, 701 
 from ship; pay, 882, 883. 
 
 Secretary of the Navy and Assistant Secretary of 
 the Navy, 1401. 
 Appointments, 99. 
 
 acting paymasters, 472. 
 
 bonds, 4S3. 
 
 Executive departments, no extra compensation, 
 
 217. 
 limitation on, vacancies in department caused 
 
 by death or resignation, 216. 
 President making, without consent of Senate: ac- 
 counting officers notified, 1072. 
 statutory requirements not applicable to, 462. 
 Building: held not to be a "public building" 286. 
 Clerks; compensation of, 205. 
 
 employment during sessions of Congress, 208. 
 Commission: precedence under, 669. 
 Details: civil employees, within department, 203. 
 Employees; witnesses in court; fees allowed, 414. 
 Officers; acting assistant surgeons, 527, 528, 1261. 
 death gratuity law not applicable to, 1547. 
 Marine Corps; transferred to permanent service, 
 
 1548. 
 retirement for physical disability, 1549. 
 status of, 525. 
 
 transfer to permanent Navy, 1549, 1550. 
 Promotions; general law not applicable to, 721. 
 termination of, under act of July 1, 1918- 1515. 
 
 1694 
 
INDEX. 
 
 TEMPORARY— Continued. 
 
 Vacancy; chief of bureau, how filled, 213, 214. 
 head of department, how filled, 212, 214. 
 Major General Commandant, Marine Corps; fill- 
 ing of, 929. 
 TENTS: 
 
 Held to constitute public quarters, 698. 
 TERM. 
 
 See Enlistments. 
 TERRITORIES: 
 
 Acquisition of, war power, 40. 
 
 Citizenship in, 113. 
 
 Constitution, appUcability to, 112. 
 
 Crimes committed in, 1348-1351, 1.3.53, 1.354. 
 
 Decisions relating to powers of Congress over, 108. 
 
 Government of conquered, 41. 
 
 Guam and Tutuila, status of, 109, 110. 
 
 Hawaiian Islands; status of, 1075. 
 
 Laws and records; evidence in courts, 429, 430. 
 
 Military government of, 109. 
 
 Naval personnel not to hold civil office in, 1075. 
 
 Organized and unorganized, 113. 
 
 Porto Rico held to be, 1075. 
 
 Secretary of the Interior, jurisdiction over, 395. 
 
 Virgin Islands not organized, 1075. 
 
 Voting in, by naval personnel; restrictions, 1075. 
 
 TESTIMONIAL: 
 
 Of fideUty and obedience; honorable discharge is, 573. 
 TESTIMONY: 
 
 See Evidence; Self -crimination. 
 
 Degrading, protection of witness, 123. 
 
 Summary courts-martial; to be given oraUy before, 
 1006. 
 THANKS OF CONGRESS: 
 
 Effect of, 736, 737. 
 
 Marine officer, advancement for receiving, 933. 
 
 Memorial to officers receiving, 1314, 1315. 
 
 Officer advanced to rear admiral, if receiving, 454. 
 
 Ofiicers who received, during Civil War, 594. 
 
 Promotion of officer receiving, 736. 
 
 Retired officer receiving, restored to active list, 660. 
 THEATERS: 
 
 Discrimination against uniform of Navy, Marine 
 Corps, etc., 1360. 
 THEFT: 
 
 See Larceny. 
 
 Punishable by naval court-martial, 984. 
 THREATS: 
 
 See Articles for the Government of the Navy. 
 
 Against President; punishment, 1469. 
 
 Threatening matter on wrapper of mail, etc., 1311. 
 TIDE TABLES: 
 
 Publication of, by Hydrographic Office; number of 
 copies, 1238. 
 TIMBER: 
 
 Clearance of vessels laden with; cut from public lauds, 
 1125. 
 
 Condemnation of, standing or fallen, 1518. 
 
 National forests; use of by Navy, 1409. 
 
 Public lands, reserved for naval use, 10S7-1089. 
 
 Wheels; estimates and appropriations for, Navy, 1103. 
 TIME OF PEACE: 
 
 Construction of, 1010, 1011. 
 TIRES: 
 
 Exchange of, in part payment for like articles, 1474. 
 TITLES: 
 
 Appropriation acts, how entitled, 187. 
 
 Chief of Naval Operations, 1418. 
 
 Chiefs of bureaus, 369, 370, 670, 671. 
 after retirement, 376, 672. 
 returning to general service, 672. 
 
 TITLES— Continued. 
 
 Civil employees traveling to points outside the District 
 
 of Columbia, 1305. 
 Coast Guard officers, 705, 1553. 
 Documents and reports ordered printed by Congress, 
 
 1300. 
 Expense of securing abstract, 294. 
 Flag officer; construed as rear admiral, 576, 577. 
 Lands purchased by United States, 282. 
 Master changed to lieutenant, junior grade, 1190. 
 Midshipman changed to ensign, junior grade, 1190. 
 Naval cadet changed to midsliipman, 1279. 
 OflBcers; assigned to duty with rank and title of rear 
 admiral, 577. 
 decisions relating to, 671. 
 
 title, grade, rank and office defined and distin- 
 guished, 449, 450. 
 Pay clerk, substituted for clerk to assistant paymaster, 
 
 Marine Corps, 1515. 
 Paymaster's clerk changed to pay clerk, Navy, 1406. 
 Staff officers, 683. 
 
 commissions to contain, 680. 
 not changed by rank conferred on, 1265. 
 Students at Naval Academy, 739. 
 Warrant machinist changed to machinist, 1314. 
 Warrant officers, 512. 
 TOBACCO: 
 
 Contracts may be made for four-year periods, 1113. 
 Purchase of, after advertising and examination of 
 
 samples, 1250. 
 Piu'chase without advertising, 1113. 
 TOLL: 
 
 State charges for use of wharves, 50. 
 TON: 
 
 Coal for public service to weigh 2,240 pounds, 1110. 
 TONNAGE TAX: 
 
 Vessels transporting coal for Navy, 1408. 
 TOOLS: 
 
 Estimates and appropriations for purchase and repair 
 of, Navy, 1103. 
 TORTS: 
 
 Claims for, against Government, 79, 235, 13.59. 
 TOTAL AUTHORIZED ENLISTED STRENGTH: 
 
 Definition of, 537. 
 TOWAGE: 
 
 Estimates and appropriations for. Navy, 1103. 
 TRADE: 
 
 Dealing in supplies for private benefit on naval vessels 
 
 or at yards or stations, 989. 
 Detail of naval officers to foreign countries in interest 
 of, 576. 
 TRADE SCHOOLS: 
 
 EnUsted men under instruction; additional to au- 
 thorized strength. Navy, 1478. 
 TRADING: 
 
 Disbursing officers, etc.; in funds or property. Federal 
 or State, 1332. 
 TRAINING CAMPS: 
 Marine Corps, 1464. 
 TRANSFER: 
 
 See A ppropriations; Civil establishment; Details; Public 
 
 property. 
 Contracts with Goverimient; prohibited, 1117. 
 Employees between bureaus; explanation in esti- 
 mates, 1290. 
 between departments and independent establish- 
 ments, 1290, 1491. 
 Enlisted men, from Army toNa^'y or Marine Corps, 555. 
 
 to and from Hospital Corps, 5.55, 5()7, 1420. 
 Public moneys contrary to law; punishment for, 1329. 
 TRANSPORTATION: 
 See Mileage; Travel. 
 
 1695 
 
IXDEX. 
 
 Tka.VSPORTATIOX— Continued. 
 
 Alaskan railroads: coal for Navy, troops, etc., 1393, 1394. 
 Approjiriation chargeable with, discharged enlisted 
 
 men, 1274, 1275. 
 Army, furnished naval and marine detachments, 433. 
 transports available for naval personnel and sup- 
 plies, 129S. 
 Contracts in excess of appropriations, 1116, 1288. 
 Di.sabled persons entitled to, when obtaining artificial 
 
 lirabs, 11.57. 
 Discharged enlisted men, 874-876, 1415. 
 
 medical sur\-ey and expiration of enlistment, 1274, 
 1275. 
 Enlisted men whose enlistments expire abroad, 555. 
 Estimates and appropriations for, Navy, 1102. 
 Explosives, 1345, 1346. 
 
 Families of officers and enlisted men on permanent 
 change of station, 1535, 1.530. 
 of officers, enlisted men and employees; transports 
 used for, 1298, 1536. 
 Foreign vessels; charges by American vessels excessive, 
 
 1408. 
 Fuel, 1407, 1408. 
 
 purchase of vessels for, 1515. 
 
 when chargas are excessive, 1482. 
 Furlough certificates, disabled soldiers, sailors and 
 
 marines under treatment, 1554. 
 Government; mileage not allowed, 843, 1395. 
 
 transport to be used ifavailable; families of officers, 
 1298, 1536. 
 Hauling in District of Columbia for departments, by 
 
 Secretary of the Interior, 1553. 
 Household effects, naval personnel, 1535, 1536. 
 Land-grant railroads, 1179, 1180. 
 Marine Corps, 949. 
 Obscene books, etc., 1347. 
 Payment for tickets in advance of travel, 1282. 
 Prisoners, on discharge, 1313. 
 Private property on naval vessel, 985, 986. 
 Provisions and stores. Navy; estimates and appropria- 
 tions for foreign stations, 1103. 
 Supplies: advertising for proposals, 1111. 
 
 vessels of United States to be used unless charges 
 excessive, 1283. 
 Tonnage tax on vessels carrying coal for Navy, 1408. 
 Troops and war material, 1198, 1465. 
 Waiver of; enlisted man discharged abroad, 561. 
 TRANSPORTS: 
 
 Army, available for naval personnel and supplies, 
 1298. 
 inspection by naval officers, 578. 
 naval constructor detailed to duty with, 507. 
 Oovemment transport to be used ifavailable, by fami- 
 lies of officers, 1536. 
 TRAVEL: 
 
 See yfiUage; TransportcUion. 
 
 -Vbroad; actual expenses; shortest route; Secretary's 
 
 approval, 1189, 1272-1274. 
 Accounts approved by Secretary of the Navy, 237, 238, 
 1179, 1189. 
 oaths administered to, 1386. 
 Active ser^-ice in Fleet Naval Reserve, 1449. 
 Actual expenses: naval officers, 842, 843, 1189, 1272- 
 
 1274, 1278. 
 .\ttach^ to diplomatic officer, 828. 
 .\ttending conventions and meetings of societies or 
 associations, 1-371. 
 funeral of officer, 9ft5, 906. 
 Baggage transportation; mileage allowed naval officers 
 
 in lieu of , 1272, 127.3, 1274. 
 Board of Visitors, Naval Academy, 1458. 
 
 TRAVEL-Continued. 
 
 Civil emplo5'ees, insular possessions; to and from 
 United States, 782, 1278. 
 per diem in lieu of subsistence, 1398, 1399. 
 to points outside District of Columbia, 1394. 
 
 outside District of Columbia; report to Con- 
 gress, 1305. 
 Discharged officers, -Vrmy, 943. 
 Enlisted men on discharge, 874-876, 1415. 
 on discharge in debt to Government, 876. 
 on discharge; reenlisting in different branch, 1551, 
 
 1552. 
 on extension of enlistment, 872, 1551, 1552. 
 on transfer to Fleet Naval Reserve, 871. 
 General pro\-isions relating to expenses, 840-846. 
 Land-grant railroads, 1179, 1180. 
 Leave of absence; naval officer, 843, 844. 
 Lighthouse Establishment, naval officers detailed to, 
 
 1298. 
 Marine Corps, 943, 949. 
 
 Mileage books, commutation tickets, etc., paid for in 
 advance of, 1282. 
 not allowed where Government transportation fur- 
 nished, 843, 1395. 
 Naval officer under suspension; expenses, 843. 
 Naval Reserve Force, allowance, 813, 814. 
 
 allowance in Fleet Naval Reserve, 1449. 
 Nurse Corps, female, allowance, 807. 
 Officers and others, under orders: estimates and appro- 
 priations for, Na^-y, 1103. 
 Orders required before expenses allowed, 845, 1179. 
 Outside United States; actual expenses allowed, 1189, 
 
 1272-1274. 
 Passports; Government officers and employees, 1543. 
 Repeated; actual expenses allowed naval officers for, 
 
 842, 843, 1272-1274, 1278. 
 Shortest usually traveled route; Secretary of the Navy 
 
 to determine, 1315. 
 Without troops, under orders; mileage allowed, 1251. 
 Witness before grand jury, naval officer, 843. 
 in Government service, 413. 
 TREASON: 
 
 Decisions relating to, 106. 
 
 Definition and punishment, 106, 107, 1316, 1317. 
 Mail matter advocating, 14S9, 1490. 
 Misprision of; definition and punishment, 1317. 
 TREASURER: 
 
 United States; general provisions relating to, 275-279. 
 TREASURY: 
 
 Location of, 275. 
 TREASURY DEPARTMENT: 
 See Accounting officers; Accounts. 
 Claims settled by, 229. 
 General pro^'isions relating to, 229-279. 
 Regulations, 259, 1098. 
 
 Transcript of records for use in court, 427, 428. 
 TREATIES: 
 
 Estimates of appropriations to contain reference to, 
 1101. 
 TREAT]»IENT: 
 
 See Medical treatment. 
 TRIAL,: 
 
 See Accused; Courts-martial; Jeopardy; New trial. 
 Examination for promotion is not, 629. 
 Impartial, right of accused, 129, 131. 
 Interrupted before completion, 121. 
 Officer may demand after dismissal, 1012. 
 Proceedings of court of inquiry are not, 1055. 
 Public, right of accused to, 129, 130. 
 Speedy, right of accused to, 129, 130. 
 Two trials for same offense, 119. 
 
 1696 
 
INDEX. 
 
 TRIAL TKIP: 
 
 Naval vessel; officer uot entitled to mileage for travel 
 on, 844. 
 ownership before acceptance, 773. 
 TROOPS: 
 
 Definition of, 1179, 1180. 
 Duty without; definition of, 702. 
 Travel without, mileage allowed , 12.51. 
 TROPHY: 
 
 Naval personnel may contest for National Trophy, 
 1413. 
 TRUSSES: 
 
 AppUcation for, 434. 
 Purchase of, 4^34. 
 To whom furnished, 434, 1185. 
 TRUST: 
 
 Corrupting person in Navy to betray, 981. 
 Deserting or betrajdng in time of war or aiding or en- 
 ticing others to, 979. 
 TRUST FUND: 
 
 Checks outstanding more than three years; liabiUty 
 of Government, 277. 
 TUTUILA: 
 
 Governor commissioned by President, 102. 
 Military government of, 109. 
 TYPEWRITERS: 
 
 Exchange of, in part payment for new ones, 1409, 1410. 
 Repaired by General Supply Committee; payment for, 
 
 1557. 
 Sale or exchange restricted, 1543, 1551. 
 Sale to departments at exchange prices by General 
 Supply Committee, 15.57. 
 TYPEWRITING: 
 
 Writing includes, in construing Criminal Code, 1355. 
 TYPHOID PROPHYLACTIC: 
 
 Injections; naval personnel must .submit to, 458. 
 UNDESIRABLE: 
 
 Discharge, enUsted men; refund of enlistment bounty, 
 1292, 1294, 1298. 
 UNIFORM: 
 
 Badges of military societies worn by naval personnel, 
 
 1216, 1224, 1273, 1280, 1299. 
 Discrimination against, Army, Navy, Marine Corps, 
 
 etc., 1360. 
 Enhsted men; clothing outfit furnished, 876, 877, 1203, 
 1403. 
 clothing outfit refimded on discharge, 1292, 1294, 
 1298. 
 Fleet Naval Reserve; outfit required, 1451. 
 Foreign decorations; pubUc wearing of, forbidden, 1187. 
 medals and decorations may be worn by Ameri- 
 can citizens, 1516. 
 Intoxicants not to be sold to military forces wearing, 
 
 1477, 1478. 
 Machinists', prescribed by Navy Department, 1269. 
 Naval Reserve Force; amount credited; refund on 
 discharge, 812, 813, 1444, 1447, 1510. 
 may wear while not in active service, 1511. 
 Retention of, after discharge from Navy, Marine 
 
 Corps, etc., 1.524. 
 Retired oflScers of the Navy, 031. 
 Sale at cost to citizens at training camps. Marine Corps, 
 1464. 
 to marine officers, 1,531. 
 to naval officers and midshipmen, 1521. 
 Sale or exchange of, etc., proliibited, 1121. 
 Unauthorized wearmg of, 1414, 1415, 1515, 1516, 1552. 
 foreign, 1515, 1516. 
 decorations, 1515. 
 Wearing of, after discharge from Nav5', Marine Corps, 
 etc., 1414, 1415, 1524. 
 
 UNITED STATES: 
 
 Absence from; statute of Limitations, luoo. 
 Continental limits; shore duty beyond, 1275. 
 Defined, 1.505. 
 
 to include Porto Rico, 438. 
 under espionage act, 1490. 
 Officers of, defined, 89. 
 Philippine Islands held not included, 1015. 
 Port in Guam is not port of United States, 112. 
 Waters of, construed, 1015. 
 UNITED STATES ATTORNEYS: 
 
 See Attorney General; Department of Justice; District 
 attorneys. 
 UNITED STATES NOTES: 
 
 Disbursements to be made in, 1100. 
 UNITED STATES SHIPPING BOARD: 
 
 See Shipping Board. 
 UNITED STATES TREASURY: 
 
 Location of, 275. 
 UNIVERSAL POSTAL CONVENTION: 
 Use of penalty envelopes authorized, 229. 
 UNIVERSITIES: 
 
 Detail of naval officers to, 4.35. 
 UNLIQUIDATED DAMAGES: 
 
 Accounting officers' jurisdiction, 234. 
 UNREASONABLE SEARCH AND SEIZURE: 
 
 Protection against, 117. 
 UNUSUAL PUNISIOIENTS: 
 
 Decisions relating to, 134. 
 USAGES: 
 
 Regulations include, 1%, 885. 
 USELESS PAPERS: 
 
 Disposal of, by executive departments, 1202, 1203. 
 in buildings under control of departments, 1248. 
 navy yards and stations, 1401. 
 on naval vessels, 1381. 
 VACANCIES: 
 
 Accepting incompatible offices creates, 215. 
 Additional number officers causing: not to be filled, 
 
 1275, 1276. 
 Chiefs of bureaus; retirement creates, 672. 
 Chiefs of bureaus; retirement does not create, 376. 
 Created by operation of law; naval officers accepting 
 
 civil offices, 580. 
 Date of; advancement of officers for heroism, 734. 
 caused by retirement, 649, 1431. 
 commencement of pay on promotion, naval offi- 
 cers, 832, 1178, 1390. 
 Definition of, 048, 832. 
 
 Designations by President to perform duties of; ac- 
 counting officers notified, 1072. 
 FiUing of, after change in law, 648. 
 Midshipmen can not be commissioned except to fill, 
 767, 768. 
 insufficient to fill, 767. 
 Necessary prior to promotion, 453. 
 Promotion to, according to seniority, 646, 680. 
 Rank from date of, on promotion, 649-651, 931, 1459. 
 Recess appointments; no salary if existed while 
 
 Senate in session, 1066. 
 Recess of the Senate; decisions relating to, 99-100. 
 
 temporary- appointments in departments, 216, 217. 
 Retirement of line officers for purpose of creating, 1265. 
 Supply Corps; acting appointments, 472. 
 Suspension of officers in department does not create, 
 
 215. 
 Temporary absence does not create, 473. 
 Temporary; chiefs of bureaus, how filled, 213, 214. 
 executive departments; limitation on appoint- 
 ments in cases of death or resignation, 216. 
 
 1697 
 
INDEX. 
 
 VACANCIES— Continued. 
 
 Temporary; heads of departments; President may fill, 
 99, 212, 214. 
 retirement of Major General Commandant, Marine 
 Corps, 929. 
 VACCINATION: 
 
 Medical injections to prevent disease, 458. 
 VEGETABLES: 
 
 Desiccated; purchase of for Navy, 1115. 
 VEHICLES: 
 
 Appropriation for purchase and operation must be 
 
 specific, 1283, 1284. 
 Automobiles; quarterly reports, 1546. 
 Carriages; restrictions on purchase and use by public 
 
 officers, 1281, 1283, 1284. 
 Definition of, 185. 
 Drivers; restrictions on employment of, by public oflB- 
 
 cers, 1281. 
 Estimates and appropriations for carts, Navy, 1103. 
 
 for, submitted in detail, 1398. 
 Exchange of motor-propelled, as part of purchase 
 price, 1419. 
 of tires in part payment for like articles, 1474. 
 Hauling for departments in District of Columbia by 
 
 Secretary of the Interior, 1553. 
 Motor; sale of, by War Department to other depart- 
 ments and branches, 1531, 1532. 
 Name of department using, must be conspicuously 
 
 painted on, 12S3, 1284. 
 Passenger; restrictions on purchase and maintenance 
 
 1398. 
 Restrictions on purchase and use by public officers, 
 
 1281, 1283, 1284. 
 State tax on Federal automobiles, 48. 
 VENEREAL DISEASES: 
 
 Protection of naval forces against, 1517. 
 VESSELS: 
 
 See Vessels of the Navy. 
 
 Army transports; naval constructor detailed to duty 
 
 with, 507. 
 AuxiUary, of United States; officers and men must 
 
 belong to Naval Reserve Force, 1448. 
 Coast and Geodetic Survey; transferred to Navy 
 
 during war or emergency, 1479, 1480. 
 Commandeering of ocean mail, for use as transports or 
 
 cruisers, 1217. 
 Construction and repair of, by Shipping Board; suit- 
 able for naval purposes, 1466. 
 Definition of "vessel," 185. 
 
 Fish Commission; relation to Navy Department, 1186. 
 Foreign or domestic, in ports of United States, during 
 
 war or emergency, 1485. 
 Lighthouse Service, transferred to Navy during war 
 
 or emergency, 1456, 1457. 
 Merchant; liability of officers to draft in time of war; 
 duties; wages, 1249. 
 marine to be developed for use as naval auxiUary, 
 
 1554, 1555. 
 pennant used by members of Naval Reserve Force 
 commanding, 1448. 
 Ocean mail; construction of: approval by Secretary of 
 the Na^T, 1216. 
 detail of naval officers for duty on, 1217. 
 Owners may enroll in Naval Coast Defense Reserve, 
 
 1453. 
 Public; regulations as to licenses, etc., not applicable 
 
 to, 1135. 
 Salvage by Government-owned; disposition of money 
 
 collected, 1533. 
 Seizure of; belonging to alien enemies, 1477. 
 
 belonging to alien enemies; operated through 
 
 Shipping Board, etc., 1477. 
 in slave trade, 1347, 1348. 
 
 VESSELS-Continued. 
 
 Steam; regulation of, 1135, 1136. 
 Tonnage tax, carrying coal for Navy, 1408. 
 Transportation of coal for Navy in foreign, where 
 
 American charges exces.sivc, 1408. 
 United States; definition of, criminal code, 1353. 
 
 to be used for transporting naval supplies unless 
 charges excessive, 1283. 
 Volunteer patrol sciuadrons; sale of gasoline fuel and 
 oil to, 1455. 
 \TESSELS OF THE NAVY: 
 
 See Contracts; Crimes; Public property; Vessels. 
 Aid or executive of commanding officer, 669. 
 Ambulance ships; female nurses eligible for duty on, 
 
 1303, 1304. 
 Appraisal of, before sale, 1192. 
 
 Appropriations in detail required for repairs and 
 changes, 1299. 
 restrictions on employment of civilians from, 1281. 
 Articles for the Government of the Navy to be dis- 
 played on, 996. 
 Armament; Secretary of the Navy's duties, 342. 
 Assisting vessels in distress; estimates and appropria- 
 tions for, 1103. 
 Auxiliary; officers and men must belong to Naval 
 
 Reserve Force, 1448. 
 Bills of health; estimates and appropriations for, 1103. 
 Boards to inspect and report as to conditioUj 1190. 
 to pass upon use of patented articles by, 776. 
 to report upon repairs to, 776, 777. 
 Captured by enemy; pay of officers and men attached 
 
 to, 891. 
 Captures by; general provisions relating to, 1130, 1131, 
 1137-1147. 
 on inland waters, 1170. 
 Changes in; report to Congress of proposed, 1299. 
 
 capital ships; statutory limit increased to $300,000, 
 1457. 
 Citizenship of officers, 571. 
 Classification of, 772, 1277. 
 
 CoUisions; claims for damages; adjustment of, 1358, 13.59. 
 duties of master or person in charge; penalty, 
 
 1215, 1216. 
 rules for preventing, certain inland waters, 1246, 
 1247. 
 Great Lakes, etc., 1240-1246. 
 harbors, rivers and inland waters, except 
 Great Lakes and Red River of the North, 
 etc., 1251-1261. 
 motor boats, 1356-1358. 
 
 Red River of the North and rivers emptying 
 into Gulf of Mexico, 1125-1130, 1135, 1246, 1247. 
 regattas or marine parades, 1300, 1301. 
 Commandeering of vessels for naval purposes, 1217, 
 
 1218, 1467, 1475, 1476. 
 Commanding officer, acting, pimishments by, 1005. 
 authority over all persons on board, 1442. 
 duty of example and correction, 978, 979. 
 hospital ship; may convene courts and inflict 
 
 punishments, 1441. 
 oaths administered by, 1240. 
 precedence of, 576, 669. 
 punishments inflicted by, 1002. 
 Command of, 772-774, 1277. 
 by Army officers, 444. 
 by retired officers, time of war, 659. 
 hospital ships, 703, 785. 
 marine officer ineligible, 955. 
 Commission, number to be kept in, 774. 
 Condemned; removal and use of outfit and eqmpage, 
 
 779. 
 Confidential plans; filing of, in returns office, 397. 
 
 1698 
 
INDEX. 
 
 VESSELS OF THE NAVY— Continued. 
 
 Construction; annual report of expenditures for, 381. 
 disproportionate expense of finishing, 1190. 
 eight-hour law, 1117, 1219, 1220, 1370, 1371. 
 general provisions relating to, 1195-1197. 
 model tank for experiments, 1250. 
 old material to be used for, 1190. 
 ownership before acceptance, 773, 774. 
 Secretary of the Navy's duties, 342. 
 steel material to be of domestic manufacture, 1195. 
 Courts-martial other than naval, convened on, 65. 
 Customs inspection of, 260. 
 Deaths on; ellects of deceased to be secured for legal 
 
 representatives, 995. 
 Definition of, mider prize laws, 1137. 
 Derelicts; removal of, 1284. 
 Destroying or injuring vessel or equipment, so as to 
 
 hazard safety of, 980. 
 Destruction of valueless, 779. 
 Distilled spirits admitted for medical purposes only, 
 
 989. 
 Divine service to be conducted on Sunday, 979. 
 Employment of, 772, 773. 
 agamst pirates, 1130-1131. 
 assisting vessels in distress, 775, 1103. 
 by militia to maintain law, 114. 
 in coast survey, 1151. 
 in enforcing immigration laws, 1081. 
 in time of peace, 774. 
 protection of customs, 1172. 
 removal of dereUcts at sea, 1284. 
 salvage, 1145, 1147. 
 Secretary of the Navy executes President's orders, 
 
 342. 
 to assist distressed navigators, 775, 1103. 
 to assist vessels in distress; salvage collected for 
 
 service, 1508. 
 to enforce neutrality laws, 1319, 1320. 
 to enforce regulations, regattas or marine parades, 
 
 1300, 1301. 
 to enforce sponge law, 1289, 1290. 
 to prevent aliens fishing in Alaskan waters, 1289. 
 to protect fur seals, 1387. 
 Enlisted men attached to; employment of, when ships 
 
 are docked or laid up for repairs, 1383. 
 Engines; use of patented articles connected with, 776. 
 Equipment; annual report of expenditures for, 381. 
 outfits chargeable to appropriation "Increase of 
 the Navy, construction and machinery," 1408. 
 Espionage; Ulegally obtaining information concerning, 
 
 etc., 1482. 
 Exchange of, prohibited, 778, 779. 
 Exempt from foreign and State interference, 67. 
 First Ueutenant; detail of oflBcer as, 577. 
 Foreign ports; bills of health and quarantine expenses, 
 
 1103. 
 Foreign stations; purchase of suppUes for, without 
 
 advertising, 1113. 
 General provisions relating to, 772-779. 
 Gifts to; acceptance and care of, 1305. 
 Home port; change of, 1536. 
 Home yard; permanent station defined to include, 
 
 1536. 
 Hospital ships; command, 703, 785. 
 
 commanding officer may convene courts and 
 
 infUct punishments, 1441. 
 female nurses eligible for duty on, 1303, 1304. 
 Importing dutiable goods in, 989. 
 Jurisdiction of civil and naval authorities, 292. 
 
 of homicide committed on, 66. 
 License regulations not applicable to officers of, 1135, 
 1136. 
 
 VESSELS OF THE N.WY-Continued. 
 Loan of; for quarantine services, 1186. 
 
 to military schools, 1277. 
 
 to nautical schools, 1297, 1367, 136S. 
 Log; punishments inflicted by commander to be 
 
 entered in, 1002. 
 Lost or captured; credits to paymaster, 266. 
 
 or sunk; reimbursement of enhsted men for 
 effects, 1106. 
 Manning of, 775. 
 Marines detached for service on, 954. 
 
 embarked on; jurisdiction, 1442. 
 Marine officer ineligible for command of, 955. 
 Marriages on board, 575. 
 Medical officer of, to report upon health of persons 
 
 sentenced by summary courts, 1009. 
 Missing, fixing date of loss, 268. 
 Model tank for experiments, 1250. 
 Monitors, naming of, 1261, 1262, 1304, 1305. 
 Motor boats; regulation of, on navigable waters, 1356- 
 
 1358. 
 Names stricken from Navy Register, 1190. 
 Naming of, 774. 
 
 battle ships, 1261, 1262. 
 
 monitors, 1261, 1262, 1304, 1305. 
 Navigation of; duties of Hydrographic Office, 387. 
 Navigation officer, detail of officer as, 577. 
 Officering of, 775. 
 Official Register of the United States not to contain 
 
 names and information concerning, 1236. 
 Ordinary, laid up in, 774, 895, 897. 
 Out of commission, in time of peace, 774. 
 Ownership of, in possesssion of builders, 773, 774. 
 Passengers dying on; disposition of effects, 995. 
 Passengers; report of, to Secretary of the Navy, 995. 
 Patented articles used in connection with, 776. 
 Persons on board; complete lists to be furnished 
 
 Secretary of the Navy, 995. 
 Pilotage and towage; estimates and appropriations 
 
 for, 1103. 
 Pilotage; State discrimination against prohibited, 1130. 
 Pilots; rules for the government of, 1135. 
 Piracy; use for suppression of, 1130, 1131. 
 Ports; laid up iu ordinary in, 774. 
 President's direction in writing necessary for sale at 
 
 less than appraised value, 1192. 
 Prisoners; confinement of merchant seamen on, 576. 
 Private property, receiving on board, 985. 
 
 lost or damaged on; reimbursement of naval 
 personnel, 1492-1494. 
 Prizes captured by, 1137-1147. 
 
 on inland waters, 1170. 
 Procurement of, during war or emergency, by contract 
 
 with owners, 1217, 1218, 1453, 1467, 1475, 1476. 
 Provisions; inspection and preservation of, £G5. 
 Punishments by acting commanding officer, 1005. 
 
 by commanding officer, 1002. 
 
 by naval militia officers on board, 71. 
 
 on board, restricted, 1002. 
 Purchased; naming of, 774. 
 Purchase of, for transportation of fuel, 1482, 1515. 
 (iuarantine expenses; estimates and appropriations for, 
 
 1103. 
 Hating of, 774. 
 
 Receiving ship; honorably discharged men allowed 
 home on, 1201, 1202. 
 
 not a seagoing vessel, 897. 
 
 sea pay for duty on, 879. 
 Records and files which have become useless; disposal 
 
 of, 1381. 
 Records required to be kept by, 995, 996. 
 Register; names stricken from, 1190. 
 
 1699 
 
INDEX. 
 
 \'ESSELS OF THE NAVY— Continued. 
 Register; elTect of striking name from, 779. 
 Regulations as to licenses, etc., not applicable to, 1135. 
 Repairs, 776, 777. 
 
 annual report of expenditures for, 381 
 
 and changes to capital ships: statutory limit ir- 
 
 ereased to $:{00,000, 1457. 
 disproportionate; names stricken from Navy Reg- 
 ister, 1190. 
 old material to be used for, 1190. 
 report to Congress of repairs made, 1314. 
 of repairs proposed, 1299. 
 Reports to Congress, vessels stricken from Navy Regis- 
 ter, 1190. 
 Reser\'e material for fitting out, in time of war or emer- 
 gency, 1473, 1482. 
 Rules for preventing coUisions at sea; international, 
 1204-1215. 
 certain inland waters, 1246, 1247. 
 Great Lakes, etc., 1240-1246. 
 
 harbors, rivers and inland waters, except Great 
 Lakes and Red River of the North, etc., 1251- 
 1261. 
 motor boats, 1356-1358. 
 
 Red River of the North and rivers emptying into 
 Gulf of Mexico, 112.5-1130, 1135, 1246, 1247. 
 Rules governing regattas or marine parades, 1300, 1301. 
 Sales, 777-779, 1457. 
 
 annual report of, 381. 
 bids inadequate; disposition of vessel, 779. 
 of useless papers on, 1381. 
 
 of vessels that have been stricken from Navy 
 Register, 1192. 
 Salvage awarded to; distribution, 1145, 1147. 
 
 decisions relating to, 775, 776. 
 Services rendered for other departments; adjustment 
 
 of appropriations, 579, 1409, 1536. 
 Shipwreck or other marine disaster, compensation for 
 
 personal effects, 272, 1492-1494. 
 Sick and disabled on; separate compartment for treat- 
 ment of, 995. 
 State discrimination against; pilotage rates, 1130. 
 
 interference with, 49. 
 Steerage officers; ensigns, 704. 
 Stranding or hazarding or running upon rocks or 
 
 shoals, 9S0, 985. 
 Stricken from register; sea pay for duty on, 879. 
 
 from register; status of, 779. 
 Sunk or captured; compensation for lost effects, 269, 
 1492-1494. 
 settlement of accounts of enlisted men, 268. 
 Sunk or destroyed; arrears of pay due enlisted men, 264. 
 Towage; estimates and appropriations for, 1103. 
 Trading on, for private benefit; punishment, 989. 
 Transfer of, to Shipping Board, 1467. 
 Transporting gold, silver or jewels on, 985. 
 Trial trip; ownership before acceptance, 773. 
 
 naval officer not entitled to mileage for travel on, 
 844. 
 Vessel of the United States, defined: criminal code, 
 
 1353. 
 Watch officer, detail of officer as, 577. 
 
 and division officers; ensigns assigned as, 704. 
 Witnesses transported on, from foreign country, 420, 
 
 576. 
 Wrecked, lost or captured; court-martial or court of 
 inquiry to investigate, 891, 996. 
 or lost; pay of officers and men separated from, 891. 
 status of crews; authority of officers, 996. 
 VETERANS: 
 
 See M'ar Risk act. 
 
 Artificial limbs allowed, 1156, 1157, 1181, 1217. 
 
 VETERANS— Continued . 
 
 Compensation for death or disability, 1498-1501. 
 not assignable or subject to debts, etc., 1496. 
 under war risk act; excludes benefits of other laws, 
 1.300. 
 not affected by termination of war, 1498. 
 Death; for crime, bar to benefits, 1500. 
 
 to be officially recorded, 1500. 
 Discharge or dismissal for cause, bar to benefits, 1496. 
 Dismissal, dishonorable or bad-conduct discharge ex- 
 cludes compensation, 1500. 
 Hospital and medical treatment, 1499. 
 Insurance under war risk act: effect of termination of 
 
 war with Germany, 1501. 
 Medical examinations and treatment; refusal to sub- 
 mit, 1499, 1500. 
 Pensions; effect of war risk act on, 1155. 
 Preference for appointment and retention in civil es- 
 tablishment, 338, 7S.5, 1065, 1180, 1383, 1524, 1526, 1.5.30. 
 Service pension allowed disabled enlisted men. Navy 
 
 and Marine Corps, 1154, 1155. 
 Trusses furnished to, 434, 1185. 
 
 War risk act: effect of, on allowance to enlisted men, 
 Na\-y and Marine Corps, 1155. 
 • compensation not allowed in addition to pension 
 or gratuity, 1499. 
 Widows and orphans of, preferred for retention in civil 
 establishment, 1180. 
 VETO: 
 
 Bill altering military records, 35. 
 
 annulling court-martial finding, 35. 
 restoring dismissed officer, 34. 
 
 retired officers, 35, 36. 
 to render retired officers not amenable to court- 
 martial, 643, 644. 
 Power of President, 34. 
 VICE AD3IIRALS: 
 
 Allowances same as Lieutenant general, 1512. 
 
 Fleet officers to have rank of, 1481. 
 
 Pay, 791, 797, 1481. 
 
 Rank with lieutenant generals, 662. 
 
 Secretaries allowed for, 455. 
 
 and clerks to, at sea; civilians not allowed, 1182. 
 pay of, 794, 805. 
 VICINITY: 
 
 Definition of, 843. 
 VIRGIN ISLANDS: 
 
 Citizenship in, 113, 1472. 
 
 Naval officer may be appointed to office in, 1075. 
 
 may be detailed as governor of, 1470. 
 Status; not organized territory, 113, 1075. 
 Temporary government provided for, 1470-1472. 
 VIRTUE: 
 
 Commanding officers to show example of, 978. 
 VISITORS: 
 See Boards. 
 
 Board of. Naval Academy, 1197, 1458. 
 Naval Observatory, 1276. 
 VOID: 
 
 Bad-conduct discharge of enlisted man, 1008-1009. 
 Dismissal of naval officer, 1012-1014. 
 Enlistment, 552. 
 
 court-martial jurisdiction during, 976. 
 VOIDABLE: 
 
 Enlistment, 550. 
 
 court-martial jurisdiction during, 977. 
 VOLUNTARY BONDS: 
 Qe.& Bonds. 
 Defined, 476. 
 VOLUNTEER NAVAL RESERVE: 
 General provisions relating to, 1454. 
 
 1700 
 
n^DEX. 
 
 VOLUNTEER OFFICERS: 
 
 Transferred to regular Navy; credited with sea serv- 
 ice, 530. 
 VOLIJXTEER PATROL SQUADRONS: 
 
 Sale of gasoline fuel and oil to vessels of, 1455. 
 VOLUNTEERS: 
 
 List of persons eligible for commissions in, during war, 
 
 1392. 
 Pay of; same as regular Navy, 829. 
 VOTE: 
 
 Naval personnel, in territories, 1075. 
 
 personnel's right to, not restricted by criminal 
 code, 1321. 
 of member of court-martial not to be disclosed, 1019. 
 State elections; naval officers not to interfere with, 
 1079. 
 VOTE OF THANKS: 
 
 See Thanks of Congress. 
 WAGES: 
 
 See Pay of civil establishment; Pay of Naval Establish- 
 ment. 
 Assignment of, naval service, 573, 892. 
 Fraudulent claims for, 1323. 
 Navy yard employees; how fixed, 1177. 
 WAITING ORDERS: 
 
 Commutation of quarters, 700. 
 Pay of naval officers, 824, 825. 
 Retirement distinguished from, 643. 
 
 wai\t:r: 
 
 Accused; failure to arraign, 126. 
 
 privilege against self-crimination, 121. 
 right to confront witnesses, 132. 
 right to be present at trial, 126-128. 
 rights and privileges, 121, 132, 1026, 1045, 1057, 1058, 
 1062. 
 
 Apportionment of appropriations; head of depart- 
 ment must make in writing, 1105. 
 
 Candidate for promotion; right to appear before board, 
 723, 728. 
 
 Defects in charges and specifications not promptly ob- 
 jected to, 1045. 
 
 Mileage; officer can not be deprived of statutory al- 
 lowance, 844, 845. 
 
 Objections by accused before court-martial, 1026. 
 
 Pay or allowances, 208, 414, 561, 825, 877. 
 
 Regulations, 200. 
 
 Retirement pri\'ileges, 521, 523. 
 
 Statute of limitations, by accused, 1057, 1058, 1062. 
 
 Statutory requirements for appointment as midship- 
 man, 750. 
 
 Transportation home, enlisted man discharged abroad, 
 561. 
 WAR: 
 
 See Articles for the government of the Navy; Battle; In- 
 surrection. 
 
 Acting assistant surgeons appointed during, 1184. 
 
 Advancement of officers for conduct in battle, 453, 454, 
 734-736, 921, 933, 1275, 1276, 1289. 
 
 Allies; failing to assist vessels of; punishment. Navy, 
 980. 
 
 Authorized enlisted strength increased during national 
 emergency, 1403, 1.528. 
 
 Burial in national cemeteries of persons having service 
 during, 1163. 
 
 Captured vessels; officers and men attached to; pay 
 of, 891. 
 
 Capture of prize by naval vessels, 1137-1147, 1170. 
 regulation by Congress, 38. 
 
 Civilians commissioned in regular Na\'y during, 1392, 
 1393. 
 
 Coast and Geodetic Survey transferred to Navy dur- 
 ing, 1479, 1480. 
 
 WAR— Continued. 
 
 Coast Guard; how employed during, 1400, 1456. 
 Commandeering of factories; procurement of vessels, 
 etc., during, 1475, 1476. 
 merchant vessels for use as transports or cruisers, 
 
 1218. 
 ocean mail vessels for use as transports or cruisers, 
 
 1217. 
 supplies during, 1413. 
 vessels for naval purposes, 1467. 
 Conquest of territory, 10. 
 Contraband of; purcLase without advertising for. 
 
 Navy, 1113. 
 Courts-martial; how constituted during, 1494. 
 
 how convened during, 1442. 
 Delivering messages from enemy, punishment by 
 
 naval court-martial, 9S1. 
 Desertion during battle; punishment. Navy, 980. 
 during; effect of resolution terminating war, for 
 certain purposes, 1558. 
 forfeiture of citizenship rights, 981, 1077, 1078. 
 penalty for enlisting persons guilty of, 994. 
 punishment, 979. 
 statute of limitations, 10.57. 
 enticing others to desert in time of, 979. 
 or betrayal of trust during, or enticing others, 979. 
 Destroying public property during, 1504, 1.505. 
 Dismissal of officers during, 441, 1010-1014. 
 Distinguished conduct during; advancement of officers 
 for, 453, 4.54, 734-736, 921, 933, 1275, 1276, 1289. 
 enhsted men rewarded for, 512, 1275. 
 memorial to naval officers, 1314. 
 Drafting officers of merchant vessels for service dur- 
 ing, 1249. 
 Enemy defined, 892. 
 
 Espionage; enforcement of neutrality, etc., 1482-1490. 
 Furloughed enlisted men subject to recall during, 1436. 
 Germany and Austria-Hungary; date of termination, 
 
 for certain purposes, 1557-1559. 
 Giving intelligence to enemy or rebel ;pimishment for, 
 
 979. 
 Government of conquered territory, 41, 109. 
 Insane prisoners and interned persons under jurisdic- 
 tion of Navy Department, 1417, 141S. 
 Insurrection; general provisions relating to, 1169-1172. 
 Intercourse with enemy or rebel, punishment for, 979. 
 Internment of naval officers in neutral country; pay 
 
 and allowances during, S92. 
 Inventions; patents withheld during, 1 194, 1501, 1502. 
 Jurisdiction over civihans during, 44. 
 
 over soldiers during, 42. 
 Lighthouse Service; status and duties during, 1456, 
 
 1457. 
 Loss or damage of private property rturing; reimburse- 
 ment of naval personnel, 1492-1491. 
 Manufacture and possession of explosives during, 1492. 
 Medals and decorations interchanged between United 
 
 States and foreign forces, 1516, 3 517. 
 Medals of honor, etc., for naval p-!rsonnel distinguish- 
 ing themselves in battle, etc.. 512-515, 875, 1402, 
 1521-1523. 
 Men missing in action; allotments ".ontinued, 1520, 1521. 
 Naval records of; collection, pubhcation, etc., 12.s3, 
 
 1295, 1389. 
 Naval Reserve Force; active serv ce during, 1443, 1447, 
 
 1452. 
 Na^'y statutes relating to; cffccton.of resolution termi- 
 nating war with Germany for certain purposes, 1559. 
 Philippine insurrection, 272. 
 
 Plans for; duties of Chief of Naval Operations, 1401. 
 Political questions, jurisdiction of courts, 105. 
 Power of Congress, 38. 
 
 1701 
 
INDEX. 
 
 WAR— Continued . 
 
 Power of President, 38, 39. 
 
 Precedence of Naval Reserve Force members during, 
 
 1511. 
 Procurement of vessels during, by contract with 
 
 owners, 1453. 
 Promotion of Naval Reser\-e Force members during, 
 
 1510. 
 Property of belligerents, 39. 
 Public Health Service; duties during, 1279. 
 
 subject to Navy laws during, 1491. 
 Rear admirals; selection of, during, 454. 
 Red Cross; use of, during, 1369, 1370. 
 Reser^-e material. Navy, for use during, 1473, 1482. 
 Retired enlisted men employed on active duty during, 
 872, 873, 890, 1269, 1299, 1405, 1406, 1451, 1514, 
 1546, 1.547. 
 Retired officers; active duty, pay and allowances; pro- 
 motion, 656, 1512, 1513. 
 assignment to comimand during, 659. 
 Sea duty; staff officers who have been chiefs of bu- 
 reaus, 578. 
 Seizure of vessels belonging to aUen enemies, 1477. 
 Selection of commanding officers, fleets and subdivi- 
 sions, during, 1481. 
 Shore duty during; line officers of Navy; eligibility for 
 
 promotion by selection, 1434. 
 Spies, etc., punishment by naval court-martial, 981. 
 Termination of, with Germany; date of, for certam 
 purposes, 1557-1559. 
 effect of, on war risk act, 1498, 1501. 
 Time of war, construed, 981. 
 Transportation of troops and material during; how 
 
 expedited, 119S, 1465. 
 Waiver of eight-hour law during, 1370, 1371. 
 Yielding or cowardly conduct in battle; punishment 
 for, 980. 
 WAR DEPARTMENT: 
 
 See Army; Articles for the Governvient of the Navy; 
 Articles of War; Eiecutiie departments; Marine Corps; 
 Public property. 
 Ammunition; transfer to other departments, 1527. 
 Motor \ chicles sold to other departments, 1531, 1532. 
 Naval officers detailed to duty under, 507, 578. 
 supervisor of New York Harbor, 1198, 1199. 
 Sale of ordnance or ordnance stores to other depart- 
 ments, 1388. 
 Transfer of naval ordnance to, 1515. 
 WAR MATERIAL: 
 
 Destruction of, during war; punishment, 1504, 1505. 
 WARRANT MACHINIST: 
 
 Title changed to machinist, 1314. 
 WARRANT OFFICERS: 
 
 See Machinists; Pay clerks; Pay of Naval Establishment 
 
 Pharmacists . 
 Acting; appointment of, 525. 
 
 appointments as machinists, 1269. 
 
 made permanent; machinists; regulations,1269. 
 discharge and enlistment of, 525. 
 pay, 794, 803. 
 Age for appointment as, 512. 
 
 Appointment as commissioned warrant officers, 1266, 
 1267, 1282. 
 as ensigns, 1277, 1280-1282. 
 of boatswains, gunners, sailmakers and carpenters, 
 
 509. 
 of convicted deserter from the Army, 573. 
 of, not a promotion, 522. 
 
 to commissioned ranks for war service; may revert 
 to former status, 1550, 1551. 
 Assistant paymasters appointed from, 510. 
 
 WARRANT OFFICERS-Continued. 
 
 Boatswains, gunners, carpenters and sailmakers, pro- 
 motion of, 1206, 1267. 
 Command, right of, 1267. 
 Commissioned officer defined to include, 1496, 
 Commissioned warrant officers; appointed from, 1266, 
 1267, 1282. 
 chief warrant officers designated as, 512. 
 Deposits; enUsted men appointed as, 524. 
 Detailed as storekeeper on foreign station, 579, 
 Dismissal of; sentence must be confirmed by President, 
 1036. 
 pharmacists removable by Secretary of the Navy, 
 1262. 
 Enlisted men appointed as, not discharged from en- 
 listment, 523. 
 appointed as, not promoted, 513. 
 
 as pharmacists, 1420. 
 preference in appointment, 512, 534, 1268, 1269, 
 promoted to pharmacist ; when pay commences, 830. 
 Ensigns appointed from, 1277, 1280-1282. 
 Examination for promotion, 1267. 
 Foreign shore duty; pay, 1529. 
 General provisions relating to, 509-525. 
 Gunners may be required to perform duty of keeper of 
 
 the magazine, 533. 
 Heat and light allowance, 1430. 
 Leave of absence, 1430. 
 Line and staff, 448-449. 
 
 Machinists, appointment of, qualifications, etc., 1268, 
 1269. 
 promotion of, to chief machinist, 1314. 
 Marine Corps, 918, 919, 1462, 1479. 
 foreign shore duty pay, 1474. 
 reserve service credited to, 1529, 1530. 
 Mates appointed as, 522. 
 Mates are not, 517. 
 Naval Reserve Force; appointment of warrant officers 
 
 in, 1444,1451. 
 Not commissioned officers, 511. 
 
 enlisted men, 525. 
 Number and appointment of, 509. 
 
 of pharmacists, 1419, 1420. 
 Pay clerks, acting pay clerks and chief pay clerks, 1406, 
 
 1407. 
 Pay of, 794, 803, 1267, 1302, 1529. 
 
 commissioned warrant officers, 803. 
 on shore duty, 1472. 
 Pharmacists, Hospital Corps, 1262, 1419, 1420. 
 Promotion of, 510. 
 of machinists, 1314. 
 of pay clerks, 1406, 1407. 
 of pharmacists to chief pharmacist, 1420. 
 to commissioned warrant officer, 1286, 1267, 1282. 
 to ensign, 1277, 1280-1282. 
 Punishments inflicted upon, by commanding officer, 
 
 1002. 
 Quarters, 697, 827, 1267, 1275. 
 Rank, assimilated, may be assigned to, 704. 
 of machinists, 1269. 
 
 of machinists on promotion to chief machinist, 1314. 
 of, on promotion to commissioned warrant officers, 
 1267. 
 Reduction of, court-martial sentence, 524. 
 Regulations, copy to be furnished to, 787. 
 Retired; active duty in war or emergency; promotion; 
 pay and allowances, 1512, 1513. 
 active duty pay, 913. 
 
 creditable record, etc., 1503, 1504. 
 pay, 1303. 
 Retirement of, 511, 512, 602. 
 machinists, 1269. 
 
 1702 
 
INDEX. 
 
 WARRANT OFFICERS-Continued. 
 
 Reverting to status of; after failing to qualify for higher 
 commissioned grades, 1550, 1551. 
 after service iu Naval Reserve Force, 1529, 1530. 
 Revocation of appointment, 524. 
 Service in Naval Reserve Force credited to, 1529, 1530. 
 Special examination for promotion of enUsted men to, 
 
 514. 
 Title of, 512. 
 
 warrant machinist changed to macliiuist, 1314. 
 Uniform, machinists, prescribed by Navy Department, 
 
 1269. 
 Warrant machinist; title changed to machinist, 1314. 
 WARRANTS: 
 
 Appropriations drawn from Treasury on, 1104. 
 Arrest of miUtary offenders without, 117, 118. 
 Defined; commission distinguished from, 511. 
 Payment of pubUc accounts, 276. 
 Search and seizure, 117. 
 WAR RISK ACT: 
 See Veterans. 
 Allotments, 1497, 1498. 
 
 men missing in action; continued payment, 1520, 
 1521. 
 Benefits not assignable, not subject to debts, etc., 1496. 
 Compensation, death or disabiUty, 1498-1.501. 
 excludes benefits under other laws, 1500. 
 not allowed if receiving pension or gratuity under 
 
 other laws, 1499. 
 provisions not affected by termination of war, 1498. 
 to Navy Nurse Corps (female) in lieu of employees' 
 compensation benefits, 1500. 
 Death; for crime excludes benefits, 1500. 
 
 to be officially recorded, 1500. 
 Definitions, 1496. 
 
 Detail of naval surgeons to bureau of, 1495. 
 Director; powers of, 1495. 
 
 Discharge or dismissal for cause, bar to benefits, 1496. 
 Effect of, on service pensions, enlisted men. Navy and 
 
 Marine Corps, 1155. 
 Gratuities; laws providing for, not applicable to per- 
 sons in service on or after October 6, 1917; 1500. 
 Hospital and medical treatment, 1499. 
 Information furnished bureau of, by heads of depart- 
 ments, 1495, 1496. 
 Insurance; amount, persons to whom applicable, 1501. 
 effect on, of termination of war with Germany, 1501. 
 time for making application, 1501. 
 Medical examinations and treatment; refusal to sub- 
 mit to, 1449, 1500. 
 Pension laws appUcable to persons in service on or 
 
 after October 6, 1917; 1500. 
 Text of act, 1495-1501. 
 WASTE: 
 
 Of public property, punishment for, 985. 
 WASTE PAPERS: 
 
 Disposal of, by executive departments, 1202, 1203. 
 in buildings under control of departments, 1248. 
 on naval vessels, 1381. 
 navy yards and stations, 1401. 
 W.ATCIOIEN: 
 
 See Civil establishment. 
 
 Estimates and appropriations for, Navy, 1103. 
 Pay of, etc., 204, 205. 
 WATCH OFFICERS: 
 
 Detail of, on naval vessels, 577. 
 Ensigns; duty as, 704. 
 WATERS OF THE UNITED STATES: 
 
 Construction of, 1015. 
 WATER TENDERS: 
 Increase in pay of, 1495. 
 
 WEAPONS: 
 
 Right of people to bear arms, 117. 
 WEATHER BUREAU: 
 
 Data furnished to Hydrographic Office, 388. 
 Jurisdiction of Hydrographic Office and, 388. 
 WEIGHERS: 
 
 Fuel purchased for public service, 1110. 
 WEST INDIAN ISLANDS: 
 
 See Virgin Islands. 
 WEST POINT: 
 
 See Military A cademy. 
 WHARF: 
 
 Not pubUc building, 285. 
 State toll for use of, 50. 
 WHARFAGE: 
 
 Estimates and appropriations for, Navy, 1103. 
 WHEELS: 
 
 Estimates and appropriations for timber-wheels, 
 Navy, 1103. 
 WHOLLY RETIRED: 
 Defined, 618, 630, 911. 
 
 Defined and distinguished from discharge and dis- 
 missal, 97. 
 Disabihty not incident to the service, 617. 
 Distinguislied from retirement, 911. 
 Names of officers omitted from Navy Register, 631. 
 S}monymous with discharge, 630. 
 WIDOWS: 
 
 Of discharged erfiisted men; preferred for civil em- 
 ployment, 1180. 
 Payment of death gratuity to, 1546, 1547. 
 WILKES'S EXPEDITION: 
 
 Engraved plates of; use by Navy Department, 380. 
 WITNESSES: 
 
 See Courts-martial; Evidence; Self-crimination; Sub- 
 poenas. 
 Absent; accused responsible for absence, 132. 
 
 admission of what would be testified by, 132, 1055. 
 court-martial may try additional charges on return 
 of, 1025. 
 Accoimting officers may administer oaths to, 274. 
 Accused entitled to process for obtaiaing, 129, 132, 133. 
 entitled to confront, 129, 131, 132. 
 unable to hear, 126. 
 Appropriation for compensation of, naval courts, 1103, 
 
 1310. 
 Assistant head of department required to give testi- 
 mony, 422. 
 Boards of investigation, sworn, 217, 218. 
 Bonds, 483. 
 Bribery of, 1336. 
 
 Character, right of accused to obtain, 133. 
 Civilian, before courts-martial and courts of inquiry; 
 
 compulsory process, 1310. 
 Compelhng testimony of, in departmental cases, 220. 
 Competency of; conviction by court-martial, 1047. 
 Congressional committees; protection of, 421. 
 Contempt of court punishable by general court-martial, 
 
 1021. 
 Courts-martial compelling attendance of, 1021, 1022, 
 1310. 
 fees must be paid or tendered in advance, 1022. 
 per diem pay; estimates and appropriations for. 
 
 Navy, 1103. 
 recalled on return of absent member, 1032. 
 Courts of inquiry, cross-examination of, 132, 1056. 
 may summon, 1055, 1310. 
 
 per diem pay; estimates and appropriations for. 
 Navy, 1103. 
 Cross-examination of, departmental cases, 219. 
 Cumulative, right of accused to obtain, 132. 
 
 1703 
 
IXDEX. 
 
 WITNESSES— Continued. 
 
 Degradation of, naval courts, 1310. 
 
 Departnipnts may seciu-e attendance of; in connection 
 
 with claims, 219. 
 Depositions for use before naval courts, 1311, 1312. 
 Examining boards for promotion; testimony of, re- 
 corded, 724. 
 E.xpenses; naval officer before grand jury, 843. 
 Experts, 412, 611, 1025. 
 
 accounting officers' jurisdiction as to payment of, 
 
 241. 
 before courts of Inquiry, 1056. 
 Fees; additional allowance to witness outside of juris- 
 diction, 411. 
 against United States, 413. 
 
 appropriation for paying, 220, 413, 418, 1103, 1310. 
 attending from foreign country, 420. 
 
 in departmental cases, 220. 
 commission to take testimony, 424. 
 courts-martial, 415. 
 District of Columbia employee, 415. 
 employed in Government service, 413. 
 estimates and appropriations for. Navy, 1103, 1310. 
 expenses of, in preparing to testify, 412. 
 experts, 412. 
 
 extradition proceedings, 416. 
 for giving depositions, 425. 
 general provisions relating to, 410-420. 
 Government employees; character of expenses al- 
 lowed, 417. 
 Government employee; witness for the Govern- 
 ment, 415. 
 Government employee before court-martial, 415. 
 Government employee; witness for private party, 
 
 415. 
 Government officers before State courts, 416. 
 identifying party under charges, 415. 
 increased allowances in certain States, 412. 
 naval courts; payment of, 1310. 
 naval officer testifying against the Government, 
 
 415. 
 naval personnel, 414. 
 officers of courts not allowed, 413. 
 outside of jurisdiction, 417. 
 prisoners, 414. 
 Senators, 414. 
 temporary employees, 414. 
 transported on pubUc vessel, 420. 
 Government employees and officers, 413. 
 leave of absence, 417. 
 salary allowed, 415. 
 Heads of departments; jurisdiction of courts to sub- 
 poena, 424. 
 may decline to testify or produce records, 194. 
 Imprisonment to insure appearance of, 425, 426. 
 Interpreters are not, 412. 
 
 Investigating officer may administer oath to, 217, 218. 
 Members of Congress, 33. 
 
 of court-martial as witness, 131, 1019. 
 Mileage, 410. 
 
 naval courts; payment of, 1310. 
 no testimony given, 415. 
 Naval boards may administer oaths to, 217, 21S. 
 Naval courts; refusal to appear or testify; punishment, 
 
 1310. 
 Naval militia members before naval court-martial, 414. 
 Naval personnel, allowances of, 414. 
 Oath of, before any court-martial, 1021. 
 
 WITNESSES-Continued. 
 
 Perjury before general court-martial, 1021 
 Prisoners, 414. 
 
 securing attendance of, 403. 
 Prize cases; fees, 1147. 
 
 Protection of, in examinations by departments, 219. 
 Recognizance required to insure appearance of, 425, 426. 
 Retired officers, 414. 
 
 attending court-martial as, 658. 
 Right of accused to be confronted with, in naval cases,68. 
 Self-crimination, protection, 121, 1310. 
 protection for refusing to answer, 403. 
 requiring witness to answer, 1023. 
 Senators; compensation, 414. 
 Subpoena; form of, 425. 
 Summary courts-martial; oath of, 1006. 
 Transportation from foreign port, 420, 576. 
 WIVES: 
 
 Officers and enUsted men; transportation furnished 
 to, 1535. 
 WOMEN: 
 
 Clerkships open to, 202. 
 Compensation of, in departments, 204. 
 Enlisted man defined to include, 1496. 
 Sureties on bonds; married, 484, 485. 
 WOOD: 
 
 See Contracts. 
 WORDS: 
 
 Mutinous or seditious; punishment for uttering in 
 
 Na\'y, 984. 
 Provoking or reproachful; use of, toward other persons 
 in Navy, 984. 
 WORKMEN: 
 
 Eight-hour law applicable to, 1117, 1219, 1220, 1370, 1371. 
 WORLD WAR: 
 
 Burial in national cemeteries of persons having service 
 during, 1163. 
 WORSHIP: 
 
 Form of; chaplains, 502. 
 
 Naval personnel earnestly recommended to attend 
 divme services, 979. 
 WOUNDS: 
 
 Line of duty; definition of, 710. 
 not bar to promotion, 709. 
 WRECK: 
 
 See Vessels of the Navy. 
 
 Marking and removal of, international agreement, 1223. 
 Presumption of, missing vessels, 268. 
 WRITERS: 
 
 Employment from naval appropriations restricted,1281. 
 WRITING: 
 
 False; punishment for offenses not otherwise specified 
 
 1332. 
 Forgery of, 1322, 1323. 
 Includes printing and typewriting, in construing 
 
 Criminal Code, 1355. 
 Larceny of, value, 1350. 
 WRITS: 
 
 See Certiorari; Habeas corpus; Mandamus; Prohibition; 
 Replevin. 
 YARDS AND DOCKS: 
 
 SeeBureaiis; Chief s of bureaus . 
 YOUNG MEN'S CHRISTIAN ASSOCIATION: 
 
 Heat and Ught furnished buildings in navy yards, 1366. 
 ZOOLOGICAL PARK: 
 
 Acquisitions for; heads of departments to assist in 
 collection, 1204. 
 
 1704 
 
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